- On May 31, 2011, the United States Supreme Court invited the Acting Solicitor General to file a brief articulating the Government’s position on whether the U.S. Court of Appeals for the Third Circuit properly dismissed a putative class action lawsuit against various cell phone makers, wireless service providers, and related trade associations for failing to protect consumers from cell phones’ allegedly harmful radio frequency emissions. In its October 2010 decision, the Third Circuit concluded that such suits, based principally on state-law tort claims, were preempted because the FCC “is in a better position to monitor and assess the science behind RF radiation than juries in individual cases.” Farina v. Nokia Inc., No. 10-1064.
- On May 20, 2011, the US District Court for the District of Maryland refused to dismiss the State of Maryland’s Telephone Consumer Protection Act (TCPA) lawsuit against various parties that participated in “political robocalls” last Election Day, November 2, 2010. Parties affiliated with Republican challenger Robert Ehrlich Jr.’s campaign retained Robodial.org, which auto-dialed over a hundred thousand registered Democrats to give the following pre-recorded message: “Hello. I’m calling to let everyone know that Governor O’Malley and President Obama have been successful. Our goals have been met. The polls were correct and we took it back. We’re okay. Relax. Everything is fine. The only thing left is to watch it on TV tonight. Congratulations and thank you.”
The State claims that the calls violated TCPA, because they did not identify who was making the call, on whose behalf the calls were made, or the caller’s telephone number or address. The defendants moved to dismiss the suit on the grounds that TCPA is unconstitutional as applied, and that the calls fell within the “not made for a commercial purpose” exception in the statute. The federal court denied the motion, finding that the exemption for non-commercial calls under one section of TCPA did not excuse their failure to follow the other TCPA disclosure requirements. The court likewise rejected the constitutional arguments, finding that TCPA is content-neutral and thus does not “place greater restrictions on the speech of the defendants than those placed upon anyone else using an automatic dialer.” State of Maryland v. Universal Elections, Civ. No. 10-3183 (D. Md.).