• On May 24, 2010, the U.S. District Court for the District of Arizona denied North County Communications’ motion for reconsideration of the court’s April 30, 2010 order dismissing its intercarrier compensation collection action against various CLECs, without prejudice, for lack of subject matter jurisdiction and because the Arizona Corporation Commission has primary jurisdiction. The district court rejected North County’s argument that the court misapplied the Ninth Circuit’s recent California Catalog case, which affirmed a California district court’s similar dismissal of North County’s claims against wireless carriers and CLECs on the ground that 47 U.S.C. section 251(b)(5) does not create a private right of action to sue in federal court. The court also rejected North County’s argument that, in light of both the FCC’s and California PUC’s refusal to resolve North County’s claims on the merits, North County has essentially been denied any forum to resolve its reciprocal compensation claims. The court noted that the CPUC dismissed North County’s claim without prejudice pending a resolution of North County’s appeal of the FCC ruling to the D.C. Circuit and contingent on receiving “a commitment by the Federal Communications Commission to the use of a rate determined reasonable by [the CPUC].” The court did not explain what would happen if the CPUC does not receive its expected “commitment” from the FCC, but denied relief under primary jurisdiction grounds in any event. N. County Commc’ns Corp. v. MacLeod USA Telecomms. Servs. Inc., No. CV-09-2063-PHX-GMS (D. Ariz.).
  • On May 21, 2010, the U.S. Court of Appeals for the Third Circuit reversed the order of the District of New Jersey dismissing, on preemption grounds, a complaint against Verizon Wireless. The district court had held that plaintiffs’ state law claims are preempted by the Federal Arbitration Act (FAA), and that the parties are therefore obligated to follow the arbitration provision in the wireless carrier’s customer agreement. Following its recent decision in Homa v. American Express Co., 558 F.3d 225 (3d Cir. 2009), the Third Circuit held that the state law claims are not incompatible with the FAA, and therefore they should have survived Verizon Wireless’s preemption argument. Litman v. Cellco Partnership, Case No. 08-4103 (3d Cir.).