• On October 28, 2010, the US Court of Appeals for the Ninth Circuit affirmed a California federal district court’s affirmation of the California Public Utility Commission’s grant of summary judgment to Cox California in its intercarrier-compensation dispute with Global NAPs California (Global). In April 2008, Cox brought an action against Global at the California PUC alleging that Global had failed to pay Cox for its termination of Global’s VoIP-originated intraLATA toll traffic. Cox claimed that such payments were due under the terms of the parties’ 2003 interconnection agreement (ICA). Global resisted payment on the ground that the traffic at issue “arises from an enhanced services provider” and is therefore “subject to an exemption” from access charges under federal law. The California PUC rejected that argument, finding instead that the parties’ ICA required payment for all intraLATA toll traffic. Based on Global’s concession that the VoIP traffic was intraLATA toll traffic, the Ninth Circuit affirmed the PUC’s interpretation of the parties’ ICA. The Ninth Circuit also rejected the argument that the payment clause violates federal law insofar as it abridged the access-charge exemption for VoIP traffic, reasoning that an ICA is a creature of section 251(b)(5) of the Communications Act, and thus is an appropriate basis for establishing payment obligations for termination of VoIP traffic. Global NAPs California, Inc. v. California Pub. Utils. Comm’n, No. 09-55600 (9th Cir.).
  • On October 22, 2010, the US Court of Appeals for the Third Circuit Court agreed with the federal district court for the Eastern District of Pennsylvania that federal law preempts, and thus required the dismissal of, a putative class action against wireless carriers and wireless handset manufacturers alleging, among other things, that the defendants should have provided and must provide headsets with all mobile phones and that the defendants conspired to suppress knowledge of the adverse health effects from their phones’ radio frequency (RF) emissions. The plaintiff’s claims were based in state law – such as breach of warranty and conspiracy – but the Third Circuit concluded that the “FCC is in a better position to monitor and assess the science behind RF radiation than juries in individual cases,” and therefore dismissed the suit. The plaintiff argued that he is not seeking to regulate the frequency itself, but rather only to require the manufacturers and carriers to provide the headsets. But the appeals court credited the defendants’ arguments that state juries are limited to awarding only that remedy, and that potentially conflicting state judgments could yield a patchwork system of laws that would collide with the Communications Act’s grant of authority over these issues to the FCC. Farina v. Nokia Inc., No. 08-4034 (3rd Cir.).