• On October 3, 2011, the U.S. District Court for the Western District of Kentucky granted summary judgment to a class of plaintiffs who sued Windstream Kentucky East LLC for violating the Communications Act by charging customers a “gross receipts surcharge” at a rate higher than the tariffed surcharge. The Court held that it was unlawful for Windstream to exceed its tariff, and noted that Windstream’s stated need to pass through tax increases via this surcharge “does not excuse compliance with Section 203 [of the Communications Act] and the Filed Tariff Doctrine.” The court will now move to the damages phase, where Windstream must produce evidence of the payments it improperly collected. Bowers v. Windstream Ky. East LLC, No. 3:09-cv-440 (W.D. Ky.).
  • On October 3, 2011, the United States Supreme Court refused to grant a writ of certiorari to review a ruling that the Communications Act and the FCC’s regulations preempt civil claims alleging injury from cellphone RF emissions. Both the Eastern District of Pennsylvania and the U.S. Court of Appeals for the Third Circuit held that such state law claims are preempted by federal RF rules for mobile devices. Farina v. Nokia, Inc., No. 10-1064.