• On April 6, 2010, the United States Court of Appeals for the District of Columbia Circuit granted a petition for review filed by Comcast Corporation by vacating the FCC’s 2008 order finding Comcast liable for its management of peer-to-peer networking on its cable modem service. The FCC argued that congressional policy itself requires the FCC to exercise authority over otherwise unregulated services in order to prevent the frustration of a regulatory scheme expressly authorized by statute. The FCC relied principally on sections 230(b) and 151 of the Act to support its action; it also later sought to invoke section 201 of the Act, but the court held that the FCC had forfeited any claim to jurisdictional authority under section 201 by not invoking it timely. The DC Circuit also agreed with Comcast that neither section 230 nor section 151 supports the Commission’s action, holding that “[p]olicy statements are just that — statements of policy. They are not delegations of regulatory authority.” The court found that if the FCC’s interpretation was accepted, “it would virtually free the Commission from its congressional tether” and give it unbounded regulatory power. D.C. Cir. Case No. 08-1291.
  • On March 31, 2010, the United States District Court for the Southern District of New York denied a motion for class certification by the putative lead plaintiff in her action against Verizon Business Global, Inc. f/k/a MCI, Inc., in which she alleged that MCI engaged in an “aggressive billing initiative” by activating accounts for several hundred thousand consumers in its “Basic Dial 1” default billing plan under which MCI would allegedly charge minimum usage fees or monthly recurring charges even when the customers did not use MCI to make 1+ long distance calls. The court found that the plaintiff is not a proper class representative because she was neither enrolled in MCI's Basic Dial 1 service nor charged Basic Dial 1 fees. After making that determination, the court noted, “It is telling that although Bentley contends that there are some 380,923 potential members of the proposed class, not one proper class representative has come forward to represent the class.” S.D.N.Y Case No. 07 Civ. 9590 (DC).