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The federal Ninth Circuit Court of Appeals has affirmed the dismissal from federal district court of a purported consumer’s class action based on “slamming” claims under federal and state law, that is, that her existing telephone service was canceled and replaced by the new provider’s Voice over Internet Protocol (VoIP) service without her consent.  The Ninth Circuit found that the Federal Communications Commission (FCC) has Congressionally delegated authority to define “slamming” violations, and it also has pending rulemakings to determine the appropriate regulatory treatment of VoIP, therefore trial courts have latitude to defer to the FCC’s “primary jurisdiction”.  The court also found that plaintiff’s additional and subsidiary claims, including for violation of a state anti-slamming law (Public Utilities Code Section 2889.5, describing steps for customer change authorization for competitive telephone services) were either unsupported, or waived on appeal.  (K. Clark v. Time Warner Cable, 9th Cir. No. 07-55794, reported May 1, 2008) 

Meanwhile, in a separate case, the FCC recently issued declaratory guidance on a consumer class action pending in Florida.  The FCC declined to rule on the legality of “forced coupling” of mandatory long distance service with a local service phone line, although ultimately the legality may be questionable.  However, the FCC did find that certain long distance-related line charges could be billed if consistent with the carrier’s tariff, whether or not the customer chose to obtain long distance service.  Finally, the FCC ruled that to the extent the complained-of charges were associated with common carrier services and consistent with a filed tariff, any state law claims, whether based in contract or tort, such as unfair practices claims, are completely preempted by federal law.  (Order, Thorpe v. GTE, FCC 08-113, released April 11, 2008)

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