Justia U.S. 9th Circuit Court of Appeals Opinion Summaries

Plaintiffs appealed from the district court's dismissal of their complaint against government officials and a group of telecommunications companies. Plaintiffs challenged section 802 of the Foreign Intelligence Surveillance Act (FISA), 50 U.S.C. 1885a, as an unconstitutional taking under the Fifth Amendment. Section 802 allowed the U.S. Attorney General to certify that a telecommunications company provided assistance at the behest of the government in connection with investigation of terrorism, thereby triggering immunity on the theory that application of section 802 required dismissal of plaintiffs' case and negated the cause of action under various federal statutes. The court held that the district court correctly dismissed plaintiffs' complaint for lack of jurisdiction where plaintiffs demanded no monetary damages. Consequently, the court need not reach the merits of the Takings Clause claim.

These consolidated appeals arose from claims that major telecommunications carriers assisted the government with intelligence gathering following the terrorist attacks on September 11, 2001. Plaintiffs challenged the legality of the telecommunications companies' participation in the surveillance program. At issue was the constitutionality of section 802 of the Foreign Intelligence Surveillance Act (FISA), 50 U.S.C. 1885a, which allowed for immunity for the telecommunications companies. The court concluded that the statute was constitutional and did not violate Articles I and III of the Constitution or the Due Process Clause of the Fifth Amendment. Accordingly, the district court's grant of the government's motion to dismiss was affirmed as to the challenged section 802 claims.

This action stemmed from the Federal Communications Commission's ("FCC") "ISP Remand Order", which imposed a new compensation regime for ISP-bound traffic, i.e., internet service provider-bound traffic. Plaintiff, which was a competitive local exchange carrier ("CLEC"), maintained that the ISP Remand Order applied when the carrier originating the call and the carrier terminating the call were both CLECs. Defendant and the California Public Utilities Commission ("CPUC") contended that the ISP Remand Order's compensation regime applied only to traffic between a CLEC and an incumbent local exchange carrier ("ILEC"). CPUC agreed with defendant's limited reading of the reach of the compensation regime, finding it inapplicable to the ISP-bound traffic originating with plaintiff and terminated by defendant, and so it assessed against plaintiff charges consistent with defendant's state-filed tariff. Plaintiff then sued defendant and the CPUC in federal district court, alleging that the ISP Remand Order preempted their attempts to assess plaintiff charges for ISP-bound traffic based on state-filed tariffs. The district court granted summary judgment to defendant and CPUC, agreeing with their argument that the ISP Remand Order did not apply to CLEC-CLEC traffic. The court agreed with plaintiff and with the analysis contained in an amicus brief filed upon its request by the FCC, that the ISP Remand Order's compensation regime applied to ISP-bound traffic exchanged between two CLECs. Accordingly, the court reversed the judgment.

Plaintiffs, a putative class of retail cable and satellite television subscribers, brought suit against television programmers and distributors alleging that programmers' practice of selling multi-channel cable packages violated Section 1 of the Sherman Act, 15 U.S.C. 1. At issue was whether the district court properly granted programmers' and distributors' motion to dismiss plaintiffs' third amended complaint with prejudice because plaintiffs failed to allege any cognizable injury to competition. The court held that the complaint's allegations of reduced choice increased prices addressed only the element of antitrust injury, but not whether plaintiffs have satisfied the pleading standard for an actual violation. Therefore, absent any allegations of an injury to competition, the court held that the district court properly dismissed the complaint for failure to state a claim.

U.S. South Communications, Inc. ("U.S.South"), an issuer of prepaid calling cards, appealed from the judgment entered against it and in favor of GCB Communications, Inc. and Lake Country Communications, Inc. (collectively "GCB"), a payphone service provider ("PSP"), where the district court held that U.S. South owed GCB dial-around compensation for disputed calls "regardless of whether the proper Flex-ANI digits were transmitted." After addressing threshold issues, the court determined that the issue was whether U.S. South was required to pay GCB for completed coinless payphone calls, dial-around calls, if U.S. South did not receive coding digits that would identify the calls as GCB payphone calls. The court concluded that GCB, through its local exchange carrier ("LEC"), must assure that the Flex-ANI was transmitted in the system. Therefore, because the district court did not make findings on this issue because it did not deem it relevant, the question of whether the Flex-ANI codes for the disputed calls were sent into the system by GCB and its LEC must be decided. Accordingly, the court vacated the judgment and remanded for further proceedings.