Solicitor General Fights High Court Review on Truth in Billing
Solicitor General Paul Clement recommended against Supreme Court review of a key appeals court decision that dealt wireless carriers a major defeat in their fight for uniform federal regulation. Clement said the 11th Circuit’s August 2006 decision (CD Aug 2/06 p1) in a truth in billing case was in error but the high court doesn’t need to step in. The court usually gives considerably weight to solicitor generals’ opinions when deciding whether to hear a case.
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Clement weighed in on a decision by the Atlanta-based court tossing out a March 2005 FCC truth in billing (TIB) order. The FCC order said state rules requiring or barring line items on mobile carrier bills are rate regulation preempted by federal law. The court said the FCC had “exceeded its authority” in preempting states from requiring or prohibiting use of line items on bills carriers send their customers.
Clement said the court nonetheless was wrong. “The court of appeals erred by not according appropriate deference to the FCC’s reasonable construction of Section 332(c)(3)(A) of the Communications Act], but its decision does not warrant further review at this time,” Clement wrote. “The Commission has a pending proceeding on whether there are other bases for the preemption of state regulations mandating or prohibiting line items in cellular telephone bills. For that reason, the decision below is not of sufficient continuing importance at present to warrant the Court’s attention.”
Clement noted that 1993 amendments to the Communications Act approved by Congress gave the FCC exclusive jurisdiction over wireless rates. “Since a line item in a wireless bill causes a carrier to disaggregate or unbundle a component of service and associate a charge with it, regulation of line items directly implicates the carrier’s rate structure,” he contended. “Thus, the Commission reasonably determined that state requirements and prohibitions on the use of line items constitute regulation of rate structures and are a form of rate regulation.”
The case pitted the FCC, supported by carriers, against NASUCA and NARUC. No case in another circuit makes a similar direct challenge to the FCC’s declaratory ruling on the issue in the truth in billing docket.
CTIA had criticized the 11th Circuit decision, saying it would create a “mishmash of inconsistent state-by-state wireless regulations.” A CTIA official said the group had no comment Friday on the latest development.
“The Solicitor General’s filing today confirms what we have been saying all along -- this is not a decision the Supreme Court needs to review,” said NARUC President Marsha Smith. “The Solicitor General made the right recommendation, but based on a flawed rationale. We continue to believe that Congressional intent was clear. Congress expressly reserves state authority to protect consumers from being misled by cell phone companies’ billing practices. We are optimistic the Supreme Court will chose not to take this case up on the merits.” NASUCA officials didn’t respond to requests for comment Friday.