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Tuesday, October 17, 2006



Denial of cert. in Hatch v. Cellco Partnership leaves standing a rather egregious 8th Circuit decision - considerably more damaging to consumer interests than the synopsis above indicates. The 8th Circuit preempted Minnesota's consumer protection law (accurately summarized in the above post) by reference to 47 USC 332 c3a - which preempts rate regulation and expressly reserves state regulatory authority over "other terms and conditions of service" - like notice obligations or contract terms or requirements to obtain consent... The 8th circuit opinion really had to contort the words of the statute to reach a conclusion directly opposite its plain language. This may sound like harsh criticism of a federal Court of Appeals, but becomes reasonable upon a read of the actual language of the statute:

This particular issue (should states have any role in consumer protection in the telecom industry?) isn't academic right now, either. Provisions in the current telecom reform bill stalled in the Senate would expand preemption from "rates only" to the almost complete preemption the wireless carriers desire. Clearly this Congress wouldn't be attempting to expand the preemption if they thought that's what the original law intended.

Interestingly, state attorneys general are creating much of the resistance to the pending legislation - precisely because they don't want the expanded preemption language. (See for coverage.) Unfortunately, the net result of these legislative and court maneuverings is preemption either way. If the legislation passes with preemption language, wireless carriers can cite the new legislation - and preemption prevails. Even if legilstion remains stalled, wireless carriers can cite the 8th circuit's tortured opinion - and preemption prevails.

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