WASHINGTON-The Judicial Panel on Multidistrict Litigation has consolidated two challenges to the Federal Communications Commission’s recent truth-in-billing decision in the 11th U.S. Circuit Court of Appeals in Atlanta.
The FCC in March extended truth-in-billing to wireless carriers, but rejected a consumer group’s request to ban line-item regulatory recovery fees charged by mobile-phone carriers to offset the cost of implementing federal mandates such as local number portability, enhanced 911 and universal service fund contributions. The FCC also pre-empted state regulation of line-item charges.
The FCC ruling angered consumer groups. Mobile-phone operators, for their part, had opposed truth-in-billing regulation-which previously applied to only landline phone companies-but wireless carriers did not appeal the FCC action.
The National Association of State Utility Consumer Advocates-which had petitioned the FCC to declare that line items other than taxes or charges levied by state, local and federal agencies are banned-did. NASUCA filed an appeal in the 11th Circuit in Atlanta late last month.
The Vermont Public Service Board also decided to contest the FCC’s truth-in-billing order, but did so at the 2nd U.S. Circuit Court of Appeals in New York.
The FCC notified the federal judicial panel about the appeals in the two federal circuit courts. The panel subsequently combined the appeals.
However, the appeals appear to have run into trouble already.
The 11th Circuit last week said it may lack jurisdiction over the NASUCA appeal. The question at issue is whether the court can act on the NASUCA challenge in view of the fact that the FCC issued a further notice of proposed rulemaking at the time it decided other truth-in-billing issues at the agency’s March 10 open meeting.
Specifically, the FCC is seeking comment on tentative conclusions that non-tax line items-such as fees levied by cell-phone companies for E911, local number portability and USF-must be located in a section of the bill separate from government-imposed charges; that carriers must disclose to consumers the full rate-including any non-mandated line items as well as an estimate of government-imposed surcharges, at the point of sale; and that state truth-in-billing regulations that are inconsistent with federal guidelines are pre-empted.
The 11th Circuit gave parties 14 days to respond to the jurisdictional question.
“If it is determined that this court is without jurisdiction, this appeal will be dismissed,” the 11th Circuit stated.
Wireless billing has proven fertile ground for class-action lawsuits and state scrutiny in recent years.
