The United States Court of Appeals denied plaintiff's motion to dismiss his claims under the FTC Act and asserted the following question of law: Whether the Federal Trade Commission has authority to regulate the telephone services offered by “wireless carriers” in the area covered by the FTC Act. For the reasons expressed herein, the Court finds that the FTC Act, including section 5, preempts any state law or regulation that applies to the activities covered by the FTC Act. In light of this conclusion, the Court rejects plaintiff's motion to dismiss. The record reflects that the Commissioner issued an advisory opinion that “[m]any aspects of the practices of telecommunication carriers” including “the provision of 'telephone services' for an indefinite time,” are covered by the FTC Act. For example, AT&T's policy for its customers to “reject and avoid all telemarketing calls” with certain prerequisites (“Preemption Provisions”) also covered by the FTC Act, and because the Preemption Provisions cover all AT&T services, only AT&T's wireless services are covered by the Act's prohibitions. While the agency does not rule a policy alone a legal policy for purposes of the statute, the agency finds that the Preemption Provisions “are sufficiently linked and in scope to AT&T's practices that they make it impossible for AT&T to avoid the reach of the Act[.]” The agency's conclusion, in general, is that a policy of a telecommunications' carrier can be covered by the FTC Act because of multiple factors, including the scope of the carrier's practice, the scope or effectiveness of regulatory action, and the extent to which the carrier's practice has an impact on consumers beyond the scope of the carrier's activity. This case is the latest example of a telecommunications' carrier facing a federal inquiry. In October 2003, the FTC brought a complaint against AT&T alleging telemarketing practices that violated sections 5 and 7 of the FTC Act. In a subsequent lawsuit, the agency claimed, without success, that AT&T's practice of “rejecting and avoiding all telemarketing calls” with prerequisites (“Preemption Provisions”) also violated section 5 of the FTC Act.
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United States Department of Labor Employees Compensation Appeals Board EVERETT M. JOHNSON, Appellant and U.S. POSTAL SERVICE, POSTAL INSPECTION SERVICE, Ball Crowd, PA, Employer))))))))) Appearances:
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