T-Mobile’s Fake Ring Tone Conduct Might Still Be ‘Secret’ if Not for FCC: Plaintiffs
T-Mobile’s May 4 brief on discovery documents it designated as confidential under the protective order in the fake ring tones class action brought by plaintiffs Craigville Telephone and Consolidated Telephone “fails to show that its confidentiality designations are valid,” said the plaintiffs’ response Tuesday (docket 1:19-cv-07190) in U.S. District Court for Northern Illinois in Chicago.
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T-Mobile is alleged to have inserted the fake ring tones instead of connecting calls to rural areas in the U.S. that have expensive routing fees. The fake tone made the caller think the recipient didn’t answer, but the call wasn't delivered. T-Mobile agreed in a 2018 consent decree to pay $40 million to resolve an FCC investigation into whether it used the fake ring tones, and the plaintiffs argue that some of the documents associated with that investigation are among the materials T-Mobile wants kept under seal.
T-Mobile’s May 4 brief gives “no specific factual or legal basis” for any of its confidentiality designations, said the plaintiffs’ response. T-Mobile’s rationale for its designations omits any particular and specific demonstration of fact, as distinguished from stereotyped and conclusory statements, it said, citing the 1981 Supreme Court decision in Gulf Oil v. Bernard.
T-Mobile spends the first two pages of its brief criticizing how the plaintiffs raised the confidentiality issue “rather than addressing the merits,” said the plaintiffs’ response. In so doing, T-Mobile “merely seeks to avert” the attention of the court and the public “as to who the wrongdoer is in this litigation,” it said. “Were it not for the public proceedings of the FCC,” T-Mobile’s “illegal manipulation of wireless telecommunications nationwide might still be a secret,” it said.
The 2018 consent decree at the FCC publicly revealed T-Mobile’s “illegal conduct that impacted rural call completion throughout the United States” and forced the carrier “to publicly admit to its illegal conduct and pay one of the largest rural call completion fines ever,” said the plaintiffs’ response. T-Mobile now “wants to keep its historic documents that show its wrongful conduct secret, but it has failed to meet its burden to do so,” it said.
T-Mobile “feigns the high ground” by volunteering a “de-designation” of a massive number of documents from confidentiality, said the plaintiffs’ response. “Yet these designations were to have originally been made only after adequate due diligence” and in compliance with the court’s agreed confidentiality order’s “certification that its documents were confidential at the time of the designation,” it said.
Of the 55 documents filed under seal solely due to T-Mobile’s designations, T-Mobile is now de-designating 39 of those documents, said the plaintiffs’ response. “Simply put, the massive de-designation” by T-Mobile “is an admission of its lack of care and diligence exhibited before the documents were even marked for production,” it said.