"As indicated in our pleadings, the SBTC believes the FTC, in bringing a case against DOTAuthority alleging violation of the FTC Act, has therefore violated the FTC Act itself," said James Lamb, SBTC President.
WASHINGTON (PRWEB) October 13, 2017
The Small Business in Transportation Coalition ("SBTC"), a motor carrier industry non-profit 501(c)(6) trade group representing more than 8,000 independent truckers, motor carriers, freight brokers, shippers and industry suppliers, filed a motion in Federal Court yesterday to intervene by right in the Federal Trade Commission ("FTC") v. DOTAuthority.com, Inc. ("DOTAuthority") et al case (0:16-cv-62186-WJZ Federal Trade Commission v. DOTAuthority.com, Inc. et al ,William J. Zloch, presiding; United States District Court, Southern District of Florida) for the purpose of bringing a motion to dismiss, the trade group's president, James Lamb, announced today.
According to the motion filed with the court, SBTC asserts a right to intervene as a party to the suit because the FTC has taken the position that a preliminary injunction put in place by a Federal Judge in September 2016 in the DOTAuthority case also applies to the SBTC with respect to its membership auto-renewal program. FTC's position is based on the premise that because the injunction applies to James Lamb as both an individual Defendant and owner of two Corporate Defendants in the underlying case and Lamb is also the president of the SBTC, the preliminary injunction applies to SBTC even though SBTC is not a formal party to the suit. SBTC argues FTC has thereby "opened the door" to intervention.
The motion states that SBTC wishes to intervene to dispose of the case insofar as the interests of the trade group are concerned, filing along with it, a proposed motion to dismiss on the basis that DOTAuthority is a "common carrier" as defined in case law and the FTC has no jurisdiction over common carriers. SBTC on behalf of Industry is therefore teaming up with its member industry suppliers to set a precedent that government must be held accountable for compliance with the law just as it expects Industry to comply with the law, Lamb said.
Specifically, SBTC argues in the motion that pursuant to 15 USC 45(a)(2) common carriers are exempt from the jurisdiction of the FTC. The language pertaining to common carriers in section 45(a)(2) is known as the “Common Carrier Exemption”. SBTC is therefore alleging that the FTC has violated the FTC Act in that FTC did not have lawful authority to investigate and bring charges against DOTAuthority and its partners in the first place. SBTC argues that FTC either knew or should have known in September 2016 that DOTAuthority was a common carrier and that it enjoyed common carrier status under an August 2016 appellate decision in the AT&T Mobility case. A corporation that has the status of a common carrier is exempt from all FTC regulation and enforcement, including but not limited to FTC lawsuits under the FTC Act alleging that service providers engaged in unfair or deceptive acts or practices. FTC v. AT&T Mobility LLC, 835 F3d 993 (9th Circ. 2016), reconsideration granted en banc, ___F3d___, 2017 WL 1856836 (9th Cir, 5/9/17).
"As indicated in our pleadings, the SBTC believes the FTC, in bringing a case against DOTAuthority alleging violation of the FTC Act, has, therefore violated the FTC Act itself," said James Lamb, SBTC President. "Either SBTC is a party to the suit or it is not. But the FTC cannot have its cake and eat it too. We are therefore formally asserting a right to defend SBTC against what we allege is the FTC's unlawful intrusion into the affairs of an industry trade group, which is primarily made up of common carriers," Lamb said.
According to court records, DOTAuthority and its affiliate partner companies were initially the subject of a temporary restraining order issued by the Court at the ex-parte request of FTC in September of 2016, which placed the business in receivership and froze the Defendants' assets without an opportunity to be heard. According to the preliminary injunction issued by the court, this was reversed after Lamb testified before the Federal Judge 10 days later.
DOTAuthority has been engaged in the discovery phase of the case and has been preparing for trial over the past year seeking to defeat the FTC's charges on the merits of the case, but welcomes the intervention as a means to immediately stop the FTC action, Lamb said.