Justia Communications Law Opinion Summaries

Heyer, a Deaf individual who communicates in ASL, is civilly committed as a sexually dangerous person. In prison and while civilly committed, Heyer’s access to the Deaf community has dwindled. Detainees in Heyer’s Unit can communicate with the outside by writing letters, in-person visits, the prison email system, and a TTY machine for making calls under the supervision of a Bureau of Prisons (BOP) staff member to preapproved numbers. BOP also installed a videophone in Heyer's unit and contracted with a provider of SecureVRS services for calls to preapproved numbers, with monitoring. SecureVRS calls do not allow Heyer to call Deaf friends. All of the available means of communication are problematic because Heyer’s English skills are “novice low. ”An expert concluded that his reading and writing skills mimic those of a seven-year-old.The district court held that the BOP’s refusal to allow Heyer to make point-to-point calls with other Deaf individuals did not violate his First Amendment rights. The Fourth Circuit reversed. Heyer’s constitutional rights are not defined merely by his civil detainee status or his past conduct. They are also defined by his status as a Deaf individual cut off from his community in a manner more complete than even foreign language prisoners. The district court erred by crediting BOP testimony about the risks of point-to-point calls without considering testimony about safety features that have managed those risks for other forms of communication it makes available. View "Heyer v. United States Bureau of Prisons" on Justia Law

Defendant Edward Siegel was an unsuccessful candidate for the Solana Beach City Council in 2016. During and after the City Council campaign, Siegel’s campaign manager, defendant Brian Hall, sent a letter to the editor, distributed e-mails to local government and media, and posted Facebook messages about City Council members Lesa Heebner and Mike Nichols, and their relationship with local developer Joseph Balla (with Heebner and Nichols collectively, plaintiffs). Primarily using a fictional persona he created, “Andrew Jones,” Hall asserted or implied that Heebner and Nichols lobbied for the North County Transit District (NCTD) to select Balla for a Solana Beach train station project in exchange for Balla giving them design work on the project and directing a charitable donation to a nature conservancy they supported. Siegel and Hall also ran a campaign advertisement implying that Heebner endorsed Siegel in the City Council race using a favorable quote from a 2007 Certificate of Appreciation signed by Heebner and given to Siegel by the City for his volunteer work. Plaintiffs sued for defamation based on the publications, and Heebner claimed false light invasion of privacy based on the advertisement. Hall filed special motions to strike pursuant to Code of Civil Procedure section 425.16, the anti-SLAPP statute. Siegel agreed not to file anti-SLAPP motions in exchange for relief from default; when he tried to file notices of joinder to Hall’s motions, the trial court rejected them. The court permitted plaintiffs to conduct discovery on actual malice, and then denied the anti-SLAPP motions. Hall appealed, contending the trial court erred: (1) by denying his motions; (2) by denying Siegel’s joinder; and (3) in permitting discovery. In essence, his position was that his publications were political opinions about a conflict of interest and not actionable. To this the Court of Appeal disagreed: calculated or reckless falsehoods can still amount to defamation even in that context. The Court reached a different conclusion as to plaintiffs' false light claim, as Heebner did not show the advertisement was defamatory per se or introduce evidence of special damages. Finally, the Court of Appeal affirmed the joinder and discovery rulings. View "Balla v. Hall" on Justia Law

The Supreme Judicial Court held that certain materials requested and received by the office of the district attorney for the Suffolk district from the Federal Bureau of Investigation (FBI) related to a fatal shooting by federal and state law enforcement officials were exempt from disclosure under Mass. Gen. Laws ch. 4, 7(f).After Usaamah Rahim was killed, the district attorney opened an investigation into his death, aided by various materials provided by the FBI. Plaintiff later filed a public records request seeking documents related to Rahim's death. When the district attorney refused to provide access to the FBI materials Plaintiff sued the district attorney seeking a declaration that the FBI records were public records that must be produced under Mass. Gen. Laws ch. 66, 10. The judge granted summary judgment for the district attorney, concluding that the FBI materials were not public records. The Supreme Judicial Court held (1) the FBI materials qualified as public records under the public records law; (2) the materials were not exempt from disclosure under Mass. Gen. Laws ch. 4, 7(a) but some materials qualified for exemption under Mass. Gen. Laws ch. 4, 7(f); and (3) the remainder of the materials must be remanded to determine whether exemption (f) applies. View "Rahim v. District Attorney for the Suffolk District" on Justia Law

The Supreme Court reversed the judgment of the district court ordering the Las Vegas Metropolitan Police Department (Metro) to disclose patrol officer unit assignments from 2014 through 2016, holding that the officers had a nontrivial privacy interest in their unit assignments.Las Vegas Review-Journal submitted a Nevada Public Records Act request Metro's officers' unit assignments from 2014 through 2016. When Metro refused to disclose the unit assignments, the Review-Journal petitioned the district court for a writ of mandamus. The district court granted the petition. The Supreme Court reversed, holding (1) courts should apply the test adopted in Clark County School District v. Las Vegas Review-Journal (CCSD), 429 P.3d 313 (Nev. 2018) whenever the government asserts a nontrivial privacy interest; and (2) the district court erred in determining that Metro's officers lacked a nontrivial privacy interest in their unit assignments. View "Las Vegas Metropolitan Police Department v. Las Vegas Review-Journal" on Justia Law

The FCC’s Lifeline program offers low-income consumers discounts on telephone and broadband Internet access services. Qualified consumers receive service from eligible telecommunications carriers (ETCs), which receive a monthly federal support payment for each Lifeline subscriber. The FCC allows wireless resellers to provide Lifeline services. Many subscribers pay the ETC a recurring, discounted monthly fee. Some reseller ETCs offer prepaid wireless plans for which ETCs receive monthly Lifeline payments. ETCs must initiate the de-enrollment of Lifeline subscribers on prepaid plans who have not used their Lifeline service within the preceding 30 days; such subscribers are notified and enter a 15-day “cure period,” during which, ETCs must continue to provide Lifeline service.A group composed primarily of Lifeline service providers filed a Petition for Declaratory Ruling requesting that the FCC permit Lifeline ETCs to seek reimbursement for all Lifeline subscribers served on the first day of the month, including those receiving free-to-the-end-user Lifeline service who are in the 15-day cure period. The petition cited 47 C.F.R. 54.407(a), which states that ETCs will receive payments for each actual qualifying low-income customer the ETC serves directly as of the first of the month. The FCC denied the petition, citing section 54.407(c)(2), which states that for prepaid Lifeline plans, an ETC “shall only continue to receive [support payments] for . . . subscribers who have used the service within the last 30 days, or who have cured their nonusage.”The D.C. Circuit upheld the FCC’s determination. A statutory argument – that the FCC’s interpretation of its rules violated 47 U.S.C. 214(e) – is foreclosed because it was not raised with the FCC. The FCC position is compelled by the unambiguous terms of the rules. View "National Lifeline Association v. Federal Communications Commission" on Justia Law

In 2012, Rad and others were charged with acquiring penny stocks, “pumping” the prices of those stocks by bombarding investors with misleading spam emails, and then “dumping” their shares at a profit. Rad was convicted of conspiring to commit false header spamming and false domain name spamming under the Controlling the Assault of Non-Solicited Pornography And Marketing Act (CAN-SPAM), 15 U.S.C. 7701(a)(2), which addresses unsolicited commercial email. The PSR recommended raising Rad’s offense level to reflect the losses inflicted on investors, estimating that Rad realized about $2.9 million in “illicit gains” while acknowledging that because “countless victims” purchased stocks, the losses stemming from Rad’s conduct could not “reasonabl[y] be determined.” Rad emphasized the absence of evidence that any person lost anything. Rad was sentenced to 71 months’ imprisonment. The record is silent as to how the court analyzed the victim loss issue. The Third Circuit affirmed. DHS initiated removal proceedings under 8 U.S.C. 1227(a)(2)(A)(iii), which renders an alien removable for any crime that “involves fraud or deceit” “in which the loss to the victim or victims exceeds $10,000.” The IJ and the BIA found Rad removable.The Third Circuit remanded. Rad’s convictions for CAN-SPAM conspiracy necessarily entail deceit under 8 U.S.C. 1101(a)(43)(M)(i). The second element, requiring victim losses over $10,000, however, was not adequately addressed. The court noted that intended losses, not just actual ones, may meet the requirement. View "Rad v. Attorney General United States" on Justia Law

The First Circuit denied the petition for review filed by the Massachusetts Department of Telecommunications and Cable (MDTC) challenging the FCC's determination that the cable system operated by Charter Communications, Inc. in Massachusetts was subject to "effective competition" in its franchise areas under the statutory Local Exchange Carrier (LEC) test, Telecommunications Act of 1996, 301(b)(3)(C), 47 U.S.C. 543(1)(1)(D), holding that the FCC did not act arbitrarily and capriciously.In 2018, Charter, a cable operator, sought a determination that it faced effective competition in its franchise areas in Massachusetts and Kauai, Hawaii because the availability of DIRECTV NOW in those franchise areas constituted effective competition under the LEC test. The FCC granted Charter's petition. The First Circuit affirmed, holding that the FCC's findings were not arbitrary and that the FCC properly interpreted its regulations and acted reasonably. View "Massachusetts Department of Telecommunications & Cable v. Federal Communications Commission" on Justia Law

The DC Circuit upheld the FCC's order significantly narrowing a frequency band dedicated to fixed satellite transmissions in order to make room for the emerging fifth generation of mobile cellular technology. At issue in this case is whether this change permissibly modified the existing station licenses of three small satellite operators (SSO) and PSSI, a company that broadcasts live events through satellites. The SSOs and PSSI each filed an appeal for review of the FCC's order under 47 U.S.C. 402(b) and a petition under 47 U.S.C. 402(a).In this case, the SSOs and PSSI principally argue that the order exceeds the FCC's statutory authority to modify existing station licenses. The court concluded that, although the governing statutes by their terms speak only of licenses, the FCC gives market access grants the same protection that it gives to full Commission licenses. The court rejected the SSO's claims that the change to their market access grants was too fundamental to qualify as a modification under section 316(a)(1) of the Communications Act of 1934; that the FCC arbitrarily restricted their future business opportunities and excluded them from receiving compensation from the future 5G providers; and that the FCC impermissibly sanctioned them without prior notice. The court also rejected PSSI's claim that its licenses to transmit within the C-band uplink have been fundamentally changed. Rather, substantial evidence supported the FCC's conclusion that earth stations—including PSSI's mobile ones—will be able to "provide the same services" to their customers after the license modification. Finally, the court concluded that the parties' remaining challenges to the order lack merit. View "PSSI Global Services, LLC v. Federal Communications Commission" on Justia Law

Plaintiff filed suit alleging that PDR Network violated the Telephone Consumer Protection Act (TCPA) by sending unsolicited advertisements by fax. The district court held that the Hobbs Act did not require it to adopt the FCC's interpretation of the TCPA (the 2006 FCC Rule) because the Hobbs Act does not control when no party "has challenged the validity of the FCC's interpretation of the TCPA." The district court concluded that, under the TCPA, unsolicited fax advertisements are not actionable unless they have a commercial purpose. The district court then determined that PDR Network's fax was not commercial in nature and dismissed the complaint without granting leave to amend.Plaintiff appealed and the Fourth Circuit held that the district court erred in conducting a Chevron analysis, and interpreted the 2006 FCC Rule to mean that a fax offering free goods and services qualifies as an "advertisement" under the TCPA, regardless of whether it has an underlying commercial purpose. PDR Network petitioned for certiorari and the Supreme Court granted review. The Supreme Court determined that to the extent to which the 2006 FCC Rule binds the lower courts may depend on the resolution of two preliminary sets of questions that were not aired before the Court of Appeals.On remand from the Supreme Court, the Fourth Circuit resolved the first five of seven issues submitted to the parties by concluding that a remand to the district court for discovery was not necessary; the relevant portions of the 2006 FCC Rule are interpretive rather than legislative; and thus the third, fourth, and fifth issues are moot. In regard to the sixth issue regarding what level of deference (if any) must the district court afford the 2006 FCC Rule, the court declined to decide in the first instance and remanded for the district court to have the first opportunity to perform the applicable analysis. Given the court's remand to the district court to consider what level of deference the court should afford the 2006 FCC Rule and what the proper meaning of "unsolicited advertisement" is in light of that deference, the court found it unnecessary to resolve the issue of whether the district court erred by failing to grant leave to amend. View "Carlton & Harris Chiropractic, Inc. v. PDR Network, LLC" on Justia Law

When a Google employee views a digital file and confirms that it is child pornography, Google assigns the file a hash value (digital fingerprint). It then scans Gmail for files with the same value. Google learned that a Gmail account had uploaded files with hash values matching child pornography and sent a report to the National Center for Missing and Exploited Children (NCMEC). NCMEC’s systems traced the IP address to Kentucky. A local detective connected Miller to the Gmail account.The Sixth Circuit affirmed Miller’s convictions. The Fourth Amendment restricts government, not private, action. A private party who searches a physical space and hands over paper files to the government has not violated the Fourth Amendment. Rejecting Miller’s argument that the detective conducted an “unreasonable search” when he later opened and viewed the files sent by Google, the court reasoned that the government does not conduct a Fourth Amendment search when there is a “virtual certainty” that its search will disclose nothing more than what a private party’s earlier search revealed. A hash-value match has near-perfect accuracy, creating a “virtual certainty” that the files in the Gmail account were the known child-pornography files that a Google employee had viewed. The admission of NCMEC’s report at trial did not violate Miller’s Sixth Amendment right to confront “witnesses.” The rule applies to statements by people. NCMEC’s automated systems, not a person, entered the information into the report. View "United States v. Miller" on Justia Law