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The Ninth Circuit reversed the district court's dismissal of the complaint for failure to state a claim under the Telephone Consumer Protection Act. Plaintiff alleged that Facebook used automated telephone dialing systems (ATDS) to alert users, as a security precaution, when their account was accessed from an unrecognized device or browser. However, plaintiff was not a Facebook customer and his repeated attempts to terminate the alerts were unsuccessful. The panel held that plaintiff's allegations under the Act were sufficient to withstand Facebook's motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). In this case, the messages plaintiff received were automated, unsolicited, and unwanted. As to the constitutional issue, the panel joined the Fourth Circuit and held that a 2015 amendment to the Act, excepting calls "made solely to collect a debt owed to or guaranteed by the United States," was content-based and incompatible with the First Amendment. The panel severed the newly appended "debt-collection exception" as an unconstitutional restriction on speech. Therefore, the panel remanded for further proceedings. View "Duguid v. Facebook, Inc." on Justia Law

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Plaintiffs, 14 locksmith companies, filed suit alleging that Google, Microsoft, and Yahoo! have conspired to "flood the market" of online search results with information about so-called "scam" locksmiths, in order to extract additional advertising revenue. The DC Circuit affirmed the district court's dismissal of the amended complaint as barred by section 230 of the Communications Decency Act, which states that no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider. The parties agreed as to the first and third prongs of the section 230 test for determining whether the Act mandates dismissal, holding that defendants were a provider or user of an interactive computer service and that the complaint sought to hold defendants liable as the publisher or speaker of that information. As to the contested second prong of the section 230 test, the court held that the information for which plaintiff seeks to hold defendants liable was information provided by another information content provider and thus dismissal was warranted under the Act. In this case, defendants' translation of information that comes from the scam locksmiths' webpages fell within the scope of section 230 immunity. View "Marshall's Locksmith Service v. Google, LLC" on Justia Law

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Plaintiff filed suit against Dish Network, alleging that its sales representative, Satellite Systems Network (SSN), routinely violated the Telephone Consumer Protection Act (TCPA) by calling numbers on the national Do-Not-Call registry. After the district court certified the class, the case went to trial and Dish ultimately lost. The Fourth Circuit affirmed, holding that the district court properly applied the law and prudently exercised its discretion. The court rejected Dish's challenges to class certification and held that the class certified by the district court complied with Article III's requirements; the court rejected Dish's claims of error under Federal Rule of Civil Procedure 23 and held that the TCPA supported class-wide resolution of this class; and the court rejected Dish's challenges to the jury findings and held that there was ample evidence for the district court's rationales in the record produced at trial. View "Krakauer v. Dish Network" on Justia Law

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Defendants maintain a database of healthcare providers, containing contact information, demographics, specialties, education, and related data. Defendants sell and license the database typically to healthcare, insurance, and pharmaceutical companies, who use it to update their provider directories, identify potential providers to fill gaps in their networks, and validate information when processing insurance claims. One way defendants update and verify the information in their database is to send unsolicited faxes to listed providers, requesting them to correct outdated or inaccurate information. The faxes inform the recipients that: As part of ongoing data maintenance of our Optum Provider Database product, Optum regularly contacts healthcare practitioners to verify demographic data regarding your office location(s). This outreach is independent of and not related to your participation in any Optum network.... This data is used by healthcare-related organizations to aid in claims payment, assist with provider authentication and recruiting, augment their own provider data, mitigate healthcare fraud and publish accurate provider directories....There is no cost to you to participate in this data maintenance initiative. This is not an attempt to sell you anything.” Having received such faxes, Mauthe sued under the Telephone Consumer Protection Act, 47 U.S.C. 227 (TCPA). The Third Circuit affirmed the rejection of his suit on summary judgment, finding that the faxes were not “advertisements” under the TCPA. They did not attempt to influence the purchasing decisions of any potential buyer. View "Robert W. Mauthe, M.D. P.C. v. Optum, Inc." on Justia Law

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The Supreme Court reversed in part the judgment of the court of appeals reversing the judgment of the district court affirming the conclusions of the Public Utilities Commission (PUC) that CPS Energy violated both Tex. Util. Code 54.204(c)'s uniform-charge requirement and section 54.204(b)'s prohibition of discrimination, holding that the PUC could reasonably have concluded, as it did, that CPS Energy violated the plain terms of section 54.204(b). The PUC concluded that a utility that invoices different telecommunications providers a uniform rate nevertheless violates section 54.204(b) if it fails to take timely action to ensure that all pole attachers actually pay the uniform rate it invoices. The court of appeals reversed, holding that if a telecommunications provider does not pay the rate the utility uniformly charges, any discriminatory effect is the telecommunication provider's fault, not the utility's. The Supreme Court reversed, holding that the PUC's finding that CPS Energy failed to make any serious or meaningful effort to collect from AT&T Texas was supported by substantial evidence, and the effect on Time Warner Cable was clearly discriminatory. View "Time Warner Cable Texas LLC v. CPS Energy" on Justia Law

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Under 47 U.S.C. 555a(a), local authorities and municipalities, involved in the regulation of cable television services within their boundaries, are exempted from civil money damages liability in any lawsuit for any claim arising from the regulation of cable services. The Ninth Circuit vacated the district court's grants of summary judgment for Comcast. In this case, Comcast sought money damages against a municipality, and thus the suit arose out of the regulation of cable services pursuant to section 555a(a), which barred the only relief Comcast sought. Accordingly, the panel remanded with instructions to dismiss Comcast's lawsuit. View "Comcast of Sacramento I, LLC v. Sacramento Metropolitan Cable Television Commission" on Justia Law

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The Board of Forensic Document Examiners (BFDE), a nonprofit organization, administers a certification program for forensic document examiners. The Board has certified about a dozen examiners. Vastrick, a forensic document examiner certified by another, much larger organization, the American Board of Forensic Document Examiners, published an article, Forensic Handwriting Comparison Examination in the Courtroom, in The Judges’ Journal, a peer-reviewed scholarly journal published by the ABA. Vastrick urged judges to look for experts certified by the American Board and warned judges to “be wary of other certifying bodies.” The article did not mention BFDE by name. BFDE submitted a rebuttal, but frustrated with the ABA’s suggested edits, BFDE filed suit, claiming defamation per se and invasion of privacy on behalf of its members. BFDE also asserted civil conspiracy, false advertising under the Lanham Act. The Seventh Circuit affirmed the dismissal of the suit, ruling that the article contained only constitutionally-protected, non-actionable opinion. The Journal warned readers that “[a]rticles represent the opinions of the authors alone” and “provide opposing views” for readers to consider. Vastrick highlighted the subjective nature of his article, presenting his views as suggestions, not facts. Vastrick’s assertion that the American Board “is the only certification board recognized by the broader forensic science community, law enforcement, and courts,” reflects the expression of a viewpoint and is so broad as to lack objective, verifiable meaning. View "Board of Forensic Document Examiners, Inc. v. American Bar Association" on Justia Law

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Plaintiffs filed a putative class action against AEO, alleging that unsolicited spam text messages they received were in violation of the Telephone Consumer Protection Act. After the parties agreed to settle, third party defendant Experian objected to certification, arguing that plaintiffs lacked standing under Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016). Class member Bowes objected to the settlement as unfair. The district court approved both the settlement and certified the settlement class. The Second Circuit held that plaintiffs' receipt of the unsolicited text messages, without any other injury, was sufficient to demonstrate injury-in-fact. The court held that plaintiffs were not required to demonstrate any additional harm because the nuisance and privacy invasion attendant on spam texts were the very harms with which Congress was concerned when enacting the Act. Furthermore, history confirms that causes of action to remedy such injuries were traditionally regarded as providing bases for lawsuits in English or American courts. Therefore, the court dismissed Experian's appeal. The court affirmed with respect to Bowes' appeal, because the district court acted within its discretion in approving the class settlement. View "Melito v. Experian Marketing Solutions, Inc." on Justia Law

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The Supreme Court affirmed the circuit court's dismissal of Plaintiff's complaint against Armslist, LLC, holding that because all of Plaintiff's claims for relief required Armslist to be treated as the publisher or speaker of information posted by third parties on Armslist's firearm advertising website, armslist.com, the circuit court properly dismissed Plaintiff's complaint. This tort action arose from a mass shooting in a Wisconsin spa that killed four people, including Plaintiff's motion. In her action, Plaintiff alleged that the shooter illegally purchased the firearm used in the shooting after responding to a private seller's post on armslist.com. The circuit court dismissed the complaint, concluding that the federal Communications Decency Act (CDA), 47 U.S.C. 230, barred all of Plaintiff's claims against Armslist. The court of appeals reversed, holding that the CDA does not protect a website operator from liability for its own actions in designing and operating its website. The Supreme Court reversed, holding that section 230(c)(1) prohibits claims that treat Armslist, an interactive computer service provider, as the publisher or speaker of information posted by a third party on its website, and therefore, Plaintiff's claims are barred by section 230(c)(1). View "Daniel v. Armslist, LLC" on Justia Law

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The issue before the Pennsylvania Supreme Court in this case concerned whether counties could advance common law claims seeking legal redress against telecommunications companies for alleged deficiencies in their administration of fees associated with 911 emergency communication services. The Supreme Court concluded the Legislature balanced counties’ interests against those of other co-participants enlisted under the 911 Act and provided sufficient indicia evincing its intention to centralize enforcement authority in the relevant state agency. "Although we realize that the County may have been disadvantaged by PEMA’s apparent failure to act, this unfortunate circumstance does not control the judicial construction of a legislative enactment." Thus, the Court reversed the Commonwealth Court, and reinstated the order of the court of common pleas. View "Co. of Butler v. Centurylink, et al.." on Justia Law