Justia Communications Law Opinion Summaries

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In February 2010, AMS sent a fax advertisement to 11,422 different numbers from a recently acquired customer list. PHI filed a putative class action suit asserting that those faxes violated the Telephone Consumer Protection Act of 1991 (TCPA), 47 U.S.C. 227. The district court subsequently certified the proposed class, granted PHI’s motion for summary judgment on liability against AMS and its CEO, entered a nearly $6 million judgment, and approved a distribution plan for that judgment. The Seventh Circuit affirmed. AMS conceded that the fax in question was an advertisement that lacked any kind of disclaimer explaining how to opt-out of future faxes. AMS did not meet its burden of proving that it had prior express invitation or permission to send faxes; even if the company from which it obtained the customer list had express permission to send faxes, that permission is not transferrable under the TCPA. View "Physicians Healthsource, Inc. v. A-S Medication Solutions, LLC" on Justia Law

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Viamedia sued Comcast under the Sherman Act, 15 U.S.C. 2, for using its monopoly power in one service market (Interconnect) to exclude competition and gain monopoly power in another service market (advertising representation) in the Chicago, Detroit, and Hartford geographic markets. Interconnect services are cooperative selling arrangements for advertising through an “Interconnect” that enables retail cable television service providers to sell advertising targeted efficiently at regional audiences. Advertising representation services assist those providers with the sale and delivery of national, regional, and local advertising slots. Viamedia’s evidence indicated Comcast used its monopoly power over the Interconnect to force its smaller retail cable television competitors to stop doing business with Viamedia; Viamedia’s customers for advertising representation (Comcast’s retail cable competitors) switched to Comcast because Comcast presented a choice: either start buying advertising representation services from us and regain access to the Interconnect or keep buying services from Viamedia and stay cut off from the Interconnect they needed to compete effectively. The strategy cost Comcast millions of dollars in the short run but eventually gave it monopoly power in these local markets for advertising representation services. The Seventh Circuit reversed the dismissal of Viamedia’s case. Giving Viamedia the benefit of its allegations and evidence, this is not a case in which Section 2 is being misused to protect weaker competitors rather than competition more generally. Viamedia has also adequately stated a claim that Comcast has unlawfully refused to deal with Viamedia and any cable competitor that bought advertising representation from Viamedia. View "Viamedia, Inc. v. Comcast Corp." on Justia Law

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NTCH challenged the Commission's three spectrum-management decisions: first, the Commission "modified" Dish Network's license in the AWS-4 Band to authorize the company to develop a stand-alone terrestrial network that could support wireless broadband services; second, the Commission "waived," a year later, certain technical restrictions on these modified licenses, though it conditioned the waivers on Dish Network's commitment to bid a certain sum of money in a public auction for adjacent spectrum in the so-called "H Block;" and third, the Commission designed and conducted "Auction 96," in which Dish Network bid as promised and won the H Block licenses. The DC Circuit denied NTCH's petitions for review of the district court's orders modifying Dish Network's AWS-4 licenses and establishing Auction 96’s procedures. Applying a deferential standard of review, the court held that the Commission's decision to authorize standalone terrestrial services in the AWS-4 Band sought to encourage "innovative methods of exploiting the spectrum," to address the "urgent need" for wireless broadband. Furthermore, the Commission chose to modify Dish Network's licenses largely because of the "technical judgment," that same-band, separate-operator sharing of the spectrum would be impractical. The court held that the Commission's decision was logical and that the Commission's failure to consider an alternative was not unreasonable. The court rejected NTCH's remaining contentions that the Commission's decision exceeded its authority under section 316 of the Communications Act. In regard to the Auction 96 procedures, the court held that NTCH failed to show that the Commission's decision was arbitrary and capricious. However, the court held that the Commission wrongly dismissed NTCH's challenges to the waiver orders for lack of administrative standing, and thus remanded for the Commission to consider those claims on the merits. View "NTCH, Inc. v. FCC" on Justia Law

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The Telephone Consumer Protection Act bars certain uses of an “automatic telephone dialing system,” which it defines as equipment with the capacity “to store or produce telephone numbers to be called, using a random or sequential number generator,” as well as the capacity to dial those numbers AT&T’s “Customer Rules Feedback Tool,” a device that sends surveys to customers who have interacted with AT&T’s customer service department, exclusively dials numbers stored in a customer database. AT&T sent unwanted automated text messages to Gadelhak. Gadelhak brought a putative class action under the Act, 47 U.S.C. 227(b)(1). The district court held and the Seventh Circuit affirmed that AT&T’s system did not qualify as an “automatic telephone dialing system.” While characterizing the Act as a grammatical nightmare, the court concluded that the phrase “using a random or sequential number generator” modifies both “store” and “produce.” AT&T’s system neither stores nor produces numbers using a random or sequential number generator. View "Gadelhak v. AT&T Services, Inc." on Justia Law

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Officers executed a search warrant at Rawls’ residence, yielding an iPhone 6 and a Mac Pro Computer with attached external hard drives, all protected with encryption software. With a warrant, forensic analysts discovered the password to decrypt the Mac Pro but could not determine the passwords for the external hard drives. The Mac Pro revealed an image of a pubescent girl in a sexually provocative position, logs showing that it had visited likely child exploitation websites and that Rawls had downloaded thousands of files known to be child pornography. Those files were stored on the external hard drives. Rawls’ sister stated that Rawls had shown her child pornography on the external hard drives. A Magistrate ordered Rawls to unencrypt the devices. Rawls cited the Fifth Amendment privilege against self-incrimination. The court denied Rawls’ motion, reasoning the act of decrypting the devices would not be testimonial. Rawls decrypted the iPhone, which contained 20 photographs that focused on the genitals of Rawls’ six-year-old niece. Rawls stated that he could not remember the passwords for the hard drives. The Third Circuit affirmed a civil contempt finding. Rawls, incarcerated since September 2015, moved for release, arguing that 28 U.S.C. 1826(a) limits the maximum confinement for civil contempt to 18 months. The Third Circuit ordered his release, rejecting the government’s argument that Rawls was not a “witness” participating in any “proceeding before or ancillary to any court or grand jury.” The proceedings to enforce the search warrant fall within the statute’s broad description of any “proceeding before or ancillary to any court or grand jury," the Decryption Order is “an order of the court to testify or provide other information,” and section 1826(a) applies to the detention of any material witness, even if that person is also a suspect in connection with other offenses. View "United States v. Apple Mac Pro Computer" on Justia Law

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T-Mobile customers can participate in “T-Mobile Tuesdays,” a promotional service, offering free items and discounts. Customers who no longer wish to receive marketing communications may opt-out by contacting T-Mobile’s customer service. T-Mobile user Warciak received a text message: This T-Mobile Tuesday, score a free 6” Oven Roasted Chicken sub at SUBWAY, just for being w/ T-Mobile. Ltd supply. Get app for details. The message came from T-Mobile. Warciak was not charged for the text. Warciak sued Subway claiming Subway engaged in a common-law agency relationship with T-Mobile, and that Subway’s conduct violated the Telephone Consumer Protection Act (TCPA). T-Mobile is not included in the lawsuit. The court dismissed the complaint as lacking sufficient support for claims of actual and apparent authority: control over the timing, content, or recipients of the text message. The court also found that the wireless carrier exemption applied so that no underlying TCPA violation exists ( 47 U.S.C. 227(b)(2)(C)). Prior written consent is not required for calls to a wireless customer by his wireless carrier if the customer is not charged. The Seventh Circuit affirmed. The only alleged conduct by Subway is its contractual relationship with T-Mobile. Warciak’s complaint lacks sufficient facts showing Subway manifested to the public that T-Mobile was its agent. He relied on T-Mobile’s conduct. Statements by an agent are insufficient to create apparent authority without also tracing the statements to a principal’s manifestations or control. View "Warciak v. Subway Restaurants, Inc." on Justia Law

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Under Section 227 of the Telephone Consumer Protection Act, to be an auto-dialer, the equipment must (1) store telephone numbers using a random or sequential number generator and dial them or (2) produce such numbers using a random or sequential number generator and dial them. Plaintiffs filed suit alleging that the companies' unsolicited phone calls violated the Act. Plaintiffs alleged that the companies placed the calls through "Automatic Telephone Dialing Systems," which the Act regulates and restricts. The Eleventh Circuit held that because neither phone system used randomly or sequentially generated numbers and because the phone system in Plaintiff Glasser's appeal required human intervention and thus was not an auto-dialer, the Act does not cover them. Accordingly, the court affirmed the district court's judgment in Glasser's case, and affirmed in part and reversed in part the judgment in Plaintiff Evans' case. View "Glasser v. Hilton Grand Vacations Co., LLC" on Justia Law

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A man left a voicemail at former attorney general Holder's law firm, (Covington): Former U.S. Attorney General Eric Holder, I’m going to kill you. ... to murder you. My name is Atrel Howard. We had spoken in February of 2010. I was a United States unconstitutional convicted ... prisoner by the Common Pleas Court of Cuyahoga County ... through the second part of the clause of the double jeopardy law ... we had spoken. My name is Atrel Howard of Cleveland, Ohio. If you get this message you need to realize that I’m under unconstitutional law. ... I was sentenced to 50 months ... intentional assault of a federal agent or employee on the FBI agency premises. Howard was charged with the knowing and willful transmission in interstate commerce of a communication containing a threat to injure another, 18 U.S.C. 875(c). Covington’s server identified the caller as Atrel Howard, from a Cleveland, Ohio area code. An FBI agent and a probation officer were familiar with Howard’s voice. The telephone number belonged to Howard’s father. The jury instructions were jointly proposed by the parties. Convicted, Howard was sentenced to 30 months for his section 875(c) offense and his supervised release violation. The Sixth Circuit affirmed, rejecting arguments of insufficient evidence; that omitting the essential mens rea element violated Howard’s Fifth and Sixth Amendment rights and deprived the court of jurisdiction; and that the court erred in instructing the jury as to what type of communication would constitute a “true threat.” View "United States v. Howard" on Justia Law

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ABC stores its subscribers’ data on the cloud. ABC received a grand jury subpoena issued under 18 U.S.C. 2703(c)(2), ordering it to produce the non-content data of one of its subscribers, as part of a criminal investigation. The subpoena was accompanied by a nondisclosure order (NDO), prohibiting ABC from notifying any person, except its lawyers, of the existence of the subpoena for one year. Weeks later, a magistrate issued a search warrant directing ABC to produce content-specific data for the same account, with another NDO. ABC complied. The subscriber filed for bankruptcy. ABC moved to modify the NDOs to permit it to notify the bankruptcy trustee of the existence of the subpoena and warrant, arguing that the NDOs are content-based restrictions and prior restraints that infringe upon its First Amendment rights. ABC asserted the bankruptcy trustee had a duty to uncover and assert causes of action against the debtor’s officers and directors. The district court found that 18 U.S.C. 2705(b) implicates the First Amendment rights of service providers and that such an NDO passes strict scrutiny. The Third Circuit affirmed the denial of ABC’s motion to amend the NDOs. The governmental interest in maintaining grand jury secrecy is sufficiently strong for the NDOs to withstand strict scrutiny; the restriction is the least restrictive means of serving that interest and is narrowly tailored, being limited to one year. View "In The Matter of the Application of Subpoena 2018R00776" on Justia Law

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The Supreme Judicial Court held that the newspaper in this defamation case was not liable for republishing public police logs and requests for assistance received from a police department because the fair report privilege shielded the newspaper's editor from liability. The University of Massachusetts Boston police department received a report that an unknown man was engaging in suspicious activity near campus, and the police included an account of this report in their blotter, a daily public policy log. The news editor of the school newspaper republished the blotter entry, a version of the report, and a photograph of Plaintiff. Plaintiff was subsequently identified as the unknown man. Plaintiff bright this action against university employees and the editor, alleging that they spread false reports about him. The trial judge granted summary judgment for the defendants. The Supreme Judicial Court affirmed, holding that the report and photograph fell under the fair report privilege. View "Butcher v. University of Massachusetts" on Justia Law