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Creditsmarts operates an internet-based business that helps independent car dealers connect customers with lenders. BMW offers direct automotive financing to customers through “up2drive.” In 2012, BMW and Creditsmarts entered into agreements, under which BMW would offer up2drive loans to borrowers at participating dealerships through Creditsmarts. Creditsmarts subsequently used the services of a fax broadcaster to fax about 21,000 advertisements to dealerships. The advertisements identified BMW and stated, “UpToDrive is looking for your BUSINESS!!” A list of recipients was generated from Creditsmarts’s customer database. Neither Creditsmarts nor Westfax retained lists of recipients. Plaintiff received a fax and alleges that it had no preexisting business relationship with Creditsmarts or BMW and that the fax was unsolicited. Plaintiff brought suit under the Telephone Consumer Protection Act, 47 U.S.C. 227, asserting claims under FRCP 23 on behalf of a class defined as: All auto dealerships that were included in the Creditsmarts database on or before December 27, 2012, with fax numbers … who were sent” BMW faxes on specific dates. The Creditsmarts database was not preserved as of December 2012 but was preserved as of February 2014. The Third Circuit vacated the denial of class certification. Precedent does not categorically preclude affidavits from potential class members, combined with the Creditsmarts database, from satisfying the ascertainability standard. Because the database was not produced during discovery, plaintiff was denied the opportunity to demonstrate whether a reliable, administratively feasible method of ascertaining the class exists View "City Select Auto Sales Inc v. BMW Bank of North America Inc" on Justia Law

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The Supreme Judicial Court affirmed an order of the Public Utilities Commission granting in part and denying in part a petition for a certificate of public convenience and necessity (CPCN) to operate as a competitive local exchange carrier. Enhanced Communications of Northern New England, Inc. appealed. The Supreme Judicial Court affirmed, holding (1) after after finding that Enhanced met all three criteria set forth in section 4(A) of chapter 280 of the Commission’s regulations, the Commission could nonetheless deny Enhanced’s petition for a CPCN on public interest grounds; and (2) the Commission lawfully denied Enhanced’s petition on public interest grounds. View "Enhanced Communications of Northern New England, Inc. v. Public Utilities Commission" on Justia Law

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After the Commission held that petitioners engaged in a scheme designed to collect millions of dollars in unwarranted long-distance access charges from AT&T, petitioners challenged the Commission's award of damages to AT&T and statements in the Commission's decision that referred to the merits of the companies' state law claims against AT&T. The DC Circuit held that the Commission's damages award was permissible and that the Commission's conclusion that petitioners did not render any service to AT&T chargeable under the Communications Act was supported by substantial evidence in the record. However, insofar as the Commission reached and decided any questions of state law or the merits of petitioners' quantum meruit claims, those parts of the decision were without legal effect and vacated in relevant part. View "All American Telephone Co. v. FCC" on Justia Law

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The Telephone Consumer Protection Act (TCPA), 47 U.S.C. 227 et seq., permits a consumer to partially revoke her consent to be called by means of an automatic telephone dialing system. The Eleventh Circuit thought it logical that a consumer's power under the TCPA to completely withdraw consent and thereby stop all future automated calls encompasses the power to partially withdraw consent and stop calls during certain times. In this case, the court held that summary judgment was inappropriate because a reasonable jury could find that plaintiff partially revoked her consent to be called in "the morning" and "during the workday" on the October 13 phone call with a Comenity employee. Accordingly, the court reversed and remanded. View "Schweitzer v. Comenity Bank" on Justia Law

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Plaintiffs are Cross, also known as Mikel Knight, a country rap artist, and his businesses. Two vans, carrying independent contractors promoting Knight’s music, were involved in accidents that resulted in two deaths. “Families Against Mikel Knight,” apparently created by relatives of the accident victims, posted a Facebook page, which, plaintiffs claimed, incited violence and generated death threats against Knight. Plaintiffs sought to have the page removed. Facebook refused. Facebook filed a special motion to dismiss Plaintiffs’ subsequent suit, which alleged breach of written contract; negligent misrepresentation; negligent interference with prospective economic relations; breach of Civil Code section 3344; violation of common law right of publicity; and unlawful and unfair business practices. The trial court held that the complaint was based on protected activity, that plaintiffs could not prevail on the first three causes of action, and granted the anti-SLAPP (Strategic Lawsuit Against Public Participation, Code of Civil Procedure 425.16) motion as to them but denied the motion as to the three other causes of action. The court of appeal ruled in favor of Facebook and ordered that the complaint be stricken, noting that Facebook derived no benefit from any use of Knight’s name or likeness. View "Cross v. Facebook, Inc." on Justia Law

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Plaintiffs filed suit against Royal under the Telephone Consumer Protection Act (TCPA), 47 U.S.C. 227, seeking to hold Royal vicariously liable for several telephone calls made by telemarketers employed by AAAP. The Ninth Circuit applied the ten non-exhaustive factors set forth in the Restatement (Second) of Agency 220(2) (1958), and found that AAAP's telemarketers were acting as independent contractors rather than as Royal's agents. Therefore, the court held that Royal was not vicariously liable for the telephone calls and the district court properly granted summary judgment in favor of Royal. View "Jones v. Royal Administration Services" on Justia Law

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Petitioners challenged two related but more recent orders from the FCC adopting procedures for an auction designed to make more room on the electromagnetic spectrum for mobile broadband (wireless network) providers. The D.C. Circuit dismissed in part and denied in part the petition for review of the Commending Operations and Channel-Sharing orders. The court held that, insofar as petitioners challenge rules for the repacking process that originated with the Auction Order, their challenges were barred. In regard to the Channel-Sharing Order, the court held that this order was neither arbitrary nor unfounded. In this case, the order sets only modest goals and adopts means that common sense tells the court will advance those goals. Finally, the court lacked jurisdiction over petitioners' final claim against the Channel-Sharing Order: that it flouts the Regulatory Flexibility Act. View "Free Access & Broadcast Telemedia v. FCC" on Justia Law

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Petitioners sought review of the FCC's order governing the rates that utility companies may charge telecommunications providers for attaching their networks to utility-owned poles. The Eighth Circuit denied the petition, holding that the term "cost" in the Pole Attachments Act, 47 U.S.C. 224, was ambiguous and the same "cost" definition need not be used to determine the upper bound for cable rates under section 224(d) and the rate for telecommunications providers under section 224(e). Therefore, the statute permits, but did not require, the Cable Rate and the Telecom Rate to diverge. The court rejected petitioners' argument that the FCC's interpretation of the statute rendered section 224(e) superfluous; concluded that the order constituted a reasonable interpretation of the ambiguity in section 224(e); and denied the petition for review. View "Ameren Corp. v. FCC" on Justia Law

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Tannerite appealed the district court's dismissal of its defamation suit against NBC. The Second Circuit held that federal pleading standards, when applied to New York law, require a plaintiff asserting a defamation claim to allege facts demonstrating that the defendant made a false statement. In this case, Tannerite's complaint failed to allege that NBC made false statements regarding Tannerite exploding rifle targets. View "Tannerite Sports, LLC v. NBCUniversal News Group" on Justia Law

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The DC Circuit affirmed the dismissal of Nueva's application to the FCC for a license to construct and operate a Lower Power FM Radio (LPFM) station in Philadelphia. Because Nueva's interpretation of a Blog Post authored by the Chief of the Media Bureau, which was intended to give guidance to applicants, was not correct, the court affirmed the Commission's denial of the application for review without reaching Nueva's claim that the Blog Post was binding upon the Commission. In this case, the Commission's interpretation of the Blog Post was not arbitrary and capricious. The court also held that Nueva forfeited its argument that it did not have fair notice of the Commission's interpretation of the Blog Post. View "Nueva Esperanza, Inc. v. FCC" on Justia Law