Justia Communications Law Opinion Summaries
Articles Posted in Communications Law
Union Telephone Co. v. Wyoming Public Service Commission
The Supreme Court affirmed the order of the Wyoming Public Service Commission (PSC) administering the Wyoming Universal Service Fund (WUSF) for the 2020-2021 fiscal year, holding that the PSC's order was lawful.It issue was the interplay between the Federal Universal Service Fund (FUSF) and the WUSF. The PSC's order adopted a methodology for calculating WSFU disbursements that treated a portion of the 2019 support each Wyoming telecommunications company received from the federal Alternative Connect America Cost Model programs as contributions from the FUSF. Union Telephone Company filed a petition for review, asserting that the order rejected existing law and materially prejudiced Union. The Supreme Court affirmed, holding (1) collateral estoppel did not bar the PSC from adopting a WUSF calculation methodology that considered the A-CAM funds to be FUSF contributions; (2) the PSC's order was lawful; and (3) Union's remaining claims of error were unavailing. View "Union Telephone Co. v. Wyoming Public Service Commission" on Justia Law
City of Austin v. Reagan National Advertising of Austin, LLC
Austin Texas specially regulates signs that advertise things that are not located on the same premises as the sign and signs that direct people to offsite locations (off-premises signs). Its sign code prohibited the construction of new off-premises signs. Grandfathered off-premises signs could remain in their existing locations but could not be altered in ways that increased their nonconformity. On-premises signs were not similarly restricted. Advertisers, denied permits to digitize some billboards, argued that the prohibition against digitizing off-premises signs, but not on-premises signs, violated the First Amendment. The district court upheld the code. The Fifth Circuit reversed, finding the distinction "facially content-based" because an official had to read a sign’s message to determine whether it was off-premises.The Supreme Court reversed, rejecting the view that any examination of speech or expression inherently triggers heightened First Amendment concern. Restrictions on speech may require some evaluation of the speech and nonetheless remain content-neutral. The on-/off-premises distinction is facially content-neutral; it does not single out any topic or subject matter for differential treatment. A sign’s message matters only to the extent that it informs the relative location. The on-/off-premises distinction is more like ordinary time, place, or manner restrictions, which do not trigger strict scrutiny. Content-based regulations are those that discriminate based on the topic discussed or the idea or message expressed. The Court remanded, noting that evidence that an impermissible purpose or justification underpins a facially content-neutral restriction may mean that the restriction is nevertheless content-based and, to survive intermediate scrutiny, a restriction on speech or expression must be “narrowly tailored to serve a significant governmental interest.” View "City of Austin v. Reagan National Advertising of Austin, LLC" on Justia Law
Steinbuch v. University of Arkansas
The Supreme Court affirmed in part and dismissed in part the orders of the circuit court denying Appellant's motion for an order to waive record fees and Appellant's motion to be determined the prevailing party in a lawsuit brought pursuant to the Freedom of Information Act (FOIA), holding that there was no error or abuse of discretion.One appeal in this case related to Appellant's efforts to be declared a prevailing party in his FOIA action against the University of Arkansas, and the second was an order denying his motion to waive record fees. The circuit court dismissed the FOIA claim with prejudice because the parties had negotiated a settlement as to that claim. In denying the motion at issue, the circuit court found it to be improper and untimely. The Supreme Court (1) dismissed Appellant's appeal as to his motion for an order to waive fees as not final and appealable; and (2) affirmed the order of the circuit court denying the motion for determination of prevailing party, holding that the circuit court based its decision on independent and alternative grounds, and Appellant failed to challenge them both. View "Steinbuch v. University of Arkansas" on Justia Law
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Arkansas Supreme Court, Communications Law
Sirius XM Radio, Inc. v. Hegar
The Supreme Court reversed the decision of the court of appeals apportioning to Texas all of Sirius XM Radio's receipts from Texas subscribers, holding that Sirius's monthly subscription fees from Texas users were not receipts from a "service performed in this state."To calculate the franchise tax it owes to the state of Texas, Sirius must first calculate its receipts from each service performed in the state. See Tex. Tax Code 171.103(a). Before the Supreme Court, Sirius argued that the service it performs for its Texas subscribers is the production of radio shows and the transmission of a radio signal, almost all of which takes place outside of the state. The Supreme Court agreed and reversed the court of appeals' holding that the service performed by Sirius for Texas subscribers was unscrambling the radio signal. The Supreme Court reversed, holding (1) Sirius had little personnel or equipment in Texas that performs the radio production and transmission services for which its customers pay monthly subscription fees; and (2) therefore, the court of appeals erred in apportioning to Texas all of Sirius's receipts from Texas subscribers. View "Sirius XM Radio, Inc. v. Hegar" on Justia Law
Gorss Motels, Inc. v. Brigadoon Fitness Inc.
Gorss operated a Super 8 Motel as a franchisee of Wyndham. Gorss agreed to furnish the facility in accordance with Wyndham’s standards and to purchase supplies and equipment from approved vendors. Brigadoon sells fitness equipment and is an approved vendor for Wyndham franchisees. Wyndham periodically provided contact information for its franchisees, including fax numbers, to Brigadoon. Gorss also attended trade shows and personally provided contact information to Wyndham-approved suppliers. Gorss received a fax from Brigadoon advertising its fitness equipment. The fax was sent to more than 10,000 recipients. Brigadoon formulated the list of recipients from a variety of sources.Gorss filed a purported class action under the Telephone Consumer Protection Act, 47 U.S.C. 227(b)(1)(c), seeking statutory penalties. The district court declined to certify a class, finding that common issues did not predominate. The Seventh Circuit affirmed, rejecting Gorss’s argument that the court should have required Brigadoon to show with specific evidence that a significant percentage of the class is subject to the “prior permission” defense. Gorss offered no generalized class-wide manner to resolve the permission question. Brigadoon’s claim of permission was not speculative, vague, or unsupported; it was based on a multitude of contracts, relationships, memberships, and personal contacts. View "Gorss Motels, Inc. v. Brigadoon Fitness Inc." on Justia Law
Houston Community College System v. Wilson
Wilson, a member of the Board of Trustees of the Houston Community College System, brought multiple lawsuits challenging the Board’s actions. In 2016, the Board publicly reprimanded Wilson. He continued to charge the Board with violating its ethical rules and bylaws, in media outlets and in state-court actions. In 2018, the Board adopted a public resolution “censuring” Wilson and stating that his conduct was “not consistent with the best interests of the College” and “reprehensible.” The Board deemed Wilson ineligible for Board officer positions during 2018. The Fifth Circuit reversed the dismissal of Wilson’s suit under 42 U.S.C. 1983.The Supreme Court held that Wilson does not possess an actionable First Amendment claim arising from the Board’s purely verbal censure. In First Amendment cases, long-settled and established practice “is a consideration of great weight.” Elected bodies have long exercised the power to censure their members. In disagreements of this sort, the First Amendment permits “[f]ree speech on both sides and for every faction on any side.”A plaintiff pursuing a First Amendment retaliation claim must show that the government took an “adverse action” in response to his speech that “would not have been taken absent the retaliatory motive.” Any fair assessment of the materiality of the Board’s conduct must consider that elected representatives are expected to shoulder some criticism about their public service and that the only adverse action at issue is itself a form of speech from Wilson’s colleagues. The censure did not prevent Wilson from doing his job and did not deny him any privilege of office. Wilson does not allege it was defamatory. The censure does not qualify as a materially adverse action capable of deterring Wilson from exercising his own right to speak. View "Houston Community College System v. Wilson" on Justia Law
Fisher v. Perron
Fisher is the personal representative of his mother’s estate and a co-trustee of her trusts with his siblings, Perron and Peter. Perron recorded telephone discussions of estate matters without informing her siblings that she was recording. Perron sued Fisher and attached transcripts of one call to pleadings; the probate court struck the transcript from the record, prohibited its further use, and held Perron liable for attorney’s fees and costs.Fisher sued, alleging that Perron violated the Federal Wiretap Act, 18 U.S.C. 2510– 23, which prohibits a call participant from recording the call “for the purpose of committing any criminal or tortious act” or disclosing or using any such illegally intercepted oral communication; violated Michigan’s eavesdropping law, which makes the use of an electronic “device to eavesdrop upon [a] conversation without the consent of all parties thereto” a felony; and committed the tort of public disclosure of private facts.The Sixth Circuit affirmed the dismissal of the suit. A participant does not violate Michigan’s eavesdropping statute by recording a conversation without the consent of other participants. The complaint contains no facts to support an inference that a reasonable person would find the facts disclosed in the call “highly offensive” to support a claim of public disclosure of private facts. Because Fisher did not establish either the tort or the state law violation, he did not establish “the purpose of committing any criminal or tortious act” under federal law. View "Fisher v. Perron" on Justia Law
Riley’s American Heritage Farms v. Elsasser
Riley’s Farm provides historical reenactments and hosts apple picking. In 2001-2017, schools within the District took field trips to Riley’s. In 2018, Riley used his personal Twitter account to comment on controversial topics. Parents complained; a local newspaper published an article about Riley and his postings. The District severed the business relationship. In a 42 U.S.C. 1983 suit alleging retaliation for protected speech, the district court granted the District defendants summary judgment.The Ninth Circuit reversed as to injunctive relief but affirmed as to damages. Riley made a prima facie case of retaliation; he engaged in expressive conduct, some of the District defendants took an adverse action that caused Riley to lose a valuable government benefit, and those defendants were motivated by Riley’s expressive conduct. There was sufficient evidence that Board members had the requisite mental state to be liable for damages. The defendants failed to establish that the District’s asserted interests in preventing disruption to their operations and curricular design because of parental complaints outweighed Riley’s free speech interests. Even assuming that the selection of a field trip venue was protected government speech, the pedagogical concerns underlying the government-speech doctrine did not apply because Riley was not speaking for the District. Nonetheless, the defendants were entitled to qualified immunity on the damages claim. There was no case directly on point that would have clearly established that the defendants’ reaction to parental complaints and media attention was unconstitutional. View "Riley’s American Heritage Farms v. Elsasser" on Justia Law
Cox Communications, Inc. v. T-Mobile US, Inc.
In Section 9(e) of a settlement agreement between Cox Communications and Sprint Corporation (T-Mobile U.S., Inc.'s predecessor-in-interest, Cox agreed that, before it offered wireless mobile services to its customers, it would enter into a “definitive” exclusive provider agreement with Sprint “on terms to be mutually agreed upon between the parties for an initial period of 36 months[.]” Cox and Sprint never entered into such a partnership. After T-Mobile finalized a purchase of Sprint in April 2020, the combined entity bid for Cox’s business, but Cox decided to partner with Verizon. After hearing that it would not be Cox’s exclusive partner, T-Mobile accused Cox of breaching the Settlement Agreement. Cox sued T-Mobile in Delaware's Court of Chancery, seeking a declaration that Section 9(e) was either an unenforceable “agreement to agree” or a Type II preliminary agreement requiring Cox and T-Mobile to negotiate in good faith. According to Cox, it was free to partner with Verizon because these good-faith negotiations failed. Shortly before trial, Cox also suggested that whatever Section 9(e) means, T-Mobile could not enforce it because the Settlement Agreement was between Cox and Sprint, and Cox never consented to an assignment. T-Mobile filed a compulsory counterclaim for breach of contract. In support of this claim, T-Mobile offered that Section 9(e) meant that, although Cox was not obligated to provide wireless mobile services, if it wished to do so, it had to first enter into an exclusive provider agreement with T-Mobile as the conceded successor-in-interest to Sprint. For T-Mobile, the failure of the parties’ attempt to negotiate the definitive terms of the agreement meant that Cox could not enter the wireless mobile market at all. The Court of Chancery agreed with T-Mobile and permanently enjoined Cox from “partnering with any mobile network operator other than T-Mobile to provide Wireless Mobile Service before entering into an agreement with T-Mobile. The Delaware Supreme Court disagreed with the Court of Chancery, finding the Settlement Agreement was a Type II preliminary agreement that obligates the parties to negotiate open items in good faith. The judgment was reversed, the injunction vacated, and the matter remanded so that the Court of Chancery could determine whether Cox and T-Mobile discharged their obligations to negotiate in good faith. View "Cox Communications, Inc. v. T-Mobile US, Inc." on Justia Law
Lepore v. United States
The First Circuit reversed the order of the district court ordering the release of sealed archival records of certain grand jury proceedings and its judgment in favor of historian and Petitioner Jill Lepore, holding that the federal court did not have the authority to order the release of the grand jury records.As research on a book she was writing, Petitioner filed a Freedom of Information Act request seeking the release of sealed archival records of grand jury proceedings from 1971 that were held to consider possible criminal charges arising out of the publication of excerpts from the "Pentagon Papers," a government study of the Vietnam War. The district court ultimately ordered the records released. The First Circuit reversed, holding that the court erred in holding that it had the authority to order the release of grand jury records based upon its finding that historical interest in the records outweighed any countervailing considerations. View "Lepore v. United States" on Justia Law