Justia Communications Law Opinion Summaries

MacIver, a “think tank that promotes free markets, individual freedom, personal responsibility, and limited government,” sponsors a “separately branded” MacIver News Service. Some of Wisconsin Governor Evers's press events are open to the public, and others are limited to subsets of the media of varying size. The Governor’s Office maintains a media advisory list to notify members of the media of events. The original list was based on newspaper circulation, radio listenership, and TV viewership.MacIver reporters learned of an invitation-only press and, although not invited, sent an RSVP. They were not admitted. Hundreds of other media personnel were also not invited to the small event. MacIver requested the criteria used to determine which journalists would be allowed access. The Governor’s Office distributed guidance for determining how media would be granted access to limited-access events, noting that the “most important consideration is that access is based on neutral criteria.” The factors were adapted from standards used by the Wisconsin Capital Correspondents Board and the U.S. Congress. According to the Governor, MacIver is not included on the list because MacIver Institute “is not principally a news organization” and “their practices run afoul of the neutral factors.”MacIver sued, citing the First and Fourteenth Amendments. The Seventh Circuit affirmed summary judgment in favor of Governor Evers. The press conferences were non-public fora and the criteria that the Governor used to accept or exclude media were reasonable. There is no evidence of viewpoint discrimination under any First Amendment test. View "John K. MacIver Institute for Public Policy, Inc. v. Evers" on Justia Law

The Communications Act, 47 U.S.C. 151, requires the FCC to advance universal service. The FCC's Universal Service Fund (USF), administered by USAC, allows carriers that serve high-cost areas to recover reasonable costs “for the provision, maintenance, and upgrading of facilities and services.” High-cost area carriers may also receive support from the National Exchange Carrier Association (NECA) pool.SIC was designated as an eligible telecommunications carrier to provide service to the Hawaiian homelands and began receiving high-cost support funds and participating in the NECA pool. SIC subsequently leased a "massive and expensive" cable from a related entity. In 2010, the FCC allowed 50 percent of SIC’s lease expenses. In 2016, the FCC determined that projected growth never materialized and limited SIC to $1.9 million per year from the NECA pool. The D.C. Circuit denied an appeal.In 2011, the FCC put a $250 per-line, per-month cap on USF support; SIC had received $14,000 per line per year. In 2015, SIC's manager was convicted of tax crimes; the company had paid $4,063,294.39 of his personal expenses, which he improperly designated as business expenses. The FCC suspended SIC's ‘high-cost funding. An audit revealed that SIC improperly received millions of dollars of USF funds. The Hawaii Public Utilities Commission refused to certify SIC. The D.C. Circuit declined to order reinstatement of USF support and upheld a 2016 FCC order requiring repayment of $27,270,390.SIC filed suit in the Claims Court, alleging that the reductions in SIC’s subsidies resulted in a taking of property without just compensation, seeking $200 million in damages. The Federal Circuit affirmed the dismissal of the suit. The court’s Tucker Act jurisdiction is preempted by the Communication Act's comprehensive remedial scheme. SIC’s claims seek review of FCC decisions, which are within the exclusive jurisdiction of the courts of appeals. View "Sandwich Isles Communications, Inc. v. United States" on Justia Law

The Telephone Consumer Protection Act of 1991 (TCPA) restricts communications made with an “automatic telephone dialing system,” defined as equipment with the capacity both “to store or produce telephone numbers to be called, using a random or sequential number generator,” and to dial those numbers, 47 U.S.C. 227(a)(1). Facebook’s social media platform allows users to elect to receive text messages when someone attempts to log in to the user’s account from a new device. Facebook sent such texts to Duguid, alerting him to login activity on a Facebook account linked to his telephone number, but Duguid never created any Facebook account. Duguid tried, unsuccessfully, to stop the unwanted messages. He brought a putative class action, alleging that Facebook violated the TCPA by maintaining a database that stored phone numbers and programming its equipment to send automated text messages. The Ninth Circuit ruled in Duguid’s favor.The Supreme Court reversed: To qualify as an “automatic telephone dialing system” under the TCPA, a device must have the capacity either to store a telephone number using a random or sequential number generator or to produce a telephone number using a random or sequential number generator. The statutory context confirms that the TCPA’s autodialer definition excludes equipment that does not use a random or sequential number generator. Congress found autodialer technology harmful because autodialers can dial emergency lines randomly or tie up all of an entity's sequentially numbered phone lines. Duguid’s interpretation would encompass any equipment that stores and dials telephone numbers. View "Facebook, Inc. v. Duguid" on Justia Law

Federal Communications Commission (FCC) ownership rules limit the number of radio stations, television stations, and newspapers that a single entity may own in a given market. Section 202(h) of the Telecommunications Act of 1996 directs the FCC to review its media ownership rules every four years and to repeal or modify rules that no longer serve the public interest. In 2017, the FCC concluded that three ownership rules were no longer necessary to promote competition, localism, or viewpoint diversity and that the record did not suggest that repealing or modifying those rules was likely to harm minority and female ownership. The FCC repealed two ownership rules and modified another. The Third Circuit vacated the order.The Supreme Court reversed. The FCC’s decision to repeal or modify the three ownership rules was not arbitrary and capricious under the Administrative Procedures Act (APA); it considered the record evidence and reasonably concluded that the rules at issue were no longer necessary to serve the agency’s public interest goals of competition, localism, and viewpoint diversity and that the changes were not likely to harm minority and female ownership. The FCC acknowledged the gaps in the data sets it relied on and noted that, despite its repeated requests for additional data, it had received no countervailing evidence suggesting that changing the rules was likely to harm minority and female ownership. The FCC considered two studies that purported to show that past relaxations of the ownership rules had led to decreases in minority and female ownership levels and interpreted them differently. The APA imposes no general obligation on agencies to conduct or commission their own studies. Nothing in the Telecommunications Act requires the FCC to conduct such studies before exercising its discretion under Section 202(h). View "Federal Communications Commission v. Prometheus Radio Project" on Justia Law

Plaintiffs-Appellants Santa Fe Alliance for Public Health & Safety, Arthur Firstenberg, and Monika Steinhoff (collectively the “Alliance”) brought a number of claims under Section 704 of the Telecommunications Act of 1996 (“TCA”), New Mexico’s Wireless Consumer Advanced Infrastructure Investment Act (“WCAIIA”), the Amendments to Chapter 27 of the Santa Fe City City Code, and Santa Fe mayor proclamations. The Alliance alleged the statutes and proclamations violated due process, the Takings Clause, and the First Amendment. Through its amended complaint, the Alliance contended the installation of telecommunications facilities, primarily cellular towers and antennas, on public rights-of-way exposed its members to dangerous levels of radiation. The Alliance further contended these legislative and executive acts prevented it from effectively speaking out against the installation of new telecommunications facilities. The United States moved to dismiss under Federal Rules of Civil Procedure 12(b)(1), and (b)(6), and the City of Santa Fe moved to dismiss under Rule 12(b)(6). The district court concluded that while the Alliance pled sufficient facts to establish standing to assert its constitutional claims, the Alliance failed to allege facts stating any constitutional claim upon which relief could be granted, thus dismissing claims against all defendants, including New Mexico Attorney General Hector Balderas. The Tenth Circuit affirmed dismissal of the Alliance's constitutional claims, finding apart from the district court, that the Alliance lacked standing to raise its takings and due process claims not premised on an alleged denial of notice. Furthermore, the Court held that while the Alliance satisfied the threshold for standing as to its First Amendment and procedural due process claims (premised on the WCAIIA and Chapter 27 Amendments), the district court properly dismissed these claims under Federal Rule of Civil Procedure 12(b)(6). View "Santa Fe Alliance v. City of Santa Fe" on Justia Law

Next makes office equipment and refers potential customers to reviews that rate its products highly. Next's competitor, Beyond, published reviews critiquing Next’s standing desks. Instead of pursuing a claim under the Lanham Act, 15 U.S.C. 1125, Next sued in federal court under diversity jurisdiction, relying on Wisconsin’s common law of defamation. The district judge treated product reviews and political commentary as equivalent and cited the Constitution, holding that because Next is a “limited-purpose public figure”—made so by its own efforts to sell its wares—all criticism by a competitor is constitutionally protected unless the statements are knowingly false or made with reckless indifference to their truth. The court concluded that the standard was not met. The Seventh Circuit affirmed on other grounds, stating that it was “skeptical” about the trial court’s use of the Constitution. On the district court’s approach, few claims under the Lanham Act ever could succeed, and commercial advertising would be treated just like political campaigning. Next failed to state a claim under Wisconsin law. “Whatever one can say about whether both gray paint and polished metal should be called ‘silver,’ or whether two circuit boards are as good as one, these are not ‘false assertions of specific unfavorable facts.’” View "Next Technologies, Inc. v. Beyond the Office Door LLC" on Justia Law

Curaden AG, a Swiss entity, manufactures toothbrushes. Curaden USA, an Ohio corporation headquartered in Arizona, is a Curaden AG subsidiary and promotes Curaden AG products throughout the U.S. The two companies had not executed the standard written distribution agreement that typically governs the practices of Curaden AG’s subsidiary distributors. Curaden USA never presented its advertising materials to Curaden AG for review. Curaden USA purchased a list of thousands of dental professionals’ fax numbers and created the fax advertisements at issue, which displayed Curaden USA’s contact information without mention of Curaden AG. Curaden USA hired companies to send the faxes and paid for the transmission. Lyngaas, a Livonia dentist who had received two Curaden USA faxes, filed a purported class action under the Telephone Consumer Protection Act (TCPA), 47 U.S.C. 227. The Sixth Circuit affirmed that Lyngaas could not pierce the corporate veil to hold Curaden AG liable for Curaden USA’s action, that faxes received by a computer over a telephone line violated the TCPA, that it had personal jurisdiction over both Curaden entities, that Curaden USA violated the TCPA but that Curaden AG was not liable as a “sender,” and that Lyngaas’s evidence and expert-witness testimony concerning the total number of faxes successfully sent were inadmissible due to unauthenticated fax records. A claims-administration process was established for class members to verify their receipt of the unsolicited fax advertisements. View "Lyngaas v. Curaden AG" on Justia Law

Plaintiffs, two former Liberian officials, allege that Global Witness, an international human rights organization, published a report falsely implying that they had accepted bribes in connection with the sale of an oil license for an offshore plot owned by Liberia. The DC Circuit affirmed the district court's dismissal of the complaint for failing to plausibly allege malice. The court concluded that the First Amendment provides broad protections for speech about public figures, and the former officials have failed to allege that Global Witness exceeded the bounds of those protections. In this case, plaintiffs advanced several interlocking theories to support the allegation of malice, but the court agreed with the district court that these theories fail to support a plausible claim that Global Witness acted with actual malice. View "Tah v. Global Witness Publishing, Inc." on Justia Law

Northwestern University’s Medill School of Journalism’s “Innocence Project” sought to exonerate Porter for two 1982 murders. Ciolino, a private investigator working with the Project, obtained a videotaped confession from Simon. Porter’s conviction was vacated. Simon pleaded guilty to the murders and was sentenced to 37 years in prison. Porter’s exoneration is regarded as the impetus for the Illinois death penalty moratorium. The tactics Ciolino used to obtain Simon’s confession came under scrutiny. It was alleged that Ciolino promised Simon that he would secure an attorney, Rimland, to represent him. Rimland shared office space with Ciolino and did not challenge Simon’s confession or present other evidence to the court. Ekl began representing Simon and filed a successive post-conviction petition asserting actual innocence. Two witnesses recanted their statements, indicating that those statements were induced by promises made by the Project. The circuit court vacated Simon’s convictions after Simon had served 15 years in prison. In 2015, Crawford published a book, Justice Perverted: How the Innocence Project … Sent an Innocent Man to Prison, which inspired the documentary at issue—Murder in the Park, in which Ekl allegedly made defamatory statements concerning Ciolino. Ciolino’s suit, alleging defamation, false light invasion of privacy, intentional infliction of emotional distress, and civil conspiracy, was dismissed as barred by the one-year statute of limitations. Except as against one defendant, the appellate court reversed. The Illinois Supreme Court affirmed the reinstatement of the claims against Ekl. Because the screenings of the documentary each constituted a separate publication of the allegedly defamatory material, the single-publication rule does not apply. Following the documentary's Chicago screening, Ciolino timely filed his complaint. View "Ciolino v. Simon" on Justia Law

Rio Vista Officer Collondrez responded to a hit-and-run accident. According to an internal affairs investigation, Collondrez falsified his report, arrested a suspect without probable cause, used excessive force, applied a carotid control hold on the suspect, and failed to request medical assistance. After hearings, the city agreed to pay Collondrez $35,000. Collondrez resigned. The agreement provides that Collondrez's disciplinary reports will only be released as required by law or upon legal process issued by a court of competent jurisdiction, after written notice to Collondrez. Penal Code section 832.71 was subsequently amended to require the disclosure of police officer personnel records concerning sustained findings of dishonesty or making false reports. The city responded to media requests under the Public Records Act for records, giving Collondrez prior notice of only some of the disclosures. Media outlets reported the misconduct allegations. His then-employer, Uber, fired Collondrez. Collondrez sued.The trial court partially granted the city’s to strike the complaint under California’s anti-SLAPP statute, Code of Civil Procedure 425.16, finding that Collondrez had shown a probability of prevailing on his claims for breach of contract and invasion of privacy but not on claims for interference with prospective economic advantage and intentional infliction of emotional distress. The court of appeal reversed in part, in favor of the city. The complaint arises from speech protected by the anti-SLAPP statute, but the trial court erred in finding Collondrez established a likelihood of prevailing two counts. View "Collondrez v. City of Rio Vista" on Justia Law