Justia Communications Law Opinion Summaries

PDR compiles information about prescription drugs. Its producer sent health care providers faxes stating that they could reserve a free copy of a new e-book PDR. A recipient filed a putative class action, claiming that the fax was an “unsolicited advertisement” prohibited by the Telephone Consumer Protection Act, 47 U.S.C. 227(b)(1)(C). The Fourth Circuit vacated the dismissal of the suit, reasoning that the district court was required to adopt the interpretation of “unsolicited advertisement” set forth in a 2006 FCC Order: “any offer of a free good or service.” The court noted that the Hobbs Act provides that courts of appeals have “exclusive jurisdiction to enjoin, set aside, suspend ... or to determine the validity of” certain “final orders of the Federal Communication Commission,” in a challenge filed within 60 days after the entry of the order, 28 U.S.C. 2342(1). The Supreme Court vacated and remanded for consideration of preliminary questions that were not considered below. Is the Order the equivalent of a “legislative rule,” issued by an agency pursuant to statutory authority, having the “force and effect of law” or is it the equivalent of an “interpretive rule,” which simply advises the public of the agency’s construction of the statutes and rules it administers? If the Order is the equivalent of an “interpretive rule,” a district court may not be required to adhere to it. In addition, did the Hobbs Act’s exclusive-review provision afford a “prior” and “adequate” opportunity to seek judicial review of the Order under 5 U.S.C. 703? If not, the Administrative Procedure Act may permit PDR to challenge its validity in this enforcement proceeding. View "PDR Network, LLC v. Carlton Harris Chiropractic, Inc." on Justia Law

The Supreme Judicial Court vacated the order of the superior court denying Boston Globe Media Partners, LLC's (Globe) motion for summary judgment in this public records case, holding that the trial judge erred in concluding that the Department of Public Health (DPH) could withhold requested electronic indices of publicly available birth and marriage data pursuant to Mass. Gen. Laws. ch. 4, 7, twenty-sixth (c) (exemption (c)) but not pursuant to Mass. Gen. Laws ch. 4, 7, twenty-sixth (a) (exemption (a)).The Globe sought the requested records from DPH and asked the trial judge to declare that the indices constituted public records. DPH argued that it could withhold the indices pursuant to exemption (a) or exemption (c). The judge denied the Globe's motion for summary judgment, concluding that the indices could be withheld pursuant to exemption (c). The Supreme Judicial Court remanded the case for further proceedings on both exemptions, holding (1) the Globe's request requires an approach to exemption (a) that takes into account future requests for the indices; and (2) the application of exemption (c) involves a privacy issue that has yet to be addressed in the public records context. View "Boston Globe Media Partners, LLC v. Department of Public Health" on Justia Law

New York requires cable operators to set aside channels for public access. Those channels are operated by the cable operator unless the local government chooses to operate the channels or designates a private entity as the operator. New York City designated a private nonprofit corporation, MNN, to operate public access channels on Time Warner’s Manhattan cable system. Respondents produced a film critical of MNN. MNN televised the film. MNN later suspended Respondents from all MNN services and facilities. They sued, claiming that MNN violated their First Amendment free-speech rights. The Second Circuit partially reversed the dismissal of the suit, concluding that MNN was subject to First Amendment constraints.The Supreme Court reversed in part and remanded. MNN is not a state actor subject to the First Amendment. A private entity may qualify as a state actor when the entity exercises “powers traditionally exclusively reserved to the State” but “very few” functions fall into that category. Operation of public access channels on a cable system has not traditionally and exclusively been performed by government. Providing some kind of forum for speech is not an activity that only governmental entities have traditionally performed and does not automatically transform a private entity into a state actor. The City’s designation of MNN as the operator is analogous to a government license, a government contract, or a government-granted monopoly, none of which converts a private entity into a state actor unless the private entity is performing a traditional, exclusive public function. Extensive regulation does not automatically convert a private entity's action into that of the state. The City does not own, lease, or possess any property interest in the public access channels. View "Manhattan Community Access Corp. v. Halleck" on Justia Law

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

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

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

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

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

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

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