Justia Communications Law Opinion Summaries

Alco, a vending machine company, contracted with B2B, a “fax broadcaster,” in 2005, and dealt with B2B and Macaw, a Romanian business, that worked with B2B. Each sample advertisement provided by B2B stated that the message was “the exclusive property of Macaw . . . , which is solely responsible for its contents and destinations.” According to Alco, B2B was to identify recipients from a list of businesses that had consented to receive fax advertising from B2B. Alco never saw this list, but believed that each business would be located near Alco’s Ohio headquarters, and had an existing relationship with B2B, so that the advertising would be “100 percent legal.” B2B broadcast several thousand faxes, advertising Alco. According to Alco, B2B did not inform Alco about the number of faxes, the dates on which they were sent, or the specific businesses to which they were addressed. After each broadcast, Alco received complaints of unauthorized faxes in violation of the Telephone Consumer Protection Act 47 U.S.C. 227(b)(1)(C), which it referred to B2B. Siding filed a purported class action against Alco. The district court rejected the suit on summary judgment. The Sixth Circuit reversed and remanded for determination of whether B2B broadcast the faxes “on behalf of” Alco, considering the degree of control that Alco exercised, whether Alco approved the final content, and the contractual relationship. View "Siding and Insulation Co. v. Alco Vending, Inc." on Justia Law

Plaintiffs received internet and cable services from TWC in Chardon, Ohio. The Bureau of Criminal Investigation (BCI), conducting an online investigation to identify individuals possessing and sharing child pornography, located a suspect using a public IP address of 173.88.218.170 and found images and movie files titled consistent with child pornography. The IP address of plaintiffs’ computers was 173.88.218.70. Responding to a subpoena for subscriber information for the .170 address, TWC indicated that it was assigned to plaintiffs. While executing a search warrant for plaintiffs’ residence, BCI agents determined that the IP address assigned to plaintiffs was the .70 address, not the .170 address. The search was terminated without discovery of any evidence of criminal activity. Plaintiffs alleged that the search was extensive, destructive, and in plain sight of neighbors; that TWC’s conduct was intentional and fraudulent; that disclosure of their subscriber information without authorization violated the Stored Communications Act, 18 U.S.C. 2707(a)); and state-law claims. The Sixth Circuit affirmed denial of TWC’s claim of immunity under section 2703(e), but found that 18 U.S.C. 2707(e)’s “good faith reliance” defense barred the claims and that the state-law claims failed because the factual allegations were insufficient to establish that TWC disclosed the information intentionally, wrongfully, or in breach of contract. View "Long v. Insight Commc'ns of Cent. Ohio, LLC" on Justia Law

Brown filed a class action complaint, alleging that she contacted Defender by telephone in response to its advertisement for a home security system; that, during several calls, she provided Defender with personal information; and that Defender recorded those calls without her permission and without notifying her of the recording. Brown claimed violations of California Penal Code 632, which prohibits the recording of confidential telephone communications without the consent of all parties. Defender owned a commercial general liability insurance policy issued by First Mercury, covering “personal injury” and “advertising injury.” In a separate definitions section, the policy defined both “advertising injuries” and “personal injuries” as those “arising out of … [o]ral or written publication of material that violates a person’s right of privacy.” The parties eventually reached a settlement. Defender provided First Mercury with timely notice of the Brown suit. First Mercury denied coverage and refused to defend. The Seventh Circuit affirmed dismissal of Defender’s suit against First Mercury. Defender’s Policy requires “publication,” which was neither alleged nor proven. View "Defender Sec. Co. v. First Mercury Ins. Co." on Justia Law

The trial court granted a motion to enforce a settlement between plaintiffs and defendants. The trial court found that defendant Fair’s printed name at the end of his email where he had agreed to settlement terms set forth in an email from plaintiffs’ counsel was an “electronic signature” within the meaning of California’s Uniform Electronic Transactions Act (Civ. Code, 1633.1) and what it referred to as the “common law of contract” or “contract case law.” Subsequently, plaintiffs requested attorney fees under a provision in an arbitration agreement between the parties. The trial court found plaintiffs to be the prevailing parties but denied the request for attorney fees because the matter never proceeded to arbitration and plaintiffs had failed to show that any contract authorized fees in the litigation. The court of appeal reversed the order enforcing the settlement: the agreement was not signed by plaintiffs and the trial court erred in determining that Fair’s printed name at the end of his email was enforceable. Since plaintiffs are not the prevailing party, they are not entitled to attorney fees. View "J.B.B. Inv. Partners v. Fair" on Justia Law

This case arose from a dispute between CoreTel and Verizon regarding their respective responsibilities under an interconnection agreement (ICA), a private contract that implements duties imposed by the Telecommunications Act of 1996, 47 U.S.C. 151 et seq. Each party contended that the other improperly billed it for various services. The district court granted summary judgment in Verizon's favor on each claim. The court concluded that CoreTel was entitled to summary judgment in its favor on both its and Verizon's claims for declaratory relief relating to Verizon's facilities charges where the ICA entitled CoreTel to order entrance facilities for interconnection at TELRIC. The court remanded for consideration of CoreTel's claim for injunctive relief. The court affirmed the district court's grant of summary judgment on CoreTel's facilities claims where the facilities CoreTel provided were not entrance facilities under ICA 1.25 and CoreTel pointed to no provision of the ICA that authorized it to simply levy facilities charges for any piece of equipment that handled Verizon's traffic. The court affirmed the district court's grant of summary judgment in Verizon's favor on CoreTel's reciprocal compensation claims. Finally, the court affirmed the district court's grant of summary judgment in Verizon's favor on Verizon's switched-access claims. View "CoreTel Virginia, LLC v. Verizon Virginia, LLC" on Justia Law

This case arose from a dispute over Core's interconnection agreement with Verizon. On appeal, Core challenged the district court's grant of summary judgment to Verizon with respect to tort claims pursued by Core under Maryland law. Core also contended that the district court erred when it awarded nominal damages to Core on its related claim for breach of contract (Reconsideration Order). The court concluded that the district court did not abuse its discretion in permitting Verizon to raise the Exculpatory Clause, post-remand, in the summary judgment proceedings; the district court did not err in enforcing the Exculpatory Clause in the consolidated proceedings where the Clause was not void under principles of Maryland contract law; the district court did not err in awarding Verizon summary judgment on Core's state law tort claims for concealment and unfair competition where Core failed to establish that Verizon acted with intent to defraud or deceive; and the district court properly entered judgment on Core's breach of contract claim in the nominal sum of one dollar. Accordingly, the court affirmed the judgment of the district court. View "Core Communications, Inc. v. Verizon Maryland, Inc." on Justia Law

In 2008, the legislature enacted legislation to establish the Idaho Education Network (IEN), which was to be a high-bandwidth telecommunications distribution system for distance learning in every public school in the state. Syringa Networks, LLC (Syringa), an Idaho telecommunications company, entered into a “teaming agreement” with ENA Services, LLC (ENA). Pursuant to their agreement, ENA submitted a proposal in response to a request-for-proposals (RFP) with the Department of Administration, although the cover letter stated that both ENA and Syringa were responding jointly to the proposal. Qwest Communications Company, LLC, and Verizon Business Network Services, Inc., also submitted responsive proposals. The proposals were then scored based upon specific criteria; the ENA and Qwest proposals received the highest scores. The Department issued a letter of intent to award contracts to Qwest and ENA. One month later, it issued amendments to the two purchase orders to alter the scope of work that each would perform. Qwest became "the general contractor for all IEN technical network services" (providing the “backbone”) and ENA became "the Service Provider." The effect of these amendments was to make Qwest the exclusive provider of the backbone, which was what Syringa intended to provide as a subcontractor of ENA. Syringa filed this lawsuit against the Department, its director, the chief technology officer, ENA and Qwest. The district court ultimately dismissed Syringa’s lawsuit against all of the Defendants on their respective motions for summary judgment. Syringa then appealed the grants of summary judgment, and the State Defendants cross-appealed the refusal to award them attorney fees. Upon review, the Supreme Court affirmed the judgment dismissing all counts of the complaint except count three seeking to set aside the State's contract with Qwest on the ground that it was awarded in violation of the applicable statutes. Furthermore, the Court reversed Qwest’s award of attorney fees against Syringa. We remand to the trial court the determination of whether any of the State Defendants were entitled to an award of attorney fees against Syringa for proceedings in the district court. The Court awarded costs and attorney fees on appeal to ENA. Because the State Defendants and Syringa both prevailed only in part on appeal, the Court did not award them either costs or attorney fees on appeal.View "Syringa Networks v. Idaho Dept of Admin" on Justia Law

Two appeals are were consolidated from chancery-court cases. In the first case, Diamondhead Country Club and Property Owners Association, Inc. sued Thomas R. Alfonso, III, and Anne Scafidi Cordova,1 d/b/a Bay Jourdan Publishing Co. (BJP) for breach of a contract to publish "The Diamondhead News." In 1997, the chancery court entered a preliminary injunction order preventing BJP from publishing "The Diamondhead News," selling advertising, collecting or disposing of advertising revenues derived from the publication the paper, and interfering with the printing, publication, or distribution of "The Diamondhead News." The chancery court also found that an arbitration clause in the publishing contract was inapplicable to the lawsuit. The chancery court denied BJP’s two subsequent motions to compel arbitration of the breach-of-contract dispute. BJP appealed the chancery court’s latest denial of arbitration. In the second case, BJP sued Diamondhead and Gulf Publishing Co., Inc., d/b/a "The Sun Herald" (“Gulf Publishing”), for intentional interference with the publishing contract. Gulf Publishing filed a motion for summary judgment. The court granted summary judgment to Gulf Publishing and directed the entry of a final judgment as to Gulf Publishing pursuant to Mississippi Rule of Civil Procedure 54(b). BJP appealed the grant of summary judgment. Upon review, the Supreme Court affirmed the chancery court’s order denying BJP’s third motion to compel arbitration because the issue was ruled upon previously, and no appeal was taken. Finding genuine issues of material fact for trial, the Court reversed the chancery court’s order granting summary judgment to Diamondhead and Gulf Publishing, and remanded the second case for further proceedings. View "Alfonso v. Gulf Publishing Co., Inc." on Justia Law

The United States Court of Appeals for the Ninth Circuit certified a question to the Washington Supreme Court concerning whether an "early termination fee" (ETF) in a broadband internet service contract constituted an "alternative performance provision" or as a liquidated damages clause. Appellants are all customers who either incurred this ETF for canceling early or were threatened with this ETF for attempting to cancel early. All Appellants were dissatisfied with Clearwire’s service, alleging that instead of the fast and reliable service promised, they received inconsistent and painstakingly slow speeds. Plaintiff Chad Minnick sued Clearwire in King County Superior Court in April 2009, claiming that Clearwire was committing false advertising and was imposing ETFs unlawfully. He then filed the first amended complaint in May, which added the other 11 plaintiffs through class certification. In July, Clearwire removed the case to the federal district court where it filed a motion to dismiss all of Appellants' claims. The district court granted Clearwire's motion. Appellants then appealed to the Ninth Circuit, arguing that the ETF was a liquidated damages provision and not an alternative performance provision as the trial court found. Under Washington law, an alternative performance provision is distinguishable from a liquidated damages provision because it provides a "real option" to the promisor and the alternatives are reasonably equal to each other. Here, the ETF provided a "real option" at the time of contracting because Appellants wanted to retain the control and flexibility that the early cancellation allowed them. Further, the ETF was less expensive than the remaining payments for the majority of the contract's life, thereby indicating the options were reasonably related. The ETF also allowed Appellants to benefit from reduced monthly premiums under the fixed-term contract but also enjoy some of the flexibility of the month-to-month subscription. Therefore, the ETF is an alternative performance provision that is not subject to a penalty analysis.View "Minnick v. Clearwire US, LLC" on Justia Law

Defendant AT&T Mobility, LLC appealed a trial court’s denial of its motion to compel arbitration. AT&T claimed the trial court erred by ruling that AT&T had not been assigned Plaintiff Pike Porter’s cell phone contract before sending him unsolicited text messages and erred in failing to hold an evidentiary hearing on this issue. AT&T also argued that even if Plaintiff's claims arose before AT&T purchased his contract, the trial court erred as a matter of law in holding that AT&T cannot enforce the binding arbitration agreement in Plaintiff's original cell phone contract. The court also noted that the arbitration agreement could not bind Plaintiff "with regard to events between him and AT&T that took place at a time when his only contract was with Unicel, not AT&T." AT&T highlighted four pieces of evidence it submitted along with its motion to amend and reconsider as "undisputed" proof that it purchased Plaintiff's contract in December 2008. Upon review of AT&T's evidence, the Supreme Court concluded the document did not establish that Plaintiff's contract was one of the 100,000 to 150,000 contracts sold, nor did it suggest that "certain Unicel assets" included all of the wireless contracts Unicel held in Vermont. Accordingly, the Court affirmed the trial court's decision in favor of Plaintiff.View "Porter v. AT&T Mobility, LLC" on Justia Law