Justia Communications Law Opinion Summaries

FBI agents impersonated members of the press so that they could trick an unknown student who had threatened to bomb his school into revealing his identity. When news of the FBI’s tactics became public, media organizations were incensed that their names and reputations had been used to facilitate the ruse. The Reporters Committee filed Freedom of Information Act, 5 U.S.C. 552(a)(3), requests seeking more information about the FBI’s ploy. The district court ruled that the government could withhold from disclosure dozens of the requested documents under FOIA Exemption 5, which states that agencies need not disclose “inter-agency or intra-agency memorandums or letters that would not be available by law to a party other than an agency in litigation with the agency.” The court ruled that the documents are protected by the common law deliberative process privilege and that their disclosure would likely cause harm to the agency’s deliberative processes going forward.The D.C. Circuit affirmed in part. The government properly withheld the emails in which FBI leadership deliberated about appropriate responses to media and legislative pressure to alter FBI undercover tactics and internal conversations about the implications of changing undercover practices going forward. The government did not satisfy its burden to show either that the other documents at issue were deliberative or that their disclosure would cause foreseeable harm. View "Reporters Committee for Freedom of the Press v. Federal Bureau of Investigation" on Justia Law

The Supreme Court vacated the circuit court's judgment on the pleadings in favor of Governor Michael Parson and Michelle Hallford, the custodian of records for the governor's office (collectively, the Governor's Office) and dismissing the underlying lawsuit, holding that the Governor's Office was not entitled to judgment, as a matter of law, on the face of the pleadings. This lawsuit stemmed from two public records requests Plaintiff made under the Sunshine Law, Mo. Rev. Stat. 610.010-.035. Plaintiff argued that the Governor's Office violated the Sunshine Law when it required Plaintiff to prepay an estimate of costs for his first request, arbitrarily refused to waive fees associated with his first request, failed to explain its estimated delay in producing certain requested records, and impermissibly redacted certain records. The circuit court entered judgment on the pleadings in favor of the Governor's Office. The Supreme Court vacated the judgment, holding that the circuit court erred in sustaining the Governor's Office's motion for judgment on the pleadings as to several issues. View "Gross v. Parson" on Justia Law

Five former employees of national security agencies who, during their employment, had clearances for access to classified and sensitive information, filed suit against the CIA, the Department of Defense, the National Security Agency, and the Office of the Director of National Intelligence. They facially challenged the agencies’ requirements that current and former employees give the agencies prepublication review of certain materials that they intend to publish to allow the agencies to redact information that is classified or otherwise sensitive to national security. They alleged that the agencies’ regimes “fail to provide former government employees with fair notice of what they must submit,” “invest executive officers with sweeping discretion to suppress speech[,] and fail to include procedural safeguards designed to avoid the dangers of a censorship system.”The Fourth Circuit affirmed the dismissal of the suit, holding that the prepublication review regimes were “reasonable” measures to protect sensitive information and did not violate the plaintiffs’ First Amendment rights. The regimes were not unduly vague under the Fifth Amendment; they adequately informed authors of the types of materials they must submit and established for agency reviewers the kinds of information that can be redacted. View "Edgar v. Haines" on Justia Law

The Fifth Circuit denied Huawei's petition for review challenging an FCC rule barring the use of government subsidies to buy equipment from companies designated security risks to communications networks. As a preliminary matter, the court dismissed Huawei's claims related to the initial designation for lack of jurisdiction based on ripeness grounds.The court concluded that the FCC reasonably interpreted its authority under the Communications Act in formulating the rule. The court found that the agency reasonably interpreted the Act's "public interest" provisions (47 U.S.C. 254(c)(1)(D), in coordination with section 201(b)), to authorize allocation of universal service funds based on the agency's exercise of limited national security judgment. Furthermore, the agency reasonably interpreted the "quality services" provision in section 254(b)(1) to support that exercise. Therefore, the court deferred to the agency's interpretation under Chevron review and rejected Huawei's argument that the agency lacked statutory authority for the rule. The court also considered the companies' other challenges under the Administrative Procedure Act and the Constitution, finding that claims regarding adequacy of notice, arbitrary and capricious review, vagueness, and due process are unavailing. View "Huawei Technologies USA, Inc. v. Federal Communications Commission" on Justia Law

A 1993 Communications Act amendment required the FCC to collect regulatory fees to recover the costs of its activities. “Space stations” (satellites) were included in the schedule but there were blanket exceptions for governmental or nonprofit entities. Initially, the FCC limited regulatory fees to those entities it licensed, which does not include foreign-licensed satellites. In 2013, the FCC invited comment on that conclusion but declined to decide the issue. The 2018 “Ray Baum’s Act,” 47 U.S.C. 159, changed the FCC’s authority to adjust the fee schedule based on the number of “units” (satellites) subject to fees rather than either the number of units or licensees and added the power to adjust fees based on factors “reasonably related to the benefits provided" by FCC activities.In 2019, the FCC again sought comment, noting that foreign-licensed satellites that serve U.S. customers benefit in the same manner as their U.S.-licensed competitors. The FCC concluded it should adopt regulatory fees for non-U.S. licensed satellites with U.S. market access. Foreign-licensed satellite operators must petition the FCC to access the U.S. market. The FCC devotes significant resources to processing such petitions. The current exemption “places the burden of regulatory fees" solely on U.S. licensees; commercial foreign-licensed satellites with general U.S. market access did not exist until 1997. The D.C. Circuit denied a petition for review. The petitioners have not shown that the FCC unreasonably interpreted the Act or provided inadequate notice of the Order. View "Telesat Canada v. Federal Communications Commission" on Justia Law

Hurricanes Irma and Maria devastated Puerto Rico and the U.S. Virgin Islands (the Territories) in September 2017 and destroyed large portions of the Territories’ telecommunications networks. In response, the FCC issued three orders that provided subsidies from the Universal Service Fund to help rebuild those networks. TriCounty, a telecommunications provider that contributes to the Fund, challenged two orders under the Administrative Procedure Act (APA) and the Communications Act. Tri-County argued that in one order, the FCC bypassed notice and comment without good cause and failed to justify the amount and allocation of funds and that in both orders, the FCC departed from a previous policy without explanation and contravened the Communications Act.The D.C. Circuit denied a petition for review, after finding that TriCounty had standing to challenge the orders, except with respect to the allocation of funds, from which it suffered no concrete harm. The Communications Act directs the FCC to make policies “for the preservation and advancement of universal service.” 47 U.S.C. 254(b). The FCC had previously used the Fund for disaster relief and its findings with respect to the Territories were reasonable. Under the APA, an agency may forgo notice and comment when it is “impracticable, unnecessary, or contrary to the public interest,” 5 U.S.C. 553(b)(B). View "Tri-County Telephone Association, Inc. v. e Federal Communications Commission" on Justia Law

COA submitted a Freedom of Information Act (FOIA), 5 U.S.C. 552, request, seeking access to specified Department of Justice (DOJ) records. The response indicated that 143 pages contained records that were responsive to the request. Three cover letters and four Questions for the Record (QFR) documents were identified as responsive, each contains questions posed by members of Congress and, for two of the documents, the corresponding answers provided by DOJ. Each document is self-contained, with a single, overarching heading. The questions and answers in each document are consecutively numbered, and all but one of the documents has consecutively numbered pages. DOJ removed pages and redacted material from those documents without claiming exemption from disclosure under FOIA but claiming that these pages and material need not be disclosed because they constitute “Non-Responsive Record[s].” COA filed suit.The D.C. Circuit held that DOJ’s position is untenable. Once an agency identifies a record it deems responsive, FOIA compels disclosure of the responsive record as a unit except insofar as the agency may redact information falling within a statutory exemption. FOIA calls for disclosure of a responsive record, not just responsive information within a record. Each of the QFR documents constitutes a unitary record, as demonstrated by DOJ’s own treatment of those documents. A challenge to DOJ’s alleged policy or practice of segmenting one record into multiple records to avoid disclosure was unripe. View "Cause of Action Institute v. Department of Justice" on Justia Law

Corley was convicted of three counts of sex trafficking of a minor. Corley subsequently sent Freedom of Information Act (FOIA) requests concerning his own case. The Department of Justice withheld 323 pages of responsive records, including “the names, descriptions and other personally identifiable information” of Corley’s victims, invoking FOIA Exemption 3, which authorizes withholding of certain materials “specifically exempted from disclosure by statute,” 5 U.S.C. 552(b)(3). The “statute” relied upon was the Child Victims’ and Child Witnesses’ Rights Act, which restricts disclosure of “information concerning a child [victim or witness],” 18 U.S.C. 3509(d)(1)(A)(i).The D.C. Circuit affirmed summary judgment in favor of the government. The Child Victims’ Act qualifies as an Exemption 3 withholding statute and covers the records Corley seeks. The Act provides that “all employees of the Government” involved in a particular case “shall keep all documents that disclose the name or any other information concerning a child in a secure place” and disclose such documents “only to persons who, by reason of their participation in the proceeding, have reason to know such information.” Corley sought the documents not as a criminal defendant but rather as a member of the public. The protections apply even though the victims are no longer minors. View "Corley v. Department of Justice" on Justia Law

The issue before the Washington Supreme Court’s in this case was whether an individual’s YouTube channel qualified as “news media” for requests for certain records under the Washington Public Records Act (PRA). In 2014, Brian Green and Peter Auvil went to the County-City Building in Tacoma to file a document and pay a parking ticket. As they went through security, the guard asked to search Auvil’s bag. Auvil refused. A Pierce County deputy sheriff came to assist, and Auvil began to record a video of the interaction on his phone. Auvil continued to refuse to allow the security guard to search the bag, arguing that the security checkpoint was a violation of his privacy rights. The conversation escalated, and the deputy asked the men to leave. When Green stood too close to him, the deputy shoved Green and caused him to fall backward onto the floor. The deputy arrested Green for criminal obstruction and took him to jail. He was released approximately 24 hours later. The prosecuting attorney’s office dismissed the charge. In December 2017, Green e-mailed a PRA request to the Pierce County Sheriff’s public records office requesting “[a]ny and all records of official photos and/or birth date and/or rank and/or position and/or badge number and/or date hired and/or ID Badge for all detention center and/or jail personnel and/or deputies on duty November 26 & 27 2014.” A representative of the Sheriff’s “Public Disclosure Unit” sent 11 pages of records, but did not include photographs or dates of birth as requested, explaining that the information was exempt under the PRA. Green said he was “working on a story concerning the Pierce County Jail” and again signed his e-mail with the title, “Investigative Journalist.” Green claimed his 6,000-subscriber YouTube channel met the definition of “news media” under the PRA. The Supreme Court concluded the statutory definition of “news media” required an entity with a legal identity separate from the individual. Green did not prove that he or the Libertys Champion YouTube channel met the statutory definition of “news media,” and, thus, he was not entitled to the exempt records. Therefore, the trial court was reversed in part. The Court affirmed the trial court’s denial of Pierce County’s motion to compel discovery. View "Green v. Pierce County" on Justia Law

The FCC's orders, together with Title VI of the Communications Act, 47 U.S.C. 521, establish rules by which state and local governments may regulate cable providers. A cable operator may provide cable services only if a franchising authority—usually a local body, but sometimes a unit of state government—grants the operator a franchise. Franchising authorities often require that cable operators pay fees, provide free cable service for public buildings, and set aside channel capacity for public, educational, and governmental use. The Act limits “franchise fees” to five percent of a cable operator’s gross revenues for cable services for any 12-month period.The FCC's 2007 “First Order” announced the “mixed-use rule,” under which franchisors could not regulate the non-cable services of cable operators who were “common carriers” under the Act. A “Second Order” interpreted “franchise fee” to include noncash exactions except those exempted by statute; counted the value of those exactions toward the fee cap; and extended the “mixed-use rule” to “incumbent” cable operators, who generally were not common carriers.The 2019 Third Order concluded that most cable-related noncash exactions are franchise fees; explained why the Act does not allow franchising authorities to regulate the non-cable services of cable operators who are not common carriers; and extended FCC rulings to state (rather than just local) franchising authorities.The Sixth Circuit denied, in part, challenges by franchising authorities, upholding the FCC’s interpretation of “franchise fee” but holding that noncash cable-related exactions should be assigned a value equal to the cable operator’s marginal cost in providing them. A fee on broadband services is not imposed based on the operator’s provision of cable services and is not a “franchise fee” under section 542(g)(1); it does not count toward the cap and its imposition is not preempted. The extension to state franchisors was not arbitrary. View "City of Chicago v. Federal Communications Commission" on Justia Law