Articles Posted in US Court of Appeals for the District of Columbia Circuit

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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

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In an action filed by the government to enjoin the vertical merger between AT&T and Time Warner under Section 7 of the Clayton Act, the DC Circuit affirmed the district court's denial of the government's request for a permanent injunction. At issue on appeal was the district court's findings on its increased leverage theory whereby costs for Turner Broadcasting System's content would increase after the merger, principally through threats of long-term "blackouts" during affiliate negotiations. The court held that the government failed to clear the first hurdle in meeting its burden of showing that the proposed merger was likely to increase Turner Broadcasting's bargaining leverage. Furthermore, the government's objections that the district court misunderstood and misapplied economic principles and clearly erred in rejecting the quantitative model were unpersuasive. In this case, the government offered no comparable analysis of data for prior vertical mergers in the industry that showed "no statistically significant effect on content prices" as defendants had. Additionally, the government's expert opinion and modeling predicting such increases failed to take into account Turner Broadcasting System's post-litigation irrevocable offers of no-blackout arbitration agreements, which a government expert acknowledged would require a new model. The court also held that the evidence indicated that the industry had become dynamic in recent years with the emergence of distributors of only on-demand content, such as Netflix and Hulu. View "United States v. AT&T, Inc." on Justia Law

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Petitioners challenged the FCC's adoption of two limitations to programs that make voice and broadband services more available and affordable for low-income consumers. Petitioners argued that the limitations limited the enhanced Tribal Lifeline subsidy to services provided by eligible telecommunications carriers that utilize their own fixed or mobile wireless facilities, excluding carriers that resell services provided over other carriers' facilities (Tribal Facilities Requirement). Second, it limited the enhanced Tribal Lifeline subsidy to residents of "rural" areas on Tribal lands (Tribal Rural Limitation). The DC Circuit granted the petition for review, holding that the Commission's adoption of these two limitations was arbitrary and capricious by not providing a reasoned explanation for its change of policy that is supported by record evidence. In this case, by adopting the Tribal Facilities Requirement, the Commission's decision failed to consider the exodus of facilities-based providers; did not point to evidence that banning resellers from the Tribal Lifeline program would promote network buildout; failed to analyze the impact of the facilities requirement on Tribal residents who currently rely on wireless resellers; and ignored that the Commission's decision was a fundamental change that adversely affects the access and affordability of service for residents of Tribal lands. Likewise, by adopting the Tribal Rural Limitation, the Commission failed to consider the impact on service access and affordability. Finally, the court held that non-harmless procedural defects also existed. View "National Lifeline Association v. FCC" on Justia Law

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The Architect of the Capitol removed high school student David Pulphus’ painting from the exhibition of the 2016 winners of the Congressional Art Competition. The painting was initially described as “a colorful landscape of symbolic characters representing social injustice, the tragic events in Ferguson, Missouri, and the lingering elements of inequality in modern American society.” It was removed after protests by police unions and a FOX news personality, based on a newspaper story that described it as “depicting police officers as pigs with guns terrorizing a black neighborhood.” After unsuccessfully asking that the House Office Building Commission overrule the removal decision, Pulphus and Missouri Congressman Clay unsuccessfully sought a preliminary injunction, alleging violations of their First Amendment rights. The D.C. Circuit dismissed an appeal as moot; the 2016 Congressional Art Competition is over and no other concrete, redressable injury is alleged that was caused by the Architect’s removal decision. View "Pulphus v. Ayers" on Justia Law

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Sorenson and VRSCA petitioned for review of the FCC's 2017 Order setting rates for Video Relay Service (VRS). The DC Circuit held that VRSCA failed to establish associational standing because it did not identify a specific member who had been injured by the 2017 Order and it did not disclose that it was fully funded by Sorenson. In regard to Sorenson's petition, the court held that Sorenson had standing under the competitor standing doctrine and Sorenson was not barred from challenging the tiered-rate structure because of its prior lawsuits. On the merits, the court held that the FCC reasonably interpreted its efficiency mandate by retaining its tiered-rate system to prevent the market from devolving into a monopoly. Finally, FCC's tiered-rate structure in the 2017 Order was reasonable. Accordingly, the court dismissed VRSCA's petition for lack of standing and denied Sorenson's petition for review. View "Sorenson Communications, LLC v. FCC" on Justia Law

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In 2008 Oncor began installing smart meters that can report customers’ electricity usage remotely, eliminating the need for personal inspection and the associated labor costs. In 2012 a Texas Senate committee investigated whether smart meters have harmful effects on public health.” Reed, an Oncor “trouble man” who completed ad hoc repair jobs and responded to power outages, who was also the union's business manager and financial secretary, volunteered to testify. Reed signed the witness list as representing the union. During his brief testimony, Reed said he represented the local union and spoke of the meters burning, testified to receiving repair orders or damaged boxes after the meters burned, and spoke of experiences with disgruntled customers. Oncor investigated, concluded that Reed’s testimony was false, and terminated his employment. An ALJ found a violation of the National Labor Relations Act by interfering with Reed’s protected union activities. The NLRB affirmed. The D.C. Circuit remanded, directing the NLRB to clarify its decision under a two-prong test for assessing whether employees’ third-party appeals constitute protected concerted activity or amount to such detrimental disloyalty as to permit termination for cause. Even disparaging statements can enjoy protection where the communication indicates it is related to an ongoing dispute between the employees and the employers and the communication is not so disloyal, reckless or maliciously untrue as to lose protection. View "Oncor Electric Delivery Compan v. National Labor Relations Board" on Justia Law

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Telecommunications carriers with legacy obligations petitioned for review challenging the FCC's decision to hold their obligations in place during an interim period. The DC Circuit denied the petitions for review for two reasons. First, the court owed deference to the FCC's decision to hold a preexisting regime in place for an interim period, so as to avoid commandeering agency resources and to respect the agency's judgments about how to maintain baseline universal service in the context of uncertainties attending a major regulatory transition. Second, in response to petitioners' generalized allegations that vulnerable consumers do not need the disputed services and that the existing program leaves petitioners with underfunded obligations, the FCC has made clear that it will grant case-by-case forbearance or supplemental funding in areas where providers can meet their burden to show that their services were not required or that they needed additional financial help. View "AT&T, Inc. v. FCC" on Justia Law

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Numerous regulated entities petitioned for review of a 2015 order in which the Commission sought to clarify various aspects of the Telephone Consumer Protection Act's (TCPA) general bar against using automated dialing devices to make uninvited calls. The DC Circuit upheld the Commission's approach to revocation of consent, under which a party may revoke her consent through any reasonable means clearly expressing a desire to receive no further messages from the caller; sustained the scope of the agency's exemption for time-sensitive healthcare calls; set aside the Commission's effort to clarify the types of calling equipment that fell within the TCPA's restrictions; vacated the agency's approach to calls made to a phone number previously assigned to a person who had given consent but since reassigned to another (nonconsenting) person; and determined that the agency's one-call safe harbor, at least as defended in the order, was arbitrary and capricious. Accordingly, the court granted the petitions for review in part and denied in part. View "ACA International v. FCC" on Justia Law

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The DC Circuit affirmed the district court's grant of Google's motion to dismiss in an action brought by plaintiff and her company against Google for failing to remove an offensive blog post. Plaintiff alleged three state law causes of action: defamation; tortious interference with a business relationship; and intentional infliction of emotional distress. The district court concluded that the Communications Decency Act (CDA), 47 U.S.C. 230, immunized Google from liability for the publication of third-party content. The court applied the three part test in Klayman v. Zuckerberg, 753 F.3d 1354, 1357 (D.C. Cir. 2014), to determine that Google had established immunity. In this case, Google qualified as an interactive computer service provider; plaintiff alleged that a third party created the offensive content on the blog; and plaintiff sought to establish that Google was liable as a publisher of the content. View "Bennett v. Google LLC" on Justia Law

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This case arose from an agreement the parties entered into for the sale of appellant's radio station to Entercom upon approval by the FCC. The DC Circuit denied appellant's appeal and dismissed as moot his central claim challenging Entercom's legal eligibility to acquire the station. The court held that appellant's challenge to the FCC's application of the pre-2002 Order's local-market definition was moot and his remaining challenges to the FCC decision lacked merit. Accordingly, the court dismissed in part and denied in part. View "Stolz v. FCC" on Justia Law