Articles Posted in US Court of Appeals for the Fifth Circuit

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In regulating the practice of engineering, Mississippi restricts the use of the term “engineer.” Express operates automotive service centers in Mississippi and other states under the Tire Engineers mark. The Mississippi Board of Licensure for Professional Engineers & Surveyors informed Express that the name Tire Engineers violated Miss. Code 73-13-39 and requested that it change its company advertisement name. Express sought a declaratory judgment, citing Express’s “rights of commercial free speech guaranteed by the First Amendment”; and “rights under preemptive federal trademark law” under 15 U.S.C. 1051–1127. The district court granted the Board summary judgment. The Fifth Circuit reversed. The Board’s decision violates the First Amendment’s commercial speech protections. Because its essential character is not deceptive, Tire Engineers is not inherently misleading. The name, trademarked since 1948, apparently refers to the work of mechanics using their skills “not usu[ally] considered to fall within the scope of engineering” to solve “technical problems” related to selecting, rotating, balancing, and aligning tires. Nor is the name actually misleading. Because the name is potentially misleading, the Board’s asserted interests are substantial but the record does not support the need for a total ban on the name. Other states with similar statutes have not challenged the use of the trademark and the Board did not address why less-restrictive means, such as a disclaimer, would not accomplish its goal. View "Express Oil Change, L.L.C. v. Mississippi Board of Licensure for Professional Engineers & Surveyors" on Justia Law

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The Fifth Circuit denied WCX's petition for review of the FCC's order denying its application for review to apply the Automatic Roaming Rule to its dispute. The court held that any alleged error that the Commission may have made in stating that WCX requested Mobile Broadband Internet Access Services was harmless and therefore did not warrant vacatur; the Commission did not act arbitrarily or capriciously in concluding that the Data Roaming Rule applied to this dispute; and the Commission's determination that AT&T's proposed rates were commercially reasonable was supported by substantial evidence and not arbitrary and capricious. View "Worldcall Interconnect, Inc. v. FCC" on Justia Law

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The Fifth Circuit affirmed the district court's judgment dismissing plaintiff's complaint for failure to state a claim against Verizon under the Stored Communications Act (SCA), 18 U.S.C. 2701–2712. The court applied an objective standard to the good faith requirements found in sections 2702(c)(4) and 2707(e)(1) of the SCA and asked if Verizon's conduct was objectively reasonable. The court held that, taking all factual allegations as true and construing the facts in the light most favorable to plaintiff, Verizon acted in an objectively reasonable manner. In this case, Verizon only released the non-content information tied to plaintiff's cell phone number after it received a signed and certified form indicating that the request involved the danger of death or serious physical injury to a person, necessitating the immediate release of information, an alleged arson, and victims who were within the home when it was set on fire. Moreover, the government official who submitted the form listed his identifying information. Therefore, Verizon was protected from liability under the SCA or any other law for releasing the records both by the immunity provided by section 2703(e) and the complete defense created by section 2707(e)(1). View "Alexander v. Verizon Wireless Services, LLC" on Justia Law

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CenturyLink filed suit against Sprint for damages resulting from Sprint's refusal to pay $8.7 million in access charges. Sprint counterclaimed, seeking a declaration that it was not required to pay CenturyLink the higher statutory "tariff" rates under federal and state laws. The Fifth Circuit affirmed the district court's conclusion that Sprint was required to pay CenturyLink the challenged tariff-rate access charges. In this case, the district court did not clearly err in finding Sprint was operating as an interexchange carrier in providing its VoIP-to-traditional-format transfer service, rather than as an information-service provider. Therefore, Sprint was obligated to pay for the federal tariff rates billed by CenturyLink. The court noted that, because Sprint failed to raise preemption on appeal, the state law tariffs could not be challenged here. The court also affirmed the district court's conclusion that Sprint engaged in unjust and unreasonable practices when it retroactively clawed-back funds by not paying charges it undisputedly owed. View "CenturyTel of Chatham, LLC v. Sprint Communications Co." on Justia Law