Justia Communications Law Opinion SummariesArticles Posted in US Court of Appeals for the Sixth Circuit
Libertarian National Committee, Inc. v. Holiday
In October 2014, Kentucky Educational Television (KET) hosted a debate between the candidates for one of Kentucky’s seats in the U.S. Senate. KET limited the debate to candidates who qualified for the ballot, had collected at least $100,000 in campaign contributions, and had an independent poll indicating that at least one in 10 Kentuckians planned to vote for them. The criteria excluded Patterson, the Libertarian Party candidate. The district court rejected a suit under 42 U.S.C. 1983 by Patterson and the Party, noting that, with relatively few limits, KET could invite to its debates whomever it wanted. KET was not required to create—let alone publish—any criteria at all. KET restricted who could appear in a televised debate, not on the ballot. The debate criteria had nothing to do with a candidate’s views; rather, they measured whether voters had shown an objective interest in hearing the candidate. View "Libertarian National Committee, Inc. v. Holiday" on Justia Law
Fulton v. Enclarity, Inc.
Fulton’s Linden, Michigan dental practice filed a purported class action, alleging that it received a fax from Defendants that was an unsolicited advertisement under the Telephone Consumer Protection Act (TCPA), 47 U.S.C. 227, that failed to include the requisite opt-out provision. The district court dismissed, finding that the fax was not an advertisement under the TCPA. The Sixth Circuit reversed. Fulton plausibly alleged that the fax was an unsolicited advertisement by alleging that the fax served as a pretext to send Fulton additional marketing materials. The fax stated that it was a Fax Verification Request to update contact information for sending clinical summaries, prescription renewals, and other sensitive communications. The fax provided space for recipients either to validate or update contact information. It had a signature line and room for comments and included a phone number and a URL for a website of Frequently Asked Questions (FAQs). Fulton’s allegation that providing verified contact information paves the way for Defendants’ customers to “send additional marketing faxes to recipients” finds some support in the FAQs, which confirm that Defendants’ customers use the system to “invite [providers] to become part of a provider network” and “send important notifications,” among “other uses.” View "Fulton v. Enclarity, Inc." on Justia Law
Hanrahan v. Mohr
The 1993 Lucasville Prison Riot at the Southern Ohio Correctional Facility began when prisoners overpowered a guard and took his keys. Rioting prisoners ultimately took a dozen guards hostage and gained complete control of the prison’s L-block. The riot continued for 11 days; one guard and nine prisoners were murdered. Many were injured. Tens of millions of dollars’ worth of damage was done to the prison facility. Four prisoners were sentenced to death for their involvement in the riot and are classified as restricted population inmates, who “pose a direct threat to the safety of persons, including themselves, or an elevated, clear[,] and ongoing threat to the safe and secure operations of the facility. The Media Plaintiffs are professional journalists who unsuccessfully sought in-person, recorded interviews with the Prisoner Plaintiffs for the twentieth anniversary of the riot. The Prisoners and Media Plaintiffs filed suit under 42 U.S.C. 1983, alleging that the interview denials violated the First and Fourteenth Amendments because they were based on the interviews’ anticipated content. The Sixth Circuit affirmed the rejection of their claims after considering the “Turner factors” to determine that the prison regulation is reasonably related to legitimate penological interests and therefore constitutional. There is a rational connection between a policy prohibiting face-to-face interviews with Lucasville participants and the legitimate, neutral penological interest of prison security. The impact of accommodation of the right and the availability of ready alternatives also support the restrictions’ constitutionality. View "Hanrahan v. Mohr" on Justia Law
Nwanguma v. Trump
During a campaign rally at Louisville’s Kentucky International Convention Center, then-candidate Trump spoke for 35 minutes. Plaintiffs attended the rally with the intention of peacefully protesting. Protesters’ actions during Trump’s video-recorded address precipitated directions from Trump on five different occasions to “get ’em out of here.” Members of the audience assaulted, pushed and shoved plaintiffs. Plaintiff Brousseau was punched in the stomach. Defendants Heimbach and Bamberger participated in the assaults. Plaintiffs sued Trump, the campaign, Heimbach, Bamberger, and an unknown woman who punched Brousseau, for battery, assault, incitement to riot, negligence, gross negligence and recklessness. The district court dismissed claims against the Trump defendants alleging they were vicariously liable for the actions of Heimbach, Bamberger and the unknown woman, and dismissed a negligent-speech theory as “incompatible with the First Amendment” but refused to dismiss the incitement-to-riot claims. On interlocutory appeal, the Sixth Circuit found that the claim should be dismissed. Plaintiffs have not stated a valid claim under Kentucky law, given the elements of “incitement to riot.” Trump’s speech enjoys First Amendment protection because he did not specifically advocate imminent lawless action. Trump’s “get ’em out of here” statement, closely followed by, “Don’t hurt ’em,” cannot be interpreted as advocating a riot or the use of any violence. View "Nwanguma v. Trump" on Justia Law
Parchman v. SLM Corp.
Defendants service student loans. Parchman, individually and on behalf of others similarly situated, filed suit, alleging violations of the Telephone Consumer Protection Act (TCPA), 47 U.S.C. 227, which prohibits a party from making a call “using any automatic telephone dialing system or an artificial or prerecorded voice,” absent an emergency or consent. Plaintiffs alleged that Defendants “negligently, knowingly and/or willfully contact[ed] Plaintiffs on Plaintiffs’ cellular telephones without their prior express consent and repeatedly contacted plaintiff Parchman, even though he never gave them his cell phone number, never owed any debt to any Defendant, and told them to stop calling. Plaintiffs alleged that, although plaintiff Carlin took out a student loan in 2012, Defendants repeatedly contacted her, even after she demanded in writing that they stop calling her, in October 2014. Defendant NSI successfully moved to sever and dismiss Carlin’s claims because the calls involved different companies and their respective calling practices. Plaintiffs unsuccessfully moved to amend the complaint after Parchman died to substitute Parchman’s daughter. Defendants argued that the requisite elements of adequacy of class counsel and adequacy of class representatives were not met. The Sixth Circuit reversed in part, holding that a TCPA claim does survive death, but affirmed with respect to Carlin’s claims. View "Parchman v. SLM Corp." on Justia Law
Health One Medical Center v. Bristol-Myers Squibb Co.
Mohawk, a seller of prescription drugs sent junk faxes to medical providers, advertising the seller’s prices on Bristol-Myers and Pfizer drugs. A recipient filed a putative class-action lawsuit under the Telephone Consumer Protection Act, which makes it unlawful “to send . . . an unsolicited advertisement” to a fax machine, 47 U.S.C. 227(b)(1)(C). Plaintiff first asserted claims only against Mohawk, which never answered the complaint. The district court entered a default judgment. Plaintiff then amended its complaint to assert claims against Bristol and Pfizer, arguing that they had “sent” the unsolicited faxes simply because the faxes mentioned their drugs. The Sixth Circuit affirmed the dismissal of the complaint. To be liable, a defendant must “use” a fax machine or other device “to send . . . an unsolicited advertisement” to another fax machine. Bristol and Pfizer neither caused the subject faxes to be conveyed nor dispatched them in any way; only Mohawk did those things. Bristol and Pfizer, therefore, did not “send” the faxes and thus have no liability for them. View "Health One Medical Center v. Bristol-Myers Squibb Co." on Justia Law
Superior Communications v. City of Riverview
Superior, a nonprofit corporation, operates 21 Michigan radio broadcast stations. The City of Riverview owns a 320-foot broadcast tower. With an FCC permit to operate a low-powered FM radio broadcast station, Superior contracted to operate broadcasting equipment on the city-owned tower. Superior installed a single-bay antenna at 300 feet and a transmitter in the equipment shelter. The agreement limited modifications to Superior’s equipment; upgrades required the city’s prior approval. Without the city’s knowledge, Superior obtained a modification of its FCC permit to allow a significant increase in broadcast power. In response to Superior’s request, the city engaged a consultant, who reported that the proposed four-bay antenna would cause Superior’s equipment to occupy 30 feet of tower space instead of its current three feet of space; would expose individuals around the tower to unsafe levels of radiofrequency electromagnetic radiation; and might create radio interference with other tower tenants. The Sixth Circuit affirmed summary judgment in favor of the city, rejecting arguments under the Telecommunications Act, 47 U.S.C. 151. The Agreement unambiguously granted the city the right to refuse Superior’s requested upgrade, which the city properly exercised. The city did not enact a “regulation” within the meaning of the Act but acted in its proprietary capacity and had a rational basis for its actions, so that Superior’s constitutional claims failed. View "Superior Communications v. City of Riverview" on Justia Law
Lexington H-L Services, Inc. v. Lexington-Fayette Urban County Government
Herald-Leader sells and distributes Community News, a weekly four- to six-page non-subscription publication, containing local news and advertising for Lexington, Kentucky and the surrounding area. Herald-Leader delivers Community News free of charge to more than 100,000 households each week, including by driveway delivery. Lexington adopted an ordinance that permits the delivery of “unsolicited written materials” only: to a porch, nearest the front door; securely attached to the front door; through a mail slot; between an exterior front door and an interior front door; in a distribution box on or adjacent to the premises, if permitted; or personally with the owner, occupant, or lessee. Before the law went into effect, Herald-Leader obtained a preliminary injunction to prevent its enforcement. The Sixth Circuit reversed and vacated the injunction, finding that Herald-Leader had not shown a likelihood of success on the merits of its First Amendment claim. The ordinance is narrowly tailored to further the city’s goals of reducing visual blight and reducing litter. The court rejected an overbreadth argument and stated that, in determining whether the law leaves adequate alternative methods of communication, the district court failed to balance expense against the harms that can arise when cheap and efficient methods of circulating written materials are abused. View "Lexington H-L Services, Inc. v. Lexington-Fayette Urban County Government" on Justia Law
Signature Management Team, LLC v. Doe
Team sells materials to help individuals profit in multi-level marketing businesses. Doe anonymously runs the “Amthrax” blog, in which he criticizes multi-level marketing companies and Team. Doe posted a hyperlink to a downloadable copy of the entirety of “The Team Builder’s Textbook,” copyrighted by Team. After Team served the blog’s host with a take-down notice under the Digital Millennium Copyright Act, 17 U.S.C. 512, Doe removed the hyperlink. Team filed suit, seeking only injunctive relief and that the court identify Doe. Doe asserted fair-use and copyright-misuse defenses and that he has a First Amendment right to speak anonymously. The court ultimately entered summary judgment for Team, found that unmasking Doe “was unnecessary to ensure that defendant would not engage in future infringement” and that “defendant has already declared ... that he has complied with the proposed injunctive relief” by destroying the copies of the Textbook in his possession such that “no further injunctive relief is necessary.” The Sixth Circuit remanded with respect to unmasking Doe; the district court failed to recognize the presumption in favor of open judicial records. View "Signature Management Team, LLC v. Doe" on Justia Law
Montgomery County. v. Federal Communications Commission
Over the last 10 years, the Federal Communications Commission has established rules governing how local governments may regulate cable companies. In 2007, the FCC barred franchising authorities from imposing unreasonable demands on franchise applicants or requiring new cable operators to provide non-cable services. The FCC also read narrowly the phrase “requirements or charges incidental to the awarding . . . of [a] franchise” (47 U.S.C. 542(g)(2)(D)), with the effect of limiting the monetary fees that local franchising authorities can collect. A petition for review was denied. Meanwhile, the FCC sought comment on expanding the application of the First Order’s rules—which applied only to new applicants for a cable franchise—to incumbent providers. In its Second Order, the FCC expanded the First Order’s application as proposed. Local franchising authorities again objected. The FCC finally rejected objections after seven years; the FCC clarified that the Second Order applied to only local (rather than state) franchising processes and published a “Supplemental Final Regulatory Flexibility Act Analysis.” Local governments sought review, arguing that the FCC misinterpreted the Communications Act, and failed to explain the bases for its decisions. The Sixth Circuit granted the petition in part; while “franchise fee” (section 542(g)(1)) can include noncash exactions, the orders were arbitrary to the extent they treat “in-kind” cable-related exactions as “franchise fees” under section 541(g)(1). The FCC’s orders offer no valid basis for its application of the mixed-use rule to bar local franchising authorities from regulating the provision of non-telecommunications services by incumbent cable providers. View "Montgomery County. v. Federal Communications Commission" on Justia Law