Justia Communications Law Opinion Summaries

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

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

In 2010, Besse, a pharmaceutical distributor, sent a one-page fax advertising the drug Prolia to 53,502 physicians. Only 40,343 of these faxes were successfully transmitted. Sandusky, a chiropractic clinic that employed one of the physicians, claims to have received this “junk fax,” and, three years later, filed a lawsuit under the Telephone Consumer Protection Act, 47 U.S.C. 227. The district court denied Sandusky’s motion for class certification. It held that Sandusky’s proposed class failed to satisfy Rule 23(b)(3) because two individualized issues—class member identity and consent—were central to the lawsuit and thus prevented “questions of law or fact common to class members [from] predominat[ing].” In the absence of fax logs, no classwide means existed by which to identify the 75% of individuals who received the Prolia fax; “each potential class member would have to submit an affidavit certifying receipt of the Prolia fax.” The Sixth Circuit affirmed, noting that Besse presented actual evidence of consent to the district court, which required the need for individualized inquiries in order to distinguish between solicited and unsolicited Prolia faxes. The court stated that it was unaware of any court that ever mandated certification of a TCPA class where fax logs did not exist. View "Sandusky Wellness Center, LLC v. ASD Specialty Healthcare, Inc." on Justia Law