Justia Communications Law Opinion Summaries

The Copyright Act of 1976 gives a copyright owner the “exclusive righ[t]” to “perform the copyrighted work publicly,” 17 U.S.C. 106(4), including the right to “transmit or otherwise communicate ... the [copyrighted] work ... to the public, by means of any device or process, whether the members of the public capable of receiving the performance ... receive it in the same place or in separate places and at the same time or at different times,” section 101. Aereo sells a service that allows subscribers to watch television programs over the Internet. Aereo’s server tunes an antenna, which is dedicated to the use of one subscriber, to the broadcast carrying the selected show. A transcoder translates the signals received by an antenna into data that can be transmitted over the Internet. A server saves the data in a subscriber-specific folder and streams the show to the subscriber, a few seconds behind the over-the-air broadcast. The owners of program copyrights unsuccessfully sought a preliminary injunction, arguing that Aereo was infringing their right to “perform” their copyrighted works “publicly.” The Second Circuit affirmed. The Supreme Court reversed and remanded, holding that Aereo performs the works within the meaning of section 101 and does not merely supply equipment that allows others to do so. The Court noted that the Act was amended in 1976 to make the law applicable to community antenna television (CATV) providers by clarifying that an entity that acts like a CATV system “performs,” even when it only enhances viewers’ ability to receive broadcast television signals. Aereo’s activities are similar; it sells a service that allows subscribers to watch television programs, many of which are copyrighted, virtually as they are being broadcast. That Aereo’s system remains inert until a subscriber indicates that she wants to watch a program is not critical. Aereo transmits a performance whenever its subscribers watch a program. The Court stated that when an entity communicates the same contemporaneously perceptible images and sounds to multiple people, it “transmit[s] ... a performance” to them, regardless of the number of discrete communications it makes and whether it makes an individual personal copy for each viewer. Aero subscribers are “the public” under the Act: a large number of people, unrelated and unknown to each other. View "Am. Broad. Cos. v. Aereo, Inc." on Justia Law

A former congressman filed a complaint with the Ohio Elections Commission alleging that SBA violated an Ohio law that criminalizes some false statements made during a political campaign. SBA had stated that his vote for the Patient Protection and Affordable Care Act was a vote in favor of “taxpayer funded abortion.” After he lost his re-election bid the complaint was dismissed. SBA pursued a separate challenge on First Amendment grounds. COAST also challenged the law, arguing that it had planned to disseminate a similar message but refrained because of the suit against SBA. The district court consolidated the suits and dismissed them as nonjusticiable, concluding that neither suit presented a sufficiently concrete injury to establish standing or ripeness. The Sixth Circuit affirmed. A unanimous Supreme Court reversed and remanded, finding that the plaintiffs alleged a sufficiently imminent injury under Article III. An “injury in fact” must be “concrete and particularized” and “actual or imminent, not conjectural or hypothetical.” Challenging a law before enforcement requires alleging “an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution.” The plaintiffs alleged a credible threat of enforcement. Their intended future conduct is arguably proscribed by the statute. The statute sweeps broadly; the Elections Commission already found probable cause to believe that SBA violated the law when it made statements similar to those they plan to make in the future. SBA’s insistence that its previous statements were true did not preclude finding probable cause. The threat of future enforcement is substantial. There is a history of past enforcement; a complaint may be filed by “any person,” not just a prosecutor or agency. Commission proceedings impose a burden on electoral speech. The target of a complaint may be forced to divert significant time and resources in the crucial days before an election. Those proceedings are backed by the additional threat of criminal prosecution. The Court found the “prudential factors” of fitness and hardship “easily satisfied.” View "Susan B. Anthony List v. Driehaus" on Justia Law

The Federal Election Campaign Act of 1971 and the Bipartisan Campaign Reform Act of 2002, impose base limits, restricting how much money a donor may contribute to a particular candidate or committee, and aggregate limits, restricting how much money a donor may contribute in total to all candidates or committees, 2 U.S.C. 441a. In the 2011–2012 election cycle, McCutcheon contributed to 16 federal candidates, complying with all base limits. He alleges that the aggregate limits prevented him from contributing to additional candidates and political committees and that he wishes to make similar contributions in the future. McCutcheon and the Republican National Committee challenged the aggregate limits under the First Amendment. The district court dismissed. The Supreme Court reversed, with five justices concluding that those limits are invalid. Regardless whether strict scrutiny or the “closely drawn” test applies, the analysis depends on the fit between stated governmental objectives and the means selected to achieve the objectives. The aggregate limits fail even under the “closely drawn” test. Contributing to a candidate is an exercise of the right to participate in the electoral process through political expression and political association. A restriction on how many candidates and committees an individual may support is not a “modest restraint.” To require a person to contribute at lower levels because he wants to support more candidates or causes penalizes that individual for “robustly exercis[ing]” his First Amendment rights. The proper focus is on an individual’s right to engage in political speech, not a collective conception of the public good. The aggregate limits do not further the permissible governmental interest in preventing quid pro quo corruption or its appearance. The justices noted the line between quid pro quo corruption and general influence and that the Court must “err on the side of protecting political speech.” Given regulations already in effect, fear that an individual might make massive unearmarked contributions to entities likely to support particular candidate is speculative. Experience suggests that most contributions are retained and spent by their recipients; the government provided no reason to believe that candidates or committees would dramatically shift their priorities if aggregate limits were lifted. Multiple alternatives could serve the interest in preventing circumvention without “unnecessary abridgment” of First Amendment rights, such as targeted restrictions on transfers among candidates and committees, tighter earmarking rules, and disclosure. View "McCutcheon v. Fed. Election Comm’n" on Justia Law

Vandenberg Air Force Base is a designated a “closed base.” Civilians may not enter without express permission. The Air Force has granted an easement over areas of the Base, so that two public highways traverse the Base. One highway has an adjacent area designated for peaceful protests. The Base commander enacted rules to control the protest area and issued an advisory that anyone who fails to adhere to those policies may be barred from entering the Base. Apel was barred from the Base for trespass and vandalism, but continued to enter the protest area and was convicted of violating 18 U.S.C. 1382, prohibiting reentry of a “military... installation” after having been ordered not to do so “by any officer or person in command.” The district court rejected his defense that the section does not apply to the protest area. The Ninth Circuit reversed. The Supreme Court vacated and remanded. A “military ... installation” encompasses the commanding officer’s area of responsibility, including Vandenberg’s highways and protest area. Section1382 does not require exclusive possession and control. Although the highways and protest area are outside fenced areas on the Base, the entire Vandenberg property is under the administration of the Air Force. Although the Base commander has occasionally closed the highways to the public for security purposes or when conducting a military launch, section 1382 does not require base commanders to make continuous, uninterrupted use of a place within their jurisdiction, lest they lose authority to exclude certain individuals. View "United States v. Apel" on Justia Law

After Air Wisconsin stopped flying aircraft that Hoeper was certified to fly, Hoeper failed three attempts to gain new certification. Air Wisconsin gave him one final chance. He performed poorly during required training and responded angrily, tossing his headset, using profanity, and making accusations against the instructor. Airline officials discussed the outburst, Hoeper’s impending termination; the history of assaults by disgruntled employees; and the chance that Hoeper, a Federal Flight Deck Officer (FFDO), permitted “to carry a firearm while engaged in providing air transportation,” 49 U.S.C. 44921(f)(1) might be armed. An airline executive notified the TSA that Hoeper “was an FFDO who may be armed,” that the airline was “concerned about his mental stability and the whereabouts of his firearm,” and that an “[u]nstable pilot in [the] FFDO program was terminated today.” The TSA removed Hoeper (returning home from training) from his plane, searched him, and questioned him about the location of his gun. Hoeper sued for defamation. The Aviation and Transportation Security Act (ATSA), 49 U.S.C. 44941(a), provides airlines and employees immunity for reporting suspicious behavior except where such disclosure is “made with actual knowledge that the disclosure was false, inaccurate, or misleading” or “made with reckless disregard as to the truth or falsity of that disclosure.” The jury found for Hoeper. The Colorado Supreme Court affirmed. The Supreme Court reversed. ATSA immunity, patterned after the Times v. Sullivan “actual malice” standard, may not be denied to materially true statements, even if made recklessly; a falsehood cannot be material absent a substantial likelihood that a reasonable security officer would consider it important in determining a response. Any falsehoods in the statement to the TSA were not material. A reasonable TSA officer, knowing that Hoeper was an FFDO, upset about losing his job, would have wanted to investigate whether he was armed. While Hoeper had not actually been fired at that time, everyone knew that termination was imminent. It would be inconsistent with the ATSA’s text and purpose to expose Air Wisconsin to liability because the manager who placed the call could have chosen a slightly better phrase to articulate the airline’s concern. View "Air Wisconsin Airlines Corp. v. Hoeper" on Justia Law

Sprint, a national telecommunications company, declined to pay intercarrier access fees imposed by Windstream, an Iowa telecommunications carrier, for long distance Voice over Internet Protocol (VoIP) calls, concluding that the Telecommunications Act of 1996 (TCA) preempted intrastate regulation of VoIP traffic. Windstream threatened to block Sprint customer calls; Sprint sought an injunction from the Iowa Utilities Board (IUB). Windstream retracted its threat, and Sprint sought to withdraw its complaint. Concerned that the dispute would recur, IUB continued the proceedings, ruling that intrastate fees applied to VoIP calls. Sprint sought a declaration that the TCA preempted the IUB decision. Sprint also sought review in Iowa state court. Invoking Younger v. Harris, the district court abstained from adjudicating Sprint’s complaint in deference to the state-court proceeding. The Eighth Circuit affirmed, concluding that Younger abstention was required because the state-court review concerned Iowa’s important interest in regulating and enforcing state utility rates. The Supreme Court reversed. The case does not fall within any of the classes of exceptional cases for which Younger abstention is appropriate to avoid federal intrusion into ongoing state criminal prosecutions; interfering with pending “civil proceedings . . . uniquely in furtherance of the state courts’ ability to perform their judicial functions;” and certain civil enforcement proceedings. IUB’s proceeding was not criminal and did not touch on a state court’s ability to perform its judicial function. Nor is the IUB order an act of civil enforcement of the kind to which Younger has been extended; the proceeding is not “akin to a criminal prosecution,” nor was it initiated by “the State in its sovereign capacity,” to sanction a wrongful act. The court rejected an argument that once Sprint withdrew its complaint the proceedings became, essentially, a civil enforcement action. IUB’s authority was invoked to settle a civil dispute between private parties. View "Sprint Commc'ns, Inc. v. Jacobs" on Justia Law

The U.S. Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003, 22 U.S.C. 7601, authorizes appropriations to fund nongovernmental efforts to combat HIV/AIDS worldwide, with conditions that: no funds “may be used to promote or advocate the legalization or practice of prostitution” and no funds may be used by an organization “that does not have a policy explicitly opposing prostitution” (the Policy Requirement). To enforce the Policy Requirement, the Department of Health and Human Services and the U.S. Agency for International Development require funding recipients to agree that they oppose prostitution. Funding recipients, wishing to remain neutral on prostitution, sought a declaratory judgment that the Policy Requirement violates their First Amendment rights. The district court issued a preliminary injunction, barring the government from cutting off funding during the litigation. The Second Circuit and Supreme Court affirmed. The First Amendment “prohibits the government from telling people what they must say.” The Spending Clause grants Congress broad discretion to fund private programs for the general welfare and to limit the use of funds to ensure they are used in the manner intended. There is a distinction between conditions that define the limits of the spending program and specify the activities Congress wants to subsidize and conditions that seek to leverage funding to regulate speech outside the contours of the federal program itself. The Act’s other condition, prohibiting use of funds “to promote or advocate the legalization or practice of prostitution or sex trafficking,” ensures that federal funds will not be used for prohibited purposes. The Policy Requirement goes further and, by its very nature, affects protected conduct outside the scope of the federally funded program. The Requirement goes beyond preventing recipients from using private funds in a way that could undermine the federal program and requires them to pledge allegiance to government policy. View "Agency for Int’l Dev. v. Alliance for Open Soc'y Int’l, Inc." on Justia Law

Using FOIA requests directed to the South Carolina DMV, attorneys obtained names and addresses, then sent letters to more than 34,000 individuals, seeking clients for a lawsuit against car dealerships for violation of a state law. The letters were headed “ADVERTISING MATERIAL,” explained the lawsuit, and asked recipients to return an enclosed card to participate in the case. Recipients sued the attorneys, alleging violation of the Driver’s Privacy Protection Act of 1994 (DPPA), 18 U.S.C. 2721(b)(4), by obtaining, disclosing, and using personal information from motor vehicle records for bulk solicitation without express consent. The district court dismissed, based on a DPPA exception permitting disclosure of personal information "for use in connection with any civil, criminal, administrative, or arbitral proceeding," including "investigation in anticipation of litigation." The Fourth Circuit affirmed. The Supreme Court vacated and remanded. An attorney’s solicitation of clients is not a permissible purpose under the (b)(4) litigation exception. DPPA’s purpose of protecting privacy in motor vehicle records would be substantially undermined by application of the (b)(4) exception to the general ban on disclosure of personal information and ban on release of highly restricted personal information in cases there is any connection between protected information and a potential legal dispute. The Court noted examples of permissible litigation uses: service of process, investigation in anticipation of litigation, and execution or enforcement of judgments and orders. All involve an attorney’s conduct as an officer of the court, not a commercial actor, seeking a business transaction. A contrary reading of (b)(4) could affect interpretation of the (b)(6) exception, which allows an insurer and certain others to obtain DMV information for use in connection with underwriting, and the (b)(10) exception, which permits disclosure and use of personal information in connection with operation of private tollroads. View "Maracich v. Spears" on Justia Law

The Communications Act of 1934 requires state or local governments to act on siting applications for wireless facilities “within a reasonable period of time after the request is duly filed.” 47 U.S.C. 332(c)(7)(B)(ii). The FCC issued a Declaratory Ruling concluding that the phrase “reasonable period of time” is presumptively (but rebuttably) 90 days to process an application to place a new antenna on an existing tower and 150 days to process all other applications. The cities of Arlington and San Antonio challenged the Ruling. The Fifth Circuit found the statute ambiguous and upheld the FCC’s determination that section 201(b)’s broad grant of regulatory authority empowered it to administer section 332(c)(7)(B). The Supreme Court affirmed. Courts must apply the Chevron framework to an agency’s interpretation of a statutory ambiguity that concerns the scope of the agency’s statutory authority (i.e., its jurisdiction). The Court rejected a contention that Chevron deference was not appropriate because the FCC asserted jurisdiction over matters of traditional state and local concern. The statute explicitly supplants state authority. There is no case in which a general conferral of rule-making or adjudicative authority has been held insufficient to support Chevron deference for an exercise of that authority within the agency’s substantive field. A general conferral of rule-making authority validates rules for all the matters the agency is charged with administering. It is sufficient that the preconditions to deference under Chevron are satisfied because Congress has unambiguously vested the FCC with general authority to administer the Communications Act through rule-making and adjudication, and the interpretation at issue was promulgated in the exercise of that authority. View "Arlington v. Fed. Commc'n Comm'n" on Justia Law

Comcast and its subsidiaries allegedly “cluster” cable television operations within a region by swapping their systems outside the region for competitor systems inside the region. Plaintiffs filed a class-action antitrust suit, claiming that Comcast’s strategy lessens competition and leads to supra-competitive prices. The district court required them to show that the antitrust impact of the violation could be proved at trial through evidence common to the class and that damages were measurable on a classwide basis through a “common methodology.” The court accepted only one of four proposed theories of antitrust impact: that Comcast’s actions lessened competition from “overbuilders,” i.e., companies that build competing networks in areas where an incumbent cable company already operates. It certified the class, finding that the damages from overbuilder deterrence could be calculated on a classwide basis, even though plaintiffs’ expert acknowledged that his regression model did not isolate damages resulting from any one of the theories. In affirming, the Third Circuit refused to consider Comcast’s argument that the model failed to attribute damages to overbuilder deterrence because doing so would require reaching the merits of claims at the class certification stage. The Supreme Court reversed: the class action was improperly certified under Rule 23(b)(3). The Third Circuit deviated from precedent in refusing to entertain arguments against a damages model that bore on the propriety of class certification. Under the proper standard for evaluating certification, plaintiffs’ model falls far short of establishing that damages can be measured classwide. The figure plaintiffs’ expert used was calculated assuming the validity of all four theories of antitrust impact initially advanced. Because the model cannot bridge the differences between supra-competitive prices in general and supra¬competitive prices attributable to overbuilder deterrence, Rule 23(b)(3) cannot authorize treating subscribers in the Philadelphia cluster as members of a single class. View "Comcast Corp. v. Behrend" on Justia Law