Articles Posted in Communications Law

by
A liability insurance policy that unequivocally and broadly excludes coverage for invasion of privacy claims also excludes coverage for Telephone Consumer Protection Act (TCPA) claims. After Federal denied insurance coverage and declined to defend the Lakers in an underlying suit for invasion of privacy, the Lakers filed suit against Federal for breach of contract and tortious breach of the implied covenant of good faith and fair dealing. The Ninth Circuit affirmed the district court's dismissal of the suit under Federal Rule of Civil Procedure 12(b)(6). The panel held that a TCPA claim was inherently an invasion of privacy claim and thus Federal correctly concluded that the underlying TCPA claim fell under the insurance policy's broad exclusionary clause. In this case, Federal did not breach the policy, or the implied covenant of good faith and fair dealing, under any cognizable legal theory, when it declined to defend against or cover the underlying complaint. View "LA Lakers v. Federal Insurance Co." on Justia Law

by
Plaintiffs filed suit against Royal under the Telephone Consumer Protection Act (TCPA), 47 U.S.C. 227, seeking to hold Royal vicariously liable for several telephone calls made by telemarketers employed by AAAP. The Ninth Circuit applied the ten non-exhaustive factors set forth in the Restatement (Second) of Agency 220(2) (1958), and found that AAAP's telemarketers were acting as independent contractors rather than as Royal's agents. Therefore, the court held that Royal was not vicariously liable for the telephone calls and the district court properly granted summary judgment in favor of Royal. View "Jones v. Royal Administration Services" on Justia Law

by
A City of Berkeley ordinance required cell phone retailers to inform prospective cell phone purchasers that carrying a cell phone in certain ways may cause them to exceed Federal Communications Commission guidelines for exposure to radio-frequency radiation. CTIA, a trade association, challenged the ordinance on two grounds: (1) the ordinance violated the First Amendment; and (2) the ordinance was preempted. CTIA requested a preliminary injunction staying enforcement of the ordinance. The district court denied CTIA’s request, and CTIA filed an interlocutory appeal. Finding no reversible error, the Ninth Circuit affirmed. View "CTIA Witeless Ass'n v. City of Berkeley" on Justia Law

by
Plaintiff filed a putative class action alleging that defendants sent unauthorized text messages in violation of the Telephone Consumer Protection Act of 1991 (TCPA), 47 U.S.C. 227; California Business and Professions Code 17538.41; and California Business and Professions Code 17200. The district court granted summary judgment to defendants. As a preliminary matter, the court concluded that plaintiff has Article III standing under Spokeo, Inc. v. Robins because plaintiff established a concrete injury-in-fact. On the merits, the court concluded that the FCC has established no rule that a consumer who gives a phone number to a company has consented to be contacted for any reason. Instead, FCC orders and rulings show that the transactional context matters in determining the scope of a consumer’s consent to contact. In this case, the court held that as a matter of law plaintiff gave prior express consent to receive defendants’ text messages where he gave his cell phone number for the purpose of a gym membership contract. Revocation of consent must be clearly made and express a desire not to be called or texted. The court joined its sister circuits and agreed that the TCPA permits consumers to revoke their prior express consent to be contacted by telephone autodialing systems. Here, the court held that, although consumers may revoke their prior express consent, plaintiff's gym cancellation was not effective in doing so here. Finally, the court concluded that plaintiff lacked standing to bring his claim under the California Business and Professions Code. Accordingly, the court affirmed the judgment. View "Van Patten v. Vertical Fitness Group" on Justia Law

by
Dr. Lawrence P. Rudolph filed suit against SCI after various SCI members accused him of official misconduct, stripped him of his awards, and kicked him out of the association. Rudolph surreptitiously recorded a conversation with his friend John Whipple, SCI's president, and posted it on YouTube to exonerate himself. Whipple and SCI filed numerous claims against Rudolph, including statutory invasion of privacy, negligence per se, and common law invasion of privacy. The district court granted Rudolph’s motion to strike under California’s anti-SLAPP statute, Cal. Civ. Proc. Code 425.16, as to four claims, but denied relief as to three claims. Rudolph appeals. The court concluded that the district court correctly denied Rudolph's motion as to the claims for violation of California Penal Code section 632, negligence per se, and common law invasion of privacy. In this case, although Rudolph can show that those claims arise from activity he took in furtherance of his right to free speech, plaintiffs can show a reasonable probability of prevailing on each of the challenged claims. Accordingly, the court affirmed the judgment; denied Rudolph's corresponding request for an additional attorney fee award; and remanded for further proceedings. View "Safari Club International v. Rudolph" on Justia Law

by
Plaintiff, owner of a locksmith business, filed suit against Yelp, alleging that Yelp is responsible for causing a review from another site to appear on its page, providing a star-rating function that transforms user reviews into Yelp’s own content, and “caus[ing] [the statements] to appear” as a promotion on Google’s search engine. Section 230 of the Communications Decency Act (CDA), 47 U.S.C. 230(c), “immunizes providers of interactive computer services against liability arising from content created by third parties.” In this case, the threadbare allegations of fabrication of statements are implausible on their face and are insufficient to avoid immunity under the CDA. The court also concluded that Yelp’s rating system, which is based on rating inputs from third parties and which reduces this information into a single, aggregate metric is user-generated data. Nor do plaintiff's arguments that Yelp can be held liable for “republishing” the same content as advertisements or promotions on Google survive close scrutiny. The court concluded that, just as Yelp is immune from liability under the CDA for posting user-generated content on its own website, Yelp is not liable for disseminating the same content in essentially the same format to a search engine, as this action does not change the origin of the third-party content. The court noted that proliferation and dissemination of content does not equal creation or development of content. View "Kimzey v. Yelp!" on Justia Law

by
The FTC filed suit against AT&T under section 5 of the Federal Trade Commission Act (FTA), 15 U.S.C. 45(a), taking issue with the adequacy of AT&T’s disclosures regarding its data throttling program. The district court denied AT&T's motion to dismiss and rejected it's view of the common carrier exemption. The court concluded, however, that the common carrier exemption in section 5 of the FTC Act carves out a group of entities based on their status as common carriers. Those entities are not covered by section 5 even as to non-common carrier activities. Because AT&T was a common carrier, it cannot be liable for the violations alleged by the FTC. Accordingly, the court reversed and remanded. View "FTC v. AT&T Mobility" on Justia Law

by
Plaintiff Leah Manzari, famous under her professional name, Danni Ashe, for her groundbreaking work in monetizing online pornography, filed a defamation suit claiming that the Daily Mail Online, an online news outlet, used a photograph of her to convey the defamatory impression that she had tested positive for HIV. The Daily Mail filed an interlocutory appeal under California’s anti-SLAPP statute, Cal. Civ. Proc. Code 425.15. The court agreed with the district court that, at this stage in the litigation, Manzari has presented sufficient evidence to move forward with her claim that the Daily Mail Online employees acted with actual malice when they published the article implying that Manzari was an HIV-positive sex worker. Accordingly, the court affirmed the district court's denial of the Daily Mail's motion to strike the complaint. View "Manzari v. Associated Newspapers" on Justia Law

by
North County filed suit against Qwest, a rival local exchange carrier, and, in their official capacities, the Arizona Commission and the Oregon Commission. The commissions are state agencies whose responsibilities include regulating contracts between such carriers. The Telecommunications Act of 1996, Pub. L. No. 104-104, 110 Stat. 56, classifies local exchange carriers into two categories: incumbent local exchange carriers (ILECs), and competitive local exchange carriers (CLECs). Qwest is an ILEC, and North County is a CLEC. The parties entered into interconnection agreements (ICAs) in 1997. When subsequent negotiations for extension agreements were not successful, Qwest filed suit to compel arbitration. The district court granted summary judgment to Qwest. Given (1) the language of the 1997 ICAs’ negotiation clause and the way it was interpreted by both state Commissions below; (2) North County’s conduct in the time leading up to the arbitration proceedings; and (3) North County’s lack of any rebuttal argument before this court; the court is satisfied that the state Commissions had authority to arbitrate the 2011 ICAs because the 1997 ICAs themselves gave Qwest the power to invoke the negotiation-and-arbitration mechanism set forth in 47 U.S.C. 252. The court examined six specific provisions of the 2011 ICAs and rejected North County's challenges. View "NCCC v. Qwest" on Justia Law

Posted in: Communications Law

by
Plaintiff filed suit on behalf of himself and a putative class, alleging claims under the Telephone Consumer Protection Act (TCPA), 42 U.S.C. 227(b)(1)(A)(iii), that Campbell-Ewald instructed or allowed a third-party vendor to send unsolicited text messages on behalf of the Navy, with whom Campbell-Ewald had a marketing contract. The district court granted summary judgment to Campbell-Ewald under the doctrine of derivative sovereign immunity. The court rejected Campbell-Ewald's claim that the personal and putative class claims were mooted by petitioner's refusal to accept the settlement offer; Campbell-Ewald's constitutional claims were unavailing where the company relied upon a flawed application of First Amendment principles; the TCPA imposes vicarious liability where an agency relationship, as defined by federal common law, is established between the defendant and a third-party caller; and the application of the doctrine of derivative sovereign immunity is inapplicable in this case. Because Campbell-Ewald failed to demonstrate that it was entitled to judgment as a matter of law, the court vacated and remanded for further proceedings.View "Gomez v. Campbell-Ewald Co." on Justia Law