Justia U.S. 9th Circuit Court of Appeals Opinion Summaries

The Federal Communications Commission (“FCC”) has long monitored local telephone companies’ “access stimulation.” In 2011, the FCC issued rules to address this phenomenon, defining when carriers engage in access stimulation and restricting the rates that they could charge. After local carriers found loopholes in this regulatory system, the FCC revisited and updated these rules, issuing the Updating the Intercarrier Compensation Regime to Eliminate Access Arbitrage (“Access Arbitrage Order”), 34 FCC Rcd. 9035 (2019). Wide Voice, LLC (“Wide Voice”), rearranged its business model and call traffic path in coordination with closely related entities, HD Carrier and Free Conferencing. Wide Voice petitions for review of the FCC’s order, specifically arguing that the FCC unreasonably concluded that it violated Section 201(b) by restructuring its business operations to continue imposing charges that were otherwise prohibited.   The Ninth Circuit denied the petition for review. The panel held that the FCC properly exercised its authority under § 201(b) to hold Wide Voice liable for circumventing its newly adopted rule in the Access Arbitrage Order when the company devised a workaround. Contrary to Wide Voice’s assertions, the FCC need not establish new rules prohibiting the evasion of its existing rules to find a Section 201(b) violation. The panel rejected Wide Voice’s contention that it restructured its business to comply with, rather than evade, the FCC’s new rules. Finally, the panel rejected Wide Voice’s contention that even if the FCC was permitted to find its conduct “unjust and unreasonable,” it did not have fair notice that its practices were unlawful, and therefore the FCC violated its right to due process. View "WIDE VOICE, LLC V. FCC, ET AL" on Justia Law

The district court ruled that Sections 553 and 605 do not apply when a pirated program is transmitted via Internet streaming. The Ninth Circuit, however, concluded that Plaintiff, a middleman distributor of entertainment display rights, failed to meet its burden on summary judgment to provide evidence sufficient to demonstrate a genuine issue of material fact regarding the method of transmission of the program at issue. Accordingly, the panel declined to reach the merits and affirmed on that alternative ground. View "G AND G CLOSED CIRCUIT EVENTS V. ZIHAO LIU" on Justia Law

Riley’s Farm provides historical reenactments and hosts apple picking. In 2001-2017, schools within the District took field trips to Riley’s. In 2018, Riley used his personal Twitter account to comment on controversial topics. Parents complained; a local newspaper published an article about Riley and his postings. The District severed the business relationship. In a 42 U.S.C. 1983 suit alleging retaliation for protected speech, the district court granted the District defendants summary judgment.The Ninth Circuit reversed as to injunctive relief but affirmed as to damages. Riley made a prima facie case of retaliation; he engaged in expressive conduct, some of the District defendants took an adverse action that caused Riley to lose a valuable government benefit, and those defendants were motivated by Riley’s expressive conduct. There was sufficient evidence that Board members had the requisite mental state to be liable for damages. The defendants failed to establish that the District’s asserted interests in preventing disruption to their operations and curricular design because of parental complaints outweighed Riley’s free speech interests. Even assuming that the selection of a field trip venue was protected government speech, the pedagogical concerns underlying the government-speech doctrine did not apply because Riley was not speaking for the District. Nonetheless, the defendants were entitled to qualified immunity on the damages claim. There was no case directly on point that would have clearly established that the defendants’ reaction to parental complaints and media attention was unconstitutional. View "Riley’s American Heritage Farms v. Elsasser" on Justia Law

In 2018, the FCC stopped treating broadband internet services as “telecommunications services” subject to relatively comprehensive, common-carrier regulation under Title II of the Communications Act, and classified them under Title I as lightly regulated “information services,” with the result of terminating federal net neutrality rules. Trade associations sought an injunction to prevent the California Attorney General from enforcing SB-822, which essentially codified the rescinded federal net neutrality rules, limited to broadband internet services provided to California customers.The district court concluded there was no federal preemption. The Ninth Circuit affirmed the denial of a preliminary injunction against enforcement of the California law. The court cited a 2019 D.C. Circuit decision, upholding the FCC’s 2018 reclassification but striking an order preempting state net neutrality rules. The court rejected arguments that SB-822 nevertheless was preempted because it conflicted with the policy underlying the reclassification and with the Communications Act or because federal law occupies the field of interstate services. Only the invocation of federal regulatory authority can preempt state regulatory authority; by classifying broadband internet services as information services, the FCC no longer had the authority to regulate in the same manner that it did when these services were classified as telecommunications services. The FCC, therefore, could not preempt state action, like SB-822, that protects net neutrality. SB-822 did not conflict with the Communications Act, which only limits the FCC’s regulatory authority. The field preemption argument was foreclosed by case law. View "ACA Connects v. Bonta" on Justia Law

Spokane Public Library hosted a children’s event called “Drag Queen Story Hour.” Because the event proved controversial, police separated 150 protesters and 300 counterprotesters into separate zones near the library. Yaghtin arrived at the event wearing a press badge and identified himself as a member of the press. Yaghtin alleges he was assigned a police “detail” to accompany him through a crowd of counterprotesters out of concern that he was “fake press.” While walking through the counterprotest zone, Yaghtin began speaking with a counterprotester, who asked him whether he was the person that had advocated for the execution of gay people. Officer Doe interrupted the exchange, and escorted Yaghtin through the counterprotest zone. Affirming the dismissal of a suit under 42 U.S.C. 1983, the Ninth Circuit held that Doe was entitled to qualified immunity. The plaintiffs did not challenge the ordinance or permit scheme, nor the police department’s use of separate protest zones. No precedent would have alerted Doe that his enforcement would violate clearly established First Amendment law; it was not unreasonable for Doe to believe that it was lawful for him to examine the substance of Yaghtin’s speech to enforce the separate protest zone policy. The city cannot be held liable because nothing in the complaint plausibly alleged a policy, custom, or practice leading to any violation. Plaintiffs’ allegations amounted to only an “isolated or sporadic incident” that could not form the basis of liability under “Monell.” View "Saved Magazine v. Spokane Police Department’" on Justia Law

Herring launched the conservative One American News Network (OAN) in 2013. While employed by OAN, Rouz also wrote articles as a freelancer for Sputnik, a Russian state-financed news organization. Herring alleges that Rouz’s work for Sputnik “had no relation to his work for OAN.” In 2019, The Daily Beast published an article entitled “Trump’s New Favorite Channel Employs KremlinPaid Journalist,” asserting that “Kremlin propaganda sometimes sneaks into” Rouz’s OAN segments. On the day the article was published, Maddow, host of The Rachel Maddow Show on MSNBC, ran a segment entitled “Staffer on Trump-Favored Network Is on Propaganda Kremlin Payroll.” The segment ran three and a half minutes.Herring sued Maddow and others for defamation. Herring did not sue The Daily Beast or its reporter but focused on Maddow’s comment that OAN “really literally is paid Russian propaganda.” Maddow moved to strike the complaint, citing California’s anti-SLAPP (strategic lawsuit against public participation) law. The district court granted the motion. The Ninth Circuit affirmed. Maddow’s “statement is an opinion that cannot serve as the basis for a defamation claim” and Herring failed to show “a probability of succeeding on its defamation claims.” The challenged statement was an obvious exaggeration, cushioned within an undisputed news story; it could not reasonably be understood to imply an assertion of objective fact. View "Herring Networks, Inc. v, Maddow" on Justia Law

Loyhayem filed suit under the Telephone Consumer Protection Act (TCPA), 47 U.S.C. 227(b)(1)(A)–(B), which prohibits robocalls to cellphones except for emergency purposes or with the prior express consent of the called party. Loyhayem received a call to his cell phone that left a pre-recorded voicemail message: Hi, this is Don with Fraser Financial... I recently saw your industry experience and I wanted to let you know that we’re looking to partner with select advisors ... I thought you might be a fit.” Loyhayem characterized this call as a “job recruitment call,” and alleged that it was made using an automated telephone dialing system and an artificial or pre-recorded voice and that he did not expressly consent to calls from Fraser.The district court dismissed Loyhayem’s suit, holding that the TCPA and the implementing regulation do not prohibit job-recruitment robocalls. The court read the Act as prohibiting robocalls to cell phones only when the calls include an “advertisement” or constitute “telemarketing,” as those terms have been defined by the FCC. The Ninth Circuit reversed. The statute prohibits in plain terms “any call,” regardless of content, that is made to a cell phone using an automatic telephone dialing system or an artificial or pre-recorded voice. Loyhayem adequately alleged that the call he received was not made for emergency purposes and that he did not expressly consent to it. View "Loyhayem v. Fraser Financial & Insurance Services, Inc." on Justia Law

The Ninth Circuit granted in part and denied in part a petition for review challenging the FCC's order finding that a competitive local exchange carrier's tariffed rate was void ab initio because it violated the FCC's benchmarking rule by exceeding the established step-down rates.The panel held that the FCC did not err in concluding that Wide Voice's tariff violated the benchmarking rule by deviating from the established stepdown rates. In this case, the FCC's conclusion that Wide Voice's tariff was unlawful because it violated the benchmarking rule was neither arbitrary nor capricious However, the panel held that the FCC's determination that the tariff was void ab initio after being "deemed lawful" in accordance with the governing statute was arbitrary and capricious. The panel followed the lead of the D.C. Circuit in concluding that the FCC impermissibly disregarded the "deemed lawful" status of Wide Voice's tariffs in contravention of Congress' unambiguously expressed intent to provide a mechanism to achieve that "deemed lawful" status. Furthermore, the FCC elided its own prior ruling, as well as prior court rulings precluding retrospective remedies for "deemed lawful" rates later determined to be unreasonable. View "Wide Voice, LLC v. Federal Communications Commission" on Justia Law

The Beef Promotion and Research Act of 1985 imposes a $1 assessment, or “checkoff,” on each head of cattle sold in the U.S. to fund beef consumption promotional activities. The Secretary of Agriculture oversees the program. The Montana Beef Council and other qualified state beef councils (QSBCs), receive a portion of the checkoff assessments to fund promotional activities and may direct a portion of these funds to third parties for the production of advertisements and other promotional materials. R-CALF's members include cattle producers who object to their QSBCs’ advertising campaigns. In 2016, the Secretary entered into memoranda of understanding (MOUs) with QSBCs which granted the Secretary preapproval authority over promotions and allowed the Secretary to decertify noncompliant QSBCs, terminating their access to checkoff funds. The Secretary must preapprove all contracts to third parties and any resulting plans. QSBCs can make noncontractual transfers of checkoff funds to third parties for promotional materials which do not need to be pre-approved. Plaintiffs contend that the distribution of funds under these arrangements is an unconstitutional compelled subsidy of private speech.The Ninth Circuit affirmed summary judgment in favor of the federal defendants after holding that R-CALF had associational standing and direct standing to sue QSBCs. The speech generated by the third parties for promotional materials was government speech, exempt from First Amendment scrutiny. Given the breadth of the Secretary's authority, third-party speech not subject to pre-approval was effectively controlled by the government. View "Ranchers-Cattlemen Action Legal Fund United Stockgrowers of America v. Vilsack" on Justia Law

The Ninth Circuit reversed the district court's judgment dismissing an amended complaint against Snap based on immunity under the Communications Decency Act (CDA), 47 U.S.C. 230(c)(1). Plaintiffs, the surviving parents of two boys who died in a high-speed accident, alleged that Snap encouraged their sons to drive at dangerous speeds and caused the boys' deaths through its negligent design of its smartphone application Snapchat. Specifically, plaintiffs claimed that Snapchat allegedly knew or should have known, before the accident, that its users believed that a reward system existed and that the Speed Filter was therefore incentivizing young drivers to drive at dangerous speeds.The panel applied the Barnes factors and concluded that, because plaintiffs' claim neither treats Snap as a "publisher or speaker" nor relies on "information provided by another information content provider," Snap does not enjoy immunity from this suit under section 230(c)(1). In this case, Snap is being used for the predictable consequences of designing Snapchat in such a way that it allegedly encourages dangerous behavior, and the CDA does not shield Snap from liability for such claims. The panel declined to affirm the district court's decision on the alternative ground that plaintiffs have failed to plead adequately in their amended complaint the causation element of their negligent design claim. Accordingly, the panel remanded for further proceedings. View "Lemmon v. Snap, Inc." on Justia Law