Articles Posted in Communications Law

by
The Telephone Consumer Protection Act (TCPA), 47 U.S.C. 227 et seq., permits a consumer to partially revoke her consent to be called by means of an automatic telephone dialing system. The Eleventh Circuit thought it logical that a consumer's power under the TCPA to completely withdraw consent and thereby stop all future automated calls encompasses the power to partially withdraw consent and stop calls during certain times. In this case, the court held that summary judgment was inappropriate because a reasonable jury could find that plaintiff partially revoked her consent to be called in "the morning" and "during the workday" on the October 13 phone call with a Comenity employee. Accordingly, the court reversed and remanded. View "Schweitzer v. Comenity Bank" on Justia Law

by
At issue was whether an order form faxed to a doctor by a company that supplies a medical product purchased by that doctor's patient constitutes an "unsolicited advertisement" within the meaning of the Telephone Consumer Protection Act, 47 U.S.C. 227(a)(5). The Eleventh Circuit affirmed the dismissal of the complaint, agreeing with the district court that faxes were not "unsolicited advertisements." The court held that the faxes in this case did not promote the sale of Arriva products and thus they were not unsolicited advertisements. In this case, each fax related to a specific order already placed by a patient of the clinic and requested only that the doctor of the patient fill out an order form to facilitate a purchase made by the patient. View "The Florence Endocrine Clinic v. Arriva Medical" on Justia Law

by
A jury concluded that defendant violated the Store Communications Act (SCA), 18 U.S.C. 2701-2712, when, in accordance with her lawyer’s advice, she viewed her ex-husband's (plaintiff) emails in an effort to prove to the divorce court that plaintiff was lying about and hiding assets. The jury did not award damages to plaintiff. Plaintiff appealed to the district court and the district court awarded a more modest amount than the requested $450,000 and refused to award attorney's fees. Plaintiff appealed. The court concluded that it has no authority to award actual or punitive damages when the jury has rejected the entry of such an award. Further, under the SCA, the court does not have the authority to award statutory damages in the absence of actual damages. Accordingly, the court affirmed the district court's determination not to award punitive damages; vacated the award of statutory damages in the absence of actual damages; and affirmed the denial of attorney's fees. View "Vista Marketing, LLC v. Burkett" on Justia Law

Posted in: Communications Law

by
Key TV, a local over-the-air broadcaster, filed suit against Comcast, owner and operator of a cable television system serving the same area, alleging that it was unlawfully overcharged for the right to broadcast its content over Comcast's cable system and that Comcast illegally discriminated against it by not carrying the station in high definition or including it on Comcast's "hospitality tier." Key TV also filed two state law claims. The district court stayed the entire case under the primary jurisdiction doctrine pending resolution of Key TV's federal law claims by the FCC. The court concluded that it lacked appellate jurisdiction to entertain this interlocutory appeal where this stay does not end the litigation on the merits and it does not leave the district court without anything to do but execute the judgment. The court further concluded that the collateral order doctrine does not apply to save appellate jurisdiction. Accordingly, the court dismissed the appeal. View "Beach TV Cable Co. v. Comcast of Florida/Georgia, LLC" on Justia Law

by
Plaintiff filed a putative class action against DCI, alleging that DCI violated the Telephone Communications Practice Act, 47 U.S.C. 227, by sending plaintiff two text messages. The court concluded that plaintiff gave his prior express consent to be contacted by voluntarily providing his cell phone number to DCI. Accordingly, the court affirmed the district court's dismissal of plaintiff's claims because plaintiff’s complaint alleges, on its face, facts that demonstrate prior express consent. View "Murphy v. DCI Biologicals Orlando, LLC" on Justia Law

by
Plaintiff filed suit against defendant, a Florida dental practice, under the Telephone Consumer Protection Act of 1991 (TCPA), 47 U.S.C. 227(b)(3) and common law conversion, after receiving an unsolicited one-page fax advertisement from defendant. On interlocutory appeal, the district court entered a final judgment for defendant. The court concluded that this case is justiciable and that plaintiff has Article III standing; on the merits, because In re DISH Network, LLC did not address the TCPA's junk-fax-ban provision, the district court's reliance on it, to hold that a plaintiff must establish vicarious liability in order to recover under the statute when a third party sends unsolicited fax advertisements on behalf of the advertiser, was misplaced; because the FCC's construction of the statute is a reasonable interpretation of Congressional intent under the TCPA and does not conflict with the statute's underlying legislative history, the court must defer to the Agency's construction of the statute; in this case, the record contains sufficient evidence for a jury to find that the fax at issue was sent on behalf of defendant; and therefore, the court reversed the district court's judgment on the TCPA claim and remanded for further proceedings. The court also concluded that the district court erred in granting summary judgment to defendant on the conversion claim. The court reversed and remanded as to that claim. View "Palm Beach Golf Center-Boca, Inc. v. John G. Sarris, D.D.S., P.A." on Justia Law

Posted in: Communications Law

by
Plaintiff filed suit under the Telephone Consumer Protection Act of 1991 (TCPA), 47 U.S.C. 227, against a hospital-based radiology provider and its debt collection agent for making autodialed or prerecorded calls. The collection bureau, Gulf Coast, contended that the calls fell within a statutory exception for "prior express consent," as interpreted in a 2008 declaratory ruling from the FCC. The district court concluded that the FCC's interpretation was inconsistent with the language of the TCPA and, regardless of the 2008 FCC Ruling, did not apply on the facts of this case. The court concluded, however, that the district court lacked the power to consider the validity of the 2008 FCC Ruling and erred in concluding that the FCC's interpretation did not control the disposition of the case. In these circumstances, plaintiff's claim falls squarely within the FCC order. Consequently, the TCPA exception for prior express consent entitled Gulf Coast to judgment as a matter of law. Accordingly, the court reversed the district court's grant of partial summary judgment to plaintiff and remanded with instructions. View "Mais v. Gulf Coast Collection Bureau" on Justia Law

by
Plaintiff, individually and on behalf of her minor child, filed suit alleging that Wells Fargo violated the Telephone Consumer Protection Act of 1991's (TCPA), 47 U.S.C. 227(b)(1)(A)(iii), prohibition on autodialing cell phones without the express consent of the called party. Wells Fargo had called the cell phone number used by the child to collect a debt from a former customer who had listed the phone number on a Wells Fargo account application. Wells Fargo was unaware that the cell phone number was no longer assigned to the former customer and the former customer never revoked his consent or requested that Wells Fargo cease calling the number. The court concluded that "called party," for purposes of section 227(b)(1)(A)(iii) means the subscriber to the cell phone service or user of the cell phone called. Accordingly, the court affirmed the district court's grant of partial summary judgment in plaintiff's favor. View "Breslow v. Wells Fargo Bank, N.A." on Justia Law

by
The City appealed the district court's order granting T-Mobile's motion for summary judgment and issuing an injunction on the basis that the City's denial of T-Mobile's requested cell phone tower permit violated the Telecommunications Act of 1996, 47 U.S.C. 322(c)(7)(B)(iii). The district court held that the City's short denial letter failed to satisfy the "in writing" requirement under the Act. Under the court's recent analysis in T-Mobile South, LLC v. City of Milton, the court concluded in this instance that the documents at issue collectively were enough to satisfy the writing requirement under the Act. Accordingly, the court reversed and remanded. View "T-Mobile South, LLC v. City of Roswell, GA" on Justia Law

by
This appeal concerned the City of Milton's decision to deny T-Mobile's applications for permits to build three cell phone towers. At issue was the writing requirement of the Telecommunications Act, 47 U.S.C. 332(c)(7)(B)(iii), which stated that "[a]ny decision by a State or local government or instrumentality thereof to deny a request to place, construct, or modify personal wireless services shall be in writing and supported by substantial evidence contained in a written record." The court concluded that T-Mobile had access to documents - including transcripts of the planning commission's hearings, letters the city sent to T-Mobile, and detailed minutes of the city council hearings- before its deadline for filing the lawsuit and collectively, these documents they were enough to satisfy the writing requirement of section 332(c)(7)(B)(iii). Accordingly, the court reversed the judgment of the district court and remanded for further proceedings. View "T-Mobile South, LLC v. City of Milton, Georgia" on Justia Law