Articles Posted in Communications Law

In 2017, New Jersey replaced its system of pretrial release, which had long relied on monetary bail, based on a finding that the system resulted in the release of defendants who could afford to pay for their release, even if they posed a substantial risk of flight or danger to others, and the detention of poorer defendants who presented minimal risk and were accused of less serious crimes. Following a constitutional amendment, the New Jersey Criminal Justice Reform Act, 3 N.J. Stat. 2A:162–15, created a new framework that prioritizes the use of non-monetary conditions of release over monetary bail. The Reform Act establishes a multi-step process the court must follow when deciding to release or detain an eligible defendant after considering multiple factors. Plaintiffs challenged the Act as a violation of the Eighth Amendment, the Due Process Clause, and the Fourth Amendment, seeking a preliminary injunction to prevent the state “from taking any actions to enforce statutory provisions [of the Act] . . . that allow imposition of severe restrictions on the pre-trial liberty of presumptively innocent criminal defendants without offering the option of monetary bail.” The Third Circuit affirmed the district court, finding that there is no federal constitutional right to deposit money or obtain a corporate surety bond to ensure a criminal defendant’s future appearance in court as an equal alternative to non-monetary conditions of pretrial release. View "Holland v. Rosen" on Justia Law

The Third Circuit affirmed the district court's grant of summary judgment to Yahoo in a putative class action alleging that Yahoo violated the Telephone Consumer Protection Act (TCPA) by sending plaintiff thousands of unsolicited text messages. In light of the D.C. Circuit's holding in ACA International v. FCC, the court interpreted the statutory definition of an autodialer as it did prior to the issuance of the 2015 Declaratory Ruling. Therefore, plaintiff could no longer rely on his argument that the Email SMS Service had the latent or potential capacity to function as autodialer. The court also held that plaintiff failed to provide evidence to show that the Email SMS Service had the present capacity to function as autodialer. View "Dominguez v. Yahoo, Inc." on Justia Law

In 2006, Randall hired Business to Business Solutions to fax unsolicited advertisements for his roofing company to thousands of fax numbers. The first transmissions were sent on March 29 after Randall’s office manager, Clemmer, with Miley’s (the company’s president and co-owner) handwritten approval, confirmed by fax the content, the quantity of faxes t, and the areas to be targeted. Randall received complaints and Clemmer contacted Solutions to have several fax numbers removed from the list. On March 31, Solutions sent a second wave of faxes, which prompted several recipients to ask that their fax numbers removed. Two days later came a third burst of transmissions; on May 15, Solutions sent a final “blast” of 12,000 faxes. City Select, on behalf of itself and a class of similarly-situated fax recipients, sued Randall and Miley under the Telephone Consumer Protection Act (TCPA), 47 U.S.C. 227. The Third Circuit affirmed a judgment finding Miley not liable, upholding a jury instruction that asked whether Miley had “direct, personal participation at a level of involvement that was ‘significant.’” View "City Select Auto Sales Inc. v. David Randall Associates Inc." on Justia Law

Creditsmarts operates an internet-based business that helps independent car dealers connect customers with lenders. BMW offers direct automotive financing to customers through “up2drive.” In 2012, BMW and Creditsmarts entered into agreements, under which BMW would offer up2drive loans to borrowers at participating dealerships through Creditsmarts. Creditsmarts subsequently used the services of a fax broadcaster to fax about 21,000 advertisements to dealerships. The advertisements identified BMW and stated, “UpToDrive is looking for your BUSINESS!!” A list of recipients was generated from Creditsmarts’s customer database. Neither Creditsmarts nor Westfax retained lists of recipients. Plaintiff received a fax and alleges that it had no preexisting business relationship with Creditsmarts or BMW and that the fax was unsolicited. Plaintiff brought suit under the Telephone Consumer Protection Act, 47 U.S.C. 227, asserting claims under FRCP 23 on behalf of a class defined as: All auto dealerships that were included in the Creditsmarts database on or before December 27, 2012, with fax numbers … who were sent” BMW faxes on specific dates. The Creditsmarts database was not preserved as of December 2012 but was preserved as of February 2014. The Third Circuit vacated the denial of class certification. Precedent does not categorically preclude affidavits from potential class members, combined with the Creditsmarts database, from satisfying the ascertainability standard. Because the database was not produced during discovery, plaintiff was denied the opportunity to demonstrate whether a reliable, administratively feasible method of ascertaining the class exists View "City Select Auto Sales Inc v. BMW Bank of North America Inc" on Justia Law

Susinno alleged that on July 28, 2015, she received an unsolicited call on her cell phone from a fitness company called Work Out World (WOW). Susinno did not answer the call, so WOW left a prerecorded promotional offer that lasted one minute on her voicemail. Susinno filed a complaint, claiming WOW’s phone call and message violated the Telephone Consumer Protection Act (TCPA) prohibition of prerecorded calls to cellular telephones, 47 U.S.C. 227(b)(1)(A)(iii). The district court dismissed, reasoning that a single solicitation was not “the type of case that Congress was trying to protect people against,” and Susinno’s receipt of the call and voicemail caused her no concrete injury. The Third Circuit reversed, finding that the TCPA provides a cause of action and that the injury was concrete. The TCPA addresses itself directly to single prerecorded calls from cell phones, and states that its prohibition acts “in the interest of [ ] privacy rights.” View "Susinno v. Work Out World Inc" on Justia Law

Geraci, part of a police watchdog group, attended an anti-fracking protest at the Philadelphia Convention Center, carrying her camera and a pink bandana that identified her as a legal observer. When the police acted to arrest a protestor, Geraci moved to record the arrest without interfering. An officer pinned Geraci against a pillar for a few minutes, preventing her from observing or recording the arrest. Fields, a Temple University sophomore, was on a public sidewalk where he observed officers across the street breaking up a party. He took a photograph. An officer ordered him to leave. Fields refused; the officer arrested him, confiscated and searched Fields’ phone, and opened several photos. The officer released Fields with a citation for “Obstructing Highway and Other Public Passages.” The charge was later withdrawn. Fields and Geraci brought 42 U.S.C. 1983 claims, alleging First Amendment retaliation. Although the Police Department’s official policies recognized their First Amendment right, the district court granted the defendants summary judgment on those claims, finding no evidence that plaintiffs’ “conduct may be construed as expression of a belief or criticism of police activity.” The Third Circuit reversed, noting that every circuit that has addressed the issue has found that the First Amendment protects the act of photographing or otherwise recording police officers conducting their official duties in public. View "Fields v. City of Philadelphia" on Justia Law

Wilkes-Barre Hospital’s radiology department x-rayed Daubert. His bill was $46. Radiology Associates forwarded his medical report and cell phone number to its billing company, MBMS. Daubert’s health-insurer contributed $21. Daubert did not pay the remaining $25. MBMS transferred his account to a debt collector, NRA, sharing Daubert’s cell number. NRA sent a collection letter. Daubert alleged that, visible through the envelope's window, were the sequence of letters and numbers NRA used to track Daubert’s collection account and a barcode that, when scanned by the appropriate reader, revealed that account number. NRA also called Daubert 69 times in 10 months, using a Predictive Dialer. Daubert sued, alleging violations of the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. 1692, asserting that the information visible through the envelope could have revealed his private information and of the Telephone Consumer Protection Act (TCPA), 47 U.S.C. 227. The Third Circuit affirmed summary judgment for Daubert on his TCPA claim and awarded $34,500 ($500 × 69 calls); no reasonable jury could find that Daubert expressly consented to receive calls from NRA. The court reversed the rejection of his FDCPA claim; the use of the barcode was not a bona fide good faith error. View "Daubert v. NRA Group LLC" on Justia Law

A Harrisburg, Pennsylvania ordinance prohibits persons to “knowingly congregate, patrol, picket or demonstrate in a zone extending 20 feet from any portion of an entrance to, exit from, or driveway of a health care facility.” Individuals purporting to provide “sidewalk counseling” to those entering abortion clinics claimed that the ordinance violated their First Amendment rights to speak, exercise their religion, and assemble, and their due process and equal protection rights. The court determined that the ordinance was content-neutral because it did not define or regulate speech by subject-matter or purpose, so that intermediate scrutiny applied, and reasoned that it must accept as true (on a motion to dismiss) claims that the city did not consider less restrictive alternatives. The claims proceeded to discovery. In denying preliminary injunctive relief, the court ruled that plaintiffs did not demonstrate a likelihood of success on the merits. The Third Circuit vacated. In deciding whether to issue a preliminary injunction, plaintiffs normally bear the burden of demonstrating likelihood of prevailing on the merits. In First Amendment cases where the government bears the burden of proof on the ultimate question of a statute’s constitutionality, plaintiffs must be deemed likely to prevail for purposes of considering a preliminary injunction unless the government has shown that plaintiffs’ proposed less restrictive alternatives are less effective than the statute. View "Reilly v. City of Harrisburg" on Justia Law

Elonis’s wife left their home with their children. Elonis had trouble at work, leaving early and crying at his desk. Morrissey, an employee Elonis supervised, claimed sexual harassment. Elonis posted on Facebook a photograph, showing Elonis in costume holding a knife to Morrissey’s neck, captioned “I wish.” Elonis was fired. Days later, Elonis began posting statements about “sinister plans for all my friends,” and, concerning his wife, “smothered your ass … dumped your body” that their son “should dress up as matricide” and “I’m not going to rest until your body is a mess, soaked in blood and dying.” Following issuance of a protective order, Elonis posted statements concerning shooting at his wife’s house, using explosives, and “I’m checking out and making a name for myself.” After being visited by federal agents, he posted statements about blowing up SWAT members. Elonis was convicted of transmitting in interstate commerce communications containing a threat to injure another, 18 U.S.C. 875(c). The Third Circuit affirmed, rejecting an argument that he did not subjectively intend his Facebook posts to be threatening. The Supreme Court reversed, finding the jury instruction regarding Elonis’s mental state insufficient. On remand, the Third Circuit again affirmed Elonis’s conviction, finding the error harmless. The evidence overwhelmingly shows that Elonis posted the messages with either the purpose of threatening his ex-wife, or with knowledge that she would interpret the posts as threats. No rational juror could conclude otherwise. View "United States v. Elonis" on Justia Law

The district court dismissed, for lack of jurisdiction, a constitutional challenge to an electronic surveillance program operated by the National Security Agency (NSA) under the authority of Section 702 of the Foreign Intelligence Surveillance Act (FISA), 50 U.S.C. 1881a. The court noted that the plaintiff failed to plead facts from which one might reasonably infer that his own communications had been seized by the federal government. The Third Circuit vacated and remanded. The second amended complaint alleged that because the government was “intercepting, monitoring and storing the content of all or substantially all of the e-mail sent by American citizens,” plaintiff’s own online communications had been seized in the dragnet. That allegation sufficiently pleaded standing to sue for a violation of plaintiff’s Fourth Amendment right to be free from unreasonable searches and seizures. Plaintiff may lack actual standing to sue; the government may, on remand to make a factual jurisdictional challenge to that pleading. The alleged facts—even if proven—do not conclusively establish that a dragnet on the scale alleged by plaintiff. On remand, the court must closely supervise limited discovery. View "Schuchardt v. President of the United States" on Justia Law