Justia U.S. 3rd Circuit Court of Appeals Opinion Summaries

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

Relying on an advertiser’s claim that its fax advertising program complied with the Telephone Consumer Protection Act (TCPA), 47 U.S.C. 227, Stevens & Ricci allowed the advertiser to fax thousands of advertisements to potential customers on its behalf. More than six years later, Hymed filed a class action TCPA lawsuit, which settled with a $2,000,000 judgment against Stevens & Ricci. While that suit was pending, Auto-Owners sought a declaratory judgment, claiming that the terms of the insurance policy it provided Stevens & Ricci did not obligate it to indemnify or defend Stevens & Ricci in the class action. The Third Circuit affirmed summary judgment, finding that the sending of unsolicited fax advertisements in violation of the TCPA did not fall within the terms of the insurance policy. The “Businessowners Insurance Policy” obligated Auto-Owners to “pay those sums that the insured becomes legally obligated to pay as damages because of ‘bodily injury’, ‘property damage’, ‘personal injury’ or ‘advertising injury’ to which this insurance applies.” The “advertising injury” deals only with the publication of private information, View "Auto-Owners Ins. Co. v. Stevens & Ricci Inc" on Justia Law

The Township of Tredyffrin Zoning Hearing Board of Appeals denied an application by DePolo, a federally licensed amateur or “ham” radio enthusiast, to build a 180-foot radio antenna tower on his property so that he could communicate with other ham radio operators around the world. The property is surrounded by mountains or hills. He claimed a shorter tower would not allow him to reliably communicate with other ham radio operators. The ZHBA agreed to a tower that was 65-feet tall as a reasonable accommodation under the applicable zoning ordinance prohibition on buildings taller than 35 feet. DePolo did not appeal that decision to the Chester Court of Common Pleas as allowed under state law, but filed a federal suit, claiming that zoning ordinance was preempted by 47 C.F.R. 97.15(b), and the closely related FCC declaratory ruling, known as PRB-1. The district court dismissed, finding that the ZHBA had offered a reasonable accommodation and that the zoning ordinance was not preempted by PRB-1. The Third Circuit rejected an appeal. DePolo’s failure to appeal the ZHBA’s determination to state court rendered the decision final, entitled to the same preclusive effect that it would have had in state court. View "Depolo v. Tredyffrin Twp. Bd. of Supervisors" on Justia Law

Under the Facebook account name “Billy Button,” Browne began exchanging messages with 18-year-old Nicole. They met in person and exchanged sexually explicit photographs of themselves through Facebook chats. Browne threatened to publish the photos online unless Nicole engaged in oral sex and promised to delete the photos only if she provided him the password to her Facebook account. Using that account, Browne made contact with four minors and solicited explicit photos. Once he had their photos, he repeated the pattern, threatening to publish their images unless they engaged sexual acts. Alerted by the Virgin Islands Police Department, Department of Homeland Security (DHS) agents investigated, arrested Browne, executed a search warrant on his residence, and seized a cell phone from which text messages and photos of the minors were recovered. Browne admitted ownership of the phone and Facebook account. Facebook provided five sets of chats and a certificate of authenticity executed by its records custodian, which were admitted at trial. The Third Circuit affirmed his convictions for child pornography and sexual offenses with minors. While rejecting the government’s assertion that, under Rule 902(11), the contents of the communications were “self-authenticating” as business records accompanied by a certificate from the records custodian, the court found that the record reflected sufficient extrinsic evidence to link Browne to the chats and satisfy the prosecution’s authentication burden under a conventional Rule 901 analysis. View "United States v. Browne" on Justia Law

In 2011, the National Association for the Advancement of Colored People submitted an ad for display at the Philadelphia International Airport, offering to pay the prevailing market rate for the ad, which read: “Welcome to America, home to 5% of the world’s people & 25% of the world’s prisoners. Let’s build a better America together. NAACP.org/smartandsafe.” The City of Philadelphia rejected the ad, based on informal practice, While the NAACP’s lawsuit was pending, the city, which owns the airport, adopted the formal policy, preventing private advertisers from displaying noncommercial content at the Airport. Paid advertisements are allowed. The city argued that the policy helps it further its goals of maximizing revenue and avoiding controversy. The Third Circuit affirmed summary judgment, finding the ban unconstitutional. The court noted that the city acknowledged “substantial flaws” in the city’s justifications. The ban is unreasonable, violates the First Amendment and cannot be enforced as written. View "Nat'l Ass'n for the Advancement of Colored People v. City of Philadelphia" on Justia Law

The district court dismissed a consolidated class action in which plaintiffs, children younger than 13, alleged that Viacom and Google unlawfully collected personal information about them on the Internet, including what webpages they visited and what videos they watched on Viacom’s websites. The claims alleged invasion of privacy under New Jersey law and cited the 1988 Video Privacy Protection Act, 18 U.S.C. 2710 which prohibits the disclosure of personally identifying information relating to viewers’ consumption of video-related services. The Third Circuit affirmed in part, holding that the Act permits plaintiffs to sue only a person who discloses such information, not a person who receives such information, and that the prohibition on the disclosure of personally identifiable information applies only to the kind of information that would readily permit an ordinary person to identify a specific individual’s video-watching behavior, so that digital identifiers, like IP addresses, fall outside the Act. The court vacated dismissal of a claim of intrusion upon seclusion that alleged that Viacom explicitly promised not to collect any personal information about children who browsed its websites and then did so. The 1998 Children’s Online Privacy Protection Act, 15 U.S.C. 6501,authorizing the FTC to regulate websites that target children, does not preempt the state-law privacy claim. View "In Re: Nickleodeon Consumer Privacy Litig." on Justia Law

The 1988 Child Protection and Obscenity Enforcement Act requires producers of visual depictions of “actual sexually explicit conduct” to keep records documenting the identity and age of every performer in those depictions, 18 U.S.C. 2257(a). The 2006 Adam Walsh Child Protection and Safety Act, 18 U.S.C. 2257A, extended similar requirements to producers of depictions of “simulated sexually explicit conduct.” Producers are required to examine “an identification document” for each performer and maintain records listing each performer’s name and birthdate, available for inspection “at all reasonable times.” Producers must “affix[] to every copy” of covered depictions “a statement describing where the records . . . may be located.” After the district court dismissed a challenge, the Third Circuit identified viable as-applied and facial claims under the First and Fourth Amendments. Following remand, the Third Circuit held that the administrative search regime violates the Fourth Amendment, but that the laws did not violate the First Amendment. Reviewing the case for a third time, in light of 2015 Supreme Court holdings (Reed v. Town of Gilbert and City of Los Angeles v. Patel), the Third Circuit determined that the statutes are content-based, and require strict scrutiny review under the First Amendment and remanded. View "Free Speech Coal., Inc. v. Att'y Gen. of the United States" on Justia Law

A 2005 Pittsburgh ordinance states that: [n]o person or persons shall knowingly congregate, patrol, picket or demonstrate in a zone extending fifteen (15) feet from any entrance to the hospital and or health care facility," with exceptions for safety personnel and those assisting patients and others. A preamble states: “The exercise of a person’s right to protest or counsel against certain medical procedures is a First Amendment activity that must be balanced against another person’s right to obtain medical counseling and treatment in an unobstructed manner.” Plaintiffs, who engaged in “sidewalk counseling” outside of a Planned Parenthood facility to persuade women to forego abortion services, challenged the ordinance, citing the Supreme Court’s 2014 decision in McCullen v. Coakley, which struck down a similar Massachusetts law. The Third Circuit vacated dismissal of the First Amendment claims. Considered in the light most favorable to the plaintiffs, those claims are sufficient to go forward. The speech at issue is core political speech entitled to maximum First Amendment protection; the city cannot burden it without first trying, or at least demonstrating that it has seriously considered, substantially less restrictive alternatives that would achieve its legitimate, substantial, and content-neutral interests. McCullen indicates that the constitutionality of buffer zone laws turns on the factual circumstances giving rise to the law in each case, so dismissal of such challenges is rarely appropriate at the pleading stage. View "Bruni v. City of Pittsburgh" on Justia Law

Section 202(h) of the 1996 Telecommunications Act, 110 Stat. 56, requires the Federal Communications Commission to periodically examine its broadcast ownership rules to limit consolidation in the industry. After the Third Circuit reviewed the Commission’s 2002 and 2006 reviews of its ownership rules, “the process broke down.” The 2010 and 2014 reviews are not complete. In 2016, the Third Circuit held that the Commission has unreasonably delayed action on its definition of an “eligible entity,” a term it has attempted to use as a lynchpin for initiatives to promote minority and female broadcast ownership, and ordered mediation. The court speculated that it might be necessary to invalidate FCC rules in the future if the Commission does not act quickly to carry out its legislative mandate. The court vacated a rule based on Commission’s 2014 determination that parties were evading its limits on the number of television stations that an entity can own through the influence exerted by advertising contracts known as joint sales agreements. The rule was procedurally invalid because it was adopted even though the Quadrennial Review cycle was severely backlogged. View "Howard Stirk Holdings LLC v. Fed. Commc'ns Comm'n" on Justia Law

An Automated Maritime Telecommunications System (AMTS) is a U.S. communication service between land and vessels in navigable waterways, existing on specific broadcast frequencies. Advances in technology have greatly expanded the potential uses of AMTSs. Under the original site-based system, small geographic regions were defined by location and the waterway served and the FCC provided licenses at no cost to the first applicant. In 2000, the FCC stopped issuing site-based licenses and began issuing licenses by competitive bidding; it divided the U.S. into 10 regions and, at public auctions, sold “geographic” licenses for two blocks of AMTS frequencies in each region. Although geographic licensees may generally place stations anywhere within their region, they may not interfere with the functioning of existing site-based stations, so the location of a site-based station creates a gap in a geographic licensee’s coverage area. Plaintiffs obtained geographic licenses in areas overlaying pre-existing site-based licenses. Site-based operators refused to provide plaintiffs with the operating contours for their site-based locations within plaintiffs’ geographic locations. Plaintiffs filed suit, alleging violation of the Federal Communications Act and the Sherman Antitrust Act. The Third Circuit affirmed dismissal of the FCA claims and a determination that no antitrust conspiracy existed. Plaintiffs did not identify particular actions that were determined by the FCC to be unreasonable or unjust and, therefore, do not possess a private right of action. View "Havens v. Mobex Network Servs., LLC" on Justia Law