Justia U.S. D.C. Circuit Court of Appeals Opinion SummariesArticles Posted in Internet Law
United States Telecom Assoc. v. FCC
Petitioners challenge the Commission's 2015 Open Internet Order, which reclassified broadband service as a telecommunications service, subject to common carrier regulation under Title II of the Communications Act, 47 U.S.C. 201. The Commission determined that broadband service satisfies the statutory definition of a telecommunications service: “the offering of telecommunications for a fee directly to the public.” In accordance with Brand X, the Commission's conclusions about consumer perception find extensive support in the record and together justify the Commission’s decision to reclassify broadband as a telecommunications service. See National Cable & Telecommunications Ass’n v. Brand X Internet Services. The court rejected petitioners' numerous challenges to the Commission's decision to reclassify broadband, finding that none have merit. The court concluded that the Commission adequately explained why it reclassified broadband from an information service to a telecommunications service and its decision was not arbitrary and capricious. US Telecom never questions the Commission’s application of the statute’s test for common carriage, and US Telecom cites no case, nor is the court aware of one, holding that when the Commission invokes the statutory test for common carriage, it must also apply the NARUC test. See National Ass’n of Regulatory Utility Commissioners v. FCC. Where the Commission concluded that it could regulate interconnection arrangements under Title II as a component of broadband service, the court rejected US Telecom's two challenges to the Commission's decision. The court rejected mobile petitioners’ arguments and find that the Commission’s reclassification of mobile broadband as a commercial mobile service is reasonable and supported by the record. In the Order, the Commission decided to forbear from numerous provisions of the Communications Act. The court rejected Full Service Network's procedural and substantive challenges to the Commission’s forbearance decision. The Commission promulgated five rules in the Order: rules banning (i) blocking, (ii) throttling, and (iii) paid prioritization; (iv) a General Conduct Rule; and (v) an enhanced transparency rule. The court rejected Alamo's challenge to the anti-paid-prioritization rule as beyond the Commission’s authority and rejected US Telecom's challenge to the General Conduct Rule as unconstitutionally vague. Having upheld the FCC’s reclassification of broadband service as common carriage, the court concluded that the First Amendment poses no bar to the rules and the court rejected Alamo and Berninger's challenges. Accordingly, the court denied the petitions for review. View "United States Telecom Assoc. v. FCC" on Justia Law
Klayman v. Zuckerberg, et al.
Plaintiff filed suit against Facebook and its founder, alleging that their delay in removing a page entitled "Third Palestinian Intifada," and related pages, which called for Muslims to rise up and kill the Jewish people, constituted intentional assault and negligence. The court affirmed the district court's holding that the Communications Decency Act of 1996, 47 U.S.C. 230, shielded Facebook and its founder from suit where Facebook qualified as an interactive computer service; the complaint acknowledges that the objected-to information was provided by third party users, not Facebook itself; and the complaint seeks to hold Facebook liable as the "publisher or speaker" of that information.View "Klayman v. Zuckerberg, et al." on Justia Law
AF Holdings, LLC v. Does 1-1058
AF Holdings, represented by Prenda Law, filed suit in district court against 1,058 unnamed John Does who it alleged had illegally downloaded and shared the pornographic film "Popular Demand" using a file-sharing service known as BitTorrent. Prenda Law's general approach was to identify certain unknown persons whose IP addresses were used to download pornographic films, sue them in gigantic multi-defendant suits that minimized filing fees, discover the identities of the persons to whom these IP addresses were assigned by serving subpoenas on the Internet service providers to which the addresses pertained, and then negotiate settlements with the underlying subscriber. The providers refused to comply with the district court's issuance of subpoenas compelling them to turn over information about the underlying subscribers, arguing that the subpoenas are unduly burdensome because venue is improper, personal jurisdiction over these Doe defendants is lacking, and defendants could not properly be joined together in one action. The court agreed, concluding that AF Holdings clearly abused the discovery process by not seeking information because of its relevance to the issues that might actually be litigated here. AF Holdings could not possibly have had a good faith belief that it could successfully sue the overwhelming majority of the John Doe defendants in this district. Although AF Holdings might possibly seek discovery regarding individual defendants in the judicial districts in which they are likely located, what it certainly may not do is improperly use court processes by attempting to gain information about hundreds of IP addresses located all over the country in a single action, especially when many of those addresses fall outside of the court's jurisdiction. Given AF Holdings' decision to name and seek discovery regarding a vast number of defendants who downloaded the film weeks and even months apart - defendants who could not possibly be joined in this litigation - one can easily infer that its purpose was to attain information that was not, and could not be, relevant to this particular suit. Accordingly, the court vacated the order and remanded for further proceedings, including a determination of sanctions, if any, for AF Holdings' use of a possible forgery in support of its claim.View "AF Holdings, LLC v. Does 1-1058" on Justia Law
Verizon v. FCC, et al.
Verizon challenged the FCC's Open Internet Order, which imposed disclosure, anti-blocking, and anti-discrimination requirements on broadband providers. The court concluded that the Commission has established that section 706 of the Telecommunications Act of 1996, 47 U.S.C. 1302(a), (b), vests it with affirmative authority to enact measures encouraging the deployment of broadband infrastructure; the Commission reasonably interpreted section 706 to empower it to promulgate rules governing broadband providers' treatment of Internet traffic, and its justification for the specific rules at issue here - that they will preserve and facilitate the "virtuous circle" of innovation that has driven the explosive growth of the Internet - was reasonable and supported by substantial evidence; given that the Commission has chosen to classify broadband providers in a manner that exempts them from treatment as common carriers, the Communications Act, 47 U.S.C. 201 et seq., expressly prohibits the Commission from nonetheless regulating them as such; and because the Commission has failed to establish that the anti-discrimination and anti-blocking rules did not impose per se common carrier obligations, the court vacated those portions of the Open Internet Order. View "Verizon v. FCC, et al." on Justia Law
Electronic Privacy Info. Center v. National Security Agency
EPIC filed a Freedom of Information Act (FOIA), 5 U.S.C. 552, request with the NSA seeking disclosure of any communications between NSA and Google regarding encryption and cyber security. EPIC's FOIA request arose out of a January 2010 cyber attack on Google that primarily targeted the Gmail accounts of human rights activists. The court held that any response to EPIC's FOIA request might reveal whether NSA did or did not consider a particular cyber security incident, or the security settings in particular commercial technologies, to be a potential threat to U.S. Government information systems. Any such threat assessment, as well as any ensuing action or inaction, implicated an undisputed NSA "function" and thus fell within the broad ambit of Section 6 of the National Security Agency Act, Pub. L. No 86-36, section 6(a), 73 Stat. 63. Accordingly, the court affirmed the judgment. View "Electronic Privacy Info. Center v. National Security Agency" on Justia Law