Communications Litigation Today is tracking the following lawsuits involving appeals of FCC actions:
The complaint from Arkansas Attorney General Tim Griffin (R) alleging TikTok is violating the Arkansas Deceptive Trade Practices Act by duping Arkansas citizens about the risks of using TikTok is “a run-of-the-mill state-court case,” said Griffin’s brief Thursday (docket 1:23-cv-01038) in U.S. District Court for Western Arkansas in El Dorado in support of his motion to remand. Griffin wants the case returned to Union County Circuit Court where it originated March 28 before TikTok removed it to federal court May 9 (see 2305100036). TikTok argues the case belongs in federal court “because TikTok’s conduct also implicates foreign policy and national-security issues that the federal government might address,” said the brief. “In other words, TikTok argues that the sheer scope of the problems it has created enables it to choose its preferred forum,” it said. The argument is “meritless," as another federal court “recently recognized in the exact same posture,” it said. Indiana also sued TikTok for violating that state’s consumer-protection law, it said. “As in this case, Indiana alleges that TikTok collects users’ personal information without telling them that this information might be shared with China,” it said. “As in this case, TikTok removed to federal court on the theory that the state’s state-law claim arose under federal law,” creating federal-question jurisdiction under Title 28's Section 1331, it said. The court rejected that theory and remanded to state court, noting TikTok failed to point to any question of federal law that would need to be decided, it said. “That analysis necessarily applies here, where TikTok filed functionally the same Notice of Removal as it filed there,” said the brief. Federal-question jurisdiction “requires a question of federal law, “and no such question can be found” in the Arkansas complaint, it said. Whether TikTok is liable under Arkansas law for deceiving Arkansas consumers doesn’t depend “on the construction of any federal statute or other source of federal law,” it said. “Nor is it one of the limited subjects that arise under federal common law,” which the complaint doesn’t invoke, it said: “This case is a pure matter of state law and should be remanded to the state court where it was filed.”
The city of Roswell, Georgia, posed two dozen questions to T-Mobile Thursday about the current process it uses to evaluate the need for a cell tower, and how that process differs from the one in place when the city rejected T-Mobile’s cell tower application in 2017. Thursday’s notice (docket 1:10-cv-01464) conformed to the first deadline on the schedule in the June 2 order signed by U.S. District Judge Amy Totenberg for Northern Georgia in Atlanta aimed toward continuation of a September 2018 evidentiary hearing on the parties’ motions for summary judgment. After releasing her March 17 opinion and order saying the FCC’s September 2018 small-cells declaratory ruling can’t be applied retroactively to Roswell’s 2017 denial of T-Mobile’s cell tower application (see 2303210036), Totenberg asked the parties to confer about the most efficient way to continue the nearly four-year-old evidentiary hearing. The schedule she adopted from their proposed order was the result. Among the other questions Roswell posed to T-Mobile: (1) What has the carrier done to “identify potential alternative cell sites” for the proposed tower since September 2018?; (2) What are the current standards that T-Mobile uses to define necessary capacity, throughput speed, signal strength, and signal quality, and how do they differ from the standards used when T-Mobile originally submitted its cell tower application in 2017?; (3) What's the average number of connected users that can currently be accommodated at each bandwidth frequency in the area of the proposed tower?; and (4) Did T-Mobile procure any new frequencies, bandwidth or access to towers or alternative structures located in Roswell as the result of the 2020 Sprint merger? Following T-Mobile’s written request for information from Roswell, also due Thursday, the parties have until July 14 to respond, said Totenberg’s order.
Cambria County, Pennsylvania, wrongly alleges in its complaint that many portions of the telephone facilities and conduit in an easement under Verizon’s control along the Inclined Plane funicular connecting the city of Johnstown to the borough of Westmont are in disrepair (see 2306020001), said Verizon’s memorandum Tuesday (docket 3:23-cv-00108) in U.S. District Court for Western Pennsylvania in Pittsburgh in support of its motion to dismiss. Verizon “is committed to maintaining its facilities along the Inclined Plane and has and will continue to make such repairs as are necessary,” it said. But the county’s “true reason” for bringing its lawsuit is to force Verizon to pay a fair-market rent for its continued use of the easement “for which it has already bargained and provided sufficient consideration, and which remains valid and binding,” it said. All of the county’s “asserted causes of action fail as a matter of law,” it said. Plaintiffs allege in Count I that Verizon breached the subject easement agreement by failing to “maintain” its facilities within the easement. The easement agreement “conveys to Verizon the right -- and not the obligation -- to maintain its facilities,” it said. “Nowhere does the agreement say that Verizon has a duty to make the repairs which could be breached or that an alleged failure negates Verizon’s easement rights as defined in the agreement,” it said. The county “improperly and inexplicably” seeks an award of damages for the nonexistent breach and for the court to rewrite the agreement and order additional payments from Verizon “not originally bargained for and not in any way associated with the purported breach,” it said. The county not only failed to state a claim for breach of contract, but also seeks a form of relief “that fails as a matter of law,” it said.
Communications Litigation Today is tracking the following lawsuits involving appeals of FCC actions:
Section 230 protection is broad and bars a Californian user’s lawsuit against Twitter, the 1st District California Court of Appeals ruled Friday. The court affirmed a lower court dismissing Maria Rutenburg’s complaint about Twitter deleting former President Donald Trump’s account. Rutenberg claimed Twitter violated her state constitutional right to free speech when the platform moderated and deleted Trump’s account because it prevented her from accessing an “interactive space” for replying to the Republican’s tweets. Twitter demurred, arguing the lawsuit was barred by Section 230; the social platform isn’t a state actor; Rutenberg lacks standing because Twitter moderated Trump’s account, not hers; and Trump is no longer president. The trial court agreed, so the Twitter user appealed. Although Rutenberg denies it, she's “seeking to hold Twitter liable for ‘typical publisher conduct protected by section 230,’” wrote Judge Kathleen Banke. “It makes no difference that Rutenberg has styled her claim as one for violation of free speech rights under our state constitution.” The allegedly injurious conduct included “Twitter’s decisions regarding whether to edit content posted by an account holder or to ban it altogether,” she said. “Rutenberg’s allegations demonstrate that her state free speech claim is grounded on Twitter’s editorial actions with respect to Trump’s account, and not on Twitter’s origination and posting of independent ‘news’ content. That these editorial actions resulted in an alteration of the ‘physical interactive space,’ and specifically the elimination of this space, does not change the fact that her claims are rooted in” Twitter editorial decisions. “The label a plaintiff ascribes to a social media platform’s conduct is not determinative of whether section 230 bars the lawsuit.” Banke added, “There undoubtedly is tension between the dual purposes of section 230 -- to limit federal regulation and thereby encourage free speech … and to encourage the monitoring and control of content that a private social media platform deems offensive.” But she said that’s a matter for Congress.
Video game developer FunPlus advertises former prices to induce players to act quickly to take advantage of limited-time sale prices, alleged a fraud class action Tuesday (docket 3:23-cv-02667) in U.S. District Court for Northern California in San Francisco.
Four plaintiffs, including current and former Dish Network employees, joined a class action against Dish after a Feb. 23 data breach, said the first amended complaint (docket 1:23-cv-01168) to a May 9 lawsuit in U.S. District Court for Colorado in Denver (see 2305110027). The privacy suit alleges Dish failed to properly secure customers’ and employees’ personally identifiable information (PII) from hackers after a February network outage. The amended complaint also added violations of the Health Insurance Portability and Accountability Act (HIPAA).
Cox, CBS and Fox agreed to a $48 million settlement with advertisers in a long-running antitrust lawsuit stemming from a 2018 DOJ investigation of ad price collusion that arose during inquiries into the failed Sinclair/Tribune deal, said a motion filed last week in U.S. District Court in Chicago (docket number 1:18-cv-06785). Under the settlement, Cox, CBS and Fox will provide information and testimony that could help the advertisers as the litigation continues against broadcasters that aren’t part of the settlement, such as Nexstar, Sinclair and Gray Television. The settling defendants will provide “meaningful cooperation, which will assist Plaintiffs in the prosecution of their claims against the Non-Settling Defendants,” said the motion.
The 362-page consolidated class action filed Monday in U.S. District Court for New Jersey in Camden arising from last summer’s Samsung data breach (see 2305230049) includes previously undisclosed detail on its allegedly lax security procedures and the questionable manner in which it disclosed the hack to its customers. The consolidated complaint (docket 1:23-md-03055) asserts claims on behalf of a nationwide class of Samsung account holders, plus state subclasses in all 50 states.