Justia U.S. 7th Circuit Court of Appeals Opinion SummariesArticles Posted in Communications Law
Speech First, Inc. v. Killeen
Speech First challenged University of Illinois policies that allegedly impermissibly chill the speech of its student members. The Bias Assessment and Response Team (BART) responds to reports of bias-motivated incidents. Most students contacted by BART either do not respond or decline to meet; they suffer no consequences. If a student agrees to meet, BART staff explains that the student's conduct drew attention and gives the student an opportunity to reflect upon her behavior. BART’s reports are not referred to the University Police. The University Housing Bias Incident Protocol addresses bias-motivated incidents committed within University housing. There are no sanctions or discipline associated with a reported incident. When a student breaches his housing contract or violates University policy, there is a separate disciplinary process. Expression of the views described in the complaint would not contravene housing contracts nor violate any University policies. Individuals subject to student discipline may be subject to “No Contact Directives” (NCDs) and prohibited from communication with identified parties. NCDs do not constitute disciplinary findings and are not part of the students’ official disciplinary records. An NCD does not prohibit the student from talking or writing about the other. The University has not investigated or punished any members of Speech First under any of the challenged policies.The Seventh Circuit affirmed the denial of a preliminary injunction. Speech First failed to demonstrate that its members face a credible fear that they will face discipline on the basis of their speech as a result of the policies. View "Speech First, Inc. v. Killeen" on Justia Law
Left Field Media LLC v. City of Chicago
In 2016, the Seventh Circuit held that Chicago is entitled to limit sales on the streets adjacent to Wrigley Field, home of the Chicago Cubs, but remanded a magazine seller’s contention that an ordinance requiring all peddlers to be licensed was invalid because of an exception for newspapers. Before the judge acted on remand, Chicago amended its ordinance to provide: It shall be unlawful for any person to engage in the business of a peddler without first having obtained a street peddler license under this chapter. Provided, however, a street peddler license is not required for selling, … only newspapers, periodicals, pamphlets, or other similar written materials on the public way. There is no distinction between newspapers and magazines. Left Field Media withdrew its request for an injunction but sought damages to compensate for injury before the amendment.The Seventh Circuit affirmed the dismissal of the suit for want of a justiciable controversy. Left Field did not show any injury. It did not assert other costs, such as overtime wages or legal fees incurred to attempt to get a license. Because Left Field has not offered details, it would not be possible to conclude that it suffered even a dollar in marginal costs. View "Left Field Media LLC v. City of Chicago" on Justia Law
Molson Coors Beverage Co. v. Anheuser-Busch Companies, LLC
In 2019, Anheuser-Busch began to advertise that its beer, Bud Light, is made using rice, while Miller Lite and Coors Light use corn syrup as a source of sugar that yeast ferments into alcohol. Molson Coors responded by advertising that its beers taste be]er because of the difference between rice and corn syrup. In a lawsuit, Molson contended that Anheuser-Busch violated section 43 of the Lanham Act, 15 U.S.C. 1125, by implying that a product made from corn syrup also contains corn syrup. After a remand, the district court issued an injunction.The Seventh Circuit affirmed to the extent that the order denied Molson’s request for an injunction and reversed to the extent that the Bud Light advertising or packaging was enjoined. To the extent that the injunction prevents Anheuser-Busch from stating that Miller Lite or Coors Light “contain” corn syrup, it was vacated; Anheuser-Busch has never stated this nor said that it wants to do so but only made the true statement that “their beer is made using corn syrup and ours isn’t.” View "Molson Coors Beverage Co. v. Anheuser-Busch Companies, LLC" on Justia Law
O’Brien v. Village of Lincolnshire
An Illinois municipality may join the Municipal League, an unincorporated, nonprofit, nonpolitical association, and may pay annual membership dues and fees; member municipalities may act through the League to provide and disseminate information and research services and do other acts for improving local government, 65 ILCS 5/1-8-1. Lincolnshire is one of more than a thousand dues-paying League members and uses tax revenue to pay the dues from the Village’s General Fund. From 2013-2018, Lincolnshire paid at least $5,051 in voluntary dues and fees to the League. Individual residents and the Unions sued, claiming First Amendment and the Equal Protection Clause violations. They claimed that Lincolnshire compelled them to subsidize private speech on matters of substantial public concern because the League sent emails promoting a particular political agenda, including the adoption of “right to work” zones.The Seventh Circuit affirmed the dismissal of the suit. Lincolnshire itself has the right to speak for itself and a right to associate; it voluntarily joined the League as it is authorized to do. Local governments must be allowed to discuss, either directly or through a surrogate, ideas related to municipal government, regardless of where those ideas originated. View "O'Brien v. Village of Lincolnshire" on Justia Law
United States v. DISH Network L.L.C.
DISH sold its satellite TV service through its own staff plus third parties: “telemarketing vendors”; “full-service retailers” that sold, installed, and serviced satellite gear; and “order-entry retailers” that used phones to sell nationwide. The United States and four states sued DISH and four order-entry retailers. The district court found that the defendants violated the Telemarketing Sales Rule, 16 C.F.R. 310, the Telephone Consumer Protection Act, 47 U.S.C. 227, and related state laws. A $280 million penalty was imposed. DISH appealed concerning the extent to which DISH had to coordinate do-not-call lists with and among these retailers or was otherwise responsible for their acts.The Seventh Circuit affirmed, except for a holding that DISH is liable for “substantially assisting” Star Satellite and its measure of damages; those violations were essentially counted twice. Regardless of the definition of “cause” under the rule, which makes it unlawful for a seller to “cause a telemarketer to engage in” violations, the retailers were DISH's agents, regardless of any contractual disclaimer. They acted directly for DISH, entering orders into DISH’s system; they did not have their own inventory and were not resellers of any kind. The retailers were authorized to sell DISH’s service by phone nationwide; the district court found that DISH knew about these retailers’ wrongful acts, so DISH is liable as the principal. View "United States v. DISH Network L.L.C." on Justia Law
West v. Charter Communications, Inc.
In 1938, West’s predecessor granted Louisville Gas & Electric’s predecessor a perpetual easement permitting a 248-foot-tall tower carrying high-voltage electric lines. In 1990, Louisville sought permission to allow Charter Communication install on the towers a fiber-optic cable that carries communications (telephone service, cable TV service, and internet data); West refused. In 2000 Louisville concluded that the existing easement allows the installation of wires that carry photons (fiber-optic cables) along with the wires that carry electrons. West disagreed and filed suit, seeking compensation.The Seventh Circuit affirmed that the use that Louisville and Charter have jointly made of the easement is permissible under Indiana law. The court cited 47 U.S.C. 541(a)(2), part of the Cable Communications Policy Act of 1984, which provides: Any franchise shall be construed to authorize the construction of a cable system over public rights-of-way, and through easements, which is within the area to be served by the cable system and which have been dedicated for compatible uses, except that in using such easements the cable operator shall ensure…. The court examined the language of the easement and stated: “At least the air rights have been “dedicated” to transmission, and a telecom cable is “compatible” with electric transmission. Both photons and electrons are in the electromagnetic spectrum.” View "West v. Charter Communications, Inc." on Justia Law
Physicians Healthsource, Inc. v. A-S Medication Solutions, LLC
In February 2010, AMS sent a fax advertisement to 11,422 different numbers from a recently acquired customer list. PHI filed a putative class action suit asserting that those faxes violated the Telephone Consumer Protection Act of 1991 (TCPA), 47 U.S.C. 227. The district court subsequently certified the proposed class, granted PHI’s motion for summary judgment on liability against AMS and its CEO, entered a nearly $6 million judgment, and approved a distribution plan for that judgment. The Seventh Circuit affirmed. AMS conceded that the fax in question was an advertisement that lacked any kind of disclaimer explaining how to opt-out of future faxes. AMS did not meet its burden of proving that it had prior express invitation or permission to send faxes; even if the company from which it obtained the customer list had express permission to send faxes, that permission is not transferrable under the TCPA. View "Physicians Healthsource, Inc. v. A-S Medication Solutions, LLC" on Justia Law
Viamedia, Inc. v. Comcast Corp.
Viamedia sued Comcast under the Sherman Act, 15 U.S.C. 2, for using its monopoly power in one service market (Interconnect) to exclude competition and gain monopoly power in another service market (advertising representation) in the Chicago, Detroit, and Hartford geographic markets. Interconnect services are cooperative selling arrangements for advertising through an “Interconnect” that enables retail cable television service providers to sell advertising targeted efficiently at regional audiences. Advertising representation services assist those providers with the sale and delivery of national, regional, and local advertising slots. Viamedia’s evidence indicated Comcast used its monopoly power over the Interconnect to force its smaller retail cable television competitors to stop doing business with Viamedia; Viamedia’s customers for advertising representation (Comcast’s retail cable competitors) switched to Comcast because Comcast presented a choice: either start buying advertising representation services from us and regain access to the Interconnect or keep buying services from Viamedia and stay cut off from the Interconnect they needed to compete effectively. The strategy cost Comcast millions of dollars in the short run but eventually gave it monopoly power in these local markets for advertising representation services.The Seventh Circuit reversed the dismissal of Viamedia’s case. Giving Viamedia the benefit of its allegations and evidence, this is not a case in which Section 2 is being misused to protect weaker competitors rather than competition more generally. Viamedia has also adequately stated a claim that Comcast has unlawfully refused to deal with Viamedia and any cable competitor that bought advertising representation from Viamedia. View "Viamedia, Inc. v. Comcast Corp." on Justia Law
Gadelhak v. AT&T Services, Inc.
The Telephone Consumer Protection Act bars certain uses of an “automatic telephone dialing system,” which it defines as equipment with the capacity “to store or produce telephone numbers to be called, using a random or sequential number generator,” as well as the capacity to dial those numbers AT&T’s “Customer Rules Feedback Tool,” a device that sends surveys to customers who have interacted with AT&T’s customer service department, exclusively dials numbers stored in a customer database. AT&T sent unwanted automated text messages to Gadelhak. Gadelhak brought a putative class action under the Act, 47 U.S.C. 227(b)(1). The district court held and the Seventh Circuit affirmed that AT&T’s system did not qualify as an “automatic telephone dialing system.” While characterizing the Act as a grammatical nightmare, the court concluded that the phrase “using a random or sequential number generator” modifies both “store” and “produce.” AT&T’s system neither stores nor produces numbers using a random or sequential number generator. View "Gadelhak v. AT&T Services, Inc." on Justia Law
Warciak v. Subway Restaurants, Inc.
T-Mobile customers can participate in “T-Mobile Tuesdays,” a promotional service, offering free items and discounts. Customers who no longer wish to receive marketing communications may opt-out by contacting T-Mobile’s customer service. T-Mobile user Warciak received a text message: This T-Mobile Tuesday, score a free 6” Oven Roasted Chicken sub at SUBWAY, just for being w/ T-Mobile. Ltd supply. Get app for details. The message came from T-Mobile. Warciak was not charged for the text. Warciak sued Subway claiming Subway engaged in a common-law agency relationship with T-Mobile, and that Subway’s conduct violated the Telephone Consumer Protection Act (TCPA). T-Mobile is not included in the lawsuit. The court dismissed the complaint as lacking sufficient support for claims of actual and apparent authority: control over the timing, content, or recipients of the text message. The court also found that the wireless carrier exemption applied so that no underlying TCPA violation exists ( 47 U.S.C. 227(b)(2)(C)). Prior written consent is not required for calls to a wireless customer by his wireless carrier if the customer is not charged. The Seventh Circuit affirmed. The only alleged conduct by Subway is its contractual relationship with T-Mobile. Warciak’s complaint lacks sufficient facts showing Subway manifested to the public that T-Mobile was its agent. He relied on T-Mobile’s conduct. Statements by an agent are insufficient to create apparent authority without also tracing the statements to a principal’s manifestations or control. View "Warciak v. Subway Restaurants, Inc." on Justia Law