Articles Posted in Communications Law

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New Cingular Wireless PCS LLC, an affiliate of AT&T Mobility LLC, provides both wireless voice telephone services and data services to customers in the city of Clyde Hill. Clyde Hill imposes a local utility tax on wireless telephone services, which applies to both voice and data services. New Cingular had for years collected utility taxes from Clyde Hill's residents on all charges for wireless and telephone voice and data services, and paid the tax to the city. In this case, the issue presented for the Supreme Court's review was whether the cellular service provider could challenge a city fine through an action for declaratory judgment in superior court. The trial court dismissed, holding that a declaratory judgment action was improper and judicial review should have been sought by way of a statutory writ of review under RCW 7 .16.040. The Court of Appeals reversed, reinstating the declaratory action and remanding for a decision on the merits. Finding no reversible error in the Court of Appeals' judgment, the Supreme Court affirmed. View "New Cingular Wireless PCS, LLC v. City of Clyde Hill" on Justia Law

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Advertisements featuring three minor girls, J.S., S.L., and L.C. (collectively J.S.), allegedly were posted on a website owned and maintained by Village Voice Media Holdings, d/b/a Backpage.com, Backpage.com LLC and New Times Media LLC, d/b/a/ Backpage.com (collectively Backpage). J.S. allegedly was raped multiple times by adult customers who responded to the advertisements. J.S. filed a complaint alleging state law claims for damages against Backpage and Baruti Hopson, asserting claims for negligence, outrage, sexual exploitation of children, ratification/vicarious liability, unjust enrichment, invasion of privacy, sexual assault and battery, and civil conspiracy. Backpage moved to dismiss on the theory that it was immune from suit in relation to J.S. 's state law claims under the federal Communications Decency Act of 1996 (CDA). Plaintiffs alleged that the defendants did more than just provide a forum for illegal content; plaintiffs alleged defendants helped develop it. Taking the complaint as true, the Washington Supreme Court found that plaintiffs alleged sufficient facts that, if proved, would show that defendants helped to produce the illegal content and therefore were subject to liability under state law. Accordingly, the Court affirmed and remanded this case back to the trial court for further proceedings. View "J.S. v. Vill. Voice Media Holdings, LLC" on Justia Law

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The United States Court of Appeals for the Ninth Circuit certified a question to the Washington Supreme Court concerning whether an "early termination fee" (ETF) in a broadband internet service contract constituted an "alternative performance provision" or as a liquidated damages clause. Appellants are all customers who either incurred this ETF for canceling early or were threatened with this ETF for attempting to cancel early. All Appellants were dissatisfied with Clearwire’s service, alleging that instead of the fast and reliable service promised, they received inconsistent and painstakingly slow speeds. Plaintiff Chad Minnick sued Clearwire in King County Superior Court in April 2009, claiming that Clearwire was committing false advertising and was imposing ETFs unlawfully. He then filed the first amended complaint in May, which added the other 11 plaintiffs through class certification. In July, Clearwire removed the case to the federal district court where it filed a motion to dismiss all of Appellants' claims. The district court granted Clearwire's motion. Appellants then appealed to the Ninth Circuit, arguing that the ETF was a liquidated damages provision and not an alternative performance provision as the trial court found. Under Washington law, an alternative performance provision is distinguishable from a liquidated damages provision because it provides a "real option" to the promisor and the alternatives are reasonably equal to each other. Here, the ETF provided a "real option" at the time of contracting because Appellants wanted to retain the control and flexibility that the early cancellation allowed them. Further, the ETF was less expensive than the remaining payments for the majority of the contract's life, thereby indicating the options were reasonably related. The ETF also allowed Appellants to benefit from reduced monthly premiums under the fixed-term contract but also enjoy some of the flexibility of the month-to-month subscription. Therefore, the ETF is an alternative performance provision that is not subject to a penalty analysis. View "Minnick v. Clearwire US, LLC" on Justia Law

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The Supreme Court received a certified question from the Ninth Circuit Court of Appeals. The issue centered on whether under RCW 82.04.500 a seller may upon disclosure, recoup its business and occupation (B&O) tax by collecting a surcharge to recover gross receipts taxes in addition to its monthly service fee. The matter stems from Plaintiff-Appellant James Bowden's purchase of three cell phones and a monthly service plan for each phone at a kiosk. The phone company's monthly service fee did not include Washington's B&O tax. However, the tax was listed as a "State B and O Surcharge" on Plaintiff's monthly bills, for which he was charged various amounts for each of the phones. Upon review, the Supreme Court concluded that the phone company's monthly service fee, the sales price of its service contract, did not include the B&O surcharge. Rather, on the Agreement, the surcharge was listed separately under the "Regulatory Recovery Fee" provision described as a gross receipts surcharge. Further, the company's billing statements listed the surcharge separately like it was a sales tax, and both the sales tax and B&O fee were added on to the service fee. The Court therefore answered "no": even if disclosed under RCW 82.04-500, a seller is prohibited from recouping its B&O taxes by collecting a surcharge in addition to its monthly service fee. View "Peck v. AT&T Mobility" on Justia Law

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Petitioner Helen Immelt sounded a car horn at length in front of a neighbor’s house in the early morning hours. She was arrested for violating a Snohomish County noise ordinance that included amongst its prohibited noise disturbances horn honking for a purpose other than public safety, or originating from an officially sanctioned parade or other public event. She challenged the horn ordinance as overbroad and in violation of free speech protections. Upon review, the Supreme Court found that the ordinance was overbroad, and reversed Petitioner's conviction. View "Washington v. Immelt" on Justia Law

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A reporter from the News Tribune newspaper sought access to the deposition of a material witness in a criminal trial. The deposition took place in a courtroom with the judge present. Without engaging in an inquiry into the factors pursuant to "Seattle Times Co. v. Ishikawa," the trial court closed the courtroom on the ground that depositions are not open to the public. The deposition was not introduced at trial and did not become part of the court's decision making process. The News Tribune sought a writ of mandamus to compel the production of the transcript and videotape of the deposition, arguing that it had the right to attend the deposition under the Washington State Constitution and the First Amendment to the federal constitution. Under the circumstances of this case, the Supreme Court concluded that neither the state or federal constitution was violated by the trial court's ruling that the deposition proceeding was not open to the public: "The News Tribune's claim that the location and presence of the judge turned the deposition into a 'hearing' to which the open courts protections apply" was incorrect. Accordingly, the Court denied the News Tribune's application for a writ of mandamus. View "Tacoma News, Inc. v. Cayce" on Justia Law