Law Center Search Results

An exemption in the Freedom of Information Act (FOIA) applies to records or information compiled for law enforcement purposes, "but only to the extent that the production of such law enforcement records or information . . . could reasonably be expected to constitute an unwarranted invasion of personal privacy." AT&T turned over records to the FCC in connection with an investigation of some bills, and a trade association representing some of its competitors sought all the records. In this suit to prevent the FCC from releasing the records, the Third Circuit held that a corporation is included in the statute's definition of a "person" and thus has personal privacy interests protected from disclosure by Exemption 7(C) of FOIA.

The NAM filed an amicus brief 12/15/10 arguing that corporations enjoy easily recognizable privacy interests other than those involving financial or trade secrets, and the government's investigative powers should not be used to serve private ends, or to cause harm or embarrassment unrelated to proper investigative purposes. Billions of private messages should not become available for public display merely because a business entity is swept up in a government investigation, either as a target, a victim, or a source of information. A wide range of in-house communications, in the hands of a competitor or a third party, including the press or trial lawyers, could be deployed to harm the company, its shareholders and employees. It is improper and abusive for the government's broad investigative power to be used to serve private ends and cause private injury.

On March 1, 2011, the Supreme Court unanimously decided that "personal privacy" is a term that is not defined in the statute, and its ordinary meaning does not include the privacy interests of corporations. Chief Justice Roberts issued the Court's opinion, citing other sections of FOIA where personal privacy has been interpreted to include only an individual's privacy interests. As a result of the decision, companies that provide information to the government will only be able to argue that it should not be publicly disclosed because it falls within Exemption 4 of FOIA, relating to "trade secrets and commercial or financial information obtained from a person and privileged or confidential."

The Supreme Court decided 6/27/05 that the Federal Communications Commission acted lawfully when it classified cable modem service as an “information service,” subject to minimal regulation under the Communications Act of 1934, and not also as a “telecommunications service.” In the decision under review, the Ninth Circuit declined to defer to the FCC’s interpretation of the Act, because that interpretation conflicted with circuit precedent. The Supreme Court held, however, that a court’s prior interpretation of a statute does not trump an agency construction otherwise entitled to Chevron deference. The only exception is when the earlier court decision holds that a statute is clear and no room is left for agency discretion. Here, the FCC’s interpretation of “telecommunications service” as not encompassing cable broadband is entitled to deference, because the Act is ambiguous as to what it means to “offer” telecommunications and the FCC made a reasonable policy choice. This decision is important to any business regulated under the Communications Act, and to all businesses affected by agency interpretations of statutes.

Decision Below: 345 F.3d 1120 (9th Cir. 2004). Case # 04-277, National Cable & Telecom Association v. Brand X Internet Services.

The Supreme Court 5/13/02 upheld the authority of the Federal Communication Commission (the “FCC”) to promulgate certain regulations under the Telecommunications Act of 1996 (the “Act”). The challenged regulations, among other things, (1) required state utility commissions to set the rates charged by incumbent local telephone service companies for leasing network elements in keeping with a prescribed "forward-looking economic cost" calculation, and (2) required incumbents to combine such elements at the request of new entrants leasing these elements from them. Several incumbent companies challenged these regulations as beyond the FCC’s authority under the Act. The Supreme Court held that the plain language of the Act authorized the FCC to set rates on a "forward-looking" basis untied to the incumbents’ investments. The Court rejected the incumbents’ argument that the particular methodology prescribed by the FCC exceeded the FCC's authority, finding that the challenged method was a reasonable means to establish “just and reasonable” rates as allowed by the Act. Finally, the Court held that the FCC could require incumbents to combine network elements, finding that the language of the Act was ambiguous in this regard and that the FCC's rule was reasonable under Chevron. Justice Breyer, joined in part by Justice Scalia, dissented, disagreeing with the Court's conclusion "that the specific pricing and unbundling rules at issue . . . Are authorized by the Act.” This opinion is important to companies operating in the telephone industry.

This case involves regulation of commercial speech. GNOB represents broadcasters who want to broadcast advertisements for gambling activities that are licensed and legal in Louisiana and Mississippi. The broadcasters have refrained from doing so in fear of criminal prosecution and sanctions pursuant to 18 U.S.C. § 1304 and the corresponding FCC regulation. Section 1304 prohibits broadcast advertising of "any advertisement of, or information concerning any lottery, gift enterprise, or similar scheme, offering prizes dependent in whole or in part upon lot or chance."

The Supreme Court held 6/14/99 this statute violates the First Amendment. Applying the four-part test of Central Hudson Gas & Electric Corporation v. Public Service Commission of New York, 447 U.S. 557 (1980), the Court held that § 1304 and the FCC regulations implementing it did not directly and materially advance the government’s asserted interest in alleviating the social costs of casino gambling. Nor had the government shown that the prohibition was narrowly tailored to serve this asserted interest.

This case is extremely important to manufacturers because it continues to provide protection to speech relating to the sale of legal products and services.