Monthly Archives: August 2012

Cable Act, Florida (FL), Judge Thomas Wilson (FL)

New Florida Rule: CABLE OPERATORS WHO ARE ALSO ISPs ARE BOUND BY THE CABLE ACT.

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Umm… Did Judge Wilson just suggest that ISPs fall under the CABLE ACT??

I was just reading DieTrollDie’s article, and looking at Judge Wilson’s ruling [in the Malibu Media, LLC v. John Does 1-18 (Case No. 8:12-cv-01419) case in the U.S. District Court for the Middle District of Florida], it appears as if he just suggested that ISPs fall under the CABLE ACT (See Order, Doc 14, p. 5 of 7).

“ORDER: …3. Each of the ISPs that qualify as a “cable operator” under 47 U.S.C. 522(5) shall comply with 47 U.S.C. 551(c)(2)(B), which provides that:

A cable operator may disclose [personally identifiable information] if the disclosure is … made pursuant to a court order authorizing such disclosure, if the subscriber is notified of such order by the person to whom the order is directed.”

Now many of you know that I have wrapped my head around the Cable Communications Policy Act of 1984 (a.k.a., “the Cable Act”) so many times, and it surprises me that now TWO judges have suggested that a law written in 1984 applies to the internet (which was not even in existence at the time the Cable Act was written).

As we discussed on Monday in the “Judge Facciola opens up a can of worms with the Cable Act” article, 1) DC Judge Facciola argued whether an ISP would violate the Cable Act by sharing subscriber information. He concluded that assuming arguendo that the Cable Act did apply [noting that DC has not yet ruled on the issue of whether the Cable Act applies to ISPs], that Cablevision would not violate the statute if it complied with the copyright troll’s subpoena. Now, we have 2) Judge Wilson explicitly ordering “each of the ISPs that qualify as a “cable operator” under the Cable Act to comply with the subpoena.

In its essence, the Florida Middle District just ruled that ISPs WHO ARE ALSO CABLE OPERATORS ARE BOUND BY THE CABLE ACT STATUTES.

This is fascinating to me (especially since these judges would be going against significant case law from other districts stating that the Cable Act does NOT apply to ISPs) because it appears as if Judges are trying to corner the ISPs into the confines of the Cable Act (which makes my May 5, 2011 argument of how to sue ISPs for violating the Cable Act possibly viable). I have not even considered the MANY IMPLICATIONS of what happens if — as a rule — ISPs became bound by the Cable Act provisions? What else would change?

Looking at this logically, it makes sense to me that an Internet Service Provider (“ISP”) can be a “cable operator” bound under the Cable Act. Why? Because cable companies (Cablevision, Comcast, Verizon, etc.) *ALL* have taken a HUGE SHARE of the internet subscriber business. Cable companies today offer internet services to their subscribers. Thus, it makes sense that an ISP can be a “cable operator,” and thus they can be bound by the Cable Act.

After all, if hypothetically a huge oil company such as Exxon started selling their Esso Tiger toy dolls (remember these?), wouldn’t they also be obligated to the laws that govern child safety laws regarding lead paint? How can an ISP say “we’re no longer a cable operator, we’re an ISP” when the same customer who pays for their internet connection pays them for their cable service?

In other words, I am starting to form the opinion that CABLE COMPANIES SOLICITED INTERNET BUSINESS AND BECAME ISPs. THEY ARE STILL CABLE COMPANIES AND THEIR SERVICES SHOULD STILL BE BOUND BY THE CABLE ACT WHICH GOVERNS CABLE COMPANIES.

Wow, this is a can of worms.

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Cable Act, District of Columbia (DC), Federal Judges

Judge Facciola opens up a can of worms with the Cable Act.

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These old cases keep creeping back up on us, and I am quite frankly dumbfounded that they are still alive so many months later. In the Openmind Solutions, Inc. v. Does 1-565 (Case No. 1:11-cv-01883) case in the District of Columbia, Judge Facciola brought back to life what was a stale, dormant case by answering an unanswered question of whether it would violate the Cable Act if Cablevision complied with the subpoenas and shared subscriber information with the copyright trolls.

Cablevision’s argument resembled a failed argument which I posted on my blog in May, 2011 for literally a day before puling it from the website.

[FOR PURPOSES OF CLARITY, I was writing two years ago about whether you can sue an ISP based on the Cable Act.  Then, I was referring to subsection (f) of the statute; here, Cablevision is referring to subsection (c) of the statute, asserting that the “checklist” of requirements under the Cable Act was not met and thus the subpoena was defective and they didn’t have to comply.]

More than two years ago, I wrote an article entitled “How an attorney can sue an ISP for disclosing a subscriber’s information“. In that article, I stated that a John Doe Defendant could possibly sue his ISP for violating the Cable Communications Policy Act of 1984 (better known as the “Cable Act”). Shortly after writing the article, however, I did further research into the matter and I found that there was a significant amount of case law which held that this statute DID NOT APPLY TO ISPs. Apparently, however, I am not the only attorney who stumbled upon this statute.

In the Openmind Solutions, Inc. v. Does 1-565 case, Cablevision asserted that according to the Cable Act (47 U.S.C. §551(c)(2)(B)), they would violate the statute if they complied with the subpoena issued to it (which makes me wonder why they have been complying in other cases since). On Friday, Judge Facciola disagreed simply because regardless of what the Cable Act says, the Federal Rules of Civil Procedure (“FRCP”) simply gives the court the power to force the ISPs to comply with the subpoenas, and the Cable Act is irrelevant to the issue. (Personal note: A judge can’t throw away a statute that conflicts with the rules! They must address the law and explain why it DOES or DOES NOT apply to the circumstances. They can’t ignore it and pretend the statute is not there!)

In short, the last time I took a look at this argument, I came to the conclusion that it was a very muddy issue. Anyone who wants to have a crack at this, please feel free to comment. I’m merely posting this article so that you understand what argument Cablevision was trying to assert, and why Judge Facciola ruled against it.

Once again, I feel that Judge Facciola didn’t properly address the issue of whether the Cable Act applied to copyright infringement statutes (and particularly to these bittorrent cases where his court has been ruling that John Doe defendants do not have standing to file motions to quash until they are “named” as defendants). In my opinion, Cablevision brought before the court the Cable Act statute, specifically, “47 USC §551 – Protection of subscriber privacy,” subsection “(c) Disclosure of personally identifiable information.” I keep asking myself, “how in the world does this NOT apply to our cases?!? (and if this does not apply, what statute does apply?)” EVEN THE CABLEVISION ISP ITSELF (a cable company) THOUGHT IT APPLIED TO THEM!

In sum, Cablevision brought before the court an issue — “how can I comply with the Federal Rules of Civil Procedure when this statute prohibits me from doing so?” At the very least, Judge Facciola should have ruled on whether the statute applies to these cases because instead, he said, “assuming it does apply, here’s why your argument is wrong.” My question is immediately, “assuming it does apply?!?” WHAT?!? WHAT ABOUT ALL THESE OTHER PARTS OF THE STATUTE? DO THEY APPLY TO ISPs TOO?

As a result of this ruling, Judge Facciola has reopened a copyright troll case that until now was pretty much in a coma.  As far as this Openmind Solutions, Inc. case is concerned, expect now to start getting subpoenas from Prenda Law Inc. because once again, Judge Facciola has sided with the copyright trolls and has let the extortion scheme continue.

…And as far as the Cable Act and 47 USC § 551? Judge Facciola has just opened up a can of worms.

[For those of you who want to read the statute on your own, it can be found at http://www.law.cornell.edu/uscode/text/47/551 ]

As far as the two documents which caused this mess, the original motion requesting that the judge rule on Cablevision’s motion applying the Cable Act to bittorrent lawsuits can be found here.

And, Judge Facciola’s ruling (the subject of this article) can be found here.

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CONTACT FORM: If you have a question or comment about what I have written, and you want to keep it *for my eyes only*, please feel free to use the form below. The information you post will be e-mailed to me, and I will be happy to respond.

NOTE: No attorney client relationship is established by sending this form, and while the attorney-client privilege (which keeps everything that you share confidential and private) attaches immediately when you contact me, I do not become your attorney until we sign a contract together.  That being said, please do not state anything “incriminating” about your case when using this form, or more practically, in any e-mail.