#MeToo and What Men and Women Are Willing to Say and Do

SHERRY F. COLB

Cornell Law professor Sherry F. Colb explores why people have such strong feelings about the #MeToo movement (whether they are advocates or opponents) and suggests that both sides rest their positions on contested empirical assumptions about the behavior of men and women. Colb argues that what we believe to be true of men and women generally contributes to our conclusions about the #MeToo movement and our perceptions about how best to handle the accusations of those who come forward.

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T-Mobile Northeast LLC v. The Town of Barnstable

Court: US Court of Appeals for the First Circuit

Docket: 19-2121

Opinion Date: August 7, 2020

Judge: Selya

Areas of Law: Communications Law

The First Circuit affirmed the decision of the district court denying two local residents' (Appellants) motion to intervene in an action brought T-Mobile Northeast LLC pursuant to the Telecommunications Act of 1996, holding that the district court neither erred nor abused its discretion in denying the motions to intervene. T-Mobile sought to operate a wireless telecommunications facility in an existing church steeple in a community in Cape Cod. When T-Mobile was unsuccessful in obtaining the required municipal permissions it sued the Town of Barnstable, two of its agencies, and several municipal officials. Appellants moved to intervene on the grounds that they were abutting landowners who had a stake in the outcome of the case. The district court summarily refused the requests for intervention. The First Circuit affirmed, holding that the district court did not abuse its discretion in denying Appellant's motions to intervene.

Mey v. DIRECTV, LLC

Court: US Court of Appeals for the Fourth Circuit

Docket: 18-1534

Opinion Date: August 7, 2020

Judge: Allison J. Rushing

Areas of Law: Arbitration & Mediation, Communications Law, Consumer Law, Contracts

The Fourth Circuit vacated the district court's order denying DIRECTV's motion to compel arbitration in an action brought by plaintiff, alleging violations of the Telephone Consumer Protection Act (TCPA). Plaintiff alleged that defendants called her cell phone to advertise DIRECTV products and services even though her telephone number is listed on the National Do Not Call Registry. Because plaintiff signed an acknowledgement expressly agreeing to the arbitration provision of the Wireless Customer Agreement with AT&T, which provision applies to her as an authorized user, the court rejected plaintiff's argument that she did not form an agreement to arbitrate. The court held that plaintiff formed an agreement to arbitrate with DIRECTV where the ordinary meaning of "affiliates" and the contractual context convinced the court that the term includes affiliates acquired after the agreement was signed. Furthermore, in light of the expansive text of the arbitration agreement, the categories of claims it specifically includes, and the parties' instruction to interpret its provisions broadly, the court must conclude that plaintiff's TCPA claims fall within the scope of the arbitration agreement. Therefore, the court remanded for further proceedings.

First Choice Chiropractic, LLC v. DeWine

Court: US Court of Appeals for the Sixth Circuit

Dockets: 19-4092, 20-3038

Opinion Date: August 13, 2020

Judge: Gibbons

Areas of Law: Civil Rights, Communications Law, Constitutional Law, Health Law

Adopted in 2019, Ohio Revised Code 1349.05(B) states: No health care practitioner, with the intent to obtain professional employment for the health care practitioner, shall directly contact in person, by telephone, or by electronic means any party to a motor vehicle accident, any victim of a crime, or any witness to a motor vehicle accident or crime until thirty days after the date of the motor vehicle accident or crime. Any communication to obtain professional employment shall be sent via the United States postal service. Subsection (C) provides the same restrictions but with regard to the agents of health care practitioners. The plaintiffs provide chiropractic services; one plaintiff is a referral service that identifies and contacts prospective patients for health care providers. The plaintiffs claim that they “all rely upon advertising and marketing techniques that permit prompt contact with victims of motor vehicle and pedestrian accidents.” They alleged that the statute violates their constitutional rights to free speech and equal protection. The Sixth Circuit affirmed the district court in denying relief. The plaintiffs failed to show a substantial likelihood of succeeding on the merits of their free speech and equal protection claims; “strong” precedents foreclosed the plaintiffs’ challenges.

City of Portland v. United States

Court: US Court of Appeals for the Ninth Circuit

Dockets: 18-72689, 19-70490, 19-70123, 19-70124, 19-70125, 19-70136, 19-70144, 19-70145, 19-70146, 19-70147, 19-70326, 19-70339, 19-70341, 19-70344

Opinion Date: August 12, 2020

Judge: Mary Murphy Schroeder

Areas of Law: Communications Law, Government & Administrative Law

The Ninth Circuit granted in part and denied in part petitions for review of three FCC orders issued in 2018 concerning the newest generation of wireless broadband technology known as "5G." Two of the orders, known as the Small Cell Order and Moratoria Order, spell out the limits on local governments' authority to regulate telecommunications providers. The third order, known as the One Touch Make-Ready Order, was intended to prevent owners and operators of utility poles from discriminatorily denying or delaying 5G and broadband service providers access to the poles. The panel held that, given the deference owed to the agency in interpreting and enforcing this important legislation, the Small Cell and Moratoria Orders are, with the exception of one provision, in accord with the congressional directive in the Telecommunications Act of 1996, and not otherwise arbitrary, capricious, or contrary to law. The exception is the Small Cell Order provision dealing with the authority of local governments in the area of aesthetic regulations. The panel held that to the extent that provision requires small cell facilities to be treated in the same manner as other types of communications services, the regulation is contrary to the congressional directive that allows different regulatory treatment among types of providers, so long as such treatment does not "unreasonably discriminate among providers of functionally equivalent services." The panel also held that the FCC's requirement that all aesthetic criteria must be "objective" lacks a reasoned explanation. The panel upheld the third order, holding that the FCC reasonably interpreted Section 224 of the Act as a matter of law, and the order is not otherwise arbitrary or capricious. The panel rejected petitioners' challenges to four secondary aspects of the order regarding rules for overlashing, preexisting violations, self-help, and rate reform.

Mississippi Dept. of Revenue v. SBC Telecom, Inc. et al.

Court: Supreme Court of Mississippi

Citation: 2019-CA-00917-SCT

Opinion Date: August 13, 2020

Judge: Chamberlin

Areas of Law: Business Law, Communications Law, Government & Administrative Law, Tax Law

At issue in this appeal was the computation of the broadband credit limits that a taxpayer may use against its franchise-tax and income-tax liabilities. During the tax periods at issue, AT&T Mobility II, LLC, and BellSouth Telecommunications operated telecommunications enterprises and made significant investments in broadband technology developments throughout Mississippi, generating Broadband Investment Credits (Broadband Credits) under Mississippi Code Section 57-87-5. BellSouth Mobile Data, SBC Alloy Holdings, New BellSouth Cannular Holdings, New Cingular Wireless Services, SBC Telecom, and Centennial were all direct or indirect corporate owners of AT&T Mobility II. The taxpayers here each filed a separate franchise-tax return and were included as affiliated group members in the combined corporate income-tax return filed on behalf of the affiliated group. The Mississippi Department of Revenue (MDOR) determined that the broadband credits the taxpayers had claimed had been improperly applied to an amount greater than the credit cap of 50 percent of the taxpayers’ tax liabilities according to Mississippi Code Section 57-87- 5(3) (Rev. 2014). The MDR disallowed portions of the broadband credits claimed by the taxpayers and assessed additional franchise taxes, interest and penalties to the taxpayers separately on several dates between December 22, 2014, and May 20, 2015. The taxpayers argue that each taxpayer is jointly and severally liable for the total combined income-tax liability of the affiliated group, therefore making the income-tax liability of each taxpayer the same as the total combined income-tax liability of the affiliated group. The chancellor granted summary judgment in favor of the taxpayers and ruled that the taxpayer’s tax liabilities under Chapters 7 and 13 of Title 271 of the Mississippi Code was the aggregate of the taxpayer’s separate franchise-tax liability and the total combined income-tax liability of the affiliated group. The Mississippi Supreme Court affirmed the chancellor's ruling on the credit-computation issue. "The plain and unambiguous language of Section 57-87-5 clearly limits broadband credits that a taxpayer may take in any given year to 50 percent of the aggregate of the taxpayers’ franchise-tax liability and the total combined income-tax liability of the affiliated group."