LSSI DATA CORP., Plаintiff-Appellee, v. COMCAST PHONE, LLC, Defendant-Appellant.
No. 11-12221.
United States Court of Appeals, Eleventh Circuit.
Sept. 26, 2012.
In the absence of any controlling precedent about this issue, “we conclude [that] the district court‘s alleged error is not ‘obvious’ or ‘clear under current law.‘” Humphrey, 164 F.3d at 588. “Without a ‘plain’ error, we lack authority to reverse the district court.” Id. (citing United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 1777, 123 L.Ed.2d 508 (1993)). Dortch‘s argument fails.
C. Dortch‘s Judgment of Acquittal Was Inadmissible.
Dortch argues that the district court abused its discretion when it ruled that Dortch was not allowed to introduce evidence that he was acquitted of state charges brought against him in connection with Milanesi‘s controlled purchase of Lortabs from Dortch. Dortch reasons that, because the government introduced evidence relating to the controlled purchase, he should have been permitted to introduce evidence that he was acquitted of charges based on that conduct. We disagree.
“Judgments of acquittal are hearsay.” United States v. Irvin, 787 F.2d 1506, 1516 (11th Cir.1986). “Unlike judgments of conviction, which may be аdmitted under Rule 803(22) of the Federal Rules of Evidence for some purposes, and used for impeachment under Rule 609, judgments of acquittal are not covered by an exception to the rule against admission of hearsay.” Id. at 1516-17 (citing
IV. CONCLUSION
We AFFIRM Dortch‘s convictions.
Michael C. Sloan, Robert G. Scott, Davis, Wright Tremaine, LLP, Washington, DC, Samuel S. Woodhouse, III, The Woodhouse Law Firm, LLC, Atlanta, GA, Jaime A. Bianchi, White & Case, LLP, Miami, FL, for Defendant-Appellant.
Pamelа Louise Smith, Jacob Matthew Lewis, Austin Schlick, Richard Welch, FCC, Washington, DC, for Amicus Curiae FCC.
Before CARNES, MARTIN and JORDAN, Circuit Judges.
MARTIN, Circuit Judge:
Comcast Phone, LLC (Comcast) appeals the District Court‘s grant of preliminary injunctive relief, compelling the telecommunications company to provide its directory assistance listing data directly to LSSi Data Corporation (LSSi). In the District Court, LSSi alleged that Comcast‘s refusal to provide LSSi, and similar companies, with direct access to its directory assistance listing data while providing this access to Targus Info Corporation (Targus) cоnstitutes a violation of Sections 202, 222(e), and 251(b)(3) of the Communications Act of 1934 (the Act). See
I. FACTUAL BACKGROUND
A. INDUSTRY CONTEXT
When local exchange carriers (LECs), such as Comcast, issue a telephone number and provide services to a customer, they collect information about that customer, such as her name, phоne number, and address.1 This information is known as a “directory listing.”2
The directory listings of a LEC‘s customers amount to a significant amount of
When the databases of several LECs are combined, the result is a fairly comprehensive collection of the contact information for residents of a particular community, which can be used in providing directory-related services. See
B. REGULATORY CONTEXT4
When Congress amended the Communications Act in 1996, it sought to create a “procompetitive, deregulatory national policy framework” that would speed the development and dissemination of telecommunications technology. To that end, Congress took steps to liberalize the telecommunications industry as a whole in order “to encourage (and sometimes to mandate) new competition.” Global Crossing Telecomm., Inc. v. Metrophones Telecоmm., Inc., 550 U.S. 45, 50, 127 S.Ct. 1513, 1517, 167 L.Ed.2d 422 (2007).
Since the 1996 amendments, the FCC has made clear its view that a competitive telecommunications market has as a “necessary element” the competitive provision of directory assistance, and that satisfying this “necessary element” requires that LECs give directory assistance providers access to their directory assistance listing databases (DALDs) on a nondiscriminatory basis.
Mindful of this broader context, we turn now to the history of dealings between these two parties.
C. DEALINGS BETWEEN COMCAST AND LSSI
LSSi is a certified LEC and a provider of directory assistance services, call completion services, data aggregation services,
On May 15, 2007, Comcast and LSSi entered into an agreement by which Comcast provided access to its raw directory listing data in exchange for LSSi helping to process and distribute that data. The 2007 agreement was renewable year-upon-year, and either party could decide not to renew the agreement so long as they gave thirty days notice before termination.
On April 14, 2011, Comcast sent LSSi a letter terminating their arrangement. Consistent with the requirements of the 2007 agreement, Comcast informed LSSi that it would cease providing its raw customer data directly to LSSi effective May 15, 2011.
Instead of its prior arrangement with LSSi, Comcast now has a contract with Targus, making Targus the exclusive collator, distributor, and processor of its data. Under this new arrangement, if LSSi wishes to continue accessing Comcast‘s data, then LSSi will have to enter into an agreement with Targus to purchase that access.
According to Comcast, its own customers receive directory assistance services from a company called “kgb USA,” and kgb USA will access Comcast‘s DALD from Targus at the same rates, terms, and conditions as all other directory assistance service providers, including LSSi. Thus far, Comcast has not disclosed the terms of its agreement with Targus, or the terms of the license agreement between Targus and kgb USA.
II. PROCEDURAL HISTORY
On April 18, 2011, LSSi filed its complaint and a motion for a temporary restraining order in the Northern District of Georgia. LSSi contends that Comcast‘s arrangement to provide access to its data only through Targus is discriminatory under Sections 202, 222(e), and 251(b)(3) of the Act. See
The District Court held a two-day evidentiary hearing in April 2011. On May 4, 2011, the District Court issued an order construing LSSi‘s request for a temporary restraining order as a request for a preliminary injunction, and granting the injunction rеquest, contingent on LSSi filing a $100,000 bond.
The District Court found that “Comcast has refused to provide directory assistance listing data to LSSi on terms or conditions as favorable as those given by Comcast to Targus” and that “Comcast has also refused to disclose to LSSi the terms of its arrangements with other recipients of
In addition, the District Court found that the Comcast-Targus arrangement wоuld cause LSSi to lose competitive position and market share, and to suffer damage to its reputation and customer relationships. From that, the District Court concluded that LSSi would experience irreparable injury if a preliminary injunction were not granted. The District Court also concluded that the other two requirements for granting a preliminary injunction—balance of injuries and public interest—were met.
Having made these four findings, the District Court granted LSSi‘s preliminary injunction request, enjoining Comcast “from failing to provide direсtory assistance listing data directly to LSSi on a complete, accurate, timely, and nondiscriminatory basis.” LSSi filed the $100,000 injunction bond the next day, and the injunction went into effect. Still in place, the injunction requires Comcast to provide LSSi with direct access to its data.7
Comcast timely filed its Notice of Appeal of the injunction on May 13, 2011. On March 13, 2012, the District Court granted a consent motion to stay all proceedings pending the resolution of this appeal.
III. STANDARD OF REVIEW
This Court reviews “the ultimate decision of whether to grant a preliminаry injunction for abuse of discretion, but [it reviews] de novo determinations of law made by the district court en route.” United States v. Endotec, Inc., 563 F.3d 1187, 1194 (11th Cir.2009) (quotation marks omitted). “Questions of law subject to de novo review include questions of statutory and regulatory construction.” Id. However, this Court reviews “findings of fact upon which the decision to grant equitable relief was made under the clearly erroneous standard.” Id. (quotation marks omitted).
IV. DISCUSSION
As the party seeking a preliminary injunction, LSSi must demonstrate: (1) a substantial likelihood of success on the merits; (2) that irreparable injury will be suffered unless the injunction is issuеd; (3) that the threatened injury to LSSi outweighs whatever damage the proposed injunction might cause Comcast; and (4) that, if issued, the injunction would not be adverse to the public interest. BellSouth Telecomm., Inc. v. MCIMetro Access Transmission Servs., LLC, 425 F.3d 964, 968 (11th Cir.2005). This Court will reverse the grant of a preliminary injunction if it concludes that LSSi has failed to satisfy any of these four elements. See, e.g., Warren Publ‘g, Inc. v. Microdos Data Corp., 115 F.3d 1509, 1520 (11th Cir.1997) (en banc) (vacating a preliminary injunction because the District Court erroneously found that the plaintiff had established a substantial likelihood of success on the mеrits).
In this appeal, Comcast argues that the District Court misapplied the Act‘s nondiscrimination provisions, and therefore abused its discretion in concluding that LSSi had shown a substantial likelihood of success on the merits. Comcast also ar-
The first question before us is whether the District Court abused its discretion in concluding that LSSi has shown “a substantial likelihood of success on the merits” of its claim. BellSouth Telecomm., 425 F.3d at 968. We conclude that the District Court did abuse its discretion in that way, so we need not address the irreparable injury issue. See Warren Publ‘g, 115 F.3d at 1516.
Comcast has made four arguments for why the District Court erred in interpreting the nondiscrimination obligation imposed by the Act. First, Comcast makes the overarching argument that the Act contemplates carriers’ use of agents to fulfill their statutory obligations, and that Comcast is simply meeting its DALD access obligations through such an agent, Targus. Second, it contends that LSSi cannot show discrimination in Comcast‘s DALD provision under Section 251(b)(3) because Targus and LSSi compete in an area not covered by the Act—data aggregation and distribution, rather than directory assistance services. Third, and similarly, Comcast argues that LSSi cannot show discrimination under Section 222(e) because Targus does not compete with LSSi in publishing directories. And fourth, Comcast argues that Section 202(a) does not apply because the provision of directory listing information is not a service provided “in connection with” the communications services provided by Comcast.
We requested additional guidance from the FCC about how to construe the Act‘s nondiscrimination provisions, in hopes that we could better address Comcast‘s arguments. The FCC responded with an amicus brief in support of neither party, expressing a view rooted in its construction of Sections 202(a), 222(e), and 251(b)(3) as well as its regulations and precedent. After having the benefit of the views of the FCC, both LSSi and Comcast then took the opportunity to respond to the FCC‘s brief.
To analyze whether LSSi‘s claim constitutes a violation of
We turn first to
At the same time, we do recognize that if Comcast, through its agent Targus, prоvides the information to Comcast‘s own directory publishing operation or affiliate on preferential terms, Comcast would be violating
A similar problem arises for LSSi upon our consideration of whether Comcast‘s arrangement with Targus violates
However, Targus is Comcast‘s agent and therefore Comcast, through Targus, still has the same obligation to provide nondiscriminatory access to the data as if it were distributing it directly. Therefore, if the access Comcast provides (through Targus) to LSSi is not equal to the access Comcast
We last consider
LSSi argues that Comcast discriminates by refusing to provide companies other than Targus direct access to Comcast‘s raw directory listing data. Because we find LSSi‘s argument fails under the third step of this three-step inquiry, we will confine our discussion to that step: whether any differences in Comcast‘s treatment of Targus and LSSi are reasonable.
In that regard, LSSi has not provided any evidence to support a finding that Comcаst‘s decision to hire a single data aggregation company as an agent to facilitate its obligations to distribute directory listing data was unjust or unreasonable. Targus, as Comcast‘s agent, must comply with all data distribution requirements Comcast would have to follow if it were directly distributing the data. Further, while LSSi expressed concern that its inability to obtain the listing data directly from Comcast will hurt its competitiveness in the directory assistance listing market, LSSi provided no evidence that other companies in that market, including Comcast, have direct access to Comcast‘s DALD. As far as we can tell from the record available to us, no directory publisher, directory assistance provider, or LEC would have direct access to Comcast‘s DALD, thereby giving them a competitive advantage in the market for these services. Even Comcast‘s data assistance provider, kgb USA, purchases the DALD from Targus.
Our analysis on this is consistent with the FCC‘s interpretation. In responding to our request for guidance, the FCC said that “a LEC‘s use of an agent to provide access to its [directory assistance] and [subscriber list information] databases does not necessarily constitute a violation of sections 222(e), 251(b)(3), or 202(a) of the Act; nor would the agent‘s status as a competitor in acquiring [directory assistance] and [subscriber list information] for other LECs.” The FCC thus made clear its view that LECs may use an agent to fulfill their access obligations under the Act, so long as the LEC does not discriminate through its agent. See
The real question presented here, then, is not whether Targus is an agent of Comcast, or whether Comcast treated Targus, which is only involved with data aggregation and distribution, differently than LSSi. Instead, it is whether Comcast, as the providing LEC, through Targus, as its agent, discriminates in one of two ways: 1) between requesting LECs and publishers or 2) between those companies and itself. See
Asking what we understand to be the correct question—whether Comcast through its agent Targus will discriminate between itself and LSSi—we conclude that LSSi has not shown a substantial likelihood of success on the merits. Before the burden of proof could be shifted to Comcast,11 LSSi first had to “make some prima facie showing.” CBS Broad., Inc. v. EchoStar Comm. Corp., 265 F.3d 1193, 1202 (11th Cir.2001). This “ensures that the party opposing a preliminary injunction is not saddled with the burden of production, initially, and that the proponent of this extraordinary and drastic remedy is required to clearly establish the burden of persuasion as to the four requisites.” Id. (quotation marks omitted). LSSi failed to meet that threshold burden.
Our ruling here is limited to the propriety of the preliminary injunction issued by the District Court against Comcast. We conclude that it was not properly granted. To be clear, our review of this record reveals that the potential for unlawful discrimination is present: Comcast, through Targus, may be giving itself and its own directory assistance provider preferential treatment. However, LSSi has not yet established, and the District Court did not find, that LSSi is substantially likely to succeed on a claim that this type of discrimination is present in violation of the Act. Further proceedings and discovery,
V. CONCLUSION
Having concluded that LSSi failed to establish a substantial likelihood of success on the merits of its discrimination claims against Comcast, “we need not address the additional elements required for a preliminary injunction.” Warren Publ‘g, 115 F.3d at 1516. Instead, we vacate the preliminary injunction and remand the case to the District Court for further proceedings consistent with this opinion.
VACATED and REMANDED.