A California nonprofit that advocates for cellphone radiation warnings alleged a conflict of interest by a federal judge overseeing a dispute between CTIA and the city of Berkeley, California. CTIA is challenging in the 9th U.S. Circuit Court of Appeals the city’s cellphone warning ordinance for RF emissions (see 1609130045). In a news release Tuesday, the California Brain Tumor Association urged Judge Michelle Friedland to recuse herself from the three-judge panel hearing the case. The nonprofit alleged Friedland’s husband, Daniel Kelly, works as an engineer at Tarana Wireless, which designs 5G wireless equipment and is funded by AT&T and T-Mobile USA parent Deutsche Telekom. The U.S. carriers are members of CTIA. Berkeley City Council Member Maxwell Anderson said: “It is appalling to learn that a judge in this case may have possible wireless industry conflicts of interest. It is especially important this be investigated given Judge Friedland’s husband is a key employee of a firm linked to several major players in the trillion dollar wireless sector.” The nonprofit’s head, Ellen Marks, said she hasn’t submitted the allegations to the court. CTIA declined to comment. The court didn’t comment.

The Patent and Trademark Office's Patent Trial and Appeal Board was correct when it declared invalid an Intertainer patent for creating and distributing videos with clickable links, said the U.S Court of Appeals for the Federal Circuit in an opinion (in Pacer) Friday affirming PTAB's 2015 decision. Hulu had challenged the patent. Intertainer challenged PTAB's construction of various claim terms, but the Federal Circuit decision by Judges Raymond Chen and Kara Stoll and written by Sharon Prost dismissed those arguments. Intertainer didn't comment Monday.

U.S. District Judge Haywood Gilliam of San Francisco rejected DirecTV's motions for partial summary judgment in two actions brought by the FTC. In an order (in Pacer) Friday, Gilliam said DirecTV's evidence of screenshots of its website doesn't establish the absence of a genuine dispute over allegations it violated the Restore Online Shoppers Confidence Act on forms of internet marketing. He said the FTC doesn't have an obligation in its opposition to summary judgment to present evidence in opposition: "While the contents of the website do not appear to be disputed, the inferences to be drawn from those contents are vigorously disputed." The judge also said the court can't conclude that DirecTV's disclosures about premium channel promotion were adequate and sufficiently conspicuous and clear -- which the FTC is challenging in its lawsuit against DirecTV (see 1503110042). The FTC separately is seeking partial summary judgment on some of its claims (see 1609230003). Gilliam also approved an FTC motion for sealing of some exhibits containing sensitive business information. AT&T, which now owns DirecTV, on Monday said it "ensure[s] that all of our customers receive full information, multiple times, to allow them to make informed decisions about DirecTV services" and that it "will continue to vigorously defend against these allegations."

The Restore Online Shoppers' Confidence Act mandates material contractual terms be displayed clearly, making the U.S. District Court in San Francisco well within its rights to decide on the clarity and conspicuousness of DirecTV's website disclosures based on a review of the site, the FTC said Thursday in a motion (in Pacer) for partial summary judgment on its claims under ROSCA and on DirecTV's affirmative defenses. The agency is suing the direct broadcast satellite company for allegedly not properly communicating early cancellation fee terms to subscribers (see 1503110042). The FTC motion said it's clear DirecTV failed to disclose the material terms of its premium channel negative option in a conspicuous fashion. It also said the claim behind DirecTV's affirmative defense claims is that the company invited the FTC to resolve its investigation by joining a settlement negotiation with several states also pursuing similar claims against it, but the agency opted not to and then years later "sprung to sue DirecTV for that very same conduct covered in those multistate settlement terms." But the FTC said DirecTV's only basis for those claims is "unsupported conjecture and conclusory opinions" and it was never earnestly invited into the multistate settlement negotiations. It said there's no evidence of affirmative misconduct or unreasonable delay on the agency's part that would then be the basis of the affirmative defenses. AT&T, which now owns DirecTV, didn't comment Friday.

DirecTV's NFL Sunday Ticket itself isn't the problem, but the league/DirecTV agreements that restrain competition with Sunday Ticket and the telecasts it bundles are problematic, plaintiffs said Thursday in U.S. District Court in Los Angeles in an opposition (in Pacer) to the NFL defendants' motion to dismiss. The NFL and DirecTV jointly agreed to limit the number of broadcasts Sundays to three games, making consumers buy the Sunday Ticket bundle if they want to watch more/other games, said buyers of Sunday Ticket whose 27 separate class-action lawsuits were consolidated in May (see 1605240012). Defendants made out-of-market telecasts available only through DirecTV, preventing subscribers to other pay-TV services from having any access, the plaintiffs said, saying the result is Sunday Ticket pricing being far higher than any other major sports league subscription service. The NFL is the only major U.S. pro sports league selling its out-of-market package exclusively through a single multichannel video programming distributor, plaintiffs said. Such exclusivity also limits the competition NFL telecasts would face otherwise, letting broadcasters get higher advertising profits and distribution fees, said the plaintiffs, who are alleging DirecTV and the NFL broke antitrust laws (see 1512300027). There was similar class-action litigation against Major League Baseball and the NHL (see 1601210032). Sunday Ticket was first offered in the 1990s, and has had legal and regulatory challenges every few years, one lawyer who has done work for the NFL told us. DirecTV in a motion (in Pacer) to compel arbitration and stay proceedings last month argued the plaintiffs committed via their customer agreements to arbitrate disputes with DirecTV and should be ordered to do so. Far from being "supra-competitive" in its pricing, DirecTV has a distribution agreement that's exactly the type of competition via exclusive contracts that antitrust laws encourage, it said. Judge Beverly O'Connell in an order Friday gave the plaintiffs an Oct. 3 deadline for filing a memorandum in opposition. The NFL defendants, in a motion (in Pacer) to dismiss in August, said the plaintiffs show no facts to bolster the claim of anticompetitive effects and to identify any alternative arrangement that would be more competitive.

A federal judge tentatively signed off on a settlement in a class-action complaint alleging Fair Credit Reporting Act (FCRA) violations by Dish Network and background check company Sterling Infosystems, said a preliminary settlement approval order (in Pacer) filed Friday in U.S. District Court in Manhattan. Judge Lorna Schofield said the settlement authorization class will be all Dish contractor technicians who were subject to a Dish consumer report after Nov. 30, 2010, and who received forms 2 or 3 before Dish received the summary consumer report but weren't provided any other relevant forms. The adverse action class will be all Dish contractor technicians or technician applicants whose summary consumer reports were given to Dish and who were adjudicated as "high" risk after Nov. 30, 2010.A final hearing Jan. 17 will determine whether the final settlement is fair and to consider any objections. The 2012 lawsuit alleges Dish and background check company Sterling violated the federal FCRA in their use of credit reports to do background checks on prospective employees or subcontractors (see 1512160017). The joint settlement motion (in Pacer) filed in August said Dish and Sterling agreed to put $1.175 million into a settlement fund, with the money minus fees and expenses to be distributed pro rata to settlement class members who submit claim forms, with adverse action class members receiving allocations of six times the amount that goes to authorization class members.

DirecTV and MasTec Advanced Technologies, one of its contractors, were out of bounds firing a group of employees who griped to a Florida TV news station about pay policies, the U.S. Court of Appeals for the D.C. Circuit ruled Friday, upholding a 2011 National Labor Relations Board ruling. DirecTV and MasTec said the workers' comments weren't protected concerted activity because of malicious untruths and flagrant disloyalty. Judges Judith Rogers and Sri Srinivasan -- who wrote the majority opinion (in Pacer) -- said the court's interest isn't where that line between protected and unprotected activity sits but on the correctness of NLRB's finding that the workers' appeal is on the protected side of that line. Judge Janice Brown dissented. The pay policy required MasTec installers to hook up DirecTV set-top boxes to customer phone lines, with MasTec setting up financial incentives and punishments for hook-up quotas, the D.C. Circuit ruling said. MasTec fired nearly all technicians who were part of a TV news broadcast about the policy, the court said. An NLRB administrative law judge said going public is protected activity, but their statements were so disloyal and disparaging that they weren't protected. The full NLRB disagreed that the comments to the TV news crew reached that level. Judges' decision Friday said MasTec workers' on-air comments "were neither so disloyal and incommensurate with their labor grievances nor so maliciously untrue as to fall outside" of National Labor Relations Act (NLRA) protections. They also dismissed DirecTV arguments that because the direct broadcast satellite company is the fired workers' employer's customer, the workers had no protected rights to criticize it, ruling DirecTV clearly committed an unfair labor practice in causing MasTec to do the firings. In her dissent, Brown said the workers crossed the line from labor dispute to public disparagement aimed at eroding the companies' reputations. "This is not a close case," Brown said, pointing to the workers' telling the station that MasTec was requiring them to lie to customers when it had not done so, and was trying to have them scare customers into accepting the service: "By soberly repeating that joke to a public audience without its context and as though it were a serious instruction, these technicians left the NLRA and its protections behind." DirecTV in a statement said it agreed with the dissent and is "considering [its] options.” MasTec didn't comment.

Chinese OEM Tomtop Group isn't an HDMI licensee, but is selling AV products with counterfeit HDMI logos over its e-commerce website and via third-party online retailers Alibaba, Amazon, DHGate, eBay and Taobao, HDMI Licensing alleged Wednesday in a complaint (in Pacer) filed in U.S. District Court in Los Angeles. U.S. Customs and Border Protection has seized a “plethora” of HDMI-infringing Tomtop products entering the U.S. since 2012, but HDMI Licensing was unsuccessful in shutting down the illegal activity through cease-and-desist letters and other measures, the complaint said. The infringing products “bear markings that are identical, or confusingly similar to,” actual HDMI logos and “provide consumers with a false assurance that the Infringing Products that they have purchased are reliable and conform to HDMI Licensing’s high standards and rigorous compliance testing when, in fact, they do not,” the complaint said. “HDMI Licensing has suffered and is continuing to suffer irreparable harm and financial injury as a result” of Tomtop’s behavior because the infringing products “are likely of a sub-standard quality, unreliable, and/or unable to deliver the exceptional signal and image quality offered by Licensed Products,” it said. Consumers who use the products “will falsely attribute” any “negative experiences” with them to HDMI Licensing, and that “is likely to erode the substantial goodwill that HDMI Licensing has spent years and millions of dollars in developing,” it said. Tomtop representatives didn’t comment Thursday.

Songwriters of North America led the filing Tuesday of a lawsuit against DOJ over the Antitrust Division's controversial decision in its review of the American Society of Composers, Authors and Publishers and Broadcast Music Inc. consent decrees, as expected (see 1608040066). SONA sued on behalf of songwriters Michelle Lewis, Tom Kelly and Pam Sheyne. The suit, filed in the U.S. District Court in Washington, D.C., also targets Attorney General Loretta Lynch and Antitrust head Renata Hesse. It follows an earlier BMI legal challenge of DOJ's concluding statement in the case and an ASCAP-led lobbying effort in Congress. Language in DOJ's ruling clarifying that the department continues to believe the existing decrees mandate 100 percent licensing is a violation of songwriters' property rights because of the language's negative effect on songwriting partnerships, the songwriters said in the complaint (in Pacer). The language “is an illegitimate assertion of agency power in gross violation of plaintiffs’ due process rights, copyright interests and freedom of contacts, and needs to be set aside,” the complaint said. DOJ didn't comment Wednesday.

CTIA attacked the validity of a Berkeley, California, cellphone warning ordinance on RF emissions exposure, in oral argument Tuesday at the 9th U.S. Circuit Court of Appeals (see 1608260019). “Today we presented our argument that the lower court created new law in this case that dramatically weakens First Amendment protections and contradicts binding decisions of the Ninth Circuit as well as the Supreme Court,” a CTIA spokeswoman emailed. “The Ninth Circuit previously invalidated a similar cellphone ordinance in San Francisco.” The FCC, health experts and scientific evidence show the Berkeley warnings are misleading, she said. The city didn’t comment.