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Klimas v. Comcast Cable-Class Action Defense Cases: District Court Properly Granted Defense Motion To Dismiss Class Action Under Cable Communications Policy Act Because Act Does Not Apply To Internet Services Sixth Circuit Holds

Sixth Circuit Holds that Putative Class Action Against Cable Company for Alleged Violations of Federal Cable Communications Policy Act Arising Out of Internet Service Provided to Plaintiff Properly Dismissed but not for Reasons Expressed by District Court

Plaintiff filed a putative class action against his internet provider, Comcast, alleging violations of the subscriber privacy protection provisions of the federal Cable Communications Policy Act of 1984 (CCPA), 47 U.S.C. §§ 521-561. Klimas v. Comcast Cable Communications, Inc., 465 F.3d 271, 273 (6th Cir. 2006). Defense attorneys moved to dismiss the class action on the ground that plaintiff “lacked standing to contest alleged violations of the privacy provisions in § 551(b) by [Comcast] in the operation of its broadband internet services.” Id. The district court granted the motion on grounds rejected by the Sixth Circuit; however, the Circuit Court affirmed the judgment of dismissal based on the plain language of the statute, which “by its terms, applies only to a ‘cable system'” or to acts “in the provision of cable service,” id.

Plaintiff contracted for internet service with Comcast, which launched its internet service around January 1, 2002. Six weeks after its launch, Comcast announced that it had “stored temporarily” IP (internet protocol) addresses and URL (universal resource locators) information, but stated that “[t]his information has never been connected to individual subscribers and has been purged automatically to protect subscriber privacy” and that the practice was being terminated “immediately.” Klimas, at 273-74. Plaintiff promptly filed a putative class action alleging that Comcast violated § 551(b) by “collecting personally identifiable information concerning subscribers” and violated § 551(a) by failing to give written notice of the nature of personally identifiable information Comcast collected with respect to its customers and the nature of it use of that information. Id., at 274.

Defense attorneys moved to dismiss on the ground that plaintiff lacked standing because any damage suffered was hypothetical in light of the fact that plaintiff never alleged that Comcast “ever correlated [the information in] these two databases.” Klimas, at 275. The district court granted the motion, reasoning that because dynamic IP addresses “constantly change,” the information is not specific to a particular subscriber unless Comcast took steps to affirmatively correlate information in other databases. The Sixth Circuit explained, however, that this reasoning is flawed because some IP addresses are static because the district court failed to rule on all of plaintiff’s claims. Id.

In discussing plaintiff’s standing, the Sixth Circuit observed that the CCPA was enacted in 1984 and “has remained largely unamended.” Klimas, at 275. At the time of its passage, broadband internet service did not exist, id., at 280. Nonetheless, the allegation that Comcast “improperly collected IP-URL linkage information, taken as true, ostensibly alleged an injury under [§ 551(b)],” id., at 276. For this reason, the Circuit Court believed that the real issue was not one of standing, but rather “the lack of a well-pleaded § 551(b) claim,” id. On that subject, the Court found that “the plain language of § 551(b) precludes its application to broadband internet service.” Id. This holding eviscerated plaintiff’s claim, because the class action complaint alleged that Comcast collected personally identifiable information not from use of its cable service but from the use of its internet service. Id. The Sixth Circuit summarized its holding at page 276 as follows: “Put simply, what is at issue in this case is broadband internet access, not cable service.” In support of this holding, the Court observed that recent decisional law holds that “broadband internet service delivered via cable is not ‘cable service.'” Id.

The Circuit Court therefore concluded that the § 551(b) class action claim was properly dismissed, even though the basis for the district court’s ruling was in error. Klimas, at 280. The Court held that § 551(a) class action claim similarly failed because the statute “requires written notice by a ‘cable operator,'” and it “was not intended to apply to broadband internet service, which did not exist at the time the [CCPA] was passed.” Id. In sum, “‘cable service’ does not include broadband internet service, even when provided by a ‘cable operator.'” Id.

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