State ex rel. Koster v. Charter Commc'ns, Inc.

• Decision Date: 26 May 2015
• Docket Number: WD 78258
• Citation: 461 S.W.3d 851
• Parties: State of Missouri ex rel. Attorney General Chris Koster, Appellant, v. Charter Communications, Inc., d/b/a Charter Communications; Charter Fiberlink–Missouri, LLC ; and Charter Advanced Services (MO) LLC, Respondents.
• Court: Missouri Court of Appeals

461 S.W.3d 851

State of Missouri ex rel. Attorney General Chris Koster, Appellant

v.Charter Communications, Inc., d/b/a Charter Communications; Charter Fiberlink–Missouri, LLC ; and Charter Advanced Services (MO) LLC, Respondents.

WD 78258

Missouri Court of Appeals, Western District.

OPINION FILED: May 26, 2015

Chris Koster, Attorney General, Jefferson City, MO, Joshua M. Jones, Assistant Attorney General, St. Louis, MO, Attorneys for Appellant.

Steven M. Sherman and Maria A. Lanahan, St. Louis, MO, John D. Landwehr, Jefferson City, MO, Attorneys for Respondents.

Before Division III: Mark D. Pfeiffer, Presiding Judge, and Gary D. Witt and Anthony Rex Gabbert, Judges

Opinion

Mark D. Pfeiffer, Presiding Judge

Appellant–Relator, Missouri Attorney General Chris Koster (“the AG”), appeals the judgment of the Circuit Court of Cole County, Missouri (“trial court”), declaring that the Civil Investigative Demands (“CIDs”) issued to Respondents by the AG were not authorized by the Electronic Communications Privacy Act, 18 U.S.C. §§ 2701 et seq. (“ECPA”), and were thus not enforceable. Because we conclude that the CIDs were “administrative subpoenas” contemplated by the ECPA and did not violate Respondents' constitutional rights of privacy, we reverse the judgment of the trial court and enter the judgment the trial court should have entered.

Factual and Procedural Background

The salient facts of this case are not in dispute. They are as follows:

One of the responsibilities of the AG is investigating and prosecuting violations of Missouri's consumer protection statutes, Chapter 407 of the Revised Statutes of Missouri, including the Missouri Telemarketing Law (§§ 407.1070 et seq. ) and Missouri's No–Call Law (§§ 407.1095 et seq .). In furtherance of these investigations, the AG is authorized to issue CIDs pursuant to section 407.040.

Respondents Charter Communications, Inc.; Charter Fiberlink–Missouri, LLC; and Charter Advanced Services (MO), LLC, are for-profit companies wholly owned by Charter Communications Holdings, LLC, an active Delaware corporation (collectively, “Charter”). Among other things, Charter provides telephone and voice-over-internet-protocol service to residential and commercial customers in the State of Missouri.

On June 12, 2014, the AG's office served Charter with CID number 039–14JG (“the June CID”). The June CID sought information and documentation regarding one of Charter's customers which was suspected of having violated Missouri's no-call and telemarketing laws. On July 29, 2014, the AG's office sent CID number 059bb–14JK (“the July CID”) to Charter. The July CID stated that an unknown Charter customer was suspected of having violated Missouri's telemarketing laws and requested information and documentation designed to investigate such Charter customer. Invoking protections pursuant to the ECPA and article I, section 15 of the Missouri Constitution, Charter refused to produce the information and documentation sought by the AG's CIDs.¹

The AG's office filed a petition seeking declaratory relief in the form of a judgment stating that the CIDs were “administrative subpoenas” for purposes of the ECPA and that nothing in article 1, section 15 precluded the AG from obtaining the requested information and documentation requested in the June and July CIDs. The petition further requested the trial court to order Charter to respond to both CIDs pursuant to section 407.090.

The parties agreed that the pertinent facts were not in dispute and filed dueling motions for judgment on the pleadings. After briefing and argument, the trial court issued its judgment in favor of Charter, thereby refusing to enforce the AG's CIDs. This appeal follows.

Standard of Review

The trial court's judgment on the pleadings addresses only issues of law. Accordingly, our review is de novo and without deference to the trial court's judgment. State ex rel. Kansas City Symphony v. State, 311 S.W.3d 272, 274 (Mo.App.W.D.2010).

Analysis

The AG asserts three interrelated points on appeal, which we discuss together for ease of discussion.

I. Civil Investigative Demands as Administrative Subpoenas

The ECPA generally prohibits providers of electronic communications services from disclosing any information about its customers or their electronic communications. Conversely, pursuant to the ECPA, a governmental entity may require a provider of electronic communications to divulge its customers' non-content² “record[s] or other information pertaining to [that] subscriber ... or customer[.]” 18 U.S.C. § 2703(c). These requests are limited to certain types of process. Id. Section 2703(c) differentiates between two types of non-content information. The first category of non-content information (which is relevant to this appeal) is often referred to as “basic subscriber information”³ and is limited to the customer's:

(A) name;

(B) address;

(C) local and long distance telephone connection records, or records of session times and durations;

(D) length of service (including start date) and types of service utilized;

(E) telephone or instrument number or other subscriber number or identity, including any temporarily assigned network address; and

(F) means and source of payment for such service (including any credit card or bank account number)[.]

18 U.S.C. § 2703(c)(2). The governmental entity, here the AG, can only obtain basic subscriber information via one of the following ways:

(1) “an administrative subpoena authorized by a Federal or State statute ,”

(2) “a Federal or State grand jury or trial subpoena,”

(3) “a warrant issued using the procedures described in the Federal Rules of Criminal Procedure (or, in the case of a State court, issued using State warrant procedures) by a court of competent jurisdiction,”

(4) “a court order for such disclosure under [§ 2703(d) ],”

(5) “the consent of the subscriber or customer to such disclosure,” or

(6) “a formal written request relevant to a law enforcement investigation concerning telemarketing fraud [but limited to information identifying] the name, address, and place of business of a subscriber or customer of such provider [.]”

18 U.S.C. § 2703(c)(1)-(2) (emphasis added).

Most often, § 2703 is used when law enforcement is attempting to investigate criminal offenses, and it was clearly written with criminal investigations in mind. See Federal Trade Comm'n v. Netscape Commc'ns Corp., 196 F.R.D. 559, 560 (N.D.Cal.2000). However, courts have found that it also encompasses a governmental entity's ability to obtain information regarding electronic communications in civil cases, id. , and the plain language of § 2703(c) is broad enough to support its application in both criminal and civil matters. See also Telecomms. Regulatory Bd. of Puerto Rico v. CTIA–The Wireless Ass'n, 752 F.3d 60, 65–67 (1st Cir.2014).

Given the procedural posture of this case, the only relevant disclosure process is via “administrative subpoena.” We therefore turn our analysis to the nature and origin of the CID and whether it constitutes an administrative subpoena.

Section 407.040 allows the AG to issue CIDs in its investigation of possible violations of the Missouri Merchandising Practices Act, including the Telemarketing Law and the No–Call Law. It provides, in part:

When it appears to the attorney general that a person has engaged in or is engaging in any method, act, use, practice or solicitation declared to be unlawful by this chapter or when he believes it to be in the public interest that an investigation should be made to ascertain whether a person in fact has engaged in or is engaging in any such method, act, use, practice or solicitation, he may execute in writing and cause to be served upon any person who is believed to have information, documentary material, or physical evidence relevant to the alleged or suspected violation, a civil investigative demand requiring such person to appear and testify, or to produce relevant documentary material or physical evidence.... Service of any civil investigative demand, notice, or subpoena may be made by any person authorized by law to serve process or by any duly authorized employee of the attorney general.

§ 407.040.1. Section 407.1107, which is part of the No–Call Law, also provides that “[t]he attorney general may issue investigative demands, issue subpoenas, administer oaths and conduct hearings in the course of investigating a violation” of the No–Call Law. § 407.1107.1.

The Missouri Supreme Court has held that Missouri's CID proceeding “is patterned after the parallel provisions” of the federal proceedings set forth in the Federal Antitrust Civil Process Act, 15 U.S.C. § 1312 ; this federal procedure is, notably, also labeled “Civil Investigative Demand.” Ashcroft v. Goldberg, 608 S.W.2d 385, 388 (Mo. banc 1980). Goldberg also dictates that “[s]ince the Missouri CID statute has received virtually no judicial attention, the best available authority on the subject consists of federal decisions which have construed and applied the provisions of the Federal Antitrust Civil Process Act.” Id.

The United States District Court for the District of Minnesota analyzed the Federal Antitrust Civil Process CID as an administrative subpoena, calling it “an innovation in the civil investigative powers of the Attorney General.” Petition of Gold Bond Stamp Co., 221 F.Supp. 391, 395–96 (D.Minn.1963). The Utah Court of Appeals, citing Gold Bond Stamp, analyzed its CID process similarly. Brixen & Christopher Architects v. State, 29 P.3d 650, 656–57 (Utah Ct. App.2001) ; see also id. at 664 (Davis, J., dissenting) (“CIDs are a method by which the attorney general may compel an individual or corporation to provide ‘information relevant to a civil antitrust investigation.’ ... Thus, CIDs are essentially administrative subpoenas issued by the attorney general.”). The Supreme Court of Colorado analyzed a CID provision found in the Colorado Organized Crime Control Act, which itself was patterned after the Federal Antitrust Civil Process Act,...