Throneburg v. Charter Commc'ns, Inc.

• Decision Date: 10 October 2019
• Docket Number: Case No. 4:19 CV 1720 RWS
• Parties: DEREK THRONEBURG, Plaintiff, v. CHARTER COMMUNICATIONS, INC., et al., Defendants.
• Court: U.S. District Court — Eastern District of Missouri

DEREK THRONEBURG, Plaintiff,
v.
CHARTER COMMUNICATIONS, INC., et al., Defendants.

Case No. 4:19 CV 1720 RWS

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION

October 10, 2019

MEMORANDUM AND ORDER

Plaintiff Throneburg was a Charter subscriber from March 2003 through April 2012. He alleges that Charter failed to disclose that it would sell subscribers' personally identifiable information ("PII") and that Charter actually sold his PII "hundreds of times per month," both while he was a subscriber and after he terminated his service relationship with Charter. (Doc. #4 at ¶¶ 14, 17, 24). Throneburg argues that Charter's actions violate the Cable Communications Act of 1984 ("Cable Act"), 47 U.S.C. § 551 et seq. He also brings state-law claims for conversion and unjust enrichment.

Charter moves to dismiss all of Throneburg's claims, arguing that all claims are time-barred, that Cable Act claims relating to disclosure fail to state a claim,

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that the state-law claims fail to state a claim, and that Throneburg fails to allege an injury-in-fact.

Because Throneburg was a Charter customer more than six years ago, some of his claims (Counts I-III) are time-barred. However, Throneburg also alleges recent disclosure violations (in Counts IV-V) that are not time-barred, and these allegations do state a claim that is plausible on its face. Finally, Throneburg's state-law claims (Counts VI-VII) fail to state a claim upon which relief can be granted. As a result, I will grant in part and deny in part Charter's motion to dismiss.

Legal Standard

The purpose of a 12(b)(6) motion to dismiss is to test the legal sufficiency of the complaint. When ruling on a motion to dismiss, I must accept as true all factual allegations in the complaint and view them in the light most favorable to the plaintiff. Fed. R. Civ. P. 12(b)(6); see Erickson v. Pardus, 551 U.S. 89, 94 (2007); Swierkiewicz v. Sorema N.A., 534 U.S. 506, 508 n.1 (2002). This is so "even if it strikes a savvy judge that actual proof of those facts is improbable." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007); see Neitzke v. Williams, 490 U.S. 319, 327 (1989) ("Rule 12(b)(6) does not countenance . . . dismissals based on a judge's disbelief of a complaint's factual allegations."). An action fails to state a claim upon which relief can be granted if it does not plead

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"enough facts to state a claim that is plausible on its face." Twombly, 550 U.S. at 570. To survive a motion to dismiss, "[f]actual allegations must be enough to raise a right to relief above the speculative level." Id. at 555.

Discussion

Throneburg asserts that Charter committed five violations of the Cable Act. First, Charter allegedly failed to deliver privacy notifications, in violation of § 551(a)(1), both when Throneburg entered into a service agreement with Charter (Count I) and at least once a year thereafter during his subscription (Count II). He further alleges that even if Charter had provided him with its privacy notifications while a subscriber, they were not clearly and conspicuously worded and as a result violated § 551(a)(1)(A)-(E) (Count III). He also alleges that Charter failed to obtain his prior written or electronic consent before disclosing his PII, in violation of § 551(c)(1) (Count IV). Finally, he alleges that Charter failed to provide its subscribers an opportunity to prohibit or limit such disclosures, in violation of § 551(c)(2)(C) (Count V). Throneburg also asserts claims for conversion (Count VI) and unjust enrichment (Count VII) under Missouri law arising from Charter's alleged sale of his PII.

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Cable Act Claims

Standing

Charter argues that Throneburg fails to allege an injury in fact sufficient to establish Article III standing. Article III of the Constitution limits the jurisdiction of the federal courts to cases or controversies. A plaintiff has the burden of establishing standing by demonstrating (1) an injury in fact, (2) fairly traceable to the defendant's challenged conduct, and (3) that is likely to be redressed by a judicial decision in the plaintiff's favor. Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 559-60 (1992)). "Article III requires a concrete injury even in the context of a statutory violation." Id. at 1549. A concrete injury must "actually exist," and it must be "real" and not "abstract." Id. at 1548.

Throneburg's allegations are sufficient to demonstrate standing in this case. In Braitberg v. Charter Commc'ns, Inc., the Eighth Circuit Court of Appeals held that a plaintiff bringing claims under the Cable Act failed to allege an injury in fact because he claimed "only that Charter violated a duty to destroy [PII] by retaining certain information longer than the company should have kept it." 836 F.3d 925, 930 (8th Cir. 2016). However, Braitberg specifically noted that "[plaintiff] does not allege that Charter has disclosed the information to a third party, that any outside party has accessed the data, or that Charter has used the information in any

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way during the disputed period," implying that these allegations would be sufficient to confer standing. Id. Since this is exactly what Throneburg has alleged, he satisfies Article III's injury-in-fact requirement.

Gubala v. Time Warner Cable, Inc., also cited by Charter, is likewise distinguishable from Throneburg's case. 846 F.3d 909 (7th Cir. 2017). In Gubala, the plaintiff alleged that Time Warner had failed to destroy his PII after he was no longer a customer. The Seventh Circuit Court of Appeals noted, "[Plaintiff's] only allegation is that the retention of the information, on its own, has somehow violated a privacy right or entailed a financial loss. There is unquestionably a risk of harm in such a case. But the plaintiff has not alleged that Time Warner has ever given away or leaked or lost any of his [PII] or intends to give it away . . . ." Id. at 910 (emphasis original). As Throneburg alleges that Charter has disclosed and sold his PII to third parties without his consent, he has standing to bring this lawsuit.

Statute of Limitations

Charter argues that all of Throneburg's Cable Act claims are barred by the statute of limitations. However, the Cable Act does not provide a statute of limitations for private causes of action under § 551. Michael v. Charter Comc'ns, Inc., No. 4:17-cv-1242-JMB, 2019 WL 1379967, at *2 (E.D. Mo. Mar. 27, 2019) (listing cases); see also 47 U.S.C. § 551. When this is the case in remedial

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legislation, "Congress ordinarily intends by its silence that we borrow state law." Michael, 2019 WL 1379967, at *2 (quoting Lampf, Pleva, Lipkind, Prupis, & Petigrow v. Gilberston, 501 U.S. 350, 355 (1991)). However, courts borrow from federal law "when a rule from elsewhere in federal law clearly provides a closer analogy than available state statutes," Michael, 2019 WL 1379967, at *3 (internal quotation marks and citation omitted), especially "when the operation of a state limitations period would frustrate the policies embraced by the federal enactment." Lampf, 501 U.S. at 355-56; see also Agency Holding Corp. v. Malley-Duff & Assoc., Inc., 483 U.S. 143, 149-50 (1987) (applying federal law on limitations period where federal policies favored application of a federal rule).

Among other things, Congress intended the Cable Act to "establish a national policy concerning cable communications" and to "minimize unnecessary regulation that would impose an undue economic burden on cable systems." 47 U.S.C. § 521; see also Scofield v. Telecable of Overland Park, Inc., 751 F. Supp. 1499, 1510 (D. Kan. 1990), rev'd on other grounds, 973 F.2d 874 (10th Cir. 1992). And, § 551 was specifically meant to "create a nationwide standard for the privacy protection of cable subscribers. . . ." H.R. Rep. No. 98-934, at 76 (1984). As a result, "the federal interest in a nationwide standard for the privacy protection of cable subscribers is best served by the application of a single statute of limitations." Michael, 2019 WL 1379967, at *4.

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The parties disagree about which federal statute's limitation period I should borrow for Throneburg's Cable Act claims. Relying on a recent decision from this Court, Michael, 2019 WL 1379967, at *3, Charter argues that I should borrow the one-year limitations period from the Truth in Lending Act ("TILA") to find Throneburg's claims time-barred. For his part, Throneburg urges me to adopt the two-year statute of limitations from the Video Privacy Protection Act of 1988 ("VPPA").

TILA provides that "any action under this section may be brought in any United States district court . . . within one year from the date of the occurrence of the violation." 15 U.S.C. § 1640(e). As Charter points out, I ordered Throneburg to "meaningfully distinguish this case" from Michael, which adopts TILA's statute of limitations. (Doc. #22 at 1 n.1). Yet Charter acknowledges that this question "has not been widely litigated." See Michael, 2019 WL 1379967, at *3. And, Throneburg's argument—that I should adopt VPPA's statute-of-limitations period instead—does not seem to have been considered by any court to date (including Michael). VPPA provides that "[n]o action may be brought under this subsection unless such action is begun within 2 years from the date of the act complained of or the date of discovery." 18 U.S.C. § 2710(c)(3).

As recognized in Michael, TILA and the Cable Act share "the same general purpose of requiring meaningful disclosure of information to consumers," "provide

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that such disclosure should be clear and conspicuous," and have "somewhat similar" civil enforcement provisions. 2019 WL 1379967, at *4 (quoting Scofield, 751 F. Supp. at 1510). Moreover, the Cable Act and TILA both require disclosure of information to consumers. See 15 U.S.C. § 1601(a) ("It is the purpose of this subchapter to assure a meaningful disclosure of credit terms so that the...