Pruitt v. Comcast Cable Holdings, LLC

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUN 3 2004
TENTH CIRCUIT
PATRICK FISHER
Clerk

MARTIN PRUITT, LUCRETIA
PRUITT, DAVID ELGIN, DANIEL
LLEWELLYN and CHERYL
LLEWELLYN,
No. 03-1297
Plaintiffs-Appellants, (Colorado)
(D.Ct. No. 00-N-1250)
v.

COMCAST CABLE HOLDINGS,
LLC,

Defendant-Appellee.

ORDER AND JUDGMENT *

Before MURPHY, Circuit Judge, BRORBY, Senior Circuit Judge, and
O'BRIEN, Circuit Judge.

Former and current subscribers of Comcast Cable Holdings, LLC’s

(“Comcast”) 1 digital cable service filed suit claiming Comcast violated the 1984

*
This order and judgment is not binding precedent except under the doctrines of
law of the case, res judicata and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.

1
During the pendency of this action, Appellee changed from AT&T Broadband,
LLC, to Comcast Cable Holdings, LLC.
Cable Communications Privacy Act (“Cable Act”), 47 U.S.C. § 551, et. seq., by

retaining personally identifiable information in its cable converter boxes without

notice or consent. In addition, two subscribers brought related state law claims

alleging Comcast charged them for a service not supplied. The district court

granted summary judgment in favor of Comcast on the federal claims, holding the

information in the converter boxes was not personally identifiable information

and dismissing the state law claims without prejudice. Exercising jurisdiction

under 28 U.S.C. § 1291, we affirm.

Background

Martin Pruitt, Lucretia Pruitt, David Elgin, Daniel Llewellyn and Cheryl

Llewellyn (“Appellants”) are past or present subscribers of Comcast’s digital

cable service. To receive such service, subscribers must have a special converter

box installed and attached to their telephone line. The converter boxes,

manufactured by Motorola, transmit and store (1) pay-per-view purchase

information, (2) system diagnostic information and (3) settop bugging

information. Each converter box contains a code displayed in hexadecimal format

indicating the date of a pay-per-view purchase and a source identifier for the pay-

per-view channel. The converter box stores a maximum of sixty-four purchases.

When total purchases exceed that number, the newest purchase information

overwrites the oldest purchase. The converter box also contains a code (again

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displayed in hexadecimal format) signifying the total number of purchases and

payments generated through that particular box. Individual subscriber

information is not contained within the converter box, but an identifying number

known as a “unit address” allows Comcast to match the subscriber’s purchases to

its billing system. The billing system contains the name and address of the

household member responsible for payment.

Appellants filed suit claiming Comcast violated the Cable Act by (1)

storing personally identifiable information (47 U.S.C. § 551(e)) and (2) storing

that information longer than necessary (47 U.S.C. § 551(a)). After reviewing

cross motions for summary judgment, the district court held the coded information

in the converter boxes was not “personally identifiable,” and therefore declined to

consider whether Comcast retained that information longer than necessary.

Finding the federal questions resolved, the district court dismissed the Pruitts’

state law claims without prejudice. This appeal followed.

Discussion

1. Cable Act Claims

We review summary judgment de novo applying the same legal standard

used by the district court. Scofield v. TeleCable of Overland Park, 973 F.2d 874,

878 (10th Cir. 1992).

Summary judgment is appropriate 'if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the

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 affidavits, if any, show that there is no genuine issue as to any
material fact.' . . . [We] draw all inferences in favor of the party
opposing summary judgment, [recognizing] credibility
determinations, the weighing of the evidence, and the drawing of
legitimate inferences from the facts are jury functions, not those of a
judge.

Jones v. Barnhart, 349 F.3d 1260, 1265 (10th Cir. 2003) (quoting Fed. R. Civ. P.

56(c)). This Court’s role “is simply to determine whether the evidence proffered

by plaintiff would be sufficient, if believed by the ultimate fact finder, to sustain

[the] claim.” Id. at 1265-66.

“In 1984, Congress enacted the Cable Act to establish national policy and

guidelines for the cable television industry.” Scofield, 973 F.2d at 876. The

Cable Act creates a nationwide standard for the protection of subscriber privacy

by regulating the collection, use, and disclosure by cable operators of personally

identifiable information regarding cable subscribers. In particular, 47 U.S.C. §

551 “establishes a self-contained and privately enforceable scheme for the

protection of cable subscriber privacy.” Id. This section responds to “Congress’

observation that: [c]able systems, particularly those with a ‘two-way’ capability,

have an enormous capacity to collect and store personally identifiable information

about each cable subscriber.” Id. (quoting H.R. Rep. No. 934, 98th Cong., 2d

Sess. 29 (1984)). “Subscriber records from interactive systems,” Congress noted,

“can reveal details about bank transactions, shopping habits, political

contributions, viewing habits and other significant personal decisions.” Id.

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 Although § 551 regulates cable company practices involving personally

identifiable information, exceptions are provided where such information is

necessary to render service to the subscriber, § 551(b)(2)(A), or to detect

unauthorized reception of cable communications. 47 U.S.C. § 551(b)(2)(B).

Even so, such subscriber information must be destroyed when it is no longer

necessary for the purpose for which it was collected. 47 U.S.C. § 551(e).

Further, § 551(a) of the Cable Act “establishes a set of subscriber notice

requirements designed to inform subscribers of . . . the operator’s information

practices that affect subscriber privacy . . . .” Scofield, 973 F.2d at 876.

The heart of this dispute is whether the information stored within

Comcast’s converter boxes is personally identifiable information. “While the

term is not affirmatively defined by the Act, § 551(a)(2)” defines what it is not.

Id. It provides: “for purposes of this section, the term ‘personally identifiable

information’ does not include any record of aggregate data which does not

identify particular persons.” 47 U.S.C. § 551(a)(2). “In addition, legislative

history [suggests] that personally identifiable information would include specific

information about the subscriber, or a list of names and addresses on which the

subscriber is included . . . .” Scofield, 973 F.2d at 876 (quotation and citation

omitted).

Appellants concede the information in the converter boxes does not

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contain the name, address or any information regarding the customer. However,

they maintain the unit address enables Comcast to identify a customer's viewing

habits by connecting the coded information with its billing or management

system. Because the information in any given converter box is not eradicated

when it is recycled to another customer, they conclude the converter boxes

contain personally identifiable information which may never be purged.

In granting summary judgment to Comcast, the district court distinguished

the information in the converter boxes from that contained in the billing system.

It noted the converter box code—without more—provides nothing but a series of

numbers. We agree. Without the information in the billing or management

system one cannot connect the unit address with a specific customer; without the

billing information, even Comcast would be unable to identify which individual

household was associated with the raw data in the converter box. Consequently,

it is the billing system that holds the key to obtaining personally identifiable

information, not the converter box. Appellants made no claim in their briefs or at

oral argument that the collection of information in the billing system violates the

Cable Act. Moreover, Comcast’s privacy notice to subscribers clearly states the

retention policies related to information in the billing system:

Accounting and billing records are retained for ten years for tax and
accounting purposes or until the relevant income tax years for which
the document was created has been closed for income tax purposes
and/or all appeals have been exhausted. Routine paper records

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 necessary to render or conduct legitimate business activities . . . are
kept in accordance with the local cable company’s voluntarily
adopted document retention program. Paper records such as work
orders and records of technical maintenance and service . . . are
retained for three years. Subject to applicable law, records relating
to involuntary disconnects are kept indefinitely by us or [our]
affiliates . . . to facilitate collection and evaluation of
creditworthiness and are updated as new information is added.

(Appellants' App. at 95.) Absent any allegation that the retention of data in the

billing or management systems violates the Cable Act, we agree with the district

court that the converter boxes contain no personally identifiable information and

Comcast's privacy notice to subscribers adequately states its billing information

policies. Because we conclude the converter boxes contain no personally

identifiable information, we need not consider whether Comcast retained such

information longer than otherwise necessary. See 47 U.S.C. § 551(e).

2. Dismissal of State Law Claims

With regard to Pruitts’ assertion that the district court erroneously

dismissed their state law contract claims, we find it to be without merit. When

the district court correctly dismisses a plaintiff’s federal law claims, we review its

decision to refuse to exercise supplemental jurisdiction over that plaintiff’s state

law claims for an abuse of discretion. See 28 U.S.C. § 1367(c)(3); Gold v. Local

7 United Food & Commercial Workers Union, 159 F.3d 1307, 1310 (10th Cir.

1998), overruled on other grounds by Styskal v. Weld County Comm’rs., 365 F.3d

855 (10th Cir. 2004). While

the federal courts’ original jurisdiction over federal questions carries
with it jurisdiction over state law claims that derive from a common
nucleus of operative fact, . . . district courts are statutorily authorized

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 to decline supplemental jurisdiction over a state law claim if

(1) the claim raises a novel or complex issue of State law,
(2) the claim substantially predominates over the claim or
claims over which the district court has original jurisdiction,
(3) the district court has dismissed all claims over which it has
original jurisdiction, or
(4) in exceptional circumstances, there are other compelling
reasons for declining jurisdiction.

Gold, 159 F.3d at 1310 (quotations and citations omitted); see 28 U.S.C. §

1367(a). The district court’s actions were clearly authorized under § 1367(c)(3).

For the foregoing reasons, the district court's judgment in favor of Comcast

is AFFIRMED.

Entered by the Court:

Terrence L. O’Brien
United States Circuit Judge

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