# Frontier Communications Corporation

> United States Bankruptcy Court, S.D. New York · December 1, 2023

URL: https://www.frixlaw.com/law-library/cases/10461011

## Case

- **Court:** United States Bankruptcy Court, S.D. New York
- **Decided:** December 1, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES BANKRUPTCY COURT
SOUTHERN DISTRICT OF NEW YORK

In re: FOR PUBLICATION

FRONTIER COMMUNICATIONS Chapter 11
CORPORATION, et al.,
Case No. 20-22476 (MG)
Reorganized Debtors.

OPINION GRANTING MOVIE COMPANY CLAIMANTS’ REQUEST TO SERVE CABLE
COMMUNICATIONS ACT SUBPOENAS ON FRONTIER AND AUTHORIZING FRONTIER
TO DISCLOSE SUBSCRIBER INFORMATION

A P P E A R A N C E S:

MORGAN, LEWIS & BOCKIUS LLP
Counsel for the Record Company Claimants
101 Park Avenue
New York, NY 10178
By: Michael Luskin, Esq.
Stephen E. Hornung, Esq.

and

OPPENHEIM + ZEBRAK, LLP
Counsel for the Record Company Claimants
4350 Wisconsin Avenue, NW, Fifth Floor
Washington, DC 20016
By: Matthew J. Oppenheim, Esq.

461 Fifth Avenue, 19th Floor
New York, New York 10017
By: Alexander Kaplan, Esq.
Carly Kessler Rothman, Esq.

AKERMAN LLP
Counsel for Frontier
71 South Wacker Drive 47th Floor
Chicago, Il. 60606
By: Rubén Castillo, Esq.
Ildefonso Mas, Esq.
CULPEPPER IP
Counsel for the Movie Company Claimants
75-170 Hualalai Road, Suite B204
Kailua-Kona, HI 96740
By: Kerry S. Culpepper, Esq.

MARTIN GLENN
CHIEF UNITED STATES BANKRUPTCY JUDGE

This opinion addresses whether the Court should authorize issuance of subpoenas by
Movie Company Claimants (defined below) that filed claims in the Chapter 11 case of Frontier
Communications Corporation (“Frontier”) alleging contributory copyright infringement by
Frontier, a telecommunications and internet services provider (“ISP”). The subpoenas would
require Frontier to disclose personally identifiable information of Frontier’s internet subscribers
(“Subscribers,” and such information, “Subscriber PII”) who allegedly directly infringed Movie
Company Claimants’ copyrights by transferring copyrighted movies over Frontier’s internet
network. Movie Company Claimants have identified the IP addresses of the alleged infringers
but cannot identify those infringers’ names and other identifying information without obtaining
that information pursuant to the subpoenas from Frontier. The Cable Communications Privacy
Act, 47 U.S.C. § 551, et seq. (“CCPA”), regulates but does not prohibit the disclosure of such
subscriber information. Frontier objects to the issuance of the subpoenas.
For the reasons explained below, the Court overrules Frontier’s objection and authorizes
the issuance of the subpoenas (the “CCPA Subpoenas”), limited to the time period beginning
October 13, 2016, and subject to the requirement in CCPA section 551(c)(2)(B) that Frontier
notify the subscriber that the proposed disclosure is “made pursuant to a court order authorizing
such disclosure . . . .” 47 U.S.C. § 551(c)(2)(B).
I. BACKGROUND
A. Frontier’s Chapter 11 Case
On April 14, 2020, Frontier filed a voluntary petition for relief under Chapter 11 of the
Bankruptcy Code in this Court. (See ECF Doc. # 1.) On August 27, 2020, the Court confirmed

Frontier’s Chapter 11 plan of reorganization (ECF Doc. # 1005-1). The plan became effective
and Frontier emerged from the Chapter 11 case on April 30, 2021. The Record Company
Claimants1 and Movie Company Claimants2 (together, “Claimants”) filed proofs of claim for
pre-petition and post-petition (pre-effective date administrative expenses) copyright infringement
against Frontier.3 Frontier objected to Claimants’ claims and administrative expenses (see ECF
Doc. ## 1818, 1951), to which Claimants responded (see ECF Doc. ## 1902, 1984) (these claims
and administrative expenses, the “Contested Matters”).
B. Discovery of Personally Identifying Information of Frontier’s Subscribers
Who Directly Infringed Movie Company Claimants’ Copyrights
On November 6, 2023, counsel for Frontier and Claimants submitted a Joint Status
Report and Proposed Case Management and Scheduling Orders re the Copyright Claimants’

1 The Record Company Claimants are: UMG Recordings, Inc. and Capitol Records, LLC; ABKCO Music &
Records, Inc.; Sony Music Entertainment, Arista Music, Arista Records LLC, LaFace Records LLC, Sony Music
Entertainment US Latin, Volcano Entertainment III, L.L.C., and Zomba Recording LLC; Atlantic Recording
Corporation, Atlantic Records Group LLC, Bad Boy Records LLC, Big Beat Records Inc., Elektra Entertainment
Group Inc., Fueled by Ramen LLC, Maverick Recording Company, Nonesuch Records Inc., Rhino Entertainment
Company, Rhino Entertainment LLC, Roadrunner Records, Inc., Warner Music Inc., Warner Music International
Services Limited, Warner Music Nashville LLC, and Warner Records Inc.

2 The Movie Company Claimants are: Voltage Holdings, LLC; Backmask, LLC; Union Patriot Capital
Management, LLC; Venice PI, LLC; Bedeviled, LLC; MON, LLC; Colossal Movie Productions, LLC; TBV
Productions, LLC; Definition Delaware LLC; I Am Wrath Productions, Inc.; Hannibal Classics Inc.; Justice
Everywhere Productions LLC; Badhouse Studios, LLC; After Productions, LLC; Rise Up, LLC; Status Update
LLC; Morgan Creek Productions, Inc.; Shock and Awe, LLC; Fun Mom Dinner, LLC; Dead Trigger Movie, LLC;
YAR Productions, Inc.; Gunfighter Productions, LLC; Ace in the Hole Productions, LP; SF Film, LLC; The Rest of
Us, Inc.; Killing Link Distribution, LLC; Cell Film Holdings, LLC; Dallas Buyers Club, LLC; Screen Media
Ventures, LLC; Rambo V Productions, Inc.; Millennium Funding, Inc.; Millennium IP, Inc.; LHF Productions, Inc.;
UN4 Productions, Inc.; Millennium Media, Inc.; Bodyguard Productions, Inc.; Hunter Killer Productions, Inc.;
Fallen Productions, Inc.; HB Productions, Inc.; Laundry Productions, Inc.; Black Butterfly Film, LLC; AMBI
Distribution Corp.; Dubious Productions, Inc.; Rupture CAL, Inc.; Future World One, LLC; Groove Tails
Infringement Claims Against the Reorganized Debtors (the “Status Report,” ECF Doc. # 2227).
The Status Report addressed whether the Court should authorize the issuance of subpoenas that
require Frontier to disclose Subscriber PII about Subscribers who allegedly directly infringed
Movie Company Claimants’ copyrights, and the time period over which discovery should be

permitted.
On November 21, 2023, the Court held a case management conference concerning the
contested issues raised in the Status Report. Following the conference, the Court entered Case
Management Order #1 After Conference in Contested Matters of Copyright Claims Objections
(“Management Order #1,” ECF Doc. # 2229). The Court did not address all contested issues in
Management Order #1. The Court writes here separately to address the issue of CCPA
Subpoenas.
C. The Bankruptcy Court Copyright Claims and the District Court Actions
In addition to the Claims filed in the Bankruptcy Court, Claimants as plaintiffs filed
actions in the U.S. District Court for the Southern District of New York4 (the “District Court

Actions”) alleging post-effective date copyright infringement against Frontier, again based on
alleged contributory copyright infringement by Frontier of its subscribers’ direct copyright

Productions, LLC; Family of the Year Productions, LLC; Eve Nevada, LLC; After II Movie, LLC; and Wonder
One, LLC.

3 The Record Company Claimants filed the following claims: Claim. Nos. 3560, 3821, 3822, and 3832,
amended at Claim Nos. 3944, 3946–48.

The Movie Company Claimants filed the following claims: Claim Nos. 2169, 2137, 2177, 2128, 2132,
2131, 2150, 2167, 2119, 2192, 2269, 1378, 1372, 1394, 1434, 2168, 2121, 2129, 2163, 2125, 2264, 2228, 2236,
2237, 2233, 2193, 2235, 2159, 2283, 2511, 2659, 2742, 2741, 2747, 2748, 2750, 2755, 2752, 2754, 2757, 2756,
2759, 2777, 2853, 2858, 2865, 2901, 2856, 2862 3131, 3806, 3807, 3803, 3808, 3804, and 3812.

4 See UMG Recordings, Inc. v. Frontier Communications Corporation, Case No. 1:21-cv-05050-AT; UMG
Recordings, Inc. v. Frontier Communications Corporation, Case No. 1:21-cv-05253-AT; Voltage Holdings LLC et
al. v. Frontier Communications Corporation, Case No. 1:21-cv-05708-AT.
infringement. The District Court Actions are pending before the Hon. Analisa Torres. The
Contested Matters and the District Court Actions raise many common factual and legal issues.
Claimants filed motions to withdraw the reference of the Contested Matters from the
Bankruptcy Court, which Judge Torres denied in two written orders. (See 21-cv-5050, ECF

Doc. # 15; 21-cv-5708, ECF Doc. # 20.) In prior proceedings in the District Court, Judge
Torres determined that discovery in the Contested Matters and District Court Actions should
proceed together in the Bankruptcy Court.
D. The Discovery Schedule Dispute
The Status Report reflects several disagreements regarding discovery. First, Frontier
and Claimants dispute how long the Court should permit for fact and expert discovery, and the
numbers of fact and expert witness depositions the parties should be permitted to take. Those
issues will be resolved in a comprehensive discovery scheduling order that will be entered after
the parties complete some initial Court imposed requirements. (See Management Order #1).
Another disagreement, which is the subject of this opinion, is whether the Court should

authorize the issuance of CCPA Subpoenas, authorizing the disclosure of Subscriber PII to
Movie Company Claimants, and the time period such CCPA Subpoenas should cover.
1. Frontier’s Position
Frontier opposes the CCPA Subpoenas. It cites two cases for the proposition that
“[CCPA Subpoenas] are disfavored for DMCA claims involving a conduit internet service
provider such as Frontier.” (Status Report at 19–20, citing Malibu Media, LLC v. Doe, No. 15
CIV. 4369 AKH, 2015 WL 4092417 (S.D.N.Y. July 6, 2015) (herein after “Malibu Media”) and
Matter of Cox Comm’ns, LLC, No. MC 23-00263 JMSWRP, 2023 WL 6907124 (D. Haw. Aug.
31, 2023) (herein after “Matter of Cox”).
2. Movie Company Claimants’ Position
Movie Company Claimants request entry of a scheduling order authorizing them to
“immediately serve a request for production of documents requesting identification information
(name, physical address, e-mail address, and lease log identifying time frame IP address was

assigned…)” pursuant to 47 U.S.C. § 551(c)(2)(B). (Status Report at 28.) Movie Company
Claimants further request entry of an order (the “Proposed Cable Act Order,” Status Report at
34) providing that “[p]ursuant to the [CCPA], the Court authorizes [Frontier] to disclose
[Subscriber PII] of the individuals or entities to whom Debtor assigned certain IP addresses
identified by [Movie Company] Claimants.” (Proposed Cable Act Order ¶ 1.)
Movie Company Claimants address the issue of third-party subpoenas in their response
(“Movie Response,” ECF Doc. # 1894) to Frontier’s claim objection (“Movie Objection,” ECF
Doc. # 1818). Movie Company Claimants argue that the information sought in the CCPA
Subpoenas is necessary to establish Subscribers’ direct infringement, which is a prerequisite to
establishing Frontier’s secondary liability for such infringement. (Movie Response at 19.)

II. LEGAL STANDARD
Section 551 of the Cable Communications Privacy Act, the 47 U.S.C. § 551, provides, in
relevant part:
(c) DISCLOSURE OF PERSONALLY IDENTIFIABLE INFORMATION
(1) Except as provided in paragraph (2), a cable operator shall not disclose
personally identifiable information concerning any subscriber without the prior
written or electronic consent of the subscriber concerned and shall take such actions
as are necessary to prevent unauthorized access to such information by
a person other than the subscriber or cable operator.
(2) A cable operator may disclose such information if the disclosure is—
[. . .]
(B) subject to subsection (h), made pursuant to a court order authorizing such
disclosure, if the subscriber is notified of such order by the person to whom the
order is directed;
47 U.S.C. § 551.
III. ANALYSIS
For the reasons explained below, the Court finds that Movie Company Claimants have
established good cause to require Frontier to disclose the alleged infringing Subscribers’ PII that
Movie Company Claimants are seeking. To establish their claims for contributory infringement,
Movie Company Claimants must show direct infringement by the Subscribers for whom they
have IP addresses. Frontier’s caselaw and arguments seeking to bar this discovery are
unpersuasive.
A. Frontier’s Caselaw is Inapposite

Neither case cited by Frontier is instructive here. Malibu Media, 2015 WL 4092417,
concerned a copyright holder directly suing internet subscribers. Matter of Cox Comm’ns, LLC,
2023 WL 6907124, concerned a different type of subpoena, authorized by section 512(h) of the
Digital Media Communications Act (“DMCA”), not 551(c) of the CCPA.
In Malibu Media, plaintiff Malibu Media LLC (“Malibu”) held copyrights to a vast
library of adult content, and was notorious for using such subpoenas to (1) identify individual
users via their IP address and (2) seek “quick, out-of-court settlements” using tactics “clearly
calculated to embarrass defendants” and which “raise[d] serious questions about misuse of court
procedure.” Malibu Media, 2015 WL 4092417, at *3. It was not the “discovery tools” that made
abuse likely, as Frontier suggested; rather, the abuse was Malibu using the CCPA Subpoenas to

target individual internet users and extract “quick, out-of-court settlements.” Id. Here, neither
side has suggested that Movie Company Claimants will use the CCPA Subpoenas to “target”
anyone besides Frontier. Rather, as discussed supra, Movie Company Claimants require the
CCPA Subpoenas to establish direct copyright infringement.
In Matter of Cox, the district court analyzed subpoenas authorized under section 512(h)
of the DMCA (“DMCA Subpoenas”), not those authorized under section 551(c) of the CCPA.
The Court concluded that DMCA Subpoenas were only proper when the internet provider was
“storing” or “hosting” the infringing information, but not when it was merely the conduit.

Matter of Cox, 2023 WL 6907124, at *3. However, Movie Company Claimants are not
requesting DMCA Subpoenas; they are instead requesting CCPA Subpoenas, which Matter of
Cox does not address.
Accordingly, the Court is unpersuaded by Frontier’s arguments.
B. Movie Company Claimants Have Established Good Cause to Issue the CCPA
Subpoenas
Federal Rule of Civil Procedure 26(d)(1) provides that parties “may not seek discovery
from any source before the parties have conferred as required by Rule 26(f) . . . .” FED. R. CIV.
P. 26(d)(1). However, such discovery is permitted when “authorized . . . by court order.” Id.
The standard for granting that order is “generally viewed as requiring a showing of good cause.”
In re BitTorrent Adult Film Copyright Infringement Cases, 296 F.R.D. 80, 87 (E.D.N.Y. 2012).
Factors to consider in determining whether there is “good cause” for the disclosure of an
alleged infringer’s information through an ISP include: “(1) a concrete showing of a prima facie
claim; (2) a specific discovery request; (3) the absence of alternative means to obtain the
subpoenaed information; (4) the need for the subpoenaed information to advance the claim; and
(5) a minimal expectation of privacy by the defendant in the requested information.” Rotten

Records, Inc. v. Doe, 107 F. Supp. 3d 257, 258–59 (W.D.N.Y. 2015) (quoting Catlin v. Global,
No. 14-CV-6324L, 2014 WL 3955220, at *2 (W.D.N.Y. Aug. 13, 2014)).
These factors were announced by the Second Circuit in Arista Records LLC v. Doe, 604
F.3d 110 (2d Cir. 2010), originally as a test for determining when to quash a subpoena seeking
personally identifiable information from ISP subscribers. However, courts have also applied the
Arista factors to the “good cause” inquiry to issue such a subpoena, as outlined above. Rotten
Records, Inc. v. Doe, 107 F. Supp. 3d 257.
1. Movie Company Claimants have made a prima facie claim of infringement

To establish direct copyright infringement, a plaintiff must “establish (1) ownership of a
valid copyright and (2) unauthorized copying or a violation of one of the other exclusive rights
afforded copyright owners pursuant to the Copyright Act.” Byrne v. British Broad. Corp., 132
F. Supp. 2d 229, 232 (S.D.N.Y. 2001) (citing Twin Peaks Prods. v. Publ’ns Int’l. Ltd., 996 F.2d
1366, 1372 (2d Cir. 1993)). Movie Company Claimants have made a prima facie claim of direct
infringement by the Subscribers.
Movie Company Claimants have alleged ownership of the copyrights to the movies listed
in Exhibit 1 of the Movie Response (ECF Doc. # 1894-1), which relate to their pre-petition5 and
post-petition6 claims. Movie Company Claimants have engaged a third-party agent who,
through the use of proprietary software, monitored the networks for “acts of distribution” and

identified “detailed confirmed infringements of specific movie titles, at specific [IP] addresses.”
(Movie Response at 3, 7.) Movie Company Claimants’ allegations are sufficient to establish a
prima facie case of infringement. This factor thus weighs in favor of granting the CCPA
Subpoenas.

5 See Claim Nos. 2169, 2137, 2177, 2128, 2132, 2131, 2150, 2167, 2119, 2192, 2269, 1378, 1372, 1394,
1434, 2168, 2121, 2129, 2163, 2125, 2264, 2228, 2236, 2237, 2233, 2193, 2235, 2159, 2283, 2511, 2659, 2742,
2741, 2747, 2748, 2750, 2755, 2752, 2754, 2757, 2756, 2759, 2777, 2853, 2858, 2865, 2901, 2856, 2862 and 3131.

6 See Claim Nos. 3806, 3807, 3803, 3808, 3804, and 3812.
2. Specific Discovery Request
The Proposed Cable Act Order authorizes the disclosure of the “names, physical
addresses, and e-mail addresses” of “individuals or entities to whom Debtor assigned certain IP
addresses identified by [Movie Company] Claimants.” (Proposed Cable Act Order ¶ 1.) The

CCPA Subpoenas, identifying Subscribers by their IP address, would be specific, targeted
requests related to specific, identified instances of infringement. This factor thus weighs in favor
of granting the CCPA Subpoenas.
3. Absence of Alternative Means and Need for Subpoenaed Information
A CCPA Subpoena is the only way Movie Company Claimants can obtain the
information they seek, and the information they seek is necessary to establish and advance their
claim against Frontier. Without a subpoena, ISPs who qualify as “cable operators” under 47
U.S.C. § 522(5), such as Frontier, are “effectively prohibited by 47 U.S.C. § 551(c) from
disclosing the identities of [Subscribers] to [Movie Company Claimants].” Digital Sin, Inc. v.
Does 1-179, No. 11 Civ. 8172(PAE), 2012 WL 8282825, at *3 (S.D.N.Y. Feb. 1, 2012). This

factor thus weighs in favor of granting the CCPA Subpoenas.
4. Expectation of Privacy
Even in cases where copyright holders sought to hold the subscribers themselves liable
for copyright infringement, the plaintiff’s interest in defending their copyrights outweighed the
defendants’ expectation of privacy. See Arista Records LLC v. Doe, 604 F.3d at 124
(“Defendants have a minimal expectation of privacy, especially when they allegedly engaged in
P2P network sharing… the notion of [P2P sharing] renders void any pretext of privacy”). See
also Strike 3 Holdings, LLC v. Doe, No. 1:23-CV-00764 EAW, 2023 WL 6973168 (W.D.N.Y.
Oct. 23, 2023); Rotten Records, Inc. v. Doe, 107 F. Supp. 3d 257 (W.D.N.Y. 2015).
Here, Movie Company Claimants are not seeking to advance claims against the
Subscribers; but even if they were, this heightened burden would be met. Movie Company
Claimants’ interest in obtaining Subscriber PII relevant to their infringement claims outweighs
the Subscribers’ privacy interest. Accordingly, this factor weighs in favor of approving the

CCPA Subpoenas.
C. Frontier May Not Withhold Proof of Primary Infringement
It is Frontier’s position that “Claimants cannot establish any direct and actual copyright
infringement by Frontier subscribers, which is a prerequisite to impose any secondary liability on
Frontier.” (Movie Objection ¶ 15(a).) Parties do not dispute that primary liability is necessary to
establish secondary liability. In order to establish such primary liability, Movie Company
Claimants must identify the infringers, for which it must rely on the CCPA Subpoenas. Frontier
may not circumvent secondary liability by refusing to provide the information necessary to
establish primary liability.
D. Subpoenas Will Be Limited to the Period Beginning October 13, 2016

A remaining issue is the beginning date for which discovery may be sought by the CCPA
Subpoenas. The statute of limitations for copyright infringement, direct and contributory, is
governed by 17 U.S.C. § 507(b), which provides in relevant part: “No civil action shall be
maintained under the provisions of this title unless it is commenced within three years after the
claim accrued.” Since Frontier filed its Chapter 11 petition on April 14, 2020, section 108(c) of
the Bankruptcy Code has the effect of extending back the statute of limitations for claims against
Frontier filed by the bar date, for three years from the day “before filing of the petition:” April
13, 2017. 11 U.S.C § 108(c).
There is authority that permits discovery for an earlier time period for which any
recovery is already barred by the statute of limitations. Evidence relating to activity outside the
three-year statute of limitations may be “relevant, probative and admissible,” “[a]lthough a
Plaintiff may not recover damages for conduct that occurred outside the limitations period . . . .”

Arista Records LLC v. Lime Group LLC, 784 F. Supp. 2d 398, 418 (S.D.N.Y. 2011). “[S]uch
conduct may be admissible to shed light on the motives with which acts within the limitations
period were performed.” Id. (quoting Cooper v. Parsky, 140 F. 3d 433, 440−41 (2d Cir. 1998)).
While infringement claims against Subscribers who are the alleged direct infringers for acts
preceding the Petition Date are already barred by the statute of limitations, the contributory
infringement claims against Frontier rest on proof of the direct infringing conduct. Balancing the
privacy interests of Subscribers against the clear interests of Movie Company Claimants in
proving and recovering for contributory infringement against Frontier, the Court will permit the
issuance of subpoenas for Subscriber PII that reach back six months before the limitations

periods expired: October 14, 2016.
IV. CONCLUSION
Accordingly, the Court finds that Movie Company Claimants are entitled to the
information sought by the CCPA Subpoenas. The Court will authorize Frontier, through an
order substantially in the form of the Proposed Cable Act Order, to release such information.
A separate Order granting the requested relief will be entered.
Dated: December 1, 2023
New York, New York

Martin Glenn

MARTIN GLENN
Chief United States Bankruptcy Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10461011. Public record. Not legal advice.