|10th Circuit Rules in
Private Telecom Antitrust Case
|9/10. The U.S.
Court of Appeals (10thCir) issued its split opinion
Communications v. Southwestern Bell, a private
antitrust case involving definition of the relevant market,
application of the Noerr Pennington doctrine, and application
of the state action and exclusive jurisdiction doctrines.
After several pretrial orders, and a jury trial, plaintiffs
were awarded $20 Million. The Appeals Court affirmed.
Background. Telecor Communications and the eight other
plaintiffs are independent pay phone service providers. They
compete with Southwestern Bell, the incumbent local exchange
carrier (ILEC) in the state of Oklahoma, which had a legal
monopoly until passage of the Telecommunications Act of 1996.
In anticipation of passage of the Act, and competition in pay
phone service, Southwestern Bell engaged in a campaign to
secure long term, hard to cancel, contracts with the owners of
locations for pay phones, to make entry by competitors more
difficult. The competitors offered better commissions to
location owners, but after two years, Southwestern Bell still
held 87 percent.
District Court. Telecor and the others plaintiffs filed
a complaint in U.S.
District Court (WDOkla) against Southwestern Bell alleging
violation of state and federal antitrust law, seeking treble
damages. Telecor argued that the relevant market is pay phone
service. Southwestern Bell argued that the relevant market
included pay phone and cellular services. The District Court
ruled on summary judgment that the relevant market was pay
phones. The District Court also allowed Telecor to present
evidence regarding alleged misleading statements made by
Southwestern Bell to the state utilities regulator. The jury
then returned a verdict for Telecor. Southwestern Bell
Appeals Court. The Appeals Court affirmed the District
Court's ruling excluding cellular phones from the relevant
market definition. It wrote that "Location owners are the
relevant customers for purposes of locating Southwestern
Bell's pay phone facilities, and from the location owners'
perspective, cellular phone services and pay phone services
are not interchangeable."
The Appeals Court next rejected Southwestern Bell's argument
that the admission of evidence of misleading statements to the
state regulator violated the Noerr Pennington doctrine, which
provides immunity from antitrust liability under the Sherman
Act to private parties who petition the government for redress
of grievances, notwithstanding the anti competitive purpose or
consequences of their petitions.
The Appeals Court also rejected Southwestern Bell's argument
that the state action doctrine barred use of the contracts
between Southwestern Bell and location owners that were
negotiated before the passage of the Telecom Act of 1996.
Judge David Ebel wrote the opinion. Judge Paul Kelly
dissented. He would have reversed on two issues: the
definition of the relevant market, and the application of the
state action and exclusive jurisdiction doctrines.
Plaintiffs are represented by the law firm of Boies Schiller &
|People and Appointments
|9/10. Rep. John
Sununu (R-NH) defeated incumbent Sen. Bob Smith (R-NH) in
the New Hampshire Republican Senate primary.
Dole won the seven way North Carolina Republican
Senate primary. She will face Erskine
Bowles, who won the Democratic primary. Both seek the
seat of retiring Sen. Jesse
9/10. Anne Weismann was named Deputy Chief of the Federal Communications Commission's
(FCC) Enforcement Bureau.
She will help oversee the common carrier enforcement
activities of the Enforcement Bureau's Market Disputes
Resolution Division, Telecommunications Consumers Division and
Investigations and Hearings Division. She previously worked at
the Department of Justice's Federal Programs Branch. See, FCC
9/10. Helen Hubbard was named Tax Legislative Counsel
in the Treasury Department's Office of Tax Policy.
She was previously a partner at Ernst
& Young in the Accounting Methods and Inventory group
in the National Tax Department. Prior to that, she was a
partner with Akin Gump.
|Qwest Withdraws Long
|9/10. Qwest Communications
withdrew its Section
271 applications to provide in region interLATA services
in the states of Colorado, Washington, Utah, Idaho, Iowa,
Nebraska, North Dakota, Montana and Wyoming. Qwest stated that
it "expects to refile an application for all nine states
by the end of September". See, Qwest
Commission (FCC) Chairman Michael Powell
stated in a release that "The FCC cannot approve such
applications by the Bell Companies unless they satisfy the
requirements of sections 271 and 272
of the Communications Act."
Powell continued that "In my view, Qwest's application
was razor close to approval. Ultimately, the outstanding
issues were very narrow, but nonetheless important. Despite
extensive examination of the record supporting these
applications, questions remain regarding whether Qwest has
complied with the safeguards set forth by Congress in section
272 of the Act. Section 272 governs how a Bell Company's long
distance separate affiliate operates. In these applications,
Qwest did much to otherwise demonstrate that it has complied
with the market-opening provisions of the section 271
Powell added that "I am confident that Qwest, in
consultation with the states, Department of Justice, and this
Commission, will expeditiously resolve the outstanding issues
that prevented approval."
Steve Davis, Qwest's SVP of Policy and Law, stated that
"there have been questions raised regarding our plans to
restate our financial statements for prior periods. Our new
application will address those concerns and demonstrate our
full compliance with the 1996 Act."
|PFF Releases Paper on ICANN
|9/10. The Progress and Freedom
Foundation (PFF) released a paper
[23 pages in PDF] titled "Domain Names Services: Let
Competition, Not ICANN, Rule". The paper, which was
written by the PFF's William Adkinson, argues that the Internet Corporation for Assigned
Names and Numbers (ICANN) should end price and service
regulation, and terminate its "mission creep."
The current Memorandum of Understanding (MOU) between the
Department of Commerce (DOC) and ICANN is scheduled to expire
at the end of this month.
The paper states that "In the mold of a traditional
economic regulatory agency, ICANN regulates entry into the
domain name business and sets the price at which some (but not
other) domain name registries can offer services. While such
regulation may once have been justified, the domain name
marketplace is now competitive." (Parentheses in
It adds that "ICANN appears to be engaging in regulatory
``mission creep,´´ seeking to regulate in detail the nature
of service offerings in the domain name marketplace. If not
restrained, ICANN thus threatens to morph into an entity that
might more appropriately be called the ``Internet Commerce
Commission.´´ Such an entity is neither necessary nor
desirable. Instead, the Department of Commerce should use this
opportunity to end economic regulation of the DNS once and for
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|Wednesday, September 11
|Anniversary of the terrorist attacks of September 11, 2001.
The House will meet at 12:00 NOON for legislative business. No
votes are expected before 5:00 PM. The House will consider The
Patriot Day Resolution. See, Whip
|Thursday, September 12
|The House will meet at 10:00 AM for legislative business.
The House is scheduled to consider HR 5193,
the Back to School Tax Relief Act of 2002.
8:00 AM - 5:30 PM. Day one of a two day conference hosted by
the International Intellectual
Property Institute (IIPI) titled "Specialized
Intellectual Property Courts". See, IIPI
release and online
registration form. Location: GWU Law School, Moot Court
Room, 2000 H St., NW.
9:30 AM. The FCC will hold a
meeting. The FCC will consider a Notice of Proposed Rulemaking
(NPRM) concerning its media ownership rules, pursuant
to Section 202(h) of the Telecommunications Act of 1996. It
will also consider a NPRM and Memorandum Opinion and Order
concerning possible revisions to the rules on unsolicited
advertising over the telephone and facsimile machine and the
possible establishment of a national do not call list.
This is CC Docket No. 92-90. Location: FCC, 445 12th Street,
SW, Room TW-C05.
10:00 AM. Federal
Reserve Board Chairman Alan
Greenspan will testify to the House Budget Committee.
Location: Room 210, Cannon Building.
10:00 AM. The House
Judiciary Committee's Subcommittee on the Constitution
will hold an oversight hearing titled "Privacy
Concerns Raised by the Collection and Use of Genetic
Information by Employers and Insurers". Audio web
cast. Location: Room 2237, Rayburn Building.
12:30 - 2:00 PM. The American
Society of International Law will host a panel discussion
titled "International Cyberspace: Convergence or
Conflict?". RSVP by 5:00 PM on September 10 to cborgen @asil.org or by fax
to 202 797-7133, attn: Chris Borgen. Lunch will be served.
Location: ASIL, 2223 Massachusetts Ave., NW.
2:00 PM. The Senate
Banking Committee will hold a hearing on the nomination of
Wayne Abernathy to be Assistant Secretary of the
Treasury for Financial Institutions. Location: Room 538,
2:30 PM. The Senate
Commerce Committee's Subcommittee on Science, Technology,
and Space Subcommittee will hold a hearing to examine S 2537,
the Dot Kids Implementation and Efficiency Act of 2002, and HR 2417,
the Dot Kids Domain Name Act of 2001. These bills would
facilitate the creation of a new second level Internet domain
within the U.S. country code domain that would provide a safe
online environment for children. The House has already passed
another version -- HR 3833.
Location: Room 253, Russell Building.
Deadline to submit comments to the FCC regarding WorldCom's August 8, 2002,
petition for a declaratory ruling pursuant to 47 C.F.R.§ 1.2,
that requesting carriers are entitled to access ILEC Line
Information Database data at cost based rates when they use
such data to provide interexchange and exchange access
service. This is CC Docket No. 01-338. See, FCC
|Friday, September 13
|The House will meet at 9:00 AM for legislative business. No
votes are expected past 2:00 PM.
9:00 AM - 5:00 PM. Day two of a two day conference hosted by
the International Intellectual
Property Institute titled "Specialized
Intellectual Property Courts". See, IIPI
release and online
registration form. Location: Markey National Courts Bldg.,
717 Madison Pl., NW.
10:45 AM. Press conference associated with the International Intellectual
Property Institute's conference titled "Specialized
Intellectual Property Courts". Location: Court Room
203, Markey National Courts Bldg., 717 Madison Pl., NW.
10:00 AM. The FCC's Network Reliability and
Interoperability Council will hold a meeting. Location:
FCC, 445 12th Street, SW, Commission Meeting Room.
Deadline to submit comments to the FTC
regarding its proposed consent agreement with MSC Software Corporation.
Containing Consent Order [22 pages PDF]. See, notice
in Federal Register.
|Monday, September 16
Deadline to submit comments and notices of intention to
participate to the Copyright
Office in response to its notice
in the Federal Register directing "all claimants to
royalty fees collected in 1999, 2000 and 2001 for the
distribution of digital audio recording devices and media to
submit comments as to whether a controversy exists as to the
distribution of the royalty fees in the 1999, 2000 and 2001
Musical Works Funds."
Deadline to register for the FCC's September
18 auction seminar for Auction No. 46. This is for the
1670-1675 MHz band auction, scheduled for October 30, 2002.
with registration form [PDF].
|Tuesday, September 17
|9:00 AM - 5:00 PM. Day one of a three day meeting of the Computer System Security
and Privacy Advisory Board (CSSPAB). The agenda includes
(1) discussion of a CSSPAB privacy report, (2) discussion of a
CSSPAB baseline standards report, (3) updates on computer
security legislation, (4) an update by the OMB on privacy and
security issues, (5) an agency briefing on compliance with the
Government Paperwork Elimination Act (GPEA), (6) and a
discussion of DMCA issues. See, notice in Federal Register,
August 30, 2002, Vol. 67, No. 169, at Pages 55817 - 55818.
Location: General Services Administration, 7th and D Streets,
9:00 AM. The Bureau of
Industry and Security's (BIS) Regulations and Procedures
Technical Advisory Committee (RPTAC) will hold a partially
open meeting. The agenda for the open portion of the meeting
includes a presentation of papers or comments by the public,
an update on pending regulations, a discussion of TSR MTOP
limit comments, a discussion of the Unverified List, a review
of SNAP 2002 status, a discussion of AES regulations & SED
recordkeeping requirements, a discussion on implementation of
CCL User Friendliness recommendations, and updates from
working groups. See, notice
in the Federal Register. Location: Room 3884, Department of
Commerce, 14th Street between Constitution and Pennsylvania
9:30 AM. The U.S.
Court of Appeals (DCCir) will hold an en banc hearing in Ruggiero
v. FCC, No. 00-1100. On February 8, a three judge panel
issued its split opinion
holding unconstitutional the ban on issuance of low power FM
radio broadcast licenses to anyone who has previously engaged
in an unlicensed operation. The set of people who have engaged
in unlicensed broadcasting who may seek low power FM licenses
is a very small and insignificant group. However, this case
could have a broader impact. The en banc panel may provide an
analysis of the application of the First Amendment to
broadcast speech that affects a wider range of speakers.
Location: Courtroom 20, 333 Constitution Ave., NW.
12:00 NOON - 4:30 PM. The Cato
Institute will host an event titled "The Supreme
Court: Past and Prologue. A Look at the October 2001 and
October 2002 Terms". Location: 1000 Massachusetts Avenue,