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March 26, 2004, 9:00 AM ET, Alert No. 864.
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Supreme Court Reverses in Nixon v. Missouri

3/24. The U.S. Supreme Court issued its opinion [PDF] in Nixon v. Missouri Municipal League, a case regarding 47 U.S.C. § 253(a) and state statutes that prohibit political subdivisions from offering telecommunications services. It reversed the U.S. Court of Appeals (8thCir).

Summary. Missouri passed a state statute that bans local governments in Missouri from offering telecommunications services. The local governments, represented by the Missouri Municipal League, want the Federal Communications Commission (FCC) to preempt this statute, under Section 253, which provides that states cannot ban "any entity" from providing telecommunications services. It has always been clear that Section 253 means that states cannot bar any company from providing telecommunications services. The question is, does Section 253 also include local governments. The FCC said no. The 8th Circuit said yes. The Supreme Court said no.

Of course, this does not mean that states must bar local governments from providing telecommunications services. This opinion only stands for the proposition that states may bar local governments from providing telecommunications services.

The consequence is that in states, such as Missouri, that bar local governments from providing telecommunications services, the commercial providers will not face competition from local governments. These entities may have competitive advantages over the local exchange carriers, such as public subsidies, as well as regulatory authority. On the other hand, in some more remote and rural areas, local governments might be the only entities prepared to provide certain services -- particularly broadband services.

Background. Jeremiah Nixon is a party to this litigation in his capacity as the Attorney General of the state of Missouri. Missouri passed a law that says that Missouri's political subdivisions, such as towns and counties, cannot offer telecommunications services.

The incumbent local exchange carrier (ILEC), Southwestern Bell, does not want to compete against service providers that are subsidized and favored by the local governments. It supports the Missouri legislation. The Missouri Municipal League (MML), which represents political subdivisions in Missouri, opposes the statute, and wants it preempted by federal law.

The Federal Communications Commission (FCC), which has statutory authority to preempt this statute, sides with the state of Missouri and Southwestern Bell as a matter of statutory construction. It also argues that government entities cannot be both regulators and competitors. The FCC issued an order in which it declined to preempt the statute.

The Statutes. Missouri Statutes, Section 392.410(7), provides that, subject to certain enumerated exceptions, "No political subdivision of this state shall provide or offer for sale, either to the public or to a telecommunications provider, a telecommunications service or telecommunications facility used to provide a telecommunications service for which a certificate of service authority is required pursuant to this section."

The Communication Act, at 47 U.S.C. § 253(a), provides that "No State or local statute or regulation, or other State or local legal requirement, may prohibit or have the effect of prohibiting the ability of any entity to provide any interstate or intrastate telecommunications service." (Emphasis added.)

FCC Proceedings. Various municipalities and municipal organizations filed a petition with the FCC asking that it preempt the Missouri statute for being in violation of § 253(a).

The FCC denied the request to preempt by Memorandum Opinion and Order [18 pages in PDF] released on January 12, 2001. This is CC Docket No. 98-122.

The FCC wrote that "We do not preempt the enforcement of HB 620 to the extent that it limits the ability of municipalities or municipally owned utilities, acting as political subdivisions of the state of Missouri, from providing telecommunications services or facilities. As we found in the Texas Preemption Order, the term ``any entity´´ in section 253(a) of the Act was not intended to include political subdivisions of the state, but rather appears to prohibit restrictions on market entry that apply to independent entities subject to state regulation."

The FCC added that "municipal entry into telecommunications could raise issues regarding taxpayer protection from economic risks of entry, as well as questions concerning possible regulatory bias when a municipality acts as both a regulator and a competitor."

Court of Appeals. The municipal entities then filed a petition for review with the U.S. Court of Appeals (8thCir). The Appeals Court vacated the FCC order, and remanded. It reasoned in its opinion [11 pages in PDF] that "The dispute hinges on the meaning of the phrase ``any entity´´ in § 253 of the Act. More precisely, do the words ``any entity´´ plainly include municipalities and so satisfy the Gregory plain statement rule? We hold that they do." This opinion is also published at 299 F.3d 949.

The Supreme Court granted certiorari on June 23, 2003. The three consolidated petitions are Nixon v. Missouri Municipal League (S.C. No. 02-1238 ), FCC v. Missouri Municipal League (S.C. No. 02-1386), and Southwestern Bell v. Missouri Municipal League (S.C. No. 02-1405). See, Order List [12 pages in PDF] at page 2. The Supreme Court heard oral argument on January 12, 2004.

Supreme Court. The Supreme Court reversed. Justice Souter wrote the opinion of the Court. He was joined by Rehnquist, O'Connor, Kennedy, Ginsburg and Breyer. Justice Scalia wrote a concurring opinion, in which Justice Thomas joined. Justice Stevens wrote a solo dissent.

Souter concluded that § 253 "authorizes preemption of state and local laws and regulations expressly or effectively ``prohibiting the ability of any entity´´ to provide telecommunications services. The question is whether the class of entities includes the State's own subdivisions, so as to affect the power of States and localities to restrict their own (or their political inferiors') delivery of such services. We hold it does not." (Parentheses in original.)

That is, the Missouri statute is valid. Local governmental entities in the state of Missouri cannot now provide telecommunications services.

He reasoned that "§253 would not work like a normal preemptive statute if it applied to a governmental unit. It would often accomplish nothing, it would treat States differently depending on the formal structures of their laws authorizing municipalities to function, and it would hold out no promise of a national consistency. We think it farfetched that Congress meant §253 to start down such a road in the absence of any clearer signal than the phrase ``ability of any entity.´´"

Reaction. Ed Merlis, of the U.S. Telecommunications Association (USTA), an interest group that represents ILECs, stated in a release that "This is a victory for consumers and for our economy. Free markets are far more capable of delivering the many benefits of American innovation to our communities than heavy-handed government intervention."

"With its many tax and regulatory advantages, the government should not be in the business of competing directly with private enterprise. Studies show that such an approach ultimately hinders the evolution of a healthy marketplace that can attract real investment and competition", said Merlis.

Jim Baller of the Baller Herbst Law Group, which represents the Missouri Municipal League, expressed disappointment. He wrote in a release that "the Court made clear that the decision is not a ruling on the merits of municipal telecommunications. The Court merely observed that municipalities have a ``respectable position´´ on this, that there are arguments on the other side ..."

Baller also wrote that "As to the future, we note that only a handful of states currently have barriers to municipal entry, and we hope that other states will take to heart the FCC's admonition that such barriers are unwise, unnecessary to achieve any legitimate state interest, and contrary to the purposes of the Telecommunications Act. Some states have already reversed or relaxed barriers enacted in the past, and we hope that this trend will continue as well."

"We also hope that state legislators everywhere will realize that, without the involvement of local governments, our Nation cannot achieve our national goal of rapid deployment of truly advanced and affordable telecommunications services and capabilities to all Americans, including those in rural and high cost areas", said Baller.

Baller Herbst has collected numerous documents from the FCC proceeding, the 8th Circuit proceeding, and the Supreme Court proceeding. See, Baller Herbst web page titled "Missouri Preemption Litigation".

See also, related stories titled "8th Circuit Rules States Cannot Bar Municipalities From Providing Telecom Services" in TLJ Daily E-Mail Alert No. 492, August 15, 2002; "Supreme Court Grants Certiorari in Nixon v. Missouri Municipal League" in TLJ Daily E-Mail Alert No. 687, June 25, 2003; and "Briefs Filed With Supreme Court in Nixon v. Missouri Municipal League" in TLJ Daily E-Mail Alert No. 776, November 11, 2003.

Divided 4th Circuit Affirms in Internet Smut Case, PSINet v. Chapman

3/25. The U.S. Court of Appeals (4thCir) issued its divided opinion [44 pages in PDF] in PSINet v. Chapman, affirming the District Court's opinion that a Virginia state statute banning the dissemination of material that is harmful to minors over the internet is unconstitutional.

The Appeals Court faced three issues. First, did the 4th Circuit's 1989 opinion in American Booksellers Ass’n v. Virginia upholding the pre-internet version of the statute against a First Amendment challenge bar the Court from reviewing the statute a second time after the legislature added the words "electronic file"? Second, if there is no bar, does the statute violate the First Amendment free speech clause? And third, does the statute violate the dormant commerce clause?

Both the District Court, and the majority of the three judge Appeals Court panel held that American Booksellers Ass’n v. Virginia, 882 F.2d 125 (4th Cir. 1989), does not bar the present review, because the Virginia state legislature amended the statute afterwards to include electronic files. Both the District Court and the majority held that the statute, as amended, violates the First Amendment. And both the District Court and the Appeals Court majority held that the statute violates the dormant Commerce Clause. Judge Niemeyer wrote a 23 page dissent. He argued the opposite on all three issues.

This case was decided by a three judge panel. However, only one of the three panel members is a member of the 4th Circuit -- Niemeyer; and he dissented. The other two members of the panel, Judges James Spencer and Andre Davis, are both U.S. District Court Judges sitting by designation. Under these circumstances, the probabilities that a petition for rehearing en banc will be granted, and that an en banc panel will reverse the three judge panel, increase.

Statute. The Commonwealth of Virginia passed a statute that criminalizes the dissemination of material harmful to minors over the internet.

Virginia Code Ann. Stat. § 18.2-391, as amended in 1999, provides, in part, that

"It shall be unlawful for any person knowingly to sell, rent or loan to a juvenile, or to knowingly display for commercial purpose in a manner whereby juveniles may examine and peruse:
  1. Any picture, photography, drawing, sculpture, motion picture film, electronic file or message containing an image, or similar visual representation or image of a person or portion of the human body which depicts sexually explicit nudity, sexual conduct or sadomasochistic abuse and which is harmful to juveniles, or
  2. Any book, pamphlet, magazine, printed matter however reproduced, electronic file or message containing words, or sound recording which contains any matter enumerated in subdivision 1 of this subsection, or explicit and detailed verbal descriptions or narrative accounts of sexual excitement, sexual conduct or sadomasochistic abuse and which, taken as a whole, is harmful to juveniles.
  However, if a person uses services of an Internet service provider or an electronic mail service provider in committing acts prohibited under this subsection, such Internet service provider or electronic mail service provider shall not be held responsible for violating this subsection."

District Court. In December 1999, PSINet and other plaintiffs filed a complaint in U.S. District Court (WDVa) against Warren Chapman, in his capacity as Commonwealth Attorney, alleging that Section 18.2-391 violates the First Amendment and the commerce clause of the U.S. Constitution.

PSI Net, Inc. is a provider of internet access and other services. Other plaintiffs include People for the American Way (PFAW) and science fiction writer Harlan Ellison. In April of 2002, the major U.S. assets of PSINet were acquired by Cogent Communications.

On August 10, 2000, the District Court issued a preliminary injunction. See, order enjoining enforcement of portions of the statute, and memorandum opinion. See also, TLJ story titled "Judge Overturns Virginia Internet Porm Statute", August 12, 2000.

On October 11, 2001, the District Court granted summary judgment to the plaintiffs, and enjoined enforcement of the statute. See, story titled "District Court Grants Summary Judgment in PSINet v. Chapman" in TLJ Daily E-Mail Alert No. 291, October 22, 2001.

Virginia appealed.

On January 28, 2003, the Court of Appeals issued an opinion [20 pages in PDF] in which it certified two questions of state law to the Supreme Court of Virginia. See, story titled "4th Circuit Certifies Questions to State Court in Challenge to Net Smut Statute" in TLJ Daily E-Mail Alert No. 593, January 29, 2003.

On September 12, 2003, the Virginia Supreme Court declined to answer the questions. The present opinion followed.

Court of Appeals. The Court of Appeals affirmed.

First, the majority rejected the argument that American Booksellers Ass’n v. Virginia is binding on the Court. It wrote that "The Virginia legislature's decision to amend section 18.2-391 to include electronic communications was not a redundant act simply including an area already covered by the Act, but was an affirmative step making the Act applicable to Internet communication. Thus the amendment was clearly a purposeful extension of the Act to a new area of communication, and Plaintiffs may facially challenge the Acts constitutionality as reenacted."

Second, the majority held that the statute "unconstitutionally chills free speech and therefore violates the First Amendment."

Third, the majority upheld the District Court "on the separate ground that the statute violates the Commerce Clause".

Article I, Section 8 provides that "The Congress shall have the Power ... To regulate Commerce with foreign Nations, and among the several States ..."

The dormant commerce clause is the judicial concept that the Constitution, by delegating certain authority to the Congress to regulate commerce, thereby bars the states from legislating on certain matters that affect interstate commerce, even in the absence of Congressional legislation. It is applied to block states from regulating in a way that materially burdens or discriminates against interstate commerce. See, Gibbons v. Ogden, 22 U.S. 1 (1824), and Cooley v. Board of Wardens, 53 U.S. 299 (1851). More recent treatments of the concept include Healy v. The Beer Institute, 491 U.S. 324 (1989), and CTS Corp. v. Dynamics Corp. of America, 481 U.S. 69 (1987).

The majority wrote that "Several courts have struck down state statutes similar to Virginia Code section 18.2-391 as unduly burdensome on interstate commerce because they, in effect, restrict commercial electronic materials in all states, not just the state in which the statute was enacted."

The majority opinion noted that Virginia argued that the Court should presume that the legislature did not intend to give its enactments an impermissible extra-territorial operation. The Court responded that "the nature of the Internet itself makes the Commonwealth’s proposed construction nearly impossible. ... Given the broad reach of the Internet, it is difficult to see how a blanket regulation of Internet material, such as section 18.2-391, can be construed to have only a local effect."

The majority concluded that "The content of the Internet is analagous to the content of the night sky. One state simply cannot block a constellation from the view of its own citizens without blocking or affecting the view of the citizens of other states."

Dissent. Judge Neimeyer wrote a long and strenuous dissent, most of which was devoted to the pormography issues. However, he also briefly argued that the statute does not violate the dormant commerce clause.

He argued that there is no dispute that Virginia has a legitimate local public interest in denying juveniles pormography that is deemed harmful to them. He continued that the only question is whether the burden imposed by the statute on interstate commerce is clearly excessive in relation to the putative local benefits. He concluded that it is not.

This case is PSINet, Inc., et al. v. Warren Chapman, et al., U.S. Court of Appeals for the 4th Circuit, App. Ct. No. 01-2352, an appeal from the U.S. District Court for the Western District of Virginia, at Charlottesville, Judge James Michael presiding, D.C. No. CA-99-111-3.

Washington Tech Calendar
New items are highlighted in red.
Friday, March 26

The Senate will meet at 9:30 AM for morning business.

9:00 AM - 4:00 PM. The Federal Communications Commission's (FCC) Consumer Advisory Committee will hold a meeting. See, agenda [PDF]. Location: FCC, Room TW-C305, 445 12th Street, SW.

9:30 AM. The Consumer Federation of America (CFA) will host an event titled "Network Neutrality for the Broadband Internet". The speakers will include Federal Communications Commission (FCC) Commissioner Michael Copps, Lawrence Lessig (Stanford University), Vinton Cerf (MCI WorldCom), and Timothy Wu (University of Virginia Law School), Andrew McLaughlin (Google), and Earl Comstock. To attend, contact Mark Cooper (CFA) at or 301 384-2204. Location: Room 628, Dirksen Building, Capitol Hill.

12:15 PM. The Federal Communications Bar Association's (FCBA) Young Lawyers Committee will host a brown bag lunch regarding emerging technologies. The speakers will be Jeff Campbell (Cisco), Mark Murphy (Ericsson), Bill Lane (FCC Office of Strategic Planning), Kenneth Carter (FCC Office of Strategic Planning). For more information, contact Ken Carter at or Pam Slipakoff at Location: Willkie Farr & Gallagher, 1875 K Street, NW.

Monday, March 29

8:30 AM - 4:15 PM. The Consumer Electronics Association (CEA) will host its event titled "HDTV Summit: Partnership, Policy and Profits". Rep. Fred Upton (R-MI), the Chairman of the House Commerce Committee's Subcommittee on Telecommunications and the Internet, will be the keynote speaker at 9:40 AM. Prices vary. See, CEA notice. Location: Washington DC Convention Center, 801 Mount Vernon Place, NW.

9:30 AM. The U.S. Court Appeals (DCCir) will hear oral argument in SBC Communications v. FCC, No. 03-1118. Judges Sentelle, Rogers and Tatel will preside. Location: 333 Constitution Ave.

Deadline to submit comments to various federal agencies regarding whether these agencies agencies should consider amending existing regulations that implement sections 502 and 503 of the Gramm Leach Bliley Act (GLB) to allow or require financial institutions to provide alternative types of privacy notices. The agencies are the Board of Governors of the Federal Reserve System, Commodity Futures Trading Commission (CFTC), Federal Deposit Insurance Corporation (FDIC), Federal Trade Commission (FTC), National Credit Union Administration, Office of the Comptroller of the Currency, Office of Thrift Supervision, and the Securities and Exchange Commission (SEC). See, notice in the Federal Register, December 30, 2003, Vol. 68, No. 249, at Pages 75164 - 75174.

Tuesday, March 30

9:00 AM. The President's Council of Advisors on Science and Technology (PCAST) will hold a meeting. The agenda includes "(1) Discuss a draft report from its workforce-education subcommittee; and (2) continue its discussion of nanotechnology and its review of the federal National Nanotechnology Initiative ... " See, notice in the Federal Register, March 17, 2004, Vol. 69, No. 52, at Page 12694. Location: Crystal Ballroom, St. Regis Hotel, 923 16th Street, NW.

10:00 AM. The House Appropriations Committee's Subcommittee on Homeland Security will hold a hearing on the proposed budget for the Science and Technology directorate at the Department of Homeland Security (DHS). Charles McQueary, Under Secretary for Science and Technology, is scheduled to testify. Location: Room B-308, Rayburn Building.

10:00 AM - 1:00 PM. The Federal Communications Commission's (FCC) Network Reliability and Interoperability Council will meet. See, notice [PDF] and agenda [PDF]. Location: FCC, Commission Meeting Room (TW-C305), 445 12th Street, SW.

11:00 AM. The Heritage Foundation will host a panel discussion titled "Leveraging Cutting-Edge Commercial Technology For Defense". Joseph Mait (Center for Technology and National Security Policy), Stephen Prior (Potomac Institute for Policy Studies), Robert Bott (Boeing Company), James Jay Carafano (Heritage), and Jack Spencer (Heritage). See, notice. Location: Heritage, Lehrman Auditorium, 214 Massachusetts Ave NE.

12:00 NOON. Deadline to submit written comments to the U.S. Trade Representative's (USTR) Trade Policy Staff Committee (TPSC) regarding negotiating objectives for the proposed free trade agreement (FTA) between the U.S. and four Andean countries (Colombia, Peru, Ecuador, and Bolivia). See, notice in the Federal Register, February 17, 2004, Vol. 69, No. 31, at Pages 7532 - 7534.

2:00 PM. The House Appropriations Committee's Subcommittee on Commerce, Justice, and State, the Judiciary, and Related Agencies will hold a hearing on the proposed budget for the Departments of Commerce, Justice and State. The purpose of this hearing is to allow Members of Congress to testify. Location: Room H-309, Capitol Building.

2:30 PM. The Senate Commerce Committee will hold a hearing an several pending nominations, including that of Theodore Kassinger to be Deputy Secretary of Commerce. Location: Room 253, Russell Building.

Wednesday, March 31

10:00 AM. The House Commerce Committee will hold a hearing titled "U.S.-China Trade: Preparations for the Joint Commission on Commerce and Trade". Press contact: Larry Neal or Jon Tripp at 202 225-5735. The hearing will be webcast. Location: Room 2123, Rayburn Building.

10:00 AM. The House Appropriations Committee's Subcommittee on Commerce, Justice, and State, the Judiciary, and Related Agencies will hold a hearing on the proposed budget for the Federal Communications Commission (FCC). FCC Chairman Michael Powell is scheduled to testify. Location: Room H-309, Capitol Building.

12:15 PM. The Federal Communications Bar Association's (FCBA) Online Communications Practice Committee will host a brown bag lunch titled "Digital Rights Management". The speakers will be Mark Cooper (Consumer Federation of America), and Paul Glist (Cole Raywid & Braverman). RSVP to Evelyn Opany at 202-689-7163. Location: Cole, Raywid & Braverman, 1919 Pennsylvania Ave., NW, Suite 200.

2:00 - 3:30 PM. Federal Communications Commission (FCC) World RadioCommunication 2007 (WRC-07) Advisory Committee's Informal Working Group on Regulatory Issues will meet. The FCC notice [PDF] states that "Non-U.S. citizens who wish to attend must preclear 24 hours in advance of the meeting by e-mailing their name, nationality and company affiliation to" Location: The Boeing Company, 1200 Wilson Boulevard. The nearest metro stop is Rosslyn Station.

The Office of the U.S. Trade Representative (USTR) may conclude its review regarding the operation and effectiveness of, and the implementation of and compliance with, the World Trade Organization (WTO) Basic Telecommunications Agreement, other WTO agreements affecting market opportunities for U.S. telecommunications products and services, the telecommunications provisions of the North American Free Trade Agreement (NAFTA), Chile FTA and Singapore FTA, and other telecommunications trade agreements. See, notice in the Federal Register, December 8, 2003, Vol. 68, No. 235, at Pages 68444 - 68445.

6:00 PM. Deadline to submit applications to the National Telecommunications and Information Administration (NTIA) for grants under the Public Telecommunications Facilities Program (PTFP). See, NTIA notice.

Deadline to submit reply comments to the Federal Communications Commission (FCC) regarding Level 3 Communications' petition for forbearance requesting the FCC to forbear from application of 47 U.S.C. § 251(g), the exception clause of § 51.701(b)(1) of the FCC's rules, and § 69.5(b) of the FCC's rules to the extent those provisions could be interpreted to permit local exchange carrier (LECs) to impose interstate or intrastate access charges on internet protocol (IP) traffic that originates or terminates on the public switched telephone network (PSTN), or on PSTN-PSTN traffic that is incidental thereto. This is WC Docket No. 03-266. See, FCC notice [3 pages in PDF].

Deadline to submit comments to the Federal Trade Commission (FTC) in response to its notice in the Federal Register requesting comments regarding a National Do Not E-mail Registry. Section 9 of S 877, the "Controlling the Assault of Non-Solicited Pormography and Marketing Act of 2003" (CAN-SPAM Act), requires the FTC to write a report to the Congress on establishing a nationwide Do Not E-Mail Registry. It is due by June 16, 2004. See, story titled "FTC Announces CAN-SPAM Act Rulemaking" in TLJ Daily E-Mail Alert No. 855, March 15, 2004. The notice is published in the Federal Register, March 11, 2004, Vol. 69, No. 48, at Pages 11775-11782. See also, FTC release summarizing the notice.

Thursday, April 1

9:00 AM - 1:15 PM. The Department of Commerce's (DOC) National Telecommunications and
Information Administration
(NTIA), U.S. Patent and Trademark Office (USPTO), and Technology Administration (TA) will host a forum titled "From RFID to Smart Dust: The Expanding Market for Wireless Sensor Technologies". The participants will include Kevin Martin (FCC Commissioner), Jon Dudas (acting Director of the USPTO), Michael Gallagher (acting Administrator of the NTIA), Elizabeth Prostic (Chief Privacy Officer), and Benjamin Wu (Deputy Under Secretary for Technology). See, NTIA release and notice in the Federal Register, March 1, 2004, Vol. 69, No. 40, at Page 9598. Location: DOC Auditorium, 1401 Constitution Ave., NW.

9:30 AM. The U.S. Court Appeals (DCCir) will hear oral argument in Telcordia v. Telkom, No. 03-7099. Judges Randolph, Rogers and Garland will preside. Location: Prettyman Courthouse, 333 Constitution Ave.

10:00 AM. The House Appropriations Committee's Subcommittee on Homeland Security will hold a hearing on the proposed budget for the Information and Analysis and Infrastructure Protection directorate of the Department of Homeland Security (DHS). Location: TBA.

2:00 PM. The House Appropriations Committee's Subcommittee on Veterans Affairs and Housing and Urban Development, and Independent Agencies will hold a hearing on the proposed budget for the National Science Foundation (NSF). Location: Room 2359, Rayburn Building.

Friday, April 2

9:30 AM. The U.S. Court Appeals (DCCir) will hear oral argument in Communications & Control Inc. v. FCC, No. 03-1213. Judges Henderson, Randolph and Roberts will preside. Location: Prettyman Courthouse, 333 Constitution Ave.

12:15 PM. The Federal Communications Bar Association (FCBA) will host a lunch. The speakers will be legal advisors on wireless issues to Federal Communications Commission (FCC) Commissioners. The price to attend is $15. RSVP to Wendy Parish at by 5:00 PM on Wednesday, March 31. Location: Sidley Austin, 1501 K Street, NW, 6th Floor.

Monday, April 5

The House will be in recess from April 5 through April 16 for the Spring recess. It will next meet on Monday, April 19.

The Supreme Court will begin a recess. (It will return on April 19, 2004.)

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Typeright v. Microsoft, No. O3-1197. Location: Courtroom 203, 717 Madison Place, NW.

Deadline to submit comments to the Federal Communications Commission (FCC) in response to its Notice of Inquiry and Notice of Proposed Rulemaking (NOI & NPRM) [31 pages in PDF] regarding the interference temperature method of quantifying and managing interference among different services. See, notice in the Federal Register, January 21, 2004, Vol. 69, No. 13, at Pages 2863 - 2870. This NOI/NPRM is FCC 03-289 in ET Docket No. 03-237. See also, stories titled "FCC Announces NOI/NPRM on Interference Temperature Model" in TLJ Daily E-Mail Alert No. 779, November 14, 2003, and "FCC Releases NOI/NPRM on Interference Temperature Approach" in TLJ Daily E-Mail Alert No. 789, December 1, 2003.

Deadline to submit comments to the National Archives and Records Administration's Electronic Records Policy Working Group regarding implementation of Section 207(e)(1)(A) of the E-Government Act of 2002, regarding "Public Access to Electronic Information". This section provides for "the adoption by agencies of policies and procedures to ensure that chapters 21, 25, 27, 29, and 31 of title 44, United States Code, are applied effectively and comprehensively to Government information on the Internet and to other electronic records.'' See, notice in the Federal Register, March 8, 2004, Vol. 69, No. 45, at Page 10764.

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