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August 26, 2004, 9:00 AM ET, Alert No. 967.
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10th Circuit Upholds Oklahoma Statute that Discriminates Against Electronic Commerce

8/23. The U.S. Court of Appeals (10thCir) issued its opinion in Powers v. Harris, upholding the constitutionality of a protectionist state statute that has the effect of preventing certain sales of caskets over the internet. Two individuals who own a business named Memorial Concepts Online challenged, on 14th Amendment grounds, an Oklahoma statute that requires that in most circumstances one must be a licensed funeral director operating out of a funeral establishment to sell caskets. The Appeals Court upheld the statute.

This is a 14th Amendment (due process, equal protection and privileges and immunities) case, rather than a commerce clause case. The Appeals Court held that the statute is an economic regulation, and that therefore, the rational basis test applies. It held that the state has a legitimate state interest -- intrastate protectionism -- and that protecting state funeral directors from competition is rationally related to this interest.

This opinion is inconsistent with the opinion of the U.S. Court of Appeals (6thCir) in Craigmiles v. Giles, which struck down a very similar Tennessee statute on due process and equal protection grounds. It too applied the rational basis test, but found that statute lacking. It held that economic protectionism is not a legitimate state interest. See, story titled "6th Circuit Buries Protectionist Statute in Tennessee Casket Case" in TLJ Daily E-Mail Alert No. 563, December 9, 2003.

These cases both deal with the regulation of funerals, funeral directors, and funerary sales. However, the analyses contained in these opinions are applicable to other protectionist state statutes that impede electronic commerce.

Parties. The plaintiffs in this case are Kim Powers, Dennis Bridges, and Memorial Concepts Online, Inc. (MCAI). MCAI is an Oklahoma corporation owned by Power and Bridges.

They sell burial caskets over the internet. They do not provide any embalming, funeral or burial services. They only sell products. None of the plaintiffs holds an Oklahoma funeral director's license. However, Bridges holds a Tennessee funeral director's license. Tennessee has a very similar licensing statute.

The defendants are Joe Harris, and other individuals, who are sued in their capacity as members of the Oklahoma State Board of Embalmers and Funeral Directors.

There is also interest group involvement in this case. The plaintiffs were represented by the Institute for Justice (IJ), which is making a practice of representing plaintiffs who challenge the constitutionality of protectionist state laws that discriminate against electronic commerce. The IJ also represented the plaintiffs in Craigmiles v. Giles. The IJ is also representing the plaintiffs in Swedenburg v. Kelly, a dormant commerce clause challenge to a New York state law that regulates internet sales, and other direct sales, of alcoholic beverages under the 21st Amendment. Juanita Swedenburg, is a Virginia wine seller who is prohibited from making direct sales over the internet to New York residents. She prevailed in the District Court; the U.S. Court of Appeals (2ndCir) reversed; the Supreme Court has granted certiorari. See, story titled "Supreme Court Grants Certiorari in Internet Wine Sales Cases" in TLJ Daily E-Mail Alert No. 905, May 26, 2004.

The Pacific Legal Foundation and the Claremont Institute's Center for Constitutional Jurisprudence both filed amicus curiae briefs in support of Powers, Bridges and MCAI.

Oklahoma Statute. The Oklahoma Funeral Services Licensing Act (FSLA), which is codified at Okla. Stat. tit. 59, § 395.1 et seq., and the rules promulgated thereunder, require that any person engaged in the sale of funeral service merchandise, including caskets, must be a licensed funeral director operating out of a funeral establishment.

The requirements for obtaining a license include having a fixed physical location, that must include a preparation room that meets the requirements for embalming bodies, and an on site inventory of caskets.

Also, the FSLA limits its enforcement to intrastate casket sales only. For example, an unlicensed Oklahoma casket seller may sell casket to customers outside of the state of Oklahoma.

The Court of Appeals also noted that the Oklahoma Board does not apply this licensing requirement to those who sell pre-paid sales (as opposed to time of need sales), provided that the person is acting as an agent of a licensed funeral director.

U.S. Constitution. The 14th Amendment provides, in part, that "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

District Court. Powers, Bridges and Memorial Concepts Online filed a complaint in U.S. District Court (WDOkla) against Harris and the other members of the Oklahoma State Board of Embalmers and Funeral Directors seeking a declaration that the Oklahoma statute violates the equal protection, due process and privileges and immunities clauses of the 14th Amendment of the U.S. Constitution, as well as the dormant commerce clause.

The District Court held that Oklahoma's FSLA licensing regime does not violate either the equal protection, due process and privileges and immunities clauses of the 14th Amendment, or the dormant commerce clause.

Powers, Bridges and MCAI appealed the 14th Amendment claims, but not the dormant commerce clause claim.

Court of Appeals Holding. The Appeals Court affirmed.

The Court first addressed the privileges and immunities clause claim in a single paragraph. It wrote that if the clause is to be revived from its post Slaughter-House Cases, 83 U.S. (16 Wall.) 36 (1872), status, that will be the responsibility of the Supreme Court, not the 10th Circuit.

The Court then addressed the difference between due process and equal protection. It wrote that the substantive component of the due process clause provides heightened protection against governmental interference with certain fundamental rights and liberty interests, even when the challenged statute affects all persons equally, while the equal protection clause requires that states treat similarly situated persons similarly. The Court further stated that this appeal "is most properly presented as an equal protection claim", and "In any event, because a substantive due process analysis proceeds along the same lines as an equal protection analysis, our equal protection discussion sufficiently addresses both claims".

Thus, the bulk of the opinion then addresses the equal protection claim.

The Court followed the New Deal era method of analysis that distinguishes between individual and economic rights, and applies a lower standard, the rational basis test, to its review of statutes that affect economic rights.

The state of Oklahoma argued that its statute serves the purpose of protecting consumers. However, the Appeals Court did not indulge in any hypocrisy about the statute serving any public health, safety or welfare purpose. It wrote that it did not doubt that the FSLA exacts "needless" and "wasteful" requirements. It concluded that it is a statute that protects funeral directors from intrastate competition in the sale of caskets.

The plaintiffs argued that the FSLA is "a classic piece of special interest legislation designed to extract monopoly rents from consumers' pockets and funnel them into the coffers of a small but politically influential group of business people -- namely, Oklahoma funeral directors". The Court of Appeals did not refute this characterization. Rather, it concluded that intrastate economic protectionism is itself a legitimate state interest.

The Court wrote that very few court opinions have found intrastate protectionism not to be a legitimate state interest. One of these few cases is Craigmiles, which this Court concluded was wrongly decided.

This Court also distinguished H.P. Hood & Sons, Inc., v. DuMond, 336 U.S. 525 (1949) on the basis that it involved interstate economic protectionism, not intrastate economic protectionism. It also distinguished other cases that struck down economic regulations as interstate regulation cases involving the dormant commerce clause, which was not raised on appeal in this case.

The Court wrapped itself in the Supreme Court's antique cases that applied New Deal era regulatory logic to constitutional analysis. The Court relied upon U.S. v. Carolene Products, 304 U.S. 144 (1938), Williamson v. Lee Optical, 348 U.S. 483 (1955) and Ferguson v. Skrupa, 372 U.S. 726 (1963). Indeed, the Court cited Skrupa in its first paragraph.

The Court concluded that "intrastate economic protectionism, absent a violation of a specific federal statutory or constitutional provision, is a legitimate state interest and that the FSLA is rationally related to this legitimate end".

The Court added that "Our country's constitutionally enshrined policy favoring a national marketplace is simply irrelevant as to whether a state may legitimately protect one intrastate industry as against another when the challenge to the statute is purely one of equal protection."

Concurring Opinion. Judge Tymkovich wrote a concurring opinion. It concurs in the result, but it disputes the key parts of Judge Tacha's analysis. It reads more like a dissent.

He wrote that "Where I part company with the majority is its unconstrained view of economic protectionism as a ``legitimate state interest.´´ The majority is correct that courts have upheld regulatory schemes that favor some economic interests over others. Many state classifications subsidize or promote particular industries or discrete economic actors. And it is significant here that Oklahoma's licensing scheme only covered intrastate sales of caskets. But all of the cases rest on a fundamental foundation: the discriminatory legislation arguably advances either the general welfare or a public interest."

He reviewed Supreme Court precedent in this area, and concluded that "Contrary to the majority, however, whenever courts have upheld legislation that might otherwise appear protectionist, as shown above, courts have always found that they could also rationally advance a non-protectionist public good." He would have upheld the statute on the grounds that "the funeral licensing scheme here furthers, however imperfectly, an element of consumer protection".

He wrote that "Consumer interests appear to be harmed rather than protected by the limitation of choice and price encouraged by the licensing restrictions on intrastate casket sales", but still, this is a matter to be decided by the state legislature, not the courts.

He opposed Judge Tacha's "almost per se rule upholding intrastate protectionist legislation".

Conflict Between Circuits. The Court of Appeals wrote that "we part company with the Sixth Circuit's Craigmiles decision, which struck a nearly identical Tennessee statute as violating the Equal Protection Clause and substantive due process."

There now exists a conflict between different circuits. The two statutes are very similar. Both cases raised 14th Amendment issues. In both cases the plaintiffs sold caskets. In both cases the plaintiffs are represented by the same attorneys, and supported by the same amici. Yet, the two Courts reached different results.

Both began with the traditional, economic regulation, rational basis test, method of analysis. But, arguably, both departed from precedent, albeit in opposite directions.

The Court in Craigmiles added new meaning to the rationale basis test. It made it a more rigorous standard. It interpreted it as a ban on economic protectionism that harms consumers.

In contrast, the Court in Powers revised the rationale basis test to make it an even less exacting standard. It interpreted it to allow economic protectionism in the absence of the independent advancement of any public good. It also read into the equal protection clause an interstate versus intrastate distinction.

Consequences for E-Commerce. This is not merely arcane constitutional analysis. Nor will the impact of these cases be limited to casket sellers.

Traditional brick and mortar businesses that have been threatened by competition from internet based businesses have often obtained protection from state legislatures. See, for example, the Progressive Policy Institute (PPI) study titled "Revenge of the Disintermediated: How the Middleman is Fighting E-Commerce and Hurting American Consumers", authored by Robert Atkinson, and dated January 26, 2001.

Atkinson testified before a House Commerce Subcommittee hearing on September 26, 2002 regarding this report. He wrote in his prepared statement that "incumbent producers in a wide range of industries, including wine and beer wholesalers, auto dealers, travel agents, pharmacies, mortgage brokers, and others, are fighting against robust e-commerce competitors. The growth of laws and regulations many at the state level, that protect incumbent ``bricks and mortar´´ companies from e-commerce competitors is a major threat to the growth of e-commerce." See also, story titled "House Subcommittee Holds Hearing on State Impediments to E-Commerce" in TLJ Daily E-Mail Alert No. 518, September 27, 2002.

Similarly, Tod Cohen of eBay also testified at this hearing. He wrote in his prepared statement "price competition is great for consumers, but troubling to the entrenched monopolists and oligopolists that have been able to set prices unfairly for years without repercussion. E-commerce forces them to face an unpleasant prospect: competition. In order to prevent or ``manage´´ competition, these ``middlemen´´ have used their allies in state and local government to apply existing laws and regulations to Internet companies in a discriminatory manner and to enact laws and regulations that treat interstate e-commerce companies differently from offline intrastate companies. They justify these new, discriminatory barriers with spurious claims that e-commerce may harm consumers. Far too often, though, these claims simply seek to mask the fact that the middlemen are just trying to protect their ``turf.´´"

E-commerce proponents are often unsuccessful in persuading state legislatures not to impose discriminatory barriers upon e-commerce. Moreover, the Congress has only rarely passed statutes that effectively preempt state discriminatory barriers. Hence, e-commerce proponents have turned to the courts in numerous instances, and attempted to have various discriminatory burdens struck down for violating the U.S. Constitution. The commerce clause, and the doctrine of the dormant commerce clause, is the most common type of challenge. The Craigmiles and Powers cases are unusual in the sense that the plaintiffs have relied upon the 14th Amendment. Nevertheless, these cases are part of a larger collection of Constitutional challenges to protectionist state statutes.

The 6th Circuit's approach in Craigmiles, if it were to become the national standard, would advance the cause of e-commerce interests seeking to block discriminatory barriers from being imposed by protectionist state legislatures. The 10th Circuit's approach in Powers, if it were to become the national standard, would be a setback for e-commerce interests.

Judges. Judge Deanell Tacha wrote the opinion of the Court, in which Judges Monroe McKay and Timothy Tymkovich joined. Judge Tacha, a Kansan, is the Chief Judge of the 10th Circuit. She was appointed by former President Reagan. Although, her nomination was primarily the result of efforts of former Sen. Bob Dole (R-KS), who was then a senior member of the Senate. In 1996 there was speculation that she might be nominated for a seat on the Supreme Court. However, Bob Dole lost the Presidential election to Bill Clinton, and no seats on the Court opened.

Judge Tacha discussed her judicial philosophy in a written interview by Howard Basham, that was published in the web site titled "How Appealling" on January 5, 2004. She wrote that "In my view, if judges are doing their jobs appropriately, they adhere with careful precision to the law and facts of the case before them. They do not stray into policy or what should be. They stick with the text of the Constitution, statute, or regulation that they are interpreting. Judges quite simply cannot fix problems in our country. Judges can only decide the controversies in front of them. I have found very few cases in which I thought there was ever the legitimate flexibility in the applicable law to bring to bear anything other than that law itself."

She also commented in the Powers opinion that "There simply is no constitutional or Platonic form against which we can (or could) judge the wisdom of economic regulation".

Senior Judge McKay was appointed by President Carter. Judge Tymkovich, who wrote the separate opinion, was appointed in 2003 by President Bush.

Judge Danny Boggs, an outspoken, free market, Federalist Society, conservative, wrote the opinion in the Craigmiles case.

This case is Kim Powers, et al. v. Joe Harris, et al., U.S. Court of Appeals for the 10th Circuit, App. No. 03-6014, an appeal from the U.S. District Court of the Western District of Oklahoma, D.C. No. CIV-01-445-F, Judge Stephen Friot presiding.

The Craigmiles case is Nathaniel Craigmiles, et al. v. Arthur Giles, et al., U.S. Court of Appeals for the 6th Circuit, App. Ct. No. 00-6281, an appeal from the U.S. District Court for the Eastern District of Tennessee, at Chattanooga, D.C. No. 99-00304, Judge Allan Edgar presiding.

Publication Schedule

The TLJ Daily E-Mail Alert may not be published on Friday, August 27, Monday, August 30, Tuesday, August 31, and/or Wednesday, September 1, depending upon events.

DOJ Executes Search Warrants in Investigation of Criminal Infringement by P2P Users

8/25. The Department of Justice (DOJ) announced that it "executed six search warrants at five residences and one Internet service provider in Texas, New York, and Wisconsin, as part of an investigation into the illegal distribution of copyrighted movies, software, games, and music over peer-to-peer networks". See, DOJ release.

The DOJ also stated that this investigation, which it has named "Operation Digital Gridlock", has "targeted illegal file sharing of copyrighted materials over five Direct Connect peer-to-peer networks that belonged to a group known as The Underground Network".

John AshcroftAttorney General John Ashcroft (at right) stated that "P2P does not stand for ``Permission to Pilfer.´´ Illegal distribution and reproduction of copyrighted material is a serious criminal offense. Today's investigative action sends a clear message to online thieves who steal the hard work and innovation of others. And it sends a clear message to those who think nothing of downloading those stolen goods to their computers or MP3 players. You can pay the fair value for music, movies, software and games like every other consumer, or you can pay an even higher price when you are caught committing online theft." See, transcript.

The DOJ also announced that this investigation is being jointly conducted by the DOJ's Federal Bureau of Investigation (FBI), the Office of the U.S. Attorney for the District of Columbia, and the DOJ's Computer Crime and Intellectual Property Section (CCIPS).

The DOJ has not announced the execution of any arrest warrants, or the return of any indictments, in connection with Operation Digital Gridlock.

Washington Tech Calendar
New items are highlighted in red.
Thursday, August 26

The House and Senate are in recess through September 6.

6:00 - 9:15 PM. The DC Bar Association's Intellectual Property Law Section and Computer and Telecommunications Law Section will host a continuing legal education (CLE) program titled "Software Patent Primer: Acquisition, Exploitation, Enforcement and Defense". The speakers will be Richard Litman (Litman Law Firm), Stephen Parker (Rothwell Figg, Ernst & Manbeck), David Temeles (Temeles & Temeles), and Martin Zoltick (Rothwell Figg). Prices vary. See, notice. For more information, contact 202-626-3488. Location: D.C. Bar Conference Center, B-1 Level, 1250 H Street, NW.

Friday, August 27

Deadline to submit comments to the Federal Communications Commission (FCC) in response to its notice of proposed rulemaking (NPRM) regarding unlicensed use of the 3650-3700 MHz band. The FCC adopted this NPRM on April 15, 2004. This item is FCC 04-100 in ET Docket Nos. 04-151, 02-380 and 98-237. See, notice in the Federal Register, May 14, 2004, Vol. 69, No. 94, at Pages 26790 - 26803. See also, story titled "FCC Announces NPRM Regarding Unlicensed Use in the 3650-3700 MHz Band" in TLJ Daily E-Mail Alert No. 878, April 16, 2004.

Deadline to submit comments to the Federal Communications Commission FCC) in response to its notice of proposed rulemaking (NPRM) [11 pages in PDF] that proposes to require that television and radio broadcasters retain program recordings for a period of time for purposes of enforcing the statutory prohibition, codified at 18 U.S.C. § 1464, against obscene, indecent, or profane programming. This NPRM is FCC 04-145 MM Docket No. 04-232. See, story titled "FCC Proposes That Broadcasters Retain Recordings To Facilitate Enforcement of Smut Ban" in TLJ Daily E-Mail Alert No. 933, July 8, 2004. See, notice in the Federal Register, July 30, 2004, Vol. 69, No. 146, at Pages 45665 - 45668.

Monday, August 30

The Republican National Convention will be held in New York City on August 30 through September 2.

Wednesday, September 1

TIME ? The Executive Office of the President's (EOP) Office of Science and Technology Policy's (OSTP) National Science and Technology Council's (NSTC) Committee on Technology's Subcommittee on Nanoscale Science, Engineering and Technology will hold a meeting that is close to the public. For more information, contact Geoff Holdridge at Location: National Science Foundation (NSF), Room 1235.

12:00 NOON - 1:30 PM. The DC Bar Association's Intellectual Property Law Section and Trademark Committee will host a panel discussion titled "Use Of Surveys In Trademark Cases". The speakers will be Bassam Ibrahim (Burns Doane) and Jessica Pollner (PricewaterhouseCoopers). See, notice. Prices vary from $20 to $40. For more information, call 202 626-3463. Location: D.C. Bar Conference Center, B-1 Level, 1250 H Street, NW.

Deadline to submit comments to Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) [38 pages in PDF] regarding use by unlicensed devices of broadcast television spectrum where the spectrum is not in use by broadcasters. See, notice in the Federal Register, June 18, 2004, Vol. 69, No. 117, at pages 34103-34112. See also, story titled "FCC Adopts NPRM Regarding Unlicensed Use of Broadcast TV Spectrum" in TLJ Daily E-Mail Alert No. 898, May 14, 2004, and story titled "FCC Releases NPRM Regarding Unlicensed Use of TV Spectrum" in TLJ Daily E-Mail Alert No. 905, May 26, 2004. This NPRM is FCC 04-113 in ET Docket Nos. 04-186 and No. 02-380.

The Federal Trade Commission's (FTC) final rule amending its Telemarketing Sales Rule (TSR) by revising the fees charged to entities accessing the National Do Not Call Registry takes effect. See, notice in the Federal Register, July 30, 2004, Vol. 69, No. 146, at Pages 45580 - 45586.

Thursday, September 2

RESCHEDULED FROM AUGUST 18. 10:00 AM - 12:00 NOON. The Federal Communications Commission's (FCC) WRC 07 Advisory Committee, Informal Working Group 5: Regulatory Issues, will meet. See, FCC notice [PDF]. Location: The Boeing Company, 1200 Wilson Boulevard, Arlington, VA. The nearest Metro stop is the Rosslyn Metro Station.

Friday, September 3

Deadline to submit nominations to the U.S. Patent and Trademark Office (USPTO) for positions on the Patent Public Advisory Committee (PPAC) and the Trademark Public Advisory Committee (TPAC) with terms that begin November 27, 2004. Nominations must be postmarked or electronically transmitted by September 3, 2004. See, notice in the Federal Register, August 2, 2004, Vol. 69, No. 147, at Pages 46136 - 46137.

Deadline to submit comments to the National Institute of Standards and Technology (NIST) regarding its draft Special Publication 800-72 [60 pages in PDF], titled "Guidelines on PDA Forensics". This publication is designed to assist forensic specialists involved in law enforcement and other investigations in accessing and examining data on Palm OS, Pocket PC and Linux based personal digital assistants (PDAs). Send comments to PDAforensics@NIST.Gov.

Monday, September 6

Labor Day. The Federal Communications Commission (FCC) and other federal offices will be closed. See, Office of Personnel Management's (OPM) list of federal holidays.

Tuesday, September 7

The House and Senate will return from the August recess.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its notice of proposed rulemaking (NPRM) regarding the process for designation of eligible telecommunications carriers (ETCs) and the FCC's rules regarding high-cost universal service support. This NPRM is FCC 04-127 in Docket No. 96-45. See, notice in the Federal Register, July 7, 2004, Vol. 69, No. 129, at Pages 40839 - 40843.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its notice of proposed rulemaking (NPRM) regarding the rechannelization of portions of the 17.7-19.7 GHz band. This NPRM is FCC 04-77 in WT Docket No. 04-143. See, notice in the Federal Register, July 7, 2004, Vol. 69, No. 129, at Pages 40843 - 40850.

Deadline to submit comments to the Copyright Office (CO) in response to its notice of proposed rulemaking (NPRM) regarding amendments to the CO's regulations to permit the Library of Congress to record unpublished radio and other audio and audiovisual transmission programs. The CO stated that "regulations already provide for the Library of Congress to obtain copies of unpublished television transmission programs, either by recording fixations or by demanding copies in the form of a transfer, loan or sale at cost. This revised regulation makes similar provisions for audio transmission programs and includes transmission programs made available by radio broadcasts and by digital communications networks such as the Internet." See, notice in the Federal Register, August 5, 2004, Vol. 69, No. 150, at Pages 47396 - 47399.

People and Appointments

8/24. Timothy Young was named Associate Administrator of E-Government and Information Technology at the Executive Office of the President's (EOP) Office of Management and Budget (OMB). See, OMB release.

8/24. Mark Adler was named Deputy Chief Litigation Counsel in the Securities and Exchange Commission's (SEC) Division of Enforcement. He was previously the Assistant Chief Litigation Counsel. He replaces Peter Bresnan, who was named Associate Director of the Division of Enforcement in April of this year. David Kornblau remains the Chief Litigation Counsel. See, SEC release.

More News

8/20. Usman Hayat plead guilty in U.S. District Court (WDWash) to one count of transmitting interstate and foreign communications with intent to extort, in violation of 18 U.S.C. § 875(d), in connection with his sending e-mail messages to Eddie Bauer, Inc. in which he demanded payment in return for not making false accusations of use of child labor. Hayat wrote, "I will dedicate my life to defame your brand". Hayat is a resident of Pakistan, and sent his e-mail from Pakistan. He was arrested at Eddie Bauer's offices in Redmond, Washington after he traveled to the U.S., at the request of undercover FBI agents posing as Eddie Bauer executives, to pick up his extortion payment. See, USAO release and plea agreement [10 pages in PDF].

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