10/12. The U.S. Court of Appeals (9thCir) issued its opinion [17 pages in PDF] in Qwest v. Portland, a case involving 47 U.S.C. § 253 and local franchise fees on telecommunications carriers. The District Court ruled that 7% municipal rights of way fees in Oregon do not violate Section 253. The Court of Appeals reversed in part, and remanded.

Qwest Communications is an incumbent local exchange carrier that provides telecommunications services in the state of Oregon. The City of Portland, which is located in Oregon assessed incumbent local telecommunications carriers a rights of way fee of 7% of gross revenues, pursuant to authority granted by an Oregon state statute. Other Oregon municipalities did the same. (One assessed a 4% fee.)

The Congress enacted the Telecommunications Act of 1996. 47 U.S.C. § 253(a), which was enacted as part of the Act, 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."

However, 47 U.S.C. § 253(c) provides that "Nothing in this section affects the authority of a State or local government to manage the public rights-of-way or to require fair and reasonable compensation from telecommunications providers, on a competitively neutral and nondiscriminatory basis, for use of public rights-of-way on a nondiscriminatory basis, if the compensation required is publicly disclosed by such government."

Qwest filed a complaint in U.S. District Court (DOre) against Portland seeking a declaration that Portland's franchise and telecommunications ordinances are invalid under 47 U.S.C. § 253. Other municipalities in Oregon intervened.

The District Court granted summary judgment to Portland and the other cities.

It held that Qwest failed to show that the municipalities' revenue based right of way fees, or other franchise requirements, prohibited or had the effect of prohibiting Qwest's provision of telecommunication services under Section 253. It also held that the Act did not categorically prohibit cities from basing public rights of way fees on a company's gross revenues, rather than on actual costs for use of local rights of way.

Qwest brought this appeal. The Court of Appeals reversed in part, and remanded to the District Court because it "failed to conduct an individualized § 253 preemption analysis for each city's ordinances, and misapplied our holding in City of Auburn v. Qwest, 260 F.3d 1160 (9th Cir. 2001)".

See also, April 24, 2001 opinion [PDF] of the 9th Circuit in Auburn v. Qwest.

This case is Qwest Corporation v. City of Portland, et al., App. Ct. No. 02-35473, an appeal from the U.S. District Court for the District of Oregon, D.C. No. CV-01-01005-JE. Judge Johnnie Rawlinson, wrote the opinion of the Appeals Court in which Judges Arthur Alarcón and Warren Ferguson joined. Judge Ferguson also wrote a concurring opinion.

10/8. The Federal Communications Commission (FCC) announced, but did not release, an order that grants in part and denies in part Core Communications' petition for forbearance of enforcement of the FCC's 2001 ISP Remand Order. The FCC grants forbearance from the growth caps and new markets rule, and extends this to all telecommunications carriers.

The FCC issued a short release [PDF] describing this forbearance order. It states that "The FCC finds that Core has not met the statutory criteria for forbearance under section 10 with respect to rate caps and the mirroring rule. These rules remain necessary to prevent regulatory arbitrage and promote efficient investment in telecommunications services and facilities." It further states that "The FCC grants forbearance from growth caps and the new markets rule, finding that these rules are no longer in the public interest."

The FCC further announced in this release that "The FCC extends forbearance from growth caps and the new markets rule to all telecommunications carriers."

This proceeding is WC Docket No. 03-171. See, Core's July 17, 2003 petition [30 pages in PDF]. See also, the FCC's Order on Remand and Report and Order [72 pages in PDF], adopted on April 18, 2001, and released on April 27, 2001. This remand order is FCC 01-131 in CC Dockets Nos. 96-98 and 99-68. And see, May 3, 2002 opinion of the U.S. Court of Appeals (DC) in WorldCom v. FCC, 288 F.3d 429, cert. denied, 538 U.S. 1012 (2003), and story titled "DC Circuit Remands FCC Bill and Keep Order" in TLJ Daily E-Mail Alert No. 425, May 6, 2002.

10/7. The U.S. District Court (DC) issued its opinion [PDF] in Judicial Watch v. U.S. Senate, a case involving a claim that the Senate's rule that allows for the blocking of judicial nominees by filibuster constitutes an unconstitutional supermajority requirement. The District Court dismissed the complaint. The dismissal is based upon a strained application of the standing doctrine, rather than an application of the political question or separation of powers doctrines.

Judicial Watch, Inc. is a Washington DC based litigation group that frequently litigates in the federal courts. It filed a complaint in the District Court against the Senate, and several individual employees of the Senate, regarding its practice of blocking judicial nominations by filibusters, which under Senate Rule XXII and Senate Rule V can only be ended by a supermajority of 60%. Judicial Watch alleges that this has resulted in numerous judgeships remaining unfilled, which in turn, has resulted in increased delays in pending cases, including those brought by Judicial Watch.

The Senate moved to dismiss the claim, asserting that Judicial Watch lacks standing, that this is a nonjusticiable political issue, and that the claim is barred by the Speech or Debate clause of the Constitution.

The Court addressed only the standing issue. It held that Judicial Watch lacks standing.

Judge Colleen Kotelly (at left) wrote the opinion. She applied the three prong test set out in Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992). That is, standing requires that there be injury in fact, causation, and redressability.

She concluded that Judicial Watch fails to meet the injury in fact requirement because litigants are not injured by delays and backlogs in the litigation process. Plaintiffs have a right of access to the courts, but not a right to timely resolution of their claims.

Second, Judge Kotelly concluded that Judicial Watch's "claims of injury are simply too attenuated to be considered fairly traceable to the purportedly unconstitutional invocation of the cloture rule", and hence, Judicial Watch fails to meet the causation prong.

There are numerous roll call votes, published in the Congressional Record, which reflect that cloture votes to cut off filibusters of Appeals Court nominees, obtained a majority, but not a supermajority of 60%. The Department of Justice's Office of Legal Policy (OLP) states that there are currently 15 nominees to the Court of Appeals whose nominations are pending; 10 of these have been approved by the Senate Judiciary Committee, but have not received a vote on confirmation in the full Senate. See, OLP's nominations data web page. Moreover, the Judicial Conference of the United States has declared that judicial emergencies exist in several circuits and many districts.

Third, Judge Kotelly concluded that Judicial Watch's claim lacks redressability. That is, she asserted that declaring that the Senate's cloture rule is unconstitutional would not necessarily mean that votes would be held on the blocked judicial nominees.

Judge Kotelly was appointed to the Court by President Clinton, a Democrat. The practice that Judicial Watch challenges is being implemented by Senate Democrats to block President Bush, a Republican, from filling numerous Appeals Court judgeships, including several on the District of Columbia Circuit, which hears appeals from Judge Kotelly's judgments.

The Supreme Court has held unconstitutional other acts involving legislative processes. See for example, Powell v. McCormick, 395 U.S. 486 (1969) and Baker v. Carr, 369 U.S. 186 (1962) and its progeny.

This case is Judicial Watch, Inc. v. U.S. Senate, et al., D.C. No. 1-03-01066 (CKK).

10/13. The Department of Commerce's Bureau of Industry and Security (BIS/BXA) published a notice in the Federal Register that describes, and sets the comment deadline for, its notice of proposed rulemaking regarding amendments to the Export Administration Regulations (EAR). The BIS proposes to amend its EAR to revise the definition of knowledge to incorporate a reasonable person standard, and to replace the phrase "high probability" with "more likely than not". The BIS also proposes to revise the red flags guidance, and provide a safe harbor from liability arising from knowledge under that definition. Comments are due by November 12, 2004. See, Federal Register, October 13, 2004, Vol. 69, No. 197, at Pages 60829 - 60836.

10/13. The Office of the U.S. Trade Representative (USTR) published a notice in the Federal Register requesting public comments regarding its out of cycle reviews of Malaysia, Poland, and Taiwan, pursuant to Section 182 of the Trade Act of 1974, which is codified at 19 U.S.C. § 2242 (also known as Special 301), which requires the USTR to identify countries that deny adequate and effective protection of intellectual property rights or deny fair and equitable market access to U.S. persons who rely on intellectual property protection. See, notice in the Federal Register, October 13, 2004, Vol. 69, No. 197, at Pages 60928 - 60929. The deadline to submit comments is 12:00 NOON on November 5, 2004.

10/12. The Federal Communications Commission (FCC) issued a Public Notice [2 pages in PDF] regarding its "equipment authorization requirements for electronic musical instruments, recorders, amplifiers, and other sound creation and enhancement devices that are intended for or are capable of use with a personal computer." The notice states that musical equipment, digital recording devices and amplifiers are being "improperly marketed and imported into the US pursuant to our Verification procedures, despite associated instructions and marketing materials that clearly indicate that they contemplate a connection to a personal computer via a USB port or other connection". This Public Notice is DA 04-2253.

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The House and Senate are in recess until November 16, 2004.

Day one of a three day convention of the American Intellectual Property Law Association (AIPLA). See, conference web site and schedule [PDF]. Location: Grand Hyatt Washington, 1000 H St., NW.

8:00 AM. Robert Liscouski, Assistant Secretary of Homeland Security for Infrastructure Protection at the Department of Homeland Security (DHS), will speak at the October Breakfast Meeting of The Infrastructure Security Partnership (TISP). The price to attend is $30. For more information, contact Catherine Tehan at 703 295-6026 or ctehan@tisp.org. See, TISP notice. Location: Army Navy Club, 901 17th St., NW.

8:30 - 11:30 AM. The Software and Information Industry Association (SIIA) will host a seminar titled "Software Licensing Best Practices Seminar Series: How to Get the Most Out of Your Software License". See, notice. Prices vary. Location: Mintz Levin, 12010 Sunset Hills Road, Suite 900 Reston, Virginia.

9:30 AM. The Federal Communications Commission (FCC) will hold a meeting. The event will be webcast. Location: FCC, 445 12th Street, SW, Room TW-C05 (Commission Meeting Room).

9:00 AM - 5:00 PM. The Cato Institute will host a conference titled "International Monetary Reform and Capital Freedom". Among the topics on the agenda is "exchange rate protectionism". See, notice and agenda. Location: Cato, 1000 Massachusetts Ave., NW.

12:00 NOON - 2:00 PM. The DC Bar Association's Law Practice Management and Litigation Sections will host a program titled "Electronic Legal Research: New Options And Issues For Small And Large Firms". The speakers will be Elizabeth LeDoux (Training & Research Librarian at Covington & Burling), Howard Sinclair (Librarian at Kilpatrick & Stockton), and Monique LaForce (Manager Research Services at Steptoe & Johnson). See, notice. Prices vary from $15 to $20. For more information, call 202 626-3463. Location: D.C. Bar Conference Center, B-1 Level, 1250 H St., NW.

12:15 PM. The Federal Communications Bar Association's (FCBA) International Telecommunications Committee will host a brown bag lunch titled is "Planning Meeting to Discuss Proposed Programs and Obtain Suggestions for the Upcoming Year". RSVP to Evelyn Zamora at zamorae@coudert.com. Location: Coudert Brothers, 1627 I Street, NW, 11th Floor.

4:00 PM. Rochelle Dreyfuss (New York University School of Law) will present a paper titled "TRIPing over Patent Reform" at an event hosted by the Dean Dinwoodey Center for Intellectual Property Studies at the George Washington University Law School (GWULS). For more information, contact Robert Brauneis at 202 994-6138 or rbraun@law.gwu.edu. The event is free and open to the public. See, notice. Location: GWULS, Faculty Conference Center, Burns Building, 5th Floor, 716 20th St., NW.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Public Notice [PDF] requesting interested parties to provide comments on the Multi-band OFDM Alliance Special Interest Group's (MBOASIG) request for a waiver of Part 15 of the FCC's rules regarding ultra-wideband (UWB) systems that employ multi-band orthogonal frequency division multiplexed (MBOFDM) modulation techniques.

Day two of a three day convention of the American Intellectual Property Law Association (AIPLA). Jon Dudas, the Director of the U.S. Patent and Trademark Office (USPTO) will give a speech titled "American Ingenuity: What the USPTO is Doing for You" at a luncheon scheduled for 12:15 - 1:45 PM. See, conference web site and schedule [PDF]. Location: Grand Hyatt Washington, 1000 H St., NW.

LOCATION CHANGE. 12:00 NOON - 2:00 PM. The Progress and Freedom Foundation (PFF) will host a Congressional seminar titled "Reinventing the FCC for the Digital Age". The speakers will be Tom Lenard (PFF), Randolph May (PFF), James Miller (former head of the Office of Management and Budget and the Federal Trade Commission), Darius Gaskins (former Chairman of the Interstate Commerce Commission), and Susan Ness (former FCC commissioner). See, notice and registration page. Lunch will be served. Location: Room B-369, Rayburn Building.

TIME? Rochelle Dreyfuss (NYU) will give a lecture titled "Protecting the Public Domain of Science under International Law" as part of the Georgetown Law Colloquium on Intellectual Property & Technology Law. For more information, contact Julie Cohen at 202 662-9871 or Jay Thomas at 202 662-9925. Location: Georgetown University Law Center, 600 New Jersey Ave., NW.

Deadline to submit comments to the Federal Communications Commission (FCC) regarding the high cost universal support mechanisms for rural carriers and the appropriate rural mechanism to succeed the five year plan adopted in the Rural Task Force Order. See, notice in the Federal Register, September 3, 2004, Vol. 69, No. 171, at Pages 53917 - 53923.

Extended deadline to submit comments to the Federal Communications Commission (FCC) in response to its Notice of Inquiry (NOI) [15 pages in PDF] regarding "issues relating to the presentation of violent programming on television and its impact on children." This NOI is FCC 04-175 in MB Docket No. 04-261. See, story titled "FCC Issues NOI on Violent TV Programming" in TLJ Daily E-Mail Alert No. 950, August 2, 2004. See also, Order [PDF] extending the deadlines.

Day three of a three day convention of the American Intellectual Property Law Association (AIPLA). See, conference web site and schedule [PDF]. Location: Grand Hyatt Washington, 1000 H St., NW.

Deadline to submit comments to the Federal Communications Commission (FCC) in response to its notice of proposed rulemaking (NPRM) regarding "Internet Protocol (IP) Relay and Video Relay Service (VRS), including the appropriate cost recovery methodology for VRS, possible mechanisms to determine which IP Relay and VRS calls are intrastate and which are interstate for purposes of reimbursement, whether IP Rely and VRS should become mandatory TRS services, whether IP Relay and VRS should be required to be offered 7 days a week, 24 hours a day, and whether, when, and how we should apply the speed of answer rule to the provision of VRS." See, notice in the Federal Register, September 1, 2004, Vol. 69, No. 169, at Pages 53382 - 53385. The FCC adopted this NPRM on June 10, 2004, and released it on June 30, 2004. It is FCC 04-134 in CG Docket No. 03-123. Comments are due by October 18, 2004.

TIME? The U.S. District Court (DC) will hold a status conference in U.S. v. Microsoft, the government antitrust case against Microsoft.. On October 8, 2004, Microsoft, the Department of Justice (DOJ), and various state plaintiffs filed a Joint Status Report on Microsoft's Compliance with the Final Judgments. This case is D.C. No. 98-1232 (CKK), Judge Colleen Kotelly presiding. Location: Prettyman Courthouse, 333 Constitution Ave., NW.

12:00 NOON. The Federal Communications Bar Association's (FCBA) Executive Committee will meet. Location: Wiley Rein & Fielding, 1776 K Street, NW.

4:00 PM. The Federal Communications Bar Association's (FCBA) Legislative Committee will host an event titled "Afternoon Chat with Howard Waltzman". Waltzman is the Chief Counsel to the House Commerce Committee's Subcommittee on Telecommunications and the Internet. RSVP to hmarshall@wrf.com. Location: Wiley Rein & Fielding,1776 K Street, NW.

10:00 AM. Jeffrey Carlisle, Chief of the Federal Communications Commission's (FCC) Wireline Communications Bureau (WCB), will hold an event titled "briefing for members of the media". RSVP to Mark Wigfield at 202 418-0253. Location: FCC, 445 12th St., SW, Room TW A-402/A-442.

11:00 AM - 12:30 PM. The Cato Institute will host a panel discussion titled "The Next Big Thing in Copyright? The Induce Act and Contributory Liability". Location: Cato, 1000 Massachusetts Ave., NW.

TIME? The Federal Communications Bar Association (FCBA) will host a breakfast. The speaker will be Dan Glickman, the new head of the Motion Picture Association of America (MPAA). Location: Capitol Hilton, 16th & K Streets, NW.

6:00 - 8:15 PM. The DC Bar Association's Computer and Telecommunications Law Section will host a continuing legal education (CLE) program titled "Ethics and the Internet". The speaker will be J.T. Westermeier (Piper Rudnick). See, notice. Prices vary from $80 to $115. For more information, call 202 626-3488. Location: D.C. Bar Conference Center, B-1 Level, 1250 H St., NW.

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in In Re AT&T, No. 03-1397. Judges Ginsburg, Sentelle and Randolph will preside. Location: Prettyman Courthouse, 333 Constitution Ave., NW.

12:15 PM. The Federal Communications Bar Association's (FCBA) Cable Practice Committee will host a brown bag lunch. Jeffrey Carlisle, Chief of the Federal Communications Commission's (FCC) Wireline Competition Bureau will speak on "VOIP and Cable". RSVP to Frank Lloyd 202 434-7309 or flloyd@mintz.com. Location: 9th Floor, Mintz Levin, 701 Pennsylvania Ave., NW.

4:00 PM. Michael Carrier (Rutgers University Law School) will present a paper titled "Cabining Intellectual Property Through a Property Paradigm" at an event hosted by the Dean Dinwoodey Center for Intellectual Property Studies at the George Washington University Law School (GWULS). For more information, contact Robert Brauneis at 202 994-6138 or rbraun@law.gwu.edu. The event is free and open to the public. See, notice. Location: GWULS, Faculty Conference Center, Burns Building, 5th Floor, 716 20th Street, NW.

6:00 - 8:00 PM. The Federal Communications Bar Association (FCBA) will host the first part of a two part continuing legal education (CLE) seminar on Homeland Security.