|Supreme Court Holds That Individuals Who Sue
Under §332 Cannot Also Recover Damages Under §1983
3/22. The Supreme Court issued its
opinion [22 pages in PDF] in
Rancho Palos Verdes v. Abrams. The Supreme Court held that an individual
who brings an action to enforce the limitations on state and local authority to
regulate the location, construction, and modification of wireless communications
facilities under 47 U.S.C. § 332, cannot also recover damages under 42 U.S.C. § 1983.
Section 332, which was added to the Communications Act by the
Telecommunication Act of 1996, provides a cause of action for injunctive relief
against state and local governments that deny certain applications to build cell
towers. But, this statute does not provide for the recovery of monetary damages.
Section 1983 provides a cause of action for monetary damages for people who have
been deprived of federal rights by state or local governments. The
question before the Court was whether people whose rights under Section 332 have
been violated can sue under both Section 332 and Section 1983. The Supreme Court
held that they cannot. The remedies provided by Section 332 are exclusive.
42 U.S.C. § 1983 provides, in part, that "Every person who, under color of
any statute, ordinance, regulation, custom, or usage, of any State or Territory
... subjects, or causes to be subjected, any citizen of the United States or
other person within the jurisdiction thereof to the deprivation of any rights,
privileges, or immunities secured by the Constitution and laws, shall be liable
to the party injured in an action at law, suit in equity, or other proper
proceeding for redress."
47 U.S.C. § 332
limits the authority of state and local governments to regulate
the location, construction, and modification of wireless communications
facilities, including cell towers.
It provides, at § 332(c)(7)(A) that "Except as provided in this paragraph,
nothing in this chapter shall limit or affect the authority of a State or local
government or instrumentality thereof over decisions regarding the placement,
construction, and modification of personal wireless service facilities."
§ 332(c)(7)(B) then provides limitations to this general rule. § 332(c)(7)(B)(i)
provides that state and local governments "(I) shall not unreasonably discriminate
among providers of functionally equivalent services; and (II) shall not prohibit or have
the effect of prohibiting the provision of personal wireless services."
Then, § 332(c)(7)(B)(iv) provides that "Any person adversely
affected by any final action or failure to act by a State or local government or
any instrumentality thereof that is inconsistent with this subparagraph may,
within 30 days after such action or failure to act, commence an action in any
court of competent jurisdiction."
Mark Abrams owns real property in the City of Rancho Palos Verdes,
California. He applied to the city for a permit for a commercial communications
tower. The city had previously approved the tower for non-commercial use. He had
previously constructed and used the tower. The application only sought
permission to also use the tower for commercial use. The city rejected his
Abrams filed a complaint in U.S.
District Court (CDCal) against the city alleging violation of 47 U.S.C. §
332. He also sought damages under 42 U.S.C. § 1983. The District Court held that
the denial violated Section 332. It also held that Section 332 was Abrams' only
The U.S. Court of Appeals
(9thCir) reversed the District Court on the question of whether Abrams also
has a Section 1983 remedy. It held that he may both sue for injunctive relief
under Section 332, and recover attorneys fees and damages under Section 1983.
This opinion is also reported at 354 F.3d 1094.
The Supreme Court granted certiorari on September 28, 2004. The
Solicitor General filed an
amicus curiae brief urging the Supreme Court to reverse the Court of
Appeals. See also,
[104 pages in PDF] of the
City of Rancho Palos Verdes, and
[PDF] of Abrams.
Justice Antonin Scalia wrote the opinion of the Court. Justices Rehnquist,
O'Conner, Kennedy, Souter, Thomas, Ginsburg, and Breyer joined. That is, all but
Stevens joined in this opinion.
Scalia wrote that "Enforcement of §332(c)(7) through §1983 would
distort the scheme of expedited judicial review and limited remedies created by
§332(c)(7)(B)(v). We therefore hold that the TCA -- by providing a judicial
remedy different from §1983 in §332(c)(7) itself -- precluded resort to §1983.
The judgment of the Court of Appeals is reversed, and the case is remanded for
further proceedings consistent with this opinion."
Justice Breyer wrote a concurring opinion in which Justices O'Conner, Souter
and Ginsberg joined.
Justice Stevens wrote a concurring opinion. He concurred with the Court's
conclusion as to Section 332. However, he wrote that the Court has not "properly
acknowledged the strength of our normal presumption that Congress intended to
preserve, rather than preclude, the availability of §1983 as a remedy for the
enforcement of federal statutory rights."
release of the law firm of Miller &
Van Eaton, which represented the City of Rancho Palos Verdes.
This case is City of Rancho Palos Verdes v. Mark Abrams, Sup. Ct. No.
03–1601, a petition for writ of certiorari to the U.S. Court of Appeals for the
|Sen. Reid Introduces Bill to Exempt Internet
Communications From Certain FEC Regulation
3/22. Sen. Harry Reid (D-NV), the
Senate minority leader, introduced S 678, on March 17. This bill would amend the
Federal Election Campaign Act (FECA) with respect to internet communications.
Sen. Reid introduced the bill in reaction
to the September 18, 2004 Memorandum
Opinion and Order [159 pages in PDF] of the
U.S. District Court (DC) in Shays v.
FCC, which overturned many of the rules promulgated by the
Commission (FEC) to implement the Bipartisan Campaign Reform Act of 2002 (BCRA). The
BCRA, which is also known as the McCain Feingold Act, amended the FECA.
At issue is the definition of "public communication".
2 U.S.C. § 431(22) provides that "The term ``public communication´´ means a
communication by means of any broadcast, cable, or satellite communication, newspaper,
magazine, outdoor advertising facility, mass mailing, or telephone bank to the general
public, or any other form of general public political advertising."
The FEC wrote in its rules that "The term public communication shall not
include communications over the Internet." This is codified at 11 C.F.R. § 100.26.
The District Court held that the FEC lacked authority to do this. Hence,
internet communications, such as personal blogs, web sites, and e-mail, may be
subject to regulation under the FECA as "public communication"s.
purpose of the FECA, which has never been accomplished, has been to limit the
influence of money in federal elections. Regulation of activities such as
individual blogs would have an effect contrary to the purported purpose of the
FECA. It would limit political speech and inhibit political participation by
many people who do not have the ability to influence
elections with money.
The entire substance of Sen. Reid's bill is as follows: "Paragraph (22) of
section 301 of the Federal Election Campaign Act of 1971 (2 U.S.C. 431(22)) is amended
by adding at the end the following new sentence: ``Such term shall not include
communications over the Internet.'' That is, it would add to the statute the very
language of the regulation that the District Court held was contrary to the FECA.
The FEC has scheduled a meeting for March 24 at which it may adopt a notice
of proposed rulemaking (NPRM) on this subject.
In addition, Sen. Reid wrote a
to FEC Chairman Scott Thomas dated March 17 which the FEC published on March 22.
He wrote that "I am writing to express my serious concerns with the Federal
Election Commission's (FEC) pending rulemaking concerning internet
communications and your recent remarks in this regard. Today I introduced
legislation to make it clear that Congress did not intend to regulate this new
and growing medium in the" BCRA.
Sen. Reid continued that "the internet has provided a new and exciting medium
for political speech. It has generated a surge in grassroots involvement in our
government and has proven to be a democratizing medium in our political process.
Regulation of the internet at this time, with its blogs and other novel
features, would blunt its tremendous potential, discourage broad political
involvement in our nation and diminish our representative democracy."
He concluded that "One of your Democratic colleagues on the FEC recently made
clear in public remarks that the regulation of blogs in particular is neither
required by BCRA, or by the litigation surrounding the FEC's implementation of
that law. I urge you to work with her and your other FEC colleagues in the
coming weeks to avoid silencing this new and important form of political
See also, story titled "FEC to Consider Rules Regarding Internet
Speech" in TLJ Daily E-Mail Alert No. 1,100, March 22, 2005.
|Democratic Representatives Urge FEC Not to
3/21. The Federal Election Commission (FEC)
published in its web site a
[PDF] from fourteen Representatives regarding the FEC's forthcoming rulemaking
proceeding to revise its rules regarding regulation of internet communications.
See also, above story titled "Sen. Reid Introduces Bill to Exempt Internet
Communications From Certain FEC Regulation", and story titled "FEC to Consider
Rules Regarding Internet Speech" in TLJ Daily E-Mail Alert No. 1,100, March 22, 2005.
The Representatives wrote "to express our concern over the possible implications of U.S.
District Court Judge Colleen Kollar-Kotelly's decision in Christopher Shays &
Martin Meehan v. Federal Election Commission, 337 F.Supp.2d 28 (D.D.C. 2004), to
overturn the Federal Election Commission's (FEC) blanket exemption of the
Internet from the Bipartisan Campaign Reform Act of 2002 (BCRA). Specifically,
we are concerned about the impact this decision could have on internet weblogs
Almost all of the Representatives who signed the letter are Democrats. In
contrast, when the FEC considered appealing this issue to the Court of Appeals, the three
Republicans voted to appeal, while the three Democrats voted against the appeal.
The letter continues that "We have been advised the FEC will soon open a
rulemaking in this area. Many of us were strong supporters of campaign finance reform
generally, and of the BCRA. While the impact of the Shays decision on blogs remains subject
to debate, we urge you to remove any ambiguity and make explicit in this rule that a blog
would not be subject to disclosure requirements, campaign finance limitations or
other regulations simply because it contains political commentary or includes
links to a candidate or political party's website, provide that the candidate or
political party did not compensate the blog for such linking. We believe such an
interpretation is entirely consistent with the BCRA, which has helped to
mitigate the impact of soft money on politics. We also believe such an
interpretation would easily pass judicial muster as well."
"Throughout our nation's history, Americans have turned to the press for
information and analysis in order to make a more informed decision concerning
politics. The past decade has witnessed exponential growth of the Internet, as
well as in the number of Americans accessing the World Wide Web. Along with this
growth has been the emergence of Web reporters who play a critical role in
commentating on American political affairs and who seek to inform the debate in
an environment that is generally accessible by all."
They conclude that "In our view, this ``democratization´´ of media is a
welcome development in this era of media consolidation and a corresponding lack of
diversity of views in traditional media outlets. Given the emergence of this new method
of reporting and Americans' increasing reliance on it for their political information, it is
critical that BCRA's press exemption should be clarified to apply to those who
are reporting on the Internet."
The letter is dated March 11. The FEC's date stamp on the letter is March 21.
The letter is signed by Rep. John Conyers
(D-MI), Rep. Rick Boucher (D-VA),
Rep. Zoe Lofgren (D-CA), Rep. Adam Smith
(D-WA), Rep. Maxine Waters (D-CA), Rep. Jim McDermott (D-WA), Rep. Lynn Woolsey (D-CA),
Rep. Luis Gutierrez (D-IL), Rep. Raul Grijalva (D-AZ), Rep. Jim McGovern (D-MA), Rep.
Sheila Lee (D-TX), Rep. Chaka Fattah (D-PA), Rep. Bernie Sanders (I-VT), and Rep. Ron Paul
|People and Appointments
3/21. Joe Whitley, General Counsel of the
Department of Homeland Security (DHS),
resigned, effective as of a date to be determined. See, DHS
3/17. The Senate confirmed John Schieffer to be Ambassador to Japan.
See, Congressional Record, March 17, 2005, at page S3092.
3/17. The Senate confirmed Christopher Hill to be an Assistant
Secretary of State for East Asian and Pacific Affairs. See, Congressional
Record, March 17, 2005, at page S3092.
3/21. The Supreme Court
denied certiorari, without opinion, in Tony Colida v. Kyocera Wireless
Corporation, Sup. Ct. No. 04-8137. See,
List [21 pages in PDF].
3/14. The Government Accountability Office
(GAO) released a report [26 pages
in PDF] titled "Defense Microelectronics: DOD-Funded Facilities Involved in Research
Prototyping or Production".
|Texas Sues Vonage Over Marketing of VOIP
3/22. The Attorney General of the State
of Texas filed a
complaint [14 pages in PDF] in state court in Austin, Texas, against
Vonage alleging violation of the Texas Deceptive
Trade Practices Act (DTPA) in connection with Vonage's marketing and sale of voice over
internet protocol (VOIP) service.
The complaint alleges that Vonage has engaged in
deceptive marketing of its VOIP service by failing to clearly inform consumers
of the difference between its 911 service and "traditional 911 service".
The complaint does not seek to compel Vonage to provide any type of 911 service.
Rather, the state of Texas seeks monetary damages from Vonage. It also seeks injunctive relief,
to bar Vonage from continuing to engage in deceptive marketing practices.
Texas Attorney General Greg Abbott stated in a
release that this complaint follows an incident in Houston, Texas, in which
a Vonage customer tried unsuccessfully to reach emergency assistance during a
home invasion and shooting.
John Melcher, Executive Director of the Greater Harris County 9-1-1 Emergency
Network , testified at a House hearing on March 16, 2005 regarding this incident. See,
prepared testimony [PDF].
The complaint states that Vonage "markets its VoIP service as a ``replacement´´ for
traditional telephone service and specifically represents to consumers that
``Vonage works just like the telephone service you have in your home today´´; that
its VoIP service is ``an all inclusive home phone service that replaces your
current phone company...´´; and that ``this is like the home phone service you
have today -- only better.´´
It alleges that Vonage's "representations that its VoIP services replace
traditional phone service are misleading, false and confusing because in fact,
the ``911´´ feature of its service is vastly different from the traditional 9-1-1
service which consumers in Texas enjoy and rely upon."
The complaint alleges that Vonagae "does not clearly and conspicuously disclose to
consumers these very significant differences between its ``911´´ feature and
traditional 9-1-1 service." The complaint identifies four areas of difference.
First, the complaint states that "when a consumer using Defendant's VoIP service
dials the digits 9-1-1 on his or her telephone, that call is not immediately directed to
the appropriate local Public Safety Answering Point (PSAP) through the local 9-1-1 network
because Defendant does not have interconnection agreements with incumbent telephone
companies and has not contracted with other entities who have such agreements. Thus, a
consumer’s emergency call is routed by a private third party to the closest PSAP through
the PSAP’s administrative line. These administrative lines are regular business lines
which have the lowest answering priority at these emergency call centers. In some locations,
these administrative lines are not answered outside of regular business hours. In other
locations, these administrative lines are answered by an Interactive Voice Response System
which informs callers that if they have an emergency, they should call 9-1-1. Further,
when the call is routed to the PSAP, the operator who answers will not know the telephone
number and location of the caller. Therefore, if the caller cannot provide the address
from which he or she is calling or if the call is disconnected, no emergency assistance
will be sent."
Second, the complaint states that "unlike traditional telephone service, the
``911´´ feature of Defendant's VoIP service is not automatic. Instead, after a consumer
purchases and installs Defendant's system, he or she must separately activate Defendant's
``911´´ feature by completing an online form and providing a home address."
Third, the complaint states that Vonage's "VoIP service and access to its ``911´´
feature is dependent upon several factors that are generally not an issue with a standard
telephone line. For example, traditional telephone service is powered directly by the
telephone company through the telephone line. This system includes a backup for electrical
outages so that when the electricity goes out, the telephone service is still operational.
Defendant’s VoIP service does not have a backup ..."
The complaint also states that VOIP service is "dependent upon a continuous
broadband connection, making it susceptible to hardware and software malfunctions and
traditional Internet restrictions such as network congestion. Similarly, Defendant’s VoIP
system is subject to Internet hackers and viruses that may result in a disruption in
service. And unlike traditional telephone service in which carriers are required to provide
consumers with notice prior to disconnection, no such notice requirement applies to VoIP
Finally, the complaint states that "one of the unique benefits to consumers
in purchasing Defendant’s VoIP service, as advertised by Defendant, is the ability to
take the VoIP phone anywhere that has a broadband Internet connection. Defendant fails
to clearly and conspicuously disclose, however, that if an individual dials 9-1-1 using
his or her VoIP phone at a location other than home, the call will be routed to the
appropriate PSAP based upon the address information that Vonage has stored in its network
-- not the customer's actual physical location. As a result, the individual's call will be
routed to the wrong PSAP to provide emergency assistance."
|Washington Tech Calendar
New items are highlighted in red.
|Wednesday, March 23
The House will not meet. It will return from its Spring recess at 2:00 PM on
Tuesday, April 5. See,
The Senate will not meet. It will return from its Spring recess at 2:00 PM on Monday, April
12:00 NOON. The
Center for Digital Democracy will
hold news conference on FCC v. Brand X. The Supreme Court will
hear oral argument on March 29, 2005. For more information,
contact Jeff Chester at 202 986-2220. Location: Murrow Room,
National Press Club, 529 14th St. NW, 13th
12:15 PM. The Federal Communications Bar
Association's (FCBA) Young Lawyers Committee will host a brown bag lunch. The
topic will be "The FCC's Fiber Unbundling Rules - Is the TRO Working?".
For more information, contact
Friedrich at 202 354-1340 or jason dot friedrich at dbr dot com. Location:
Drinker Biddle & Reath, 1500 K St., NW.
Day two of a two day conference hosted by the
National Institute of Standards and Technology
(NIST) and the
Federal Information Systems Security Educators' Association (FISSEA)
titled "FISSEA Conference: Target Training in 2005: Computer Security
Awareness, Training, and Education". See, NIST
page. Location: Bethesda North Marriott Hotel and Conference Center, 5701
Marinelli Road, North Bethesda, MD.
Day two of a four day convention and expo hosted by the
Access Intelligence (formerly named PBI
Media) titled "Satellite 2005". See,
Washington Convention Center.
|Thursday, March 24
10:00 AM. The
Federal Election Commission (FEC) will hold a meeting. It will consider FEC
regulation of internet speech. The FEC's
notice of this meeting in the Federal Register states only that the items
to be discussed include "Notice of Proposed Rulemaking on the Internet:
Definitions of ``Public Communication´´ and ``Generic Campaign Activity,´´ and
Disclaimers." See, Federal Register, March 18,
2005, Vol. 70, No. 52, at Page 13197. Press contact: Robert Biersack at 202 694-1220. Location: FEC, 9th
Floor, 999 E St. NW.
10:00 AM - 1:30 PM. The American Enterprise
Institute (AEI) will host a panel discussion and luncheon titled "The
Future of Telecom Deregulation: Two Alternate Visions". The panel will be
comprised of Robert
Hahn (AEI Brookings Joint Center for Regulatory Studies),
(Stanford University, Stanford Institute for Economic
Policy Research), Jonathan
Nuechterlein (Wilmer Cutler, and former FCC Deputy General Counsel),
(University of Colorado),
John Mayo (Georgetown University,
McDonough School of Business),
Robert Litan (AEI Brookings).
Nuechterlein, Weiser and Hazlett will present papers. David Dorman, Ch/CEO of
AT&T, will be the luncheon speaker. See,
notice. Location: AEI, 12th floor, 1150 17th St., NW.
10:00 AM - 12:00 NOON. The Antitrust
Modernization Commission (AMC) will meet. See,
notice in the Federal Register, February 22, 2005, Vol. 70, No. 34, at
Page 8568. Location: Federal Trade Commission
(FTC), Conference Center Rooms A & B, 601 New Jersey Ave., NW.
4:00 PM. Sara
Stadler (Emory University School of Law) will present a draft paper titled
"How Copyright is Like a Mobius Strip". See,
event. (Stadler is also known as Nelson.) This event is part of the Spring 2005
Intellectual Property Workshop Series sponsored 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 at law dot gwu dot edu. The event is free and open to the public.
Location: GWULS, Faculty Conference Center, Burns Building, 5th Floor, 716 20th
Day three of a four day convention and expo hosted by the
Access Intelligence (formerly named PBI
Media) titled "Satellite 2005". See,
Washington Convention Center.
|Friday, March 25
5:00 PM. Deadline to submit initial comments to the
Copyright Office (CO) in response to
its notice of inquiry (NOI) regarding orphan works -- copyrighted works
whose owners are difficult or impossible to locate. The CO stated in a
notice in the Federal Register that it seeks public comments on "whether
there are compelling concerns raised by orphan works that merit a legislative,
regulatory or other solution, and what type of solution could effectively
address these concerns without conflicting with the legitimate interests of
authors and right holders." See, Federal Register, January 26, 2005, Vol. 70,
No. 16, at Pages 3739 - 3743.
Day four of a four day convention and expo hosted by the
Access Intelligence (formerly named PBI
Media) titled "Satellite 2005". See,
Washington Convention Center.
|Tuesday, March 29
The Supreme Court will hear
oral argument in MGM v. Grokster. See, March
The Supreme Court will hear
oral argument in the Brand X case. See, March
10:00 AM - 1:00 PM. The Federal
Communications Commission's (FCC) Network Reliability
and Interoperability Council (NRIC) will meet. See,
notice in the Federal Register, March 1, 2005, Vol. 70, No. 39, at Page
9951. Location: FCC, Room TW-305, 445 12th St., SW.
Deadline to submit reply comments to the
Federal Communications Commission (FCC) regarding the progress made by the states
in implementing E911 solutions for multi-line telephone systems (MLTSs). See,
notice in the Federal Register, January 13, 2005, Vol. 70, No. 9, at Pages
2405 - 2406.
|Wednesday, March 30
12:00 PM. The Cato
Institute will host a panel discussion titled "The Case for CAFTA:
Consolidating Central America’s Freedom Revolution". The speakers will be
Daniel Griswold and
Daniel Ikenson of the Cato's Center for Trade Policy Studies. See,
notice and registration page.
Lunch will be served. Location: Room B-354, Rayburn Building, Capitol Hill.
Day one of a two day conference hosted by the
National Institute of Standards and Technology (NIST),
the Department of Homeland Security (DHS), and other entities titled "Workshop on
Biometrics and E-Authentication Over Open Networks". See, NIST
conference web site.
Location: NIST, Gaithersburg, MD.
Day one of a two day conference hosted by
Isen.com titled "F2C: Freedom to Connect".
Prices ranges from $250 to $350. See,
conference web site. Location:
AFI Silver Theatre
and Cultural Center, 8633 Colesville Road, Silver Spring, Maryland.
Deadline to submit to the
Federal Communications Commission (FCC)
petitions to deny Nextel's and
Sprint's joint applications for FCC approval of
the transfer of control to Sprint of the licenses and authorizations held both by Nextel.
That is, this is a merger review proceeding. See, FCC
Notice [7 pages in PDF], No. DA 05-502, in WT Docket No. 05-63. On December 15,
2004, the two companies announced a "definitive agreement for a merger of
equals". See, Nextel release
Deadline to submit comments to the U.S.
Patent and Trademark Office (USPTO) in response to its notice of proposed
rulemaking regarding changes to patent and trademark fees. See,
notice in the Federal Register, February 28, 2005, Vol. 70, No. 38, at
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