Tech Law Journal Daily E-Mail Alert
March 23, 2005, 9:00 AM ET, Alert No. 1,101.
Home Page | Calendar | Subscribe | Back Issues | Reference
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 application.

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 remedy.

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, brief [104 pages in PDF] of the City of Rancho Palos Verdes, and brief [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."

See also, 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 9th Circuit.

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 Federal Elections 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.

The purported 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 letter [PDF] 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 speech."

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 Regulate Blogs

3/21. The Federal Election Commission (FEC) published in its web site a letter [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 ("blogs")."

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 (R-TX).

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 release.

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.

More News

3/21. The Supreme Court denied certiorari, without opinion, in Tony Colida v. Kyocera Wireless Corporation, Sup. Ct. No. 04-8137. See, Order 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 Service

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, Melcher's 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 service."

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, House calendar.

The Senate will not meet. It will return from its Spring recess at 2:00 PM on Monday, April 4. See, Senate calendar.

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 Floor.

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 Jason 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 notice and registration 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, notice. Location: 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), Gregory Rosston (Stanford University, Stanford Institute for Economic Policy Research), Jonathan Nuechterlein (Wilmer Cutler, and former FCC Deputy General Counsel), Philip Weiser (University of Colorado), Thomas Hazlett (Manhattan Institute), John Mayo (Georgetown University, McDonough School of Business), Scott Wallsten (AEI Brookings), 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, notice of 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 St., NW.

Day three of a four day convention and expo hosted by the Access Intelligence (formerly named PBI Media) titled "Satellite 2005". See, notice. Location: 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, notice. Location: Washington Convention Center.

Sunday, March 27


Monday, March 28

RESCHEDULED FROM MARCH 16. 12:30 PM. The Federal Communications Bar Association (FCBA) will host a luncheon. The speaker will be Federal Communications Commission (FCC) Commissioner Michael Copps. See, registration form [PDF]. The deadline for reservations and cancellations is March 24 at 5:00 PM. Prices range from $35 to $65. Location: J.W. Marriott Hotel, 1331 Pennsylvania Avenue, NW, Lower Level.

Tuesday, March 29

The Supreme Court will hear oral argument in MGM v. Grokster. See, March calendar [PDF].

The Supreme Court will hear oral argument in the Brand X case. See, March calendar [PDF].

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 notice and conference web site. Location: NIST, Gaithersburg, MD.

Day one of a two day conference hosted by 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 Public 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 and 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 Pages 9570-9573.

About Tech Law Journal

Tech Law Journal publishes a free access web site and subscription e-mail alert. The basic rate for a subscription to the TLJ Daily E-Mail Alert is $250 per year. However, there are discounts for subscribers with multiple recipients. Free one month trial subscriptions are available. Also, free subscriptions are available for journalists, federal elected officials, and employees of the Congress, courts, and executive branch. The TLJ web site is free access. However, copies of the TLJ Daily E-Mail Alert are not published in the web site until one month after writing. See, subscription information page.

Contact: 202-364-8882.
P.O. Box 4851, Washington DC, 20008.

Privacy Policy
Notices & Disclaimers
Copyright 1998 - 2005 David Carney, dba Tech Law Journal. All rights reserved.