3/21. The Supreme Court of the State of Utah granted certiorari in Fenn v. MLeads Enterprises, a case regarding whether a state court can exercise personal jurisdiction, in a case brought under a state anti-spam statute, over an out of state defendant, based solely upon the defendant having contracted with an agent who sent one unsolicited e-mail to a person within the state.

The Utah District Court (a trial court) dismissed the case for lack of personal jurisdiction. The Utah Court of Appeals (an intermediate appellate court) reversed. The Supreme Court of Utah granted certiorari on March 17, 2005. However, it did not mail out the order until March 21.

Various courts, federal and state, and U.S. and foreign, have begun to grapple with the issue of what internet based activities give a forum personal jurisdiction over an out of forum defendant. Some cases are in conflict. The U.S. Supreme Court has not yet weighed in. The Court of Appeals of Utah wrote in its November 12, 2004 split opinion that "This issue is a matter of first impression in Utah and, as far as our research has revealed, in all of the United States." Soon, the Utah Supreme Court will rule on this issue.

Brittney Fenn, the plaintiff, is a resident of Utah. MLeads Enterprises, Inc., the defendant, is an Arizona corporation that is based in Arizona. It is a mortgage lead company. These companies typically develop collections of data on consumers seeking mortgages, and then sell data to mortgage lenders. One method that these companies use to obtain data is to send bulk unsolicited e-mail. MLeads contracted with a marketing agent to advertise MLeads's services to consumers. MLeads' agent sent an e-mail to Fenn.

Fenn filed a complaint in District Court in Utah against MLeads and ten John Doe defendants. Fenn also seeks to sue on behalf of others similarly situated.

The District Court did not develop a full factual record before dismissing. The Court of Appeals wrote that "Because the trial court disposed of this case at an early stage, some important facts remain unresolved. Specifically, the parties dispute whether Fenn had consented to receive the email in a previous visit to the website of a related entity and whether MLeads or its marketing agent had any means to discover the physical location or residency of the recipients of its email. The record also contains no information as to the nature of the agreement between MLeads and its marketing agent. We similarly have no information on whether an automated system or an employee generated the email."

Nevertheless, the District Court dismissed for lack of personal jurisdiction over MLeads.

A three judge panel of the Court of Appeals reversed, in a 2-1 split. The majority concluded that the exercise of jurisdiction over MLeads is authorized by the Utah long arm jurisdiction statute, and is consistent with the due process protections articulated by the U.S. Supreme Court in International Shoe v. Washington, 326 U.S. 310 (1945), and its progeny.

The Court of Appeals of Utah concluded that "Sending one email to a resident of Utah is sufficient ``contact´´ to satisfy the long-arm statute and the minimum contacts requirement of due process for a statutory claim arising from the sending of that email. Additionally, the state's and Fenn's interests in this case trump the burdens imposed upon MLeads. Thus, we hold that the district court ruled incorrectly in dismissing this case on summary judgment for lack of personal jurisdiction."

The Court explained that Utah applies a four part due process analysis. First, the court considers whether the defendant purposefully availed itself of the privilege of conducting activities in the forum state, Utah. Second, the court considers whether the claim arose out of the defendant's Utah activity. Third, the court considers whether the defendant should have been able to reasonably anticipate being haled into court in Utah. Fourth, the court considers the state's interest and fairness to the parties.

The Court reasoned that the purposeful availment prong is met simply if the defendant causes an e-mail to be sent to someone in the forum state. The Court also reasoned that sending an e-mail is purposeful conduct, and hence, the sender should reasonably anticipate being haled into court in the recipient's state.

Finally, the Court considered the state's interest and fairness to the parties. The Court, of course, noted that states have an interest in enforcing their statutes. But, the Court also found that it is pertinent that "Utah benefits from its attorneys earning fees".

Judge Norman Jackson wrote the opinion of the Court of Appeals, in which Judge Gregory Orme joined. Judge Russell Bench dissented, without writing a separate opinion. However, he, in effect, wrote a dissent to the majority opinion in the present case in a later related case.

The related case is Amanda Weaver v. DirectLink Media Group, LLC. This is also a civil action brought in the state of Utah alleging violation of Utah's anti-spam statute. The District Court dismissed the action for lack of personal jurisdiction over the defendant. The same three judge panel of the Court of Appeals reversed. The Court of Appeals wrote in its opinion that "this case is factually identical to our recent case, Fenn v. MLeads Enterprises, Inc. ..." That opinion is also published at 2004 UT App 471.

Judge Bench wrote in Weaver that "I dissented in Fenn because I do not believe that a single email can vest Utah with personal jurisdiction over the defendant-sender where the plaintiff-recipient alleges no injury resulting from the transmission of the email. In order to satisfy the jurisdictional inquiry, due process requires that a nonresident defendant ``purposefully avail[] itself of the privilege of conducting activities within the forum state.´´ ... This ``requirement ensures that a defendant will not be haled into a jurisdiction solely as a result of . . . 'attenuated' contacts.´´ " (Citations omitted.)

He continued that "It is difficult to imagine a more attenuated contact than the one presented here: a single email message sent to a lone Utah recipient", and that "The single email rule established by Fenn therefore improperly ignores the ``'quality and nature'´´ of the defendant's contact, vesting jurisdiction based solely on a single contact within Utah, however trivial".

The present case is Brittney Fenn v. MLeads Enterprises, Inc., Supreme Court of the State of Utah, Sup. Ct. No. 20041072-SC, a petition for writ of certiorari to the Court of Appeals. The Court of Appeals case number is 20030948-CA. Its opinion is reported at 2004 UT App 412 and 103 P.3d 156. The case was filed in the District Court, Third District, Sandy Department, Judge Denise Lindberg presiding. Its case number is 030400108.

MLead is represented by Jill Dunyon, of Snow, Christensen and Martineau in Salt Lake City, Utah, and Derek Newman and Venkat Balasubramani of Newman & Newman in Seattle, Washington.

The plaintiffs in both cases are represented by Daniel Garriott and Denver Snuffer of Sandy, Utah, and Jesse Riddle of Draper, Utah.

The is another noteworthy case in Utah, Brittney Fenn v. Redmond Venture, Inc. The plaintiff is the same as in Fenn v. MLeads. The claim is also violation of Utah's anti-spam statute. The District Court granted summary judgment to Redmond on that grounds that Redmond could not be held liable for the actions of its independent contractors that sent the unsolicited e-mail. The Court of Appeals affirmed. See, opinion.

3/23. The Federal Election Commission (FEC) released late on Wednesday, March 23, a draft [48 page PDF scan] of the notice of proposed rulemaking (NPRM) to be voted upon at the FEC's 10:00 AM meeting on Thursday, March 24. This draft NPRM contains many proposed changes to the FEC's rules pertaining to regulation of internet activity. These draft rules reflect an effort on the part of the FEC not to impose the federal election campaign regulatory regime upon individuals who, without compensation, engage in political speech in their own blogs, web sites, or e-mailings.

The FEC is conducting this rulemaking proceeding because the U.S. District Court (DC), Judge Colleen Kotelly presiding, vacated and remanded many of the FEC's previously promulgated regulations implementing the McCain Feingold Act. See, Shays v. FEC, 337 F.Supp.2d 28 (D.D.C. 2004). This bill, titled the Bipartisan Campaign Reform Act of 2002 (BCRA), amends the Federal Election Campaign Act (FECA).

The BCRA includes a definition of "public communication", which is now codified at 2 U.S.C. § 431(22). It 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, could be subject to regulation under the FECA as "public communication"s.

The NPRM now proposes to would revise §100.26 to provide that "Public communication means a communication by means of any broadcast, cable, 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 term ``general public political advertising´´ shall not include communications over the Internet, except for announcements placed for a fee on another person's or entity's website."

The NPRM also proposes to revise its rules implementing the "press exemption" of the FECA, to take into consideration certain internet activities. First, the NPRM proposes to revise §100.73 to provide that "Any cost incurred in covering or carrying a news story, commentary, or editorial by any broadcasting station (including a cable television operator, programmer or producer), newspaper, magazine, or other periodical publication, whether the news story, commentary, or editorial appears in print or over the Internet, is not a contribution unless the facility is owned or controlled by any political party, political committee, or candidate ..." (Parentheses in original.)

Second, the NPRM proposes to revise §100.132 to provide that "Any cost incurred in covering or carrying a news story, commentary, or editorial by any broadcasting station (including a cable television operator, programmer or producer), newspaper, magazine, or other periodical publication, whether the news story, commentary, or editorial appears in print or over the Internet, is not an expenditure unless the facility is owned or controlled by any political party, political committee, or candidate ..." (Parentheses in original.)

The NPRM also would revise the rules pertaining to "contributions" and "expenditures" to clarify that certain uncompensated activities on the internet by individuals are not included. For example, the NPRM proposes to provide that "No contribution results where an individual, acting independently or as a volunteer, without receiving compensation, performs Internet activities using computer equipment and services that he or she personally owns for the purpose of influencing any Federal election, whether or not the individual's activities are known to or coordinated with any candidate, authorized committee or party committee."

The relief proposed by this draft NPRM would be limited almost exclusively to unpaid individuals. Internet based activities of corporations, non-profit corporations, and groups would remain largely unaffected by these proposed rules changes. One exception is a proposal to exempt "occasional, isolated and incidental" use of company computers by company employees in volunteer efforts on behalf of federal election campaigns.

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.

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.

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.

Easter.

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.

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.

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 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 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.

Day two 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 two 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 comments to the Office of the U.S. Trade Representative's (USTR) Trade Policy Staff Committee on the scope of the environmental review of the multilateral negotiations of the Doha Development Agenda (DDA) conducted under the auspices of the World Trade Organization (WTO). The deadline to submit comments is March 31, 2005. See, notice in the Federal Register, January 14, 2005, Vol. 70, No.10, at Pages 2695 - 2696.

Deadline to submit initial comments to the Federal Communications Commission (FCC) regarding TSA Stores, Inc.'s Petition for Declaratory Ruling to preempt a provision of the statutes of the state of Florida as applied to interstate telephone calls. This is CG Docket No. 02-278, which pertains to rules implementing the Telephone Consumer Protection Act of 1991 (TCPA). See, notice in the Federal Register, March 1, 2005, Vol. 70, No. 39, at Pages 9875-9876.

3/23. John Stanley was named acting Legal Advisor to Federal Communications Commission (FCC) Commissioner Kathleen Abernathy. He will have primary responsibility for wireline competition issues, and will assist with some media issues. In addition, Matthew Brill, Abernathy's Senior Legal Advisor, will assume primary responsibility for media issues, and acting Legal Advisor John Branscome will be continue to be primarily responsible for wireless, international, and technology issues. See, FCC release [PDF].

3/23. President Bush announced his intent to nominate Timothy Adams to be Under Secretary of the Treasury for International Affairs. He previously worked on the Bush-Cheney 2004 election campaign. Before that, he was Chief of Staff at the Department of the Treasury. And before that, he worked on the Bush-Cheney 2000 election campaign. See, White House release.

3/23. President Bush announced his intent to designate Arnold Havens the Acting Deputy Secretary of the Treasury. He is the General Counsel. See, White House release.

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