|4th Circuit Upholds TSR Provisions Regarding
Fundraising on Behalf of Charities
8/26. The U.S. Court of Appeals (FedCir)
issued its divided
opinion [36 pages in PDF] in National Federation of the Blind v. FTC,
upholding the FTC's rules that regulate abusive practices by professional fundraisers at
for profit companies who solicit donations on behalf of charities.
The Telemarketing Consumer Fraud and Abuse Prevention Act, as amended, instructs
the Federal Trade Commission (FTC) to promulgate rules
prohibiting deceptive and other abusive telemarketing acts or practices. The Act defines
"telemarketing" to cover charitable solicitations. However, the Act does not give
the FTC authority to regulate charitable entities. The FTC's Telemarketing Sales Rule (TSR)
regulates deceptive and abuse telemarketing by commercial entities that solicit on behalf
of charities. Telemarketing activities conducted by charities remain unregulated.
The National Federal of the Blind and Special Olympics Maryland, Inc., filed a complaint
in U.S. District Court (D-Md) against the FTC seeking declaratory relief that some of the
TSR's provisions that apply to entities that solicit on behalf of charities are beyond the
FTC's statutory authority and in violation of the First and Fourteenth Amendments.
The plaintiffs challenge several of the TSR's provisions, including the prohibition
on calls before 8:00 AM of after 9:00 PM, the prohibition on abandoned call,
and the requirement that telemarketers transmit their name and phone number to
caller identification services.
The District Court granted summary judgment to the FTC. See, opinion reported
at 303 F. Supp. 2d 707. This appeal followed.
A three judge panel of the Court of Appeals affirmed, in a split opinion.
Judge Wilkinson wrote for the majority, while Judge Duncan dissented.
Wilkinson concluded that "Our Constitution does not prevent the democratic
process from affording the American family some small respite and sense of
surcease. We hold, therefore, that the FTC was authorized by Congress to
promulgate the TSR, and we find that the rule is consistent with the First
Amendment. Since it is "narrowly drawn" to serve the "strong subordinating
interest" of protecting residential peace, the TSR embodies a proper compromise
between the important speech interests of charities and the equally important
need to protect the public from excessive intrusions into the home."
This case is National Federation of the Blind, et al. v. FTC, U.S. Court of
Appeals for the 4th Circuit, App. Ct. No. 04-1378, an appeal from the U.S. District Court
for the District of Maryland, at Baltimore, D.C. No. CA-03-963-JFM, Judge Frederick Motz
presiding. Judge Harvey Wilkinson wrote the opinion of the Court of Appeals, in which Judge
Traxler joined. Judge Duncan wrote a dissent.
|11th Circuit Construes Driver's Privacy
8/26. The U.S. Court of Appeals (11thCir)
issued its opinion
[PDF] in Kehoe v. Fidelity Federal Bank and Trust, holding that a plaintiff
does not need to prove actual damages to recover liquidated damages for a violation of the
Driver's Privacy Protection Act (DPPA), which is codified at 18 U.S.C. § 2721, et seq.
The Congress enacted the DPPA in 1994, and amended it in 1999. The 1999 amendment
prohibited a state department of motor vehicles from disclosing an individual's driver's
license information without express permission from the individual.
§ 2724(a) provides that "A person who knowingly obtains, discloses or uses
personal information, from a motor vehicle record, for a purpose not permitted under this
chapter shall be liable to the individual to whom the information pertains, who may bring
a civil action in a United States district court." § 2724(b) provides that
"The court may award -- (1) actual damages, but not less than liquidated damages in
the amount of $2,500; (2) punitive damages upon proof of willful or reckless disregard of
the law; ..."
After the effective date of the amendment, the state of Florida
continued to sell to Fidelity Federal Bank and Trust the names and addresses of
individuals who had registered new motor vehicles or used motor vehicles less
than three years old within the preceding month in Palm Beach, Martin, and
Broward Counties. The bank used this information to send auto loan refinancing
solicitations to car owners. It obtained car ownership information on about
565,600 car owners.
James Kehoe is the named plaintiff in a class action lawsuit against the
bank. Class actions lawyers filed a complaint in the name of Kehoe in the U.S.
District Court (SDFl) against Fidelity alleging violation of the DPPA. The
complaint does not allege that any member of the class has been injured by the
disclosure of the information.
The class action lawyers seek statutory damages of $2,500 per violation, and
other relief. That is, they seek about $1.4 Billion, plus punitive damages.
The District Court granted summary judgment to the bank on the grounds that
the complaint did not plead actual damages, and that the statute requires actual
damages before an plaintiff can obtain statutory damages.
The Court of Appeals reversed. It held, as a matter of statutory
construction, that "A plaintiff need not prove a measure of actual damages to
recover liquidated damages under the DPPA, and certainly need not prove actual
damages to recover the other types of remedies listed in § 2724(b)", which
include punitive damages, costs, and attorneys fees.
However, it is unlikely that the District Court, on remand, will award $1.4
Billion. The remedies section uses the permissive word "may", rather than the
mandatory "shall". The Court of Appeals noted too that the word may "implies
a degree of discretion" and that "Thus, the district court, in its discretion, may
fashion what it deems to be an appropriate award."
This case is James Kehoe v. Fidelity Federal Bank and Trust, U.S.
Court of Appeals for the 11th Circuit, App. Ct. No. 04-13306, an appeal from the
U.S. District Court for the Southern District of Florida, D.C. No.
03-80593-CV-DTKH. Judge Wilson wrote the opinion of the Court of Appeals, in
which Judges Dubina and Coogler joined.
|People and Appointments
8/23. John Miller was named Assistant Director for the Office of Public
Affairs at the Federal Bureau of Investigation (FBI).
He replaces Cassandra Chandler, who has been named Special Agent in Charge of the
FBI’s Norfolk Virginia Division. See, FBI
release. Miller has
a background in both law enforcement and journalism. He was previously Chief of the Los
Angeles Police Department’s Counter-Terrorism and Criminal Intelligence Bureau. Before that,
he worked for ABC News covering terrorism. Before that, he worked for the New York City
Police Department. And before that, he worked for broadcast media in New York City. In 1998
he interviewed Osama bin Laden.
8/26. The Federal Bureau of Investigation
(FBI) announced that two men have been arrested, in Morocco and Turkey, in
connection with the creation and distribution of computers worms known as
Mytob and Zotob. The FBI stated in a
that "With the help of Moroccan authorities, Ministry of Interior Turkish
National Police , and valuable assistance from Microsoft Corporation, these
individuals were arrested yesterday without incident. Arrested in Morocco was
Farid Essebar, 18, a Moroccan national born in Russia who went by the screen
moniker ``Diabl0.´´ Arrested in Turkey was Atilla Ekici, aka ``Coder,´´ a 21-year
old resident of Turkey. Both individuals will be subject to local prosecutions."
See also, Microsoft
Zotob web page.
8/26. The Department of Commerce's National
Technical Information Service (NTIS) published a
notice in the Federal Register soliciting recommendations regarding
candidates to be members of the NTIS Advisory Board. See, Federal Register,
August 26, 2005, Vol. 70, No. 165, at Page 50303.
8/26. The U.S. Patent and Trademark Office (USPTO)
announced in a
release that its
Search System (TESS) "now features a new Trademark Official Gazette (TMOG)
``search line.´´ By entering the publication date of a particular TMOG into the new search
line, users can generate a list of all marks published for opposition in that TMOG, or a
list of all new registrations published in that TMOG."
|Washington Tech Calendar
New items are highlighted in red.
|Monday, August 29
The House will not meet on Monday, August 1 through Monday, September 5. See,
and Republican Whip Notice.
The Senate will not meet on Monday, August 1 through Monday, September 5. See,
The Supreme Court is between terms. The opening conference of its October
2005 Term will be held on September 26, 2005.
Deadline to submit initial comments to the
Federal Communications Commission (FCC) in response to
Notice [PDF] requesting comments on Continental Airlines' Petition for a Declaratory
Ruling regarding the state Massachusetts' attempt to regulate Wi-Fi hotspots. Continental
has installed a Wi-Fi hotspot for internet access and telecommunications at its frequent
flyer lounge at Boston Logan Airport (Logan). An issue is whether the demands of the
Massachusetts Port Authority for removal of the antenna are prohibited under the FCC's Over
the Air Reception Devices (OTARD) rules. This public notice is DA 05-2213 in ET Docket No.
|Tuesday, August 30
10:00 AM - 12:00 NOON. The Department of
State's (DOS) International Telecommunication Advisory Committee (ITAC) will
meet to prepare for the ITU-D's meetings of
Group 1 and
Group 2, which will take place in September, Geneva, on September 6-9 and 12-15,
notice in the Federal Register, July 8, 2005, Vol. 70, No. 130, at Pages
39544 - 39545. Location: Room 2533A, State Department.
1:30 - 3:00 PM. The
Federal Communications Commission's (FCC) Informal Working Group 2:
Satellite Services and HAPS will meet. See, FCC
notice [PDF]. Location: Leventhal Senter
& Lerman, 7th Floor Conference Room, 2000 K Street, NW.
Effective date of the Federal
Communications Commission's (FCC) VOIP customer lockout order. See, the order
contained in the FCC's document titled
Notice' [PDF], numbered DA 05-2085, and released on July 26, 2005. It requires, among
other things, that every interconnected voice over internet protocol (VOIP) service provider
must send every one of its subscribers an FCC mandated statement regarding E911, and that
every interconnected VOIP service provider must send to every one of its customers the FCC
mandated VOIP warning stickers. This order further requires that every interconnected VOIP
service provider obtain acknowledgement from every one of its subscribers, and that it
"disconnect, no later than August 30, 2005, all subscribers from whom it has not
received such acknowledgements".
|Wednesday, August 31
10:30 AM. The Heritage
Foundation will host a panel discussion titled "U.S. China Ties".
The speakers will be Randy Schriver (Armitage International), Perry Link (Princeton
University), John Tkacik (Heritage), and Harvey Feldman (Heritage). PR Chinese President
Hu Jintao will begin a visit to the U.S. on September 6. See,
Location: Heritage, 214 Massachusetts Ave., NE.
Deadline for the public to submit written comments to the
House Ways and Means Committee
regarding HR 3376, the "Tax Technical Corrections Act of 2005". See,
|Thursday, September 1
Compliance date of the Federal
Communications Commission (FCC) final rule that extends and modifies the
FCC Form 477 local competition and broadband data gathering program. See,
notice in the Federal Register, December 29, 2004, Vol. 69, No. 249, at Pages
77912 - 77938. The FCC's report and order is FCC 04-266 in WC Docket No. 04-141.
The mandatory electronic filing via the Cable Operations and Licensing System
(COALS) for FCC Forms 321, Aeronautical Frequency Notification, will commence. See,
FCC Public Notice DA 05-270, and
notice in the Federal Register, February 23, 2005, Vol. 70, No. 35, at
Deadline to submit comments to the
Federal Communications Commission (FCC) in response to its
notice [37 pages in PDF] regarding its plan to review rules adopted by the FCC in 1993,
1994 and 1995, pursuant to the Regulatory Flexibility Act of 1980, which is codified at
5 U.S.C. § 610. This public notice lists the rules to be reviewed. This public notice,
which is dated May 31, 2005, is numbered DA-05-1524. See also,
notice in the Federal Register, June 8, 2005, Vol. 70, No. 109, at Pages
33416 - 33426.
Deadline to submit to the
U.S. Trade Representative (USTR) requests to testify
at the USTR's September 14, 2005 public hearing on the People's Republic of China's
compliance with its World Trade Organization (WTO)
notice in the Federal Register, August 3, 2005, Vol. 70, No. 148, at Pages
44714 - 44715.
EXTENDED FROM AUGUST 22. Extended deadline to submit initial
comments to the Copyright Office regarding its
first report to the Congress required by the Satellite Home Viewer Extension and
Reauthorization Act of 2004. See, original
notice in the Federal
Register, July 7, 2005, Vol. 70, No. 129, at Pages 39343 - 39345. See also,
notice extending deadlines in the Federal Register, August 15, 2005, Vol.
70, No. 156, at Page 47857.
|Friday, September 2
Deadline for the public to submit written comments
to the House Ways and Means Committee's
Subcommittee on Trade regarding technical corrections to U.S. trade laws and
miscellaneous duty suspension bills. See,
|Sunday, September 4
Gallery of Art (NGA) will begin an exhibition technological advances in the storage and
transfer of information in 15th Century. It is titled "The Origins of European
Printmaking: 15th Century Woodcuts and Their Public". See, NGA
notice in the Federal Register, July 20, 2005, Vol. 70, No. 138, at Page
41808. This exhibition will run from September 4 through November 27, 2005.
Location: NGA, between the Mall and Constitution Ave., NW, and between 3rd and
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