4/11. The U.S. Court of Appeals (DCCir) issued its opinion [12 pages in PDF] in Virgin Island Telephone v. FCC, a case regarding telephone tariffs, and the "deemed lawful" provisions of the Telecommunications Act of 1996.

Virgin Islands Telephone Corporation (Vitelco), a local phone company, filed a petition for review of a Federal Communications Commission (FCC) order regarding the rates that Vitelco charged AT&T to complete its calls to Vitelco customers. The FCC held that Vitelco's streamlined tariff was not "deemed lawful" under 47 U.S.C. § 204(a)(3), and that Vitelco was therefore liable to AT&T for damages. See also, FCC brief [51 pages in PDF].

The Court of Appeals reviewed the law regarding tariffing, legal and lawful tariffs, the 1996 provisions regarding "deemed lawful", and suspension of tariffs by the FCC. It then granted the petition for review, vacated the order under review, and remanded to the FCC.

Scott Angstreich of the law firm of Kellogg Huber represented the U.S. Telecom Association. The USTelecom's Jim Olson stated in a release that "This is a significant victory for all companies that file tariffs at the FCC. The Commission's decision to evade Congressionally-mandated tariff protection by hastily issuing unfounded suspension orders and subsequently reconsidering those decisions put all carriers at risk and subverted the streamlined tariff rules enacted by Congress in 1996. The FCC's approach created substantial uncertainty, which was bad for business, and the Court found that the FCC's actions were so 'arbitrary and capricious' that they violated the spirit and letter of the law. Now that the Court has put an end to the FCC's unlawful practice, carriers can be sure that their federal tariffs will get the legal protections they should receive."

This case is Virgin Islands Telephone Corporation v. FCC and USA, respondents, and AT&T et al., intervenors, U.S. Court of Appeals for the District of Columbia, App. Ct. No. 04-1352, a petition for review of an order of the FCC. Judge Ray Randolph wrote the opinion of the Court, in which Judges Sentelle and Rogers joined.

4/13. The Department of Justice's (DOJ) Antitrust Division filed a complaint in U.S. District Court (DC) against Qualcomm and Flarion Technologies alleging violation of premerger notification and waiting period requirements of Section 7A of the Clayton Act, which is codified at 15 U.S.C. § 18a.

The complaint alleges that "throughout the Section 7A waiting period, Flarion ceded to QUALCOMM control of much of its management and operations, including customer proposals, price discounts, licensing strategies, and personnel decisions."

It adds that "QUALCOMM effectively acquired Flarion's business before the expiration of the Section 7A waiting period through the Merger Agreement's requirements that Flarion obtain QUALCOMM's consent before undertaking numerous competitive activities and through the parties' conduct, by which Flarion did not make even routine business decisions unless and until QUALCOMM consented. By obtaining operational control of Flarion's business, QUALCOMM acquired beneficial ownership of Flarion's assets and thus acquired and held those assets within the meaning of Section 7A prior to the expiration of the Section 7A waiting period."

The DOJ and Qualcomm simultaneously filed a Stipulation and proposed Final Judgment, which provide for a civil fine of $1.8 Million. Neither contains an admission or finding or wrongdoing by Qualcomm. Louis Lupin, SVP and General Counsel of Qualcomm, stated in a release that "we decided to put this matter behind us to avoid diverting or distracting the QUALCOMM-Flarion team from the important tasks of integrating the best of both companies' technologies and refining our joint roadmap".

Thomas Barnett (at right), Assistant Attorney General in charge of the Antitrust Division, stated in a release that "Merging parties must continue to operate independently until the end of the premerger waiting period ... The Antitrust Division will vigorously enforce this requirement against any company that assumes operational control of a business that it is acquiring."

This case is U.S.A. v. Qualcomm, Inc. and Flarion Technologies, Inc., U.S. District Court for the District of Columbia, D.C. No. 1:06CV00672 (PLF), Judge Paul Friedman presiding.

4/10. The Federal Trade Commission (FTC) submitted a comment [12 pages in PDF] to the Florida State Senator Paula Dockery regarding a bill pending in the Florida Senate (S 282) to bring Florida law into compliance with the Supreme Court's 5-4 opinion [73 pages in PDF] in Granholm v. Heald.

On May 16, 2005, the Court ruled that Michigan's and New York's regulatory schemes that permit in-state wineries directly to ship alcohol to consumers, but restrict the ability of out-of-state wineries to do so, violate the dormant commerce clause. See, story titled "Supreme Court Rules in Internet Wine Sales Case" in TLJ Daily E-Mail Alert No. 1,137, May 17, 2005.

The FTC wrote in its Florida comment that permitting internet wine sales benefits consumers. It stated that "Through direct shipping, and particularly through the Internet, consumers can conveniently purchase many wines that are not available in nearby bricks-and-mortar stores. The Internet effectively expands the geographic market by allowing online vendors to compete nationally. Further, an individual online store may feature more products than many bricks-and-mortar retail locations, as bricks-and-mortar retailers may not have the demand or shelf space to justify keeping a large variety of wines in stock. Moreover, smaller wineries may be unable to distribute their wines effectively through the three-tier (i.e., manufacturer/ wholesaler/ retailer) system that is mandated in most states. As the Supreme Court recently noted in its Granholm decision, ``many small wineries do not produce enough wine or have sufficient consumer demand for their wine to make it economical for wholesalers to carry their products. This has led many small wineries to rely on direct shipping to reach new markets.´´" (Parentheses in original. Footnotes omitted.)

The FTC added that even consumers who purchase only at brick and mortar stores benefit from internet wine sales because of the price competition that it creates, and because it facilitates price comparison research by consumers.

The FTC comment concludes that "The Internet lets consumers purchase an unprecedented array of goods and services from the convenience of their homes. Consumers can find thousands of goods, from thousands of suppliers around the country, and have those goods delivered to their doors. State bans on interstate direct shipping represent the single largest regulatory barrier to expanded e-commerce in wine. In states that ban interstate direct shipping, the bans prevent consumers from conveniently and less expensively purchasing wine from suppliers around the country." (Footnote omitted.)

4/13. Former Rep. Brian Bilbray (R-CA) won the special Republican primary election for the 50th District of California. See, election results. There will be a special election in June to fill the seat vacated by former Rep. Duke Cunningham (R-CA). Bilbray previously represented the district now held by Rep. Susan Davis (D-CA). He was elected in the Republican landslide of 1994 in a Democratic leaning district. He lost this seat to Rep. Davis in 2000. The 50th District leans Republican. The Democratic candidate will be Francine Busby. Bilbray was a member of the House Commerce Committee.

4/13. President Bush announced his intent to nominate Daniel Sullivan to be Assistant Secretary of State for Economic and Business Affairs. A White House release states that "Major Sullivan is currently on military leave from the National Security Council where he recently completed service as a Strategic Advisor and Special Assistant to the Commander US Central Command in Tampa, Florida. Prior to being recalled to active duty service, he served as a Director in the International Economics Directorate for the National Security Council and National Economic Council at the White House."

4/13. The Federal Communications Commission (FCC) released its Memorandum Opinion and Order [11 pages in PDF] in its proceeding titled "In the Matter of Petition by Forest Conservation Council, American Bird Conservancy and Friends of the Earth for National Environmental Policy Act Compliance". This addresses whether the construction of communication towers in the Gulf Coast region violates various environmental statutes. The FCC adopted this item on April 11, 2006. This item is FCC 06-44. FCC Commissioner Jonathan Adelstein wrote in a separate statement [PDF] that "I am willing to vote in favor of our ruling today because of the agreement to my request to consider a Notice of Proposed Rulemaking in the larger proceeding addressing the important issue of the potential effects of communication towers on migratory birds." See also, dissenting statement [PDF] by Commissioner Michael Copps.

4/12. The Federal Communications Commission (FCC) adopted, but did not release, a Ninth Report and Order establishing procedures by which new Advanced Wireless Service (AWS) licensees may relocate incumbent Broadband Radio Service (BRS) and Fixed Microwave Service (FS) operations in spectrum that has been allocated for AWS. The FCC issued a short release [PDF] describing this item. See also, separate statement [PDF] of Commissioner Michael Copps and separate statement [PDF] by Commissioner Deborah Tate. This item is FCC 06-45 in ET Docket No. 00-258 and WT Docket No. 02-353.

4/10. Sen. Ted Stevens (R-AK) wrote an opinion piece [PDF], published in CableFAXDaily, titled "State of Decency in DC".

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Copyright 1998 - 2006 David Carney, dba Tech Law Journal. All rights reserved.

Good Friday.

The House will not meet on Monday, April 10, through Friday, April 21. See, Republican Whip Notice and Whip's calendar.

The Senate will not meet on Monday, April 10, through Friday, April 21. See, 2006 Senate calendar.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its notice of proposed rulemaking (NPRM) [52 pages in PDF] regarding the assessment and collection of regulatory fees for fiscal year 2006. This NPRM is FCC 06-38 in MD Docket No. 06-68. See, notice in the Federal Register, April 6, 2006, Vol. 71, No. 66, at Pages 17410-17433.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its notice of proposed rulemaking (NPRM) regarding privacy of consumer phone records. See, notice in the Federal Register, March 15, 2006, Vol. 71, No. 50, at Pages 13317-13323. The FCC adopted this NPRM on February 10, 2006, and released the text [34 pages in PDF] on February 14, 2006. See, story titled "FCC Adopts NPRM Regarding Privacy of Consumer Phone Records" in TLJ Daily E-Mail Alert No. 1,308, February 13, 2006, and story titled "FCC Rulemaking Proceeding on CPNI May Extend to Internet Protocol Services" in TLJ Daily E-Mail alert No. 1,310, February 15, 2006. This NPRM is FCC 06-10 in CC Docket No. 96-115 and RM-11277.

Easter.

12:00 NOON - 1:30 PM. The Federal Communications Bar Association's (FCBA) Diversity Committee will host a brown bag lunch. The topic will be "Impact of Broadband on Telecommunications Relay Service (TRS)". The speakers will be Karen Strauss, Ed Bosson (Texas TRS Administrator), Kelby Brick (National Association of the Deaf), Joe Douglas (NECA), Claude Stout (TDI Executive Director). RSVP to Colin Sandy at 202-682-2496 or csandy at neca dot org. Location: Reed Smith, 1301 K Street, NW, Suite 1100- East Tower 11B.

5:00 PM. Deadline to submit comments to the Library of Congress's (LOC) Section 108 Study Group in response to the LOC's notice in the Federal Register regarding, among other topics, expanding the scope of 17 U.S.C. § 108. See, notice in the Federal Register, February 15, 2006, Vol. 71, No. 31, at Pages 7999-8002.

9:00 AM. The Federal Communications Commission's (FCC) advisory committee named "Independent Panel Reviewing the Impact of Hurricane Katrina on Communications Networks" will meet. See, notice in the Federal Register, April 3, 2006, Vol. 71, No. 63, at Pages 16578-16579. Location: FCC, Commission Meeting Room, Room TW-C305, 445 12th St., SW.

12:30 - 2:00 PM. The DC Bar Association will host a panel discussion titled "Managing and Protecting Digital Data: Part II -- Getting Paid for Content: Legal Questions in Digital Rights Management (DRM) for Online Distribution". The speakers will include Fritz Attaway (Motion Picture Association of America), David Sohn (Center for Democracy & Technology), and Jack Goodman (Wilmer Hale). The price to attend ranges from $10-$30. For more information, call 202-626-3463. See, notice. Location: D.C. Bar Conference Center, 1250 H Street NW, B-1 Level.

6:00 - 8:00 PM. The DC Bar Association's Computer and Telecommunications Law Section will host a reception titled "Meet FCC Commissioner Deborah Taylor Tate". The price to attend ranges from $10-$15. For more information, call 202-626-3463. See, notice. Location: The Westin Embassy Row Hotel, 2100 Massachusetts Ave., NW.

12:00 NOON - 1:30 PM. The DC Bar Association's Intellectual Property Law Section will host a panel discussion titled "Can I Use It?: Fair Use (Part I) -- ``Traditional´´ Notions of Fair Use of Copyrighted Works". The speakers will include Christine Farley (Washington College of Law) and Arnie Lutzker (Lutzker, Lutzker & Settlemeyer). A second event, on June 14, will address fair use in the context of digital works, computer code, and the anti-circumvention provisions of the DMCA. The price to attend ranges from $20-$40. For more information, call 202-626-3463. See, notice. Location: D.C. Bar Conference Center, 1250 H Street NW, B-1 Level.

12:15 - 1:45 PM. The New America Foundation (NAF) will host a program titled "Terror on the Internet: the New Arena, the New Challenges". The speakers will be Gabriel Weimann (Haifa University) and Peter Bergen (NAF). Weimann is the author of "Terror on the Internet: the New Challenges, the New Arena" [Amazon]. See, notice. Location: NAF, 7th Floor, 1630 Connecticut Ave., NW.

3:15 - 5:00 PM. The American Enterprise Institute (AEI) will host a panel discussion titled "Combatting the Diseases of Poverty: Aid Versus Innovation". The speakers will be Barun Mitra (Liberty Institute), Julian Morris (International Policy Network), Roger Bate (AEI), Nicholas Eberstadt (AEI), Maureen Lewis (Center for Global Development), and Vance Serchuk (AEI). See, notice. Location: AEI, 12th Floor, 1150 11th St., NW.

6:00 - 7:30 PM. The Federal Communications Bar Association (FCBA) will host an event titled "What's Next: Mid-Career Planning, Networking, and Marketing Seminar and Reception". The speaker will be Kathleen Sparrough (Davis and Chapman). See, registration form [PDF]. The price to attend ranges from $10 to $40. Registrations and cancellations are due by 5:00 PM on April 14. Location: Hogan & Hartson, 555 13th Street, NW, 13th Floor West.

Day one of a two day meeting of the Department of Labor's (DOL) Bureau of Labor Statistics' (BLS) Business Research Advisory Council (BRAC). The BLS's vaguely worded agenda in its notice in the Federal Register states that the BRAC's Committee on Productivity and Foreign Labor Statistics will meet at 10:00 AM on April 19 to address "new service industries", "international labor comparisons", and "compensation comparisons", including for China and India. See, Federal Register, March 29, 2006, Vol. 71, No. 60, at Pages 15768-15769. Location: Conference Center of the Postal Square Building, 2 Massachusetts Ave., NE.

9:30 AM. The U.S. International Trade Commission (USITC) will hold a hearing on the probable economic effects of the proposed U.S.-Republic of Korea Free Trade Agreement. See, notice in the Federal Register, February 28, 2006, Vol. 71, No. 39, at Pages 10066-10067. The USITC states that if it receives no applications to appear, it will cancel the hearing. For more information, call the USITC at 202 205-2000. Location: USITC, 500 E Street, SW.

10:00 AM. Securities and Exchange Commission's (SEC) Advisory Committee on Smaller Public Companies will hold a public meeting. See, notice in the Federal Register, April 10, 2006, Vol. 71, No. 68, at Page 18122. Location: SEC, Multi-Purpose Room L006, 100 F Street, NE.

12:00 NOON - 1:30 PM. The Federal Communications Bar Association's (FCBA) Young Lawyers Committee and Diversity Committee will host a brown bag lunch. The topic will be "The Role of Mentoring". The speakers will be Parul Desai (Media Access Project), David Don (Comcast), Linda Oliver (Hogan & Hartson), Peter Shields (Wiley Rein & Fielding), and Riley Temple (Halprin Temple). Questions to the panelists may be submitted in advance to Chris Fedeli at 202-828-9874 or cfedeli at crblaw dot com or Cathy Hilke at 202-719-7418 or chilke at wrf dot com. RSVP to Christy Hammond at 202-719-7365 or chammond at wrf dot com. Location: Wiley Rein & Fielding, Conference Center, 1776 K St., NW.

Day one of a two day closed meeting of the Defense Science Board 2006 Summer Study on Information Management for Net-Centric Operations. See, notice in the Federal Register, April 11, 2006, Vol. 71, No. 69, Page 18292. Location: 3601 Wilson Boulevard, 3rd Floor, Arlington, VA.

10:30 AM - 12:00 PM. The American Enterprise Institute (AEI) will host a panel discussion titled "CFIUS Reform: National Security and International Investment". Thomas Donnelly (AEI), Clark Ervin (Aspen Institute), Kristin Forbes (MIT's Sloan School of Management), David Marchick (Covington & Burling), and Phillip Swagel (AWI). See, notice. Press contact: Veronique Rodman at 202-862-4871 or vrodman at aei dot org. Location: 12th floor, 1150 17th St., NW.

12:00 NOON - 2:00 PM. The DC Bar Association will host a panel discussion titled "E-Discovery 2006: New Cases and New Rules". The speakers will include John Facciola (U.S. Magistrate Judge), Jonathan Redgrave (Redgrave Daley Ragan & Wagner), Christopher Jensen (Hudson Legal), Amy Bowser (Mayer Brown Rowe & Maw), Donna Ely (Office of Federal Housing Enterprise Oversight), Douglas Davison (Wilmer Hale). The price to attend ranges from $5-$10. For more information, call 202-626-3463. See, notice. Location: D.C. Bar Conference Center, 1250 H Street NW, B-1 Level.

12:15 PM. The Federal Communications Bar Association (FCBA) will host an event titled "Wireless Luncheon with the 8th Floor Legal Advisors". The price to attend is $15. Registrations and cancellations are due by 5:00 PM on April 18. See, registration form [PDF]. Location: Sidley Austin, 1501 K St., NW.

Deadline to submit to the Office of the U.S. Trade Representative (USTR) written requests to testify at the USTR's May 3 hearing on the proposed free trade agreement (FTA) between the U.S. and Malaysia. The USTR seeks testimony on "electronic commerce issues", "trade-related intellectual property rights issues", "barriers to trade in services", and other topics. See, notice in the Federal Register, March 22, 2006, Vol. 71, No. 55, at Pages 14558-14559.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its notice of proposed rulemaking (NPRM) [52 pages in PDF] regarding the assessment and collection of regulatory fees for fiscal year 2006. This NPRM is FCC 06-38 in MD Docket No. 06-68. See, notice in the Federal Register, April 6, 2006, Vol. 71, No. 66, at Pages 17410-17433.

Day two of a two day closed meeting of the Defense Science Board 2006 Summer Study on Information Management for Net-Centric Operations. See, notice in the Federal Register, April 11, 2006, Vol. 71, No. 69, Page 18292. Location: 3601 Wilson Boulevard, 3rd Floor, Arlington, VA.