6/12. The Supreme Court requested that the Solicitor General file a brief regarding whether or not it should grant the petition for writ of certiorari in Hatch v. Cellco Partnership. See, Order List [9 pages in PDF] at page 2, and Supreme Court docket.

This case concerns the scope of state authority to regulate wireless service providers. This request suggests that the Supreme Court may be considering granting certiorari.

The legislature of the state of Minnesota enacted, and the governor signed, a statute pertaining to "Wireless Consumer Protection".

Cellco Partnership, dba Verizon Wireless, and other wireless service providers, filed a complaint in U.S. District Court (DMinn) against Mike Hatch, in his capacity as Attorney General of Minnesota, seeking declaratory and injunctive relief that the statute is preempted by 47 U.S.C. § 332(c)(3)(A), and that it is unconstitutionally vague.

The District Court denied the wireless companies' request for a permanent injunction.

The wireless companies appealed to the U.S. Court of Appeals (8thCir). It issued its opinion [13 pages in PDF] on December 9, 2005, reversing the judgment of the District Court, and instructing it to grant the wireless companies a permanent injunction.

The Court of Appeals offered this summary of the Minnesota law: "The statute forbids the providers to implement changes in the terms and conditions of subscriber contracts that ``could result´´ in increased rates or an extended contract term, unless they first obtain affirmative written or oral consent from the subscriber."

It "also requires providers to deliver copies of the subscriber contracts to the subscribers, ... and, in the event a subscriber proposes a change to the contract, to disclose clearly any rate increase or contract extension that could result from the change. ... The statute further requires providers to maintain recorded or electronic verification of the ``disclosures´´ required by the law."

Section 332 provides that "no State or local government shall have any authority to regulate the entry of or the rates charged by any commercial mobile service or any private mobile service, except that this paragraph shall not prohibit a State from regulating the other terms and conditions of commercial mobile services."

The Court of Appeals reasoned that the section of the statute that regulates provider initiated changes is not a consumer protection provision that falls within the meaning of "other terms and conditions". Rather, it "effectively regulates rates", and is therefore preempted by Section 332. That is, it "requires providers to maintain rates different from those that would be charged if the providers were left to follow the terms of their existing contracts, which typically allow an adjustment of rates after reasonable notice of fewer than 60 days."

In addition, the Court of Appealst held that the other provisions of the state statute are not separable. Hence, the entirety is preempted.

The state of Minnesota then petitioned the Supreme Court for writ of certiorari.

In addition, a collection of groups filed an amicus brief [28 pages in PDF] urging the Supreme Court to grant certiorari. These groups are the American Association of Retired Persons (AARP), Consumers Union, National Association of Consumer Advocates, National Association of State Utility Consumer Advocates (NASUCA), and National Consumer Law Center.

They wrote that this case "not only affects the 185 million Americans who currently subscribe to some form of wireless service, but every state whose laws conceivably could be affected by the Eighth Circuit’s decision." They argue that the Court of Appeals was incorrect in concluding that the statute regulates rates.

This case is Mike Hatch v. Cellco Partnership, et al., Sup. Ct. No. 05-1159, a petition for writ of certiorari to the U.S. Court of Appeals for the 8th Circuit, App. Ct. No. 04-3198.

Cellco Partnership is represented by Helgi Walker, an attorney in the Washington DC office of the law firm of Wiley Rein & Fielding. She was previously Associate Counsel to the President, early in the administration of President Bush. Before that, she was a legal advisor to former FCC Commissioner Harold Furchtgott-Roth. The AARP and others are represented by Stacy Canan of the AARP Foundation.

6/12. The Supreme Court denied rehearing in M2 Software, Inc. v. Madacy Entertainment, Sup. Ct. No. 05-967. See, Order List [9 pages in PDF] at page 9, and docket.

6/12. The Supreme Court denied certiorari Wayne Harter v. Commissioner for Patents, Sup. Ct. No. 05-1338 See, Order List [9 pages in PDF] at page 4, and docket.

6/12. The U.S. Court of Appeals (9thCir) issued its opinion [18 pages in PDF] in Marder v. Lopez, Sony, and Paramount, a copyright case arising out of the release of a music video, featuring Jennifer Lopez, that may have included scenes based upon the 1983 movie titled "Flashdance". The Court of Appeals affirmed the judgment of the District Court, which dismissed Marder's complaint.

In 1982 Maureen Marder, a dancer, assisted the author of the screenplay for Flashdance. She was paid, and signed a general release that released Paramount from all claims arising out of the making of the movie. In 2003, Sony made and released a music video for the song titled "I'm Glad", performed by Lopez.

Marder then filed a complaint in U.S. District Court (CDCal) against Lopez, Sony and Paramount, seeking a declaration that she is a co-author of Flashdance, and a co-owner of the copyright. She also sought to recover part of the revenues from the sale of the video. The District Court dismissed her complaint for failure to state a claim.

The Court of Appeals affirmed. It held that the 1982 release "constituted a waiver of all claims against Paramount arising out of her contributions to the film Flashdance. Her current claims against Paramount are barred by the Release. Marder’s suit against Sony and Lopez was properly dismissed because she cannot bring an infringement action if she cannot assert a valid copyright interest in Flashdance and she has no existing evidence of copyright ownership."

This case is Maureen Marder v. Jennifer Lopez, Sony Music Entertainment, Inc., and Paramount Pictures Corporation, U.S. Court of Appeals for the 9th Circuit, App. Ct. No. 04-55615, an appeal from the U.S. District Court for the Central District of California, D.C. No. CV-03-08226-TJH.

6/12. The U.S. Court of Appeals (8thCir) issued its opinion [6 pages in PDF] in Star Tribune v. Minnesota Newspaper Guild Typographical Union, affirming the judgment of the District Court, which held that the Star Tribune, which publishes a daily newspaper in Minneapolis, Minnesota, violated its collective bargaining agreement (CBA) with an employees' union that regulates work done in the newspaper's news and editorial departments.

The CBA permits the Star Tribune to contract with freelance writers who are "experts or specialists". The Star Tribune contracted with a broadcast meteorologist to write a daily column. When the Star Tribune began publishing these columns in the news section, rather than the weather section, the union filed a grievance. The arbitrator held that the CBA prohibits the Star Tribune from publishing the works of freelance experts in the news section, notwithstanding that absence of any language to that effect in the CBA.

The District Court then affirmed the arbitration award.

The Court of Appeals affirmed the District Court. The Star Tribune Company v. Minnesota Newspaper Guild Typographical Union, U.S. Court of Appeals for the 8th Circuit, App. Ct. No. 05-3955, an appeal from the U.S. District Court for the District of Minnesota.

Last week, the Supreme Court denied certiorari in Tokyo Kikai Seisakusho, Ltd. v. Goss International Corp., a case involving trade protectionism in the U.S. in the market for printing presses. The Supreme Court let stand the January 23, 2006, opinion [32 pages in PDF] of the 8th Circuit holding that a foreign company that sold large printing presses to newspaper publishers in the U.S. at lower prices than U.S. manufacturers violated U.S. law. See, story titled "Supreme Court Denies Cert in Trade Protectionism Case" in TLJ Daily E-Mail Alert No. 1,385, June 6, 2006.

Meanwhile, groups such as the Newspaper Association of America (NAA), report that the total number of daily newspapers, and total circulation, continue their long decline.

6/7. Sen. Arlen Specter (R-PA) sent a letter to Vice President Dick Cheney regarding the Senate Judiciary Committee's investigation into the National Security Agency's (NSA) interception of communications, including the possibility that it will subpoena executives at telecommunications companies.

He wrote that "When there were public disclosures about the telephone companies turning over millions of customer records involving allegedly billions of telephone calls, the Judiciary Committee scheduled a hearing of the chief executive officers of the four telephone companies involved. When some of the companies requested subpoenas so they would not be volunteers, we responded that we would honor that request. Later, the companies indicated that if the hearing were closed to the public, they would not need subpoenas."

He continued that "I then sought Committee approval, which is necessary under our rules, to have a closed session to protect the confidentiality of any classified information and scheduled a Judiciary Committee Executive Session for 2:30 P.M. yesterday to get that approval."

"I was advised yesterday that you had called Republican members of the Judiciary Committee lobbying them to oppose any Judiciary Committee hearing, even a closed one, with the telephone companies. I was further advised that you told those Republican members that the telephone companies had been instructed not to provide any information to the Committee as they were prohibited from disclosing classified information."

He also wrote that "If an accommodation cannot be reached with the Administration, the Judiciary Committee will consider confronting the issue with subpoenas and enforcement of that compulsory process if it appears that a majority vote will be forthcoming. The Committee would obviously have a much easier time making our case for enforcement of subpoenas against the telephone companies which do not have the plea of executive privilege."

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

The House will meet at 9:30 AM for morning hour, and at 11:00 AM for legislative business. The House will consider three non-technology related items under suspension of the rules. It will also consider HR  5576, the "Transportation, Treasury, Housing and Urban Development, the Judiciary, the District of Columbia, and Independent Agencies Appropriations Act for Fiscal Year 2007", subject to a rule. See, Republican Whip Notice.

The Senate will meet at 9:45 AM. It will resume consideration of S 2766, the defense authorization bill.

8:45 AM - 5:00 PM. Day one of a two day meeting of the National Institute of Standards and Technology's (NIST) Visiting Committee on Advanced Technology. See, notice in the Federal Register: May 24, 2006, Vol. 71, No. 100, at Page 29919. Location: Employees Lounge, Administration Building, NIST, Gaithersburg, MD.

10:00 AM. The Senate Commerce Committee (SCC) will hold the third of three hearings on S 2686, the "Communications, Consumer's Choice, and Broadband Deployment Act of 2006". The first panel of witnesses will be Richard Green (National Guard Association of the United States), John Rutledge (Rutledge Capital), Ben Scott (Free Press), Dave McCurdy (Electronic Industries Alliance), Robert LeGrande (District of Columbia Government), Dan Glickman (Motion Picture Association of America), and John Rose (OPASTCO). The second panel will be Kenneth Fellman (Mayor of Arvada, Colorado), Kyle McSlarrow (National Cable & Telecommunications Association), Walter McCormick (US Telecom), Christopher Putala (EarthLink), Steve Largent (CTIA), Philip Jones (Washington Utilities and Transportation Commission and NARUC), and Robert Foosaner (Sprint Nextel). See, notice. Press contact: Aaron Saunders (Stevens) at 202-224-3991 or Andy Davis (Inouye) at 202-224-4546. The hearing will be webcast by the SCC. Location: Room 106, Dirksen Building.

10:30 - 11:30 AM. Vint Cerf (Google), Whitfield Diffie (Chief Security Officer of Sun Microsystems), and Susan Landau (Sun Microsystems) will hold a telephonic news conference to discuss how imposing CALEA mandates on VOIP services will harm security and innovation. The call in number is 1-800-309-5940. The conference ID number is 1398835. For more information, contact Bob Cohen (Information Technology Association of America) at 703-284-5301 or bcohen at itaa dot org.

3:00 PM. The House Judiciary Committee's (HJC) Subcommittee on Commercial and Administrative Law will hold a hearing titled "State Taxation of Interstate Telecommunications Services". The witnesses will be Scott Mackey (Kimbell Sherman Ellis), David Quam (National Governors' Association), Stephen Kranz (Council On State Taxation), and Steven Rauchenberger (Illinois State Senate and National Conference of State Legislatures). See, notice. Press contact: Jeff Lungren or Terry Shawn at 202-225-2492. Location: Room 2141, Rayburn Building.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its notice of proposed rulemaking (NPRM) regarding mandatory thousands-block number pooling. See, notice in the Federal Register, March 15, 2006, Vol. 71, No. 50, at Pages 13323-13328. This NPRM is FCC 06-14 in CC Docket No. 99-200.

5:00 PM. Deadline to submit comments to the National Institute of Standards and Technology (NIST) regarding its Draft Special Publication 800-96 [169 pages in PDF] titled "PIV Card / Reader Interoperability Guidelines". PIV is an acronym for Personal Identity Verification.

The House will meet at 10:00 AM legislative business. See, Republican Whip Notice.

9:00 - 11:00 AM. Day two of a two day meeting of the National Institute of Standards and Technology's (NIST) Visiting Committee on Advanced Technology. See, notice in the Federal Register: May 24, 2006, Vol. 71, No. 100, at Page 29919. Location: Employees Lounge, Administration Building, NIST, Gaithersburg, MD.

9:00 - 11:30 AM. The Internal Revenue Service's (IRS) Electronic Tax Administration Advisory Committee (ETAAC) will meet. See, notice in the Federal Register, May 30, 2006, Vol. 71, No. 103, at Pages 30717-30718. Location: Embassy Suites Hotel, Capital A Meeting Room, 900 10th Street, NW.

9:30 AM. The Senate Judiciary Committee (SJC) may hold a hearing titled "Reconsidering Our Communications Laws: Ensuring Competition and Innovation". See, notice. The SJC frequently cancels or postpones hearings without notice. Press contact: Courtney Boone at 202-224-5225. Location: Room 226, Dirksen Building.

10:00 AM. The House Homeland Security Committee will meet to mark up several bill, including HR 4941, the "Homeland Security Science and Technology Enhancement Act of 2006", which adds a new section to the Homeland Security Act of 2002 titled "Cybersecurity Research and Development". Location: Room 311, Cannon Building.

10:00 AM - 12:00 NOON. The Department of State's (DOS) International Telecommunication Advisory Committee (ITAC) will meet to prepare for the ITU Plenipotentiary Conference 2006 on November 6-24, 2006, in Ankara, Turkey. See, notice in the Federal Register, March 29, 2006, Vol. 71, No. 60, at Page 15798. Location: __.

10:30 AM - 12:30 PM. The New America Foundation (NAF) will host a panel discussion titled "Sharpening Our Competitive Edge Through Investment in Advanced Technology Tools for Learning". The speakers will include Henry Kelly (Federation of American Scientists), Lawrence Grossman (Digital Promise), Michael Calabrese (NAF), Marland Buckner (Microsoft), Walter Cheek (BreakAway Games), and Dexter Fletcher (Institute for Defense Analyses). See, notice. Location: Room HC-5, Capitol Building.

12:00 NOON - 1:30 PM. The DC Bar Association's Intellectual Property Law Section will host a panel discussion titled "Fair Use (Part II) -- Fair Use of Copyrighted Works in the Digital Environment". The speakers will include Jonathan Band and Robert Kasunic (Principal Legal Advisor, Copyright Office). 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 PM. The Federal Communications Bar Association's (FCBA) Cable Practice Committee will host a brown bag lunch. The topic will be "Views from the Hill". The scheduled speakers are James Assey (Minority Senior Counsel for Communications, Senate Commerce Committee), Will Nordwind (Counsel and Policy Coordinator, House Subcommittee on Telecommunications and the Internet), Johanna Shelton (Minority Counsel, House Commerce Committee), Lisa Sutherland (Majority Staff Director for Sen. Ted Stevens). RSVP to Frank Buono at fbuono at willkie dot com. Location: Willkie Farr & Gallagher, 1875 K Street, NW.

RESCHEDULED FROM JUNE 7. 2:00 PM. The House Commerce Committee's (HCC) Subcommittee on Commerce, Trade, and Consumer Protection will hold a hearing titled "Violent and Explicit Video Games: Informing Parents and Protecting Children". See, notice. The hearing will be webcast by the HCC. Location: Room 2322, Rayburn Building.

2:00 PM. The Senate Judiciary Committee (SJC) may hold a hearing titled "Judicial Nominations". See, notice. The SJC frequently cancels or postpones hearings without notice. Press contact: Courtney Boone at 202-224-5225. Location: Room 226, Dirksen Building.

7:00 - 9:00 PM. The Federal Communications Bar Association (FCBA) will host a reception. See, registration form [PDF]. Prices vary. Location: Corcoran Art Gallery, 500 17th Street, NW.

The House will meet at 10:00 AM legislative business. See, Republican Whip Notice.

8:00 AM - 5:00 PM. Day one of a two day meeting to the National Science Foundation's (NSF) Advisory Committee for Cyberinfrastructure. See, notice in the Federal Register, May 22, 2006, Vol. 71, No. 98, at Page 29356. Location: NSF, 4201 Wilson Blvd., Room 1235, Arlington, VA.

8:30 AM - 4:00 PM. The Department of Homeland Security's (DHS) Privacy Office will host a public workshop titled "Operationalizing Privacy: Compliance Frameworks & Privacy Impact Assessments", to explore policy, legal, and operational frameworks for Privacy Impact Assessments (PIAs) and Privacy Threshold Analyses (PTAs). See, notice in the Federal Register: May 24, 2006, Vol. 71, No. 100, at Page 29968. Location: GSA Regional Headquarters, Auditorium, 7th & D Streets, SW.

9:00 AM. The House Judiciary Committee's (HJC) Subcommittee on Courts, the Internet, and Intellectual Property will hold a hearing titled "Patent Trolls: Fact or Fiction". The witnesses will be Ed Reines (Weil Gotshal & Manges), Dean Kamen (DEKA Research & Development Corporation), Paul Misener (Amazon.com), and Chuck Fish (Time Warner). See, notice. Press contact: Jeff Lungren (HJC) or Terry Shawn (HJC) at 202-225-2492, or Beth Frigola (Rep. Smith) at 202-225-4236. Location: Room 2141, Rayburn Building.

9:30 AM. The Senate Judiciary Committee (SJC) may hold an executive business meeting. See, notice. The SJC frequently cancels or postpones meetings without notice. Location: Room 226, Dirksen Building.

POSTPONED TO JUNE 21. 9:30 AM. The Federal Communications Commission (FCC) will hold a meeting. The event will be webcast by the FCC. Location: FCC, 445 12th Street, SW, Room TW-C05 (Commission Meeting Room).

6:30 PM. The America's Future Foundation (AFF) will host a reception (6:30 PM) and panel discussion (7:00 PM) titled "Network Neutrality: Should Government Regulate the Internet?". The speakers will be James Gattuso (Heritage Foundation), Patrick Ross (Progress & Freedom Foundation), Alex Curtis (Public Knowledge), Frannie Wellings (Free Press), and Jerry Brito (Mercatus Center). See, notice. Location: Room B-338, Rayburn Building, Capitol Hill.

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

Deadline for the Federal Communications Commission's (FCC) entity titled "Independent Panel Reviewing the Impact of Hurricane Katrina on Communications Networks" to submit its report to the FCC.

8:00 AM - 2:00 PM. Day two of a two day meeting to the National Science Foundation's (NSF) Advisory Committee for Cyberinfrastructure. See, notice in the Federal Register, May 22, 2006, Vol. 71, No. 98, at Page 29356. Location: NSF, 4201 Wilson Blvd., Room 1235, Arlington, VA.

9:30 AM - 5:30 PM. The Antitrust Modernization Commission (AMC) will meet. See, notice in the Federal Register, June 1, 2006, Vol. 71, No. 105, at Pages 31152-31153. Location: Federal Trade Commission (FTC), Conference Center, 601 New Jersey Ave., NW.

Deadline to submit comments to the National Institute of Standards and Technology (NIST) regarding its Draft Special Publication 800-80 [49 pages in PDF], titled "Guide for Developing Performance Metrics for Information Security".

10:00 AM. The Senate Commerce Committee's (SCC) Subcommittee on Technology, Innovation, and Competitiveness will hold a hearing titled "High-Performance Computing". Sen. John Ensign (R-NV) will preside. Location: Room 562, Dirksen Building.

12:15 - 1:45 PM. The Federal Communications Bar Association's (FCBA) Young Lawyers Committee will host a brown bag lunch titled "Copyright Overview and Hot Topics for Communications Lawyers". For more information, contact Tarah Grant at tsgrant at hhlaw dot com or 703-610-6155 or Brendan Carr at bcarr at wrf dot com or 202-719-7305. RSVP to Brendan Carr. Location: Wiley Rein & Fielding, 1776 K Street, NW.

6:00 PM. The filing window closes for the Federal Communications Commission's (FCC) Auction 66. This is the auction of Advance Wireless Services (AWS) licenses in the 1710-1755 MHz and 2110-2155 MHz (AWS-1) bands. See also, notice in the Federal Register, June 2, 2006, Vol. 71, No. 106, at Pages 32089-32091.

POSTPONED TO JUNE 22. 10:00 AM. The Senate Commerce Committee (SCC) will meet to mark up S 2686, the "Communications, Consumer's Choice, and Broadband Deployment Act of 2006". See, notice. Press contact: Aaron Saunders (Stevens) at 202-224-3991 or Andy Davis (Inouye) at 202-224-4546. The meeting will be webcast by the SCC. Location: __.

10:00 AM. The House Commerce Committee's (HCC) Subcommittee on Oversight and Investigations will hold a hearing titled "Internet Data Brokers and Pretexting: Who has Access to Your Private Records?". See, notice. The hearing will be webcast by the HCC. Location: Room 2322, Rayburn Building.

12:30 - 2:00 PM. The U.S. Chamber of Commerce will host an event titled "Intellectual Property Forum Featuring Attorney General Alberto Gonzalez". See, notice and registration page. Location: Chamber, 1615 H Street, NW.

2:00 PM. The House Commerce Committee's (HCC) Subcommittee on Commerce, Trade, and Consumer Protection will hold a hearing titled "Privacy in the Commercial World II". See, notice. The hearing will be webcast by the HCC. Location: Room 2123, Rayburn Building.

2:00 - 4:00 PM. The Department of Justice's (DOJ) Antitrust Division and the Federal Trade Commission (FTC) will hold the first of three hearings on single firm conduct. The speakers will be Deborah Majoras (FTC Chairman), Thomas Barnett (Assistant Attorney General in charge of the Antitrust Division), Dennis Carlton (University of Chicago Graduate School of Business), and Herbert Hovenkamp (University of Iowa College of Law). See, notice. Location: FTC, Room 432, 600 Pennsylvania Ave., NW.

6:00 - 8:15 PM. The Federal Communications Bar Association's (FCBA) Judicial Practice Committee will host a continuing legal education (CLE) seminar titled "The Judicial Year in Review". See, registration form [PDF]. Prices vary. The deadline to register is 5:00 PM on June 16. Location: Wiley Rein & Fielding, 1776 K Stree, NW.

Deadline to submit reply comments to the Federal Communications Commission (FCC) regarding the transfer of licenses associated with the AT&T, BellSouth, and Cingular transaction. This is nominally a license transfer proceeding, but is also in the nature of an antitrust merger review. This proceeding will be governed by "permit but disclose" ex parte communications procedures under Section 1.1206 of the FCC's rules. See, FCC notice [10 pages in PDF] and FCC web page for its AT&T/SBC/Cingular merger review. This proceeding is WC Docket No. 06-74.