|Supreme Court Denies Certiorari in TCPA
10/10. The Supreme Court denied
certiorari in FreeEats.com, Inc. v. North Dakota, No. 06-127. See,
List [18 pages in PDF], at page 3.
This is a case regarding whether the federal Telephone Consumer Protection
Act of 1991 (TCPA) preempts a North Dakota telephone solicitation statute that
bars making precorded phone calls for political polling purposes.
The Supreme Court passed up an opportunity to bring some clarity to the
meaning and scope of the limited preemption language in the TCPA.
The Supreme Court's denial of certiorari lets stand the judgment of the
Supreme Court of North Dakota
upholding the state statute in State ex rel. Stenehjem v. FreeEats.com, Inc. Its
is also reported at 712 N.W.2d 828 (2006).
FreeEats.com wrote in its
petition [PDF] that
"Telephones are an important instrument in political campaigns. Petitioner
FreeEats.com is a survey and database company that relies upon interactive-voice
response and speech-recognition technology on outbound calls using prerecorded
messages to query households through survey polls, identify supporters, and
later encourage those supporters to turn out to vote. The company has used this
technology in many political campaigns and initiatives, including campaigns in
the State of North Dakota in the 2004 elections." See also, petitioner's
reply brief [PDF].
See also, Supreme Court
is represented before the Supreme Court by
Jacobs of the Venable law firm.
And see, August 2006
article by Amy Worlton
of the law firm of Wiley Rein & Fielding (WRF) on litigation under the TCPA preemption
clause. (WRF prepared an amicus brief in the case for the U.S. Chamber of Commerce.)
|Supreme Court Denies Certiorari in At
Home v. Cox and Comcast
10/10. The Supreme Court denied certiorari
in At Home Corporation v. Cox Communications and Comcast, No.06-147. See,
[18 pages in PDF], at page 3.
This case pertains to application of Section 16(b) of the Securities Exchange
Act of 1934, which is codified at
U.S.C. § 78p(b), in an action to recover
alleged short-swing profits obtained by insiders of At Home.
This lets stand the judgment of the U.S. Court
of Appeals (2ndCir), which affirmed the judgment of the
U.S. District Court (SDNY), which
dismissed the Section 16(b) claim. See, April 28, 2006,
opinion [18 pages
in PDF] of the Court of Appeals. The Court of Appeals case is App. Ct. No. 05-0115-cv. The
opinion of the District Court is reported at 340 F. Supp. 2d 404 (SDNY 2004).
At Home is represented by Joseph Allerhand of the New York, New York office of the law
firm of Weil Gotshal & Manges. Cox is represented
by Michael Hays of the Washington DC office of the law firm of
Dow Lohnes. Comcast is represented by Michael Shuster
of the New York, New York law firm of Kasowitz Benson
Torres & Friedman. See also, Supreme Court
And see, amicus
brief [38 pages in PDF] of the Securities and Exchange
Commission (SEC) filed with the Court of Appeals.
|5th Circuit Rules in SBC Texas v. PUC
10/4. The U.S. Court of Appeals (5thCir)
opinion [PDF] in Southwestern Bell v. PUC of Texas, affirming the District
Court's judgment in favor of the PUC and AT&T. This is an interconnection case.
This opinion lacks the specificity and clarity usually found in
other Court of Appeals opinions on this subject.
Southwestern Bell Telephone, dba SBC Texas, is an incumbent local exchange carrier (ILEC).
47 U.S.C. § 251 requires it to interconnect with competitive local exchange
carriers (CLECs). The Public Utility
Commission of Texas (PUCT) is the state commission for the purposes of
arbitration and approval of interconnection agreements under
47 U.S.C. § 252, and the application to enter the long distance market under
47 U.S.C. § 271.
Following passage of the Telecommunications Act of 1996, SBC Texas applied to
Federal Communications Commission (FCC), pursuant to
Section 271, for permission to provide in region interLATA service in the state of Texas
(that is, to enter the long distance market). The FCC issued an order in 2000 allowing SBC
Texas to do so. (See, FCC 00-238 in CC Docket No. 00-65.)
But first, the PUCT, SBC Texas, and others negotiated an agreement titled the
"Texas 271 Agreement", which the Court of Appeals opinion sometimes refers to
as the "T2A".
The Court of Appeals wrote that "The T2A represents a collaborative effort between
many interested parties to develop a model interconnection agreement. The PUCT’s approval
of the T2A symbolized a milestone in SBC Texas’s pursuit to gain the PUCT’s
recommendation for FCC approval under section 271 of the Act. The T2A provides a
contractual blueprint available to any CLEC operating in Texas and ensures
nondiscriminatory access to SBC Texas’s network. More specifically, the Plan’s
provisions demonstrated to both the PUCT and FCC that SBC Texas satisfied and
would continue to satisfy the section 271 competitive checklist."
SBC Texas entered into interconnection agreements with CLECs in Texas based upon
this T2A agreement.
In 2002, the PUCT issued the order at issue in this case (PUCT Order No. 45).
It pertains to Section 271 compliance monitoring of SBC Texas.
SBC Texas filed a complaint in U.S. District
Court (WDTex) against the PUCT alleging that the PUCT violated 47 U.S.C. §§ 251
& 252 by ordering SBC Texas to alter certain terms and conditions of the Performance
Remedy Plan, contained in the interconnection agreements between SBC Texas and CLECs.
It argued that the T2A prohibits unilateral changes.
The District Court granted summary judgment to the PUCT. SBC Texas brought
the present appeal. The Court of Appeals affirmed.
The Court of Appeals wrote that "The issue on appeal is whether the PUCT acted
arbitrarily and capriciously in issuing Order No. 45, which modified the Performance
Remedy Plan of the Texas 271 Agreement, without the consent of SBC Texas. SBC Texas
contends that the PUCT violated federal law and breached a binding contract by altering
the terms and conditions of the State's model interconnection agreement."
The T2A provided that "Any changes to existing performance measures and this
remedy plan shall be by mutual agreement of the parties and, if necessary, with respect
to new measures and their appropriate classification, by arbitration."
The Court of Appeals concluded that Order No. 45 "modified" the
T2A. But, it also concluded that Order No. 45 "creates neither new nor different
contractual terms". And, it concluded that "the PUCT can make refinements to the
T2A as the occasion arises so long as the changes do not contravene the Act."
And finally, the Court of Appeals concluded that "the PUCT did
not act impermissibly arbitrary and capricious."
This case is Southwestern Bell Telephone, L.P. v. Public Utility Commission of
Texas, et al., App. Ct. No. 05-50131, an appeal from the U.S. District Court for the
Western District of Texas, San Antonio Division. Judge Stewart wrote the opinion of the
Court of Appeals, in which Judges King and Dennis joined.
10/10. The Supreme Court denied
certiorari in Apotex v. Pfizer, No 05-1006. See,
List [18 pages in PDF], at page 12. This lets stand the judgment of the
U.S. Court of Appeals (FedCir). See,
Supreme Court docket.
The Order List adds that "The Chief Justice took no part in the consideration or
decision of this petition.
8/29. Two U.S. Courts of Appeals issued opinions just before the Labor Day weekend
regarding the Federal Communications Commission's (FCC)
former pick and choose interpretation of
47 U.S.C. § 252(i), and its current all or nothing interpretation. On August
29, 2006, the U.S. Court of Appeals
(9thCir) issued its
opinion [19 pages in PDF] in New Edge Network v. FCC, denying petitions
for review of the all or nothing rule. This case is New Edge Network, Inc., et al. v.
FCC, and consolidated actions, U.S. Court of Appeals for the 9th Circuit, App. Ct. Nos.
04-73800, 04-74401, 04-74408, 04-74410, 04-74720, 04-74724, 04-75445, and 04-76136,
petitions for review of a final order of the FCC. Judge Thomas Nelson wrote the opinion
of the Court of Appeals, in which Judge Pam Rymer and William Fletcher joined. On August
28, 2006, the U.S. Court of Appeals (6thCir)
issued its opinion
[14 pages in PDF] in BellSouth v. Southeast Telephone, a case regarding
retroactive application of the all or nothing rule by state public utility commissions.
This case is BellSouth Telecommunications, Inc. v. Southeast Telephone, Inc. and Public
Service Commission of Kentucky, U.S. Court of Appeals for the 6th Circuit, App. Ct.
No. 05-6657, an appeal from the U.S. District Court for the Eastern District of Kentucky,
at Frankfort, D.C. No. 04-00084, Judge Joseph Hood presiding. Judge Ronald Gilman wrote
the opinion of the Court of Appeals, in which Judges Sutton and Denise Hood joined.
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Copyright 1998 - 2006 David Carney, dba Tech Law Journal. All
|Washington Tech Calendar
New items are highlighted in red.
|Tuesday, October 10
The House will not meet. It may return from it elections recess on
Monday, November 13, 2006. The adjournment resolution,
provides for returning on Thursday, November 9, at 2:00 PM.
The Senate will not meet. See,
10:00 AM. The Supreme
Court will hear oral argument in Global Crossing v. Metrophones, Sup.
Ct. No. 05-705, a case regarding whether 47 U.S.C. § 201(b) creates a private right of
action for a provider of payphone services to sue a long distance carrier for alleged
violations of the FCC's regulations concerning compensation for coinless payphone
Stuart Levey, the Department of
the Treasury's Under Secretary for Terrorism and Financial Intelligence, will give
a luncheon speech at the 2006 ABA/ABA Money Laundering Enforcement Conference.
Location: Marriott Wardman Park Hotel, 2660 Woodley Road, NW.
12:15 - 2:00 PM. The
Federal Communications Bar Association's (FCBA) Mass Media Practice
Committee will host a brown bag lunch. The topic will be the "Digital
Television Transition". The speaker will be Meredith Baker, Senior Advisor
at the National Telecommunications and
Information Administration (NTIA). For more information contact Erin
Dozier at edozier at sheppardmullin dot com or
202-772-5312. Location: Fleischman and Walsh, Suite 600, 1919
Pennsylvania Ave., NW.
1:30 - 4:30 PM. The Department of
Homeland Security's (DHS)
Infrastructure Advisory Council (NIAC) will hold a meeting. The agenda includes an
item titled "Convergence of Physical and Cyber Technologies and Related Security
Management Challenges". The speakers will include John Chambers (P/CEO of Cisco
Systems), George Conrades (Executive Chairman of Akamai Technologies), and Gregory Peters
(former P/CEO of Internap Network Services). The NIAC also accepts written public comments.
notice in the Federal Register, September 27, 2006, Vol. 71, No. 187, at
Pages 56541-56542. Location: National Press Club, 529 14th Street, NW.
Deadline to submit reply comments to the
Federal Communications Commission (FCC) in response to
of Proposed Rulemaking [22 pages in PDF] in a new proceeding titled "In the Matter
of Amendment of Section 90.20(e)(6) of the Commission's Rules". This is a reaction to
Lojack's petition for rulemaking relating to the use
of spectrum for stolen vehicle recovery systems (SVRS). The FCC proposes to revise
section 90.20(e)(6) of its rules "to permit increased mobile output power, to permit
digital emissions in addition to the analog emissions currently authorized by the Rules,
and to relax the limitations on duty cycles", among other things. The FCC adopted
this item on July 19, 2006, and released it on July 24, 2006. It is FCC 06-107, in WT
Docket No. 06-142. See,
notice in the Federal Register, August 23, 2006, Vol. 71, No. 163, at
Deadline to submit initial comments to the
Federal Communications Commission's (FCC)
Federal-State Joint Board on Universal Service in response to the FCC's
notice [PDF] requesting comments regarding the use of reverse auctions to determine
high cost universal service funding to eligible telecommunications carriers.
This proceeding is WC Docket No. 05-337 and CC Docket No. 96-45. See,
notice in the Federal Register, August 25, 2006, Vol. 71, No. 165, at
|Wednesday, October 11
6:00 - 8:00 PM. The
Federal Communications Bar Association (FCBA) will host a continuing legal education
(CLE) seminar titled "FCC's Media Ownership Rules". Registrations and
cancellations are due by 5:00 PM on October 9. The price to attend ranges from $50 to
registration form [PDF]. Location: Dow Lohnes,
Suite 800, 1200 New Hampshire Ave., NW.
|Thursday, October 12
9:00 AM. The Department of Commerce's (DOC)
Bureau of Industry and Security's (BIS)
Deemed Export Advisory Committee (DEAC) will meet. See,
notice in the Federal Register, September 22, 2006, Vol. 71, No. 184, at
Pages 55429. Location: main lobby of the DOC's Hoover Building,
14th Street between Constitution and Pennsylvania Avenues, NW.
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).
9:30 AM. The U.S. Court
of Appeals (DCCir) will hear oral argument in BellSouth Telecommunications v.
FCC, App. Ct. No. 05-1032. The case pertains to whether BellSouth discriminated
in favor of its long distance subsidiary in violation of
47 U.S.C. § 272. However, the precise nature of either the facts or issues in this
proceeding is not public information. See for example, heavily redacted
[81 pages in PDF] of the Federal Communications
Commission (FCC). Judges Tatel, Kavanaugh and Williams will preside. Location:
Courtroom 20, 333 Constitution Ave., NW.
12:30 - 1:45 PM. The
Federal Communications Bar Association's (FCBA) Transactional Practice Committee
will host a brown bag lunch. The FCBA states that the topic will be the "forms of
financing available to communications companies -- angel, VC, mezzanine, private equity,
traditional loans, public offerings". The speakers will include Tara Giunta (Paul
Hastings Janofsky & Walker) and Rebecca Arbogast (Stifel Nicolaus). RSVP to Christine
Crowe at ccrowe at wbklaw dot com or 202-383-3334. Location: Paul Hastings, 875 15th
2:00 - 3:00 PM. The
President's National Security
Telecommunications Advisory Committee (NSTAC) will hold a partially closed meeting by
teleconference. The open portion of the meeting will pertain to the Emergency Communications
and Interoperability Task Force (ECITF). The closed portion of the meeting will include a
discussion of, and vote on, the Global Infrastructure Resiliency (GIR) Report. See,
notice in the Federal Register, October 2, 2006, Vol. 71, No. 190, at Page 57991.
2:00 - 5:30 PM. The
U.S. Chamber of Commerce will host an event
titled "The Global Fight Against Counterfeiting and Piracy: A Forum on
International Enforcement". The speakers will include Chris Israel
(International IPR Enforcement Coordinator at the U.S. Department of Commerce), Jorge
Amigo (Director, Intellectual Property Office, Mexico), Benoit Battistelli (Director,
Intellectual Property Office, France), Doug George (Director, Intellectual Property
Information and Trade Policy Division, Foreign Affairs and International Canada), Ken
Hansen (Director, Federal Enforcement Branch, Royal Canadian Mounted Police), and Brian
Isaac (Canadian Anti-Counterfeiting Network). The notice of the event states that
"Credentialed Members of the Media are Invited to Attend. For more
information, or to register, reporters may ... call 202-463-5682." Location:
U.S. Chamber of Commerce, 1615 H St., NW.
6:30 - 8:30 PM. The
Federal Communications Bar Association's (FCBA) Legislative Practice Committee and
Young Lawyers Committee will host an event title "Happy Hour". For more
information, contact Paula Timmons at paula at paulatimmonsconsulting dot com or
202-255-1627 or Chris Fedeli at cfedeli at crblaw dot com or 202-828-9874. Location:
Lounge 201, 201 Massachusetts Ave., NE.
Day one of a two day conference titled "Standards
Bodies and Patent Pools: Key Legal and Business Developments". FTC
Commissioner Pamela Harbour will give a speech titled "Standards Bodies and
Patent Pools: Key Legal and Business Developments" on October 12. See,
agenda. Location: Wyndham Washington DC Hotel, 1400 M St., NW.
|Friday, October 13
9:00 - 11:00 AM. The
Progress & Freedom Foundation's (PFF)
Digital Age Communications Act Project (DACA)
will release a report containing recommendations of its Institutional Reform Working
Group. The speakers will include Randolph May
(Free State Foundation) and
John Duffy (George
Washington University School of Law). See,
page. See also,
titled "PFF Announces Digital Age Communications Act Project" in
TLJ Daily E-Mail Alert No.
1,068, February 2, 2005. Breakfast will be served. Location: First Amendment Lounge,
National Press Club, 529 14th St. NW, 13th
12:15 - 1:45 PM. The
Federal Communications Bar Association's (FCBA) HLS/Emergency Communications Committee
will host a brown bag lunch to plan future events. For more information contact Jennifer
Manner at 703-390-2730 or jmanner at msvlp dot com. Location: Pillsbury Winthrop Shaw
Pittman, 2400 N St., NW.
Day two of a two day conference titled "Standards
Bodies and Patent Pools: Key Legal and Business Developments". See,
agenda. Location: Wyndham Washington DC Hotel, 1400 M St., NW.
|Monday, October 16
6:00 - 8:15 PM. The
Federal Communications Bar Association (FCBA) will host a continuing legal education
(CLE) seminar titled "Client Creation, Conflicts and Confidentiality in the
Administrative Process". The price to attend ranges from $50 to $125. See,
[PDF]. The deadline to register is 5:00 PM on October 12. Location: Wiley Rein & Fielding, 1776 K St., NW.
6:00 - 9:15 PM. The DC Bar Association
will host a continuing legal education (CLE) seminar titled "How to Protect and
Enforce Trademark Rights: A Primer". The speakers will include Shauna Wertheim
(Roberts Mardula & Wertheim) and Steven Hollman (Hogan & Hartson). The price to
attend ranges from $90-$135. For more information, call 202-626-3488. See,
Location: D.C. Bar Conference Center, 1250 H Street NW, B-1 Level.
Deadline to submit comments to the European Commission (EC) in response
to its public consultation regarding possible regulation of "the use of mobile
phones by children and young people". The EC seeks comments "linked to content
and behaviour, such as access to harmful or illegal content, bullying (e.g. distribution
of abusive or compromising messages and photos amongst children), grooming (e.g. strangers
“making friends” with children with a view to meeting them), risks to the privacy of
children, and the risk of unexpectedly high expense." See, EC
|Tuesday, October 17
6:00 - 8:15 PM. There will be a brown bag lunch
titled "Deploying IP-based Services in Rural Areas". The
Federal Communications Bar Association states that
this event is hosted by Common Carrier Committee and IP-Based Communications Practice
Committee will host a brown bag lunch. For more information, contact Andy Morentz at
amorentz at gci dot com. Location: Federal Communications Commission (FCC), 6th Floor
South Conference Room, 445 12th St., SW.