2/5. The U.S. Court of Appeals (8thCir) issued its opinion [10 pages in PDF] in Level 3 v. St. Louis, a Section 253 dispute between a telecom company and a municipality. This opinion, for the first time, sets the standard for applying Section 253 in the 8th Circuit. It is a standard that municipalities will appreciate. Although, communications companies will be dismayed, and other circuits have rendered different interpretations. This opinion does not resolve, for the 8th Circuit, the question of whether Section 253 creates a private right of action under Section 1983.

Statutes. 47 U.S.C. § 253 provides, at Subsection (a), that "No State or local statute or regulation, or other State or local legal requirement, may prohibit or have the effect of prohibiting the ability of any entity to provide any interstate or intrastate telecommunications service."

The, it provides, at Subsection (c), that "Nothing in this section affects the authority of a State or local government to manage the public rights-of-way or to require fair and reasonable compensation from telecommunications providers, on a competitively neutral and nondiscriminatory basis, for use of public rights-of-way on a nondiscriminatory basis, if the compensation required is publicly disclosed by such government."

The Congress, in drafting this language for the Telecommunications Act of 1996, attained compromise at the expense of clarity. Consequently, this section has been often litigated, with different courts supplying different interpretations. This is the first opinion of the Court of Appeals for the 8th Circuit, which includes North Dakota, South Dakota, Nebraska, Minnesota, Iowa, Missouri, and Arkansas.

42 U.S.C. § 1983 provides, in part, that "Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable."

Background. In the present case, Level 3 and St. Louis entered into a contract in 1999 regarding Level 3's access to municipal rights of way. The contract incorporated provisions from St. Louis' municipal code. In particular, it provided that St. Louis can charge Level 3 footage fees that are based not only on the linear feet of conduit installed by Level 3, but also on the number of active conduits within each linear foot.

In 2003, the parties to disputed the legality of this language.

District Court. Both parties filed complaints in the U.S. District Court (EDMo). Level 3 alleged violation of Section 253, as well as Section 1983. St. Louis sought a declaratory judgment as to the validity of the contract. The District Court consolidated the two cases.

The District Court rejected Level 3's Section 1983 claim, but held on summary judgment that the contract violates Section 253. St. Louis brought the present appeal. State and local government organizations and telecom companies filed amicus curiae briefs.

Court of Appeals. The Court of Appeals reversed the grant of summary judgment to Level 3 on the Section 253 claim.

The Court of Appeals wrote that Subsection (a) is a "rule of preemption", while Subsection (c) is "a safe harbor functioning as an affirmative defense" to that rule. It held that "a plaintiff suing a municipality under section 253(a) must show actual or effective prohibition, rather than the mere possibility of prohibition." There is no burden on the municipality under Subsection (c) until the plaintiff has sustained its burden under Subsection (a). The also Court held that the "fair and reasonable compensation" clause in Subsection (c) cannot serve has the basis of the plaintiff's claim. The Court acknowledged and cited some precedent to the contrary.

The Court also held that "a plaintiff suing a municipality under section 253(a) must show actual or effective prohibition, rather than the mere possibility of prohibition". Again, the Court cited much precedent to the contrary. It commented that "We disagree with the approach of our sister circuits because they reach a conclusion contrary to a complete analysis of the section."

The Court added that "The plaintiff need not show a complete or insurmountable prohibition, ... but it must show an existing material interference with the ability to compete in a fair and balanced market."

The Court stated in its recitation of facts that "Level 3 admitted that it could point to no services it had been unable to provide to date because of the Agreement". Hence, it found that it was error to grant summary judgment to it.

Finally, the Court of Appeals discussed whether Section 253 gives rise to an action for damages under Section 1983. Here too, the circuits are in conflict. This Court ducked the issue. It wrote that "We refrain from joining the fray over whether section 253 creates a private right of action because, as we held above, Level 3 has shown no violation of section 253, whether or not that section creates an enforceable right. Thus, the district court did not err by denying summary judgment on the section 1983 claim."

This case is Level 3 Communications LLC v. City of St. Louis, Missouri, U.S. Court of Appeals for the 8th Circuit, App. Ct. Nos. 06-1398 and 06-1459, appeals from the U.S. District Court for the Eastern District of Missouri.

2/5. The U.S. Court of Appeals (11thCir) issued its opinion [45 pages in PDF] in Tompkins v. Lil' Joe Records, a case regarding the transfer of copyrights held by a bankrupt record company by the Bankruptcy Court. The Court of Appeals affirmed the judgment of the District Court, which upheld the Bankruptcy Court's assignment of the copyrights to another record company, but rejected the artist's contract claims for royalties. This case illustrates one way in which bankruptcy proceedings may work to the detriment of creators.

The plaintiff below, and the appellant in this appeal, is Jeffrey Tompkins, a recording artist, who is known professionally as JT Money [Wikipedia]. He signed a contract in 1989 with Luke Records, Inc., in which he gave Luke Records exclusive, unlimited and perpetual rights throughout the world to the copyrights in sound recordings recorded by him during the term of the contract. In return, he was to receive royalties. Tompkins records three albums, which Luke Records distributed.

Subsequently, Luke Records became the debtor in possession in an involuntary Chapter 7 bankruptcy proceeding, which was later converted into a Chapter 11 proceeding. Tompkins received notice of the proceeding, and filed a proof of claim for royalties owed. The defendants, Lil' Joe Records, Inc., and others, acquired assets, including copyrights in Tompkins works, of the debtor through the bankruptcy proceeding.

The Bankruptcy Court further issued an order that all executory contracts of the debtor are rejected, and barred all claims based upon executory contracts. A contract is executory if it is incomplete, to the extent that some performance under the contract remains. The 1989 contract was executory because Luke Records had yet to pay royalties for past and future sales.

The Court allowed thirty days to contest the order. Tompkins filed nothing with the Court. That is, Lil' Joe Records acquired the copyrights to Tompkins' works without any acquiring any obligation to pay royalties to Tompkins.

Tompkins later filed a complaint in U.S. District Court (NDGa) against Lil' Joe Records and others alleging violation of the Copyright Act and the Lanham Act, and various state law claims. The case was transferred to the Middle District of Florida. The District Court granted summary judgment to Lil' Joe Records.

And now, the Court of Appeals has affirmed. It held that Tompkins transferred the copyrights to Luke Records, that the rejection of the contract by the Bankruptcy Court did not cause ownership of the copyrights to revert back to Thompkins, and that the copyrights passed into Luke Records' bankruptcy estate and from there were assigned to Lil’ Joe Records.

The Court of Appeals also emphasized the importance of the finality of bankruptcy orders. It held that the District Court did not err in granting summary judgment. Rather, it wrote that any error was Tompkins', for not participating more actively in the Bankruptcy Court proceeding.

This case is Jeffrey Tompkins v. Lil' Joe Records, Inc., et al., U.S. Court of Appeals for 11th Circuit, App. Ct. No. 05-10143, an appeal from the U.S. District Court for the Middle District of Florida, D.C. No. D.C. Docket No. 02-61161-CV-FAM.

2/2. The Office of the U.S. Trade Representative (OUSTR) announced in a release that the U.S. has requested World Trade Organization (WTO) dispute settlement consultations with the People's Republic of China regarding "its provision of subsidies that appear to be prohibited by WTO rules".

This is only the third U.S. complaint against the PRC. The first involved the PRC's value added tax rebates that discriminated against imported semiconductors. See, story titled "US Complains to WTO About PR China's Tax Preference for Domestic Producers of Integrated Circuits" in TLJ Daily E-Mail Alert No. 859, March 19, 2004; story titled "Japan Joins US in Complaining to WTO About China's Discriminatory Tax on Integrated Circuits" in TLJ Daily E-Mail Alert No. 869, April 5, 2004; and story titled "PR China Agrees to Stop Preferential Tax Treatment for Domestic Producers of Integrated Circuits" in TLJ Daily E-Mail Alert No. 936, July 13, 2004.

The second complaint, which is still pending, alleges that PRC regulations that impose local content requirements in the automobile sector violate WTO obligations.

The OUSTR release states that "Several of the subsidy programs at issue appear to grant export subsidies, which provide incentives for foreign investors in China and their Chinese partners to export to the United States and other markets.  These subsidies offer significant benefits and are available for all products made in China, including, for example, steel, wood, paper, and other manufactured products."

It elaborates that "China applies a series of measures that, by allowing for refunds, reductions, or exemptions from taxes and other payments owed to the government, appear designed to subsidize exports of manufactured goods or to support the purchase of domestic over imported equipment and certain other manufacturing inputs.  These measures appear to be contrary to a number of WTO rules, including the explicit prohibitions against export subsidies and import substitution subsidies set forth in the WTO Agreement on Subsidies and Countervailing Measures."

2/5. James Kroeker was named Deputy Chief Accountant for Accounting in the Securities and Exchange Commission's (SEC) Office of the Chief Accountant. He previously worked for Deloitte and Touche. See, SEC release.

2/5. Joe Keeley previously joined the Copyright Office (CO) as a Senior Counsel. He previously was counsel to the House Judiciary Committee's (HJC) Subcommittee on Courts, the Internet and Intellectual Property (CIIP).

2/2. Attorney General Alberto Gonzales gave a speech in Dallas, Texas. He did not discuss technology related issues. However, he did address the judicial decision making and the judicial selection process.

1/31. The National Institute of Standards and Technology (NIST) released its Draft Special Publication 800-104 [9 pages in PDF] titled "A Scheme for PIV Visual Card Topography". It contains recommendations for federal agencies in the color coding of Personal Identity Verification (PIV) Cards. The deadline to submit comments is 5:00 PM on February 28, 2007.

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The House will meet at 10:00 AM for legislative business. It may consider HR 742, a bill to extend the term of the Antitrust Modernization Commission (AMC). See, Democrat leader's weekly calendar [PDF].

9:00 AM - 5:00 PM. Day two of a three day meeting of the Architectural and Transportation Barriers Compliance Board's (ATBCB) Telecommunications and Electronic and Information Technology Advisory Committee (TEITAC). The agenda includes consideration of web site design mandates. See, notice in the Federal Register: January 12, 2007, Vol. 72, No. 8, at Pages 1472-1473. Location: Transportation Security Administration, 601 South 12th Street, Arlington, VA.

10:00 AM. The House Financial Services Committee (HFSC) will hold a hearing titled "Committee on Foreign Investments in the United States (CFIUS), One Year After Dubai Ports World". The witnesses will include Clay Lowery (Assistant Secretary for International Affairs, Department of the Treasury). Location: Room 2128, Rayburn Building.

10:15 AM. The House Judiciary Committee (HJC) will meet to mark up several bills, including HR 740, the "Preventing Harassment through Outbound Number Enforcement (PHONE) Act of 2007". See, notice. Location: Room 2141, Rayburn Building.

12:00 NOON - 1:00 PM. The Federal Communications Bar Association's (FCBA) Annual Seminar Committee will host a brown bag lunch to plan events. For more information, contact Yaron Dori at ydori at hhlaw dot om or 202-637-5458. Location: Harris Wiltshire & Grannis, 10th floor conference room, 1200 18th St., NW.

12:00 NOON - 1:30 PM. The DC Bar Association will host a panel discussion titled "Global Trademark Portfolio Part II: Maintenance and Enforcement". The speakers will include Elizabeth Regan (Marriott International), Elisabeth Langworthy (Sutherland Asbill & Brennan), and Leigh Ann Lindquist (Sughrue Mion). The price to attend ranges from $15 to $30. For more information, call 202-626-3463. See, notice. Location: DC Bar Conference Center, 1250 H St NW B-1 Level.

12:00 NOON - 2:00 PM. The DC Bar Association will host a panel discussion titled "Business Activity Tax Nexus: New Cases, Federal Legislation, and FIN 48". The speakers will include Diann Smith (Council On State Taxation) and Kendall Houghton (Sutherland Asbill & Brennan). The price to attend ranges from $10 to $30. For more information, call 202-626-3463. See, notice. Location: DC Bar Conference Center, 1250 H St NW B-1 Level.

2:00 PM. The House Ways and Means Committee will hold a hearing on President's Bush's FY 2008 Budget. The witness will be OMB Director Rob Portman. See, notice. Location: Room 1100, Longworth Building.

6:30 - 8:30 PM. The Federal Communications Bar Association's (FCBA) Diversity & Young Lawyers Committees will host an event titled "Happy Hour". For more information, contact Jeffrey Tignor at jeffrey dot tignor at fcc dot gov or 202-418-0774, or Mark Brennana at MWBrennan at HHLAW dot com or 202-637-5600. Location: Zengo, 781 7th St., NW.

The Federal Communications Commission (FCC) is scheduled to commence Auction No. 69.

The House will meet at 10:00 AM for legislative business. It may consider HR 742, a bill to extend the term of the Antitrust Modernization Commission (AMC). See, Democrat leader's weekly calendar [PDF].

9:00 AM - 3:00 PM. Day three of a three day meeting of the Architectural and Transportation Barriers Compliance Board's (ATBCB) Telecommunications and Electronic and Information Technology Advisory Committee (TEITAC). The agenda includes consideration of web site design mandates. See, notice in the Federal Register: January 12, 2007, Vol. 72, No. 8, at Pages 1472-1473. Location: Transportation Security Administration, 601 South 12th Street, Arlington, VA.

9:15 AM. The Senate Foreign Relations Committee (SFR) will meet to consider the nomination of John Negroponte to be Deputy Secretary of State. The SFR notice states "If a Quorum can be achieved during the 9:15 A.M. Budget Hearing". Location: Room 106, Dirksen Building.

10:00 AM. The Senate Commerce Committee (SCC) will hold a hearing titled "The Present and Future of Public Safety Communications". The witnesses will be Charles Werner (International Association of Fire Chiefs), Harlin McEwen (International Association of Chiefs of Police), Morgan O'Brien (Cyren Call), Steve Largent (CTIA -- The Wireless Association), David Billstrom (National Interop), and Matt Desch (Iridium Satellite). See, notice. Location: Room 253, Russell Building.

10:00 AM. The Senate Judiciary Committee (SJC) will hold a business meeting. The agenda includes numerous bills, including S 236, the "Federal Agency Data Mining Reporting Act of 2007". The agenda also includes consideration of three judicial nominees, Judge Randy Smith (to be a Judge of the U.S. Court of Appeals for the the 9th Circuit), Marcia Howard (U.S. District Court for the Middle District of Florida), and John Jarvey (U.S.D.C. for the Southern District of Iowa). See, notice. The SJC does not take up all of the items on its published agendas. Press contract, Tracy Schmaler at 202-224-2154. Location: Room 226, Dirksen Building.

12:15 PM. The Federal Communications Bar Association's (FCBA) Transactional Practice Committee will host an event titled "Understanding the Committee on Foreign Investment in the US (CFIUS)". The speakers will include Gay Sills (Staff Chair of CFIUS) and Joel Winnik (Hogan & Hartson). Lunch will be provided courtesy of Hogan & Hartson. RSVP to Neil Dellar at neil dot dellar at fcc dot gov or 202-418-8214. Location: Hogan & Hartson, 555 13th St., NW.

2:00 - 4:00 PM. The Department of State's (DOS) International Telecommunication Advisory Committee (ITAC) will meet to prepare advice on U.S. positions for the International Telecommunication Union's (ITU) Telecommunication Standardization Sector Study Group 3 (Tariff and accounting principles including related telecommunication economic and policy issues). See, notice in the Federal Register, January 11, 2007, Vol. 72, Number 7, at Page 1363. Location: undisclosed.

4:00 - 5:45 PM. The American Enterprise Institute (AEI) will host a panel discussion titled "Trade Policy as Foreign Policy: The Evolution of China’s Trade and Commercial Diplomacy". The speakers will be Claude Barfield (AEI), Margaret Pearson (University of Maryland), Phillip Saunders (National Defense University), and Christopher Griffin (AEI). See, notice. Location: AEI, 1150 17th St., NW.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to the Petition for Declaratory Ruling [8 pages in PDF] regarding number portability submitted by T-Mobile USA and Sprint Nextel Corporation on December 20, 2006. They seek a declaratory ruling that carriers obligated to provide number portability may not obstruct or delay the porting process by demanding information from requesting carriers beyond that required to validate the customer request and accomplish the port. See, FCC's Public Notice [3 pages in PDF] (DA 07-39). This proceeding is WC Docket No. 95-116.

The Democrat leader's weekly calendar [PDF] states that "On Friday, no votes are expected in the House."

8:30 AM. The Alliance for Public Technology (APT) will host an event titled "Policy Forum and Susan G. Hadden Pioneer Awards". See, notice. Location: National Press Club, 529 14th St. NW, 13th Floor.

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in Vonage v. FCC, a challenge to the Federal Communications Commission's (FCC) order [151 pages in PDF] adding interconnected VOIP service providers to the tax base of the FCC's universal service subsidy program. See also, story titled "FCC to Tax Interconnected VOIP Service Providers" in TLJ Daily E-Mail Alert No. 1,397, June 22, 2006, and story titled "FCC Releases Order and NPRM Regarding VOIP and Universal Service Taxes" in TLJ Daily E-Mail Alert No. 1,403, June 29, 2006. The FCC's order is FCC 06-94 in Docket Nos. 06-122, 04-36, 96-45, 98-171, 90-571, 92-237, 99-200, 95-116, 98-170. This case is Vonage Holding Corporation and Computer and Communications Industry Association v. FCC and USA, U.S. Court of Appeals for the District of Columbia, App. Ct. Nos. 06-1276 and 06-1317. See, FCC's brief [74 pages in PDF]. Judges Tatel, Garland and Edwards will preside. Location: 333 Constitution Ave., NW.

12:00 NOON - 1:15 PM. The Federal Communications Bar Association's (FCBA) Cable Practice Committee will host a brown bag lunch titled "Commercial Leased Access Debate". The speakers will be Wesley Heppler (Davis Wright Tremaine) and Harold Feld (Media Access Project). For more information, contact Daphney Sheppard at dsheppard at sidley dot com or 202-736-8019. Location: Sidley Austin, 6th floor, 1501 K St., NW.

12:15 PM. The Federal Communications Bar Association's (FCBA) Legislative Practice Committee will host a brown bag lunch titled "Prospects for Universal Service Reform in the 110th Congress". Location: FCC, Room 5-B516 (5th Floor South Conference Room), 445 12th St., SW.

Deadline to submit initial comments to the Federal Communications Commission's (FCC) Media Bureau (MB) in response to its 7th Further Notice of Proposed Rulemaking regarding revisions to the proposed new DTV table of allotments. See, notice in the Federal Register, January 19, 2007, Vol. 72, No. 12, at Pages 2485-2487. This 7thFNPRM is FCC 06-150 in MB Docket No. 87-268.

12:00 NOON - 1:30 PM. The Progress and Freedom Foundation (PFF) will host an event "3rd Annual Media Luncheon". The PFF states that the event is "on-the-record". RSVP by February 9 to Amy Smorodin at 202-969-2957 or asmorodin at pff dot org. Location: The City Club of Washington at Franklin Square, 1300 I St., NW.

Deadline to submit comments to the Office of the U.S. Trade Representative (OUSTR) to assist it in preparing its Section 301 report. Section 182 of the Trade Act of 1974, which is codified at 19 U.S.C. § 2242, requires the OUSTR to identify countries that deny adequate and effective protection of intellectual property rights or deny fair and equitable market access to U.S. persons who rely on intellectual property protection. See, notice in the Federal Register, January 9, 2007, Vol. 72, No. 5, at Pages 1033-1034.

EXTENDED TO FEBRUARY 26. Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its 7th Further Notice of Proposed Rulemaking in its proceeding titled "Advanced Television Systems and Their Impact Upon the Existing Television Broadcast Service". This item proposes a new DTV Table of Allotments providing all eligible stations with channels for DTV operations after the DTV transition. The FCC adopted this item on October 10, 2006, and released it on October 20, 2006. See, story titled "FCC Adopts NPRM Proposing New DTV Table of Allotments" in TLJ Daily E-Mail Alert No. 1,473, October 23, 2006. This item is FCC 06-150 in MB Docket No. 87-268. See, notice in the Federal Register, November 15, 2006, Vol. 71, No. 220, at Pages 66591-66631. See, notice of extention [2 pages in PDF].

Deadline to submit to the Federal Communications Commission (FCC) various Communications Assistance for Law Enforcement Act (CALEA) related information, including an attesting letter for pending CALEA section 107(c)(1) petitions currently on file with the FCC, and compliance monitoring reports (FCC Form 445). See, Second Report and Order and Memorandum Opinion and Order [PDF] adopted on May 3, 2006, and released on May 12, 2006. It is FCC 06-56 in ET Docket No. 04-295. See also, notice in the Federal Register, December 27, 2006, Vol. 71, No. 248, at Page 77625.

9:30 AM - 5:00 PM. The Federal Communications Commission's (FCC) North American Numbering Council (NANC) will meet. See, agenda in notice in the Federal Register, January 26, 2007, Vol. 72, No. 17, at Pages 3847-3848. Location: FCC, Room TW-C305, 445 12th St., SW.

10:00 AM - 12:00 NOON. The Department of State's (DOS) International Telecommunication Advisory Committee (ITAC) will meet to prepare advice on U.S. positions for the Organization of American States (OAS) Inter-American Telecommunications Commission's Permanent Consultative Committee I (Telecommunications). See, notice in the Federal Register, January 11, 2007, Vol. 72, Number 7, at Page 1363. Location: undisclosed.

Day one of a two day event hosted by the Federal Trade Commission (FTC) titled "Broadband Connectivity Competition Policy". The agenda includes discussions of "network neutrality", "Discrimination Against and Blockage of Content and Applications", and "Network Operators Charging Fees for Prioritized Delivery of Data". See, FTC notice. The event will be webcast by the FTC. Location: FTC satellite building conference center, 601 New Jersey Ave., NW.

Deadline to submit initial comments to the Federal Communications Commission (FCC) regarding the National Exchange Carrier Association's (NECA) proposed modification of average schedule formulas for interstate settlements. See, FCC's Public Notice [PDF] (DA 07-306). This proceeding is WC Docket No. 06-223.

10:00 AM. The Senate Banking Committee will hold a hearing titled "The First Monetary Policy Report to the Congress for 2007". The witness will be Ben Bernanke, Chairman of the Board of Governors of the Federal Reserve System. See, notice. Location: Room 106, Dirksen Building.

10:00 AM - 12:00 NOON. The House Science Committee (HSC) will hold a hearing titled "The Administration's FY2008 Research and Development Budget Proposal". The witness will be John Marburger (Director of the Office of Science and Technology Policy). Location: Room 2318, Rayburn Building.

? 2:30 PM. The Senate Judiciary Committee (SJC) will hold a hearing on judicial security and independence. Press contract, Tracy Schmaler at 202-224-2154. Location: Room 226, Dirksen Building.

Day two of a two day event hosted by the Federal Trade Commission (FTC) titled "Broadband Connectivity Competition Policy". The agenda includes discussions of "network neutrality", "Discrimination Against and Blockage of Content and Applications", and "Network Operators Charging Fees for Prioritized Delivery of Data". See, FTC notice. The event will be webcast by the FTC. Location: FTC satellite building conference center, 601 New Jersey Ave., NW.