3/21. The U.S. Court of Appeals (8thCir) issued its opinion [PDF] in MPUC v. FCC, denying several consolidated petitions for review of the Federal Communications Commission's (FCC) November 9, 2004, Memorandum Opinion and Order [41 pages in PDF] (MO&O) that preempted an order of the Minnesota Public Utilities Commission (MPUC) that applied its traditional telephone company regulations to Vonage Holding Corporation's DigitalVoice service, which provides voice over internet protocol (VOIP) service.

However, the Court of Appeals also concluded that the issue raised in the petition filed by the Public Service Commission of the State of New York regarding fixed VOIP service "is not ripe for review".

Background. On July 15, 2003, the Minnesota Department of Commerce (MDOC) filed an administrative complaint against Vonage with the MPUC alleging that Vonage offers telephone services in Minnesota, including local exchange service and long distance service, without a certificate under Minn. Stat. §§ 237.16 and 237.74, for those services. The complaint also alleged that Vonage violates Minnesota law by failing to provide 911 service.

On September 13, 2003, the MPUC issued its Order Finding Jurisdiction and Requiring Compliance [9 pages in PDF] finding that the MPUC has jurisdiction, and that Vonage must comply with Minnesota laws that regulate telephone companies, including obtaining certification from the state, complying with 911 rules, and paying 911 fees.

Vonage filed a Petition for Declaratory Ruling with the FCC.

On November 9, 2004, the FCC adopted its MO&O finding that Vonage's VOIP service is an interstate service, and that Minnesota cannot regulate as it had proposed in its September 2003 order. However, the FCC did not classify VOIP service is either an "information service" or a "telecommunications service".

This MO&O stated that "we preempt an order of the Minnesota Public Utilities Commission (Minnesota Commission) applying its traditional ``telephone company´´ regulations to Vonage’s DigitalVoice service, which provides voice over Internet protocol (VoIP) service and other communications capabilities. We conclude that DigitalVoice cannot be separated into interstate and intrastate communications for compliance with Minnesota’s requirements without negating valid federal policies and rules."

It continues that the FCC, and "not the state commissions, has the responsibility and obligation to decide whether certain regulations apply to DigitalVoice and other IP-enabled services having the same capabilities. For such services, comparable regulations of other states must likewise yield to important federal objectives. Similarly, to the extent that other VoIP services are not the same as Vonage's but share similar basic characteristics, we believe it highly unlikely that the Commission would fail to preempt state regulation of those services to the same extent."

The FCC adopted its MO&O on November 9. It released this item on November 12, 2004. See, story titled "FCC Adopts Order on Vonage's VOIP Petition" in TLJ Daily E-Mail Alert No. 1,015, November 10, 2004, and story titled "FCC Releases Vonage VOIP Order" in TLJ Daily E-Mail Alert No. 1,018, November 15, 2004. This MO&O is FCC 04-267 in WC Docket No. 03-211.

Also, it should be noted that while the FCC preempted the state of Minnesota's attempt to regulate VOIP like a phone company, including requiring the provision of 911 service, the FCC subsequently created a federal VOIP 911 regulatory regime.

On May 19, 2005, the FCC adopted its First Report and Order and Notice of Proposed Rulemaking [90 pages in PDF]. The order portion of this item extends 911/E911 regulation to interconnected voice over internet protocol (VOIP) service providers. This proceeding is titled "In the Matter of IP-Enabled Services" and numbered WC Docket No. 04-36. This order and NPRM also assigns a second proceeding title, "E911 Requirements for IP-Enabled Service Providers", and a second number, WC Docket No. 05-196. This item is numbered FCC 05-116.

See also, story titled "FCC Releases VOIP E911 Order" in TLJ Daily E-Mail Alert No. 1,148, June 6, 2005, and stories titled "FCC Adopts Order Expanding E911 Regulation to Include Some VOIP Service Providers", "Summary of the FCC's 911 VOIP Order", "Opponents of FCC 911 VOIP Order State that the FCC Exceeded Its Statutory Authority", and "More Reaction to the FCC's 911 VOIP Order", in TLJ Daily E-Mail Alert No. 1,139, May 20, 2005.

Court of Appeals. Four petitions for review of the FCC order were filed in the Courts of Appeals for the 6th, 8th, and 9th Circuits. All four were consolidated in the 8th Circuit.

The Court of Appeals offered this summary of the issues raised by the petitions: "The four primary issues raised in the consolidated petitions are whether the FCC's order is arbitrary and capricious because it (1) failed to make a threshold determination about whether VoIP services were ``information services´´ or ``telecommunications services,´´ (2) determined it is impractical or impossible to separate the intrastate components of VoIP service from its interstate components, (3) determined state regulation of VoIP service conflicts with federal regulatory policies, and (4) preempted emergency 911 telephone service requirements. A fifth issue raised in the petition filed by the Public Service Commission of the State of New York is whether ¶ 32 of the FCC's order arbitrarily preempted ``fixed´´ VoIP services offered by cable television companies, even though the intrastate components of such service can more easily be separated from the interstate components of such services."

The Court of Appeals first held, with little discussion, that the FCC did not act arbitrarily or capriciously when it failed to classify VOIP service as either an "information service" or a "telecommunications service".

Second, the Court of Appeals held that the FCC did not act arbitrarily or capriciously when it determined that it is impractical or impossible to separate the intrastate components of VOIP service from its interstate components.

It wrote that "It was proper for the FCC to consider the economic burden of identifying the geographic endpoints of VoIP communications in determining whether it was impractical or impossible to separate the service into its interstate and intrastate components", and that "Service providers are not required to develop a mechanism for distinguishing between interstate and intrastate communications merely to provide state commissions with an intrastate communication they can then regulate."

It added that "the issue whether VoIP services can be separated into interstate and intrastate components is a largely fact-driven inquiry requiring a high level of technical expertise", and "in such situations we accord a high level of deference" to the FCC.

Third, the Court of Appeals held that the FCC did not act arbitrarily or capriciously when it determined that state regulation of VOIP service conflicts with federal regulatory policies.

Fourth, the Court of Appeals held that the FCC did not act arbitrarily or capriciously when it the preempted Minnesota's emergency 911 telephone service requirements.

The Court of Appeals wrote that "Because the FCC had already determined there was no practical way for Vonage to identify the geographic location of the calls placed by its customers, Vonage could not comply with this entry regulation and thus the requirement effectively barred Vonage from entry into Minnesota." The Court of Appeals also wrote that the FCC's subsequent VOIP 911 order, which requires interconnected VOIP service providers identify location, does not relate to the reasonableness of Minnesota's order.

Finally, the Court of Appeals addressed New York's PSC's argument regarding fixed VOIP services.

It wrote that "A distinction can be drawn, however, between what is referred to as ``nomadic´´ VoIP service and ``fixed´´ VoIP service. ... For example, cable television companies offer VoIP service to their customers, but when they do so the ensuing transmissions use the cable running to and from the customer's residence. As a result, the geographic originating point of the communications can be determined. Thus, when VoIP is offered as a fixed service rather than a nomadic service, the interstate and intrastate portions of the service can be more easily distinguished."

New York argued that fixed VOIP is no different than traditional landline telephony, and that the FCC should have utilized an end-to-end analysis which looks to the geographic endpoints of the communications.

The Court of Appeals reasoned that the FCC's order only addresses services having basic characteristics similar to Vonage's Digital Voice, and does not address fixed VOIP service providers. Hence, New York's challenge to the FCC's order is not ripe for review.

It added that New York's "contention that state regulation of fixed VoIP services should not be preempted remains an open issue".

Reaction. Vonage CEO Mike Snyder stated in a release that "This decision is great news for Vonage, for our industry, and most importantly for consumers because it protects a young and growing segment of the telecommunications business that's geared toward providing value, innovation and choice to the public ... It allows Vonage to continue growing our business unfettered by outdated pre-Internet regulatory structures."

FCC spokesman David Fiske stated in a release that "Today's decision affirms the Commission's authority to act to provide for public safety by requiring access to 911, preserve universal service, and further other critical goals in an equitable, nondiscriminatory and competitively neutral manner."

This case is Minnesota Public Utilities Commission v. FCC, and consolidated cases, U.S. Court of Appelas for the 8th Circuit, App. Ct. Nos. 05-1069, 05-1122, 05-3114, and 05-3118, petitions for review of a final order of the FCC. Judge Bye wrote the opinion of the Court of Appeals, in which Judge Colloton joined. The third member of the panel, Judge Heaney, resigned on August 31, 2006.

3/21. The U.S. Court of Appeals (7thCir) issued its opinion in JCW Investments v. Novelty, a copyright case involving dolls. JCW makes a line of dolls, including one that makes rude noises and tells rude jokes. Novelty then imitated some of these dolls. JCW filed a complaint in U.S. District Court (NDIll) against Novelty alleging copyright infringement, trademark infringement, and unfair competition. JCW prevailed on all claims. The District Court awarded $116,000 based on lost profits resulting from the copyright infringement, $125,000 in lost profits attributable to trademark infringement, $50,000 in punitive damages based on state unfair competition law, and $575,099.82 in attorneys' fees. The Court of Appeals affirmed in full. The opinion covers the elements of copyright infringement, copyrightable subject matter, substantial similarity, and ideas versus expressions. The opinion also addresses federal preemption in the context of the Lanham Act. Finally, the opinion addresses attorneys fees. This case is JCW Investments, Inc. v. Novelty, Inc., U.S. Court of Appeals for the 7th Circuit, App. Ct. No. 05-2498, an appeal from the U.S. District Court for the Northern District of Illinois, Eastern Division, D.C. No. 02 C 4950, Judge Robert Gettleman presiding.

3/21. The Progress and Freedom Foundation (PFF) released a paper [33 pages in PDF] titled "Social Networking and Age Verification: Many Hard Questions; No Easy Solutions". The author is the PFF's Adam Thierer. The paper argues that "Proposals to impose age verification mandates on social networking websites raise many sensitive questions with potentially profound implications for individual privacy and online freedom of speech and expression. That's especially the case in light of the definitional ambiguities associated with ``social networking.´´" It adds that "age verification would not necessarily solve the problem it is meant to address. Perfect age verification is likely impossible, and history has shown that no technological control is foolproof. Consequently, there is a very real danger that age verification regulations will create a false sense of security", or create "incentives for children to evade online controls and might even encourage them to seek out offshore sites". The PFF will host a panel discussion titled "Age Verification for Social Networking Sites: Is It Possible? And Desirable?" at 12:00 NOON on Friday, March 23, in Room 2322 of the Rayburn Building on Capitol Hill. The speakers will be Thierer, John Cardillo (Sentinel), Tim Lordan (Internet Education Foundation), and Jeff Schmidt (Authis). See, notice and registration page.

3/20. The Securities and Exchange Commission (SEC) filed a civil complaint [PDF] in U.S. District Court (EDPenn) against Cyberkey Solutions, Inc. and James E. Plant alleging Section 10b fraud and other violations of federal securities laws in connection with their issuance of stock while also falsely claiming to have a $25 Million purchase order from the Department of Homeland Security (DHS) for USB flash memory products. The SEC stated in a release that there is also a parallel criminal prosecution.

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 - 2007 David Carney, dba Tech Law Journal. All rights reserved.

The House will meet at 10:00 AM for legislative business. See, Rep. Hoyer's weekly calendar [PDF].

The Senate will meet at 9:30 AM. It will resume consideration of SConRes 21, the Congressional budget resolution for FY 2008.

9:00 AM - 4:00 PM. Day two of a two day public meeting of the Federal Accounting Standards Advisory Board (FASAB). See, notice in the Federal Register, July 12, 2006, Vol. 71, No. 133, at Pages 39318. Location: Room 7C13, GAO Building, 441 G St., NW.

9:00 AM - 12:30 PM. Day two of a two day conference hosted by Georgetown University's Communication, Culture and Technology Program titled "2007 Standards Edge Conference: Stimulating vs. Stifling: Standardization’s Role in Innovation". See, agenda. Press contact: Andy Pino at 202-687-4328 or pinoa at georgetown dot edu. Location: McShain lounge, McCarthy Hall, Georgetown University main campus.

9:00 AM. The House Commerce Committee (HCC) may hold an oversight hearing titled "Oversight of the National Telecommunications and Information Administration and Innovations in Interoperability". The witnesses will be John Kneuer (head of the NTIA), George Rittenhouse (Alcatel-Lucent Bell Labs), Harlin McEwen (National Public Safety Telecommunications Council), Morgan O'Brien (Cyren Call Communications), Steve Devine (Misouri State Highway Patrol Communications Division, and Chair of the National Association of Regional Planning Committees), and Mark Tucker (CoCo Communications). Location: Room 2322, Rayburn Building.

9:30 AM. The Federal Communications Commission's (FCC) will hold an event titled "Open Commission Meeting". See, notice [PDF]. Location: FCC, Commission Meeting Room, 445 12th St. SW.

CANCELLED. 9:30 - 10:30 AM. Vint Cerf will give a presentation at an Federal Communications Commission (FCC) event titled "Policy and Technical Issues Affecting Internet Evolution". Location: FCC, Commission Meeting Room, 445 12th St. SW.

10:00 AM. The Center for Democracy and Technology (CDT) will hold an event titled "press briefing on privacy issues surrounding the REAL ID Act". The speakers will be the CDT's Leslie Harris, Jim Dempsey, Ari Schwartz, and Alissa Cooper. The event will also be teleconferenced. The call-in number is 800-377-8846; the code is 48434056#. Press contact: David McGuire at 202- 637-9800 x106. Location: CDT Conference Room, 11th Floor, 1634 I St.,  NW.

10:00 AM. The House Judiciary Committee's (HJC) Subcommittee on Courts, the Internet, and Intellectual Property will hold a hearing titled "Reforming Section 115 of the Copyright Act for the Digital Age". See, notice [PDF]. Location: Room 2141, Rayburn Building.

10:00 AM. The House Appropriations Committee's Subcommittee on Commerce, Justice and Science will hold a hearing titled "Attorney General". Location: Room 2216, Rayburn Building.

10:00 AM. The Senate Judiciary Committee (SJC) may hold a business meeting. The agenda includes consideration of S 236, the "Federal Agency Data Mining Reporting Act of 2007". This bill has been on many prior agendas. The SJC rarely follows its published agendas. Press contract: Tracy Schmaler (Leahy) at 202-224-2154 or Courtney Boone (Specter) at Courtney_Boone at judiciary-rep dot senate dot gov or 202-224-2984. See, notice. Location: Room 226, Dirksen Building.

10:00 AM. The Heritage Foundation will host a panel discussion titled "Not Patently Obvious: An Innovator's Perspective on Patent Reform". The speakers will be Irwin Jacobs (Chairman of Qualcomm) and Philip Trulock (Heritage). See, notice. Location: Heritage, 214 Massachusetts Ave., NE.

12:00 NOON - 2:00 PM. The DC Bar Association will host a panel discussion titled "Update and Practice Tips from the new Clerk of the U.S. Court of International Trade". The speaker will be Tina Kimble. See, notice. The price to attend ranges from $5-$25. For more information, call 202-626-4363. Location: DC Bar Conference Center, B-1 Level, 1250 H Street, NW.

12:15 - 2:00 PM. The Federal Communications Bar Association's (FCBA) Communications Law, Copyright, and Digital Rights Management Committee will host a brown bag lunch titled "Meet the Register of Copyrights". The speaker will be Marybeth Peters. For more information, contact Ben Golant at bgol at loc dot gov or 202-707-9127. Location: National Association of Broadcasters, 1771 N Street, NW.

2:00 - 4:00 PM. The Department of State's (DOS) International Telecommunication Advisory Committee (ITAC) will meet to prepare advice for the meeting of the Telecommunication Development Advisory Group (TDAG). See, notice in the Federal Register: February 12, 2007, Vol. 72, No. 28, at Pages 6640-6641. Location: DOS, Room 2533A.

2:00 - 6:00 PM. The Federal Communications Bar Association's (FCBA) and the ABA will host a continuing legal education (CLE) titled "Privacy & Data Security for Communications and Media Companies". The deadline for registrations and cancellations is 5:00 PM on March 20. The price to attend ranges from $100 to $300. See, registration form [PDF]. Location: Covington & Burling, Pennsylvania Ave., NW.

The House will meet at 9:00 AM. See, Rep. Hoyer's weekly calendar [PDF].

12:00 NOON - 1:30 PM. The Alliance for Public Technology (APT) will host a brown bag lunch titled "Achieving Universal Broadband: Policies for Stimulating Deployment and Demand". Robert Atkinson (Information Technology and Innovation Foundation), Jim Kohlenberger (Benton Foundation), and Kenneth Peres (Communications Workers of America). For more information, contact apt at apt dot org or 202-263-2970. Location: Benton Foundation, 11th Floor, 1625 K St., NW.

12:00 NOON - 2:00 PM. The Progress and Freedom Foundation (PFF) will host a panel discussion titled "Age Verification for Social Networking Sites: Is It Possible? And Desirable?" The speakers will be Adam Thierer (PFF), John Cardillo (Sentinel), Tim Lordan (Internet Education Foundation), and Jeff Schmidt (Authis). See, notice and registration page. Lunch will be served. Location: Room 2322, Rayburn Building, Capitol Hill.

2:00 PM. The Information Technology Association of America (ITAA) will host a webcast continuing legal education (CLE) seminar titled "Tax Strategies for Development and Acquisition of Intellectual Property: Planning Opportunities and Traps for the Unwary". The speaker will be Joseph Fletcher (Holland & Knight). For more information, contact Mark Uncapher at muncapher at itaa dot org. Audio download copies will be sold after the event.

Day one of a two day meeting of the Federal Bar Association (FBA) titled "FBA 2007 Midyear Meeting". See, event brochure [PDF]. Location: Crystal Gateway Marriott, 1700 Jefferson Davis Highway, Arlington, VA.

Deadline to submit comments to the Federal Trade Commission (FTC) regarding its workshop titled "Proof Positive: New Directions in ID Authentication" on April 23-24, 2007. See, FTC release and notice in the Federal Register, February 26, 2007, Vol. 72, No. 37, at Pages 8381-8383

Deadline to submit reply comments to the Federal Communications Commission (FCC) regarding Verizon's February 9, 2007, petition requesting a waiver of Section 61.42(g) of the FCC's rules in order to continue to exclude the services in FCC Tariff No. 20 from price cap indexes in annual access tariff filings. This pertains to services transferred from Verizon Advanced Data, Inc. (VADI) to Verizon. See, FCC Public Notice [3 pages in PDF] (DA 07-799). This proceeding is WC Docket No. 07-31.

Deadline to submit initial comments to the Federal Communications Commission (FCC) regarding the license transfer application filed by News Corporation, Directv Group, Inc., and Liberty Media Corporation. News Corps seeks to divest its interest in Directv, and Liberty Media seeks to divest its interest in News Corp. See, FCC Public Notice [PDF]. This is DA 07-637 in MB Docket No. 07-18.

Day two of a two day meeting of the Federal Bar Association (FBA) titled "FBA 2007 Midyear Meeting". See, event brochure [PDF]. Location: Crystal Gateway Marriott, 1700 Jefferson Davis Highway, Arlington, VA.

10:00 AM. The Supreme Court of the United States (SCUS) will hear oral argument in Leegin Creative Leather Products v. PSKS, an antitrust case. See, SCUS calendar [PDF] and docket. This case is Sup. Ct. No. 06-480.

Day one of a two day conference hosted by the Consumer Electronics Association (CEA) titled "CEA Washington Forum". See, notice and agenda. Press contact: Megan Pollock at 703-907-7668 or mpollock at CE dot .org. Location: Ronald Reagan Building.

9:30 AM. The Senate Judiciary Committee (SJC) will hold a hearing titled "Oversight of the Federal Bureau of Investigation". The witness will be FBI Director Robert Mueller. Press contract: Tracy Schmaler (Leahy) at 202-224-2154 or Courtney Boone (Specter) at Courtney_Boone at judiciary-rep dot senate dot gov or 202-224-2984. See, notice. Location: Room 106, Dirksen Building.

10:00 AM. The Senate Commerce Committee will hold a hearing titled "Exclusive Sports Programming: Examining Competition and Consumer Choice". See, notice. Location: Room 253, Russell Building.

10:00 AM. The Senate Finance Committee (SFC) will hold a hearing titled "Opportunities and Challenges in the U.S.-China Economic Relationship". See, notice. Location: Room 215, Dirsksen Building.

10:00 AM. The Supreme Court of the United States (SCUS) will hear oral argument in Credit Suisse Securities v. Billing, an antitrust case. See, SCUS calendar [PDF] and docket. This case is Sup. Ct. No. 05-1157.

12:00 NOON - 1:00 PM. The Heritage Foundation will host a panel discussion titled "An Uncensored Satellite Television Message to Homes in the Middle East". The speakers will include Terence Ascott and Rita El Mounayer (SAT-7 International), Habib Badr (Senior Pastor of the National Evangelical Church of Beirut), and Becky Dunlop (Heritage). See, notice. Location: Heritage, 214 Massachusetts Ave., NE.

12:00 NOON. The Cato Institute will host a panel discussion titled "The Dangers of Disclosure: The Unintended Consequences of Campaign Regulations for Free Speech and Privacy". The speakers will be Steve Simpson (Institute for Justice), Dick Carpenter (Institute for Justice), Stephen Weissman (Campaign Finance Institute), and John Samples (Cato). See, notice. This event will be web cast. Lunch will be served after the event. Location: Cato, 1000 Massachusetts Ave., NW.

Day two of a two day conference hosted by the Consumer Electronics Association (CEA) titled "CEA Washington Forum". See, notice. Location: Ronald Reagan Building.

7:30 - 9:30 PM. The Consumer Electronics Association (CEA) will host an event titled "Digital Patriots Dinner". See, notice. Location: Ronald Reagan Building and International Trade Center.

Day one of a three day conference hosted by the National Institute of Standards and Technology (NIST) and others titled "International Conference on Frontiers of Characterization and Metrology for Nanoelectronics". See, notice. The deadline to register is March 8, 2007. Location: NIST, Red Auditorium, 100 Bureau Drive, Gaithersburg, MD.

10:00 AM. The Supreme Court of the United States (SCUS) will hear oral argument in Tellabs v. Makor Issues & Rights, a case regarding the scienter requirements of the Private Securities Litigations Reform Act (PSLRA). See, story titled "Supreme Court Grants Certiorari in PSLRA Case Regarding Pleading of Scienter" in TLJ Daily E-Mail Alert No. 1,515, January 8, 2007. See, SCUS calendar [PDF] and docket. This case is Sup. Ct. No. 06-484.

10:00 AM. The House Commerce Committee's (HCC) Subcommittee on Telecommunications and the Internet will hold a hearing titled "Status of the Digital Television Transition". Location: Room 2123, Rayburn Building.

6:00 - 8:15 PM. The Federal Communications Bar Association (FCBA) will host a continuing legal education (CLE) seminar titled "Internet Freedom". The speakers will be David Gross (Department of State) and David Wu (Columbia University). Price? Location?

Day two of a three day conference hosted by the National Institute of Standards and Technology (NIST) and others titled "International Conference on Frontiers of Characterization and Metrology for Nanoelectronics". See, notice. The deadline to register is March 8, 2007. Location: NIST, Red Auditorium, 100 Bureau Drive, Gaithersburg, MD.