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August 14, 2007, Alert No. 1,622.
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DOJ Applies ADA to Practice of Law

8/9. The Department of Justice's (DOJ) Civil Rights Division (CRD) and Joseph David Camacho, an attorney in the state of New Mexico, entered into an agreement that settles an administrative complaint that alleges violation of the Americans with Disabilities Act (ADA).

The agreement provides for application of the ADA to the practice of law, and requires attorneys to provide and pay for the costs of sign language interpreters and transcriptions for deaf persons.

The agreement does not address the applicability of the ADA to law firm's use of web sites, e-mail, or other information or communications technologies. Nor does it address law firm's obligations to blind or mentally disabled persons.

This settlement agreement resolves a complaint filed against a small law office in Albuquerque, New Mexico, that did not provide a sign language interpreter to a deaf client. The agreement provides that "written notes, e-mail, telephone relays" are not sufficient to satisfy the obligations of attorneys under the ADA to deaf persons.

Wan Kim, the Assistant Attorney General in charge of the CRD, stated in a release that "We hope that this agreement will be a model for other attorneys and law firms." However, this is not the DOJ's first application of the ADA to a law firm.

The ADA regulates a "public accommodation". 42 U.S.C. 12181(7)(F) defines "public accommodation" to include an "office of an accountant or lawyer".

42 U.S.C. 12182, at subsection (a), provides that "No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation ..."

Subsection (b)(2)(A)(iii) provides further that such discrimination includes "a failure to take such steps as may be necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services, unless the entity can demonstrate that taking such steps would fundamentally alter the nature of the good, service, facility, privilege, advantage, or accommodation being offered or would result in an undue burden".

The present action relies upon the clause "absence of auxiliary aids and services".

The agreement requires Comacho to publish a notice in his law office, and in his web site, as follows: "To ensure effective communication with clients and companions who are deaf or hard of hearing, we provide appropriate auxiliary aids and services free of charge, such as: sign language and oral interpreters, note takers, written materials, assistive listening devices and systems, and real-time transcription services."

The agreement provides that law firms are covered by the ADA, and that law firms must provide sign language interpreters and transcriptions. However, the settlement agreement leaves unanswered numerous related questions regarding the applicability of the ADA to law firms.

While the agreement clearly addresses the disability of deafness, it does not address a law firm's obligations to persons with other disabilities. For example, what obligations exist to provide blind persons with audio and/or Braille copies of correspondence and pleadings?

While the agreement clearly addresses the use of sign language interpreters, and providing transcriptions, it is silent as to technology based services. For example, does the ADA impose obligations upon law firms that maintain web sites? Must a law firm with a web site provide Braille and/or audio versions? Must a law firm that communicates with e-mail also provide Braille and/or audio versions?

The DOJ has imposed communications technology based obligations upon hotels. See, for example, January 25, 2007, agreement with Hampton Inn, which requires "TTY's, closed captioning televisions, visual notification devices". See also, December 14, 2006, agreement with a New York City hotel that requires "televisions with built-in captioning features or close-captioning decoders provided for use by persons who are deaf or hard of hearing", "portable visual alarms and communication devices", and "telephone wiring in units to enable persons with hearing impairments to utilize the portable visual alarms and communication devices". And see, July 18, 2007, agreement with a Kansas City hotel that regulates the location and functions of telephones.

While the present agreement clearly covers clients of a law firm, it is not clear as to a law firm's obligations to non-clients. What of persons who seek to become clients of a firm? What of a deaf person's legal opponent's counsel? Does opposing counsel have an obligation to provide materials in multiple formats? Is the answer dependent upon whether or not the disabled person proceeds pro se?

While the agreement's mandatory notice uses the term "clients", the agreement elsewhere uses the terms "individual" and "individuals".

The DOJ is not forthcoming on these issues. TLJ spoke with DOJ attorneys who have handled disability rights matters. They declined to discuss this case, other ADA cases involving law firms, or the activities and operations of the DOJ that relate to application of the ADA to law firms or the practice of law. John Wodatch, Chief of the CRD's Disability Rights Section, did not return a phone call last week from TLJ. Camacho did not return a phone call from TLJ either.

The costs imposed by this agreement are not insignificant. The DOJ only faulted Comacho for failing to provide a sign language interpreter. However, the agreement also requires "real-time transcription services". The cost of transcribing meetings, hearings and trials greatly exceeds the cost of maintaining an interpreter at these events.

Actions such as the present one may decrease the availability of legal services to deaf persons, and other persons protected by the ADA, especially pro bono representation. Discrimination against protected classes of persons by public accommodations, such as "an inn, hotel, motel, or other place of lodging" (see, 12181(7)(A)), "a restaurant, bar" ( 12181(7)(B)), or a "motion picture house" ( 12181(7)(B)) are obvious, and evidence of discrimination is readily available.

In contrast, law firms' decisions to represent particular prospective clients are often based upon a complex range of criteria, including whether the firm possesses the experience and expertise necessary to take the case, the absence of conflicts of interest, the current workload of attorneys in the firm, and the ability of the prospective client to pay legal retainers, fees and costs. Law firms can easily avoid DOJ imposed ADA related costs by declining to represent protected persons, while citing non-ADA related criteria. Comacho, on the other hand, cited the cost of hiring a sign language interpreter in a letter to the complainant.

Perhaps it is also noteworthy that as part of this settlement the complainant is bound to "file no further disciplinary complaints against Joseph David Camacho in connection with the matters described in the Settlement Agreement". That is, the DOJ's CRD seeks to diminish the state bar association's historic role in regulating the ethics of its members, and to replace professional self-regulation with DOJ regulation, inasmuch as the ethics of attorney activities relate to federal statutes.

No AT&T Car at NASCAR

8/13. The U.S. Court of Appeals (11thCir) issued its opinion [14 pages in PDF] in AT&T Mobility v. NASCAR, vacating the judgment of the District Court. There will be no AT&T car in the NASCAR Cup Series.

National Association for Stock Car Auto Racing, Inc. (NASCAR) is the sanctioning body for stock car racing, including the NASCAR Cup Series, which is currently named the NASCAR Nextel Cup Series.

RCR Team # 31 competes in NASCAR Cup Series races. Its driver, Jeff Burton, drives a car numbered 31, that is covered with sponsors' logos. The RCR web site for car 31 still displays pictures of the car with the letters "at&t", and the AT&T blue and white striped globe logo. See, recent picture. The car is Cingular orange. It previously carried the letters "cingular", and the Cingular X man logo. See, old picture.

NASCAR enters into contracts with series sponsors, and the competing teams. It has a contract with Sprint Nextel that provides that no other wireline or wireless telecommunications company, including AT&T, may sponsor the series or any team. The agreement also requires NASCAR to protect Sprint Nextel's exclusivity. However, at the time that Sprint Nextel negotiated its contract, Cingular was a sponsor of car 31. Hence, the contract carved out an exception for Cingular. There is also a contract between NCR and NASCAR. AT&T is not a party to this contract.

Cingular was operated by SBC and BellSouth. AT&T merged with SBC, and then with BellSouth. AT&T acquired Cingular in its merger with BellSouth. The Federal Communications Commission (FCC) nominally approved the merger on December 29, 2006. It released the text of its order [PDF] approving the merger on March 26, 2007.

In January of 2007, AT&T sought to become the main sponsor of car 31. NASCAR refused NCR permission to change the appearance of car 31 to contain the letters "at&t" and the AT&T logo.

AT&T then filed a complaint in U.S. District Court (NDGa) against NASCAR seeking a preliminary injunction barring NASCAR from interfering with its display of its logo on car 31 in NASCAR cup series races. It asserted breach of the contract between NCR and NASCAR. Sprint Nextel intervened.

The District Court concluded that AT&T is a third party beneficiary of the contract, and granted the injunction. See, opinion published at 487 F.Supp.2d 1370

NASCAR and Sprint Nextel brought the present appeal. The Court of Appeals vacated the judgment of the District Court. It reasoned that AT&T is neither a party to, nor a third party beneficiary of, the NASCAR NCR contract. Thus, it lacks standing to seek enforcement of the contract. The Court of Appeals remanded the case for dismissal of the action.

Moreover, the FCC has no express statutory authority to regulate NASCAR racing or advertising.

This case is AT&T Mobility LLC v. National Association for Stock Car Auto Racing, Inc. and Sprint Nextel Corporation, U.S. Court of Appeals for the 11th Circuit, App. Ct. No. 07-12299, an appeal from the U.S. District Court for the Northern District of Georgia, D. C. Docket No. 07-00623-CV-MSH-1.

Lupin Resigns As Qualcomm General Counsel

8/13. Qualcomm announced in a release that Lou Lupin "has resigned his position as executive vice president and general counsel".

On August 6, 2007, the U.S. District Court (SDCal) issued a scathing order [54 pages in PDF] in Qualcomm v. Broadcom, a patent infringement case involving U.S. Patent Nos. 5,452,104 and 5,576,767, which relate to video compression technology.

The District Court held that Qualcomm waived its right to enforce these patents due to intentional and persistent concealment during a standards setting process. See, Qualcomm release and Broadcom release. This case is Qualcomm, Inc. v. Broadcom Corp., U.S. District Court for the Southern District of California, D.C. No. 05-CV-1958-B(BLM).

On August 6, 2007, the Office of the U.S. Trade Representative (OUSTR) decided to permit to become permanent the exclusion order of the U.S. International Trade Commission (USITC) that bars importation by Qualcomm of certain cellular phone chips alleged to infringe a Broadcom patent.

See, OUSTR statement. The USITC proceeding is titled "Certain Baseband Processor Chips and Chipsets, Transmitter and Receiver (Radio) Chips, Power Control Chips, and Products Containing Same, Including Cellular Telephone Handsets" and numbered 337‑TA‑543. See also, Broadcom release.

Qualcomm added that Carol Lam, who joined Qualcomm in February of 2007, will be the acting General Counsel. She was previously the U.S. Attorney for the Southern District of California, until removed by the Bush administration. Qualcomm is searching for a new General Counsel.

More People and Appointments

8/13. Karl Rove, Deputy Chief of Staff and Senior Advisor to President Bush, resigned. See, statements by President Bush and Rove, and transcript of news conference of Rove.

Washington Tech Calendar
New items are highlighted in red.
Tuesday, August 14

The House will not meet due to the August District Work Period. See, House 2007 calendar. The House will next meet at 2:00 PM on September 4, 2007.

The Senate will not meet due to the August District Work Period. The Senate will next meet at 1:00 PM on September 4. See, Senate 2007 calendar.

9:00 AM - 5:00 PM. Day one of a two day meeting of the Department of Energy's (DOE) Advanced Scientific Computing Advisory Committee (ASCAC). See, notice in the Federal Register, July 6, 2007, Vol. 72, No. 129, at Pages 37000-37001. Location: American Geophysical Union (AGU), 2000 Florida Ave., NW.

6:30 - 8:30 PM. The Federal Communications Bar Association's (FCBA) Young Lawyers Committee will host an event titled "Happy Hour". For more information, contact Megan Stull at mstull at willkie dot com, Mia Hayes at mhayes at willkie dot com, or Chris Fedeli at chrisfedeli at dwt dot com. Location: Topaz Bar, Topaz Hotel, 1733 N St., NW.

Wednesday, August 15

9:00 - 11:45 AM. Day two of a two day meeting of the Department of Energy's (DOE) Advanced Scientific Computing Advisory Committee (ASCAC). See, notice in the Federal Register, July 6, 2007, Vol. 72, No. 129, at Pages 37000-37001. Location: American Geophysical Union (AGU), 2000 Florida Ave., NW.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to the FCC notice requests comments that refresh the record on issues raised by the FCC's Notice of Proposed Rulemaking (NPRM) regarding interstate special access services provided by price cap local exchange carriers. The FCC released this notice on July 9, 2007. It is FCC 07-12 in WC Docket No. 05-25 and RM-10593. See, notice in the Federal Register, July 25, 2007, Vol. 72, No. 142, at Pages 40814-40816.

Deadline to register for the August 21, 2007, meeting of the Architectural and Transportation Barriers Compliance Board's (ATBCB) Telecommunications and Electronic and Information Technology Advisory Committee (TEITAC) meeting by teleconference regarding "revising and updating accessibility guidelines for telecommunications products and accessibility standards for electronic and information technology". See, notice in the Federal Register, August 3, 2007, Vol. 72, No. 149, at Pages 43211-43212.

Thursday, August 16

2:00 - 3:00 PM. The President's National Security Telecommunications Advisory Committee (NSTAC) will hold a partially closed meeting by teleconference. At 2:00 - 2:25 PM the NSTAC will meet in open session to hear comments on NSTAC's International Task Force (ITF) Report. At 2:25 - 3:00 PM, the NSTAC will meet in closed session to discuss network security and the global communications environment. To request to participate, contact William Fuller at 703-235-5521 or william dot c dot fuller at dhs dot gov by 5:00 PM on Friday, August 10, 2007. See, notice in the Federal Register: July 31, 2007, Vol. 72, No. 146, at Page 41771.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Second Further Notice of Proposed Rulemaking (2ndFNPRM) [26 pages in PDF] in its proceeding titled "Carriage of Digital Television Broadcast Signals: Amendment to Part 76 of the Commission's Rules". The FCC adopted this item on April 25, 2007, and released it on May 4, 2007. This item is FCC 07-71 in CS Docket No. 98-120. See, notice in the Federal Register, June 6, 2007, Vol. 72, No. 108, at Pages 31244-31250.

Friday, August 17

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) regarding whether to license Vehicle-Mounted Earth Stations as an application of the Fixed-Satellite Service in the conventional and extended Ku-band frequencies. The FCC adopted this NPRM on May 9, 2007 and released the text on May 15, 2007. This item is FCC 07-86 in IB Docket No. 07-101. See, notice in the Federal Register, July 18, 2007, Vol. 72, No. 137, at Pages 39357-39370.

Monday, August 20

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) [PDF] regarding E911 location requirements. This item is FCC 07-108 in PS Docket No. 07-114, CC Docket No. 94-102, and WC Docket No. 05-196. The FCC adopted this item on May 31, 2007, and released on it on June 1, 2007. See, notice in the Federal Register, June 20, 2007, Vol. 72, No. 118, at Pages 33948-33955. See also, story titled "FCC Extends E911 Location Tracking Rules to Interconnected VOIP" in TLJ Daily E-Mail Alert No. 1,589, May 31, 2007.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its request for comments regarding what constitutes a "near reservation" area for federal Lifeline and Link-Up support purposes. See, DA 07-1239 in CC Docket No. 96-45, and notice in the Federal Register, July 5, 2007, Vol. 72, No. 128, at Pages 36706-36708.

Effective date of the Federal Communications Commission's (FCC) Second Memorandum Opinion and Order in its proceeding regarding public safety communications in the 800 MHz Band. The FCC adopted this item on May 24, 2007, and released the text on May 30, 2007. It is FCC 07-102 in WT Docket No. 02-55. See also, notice in the Federal Register, July 20, 2007, Vol. 72, No. 139, at Pages 39756-39761.

Tuesday, August 21

1:00 - 3:00 PM. The Architectural and Transportation Barriers Compliance Board's (ATBCB) Telecommunications and Electronic and Information Technology Advisory Committee (TEITAC) will hold a meeting by teleconference regarding "revising and updating accessibility guidelines for telecommunications products and accessibility standards for electronic and information technology". The deadline to register is August 15, 2007. See, notice in the Federal Register, August 3, 2007, Vol. 72, No. 149, at Pages 43211-43212. Location: Suite 1000, 1331 F St., NW.

More News

8/10. The National Institute of Standards and Technology's (NIST) Office of Law Enforcement Standards (OLES) and the Department of Homeland Security's (DHS) Office of Interoperability and Compatibility (OIC) announced that they will hold a two day meeting "to discuss the development of an implementation profile for VoIP between radio system bridging solutions". The deadline to register to attend is September 4, 2007. The meeting will be on September 11 and 12, 2007, from 8:30 AM to 5:00 PM. It will be held at the National Telecommunications and Information Administration's (NTIA) Institute for Telecommunication Sciences (ITS) in Boulder, Colorado. See, notice in the Federal Register, August 10, 2007, Vol. 72, No. 154, at Pages 45010-45011.

8/10. The Copyright Office (CO) published a notice in the Federal Register that states, effective August 10, 2007, it terminates several proceedings conducted under the former Copyright Arbitration Royalty Panel (CARP) system, and that the  authority to set rates or to make determinations regarding the future distribution of royalty funds associated with these proceedings is transferred to the Copyright Royalty Board (CRB). See, Federal Register, August 10, 2007, Vol. 72, No. 154, at Pages 45071-45072.

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