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June 24, 2008, Alert No. 1,785.
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Supreme Court Affirms in Sprint v. APCC Services

6/23. The Supreme Court issued its opinion [51 pages in PDF] in Sprint v. APCC Services, holding that the assignee of a legal claim for money owed has standing to pursue that claim in federal court, even when the assignee has promised to remit the proceeds of the litigation to the assignor.

The Supreme Court wrote that "When a payphone customer makes a long-distance call with an access code or 1–800 number issued by a long-distance communications carrier, the customer pays the carrier (which completes that call), but not the payphone operator (which connects that call to the carrier in the first place). In these circumstances, the long-distance carrier is required to compensate the payphone operator for the customer’s call." (Parentheses in original.)

When the long distance carrier fails to pay the payphone operator, direct litigation is inefficient, so many payphone operators assign these claims to billing and collection firms called aggregators, who sue on their behalf.

In the present proceeding, payphone claim aggregators filed complaints in U.S. District Courts against Sprint, AT&T and other carriers. These carriers asserted that the plaintiff aggregators lack standing to sue because of pass back provisions.

Ultimately, the lower courts allowed the litigation to proceed. And now, in a 5-4 opinion, the Supreme Court has affirmed.

Justice Breyer wrote the opinion of the Court. Chief Justice Roberts wrote a long dissent, joined by Justices Thomas, Alito, and Scalia. He argued that because of the pass back provision, the aggregators have no stake in the outcome of the litigation, and hence, no standing to sue.

This case is Sprint Communications, Co. L.P., et al. v. APCC Services, Inc., et al., Supreme Court of the U.S., Sup. Ct. No. 07–552, a petition for writ of certiorari to the U.S. Court of Appeals for the District of Columbia.

IG Report Finds DOJ Engaged in Political and Ideological Hiring Practices

6/24. The Department of Justice's (DOJ) Office of the Inspector General (OIG) released a report [115 pages in PDF] titled "An Investigation of Allegations of Politicized Hiring in the Department of Justice Honors Program and Summer Law Intern Program".

It finds that "Under the system implemented by the Attorney General’s Working Group beginning in 2002, a Screening Committee composed primarily of politically appointed employees from the Department’s leadership offices had to approve all Honors Program and SLIP candidates for interviews by the components."

It continues that "The data showed that candidates with Democratic Party and liberal affiliations apparent on their applications were deselected at a significantly higher rate than candidates with Republican Party, conservative, or neutral affiliations."

The report states that there is evidence of political and ideological decision making in 2002, and again in 2006, but not in the years in between. It adds that the problem has since been addressed.

It adds that all committee members denied that they intentionally considered political or ideological affiliations in making their deselections.

The report identifies two members of the committee by name, Esther Slater McDonald and Michael Elston. It states that "McDonald wrote disparaging statements about candidates' liberal and Democratic Party affiliations on the applications she reviewed and that she voted to deselect candidates on that basis", and that Elston "failed to take appropriate action when he learned that McDonald was" doing this.

The report concludes that "McDonald's and Elston's conduct constituted misconduct and also violated the Department's policies and civil service law that prohibit discrimination in hiring based on political or ideological affiliations." However, it adds that since neither is still working for the DOJ, neither is subject to discipline.

The report adds that "With regard to the processes used by components for selecting candidates, we received significant allegations that inappropriate considerations were used in selecting candidates in the Civil Rights Division. The OIG and OPR are jointly investigating various allegations involving the Civil Rights Division, and we will provide our findings in a separate report when that investigation is concluded."

The report classified as liberal such groups as the ACLU and the NOW. It classified as conservative such groups as the Federalist Society and the Heritage Foundation.

The report also classified as liberal two groups that focus on technology issues: the Electronic Privacy Information Center (EPIC) and the Electronic Frontier Foundation (EFF).

Sen. Patrick Leahy (D-VT), Chairman of the Senate Judiciary Committee (SJC), stated in a release that "The Department of Justice is not the president’s legal defense team. It houses our nation's top law enforcement officers, and it has been crippled in the last seven years."

The report praises former Assistant Attorney General (AAG) Peter Keisler for objecting "to the apparent use of political or ideological considerations in the hiring process". He was AAG in charge of the large Civil Division. President Bush nominated him to be a Judge of the U.S. Court of Appeals for the District of Columbia two years ago, and renominated him at the beginning of the 110th Congress. However, Senate Democrats have stalled consideration of his nomination, for political and ideological reasons.

4th Circuit Declines to Extend Public Forum Doctrine in Cyberspace Case

6/23. The U.S. Court of Appeals (4thCir) issued its opinion [19 pages in PDF] in Page v. Lexington County, affirming the District Court's summary judgment for Lexington County. This is a First Amendment free speech case involving the public forum doctrine. The Court of Appeals declined to extend a Constitutional doctrine that has long applied to speech in brick and mortar public fora in a case involving a government e-mail system.

Introduction. The public forum doctrine is the principle that the government cannot deny people access to public property and facilities for the purpose of engaging in constitutionally protected speech if that property is either a traditional forum for speech and assembly, or if the government has opened up that property to the speech of others.

In the present case, a local government entity engaged in a grass roots lobbying campaign to try to influence the state legislature on a particular bill. It used a publicly funded and owned e-mail system to send political messages to the general public. It also opened its e-mail system to the speech of one side in the public debate over the pending bill, while keeping it closed to the other side. The allowed speech was public to public in the sense that it included pieces written by non-government persons, and was sent to the general public. The other side sought access to the government e-mail system, and when rejected, filed a complaint in federal court.

The District Court, and now the Court of Appeals, held that the excluded group does not have access under the public forum doctrine because this case falls under a "government speech" exception.

This opinion relies on no opinion that is directly on point. This opinion ignores Supreme Court precedent on point, and dissembles with some other Supreme Court cases.

While the government facilities in this case include print and ink newsletters, a web site, and an e-mail system, this article focuses on the e-mail system.

Background. The plaintiff in the District Court, and appellant before the Court of Appeals, is Randall Page, a resident of Lexington County in the state of South Carolina. He supported a bill pending in the state legislature titled the "Put Parents in Charge Act". The Court of Appeals wrote that this bill "proposed tax credits for private and parochial school tuition and home-schooling expenses".

The defendant and appellee is the Lexington County School District One, a political subdivision of South Carolina. Its Board of Directors, and various public school groups, opposed the bill.

The school district maintains a web site, e-mail system, and e-mail distribution lists. It also publishes paper and ink newsletters.

The school district used these facilities to express its opposition to the bill. In addition, it published and sent the speech of third parties not affiliated with the school district. This speech was available to, and delivered to, "the public at large".

This included e-mail messages that "included information written by third parties", including "opinion pieces". The Court of Appeals opinion also states that "The principals of two schools" published a third party article "in their newsletters that were sent home to students and parents."

However, the school district only published and sent its own speech, and the speech of its supporters. It refused to publish or send the speech of its opponents. The Court wrote that "The School District agrees that it denied Page access to the channels of communication that it used to disseminate its opposition to the bill".

Page filed a complaint in U.S. District Court (DSCar) against the Lexington County School District One alleging violation of 42 U.S.C. § 1983, asserting violation of his First Amendment free speech rights.

The District Court granted summary judgment to the school district. See, Opinion and Order [39 pages in PDF]. Page brought the present appeal. Various groups that represent school boards filed an amicus curiae brief [34 pages in PDF] in support of the the school district.

Constitution and Statutes. The First Amendment provides, in part, that "Congress shall make no law ... abridging the freedom of speech, or of the press, or the right of the people to peaceably assemble ..."

The 14th Amendment was ratified in 1868. It provides, in part, "nor shall any State deprive any person of life, liberty, or property, without due process of law". The Supreme Court has long held that this clause incorporates the First Amendment protections. That is, states and their political subdivisions are also restricted by the First Amendment speech or press and assembly clauses.

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 ... 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."

Court of Appeals Opinion. The Court of Appeals affirmed the judgment of the District Court. It concluded that the public forum doctrine does not guarantee public access because "the School District engaged in government speech".

The Court of Appeals wrote that this case "depends on whether its communications about its opposition to the Put Parents in Charge Act were government speech or whether the School District used its channels of communication to disseminate the viewpoints of private speakers against the Put Parents in Charge Act to the exclusion of private speakers in favor of the bill, thus discriminating in a limited public forum based on the speaker’s viewpoint."

"Accordingly, we begin by addressing two connected questions: (1) whether the Lexington School District’s campaign against the Put Parents in Charge Act was ``government speech,´´ and (2) whether the School District created a limited public forum, by inviting private speech to be expressed through its communications channels, to which Page was entitled access."

It began its analysis by citing the Supreme Court's 2005 opinion in Johanns v. Livestock Marketing Association for the proposition that "the Government’s own speech ... is exempt from First Amendment scrutiny."

It then cited the Supreme Court's 2000 opinion in Board of Regents of University of Wisconsin System v. Southworth for the proposition that "The First Amendment protects against any governmental activity that abridges the ``freedom of speech´´ of non-governmental persons, but it does not regulate the government’s own policies or its speech in support of them. Government speech ``is, in the end, accountable to the electorate and the political process for its advocacy.´´"

But, these were compelled speech cases, not public forum doctrine cases. That is, in Johanns and Southworth, the government taxed or collected fees from the plaintiffs, and then used those funds to engage in or sponsor speech with which the plaintiffs did not agree. They did not seek access to any public forum for the purposes of expression. They sought to avoid paying for the speech of others. In the present case Page does not seek to avoid paying for the government e-mail system. He seeks equal access to it. Hence, these cases have limited applicability to present issue. Nevertheless, these cases, and especially, Johanns, form the basis of the Court of Appeals opinion.

See also, story regarding Johanns titled "Supreme Court Rules in Compelled Speech Case" in TLJ Daily E-Mail Alert No. 1,141, May 25, 2005.

The Court of Appeals then discussed the Supreme Court's 1983 opinion in Perry Education Association v. Perry Local Educators’ Association, 460 U.S. 37. In that case the Supreme Court held that a school district appropriately excluded persons from its internal mail system because the school district's internal mail system was a nonpublic forum.

The facts in that case were different from the facts in the present case on the pertinent points. Perry involved an internal mail system that only carried mail to government personnel. In contrast, in the present case, the school district e-mail system was used to carry messages from non-government personnel to non-government personnel. In the Court of Appeals' words, messages were sent to "parents", "the public at large", and "virtually anyone who would hear it".

The Court of Appeals then discussed the Supreme Court's 1985 opinion in Cornelius v. NAACP Legal Defense & Education Fund, 473 U.S. 788, a case regarding the concept of "limited public forum". That case pertained to the federal government's creation of the Combined Federal Campaign (CFC), a charity drive aimed at federal employees. It allowed charities, but not others, to solicit contributions. Political advocacy groups argued the under the public forum doctrine they must be permitted to solicit funds through the CFC. The Supreme Court held that the government could create a public forum for a limited purpose, and the political advocacy groups fell outside of this purpose.

The facts in that case were different from the facts in the present case. In Cornelius the government allowed a federal facility (CFC) to be used for speech with one purpose (charity), but not speech with another purpose (political advocacy). In the present case, the government allowed a federal facility (school district e-mail system) to be used for speech with one purpose (political advocacy regarding a pending bill), but not speech with the identical purpose (political advocacy regarding that same bill). Unless the government can argue that speech with which it agrees is a permissible limited purpose, and that speech with which it disagrees falls outside of this purpose, then the limited public forum doctrine is also inapplicable to this case.

Court opinions lack some clarity and consistency on the concepts of "non-public forum", "limited public forum" and "designated public forum". Yet, the present case does not lie in a previously ambiguous area. That the school district carried the speech of third parties directed to the general public rebuts the argument that the e-mail system is a non-public forum. That Page sought to use the same facility, at the same time, to engage in speech on the same legislative issue rebuts the argument that the school district's e-mail system was a limited public forum and that Page's speech fell outside of the limited purpose of the forum.

Also, the Court of Appeals ignored the Supreme Court's landmark opinion regarding the public forum doctrine in Hague v. CIO, 307 U.S. 496 (1939). In that case, a state government attempted to limit the access of speakers to public streets and parks. Justice Owen Roberts, writing for the Court, concluded in lofty language that "Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights and liberties of citizens."

Nor did the Court of Appeals cite two other landmark public forum doctrine cases. These are the Supreme Court's 1981 opinion in Widmar v. Vincent, 454 U.S. 263 (1981), which is discussed immediately below, and International Society for Krishna Consciousness v. Lee, 505 U.S. 672 (1992), which is discussed further below.

In Widmar a state university precluded registered student religious groups from using its facilities, when it had allowed other registered student groups to use the same facilities. The Supreme Court affirmed the Court of Appeals' judgment for the religious groups seeking access.

Justice Lewis Powell, wrote the opinion of the Court. He concluded that "Having created a forum generally open to student groups, the University seeks to enforce a content-based exclusion of religious speech. Its exclusionary policy violates the fundamental principle that a state regulations of speech should be content-neutral, and the University is unable to justify this violation under applicable constitutional standards."

After its review of Supreme Court precedent, the Court of Appeals addressed whether the speech that the school district published and sent was "government speech". It wrote that this "depends on the government's ownership and control of the message, and the government's ownership and control of the message may be determined from consideration of various factors."

It continued that factors to be considered are "the purpose of the program in which the speech occurs", the "editorial control exercised by the government",  the "identity of the person actually delivering the message", and the person bearing the ultimate responsibility for the content of the speech.

The Court then noted that the school board adopted a resolution opposing the bill, and that the third party speech that it sent also opposed the bill. It also noted that the school board "instructed its Director of School/Community Relations to communicate its position through its various communications channels to government employees, legislators, students, and the public at large, urging that the bill be voted down."

The Court continued that the school district did not write all of the content; third parties wrote some of it. But, the government "approved all speech, even that of third parties, as representative of its own position for inclusion in its messages opposing the bill. Thus, it also controlled the message."

And, with respect to the e-mail, it "included in or attached to some e-mails" items written by "private parties, it thereby created a limited public forum. Again, however, the School District, on its own initiative, selected" the outside items and thus adopted them "to support its own message." Moreover, these private parties did not have "access to the School District’s e-mail facility."

Hence, the Court of Appeals concluded that "the School District established its own message and effectively controlled the channels of communication through which it disseminated that message, as required for application of the government speech doctrine".

Thus, speech, even that written by private parties, falls under the "government speech doctrine" if it represents the position of the government, and the government reviewed and selected it for transmission over its e-mail system.

TLJ Comment and Criticism. The interpretation announced in this opinion will especially impact cyber fora. That is, if the government were to invite a speaker to talk in a government auditorium or on a public street, the government cannot have the degree of control over the content of the speech, and answers to questions, that this opinion appears to require for the "government speech doctrine" to apply.

In contrast, the government can review and approve the content of text files, and audio and video clips that are sent by e-mail, or published in web sites. The government can meet the control test set forth in the just released opinion in the context of these cyber media.

Also, the holding of this case that speech is exempt from the public forum doctrine if it is approved, reviewed, and selected by the government, is largely indistinguishable in substance and effect from holding that in public facilities the government can promote speech with which it agrees and censor speech with which it disagrees. Yet, if freedom of speech means anything, it is that the government cannot promote speech that it supports, while suppressing speech that it rejects.

On the other hand, the damage to free speech inflicted by this opinion is limited to public spaces and facilities. This opinion has no adverse consequences for privately sent e-mail, privately operated web sites, private interactive computer services, and other private interactive media. Also, to the limited extent that government entities operate interactive media, these would likely fall outside of the scope "government speech doctrine" as articulated in this opinion, because the government operators may not exercise the requisite degree of control.

Finally, while being compelled to send private political speech by e-mail may seem odious to government entities, these entities could easily avoid this outcome without relying upon the holding in this case. First, the school district in this case could, and perhaps should, have refrained from waging a grass roots legislative lobbying campaign. School boards exist to oversee educational operations, and implement state statutes -- not to engage in political lobbying. Second, having decided to participate in the legislative process, the school district could have refrained from using taxpayer funded e-mail facilities to wage its campaign. Third, having decided to lobby, and to use the publicly owned e-mail system, it could have restricted its lobbying to messages authored by government personnel, and not incorporated its outside allies into its e-mail campaign.

Rather, the school district both declined to exercise restraint, and excluded opposing speakers from its facilities. It then turned to the courts to render an opinion allowing its conduct. In allowing this, the Court of Appeals degrades traditional American notions of freedom of speech in public places and facilities.

Spurious Free Speech Claims. There are reasons for courts to scrutinize public forum doctrine claims for access to government property. In many of these cases the core purpose for seeking access is not speech or assembly. Rather, the First Amendment is asserted solely as a pretext for engaging in other activities that enjoy no Constitutional protection, such as disrupting government activities and operations, engaging in non-expressive commerce, or accosting and begging persons in the forum.

Several cases address these situation. For example, the Supreme Court held in its 1992 opinion in International Society for Krishna Consciousness v. Lee, 505 U.S. 672, that Hari Krishnas do not have a Constitutional right to pester air travelers in publicly owned airports with pleas for money. The Hari Krishnas argued that this was a religious ritual, protected by the First Amendment speech clause, and that they perform this religious ritual in airports.

The Court held that airports are not public fora. In addition, Justice Anthony Kennedy wrote in a concurring opinion that is relevant to the present case that "failure to recognize the possibility that new types of government property may be appropriate forums for speech will lead to a serious curtailment of our expressive activity."

In the present case there are no facts suggesting that Page had any motive for speaking other than expressing support for a pending bill.

This case is Randall Page v. Lexington County School District One, U.S. Court of Appeals for the 4th Circuit, App. Ct. No. 07-1697, an appeal from the U.S. District Court for the District of South Carolina, at Columbia, D.C. No. 3:06-cv-00249-CMC, Judge Cameron Currie presiding.

Judge Paul Niemeyer wrote the opinion of the Court of Appeals, in which Judges Karen Williams and Allyson Duncan joined. Judges Williams and Niemeyer were appointed by former President Bush. Judge Duncan was appointed by the current President Bush.

Washington Tech Calendar
New items are highlighted in red.
Wednesday, June 25

The House will meet at 10:00 AM for legislative business. See, Rep. Hoyer's schedule for week of June 23, and schedule for June 25.

The Senate will meet at 9:30 AM. It will resume consideration of the House message to accompany HR 3221 [LOC | WW], the "American Housing Rescue and Foreclosure Prevention Act of 2008".

TIME CHANGE. 9:00 AM. The Senate Judiciary Committee's (SJC) Subcommittee on the Constitution will hold a hearing titled "Laptop Searches and Other Violations of Privacy Faced by Americans Returning from Overseas Travel". Sen. Russ Feingold (D-WI) will preside. The witnesses will be Larry Cunningham (Assistant District Attorney, Bronx County), Susan Gurley (Association of Corporate Travel Executives), Farhana Khera (Muslim Advocates), Nathan Sales (George Mason University School of Law), Peter Swire (Ohio State University law school), and Lee Tien (Electronic Frontier Foundation). See, notice. Location: Room 226, Dirksen Building.

10:00 AM. The House Small Business Committee's (HSBC) Subcommittee on Regulations, Healthcare and Trade will hold a hearing titled "The Impact of Online Advertising on Small Firms". Location: Room 1539, Longworth Building.

10:00 AM. The House Appropriations Committee (HAC) will meet to mark up three items, including the commerce, justice, and science appropriations bill. The HAC will webcast this meeting. This mark up has been rescheduled from June 19. Location: Room 2359, Rayburn Building.

10:00 AM. The Senate Homeland Security and Government Affairs Committee will hold a business meeting. The agenda includes consideration of Elaine Duke to be Under Secretary for Management at the Department of Homeland Security (DHS). See, agenda [PDF]. Location: Room 342, Dirksen Building.

10:00 AM. The Securities and Exchange Commission (SEC) will hold an event titled "Open Meeting". See, agenda. Location: SEC, Auditorium, Room L-002, 100 F St., NE.

10:00 AM. The Department of Homeland Security's (DHS) Homeland Security Advisory Council will hold a partially closed meeting to review recommendations of the Essential Technology Task Force (ETTF) and to receive briefings from Secretary Michael Chertoff and others. See, notice in the Federal Register, June 19, 2008, Vol. 73, No. 119, at Page 34945. Location: Ritz-Carlton Hotel, Salon II, 1150 22nd St., NW.

11:00 AM. The House Commerce Committee (HCC) will meet to mark up HR __, the "Protecting Records, Optimizing Treatment, and Easing Communication through Healthcare Technology Act of 2008". The HCC will webcast this markup. Location: Room 2123, Rayburn Building.

2:00 PM. David McCormick (Under Secretary for International Affairs at the Department of the Treasury) will give a speech titled "Remarks on International Economic Policy in a Globalized World". For more information, contact Savina Rupani at 202-457-8719 or srupani at csis dot org. Location: Center for Strategic and International Studies, 1800 K St., NW.

Thursday, June 26

The House will meet at 10:00 AM for legislative business. See, Rep. Hoyer's schedule for week of June 23.

10:00 AM. The Senate Judiciary Committee (SJC) may hold an executive business meeting. The agenda includes consideration of four judicial nominees: Paul Gardephe (to be a Judge of the U.S. District Court for the Southern District of New York), Kiyo Matsumoto (E.D.N.Y.), Cathy Seibel (S.D.N.Y.), and Glenn Suddaby (N.D.N.Y.). The SJC rarely follows its published agenda. Location: Room 226, Dirksen Building.

10:00 AM. The Senate Finance Committee (SFC) will hold a hearing titled "The Foundation of International Tax Reform: Worldwide, Territorial, and Something in Between". The witnesses will be James Hines (University of Michigan Law School), Stephen Shay (Ropes & Gray), Roseanne Altshuler (Rutgers University), and Robert Dilworth (McDermott Will & Emery). See, notice. Location: Room 215, Dirksen Building.

11:00 AM - 12:30 PM. The Heritage Foundation will host a panel discussion titled "Homeland Security, Privacy and Civil Liberties: A Five Year Review". The speakers will be Michael Chertoff (Secretary of Homeland Security), Daniel Sutherland (Officer for Civil Rights and Civil Liberties, DHS), Hugo Teufel (Chief Privacy Officer, DHS), Peter Swire (Ohio State University law school), Kevin Lanigan (Human Rights First), and James Carifano (Heritage). See, notice. Location: Heritage, 214 Massachusetts Ave., NE.

12:00 NOON. The Cato Institute will host a panel discussion titled "Trade Facilitation: The New Wave of International Trade Liberalization?". The speakers will be Steven Creskoff (Creskoff & Doram), Michael Finger, Bill Lane (Caterpillar, Inc.), John Wilson (World Bank), and Dan Ikenson (Cato). Cato will webcast this event. Lunch will be served after the program. See, notice and registration page. Location: Cato, 1000 Massachusetts Ave., NW.

4:00 - 5:45 PM. The American Enterprise Institute (AEI) will host a discussion of the book [Amazon] titled "Termites in the Trading System: How Preferential Agreements Undermine Free Trade", by Jagdish Bhagwati. The speakers will be Bhagwati, Brian Hindley (European Centre for International Political Economy), Philip Levy (AEI), and Claude Barfield (AEI). See, notice. Location: AEI, 12th floor, 1150 17th St., NW.

Deadline to submit initial comments to the Federal Communications Commission (FCC) regarding Verizon's and Qwest's request that the FCC grant them the same forbearance that it granted to AT&T in its April 24, 2008, Memorandum Opinion and Order [31 pages in PDF]. That MOO is FCC 08-120 in WC Docket No. 07-21 and WC Docket No. 05-342. See, notice in the Federal Register, June 12, 2008, Vol. 73, No. 114, at Pages 33430-33431.

Friday, June 27

The House will meet at 9:00 AM for legislative business. See, Rep. Hoyer's schedule for week of June 23.

9:00 AM - 4:00 PM. The Federal Communications Commission's (FCC) Consumer Advisory Committee will meet. See, FCC notice [PDF] and notice in the Federal Register, June 11, 2008, Vol. 73, No. 113, at Page 33090. Location: FCC, Commission Meeting Room, 445 12th St., SW.

10:00 AM. The House Judiciary Committee's (HJC) Antitrust Task Force will hold a hearing titled "Competition on the Internet". See, notice. The HJC will webcast this hearing. Location: Room 2141, Rayburn Building.

Deadline to submit comments to the U.S. Patent and Trademark Office (USPTO) regarding its proposal to amend the Rules of Practice in Trademark Cases to require a fee of $50 for filing a request for reconsideration on paper of an examining attorney's final refusal, whereas no fee would be required for a request for reconsideration filed through the Trademark Electronic Application System (TEAS). See, notice in the Federal Register, April 28, 2008, Vol. 73, No. 82, at Pages 22894-22895.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Further Notice of Proposed Rulemaking (FNPRM) regarding whether the eligible telecommunications carrier (ETC) obligation to provide monthly digital television (DTV) transition notices to low income subscribers should be expanded to require the provision of such notices to all subscribers, and whether multichannel video programming distributors (MVPDs) should be required to provide on air DTV transition education on their systems. This FNPRM [30 pages in PDF] is FCC 08-119 in MB Docket No. 07-148. See also, correction [PDF]. See, notice in the Federal Register, May 28, 2008, Vol. 73, No. 103, at Pages 30591-30596.

Saturday, June 28

Deadline to submit comments to the National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) regarding its SP 800-108 [20 pages in PDF] titled "Recommendation for Key Derivation Using Pseudorandom Functions".

Monday, June 30

The House will begin its July 4th recess. See, Rep. Hoyer's 2008 calendar [4.25 MB PDF].

The Senate will begin its July 4th recess. See, Senate 2008 calendar.

Accelerated deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its notice of proposed rulemaking (NPRM) regarding small, minority owned and women owned businesses in broadcasting. See, original notice in the Federal Register, May 16, 2008, Vol. 73, No. 96, at Page 28400-28407, and notice accelerating comment deadlines in the Federal Register, May 29, 2008, Vol. 73, No. 104, at Page 30875. The FCC adopted this NPRM on December 18, 2007, and released the text on March 5, 2008. See, NPRM [70 pages in PDF], first corrections [2 pages in PDF] and second correction [2 pages in PDF]. This NPRM is FCC 07-217 in MB Docket Nos. 07-294, 06-121, 02-277, and 04-228, and MM Docket Nos. 01-235, 01-317, and 00-244.

Tuesday, July 1

The House will not meet.

The Senate will not meet.

9:00 AM - 4:00 PM. The The National Institute of Standards and Technology (NIST) will hold a public workshop regarding the establishment of a laboratory accreditation program for laboratories performing inoperability, performance, and conformance biometrics testing on Personal Identification Verification equipment. The Department of Homeland Security (DHS) requested that the NIST establish such a program. See, notice in the Federal Register, June 13, 2008, Vol. 73, No. 115, at Pages 33806-33807. Location: NIST, Green Auditorium, Gaithersburg, MD.

2:00 - 3:30 PM. The American Enterprise Institute (AEI) will host a book forum. The speakers will be Mark Krikorian (Center for Immigration Studies), author of the book [Amazon] titled "The New Case Against Immigration: Both Legal and Illegal", Jason Richwine (AEI), Fred Siegel (Progressive Policy Institute), and David Frum (AEI). See, notice. Location: AEI, 1150 17th St., NW.

Wednesday, July 2

The House will not meet.

The Senate will not meet.

12:00 NOON. The Cato Institute will host a discussion of the book [Amazon] titled "India: The Emerging Giant", by Arvind Panagariya (Columbia University). The speakers will be Panagariya and Swaminathan Aiyar (Cato). See, notice and registration page. Lunch will follow the program. Location: Cato, 1000 Massachusetts Ave., NW.

Deadline for transmittal of applications for awards for Fiscal Year 2009 from the Department of Education's (DOE) Technology and Media Services for Individuals with Disabilities program. This program provides awards to "support educational media services activities designed to be of educational value in the classroom setting to children with disabilities" and to "provide support for captioning and video description of educational materials that are appropriate for use in the classroom setting". See, notice in the Federal Register, June 2, 2008, Vol. 73, No. 106, at Pages 31442-31448.

7th Circuit Rules in Antitrust Tying Case

6/23. The U.S. Court of Appeals (7thCir) issued its opinion in Sheridan v. Marathon, an antitrust case involving tying of services. The Court of Appeals affirmed the District Court's dismissal of the complaint.

The services in this case are not technology related. They are gasoline sales, and associated credit card payments. However, tying issues often arise in the sale of technology and communications services and products.

This is a class action antitrust case brought by Marathon gas dealers against Marathon Petroleum Company alleging that it is violating the Section 1 of the Sherman Antitrust Act by tying gasoline dealerships to the processing of credit card sales at those dealerships.

Richard PosnerJudge Richard Posner (at left), one of the leading authorities on antitrust law, wrote the opinion of the Court of Appeals. He wrote a summary of the state of the law on tying.

He began by writing that "In a tying agreement, a seller conditions the sale of a product or service on the buyer’s buying another product or service from or (as in this case) by direction of the seller. The traditional antitrust concern with such an agreement is that if the seller of the tying product is a monopolist, the tie-in will force anyone who wants the monopolized product to buy the tied product from him as well, and the result will be a second monopoly. This will happen, however, only if the tied product is used mainly with the trying product; if it has many other uses, the tie-in will not create a monopoly of the tied product." (Parentheses in original.)

"Tying agreements can also be a method of price discrimination ...". Posner continued that the monopolist might charge a higher price for the product with the less elastic users, and a lower price for the product with the more elastic users. However, he noted that "price discrimination does not violate the Sherman Act unless it has an exclusionary effect. And a monopolist doesn't have to actually take over the market for the tied product in order to discriminate in price. He just has to interpose himself between the sellers of the tied product and his own customers so that he can reprice that product to his customers."

"The Supreme Court used to deem tying agreements illegal provided only that ... the tying arrangement embraced a nontrivial amount of interstate commerce. ... Beginning in the 1970s, however, the Court began to reexamine and in some instances discard antitrust doctrines that (like tying agreements) place limitations on distributors or dealers." (Parentheses in original.)

The most recent in this line of Supreme Court cases was Leegin Creative Leather Products, Inc. v. PSKS, Inc., 551 U.S. __. See, June 28, 2007 opinion [55 pages in PDF] and story titled "SCUS Holds That All Vertical Price Restraints Are Subject to Rule of Reason" in TLJ Daily E-Mail Alert No. 1,603, June 28, 2007.

"The Court has not discarded the tying rule, and we have no authority to do so. But it has modified the rule by requiring proof that the seller has ``market power´´ in the market for the tying product", wrote Posner, citing the 2006 opinion [PDF] of the Supreme Court in Illinois Tool Works, Inc. v. Independent Ink, Inc., 547 U.S. 28. See also, story titled "Supreme Court Vacates in Patent Tying Antitrust Case" in TLJ Daily E-Mail Alert No. 1,321, March 2, 2006.

So, wrote Posner, "market power" is key, "but its meaning requires elucidation. Monopoly power we know is a seller's ability to charge a price above the competitive level (roughly speaking, above cost, including the cost of capital) without losing so many sales to existing competitors or new entrants as to make the price increase unprofitable." (Parentheses in original.)

"The word ``monopoly´´ in the expression ``monopoly power´´ was never understood literally, to mean a market with only one seller; a seller who has a large market share may be able to charge a price persistently above the competitive level despite the existence of competitors. Although the price increase will reduce the seller’s output (because quantity demanded falls as price rises), his competitors, if they are small, may not be able to take up enough of the slack by expanding their own output to bring price back down to the competitive level; their costs of doing so would be too high -- that is doubtless why they are small." (Parentheses in original.)

"As one moves from a market of one very large seller plus a fringe of small firms to a market of several large firms, monopoly power wanes. Now if one firm tries to charge a price above the competitive level, its competitors may have the productive capacity to be able to replace its reduction in output with an increase in their own output at no higher cost, and price will fall back to the competitive level. Eventually a point is reached at which there is no threat to competition unless sellers are able to agree, tacitly or explicitly, to limit output in order to drive price above the competitive level. The mere possibility of collusion cannot establish monopoly power, even in an attenuated sense to which the term ``market power´´ might attach, because then every firm, no matter how small, would be deemed to have it, since successful collusion is always a possibility."

Judge Posner then applied this analysis to the facts of the present case. He wrote that Marathon is the only seller of Marathon franchises, but Marathon is a trademark, not a market. And, the complaint alleges no market in which Marathon has a monopoly or market power, and alleges no collusion with other gas companies.

He continued that "we are given no reason to doubt that if Marathon raises the price of using the Marathon name above the competitive level by raising the price of the credit card processing service that it offers, competing oil companies will nullify its price increase simply by keeping their own wholesale gasoline prices at the existing level."

However, Posner not only concluded that there was no illegal tying. He rejected the argument that there was even product tying. Posner concluded that Marathon did not tie credit card processing to the franchise, because it merely required franchisees to honor the Marathon credit card. The dealers could accept other credit cards. Posner wrote that "The additional cost of using multiple card processing systems is not a penalty imposed by Marathon to force the use of its system, but an economy that flows directly from Marathon’s offering its own credit card and credit card processing service."

Finally, Posner rejected the plaintiffs' alternative theory of antitrust liability, that in exchange for overcharging its dealers for credit card processing, Marathon received kickbacks from the banks and other financial institutions that offer credit cards.

This case is John Sheridan, et al. v. Marathon Petroleum Company, LLC, et al., U.S. Court of Appeals for the 7th Circuit, App. Ct. No. 07-3543, an appeal from the U.S. District Court for the Southern District of Indiana, Indianapolis Division, D.C. No. 1:06-cv-1233-SEB-VSS, Judge Sarah Barker presiding.

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