8/7. The U.S. Court of Appeals (9thCir) issued its opinion [11 pages in PDF] in Peck v. Cingular Wireless, a class action against a wireless carrier alleging that its inclusion of a line item on its monthly bills violates a Washington state statute.

The District Court dismissed the complaint on the grounds that 47 U.S.C. § 332(c)(3)(A) preempts the claims in the complaint. The Court of Appeals reversed.

The much litigated subsection 332(c)(3)(A) provides, in part, that "no State or local government shall have any authority to regulate the entry of or the rates charged by any commercial mobile service or any private mobile service, except that this paragraph shall not prohibit a State from regulating the other terms and conditions of commercial mobile services".

Peck is a Cingular Wireless customer. Cingular included a 31 cents line item charge titled "State B&O Surcharge" on his bill. A Washington state statute, codified at Revised Code of Washington (RCW) 82.04.220, imposes a business and occupation tax, and Cingular passed this on to its customers.

However, RCW 82.04.500 provides that "It is not the intention of this chapter that the taxes herein levied upon persons engaging in business be construed as taxes upon the purchasers or customers, but that such taxes be levied upon, and collectible from, the person engaging in the business activities herein designated and that such taxes shall constitute a part of the operating overhead of such persons."

Jared Peck, a class action plaintiff, filed a complaint in state court in Washington alleging violation of RCW 82.04.500. He also also alleged that Cingular failed to disclose that it would pass this State B&O Surcharge on to its customers, and thus, he also pled breach of contract, unjust enrichment, and violation of Washington's Consumer Protection Act.

Cingular removed the action to the U.S. District Court (WDWash). The District Court dismissed the complaint on the basis that the Washington statute attempted to regulate line item charges, and is thus preempted by subsection 332 (c)(3)(A).

Peck brought the present appeal.

After the District Court's dismissal, the Washington Supreme Court, which is the highest court in the state, held in Nelson v. Appleway Chevrolet, Inc., 157 P.3d 847 (2007), that the B&O tax could be passed on the consumers in the form of a line item charge, but only if disclosed and negotiated as an element of the final price.

The Court of Appeals reversed the judgment of the District Court.

The Court of Appeals reasoned that "RCW 82.04.500, as interpreted in Appleway Chevrolet, simply structures the contract's negotiation and disclosure, mandating that businesses quote all prices inclusive of Washington’s B&O Tax. Under RCW 82.04.500, businesses are allowed to itemize the B&O Tax and pass the B&O Tax to the consumer, so long as the tax is disclosed to the consumer ``during the course of negotiating a purchase price.´´"

It concluded that "RCW 82.04.500 therefore acts as a consumer protection statute, regulating the method of disclosure, rather than the reasonableness or propriety of the underlying rate." (Footnote omitted.)

Hence, it held that Section 332 "does not preempt state claims brought pursuant to RCW 82.04.500".

This case is Jared Peck, et al. v. Cingular Wireless, et al., U.S. Court of Appeals for the 9th Circuit, App. Ct. No. 06-36027, an appeal from the U.S. District Court for the Western District of Washington, D.C. No. CV-06-00343-TSZ, Judge Thomas Zilly presiding. Judge Joseph Hood, sitting by designation, wrote the opinion of the Court of Appeals, in which Judges Carlos Bea and Milan Smith joined.

8/7. The Federal Communications Commission (FCC) adopted and released its Third Report and Order [PDF] regarding establishing a Commercial Mobile Alert System (CMAS). This order pertains to carrier participation in this program, and notices to consumers, existing subscribers, and the FCC.

The CMAS was created by the WARN Act in 2006, and is being implemented by the FCC. The CMAS expands government alerts to cell phones and other mobile devices. It is a voluntary program in which carriers can choose whether or not to participate.

The Congress enacted the "Warning, Alert, and Response Network Act", or "WARN Act", as part of HR 4954 (109th Congress), the port security bill, which is now Public Law No. 109-347. The WARN Act begins at Section 601 of the bill.

The WARN Act requires the FCC to promulgate Commercial Mobile Service Alert (CMSA) regulations. The FCC adopted and released its first Report and Order [62 pages in PDF] on April 9, 2008. The FCC adopted and released its Second Report and Order [40 pages in PDF] on July 8, 2008. The just released item is the third order.

The new rules adopted by the order provide that " A CMS provider that elects not to transmit CMAS Alert Messages, in part or in whole, shall provide clear and conspicuous notice, which takes into account the needs of persons with disabilities, to new subscribers of its non-election or partial election to provide Alert messages at the point-of-sale."

The rules add that "The point-of-sale includes stores, kiosks, third party reseller locations, web sites (proprietary or third party), and any other venue through which the CMS provider’s devices and services are marketed or sold." (Parentheses in original.)

The new rules also require notice to existing subscribers of elections not to transmit CMAS messages. The new rules also mandate the content of these notices.

The new rules also require all CMS providers to provide a letter to the FCC regarding whether they will participate, and specifying some of the contents of those letters.

The new rules also provide that "CMS providers shall submit their letter within 30 days after the release of the Third Report and Order in PS Docket No. 08-146." That is, this letter is due within 30 days of August 7, which is September 6, a Saturday. The FCC's web site states that these letters are due by Monday, September 8.

This item is FCC 08-184. The caption of this order, as well as of previous orders, states that this proceeding is PS Docket No. 07-287. However, the rules adopted by this order state that this proceeding is PS Docket 08-146.

8/8. The Progress & Freedom Foundation (PFF) and Center for Democracy and Technology (CDT) filed an amicus curiae brief [47 pages in PDF] with the Supreme Court in FCC v. Fox Television Stations, a broadcast indecency case.

The PFF and CDT urge affirmance of the Court of Appeals, which held that the Federal Communications Commission's (FCC) new policy sanctioning "fleeting expletives" is arbitrary and capricious under the Administrative Procedure Act (APA) for failing to articulate a reasoned basis for its change in policy.

The PFF and CDT focus on new information technologies, including DVD players, digital video recorders (DVRs), and video on demand (VOD) services, that give parents greater control over what their child watch, and hence, render obsolete the opinion relied upon by the FCC, FCC v. Pacifica Foundation, 438 U.S. 726 (1978).

Background. On November 6, 2006, the FCC issued an Order [36 pages in PDF] on remand regarding complaints that four broadcast television programs contained indecent and/or profane material. The Order concluded, among other things, that comments made by Nicole Richie during "The 2003 Billboard Music Awards" and by Cheryl LaPiere during the "The 2002 Billboard Music Awards" were indecent and profane.

See also, stories titled "FCC Releases Indecency Orders" in TLJ Daily E-Mail Alert No. 1,332, March 20, 2006, and "FCC Releases Order on Remand Regarding Broadcast Indecency" in TLJ Daily E-Mail Alert No. 1,484, November 7, 2006. This order is FCC 06-166.

Fox, CBS, and ABC filed petitions for review of the FCC's order. The U.S. Court of Appeals (2ndCir) issued its divided opinion [53 pages in PDF] on June 4, 2007. See, See, story titled "2nd Circuit Vacates and Remands FCC Profanity Order" in TLJ Daily E-Mail Alert No. 1,590, June 4, 2007.

The Office of the Solicitor General (OSG) filed a petition for writ of certiorari on November 1, 2007. The Supreme Court granted certiorari on March 17, 2008. See, story titled "Supreme Court Grants Certiorari in FCC Fleeting Expletives Case" in TLJ Daily E-Mail Alert No. 1,732, March 18, 2008.

The US and FCC filed their brief [52 pages in PDF] with the Supreme Court on June 2, 2008. Respondents' briefs were filed on August 1.

PFF/CDT Brief. This amicus brief is filed by Adam Thierer of the PFF. The attorneys on the brief are John Morris and Sophia Cope of the CDT.

They urge the Supreme Court to "consider the larger context of the modern media environment, which starkly calls into question the FCC's underlying constitutional authority -- based on FCC v. Pacifica Foundation ... to regulate speech that, when communicated via any medium other than broadcast, is fully protected by the First Amendment."

The argue that "Pacifica is based on an archaic and static understanding of the facts about broadcast television. The state of media and technology today directly challenges this Court’s assumption ...". First, they argue that television no longer has the "pervasive" quality that informed the 1978 opinion.

Moreover, "Technology is transforming how society receives information and entertainment, and it is also transforming how First Amendment principles apply to content delivery."

"Parents have a variety of technological tools, including the V-Chip and digital video recorders (DVRs), with which to guide their children’s development and television viewing habits." (Footnote omitted.)

The PFF/CDT continue that "Beyond the V-Chip, many American homes now rely on a variety of alternative technologies and methods to filter or block unwanted broadcast programming. This is especially the case for 86% of U.S. households subscribing to cable or satellite television systems ... which offer more robust filtering and blocking capabilities than the V-Chip."

They add that "These technologies give parents the ability to accumulate libraries of preferred programming for their children and determine exactly when that programming will be viewed. Using these tools, households can tailor media consumption to their specific needs and values. Parents can amass libraries of programming they believe is educational, enriching, and appropriate for their children, and only allow them to view it when they feel it is appropriate -- in sharp contrast to the ``invasiveness´´ of broadcast television at the time Pacifica was decided in 1978."

This case is FCC, et al. v. Fox Television Stations, Inc., et al., Supreme Court of the U.S., Sup. Ct. No. 07-582, a petition for writ of certiorari to the U.S. Court of Appeals for the 2nd Circuit. See also, Supreme Court docket.

The House will not meet.

The Senate will meet at 11:00 AM in pro forma session only. These sessions prevent President Bush from making recess appointments.

10:00 AM. Deadline to submit comments to the Office of the U.S. Trade Representative (OUSTR) regarding its Special 301 Out of Cycle Review of Taiwan. This pertains to the adequacy and effectiveness of intellectual property protection and enforcement in Taiwan. See, notice in the Federal Register, July 21, 2008, Vol. 73, No. 140, at Pages 42378-42379.

TIME? The U.S. Patent and Trademark Office's (USPTO) Patent Public Advisory Committee (PPAC) will meet. Location:?

Day one of a two day conference hosted by the U.S. Patent and Trademark Office (USPTO) titled "13th Annual Independent Inventors Conference". See, USPTO release. Location: USPTO, Alexandria, VA.

Deadline to submit comments to the U.S. Patent and Trademark Office (USPTO) in response to its request for comments regarding information collected in Board of Patent Appeals and Interferences (BPAI) actions. See, notice in the Federal Register, June 9, 2008, Vol. 73, No. 111, at Pages 32559-32561.

Deadline to submit comments to the National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) regarding its SP 800-124 [48 pages in PDF] titled "Guidelines on Cell Phone and PDA Security (Draft)".

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Second Further Notice of Proposed Rulemaking regarding post-reconfiguration 800 MHz band plans for the Puerto Rico region. See, notice in the Federal Register, July 14, 2008, Vol. 73, No. 135, at Pages 40274-40276.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Further Notice of Proposed Rulemaking (FNPRM) regarding assignment and administration of ten digit telephone numbers for internet based Telecommunications Relay Services (TRS). This item is FCC 08-151 in CG Docket No. 03-123 and WC Docket No. 05-196. See, notice in the Federal Register, July 18, 2008, Vol. 73, No. 139, at Pages 41307-41311.

Day two of a two day conference hosted by the U.S. Patent and Trademark Office (USPTO) titled "13th Annual Independent Inventors Conference". See, USPTO release. Location: USPTO, Alexandria, VA.

Deadline to submit comments to the U.S. Patent and Trademark Office (USPTO) in response to its notice of proposed rulemaking (NPRM) regarding revising the Trademark Rules of Practice to set forth the requirements for signature of documents filed in the USPTO, recognition of representatives, and establishing and changing the correspondence address in trademark cases. See, notice in the Federal Register, June 12, 2008, Vol. 73, No. 114, at Pages 33345-33356.

Deadline to submit comments to the U.S. Patent and Trademark Office (USPTO) in response to its notice of proposed rulemaking (NPRM) regarding amending the Trademark Rules of Practice to clarify certain requirements for applications, intent to use documents, amendments to classification, requests to divide, and Post Registration practice. See, notice in the Federal Register, June 12, 2008, Vol. 73, No. 114, at Pages 33356-33372.

Extended deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its further notice of proposed rule making (FNPRM) regarding service rules for licensed fixed and mobile services, including Advanced Wireless Services (AWS), in the 1915-1920 MHz, 1995-2000 MHz, 2155-2175 MHz, and 2175-2180 MHz bands. This FNPRM is FCC FCC 08-158 WT Docket Nos. 07-195 and 04-356. See, original notice in the Federal Register, June 25, 2008, Vol. 73, No. 123, at Pages 35995-36013, and notice of extension in the Federal Register, July 14, 2008, Vol. 73, No. 135, at Pages 40271-40272.

6:00 - 9:15 PM. Part one of a two part continuing legal education (CLE) seminar hosted by the DC Bar Association titled "Software Patent Primer: Acquisition, Exploitation, Enforcement, and Defense". The speakers will be Martin Zoltick (Rothwell Figg), Stephen Parker (Watchstone P&D), Brian Rosenbloom (Rothwell Figg), and David Temeles (Bean Kinney & Korman). The price to attend ranges from $105 to $160. For more information, call 202-626-3488. See, notice. Location: DC Bar Conference Center, B-1 Level, 1250 H St., NW.

The Federal Communications Commission (FCC) will commence Auction 78, the AWS-1 and Broadband PCS auction. See, Public Notice (DA 08-1090) and notice in the Federal Register, May 29, 2008, Vol. 73, No. 104, at Pages 30919-30938.

9:00 AM - 12:15 PM. The DC Bar Association will host a panel discussion titled "Legal Cybersleuth's Guide to Investigative Research". The speakers will be Carole Levitt and Mark Rosch (both of Internet For Lawyers). The price to attend ranges from $109 to $149. For more information, contact 202-626-3463. See, notice. Location: DC Bar Conference Center, B-1 Level, 1250 H St., NW.

12:00 NOON - 1:30 PM. The Center for American Progress (CAP) will host an event titled "A Progressive Strategy Toward China". The speakers will be Stapleton Roy (Kissinger Associates), Harry Harding (George Washington University), Michael Schiffer (Stanley Foundation), Robert Sussman (CAP), and Nina Hachigian (CAP). See, notice. Location: CAP, 10th floor, 1333 H St., NW.

6:00 - 9:15 PM. Part two of a two part continuing legal education (CLE) seminar hosted by the DC Bar Association titled "Software Patent Primer: Acquisition, Exploitation, Enforcement, and Defense". The speakers will be Martin Zoltick (Rothwell Figg), Stephen Parker (Watchstone P&D), Brian Rosenbloom (Rothwell Figg), and David Temeles (Bean Kinney & Korman). The price to attend ranges from $105 to $160. For more information, call 202-626-3488. See, notice. Location: DC Bar Conference Center, B-1 Level, 1250 H St., NW.

10:00 AM - 4:00 PM. The U.S.-China Economic and Security Review Commission will hold a public meeting to work on its 2008 Annual Report to Congress. See, notice in the Federal Register, July 29, 2008, Vol. 73, No. 146, at Pages 43978-43979. Location: Conference Room 333, Hall of the States, 444 North Capitol St., NW.

6:00 PM. Extended end of settlement period for the Federal Communications Commission's (FCC) Auction 85, regarding LPTV and TV Translator Digital Companion Channels. See, Public Notice [PDF] of extension of settlement period, and notice in the Federal Register, August 7, 2008, Vol. 73, No. 153, at Page 46005.

Deadline to file Petitions to Participate and the accompanying $150 filing fee with the Copyright Royalty Judges regarding its proceeding to determine the Phase I distribution of 2004 and 2005 royalties collected under the cable statutory license. See, notice in the Federal Register, July 15, 2008, Vol. 73, No. 136, at Pages 40623-40624.

Deadline to file a Petition to Participate and the accompanying $150 filing fee with the Copyright Royalty Judges in connection with its proceeding to determine the Phase I distribution of 2004 and 2005 royalties collected under the cable statutory license. See, notice in the Federal Register, July 15, 2008, Vol. 73, No. 136, at Pages 40623-40624.

Deadline to submit comments to the National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) regarding its SP 800-41 Rev. 1 [43 pages in PDF] titled "Guidelines on Firewalls and Firewall Policy".

Deadline to submit initial comments to the Copyright Office in response to its notice of proposed rulemaking regarding the scope and application of the Section 115 compulsory license to make and distribute phonorecords of a musical work by means of digital phonorecord deliveries. See, notice in the Federal Register, July 16, 2008, Vol. 73, No. 137, at Page 40802-40813.

8/7. Jeffrey Schmidt, Director of the Federal Trade Commission's (FTC) Bureau of Competition, will leave the FTC. He will be a partner in the New York City office of the Linklaters law firm. David Wales, who is currently a Deputy Director, was named acting Director. See, FTC release. Schmidt, among other things, directed the FTC's efforts to block the merger of Whole Foods and Wild Oats. See, story titled "DC Circuit Reverses in FTC v. Whole Foods" in TLJ Daily E-Mail Alert No. 1,802, July 29, 2008.

8/7. The U.S. Patent and Trademark Office (USPTO) published a notice in the Federal Register "to clarify which patent-related regulations are currently in effect. The USPTO is identifying the applicability date of those regulatory provisions relating to applications containing patentably indistinct claims which are enjoined in Tafas v. Dudas, 530 F. Supp. 2d 786 (E.D. Va. 2008). Should the injunction be lifted, those regulations will apply only to applications filed on or after any new effective date that would be published by the USPTO in the future." See, Federal Register, August 7, 2008, Vol. 73, No. 153, at Pages 45999-46000. See also, April 1, 2008, opinion [26 pages in PDF] of the U.S. District Court (EDVa) in Tafas v. Dudas, D.C. No. 1:07cv1008 (JCC). And see, USPTO release.

8/7. Karen Fletcher entered a plea of guilty in U.S. District Court (EDPenn) to violation of 18 U.S.C. § 1462 in connection with her online publication of obscene materials. What is notable about this case is that the obscene material at issue did not involve pictures or videos. Rather is was text. The six count indictment lists six files that she published. Five had the file extension .txt. One had the file extension .doc. The statute covers "writing". However, most internet pornography and obscenity cases involve video or graphics. Section 1462 provides, in relevant part, that "Whoever ... knowingly uses ... interactive computer service ... for carriage in interstate or foreign commerce ... any obscene, lewd, lascivious, or filthy book, pamphlet, picture, motion-picture film, paper, letter, writing, print, or other matter of indecent character ... Shall be fined ... or imprisoned ...". See also, DOJ release.

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