3/23. The Supreme Court wrote in its Orders List [16 pages in PDF] that "The Solicitor General is invited to file briefs in" Level 3 Communications v. St. Louis, a petition for writ of certiorari to the 8th Circuit, and Sprint Telephony v. San Diego County, a petition to the 9th Circuit.

Both cases involve 47 U.S.C. § 253 challenges to local government regulation of wireless telecommunications facilities. The Supreme Court has not yet decided whether or not to grant certiorari in either case.

Section 253(a) provides that "No State or local statute or regulation, or other State or local legal requirement, may prohibit or have the effect of prohibiting the ability of any entity to provide any interstate or intrastate telecommunications service."

But, 47 U.S.C. § 332(c)(7) provides that "nothing in this chapter shall limit or affect the authority of a State or local government or instrumentality thereof over decisions regarding the placement, construction, and modification of personal wireless service facilities".

The 9th Circuit held in 2001 in City of Auburn v. Qwest, 260 F.3d 1160, that Section 253 preempts local regulations that "may" have the effect of prohibiting the provision of such services. The key word was "may". It is the word used by the Congress in Section 253.

In the opinions under review, the 8th Circuit and 9th Circuit both abandoned the Auburn standard. They held that Section 253 preempts local regulations only if they are shown to effectively prohibit the services.

The 9th Circuit wrote that "In context, it is clear that Congress' use of the word ``may´´ works in tandem with the negative modifier ``[n]o´´ to convey the meaning that ``state and local regulations shall not prohibit or have the effect of prohibiting telecommunications service.´´ Our previous interpretation of the word ``may´´ as meaning ``might possibly´´ is incorrect. We therefore overrule Auburn and join the Eighth Circuit in holding that ``a plaintiff suing a municipality under section 253(a) must show actual or effective prohibition, rather than the mere possibility of prohibition.´´"

Level 3. In 2004 Level 3 filed a complaint in the U.S. District Court (EDMo) against St. Louis alleging a facial violation of Section 253.

On September 4, 2008, the U.S. Court of Appeals (8thCir) issued its second opinion [PDF] in Level 3 v. St. Louis. This opinion is the subject of the pending petition for writ of certiorari. The Court of Appeals affirmed the District Court's summary judgment for St. Louis.

On February 5, 2007, the Court of Appeals issued its first opinion [10 pages in PDF] in Level 3 v. St. Louis. That opinion is also reported at 477 F.3d 528. See also, story titled "8th Circuit Addresses Sections 253 & 1983 in Rights of Way Case" in TLJ Daily E-Mail Alert No. 1,533, February 6, 2007.

This case is Level 3 Communications LLC v. City of St. Louis, Missouri, Supreme Court of the U.S., Sup. Ct. No. 08-626, a petition for writ of certiorari to the U.S. Court of Appeals for the 8th Circuit, App. Ct. 07-3509. The Court of Appeals heard an appeal from the U.S. District Court for the Eastern District of Missouri. In the first appeal, the case numbers were App. Ct. Nos. 06-1398 and 06-1459. See also, Supreme Court docket.

Sprint. Sprint filed a complaint in the U.S. District Court (SDCal) against the County of San Diego alleging a facial violation of Section 253.

On September 11, 2008, the U.S. Court of Appeals (9thCir) issued its en banc opinion [17 pages in PDF], reversing the March 13, 2007, opinion of a three judge panel, which affirmed the judgment of the District Court that the wireless zoning ordinance in question is preempted by 47 U.S.C. § 253, but that this violation creates no private right of action for damages under 18 U.S.C. § 1983. (The en banc opinion affirmed the three judge panel on the holding that violation of § 253 creates no action under § 1983).

See, story titled "9th Circuit Holds That Wireless Zoning Ordinance Violates § 253(a), But This Creates No Private Right Of Action Under § 1983" in TLJ Daily E-Mail Alert No. 1,551, March 13, 2007.

This case is Sprint Telephony PCS v. County of San Diego, et al., Supreme Court of the U.S., Sup. Ct. No. 08-759, a petition for writ of certiorari to the U.S. Court of Appeals for the 9th Circuit, App. Ct. Nos. 05-56076 and 05-56435. The Court of Appeals heard appeals from the U.S. District Court for the Southern District of California, D.C. No. CV-03-1398-BTM, Judge Barry Ted Moskowitz presiding. See also, Supreme Court docket.

3/23. The Supreme Court denied certiorari in Dell Marketing v. New Mexico Taxation and Revenue Department. See, Orders List [16 pages in PDF].

This lets stand the June 3, 2008, opinion of the Court of Appeals of New Mexico. The Supreme Court of New Mexico denied a petition for writ of certiorari to it on July 18, 2008.

New Mexico published the opinion in WordPerfect format.

The Supreme Court of the U.S. held in 1992 in Quill v. North Dakota, 504 U.S. 298, that state and local taxing authorities are barred under the Commerce Clause from requiring remote sellers without a substantial nexus to the taxing jurisdiction to collect sales taxes for sales to persons in the jurisdiction.

New Mexico and other states misapply the Quill substantial nexus requirement in order to collect tax revenues from out of state companies that sell via the internet and by other direct means.

Dell is based in the state of Texas. It has no offices, property, stores, employees or sales agents in the state of New Mexico. It sells directly to consumers via its internet sales web site, and catalogue direct mail.

In the present case, the New Mexico court held that Dell has a substantial nexus to New Mexico.

This substantial nexus assertion is based on Dell's contract with a Texas based Delaware corporation that provides repair services for customers who purchase Dell computers. This company provides in home repairs.

This case is Dell Marketing L.P., fka Dell Catalog Sales L.P. v. New Mexico Taxation and Revenue Department, Supreme Court of the U.S., Sup. Ct. No. 08-770, a petition for writ of certiorari to the Court of Appeals of New Mexico, No. 26,843. See also, Supreme Court docket.

3/19. TomTom filed a complaint in the U.S. District Court (EDVa) against Microsoft alleging patent infringement.

On February 25, 2009, Microsoft filed a complaint [PDF] in the U.S. District Court (WDWash) against TomTom NV and Tom Tom, Inc., alleging patent infringement. The eight count complaint alleges infringement of the following eight patents: U.S. Patent Nos. 6,175,789, 7,054,745, 6,704,032, 7,117,286, 6,202,008, 5,579,517, 5,758,352, and 6,256,642. See, Microsoft release and release.

Microsoft also filed a complaint [PDF] with the U.S. International Trade Commission (USITC) alleging importation into the U.S. of products that infringe Microsoft's patents in violation of 19 U.S.C. § 1337.

TomTom makes portable GPS devices, and other electronic devices, and software included therein.

At issue is whether Linux infringes Microsoft patents.

The Open Invention Network (OIN) announced in a release that TomTom signed the OIN license agreement on March 23, 2009.

The OIN stated that "Patents owned by Open Invention Network are available royalty-free to any company, institution or individual that agrees not to assert its patents against the Linux System."

3/20. The Federal Communications Commission (FCC) released a Report and Order [45 pages in PDF] regarding the Medical Device Radiocommunication Service (MedRadio Service).

FCC Chairman Michael Copps wrote in his statement that "medical researchers continue to develop extraordinary bodyworn and implanted devices that are used to treat a variety of health conditions with less invasive patient treatment options. Today's order takes us another major step forward with the establishment of a new Medical Device Radiocommunication Service, which incorporates the existing Medical Implant Communications Service band with additional spectrum for advanced wireless medical radiocommunication devices used for diagnostic and therapeutic purposes."

Copps added that "Among other things, these devices are used to control heart rhythms to prevent attacks, mitigate the tremors of neurological patients, and control the delivery of insulin to patients with diabetes."

Commissioner Robert McDowell wrote in his statement in support that this order "provides five megahertz of contiguous spectrum to power advanced diagnostic and therapeutic wireless devices", and will result in further NPRMs.

The FCC adopted this item on March 19, 2009. It is FCC 09-23 in ET Docket No. 06-135, RM-11271, ET Docket No. 05-213, and ET Docket No. 03-92

The FCC also released one Notice of Proposed Rulemaking [PDF] in its proceeding titled "In the Matter of Amendment of Parts 2 and 95 of the Commission’s Rules to Provide Additional Spectrum for the Medical Device Radiocommunication Service in the 413-457 MHz band".

This NPRM requests public comments "on the feasibility of allowing up to 24 megahertz of spectrum in the 413-457 MHz band to be used on a secondary basis under" the MedRadio Service in Part 95 of the FCC's rules.

The FCC adopted this item on March 17, 2009. It is FCC 09-20 in ET Docket No. 09-36. Initial comments will be due within 90 days of publication of a notice in the Federal Register. Reply comments will be due within 120 days of such publication. As of the March 25, 2009, issue of the Federal Register, this publication had not yet taken place.

3/24. The Senate confirmed Gary Locke to be Secretary of Commerce. See, Congressional Record, March 24, 2009, at Page S3737.

3/23. Yahoo hired Elisa Steele as Chief Marketing Officer. See, Yahoo release.

3/24. The House passed HR 1617 [LOC | WW], the "Department of Homeland Security Component Privacy Officer Act of 2009", by a vote of 412-3. See, Roll Call No. 147.

3/24. The National Telecommunications and Information Administration (NTIA) issued a release regarding the its DTV converter box program and expired coupons.

3/24. The Federal Communications Commission (FCC) released a Public Notice [4 pages in PDF] that establishes procedures for providing written or oral comments on the FCC's consultative role in implementing the broadband grants and loans provisions of HR 1, the huge spending bill enacted in February. This PN is DA 09-668 in GN Docket No. 09-40. Comments are due by April 13, 2009.

3/24. The Technology Policy Institute (TPI) released a paper [6 pages in PDF] titled "Measuring the Effectiveness of the Broadband Stimulus Plan". The author is the TPI's Scott Wallsten.

3/24. The Federal Communications Commission (FCC) released a Second Report and Order [19 pages in PDF] in its proceeding titled "In the Matter of Assessment and Collection of Regulatory Fees for Fiscal Year 2008". This item adopts a new methodology for calculating regulatory fees from international submarine cable operators. The FCC adopted this item on March 17, 2009. It is FCC 09-21 in MD Docket No. 08-65.

This issue contains the following items:
 • Supreme Court Requests OSG Briefs in Section 253 Cases
 • Supreme Court Denies Cert in Dell v. New Mexico
 • Microsoft and TomTom Both File Patent Infringement Actions
 • FCC Releases a R&O and a NPRM Regarding MedRadio Service

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

The Senate will meet at 9:30 AM. It will resume consideration of the motion to proceed to HR 1388 [LOC | WW], the "Generations Invigorating Volunteerism and Education Act".

9:00 AM - 5:00 PM. The National Institute of Standards and Technology's (NIST) Office of Law Enforcement Standards' (OLES) will hold a meeting to bring Project 25 Compliance Assessment Program stakeholders together to discuss what the process will be to assess software based test tools for the Project 25 Compliance Assessment Program. See, notice in the Federal Register, February 17, 2009, Vol. 74, No. 30, at Pages 7397-7398. This meeting will occur via teleconference and at the National Telecommunications and Information Administration's (NTIA) Institute for Telecommunication Sciences (ITS) in Boulder, Colorado.

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. See, notice. The SJC will webcast this event. Location: Room 216, Hart Building.

10:00 AM. The House Science Committee (HSC) will meet to mark up two bills, including HR 1850 [LOC | WW], the "Electronic Waste Research and Development Act". Location: Room 2318, Rayburn Building.

10:00 AM. The Senate Homeland Security and Governmental Affairs Committee (SHSGAC) will hold a hearing on the nomination of Jane Lute to be Deputy Secretary of the Department of Homeland Security (DHS). See, notice. Location: Room 342, Dirksen Building.

Deadline to submit comments to the Federal Communications Commission (FCC) regarding the development of a rural broadband strategy, as required by the 2008 farm bill. This proceeding is GN Docket No. 09-29. See, FCC public notice, DA 09-561.

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

9:30 AM. The Senate Judiciary Committee (SJC) may hold an executive business meeting. The agenda includes consideration Tony West to be Assistant Attorney General (AAG) in charge of the Department of Justice's (DOJ) Civil Division, Lanny Breuer to be an AAG in charge of the Criminal Division, and Christine Varney to be AAG in charge of the Antitrust Division. The agenda also includes consideration of S 515 [LOC | WW], the "Patent Reform Act of 2009". The SJC rarely follows is agendas. See, notice. Location: Room 226, Dirksen Building.

10:00 AM. The House Education and Labor Committee (HELC) will hold a hearing titled "The Economic and Employment Impact of the Arts and Music Industry". Location: Room 2175, Rayburn Building.

10:00 AM. The House Commerce Committee's (HCC) Subcommittee on Communications, Technology, and the Internet will hold a hearing titled "Oversight of the Digital Television Transition".
The witnesses will be Anna Gomez (acting head of the NTIA), Michael Copps (FCC Chairman), Mark Lloyd (Leadership Conference on Civil Rights), Peter Morrill (Idaho Public Television), Robert Prather (Gray Television, Inc.), Gary Severson (Wal-Mart), Gary Shapiro (CEA), Christopher Wood (Univision). See, notice. Location: Room 2322, Rayburn Building.

6:00 - 8:15 PM. The Federal Communications Bar Association's (FCBA) Wireline Practice Committee will host an event titled "CLE Seminar on Dial N for Numbering: Understanding the Role of Numbers and Numbering Policy in Modern Communications". See, notice and agenda. Location: Sidley Austin, 1501 K St., NW.

The House will not meet.

Deadline to submit reply comments to the Federal Communications Commission (FCC) to assist it in preparing a report to the Congress on the status of competition in markets for the delivery of video programming. The FCC engaged in the legal fiction of adopting a Notice of Inquiry (NOI) on November 27, 2007. It did not release the text [41 pages in PDF] of a NOI until January 16, 2009. It is FCC 07-207 in MB Docket 07-269. This NOI requests comments regarding "changes in the marketplace between 2006 and 2007". See, notice in the Federal Register, February 11, 2009, Volume 74, No. 27, at Pages 6875-6882.

Deadline to submit comments to the National Institute of Standards and Technology's (NIST) Computer Security Division regarding its draft [209 pages in PDF] of Special Publication 800-53, Revision 3, titled "Recommended Security Controls for Federal Information Systems and Organizations".

11:00 AM - 12:00 NOON. The Federal Communications Commission's (FCC) Advisory Committee for the 2011 World Radiocommunication Conference (WRC-11 Advisory Committee) will meet. See, FCC notice [PDF] and notice in the Federal Register, February 12, 2009, Vol. 74, No. 28, at Pages 7046-7047. Location: FCC, Commission Meeting Room (TW-C305), 445 12th St., SW.

2:00 PM. The House Judiciary Committee's (HJC) Subcommittee on Commercial and Administrative Law will hold a hearing titled "VoIP -- Who Has Jurisdiction to Tax It?". See, notice. This event will be webcast by the HJC. Location: Room 2141, Rayburn Building.

POSTPONED. 2:00 - 3:30 PM. The Department of Justice's (DOJ) Antitrust Division will host a seminar conducted by Sergei Koulayev (Columbia University) on his paper [PDF] titled "Vertical integration in sequential negotiations". This is a game theoretical paper that also addresses video programming and the News Corp. Directv merger. Location: Bicentennial Building, 600 E St., NW.

Deadline for the Office of the U.S. Trade Representative (OUSTR) to submit to the President and Congress its annual National Trade Estimate Report on Foreign Trade Barriers (NTE). This report is required by 19 U.S.C. § 2241.

Deadline for the Office of the U.S. Trade Representative (OUSTR) to conclude its review of the operation, effectiveness, and implementation of and compliance with trade agreements regarding telecommunications products and services, including the World Trade Organization (WTO) General Agreement on Trade in Services, the North American Free Trade Agreement (NAFTA), free trade agreements (FTAs) with Australia, Bahrain, Chile, Morocco, and Singapore, the Dominican Republic-Central America-United States FTAs. See, notice in the Federal Register, November 25, 2008, Vol. 73, No. 228, at Page 71707-71708.

Deadline to submit comments to the Bureau of Industry and Security (BIS) regarding its various mandates for information collections, notifications, reports, and exchanges. The BIS estimates that these mandates affect 1,427,450 persons or entities. The BIS also asserts that regulated persons and entities can comply with various mandates in a little as "5 seconds". See, notice in the Federal Register, January 30, 2009, Vol. 74, No. 19, at Pages 5637-5638

Planned implementation date of the Copyright Office's (CO) new fees for registration of claims, special services and Licensing Division services. See, notice in the Federal Register, October 14, 2008, Vol. 73, No. 199, at Pages 60658-60662. See also, story titled "Copyright Office Proposes to Raise Registration Fees" in TLJ Daily E-Mail Alert No. 1,843, October 15, 2008.

Day one of a three day event hosted by the National Cable and Telecommunications Association (NCTA) titled "Cable Show". Location: Washington Convention Center.

Day one of a three day event hosted by the American Intellectual Property Law Association (AIPLA) titled "Legal Secretaries and Administrators Conference". See, conference brochure [PDF]. Location: Westin Alexandria Hotel, Alexandria, VA.

Deadline to submit reply comments to the Federal Communications Commission (FCC) regarding competitive bidding procedures for Auction 79. This is proceeding is AU Docket No. 09-21 (122 FM broadcast construction permits). See, February 27, 2009, Public Notice (DA 09-422), and notice in the Federal Register, March 11, 2009, Vol. 74, No. 46, at Pages 10578-10581.

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