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April 8, 2009, Alert No. 1,923.
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Supreme Court Denies Cert in Cygnus v. Telesys

4/6. The Supreme Court denied certiorari in Cygnus Telecommunications Technology v. Telesys Communications, a patent infringement case involving computerized telephone callback systems. See, Orders List [9 pages in PDF] at page 2.

This lets stand the August 19, 2008, opinion [32 pages in PDF] of the U.S. Court of Appeals (FedCir). See, story titled "Circuit Affirms in Cygnus Telecommunications Patent Case" in TLJ Daily E-Mail Alert No. 1,815, August 19, 2009.

This case is Cygnus Telecommunications Technology LLC v. Telesys Communications LLC, Supreme Court of the U.S., Sup. Ct. No. 08-955, a petition for writ of certiorari to the U.S. Court of Appeals for the Federal Circuit, App. Ct. Nos. 2007-1328, 2007-1329, 2007-1330, 2007-1331, 2007-1332, 2007-1333, 2007-1354, 2007-1361, and 2008-1023. The Court of Appeals heard an appeal from the U.S. District Court for the Northern District of California. See also, Supreme Court docket.

9th Circuit Denies Rehearing in Fones4All v. FCC

4/7. The U.S. Court of Appeals (9thCir) issued an opinion [4 pages in PDF] in Fones4All v. FCC, denying Fones4All's petition for rehearing. Also, the full Court of Appeals denied the petition for rehearing en banc. This opinion addresses the issue of exhaustion of administrative remedies. Fones4All sought to challenge the FCC practice of backdating orders.

The three judge panel previously denied Fones4All's petition for review of a final order of the FCC. See, December 16, 2008, panel opinion [19 pages in PDF], which is also reported at 550 F.3d 811, and story titled "9th Circuit Rejects Challenge to Backdated FCC Forbearance Denial" in TLJ Daily E-Mail Alert No. 1,875, December 17, 2008.

The FCC issued an order denying Fones4All's petition for forbearance from the application of FCC regulations that removed requirements that incumbent local exchange carriers (ILECs) provide unbundled services to competitive local exchange carriers (CLECs), such as Fones4All.

However, this case is not about unbundling requirements. The Court of Appeals let stand the FCC's practice of adopting but not releasing orders, even when there is a statute that imposes a deadline, and a consequence for failure to meet that deadline. This FCC procedure is also know as backdating.

This case is Fones4All v. FCC and USA, U.S. Court of Appeals for the 9th Circuit, App. Ct. No. 06-75388. Judge Mary Schroeder wrote the opinion of the Court of Appeals, in which Judges Johnnie Rawlinson and Brian Sandoval (USDC/DNev) joined.

Court of Appeals Rules in Case Regarding Passports for Residents of Taiwan

4/7. The U.S. Court of Appeals (DCCir) issued its opinion [11 pages in PDF] in Roger Lin v. USA, a case regarding whether residents of Taiwan have a right to U.S. passports. The Court of Appeals affirmed the judgment of the District Court, which held that the political question doctrine bars this action.

Roger Lin and the other plaintiffs are residents of Taiwan. They sought U.S. passports from the American Institute in Taiwan (AIT). The Taiwan Relations Act of 1979 (TRA), which is codified at 22 U.S.C. 3301 et seq., designates the AIT as the U.S. representative for relations with Taiwan. It provides that the AIT "processes visa applications from foreign nationals", but is silent as to passport applications from residents of Taiwan. The AIT refused to process the passport applications of Lin and others.

Lin and others filed a complaint in the U.S. District Court (DC) against the U.S. alleging that they are non-citizen U.S. nationals entitled to passports, as well as various Constitutional rights.

The District Court dismissed the case for lack of subject matter jurisdiction under the political question doctrine. Lin and others brought the present appeal. The Court of Appeals affirmed the judgment of the District Court.

The federal courts have held that the political question doctrine is a Constitutional doctrine. However, it is not in the Constitution.

The Supreme Court expounded on this doctrine in its 1962 opinion in Baker v. Carr, 369 U.S. 186, and its progeny. In Baker v. Carr, the Supreme Court held that the doctrine does not bar the judiciary from deciding state legislative apportionment cases.

In its June 12, 2008, opinion in Boumediene v. Bush, the Supreme Court held, among other things, that the doctrine did not bar the judiciary from deciding whether Lakhdar Boumediene, a naturalized citizen of Bosnia, could assert a Constitutional right (suspension of habeas corpus) to challenge his detention at Guantanamo Bay.

The Supreme Court held that 7 of the Military Commissions Act (MCA), which removes the jurisdiction of courts to consider habeas actions by enemy combatants, is unconstitutional.

Application of Constitutional rights to non-citizens turns on U.S. sovereignty over territory.

Sovereignty over Guantanamo Bay, like sovereignty over Taiwan, is not a matter of universal agreement. The U.S. has contended, since long before the election of former President Bush, and the terrorist attacks of September 11, 2001, that Guantanamo Bay is not within the sovereign control of the U.S.; rather, Cuba holds sovereignty, while the U.S. and Cuba have entered into a lease agreement that provides that the U.S. has jurisdiction and control over Guantanamo Bay.

As for Taiwan, the Court of Appeals wrote that the executive branch of the U.S. "has gone out of its way to avoid making that determination, creating an information deficit for determining the status of the people on Taiwan".

The Court of Appeals reasoned that whether Lin and other Taiwan residents have U.S. rights turns on whether the U.S. has sovereignty over Taiwan. Lin argued that the U.S. does, under the September 8, 1951, San Francisco Peace Treaty (SFPT), in which Japan renounced all right, title and claim to Taiwan, and in which the U.S. was designated "the principal occupying Power". Lin argued that this is a case that calls for interpretation of a treaty (SFPT) and a statute (TRA), which are judicial functions.

The Court of Appeals wrote that sovereignty, in the present case, is a political task, left to the executive branch, and is not justiciable.

In contrast, in Boumediene v. Bush, the Supreme Court did not find the political question doctrine a bar to reviewing and rejecting the executive branch's conclusions regarding sovereignty over Guantanamo Bay.

The Court of Appeals also stated that its holding in the present case is not inconsistent with the Supreme Court's holding in Boumediene v. Bush.

The Court of Appeals distinguished the two cases with a discussion of de jure and de facto sovereignty. It wrote that the present case involves de jure sovereignty, while the Guantanamo Bay case involved de facto sovereignty.

The Court of Appeals did not note that residents of Taiwan are involved in the export of computer chips, DRAM products, networking equipment, and other electronic, communications, and information technology products, while detainees at Guantanamo Bay are involved in the export of terrorism.

This case is Roger Lin v. USA, U.S. Court of Appeals for the District of Columbia, App. Ct. No. 08-5078, an appeal from the U.S. District Court for the District of Columbia, D.C. No. 1:06-cv-01825. Judge Brown wrote the opinion of the Court of Appeals, in which Judges Griffith and Henderson joined.

11th Circuit Rules in Vega v. T-Mobile

4/7. The U.S. Court of Appeals (11thCir) issued its opinion [47 pages in PDF] in Vega v. T-Mobile, vacating the District Court's order certifying the class, and remanding with instructions that the plaintiff proceed individually.

Vega was briefly a sales employee of T-Mobile. He filed a complaint in state court in Florida against T-Mobile alleging unpaid wages and unjust enrichment in connection with his assertions regarding T-Mobile's policy for payment of commissions on the sale of prepaid cellular telephone accounts.

He also sought class action status to represent other T-Mobile sales employees. T-Mobile removed the action to the U.S. District Court (SDFl). The District Court certified the class. This interlocutory appeal followed. The Court of Appeals vacated.

This case is Henry Vega v. T-Mobile USA, Inc., U.S. Court of Appeals for the 11th Circuit, App. Ct. No. 07-13864, an appeal from the U.S. District Court for the Southern District of Florida, D.C. No. 06-20554-CV-MGC. Judge Tjoflat wrote the opinion of the Court of Appeals, in which Judges Marcus and Roger Vinson (USDC/NDFl).

CRJs Seek More Comments On Regs For Filing Notice of Use and the Delivery of Sound Recordings Under 114 & 112

4/8. The Copyright Royalty Judges (CRJ) published a notice in the Federal Register that announces, describes and sets comment deadlines for a Notice of Inquiry (NOI) regarding "the costs of census versus sample reporting to assist the Judges in the revision of the interim regulations for filing notices of use and the delivery of records of use of sound recordings under two statutory licenses of the Copyright Act".

See, notice in the Federal Register, April 8, 2009, Vol. 74, No. 66, at Pages 15901-15904.

Initial comments are due by May 26, 2009. Reply comments are due by June 8, 2009.

This follows its December 30, 2008, Notice of Proposed Rulemaking (NPRM). See, notice in the Federal Register December 30, 2008, Vol. 73, No. 250, at Pages 79727-79734. See also, the CRJ's web page with hyperlinks to the comments submitted in response to the NPRM.

More News

4/8.The Federal Trade Commission (FTC) announced that it will hold the final hearing in its series of hearings titled "Markets for Intellectual Property" on May 4 and 5, 2009, at  UC Berkeley, in Berkeley, California. See, FTC release.

4/7. The Federal Trade Commission (FTC) and others announced that they will host a one day event on April 29, 2009, in New York City, with sessions titled "Protecting Personal Information: Best Practices for Business" and "Fighting Fraud with the Red Flags Rule: Practical Guidance for Business". Panels members have already been named. The sponsors include the FTC, New York State Office of Cyber Security and Critical Infrastructure Coordination, New York State Consumer Protection Board, New York City Department of Consumer Affairs, Better Business Bureau Serving Metropolitan New York, International Association of Privacy Professionals, and Fordham Law School's Center on Law and Information Policy. See, FTC release.

In This Issue

This issue contains the following items:
  Supreme Court Denies Cert in Cygnus v. Telesys
  9th Circuit Denies Rehearing in Fones4All v. FCC
  Court of Appeals Rules in Case Regarding Passports for Residents of Taiwan
  11th Circuit Rules in Vega v. T-Mobile
  CRJs Seek More Comments On Regs For Filing Notice of Use and the Delivery of Sound Recordings Under 114 & 112

Washington Tech Calendar
New items are highlighted in red.
Thursday, April 9

The House will not meet the week of April 6-10 or 13-17. It will next meet at 2:00 PM on April 21, 2009. See, HConRes 93.

The Senate will not meet the week of April 6-10 or 13-17. It will next meet on April 20, 2009, at 2:00 PM, at which time it may begin consideration of S 386 [LOC | WW], the "Fraud Enforcement and Recovery Act".

12:00 NOON - 1:30 PM. The National Economists Club (NEC) will host a lunch titled "Securities Markets and Regulatory Reform". The speaker will be Eric Sirri, Director of the Securities and Exchange Commission's (SEC) Division of Market Regulation. Location: 2nd floor, Chinatown Garden Restaurant, 618 H St., NW.

12:15 - 1:45 PM. The New America Foundation (NAF) will host a book discussion. The speaker will be J.P. Singh (Georgetown Univ.), author of the book [Amazon] titled "Negotiation and the Global Information Economy". See, notice and registration page. Location: NAF, Suite 400, 1899 L St., NW.

Friday, April 10

Good Friday.

Extended deadline for Cox Enterprises and others to file with the Federal Communications Commission's (FCC) Media Bureau amendments to pending waiver requests or renewal applications or to file requests for permanent waivers of the newspaper/broadcast cross-ownership rule. See, February 6, 2009, order [PDF].

Deadline to submit initial comments to the The Federal Communications Commission (FCC) in response to its Public Notice [4 pages in PDF] regarding its implementation of Subsections 103(b) and 103(c)(1) of the Broadband Data Improvement Act (BDIA). President Bush signed S 1492 [LOC | WW], the BDIA, into law on October 10, 2008. It is now Public Law No. 110-385.

Sunday, April 12

Easter.

Monday, April 13

The House will not meet the week of April 13-17.

9:00 AM - 12:30 PM. The American Enterprise Institute (AEI) will host an event titled "Promoting Peace and Prosperity in Asia: The Taiwan Relations Act at Thirty". The speakers will be C.J. Chen (former foreign minister of the Republic of China), Arthur Brooks (AEI), John Bolton (AEI), Paul Wolfowitz (AEI), Danielle Pletka (AEI), Louisa Greve (National Endowment for Democracy), Christopher Griffin (office of Sen. Joe Lieberman (D-CT), Rupert Hammond-Chambers (U.S.-Taiwan Business Council), and Dan Blumenthal (AEI). See, notice. Location: AEI, 12t floor, 1150 17th St., NW.

Deadline to submit comments to the National Telecommunications and Information Administration (NTIA) and the Rural Utilities Service (RUS) regarding the broadband grant programs created by HR 1 [LOC | WW], the huge spending bill enacted in February, which programs are also known as the Broadband Technology Opportunities Program (BTOP). See, notice in the Federal Register, March 12, 2009, Vol. 74, No. 47, at Pages 10716-10721, and notice in the Federal Register, March 18, 2009, Vol. 74, No. 51, at Page 11531.

Deadline to submit comments to the Federal Communications Commission (FCC) in response to its Public Notice [4 pages in PDF] regarding 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.

Tuesday, April 14

12:00 NOON - 2:00 PM. The DC Bar Association will host a closed event titled "Posters, Pictures and Portraits: Hot Issues Involving Copyrights in Images". The speakers will include James Astrachan (Astrachan Gunst & Thomas) and Victor Perlman (American Society of Media Photographers). The price to attend ranges from $25 to $50. See, notice. For more information, call 202-626-3463. Location: D.C. Bar Conference Center, B-1 Level, 1250 H St., NW.

2:00 - 3:30 PM. The Department of Justice's (DOJ) Antitrust Division will host a seminar conducted by Catherine de Fontenay (University of Melbourne) on her paper, co-authored with Joshua Gans, titled "Bilateral Bargaining with Externalities". This is a game theoretical paper about bargaining between agents in a network, including patent holders' negotiations with several potential licensors. To request permission to attend, contact Patrick Greenlee at 202-307-3745 or atr dot eag at usdoj dot gov. Location: Bicentennial Building, 600 E St., NW.

Wednesday, April 15

No events listed.

Thursday, April 16

No events listed.

Friday, April 17

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in NCTA v. FCC, App. Ct. No. 08-1016 and 08-1017. Judges Tatel, Garland and Silberman will preside. This is the challenge by the NCTA and apartment owners to the FCC's MDU order, that asserts regulatory authority over the content of contracts negotiated by owners of multiple dwelling units (MDUs), such as apartment buildings, and cable companies. The FCC asserted authority under Subsection 628(b) of the Communications Act, which is codified at 47 U.S.C. 548(b). The order, adopted on October 31, 2007, is FCC 07-189 in MB Docket No. 07-51. See, stories titled "FCC Adopts R&O Abrogating Contracts Between MDU Owners and Cable Companies" and "Commentary on FCC's R&O Regarding MDU Owners and Cable Companies" in TLJ Daily E-Mail Alert No. 1,669, November 5, 2007. See, FCC's brief [68 pages in PDF]. Location: Courtroom 11, 333 Constitution Ave.

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in Verizon Washington DC v. Communications Workers of America, App. Ct. No. 08-7092. Judges Ginsburg, Rogers and Kavanaugh will preside. Location: 333 Constitution Ave.

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in Alvin Lou Media, Inc. v. FCC, App. Ct. No. 08-1067. Judges Ginsburg, Rogers and Kavanaugh will preside. See, FCC's brief [80 pages in PDF]. Location: 333 Constitution Ave.

Deadline to submit initial comments to the The Federal Communications Commission (FCC) in response to its Public Notice [4 pages in PDF] regarding its implementation of Subsections 103(b) and 103(c)(1) of the Broadband Data Improvement Act (BDIA). President Bush signed S 1492 [LOC | WW], the BDIA, into law on October 10, 2008. It is now Public Law No. 110-385.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its notice of proposed rulemaking [25 pages in PDF] regarding extending until June 30, 2010, the freeze of Part 36 category relationships and jurisdictional cost allocation factors used in jurisdictional separations. This freeze is set to expire on June 30, 2009. This NPRM is FCC 09-24 in CC Docket No. 80-286. See, notice in the Federal Register, April 3, 2009, Vol. 74, No. 63, at Pages 15236-15239.

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