8/11. The U.S. Court of Appeals (2ndCir) issued its opinion [37 pages in PDF] in Broder v. Cablevision, a class action case regarding the cable uniform rate structure requirement. The Court of Appeals affirmed the District Court's holding that it has removal jurisdiction, and its dismissal for failure to state a claim.

Cablevision Systems Corporation and CSC Holdings, Inc. (Cablevision) provide cable television services. Cablevision offered a discounted winter rate running from November through April to certain customers to enable the owners of summer homes to maintain their cable service at a substantially reduced rate during the winter season when customers use their summer residences only sporadically. Cablesvision informed its summer home customers of this rate when they asked to have their service cut off for winter months. It did not send written notice of this rate to all of its customers.

Gerald Broder is a class action plaintiff. He is a customer of Cablevision, with a summer residence, who did not know of the winter rate.

Broder filed a complaint in state court in New York against Cablevision alleging only state law causes of action: breach of contract, breach of the implied covenant of good faith and fair dealing, violations of Section 349 of the New York General Business Law (GBL), common law fraud, and unjust enrichment.

However, these causes of action rest upon allegations of violation of the federal uniform rate structure requirement, which is codified at 47 U.S.C. § 543(d), and the cable service disclosure requirement of Section 224-a(4) of the New York Public Service Law.

Cablevision removed the action to the U.S. District Court (SDNY), based upon federal question jurisdiction.

Broder moved pursuant to 28 U.S.C. § 1447(c) to remand the case to state court for lack of subject matter jurisdiction. The District Court denied this motion. Cablevision moved to dismiss for failure to state a claim upon which relief can be granted. The District Court granted this motion.

This appeal followed. The Court of Appeals affirmed.

First, the Court of Appeals held while Broder carefully drafted his complaint to allege state law violations, some of the causes of action actually plead both state and federal law violations. It reasoned that "What is styled as a single breach-of-contract claim actually has two distinct parts: (1) a claim that Cablevision breached one provision of applicable law, incorporated by reference into the contract, ``by failing to provide [Broder and the class members] with the uniform rates required by 47 U.S.C. § 543(d),´´ and (2) a claim that Cablevision breached another provision of applicable law, also incorporated by reference into the contract, ``by failing to provide them with the notice of the Winter Season rates as required under PSL § 224-a(4).´´" (Brackets in original.)

The Court of Appeals also wrote that "Similarly, what is styled as one claim for violation of GBL § 349 is actually two: (1) a claim that Cablevision violated 47 U.S.C. § 543(d) and thereby violated GBL § 349, and (2) a claim that Cablevision violated PSL § 224-a(4) and thereby violated GBL § 349."

It added that "Any doubt that Broder brings distinct claims based on 47 U.S.C. § 543(d) is dispelled by his request for a declaratory judgment establishing that Cablevision’s actions violated, inter alia, 47 U.S.C. § 543(d)."

It concluded that "The claims that invoke 47 U.S.C. § 543(d) are thus separate claims" for removal purposes, and since this case satisfies the three prong test announced by the Supreme Court on June 13, 2005, in Grable & Sons Metal Products, Inc., v. Darue Engineering & Manufacturing [16 pages in PDF], denial of Broder's motion to remand to the state court was proper.

Second, the Court of Appeals held that neither § 543(d) of the Communications Act, nor the cable service disclosure requirement of Section 224-a(4) of the New York Public Service Law, create a private right of action, and therefore, dismissal for failure to state a claim was proper.

The Court of Appeals added that "This conclusion does not mean that Broder and the putative class he seeks to represent are without a forum for their claims. It means only that they are without a judicial forum. As the district court noted, both Congress and the New York State legislature have provided administrative agency oversight for the sorts of claims asserted here. Broder and the other members of the putative class may seek relief from the New York Public Service Commission or the Federal Communications Commission."

This case is Gerald Broder v. Cablevision Systems Corporation and CSC Holdings, Inc., U.S. Court of Appeals for the 2nd Circuit, App. Ct. No. 04-4932-cv, an appeal from the U.S. District Court for the Southern District of New York, Judge Dennis Chin presiding. Judge Leonard Sand wrote the opinion of the Court of Appeals, in which Judges Cabranes and Raggi joined.

8/15. The Federal Communications Commission (FCC) fined Telecom Management, Inc. (TMI) $280,000. The FCC alleges that TMI failed to pay taxes owed to the FCC. Specifically, the FCC adopted and released a document [9 pages in PDF] titled "Notice of Apparent Liability for Forfeiture" (NAL) that alleges failure to pay Universal Service Fund (USF) taxes, and concludes that TMI is "apparently liable for a total forfeiture of $280,000". See also, FCC release [PDF].

TMI states in its web site that its is a management consulting firm, and that is does not sell or broker telecommunications services. In contrast, the FCC states in the NAL that TMI is a "communications carrier", and that it resells "interstate, interexchange services purchased from Global Crossing Bandwidth, Inc."

47 U.S.C. § 254(d) authorizes the FCC to tax "Every telecommunications carrier that provides interstate telecommunications services" in order to fund its USF subsidy programs.

The NAL also asserts that TMI failed to pay regulatory fees required of interstate telephone service providers.

The NAL asserts that "TMI had an unpaid USF obligation of approximately $420,000". The NAL fines TMI $270,000 in connection with non-payment of USF taxes, and $10,000 in connection with non-payment of regulatory fees.

This NAL is numbered FCC 05-156.

The FCC also fined OCMC, Inc. See, document [8 pages in PDF] titled "Notice of Apparent Liability for Forfeiture" (NAL). This NAL states that OCMC is "an operator service provider, interexchange carrier and toll reseller", and that "for years OCMC has made irregular and unsatisfactory payments to the USF".

The NAL states that OCMC's tax debt is $2,047,521, but that its fine is $1,133,761. This NAL is numbered FCC 05-157.

8/15. The U.S. Court of Appeals (9thCir) issued an order [PDF] in MGM v. Grokster. The order states that "In conformance with the mandate of the Supreme Court, we remand this case to the district court for further proceedings consistent with the opinion of the United States Supreme Court. See Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 125 S. Ct. 2764 (2005)." On June 27, 2005, the Supreme Court issued its unanimous opinion [55 pages in PDF] in MGM v. Grokster, reversing the judgment of the U.S. Court of Appeals (9thCir) regarding vicarious copyright infringement by the distributors of peer to peer (P2P) systems. The Supreme Court held that "one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties." See, story titled "Supreme Court Rules in MGM v. Grokster" in TLJ Daily E-Mail Alert No. 1,163, June 28, 2005.

8/15. The U.S. Court of Appeals (9thCir) issued its opinion [17 PDF] in Kourtis v. Cameron, a copyright case involving movie concepts. This suit arises out of disputes involving two movies, The Minotaur, conceived in 1987, but not yet produced, and Terminator II: Judgment Day, released in 1991. There have been many suits in the U.S. and Australia. The main issue on appeal in the present suit is whether the creators of the The Minotaur are collaterally estopped by a prior judgment from pursuing a copyright infringement claim against the producers of Terminator II. The District Court held that they are collaterally estopped. The Court of Appeals reversed. This case is Filia Kourtis and Con Kourtis v. James Cameron, et al., U.S. Court of Appeals for the 9th Circuit, App. Ct. No. 03-56703, an appeal from the U.S. District Court for the Central District of California, D.C. No. CV-02-02906-WMB, Judge William Byrne presiding. Judge Diarmuid O'Scannlain, wrote the opinion of the Court of Appeals, in which Judges Kim Wardlaw and Charles Lovell joined.

The House will not meet on Monday, August 1 through Monday, September 5. See, House calendar and Republican Whip Notice.

The Senate will not meet on Monday, August 1 through Monday, September 5. See, Senate calendar.

The Supreme Court is between terms. The opening conference of its October 2005 Term will be held on September 26, 2005.

9:00 AM - 12:00 NOON. The Department of Homeland Security (DHS) will host a briefing on its new programs for acquiring information technology services and commodities. For more information, call 202 282-8010. Location: Ronald Reagan Auditorium.

10:00 AM. The Federal Trade Commission (FTC) will hold a news conference to "announce settlement of FTC charges that an Internet marketer used the lure of a free credit reports to deceive consumers". The FTC notice also states that " Reporters who want to cover the event, but who cannot attend, can participate by phone. Dial in number: 800-377-4562; confirmation number: 43816272; chairperson Gracie Johnson. Reporters can ask questions during the conference by e-mailing pressquestions at FTC dot gov". Location: FTC, 600 Pennsylvania Ave., NW, Room 332.

2:00 - 4:00 PM. The Department of States' (DOS) International Telecommunication Advisory Committee (ITAC) will meet to prepare for the CITEL Permanent Consultative Committee I, Telecommunication Standardization. See, notice in the Federal Register, July 13, 2005, Vol. 70, No. 133, at Page 40414. Location: undisclosed. The DOS states that "Access to these meetings may be arranged by contacting Julian Minard at minardje at state dot gov.

2:00 - 4:00 PM. The Department of States' (DOS) International Telecommunication Advisory Committee (ITAC) will meet to prepare for ITU-T Study Group 3's Working Party on Charging and Accounting Principles. See, notice in the Federal Register, July 13, 2005, Vol. 70, No. 133, at Page 40414. Location: undisclosed. The DOS states that "Access to these meetings may be arranged by contacting Julian Minard at minardje at state dot gov.

6:00 - 8:15 PM. The DC Bar Association will host a continuing legal education (CLE) seminar titled "Trade Secrets: Case Law Update". The speaker will be Milton Babirak (Babirak Vangellow & Carr). The price to attend ranges from $70-$125. For more information, call 202-626-3488. See, notice. Location: D.C. Bar Conference Center, 1250 H Street NW, B-1 Level.

Deadline to submit comments in response to, and notices of intent to participate in proceedings on, the Copyright Office's (CO) settlement proposal for the adjustment of certain royalty rates for use of the cable statutory license. See, notice in the Federal Register, July 20, 2005, Vol. 70, No. 138, at Pages 41650 - 41652.

Deadline to submit initial comments to the Copyright Office in response to its notice of proposed rulemaking (NPRM) regarding preregistration of unpublished works provision under the Artists' Rights and Theft Prevention Act (ART Act). See, notice in the Federal Register, July 22, 2005, Vol. 70, No. 140, at Pages 42286 - 42292. See also, story titled "Copyright Office Commences Rulemaking on Preregistration of Unpublished Works" in TLJ Daily E-Mail Alert No. 1,181, July 25, 2005.

Deadline to submit comments to the Internal Revenue Service (IRS) in response to its notice of proposed rulemaking (NPRM) regarding the filing of information returns by donees relating to qualified intellectual property contributions. See, notice in the Federal Register, May 23, 2005, Vol. 70, No. 98, at Pages 29460 - 29461.

Deadline to submit comments to the U.S. Patent and Trademark Office (USPTO) in response to its notice of proposed rulemaking (NPRM) regarding changes to the rules of practice to implement the provisions for refunding the search fee for applicants who file a written declaration of express abandonment before an examination has been made of the application. See, notice in the Federal Register, June 21, 2005, Vol. 70, No. 118, at Pages 35571 - 35573.

EXTENDED TO SEPTEMBER 1. Deadline to submit initial comments to the Copyright Office regarding its first report to the Congress required by the Satellite Home Viewer Extension and Reauthorization Act of 2004. See, original notice in the Federal Register, July 7, 2005, Vol. 70, No. 129, at Pages 39343 - 39345. See also, notice extending deadlines in the Federal Register, August 15, 2005, Vol. 70, No. 156, at Page 47857.

EXTENDED TO SEPTEMBER 21. Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to it notice of proposed rulemaking (NPRM) regarding low power FM rules. The FCC adopted its order and NPRM on March 16, 2005, and released it on March 17, 2005. It is FCC 05-75 in MM Docket No. 99-25. See, original notice in the Federal Register, July 7, 2005, Vol. 70, No. 129, at Pages 39217 - 39227. See also, FCC notice [PDF] extending the deadlines.

Time: undisclosed. The Department of Homeland Security's (DHS) Homeland Security Science and Technology Advisory Committee (HSSTAC) will hold a meeting that is closed to the public. See, notice in the Federal Register, August 9, 2005, Vol. 70, No. 152, at Pages 46182 - 46183. Location: undisclosed.

8/15. The National Science Foundation (NSF), a federal agency, announced in a release that its "expects to make 36 new awards totaling $36 million through its 2005 Cyber Trust program. The awards, ranging from $200,000 to $7.5 million, include two new centers -- one focused on the design and technology for trustworthy voting systems and the other on securing electric power grids. Cyber Trust, the centerpiece of NSF's cybersecurity efforts, is based on a vision of society in which the computers and networks underlying national infrastructures, as well as in homes and offices, can be relied upon to work--even in the face of cyber attacks."

8/15. The National Science Foundation (NSF) published a notice in the Federal Register announcing the formation of an Advisory Committee for Cyberinfrastructure. See, Federal Register: August 15, 2005, Vol. 70, No. 156, at Page 47858.

8/15. The Office of Personnel Management (OPM) published a notice in the Federal Register that recites, describes, and sets the effective date (September 14, 2005) for its final regulations implementing parts of the E-Government Act of 2002. The notice states that this Act "authorizes the temporary detail of employees in the field of information technology (IT) management from the Federal Government to private sector organizations. It also authorizes Federal agencies to accept private sector employees detailed under this program. This program is envisioned to promote the interchange of Federal and private sector workers to enhance skills and competencies." See, Federal Register, August 15, 2005, Vol. 70, No. 156, at Pages 47711 - 47716.

Tech Law Journal publishes a free access web site and subscription e-mail alert. The basic rate for a subscription to the TLJ Daily E-Mail Alert is $250 per year. However, there are discounts for subscribers with multiple recipients. Free one month trial subscriptions are available. Also, free subscriptions are available for journalists, federal elected officials, and employees of the Congress, courts, and executive branch. The TLJ web site is free access. However, copies of the TLJ Daily E-Mail Alert are not published in the web site until one month after writing. See, subscription information page.

Contact: 202-364-8882.
P.O. Box 4851, Washington DC, 20008.

Privacy Policy
Notices & Disclaimers
Copyright 1998 - 2005 David Carney, dba Tech Law Journal. All rights reserved.