7/8. The U.S. Court of Appeals (DCCir) issued its opinion [26 pages in PDF] in In Re Core Communications, granting the petition for writ of mandamus, ordering the Federal Communications Commission (FCC) to articulate a valid legal justification for its rules governing intercarrier compensation for telecommunications traffic bound for internet service providers (ISPs) by November 5, 2008, and if the FCC fails to do so, vacating these rules the day after.

Summary. Core Communications is a competitive local exchange carrier (CLEC) that has long been challenging the FCC's 2001 rules. The Court of Appeals rejected these rules in 2002. However, merely remanded without vacating, in order to allow the FCC the opportunity to justify its rules. The FCC has delayed for six years. The FCC has also failed to follow through on its bill and keep rulemaking proceeding, which was initiated with the 2001 order.

The Court of Appeals wrote in a sometimes blunt opinion that it has lost its patience with the FCC. It added that "the FCC’s delay in responding to our remand is egregious" and "There will be no extensions of that deadline".

The Court of Appeals wrote that "we grant the writ of mandamus and direct the FCC to respond to our 2002 WorldCom remand by November 5, 2008. That response must be in the form of a final, appealable order that explains the legal authority for the Commission’s interim intercarrier compensation rules that exclude ISP-bound traffic from the reciprocal compensation requirement of § 251(b)(5). No extensions of this deadline will be granted. The rules are hereby vacated on November 6, 2008, unless the court is notified that the Commission has complied with our direction before that date. This panel of the court will retain jurisdiction over the case to ensure compliance with our decision."

History. The FCC adopted its initial rules in 1996. In March of 2000, the Court of Appeals vacated the FCC's first rules regarding intercarrier compensation for telecommunications traffic bound for ISPs. See, March 24, 2000, opinion in Bell Atlantic v. FCC, which is also reported at 206 F.3d 1.

The FCC adopted new rules on remand in 2001. See, the FCC's Order on Remand and Report and Order [72 pages in PDF], adopted on April 18, 2001, and released on April 27, 2001. This remand order is FCC 01-131 in CC Dockets Nos. 96-98 and 99-68. See also, story titled "Reciprocal Compensation" in TLJ Daily E-Mail Alert 170, April 20, 2001.

Numerous parties filed petitions for review of these rules. In May of 2002 the Court of Appeals again rejected the FCC's rules. See, May 3, 2002 opinion of the Court of Appeals in WorldCom v. FCC, which is reported at 288 F.3d 429. The Supreme Court denied certiorari, at 538 U.S. 1012 (2003). See also, story titled "DC Circuit Remands FCC Bill and Keep Order" in TLJ Daily E-Mail Alert No. 425, May 6, 2002.

However, the Court of Appeals merely remanded to the FCC. It did not vacate the 2001 rules. It gave the FCC the opportunity to state a valid legal basis for its rules. Over six years after that opinion, the FCC has yet to do so.

Core filed a petition for writ of mandamus, seeking an order compelling the FCC to comply with the 2002 opinion in WorldCom. The Court of Appeals dismissed that petition without prejudice in 2005.

Core filed a second petition for writ of mandamus in 2007, which the Court of Appeals has granted in the just released opinion.

Also, Core filed a petition for forbearance with the FCC on July 14, 2003. Core sought forbearance from application of the FCC's interim rules. (See, "Statute and Rules" section below.) The FCC denied that petition in part. Core filed a petition for review with the Court of Appeals. See, Court of Appeals' June 30, 2006, opinion [28 pages in PDF] in In Re Core Communications, which is reported at 455 F.3d 267, and story titled "DC Circuit Denies Petitions for Review in Case Regarding Forbearance from Application of Intercarrier Compensation Rules for ISP Bound Traffic" in TLJ Daily E-Mail Alert No. 1,406, July 7, 2006.

Core later filed a second forbearance petition with the FCC in 2006, which the FCC denied, and which is now the subject of a petition for review pending before the Court of Appeals.

Statute and Rules. 47 U.S.C. § 251(b)(5), which was enacted as part of the Telecommunications Act of 1996, provides that local phone companies must compensate each other for handling each other's local calls. It requires that they "establish reciprocal compensation arrangements for the transport and termination of telecommunications."

The Court of Appeals explained that "before high-speed broadband connections (such as cable modem and digital subscriber line (DSL) service) became widely available, consumers generally gained access to the Internet through “dial-up” connections provided by local telephone companies. Under the dial-up method, a consumer uses a line provided by a local exchange carrier (LEC) -- usually an incumbent local exchange carrier (ILEC) -- to dial the local telephone number of an Internet service provider (ISP), which then connects the call to the Internet. Typically, the ISP does not subscribe to the ILEC, but instead subscribes to another LEC -- a competitive local exchange carrier (CLEC) -- that interconnects with the incumbent. Accordingly, a consumer who dials up to the Internet usually obligates an originating ILEC to transfer the call to a CLEC, which then delivers the call to the ISP. Core is a CLEC." (Parentheses in original.)

It added that "If ISP-bound traffic were governed by § 251(b)(5), reciprocal compensation arrangements would be required for the ILEC-to-CLEC hand-off just described, and ILECs would be required to compensate CLECs -- like Core -- for completing their customers’ calls to ISPs."

The FCC's 2001 rules, which remain in effect, provide that calls delivered to ISPs are not subject to the mandatory reciprocal compensation obligations of §251(b)(5). The FCC asserted as authority §251(g). (The 2002 WorldCom opinion rejected this assertion of authority.)

The rules also imposed an "interim" intercarrier compensation regime for ISP bound traffic. Four interim provisions regarding rates caps, the mirroring rule, growth caps, and the new markets rule, are the subject of Core's challenges.

The FCC simultaneously initiated a rule making proceeding to consider whether the FCC should replace existing intercarrier compensation schemes with a bill and keep regime. The FCC wrote in its 2001 order that with a bill and keep regime "neither of two interconnecting networks charges the other for terminating traffic that originates on the other network. Instead, each network recovers [its costs] from its own end-users." (Brackets added.)

This proceeding languishes at the FCC.

Writ of Mandamus. The Court of Appeals concluded that a writ of mandamus is appropriate in this case.

It wrote that "In this case, we are faced with the agency’s failure -- for six years -- to respond to our own remand. In so doing, the agency has effectively nullified our determination that its interim rules are invalid, because our remand without vacatur left those rules in place. Moreover, until the FCC states its explanation for its interim rules in a final order, Core cannot mount a challenge to those rules. In this way, the FCC insulates its nullification of our decision from further review."

Meanwhile, the FCC continues to "enforce rules for which it has articulated no lawful basis".

The FCC argued in its brief that it "is conducting a rulemaking proceeding in which it is considering comprehensive, industry-wide reforms to the system of intercarrier compensation" and that "this broad rulemaking will, among other things, address the issues raised by this Court's remand in WorldCom, Inc. v. FCC". The FCC also asserted that "That still active proceeding has not been subject to any unreasonable delay." See, FCC's brief [29 pages in PDF] in opposition to petition for writ of mandamus, filed on December 27, 2007.

The Court of Appeals added that "counsel suggests that the Commission is on the brink of concluding its rulemaking and responding to our remand", and it recited various last minute promises and press releases.

"We have heard this refrain before", wrote the Court. "At some point, promises are no longer enough, and we must end the game of ``administrative keep-away.´´"

The Court of Appeals continued to describe the FCC with disrespect rarely found in opinions of the Court of Appeals. "Having repeatedly, and mistakenly, put our faith in the Commission, we will not do so again. If the FCC cannot, within six months, explain its legal authority for the interim rules, we can only presume that this is because there is in fact no such authority."

Although, the opinion not clear as to whether the Court has lost faith in the FCC in the context of intercarrier compensation proceedings, or it has lost faith in the FCC generally.

The FCC also argued that the Court of Appeals should defer consideration Core Communications' petition for writ of mandamus until it resolves Core Communications' petition for review of the FCC's denial of its petition for forbearance from 47 U.S.C. §§ 251(g) and 254(g) and implementing rules. That is App. Ct. No. 07-1381. See also, FCC brief [61 pages in PDF] filed on May 19, 2008.

The Court of Appeals rejected this argument.

Judge Griffith wrote in his concurring opinion that the Court of Appeals helped to create this "mess" by issuing an "open-ended remand without vacatur" back in 2002.

"Remand without vacatur is common in this circuit", wrote Griffith. "But experience suggests that this remedy sometimes invites agency indifference." He urged "future panels to consider the alternatives to the open-ended remand without vacatur."

This case is In Re Core Communications, Inc., U.S. Court of Appeals for the District of Columbia Circuit, App. Ct. No. 07-1446, an petition for writ of mandamus to the FCC. Judge Garland wrote the opinion of the Court of Appeals, in which Judges Tatel and Griffith joined. Judge Griffith also wrote a concurring opinion.

7/8. Federal Communications Commissioner (FCC) member Deborah Tate named Greg Orlando to be her legal advisor for wireline issues, broadband, and universal service. Orlando was previously Legislative Director and Counsel to Rep. Mike Ferguson (R-NJ), who is a member of the House Commerce Committee (HCC) and its Subcommittee on Telecommunications and the Internet. Before that, he worked for Rep. John Doolittle (R-CA). See, FCC release.

7/8. Carol Haave was appointed Assistant Secretary for International Affairs at the Department of Homeland Security (DHS). See, DHS release. This appointment does not require Senate confirmation.

6/27. The Senate confirmed Elaine Duke to be Under Secretary for Management for the Department of Homeland Security (DHS). See also, statement by Michael Chertoff.

7/8. The House Rules Committee adopted a rule for consideration of HR 5811 [LOC | WW], the "Electronic Message Preservation Act". It is a closed rule; no amendments can be offered. This bill is on Rep. Hoyer's schedule for July 9.

7/8. The Government Accountability Office (GAO) released a report [74 pages in PDF] titled "Federal Records: National Archives and Selected Agencies Need to Strengthen E-Mail Management". This report is based on the GAO's examination of e-mail recordkeeping processes at the Environmental Protection Agency, the Federal Trade Commission (FTC), Department of Homeland Security (DHS), and Department of Housing and Urban Development (DHUD). The GAO noted that "The four agencies reviewed generally managed e-mail records through paper-based processes, rather than using electronic recordkeeping. ... The practice at the units was to include e-mail printouts in the case files if the e-mails contained information necessary to document the case -- that is, record material."

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The House will meet at 10:00 AM for legislative business. The House may consider HR 5811 [LOC | WW], the "Electronic Message Preservation Act", subject to a rule. See, Rep. Hoyer's schedule for the week of July 7, and schedule for July 9

The Senate will meet at 9:30 AM. It will resume consideration of HR 6304 [LOC | WW], "Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2008".

8:00 AM - 5:00 PM. The Information Technology Association of America (ITAA) will host a one day conference titled "Defense 2.0: Transforming DoD Through the New Paradigm of IT". See, notice. Prices vary. Location: Ritz Carlton, Pentagon City.

9:30 AM. The Senate Judiciary Committee (SJC) will hold a hearing titled "Oversight of the U.S. Department of Justice". Attorney General Michael Mukasey will testify. See, notice. Location: Room 106, Dirksen Building.

10:00 AM. The Senate Commerce Committee (SCC) will hold a hearing titled "Privacy Implications of Online Advertising". The witnesses will be Lydia Parnes (Director of the Federal Trade Commission's Bureau of Consumer Protection), Mike Hintze (Microsoft), Robert Dykes (NebuAd Inc.), Leslie Harris (Center for Democracy and Technology), Jane Horvath (Google Inc.), Wayne Crews (Competitive Enterprise Institute), and Chris Kelly (Facebook, Inc.). See, notice. Location: Room 253, Russell Building.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Gammino v. Davel Communications, App. Ct. No. 2008-1089, a patent infringement action involving international call blocking technology. Location: Courtroom 402, 717 Madison Place, NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Asyst Technologies v. Emtrak, App. Ct. No. 2007-1554. This is a patent case involving an inventory management system used in the production of integrated circuits Location: Courtroom 402, 717 Madison Place, NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Tavory v. NTP, App. Ct. Nos. 2007-1527 and 2008-1090, patent and copyright cases involving e-mail push software. Location: Courtroom 402, 717 Madison Place, NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Broadcomm v. Qualcomm, App. Ct. No. 2008-1199. Location: Courtroom 203, 717 Madison Place, NW.

12:15 PM. The Federal Communications Bar Association's (FCBA) Young Lawyers Committee will host a brown bag lunch titled "The Role of Trade Association Policymakers and Counsel". The speakers will be Jane Mago (National Association of Broadcasters), Jonathan Banks (USTelecom), Carolyn Brandon (CTIA), and Dan Brenner (National Cable & Telecommunications Association). For more information, contact Brendan Carr at BCarr at wileyrein dot com or Tarah Grant at tsgrant at hhlaw dot com. Location: Willkie Farr & Gallagher, 1875 K St., NW.

The House will meet at 10:00 AM for legislative business. The House may consider HR 5811 [LOC | WW], the "Electronic Message Preservation Act", subject to a rule. See, Rep. Hoyer's schedule for the week of July 7.

10:00 AM. The House Armed Services Committee will hold a hearing regarding electromagnetic pulse (EMP) attacks. An EMP attack, such as by a distant high altitude detonation of a nuclear device, could disrupt telecommunications, information technology, and electric power systems. The witness will be William Graham, Chair of the Commission to Assess the Threat to the United States from Electromagnetic Pulse (EMP) Attack. Location: Room 2118, Rayburn Building.

10:00 AM. The House Judiciary Committee's (HJC) Subcommittee on Commercial and Administrative Law will hold a hearing titled "Politicization of the Justice Department and Allegations of Selective Prosecution". See, notice. Location: Room 2141, Rayburn Building.

10:00 AM. The Senate Judiciary Committee (SJC) will hold a hearing titled "Passport Files: Privacy Protection Needed For All Americans". See, notice. Location: Room 226, Dirksen Building.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in NetMoneyIn v. Verisign, App. Ct. No. 2007-1565. Location: Courtroom 402, 717 Madison Place, NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Uniloc USA v. Microsoft, App. Ct. No. 2008-1121, a patent infringement case involving technology for registering software. Location: Courtroom 402, 717 Madison Place, NW.

2:30 PM. The Senate Foreign Relations Committee will hold a hearing on numerous treaties. See, notice. Location: Room 419 Dirksen Building.

The House will meet at 9:00 AM for legislative business. See, Rep. Hoyer's schedule for the week of July 7.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Cooper Technologies v. Dudas, App. Ct. No. 2008-1130. See, U.S. District Court's (EDVa) opinion [PDF] holding that the USPTO's interpretation that the term "original application" in the American Inventor's Protection Act of 1999 to include continuation applications was not arbitrary, capricious or contrary to law. Location: Courtroom 201, 717 Madison Place, NW.

12:00 NOON. The Cato Institute will host a panel discussion titled "Securing Economic Growth through Trade Facilitation". The speakers will be Simeon Djankov (World Bank) and Daniel Ikenson (Cato). Lunch will be served. See, notice and registration page. Location: Room B-339, Rayburn Building.

Deadline to submit comments to the Office of the United States Trade Representative (OUSTR) regarding the OUSTR's complaint filed with the World Trade Organization (WTO) on May 28, 2008, regarding European tariff treatment accorded to set-top boxes with a communication function, flat panel displays, input or output units, and facsimile machines. See, notice in the Federal Register, June 17, 2008, Vol. 73, No. 117, at Pages 34350-34351. See also, story titled "US and Japan File Complaints with WTO Regarding EU Duties on Tech Products" in TLJ Daily E-Mail Alert No. 1,776, June 4, 2008.

Deadline to submit comments to the Federal Communications Commission (FCC) regarding numerous applications to change the community of AM or FM licenses. See, notice in the Federal Register, May 14, 2008, Vol. 73, No. 94, at Pages 27824-27825.

Accelerated deadline to submit reply 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.

Deadline to submit reply 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.

9:00 AM. The Information Technology and Innovation Foundation (ITIF) will host a breakfast book discussion. The speakers will be Richard Lipsey, author of the book [Amazon] titled "Economic Transformations: General Purpose Technologies and Long Term Growth", and Robert Atkinson (ITIF). See, notice. Location: ITIF, Suite 200, 1250 Eye St., NW.

10:00 AM. The Senate Finance Committee (SFC) will hold a hearing titled "International Enforcement of Intellectual Property Rights and American Competitiveness". The witnesses will be Andrew Lack (Chairman, Sony BMG Music Entertainment), Jeffrey Kindler (Ch/CEO of Pfizer Inc.), John Barton (Stanford Law School), Walter Cahill (International Alliance of Theatrical Stage Employees, Moving Picture Technicians, Artists and Allied Crafts). See, notice. Location: Room 215, Dirksen Building.

10:00 AM. The Senate Banking Committee (SBC) will hold a hearing titled "The Semiannual Monetary Policy Report to the Congress". The witness will be Ben Bernanke, Chairman of the Federal Reserve Board. See, notice. Location: Room 325, Russell Building.

10:00 AM. The Senate Homeland Security and Governmental Affairs Committee will hold a hearing on the nomination of Gus Coldebella to be General Counsel of the Department of Homeland Security (DHS). See, notice. Location: Room 342, Dirksen Building.

10:30 AM. The Senate Judiciary Committee's (HJC) Subcommittee on Antitrust, Competition Policy and Consumer Rights will hold a hearing titled "The Google Yahoo Agreement and the Future of Internet Advertising". See, notice. Location: Room 226, Dirksen Building.

12:00 NOON - 1:00 PM. The Center for American Progress (CAP) will host a discussion of the book [Amazon] titled "Arts, Inc.: How Greed and Neglect Have Destroyed Our Cultural Rights". This book contains a criticism of copyright law. The speakers will be Bill Ivey (the author), Robert Lynch (America for the Arts) and Sally Steenland (CAP). See, notice. A light lunch might be served. Location: CAP, 10th floor, 1333 H St., NW.

CHANGED TO JUNE 30. 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, notice in the Federal Register, May 16, 2008, Vol. 73, No. 96, at Page 28400-28407. 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. See, notice accelerating comment deadlines in the Federal Register, May 29, 2008, Vol. 73, No. 104, at Page 30875.

TIME? Day one of a two day hearing of the U.S.-China Economic and Security Review Commission titled "Research and Development and Technological Advances in Key Industries in China". Location?

8:30 - 10:30 AM. The Institute for Policy Innovation (IPI) will host an event titled "Broadband Gets Personal: An International Perspective on Mobile Broadband". The speakers will be David Gross (Deputy Assistant Secretary of State for International Communications & Information Policy), Matthew Kirk (Vodafone), Barry Aarons (IPI), Massimiliano Trovato (Fellow, Istituto Bruno Leoni), David Jeppsen (NTT DoCoMo). RSVP to Erin Humiston at 972-874-5139 or erin at ipi dot org. Breakfast will be served. Location: Lisagor Room, National Press Club, 13th Floor, 529 14th St., NW.

6:00 - 9:15 PM. The DC Bar Association will host a program titled "Antitrust Investigations: Tactical and Ethical Issues". The speakers will be Kathryn Fenton (Jones Day), Ray Hartwell (Hunton & Williams), Donald Klawiter (Mayer Brown), and James Fredricks (Department of Justice). The price to attend ranges from $80 to $115. For more information, contact 202-626-3488. This event qualifies for continuing legal education (CLE) credits. See, notice. Location: DC Bar Conference Center, B-1 Level, 1250 H St., NW.