2/9. The U.S. Court of Appeals (8thCir) issued its opinion [17 pages in PDF] in Firstcom v. Qwest, a case arising out of ancient interconnection claims. The Court of Appeals affirmed the judgment of the District Court, which dismissed all claims against Qwest.

Firstcom was a competitive local exchange carrier (CLEC) within the meaning of the Communications Act. It went out of business in 2001, and sold its assets to Al Jaffe & Associates (AJA), which later assumed the name Firstcom. Qwest is an incumbent local exchange carrier (ILEC).

In 2004, shareholders of the former Firstcom filed a complaint in U.S. District Court (DMinn) against Qwest, alleging violations of the federal Communications Act (47 U.S.C. § 251 and § 252) and the Minnesota Telecommunications Act (MTA). It also pled claims of violation of Minnesota common law, negligence, promissory estoppel, and fraudulent misrepresentation.

It alleged that there were secret interconnection agreements between Qwest and two other CLECs, which provided more favorable treatment to them, and thus harmed Firstcom.

In 2006, the later Firstcom filed a similar complaint.

The District Court granted summary judgment to Qwest. The later Firstcom brought the present appeal.

The Court of Appeals affirmed. The Court of Appeals held that the federal claim is time barred. It concluded that the two year limitation found in 47 U.S.C. § 415(b), rather than the general four year limitation found in 28 U.S.C. § 1658(a), controls.

The Court of Appeals also rejected Firstcom's argument that its claim is rendered timely by the doctrine of equitable tolling.

The Court of Appeals also affirmed the District Court's dismissal of the MTA claim.

Finally, the Court of Appeals affirmed the District Court's dismissal of the negligence, promissory estoppel, and fraudulent misrepresentation claims. The District Court concluded that all are preempted by the Communications Act. The Court of Appeals held that only the negligence claim is preempted. However, it held that the promissory estoppel and fraudulent misrepresentation claims are barred by the filed rate doctrine.

This case is Firstcom, Inc. v. Qwest Corporation, U.S. Court of Appeals for the 8th Circuit, App. Ct. No. 07-3548, an appeal from the U.S. District Court for the District of Minnesota, Judge David Doty presiding. Judge Shepherd wrote the opinion of the Court of Appeals, in which Judges Murphy and Bye joined.

2/5. The Federal Trade Commission (FTC) entered into a Stipulated Final Order for Permanent Injunction and Monetary Judgment [PDF] with Alternatel, Inc., and several other sellers of prepaid calling cards.

The FTC stated in a release that this case "is part of an ongoing FTC crackdown on fraud in the prepaid calling card industry".

The FTC filed its complaint on May 19, 2008, alleging violation of Sections 5 and 13(b) of the FTC Act, in connection with their misrepresenting to consumers the number of minutes of talk time their prepaid calling cards would provide.

The order bars the defendants from making false representations, and mandates certain disclosures, regarding the prepaid calling cards that they sell.

The judgment imposes a $2.25 Million fine on the defendants, jointly and severally.

The defendants are Alternatel, Inc., G.G. Enterprises LLC, dba Mystic Prepaid, Voice Prepaid, Inc. dba Telecom Express, Inc., Voice Distributors, Inc., Lucas Friedlander, Moses Greenfield, Nickolas Gulakos, and Frank Wendorff.

This case is FTC v. Alternatel, Inc., et al., U.S. District Court for the Southern District of Florida, Miami Division, D.C. No. 1:08-cv-21433-AJ.

2/4. Rep. John Conyers (D-MI) and others introduced HR 848 [LOC | WW], the "Performance Rights Act". Sen. Patrick Leahy (D-VT) and others introduced the companion bill in the Senate, S 379 [LOC | WW].

The related bills in the 110th Congress were HR 4789 [LOC | WW] and S 2500, [LOC | WW], both of which were introduced on December 18, 2007, and titled "Performance Rights Act".

Both the House Judiciary Committee's (HJC) Subcommittee on Courts, the Internet and Intellectual Property (SCIIP), and the Senate Judiciary Committee (SJC) held hearings on these bills. HR 4789 was approved by the HJC/SCIIP on June 26, 2008. Neither bill was marked up by the full Committee.

The HJC issued a release that states that "The legislation would amend an inequity in America's copyright law that exempts over-the-air broadcasters from paying those who perform the music that we listen to on AM and FM radio. Webcasters, satellite radio providers and cable companies are presently required to pay for music they broadcast."

The record industry supports these bills, while radio broadcasters oppose them.

Bill Summaries. The exclusive rights of copyright holders are set out in 17 U.S.C. § 106. Section 106(6) extends the performance right for sound recordings only to digital audio transmissions, thus exempting broadcasts by terrestrial radio broadcasters.

Section 106(6) currently provides that "the owner of copyright under this title has the exclusive rights to do and to authorize ... in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission".

HR 848 and S 379 would amend this by deleting the word "digital". Thus, the rights of recording artists in all audio transmissions would be protected by copyright.

Currently, the exclusive rights of recording artists extend to audio transmissions by internet streaming, satellite radio, and via social networking sites.

However, both HR 848 and S 379 would provide special treatment for small, noncommercial, educational, and religious radio stations.

The bills also contain a section titled "No Harmful Effects on Songwriters".

For example, they provide that "License fees payable for the public performance of sound recordings under section 106(6) shall not be cited, taken into account, or otherwise used in any administrative, judicial, or other governmental forum or proceeding, or otherwise, to set or adjust the license fees payable to copyright owners of musical works or their representatives for the public performance of their works, for the purpose of reducing or adversely affecting such license fees. License fees payable to copyright owners for the public performance of their musical works shall not be reduced or adversely affected in any respect as a result of the rights granted by section 106(6)."

Reaction. Mitch Bainwol, head of the Recording Industry Association of America (RIAA), stated in a release that "This legislation is about fairness and a level playing field, plain and simple. The arguments for this legislation have never been more compelling, the time never more ripe, and the level of support within the music community never more strong. Every one of the competitors of FM and AM radio pays artists and labels for the use of their music. Moreover, in these economically challenging times, we cannot ignore the millions of dollars that's left on the table when American music is played overseas."

Bainwol added that "The reasonable concerns of small broadcasters have been addressed in this bill. Nonetheless, the National Association of Broadcasters continues to thumb its nose at Congress and refuse to come to the table in good faith."

David Israelite, head of the National Music Publishers Association (NMPA), stated in a release that the music community should be "supportive of each other regarding the value of music". Therefore, he stated that "we support the efforts of Chairman Leahy and Chairman Conyers in introducing this bill. We are pleased the bill introduced today includes some protections so songwriters are not harmed in the process of fairly compensating performers and record labels -- a must for any such legislation."

David Rehr, head of the National Association of Broadcasters (NAB), stated in a release on February 4, 2009, that "Local radio broadcasters consider this fee a 'performance tax' that will not only harm your local radio stations, but will threaten new artists trying to break into the business as well as your constituents who rely on local radio".

Rehr added that "Although the proponents of H.R. 848 claim this bill is about compensating artists, in actuality at least half of this fee will go directly into the pockets of the big record labels, funneling billions of dollars to companies based overseas."

Rehr also sent a letter [PDF] to members of Congress on February 4, 2009, expressing opposition to HR 848.

The other original cosponsors of HR 848 are Rep. Darrell Issa (R-CA), Rep. Howard Berman (D-CA), Rep. Marsha Blackburn (R-TN), Rep. Paul Hodes (D-NH), Rep. Debbie Schultz (D-FL), Rep. Anthony Weiner (D-NY), Rep. Steve Cohen (D-TN), Rep. Jerrold Nadler (D-NY), Rep. Robert Wexler (D-FL), Rep. Collin Peterson (D-MN), Rep. Hank Johnson (D-GA), Rep. Adam Schiff (D-CA), Rep. Brad Sherman (D-CA), Rep. John Shadegg (R-AZ), Rep. Sheila Lee (D-TX), Rep. Linda Sanchez (D-CA), Rep. Jane Harman (D-CA), and Rep. Henry Waxman (D-CA).

The original cosponsors of S 379 are Sen. Orrin Hatch (R-UT), Sen. Dianne Feinstein (D-CA), Sen. Bob Corker (D-TN), and Sen. Barbara Boxer (D-CA).

Both bills were referred to the Judiciary Committees.

2/9. The Securities and Exchange Commission (SEC) announced in a release that Linda Thomsen (at left), the Director of the Division of Enforcement, "plans to return to the private sector". She faces allegations that she disclosed confidential SEC information about Bear Stearns to JP Chase Morgan at a time when it was considering acquiring Bear Stearns. See, story titled "SEC Charges Mark Cuban with Insider Trading" in TLJ Daily E-Mail Alert No. 1,858, November 18, 2008.

2/9. Rep. Henry Waxman (D-CA), Chairman of the House Commerce Committee (HCC), named Vice Chairs of the HCC's Subcommittees. Rep. Anthony Weiner (D-NY) (at right) is the Vice Chair of the Subcommittee on Communications, Technology, and the Internet. Rep. Jan Schakowsky (D-IL) is the Vice Chair Subcommittee on Commerce, Trade, and Consumer Protection. See, HCC release. Also, Rep. Diana DeGette (D-CO) is the Vice Chair of the full HCC.

2/6. The U.S. Chamber of Commerce announced that Amanda Engstrom was named Chief of Staff to P/CEO Thomas Donohue. She will also continue as SVP for the U.S. Chamber's Center for Capital Markets Competitiveness. See, release.

2/9. The Federal Communications Commission's (FCC) International Bureau (IB) issued an order [PDF] (DA 09-204) that sets aside, on its own motion, its Declaratory Ruling (DA 09-87) dated January 16, 2009. This item orders that "DIRECTV Enterprises, LLC’s application for a 17/24 GHz Broadcast Satellite Service space station to be operated at the 102.825° W.L. Orbit Location IS REINSTATED nunc pro tunc." "Nunc pro tunc" is Latin for now for then.

2/9. The Cato Institute published a short paper titled "U.S. Patent and Trademark Office: FAIL". The author is the Cato's Jim Harper. This paper examines one trademark matter. It faults the USPTO for both making an error, and for maintaining rules and procedures that can result in "a vortex of litigation because of simple error, through misuse by a vindictive bureaucrat or -- in this case -- when taken advantage of by a big company with aggressive lawyers". This can result, writes Harper, in "a big company trying to kill off a competitor with regulatory burden rather than competing fairly in the marketplace".

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This issue contains the following items:
 • 8th Circuit Affirms in Firstcom v. Qwest
 • FTC Obtains Fine From Deceptive Sellers of Prepaid Calling Cards
 • Performance Rights Act Reintroduced

The House will meet at 12:30 PM for morning hour, and at 2:00 PM for legislative business. The House is scheduled to consider numerous items under suspension of the rules on February 10 or later, including HR 554 [LOC | WW], the "National Nanotechnology Initiative Amendments Act of 2009". See, Rep. Hoyer's schedule for week of February 9.

The Senate will meet at 10:00 AM. It will resume consideration of HR 1 [LOC | WW], a huge spending bill.

8:00 - 10:00 AM. The BroadbandCensus dot com [http colon slash slash broadbandcensus dot com] will host a breakfast event titled "The Role of Wireless Frequencies in Widespread Broadband Deployment". The speakers will be John Kneuer, John Muleta (M2Z Networks), Steve Sharkey (Motorola), Don Brittingham (Verizon), and Tom DeRiggi (Rapid DSL & Wireless). For more information, contact Drew Clark at drew at broadbandcensus dot com or 202-580-8196. Breakfast begins at 8:00 AM. The program begins at 8:40 AM. The price to attend these monthly events is $45. These events are open to the public. Location: Old Ebbitt Grill, 675 15th St., NW.

9:00 AM - 4:30 PM. Day two of a five day meeting of the Federal Aviation Administration's (FAA) RTCA Special Committee 159: Global Positioning System. See, notice in the Federal Register, January 28, 2009, Vol. 74, No. 17, at Page 5024. Location: RTCA, Inc., Suite 805, 1828 L St., NW.

10:00 AM. The Senate Judiciary Committee (SJC) will hold a hearing on the nominations of Elena Kagan to be Solicitor General, and Thomas Perrelli to be Associate Attorney General. See, notice. Location: Room 226, Dirksen Building.

12:00 NOON. The Cato Institute will host a panel discussion titled "A Service to the Economy: The Importance of Free Trade in Services". The speakers will be Bob Vastine (U.S. Coalition of Services Industries), Christine Bliss (Assistant U.S. Trade Representative for Services and Investment), Aaditya Mattoo (World Bank), and Sallie James (Cato). The Cato Institute will webcast this event. Lunch will be served after the program. This event is free and open to the public. See notice. Location: Cato, 1000 Massachusetts Ave., NW.

12:15 PM - 1:30 PM. The Federal Communications Bar Association's (FCBA) Mass Media Practice Committee will host a brown bag lunch titled "DTV Transition, Now or Later: Final Mechanics from Here to the End". See, notice and registration page. Location: National Association of Broadcasters, 1771 N St., NW.

2:30 - 4:30 PM. The American Enterprise Institute (AEI) will host a panel discussion titled "Broadband's Role in the Economy and the Stimulus Package". The speakers will be Robert Hahn (AEI), Robert Crandall (Brookings Institution), Michael Katz (New York University), Robert Shapiro (Sonecon), and Gigi Sohn (Public Knowledge). See, notice. Location: AEI, 12th floor, 1150 17th St., NW.

The House will meet at 10:00 AM for legislative business. See, Rep. Hoyer's schedule for week of February 9.

Day one of a two day conference hosted by the Federal Trade Commission (FTC) titled "The Evolving IP Marketplace: Patent Remedies". See, release and agenda [PDF]. Location: FTC Conference Center, 601 New Jersey Ave., NW.

9:00 AM - 4:30 PM. Day three of a five day meeting of the Federal Aviation Administration's (FAA) RTCA Special Committee 159: Global Positioning System. See, notice in the Federal Register, January 28, 2009, Vol. 74, No. 17, at Page 5024. Location: RTCA, Inc., Suite 805, 1828 L St., NW.

10:00 AM - 12:00 NOON. The House Science Committee (HSC) will hold a hearing titled "Electronic Waste: Investing in Research and Innovation to Reuse, Reduce, and Recycle". The witnesses will be Valerie Thomas (Georgia Institute of Technology), Jeff Omelchuck (Green Electronics Council), and Paul Anastas (Yale University). See, notice. For more information, contact 202-225-6375. The HSC will webcast this event. Location: Room 2318, Rayburn Building.

10:00 AM. Federal Communications Commission (FCC) Chairman Michael Copps will host an event titled "first news briefing with reporters covering the FCC". Location: FCC, 8th floor, conference room 1.

4:00 - 5:00 PM. The Information Technology and Innovation Foundation (ITIF) will host an event titled "The Korean Strategy for Green Technology Development and Role of IT". The speakers will be Suk Joon Kim, President of the Korean Science and Technology Policy Institute (STEPI), and Jung Hyup, Senior Research at the STEPI. See, notice. Location: ITIF, Suite 200, 1250 Eye St., NW.

The House will meet at 10:00 AM for legislative business. See, Rep. Hoyer's schedule for week of February 9.

200th anniversary of the birth of former President Abraham Lincoln. (This is not a federal holiday.)

Day two of a two day conference hosted by the Federal Trade Commission (FTC) titled "The Evolving IP Marketplace: Patent Remedies". See, release and agenda [PDF]. Location: FTC Conference Center, 601 New Jersey Ave., NW.

9:00 AM - 4:30 PM. Day four of a five day meeting of the Federal Aviation Administration's (FAA) RTCA Special Committee 159: Global Positioning System. See, notice in the Federal Register, January 28, 2009, Vol. 74, No. 17, at Page 5024. Location: RTCA, Inc., Suite 805, 1828 L St., NW.

9:00 AM - 12:30 PM. The U.S. Patent and Trademark Office (USPTO) will hold a roundtable on regarding whether or not to adopt some form of deferred examination for patent applications. See, notice in the Federal Register, January 28, 2009, Vol. 74, No. 17, at Pages 4946-4947. Location: USPTO, Madison Auditorium, Madison Building, 600 Dulany St., Alexandria, VA.

9:00 AM - 12:00 NOON. The U.S. Chamber of Commerce will host an event titled "Day Without Space". It will focus on "the economic and national security ramifications if our space assets were compromised for a period of time". The keynote speaker will be General James Cartwright, Vice Chairman of the Joint Chiefs of Staff. For more information, contact David Logsdon dlogsdon at uschamber dot com or 202-463-5479. Location: Chamber, 1615 H St., NW.

10:00 AM. The Senate Commerce Committee (SCC) will hold a hearing on the nominations of John Holdren to be Director of the Office of Science and Technology Policy (OSTP) in the Executive Office of the President, and Jane Lubchenco to be head of the National Oceanic and Atmospheric Administration (NOAA). See, notice. Location: Room 253, Russell Building.

10:00 AM. The Senate Commerce Committee (SCC) will hold a business meeting to adopt rules for the 111th Congress. See, notice. Location: Room 253, Russell Building.

10:00 AM. The Senate Homeland Security and Governmental Affairs Committee will hold a hearing titled "Structuring National Security and Homeland Security at the White House". See, notice. Location: Room 342, Dirksen Building.

11:00 AM. The House Judiciary Committee's (HJC) Subcommittee on Commercial and Administrative Law will hold a hearing titled "Libel Tourism". See, stories titled "New York Senate Passes Libel Terrorism Protection Act" in TLJ Daily E-Mail Alert No. 1,725, March 3, 2008, "Rep. King Introduces Free Speech Protection Act" in TLJ Daily E-Mail Alert No. 1,756, April 29, 2009, and "Sens. Specter and Lieberman Introduce Bill Regarding Foreign Forum Shopping Libel Actions" in TLJ Daily E-Mail Alert No. 1,765, May 13, 2008. See also, HR 5814 [LOC | WW] and S 2977 [LOC | WW], in the 110th Congress, both titled the "Free Speech Protection Act of 2008".The HJC will webcast this hearing. Location: Room 2141, Rayburn Building.

Deadline to submit comments to the Federal Trade Commission (FTC) in response to its "Interim final rules with request for comment" regarding its administrative adjudications. See, notice in the Federal Register, January 13, 2009, Vol. 74, No. 8, at Pages 1803-1836. See also, story titled "FTC Writes Rules to Bolster Power of Antitrust Regulators" in TLJ Daily E-Mail Alert No. 1,882, January 13, 2008.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its notice of proposed rulemaking (NPRM) regarding application of the closed captioning rules to digital broadcasting, specifically to broadcasters that choose to use their digital allotment to multicast several streams of programming. The FCC adopted this item on November 3, 2008, and released the text [57 pages in PDF] on November 7, 2008. It is FCC 08-255 in CG Docket No. 05-231. See, notice in the Federal Register, January 13, 2009, Vol. 74, No. 8, at Pages 1654-1661.

The House will meet at 10:00 AM for legislative business. See, Rep. Hoyer's schedule for week of February 9.

9:00 AM - 4:30 PM. Day five of a five day meeting of the Federal Aviation Administration's (FAA) RTCA Special Committee 159: Global Positioning System. See, notice in the Federal Register, January 28, 2009, Vol. 74, No. 17, at Page 5024. Location: RTCA, Inc., Suite 805, 1828 L St., NW.

George Washington's birthday observed. See, Office of Personnel Management's (OPM) list of 2009 federal holidays.

The House will not meet the week of February 16-20 for a District Work Period.

10:00 AM. The Federal Trade Commission (FTC) is scheduled to begin its hearing in In the Matter of Whole Foods Markets, Inc. See, scheduling order [14 pages in PDF]. See also, story titled "DC Circuit Reverses in FTC v. Whole Foods" in TLJ Daily E-Mail Alert No. 1,802, July 29, 2008. Location: Room 532, FTC, 600 Pennsylvania Ave., NW.

5:00 PM. Deadline to register for the Federal Communications Bar Association's (FCBA) February 18 event titled "Investing in Foreign Telecoms Markets: Challenges and Opportunities". See, notice and registration page.

POSTPONED. Deadline for full power television stations to cease analog broadcasting.

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in Globalstar v. FCC, App. Ct. No. 08-1046. This is a petition for review of an FCC order regarding Big LEO spectrum. See, FCC brief [67 pages in PDF]. Judges Sentelle, Garland and Edwards will preside. Location: 333 Constitution Ave., NW.

12:30 - 1:30 PM. The Federal Communications Bar Association's (FCBA) State and Local Practice Committee will host a brown bag lunch titled "Collaboration between States, Federal Government and Industry on Uniform Outage Reporting for Carriers". The speaker will be Tom Goode, General Counsel of the Alliance for Telecommunications Industry Solutions (ATIS). See, notice and registration page. Location: Renaissance Hotel, Meeting Room 3, 999 9th St., NW.

1:00 - 3:00 PM. The Federal Communications Commission's (FCC) World Radiocommunications Conference (WRC-11) Advisory Committee's Informal Working Group 2: Terrestrial Services will meet. See, notice and FCC's WRC-11 web site. Location: FCC, South Conference Room, 2nd floor, Room 2-B516, 445 12th St., SW.

3:00 - 5:00 PM. The Federal Communications Commission's (FCC) World Radiocommunications Conference (WRC-11) Advisory Committee's Informal Working Group 3: Space Services will meet. See, notice and FCC's WRC-11 web site. Location: FCC, South Conference Room, 2nd floor, Room 2-B516, 445 12th St., SW.

5:00 PM. Deadline to submit applications to the National Institute of Standards and Technology (NIST) for participation in its 2009 SURF grant programs. These are the NIST's Gaithersburg Summer Undergraduate Research Fellowship Program, and Boulder Summer Undergraduate Research Fellowship Program. The NIST distributes grants for, among other topics, electronics and electrical engineering, and information technology. See, notice in the Federal Register, December 30, 2008, Vol. 73, No. 250, at Pages 79817-79822.