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DON'T MISS 2009 REGIONAL
COMMUNICATIONS LAW FORUM!
When: Thursday, July 16, 2009, 8:30am registration.
Conference Title: Communications Law Issues in Recessionary Times
Where: Minnesota CLE Conference Center, Seventh St. and Nicollet Mall,
Third Floor City Center, Minneapolis
Featured Speakers:
Lunch SpeakerNancy Barnes,
Editor and Senior Vice President, Star Tribune
What
is Happening to the News Business?
Brent Legg, Connected Nation
Review of statewide broadband maps and inventory
from Connected Nation, the non-profit firmed hired by the State of Minnesota to
conduct the broadband mapping inventory project.
This
year's conference highlights issues arising out of the intersection of
technology and our current economic times.
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We'll hear about the Obama Administration's
broadband initiatives under the American Recovery and Rehabilitation Act of
2009.
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We'll take a look at the "state of
broadband" from a national and economic perspective.
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We'll also hear from experienced bankruptcy
attorneys for practical legal advice in dealing with the wreckage caused within
the communications industry by the current economic crises.
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We'll also hear how technological and economic
forces are converging to change the way the news industry is doing business.
- All attendees will receive a 2009 Communications Law case law update in addition to the written materials from CLE presenters.
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8TH CIRCUIT
PREEMPTS NEBRASKA PSC'S UNIVERSAL SERVICE SURCHARGE ON NOMADIC VOIP SERVICES
The 8th Circuit Court of Appeals ruled
last month that the Nebraska Public Service Commission could not impose a state
universal service fund (USF) surcharge on nomadic VoIP providers. The decision upheld a lower court ruling
also preempting the Nebraska commission's state USF surcharge. The Court based its decision on the
"impossibility exception" which holds that if the interstate and
intrastate elements of VoIP service cannot be distinguished, and if the state
regulation interferes with valid federal rules or policies, then state
jurisdiction is preempted.
The Court ignored a brief filed by the FCC in
supporting a finding of state jurisdiction to impose the state universal
service surcharge. The 8th
Circuit emphasized the FCC's own language in its 2004 Vonage order preempting
the Minnesota Public Utilities Commission from requiring a certificate of
authority in order for Vonage to provide its VoIP service within the
state. Quoting from the FCC's order,
the court stated, "[T]he FCC has made it clear it [FCC], and not state
commissions, has the responsibility to decide if such regulations will be
applied."
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D.C. CIRCUIT COURT OF
APPEALS UPHOLDS FCC'S BAN ON EXCLUSIVE CONTRACTS BETWEEN CABLE COMPANIES AND
OWNERS OF MULTIPLE DWELLING UNITS (MDU'S)
The U.S. District Court for the District of Columbia
upheld the FCC's ban on exclusive contracts between cable companies and owners
of multi dwelling units (MDUs)(e.g. condominiums and apartment buildings). The FCC's order bans exclusivity clauses in
existing and future contracts between MDU owners and cable companies, declaring
such arrangements unenforceable by cable operators. The FCC's ban on existing exclusive
contracts was specifically upheld by the Court, which rejected an argument from
the NCTA that the FCC's order has an illegal retroactive effect.
The FCC's order upheld by the Court of Appeals
regulates only cable company conduct. In response to arguments from the
National Multi Housing Council, the National Apartment Association, and the
Manufactured Housing Institute that the FCC's order impermissibly regulates the
real estate industry, the Court's opinion states, "the terms of the
challenged prohibition apply only to cable companies . . . and they neither
require nor prohibit any action by MDUs." The FCC's Inside Wiring Order states that MDU owners continue to
retain the right to deny or grant access to any particular provider subject to
relevant state law. While there may be
an indirect effect on MDU owners, the FCC's jurisdiction reaches only cable
companies.
Moreover, the FCC's order only prohibits
exclusivity provisions in contracts.
The FCC's Order does not itself impact other provisions of cable
company-MDU contracts that happen to contain exclusivity clauses. In other words, barring contractual language
to the contrary, the remaining provisions of an existing contract between an
MDU owner and a cable company remain enforceable by both parties.
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MINNESOTA DEPARTMENT OF
PUBLIC SAFETY WITHDRAWS REQUEST FOR ISPs TO BLOCK INTERNET TRAFFIC TO ON-LINE
GAMBLING SITES
The Minnesota Department of Public Safety has
withdrawn its demand for several Minnesota ISPs to block consumer access to
internet gambling sites. The state
agency's demand sparked a lawsuit from the trade association representing
internet gaming firms. The gaming trade
association withdrew its lawsuit, when the Department of Public Safety agreed
to withdraw its blocking request to Minnesota ISPs. The Department of Public Safety has said that it will look for
other ways to regulate on-line gaming in Minnesota.
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COMMUNICATIONS LAW NOTES
Julius Genachowski was confirmed this week as
Commissioner and Chairman of the Federal Communications Commission. FCC Commissioner Robert McDowell was also
reconfirmed for another term. Jonathan
Adelstein has left his position as an FCC Commissioner to become the Administrator
of the Rural Utilities Service (RUS), which is part of the U.S. Department of
Agriculture. This leaves thee FCC with
three commissioners, and two vacancies to be filled. President Obama has nominated Mignon Clyburn, a commissioner with
the South Carolina Public Service Commission, and Meredith Atwell Baker, a
former official with the National Telecommunications and Information
Administration (NTIA). The NTIA is the
federal agency responsible for administering the Broadband Technologies
Opportunity Program (BTOP), which is part of President Obama's economic
stimulus package.
Mr. Genachowski has his work cut out for him,
beginning his first term as a Commissioner, and taking over as Chair of the
Commission. The FCC has a number of
important telecommunications dockets pending, including the National Broadband
Plan required by Congress, the IP-Enabled Services docket, universal service
reform, newspaper/TV cross ownership rules, and the Unified Compensation
docket.
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