Honoring Sarah Tran

Sarah Tran, a 2009 magna cum laude graduate of Georgetown and an IPR student, recently received the teacher-of-the-year award from the SMU Law graduating class of 2015.  The class had Sarah during their first semester at law school when she was diagnosed with a reoccurrence of the cancer she first developed while at IPR.  Sarah continued her lectures through Skype from her hospital bed, and weeks later, when she returned to the classroom, received a standing ovation.  Over the next year, Sarah continued teaching more classes, publishing articles, and making presentations at conferences, all while fighting cancer.  She even tried her hardest to finish grading exams in her final days.  Sarah was an extraordinary student her at Georgetown and in IPR and, no surprise, turned out to be an extraordinary professor.

 

This post was written by Professor Hope Babcock

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IPR Files Amicus Brief in Tenth Circuit to Defend the Endangered Species Act

On April 21, the Institute for Public Representation filed an amicus brief on behalf of forty-two Environmental Law Professors in the case People for Ethical Treatment of Property Owners (PETPO) v. U.S. Fish and Wildlife Service (FWS), supporting the defendant federal government’s Constitutional authority to protect the Utah prairie dog under the Endangered Species Act (ESA). The case is currently on appeal in the 10th Circuit, and concerns PETPO’s challenge to a rule that prescribed when and where individuals can “take” the Utah prairie dog, which is listed as a threatened species under the ESA. Bringing suit in the District of Utah, PETPO argued that because the Utah prairie dog resides only in Utah and has no commercial value, the United States has no authority under the U.S. Constitution to promulgate such a rule. This is not the first time that a group has challenged the ESA on constitutional grounds, but the District of Utah is the first court to find the challenge meritorious.

IPR’s brief contended that the Commerce Clause of the Constitution does indeed provide Congress with the authority to legislate to protect intrastate species like the Utah prairie dog. This is because the ESA protects species by regulating economic activities that substantially affect interstate commerce, which United States v. Lopez, 514 U.S. 549 (1995) established as a valid use of Commerce Clause authority. In addition, the brief relied on both the majority and Justice Scalia’s concurrence in Gonzales v. Raich, 545 U.S. 1 (2005) to argue that the Commerce Clause, working with the Necessary and Proper clause, gave Congress authority to protect intrastate species. Nearly 70 percent of all species listed under the ESA reside in only one state; if Congress could not protect these species the ESA’s scheme would crumble. Georgetown Law student Charissa Morningstar (L’15) researched and drafted the brief, under the supervision of graduate teaching fellow/staff attorney Danny Lutz.

IPR student Charissa Morningstar helped draft this post.

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IPR honored by client for working to limit the runaway expansion of digital billboards

The Institute for Public Representation was honored with an award on April 16th at a reception hosted by Scenic America to commemorate the 50th anniversary of both the Highway Beautification Act and Lady Bird Johnson’s Conference on National Beauty. IPR is representing Scenic America, a national nonprofit organization dedicated to preserving and enhancing the visual character of America’s communities, in Scenic America v. U.S. Department of Transportation. The case, currently on appeal before the D.C. Circuit, challenges a Federal Highway Administration (FHWA) ruling allowing for digital billboards with commercial advertising to blight American highways, despite federal prohibitions under the Highway Beautification Act on flashing, moving, or intermittent lighting on billboards. Georgetown Law students Rosalie Winn (L’15), Jason Yan (L’15), and Jonathan Aronchick (L’15) all researched and drafted the appellate briefing, under the supervision of graduate teaching fellow/staff attorney Danny Lutz.

IPR recently completed briefing on the case, filing a reply brief on March 20, 2015 in response to arguments raised by defendants FHWA and the Outdoor Advertising Association of America. Aronchick helped write the opening brief, and Winn and Yan wrote the reply. Both briefs made the case that FHWA ignored the requirements of the Highway Beautification Act and the Administrative Procedure Act when it capitulated to the demands of the outdoor advertising industry and opened the floodgates on permitting digital billboards.

The case offered a learning opportunity for the students involved to wade through complex and unsettled areas of law, including organizational standing and what distinguishes legislative rules from interpretive rules under the Administrative Procedure Act. The students also learned how to adapt to changes in the law during briefing, as an intervening Supreme Court decision, Perez v. Mortgage Bankers Association, struck down a D.C. Circuit decision that had previously played a role in the lawsuit.

This isn’t the first time IPR has been recognized for its work on digital billboards. In 2010, Scenic America honored former IPR student Cristina Stella (L’10) for drafting a petition to to FHWA for rulemaking.

For more about the lawsuit, visit Scenic America’s website at: http://tinyurl.com/pt9gvhf.

Georgetown Law Students Rosalie Winn and Jason Yan helped draft this post.

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IPR and Professor Levitin to File Supreme Court Amicus Brief in Bank of America v. Caulkett

IPR’s Civil Rights/Public Interest section is working with Georgetown Law Professor Adam J. Levitin to prepare an amicus brief that will be filed with the U.S. Supreme Court in Bank of America v. Caulkett. Professor Levitin’s research on the impact of bankruptcy law on mortgage lending is expected to aid the Court in deciding the case, which has important implications for consumers with wholly underwater second-lien mortgages.

Professor Levitin’s data sources and computations are available in this document, which can be accessed via this URL: http://instituteforpublicrepresentation.org/wp-content/uploads/2015/02/Data-sources-and-computations.pdf.

 

 

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IPR and Consumers Union File Comments with the Copyright Office in Support of Unlocking Exemption

Last week IPR helped Consumers Union file comments with the Copyright Office in support of an exemption from the Digital Millennium Copyright Act (DMCA) that would enable consumers to unlock their mobile phones and tablets without risking criminal penalties.

Currently, most wireless carriers lock phones and tablets to their network so that these devices can only be used on one network. In the absence of an exemption, consumers who unlock their own devices may be subject to criminal penalties under the DMCA.

Without a legal right to unlock their devices, consumers must rely on their current carriers to unlock their phones and tablets for them—something carriers often make very inconvenient, even impossible. The proposed exemption would allow consumers unlock their own devices, making it easier to switch carriers and maintain the useful life of  devices.

“Giving consumers the right to unlock their mobile devices would create innovation in the wireless carrier and device marketplaces,” according to the comments. “Imposing DMCA civil and criminal liability on consumers who seek to use their devices on different wireless networks leads to customer lock-in, arbitrary forced purchases of new devices, and the consignment of useful equipment to the scrapheap. Allowing unlocking rebalances the market back in favor of consumers, as they can more easily switch carriers and make choices based on value and service.”

The comments support an unlocking exemption for both mobile phones and tablets since consumers increasingly use them for essentially the same functions such as accessing the Internet or sending and receiving text messages and emails. An unlocking exemption covering both mobile phones and tablets would accurately reflect the growing functional equivalence of these devices in the minds of consumers.

Now that proponents have filed their comments in support of various DMCA exemptions, opponents of the proposed exemptions will have a chance to file comments in opposition by March 27th. Then, supporters of exemptions will have an opportunity to file reply comments by May 1st before the Copyright Office issues its final rule.

Georgetown Law Student Maggie Thomas helped draft this post.

DMCA Exemption for Unlocking Mobile Handsets

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IPR Civil Rights/Public Interest Section Report Fall 2014

During Fall 2014, the Civil Rights/Public Interest section of IPR filed five lawsuits. In federal district court, we filed a retaliation and wage case on behalf of a worker misclassified as exempt from overtime, and terminated by his employer when he complained. Also in federal district court, we filed a FOIA case against the Executive Office of U.S. Attorneys for failing to produce records we requested regarding the use of summary affirmance motions by the US Attorney’s Office for DC. In DC Superior Court, we brought two different wage theft cases, both on behalf of workers employed by DC government contractors or grant recipients. In Prince George’s County, Maryland, we filed a case on behalf of an individual improperly assessed a deficiency under state consumer protection statutes. We have also agreed to represent an individual whose employer denied her the lactation breaks she was entitled to under state and federal law, and another worker whose employer denied her disability and pregnancy accommodations, discriminated against her on account of her national origin, and illegally assessed fees against her in connection with her resignation. We argued two appeals in federal court, one in the DC Circuit in a race discrimination case, and another in the Fifth Circuit in a preemption case. We filed an amicus brief in the DC Circuit in the appeal of a decision holding that the fee-shifting provision of the Individuals with Disabilities Education Act does not apply to prevailing parties represented by appointed counsel, and we filed an amicus brief in the New York Court of Appeals in a case challenging a New York law that discriminates against nonresident attorneys. We initiated work on two amicus briefs to be filed in the U.S. Supreme Court in Spring 2015.

In addition to litigation, our Fall 2014 students successfully represented a client in demanding wages owed by his former employer, and used documents obtained under FOIA to prepare a report exposing government misconduct. Students also analyzed a number of potential cases, including two consumer protection claims, a potential appeal in a sexual harassment case, and a potential race discrimination class action based on reverse red-lining in automobile financing. On behalf of a public interest organization, we analyzed a potential Administrative Procedure Act claim related to the recall of exploding airbags. Our students visited the Consumer Financial Protection Bureau (CFPB) to meet enforcement attorneys and brainstorm on consumer-protection issues, participated in a conference call with CFPB Director Richard Cordray, met with Judge Lohier from the Second Circuit, and participated in moot courts for our own appellate arguments, and those of other public interest groups.

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IPR’s Communications and Technology Section Wraps Up Productive Semester

Students in IPR’s Communications and Technology Law section recently finished an impressive semester in which they advocated for clients on a range of important issues such media ownership, community radio, and children’s online privacy.

Six third-year law students participated in the Communications and Technology Law section this fall, working on a number of projects for IPR’s clients. Below are a few highlights of the students’ work this semester as well as quotes from the students on their experiences at IPR.


Representing local voices and those demanding diversity in license renewal challenge of WWOR-TV in Secaucus, NJ

IPR students Patricia Kim and Greg DiBella helped draft and file two separate administrative appeals (linked here and here) with the Federal Communications Commission (FCC) seeking to overturn an earlier decision that renewed the license of WWOR-TV, which is owned by 21st Century Fox.

IPR’s clients, the Office of Communication, Inc. of the United Church of Christ (UCC) and Voice for New Jersey (VNJ), had each challenged the license renewal on separate grounds back in 2007. UCC’s challenge focused on Fox’s violation of the newspaper-broadcast cross-ownership rule, as the company owns WWOR and another television station in the New York market. VNJ’s challenge argued that WWOR had failed to provide New Jersey residents with important local news and information as required by the Communications Act.

After the FCC’s Media Bureau denied both challenges, the students drafted the appeals, known as Applications for Review, asking that the full Commission reverse the earlier decision. The students also helped draft replies filed in response to Fox’s opposition and attended meetings with Commissioners’ staff reviewing the appeal.

Both Greg and Patricia said that they found working for their clients to be rewarding. Patricia, who represented UCC, said she identified with her clients concerns about a lack of diversity in the New York media market. Patricia said:

Diversity in the news is at the heart of the Commission’s policy goals.  I cannot think of a more important issue, as it is critical to our democracy for American citizens to receive our news from as many diverse and antagonistic sources as possible.

For Greg, who is a New Jersey native, his work with VNJ was about helping his neighbors obtain better news from local broadcasters. He said:

I am grateful to IPR for the opportunity to help citizens from my home state of New Jersey seek the media coverage that their local and state developments deserve. My work helped VNJ petition the FCC to enforce its public interest standard requiring that broadcasters transmit programming responsive to issues of local concern.


Holding companies accountable for violating children’s privacy law

IPR student Camille Fischer drafted and filed a complaint with the Federal Trade Commission (FTC) asking the agency to investigate candy maker Topps for an apparent violation of the federal law protecting children’s online privacy.

The complaint, described more fully in a recent blog post, focused on a marketing campaign in which the candy manufacturer asked children to take photos of themselves wearing its iconic lollipop Ring Pop and post them to Facebook, Twitter, and Instagram with the hashtag #RockThatRock. The children were encouraged to post their pictures in the hopes that the images would be included in a future music video by tween band R5.

The complaint argued that Topps’ campaign violated the Children’s Online Privacy Protection Act (COPPA) by, among other things, collecting and disseminating the personal information of children under 13 without prior consent from their parents.

Camille said she learned more than simply how to draft a complaint, as her experiences at IPR included working with a coalition of consumer groups to build a strong case that would push the FTC to investigate. She said:

This semester at IPR has been the greatest opportunity to learn how to actually practice law. I came in with an interest in privacy and communications law, and ended the semester feeling like I had accomplished something for my client and for the public.


Continuing to help individuals who are deaf and hard of hearing obtain full access to television programming

IPR student Emily Bezhadi spent part of her semester drafting oppositions to petitions filed by several television programmers trying to avoid their closed-captioning obligations.

IPR has represented Telecommunications for the Deaf and Hard of Hearing, Inc. for several years as it seeks to increase access to television programming through closed captioning. The work has often taken the form of opposing television programmers that seek waivers from the FCC to not caption their programming.

Emily helped investigate four petitions that the FCC recently sought comment on and then drafted one of the oppositions IPR filed in December. The work was rewarding because it gave her an opportunity to advocate for those who are deaf and hard of hearing. She said:

It is important that all Americans are equally able to access the myriad of different video programs through closed captioning. I am glad my work with IPR furthered the goal of my clients, TDI, in ensuring that only those petitioners who would be truly burdened by closed captioning should be exempt from the FCC’s requirements.


Increasing disclosure of political ads on television, radio

IPR student Keir Lamont worked with several clients that have been working on increasing the transparency around campaign ads broadcast on television and radio.

The work took several forms. For example, Keir investigated and filed complaints against broadcasters for failing to identify the true sponsor of political ads run on broadcast stations, a follow on to previous efforts to increase transparency of campaign finance.

Keir also worked with clients to further recent efforts that facilitate greater transparency surrounding the entities purchasing political ads. After the FCC’s rules were updated this summer to require that all broadcasters place this information into a file available online, IPR filed a petition for rulemaking with the FCC seeking to expand the requirements to cable and satellite providers.

Keir worked with clients as the FCC sought comments on the proposal, an effort that paid off when the agency announced a proposed rulemaking last week to expand the requirements to cable and satellite providers as well as radio stations.


Helping local community groups create low-power FM broadcast stations

Finally, IPR student Dan Syed worked with a number of community groups that are trying to obtain licenses from the FCC to create hundreds of new local radio stations across the country.

Dan’s work focused on advising applicants who had applied for low-power FM (LPFM) licenses with the FCC in the fall of 2013. After thousands of groups applied, the FCC began sorting through them and determining which groups would receive licenses based on a process that involved groups earning points for, among other things, being locally based.

The goal of the LPFM service is to create a number of community-driven stations in markets across the country that reflect local culture, music, and ideas. Because multiple organizations in communities had applied to broadcast on the same frequency, the groups that were tied had to negotiate among themselves whether they would work together and share a license.

In addition to helping answer questions about the timeshare agreements, Dan also drafted an opposition filed on behalf of several groups seeking a radio license in Philadelphia.

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IPR Files Request with the FTC to Protect Children from Candy Giant The Topps Company, Inc.

On Tuesday December 9th IPR filed, on behalf of the Center for Digital Democracy and a coalition of consumer organizations, a request for investigation with the Federal Trade Commission asking the FTC to investigate and bring enforcement action against The Topps Company, Inc., a candy company, for violating the Children’s Online Privacy Protection Act (COPPA) by collecting and disclosing photos and screen names from children under the age of thirteen through social media.

Topps is a leading candy manufacturer in the US and makes, among other candies, the iconic lollipop Ring Pop. It operates the child-directed website Candymania to market its candies to children (see below). In spring 2014, Topps ran a contest called #RockThatRock. The premise of the contest was that children would take photos of themselves “rocking” their Ring Pop and upload them to Facebook, Twitter, and Instagram with the term “#RockThatRock.” Use of the hashtag created a searchable catalog of all social media posts that contained the hashtag. Topps used that catalog to choose certain photos to put into a music video with the tween band R5.

candymaniaTopps released the music video in June to Candymania and YouTube. The video has been viewed nearly 900,000 times. It includes eighty pictures from the contest, many of which show children that are clearly under the age of thirteen. Topps has continued to use of the photos children submitted even after the contest was over. For example, each Friday, Topps posts a picture along with a screen name on the Ring Pop Facebook page, in a promotion it calls “#RockThatRock Friday.”

Topps’ actions were brought to IPR’s attention by the Center for Science in the Public Interest. Camille Fischer, a third year law student in IPR, investigated and drafted the request for investigation. The request alleges that Topps violated, and continues to violate, COPPA in several ways. The COPPA rule prohibits the operators of websites directed to children from collecting, using, or disclosing children’s personal information without giving notice to parents about these practices and obtaining advance, verifiable parental consent. During and after the #RockThatRock contest, Topps collected two types of personal information from children, photographs and online contact information, by encouraging its child users to go to social media and upload pictures of themselves the hashtag #RockThat Rock. Topps collected this personal information without giving any notice to parents about what would be collected and how it would be used. It also made not effort to obtain advance, verifiable consent from parents.

While Topps has denied that it violated the COPPA Rule, it is important to understand that the COPPA Rule was recently amended to prevent an operator of a child-directed website (such as Candymania) from using third party services to collect information from children on that operator’s behalf. Thus, Topps cannot get out of complying with the COPPA Rule by outsourcing the collection of data from its children users to third parties such as Facebook and Twitter. Moreover, even though these social media services are not intended for use by children, many children do in fact use them. This complaint gives the FTC the opportunity to enforce its recent changes to the COPPA Rule and to protect children in the ever-changing privacy landscape.

IPR’s request for investigation has been covered by media outlets, including The New York Times, The Hollywood Reporter, MediaPost, and multiple consumer advocacy blogs. Angela Campbell, director of IPR’s Communications and Technology Section, was featured in MediaPost stating: “You can’t get out of COPPA by outsourcing the collection of data.” Eric Null, clinical teaching fellow at IPR, was also quoted in The Hollywood Reporter discussing his expectations for the complaint.

Ten advocacy groups signed onto the complaint including, The Center for Digital Democracy, American Academy of Child and Adolescent Psychiatry, Campaign for a Commercial Free Childhood, The Center for Science in the Public Interest, Consumer Action, Consumer Federation of America, Consumer Watchdog, Consumers Union, The Rudd Center for Food Policy and Obesity, and the United Church of Christ Office of Communication, Inc.. IPR has strong ties with many of these groups, and has filed numerous comments and complaints on their behalf.

Georgetown Law student Camille Fischer helped draft this post.

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IPR Ensures Broadcast Programs Remain Accessible to Deaf and Hard of Hearing Individuals

The Institute for Public Representation scored a victory for deaf and hard of hearing individuals last week when the Federal Communications Commission required a programmer to provide closed captions.

The FCC’s order found that Curtis Baptist Church, which airs an hour-long worship program every Sunday on WJBF-TV in Augusta, Georgia, had sufficient financial resources to pay for closed captions. Curtis Baptist Church had filed a petition with the FCC seeking a waiver of the closed captioning requirements, arguing that captioning would be economically burdensome.

Under the Communications Act and FCC rules, all programming broadcast on television must be captioned. The rules allow for exemptions to the captioning requirements, however, in various situations or if a programmer claims that captioning would be economically burdensome.

IPR’s client Telecommunications for the Deaf and Hard of Hearing, Inc. opposed the economically burdensome petition filed by Curtis Baptist Church along with dozens of other petitions filed by other programmers. Last spring, IPR students and a staff attorney drafted the opposition to Curtis Baptist Church on behalf of TDI. Numerous other groups advocating for deaf and hard of hearing individuals also signed on to IPR’s opposition to Curtis Baptist Church.

In the opposition, IPR argued that Curtis Baptist Church had incredible financial resources that would allow it to pay for its captioning expenses without suffering an economic burden.

In the order issued last week, the FCC largely agreed with IPR’s opposition. In analyzing the petition, the FCC compared Curtis Baptist Church’s quoted captioning expenses against its financial resources. Documents provided to the FCC showed that Curtis Baptist Church had profits of $317,550 in 2011 and $437,293 in 2012, compared to estimated captioning costs of $26,000 annually.

The FCC determined that because Curtis Baptist Church’s profits far outstripped its estimated captioning costs, captioning would not be economically burdensome. As a result, Curtis Baptist Church will have to begin captioning its programming by March 2015.

The decision against Curtis Baptist Church is the third order from the FCC this year finding that it would not be economically burdensome for particular programmers to provide closed captions. Because the programs must now be captioned, the FCC’s decision ensures that deaf and hard of hearing individuals will be able to access more content broadcast on television.

 

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IPR and Consumers Union Submit Request to Allow Consumers to Unlock Mobile Devices

Earlier this week IPR helped Consumers Union file a petition with the Copyright Office that would allow consumers to unlock their mobile phones and similar devices without violating the Digital Millennium Copyright Act (DMCA).

Under the proposed exemption, consumers could use their mobile devices on any wireless network they choose, giving them greater options and extending the life of their devices. Currently, device manufacturers and wireless carriers include software on mobile devices that lock them to particular wireless networks.

Arguably, when consumers attempt to get around those restrictions to access other wireless networks, they could be liable for violating the DMCA. The petition argues that the Copyright Office should exempt that behavior from the DMCA because the restrictions unnecessarily limit competition in the wireless marketplace and discourage consumers from reusing or reselling their devices.

“When consumers can unlock their mobile devices, they are empowered to use their devices as they see fit, including taking them to a competing wireless network, reselling them to other consumers, or seeking lower bills from their current carriers,” the petition states. “The adverse effects created by locking mobile devices to particular wireless networks are extensive because, among other things, they limit consumer choice throughout the life of the device, effectively shorten that life, lead to unnecessary electronic waste, and inhibit competition among wireless carriers and mobile device manufacturers.”

The petition calls on the Copyright Office to exempt both mobile phones and other mobile devices, such as tablets, that function in the same way as mobile phones by allowing consumers to send and receive email or text messages, browse the Internet, or use mobile applications.

With the petition submitted, the Copyright Office next plans to put it and all the proposed exemptions it received out for public comment, likely next spring. To read more about other proposed exemptions and the 2015 DMCA rulemaking, click here.

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