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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IPR Files Brief Supporting FCC Efforts to Lower Prison Phone Bills

Earlier this week, IPR filed a brief on behalf of prisoners and their families supporting the Federal Communication Commission’s recent efforts to lower the costs of prison payphones so that families could speak with their imprisoned loved ones more often.

The brief was filed on behalf of prisoners, prisoners’ family members, and public interest organizations known as the Wright Petitioners.  The petitioners began their efforts to lower prison phone rates in 2000 after Martha Wright, a retired nurse living in Washington, D.C., was charged nearly $100 for calling her then-imprisoned grandson. More than a decade after the groups petitioned the FCC to lower prison phone rates, the Commission adopted interim rules that slashed the cost of a 15-minute phone call, which could cost up to nearly $18, down to under $3.

In fall of 2013, the FCC adopted interim rate caps that prohibited a prison telephone provider from charging more than $0.21 per minute for prepaid calls and $0.25 per minute for collect calls unless the provider justified a higher charge. The FCC also created safe harbor rates — $0.12 per minute prepaid and $0.14 per minute collect — that afforded greater protections to service providers that charged at or below those rates. Additionally, the FCC prohibited prison telephone providers from passing on the cost of kickbacks the companies pay to correctional facilities, known as site commissions, to users of prison telephone services. The FCC also required that certain charges providers bill customers for – known as ancillary fees – be cost-based. These fees include charges to set up an account with a provider, add money to an account, or close an account.

A group of correctional facilities, along with three prison phone providers, known as Inmate Calling Services (ICS) providers, sought review of the FCC’s 2013 rules in the U.S. Court of Appeals for the District of Columbia and asked the court to stay the FCC’s rules. The D.C. Circuit granted a partial stay, blocking the interim safe harbor rates and the cost-based rule from taking effect. The remainder of the rules went into effect in early 2014.

The brief IPR filed on Monday responds to arguments made by both the correctional facilities and ICS providers. Specifically, the groups argued that the Commission exceeded its authority in enacting its interim rules and that the Commission was interfering with the day-to-day administration of state and local prisons facilities by barring site commissions. The groups also argued the Commission did not have authority to regulate ancillary fees.

IPR’s brief responds to both arguments and demonstrates that the Commission’s interim rules were a lawful and reasonable response to the failed prison phone service market. The brief first argues that the Commission did not interfere with prison facility administration because it did not bar site commissions. Instead, the Commission merely prevented ICS providers from passing on the cost of these site commissions to customers of prison phone services. Next, the brief argues that the Commission had broad authority to determine costs and exclude certain expenses ICS providers incur, such as site commissions, from the ultimate rate charged to customers. Finally, the brief argues that even if the effect of the 2013 rules were to bar commissions as ICS and the correctional facilities claimed, such FCC action would still be lawful, as prior cases had established that the Commission does not exceed its authority when its actions have practical effects on entities outside its jurisdiction.

Responding to ICS providers’ second argument, IPR’s brief demonstrates that the plain language of the Communications Act provides the Commission with clear authority over ancillary fees. IPR also argues that the Commission’s ancillary fee regulation prevented ICS providers from offsetting lower rate caps with higher ancillary fees to keep ICS customers’ bills high.

The case is Securus v. FCC, No. 13-1280.

Georgetown Law Student Greg DiBella helped draft this post.

Wright Petitioners Intervenors Brief

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IPR Helps Community Radio Groups Attempting to Get on Air

In a filing this week, IPR supported efforts by a group of community radio applicants that hope to create a low power radio station for a historic neighborhood in Philadelphia.

The applicants, three non-profit organizations from Germantown, Philadelphia, have applied for licenses to operate low power FM (LPFM) radio stations. LPFM stations are community-based, non-commercial stations that have a broadcast radius of about 3 miles, allowing licensees to serve their local communities.

The three organizations IPR assisted – Germantown United, Germantown Life Enrichment Center, and G-town Radio – applied for their LPFM licenses in the fall of 2013 after the Federal Communications Commission opened a window seeking new licensees. Just under 3,000 groups across the country applied for radio licenses, but because space on the FM dial is limited, competition for stations was expected to be fierce. To resolve competing license applications, the Commission created a point system and encouraged applicants that were tied to try to share air time. Groups that agreed to share air time could then aggregate their points and claim the radio license for a particular channel.

Recognizing that only a handful of channels were available on the FM dial in Philadelphia, the three groups each filed separate applications and discussed potentially sharing time at a later date to create a radio station dedicated to serving Germantown. Germantown is a 3.3 square-mile area located in Northwest Philadelphia that is one of the most historically iconic areas in all of the United States; it was the birthplace of the anti-slavery movement and the site of a battle in the American Revolution.

Four other groups from Philadelphia also applied for the same radio channel as the Germantown groups.  Because all the groups had the same number of points under the Commission’s rules, they had to negotiate whether they could share air time. As those negotiations were underway, two of the other groups filed challenges to the Germantown groups’ applications – called petitions to deny – to try to prevent the Germantown applicants from receiving a license.

In the petitions to deny, The Social Justice Law Project of the Philadelphia NAACP, Inc. and Nueva Esperanza, Inc. argued that the Germantown applicants violated Commission rules by tentatively agreeing to work together before applying for LPFM licenses and by failing to disclose overlapping board membership between organizations..

IPR filed an opposition to the petitions on behalf of the Germantown groups demonstrating that they did nothing wrong in trying to secure a radio license for their community. As the opposition describes, the Commission had encouraged local organizations to work together in advance of the application window and endorsed resource sharing, including applicants agreeing to share broadcast studio locations. Additionally, the opposition refuted allegations of improper board member commonality.

Moreover, the opposition showed that many of the factual and legal claims made in the petition were without merit. Each of the Germantown Applicants is an independent non-profit organization with distinct a local mission. Although they each have separate missions, the groups applied for LPFM licenses in the hope of providing educational programming about Germantown’s unique history and culture. The groups all followed FCC rules in applying for licenses.

The FCC must now decide whether to grant or deny the petitions. Should the FCC deny the petitions, the Germantown organizations will have taken an important step toward obtaining an LPFM license and airing programming about Germantown.

Georgetown Law student Dan Syed helped draft this post.

G-Town Consolidated Opposition 10.20.14

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FCC Seeks Comment on Petition for Rulemaking to Extend Online Filing of Public Inspection Files to Cable and Satellite

On July 31, IPR filed a petition for rulemaking on behalf of the Campaign Legal Center, Sunlight Foundation, and Common Cause.  The petition asks the FCC to extend its existing requirement that broadcast television stations  place online the contents of their public inspection files, including records of political advertisements, to cable and satellite providers.   On August 7, the FCC sought public comment on this proposal.

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