In an amicus brief filed with the Supreme Court, the Office of the U.S. Solicitor General (OSG) recommended that the high court refrain from reviewing appellate decisions that pertain to state and local legal requirements that “may” block competitive entry into the telecom market. The OSG, meanwhile, offered the justices the same advice in a second brief addressing last year’s Second Circuit decree that Cablevision’s remote digital video recorder (DVR) system does not directly infringe copyrights held by film studios and broadcast networks. Brought to the high court by Level 3 Communications and Sprint Nextel, the first set of cases center upon the interpretation of Section 253(a) of the 1996 Telecommunications Act, which bars states and local municipalities from enacting any statute or other legal requirement that “may prohibit, or have the effect of prohibiting the ability of any entity to provide any interstate or intrastate communications service.” Although Level 3 and Sprint won a series of district court rulings determining that the language of Section 253(a) encompasses potential harm, both companies lost ground before the appellate courts, which concluded that petitioners must demonstrate that state and local regulations in question result in actual harm and not merely the possibility of such harm. Citing a lack of conflict among appellate courts that have taken up the matter, the OSG told the Supreme Court that “a plaintiff must present evidence of the practical effects of the requirement at issue,” as the word “may” as it appears in Section 253(a) should not be construed to refer to “possible or conceivable effects or a regulation, but rather to deny permission to states and localities to enforce the types of legal requirements that Section 253(a) forbids.” The Cablevision DVR case, meanwhile, concerns an order of the Second Circuit appeals court that lifted a lower court injunction against the Cablevision network DVR service, which the studios and TV networks claimed would facilitate retransmission of broadcast programming in violation of copyright law. In an opinion issued in August 2008, the Second Circuit found that, because Cablevision’s remote DVR service corresponds to that provided to subscribers via standard DVR set-top boxes, “Cablevision’s proposed DVR system would not directly infringe plaintiffs’ exclusive right to reproduce and publicly perform their copyrighted works.” While acknowledging that the issue of network-based recording and playback technologies “raises potentially significant questions,” the OSG advised the justices that “this case does not provide a suitable occasion . . . to address them.”
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Solicitor General advises Supreme Court against review of market entry, remote DVR cases
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