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Conference Call summarizes the roughly 15 percent of all non-pauper petitions that are the most likely candidates for certiorari. The Supreme Court’s jurisdiction is almost entirely discretionary, and justices in recent years have annually selected roughly 80 petitions from the approximately 7,500 that are filed. Conference Call is prepared by the law firms Akin Gump Strauss Hauer & Feld and Howe & Russell, which together publish the Supreme Court weblog. Tom Goldstein, who is the head of Supreme Court litigation for Akin Gump, selects the petitions from the docket of non-pauper petitions. Various attorneys for the firms then prepare summaries of the cases. If either firm is involved in a case mentioned in this column, that fact will be disclosed. People love their cell phones. But that affection rarely extends to their service providers. Consumer complaints about wireless service have inspired state legislatures to adopt a variety of regulatory schemes to try to make the industry more accountable. In response to complaints by Minnesotans about their cell phone providers, the Minnesota Legislature in 2004 enacted the Consumer Protections for Wireless Customers statute. According to the state, the law is a “basic consumer protection” measure that requires wireless providers to give customers a copy of their contracts, to provide notice and obtain a customer’s consent before implementing substantive changes to the contract, and to disclose any rate increase or contract extension that could result from a customer-proposed change in service. Unsurprisingly, wireless companies were less than thrilled with the measure. Wireless companies have a strong preference for uniform federal regulation and regarded this basic consumer protection measure as a thinly veiled effort to regulate their rates. Before the law even went into effect, a group of wireless providers filed suit in federal district court, seeking a declaratory judgment that, because it effectively regulated their rates, the law was pre-empted by 47 U.S.C. � 332(c)(3)(A), which prohibits state and local regulation of the “rates charged by” wireless providers. The District Court denied relief, but the U.S. Court of Appeals for the 8th Circuit reversed. It agreed with the providers that, by preventing “providers from raising rates for a period of time,” the Minnesota law’s notice and consent requirements effectively fixed rates and thus the law was pre-empted. In its private conference on Oct. 13, the Supreme Court will consider whether to grant review in that case, No. 05-1159, Hatch v. Cellco Partnership. More than Minnesota’s law could be at stake. Represented by Assistant Attorney General Margaret Chutich, Minnesota argues that certiorari should be granted because the case has “immensely important, far-reaching implications for the sovereign rights of the fifty States and their 184 million wireless customers.” First, according to the state’s brief, the 8th Circuit’s decision is inconsistent with both the text and legislative history of the federal law, in which Congress “expressly preserved the authority of the fifty States to regulate all terms and conditions of commercial wireless service other than �rates charged’ and �entry,’ ” including “ consumer protection matters” such as the notice and consent requirements at issue here. Second, the state disputes the 8th Circuit’s finding that the state notice and consent requirements impermissibly “regulate” “rates.” Requiring consent for a proposed extension in the length of a contract goes only to the terms and conditions of the contract, which federal law expressly permits the state to regulate. And requiring consent for a rate change is not “rate regulation,” the state maintains, because the state does not review the rates for reasonableness or otherwise fix them at a particular amount. The 8th Circuit’s expansive interpretation of what constitutes regulation of “rates charged” threatens not only Minnesota’s statute, the state prophesizes, but any state efforts to protect wireless customers. Represented by Helgi Walker of Wiley Rein & Fielding, Cellco and the other respondents marshal an array of arguments against certiorari. First and foremost, Cellco emphasizes that, as the state itself concedes, the question presented is one of first impression, such that there is no real split among the circuits. The state maintains, however, that the 8th Circuit’s decision conflicts at least “in principle” with the decisions of two other circuits “on the fundamental question of the extent to which Congress preserved the States’ authority to regulate wireless service.” Second, Cellco provides a vastly different — and much rosier — picture of both the scope of the 8th Circuit’s holding and the practices of the wireless industry. Thus, the 8th Circuit’s holding does not strip “the states of their sovereign right to protect wireless consumers,” but instead merely holds that this unique Minnesota law, which is itself scheduled to expire in August 2007, constitutes prohibited rate regulation. The state’s dire prediction that wireless consumers all over the country — who, according to Cellco, are overwhelmingly satisfied with their wireless service — will be left without any “meaningful remedy” will not come to pass, as consumers always have the option to switch carriers or seek relief under other state consumer protection laws that do not implicate rate regulation. Finally, Cellco contends that certiorari is not warranted for the simple reason that the 8th Circuit’s decision is correct on the merits. Relying on two Federal Communications Commission decisions, the 8th Circuit construed federal law as denying the states “any authority” “to regulate . . . the rates charged” by wireless providers to include state efforts to “fix” or “freeze” rates, which, Cellco asserts, is precisely the effect of the Minnesota notice and consent requirements, which provide that the original contract terms apply unless and until a customer affirmatively consents to the proposed changes. Once the court below concluded that the state law “regulates rates,” “the answer to the question of federal preemption was plain.” In an amicus brief filed at the Court’s invitation, the United States joins Cellco in urging the Court to deny cert. Although its arguments largely echo those of Cellco, its recommendation may ultimately prove crucial in the Court’s determination of whether to grant cert, which may be announced as early as Oct. 16; the Court follows the federal government’s recommendation in most of the cases in which it files invitation briefs. — Amy Howe
Other cases up for review include the following: Conference of Oct. 6 • 05-1363, W.R. Grace and Co., et al. v. U.S. (CA9) Whether the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 requires a responsible party to pay the entire cost of an environmental-response action of potentially unlimited scope and duration, undertaken without any consideration of cost or cost-effectiveness, without being allowed to challenge whether all or part of that action was necessary to contain or abate an immediate environmental hazard. • 06-127, FreeEats.com v. North Dakota (S. Ct. of N.D.) Whether a North Dakota statute that restricts the making of prerecorded telephone calls to residents is pre-empted by the Telephone Consumer Protection Act and the implementing rule by the FCC as applied to prerecorded interstate telephone calls that seek to survey the recipients’ political views. • 06-147, At Home Corp. v. Cox Communications, et al. (CA2) Whether statutory insiders may escape liability under � 16(b) of the Securities Exchange Act of 1934 because of a judicial interpretation that establishes the date of creation of a hybrid derivative instrument as the only “sale” date. • 06-167, Woodford v. Remeidio (CA9) Whether an inmate can proceed on a civil rights claim that prison officials retaliated against him for First Amendment expression if the action taken against the inmate objectively served a legitimate penological purpose. • 06-172, Sommers v. Wells Fargo (CA5) Whether bankruptcy-law remedies affecting a third party are barred if a bankruptcy court modifies the automatic stay in effect from 11 U.S.C. � 362 and allows a creditor to pursue state-law claims against the third party. Conference of Oct. 13 • 06-49, Signator Insurance v. Patten (CA4) Whether an arbitral award may be vacated on nonstatutory, merits-based grounds — such as that the arbitrator manifestly disregarded the law or that the award did not draw its essence from the agreement — despite the explicit requirement of 9 U.S.C. � 9 that a court “must” confirm an arbitral award unless the award is vacated or corrected as provided in 9 U.S.C.�� 10 and 11. • 06-223, Drebick, et al. v. City of Olympia (S. Ct. of Wash.) Whether a local government may avoid the “nexus” and “rough proportionality” tests of Nollan v. California Coastal Commission and Dolan v. City of Tigard by imposing development exactions either in the form of “impact” fees or by legislative enactment.

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