AMC Morphing Violates Programming Agreement:
A New York state Supreme Court ruled this week that television programming channel American Movie Classics violated its programming agreement with a cable television operator by substantially changing the quantity and quality of its programming, diverging from the character and representations of the service as it existed when the 1993 contract was signed. Accordingly, the cable operator licensee was within its contractual rights to cancel its AMC programming contract. In a scenario which has recurred among various programming services or channels, AMC originally targeted a well-defined programming niche, then after achieving valuable scale in its distribution, evolved its content and marketing to broader, mass-market entertainment material. The court’s decision is specific to the facts and contract language at issue in the case, and it is also notable that the New York state “Supreme Court” is not the state’s highest court, so its ruling is not binding precedent in other cases and also may be subject to appeal.
VOIP-E911 Rules Begin July 29, 2005:
The FCC’s recently adopted rules for enhanced 911 capabilities which must be provided by Voice over Internet Protocol services connecting with conventional telephone users, have been published in the Federal Register and take effect beginning July 29, 2005. VOIP customer notification requirements regarding E-911 services take effect July 29, with remaining E-911 requirements later taking effect November 28, 2005. (FCC Public Notice, DAO5-1992, July 15, 2005).
FMLA Leave Requires Employee to Actually “Care For” Family Member:
Employee leave under the federal Family and Medical Leave Act, available to employees “to care for” a family member with a serious health condition, “encompasses both physical and psychological care”, but only to the extent it involves some minimal level of “participation in ongoing treatment.” Accordingly, an employer properly disciplined an employee for taking FMLA leave in conjunction with his wife’s difficult pregnancy, but actually using the time to retrieve a family car out of state while his wife was giving birth. (Tellis v. Alaska Airlines, Ninth Circuit No. 04-35137, July 12, 2005). The decision is generally consistent with California’s parallel state rules on family medical leave (Pang v. Beverly Hospital, Inc., 94 Cal.Rptr.2d 643 (2000).
Cause for Termination Does Not Protect ADA Discrimination Motive, Says Ninth Circuit:
Even though an employer had justification to terminate an employee for error in operating heavy equipment contrary to a formal employer policy, the employee will still have the opportunity to prove a claim that his termination was motivated in part by reaction to his mental illness or retaliation for his requested disability accommodation. The Ninth Circuit decision follows a number of other federal circuits around the country which have decided that ADA blunders need not be the sole reason for an adverse job action, and therefore that if disability discrimination or retaliation can be proven, an employer may be liable even where other valid reasons existed for the job action. (Head v. Glacier Northwest, Inc., Ninth Circuit No. 03-35567, July 6, 2005).
Guide on Reciprocal Compensation Between Phone and Cellular Carriers:
Under recent FCC rule changes, local exchange telephone companies may not impose call termination charges on other carriers based on public tariffs, and instead must do so by agreement with the other carrier, but will have the right to negotiate and arbitrate to obtain such agreements with other carriers including cell phone and other CMRS carriers. The FCC has now published a Small Entity Compliance Guide providing a brief summary of the new rules for such reciprocal compensation agreements between local phone companies and cellular/CMRS providers (FCC Guide, DAO5-2002, July 14, 2005).
No Contractors License, No Pay:
The California Supreme Court has once again underscored California’s strict bright-line requirement that construction contractors performing work in California for which a contractor’s license is required, have no right to enforce contracts or payment for work performed without a required license. After California contractor licensing rules were tightened to eliminate “substantial compliance” as a basis for enforcement by an incompletely licensed contractor, the state Supreme Court has now further decided that if a contractor is not properly licensed during any period while performing work under contract, it is barred from recovering payment for all work performed under that agreement. Accordingly, a contractor which was unlicensed for an 18-day period while furnishing over $1 million of structural steel and services to a customer over the course of nearly a year, cannot recover any payment for any of that work. (MW Erectors, Inc. v. Niederhauser Ornamental and Metal Works, California Supreme Court No. S123238, July 14, 2005).
For those who may have missed it, we recommend the snippet of alarming guitar work shown at the 18 second mark of Michael Angelo Batio’s guitar tapping tutorial video. We enjoyed this link when it appeared in the daily Music & Recording Industry update from our music and intellectual property partner Cyrus Wadia.