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FCC Deregulates DSL, Ends ISP Open Access to Telco Lines:

Following on the Supreme Court’s recent Brand X decision that cable modem Internet access service involves a lightly regulated information service, rather than a regulated common carrier telecommunication service, the FCC today redefined telephone company broadband Internet access (DSL) service as involving information services functionally integrated with a telecommunications component, and then ruled that wireline telephone companies will no longer be required to offer broadband (DSL) transmission service as a regulated common carrier telecom service.  In other words, telephone companies will not be required to provide “open access” line sharing for DSL resellers and other third-party Internet service providers such as Earthlink.  Non-telco ISPs will have a one-year transition period of continued carriage, after which their telephone company host will have the option to offer them DSL carriage on an open access, common-carrier basis, or at private, individually negotiated rates and terms.  The FCC’s stated policy goal in today’s order is to put telco DSL service “on an equal regulatory footing with cable modem service, currently the market leader”, in support of continuing competition between broadband Internet access service providers including cable, wireless, satellite and other networks.  (Report and Order, FCC 05-150, August 5, 2005)

California Bars Discrimination Against Registered Domestic Partners:

The California Supreme Court confirmed this week that “discrimination against domestic partners registered under the Domestic Partner Act in favor of married couples” is prohibited by California law.  Accordingly, same-sex and other couples which have officially registered with the Secretary of State under California’s Domestic Partner Act cannot be treated differently than married couples in the accommodations, facilities and services offered by business establishments in California, under the Unruh Civil Rights Act generally forbidding customer discrimination by businesses (California Civil Code Section 51(b)) unless supported by “legitimate business reasons” such as obtaining payment for services.  The Supreme Court’s ruling will allow plaintiff, a lesbian partner in a registered domestic partnership, to pursue claims that a country club applied its rules against her in discriminatory fashion to deny her the privilege of golfing with her registered partner, a course member.  (Koebke v. Bernardo Heights Country Club, California Supreme Court No. S124179, August 1, 2005)

Partial-Day Absences May Be Charged Against Salaried Employees’ Accrued Vacation

The California Courts of Appeal recently ruled that employers may require employees to use accrued vacation leave to cover partial-day absences, without causing otherwise overtime-exempt employees to become non-exempt under the so-called salary basis test.  The appellate court rejected the argument that requiring vacation use for partial-day absences is equivalent to docking the employee’s pay and therefore converts their overall status to an hourly employee entitled to overtime, rather than an exempt salaried employee.  In doing so, the court found that federal law allows employers to require exempt employees to cover partial-day absences by using vacation time, and nothing in California law is to the contrary.  The court’s analysis cautions that because an exempt salaried employee’s pay still cannot be actually reduced for partial-day absences, without risking conversion of status to an overtime-entitled non-exempt worker, the employer may be obliged to allow partial-day leaves without pay reduction to exempt employees, if occurring at a time when the employee’s accrued vacation balance is already at zero.  (Conley v. PG&E, California Courts of Appeal No. A105832, July 21, 2005)

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