A federal indictment charged respondent, then a Tennessee state senator, with accepting money as fees for using his public office to block the extradition of a defendant from Tennessee to Illinois, and for agreeing to introduce state legislation which would enable four persons to obtain master electricians' licenses they had been unable to obtain by way of existing examination processes. The District Court granted respondent's motion to suppress all evidence relating to his legislative activities, holding that as a state senator respondent was entitled to a judicially created evidentiary privilege. The District Court relied on Rule 501 of the Federal Rules of Evidence, which provides in relevant part that "the privilege of a witness . . . shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience." The Court of Appeals affirmed the District Court's recognition of a privilege and its suppression of certain items of evidence; it held that other items of evidence were insufficiently related to the legislative process to be protected by the privilege.
Held : In a federal criminal prosecution against a state legislator there is no legislative privilege barring the introduction of evidence of the legislative acts of the legislator. Pp. 366-374.
(a) Rule 501's language and legislative history do not support respondent's arguments that a speech-or-debate type privilege for state legislators in federal criminal cases is an established part of the federal common law and is therefore applicable through the Rule, or that such a privilege is compelled by principles of federalism. Rule 501 requires the application of federal privilege law in criminal cases brought in federal court, and thus the fact that there is an evidentiary privilege under the Tennessee Constitution which respondent could assert in a state criminal prosecution does not compel an analogous privilege in a federal prosecution. Pp. 366-368.
(b) The historical antecedents and policy considerations which inspired the Speech or Debate Clause of the Federal Constitution do not require recognition of a comparable evidentiary privilege for state legislators in federal prosecutions. The first rationale underlying the Speech or Debate Clause, resting solely on the separation-of-powers doctrine, gives no support to the grant of a privilege to state legislators in federal prosecutions. As to the second rationale underlying the Speech or Debate Clause, that is, the need to insure legislative independence, this Court's decisions on immunity of state officials from suit have drawn the line at civil actions. Cf., e. g., Tenney v. Brandhove, 341 U.S. 367, 71 S.Ct. 783, 95 L.Ed. 1019; O'Shea v. Littleton, 414 U.S. 488, 94 S.Ct. 669, 38 L.Ed.2d 674. Where important federal interests are at stake, as in the enforcement of federal criminal statutes, principles of comity must yield. Recognition of an evidentiary privilege for state legislators for their legislative acts would impair the legitimate interest of the Federal Government in enforcing its criminal statutes with only speculative benefits to the state legislative process. Pp. 368-373.
(c) Congress has not chosen either to provide that a state legislator prosecuted under federal law should be accorded the same evidentiary privileges as a Member of Congress, or to direct federal courts to apply to a state legislator the same evidentiary privileges available in a prosecution of a similar charge in the state courts. In the absence of a constitutional limitation on Congress' power to make state officials, like all other persons, subject to federal criminal sanctions, there is no basis in these circumstances for a judicially created limitation that excludes proof of the relevant facts. P. 374.
6 Cir., 587 F.2d 284, reversed.
Sol. Gen. Wade H. McCree, Jr., Washington, D. C., for petitioner.
James V. Doramus, Nashville, Tenn., for respondent.
We granted certiorari to resolve a conflict in the Circuits over whether the federal courts in a federal criminal prosecution should recognize a legislative privilege barring the introduction of evidence of the legislative acts of a state legislator charged with taking bribes or otherwise obtaining money unlawfully through exploitation of his official position.1 441 U.S. 942, 99 S.Ct. 2159, 60 L.Ed.2d 1043 (1979).
* Respondent Edgar H. Gillock was indicted on August 12, 1976, in the Western District of Tennessee on five counts of obtaining money under color of official right in violation of 18 U.S.C. § 1951, one count of using an interstate facility to distribute a bribe in violation of 18 U.S.C. § 1952,2 and one count of participating in an enterprise through a pattern of racketeering activity in violation of 18 U.S.C. § 1962. The indictment charged Gillock, then a Tennessee state senator and practicing attorney, with accepting money as a fee for using his public office to block the extradition of a defendant from Tennessee to Illinois, and for agreeing to introduce in the State General Assembly legislation which would enable four persons to obtain master electricians' licenses they had been unable to obtain by way of existing examination processes.
Before trial, Gillock moved to suppress all evidence relating to his legislative activities. The District Court granted his motion, holding that as a state senator, Gillock had an evidentiary privilege cognizable under Rule 501 of the Federal Rules of Evidence. This privilege, deemed by the District Court to be equivalent to that granted Members of both Houses of Congress under the Speech or Debate Clause, Art. I, § 6, cl. 1, was limited to prohibiting the introduction of evidence of Gillock's legislative acts and his underlying motivations. The court stated that the privilege is necessary "to protect the integrity of the [state's] legislative process by insuring the independence of individual legislators" and "to preserve the constitutional relation between our federal and state governments in our federal system."
The Government appealed the pretrial suppression order to the United States Court of Appeals for the Sixth Circuit, see 18 U.S.C. § 3731, which vacated the order and remanded for additional consideration. 559 F.2d 1222 (1977). The Court of Appeals noted that although the District Court had expressed its willingness to recognize a legislative privilege, it had not applied the principle to particularize items of evidence.
On remand, the Government submitted a formal offer of proof and requested a ruling on the applicability of the legislative privilege to 15 specifically described items of evidence.3 The offer first detailed the evidence the Government proposed to introduce at trial in support of the count of the indictment charging Gillock with soliciting money from one Ruth Howard in exchange for using his influence as a state senator to block the extradition of Howard's brother, James Michael Williams. Williams had been arrested in Tennessee in November 1974, and was being held as a fugitive from Illinois. According to the offer of proof, in January 1975 Howard met in Memphis with her brother's attorney, John Hundley, who allegedly told her that he had a "friend" who could help her brother. A meeting between Gillock and Howard was arranged by Hundley, and Gillock agreed to exercise his influence to block the extradition for a fee.
In addition, the Government stated it intended to introduce at trial the transcript of a telephone call Gillock made to Howard on March 25, 1975. During that conversation, Gillock allegedly advised Howard that he had delayed the extradition proceedings, and could have blocked them entirely, by exerting pressure on the extradition hearing officer who had appeared before Gillock's senate judiciary committee on a budgetary matter. To corroborate that conversation, the Government indicated it would prove that on March 19, 1975, Gillock attended a meeting of the senate judiciary committee where the same extradition hearing officer who conducted Williams' extradition hearing presented his department's budget request.
Next, the Government recited the evidence it proposed to introduce showing that Gillock used his influence as a member of the Tennessee State Senate to assist four individuals in obtaining master electricians' licenses valid in Shelby County, Tenn. According to the offer of proof, the four contacted Gillock in early 1972. Two weeks later, Gillock advised them that he could get legislation enacted by the General Assembly which would provide for reciprocity in licensing. Under his proposal, a person who received a license in another county could be admitted without a test in Shelby County. The prosecution represented it would offer evidence that Gillock fixed a contingent fee of $5,000 per person, to be refunded if the legislation was not passed.
The Government also represented that it would offer evidence that Gillock introduced reciprocity legislation in the senate and that he arranged for the introduction of a similar bill in the house. The Government further proposed to introduce statements made by Gillock on the floor of the senate in support of the bill. After the bill was passed by both branches of the legislature and forwarded to the Governor, several private persons, including union representatives, allegedly met with Gillock and voiced their opposition to the legislation. The Government intended to prove that Gillock replied that he could not financially afford to withdraw the legislation because he had already accepted "fees" for introducing it. Finally, the Government intended to prove that on April 13, 1972, Gillock moved to override the Governor's veto of the legislation, and stated that it would introduce into evidence any and all statements made by Gillock on the floor of the senate in support of his motion to override.
Based on this offer of proof, the District Court granted Gillock's renewal motion to exclude evidence of his legislative acts under Rule 501. It ruled inadmissible Gillock's official request for an opinion from the Attorney General regarding extradition and the answer to that request, and Gillock's statements to Howard that he could exert pressure on the extradition hearing officer to block the extradition because the hearing officer had appeared before Gillock's legislative committee. Similarly, the court ruled that all evidence regarding Gillock's introduction and support of the electricians' reciprocal licensing bill, his conversation with the private individuals who opposed the legislation, and the Governor's veto letter would be inadmissible.
The Government again appealed the District Court's suppression order. The Court of Appeals by a divided vote held that "the long history and the felt need for protection of legislative speech or debate and the repeated and strong recognition of that history in the cases from the Supreme Court, fully justify our affirming [the District Court] in [its] protection of the privilege in this case." 587 F.2d 284, 290 (6 Cir. 1978). Turning to the scope of the privilege, the court affirmed the suppression of evidence of Gillock's request for a formal opinion from the Attorney General, his participation in the senate judiciary committee, his introduction of the reciprocity legislation, his motion on the floor of the senate to override the Governor's veto, and all the statements he made on the floor of the senate. The other items of evidence were considered to be insufficiently related to the legislative process to be protected by the privilege.
Gillock urges that we construct an evidentiary privilege barring the introduction of evidence of legislative acts in federal criminal prosecutions against state legislators. He argues first that a speech or debate type privilege for state legislators in federal criminal cases is an established part of the federal common law and is therefore applicable through Rule 501.5 Second, he contends that even apart from Rule 501, a legislative speech or debate privilege is compelled by principles of federalism rooted in our constitutional structure.
It is clear that were we to recognize an evidentiary privilege similar in scope to the Federal Speech or Debate Clause, much of the evidence at issue here would be inadmissible. Recently, in United States v. Helstoski, 442 U.S. 477, 489, 99 S.Ct. 2432, 2439, 61 L.Ed.2d 12 (1979), we reaffirmed our holding in United States v. Brewster, 408 U.S. 501, 525, 92 S.Ct. 2531, 2544, 33 L.Ed.2d 507 (1972), that with respect to Members of Congress "[t]he Clause protects 'against inquiry into acts that occur in the regular course of the legislative process and into the motivation for those acts.' " Under that standard, evidence of Gillock's participation in the state senate committee hearings and his votes and speeches on the floor would be privileged and hence inadmissible.
Moreover, the House Conference Committee Report on the Federal Rules of Evidence leaves little doubt that Rule 501 requires the application of federal privilege law in criminal cases brought in federal court.8 H.R.Conf.Rep.No.93-1597, p. 7 (1974). Cf. Wolfle v. United States, 291 U.S. 7, 13, 54 S.Ct. 279, 280, 78 L.Ed. 617 (1934) (the admissibility of evidence in criminal trials in the federal courts "is to be controlled by common law principles, not by local statute"); Funk v. United States, 290 U.S. 371, 54 S.Ct. 212, 78 L.Ed. 369 (1933). Thus, the fact that there is an evidentiary privilege under the Tennessee Constitution, Art. II, § 13, which Gillock could assert in a criminal prosecution in state court does not compel an analogous privilege in a federal prosecution.
Gillock argues that the historical antecedents and policy considerations which inspired the Speech or Debate Clause of the Federal Constitution should lead this Court to recognize a comparable evidentiary privilege for state legislators in federal prosecutions. The important history of the Speech or Debate Clause has been related abundantly in opinions of this Court and need not be repeated. See, e. g., United States v. Helstoski, supra; United States v. Brewster, supra; United States v. Johnson, 383 U.S. 169, 86 S.Ct. 749, 15 L.Ed.2d 681 (1966). Suffice it to recall that England's experience with monarchs exerting pressure on members of Parliament by using judicial process to make them more responsive to their wishes led the authors of our Constitution to write an explicit legislative privilege into our organic law. In statutes subject to repeal or in judge-made rules of evidence readily changed by Congress or the judges who made them, the protection would be far less than the legislative privilege created by the Federal Constitution.
Our cases, however, have made clear that "[a]lthough the Speech or Debate Clause's historic roots are in English history, it must be interpreted in light of the American experience, and in the context of the American constitutional scheme of government rather than the English parliamentary system." United States v. Brewster, 408 U.S., at 508, 92 S.Ct., at 2535. In deciding whether the principles underlying the federal constitutional speech or debate privilege compel a similar evidentiary privilege on behalf of state legislators, the analysis must look primarily to the American experience, including our structure of federalism which had no counterpart in England.
Two interrelated rationales underlie the Speech or Debate Clause: first, the need to avoid intrusion by the Executive or Judiciary into the affairs of a coequal branch, and second, the desire to protect legislative independence. Eastland v. United States Servicemen's Fund, 421 U.S. 491, 502-503, 95 S.Ct. 1813, 1820-1821, 44 L.Ed.2d 324 (1975). Cases considering the Speech or Debate Clause have frequently arisen in the context of a federal criminal prosecution of a Member of Congress and have therefore accented the first rationale. Only recently in such a case, we re-emphasized that a central purpose of the Clause is "to preserve the constitutional structure of separate, coequal, and independent branches of government. The English and American history of the privilege suggests that any lesser standard would risk intrusion by the Executive and the Judiciary into the sphere of protected legislative activities." United States v. Helstoski, 442 U.S., at 491, 99 S.Ct., at 2441. Accord, United States v. Johnson, supra, 383 U.S., at 180-181, 86 S.Ct., at 755-756. The Framers viewed the speech or debate privilege as fundamental to the system of checks and balances. 8 The Works of Thomas Jefferson 322 (Ford ed. 1904); 1 The Works of James Wilson 421 (R. McCloskey ed. 1967).
Apart from the separation of powers doctrine, it is also suggested that principles of comity require the extension of a speech or debate type privilege to state legislators in federal criminal prosecutions. However, as we have noted, federal interference in the state legislative process is not on the same constitutional footing with the interference of one branch of the Federal Government in the affairs of a coequal branch. Baker v. Carr, 369 U.S. 186, 210, 82 S.Ct. 691, 706, 7 L.Ed.2d 663 (1962). Cf. Dombrowski v. Pfister, 380 U.S. 479, 489-492, 85 S.Ct. 1116, 1122-1124, 14 L.Ed.2d 22 (1965) (federal court may enjoin state-court application of a clearly unconstitutional statute).9 Our opinion in National League of Cities v. Usery, 426 U.S. 833, 96 S.Ct. 2465, 49 L.Ed.2d 245 (1976), is not to the contrary. There, we held that a federal statute regulating the wages of the state employees was unconstitutional because it "operate[d] to directly displace the States' freedom to structure integral operations in areas of traditional government functions." Id., at 852, 96 S.Ct., at 2474.
The absence of a judicially created evidentiary privilege for state legislators is not, however, comparable intervention by the Federal Government into essential state functions. First, Gillock's argument, resting on the Tenth Amendment, has no special force with regard to state legislators; on the rationale advanced, state executive officers and members of the state judiciary would have equally plausible claims that the denial of an evidentiary privilege to them resulted in a direct federal impact on traditional state governmental functions. Moreover, we recognized in National League of Cities that the regulation by Congress under the Commerce Clause of individuals is quite different from legislation which directly regulates the internal functions of states. Id., at 840-841, 96 S.Ct., at 2468-2469. Although the lack of an evidentiary privilege for a state legislator might conceivably influence his conduct while in the legislature, it is not in any sense analogous to the direct regulation imposed by the federal wage-fixing legislation in National League of Cities.
"We cannot believe that Congress—itself a staunch advocate of legislative freedom—would impinge on a tradition so well grounded in history and reason by covert inclusion in the general language [of § 1983] before us." Id., at 376, 71 S.Ct., at 788.
"Whatever may be the case with respect to civil liability generally, . . . or civil liability for willful corruption, . . . we have never held that the performance of the duties of judicial, legislative, or executive officers, requires or contemplates the immunization of otherwise criminal deprivations of constitutional rights. . . . On the contrary, the judicially fashioned doctrine of official immunity does not reach 'so far as to immunize criminal conduct proscribed by an Act of Congress . . ..' Gravel v. United States, 408 U.S. 606, 627, 92 S.Ct. 2614, 33 L.Ed.2d 583 (1972)." Id., at 503, 94 S.Ct., at 680 (emphasis supplied).
The Federal Speech or Debate Clause, of course, is a limitation on the Federal Executive, but by its terms is confined to federal legislators. The Tennessee Speech or Debate Clause is in terms a limit only on the prosecutorial powers of that State. Congress might have provided that a state legislator prosecuted under federal law should be accorded the same evidentiary privileges as a Member of Congress. Alternatively, Congress could have imported the "spirit" of Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), into federal criminal law and directed federal courts to apply to a state legislator the same evidentiary privileges available in a prosecution of a similar charge in the courts of the state. But Congress has chosen neither of these courses.
Compare United States v. DiCarlo, 565 F.2d 802 (CA1 1977), cert. denied, 435 U.S. 924, 98 S.Ct. 1487, 55 L.Ed.2d 517 (1978), and United States v. Craig, 537 F.2d 957 (CA7) (en banc), cert. denied, 429 U.S. 999, 97 S.Ct. 526, 50 L.Ed.2d 609 (1976), with In re Grand Jury Proceedings, 563 F.2d 577 (CA3 1977).
Gillock would be entitled to request an opinion from the State Attorney General by virtue of his status as a state senator. Only state government officials, not private attorneys, can secure official opinions. Tenn.Code Ann. § 8-609(b)(6) (Supp.1979).
Gillock makes no claim that state legislators are entitled to the benefits of the Federal Speech or Debate Clause, which by its terms applies only to "Senators and Representatives." See Lake Country Estates, Inc. v. Tahoe Regional Planning Agency, 440 U.S. 391, 404, 99 S.Ct. 1171, 1179, 59 L.Ed.2d 401 (1979).
This is not to suggest that the privilege law as developed in the states is irrelevant. This Court has taken note of state privilege laws in determining whether to retain them in the federal system. See, e. g., Trammel v. United States, 445 U.S. 40, 100 S.Ct. 906, 63 L.Ed.2d 186 (rejection of the antimarital facts privilege).
Compare Powell v. McCormack, 395 U.S. 486, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969) (suit for injunction against individual Members of Congress to require the seating of Representative Adam Clayton Powell barred by the Speech or Debate Clause), with Bond v. Floyd, 385 U.S. 116, 87 S.Ct. 339, 17 L.Ed.2d 235 (1966) (individual state legislators enjoined from depriving Julian Bond of his seat in the Georgia Legislature).
Despite the frequent invocation of the federal Speech or Debate Clause in Tenney, the Court has made clear that the holding was grounded on its interpretation of federal common law, not on the Speech or Debate Clause. See Lake Country Estates, Inc. v. Tahoe Regional Planning Agency, 440 U.S., at 404, 99 S.Ct., at 1179.
Federal prosecutions of state and local officials, including state legislators, using evidence of their official acts are not infrequent. See, e. g., United States v. Rabbitt, 583 F.2d 1014 (CA8 1978), cert. denied, 439 U.S. 1116, 99 S.Ct. 1022, 59 L.Ed.2d 75 (1979); United States v. Mazzei, 521 F.2d 639 (CA3), cert. denied, 423 U.S. 1014, 96 S.Ct. 446, 46 L.Ed.2d 385 (1975); United States v. Homer, 411 F.Supp. 972 (W.D.Pa.1976). See also Anderson v. United States, 417 U.S. 211, 214-215, 94 S.Ct. 2253, 2257-2258, 41 L.Ed.2d 20 (1974). Of course, even a Member of Congress would not be immune under the Federal Speech or Debate Clause from prosecution for the acts which form the basis of the Hobbs Act, 18 U.S.C. § 1951, and RICO, 18 U.S.C. § 1962, charges here. See United States v. Helstoski, 442 U.S. 477, 99 S.Ct. 2432, 61 L.Ed.2d 12 (1979).
Cf. Gravel v. United States, 408 U.S. 606, 627, 92 S.Ct. 2614, 2628, 33 L.Ed.2d 583 (1972) ("[W]e cannot carry a judicially fashioned privilege so far as to immunize criminal conduct proscribed by an Act of Congress or to frustrate the grand jury's inquiry into whether publication of these classified documents violated a federal criminal statute").


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Animal Study Registry was launched as a reaction to the reproducibility crisis that biomedical research has been facing in the past decades. Publications like Ioannidis' proclamation "Why most published research findings are false" (Ioannidis, PLoS Med., 2005 Aug; 2(8):e124) raised public awareness of this matter. In a large survey conducted by Nature, 1500 scientists identified selective reporting as the main reason for irreproducible research (Baker, Nature, 2016 May, 533(7604): 452-454).
Animal Study Registry provides scientists a platform to register their in vivo studies with the intention to minimize selective reporting by capturing an exact study plan prior to the start of experiments. The registration allows reviewers or other scientists to compare the initially registered study plan with the final publication.
Thus, a publication referring to a registered study in the Animal Study Registry appears more reliable and the work flow more transparent. This will not only convince your readers but also editors or reviewers. Including the study registration in the review process of your manuscript makes your results easier to follow for reviewers and editors.
Our questionnaire about study design and statistics helps you to plan your in vivo experiments thoroughly. Since this study plan will be registered, this adds motivation to set all the important parameters for a well-designed study already at an early stage and to stick to the plan.
Have you already tried reproducing published results and realized that decisive details in the method description were missing?
To solve this problem we elaborated a detailed questionnaire that addresses all important method details. This questionnaire will support you to consider all key parameters for your study. If you have to change your method plan after having submitted a registration, you will still be able to state this in the comments, so that your research process becomes fully transparent and easy to follow. We strongly encourage you to explain as well why altering your initial plan was necessary, as for example because of technical problems. Your fellow researches will benefit greatly from this transparent approach.
The mission of the German Centre for the Protection of Laboratory Animals (Bf3R) at the German Federal Institute for Risk Assessment (BfR) is to reduce the number of animal experiments wherever possible and to refine all animal experiments that are not avoidable.
We believe that the incomplete publication of results gained from animal experiments strongly contradicts ethical principles. Animal experiments can only be justified by a gain of knowledge for the society. This reasoning is lost if results remain unavailable for the public. The Animal Study Registry is meant to encourage the publication of all results gained from animal experiments and make research more transparent.
We ask researchers to register their study design including a detailed description of methods and statistical planning. However, it is equally important to enter information about all circumstances that may have impact on the results and the reproducibility of the studies. Those are housing conditions, handling and analgesic treatment of animals. This also aims to raise researchers awareness of the well-being of the laboratory animals they use.
Are you sure that you want to change the date of accessibility?
Note that from that date on the contents of your whole study will be visible for the public.
The Animal Study Registry (ASR) is a service provided by the German Federal Institute for Risk Assessment (BfR).
The BfR attaches great importance to the responsible handling of personal data. We want users to know when which data is collected and used by the BfR.
The BfR operates a website under the domain www.animalstudyregistry.org. On this website, researchers have the possibility to preregister their animal experiments to increase transparency and reproducibility of biomedical research. At the same time, the Animal Study Registry shall give the scientific community the possibility to retrieve information about the preregistered studies. We only process personal data to the necessary extent. The basis on which different data is processed depends on the purpose for which the data is required.
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At the BfR, personal data is processed in accordance with the European General Data Protection Regulation (GDPR), the German Telemedia Act (TMG) and the German Federal Data Protection Act (BDSG).
Provided the BfR obtains consent from the person concerned to process their personal data, Art. 6 Para. 1 lit. a GDPR serves as the legal basis. Consent can be revoked at any time with future effect. This also applies to revoking consent that was given to us before the GDPR came into effect, i.e. before 25 May 2018.
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Each time a user accesses our web pages and each time a file is opened, data on this process is temporarily processed in a log file on the web server.
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The federal Telephone Consumer Protection Act (TCPA; 47 U.S.C. § 227) and its implementing regulations (47 C.F.R. § 64.1200) regulate the use of automatic telephone dialing systems (“ATDS”) and artificial or prerecorded voices (“prerecorded messages”) in telephone communications. Generally speaking, the TCPA prohibits using an ATDS or prerecorded message to contact cell phones, and prerecorded telemarketing messages to contact residential phones, unless the recipient has provided and not revoked “consent” to receive the call/text. This FAQ provides an overview of the TCPA’s requirements. Because every type of calling campaign raises different concerns and the TCPA is significantly more complicated than can be presented here, M&S recommends that businesses consult with an experienced TCPA attorney before conducting any type of calling campaign.
An ATDS is “equipment which has the capacity to store or produce telephone numbers to be called, using a random or sequential number generator, and to dial such numbers.”  The FCC has held that a predictive dialer also constitutes an ATDS. When determining whether a system is an ATDS, the FCC and courts often focus on whether it has “the capacity to dial numbers without human intervention.” For example, if a representative must click to dial each number, then the system may not be an ATDS because human intervention is required for dialing each number.
In 2015, the FCC held that “the capacity of an autodialer is not limited to its current configuration but also includes its potential functionalities.” If autodialing features can be activated or deactivated within the system, or if autodialing features can be added through software changes or updates, the FCC considered such features as part of the system’s capacity and, therefore, relevant when determining whether the system is an ATDS. On March 16, 2018, the U.S. Court of Appeals for the D.C. Circuit vacated the FCC’s potential functionalities test. The Court noted several conflicting views the FCC has taken, and had specific concerns that the overbreadth of the Agency’s interpretation could result in the common smartphone being considered an ATDS. The Court did not, however, issue a new interpretation, and consequently we have seen conflicting rulings by lower courts as we await the FCC’s re-interpretation (for example, whether a predictive dialer is an ATDS).
What Consent is Required for Telemarketing Calls?
Telemarketing or advertising calls made using an ATDS require prior express written consent (“PEWC”). Both the FCC and courts have made it clear that these terms are to be construed broadly and that a sale need not occur during the telephone call for it to be a telemarketing call or a call that introduces an advertisement. Likewise, dual-purpose calls (i.e. calls made for both non-solicitation and solicitation purposes) are considered telemarketing calls under the TCPA. If a call is motivated in part by the desire to achieve a future sale, the call is likely to be deemed a telemarketing call regardless of whether the sale takes place during the initial call, a future call, or a subsequent in-person meeting/transaction.
PEWC means an agreement, in writing, bearing the signature of the person called that clearly and conspicuously discloses that the person authorizes the seller to deliver or cause to be delivered telemarketing calls using an automatic telephone dialing system or an artificial or prerecorded voice to a specified telephone number. Furthermore, the person must be informed they are not required to sign the agreement, or agree to enter into such an agreement, as a condition of purchasing any property, goods, or services.
Although the agreement must be in writing and include the call recipient’s signature, it does not need to be in a particular form or format because the FCC recognized, pursuant to the E-SIGN Act, consent obtained via an “email, Web site form, text message, telephone keypress, or voice recording” is sufficient so long as the other requirements (e.g. mandatory disclosures, identification of the phone number, clear authorization by the person providing consent, etc.) are met.
What Consent is Required for Non-Telemarketing Calls?
The FCC’s broad language in discussing the express consent consumers provide by releasing their telephone numbers is important. The FCC could have limited the scope of the express consent to the specific purpose(s) for which the consumer provided his/her number (e.g. to be contacted when an item is ready to be picked up); however, the only limits placed on this method of obtaining PEC were: (1) the call recipient must have provided the number to the business directly or via an intermediary (i.e. capturing it via caller ID or from a third party is not sufficient); (2) there is no express consent if the call recipient provided “instructions to the contrary” (i.e. indicated that he/she doesn’t want to be contacted at that number); (3) the call must be for “normal business communications;” and (4) the call must be closely related to the purpose for which consent was given. As recently as 2015 the FCC reiterated its PEC standard.
What are Special Considerations for Prerecorded Messages?
The TCPA requires that a caller have PEWC before calling a consumer’s wireless or landline number using a PRM for telemarketing purposes. All telemarketing prerecorded messages must include multiple identity and purpose disclosures, provide a phone number for Do Not Call requests and an automated interactive voice or key-press operated opt-out mechanism. Lastly, while the TCPA may not heavily regulate non-telemarketing prerecorded messages beyond ATDS requirements, several states restrict the use of prerecorded messages and automatic dialing and announcing devices.
Who Must Comply with Do Not Call Laws?
In 2003, the Federal Trade Commission and FCC jointly issued rules that together created the National Do Not Call Registry (“DNC Registry”). Callers are generally prohibited from calling consumer numbers listed on the DNC Registry for telemarketing purposes. Telemarketers must download and scrub against the DNC Registry at least every 31 days unless an exemption applies. In order to call a consumer on the DNC Registry, the telemarketer must have either (a) PEWC from the consumer or (b) an Established Business Relationship (“EBR”) with the consumer. The term EBR includes business relationships where the consumer has entered into a transaction with the seller within the previous 18 months (“Transactional EBR”) or inquired about the seller’s goods/services within the previous 3 months (“Inquiry EBR”). Federal DNC laws do not apply to business-to-business calls (except the sale of nondurable office or cleaning supplies). Individual states may have more restrictive requirements.
Businesses that conduct telemarketing must also maintain an internal company-specific DNC list. In fact, no business may initiate any telemarketing call without having “instituted procedures for maintaining a list of persons who request not to receive telemarketing calls made by or on behalf of that [business].” Those procedures must include, at a minimum, a written DNC policy that complies with legal requirements and training of personnel in the use of the DNC list. Although the DNC regulations only require that company-specific DNC requests be honored for 5 years, many companies choose to honor the requests indefinitely for customer service purposes. Calls to consumers that previously made a company-specific DNC request are prohibited even if the seller has an EBR with the consumer or the consumer provided PEWC for such calls prior to making a DNC request.
The FCC can seek up to $16,000 per violation, but the real penalty for noncompliance comes from private plaintiff class actions. The TCPA permits private individuals who received calls/text in violation to seek up to $500 per communication ($1,500 for willful or knowing violations). In the past several years the number of TCPA cases filed in federal courts has increased dramatically and settlements have reached over $75 million.
I Want to Initiate a Calling Campaign. What Should I Do?
Before conducting a calling or texting campaign, seek the advice of skilled TCPA counsel. The TCPA and other state and federal teleservices regulations form a complicated structure that requires specific knowledge and business acumen to successfully navigate.
*Disclaimer: This article is intended to provide a general overview of a topic area and is not legal advice. If you need legal advice, please contact an M&S attorney to schedule a consultation. Post updated May 7, 2018.
 47 USC § 227(a)(1); see also 47 C.F.R. § 64.1200(f).
 See FCC 07-232 at p. 8.
 In re Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, Declaratory Ruling and Order, CG Docket No. 02-278, WC Docket No. 07-135, FCC 15-72 (July 10, 2015) at ¶ 16 (emphasis added).
 Id. at ¶ 16 n. 63.
 77 Fed. Reg. 34233 (June 11, 2012).
 The “normal business communications” language is mentioned in Footnote 57 of the 1992 Report and Order.
 16 C.F.R. § 310.4(b)(1)(iii)(B)(ii); 47 C.F.R. §§ 64.1200(c), (f)(14).
 16 C.F.R. § 310.2(o); 47 C.F.R. § 64.1200(f)(5).
 See 16 C.F.R. § 310.4(b)(1)(iii)(A); 47 C.F.R. § 64.1200(d).


On June 28, 2018 the Supreme Court granted a petition for certiorari to determine when “registration of [a] copyright claim has been made” within the meaning of 17 U.S.C. § 411(a). Lower courts are split in deciding whether “registration” means when the copyright holder delivers the required application, deposit, and fee to the Copyright Office or only once the Copyright Office acts on that application.
Fourth Estate Public Benefits Corporation is a news organization that produces online journalism, often licensing articles to websites and retaining the copyright to the articles. Wall-Street.com is a news website that obtains licenses to a number of articles produced by Fourth Estate. The license agreement in question required Wall-Street to remove all of the content produced by Fourth Estate from its website before Wall-Street cancelled its account. When Wall-Street cancelled its account with Fourth Estate, it continued to display Fourth Estate articles.
Fourth Estate filed a complaint for copyright infringement pursuant to 17 U.S.C. § 501 against Wall-Street.com, alleging that Fourth Estate had filed “applications to register [the] articles with the Register of Copyrights.” However, the complaint did not specify if the Register of Copyrights had yet to act on the application. Wall-Street.com moved to dismiss the complaint, arguing that the Copyright Act permits a suit for copyright infringement only after the Register of Copyrights approves or denies an application to register a copyright.
The lower court, the Court of Appeals for the Eleventh Circuit, held the requirements of § 411(a) to be met only once the Copyright Office acts on that application. Other circuits have concluded that registration occurs when the owner files the application with the Copyright Office. The United States Copyright Office joined a CVSG brief filed by the U.S. solicitor general, which argued that based on the text, structure, and history of the Copyright Act, a copyright infringement suit may not be filed until the Register of Copyrights has either approved or refused registration of the work.
The brief argues that the plain text of § 411(a) “imposes a precondition to filing a claim” of infringement, which can be satisfied via registration “only when the Register has approved an application” or when the registration has been rejected. Further, the brief notes that Petitioner’s interpretation of the Copyright Act is either mistaken, or “subverts the Congressional purpose” of the third sentence of § 411(a), which permits the Register, after refusing registration, to become a party to civil actions with respect to the issue of registerability. Finally, it points out that other provisions of the Copyright Act reinforce the court of appeals’ interpretation, as well as the history of the Copyright Act.
The Copyright Act of 1909 stated that “[n]o action or proceeding shall be maintained for infringement of copyright in any work until the provisions of this Act with respect to the deposit of copies and registration of such work shall have been complied with.” Courts subsequently interpreted that language as “requiring dismissal of any infringement suit that was filed before the owner had obtained a certificate of registration, even if the proper deposit had been made.” Even after registration had been refused, a copyright owner was previously required to obtain a writ of mandamus compelling the Register to grant registration of its copyright before instituting an infringement suit. This rule was the backdrop for § 411(a) of the 1976 Act.
There are practical consequences of the Supreme Court’s decision. If the “application” approach is adopted, the Copyright Office will no longer play a mandatory role in the road to litigation. While a plain reading of the Copyright Act may indicate registration is not required, it should be. The Copyright Office provides invaluable guidance to the courts regarding copyrightable subject matter due to years of experience.
A further investigation into Fourth Estate, as well as its effect on the registration process and the Copyright Office, may be found in a forthcoming article written by University of Kentucky College of Law Professor Brian L. Frye and student Nicole E. Pottinger.
 Online Content Manager, Kentucky Law Journal. Candidate for J.D. 2019, University of Kentucky College of Law; B.A. Centre College, 2016.
 Section 411(a) allows a copyright holder who filed an application for registration to file an infringement suit if “registration has been refused.” 17 U.S.C. § 411(a).
 Fourth Estate Pub. Ben. Corp. v. Wall-Street.com, LLC., 856 F.3d 1338, 1339 (2017).
 See Cosmetic Ideas, Inc. v. IAC/InteractiveCorp, 606 F.3d 612 (9th Cir. 2010) (following the “application” approach, which requires a copyright owner to plead that he has filed the appropriate documents before filing a suit for infringement); see also Positive Black Talk Inc. v. Cash Money Records Inc., 394 F.3d 357, 365 (5th Cir. 2004), abrogated in part by Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154 (2010) and Action Tapes, Inc. v. Mattson, 462 F.3d 1010 (8th Cir. 2006).
 The Supreme Court, when deciding whether it should grant certiorari in a case, thinks the view of the federal government would be relevant or useful, will call for the views of the Solicitor General (“CVSG”). The U.S. solicitor general will then file a brief in the case expressing the views of the government. Glossary of Supreme Court Terms, ScotusBlog, http://www.scotusblog.com/reference/educational-resources/glossary-of-legal-terms/.
 Brief for the United States as Amicus Curie at 13, Fourth Estate Pub. Ben. Corp. v. Wall-Street.com, LLC, 138 S. Ct. 720 (2018) (No. 17-571) (citing Reed Elsevier, Inc., 559 U.S. at 166).
 “But if Congress had intended [for the copyright owner to notify the Register of litigation if the Register refuses registration while the litigation is ongoing], it could have required the copyright owner to provide notice to the Register in order to ‘maintain’ or ‘continue with’ the suit,” rather than “institute.” Id. at 15.
 See generally 17 U.S.C. §§ 408(f)(2)–(3), 410(d), 411(a).
 Act of Mar. 4, 1909, ch. 320, § 12, 35 Stat. 1078.
 Lumiere v. Pathe Exch. Inc., 275 F. 428, 430 (2d Cir. 1921).
 Brief for the United States as Amicus Curie at 6, Fourth Estate Pub. Ben. Corp. v. Wall-Street.com, LLC, 138 S. Ct. 720 (2018) (No. 17-571).
 Reply Brief for Petitioner at 6, Fourth Estate Pub. Ben. Corp. v. Wall-Street.com, LLC, 138 S. Ct. 720 (No. 17-571).


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According to the Energy Information Administration (EIA), U.S. petroleum inventories (excluding SPR) fell by 6.9 million barrels (mmb) last week. They stand about 52 mmb lower than the rising, rolling 5-year average and are about 149 mmb lower than a year ago. However, comparing total inventories to the pre-glut average (end-2014), stocks are 127 mmb above that average.
Commercial crude stocks fell by 2.6 mmb, and SPR stocks were unchanged last week. Gasoline stocks fell by 1.7 mmb, and distillate stocks fell 2.0 mmb. Primary demand dropped 256,000 b/d to average 20.675 million barrels per day (mmbd).
The EIA estimated (using its model, click here for presentation) that U.S. crude production averaged 10.407 mmbd, last week, a 26,000 b/d increase from the prior week and new record high. Production averaged 10.360 mmbd over the past four weeks, up 14.0 % v. a year ago. In the year-to-date, crude production averaged 10.141 mmbd, up 12.6 % v. last year.
I have previously noted in an article how the “Other Supply,” primarily natural gas liquids and renewables, are integral to petroleum supply. The EIA reported a 51,000 b/d increase last week. The 4-week trend in “Other Supply” averaged 6.210 mmbd, up 10.6 % over the same weeks last year. In YTD, they are 9.5 % higher in 2018 v. 2017.
Crude production plus other supplies averaged 16.570 mmbd over the past four weeks, an all-time-high record.
Total crude imports fell by 508,000 b/d last week to average 7.077 mmbd last week. This figure was below the 4-week trend of 7.487 mmbd, which was off 4.8 % from a year ago.
Net crude imports fell by 594,000 b/d because exports rose 86,000 b/d to average 1.573 mmbd. Over the past four weeks, crude exports averaged 1.501 mmbd, 108 % higher than a year ago. Based on the recent spread between the OPEC Reference Price (ORB) and WTI, exports should be headed much lower in the weeks ahead.
U.S. crude imports from Saudi Arabia fell by 29,000 b/d last week to average 643,000 b/d. Over the past four weeks, Saudi imports have averaged 658,000 b/d, off 49.6 % from a year ago.
Demand for crude at refineries rose by 410,000 b/d last week to average 16.777 mmbd. Over the past four weeks, crude inputs averaged 16.240 mmbd, 4.1 % higher than a year ago. In the year-to-date, inputs averaged 16.367 mmbd, up 3.3 % v. a year ago.
Over the past four weeks, crude oil supply exceeded demand by 30,000 b/d.
Commercial crude stocks are now 132.7 million barrels lower than a year ago.
Given the recent net product stock draws, product demand has exceeded supply by 557,000 b/d.
Total U.S. product stocks at 763 mmb are 44 million barrels lower than a year ago.
Product exports dropped by 169,000 b/d last week, averaging 4.993 mmbd. This figure is above the 4-week trend of 4.821 mmbd, which in turn is 2.1 % lower than a year ago. In the year-to-date, exports averaged 4.834 mmbd, off 0.9 % from a year ago.
Net gasoline exports decreased by 657,000 b/d to average 864,000 b/d over the past four weeks.
Total petroleum demand averaged 20.487 mmbd over the past four weeks, up 4.9 % v. last year. In the YTD, product demand averaged 20.600 mmbd, up 5.2 % v. the same period in 2017.
Gasoline demand at the primary stock level fell by 319,000 b/d last week and averaged 9.276 mmbd over the past four weeks, up 1.9 % the same weeks last year. In the YTD, it reported that gas demand is up 4.4 % v. a year ago.
Distillate fuel demand, which includes diesel fuel and heating oil, rose 85,000 b/d last week, averaging 3.899 mmbd over the past four weeks, down 4.5 % v. the same weeks last year. In the YTD, demand is up 2.8 % v. a year ago.
Jet fuel demand is up 4.8 % over the past four weeks. In the YTD, demand was 4.4 % higher v. 2017.
Gasoline stocks are now 0.4 mmb lower than a year ago, ending at 243.1 mmb.
Distillate stocks are 24.3 mmb lower than a year ago, ending at 131.0 mmb.
A rise in crude demand at refineries combined with a drop in crude imports produced the unexpected drop in crude stocks. At the same time, crude exports remained high. Net crude and product imports averaged just 2.4 mmbd last week, off 2.6 mmbd v. the same week last year and more than one mmbd from the trend this year.
The market's bullish reaction was due to the impression that crude refinery turnarounds appear to be ending early, the stock build this season was small and appears to be ending. But that may not, in fact, be true. Crude exports should be dropping due to the arb to Asia closing a number of weeks ago. If the import/export trends correct in the weeks ahead, then stocks should rise further.
Check back to see my next post!
Disclosure: This contributor does not own any stocks mentioned in this article. This article is the opinion of the contributor themselves. The above is a matter of opinion provided for general information purposes only and is not intended as investment advice. This contributor is not receiving compensation (other than from INO.com) for their opinion.
China Retaliates By Slapping Tariffs On U.S.

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§ 3-357.3 Removal of snow and ice from sidewalks and points of egress.
§ 3-357.4 Dumping of snow and ice or refuse on roadway.
§ 3-357.5 Depositing snow or refuse from sidewalks on cartway; exception.
§ 3-357.6 Breaking paving by pounding weights.
§ 3-357.7 Obstruction on or over sidewalks; exceptions.
§ 3-357.8 Containers for flammable products prohibited in streets.
Burning on streets: see § 6-309.9.
Deposit of rubbish on streets: see § 9-303.5A.
Polluted water running over streets or sidewalks: see § 6-311.8.
Refuse receptacles not to be kept on streets or sidewalks: see § 6-309.8.
Street opening, cutting and excavating: see Ch. 9-103.
Street vendor licensing: see § 5-305.3.
"Cartway" means that portion of a highway lying between the curblines thereof.
Editor's Note: Former § 3-357.2, Dropping debris or refuse from vehicles, which derived from Ord. No. 36-1954, was repealed at time of adoption of Code (see Ch. 1-303). See now Ch. 6-307, Littering on Public and Private Property.
The owners, tenants, occupiers and all others having charge, control or supervision of any vacant lots, lands, houses, stores, buildings, and all other premises fronting on any public street or highway in the City shall clean or remove, or cause to be cleaned or removed, from the sidewalk in front of or along the subject property and from a structure's primary point of egress to the public sidewalk in a continuous path not less than two feet six inches in width all the snow, ice, hail, or sleet thereon fallen or formed within 24 hours after the same shall have ceased to fall or to be formed.
It shall be unlawful for any person or persons to deposit or dump, or cause to be deposited or dumped, within the lines of any cartway any snow, ice or refuse of any kind which has been gathered or removed from beyond the lines of any public highway.
It shall be unlawful for any person or persons to deposit or dump, or cause to be deposited or dumped, within the lines of any cartway any snow, ice or refuse of any kind which has been gathered or removed from any sidewalk adjacent thereto; provided, however, that this section shall not apply if the aforesaid sidewalk is three feet or less in width.
No person, firm or corporation engaged in breaking up or removing the paving laid upon any of the streets or sidewalks of the City or making excavations therein shall break up or remove such paving by means of dropping or pounding weights thereon.
This chapter shall not be construed to prohibit the use of sledgehammers by manual labor or automatic hammers operated by compressed air.
The construction, maintenance or placing of any permanent or temporary structure, encroachment, advertising sign, or obstruction upon or over any sidewalk of any public street in the City, other than those permitted by the Building Code and the Zoning Code, is prohibited; provided, however, that the owners or occupants of properties abutting a sidewalk may place temporary obstructions, such as tables and display racks, upon the sidewalk immediately abutting such property or upon the sidewalk abutting any other property with the permission of the owner or occupant thereof, so long as such obstruction or encroachment does not interfere with the rights of the public to traverse said sidewalk safely and conveniently. The owner or occupant of the property abutting the sidewalk may, upon obtaining a permit therefor from the Bureau of Codes Enforcement, place tables and chairs upon the sidewalk immediately abutting such property from which food and beverage may be dispensed, provided that the same shall not interfere with the rights of the public to traverse the sidewalk safely and conveniently and that such establishment is operated in full compliance with all statutes, ordinances and applicable regulations.
If prior approval is first obtained from the Codes Administrator, any ornamental light or standard, telephone booth, or newsstand which is removable each day from the sidewalk, decorative flowers or shrubbery, if placed within two feet of the building line on a sidewalk 10 feet or more in width, and boxes or other receptacles for the collection of trash and rubbish may be constructed, maintained or placed upon a sidewalk if the same do not interfere with the right of the public to safely and conveniently traverse such sidewalk.
Any person, firm or corporation being the owner, lessee, or in possession of any obstruction or encroachment upon a sidewalk within the City in violation of the provisions of this section shall remove the same immediately upon receipt of notice of such violation from the Codes Administrator or designee. Upon failure to immediately remove such obstruction or encroachment, any such person, firm or corporation shall be subject to prosecution. The Chief of Police or his or her designee is hereby authorized and directed to promptly cause such obstruction or encroachment to be removed.
The installation or construction within the lines of any street or public highway of any tank, container, or other device for the storage of gasoline, fuel oil, motor oil, or similar products is hereby prohibited.
Any person who violates the provisions of § 3-357.3 shall be subject to the issuance of an immediate non-traffic summary citation.

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