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DC Home Rule almost had... Congress decide all criminal laws

This is part 5 in a series on the legislative history of the 1973 Home Rule Act. See previous parts on the act's bipartisan support, nonpartisan elections, the police chief, and judges.

Congress decided not to keep the police chief federally appointed when it gave the District home rule, but Congress did initially restrict DC's ability to change its own criminal laws.


Photo by much0 on Flickr.

The Home Rule Act forbade the DC Council from changing the criminal code for the first 2 years. After that, Congress tried to make it eaiser for it to overturn any criminal law change, but the courts took away that perogative in 1985.

Yes, while Congress had no problem with DC setting the laws for licensing barbers or home construction or parking, it was very nervous about letting DC change criminal offenses. Why?

A letter from critics of Home Rule fretted that the DC Council "would be able to alter, amend, repeal or supersede virtually any law including Titles 22, 23, and 24 of the criminal code. (p. 1568) The majority (Democratic) House staff responded in their own memo:

The above statement is a prime example of an assumption of bad faith on the part of duly elected official sunder the bill. It is logical to assume that the local elected government will have just as much stake in maintaining peace, law, and justice as the presently appointed officials have in maintaining the integiity of the city government. (1645)
Nonetheless, the Congressmen in charge of the DC committee acceded to this concern in their committee print, the version of the bill they brought to the floor that tried to respond to some of the opponents' arguments. In that version, the titles of the DC Code involving crimes, criminal procedure, and treatment of prisoners were part of the list of laws the Council can't legislate, such as changing the height limit or imposing a commuter tax.

The House passed the bill with a prohibition on changing criminal laws. That would have meant that Congress would be the one still setting any criminal laws in DC. The Senate version did not restrict this, and the conference committee compromised by limiting this authority for only the first 2 years after Home Rule. (2361)

One-house veto lasted until Chadha and Gary

Congress didn't just let DC have complete control over the criminal laws after that. Instead, it set up a "one-house veto." Normally, to block a DC law, both houses of Congress have to pass a joint resolution, and the President has the ability to veto that, just like with a bill. That sets a fairly high bar for the federal government to overturn a DC law.

With the criminal code, Congress decided to make it easier. They added a provision that a change to criminal law will not take effect even if only one house passes a resolution against it. This one-house veto also applied to an act changing the Mayor or councilmembers' pay. (2917)

This provision lasted until 1983, when something got in the way: the US Supreme Court's decision in Immigration and Naturalization Service v. Chadha, 462 U.S. 919 (1983). There had also been a one-house veto in place for deportation decisions: the INS could hold off on a deportation proceeding for 7 years if deportation would create "extreme hardship."

The INS used this discretion to help Jagdish Rai Chadha, who had overstayed a student visa. He had been born in Kenya to Indian parents and had a British passport, but neither India nor Britain would let him back into their nations. The House used its one-house veto to block the leniency, but the Supreme Court held that since the Constitution specifies a set process for Congressional action including bicameralism (both houses must pass the same bill or resolution) and presentment (it goes to the President for the chance to veto), Congress can't decide to elect a different process for some actions.

The decision had far-reaching consequences besides INS procedures: it ended every one-house veto, including the ones in the Home Rule Act. In Gary v. United States, 499 A.2d 815 (1984), the DC Court of Appeals (DC's highest state court) struck down the one-house veto.

Therefore, District residents enjoy the ability to elect officials who can change the criminal laws as needed. A sympathetic young Indian/British immigrant led to Congress' power over the District growing a little less in a significant area.

All numbers in parentheses refer to page numbers in Home Rule for the District of Columbia, 1973-1974, Background and Legislative History of H.R. 9056, H.R. 9682, and Related Bills Culminating in the District of Columbia Self-Government and Governmental Reorganization Act, Approved December 24, 1973 (Public Law 93-198), Serial No, S-4, US Government Printing Office, December 31, 1974.

Government


Transit agencies may get reprieve from patent troll

Any transit agencies around the nation who haven't yet gotten sued by patent troll ArrivalStar might be in luck. The Electronic Frontier Foundation (EFF) has found prior art which may prove the patent invalid, and has asked the US Patent and Trademark Office to reexamine the patent.


TriMet real-time arrival sign. Photo by sfcityscape on Flickr.

The owner of the patent controls two offshore firms, ArrivalStar and Melvino Technologies, whose sole business is to file lawsuits against transit agencies, airlines, department stores, and anyone else who makes or uses a product that tracks vehicles in real time. Meanwhile, they don't actually make any products that track vehicles.

ArrivalStar and Melvino have sued multiple Northern Virginia governments and transit agencies, the Maryland Transit Administration, the MBTA, the Port Authority of NY and NJ, Chicago's Metra, Portland's TriMet, Seattle's King County, Albuquerque, Cleveland, DFW Airport, Macy's, Ford, Gymboree, United Airlines, and many more for a total of over 100 lawsuits.

Agencies have settled for tens of thousands of dollars of public money to avoid spending even more to fight the lawsuit and try to invalidate the patent.

It's unclear whether anyone can, or should be able to, patent such a broad concept as tracking vehicles with computers. It's not some kind of a unique idea that only came from years of painstaking research, which nobody else thought of or would have. However, that's not exactly the standard for patents under current law, and the patent office often ends up granting unreasonably broad patents.

You can't patent something if someone already invented it and published about it, and that's what EFF alleges. They found a US Department of Transportation technical report from 1992 that describes just the kind of vehicle tracking in the patent. News articles talk about the Nextbus company's product, which also does this, from 1996. Yet the patent office granted Patent #7,030,781 in 1999 2006, but with a "priority date," the date before which prior art is relevant, of 1999 or 1993.

Some patents play a valuable role in ensuring inventors get some compensation for their inventions, and rightly so. They are especially important in fields that require expensive R&D, such as pharmaceuticals. However, for software and business methods in particular, a great number of patents go to whoever first files for a fairly broad idea, like streaming audio on the Internet, multi-player games, looking up bar codes in a database, purchasing things from inside apps, or having users send messages to other users of a website.

Coupled with a 17-year patent term that is far longer than the lifecycle of products in technology, these kinds of patents have done a lot of damage to innovation, by making it very expensive for anyone to develop a new product from scratch. They cost transit agencies money and can prevent transit riders from having the best information.

EFF has been pushing to reform a broken patent system. You can lend your voice at Defend Innovation and become an EFF member (I have been one for many years now). It'll help transit riders and many, many more people who benefit from innovative technology.

Government


In Uber fight, Silicon Valley & Washington philosophies clash

DC Councilmember Mary Cheh (Ward 3) stepped into a firestorm yesterday when car service Uber claimed that the council was about to forbid lower prices for its service. This fight resembles so many policy debates around technology, because it's a choice between two fundamental philosophies.


Photo by Frank Gruber on Flickr.

Should a market have a number of rules which define ahead of time what companies can do, or should it create space for companies to try innovative things, knowing that many will fall amid competition? From Uber to patents to telecom policy, this is perhaps the central debate in technology policy today.

Cheh thought she was helping Uber. The company and DC regulators are embroiled in a dispute about whether the service is legal. That's because "black car" sedans can pick up passengers, but only to transport them for fixed fares deermined ahead of time. Want to charge a rider by time and distance at the end of the ride? Then you're a taxi and have to charge set taxi rates, say DC regulators.

Uber claims their service is legal. Cheh's amendments would have made it unambiguously legal, but only so long as the service charges 5 times the price of a taxi for the "flag drop," the initial amount on the meter at the start of a ride. Perhaps not surprisingly, Uber's flag drop charge was exactly 5 times the current taxi flag drop fee.

The political details have been reported widely in the press. Uber members flooded Council inboxes, and Jack Evans (Ward 2) claimed to have received 5,000 emails. A number of councilmembers, like David Catania (at-large), said they didn't want to be setting policy around protecting the taxi industry, while Marion Barry (Ward 8) stood with taxi drivers.

Cheh decided to pull her amendments to give her a chance to rework them, likely in consultation with Uber. She said she did consult with Uber and thought they had a compromise; Uber's CEO says they never agreed to this language.

This story is a classic case of Silicon Valley meets Washington, even more literally than usual. Many startup companies encounter the world of laws, lobbying and legislation and find the culture gap baffling. It's not just Congress (which, for that matter, steps all over the District of Columbia government all the time); it's state legislators too, like the California state senators who tried to ban Gmail when it came out.

Often in these kinds of cases, everyone means well. Cheh is one of the Council's most thoughtful members and a strong supporter of transportation choices. She's no enemy of innovation; her staff organized a ride in Google's self-driving car and she raved about the experience.

The permission model or the innovation model?

But there is still a culture gap here. Specifically, there are two ways of thinking about how business meets law: the permission model and the innovation model. In one, there's some gatekeeper that has set out a list of things you can do and things you can't. If you want to do something different that nobody has done, you can get permission from that gatekeeper to allow it, if it has enough merit and/or you have enough influence. In the other, you can do what you want, unless it's so harmful that someone takes action to stop you.

Neither model is really purer or more original than the other. Some businesses have always worked according to one type, others in another. Mercantile England gave charters to companies to settle and trade in the New World. And the gatekeeper is not always the government. For instance, food marketing has always been more of a permission model: in order to get anyone to sell your new food, you have to get grocery stores to give it space on shelves, which generally means paying them.

Television has also always been a permission model. The first television networks got the rights to broadcast on certain frequencies from the government, which was the gatekeeper deciding which companies could be broadcasters and which couldn't. But when cable came along, the cable companies became the gatekeepers, and now they negotiate with channels about carrying their content or not; periodically, these negotiations spill out publicly when a channel runs ads saying that a cable company is going to cut off customers' access to that content.

Zoning converted an innovation modelyou could build whatever you wantedinto a permission model where you have to get the okay from a zoning board to build something outside set parameters. The early frontier was more of an innovation model, where land was just about free and you could go set up a farm without having to buy someone else's land first.

The innovation model built Silicon Valley

Silicon Valley enjoyed the innovation model for a very long time. The Internet and protocols like TCP/IP and email, developed by academics, allowed anyone on one system to connect to any other system and share information. People could build websites that didn't need to get permission from the equivalent of the cable company. AOL and similar services had a more cable-like online offering at first, but the open Internet won out because users preferred it.

That's starting to change in a few ways. One is that fewer cable and phone companies control access to subscribers, and are starting to try giving some favored applications more privileges, especially to get around data caps, than others. A second is patents.

Patents turn an innovation system into a permission system by carving up the space of possible things you could do but haven't yet, and giving them to anyone who comes along and pays a fee to grab that piece of idea land. Patents don't stop someone from building a product, but they do force them to check with everyone who has patents in the area first and get their permission.

That impedes someone from building a better website that effectively competes with an existing one. It even stops organizations like transit agencies from doing the mostly-obvious, like letting riders track trains and buses in real time, because a "patent troll" has the patent and wants to extract money from anyone stepping nearby.

A number of technology/policy/economics writers, like Tim Lee, have been talking about the destructive effects of patents for some time, but running into resistance from an interesting quarter: lawyers. It seems that most lawyers, accustomed to the world of law where everything is set up with a rule, find the permission system of patents more familiar and comfortable than the innovation model. The problem is, familiar doesn't mean good; patents are slowing down Silicon Valley and favoring large, established companies.

Uber brings the innovation model to permission-oriented taxi regulations

What does this have to do with Uber? The Cheh amendment seems to be a standard regulatory approach. Uber may be illegal now. Pass a law that lets them do what they are doing. But to minimize the impact, limit the law to only let them do what they do now, and not just anything; if they want to do something else, maybe there can be another law.

Uber is coming at this from the Silicon Valley angle. Just do something and see if people like it. If they do, grow it. They understandably chafe at being given a box that circumscribes their existing business model but also walls off potential future directions they might evolve.

Riders also don't benefit from these rules. If Uber can compete with taxis, why not? Most people feel taxis could be a lot more comfortable, have better technology, and be safer. Giving riders more choices could mean some taxi companies thrive and others go out of business. That's competition, and it's healthy.

Cheh's bill also tried to address these taxi problems. It included provisions to force taxis to upgrade their equipment, start taking credit cards, and more. But it went about that, again, in a regulatory way. Rather than setting some standards (or just encouraging competition), it gave an exclusive contract to one company to put one set of technology in all cabs. That doesn't foster as much innovation as the alternative since the winner has the exclusive right to make the only product in this space.

The best way to improve taxis is to help riders find the best ones. Smartphone apps can start to do this and more and more people across the income spectrum are starting to have smartphones. As I recommended in a Post op-ed in January, let's allow any company that meets certain minimum requirements to pick up customers who phone in or use a smartphone app. Hailing a cab on the street can keep working like it does today.

The one necessary element is to demand that each competing company publish its rates ahead of time in an open format. Then, riders can use one of many apps (which can themselves compete) to compare taxi rates and pick a cab company.

It's not the regulatory, permission-based way of solving the problem, but it's the one that will foster the most competition, innovation, and value for riders.

Update: 2 additional brief points.

First, some Council staffers say Cheh's office really did believe they had an agreement from Uber. Uber's email, which just said the Council was trying to set a price floor without mentioning that it was also trying to eliminate the legal gray area, wasn't entirely forthcoming with all the facts.

It's not yet clear that Uber didn't just decide they didn't like the result of negotiations and could use political muscle instead. That's their right, of course, but something we should recognize.

Second, taxis are a regulated industry today. An innovation model might be better, but most taxis don't operate on one. It is indeed unfair to put a lot of regulations on one group of businesses in a space (the traditional taxis) and none on others (Uber).

My preference would be to move the industry more away from regulation and toward an innovation model instead of vice versa, but it's reasonable for taxis to ask to compete on a level playing field.

Parking


Are scooters bikes or motorcycles?

District law accommodates bicycles and automobiles together on urban streets, but scooters sit in a gray area. Some are classified as motorcycles and others motorized bicycles, which enjoy greater flexibility. To encourage this alternate mode of transportation, regulations should treat scooters more like bicycles than motorcycles.


Photo by the author.

In February, I purchased what I thought was a scooter. And then I thought it was a motorcycle. And then, a scooter. Now, I can say with certainty that my Vespa LX 50 is classified in the District of Columbia as a motorcycle.

According to a guide from the DC government, a scooter is a motorcycle if it has any of 5 characteristics: wheels under 16 inches in diameter, an engine greater than 50 cc, the ability to travel in excess of 35 mph on level ground, more than 1½ brake horsepower, or a manual transmission. If a scooter has none of those, it's a motorized bicycle.

So why does this matter? Motorized bicycle owners are not required to pass a motorcycle skills test or wear a helmet and can ride in bike lanes. Most importantly, motorized bicycles can park in a bicycle rack or on a street curb "so as not to impede pedestrian traffic," while motorcycles must park in the street.

These parking restrictions cause problems for scooter owners because scooters are easily movable and they must be locked to something (a post or sign) or else they can easily be stolen, unlike a motorcycle. Because there is nothing to lock a scooter to when parked on the street, most scooter owners park on sidewalks, in violation of DC law. They frequently get tickets for doing so.

Because of the complexity of the rules, some scooter owners are unaware that they actually drive a "motorcycle" and cannot park on a sidewalk. Believing themselves to be unfairly ticketed, they resort to tactics like this owner, who posted the DC chart on a sign reading "PLEASE DON'T TICKET":


Photo by the author.

Scooter theft is a real concern. While there are no publicly available statistics about its incidence in DC (an inquiry to both the DC DMV and MPD went unanswered), seemingly every owner I've met has either had a scooter stolen in the past or knows someone who has.

It's time for city officials to understand the consequences of these regulations and to grant scooter owners the right to secure their property, or at least not write a ticket them for doing so.

Transit


WMATA still says blogs aren't news media

WMATA lawyers incorrectly read the laws in 2009 to declare Greater Greater Washington, and other blogs, not part of the news media. Today, they reiterated this incorrect interpretation in response to a PARP request (their version of FOIA) from Michael Perkins.


Photo by mahalie on Flickr.

The "news media" does not have to pay fees when they request information via PARP for news stories. Michael was asking for information about the riders' survey which WMATA used to design the fare increase this year. WMATA legal staff asked for a fee of $261 to provide the information, and denied his request to waive the fee for the news media.

We'd like to pursue appealing this ruling. Are there any lawyers who can help us out pro bono?

As Michael explained 3 years ago, WMATA is basing this decision on a 2 DC district court cases, Judicial Watch, Inc. v. United States Department of Justice and Electronic Privacy Information Center v. Department of Defense, where courts denied "news media" status to these organizations in 2000, 2002 and 2003.

WMATA's Public Access to Records Policy (PARP) says that it follows the federal FOIA, meaning that this law clarifying FOIA also applies to WMATA's PARP.

The WMATA denial, which just copies the previous one from 2009, claims that, "A representative of the news media must itself disseminate the information not merely make it available."

But, as Michael Perkins notes, the Open Government Act of 2007 clarified a broader interpretation of "news media" as:

any person or entity that gathers information of potential interest to a segment of the public, uses its editorial skills to turn the raw materials into a distinct work, and distributes that work to an audience.
And:
These examples [newspapers and broadcast radio or television] are not all-inclusive. Moreover, as methods of news delivery evolve (for example, the adoption of the electronic dissemination of newspapers through telecommunications services), such alternative media shall be considered to be news-media entities.
Greater Greater Washington "disseminates" information via the web, email, Twitter and other means. Some people, like the subscribers to our daily email, do get it "delivered" directly (though electronically), while others request the information via the web. Newspapers today also do the same; some people get a copy on their doorstep, others get a daily email, while others go to the website.

Back in 2009, the media relations team wasn't sure they should talk to blogs such as Greater Greater Washington, but since then, that group has started to treat us as "news media" and help answer questions that will go into articles. Perhaps they should speak with the legal department.

If you can help us formulate a more detailed legal argument to make to WMATA and, if they don't see the light, pursue the matter in the courts, please email info@ggwash.org.

Here is the full text of their email from Keysia Thom at WMATA:

Dear Mr. Perkins,

This acknowledges receipt of your request for a copy of the survey, results, and weights used by the JCC to determine the fare model for the Metrorail rider survey. This also responds to your request for a fee waiver and requires an advance payment by May 16, or your request file will be closed. Your request is being processed pursuant to the Public Access to Records Policy (PARP), which can be viewed on our website at http://www.wmata.com/about_metro/public_rr.cfm, under the section marked, "Legal Affairs." Generally, we aim to issue decisions on a request for records within 20 working days after the date of receipt of the request.

We note that you requested a fee waiver for search time because you are an author for Greater Greater Washington. Pursuant to federal regulations, a representative of the news media is any person actively gathering news for an entity that is organized and operated to publish or broadcast news to the public. 28 C.F.R. § 16.11 (b)(6) (2012). Examples include television and radio stations broadcasting to the general public, publishers of periodicals that disseminate news to the general public, and freelance journalists who can demonstrate a solid basis of publication through a news organization. Judicial Watch v. United States Dep't of Justice, No. 99-2315, 2000 U.S. Dist. LEXIS 19789 *9-12 (D.D.C. August 17, 2000). Your request consists of a conclusory statement that you are a member of the news media, but does not provide any details about your editorial skills and how you intend to distribute the records to the public at large. We have viewed Greater Greater Washington's website and it appears to be a blog. Judicial Watch, an organization that promotes transparency in government and operates a website that includes news on that topic and its activities (including those reported by the media), has been found not to qualify as a representative of the news media. Judicial Watch v. United States Dep't of Justice, No. 99-2315, 2000 U.S. Dist. LEXIS 19789 *9-12 (D.D.C. August 17, 2000). A representative of the news media must itself disseminate the information not merely make it available. Judicial Watch, Inc. v. United States Dept of Justice, 185 F.Supp. 2d 54, 59 (D.D.C. 2002). For these reasons we have denied your request for a fee waiver under the media category.

...

We estimate that it will cost $261.00 for 3.0 (5 hours of staff time - the first two hours of staff time, which are provided free of charge) to retrieve and review the records that are responsive to your request for exempt material. Please remit a check for the full amount made payable to the Washington Metropolitan Area Transit Authority to my attention by May 16, 2012. The records will be provided as soon as possible after receipt of payment, along with reimbursement of any excess payment or request for additional payment. If we do not receive the payment by May 16, we will close your request file.

Transit


Patent troll sues transit agencies who provide real-time info

Martin Kelly Jones doesn't make or sell a thing, but has made a living by suing transit agencies who use real-time tracking technologies that he says he owns. It's a practice known as "patent trolling."


Photo by Oran Viriyincy on Flickr.

Jones filed his first transit-related patent in 1993, securing rights to the idea of letting parents know when school buses were running late. More than 30 additional patents of similar ideas followed.

Jones doesn't actually develop or sell any technology relating to real-time vehicle tracking, but that hasn't stopped him (and his two offshore firms, ArrivalStar and Melvino Technologies) from punishing anyone who does. To date, he's filed more than 100 lawsuits against anyone who uses such technologyeveryone from Ford to Abercrombie & Fitch to American Airlines to FedEx. He's now one of the top 25 filers of patent infringement suits, according to PriorSmart.com.

Lately, Jones has focused his litigious impulse on transit agencies around the country.

According to a brief by the Georgetown Climate Center, "ArrivalStar has brought suit against at least ten transit entities, and at least eight more have received demand letters." GCC, which convenes the Transportation Climate Initiative, worries that the suits can create a chilling effect, discouraging agencies from employing vehicle tracking technologies. Real-time bus arrival information has been shown to increase ridership, taking cars off the road and reducing vehicle emissions.

Jones' strategy is not to sue transit agencies for all they're worth, but to offer them a relatively low-cost way to keep these cases out of court. In fact, not one of his lawsuits has gone all the way through trial. They always end up settling, usually for $50,000 to $75,000, though the demands can go as high as $200,000.

"That's $75,000 of taxpayer money that's going into ArrivalStar's pockets without the validity of the patent ever being challenged," said attorney Babak Siavoshy, who represents the Electronic Frontier Foundation. "If they make the settlement amount low enough, where the costs and benefits favor settling, then most municipalities are going to settle, and it costs them a lot of money, because the cost of litigation is a big stick."

Siavoshy and EFF want the US Patent and Trademark Office to review Jones' patents. EFF is looking for what's known as "prior art": examples of real-time vehicle tracking being discussed before Jones took out the patent, to show that he wasn't the first one with the idea. Advocates also think they can prove that the systems Jones patented were too "obvious" or "non-novel"that they were logical extensions of existing technology. Abstract ideas, with no technology or product attached, are not patentable.

ArrivalStar attorney Anthony Dowell contends that the patents are defensible and that Jones has the right to seek money from the agencies. "Just because an entity is funded with taxpayer dollars doesn't give them the right to steal property," said Dowell in a recent interview with ArsTechnica. "My client now owns 34 patents that are being infringed, and what else is he to do?"

The transit agencies I called couldn't comment, since the case was pending. But the general counsel of the Monterey-Salinas Transit Corporation, David Laredo, said that they're not challenging the validity of the patents. Their strategy is to assert that the vendor who sold the technology to the transit agency (Trapeze, a spinoff of Siemens) does hold a license from ArrivalStar, and if they don't, that's the vendor's problem, not theirs.

To date, ArrivalStar has reached settlements with the city of Fairfax, Virginia; Boston's MBTA; New York City's MTA; Chicago's Metra; and the Maryland Transit Authority. Suits are pending against the Port Authority of New York and New Jersey's PATH; King County, Washington; the Monterey-Salinas Transit Corporation; the Greater Cleveland Regional Transit Authority; and Portland's TriMet.

In the past, transit agencies may not have talked to each other about these lawsuits because Jones reportedly insists on a nondisclosure agreement as part of the settlement. He only brings a few suits at a time, using a divide-and-conquer strategy, taking care not to demand so much from these public entities that they would pursue litigation.

The recent focus of Jones' lawsuits on transit agencies has inspired Georgetown Climate Center and the American Public Transit Association to get these entities to communicate more and to develop a more cohesive strategy. So far, though, Jones' strategy has been working.

But since Jones brought a suit against the U.S. Postal Service last November, the federal government is now affected. His suit charges the post office with violating his patents with its package tracking services.

Since USPS is a federal agency, the Department of Justice is now involved, defending the post office against ArrivalStar's claims by saying the patents are invalid and that no infringement occurred. Advocates and attorneys are trying to persuade the feds to broaden their interest in ArrivalStar from just USPS to all the transit agencies that have been affected.

After all, the transit agencies, by and large, bought the GPS tracking devices with federal dollars, in pursuit of federal transportation goals. Publicly available real-time transit informationon smartphone apps, transit agency websites, or on screens in bus stops and train stationsmakes transit a more attractive option, with the potential to reduce congestion and pollution. SAFETEA-LU, the transportation authorization the country is still (amazingly) working under, specifically requires states to identify ways to deliver real-time transit information to the public.

Georgetown Climate Center Director Vicki Arroyo told Streetsblog that she's had some "early but hopeful discussions" with senior USDOT officials.

"Earlier, some of the more junior people within the federal government were not keen to take this on, saying they didn't have a dog in the fight. Now they do," she said, referring to the suit against the postal service. "We're hoping they won't just look at this as a one-off matter. There's a much higher public stake here."

A version of this article was originally posted at Streetsblog Capitol Hill.

Editor's note: The MBTA's response brief to ArrivalStar rebuts the company's actions with powerful rhetoric that's unusual for a legal filing:

This lawsuit offends any notion of justice. The mission of Defendant Massachusetts Bay Transportation Authority ("MBTA") is to transport its 1.1 million riders safely and on time every day. As a service to the riding public, the MBTA alterts riders via its website, text message or email whether one of its vehicles is running late or has otherwise encountered some difficulty or delay. Though the MBTA is a cash-strapped public entity, its notification service is free of charge to anyone who wishes to subscribe. The MBTA makes no money from this service. The service provides a benefit to the riding public, by whom it has been well received.

Plaintiffs ArrivalStar S.A. and Melvino Technologies Limited (collectively, "Plaintiffs" or "Arrivalstar"), two offshore companies, allege, in a conclusory and unspecified manner, that the technology underpinning the MBTA's alert system infringes on two patents that they claim to own. Plaintiffs do not allege they produce or manufacture anything. They do not allege they sell anything. The primary, if not sole, purpose of Arrivalstar is to exact tribute from any person that Arrivalstar asserts is using inventions claimed in patents that they purport to own, either in the form of royalties or a strike suit such as this one. The Court may take notice of the fifteen suits Plaintiffs, or a related entity, have brought in federal district courts involving the same two patents at issue in this dispute. ...

In any event, the practice of monetizing patents through serial litigation by "non-practicing entities" or "NPEs," as they are euphemistically known, is unseemly and inimical to the fundamental purpose of United States patent laws of encouraging innovation and its introduction into the economy. The business model of Plaintiffs is no less obvious than the patents themselves, and shakedowns such as this one should be outlawed.

Education


Some special needs kids still falling through DCPS cracks

DC Public Schools recently opened a second facility to serve DC parents who are concerned that their preschool-age child may have a disability or a developmental delay. However, as a judge's ruling made clear last week, ineffective managers of these facilities are allowing children with special needs to fall through the cracks.


Photo by NazarethCollege on Flickr.

This is not only tragic for these children, but extremely expensive when DCPS identifies their special needs much later.

On November 8, DCPS opened its second Early Stages center next to the Minnesota Ave Metro station. The program, which started in October 2009 with the opening of its first center at the Walker-Jones Education Campus in Ward 6, is free for all DC residents, as well as families who attend private schools in DC, who suspect that their child between 3 and 5 years of age may have a disability or a developmental delay.

This isn't just a compassionate and cost-effective initiative. It's also a federal law.

The Child Find provision of the Individuals with Disabilities Education Act (IDEA) requires that all states have a comprehensive system "to assure that all children who are in need of early intervention or special education services are located, identified, and referred."

This provision emphasizes the importance of early intervening services since providing services to children before they reach kindergarten "can have a significant impart on a child's ability to learn new skills as well as reduce the need for costly interventions over time" for children with developmental delays and disabilities as well as those with learning disabilities.

While DCPS, including Early Stages for preschool-age children, and DC Charter Schools are responsible for identifying students in need of special education services between the ages of 3 and 21, the Office of the State Superintendent of Education is responsible for identifying all DC residents from birth to age 3 in need of special education services.

Sadly, these obligations to the most vulnerable in the District are still not being met. Testimony in the continuing class action lawsuit, DL v. District of Columbia, demonstrates that DCPS must strengthen several elements needed to have a comprehensive Child Find system. The suit was brought about by 7 families in 2005 "who encountered barriers and delays in securing special education services for which they were eligible".

A judge overseeing the suit ruled last week that DCPS had failed to provide some parents with a timely evaluation, as determined under IDEA. Early Stages staff acknowledged that "at least four patients per day contacted Early Stages 'to report that a Child Find Coordinator had failed to return their calls regarding providing their children with an evaluation or an eligibility screening.'"

The testimony of another DCPS witness, Maxine Freund, a professor at George Washington's Graduate School of Education and Human Development, also illustrated how "leadership turnover and lengthy vacancies in key positions" hindered Early Stages' efforts in becoming a comprehensive child find system.

Poor leadership has most likely limited the development of a tracking system "to determine which children are receiving services and ensure follow-up once children are referred" as well as complete coordination among agencies in Washington, DC involved in providing services to identified children.

The opening of the second Early Stages center is certainly a step in the right direction. Before the opening of the second Early Stages center, 40 percent of the referrals in the Ward 6 Early Stages center were from children in Wards 7 and 8. This high number of referrals is consistent with the most recent census data that illustrates that 40 percent of DC children live in Wards 7 and 8.

Furthermore, children who live in poverty are more at risk for having a developmental delay. While less than 3.1 percent of children who live in Ward 3 live in poverty, over 40 percent of children who live in Ward 7 and about 50 percent of children who live in Ward 8 live in poverty. Early Stages staff believe that at least 12 percent of children in this age group have a disability or a developmental delay.

While the implementation of the Early Stages program has played a role in increasing the identification of preschool-age children with disabilities or developmental delays, DCPS must strengthen its efforts to fill the position vacancies with people who are not only experienced in Child Find, but also have strong leadership skills.

Including strong leaders in management positions and reducing turnover would increase the likelihood of Early Stages developing a culture that supports the aspects of a comprehensive Child Find system, including timely evaluations, communication with families, interagency coordination, and the development of a tracking system.

Pedestrians


The streets and the courts failed Raquel Nelson

Last week, many reported the horrific story of Raquel Nelson, whose four-year-old son was killed as she attempted to cross the street with him to reach their home. Nelson was convicted of reckless conduct, improperly crossing a roadway and second-degree homicide by vehicle, all for the crime of being a pedestrian in the car-centric Atlanta suburbs.

The conviction carried a sentence of up to 36 months, while the driver who killed Nelson's sonwho'd been drinking and using painkillers before getting behind the wheelgot off with six months on a hit-and-run charge.


The bus stop on Austell Road and the path taken by Raquel Nelson to get to her apartment complex across the street. No marked crossings are visible in the photo. Image from T4America.

The more information that came out, the more outrageous the charges against Nelson became. From an Atlanta Journal-Constitution story that came out the month after the incident:

On April 10, she and her three childrenTyler, 9, A.J., 4, and Lauryn, 3went shopping because the next day was Nelson's birthday. They had pizza, went to Wal-Mart and missed a bus, putting them an hour late getting home. Nelson, a student at Kennesaw State University, said she never expected to be out after dark, especially with the children.

When the Cobb County Transit bus finally stopped directly across from Somerpoint Apartments, night had fallen. She and the children crossed two lanes and waited with other passengers on the raised median for a break in traffic. The nearest crosswalks were three-tenths of a mile in either direction, and Nelson wanted to get her children inside as soon as possible. A.J. carried a plastic bag holding a goldfish they'd purchased.

"One girl ran across the street," Nelson said. "For some odd reason, I guess he saw the girl and decided to run out behind her. I said, 'Stop, A.J.,' and he was in the middle of the street so I said keep going. That's when we all got hit."

Look at all the ways the design of the city's transportation system failed Nelson and her family. Bus service runs once an hour. There is no crosswalk to connect a bus stop with an apartment building it servesnor any crosswalk for three blocks. A convicted hit-and-run driver who is half-blind and has alcohol and pain-killers in his system is considered less of a threat to the public than a woman who rides the bus and walks with her kids.

And as Radley Balko wrote in the Huffington Post, the odds were stacked against Nelson from the start.

"During jury questioning, none of the jurors who would eventually convict Nelson raised their hands when asked if they relied on public transportation," Balko wrote. "Just one juror admitted to ever having ridden a public bus, though in response to a subsequent question, a few said they'd taken a bus to Braves games."

Indeed, as David Goldberg wrote on T4America's campaign blog, "Nelson, 30 and African-American, was convicted on the charge this week by six jurors who were not her peers. All were middle-class whites" and did not ride public transit. "In other words, none had ever been in Nelson's shoes."

Many have asked if there's any way to help. Some expressed a desire to contribute to Nelson's legal fund. Others wanted to know if they could write a letter to someone demanding that Nelson's charges be expunged.

I've left two messages over the past week with Nelson's lawyer asking these (and other) questions. Neither message has been returned. So I can't answer your questions about a legal defense fund. Nelson's sentencing hearing is on Tuesday.

But there are now two petitions circulating. One, circulating at the Care2 petition site, asks the governor to overturn Nelson's verdict. At the moment I'm writing this, the petition has gathered 4,369 signatures, on the way to its goal of 10,000.

Another, which currently has 1,061 signatures at Change.org, asks not only for Nelson's release but for the installation of a crosswalk. That petition is addressed to the Cobb County Transportation Department, Cobb County Commissioner District 1 (Helen Goreham), and the Solicitor General (Barry Morgan).

We'll stay tuned for news on Nelson's sentence on Tuesday.

Cross-posted at Streetsblog Capitol Hill.

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