Alpha, Inc., markets “Beta Calling,”

Fact Pattern 43-1 (Questions 19–20 apply)

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Alpha, Inc., markets “Beta Calling,” a Voice over Internet Protocol service. Colorado State Agency concludes that Beta is a phone service and orders Alpha to pay state phone taxes. Alpha files a suit against Colorado to stop the order.

19. Refer to Fact Pattern 43-1. According to the court in Case 43.3, Vonage Holdings Corp.v.Minnesota Public Utilities Commission, federal policy is to

a. discourage state taxation of telecommunications services.

b. encourage state taxation of telecommunications services.

c. preserve a competitive market for interactive computer services.

d. uphold state agency decisions unfettered by their effect on a market.

20. Refer to Fact Pattern 43-1. Under the reasoning of the court in Case 43.3, Vonage Holdings Corp.v.Minnesota Public Utilities Commission, if fed­eral policy is to encourage certain conduct, state law discouraging that conduct must

a. be preempted.

b. override policy considerations.

c. take precedence.

d. weigh equally in the balance.

Essay Questions

1. A-Plus Battery Company (ABC) makes batteries for motor vehicles. The Occupational Safety and Health Administration (OSHA) proposes a safety rule governing the handling of ac­ids in the workplace, including chemicals ABC uses in its operations. ABC concludes that the rule will involve sub­stantial compliance costs without significantly increasing workplace safety. ABC sends a letter to OSHA indicating its objections to the pro­posed rule and enclosing research reports and other data sup­porting those objections. Does OSHA have any obligation to consider these objec­tions? What procedures must OSHA follow when it makes new rules, such as this one?

).

2. Omega Company operates a computer chip production plant. Paula is the president of Omega. Ron, a representative of the Occupational Safety and Health Administration, inspects the plant and, citing a certain regula­tion, orders Omega to take specified steps immediately to improve sanita­tion at the plant. Paula believes that Ron is either exceeding his authority or that the regulation Ron claims to be enforcing is excessive. Can Omega ask a court for an order to stop enforcement of the regula­tion? If not, what can Omega do?