Don't see how this applies to this case. The aircraft had an operable radio capable of communicating with ATC.
As I said, she provided the red.
That particular bit was included not becuase of the "letter of the law" specifically, but because she feels that it infers that 2 way communications is a requirement. Certainly, as it applies to this discussion, that is more subject to interpretation than the more precise wording that was emphaized in red above it.
I could go out on a limb and speculate that those who wrote that reg never anticipated ATC failing to communicate because they were asleep. If they had, perhaps they have chosen a few different words.
If anyone is interested, there was a discussion of this at LiveATC Forums. (I say "was", be cause apparently their administration isn't as tolerant of heated debate as the administration here, and the thread is closed.) Poster TC is a controller at KBOS, and he seems to have a very strong opinion on the issue:
FAA suspends controller who missed landing of two planes at D.C. | LiveATC.net[/COLOR]