Tech Law Journal Daily E-Mail Alert
April 3, 2002, 9:00 AM ET, Alert No. 402.
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DC Circuit Remands Local TV Ownership Rule to FCC
4/2. The U.S. Court of Appeals (DCCir) issued its opinion in Sinclair Broadcast Group v. FCC, remanding the FCC's local television ownership rule for further consideration.
Sinclair Broadcast Group, a television broadcasting company, currently owns and operates, programs, or provides sales services to 63 television stations in 40 markets. It filed a petition for review of the Federal Communications Commission's (FCC) local television ownership rule. See 47 C.F.R. § 73.3555(b). This rule allows common ownership of two TV stations in the same local market if one of the stations is not among the four highest ranked stations in the market and eight independently owned, full power, operational TV stations remain in that market after the merger.
Sinclair challenged this duopoly rule on the grounds that its "eight voices" exemption is arbitrary and capricious, that failing to fully grandfather existing local marketing agreements (LMAs) violates § 202(g) of the 1996 Act, is impermissibly retroactive, and constitutes an unlawful taking of property in violation of the Fifth Amendment, and that the restrictions violate the First Amendment.
The Appeals Court held that the FCC "has failed to demonstrate that its exclusion of non-broadcast media in the eight voices exception is not arbitrary and capricious. Accordingly, we remand the local ownership rule to the Commission for further consideration." However, the Appeals Court rejected both Sinclair's statutory challenge to the local ownership rule provision on television LMAs, and its constitutional challenges.
Judge Judith Rogers wrote the opinion of the three judge panel, in which Judge Stephen Williams joined. Judge David Sentelle dissented in part. He offered additional arguments for finding the eight voices exemption arbitrary and capricious. He also argued that the Appeals Court should have vacated, rather than remanded, the rule. Finally, in discussing Sinclair's First Amendment argument, he wrote that the Appeals Court is still stuck with the scarcity doctrine, and that it is time for the Supreme Court to review it. See, National Broadcasting Company v. United States, 319 U.S. 190 (1943), and Red Lion v. FCC, 395 U.S. 367 (1969).
The Media Access Project (MAP), a Washington DC based group that advocates FCC regulation of speech, issued a release [PDF]. It stated that "While today's decision is a temporary setback, it actually underscores the FCC's power to promote media diversity. MAP is confident that, in the end, existing ownership rules will be retained. The decision today forcefully demonstrates that when the Supreme Court's precedent is accurately applied, the FCC possesses full freedom to protect the public and promote diversity of viewpoints."
FBI Creates Cyber Division
4/2. The Federal Bureau of Investigation (FBI) created a Cyber Division, and appointed Larry Mefford as its Assistant Director. The FBI stated that this division will "focus and coordinate the multitude of disciplines within the FBI that are cyber related. The division will supervise and facilitate the FBI's investigation of federal violations in which the Internet, computer systems and networks are exploited as the principal instruments or targets of criminal activity."
Mefford was previously Associate Special Agent in Charge of the FBI's San Francisco Field Office. He is a career Special Agent, without specialization in computer science. See, FBI release
More News
4/2. The National Institute of Standards and Technology (NIST) published a notice in the Federal Register announcing that it "approves FIPS 198, The Keyed-Hash Message Authentication Code (HMAC), and makes it compulsory and binding on Federal agencies for the protection of sensitive, unclassified information. FIPS 198 is an essential component of a comprehensive group of cryptographic techniques that government agencies need to protect data, communications, and operations." This standard is effective August 6, 2002. See, Federal Register, April 2, 2002, Vol. 67, No. 63, at Pages 15548 - 15549.
4/1. The U.S. District Court (DMass) granted the Securities and Exchange Commission's (SEC) motion for a preliminary injunction, asset freeze, and other relief in SEC v. Anamar Communications, Inc. and Brett Mallory, a civil securities fraud action. The SEC alleged in its complaint, filed on March 15, 2002, that Anamar and Mallory violated § 17(a) of the Securities Act of 1933, § 10(b) of the Securities and Exchange Act of 1934 and Rule 10b-5 thereunder by fraudulently offering and selling shares of Anamar stock via the Internet and other means. The complaint alleges that defendants falsely stated that Verizon would buy Anamar. See, SEC release.
4/2. Herbert Derungs plead guilty in U.S. District Court (NDCal) to three counts of mail fraud in violation of 18 U.S.C. § 1341, and three counts of wire fraud in violation of 18 U.S.C. § 1343. Derungs sold over eBay baseball bats that he falsely claimed had been used in games by major league baseball players. See, USAO release.
4/2. The U.S. Patent and Trademark Office (USPTO) published a copy of the March April issue of USPTO Today [PDF] in its web site.
4/2. The U.S. Patent and Trademark Office (USPTO) announced that it will hold a series of half day seminars on the Trademark Electronic Application System (TEAS) in Philadelphia, Cleveland, Dallas, Denver, and San Francisco. See, USPTO notice.
EPIC Files FOIA Suit Against Office of Homeland Security
4/2. The Electronic Privacy Information Center (EPIC) filed a complaint [PDF] in U.S. District Court (DC) against the Office of Homeland Security (OHS) and Tom Ridge alleging violation of the Freedom of Information Act (FOIA), 5 U.S.C. § 552. The EPIC seeks expedited release of records regarding a government national identification system, biometric identification systems, and a trusted flier program.
The complaint alleges that "Subsequent to the terrorist attacks of September 11, 2001, the newly created Office of Homeland Security reportedly began drafting legislation, and planning and designing security systems, that could implicate the privacy rights of American citizens. These initiatives reportedly include proposed model state legislation requiring that driver's licenses issued to noncitizens be tied to visas; the development of biometric identification systems; and establishment of a ``trusted flier´´ program that would create a new federally issued identity card."
The EPIC submitted its FOIA request to the OHS on March 20, 2002, requesting "all records relating to efforts to standardize driver's licenses across the country in the possession of the Office for Homeland Security, including but not limited to memos, talking points, reports and draft legislation." The EPIC also requested "all records associated with [the trusted-flier program] and other proposals being considered by the Office that rely on biometric technology to identify citizens and visitors to America."
The EPIC also requested expedited processing of its FOIA request, noting that "there is a particular urgency to inform the public about the government’s proposed activity," and that "funding and legislative decisions" regarding this activity "are currently before Congress."
The complaint alleges that defendants have violated the FOIA and the Administrative Procedure Act through "failure to timely respond to plaintiff's request for expedited processing" and "failure to grant plaintiff's request for expedited processing". The EPIC seeks a court order compelling defendants to "immediately to process the requested records in their entireties".
While the FOIA provides that all federal agencies are covered, "including the Executive Office of the President" (see, 5 U.S.C. § 552(f)), this has been limited by court rulings. Many activities of the Executive Office of the President are not subject to the FOIA.
David Sobel, General Counsel of the EPIC, stated at a press conference on April 2 that "the Office of Homeland Security is based in the Executive Office of the President". He added that the EOP has not indicated to the EPIC, or in its web site, whether it considers the OHS to be covered by the FOIA. "I am not entirely sure what the administration's position is on this question", said Sobel.
Marc Rotenberg, Executive Director of the EPIC, stated that OHS policy making "should be done in the bright light of day." He also wrote a letter to Congressional leaders, in which he stated that "We submitted this request because of the enormous implications for privacy and civil liberties in America if such a system were deployed, and because we believe that the Office of Homeland Security should be subject to the same open record laws that govern other federal agencies which engage in substantial policymaking."
Rotenberg concluded in the letter that "It is imperative that the Office of Homeland Security comply with the Freedom of Information Act, a law that helps ensure the preservation of open government and the protection of the constitutional values of the United States." However, the letter does not explicitly ask for anything from the Congress.
FTC Files Suits Against Fraudulent Spammers and Online Sellers
4/2. The Federal Trade Commission (FTC) announced that it has filed several civil complaints alleging fraudulent spam, online fraud, and violation of the FTC's Mail Order Rule. See also, FTC release.
The FTC filed a complaint [PDF] on March 29 in the U.S. District Court (SDOhio) against Linda Lightfoot and Charles Childs, dba Universal Direct, alleging violation of the Federal Trade Commission Act in connection with an spam chain letter.
The FTC filed a complaint [PDF] in the U.S. District Court (WDWash) against David Walker alleging violation of the Federal Trade Commission Act in connection with the use of a web site to promote fraudulent cancer treatment products.
The FTC filed a complaint [PDF] on March 5 in the U.S. District Court (DOr) against Sound City 2000 and Linda Simmons alleging violation of the FTC's Mail Order Rule in connection with the sale through a web site of compact discs, which defendants failed to ship within the promised time period. The District Court entered a Consent Decree [PDF] on March 6 barring defendants from further violation of the rule.
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Wednesday, April 3
The House and Senate are both in recess for the Spring District Work Period. Both bodies will return on Monday, April 8.
The Supreme Court of the U.S. is on recess until Monday, April 15.
10:00 AM. A group of trade associations will hold a press conference to announce the formation of a group named the High Tech Broadband Coalition. The speakers will be Robert Holleyman (P/CEO of the Business Software Alliance), Gary Shapiro (P/CEO of the Consumer Electronics Association), Jerry Jasinowski (President of the National Association of Manufacturers), George Scalise (President of the Semiconductor Industry Association), and Matthew Flanigan (President of the Telecommunications Industry Association). For more information, contact Jeff Joseph (CEA) at 703 907-7664 or Location: Lisagor Room, National Press Club, 529 14th St. NW, 13th Floor.
12:15 PM. The Federal Communications Bar Association's International Practice Committee will host a brown bag lunch. The speakers will be Tom Tycz (Chief of the FCC's International Bureau's Satellite Division), James Ball (Chief of the FCC's International Bureau's Policy Division), and Kathryn O'Brien (Chief of the FCC's International Bureau's Strategic Analysis and Negotiations Division). RSVP to Laurie Sherman at 202 223-7365 or Patricia Paoletta at 202 719-7532. Location: FCC, 445 12th Street, SW, Conference Room 6-B516.
Thursday, April 4
8:30 AM - 5:30 PM. Day one of a two day event hosted by the Department of Commerce's (DOC's) National Telecommunications and Information Administration (NTIA) titled "Spectrum Summit". The summit will address spectrum allocation and efficiency, the spectrum requirements of new technologies, and regulatory processes. See, NTIA notice and notice in Federal Register. Location: auditorium, Department of Commerce, 1401 Constitution Ave., NW.
2:00 - 4:00 PM. There will be a meeting of the FCC's Advisory Committee for the 2003 World Radiocommunication Conference. See, FCC notice [PDF], and notice in Federal Register. Location: FCC, Commission Meeting Room, Room TW-C305, 445 12th Street, SW.
4:00 PM. Dan Burk (Professor, University of Minnesota Law School) will give a lecture titled "Anti Circumvention Misuse". He will review the history of the equitable misuse doctrine in the context of patents and copyrights, and argue that the DMCA anti circumvention right is a new form of intellectual property that should be subject to the equitable misuse doctrine. For more information, contact Prof. Robert Brauneis at rbraun or (202) 994-6138. Location: The George Washington University Law School 720 20th Street, NW.
Friday, April 5
8:30 AM - 4:15 PM. Day two of a two day event hosted by the NTIA titled "Spectrum Summit". The summit will address spectrum allocation and efficiency, the spectrum requirements of new technologies, and regulatory processes. See, NTIA notice and notice in Federal Register. Location: Ronald Reagan International Trade Center, 1300 Pennsylvania Avenue, NW.
9:00 AM. The FCC's electronic filing systems will be shut down for maintenance purposes. This shut down will last through 1:00 PM on April 7. See, FCC notice.
9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in Global Naps Inc v. FCC, No. 01-1192. Judges Edwards, Roger and Tatel will preside. Location: 333 Constitution Ave. NW.
Extended deadline to submit comments to the Copyright Office in response to its Notice of Proposed Rulemaking on "the requirements for giving copyright owners reasonable notice of the use of their works for sound recordings under statutory license and for how records of such use shall be kept and made available to copyright owners." See, original notice in Federal Register, and extension notice in Federal Register.
Monday, April 8
The House and Senate return from the Spring District Work Period. The Senate is scheduled to meet at 3:00 PM.
9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in Morris Communications v. FCC, No. 01-1123. Judges Edwards, Tatel and Silberman will preside. Location: 333 Constitution Ave. NW.
Tuesday, April 9
4:00 PM. Margo Bagley (Emory University School of Law) will give a lecture titled "Patent First, Ask Questions Later: Morality as a Statutory Component of Patentability". For more information, contact  Robert Brauneis at rbraun or 202 994-6138. Location: George Washington University Law School, 2000 H Street, NW.