5/28. The Wall Street Journal published a story titled "News Corp. Scraps Internet Satellites" in its May 28, 2004 issue, at page A3. This story states that "News Corp., which controls the country's largest satellite-to-home TV broadcaster, is scrapping plans to use advanced satellites for delivering Internet access across the U.S."

The satellite program involved is titled "SPACEWAY". This is a program of Directv. News Corp. acquired a 34% interest in Hughes Electronics Corporation in December of 2003. Previously, Directv was a unit of Hughes.

Chase Carey, P/CEO of The DIRECTV Group, Inc., promptly replied in a release. He stated that "The article in today's Wall Street Journal contained or implied a number of inaccurate statements from unnamed sources regarding Spaceway. First, as we have previously stated, our goal has been to utilize the satellites for both DIRECTV's video business and broadband purposes. This is not new news and was included in our FCC filing last year. Second, we have not scrapped plans to use the satellites for broadband access. In fact, the satellites are being designed specifically so they can be used for video or broadband. Finally, we are committed to launching two satellites in early 2005 with a third satellite as a ground spare."

Carey added that "While our plans are still in development and decisions will ultimately be made in the best interest of the overall DIRECTV Group, we consider both the video and broadband capabilities of the Spaceway satellites to be an important part of our future."

In April 2003, News. Corp. announced plans to acquire a controlling interest in Hughes. However, to complete the transaction, News Corp. first needed regulatory approvals. As part of the process of obtaining approval, News Corp. made representations to regulators, and to Members of Congress, regarding its intentions. It stated that it planned to provide broadband internet access via satellite, and that this would serve the public interest.

The Federal Communications Commission (FCC), whose approval was required for the transfer of licenses associated with the transaction, has a goal of attaining widespread broadband availability over multiple platforms.

In addition, some Members of Congress, especially those from rural districts, have a particular interest in seeing satellite companies provide internet access.

Murdoch's Congressional Testimony. Rupert Murdoch testified before the House Judiciary Committee on May 8, 2003 regarding the then pending proposed acquisition.

Murdoch stated in his prepared testimony that "News Corp. will work aggressively to build on the services already provided by Hughes to make broadband available throughout the U.S., particularly in rural areas. Broadband solutions for all Americans could come from partnering with other satellite broadband providers, DSL providers, or new potential broadband providers using broadband over power line systems, or from other emerging technologies. News Corp. believes it is critical that consumers have vibrant broadband choices that compete with cable’s video and broadband services on capability, quality and price." See also, story titled "Murdoch Defends News Corp.'s DirecTV Deal" in TLJ Daily E-Mail Alert No. 659, May 12, 2003.

News Corp.'s Application to the FCC. News Corp., General Motors, and Hughes filed a joint application in May 2003 with the FCC for authority to transfer control of licenses.

This application includes a section titled "The Proposed Transaction Will Yield Significant Public Interest Benefits". Specifically, it asserts that "News Corp. is dedicated to increasing ... broadband services Hughes provides to American customers." (See, page 20.)

The Wall Street Journal article states that Directv is scrapping plans to use Spaceway for broadband access. News Corp.'s Chase Carey responded that "our goal has been to utilize the satellites for both DIRECTV's video business and broadband purposes. This is not new news and was included in our FCC filing last year."

Actually, what News Corp. stated in its FCC filing last year is that "The focus of the SPACEWAY program, however, is the provision of broadband services ..." (See, joint application, at page 29.)

This filing is 794 pages, and is published in the FCC website in 32 separate files. The FCC proceeding on this application is MBDocket No. 03-124.

FCC Approval of the Transaction. The FCC's order approving the transaction discussed the public interest benefits of the transaction, including those pertaining to satellite broadband.

The FCC announced its approval of the transaction on December 19, 2003. On January 14, 2004, the FCC released its Memorandum Opinion and Order (MOO) [228 pages in PDF]. This proceeding is titled "In the Matter of General Motors Corporation and Hughes Electronics Corporation, Transferors, And The News Corporation Limited, Transferee, For Authority to Transfer Control". This proceeding is MB Docket No. 03-124. The MOO is FCC 03-330. See also, stories titled "FCC Approves News Corps.' Acquisition of DirecTV, With Conditions" in TLJ Daily E-Mail Alert No. 804, December 22, 2003"; and "FCC Releases MOO Approving News Corp.'s Acquisition of DirecTV" in TLJ Daily E-Mail Alert No. 816, January 15, 2004.

The FCC's MOO states, at paragraph 329, that "Applicants further assert that News Corp. will work aggressively to expand broadband options to better compete with cable's video and broadband offerings." It further states, at paragraph 331, that "Applicants acknowledge that Hughes already provides broadband and could engage in various partnering solutions, but maintain that, as a result of the proposed transaction, DirecTV will be able to increase these offerings, due to its improved capital structure."

The FCC's MOO also concludes, at paragraph 288, that "EchoStar's allegation that following the transaction DirecTV will abandon all forms of broadband access in favor of partnerships with providers of cable broadband services is wholly unsupported and defies the evidence contained in several recently announced partnerships with major providers of DSL broadband access."

In the end, the FCC imposed no conditions requiring News Corp. to expand or maintain its satellite broadband program.

See also, story titled "EchoStar DirecTV Merger and Broadband Internet Access" in TLJ Daily E-Mail Alert No. 321, December 5, 2001.

5/28. The U.S. Court of Appeals (11thCir) issued its opinion in DIRECTV v. Brown, holding that the award of liquidated damages, under 18 U.S.C. § 2520(c)(2), for a violation of the Electronic Communications Privacy Act (ECPA) of 1986, is discretionary. The ECPA violation in this case is satellite transmission piracy.

Directv is a direct broadcast satellite (DBS) service provider. It uses conditional access technology that encrypts its satellite transmissions; it then provides its paying customers with access cards that decrypt these satellite transmissions.

Michael Brown is a thief. He bought an illegal pirate access device that he used to view encrypted transmissions, without paying Directv.

Directv filed a complaint in U.S. District Court (MDFl) against Brown and others alleging violation of 47 U.S.C. § 605(a) and 18 U.S.C. § 2511(1)(a).

Brown did not appear. Directv obtained a judgment by default, in which it was awarded $3886.64 in actual damages for Brown's violation of 47 U.S.C. § 605(a), attorney's fees of $752.50, and costs of $195. The District Court refused to award Directv liquidated damages under § 2520(c)(2).

Directv appealed. The Appeals Court affirmed. It held that the award of liquidated damages under § 2520(c)(2) is discretionary, and that the District Court did not abuse its discretion in refusing to award liquidated damages.

47 U.S.C. § 605(a) provides, in part, that "no person receiving, assisting in receiving, transmitting, or assisting in transmitting, any interstate or foreign communication by wire or radio shall divulge or publish the existence, contents, substance, purport, effect, or meaning thereof, except through authorized channels of transmission or reception, ..."

18 U.S.C. § 2511(1)(a) pertains to "Interception and disclosure of wire, oral, or electronic communications prohibited". It creates a civil remedy for interception of certain communications, including satellite piracy. It provides, in part, that "any person who ... intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication ... shall be punished as provided in subsection (4) or shall be subject to suit as provided in subsection (5)."

18 U.S.C. § 2520 pertains to "Recovery of civil damages authorized". Subsection (a) provides that "... any person whose wire, oral, or electronic communication is intercepted, disclosed, or intentionally used in violation of this chapter may in a civil action recover from the person or entity, other than the United States, which engaged in that violation such relief as may be appropriate."

Subsection (c)(2) provides that "the court may assess as damages whichever is the greater of -- (A) the sum of the actual damages suffered by the plaintiff and any profits made by the violator as a result of the violation; or (B) statutory damages of whichever is the greater of $100 a day for each day of violation or $10,000."

The Appeals Court, noting that subsection (c)(2) uses the word "may", rather than "shall", held that the award of liquidated damages under this subsection lies within the discretion of the court.

Other federal circuits have addressed the issue. The 7th Circuit held that the award of liquidated damages here is mandatory. See, Rodgers v. Wood, 910 F.2d 444 (1990). In contrast, the 4th, 6th and 8th Circuits held, like the 11th, that the award of liquidated damages here is discretionary. See, Nalley v. Nalley, 53 F.3d 649 (4th Cir. 1995); Dorris v. Absher, 179 F.3d 420 (6th Cir. 1999); and Reynolds v. Sears, 93 F.3d 428 (8th Cir. 1996).

The present case is DirecTV, Inc. v. Michael Brown, U.S. Court of Appeals for the 11th Circuit, No. 03-16094, an appeal from the U.S. District Court for the Middle District of Florida, D.C. No. 03-00234-CV-ORL-22-KRS.

5/28. The General Accounting Office (GAO) released a report [25 pages in PDF] titled "Information Security: Information System Controls at the Federal Deposit Insurance Corporation". The report identifies "computer control weaknesses in FDIC's information systems".

The report states that the Federal Deposit Insurance Company (FDIC) "had not adequately limited the access granted to all authorized users or completely secured access to its network. The risk created by these access weaknesses was heightened because FDIC had not completed a program to fully monitor access activity to identify and investigate unusual or suspicious access patterns that could indicate unauthorized access. As a result, critical financial and sensitive personnel and bank examination information was at risk of unauthorized disclosure, disruption of operations, or loss of assets."

The report adds that "A key reason for FDIC’s continuing weaknesses in information system controls is that it had not yet fully established a comprehensive security management program to ensure that effective controls are established."

5/28. The Federal Communications Commission's (FCC) Office of Engineering and Technology (OET) extended the deadline for submitting reply comments in response to the notice of proposed rulemaking (NPRM) regarding broadband over powerline (BPL).

The original deadline for reply comments was June 1. It has been extended to June 22. See, Order Granting Extension of Time [3 pages in PDF].

The FCC adopted this NPRM on February 12, 2004. See, story titled "FCC Adopts Broadband Over Powerline NPRM" in TLJ Daily E-Mail Alert No. 836, February 13, 2004. The FCC released the text of this NPRM on February 23, 2004. This NPRM is FCC 04-29 in ET Docket Nos. 03-104 and 04-37. See, notice in the Federal Register, March 17, 2004, Vol. 69, No. 52, at Pages 12612-12618.

The FCC has already received over 1200 comments in this proceeding. The vast majority of these comments are very brief statements of amateur radio operators in opposition to BPL. However, there are also numerous substantial comments from a wide variety of interests, including BPL provider, electric utility, BPL equipment, consumer electronics, telephone, aircraft, aeronautical radio, law enforcement, ham radio, and others.

5/28. Roscoe Howard, the U.S. Attorney for the District of Columbia, resigned. Kenneth Wainstein was named interim U.S. Attorney by Attorney General John Ashcroft. Wainstein was Chief of Staff to FBI Director Robert Mueller. Before that, he was a long time employee of the U.S. Attorneys Office for the District of Columbia. See, DOJ release.

5/28. The Federal Communications Commission (FCC) announced a new contractor for FCC document search, retrieval and duplication. See, FCC release [PDF].

The House will return from the Memorial Day recess. It will meet at 2:00 PM for legislative business. It will consider several non-technology related items under suspension of the rules. See, Republican Whip Notice.

The Senate will return from the Memorial Day recess. It will meet at 10:00 AM. At 2:15 PM, it will resume consideration of the motion to proceed to S 2062, the "Class Action Fairness Act of 2004".

The Supreme Court will return from recess.

Day one of a four day conference and expo hosted by the Wireless Communications Association International (WCA) titled "WCA 2004". See, agenda. Location: Marriott Wardman Park Hotel, 660 Woodley Park Road, NW.

EXTENDED TO JUNE 22. Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its notice of proposed rulemaking (NPRM) regarding broadband over powerline systems. The FCC adopted this NPRM on February 12, 2004. See, story titled "FCC Adopts Broadband Over Powerline NPRM" in TLJ Daily E-Mail Alert No. 836, February 13, 2004. The FCC released the text of this NPRM on February 23, 2004. This NPRM is FCC 04-29 in ET Docket Nos. 03-104 and 04-37. See, notice in the Federal Register, March 17, 2004, Vol. 69, No. 52, at Pages 12612-12618. See, Order Granting Extension of Time [3 pages in PDF].

12:30 PM. The Department of Homeland Security's (DHS) Under Secretary Asa Hutchinson will announce the award of the US-VISIT prime contract. Press contact: Kimberly Weissman at 202 927-8727. Location: U.S. VISIT Office, 1616 N. Fort Myer Dr., Rosslyn, VA.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rule Making and Order [53 pages in PDF] regarding cognitive radio technologies and software defined radios. This item is FCC 03-322 in ET Docket No. 03-108 and ET Docket No. 00-47. See, notice in the Federal Register, February 17, 2004, Vol. 69, No. 31, at Pages 7397 - 7411, and story titled "FCC Releases Cognitive Radio Technology NPRM" in TLJ Daily E-Mail Alert No. 808, December 31, 2003.

Deadline to submit comments to the Federal Trade Commission (FTC) in response to its notice of proposed rulemaking (NPRM) regarding amending the Telemarketing Sales Rule (TSR) to revise the fees charged to entities accessing the National Do Not Call Registry. See, notice in the Federal Register, April 30, 2004, Vol. 69, No. 84, at Pages 23701 - 23705.

The House will meet at 10:00 AM for legislative business. It will consider several non-technology related items under suspension of the rules. See, Republican Whip Notice.

9:30 - 10:30 AM. The Federal Communications Commission's (FCC) Media Security and Reliability Council will meet. See, FCC notice [PDF] of May 26, 2004, and notice in the Federal Register, April 30, 2004, Vol. 69, No. 84, at Page 23758. Location: FCC, Room TW-C305, 445 12th St., SW.

9:30 AM - 4:30 PM. The Judges Panel of the Malcolm Baldrige National Quality Award will hold a closed meeting. See, notice in the Federal Register, May 4, 2004, Vol. 69, No. 86, at Page 24571. Location: National Institute of Standards and Technology, Building 222, Red Training Room, Gaithersburg, MD.

10:00 AM. The House Commerce Committee's Subcommittee on Telecommunications and the Internet will hold a hearing titled "Advancing the DTV Transition: An Examination of the FCC Media Bureau Proposal". The hearing will be webcast. Press contact: Jon Tripp (Barton) at 202-225-5735 or Sean Bonyun (Upton) at 202-225-3761. Location: Room 2123, Rayburn Building.

10:45 AM - 1:30 PM. The Federal Communications Commission (FCC) and the Department of Homeland Security (DHS) will sponsor a public forum on how "the relationship between local media and government can be strengthened to support local market operational readiness to cope with terrorist attacks, natural disasters or other similar occurrences". Press contact: Meribeth McCarrick at 202 418-0654 or Meribeth.McCarrick@fcc.gov. See, notice [PDF]. Location: FCC, Commission Meeting Room, 445 12th Street, SW.

12:00 NOON. The Progress and Freedom Foundation (PFF) will host a luncheon program titled "The Supreme Court and the Future of the Telecom Act of 1996". The speakers will be Kenneth Starr (Kirkland & Ellis), Christopher Wright (Harris Wiltshire & Grannis), and Randolph May (PFF). Lunch will be served at 12:00 NOON. The program will begin at 12:30 PM. See, notice and registration page. Press contact: David Fish at 202 289-8928 or dfish@pff.org. Location: First Amendment Room, National Press Club, 529 14th St. NW, 13th Floor.

1:30 PM. (or 2:00 PM?) The House Government Reform Committee's Subcommittee on Technology, Information Policy, Intergovernmental Relations and the Census will hold an oversight hearing titled "Who Might be Lurking at Your Cyber Front Door? Is Your System Really Secure? Strategies and Technologies to Prevent, Detect and Respond to the Growing Threat of Network Vulnerabilities." The witnesses will be Karen Evans (Office of Management and Budget), Robert Dacey (General Accounting Office), Amit Yoran (National Cyber Security Division, Department of Homeland Security), Dawn Meyerriecks (Defense Information Systems Agency), Daniel Mehan (Federal Aviation Administration), Dubhe Beinhorn (Juniper Federal Systems), Scott Culp (Microsoft), Louis Rosenthal (ABN AMRO Services Company), Marc Maiffret (eEye Digital Security), Steve Solomon (Citadel Security Software). Press contact: Bob Dix at 202 225-6751. Location: Room 2154, Rayburn Building.

2:30 PM. The Senate Commerce Committee will hold a hearing on several nominees, including Deborah Majoras (to be Chairman of the Federal Trade Commission), Jon Leibowitz (to be a Commissioner of the FTC), Brett Palmer (to be Assistant Secretary for Legislative and Intergovernmental Affairs at the Department of Commerce), and Benjamin Wu (to be Assistant Secretary for Technology Policy at the Department of Commerce). Press contact: Rebecca Fisher at 202 224-2670. Location: Room 253, Russell Building.

Day two of a four day conference and expo hosted by the Wireless Communications Association International (WCA) titled "WCA 2004". At 8:30 - 10:30, AM Federal Communications Commission (FCC) Commissioners Kathleen Abernathy and Jonathan Adelstein, and NTIA acting Director Michael Gallagher are scheduled to speak on a panel titled "VoIP As A Frontier For Wireless Growth". At 11:30 AM - 12:45 PM, Ed Thomas (Chief of the FCC's Office of Engineering and Technology), Tom Hazlett (a former Chief Economist of the FCC), and others are scheduled to speak on "The FCC's Interference Temperature Plan: Threat or Opportunity?" at 10:45 AM. See, agenda. Location: Marriott Wardman Park Hotel, 660 Woodley Park Road, NW.

The House will meet at 10:00 AM for legislative business. It will consider several non-technology related items under suspension of the rules. See, Republican Whip Notice.

8:30 AM - 3:00 PM. The National Institute of Standards and Technology's (NIST) Malcolm Baldrige National Quality Award Board of Overseers will hold a public meeting. See, notice in the Federal Register, May 14, 2004, Vol. 69, No. 94, Page 26808 - 26809.

9:00 AM - 12:30 PM. The National Institute of Standards and Technology's (NIST) will hold a closed meeting to provide a briefing on Special Publication 800-37, titled "Guide for the Security Certification and Accreditation of Federal Information Systems". For more information, contact Angela Ellis at 301 975-3881 or angela.ellis@nist.gov. Location: Green Auditorium, NIST Main Campus, Gaithersburg, MD.

9:30 AM. The House Commerce Committee will meet to markup HR 3266, the "Faster and Smarter Funding for First Responders Act of 2003" and HR __, the "Satellite Home Viewer Extension and Reauthorization Act". The meeting will be webcast. Press contact: Larry Neal or Jon Tripp at 202 225-5735. Location: Room 2123, Rayburn Building.

12:00 NOON - 1:30 PM. The DC Bar Association's Intellectual Property Law Section and Trade Secrets Committee will host a program titled "Licensing Trade Secrets And Know-How: Realizing Value From IP's Forgotten Species". The speaker will be Ronald Bleeker of the law firm of Finnegan Henderson. Prices vary. See, notice. For more information, contact 202 626-3463. Location: D.C. Bar Conference Center, B-1 Level, 1250 H Street, NW.

6:00 - 8:00 PM. The Federal Communications Bar Association (FCBA) will host an event titled "70th Anniversary of the Communications Act". See, registration form [PDF]. Prices vary. Location: Washington Hilton, 1919 Connecticut Ave., NW.

Day three of a four day conference and expo hosted by the Wireless Communications Association International (WCA) titled "WCA 2004". At 8:30 AM, there will be a panel discussion titled "Unlocking MDS & ITFS Spectrum Values With Regulatory Reform". The speakers will be Paul Sinderbrand (Wilkinson Barker Knauer), Bryan Tramont (FCC Chief of Staff), a representative of the FCC Wireless Telecommunications Bureau, Patrick Gossman (Chairman of the National ITFS Association), and Todd Rowley (Sprint). At 9:30 AM, there will be a panel discussion titled "FCC View From the Eighth Floor". The speakers will be Barry Ohlson (Senior Legal Advisor to FCC Commissioner Jonathan Adelstein), Samuel Feder (Legal Advisor to FCC Commissioner Kevin Martin), Paul Margie (Legal Advisor to FCC Commissioner Michael Copps), Lauren Van Wazer (Chairman of the FCC Broadband Wireless Task Force), and Mary Greczyn (Freedom Technologies). See, agenda. Location: Marriott Wardman Park Hotel, 660 Woodley Park Road, NW.

Deadline to submit comments to the Federal Communications Commission (FCC) in response to its notice of propose rulemaking (NPRM) regarding imposing mandatory minimum Customer Account Record Exchange (CARE) obligations on all local and interexchange carriers. This item is FCC 04-50 in CG Docket No. 02-386. See, notice in the Federal Register, April 19, 2004, Vol. 69, No. 75, at Pages 20845 - 20851.

The Federal Communications Bar Association's (FCBA) Wireless Committee will host a luncheon event. The speaker will be Ed Thomas, Chief of the Federal Communications Commission's (FCC) Office of Engineering and Technology (OET). The price to attend is $15.00. RSVP by Tuesday, June 1 to wendy@fcba.org. Location: Sidley Austin, 1501 K Street, NW, 6th Floor.

Day four of a four day conference and expo hosted by the Wireless Communications Association International (WCA) titled "WCA 2004". See, agenda. Location: Marriott Wardman Park Hotel, 660 Woodley Park Road, NW.

Deadline to submit comments to the Federal Trade Commission (FTC) in response to its notice of proposed rulemaking (NPRM) regarding its Hart Scott Rodino premerger notification rules. See, notice in the Federal Register, April 8, 2004, Vol. 69, No. 68, at Pages 18685 - 18721.

Deadline to submit comments to the Executive Office of the President's (EOP) Office of Management and Budget (OMB) on the Small Business Paperwork Relief Act Task Force draft report that makes recommendations concerning the improvement of electronic dissemination of information collected under federal requirements, and a plan to develop an interactive government wide internet program to identify applicable collections and facilitate compliance. See, notice in the Federal Register, May 5, 2004, Vol. 69, No. 87, at Pages 25147 - 25157.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its notice of proposed rulemaking (NPRM) regarding the provision of international telecommunications service. This NPRM is FCC 04-40 in IB Docket No. 04-47. See, notice in the Federal Register, March 22, 2004, Vol. 69, No. 55, at Pages 13276 - 13278.