7/7. The Federal Trade Commission (FTC) issued an order [2 pages in PDF] titled "Order Reversing and Vacating the Initial Decision and Order and Remanding for Further Proceeding" in the FTC's proceeding titled "In the Matter of Union Oil Company of California". The full Commission reversed an administrative law judge's decision that the Noerr-Pennington doctrine prevents the FTC from pursing an antitrust enforcement action against Union Oil Company of California (Unocal) in connection with its making false representations to a government standards setting body regarding its patent rights.

The FTC also issued an opinion [56 pages in PDF] explaining its order. See also, FTC release.

This is an oil industry action. However, this will also affect the application of antitrust laws to technology companies that engage in misrepresentation regarding their patents and patent applications in standards setting processes.

The FTC filed its Administrative Complaint on March 4, 2003 alleging that Unocal subverted the California regulatory standard setting proceedings relating to low emissions gasoline standards, in violation of Section 5 of the FTC Act.

The complaint alleged that Unocal engaged in unfair methods of competition through knowing and willful misrepresentations, to the California Air Resources Board (CARB) and to competing gasoline refiners, that Unocal lacked, or would not assert, patent rights concerning automobile emissions research results. The complaint also alleged that Unocal induced the CARB to adopt standards that overlapped its patents, and that Unocal induced other refiners to reconfigure their refineries in ways that exposed them to Unocal patent claims.

On November 25, 2003, an FTC Administrative Law Judge issued his Initial Decision [74 pages in PDF] in the proceeding captioned "In the Matter of Union Oil Company of California". The ALJ dismissed the FTC's administrative complaint against Union Oil Company of California (Unocal) pursuant to the Noerr-Pennington doctrine, and because the FTC "lacks jurisdiction to decide the fundamental and substantial patent issues raised by the allegations of the Complaint."

The FTC wrote in its July 7 opinion that "A private business allegedly has used false and misleading statements to induce a government body to issue regulatory standards that conferred market power upon the firm. Respondent argues that, even taking the Complaint’s factual allegations as established as is required at this preliminary stage, its deliberate use of misrepresentations to secure monopoly power is protected from antitrust challenge under the Noerr-Pennington doctrine, which shelters certain petitioning for government action. We disagree."

See, Eastern R.R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127 (1961) and United Mine Workers v. Pennington, 381 U.S. 657 (1965).

See also, story titled "ALJ Dismisses FTC's Patent Ambush Complaint Against Unocal" in TLJ Daily E-Mail Alert No. 789, December 1, 2003.

The July 7 order states that "the Commission has determined to reverse and vacate the Initial Decision and to vacate the Order accompanying it, and to remand this matter for further proceedings."

The July 7 opinion was written by FTC Chairman Timothy Muris, and joined by the four other Commissioners. The November 25, 2003 Initial Decision was written by Administrative Law Judge Michael Chappell. This is Docket No. 9305. See also, FTC's collection of pleadings in this proceeding.

7/6. The U.S. Court of Appeals (DCCir) issued its opinion [PDF] in SBC v. FCC, denying a petition for review of the Federal Communications Commission's (FCC) $6 Million fine of SBC Communications for violating the terms of the order of the FCC approving of the merger of SBC and Ameritech.

The FCC released its Forfeiture Order on October 9, 2002. It fined SBC $6 Million for "violating a competition related condition that the FCC imposed when it approved the 1999 merger of SBC and Ameritech Corporation". It fined SBC for violating a provision pertaining to unbundling requirements of incumbent local exchange carriers (ILECs) under 47 U.S.C. § 251.

This is EB-01-IH-0030. See also, story titled "SBC Fined $6 Million for Failing to Provide Shared Transport" in TLJ Daily E-Mail Alert No. 527, October 10, 2002.

SBC argued in its petition for review that the forfeiture order violates the Fifth Amendment due process clause because SBC was not on fair notice of the duties under the merger agreement that the FCC accuses it of violating. SBC also argued that the forefeiture order is arbitrary and capricious. The Court of Appeals rejected these arguments, and denied the petition.

This case is SBC Communications v. FCC and USA, respondents, and CoreComm Communications and Z-Tel Communications, intervenors, U.S. Court of Appeals for the District of Columbia, App. Ct. No. 03-1118, a petition for review of a final order of the FCC.

7/7. The Federal Communications Commission (FCC) released a notice of proposed rulemaking (NPRM) [11 pages in PDF] that proposes rules that would "require that broadcasters retain recordings of their programming for some limited period of time (e.g., 60 or 90 days)".

The purpose of this is to facilitate investigations in enforcement proceedings against licensees that broadcast indecent, obscene or profane material, in violation of 18 U.S.C. § 1464. This statute provides that "Whoever utters any obscene, indecent, or profane language by means of radio communication shall be fined under this title or imprisoned not more than two years, or both".

Broadcast of material that may violate § 1464 often comes to the attention of the FCC via outraged viewers and listeners, who submit complaints, but not recordings or transcripts, to the FCC. Licensees then often offer defenses based upon there being no recording or transcript in the proceeding record.

The NPRM states that "we seek comment on enhancing our enforcement processes through proposed program recording retention requirements for broadcast stations in order to improve the adjudication of complaints." The FCC seeks comments on issues such as the duration of the retention of recordings, whether First Amendment rights are implicated, and whether requiring recordings would result in the infringement of any copyrights.

Commissioner Michael Copps wrote in a separate statement [PDF] that "The process by which the FCC has enforced the indecency laws has for too long placed inordinate responsibility upon the complaining citizen. When someone sends in a complaint, he or she is usually told to supply a recording of the program or a transcript of the offending statement, or the complaint will be dismissed. This policy ignores that it is the "Commission’s responsibility to investigate complaints that the law has been violated, not the citizen’s responsibility to prove the violations."

Public comments are due by July 30, 2004. Reply comments are due by August 30, 2004.

The FCC adopted this NPRM on June 21, 2004, but did not announce or release it until July 7. This is FCC 04-145 in MB Docket No. 04-232.

7/7. The General Accounting Office (GAO) released its prepared testimony [pages in PDF] titled "Department of Defense: Long-standing Problems Continue to Impede Financial and Business Management Transformation".

This report states that "DOD has little or no assurance that current business systems investments are being spent in an economically efficient and effective manner. DOD's current systems funding process has contributed to the evolution of an overly complex and error-prone information technology environment containing duplicative, nonintegrated, and stovepiped systems. Given that DOD spends billions of dollars annually on business systems and related infrastructure, it is critical that actions be taken to gain more effective control over such business systems funding." (See, page 33.)

This prepared testimony also examines a range of other problems with the DOD's business management systems. It was prepared for the House Committee on Government Reform.

7/7. The House began its consideration of HR 4754, the "Commerce, Justice, State and the Judiciary Appropriations Act, 2005" shortly after noon. Shortly before midnight, it postponed further consideration until Thursday, July 8.

Many of the agencies that are responsible for technology related matters are funded by this CJS bill. These include the Federal Communications Commission (FCC) and the Federal Trade Commission (FTC).

Also covered are the Department of Commerce (DOC), and its National Telecommunications and Information Administration (NTIA), U.S. Patent and Trademark Office (USPTO), National Institute of Standards and Technology (NIST), and Bureau of Industry and Standards (BXA/BIS). Also covered are the Department of Justice (DOJ), and its Federal Bureau of Investigation (FBI), Antitrust Division and Computer Crimes and Intellectual Property Section (CCIPS).

The USPTO section provides, in part, that "For necessary expenses of the United States Patent and Trademark Office provided for by law, including defense of suits instituted against the Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office, $1,314,653,000, which shall be derived from offsetting collections assessed and collected pursuant to 15 U.S.C. 1113 and 35 U.S.C. 41 and 376, and shall be retained and used for necessary expenses in this appropriation: Provided, That the sum herein appropriated from the general fund shall be reduced as such offsetting collections are received during fiscal year 2005, so as to result in a fiscal year 2005 appropriation from the general fund estimated at $0: Provided further, That during fiscal year 2005, should the total amount of offsetting fee collections be less than $1,314,653,000, this amount shall be reduced accordingly:"

The FTC section provides that $203,430,000 is appropriated for expenses. It also contains language regarding the telemarketing sales rule (TSR). It states that "Provided further, That $21,901,000 in offsetting collections derived from fees sufficient to implement and enforce the Telemarketing Sales Rule, promulgated under the Telephone Consumer Fraud and Abuse Prevention Act (15 U.S.C. 6101 et seq.), shall be credited to this account, and be retained and used for necessary expenses in this appropriation".

7/7. The House amended and passed HR 4218, the "High-Performance Computing Revitalization Act of 2004", by voice vote.

7/7. The House amended and passed HR 4516, "Department of Energy High-End Computing Revitalization Act of 2004", by voice vote.

7/7. President Bush nominated Keith Starrett to be a Judge of the U.S. District Court for the Southern District of Mississippi. This is the Judgeship previously held by Judge Charles Pickering. Bush made a recess appointment on January 16, 2004 of Judge Pickering to the U.S. Court of Appeals for the 5th Circuit. See, story titled "Bush Gives Judge Pickering a Recess Appointment" in TLJ Daily E-Mail Alert No. 818, January 19, 2004. See also, White House release of July 7, 2004.

7/7. President Bush met with, and gave a speech in support of, three men nominated by him for federal judgeships in North Carolina -- Judge Terrence Boyle, Robert Conrad, and Magistrate Judge Jim Dever. Senate Democrats are blocking consideration of their nominations. Judge Boyle, who is the Chief Judge of the U.S. District Court for the Eastern District of North Carolina, has been nominated to be a Judge of the U.S. Court of Appeals for the 4th Circuit. Conrad and Dever have been nominated to be U.S. District Court Judges. Bush stated that "Their nominations are being held up, and it's not right and it's not fair. The people of North Carolina deserve better. These judges deserve better treatment in the United States Senate. A minority of senators apparently don't want judges who strictly interpret and apply the law. Evidently, they want activist judges who will rewrite the law from the bench. I disagree. Legislation should come from the legislative branch, not from the judiciary." Bush also gave numerous speeches, particularly in Southern states, during the 2002 midterm elections, in which he raised the issue of judicial nominations. See also, White House release.

7/7. President Bush met with, and gave a speech in support of, six persons nominated by him to for federal judgeships in Michigan. Judge David McKeague, Henry Saad, Susan Neilson, and Richard Griffin have been nominated to be Judges of the U.S. Court of Appeals for the 6th Circuit. Judge McKeague is a Judge of the U.S. District Court for the Western District of Michigan. Thomas Ludington and Daniel Ryan have been nominated to be a Judges of the U.S. District Court for the Eastern District of Michigan. Senate Democrats are blocking consideration of their nominations.

7/6. Bill Huber was named Associate Division Chief of the Federal Communications Commission's (FCC) Wireless Telecommunications Bureau's (WTB) Auctions and Spectrum Access Division (ASAD). He went to work for the FCC in 2000. Before that, he worked for the law firm of Wilkinson Barker & Knauer. Erik Salovaara was named Deputy Associate Division Chief of the ASAD. He went to work for the FCC in 2001. Before that, he worked for the law firm of Ross Dixon & Bell. Brian Carter was named Special Counsel in the ASAD. Rita Cookmeyer was named Financial Policy Analyst in the ASAD. See, FCC release [PDF].

The House will meet at 10:00 AM. It will continue its consideration of HR 4754, the "Commerce, Justice, State and the Judiciary Appropriations Act, 2005" See, Republican Whip notice.

The Senate will meet at 10:00 AM. It may resume consideration of S 2062, the "Class Action Fairness Act of 2004".

9:30 AM. The Federal Communications Commission (FCC) will hold a meeting. See, agenda [PDF]. The event will be webcast. Location: FCC, 445 12th Street, SW, Room TW-C05 (Commission Meeting Room).

9:30 AM. The Senate Judiciary Committee will hold an executive business meeting. The agenda includes consideration of S 1635, the "L-1 Visa (Intracompany Transferee) Reform Act of 2003", and consideration of several judicial nominees, including that of Claude Allen to be a Judge of the U.S. Court of Appeals for the 4th Circuit. Press contact: Margarita Tapia (Hatch) at 202 224-5225 or David Carle (Leahy) at 202 224-4242. See, notice. Location: Room 226, Dirksen Building.

10:00 AM. The House Judiciary Committee's Subcommittee on Courts, the Internet, and Intellectual Property will meet to mark up HR 4586, the "Family Movie Act of 2004". This bill would permit home viewers of DVDs to use software that filters out certain types of content. The meeting will be webcast by the Committee. Press contact: Jeff Lungren or Terry Shawn at 202 225-2492. Location: Room 2141, Rayburn Building.

10:00 AM. The House Ways and Means Committee will meet to mark up HR 4759, the "United States-Australia Free Trade Agreement Implementation Act". Location: Room 1100, Longworth Building.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Business Objects v. MicroStrategy, No. 04-1009. Location: Courtroom 203, 717 Madison Place, NW.

1:30 PM. The House Commerce Committee's Subcommittee on Commerce, Trade and Consumer Protection will hold a hearing titled "FASB Proposals on Stock Option Expensing". The witnesses will be David Walker (General Accounting Office), Robert Herz (Chairman of the Financial Accounting Standards Board), Rick White (Technet and International Employee Stock Options Coalition), and Steven Mayer (Human Genome Sciences). Location: Room 2123, Rayburn Building.

The Department of Commerce's (DOC) Bureau of Industry and Security will hold a seminar titled "Essentials of Export Controls". The price to attend is $75. For more information, contact Yvette Springer at 202 482-6031. Location: Ronald Reagan Trade Center, Washington DC.

Deadline to submit comments to the Federal Communications Commission (FCC) in response to its notice of proposed rulemaking (NPRM) regarding a national one call notification system. The FCC adopted this NPRM on May 13, 2004, and released the text [34 pages in PDF] on May 14, 2004. See, story titled "FCC Adopts NPRM Regarding One Call Notification System" in TLJ Daily E-Mail Alert No. 899, May 17, 2004. This NPRM is FCC 04-111 in CC Docket No. 92-105. See, notice in the Federal Register, June 8, 2004, Vol. 69, No. 110, at Pages 31930 - 31939.

The House is scheduled to meet at 9:00 AM. See, Republican Whip notice.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Chamberlain Group v. Skylink Technologies, No. 04-1118. Location: Courtroom 402, 717 Madison Place, NW.

12:00 NOON. The Cato Institute will host a panel discussion titled "Recommendations for Tort and Class Action Reform". The speakers will be Robert Levy and Mark Moller, both of Cato. Lunch will be served. See, notice and registration page. Location: Room B-339, Rayburn Building.

The Department of Commerce's (DOC) Bureau of Industry and Security will hold a seminar titled "Export Management Systems". The price to attend is $100. For more information, contact Yvette Springer at 202 482-6031. Location: Ronald Reagan Trade Center, Washington DC.

Extended deadline to submit comments to the Federal Trade Commission (FTC) for its June 21, 2004 workshop on the uses, efficiencies, and implications for consumers associated with radio frequency identification (RFID) technology. See, original notice in the Federal Register, April 15, 2004, Vol. 69, No. 73, at Pages 20523 - 20525, and notice [PDF] in the Federal Register (May 24, 2004, Vol. 69, No. 100, at Pages 29540 - 29541) extending the deadline to July 9. See also, FTC web page for this workshop.

10:00 AM. The Heritage Foundation will host two panel discussions titled "Scholars & Scribes Review the Rulings: The Supreme Court's 2003-2004 Term". See, notice and registration page. Location: 214 Massachusetts Ave., NE.

6:00 - 8:15 PM. The DC Bar Association's Intellectual Property Law Section, and other sections, will host a continuing legal education (CLE) program titled "Trade Secrets: The Next Level". The speaker will be Milton Babirak of the law firm of Babirak Vangellow & Carr. Prices vary. See, notice. For more information, contact 202-626-3488. Location: D.C. Bar Conference Center, B-1 Level, 1250 H Street, NW.

6:30 PM. The U.S. Telecom Association (USTA) and the Cellular Telecommunications and Internet Association (CTIA) will host an event titled "Communications Good Scout Award Dinner". The dinner will honor Rep. Fred Upton (R-MI), the Chairman of the Subcommittee on Telecommunications and the Internet. The price to attend ranges from $250 to $20,000. Proceeds will go to the National Capital Area Council of the Boy Scouts of America. Location: Renaissance Washington Hotel, 999 9th Street, NW.

Deadline to submit comments to the Federal Communications Commission (FCC) in response to its further notice of proposed rulemaking (FNPRM) regarding Aviation Radio Service. This FNPRM is FCC 03-238 in WT Docket No. 01-289. See, notice in the Federal Register, April 12, 2004, Vol. 69, No. 70, at Pages 19140 - 19147.

9:30 AM. The North American Numbering Council (NANC) will meet. Location: Federal Communications Commission (FCC), 445 12th Street, SW, Room TW-C305.

9:30 AM. The Senate Commerce Committee will hold a hearings on the proposed reauthorization of the Corporation for Public Broadcasting. Location: Room 253, Russell Building.

8:30 AM - 12:00 NOON. The DC Bar Association's Intellectual Property Law Section will host a program titled "The ABC's Of Patent, Trademark And Copyright Law". The speakers will be Steven Warner (Fitzpatrick Cella Harper & Scinto), Gary Krugman (Sughrue Mion), John Hornick (Finnegan Henderson), and Aoi Nawashiro (Browdy & Neimark). Prices vary. A breakfast buffet is included. See, notice. For more information, call 202 626-3463. Location: D.C. Bar Conference Center, B-1 Level, 1250 H Street, NW.

9:00 AM - 1:30 PM. The National Telecommunications and Information Administration (NTIA) will host an event titled "Kids.us Forum: Developing a Safe Place on the Internet for Children". See, NTIA notice and notice in the Federal Register, June 4, 2004, Vol. 69, No. 108, at Pages 31590-31591. Location: Department of Commerce, 1401 Constitution Ave., NW, Room 4830.

10:00 AM. The House Armed Services Committee and the House International Relations Committee will hold a joint hearing on the "Role of Arms Export Policy in the Global War on Terror". The witnesses will be Lincoln Bloomfield (Assistant Secretary of State, Bureau of Political-Military Affairs), Lisa Bronson (Deputy Under Secretary of Defense for Technology Security Policy and Counterproliferation), and Peter Lichtenbaum (Assistant Secretary for Export Administration, Bureau of Industry and Securities, Department of Commerce). The hearing notice does not disclose the extent to which the hearing might focus on the export of items involving information and communications technologies. Location: Room 2118, Rayburn Building.

10:00 AM. The Senate Commerce Committee's Subcommittee on Communications will hold a hearing on implementation of the Nielsen local people meter TV rating system. Location: Room 253, Russell Building.

Congressional Internet Caucus' Advisory Committee will host a panel discussion titled "The DMCA Revisited: What's Fair?". Lunch will be served.

12:15 - 2:00 PM. The Forum on Technology & Innovation (FTI) will host a luncheon discussion titled "The Policy Implications of Open Source Software". The speakers will be Andrew Morton (lead maintainer for the Linux public production kernel), Bill Guidera (Microsoft), Cheryl Bruner (IBM), and Morgan Reed (Association for Competitive Technology). See, notice. Lunch is available at 12:15 PM. The event will be webcast by the FTI. The program will begin at 12:30 PM. Register by 5:00 PM on  July 13 by by fax at 202 682-5150 or at forum@compete.org; provide your name, title, office, and e-mail address. Location: Room 902, Hart Building, Capitol Hill.

12:15 PM. The Federal Communications Bar Association's (FCBA) Cable Practice Committee and Young Lawyers Committee will host a brown bag lunch. The topic will be "The Basics of A La Carte Cable Pricing". For more information, contact Natalie Roisman at natalie.roisman@fcc.gov, or Jason Freidrich at jason.friedrich@dbr.com. Location: Willkie Farr & Gallagher, 1875 K Street, NW, 2d Floor.

2:00 PM. The House Armed Services Committee's Tactical Air Land Forces Subcommittee will hold a hearing on "Small Business Innovation and Technology". Location: Room 2118, Rayburn Building.

6:00 - 9:30 PM. The DC Bar Association will host a continuing legal education (CLE) program titled "Antitrust Investigations in the Era of Enron and WorldCom". The speakers will include Ray Hartwell (Hunton & Williams), Scott Hammond (Director of Criminal Enforcement, Antitrust Division, Department of Justice), and Donald Klawiter (Morgan Lewis & Bockius). Prices vary. See, notice. For more information, call 202 626-3488. Location: D.C. Bar Conference Center, B-1 Level, 1250 H Street, NW.

Extended deadline to submit comments to the Federal Communications Commission (FCC) in response to its Public Notice (DA 04-1454) regarding a la carte and themed programming and pricing options for programming distribution on cable TV and direct broadcast satellite systems. This is MB Docket No. 04-207. See, notice of extension [PDF].

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