9/10. The U.S. District Court (EDPenn) issued its Order [3 pages in PDF] and memorandum [110 pages in PDF] in Center for Democracy and Technology v. Pappert, holding that the state of Pennsylvania's Internet Child Pormography Act, which is codified at 18 Pa. Cons. Stat. § 7621-7630, is unconstitutional under both the First Amendment and the dormant commerce clause. The Court also enjoined Pennsylvania from enforcing it.

Pennsylvania passed a statute that requires internet service providers (ISP) to remove or disable access to child pormography items "residing on or accessible through its service"´ after notification by the Pennsylvania Attorney General.

The Center for Democracy and Technology (CDT), the ACLU, and PlantageNet, Inc., an ISP, filed a complaint in U.S. District Court against Gerald Pappert, in his capacity as Attorney General of Pennsylvania, challenging the constitutionality of the statute.

The Court concluded that "with the current state of technology, the Act cannot be implemented without excessive blocking of innocent speech in violation of the First Amendment. In addition, the procedures provided by the Act are insufficient to justify the prior restraint of material protected by the First Amendment and, given the current design of the Internet, the Act is unconstitutional under the dormant Commerce Clause because of its effect on interstate commerce."

The Court's ruling on the First Amendment claim was predictable. However, the commerce clause ruling is noteworthy, even though the Court only devoted a few pages in a 110 page opinion to this claim. The holding on the commerce clause might be pertinent to a wider range of state statutes that affect electronic commerce.

Article I, Section 8, of the Constitution provides that "The Congress shall have Power ... to regulate Commerce with foreign Nations, and among the several States ..." The dormant commerce clause is the judicial concept that the Constitution, by delegating certain authority to the Congress to regulate commerce, thereby bars the states from legislating on certain matters that affect interstate commerce, even in the absence of Congressional legislation. It is applied to block states from regulating in a way that materially burdens or discriminates against interstate commerce. See, Gibbons v. Ogden, 22 U.S. 1 (1824), and Cooley v. Board of Wardens, 53 U.S. 299 (1851). More recent treatments of the concept include West Lynn Creamery, Inc. v. Healy, 512 U.S. 186 (1994), Healy v. The Beer Institute, 491 U.S. 324 (1989), and CTS Corp. v. Dynamics Corp. of America, 481 U.S. 69 (1987), and Pike v. Bruce Church, Inc., 397 U.S. 137 (1970).

The District Court wrote that "The Supreme Court has decided that the Commerce Clause has a negative aspect, commonly called ``the dormant Commerce Clause,´´ that limits the states' power to regulate interstate commerce. ``The dormant Commerce Clause prohibits the states from imposing restrictions that benefit in-state economic interests at out-of-state interests’ expense.´´"

The Court, relying on the Supreme Court's analysis in Pike v. Bruce Church, wrote that "The first question the Court must answer in conducting a dormant Commerce Clause analysis is ``whether the state regulation at issue discriminates against interstate commerce 'either on its face or in practical effect.' If so, heightened scrutiny applies.´´ ... ``On the other hand, if the state regulation does not discriminate against interstate commerce, but ‘regulates even-handedly’ and merely 'incidentally' burdens it, the regulation will be upheld unless the burden is 'clearly excessive in relation to the putative local benefits.'´´" (Citations omitted.)

The Court continued that "Plaintiffs do not argue that the Act favors in-state commerce over out-of-state commerce on its face or in practical effect. As a result, the balancing test applied in Pike v. Bruce Church quoted above will be applied." The Court then concluded that "The Act cannot survive the dormant Commerce Clause balancing test set forth" in Pike v. Bruce Church. First, the Court examined the "putative local benefits". It reasoned that the state's goal of reducing sexual abuse had not been effectuated. It found, for example, that people who want to access child porm online can get around the blocking mandated by the statute.

Next, the Court examined the burden on interstate commerce. The Court wrote that "the evidence demonstrates that implementation of the Act has impacted a number of entities involved in the commerce of the Internet – ISPs, web publishers, and users of the Internet. To comply with the Act, ISPs have used two types of filtering – IP filtering and DNS filtering – to disable access to alleged child pornography. This filtering resulted in the suppression of 376 web sites containing child pornography, certainly a local benefit. However, the filtering used by the ISPs also resulted in the suppression of in excess of 1,190,000 web sites not targeted by defendant and, as demonstrated at trial, a number of these web sites, probably most of them, do not contain child pornography. ... The overblocking harms web publishers which seek wide distribution for their web sites and Internet users who want access to the broadest range of content possible." The Court concluded that "the burden imposed by the Act is clearly excessive in relation to the local benefits. Thus, the Act must fail."

The Court also wrote that "Although the Court is not prepared to rule that states can never regulate the Internet, the Act’' extraterritorial effect violates the dormant Commerce Clause."

See also, related cases: PSInet v. Chapman, 362 F.3d 227 (4th Cir. 2004); American Libraries Ass'n v. Pataki, 969 F. Supp. 160, 177 (S.D.N.Y. 1997); and ACLU v. Johnson, 194 F.3d 1149, 1161 (10th Cir. 1999).

This case is Center for Democracy and Technology, American Civil Liberties Union, and Plantagenet, Inc. v. Gerald Pappert, U.S. District Court for the Eastern District of Pennsylvania, D.C. No. 03-5051, Judge Jan DuBois presiding.

9/10. Hewitt Pate, Assistant Attorney General in charge of the Department of Justice's Antitrust Division gave a speech titled "Securing the Benefits of Global Competition" in Tokyo, Japan. Much of his speech was devoted to a review of U.S. competition law. He covered three topics: cartel enforcement, merger enforcement, and monopolization and other single firm conduct. On the third topic he focused on the Trinko and Microsoft cases.

He discussed differences between competition law in the U.S. and elsewhere, in the area of single firm conduct. He argued that sound economic analysis supports the U.S. position.

First, he argued against the notion of a stand alone essential facilities doctrine. That is, there should be no stand alone duty to assist competitors by assuring them access tangible or intellectual property. Second, he argued that "antitrust enforcers should generally be skeptical about claims that competition has been harmed by the product design choices of a dominant firm".

With respect to unilateral conduct, Pate stated that "Determining whether a competitor is competing aggressively or acting anticompetitively is a significant challenge that is best met by the application of objective, economically based, transparent standards. Under U.S. antitrust doctrine, these standards have evolved over time, and were most recently discussed by our Supreme Court in the Trinko case."

On January 13, 2004 the Supreme Court issued its opinion [22 pages in PDF] in Verizon v. Trinko, reversing the U.S. Court of Appeals (2ndCir). The Supreme Court held that a claim alleging a breach of an ILEC's duty under the 1996 Telecom Act to share its network with competitors does not state a violation of Section 2 of the Sherman Act. See, story titled "Supreme Court Holds That There is No Sherman Act Claim in Verizon v. Trinko" in TLJ Daily E-Mail Alert No. 815, January 14, 2004.

He continued that "In that case, the DOJ and FTC advocated a standard under which a refusal to assist rivals cannot be exclusionary unless it makes no economic sense for the defendant but for its tendency to reduce or eliminate competition. Although the Court did not explicitly adopt this standard, we believe the Court's analysis was consistent with the approach, and provided important guidance on the fundamental principles of U.S. monopolization law."

Pate added that the "Supreme Court in Trinko also clarified that there is no basis in U.S. antitrust law for a stand-alone essential facilities doctrine. The Court expressed profound skepticism that the antitrust laws were intended to create a duty by one competitor to assist its competitors by assuring them access to its tangible or intellectual property. Some antitrust authorities around the world continue to cling to this increasingly discredited approach, placing themselves on a collision course with sound economic thinking and U.S. approaches in this area."

He then discussed cases involving Microsoft. "On the other hand, where an appropriate standard is met, and anticompetitive conduct by a monopolist is found, we will move aggressively to end the conduct and devise an appropriate remedy. The Antitrust Division took such a course in the Microsoft case, where it was clear to the Division, and ultimately to the courts as well, that Microsoft had acted to illegally maintain its monopoly. It did so by engaging in a series of anticompetitive acts that made no economic sense but for their tendency to eliminate or lessen threats to Microsoft's monopoly."

On this topic, without referencing the European Union and its proceeding involving Microsoft's Media Player, he stated that the U.S. approach to remedies differs from that of other nations.

See, stories titled "European Commission Seeks 497 Million Euros and Code Removal from Microsoft" in TLJ Daily E-Mail Alert No. 863, March 25, 2004, and "European Commission Releases Microsoft Decision" in TLJ Daily E-Mail Alert No. 883, April 23, 2004. See also, stories titled "Pate Criticizes EC Decision Regarding Microsoft" in TLJ Daily E-Mail Alert No. 869, April 5, 2004, and "Pate Addresses US EU Differences on Antitrust, Microsoft, and IPR" in TLJ Daily E-Mail Alert No. 913, June 8, 2004.

He said that "Devising a remedy for unilateral antitrust violations requires at least as much care as the initial rooting out of the violations. The potential for causing more harm than good through counterproductive remedies is great in the single firm context, particularly when combined with the practical problems of enforcing conduct remedies. Remedying single firm conduct is also one of the areas of greatest difference among antitrust enforcement bodies around the world. Here again our Microsoft case is illustrative, particularly in the area of product design-based remedies. We believe, and our courts have held, that antitrust enforcers should generally be skeptical about claims that competition has been harmed by the product design choices of a dominant firm. While anticompetitive single firm conduct is both a challenge to identify and a challenge to remedy, combating it is an important part of sound antitrust enforcement."

9/10. The General Accounting Office (GAO) released a scathing report [62 pages in PDF] titled "Information Technology: Foundational Steps Being Taken to Make Needed FBI Systems Modernization Management Improvements".

The report finds that the Federal Bureau of Investigation (FBI) "does not have an integrated plan or set of plans for modernizing its IT systems. Instead, the bureau's divisions, offices, and other groups that manage IT projects are responsible for integrated planning of their respective projects. Accordingly, the plans do not provide a common, authoritative, and integrated view of how IT investments will help optimize mission performance, and they do not consistently satisfy the elements expected to be found in effective systems modernization plans."

The report also finds that the FBI's "policies and procedures governing systems acquisition and investment selection and control are not consistent with best practices" followed by leading private and public organizations.

The report recommends "limiting the bureau's near-term investment in new and existing IT systems until it develops, among other things, an integrated systems modernization plan and effective policies and procedures for systems acquisition and investment management." It also recommends that the FBI Director "provide the CIO with the responsibility and authority to effectively manage IT across the bureau."

The report notes that the FBI "is in the midst of investing more than a billion dollars over 3 years to modernize its information technology (IT) systems, including its aging infrastructure (e.g., networks) and its mission operations and supporting administrative systems."

The findings of this report are consistent those of previous reports by the GAO and the Department of Justice's Office of the Inspector General.

9/9. The Federal Communications Commission (FCC) announced, but did not release, items at its September 9, 2004 meeting pertaining to making more spectrum available for advanced wireless services (AWS), such as third generation wireless (3G) services. The FCC issued only a brief release [PDF] describing these items. Also, four Commissioners wrote separate statements.

The FCC release states that the FCC "redesignated the 1915-1920 MHz band for AWS from Unlicensed Personal Communications Services (UPCS) and pairs this five-megahertz block of spectrum with the five-megahertz block at 1995-2000 MHz (which was previously allocated for the Mobile Satellite Service (MSS)). An additional ten megahertz of spectrum at 2020-2025 MHz and 2175-2180 MHz – previously allocated for MSS – is to be made available as paired five-megahertz spectrum blocks." (Parentheses in original.)

This item is FCC 04-219 in ET Docket Nos. 00-258 and 95-18. This is a Sixth Report and Order, Third Memorandum Opinion and Order (in ET Docket No. 00-258) and Fifth Memorandum Opinion and Order (in ET Docket No. 95-18).

The FCC release also states that the FCC issued a NPRM that asks for public comment on licensing, technical, and operational rules to govern the use of these four bands. This NPRM is FCC 04-218 in WT Docket Nos. 02-353 and 04-356.

Recently, the FCC and National Telecommunications and Information Administration (NTIA) made available 90 MHz for non-governmental AWS in the 1710-1755 MHz and 2110-2155 MHz bands. This latest action adds another 20 MHz. See, story titled "FCC Adopts 3G Order and NRPM" in TLJ Daily E-Mail Alert No. 546, November 11, 2002.

The FCC release also states that the FCC "adopted a reimbursement plan to compensate UTAM, Inc. for relocation expenses it will incur to relocate incumbents from the 1915-1920 MHz band. The relocation and reimbursement obligations of new AWS entrants with respect to incumbent Broadcast Auxiliary Service (BAS) and Fixed Service (FS) licensees and other new entrants in the 1995-2000 MHz, 2020-2025 MHz, and 2175-2180 MHz bands are addressed as well."

The release also states that the FCC "modified Part 15 of its rules with respect to unlicensed PCS operations in the 1920-1930 MHz band to provide additional flexibility for users of the band to offer both voice and data services using a wider variety of technologies."

Finally, the FCC release states that the FCC "denied petitions for reconsideration related to the reallocation to AWS of ninety megahertz of spectrum from Federal Government and non-Federal Government operations in the 1710-1755 MHz and 2110-2155 MHz bands; and of thirty megahertz of spectrum from the MSS in the 1990-2000 MHz, 2020-2025 MHz, and 2165-2180 MHz bands. The Commission also clarified the rules governing the relocation of FS licensees in the 2110-2150 MHz and 2180-2200 MHz bands."

FCC Chairman Michael Powell wrote in a separate statement [PDF] that the additional 20 MHz "will help expedite the delivery of licensed broadband Internet wireless service".

See also, separate statement [PDF] of Kathleen Abernathy, separate statement [PDF] of Michael Copps, and separate statement [PDF] of Jonathan Adelstein.

9/9. The Federal Communications Commission (FCC) announced, but did not release, a Report and Order and Further Notice of Proposed Rulemaking (FNPRM) regarding the children's programming obligations of digital television broadcasters. The FCC issued a short release [PDF] that describes this item, and all five FCC Commissioners wrote separate statements.

The FCC's release states that "The Order addresses how the current three-hour children's core educational programming processing guideline should apply to a DTV broadcaster that chooses to multicast. The Order increases the amount of the core programming guideline proportionally to the increase in free video programming offered by the broadcaster on multicast channels. The revised guideline provides flexibility to broadcasters that multicast by permitting them the choice whether to air core programming on a single or multiple channels provided that at least three hours per week are shown on their main channel. The Order finds that only programming aired on non-subscription channels qualifies as core programming. The new guidelines will become effective after a one-year phase-in period."

The release also states that "The second major area addressed in the Order is how the existing children’s commercial limitations of the Children’s Television Act of 1990 (“CTA”) should be applied in the digital environment. The Order concludes that the commercial limits apply to all digital programming directed to children ages 12 and under, whether that programming is aired on a free or pay stream."

The FNPRM portion of this item addresses interactivity. The FCC release states that "With respect to the appearance of direct, interactive, links to commercial Internet sites in children’s programming, the Order does not prohibit such links at this stage in the digital transition as this technology is not yet in use in children’s programming. The Order states, however, that the Commission is concerned about the possible use of such direct website links for commercial purposes and warns that broadcasters may not use interactivity or other technological developments in children’s programming to circumvent the commercial limits and policies. The item also includes a Further Notice of Proposed Rule Making seeking comment on the use of interactivity in children's programming and on how commercial interactivity should be treated for purposes of the commercial limits and policies."

FCC Chairman Michael Powell wrote in a separate statement [PDF] that "We substantially increase the children’s educational and informational programming obligations for digital multicast broadcasters. We also put in place significant restrictions on worrisome trends of increasing commercialization of children’s programming on both analog and digital broadcast and cable systems."

FCC Commissioner Michael Copps (at right) praised this item in a separate statement [PDF] and added that "I hope we will get a broad and far-reaching NPRM issued in the next few weeks so that we can address the full range of public interest issues, including, among others, how the digital transition can enhance political discourse, improve access to the media for those with disabilities, and increase localism, diversity, and competition on the people’s airwaves."

See also, separate statement [PDF] of Kathleen Abernathy, separate statement [PDF] of Kevin Martin, and separate statement [PDF] of Jonathan Adelstein.

This Report and Order is FCC 04-221 in MM Docket 00-167.

9/9. The Federal Communications Commission (FCC) announced, but did not release, a Report and Order regarding the FCC license review process and the National Historic Preservation Act (NHPA), which is codified at 16 U.S.C. § 470, et seq. The FCC issued a short release [PDF] describing this item, and four of the FCC Commissioners wrote separate statements.

Kathleen Abernathy dissented in part. She wrote in a separate statement [PDF] that "I do not believe that the Commission has the legal authority under the terms of the National Historic Preservation Act to adopt this Agreement, except with regard to site-based licensed facilities, such as broadcast facilities." Kevin Martin also dissented in part.

Section 106 of the NHPA, 16 U.S.C. § 470f, provides that "The head of any Federal agency having direct or indirect jurisdiction over a proposed Federal or federally assisted undertaking in any State and the head of any Federal department or independent agency having authority to license any undertaking shall, prior to the approval of the expenditure of any Federal funds on the undertaking or prior to the issuance of any license, as the case may be, take into account the effect of the undertaking on any district, site, building, structure, or object that is included in or eligible for inclusion in the National Register. The head of any such Federal agency shall afford the Advisory Council on Historic Preservation established under part B of this subchapter a reasonable opportunity to comment with regard to such undertaking".

She elaborated that "I cannot agree that the construction of all communications antenna facilities invariably constitutes a federal undertaking for the purposes of NHPA. As a result, I believe the Commission is exceeding its statutory authority in regulating antenna facilities where the FCC does not issue a construction permit. To the extent there is no license grant for the construction of an antenna facility it does not appear to me that there is any federal undertaking."

See also, joint statement [PDF] of Michael Powell and Jonathan Adelstein and statement [PDF] of Michael Copps, in support of this item.

This Report and Order is FCC 04-222 in WT Docket No. 03-128.

9/8. John Bruton (at right) was named head of the European Commission's Washington DC office. He is a former Prime Minister of Ireland. See, EU release.

9/10. President Bush nominated Jonathan Dudas to be Under Secretary of Commerce for Intellectual Property and Director of the U.S. Patent and Trademark Office (USPTO). He already holds this position. However, he currently holds a recess appointment. See, White House release.

9/10. President Bush nominated Deborah Majoras (at left) and Jon Leibowitz to be Commissioners of the Federal Trade Commission (FTC). They both currently hold recess appointments. See, White House release. See also, story titled "Bush Gives Majoras and Liebowitz Recess Appointments to the FTC" in TLJ Daily E-Mail Alert No. 950, August 2, 2004.

9/10. President Bush nominated Sean Cox to be a Judge of the U.S. District Court for the Eastern District of Michigan. See, White House release.

9/7. The Senate confirmed Michael Schneider to be a Judge of the U.S. District Court for the Eastern District of Texas by a vote of 92-1. See, Roll Call No. 165.

9/7. The Senate confirmed Virginia Covington to be a Judge of the U.S. District Court for the Middle District of Florida by a vote of 91-0. See, Roll Call No. 164.

The House will meet at 12:30 PM for morning hour and at 2:00 PM for legislative business. The House will consider several non-technology related items under suspension of the rules. Votes will be postponed until 6:30 PM. See, Republican Whip Notice.

The Senate will meet at 2:00 PM for morning hour. It will then resume consideration of HR 4567, the Department of Homeland Security Appropriations Act for FY Year 2005.

9:00 AM - 5:30 PM. Day one of a two day workshop cosponsored by the Federal Trade Commission (FTC) and the Georgetown Journal of Legal Ethics titled "Protecting Consumer Interests in Class Actions". FTC Chairman Deborah Majoras and Commissioner Pamela Harbour will deliver opening remarks. See, FTC notice. Press contact: Claudia Farrell at 202 326-2181. Staff contact: John Delacourt (Office of Policy Planning) at 202 326-3754. The FTC adds that "Reporters who would like to cover this event but who cannot attend can call 1-800-682-5640, chairperson Bruce Jennings, confirmation number 26283192." Location: FTC Conference Center, 601 New Jersey Ave., NW.

9:30 AM. The House Commerce Committee's Subcommittee on Telecommunications and the Internet will hold a hearing titled "The Effect of Television Violence on Children: What Policymakers Need to Know". See, notice of hearing. This hearing will be held in Chicago, Illinois, but will also be webcast by the Committee.

TIME CHANGE. 9:30 AM. The Senate Judiciary Committee's Subcommittee on Terrorism, Technology and Homeland Security will hold a hearing titled "A Review of the Tools to Fight Terrorism Act". Sen. Jon Kyl (R-AZ) will preside. Press contact: Margarita Tapia at 202 224-5225. Location: Room 226, Dirksen Building.

12:00 NOON - 2:00 PM. The DC Bar Association's Intellectual Property Law Section will host a presentation titled "Getting Ready For 2010: What The Last Ten Years Of Computer Discovery Has Taught Us". The speaker will be Deborah Juhnke (Computer Forensics Inc.). See, notice. Prices vary from $15 to $25. For more information, call 202 626-3463. Location: D.C. Bar Conference Center, B-1 Level, 1250 H Street, NW.

2:00 PM. The U.S. Court of Appeals (DCCir) will hear oral argument in Delta Radio Inc v. FCC, No. 03-1295 Location: Prettyman Courthouse, 333 Constitution Ave., NW.

Deadline to submit comments to the Library of Congress in response to its notice of proposed rulemaking (NPRM) regarding continuation, with a few modifications, of the procedures adopted by the Copyright Office in 1995 that permit copyright applicants to request reconsideration of decisions to refuse registration. See, notice in the Federal Register, July 13, 2004, Vol. 69, No. 133, at Pages 42004-42007.

Deadline to submit comments to the Federal Trade Commission (FCC) in response to its notice of proposed rulemaking (NPRM) to implement the Controlling the Assault of Non-Solicited Pormography and Marketing Act of 2003 (CAN-SPAM Act). See, notice in the Federal Register, August 13, 2004, Vol. 69, No. 156, at Pages 50091 - 50107. There is no reply comment period.

The House will meet at 9:00 AM for morning hour and at 10:00 AM for legislative business. See, Republican Whip Notice.

9:00 AM - 12:15 PM. Day two of a two day workshop cosponsored by the Federal Trade Commission (FTC) and the Georgetown Journal of Legal Ethics titled "Protecting Consumer Interests in Class Actions". FTC Commissioner Thomas Leary will deliver closing remarks. See, FTC notice. Press contact: Claudia Farrell at 202 326-2181. Staff contact: John Delacourt (Office of Policy Planning) at 202 326-3754. The FTC adds that "Reporters who would like to cover this event but who cannot attend can call 1-800-682-5640, chairperson Bruce Jennings, confirmation number 26283192." Location: FTC Conference Center, 601 New Jersey Ave., NW.

TIME CHANGE. 10:00 AM. The Senate Judiciary Committee will hold an executive business meeting. Press contact: Margarita Tapia at 202 224-5225. See, notice. Location: Room 226, Dirksen Building.

9:30 AM - 5:00 PM. The Federal Communications Commission's (FCC) North American Numbering Council will meet. See, notice and agenda [PDF]. Location: FCC, 445 12th Street, SW, Room TW-C305 (Commission Meeting Room).

10:00 AM. The Senate Intelligence Committee will hold a hearings to examine the nomination of Porter Goss to be Director of Central Intelligence. Location: Room 562, Dirksen Building.

6:00 - 8:15 PM. The Federal Communications Bar Association's (FCBA) Mass Media Practice Committee will host a continuing legal education (CLE) seminar titled "Ownership Rules of the Federal Communications Commission". The speakers will include Erin Dozier (Special Advisor for Media Ownership in the FCC's Media Bureau), Jerianne Timmerman (National Association of Broadcasters), Anita Wallgren (Sidley Austin), Brian Madden (Leventhal Senter & Lerman), and Greg Schmidt (LIN Television). Prices to attend vary. See, notice. Location: Dow Lohnes & Albertson, 8th Floor, 1200 New Hampshire Ave., NW.

6:00 - 9:15 PM. The DC Bar Association will host a continuing legal education (CLE) program titled "Basics of Filing and Litigating Freedom of Information and Privacy Act Requests". The speakers will be Elizabeth Shapiro (Department of Justice) and Mark Zaid (Krieger & Zaid). See, notice. Prices vary from $70 to $115. For more information, call 202 626-3488. Location: D.C. Bar Conference Center, B-1 Level, 1250 H Street, NW.

The House will meet at 10:00 AM for legislative business. See, Republican Whip Notice.

10:00 AM. The U.S. District Court (DC) will hold an initial conference in Electronic Privacy Information Center (EPIC) v. Department of Defense, D.C. No. 1:2004-cv-01219-CKK, a Freedom of Information Act (FOIA) case. Judge Colleen Kotelly will preside. See, story titled "EPIC Files FOIA Complaint Against DOD Seeking Records Regarding Data Mining Project" in TLJ Daily E-Mail Alert No. 945, July 26, 2004. Location: Courtroom 11, Prettyman Courthouse, 333 Constitution Ave., NW.

12:15 PM. The Federal Communications Bar Association's (FCBA) Cable Practice Committee will host a brown bag lunch. The topics will be the FCC's Fall agenda and potential subjects for future meetings. The speakers will be Catherine Bohigian (Legal Advisor on Media Issues for FCC Commissioner Kevin Martin), Frank Lloyd (Mintz Levin), an To-Quyen Truong (Dow Lohnes & Albertson). RSVP to To-Quyen Truong at ttruong@dowlohnes.com. Location: Dow Lohnes & Albertson, 1200 New Hampshire Ave., NW, 8th floor.

The Federal Communications Commission (FCC) will conduct Auction No. 57, an auction of licenses in the Automated Maritime Telecommunications System (AMTS') spectrum. See, notice in the Federal Register, June 25, 2004, Vol. 69, No. 122, at Pages 35614 - 35626.

Deadline to submit written comments to the Office of the U.S. Trade Representative (USTR) regarding the USTR's annual report to the Congress on the Peoples Republic of China's compliance with the commitments that it made in connection with its accession to the World Trade Organization (WTO). See, notice in the Federal Register, July 29, 2004, Vol. 69, No. 145, at Pages 45369 - 45370.

EXTENDED TO OCTOBER 15. Deadline to submit comments to the Federal Communications Commission (FCC) in response to its Notice of Inquiry (NOI) [15 pages in PDF] regarding "issues relating to the presentation of violent programming on television and its impact on children." This NOI is FCC 04-175 in MB Docket No. 04-261. See, story titled "FCC Issues NOI on Violent TV Programming" in TLJ Daily E-Mail Alert No. 950, August 2, 2004. See also, notice in the Federal Register, August 12, 2004, Vol. 69, No. 155, at Pages 49899 - 49904. See, Order [PDF] extending the deadlines.

Rosh Hashanah.

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in Polygram Hold Inc v. FTC, No. 03-1293. The Federal Trade Commission (FTC) filed its administrative complaint against Polygram and others on July 30, 2001 alleging unfair methods of competition in violation of Section 5 of the FTC Act by agreeing with competitor Warner Communications to restrict price competition and forgo advertising, in connection with the sale of audio and video recordings titled "Three Tenors". The FTC issued its order [8 pages in PDF] and the opinion [61 pages in PDF] of Chairman Timothy Muris on July 24, 2003, finding that the agreement between PolyGram and Warner unreasonably restrained trade and constitutes an unfair method of competition. Judges Ginsburg, Edwards and Rogers will preside. Location: Prettyman Courthouse, 333 Constitution Ave., NW.

RESCHEDULED FROM SEPTEMBER 10. 10:30 AM. Dane Snowden, Chief of the Federal Communications Commission's (FCC) Consumer & Governmental Affairs Bureau, will hold a press briefing. RSVP to Rosemary Kimball at 202 418-0511 or rosemary.kimball@fcc.gov. Location: FCC, 445 12th St., SW, Hearing Room B/Conference Room, TW A-402/A-442.

Deadline for the President to submit a report to the Congress on the establishment and operation of the Terrorist Screening Center, established on September 16, 2003, by Homeland Security Presidential Directive/Hspd-6. This report is required by Section 360 of HR 2417, the "Intelligence Authorization Act for Fiscal Year 2004". See, story titled "Bush Signs Intelligence Authorization Bill" in TLJ Daily E-Mail Alert No. 799, December 15, 2003.

Deadline to submit comments to the Federal Communications Commission (FCC) in response to its notice of proposed rulemaking (NPRM) regarding Amateur Radio Service rules. The FCC adopted this NPRM on March 31, 2004, and released it on April 15, 2004. This NPRM is FCC 04-79 in WT Docket No. 04-140. See, notice in the Federal Register, August 17, 2004, Vol. 69, No. 158, at Pages 51028 - 51034.

Deadline to submit comments to the Federal Communications Commission (FCC) in response to the Wireline Competition Bureau's (WCB) public notice inviting interested parties to update the record pertaining to petitions for reconsideration of the 1997 Price Cap Review Order. This is in CC Docket Nos. 94-1 and 96-262. See, notice [PDF].

11:00 AM. Jessica Litman (Wayne State University Law School) will present a paper titled "Sharing and Stealing" [47 pages in PDF] at an event hosted by the Dean Dinwoodey Center for Intellectual Property Studies at the George Washington University Law School (GWULS). For more information, contact Robert Brauneis at 202 994-6138 or rbraun@law.gwu.edu. The event is free and open to the public. See, notice. Location: GWULS, Faculty Conference Center, Burns Building, 5th Floor, 716 20th Street, NW.

Extended deadline to submit nominations to the U.S. Patent and Trademark Office (USPTO) for positions on the Patent Public Advisory Committee (PPAC) and the Trademark Public Advisory Committee (TPAC) with terms that begin November 27, 2004. See, original notice in the Federal Register, August 2, 2004, Vol. 69, No. 147, at Pages 46136 - 46137, and notice of extension in the Federal Register, September 3, 2004, Vol. 69, No. 171, at Page 53895.

9/10. The Federal Trade Commission (FTC) filed a complaint [PDF] in U.S. District Court (DNJ) against AT&T Corporation alleged violation of the Fair Credit Reporting Act (FCRA). The FTC and AT&T simultaneously filed a Consent Decree [PDF] in which AT&T agreed to pay a civil penalty of $365,000 for violation of the FCRA. The Consent Decree also enjoins AT&T from further violation of the FCRA.

The FTC also filed a complaint [PDF] in U.S. District Court (NDFl) against Sprint alleging violation of the FCRA. The FTC and Sprint simultaneously entered in to a Consent Decree [PDF] in which Sprint agreed to pay a civil penalty of $1,125,000. It also enjoins Sprint from further violation.

The FTC alleged that Sprint used consumers' credit reports to deny service, and that Sprint and AT&T placed conditions or restrictions on service without making the disclosures required by the FCRA, such as the right to obtain a free copy of the credit report and to dispute errors contained in the credit report.

The FCRA is codified at 15 U.S.C. § 1681, et seq. See also, FTC release.

9/9. The Federal Communications Commission (FCC) now maintains a web site titled "Kids Zone". See, FCC release [PDF].

9/9. The Federal Communications Commission (FCC) published a notice in the Federal Register that describes and sets the effective date of its rule changes pertaining to the Section 251 unbundling obligations associated with fiber networks serving multiple dwelling units (MDU). The FCC adopted the order containing these rule changes at its August 4, 2004 meeting; the FCC released the text of its order on August 9, 2004. This order is FCC 04-191 in CC Docket Nos. 01-338, CC 96-98, and CC 98-147. See, Federal Register, September 9, 2004, Vol. 69, No. 174, at Pages 54589 - 54591. See also, story titled "FCC Adopts Order on Reconsideration Re Unbundling Requirements of ILECs for FTTH to MDUs" in TLJ Daily E-Mail Alert No. 954, August 6, 2004.

9/7. The Federal Communications Commission (FCC) published a notice in the Federal Register that describes, and the sets the effective date of, the rules changes for unlicensed radiofrequency devices contained in the order adopted at its July 8, 2004 meeting, and released on July 12, 2004. This order is FCC 04-165 in ET Docket 03-201. The effective date is October 7, 2004. See, Federal Register, September 7, 2004, Vol. 69, No. 172, at Pages 54027 - 54037. See also, story titled "FCC Adopts Report and Order Regarding Unlicensed Devices" in TLJ Daily E-Mail Alert No. 934, July 9, 2004.

9/3. The Federal Communications Commission (FCC) published a notice in the Federal Register seeking comments relating to the high cost universal support mechanisms for rural carriers and the appropriate rural mechanism to succeed the five year plan adopted in the Rural Task Force Order. Comments are due by October 15, 2004. Reply comments are due by December 14, 2004. See, Federal Register, September 3, 2004, Vol. 69, No. 171, at Pages 53917 - 53923.

9/1. The Federal Communications Commission (FCC) published a notice in the Federal Register that describes and sets comment deadlines for its notice of proposed rulemaking (NPRM) regarding "Internet Protocol (IP) Relay and Video Relay Service (VRS), including the appropriate cost recovery methodology for VRS, possible mechanisms to determine which IP Relay and VRS calls are intrastate and which are interstate for purposes of reimbursement, whether IP Rely and VRS should become mandatory TRS services, whether IP Relay and VRS should be required to be offered 7 days a week, 24 hours a day, and whether, when, and how we should apply the speed of answer rule to the provision of VRS." The FCC adopted this NPRM on June 10, 2004, and released it on June 30, 2004. It is FCC 04-134 in CG Docket No. 03-123. Comments are due by October 18, 2004. Reply comments are due by November 15, 2004. See, Federal Register, September 1, 2004, Vol. 69, No. 169, at Pages 53382 - 53385.

9/9. The Federal Trade Commission (FTC) published a notice in the Federal Register that describes and sets the deadline for public comments on its consent agreement with its Bonzi Software, Inc., it owners and officers, Joe Bonzi and Jay Bonzi. On September 1, 2004, the FTC filed an administrative complaint [6 pages in PDF], and simultaneously entered into an Agreement Containing Consent Decree [7 pages in PDF]. The FTC alleges violation of Section 5(a) of the FTC Act, which is codified at 15 U.S.C. § 45, in connection with the deceptive marketing and sale of software named "InternetALERT". Comments are due by October 1, 2004. See, Federal Register, September 9, 2004, Vol. 69, No. 174, at Pages 54667 - 54668. See also, story titled "FTC Stops Deceptive Claims by Security Software Maker" in TLJ Daily E-Mail Alert No. 970, September 6, 2004.

9/9. Neal Cotton plead guilty in U.S. District Court (SDNY) to computer intrusion. He was previously employed as a network administrator at Cyber City, Inc., a network consulting firm. The company fired him. The next day, using passwords and user codes that he had obtained during his employment, he remotely accessed the company's servers, and destroyed files and data. See, DOJ release.

9/9. The Department of Justice (DOJ) filed a complaint in U.S. District Court against Jonathan D. Luman seeking injunctive relief. The DOJ stated in a release that he is involved in a "tax scam via the Internet". The DOJ alleges that he "operates websites that sell bogus documents", namely, forms to submit to the Internal Revenue Service (IRS). The DOJ seeks to compel Luman to provide the DOJ "any records that identify his customers, including their names, street and e-mail addresses, and Social Security numbers".

9/8. The Department of Homeland Security's (DHS) Transportation Security Administration (TSA) published a notice in the Federal Register that describes, and sets the deadline for comments on, its notice of proposed rulemaking (NPRM) in which its proposes to exempt the Registered Traveler Operations Files from several provisions of the Privacy Act. The deadline for comments is October 8, 2004. See, Federal Register, September 8, 2004, Vol. 69, No. 173, at Pages 54256 - 54258.

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