1/3. The Federal Communications Commission (FCC) published a notice in the Federal Register that describes and sets comment deadlines for its Further Notice of Proposed Rulemaking (FNPRM) regarding the children's programming obligations of digital television broadcasters. Comments are due by March 1, 2005. Reply comments are due by April 1, 2005.

The FCC adopted its Report and Order and FNPRM at its September 9, 2004 meeting. It released the text on November 23, 2004. This item is FCC 04-221 in MM Docket 00-167. See, Federal Register, January 3, 2005, Vol. 70, No. 1, at Pages 63-68. See also, story titled "FCC Adopts Report and Order Re Children's Programming Obligations of DTV Broadcasters" in TLJ Daily E-Mail Alert No. 975, September 13, 2004.

The FCC published a separate notice in the Federal Register that describes, recites, and sets the effective dates for the final rules adopted in the Report and Order portion of this item. Some provisions take effect on February 1, 2005. Others take effect on January 1, 2006. The effective dates for some provisions have not yet been set. See, Federal Register, January 3, 2005, Vol. 70, No. 1, at Pages 25-38.

12/28. The U.S. Court of Appeals (DCCir) issued its opinion [6 pages in PDF] in NJTV v. FCC, an appeal of final order dismissing NJTV's application to build a low-power television broadcast station.

NJTV asked the FCC to keep the application on file and give it preferential consideration if the channel becomes available again. The Court of Appeals dismissed this part of the appeal, for lack of standing. NJTV also asked for displacement relief on appeal, but it failed to raise this before the FCC.

The Court also wrote that "The FCC has in fact read § 309(j) as placing low-power stations within the auction process. ... We of course do not prejudge the validity of this conclusion, ..."

This case is New Jersey Television Corporation v. Federal Communications Commission, U.S. Court of Appeals for the District of Columbia Circuit, App. Ct. No. 03-1444. Judge Williams wrote the opinion of the Court, in which Judges Henderson and Rogers joined.

12/27. The U.S. Court of Appeals (11thCir) issued its opinion [21 pages in PDF] in Kemp v. AT&T., a case regarding AT&T's fraudulent billing of gambling charges as long distance charges.

Following a jury trial, the District Court entered judgment against AT&T for fraudulent billing practices and the collection of illegal gambling debts in violation of the federal and Georgia RICO statutes, and awarded actual damages of $115.05, and punitive damages of $1,000,000. The Appeals Court affirmed the District Court in all things, except the size of the punitive damages award, which it ordered reduced to $250,000.

This case dates back to 1992. It is case involving wireline gambling, and not internet gambling. The gambling service was terminated in 1992. Also, AT&T's conduct included mislabelling gambling charges as long distance changes.

Felix Kemp was a long distance phone customer of AT&T, and a local phone customer of BellSouth. His grandson used his phone to gamble.

Teleline, Inc. created a game titled "Let's Make a Deal Telephone Game" that enabled callers to gamble via a 900 phone call. It resembled a television program titled "Let's Make a Deal" (LMAD). Callers heard prerecorded messages, and selected options using their touchtone phone buttons. Callers were billed $3.88 per minute, and in return played the game that gave them a remote change of winning money. AT&T carried the calls, played the messages, and billed callers for long distance phone calls.

This case has been in the federal courts since 1992. Although, the present Appeals Court opinion does not reflect most of this long history. The case before the Court of Appeals involves one plaintiff, Kemp. He was not originally the sole plaintiff. There is now only one defendant, AT&T. The plaintiffs had originally also named Teleline and USA Networks as defendants. The only issues before the Court of Appeals are the denial of AT&T's motions for judgment as a matter of law and for a reduction of the punitive damages award.

This case has also been styled Sykes v. AT&T in the past. For more of the facts and procedural history of this case, see the February 13, 2002 opinion of the Court of Appeals that reversed the District Court's class certification order.

The plaintiffs filed a complaint in U.S. District Court (SDGa) against AT&T. They also sought class action status. The complaint alleged numerous causes of action. However, for the purposes of the present Appeals Court opinion, two are pertinent: (1) civil violation of the federal Racketeer Influenced and Corrupt Organizations Act, which is codified at 18 U.S.C. §§ 1961-1968, and (2) civil violation of the Georgia Racketeer Influenced and Corrupt Organizations Act, which is codified at O.C.G.A. § 16-14-1 et seq. The plaintiffs requested, among other relief, actual damages and punitive damages.

The trial jury returned a verdict that AT&T had engaged in fraudulent billing practices and the collection of illegal gambling debts in violation of the federal and Georgia RICO statutes.

18 U.S.C. § 1962(c) provides that "It shall be unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs through a pattern of racketeering activity or collection of unlawful debt."

In the present case the predicate activities were the mail or wire fraud statutes and Georgia's state law regarding unlawful debts and illegal gambling.

18 U.S.C. § 1962(d) also provides that "It shall be unlawful for any person to conspire to violate any of the provisions of subsection (a), (b), or (c) of this section."

18 U.S.C. § 1964(c) then provides a private right of action. It states that "Any person injured in his business or property by reason of a violation of section 1962 of this chapter may sue therefor in any appropriate United States district court and shall recover threefold the damages he sustains and the cost of the suit, including a reasonable attorney's fee, except that no person may rely upon any conduct that would have been actionable as fraud in the purchase or sale of securities to establish a violation of section 1962. The exception contained in the preceding sentence does not apply to an action against any person that is criminally convicted in connection with the fraud, in which case the statute of limitations shall start to run on the date on which the conviction becomes final."

AT&T then brought a motion for judgment as a matter of law (JMOL) seeking to set aside a jury verdict, and a motion to reduce the award of punitive damages. The District Court denied both. AT&T appealed.

The Court of Appeals affirmed the District Court's denial of the JMOL. However, it reversed the denial of the motion to reduce the punitive damages award, ordered the District Court to reduce the punitive damages award from $1,000,000 to $250,000, and remanded the case back to the District Court.

The Appeals Court held that "In order to bring a RICO claim where mail or wire fraud serves as the predicate activity, it is necessary to show that (1) the defendant intentionally participated in a scheme to defraud another of money or property, (2) the defendant used the mails or wires in furtherance of that scheme, and (3) the plaintiff relied to his detriment on the defendant’s misrepresentations."

The Court added that "The nondisclosure of material information, even in the absence of any patently false statements, can also constitute a violation of the mail and wire fraud statutes where a defendant has a duty to disclose." It also wrote that "the LMAD charges were not long distance charges but were gambling debts owed only to Teleline", and that AT&T "had the duty to correct the mistaken impression it had fostered that the LMAD debts were for long distance charges."

The Court concluded that Kemp submitted sufficient evidence to the jury on each of the elements of a RICO claim based upon mail or wire fraud to support the jury's verdict.

The Court of Appeals also upheld the jury's RICO verdict based upon the predicate activity of violation of the state of Georgia's illegal lottery statute.

Finally, the Court of Appeals held that the award of punitive damages was appropriate, but that $1,000,000 was excessive. It ordered a reduction to $250,000, which is close to the $287,360.59 in revenues that AT&T collected.

This case is Felix Kemp v. AT&T, U.S. Court of Appeals for the 11th Circuit, App. Ct. No. 03-15189, an appeal from the U.S. District Court for the Southern District of Georgia, D.C. No. 92-00147-CV-6. Judge Rosemary Barkett wrote the unanimous opinion of the three judge panel, in which Judges Cox and Birch joined.

1/3. The Federal Communications Commission (FCC) released a Memorandum Opinion and Order in which it denied A-O Broadcasting Corporation's petition for reconsideration of the FCC's Forefeiture Order of December 29, 2003. The FCC fined A-O, the former licensee of FM radio station KTMN in Cloudcroft, New Mexico, $25,000 for failure to comply with radio frequency radiation maximum permissible exposure limits, failing to have Emergency Alert System equipment installed, and other violations. See also, FCC release.

1/3. The Office of the U.S. Trade Representative (USTR) published a notice in the Federal Register that states the February 11, 2005 at 5:00 PM is the deadline for submitting comments regarding countries that deny adequate and effective protection of intellectual property rights or deny fair and equitable market access to U.S. persons who rely on intellectual property protection. This is for the USTR's Special 301 review, pursuant to 19 U.S.C. § 2242. See,  Federal Register, January 3, 2005, Vol. 70, No. 1, at Page 134.

1/3. The Office of the U.S. Trade Representative (USTR) published a notice in the Federal Register that states that January 10, 2005 is the suggested deadline for submitting comments to the USTR regarding the European Community's complaint to the World Trade Organization (WTO) regarding the Jobs Act, which replaced the Foreign Sales Corporation (FSC) and Extraterritorial Income (ETI) tax regimes. See, Federal Register, January 3, 2005, Vol. 70, No. 1, at Pages 135-136. HR 4520 (108th Congress), the American Jobs Creation Act of 2004, was a huge tax bill that included FSC/ETI repeal. President Bush signed it on October 22, 2004. It is now Public Law No. 108-357.

1/1. The Office of the U.S. Trade Representative (USTR) issued a release [PDF] on the occasion of the U.S. Australia Free Trade Agreement going into effect.

The House will meet at 12:00 NOON. See, Republican Whip Notice.

The Senate will convene at 12:00 NOON. It will not meet again until January 20. See, Senate calendar.

The Supreme Court will next meet on Monday, January 10, 2005. See, Order List [9 pages in PDF] at page 9.

The House will not meet. See, Republican Whip Notice.

10:00 AM. Thomas Donohue (P/CEO of the U.S. Chamber of Commerce) and Bruce Josten (VP for Government Affairs) will host a press breakfast. They will announce the U.S. Chamber's 2005 policy priorities, economic forecast and legislative outlook, and answer questions. RSVP to 202 463-5682 or press@uschamber.com. Location: U.S. Chamber of Commerce, 1615 H Street, NW.

2:00 - 4:00 PM. The Department of State's International Telecommunication Advisory Committee (ITAC) will meet to prepare for the International Telecommunications Union's ITU-T Study Group 3 (tariff and accounting principles) meeting. See, the ITU's calendar of meetings. See, notice in the Federal Register, December 20, 2004, Vol. 69, No. 243, at Page 76027. For more information, including the location, contact Julian Minard at minardje@state.gov. Location: undisclosed.

The House will meet at 11:00 AM. No votes are expected. See, Republican Whip Notice.

10:00 AM. The Senate Judiciary Committee will hold a hearing on the nomination of Alberto Gonzales to be Attorney General. Sen. Arlen Specter (R-PA) will preside. See, notice. Location: Room 216, Hart Building.

10:00 AM. The Senate Health, Education, Labor and Pensions Committee will hold a hearing on the nomination of Margaret Spelling to be Secretary of Education. Location: Room 430, Dirksen Building.

2:30 PM. Secretary of Homeland Security Tom Ridge will participate in a press conference announcing the National Response Plan. The DHS's notice also states that "Press wishing to attend this event must present valid press credentials and arrive no later than 2:15 PM". Location: National Governors' Association, Hall of the States, 444 N. Capitol St., NW.

Deadline to submit comments to the Export-Import Bank of the United States regarding its notice in the Federal Register that states that it "has received an application to finance the export of approximately $1.2 billion in U.S. semiconductor manufacturing equipment to dedicated foundries in China." The notice adds that "The U.S. exports will enable the dedicated 200-mm and 300-mm foundries to produce approximately 80,000 wafers per month (200-mm equivalent) of logic products. Available information indicates that some of this new production will be exported from China and consumed globally." See, Federal Register, December 23, 2004, Vol. 69, No. 246, at Page 76945.

The House will not meet. See, Republican Whip Notice.

Deadline to submit nominations to the Federal Communications Bar Association (FCBA) for its Executive Committee and Foundation. Send nominations to Alexandra Wilson at alexandra.wilson@cox.com.

EXTENDED TO JANUARY 24. Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its notice of proposed rulemaking (NPRM) regarding service rules for advanced wireless services (AWS) in the 1915-1920 MHz, 1995-2000 MHz, 2175-2180 MHz and 1.7 GHz and 2.1 GHz bands. The FCC adopted this NPRM at its September 9, 2004 meeting, and released the text on September 24, 2004. It is FCC 04-218 in WT Docket No. 04-356 and WT Docket No. 02-353. See, notice in the Federal Register, November 2, 2004, Vol. 69, No. 211, at Pages 63489-63498. See also, story titled "FCC Makes Additional 20 MHz of Spectrum Available for Advanced Wireless Services" in TLJ Daily E-Mail Alert No. 975, September 13, 2004. See, extension notice in the Federal Register, November 30, 2004, Vol. 69, No. 229, at Pages 69572 - 69573.

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in Charles Crawford v. FCC, No. 04-1031. Judges Randolph, Tatel and Garland will preside. Location: Prettyman Courthouse, 333 Constitution Ave., NW.

12:15 - 4:30 PM. The American Enterprise Institute (AEI) will host an event titled "China and the Global Economic Recovery". The speakers will be Anne Krueger (International Monetary Fund), Randal Quarles (Treasury Department), Pieter Bottelier (SAIS, Johns Hopkins University), Jeffrey Frankel (Harvard University), Morris Goldstein (Institute for International Economics), John Makin (AEI), Li Shantong (China Development Research Center), and Desmond Lachman (AEI). See, notice. Location: AEI, 12th Floor, 1150 Seventeenth Street, NW.

5:30 - 7:00 PM. Tamar Jacoby (Manhattan Institute) will give a lecture titled "Immigration Reform: Politics and Prospects". See, notice. Location: American Enterprise Institute (AEI), 12th Floor, 1150 17th St., NW.

Deadline to submit to the Federal Communications Commission (FCC) petitions to deny the applications of NextWave Telecom and Cellco Partnership dba Verizon Wireless for FCC approval of their proposed transfer of control of broadband Personal Communications Services (PCS) licenses from NextWave to Cellco. See, FCC notice [4 pages in PDF]. This notice is DA 04-3873 in WT Docket No. 04-434.

Effective date of the Federal Communications Commission's (FCC) final rule regarding the former ITFS, MDS, and MMDS. The FCC adopted its Report and Order at its June 10, 2004 meeting. The FCC released the text on July 29, 2004 (FCC 04-135), and then released a modified item on October 29, 2004 (FCC 04-258). This is WT Docket 03-66. See, notice in the Federal Register, December 10, 2004, Vol. 69, No. 237, at Pages 72019 - 72047. See also, story titled "FCC Adopts RO & NPRM Re ITFS/MDS Band" in TLJ Daily E-Mail Alert No. 916, June 11, 2004.

Deadline to submit comments to the Federal Communications Commission's (FCC) in response to the further notice of proposed rulemaking (FNPRM) portion of its Report and Order and FNPRM regarding the former ITFS, MDS, and MMDS, now named the Broadband Radio Service (BRS) and the Educational Broadband Service (EBS), in the 2496-2690 MHz band. The FCC adopted this item at its June 10, 2004 meeting. The FCC released the text on July 29, 2004 (FCC 04-135), and then released a modified item on October 29, 2004 (FCC 04-258). This is WT Docket 03-66. See, notice in the Federal Register, December 10, 2004, Vol. 69, No. 237, at Pages 72019 - 72047. See also, story titled "FCC Adopts RO & NPRM Re ITFS/MDS Band" in TLJ Daily E-Mail Alert No. 916, June 11, 2004.

End of voluntary negotiation period for determining the royalty fees for analog signals to be paid by satellite carriers under the satellite carrier compulsory license. See, Copyright Office's notice in the Federal Register, December 30, 2004, Vol. 69, No. 250, at Pages 78482 - 78483.

Suggested deadline to submit comments to the Office of the U.S. Trade Representative (USTR) regarding the European Community's complaint to the World Trade Organization (WTO) regarding the Jobs Act, which replaced the Foreign Sales Corporation and Extraterritorial Income (FSC/ETI) tax regimes. See, notice in the Federal Register, January 3, 2005, Vol. 70, No. 1, at Pages 135-136.

10:00 AM. The U.S. Court of Appeals (FedCir), Panel C, will hear oral argument in Rates Technology v. Nortel Networks (No. 04-1212). and Phonometrics v. Hospitality International (No. 04-1318). See, FedCir calendar. Location: Courtroom 402, 717 Madison Place, NW.

10:00 AM. The U.S. Court of Appeals (FedCir), Panel D, will hear oral argument in Israel Bio-Engineering v. Amgen (Nos. 04-1153 and 04-1301) and In Re Fujimura (No. 04-1244). See, FedCir calendar. Location: Courtroom 203, 717 Madison Place, NW.

12:00 NOON - 1:30 PM. The Federal Communications Bar Association (FCBA) International Telecommunications Committee will host a brown bag lunch. The topic will be "An Overview of the World Bank's E-Development Policy Goals for Assisting Developing Countries to Integrate Information and Communication's Technologies (ICT) into the Development Agenda". The speakers will be Rob Stephens (World Bank) and Nagy Hanna (World Bank). No RSVP required. Location: AT&T, Suite 1000, 1120 20th St., NW.

1:00 - 4:00 PM. The Department of Homeland Security's (DHS) National Infrastructure Advisory Council (NIAC) will hold a meeting. It is open to the public. See, notice in the Federal Register, December 27, 2004, Vol. 69, No. 247, at Pages 77259 - 77260. See also, story titled "DHS's National Infrastructure Advisory Council Meeting to Cover Cyber Security" in TLJ Daily E-Mail Alert No. 1045, December 28, 2004. Location: Hamilton Crowne Plaza, 14th & K Streets, NW.

2:00 - 4:00 PM. The WRC-07 Advisory Committee's Informal Working Group 5: Regulatory Issues will meet. The FCC notice [PDF] states also that "Non-U.S. citizens desiring to attend this meeting must pre-clear 24 hours in advance by providing their name, country of citizenship, and company name to Sharon Neuner at: sharon.c.neuner @boeing.com." Location: Boeing Company, 1200 Wilson Blvd., Arlington, VA.

2:00 - 4:00 PM. The Department of State's International Telecommunication Advisory Committee (ITAC) will meet to prepare for the International Telecommunications Union's ITU-T Study Group 3 (tariff and accounting principles) meeting. See, the ITU's calendar of meetings. See, notice in the Federal Register, December 20, 2004, Vol. 69, No. 243, at Page 76027. For more information, including the location, contact Julian Minard at minardje@state.gov. Location: undisclosed.

TIME? There will be a meeting of the Executive Office of the President's (EOP) Office of Science and Technology Policy's (OSTP) National Science and Technology Council's (NSTC) Committee on Technology's Nanoscale Science, Engineering and Technology Subcommittee. The meeting is closed to the public. For more information, contact Geoff Holdridge at 703 292-4532. Location: undisclosed.

Deadline to register for the National Institute of Standards and Technology (NIST) half day meeting on January 19 to discuss policy, privacy, and security issues associated with Homeland Security Presidential Directive-12, titled "Common Identification Standard for Federal Employees and Contractors." To register, contact Sara Caswell at Sara.caswell@nist.gov or 301 975-4634. See, notice [PDF].

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