3/28. The Supreme Court denied certiorari in Norton v. Troy Publishing Company, letting stand the judgment of the Supreme Court of Pennsylvania in a defamation case against a publisher for accurate reporting. See, Order List [12 pages in PDF].

This case arises out of a dispute among elected officials in Chester County, Pennsylvania. One elected member of the Parkersburg Borough Council (William Glenn) said at the council's chambers that certain other officials (Council President James Norton, Borough Mayor Alan Wolfe and Borough Solicitor James Marlowe) were homosexuals.

Tom Kennedy, a reporter for the Chester County Daily Local, wrote a story that accurately reported Glenn's statements. His story also reported Norton's response. The story did not report whether or not the Glenn's statements were true. The Daily Local is published by Troy Publishing Company. The Daily Local is owned by William Caufield.

Norton, Wolfe and Marlowe filed complaints in state court against Glenn, Kennedy, Caufield, and Troy Publishing, alleging, among other things, defamation. The case was tried before a jury. The Court gave the jury a neutral reportage instruction. The plaintiffs obtained judgment against Glenn for defamation, and Glenn did not appeal. The jury found for the other defendants. Norton, Wolfe and Marlowe appealed.

That is, Glenn made false statements (about Norton, Wolfe and Marlowe). Kennedy made truthful statements (about what Glenn and Norton said). Norton, Wolfe and Marlowe argue that Kennedy, Caufield and Troy Publications can be held liable for defamation for publishing these true statements. And in particular, they argue that Kennedy, Caufield and Troy are not entitled to have the trial court instruct the jury that they are entitled to a neutral reportage privilege.

The Superior Court of Pennsylvania (an intermediate appellate court) agreed. It held that there is no neutral reportage privilege, reversed the trial court, and remanded for a new trial.

The Superior Court wrote in its opinion [12 pages in PDF] that "this privilege does not appear in the United States Constitution, the Pennsylvania Constitution, or in any Pennsylvania statutory law. Our research has uncovered no Pennsylvania case adopting the neutral reportage privilege. ... Therefore, the ultimate question is whether or not Pennsylvania adopts the neutral reportage privilege? We answer this question in the negative."

Kennedy, Caufield and Troy Publishing appealed to the highest court in Pennsylvania. The Supreme Court of Pennsylvania affirmed the Superior Court. It wrote in its opinion [17 pages in PDF] that the "fair reportage privilege ... grants immunity from defamation suits to media entities which accurately report the official proceedings of government".

And now, the U.S. Supreme Court, which has jurisdiction over the First Amendment issue, but not the Pennsylvania constitutional issue, has denied certiorari.

It wrote no opinion. One could speculate as to why the Supreme Court would not grant certiorari in such a compelling case. One possible reason is that the privilege at issue benefits only "media entities". The Supreme Court has never recognized that the First Amendment confers upon any institutional press any benefit that it does not confer upon all people.

For example, the Supreme Court wrote in is 1972 opinion in Branzburg v. Hayes, which is reported at 408 U.S. 665, that "Freedom of the press is a `fundamental personal right´ which `is not confined to newspapers and periodicals. It necessarily embraces pamphlets and leaflets. ... The press in its historic connotation comprehends every sort of publication which affords a vehicle of information and opinion.´ ... The informative function asserted by representatives of the organized press ... is also performed by lecturers, political pollsters, novelists, academic researchers, and dramatists. Almost any author may quite accurately assert that he is contributing to the flow of information to the public ..."

See also, the concurring opinion of former Chief Justice Warren Burger in FNB v. Bellotti, which is reported at 435 U.S. 765 (1978). He wrote that "The very task of including some entities within the ``institutional press´´ while excluding others, whether undertaken by legislature, court, or administrative agency, is reminiscent of the abhorred licensing system of Tudor and Stuart England -- a system the First Amendment was intended to ban from this country."

"Because the First Amendment was meant to guarantee freedom to express and communicate ideas, I can see no difference between the right of those who seek to disseminate ideas by way of a newspaper and those who give lectures or speeches and seek to enlarge the audience by publication and wide dissemination", wrote Burger. "In short, the First Amendment does not ``belong´´ to any definable category of persons or entities: It belongs to all who exercise its freedoms."

Rotunda and Nowak sum up the Supreme Court's interpretation. "The Court has refused to draw any constitutional distinction between speech and ``the press,´´ or between speech and the ``institutional press,´´ or between speech and the ``organized media.´´ The reason for the judicial unwillingness to make such a differentiation lies, in part, in the fact that there is no principled way of doing so." See, Ronald Rotunda and John Nowak, Treatise on Constitutional Law, 2nd ed., at vol. 4, pages 112-113, ¶ 20.19.

3/21. Viviane Reding, the European Commissioner for Information Society and Media, gave a speech titled "Convergence and Innovation: the New Agenda for Growth and Jobs" at the Meeting of the Council of Presidents of UNICE, in Brussels, Belgium, on March 21, 2005.

She explained her understanding of her role, and her plans for increasing productivity growth and economic growth by limited regulation, increasing competition in ICT, increasing government ICT research spending, and encouraging private sector ICT research.

"I am the Commissioner for Convergence. For the first time there is one Commissioner responsible for both infrastructure and content." She added, "you should know that I am the Commissioner for innovation and growth".

She argued that the information and communications technology sector (ICT) is critical for increased productivity, economic growth, and creating more jobs. She said that "one of the key reasons why Europe is not growing enough is because it is not investing enough ICT and it is not investing broadly enough in ICT. I will explain to you what I intend to do about this". She also said that Europe lags behind the US in productivity growth and economic growth, "And a good deal of the difference between the USA and Europe can be explained by the fact that we are not as strong in the ICT industries."

"I have under my responsibility two important regulatory instruments. The first is the Directive on Television without Frontiers. The second is the electronic communications regulatory framework. Both are subject to review and adaptation in favour of growth and jobs in the first two years of my mandate. I can tell you now that both of these reviews will be undertaken with the intention to promote convergence and to generate growth and jobs", said Reding.

"The Television without Frontiers Directive can no longer just be concerned with broadcasting. Television is now on the Internet; it is also going mobile. Admittedly, for the moment TV on the internet is small scale -- but it will grow", said Reding. "I will only regulate this new market where absolutely necessary in the concerns of European citizens for diversity, quality, decency and safety from abusive uses."

She added that "convergence means increased competition between media. This indicates relaxing regulatory restrictions to leave more to the market and to consumer choice than in the traditional media world. In particular, I am thinking about easing advertising restrictions."

Increasing Competition in Electronic Communications. She then discussed, in vague terms, increasing competition in communications. She said that "Next year I will have to launch the review of the electronics communications regulatory package. I am generally quite impressed with this legislation, it is open, encourages competition and it is technology neutral. I am not at all impressed with the response of some Member States towards it."

"Where competition fails, the market is blocked. Member States that do not promote competition are hampering their own growth."

She continued that "My experts tell me that one of the reasons why broadband is not taking off is that interesting content is not available. ... Experts say that it is quite likely that high definition video images, particularly TV on demand, will be crucial to trigger a wide and rapid take up of high speed broadband. Unfortunately, it appears that the current broadband technologies cannot deliver a high quality of TV on demand."

"I am not planning an attack on tele-communication providers", said Reding. But, she said that she "will be tough on the principles of competition. This is enshrined in the regulatory framework, and it works. There is a direct causal relationship between more competition and higher broadband take-up. My question is how can I increase competition to make sure that convergence keeps on track?"

Research Spending. She said that Europe should spend more on ICT research. She elaborated that currently, "Europe has research leadership in some ICT areas notably microprocessors and embedded systems and fixed and mobile communications. But advantage today does not mean advantage tomorrow. Europe is vulnerable to increased international competition against the very high levels of investment in emerging countries like India and China."

She said that the Community Research Budget should include more for ICT.

She listed some worthy areas: "nanoelectronics, embedded systems mobile technologies and so on. Frontier research is also very important, for example quantum communications, cognitive systems, organic micro-systems and advanced robotics." She also cited "security, authentication and standards & interoperability".

She also said the she wants to "make sure that the framework conditions are right for encouraging investment in research". However, she did not state how she plans to do this.

She also praised RFID as something that can open up "many new markets".

Finally, she admitted that "I cannot deliver on these promises alone."

3/28. The Bureau of Industry and Security (BIS) published a notice in the Federal Register that it identifies as an "Advance notice of proposed rulemaking" pertaining to deemed exports.

The BIS notice states that it seeks comments regarding the report [64 pages in PDF] written by the Department of Commerce's (DOC) Office of Inspector General (OIG) titled "Deemed Export Controls May Not Stop the Transfer of Sensitive Technology to Foreign Nationals in the U.S." The BIS states that adopting the OIG's recommendations would require the BIS to amend its regulations.

The BIS, which was previously named the Bureau of Export Administration (BXA), regulates exports for national security purposes. This includes regulation of the export of dual use items, such as computers, microprocessors, software and encryption products. This BIS also regulates business practices that it identifies as "deemed exports", such as employment of foreign nationals, use of software by foreign nationals, and access to technical data by foreign nationals. The BIS also has used its regulation of exports to attempt to control domestic production and sales.

The deadline to submit comments is May 27, 2005.

See, Federal Register, March 28, 2005, Vol. 70, No. 58, at Pages 15607 - 15609.

3/28. The Supreme Court announced that "The Court will take a recess from Monday, April 4, 2005, until Monday, April 18, 2005." See, Order List [12 pages in PDF] at page 12.

3/28. The Copyright Office published a notice in the Federal Register announces, describes, recites, and sets the effective date (March 28) for its amendments to its regulations concerning group registration of published photographs to limit to 750 the number of photographs that may be identified on continuation sheets submitted with a single application form and filing fee. The regulations also provide that the date of publication for each photograph may be identified in a text file on the CD-ROM or DVD that contains the photographic images or on a list that accompanies the deposit and provides the publication date for each image. See, Federal Register, March 28, 2005, Vol. 70, No. 58, at Pages 15587 - 15590.

3/24. 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 its intercarrier compensation system. The deadline to submit initial comments is May 23, 2005. The deadline to submit reply comments is June 22, 2005. This FNPRM is FCC 05-33 in CC Docket No. 01-92. The FCC adopted this FNPRM at its meeting of February 10, 2005, and released it on March 3, 2005. See, Federal Register, March 24, 2005, Vol. 70, No. 56, at Pages 15030 - 15044. See also, story titled "FCC Adopts FNPRM in Intercarrier Compensation Proceeding" in TLJ Daily E-Mail Alert No. 1,076, February 14, 2005.

The House will not meet. It will return from its Spring recess at 2:00 PM on Tuesday, April 5. See, House calendar.

The Senate will not meet. It will return from its Spring recess at 2:00 PM on Monday, April 4. See, Senate calendar.

10:00 AM. The Supreme Court will hear oral argument in MGM v. Grokster. See, March calendar [PDF].

11:00 AM. The Supreme Court will hear oral argument in FCC v. Brand X. See, March calendar [PDF].

10:00 AM - 1:00 PM. The Federal Communications Commission's (FCC) Network Reliability and Interoperability Council (NRIC) will meet. See, FCC notice [PDF] and notice in the Federal Register, March 1, 2005, Vol. 70, No. 39, at Page 9951. Location: FCC, Room TW-305, 445 12th St., SW.

Day one of a four day conference of the American Bar Association's Section on Antitrust. See, agenda [PDF]. Location: JW Marriott Hotel and Willard Hotel.

Deadline to submit reply comments to the Federal Communications Commission (FCC) regarding the progress made by the states in implementing E911 solutions for multi-line telephone systems (MLTSs). See, notice in the Federal Register, January 13, 2005, Vol. 70, No. 9, at Pages 2405 - 2406.

11:00 AM. Lydia Parnes, acting Director of the Federal Trade Commission's (FTC) Bureau of Consumer Protection, will hold a news conference to announce actions targeting deceptive and misleading debt related services. For more information, call 202-326-2180. The FTC notice adds that "Reporters unable to attend the event may call in. The call-in information is as follows:
  Dial-in Number: 1-800-377-4562
  Confirmation Number: 40068804
  Chairperson: Bruce Jennings"
Location: FTC, Room 432, 600 Pennsylvania Ave., NW.

12:00 PM. The Cato Institute will host a panel discussion titled "The Case for CAFTA: Consolidating Central America’s Freedom Revolution". The speakers will be Daniel Griswold and Daniel Ikenson of the Cato's Center for Trade Policy Studies. See, notice and registration page. Lunch will be served. Location: Room B-354, Rayburn Building, Capitol Hill.

Day two of a four day conference of the American Bar Association's Section on Antitrust. See, agenda [PDF]. Location: JW Marriott Hotel and Willard Hotel.

Day one of a two day conference hosted by the National Institute of Standards and Technology (NIST), the Department of Homeland Security (DHS), and other entities titled "Workshop on Biometrics and E-Authentication Over Open Networks". See, NIST notice and conference web site. Location: NIST, Gaithersburg, MD.

Day one of a two day conference hosted by Isen.com titled "F2C: Freedom to Connect". Prices ranges from $250 to $350. See, conference web site. Location: AFI Silver Theatre and Cultural Center, 8633 Colesville Road, Silver Spring, Maryland.

Deadline to submit to the Federal Communications Commission (FCC) petitions to deny Nextel's and Sprint's joint applications for FCC approval of the transfer of control to Sprint of the licenses and authorizations held both by Nextel. That is, this is a merger review proceeding. See, FCC Public Notice [7 pages in PDF], No. DA 05-502, in WT Docket No. 05-63. On December 15, 2004, the two companies announced a "definitive agreement for a merger of equals". See, Nextel release and release.

Deadline to submit comments to the U.S. Patent and Trademark Office (USPTO) in response to its notice of proposed rulemaking regarding changes to patent and trademark fees. See, notice in the Federal Register, February 28, 2005, Vol. 70, No. 38, at Pages 9570-9573.

9:30 AM - 3:30 PM. The Federal Communications Commission (FCC) will hold an orientation session for the new Integrated Spectrum Auction System (ISAS). See, FCC notice [PDF]. Preregistration is requested; call 888 225-5322. Location: FCC, 445 12th Street, SW.

3:00 - 4:30 PM. The Advisory Committee for the Congressional Internet Caucus will host a panel discussion titled "McCain-Feingold in Cyberspace: How Much Should Bloggers and the Internet Be Regulated?" The speakers will include Mike Cornfield (Pew Internet & American Life Project), Scott Thomas (Chairman of the Federal Election Commission), Mike Krempasky (redstate.org), and John Morris (Center for Democracy & Technology). See, notice. RSVPs to rsvp at netcaucus dot org or 202 638-4370. Location: Room HC5, Capitol Building.

Day two of a two day conference hosted by the National Institute of Standards and Technology (NIST), the Department of Homeland Security (DHS), and other entities titled "Workshop on Biometrics and E-Authentication Over Open Networks". See, NIST notice and conference web site. Location: NIST, Gaithersburg, MD.

Day two of a two day conference hosted by Isen.com titled "F2C: Freedom to Connect". Prices ranges from $250 to $350. See, conference web site. Location: AFI Silver Theatre and Cultural Center, 8633 Colesville Road, Silver Spring, Maryland.

Day three of a four day conference of the American Bar Association's Section on Antitrust. See, agenda [PDF]. Location: JW Marriott Hotel and Willard Hotel.

Deadline to submit comments to the Office of the U.S. Trade Representative's (USTR) Trade Policy Staff Committee on the scope of the environmental review of the multilateral negotiations of the Doha Development Agenda (DDA) conducted under the auspices of the World Trade Organization (WTO). The deadline to submit comments is March 31, 2005. See, notice in the Federal Register, January 14, 2005, Vol. 70, No.10, at Pages 2695 - 2696.

Deadline to submit initial comments to the Federal Communications Commission (FCC) regarding TSA Stores, Inc.'s Petition for Declaratory Ruling to preempt a provision of the statutes of the state of Florida as applied to interstate telephone calls. This is CG Docket No. 02-278, which pertains to rules implementing the Telephone Consumer Protection Act of 1991 (TCPA). See, notice in the Federal Register, March 1, 2005, Vol. 70, No. 39, at Pages 9875-9876.

12:15 PM. The Federal Communications Bar Association's (FCBA) Wireless Practice Committee will host a luncheon. The topic will be "Intercarrier Compensation". The speakers will be Diane Cornell (CTIA), Charles McKee (Sprint), James Ramsey (National Association of Regulatory Utility Commissioners), and Gerry Duffy (Alliance). The price to attend is $15. Send RSVP's and/or cancellations to Wendy Parish at wendy@fcba.org by 5:00 PM on Wednesday, March 30. For more information, contact Adam Krinsky at akrinsky at wbklaw dot com. Location: 6th Floor, Sidley Austin, 1501 K Street, NW.

Day four of a four day conference of the American Bar Association's Section on Antitrust. See, agenda [PDF]. Location: JW Marriott Hotel and Willard Hotel.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Report and Order and Further Notice of Proposed Rulemaking (FNPRM) [54 pages in PDF] regarding the children's programming obligations of digital television broadcasters. This item is FCC 04-221 in MM Docket 00-167. See, 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.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to BellSouth's petition for pricing flexibility for switched access services. See, FCC Public Notice DA 05-740 in WC Docket No. 05-148.

The Senate will return from its Spring recess. See, Senate calendar.

The Supreme Court will begin a recess. It will return on Monday, April 18. See, Order List [12 pages in PDF] at page 12.

The American Bar Association's Section on Public Utility, Communications and Transportation Law will host a one day conference. At 10:45 AM there will be a panel titled "Voice Over Internet: Molding a Regulatory Structure from Legacy Regulations". The scheduled speakers include William Banks Wilhelm (counsel for Vonage), Chris Libertelli, and Keith Epstein (SBC). At 3:15 PM Sen. Larry Craig (R-ID) is scheduled to speak. See, agenda [PDF]. Location: PEPCO Holdings Conference Center, 701 9th Street, NW.

11:00 AM - 12:00 NOON. The Advisory Committee for the 2007 World Radiocommunication Conference will meet. Location: FCC, Room TW-C305 (Commission Meeting Room), 445 12th St., SW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in VM Tech v. Compaq Computer, No. 04-1436. Location: Courtroom 402, 717 Madison Place, NW.

10:00 AM - 12:00 NOON. The Department of State's International Telecommunication Advisory Committee (ITAC) will meet to prepare for the Organization of American States' (OAS) Inter-American Telecommunication Commission's (CITEL) Permanent Consultative Committee II meeting in Guatemala to be held in April 2005. See, notice in the Federal Register, December 30, 2004, Vol. 69, No. 250, at Pages 78515-78516. For more information, including the location, contact Cecily Holiday at holidaycc@state.gov or Anne Jillson at jillsonad@state.gov. Location: undisclosed.

6:00 - 8:15 PM. The DC Bar Association will host a continuing legal education (CLE) program titled "Legal Beat: How to Use Music Legally in a Business". The scheduled speaker is Joy Butler (Sashay Communications). See, notice. Prices vary from $70 to $124. For more information, call 202 626-3488. Location: D.C. Bar Conference Center, B-1 Level, 1250 H St., NW.

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