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March 30, 2005, 9:00 AM ET, Alert No. 1,106.
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Supreme Court Hears Oral Argument in Brand X Case

3/29. The Supreme Court heard oral argument in FCC v. Brand X. The Federal Communications Commission (FCC), as well as cable companies, want the Court to overturn the 2003 opinion [39 pages in PDF] of the 9th Circuit, which vacated the FCC's 2002 Declaratory Ruling (DR) that cable modem service is an information service, and that there is no separate offering as a telecommunications service.

Former Chairman Powell, and other Commissioners who supported the Declaratory Ruling (DR), have the understanding that the old regulatory classifications of the Communications Act are becoming increasingly obsolete as new technologies are developed, and technologies converge. They were driven by their policy goals of promoting investment in new facilities, promoting technological innovation, promoting intermodal competition between different providers, and ultimately, promoting the deployment of inexpensive and ubiquitous broadband, and all of the news services that will run over broadband.

In contrast, the Justices, in their questions and comments, where concerned almost exclusively with applying the statute, without regard to the consequences. The Justices also displayed no interest in issues related to deference to the decisions of administrative agencies.

Background. On March 14, 2002, the FCC adopted a Declaratory Ruling and Notice of Proposed Rulemaking [75 pages in PDF]. The Declaratory Ruling (DR) component of this item states that "we conclude that cable modem service, as it is currently offered, is properly classified as an interstate information service, not as a cable service, and that there is no separate offering of telecommunications service."

Brand X, EarthLink, the State of California, and the Consumer Federation of America filed petitions for review in which they argued that cable modem service is both an information service and a telecommunications service, and is therefore subject to regulation on a common carriage basis. That is, they argue that cable broadband providers must be required to let other internet service providers (ISPs) use their facilities.

On October 6, 2003 the U.S. Court of Appeals (9thCir) issued its opinion [39 pages in PDF] in Brand X Internet Services v. FCC, vacating the FCC's declaratory ruling that cable modem service is an information service, and that there is no separate offering as a telecommunications service. See also, story titled "9th Circuit Vacates FCC Declaratory Ruling That Cable Modem Service is an Information Service Without a Separate Offering of a Telecommunications Service" in TLJ Daily E-Mail Alert No. 754, October 7, 2003. This opinion is also reported at 345 F.3d 1120.

Oral Argument. Two things may be notable about the Justices' questions and comments during the oral argument in the this case.

First, there was almost nothing said regarding the Chevron doctrine, the 9th Circuit's determination not to apply Chevron deference, or the implications of the unusual procedure that resulted in the Court of Appeals not applying Chevron deference.

The 9th Circuit decided without applying the deference to administrative agencies required by Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837 (1984). Rather, it concluded that it was bound by the doctrine of stare decisis to follow its June 22, 2000 opinion in AT&T v. Portland, which held that cable modem service is a telecommunications service. (The Portland case is also reported at 216 F.3d 871.)

The FCC was not a party to that earlier action; it had not yet issued its DR. Moreover, the cable operator, AT&T, argued for telecommunications status, rather than information services status. AT&T's success in implementing its legal strategy now plagues companies that build broadband facilities.

The Appeals Court's proceeding in the present case was a consolidation of numerous petitions for review filed in several different circuits. The case only went to the 9th Circuit because it won the lottery. Had the case gone to any other circuit, the Portland decision would not have bound the Court under the doctrine of stare decisis. The Court would likely have applied Chevron deference, and the DR would have been upheld.

However, none of this was discussed by the Justices during oral argument.

Second, the Justices said almost nothing about how the FCC's policy for promoting broadband deployment will be affected by the Court's decision in this case.

While Justices repeatedly discussed policy implications of various possible rulings in the MGM v. Grokster case at 10:00 AM, they had nothing to say about the policy implications in the FCC v. Brand X case at 11 AM..

Most of the Justices asked few or no questions. Justice Antonin Scalia and Justice Stephen Breyer dominated the discussion. Justice David Souter also contributed significantly.

Justices Scalia and Breyer asked questions regarding the statutory definitions in the Communications Act, various acts enacted by the Congress, and the definitions therein. There was also much discussion of the FCC's 1980 Computer II decision, which created a dichotomy of "basic services" and "enhanced services." It decided that the later are not subject to common carrier treatment under the Communications Act.

Scalia was unconcerned, in his questions and comments, about the policy implications for various possible regulatory treatments of broadband modem service. He said that the FCC's implementation is "good policy", but "how do you get this out of the definitions". He said that at the FCC "they are doing it all on policy grounds", and on the basis "of whether we like the result it produces".

Justice Breyer did comment later that he had no idea how consumers are going to get their broadband service in twenty years, so why not leave this to the agency with expertise in the matter.

Chief Justice Rehnquist was not active in the questioning in this case. However, at one point he commented that in passing the Telecommunications Act of 1996 the "Congress apparently wanted to go in the direction of deregulation".

Reaction. Randolph May, the Director of Communications Policy Studies at the Progress and Freedom Foundation (PFF), attended the oral argument. The PFF supports reversal of the 9th Circuit.

He was resigned when he spoke with reporters afterwards outside of the Supreme Court building. He said that "cable cannot come away from it feeling that they have a slam dunk". He added that now the cable industry "may have to get its legislative strategy cranked up".

He added that he thinks that Justice Scalia would follow the statute strictly, and affirm the judgment of the 9th Circuit, while Justice Breyer would likely defer to the FCC.

In addition, the PFF's Kyle Dixon, who previously worked for former Chairman Powell, stated in a release on March 25 that "Consumers benefit most when companies battle to build them the most sophisticated networks possible, not when regulators let companies free-ride on existing networks ... Should the FCC lose in Court or on remand to the 9th Circuit, ... the result would saddle broadband with regulatory costs, uncertainties and economic distortions, further delaying real choice for consumers."

Earthlink is an internet service provider that supports affirmance of the 9th Circuit. Dave Baker, VP for Law and Public Policy at EarthLink, opined in a statement released after the oral argument that this case "will decide whether consumers will be able to choose their broadband provider over cable and ultimately, over DSL as well. More broadly, it will determine whether a wide variety of innovative voice, video and data services become available, or whether Internet users will be limited to only those services their cable company provides."

He stated that "We believe the Supreme Court will affirm the Ninth Circuit's decision. ... Cable companies built their networks using government-granted monopoly franchises, access to public rights of way and discounted rates for pole attachments. Nonetheless, they now dictate what services, devices and applications companies can offer and consumers can use on those networks. We expect that the Supreme Court will affirm that consumers, and not cable companies, should make those choices."

TLJ also spoke with Earl Comstock, outside counsel for Earthlink, outside the Court. He was pleased with the questions and comments from the Justices, and "cautiously optimistic" about the outcome.

This case is NCTA v. Brand X Internet Services, No. 04-277, and FCC v. Brand X Internet Services, No. 04-281, petitions for writ of certiorari to the U.S. Court of Appeals for the 9th Circuit.

9th Circuit Rejects California's 11th Amendment Defense of Bogus Escheat of Intel Stock

3/29. The U.S. Court of Appeals (9thCir) issued its opinion [22 pages in PDF] in Taylor v. Westly, a case involving the 11th Amendment of the U.S. Constitution, and the state of California's attempt to confiscate the Intel stock of a resident of England under a plundering escheat scheme.

Background. Chris Taylor is a former employee of Intel. He lives in England. His wife is former general counsel for  Intel in Europe. He owns or owned 52,224 shares of Intel stock. The state of California confiscated and sold his stock. He wants his money back. California will not give it to him.

There is a second plaintiff in this case, Nancy Gonsalves, a former TWA flight attendant. California confiscated and sold her 7,000 shares of TWA stock. She too wants her money back.

California asserts that it has acquired the stock of Taylor and Gonsalves pursuant to the legal procedure of escheat. However, California's escheat procedure resembles confiscation of property by third world people's republics more than it resembles the doctrine of escheat.

Escheat derives from the common law of England, where it was developed during the medieval era. The Court of Appeals wrote that escheat "formerly terminated a tenancy so that on the death of a tenant without heirs, or as a result of a tenant’s felony that worked a corruption of the blood, the land escheated to the lord of the fee."

Of course, there are no more kings and lords. Today, the doctrine of escheat has evolved to allow the state to acquire title to the property of persons that has long been abandoned, and for which the state can locate no living owner or heirs.

The Court of Appeals wrote that escheat is "a means of dealing with money where money and property are unclaimed and the person entitled to it is dead or gone, gone to a degree that the person cannot be found and there is no other individual with a good claim."

California has attempted to further expand its powers under escheat to seize property, including stock in technology companies located in California, and even when the owners are alive and locatable.

It has drastically shortened the time period in which property may be found to be abandoned to three years. And, in the case of corporate stock, it has resorted to legal fictions to find abandonment.

In the present case, California asserts that abandonment is evidenced by the fact that Taylor did not cash any dividend checks over a three year period. But, Intel issued no dividends during the relevant time period, so Taylor had no checks to deposit, cash or negotiate.

California asserts also that Taylor abandoned his stock by not voting in elections of Directors. Although, many stockholders never vote, or sign proxies.

Finally, California asserts that Taylor abandoned his stock by being "lost" or "unknown". Yet, California knew who he was, and made no attempt to establish that he had died (he hadn't). Moreover, Intel knew where he was, and was in correspondence with him on various matters. California made no attempt learn his location, or to contact him.

Moreover, Taylor had certificates issued to him. They were in his possession. They had not been abandoned.

The California statutory escheat procedure also requires that the state publish the names of people, and their property, that is subject to escheat. California never published Taylor's name or property. Also, the statute requires the state to institute a judicial escheat proceeding. California never did this.

California nevertheless confiscated Taylor's shares by ordering Intel to cancel his shares and issue new shares to the state. The state then sold these shares, and put the money in the general fund.

Nancy Gonsalves was subjected to a similar confiscation. The Court of Appeals, in its recitation of the facts, made no effort to conceal its distain for California's escheat scheme. It wrote for example, that "California is taking the flight attendant's stock in her airline on the basis, basically, that she cannot be found, even while she is standing in court shouting, ``Here I am! Here I am! Give me my money!´´ And the State of California turns a deaf ear, pretending it cannot hear her."

The Court of Appeals wrote that "Neither of these plaintiffs were really hard to find, nor did they mean to abandon their property."

(Intel has not responded to inquiries from TLJ. Neither has counsel of record for the state of California.)

District Court. When Taylor and Gonsalves learned of the confiscation, they filed a complaint in the U.S. District Court (EDCal) against Steve Westly, in his capacity as Controller of the State of California. They sought a variety of relief, including monetary damages. They also alleged violation of the Due Process and Takings clauses of the U.S. Constitution, violation of federal securities laws, and violation of the state Unclaimed Property Act.

They also sought a declaratory judgment and "disgorgement and return of either their stock investment or the return of the reasonable value thereof".

California moved to dismiss for lack of subject matter jurisdiction. It argued that it is immune from suit under the 11th Amendment of the U.S. Constitution. The District Court dismissed the complaint, without reaching the merits of the case. It held that California has 11th Amendment immunity. This appeal followed.

11th Amendment. The 11th Amendment provides that "The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State."

It is an ancient principle, the 18th Century rationale of which has little relevance today. Nevertheless, the Supreme Court given it new meaning in recent years. For example, in Seminole Tribe v. Florida the Supreme Court held that the Congress lacks authority under Article I of the Constitution to abrogate the States' 11th Amendment immunity from suit in federal courts. The Supreme Court extended this to the context of intellectual property in the 1999 rulings in Florida Prepaid v. College Savings Bank (invalidating the Patent and Plant Variety Protection Remedy Clarification Act) and College Savings Bank v. Florida Prepaid (invalidating the Trademark Remedy Clarification Act).

The immunity doctrine contained in the 11th Amendment has also been limited by the doctrine of Ex Parte Young, 209 U.S. 123 (1908), which provides that a federal court may enjoin a state from enforcing a law the constitutionality of which has been challenged. The general principle is that, notwithstanding the 11th Amendment, one can bring suit in federal court against a state seeking prospective injunctive relief. However, one cannot seek monetary damages.

For example, the Supreme Court held in 2002 in Verizon Maryland v. Public Service Comm. of Maryland [PDF], that "In determining whether the doctrine of Ex Parte Young avoids an Eleventh Amendment bar to suit, a court need only conduct a straightforward inquiry into whether [the] complaint alleges an ongoing violation of federal law and seeks relief properly characterized as prospective."

Court of Appeals. The Court of Appeals reversed in a unanimous opinion.

The issue before the Court of Appeals was whether the District Court erred in dismissing the complaint for lack of subject matter jurisdiction, pursuant to the 11th Amendment. The issue was not the legality of the confiscation of stock.

The task of the Court of Appeals, therefore, was to construe a claim for money as a claim for prospective injunctive relief.

So, the Court of Appeals reasoned, this is not a suit for money damages. It is a suit for injunctive relief. The Court reasoned that California has not confiscated and sold the stock. Rather, it is merely holding the stock, and the proceeds of its sale, in trust for Taylor and Gonsalves. And, Taylor and Gonsalves seek injunctive relief ordering the state to return to them their property that is being held in trust.

The Court of Appeals concluded that "Because the plaintiffs seek genuinely prospective relief, and because the funds they seek are held by the state as custodian in trust for them rather than as the state's own funds, much as a municipality holds a car towed from an expired parking meter, the complaint should not have been dismissed under the Eleventh Amendment for lack of jurisdiction. The judgment is vacated and the case is remanded for proceedings consistent with this opinion."

In crafting this opinion, the Court of Appeals not only got around 11th Amendment immunity; it also held, as a part of its analysis that the property is held in trust, that California had not complied with its own escheat statute. Hence, the Court of Appeals has issued an opinion that will make it more difficult for the state to prevail on the merits on remand to the District Court.

11th Amendment and Intellectual Property Rights. The state of California asserts 11th Amendment immunity to shield it from adverse court judgments, not only to protect its pillaging escheat scheme, but also to protect other profitable, but improper appropriations. In particular, the 11th Amendment also shields it from suits for monetary damages for infringement of copyrights and patents, and other violations of intellectual property rights. The state maintains a huge system of universities that profits financially from its infringement of the intellectual property rights of others.

The present case does not address intellectual property rights (IPR) litigation. Nevertheless, this opinion cannot be comforting to IPR counsel at state universities.

The Court of Appeals opinion, which was written by Judge Kleinfeld, has taken a complaint that asks for money based upon the wrongful conduct of state officials, and held that this is not a claim for monetary damages (which would be barred by the 11th Amendment), but rather that this is a claim for injunctive relief (which is not barred by the 11th Amendment) because its asks the court to order the return of money held in trust.

Another judge with Kleinfeld's concern for property rights, and slight regard for the 11th Amendment, hypothetically might conclude that an IPR owner whose rights have been infringed by a state is not seeking monetary damages, but rather is seeking an order for the return of funds held in trust by the infringing state for the owner of the infringed right. It is a stretch. But then, the opinion in Taylor v. Westly is a stretch.

Three Judge Panel. Appeals from the District Court are almost always heard by randomly assigned three judge panels. Taylor and Gonsalves may have won this round because they were very lucky in the draw of the panel.

The 9th Circuit is dominated by judges from California. None of this panel is from California. Moreover, two of the panelists are far more protective of individuals' property rights against state incursions than the 9th Circuit as a whole.

One judge, Richard Beezer, who is probably most remembered in the technology sector for his opinion in the Napster case, was one of Ronald Reagan's appointments. He is from Seattle, Washington. Another judge, Richard Cudahy, is not even a member of the 9th Circuit. He is a senior status judge on the 7th Circuit.

The writer of the opinion, Andrew Kleinfeld, another Republican, is from Fairbanks, Alaska.

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Supreme Court Hears Oral Argument in MGM v. Grokster

3/29. The Supreme Court heard oral argument in MGM v. Grokster. Justices were active in asking tough questions of both the peer to peer (P2P) and entertainment industries' counsel.

Background. Metro Goldwyn Meyer (MGM), and other movie companies, and various record companies, filed a complaint in the in the U.S. District Court (CDCal) against Grokster, Streamcast and Kazaa alleging copyright infringement, in violation of 17 U.S.C. § 501. They alleged contributory and vicarious infringement.

In addition, professional songwriters and music publishers filed a class action complaint against the same defendants alleging contributory and vicarious infringement. The two actions were consolidated. The parties filed cross motions for summary judgment regarding software provided by Grokster and Streamcast.

On April 25, 2003, the District Court issued its opinion holding that Grokster's and Streamcast's P2P networks do not contributorily or vacariously infringe the copyrights of the holders of music and movie copyrights. See also, story titled "District Court Holds No Contributory or Vicarious Infringement by Grokster or Streamcast P2P Networks" in TLJ Daily E-Mail Alert No. 650, April 28, 2003

On August 19, 2004, the U.S. Court of Appeals (9thCir) issued its opinion [26 pages in PDF], affirming the District Court holding that Grokster's and Streamcast's P2P networks do not contributorily or vicariously infringe the copyrights of the holders of music and movie copyrights. See, story titled "9th Circuit Holds No Vicarious Infringement in Grokster Case" in TLJ Daily E-Mail Alert No. 963, August 20, 2004. The 9th Circuit's opinion is reported at 380 F.3d 1154.

The individual infringers are not involved in this case.

The Office of the Solicitor General (SG) backs the copyright holders. See, SG brief urging reversal, and story titled "Petitioners, Solicitor General, & Amici Urge Supreme Court to Reverse in MGM v. Grokster" in TLJ Daily E-Mail Alert No. 1,063, January 26, 2005.

Oral Argument. All of the Justices participated in the questioning of counsel, except Clarence Thomas, who was present, but who rarely asks questions at oral argument. When counsel for MGM and the U.S. presented their arguments, Justices asked them tough questions. Then, when counsel for the P2P companies presented his argument, many of the same Justices gave him tough questions and comments.

Justice Stephen Breyer asked MGM's counsel if he was sure he could recommend to Johannes Gutenberg and the inventors of the iPod that their inventions would have meet the test that MGM urges the court to apply. Breyer then suggested that "the monks had a fit when Gutenberg made his press".

MGM's counsel (Donald Verrilli of the law firm of Jenner & Block) argued that Grokster's P2P service has "no commercially significant non-infringing use". He responded to Justice Breyer that when the iPod was invented there was "a very significant lawful use for that device going forward".

Justice Antonin Scalia suggested that under the standard urged by MGM, many inventors will know that "I am going to get sued right away", and before they have a chance to build up their businesses.

Justice David Souter said of the "no commercially significant non infringing use" test, that "there is never evidence at the time the guy is sitting in the garage" developing his invention. So, Souter asked, what gives the inventor confidence to go ahead? And, Souter asked, why is it not a foregone conclusion that the inventor is going to loose his shirt?

Justice Souter also suggested that MGM's test would hang the mythical "Damoclean sword" over inventors of products like the iPod.

MGM's counsel responded that in the real world these inventors "have not immediately gotten sued".

Justice Scalia told counsel for the U.S. that "what I worry about is the suit that comes right out of the box". He asked whether the inventor should not get time to develop a commercial use.

Paul Clement, the acting Solicitor General, responded that in the Grokster case, the business plan "from day one" was to make money off of infringing use.

Counsel for Grokster (Richard Taranto of the law firm of Farr & Taranto) urged adherence to Sony, which he called "a clear test".

The Supreme Court held in Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417 (1984), that the "sale of video cassette recorders (``VCR´´s) did not subject Sony to contributory copyright liability, even though Sony knew as a general matter that the machines could be used, and were being used, to infringe the plaintiffs' copyrighted works. Because video tape recorders were capable of both infringing and ``substantial noninfringing uses,´´ generic or ``constructive´´ knowledge of infringing activity was insufficient to warrant liability based on the mere retail of Sony’s products."

However, Justice Ruth Ginsburg asked how it is that the Sony case could be considered to provide a clear test. She pointed out that after stating the test, the Court continued to explain it for another 13 pages. How can it be clear if it took 13 pages to explain, she asked.

Justice Scalia interjected, "this Court is certainly not going to decide this case on the basis of stare decisis."

Justice Breyer questioned why Sony's "capable of substantial non-infringing uses" test should be the test.

Kennedy offered no kind words for the P2P position. He suggested that what Grokster is asking is that a P2P software company be allowed to use stolen property "as part of the start up capital for his product".

Justice Ginsburg also characterized the 9th Circuit's decisions in the Napster and Grokster cases as "two apparently conflicting decisions". See, A & M Records, Inc. v. Napster, Inc., 239 F.3d 1004 (2001).

Justice Souter also questioned counsel for Grokster regarding willful ignorance. "Why isn't this a classic willful ignorance case", he asked. Counsel denied that it is, but Souter followed up, "it seems like that is what we got".

Justice Scalia then added that it appears that Grokster decentralized "solely to get around Napster".

Reaction. The questions and comments of Justices gave encouragement to the proponents of both the P2P companies' and copyright holders' positions.

Gary Shapiro, P/CEO of the Consumer Electronics Association (CEA), told TLJ outside the Court afterwards that his was "very encouraged" by the oral argument. He was particularly pleased that Justice Breyer raised Gutenberg's press and the iPod.

Shapiro said that "I thought it was absolutely terrific that they focused on the real problems that inventors have".

Gigi Sohn, President of Public Knowledge, to reinforce this point, wore an iPod Shuffle around her neck as she spoke to reporters in front of the Court.

Cato Paper Argues For Negligence Liability Rather Than Statutory Regulatory Regime for Data Security Breaches

3/29. James Harper, the Director of Information Policy Studies at the Cato Institute, released an essay titled "When Data Security Regulations Fail, There Is an Alternative".

This essay argues that data aggregators, such as ChoicePoint, and banks, such as Bank of America, should not be subjected to a uniform statute based data regulatory regime. Rather, there should be a judicially imposed liability regime based upon the law of negligence.

ChoicePoint announced on February 21, 2005 that "organized criminals posing as legitimate companies gained access to personal information" about 145,000 individuals. See, story titled "ChoicePoint Describes Its Sale of Data to Identity Thieves" in TLJ Daily E-Mail Alert No. 1,081, February 23, 2005.

Bank of America announced on February 25, 2005 that it lost "computer data tapes" during "shipment to a backup data center". It stated in its release that "The missing tapes contained U.S. federal government charge card program customer and account information".

There are proposals to regulate data aggregators. For example, on March 2, 2005, Rep. Ed Markey (D-MA), the ranking Democrat on the House Commerce Committee's Subcommittee on Commerce, Trade and Consumer Protection, introduced HR 1080, the "Information Protection and Security Act". This bill would require information brokers to comply with a set of new fair information practice rules. It would give enforcement authority to the Federal Trade Commission (FTC) and states. It would also allow a private cause of action.

Similarly, the Electronic Privacy Information Center (EPIC) argued for regulation of data aggregators even before the recent disclosures by ChoicePoint, Bank of America, and others. It advocates extending Fair Credit Reporting Act (FCRA) like regulation to data aggregators. See, for example, story titled "EPIC Seeks Congressional Hearing and FTC Workshop on Data Products and FCRA" in TLJ Daily E-Mail Alert No. 1,052, January 10, 2005, and "EPIC Urges FTC to Open Investigation on Data Products and FCRA" in TLJ Daily E-Mail Alert No. 1,042, December 22, 2004.

Harper argues that "Data security regulation is a proven failure", and cites the history of the FCRA as proof.

He states that the credit bureaus "have been besieged for years by complaints about inaccuracy and unfairness. This despite the Fair Credit Reporting Act, a federal regulatory scheme imposed 30 years ago to address inaccuracy and unfairness in credit reporting. The FCRA was amended in 2003 to address inaccuracy and unfairness in credit reporting. Again."

Harper argues that "regulation is no more capable of divining threats to data security than, say, a common law liability regime, or even businesses’ natural interest in maintaining their operations, integrity, image, brand, and assets."

Hence, he advocates, "Rather than hurried, one-size-fits-all federal regulation, imagine a rule where negligent holders of sensitive data suffer liability for damage caused by breaches. Imagine they have to pay injured parties for the consequences. Ten thousand breaches causing $1000 damage would cost a negligent data holder $10 million, along with adverse publicity and all the rest. Under such a rule, breached companies would race to shore up the damage because further damage would create further liability."

Harper further states that it is not necessary to pass legislation. Simply allow the common law process in the various state court to extend the law of negligence to data security breaches.

The Congress has held several hearings on this issue. See, stories titled "House Subcommittee Holds Hearing on Data Aggregators" in TLJ Daily E-Mail Alert No. 1,096, March 16, 2005; "Senate Banking Committee Holds Hearing on Data Security" in TLJ Daily E-Mail Alert No. 1,093, March 11, 2005; and "Senate Judiciary Committee Could Hold Hearings on ChoicePoint, Technology, Privacy and Security" in TLJ Daily E-Mail Alert No. 1,083, February 25, 2005.

See also, story titled "Reed Elsevier Reveals Fraudulent Access to Databases of Personal Information" in TLJ Daily E-Mail Alert No. 1,093, March 11, 2005.

Washington Tech Calendar
New items are highlighted in red.
Wednesday, March 30

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.

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 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.

Thursday, March 31

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 (, 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 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.

Friday, April 1

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 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.

Monday, April 4

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.

Tuesday, April 5

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 or Anne Jillson at 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.

Wednesday, April 6

9:00 AM - 1:00 PM. The Department of Commerce (DOC) will host a half day workshop on radio frequency identification (RFID) technology. See, DOC notice [PDF]. Location: DOC, 1401 Constitution Ave., NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Network Commerce v. Microsoft, No. 04-1445. Location: Courtroom 402, 717 Madison Place, NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Hynix Semiconductor v. U.S., No. 04-1417. Location: Courtroom 402, 717 Madison Place, NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in In Re, No. 04-1447. This is an appeal from the U.S. Patent and Trademark Office's (USPTO) Trademark Trial and Appeal Board 's (TTAB) disposition [28 pages in PDF] affirming the denial of an application to register the mark The TTAB held that it "is merely descriptive and generic for the services recited in the application and that applicant has not demonstrated that it has acquired distinctiveness". Location: Courtroom 203, 717 Madison Place, NW.