7/7. The Federal Communications Commission (FCC) released an agenda [3 pages in PDF] for its event titled "Open Commission Meeting", on July 14, 2005. It is scheduled to adopt a further notice of proposed rulemaking regarding its media ownership rules.

The FCC's agenda provides the following title for this item: "2002 Biennial Regulatory Review -- Review of the Commission's Broadcast Ownership Rules and Other Rules Adopted Pursuant to Section 202 of the Telecommunications Act of 1996 (MB Docket No. 02-277); Cross-Ownership of Broadcast Stations and Newspapers (MM Docket No. 01-235); Rules and Policies Concerning Multiple Ownership of Radio Broadcast Stations in Local Markets (MM Docket No. 01-317); and Definition of Radio Markets (MM Docket No. 00-244)."

On June 24, 2004, the U.S. Court of Appeals (3rdCir) issued its opinion [213 pages in PDF] in Prometheus Radio Project v. FCC overturning some of the FCC's latest media ownership rules. See, story titled "3rd Circuit Rules in Media Ownership Case" in TLJ Daily E-Mail Alert No. 930, July 1, 2004.

The Supreme Court denied certiorari. See, order list of June 13, 2005, and story titled "Supreme Court Denies Certiorari in Media Ownership Rules Case" in TLJ Daily E-Mail Alert No. 1,153, June 14, 2005.

Pursuant to a forum shopping strategy, opponents of the FCC's rules filed petitions for review in multiple circuits. The Judicial Panel on Multidistrict Litigation then assigned the case by lottery to the Third Circuit. This is significant because previous petitions for review had been heard by the DC Circuit. The FCC now faces the task of writing rules that are consistent with disparate opinions of these two circuits.

On June 2, 2003, the FCC announced its Report and Order and Notice of Proposed Rulemaking amending its media ownership rules. See, story titled "FCC Announces Revisions to Media Ownership Rules" in TLJ Daily E-Mail Alert No. 672, June 3, 2003. See also, story titled "FCC Releases Media Ownership Order and NPRM" in TLJ Daily E-Mail Alert No. 692, July 7, 2003.

The 2003 rule changes were a response to the directions of the U.S. Court of Appeals (DCCir). For example, on April 2, 2002, the DC Circuit issued its opinion in Sinclair Broadcast Group v. FCC, remanding the FCC's local television ownership rule for further consideration. See, story titled "DC Circuit Remands Local TV Ownership Rule to FCC" in TLJ Daily E-Mail Alert No. 402, April 3, 2002.

Similarly, on February 19, 2002, the DC Circuit issued its opinion in Fox v. FCC. The Court held that the FCC's national TV station ownership rule (NTSO) and its cable broadcast cross ownership rule (CBCO) both violate the Administrative Procedure Act (APA) as arbitrary and capricious, and Section 202(h) of the Telecom Act. See, stories titled "DC Circuit Vacates Cable Broadcast Cross Ownership Rule", TLJ Daily E-Mail Alert No. 372, February 20, 2002, and "FCC Files Petition for Review of Appeals Court Opinion in Fox v. FCC" in TLJ Daily E-Mail Alert No. 415, April 22, 2002.

The agenda for the FCC's July 14 event also includes four other items. The FCC is scheduled to adopt an order regarding captioned telephone service and the compensation of two line captioned telephone calls from the Interstate Telecommunications Relay Services (TRS) Fund. This is CC Docket No. 98-67 and CG Docket No. 03-123. The FCC is also scheduled to adopt a report and order regarding the provision of Video Relay Service (VRS), including speed of answer, hours of service, and VRS Mail. This is CG Docket No. 03-123 and CC Docket No. 98-67. The FCC is also scheduled to adopt an order on reconsideration regarding the compensation of Spanish translation VRS from the Interstate TRS Fund. This is CC Docket No. 98-67 and CG Docket No. 03-123.

Finally, the FCC is scheduled to adopt a NPRM regarding the FCC's closed captioning rules, and a Petition for Rulemaking filed by Telecommunications for the Deaf, Inc. and several other consumer organizations representing deaf and hard of hearing individuals, seeking the establishment of quality standards and compliance mechanisms for closed captioning.

This event is scheduled for 9:30 AM on Thursday, July 14, 2005 in the FCC's Commission Meeting Room, Room TW-C305, 445 12th Street, SW. The event will be webcast by the FCC. The FCC does not always take up all of the items on its agenda. The FCC does not always start its monthly meetings at the scheduled time. The FCC usually does not release at its meetings copies of the items that its adopts at its meetings.

7/6. The Department of Justice (DOJ) filed a complaint in U.S. District Court (DC) against Alltel Corporation alleging violation of federal antitrust law in connection with Alltel's acquisition of Western Wireless. The DOJ also filed a proposed consent decree settling the case. The consent decree requires that Alltel divest assets in rural areas in the states of Arkansas, Kansas, and Nebraska.

The DOJ's Antitrust Division stated in a release that "ALLTEL and Western Wireless are regional mobile wireless services providers that serve many rural markets. Although a combination of these two regional providers gives the merged firm the benefit of having a larger service area footprint, the divestitures are required to assure continued competition in specific markets where ALLTEL and Western Wireless are each other's most significant competitors. According to the complaint, the proposed transaction would substantially reduce competition for mobile wireless telecommunications services in 16 areas where both ALLTEL and Western Wireless currently operate."

Alltel stated in a release that "Under the agreement, Alltel will divest 16 markets in Arkansas, Kansas and Nebraska now owned and operated by Western Wireless. The divestiture agreement includes all the assets - licenses, retail stores, employees and cell sites - used to operate the CDMA (Code Division Multiple Access) wireless business in those markets. The company also will divest the Cellular One brand that is owned by Western Wireless."

On July 6, Alltel filed a Form 8-K and attached exhibit titled "Unaudited Pro Forma Combined Condensed Financial Information" with the Securities and Exchange Commission (SEC). See also, Alltel's June 24, 2005 SEC filings.

7/7. Rep. James Sensenbrenner (R-WI), the Chairman of the House Judiciary Committee (HJC), released a statement [PDF] about extending the expiring provisions of the USA PATRIOT Act.

He stated, with reference to the terrorist attacks in London on July 7, that "It is not by luck that the United States has not been attacked since September 11, 2001. It is through increased cooperation and information sharing among law enforcement and intelligence agencies as well as the enhanced domestic security and investigative tools contained in legislation such as the PATRIOT Act."

Rep. Sensenbrenner said that the HJC "will soon markup legislation reauthorizing the counter terrorism tools established by Congress in the PATRIOT Act after the terrorist attacks of 9-11."

He added that "Now, more than ever, it is incumbent upon Congress and the American people not to let our guard down in the face of this terrorist threat to our homeland, our freedom, our security, and our democratic way of life."

The PATRIOT Act, which was hurriedly enacted in October of 2001, provides that sixteen of its provisions sunset at the end of 2005, unless extended.

William Moschella, the Assistant Attorney General in charge of the Department of Justice's (DOJ) Office of Legislative Affairs, spoke at an luncheon in the Capitol Building on June 30, 2005. He stated that the DOJ is currently negotiating regarding revisions to some sections of the PATRIOT Act. However, he would not state what those revisions might be.

The luncheon was sponsored by the Advisory Committee to the Congressional Internet Caucus. It was titled "The U.S. PATRIOT Act and E-Surveillance".

7/7. The U.S. Court of Appeals (5thCir) issued its opinion [13 pages in PDF] in Galiano v. Harrah's, a copyright case involving copyrightable subject matter. This case deals with the copyrightability of clothing designs. However, the Court of Appeals' analysis of what constitutes "artistic craftsmanship" and what constitutes "mechanical or utilitarian aspects" for the purposes of copyrightability of designs may be of interest beyond the clothing industry.

Jane Galiano is the owner of Gianna', Inc., a corporate clothing design and consulting business. Gianna's designed costumes for Harrah's Entertainment, Inc., for use in Harrah's gambling casinos. Gianna's and Harrah's did not reach a long term agreement. However, Harrah's used the designs provided to it by Gianna's.

Gianna's registered copyrights in its sketches of costumes provided to Harrah's. It then filed a complaint in U.S. District Court (EDLa) against Harrah's alleging copyright infringement. Harrah's counterclaimed for fraud on the Copyright Office.

The District Court granted summary judgment to Harrah's on the copyright infringement claim, and denied Gianna's motion for summary judgment on the fraud on the Copyright Office claim. The District Court also awarded Harrah's attorneys fees. The parties appealed and briefed all three issues.

The Court of Appeals affirmed the summary judgment on the infringement claim, with a detailed analysis of copyrightable subject matter.

17 U.S.C. § 102 provides, in part, that "Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories: ... (5) pictorial, graphic, and sculptural works ..."

17 U.S.C. § 101, the definitional section, provides, in part, that a "``Pictorial, graphic, and sculptural works´´ include two-dimensional and three-dimensional works of fine, graphic, and applied art, photographs, prints and art reproductions, maps, globes, charts, diagrams, models, and technical drawings, including architectural plans. Such works shall include works of artistic craftsmanship insofar as their form but not their mechanical or utilitarian aspects are concerned; the design of a useful article, as defined in this section, shall be considered a pictorial, graphic, or sculptural work only if, and only to the extent that, such design incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article."

The Court of Appeals dismissed the appeal of the District Court's denial of summary judgment on the fraud on the Copyright Office counterclaim, for lack of appellate jurisdiction.

This case is Jane Galliano and Gianna's, Inc. v. Harrah's Operating Company, Inc. and Harrah's Entertainment, Inc., U.S. Court of Appeals for the 5th Circuit, App. Ct. Nos. m 04-30521 and m 04-30806, appeals from the U.S. District Court for the Eastern District of Louisiana. Judge Jerry Smith wrote the opinion of the Court of Appeals, in which Judges DeMoss and Davis joined.

6/29. The U.S. Court of Appeals (FedCir) issued its opinion [35 pages in PDF] in Seachange v. C-COR, a patent infringement case involving video server technology.

Seachange International and C-COR, which was previously named nCUBE, compete in the digital video server market. Seachange is the assignee of U.S. Patent No. 5,862,312, titled "Loosely coupled mass storage computer cluster".

The abstract states that this patent discloses "A method and apparatus redundantly store data, in particular video data objects, in a distributed computer system having at least three processor systems, each processor system being connected in point to point two way channel interconnection with each other processor system. The data is stored in a redundant fashion both at the computer system level as well as the processor system level. Accordingly, the failure of a single processor does not adversely affect the integrity of the data. The computer system can also overlay a switching system connected in a ring fashion for providing a fault tolerance to the failure of a single connected processor system at the switch level. Accordingly, there results a fault tolerant data distribution system."

Seachange filed a complaint in U.S. District Court (DDel) against nCUBE alleging infringement of its patent. The District Court granted summary judgment to Seachange. The Court of Appeals affirmed in part, reversed in part, vacated in part, and remanded.

The Court of Appeals wrote that "Because the district court erred in interpreting ``network for data communications´´ and C-COR does not infringe as a matter of law, we reverse the judgment of infringement. Because we have construed the "network´´ limitation to be limited to point-to-point interconnections, we affirm the denial of C-COR’s motion for JMOL on inadequate written description. Because the district court correctly denied C-COR’s motion for JMOL on anticipation as to the Frey and Mendelsohn references, we affirm that ruling. For the reasons stated in this opinion, we vacate the denial of the JMOL motion as to anticipation by Gardner and remand the same to the district court for reconsideration. Because the district court erred in its interpretation of "distributed computer system" and because C-COR was prejudiced by the court’s failure to properly instruct the jury on the construction of the "distributed computer system" limitation, we reverse the district court’s denial of C-COR’s motion in the alternative for new trial and remand for further proceedings consistent with this opinion."

C-COR stated in a release that "The Federal Circuit Court decided as a matter of law that C-COR did not infringe SeaChange's patent. The District Court must now decide whether SeaChange's patent was ever valid in the first place."

This case is Seachange International, Inc. v. C-COR Inc., U.S. Court of Appeals for the Federal Circuit, Nos. 04-1375 and 04-1498, appeals from the U.S. District Court for the District of Delaware, D.C. No. 00-568-JJF. Judge Lynn wrote the opinion of the Court of Appeals, in which Judges Bryson and Gajarsa joined.

7/6. David Kornblau, the Securities and Exchange Commission's (SEC) Enforcement Division's Chief Litigation Counsel, will leave the SEC in August. He will become Head of Regulatory Affairs for Merrill Lynch in New York. See, SEC release.

7/7. The Federal Communications Commission (FCC) released a report [PDF] titled "High-Speed Services for Internet Access: Status as of December 31, 2004".

This report states that "Subscribership to high-speed services increased by 17% during the second half of 2004, to a total of 37.9 million lines (or wireless channels) in service." (Parentheses in original.) It further states that "High-speed ADSL lines in service increased by 21% during the second half of 2004, to 13.8 million lines. High-speed connections over coaxial cable systems (cable modem service) increased by 15%, to 21.4 million lines."

The report states the 4.6% of zip codes have no high speed service. 12.5% of zip codes have only one service provider. 16.3% of zip codes have two service providers. About 67% of zip codes of three or more service providers.

The FCC employs a minimal definition of "high speed". It includes lines and channels "delivering transmissions to the subscriber at a speed in excess of 200 kbps in at least one direction".

Kyle McSlarrow, P/CEO of the National Cable & Telecommunications Association (NCTA), stated in a release that "The findings in the FCC's report underscore the great return on the cable industry's $100 billion investment in building a nationwide broadband infrastructure. The report reaffirms our industry's commitment to rapid deployment of broadband services and to further providing consumers with a growing array of choices. It also validates the light regulatory touch applied by Congress and the FCC to broadband policy, which has and will continue to result in a vibrant and competitive broadband marketplace providing great value to American consumers."

On the other hand, Walter McCormick, P/CEO of the U.S. Telecom Association (USTA), stated in a release that the FCC's report "underscores the urgent need for Congress to update U.S. telecom laws". He also wrote that "this report provides a compelling portrait of the vigorous, technologically diverse competition that defines today's broadband marketplace. A majority of Americans now are able to choose among a growing array of satellite, wireless, fiber and powerline broadband solutions. In this environment, Chairman Martin said it best: `We need to place all broadband providers on equal footing … free of undue regulation that can stifle infrastructure investment.´" McCormick added that "Now, it's up to Congress to update U.S. telecom laws to encourage vigorous investment and head-to-head competition from all companies in order to speed the future faster."

The House will not meet on Monday, July 4, through Friday, July 8. The House will next meet at 2:00 PM on Monday, July 11. See, Republican Whip Notice.

The Senate will not meet on Monday, July 4, through Friday, July 8. See, Senate calendar.

10:30 AM - 12:00 NOON. The Heritage Foundation will host a panel discussion titled "Are Bloggers and Journalists Friends or Enemies?". The speakers will be Ed Morrissey (Captain’s Quarters Blog), Jim Hill (Washington Post Writers Group), and Mark Tapscott (Heritage). See, notice. Location: Heritage, 214 Massachusetts Ave., NE.

12:00 NOON - 2:00 PM. The Progress and Freedom Foundation (PFF) will host a panel discussion titled "MGM v. Grokster: What's Next?". The speakers will be Cary Sherman (President of the Recording Industry Association of America), Sarah Deutsch (General Counsel of Verizon), Gigi Sohn (President of Public Knowledge), James Burger (Dow Lohnes, who filed an amicus curiae brief on behalf of Intel in MGM v. Grokster), and Jim DeLong (PFF). See, notice and registration page. Lunch will be served. Location: Room 1537, Longworth Building, Capitol Hill.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its notice of second further proposed rulemaking regarding horizontal and vertical cable ownership limits. The FCC adopted this Second Further NPRM on May 13, 2005, and released it on May 17, 2005. This item is FCC 05-96 in MM Docket No. 92-264. See, notice in the Federal Register, June 8, 2005, Vol. 70, No. 109, at Pages 33679 - 33687.

Deadline to submit comments to the National Institute of Standards and Technology (NIST) regarding its Draft Special Publication 800-79 [49 pages in PDF], titled "Guidelines for the Certification and Accreditation of PIV Card Issuing Organizations". (PIV is Personal Identify Verification.)

The House will return from its Independence Day recess at 2:00 PM. See, Republican Whip Notice.

The Senate will return from its Independence Day recess. See, Senate calendar.

9:45 - 11:30 AM. The DC Bar Association will host a visit to and tour of the Copyright Office. The price to attend ranges from $15-$25. For more information, contact 202-626-3463. See, notice. Location: Copyright Office, Room 401, James Madison Memorial Building, First Street & Independence Avenue, SE.

10:00 AM. The Senate Commerce Committee will hold a hearing titled "Digital Television Transition -- Hearing I". Press contact: Melanie Alvord (Stevens) (202) 224-8456 or Melanie_Alvord at commerce dot senate dot gov, or Andy Davis (Inouye) at 202 224-4546 or Andy_Davis at commerce dot senate dot gov. See, notice. Location: Room 253, Russell Building.

1:30 - 4:30 PM. The Department of Homeland Security's (DHS) National Infrastructure Advisory Council (NIAC) will meet. Location: National Press Club, 529 14th St. NW, 13th Floor.

2:30 PM. The Senate Commerce Committee will hold a hearing titled "Digital Television Transition -- Hearing II". Press contact: Melanie Alvord (Stevens) (202) 224-8456 or Melanie_Alvord at commerce dot senate dot gov, or Andy Davis (Inouye) at 202 224-4546 or Andy_Davis at commerce dot senate dot gov. See, notice. Location: Room 253, Russell Building.

TIME? The State Department's International Telecommunication Advisory Committee's (ITAC) U.S. Study Group B will meet to prepare positions for the next meeting of the ITU-T Study Group 16. See, notice in the Federal Register, June 13, 2005, Vol. 70, No. 112, at Pages 34175 - 34176. Location: Communication Technologies, Inc., 14151 Newbrook Drive, Suite 400, Chantilly, VA.

Day one of a two day conference hosted by the National Institute of Standards and Technology's (NIST), Computer Security Division titled "Federal Computer Security Program Manager's Forum Annual Off-Site Meeting". See, notice. Location: Bethesda North Marriott Hotel and Conference Center, 5701 Marinelli Road, North Bethesda, MD.

Day two of a two day conference hosted by the National Institute of Standards and Technology's (NIST), Computer Security Division titled "Federal Computer Security Program Manager's Forum Annual Off-Site Meeting". See, notice. Location: Bethesda North Marriott Hotel and Conference Center, 5701 Marinelli Road, North Bethesda, MD.

6:00 - 8:30 PM. The Federal Communications Bar Association's (FCBA) Young Lawyers Committee will host an event titled "Happy Hour". For more information, contact Natalie Roisman at natalie dot roisman at fcc dot gov or 202 418-1655, or Jason Friedrich at jason dot friedrich at dbr dot com or 202-354-1340. Location: McCormick & Schmick's, 1652 K Street, NW.

8:30 AM - 5:00 PM. The National Institute of Standards and Technology's (NIST) Visiting Committee on Advanced Technology (VCAT) will hold a partially close meeting. The agenda includes presentations on science and technology priorities of the administration and research and development spending trends in the federal government. See, notice in the Federal Register, May 24, 2005, Vol. 70, No. 99, at Page 29721. Location: Employees Lounge, Administration Building, NIST, Gaithersburg, MD.

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

9:45 - 11:30 AM. The DC Bar Association will host a visit to and tour of the Copyright Office. The price to attend ranges from $15-$25. For more information, contact 202-626-3463. See, notice. Location: Copyright Office, Room 401, James Madison Memorial Building, First Street & Independence Avenue, SE.

10:00 AM - 4:15 PM. The Consumer Electronics Association (CEA) will host an event titled "IPTV Interface Discovery Group". See, notice. Location: Clarendon Ballroom, Arlington, VA.

10:00 AM - 12:00 NOON. The Department of State's (DOS) International Telecommunication Advisory Committee (ITAC) will meet to prepare for the Americas Regional Preparatory Meeting for the World Telecommunication Development Conference (WTDC-06) in Lima, Peru, from August 9-11, 2005. See, notice in the Federal Register, June 22, 2005, Vol. 70, No. 119, Page 36224. Location: DOS, Room 2533A.

12:30 PM. The Federal Communications Bar Association's (FCBA) Mass Media Practice Committee will host a brown bag lunch. The speaker will be Kris Monteith of the Federal Communications Commission's (FCC) Enforcement Bureau. For more information, Ann Bobeck at ABobeck at nab dot org. Location: National Association of Broadcasters (NAB), 1771 N Street, NW.

1:30 - 3:30 PM. The Federal Communications Commission's (FCC) WRC-07 Advisory Committee's Informal Working Group 2 (Satellite Services and HAPS) will meet. See, notice [PDF]. Location: Leventhal Senter & Lerman, 2000 K Street, NW, 7th Floor Conference Room.

TIME? The American Intellectual Property Law Association's (AIPLA) Board or Directors will meet. Location: Arlington, VA.

12:00 NOON - 2:00 PM. The Progress and Freedom Foundation (PFF) will host a panel discussion titled "Brand X v. FCC: What's Next?". See, notice and registration page. Lunch will be served. Location: Room 1537, Longworth Building, Capitol Hill.

Deadline to submit comments to the Antitrust Modernization Commission (AMC) in response to the AMC's request for public comments on numerous issues. First, the AMC seeks comments on enforcement institutions, including dual federal merger enforcement, differential merger enforcement standards, the role of states in enforcing federal antitrust laws outside of the merger area, and the allocation of merger enforcement among states, private plaintiffs. Second, the AMC seeks comments on exclusionary conduct. Third, the AMC seeks comments on immunities, exemptions, and the state action doctrine. Fourth, the AMC seeks comments on merger enforcement, including federal antitrust merger enforcement policy generally, transparency in federal agency merger review, efficiencies in merger analysis, the Hart-Scott-Rodino pre-merger review process. Fifth, the AMC seeks comments on several new economy issues, including antitrust analysis of industries in which innovation, intellectual property, and technological change are central features, and on the reports on patent law by the National Academies and the Federal Trade Commission. Finally, the AMC seeks comments on the role of antitrust in regulated industries. See, notice in the Federal Register: May 19, 2005, Vol. 70, No. 96, at Pages 28902-28907.

Deadline to submit initial comments to the Federal Communications Commission (FCC) regarding a petition for a declaratory ruling that certain provisions of the California Consumer Legal Remedies Act (CLRA), as applied to interstate telephone calls, are not preempted by the Telephone Consumer Protection Act (TCPA). See, notice in the Federal Register, June 15, 2005, Vol. 70, No. 114, at Pages 34725 - 34726. This proceeding is CG Docket No. 02-278.

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