8/26. The U.S. Court of Appeals (FedCir) issued its divided opinion [36 pages in PDF] in National Federation of the Blind v. FTC, upholding the FTC's rules that regulate abusive practices by professional fundraisers at for profit companies who solicit donations on behalf of charities.

The Telemarketing Consumer Fraud and Abuse Prevention Act, as amended, instructs the Federal Trade Commission (FTC) to promulgate rules prohibiting deceptive and other abusive telemarketing acts or practices. The Act defines "telemarketing" to cover charitable solicitations. However, the Act does not give the FTC authority to regulate charitable entities. The FTC's Telemarketing Sales Rule (TSR) regulates deceptive and abuse telemarketing by commercial entities that solicit on behalf of charities. Telemarketing activities conducted by charities remain unregulated.

The National Federal of the Blind and Special Olympics Maryland, Inc., filed a complaint in U.S. District Court (D-Md) against the FTC seeking declaratory relief that some of the TSR's provisions that apply to entities that solicit on behalf of charities are beyond the FTC's statutory authority and in violation of the First and Fourteenth Amendments.

The plaintiffs challenge several of the TSR's provisions, including the prohibition on calls before 8:00 AM of after 9:00 PM, the prohibition on abandoned call, and the requirement that telemarketers transmit their name and phone number to caller identification services.

The District Court granted summary judgment to the FTC. See, opinion reported at 303 F. Supp. 2d 707. This appeal followed.

A three judge panel of the Court of Appeals affirmed, in a split opinion. Judge Wilkinson wrote for the majority, while Judge Duncan dissented.

Wilkinson concluded that "Our Constitution does not prevent the democratic process from affording the American family some small respite and sense of surcease. We hold, therefore, that the FTC was authorized by Congress to promulgate the TSR, and we find that the rule is consistent with the First Amendment. Since it is "narrowly drawn" to serve the "strong subordinating interest" of protecting residential peace, the TSR embodies a proper compromise between the important speech interests of charities and the equally important need to protect the public from excessive intrusions into the home."

This case is National Federation of the Blind, et al. v. FTC, U.S. Court of Appeals for the 4th Circuit, App. Ct. No. 04-1378, an appeal from the U.S. District Court for the District of Maryland, at Baltimore, D.C. No. CA-03-963-JFM, Judge Frederick Motz presiding. Judge Harvey Wilkinson wrote the opinion of the Court of Appeals, in which Judge Traxler joined. Judge Duncan wrote a dissent.

8/26. The U.S. Court of Appeals (11thCir) issued its opinion [PDF] in Kehoe v. Fidelity Federal Bank and Trust, holding that a plaintiff does not need to prove actual damages to recover liquidated damages for a violation of the Driver's Privacy Protection Act (DPPA), which is codified at 18 U.S.C. § 2721, et seq.

The Congress enacted the DPPA in 1994, and amended it in 1999. The 1999 amendment prohibited a state department of motor vehicles from disclosing an individual's driver's license information without express permission from the individual.

§ 2724(a) provides that "A person who knowingly obtains, discloses or uses personal information, from a motor vehicle record, for a purpose not permitted under this chapter shall be liable to the individual to whom the information pertains, who may bring a civil action in a United States district court." § 2724(b) provides that "The court may award -- (1) actual damages, but not less than liquidated damages in the amount of $2,500; (2) punitive damages upon proof of willful or reckless disregard of the law; ..."

After the effective date of the amendment, the state of Florida continued to sell to Fidelity Federal Bank and Trust the names and addresses of individuals who had registered new motor vehicles or used motor vehicles less than three years old within the preceding month in Palm Beach, Martin, and Broward Counties. The bank used this information to send auto loan refinancing solicitations to car owners. It obtained car ownership information on about 565,600 car owners.

James Kehoe is the named plaintiff in a class action lawsuit against the bank. Class actions lawyers filed a complaint in the name of Kehoe in the U.S. District Court (SDFl) against Fidelity alleging violation of the DPPA. The complaint does not allege that any member of the class has been injured by the disclosure of the information.

The class action lawyers seek statutory damages of $2,500 per violation, and other relief. That is, they seek about $1.4 Billion, plus punitive damages.

The District Court granted summary judgment to the bank on the grounds that the complaint did not plead actual damages, and that the statute requires actual damages before an plaintiff can obtain statutory damages.

The Court of Appeals reversed. It held, as a matter of statutory construction, that "A plaintiff need not prove a measure of actual damages to recover liquidated damages under the DPPA, and certainly need not prove actual damages to recover the other types of remedies listed in § 2724(b)", which include punitive damages, costs, and attorneys fees.

However, it is unlikely that the District Court, on remand, will award $1.4 Billion. The remedies section uses the permissive word "may", rather than the mandatory "shall". The Court of Appeals noted too that the word may "implies a degree of discretion" and that "Thus, the district court, in its discretion, may fashion what it deems to be an appropriate award."

This case is James Kehoe v. Fidelity Federal Bank and Trust, U.S. Court of Appeals for the 11th Circuit, App. Ct. No. 04-13306, an appeal from the U.S. District Court for the Southern District of Florida, D.C. No. 03-80593-CV-DTKH. Judge Wilson wrote the opinion of the Court of Appeals, in which Judges Dubina and Coogler joined.

8/23. John Miller was named Assistant Director for the Office of Public Affairs at the Federal Bureau of Investigation (FBI). He replaces Cassandra Chandler, who has been named Special Agent in Charge of the FBI’s Norfolk Virginia Division. See, FBI release. Miller has a background in both law enforcement and journalism. He was previously Chief of the Los Angeles Police Department’s Counter-Terrorism and Criminal Intelligence Bureau. Before that, he worked for ABC News covering terrorism. Before that, he worked for the New York City Police Department. And before that, he worked for broadcast media in New York City. In 1998 he interviewed Osama bin Laden.

8/26. The Federal Bureau of Investigation (FBI) announced that two men have been arrested, in Morocco and Turkey, in connection with the creation and distribution of computers worms known as Mytob and Zotob. The FBI stated in a release that "With the help of Moroccan authorities, Ministry of Interior Turkish National Police , and valuable assistance from Microsoft Corporation, these individuals were arrested yesterday without incident.  Arrested in Morocco was Farid Essebar, 18, a Moroccan national born in Russia who went by the screen moniker ``Diabl0.´´ Arrested in Turkey was Atilla Ekici, aka ``Coder,´´ a 21-year old resident of Turkey. Both individuals will be subject to local prosecutions." See also, Microsoft release and Zotob web page.

8/26. The Department of Commerce's National Technical Information Service (NTIS) published a notice in the Federal Register soliciting recommendations regarding candidates to be members of the NTIS Advisory Board. See, Federal Register, August 26, 2005, Vol. 70, No. 165, at Page 50303.

8/26. The U.S. Patent and Trademark Office (USPTO) announced in a release that its Trademark Electronic Search System (TESS) "now features a new Trademark Official Gazette (TMOG) ``search line.´´ By entering the publication date of a particular TMOG into the new search line, users can generate a list of all marks published for opposition in that TMOG, or a list of all new registrations published in that TMOG."

The House will not meet on Monday, August 1 through Monday, September 5. See, House calendar and Republican Whip Notice.

The Senate will not meet on Monday, August 1 through Monday, September 5. See, Senate calendar.

The Supreme Court is between terms. The opening conference of its October 2005 Term will be held on September 26, 2005.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Public Notice [PDF] requesting comments on Continental Airlines' Petition for a Declaratory Ruling regarding the state Massachusetts' attempt to regulate Wi-Fi hotspots. Continental has installed a Wi-Fi hotspot for internet access and telecommunications at its frequent flyer lounge at Boston Logan Airport (Logan). An issue is whether the demands of the Massachusetts Port Authority for removal of the antenna are prohibited under the FCC's Over the Air Reception Devices (OTARD) rules. This public notice is DA 05-2213 in ET Docket No. 05-247.

10:00 AM - 12:00 NOON. The Department of State's (DOS) International Telecommunication Advisory Committee (ITAC) will meet to prepare for the ITU-D's meetings of Study Group 1 and Study Group 2, which will take place in September, Geneva, on September 6-9 and 12-15, 2005. See, notice in the Federal Register, July 8, 2005, Vol. 70, No. 130, at Pages 39544 - 39545. Location: Room 2533A, State Department.

1:30 - 3:00 PM. The Federal Communications Commission's (FCC) Informal Working Group 2: Satellite Services and HAPS will meet. See, FCC notice [PDF]. Location: Leventhal Senter & Lerman, 7th Floor Conference Room, 2000 K Street, NW.

Effective date of the Federal Communications Commission's (FCC) VOIP customer lockout order. See, the order contained in the FCC's document titled "Public Notice' [PDF], numbered DA 05-2085, and released on July 26, 2005. It requires, among other things, that every interconnected voice over internet protocol (VOIP) service provider must send every one of its subscribers an FCC mandated statement regarding E911, and that every interconnected VOIP service provider must send to every one of its customers the FCC mandated VOIP warning stickers. This order further requires that every interconnected VOIP service provider obtain acknowledgement from every one of its subscribers, and that it "disconnect, no later than August 30, 2005, all subscribers from whom it has not received such acknowledgements".

10:30 AM. The Heritage Foundation will host a panel discussion titled "U.S. China Ties". The speakers will be Randy Schriver (Armitage International), Perry Link (Princeton University), John Tkacik (Heritage), and Harvey Feldman (Heritage). PR Chinese President Hu Jintao will begin a visit to the U.S. on September 6. See, notice. Location: Heritage, 214 Massachusetts Ave., NE.

Deadline for the public to submit written comments to the House Ways and Means Committee regarding HR 3376, the "Tax Technical Corrections Act of 2005". See, notice.

Compliance date of the Federal Communications Commission (FCC) final rule that extends and modifies the FCC Form 477 local competition and broadband data gathering program. See, notice in the Federal Register, December 29, 2004, Vol. 69, No. 249, at Pages 77912 - 77938. The FCC's report and order is FCC 04-266 in WC Docket No. 04-141.

The mandatory electronic filing via the Cable Operations and Licensing System (COALS) for FCC Forms 321, Aeronautical Frequency Notification, will commence. See, FCC Public Notice DA 05-270, and notice in the Federal Register, February 23, 2005, Vol. 70, No. 35, at Page 8811.

Deadline to submit comments to the Federal Communications Commission (FCC) in response to its public notice [37 pages in PDF] regarding its plan to review rules adopted by the FCC in 1993, 1994 and 1995, pursuant to the Regulatory Flexibility Act of 1980, which is codified at 5 U.S.C. § 610. This public notice lists the rules to be reviewed. This public notice, which is dated May 31, 2005, is numbered DA-05-1524. See also, notice in the Federal Register, June 8, 2005, Vol. 70, No. 109, at Pages 33416 - 33426.

Deadline to submit to the U.S. Trade Representative (USTR) requests to testify at the USTR's September 14, 2005 public hearing on the People's Republic of China's compliance with its World Trade Organization (WTO) commitments. See, notice in the Federal Register, August 3, 2005, Vol. 70, No. 148, at Pages 44714 - 44715.

EXTENDED FROM AUGUST 22. Extended deadline to submit initial comments to the Copyright Office regarding its first report to the Congress required by the Satellite Home Viewer Extension and Reauthorization Act of 2004. See, original notice in the Federal Register, July 7, 2005, Vol. 70, No. 129, at Pages 39343 - 39345. See also, notice extending deadlines in the Federal Register, August 15, 2005, Vol. 70, No. 156, at Page 47857.

Deadline for the public to submit written comments to the House Ways and Means Committee's Subcommittee on Trade regarding technical corrections to U.S. trade laws and miscellaneous duty suspension bills. See, notice.

The National Gallery of Art (NGA) will begin an exhibition technological advances in the storage and transfer of information in 15th Century. It is titled "The Origins of European Printmaking: 15th Century Woodcuts and Their Public". See, NGA notice and notice in the Federal Register, July 20, 2005, Vol. 70, No. 138, at Page 41808. This exhibition will run from September 4 through November 27, 2005. Location: NGA, between the Mall and Constitution Ave., NW, and between 3rd and 7th Streets.

Labor Day.

The Federal Communications Commission (FCC) and other federal offices will be closed. See, Office of Personnel Management's (OPM) list of federal holidays.

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