12/8. Sen. Arlen Specter (R-PA), the Chairman of the Senate Judiciary Committee, and Rep. James Sensenbrenner (R-WI), the Chairman of the House Judiciary Committee, both announced that House and Senate conferees have completed work on the conference report on HR 3199, the "USA PATRIOT Improvement and Reauthorization Act of 2005". See, full text of the conference report [219 pages in PDF].

Rep. Sensenbrenner filed the conference report (House Report 109-333) in the House on Thursday, December 8. Sen. Specter held a news conference at 11:00 AM in the Capitol Building.

Sen. Specter said that "it has been a very very difficult conference", but "we hammered out what I think is a good bill". He predicted that both the House and Senate would approve the conference report next week.

However, a group of Senators announced their opposition to the conference report on December 8, and predicted that the Senate will not approve it. See, following story titled "Senate Opponents Say Conference Report Lacks Support in Senate".

The House approved its version of HR 3199 on July 21, 2005. See, story titled "House Approves PATRIOT Act Extension Bill" in TLJ Daily E-Mail Alert No. 1,180, July 22, 2005. The Senate approved its bill on July 29, 2005. This required the appointment of a conference committee to produce a common bill. The just released conference report is the product of this committee.

USA PATRIOT is an acronym. The Act was given an long and awkward title for the purpose of generating this acronym. The full title is "Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001".

FISA is also an acronym. It is the "Foreign Intelligence Surveillance Act of 1978". Although, it now encompasses more than "foreign intelligence". Many of the provisions of the PATRIOT Act, and the conference report, amend the FISA.

The 107th Congress enacted the PATRIOT Act quickly after the terrorist attacks of September 11, 2001. It was HR 3162. It became Public Law 107-56 on October 26, 2001. The bill was approved by the House on October 24, 2001 by a vote of 357-66. See, Roll Call No. 398. Three Republicans and sixty-two Democrats voted against the bill.

Much of Title II of the PATRIOT Act pertains to electronic surveillance affecting new technologies. § 224 of the PATRIOT Act provides that many of the provisions of Title II sunset at the end of 2005, unless extended. Both the House and Senate versions of the bill approved last summer permanently extended almost all of the sunsetted provisions. They focused on sunsets for, and modifications of, just a few of the sunsetted provisions, including § 215, regarding access to business records, including library records, under the FISA.

The key phrase of the conference report is "Section 224 of the USA PATRIOT Act is repealed."

The technology and communications related sections of the PATRIOT Act that are now made permanent include the following:

§ 207, regarding delayed notice of search warrants.
§ 209, which is mistitled "Seizure of voice-mail messages pursuant to warrants", but is actually broader.
§ 212, titled "Emergency disclosure of electronic communications to protect life and limb".
§ 214, titled "Pen register and trap and trace authority under FISA".
§ 217, titled "Interception of computer trespasser communications".
§ 220, titled "Nationwide service of search warrants for electronic evidence".

Although, the conference report does contain language that modifies the surveillance and seizure powers addressed in §§ 207, 212, 213, 214, and 215.

The conference report contains some extensive revisions to the statutory provisions addressed by §§ 206 (roving surveillance authority under the FISA) and § 215 (access to business records under FISA). These issues were the most controversial for the members of the conference committee.

The conference report maintains a qualified four year sunset for §§ 206 and 215.

With respect to § 213, the conference report provides for delayed notice of search warrants (referred to by some as sneak and peak) for 30 days. The House bill had provided for a 180 day delay. The Senate bill had provided for a 7 day delay. (§ 213, titled "Authority for delaying notice of the execution of a warrant", is not included in the sunset provisions of § 224, so there was no need to extend it.)

12/8. When Sen. Arlen Specter (R-PA) held his news conference to announce the conference report on the PATRIOT Act extension bill, staff for other Senators distributed statements expressing opposition to the conference report.

Sen. Russ Feingold (D-WI) wrote in a statement that "I will do everything I can, including a filibuster, to stop this Patriot Act conference report, which does not include adequate safeguards to protect our constitutional freedoms."

Sen. Feingold (at left) and five other Senators wrote in another statement that "We are gravely disappointed that the conference committee made so few changes to the Patriot Act reauthorization package that was circulated before the Thanksgiving recess. As we said then, we cannot support a conference report that does not contain modest but critical improvements, similar to those in the Senate-passed bill, to the most controversial provisions of the Patriot Act. We indicated before Thanksgiving that we would oppose a conference report like the one filed in the House today, and we believe many of our colleagues will join us."

The six Senators are Sen. Feingold, Sen. Dick Durbin (D-IL), Sen. Larry Craig (R-ID), Sen. John Sununu (R-NH), Sen. Ken Salazar (D-CO), and Sen. Lisa Murkowski (R-AK).

The statement continued that "The sunsets this year provide our best opportunity to make the meaningful changes to the Patriot Act that the American public has demanded. We believe that this conference report will not be able to get through the Senate, while the Senate bill would easily pass the House if its leadership would bring it to a vote. We call on our House colleagues to reject this conference report, and to take up and pass the Senate compromise bill. We still can -- and must -- make sure that our laws give law enforcement agents the tools they need while providing safeguards to protect the constitutional rights of all Americans."

12/8. Supporters and opponents of the conference report on HR 3199, the "USA PATRIOT Improvement and Reauthorization Act of 2005", offered comments on the report. See, full text of the conference report [219 pages in PDF].

Attorney General Alberto Gonzales (at right) stated in a release that "I applaud the House and the Senate conferees for coming together to produce a comprehensive USA PATRIOT Reauthorization bill. The Department strongly supports the bill, which reauthorizes all of the sunsetting provisions of the USA PATRIOT Act, creates a new national security division at the Department of Justice, helps clarify certain existing authorities, provides additional protections against the threat of attacks on mass transportation systems and at our seaports, and grants us additional tools to protect Americans from terrorism. I urge both houses of Congress to act promptly to pass this critical piece of legislation."

Jim Dempsey of the Center for Democracy and Technology (CDT) stated in a release that "The conference report as it stands today is not an acceptable compromise. Congress is missing an opportunity to preserve the PATRIOT Act's investigative tools while protecting privacy with some modest checks and balances."

He continued that "CDT supported the Senate renewal bill as the least that should have been done to move the pendulum back to the center. The reported deal swings too far in the direction of the weaker House bill. It still allows the government to get private data on people who are not suspected of having any connection to terrorism. And the conference report expands the impact of National Security Letters, which are issued with no judicial review, by making it easier to enforce them and harder for recipients to resist them."

The CDT release adds that the "Conference Report does not require the government to show any connection, however tangential, between the records it seeks-including personal records like medical and insurance records-and a suspected terrorist. The government can still request entire databases, with no specific focus on individuals".

Caroline Fredrickson, of the ACLU, stated in a release that "This sham compromise agreement fails to address the primary substantive concern raised by millions of Americans, as well as civil liberties, privacy and business organizations and lawmakers from both sides of the aisle and in both chambers. It is unfortunate that some would cave in to political pressure from the White House and reject common sense protections that were included in the unanimously supported Senate bill."

She added that "If adopted, this reauthorization bill would continue to permit the FBI to access a huge array of extremely private records of innocent Americans without having to demonstrate a connection between the records sought and a suspected foreign terrorist or terrorist organization. A shorter sunset on a few controversial powers will not protect our privacy and does not redress in any way the FBI’s ability to use National Security Letters to pry into people’s private affairs, with no judicial oversight."

12/8. The Korean Fair Trade Commission (KFTC) issued a document [7 pages in PDF] titled "The findings of the Microsoft case", that finds that Microsoft's products violate Korean antitrust law, and orders Microsoft to redesign its software, and give Korea about $33 Million.

This document, in English translation, released on December 6, states that the KFTC decided "to order Microsoft Corporation and Microsoft Korea, inter alia, to unbundle the tied product, including Windows Media Player, and to impose surcharge of approximately 33 billion won (approximately 31 million US dollars) for violation of the Monopoly Regulation and Fair Trade Act (hereinafter the ``MRFTA´´), including abuse of market dominant position." (Parentheses in original.)

This document states that the "KFTC found the following practices by Microsoft to be violative of the MRFTA. First, tying Windows Media Service to the Windows Server Operating System, where Microsoft has market dominance. Second, tying Windows Media Player to the Windows PC Operating System, where Microsoft has monopoly power. Third, tying instant messaging programme to the Windows PC Operating System, where Microsoft has monopoly power."

This KFTC document orders Microsoft to "unbundle Windows Media Service from Windows Server Operating System, with 180 days after the decision."

It also orders Microsoft to "offer two versions of Windows PC Operating System, within 180 days after the decision."

It adds that "One version will be stripped of Windows Media Player and instant messenger. Another version will be newly installed with ``Media Player Centre´´ and ``Messenger Centre´´ that will contain links to web-pages that allow consumers to download competing media players and instant messengers, so that competing softwares can be equally installed into Windows PC Operating System."

It also states that "for Windows PC Operating Systems already sold and currently in use by consumers at the time of decision, Microsoft is required to provide users with ``Media Player Centre´´ and ``Messenger Centre´´ through CDs or internet updates."

Microsoft issued a release in which it stated that "We disagree with the Commission's decision and strongly believe that Microsoft has operated within Korean law."

Microsoft added that "We intend to appeal this decision because it is inconsistent with Korean law. Nevertheless, we will continue developing products for Korean consumers in a way that complies with all laws and is pro-competitive. Microsoft has long felt that Korea is an important center of innovation for our industry. We remain committed to Korea and look forward to continuing to serve the interests of Korean consumers as well as the rest of the Korean information technology industry."

The U.S. Department of Justice's (DOJ) Antitrust Division criticized this action by the KFTC, just as it has often criticized the EU for taking a similar action against Microsoft in 2004.

Bruce McDonald, a Deputy Assistant Attorney General in the Antitrust Division, stated in a December 7 release that "The Antitrust Division believes that Korea's remedy goes beyond what is necessary or appropriate to protect consumers, as it requires the removal of products that consumers may prefer. The Division continues to believe that imposing 'code removal' remedies that strip out functionality can ultimately harm innovation and the consumers that benefit from it."

McDonald stated that "Sound antitrust policy should protect competition, not competitors, and must avoid chilling innovation and competition even by 'dominant' companies. Furthermore, we believe that regulators should avoid substituting their judgment for the market's by determining what products are made available to consumers."

He continued that "The European Commission adopted a similar approach in its challenge to Microsoft's bundling Windows Media Player. Since then, demand in Europe for the version of the operating system with the media player code removed has been lackluster, suggesting limited effect on competition from the type of unbundling remedy the Korean Fair Trade Commission is pursuing."

"Addressing Microsoft's exclusionary conduct, the United States' final judgment provides clear and effective protection for competition and consumers. Microsoft is prohibited from preventing computer manufacturers and end users from choosing alternatives to software like Windows Media Player and Windows Messenger. The United States continues to be active in its enforcement of Microsoft's compliance with the judgment, and this work has resulted in substantial changes to Microsoft's business practices", said McDonald.

The US and the EU, and now the US and Korea, have taken different approaches to Microsoft in particular, and single firm conduct in general. See, for example, September 10, 2004 speech in Tokyo, Japan, by former Assistant Attorney General Hewitt Pate titled "Securing the Benefits of Global Competition". See also, story titled "Pate Addresses US Competition Law And Differences With EU" in TLJ Daily E-Mail Alert No. 975, September 13, 2004.

The Antitrust Division and the Federal Trade Commission (FTC) will hold hearings on single firm conduct early next year. See, story titled "Antitrust Division and FTC to Hold Hearings on Single Firm Conduct" in TLJ Daily E-Mail Alert No. 1,262, November 30, 2005.

12/7. The U.S. Court of Appeals (8thCir) issued its opinion [19 pages in PDF] in Fraternal Order of Police v. Stenehjem, a challenge to a state law restricting telemarketing.

North Dakota enacted a statute that prohibits certain telephone solicitations of North Dakota residents who register with the state's do not call list. The statute exempts telephone solicitations made by charitable organizations if "the telephone call is made by a volunteer or employee of the charitable organization" and the caller makes specified disclosures. That is, it provides no exemption for professional fundraising solicitors. Professional telephonists are permitted to make calls that advocate, as opposed to seeking money.

The plaintiffs are organizations that hire professional fundraising solicitors. The defendant, Wayne Stenehjem, is the Attorney General of the state of North Dakota.

The plaintiffs filed a complaint in U.S. District Court (DND) against Stenehjem in his official capacity challenging the statute under the First Amendment. The District Court held that a part of the statute is a content based restraint of protected speech, that it is entitled to review under a strict scrutiny standard, and that the regulation is impermissible. This appeal followed.

The Court of Appeals reversed. It held that the regulation is content neutral. It explained that "First, North Dakota has not distinguished between professional and in-house charitable solicitors because of any disagreement with the message that would be conveyed, for the message would be identical regardless of who conveyed it. Second, the regulation can be justified without reference to the content of the regulated speech, for North Dakota’s interest is in protecting residential privacy." The Court added that since "solicitation may reasonably be viewed as more invasive than advocacy, we conclude that the Act is a content-neutral regulation."

Next, since the Court held that the restraint is not content based, it held that the statute is not subject to strict scrutiny. Rather it is subject to lower standard set by the 8th Circuit in 2001 in Fed’n of the Blind of Arkansas, Inc. v. Pryor, 258 F.3d 851. The Court recited this standard: "(a) whether the State had a sufficient or ``legitimate´´ interest; (b) whether the interest identified was ``significantly furthered´´ by a narrowly tailored regulation; and (c) whether the regulation substantially limited charitable solicitations."

The Court reasoned that the statute satisfies this three part test. First, it wrote that residential privacy is a significant government interest. Second, it wrote that the statute is narrowly tailored. Third, it wrote that the statute does not substantially limit charitable solicitations. Funds may still be solicited by employees and volunteers of charities, and anyone may solicit persons not on the do not call list.

Judge Wollman wrote the opinion of the Court of Appeals, in which Judge Holmes joined. Judge Heaney wrote a short dissent. He stated that the statute is not narrowly tailored.

This case is Fraternal Order of Police, North Dakota State Lodge, et al. v. Wayne Stenehjem, U.S. Court of Appeals for the 8th Circuit, App. Ct. Nos. 03-3848, 04-1619 and No. 04-1620, appeals from the U.S. District Court for the District of North Dakota.

12/8. Sen. Arlen Specter (R-PA), the Chairman of the Senate Judiciary Committee (SJC), held a news conference to discuss and answer questions on the conference report HR 3199, the "USA PATRIOT Improvement and Reauthorization Act of 2005". He also used the occasion to summarize the near term schedule of the SJC.

Sen. Specter (at right) stated that members have been occupied with negotiating the conference report. He predicted that the Senate will approve the conference report next week.

He said that next, in early January, the SJC will hold hearings on the nomination of Judge Sam Alito to be a Justice of the Supreme Court. He said that next the SJC will tackle asbestos legislation. And finally, it will take up comprehensive immigration reform.

He said nothing about patent reform legislation.

The House will next meet at 12:00 PM on Monday, December 12.

The Senate will next meet at 2:00 PM on Monday, December 12, 2005.

RESCHEDULED FROM DECEMBER 15. 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). December 9 is Commissioner Kathleen Abernathy's last day at the FCC.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Semitool v. Dynamic Micro Devices, No. 05- 1299. Location: Courtroom 201, 717 Madison Place, NW.

11:00 AM - 12:00 NOON. The Advisory Committee for the 2007 World Radiocommunication Conference will meet. See, notice and agenda [PDF] and notice in the Federal Register, October 19, 2005, Vol. 70, No. 201, at Pages 60840 - 60841. Location: FCC, Commission Meeting Room, TW-C305, 445 12th Street, SW.

Day four of a four day conference titled "United States IPv6 Summit 2005". Gerard Alphonse (President of IEEE-USA) will speak at 8:30 AM. Peter Freeman (National Science Foundation) will speak at 9:00 AM. Hiroaki Kimura (Ministry of Internal Affairs and Communications, Government of Japan) and Hideyuki Oku (National Institute of Information and Communications Technology) will speak on "IPv6 Progress in Japan" at 9:30 AM. See, conference web site. Location: Hyatt Regency, Reston, Virginia.

Deadline to submit initial comments to the Office of the U.S. Trade Representative (USTR) regarding the operation, effectiveness, and implementation of and compliance with (1) the World Trade Organization (WTO) agreements affecting market opportunities for telecommunications products and services of the U.S., (2) the telecommunications provisions of the North American Free Trade Agreement (NAFTA), (3) the U.S. free trade agreements (FTAs) with Chile, Singapore, and Australia, and (4) any other FTAs coming into effect by January 1, 2006. See, notice in the Federal Register, November 16, 2005, Vol. 70, No. 220, at Pages 69621 - 69622.

Deadline for the U.S. Trade Representative (USTR) to submit to the Congress is annual report on the People's Republic of China's compliance with its World Trade Organization (WTO) commitments. See, Section 421 of the U.S.-China Relations Act of 2000, Public Law No. 106-286).

The House will meet at 12:00 NOON.

The Senate will return from its Thanksgiving recess at 2:00 PM.

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in EchoStar Satellite v. FCC, 04-1304. The proceeding pertains to an order of the Federal Communications Commission (FCC) adopting rules implementing the Satellite Home Viewer Extension and Reauthorization Act of 2004, which is now Public Law No. 108-447. See, brief [PDF] of the FCC. Judges Tatel, Garland and Griffith will preside. Location: Prettyman Courthouse, 333 Constitution Ave., NW.

10:00 AM. The Senate Commerce Committee (SCC) will hold another hearing on decency. Jack Valenti (former head of the MPAA) and Kyle McSlarrow (head of the NCTA) will testify. Press contact: Melanie Alvord (Stevens) at 202 224-8456, Aaron Saunders (Stevens) at 202 224-3991, or Andy Davis (Inouye) at 202 224-4546. Location: Room 562, Dirksen Building.

12:15 PM. The Federal Communications Bar Association's (FCBA) Mass Media Practice Committee will host a brown bag lunch titled "Meet the Trade Press". For more information, contact Ann Bobeck at abobeck at nab dot org. Location: National Association of Broadcasters (NAB), 1771 N St. NW.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to the notice of proposed rulemaking (NPRM) portion of the Order and FNPRM that provides that facilities based broadband service providers and interconnected VOIP providers are subject to requirements under the 1994 Communications Assistance for Law Enforcement Act (CALEA). See, public notice [2 pages in PDF] and notice in the Federal Register, October 13, 2005, Vol. 70, No. 197, at Pages 59704 - 59710. The FCC adopted, but did not release, this item at its August 5, 2005, meeting. See, story titled "FCC Amends CALEA Statute" in TLJ Daily E-Mail Alert No. 1,191, August 9, 2005. The FCC released the text [59 pages in PDF] of this item on September 23, 2005. It is FCC 05-153 in ET Docket No. 04-295 and RM-10865.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to the notice of proposed rulemaking (NPRM) regarding the the specific relocation procedures applicable to Broadband Radio Service (BRS) operations in the 2150-2160/62 MHz band, which the FCC previously decided will be relocated to the newly restructured 2495-2690 MHz band. The FCC also seeks comment on the specific relocation procedures applicable to Fixed Microwave Service (FS) operations in the 2160-2175 MHz band. This NPRM is FCC 05-172 in ET Docket No. 00-258. See, notice in the Federal Register, October 26, 2005, Vol. 70, No. 206, at Pages 61752 - 61762.

Deadline to submit initial comments to the Federal Communications Commission (FCC) regarding the petition for declaratory ruling (DR) filed by Grande Communications that seeks a DR regarding the treatment of traffic terminated through Grande to end users of interconnected local exchange carriers (LECs), in circumstances where customers of Grande have certified that the traffic originated in Internet protocol (IP) format. See, notice in the Federal Register, November 2, 2005, Vol. 70, No. 211, at Pages 66411 - 66412. See also, story titled "FCC Sets Comment Deadlines for DR Petition on IP Originated VOIP Traffic and Intercarrier Compensation" in TLJ Daily E-Mail Alert No. 1,246, November 3, 2005. This proceeding is WC Docket No. 05-283.

10:00 AM. The Senate Commerce Committee (SCC) will hold a hearing on the nominations of Deborah Tate and Michael Copps to be members of the Federal Communications Commission (FCC). Press contact: Melanie Alvord (Stevens) at 202 224-8456, Aaron Saunders (Stevens) at 202 224-3991, or Andy Davis (Inouye) at 202 224-4546. The hearing will be webcast by the SCC. See, notice. Location: Room 106, Dirsksen Building.

12:15 PM. The Federal Communications Bar Association's (FCBA) Legislation and IP-Based Communications Practice Committees will host a brown bag lunch titled "Legislative Reform Affecting IP-Based Services". RSVP to Wendy Parish at wendy at fcba dot org. Location: Verizon Wireless, 1300 Eye Street, NW, Suite 400 West.

1:00 PM. The House Commerce Committee's (HCC) Subcommittee on Oversight and Investigations will hold a hearing titled "Safety of Imported Pharmaceuticals: Strengthening Efforts to Combat the Sales of Controlled Substances Over the Internet". The hearing will be webcast by the HCC. Location: Room 2123, Rayburn Building.

2:30 PM. The Senate Commerce Committee (SCC) will hold a business meeting. Press contact: Melanie Alvord (Stevens) at 202 224-8456, Aaron Saunders (Stevens) at 202 224-3991, or Andy Davis (Inouye) at 202 224-4546. Location: Room 106, Dirsksen Building.

6:00 - 9:15 PM. The DC Bar Association will host a continuing legal education (CLE) seminar titled "2005 Intellectual Property Law Review Series, Part 1: Copyright, Trademark and Internet Update". The speakers will include Brian Banner (Banner & Witcoff), Beckwith Burr (Wilmer Cutler), and Terence Ross (Gibson Dunn & Crutcher). The price to attend ranges from $70-$125. For more information, call 202 626-34638. See, notice. Location: D.C. Bar Conference Center, 1250 H Street NW, B-1 Level.

11:00 AM. The Senate Finance Committee will hold a hearing on several nominations, including that of David Spooner to be Assistant Secretary of Commerce for Import Administration. Location: Room 215, Dirksen Building.

6:00 -8:15 PM. The DC Bar Association will host a continuing legal education (CLE) seminar titled "2005 Intellectual Property Law Review Series, Part 2: Patent Law Update". The speakers will include Bradley Wright (Banner & Witcoff) and Eric Wright (Morgan & Finnegan). The price to attend ranges from $70-$125. For more information, call 202 626-3488. See, notice. Location: D.C. Bar Conference Center, 1250 H Street NW, B-1 Level.

10:00 AM. The Internal Revenue Service (IRS) will hold a public hearing on its notice of proposed rulemaking (NPRM) regarding the source of income derived from international communications activity. See, notice in the Federal Register, September 19, 2005, Vol. 70, No. 180, at Pages 54859 - 54878. Location: Auditorium, Internal Revenue Building, 1111 Constitution Ave., NW.

9:00 - 11:00 AM. The Federal Communications Commission's (FCC) Network Reliability and Interoperability Council (NRIC) will meet. The agenda includes discussion of "E911 issues, final recommendations for next generation E911 architectures and transition issues, new best practices for improving the reliability of E911 networks and services, target network architectures for communications with emergency services personnel, and best practices for network security". See, FCC notice [PDF]. Location: FCC, Commission Meeting Room, 445 12th Street, SW.

12/7. Nancy Morris will become Secretary of the Securities and Exchange Commission (SEC) upon the retirement of Jonathan Katz in early January of 2006. See, SEC release.

12/8. The Department of Justice (DOJ) announced that Thomas Barnett, the acting Assistant Attorney General in charge of the Antitrust Division, wrote a business review letter that states that the DOJ will not challenge the creation of a free edition of the Denver Post newspaper. There are two newspapers in Denver, Colorado, the Denver Post and the Rocky Mountain News. They participate in a joint operating agreement that the DOJ approved in 2001.

12/8. The Business Software Alliance (BSA) and International Data Corporation (IDC) released a report titled "Global Economic Impact Study on Piracy Reduction". See also, BSA release.

12/7. America Online (AOL) and the National Cyber Security Alliance (NCSA) released a report [11 pages in PDF] titled "AOL/NCSA Online Safety Study". It consists of results of a survey of 354 home computer users regarding cyber security. See also, NCSA release.

12/7. The U.S. Court of Appeals (10thCir) issued its opinion in Dominion Video Satellite v. Echostar Satellite, a dispute regarding a broadcast satellite transponder lease agreement. Pursuant to an arbitration provision in the agreement, the parties submitted their dispute to arbitrary. Dominion prevailed. The U.S. District Court (DColo) confirmed the arbitration award. It also awarded Dominion $63,436.02 in attorneys' fees and costs incurred in responding to EchoStar's frivolous and vexatious motions. EchoStar appealed the confirmation of the arbitration award on several grounds, including federal preemption, First Amendment, claim preclusion, impossibility, and justiciability. It also appealed the award of attorneys fees. The Court of Appeals affirmed the District Court. It went on to invite Dominion to file a motion for further attorneys' fees defending against EchoStar's frivolous appeal. This case is Dominion Video Satellite, Inc. v. Echostar Satellite, LLC, U.S. Court of Appeals for the 10th Circuit, App. Ct. Nos. 04-1465 and 05-1080, appeals from the U.S. District Court for the District of Colorado, D.C. No. 03-K-0607. Judge Tacha wrote the opinion of the Court of Appeals, in which Judges O'Brien and Baldock joined.

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