4/27. The U.S. Court of Appeals (2ndCir) issued its short per curiam opinion [PDF] in Fortis v. USA, affirming the judgment of the District Court, and following the precedent of three other circuits, regarding the Internal Revenue Service's (IRS) illegal collection of excise taxes on certain telecommunications services, in violation of Sections 4251 and 4252 of the Internal Revenue Code.

The Court of Appeals wrote that "At issue is whether the federal excise tax statute, 26 U.S.C. § 4251, et seq., applies to the telephone services used by Fortis during that time, and in particular, whether the provision of that statute that defines taxable toll telephone service as a ``telephonic quality communication for which (a) there is a toll charge which varies in amount with the distance and elapsed transmission time of each individual communication and (b) the charge is paid within the United States´´".

The Court of Appeals did not bother itself to refute, or even mention, the legal arguments advanced by the IRS.

It concluded in a few brief paragraphs that the District Court, which granted summary judgment to the taxpayer, wrote "thorough and well-reasoned opinions", and that 11th, 6th, and D.C. Circuits have already reached the same conclusion "for substantially the same reasons".

This per curiam opinion may have been written by a law clerk.

There are billions of dollars in taxation of phone customers at issue. The IRS is going to extraordinary lengths to defend its claim to these tax revenues. The Court of Appeals brief and dismissive treatment of the IRS's appeal can be understood when viewed in the context of the language of the statute, and the unanimous conclusions of other circuit courts. The plain meaning of the statute does not permit the IRS to collect the tax that it continues to collect. Moreover, although three other circuits have ruled that the IRS cannot collect this tax, it continues to defy the courts.

Statute. These cases concern 26 U.S.C. § 4251, which imposes a 3 percent excise tax on some, but not all, communications services. This tax is sometimes referred to by its opponents as the "Spanish American War tax", since it was originally imposed to help fund that war. 26 U.S.C. § 4252 contains the applicable definitions.

§ 4251(b) provides that the term ''communications services'' means "(A) local telephone service; (B) toll telephone service; and (C) teletypewriter exchange service". These cases involve "toll telephone service".

26 U.S.C. § 4252(b) provides that "toll telephone service" means

"(1) a telephonic quality communication for which
   (A) there is a toll charge which varies in amount with the distance and elapsed transmission time of each individual communication and
   (B) the charge is paid within the United States, and
(2) a service which entitles the subscriber, upon payment of a periodic charge (determined as a flat amount or upon the basis of total elapsed transmission time), to the privilege of an unlimited number of telephonic communications to or from all or a substantial portion of the persons having telephone or radio telephone stations in a specified area which is outside the local telephone system area in which the station provided with this service is located." (Parentheses in original.)

That is, to be taxable, a "toll telephone service" must include a "toll charge which varies in amount with the distance and elapsed transmission time". The key word here is "and". The taxpayers in these cases assert that "and" means "and". The IRS asserts that "and" means "or".

The IRS is collecting billions of dollars in taxes where the charge does not vary with distance, in violation of the plain meaning of the statute.

11th Circuit. This is the IRS's fourth loss before circuit courts. The IRS's first appeals court loss on this issue was before the U.S. Court of Appeals (11thCir) in ABIG v. IRS. See, See May 10, 2005 opinion [22 pages in PDF], and story titled "IRS Loses Appeal Over 3% Excise Tax on Communications" in TLJ Daily E-Mail Alert No. 1,133, May 11, 2005.

This case is American Bankers Ins. Group v. United States, U.S. Court of Appeals for the 11th Circuit, App. Ct. No. 04-10720, an appeal from the U.S. District Court for the Southern District of Florida, D.C. No. 03-21822 CV-PCH. Judge Dubina wrote the opinion of the Court of Appeals, in which Judge Anderson and Black joined. The Court of Appeals opinion is also reported at 408 F.3d 1328. The District Court opinion is also reported at 308 F. Supp. 2d 1360.

6th Circuit. The IRS lost again before the U.S. Court of Appeals (6thCir) in Office Max v. US. See, November 2, 2005, opinion [20 pages in PDF] and story titled "IRS Loses Another Appeal Regarding 3% Excise Tax" in TLJ Daily E-Mail Alert No. 1,246, November 3, 2005.

The Court wrote that ""When a party presents the question whether ``and´´ means ``or,´´ it is tempting to be dismissive of the claim or, worse, to make a crack about the demise of the rule of law." However, it went on to explain in a detailed opinion that "and" does in fact mean "and".

This case is Office Max, Inc. v. U.S.A., U.S. Court of Appeals for the 6th Circuit, App. Ct. No. 04-4009, an appeal from the U.S. District Court for the Northern District of Ohio, at Cleveland, D.C. No. 03-00961, Judge Patricia Gaughan presiding. The Court of Appeals opinion is reported at 428 F.3d 583.

Following this opinion, providers of telecommunications services, including wireless service providers, local exchange carriers, cable companies, and the trade groups that represent them, wrote a letter to the Secretary of the Treasury, John Snow. See also, story titled "Companies Write Snow Regarding IRS Disregard for Court Opinions on 3% Excise Tax" in TLJ Daily E-Mail Alert No. 1,270, December 12, 2005.

DC Circuit. The IRS lost yet again before the U.S. Court of Appeals (DCCir) in Amtrak v. US. The National Railroad Passenger Corporation, better known as Amtrak, is another phone service customer that paid the taxes that the IRS is not permitted to collect by Section 4252.

The Court held that the meaning of the statute is "unambiguous". Hence, it concluded that if the IRS wants to collect taxes on the phone services at issue, "the IRS must take its case to Congress, not this court".

See, December 9, 2005, opinion [11 pages in PDF]. This case is National Railroad Passenger Corp. v. United States, U.S. Court of Appeals for the District of Columbia Circuit, App. Ct. No. 03cv00431, an appeal from the U.S. District Court for the District of Columbia. Judge Tatel wrote the opinion of the Court of Appeals, in which Judges Williams and Griffith joined. This case is reported at 431 F.3d 374.

IRS Defiance of Judicial Authority. The IRS has not petitioned for writ of certiorari in any of these cases. Rather, the IRS has announced its defiance of judicial authority.

On October 26, 2005, the IRS announced in a notice [PDF] that it will violate the holding 11th Circuit in the ABIG case. It wrote that it "will continue to assess and collect the tax under § 4251 on all taxable communications services, including communications services similar to those at issue in the cases. Collectors should continue to collect the tax, including from taxpayers within the jurisdiction of the United States Court of Appeals for the Eleventh Circuit."

The IRS added in its notice that "Persons paying for taxable communications services (taxpayers) are required to pay the tax to a collecting agent (the person receiving the payment on which tax is imposed), and collecting agents are required to pay over the tax to the United States Treasury and to file the required returns. Taxpayers may preserve any claims for overpayments by filing administrative claims for refund with the Service pursuant to § 6511. Taxpayers are advised, however, that these claims, including claims for which appellate venue would lie in the United States Court of Appeals for the Eleventh Circuit, will not be processed while there are pending cases in other United States Courts of Appeals." (Parentheses in original.)

See also, story titled "IRS Announces That It Will Violate Court of Appeals Ruling Regarding Excise Tax on Phone Service" in TLJ Daily E-Mail Alert No. 1,241, October 27, 2005.

Moreover, the IRS has offered some indication that it may be considering further expanding the excise tax, in the absence of statutory authority, to new technologies. See, story titled "IRS Publishes Advance NPRM Regarding Expanding the Excise Tax on Telephones to Include New Technologies" in TLJ Daily E-Mail Alert No. 931, July 6, 2004.  And see, story titled "Rep. Cox Urges Bush to Instruct IRS Not to Expand Excise Tax on Phones" in TLJ Daily E-Mail Alert No. 945, July 26, 2004.

Reaction. David Cohen, a VP at the U.S. Telecom Association, wrote in a release that "The 2nd Circuit decision affirms what three other circuit courts have already found -- the collection of the federal excise tax is unlawful. With this latest decision, it's time for the government to resolve this issue and stop enforcing the illegal application of the telephone excise tax."

No one at the IRS or DOJ contacted by TLJ has been willing to speak about these cases, or this issue, except to say that they will not talk to TLJ about these cases, or this issue.

The present case is Fortis, Inc. v. United States of America, U.S. Court of Appeals for the 2nd Circuit, App. Ct. No. 05-2518-cv, an appeal from the U.S. District Court for the Southern District of New York, D.C. No. 03 Civ. 5137, Judge John Koeltl. The Court of Appeals issued a per curiam opinion of Straub, Sack and Trager.

4/28. The U.S. Court of Appeals (8thCir) issued its opinion [10 pages in PDF] in State Farm v. NRCCUA, a case regarding an insurer's obligation to defend and indemnify its insured when governments take action against the insured for privacy violations.

The National Research Center for College and University Admissions (NRCCUA) surveyed survey high school students and distributed the results to colleges and universities for the purposes of recruitment and admissions. In addition, without disclosure to the students, the NRCCUA sold survey information to commercial entities for marketing purposes.

The Federal Trade Commission (FTC) and various state attorneys general investigated, and took action against the NRCCUA. See, FTC's administrative Complaint and Decision and Order. The NRCCUA and the FTC entered into a consent decree which provided that the NRCCUA was enjoined further undisclosed sale of survey information. However, the decree provided for no penalty, fine or other payment.

The state of Iowa, on behalf of a group of states, determined that the NRCCUA must pay them a total of $300,000 for privacy violations. The state of Missouri demanded $20,000.

The NRCCUA had purchased a business liability policy from State Farm. This policy provided that State Farm "will pay those sums that the insured becomes legally obligated to pay as damages because of ... personal injury or advertising injury to which this insurance applies." The policy further defined this to include "oral or written publication of material that violates a person's right of privacy". The policy also provided that State Farm had a duty to defend its insured against such claims.

State Farm filed a complaint in U.S. District Court (WDMo) seeking a declaratory judgment that it has no duty under the policy to defend or indemnify the NRCCUA in the above described matters. The District Court granted summary judgment to State Farm on the grounds that none of the proceedings were claims for damages within the meaning of the policy. That is, government fines and penalties are not damages.

The Court of Appeals affirmed in part and reversed in part.

The Court of Appeals reasoned that the proceeding were claims for invasion of privacy within the meaning of the policy, but were not claims for damages. It held that "because the FTC did not seek compensatory relief, State Farm did not have a duty to defend against the FTC's claims." The Court also held that the payments in the Iowa proceeding were not damages. However, the Court held that some of the payments to Missouri were in the nature of damages, and hence, covered by the policy.

This case is State Farm Fire and Casualty Company v. National Research Center for College and University Admissions and Donald Munce, U.S. Court of Appeals for the 8th Circuit, App. Ct. No. 05-1588, an appeal from the U.S. District Court for the Western District of Missouri.

4/26. Secretary of Homeland Security Michael Chertoff spoke and answered question at an event at George Mason University in Fairfax, Virginia. He discussed, among other topics, the National Security Agency's (NSA) extrajudicial electronic surveillance of communications where one party in within the US and one party is outside. See, transcript.

He was asked, "How do you justify monitoring the email and phone communications of American citizens who are not suspected of any crime?"

Chertoff (at left) said, "Well, first of all, of course, all these things are guided by a very complicated set of laws.  In the case of monitoring the -- again, without getting into classified areas -- we're either dealing with things that come under FISA where you have warrants because you're dealing with people who we have some probable cause to believe are connected to terrorism; or we're dealing with international phone traffic, which traditionally has been an area where the government has a wide latitude because you're dealing with international travel and international communication."

He continued that "The bottom line here is this: In the 21st century, we don't have the kind of radar against terrorist bombs that we had in the 20th century against Soviet bombers. Our radar is intelligence. Our ability to detect people talking about plots is the only thing that allows us to disrupt those plots before Americans get killed. And if we don't use that radar, what we're going to see is more and more Americans getting killed. And frankly, what we'd be more likely to see is a real backlash."

He concluded that "So the use of these kinds of electronic surveillance as a way of warning ourselves to prevent terrorist acts is to my mind as valid and as reasonable as the use of radar to keep bombers out of the country in the 21st century."

5/1. TLJ has prepared drafts of the various titles of the "Communications Opportunity, Promotion, and Enhancement Act of 2006", or COPE Act. These drafts incorporate the amendments adopted at the mark up of April 26. See:

• Title I, titled "National Cable Franchising".
• Title II, titled "Enforcement of Broadband Policy Statement", which provides that the Federal Communications Commission (FCC) is authorized to enforce its August 2005 policy statement [3 pages in PDF] regarding network neutrality through case by case adjudicatory proceedings. The HCC rejected the only amendment to this title offered at the April 26 mark up.
• Title III, titled "VOIP/911", which is evolving into a VOIP regulation title that extends beyond 911 and E911.
• Title IV, titled "Municipal Provision of Services".
• Title V, titled "Broadband Service", which provides that a broadband service provider shall not require a subscriber, as a condition on the purchase of its broadband service, to also purchase its cable service, telecommunications service, or VOIP service.
• Title VI, titled "Seamless Mobility".

Interested groups continue to offer their comments on the mark up of the bill.

Walter McCormick, head of the U.S. Telecom Association, stated in a release that this mark up "brings consumers one step closer to having a real choice in video, allowing them to get the services they want from the companies they choose. We congratulate Chairman Barton, Chairman Upton and Congressman Rush and all those on the Committee who have worked so hard to further TV Freedom for the American consumer. This legislation will also help spur investment and innovation in communities across the nation. We look forward to favorable action by the full House of Representatives."

Earl Comstock, head of CompTel, stated in a release on April 26 that "It is unfortunate that members of the House Commerce Committee today capitulated to Bell company lobbying and took yet another step to turn the Internet into a private network controlled by the Bell and cable interests. By adopting legislation designed to speed Bell company entry into video while rejecting Net neutrality amendments that would have preserved competition in the voice and data markets, the Committee has done more harm than good."

Comstock added that "COMPTEL is pleased that the members of the House Judiciary Committee have expressed interest in reviewing competition issues raised in the Net neutrality debate. We look forward to continuing to work with all members of Congress and industry to ensure that the Internet remains the dynamic and innovative technological tool that consumers have come to expect and deserve."

Comstock also testified before a House Judiciary Committee hearing on April 25, 2006. See, prepared testimony [30 pages in PDF], and story titled "House Judiciary Committee Holds Hearing on Network Neutrality" in TLJ Daily E-Mail Alert No. 1,358, April 26, 2006.

Dorothy Coleman of the National Association of Manufacturers (NAM) stated in a release that "Video is an important driver for broadband deployment ... By removing redundant regulatory barriers, the Communications Opportunity, Promotion, and Enhancement Act would expedite investment in new broadband network capable of carrying a wide range of digital communications services. ... The NAM also was pleased to see that the Committee declined to adopt new build-out requirements and to change the original meaning of net neutrality".

The Public Knowledge (PK) wrote in its bimonthly newsletter named "In the Know", that "The markup showed how partisan the issue has become. In the past, telecom issues usually split the Committee by industry -- some were with local telephone companies, some with what was then the long-distance and competitive industry. That's changed. The House Democratic leadership has entered the fray, with Rep. Nancy Pelosi, the Democratic leader, starting her own ``citizen petition´´ for Net Neutrality. In the committee markup on important amendments, Republicans stuck together to defeat most of the measures proposed by Democrats."

In addition, Gigi Sohn, head of PK, stated in a release, regarding the Markey amendment (No. 19) on network neutrality, that "we are disappointed but not surprised that the Committee voted to turn over the future of the Internet to the telephone and cable industry. Neither of those two sectors contributed to the creative development of the Internet, and neither is known for innovation. They are known for their desire to control what goes over their networks."

She added that "We hope the House Telecom and Antitrust Task Force will continue its diligent examination of the competitive issues surrounding control of Internet content and traffic. We look forward as well in the Senate to due consideration of the legislation proposed by Sen. Olympia Snowe and Sen. Byron Dorgan, which would put in place effective enforceable rules to preserve the openness of the Internet without interfering with free markets.”

Ben Scott, of the Free Press and the Save the Internet Coalition, stated in a release that the rejection of the Markey network neutrality amendment "ignores a groundswell of popular support for Internet freedom ... We hope that the full House will resist the big telecom companies and reject the bill. But we look to the Senate to restore meaningful protections for net neutrality and ensure that the Internet remains open to unlimited economic innovation, civic involvement and free speech."

The House will meet at 12:00 NOON in pro forma session only. See, Republican Whip Notice.

The Senate will meet at 2:00 PM. It will resume consideration of HR 4939, the "Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, and Hurricane Recovery, 2006".

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Tegic Communications, Inc. v. Board of Regents of the University of Texas. The U.S. District Court (WDWash) dismissed Tegic's complaint seeking a declaration that its software for hand held devices does not infringe the UT's U.S. Patent No. 4,674,112. The Court held that ii lacks subject matter jurisdiction because of 11th Amendment Immunity. See, Order Granting Motion to Dismiss [PDF]. See also, collection of pleadings and other documents. This case is App. Ct. No. 2005-1553 and D.C. No. C05-0723L. Location: Courtroom 203, 717 Madison Place, NW.

12:00 NOON - 2:00 PM. The DC Bar Association will host a panel discussion titled "An Overview of Health Information Technology: Challenges and Opportunities". The speakers will include Mark Mantooth (Department of Health and Human Services), William Braithwaite (eHealth Initiative), Benjamin Butler (Crowell & Moring), and Robyn Diaz (MedStar Health). The price to attend ranges from $15-25. For more information, call 202-626-3463. See, notice. Location: D.C. Bar Conference Center, 1250 H Street NW, B-1 Level.

2:00 PM. The U.S. Court of Appeals (FedCir) will hear oral argument in Competitive Technologies v. Fujitsu. This case is App. Ct. No. 2005-1237. Location: Courtroom 201, 717 Madison Place, NW.

2:00 PM. The U.S. Court of Appeals (FedCir) will hear oral argument in Technology Licensing v. Thomson. This case is App. Ct. No. 2005-1562. Location: Courtroom 201, 717 Madison Place, NW.

The House will meet at 12:30 PM for morning hour, and at 2:00 PM for legislative business. Votes will be postponed until 6:30 PM. The House will consider numerous items under suspension of the rules, including HR 4943, the "Prevention of Fraudulent Access to Phone Records Act". See, Republican Whip Notice.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in All Computers v. Intel. This case is App. Ct. No. 2005-1271. Location: Courtroom 201, 717 Madison Place, NW.

1:30 - 5:30 PM. The National Commission on Libraries and Information Science (NCLIS) will hold a closed meeting. See, notice in the Federal Register, April 21, 2006, Vol. 71, No. 77, at Page 20732. Location: National Library of Medicine, Conference Room B, NIH Building 38, Room 2S04, 8600 Rockville Pike, Bethesda, MD.

Day one of a four day conference hosted by the Association for Computing Machinery titled "16th Annual Conference on Computer, Freedom and Privacy". See, conference web site. Location: L'Enfant Plaza Hotel.

Deadline to submit comments to the President's National Security Telecommunications Advisory Committee (NSTAC) regarding its May 10, 2006, meeting. See, notice in the Federal Register, April 27, 2006, Vol. 71, No. 81, at Page 24859.

The House will meet at 10:00 AM for legislative business. See, Republican Whip Notice.

9:30 AM - 2:00 PM. The Federal Society will host an event titled "Telecommunications Federalism Conference". RSVP to 202- 822-8138 to RSVP. Attendance if free. However, CLE participation costs $25. Lunch will be served. See, notice and registration page. Location: Capitol Hill Club, 300 1st Street, SE.

9:30 AM. The Federal Communications Commission (FCC) will hold an event titled "Open Meeting". The agenda [3 pages in PDF] includes consideration of further administrative amendments to the 1994 Communications Assistance for Law Enforcement Act (CALEA).

10:00 AM. The House Financial Services Committee will hold a hearing titled "Protecting Investors and Fostering Efficient Markets: A Review of the S.E.C. Agenda". Location: Room 2128, Rayburn Building.

10:00 AM - 12:00 NOON. The House Science Committee (HSC) will hold a hearing titled "The Role of the National Science Foundation in K-12 Science and Math Education". The witnesses will be Dennis Bartels, Joseph Heppert, Rebecca Pringle, and Judy Snyder. The hearing will be webcast by the HSC. Location: Room 2318, Rayburn Building.

10:00 AM - 12:00 NOON. The Department of State's (DOS) International Telecommunication Advisory Committee (ITAC) will meet to prepare for the ITU Plenipotentiary Conference 2006 on November 6-24, 2006, in Ankara, Turkey. See, notice in the Federal Register, March 29, 2006, Vol. 71, No. 60, at Page 15798. Location: __.

10:30 AM. The House Education and Workforce Committee will hold a hearing titled "Building American Competitiveness: Examining the Scope and Success of Existing Federal Math and Science Programs". Location: Room 2175, Rayburn Building.

TIME CHANGE. 2:00 PM. The House Commerce Committee's (HCC) Subcommittee on Commerce, Trade, and Consumer Protection will hold a hearing titled "Digital Content and Enabling Technology: Satisfying the 21st Century Consumer". See, notice. Press contact: Larry Neal (Barton) at 202 225-5735 or Paul Flusche (Stearns) at 202 225-5744. The hearing will be webcast by the HCC. Location: Room 2322, Rayburn Building.

2:00 PM. The House Commerce Committee's (HCC) Subcommittee on Subcommittee on Oversight and Investigations will hold a hearing titled "Sexual Exploitation of Children Over the Internet: What Parents, Kids and Congress Need to Know About Child Predators". This hearing may address proposals to mandate data retention. See, notice. Press contact: Larry Neal (Barton) at 202 225-5735. The hearing will be webcast by the HCC. Location: Room 2123, Rayburn Building.

TIME? The Office of the U.S. Trade Representative (USTR) will hold a hearing on the proposed free trade agreement (FTA) between the U.S. and Malaysia. The USTR seeks comments and testimony on "electronic commerce issues", "trade-related intellectual property rights issues", "barriers to trade in services", and other topics. See, notice in the Federal Register, March 22, 2006, Vol. 71, No. 55, at Pages 14558-14559. Location: __.

Day two of a four day conference hosted by the Association for Computing Machinery titled "16th Annual Conference on Computer, Freedom and Privacy". See, conference web site. Location: L'Enfant Plaza Hotel.

The House will meet at 10:00 AM for legislative business. See, Republican Whip Notice.

2:00 PM. The House International Relations Committee's (HIRC) Subcommittee on Oversight and Investigations will hold a hearing titled "Technology and Counterproliferation". See, notice. Location: Room 2172, Rayburn Building.

2:00 - 4:00 PM. The Department of State's International Telecommunication Advisory Committee will meet to prepare for meetings of the Organization for Economic Co-operation and Development (OECD) WPIE and CISP committee meetings of May 29-31, 2006. See, notice in the Federal Register, April 19, 2006, Vol. 71, No. 75, at Pages 20153-20154. Location: Room 2533, Harry Truman Building, 2201 C Street, NW.

2:30 PM. The Senate Commerce Committee's (SCC) Subcommittee on Trade, Tourism, and Economic Development Hearing will hold a hearing titled "Promoting Economic Development Opportunities Through Nano Commercialization". Sen. Gordon Smith (R-OR) will preside. The hearing will be webcast by the SCC. See, notice. 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.

Extended deadline to submit comments to the U.S. Patent and Trademark Office (USPTO) in response to its notice of proposed rulemaking (NPRM) regarding changes to certain rules affecting practice before the Trademark Trial and Appeal Board. See, notice in the Federal Register, March 27, 2006, Vol. 71, No. 58, at Pages 15097-15098.

Day three of a four day conference hosted by the Association for Computing Machinery titled "16th Annual Conference on Computer, Freedom and Privacy". See, conference web site. Location: L'Enfant Plaza Hotel.

The Republican Whip Notice states that "no votes are expected in the House".

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in ACE v. FCC. This is a challenge to the Federal Communications Commission's (FCC) order 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). The FCC adopted 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. See also, story titled "FCC CALEA Order Challenged" in TLJ Daily E-Mail Alert No. 1,240, Wednesday, October 26, 2005. See also, ACE brief [71 pages in PDF] and FCC brief [52 pages in PDF]. This case is American Council on Education, et al. v. FCC and USA, U.S. Court of Appeals for the District of Columbia, App. Ct. Nos. 05-1404, 1408, 1438, 1451 and 1453, Judges Sentelle, Brown and Edwards presiding. Location: Prettyman Courthouse, 333 Constitution Ave., NW.

12:00 NOON. The Cato Institute will host a program titled "Cato Scholars Square Off: Resolved: The Bush NSA Surveillance Program Is Illegal". The speakers will be the Cato Institute's Robert Levy and Roger Pilon. Lunch will follow the program. See, notice and registration page. Location: Cato, 1000 Massachusetts Ave., NW.

Day four of a four day conference hosted by the Association for Computing Machinery titled "16th Annual Conference on Computer, Freedom and Privacy". See, conference web site. Location: L'Enfant Plaza Hotel.

? May 5 may be the deadline to submit reply comments to the Federal Communications Commission (FCC) in response to ENUM LLC's petition for limited waiver to allow it to obtain North American Numbering Plan (NANP) numbering resources. The FCC's notice [PDF] states that this deadline both May 5 and May 9.

9:30 AM - 5:00 PM. The Antitrust Modernization Commission (AMC) will hold another in a series of hearings. This one will address criminal remedies and civil remedies. See, notice in the Federal Register, April 21, 2006, Vol. 71, No. 77, at Page 20643. Location: Federal Trade Commission (FTC), Conference Center, 601 New Jersey Ave., NW.

Day one of a two day conference hosted by the American Cable Association (ACA) titled "Washington Summit". See, event brochure [PDF]. Location: __.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its second further notice of proposed rulemaking (2ndFNPRM) regarding the obligation of television licensees to provide educational programming for children and the requirement that television licensees protect children from excessive and inappropriate commercial messages. See, text [14 pages in PDF] of this 2ndFNPRM. The FCC adopted this item at its meeting of March 17, 2006. See, notice in the Federal Register, March 27, 2006, Vol. 71, No. 58, at Pages 15145-15147; and story titled "FCC Adopts Further NPRM Re Children's Programming Obligations" in TLJ Daily E-Mail Alert No. 1,332, March 20, 2006. This item is FCC 06-33 in MM Docket No. 00-167.

Deadline to submit nominations to the U.S. Patent and Trademark Office (USPTO) for three members of the Patent Public Advisory Committee and for three members of the Trademark Public Advisory Committee. See, notice in the Federal Register, March 15, 2006, Vol. 71, No. 50, at Pages 13358-13359.

Deadline to submit comments to the U.S. Patent and Trademark Office (USPTO) in response to its notice of proposed rulemaking (NPRM) that proposes to eliminate the Disclosure Document Program. See, notice in the Federal Register, April 6, 2006, Vol. 71, No. 66, at Pages 17399-17401.

4/26. The Senate confirmed Patrick Joseph Schiltz to be a Judge of the U.S. District Court for the District of Minnesota.

4/25. The Senate confirmed Gray Hampton Miller to be a Judge of the U.S. District Court for the Southern District of Texas by a vote of 93-0. See, Roll Call No. 93.

4/27. The Department of Justice (DOJ) released a report [37 pages in PDF] titled "A Review of the FBI’s Investigative Activities Concerning Potential Protesters at the 2004 Democratic and Republican National Political Conventions".

4/27. The Department of Justice (DOJ) announced that five more individuals have been charged with criminal copyright infringement as a part of ongoing operations named "FastLink" and "Site Down". The DOJ stated in a release that "The five defendants charged today are alleged to have been leading members in the illegal software, game, movie, and music trade online..." It adds that these organized groups "act as ``first-providers´´ of copyrighted works to the Internet -- the so-called ``release´´ groups that are the original sources for a majority of the pirated works distributed and downloaded via the Internet." The DOJ further stated that once these groups prepare a stolen work for distribution, the material is distributed in minutes to secure, top-level servers throughout the world, and that "within a matter of hours, the pirated works are distributed globally, filtering down to peer-to-peer and other public file sharing networks accessible to anyone with Internet access."

4/27. The Recording Industry Association of America (RIAA) and Motion Picture Association of America (MPAA) stated in a release that they sent letters to 40 university presidents regarding online infringement of intellectual property rights in music and movies via the universities' local area networks (LAN).

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