7/12. The European Commission (EC) announced that it will take another 280.5 Million Euros from Microsoft. This confiscation, like the previous ones, are associated with the EC's order of March 24, 2004. See, EC release.

The EC announced its original Commission Decision [302 pages in PDF] on March 24, 2004, and released it on April 22, 2004. In 2004, the EC took from Microsoft 497,196,304 Euros, and ordered it to sell Windows without Media Player and make certain intellectual property available to competitors. See also, story titled "European Commission Seeks 497 Million Euros and Code Removal from Microsoft" in TLJ Daily E-Mail Alert No. 863, March 25, 2004; and story titled "European Commission Releases Microsoft Decision" in TLJ Daily E-Mail Alert No. 883, April 23, 2004.

Hewitt Pate, who was the chief U.S. antitrust enforcer at the time that the EC made issued its original order, frequently criticized the EC's action. See for example, stories titled "US Antitrust Chief Says EU's Microsoft Decision Could Harm Innovation and Consumers" in TLJ Daily E-Mail Alert No. 863, March 25, 2004; "Pate Criticizes EC Decision Regarding Microsoft" in TLJ Daily E-Mail Alert No. 869, April 5, 2004; and "Pate Addresses US EU Differences on Antitrust, Microsoft, and IPR" in TLJ Daily E-Mail Alert No. 913, June 8, 2004.

See also, story titled "EU Seeks More Money and Disclosures from Microsoft" in TLJ Daily E-Mail Alert No. 1,279, December 23, 2006

The EC asserted in its just announced action that Microsoft is not in compliance with the 2004 order, and that the 2004 order is based upon principles of competition law.

Microsoft General Counsel Brad Smith asserted in a release that "We have great respect for the Commission and this process".

He elaborated that Microsoft disputes the legality of this latest EC action, and will "ask the European courts to determine whether our compliance efforts have been sufficient and whether the Commission's unprecedented fine is justified".

7/13. The U.S. Court of Appeals (9thCir) issued its opinion [11 pages in PDF] in FTC v. Cyberspace.com, affirming the judgment of the District Court in favor of the Federal Trade Commission (FTC). This is a FTC Act deceptive practices action involving deception of consumers regarding internet access service.

The Court of Appeals construed the meaning of Section 5 of the FTCA, which serves as the basis for many of the FTC's actions to enjoin fraudulent internet based commercial operations.

There are numerous defendants. There are two individuals (Ian Eisenberg and Chris Hebard), a company that they formed (Electronic Publishing Ventures, LLC), four of its subsidiaries (Cyberspace.com, LLC, Essex Enterprises, LLC, Surfnet Services, LLC, and Splashnet.net, LLC), and two foreign entities owned or controlled by Eisenberg and Hebard for the purpose of owning EPV.

While the defendants' ownership and control structure may have been complex, the activities that are the subject of this litigation are simple. The defendants mailed out 4.4 Million checks in the amount of $3.50 each. Small print on the back of the checks stated that by depositing the checks the recipients agreed to have charges added to their monthly phone bills charging them $19.95 or $29.95 for dial internet access service. Other material suggested that the check was a refund.

At least 225,000 recipients deposited these checks. However, less than one percent logged on for service.

The FTC filed a civil complaint [7 pages in PDF], on October 20, 2000, in U.S. District Court (WDWash) against the defendants alleging that this scheme violates Section 5 of the FTCA, which is codified at 15 U.S.C. § 45(a).

This section, which serves as the basis for many FTC actions, provides, in part, that "Unfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce, are hereby declared unlawful."

The District Court held that the defendants violated Section 5, and that the proper amount of consumer redress was $17,676,897.

See also, the FTC's web page for this case.

Defendants appealed. The Court of Appeals affirmed.

The Court of Appeals wrote that "a practice falls within this prohibition (1) if it is likely to mislead consumers acting reasonably under the circumstances (2) in a way that is material."

It added that "A solicitation may be likely to mislead by virtue of the net impression it creates even though the solicitation also contains truthful disclosures." Hence, the addition of the fine print disclosure does not save the defendants in this case.

The Court of Appeals elaborated that "Hebard and EFO's mailing created the deceptive impression that the $3.50 check was simply a refund or rebate rather than an offer for services. The check was made out to the individual or small business to whom it was sent, with the consumer's phone number in the ``re´´ line. The portion of the document that resembled an invoice included columns labeled ``invoice number,´´ ``account number,´´ and ``discount taken,´´ implying a preexisting business relationship for which a refund check was being offered. The front of the check and invoice lacked any indication that by cashing the check, the consumer was contracting to pay a monthly fee."

It concluded that "no reasonable factfinder could conclude that the solicitation was not likely to deceive consumers acting reasonably under the circumstances."

The Court of Appeals added that this conclusion is also supported by consumers' reactions. Over 99 percent of those who deposited the checks did not use the service, indicating that they had been deceived.

The Court of Appeals concluded that "the district court properly granted summary judgment to the FTC on the FTCA § 5 violation because no reasonable factfinder could conclude that the solicitation was not likely to mislead consumers acting reasonably under the circumstances in a way that is material."

The Court of Appeals also affirmed the District Court with respect to the personal liability of of Eisenberg. It wrote that "An individual is personally liable for a corporation's FTCA § 5 violations if he ``participated directly in the acts or practices or had authority to control them´´ and `` `had actual knowledge of material misrepresentations, was recklessly indifferent to the truth or falsity of a misrepresentation, or had an awareness of a high probability of fraud along with an intentional avoidance of the truth.´ ´´" (Citing 9th Circuit precedent.)

This case is Federal Trade Commission v. Cyberspace.com, LLC, et al., U.S. Court of Appeals for the 9th Circuit, App. Ct. Nos. 04-35428 and 04-35431, appeals from the U.S. District Court for the Western District of Washington.

7/13. President Bush announced his intent to nominate Christopher Padilla to be Assistant Secretary of Commerce (Export Administration). He is currently Chief of Staff to Deputy Secretary of State Robert Zoellick, who was previously the U.S. Trade Representative. Padilla was previously Assistant USTR for Intergovernmental Affairs and Public Liaison. He has also worked for Eastman Kodak Company, Lucent Technologies, and AT&T. See, White House release.

7/13. President Bush nominated Henry Paulson, who is the new Secretary of the Treasury, to also be United States Governor of the International Monetary Fund for a term of five years, United States Governor of the International Bank for Reconstruction and Development for a term of five years, United States Governor of the Inter-American Development Bank for a term of five years, United States Governor of the African Development Bank for a term of five years, United States Governor of the Asian Development Bank, United States Governor of the African Development Fund, and United States Governor of the European Bank for Reconstruction and Development. See, White House release.

7/13. Robert Cresanti was named Chief Privacy Officer at the Department of Commerce (DOC). He also remains the DOC's Under Secretary for Technology.

7/13. The Markle Foundation's (MF) Task Force on National Security released a report [100 pages in PDF] titled "Mobilizing Information to Prevent Terrorism: Accelerating Development of a Trusted Information Sharing Environment". See also, MF release.

7/12. The House Commerce Committee (HCC) amended and approved HR 5337, the "Reform of National Security Reviews of Foreign Direct Investments Act". See, HCC release and statement by Rep. John Dingell (D-MI), the ranking Democrat on the HCC.

7/12. The National Telecommunications and Information Administration (NTIA) published in its web site comments that it received in response to its notice of inquiry (NOI) regarding "implementation of the Spectrum Sharing Innovation Test-Bed (Test-Bed) where Federal and non-Federal users can study the feasibility of increasing the efficient use of the spectrum". See, notice in the Federal Register, June 8, 2006, Vol. 71, No. 110, at Pages 33282-33284, and NTIA web page with hyperlinks to comments. July 10, 2006, was the deadline to submit comments.

7/11. The House approved HR 5646 by a vote of 417-4. See, Roll Call No. 369. This bill requires the Environmental Protection Agency (EPA) to conduct a "study analyzing the rapid growth and energy consumption of computer data centers by the Federal Government and private enterprise". It also provides that "It is the sense of Congress that it is in the best interest of the United States for purchasers of computer servers to give high priority to energy efficiency as a factor in determining best value and performance for purchases of computer servers".

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

The Senate will meet at 9:30 AM. It will resume consideration of resume consideration of  HR 5441, the homeland security appropriations bill.

TIME CHANGE. 9:00 AM. The Senate Judiciary Committee (SJC) may hold an executive business meeting. The agenda includes consideration of numerous judicial nominations: Neil Gorsuch (to be a Judge of the U.S. Court of Appeals for the 10th Circuit), Jerome Holmes (10th Circuit), Kimberly Moore (Federal Circuit), Bobby Shepherd (8th Circuit), Gustavo Antonio Gelpi (US District Court, Puerto Rico), and Daniel Jordan (USDC, Southern District of Mississippi). The agenda also includes consideration of several Department of Justice (DOJ) nominations: Steven Bradbury (Assistant Attorney General in charge of the Office of Legal Counsel), Alexander Acosta (U.S. Attorney for the Southern District of Florida), Martin Jackley (U.S. Attorney for the District of South Dakota), and Brett Tolman (US Attorney for the District of Utah). The agenda also includes consideration of S 2453, the "National Security Surveillance Act of 2006", S 2455, the "Terrorist Surveillance Act of 2006", S 2468, a bill to provide standing for civil actions for declaratory and injunctive relief to persons who refrain from electronic communications through fear of being subject to warrantless electronic surveillance for foreign intelligence purposes, S 3001, the "Foreign Intelligence Surveillance Improvement and Enhancement Act of 2006", S 2831, the "Free Flow of Information Act of 2006", HR 1036, the "Copyright Royalty Judges Program Technical Corrections Act", and S 1845, the "Circuit Court of Appeals Restructuring and Modernization Act of 2005". See, notice. Most of the items have been on previous agendas. The SJC frequently cancels or postpones meetings without notice. The SJC rarely follows its published agenda. Press contact: Courtney Boone at 202-224-5225. Location: Room 226, Dirksen Building.

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

9:30 AM - 5:30 PM. The Antitrust Modernization Commission (AMC) will hold a meeting to deliberate on possible recommendations regarding the antitrust laws to Congress and the President. The meeting is open to the public, but registration is required. See, notice in the Federal Register, June 23, 2006, Vol. 71, No. 121, at Page 36059. Location: Morgan Lewis, main conference room, 1111 Pennsylvania Ave., NW.

9:30 - 11:00 AM. The Markle Foundation's (MF) Task Force on National Security will host an event to release a report  titled "Mobilizing Information to Prevent Terrorism: Accelerating Development of a Trusted Information Sharing Environment". Registration and check-in will begin at 8:30 AM. At 9:30 AM, the speakers will present the report, and then respond to questions. Location: The Brookings Institution, 1775 Massachusetts Ave., NW.

10:00 AM. The Senate Finance Committee will hold a hearing on the nomination of Eric Solomon to be Assistant Secretary of the Treasury for Tax Policy. Location: Room 215, Dirksen Building.

10:00 AM. The Senate Homeland Security and Governmental Affairs will hold a hearing on the nomination of Eric McMillin to be Deputy Director of the Office of Management and Budget (OMB). See, notice. Location: Room 342, Dirksen Building.

10:30 AM. The House Ways and Means Committee's Subcommittee on Select Revenue Measures will hold a hearing titled "Issues Relating to the Patenting of Tax Advice". See, notice. Location: Room B-318, Rayburn Building.

12:00 NOON - 2:00 PM. The Alliance for Public Technology (APT) will host a brown bag lunch titled "Preemption of State Wireless Regulation: Where Do Consumers Fit In?". The speakers will be Brian Fontes (Cingular) and Dane Snowden (CTIA). RSVP to apt at apt dot org or 202-263-2970. Location: 919 18th St., NW, 10th Floor Conference Room.

2:00 - 5:00 PM. The Center for Democracy and Technology (CDT) and the Congressional E-9-1-1 Caucus will host a demonstration titled "Emergency Communications Services Tech Fair". See, notice. There will also be a reception at 5:00 - 7:00 PM. Location: Rayburn Foyer, Rayburn Building, Capitol Hill.

2:30 PM. The Senate Commerce Committee (SCC) will hold a hearing titled "Unmanned Aerial Systems in Alaska: A Framework for the Nation". Sen. Ted Stevens (R-AK) will preside. See, notice. Location: Room 562, Dirksen Building.

TIME? The Board of Directors of the American Intellectual Property Law Association (AIPLA) will meet. Location: AIPLA, Headquarters Board Room, Arlington, VA.

6:00 - 9:15 PM. The DC Bar Association will host a continuing legal education (CLE) seminar titled & "Antitrust Investigations: Tactical and Ethical Issues". The speakers will include Ray Hartwell (Hunton & Williams), Kathryn Fenton (Jones Day), Donald Klawiter (Morgan Lewis & Bockius), Ann Marie O’Brien (Antitrust Division). 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.

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

5:00 PM. Deadline to submit comments to the Office of the U.S. Trade Representative (USTR) regarding its special provincial review (SPR) of intellectual property rights (IPR) protection in Peoples Republic of China (PRC). See, notice in the Federal Register, June 16, 2006, Vol. 71, No. 116, at Pages 34969-34970.

6:00 PM. Deadline for upfront payments for the Federal Communications Commission's (FCC) Auction 66. This is the auction of Advance Wireless Services (AWS) licenses in the 1710-1755 MHz and 2110-2155 MHz (AWS-1) bands. See also, notice in the Federal Register, June 2, 2006, Vol. 71, No. 106, at Pages 32089-32091.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Further Notice of Proposed Rulemaking (FNPRM) regarding whether and how an open global database of proxy numbers of Video Relay Service (VRS) users may be created so that a hearing person may call a VRS user through any VRS provider without having to ascertain the first VRS user's current internet protocol address. See, notice in the Federal Register, May 31, 2006, Vol. 71, No. 104, at Pages 30848-30856. This FNPRM is FCC 06-57 in CG Docket No. 03-123.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its further notice of proposed rulemaking (FNPRM) regarding telecommunications relay services (TRS) and speech to speech services for individuals with hearing and speech disabilities, and misuse of internet protocol relay service and video relay service. This item is FCC 06-58 in CG Docket No. 03-123. See, notice in the Federal Register, June 1, 2006, Vol. 71, No. 105, at Pages 31131-31137.

8:30 - 10:00 AM. The Progress and Freedom Foundation (PFF) will host a book launch for Net Neutrality or Net Neutering: Should Broadband Internet Services be Regulated? This book is a collection of essays. The speakers will be Thomas Lenard (PFF), David Farber (University of Pennsylvania), Randy May (Maryland Free State Foundation), and Adam Thierer (PFF). See, notice and registration page. A continental breakfast will be served. Location: Holeman Lounge, National Press Club, 529 14th St., NW.

8:30 AM - 1:30 PM. The U.S. Chamber of Commerce's National Chamber Foundation will host an event titled "The State of the American Judiciary". The keynote speaker will be Justice Antonin Scalia. See, notice. For more information, contact Danielle Walker at 202-463-5500 or ncfevents at uschamber dot com. Location: U.S. Chamber, 1615 H Street, NW.

9:30 AM. The Senate Judiciary Committee (SJC) may hold a hearing titled "Department of Justice Oversight". Attorney General Alberto Gonzales is scheduled to testify. Sen. Arlen Specter (R-PA) wrote in a letter to Gonzales that the SJC is interested in surveillance of communications and financial transaction, the Foreign Intelligence Surveillance Act Court, prosecution of journalists, and related issues. Location: Room 216, Hart Building.

10:00 AM. The House Financial Services Committee's (HFSC) Subcommittee on Financial Institutions will hold a hearing titled "Hearing entitled "ICANN and the Whois Database: Providing Access to Protect Consumers from Phishing". Location: Room 2128, Rayburn Building.

12:00 NOON - 1:30 PM. The DC Bar Association will host a panel discussion titled "Trademarks and the Internet". The speakers will include David Kelly (Finnegan Henderson). The price to attend ranges from $15-$30. For more information, call 202-626-3463. See, notice. Location: D.C. Bar Conference Center, 1250 H Street NW, B-1 Level.

1:00 - 3:00 PM. The Department of State's (DOS) International Telecommunication Advisory Committee will meet to prepare for ITU Radiocommunication Sector's Special Committee on Regulatory/Procedural Matters that will take place on December 4-8, 2006, in Geneva, Switzerland. See, notice in the Federal Register, May 4, 2006, Vol. 71, No. 86, at Pages 26397-26398. Location: Boeing Company, 1200 Wilson Blvd., Arlington, VA.

1:30 - 5:00 PM. The Department of Justice's (DOJ) Antitrust Division and the Federal Trade Commission (FTC) will hold their third joint public hearing on "whether and when specific types of single-firm conduct may violate Section 2 of the Sherman Act by harming competition and consumer welfare and when they are pro-competitive or benign". This hearing will focus on refusals to deal. The presenters will be Stephen Donovan (International Paper), William Kolasky (WilmerHale), Hewitt Pate (Hunton & Williams), Robert Pitofsky (Georgetown University Law Center), Steven Salop (Georgetown University Law Center), and Mark Whitener (General Electric). Location: Conference Room C, 601 New Jersey Ave., NW.

TIME? The Federal Communications Commission's (FCC) North American Numbering Council (NANC) will hold a meeting. Location: ___.

Day one of a two day conference hosted by the National Institute of Standards and Technology (NIST) ant the American National Standards Institute (ANSI) titled "Options for Action Summit: Addressing U.S. Competitiveness in Global Standardization". See, notice. Location: NIST, 100 Bureau Drive, Gaithersburg, MD.

Day one of a two day closed meeting of the Defense Science Board 2006 Summer Study on Information Management for Net-Centric Operations. See, notice in the Federal Register, April 11, 2006, Vol. 71, No. 69, Page 18292. Location: 3601 Wilson Boulevard, 3rd Floor, Arlington, VA.

10:00 AM. The Senate Commerce Committee's (SCC) Subcommittee Technology, Innovation, and Competitiveness will hold a hearing titled "High-Performance Computing". See, notice. The hearing will be webcast by the SCC. Sen. John Ensign (R-NV) will preside. Press contact: Aaron Saunders (Stevens) at 202-224-3991 or Andy Davis (Inouye) at 202-224-4546. Location: Room 562, Dirksen Building.

10:00 AM. The Senate Banking Committee will hold a hearing titled "The Federal Reserve's Second Monetary Policy Report to Congress for 2006". The witness will be Federal Reserve Board (FRB) Chairman Ben Bernanke. See, notice. Location: Room 538, Dirksen Building.

12:00 NOON. The Cato Institute will host a panel discussion titled "U.S.-China Trade, Exchange Rates, and the U.S. Economy". The speakers will be Nicholas Lardy (Institute for International Economics), Frank Vargo (National Association of Manufacturers), and Daniel Griswold (Cato). Lunch will follow the program. See, notice. Location: Cato, 1000 Massachusetts Ave., NW.

2:15 - 5:30 PM. The DC Bar Association will host a continuing legal education (CLE) seminar titled "Practical Law Office Technology for Solos and Small Firms". The speakers will include Reid Trautz and Lisa Weatherspoon. The price to attend ranges from $50-$125. For more information, call 202-626-3488. See, notice. Location: D.C. Bar Conference Center, 1250 H Street NW, B-1 Level.

6:30 - 8:30 PM. The Federal Communications Bar Association's (FCBA) Young Lawyers Committee will host an event titled "Summer Associate Happy Hour". For more information, contact Chris Fedeli at cfedeli at crblaw dot com or 202-828-9874. Location: Location: Helix Lounge, 1430 Rhode Island Ave., NW.

Day one of a two day conference hosted by the National Institute of Standards and Technology (NIST) ant the American National Standards Institute (ANSI) titled "Options for Action Summit: Addressing U.S. Competitiveness in Global Standardization". See, notice. Location: NIST, 100 Bureau Drive, Gaithersburg, MD.

Day two of a two day closed meeting of the Defense Science Board 2006 Summer Study on Information Management for Net-Centric Operations. See, notice in the Federal Register, April 11, 2006, Vol. 71, No. 69, Page 18292. Location: 3601 Wilson Boulevard, 3rd Floor, Arlington, VA.

10:00 AM. The Federal Communications Commission's (FCC) Technological Advisory Council will hold a meeting. See, notice [PDF]. Location: FCC, Commission Meeting Room, TW-C305 at 445 12th Street SW.