8/28. The U.S. Court of Appeals (1stCir) issued its opinion in Charter Communications v. Burdulis, a case regarding theft of cable signals.

Charter is a cable television operator. Its cable signals for premium channels and pay-per-view services are electronically coded, or scrambled.

Thomas Burdulis used an illegally modified cable descrambler device to receive service for which he did not pay. Miquel Sanchez used a quickboard designed to effect the unauthorized reception of premium and pay-per-view programming.

Charter filed complaints in U.S. District Court (DMass) against Burdulis and Sanchez alleging unauthorized reception of cable service in violation of 47 U.S.C. § 553 and unauthorized publication or use of communications in violation of 47 U.S.C. § 605.

The District Court entered default judgments against both defendants on the § 553 claims. However, it held that § 605 does not apply to theft of radio signals transmitted over a cable network. It also held that the amount of statutory damages awarded should be limited to the estimated value of the cable services stolen, and that not more than one award of statutory damages of up to $10,000 would be allowed for all of Sánchez's statutory violations.

Charter appealed. The Court of Appeals affirmed.

§ 605(a) provides, in part, that "no person receiving, assisting in receiving, transmitting, or assisting in transmitting, any interstate or foreign communication by wire or radio shall divulge or publish the existence, contents, substance, purport, effect, or meaning thereof, except through authorized channels of transmission or reception ..."

§ 553 provides in part that "No person shall intercept or receive or assist in intercepting or receiving any communications service offered over a cable system, unless specifically authorized to do so by a cable operator or as may otherwise be specifically authorized by law".

§ 605(b) also provides in part that "The provisions of subsection (a) of this section shall not apply to the interception or receipt by any individual, or the assisting (including the manufacture or sale) of such interception or receipt, of any satellite cable programming for private viewing if -- (1) the programming involved is not encrypted ..."

Subsection 605(e)(3) provides a private cause of action for violations, as does § 553(c). However, prevailing on separate claim under the two sections could give a cable operator two separate damage awards. Moreover, § 605 can result in a higher damage award than § 553.

The Court of Appeals held that "the statutory text does make clear that § 605 is not to apply to signals delivered by wire over a cable network. And if there is any doubt, we think that the structure of the regulatory regime provides the necessary clarity."

It elaborated that § 605 regulates the theft of radio or satellite signals, not the theft of cable signals delivered by wire.

The Court of Appeals concluded that "If Congress finds that theft of wire-based cable continues to be a major problem, it certainly possesses the power to raise the penalty amounts for wire-based cable theft, so that such penalties are on a par with the amounts for wireless theft. Until that time, however, Charter will have to remain content with the penalty amounts available under § 553."

This case is Charter Communications Entertainment I v. Thomas Burdulis and Miquel Sanchez, U.S. Court of Appeals for the 1st Circuit, App. Ct. Nos. 05-1653 and 05-1726, appeals from the U.S. District Court for the District of Massachusetts. Judge Torruella wrote the opinion of the Court of Appeals, in which Judges Lipez and Stafford joined.

8/28. Lee Peeler, the Deputy Director of the Federal Trade Commission's (FTC) Bureau of Consumer Protection will leave the FTC to become President of the National Advertising Review Council and Executive Vice President for National Advertising and Self-Regulation of the Council of Better Business Bureaus. See, FTC release.

8/28. The Supreme Court issued an order [PDF] in Leegin Creative Leather Products v. PSKS, Inc., an antitrust case. PSKS, which runs a women's clothing and accessories store, filed a complaint in the U.S. District Court (EDTex) against Leegin Creative Leather Products, which makes women's accessories, alleging violation of Section 1 of the Sherman Act, in connection with its manufacturer's suggested resale price policies. The District Court awarded $3.6 Million in treble damages to PSKS. The Court of Appeals affirmed in a unpublished opinion. The Supreme Court order states in full that "The application to recall and stay the mandate of the United States Court of Appeals for the Fifth Circuit, case No. 04-41243, presented to Justice Scalia and by him referred to the Court is granted pending the timely filing and disposition of a petition for a writ of certiorari. Should the petition for a writ of certiorari be denied, this stay shall terminate automatically. In the event the petition for a writ of certiorari is granted, the stay shall terminate upon the issuance of the judgment of this Court. This order is conditioned upon the remaining in effect of the bond posted in the United States District Court for the Eastern District of Texas."

8/28. The U.S. Court of Appeals (4thCir) issued its opinion [11 pages in PDF] in USA v. Curry, an eBay fraud case, in which the defendant, Kenneth Curry, auctioned through the eBay web site, but did not deliver, hundreds of gold coins. The Court of Appeals affirmed the conviction for mail fraud under 18 U.S.C. § 1341 and wire fraud under 18 U.S.C. § 1343. However, the Court of Appeals vacated the sentence. This case is USA v. Kenneth Curry II, U.S. Court of Appeals for the 4th Circuit, App. Ct. Nos. 05-5090 and 05-5173, appeals from the U.S. District Court for the Eastern District of Virginia, at Norfolk, D.C. No. CR-05-3, Judge Walter Kelly presiding.

8/28. The Federal Communications Commission's (FCC) Wireless Telecommunications Bureau (WTB) released a Public Notice [6 pages in PDF] that announces changes to the FCC's Universal Licensing System (ULS) to implement FCC Form 608, which is titled "Wireless Telecommunications Bureau Application or Notification for Spectrum Leasing Arrangement or Private Commons Arrangement (Form 608)". This item is DA-06-1723.

The House will next meet at 2:00 PM on Wednesday, September 6. See, Republican Whip Notice.

The Senate will next meet at 11:00 AM on Tuesday, September 5.

CANCELLED. 10:00 AM. The Internal Revenue Service (IRS) will hold a hearing regarding its notice of proposed rule making pertaining to the application of 26 U.S.C. § 199, which provides a deduction for income attributable to domestic production activities, to certain transactions involving computer software. See, notice in the Federal Register, June 1, 2006, Vol. 71, No. 105, at Pages 31128-31129, and notice in the Federal Register, July 31, 2006, Vol. 71, No. 146, at Page 43085. Location: IRS Auditorium (New Carrollton location), 5000 Ellin Road, Lanham, MD. See, notice of cancellation in the Federal Register, August 25, 2006, Vol. 71, No. 165, at Page 50378.

Deadline to submit comments to the Internal Revenue Service (IRS) in response to its notice of proposed rule making pertaining to the application of 26 U.S.C. § 199, which provides a deduction for income attributable to domestic production activities, to certain transactions involving computer software. See, notice in the Federal Register, June 1, 2006, Vol. 71, No. 105, at Pages 31128-31129.

11:00 AM. The Cato Institute will host a panel discussion titled "Prospects for Reform of U.S. Agricultural Policy --With or without Doha". The speakers will include Mike Johanns (Secretary of Agriculture), former Rep. Cal Dooley (D-CA) (head of the Food Products Association), and Robert Thompson (University of Illinois). See, notice and registration page. The event will be webcast by Cato. Lunch will follow the program. Location: Cato, 1000 Massachusetts Ave., NW.

Deadline to submit comments to the National Institute of Standards and Technology's (NIST) Computer Security Division regarding its draft [ZIP] of Special Publication (SP) 800-69, titled "Guidance for Securing Microsoft Windows XP Home Edition: A NIST Security Configuration Checklist. See also, summary. This document provides guidance to telecommuting employees and those who maintain home offices and use Windows XP Home Edition.

Effective date of the Federal Trade Commission's (FTC) final rule amending Section 310.8 of its Telemarketing Sales Rule (TSR) by revising the fees charged to entities for accessing the National Do Not Call Registry. See, notice in the Federal Register, July 31, 2006, Vol. 71, No. 146, at Pages 43048-43054.

Deadline to submit initial comments to the Federal Communications Commission (FCC) for its 2006 biennial review of telecommunications regulations. See, FCC notice [10 pages in PDF] and notice in the Federal Register, August 23, 2006, Vol. 71, No. 163, at Pages 49400-49401. This is CG Docket No. 06-152, EB Docket No. 06-153, IB Docket No. 06-154, ET Docket No. 06-155, WT Docket No. 06-156, WC Docket No. 06-157, and FCC 06-115.

Deadline to submit initial comments to the Federal Communications Commission (FCC) regarding the initial regulatory flexibility analysis of the FCC's Second Further Notice of Proposed Rule Making in its proceeding titled "In the Matter of Children's Television Obligations of Digital Television Broadcasters" and numbered MM Docket No. 00-167. See, notice in the Federal Register, August 25, 2006, Vol. 71, No. 165, at Pages 50380-50382.

Labor Day.

There will be no issue of the TLJ Daily E-Mail Alert.

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

The Senate will return from its August recess at 11:00 AM. It will resume consideration of HR 5631, the Department of Defense FY 2007 appropriations bill. See, 2006 Senate calendar.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Business Objects v. Microstrategy, App. Ct. No. 05-1540. Location: Courtroom 201, 717 Madison Place, NW.

1:00 - 3:00 PM. The U.S. Patent and Trademark Office (USPTO) and the U.S. Copyright Office (CO) will hold a public roundtable discussion regarding World Intellectual Property Organization's (WIPO) Standing Committee on Copyright and Related Rights' (SCCR) work on a proposed Treaty On the Protection of the Rights of Broadcasting Organizations. See, notice in the Federal Register, August 17, 2006, Vol. 71, No. 159, at Page 47489. Location: Atrium Conference Room, USPTO, 600 Dulany Street, Madison West, 10th Floor, Alexandria, VA.

Deadline to submit comments to the Office of the U.S. Trade Representative (USTR) regarding whether major beneficiaries of the Generalized System of Preferences (GSP) program have expanded exports or have progressed in their economic development within the meaning of the statute to the extent that their eligibility should be limited, suspended, or withdrawn, pursuant to section 502(d) of the Trade Act of 1974, which is codified at 19 U.S.C. § 2462(d). See, notice in the Federal Register, August 8, 2006, Vol. 71, No. 152, at Pages 45079-45080.

Tech Law Journal publishes a free access web site and subscription e-mail alert. The basic rate for a subscription to the TLJ Daily E-Mail Alert is $250 per year. However, there are discounts for subscribers with multiple recipients. Free one month trial subscriptions are available. Also, free subscriptions are available for journalists, federal elected officials, and employees of the Congress, courts, and executive branch. The TLJ web site is free access. However, copies of the TLJ Daily E-Mail Alert are not published in the web site until one month after writing. See, subscription information page.

Contact: 202-364-8882.
P.O. Box 4851, Washington DC, 20008.

Privacy Policy
Notices & Disclaimers
Copyright 1998 - 2006 David Carney, dba Tech Law Journal. All rights reserved.