10/6. President Bush signed HR 683, the "Trademark Dilution Revision Act of 2006". See, White House release.

Moseley v. V Secret. This bill responds to the Supreme Court's March 4, 2003 opinion [21 pages in PDF] in Moseley v. V Secret, a case involving whether the plaintiff in a lawsuit for violation of the Federal Trademark Dilution Act (FTDA) must show actual economic loss. The Sixth Circuit held that economic harm may be inferred. The Supreme Court reversed. Its opinion is also reported at 537 U.S. 418.

The Supreme Court wrote that "The relevant text of the FTDA ... provides that ``the owner of a famous mark´´ is entitled to injunctive relief against another person's commercial use of a mark or trade name if that use ``causes dilution of the distinctive quality´´ of the famous mark. 15 U. S. C. §1125(c)(1) (emphasis added). This text unambiguously requires a showing of actual dilution, rather than a likelihood of dilution."

See also, story titled "Supreme Court Rules in Trademark Dilution Case" in TLJ Daily E-Mail Alert No. 618, March 6, 2003.

Legislative History. Rep. Lamar Smith (R-TX), the Chairman of the House Judiciary Committee's (HJC) Subcommittee on Courts, the Internet and Intellectual Property (CIIP), introduced this bill on February 9, 2005.

The CIIP Subcommittee held a hearing on February 17, 2005. See, story titled "CIIP Subcommittee Holds Hearing On Trademark Dilution Revision Act" in TLJ Daily E-Mail Alert No. 1,081, February 23, 2005.

The CIIP Subcommittee approved the bill on March 3, 2005, and the full HJC amended and approved the bill on March 17, 2005. See also, House Report No. 109-23.

The House approved the bill under suspension of the rules on April 19, 2005, by a vote of 411-8. See, Roll Call No. 109.

The Senate then approved a different version of the bill on March 8, 2006. On September 25, the House approved the Senate version.

Bill Summary. The FTDA is codified at 15 U.S.C. § 1125(c). It is also known as Section 43(c) of the Lanham Act.

Subsection (c)(1) previously provided that "The owner of a famous mark shall be entitled, subject to the principles of equity and upon such terms as the court deems reasonable, to an injunction against another person’s commercial use in commerce of a mark or trade name, if such use begins after the mark has become famous and causes dilution of the distinctive quality of the mark, and to obtain such other relief as is provided in this subsection." It then enumerated several factors that the court may consider in determining whether a mark is distinctive and famous.

HR 683 amended this, so that it now provides, "Subject to the principles of equity, the owner of a famous mark that is distinctive, inherently or through acquired distinctiveness, shall be entitled to an injunction against another person who, at any time after the owner's mark has become famous, commences use of a mark or trade name in commerce that is likely to cause dilution by blurring or dilution by tarnishment of the famous mark, regardless of the presence or absence of actual or likely confusion, of competition, or of actual economic injury." (Emphasis added.)

The bill further provides that "a mark is famous if it is widely recognized by the general consuming public of the United States as a designation of source of the goods or services of the mark's owner. In determining whether a mark possesses the requisite degree of recognition, the court may consider all relevant factors, including the following:
  (i) The duration, extent, and geographic reach of advertising and publicity of the mark, whether advertised or publicized by the owner or third parties.
  (ii) The amount, volume, and geographic extent of sales of goods or services offered under the mark.
  (iii) The extent of actual recognition of the mark.
  (iv) Whether the mark was registered under the Act of March 3, 1881, or the Act of February 20, 1905, or on the principal register."

The bill further provides that "dilution by blurring" is "association arising from the similarity between a mark or trade name and a famous mark that impairs the distinctiveness of the famous mark. In determining whether a mark or trade name is likely to cause dilution by blurring, the court may consider all relevant factors, including the following:
  (i) The degree of similarity between the mark or trade name and the famous mark.
  (ii) The degree of inherent or acquired distinctiveness of the famous mark.
  (iii) The extent to which the owner of the famous mark is engaging in substantially exclusive use of the mark.
  (iv) The degree of recognition of the famous mark.
  (v) Whether the user of the mark or trade name intended to create an association with the famous mark.
  (vi) Any actual association between the mark or trade name and the famous mark."

Also, it provides that "dilution by tarnishment" is "association arising from the similarity between a mark or trade name and a famous mark that harms the reputation of the famous mark".

The bill also modified the list of exemptions. The bill provides that "The following shall not be actionable as dilution by blurring or dilution by tarnishment under this subsection:
  (A) Any fair use, including a nominative or descriptive fair use, or facilitation of such fair use, of a famous mark by another person other than as a designation of source for the person's own goods or services, including use in connection with--(i) advertising or promotion that permits consumers to compare goods or services; or (ii) identifying and parodying, criticizing, or commenting upon the famous mark owner or the goods or services of the famous mark owner.
  (B) All forms of news reporting and news commentary.
  (C) Any noncommercial use of a mark."

Reaction. The U.S. Chamber of Commerce praised the bill in a release. The Bruce Josten stated in this release that "Without it, American brand owners would be susceptible to having their reputations tarnished and the distinctiveness of their trademarks blurred". He added that "Since the Supreme Court's 2003 ruling in the case of Moseley v. V Secret, America's famous mark owners have been left without effective protection for their trademark. This bill will protect brand owners by providing a more precise and limited definition for what constitutes a famous trademark".

10/5. The Federal Communications Commission (FCC) released the agenda [PDF] for its event on Thursday, October 12, 2006, titled "Open Meeting". The FCC is scheduled to adopt several significant items.

AT&T BellSouth Merger. The FCC will consider a Memorandum Opinion and Order regarding the merger of AT&T and BellSouth, which is nominally an approval of the transfer of FCC licenses. See also, the FCC's web page for this merger review. This proceeding is WC Docket No.06-74.

White Space. The FCC will consider a First Report and Order and Further Notice of Proposed Rule Making in its proceeding titled "Unlicensed Operation in the TV Broadcast Bands", and numbered ET Docket No. 04-186. That is, this is the FCC's long awaited next step in its white space proceeding.

On May 13, 2004, the FCC adopted a notice of proposed rulemaking (NPRM) regarding use by unlicensed devices of broadcast television spectrum where the spectrum is not in use by broadcasters. The FCC released the text [38 pages in PDF] of this item on May 25, 2004. This NPRM is FCC 04-113 in ET Docket Nos. 04-186 and 02-380.

See also, story titled "FCC Adopts NPRM Regarding Unlicensed Use of Broadcast TV Spectrum" in TLJ Daily E-Mail Alert No. 898, May 14, 2004.

There are also stand alone bills pending in the House and Senate that address this issue. See, for example, S 2327, the "Wireless Innovation Act of 2006", introduced on February 17, 2006, by Sen. George Allen (R-VA) and others. See also, story titled "Sen. Allen Introduces Bill to Allow Unlicensed Wireless Use of Broadcast White Space" in TLJ Daily E-Mail Alert No. 1,314, February 21, 2006.

Also, the large communications regulation reform bill approved by the Senate Commerce Committee (SCC) on July 28, 2006, HR 5252 RS, contains white space provisions.

Title VI of the SCC bill would require the FCC to complete its broadcast white space rulemaking proceeding, to permit unlicensed, non-exclusive use of unassigned, non-licensed television broadcast channels. It states that "Within 270 days after the date of enactment of that Act, the Commission shall adopt technical and device rules in ET Docket No. 04–186 to facilitate the efficient use of eligible broadcast television frequencies by certified unlicensed devices, which shall include rules and procedures -- (1) to protect licensees from harmful interference from certified unlicensed devices; (2) to require certification of unlicensed devices designed to be operated in the eligible broadcast television frequencies ... (3) to require manufacturers of such devices to include a means of disabling or modifying the device remotely if the Commission determines that certain certified unlicensed devices may cause harmful interference to licensees; ..."

 See also, story titled "Mark Up of Title VI -- Use of Broadcast White Space" in TLJ Daily E-Mail Alert No. 1,404, July 5, 2006.

NOI on Broadband Industry Practices. The FCC will consider a Notice of Inquiry (NOI) regarding broadband industry practices. The FCC's agenda provides no elaboration on this item.

Interference in the 700 MHz Band. The FCC will consider an order regarding Qualcomm's request for declaratory ruling regarding the interference protection requirements applicable to the 700 MHz Band.

On January 14, 2005, Qualcomm filed Petition for Declaratory Ruling with the FCC. This proceeding is WT Docket No. 05-7. See, pages 1-25, pages 26-50, and pages 51-56 [PDF page numbers].

Qualcomm wrote in its petition that it "requests that the FCC issue a declaratory ruling that the interference calculation procedures contained in the Office of Engineering and Technology Bulletin No. 69 ("OET-69") are acceptable to demonstrate compliance with the TV/DTV interference protection criteria of Section 27.60 of the FCC Rules. Grant of the request will speed the deployment of QUALCOMM's innovative MediaFLO^TM service, a nationwide "mediacast" network delivering many channels of high quality video and audio content, as well as innovative mobile data applications, to third generation mobile phones a mass market prices on Channel 55, part of the Lower 700 MHz spectrum that the Commission auctioned in 2002 and 2003. In some areas of the country, until the DTV transition ends, QUALCOMM can only launch this new innovative service if it can coexist with the TV/DTV channels operating on channels adjacent to the or co-channel with QUALCOMM's Channel 55."

NOI on Video Competition. Finally, the FCC will consider a NOI seeking information to assist it in preparing its annual report on the status of competition in the market for the delivery of video programming.

This event is scheduled for 9:30 AM on Thursday, October 12, 2006 in the FCC's Commission Meeting Room, Room TW-C305, 445 12th Street, SW. The event will be webcast by the FCC. The FCC does not always consider all of the items on its published agenda. The FCC sometimes adds items to the agenda without providing the "one week" notice required 5 U.S.C. § 552b. The FCC does not always start its monthly meetings at the scheduled time. The FCC usually does not release at its meetings copies of the items that it adopts at its meetings.

10/6. The Department of Homeland Security (DHS) and the European Union (EU) released an agreement [3 pages in PDF] regarding the expanded use of passenger name record (PNR) data.

Secretary of Homeland Security Michael Chertoff stated in a release that under this agreement, the "U.S. Customs and Border Protection will have new flexibility to share PNR data with other counter-terrorism agencies within the U.S. government, carrying out the President’s mandate to remove obstacles to counter-terrorism information sharing. The new flexibility will apply to agencies within DHS as well as to the Department of Justice, the FBI, and other agencies with counter-terrorism responsibilities; sharing will be allowed for the investigation, analysis, and prevention of terrorism and related crimes."

Chertoff (at left) added that "the agreement will allow the department to receive PNR data earlier, thus increasing our ability to identify potential terrorists".

The EU wrote in its release that "The interim agreement enables PNR data in the reservation systems of air carriers to continue to be transferred to the US in the same way as under the previous Agreement. The US Administration may access electronically PNR data from air carriers' reservation/departure control systems located within the territory of the EU Member States, in accordance with specific undertakings. This system will be replaced in due course by one under which airlines in the EU will send the required data to the US. Under the interim Agreement, the EU will ensure that air carriers operating passenger flights in foreign air transportation to or from the US process PNR data contained in their automated reservation systems as required by the US Administration."

On May 30, 2006, the EU's Court of Justice (COJ) issued its judgment in European Parliament v. Council of the European Union, annulling the 2004 PNR agreement [7 pages in PDF] between the US and the EU. See also, COJ release [PDF] explaining the judgment. This annuled the Council of the European Union's decision (No. 2004/496/EC) dated May 17, 2004, regarding the "Agreement between the European Community and the United States of America on the processing and transfer of PNR data by Air Carriers to the United States Department of Homeland Security, Bureau of Customs and Border Protection". It also annuls the European Commission's decision (No. 2004/535/EC) dated May 14, 2004 on the "adequate protection of personal data contained in the Passenger Name Record of air passengers transferred to the United States Bureau of Customs and Border Protection".

The Electronic Privacy Information Center (EPIC) wrote in its web site that "The new agreement gives the Europeans greater control over the disclosure of passenger data to the United States. However, it leaves unresolved whether the United States has adequate privacy protections to safeguard the private information of European consumers."

10/4. The Department of the Interior's (DOI) Office of the Inspector General (OIG) released a report [15 pages in PDF] titled "Excessive Indulgences: Personal Use of the Internet at the Department of the Interior".

The report was written by Earl Devaney, who has been the Inspector General for the DOI since August of 1999.

He wrote in a cover memorandum to the Secretary of the Interior that "We discovered that computer users at the Department have continued to access sexually explicit and gambling websites due to the lack of consistency in Department controls over Internet use. While not specifically prohibited, we also discovered that computer users spent significant time at Internet auction and on-line gaming websites, costing an estimated 104,221 hours in potential lost productivity over the course of a year."

However, the DOI is a huge agency, with about 80,000 employees. 104,221 hours, divided by 80,000 employees, comes to an average of about 1.3 wasted hours per employee.

The methodology was to study web site access logs for only one week. However, data was not collected for all components of the DOI, so the IG's estimate may be low.

The report states that "We collected Internet usage logs from six Bureaus and offices (Bureau of Land Management (BLM), Bureau of Reclamation (BOR), Minerals Management Service (MMS), National Park Service (NPS), Office of Surface Mining (OSM), and US Geological Survey (USGS)) for a specific 7-day period.  We then extracted and analyzed log entries, which are generated each time a computer accesses a website, using widely-accepted lists of keywords and popular Internet addresses for each category.  These lists were not exhaustive, as website addresses can frequently change. Both Fish and Wildlife Service (FWS) and National Business Center (NBC) were unable to provide the data we requested. The Bureau of Indian Affairs (BIA) was not included in our review because of the Cobell Court’s injunction against Internet use by BIA."

The report also states that "we discovered over 1,000,000 log entries where 7,763 Department computer users spent over 2,004 hours accessing game and auction sites during that same week. Over a period of 1 year, these veritable shopping and gaming binges could account for 104,221 hours of lost productivity."

The report also found that filtering software failed to block access. It states that "We found the use of the web filtering tools provide some level of protection for the Bureaus that used them, but users were still able to gain access to prohibited sites despite the employment of web filtering software.  In a final spot check in August 2006, we attempted access to eight known sexually explicit and gambling websites on each system. We were able to access sexually explicit photographs through BLM, FWS, and OSM computer systems, but not through the BOR computer system.  Additionally, we were able to access gambling sites using BOR, FWS, and OSM computers, but not through the BLM computer system.  Based on our findings, we believe that the Department and Bureaus would do well to not be lulled into a false sense of security that these filtering tools provide a significant level of protection."

Columbus Day.

The House will not meet. It may return from it elections recess on Monday, November 13, 2006. The adjournment resolution, HConRes 483, provides for returning on Thursday, November 9, at 2:00 PM.

The Senate will not meet. See, HConRes 483.

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

10:00 AM. The Supreme Court will hear oral argument in Global Crossing v. Metrophones, Sup. Ct. No. 05-705, a case regarding whether 47 U.S.C. § 201(b) creates a private right of action for a provider of payphone services to sue a long distance carrier for alleged violations of the FCC's regulations concerning compensation for coinless payphone calls.

11:45 AM. Stuart Levey, the Department of the Treasury's Under Secretary for Terrorism and Financial Intelligence, will give a luncheon speech at the 2006 ABA/ABA Money Laundering Enforcement Conference. Location: Marriott Wardman Park Hotel, 2660 Woodley Road, NW.

12:15 - 2:00 PM. The Federal Communications Bar Association's (FCBA) Mass Media Practice Committee will host a brown bag lunch. The topic will be the "Digital Television Transition". The speaker will be Meredith Baker, Senior Advisor at the National Telecommunications and Information Administration (NTIA). For more information contact Erin Dozier at edozier at sheppardmullin dot com or 202-772-5312. Location: Fleischman and Walsh, Suite 600, 1919 Pennsylvania Ave., NW.

1:30 - 4:30 PM. The Department of Homeland Security's (DHS) National Infrastructure Advisory Council (NIAC) will hold a meeting. The agenda includes an item titled "Convergence of Physical and Cyber Technologies and Related Security Management Challenges". The speakers will include John Chambers (P/CEO of Cisco Systems), George Conrades (Executive Chairman of Akamai Technologies), and Gregory Peters (former P/CEO of Internap Network Services). The NIAC also accepts written public comments. See, notice in the Federal Register, September 27, 2006, Vol. 71, No. 187, at Pages 56541-56542. Location: National Press Club, 529 14th Street, NW.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking [22 pages in PDF] in a new proceeding titled "In the Matter of Amendment of Section 90.20(e)(6) of the Commission's Rules". This is a reaction to Lojack's petition for rulemaking relating to the use of spectrum for stolen vehicle recovery systems (SVRS). The FCC proposes to revise section 90.20(e)(6) of its rules "to permit increased mobile output power, to permit digital emissions in addition to the analog emissions currently authorized by the Rules, and to relax the limitations on duty cycles", among other things. The FCC adopted this item on July 19, 2006, and released it on July 24, 2006. It is FCC 06-107, in WT Docket No. 06-142. See, notice in the Federal Register, August 23, 2006, Vol. 71, No. 163, at Pages 49401-49405.

Deadline to submit initial comments to the Federal Communications Commission's (FCC) Federal-State Joint Board on Universal Service in response to the FCC's public notice [PDF] requesting comments regarding the use of reverse auctions to determine high cost universal service funding to eligible telecommunications carriers. This proceeding is WC Docket No. 05-337 and CC Docket No. 96-45. See, notice in the Federal Register, August 25, 2006, Vol. 71, No. 165, at Pages 50420-50421.

6:00 - 8:00 PM. The Federal Communications Bar Association (FCBA) will host a continuing legal education (CLE) seminar titled "FCC's Media Ownership Rules". Registrations and cancellations are due by 5:00 PM on October 9. The price to attend ranges from $50 to $125. See, registration form [PDF]. Location: Dow Lohnes, Suite 800, 1200 New Hampshire Ave., NW.

9:00 AM. The Department of Commerce's (DOC) Bureau of Industry and Security's (BIS) Deemed Export Advisory Committee (DEAC) will meet. See, notice in the Federal Register, September 22, 2006, Vol. 71, No. 184, at Pages 55429. Location: main lobby of the DOC's Hoover Building, 14th Street between Constitution and Pennsylvania Avenues, NW.

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).

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in BellSouth Telecommunications v. FCC, App. Ct. No. 05-1032. The case pertains to whether BellSouth discriminated in favor of its long distance subsidiary in violation of 47 U.S.C. § 272. However, the precise nature of either the facts or issues in this proceeding is not public information. See for example, heavily redacted brief [81 pages in PDF] of the Federal Communications Commission (FCC). Judges Tatel, Kavanaugh and Williams will preside. Location: Courtroom 20, 333 Constitution Ave., NW.

12:30 - 1:45 PM. The Federal Communications Bar Association's (FCBA) Transactional Practice Committee will host a brown bag lunch. The FCBA states that the topic will be the "forms of financing available to communications companies -- angel, VC, mezzanine, private equity, traditional loans, public offerings". The speakers will include Tara Giunta (Paul Hastings Janofsky & Walker) and Rebecca Arbogast (Stifel Nicolaus). RSVP to Christine Crowe at ccrowe at wbklaw dot com or 202-383-3334. Location: Paul Hastings, 875 15th St.,  NW.

2:00 - 3:00 PM. The President's National Security Telecommunications Advisory Committee (NSTAC) will hold a partially closed meeting by teleconference. The open portion of the meeting will pertain to the Emergency Communications and Interoperability Task Force (ECITF). The closed portion of the meeting will include a discussion of, and vote on, the Global Infrastructure Resiliency (GIR) Report. See, notice in the Federal Register, October 2, 2006, Vol. 71, No. 190, at Page 57991.

6:30 - 8:30 PM. The Federal Communications Bar Association's (FCBA) Legislative Practice Committee and Young Lawyers Committee will host an event title "Happy Hour". For more information, contact Paula Timmons at paula at paulatimmonsconsulting dot com or 202-255-1627 or Chris Fedeli at cfedeli at crblaw dot com or 202-828-9874. Location: Lounge 201, 201 Massachusetts Ave., NE.

Day one of a two day conference titled "Standards Bodies and Patent Pools: Key Legal and Business Developments". FTC Commissioner Pamela Harbour will give a speech titled "Standards Bodies and Patent Pools: Key Legal and Business Developments" on October 12. See, notice and agenda. Location: Wyndham Washington DC Hotel, 1400 M St., NW.

POSTPONED. 9:00 - 11:00 AM. The Progress & Freedom Foundation's (PFF) Digital Age Communications Act Project (DACA) will release a report containing recommendations of its Institutional Reform Working Group. The speakers will include Randolph May (Free State Foundation) and John Duffy (George Washington University School of Law). See, notice and registration page. See also, story titled "PFF Announces Digital Age Communications Act Project" in TLJ Daily E-Mail Alert No. 1,068, February 2, 2005. Breakfast will be served. Location: First Amendment Lounge, National Press Club, 529 14th St. NW, 13th Floor.

12:15 - 1:45 PM. The Federal Communications Bar Association's (FCBA) HLS/Emergency Communications Committee will host a brown bag lunch to plan future events. For more information contact Jennifer Manner at 703-390-2730 or jmanner at msvlp dot com. Location: Pillsbury Winthrop Shaw Pittman, 2400 N St., NW.

Day two of a two day conference titled "Standards Bodies and Patent Pools: Key Legal and Business Developments". See, notice and agenda. Location: Wyndham Washington DC Hotel, 1400 M St., NW.

6:00 - 8:15 PM. The Federal Communications Bar Association (FCBA) will host a continuing legal education (CLE) seminar titled "Client Creation, Conflicts and Confidentiality in the Administrative Process". The price to attend ranges from $50 to $125. See, registration form [PDF]. The deadline to register is 5:00 PM on October 12. Location: Wiley Rein & Fielding, 1776 K St., NW.

6:00 - 9:15 PM. The DC Bar Association will host a continuing legal education (CLE) seminar titled "How to Protect and Enforce Trademark Rights: A Primer". The speakers will include Shauna Wertheim (Roberts Mardula & Wertheim) and Steven Hollman (Hogan & Hartson). The price to attend ranges from $90-$135. For more information, call 202-626-3488. See, notice. Location: D.C. Bar Conference Center, 1250 H Street NW, B-1 Level.

Deadline to submit comments to the European Commission (EC) in response to its public consultation regarding possible regulation of "the use of mobile phones by children and young people". The EC seeks comments "linked to content and behaviour, such as access to harmful or illegal content, bullying (e.g. distribution of abusive or compromising messages and photos amongst children), grooming (e.g. strangers “making friends” with children with a view to meeting them), risks to the privacy of children, and the risk of unexpectedly high expense." See, EC release.

10/6. President Bush signed HR 1036, the "Copyright Royalty Judges Program Technical Corrections Act". See, White House release.

10/6. The Federal Communications Commission (FCC) released a Memorandum Opinion and Order [7 pages in PDF] in its proceeding titled "In the Matter of K. Rupert Murdoch (Transferor) and Fox Entertainment Group (Transferree) Applications for Transfer of Control of Fox Television Stations, Inc." The MOO states that "we grant these applications to transfer control". This MOO further states that "we also grant applicants’ request for waiver of the local ownership rule and grant applicants a permanent waiver of the newspaper/broadcast cross-ownership prohibition to permit continued ownership of The New York Post and WNYW(TV), and a temporary waiver of the newspaper/broadcast cross-ownership prohibition to permit continued ownership of The New York Post and WWOR-TV." This MOO is FCC 06-122.

10/6. The National Institute of Standards and Technology (NIST) released its Draft Special Publication 800-103 [70 pages in PDF] titled "An Ontology of Identity Credentials, Part I: Background and Formulation". The deadline to submit comments to the NIST is 5:00 PM on Wednesday, November 15, 2006.

10/4. The U.S. Court of Appeals (11thCir) issued its opinion [20 pages in PDF] in USA v. Eckhardt, affirming a conviction for violation of the Communications Decency Act in connection with leaving lewd and lascivious messages on a telephone answering machine. Eckhardt was convicted for violation of 47 U.S.C. § 223(a)(1)(C), which provides that "Whoever ... in interstate or foreign communications ... makes a telephone call or utilizes a telecommunications device, whether or not conversation or communication ensues, without disclosing his identity and with intent to annoy, abuse, threaten, or harass any person at the called number or who receives the communications ... shall be fined under title 18 or imprisoned not more than two years, or both". The Court of Appeals held that the statute is not void for vagueness or overbreadth. This case is USA v. Robert Eckhardt, U.S. Court of Appeals for the 11th Circuit, App. Ct. No. 05-12211, an appeal from the U.S. District Court for the Southern District of Florida.

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