11/14. The U.S. Court of Appeals (5thCir) issued its opinion [PDF] in Darby v. Time Warner, a bankruptcy case regarding cable service. The Court of Appeals held that cable television service is not a utility within the meaning of 11 U.S.C. § 366. This is the provision in the Bankruptcy Code that protects debtors from a cut off of service by a utility because of the filing of a bankruptcy petition.

The Court of Appeals did not mention internet access, but added in a footnote that "We express no opinion on the effect of §366 on telephone service that is bundled with cable service." The Court of Appeals wrote nothing about the status of cable modem service alone, which would enable a customer to obtain VOIP service from a third party service or software provider.

Background. Damon Darby filed a Chapter 13 bankruptcy petition in the U.S. Bankruptcy Court for the Southern District of Texas. He was a customer of Time Warner Cable (TW). The Court of Appeals opinion does not state whether or not he received multichannel video programming service, cable modem based internet access service, and/or voice communications service from TW.

Darby offered TW a deposit to reinstate his "cable service". TW refused. Darby filed a motion with the bankruptcy court seeking an order compelling TW to reinstate service pursuant to 11 U.S.C. § 366. The bankruptcy court denied the motion. The District Court affirmed. Darby brought the present emergency appeal to the Court of Appeals.

Statute. Subsection 366(a) provides, in full, that "Except as provided in subsection (b) of this section, a utility may not alter, refuse, or discontinue service to, or discriminate against, the trustee or the debtor solely on the basis of the commencement of a case under this title or that a debt owed by the debtor to such utility for service rendered before the order for relief was not paid when due."

However, Subsection 366(b) then provides, in full, that "Such utility may alter, refuse, or discontinue service if neither the trustee nor the debtor, within 20 days after the date of the order for relief, furnishes adequate assurance of payment, in the form of a deposit or other security, for service after such date. On request of a party in interest and after notice and a hearing, the court may order reasonable modification of the amount of the deposit or other security necessary to provide adequate assurance of payment."

Court of Appeals Opinion. The Court of Appeals affirmed. It wrote, and the legislative history of this section supports the conclusion, that Congress enacted this section to prevent monopoly gas, electric and telephone service providers from cutting off service to customers solely because they had filed a bankruptcy petition.

The Court of Appeals noted that there is competition now, and that Darby has other alternatives, such as satellite service.

The Court of Appeals wrote that "We hold that Time Warner is not a utility as contemplated by § 366", and that "cable service is not covered by § 366, and Time Warner is not required to reinstate Darby’s service despite his offer of adequate assurances of future payment."

The Court of Appeals opinion is not clear as to what service Darby received from Time Warner. Nor is it clear as to how this opinion might affect cable internet access, other internet access platforms, or other services enabled by such services.

The Court of Appeals refers to Darby's service several times as "cable service". It relies on a District Court opinion that involved "cable television". In the penultimate sentence, the Court of Appeals wrote that "Because cable television is neither a necessity nor would Darby be faced with crippling inconvenience in obtaining alternate service, Time Warner is not a utility as contemplated by § 366."

There is also a footnote to this sentence: "We express no opinion on the effect of §366 on telephone service that is bundled with cable service."

TLJ Analysis. The statute interpreted by the Court of Appeals was written at time when voice communications was provided by a regulated monopoly, and consisted of plain circuit switched analog voice service.

The policy argument for prohibiting automatic cut offs of bankruptcy petitioners' service was based both upon the monopoly status of the provider, and the essentiality of the service.

Multichannel video programming provided by cable companies is now neither a monopoly service (there is satellite service, increasing telephone company video service, and related services such as DVD sales and rentals) nor essential (it is largely entertainment).

Voice communications for most consumers is now longer obtained from a monopoly provider. However, voice service provided by a telephone company is used for communications with health service providers and public safety agencies, and hence, remains essential. Voice service provided by a cable company, whether provided as a circuit switched service, or as an internet protocol enabled service, is likewise essential. But so too is voice service provided by a third party VOIP service or software provider, when it runs over the broadband connection provided by a cable company, or any other broadband service provider.

The Court of Appeals opinion appears to hold only that a cable company's multichannel video programming service, when provided alone, is not covered by Section 366.

The rest is murk. The Court of Appeals opinion states that it does not address "telephone service that is bundled with cable service". But, the Court of Appeals failed to elaborate on its use of the terms "telephone service" and "bundled with". The Court of Appeals did not explain whether or not VOIP service is a "telephone service". Nor did the Court of Appeals explain whether the term "bundled with" means only services provided by the cable company, or also voice services provided or enabled by third parties.

The Court of Appeals opinion has nothing to say about what other broadband enabled services, other than voice, might be essential.

Were the Court of Appeals to address these questions in a future opinion, the essentiality component of the policy analysis would weigh in favor of extending Section 366 status to internet access service provided by a cable company, as well as to voice service provided by a cable company (regardless of the technology), and to any third party service that enables voice communications provided over cable.

The same argument would also apply to any broadband service provider, as well as to any provider of a VOIP service that utilizes any broadband service.

On the other hand, for few consumers are any of these services available from only a single service provider, so the monopoly component of the policy analysis would weigh against extending Section 366 status.

This case is Damon Fitzgerald Darby v. Time Warner Cable, Inc., U.S. Court of Appeals for the 5th Circuit, App. Ct. No. 05-20931, an appeal from the U.S. District Court for the Southern District of Texas. Judge Carl Stewart wrote the opinion of the Court of Appeals, in which Judges Edith Jones and Smith joined.

11/13. The Supreme Court denied certiorari in BASF Corporation v. Peterson, a freedom of speech case. This lets stand the opinion of the Supreme Court of Minnesota. The Supreme Court passed up an opportunity to protect the free speech rights of publishers of trade publications, and to bring clarity to its regime that affords different levels of constitutional protection to different speakers.

The Supreme Court wrote that "The motion of Chamber of Commerce of the United States of America for leave to file a brief as amicus curiae is granted. The motion of CropLife America for leave to file a brief as amicus curiae is granted. The motion of Product Liability Advisory Council, Inc. for leave to file a brief as amicus curiae is granted. The petition for a writ of certiorari is denied." See, Order List [13 pages in PDF] at page 11.

This is a class action brought in the state of Minnesota, under the New Jersey Consumer Fraud Act, based upon BASF's labeling of pesticides, and a BASF sponsored trade magazine article about pesticides. The class action plaintiffs prevailed in the trial court. The Minnesota Court of Appeals affirmed, rejecting BASF's First Amendment arguments. The Supreme Court of Minnesota declined to address the First Amendment issues.

BASF wrote in its Petition for Writ of Certiorari [PDF] to the US Supreme Court that one of the issues is "Whether the First Amendment prohibits a state law claim that a manufacturer committed an unconscionable commercial practice by (a) distributing a truthful magazine article on a subject of public importance and (b) accurately reporting to responsible government officials the unlawful use of the manufacturer’s products."

See also, amicus brief [29 pages in PDF] of the U.S. Chamber of Commerce, which urged the Supreme Court to grant certiorari and reverse the judgment of the Supreme Court of Minnesota. It wrote that "For years, the Court has sent conflicting signals on the proper definition of ``commercial speech.´´ The resulting jurisprudential uncertainty has led the lower courts to take widely diverging approaches in determining when corporate speech is subject to reduced protection under the First Amendment. In this case, the decision below deepens that conflict by treating a breathtakingly broad class of speech as “commercial,” which menaces our system of free expression. According to Minnesota's courts, commercial speech includes all statements of fact: (i) made by persons engaged in commerce (including all businesses and their public relations firms); (ii) made to an audience including actual or potential purchasers of their products (including readers of a trade journal); and (iii) addressing any matter in which the speaker has some form of commercial interest ..." (Parentheses in original.)

This case is BASF Corporation v. Ronald Peterson, et al., Sup. Ct. No. 06-144, a petition for writ of certiorari to the Supreme Court of the Minnesota. The Supreme Court of Minnesota case is C3-02-857.

10/31. The Federal Trade Commission (FTC) filed a complaint [17 pages in PDF] in U.S. District Court (DNev) against ERG Ventures, LLC, dba Media Motor, and others, alleging violation of Section 5(a) of the FTC Act in connection with their distribution of exploitive malware. This is the FTC's ninth malicious software related action.

The FTC also obtained an Ex Parte Temporary Restraining Order and Order to Show Cause [19 pages in PDF] (TRO).

The FTC has only civil authority. It cannot obtain fines in Section 5(a) cases. Moreover, Section 5(a), which is codified at 15 U.S.C. § 45(a), merely provides that "Unfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce, are hereby declared unlawful." Yet, the TRO in this case demonstrates that the FTC can obtain, with notice or hearing, relief that may be more disruptive to a defendant's business operations than some criminal prosecutors can obtain upon final judgment, such as an immediate computer shut down order, and a financial institution asset freeze order.

The complaint alleges that defendants "have surreptitiously distributed and installed exploitive software program onto consumers' computers through a sophisticated and expansive network of affiliates."

It continues that "In order to maximize the number of installations -- and their resulting profits -- the ERG defendants utilize deception to trick consumers into downloading and installing the package of exploitive software programs they have assembled."

The complaint alleges that the ERG defendants operate web sites that offer free software, such as screensavers and video files, but that "Hidden within this purportedly free software is code ... that, once installed, silently activates itself on the consumer's computer and proceeds to covertly download and install the package of exploitive software programs ..." The complaint states that the ERG defendants have developed a network of web site operators, some of whom are also named as defendants, who also engage in deceptive practices to covertly download and install this software onto consumers' computers.

The complaint also lists the effects of this software: "1) changing consumers' default home pages; 2) adding a difficult-to-remove toolbar to consumers' Internet browser that displays advertising; 3) tracking consumers' Internet activity; 4) generating repeated and occasionally pornographic pop up advertising; 5) adding advertising icons to consumers desktops; 6) altering consumers' Internet browser settings; 7) degrading computer performance; and 9) attacking and disabling consumers' anti-spyware software. By design, these exploitive software programs are extremely difficult for consumers to uninstall."

The TRO temporarily enjoins defendants from installing "any Software directly or indirectly installed on consumers' computers by the ERG Defendants: 1) failing to clearly and conspicuously disclose the name and function of all such Software (the "Required Disclosure"); and 2) failing to provide, immediately after the Required Disclosure is made, a clearly and conspicuously disclosed option to prevent the installation of all such Software, which when exercised by the consumer, prevents the installation of all such Software."

The TRO also temporarily enjoins defendants from installing software that,

   "A. tracks consumers’ Internet activity;
   B. changes consumers’ preferred Internet homepage settings;
   C. inserts an advertising toolbar onto consumers' Internet browsers;
   D. generates numerous "pop up" advertisements on consumers' computer screens even when consumers' Internet browsers are closed;
   E. adds advertising icons to the computers' desktop;
   F. tampers with, disables or otherwise alters the performance of other programs, including anti-spyware and anti-virus programs; or
   G. alters Internet browser security settings, including the list of safe or trusted websites."

The TRO also freezes assets, imposes record keeping requirements, and imposes data and records retention requirements upon defendants. It prohibits defendants from destroying or altering "all computer data and storage media (including but not limited to floppy disks, hard drives, CD-ROMS, zip disks, punch cards, magnetic tape, backup tapes, and computer chip and any and all equipment needed to read any such material)". (Parentheses in original)

Moreover, the TRO provides that "In order to preserve all active and inactive computer data the Corporate Defendants and Individual Defendants shall immediately upon service of this order power down and only then unplug any and all computers in their control that are being used or have been used in connection with their Internet marketing and distribution activities and shall cease suing (sic) such computers until ..." (The word "suing" is likely a typographical error for the word using.)

The TRO provides three options for defendants to restart computers, but only if one is performed within 24 hours. TLJ spoke with a FTC representative who declined to discuss how this provision of the TRO has been implemented in this case.

The TRO also requires that certain defendants provide a verified statement containing specified information about all of their software providers.

The TRO also affects persons and entities who are neither named as defendants, nor accused of wrongdoing. The TRO imposes data retention and asset freeze requirements upon any financial institution served with a copy of the TRO. It also requires entities served to deny access to certain safe deposit boxes.

The TRO also require non-parties served with the TRO to disclose within five days certain specified information that would typically be acquired through the civil discovery process.

The TRO states that there will be a hearing on a motion for preliminary injunction on November 14. This has been rescheduled for Wednesday, November 22.

The FTC also issued a release that states that "The U.S. Attorney's Office in Washington, D.C. is engaged in a parallel criminal investigation of the defendants in which search warrants were executed. These investigations demonstrate the joint commitment of the FTC and the Department of Justice to combat spyware." The USAO did not immediately return a phone call from TLJ.

The FTC case is Federal Trade Commission v. ERG Ventures LLC, et al., U.S. District Court for the District of Nevada, D.C. No. 3:06-CV-00578-LRH-VPC.

11/13. The Federal Trade Commission (FTC) announced numerous recent promotions and new hires. See, FTC release.

Bill Cohen was named Deputy General Counsel for Policy Studies at the FTC. He has worked on FTC hearings and reports on antitrust issues involving patent policy and state action protections. He was also the project manager for innovation in the FTC's hearings on global and innovation based competition. He was also an Attorney Advisor to former Chairman Janet Steiger.

Karen Grimm was named Assistant General Counsel for Policy Studies. She previously worked for the law firm of Sutherland Asbill & Brennan.

Suzanne Michel was named Deputy Assistant Director of the Office of Policy Coordination in the Bureau of Competition. She was previously the FTC's Chief Counsel for Intellectual Property. The FTC stated that she will "continue to develop the Bureau's intellectual property initiatives".

James Cooper, an economist who has worked on real estate issues, was named Deputy Director in the Office of Policy Planning. He was previous an Assistant Director.

Greg Luib was named Assistant Director of the Office of Policy Planning. He was previously an Attorney Advisor. He worked on the FTC's Noerr Pennington doctrine report, and on the formation of the FTC's Internet Access Task Force.

Alden Abbott was named Associate Director of the Bureau of Competition. He was previously Assistant Director of the Office of Policy and Coordination. Before that, he worked at the Department of Commerce. He is also a member of the part time faculty at the George Mason University law school.

Sean Gates was named Deputy Assistant Director in the Anticompetitive Practices Division. He was previously a senior staff attorney in the Division. He worked on the Union Oil Company of California matter.

Peter Richman was named Deputy Assistant Director for the Mergers III Division. He was previously a senior attorney in the Division. Jolanta Sterbenz was named Deputy Assistant Director for the Mergers III Division. She currently works for the law firm of Hogan & Hartson. Richman and Sterbenz have both worked on energy industry matters, which are part of the responsibility of Mergers III. However, this Division also handles software.

Jeanine Balbach was named Chief of Staff of the Bureau of Competition. She was previously an assistant to the Director, a staff attorney in the Mergers II Division, and an Attorney Advisor to former Chairman Timothy Muris.

Mary Beth Richards was named Deputy Director of the Bureau of Consumer Protection. She is currently Deputy Bureau Chief and Chief of Staff of the Federal Communications Commission's (FCC) Consumer and Governmental Affairs Bureau. She will start on November 27, 2006. See, separate FTC release.

11/13. The Supreme Court issued an order in KSR International v. Teleflex, a case regarding patent obviousness that is scheduled for oral argument on November 28, 2006. The Supreme Court wrote that "The motions of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument are granted." See, Order List [13 pages in PDF] at page 1. The question presented [PDF] is "Whether the Federal Circuit has erred in holding that a claimed invention cannot be held "obvious", and thus unpatentable under 35 U.S.C. § 103(a), in the absence of some proven ``'teaching, suggestion, or motivation' that would have led a person of ordinary skill in the art to combine the relevant prior art teachings in the manner claimed.´´". (Hyperlinks added.) See also, amicus brief of the Office of the Solicitor General, and story titled "Supreme Court Grants Cert in Patent Obviousness Case" in TLJ Daily E-Mail Alert No. 1,399, June 26, 2006. See also, Supreme Court docket. This is Sup. Ct. No. 04-1350.

11/13. The U.S. Court of Appeals (1stCir) issued its opinion in John Hancock v. Abbott Laboratories, affirming the judgment of the District Court for Abbott. This is a contract interpretation dispute between two companies that jointly financed the development of pharmaceutical compounds, with profits to be shared. John Hancock filed a complaint in U.S. District Court (DMass) against Abbott, based upon diversity of citizenship, seeking declaratory judgment that Abbott's delayed investment allowed John Hancock to terminate its payments but retain its share of any future profits. The District Court applied Illinois contract law, pursuant to a choice of law clause in the contract, and granted judgment to John Hancock. This case is John Hancock Life Insurance Company, et al. v. Abbott Laboratories, U.S. Court of Appeals for the 1st Circuit, App. Ct. No. 05-2710, an appeal from the U.S. District Court for the District of Massachusetts, Judge Douglas Woodlock presiding. Judge Lipez wrote the opinion of the Court of Appeals, in which Judges Stafford and Torruella joined.

11/13. The Small Business Administration (SBA) published a notice in the Federal Register stating that, effective November 28, 2006 it "is denying a request for a waiver of the Nonmanufacturer Rule for Personal Computers". See, Federal Register, November 13, 2006, Vol. 71, No. 218, at Page 66214.

10/26. The Privacy and Civil Liberties Oversight Board (PCLOB) announced that it seeks comments or suggestions from the public regarding watch list redress.

The PCLOB's notice states that "Processes currently exist to redress errors and ameliorate false positives associated with the use of watch list data for aviation and other security screening purposes. Efforts to address, enhance, conform, and potentially streamline these procedures are ongoing throughout the Federal government, and the Board is assisting relevant executive branch departments and agencies in those efforts. The Board seeks any comments, suggestions or other information from members of the public who have knowledge on this subject."

This notice also states that under the Terrorist Screening Center's (TSC) supervision "the Terrorist Screening Database (TSDB) was created to compile the most thorough, accurate and current information possible about individuals known or suspected to be or to have been engaged in conduct advancing terrorism. This database consolidates the federal government's terrorism screening databases into a single integrated database and provides for its appropriate and lawful use in screening processes administered by federal, state, local, and tribal authorities."

There is no deadline to submit comments to the PCLOB.

In addition, on Wednesday, December 6, 2006, the Department of Homeland Security's (DHS) Data Privacy and Integrity Advisory Committee (DPIAC) will meet in Miami Beach, Florida. See, notice in the Federal Register, November 14, 2006, Vol. 71, No. 219, at Page 66340.

The House will meet at 10:00 AM for legislative business. It will consider several non-technology related items under suspension of the rules. See, Republican Whip Notice.

9:00 AM - 4:00 PM. Day one of a two day public meeting of the Federal Accounting Standards Advisory Board (FASAB). See, notice in the Federal Register, July 12, 2006, Vol. 71, No. 133, at Pages 39318. Location: Room 7C13, GAO Building, 441 G St., NW.

9:30 AM. The House Judiciary Committeee (HJC) will hold a hearing on HR 5304, the "Preventing Harassment through Outbound Number Enforcement (PHONE) Act". This bill would criminalize the modification of caller ID information with intent to mislead. See, notice. Press contact: Jeff Lungren or Terry Shawn at 202-225-2492. Location: Room 2141, Rayburn Building.

9:30 AM - 12:00 PM. The Department of Justice's (DOJ) Antitrust Division and the Federal Trade Commission (FTC) will hold another of their series of hearings on single-firm conduct. This hearing will address exclusive dealing. The speakers will be Jonathan Jacobson (Wilson Sonsini Goodrich & Rosati), Howard Marvel (Ohio State University), Richard Steuer (Mayer Brown Rowe & Maw), Mary Sullivan (George Washington University), and Joshua Wright (George Mason University School of Law). See, notice. Location: Conference Room A, FTC Conference Center, 601 Pennsylvania Ave., NW.

12:00 NOON. The Federal Communications Bar Association (FCBA) will host a lunch. The speaker will be FCC Commissioner Robert McDowell. See, registration form [PDF]. Prices vary. Registrations and cancellations are due by 5:00 PM on November 9. Location: Mayflower Hotel, 1127 Connecticut Ave., NW.

12:00 NOON - 2:00 PM. The DC Bar Association will host a panel discussion titled "Counterfeiting -- Defining the Problem and Providing Solutions". The speakers will include Brian Brokate (Gibney Anthony & Flaherty), Travis Johnson (International AntiCounterfeiting Coalition), and Leigh Ann Lindquist (Sughrue Mion). The price to attend ranges from $15 to $30. For more information, call 202-626-3463. See, notice. Location: Bell Labs, Suite 620W, 1100 New York Ave., NW.

12:00 NOON - 1:30 PM. The Center for American Progress (CAP) will host a panel discussion titled "Attacks on Our Courts: Justice O'Connor's Warning". The speakers will address judicial independence and criticism of judicial decisions. The speakers will be former Rep. Bob Barr (R-GA), Barry Friedman (New York University School of Law), Dahlia Lithwick (Slate.com), Caprice Roberts (West Virginia College of Law), and Melody Barnes (CAP). See, notice. Lunch will be served at 11:30 AM. Location: 1333 H St. NW, 10th Floor.

1:30 AM - 4:00 PM. The Department of Justice's (DOJ) Antitrust Division and the Federal Trade Commission (FTC) will hold another of their series of hearings on single-firm conduct. This hearing will address exclusive dealing. The speakers will be Stephen Calkins (Wayne State University Law School), Benjamin Klein (UCLA), Abbott Lipsky (Latham & Watkins), and Joseph Farrell (University of California at Berkeley). Farrell was previously chief economist at the FCC and Antitrust Division. See, notice. Location: Conference Room A, FTC Conference Center, 601 Pennsylvania Ave., NW.

5:00 PM. Deadline to submit comments to the National Institute of Standards and Technology (NIST) regarding its Draft Special Publication 800-103 [70 pages in PDF] titled "An Ontology of Identity Credentials, Part I: Background and Formulation".

Day three of a five day meeting of the Department of Commerce's Judges Panel of the Malcolm Baldrige National Quality Award. See, notice in the Federal Register, October 20, 2006, Vol. 71, No. 203, Pages 61958-61959. Location: National Institute of Standards and Technology, Building 222, Room A230, Gaithersburg, MD.

Deadline to submit comments to the Office of the U.S. Trade Representative (OUSTR) regarding the European Communities (EC) complaint to the World Trade Organization (WTO) regarding U.S. zeroing and anti-dumping duty orders on certain products from the EC. See, notice in the Federal Register, October 27, 2006, Vol. 71, No. 208, at Pages 63053-63055.

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

8:00 AM - 5:00 PM. Day one of a two day meeting of the National Science Foundation's (NSF) Advisory Committee for Engineering. The agenda includes "Critical Infrastructure Systems", "New Frontiers in Nanotechnology", and "Update on Cyberinfrastructure and Simulation-Based Engineering Science". See, notice in the Federal Register, October 17, 2006, Vol. 71, No. 200, at Page 61073. Location: NSF, 4201 Wilson Blvd., Room 1235, Arlington, VA.

9:00 AM - 4:00 PM. Day two of a two day public meeting of the Federal Accounting Standards Advisory Board (FASAB). See, notice in the Federal Register, July 12, 2006, Vol. 71, No. 133, at Pages 39318. Location: Room 7C13, GAO Building, 441 G St., NW.

9:30 AM. The Senate Judiciary Committee (SJC) will hold a hearing titled "Oversight of the Civil Rights Division". The witnesses will include Wan Kim (Assistant Attorney General in charge of the Civil Rights Division), Michael Carvin (Jones Day), Ted Shaw (NAACP Legal Defense and Educational Fund), Robert Driscoll (Alston & Bird), and Joseph Rich (Lawyer's Committee for Civil Rights Under Law). See, notice. Press contact: Courtney Boone at Courtney_Boone at judiciary-rep dot senate dot gov or 202-224-5225. Location: Room 226, Dirksen Building.

10:30 AM - 12:00 NOON. The Department of State's (DOS) International Telecommunication Advisory Committee (ITAC) will meet to discuss proposed U.S. contributions to the Committee on Information Services and Policy (CISP) and Working Party on the Information Economy (WPIE) meetings of the Organization for Economic Co-operation and Development (OECD). See, notice in the Federal Register, October 31, 2006, Vol. 71, No. 210, at Page 63828. Location: Room 2533A, Harry Truman Building.

12:15 - 1:30 PM. The Federal Communications Bar Association's (FCBA) Communications Law, Copyright, and Digital Rights Management Committee will host a brown bag lunch titled "Copyright and the Internet". The speakers will be Rick Lane (Newscorp) and Jonathan Potter (Digital Media Association). RSVP by November 13 to Ben Golant at bgol at loc dot gov or 202-707-9127. Location: National Association of Broadcasters (NAB), 1771 N Street, NW.

12:30 - 2:00 PM. The DC Bar Association will host a panel discussion titled "CALEA Implementation: A Practical Overview". The speakers will include Maura Quinn (Unit Chief, CALEA Implementation Unit, FBI), Paul Kouroupas (VP, Regulatory Affairs, Global Crossing), Tony Rutkowski (VP, Regulatory, Verisign), and Matthew Brill (Latham & Watkins). The price to attend ranges from $15 to $20. For more information, call 202-626-3463. See, notice. Location: D.C. Bar Conference Center, 1250 H Street NW, B-1 Level.

6:00 - 8:15 PM. The DC Bar Association will host a continuing legal education (CLE) seminar titled "Trade Secrets in the District of Columbia, Maryland and Virginia". The speakers will include Milton Babirak (Babirak Vangellow & Carr). The price to attend ranges from $90 to $135. For more information, call 202-626-3488. See, notice. Location: D.C. Bar Conference Center, 1250 H Street NW, B-1 Level.

7:00 - 9:30 PM. The Federal Communications Bar Association's (FCBA) Young Lawyers Committee and the FCBA Foundation will host an event titled "17th Annual Charity Auction". See, notice. Location: Marriott at Metro Center, 775 12th Street, NW.

Day one of a three day convention hosted by the Federal Society. At 12:00 NOON - 1:30 PM, there will be a panel discussion titled "Telecommunications: Net Neutrality: Battle of the Titans". The speakers will be William Barr (Verizon), Paul Misener (Amazon), Timothy Wu (Columbia University Law School), Christopher Yoo (Vanderbilt University Law School), and David McIntosh (Mayer Brown). This panel will be in the East Room. See, notice and schedule. Location: Mayflower Hotel, 1127 Connecticut Ave., NW.

Day four of a five day meeting of the Department of Commerce's Judges Panel of the Malcolm Baldrige National Quality Award. See, notice in the Federal Register, October 20, 2006, Vol. 71, No. 203, Pages 61958-61959. Location: National Institute of Standards and Technology, Building 222, Room A230, Gaithersburg, MD.

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

8:00 AM - 12:00 NOON Day two of a two day meeting of the National Science Foundation's (NSF) Advisory Committee for Engineering. The agenda includes "Critical Infrastructure Systems", "New Frontiers in Nanotechnology", and "Update on Cyberinfrastructure and Simulation-Based Engineering Science". See, notice in the Federal Register, October 17, 2006, Vol. 71, No. 200, at Page 61073. Location: NSF, 4201 Wilson Blvd., Room 1235, Arlington, VA.

Day two of a three day convention hosted by the Federal Society. At 3:30 - 4:45 PM there will be a panel discussion titled "Intellectual Property: Does IP Harm or Help Developing Countries?" The speakers will be Alex Azar (Deputy Secretary, Department of Health and Human Services), Graeme Dinwoodie (Chicago-Kent College of Law), Jerome Reichman (Duke University School of Law), Robert Sherwood (Intellectual Property Practice Group), and Bruce Lehman (Akin Gump). This panel will be in the Colonial Room. See, notice and schedule. Location: Mayflower Hotel, 1127 Connecticut Ave., NW.

Day five of a five day meeting of the Department of Commerce's Judges Panel of the Malcolm Baldrige National Quality Award. See, notice in the Federal Register, October 20, 2006, Vol. 71, No. 203, Pages 61958-61959. Location: National Institute of Standards and Technology, Building 222, Room A230, Gaithersburg, MD.

Deadline to submit comments to the National Institute of Standards and Technology (NIST) regarding its Draft Special Publication 800-53 [176 pages in PDF] titled "Recommended Security Controls for Federal Information Systems". This is Revision 1, Final Public Draft. See also, mark up copy [186 pages in PDF].

? Deadline to submit comments to the Department of Justice's (DOJ) Antitrust Division's Telecommunications & Media Enforcement Section, regarding the Complaint, proposed Final Judgment, Preservation of Assets Stipulation, or Competitive Impact Statement in U.S. v. ALLTEL. This is the Antitrust Division's action, brought pursuant to Section 7 of the Clayton Act, which is codified at 15 U.S.C. § 18, and proposed settlement, regarding ALLTEL's acquisition of Midwest Wireless. The Antitrust Procedures and Penalties Act, which is codified at 15 U.S.C. § 16, requires publication of a notice in the Federal Register, and a sixty day public comment period. The notice does not state the deadline. However, November 19 is 60 days after September 20. See, notice in the Federal Register, September 20, 2006, Vol. 71, No. 182, Pages 55015-55028.

5:00 PDT. Deadline to submit comments to the Internet Corporation for Assigned Names and Numbers (ICANN) regarding Global Name Registry Ltd.'s (GNR) proposal for the limited release of two character names. See, notice.

Deadline to submit initial comments to the Federal Communications Commission (FCC) regarding Autotel's petition for preemption of the jurisdiction of the Arizona Corporation Commission with respect to its decisions to dismiss Autotel’s request for arbitration of an interconnection agreement with Citizens Utilities Rural Company, Inc. and Autotel’s request for termination of the rural exemption under section 251(f) of the Act. See, FCC Public Notice [PDF] (DA 06-2083). This proceeding is WT Docket No. 06-194.

12:00 NOON - 1:15 PM. The DC Bar Association will host a seminar titled "50 Hot Technology Tips, Tricks & Web Sites for Lawyers". The speaker will be Reid Trautz. The price to attend ranges from $15 to $20. For more information, call 202-626-3463. See, notice. Location: D.C. Bar Conference Center, 1250 H Street NW, B-1 Level.

12:15 PM. The Federal Communications Bar Association's (FCBA) Common Carrier Committee will host a brown bag lunch. This is a planning meeting. RSVP to Myra Creeks at Myra dot Creeks at att dot com. Location: AT&T, 2nd floor, 1133 21st Street, NW.

EXTENDED TO DECEMBER 21. Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Further Notice of Proposed Rulemaking (FNPRM) regarding its media ownership rules. The FCC adopted this FNPRM on July 21, 2006, and released the text [36 pages in PDF] on July 24, 2006. See also, story titled "FCC Adopts FNPRM on Rules Regulating Ownership of Media" in TLJ Daily E-Mail Alert No. 1,397, June 22, 2006. This FNPRM is FCC 06-93 in MB Docket No. 02-277, MM Docket No. 01-235, MM Docket No. 01-317, MM Docket No. 00-244, and MB Docket Nos. 06-121. See, order [PDF] extending deadlines.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to National LambdaRail's petition for reconsideration or clarification of the FCC's Order establishing a rural telehealth and telemedicine pilot subsidy program. See, FCC Public Notice (DA 06-2279). The FCC's order is FCC 06-144 in WC Docket No. 02-60.

Deadline to submit comments to the Department of Commerce's Bureau of Industry and Security (BIS) regarding its annual review of the foreign policy based controls in its Export Administration Regulations (EAR), which are implemented pursuant to section 6 of the Export Administration Act of 1979, as expired. These rules regulate, among other things, the export of certain encryption and software products. The BIS states that it seeks comments on many topics, including "The likelihood that such controls will achieve the intended foreign policy purpose, in light of other factors, including the availability from other countries of the goods, software or technology proposed for such controls". See, notice in the Federal Register, October 23, 2006, Vol. 71, No. 204, at Pages 62065-62067.

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