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November 29, 2006, Alert No. 1,495.
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7th Circuit Holds Illinois Video Game Law Unconstitutional

11/28. The U.S. Court of Appeals (7thCir) issued its opinion [21 pages in PDF] in Entertainment Software Association v. Blogojevich, a constitutional challenge to the Illinois Sexually Explicit Video Game Law (SEVGL). The Court of Appeals affirmed the judgment of the District Court that the statute violates the First Amendment.

The Court of Appeals held that there are numerous constitutional infirmities with the statute. It held that the state's criminalization of the sale of "sexually explicit" video games to minors is overbroad, not narrowly tailored, and is not the least restrictive alternative. It also held that the state's mandating of labels on games and signs in stores constitutes impermissible compelled speech.

The Illinois legislature enacted the SEVGL, which requires video game retailers to place a four square inch label with the number 18 on any "sexually explicit" video game. It also requires video game retailers to place a sign in their stores explaining the video game rating system and to provide customers with brochures about the video game rating system. It also criminalizes the sale or rental of sexually explicit video games to minors.

The legislature also enacted a related Violent Video Game Law (VVGL) that is not at issue on appeal.

The SEVGL defines "sexually explicit" video games as those that "the average person, applying contemporary community standards would find, with respect to minors, is designed to appeal or pander to the prurient interest and depict or represent in a manner patently offensive with respect to minors, an actual or simulated sexual act or sexual contact, an actual or simulated normal or perverted sexual act or a lewd exhibition of the genitals or post-pubescent female breast."

The Entertainment Software Association (ESA) and other representatives of video game manufacturers and retailers filed a complaint in U.S. District Court (NDIll) against Rod Blagojevich, in his capacity as Governor of of the state of Illinois, and other state officials, alleging that the statute violates the First Amendment.

The District Court held that both the SEVGL and VVGL are unconstitutional under the First Amendment, as applied to the states via the Fourteenth Amendment, for not being narrowly tailored, and for being compelled speech.

Illinois filed the present appeal, but only as to the SEVGL. The Court of Appeals affirmed.

It first addressed whether the statute is narrowly tailored. It reasoned that the SEVGL is a content based restriction on speech to which the strict scrutiny standard applies. To pass scrutiny it "must be narrowly tailored to promote a compelling Government interest."

The Court of Appeals concluded that shielding children from indecent sexual material and assisting parents in protecting their children from that material is a compelling government interest. However, it concluded that the SEVGL is not narrowly tailored to promote this interest.

The Court wrote that Illinois argued that the SEVGL only affects minors. But, the Court wrote, "our narrow tailoring inquiry must be broader than the question of whether adults will be affected by the challenged legislation. The Constitution also requires us to ask whether legislation unduly burdens the First Amendment rights of minors."

The Court of Appeals turned for authority to the 1968 opinion of the Supreme Court in Ginsberg v. New York, which is reported at 390 U.S. 629, and the 1973 opinion of the Supreme Court in Miller v. California, which is reported at 413 U.S. 15. These cases both articulated three prong tests for statutes that regulate material intended for minors.

The Court of Appeals concluded that Illinois drafted its statutory definition of "sexually explicit" material with the first two prongs in mind, but failed to include language that would satisfy either the third prong of the Ginsberg test ("utterly without redeeming social importance for minors") or the third prong of the Miller test ("taken as a whole, do not have serious literary, artistic, political, or scientific value"). Hence, it concluded that "These deficiencies are sufficient for this court to conclude that the statute is not narrowly tailored and is overbroad."

The Court of Appeals added that even if the statute were to satisfy the Ginsberg/Miller test, "the statute could still not survive strict scrutiny because the plaintiffs have identified other less restrictive alternatives to the SEVGL. Most obviously, the State could have simply passed legislation increasing awareness among parents of the voluntary ESRB ratings system".

The Court of Appeals continued. It also held that the SEVGL's labeling and signage requirements are compelled speech in violation of the First Amendment.

This case is Entertainment Software Association, et al. v. Rod Blagojevich, et al., U.S. Court of Appeals for the 7th Circuit, App. Ct. Nos. 06-1012, 06-1048 and 06-1161, appeals from the U.S. District Court for the Northern District of Illinois, Eastern Division, D.C. No. 05 C 4265, Judge Matthew Kennelly presiding. Judge Williams wrote the opinion of the Court of Appeals, in which Judges Bauer and Rovner joined.

FCC Seeks Comments on 10 Year Old Regulations

11/29. The Federal Communications Commission (FCC) published a notice in the Federal Register (FR) requesting public comments regarding its review of regulations, pursuant to the Regulatory Flexibility Act of 1980, of regulations that become ten years old in 2006.

The Act requires the FCC to determine whether such regulations should be changed, amended, or rescinded.

This FR notice includes a list of relevant regulations. The list includes rules regarding radio frequency device regulation of CPU boards and computer power supplies, CMRS interconnection, antenna structures, satellite communications, record keeping and reporting by common carriers, interconnection, unbundling, terms and conditions for the provision of unbundled network elements, resale, tariffs of nondominant carriers, number portability, telecommunications relay service, payphone service, geographic rate averaging and rate integration, hearing aid compatibility, connection of computer modems and other terminal equipment to the PSTN, cable ownership rules, open video systems, Family Radio Service (FRS), Low Power Radio Service (LPRS), and fixed microwave services.

The deadline to submit comments is January 29, 2007. See, Federal Register, November 29, 2006, Vol. 71, No. 229, at Pages 69085-69094.

USTR Schwab Discusses Trade Agenda

11/28. Susan Schwab, the U.S. Trade Representative, gave a speech at an event hosted by the U.S. Chamber of Commerce titled "Next Steps for the American Trade Agenda".

She said that the "Conventional Wisdom persists that the election will hobble or stop the administrationís trade agenda dead in its tracks. ... People ask me if the Administrationís trade agenda will have to change now that Democrats are in a majority. The answer is no. The mission of opening markets, spurring development, and keeping the United States at the fore of a rules-based trading system transcends party ID."

She said that the agenda for 2006 includes permanent normal trade relations for Vietnam, and that the agenda for 2007 and 2008 includes Peru/Colombia, Panama, and Korea/Malaysia. She did not mention Russia in the prepared text of her speech.

She also discussed the Doha round negotiations. She said that "We walked away from a bad deal in July; if necessary we will do so again -- but we cannot let a strong, potential Doha deal slip through our fingers."

People and Appointments

11/29. President Bush named Christopher Oprison to be an Associate Counsel to the President. He previously worked for the law firm of Skadden Arps. See, White House release.

11/29. President Bush named Cheryl Stanton to be an Associate Counsel to the President. She previously worked in the Morristown, New Jersey, office of the law firm of Olgetree Deakins Nash Smoak & Stewart, where she represented employers in discrimination, harassment, and ERISA litigation, and in labor arbitrations. See, White House release.

11/29. President Bush named Scott Stanzel to be Deputy Assistant to the President and Deputy Press Secretary. He was previously Senior Product Manager of the Security Technology Unit at Microsoft. Before that, he was Press Secretary of the Bush-Cheney 2004 re-election campaign. He has also worked for Sen. Charles Grassley (R-IA). See, White House release.

11/29. President Bush named Alan Swendiman to be a Special Assistant to the President and Director, Office of Administration. He was previously General Counsel of the General Services Administration. See, White House release.

11/27. Chad Sweet was named Chief of Staff at the Department of Homeland Security (DHS). See, DHS release.

More News

11/29. The Federal Communications Commission (FCC) published a notice in the Federal Register that announces, describes, and sets the effective date (November 1, 2006) of its Memorandum Opinion and Order [25 pages in PDF] that concluded that Massport's restrictions on Continental Airline's use of its Wi-Fi antenna are pre-empted by the FCC's OTARD rules. This item is FCC 06-157 in ET Docket No. 05-247. See, Federal Register, November 29, 2006, Vol. 71, No. 229, at Pages 69052-69054. See also, story titled "FCC Rules Boston Airport Cannot Regulate WiFi" in TLJ Daily E-Mail Alert No. 1,481, November 2, 2006.

11/28. The Department of Commerce (DOC) published a notice in the Federal Register (FR) that states that it is selling advertising space in a web site operated by the DOC and Department of State (DOS). The web site is a part of the DOC/DOS initiative titled "U.S. Electronic Education Fair for China". The notice states that the purpose "is to inform Chinese students who are interested in studying outside of China about the breadth and depth of the higher education opportunities available in the U.S." The price of a banner ad is $8,000. The deadline to purchase ad space is 3:00 PM on December 8, 2006. See, FR, November 28, 2006,  Vol. 71, No. 228, at Page 68800.

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Notice
There was no issue of the TLJ Daily E-Mail Alert on Tuesday, November 28, 2006.
Washington Tech Calendar
New items are highlighted in red.
Wednesday, November 29

The House will next meet on Tuesday, December 5, 2006, at 10:00 AM. See, Republican Whip Notice. See also, HConRes 496.

The Senate will next meet on Monday, December 4, 2006. See also, HConRes 496.

9:30 AM - 12:00 NOON. The Department of Justice's (DOJ) Antitrust Division and the Federal Trade Commission (FTC) will hold another in their series of joint hearings on single firm conduct. The topic of this hearing is loyalty discounts. The witnesses will be Joseph Kattan (Gibson Dunn & Crutcher), Thomas Lambert (University of Missouri School of Law), Barry Nalebuff (Yale University School of Management), and David Sibley (University of Texas at Austin). Location: Conference Room C, FTC's Conference Center, 601 New Jersey Ave., NW.

12:00 NOON - 2:00 PM. The DC Bar Association will host a panel discussion titled "A New Era for CFIUS". The speakers will include Jeanne Archibald (Hogan & Hartson), Joe Cwiklinski (Senate Banking Committee), Nova Daly (Department of the Treasury), Harvey Nathan (EADS North America Defense), and Keith Loken (Department of State). The price to attend ranges from $5 to $25. For more information, call 202-626-3463. See, notice. Location: D.C. Bar Conference Center, 1250 H Street NW, B-1 Level.

1:30 - 3:30 PM. The Federal Communications Commission's (FCC) WRC-07 Advisory Committee's Informal Working Group 2: Satellite Services and HAPS will meet. See, notice [PDF]. Location: Leventhal Senter & Lerman, 7th Floor Conference Room, 2000 K Street, NW.

1:30 AM - 4:00 PM. The Department of Justice's (DOJ) Antitrust Division and the Federal Trade Commission (FTC) will hold another in their series of joint hearings on single firm conduct. The topic of this hearing is loyalty discounts. The witnesses will be Daniel Crane (Cardozo School of Law), Timothy Muris (O'Melveny & Myers), Janusz Ordover (New York University), and Willard Tom (Morgan Lewis & Bockius). Location: Conference Room C, FTC's Conference Center, 601 New Jersey Ave., NW.

2:00 - 4:00 PM. The Department of State's (DOS) International Telecommunication Advisory Committee (ITAC) will meet to discuss proposed US contributions to the Permanent Executive Committee of the Organization of American States Inter-American Telecommunication Commission (COM/CITEL). See, notice in the Federal Register, October 31, 2006, Vol. 71, No. 210, at Page 63828. Location: undisclosed.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Notice of Inquiry [37 pages in PDF] regarding preparation of its annual report to the Congress regarding the status of competition in markets for the delivery of video programming. This NOI is FCC 06-154 in MB Docket No. 06-189. The FCC adopted this NOI at an October 12, 2006, meeting, and released it on October 20, 2006. See, stories titled "FCC Adopts NOI Regarding Video Competition" in TLJ Daily E-Mail Alert No. 1,467, October 12, 2006, and "FCC Releases NOI on Video Competition and Other Issues" in TLJ Daily E-Mail Alert No. 1,473, October 23, 2006. See also, notice in the Federal Register, November 17, 2006, Vol. 71, No. 222, at Pages 66946-66953.

Thursday, November 30

8:00 AM - 2:00 PM. Deloitte Touche will host a conference titled "Building Public Trust: The Role of Public and Private Sectors in Preventing Identity Theft Conference". The speakers will include  Deborah Majoras (FTC Chairman), Lydia Parnes (Director of the FTC's Bureau of Consumer Protection), and Paul McNulty (Deputy Attorney General). See, notice and agenda. For more information, call 703-251-1383, Location: Four Seasons Hotel, 2800 Pennsylvania Ave.,  NW.

9:00 AM - 10:30 PM. The DC Bar Association's Intellectual Property Law Section will host a seminar titled "Dilution Update". The speakers will include Roberta Horton (Arnold & Porter). The price to attend ranges from $15 to $25. For more information, call 202-626-3463. See, notice. Location: D.C. Bar Conference Center, 1250 H Street NW, B-1 Level.

9:30 AM. The Federal Communications Commission's (FCC) North American Numbering Council (NANC) will meet. See, notice in the Federal Register, November 8, 2006, Vol. 71, No. 216, at Pages 65520-65521. Location: FCC, Room TW-C305, 445 12th St., SW.

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.

11:00 AM - 12:00 PM. The Heritage Foundation will host a panel discussion titled "The Future of the Attorney-Client Relationship in White-Collar Prosecutions". See, notice. Location: Heritage, 214 Massachusetts Ave., NE.

12:15 PM. The Federal Communications Bar Association's (FCBA) Wireless Telecommunications Practice Committee will host a lunch. The topic will be "Analysts' Perspective of the AWS Auction". The speakers will include Rebecca Arbogast (Stifel Nicolaus) and Anna Maria Kovacs (Regulatory Source Associates). The price to attend is $15. See, registration form [PDF]. Registrations and cancellations are due by 12:00 NOON on November 28. Location: Latham & Watkins, 10th floor, 555 11th St., NW.

TIME? 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 loyalty discounts. Location?

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

Deadline to submit comments to the National Institute of Standards and Technology's (NIST) Computer Security Division regarding its Draft Special Publication 800-54 [57 pages in PDF], titled "Border Gateway Protocol Security".

Friday, December 1

9:30 AM - 12:00 NOON. The Department of State's International Telecommunication Advisory Committee will meet to discuss the US position on the International Telecommunications Union's (ITU) budget shortfalls and related matters. See, notice in the Federal Register, November 14, 2006, Vol. 71, No. 219, at Page 66362. Location: undisclosed.

Day one of a two day closed conference hosted by the International Research Forum on Monetary Policy. See, notice. Location: Federal Reserve Board.

Saturday, December 2

Day two of a two day closed conference hosted by the International Research Forum on Monetary Policy. See, notice. Location: Federal Reserve Board.

Monday, December 4

The Senate will return from its Thanksgiving recess. See, HConRes 496.

8:30 AM - 5:00 PM. The National Science Foundation's (NSF) Advisory Committee for International Science and Engineering will meet. See, notice in the Federal Register, November 13, 2006, Vol. 71, No. 218, at Page 66201. Location: 4201 Wilson Boulevard, Room 1235, Arlington, VA.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in E-PASS Tech v. 3Com, App. Ct. No. 2006-1356. Location: Courtroom 203, 717 Madison Place, NW.

Extended deadline to submit comments to the Department of Commerce's (DOC) Bureau of Industry and Security (BIS) regarding its proposed changes to its Export Administration Regulations (EAR) pertaining to exports and reexports of dual-use items to the People's Republic of China (PRC). Dual use items include certain encryption products, information security products, fiber optic products, computers, and software. See, original notice in the Federal Register, July 6, 2006, Vol. 71, No. 129, at Pages 38313-38321, and notice of extension in the Federal Register, October 19, 2006, Vol. 71, No. 202, at Page 61692.

Tuesday, December 5

The House will return from its Thanksgiving recess at 10:00 AM. See, Republican Whip Notice. See also, HConRes 496.

9:00 AM - 1:30 PM. The U.S. Chamber of Commerce will host an event titled "Minding Your Business: The Future of Privacy". The speakers will include Federal Trade Commission (FTC) Chairman Deborah Majoras. See, notice. The price to attend ranges from free to $249. There will also be a webcast. A continental breakfast will be served at 8:30 AM. Location: U.S. Chamber of Commerce, 1615 H Street, NW.

9:00 - 10:15 AM. The Washington Legal Foundation (WLF) will host a panel discussion titled "Self-Regulation of Advertising: Promoting Responsibility and Maintaining Commercial Speech". The speakers will be Jodie Bernstein (Bryan Cave), Lynne Omlie (Distilled Spirits Council of the United States), and Diane Bieri (Pharmaceutical Research and Manufacturers of America). See, notice [PDF]. Breakfast will be served. Location: WLF, 2009 Massachusetts Ave., NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in IPVenture v. Prostar Computer, App. Ct. No. 2006-1012, a patent infringement case involving thermal management for computers. Location: Courtroom 201, 717 Madison Place, NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Quickview System v. Belo Interactive, App. Ct. No. 2006-1091. This is an appeal from the U.S. District Court (NDTex), D.C. No. 3:04-CV-1254-B. The District Court construed the term "computer" in the patent claim not to include a networked systems of two or more computers. Location: Courtroom 201, 717 Madison Place, NW.

2:00 PM. The U.S. Court of Appeals (FedCir) will hear oral argument in Monster Cable Products, Inc. v. The Quest Group d/b/a AudioQuest, App. Ct. No. 2006-1111, a patent case involving audio cables. Location: Courtroom 203, 717 Madison Place, NW.

6:00 - 8:15 PM. The Federal Communications Bar Association's (FCBA) Transactional Practice Committee will host a continuing legal education (CLE) seminar titled "Equity Investments and Lending to FCC-Regulated Communications Companies: Legal Issues and Business Considerations". See, notice and registration form [PDF]. Registrations and cancellations are due by 5:00 PM on December 1. The price to attend ranges from $50 to $125. Location: Sidley Austin, 6th floor, 1501 K St., NW.

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 Autotelís request for arbitration of an interconnection agreement with Citizens Utilities Rural Company, Inc. and Autotelís 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.

Wednesday, December 6

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in New Generation v. Slocum Enterprises, App. Ct. No. 2006-1137. Location: Courtroom 203, 717 Madison Place, NW.

12:30 - 2:00 PM. The DC Bar Association will host a panel discussion titled "Identity Theft, Internet Privacy and Cell Phone Privacy -- What are the Rules of the Road?". The speakers will include Marc Groman (Federal Trade Commission), Al Gidari (Perkins Coie), Eric Wenger (DOJ's Computer Crimes and Intellectual Property Section), and Heidi Salow (Sprint Nextel). 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.

2:00 PM. The U.S. Court of Appeals (FedCir) will hear oral argument in MyMail v. America Online, App. Ct. No. 2006-1147. Location: Courtroom 203, 717 Madison Place, NW.

2:00 - 4:00 PM. The Department of State's (DOS) International Telecommunication Advisory Committee (ITAC) will meet to discuss the upcoming meeting of the ITU Radiocommunication Sector's Conference Preparatory Meeting (CPM) for the 2007 World Radiocommunication Conference, to be held on February 19 through March 2, 2007 in Geneva, Switzerland. See, notice in the Federal Register, October 10, 2006, Vol. 71, No. 195, at Page 59580. Location: Boeing Company, 1200 Wilson Blvd., Arlington, VA.