2/14. The Federal Trade Commission (FTC) filed a civil complaint [9 pages in PDF] in U.S. District Court (MDFl) against Action Research Group, Inc. (ARG) and others alleging violation of Section 5(a) of the FTC Act in connection with their engaging in pretexting practices to obtain confidential phone records from carriers.

ARG and the other defendants were some, but not all, of the participants in Hewlett Packard's (HP) pretexting scandal. However, the complaint does not name as defendants HP or any of its current or former employees or directors. The complaint does not disclose that the named defendants performed work on behalf of HP.

The complaint alleges that the "Defendants have obtained confidential customer phone records pertaining to account holders with telecommunications carriers from those carriers, including lists of calls made as well as the date, time, and duration of such calls, and have made such information available to their clients or others for a fee."

The complaint further alleges that "The account holders have not authorized Defendants to access or sell their confidential customer phone records. Instead, to obtain such information, Defendants have used or have caused others to use, false pretenses, fraudulent statements, fraudulent or stolen documents or other misrepresentations, including posing as an account holder or as an employee of the telecommunications carrier, to induce officers, employees, or agents of telecommunications carriers to disclose confidential customer phone records."

The complaint alleges that this violates Section 5 of the FTCA, which is codified at 15 U.S.C. § 45(a). This section provides, in part, that "Unfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce, are hereby declared unlawful."

The complaint also states that this practice constitutes an "invasion of privacy", and that it endangers the health and safety of the customers who records are obtained. The complaint alleges injury to consumers.

However, this is not a typical FTC Section 5(a) complaint. The injured consumers are not consumers of the defendants. The injured people have no business or competitive relationship with the defendants. Ultimately, HP was the consumer. There is nothing in the complaint that suggests that this consumer was harmed, or even dissatisfied with the defendants' actions.

The FTC has no general privacy statute to enforce. Hence, it pursues some violators of privacy under the statutory authority that it does possess.

The complaint seeks preliminary and permanent injunctive relief, and "rescission or reformation of contracts, restitution, and the disgorgement of ill-gotten monies".

See also, FTC release.

This case is Federal Trade Commission v. Action Research Group, Inc., Joseph Depante, Matthew Depante, Bryan Wagner, Cassandra Selvage, and Eye in the Sky Investigations, Inc., U.S. District Court for the Middle District of Florida, Orlando Division, D.C. No. 6:07-CV-0227-ORL-22JGG.

2/12. The House approved HR 34, an untitled bill to establish a pilot program in certain U.S. District Courts to encourage enhancement of expertise in patent cases among judges and clerks. This bill is sponsored by Rep. Darrel Issa (R-CA) and Rep. Adam Schiff (D-CA). The House approved this bill by voice vote.

Neither the House Judiciary Committee (HJC), nor its Subcommittee on Courts, the Internet and Intellectual Property (SCIIP), held a hearing or a mark up in this Congress. However, this bill is a reintroduction of HR 5418 from the 109th Congress, which the House approved on September 28, 2006. See also, story titled "Reps. Issa and Schiff Reintroduce Patent Judges Bill" in TLJ Daily E-Mail Alert No. 1,526, January 25, 2007.

Rep. Howard Berman (D-CA), the Chairman of the SCIIP, explained the bill during the floor debate. He said that this bill authorizes the Administrative Office of the United States Courts to "establish pilot programs in the United States district courts where the most patent cases are filed. At minimum, five courts, spread over at least three circuits, will take part. To qualify, a court must have at least 10 judges, and at least three judges must request to take part in that program in each of the districts."

He continued that "The chief judge randomly assigns the patent cases. Should that judge, who is assigned the case, decline that assignment, one of the several judges who has opted to take part in the pilot program receives the case. Further, H.R. 34 requires the Director of the Administrative Office of the United States Courts to report to Congress on the pilot program's success in developing judicial expertise in patent law and authorizes funds to increase both judges' familiarity with patent law and provide additional funding for clerks."

Rep. Lamar Smith (R-TX), the ranking Republican on the HJC, stated in the House that "The need for such a program becomes apparent when one considers that fewer than 1 percent of all cases in U.S. district courts, on average, are patent cases and that a district court judge typically has a patent case proceed through trial only once every 7 years. These cases require a disproportionate share of attention and judicial resources, and the rate of reversal remains unacceptably high."

He added that "The premise underlying H.R. 34 is simple. Practice makes perfect, or at least better. Judges who focus more attention on patent cases can be expected to be better prepared and make decisions that will hold up under appeal."

Rep. Issa (at right) stated that "Under the Markman decision, a Federal judge must decide what the patent means. It is incredibly technical often to decide what 5,000 claims, sometimes looking thicker than the Bible and the Koran put together, really mean; and yet that is an obligation of the judge. Those obligations may be in the areas of mechanical engineering, electrical engineering. It could be chemical. It could be bio. It could be so technical as to require outside experts just to decipher some of the language. And yet we ask a Federal judge, most often the one who has just ascended to the bench, to take on these patent cases. This bill is designed to reduce the times in which the most complex cases get before the least prepared and sometimes even the least willing Federal judges."

See also, Rep. Issa's release.

Karen Knutson of the Business Software Alliance (BSA) stated in a release that "the tech industry has seen a sharp increase in litigation due to patent trolls and others seeking to abuse the legal system. Given the high stakes of each and every case, we must do everything we can to ensure judges have the tools and resources to decide what can often be very technical and complex legal matters. This bill is an important first step in improving our overall patent system.

The Senate has taken no action on this bill, or any companion bill.

2/14. The Federal Communications Commission (FCC) released its 2006 biennial review reports. The biennial regulatory review process is mandated by Section 11 of the Communications Act of 1934, which is codified at 47 U.S.C. § 161.

This section provides that "In every even-numbered year (beginning with 1998), the Commission (1) shall review all regulations issued under this chapter in effect at the time of the review that apply to the operations or activities of any provider of telecommunications service; and (2) shall determine whether any such regulation is no longer necessary in the public interest as the result of meaningful economic competition between providers of such service." (Parentheses in original.)

The FCC released the following reports:

• Consumer and Government Affairs Bureau (CGAB) report [37 pages in PDF]. This report is DA 07-672 in CG Docket No. 06-152.
• Enforcement Bureau (EB) report [5 pages in PDF]. This report is DA 07-667 in EB Docket No. 06-153.
• International Bureau (IB) report [43 pages in PDF]. This report is DA 07-675 in IB Docket No. 06-154.
• Office of Engineering and Technology (OET) report [26 pages in PDF]. This report is DA 07-668 in ET Docket No. 06-155.
• Wireline Competition Bureau (WCB) report [86 pages in PDF]. This report is DA 07-656 in WC Docket No. 06-157.
• Wireless Telecommunications Bureau (WTB) report [139 pages in PDF]. This report is DA 07-674 in WT Docket No. 06-156.

2/19. In the state of Maryland's General Assembly, on February 7, 2007, Del. Herman Taylor (D-Montgomery County) and others introduced HB 1069, a state bill pertaining to broadband access and network neutrality.

This bill states that "THE GENERAL ASSEMBLY FINDS (1) THAT A BROADBAND PROVIDER THAT OFFERS BROADBAND INTERNET SERVICE TO THE PUBLIC SHOULD NOT PROVIDE OR SELL TO INTERNET CONTENT, APPLICATION, OR SERVICE PROVIDERS, INCLUDING ANY AFFILIATE OF A BROADBAND SERVICE COMPANY, ANY SERVICE THAT PROVIDES, DEGRADES, OR GIVES PRIORITY TO ANY PACKET SOURCE OVER THAT COMPANY’S BROADBAND INTERNET ACCESS SERVICE BASED ON ITS SOURCE, OWNERSHIP, OR DESTINATION".

The bill then mandates the filing of detailed quarterly reports by broadband access providers regarding the services which they offer, broken down to the zip code plus four level.

Art Brodsky of the Public Knowledge (PK) wrote in the PK web site that this bill "shows there is still a state role to play".

On February 19, the Free State Foundation (FSF) released a report [PDF] titled "Net Neutrality Is A Federal Issue". The author is James Speta, a professor at Northwestern University School of Law.

While "Moving regulatory fights from federal to state regulatory fora (or vice versa) has a venerable history in telecommunications", writes Speta, "network neutrality is the quintessential federal issue".

He argues that "applications and content on the Internet are distributed nationally -- and internationally. Almost never will a user access only in-state websites. Network neutrality regulation addresses the relationship between Internet access providers on the one hand and applications and content providers on the other. As a matter of telecommunications doctrine, therefore, network neutrality is a federal issue".

He also argues that "Internet access providers themselves have national footprints, design their networks based on national business practices, and advertise in national media. As a matter of policy, any fragmentation caused by different state network neutrality rules would introduce inefficiencies".

Speta concludes that "Federal preemption is not only the current policy as a doctrinal matter, it is the best policy for broadband regulation overall."

2/16. Nick Kolovos will join the National Cable & Telecommunications Association (NCTA) as VP, Government Relations, effective March 12, 2007. He will report to Steve Vest, SVP for Government Relations. Kolovos previously worked for the CTIA - The Wireless Association. He has also worked for Rep. Anna Eshoo (D-CA), and at the Federal Communications Commission's (FCC) Wireless Bureau (WB).

2/16. The Alliance for Public Technology (APT) released a report [PDF] titled "Achieving Universal Broadband: Policies for Stimulating Deployment and Demand". It states that a national goal should be to have 50% of U.S. citizens "connected to broadband services with 10 mbps downstream and 1 mbps upstream capacity by the end of 2010". It argues that "policy-makers have failed to put into place comprehensive telecommunication policies that promote broadband networks and services throughout the country, especially to underserved communities". Among the APT's recommendations are that the government "Require Universal Service Fund recipients to offer broadband services" and "Provide tax incentives, low interest loans, and grants for broadband deployment".

2/16. U.S. Patent and Trademark Office (USPTO) published a notice in the Federal Register that announces, describes, recites, and sets the comment deadline for proposed rule changes. The notice states that the USPTO proposes to change its rules "to conform them to certain amendments made to the Regulations under the Patent Cooperation Treaty (PCT) that will take effect on April 1, 2007. These amendments will result in the addition of a mechanism to the PCT system whereby applicants may request that the right to claim priority be restored in applications that meet certain requirements. In addition, these amendments will provide a means for applicants to insert a missing portion of an international application without the loss of the international filing date. These amendments also will clarify the circumstances and procedures under which the correction of an obvious mistake may be made in an international application. Finally, the Office is proposing to revise the search fee for international applications." The deadline to submit comments is March 19, 2007. See, Federal Register, February 16, 2007, Vol. 72, No. 32, at Pages 7583-7587.

2/16. The Government Accountability Office (GAO) provided prepared testimony [40 pages in PDF] for the House Homeland Security Committee titled "Homeland Security: US-VISIT Has Not Fully Met Expectations and Longstanding Program Management Challenges Need to Be Addressed".

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George Washington's Birthday.

The House will not meet on the week of February 19-23. See, House 2007 calendar.

The Senate will not meet on the week of February 19-23. See, Senate 2007 calendar.

The Federal Communications Commission (FCC) and other federal offices will be closed. See, Office of Personnel Management's (OPM) list of federal holidays and 5 U.S.C. § 6103.

The National Press Club will be closed.

Day one of a four day convention titled "Satellite 2007". See, web site. Location: Washington Convention Center, 801 Mount Vernon Place, NW.

Day two of the National Association of Regulatory Utility Commissioners' (NARUC) winter committee meetings. Location: Renaissance Washington Hotel.

2:00 - 4:00 PM. The Department of State's (DOS) International Telecommunication Advisory Committee (ITAC) will meet to prepare advice on U.S. positions for the Organization of American States (OAS) Inter-American Telecommunications Commission's Permanent Consultative Committee I (Telecommunications). See, notice in the Federal Register, January 11, 2007, Vol. 72, Number 7, at Page 1363. Location: undisclosed.

2:00 - 5:00 PM. The Federal-State Joint Board on Universal Service will meet. There will be panel discussion titled "The Use of Reverse Auctions to Determine Levels of High-Cost Universal Service Support" and "The Use of Geographic Information Services (GIS) and Mapping Techniques in Determining High-Cost Universal Service Support". For more information, contact Clyde Ensslin at 202-418-0506. Location: Renaissance Washington Hotel, 999 9th St., NW.

Day two of a four day convention titled "Satellite 2007". See, web site. Location: Washington Convention Center, 801 Mount Vernon Place, NW.

Day three of the National Association of Regulatory Utility Commissioners' (NARUC) winter committee meetings. Location: Renaissance Washington Hotel.

EXTENDED TO MAY 23. Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) in its proceeding titled "In the Matter of Effects of Communications Towers on Migratory Birds". This NPRM [40 pages in PDF] is FCC 06-164 in WT Docket No. 03-187. The FCC adopted this NPRM on November 3, 2006. It released it on November 17, 2006. See, FCC's notice of extension [PDF] (DA 07-72), and notice in the Federal Register, January 26, 2007, Vol. 72, No. 17, at Pages 3776-3777.

Deadline to submit initial comments to the Federal Communications Commission's (FCC) International Bureau (IB) regarding a proposal to remove from the Section 214 Exclusion List those non-U.S. licensed satellites that have been allowed to enter the U.S. market for satellite services pursuant to the procedure adopted in the DISCO II order. See, FCC's Public Notice [4 pages in PDF] (DA 07-100). This proceeding is IB Docket No. 95-118.

10:00 AM. The Supreme Court will hear oral argument in Microsoft v. AT&T, Sup. Ct. No. 05-1056, a petition for writ of certiorari to the U.S. Court of Appeals (FedCir) in a patent infringement case. See, SCUS calendar.

11:30 AM -1:00 PM. The National Science Foundation's (NSF) National Science Board Commission on 21st Century Education in Science, Technology, Engineering, and Mathematics will meet. See, notice in the Federal Register, February 9, 2007, Vol. 72, No. 27, at Page 6297. Location: NSF, 4201 Wilson Blvd., Arlington,  VA.

12:15 PM. The Federal Communications Bar Association's (FCBA) Young Lawyers' Committeee will hold a brown bag lunch titled "The Role of In House Counsel". The speakers will be Robert Branson (Verizon Wireless), Stacy Fuller (DirecTV), Uzoma Onyeije (M2Z Networks), and Sumeet Seam (Discovery Communications). For more information, contact Chris Fedeli at chrisfedeli at dwt dot com, Natalie Roisman at nroisman at akingump dot com, or Tarah Grant at tsgrant at hhlaw dot com. Location: Hogan & Hartson, 555 13th St., NW.

POSTPONED. 6:00 - 8:15 PM. The Federal Communications Bar Association's (FCBA) Engineering and Technical Practice Committee will host a continuing legal education (CLE) seminar titled "Regulating for Innovation". See, registration form [PDF]. The deadline for registrations and cancellations is 5:00 PM on February 19. The prices to attend ranges from $50 to $125. Location: Skadden Arps, 1440 New York Ave., NW.

Day three of a four day convention titled "Satellite 2007". See, web site. Location: Washington Convention Center, 801 Mount Vernon Place, NW.

Day four of the National Association of Regulatory Utility Commissioners' (NARUC) winter committee meetings. Location: Renaissance Washington Hotel.

8:30 AM - 2:00 PM. The University of Maryland University College will host an event titled " Maryland Cyber Security Forum". Greg Garcia (Assistant Secretary for Cyber Security and Telecommunications at the Department of Homeland Security) will speak at 8:30 AM. Keith Alexander (Lieutenant General, and Director of the National Security Agency) will speak at 10:15 AM. Location: 3501 University Boulevard East, Adelphi, MD.

9:30 AM - 5:00 PM. The Antitrust Modernization Commission (AMC) will meet. The AMC states that "Advanced registration is required." See, notice in the Federal Register, February 2, 2007, Vol. 72, No. 22, at Page 5000. Location: Morgan Lewis, main conference room, 1111 Pennsylvania Ave., NW.

12:00 NOON. The Federalist Society will host a lunch titled "Class Action Fairness Act". For more information, contact Juli Nix at 202-822-8138 or jnix at fed-soc dot org. Location: Holeman Lounge, National Press Club, 529 14th St. NW, 13th Floor

12:15 PM. The Federal Communications Bar Association's (FCBA) Wireless Telecommunications Practice Committee will host a lunch titled "Wireless Content Issues Explored". The speakers will include Mark Desautels (CTIA). The deadline for registrations and cancellations is 12:00 NOON on February 20. The price to attend is $15. See, registration form [PDF]. Location: Latham & Watkins, 555 11th St., NW.

2:00 - 4:00 PM. The Department of State's (DOS) International Telecommunication Advisory Committee (ITAC) will meet to prepare advice on U.S. positions for the International Telecommunication Union's (ITU) Telecommunication Standardization Sector Study Group 3 (Tariff and accounting principles including related telecommunication economic and policy issues). See, notice in the Federal Register, January 11, 2007, Vol. 72, Number 7, at Page 1363. Location: undisclosed.

2:00 - 4:00 PM. The American Enterprise Institute (AEI) will hold a panel discussion titled "China's Economic Rise: Opportunity or Threat". The speakers will be Timothy Adams (Under Secretary for International Affairs, Department of the Treasury), Morris Goldstein (Institute for International Economics), Yusuke Horiguchi (Institute for International Finance), Anne Krueger, Stephen Roach (Morgan Stanley), and Desmond Lachman (AEI). See, notice. Location: AEI, 1150 17th St., NW.

2:00 - 6:00 PM. The Department of Commerce's (DOC) Measuring Innovation in the 21st Century Economy Advisory Committee will hold its first meeting. See, notice in the Federal Register, January 31, 2007, Vol. 72, No. 20, at Page 4482. Location: Vista Ballroom, Wyndham Washington Hotel, 1400 M St., NW.

Day four of a four day convention titled "Satellite 2007". See, web site. Location: Washington Convention Center, 801 Mount Vernon Place, NW.

Deadline to submit reply comments in response to the Federal Communications Commission's (FCC) Public Notice [4 pages in PDF] regarding how the FCC should interpret the phrase "remote communities effectively unserved by commercial mobile service", in Section 605(a) of the Warning, Alert, and Response Network (WARN) Act. The WARN Act was enacted in late 2006 a part of the port security bill. It establishes a process for commercial mobile service providers to voluntarily elect to transmit emergency alerts. Section 605(a) establishes a grant program for the installation of technologies in remote communities. This item is FCC 07-4 in PS Docket No. 07-8. See also stories titled "Bush Signs Port Security Bill" in TLJ Daily E-Mail Alert No. 1,469, October 16, 2006, and "House and Senate Approve Port Security Bill With Tech Provisions" in TLJ Daily E-Mail Alert No. 1,461, October 4, 2006.

8:30 AM - 5:30 PM. The U.S.- China Economic and Security Review Commission will meet. See, notice in the Federal Register, February 12, 2007, Vol. 72, No. 28, at Pages 6668-6669. Location: Room 562 Dirksen Building, Capitol Hill.

10:00 - 11:30 AM. The Heritage Foundation and the Center for Strategic and International Studies (CSIS) will host a panel discussion titled "Listening For Terrorists: Surveillance Program - Lessons Learned and the Way Ahead". The speakers will be Mary DeRosa (CSIS), Todd Gaziano (Heritage), Suzanne Spaulding (Bingham Consulting Group), John Yoo (UC Berkeley School of Law, and author of book [Amazon] titled "War by Other Means: An Insider's Account of the War on Terror"), and James Carafano (Heritage). See, notice. Location: Heritage, Massachusetts Ave.,  NE.

12:00 NOON - 2:00 PM. The DC Bar Association, Federal Communications Bar Association's (FCBA) Communications Law, Copyright & Digital Rights Management Practice Committee, and the D.C. Chapter of the Copyright Society of the United States will host a brown bag lunch titled "Digital Rights Management and Copy Protection Issues". The speakers will be Adam Goldberg (Pioneer North America), Rob Kasunic (U.S. Copyright Office), Ryan Triplette (Senate Judiciary Committee), Troy Dow (Walt Disney, Co.), Natalie Roisman (moderator, Akin Gump). RSVP to Ben Golant at bgol at loc dot gov or 202-707-9127. See, DC Bar notice. Location: DC Bar Conference Center, B-1, 1250 H St., NW.

12:00 NOON - 2:00 PM. The New America Foundation (NAF) will host a panel discussion titled "Wireless Future: What is the Best Way to Bring Ubiquitous Broadband Access to All Americans?". The speakers will be John Muleta (M2Z Networks), Morgan O'Brien (Cyren Call), Chris Guttman-McCabe (CTIA - The Wireless Association), Ben Scott (Free Press), John Scrivner (Wireless Internet Service Providers Association), and Michael Calabrese (NAF). Lunch will be served. See, notice. Location: Room 385, Russell Building, Capitol Hill.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to the Petition for Declaratory Ruling [8 pages in PDF] regarding number portability submitted by T-Mobile USA and Sprint Nextel Corporation on December 20, 2006. They seek a declaratory ruling that carriers obligated to provide number portability may not obstruct or delay the porting process by demanding information from requesting carriers beyond that required to validate the customer request and accomplish the port. See, FCC's Public Notice [3 pages in PDF] (DA 07-39). This proceeding is WC Docket No. 95-116.

Deadline to submit reply comments to the Federal Communications Commission (FCC) regarding the National Exchange Carrier Association's (NECA) proposed modification of average schedule formulas for interstate settlements. See, FCC's Public Notice [PDF] (DA 07-306). This proceeding is WC Docket No. 06-223.

5:00 PM. Deadline to submit comments to the Office of the U.S. Trade Representative (OUSTR) regarding the adequacy and effectiveness of intellectual property rights (IPR) protection and enforcement at the provincial level in the People's Republic of China. The OUSTR is particularly interested in details about Beijing City, Fujian Province, Guangdong Province, Jiangsu Province, Shanghai City, and Zhejiang Province. See, notice in the Federal Register, January 24, 2007, Vol. 72, No. 15, at Pages 3170-3171.

Deadline to submit written comments to the Federal Trade Commission (FTC) regarding its January 25, 2007, workshop on online marketing of negative options. See, FTC release and notice [PDF] to be published in the Federal Register.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Ninth Notice of Proposed Rulemaking in its proceeding titled "Implementing a Nationwide, Broadband, Interoperable Public Safety Network in the 700 MHz Band". The FCC adopted this item at its December 20, 2006, meeting. It is FCC 06-181 in PS Docket No. 06-229 and WT Docket No. 96-86. See, FCC's Public Notice [3 pages in PDF] (DA 07-41) and notice in the Federal Register, January 10, 2007, Vol. 72, No. 6, at Pages 1201-1204.

Extended deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its 7th Further Notice of Proposed Rulemaking in its proceeding titled "Advanced Television Systems and Their Impact Upon the Existing Television Broadcast Service". This item proposes a new DTV Table of Allotments providing all eligible stations with channels for DTV operations after the DTV transition. The FCC adopted this item on October 10, 2006, and released it on October 20, 2006. See, story titled "FCC Adopts NPRM Proposing New DTV Table of Allotments" in TLJ Daily E-Mail Alert No. 1,473, October 23, 2006. This item is FCC 06-150 in MB Docket No. 87-268. See, notice in the Federal Register, November 15, 2006, Vol. 71, No. 220, at Pages 66591-66631. See, FCC's notice of extention [2 pages in PDF] (DA 07-38) and notice in the Federal Register, January 26, 2007, Vol. 72, No. 17, at Page 3777.

Deadline to submit reply comments to the Federal Communications Commission's (FCC) Media Bureau (MB) in response to its 7th Further Notice of Proposed Rulemaking regarding revisions to the proposed new DTV table of allotments. See, notice in the Federal Register, January 19, 2007, Vol. 72, No. 12, at Pages 2485-2487. This 7thFNPRM is FCC 06-150 in MB Docket No. 87-268.

Deadline to submit initial comments to the Federal Communications Commission's (FCC) Wireless Telecommunications Bureau (WTB) regarding the request submitted by Hand Held Products for a determination that the hearing aid compatibility obligations in Part 20 do not apply to its mobile computing line of devices. See, FCC's Public Notice [PDF] (DA 07-103). This proceeding is WT Docket No. 01-309.