|4th Circuit Rules Person Seeking
Anonymous usTLD Domain Name Registration Lacks Standing to Challenge NTIA's
2/27. The U.S. Court of Appeals (4thCir)
issued its opinion [11
pages in PDF] in Peterson v. NTIA. affirming the District Court's denial of
Peterson motion for a preliminary injunction of the
National Telecommunications and Information Administration's (NTIA) requirement that
people who register internet domains on the .us top level domain (usTLD) disclosure certain
Summary. Peterson argued that the NTIA's requirement violated his First Amendment
right to engage in anonymous speech. The District Court denied the motion on several grounds,
including Peterson's lack of standing. The Court of Appeals affirmed solely on the standing
Unless the Court of Appeals on rehearing or en banc reverses itself, or the
Supreme Court overturns, Peterson's action has failed. However, it should be
noted that his lack of standing was based on facts peculiar to him, and that
another plaintiff might be found to have standing to challenge the NTIA's requirement.
That is, he argued that his freedom of speech rights were violated by a government policy
that he disclose his identity in obtaining his web site registration.
However, before and after filing his complaint, he disclosed his identity and
other personal information in his web site. The Court of Appeals reasoned that
he could not have been injured by the NTIA requirement. In contrast, if another
plaintiff, who seeks not only anonymous registration, but also engages in
anonymous speech, were to file a complaint, then the Court of Appeals might find
that standing exists.
Background. Nations control national TLDs. The US controls the usTLD through the
Department of Commerce's (DOC) NTIA. Defendant Michael Gallagher was head of the
NTIA at the time that the suit was filed. Defendant Carlos Gutierrez remains the
Secretary of Commerce.
The NTIA contracted with defendant Neustar to manage the usTLD. It required Neustar to
maintain and publish a public database of registrants' contact information, including the
name and address of the domain name holder, as well as the name, telephone number, physical
address and e-mail address for the technical and administrative contacts for the domain
name. The contract also allows Neustar to subcontract with third parties to sell
.us domain registrations, but requires any such contracts to incorporate all of
the substantive disclosure requirements of the NTIA Neustar contract.
Neustar then contracted with GoDaddy, which such domain names without satisfying the
disclosure requirement. Plaintiff Robert Peterson was one such registrant. The NTIA required
GoDaddy to stop this practice and comply with its disclosure requirements.
District Court. Peterson filed a complaint in the
U.S. District Court (EDVa) against the NTIA,
Gallagher, Gutierrez, and Neustar. He alleged that the NTIA's disclosure requirement violates
his First Amendment right to speak anonymously. He also alleged that the NTIA failed to
engage in a rulemaking proceeding, with notice and comment, pursuant to the Administrative
Procedure Act (APA), codified at
5 U.S.C. § 553. He sought a preliminary injunction against NTIA enforcement of its
The District Court denied Peterson's request for a preliminary
injunction, on three grounds. First, it held that the disclosure requirement was
a content neutral time, place and manner restriction on speech that did not
violate the First Amendment.
Second, it held that the NTIA's actions were exempt from notice and comment requirements
under the government contracts exception to the APA. 5 U.S.C. § 553(a)(2) exempts from
rulemaking proceedings "a matter relating to agency management or personnel or to public
property, loans, grants, benefits, or contracts".
Third, it held that Peterson lacks standing because he has not suffered an injury in fact.
The District Court noted that since Peterson published identifying information about himself
in his web site, he cannot be injured by the NTIA's disclosure policy.
Court of Appeals. The Court of Appeals affirmed the judgment of the District Court.
However, it affirmed solely on the grounds that Peterson lacked standing.
The Court of Appeals first addressed first party standing --
standing based upon injury to the plaintiff. It wrote that "In order to have
standing, a plaintiff must establish, inter alia, that he has suffered an injury
in fact, that is, ``an invasion of a legally protected interest which is
concrete and particularized, as well as actual or imminent´´", citing Friends of
the Earth, Inc. v. Gaston Copper Recycling, Corp., 204 F.3d 149 (4th Cir. 2000).
It added that the plaintiff in an action against the government must demonstrate a
realistic danger of sustaining a direct injury as a result of government action.
The Court of Appeals acknowledged that "The First Amendment
protects anonymous speech in order to prevent the government from suppressing
expression through compelled public identification", and that "Speech is chilled
when an individual whose speech relies on anonymity is forced to reveal his
identity as a pre-condition to expression."
However, the Court of Appeals continued that "the First
Amendment protects anonymity where it serves as a catalyst for speech." In the
present case, Peterson's "online postings are wholly inconsistent with his
invocation of this right because they demonstrate that his expression did not
rely on his ability to remain anonymous." That is, he identified himself in his
online speech, so he cannot be injured by the NTIA policy requiring disclosure
of his identity in obtaining his domain name registration.
The Court of Appeals added that Peterson "continued posting personally
identifying information after filing this lawsuit".
The Court of Appeals then rejected third party standing -- standing to represent
non-parties who have been injured by the complained of government action -- in a single
The Electronic Privacy
Information Center (EPIC) filed an
amicus curiae brief [PDF] with Court of Appeals. See also, EPIC's
web page on this case.
Related Domain Name Registration Debates. This is just one forum in which domain
name registration, collection of information, and access to that information, have been
The Internet Corporation for Assigned Names and Numbers
(ICANN) has considered proposals to limit access to the WHOIS database of domain name
registration information. The database is publicly available online.
However, many registrants, particularly those who engage in online fraud, spamming, and
intellectual property theft, register with false information. See, story titled "GAO
Reports There is Widespread Domain Name Registration Dishonesty" in
TLJ Daily E-Mail Alert No.
1,268, December 8, 2005.
Some have argued that the database should only be accessible to law enforcement entities.
For example, Marc Rotenberg, head of the EPIC, testified at a July 18, 2006, hearing of the
House Financial Services Committee (HFSC)
in opposition to the ICANN policy. He argued that the current policy allows spammers and
other bad actors to access the WHOIS database. He said that as with state driver licensing
regimes, web site registration information should be accessible only to law enforcement. See,
testimony [12 pages in PDF].
Some financial services entities have argued that they too should access to
the database. Others have argued that the database should be available to all. See
also, story titled "House Subcommittee Holds Hearing on Access to WHOIS
Database" in TLJ
Daily E-Mail Alert No. 1,423, August 2, 2006.
The Congress has also considered legislation that addresses registration of
domain names with false information. For example,
the "Fraudulent Online Identity Sanctions Act", which was enacted in the 108th
Congress, did not create any new civil or criminal prohibition of registering
a domain name with false information. But, it did create a rebuttable
presumption of willfulness in trademark and copyright infringement cases, where
the violation also involves registering a domain name with false information.
HR 3754 was enacted as Title II of
(108th), the "Intellectual Property Protection and Courts Amendments Act of
2004". It is now Public Law No. 108-482. See also,
titled "Representatives Introduce Bill to Deter Domain Name Fraud" and story
titled "House Subcommittee Holds Hearing on False Domain Name Registration Data"
in TLJ Daily E-Mail
Alert No. 830, February 5, 2004.
This case is Robert Peterson v. National Telecommunications and
Information Administration, Michael Gallagher, Carlos Gutierrez, and Neustar,
Inc., U.S. Court of Appeals for the 4th Circuit, App. Ct. Nos.
06-1216 and 06-1548, appeals from the U.S.
District Court for the Eastern District of Virginia, at Alexandria,
1:06-cv-00096-GBL, Judge Gerald Bruce Lee presiding. Judge Duncan wrote the
opinion of the Court of Appeals, in which Judges King and Shedd joined.
|Rep. Boucher Introduces FAIR USE
2/27. Rep. Rick Boucher (D-VA),
Rep. John Doolittle (R-CA), and
Rep. Zoe Lofgren (D-CA) introduced
[PDF], the "Freedom And Innovation Revitalizing U.S. Entrepreneurship Act of 2007" or
"FAIR USE Act".
Rep. Boucher (at right) and Rep. Doolittle
introduced a bill in the previous Congress that was also numbered
HR 1201 (109th
Congress). It was tiled the "Digital Media Consumers' Rights Act of 2005". The two
Representatives also had a similar bills in the 107th and 108th Congresses. However, the just
introduced bill has new language bill, but not a substantially different purpose or likely
Moreover, this bill as introduced contains enough provisions to insure that a
powerful coalition of copyright based industries will organize in effective
opposition, as in previous Congresses.
Moreover, Rep. Boucher has abandoned the pretext that the bill is a consumer
protection bill, rather than a copyright bill. Hence, this bill will go to the
Judiciary Committee (HJC), and its Subcommittee on Courts, the Internet, and
Intellectual Property (SCIIP). The SCIIP is chaired by
Rep. Howard Berman
(D-CA), a leading advocate of the audio and video content industries.
The primary provisions of both the previous bills, and the just introduced bill, are
U.S.C. § 1201, to create a exceptions to the ban on circumvention.
Section 1201(a)(1) provides, in part, that "No person shall circumvent a
technological measure that effectively controls access to a work protected under
Section 1201(a)(2) provides, in part, that "No person shall manufacture,
import, offer to the public, provide, or otherwise traffic in any technology,
product, service, device, component, or part thereof, that -- (A) is primarily
designed or produced for the purpose of circumventing a technological measure
that effectively controls access to a work protected under this title ..."
The key provision of the previous version of the bill was to provide that "it is not
a violation of this section to circumvent a technological measure in order to obtain access
to the work for purposes of making noninfringing use of the work". This language is not
in the just introduced version of the bill.
However, the just introduced bill contains other exceptions to the ban on
circumvention. The numerous exceptions enumerated in the current bill would have
a similar effect to the previous bills.
The bill would also revert back from the MGM v. Grokster
standard to the Sony v. Universal standard for hardware devices. It would
also limit the availability of statutory damages for secondary infringement.
Exceptions to the Ban on Circumvention. The bill would add two new subsections
(F) and (G) to Section 1201(a)(1). Both of these would provide further exceptions to the ban
First, the new subsection (F) would provide that "The prohibition contained
in subparagraph (A) shall not apply to a person by reason of that person's
engaging in a noninfringing use of any of the 6 classes of copyrighted works set
forth in the determination of the Librarian of Congress in Docket No. RM
2005-11, as published as a final rule by the Copyright Office, Library of
Congress, effective November 27, 2006 (71 F. R. 68472 (Nov. 27, 2006))."
Section 1201 also requires the Copyright Office
(CO) to conduct a rulemaking proceeding every three years to designate exemptions to the
The CO published a
notice in the Federal Register (FR) that announces, describes, recites, and
sets effective dates, for this rule. The effective date of this rule is November
27, 2006. It remains in effect until October 27, 2009. See, FR, November 27,
2006, Vol. 71, No. 227, at Pages 68472-68480.
While the Copyright Office's rule remains in effect for three years, the
proposed statutory language would make these six exceptions permanent.
See also, story titled "Copyright Office Releases DMCA Anti-Circumvention
Exemptions" in TLJ
Daily E-Mail Alert No. 1,494, November 27, 2006.
These six exemptions relate to the use of rootkits on CDs and DVDs, e-book
controls that affect the read aloud function, programs protected by dongles,
programs that enable cellphones to connect to a wireless network (where
circumvention is for the purpose of connecting to a network), programs and games
in obsolete formats, and audiovisual works in university libraries.
Second, the new subsection (G) provides six additional exceptions. These are as follows:
(i) an act of circumvention that is carried out solely for the purpose of
making a compilation of portions of audiovisual works in the collection of a
library or archives for educational use in a classroom by an instructor;
(ii) an act of circumvention that is carried out solely for the purpose of
enabling a person to skip past or to avoid commercial or personally
objectionable content in an audiovisual work;
(iii) an act of circumvention that is carried out solely for the purpose of
enabling a person to transmit a work over a home or personal network, except
that this exemption does not apply to the circumvention of a technological
measure to the extent that it prevents uploading of the work to the Internet for
mass, indiscriminate redistribution;
(iv) an act of circumvention that is carried out solely for the
purpose of gaining access to one or more works in the public domain that are
included in a compilation consisting primarily of works in the public domain;
(v) an act of circumvention that is carried out to gain access
to a work of substantial public interest solely for purposes of criticism,
comment, news reporting, scholarship, or research; or
(vi) an act of circumvention that is carried out solely for the
purpose of enabling a library or archives meeting the requirements of section
108(a)(2), with respect to works included in its collection, to preserve or
secure a copy or to replace a copy that is damaged, deteriorating, lost, or stolen.
The fifth item, as it applies to "news reporting", is currently hypothetical.
There is currently no record of access controls and the legislative ban on
circumvention being used to prevent reporters from reporting, and publishers
from publishing. Although, it is not unreasonable for Rep. Boucher to anticipate
that this tactic will be employed in the future. It may also be the case that
this is a class of circumvention that the courts would find to be protected by
the First Amendment's "speech, or of the press" clause. Albeit, there are no
cases on point.
The fifth item, as is applies to "scholarship", would create a huge loophole
in the anti-circumvention regime for any publications consumed by schools and
universities. The fifth item, in the context of "criticism", approaches the
concept of creating a general fair use exception to the ban on circumvention. The book
publishing and news industries, in particular, are likely to oppose these
provisions. Similarly, the second item, regarding content skipping, and the
third item, regarding circumvention by home networkers, will incur the wrath of
the video and audio content industries. Moreover, allowing circumvention for all
of these purposes would render the ban on circumvention ineffective. It is these
sorts of provisions that prevented previous versions of Rep. Boucher's bills
from moving in previous Congresses.
Limitation on Damages for Secondary Infringement. The bill would amend
U.S.C. § 504(c)(2) by adding the following language: "The court shall remit statutory
damages for secondary infringement, except in a case in which the copyright owner sustains the
burden of proving, and the court finds, that the act or acts constituting such secondary
infringement were done under circumstances in which no reasonable person could
have believed such conduct to be lawful."
The bill does not define the term "remit". Its usual meanings in law are either
to refrain from enforcing or collecting, or to give back.
The bill does not define the term "secondary infringement". For
example, the bill does not provide whether or not the term is equivalent to
vicarious infringement, whether or not it encompasses contributory infringement,
whether it would also include violations of Section 1201(a)(1) and (2), and
whether it includes liability based upon an agency relationship.
However, Rep. Boucher wrote in a summary of the bill that this term includes
"contributory infringement, inducement of infringement, vicarious liability, or
other indirect infringement".
By amending Section 504(c)(2), which pertains to "statutory damages", and by
using the words "statutory damages", this provision would appear not to affect
awards of actual damages, profits, costs, or attorneys fees. Rep. Boucher wrote
in his summary that "actual damages would continue to remain available to a
person harmed by secondary infringement".
Also, this section of the bill contains no limitations upon the availability of
Rep. Boucher explained the rationale for this provision in his summary.
"Congress developed the statutory damages award process in a world of physical
works, principally paper and vinyl. Today, in a world in which silicon is the
principal medium of storage, statutory damages can be so large and
disproportionate that entrepreneurs and consumer electronics and information
technology companies are declining to bring new technology to market out of fear
that they could be bankrupted by an adverse finding of secondary liability--even
in cases in which they believed on the advice of counsel that their new
innovative hardware or software products would be found legal if they survived
costly litigation with its highly intrusive discovery."
Sony v. Universal and MGM v. Grokster. The bill would add a new subsection (g) to
U.S.C. § 501, which pertains to infringement of copyright. The new language is as follows:
"CERTAIN HARDWARE DEVICES. --- No person shall be liable for
copyright infringement based on the design, manufacture, or distribution of a
hardware device or of a component of the device if the device is capable of
substantial, commercially significant noninfringing use."
This would codify, in part, for hardware devices, the Supreme Court's 1984
opinion in Sony
Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, which held that
Sony did not contributorily infringe with its Betamax technology. This 5-4
opinion, has been widely praised by consumer electronics (CE) companies, criticized
by some others, and modified by the Supreme Court.
Notably, this bill does not attempt to codify the Supreme Court 2005 unanimous
opinion [55 pages in PDF] in MGM v. Grokster. See,
titled "Supreme Court Rules in MGM v. Grokster" in
TLJ Daily E-Mail Alert No.
1,163, June 28, 2005. Rather, it would have the effect of overturning or minimizing the
effect of MGM v. Grokster in the context of hardware devices.
Rep. Boucher wrote that this provision would "provide greater legal certainty
to legitimate CE companies bringing new products to market in the wake of the
uncertainty created by the" opinion in MGM v. Grokster. This suggests
that Rep. Boucher is dissatisfied with the MGM v. Grokster standard, and
wants to legislatively revert back to the older Sony v. Universal
standard for hardware devices.
The proposed language would only affect hardware devices. Rep. Boucher added
in his summary that this provision "is not intended to have any negative effect
on the continued availability and application of the Betamax standard with
respect to services and software products or to non-commercial activities." The
bill does not define the term "hardware device".
It should be noted that MGM v. Grokster was a peer to peer service
(P2P) case, rather than a hardware device case. Hence, under this bill, P2P
services would remain subject to the MGM v. Grokster standard.
Legislative History of Rep. Boucher's Fair Use Bills. Rep. Boucher
first introduced a DMCA related fair use bill in 2002. The following stories
address Rep. Boucher's prior bills:
titled "Reps. Boucher and Doolittle Introduce Digital Media Consumer Rights Act"
and "Summary of the Digital Media Consumer Rights Act" in
TLJ Daily E-Mail
Alert No. 532, October 4, 2002.
- story titled "Reps. Boucher and Doolittle Introduce Digital Fair Use Bill"
in TLJ Daily
E-Mail Alert No. 582, January 14, 2003.
- stories titled "Chairman Barton Says Commerce Committee Will Mark Up
Boucher Doolittle Bill in July", "House Commerce Committee's Primary
Jurisdiction Over HR 107", and "Judiciary Committee Leaders Condemn
Jurisdictional Power Grab" in
TLJ Daily E-Mail
Alert No. 924, June 23, 2004.
- story titled "Reps. Boucher, Doolittle and Barton Reintroduce Digital Media
Consumers' Rights Act" in
TLJ Daily E-Mail
Alert No. 1,111, April 8, 2005.
titled "House Commerce Subcommittee Holds Hearing on Fair Use" in
TLJ Daily E-Mail
Alert No. 1,256, November 18, 2005.
Comments on the Bill by Sponsors and Supporters. Rep. Boucher stated in a
release that "The fair use doctrine is threatened today as never before. Historically,
the nation's copyright laws have reflected a carefully calibrated balanced between the
rights of copyright owners and the rights of the users of copyrighted material. The Digital
Millennium Copyright Act dramatically tilted the copyright balance toward complete copyright
protection at the expense of the public's right to fair use".
He added that "The FAIR USE Act will assure that consumers who purchase digital
media can enjoy a broad range of uses of the media for their own convenience in a way which
does not infringe the copyright in the work ... Without a change in the law, individuals
will be less willing to purchase digital media if their use of the media within the home is
severely circumscribed and the manufacturers of equipment and software that enables
circumvention for legitimate purposes will be reluctant to introduce the
products into the market".
Rep. Doolittle stated in this release that "America can and must be a world leader
in technological innovation ... This objective is hindered by the provisions in the DMCA that
discourage the free flow of ideas and information. The FAIR USE Act removes
Gary Shapiro, head of the Consumer Electronics
Association (CEA), stated in a
that "This bill will reinforce the historical fair use protections of
constitutionally-mandated copyright law that are reflected in the Digital
Millennium Copyright Act (DMCA). It ensures that consumers, libraries and
educators will not be liable for otherwise legal conduct and it codifies the
important principles of the Supreme Court's Betamax decision. H.R. 1201 provides
much needed fair use protection at a time when some in the content industry are
challenging consumer rights to make use of lawfully acquired content."
He added that "Fair use is central to innovation because it allows for the
invention of new products for the benefit of the public, not just major
Matthew Schruers, of the Computer and Communications
Industry Association (CCIA), stated in a release "This bill promises to remedy the
worst excesses of our secondary liability doctrines and the DMCA... Instituting these reforms
will help to ensure that copyright law protects artists without stifling innovation."
|Washington Tech Calendar
New items are highlighted in red.
|Thursday, March 1
The House will meet at 10:00 AM for legislative business. It will
consider HR 800,
a bill for the benefit of labor unions. See, Rep. Hoyer's
10:00 AM. The
House Appropriations Committee's
(HAC) Subcommittee on Commerce, Justice and Science will hold a hearing on the
National Science Foundation (NSF). The
witness will be Arden Bement. Location: Room 2237, Rayburn Building.
LOCATION CHANGE. 10:00 AM. The
Senate Judiciary Committee (SJC) may hold a business meeting. The agenda includes
S 236, the
"Federal Agency Data Mining Reporting Act of 2007", and
S 316, the
"Preserve Access to Affordable Generics Act", a bill to prohibit brand
name drug companies from compensating generic drug companies to delay the entry of a
generic drug into the market.
The agenda also includes consideration of several
judicial nominees: Thomas Hardiman (to be a Judge of the U.S. Court of Appeals for the
3rd Circuit), John Preston Bailey (U.S.D.C., Northern District of West Virginia), Otis
Wright (U.S.D.C., Central District of California), and George Wu (U.S.D.C., Central District
of California). The SJC rarely follows its published agendas. Press contract,
Tracy Schmaler (Leahy) at 202-224-2154 or Courtney Boone (Specter) at Courtney_Boone at
judiciary-rep dot senate dot gov or 202-224-2984. See,
Room S-216, Capitol Building.
10:00 AM. The Senate Commerce
Committee (SCC) will hold a hearing titled "Universal Service".
The witnesses will be Michael Copps (FCC Commissioner), Deborah
Tate (FCC Commissioner), Larry Landis (Indiana Utility Regulatory Commission), John Burke
(Vermont Public Service Board), Billy Jack Gregg (Public Service Commission of West
Virginia), David Crothers (North Dakota Association of Telecommunications Cooperatives),
Brian Staihr (Embarq Corp.), Richard Massey (Alltel), Tom Tauke (Verizon), and Tom Simmons
(Midcontinent Communications). See,
notice. Location: Room 253, Russell Building.
10:30 AM (or 15 minutes after the conclusion of a
full Committee markup scheduled for 10:00 AM). The
House Commerce Committee's (HCC) Subcommittee
on Telecommunications and the Internet will hold a hearing titled "Digital Future
of the United States: Part I -- The Future of the World Wide Web".
The witness will be
Timothy Berners-Lee. Location: Room 2123, Rayburn Building.
11:30 AM - 1;00 PM. The
U.S. Chamber of Commerce (USCC) will host a
lunch titled "The Sarbanes Oxley Act with Michael Oxley". See,
notice. For more
information, contact Patrick O'Neill at poneill at uschamber dot com
or 202-463-3104. Location: USCC, 1615 H St., NW.
TIME CHANGE. 12:00 NOON - 3:00 PM. The
Progress and Freedom Foundation (PFF) will host an event titled "Universal
Service Reform: Are Reverse Auctions the Answer?". The speakers will be Shyamal
Ghosh (former Director of the Indian Department of Telecommunications), Paul Milgrom
(Stanford University), Vernon Smith (George Mason University), and Dennis Weller (Chief
Economist of Verizon). See,
Lunch will be served. Location:
Oriental Ballroom B, Mandarin Oriental Hotel, 1330 Maryland Ave., SW.
12:00 PM. Secretary of the Treasury Henry Paulson
will give a speech on trade at an event hosted by the
Economic Club of Washington (ECW).
See, Treasury notice.
Press contact: Judi Irastorza (ECW) at pcom2 at cox dot net or 703-765-6881.
Location: Renaissance Mayflower Hotel, Grand Ballroom, 1127 Connecticut Ave., NW.
Deadline for local exchange carriers, providers of wired or
wireless broadband connections, and non-reseller CMRS providers to submit
Form 477 [MS Excel] to the
Federal Communications Commission (FCC). See, FCC's
Notice [PDF] (DA 07-117) and FCC's
Form 477 instructions
[17 pages in PDF].
Deadline to submit to the Federal
Communications Commission's (FCC) Wireless Telecommunications Bureau (WTB) the sixth
annual reports from the 700 MHz Guard Band Managers and the fifth annual report from
Access 220, LLC, a 220 MHz Band Manager. See, FCC's
Notice [PDF] (DA 07-107).
|Friday, March 2
calendar [PDF] states that "No votes are expected in the House."
12:00 NOON - 1:30 PM. The Federal
Communications Bar Association's (FCBA) Cable Committee will host a brown bag lunch
titled "The Future of Program Access Regulation". For more information,
contact Daphney Sheppard at dsheppard at sidley dot com or 202-736-8019. Location:
Sidley Austin, 6th floor, 1501 K St., NW.
12:00 NOON - 1:30 PM. The
U.S. Chamber of Commerce (USCC) will
host an event titled "Sarbanes-Oxley: Costs, Benefits, and the Ongoing
Debate". For more information, contact Henrietta Treyz at 202-463-5864 or
htreyz at uschamber dot com. See,
Location: Room 2158 (Gold Room), Rayburn Building, Capitol Hill.
Deadline to submit reply comments to the Federal
Communications Commission (FCC) in response to its Further Notice of Proposed Rulemaking
(FNPRM) in its TV white space proceeding. This FNPRM is FCC 06-156 in ET Docket
Nos. 04-186 and 02-380. The FCC adopted this item at an October 12, 2006, meeting, and
released it on October 18, 2006. See, story titled "FCC Adopts Order and FNPRM
Regarding TV White Space" in TLJ Daily E-Mail Alert No. 1,467, October 12, 2006, and
notice in the Federal Register, November 17, 2006, Vol. 71, No. 222, at
|Monday, March 5
10:00 AM. The U.S. Court of Appeals
(FedCir) will hear oral argument in Cellco Partnership v. Broadcom,
App. Ct. No. 2006-1514. Location: Room 201, 717 Madison Place, NW.
10:00 AM. The U.S. Court of Appeals
(FedCir) will hear oral argument in Motionless Keyboard v. Microsoft,
App. Ct. No. 2006-1497, an appeal from the U.S.
District Court (DOr) in a patent infringement case affecting, among other things,
Microsoft's joy sticks and game controllers. The District Court granted defendants' motions
for summary judgment of non-infringement and invalidity and entered final judgment
in their favor on May 9, 2005. Then, the inventor, who is also the largest shareholder
of Motionless Keyboard, moved to intervene pro se. On June 8, 2006, the Court of Appeals
issued its opinion [PDF]
affirming the District Court's denial of the motion to intervene. Location:
Room 203, 717 Madison Place, NW.
Deadline to submit initial comments to the
Federal Communications Commission (FCC) in response to
Locus Telecommunications, Inc.'s petition for a declaratory ruling that calls to a prepaid
calling card provider’s toll-free customer service numbers are not subject to payphone
compensation or, in the alternative, to initiate a rulemaking. See,
Notice [3 pages in PDF] (DA 07-513). This is proceeding is RM 11354.
|Tuesday, March 6
9:00 AM - 5:00 PM. Day one of a two day meeting to
the National Institute of Standards and
Technology's (NIST) Visiting Committee on Advanced Technology (VCAT). See,
notice in the Federal Register, February 13, 2007, Vol. 72, No. 29, at
10:00 AM. The
Senate Judiciary Committee's (SJC) Subcommittee on Terrorism, Technology and Homeland
Security will hold a hearing titled "Identity Theft: Innovative Solutions for an
Evolving Problem". Sen. Dianne Feinstein
(D-CA) will preside. Press contact: Tracy Schmaler (Leahy) at Tracy_Schmaler at judiciary
dot senate dot gov or 202-224-2154. Location: Room 226, Dirksen Building.
10:00 AM - 5:30 PM. The Securities and
Exchange Commission (SEC) will host an event titled "International Financial
Reporting Standards ``Roadmap´´ Roundtable". See, SEC
Location: SEC Headquarters, Room LL-002 (Auditorium), 100 F St., NE.
Deadline to submit initial comments to the
Federal Communications Commission (FCC) regarding its
Second Further Notice of Proposed Rulemaking
pertaining to aviation radio. The FCC adopted this item on October 4, 2006, and
released it on October 10, 2006. This item is FCC 06-148 in WT Docket No. 01-289. See,
notice in the Federal Register, December 6, 2006, Vol. 71, No. 234, at
|Wednesday, March 7
8:00 AM - 5:00 PM. Day one of a two day conference hosted by the
Food and Drug Administration (FDA) regarding the
proposed electronic Sentinel Network, to promote medical product safety. See,
notice in the Federal Register, January 18, 2007, Vol. 72, No. 11, at
Pages 2284-2285, and
notice in the Federal Register, February 15, 2007, Vol. 72, No. 31, at Page 7441. The
deadline to register to attend is February 28, 2007. Location: University System of
Maryland Shady Grove Center, 8630 Gudelsky Dr., Rockville, MD.
9:00 - 11:00 AM. Day two of a two day meeting to the
National Institute of Standards and Technology's
(NIST) Visiting Committee on Advanced Technology (VCAT). See,
notice in the Federal Register, February 13, 2007, Vol. 72, No. 29, at
10:00 AM. The Senate Commerce
Committee (SCC) will hold a hearing to examine the policy implications of
pharmaceutical reimportation from Canada. Location: Room 253, Russell Building.
TIME? The Federal Communications
Commission (FCC) will hold an auction seminar for
71, the broadband PCS spectrum auction to be held on May 16, 2007. See,
[69 pages in PDF].
Deadline to submit reply 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
Notice [4 pages in PDF] (DA 07-100). This proceeding is IB Docket No. 95-118.
|Thursday, March 8
8:00 AM - 5:00 PM. Day two of a two day conference hosted by the
Food and Drug Administration (FDA) regarding the proposed
electronic Sentinel Network, to promote medical product safety. See,
notice in the Federal Register, January 18, 2007, Vol. 72, No. 11, at
Pages 2284-2285, and
notice in the Federal Register, February 15, 2007, Vol. 72, No. 31, at
Page 7441. The deadline to register to attend is February 28, 2007. Location:
University System of Maryland Shady Grove Center, 8630 Gudelsky Dr.,
10:00 AM. The U.S.
Court of Appeals (FedCir) will hear oral argument in Morrow v.
Microsoft, App. Ct. No. 2006-1512, an appeal from the
U.S. District Court (NDCal) in a
patent case involving Microsoft's smart tags technology. Location: Room 203,
717 Madison Place, NW.
11:30 AM - 1:00 PM. The
National Science Foundation's (NSF) National
Science Board's (NSB) Commission
on 21st Century Education in Science, Technology, Engineering, and Mathematics
will hold a partially closed meeting. See,
notice in the Federal Register, February 22, 2007, Vol. 72, No. 35, at
Page 8032. Location: NSF, 4201 Wilson Blvd., Arlington, VA. The public is
excluded from attending the meeting. However, audio of the meeting will be
available in NSF Room 1235.
RESCHEDULED FOR MARCH 15.
2:00 - 4:00 PM. The Department of State's (DOS)
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,
the Federal Register, January 11, 2007, Vol. 72, Number 7, at Page 1363.
Location: undisclosed. See, rescheduling
notice in the Federal Register, February 12, 2007, Vol. 72, No. 28, at
|House Commerce Committee Targets Digital
2/27. Leaders of the House Commerce
Committee (HCC) sent a letter containing written interrogatories to Secretary of the
Treasury Henry Paulson.
The House Financial Services Committee
(HFSC) has jurisdiction over financial services. Nevertheless,
Rep. John Dingell (D-MI),
Rep. Joe Barton (R-TX),
Rep. Bart Stupak (D-MI), and
Rep. Ed Whitfield (R-KY), the Chairmen and ranking
Republicans on the full HCC, and its Subcommittee on Oversight and Investigations (SOI),
signed the letter.
The letter propounds three interrogatories:
"Please describe any investigations, reviews, actions, initiatives, reports,
or studies conducted by the Department of the Treasury (``Department´´), including
the Office of Terrorism and Financial Intelligence, Office of the Comptroller of
the Currrency (``OCC´´), and the Financial Crimes Enforcement Network (``FinCEN´´),
with respect to digital currencies."
"Please describe the Department's jurisdiction over digital currencies."
"Please identify any Money Service Business (``MSB´´) that has registered with FinCEN,
and whether that registration is current."
The letter states that "Pursuant to Rules X and XI of the Rules of the U.S.
House of Representatives" the HCC and its SOI "are conducting an inquiry into
illegal activity over the Internet", including "sexual exploitation of children
over the Internet".
Rule X of the House
Rules gives the HFSC jurisdiction over "banks and banking" and "money and
credit, including currency".
The letter raises "the increased use of alternative payment systems, such as
digital currencies, to purchase child pornography images over the Internet." It
also references "the use of these alternative payment systems by individuals and
firms dealing in the illegal importation of pharmaceuticals as well as child
pornography into the United States."
The letter adds that "According to law enforcement agents who testified
before the Subcommittee, digital currencies largely are unregulated by the
United States or any other country in the world. Therefore, the agents often are
unable to trace digital currency payments to their recipients who are either
distributing or transmitting the images or processing the payments for the
distributors. In addition, some digital currency companies either do not collect
or do not retain any information relating to the identity of the account holder,
further hampering law enforcement's ability to bring to justice the operators of
commercial child pornography and other Web sites that promote contraband."
The HCC staffers handling this matter are Karen Christian (Democrats) and
David Nelson and Steven Rangel (Republicans).
|People and Appointments
2/27. President Bush nominated Jeffrey Taylor to be the U.S. Attorney
for the District of Columbia for the term of four years. See, White House
2/28. The House amended and approved
HR 556, the
"National Security Foreign Investment Reform and Strengthened Transparency Act of
2007", a bill pertaining to the
Foreign Investment in the United States (CFIUS) process. The vote on final passage was
423-0. See, Roll
Call No. 110.
2/27. The U.S. Court of Appeals
(4thCir) issued its
opinion [8 pages in PDF]
in USA v. Dalton. The Court of Appeals vacated and remanded a 105 month sentence
for credit card fraud in violation of 18 U.S.C. § 1029(a)(2). Dalton used other people's
credit cards to buy about $100,000 of computer programs over the internet, which he then
sold via eBay. Dalton had eighteen prior convictions that
involved fraud, and numerous other convictions and arrests. Hence, the District Court imposed
an upward departure from the top of the advisory guidelines range. But, the Court of Appeals
ruled that 105 months was too much, and unreasonable. This case is USA v. Thomas Joseph
Dalton, U.S. Court of Appeals for the 4th Circuit, App. Ct. No. 05-5265, an appeal from
the U.S. District Court for the District of South Carolina, at Charleston, D.C. No.
CR-03-739, Judge David Norton presiding. Judge Wilkinson wrote the opinion of
the Court of Appeals, in which Judges Motz and Gregory joined.
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