|FCC Releases Agenda for May 31
5/24. The Federal Communications Commission (FCC)
pages in PDF] for its event on Thursday, May 31, 2007, titled "Open Meeting".
The FCC will continue its process of extending the FCC's legacy regulatory regime
for telecommunications carriers to interconnected voice over internet protocol (VOIP) services. At this event,
the FCC is scheduled to adopt a Notice of Proposed Rulemaking (NPRM) regarding
mandating location tracking devices, and an Order adopting disability access
rules, for interconnected VOIP services.
The NPRM pertains to E-911 location accuracy and automatic location identification for
interconnected VOIP services. This is WC Docket No. 05-196 and CC Docket No. 94-102.
The FCC will also adopt a Report and Order (R&O) extending disability
access rules to interconnected VOIP providers. This order will revise the FCC's rules
47 U.S.C. § 255, regarding access by persons with disabilities, and its rules
47 U.S.C. § 225, regarding Telecommunications Relay Services
This order will be adopted in the FCC's omnibus IP enabled services proceeding, WC Docket
No. 04-36, its proceeding titled "Access to Telecommunications Service,
Telecommunications Equipment and Customer Premises Equipment by Persons with
Disabilities" and numbered WT Docket No. 96-198, and its proceeding titled
"Telecommunications Relay Services and Speech-to-Speech Services for Individuals with
Hearing and Speech Disabilities", and numbered CG Docket No. 03-123.
The FCC will also adopt an Order regarding recommendations
submitted by the Independent Panel Reviewing the Impact
of Hurricane Katrina on Communications Networks. This is EB Docket No. 06-119 and WC
Docket No. 06-63.
The FCC will adopt a Second Report and Order regarding the promotion of the "Next
Generation Emergency Alert System". This is EB Docket No. 04-296.
The FCC will adopt a Report and Order and Declaratory Ruling
defining physically inaccessible cable wiring as well as requesting carrier
rights to access inside wire subloops in multiunit premises. This is CS Docket
No. 95-184, MM Docket No. 92-260, and WC Docket No. 01-338.
Finally, the FCC will adopt a NPRM regarding market modifications for purpose of
satellite and cable carriage of television broadcast stations.
This event is scheduled for 9:30 AM on Thursday, May 31, 2007 in the FCC's Commission
Meeting Room, Room TW-C305, 445 12th Street, SW. The event will be webcast by the FCC. The
FCC does not always consider all of the items on its published agenda. The FCC sometimes adds
items to the agenda without providing the "one week" notice required
5 U.S.C. § 552b. The FCC does not always start its events at the scheduled
time, or at all. The FCC usually does not release at its events copies of the
items that it adopts at its events. The FCC has not always written the items
that it adopts at its events.
|ITIF Releases Report on Patent
5/22. The Information Technology and Innovation
Foundation (ITIF) released a
report [PDF] titled "Patents Pending: Patent Reform for the Innovation Economy".
It was written by the ITIF's
The report states that there are three problems with the current U.S. patent
system. First, it is "rife with delay". Second, the
U.S. Patent and Trademark Office (USPTO)
"has issued too many poor quality patents", as has been exposed by the
Blackberry litigation. Third, there is the "increase in patent litigation and
awards, which impose a significant tax on the U.S. innovation system."
The report further states that HR 1908 [
PDF] and S 1145 [LOC |
the "Patent Reform Act of 2007", introduced in April of this year, "would
provide significant needed reforms".
The report recommends reforms, many of which are addressed
in HR 1908 and S 1145, and some of which are in another bill. See,
titled "Summary of Patent Reform Act of 2007" in TLJ Daily E-Mail Alert
No. 1,567, April 19, 2007. See also, stories in the same issue titled "Patent
Reform Act of 2007 Introduced" and "Reaction to the Patent Reform Act of 2007".
And see, story titled "House Subcommittee Approves Patent Bill" in TLJ Daily
E-Mail Alert No. 1,582, May 16, 2007.
First, the report recommends that the Congress should end the
diversion of USPTO user fees to subsidize other government programs. This
is the subject of a separate bill, HR 2336 [LOC |
The report recommends "Giving the PTO regulatory authority to
It recommends "Requiring third parties submitting prior art to
include statements of relevance".
It also recommends "Creating a post-grant opposition process to
be conducted by the PTO". There is a post grant opposition process in Section 6
of HR 1908 and S 1145. However, the nature of this process is currently one of
the most controversial topics covered by the bills.
The report asserts that these proposals, if implemented, would
enable the USPTO to hire more patent examiners, reduce backlogs, and give
examiners more time to examine complex applications. It adds that this would
also give applicants incentives to provide more relevant statements and
encourage public participation in reducing questionable patents.
The report contains other recommendations. It proposes requiring "plaintiffs to
provide clear and convincing evidence that defendants acted ``reprehensibly´´ in order to
show willful infringement". (See, Section 5 of HR 1908 and S 1145.)
It proposes that courts "apply a reasonable royalty only to the economic value of
the patent’s contribution over the prior art and not on the entire market value of the
infringing product". (See, Section 5 of HR 1908 and S 1145.)
It proposes a venue requirement. Patent owners should be
required to "file cases in the district where the defendant has committed acts
of infringement and has a regular place of business". (See, Section 3 of HR 1908
and S 1145.)
It proposes a change from the first to invent to the first to file system.
(See, Section 3 of HR 1908 and S 1145.)
Finally, it proposes to apply the 18-month publication
requirement to all applications. (See, Section 9 of HR 1908 and S 1145.)
|District Court Dismisses
CAN-SPAN Act Case for Lack of Standing
5/15. The U.S. District Court
(WDWash) released its
pages in PDF] in Gordon v. Virtumundo, a private action brought
under the CAN-SPAM Act by recipients of e-mail against senders of e-mail. The
District Court granted summary judgment to the senders.
The Court held that the recipients have no standing under the federal
CAN-SPAM Act because they have not been "adversely affected" within the meaning
of the statute. The Court held that consumer burdens of spam are insufficient.
The recipient must be adversely affected in an manner affecting service
providers, such as network functioning, bandwidth
usage, increased demands for personnel, and new equipment needs. The District
Court also held that the recipients' related state law claim is preempted by the
James Gordon and Omni Innovations, LLC filed a complaint in U.S. District
Court against Virtumundo, Inc. and Adknowledge, Inc. alleging
violation of the CAN-SPAM Act of 2003, which is codified at
U.S.C. §§ 7701–7713, as well as several state law claims.
Standing to Sue Under the CAN-SPAM Act's Private Right of Action. The District
Court held that the plaintiffs in this action have no standing to bring CAN-SPAM claims.
The CAN SPAM Act does provide a private right of action. However, it is limited.
15 U.S.C. § 7706(g) provides that "A provider of Internet access service
adversely affected by a violation of" certain sections of the Act "may bring a
civil action in any district court of the United States ... to enjoin further violation by
the defendant ... or ... to recover damages". The statute does not provide clear
guidance as to the meaning of "internet access service" (IAS) or "adversely
The Court noted that the plaintiff James Gordon is an
individual, and the registrant of an internet domain to which e-mail was sent by
the defendants. The other plaintiff, Omni Innovations, is Gordon's business,
engaged in the business of software development and suing spammers. Omni leases
server space from GoDaddy. The Court wrote that "Plaintiffs do not have physical
control over the server ``box,´´ do not maintain or configure it, and have, in fact, never
seen it." However, the plaintiffs operate a web site, and provide free e-mail accounts
to a few people.
The Court also noted that the burden of spam sent to plaintiffs
is borne by GoDaddy and Verizon. It wrote that "Plaintiffs undisputedly have
suffered no harm related to bandwidth, hardware, Internet connectivity, network
integrity, overhead costs, fees, staffing, or equipment costs, and they have
alleged absolutely no financial hardship or expense due to e-mails they received
The Court reviewed the legislative history of the enactment of
the CAN-SPAM Act, and concluded that "First and foremost, the plain statutory
language requiring that (1) an IAS (2) suffer “adverse effect” is confirmed.
Specifically, the definition of an IAS ought to be considered in conjunction
with the harm caused to IASs (or ISPs as Congress alternately refers to them)
when trying to divine Congress’s intent. The most significant harms enumerated
by Congress were ISP- or IAS-specific, going well beyond the consumer-specific
burden of sorting through an inbox full of spam. These harms to IASs or ISPs
relate to network functioning, bandwidth usage, increased demands for personnel, and new
equipment needs, which eventually cost consumers." (Parentheses in original.)
The Court continued that "Because these harms were defined in
terms of Internet access service providers, and because standing was conferred
only on IASs (not consumers), it follows that such harms must be (1) possible
and (2) actually occur, if a private entity is to have standing under the Act.
... (reiterating that the private right of action is for a “provider of
Internet access service adversely affected by a violation,” not individual
e-mail users and not IASs experiencing no adverse effects). Thus, even if an
entity could meet the ill-defined and broad definition of an IAS, the “adverse
effect” to that entity must be both real and of the type uniquely experienced by
IASs for standing to exist." (Parentheses and emphasis in original.)
The District Court held that the plaintiff are not an "Internet access service
adversely affected" within the meaning of the statute, and thus lack standing to sue
under the CAN-SPAM Act. It reasoned that the plaintiffs qualify as an IAS. However, it added
that they have not "borne the ISP- or IAS-specific burdens described by Congress.
Therefore, because they cannot show ``adverse effect,´´ which is inherent in the definition
of private standing under 15 U.S.C. § 7706(g)(1), it is irrelevant whether Plaintiffs are a
true IAS. For the following reasons, the Court finds that Plaintiffs do not have CAN-SPAM
standing regardless of whether they are an IAS."
Federal Preemption. The District Court also held that the related state law claim
15 U.S.C. § 7707 provides that "This chapter supersedes any statute,
regulation, or rule of a State or political subdivision of a State that
expressly regulates the use of electronic mail to send commercial messages,
except to the extent that any such statute, regulation, or rule prohibits
falsity or deception in any portion of a commercial electronic mail message or
information attached thereto."
The court followed the reasoning of the
U.S. Court of Appeals (4thCir) in its
opinion [PDF] in Omega World Travel, Inc. v. Mummagraphics, Inc., 469
F.3d 348 (2006). See also,
titled "4th Circuit Rules in CAN SPAM Act Case" in
TLJ Daily E-Mail
Alert No. 1,492, November 20, 2006.
(The District Court's slip opinion in the present case incorrectly refers to
the Omega World Travel case as a 5th Circuit opinion.)
This case is James S. Gordon, et al. v. Virtumundo, Inc., et al., U.S.
District Court for the Western District of Washington, at Seattle, D.C. No.
06-0204-JCC, Judge John Coughenour presiding.
5/16. Symantec filed eight complaints
in U.S. District Court in California against Acortech, mPlus, Logical Plus,
SoftwareOutlets.com, Rowcal Distribution, Global Impact, Inc., Directron.com,
and eDirect Software alleging trademark infringement, copyright infringement,
fraud, unfair competition, trafficking in counterfeit labels and documentation,
and false advertising in connection with their alleged distribution of counterfeit Symantec
software. Symantec provides security software and services. See, Symantec
|Washington Tech Calendar
New items are highlighted in red.
|Friday, May 25
The House will not meet. It will next meet at 2:00 PM on Tuesday, June 5.
The Senate will meet at 9:30 AM. It will resume consideration of
S 1348, a
bill related to immigration and other matters.
8:30 AM - 12:30 PM. Day three of a three day meeting
of the U.S.-China Economic and Security Review
Commission titled "The Extent of the Government's Control of China's
Economy, and Implications for the United States". See,
notice in the Federal Register, May 10, 2007, Vol. 72, No. 90, at Page
26688. Location: Room 385, Russell Building, Capitol Hill.
Deadline to submit comments to the
Privacy and Civil Liberties Oversight
Board (PCLOB) regarding its interim final rule that establishes procedures for the
public to obtain information from the PCLOB under the federal Freedom of Information Act
(FOIA). The comment deadline and the effective date are both May 25. See,
notice in the Federal Register, April 10, 2007, Vol. 72, No. 68, at Pages
Deadline to submit initial comments to the
Federal Communications Commission (FCC) in response to
its notice of proposed rulemaking (NPRM) regarding installation of smaller antennas by
Fixed Service (FS) operators. This NPRM is FCC 07-38 in WT Docket No. 07-54. See,
notice in the Federal Register, April 25, 2007, Vol. 72, No. 79, at Pages
|Monday, May 28
There will be no issue of the TLJ Daily E-Mail Alert.
The House will not meet on Monday, May 28 through Monday, June 4, due
to the Memorial Day District Work Period. It will next meet on Tuesday, June
5. See, House 2007
The House will not meet on Monday, May 28 through Friday, June 1, due
to the Memorial Day District Work Period. See, Senate 2007
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.
|Tuesday, May 29
2:00 PM. The Federal Communications Commission's
(FCC) Advisory Committee on Diversity for Communications in the Digital Age
will hold an organizational meeting. See,
notice in the Federal Register, May 15, 2007, Vol. 72, No. 93, at Pages
27309-27310. Location: FCC, Commission Meeting Room (Room TW-C305), 445 12th
Deadline to submit comments to eight federal regulatory agencies in
response to their joint notice of proposed rulemaking (NPRM) regarding implementation
of the privacy provisions of the Gramm Leach Bliley Act. This NPRM proposes a safe
harbor model privacy form that financial institutions may use to provide disclosures
under the privacy rules. The eight agencies are the Department of the Treasury's Office
of the Comptroller of the Currency (OCC), Office of Thrift Supervision (OTS), Federal
Reserve System (FRS), Federal Deposit Insurance Corporation (FDIC), National Credit
Union Administration (NCUA), Federal Trade Commission (FTC), Securities and Exchange
Commission (SEC), and Commodity Futures Trading Commission (CFTC). See,
notice in the Federal Register, March 29, 2007, Vol. 72, No. 60, at Pages
Deadline to submit initial comments to the Federal
Communications Commission (FCC) in response to its request to update the
record in its equal access and nondiscrimination proceeding. The FCC
issued its original Notice of Inquiry (NOI) in February of 2002. See,
notice in the Federal Register, March 28, 2007, Vol. 72, No. 59, at Pages
14554-14555. This proceeding is CC Docket No. 02-39. See also,
Public Notice (DA 07-1071) [PDF] released on March 7, 2007.
|Wednesday, May 30
2:00 - 4:30 PM. The
National Telecommunications and Information
Administration's (NTIA) Spectrum Management Advisory Committee (SMAC) will meet.
It will hear recommendations of its Subcommittee on Technical Sharing
Efficiencies; it will discuss its Spectrum Sharing Test-Bed Proposal; it will
hear a report from its Subcommittee on Operational Sharing Efficiencies; and,
it will hear public comment. See,
notice in the Federal Register, May 15, 2007, Vol. 72, No. 93, at Pages
27294-27295. Location: Department of Commerce, Hoover Building, Room 4830,
1401 Constitution Ave., NW.
5:00 PM. Deadline to submit to the
Bureau of Industry and Security (BIS) requests to
make presentations at the BIS' Deemed Export Advisory Committee's (DEAC) meeting
on June 19, 2007, from 8:30 AM to 12:30 PM, in Boston, Massachusetts. See,
notice in the Federal Register, May 21, 2007, Vol. 72, No. 97, at Page 28467. The
BIS regulates exports of dual use products, including computers, components, software
and encryption products. Deemed exports include employment practices of companies
that make dual use products.
Deadline to submit reply comments to the Federal Communications Commission
(FCC) in response to its Further Notice of Proposed Rulemaking (FNPRM) regarding its rules
governing wireless licenses in the 698-806 MHz Band (700 MHz Band). See,
notice in the Federal Register, May 2, 2007, Vol. 72, No. 84, at Pages
24238-24253. The FCC adopted its
Report and Order and FNPRM [170 pages in PDF] on April 25, 2007, and
released it on April 27, 2007. This FNPRM is FCC No. 07-72 in WT Docket No.
06-150, CC Docket No. 94-102, WT Docket No. 01-309, WT Docket No. 03-264, WT
Docket No. 06-169, PS Docket No. 06-229, and WT Docket No. 96-86.
|Thursday, May 31
9:30 AM. The Federal Communications Commission (FCC) may hold an event
titled "Open Meeting". The FCC does not always start its events at the
scheduled time, or at all. See,
agenda [PDF]. Location: FCC, Commission Meeting Room (TW-C305),
445 12th St., SW.
6:00 - 8:15 PM. The Federal
Communications Bar Association's (FCBA) Transactional Practice Committee will host a
continuing legal education (CLE) seminar titled "Counseling Communications
Companies in Financial Trouble: Legal Issues and Operational Considerations".
The speakers will be Stewart Block (FCC Office of General Counsel), Robert Irving (Leap
Wireless), James Barker (Latham & Watkins), Evan Blum (Blum Advisors), and Gerard
Catalanello (Thelen Reid Brown Raysman & Steiner). The price to attend ranges from
$50 to $125. See, registration
form [PDF]. Registrations and cancellations are due by 5:00 PM on Tuesday, May 29.
Location: Wiley Rein, 1776 K St., NW.
TIME? The Department of Defense's (DOD) Defense Science
Board Task Force on Integrating Sensor-Collected Intelligence will hold another of its
closed sessions regarding intelligence, surveillance and reconnaissance systems. See,
notice in the Federal Register, April 2, 2007, Vol. 72, No. 62, at Page
15659. Location: Science Applications International Corporation, 4001 N.
Fairfax Drive, Arlington, VA.
|Friday, June 1
9:00 AM -- 4:00 PM. The Federal
Communications Commission (FCC) Public Safety and Homeland Security Bureau (PSHSB)
will hold an event titled "Spectrum Policy and Management: Building Interoperable
Public Safety Communications". See, FCC
[PDF]. Location: FCC, Commission Meeting Room (TW-C305), 445 12th St., SW.
2:00 - 3:00 PM. The Information
Technology Association of America (ITAA) will host a webcast continuing legal education
(CLE) seminar titled "Outsourcing Remedies: Problematic Outsourcing
Relationships: Is There a Cure?". See,
TIME? The Department of Defense's (DOD) Defense Science Board
Task Force on Integrating Sensor-Collected Intelligence will hold another of its closed
sessions regarding intelligence, surveillance and reconnaissance systems. See,
notice in the Federal Register, April 2, 2007, Vol. 72, No. 62, at Page 15659. Location:
Science Applications International Corporation, 4001 N. Fairfax Drive,
|Monday, June 4
9:00 AM - 12:00 NOON. The U.S. National Commission
on Libraries and Information Science
(NCLIS) will meet. See,
notice in the Federal Register, May 22, 2007, Vol. 72, No. 98, at Page
28714. Location: Room 642, Madison Building, Library of Congress, 101
Independence Ave., SE.
10:00 AM. The U.S.
Court of Appeals (FedCir) will hear oral argument in Microstrategy
v. Business Objects, App. Ct. No. 2006-1320. Location: Courtroom 203.
10:00 AM - 12:00 NOON. The
National Telecommunications and Information
Administration (NTIA) will hold a public meeting regarding the Public
Safety Interoperable Communications Grant Program. See, NTIA
notice in the Federal Register, May 22, 2007, Vol. 72, No. 98, at Pages
28685-28686. Location: Auditorium,
Department of Commerce, 1401 Constitution Ave., NW.
5:00 PM. Deadline to submit applications to the
National Institute of Standards and Technology (NIST)
for funding for "basic research in the field of nanoscale electronics focused on
developing the next logic switch beyond complementary metal oxide semiconductor
notice in the Federal Register , May 4, 2007, Vol. 72, No. 86, at Pages
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