8/2. The Senate Commerce Committee (SCC) approved an amended version [PDF] of S 602 [LOC | WW], the "Child Safe Viewing Act of 2007" by voice vote

This bill would require the Federal Communications Commission (FCC) to initiate a notice of inquiry (NOI) to examine "(1) the existence and availability of advanced blocking technologies that are compatible with various communications devices or platforms; and (2) methods of encouraging the development, deployment, and use of such technology by parents that do not affect the packaging or pricing of a content provider’s offering."

The bill would require the FCC to consider not only cable broadcast television, but "wired, wireless, and Internet platforms", and not only TV sets, but also "DVD players, VCRs, cable set top boxes, satellite receivers, and wireless devices".

The FCC currently has no statutory authority to regulate internet based speech.

The bill would require that the FCC then write a report for the Congress detailing the finding of this NOI.

The bill would not impose any obligations upon providers of video programming, device manufacturers, or others. Nor would it require the FCC to promulgate any new rules.

The bill defines "advanced blocking technologies" as "technologies that can improve or enhance the ability of a parent to protect his or her child from any indecent or objectionable video or audio programming, as determined by such parent, that is transmitted through the use of wire, wireless, or radio communication."

Sen. Mark Pryor (D-AR), the lead sponsor of the bill, issued a release that states that "the goal of the Child Safe Viewing Act is to expand parents' ability to protect their children from inappropriate scenes and language on television, online, and other viewing devices. The bill requires the Federal Communications Commission (FCC) to review, within one year of enactment, technology that can help parents manage the vast volume of video and other content on television or the Internet.

Sen. Pryor (at right) stated "It's an uphill battle for parents trying to protect their kids from viewing inappropriate programming. I believe there is a whole new generation of technology that can provide an additional layer of help for these parents ... My bill simply lights a fire under the FCC to take a fresh look at new options in the marketplace."

The Progress and Freedom Foundation's (PFF) Adam Thierer wrote a paper [6 pages in PDF], that was released on August 1, 2007, titled "Convergence-Era Content Regulation? S. 602, ``The Child Safe Viewing Act of 2007´´". The author is the PFF's.

While he praised the bill for not requiring "direct regulation of certain types of speech or media content", he added that the bill is unnecessary because "the market for parental control technologies is flourishing for every type of media content and platform".

He continued that "there is no need for Congress or the FCC to mandate tools that already exist. Moreover, if the FCC starts ``approving´´ certain technologies, it is likely to retard the development of new blocking technologies. Companies might just stick with the approved technologies and not develop new ones. In a rapidly moving technical field like this, no government agency can keep up with what the private sector is or would be doing."

He continued that the bill "is also problematic because it could potentially expand the focus and scope of the FCC’s authority to meddle with private rating systems and parental control mechanisms".

He also stated that the bill's reference to "wired, wireless, and Internet platforms" potentially opens the door to "the beginning of convergence-era content regulation at the FCC".

Finally, Thierer wrote that the bill's specification that new technologies "operate independently of ratings pre-assigned by the creator of such video or audio programming" seems to imply that "existing voluntary rating and labeling systems cannot be trusted. That is a dangerous presumption."

8/1. News Corp. and Dow Jones & Co., Inc., owner of the Wall Street Journal, announced that News Corp. will acquire Dow Jones. Federal Communications Commission (FCC) Commissioner Michael Copps promptly issued a statement [PDF] asserting regulatory authority over the transaction.

He wrote that "It's interesting to hear the ``experts´´ claim the transaction faces no regulatory hurdles. Not so fast! This deal means more media consolidation and fewer independent voices, and it specifically impacts the local market in New York City. What's good for shareholders of huge media conglomerates isn't always what's good for the public interest or our civic dialogue."

Copps said that "We should immediately conduct a careful factual and legal analysis of the transaction to determine how it implicates specific FCC rules and our overarching statutory obligation to protect the public interest. I hope nobody views this as a slam-dunk."

Copps did not assert in this release that the Wall Street Journal is a local newspaper, or otherwise elaborate on the FCC's broadcast television newspaper cross ownership rules, or any other rules.

8/2. The Federal Communications Commission (FCC) adopted and released an order [2 pages in PDF] regarding LEC backup power sources in its proceeding titled "In the Matter of Recommendations of the Independent Panel Reviewing the Impact of Hurricane Katrina on Communications Networks". The order extends the effective date (to October 9, 2007) of the FCC's rule that requires local exchange carriers (LECs) and commercial mobile radio service (CMRS) providers to have "an emergency backup power source for all assets that are normally powered from local AC commercial power, including those inside central offices, cell sites, remote switches and digital loop carrier system remote terminals." This item is FCC 07-139 in EB Docket No. 06-119 and WC Docket No. 06-63.

8/1. The Federal Communications Commission (FCC) adopted and released a Second Further Notice of Proposed Rulemaking [31 pages in PDF] that relates to FCC regulation of ownership of media generally, and minority and woman ownership particularly. Initial comments are due by October 1, 2007. Reply comments are due by October 16, 2007. FCC Commissioners Michael Copps and Jonathan Adelstein issued a joint statement [PDF] to complain about "the inadequate time given for public comment", and to rail about media ownership generally. This item is FCC 07-136 in MB Docket Nos. 06-121, 02-277, 01-235, 01-317, 00-244, and 04-228.

8/2. The U.S. Court of Appeals (7thCir) issued its opinion in Harley Davidson v. Top Quality Service, a trademark case involving use of the word "hog".

Harley Davison makes big motorcycles. The word "hog" has long been used in connection with motorcycles. Subsequently, Harley created a motorcyclist club titled "Harley Owners Group", and registered the marks "HOG" and "H.O.G." with the U.S. Patent and Trademark Office (USPTO). Top Quality Service organized ocean cruises titled "HOGS ON THE HIGH SEAS", beginning in 2002, for motorcycle enthusiasts.

Harley filed a complaint in U.S. District Court (EDWisc) against TQS alleging trademark infringement, false designation of origin, and unfair competition claims under the Lanham Act, and related state law claims. The District Court granted summary judgment to TQS.

Harley brought the present appeal. The Court of Appeals reversed. It wrote that generic marks "ordinarily cannot function as trademarks", and that a "generic term is one that is commonly used as the name of a kind of goods." The U.S. Court of Appeals (2ndCir) held in 1999 in Harley-Davidson v. Grottanelli, 164 F.3d 806, that the term "hog" is generic, and denied Harley trademark protection.

However, in the present opinion, the 7th Circuit distinguished the two cases. It wrote that "A company's name may be generic as to one of its products, but not generic as to its other products, even those related to the first product." It concluded that the 2nd Circuit opinion only stands as authority for the proposition that "hog" is generic as applied to large motorcycles. In contrast, the present case involves the question of whether "hog" is generic as applied to a motorcyclist club. It concluded that it is not, and that Harley is entitled to trademark protection.

Hence, it reversed the District Court. Judge Evans dissented.

This is "hogwash", wrote Evans; the present case is indistinguishable from Grottanelli. He argued that the meaning of hog is not Harley motorcycles, and cited as authority the late Hunter Thompson, who stated that a hog is "the kind of cycle the German couriers used to run down dogs and chickens -- and people -- in World War II: low brutish machines, with drivers to match."

This case is H-D Michigan, Inc. and Harley-Davidson Motor Company, Inc. v. Top Quality Service, Inc., U.S. Court of Appeals for the 7th Circuit, App. Ct. No. 06-3618, an appeal from the U.S. District Court for the Eastern District of Wisconsin, D.C. No. 04 C 0533, Judge Charles Clevert presiding. Judge Flaum wrote the opinion of the Court of Appeals, in which Judge Williams joined. Judge Evans dissented.

8/2. The U.S. Court of Appeals (9thCir) issued its opinion [PDF] in Jada Toys v. Mattel, a trademark infringement, dilution, and copyright case involving the marketing of toy cars and trucks. The U.S. District Court (CDCal) granted summary judgment to Jada. The Court of Appeals reversed and remanded. This case is Jada Toys, Inc. v. Mattel, Inc., U.S. Court of Appeals for the 9th Circuit Circuit, App. Ct. No. 05-55627, an appeal from the U.S. District Court for the Central District of California, D.C. No. CV-04-02755-RGK(FMO), Judge Gary Klausner presiding. Judge Brian Sandoval, sitting by designation, wrote the opinion of the Court of Appeals, in which Judges Harry Pregerson and Johnnie Rawlinson joined.

8/1. The U.S. Patent and Trademark Office (USPTO) published a notice in the Federal Register that announces, describes, recites, and sets the effective date for, its amendments to its Trademark Rules of Practice. The notice states that these amendments require plaintiffs in Trademark Trial and Appeal Board (TTAB) inter partes proceedings "to serve on defendants their complaints or claims; to utilize in Board inter partes proceedings a modified form of the disclosure practices included in the Federal Rules of Civil Procedure; and to delete the option of making submissions to the Board in CD-ROM form." The effective date is November 1, 2007, except that some amendments are effective August 31, 2007. See, Federal Register, August 1, 2007, Vol. 72, No. 147, at Pages 42241-42264.

Ohlson		Bergmann

7/31. Federal Communications Commission (FCC) Commissioner Jonathan Adelstein announced that Barry Ohlson (at right), his Senior Legal Advisor, "has decided to begin considering other opportunities outside the Commission". Adelstein also announced that Scott Bergmann "will be assuming the position and responsibilities of Senior Legal Advisor". See, FCC release [PDF].

8/1. Federal Communications Commission (FCC) Commissioner Deborah Tate announced that Amy Blankenship will be her legal advisor for media issues. She previously worked for Sen. Sam Brownback (R-KS), who has been a member of the Senate Judiciary Committee (SJC) and the Senate Commerce Committee (SCC). Before that, she worked for Sen. Jeff Sessions (R-AL). The FCC's Bill Freedman, who had been temporarily advising Tate on media issues, will return to his position as Associate Chief of the FCC's Media Bureau. See, FCC release [PDF].

8/2. President Bush announced his intent to nominate Dennis Carlton to be a Member of the President's Council of Economic Advisers. He is currently a Deputy Assistant Attorney General in the Department of Justice's (DOJ) Antitrust Division. He is on a leave of absence from the University of Chicago's Graduate School of Business. He was an economic professor and a consultant at Lexecon. See, White House release.

8/2. The Senate Judiciary Committee (SJC) approved the nomination of Judge Leslie Southwick to be a Judge of the U.S. Court of Appeals for the 5th Circuit, by a vote of 10-9. See also, White House press office release. The full Senate has yet to vote on the nomination.

8/2. The Senate Commerce Committee (SCC) approved an amended version [7 pages in PDF] of S 781 [LOC | WW], the "Do-Not-Call Registry Fee Extension Act of 2007" by voice vote.

This bill would extend the authority of the Federal Trade Commission (FTC) to collect Do-Not-Call Registry fees to fiscal years after fiscal year 2007. This bill would also lower fees.

Sen. Mark Pryor (D-AR), the lead sponsor of the bill, issued a release that states that this bill "will reauthorize the FTC’s ability to collect fees from telemarketers to cover the operational costs of the program permanently. Currently, telemarketers pay $62 for each area code, with the first five area codes free and total fees capped at $17,050. They are required to search the registry every month and drop from their call lists the phone numbers of consumers who have registered."

The bill would lower these fees to $54 per area code, or a maximum of $14,850, or still less, under certain circumstances. Also, some users would be exempted from paying fees.

Sen. Pryor introduced the original version of this bill on March 6, 2007.

The House will meet at 10:00 AM for legislative business. See, Rep. Hoyer's weekly calendar [PDF].

The Senate will meet at 9:30 AM. It will resume consideration of S 1 [LOC | WW].

9:00 AM. The House Ways and Means Committee's Subcommittee on Trade will hold a hearing titled "Legislation Related to Trade with China". See, notice. Location: Room 1100, Longworth Building.

9:30 AM - 4:00 PM. Day two of a two day meeting of the U.S.-China Economic and Security Review Commission to consider drafts of material for its 2007 end of year report to the Congress. See, notice in the Federal Register, July 30, 2007, Vol. 72, No. 145, at Page 41584. Location: Conference Room 333, Hall of the States, 444 North Capitol St., NW.

10:00 AM. The Senate Commerce Committee (SCC) will meet in executive session. The agenda lists four bills, including S 781 [LOC | WW], a bill to extend the authority of the Federal Trade Commission (FTC) to collect Do-Not-Call Registry fees to fiscal years after fiscal year 2007, and S 602 [LOC | WW], the "Child Safe Viewing Act of 2007". See, notice. Location: Room 253, Russell Building.

The House will meet at 9:00 AM for legislative business. See, Rep. Hoyer's weekly calendar [PDF].

Deadline to submit comments to the U.S. Patent and Trademark Office (USPTO) in response to its requests for comments regarding its collection of information to facilitate its forecasting the number of future patent applications. See, notice in the Federal Register, June 4, 2007, Vol. 72, No. 106, at Pages 30777-30779.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Dolby Labs v. Lucent Technologies, App. Ct. No. 2006-1583, a patent infringement case. Location: Courtroom 203, 717 Madison Place, NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in PostX Corp. v. Secure Data in Motion, Inc., App. Ct. No. 2006-1565. See, Federal Circuit calendar. Location: Courtroom 201, 717 Madison Place, NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Overview Books v. U.S., App. Ct. No. 2006-5138. This is an appeal from the U.S. Court of Federal Claims, in a inartfully plead and argued challenge to the Library of Congress's (LOC) Cataloging in Publication (CIP) program, which discriminates against certain small publishers. See, Federal Circuit calendar. Location: Courtroom 201, 717 Madison Place, NW.

1:30 - 5:00 PM. Day one of a three day partially closed meeting of the National Science Foundation's (NSF) National Science Board. The August 6 portion of the meeting, which is closed to the public, will address various topics related to high performance computing. See, notice in the Federal Register, August 1, 2007, Vol. 72, No. 147, at Pages 42132-42134. Location: NSF, 4201 Wilson Blvd., Room 1235, Arlington, VA.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its request for comments regarding what constitutes a "near reservation" area for federal Lifeline and Link-Up support purposes. See, DA 07-1239 in CC Docket No. 96-45, and notice in the Federal Register, July 5, 2007, Vol. 72, No. 128, at Pages 36706-36708.

8:00 AM. Day two of a three day partially closed meeting of the National Science Foundation's (NSF) National Science Board. See, notice in the Federal Register, August 1, 2007, Vol. 72, No. 147, at Pages 42132-42134. Location: NSF, 4201 Wilson Blvd., Room 1235, Arlington, VA.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in US Philips v. Iwasaki Electric, App. Ct. No. 2007-1117, a patent infringement case. See, Federal Circuit calendar. Location: Courtroom 203, 717 Madison Place, NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Samsung Electronics v. Rambus, App. Ct. No. 2006-1579, a patent case. See, Federal Circuit calendar. Location: Courtroom 201, 717 Madison Place, NW.

6:00 - 9:15 PM. Day one of a two day continuing legal education (CLE) seminar hosted by the DC Bar Association titled "Software Patent Primer: Acquisition, Exploitation, Enforcement and Defense". The speakers will be Stephen Parker (Watchstone P+D), Brian Rosenbloom (Rothwell Figg Ernst & Manbeck), David Temeles (Temeles & Temeles), and Martin Zoltick (Rothwell Figg). See, notice. For more information, call 202-626-3488. The price to attend ranges from $105-$160. Location: DC Bar Conference Center, B-1 Level, 1250 H St., NW.

Day one of a two day conference hosted by the National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) titled "Federal Computer Security Program Managers' Forum Annual OffSite Meeting". See, notice. July 31 is the deadline to register. Location: Bethesda North Marriott Hotel and Conference Center, 5701 Marinelli Road, North Bethesda, MD.

7:45 AM. Day three of a three day partially closed meeting of the National Science Foundation's (NSF) National Science Board. See, notice in the Federal Register, August 1, 2007, Vol. 72, No. 147, at Pages 42132-42134. Location: NSF, 4201 Wilson Blvd., Room 1235, Arlington, VA.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Eon-Net LP v. Flagstar Bancorp, App. Ct. No. 2007-1132. See, Federal Circuit calendar. Location: Courtroom 201, 717 Madison Place, NW.

6:00 - 9:15 PM. Day two of a two day continuing legal education (CLE) seminar hosted by the DC Bar Association titled "Software Patent Primer: Acquisition, Exploitation, Enforcement and Defense". The speakers will be Stephen Parker (Watchstone P+D), Brian Rosenbloom (Rothwell Figg Ernst & Manbeck), David Temeles (Temeles & Temeles), and Martin Zoltick (Rothwell Figg). See, notice. For more information, call 202-626-3488. The price to attend ranges from $105-$160. Location: DC Bar Conference Center, B-1 Level, 1250 H St., NW.

Day two of a two day conference hosted by the National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) titled "Federal Computer Security Program Managers' Forum Annual OffSite Meeting". See, notice. July 31 is the deadline to register. Location: Bethesda North Marriott Hotel and Conference Center, 5701 Marinelli Road, North Bethesda, MD.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) regarding rule changes related to the DTV transition. The FCC adopted this NPRM on April 25, 2007, and released the text [93 pages in PDF] on May 18, 2007. It is FCC 07-70 in MB Docket No. 07-91. See, notice in the Federal Register, July 9, 2007, Vol. 72, No. 130, at Pages 37309-37344.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to the FCC notice requests comments that refresh the record on issues raised by the FCC's Notice of Proposed Rulemaking (NPRM) regarding interstate special access services provided by price cap local exchange carriers. The FCC released this notice on July 9, 2007. It is FCC 07-12 in WC Docket No. 05-25 and RM-10593. See, notice in the Federal Register, July 25, 2007, Vol. 72, No. 142, at Pages 40814-40816.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in International Gamco v. Multimedia Games, App. Ct. No. 2007-1034, a patent infringement case involving video gambling technology. See, Federal Circuit calendar. Location: Courtroom 203, 717 Madison Place, NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Z4 Technologies v. Microsoft, App. Ct. No. 2006-1638, a case regarding the availability of injunctive relief for infringement of a valid patent. See, Federal Circuit calendar. Location: Courtroom 201, 717 Madison Place, NW.

9:00 AM - 4:00 PM. The Federal Communications Commission's (FCC) Consumer Advisory Committee (CAC) will meet. See, Public Notice [PDF] (DA 07-2426) and notice in the Federal Register, July 18, 2007, Vol. 72, No. 137, at Pages 39422-39423. Location: FCC, Commission Meeting Room (TW-C305), 445 12th St., SW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Caritas Technologies v. Comcast, App. Ct. No. 2007-1057, a patent infringement case involving VOIP technology. See, Federal Circuit calendar. Location: Courtroom 201, 717 Madison Place, NW.

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