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August 28, 2007, Alert No. 1,629.
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District Court Grants Summary Judgment to FCC in Broadband Data FOIA Case

8/27. The U.S. District Court (DC) issued a Memorandum Opinion [18 pages in PDF] in Center for Public Integrity v. FCC, a case regarding whether the contents of Forms 477, submitted to the Federal Communications Commission (FCC), must be produced by the FCC in response to a request made pursuant to the Freedom of Information Act (FOIA), which is codified at 5 U.S.C. 552. The District Court held that most of the information sought by the Center for Public Integrity (CPI) is exempt.

The FCC mandates the filing of Form 477 twice per year to enable it to study the extent of local telecommunications competition and deployment of broadband services. Form 477 is titled "Local Telephone Competition and Broadband Reporting". Wireline and fixed wireless telephone service providers, mobile telephone service providers, and broadband services providers are compelled to file this form twice per year, on March 1 and September 1, to provide the FCC with data on numbers of users.

The FCC uses data supplied in these forms to compile reports that contain aggregate data on, among other things, broadband availability. However, the FCC does not make available the data contained in each filed Form 477.

The FCC's data collection and reporting methodology has come under criticism, especially from proponents of network neutrality mandates, who have argued that the FCC overstates the extend of competition in the provision of broadband services.

The CPI and Progress & Freedom Foundation (PFF) hosted an event on June 28, 2007, titled "Conference on Broadband Statistics". The two panels were titled "What Do We Know About Availability and Use of Broadband in the United States?" and "What Kinds of Broadband Data Collection Policies Should the U.S. Employ?" See, PFF web page with audio and video (but not a text transcript) of this event.

See also, the FCC document [17 pages in PDF] titled "Instructions for Local Telephone Competition and Broadband Reporting Form (FCC Form 477)".

The CPI submitted a FOIA request to the FCC on August 24, 2006, seeking "all records collected with FCC Form 477".

The FCC denied the CPI's request in its entirety pursuant to FOIA Exemption 4.

The CPI filed a complaint in the District Court on September 25, 2006, alleging violation of the FOIA. The United States Telecom Association (USTelecom), AT&T, Verizon, Wireless Communications Association International (WCA), National Cable Telecommunications Association (NCTA), and the CTIA -- Wireless Association all either intervened as defendants, or submitted amicus curiae briefs supporting the refusal of the FCC to produce records.

The CPI subsequently narrowed its request, and the FCC expanded the basis of its denial to include Exemption 6.

5 U.S.C. 552(a) requires agencies to provide access to agency records. However, certain records are exempted. In particular, 5 U.S.C. 552(b) provides that "This section does not apply to matters that are ... (4) trade secrets and commercial or financial information obtained from a person and privileged or confidential ... (6) personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy".

The District Court held that Exemption 6 applies to the data in boxes five and six of the cover page of Form 477, which contain the name, phone number, and e-mail address of the person who prepared the data for filing. (The parties agreed to the production of the rest of the cover page.)

The District Court held that Exemption 4 applies to all data from Parts IV of Form 477, except for the part and line data from Part IV for June 2005 through June 2006.

The District Court also held that the FCC conducted an adequate search for records regarding the structure of the Form 477 database.

This case is Center for Public Integrity v. FCC, et al., U.S. District Court for the District of Columbia, D.C. No. 06-01644 (ESH), Judge Ellen Huvelle presiding.

Martin Advocates A La Carte

8/22. Federal Communications Commission (FCC) Chairman Kevin Martin wrote a letter [PDF] regarding "consumer benefits of a la carte".

The letter was addressed to leaders of the Black Leadership Forum, Hispanic Federation, Labor Council for Latin American Development, League of United Latin American Citizens, National Black Chamber of Commerce, National Congress of Black Women, and the Hispanic Telecommunications and Technology Project.

Kevin MartinMartin (at right) wrote that "An a la carte regime would enable viewers to buy their television channels individually, in smaller packages, or in the large packages currently offered. I believe that these forms of channel choice could provide all consumers the ability to lower their cable bills and to have greater control over the programming that comes into their homes."

Martin continued that "Channel choice is increasingly significant to consumers as the number of channels included in expanded basic, and the corresponding price to consumers, has continued to skyrocket. Indeed, cable rates have more than doubled in the last 10 years. Cable companies often point to the increased number of channels being offered as an explanation for the increase in prices. This explanation however, ignores the fact that most of these channels are not actually being watched."

"While I believe all consumers would benefit from channels being sold in a more a la carte manner, minority consumers, particularly those living in Spanish speaking homes, might benefit most of all. Currently cable and satellite providers often require subscribers to purchase dozens if not hundreds of channels in order to get Spanish language programming for which they must pay an additional cost. Under a la carte however, Spanish speaking homes could purchase only Spanish language channels", said Martin.

Solicitor General Urges Supreme Court to Take Case Regarding Patent Exhaustion Doctrine

8/24. The Office of the Solicitor General (OSG) filed an amicus curiae brief with the Supreme Court of the U.S. (SCUS) in Quanta Computer v. LG Electronics urging the SCUS to grant certiorari and clarify the patent exhaustion doctrine.

The U.S. Court of Appeals (FedCir) issued its opinion [31 pages in PDF] on July 7, 2006.

The SCUS requested the OSG to submit an amicus brief on April 16, 2007. See, story titled "Supreme Court Requests Solicitor General Brief in Patent Case" in TLJ Daily E-Mail Alert No. 1,566, April 17, 2007. The SCUS has not yet decided whether or not to take the case. See also, SCUS docket.

The OSG wrote in its brief that the question presented is "Whether a patentee's federal patent rights are exhausted by a licensee's authorized sale of an essential component that has no reasonable use other than in practicing the patented invention, when the patentee has purported to retain in its licensing agreement the right to pursue patent infringement claims against those who purchase the component from the licensee and use it for its only reasonable use."

It wrote that "The doctrine of patent exhaustion, also known as the first-sale doctrine, ... has evolved in the Federal Circuit in a manner that appears to conflict with this Court's patent-exhaustion cases, thereby creating uncertainty as to when a patentee may enforce, through federal-court actions for patent infringement (as opposed to state-law contract actions), downstream limitations on purchasers following an authorized sale. Whatever rights a patentee may have to enforce such limitations as a matter of contract, the question whether a patentee may invoke federal patent law to enforce such limitations against authorized purchasers is one of considerable practical importance, and this case presents an adequate vehicle for addressing that question." (Parentheses in original.)

This case is Quanta Computer, Inc., et al. v. LG Electronics, Inc., Supreme Court of the U.S., Sup. Ct. No. 06-937, a petition for writ of certiorari to the U.S. Court of Appeals for the Federal Circuit, App. Ct. Nos. 05-1261, 05-1262, 05-1263, 05-1264, 05-1302, 05-1303, and 05-1304. Judge Mayer wrote the opinion of the Court of Appeals, in which Judges Michel and Newman joined. The Court of Appeals heard appeals from the U.S. District Court for the Northern District of California, Judge Claudia Wilkin presiding.

People and Appointments

8/27. Deputy U.S. Trade Representative Karan Bhatia will leave the Office of the U.S. Trade Representative in October. See, OUSTR release.

More News

8/24. The U.S. Court of Appeals (10thCir) issued its opinion [25 pages in PDF] in Penncro Associates v. Sprint Spectrum, a contract dispute between a telecommunications company and its debt collector. Penncro contracted with Sprint to collect debts. Penncro filed a complaint in U.S. District Court (DKan) alleging breach of the contract. This District Court entered judgment for Penncro in the amount of $17 Million. Sprint appealed, arguing that the damages award was too high because the District Court misconstrued the term "consequential damages" in the contract. Penncro cross-appealed, arguing that the damages award should have been higher. The Court of Appeals affirmed the District Court on all issues. This case is Penncro Associates v. Sprint Spectrum L.P., U.S. Court of Appeals for the 10th Circuit, App. Ct. Nos. 06-3288, 06-3296, and 06-3365, appeals from the U.S. District Court for the District of Kansas, D.C. No. 04-CV-2549-JWL.

8/24. The Motion Picture Association of America (MPAA) announced in a release [PDF] that the Beijing Xi Cheng District People's Court, in Beijing, People's Republic of China (PRC), "ruled that a pair of DVD retail outlets, the Beijing Yongsheng Century International Cultural Co., Ltd. (Beijing Yongsheng Century) and its Century En Ze branch, were guilty of copyright infringement for selling pirated versions of Motion Picture Association (MPA) member company movies" and were ordered to pay six plaintiffs -- all MPA member companies -- damages and costs of RMB210,314 (US$27,795)." (All parentheses in original.) The MPA's Frank Rittman stated in this release that "the court's award represents little more than a slap on the wrist in the context of the scope of pirate activity in which Beijing Yongsheng Century and others were and are engaged." He added the lack of market access further contributes to DVD piracy.

8/21. The American Antitrust Institute (AAI) published a short paper [4 pages in PDF] titled "The Intel Case -- Is Europe Really Picking on Another U.S. Company? A Reply to the Wall Street Journal". The author is Robert Lande, Dircctor of the AAI. He argues that the European Commission's (EC) "ultimate goal is neither to attack an American company or to protect European firms". There is, he writes, no European chip manufacturer to protect. The WSJ published an opinion piece titled "Intel in Euro-Land" in its July 31, 2007, issue in which it wrote that "Computer chips are getting faster and smaller, and prices are dropping amid fierce competition. So naturally the European Commission thinks this is the ideal time to lodge another antitrust suit against another American technology titan." See also, EC release and story titled "European Commission Initiates Proceeding Against Intel Alleging Anticompetitive Behavior" in TLJ Daily E-Mail Alert No. 1,617, July 27, 2007.

Washington Tech Calendar
New items are highlighted in red.
Tuesday, August 28

The House will not meet due to the August District Work Period. See, House 2007 calendar. The House will next meet at 2:00 PM on September 4, 2007.

The Senate will not meet due to the August District Work Period. The Senate will next meet at 1:00 PM on September 4. See, Senate 2007 calendar.

1:00 - 3:00 PM. The Architectural and Transportation Barriers Compliance Board's (ATBCB) Telecommunications and Electronic and Information Technology Advisory Committee (TEITAC) will hold the second of two meetings by teleconference regarding "revising and updating accessibility guidelines for telecommunications products and accessibility standards for electronic and information technology". The deadline to register is August 22, 2007. See, notice in the Federal Register, August 3, 2007, Vol. 72, No. 149, at Pages 43211-43212. The dial in number is 888-790-5019. The passcode is 5944761. Location: Suite 1000, 1331 F St., NW.

Day one of a three day conference hosted by the National Institute of Standards and Technology's (NIST) titled "Performance Metrics for Intelligent Systems (PerMIS) Workshop". See, notice. August 21 is the deadline to register. The price to attend is $375. Location: Courtyard Gaithersburg Washingtonian Center, 204 Boardwalk Place, Gaithersburg, MD.

6:00 - 8:15 PM. The DC Bar Association will host a continuing legal education (CLE) program titled "What You Need to Know About Spam Cases: Litigation and Anti-Spam Regulations". The speakers will be Jason Levine (McDermott Will & Emery) and Yaron Dori (Hogan & Hartson). The price to attend ranges from $80 to $115. For more information, call 202-626-3488. See, notice. Location: DC Bar Conference Center, B-1 Level, 1250 H St., NW.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its request to refresh the record of its 2001 Further Notice of Proposed Rulemaking (FNPRM) regarding "the status of the market for the provision of telecommunications services in Multiple Tenant Environments (MTEs), and on whether the prohibition on exclusive access contracts in commercial MTEs should be extended to residential MTEs". See, notice in the Federal Register, May 30, 2007, Vol. 72, No. 103, at Pages 29928-29929. This item is DA 07-1485 WT Docket No. 99-217 and CC Docket No. 96-98.

Wednesday, August 29

10:30 AM - 1:30 PM. The Center for American Progress (CAP) will host an event titled "FISA: Safeguarding Both Security and Freedom". At 10:30 AM, there will be a panel discussion titled "Bloggers and Online Activists". The speakers will be Spencer Ackerman (TPMmuckraker.com), Nita Chaudhary (MoveOn.org Political Action), Caroline Fredrickson (American Civil Liberties Union), Julian Sanchez (Reason magazine), and Faiz Shakir (CAP). At 11:45 AM, there will be a light lunch. At 12:00 NOON, there will be a panel discussion titled "Restoring Checks and Balances". The speakers will be Mary DeRosa (Chief Counsel for National Security, Senate Judiciary Committee), former Rep. Mickey Edwards (R-OK), Morton Halperin (CAP), Kate Martin (Center for National Security Studies), and Mark Agrast (CAP). See, CAP notice and registration pages. For more information, contact John Neurohr at 202-682-1611 or jneurohr at americanprogress dot org. Location: CAP, 10th Floor, 1333 H St., NW.

Day two of a three day conference hosted by the National Institute of Standards and Technology's (NIST) titled "Performance Metrics for Intelligent Systems (PerMIS) Workshop". See, notice. Location: Courtyard Gaithersburg Washingtonian Center, 204 Boardwalk Place, Gaithersburg, MD.

Thursday, August 30

Day two of a three day conference hosted by the National Institute of Standards and Technology's (NIST) titled "Performance Metrics for Intelligent Systems (PerMIS) Workshop". See, notice. Location: Courtyard Gaithersburg Washingtonian Center, 204 Boardwalk Place, Gaithersburg, MD.

Extended deadline to submit reply 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, and Public Notice [PDF] (DA 07-3518) extending deadlines.

Friday, August 31

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response its Public Notice [32 pages in PDF] regarding the competitive bidding procedures for the 700 MHz band auction. The FCC released the Public Notice on August 17, 2007. It is DA 07-3415 in AU Docket No. 07-157. This auction is Auction No. 73. It is scheduled to commence on January 16, 2008. See, notice in the Federal Register, August 23, 2007, Vol. 72, No. 163, at Pages 48272-48285. See also, story titled "FCC Adopts 700 MHz Band Order" in TLJ Daily E-Mail Alert No. 1,619, July 31, 2007, and story titled "FCC Sets Date for 700 MHz Auction" in TLJ Daily E-Mail Alert No. 1,624, August, 20, 2007.

Saturday, September 1

Deadline to submit Form 477, titled "Local Telephone Competition and Broadband Reporting", to the Federal Communications Commission (FCC). See, Form 477 [MS Excel] and FCC document [17 pages in PDF] titled "Instructions for Local Telephone Competition and Broadband Reporting Form (FCC Form 477)".

Deadline to submit nominations to the U.S. Patent and Trademark Office (USPTO) for membership on the Patent Public Advisory Committee (PPAC) or Trademark Public Advisory Committee (TPAC). See, notice in the Federal Register, June 20, 2007, Vol. 72, No. 118, at Pages 33981-33982.

Monday, September 3

Labor Day. 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.

5:00 PM. Deadline to submit prepared testimony to the Department of Commerce's (DOC) Bureau of Industry and Security's (BIS) Deemed Export Advisory Committee (DEAC) for the DEAC's meeting of September 10, 2007. See, notice in the Federal Register, August 16, 2007, Vol. 72, No. 158, at Page 46035.

Tuesday, September 4

The House will return from its August recess at 2:00 PM. See, House 2007 calendar.

The Senate will return from its August recess at 1:00 PM. It will begin consideration of HR 2642 [LOC | WW], the Military Construction and Veterans Affairs Appropriations bill, Fiscal Year 2008. See, Senate 2007 calendar.

9:00 AM - 5:00 PM. Day one of a three day meeting of the Architectural and Transportation Barriers Compliance Board's (ATBCB) Telecommunications and Electronic and Information Technology Advisory Committee (TEITAC). Section 508 of the Rehabilitation Act of 1973, as amended, provides at 29 U.S.C. 794d that each federal agency "developing, procuring, maintaining, or using electronic and information technology" must provide comparable access to disabled federal employees, and to disabled members of the public who have access to and use of information and data of that agency; it further provides that each agency must comply with disability access regulations written by the ATBCB. See, notice in the Federal Register, August 23, 2007, Vol. 72, No. 163, at Pages 48252-48253. For more information, contact Timothy Creagan at 202-272-0016 or creagan at access dash board dot gov. Location: National Science Foundation, Room 555, 4121 Wilson Boulevard, Stafford Place II, Arlington, VA.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Maurice Mitchell Innovations LP v. Intel Corporation, App. Ct. No. 2007-1108, an appeal from the U.S. District Court (EDTex), D.C. No. 2:04-CV-450, a patent case. Location: Courtroom 201, 717 Madison Place, NW.

Deadline to submit comments to the Copyright Office (CO) regarding it interim rules pertaining to online registration of claims to copyright and recording of documents pertaining to copyright. See, notice in the Federal Register, July 6, 2007, Vol. 72, No. 129, at Pages 36883-36889.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) regarding whether to license Vehicle-Mounted Earth Stations as an application of the Fixed-Satellite Service in the conventional and extended Ku-band frequencies. The FCC adopted this NPRM on May 9, 2007 and released the text on May 15, 2007. This item is FCC 07-86 in IB Docket No. 07-101. See, notice in the Federal Register, July 18, 2007, Vol. 72, No. 137, at Pages 39357-39370.

EXTENDED TO SEPTEMBER 11. Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) regarding Section 612 of the Communications Act, which is codified at 47 U.S.C. 532, which requires cable operators to set aside channel capacity for commercial use by video programmers unaffiliated with the operator, and Section 616 of the Communications Act, which is codified at 47 U.S.C. 536, which prohibits a cable operator or other multichannel video programming distributor (MVPD) from requiring a financial interest in any program service as a condition for carriage of such service, from coercing a programmer to grant exclusive carriage rights, or from engaging in conduct that unreasonably restrains the ability of an unaffiliated programming vendor to compete fairly by discriminating against such vendor on the basis of affiliation or nonaffiliation. The FCC adopted this item on March 2, 2007, and released the text on June 15, 2007. This NPRM is FCC 07-18 in MB Docket No. 07-42. See, notice in the Federal Register, July 18, 2007, Vol. 72, No. 137, at Pages 39370-39377. See also, Public Notice [PDF] (DA 07-3736) extending comment deadlines.

Deadline to submit comments to the Department of Agriculture's Rural Utilities Service (RUS) regarding its proposed changes to its rules governing its Community Connect Broadband Grant Program. See, notice in the Federal Register, August 3, 2007, Vol. 72, No. 149, at Page 43199.

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