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November 20, 2007, Alert No. 1,678.
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Copyright Alliance Seeks Positions of Presidential Candidates on Copyright Issues

11/20. The Copyright Alliance sent a letter [PDF] and short list of questions [PDF] to Republican and Democratic candidates for President in the 2008 election regarding their positions on copyright issues. See also, CA release.

Patrick Ross, head of the CA, stated at a news conference on November 20, 2007, that the CA does not plan to endorse any candidate. His letter states that "we will be informing the creative community and the public at large where our presidential candidates stand on copyright and artists' rights."

Dan Glickman, head of the Motion Picture Association of America (MPAA), wrote in a statement published in the CA web site that "a key issue for the 2008 presidential candidates includes their commitment to recognizing the critical importance of intellectual property rights".

"As candidates debate the methods of ensuring our global competitiveness and the future health of the American economy, there is no doubt that this pivotal and increasingly important engine of intellectual property is central to our future", said Glickman. "This is not merely a ``movie industry创 issue, but rather an issue of economic competitiveness, and I look forward to hearing more from our presidential candidates about how they will protect intellectual property as president."

Mitch Bainwol, head of the Recording Industry Association of America (RIAA), wrote in a statement published in the CA web site that "The next President will significantly shape or initiate policies, both national and international, that dramatically affect the health and vitality of the intellectual property sector, especially our copyright community. Whether it's ensuring that our trading partners comply with their international obligations to protect copyrights, or strengthening enforcement to address copyright theft here at home, or crafting new rules of the road for fair commerce in a digital world, federal policies have a real, and increasing, impact on our day-to-day lives and businesses."

Bainwol added that "there will be those who ... will suggest the notion of property rights in a digital age is little more than a quaint relic of the past. They will warp concepts of fair use into justification for free use under almost any circumstances. They will seek to weaken enforcement penalties to diminish respect for IP. They will assume the flow of content continues regardless of the existence of incentives to create. That's why elections do matter."

The CA letter propounds five questions regarding substantive copyright laws, application of copyright law to digital media, copyright enforcement procedure, copyright provisions in trade agreements, and free speech rights.

First, "How would you promote the progress of science and creativity, as enumerated in the U.S. Constitution, by upholding and strengthening copyright law and preventing its diminishment?"

Second, "How do you feel the rights that have served our economy and spurred creativity in the physical world should apply in the digital world?"

Third, "How would you protect the incentive to create by committing sufficient resources to support effective civil and criminal enforcement of copyright laws domestically and internationally?"

Fourth, "How would you ensure inclusion of copyright protections in bilateral, regional and multilateral trade agreements to protect creators and foster global development?"

Fifth, "How would you protect the rights of creators to express themselves freely under the principles established in the First Amendment?"

DOJ Requires Swarthmore to Install Assistive Listening Devices

11/20. The Department of Justice (DOJ) entered into a settlement agreement with Swarthmore College regarding Title III of the Americans with Disabilities Act (ADA), which pertains to "public accommodations". It contains typical mandates regarding making parking spaces, building entrances, and dormitories more accessible to physically disabled persons.

It also requires Swarthmore to install "permanent assistive listening devices" in lecture halls, meeting rooms, and other "assembly areas".

The document contains no mandates regarding educational materials in Swarthmore's web site, such as making textual content available in audio format for blind people, or making audio content available in text for deaf people.

TLJ spoke with Stuart Hain, Association VP for Facilities and Services at Swarthmore, who signed the agreement. He said that its web site was "not part of the discussion". He added that Swarthmore is a small liberal arts college that focuses on direct faculty student interaction. Hence, there is little educational material in its web site.

Former Rep. Charles Canady (R-FL), when he was Chairman of the House Judiciary Committee's (HJC) Subcommittee on the Constitution, organized a hearing on the applicability of the ADA to web sites. He graduated from Swarthmore. See, story titled "Do Web Sites Violate the Americans with Disabilities Act?", Tech Law Journal, February 10, 2000.

9th Circuit Rules on Standing and Discovery in ADA Cases

11/9. The U.S. Court of Appeals (9thCir) issued its divided opinion [PDF] in Doran v. 7-Eleven, a case brought under the Americans with Disabilities Act (ADA). This case foreshadows some of what internet and technology companies may face if, or when, the federal judiciary extends the ADA to them.

Introduction. The majority opinion carves out an exception to the Constitutional case or controversy requirement, and to the Supreme Court's opinions interpreting the case or controversy requirement, for ADA cases. The opinion further provides that discovery is available in ADA cases, in the absence of any case or controversy, for the purpose of seeking evidence of an unknown violation of the ADA.

Article III of the Constitution limits federal "judicial Power" to "Cases" and "Controversies". The Supreme Court has held over a number of cases that to establish such standing to bring suit, the plaintiff must establish that he or she has (1) suffered an injury in fact, an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical, (2) which is fairly traceable to the challenged act, and (3) is likely to be redressed by a favorable decision. See, opinion in Sierra Club v. Morton, 405 U.S. 727 (1972), opinion in Bennett v. Spear, 520 U.S. 154 (1997), opinion in Warth v. Seldin, 422 U.S. 490 (1975), and opinion in Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992).

The majority opinion in the present case dispenses with the injury in fact requirement for ADA cases.

The case will strengthen the position of trial lawyers and ADA plaintiffs in the 9th Circuit. It will enable them to pursue discovery unrelated to claims which they have plead, potential claims of which they have no knowledge, and claims for which the plaintiff has suffered no injury.

To the extent that public accommodations like 7-Eleven stores are physical things that are open to the public, much discovery takes place absent formal discovery or discovery orders. However, if the ADA is extended to web sites, software producers, and other technology companies, plaintiffs' lawyers may seek access to the underlying technology, such as software source code. Allowing plaintiffs lawyers free reign to engage in discovery of proprietary information has the potential to wreak havoc in technology sectors.

It should be noted that this is an opinion of the 9th Circuit, which frequently disregards Supreme Court precedent. Its reversal rate, and the respect that other circuits give to these opinions, reflect this disregard. On the other hand, this opinion is now the law in the 9th Circuit, and almost all of the deep pocket technology companies likely to be targeted by ADA suits are subject to the jurisdiction of District Courts within the 9th Circuit.

Background. The plaintiff in this case, Jerry Doran, is a professional ADA plaintiff. The Court of Appeals noted that the 7-Eleven store in question is located "about 550 miles from his home". That is, he drove 550 miles to visit a store in order to have standing under the ADA to bring this suit.

Doran is a frequent ADA plaintiff, and many opinions have been written in his cases. For example, the U.S. District Court (CDCal) wrote in a Memorandum of Decision [20 pages in PDF] in another of his cases, Doran v. Del Taco, D.C. No. 04-046-CJC (ANx), that "He has filed over two hundred disability access lawsuits in federal and state courts throughout California".

The defendant, 7-Eleven, operates convenience stores around the country. The store at issue in the present litigation is located in Anaheim, California. It has parking reserved for handicapped persons, a ramp, and other things to enable access for handicapped persons.

The Court of Appeals wrote that Doran alleged in his deposition that "the striping outlining the disabled parking space was faded", that "the wheelchair ramp was too steep", and that once he entered the store he was not allowed to use the "employees-only restroom".

Doran's lawyers also sent a second person, described by the Court of Appeals as an "expert", who searched for additional alleged violations of the ADA. He prepared a report that asserted that an ATM machine was too high, and that the condiments counter required too long of a reach.

The District Court granted summary judgment to 7-Eleven on all of Doran's claims. It also held that Doran did not have standing to challenge the alleged barriers identified in the expert report because Doran neither encountered nor had personal knowledge of those alleged barriers.

Court of Appeals Majority. The Court of Appeals affirmed the grant of summary judgment as to all of the claims based upon the allegations known to Doran. The Court of Appeals reversed on the issue of standing.

It held that Doran has standing to challenge alleged ADA violations that he did not experience, and of which he had no knowledge.

It also held that he may conduct discovery as to claims that he has not brought. (In contrast, FRCP Rule 26 provides that "Parties may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party ...")

This was a split opinion. The two judge majority reached a conclusion regarding standing that cannot be reconciled with the opinions of the Supreme Court. In this case, the 9th Circuit is defying Supreme Court precedent in order to carve out an exception to the standing requirement for ADA cases.

The three judge panel split according to circuits. Judges Jerome Farris and Ronald Gould, who joined in a two judge per curiam majority opinion, are both Judges of the 9th Circuit. Judge Kevin Duffy, who dissented, is a Judge of the U.S. District Court for the Southern District of New York, which is in the 2nd Circuit. (The panel also broke down along party lines. Judge Gould was appointed by former President Bill Clinton. Judge Farris is a senior status Judge who was appointed by former President Jimmy Carter. Judge Duffy is a senior status Judge who was appointed by former President Richard Nixon.)

The majority, perhaps recognizing their opinion's deficiency on the issue of standing, went to great lengths to rationalize it. However, rather that applying Supreme Court precedent, they relied upon "prudential", "judicial economy", and "practical concerns". They announced their broad conclusions regarding discovery without discussion of discovery standards.

With respect to standing, the majority wrote that "when a disabled individual knows that a facility is noncompliant with the ADA in at least some respects but does not know the full extent of the noncompliance, he or she is likely to be deterred from returning to that facility, even if some of the violations are corrected, until he or she can get more information about the extent of the violations."

The majority continued that "Reinforcing that an ADA plaintiff has standing because of deterrence from returning in the face of uncertainty, it is prudent to eliminate that uncertainty through the judicial device of discovery, thus allowing the plaintiff to obtain by formal means the information about the scope of the defendant's violations that he or she was unable to ascertain personally because of those same violations."

The majority's opinion holds that "where a disabled person has Article III standing to bring a claim for injunctive relief under the ADA because of at least one statutory violation of which he or she has knowledge and which deters access to a place of public accommodation, he or she may conduct discovery to determine what, if any, other barriers affecting his or her disability existed at the time he or she brought the claim."

It concluded that "So long as there is an actual or imminent injury from a barrier encountered or about which a person had knowledge, deterring use of the public accommodation, the disabled person has standing to enter our court system. The scope of discovery and claims should then naturally permit challenge to any barriers to use related to that person's disability."

Court of Appeals Dissent. The dissenting opinion states that "The majority's approach compromises longstanding constitutional principles for the sake of convenience, and ignores the fact that no one -- not even Congress -- can preempt the Constitution and confer standing to a party for things that have not injured him."

It added that "Standing is indispensable; it cannot be disregarded because it is inefficient, or because to do otherwise might, as the majority opines, not pragmatically ``make sense.创"

The dissenting opinion states that "the majority's approach gives ADA plaintiffs a carte blanche, an invitation to bring litigation even outside the presence of a real live case or controversy".

Abusive ADA Litigation. The majority opinion of the Court of Appeals in the present case is quite favorable to Doran and his attorneys. Not all courts have been so gracious with Doran. For example, in Doran v. Del Taco, the District Court addressed the potential for abuse of the ADA generally, and Doran individually.

As for Doran, the Court wrote that "In order to prevail on his disability access claims against Del Taco, Mr. Duran had to convince the Court that he actually visited the Del Taco restaurant in Mission Viejo and encountered architectural barriers there prior to the date that he filed his complaint. Mr. Doran has not been successful in this regard. There were too many inconsistencies and inaccuracies" in his deposition testimony.

As for abusive ADA litigation, the Court wrote that "Despite the important mission of the ADA, there are those individuals who would abuse its private cause of action provision by filing lawsuits solely with intent to profit financially. The potential for abuse of the ADA has been well documented in the Central District of California and in other districts throughout the country. ... Courts have referred to this proliferation of ADA lawsuits as a ``cottage industry创 and have labeled the plaintiffs who file these lawsuits as ``professional plaintiffs,创 ``serial plaintiff,创 and ``professional pawns.创"

"This ability to profit from ADA litigation has led some law firms to send disabled individuals to as many businesses as possible in order to have them aggressively seek out all violations of the ADA." The Court continued that "Then, rather than informing the businesses of the violations and attempting to remedy them, lawsuits are filed and damage awards are requested."

"The consequences of this abuse of the ADA are severe: businesses and insurers are harmed, the integrity of the bar is called into question, and the public's confidence in the courts is impaired."

"Most significant, however, is the adverse effect this type of abusive litigation has on disabled individuals themselves. These lawsuits denigrate the important purpose behind the ADA and create a backlash against those disabled persons who rely on the ADA as a means of achieving equal access." The Court concluded that "Indeed, businesses may become fearful of disabled patrons, thereby leading to more misunderstanding, isolationism, and discrimination. Simply put, this litigation abuse of the ADA results in the exact harmful consequences that Congress sought to eradicate by passing the ADA."

Commentary: Significance for Technology Companies. This case has no consequences for the question of whether or not the ADA applies to e-commerce sites, advertising supported web sites, software applications, and other new technologies. However, if the ADA is extended to new technologies, then this opinion could be significant to technology companies.

The plain language of the ADA does not reach these new technologies.

Title III of the ADA pertains to "public accommodations". (Title I deals with disability based discrimination in employment. Title II deals with disability access to public services.) Title III is codified at 42 U.S.C. Ё 12181-12189. This is the title that requires the removal of access barriers for persons with physical disabilities.

Section 12181 provides definitions for Title III. Subsection 12181(7) enumerates twelve categories of "public accommodations". It includes such things as "inn, hotel, motel", "restaurant", "motion picture house", "grocery store", "bank", and "terminal, depot, or other station used for specified public transportation". The entire list is physical places. Nothing in the statute enumerates or suggests that it applies to web sites or software.

Section 12182 provides that "No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation". (Parentheses in original.)

Section 12188 provides a private right of action.

The U.S. District Court (SDFl) held in Access Now v. Southwest Airlines that the ADA does not apply to web sites. Access Now alleged violation of Title III of the ADA on the basis that Southwest Airlines had not made its web site accessible to blind persons using a screen reader. The District Court dismissed the complaint for failure to state a claim, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure (FRCP). The Court wrote that this was a case of first impression, and reached its decision on the basis of statutory construction. It held that "the plain and unambiguous language of the statute and relevant regulations does not include Internet websites among the definitions of ``places of public accommodation创".

See, October 18, 2002, Order Granting Defendant's Motion to Dismiss, which is also published at 227 F.Supp.2d 1312, and story titled "District Court Holds ADA Does Not Apply to Web Site" in TLJ Daily E-Mail Alert No. 538, October 30, 2002. Then, on September 24, 2004, the U.S. Court of Appeals (11thCir) issued its opinion [PDF] dismissing the appeal, without addressing the merits of the case, on the basis that the "none of the issues on appeal are properly before us". The District Court case number is 02-21734 CV-PAS. The Court of Appeals case number is 02-16163.

However, there are now several cases pending in District Court that urge the courts to extend the ADA to web sites. Perhaps the most notable of these is National Federation of the Blind v. Target, D.C. No. C 06-01802 MHP, is pending in the U.S. District Court (NDCal). See, September 5, 2006, Memorandum and Order [26 pages in PDF] denying motion to dismiss. See also, story titled "District Court Issues Ruling in Case Involving Claim That Web Site Violates the ADA" in TLJ Daily E-Mail Alert No. 1,657, October 18, 2007.

Moreover, the Department of Justice (DOJ), which has authority to enforce the ADA, has taken some action towards extending the ADA to new technologies. See, story titled "DOJ Applies ADA Public Accommodations Status to Online Educational Service" and story titled "Commentary: Extending ADA Public Accommodations Treatment to Online Activities" in TLJ Daily E-Mail Alert No. 1,649, October 2, 2007.

While the just released opinion in Doran v. 7-Eleven says nothing about applying the ADA to new technologies, it could have several consequences for technology companies if the ADA is extended to them.

First, it should be noted that this is a 9th Circuit opinion that contradicts Supreme Court precedent. If it is not overturned on en banc review, or by the Supreme Court, other circuits may follow the long line of Supreme Court cases, rather than this opinion.

Brick and mortar public accommodations located in other circuits may not be subject to the jurisdiction of the courts in the 9th Circuit, and hence, may not be affected by this opinion. However, online businesses and software companies sell to customers in the 9th Circuit. Hence, in whatever circuit they may be located they might be subject to suit in the 9th Circuit, and hence, to this opinion.

Second, even under this opinion, the plaintiff must allege some violation of the ADA. For brick and mortar public accommodations that means that the disabled plaintiff must visit the stores, restaurants, and other public accommodations. It takes time to travel and inspect. Doran had to drive 550 miles to visit the 7-Eleven in order to bring the present lawsuit.

In contrast, if the ADA is extended to new technologies, Doran and his attorneys will be able to search for litigation targets by surfing the web.

Third, if the ADA is extended to new technologies, then the discovery component of the majority's opinion will impact these new technologies more severely than brick and mortar public accommodations.

Discovery in cases against actual public accommodations is inherently simple, easy, and non-burdensome. Accommodations are physical places. Much discovery takes place by visiting the premises. Moreover, public accommodations are open to the public, which includes tort lawyers and plaintiffs. There is little if any disruption to the business operations of 7-Eleven stores when tort mills send their attorneys or staff around to measure the width of handicap parking spaces.

In contrast, discovery from web site operators and software sellers would be fundamentally different, and vastly more disruptive and damaging.

The targeted operations of these businesses exist in their source code for software, hardware, and network designs, which are mostly non-public, secret, and protected by copyright law and trade secret law.

This is valuable proprietary information the disclosure of which could cause harm to the target of ADA actions. Tech companies may be reluctant to disclose such information to persons who possess the ethical luster of California tort lawyers.

Tech companies might make settlement payments in meritless ADA actions to avoid disclosing proprietary information during pretrial discovery. In turn, plaintiffs' lawyers may target tech companies with ADA suits in District Courts in the 9th Circuit in anticipation that they will make payments to avoid disclosures.

If the ADA is to be extended to tech companies, then the present opinion deprives tech companies of some of the legal tools for ending frivolous suits, including summary judgment and dismissal for lack of standing. In the present case, the majority affirmed the summary judgment against Doran on all of the claims that he could articulate, yet the majority allowed the suit to continue, with discovery into things that caused him no harm.

Doran's attorneys can now conduct discovery at the store regarding such things as the height of the ATM machine. The burden on 7-Eleven is limited. In contrast, giving plaintiffs' lawyers free reign to examine source code would be a considerable burden.

FCC Releases Tentative Agenda for November 27 Event

11/20. The Federal Communications Commission (FCC) released a tentative agenda [4 pages in PDF] for its event scheduled for November 27, 2007, titled "Open Commission Meeting".

The FCC is scheduled to adopt a Notice of Proposed Rulemaking (NPRM) regarding extension of the current five year registration period for the Do Not Call Registry. The FCC's proceeding is numbered CG Docket No. 02-278.

The Congress enacted the Do-Not-Call Implementation Act in 2003 to implement a Do Not Call Registry. It is Public Law No. 108-10. It is codified at 15 U.S.C. 6101 note. Section 3 requires the FCC to adopt certain rules. Section 2 authorizes the Federal Trade Commission (FTC) to adopt rules.

The 2003 Act is silent on the subject of automatic expiration. However, the FCC and FTC wrote a five year expiration into their rules.

There is also legislation pending to preclude expiration of do not call registrations. On October 30, 2007, the House Commerce Committee (HCC) amended and approved HR 3541 [LOC | WW], the "Do-Not-Call Improvement Act of 2007". On the same day, the Senate Commerce Committee (SCC) amended and approved S 2096 [LOC | WW], the "Do-Not-Call Improvement Act of 2007".

See also, stories titled "House Commerce Committee Approves Bill to Preclude Expiration of Do Not Call Registrations" and "Senate Commerce Committee Approves Bill to Preclude Expiration of Do Not Call Registrations" in TLJ Daily E-Mail Alert No. 1,666, October 31, 2007. And see, story titled "Sen. Dorgan Introduces Bill to Prevent Automatic Expiration of Do Not Call Registrations" in TLJ Daily E-Mail Alert No. 1,648, October 1, 2007.

The FCC is scheduled to adopt a NPRM regarding petitions for forbearance under Section 10 of the Communications Act, which is codified at 47 U.S.C. 160(c).

This section provides that "Any telecommunications carrier, or class of telecommunications carriers, may submit a petition to the Commission requesting that the Commission exercise the authority granted under this section with respect to that carrier or those carriers, or any service offered by that carrier or carriers. Any such petition shall be deemed granted if the Commission does not deny the petition for failure to meet the requirements for forbearance under subsection (a) of this section within one year after the Commission receives it, unless the one-year period is extended by the Commission. The Commission may extend the initial one-year period by an additional 90 days if the Commission finds that an extension is necessary to meet the requirements of subsection (a) of this section. The Commission may grant or deny a petition in whole or in part and shall explain its decision in writing." (Emphasis added.)

On October 22, 2007, Rep. John Dingell (D-MI) and Rep. Ed Markey (D-MA) introduced HR 3914 [LOC | WW], the "Proper Forbearance Procedures Act of 2007", a bill to remove the "deemed granted" clause from the forbearance petition section. See also, story titled "Reps. Dingell and Markey Introduce Bill to End Deemed Granting of FCC Forbearance Petitions" in TLJ Daily E-Mail Alert No. 1,661, October 24, 2007.

The FCC is scheduled to adopt a Report and Order (R&O) and 3rd Further NPRM regarding "initiatives designed to increase participation in the broadcasting industry by new entrants and small businesses, including minority- and women-owned businesses".

The FCC is scheduled to adopt a 3rd R&O regarding low power FM (LPFM) service. The FCC's proceeding is numbered MB Docket No. 99-25.

The FCC is scheduled to adopt a Report and Order regarding "standardizing and enhancing information provided to the public on how broadcast television stations serve the public interest". The FCC's proceeding is numbered MM Docket No. 00-168.

The FCC is scheduled to adopt a 13th annual report to the Congress on the status of competition in the market for delivery of video programming. The FCC's proceeding is numbered MB Docket No. 06-189. The FCC is also scheduled to adopt a Notice of Inquiry (NOI) that requests comments to assist it in preparing its 14th annual report to Congress on the status of competition in the market for the delivery of video programming.

See, the FCC's Twelfth Annual Report [161 pages in PDF] adopted on February 10, 2006, and released on March 3, 2006. See also, story titled "FCC Describes Annual Report on Video Competition" in TLJ Daily E-Mail Alert No. 1,308, February 13, 2006.

The FCC is scheduled to adopt a R&O that amends its commercial leased access and program carriage rules. This R&O relates to the FCC's proceeding titled "In the Matter of Leased Commercial Access; Development of Competition and Diversity in Video Programming Distribution and Carriage" and numbered MB Docket No. 07-42.

This event is scheduled for 9:30 AM on Tuesday, November 27, 2007, in the FCC's Commission Meeting Room, Room TW-C305, 445 12th Street, SW. The FCC's recent events titled "Open Commission Meeting" have rarely been held at the time announced by the FCC. The FCC does not always take up all of the items on its published program. The FCC sometimes adds items to the program without providing the "one week" notice required 5 U.S.C. 552b. The FCC usually does not release at its events copies of the items that it adopts at its events.

Washington Tech Calendar
New items are highlighted in red.
Wednesday, November 21

The House will not meet.

The Senate will not meet.

Thursday, November 22

Thanksgiving 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.

Friday, November 23

The House will not meet.

The Senate will meet in pro forma session only.

Monday, November 26

1:00 - 4:00 PM. Day one of a two day meeting to the Department of Transportation's (DOT) Intelligent Transportation Systems Program Advisory Committee (ITSPAC) See, notice in the Federal Register, November 13, 2007, Vol. 72, No. 218, at Pages 63956-63957. Location: DOT, Conference Room 6, Lobby Level, West Building, 1200 New Jersey Ave., SE.

Tuesday, November 27

8:00 AM - 4:00 PM. Day two of a two day meeting to the Department of Transportation's (DOT) Intelligent Transportation Systems Program Advisory Committee (ITSPAC) See, notice in the Federal Register, November 13, 2007, Vol. 72, No. 218, at Pages 63956-63957. Location: DOT, Conference Room 6, Lobby Level, West Building, 1200 New Jersey Ave., SE.

8:30 AM - 5:00 PM. The Department of Homeland Security's (DHS) U.S. Citizenship and Immigration Services will hold a meeting regarding its E-Verify program, is an online tool for participating employers to seek information about the employment eligibility of new employees. See, notice in the Federal Register, Federal Register, November 7, 2007, Vol. 72, No. 215, at Pages 62863. Location: Washington Court Hotel, 525 New Jersey Ave., NW.

8:45 - 10:00 AM. The Information Technology and Innovation Foundation (ITIF) will release a paper titled "Can Europe Match US Productivity Growth? The Role of Information Technology". It will also hold a panel discussion. The speakers will include Robert Atkinson (ITIF), Michael Maibach (European-American Business Council), Nigel Nagarajan (European Commission Delegation), and Antonio Calado Lopes (Embassy of Portugal). Breakfast will be served. Location: IBM, Suite 1200, 1301 K St., NW (West Tower).

9:30 AM. The Federal Communications Commission (FCC) may hold an event titled "Open Meeting". See, tentative agenda [PDF]. Location: FCC, Commission Meeting Room, 445 12th St., SW.

12:00 NOON - 2:00 PM. The DC Bar Association will host a panel discussion titled "Criminal, Regulatory and International Trade Approaches to the Internet Gambling Issue". The speakers will be Samuel Buffone (Ropes & Gray), Raul Herrera (Arnold & Porter), Frank Fahrenkopf (American Gaming Association), Kellie Larkin (Counsel to House Financial Services Committee), Bruce Zagaris (Berliner, Corcoran & Rowe). The price to attend ranges from free to $20. For more information, call 202-626-3488. See, notice. Location: Arnold & Porter, 555 12th St., NW.

12:00 NOON - 2:00 PM. The DC Bar Association will host a panel discussion titled "Privacy and Information Security: Emerging Issues for Businesses and Consumers". The speakers will be Robin Campbell (Crowell & Moring), Molly Crawford (FTC's Division of Privacy and Identity Protection), John Parmigiani, Robyn Diaz (MedStar Health), and Sondra Mills (DOJ's Office of Consumer Litigation). The price to attend ranges from $25 to $35. For more information, call 202-626-3463. See, notice. Location: DC Bar Conference Center, B-1 Level, 1250 H St., NW.

1:00 - 3:00 PM. The Architectural and Transportation Barriers Compliance Board's (ATBCB) Telecommunications and Electronic and Information Technology Advisory Committee will meet by teleconference. See, notice in the Federal Register, November 1, 2007, Vol. 72, No. 211, at Pages 61827-61828.

2:00 PM. Day one of a two day conference hosted by the American Enterprise Institute (AEI) titled "The History, Impact, and Future of Private Equity: Ownership, Governance, and Firm Performance". At 2:00 PM, Glenn Hubbard (Columbia Business School) will give a speech. At 2:15 PM, Josh Lerner (Harvard Business School) will give a speech titled "Private Equity, Venture Capital, and Modern Capital Markets". At 2:50 PM, there will be a panel titled "Private Equity抯 History and Impact on Corporate Governance". The speakers will be Steven Kaplan (University of Chicago), Kenneth Lehn (University of Pittsburgh), John Chapman (AEI), and Alex Brill (AEI). At 4:15 PM, there will be a panel titled "Private Equity抯 Impact: Productivity and Labor Market Effects". The speakers will be Steven Davis (University of Chicago), Douglas Cumming (York University), Donald Siegel (UC Riverside), and John Chapman (AEI). At 7:00 PM, Michael Jensen (Harvard Business School) will give the dinner speech. See, notice. Location: AEI, 1150 17th St., NW.

TIME? The National Cable & Telecommunications Association (NCTA), Entertainment Software Association (ESA), and Academy of Interactive Arts & Sciences (AIAS) will host an event titled "Cable & Games Summit". For more information, contact Gabriel Marzonie at 202-222-2430 or gmarzonie at ncta dot com. Location?.

Wednesday, November 28

8:00 AM - 1:15 PM. Day two of a two day conference hosted by the American Enterprise Institute (AEI) titled "The History, Impact, and Future of Private Equity: Ownership, Governance, and Firm Performance". At 8:10 AM, Glenn Hubbard (Columbia Business School) will give a speech. At 8:20 AM, there will be a panel titled "Private Equity抯 Impact: Corporate Control, Capital Markets, and Entrepreneurship". The speakers will be Karen Wruck (Ohio State University), Annette Poulsen (University of Georgia), Peter Klein (University of Missouri -- Columbia), and Adam Lerrick (Carnegie Mellon University). At 9:30 AM, there will be a panel titled "European and Global Developments in Private Equity". The speakers will be Mike Wright (Nottingham University Business School), David Ravenscraft (University of North Carolina at Chapel Hill), Adam Lerrick (Carnegie Mellon University), and Nick Schulz (AEI). At 11:10 AM, there will be a panel titled "Practitioner Panel: The View from the Trenches". The speakers will be Brian Simmons (Code Hennessy & Simmons), Tully Friedman (Friedman Fleischer & Lowe), Thomas Putter (Allianz Capital Partners), Rick Rickertsen (Pine Creek Partners), and John Chapman (AEI). At 12:00 PM, David Rubenstein (Carlyle Group) will give the luncheon speech. See, notice. Location: AEI, 1150 17th St., NW.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Further Notice of Proposed Rulemaking (FNPRM) regarding the roaming obligations of CRMS providers. The FNPRM asks whether the FCC should extend roaming obligations to broadband data services. The FCC adopted this item on August 7, 2007, and released the text on August 16, 2007. It is FCC 07-143 in WT Docket No. 05-265. See, notice in the Federal Register, August 30, 2007, Vol. 72, No. 168, at Pages 50085-50095. See also, story titled "FCC Adopts CMRS Roaming Order and NPRM" in TLJ Daily E-Mail Alert No. 1,623, August 15, 2007.

Thursday, November 29

9:00 AM - 5:30 PM. The Department of Justice's (DOJ) Antitrust Division will host a symposium titled "Voice, Video and Broadband: The Changing Competitive Landscape and Its Impact on Consumers". See, DOJ notice and notice in the Federal Register, October 17, 2007, Vol. 72, No. 200, at Pages 58885-58887. The event is free and open to the public, but the DOJ requests pre-registration by November 16. For more information, contact Ashley Becker at 202-514-5835 or Carl Willner at 202-514-5813. Location: Horizon Room, Ronald Reagan Building, 1300 Pennsylvania Ave., NW.

12:00 NOON - 2:00 PM. The DC Bar Association will host a panel discussion titled "Licensing Trade Secrets -- The Forgotten Form of IP". The speakers will be Ronald Bleeker, Michael Holtman, and Michael O'Shaughnessy (all of Finnegan Henderson). The price to attend ranges from $10 to $20. For more information, call 202-626-3463. See, notice. Location: DC Bar Conference Center, B-1 Level, 1250 H St., NW.

12:15 PM. The Federal Communications Bar Association's (FCBA) Wireless Practice Committee will host a lunch titled "The Economics of Wireless Net Neutrality and Open Access". See, registration form [PDF]. Location: Sidley Austin, 1501 K St., NW.

6:00 - 8:15 PM. The DC Bar Association will host a continuing legal education (CLE) program titled "Introduction to Export Controls". The speakers will include Thomas Scott (Weadon & Associates) and Carol Kalinoski. 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.

Friday, November 30

8:30 AM - 1:30 PM. The President's Committee on the National Medal of Science will hold a closed meeting selection of the 2007 National Medal of Science recipients. See, notice in the Federal Register, October 15, 2007, Vol. 72, No. 198, at Page 58338. Location: Room 1235, National Science Foundation, 4201 Wilson Blvd., Arlington, VA.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) regarding its program access and retransmission consent rules and whether it may be appropriate to preclude the practice of programmers to tie desired programming with undesired programming. The FCC adopted this NPRM on September 11, 2007, and released the text [144 pages in PDF] on October 1, 2007. It is FCC 07-169, in MB Docket No. 07-198. See, notice in the Federal Register, October 31, 2007, Vol. 72, No. 210, at Pages 61590-61603. See also, story titled "FCC Adopts R&O and NPRM Regarding Program Access Rules" in TLJ Daily E-Mail Alert No. 1,640, September 17, 2007.

Deadline to submit comments to the Copyright Royalty Judges regarding proposed regulations that set the rates and terms for the use of sound recordings by preexisting subscription services for the period January 1, 2008, through December 31, 2012. See, notice in the Federal Register, October 31, 2007, Vol. 72, No. 210, at Pages 61585-61588.

Deadline to submit comments to the National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) regarding its SP 800-82 [157 pages in PDF] titled "2nd Draft Special Publication 800-82, Guide to Industrial Control Systems (ICS) Security".

Deadline to submit comments to the National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) regarding its Draft NIST IR 7328 [51 pages in PDF], titled "Security Assessment Provider Requirements and Customer Responsibilities: Building a Security Assessment Credentialing Program for Federal Information Systems".

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