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April 25, 2008, Alert No. 1,754.
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DC Circuit Grants Petition for Review of FCC BPL Order

4/25. The U.S. Court of Appeals (DCCir) issued its opinion [38 pages in PDF] in American Radio Relay League v. FCC, granting in part a petition for review of the Federal Communications Commission's (FCC) broadband over powerline (BPL) order.

The opinion will affect more than BPL. It will affect the FCC's rule making process. The Court of Appeals held that the FCC cannot conduct and rely upon studies in writing rules, but refuse to disclose the full text of those studies.

The Court of Appeals granted a petition for review of the FCC's BPL order on the grounds that the FCC violated the notice and comment requirements of the Administrative Procedure Act (APA) by conducting tests, writing studies, and relying upon those studies in writing its final order, without making the full text of those studies available to the public for review and comment, where the failure to disclose prejudiced the petitioning party.

In order to promote broadband deployment and competition, the FCC adopted rules in 2004 allowing and governing "Access Broadband over Power Line" systems. FCC licensed amateur radio operators opposed this action, on the grounds that BPL systems would create interference with their operations.

The FCC's order explained that "The interference concern regarding BPL operation arises from the fact that electric power lines are not shielded and therefore portions of any RF energy they may carry can be radiated. While the power distribution management devices, such as transformers, and sometimes underground placement of lines that are characteristic of many electric utility systems tend to substantially diminish the effectiveness of these systems as radiators of RF energy, the potential for significant radiation of RF energy from utility systems that carry RF signals nonetheless remains. This ``signal leakage,创 ... can become harmful interference if not carefully managed. That is, radio systems using the same frequency bands as those on which local Access BPL signals are transmitted could possibly receive harmful interference from such signal leakage if adequate safeguards are not in place."

The FCC therefore adopted rules that require Access BPL manufacturers and operators to comply with certification requirements and emission limits. These rules also establish a nationwide database of Access BPL operations in order to facilitate identification of a source of interference and its resolution.

The Court of Appeals wrote that the FCC order "acknowledged that ``some cases of harmful interference may be possible from Access BPL emissions at levels up to the Part 15 limits创 but it was satisfied that ``the benefits of Access BPL service warrant acceptance of a small and manageable degree of interference risk.创 ... The Commission concluded that the risk of such harmful interference was ``low.创"

In reaching its low likelihood conclusion, the FCC Commission stated that the record, investigations and field tests indicate that Access BPL network systems can generally be configured and managed to minimize and/or eliminate harmful interference potential to licensed radio services".

However, when the amateur radio operators sought disclosure of these tests, the FCC refused, or only provided redacted copies.

The Court of Appeals wrote that "At issue are five scientific studies consisting of empirical data gathered from field tests performed by the Office of Engineering and Technology. Two studies measured specific Access BPL companies' emissions, and three others measured location-specific emissions in pilot Access BPL areas in New York, North Carolina, and Pennsylvania. In placing the studies in the rulemaking record, the Commission has redacted parts of individual pages, otherwise relying on those pages."

Then, the FCC denied petitions for reconsideration.

The FCC promulgated its original BPL rules in its Report and Order [86 pages in PDF] adopted on October 14, 2004, and released on October 28, 2004. That R&O is FCC 04-245 in ET Docket No. 04-37 and ET Docket No. 03-104. See also, story titled "FCC Adopts BPL Report and Order" in TLJ Daily E-Mail Alert No. 997, October 15, 2004, and story titled "FCC Adopts Broadband Over Powerline NPRM" in TLJ Daily E-Mail Alert No. 836, February 13, 2004. The FCC released the text [38 pages in PDF] of the NPRM on February 23, 2004.

The FCC issued a Memorandum Opinion and Order (MOO) on August 3, 2006, that responded to petitions for reconsideration of the rules applicable to BPL systems. That MOO is FCC 06-113 in ET Docket Nos. 04-37 and 03-104. See, story titled "FCC Adopts MOO Regarding BPL Systems" in TLJ Daily E-Mail Alert No. 1,424, August 3, 2006.

The Amateur Radio Relay League (ARRL) petitioned for review, on several grounds. The Court of Appeals granted the petition on one procedural argument.

The Court of Appeals held that the FCC "failed to satisfy the notice and comment requirements of the Administrative Procedure Act (``APA创) by redacting studies on which it relied in promulgating the rule and failed to provide a reasoned explanation for its choice of the extrapolation factor for measuring Access BPL emissions."

The Court of Appeals wrote that the "APA requires an agency to publish ``notice创 of 揺ither the terms or substance of the proposed rule or a description of the subjects and issues involved,创 in order to ``give interested persons an opportunity to participate in the rule making through submission of written data, views, or arguments,创 and then, ``[a]fter consideration of the relevant matter presented, the agency shall incorporate in the rules adopted a concise general statement of their basis and purpose.创"

The Court of Appeals added that notice is sufficient if it affords interested parties a reasonable opportunity to participate in the rulemaking process, and if the parties have not been deprived of the opportunity to present relevant information by lack of notice that the issue was there.

The Court of Appeals held that "It would appear to be a fairly obvious proposition that studies upon which an agency relies in promulgating a rule must be made available during the rulemaking in order to afford interested persons meaningful notice and an opportunity for comment."

The Court of Appeals cited Portland Cement Ass抧 v. Ruckelshaus, 486 F.2d 375 (DC Cir, 1973), as authority for this proposition.

The Court wrote that where the FCC's determination is based upon a complex mix of controversial and uncommented upon data and calculations, there is no APA precedent allowing an agency to cherry-pick a study on which it has chosen to rely in part.

The Court of Appeals also wrote that the Court can only set aside such an order if the petitioner suffered prejudice from the agency's failure to provide an opportunity for public comment. It found that the ARRL made such a showing.

The Court granted the petition in part, and remanded to the FCC, with instructions that the FCC "shall" make available for notice and comment the unredacted technical studies and data that it has employed in reaching decisions, and "shall" make them part of the rulemaking record. The opinion does not use the word "vacate".

All three members of the three judge panel wrote opinions. Judge Brett Kavanaugh concurred as to violation of the APA by reliance upon redacted studies, but dissented as to the instruction to the FCC to provide a reasoned explanation for its choice of the extrapolation factor for measuring Access BPL emissions.

He also wrote that Portland Cement "stands on a shaky legal foundation (even though it may make sense as a policy matter in some cases)" and "cannot be squared with the text of 553 of the APA". (Parentheses in original.)

In contrast, Judge Tatel wrote that "Nor is there any doubt that, as our case law makes clear, the APA means exactly what it says: an agency must make the ``whole record创 available, especially where, as here, the undisclosed portions might very well undercut the agency抯 ultimate decision".

This case is American Radio Relay League v. FCC and USA, U.S. Court of Appeals for the District of Columbia Circuit, App. Ct. No. 06-1343, a petition for review of final orders of the FCC. Judge Rogers wrote the opinion of the Court of Appeals, in which Judges Tatel and Kavanaugh joined.

New Jersey Supreme Court Holds Individuals Have Expectation of Privacy in ISP Records

4/21. The Supreme Court of New Jersey issued its opinion [32 pages in PDF] in State of New Jersey v. Shirley Reid, holding that individuals have a reasonable expectation of privacy in subscriber information that they provide to ISPs, and therefore, law enforcement agencies seeking this information must obtain a grand jury subpoena.

It should be noted that this is a case applying the New Jersey constitution to searches and seizures by New Jersey law enforcement agencies. This opinion interprets the New Jersey constitution differently than federal courts have interpreted the US Constitution. Moreover, the Department of Justice (DOJ) and its Federal Bureau of Investigation (FBI), hold a decidedly different view of individual's privacy in subscriber information and other data that resides on third parties' servers.

This is a state criminal case. A grand jury of a trial court of the state of New Jersey (NJ) returned an indictment that charged Shirley Reid with violation of NJ's computer theft statute. The indictment alleged that she used her home computer, and internet access provided by Comcast, to visit the web site of a business that supplied materials to her employer, and there changed the password and mailing address of her employer.

The supplier's web server captured Reid's internet protocol (IP) number. The supplier then informed Reid抯 employer of the changes. The employer reported this to a local police department, which issued a no notice 3rd party municipal subpoena to Comcast for subscriber information associated with the IP number. Comcast revealed to law enforcement that the IP address was assigned to Reid.

Reid filed a motion to suppress evidence obtained as a result of the municipal subpoena, which motion was granted. The Appellate Division of the Superior Court affirmed. In the just released opinion, the NJ Supreme Court affirmed.

The NJ Supreme Court held that "citizens have a reasonable expectation of privacy, protected by Article I, Paragraph 7, of the New Jersey Constitution, in the subscriber information they provide to Internet service providers -- just as New Jersey citizens have a privacy interest in their bank records stored by banks and telephone billing records kept by phone companies. Law enforcement officials can satisfy that constitutional protection and obtain subscriber information by serving a grand jury subpoena on an ISP without notice to the subscriber."

The NJ Supreme Court wrote that "when users surf the Web from the privacy of their homes, they have reason to expect that their actions are confidential. Many are unaware that a numerical IP address can be captured by the websites they visit. More sophisticated users understand that that unique string of numbers, standing alone, reveals little if anything to the outside world. Only an Internet service provider can translate an IP address into a user抯 name."

"In the world of the Internet, the nature of the technology requires individuals to obtain an IP address to access the Web. Users make disclosures to ISPs for the limited goal of using that technology and not to promote the release of personal information to others."

However, the NJ Supreme Court declined to require notice of the grand jury subpoena, or to allow an opportunity to invoke judicial processes to quash or modify the subpoena.

It wrote that "we decline to adopt a requirement that notice be provided to account holders whose information is subpoenaed. ... For obvious reasons, notice could impede and possibly defeat the grand jury抯 investigation. Particularly in the case of computers, unscrupulous individuals aware of a subpoena could delete or damage files on their home computer and thereby effectively shield them from a legitimate investigation. Banks maintain copies of the records they send their customers. But ISP providers do not have a back-up file of the information maintained on a home computer. As a result, notice could be even more damaging to an investigation in this arena."

This is a case decided under NJ state law. While NJ's constitutional protection against unreasonable searches and seizures is drafted in language nearly identical to the U.S. Constitution's protection against unreasonable searches and seizures, the NJ Supreme Court noted that "Federal case law interpreting the Fourth Amendment has found no expectation of privacy in Internet subscriber information."

Federal courts have reached a different conclusion. For example, the U.S. Court of Appeals (6thCir) held in a case involving access to electronic bulletin board subscriber information that "Individuals generally lose a reasonable expectation of privacy in their information once they reveal it to third parties." See, opinion in Guest v. Leis, 255 F.3d 325 (2001).

Guest v. Leis and other federal cases rely upon the US Supreme Court's 1971 opinion in US v. Miller, 425 U.S. 435, which was decided before the invention of the web, and the development of expectations of privacy in internet based transactions. US v. Miller involved federal efforts to prosecute a Georgia bootleg moonshiner. The Supreme Court held that the moonshiner had no expectation of privacy in records held by his bank, including checks and deposit slips.

The facts of this case provider further policy justifications for requiring outside oversight of subpoenas for information held by third parties. The Lower Township Police Department issued the subpoena itself. There was no judicial oversight or approval. Lower Township, is a small township in Cape May County in southern New Jersey. Its web site states that its population is 23,000. First, the local police issued a subpoena for evidence of a crime that it had no jurisdiction to prosecute. Second, the subpoena contained a fictitious case caption. There was no pending action.

The ACLU of New Jersey, Electronic Frontier Foundation (EFF), Electronic Privacy Information Center (EPIC), Freedom To Read Foundation, Privacy Rights Clearinghouse and New Jersey Library Association submitted an amicus curiae brief [48 pages in PDF] in which they argued for suppression of evidence. These amici argued that people have an expectation of privacy in subscriber information held by ISPs.

However, the also discussed internet transactions and data more generally. The amici wrote that "personal information that people used to keep in paper files or on computer hard drives is increasingly stored online, beyond the physical confines of home or office The method required to engage in this medium inexorably involves third parties: Internet Service Providers (ISPs). Online service providers offer their customers the ability to store photos, e-mail, calendars, and documents on the Internet. Yet this fact of modern life must not be permitted to erode privacy and speech rights."

The amici continued that "The digital revolution has given modern law enforcement unprecedented power to conduct surveillance, surreptitiously obtain personal information, exercise unlimited discretion, monitor disfavored individuals, and engage in discriminatory profiling."

They argued that "Technological change is, or should be, accompanied by the expectation that the state will exercise a duty of care. This duty of care includes holding police practices to restraints that attached prior to the digital revolution, restraints that embody the principles of due process and limited government."

This case is State of New Jersey v. Shirley Reid, Supreme Court of New Jersey.

Rep. Eshoo Introduces M2Z Spectrum Bill

4/17. Rep. Anna Eshoo (D-CA), Rep. Chris Cannon (R-UT), and Rep. Ed Markey (D-MA) introduced HR 5846 [LOC | WW], the "Wireless Internet Nationwide for Families Act of 2008" or "WIN Act".

This bill would require the Federal Communications Commission (FCC) to auction 20 MHz of spectrum subject to rules similar to those proposed by M2Z Networks, but rejected by the FCC.

Rep. Anna EshooRep. Eshoo (at right) stated in a release that "The results of the 700 MHz auction disappointed many of us who hoped that a new entrant would emerge. 70% of the spectrum auctioned went to only two carriers. While the auction required under this legislation is open to anyone, it is my hope that the bold conditions of requiring free, family friendly service will encourage the entry of a new kind of national broadband service provider."

Rep. Eshoo's release offered this summary. The bill would require the FCC to "auction certain spectrum that is currently lying fallow. The winner of the auction would be required to build and complete a network within 10 years that must provide coverage to at least 95% of our country. The licensee would also be required to provide service for free to consumers and public safety users. The WIN Act also requires the licensee to deny access to obscene and indecent material on the free service tier."

Rep. Cannon stated in a release that the US "has fallen behind many other advanced nations, including other geographically large and diverse countries like Canada, in terms of broadband deployment and affordability. This means that our workers, entrepreneurs and students are not getting the same access to competitive resources as their counterparts in other nations.  We must ensure that this alarming trend is reversed and that all Americans, including those living in our states in the west, have reliable and affordable high bandwidth broadband Internet connections."

The bill was referred to the House Commerce Committee. Representatives Eshoo and Markey are members.

Bill Summary. This bill would add language to 47 U.S.C. 309(j) regarding spectrum auctions by the FCC. It would require the FCC to auction the 2155-2180 MHz spectrum band, and another unspecified spectrum band of 20 megahertz somewhere below 3 gigahertz.

The bill would require the FCC to conduct an auction of the 2155-2180 MHz band in a single nationwide license, in an auction commenced within 180 of enactment of this bill.

The bill would require the FCC to promulgate a set of service and auction rules for this first auction, and specify the content of these rules.

First, these rules must require that the licensee "offer, at a minimum, always-on wireless broadband services within 2 years from the date of receipt of the license, and complete the construction of such wireless network with a signal covering at least 95 percent of the population of the United States and its territories within 10 years from the initial operation of the network".

Second, the licensee must "offer a data service that is faster than 200 kilobits per second one way (subject to subparagraph (G)) for free to consumers and authorized public safety users without subscription, airtime, usage, or other charges". (Parentheses in original.) Then, this subparagraph G provides that after five years the FCC evaluate whether the minimum speed of free services should be increased.

Third, the licensee must "consistent with section 230 of this Act, offer such free data service with a technology protection measure or measures that protect underage users from accessing obscene or indecent material through such service".

Fourth, the licensee must "provide such free data services on a wireless network that permits open access to affiliated and unaffiliated consumer devices by providing, publicly and royalty-free, published technical standards for developing and deploying subscriber equipment that can operate on the network subject to this paragraph".

Finally, the licensee must "provide such free data services using advanced and spectrally efficient wireless technologies that provide services to the largest feasible number of users and encourages broadband competition making broadband services more available and affordable."

As for the second auction, the bill states that these above quoted rules would not apply, unless the FCC "finds it is in the public interest to do so pursuant to a rulemaking".

This bill would also require the FCC and National Telecommunications and Information Administration (NTIA) to conduct a joint biannual reviews, beginning in 2009, of "competitive market conditions with respect to availability and affordability of broadband as well as the state of utilization of spectrum under the Commission's and the Administration's respective jurisdictions".

More on M2Z. This bill would mandate by legislation an auction that bears many of the attributes of an auction that M2Z Networks has unsuccessfully sought from the FCC. For a more detailed description of M2Z's applications, see stories titled "FCC Accepts for Filing M2Z's Application for Free Spectrum" in TLJ Daily E-Mail Alert No. 1,532, February 5, 2007, and "Panel Debates M2Z Proposal" in TLJ Daily E-Mail Alert No. 1,541, February 21, 2007.

The FCC has rejected M2Z's application. See, story titled "FCC Dismisses M2Z's and NetfreeUS's Requests for 2155-2175 MHz Band Spectrum Licenses" in TLJ Daily E-Mail Alert No. 1,633, September 4, 2007.

Judicial review of the FCC's rejections of M2Z's applications is pending in the U.S. Court of Appeals (DCCir). See, Notice of Appeal [PDF].

Rep. DeFazio Introduces Bill to Ban Use of Cell Phones on Scheduled Flights

4/15. Rep. Peter DeFazio (D-OR) and others introduced HR 5788 [LOC | WW], the "Halting Airplane Noise to Give Us Peace Act of 2008" or "HANG UP Act". It would ban the use of cell phones on scheduled airline flights.

It would provide that "An individual may not engage in voice communications using a mobile communications device in an aircraft during a flight in scheduled passenger interstate air transportation or scheduled passenger intrastate air transportation." The bill would also cover voice services that utilize internet protocol.

Rep. DeFazio stated in a release that "The public doesn't want to be subjected to people talking on their cell phones on an already over-packed airplane". He added that the bill "would ensure that financially strapped airlines don't drive us towards this noisome disruption in search of further revenue."

This bill would add a new section to Title 49, which pertains to transportation, not Title 47, which pertains to communications. Hence, this bill was referred to the House Transportation Committee (HTC). Rep. DeFazio and all of its original cosponsors are members of the HTC. None are members of the House Commerce Committee (HCC).

Reps. Rush and Upton Introduce Bill to Allow E-Rate Subsidies to be Used for Emergency Notification Services

4/15. Rep. Bobby Rush (D-IL) and Rep. Fred Upton (R-MI) introduced HR 5806 [LOC | WW], the "School Emergency Notification Deployment Act".

Rep. Fred UptonRep. Upton (at right) issued a release that states that "In the wake of last year's Virginia Tech tragedy many colleges and universities have upgraded emergency notification systems, but it is also essential that K-12 schools have the resources to implement similar life-saving alert systems."

This release adds that Rep. Upton "seeks to build upon an existing federal program to empower schools to create their own emergency notification service for students, personnel and parents through mobile text messages, e-mail and other telecommunications and information services."

This bill would amend 47 U.S.C. 254, which pertains to the Federal Communications Commission's (FCC) universal service tax and subsidy programs.

Subsection 254(h) is the statutory authority relied upon by the FCC for its schools and libraries program, which is also known as the e-rate program.

This bill would amend Subsection 254(h) by expanding the scope of the e-rate program to permit subsidies to "public and nonprofit elementary and secondary schools to be used for enhanced emergency notification services".

The bill would also amend the definitional subsection to provide that "enhanced emergency notification service" means "a communications service or system that ... meets or exceeds prevailing industry practices, as periodically determined by the" FCC, and "can be utilized by school administrators and other public officials to deliver emergency messages to members of the school community (including students and their parents, faculty, and staff), and their designated emergency contacts, via messages carried over telecommunications and information services, including those transmitted by providers of commercial mobile service". (Parentheses in original.)

This bill was referred to the House Commerce Committee (HCC). Both Rep. Rush and Rep. Upton are both senior members of the HCC and its Subcommittee on Telecommunications and the Internet.

Washington Tech Calendar
New items are highlighted in red.
Monday, April 28

The House will not meet. See, Rep. Hoyer's schedule for week of April 28.

The Senate will meet at 2:00 PM. It will resume consideration of the motion to proceed to HR 2881 [LOC | WW], the "FAA Reauthorization Act of 2007".

12:00 NOON - 2:00 PM. The Free State Foundation (FSF) will host a program titled "Reforming Universal Service: What Should Be Done And How To Do It". The speakers will be James Assey (National Cable & Telecommunications Association), Shirley Bloomfield (Qwest), Joel Lubin (AT&T), Randolph May (FSF), John Rose (OPASTCO), Mark Rubin (Alltel), Colin Crowell (House Commerce Committee, Democratic staff), and Neil Fried (House Commerce Committee, Republican staff). RSVP to Susan Reichbart at sreichbart at freestatefoundation dot org The event is free. Lunch will be provided. Location: Room 2322, Rayburn Building.

12:00 NOON - 1:30 PM. The DC Bar Association will host panel discussion titled "Merger Control in the Americas". The speakers will be John Taladay (Howrey), Eduardo Perez Motta (Chairman, Federal Commission on Competition, Mexico), Elizabeth Farina (President, Brazilian Competition Council), and Maria Tineo (Counsel for International Antitrust, Federal Trade Commission). The price to attend ranges from $15 to $30. For more information, contact 202-626-3488. See, notice. Location: DC Bar Conference Center, B-1 Level, 1250 H St., NW.

12:30 PM. Dan Glickman (head of the Motion Picture Association of America) will give a speech. Location: Ballroom, National Press Club, 13th Floor, 529 14th St. NW.

1:00 - 2:00 PM. The National Press Club (NPC) will host a class titled "Reporting from Facebook". The event is free. Register by Register by contacting Beth Shankle at bshankle at press dot org or 202-662-7509.  Location: Computer Classroom, NPC, 13th Floor, 529 14th St. NW

EXTENDED FROM MARCH 14. Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Report on Broadcast Localism and Notice of Proposed Rulemaking. The FCC adopted this item on December 18, 2007, and released the text on January 24, 2008. It is FCC 07-218 in MB Docket No. 04-233. See, notice in the Federal Register, February 13, 2008, Vol. 73, No. 30, at Pages 8255-8259. See also, FCC's Public Notice [PDF] (DA 08-393). See also, Public Notice [PDF] (DA 08-515) extending deadlines.

Deadline to submit comments to the National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) regarding SP 800-64 Rev. 2 [60 pages in PDF], titled "DRAFT Security Considerations in the System Development Life Cycle".

Tuesday, April 29

The House will meet at 12:30 PM for morning hour debate, and at 2:00 PM for legislative business. Votes will be postponed until 6:30 PM. The House will consider numerous non-technology related items under suspension of the rules. See, Rep. Hoyer's schedule for week of April 28.

9:30 AM. The Senate Homeland Security and Government Affairs Committee will hold a hearing titled "The Impact of Implementation: A Review of the REAL ID Act and the Western Hemisphere Travel Initiative". See, notice. Location: Room 342, Dirksen Building.

10:00 AM. The Senate Finance Committee (SFC) will hold a hearing titled "Oversight of Trade Functions: Customs and Other Trade Agencies". The witnesses will be Warren Maruyama (General Counsel, Office of the U.S. Trade Representative), Ralph Basham (Commissioner of Customs, Department of Homeland Security), Julie Myers (Assistant Secretary, U.S. Immigration and Customs Enforcement, DHS), and Daniel Pearson (Chairman of the U.S. International Trade Commission). See, notice. Location: Room 215, Dirksen Building.

12:00 NOON - 2:00 PM. The Progress & Freedom Foundation (PFF) will host a lunch titled "700 MHz ``D Block创: What's Next?" The speakers will be Declan Ganley (Ch/CEO of Rivada Networks), Kenneth Ferree (PFF), Art Contreras (Mobile Future), Michael Calabrese (New America Foundation), Paul Glenchur (Stanford Washington Research Group). This event is free and open to the public. See, PFF notice and registration page. Location: Rotunda Room, Ronald Reagan Building and International Trade Center, 1300 Pennsylvania Ave., NW.

Deadline to submit comments to the U.S. Patent and Trademark Office (USPTO) regarding its proposal to amend the Trademark Rules of Practice to provide that the procedures for filing trademark correspondence by Express Mail or under a certificate of mailing or transmission do not apply to certain specified documents for which an electronic form is available in the Trademark Electronic Application System (TEAS). See, notice in the Federal Register, February 29, 2008, Vol. 73, No. 41, at Pages 11079-11081.

Wednesday, April 30

The House and Senate will meet jointly to hear Bertie Ahern, Prime Minister of Ireland. See, Rep. Hoyer's schedule for week of April 28.

9:00 AM. The Senate Judiciary Committee's (SJC) Subcommittee on the Constitution will hold a hearing titled "Secret Law and the Threat to Democratic and Accountable Government". It will address legal analysis withheld from the public, including memoranda of the Department of Justice's (DOJ) Office of Legal Counsel (OLC). Sen. Russ Feingold (D-WI) will preside. Location: Room 226, Dirksen Building.

9:00 AM - 4:00 PM. Day one of a two day meeting of the National Archives and Records Administration's (NARA) Advisory Committee on the Electronic Records Archives (ACERA). See, notice in the Federal Register, April 11, 2008, Vol. 73, No. 71, at Pages 19903-19904. Location: 700 Pennsylvania Ave., NW.

10:00 AM. The House Science Committee (HSC) will hold a hearing titled "E-Waste: Can the Nation Handle Modern Refuse in the Digital Age?". The witnesses will be Gerardo Castro (Goodwill Industries), Renee St. Denis (HP), Eric Harris (Institute of Scrap Recycling Industries), Ted Smith (Electronics Take Back Coalition), Eric Williams (Arizona State University), and Michael Williams (Sony Electronics). See, notice. Location: Room 2318, Rayburn Building.

10:15 AM. The House Judiciary Committee will meet to mark up several bills. The first item on the agenda is HR  4279, the "Prioritizing Resources and Organization for Intellectual Property Act of 2007" or "PRO IP Act". Location: Room 2141, Rayburn Building.

12:00 NOON - 1:00 PM. The Heritage Foundation will host a program titled "Civil Rights and the War on Terror: Promoting Accountability and National Security". The speakers will be Michael Chertoff (Secretary of Homeland Security), Dorit Beinisch (President of the Supreme Court of Israel), and Edwin Feulner (Heritage). See, notice. Location: Heritage, 214 Massachusetts Ave., NE.

12:30 - 2:00 PM. The DC Bar Association will host a presentation titled "U.S. Copyright Office's New Electronic Filing Procedure for the Registration of Copyrights". The speaker will be Jeffrey Cole of the Copyright Office. The price to attend ranges from $20 to $25. For more information, contact 202-626-3488. See, notice. Location: DC Bar Conference Center, B-1 Level, 1250 H St., NW.

1:30 - 3:30 PM. The Department of Commerce's (DOC) National Telecommunications and Information Administration's (NTIA) Spectrum Management Advisory Committee will meet. The agenda includes receiving recommendations and reports from working groups of its Technical Sharing Efficiencies Subcommittee and Operational Sharing Efficiencies Subcommittee. See, NTIA notice and notice in the Federal Register, April 11, 2008, Vol. 73, No. 71, at Pages 19828-19829. Location: Room 1412, DOC, 1401 Constitution Ave., NW.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Further Notice of Proposed Rule Making regarding public safety communications in the 800 MHz band. The FCC adopted and released this item on March 5, 2008. This item is FCC 08-73 in WT Docket No. 02-55 and ET Docket Nos. 00-258 and 95-18. See, notice in the Federal Register, March 31, 2008, Vol. 73, No. 62, at Pages 16822-16826.

Deadline to submit comments to the National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) regarding SP 800-39 [67 pages in PDF], titled "DRAFT Managing Risk from Information Systems: An Organizational Perspective".

Thursday, May 1

The House will meet at 10:00 AM for legislative business. The agenda includes no technology related items. See, Rep. Hoyer's schedule for week of April 28.

9:00 AM - 4:00 PM. Day two of a two day meeting of the National Archives and Records Administration's (NARA) Advisory Committee on the Electronic Records Archives (ACERA). See, notice in the Federal Register, April 11, 2008, Vol. 73, No. 71, at Pages 19903-19904. Location: 700 Pennsylvania Ave., NW.

9:00 - 10:30 AM. Robert Atkinson, head of the Information Technology and Innovation Foundation (ITIF), will present a report titled "Explaining International Broadband Leadership". The other speakers will be Tom Bleha and Magnus H鋜viden (Embassy of Sweden). See, notice. Location: National Press Club, 529 14th St., NW.

9:30 AM. The House Commerce Committee's (HCC) Subcommittee on Telecommunications and the Internet will hold a hearing on a yet to be introduced bill that the HCC titles "Draft Legislation Enhancing Access to Broadband Technology and Services for Persons with Disabilities". The hearing will be webcast by the HCC. Location: Room 2123, Rayburn Building.

10:00 AM. The House Judiciary Committee's (HJC) Subcommittee on Crime, Terrorism, and Homeland Security will hold a hearing on HR 4081 [LOC | WW], the "Prevent All Cigarette Trafficking Act of 2007", and HR 5689 [LOC | WW], the "Smuggled Tobacco Prevention Act of 2008". One of the purposes of these bills is to further regulate cigarette sales to increase federal, state and local tax revenues, particularly with respect to internet sales. See, notice. This hearing will be webcast by the HJC. Location: Room 2141, Rayburn Building.

10:00 AM. The Senate Judiciary Committee (SJC) will hold a hearing on the nominations of Steven Agee (to be a Judge of the U.S. Court of Appeals for the 4th Circuit), William Lawrence (U.S. District Court, SDInd), and Murray Snow (USDC, DAriz). Location: Room 226, Dirksen Building.

12:00 NOON - 1:30 PM. The National Economists Club (NEC) will host a lunch. The speaker will be Gary Hufbauer. The topic will be "NAFTA at 14: Why the Uproar?". Location: Chinatown Garden Restaurant, 618 H St., NW.

6:00 PM. Deadline for the winning bidders in Auction 73 to avoid default for failure to submit final payment, including late fees, for their winning bids. See, notice.

Friday, May 2

Rep. Hoyer's schedule for week of April 28 states that "no votes are expected in the House".

9:00 AM - 3:30 PM. The Department of Commerce's (DOC) Economics and Statistics Administration's (ESA) Bureau of Economic Analysis's (BEA) BEA Advisory Committee will meet. The agenda includes a discussion of how offshoring might bias the Gross Domestic Product (GDP) statistics. See, notice in the Federal Register, March 24, 2008, Vol. 73, No. 57, at Page 15477. Location: BEA, 1441 L St., NW.

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in James Kay v. FCC, App. Ct. No. 03-1072. Judges Tatel, Garland and Kavanaugh will preside. Location: 333 Constitution Ave., NW.

11:00 AM - 6:00 PM. The National Science Foundation (NSF) Advisory Committee for Computer and Information Science and Engineering will meet. The agenda includes discussion of "strategic priorities in computing". See, notice in the Federal Register, April 16, 2008, Vol. 73, No. 74, at Page 20721. Location: NSF, 4201 Wilson Blvd., Room 1235, Arlington, VA.

12:30 PM. The Heritage Foundation will host a book talk by Dianne Furchtgott-Roth, author of the book [Amazon] titled "Overcoming Barriers to Entrepreneurship in the United States". See, notice. Location: Heritage, 214 Massachusetts Ave., NE.

Deadline to submit to the Copyright Royalty Judges petitions to participate in the proceeding to determine the Phase I distribution of 2000, 2001, 2002, and 2003 royalties collected under the cable statutory license. See, notice in the Federal Register, April 2, 2008, Vol. 73, No. 64, at Pages 18004-18005.

Monday, May 5

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in _Maxwell Technologies v. Nesscap, App. Ct. No. 2007-1324, an appeal from the U.S. District Court (SDCal) in a patent infringement case involving ultracapacitor technology. Location: Courtroom 402, 717 Madison Place, NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Stanford v. Motorola, App. Ct. No. 2007-1564. Location: Courtroom 402, 717 Madison Place, NW.

12:30 - 2:00 PM. The Federal Communications Bar Association's (FCBA) International Telecommunications Practice Committee will host a brown bag lunch. The topic will be "Understanding the Internet: An International Perspective". The speakers will include Irene Wu (FCC and Georgetown University). For more information, contact John Giusti at John dot Giusti at fcc dot gov. Location: Verizon, 5th floor, 1300 I St., NW.

EXTENDED TO MAY 19. Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to it Notice of Proposed Rulemaking (NPRM) regarding the Recommended Decision of the Federal-State Joint Board on Universal Service, released on November 20, 2007, regarding comprehensive reform of high cost universal service taxes and subsidies. The FCC adopted this NPRM on January 15, 2008, and released the text on January 29, 2008. It is FCC 08-02 in WC Docket No. 05-337 and CC Docket No. 96-45. See, original notice in the Federal Register, March 4, 2008, Vol. 73, No. 43, at Pages 11587-11591. See also, notice [PDF] of extension (DA 08-674).

EXTENDED TO MAY 19. Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to it Notice of Proposed Rulemaking (NPRM) regarding the use of reverse auctions to determine the amount of high cost universal service subsidies provided to eligible telecommunications carriers serving rural, insular, and high cost areas. The FCC adopted this NPRM on January 9, 2008, and released the text on January 29, 2008. It is FCC 08-05 in WC Docket No. 05-337 and CC Docket No. 96-45. See, original notice in the Federal Register, March 4, 2008, Vol. 73, No. 43, at Pages 11591-11602. See also, notice [PDF] of extension (DA 08-674).

EXTENDED TO MAY 19. Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to it Notice of Proposed Rulemaking (NPRM) regarding the FCC's rules governing the amount of high cost universal service subsidies provided to competitive eligible telecommunications carriers (ETCs). This NPRM also tentatively concludes that the FCC should eliminate the existing identical support rule, which is also known as the equal support rule. The FCC adopted this NPRM on January 9, 2008, and released the text on January 29, 2008. It is FCC 08-04 in WC Docket No. 05-337 and CC Docket No. 96-45. See, original notice in the Federal Register, March 4, 2008, Vol. 73, No. 43, at Pages 11580-11587. See also, notice [PDF] of extension (DA 08-674).

10th Circuit Considers Product Bundling and Discounts Under Colorado Competition Law

4/25. The U.S. Court of Appeals (10thCir) issued its opinion [29 pages in PDF] in Parish Oil Co. v. Dillon Companies, reversing the judgment of the District Court.

Introduction. This is a state competition law case involving bundled discounts. The defendant retailer offered discounts on gas when consumers also purchased groceries. This case was decided under a Colorado state statute regulating gasoline sales.

However, persons interested in technology law and policy may take note of this case because of the potential application of competition law to bundled discounts in the telecom and tech sectors, such as triple play (broadband, voice and video) and wireless (device and service) discounts.

The Court of Appeals' lengthy opinion discusses bundled discounts generally. Also, in dicta it considers the example of bundling of below cost cell phones and cell phone service.

The Court of Appeals reversed the judgment of the District Court for the complaining gas retailers, and in so doing stated that the plaintiffs' interpretation would lead to a ban on phone and service plan discounts.

Background. Dillon Companies operates grocery stores in Colorado that also sell gas. It offered discounts on gas to customers who also shopped in the grocery store.

The Colorado Unfair Practices Act (UPA), is a 1930s era statute, since amended, that prohibits below cost sales for the "purpose of injuring competitors and destroying competition", and below cost motor fuel sales regardless of intent, subject to an exception for certain types of product bundling.

That exception provided that "For the purpose of preventing evasion of the provisions of this article in all sales involving more than one item or commodity and in all sales involving the giving of any concession of any kind, whether it be coupons or otherwise, the vendors or distributors selling price shall not be below the cost of all articles, products, commodities, and concessions included in such transactions."

Gas retailers filed a complaint in U.S. District Court (DColo) alleging violation of the Colorado ban on below cost gas sales. Jurisdiction rests upon diversity of citizenship. The trial jury returned a verdict for the plaintiffs, and the District Court awarded treble damages pursuant to the statute.

Court of Appeals. The Court of Appeals reversed. In construing the exception, it considered the underlying purpose of the UPA, and discussed examples of product bundling in other industries, including cell phones.

It wrote, "Consider a cellular service provider. It sells phones for $100, above cost, but if a customer will sign a two-year service contract he may have the phone for a dollar. The plaintiffs reading would likely prohibit this common practice, especially if the entire purchase price (for the telephone and the service plan) is not paid up front and together, because the price of the phone itself would have to be considered ``separately创 from the price of the cellular service." (Parentheses in original.)

The Court of Appeals construed the exception "to mean that where the ability to make a purchase at a concession price is expressly contingent on the purchase of other goods, the concession goods are sold below cost only if the total price paid by the customer for the goods involved in such linked transactions is below the total cost of such goods."

That is, the bundling retailer (in this case groceries and gas) can under the UPA sell one product (gas) at below cost, if such sales are conditioned on the purchase of enough of the other product (groceries) above cost that the combined transaction comes in at a profit.

The Court of Appeals did not discuss the federal Sherman Act. And, the holding of this case only applies to legality of the bundling of gas and other products in the state of Colorado under Colorado law.

See also, story titled "9th Circuit Rules on Application of Antitrust Law to Bundling Discounts" in TLJ Daily E-Mail Alert No. 1,634, September 5, 2008.

Case Information. This case is Parish Oil Co., Inc., et al. v. Dillon Companies, Inc., U.S. Court of Appeals for the 10th Circuit, App. Ct. No. 07-1032, an appeal from the U.S. District Court for the District of Colorado, D.C. No. D.C. No. 1:05-CV-00081-REB-PAC.

Judge Michael McConnell wrote the opinion of the Court of Appeals, in which Judges Tacha and Hartz joined. McConnell was one of President Bush's first judicial nominees in 2001. He went to the University of Chicago law school, and later taught there for ten years.

The law firm of Hogan & Hartson represented plaintiff gas only retailers. The law firm of Arnold & Porter represented the defendant grocery and gas retailers.

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