8/5. The Federal Communications Commission (FCC) adopted and released a Memorandum Opinion and Order (MO&O) [41 pages in PDF] granting in part and denying in part Qwest's petition that the FCC forbear from from applying Title II of the Communications Act and its Computer Inquiry rules to certain broadband services.

Summary of MOO. The MO&O states that "we grant substantial forbearance relief to Qwest with regard to its existing packet-switched broadband telecommunications services and its existing optical transmission services. We also grant Qwest forbearance from its obligations under the Computer Inquiry rules in connection with these services, conditioned on its compliance with the Computer Inquiry obligations that apply to all non-incumbent local exchange carrier (LEC) facilities-based wireline carriers." (Footnote omitted.)

It continues that "In all other respects, Qwest’s request for forbearance is denied. In particular, we deny forbearance from any statutory or regulatory requirement that applies to common carriers or LECs generally regardless of whether they are incumbents or competing carriers. We also deny forbearance, except as stated above with regard to the Computer Inquiry rules, from any statutory or regulatory requirements that apply to Qwest in its capacity as an incumbent LEC or Bell Operating Company (BOC)."

This MO&O adds that "Qwest must meet its public policy obligations under Title II and the Commission’s implementing rules with respect to the services at issue." A footnote identifies "e.g., 47 U.S.C. §§ 222, 225, 229, 251(a)(2), 254, 255."

§222 is titled "Privacy of customer information" and pertains to CPNI.

§225 is titled "Telecommunications services for hearing-impaired and speech-impaired individuals".

§229 is titled "Communications Assistance for Law Enforcement Act compliance". It mandates that carriers maintain wiretap and other surveillance capabilities. FCC rules have extended CALEA mandates to certain non-carriers.

§151(a)(2) provides that "Each telecommunications carrier has the duty ... not to install network features, functions, or capabilities that do not comply with the guidelines and standards established pursuant to section 255 or 256 of this title".

§254 pertains to universal service.

§255 is titled "Access by persons with disabilities".

§256 is titled "Coordination for interconnectivity".

The FCC's MO&O concludes that "This preserves important public policies related to 911, emergency preparedness, customer privacy, and universal service in connection with the broadband services for which we grant relief."

This MO&O also states that it was adopted on July 22, 2008. The FCC did not release, or announce, this MO&O at that time.

This MO&O is FCC 08-168 in WC Docket No. 06-125.

Deemed Granting of Verizon's Petition for Forbearance. The FCC previously extended similar regulatory relief to Verizon. See, story titled "FCC Announces that Verizon Petition for Forbearance is Deemed Granted" in TLJ Daily E-Mail Alert No. 1,334, March 22, 2006.

In March 2006 there were two Republican Commissioners who supported forbearance (Martin and Tate) and two Democratic Commissioners who opposed forbearance (Copps and Adelstein). Now, there is fifth Commission (McDowell), a Republican who supported forbearance.

The relevant statute provides that petitions for forbearance are deemed granted if the FCC does not grant or deny the petition within the time limit. Hence, the Verizon petition was deemed granted because of the 2-2 split, while the Qwest petition was granted by MO&O because 3 of 5 Commissioners supported it.

Section 10(c) of the Communications Act, which is codified at 47 U.S.C. § 160(c), provides, in part, 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."

The just released MO&O states that "We also decline in the context of this forbearance petition to explain, clarify, or otherwise address the forbearance that Verizon was deemed granted by operation of law".

Furthermore, it reject the argument that the deemed granted status of the Verizon forbearance petition has "precedential value, or binds or otherwise limits our responsibility to evaluate Qwest’s forbearance petition and the other petitions that are before us on their merits."

See also, story titled "House Subcommittee Holds Hearing on FCC Forbearance Procedures" in TLJ Daily E-Mail Alert No. 1,799, July 24, 2008.

Statements by Commissioners. FCC Commissioner Robert McDowell wrote in his statement [PDF] that this MOO streamlines "regulation of the enterprise broadband market" and brings "Qwest into regulatory parity with other similarly situated price cap carriers".

FCC Chairman Kevin Martin wrote in his statement [PDF] that "Broadband access is essential to an expanding Internet-based information economy. Promoting broadband deployment is one of the highest priorities of the FCC. To accomplish this goal, the Commission seeks to establish a policy environment that facilitates and encourages broadband investment, allowing market forces to deliver the benefits of broadband to consumers. Today, we take another step in establishing a regulatory environment that encourages such investments and innovation".

FCC Commissioners Michael Copps and Jonathan Adelstein wrote in their joint dissenting statement [PDF] that the FCC "continues down its ill-considered road of granting far-reaching forbearance to petitioners seeking relief from Title II and Computer Inquiry obligations associated with certain broadband enterprise services. As was the case in last year’s AT&T Title II and Computer Inquiry Forbearance Order addressing largely the same issues raised by Qwest here, there is insufficient evidence to support forbearance in this case."

They added that the "is bent on continuing its headlong rush to eliminate large swaths of its rules under the guise of forbearance and absent the kind of industry-wide reviews that would enable us to assess the marketplace as a whole. We believe this is an egregious mistake."

July 25 MOO. On July 25, 2008, the FCC adopted and released a Memorandum Opinion and Order (MO&O) [39 pages in PDF] in which its denied four petitions for forbearance submitted by Qwest Communications.

Qwest requested that the FCC forbear from applying its loop and transport unbundling rules, promulgated pursuant to 47 U.S.C. § 251(c) and 47 U.S.C. § 271(c)(2)(B)(ii), in Denver, Colorado, Minneapolis St. Paul, Minnesota, Phoenix, Arizona, and Seattle, Washington.

See, story titled "FCC Denies Forbearance Petitions" in TLJ Daily E-Mail Alert No. 1,800, July 25, 2008.

8/5. The Federal Communications Commission (FCC) released the text [109 pages in PDF] of its Memorandum Opinion and Order and Report and Order (MO&O and R&O) approving the merger of XM and Sirius, subject to price controls, programming mandates, non-commercial and educational (NCE) channel set asides, and other rents and restrictions.

The FCC also released an accompanying Order and Consent Decree [25 pages in PDF] that fines (nominally a "voluntary contribution") XM $17,394,375 Million, and an Order and Consent Decree [24 pages in PDF] that fines Sirius $2,200,000, for operating terrestrial repeaters at variance from their specification, and authorizing non-compliant FM modulators.

The FCC approved the merger on July 25, 2008, by a vote 3-2, without a public meeting. See, story titled "FCC Approves XM Sirius Merger" in TLJ Daily E-Mail Alert No. 1,800, July 25, 2008. The FCC issued a release [PDF] describing its decision on July 28, 2008.

On March 24, 2008, the Department of Justice's (DOJ) Antitrust Division announced that it will not challenge the merger. It imposed no conditions. See, story titled "DOJ Won't Challenge XM Sirius Merger" in TLJ Daily E-Mail Alert No. 1,736, March 25, 2008.

8/4. Stephen McGuire, Chief Administrative Law Judge for the Federal Trade Commission (FTC), will leave the FTC. He will become Vice President for Compliance & Ethics at the University of Louisville Hospital in Louisville, Kentucky. McGuire is from Louisville. See, FTC release.

McGuire is the administrative law judge who presided in the FTC's administrative action against Rambus.

On June 19, 2002, the FTC filed an administrative complaint against Rambus alleging anti-competitive behavior in connection with its participation in a standard setting body for dynamic random access memory (DRAM) products. See, story titled "FTC Files Administrative Complaint Against Rambus" in TLJ Daily E-Mail Alert No. 455, June 20, 2002.

On February 17, 2004, McGuire dismissed the FTC's complaint. See, story titled "ALJ Dismisses FTC Complaint Against Rambus" in TLJ Daily E-Mail Alert No. 839, February 18, 2004.

However, on August 2, 2006, the Commission reversed his decision. The FTC opinion [120 pages in PDF] concluded that Rambus unlawfully monopolized the markets for four computer memory technologies that have been incorporated into industry standards for DRAM chips. See, story titled "FTC Holds That Rambus Unlawfully Monopolized Markets" in TLJ Daily E-Mail Alert No. 1,427, August 8, 2006.

But then, on April 22, 2008, the U.S. Court of Appeals (DCCir) issued its opinion [24 pages in PDF], setting aside the FTC's order. That case is Rambus v. FTC, U.S. Court of Appeals for the District of Columbia, App. Ct. Nos. 07-1086 and 07-1124, petitions for review of final orders of the FTC.

See, story titled "Court of Appeals Rules in Rambus v. FTC" in TLJ Daily E-Mail Alert No. 1,752, April 23, 2008.

See also, the FTC's web page that lists and hyperlinks to pleading in its proceeding titled "In the Matter of Rambus Incorporated", which is FTC Docket No. 9302.

8/6. President Bush traveled to Korea, and met with President Lee Myung-Bak. The two urged legislative approval of the US-Korea FTA.

The White House news office released a document on August 5, 2008, titled "Statement of the ROK-US Summit". It states that "The two Presidents reaffirmed that the Korea-U.S. Free Trade Agreement (KORUS FTA) will boost trade, increase economic growth and create jobs in both the United States and Korea, while also adding an enduring economic pillar to our two countries' bilateral partnership. Toward that end, the two Presidents committed themselves to working with their respective legislatures to approve the KORUS FTA as soon as possible."

President Lee stated at a news conference on August 6 that "We also discussed specific ways to strengthen cooperation between Korea and the U.S. President Bush said that he will do his best so that the ratification of the KOR-U.S. FTA, as well as Korea's participation in the visa waiver program will be finalized within this year." See, transcript.

He added that "I will, on my part, continue to convince the Korea National Assembly for ratification".

President Bush stated that "I am worried about the protectionist signals coming out of the U.S. Congress, and one way to kind of send a different message is for the Democratic leadership in the Congress to bring the -- bring a couple of trade bills up, Colombia and Korea, and get some votes out there, and let Congress -- people in Congress declare one way or the other whether they're for open markets and free and fair trade. And I can assure you, Mr. President, this administration is for free and fair trade, and will continue to press hard for what I think is a very good agreement."

The US and Korea completed negotiation of this FTA over 17 months ago. See, story titled "US and Korea Announce FTA" in TLJ Daily E-Mail Alert No. 1,559, April 2, 2007. See also, text of the agreement, and particularly, sections regarding telecommunications [17 pages in PDF], electronic commerce [4 pages in PDF], intellectual property rights [35 pages in PDF].

On September 20, 2007, the U.S. International Trade Commission (USITC) released its report [392 pages in PDF] titled "U.S. Korea Free Trade Agreement: Potential Economy-wide and Selected Sectoral Effects", which concludes that if this FTA were implemented, "U.S. GDP would likely increase by $10.1–11.9 billion as a result of tariff and tariff-rate quota (TRQ) provisions related to goods market access."

The House is in recess until September 8. Some Republicans continue to speak on the House floor urging Rep. Nancy Pelosi (D-CA), the Speaker of the House, to reconvene the House to address energy policy and vote on HR 6566 [LOC | WW], the "American Energy Act".

The Senate will not meet.

1:45 - 4:00 PM. The American Enterprise Institute (AEI) will host a panel discussion titled "The Collapse of the WTO Doha Round Trade Talks: Implications and Future Options". The speakers will be Warren Maruyama (General Counsel, Office of the U.S. Trade Representative), Paul Blustein (Brookings Institution), Gary Horlick (Wilmer Hale), Arvind Panagariya (Columbia University), Franklin Vargo (National Association of Manufacturers), Claude Barfield (AEI), and Philip Levy (AEI). See, notice. Location: AEI, 12th floor, 1150 17th St., NW.

EXTENDED TO OCTOBER 22. Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Second Further Notice of Proposed Rulemaking regarding assignment of Educational Broadband Service (EBS) spectrum in the Gulf of Mexico. The FCC adopted this item on March 18, 2008, and released the text [111 pages in PDF] on March 20, 2008. This item is FCC 08-03 in WT Docket Nos. 03-66, 03-67, and 02-68, IB Docket No. 02-364, and ET Docket No. 00-258. See, notice of extension of comment deadlines in Federal Register, July 8, 2008, Vol. 73, No. 131, at Pages 38955-38956.

CANCELLED. 1:00 PM. The Department of Health and Human Services' (DHHS) American Health Information Community's (AHIC) Electronic Health Records Workgroup may meet. AHIC meetings are often noticed, but cancelled. Location: Switzer Building, 330 C St., SW.

Deadline to submit reply comments to the Federal Communications Commission (FCC) regarding competitive bidding procedures for Auction 85, regarding LPTV and TV Translator Digital Companion Channels. See, notice in the Federal Register, July 24, 2008, Vol. 73, No. 143, at Pages 43230-43235.

The Senate will meet at 11:00 AM in pro forma session only. These sessions prevent President Bush from making recess appointments.

10:00 AM. Deadline to submit comments to the Office of the U.S. Trade Representative (OUSTR) regarding its Special 301 Out of Cycle Review of Taiwan. This pertains to the adequacy and effectiveness of intellectual property protection and enforcement in Taiwan. See, notice in the Federal Register, July 21, 2008, Vol. 73, No. 140, at Pages 42378-42379.

TIME? The U.S. Patent and Trademark Office's (USPTO) Patent Public Advisory Committee (PPAC) will meet. Location:?

Day one of a two day conference hosted by the U.S. Patent and Trademark Office (USPTO) titled "13th Annual Independent Inventors Conference". See, USPTO release. Location: USPTO, Alexandria, VA.

Deadline to submit comments to the U.S. Patent and Trademark Office (USPTO) in response to its request for comments regarding information collected in Board of Patent Appeals and Interferences (BPAI) actions. See, notice in the Federal Register, June 9, 2008, Vol. 73, No. 111, at Pages 32559-32561.

Deadline to submit comments to the National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) regarding its SP 800-124 [48 pages in PDF] titled "Guidelines on Cell Phone and PDA Security (Draft)".

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Second Further Notice of Proposed Rulemaking regarding post-reconfiguration 800 MHz band plans for the Puerto Rico region. See, notice in the Federal Register, July 14, 2008, Vol. 73, No. 135, at Pages 40274-40276.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Further Notice of Proposed Rulemaking (FNPRM) regarding assignment and administration of ten digit telephone numbers for internet based Telecommunications Relay Services (TRS). This item is FCC 08-151 in CG Docket No. 03-123 and WC Docket No. 05-196. See, notice in the Federal Register, July 18, 2008, Vol. 73, No. 139, at Pages 41307-41311.

Day two of a two day conference hosted by the U.S. Patent and Trademark Office (USPTO) titled "13th Annual Independent Inventors Conference". See, USPTO release. Location: USPTO, Alexandria, VA.

Deadline to submit comments to the U.S. Patent and Trademark Office (USPTO) in response to its notice of proposed rulemaking (NPRM) regarding revising the Trademark Rules of Practice to set forth the requirements for signature of documents filed in the USPTO, recognition of representatives, and establishing and changing the correspondence address in trademark cases. See, notice in the Federal Register, June 12, 2008, Vol. 73, No. 114, at Pages 33345-33356.

Deadline to submit comments to the U.S. Patent and Trademark Office (USPTO) in response to its notice of proposed rulemaking (NPRM) regarding amending the Trademark Rules of Practice to clarify certain requirements for applications, intent to use documents, amendments to classification, requests to divide, and Post Registration practice. See, notice in the Federal Register, June 12, 2008, Vol. 73, No. 114, at Pages 33356-33372.

Extended deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its further notice of proposed rule making (FNPRM) regarding service rules for licensed fixed and mobile services, including Advanced Wireless Services (AWS), in the 1915-1920 MHz, 1995-2000 MHz, 2155-2175 MHz, and 2175-2180 MHz bands. This FNPRM is FCC FCC 08-158 WT Docket Nos. 07-195 and 04-356. See, original notice in the Federal Register, June 25, 2008, Vol. 73, No. 123, at Pages 35995-36013, and notice of extension in the Federal Register, July 14, 2008, Vol. 73, No. 135, at Pages 40271-40272.

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

The Federal Communications Commission (FCC) will commence Auction 78, the AWS-1 and Broadband PCS auction. See, Public Notice (DA 08-1090) and notice in the Federal Register, May 29, 2008, Vol. 73, No. 104, at Pages 30919-30938.

9:00 AM - 12:15 PM. The DC Bar Association will host a panel discussion titled "Legal Cybersleuth's Guide to Investigative Research". The speakers will be Carole Levitt and Mark Rosch (both of Internet For Lawyers). The price to attend ranges from $109 to $149. For more information, contact 202-626-3463. See, notice. Location: DC Bar Conference Center, B-1 Level, 1250 H St., NW.

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

8/5. Sony Corporation announced in a release that it has agreed to acquire Bertelsmann AG's 50% stake in Sony BMG. Sony added that the new company will be named "Sony Music Entertainment Inc.", and will be wholly owned subsidiary of Sony Corporation of America.

8/5. The U.S. District Court (DC) issued its opinion [15 pages in PDF] in Verizon v. CWA, AFL-CIO, granting Verizon's motion for partial vacation of an arbitration award rendered under a collective bargaining agreement between Verizon and the Communications Workers of America (CWA). This pertains to wage rates for certain Verizon employees. This case is Verizon Washington, D.C., Inc. v. Communications Workers of America, AFL-CIO, U.S. District Court for the District of Columbia, D.C. No. No. 07-1460 (PLF), Judge Paul Friedman presiding.

8/5. The U.S. Court of Appeals (8thCir) issued its opinion [15 pages in PDF] in NECA-IBEW Pension Fund v. Hutchinson Technology, a class action securities case against Hutchinson Technology, which makes suspension assemblies for hard disk drives, alleging violation of Section 10b of the Securities Exchange Act. The District Court dismissed the complaint for failing to meet the heightened pleading standards for falsity and scienter required by the Private Securities Litigation Reform Act (PSLRA). The Court of Appeals affirmed. This case is NECA-IBEW Pension Fund v. Hutchinson Technology, Inc., et al., U.S. Court of Appeals for the 8th Circuit, App. Ct. No. 07-2622, an appeal from the U.S. District Court for the District of Minnesota. Judge Smith wrote the opinion of the Court of Appeals, in which Judges Bye and Colloton joined.

8/5. The U.S. Court of Appeals (3rdCir) issued its opinion [36 pages in PDF] in E.T. Browne Drug v. Cococare Products, a trademark dispute. The District Court granted summary judgment to Cococare, concluding that the term at issue is generic and thus not entitled to protection under trademark law. The Court of Appeals affirmed with a different analysis. It concluded that there are genuine issues of material fact on the genericness issue, but that E.T. Browne failed to present evidence as to secondary meaning. However, it remanded to the District Court to write an appropriate order. This case is E.T. Browne Drug Co. v. Cococare Products, Inc., U.S. Court of Appeals for the 3rd Circuit, App. Ct. Nos. 06-4543 and 06-4658, appeals from the U.S. District Court for the District of New Jersey, D.C. No. 03-cv-05442, Judge Peter Sheridan presiding. Judge Ambro wrote the opinion of the Court of Appeals, in which Judges Sloviter and Louis Pollak, sitting by designation, joined.

7/31. The National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) released its SP 800-106 [17 pages in PDF] titled "Randomized Hashing for Digital Signatures" (2nd draft). The deadline to submit comments is Friday, September 5, 2008.

7/25. The National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) released its SP 800-68 Rev. 1 [125 pages in PDF] titled "Guide to Securing Microsoft Windows XP Systems for IT Professionals: A NIST Security Configuration Checklist (DRAFT)". The deadline to submit comments is Friday, August 29, 2008.

7/25. The National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) released a document [22 MB .zip file] titled "NIST Windows Security Baseline Database Application v0.2.7 (Beta)". The deadline to submit comments is Friday, August 29, 2008.

7/22. The U.S. District Court (WDWash) sentenced Robert Alan Soloway to serve 47 months in prison following his plea of guilty to various charges, including violation of 18 U.S.C. § 1037(a), regarding "Fraud and related activity in connection with electronic mail", in connection with his operation of a spam e-mail business. Section 1037 codifies the criminal prohibitions in Section 4 of the CAN-SPAM Act of 2003, which was S 877 (108th Congress), and is now Public Law No. 108-187. The May 23, 2007, indictment [24 pages in PDF] also charged Soloway with mail fraud, wire fraud, aggravated identity theft and money laundering. The Office of the U.S. Attorney for the Western District of Washington stated in a release that Assistant U.S. Attorney Kathryn Warma wrote in her sentencing memorandum that Soloway "is known world-wide for the volume and markedly malicious nature of his criminal spamming activity, the fraudulent ``spam promotion´´ sales scheme associated with it and for brazen and even boastful claims that he is above the law". See also, March 14, 2008, release regarding his guilty plea. This case is USA v. Robert Alan Soloway and Newport Internet Marketing Corporation, U.S. District Court for the Western District of Washington, D.C. No. CR07-0187.

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