10/5. The Department of Justice (DoJ) announced that Google and Yahoo "abandoned their advertising agreement after the Department of Justice informed the companies that it would file an antitrust lawsuit to block the implementation of the agreement".

Yahoo stated in a release that it "continues to believe in the benefits of the agreement and is disappointed that Google has elected to withdraw from the agreement rather than defend it in court".

Google and Yahoo announced this agreement on June 12, 2008. See, story titled "Google and Yahoo Announce Search and Advertising Agreement" in TLJ Daily E-Mail Alert No. 1,779, June 13, 2008.

Thomas Barnett (at right), Assistant Attorney General in charge of the DOJ's Antitrust Division stated in a release that "The companies' decision to abandon their agreement eliminates the competitive concerns identified during our investigation and eliminates the need to file an enforcement action ... The arrangement likely would have denied consumers the benefits of competition -- lower prices, better service and greater innovation".

The DOJ explained in this release that "Internet search advertising and Internet search syndication are each relevant antitrust markets and that Google is by far the largest provider of such services, with shares of more than 70 percent in both markets."

It elaborated that "Yahoo! is by far Google's most significant competitor in both markets, with combined market shares of 90 percent and 95 percent in the search advertising and search syndication markets, respectively. Yahoo! provides an alternative to Google for many advertisers and syndication partners, and Yahoo! recently had begun making significant investments in order to compete more effectively against Google, including the 2007 introduction of its Panama search advertising platform."

It continued that "Had the companies implemented their arrangement, Yahoo!'s competition likely would have been blunted immediately with respect to the search pages that Yahoo! chose to fill with ads sold by Google rather than its own ads, and Yahoo! would have had significantly reduced incentives to invest in areas of its search advertising business where outsourcing ads to Google made financial sense for Yahoo!"

Numerous entities have commented publicly and/or to the DOJ regarding the Yahoo Google deal. See for example, story titled "American Antitrust Institute Comments on Google Yahoo Ad Deal" in TLJ Daily E-Mail Alert No. 1,831, September 24, 2008.

Yahoo's share price closed at under $14 on November 5, 2008. Earlier this year Yahoo rejected an offer from Microsoft to purchase Yahoo at $33 per share. See also, stories titled:

• "Microsoft Makes Offer to Acquire Yahoo" in TLJ Daily E-Mail Alert No. 1,710, February 4, 2008.
• "Yahoo Asserts Microsoft Offer Undervalues Yahoo" in TLJ Daily E-Mail Alert No. 1,715, February 11, 2008.
• "Yahoo Writes Shareholders" in TLJ Daily E-Mail Alert No. 1,717, February 13, 2008.
• "Microsoft Threatens Yahoo with Hostile Proxy Battle" in TLJ Daily E-Mail Alert No. 1,742, April 7, 2008.
• "Microsoft Withdraws Offer to Acquire Yahoo" in TLJ Daily E-Mail Alert No. 1,759, May 2, 2008.
• "Icahn Announces Proxy Fight to Elect Yahoo Board that will Negotiate with Microsoft" in TLJ Daily E-Mail Alert No. 1,768, May 16, 2008.
• "Microsoft and Yahoo Continue Talks" in TLJ Daily E-Mail Alert No. 1,769, May 19, 2008.

10/4. The Federal Communications Commission (FCC) adopted, but did not release, a Second Report and Order allowing unlicensed use of unused television spectrum, which is also sometimes referred to as white space.

The FCC issued a short release [PDF] that describes this item, and all five Commissioners released statements.

The National Association of Broadcaster's (NAB) Dennis Wharton stated in a release that "today's vote is just the beginning of a fight".

The FCC release states that this item adopts rules that "will allow for the use of these new and innovative types of unlicensed devices in the unused spectrum to provide broadband data and other services for consumers and businesses".

This release states that "The rules will allow for both fixed and personal/portable unlicensed devices. Such devices must include a geolocation capability and provisions to access over the Internet a data base of the incumbent services, such as full power and low power TV stations and cable system headends, in addition to spectrum-sensing technology. The data base will tell the white space device what spectrum may be used at that location."

The FCC release adds that the FCC "will permit certification of devices that do not include the geolocation and data base access capabilities, and instead rely solely on spectrum sensing to avoid causing harmful interference, subject to a much more rigorous approval process."

It also states that "All white space devices are subject to equipment certification by the FCC Laboratory. The Laboratory will request samples of the devices for testing to ensure that they meet all the pertinent requirements."

This release also states that the FCC will "explore in a separate Notice of Inquiry whether higher-powered unlicensed operations might be permitted in TV white spaces in rural areas".

Commissioners' Statements. FCC Chairman Kevin Martin wrote in his statement [PDF] that opening the white space "has the potential to improve wireless broadband connectivity and inspire an ever-widening array of new Internet based products and services for consumers".

This item follows the October 15, 2008, release of the FCC's Office of Engineering and Technology (OET) report [146 pages in PDF] titled "Evaluation of the Performance of Prototype TV-Band White Space Devices Phase II".

See, story titled "FCC Releases White Space Report" in TLJ Daily E-Mail Alert No. 1,844, October 17, 2008, and stories titled "Rep. Dingell Writes FCC Regarding Unlicensed Devices in the White Space" and "Broadcasters Seek Delay in White Space Proceeding" in TLJ Daily E-Mail Alert No. 1,847, October 27, 2008.

FCC Commissioner Michael Copps praised "the power of technology to turn scarcity into abundance". He also wrote in his statement [PDF], regarding the OET review, that "few other engineering analyses at the FCC have been as lengthy or open as this one".

FCC Commissioner Jonathan Adelstein praised this item in his statement [PDF]. He also praised the decision to issue a NOI, although he wrote that he would have preferred an NPRM.

He wrote that "In order for the white spaces to achieve maximum utilization in rural areas, rural wireless Internet service providers will need cheap, available and reliable backhaul. We need to explore all ways of achieving this. Variable power limits deserve our consideration as one possible means."

FCC Commissioner Deborah Tate wrote a lengthy statement [6 pages in PDF]. While she found much to praise, she also identified shortcomings. For example, she wrote that "I regret that the Order does not include language that would specifically state the legal responsibilities of those who provide these new unlicensed devices."

She also wanted this item to take "more specific steps to address higher-power fixed operations in rural areas".

She also complained that this item "makes it difficult if not impossible to allow anything other than unlicensed use in the white spaces". She would have made some spectrum available on a licensed basis.

She wrote that "I am not convinced that making Channels 21 – 51 available only for unlicensed use is necessary to create the types of exciting new services that have been predicted. I am even less convinced – and the record does not support – that we must make the entire core TV band, Channels 2 – 51, available for such use. This is more spectrum than was requested by most of the parties who argued that they could provide new and innovative services using Channels 21 – 51. Therefore, while I supported moving forward to allow a portion of the white spaces be made available for unlicensed use, I respectfully dissent from including all channels in the band plan in this order."

FCC Commissioner Robert McDowell noted in his statement [PDF] that "Our decision today also obviates the need for artificial government mandates, such as those imposed on the C Block of our 700 MHz auction."

Reaction. The Public Interest Spectrum Coalition (PISC) praised the FCC's action in a release. It wrote that "New wireless services will develop as a result of this decision that would not have been allowed to be realized otherwise. These new services will enrich the lives of Americans while not interfering with their traditional entertainment options."

The PISC includes the Cuwin Foundation, Consumer Federation of America (CFA), Consumers Union (CU), Educause, Free Press (FP), Media Access Project (MAP), National Hispanic Media Coalition (NHMC), New America Foundation (NAF), the Open Source Wireless Coalition (OSWC), Public Knowledge (PK), and USPIRG.

The Consumer Electronics Association (CEA) stated in a release that it "applauds" the FCC’s efforts. It added that it "will work with all stakeholders to ensure that adequate safeguards are in place to enable the proliferation of new wireless broadband services and devices without interfering with consumers' enjoyment of digital television programming."

Microsoft's Craig Mundie stated in a release that "Today's vote ushers in a new era of wireless broadband innovation. Like other unlicensed facilities, which enabled popular technologies such as WiFi and Bluetooth, white spaces will make possible new and creative solutions to a range of broadband connectivity challenges. For example, white-spaces radios can help rural communities to augment their broadband Internet access inexpensively. Today's vote also makes possible new ways to connect people and devices to each other and to Internet-based services, helping boost American productivity. And it will create opportunities for American companies to remain at the forefront of technological innovation worldwide, helping to create jobs and economic growth.

This item is FCC 08-260 in ET Docket No. 04-186.

10/3. The Supreme Court denied certiorari in Lofton-Taylor v. Verizon Wireless, a case regarding the Fair Credit Reporting Act (FCRA). The Supreme Court let stand the January 23, 2008, opinion [7 pages in PDF] of the U.S. Court of Appeals (11thCir), which affirmed the District Court's summary judgment for Verizon Wireless.

The plaintiff is Nellina Lofton-Taylor. She alleges that she has not been able to negotiate personal checks at K-Mart or another store as a result of actions taken by Verizon Wireless.

The Court of Appeals opinion states that Lofton-Taylor went to a VW to make a payment on the cell phone account of her husband, and told a VW employee so, who responded, "okay". However, she wrote the wrong phone number on the check. Later, realizing the error, and not wishing to pay someone else's phone bill, she notified the same VW employee by phone. She also placed a stop payment order with her bank. VW deposited the check, and did not credit payment to her husband's account. The bank returned the check to VW, which VW forwarded it to a consumer reporting agency, Certegy.

The Court of Appeals opinion further states that "Verizon had an agreement with Certegy Check Services, Inc. The agreement provided that Verizon would seek pre-approval from Certegy for any check given to it by a customer. In exchange, if Certegy approved the check and it was later returned for insufficient funds, then Certegy would pay Verizon for the amount of the check. Certegy would then institute collection proceedings against the issuer of the check. Because Certegy had approved Lofton-Taylor's check, Verizon sent it a copy of the returned check marked ``NSF/Non Redepositable.´´"

VW sent Certegy no other information.

Lofton-Taylor filed a complaint in state court alleging violation of the federal FCRA, which is codified at 15 U.S.C. § 1681, et seq., as well as state law claims of defamation and invasion of privacy. The case was removed to the U.S. District Court.

Lofton-Taylor named other consumer reporting agencies, but dismissed them upon discovery that VW has not reported information to them.

The District Court granted summary judgment to VW on all claims. First, it granted summary judgment on the FCRA claim on the grounds she failed to follow the procedure required by the FCRA. That is, while the retail establishments that refused to take her checks identified Certegy as the reason, she did not notify Certegy of a dispute.

Then, it granted summary judgment on the state law claims on the basis that they were preempted by the FCRA. See, November 14, 2006, opinion [14 pages in PDF] of the District Court.

Lofton-Taylor appealed to the 11th Circuit, but only on the preemption issue. The Court of Appeals affirmed. It concluded that she failed to introduce evidence that VW reported false information to a consumer reporting agency (CRA). That is, merely forwarding the bank stamped check was not false information.

The relevant preemption language of the FCRA, at Section 1681h(e), provides, in part, that "no consumer may bring any action or proceeding in the nature of defamation, invasion of privacy, or negligence with respect to the reporting of information against ... any person who furnishes information to a consumer reporting agency ... except as to false information furnished with malice or willful intent to injure such consumer."

The Court of Appeals reasoned that VW is a "person who furnishes information to a consumer reporting agency", that Certegy is a CRA, but that forwarding the stamped check was not "false information furnished with malice or willful intent". Hence, any action for "defamation, invasion of privacy, or negligence with respect to the reporting" is preempted.

Certegy is leveraging its position as a CRA with relationships with numerous businesses to obtain money from someone who is not a customer of VW, and whose check was not credited by VW to the account which VW agreed it would be credited. The lower courts held, in a plain reading of the statute, that this does not violate the FCRA, and the FCRA precludes the consumer from obtaining redress under other causes of action. VW benefits indirectly from this practice through its contract relationship with Certegy.

And now, the Supreme Court has let stand the conclusions of the lower courts, and this practice.

Wireless carriers, and other communications companies, face increasing efforts by consumer groups and others to obtain federal legislation that would further regulate thier relationships with their customers.

This case is Nellina Lofton-Taylor v. Verizon Wireless, U.S. Supreme Court, Sup. Ct. No. 08-257, a petition for writ of certiorari to the U.S. Court of Appeals for the 11th Circuit, App. Ct. No. 06-16142. The Court of Appeals heard an appeal from the U.S. District Court for the Southern District of Alabama, Southern Division, D. C. Docket No. 05-00532-CV-CG-B, Judge Callie Grenade presiding.

See, also Orders List [12 pages in PDF] at page 2.

10/31. The U.S. Court of Appeals (DCCir) issued its opinion [13 pages in PDF] in C-SPAN v. FCC, dismissing for lack of standing the cable programmers' petition for review of the Federal Communications Commission's (FCC) Third Report and Order regarding mandatory cable carriage of digital broadcast television signals after the DTV transition.

Background. On September 11, 2007, the FCC adopted a Third Report and Order and Third Further Notice of Proposed Rulemaking regarding the mandatory cable carriage of digital broadcast television signals after the conclusion of the digital television (DTV) transition.

The FCC elaborated that cable operators can "comply with the viewability requirement by choosing to either: (1) carry the digital signal in analog format, or (2) carry the signal only in digital format, provided that all subscribers have the necessary equipment to view the broadcast content."

See, story titled "FCC Adopts R&O and Further NPRM Regarding Cable Carriage of Digital Broadcast TV Signals" in TLJ Daily E-Mail Alert No. 1,640, September 17, 2007.

The FCC released the text [68 pages in PDF] of this item on November 30, 2007. This proceeding is titled "Carriage of Digital Television Broadcast Signals, Amendment to Part 76 of the Commission's Rules". This order is FCC 07-170 in CS Docket No. 98-120.

C-SPAN and other cable programmers filed a petition for review on February 4, 2008. See, story titled "Cable Programming Networks Challenge FCC's September Viewability Order" in TLJ Daily E-Mail Alert No. 1,716, February 12, 2008.

The FCC argued in its July 18, 2008, brief [87 pages in PDF] that C-Span, Discovery and other cable programming networks lack standing to challenge this order, that the order is consistent with 47 U.S.C. §§ 534 and 535, and that the order does not violate the First Amendment rights of the C-SPAN and the other petitioners.

Holding. The Court of Appeals did not reach the merits of the petition. Rather, it dismissed the petition for lack of standing.

It wrote that "The cable operators themselves have not challenged the Viewability Order. Instead, petitioners are cable programmers who fear that access to cable operators' systems will become more difficult because of the viewability mandate. They contend that the requirements of the Viewability Order are contrary to the plain meaning of the Communications Act, are arbitrary and capricious, and violate their First Amendment rights."

It continued that the "Petitioners' theory of standing is that by requiring increases in the percentage of bandwidth devoted by hybrid cable systems to must-carry channels, the Viewability Order ensures that hybrid cable systems will have less bandwidth to devote to other uses, including cable programming. This increases the competitive pressure faced by cable programmers as they attempt to sell their wares to cable systems, which have less bandwidth to fill and can thus afford to drive harder bargains with potential suppliers. In addition to immediate economic injuries, they offer that the Viewability Order interferes with their speech by removing further channel capacity from market competition."

The Court of Appeals then reviewed and applied the 1992 opinion of the Supreme Court in Lujan v. Defenders of Wildlife, which is reported at 504 U.S. 555.

Justice Scalia, writing for the majority, wrote then that "Over the years, our cases have established that the irreducible constitutional minimum of standing contains three elements: First, the plaintiff must have 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,' ´´ ... . Second, there must be a causal connection between the injury and the conduct complained of -- the injury has to be ``fairly . . . trace[able] to the challenged action of the defendant, and not . . . th[e] result [of] the independent action of some third party not before the court.´´ ... Third, it must be ``likely,´´ as opposed to merely ``speculative,´´ that the injury will be ``redressed by a favorable decision.´´ ..." (Cited cases omitted. Brackets in original.)

The Court of Appeals wrote in the present case that the cable programmers' "claim of standing, based on the assertion that the Viewability Order necessarily means that they will suffer a First Amendment injury-in-fact as a result of less bandwidth being available, falters."

It explained that "As petitioners' asserted injury arises from an allegedly unlawful regulation of others, under Lujan they cannot meet their burden merely by virtue of their status as programmers. Rather, the petitioners must ``adduce facts showing,´´ Lujan, 504 U.S. at 562, that the challenged regulation will likely cause a concrete and imminent First Amendment injury to at least one of them, and that a favorable decision by this court would redress that injury. While petitioners ask the court to assume that the Viewability Order will burden their speech, the causal connection between the Viewability Order and the claimed injury is tenuous at best."

This case is C-Span, et al. v. FCC and USA, U.S. Court of Appeals, App. Ct. No. 08-1045, a petition for review of a final order of the FCC. Judge Rogers wrote the opinion of the Court of Appeals, in which Judges Tatel and Kavanaugh joined.

This issue contains the following items:
 • Google and Yahoo Abandon Advertising Agreement Because of DOJ Objection
 • FCC Adopts White Space Order
 • Supreme Court Denies Cert in Verizon Wireless FCRA Case
 • DC Circuit Dismisses Cable Programmers' Petition for Review of Viewability Order
 • Supreme Court Hears Oral Argument in Fleeting Expletives Case

The House will not meet.

The Senate will meet in pro forma session.

9:00 AM. The Bureau of Industry and Security's (BIS) Information Systems Technical Advisory Committee (ISTAC) will hold a closed meeting. See, notice in the Federal Register, October 22, 2008, Vol. 73, No. 205, at Page 62951. Location: Room 6087B, Hoover Building, 14th St., between Constitution and Pennsylvania Aves., NW.

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). This meeting is free and open to the public. See, notice in the Federal Register, October 14, 2008, Vol. 73, No. 199, at Page 60721. Location: 700 Pennsylvania Ave., NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Biltmore Forest Broadcasting v. US, App. Ct. No. 2008-5055. See, Federal Circuit oral argument calendar. Location: Courtroom 201, Federal Circuit courthouse, LaFayette Square, 717 Madison Place, NW.

12:00 NOON. The Cato Institute will host a discussion of the book [Amazon] titled "Future Imperfect: Technology and Freedom in an Uncertain World". The speaker will be David Friedman (author). See, notice and registration page. This event is free and open to the public. Lunch will be served after the program. The Cato will web cast this event. Location: Cato, 1000 Massachusetts Ave., NW.

1:30 - 3:00 PM. George Washington University's (GWU) law school's IP Speaker Series will host a lecture by Jeanne Fromer (Fordham University law school) titled "Claiming Intellectual Property". See, notice. Location: Student Conference Center (LIS201), GWU law school.

2:00 - 3:00 PM. The President's National Security Telecommunications Advisory Committee (PNSTAC) will hold a partially closed meeting by teleconference. The open portion of the meeting will be from 2:00 to 2:30 PM. It will include consideration of the "national security/emergency preparedness internet protocol-based traffic report". The closed portion of the meeting will be from 2:30 to 3:00 PM. It will cover "core network assurance, cyber collaboration and internet identity". See, notice in the Federal Register, October 16, 2008, Vol. 73, No. 201, at Page 61433.

RESCHEDULED FROM OCTOBER 8. 2:00 - 4:00 PM. The Department of State's (DOS) International Telecommunication Advisory Committee will meet to prepare for the International Telecommunication Union (ITU) Council Meeting to be held on November 12-21, 2008, in Geneva, Switzerland. See, original notice in the Federal Register, September 22, 2008, Vol. 73, No. 184, at Page 54655. Location: 10th floor, 1120 20th St., NW. See, rescheduling notice in the Federal Register, September 26, 2008, Vol. 73, No. 188, at Pages 55891-55892.

3:30 PM. The New America Foundation (NAF) may host an event titled "Is Success Killing the Internet? A Web of Wide Open Innovation ... Or Closed Appliances?" The speakers will be Jonathan Zittrain (Harvard Law School), Adam Thierer (Progress & Freedom Foundation), Michael Calabrese (NAF), and David Gray (NAF). See, notice and registration page. Location: NAF, 7th floor, 1630 Connecticut Ave., NW.

6:00 - 8:15 PM. The DC Bar Association will host a program titled "How to Litigate a Patent Infringement Case". The speakers will be Patrick Coyne and Jerry Ivey of Finnegan Henderson. The price to attend ranges from $80 to $115. For more information, contact 202-626-3488. See, notice. This event qualifies for continuing legal education (CLE) credits. Location: DC Bar Conference Center, B-1 Level, 1250 H St., NW.

7:00 - 9:30 PM. The Federal Communications Bar Association (FCBA) will host an event titled "19th Annual FCBA Charity Auction". See, event web site. Location: Capital Hilton, 1001 16th St., NW.

Deadline to submit comments to the Office of the U.S. Trade Representative (OUSTR) to assist it in prepared its annual National Trade Estimate Report on Foreign Trade Barriers (NTE). This report is required by 19 U.S.C. § 2241. The NTE report is due annually by March 31. See, notice in the Federal Register, July 31, 2008, Vol. 73, No. 148, at Pages 44785-44786.

Deadline to submit comments to the Federal Trade Commission (FTC) regarding its proposed changes to its Rules of Practice regarding its adjudicative proceedings. See, notice in the Federal Register, October 7, 2008, Vol. 73, No. 195, at Pages 58831-58858.

Deadline to submit comments to the Office of Management and Budget (OMB) regarding the Department of Homeland Security's (DHS) National Cyber Security Division's information collection request titled "1670-NEW, US-CERT Incident Reporting". The DHS announced this request for comments in a notice in the Federal Register, October 7, 2008, Vol. 73, No. 195, at Pages 58608-58609. The DHS announced this information collection request in a notice in the Federal Register, June 11, 2008, Vol. 73, No. 113, at Pages 33101-33102.

9:00 AM - 3:30 PM. The Bureau of Economic Analysis's (BEA) BEA Advisory Committee (BEAAC) will meet. The meeting will address ways in which the national economic accounts can be presented more effectively for current economic analysis and recent statistical developments in national accounting. The BEAAC focuses on activities arising from innovative and advancing technologies. See, notice in the Federal Register, September 29, 2008, Vol. 73, No. 189, at Page 56548. Location: BEA, 1441 L St., NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Synthes (USA) v. GM Dos Reis, App. Ct. No. 2008-1279, a patent infringement case involving the issue of personal jurisdiction. See, Federal Circuit oral argument calendar. Location: Courtroom 201, Federal Circuit courthouse, LaFayette Square, 717 Madison Place, NW.

2:00 - 3:00 PM. The U.S. Patent and Trademark Office's (USPTO) Patent Public Advisory Committee (TPAC) will meet. See, agenda. Location: USPTO, Madison East 2nd Floor, 600 Dulany St., Alexandria, VA.

12:00 NOON. The Cato Institute will host a discussion of the book [Amazon] titled "Against Intellectual Monopoly". The speakers will be Michele Boldrin (co-author), Robert Atkinson (Information Technology and Innovation Foundation) and Jim Harper (Cato). See, notice and registration page. This event is free and open to the public. Lunch will be served after the program. The Cato Institute will web cast this event. Location: Cato, 1000 Massachusetts Ave., NW.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Notice of Inquiry (NOI) regarding requiring devices capable of receiving Satellite Digital Audio Radio Service (SDARS) to include digital audio broadcast (DAB), HD Radio, or other technologies capable of providing audio entertainment services. This is a part of the FCC's proceeding on the merger of XM and Sirius. See, story titled "FCC Approves XM Sirius Merger" in TLJ Daily E-Mail Alert No. 1,800, July 25, 2008. The FCC adopted this NOI on August 22, 2008, and released the text [9 pages in PDF] on August 25, 2008. It is FCC 08-196 in MB Docket No. 08-172. See, notice in the Federal Register, September 10, 2008, Vol. 73, No. 176, at Pages 52657-52660.

Veteran's Day. See, Office of Personnel Management's (OPM) list of 2008 federal holidays.

7:00 - 9:00 PM. The George Mason University School of Law will host a program titled "The Economics of Electronic Discovery". For more information, contact Katie Aufderhaar at 703-966-2447. See, notice. A reception will follow the program. This event is free. Location: GMU law school, 3301 Fairfax Drive, Arlington, VA.

12:00 NOON. Barry Salzberg, CEO of Deloitte Touche, will speak at an event hosted by the U.S. Chamber of Commerce's National Chamber Foundation (NCF). See, notice. Location: U.S. Chamber, 1615 H St., NW.

12:15 - 1:30 PM. The Federal Communications Bar Association's (FCBA) Transactional Practice Committee will host a brown bag lunch titled "Closing and Post-Closing Issues: Regulatory and Operational Concerns". The speakers will be Lawrence Movshin (Wilkinson Barker Knauer) and Todd Anderson (Constantine Cannon). RSVP to Christine Crowe at ccrowe at wbklaw dot com. Location: Wilkinson Barker Knauer, Suite 700, 2300 N St., NW.

4:00 - 5:30 PM. George Mason University (GMU) Information Economy Project (IEP) will host a lecture by William Webb (Head of Research and Development at OFCOM) titled "The Theory, Practice, Politics and Problems of Spectrum Reform". For more information, contact Drew Clark at Drew Clark at iep dot gmu at gmail dot com. Location: Room 121, GMU law school, 3301 Fairfax Drive, Arlington, VA. The nearest Metro stop is Virginia Square-GMU on the Orange Line.

6:00 - 8:15 PM. The DC Bar Association will host the second of two parts of a program titled "Export Control Courses". This second part is titled "Export Controls and Economic Sanctions 2008: Recent Developments and Current Issues". The speakers will be Thomas Scott and Carol Kalinoski. The total price to attend ranges from $140 to $210. For more information, contact 202-626-3488. See, notice. This event qualifies for continuing legal education (CLE) credits. Location: DC Bar Conference Center, B-1 Level, 1250 H St., NW.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Third Further Notice of Proposed Rulemaking (3rdFNPRM) regarding its failed D block auction and its efforts to facilitate a nationwide interoperable broadband wireless network for public safety entities. The FCC adopted and released this 3rdFNPRM [237 pages in PDF] on September 25, 2008. See, story titled "FCC Adopts Further NPRM Regarding Public Safety Broadband Network" in TLJ Daily E-Mail Alert No. 1,832, September 25, 2008. This item is FCC 08-230 in WT Docket No. 06-150 and PS Docket No. 06-229. See, notice in the Federal Register, October 3, 2008, Vol. 73, No. 193, at Pages 57749-57851.

12:15 - 1:30 PM. The Federal Communications Bar Association (FCBA) will host a brown bag lunch titled "The World of Wireless: A British View--A Chat with the UK Regulator About the Future World of Wireless". The speaker will be William Webb (head of Ofcom Research and Development). RSVP to Tony Lin at 202-663-8452 or tony dot lin at pillsburylaw dot com. Location: Pillsbury Winthrop Shaw Pittman, 2300 N St., NW.

Deadline to submit to the Office of the U.S. Trade Representative's (OUSTR) new petitions to grant waivers to competitive need limitations (CNLs) for products exceeding the CNLs in 2008, in connection with the OUSTR's 2008 Generalized System of Preferences (GSP) Annual Review. See, notice in the Federal Register, September 12, 2008, Vol. 73, No 178, at Pages 53054-53056, and notice in the Federal Register, October 16, 2008, Vol. 73, No. 201, at Pages 61444-61445.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Notice of Inquiry (NOI) regarding management and oversight of the Universal Service Fund (USF). The FCC adopted this NOI on August 15, 2008 and released the text [17 pages in PDF] on September 12, 2008. It is FCC 08-189 in WC Docket No. 05-195. See, notice in the Federal Register, October 14, 2008, Vol. 73, No. 199, at Pages 60689-60695.

Deadline to submit comments to the Copyright Office (CO) in response to its request for comments regarding its proposal to raise fees for registration of claims, special services and Licensing Division services. See, notice in the Federal Register, October 14, 2008, Vol. 73, No. 199, at Pages 60658-60662. See also, story titled "Copyright Office Proposes to Raise Registration Fees" in TLJ Daily E-Mail Alert No. 1,843, October 15, 2008.

11/4. The Supreme Court heard oral argument in FCC v. Fox Television Stations, a review of the Federal Communications Commission's (FCC) fleeting expletives order.

See, story titled "Supreme Court Grants Certiorari in FCC Fleeting Expletives Case" in TLJ Daily E-Mail Alert No. 1,732, March 18, 2008.

Adam Thierer of the Progress & Freedom Foundation (PFF) stated in a release that "it is important that the Supreme Court rein in the FCC in this matter to also ensure the agency does not seek to expand its powers to cover new media platforms. The First Amendment rights of speakers using cable, satellite, and even the Internet, could be at stake here. We live in an age of media and technological convergence and, therefore, it is vital the Court not allow the FCC to engage in a form of regulatory convergence by letting this old regime bleed over into new quarters."

He also wrote that the FCC "is being unduly influenced by a small handful of particular vociferous special interest groups who are artificially inflating the number of indecency complaints and attempting to propagate the myth that they speak for the masses".

This is a petition for writ of certiorari to the U.S. Court of Appeals (2ndCir). On June 4, 2007, Court of Appeals issued its divided opinion [53 pages in PDF], which is also reported at 489 F.3d 444, holding that the FCC's new policy sanctioning "fleeting expletives" is arbitrary and capricious. See, story titled "2nd Circuit Vacates and Remands FCC Profanity Order" in TLJ Daily E-Mail Alert No. 1,590, June 4, 2007.

This case is Sup. Ct. No. 07-582. See also, Supreme Court docket.

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