11/24. The Federal Trade Commission (FTC) filed a petition for writ of certiorari with the Supreme Court in FTC v. Rambus, an antitrust case regarding Rambus's participation in the JEDEC standards setting process and assertion of patent rights.

The April 22, 2008, opinion [24 pages in PDF] of the U.S. Court of Appeals (DCCir) setting aside the FTC's order left in disarray the FTC's efforts to apply competition law principles to patents and the standards setting process.

The FTC seeks Supreme Court reversal of the judgment of the Court of Appeals.

The Department of Justice's (DOJ) Office of the Solicitor General (OSG) did not join in this petition.

This petition asserts that the questions presented are "Whether deceptive conduct that significantly contributes to a defendant’s acquisition of monopoly power violates Section 2 of the Sherman Act" and "Whether deceptive conduct that distorts the competitive process in a market, with the effect of avoiding the imposition of pricing constraints that would otherwise exist because of that process, is anticompetitive under Section 2 of the Sherman Act".

The FTC's order, which the Court of Appeals set aside, concluded that Rambus's actions violated both Section 2 of the Sherman Act and Section 5 of the FTC Act.

This petition only seeks review of the Court of Appeals opinion as to the Sherman Act violation.

Statutes. Section 5 of the Federal Trade Commission Act, which is codified at 15 U.S.C. § 45, provides in part that "Unfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce, are hereby declared unlawful."

Section 2 of the Sherman Act, which is codified at 15 U.S.C. § 2, provides in part that "Every person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States, or with foreign nations, shall be deemed guilty of a felony ..."

Background. On June 19, 2002, the FTC filed an administrative complaint against Rambus alleging anti-competitive behavior in violation of Section 5 of the FTC Act in connection with its participation in a standard setting body for dynamic random access memory products. See, story titled "FTC Files Administrative Complaint Against Rambus" in TLJ Daily E-Mail Alert No. 455, June 20, 2002.

The complaint pertained to Rambus's participation in the JEDEC Solid State Technology Association, which was formerly known as the Joint Electron Device Engineering Council. JEDEC develops and issues technical standards for a form of computer memory known as synchronous dynamic random access memory (SDRAM).

These organizations are sometimes referred to as standards setting organizations (SSOs) or standards development organizations (SDOs).

In 2006, the FTC concluded that "Rambus's acts of deception constituted exclusionary conduct under Section 2 of the Sherman Act, and that Rambus unlawfully monopolized the markets for four technologies incorporated into the JEDEC standards in violation of Section 5 of the FTC Act."

See, FTC's August 2, 2006, opinion [120 pages in PDF] in its administrative proceeding titled "In the Matter of Rambus, Inc.". See also, FTC Docket No. 9302 for hyperlinks to pleadings in this proceeding.

And see, story titled "FTC Holds That Rambus Unlawfully Monopolized Markets" in TLJ Daily E-Mail Alert No. 1,427, August 8, 2006, and story titled "FTC Files Administrative Complaint Against Rambus" in TLJ Daily E-Mail Alert No. 455, June 20, 2002.

Rambus filed petitions for review of the FTC's orders with the Court of Appeals.

On April 22, 2008, the Court of Appeals set aside the FTC's orders, and remanded to 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.

The Court of Appeals held that the FTC "failed to sustain its allegation of monopolization. Its factual conclusion was that Rambus's alleged deception enabled it either to acquire a monopoly through the standardization of its patented technologies rather than possible alternatives, or to avoid limits on its patent licensing fees that the SSO would have imposed as part of its normal process of standardizing patented technologies. But the latter -- deceit merely enabling a monopolist to charge higher prices than it otherwise could have charged -- would not in itself constitute monopolization." (Italics in original.)

The Court of Appeals also wrote that "We also address whether there is substantial evidence that Rambus engaged in deceptive conduct at all, and express our serious concerns about the sufficiency of the evidence on two particular points."

Cert Petition. The just filed petition argues that the Court of Appeal's "erroneous approach to the issue of causation and competitive effects in Section 2 monopolization cases greatly undermines the ability of antitrust enforcement agencies to prevent exclusionary practices that engender monopolies and harm consumers."

First, the FTC argued, "the court of appeals failed to recognize that the Commission had fully satisfied the elements of Section 2 by showing that Rambus had acquired monopoly power by exclusionary conduct -- that is, conduct other than competition on the merits -- and that such conduct had made a significant contribution to the creation of that power. No more stringent showing of causation is necessary to establish a Section 2 violation."

Second, "the court of appeals erred in faulting the Commission for failing to show that Rambus's deception had anticompetitive effects simply because of uncertainty about which of two possible consequences -- namely, that JEDEC would have adopted an alternative technology or it would have required a RAND commitment -- would have occurred but for that misconduct." (RAND is an acronym for reasonable and nondiscriminatory.)

This case is FTC v. Rambus, Inc., Supreme Court of the U.S., a petition for writ of certiorari to the U.S. Court of Appeals for the District of Columbia, App. Ct. Nos. App. Ct. Nos. 07-1086 and 07-1124.

11/21. The National Telecommunications and Information Administration (NTIA) published a notice in the Federal Register that announces the creation of the NTIA's Online Safety and Technology Working Group (OSTWG). This notice also requests nominations of persons to be members for a 15 month term beginning in January of 2009. It also sets December 12, 2008, as the nominations deadline. See, Federal Register, November 21, 2008, Vol. 73, No. 226, at Pages 70624-70625.

On October 10, 2008, President Bush signed into law S 1492 [LOC | WW], the "Broadband Data Improvement Act". It is now Public Law No. 110-385.

Section 214 of the Act requires the NTIA to create the OSTWG within 90 days.

Section 214 requires the OSTWG to "review and evaluate ... status of industry efforts to promote online safety through educational efforts, parental control technology, blocking and filtering software, age-appropriate labels for content or other technologies or initiatives designed to promote a safe online environment for children"

It also requires the OSTWG to review and evaluate "the status of industry efforts to promote online safety among providers of electronic communications services and remote computing services by reporting apparent child pornography", "the practices of electronic communications service providers and remote computing service providers related to record retention in connection with crimes against children", and "the development of technologies to help parents shield their children from inappropriate material on the Internet"

It then requires the OSTWG to write a report within one year of convening.

11/24. President elect Obama's transition office announced in a release that Timothy Geithner will be nominated to be Secretary of the Treasury, and Lawrence Summers will be the Director of the National Economic Council.

The transition office also announced that Christina Romer will be nominated to be Director of the Council of Economic Advisors. She is an economics professor at UC Berkeley.

Her list of publications reflects that she has written much about the economic depression of the 1930s, but nothing about the economics of innovation, information technology, intellectual property, communications, or networks.

Henry Paulson, the current Secretary of the Treasury, stated in a release that "I have the highest regard for Tim -- his judgment and creativity have been critical to designing and implementing the necessary actions we've taken to protect and strengthen our financial system. I have great confidence in his understanding of markets, his judgment and leadership, and his ability to meet the challenges that lie ahead."

Rep. Steny Hoyer (D-MD) stated in a release that the "incoming economic team combines decades of cumulative experience with some of America's finest financial minds".

Sen. Charles Grassley (R-IA), the ranking Republican on the Senate Finance Committee (SFC), stated in a release that "During the campaign, the kind of change that the President-elect promised was so undefined it made me nervous. Now that he's appointing familiar faces from the Clinton administration to very high-level positions I'm less concerned."

He continued that "Three of the individuals named to lead the President-elect's economic team bring a lot of federal government and financial sector experience to the table. The job before them will be to help restore confidence in the U.S. and global economies. That means providing leadership for tax and trade policies that encourage economic growth and for responsible spending policies that don’t choke the system and inhibit job creation. Tim Geithner is an insider as president of the Federal Reserve Bank in New York, and we could benefit from his knowledge in navigating the government's effort to stabilize the financial system. Larry Summers and Peter Orzag were part of the Clinton administration, where they saw up close how the tech bubble developed."

11/24. President elect Obama's transition office announced in a release that Melody Barnes will be named Director of the Domestic Policy Council, and that Heather Higginbottom will be named Deputy Director.

11/24. Federal Communications Commission (FCC) Commissioner Jonathan Adelstein sent a letter [PDF] to FCC Chairman Kevin Martin regarding Arbitron's rating systems named Portable People Meter (PPM). Adelstein requested that "we open a formal investigation to determine whether the PPM ratings methodology undermines the goals of the Congress and the Commission to enhance media diversity ..." The letter is dated November 18. The FCC published this letter in its web site on November 24.

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This issue contains the following items:
 • FTC Files Cert Petition in FTC v. Rambus
 • NTIA Seeks Members for Online Safety and Technology Working Group
 • Obama Announces Economic Team

The Senate will not meet.

The House will not meet. It will next meet on the week of December 8, 2008.

10:30 AM. The Heritage Foundation will host an event titled "Taiwan, Democracy, and the Rule of Law". The speakers will be Ching Jyh Shieh (Former Deputy Minister of the National Science Council, Republic of China) and Stephen Yates (Heritage). Location: Heritage, 214 Massachusetts Ave., NE.

The Senate will meet in pro forma session.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to the FNPRM portion of its November 5, 2008, Order on Remand regarding universal service, IP enabled services, intercarrier compensation, and other topics. See, notice in the Federal Register, November 12, 2008, Vol. 73, No. 219, at Pages 66821-66830. The FCC adopted and released this Order on Remand and Report and Order and Further Notice of Proposed Rulemaking [430 pages in PDF] on November 5. FCC Chairman Kevin Martin offered this explanation in his statement associated with this item: "Today we tell the U.S. Court of Appeals for the D.C. Circuit and the Federal-State Joint Board on Universal Service that, after years of deliberation, we are still unready to move forward with comprehensive reform of intercarrier compensation and universal service. Instead, we issue another open-ended Further Notice of Proposed Rulemaking on a variety of approaches for comprehensive reform, and my colleagues promise to act on it by December 18." This item is FCC 08-262 in WC Docket No. 05-337, CC Docket No. 96-45, and WC Docket No. 03-109, WC Docket No. 06-122, and CC Docket No. 99-200, CC Docket No. 96-98, and CC Docket No. 01-92, CC Docket No. 99-68, and WC Docket No. 04-36.

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

Deadline to submit comments to the U.S. Department of Agriculture's (USDA) Rural Utilities Service (RUS) regarding its proposed rules regarding standards and specifications for timber products acceptable for use by Rural Development Utilities Programs' electric and telecommunications borrowers. See, notice in the Federal Register, September 29, 2008, Vol. 73, No. 189, at Pages 56513-56528.

Deadline to submit comments to the National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) regarding its SP 800-82 [156 pages in PDF] titled "DRAFT Guide to Industrial Control Systems (ICS) Security".

9:30 AM - 5:00 PM. The Economic Policy Institute (EPI), Information Technology and Innovation Foundation (ITIF), University of California, and other entities will host a one day conference titled "How Will a New Administration and Congress Support Innovation In An Economic Crisis?" See, notice and registration page. For more information, contact Staci Gorden at 301-652-1558. Location: University of  California, Washington Center, 1608 Rhode Island Ave., NW.

Deadline to submit nominations to the Federal Communications Commission's (FCC) Wireline Competition Bureau (WCB) for six different positions on the Board of Directors of the Universal Service Administrative Company (USAC). See, FCC notice [PDF]. This item is DA 08-2487 in CC Docket Nos. 96-45 and 97-21.

Deadline to submit comments to the U.S. Patent and Trademark Office (USPTO) regarding the process by which it awards the National Medal of Technology and Innovation. See, notice in the Federal Register, October 2, 2008, Vol. 73, No. 192, at Pages 57337-57338.

Deadline to submit comments to the Department of Commerce's (DOC) Bureau of Industry and Security (BIS) regarding its new rules pertaining to foreign made items that incorporate controlled U.S. origin items. See, notice in the Federal Register, October 1, 2008, Vol. 73, No. 191, at Pages 56964-56970.

Deadline to submit comments to the Department of Homeland Security (DHS) regarding revising the National Infrastructure Protection Plan (NIPP). See, notice in the Federal Register, November 14, 2008, Vol. 73, No. 221, at Pages 67532-67534. The DHS seeks comments on, among other things, "Publishing the Sector Specific Plans (SSPs)". There are SSPs titled Communications [132 pages and 3MB in PDF] and Information Technology [11 MB in PDF].

10:00 - 11:30 AM. The New America Foundation (NAF) will host an event titled "A National Broadband Strategy Call to Action". See, notice. Location: Room 253, Russell Building, Capitol Hill.

10:00 AM. The U.S. Court of Appeals (FedCir) will consider on the briefs Cygnus Telecommunications Technology v. Worldport Communications, App. Ct. No. 2008-1351, a appeal from the U.S. District Court (NDCal) in a patent case involving personal jurisdiction and availability of injunctive relief. See, District Court opinion [PDF].

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Cordis v. Boston Scientific, App. Ct. No. 2008-1003. Location: Courtroom 402, 717 Madison Place, NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in O2 Micro International v. Taiwan Sumida, App. Ct. No. 2008-1411, a appeal from the U.S. District Court (EDTex) in a patent case involving inverter controllers for LCD applications. Location: Courtroom 203, 717 Madison Place, NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Monolithic Power v. O2 Micro International, App. Ct. No. 2008-1128. Location: Courtroom 203, 717 Madison Place, NW.

12:30 - 1:45 PM. The New America Foundation (NAF) will host a lunch titled "The Impact of Media on Child and Adolescent Health". The speakers will be Zeke Emanuel (National Institute of Health), Cary Gross (Yale University School of Medicine), Marcella Nunez-Smith (Yale University School of Medicine), Jim Steyer (Common Sense Media), and Michael Calabrese (NAF). See, notice and registration page. Location: Room 253 Russell Building, Capitol Hill.

2:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Tokyo Keiso v. SMC, App. Ct. No. 2008-1045, a patent case regarding ultrasonic flow meters. Location: Courtroom 201, 717 Madison Place, NW.

Deadline to submit comments to the Department of Commerce's (DOC) National Telecommunications and Information Administration (NTIA) proposed rules implementing the E-911 grant program authorized under the Ensuring Needed Help Arrives Near Callers Employing 911 (ENHANCE 911) Act of 2004. This bill was Title I of HR 5419 (108th Congress), a large bill that also addressed spectrum relocation and universal service. It was signed into law on December 23, 2004. It is now Public Law No. 108-494. See, notice in the Federal Register, October 3, 2008, Vol. 73, No. 193, at Pages 57567-57580.

Deadline to submit comments to the Copyright Office (CO) in response to its notice of inquiry in its fourth triennial review of exemptions to the anti-circumvention provisions of the Digital Millennium Copyright Act (DMCA). See, notice in the Federal Register, October 6, 2008, Vol. 73, No. 194, at Pages 58073-58079, and story titled "Copyright Office Announces 4th Triennial Review of DMCA Exemptions" in TLJ Daily E-Mail Alert No. 1,839, October 7, 2008.

Deadline to submit initial comments to the Federal Communications Commission (FCC) regarding the Rural Cellular Association's (RCA) May 20, 2008, petition for rulemaking [25 pages in PDF] regarding "the widespread use and anticompetitive effects of exclusivity arrangements between commercial wireless carriers and handset manufacturers" and "rules that prohibit such arrangements". See, notice in the Federal Register, October 23, 2008, Vol. 73, No. 206, at Pages 63127-63128. This proceeding is RM No. 11497.

Deadline to submit initial comments to the Federal Communications Commission (FCC) regarding the Rural Telecommunications Group's (RTG) July 16, 2008, petition for rulemaking [22 pages in PDF] regarding imposing a spectrum cap for commercial terrestrial spectrum. The RTG requests that the FCC write rules that provide that no licensee of commercial terrestrial wireless spectrum below 2.3 GHz, including all parties under common control, should be permitted to have an attributable interest in more than 110 megahertz of licensed spectrum with any significant overlap in any county. See, notice in the Federal Register, October 23, 2008, Vol. 73, No. 206, at Pages 63128-63129. This proceeding is RM No. 11498.

8:30 AM - 5:00 PM. Day one of a three day meeting of the National Institute of Standards and Technology's (NIST) Information Security and Privacy Advisory Board (ISPAB). See, notice in the Federal Register, November 12, 2008, Vol. 73, No. 219, at Page 66844. Location: George Washington University, Cafritz Conference Center, 800 21st St., NW.

9:00 AM - 4:00 PM. The Department of Homeland Security's (DHS) Data Privacy and Integrity Advisory Committee will meet. See, notice in the Federal Register, November 19, 2008, Vol. 73, No. 224, at Page 69668. Location: Galleries I and II, Hilton Arlington Hotel, 950 North Stafford St., Arlington, VA.

10:00 AM. The Securities and Exchange Commission (SEC) will hold an event titled "Open Meeting". Location: SEC, Room L-002, 100 F St., NE.

12:00 NOON - 1:30 PM. The DC Bar Association (DCBA) will host a closed event titled "Wiring Buildings: Next Steps For The Communications And Real Estate Industries". The speakers will be Steven Morris (NCTA), Yaron Dori (Covington & Burling), Natalie Roisman (Wilkinson Barker Knauer), Gerard Lederer (Miller & Van Eaton), Michael Schooler (NCTA), and Hank Hultquist (AT&T). The price to attend ranges from $10 to $15. For more information, contact 202-626-3463. See, notice. The DCBA has a record of excluding persons from its events. Location: DC Bar Conference Center, B-1 Level, 1250 H St., NW.

2:00 - 3:00 PM. The Department of Homeland Security's (DHS) Homeland Security Information Network Advisory Committee will meet by teleconference. The listen only call in number is 1-866-222-9044; the PIN is 78982. The agenda includes a discussion of the "Next Generation of the Homeland Security Information Network". See, notice in the Federal Register, November 19, 2008, Vol. 73, No. 224, Pages 69668-69669.

Day one of a three day event hosted by the U.S. Chamber of Commerce titled "One Voice for Trade; International Trade Leadership Program". The price to attend ranges from $175-$225. See, notice. Location: U.S. Chamber, 1650 H St., NW.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to the FNPRM portion of its November 5, 2008, Order on Remand regarding universal service, IP enabled services, intercarrier compensation, and other topics. See, notice in the Federal Register, November 12, 2008, Vol. 73, No. 219, at Pages 66821-66830. The FCC adopted and released this Order on Remand and Report and Order and Further Notice of Proposed Rulemaking [430 pages in PDF] on November 5. FCC Chairman Kevin Martin offered this explanation in his statement associated with this item: "Today we tell the U.S. Court of Appeals for the D.C. Circuit and the Federal-State Joint Board on Universal Service that, after years of deliberation, we are still unready to move forward with comprehensive reform of intercarrier compensation and universal service. Instead, we issue another open-ended Further Notice of Proposed Rulemaking on a variety of approaches for comprehensive reform, and my colleagues promise to act on it by December 18." This item is FCC 08-262 in WC Docket No. 05-337, CC Docket No. 96-45, and WC Docket No. 03-109, WC Docket No. 06-122, and CC Docket No. 99-200, CC Docket No. 96-98, and CC Docket No. 01-92, CC Docket No. 99-68, and WC Docket No. 04-36.

8:30 AM - 5:00 PM. Day two of a three day meeting of the National Institute of Standards and Technology's (NIST) Information Security and Privacy Advisory Board (ISPAB). See, notice in the Federal Register, November 12, 2008, Vol. 73, No. 219, at Page 66844. Location: George Washington University, Cafritz Conference Center, 800 21st St., NW.

9:30 AM - 12:30 PM. The National Telecommunications and Information Administration's (NTIA) Spectrum Management Advisory Committee (SMAC) will meet. See, notice in the Federal Register, November 12, 2008, Vol. 73, No. 219, at Page 66845. This notice states that the SMAC "will consider a transition report and any remaining reports of its Technical Sharing Efficiencies and Operational Sharing Efficiencies subcommittees", and receive public comments. Location: Room 5855 (Secretary's Conference Room), 1401 Constitution Ave.,  NW.

Day two of a three day event hosted by the U.S. Chamber of Commerce titled "One Voice for Trade; International Trade Leadership Program". The price to attend ranges from $175-$225. See, notice. Location: U.S. Chamber, 1650 H St., NW.

8:00 AM - 5:15 PM. Day three of a three day meeting of the National Institute of Standards and Technology's (NIST) Information Security and Privacy Advisory Board (ISPAB). See, notice in the Federal Register, November 12, 2008, Vol. 73, No. 219, at Page 66844. Location: George Washington University, Cafritz Conference Center, 800 21st St., NW.

9:30 AM - 4:45 PM. The Federal Trade Commission (FTC) will hold a hearing titled "The Evolving IP Marketplace". See, FTC notice and notice in the Federal Register, November 21, 2008, Vol. 73, No. 226, at Pages 70645-70648. See also, story titled "FTC to Hold Hearings on IP Law" in TLJ Daily E-Mail Alert No. 1,853, November 5, 2008. Location: FTC, 601 New Jersey Ave., NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Tafas v. Dudas, App. Ct. No. 2008-1352, an appeal from the U.S. District Court (EDVa) in a case regarding the rulemaking authority of the U.S. Patent and Trademark Office (USPTO). The District Court wrote in its opinion that "Because the USPTO's rulemaking authority under 35 U.S.C. § 2(b)(2) does not extend to substantive rules, and because the Final Rules are substantive in nature, the Court finds that the Final Rules are void as ``otherwise not in accordance with law´´ and ``in excess of statutory jurisdiction [and] authority.´´ 5 U.S.C. § 706(2)." (Brackets in original. Hyperlinks added.) Location: Courtroom 203, 717 Madison Place, NW.

Day three of a three day event hosted by the U.S. Chamber of Commerce titled "One Voice for Trade; International Trade Leadership Program". The price to attend ranges from $175-$225. See, notice. Location: U.S. Chamber, 1650 H St., NW.