2/13. The House and Senate both passed the conference report on HR 1 [LOC | WW], the huge spending bill.

The bill passed on nearly straight party line votes. The House approved the bill by a vote of 246-183. See, Roll Call No. 70. Democrats voted 246-7. Republicans voted 0-176.

The Senate approved the bill by a vote of 60-38. See, Roll Call No. 64. Democrats voted 57-0. Republicans voted 3-38. Sen. Susan Collins (R-ME), Sen. Olympia Snowe (R-ME), and Sen. Arlen Specter (R-PA) voted for the bill. Sen. Ted Kennedy (D-MA) did not vote.

For details on the content of the bill, see the following stories in TLJ Daily E-Mail Alert No. 1,899, February 13, 2009:
 • House and Senate to Vote on Conference Report on Spending Bill
 • Summary of Broadband Grants Provisions in Spending Bill
 • Spending Bill Includes More DTV Transition Funding
 • Spending Bill Includes Research Funding
 • Spending Bill Includes Smoot Hawley Provision

Douglas Elmendorf, Director of the Congressional Budget Office (CBO), wrote in a February 13, 2009, letter [8 pages in PDF] to Rep. Nancy Pelosi (D-CA), the Speaker of the House, and other Congressional leaders, that "CBO estimates that enacting the conference agreement for H.R. 1 would increase federal budget deficits by $185 billion over the remaining months of fiscal year 2009, by $399 billion in 2010, by $134 billion in 2011, and by $787 billion over the 2009-2019 period."

Jim Harper wrote in a short piece in the WashingtonWatch.com web site that "Our number crunching comes up with the following results: The bill costs the average U.S. family about $3,300, and it raises the national debt by about $7,700 per family."

Broadband Spending Provisions. The bill provides $4.7 Billion for broadband grants to be distributed by the National Telecommunications and Information Administration (NTIA), and another $2.5 Billion for broadband grants to be distributed by the Rural Utilities Service (RUS).

Kyle McSlarrow, head of the National Cable and Telecommunications Association (NCTA), stated in a release that "We applaud the U.S. House of Representatives passage of the economic stimulus package which establishes broadband as a national priority by promoting consumer adoption of broadband services and the deployment of broadband to unserved and underserved areas throughout the country. The measures adopted in the conference report will fuel our nation's investment in technology to map, modernize and expand our broadband infrastructure, helping drive our economic recovery with new jobs, better educational opportunities, and more efficient access to healthcare."

Grant Siefert, head of the Telecommunications Industry Association (TIA), stated in a release that "Broadband networks directly impact the productivity of our industries and our economy, and unequivocally affect public safety, education, health care, and countless other functions in Americans' daily lives ... Like any other infrastructure project, the deployment and use of broadband will significantly increase and maintain job growth well beyond the initial investment in the infrastructure, laptops and computing devices themselves. Broadband incentives are a necessary component of a 21st century stimulus package."

Walter McCormick, head of USTelecom, stated in a release that "We applaud the Senate and House for timely action on this important legislation. Like all Americans we want to see these stimulus efforts succeed in reviving our nation's economy and putting Americans back to work."

Smoot Hawley. This bill provides that "None of the funds appropriated or otherwise made available by this Act may be used for a project for the construction, alteration, maintenance, or repair of' a public building or public work unless all of the iron, steel, and manufactured goods used in the project are produced in the United States."

Gary Shapiro, head of the Consumer Electronics Association (CEA), stated in a release that "The `Buy American´ provisions in the stimulus bill will signal to our trading partners around the world that the United States is returning to the bad old days of protectionism and economic nationalism. Rather than stimulate the American economy, these provisions will lead to retaliation from abroad and cost precious jobs in the United States."

He said that "The lessons of Smoot-Hawley and the Great Depression are clear -- if we close our borders to international trade and artificially prop up our own industries, we deepen the global recession and further make ourselves vulnerable to a trade war."

Health IT. The bill provides $19 Billion for health information technology.

Sen. Patrick Leahy (D-VT), stated in the Senate on February 13, that this is "an investment in health information technology that takes meaningful steps to protect the privacy of all Americans."

He said that "Without adequate safeguards to protect health privacy, many Americans would simply not seek the medical treatment that they need for fear that their sensitive health information will be disclosed without their consent. Likewise, health care providers who perceive the privacy risks associated with health IT systems as inconsistent with their professional obligations would avoid participating in a national health IT system."

Sen. Leahy (at right) explained that the privacy provisions of the bill. "First, the provisions give each and every American the right to access his or her own electronic health records, and the right to timely notice of data breaches involving their health information. The recovery package also imposes critical restrictions on the sale of sensitive health data and on the use of Americans' health data for marketing purposes. Lastly, the legislation makes sure that the Secretary of the Department of Health and Human Services receives input from individuals with specific expertise in health information privacy and security, as the Secretary develops a national health information technology system."

The Institute for Policy Innovation (IPI) issued a statement on February 13 in which it argued that "creating centrally stored digital medical records creates the possibility ... that people in the government, and who knows how many others, will be able to access our personal medical information."

The IPI states that "medical scientists want access so they can data-mine aggregated medical information for research purposes". But, others "drawn to the collected data honey pot will not be so good-intentioned. So one question is whether government is competent to protect our information from ne’er-do-wells. Or simply put, can we trust the federal government to protect the privacy of our health data?"

The IPI asks how can a government that admits that there is "$60 billion a year in Medicare fraud", which has "been paying claims filed by doctors who had been dead for years", and "that leaks like a sieve", be trusted "with ensuring that our medical records are private and safe"?

Also on February 13, a grand jury of the U.S. District Court (SDFl) returned an indictment that charges six persons with conspiracy to commit health care fraud in connection with an alleged $10 Million Medicare fraud scheme. See, DOJ release.

E-Verify. The American Civil Liberties Union (ACLU) praised the Congress for deleting from the conference report a mandate that all entities receiving funds under the bill use the Department of Homeland Security's (DHS) E-Verify program.

The ACLU's Caroline Fredrickson stated in a release that "Removing the problematic employment verification provision from the economic stimulus package will help unemployed Americans get back to work".

She added that "E-Verify is known to create significant delays in hiring new employees, a consequence our economy and American workers should not have to suffer in such difficult economic times."

See also, the Cato Institute's November 24, 2008, short paper titled "Scrap E-Verify".

2/13. The U.S. Court of Appeals (DCCir) issued its opinion [14 pages in PDF] in NCTA v. FCC, denying a petition for review of the Federal Communications Commission's 2007 order regarding customer proprietary network information (CPNI) and 47 U.S.C. § 222.

This lets stand the FCC's rules that require service providers to obtain opt-in consent from a customer before disclosing a customer's CPNI to joint venture partners or independent contractors.

Statute. § 222 requires carriers to keep confidential the customer proprietary network information (CPNI) that they possess. The FCC implements this section with rules.

§ 222(a) provides that "Every telecommunications carrier has a duty to protect the confidentiality of proprietary information of, and relating to, other telecommunication carriers, equipment manufacturers, and customers, including telecommunication carriers reselling telecommunications services provided by a telecommunications carrier."

Background. The CPNI rulemaking that gave rise to this case began as a result of the August 30, 2005, petition for rulemaking filed by the Electronic Privacy Information Center's (EPIC) to address the problem of third party data brokers and private investigators who were obtaining CPNI from without authorization of customers.

Data brokers, private investigators, and Hewlett Packard lawyers, or their agents, were taking advantage of inadequate security through pretexting practices, such as pretending to be a customer seeking his own records.

See, story titled "HP Admits Spying on its Directors via Pretexting to Obtain Confidential Home Phone Records" in TLJ Daily E-Mail Alert No. 1,443, September 6, 2006.

The FCC adopted a notice of proposed rulemaking (NPRM) on February 10, 2006. See, story titled "FCC Adopts NPRM Regarding Privacy of Consumer Phone Records" in TLJ Daily E-Mail Alert No. 1,308, February 13, 2006. It released the text [34 pages in PDF] on February 14, 2006. The NPRM is FCC 06-10.

The FCC adopted the Report and Order under review on March 13, 2007. It released the text [PDF] on April 2, 2007. It is FCC 07-22 in CC Docket No. 96-115 and WC Docket No. 04-36.

The FCC order addresses issues other than pretexting. Pertinent to this proceeding, it modified its rules "to require carriers to obtain opt-in consent from a customer before disclosing a customer's CPNI to a carrier's joint venture partners or independent contractors for the purposes of marketing communications related services to that customer."

That is, the FCC received a petition for rulemaking, proceeded to conduct a rulemaking, but then issued rules addressing an issue not raised by the petition.

Meanwhile, the 109th Congress passed HR 4709, the "Telephone Records and Privacy Protection Act". It does address pretexting. See, story titled "Bush Signs Bill That Criminalizes Pretexting to Obtain Phone Records" in TLJ Daily E-Mail Alert No. 1,520, January 16, 2007.

Perhaps it should be noted too that pretexting and other social engineering practices, which were the original impetus for the EPIC's 2005 petition, as well as Congressional hearings and legislation, continue. See, related story in this issue titled "Guilty Plea Reveals Pretexting, Social Engineering and Hacking of Verizon Phone Systems".

NCTA Petition for Review. The National Cable & Telecommunications Association (NCTA) filed a petition for review [PDF] on August 7, 2007. It challenged only the FCC's rules requiring carriers and interconnected voice over internet protocol service providers to obtain opt in customer approval before disclosing CPNI to joint venture partners and independent contractors.

The NCTA argued that the opt-in requirement violates the First Amendment and is arbitrary and capricious.

Qwest and Verizon intervened in support of the NCTA. The EPIC and other groups and individuals filed an amicus curiae brief [PDF] in support of the FCC.

See also, the NCTA brief [99 pages in PDF], and the FCC's brief [85 pages in PDF].

The Court of Appeals heard oral argument on September 10, 2008.

Court of Appeals. The Court of Appeals denied the petition. Therefore, the FCC's opt-in rule stands.

The Court of Appeals noted that neither the NCTA nor its supporters challenge the constitutionality of § 222. It then wrote that "The question naturally arises: if the First Amendment did not bar Congress (in § 222) from requiring carriers to obtain their customers’ consent, how can it be that the First Amendment bars the Commission from implementing § 222 by requiring customer consent?" (Parentheses in original.)

The Court of Appeals held that the FCC's order satisfies the Supreme Court's test for First Amendment challenges to regulation of commercial speech, articulated in Central Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of New York, 447 U.S. 557 (1980).

FCC Chairman Michael Copps stated in a release that "I am pleased by today's D.C. Circuit decision upholding the Commission's efforts to strengthen individual privacy protections. Telephone carriers today handle vast amounts of their customers' personal information, and in light of documented abuses of consumers' privacy, the Commission appropriately required carriers to institute additional safeguards to protect customers' personal information. Today's court decision upholding those safeguards should be a welcome development for all consumers, and the Commission will continue to be vigilant to ensure that their privacy is protected."

This case is NCTA v. FCC and USA, U.S. Court of Appeals for the District of Columbia, App. Ct. No. 07-1312, a petition for review of a final order of the FCC. Judge Randolph wrote the opinion of the Court of Appeals, in which Judges Rogers and Tatel joined.

1/29. The Office of the U.S. Attorney (USAO) for the Northern District of Texas announced that Matthew Douglas Weigman, a teenage delinquent, entered a plea of guilty in U.S. District Court (NDTex) to obstruction of justice and conspiring to obstruct justice.

What is significant about this case is that the underlying acts being investigated demonstrate how vulnerable Verizon's phone systems have been to pretexting, social engineering, and hacking. See. USAO release and CCIPS release [PDF] on the plea.

Weigman pled guilty to obstruction of justice, and conspiring to obstruct justice, in connection with his interference with Verizon's fraud investigator assigned to his case. Weigman was able to acquire the confidential phone records of this investigator.

The USAO's June 17, 2008, release regarding Weigman's indictment adds that he attempted but failed to "gain access to the Dallas U.S. Attorney's Office voice mail system".

The USAO's latest release lists various activities of Weigman and other conspirators.

This includes "unauthorized access to telecommunication company information stored on protected computers to obtain personal identifying information".

It includes use of "software and hardware configured to insert or modify telecommunication access devices and account information for telephone customers and employees to obtain free telephone service or to discontinue service for telephone subscribers".

The release states that they "would fraudulently obtain the personal identifiers of certain telecommunication employees and impersonate the customer of the targeted telephone number, impersonate the telecommunications employee capable of initiating changes to the targeted telephone number, and/or establish fraudulent telephone accounts."

It states that "When Verizon identified a phone line that Weigman had obtained by fraud in April 2008 and turned that phone line off, Weigman used the identities and authorization codes of Verizon employees to have the phone reactivated."

It also states that Weigman gained "unauthorized access to the phone system to conduct unauthorized electronic monitoring of Verizon employees' phones to harass the employee and obtain information about the status of the investigation against him".

The USAO also stated that other members of the conspiracy made spoof calls to emergencies services, made "it appear to emergency services that the call was actually made from the victim's residence", and therein fabricated stories of murders, guns, drugs and hostages.

It also states that "Weigman made more than 50 telephone calls to the Verizon Provisioning Center located in Irving, Texas, and using unauthorized access to their computers, obtained telecommunications services including Caller ID blocking and call forwarding. He also used these Verizon computers to establish new accounts and services to use in concealing the Caller ID of his coconspirators and to terminate services to victims. Weigman also made unauthorized access to these computers to obtain account subscriber information which was used to identify personal information for targeting new victims".

It also states that Weigman and others obtained "information by various means including ``social engineering´´ or pretexting of telephone calls to telecommunications company employees, ``war dialing,´´ and trafficking in pass phrases and access information with other phone ``phreakers,´´".

Finally, it states that Weigman "used their abilities to manipulate the phone system to listen to phone conversations without permission for both pleasure and financial gain".

The USAO states that Weigman is now 18, but that his criminal acts began in June of 2003.

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This issue contains the following items:
 • Congress Passes Spending Bill
 • DC Circuit Rules in NCTA v. FCC
 • Guilty Plea Reveals Pretexting, Social Engineering and Hacking of Verizon Phone Systems
 • Kindle2's Text to Audio Feature and Copyright

George Washington's birthday observed. See, Office of Personnel Management's (OPM) list of 2009 federal holidays. The National Press Club will be closed.

The House will not meet the week of February 16-20.

The Senate will not meet the week of February 16-20.

10:00 AM. The Federal Trade Commission (FTC) is scheduled to begin its hearing in In the Matter of Whole Foods Markets, Inc. See, scheduling order [14 pages in PDF]. See also, story titled "DC Circuit Reverses in FTC v. Whole Foods" in TLJ Daily E-Mail Alert No. 1,802, July 29, 2008. Location: Room 532, FTC, 600 Pennsylvania Ave., NW.

5:00 PM. Deadline to register for the Federal Communications Bar Association's (FCBA) February 18 event titled "Investing in Foreign Telecoms Markets: Challenges and Opportunities". See, notice and registration page.

POSTPONED. Deadline for full power television stations to cease analog broadcasting. See, S 352 [LOC | WW], the "DTV Delay Act".

8:30 AM - 4:45 PM. The U.S.-China Economic and Security Review Commission will hold a meeting titled "China's Role in the Origins of and Response to the Global Recession". See, notice in the Federal Register, January 13, 2009, Vol. 74, No. 8, at Page 1768. Location: Room 562, Dirksen Building, Capitol Hill.

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in Globalstar v. FCC, App. Ct. No. 08-1046. This is a petition for review of an FCC order regarding Big LEO spectrum. See, FCC brief [67 pages in PDF]. Judges Sentelle, Garland and Edwards will preside. Location: 333 Constitution Ave., NW.

10:00 AM. Deadline for all commenters, except foreign governments, to submit comments to the Office of the U.S. Trade Representative (OUSTR) regarding countries that deny adequate and effective protection of intellectual property rights or deny fair and equitable market access to U.S. persons who rely on intellectual property protection. These comments assist the OUSTR in fulfilling its obligations under Section 182 of the Trade Act Act of 1974. See, notice in the Federal Register, January 23, 2009, Vol. 74, No. 14, Page 4263-4264.

12:30 - 1:30 PM. The Federal Communications Bar Association's (FCBA) State and Local Practice Committee will host a brown bag lunch titled "Collaboration between States, Federal Government and Industry on Uniform Outage Reporting for Carriers". The speaker will be Tom Goode, General Counsel of the Alliance for Telecommunications Industry Solutions (ATIS). See, notice and registration page. Location: Renaissance Hotel, Meeting Room 3, 999 9th St., NW.

1:00 - 3:00 PM. The Federal Communications Commission's (FCC) World Radiocommunications Conference (WRC-11) Advisory Committee's Informal Working Group 2: Terrestrial Services will meet. See, notice and FCC's WRC-11 web site. Location: FCC, South Conference Room, 2nd floor, Room 2-B516, 445 12th St., SW.

3:00 - 5:00 PM. The Federal Communications Commission's (FCC) World Radiocommunications Conference (WRC-11) Advisory Committee's Informal Working Group 3: Space Services will meet. See, notice and FCC's WRC-11 web site. Location: FCC, South Conference Room, 2nd floor, Room 2-B516, 445 12th St., SW.

5:00 PM. Deadline to submit applications to the National Institute of Standards and Technology (NIST) for participation in its 2009 SURF grant programs. These are the NIST's Gaithersburg Summer Undergraduate Research Fellowship Program, and Boulder Summer Undergraduate Research Fellowship Program. The NIST distributes grants for, among other topics, electronics and electrical engineering, and information technology. See, notice in the Federal Register, December 30, 2008, Vol. 73, No. 250, at Pages 79817-79822.

10:00 AM - 12:00 NOON. The Federal Communications Commission's (FCC) World Radiocommunications Conference (WRC-11) Advisory Committee's Informal Working Group 1: Maritime, Aeronautical and Radar Services will meet. See, notice and FCC's WRC-11 web site. Location: 1800 North Kent St., Suite 1060, RTCM, Rosslyn, VA.

12:15 - 1:45 PM. The Federal Communications Bar Association's (FCBA) Young Lawyers Committee will host a brown bag lunch titled "Transitions -- How to Successfully Navigate a Move into a New Position". The speakers will include Marcia Shannon (Shannon & Manch), Dan Binstock (BCG Attorney Search), Peter Shields (Wiley Rein), Laura Rychak (Cox Enterprises), and (?) Anna Gomez. RSVP to Christy Hammond at chammond at wileyrein dot com. For more information or to submit anonymous questions for the speakers, contact Cathy Hilke at chilke at wileyrein dot com or Christina Langlois at clanglois at nualumni dot com. Location: Wiley Rein, 5th floor, 1750 K St., NW.

6:00 - 8:15 PM. The Federal Communications Bar Association (FCBA) will host an event titled "Investing in Foreign Telecoms Markets: Challenges and Opportunities". See, notice and registration page. The price to attend varies. Location: Bingham McCutchen, 11th floor, 2020 K St., NW.

10:30 AM - 12:00 NOON. The Heritage Foundation will host an event titled "Taiwan: Ideal Candidate for Free Trade Agreement". The speakers will be Chris Padilla, Rupert Hammond-Chambers (U.S.-Taiwan Business Council), and Walter Lohman (Heritage). Location: Heritage, 214 Massachusetts Ave., NE.

11:00 - 2:00 PM. George Washington University's (GWU) law school's IP Speaker Series will host a lecture by Greg Vetter. See, notice. Location: Faculty Conference Center (B505), GWU law school.

12:15 PM. The Federal Communications Bar Association's (FCBA) Wireless Telecommunications Practice Committee will host a lunch titled "How can telecommunications technologies, specifically wireless technologies, lead the green revolution?". Location: Sidley Austin, 6th floor, 1501 K St., NW.

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in Ad Hoc Telecommunications Users Committee v. FCC, App. Ct. No. 07-1426. This is a petition for review of an FCC forbearance decision. See, FCC brief [84 pages in PDF]. Judges Sentelle, Kavanaugh and Edwards will preside. Location: 333 Constitution Ave., NW.

12:15 - 1:45 PM. The New America Foundation (NAF) will host discussion of the book [Amazon] titled "Viral Spiral: How the Commons Built a Digital Republic of Their Own". The speakers will be David Bollier (author), Sascha Meinrath (NAF), and Michael Calabrese (NAF). See, notice and registration page. Location: NAF, 7th floor, 1630 Connecticut Ave., NW.

Extended deadline to submit reply 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. See, FCC notice of extension [PDF], and notice of extension in the Federal Register, December 12, 2008, Vol. 73, No. 240, at Pages 75629-75630.

Deadline to submit comments to the National Science Foundation's (NSF) National Coordination Office for Networking Information Technology Research and Development (NCO/NITRD) that contain "promising game-changing ideas with the potential to reduce vulnerabilities to cyber exploitations by altering the cybersecurity landscape". See, notice in the Federal Register, December 30, 2008, Vol. 73, No. 250, at Pages 79919-79921.

The House will return from its one week recess.

10:00 AM - 12:00 NOON. The Federal Communications Commission's (FCC) World Radiocommunications Conference (WRC-11) Advisory Committee's Informal Working Group 4: Regulatory Issues will meet. See, notice and FCC's WRC-11 web site. Location: FCC, North Conference Room, 6th floor, Rooms 6-B112 and 6-B142, 445 12th St., SW.

Deadline to submit initial comments to the Federal Communications Commission (FCC) regarding the October 8, 2008, Petition for Rulemaking [18 pages in PDF] submitted by the CTIA regarding transitioning certain cellular licensing rules to a geographic market area based licensing system. See, FCC's Public Notice numbered DA 09-5, and notice in the Federal Register, January 22, 2009, Vol. 74, No. 13, at Pages 4036-4037. This proceeding is RM No. 11510.

2/12. On February 9, Amazon put on sale the second version of its wireless book downloader and reader, named Kindle2. This version has speakers, and a feature named "Read to Me".

Amazon stated in its web site that "Now Kindle can read to you. With the new Text-to-Speech feature, Kindle can read every book, blog, magazine, and newspaper out loud to you."

17 U.S.C. § 106 lists the exclusive rights in copyrighted works. Neither § 106, nor the definitional section, 17 U.S.C. § 101, reference e-books, audio books, book readers, or text to audio features in book readers.

§ 106 provides, in part, that "Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following: (1) to reproduce the copyrighted work in copies or phonorecords; (2) to prepare derivative works based upon the copyrighted work; ... (4) in the case of literary ... works, ... to perform the copyrighted work publicly; ... and (6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission".

§ 101 defines "copies" as "material objects, other than phonorecords, in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device".

§ 101 defines "derivative work" as "a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted".

Amazon obtains licenses from copyright holders. Its web site discloses nothing about the provisions of such licenses that may pertain to any text to audio feature.

Nor does Amazon's web site make any assertions regarding whether or not its text to audio feature would violate any of the exclusive rights in copyrighted works, if it has a license that covers the text, but is silent as to text to audio features.

Nor does Amazon's web site disclose whether or not its text to audio feature creates any permanent, temporary or transient audio files.

17 U.S.C. § 121 provides a limitation to the § 106 exclusive rights for "copies or phonorecords of a previously published, nondramatic literary work if such copies or phonorecords are reproduced or distributed in specialized formats exclusively for use by blind or other persons with disabilities".

This limitation is inapplicable, to the extent that Amazon's text to audio feature is not "exclusively for use by blind or other persons with disabilities". While this text to audio feature will be used by blind persons, both the nature of the technology, and Amazon's marketing, indicate that the text to audio is not exclusively for blind or disabled persons.

Amazon is touting the advantages of this feature for people driving cars. This is also a major target market segment for audio books.

The Author's Guild (AG) published an item in its web site on February 12, 2009, that states that "This presents a significant challenge to the publishing industry."

The AG explained that "Audiobooks surpassed $1 billion in sales in 2007; e-book sales are just a small fraction of that. While the audio quality of the Kindle 2, judging from Amazon's promotional materials, is best described as serviceable, it's far better than the text-to-speech audio of just a few years ago. We expect this software to improve rapidly."

The AG recommended that "if you haven't yet granted your e-book rights to backlist or other titles, this isn't the time to start. If you have a new book contract and are negotiating your e-book rights, make sure Amazon's use of those rights is part of the dialog."

It added that "Publishers certainly could contractually prohibit Amazon from adding audio functionality to its e-books without authorization, and Amazon could comply by adding a software tag that would prohibit its machine from creating an audio version of a book unless Amazon has acquired the appropriate rights. Until this issue is worked out, Amazon may be undermining your audio market as it exploits your e-books."

The AG concluded that "Bundling e-books and audio books has been discussed for a long time in the industry. It's a good idea, but it shouldn't be accomplished by fiat by an e-book distributor."

There is not now any pending court case, or even a controversy, the parties to which have identified specific items in dispute and their legal interpretations.

The Kindle2 measures 8" x 5.3" x 0.36", weighs 10.2 ounces, and has a display with 600 x 800 pixel resolution at 167 ppi. It has about 1.4 GB of available storage. Users download books by wireless connection, for which there is no service plan or monthly fees. It uses Sprint Nextel's 3G EVDO network. It is on sale in the Amazon web site for $359.

2/13. The Federal Communications Commission (FCC) adopted and released an order [5 pages in PDF] that extends "the analog license terms and adjust the construction permits for the full power television stations subject to to the DTV Delay Act. This Act was S 352 [LOC | WW]. President Obama signed it into law on February 11, 2009. It is now Public Law No. 111-4. This order also amends the FCC's Public Notice released on February 5, 2009, and Public Notice released on February 11, 2009. This order is FCC 09-9 in MB Docket No. 09-17.

2/13. The Federal Communications Commission (FCC) released a Public Notice [2 pages in PDF] regarding TV stations' responses to the FCC's requirements for analog termination on February 17, 2009. This item is DA 09-245. See also, story titled "FCC Makes Further DTV Transition Announcements" in TLJ Daily E-Mail Alert No. 1,898, February 12, 2009. Appendix A [2 pages in PDF] lists the 53 stations that certified that they will comply with the conditions set forth in the February 11, 2009, Public Notice [6 pages in PDF], which is FCC 09-7. Appendix B [1 page in PDF] lists the 10 stations that made an alternate showing. Appendix C [2 pages in PDF] lists the 43 stations that indicated that they no longer intend to terminate analog operations on February 17, 2009.

2/13. The National Telecommunications and Information Administration (NTIA) announced that the extended deadline to submit grants applications under the Low Power Television and Translator Digital to Analog Conversion Program is now June 12, 2009.

2/12. The Federal Communications Commission (FCC) published a Public Notice [2 pages in PDF] regarding the filing of FCC Form 477. This is the FCC semi-annual form for collection of data on local telephone and broadband internet access lines. It is due on March 2, 2009. This item is DA 09-231.

2/12. The Technology Policy Institute (TPI) published in its web site on February 12, 2009, a paper [PDF] titled "The Empirics of the Digital Divide: Can Duration Analysis Help?". The authors are Wei-Min Hu (Peking University Shenzhen Graduate School of Business) and James Prieger (Pepperdine University School of Public Policy). The paper is dated October 21, 2008. Prieger works at the Federal Communications Commission (FCC).

2/12. The Business Software Alliance (BSA) announced settlement of a copyright action against CaseData Corporation. The BSA stated in a release that "CaseData paid BSA $250,000 to settle claims that it had unauthorized copies of Adobe, Microsoft, and Symantec software installed on its computers. As part of the settlement, the company agreed to delete all unlicensed copies of software installed on its computers, acquire any licenses necessary to become compliant, and commit to implementing stronger software license management practices."

2/11. The Library of Congress's (LOC) Copyright Royalty Judges (CRJ) published a notice in the Federal Register that announces, describes, recites, and sets the effective date (March 31, 2009) of, four modifications to the royalty terms previously adopted by the CRJ in their final determination of rates and terms for the mechanical and digital phonorecord delivery statutory license, under 17 U.S.C. § 115. See, Federal Register, February 11, 2009, Vol. 74, No. 27, at  Pages 6832-6834. The CRJ issued its "final determination" on November 24, 2008. The Register of Copyright made two changes on January 26, 2009. See, story titled "Copyright Office Amends Copyright Royalty Judges' § 115 Determination" in TLJ Daily E-Mail Alert No. 1,888, January 28, 2009. The four changes announced by the CRJ on February 11 are a result of the two items announced by the Register of Copyright on January 26.

2/10. The Securities and Exchange Commission (SEC) published a notice in the Federal Register that announces, describes, recites, and sets various effective dates for, its new rules regarding the use of interactive data in financial reporting. See, Federal Register, February 10, 2009, Vol. 74, No. 26, at Pages 6775-6821.

2/10. Computer Associates (CA) announced in a release that "it has reached a settlement with Rocket Software, Inc. resolving CA’s claims of copyright infringement and trade secret misappropriation." It added that "Rocket has agreed to license technology from CA, including source code authored several years ago and related trade secrets that were the subject of the litigation."

2/6. The National Institute of Standards and Technology's (NIST) Computer Security Division released its draft [149 pages in PDF] of Special Publication 800-85A-1, titled "PIV Card Application and Middleware Interface Test Guidelines". The deadline to submit comments on this draft is February 28, 2009.

2/5. The National Institute of Standards and Technology's (NIST) Computer Security Division released its draft [209 pages in PDF] of Special Publication 800-53, Revision 3, titled "Recommended Security Controls for Federal Information Systems and Organizations". The deadline to submit comments on this draft is March 27, 2009.