4/1. On March 31, 2009, the Senate Judiciary Committee (SJC) held an executive business meeting at which it continued its mark up of S 515 [LOC | WW], the "Patent Reform Act of 2009".

It adopted an amendment [6 pages in PDF] to establish a trial telework program at the U.S. Patent and Trademark Office (USPTO), and to amend 35 U.S.C. § 202(c)(7)(E)(i), regarding funding agreements for the operation of a government owned and contractor operated facility to reinvest licensing royalties for scientific research, development and education.

The SJC is scheduled to continue its mark up of this bill on April 2, 2009.

Sen. Patrick Leahy (D-VT) announced in a release on April 1 that Sen. Leahy, Sen. Arlen Specter (R-PA), and Sen. Dianne Feinstein (D-CA) "have reached an agreement on several key issues in the debate over patent reform", and will offer an amendment [13 pages in PDF] at the April 2 meeting that reflects this agreement.

This amendment addresses the most controversial issue, damages, as well as inter partes reexamination, best mode, venue, willfulness, and other issues.

3/31. The Federal Communications Commission (FCC) released a Public Notice [4 pages in PDF] that announces that it seeks public comments regarding its implementation of Subsections 103(b) and 103(c)(1) of the Broadband Data Improvement Act (BDIA).

On October 10, 2008, President Bush signed into law S 1492 [LOC | WW], the BDIA. It is now Public Law No. 110-385. Subsections 103(b) and (c)(1) impose broadband data collection and reporting obligations.

103(b) requires the FCC to "include information comparing the extent of broadband service capability (including data transmission speeds and price for broadband service capability) in a total of 75 communities in at least 25 countries abroad for each of the data rate benchmarks for broadband service utilized by the Commission to reflect different speed tiers". (Parentheses in original.)

103(c)(1) requires the FCC to "conduct and make public periodic surveys of consumers in urban, suburban, and rural areas in the large business, small business, and residential consumer markets to determine" to determine "types of technology used", prices, "actual data transmission speeds", and other enumerated things.

Initial comments are due by April 10, 2009. Reply comments are due by April 17, 2009. This item is DA 09-741 and GN Docket No. 09-47.

3/31. The House Appropriations Committee's (HAC) Subcommittee on Financial Services held a hearing on the Federal Trade Commission (FTC). See, FTC's prepared testimony [14 pages in PDF]. This hearing focused on financial services.

The FTC wrote that it wants "additional authority", including the power "to obtain civil penalties for unfair or deceptive acts and practices relating to all financial services and authorize the agency to bring suit in its own right in federal court to obtain civil penalties". The FTC has long argued for civil penalty authority.

The FTC also wrote that its wants more money. It argued that while it "has only about 1,100 full-time equivalents", the "demands placed on the agency have continued to grow with the advent of the Internet and e-commerce, and a variety of significant new laws and regulations that the FTC is charged, at least in part, with implementing and enforcing, such as the CAN-SPAM Act, the Fair and Accurate Credit Transactions Act, the Do Not Call provisions of the Telemarketing Sales Rule, the Children’s Online Privacy Protection Act, and the Gramm-Leach-Bliley Act."

The FTC added that its "consumer protection matters" also include "privacy and data security", spyware, and advertising practices for violent video games.

It concluded that "the size of the agency has not kept pace with the growth in the population and the sophistication of the marketplace".

Federal agencies rarely ask the Congress to give them less power and money.

3/31. The Office of the U.S. Trade Representative (USTR) released its annual report [547 pages in PDF] titled "2009 National Trade Estimate Report on Foreign Trade Barriers (NTE)".

This report does not report on any of the barriers to trade imposed by the U.S.

The rest of this article highlights some of the key technology and communications related findings of the report.

People's Republic of China. The report states that "China's implementation of its WTO commitments has led to significant increases in U.S.-China trade, including U.S. exports to China, while deepening China’s integration into the international trading system and facilitating and strengthening the rule of law and economic reforms that China began nearly three decades ago. However, more still needs to be done."

It notes that there is a pending WTO challenge to the PRC's "market access restrictions affecting the importation and distribution of copyright-intensive products such as books, newspapers, journals, theatrical films, DVDs, and music. The United States expects the WTO panel to make its decision in 2009."

The report also notes that recent talks between the US and PRC have made progress, for example, in the PRC's agreeing "to delay publication of final rules on information security certification that would have potentially barred several types of U.S. high-technology products from China’s market", and confirming that "state-owned enterprises would base their software purchases solely on market terms without Chinese government intervention or directives favoring domestic software".

However, it continues that the "USTR is concerned that since 2006, China is trending toward a less open trade regime with diverse new measures that signal new restrictions on market access and foreign investment in China. In 2008, U.S. stakeholders have pointed to further evidence of such a trend, including the setting of unique Chinese national standards, the tremendous expansion of the test market for China’s home-grown 3G telecommunications standard, China's government procurement practices ..."

The report also finds that "the lack of effective IPR enforcement remains a major challenge, as counterfeiting and piracy in China remain at unacceptably high levels and cause serious economic harm to U.S. stakeholders across the economy. U.S. industries hesitate to market leading edge technology in China due to the high probability of piracy."

Japan. The report urges Japan to make changes to its regulatory environment affecting information and communications technologies. U.S. agencies and the Congress are currently struggling to address similar issues within the U.S.

For example, the report also urges Japan to make changes to its universal service program. U.S. programs are outdated, unsustainable, irrational, and incent inefficiency. The Congress and the Federal Communications Commission (FCC) have long been studying the issue.

The report also states that "It is unclear whether Japanese regulations permit non-bank payment services for online transactions. The lack of clear regulations in this area impedes the ability of U.S. nonbank payment services providers to offer their services in Japan."

The report states that in 2008 the US "continued to urge that Japan ensure fair market opportunities for emerging technologies and business models, develop a regulatory framework for converged and Internet-enabled services, and strengthen competitive safeguards on dominant carriers. The U.S. Government also continues to request that Japan improve transparency in rulemaking and ensure the impartiality of its regulatory decision making, including by abolishing the legal requirement that the government own one-third of the dominant carrier," NTT.

The report also states that "Japanese laws and regulations do not prevent NTT's regional carriers from imposing high rates and onerous conditions on their competitors for interconnection. Japan's Ministry of Internal Affairs and Communications (MIC) made further revisions to its Rules for Interconnection Charges, resulting in modest reductions in interconnection rates, which fell another 3.4 percent in April 2008, although these rates are still high by international standards. The U.S. Government has encouraged MIC to ensure that reasonable interconnection terms and conditions and competitive rates are established for such facilities, particularly as NTT continues deployment of its Internet Protocol (IP) based Next Generation Network replacing the analog network."

The report also addresses wireless licenses and spectrum auctions, mobile termination, protection of intellectual property rights, privacy regulations, and government IT procurement.

Taiwan. The report states that "IPR protection continues to be an important issue in the United States-Taiwan trade relationship." The report noted "Taiwan's continuing efforts to improve enforcement of IPR", and the USTR's removal of Taiwan from the Special 301 Watch List in January.

However, the report states that the US is concerned with "tthe availability of counterfeit pharmaceuticals in Taiwan, infringement of copyrighted material on the Internet, illegal textbook copying on and around university campuses, and inadequate protection for the packaging, configuration, and outward appearance of products".

It also states that "Existing fixed-line operators report that they still face difficulties in negotiating reasonable interconnection arrangements at technically feasible points in the network of the dominant carrier, Chunghwa Telecom (CHT). The Taiwan government maintains a 34 percent ownership share of CHT following partial privatization of the company in 2005 to 2006."

3/25. The Department of Justice's (DOJ) Antitrust Division released a set of documents regarding electronic document production in antitrust merger reviews.

The DOJ released a paper titled "E-Discovery Initiatives at the Antitrust Division" by the Tracy Greer, an attorney employed by the Antitrust Division. This paper provides guidance to companies on complying with electronic discovery demands, but adds that "The views presented in this paper are my own, they do not reflect those of the Department of Justice or the Antitrust Division."

The DOJ also released a template for an electronic production letter, concerning production in response to a Second Request. It also released a document titled "Questions about Electronic Systems and Back-up/Archiving Policies", to be attached to the production letter.

The DOJ also released a template for a letter regarding DOJ access via the internet to intranets and databases. It provides for simultaneous access by DOJ employees, on the same basis that access is allowed to company employees. It also provides for saving and printing. It also prohibits tracking.

Finally, the DOJ released a document that includes two items titled "Summation Database Specifications" and "Summation Database Specifications".

4/1. the U.S. Court of Appeals (FedCir) issued its opinion [18 pages in PDF] in Digen v. Third Wave, a patent infringement case also involving an antitrust counterclaim alleging exclusive dealing arrangements. The Court of Appeals affirmed the District Court's judgment of non-infringement on the patent claim, and judgment for the counterclaim defendant on the antitrust claim. It designated its opinion nonprecedential. This case is Digene Corporation v. Third Wave Technologies, Inc., U.S. Court of Appeals for the Federal Circuit, App. Ct. Nos. 2008-1242 and 2008-1243, appeals from the U.S. District Court for the Western District of Wisconsin, D.C. No. 07-CV-22, Judge Barbara Crabb presiding.

3/31. The Department of Justice's (DOJ) Antitrust Division released a discussion paper titled "Merger Review of Firms in Financial Distress". The authors are the DOJ's Ken Heyer and Sheldon Kimmel. The paper adds that "The views expressed herein are entirely their own and are not purported to reflect those of the Department."

3/31. A grand jury of the U.S. District Court (NDCal) returned an indictment that charges Sakae Someya with violation of Sherman Act, at 15 U.S.C. § 1, in connection with his alleged price fixing of Thin Film Transistor Liquid Crystal Display (TFT-LCD) panels sold to Dell. The is another in a series of actions regarding LCD price fixing. See, Department of Justice (DOJ) release, and stories titled "DOJ Brings Another LCD Price Fixing Action" in TLJ Daily E-Mail Alert No. 1,913, March 16, 2009;  "DOJ Obtains TFT-LCD Price Fixing Indictment" in TLJ Daily E-Mail Alert No. 1,890, February 3, 2009; and "DOJ Brings and Settles Criminal Price Fixing Actions Against LCD Makers" in TLJ Daily E-Mail Alert No. 1,855, November 11, 2008.

3/31. The Securities and Exchange Commission (SEC) filed a civil complaint [18 pages in PDF] in the U.S. District Court (SDNY) against Take Two Interactive Software, alleging violation of federal securities laws in connection with backdating of stock options. The SEC and Take Two simultaneously entered into a settlement agreement that provides for a $3 Million civil penalty, but contains no admission of wrongdoing. The SEC previously brought and settled complaints against individuals. See, SEC release. This case is SEC v. Take Two Interactive Software, Inc., U.S. District Court for the Southern District of New York, D.C. No. 09 CIV 3113.

3/31. The U.S. Court of Appeals (2ndCir) issued another opinion [11 pages in PDF] in Motorola v. Uzan. The Court of Appeals affirmed the District Court's denial of defendants' motion for post judgment relief under Rule 60(b) of the Federal Rules of Civil Procedure. The Court of Appeals that Rule 60(b) provides for equitable relief, too which the defendants are not entitled because they do not have clean hands. For more information about this litigation, see stories titled "2nd Circuit Dismisses Uzan Appeal" in TLJ Daily E-Mail Alert No. 1,228, October 6, 2005; "Supreme Court Denies Certiorari in Uzan v. Motorola" in TLJ Daily E-Mail Alert No. 1,137, May 17, 2005; "2nd Circuit Rules in Motorola v. Uzan" in TLJ Daily E-Mail Alert No. 1,008, November 1, 2004; "Judge Awards Motorola $4,265,793,811.32 From Turkish Telecom Deadbeats" in TLJ Daily E-Mail Alert No. 709, August 1, 2003; and "Motorola & Nokia Sue Turkish Cellular Company for RICO Violations and Computer Hacking" in TLJ Daily E-Mail Alert No. 357, January 30, 2002. This case is Motorola Credit Corporation and Nokia Corporation v. Kemal Uzan, et al., U.S. Court of Appeals for the 2nd Circuit, App. Ct. No. 07-2076-cv, an appeal from the U.S. District Court for the Southern District of New York.

3/31. Disney issued a release that states that "Disney Media Networks and YouTube today announced an agreement which includes the launch of multiple ad-supported channels featuring short-form content from ESPN and the Disney/ABC Television Group. Under the terms of the agreement, Disney Media Networks will have the option to sell their own advertising inventory within the Disney/ABC and ESPN channels." The release adds that "Previews of what will be available upon official launch can be viewed" the YouTube web site. Also, "the ESPN Video Player will be integrated into ESPN's channel on YouTube and will anchor ... sports content and highlights on YouTube. ESPN will also make additional short-form content available through YouTube's player. ESPN content that is available on the ESPN channel and player will not contain long-form content from its linear networks."

This issue contains the following items:
 • Senate Judiciary Committee Continues Mark Up of Patent Bill
 • FCC Seeks Comments on Broadband Data Collection and Survey
 • FCC Releases Agenda for April 8 Meeting
 • FTC Tells Congress It Wants More Power and Money
 • USTR Releases Annual Trade Report
 • Antitrust Division Releases Information Regarding E-Discovery

4/1. The Federal Communications Commission (FCC) released an updated agenda [PDF] for its event titled "Open Meeting", scheduled for April 8, 2009.

This agenda includes adoption of a Supplemental Notice of Inquiry NOI) requesting information for an annual report to Congress on the status of competition in the market for the delivery of video programming. The FCC is behind in submitting these statutorily mandated annual reports. This proceeding is MB Docket No. 07-269.

Second, the FCC is scheduled to adopt a Report and Order (R&O) and Fourth Further Notice of Proposed Rule Making (NPRM) regarding data collection pertaining to minority and female broadcast ownership.

Third, the FCC is scheduled to adopt an NPRM regarding its policies and procedures for allocation and assignment of broadcast frequencies in the commercial AM and FM and non-commercial FM services.

Fourth, the FCC is scheduled to adopt a NOI requesting comments to assist it in developing a national broadband plan, as required by Section 6001(k) of HR 1, the huge spending bill passed by the Congress in February.

Finally, the FCC is scheduled to adopt a R&O and Further NPRM regarding amendments to Part 90 its rules. This pertains to the FCC's NPRM adopted on May 9, 2007, and released on May 14, 2007. It is FCC 07-85 in WP Docket No. 07-100. It concerns rules that govern the 4.9 GHz band. See also, notice in the Federal Register, June 13, 2007, Vol. 72, No. 113, at Pages 32582-32589.

The House will meet at 10:00 AM for legislative business. See, Rep. Hoyer's schedule for the week of March 30.

The Senate will meet at 10:00 AM. It will resume resume consideration of SConRes 13, the Senate Budget Resolution, Fiscal Year 2010.

10:00 AM. The House Homeland Security Committee's (HHSC) Subcommittee on Intelligence, Information Sharing and Terrorism Risk Assessment Hearing will hold a hearing titled "The Future of Fusion Centers: Potential Promise and Dangers". The witnesses will be Leroy Baca (Los Angeles County Sheriff’s Department), Robert Riegle (DHS), Russell Porter (Iowa Intelligence Fusion Center), John Bateman (Texas Department of Public Safety), Bruce Fein (The Litchfield Group), Ned Norris (Tohono O’odham Nation), David Gersten (DHS). The DHS's December 11, 2008, report [PDF] titled "Privacy Impact Assessment for the Department of Homeland Security State, Local, and Regional Fusion Center Initiative" identified a number of risks for privacy, including data mining, inaccurate or incomplete information, participation of the private sector, and mission creep. The HHSC will webcast this event. Location: Room 311, Cannon Building.

2:30 PM. The Senate Judiciary Committee (SJC) may hold a hastily scheduled hearing on the nominations of Judge David Hamilton to be a Judge of the U.S. Court of Appeals (7thCir) and Robert Weich to be Assistant Attorney General in charge of the Office of Legislative Affairs. See, notice. The SJC will webcast this event. Location: Room 226, Dirksen Building.

Planned implementation date of the Copyright Office's (CO) new 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.

Day one of a three day event hosted by the National Cable and Telecommunications Association (NCTA) titled "Cable Show". Location: Washington Convention Center (WCC).

Day one of a three day event hosted by the American Intellectual Property Law Association (AIPLA) titled "Legal Secretaries and Administrators Conference". See, conference brochure [PDF]. Location: Westin Alexandria Hotel, Alexandria, VA.

Deadline to submit reply comments to the Federal Communications Commission (FCC) regarding competitive bidding procedures for Auction 79. This is proceeding is AU Docket No. 09-21 (122 FM broadcast construction permits). See, February 27, 2009, Public Notice (DA 09-422), and notice in the Federal Register, March 11, 2009, Vol. 74, No. 46, at Pages 10578-10581.

The House will meet at 10:00 AM for legislative business. The schedule for the week includes consideration of HR 985, [LOC | WW], the "Free Flow of Information Act of 2009". See, Rep. Hoyer's schedule for the week of March 30.

9:30 AM. The House Commerce Committee's (HCC) Subcommittee on Communications, Technology, and the Internet will hold a hearing titled, "Oversight of the American Recovery and Reinvestment Act of 2009: Broadband". See, notice. Location: Room 2322 Rayburn Building.

10:00 AM. 10:00 AM. The House Homeland Security Committee (HHSC) will hold a hearing titled "Homeland Security Policymaking:  HSC at a Crossroads and Presidential Study Directive 1". The witnesses will be Frances Townsend (former homeland security and counterterrorism advisor to President Bush), Kenneth Wainstein (O'Melveny & Myers, former AAG in charge of the DOJ's NSD, and former advisor to Bush), Philip Palin (National Institute for Strategic Preparedness), Bruce Hoffman (Georgetown University), Tom Frazier (Major Cities Chiefs Association). The HHSC will webcast this event. Location: Room 311, Cannon Building.

10:00 AM. The Senate Judiciary Committee (SJC) will hold an executive business meeting. It will continue its mark up of S 515 [LOC | WW], the "Patent Reform Act of 2009". See, notice. Location: Room 226, Dirksen Building.

1:00 PM. The House Foreign Affairs Committee's (HFAC) Subcommittee on Terrorism, Nonproliferation and Trade will hold a hearing titled "Export Controls on Satellite Technology". The witnesses will be Larry Wortzel (U.S. - China Economic and Security Review Commission), Pierre Chao (Center for Strategic and International Studies), and Patricia Cooper (Satellite Industry Association). See, notice. Location: Room 2175, Rayburn Building.

2:00 - 4:00 PM. The House Intelligence Committee (HIC) will hold a closed hearing titled "SIGINT". See, notice. Location: Room HVC-304.

Day two of a three day event hosted by the National Cable and Telecommunications Association (NCTA) titled "Cable Show". Location: Washington Convention Center.

Day two of a three day event hosted by the American Intellectual Property Law Association (AIPLA) titled "Legal Secretaries and Administrators Conference". See, conference brochure [PDF]. Location: Westin Alexandria Hotel, Alexandria, VA.

The House will meet at 10:00 AM for legislative business. See, Rep. Hoyer's schedule for the week of March 30.

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in Council Tree Communications, Inc. v. FCC, App. Ct. No. 07-1454. Judges Brown, Griffith and Silberman will preside. This is one of several cases pertaining to the FCC's eligibility standards for bidding credits for designated entities in spectrum auctions. In this case Council Tree challenges the FCC's 700 MHz auction. See, FCC's brief [57 pages in PDF]. Location: 333 Constitution Ave.

Day three of a three day event hosted by the National Cable and Telecommunications Association (NCTA) titled "Cable Show". Location: Washington Convention Center.

Day three of a three day event hosted by the American Intellectual Property Law Association (AIPLA) titled "Legal Secretaries and Administrators Conference". See, conference brochure [PDF]. Location: Westin Alexandria Hotel, Alexandria, VA.

Deadline to submit applications to testify at the Copyright Office's (CO) hearings regarding its triennial DMCA rulemaking proceeding on possible exemptions to the prohibition against circumvention of technological measures that control access to copyrighted works. The hearings will be held on May 1, 2009, at Stanford law school, in Palo Alto, California, and on May 6-8, 2009, at the CO in Washington DC. See, notice in the Federal Register, March 9, 2009, Vol. 74, No. 44, at Pages 10096-10097. See also, story titled "Copyright Office to Hold Hearings on DMCA Exemptions" in TLJ Daily E-Mail Alert No. 1,911, March 10, 2009.

The House will not meet the week of April 6-10 or 13-17.

8:30 AM - 5:00 PM. Day one of a two day meeting of the Judicial Conference of the United States' Advisory Committee on Rules of Criminal Procedure. This meeting is open to the public for observation, but not participation. See, notice in the Federal Register, January 26, 2009, Vol. 74, No. 15, at Page 4459. Location: Thurgood Marshall Federal Judiciary Building, One Columbus Circle, NE.

2:00 - 4:00 PM. The Department of Transportation's (DOT) Intelligent Transportation Systems Program Advisory Committee (ITSPAC) will meet. See, notice in the Federal Register, March 12, 2009, Vol. 74, No. 47, at Pages 10800-10801. Location: DOT, Conference Room 2, West Building, 1200 New Jersey Ave., SE.

The U.S. Patent and Trademark Office (USPTO) and others will host an event titled "USPTO Design Day 2009". See, notice. Location: USPTO, Madison Auditorium, Alexandria, VA.

8:30 AM - 5:00 PM. Day two of a two day meeting of the Judicial Conference of the United States' Advisory Committee on Rules of Criminal Procedure. This meeting is open to the public for observation, but not participation. See, notice in the Federal Register, January 26, 2009, Vol. 74, No. 15, at Page 4459. Location: Thurgood Marshall Federal Judiciary Building, One Columbus Circle, NE.

2:00 - 3:30 PM. The Department of Justice's (DOJ) Antitrust Division will host a seminar conducted by Yongmin Chen (University of Colorado at Boulder) and David Sappington (University of Florida) on their paper [33 pages in PDF] titled "Exclusive Contracts, Innovation, and Welfare". This is a theoretical paper that also addresses AMD, Intel and microprocessor chips. Sappington worked at the FCC during the Chairmanship of Michael Powell. To request permission to attend, contact Patrick Greenlee at 202-307-3745 or atr dot eag at usdoj dot gov. Location: Bicentennial Building, 600 E St., NW.

The Federal Communications Commission (FCC) may hold an event titled "Open Meeting". Location: FCC, Commission Meeting Room (Room TW-C305), 445 12th St., SW.

10:00 AM. The Securities and Exchange Commission (SEC) will host an event titled "Open Meeting". See, agenda. Location: SEC, 100 F St., NE.

4/1. David Wales, acting Director of the Federal Trade Commission's (FTC) Bureau of Competition, will leave the FTC in May. See, FTC release.

3/31. President Obama nominated Thomas Perez to be Assistant Attorney General in charge of the Department of Justice's (DOJ) Civil Rights Division (CRD). Obama previously announced his intent to make this nomination. See, White House news office release.

3/31. President Obama nominated Lawrence Strickling to be Assistant Secretary of Commerce for Communications and Information, that is, head of the National Telecommunications and Information Administration (NTIA). Obama previously announced his intent to make this nomination. See, White House news office release.

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