4/8. The U.S. Court of Appeals (2ndCir) issued its opinion [14 pages in PDF] in Global Network Communications v. City of New York, a case regarding a municipal denial of an application for a franchise to operate public pay telephones (PPTs) on public property. The Court of Appeals affirmed the District Court's grant of summary judgment to the City of New York.

The Court of Appeals held that nothing in Section 253 requires franchising authorities to give PPT franchises to entities owned by convicted criminals with organized crime connections who use threats and intimidation to secure PPT locations.

47 U.S.C. § 253, at Subsection (a) provides that "No State or local statute or regulation, or other State or local legal requirement, may prohibit or have the effect of prohibiting the ability of any entity to provide any interstate or intrastate telecommunications service."

Subsection (c) then provides that "Nothing in this section affects the authority of a State or local government to manage the public rights-of-way or to require fair and reasonable compensation from telecommunications providers, on a competitively neutral and nondiscriminatory basis, for use of public rights-of-way on a nondiscriminatory basis, if the compensation required is publicly disclosed by such government."

The city denied the application on the basis of the applicant's connection to organized crime, and history of fraud. Global Network Communications (GNC) filed a complaint in the U.S. District Court (SDNY) alleging violation of Section 253, and federal preemption of the local franchising regime. The District Court dismissed the complaint pursuant to FRCP Rule 12(b)(6) for failure to state a claim upon which relief may be granted.

The Court of Appeals affirmed. It wrote that GNC's "CEO and sole shareholder, Ronald Massie, is an associate of the Bonnano organized crime family accused of loan sharking and money laundering through the company. Massie subsequently pleaded guilty to a federal indictment charging him with loan sharking, mail fraud, and bank fraud. He later testified that Global derived 20 to 30 percent of its business from locations that were chosen or secured by members of the Bonnano crime family. He admitted to using connections to the Bonnano crime family in order to secure PPT locations, and property owners reported that these individuals threatened and intimidated them into accepting the PPTs."

The Court reasoned that Section 253 "does not altogether deny states and localities the ability to regulate telecommunication services".

It continued that "The statutory grant of authority to ``manage the public rights-of-way´´ encompasses the right to reject an applicant on the basis of its affiliation with organized crime, especially upon a demonstrated record of operating the facilities fraudulently, or otherwise in violation of law, with reliance on organized crime to further its business interests."

It concluded that "the City's refusal to grant Global a franchise to operate on public rights-of-way on the basis of this past history is fully within the scope of the authority provided by Section 253(c)."

Moreover, "the authority under § 253(c) to collect fair and reasonable compensation from telecommunications service providers operating on City property implies authority to deny a permit to entities which have demonstrated lack of financial responsibility and have practiced fraud to evade their financial obligations."

Other companies, or their employees, that receive state or local communications licenses or franchises, have been convicted of crimes. The Court of Appeals added that the denial was "nondiscriminatory" in this case because of the "different and more serious order" of the crimes. It did not provide an explanation of this phrase.

This case is Global Network Communications, Inc. v. City of New York and City of New York Department of Information Technology and Telecommunications, U.S. Court of Appeals for the 2nd Circuit, App. Ct. No. 07-5184-cv, an appeal from the U.S. District Court for the Southern District of New York. Judge Leval wrote the opinion of the Court of Appeals, in which Judge McLaughlin and Pooler joined.

4/6. The Office of the U.S. Trade Representative (OUSTR) announced the results of its annual review of the operation and effectiveness of telecommunications trade agreements, pursuant to Section 1377 of the Omnibus Trade and Competitiveness Act of 1988.

This report addresses barriers to U.S. entities imposed by foreign governments, but not barriers to foreign entities imposed by the U.S. government.

Ron Kirk, the USTR, stated in a release that "Barriers to telecommunications services and equipment make it harder for the U.S. to compete in the in the global marketplace, and harder for us to evolve efficient and innovative communications infrastructure here at home".

PRC. The report notes the lack of transparency in the People's Republic of China (PRC). It states that "China’s longstanding effort to license 3G wireless networks has been characterized by a lack of transparency and is replete with evidence of policies favoring a domestic technology."

It continues that "China initially delayed licensing, apparently due to a desire first to see a domestic technology (TD-SCDMA) mature and then be deployed in conjunction with a restructuring plan for the government-owned operators that dominate the industry. This highlights the government's extensive involvement in the sector, and its unwillingness to let commercial judgments drive the development of the market -- often at the expense of foreign suppliers."

It adds that while the PRC has issued licenses, "persistent questions remain about how additional spectrum will be assigned, how ongoing policies to promote this domestic technology will be developed, and lack of clarity on whether new competing technologies (e.g., WiMax) and services will be authorized." (Parentheses in original.)

It adds that "Other areas in which a lack of transparency has seriously hampered foreign suppliers include the unwritten prohibition on offering 802.11 technologies (known as WiFi) on mobile handsets and lack of clarity on the scope of services foreign-affiliated value-added service suppliers are permitted to offer." (Parentheses in original.)

It also states that "as China rolls out 3G networks nationwide, U.S. companies are increasingly concerned about China’s existing prohibition on marketing mobile phones with WLAN (wireless local area network) capability such as 802.11 (also known as ``Wi-Fi´´). This current prohibition has no obvious legitimate policy justification, and MIIT’s own regulations do not appear to address the issue -- equipment approvals for this technology are simply not granted." (Parentheses in original.)

The report also raises concerns about "proposed technical regulations relating to information technology security for various IT products, including routers, smart cards, and secure databases and operating systems".

Mobile Termination Rates in Japan. The OUSTR report states that "In Japan, where the regulator does not set mobile termination rates, a proceeding is under way to reconsider that policy, given persistently high rates. In that proceeding, at least one operator has advocated introducing a ``bill and keep´´ system for compensation (whereby operators do not charge each other for terminating each others’ calls), which is widely used by U.S. mobile operators."

It states that the OUSTR "will monitor this proceeding and continue to urge the regulator to put in place a transparent system for better evaluating whether rates imposed by operators are truly reasonable." (Parentheses in original.)

The report also addresses numerous other issues in other countries, including anti-competitive practices by Telmex and Telcel in Mexico, and Singtel's failure to offer competitors access to leased lines at efficient aggregation points.

4/6. The Office of the U.S. Trade Representative (OUSTR) released a document [6 pages in PDF] titled "The Anti-Counterfeiting Trade Agreement -- Summary of Key Elements Under Discussion".

The USTR did not release the text of any proposed Anti-Counterfeiting Trade Agreement (ACTA). Rather, this just released document describes the "draft structure".

This document states that "The intended focus is on counterfeiting and piracy activities that significantly affect commercial interests, rather than on the activities of ordinary citizens."

The document's discussion of border measures states that the "Elements under discussion ... include ... a de minimis exception that could permit travelers to bring in goods for personal use". This suggests that the U.S. does not seek to have travellers' iPods searched for infringing works, or seized by customs inspectors.

The document states that Section 4 of the ACTA addresses "new technologies" and "the possible role and responsibilities of internet service providers in deterring copyright and related rights piracy over the Internet."

It adds that "No draft proposal has been tabled yet, as discussions are still focused on gathering information on the different national legal regimes to develop a common understanding on how to deal best with these issues."

However, the document does not reference the imposition of secondary liability, or limitations upon such liability. It does it reference the Supreme Court's 2005 opinion [55 pages in PDF] in MGM v. Grokster, 545 U.S. 913. See, story titled "Supreme Court Rules in MGM v. Grokster" in TLJ Daily E-Mail Alert No. 1,163, June 28, 2005. Nor does it reference the 1984 opinion in Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417.

This OUSTR document states that "The ACTA initiative aims to establish international standards for enforcing intellectual property rights in order to fight more efficiently the growing problem of counterfeiting and piracy. In particular, the ACTA is intended to establish, among the signatories, agreed standards for the enforcement of intellectual property rights that address today’s challenges by increasing international cooperation, strengthening the framework of practices that contribute to effective enforcement of intellectual property rights, and strengthening relevant enforcement measures."

It adds that the "ACTA is not intended to interfere with a signatory’s ability to respect its citizens’ fundamental rights and civil liberties, and will be consistent with the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) and will respect the Declaration on TRIPS and Public Health."

See also, stories titled "Senators Ask USTR Not to Negotiate Too Broad an ACTA" in TLJ Daily E-Mail Alert No. 1,837, October 2, 2008, "OUSTR Holds Meeting Regarding ACTA" in TLJ Daily E-Mail Alert No 1,830, September 23, 2008, and "OUSTR to Hold Meeting on Anti-Counterfeiting Trade Agreement" in TLJ Daily E-Mail Alert No 1,828, September 19, 2008.

4/8. President Obama announced his intent to nominate Rand Beers to be Under Secretary for the National Protection and Programs Directorate (NPPD) at the Department of Homeland Security (DHS). The responsibilities of this directorate include, among other things, cybersecurity, communications security, and the US-VISIT program. See, DHS release and White House press office release.

4/8. President Obama announced his intent to nominate Mary Smith to be Assistant Attorney General in charge of the Department of Justice's (DOJ) Tax Division. The Tax Division has litigation responsibilities with respect to technology and communications related tax issues. For example, during the Bush administration it continued to litigate the 26 U.S.C. § 4251 3 percent excise tax on some but not all communications services long after the Courts of Appeals held that its position was wrong. She is currently a partner in the Chicago, Illinois, office of the law firm of Schoeman Updike Kaufman & Scharf. She previously worked for the law firm of Skadden Arps. She also was an Associate Counsel to the President during the Clinton administration. See, White House press office release.

4/8. Attorney General Eric Holder announced his appointment of Marshall Jarrett to be head of the Department of Justice's (DOJ) Executive Office for United States Attorneys (EOUSA).

4/8. Attorney General Eric Holder announced his appointment of Mary Patrice Brown to be acting head of the Department of Justice's (DOJ) Office of Professional Responsibility (OPR).

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The House will not meet the week of April 6-10 or 13-17. It will next meet at 2:00 PM on April 21, 2009. See, HConRes 93.

The Senate will not meet the week of April 6-10 or 13-17. It will next meet on April 20, 2009, at 2:00 PM, at which time it may begin consideration of S 386 [LOC | WW], the "Fraud Enforcement and Recovery Act".

9:00 AM - 12:30 PM. The American Enterprise Institute (AEI) will host an event titled "Promoting Peace and Prosperity in Asia: The Taiwan Relations Act at Thirty". The speakers will be C.J. Chen (former foreign minister of the Republic of China), Arthur Brooks (AEI), John Bolton (AEI), Paul Wolfowitz (AEI), Danielle Pletka (AEI), Louisa Greve (National Endowment for Democracy), Christopher Griffin (office of Sen. Joe Lieberman (D-CT), Rupert Hammond-Chambers (U.S.-Taiwan Business Council), and Dan Blumenthal (AEI). See, notice. Location: AEI, 12t floor, 1150 17th St., NW.

Deadline to submit comments to the National Telecommunications and Information Administration (NTIA) and the Rural Utilities Service (RUS) regarding the broadband grant programs created by HR 1 [LOC | WW], the huge spending bill enacted in February, which programs are also known as the Broadband Technology Opportunities Program (BTOP). See, notice in the Federal Register, March 12, 2009, Vol. 74, No. 47, at Pages 10716-10721, and notice in the Federal Register, March 18, 2009, Vol. 74, No. 51, at Page 11531.

Deadline to submit comments to the Federal Communications Commission (FCC) in response to its Public Notice [4 pages in PDF] regarding the FCC's consultative role in implementing the broadband grants and loans provisions of HR 1, the huge spending bill enacted in February. This PN is DA 09-668 in GN Docket No. 09-40.

12:00 NOON - 2:00 PM. The DC Bar Association will host a closed event titled "Posters, Pictures and Portraits: Hot Issues Involving Copyrights in Images". The speakers will include James Astrachan (Astrachan Gunst & Thomas) and Victor Perlman (American Society of Media Photographers). The price to attend ranges from $25 to $50. See, notice. For more information, call 202-626-3463. Location: D.C. Bar Conference Center, B-1 Level, 1250 H St., NW.

2:00 - 3:30 PM. The Department of Justice's (DOJ) Antitrust Division will host a seminar conducted by Catherine de Fontenay (University of Melbourne) on her paper, co-authored with Joshua Gans, titled "Bilateral Bargaining with Externalities". This is a game theoretical paper about bargaining between agents in a network, including patent holders' negotiations with several potential licensors. 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.

12:00 NOON - 1:30 PM. The Disruptive Women in Health Care (DWINC) will host a panel discussion titled "Health eGaming, Healthy Patients". The topic is the use of video games to inform patients about health topics, such as diabetes, nutrition, and weight loss. The speakers will include former Rep. Nancy Johnson (R-CT). Lunch will be served. RSVP to 202-263-2926. Location: Room B339, Rayburn Building, Capitol Hill.

2:30 PM. The Federal Trade Commission's (FTC) Bureau of Economics will host an untitled seminar by Ken Hendricks (University of Texas). He is an economist who has written extensively about competition, collusion, mergers, the Hirschmann Herfindahl Index (HHI), the computational bilateral oligopoly (CBO) model, and government merger reviews. See, paper [PDF] titled "Evaluating the Likely Effects of Horizontal and Vertical Mergers". He has also written about product discovery in the market for recorded music. See, paper [PDF] titled "Information and the Skewness of Music Sales". Location: FTC, New Jersey Ave. Building, Room 4100.

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in NCTA v. FCC, App. Ct. No. 08-1016 and 08-1017. Judges Tatel, Garland and Silberman will preside. This is the challenge by the NCTA and apartment owners to the FCC's MDU order, that asserts regulatory authority over the content of contracts negotiated by owners of multiple dwelling units (MDUs), such as apartment buildings, and cable companies. The FCC asserted authority under Subsection 628(b) of the Communications Act, which is codified at 47 U.S.C. § 548(b). The order, adopted on October 31, 2007, is FCC 07-189 in MB Docket No. 07-51. See, stories titled "FCC Adopts R&O Abrogating Contracts Between MDU Owners and Cable Companies" and "Commentary on FCC's R&O Regarding MDU Owners and Cable Companies" in TLJ Daily E-Mail Alert No. 1,669, November 5, 2007. See, FCC's brief [68 pages in PDF]. Location: Courtroom 11, 333 Constitution Ave.

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in Alvin Lou Media, Inc. v. FCC, App. Ct. No. 08-1067. Judges Ginsburg, Rogers and Kavanaugh will preside. See, FCC's brief [80 pages in PDF]. Location: 333 Constitution Ave.

Deadline to submit initial comments to the The Federal Communications Commission (FCC) in response to its Public Notice [4 pages in PDF] regarding its implementation of Subsections 103(b) and 103(c)(1) of the Broadband Data Improvement Act (BDIA). President Bush signed S 1492 [LOC | WW], the BDIA, into law on October 10, 2008. It is now Public Law No. 110-385.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its notice of proposed rulemaking [25 pages in PDF] regarding extending until June 30, 2010, the freeze of Part 36 category relationships and jurisdictional cost allocation factors used in jurisdictional separations. This freeze is set to expire on June 30, 2009. This NPRM is FCC 09-24 in CC Docket No. 80-286. See, notice in the Federal Register, April 3, 2009, Vol. 74, No. 63, at Pages 15236-15239.

The House will not meet.

12:00 NOON - 2:00 PM. The Federal Communications Bar Association's (FCBA) Intellectual Property and Legislative Practice Committees, and the DC Chapter of the Copyright Society of the U.S.A. will host a brown bag lunch titled "Communications and Copyright in the 111th Congress". The FCBA has a history of excluding persons from its lunches. Location: NCTA, 25 Massachusetts Ave., NW.

6:00 - 9:15 PM. The DC Bar Association will host the first part of a three part series titled "Preserving Intellectual Property Rights in Goverment Contracts". The speakers will include David Bloch (Winston & Strawn), Richard Gray (Department of Defense), John Lucas (Department of Energy), and James McEwen (Stein McEwen). The price to attend ranges from $89 to $129 per part, or $169 to $299 for the series. See, notice. This event qualifies for continuing legal education credits. The DC Bar Association has a history of excluding persons from its events. For more information, call 202-626-3488. Location: D.C. Bar Conference Center, B-1 Level, 1250 H St., NW.

4/9. The U.S. Court of Appeals (9thCir) issued an order [PDF] in Linkline v. Pacific Bell, vacating its September 11, 2007, opinion, and remanding to the District Court. On February 25, 2009, the Supreme Court issued its opinion [24 pages in PDF] reversing the judgment of the Court of Appeals. See, stories titled "Supreme Court Reverses in Pacific Bell v. Linkline", "Supreme Court: There Is Robust Competition in the Broadband Market", and "Commentary: Impact of Pacific Bell v. LinkLine" in TLJ Daily E-Mail Alert No. 1,907, February 27, 2009. The DC Bar Association will host a panel discussion titled "Alleged Anticompetitive Wholesale and Retail Pricing After linkLine" on May 5, 2009. See, TLJ calendar.

4/9. The U.S. Court of Appeals (5thCir) issued its opinion [65 pages in PDF] in Lormand v. US Unwired, a 10(b)(5) putative class action dating back to events that occurred in 2000-2002, and US Unwired's affiliate relationship with Sprint. The Court of Appeals affirmed in part and reversed in part the District Court dismissal for failure to state a claim pursuant to FRCP Rule 12(b)(6) and the pleading requirements of the Private Securities Litigation Reform Act (PSLRA). This case is Billy Lormand v. US Unwired, Inc., et al., U.S. Court of Appeals for the 5th Circuit, App. Ct. No. 07-30106, an appeal from the U.S. District Court for the Eastern District of Louisiana.

4/9. Rep. Henry Waxman (D-CA) and Rep. Rick Boucher (D-VA) sent a letter [PDF] to Best Buy and other consumer electronics retailers and manufacturers that propounds interrogatories regarding the supply of coupon eligible converter boxes. The two are the Chairman of the House Commerce Committee (HCC), and its Subcommittee on Communications, Technology and the Internet.

4/9. The Progress & Freedom Foundation announced that it will not hold its annual Aspen Conference this August. This would have been the 15th conference. Ken Ferree, head of the PFF, stated in a release that "In light of the current economic environment, we do not think it prudent to spend our supporters' money, or ask others to spend scarce dollars, on a lavish conference at a remote facility. We intend to reschedule the event when economic conditions improve, and in the interim use our resources as efficiently as possible on local events and publications."

4/9. Ron Kirk, head of the Office of the U.S. Trade Representative (OUSTR), stated in a release that the "USTR is working with our trading partners and with Congress to open markets to American goods and services". One obstacle to OUSTR success in this endeavor is that the Congress and President Obama are working to close certain U.S. markets to foreign goods and services.

4/8. The Department of Commerce's (DOC) National Telecommunications and Information Administration (NTIA) published a notice in the Federal Register that announces a new deadline for submitting applications for grants under the Public Telecommunications Facilities Program (PTFP). The old deadline was December 18, 2008. The new deadline is 5:00 PM on May 18, 2009. See, Federal Register, April 8, 2009, Vol. 74, No. 66, at Page 15943. The Omnibus Appropriations Act, 2009, appropriated $18 Million for the PTFP. Pub. L. No. 111-8.

4/7. The Securities and Exchange Commission (SEC) published a notice in the Federal Register that announces, describes, recites, and sets the effective date (April 13, 2009) for, extensive "technical corrections" to its rules requiring certain public companies to provide financial information to the SEC in interactive data format using the eXtensible Business Reporting Language (XBRL). See, Federal Register, April 7, 2009, Vol. 74, No. 65, at Pages 15666-15669. The SEC published these rules in a notice in the Federal Register, February 10, 2009, Vol. 74, No. 26, at Pages 6775-6821.

4/3. The U.S. Court of Appeals (8thCir) issued its opinion [12 pages in PDF] in Cedar Rapids Television v. MCC Iowa, affirming the judgment of the District Court. This is a case regarding termination of a retransmission consent agreement between a television broadcaster and a cable company, Mediacom. This case is Cedar Rapids Television Company v. MCC Iowa LLC and MCC Illinois LLC, U.S. Court of Appeals for the 10th Circuit, App. Ct. No. 07-3899, an appeal from the U.S. District Court for the Northern District of Iowa, Judge Linda Reade presiding.

4/3. The Department of Justice's (DOJ) Antitrust Division published a notice in the Federal Register, pursuant to the National Cooperative Research and Production Act of 1993, of the National Institute of Standards and Technology (NIST) Joint Venture on Cyber-Enabled Smart Infrastructure. This notice identifies the parties to, and objectives of, this venture. See, Federal Register, April 3, 2009, Vol. 74, No. 63, at Page 15304.

4/2. The U.S. Court of Appeals (9thCir) issued its opinion [23 pages in PDF] in Dream Games of Arizona v. PC Onsite, a copyright infringement case involving an electronic video bingo game. The Court of Appeals affirmed the judgment of the District Court in its entirety. The plaintiffs, including Dream Games, obtained a judgment of direct infringement, injunctive relief, and an award of statutory damages of $25,000. The opinion contains some discussion of secondary liability, vicarious liability, contributory liability, and inducement, and the 9th Circuit's 2007 opinion in Perfect 10 v. Visa, 494 F.3d 788. However, the Court of Appeals held that Dream Games cannot argue secondary liability on appeal, because it did not plead it in its complaint. This case is Dream Games of Arizona, Inc., et al. v. PC Onsite, et al., U.S. Court of Appeals for the 9th Circuit, App. Ct. No. 07-15919, an appeal from the U.S. District Court for the District of Arizona, D.C. No. CV-03-00433-PHX-ROS.