Farrell to Lead FTC Bureau of Economics
4/14. Federal Trade Commission (FTC)
Chairman Jonathan Liebowitz named Joseph
Farrell Director of the FTC's Bureau of Economics (BOE). He
was a professor at UC Berkeley.
He is also a former Chief Economist for the Department of Justice's
(DOJ) Antitrust Division, and a
former Chief Economist for the Federal Communications Commission (FCC).
He has also consulted for Charles River
Associates. See, FTC bio.
The CRA web site states that "Our roots lie in US antitrust law.
Since our work on behalf of IBM in the 1970s, we have worked on many of
the most important government and private antitrust suits on record,
including IBM, Kodak, Microsoft, Visa-Mastercard, and Weyerhaeuser".
The CRA also states that "Our staff and senior consultants have
been involved in computer industry matters before competition authorities
around the world, among them: the US Department of Justice, the US
Federal Trade Commission, the European Commission, and the competition
authorities of EU member states."
The CRA adds that "Our clients include television broadcasters
and networks, cable operators and program services, telephone service
suppliers, international communications carriers, Internet service
providers, providers of wireless services, and regulatory agencies at all
Farrell is the co-author, with Carl Shapiro (UC Berkeley), of the 2008
[PDF] titled "Antitrust Evaluation of Horizontal Mergers: An
Economic Alternative to Market Definition".
They wrote in this paper that "Under current antitrust policy,
the government can establish a presumption that a proposed horizontal
merger will harm competition by defining the relevant market and showing
that the merger will lead to a substantial increase in concentration in
that market. However, this approach can perform poorly in markets for
differentiated products, where market boundaries are unclear and the
proximity of the products sold by the merging firms is a key determinant
of the merger's effect on competition. Our test looks for upward pricing
pressure (UPP) resulting from the merger."
They wrote that the current method of analysis does not work well for
"computer hardware and software, and information content (magazines,
newspapers, music, video programming)". (Parentheses in original.)
For example, "When Amazon.com teamed up with Borders on-line, was
the relevant market on-line book retailing or all book retailing?"
Recently, the FTC floundered in federal court when it attempted to
defend its argument that there is such a market as "premium natural
and organic supermarkets". See, story titled "DC Circuit
Reverses in FTC v. Whole Foods" in TLJ Daily
E-Mail Alert No. 1,802, July 29, 2008. (On November 21, 2008, the
Court of Appeals issued a revised
opinion [65 pages in PDF].)
Similarly, the DOJ failed in its attempt to block the merger of Oracle
and PeopleSoft, when the District Court rejected its market definition.
See, stories titled "Antitrust Division Sues Oracle to Enjoin Its
Proposed Acquisition of PeopleSoft" in TLJ Daily
E-Mail Alert No. 846, March 1, 2004, and "DOJ Loses Oracle
Case" in TLJ
Daily E-Mail Alert No. 974, September 10, 2004.
Farrell is also the co-author, with Philip Weiser, of the 2003 paper
[56 pages in PDF] titled "Modularity, Vertical Integration, and Open
Access Policies: Towards a Convergence of Antitrust and Regulation in the
Former FCC Chairman Michael Powell discussed this paper in a 2004 speech
[6 pages in PDF]. See, story titled "Powell Opposes Regulations to
Impose Broadband Network Neutrality" in TLJ Daily
E-Mail Alert No. 833, February 10, 2004.
Farrell is also one for four co-authors of the 2007 paper
titled "Standard Setting, Patents, and Hold-Up". It discusses,
among other things, the FTC's 2006 order that concluded that Rambus
violated antitrust law.
They wrote that economic analysis suggests that "efficiency,
including efficient rewards for innovation, may be well served by
antitrust enforcement that goes beyond an enforcement mechanism for SSO
However, on April 22, 2008, the U.S.
Court of Appeals (DCCir) issued its opinion
[24 pages in PDF] setting aside the FTC's order concluding that Rambus
violated Section 2 of the Sherman Act and Section 5 of the FTC Act.
Farrell is also the co-author, with Tim Simcoe (University of
Toronto), of the 2009 paper
[PDF] titled "Choosing the Rules for Consensus
See also, story titled "FTC Writes Rules to Bolster Power of
Antitrust Regulators" in TLJ Daily
E-Mail Alert No. 1,882, January 13, 2009.
|Liebowitz Picks DeSanti to Lead FTC Office of Policy Planning
4/14. Federal Trade Commission (FTC)
Liebowitz named Susan
DeSanti Director of Policy Planning at the FTC. She worked at the FTC
for 15 years, including as head of the Office of Policy Planning,
before joining the Washington DC office of the law firm of Sonnenschein Nath & Rosenthal.
While at the FTC she was involved in drafting the FTC's 2003 report [PDF]
titled "To Promote Innovation: The Proper Balance of Competition and
Patent Law and Policy". See, story titled "FTC Releases Report
on Competition and Patent Law" in TLJ Daily
E-Mail Alert No. 768, October 29, 2003.
She was also involved in the drafting of the April 2000 guidelines
[PDF] titled "Antitrust Guidelines for Collaborations among
Competitors". She stated on November 14, 2000, that "I will
work at MacDonalds before I work on another guidelines". See, transcript
Daily E-Mail Alert No. 21, November 15, 2000.
|Courts of Appeals
Address Reliance Upon Government Databases
4/13. Two federal appeals courts issued opinions in obscure cases
regarding government reliance upon information in government databases,
without according the individuals whose rights are thereby affected the
opportunity to challenge the veracity of the information in the
databases. One individual prevailed on appeal, and the other lost.
Unlike the 9th Circuit's recent opinion in Humphries v. County
of Los Angeles, where individuals brought a due process challenge
to the government's refusal to establish a procedure for challenging
erroneous information, these two cases involve individuals who did not
seek to have the databases corrected. Rather, they challenged the courts'
reliance upon data, without being afforded the opportunity to contest the
veracity of that data. In US v. Felix, the Court of Appeals
held that the government could rely upon data in a database without
proving its veracity, while in Nyari v. Napolitano, the
Court of Appeals held that it could not.
Felix Case. On April 13, the U.S. Court of Appeals (9thCir)
issued its opinion
[19 pages in PDF] in USA v. Felix, a criminal case in which the
issue on appeal was sentencing. He pled guilty to one count of
importation of methamphetamine.
The District Court admitted at his sentencing hearing a "computer
printout" that listed a prior conviction of the defendant. The
government produced no court record in corroboration of the
"computer printout". A government probation officer testified
that the original court file had been destroyed. The defendant challenged
the veracity of the listing. He argued that there was an earlier criminal
case, but that it had been dismissed. The District Court's reliance upon
this "computer printout" caused it to impose a sentence of
The Court of Appeals held that the Federal Rules of Evidence, and due
process procedures that apply during trial, do not apply in sentencing.
The District Court may increase the sentence of a man based upon its
reliance upon a "computer printout".
This case is USA v. Joe Raymond Felix, U.S. Court of Appeals
for the 9th Circuit, App. Ct. No. 07-50173, an appeal from the U.S.
District Court for the Southern District of California, D.C. No.
06CR1610-MJL, Judge James Lorenz presiding. Judge Consuelo Callahan wrote
the opinion of the Court of Appeals, in which Judge Cynthia Hall and
Barry Silverman joined.
Nyari Case. Also on April 13, the U.S. Court of Appeals (8thCir)
issued its opinion
[10 pages in PDF] in Nyari v. Napolitano, an appeal from a denial
of an application for naturalization.
That is, Gyorgy Nyari, a resident of the U.S. since 1983, wants to
become a U.S. citizen. The relevant naturalization statute requires that
the applicant be "a person of good moral character". The former
Immigration and Naturalization Service (INS) denied his application, on
moral character grounds, because of his inclusion in a civil database of
the state of Virginia.
The District Court dismissed his complaint, on cross motions for
summary judgment, on the basis of the database entry, without considering
the affidavits of the three persons with personal knowledge. All three
swore that the database entry was erroneous.
Federal Rules of Civil Procedure, provides that summary judgment is
appropriate only if the affidavits "show that there is no genuine
issue as to any material fact and that the movant is entitled to judgment
as a matter of law".
The Court of Appeals reversed. It held that the District Court erred
in granting summary judgment to the government. It wrote that the
affidavits "create a genuine issue of material fact" within the
meaning of Rule 56. It added that the District Court was correct in
denying Nyari's motion for summary judgment.
The case is remanded to the District Court.
This case is Gyorgy Nyari v. Janet Napolitano, et al., U.S.
Court of Appeals for the 8th Circuit, App. Ct. No. 08-1406, an appeal
from the U.S. District Court for the District of Minnesota. Judge Smith
wrote the opinion of the Court of Appeals, in which Judges Melloy and
Humphries Case. California maintained an electronic database,
which the Court of Appeals wrote has a "high error rate",
"perhaps as high as fifty percent". The state also required certain
government agencies and private sector entities to rely upon this
database. The state provided no recourse to individuals wrongfully listed
in this database. They were allowed no opportunity to have their
[53 pages in PDF] in Humphries stands as authority for the
proposition that when the government creates and maintains an electronic
database with individually identifiable information, and also mandates
that various government and private sector parties access and rely upon
information in this database in issuing licenses, permitting employment,
or allowing the exercise of certain rights, then the individuals listed
in that database have a due process right to challenge information in
See also, story titled "9th Circuit Holds Government Database
With No Redress Process Violates Due Process" in TLJ Daily
E-Mail Alert No. 1,895, February 9, 2009.
This case is Craig and Wendy Humphries v. County of Los Angeles, et
al., U.S. Court of Appeals for the 9th Circuit, App. Ct. No.
05-56467, an appeal from the U.S. District Court for the Central District
of California, D.C. No. CV-03-00697-JVS, Judge James Selna presiding.
Judge Jay Bybee wrote the opinion of the Court of Appeals, in which
Judges Milan Smith and Richard Mills (USDC/CDIL) joined.
What Shakespeare Had to Say About Government Databases. The
playwright, William Shakespeare, addressed this issue in one of his
history plays, Henry
VI, Part 2.
The character Jack Cade explains why he is leading an armed rebellion
against the government: "Is not this a lamentable thing, ... that
parchment, being scribbled o'er, should undo a man?"
This statement is accompanied by two more frequently quoted lines:
"let's kill all the lawyers" and "burn all the records of
|This issue contains the following items:
• Liebowitz Picks Farrell to Lead FTC Bureau of Economics
• Liebowitz Picks Feinstein to Lead FTC Bureau of Competition
• Liebowitz Picks DeSanti to Lead FTC Office of Policy Planning
• More FTC Appointments (David Vladeck for BCP, Joni Lupovitz
for COS, and Jeanne Bumpus for OCR)
• Courts of Appeals Address Reliance Upon Government Databases
New items are highlighted in
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".
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.
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.
9:00 AM. The
for Democracy and Technology (CDT) will host a news briefing
regarding "civil liberties challenges associated with national
cybersecurity policy". The CDT will address recently introduced
cyber security legislation, and the Obama administration's recently
announced review. See, S 773
[LOC | WW],
the "Cybersecurity Act of 2009", and S 778 [LOC | WW],
an untitled bill to establish an Office of the National Cybersecurity
Advisor in the Executive Office of the President, both introduced by Sen. Jay Rockefeller (D-WV) on
April 1, 2009. See also, stories titled "Obama Administration
Announces Review of Cyber and Communications Security" and
"Obama Names Kundra Chief Information Officer" in TLJ Daily
E-Mail Alert No. 1,909, March 5, 2009. The speakers will be the CDT's
Leslie Harris and Greg Nojeim. A light breakfast will be served. The CDT
will also teleconference this event. The participant call in number is 1-800-377-8846;
the participant code is 92 87 41 58#. RSVP to Brock Meeks at brock at cdt
dot org. Location: CDT, 11th floor, 1634 I 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
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.
The House will return from its two week Easter District Work
8:00 AM - 3:30 PM. The Motion Picture
Association of America (MPAA) will host an event titled "American
Creativity at Work". For more information, contact 202-378-9118.
9:30 AM. The U.S. Court of Appeals
(DCCir) will hear oral argument in Verizon Washington DC v.
Communications Workers of America, App. Ct. No. 08-7092. Judges
Ginsburg, Rogers and Kavanaugh will preside. Location: 333 Constitution
10:00 AM - 12:00 NOON. The Heritage
Foundation will host an event titled "The Taiwan Relations
Act's Enduring Legacy on Capitol Hill". The speakers will
include Rep. Shelley Berkley (D-NV). See, notice.
Location: Heritage, 214 Massachusetts Ave., NE.
2:00 - 3:30 PM. The Department of Justice's (DOJ) Antitrust Division will host a
seminar conducted by Matt Osborne (DOJ) on his paper titled "Consumer
Inventory Behavior, Price Sensitivity and Its Implications for Price
Elasticities and Consumer Welfare". 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.
2:00 - 3:30 PM. The Information
Technology and Innovation Foundation (ITIF) will host a panel
discussion titled "Copyright, Content and Class Action Lawsuits:
A Debate on the Google Book Search Settlement". Location: Room LJ
162, Thomas Jefferson Building, Library of Congress, Independence
2:00 - 4:00 PM. The Department of State's (DOS) Advisory Committee
on International Economic Policy (ACIEP) will meet. See, notice in the
Federal Register, March 30, 2009, Vol. 74, No. 59, at Page 14181.
Location: DOS, Room 1107, 2201 C St., NW.
Deadline to submit initial comments to the Copyright Office (CO) and the U.S. Patent and Trademark Office (USPTO)
in response to their notice of inquiry (NOI) regarding facilitating
access to copyrighted works for blind or disabled people. See, notice in the
Federal Register, March 26, 2009, Vol. 74, No. 57, at Pages 13268-13270.
People and Appointments
4/13. Linda Thomsen returned to the law firm of Davis Polk & Wardell (DPW) as a
partner in its Washington DC office. She was previously head of the
Securities and Exchange Commission's (SEC) Division of Enforcement
(DOE). During her employment in the DOE, the SEC aggressively pursued
Martha Stewart and Mark Cuban, but not Bernard Madoff. See, DPW release.
4/11. Judith Krug died. She was Director of the Office of
Intellectual Freedom at the American
Library Association (ALA). See, ALA
4/14. eBay announced in a release
that it "plans to separate Skype from the company, beginning with an
initial public offering that is intended to be completed in the first
half of 2010. Specific timing of the IPO will be based on market
4/13. The National
Telecommunications and Information Administration (NTIA) published a notice in the
Federal Register that announces, describes, recites, and sets the
effective date (April 13, 2009) of, amendments to its Manual of
Regulations and Procedures for Federal Radio Frequency Management, or NTIA
Manual. See, Federal Register, April 13, 2009, Vol. 74, No. 69, at
4/13. The U.S. Court of
Appeals (DCCir) issued another opinion
[8 pages in PDF] in Sturdza v. UAE, a long running case
involving claims of copyright infringement. Although, the present opinion
only addresses the issue of appointment of a guardian ad litem. This case
is Elena Sturdza v. United Arab Emirates, et al., U.S. Court of
Appeals for the District of Columbia, App. Ct. Nos. 00-7279, 06-7061, and
06-7069, appeals from the U.S. District Court for the District of
Columbia, D.C. No. 98cv02051.
4/13. The U.S. Court of Appeals
(8thCir) issued its opinion
in USA v. Rodebaugh, affirming the convictions of three
persons for using a telephone to facilitate a controlled substance
offense in violation of 21 U.S.C. § 843(b). This case is U.S.A. v.
Rodney Keith Rodebaugh, Bruce Allen Johnson, and Eugene Rodney Rodebaugh,
U.S. Court of Appeals for the 8th Circuit, App. Ct. Nos. 08-1546, No.
08-1581, and 08-1675, appeals from the U.S. District Court for the
Western District of Missouri.
3/31. The Federal Bureau of Investigations' (FBI) Internet Crime Complaint Center released
an annual report
[28 pages in PDF] titled "2008 Internet Crime Report".
It states that complaints increased 33% from 2007 to 2008.
|About Tech Law
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Copyright 1998-2009 David Carney. All rights reserved.