6/1. The Supreme Court granted certiorari in In Re Bilski. See, Orders List [8 pages in PDF] at page 1.

On October 30, 2008, the U.S. Court of Appeals (FedCir) issued its 9-3 en banc opinion [132 pages in PDF] in In re Bernand Bilski and Rand Warsaw, an appeal from the U.S. Patent and Trademark Office's (USPTO) Board of Patent Appeals and Interferences (BPAI), regarding patentable subject matter.

The Court of Appeals affirmed the September 26, 2006, opinion [71 pages in PDF] of the BPAI, which affirmed the rejection of a claim for an invention that discloses a method of doing business -- a method of hedging risk in the field of commodities trading.

The Court of Appeals held that the "claims are not directed to patent-eligible subject matter" under 35 U.S.C. § 101.

The Court of Appeals held that the Supreme Court's machine or transformation test is applicable to process patents, and that the Federal Circuit's useful, concrete and tangible result inquiry, discussed in State Street, is no longer to be relied upon.

The Supreme Court's opinion in this case may have far reaching consequences for business method patents, and patentable subject matter generally.

See, 1998 opinion in State Street Bank & Trust v. Signature Financial Group, reported at 149 F.3d 1368, that business methods can be patentable subject matter

See also, story titled "Federal Circuit Curtails Business Method Patents" in TLJ Daily E-Mail Alert No. 1,850, October 30, 2008, and story titled "Federal Circuit Receives Amicus Briefs Re Business Method Patents and Patentable Subject Matter" in TLJ Daily E-Mail Alert No. 1,743, April 8, 2008.

Ed Black, head of the Computer and Communications Industry Association (CCIA), stated in a release that "The lack of limits on patentable subject matter as a result of the State Street decision has created chaos in the marketplace and provided fertile breeding ground for patent trolls. We have commended the federal circuit decision in Bilski as an effort to redraw the limits consistent with Supreme Court precedent."

He added that "We are pleased by the federal circuit decision in Bilski because it cuts back on what has been an extremely problematic area in the patent system that stems from granting patents on abstract subject matter. We hope the Supreme Court will return to the wisdom of its earlier rulings and affirm strong principles about the limits of patentable subject matter."

This case is In Re Bilski and Rand Warsaw, Supreme Court of the U.S., Sup. Ct. No. 08-964, a petition for writ of certiorari to the U.S. Court of Appeals for the Federal Circuit. See also, Supreme Court docket.

5/28. The Department of Justice (DOJ) and the Federal Communications Commission (FCC) filed their amicus curiae brief [27 pages in PDF] with the Supreme Court of the U.S. (SCUS) in Level 3 Communications v. St. Louis and Sprint v. San Diego, urging it to deny the petitions for writ of certiorari.

These are Section 253 disputes between telecom companies and municipalities.

Section 253. § 253 provides, at Subsection (a), 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."

Then, it provides, at Subsection (c), 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."

Level 3 v. St. Louis. The February 5, 2007, opinion [10 pages in PDF] of the U.S. Court of Appeals (8thCir) in Level 3 I sets the standard for applying 47 U.S.C. § 253 in the 8th Circuit. It is a standard that municipalities will appreciate. Although, communications companies will be dismayed, and other circuits have rendered different interpretations.

The September 4, 2008, opinion [7 pages in PDF] of the 8th Circuit in Level 3 II, the opinion under review, affirmed the District Court's summary judgment for St. Louis.

See also, Supreme Court docket, and story titled "8th Circuit Addresses Sections 253 & 1983 in Rights of Way Case" in TLJ Daily E-Mail Alert No. 1,533, February 6, 2007.

Sprint v. San Diego. On March 13, 2007, the U.S. Court of Appeals (9thCir) issued its opinion [33 pages in PDF] affirming the judgment of the District Court that San Diego's wireless zoning ordinance in question is preempted by § 253, but that this violation creates no private right of action for damages under 18 U.S.C. § 1983.

The Court of Appeals issued an amended order and opinion [34 pages in PDF] on June 13, 2007.

On May 14, 2008, the Court of Appeals granted en banc review. On September 11, 2008, the en banc panel of the 9th Circuit issued it opinion [17 pages in PDF], the opinion under review, reversing the District Court. It held that San Diego's ordinance does not effectively prohibit Sprint from providing wireless services, and therefore the Communications Act does not preempt San Diego's ordinance.

See also, Supreme Court docket. And see, stories titled "9th Circuit Holds That Wireless Zoning Ordinance Violates § 253(a), But This Creates No Private Right Of Action Under § 1983" in TLJ Daily E-Mail Alert No. 1,551, March 13, 2008, and "En Banc Panel of 9th Circuit to Hear Sprint v. San Diego" in TLJ Daily E-Mail Alert No. 1,768, May 16, 2008.

Amicus Brief. The amicus brief of the DOJ and FCC argues that "Although some aspects of the Eighth and Ninth Circuits' opinions might be read to suggest an unduly narrow understanding of Section 253(a)'s preemptive scope, neither decision warrants this Court’s review. Both courts of appeals correctly held that a plaintiff seeking preemption under Section 253 cannot meet its burden simply by alleging that, under circumstances that might exist at some indeterminate future time, a legal requirement ``may´´ affect its ability to provide a telecommunications service. Instead, a plaintiff must present evidence of the practical effects of the requirement at issue. In these cases, the courts of appeals concluded that petitioners had failed to carry that burden. Those case specific determinations do not warrant further review."

It adds, "Nor is there a clear conflict among the circuits on the standard for preemption under Section 253(a)."

This case is Level 3 Communications, LLC v. City of St. Louis and Sprint Telephony PCS, L.P. v. San Diego County, et al., Supreme Court of the U.S., Sup. Ct. Nos. 08-626 and 08-759, petitions for writ of certiorari to the U.S. Court of Appeals for the 8th Circuit, and U.S. Court of Appeals for the 9th Circuit.

5/15. The Department of Justice (DOJ) and Federal Communications Commission (FCC) filed their amicus curiae brief [30 pages in PDF] with the Supreme Court of the U.S. (SCUS) in Alliance for Community Media v. FCC, urging the SCUS not to grant certiorari.

This pertains to the FCC's 2006 local franchising order and 47 U.S.C. § 541

The FCC adopted this order on December 20, 2006. See, story titled "FCC Adopts Order Affecting Local Franchising Authorities" in TLJ Daily E-Mail Alert No. 1,510, December 27, 2006. The FCC released the text [109 pages in PDF] on March 5, 2007. See, story titled "FCC Releases Text of Video Franchising Order and Further NPRM" in TLJ Daily E-Mail Alert No. 1,548, March 7, 2007. The order is FCC 06-180 in MB Docket 05-311.

Local franchising authorities (LFAs), groups that represent LFAs, and the National Cable Telecommunications Association (NCTA) filed petitions for review, arguing that the FCC lacked statutory authority, that its interpretation is not entitled to deference, and the order is arbitrary and capricious.

On June 27, 2008, the U.S. Court of Appeals (6thCir) issued its opinion [20 pages in PDF] upholding the FCC's 2006 video franchising order. It is also reported at 529 F.3d 763. See, story titled "6th Circuit Upholds FCC's Video Franchising Rules" in TLJ Daily E-Mail Alert No. 1,787, June 30, 2008.

And of course, the FCC now does not want the Supreme Court to take the case. It argues in this amicus brief that it acted pursuant to statutory authority.

This case is Alliance for Community Media, et al. v. FCC et al., Sup. Ct. No. 08-1027, a petition for writ of certiorari to the U.S. Court of Appeals for the 6th Circuit. See also, Supreme Court docket.

6/1. The Federal Communications Commission (FCC) issued a revised notice [PDF] regarding the agenda for its June 3, 2009, event titled "Open Meeting". The FCC is not scheduled to adopt any rules, orders, reports, or rulings at this event. Rather, it will hear testimony from FCC and outside persons regarding the status of government attempts to plan consumers' and companies' transition to digital television.

5/29. The Federal Communications Commission (FCC) adopted and released an order [PDF] that states that "we are suspending the filing requirement for the existing Form 323 for licensees who would otherwise be required to file between the date of this Order and November 1, 2009". FCC Form 323 collects ownership information about broadcast facilities. In April, the FCC expanded the scope of its broadcast ownership information collection.

5/29. The Federal Communications Commission (FCC) published a public notice (DA 09-152), and a notice in the Federal Register regarding its Auction 79, scheduled to begin on September 1, 2009. These items list dates and deadlines. See, Federal Register, May 29, 2009, Vol. 74, No. 102, at Pages 25737-25744.

5/27. The Federal Communications Commission (FCC) released a report [83 pages in PDF] titled "Bringing Broadband to Rural America: Report on Rural Broadband Strategy". This report includes recommendations and discussions, but no mandates. FCC Commissioner Jonathan Adelstein stated in a release that "This isn't a report that just talks about interagency coordination. It has already served as a catalyst for encouraging greater discussion across the federal government that is unprecedented in my time on the Commission."

6/1. President Obama formally nominated Judge Sonia Sotomayor to be a Justice of the Supreme Court. See, White House news office release.

6/1. The Department of Homeland Security (DHS) announced that Greg Schaffer was named Assistant Secretary for Cybersecurity and Communications (CS&C) at the DHS. He previously worked for Alltel. Bruce McConnell was named Counselor to the National Protection and Programs Directorate (NPPD) Deputy Under Secretary. He was previously the head of McConnell International and Government Futures, a consulting business. Deputy Under Secretary for NPPD Philip Reitinger will also serve as Director of the National Cybersecurity Center (NCSC). See, DHS release.

6/1. The Public Knowledge (PK) announced that Sherwin Siy is promoted from Staff Attorney to Deputy Legal Director, Rashmi Rangnath is promoted from Staff Attorney to Director of PK's Global Knowledge Initiative, and Jef Pearlman will be promoted to Staff Attorney after the completion of his Equal Justice Works fellowship in October.

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This issue contains the following items:
 • Supreme Court Grants Cert in In Re Bilski
 • DOJ and FCC Urge SCUS to Deny Cert in Section 253 Cases
 • DOJ and FCC File Brief with SCUS in Challenge to FCC Local Franchising Order
 • More FCC News (next meeting; Form 323; Auction 79; rural broadband report)
 • People and Appointments (Sotomayor nominated; DHS cyber security picks; Public Knowledge promotions)

The House will not meet.

The Senate will return from its Memorial Day recess at 2:00 PM. It will resume consideration of S 146 [LOC | WW], the "Railroad Antitrust Enforcement Act".

Day one of a four day conference titled "Computers, Freedom, and Privacy 2009". See, conference web site. Location: Marvin Center, George Washington University.

Deadline to submit comments to numerous financial regulatory agencies regarding their information collection programs, including Suspicious Activity Reports. The agencies are the Department of the Treasury's (DOT) Financial Crimes Enforcement Network (FinCEN), DOT's Office of the Comptroller of the Currency (OCC), DOT's Office of Thrift Supervision (OTS), Federal Reserve Board (FRB), Federal Deposit Insurance Corporation (FDIC), and National Credit Union Administration (NCUA). See, notice in the Federal Register, April 1, 2009, Vol. 74, No. 61, at Pages 14863-14865.

Deadline to submit comments to the Department of Homeland Security's (DHS) Privacy Office in advance of its two day public workshop on June 22 and 23, 2009, titled "Government 2.0: Privacy and Best Practices". This workshop will address operational, privacy, security, and legal issues associated with government use of social media. See, notice in the Federal Register, April 17, 2009, Vol. 74, No. 73, at Pages 17876-17877. See also, story titled "DHS Privacy Office Seeks Comments on Government Use of Social Media" in TLJ Daily E-Mail Alert No. 1,928, April 16, 2009.

Deadline to submit applications to the National Telecommunications and Information Administration (NTIA) to be members of the Department of Commerce's Spectrum Management Advisory Committee (CSMAC). See, notice in the Federal Register, May 6, 2009, Vol. 74, No. 86, at Pages 20922-20923.

The House will return from it Memorial Day recess. It will meet at 2:00 PM for legislative business. It will consider numerous non-technology related items under suspension of the rules. Votes will be postponed until 6:30 PM. See, Rep. Hoyer's schedule for week of June 1.

Day two of a four day conference titled "Computers, Freedom, and Privacy 2009". See, conference web site. Location: Marvin Center, George Washington University.

8:00 AM - 5:00 PM. Day one of a two day closed meeting of the Defense Intelligence Agency's National Defense Intelligence College Board of Visitors. See, notice in the Federal Register, May 8, 2009, Vol. 74, No. 88, at Page 21666.

9:30 AM. The Senate Homeland Security and Government Affairs (SHSGAC) will hold a hearing on the nomination of Rand Beers to be the Department of Homeland Security's (DHS) Under Secretary for National Protection and Programs. The SHSGAC will webcast this event. See, notice. Location: Room 342, Dirksen Building.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Lucent Technologies, et al. v. Gateway, Dell, Microsoft, et al, App. Ct. No. 2008-1485, an appeal from the U.S. District Court (SDCal) regarding patent damages. Location: Courtroom 402.

10:00 AM - 5:00 PM. Day one of a two day meeting of the National Science Foundation's (NSF) Advisory Committee for Cyberinfrastructure. See, notice in the Federal Register, May 5, 2009, Vol. 74, No. 85, at Page 20741. Location: NSF, 4201 Wilson Blvd., Room 1235, Arlington, VA.

5:00 PM. The House Appropriations Committee's (HAC) Select Intelligence Oversight Panel will hold a closed hearing on appropriations for the Central Intelligence Agency (CIA). Location: Room H-140, Capitol Building.

6:00 - 8:15 PM. The Federal Communications Bar Association's (FCBA) "Internet Service Providers: International and Domestic U.S. IP Rules of the Road". The first panel will be titled "Update on United States Issues: Digital Millennium Copyright Act (DMCA), Three Strikes (Graduated Response), and Filtering". The speakers may be Jim Burger (Dow Lohnes), Sarah Deutsch (Verizon), Steve Marks (Record Industry Association of America), and Jeff Lawrence (Intel). The second panel will be titled "Survey of International Issues for ISPs". The speakers may be Christoper Boam (Verizon), Jane Mago (National Association of Broadcasters), and Jim Bouras. For more information, contact Jim Burger at jburger at dowlohnes dot com or Jennifer Ullman Jennifer dot ullman at verizon dot com. The price to attend ranges from $25 to $150. See, notice. Location: Dow Lohnes, 5th floor, 1200 New Hampshire Ave., NW.

The House will meet at 10:00 AM for legislative business. The agenda for the week includes numerous non-technology related items. See, Rep. Hoyer's schedule for week of June 1.

8:00 AM - 12:00 NOON. Day two of a two day closed meeting of the Defense Intelligence Agency's National Defense Intelligence College Board of Visitors. See, notice in the Federal Register, May 8, 2009, Vol. 74, No. 88, at Page 21666.

8:30 AM - 1:00 PM. Day two of a two day meeting of the National Science Foundation's (NSF) Advisory Committee for Cyberinfrastructure. See, notice in the Federal Register, May 5, 2009, Vol. 74, No. 85, at Page 20741. Location: NSF, 4201 Wilson Blvd., Room 1235, Arlington, VA.

9:30 AM. The House Judiciary Committee's (HJC) Subcommittee on Courts and Competition Policy will hold a hearing titled "Pay to Delay: Are Patent Settlements That Delay Generic Drug Market Entry Anticompetitive?". See, notice. The HJC will webcast this event. Location: Room 2141, Rayburn Building.

9:30 AM. The Federal Communications Commission (FCC) may hold an event titled "Open Meeting". Location: FCC, Room TW-C305, 445 12th St., NW.

10:00 AM. The Senate Judiciary Committee (SJC) will hold a hearing on S 424 [LOC | WW] and HR 1024 [LOC | WW], the "The Uniting American Families Act: Addressing Inequality in Federal Immigration Law". The House Judiciary Committee (HJC) has yet to hold a hearing on this bill. See, notice. Location: Room 226, Dirksen Building.

10:00 AM. The Federal Communications Commission (FCC) may hold an event titled "Open Meeting". Location: FCC, Commission Meeting Room.

2:00 - 3:00 PM. The Heritage Foundation will host a panel discussion titled "Unfair Government Competition: A Threat to the U.S. Economy". The speakers will include Sen. John Thune (R-SD) and Rep. John Duncan (R-TN). See, notice. Location: Heritage, 214 Massachusetts Ave., NE.

Day three of a four day conference titled "Computers, Freedom, and Privacy 2009". See, conference web site. Location: Marvin Center, George Washington University.

The House will meet at 10:00 AM for legislative business. The agenda for the week includes numerous non-technology related items. See, Rep. Hoyer's schedule for week of June 1.

9:30 AM. The Senate Appropriations Committee's (SAC) Subcommittee on Commerce, Justice and Science will hold a hearing on appropriations for the Federal Bureau of Investigation (FBI). The witness will be FBI Director Robert Mueller. Location: Room 192, Dirksen Building. The Subcommittee will then meeting in closed session in Room SVC-217.

10:00 AM. The Senate Judiciary Committee (SJC) will hold an executive business meeting. The agenda yet again includes consideration of S 417 [LOC | WW], the "States Secret Protection Act", and HR 985 [LOC | WW] and S 448 [LOC | WW], both titled the "Free Flow of Information Act of 2009". See, stories titled "Senate Judiciary Committee to Consider State Secrets Bill" and "9th Circuit Rules in State Secrets Case" in TLJ Daily E-Mail Alert No. 1,933, April 29, 2009. The agenda also again includes consideration of the nominations of David Hamilton to be a Judge of the U.S. Court of Appeals (6thCir), Andre Davis to be a Judge of the U.S. Court of Appeals (4thCir), and Thomas Perez to be Assistant Attorney General in charge of the Civil Rights Division. The SJC rarely follows its published agendas. See, notice. Location: Room 226, Dirksen Building.

10:00 AM. The House Commerce Committee's (HCC) Subcommitte on Oversight and Investigations will hold a hearing titled "Commercial Sales Of Military Technologies". Location: Room 2322, Rayburn Building.

10:00 AM. The House Commerce Committee's (HCC) Subcommitte on Communications, Technology and the Internet will hold an oversight hearing on the Internet Corporation for Assigned Names and Numbers (ICANN). Location: Room 2123, Rayburn Building.

10:00 AM. The House Small Business Committee will hold a hearing titled "Legislative Initiatives to Strengthen and Modernize the SBIR and STTR Programs". SBIR is the Small Business Innovation Research program. STTR is the Small Business Technology Transfer program. Location: Room 2360, Rayburn Building.

10:00 AM - 1:00 PM. The National Telecommunications and Information Administration's (NTIA) Online Safety and Technology Working Group (OSTWG) will hold its organizational meeting. The OSTWG was created by Section 214 of S 1492 [LOC | WW]. Part I of this bill is the "Broadband Data Improvement Act"; Part II is the "Protecting Children in the 21st Century Act". It is now Public Law No. 110-385. See, story titled "NTIA Seeks Members for Online Safety and Technology Working Group" in TLJ Daily E-Mail Alert No. 1,863, November 25, 2008. See also, notice in the Federal Register, May 21, 2009, Vol. 74, No. 97, at Page 23846. Location: Federal Communications Commission, 445 12th St., SW.

11:00 AM. The House Judiciary Committee's (HJC) Subcommittee on Commercial and Administrative Law will hold a hearing on HR 1508 [LOC | WW], the "Sunshine in Litigation Act of 2009". See, notice. The HJC will webcast this event. Location: Room 2237, Rayburn Building.

2:00 PM. The House Judiciary Committee's (HJC) Subcommittee on the Constitution, Civil Rights and Civil Liberties will hold a hearing on HR 984 [LOC | WW], the "States Secret Protection Act". See, notice. The HJC will webcast this event. Location: Room 2141, Rayburn Building.

2:30 PM. The Senate Appropriations Committee's (SAC) Subcommittee on the Legislative Branch will hold a hearing on appropriations for the Library of Congress. Location: Room 138, Dirksen Building.

2:30 PM. The Federal Trade Commission's (FTC) Bureau of Economics (BOE) will host an untitled seminar by Devin Pope (University of Pennsylvania) He is an economist, and author of the paper titled "The Effect of the Internet on Matching Markets: Evidence from Craigslist". Location: FTC Conference Center, 601 New Jersey Ave., NW.

Day four of a four day conference titled "Computers, Freedom, and Privacy 2009". See, conference web site. Location: Marvin Center, George Washington University.

Day one of a two day meeting of the Federal Bureau of Investigation's (FBI) Criminal Justice Information Services Division's Advisory Policy Board. This Division administers the Integrated Automated Fingerprint Identification System, the Interstate Identification Index, Law Enforcement Online, National Crime Information Center, the National Instant Criminal Background Check System, the National Incident-Based Reporting System, Law Enforcement National Data Exchange, and Uniform Crime Reporting. See, notice in the Federal Register, April 15, 2009, Vol. 74, No. 71, at Page 17524. Location: Gaylord National, 201 Waterfront Street, National Harbor, MD.

Deadline to submit oppositions to the Federal Communications Commission (FCC) in response to the petitions for partial reconsideration of the FCC's Second Report and Order and Order on Reconsideration (also know as the second internet based TRS order) filed by the Telecommunications for the Deaf and Hard of Hearing, Inc. and the TDI Coalition, and by GoAmerica, Inc. The FCC adopted and released this second internet based TRS order [47 pages in PDF] on December 19, 2008. It is FCC 08-275 in CG Docket No. 03-123 and WC Docket No. 05-196. See, notice in the Federal Register, May 20, 2009, Vol. 74, No. 96, at Pages 23715-23716.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to the FCC's notice regarding the National Exchange Carrier Association's (NECA) proposed compensation rates for interstate traditional telecommunications relay service (TRS), interstate Speech-to-Speech (STS) relay service, interstate captioned telephone service (CTS) and interstate and intrastate Internet Protocol (IP) captioned telephone service (IP CTS), interstate and intrastate IP Relay, and interstate and intrastate Video Relay Service (VRS). This is also the deadline to submit initial comments in response to the proposed carrier contribution factor and funding requirement for the Interstate TRS Fund. This item is FCC 09-39 in CG Docket No. 03-123 and WC Docket No. 05-196. See, notice in the Federal Register, May 21, 2009, Vol. 74, No. 97, at Pages 23859-23860.

Deadline to submit initial comments to the Federal Communications Commission (FCC) Notice of Proposed Rulemaking whether or not it should adopt new Video Relay Service (VRS) reimbursement rates that reflect the cost data in the fund administrator's recent filing with the FCC, rather than continuing the current rates. This item is FCC 09-39 in CG Docket 03-123. See, notice in the Federal Register, May 21, 2009, Vol. 74, No. 97, at Pages 23815-23816.

The House may meet at 9:00 AM for legislative business. The agenda for the week includes numerous non-technology related items. See, Rep. Hoyer's schedule for week of June 1.

10:00 AM. The Senate Finance Committee (SFC) will hold a hearing on the nomination of Miriam Sapiro to be Deputy U.S. Trade Representative. See, notice. Location: Room 215, Dirksen Building.

12:00 NOON - 2:00 PM. The Free State Foundation (FSF) will host a lunch titled "Broadband Nation: Where Does the U.S. Really Stand in the World Rankings?". The speakers will be David Gross (Wiley Rein), Rob Atkinson (Information Technology and Innovation Foundation), Link Hoewing (Verizon), and Christopher McCabe (CTIA). RSVP to Susan Reichbart at sreichbart at freestatefoundation dot org. Location: Congressional Meeting Room North, Capitol Visitor Center.

Day two of a two day meeting of the Federal Bureau of Investigation's (FBI) Criminal Justice Information Services Division's Advisory Policy Board. This Division administers the Integrated Automated Fingerprint Identification System, the Interstate Identification Index, Law Enforcement Online, National Crime Information Center, the National Instant Criminal Background Check System, the National Incident-Based Reporting System, Law Enforcement National Data Exchange, and Uniform Crime Reporting. See, notice in the Federal Register, April 15, 2009, Vol. 74, No. 71, at Page 17524. Location: Gaylord National, 201 Waterfront Street, National Harbor, MD.