6/19. The U.S. Court of Appeals (DCCir) issued its opinion [20 pages in PDF] in Verizon v. FCC, a petition for review of the Federal Communications Commission's (FCC) December 2007 order denying Verizon's petitions for forbearance from the loop and transport unbundling requirement in the Boston, New York, Philadelphia, Pittsburgh, Providence, and Virginia Beach metropolitan areas.

The Court of Appeals held that the FCC erred, and granted the petitions, but did not vacate the FCC's order, or set any time limit for the FCC to act. This is a nominal victory for Verizon. However, to the extent that the FCC may not act on remand, Verizon will have won no relief.

The FCC's forbearance authority is codified at 47 U.S.C. § 160. The FCC's unbundling requirements are codified at 47 U.S.C. § 251(c)(3).

Verizon filed its petitions for forbearance on September 6, 2006. The FCC adopted its order [PDF] denying these petitions on December 4, 2007, and released it on December 5, 2007. It is FCC 07-212 in WC Docket No. 06-172.

Verizon brought the present petition for review. The Court of Appeals wrote that Verizon argued that "the FCC erroneously denied Verizon’s petition for forbearance from local exchange unbundling regulations by unlawfully departing from the legal standards and analyses in its prior forbearance orders. Specifically, Verizon asserts that the FCC’s order should be vacated because it relied on a newly minted bright-line market share test to determine whether the retail market in six Metropolitan Statistical Areas (MSAs) was sufficiently competitive to warrant forbearance from unbundling requirements."

The Court of Appeals held that "We agree that this test departs from FCC precedent by relying solely on actual, and not potential, marketplace competition. The FCC’s unexplained departure from its precedent was in error. Accordingly, we grant Verizon’s petition on this limited ground and remand for further consideration."

However, the Court of Appeals did not vacate the FCC's order.

The statute requires the FCC to rule on forbearance petitions within one year, with the option for a 90 day extension. "Any such petition shall be deemed granted" if not acted upon within this time.

Now, under the just released opinion, the FCC is free to take no action for years, without the deemed granted language operating as a grant of the petition. And, if the FCC issues no new order denying the petitions for forbearance, there is no final order for Verizon to challenge.

Given the FCC's history of regulating by inaction, Verizon's victory may be illusory.

FCC Chairman Michael Copps stated in a release that "We are pleased that the Court remand focused narrowly on the need for the Commission to better support the Commission's denial of the Verizon forbearance petitions. While the Commission will have to invest additional resources on this matter, we should always strive for a rigorous analysis of these forbearance petitions and we are confident of our ability to do just that on remand."

This case is Verizon Telephone Companies v. FCC and USA, U.S. Court of Appeals for the District of Columbia, App. Ct. No. 08-1012, a petition for review of a final order of the FCC. Judge Sentelle wrote the opinion of the Court of Appeals, in which Judges Griffith and Edwards joined.

6/19. The U.S. Court of Appeals (2ndCir) issued its opinion [17 pages in PDF] in Zino Davidoff v. CVS, a trademark case involving unique product codes (UPCs).

Introduction. The Court of Appeals upheld an injunction against CVS drugstores that prohibits CVS from selling any of Davidoff's trademarked goods with the UPCs removed, regardless of whether or not the goods are counterfeit.

The facts of this case involve cologne. However, this is a far reaching holding that will affect tech sector products, and many other types of products.

This holding will have many effects. First, it will aid manufacturers, retailers, and health and law enforcement agencies in policing the sale counterfeit products for health and safety purposes. It will make it easier to catch counterfeit products that pose safety risks, and assist in product recalls.

Second, it will aid makers of trademarked goods in catching counterfeits of inferior quality, defending brands, and maximizing return on investment.

Third, and most controversial, this holding will assist manufacturers in controlling distribution channels, and suppressing gray market sales and parallel markets. With UPCs intact, manufacturers can discovery which of their purchasers are reselling to other retailers, and stop selling to them.

Some manufacturers may rely this holding, and develop UPC based distribution systems, for the sole purpose of regulating distribution channels, while asserting safety and counterfeiting concerns as pretexts.

This opinion will benefit many makers of trademark protected products. It will disadvantage both counterfeiters and certain retailers -- particularly low end chains that sell gray market goods.

Background. Zino Davidoff is a Swiss maker of retail products, including men's and women's cologne, watches, and leather goods. It holds uncontested trademarks for "COOL WATER" products, which are the subject of this case.

CVS is a U.S. based chain of drugstores. Davidoff does not sell to CVS. However, CVS acquires COOL WATER products from others. It also has sold counterfeit COOL WATER products.

Davidoff filed a complaint alleging trademark infringement, unfair competition, and trademark dilution in connection with CVS's sale of counterfeit products. However, that is not the subject of the present appeal.

Davidoff learned in the course of this litigation that CVS was also removing Davidoff's UPCs from COOL WATER products, by cutting them away, grinding them off, or chemically removing them.

These numbers are unique to each unit sold. The UPC is on the bottom of each bottle, and on the container box.

The Court of Appeals wrote that "Embedded within the code is a variety of information about that particular unit, such as the time and place of production, the production line, ingredients used, the distributor, the intended customer, etc."

It continued that "Davidoff’s use of the UPC plays an important role in fighting counterfeits. Because of the high expense involved in placing a unique number on each unit, counterfeiters will generally either omit such a number from their packaging or repeatedly use sets of fake numbers on a series of counterfeit units. The UPC system therefore facilitates the spotting of counterfeit units by allowing investigators to make a determination based on the absence of a UPC on the packaging or the use of a repeating and, thus, fake UPC number."

The Court added that this UPC is also part of Davidoff's quality control program.

While CVS agreed not to sell counterfeit products, it did not agree to stop selling products with the UPC removed.

Davidoff amended its complaint, and moved for a preliminary injunction, to enjoin CVS from dealing in any way in its trademarked goods with the UPC removed. It argued that this is also trademark infringement.

CVS argued that the products with UPCs removed are not counterfeit, but rather are gray market products sold by Davidoff to retailers in other countries, who then resold them to CVS.

The District Court granted a preliminary injunction.

Court of Appeals Opinion. CVS brought the present appeal. The Court of Appeals affirmed.

The Court of Appeals acknowledged that the Lanham Act does not impose liability for the sale of genuine goods bearing a true mark even though the sale is not authorized by the mark owner because such a sale does not inherently cause confusion or dilution.

However, it wrote that "The fact that the goods in question may be gray-market goods does not furnish CVS with a valid defense. The question before us is not whether, or under what circumstances, the sale of gray-market goods infringes their trademark."

It continued that the District Court's preliminary injunction was justified "on the basis that the removal of Davidoff’s codes interfered unlawfully with Davidoff's trademark rights regardless of whether the goods were originally authorized by Davidoff for sale in the United States or elsewhere."

The Court reasoned that "The code system enhances the effectiveness of Davidoff’s ability to detect and prevent the sale of counterfeits. Removal of the codes makes it more difficult to detect counterfeits. Regardless of whether the presence or absence of a code on an individual unit of Davidoff product establishes the authenticity of that unit, the removal of the codes exposes Davidoff to an increased risk that any given unit sold at retail will be counterfeit."

The Court also reasoned that Davidoff's UPC system assist quality controls. "When a defect in quality is discovered in a particular item, reference to the code helps identify the source of the problem and thus facilitates correction. Furthermore, when a quality problem is discovered, the code system permits easy, rapid identification of affected product already in the chain of distribution, so as to facilitate a targeted recall that will remove the defective goods from the channels of commerce while leaving unaffected goods in place."

The Court also acknowledged that a UPC system would facilitate control of distribution channels, but that this does not preclude the injunctive relief sought by Davidoff. It wrote, "Nor does the fact that the UPC system also may allow Davidoff to ensnare distributors operating outside the authorized distribution and retail network and to identify importers of gray-market goods defeat its claim. What matters is whether Davidoff’s codes are a bona fide control device upon which Davidoff actually relies. If the codes served only to help Davidoff exert control over the distribution and sales network, different questions would arise."

Congressional Action. A decade ago, in the 105th and 106th Congresses, there were efforts to enact legislation that would have accomplished something similar to what the the Court of Appeals has just held.

The primary proponents were Rep. Bob Goodlatte (R-VA) and Rep. Zoe Lofgren (D-CA).

In the 106th Congress, the bill was HR 2100, the "Antitampering Act of 1999" and "Antitampering Act of 2000". The House Judiciary Committee's (HJC) Subcommittee on Court and Intellectual Property approved an amendment in the nature of a substitute on March 23, 2000. See also, summary of bill, and statement of Rep. Goodlatte. The full Committee did not mark up the bill. It did not become law.

HR 2100 provided, in part, that "it shall be unlawful for any person, other than the consumer or the manufacturer of a good, knowingly and without authorization of the manufacturer ... to alter, conceal, remove, obliterate, deface, strip, or peel any product identification code affixed to or embedded in a good and visible to the consumer ...".

In the 105th Congress the bill was HR 3891, the "Trademark Anticounterfeiting Act of 1998". It was not enacted into law either.

This case is Zino Davidoff SA v. CVS Corporation, U.S. Court of Appeals for the 2nd Circuit, App. Ct. No. 07-2872-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 Judges Livingstone and Katzmann joined.

6/19. The U.S. Court of Appeals (9thCir) issued its opinion [16 pages in PDF] in Satterfield v. Simon & Schuster, a class action brought under the Telephone
Consumer Protection Act (TCPA), which is codified at 47 U.S.C. § 227, in connection with unsolicited text messaging.

Laci Satterfield alleges that Simon & Schuster sent an unsolicitied text message to her cell phone. It was part of a promotional campaign for a Stephen King novel published by Simon & Schuster. However, she also registered for a service with another business, Nextones.com, and in so doing checked a box for the statement "Yes! I would like to receive promotions from Nextones affiliates and brands."

47 U.S.C. § 227(b)(1)(A)(iii) provides that "It shall be unlawful for any person within the United States, or any person outside the United States if the recipient is within the United States -- (A) to make any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system or an artificial or prerecorded voice ... (iii) to any telephone number assigned to a paging service, cellular telephone service, specialized mobile radio service, or other radio common carrier service, or any service for which the called party is charged for the call;"

47 U.S.C. § 227(a)(1) provides that the term "automatic telephone dialing system", or ATDS, means "equipment which has the capacity ... to store or produce telephone numbers to be called, using a random or sequential number generator, and ... to dial such numbers".

She filed a complaint in the U.S. District Court (NDCal) alleging violation of the TCPA. She also sought class action status. Simon & Schuster argued that it did not use an ATDS within the meaning of the TCPA, that Satterfield did not receive a "call" within the meaning of the TCPA, and that Satterfield had consented.

The District Court granted summary judgment of Simon & Schuster on both the ATDS and consent issues. It did not rule on the "call" issue.

The Court of Appeals reversed and remanded. First, it held that there are genuine issues of material fact as to whether Simon & Schuster's system was an ATDS.

Second, it held that "a text message is a ``call´´ within the meaning of the TCPA", because the Federal Communications Commission (FCC) has written this in its rules implementing the TCPA. The Court of Appeals also applied the Supreme Court's Chevron opinion, and concluded that the FCC's interpretation is reasonable, and entitled to deference.

Third, the Court reversed on the consent issue. It wrote that "Satterfield's consent to receive promotional material by Nextones and its affilliates and brands cannot be read as consenting to the receipt of Simon & Schuster’s promotional material".

This case is Laci Satterfield v. Simon & Schuster, Inc., et al., U.S. Court of Appeals for the 9th Circuit Circuit, App. Ct. No. 07-16356, an appeal from the U.S. District Court for the Northern District of California, D.C. No. CV-06-02893-CW, Judge Claudia Wilken presiding. Judge Randy Smith wrote the opinion of the Court of Appeals, in which Judges John Noonan and David Thompson joined.

6/17. The Office of the Solicitor General (OSG) filed its brief with the Supreme Court in DBC v. USPTO/BPAI, urging the Supreme Court to deny the petition for writ of certiorari.

At issue is whether a decision of the U.S. Patent and Trademark Office's (USPTO) Board of Patent Appeals and Interferences (BPAI) should be vacated because two of the members of the panel were appointed by the Director of the USPTO, rather than by the Secretary of Commerce.

The U.S. Court of Appeals (FedCir) issued its opinion [PDF] on November 3, 2008, affirming the decision of the USPTO/BPAI, which affirmed the patent examiner's rejection of all pending claims as obvious under 35 U.S.C. § 103.

The Court of Appeals ruled that DBC had waived its challenge to the appointment of the administrative patent judges who presided over its appeal. That opinion is also reported at 545 F.3d 1373.

This case is DBC v. Patent and Trademark Office Board of Patent Appeals and Interferences, Supreme Court of the U.S., Sup. Ct. No. 08-1284, a petition for writ of certiorari to the U.S. Court of Appeals for the Federal Circuit, App. Ct. No. 2008-1120. The Court of Appeals heard an appeal from the USPTO/BPAI. See also, Supreme Court docket.

6/19. President Obama nominated Joseph Greenaway to be a Judge of the U.S. Court of Appeals for the 3rd Circuit. See, White House news office release and release.

He is a Judge of the U.S. District Court for the District of New Jersey. He was appointed by former President Clinton. Before that, he worked as in house counsel for Johnson & Johnson.

In 2005, the Court of Appeals reversed a preliminary injunction issued by Judge Greenaway in Century 21 v. Lending Tree, a trademark infringement case involving the defense of nominative fair use.

See, October 11, 2005, divided opinion [91 pages in PDF] of the Court of Appeals. See also, story titled "3rd Circuit Rules on Lending Tree's Web Use of Real Estate Brokers' Trademarks" in TLJ Daily E-Mail Alert No. 1,233, October 14, 2009.

6/19. President Obama nominated Beverly Martin to be a Judge of the U.S. Court of Appeals for the 11th Circuit. She is a Judge of the U.S. District Court for the Northern District of Georgia. See, White House news office release and release.

6/19. The Apple web site has disclosed no information relevant to recent news reports that Steve Jobs had a liver transplant two months ago.

The House will not meet. See, Rep. Hoyer's schedule for week of June 22.

The Senate will meet at 2:00 PM. It will resume consideration of S 1023 [LOC | WW], the "Travel Promotion Act of 2009".

8:30 AM - 4:30 PM. Day one of a two day public workshop hosted by the Department of Homeland Security's (DHS) Privacy Office 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. This event is open to the public. 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. 1928, April 16, 2009. Location: Atrium Ballroom, Washington Court Hotel, 525 New Jersey Ave., NW.

12:00 NOON - 2:00 PM. There will be a closed brown bag lunch titled "Communications and Copyright in the 111th Congress" at which staff of the House and Senate Commerce and Judiciary Committees will meet with representatives of regulated entities. This meeting is subject to a reporter gag order. Location: National Cable & Telecommunications Association, 25 Massachusetts Ave., NW.

2:00 - 3:30 PM. The Information Technology and Innovation Foundation (ITIF) will host a panel discussion titled "The Cost of Privacy: A Debate on the Impact of Privacy Laws on Health IT Adoption". The speakers will be Daniel Casto (ITIF), Amalia Miller (University of Virginia), Catherine Tucker (MIT Sloan School of Management), and Deven McGraw (Center for Democracy and Technology). See, notice. Location: ITIF, Suite 610, 1101 K St., NW.

Effective date of, and deadline to submit comments regarding, the Department of Homeland Security (DHS) establishment of a new DHS system of records notice titled "DHS/USCIS -- 009 Compliance Tracing and Monitoring System". This CTMS will collect and use information related to the monitoring and compliance activities for researching and managing misuse, abuse, discrimination, breach of privacy, and fraudulent use of USCIS Verification Division's verification programs, the Systematic Alien Verification for Entitlements (SAVE), and E-Verify. See, notice in the Federal Register, May 22, 2009, Vol. 74, No. 98, at Pages 24022-24027.

Deadline to submit nominations to the Public Knowledge for its annual IP3 awards. For more information, contact Art Brodsky at abrodsky at publicknowledge dot org. Submit nominations to IP3nominees at publicknowledge dot org.

The House will meet at 10:30 AM for morning hour, and at 12:00 NOON for legislative business. The House 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 22.

7:30 - 9:30 AM. The American Council for Technology's (ACT) Industry Advisory Council (IAC) will host a breakfast titled "Transparency, Collaboration and Web 2.0 - Intersecting and Enabling Data Sharing". Location: City Club, Columbia Square, 555 13th St., NW.

8:30 AM - 12:30 PM. Day one of a two day public workshop hosted by the Department of Homeland Security's (DHS) Privacy Office 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. This event is open to the public. 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. 1928, April 16, 2009. Location: Atrium Ballroom, Washington Court Hotel, 525 New Jersey Ave., NW.

10:30 AM - 12:00 NOON. The American Council for Technology's (ACT) Industry Advisory Council (IAC) will host a panel discussion titled "Cyber Crime". The speakers will include Peter Fonash (DHS, Office of Cybersecurity and Communications, Chief Technology Officer), Howard Cox (DOJ), Jeff Troy (FBI), and Zal Azmai (CACI). Location: The Ritz Carlton, Pentagon City, 1250 South Hayes Street, Arlington, VA.

3:00 - 5:00 PM. The American Council for Technology's (ACT) Industry Advisory Council (IAC) Networks & Telecommunications SIG Wireless Committee will host a panel discussion titled "Critical Infrastructure for Communication and Public Safety". Location: Qwest Government Services, 4250 North Fairfax Drive, 2nd floor, Arlington, VA.

3:00 PM. Deadline to submit grant applications to the National Institute of Standards and Technology (NIST) for funding under its Technology Innovation Program (TIP). The TIP is offering grants for research and development of, among other things, civil infrastructure sensing technologies. See, notice in the Federal Register, March 31, 2009, Vol. 74, No. 60, at Pages 14524-14531, and amendment notice in the Federal Register, May 19, 2009, Vol. 74, No. 95, at Page 23396.

The House will meet at 10:00 AM legislative business. The schedule for the week includes consideration of HR 2892 [LOC | WW], the "Department of Homeland Security Appropriations Act, 2010". See, Rep. Hoyer's schedule for week of June 22.

9:00 - 10:30 AM. The Information Technology and Innovation Foundation (ITIF) will host a panel discussion titled "White House Leadership on Innovation Policy: The Case for an Office of Innovation Policy". The speakers will be Robert Atkinson (ITIF), Stuart Benjamin (Duke University law school), Arti Rai (Duke), and Stephen Merrill (National Academy of Sciences). See, notice. Location: ITIF, Suite 610, 1101 K St., NW.

10:00 AM. The House Small Business Committee's (HSBC) Subcommittee on Regulations and Healthcare will hold a hearing titled "Health IT Adoption and the New Challenges Faced by Solo and Small Group Healthcare Practices". Location: Room 2360, Rayburn Building.

10:00 AM - 12:00 NOON. The House Science Committee (HSC) will meet to mark up several bills, including HR 2965 [LOC | WW], the "Enhancing Small Business Research and Innovation Act of 2009". The HSC will webcast this event. Location: Room 2318, Rayburn Building.

10:00 AM. The Senate Judiciary Committee (SJC) will hold a hearing on pending nominations, including that of Christopher Schroeder to Assistant Attorney General in charge of the Department of Justice's (DOJ) Office of Legal Policy (OLP). See, notice. Location: Room 226, Dirksen Building.

10:15 AM. The House Judiciary Committee (HJC) will meet to mark up four bills. The last item on the agenda is HR 984 [LOC | WW], the "State Secrets Protection Act". See, story titled "House Constitution Subcommittee Approves States Secrets Protection Act" in TLJ Daily E-Mail Alert No 1,954, June 12, 2009. See, notice. Location: Room 2141, Rayburn Building.

POSTPONED. 2:00 PM. The Senate Judiciary Committee (SJC) will hold a hearing titled "Promoting Job Creation and Foreign Investment in the United States: An Assessment of the EB-5 Regional Center Program". The SJC will webcast this event. Location: Room 226, Dirksen Building.

5:00 PM. Deadline to submit petitions to the Office of the U.S. Trade Representative (OUSTR) to modify the list of products that are eligible for duty free treatment under the Generalized System of Preferences (GSP) program and to modify the GSP status of certain GSP beneficiary developing countries because of country practices. See, notice in the Federal Register, May 28, 2009, Vol. 74, No. 101, Page 25605-25607.

6:00 - 9:15 PM. The DC Bar Association will host an event titled "Fundamentals of Patents and Licenses for Pharmaceutical and Biotech Products: The New Life Sciences". See, notice. The price to attend ranges from $89-$129. Location: DC Bar Conference Center, 1101 K St., NW.

The House will meet at 10:00 AM legislative business. The schedule for the week includes consideration of HR 2892 [LOC | WW], the "Department of Homeland Security Appropriations Act, 2010". See, Rep. Hoyer's schedule for week of June 22.

8:00 AM - 5:00 PM. The Armed Forces Communications and Electronics Association (AFCEA) will host a one day conference titled "Cybersecurity Symposium". At 8:10 - 8:45 AM, Steven Thompson (NSC, Director for Cybersecurity) will speak. At 8:45 - 10:00 AM, there will be a panel titled "FISMA & the Future". At 10:00 - 11:15 AM, there will be a panel titled "Standard Authorization Process". At 12:00 NOON, Michael Brown (DHS, acting Assistant Secretary for Cybersecurity and Communications) will give the lunch speech. At 1:45 - 3:15 PM, there will be a panel titled "Military Joint Cyber Command Panel". At 3:15 - 4:00 PM, Keith Alexander (NSA Director) will give the closing keynote speech. See, conference web site. Location: Capital Hilton, 1001 16th St., NW

10:00 AM. The House Foreign Affairs Committee's (HFAC) Subcommittee on Asia, the Pacific and the Global Environment will hold a hearing titled "Japan's Changing Role". See, notice. Location: Room 2200, Rayburn Building.

12:00 NOON. The Senate Judiciary Committee (SJC) will hold an executive business meeting. The agenda 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 SJC rarely follows its published agendas. See, notice. Location: Room 226, Dirksen Building.

12:15 - 1:45 PM. The New America Foundation (NAF) will host a panel discussion titled "The End of Spectrum Scarcity: Opportunistic Access to the Airwaves". The speakers will be Kevin Werbach (University of Pennsylvania, and member of President Obama's FCC transition team), Preston Marshall, Michael Marcus, Tom Stroup (Shared Spectrum Company), Sascha Meinrath (NAF), and Michael Calabrese (NAF). See, notice. Location: NAF, 4th floor, 1899 L St., NW.

2:00 - 4:00 PM. The House Science Committee's (HSC) Subcommittee on Technology and Innovation will hold a hearing titled "Assessing Cybersecurity Activities at NIST and DHS". The witnesses will be Gregory Wilshusen (GAO, Director of Information Security Issues), Mark Bregman (Symantec), Scott Charney (Microsoft), and Jim Harper (Cato Institute). Location: Room 2318, Rayburn Building.

3:00 PM. Deadline to submit applications to the National Institute of Standards and Technology (NIST) for money to build research science buildings. See, notice in the Federal Register, June 1, 2009, Vol. 74, No. 103, at Pages 26213-26217.

6:00 PM. Deadline to submit applications to the Federal Communications Commission (FCC) to participate in Auction 79, regarding 122 construction permits in the FM broadcast service. See, May 29, 2009, public notice (DA 09-152), and notice in the Federal Register, May 29, 2009, Vol. 74, No. 102, at Pages 25737-25744.

6:00 - 8:00 PM. The Federal Communications Bar Association (FCBA) will host a reception. Location: Washington Hilton Hotel, 1919 Connecticut Ave., NW.

The House may meet at 9:00 AM legislative business. See, Rep. Hoyer's schedule for week of June 22.

5:00 PM. Deadline to submit comments to the Department of Health and Human Services' (DHHS) Health Information Technology Policy Committee regarding the meaning of the term "meaningful use'' of electronic health records, as used in Sections 4101 and 4202 of HR 1 [LOC | WW], the huge spending bill enacted in February. See, notice in the Federal Register, June 18, 2009, Vol. 74, No. 116, at Page 28937.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to it Fourth Further Notice of Proposed Rulemaking regarding whether or not to modify FCC Form 323-E, the Ownership Report filed by noncommercial educational (NCE) licensees of AM, FM, and TV broadcast stations, to obtain gender, race, and ethnicity data. This 4thFNPRM is FCC 09-33 in MB Docket Nos. 07-294, 06-121, 02-277 and 04-228, and MM Docket Nos. 01-235, 01-317, and 00-244. See, public notice DA 09-1195, and notice in the Federal Register, May 27, 2009, Vol. 74, No. 100, at Pages 25205-25208.

Deadline to submit comments to the National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) regarding its SP 800-16 Rev. 1 [157 pages in PDF] titled "Information Security Training Requirements: A Role- and Performance-Based Model (DRAFT)".

The House will not meet the week of June 29 through July 3.

The Senate will not meet the week of June 29 through July 3. See, Senate calendar.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its public notice regarding commercial programming on school buses. This public notice is DA 09-913 in MB Docket No. 09-68.

6/19. The Center for Democracy and Technology (CDT) released a report [5 pages in PDF] titled "Privacy and the White House Cyberspace Policy Review".

6/19. The Federal Communications Commission (FCC) filed its brief [108 pages in PDF] with the U.S. Court of Appeals (DCCir) in Core Communications v. FCC, petitions for review of its November 5, 2008, order on remand explaining its authority for its intercarrier compensation rules for internet bound traffic. This item is its Order on Remand and Report and Order and Further Notice of Proposed Rulemaking [430 pages in PDF] adopted and released November 5, 2008. It is FCC 08-262 in CC Docket No. 96-98. This case is Core Communications, Inc. et al. v. FCC and USA, U.S. Court of Appeals for the District of Columbia, App. Ct. Nos. 08-1365, etc., petitions for review of a final order of the FCC.

6/18. The U.S. Court of Appeals (FedCir) issued its opinion [PDF] in McZeal v. Sprint Nextel, affirming the District Court's dismissal of Alfred McZeal's complaint alleging patent and trademark infringement for lack of prosecution. This case is Alfred McZeal v. Sprint Nextel Corporation, et al., U.S. Court of Appeals for the Federal Circuit, App. Ct. No. 2008-1374, an appeal from the U.S. District Court for the Southern District of Texas, D.C. No. 06-CV-1775.

6/18. The European Competition Commission released a report [8 pages in PDF] on its regulation of mergers, and particularly the allocation of cases between the Commission and member states. See also, release summarizing the report.

6/17. The American Intellectual Property Law Association (AIPLA) filed an amicus curiae brief [PDF] with the U.S. Court of Appeals (FedCir) in Tafas v. Doll, urging the Court to grant rehearing en banc. This case pertains to the rulemaking authority of the U.S. Patent and Trademark Office (USPTO). See, the Court of Appeals' March 20, 2009, divided opinion [55 pages in PDF], which is also reported at 559 F.3d 1345.

6/16. The National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) released its draft NIST IR 7502 [42 pages in PDF] titled "The Common Configuration Scoring System (CCSS): Metrics for Software Security Configuration Vulnerabilities". The deadline to submit comments is July 17, 2009.

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