6/22. The Supreme Court denied certiorari in AT&T Mobility v. Shorts, a case regarding removal jurisdiction of the federal courts. See, Orders List [10 pages in PDF] at page 2.

This lets stand the December 17, 2008, divided opinion [44 pages in PDF] of the U.S. Court of Appeals (4thCir).

This is a class consumer protection action in which AT&T Mobility (ATTM) sought to remove the action from state court to federal court. However, ATTM's assignee first sued Charlene Shorts in state court, and she then counterclaimed.

The Court of Appeals held that the District Court does not have removal jurisdiction under the general removal statutes or the Class Action Fairness Act (CAFA) because ATTM is a counterclaim defendant rather than a defendant.

Had Shorts initiated the litigation in state court, then ATTM could have removed the action to federal court.

Since phone companies, cable companies, satellite companies, and broadband service providers, or their assignees, initiate many legal actions against their customers, plaintiffs class action lawyers can take advantage of this counterclaim defendant exception to avoid traditional and CAFA removal jurisdiction.

For a more detailed discussion of this case and this issue, see story titled "4th Circuit Rejects AT&T's Effort to Remove Class Action" in TLJ Daily E-Mail Alert No. 1,875, December 17, 2008.

This case is AT&T Mobility LLC, et al. v. Charlene Shorts, et al., Supreme Court of the U.S., Sup. Ct. No. 08-1156, a petition for writ of certiorari to the U.S. Court of Appeals for the 4th Circuit, App. Ct. No. 08-2188. The Court of Appeals heard an appeal from the U.S. District Court for the Northern District of West Virginia. See also, Supreme Court docket.

6/22. The U.S. Court of Appeals (2ndCir) issued its opinion [PDF] in Cablevision v. FCC, denying the petition for review of the FCC's order directing Cablevision to carry the signal of television station WRNN pursuant to 47 U.S.C. § 534(a)-(b) & (h)(1)(C).

Cablevision is a cable operator in the New York City area. WRNN is an informercial and home shopping broadcaster, with minimal local content, that games the Cable Act's must carry provisions.

The must carry provisions of the 1992 Cable Television Consumer Protection and Competition Act, which are codified at Section  534, require cable operators, such as Cablevision, to transmit, over their cable systems, the signals of certain broadcast stations operating in the same market, subject to a cap of one third of the cable operators channels.

This is compelled speech regulatory regime. However, the Supreme Court held in its 1994 divided opinion in Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622, that this does not violate the First Amendment. See also, the Supreme Court's 1997 opinion in Turner Broadcasting System, Inc. v. FCC, 520 U.S. 180. These opinions are also sometimes referred to as Turner I and Turner II.

The FCC has determined that the New York market includes the five boroughs of the city, neighboring areas of Long Island, Connecticut, New Jersey, and upstate New York, and some areas in Pennsylvania. Cablevision operates in this market. WRNN broadcasts in this market.

The statute also requires the FCC to consider market modification requests. Cablevision first petitioned to exclude a number of communities from the markets of several local broadcast stations, including WRNN, in 1996. Ultimately, the FCC included certain Long Island communities in WRNN's market. Cablevision must carry WRNN on Long Island.

Cablevision brought the present petition for review, challenging the FCC's analysis of the statute, and arguing that its application of the market modification provision violated the First Amendment and the takings clause of the Fifth Amendment.

The Court of Appeals denied the petition for review.

It wrote that "We think that the Turner cases do not foreclose the possibility of a successful as-applied First Amendment challenge to the 1992 Cable Act’s market modification provisions. In this case, however, Cablevision has failed to demonstrate that the FCC applied the market modification provision unconstitutionally."

This case is Cablevision Systems Corporation v. FCC and USA, U.S. Court of Appeals for the 2nd Circuit, App. Ct. No. 07-5553-ag, an appeal from the U.S. District Court for the Southern District of New York, Judge John Walker wrote the opinion of the Court of Appeals, in which Judges Cabranes and Raggi joined.

6/22. The Department of Justice (DOJ) announced in a release that Alan M. Ralsky, John S. Bown, and others enters guilty pleas in U.S. District Court (EDMich).

In January of 2008 the District Court unsealed an indictment that charged Ralsky, Bown and others with violation of the federal Controlling the Assault of Non-Solicited Pornography and Marketing Act (CAN-SPAM Act), the federal Computer Fraud and Abuse Act (CFAA), and other federal laws, but not any federal securities laws, in connection with the operation of an e-mail based securities pump and dump operation.

See also, story titled "DOJ Prosecutes Operators of Pump and Dump Securities Scheme Under CAN-SPAM and CFAA" in TLJ Daily E-Mail Alert No. 1,695, January 4, 2008.

The CAN-SPAM Act is codified at 18 U.S.C. § 1037. The CFAA is codified at 18 U.S.C. § 1030.

The U.S. Attorney for the Eastern District of Michigan, Terrence Berg, stated that "Ralsky, his son-in-law Scott Bradley, and three of their co-conspirators stand convicted for their roles in running an international spamming operation that sent billions of illegal e-mail advertisements to pump up Chinese `penny´ stocks and then reap profits by causing trades in these same stocks while others bought at the inflated prices. Using the Internet to manipulate the stock market through spam e-mail campaigns is a serious crime, and this case serves notice that federal law enforcement has the both the capability and the will to successfully investigate, prosecute and punish such cybercrimes."

The DOJ added that "Ralsky served as the chief executive officer and primary deal maker for the spam e-mail operation."

Ralsky and Bradley pled guilty to wire fraud, money laundering, violation of the CAN-SPAM Act, and other crimes.

The DOJ release states that "Bown, who was chief executive officer of an Internet services company, GDC Layer One, served as the chief technology officer for the spam e-mail operation."

Bown pled guilty to conspiracy to commit wire fraud, mail fraud and to violate the CAN-SPAM Act. He also pled guilty to conspiring to commit computer fraud by creating a botnet.

Botnet is a slang term of recent origin derived from the words robot network. It is used to describe a collection of software robots that reside on a collection of compromised computers, almost always without the authority or knowledge of the owners or operators, that are controlled remotely for various nefarious purposes. The compromised computers are often referred to as zombies.

There is another pending case in which the DOJ is using the computer hacking statute to prosecute spammers -- U.S.A. v. Amir Shah, in the U.S. District Court for the Western District of Missouri. See also, story titled "DOJ Obtains Indictment of Spammers under §§ 1030 and 1037" in TLJ Daily E-Mail Alert No. 1,933, April 29, 2009.

6/18. The House amended an passed HR 2847 [LOC | WW], the "Commerce, Justice, Science, and Related Agencies Appropriations Act by a vote of 259-157. See, Roll Call No. 408.

It was a largely party line vote. Democrats voted 235-8. Republicans voted 24-149.

The Senate Appropriations Committee's (SAC) Subcommittee on Commerce, Justice, Science and Related Agencies is scheduled to mark up the bill on Wednesday, June 24, 2009, at 2:30 PM. The full Committee is scheduled to mark up the bill on Thursday, June 25, 2009, at 3:00 PM.

Department of Commerce. This House passed version of this bill appropriates for the Bureau of Industry and Security (BIS), which regulates exports and related matters, $100,342,000.

The House bill appropriates for the National Telecommunications and Information Administration (NTIA) $19,999,000 for salaries and expenses and $20,000,000 for grants for construction of public telecommunications facilities, pursuant to 47 U.S.C. § 392.

This bill appropriates for the U.S. Patent and Trademark Office (USPTO) $1,930,361,000, subject to some budgetary smoke and mirrors.

The USPTO is actually funded from user fees. The bill provides that if fees fall short of $1,930,361,000, the appropriation is reduced accordingly. And, if fees exceed $1,930,361,000, the first $100,000,000 goes to fund the USPTO. Any fees collected above that are treated as taxes, and diverted to subsidize other government programs.

The bill appropriates to the National Institute of Standards and Technology (NIST) $510,000,000 for expenses, $124,700,000 for the Hollings Manufacturing Extension Partnership, $69,900,000 for the Technology Innovation Program, and $76,500,000 for construction of research facilities.

Department of Justice. This bill also appropriates funds for the Department of Justice (DOJ). However, it lacks detail as to certain technology related programs. For example, there is no section or line item for the Computer Crimes and Intellectual Property Section (CCIPS).

The bill appropriates $163,170,000 for the Antitrust Division. It adds, "Provided, That notwithstanding any other provision of law, fees collected for premerger notification filings under the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (15 U.S.C. 18a), regardless of the year of collection (and estimated to be $102,000,000 in fiscal year 2010), shall be retained and used for necessary expenses in this appropriation, and shall remain available until expended: Provided further, That the sum herein appropriated from the general fund shall be reduced as such offsetting collections are received during fiscal year 2010, so as to result in a final fiscal year 2010 appropriation from the general fund estimated at $61,170,000." (Parentheses in original.)

It appropriates $87,938,000 for the National Security Division (NSD).

It adds that "None of the funds made available in this Act may be used to authorize or issue a national security letter in contravention of any of the following laws authorizing the Federal Bureau of Investigation to issue national security letters: The Right to Financial Privacy Act; The Electronic Communications Privacy Act; The Fair Credit Reporting Act; The National Security Act of 1947; USA PATRIOT Act; and the laws amended by these Acts."

It appropriates $7,718,741,000 for the Federal Bureau of Investigation (FBI).

It appropriates $205,143,000 "For the costs of developing and implementing a nation-wide Integrated Wireless Network supporting Federal law enforcement communications, and for the costs of operations and maintenance of existing Land Mobile Radio legacy systems".

Science. The bill appropriates $7,154,000 for the Office of Science and Technology Policy (OSTP).

The bill appropriates for the National Science Foundation (NSF) $5,642,110,000 for expenses, $114,290,000 for "acquisition, construction, commissioning, and upgrading of major research equipment, facilities, and other such capital assets", $862,900,000 for "education and human resources", $299,870,000 for "agency operations and award management", $4,340,000 for the National Science Board (NSB), and $13,000,000 for the NSF's Office of the Inspector General (OIG)

USTR. The bill appropriates $48,326,000 for the Office of the U.S. Trade Representative (OUSTR). It also contains substantive law provisions. For example, it provides that "negotiations shall be conducted within the World Trade Organization to recognize the right of members to distribute monies collected from antidumping and countervailing duties".

The Department of Justice's (DOJ) Antitrust Division filed a complaint in U.S. District Court

Media executive John C. Malone will pay a $1.4 million civil penalty to settle charges that he violated premerger reporting and waiting requirements when he acquired Discovery Holding Co. voting securities, the Department of Justice announced today.

The Department's Antitrust Division, at the request of the Federal Trade Commission, filed a civil antitrust lawsuit today in U.S. District Court in Washington, D.C., against Malone for violating the notification requirements of the Hart-Scott-Rodino (HSR) Act of 1976. At the same time, the Department filed a proposed settlement that, if approved by the court, will settle the charges.

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The House will meet at 10:30 AM for morning hour, and at 12:00 NOON for legislative business. The House will consider several 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, and schedule for June 23.

The Senate will meet at 10:00 AM.

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.

2:30 PM. The Senate Appropriations Committee's (SAC) Subcommittee on Commerce, Justice, Science and Related Agencies will meet to mark up HR 2847 [LOC | WW], the "Commerce, Justice, Science, and Related Agencies Appropriations Act, 2010". Location: Room 138, 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, 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.

10:00 AM. The House Commerce Committee's (HCC) Subcommittee on Communications, Technology and the Internet will meet to mark up HR __, a bill to reauthorize the "Satellite Home Viewer Extension and Reauthorization Act Of 2004". Location: Room 2322, 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.

1:30 PM. The House Ways and Means Committee's (HWMC) Subcommittee on Trade will hold a hearing titled "Trade Advisory Committee System". See, notice. Location: Room B-318, Rayburn Building.

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. The Senate Appropriations Committee (SAC) will meet to mark up HR 2847 [LOC | WW], the "Commerce, Justice, Science, and Related Agencies Appropriations Act, 2010". Location: Room 106, Dirksen 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.

12:15 - 1:30 PM. The Federal Communications Commission (FCC) will host a brown bag lunch titled "Bridging the Gap: Transactions 101 -- An Introduction to Communications Transactions and Related FCC Oversight". The speakers will be Neil Dellar (FCC Office of the General Counsel) and Mark Brennan (Hogan & Hartson). For more information, contact Sarah Reisert at spreisert at hhlaw dot com. The Federal Communications Bar Association (FCBA) states that this is a FCBA event. Location: Hogan & Hartson, 555 13th St., NW.

Target date for the Office of the U.S. Trade Representative's (OUSTR) to announce modifications to the list of articles eligible for duty free treatment under the GSP resulting from the OUSTR's 2008 Generalized System of Preferences (GSP) Annual Review. See, notice in the Federal Register, September 12, 2008, Vol. 73, No 178, at Pages 53054-53056.