8/28. The U.S. Court of Appeals (DCCir) issued its opinion [21 pages in PDF] in Comcast v. FCC, a challenge by Comcast and others to the Federal Communications Commission's (FCC) rule that capped at 30% all subscribers the market share any single cable television operator may serve.

The Court of Appeals held that the rule is arbitrary and capricious, granted the petition for review, and vacated the rule.

Comcast filed with the Court of Appeals a petition for review of the FCC's Fourth Report and Order [96 pages in PDF], adopted on December 18, 2007, and released on February 11, 2008, in its proceeding titled, in part, "In the Matter of the Commission's Cable Horizontal and Vertical Ownership Limits". This R&O is FCC 07-219 in MM Docket No. 92-264, et seq.

The FCC issued this Fourth R&O, belatedly, in response to the Court of Appeals' 2001 opinion in Time Warner Entertainment Co. v. FCC, 240 F.3d 1126.

The National Cable and Telecommunications Association (NCTA), Time Warner, and other intervened in support of Comcast.

The Court of Appeals first noted that "A cable operator faces competition primarily from non-cable companies, such as those providing DBS service and, increasingly, telephone companies providing fiber optic service."

It concluded that the FCC "has failed to demonstrate that allowing a cable operator to serve more than 30% of all cable subscribers would threaten to reduce either competition or diversity in programming. First, the record is replete with evidence of ever increasing competition among video providers: Satellite and fiber optic video providers have entered the market and grown in market share since the Congress passed the 1992 Act, and particularly in recent years. Cable operators, therefore, no longer have the bottleneck power over programming that concerned the Congress in 1992. Second, over the same period there has been a dramatic increase both in the number of cable networks and in the programming available to subscribers."

The Court continued that "In view of the overwhelming evidence concerning ``the dynamic nature of the communications marketplace,´´ 47 U.S.C § 533(f)(2)(E), and the entry of new competitors at both the programming and the distribution levels, it was arbitrary and capricious for the Commission to conclude that a cable operator serving more than 30% of the market poses a threat either to competition or to diversity in programming."

The Court continued that the FCC's "dereliction in this case is particularly egregious", because the FCC failed to heed its instructions in the 2001 Time Warner opinion.

However, the Court of Appeals did not state that during the tenure of Kevin Martin as Chairman of the FCC, the FCC, and Martin in particular, frequently acted with malice towards the cable industry. It is only the function of the Court to decide the case or controversy before it.

The Court then concluded that the appropriate remedy is to vacate the order.

Judge Randolph wrote a concurring opinion in which he argued that the Administrative Procedure Act (APA) requires that any order found to be arbitrary and capricious, or unlawful, be vacated.

The Court of Appeals did not decide the issue of whether the FCC's rule violated the First Amendment of the Constitution.

FCC Chairman Julius Genachowski stated in a release that "As part of the Cable Act, Congress required the Commission to adopt horizontal ownership limits to enhance effective competition in the cable television marketplace. The FCC staff is currently reviewing the Court’s decision with respect to the limit previously adopted and the Commission will take this decision fully into account in future action to implement the law."

Kyle McSlarrow, head of the NCTA, stated in a release that "We applaud the court's decision to reject an unnecessary rule that can no longer be justified in a market where consumers are enjoying robust competition that is producing a wide variety of world class services at affordable prices.  Today's decision is further affirmation that consumers are benefitting from a vibrant and competitive video marketplace that has undergone dramatic change and is providing more choice and better value than ever before."

Ken Ferree, head of the Progress & Freedom Foundation (PFF), stated in a release, "All I can say is thank goodness we have the DC Circuit as a backstop of rationality when the administrative agencies run amok. The FCC's latest effort to impose a national cable cap was nothing more than ``abracadabra -- here's the limit.´´ That's no way to run a government." See also, amicus brief filed by the PFF.

This case is Comcast Corporation v. FCC and USA, U.S. Court of Appeals for the District of Columbia, App. Ct. No. 08-1114, a petition for review of a final order of the FCC. Judge Ginsburg wrote the opinion of the Court of Appeals, in which Judge Kavanaugh joined. Judge Randolph wrote a concurring opinion.

8/26. The U.S. Court of Appeals (3rdCir) issued an opinion [15 pages in PDF] in Nunez v. Pachman, a Section 1983 case involving the federal Constitutional right to privacy. The Court of Appeals affirmed the District Court's summary judgment for the government defendants.

The Court of Appeals held that there is no cognizable privacy right under the federal Constitution in expunged criminal records, including arrest records, even if a state statute recognizes such an interest.

This is not a 4th Amendment search and seizure case in which a person asserts that an unreasonable search has taken place that infringed upon a reasonable expectation of privacy. Nor is this an invasion of privacy tort action to which a state law privacy standard would apply. This is a Section 1983 action resting upon the assertion that privacy rights protected by the due process clause of the 14th Amendment were violated.

42 U.S.C. § 1983 provides in part that "Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress ..."

Nunez filed a complaint in U.S. District Court (DNJ) against the City of Union City (a political subdivision of the state of New Jersey), and two of its officials, alleging violation of § 1983, based upon violation of his right to privacy, in connection with their disclosure of his arrest record in violation of a state expungement order.

The District Court granted summary judgment to the state. This appeal followed.

The Court of Appeals affirmed. First, the Court reasoned that even if a court orders expungement, the record remains public. It wrote that "prior to expungement, a criminal record is publicly available for a minimum period of ten years under New Jersey law." In addition, "News accounts of a defendant’s criminal acts, moreover, may persist after obliteration of formal records. Accordingly, this information is never truly private." (Footnote omitted.)

Second, the Court held that the federal Constitution only protects against public disclosure of "highly personal matters" representing the "most intimate aspects of human affairs".

The Court added that "the federal right of privacy is significantly narrower than the right of privacy protected by state tort law".

This case is Francisco Nunez v. Martin Pachman, et al., U.S. Court of Appeals for the 3rd Circuit, App. Ct. No. 08-3314, an appeal from the U.S. District Court for the District of New Jersey, D.C. No. 06-cv-05519, Judge Faith Hochberg presiding. Judge Rendell wrote the opinion of the Court of Appeals, in which Judges Fuentes and Roth joined.

Disclosure. TLJ has received and rejected requests, based upon privacy arguments, to remove news stories from the TLJ web site that cover indictments and/or criminal convictions in technology related cases.

8/31. The U.S. Court of Appeals (6thCir) issued its divided opinion [10 pages in PDF] in Palnik v. Westlake Entertainment, a copyright infringement case involving the issue of personal jurisdiction. The Court of Appeals affirmed the District Court's dismissal of the complaint for lack of personal jurisdiction.

Elijah Aaron Palnik is a musician and copyright holder. He filed a complaint in U.S. District Court (SDOhio) against Cineville, LLC and Picture Entertainment Corporation (PEC), the producers of a movie titled "Steal Me", alleging that they used two of his songs without permission. (He also named as defendants Amazon, Blockbuster, and Westlake Entertainment, distributors of the movie; however, they settled with Palnik.)

Cineville and PEC are California based businesses. They moved to dismiss for lack of personal jurisdiction. The parties conducted no discovery on the issue. Hence, the courts ruled on the basis of the allegation in the complaint that Cineville and PEC "have offered for sale and rental, and have distributed and continue to distribute, through sale, rental or otherwise substantial numbers of copies of the Infringing Work throughout the United States, including in the Southern District of Ohio".

Both the District Court and the majority of the Court of Appeals concluded that this is insufficient to confer jurisdiction upon the Ohio court over the California defendants.

This case is Elijah Aaron Palnik v. Westlake Entertainment, Inc., et al., U.S. Court of Appeals for the 6th Circuit, App. Ct. No. 09-3062, an appeal from the U.S. District Court for the Southern District of Ohio. Judge Boggs wrote the opinion of the Court of Appeals, in which Judge Rogers joined. Judge White wrote a short dissent. The Court of Appeals designated this opinion as "Not Recommended for Full Text Publication".

Tech Law Journal publishes a free access web site and a subscription e-mail alert. The basic rate for a subscription to the TLJ Daily E-Mail Alert is $250 per year for a single recipient. There are discounts for subscribers with multiple recipients.

Free one month trial subscriptions are available. Also, free subscriptions are available for journalists, federal elected officials, and employees of the Congress, courts, and executive branch. The TLJ web site is free access. However, copies of the TLJ Daily E-Mail Alert are not published in the web site until two months after writing.

For information about subscriptions, see subscription information page.

Tech Law Journal now accepts credit card payments. See, TLJ credit card payments page.

TLJ is published by David Carney
Contact: 202-364-8882.
carney at techlawjournal dot com
P.O. Box 4851, Washington DC, 20008.

Privacy Policy
Notices & Disclaimers
Copyright 1998-2009 David Carney. All rights reserved.

The House is scheduled to return from its August recess. It will meet at 2:00 PM for legislative business. It will consider numerous non-technology items under suspension of the rules. Votes will be postponed until 6:30 PM. See, Rep. Hoyer's schedule for week of September 7.

The Senate is scheduled to return from its August recess at 2:00 PM. It will resume consideration of S 1023 [LOC | WW] , the "Travel Promotion Act of 2009". See, Senate calendar.

9:30 - 11:30 AM. The American Enterprise Institute (AEI) will host a panel discussion titled "Sarbanes-Oxley and the Financial Crisis". The speakers will be Newt Gingrich (AEI), Hans Bader (Competitive Enterprise Institute), Harvey Pitt (Kalorama Partners), Alex Pollack (AEI), and Kenneth Green (AEI). See, notice. Location: AEI, 1150 17th St., NW.

12:15 - 1:30 PM. The Federal Communications Bar Association's (FCBA) Mass Media Committee will host a brown bag lunch titled "MMTC Radio Rescue - Petition for Rulemaking and Promoting Diversity". The speakers will be David Honig (Minority Media and Telecommunications Council), Melodie Virtue (Garvey Schubert Barer), Frank Jazzo (Fletcher Heald & Hildreth), and Mark Lipp (Wiley Rein). Most FCBA events are not open to the public. Location: National Association of Broadcasters, 1771 N St., NW.

Deadline to submit comments to the Federal Communications Commission (FCC) regarding ten year old rules to be reviewed pursuant to Section 610 of the Regulatory Flexibility Act of 1980, which is codified at 5 U.S.C. § 610. See, notice in the Federal Register, July 7, 2009, Vol. 74, No. 128, at Pages 32093-32102.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its notice of proposed rulemaking (NPRM) regarding authorizing channels with bandwidths of as much as 30 MHz in the 6525-6875 MHz band, and allowing conditional authority on additional channels in the 21.8-22.0 GHz and 23.0-23.2 GHz band. The FCC adopted and released this NPRM [22 pages in PDF] on June 29, 2009. It is FCC 09-58 in WT Docket No. 09-114 and RM 11417. See, notice in the Federal Register, July 22, 2009, Vol. 74, No. 139, at Pages 36134-36139.

Effective date of the Federal Communications Commission's (FCC) rules changes that extend the telecommunications carrier discontinuance rules to providers of interconnected VOIP service. The FCC adopted and released its Report and Order [45 pages in PDF] on May 13, 2009. This item is FCC 09-40 in WC Docket No. 04-36. See, notice in the Federal Register, August 7, 2009, Vol. 74, No. 151, at Pages 39551-39563.

Effective date of the Federal Communications Commission's (FCC) rules changes that govern petitions for forbearance. The FCC adopted its Report and Order [46 pages in PDF] on June 26, 2009, and released the text on June 29, 2009. This item is FCC 09-56 in WC Docket No. 07-267. See, notice in the Federal Register, August 6, 2009, Vol. 74, No. 150, at Pages 39219-39228.

The House will meet at 10:00 AM for legislative business. It will consider numerous non-technology items under suspension of the rules. See, Rep. Hoyer's schedule for week of September 7.

10:00 AM. The Senate Judiciary Committee (SJC) will hold a hearing titled "Strengthening Forensic Science in the United States". It will cover, among other topics, computer forensics. See, notice. Location: Room 226, Dirksen Building.

10:30 AM. The House Judiciary Committee's (HJC) Subcommittee on the Constitution, Civil Rights, and Civil Liberties will hold a hearing on HR 3162 (107th Congress), the "USA PATRIOT Act", as amended. Title II of this bill pertains to searches and seizures, electronic surveillance and access to data. See, notice. Location: Room 2141, Rayburn Building.

12:15 - 1:30 PM. The Federal Communications Commission's (FCC) Office of Strategic Planning and Policy (OSPP) will host an event titled "Opportunity to Help Shape FCC Data Practices and Follow-up to Access to Government's 2009 Survey on FCC Transparency and Openness". The speakers will include Paul de Sa (Chief of the OSPP), Chris Bjornson, Michelle Cohen, Peter Corea, and Howard Weiss. The Federal Communications Bar Association (FCBA) states that this is an FCBA event. Location: Covington & Burling, 12th floor, 1201 Pennsylvania Ave., NW.

2:30 PM. The Senate Judiciary Committee (SJC) will hold a hearing on the nominations of Joseph Greenaway (to be a Judge of the U.S. Court of Appeals for the 3rd Circuit), Roberto Lange (USDC for the District of South Dakota), Irene Berger (USDC for for the Southern District of West Virginia), and Charlene Honeywell (USDC for the Middle District of Florida). See, notice. Location: Room 226, Dirksen Building.

6:00 PM. The Federal Communications Bar Association (FCBA) will host an event titled "CLE Seminar on Lobbying Rules for a New Administration". Most FCBA events are not open to the public. Location: Wiley Rein, 1776 K St., NW.

Deadline to submit comments to the Department of the Treasury's Financial Crimes Enforcement Network (FinCEN) in response to its notice of proposed rulemaking regarding expanding the definition of money services businesses. See, notice in the Federal Register, May 12, 2009, Vol. 74, No. 90, at Pages 22129-22142.

The House will meet at 10:00 AM for legislative business. It will consider numerous non-technology items under suspension of the rules. See, Rep. Hoyer's schedule for week of September 7.

8:15 AM - 12:45 PM. The U.S. China Economic and Security Review Commission will hold a hearing titled "China's Media and Information Controls -- The Impact in China and the United States". See, notice in the Federal Register, August 18, 2009, Vol. 74, No. 158, at Pages 41784-41785. Location: Room 562, Dirksen Building, Capitol Hill.

9:30 - 11:30 AM. The Free State Foundation (FSF) will host an event discuss and release a book titled "New Directions in Communications Policy". It is a collection of essays by Gerald Brock, Diane Disney, Richard Epstein, Randolph May, John Mayo, Bruce Owen, Glen Robinson, James Speta, Dennis Weisman, Steven Wildman, and Christopher Yoo. RSVP to Susan Reichbart at sreichbart at freestatefoundation dot org. Location: Murrow Room, National Press Club, 13th floor, 529 14th St., NW.

10:00 AM. The House Judiciary Committee (HJC) will hold a hearing titled "Competition and Commerce in Digital Books". See, notice. Location: Room 2141, Rayburn Building.

10:00 AM. The House Commerce Committee's (HCC) Subcommittee on Communications, Technology, and the Internet will hold a hearing titled "Oversight of the American Recovery and Reinvestment Act:  Broadband, Part 2". The witnesses will be Larry Strickling (NTIA) and Jonathan Adelstein (RUS). See, notice. Location: Room 2123 Rayburn Building.

10:00 AM. The Senate Judiciary Committee (SJC) will hold an executive business meeting. The agenda again includes consideration of HR 985 [LOC | WW] and S 448 [LOC | WW], both titled the "Free Flow of Information Act of 2009". These bills have been on many previous agendas. The agenda also includes consideration of the nominations of Beverly Martin (to be a Judge of the U.S. Court of Appeals for the 11th Circuit), Jeffrey Viken (USDC/South Dakota), Neil MacBride (U.S. Attorney for the Eastern District of Virginia), Peter Neronha (U.S. Attorney for the District of Rhode Island), Daniel Bogden (U.S. Attorney for the District of Nevada), and Dennis Burke (U.S. Attorney for the District of Arizona). See, notice. Location: Room 226, Dirksen Building.

1:00 PM. The House Foreign Affairs Committee's (HFAC) Subcommittee on Asia, the Pacific and the Global Environment will hold a hearing titled "U.S.-China Relations: Maximizing the Effectiveness of the Strategic and Economic Dialogue". See, notice. Location: Room 2172, Rayburn Building.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) regarding additional spectrum for the Medical Device Radiocommunication Service. The FCC adopted this NPRM on March 17, 2009, and released the text on March 20, 2009. It is FCC 09-20 in ET Docket No. 09-36 and RM-11404. See, notice in the Federal Register, May 13, 2009, Vol. 74, No. 91, at Pages 22491-22498.

Rep. Hoyer's schedule for week of September 7 states that no votes are expected in the House.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Hewlett Packard v. Acceleron, App. Ct. No. 2009-1283. Location: Courtroom 402.

Deadline to submit comments to the National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) regarding its draft NIST IR 7581 [32 pages in PDF] titled "System and Network Security Acronyms and Abbreviations".

Deadline to submit comments to the National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) regarding its draft SP 800-73 -3 titled "Interfaces for Personal Identity Verification".

Deadline to submit nominations to the Department of Commerce's (DOC) National Oceanic and Atmospheric Administration (NOAA) for membership on the NOAA Science Advisory Board (SAB). See, notice in the Federal Register, July 16, 2009, Vol. 74, No. 135, at Page 34559.

RESCHEDULED FOR DECEMBER 1 and 2. The Federal Trade Commission (FTC) will hold the first in a series of workshops titled "Can News Media Survive the Internet Age? Competition, Consumer Protection, and First Amendment Perspectives". See, original FTC release, and notice of postponement.

12:30 - 2:00 PM. The Federal Communications Bar Association's (FCBA) Engineering and Technical Committee will host a brown bag lunch to discuss "upcoming activities and your suggestions for the new 2009-2010 year". For more information, contact Karen Higa at 202-974-5764 or email to khiga at chadbourne dot com. Location: Chadbourne & Parke,1200 New Hampshire Ave., NW.

Deadline to submit comments to the Office of the U.S. Trade Representative (OUSTR) regarding the free trade agreement (FTA) between the U.S. and Korea. Representatives of the two nations signed this FTA back on June 30, 2007. Democrats in the Congress have declined to approve it. This FTA includes technology related provisions. See, text of the FTA, and sections regarding telecommunications [17 pages in PDF], electronic commerce [4 pages in PDF], and intellectual property rights [35 pages in PDF]. See, notice in the Federal Register, July 27, 2009, Vol. 74, No. 142, at Page 37084.

12:00 NOON. Deadline to submit comments to the Office of the U.S. Trade Representative (OUSTR) regarding the free trade agreement (FTA) between the U.S. and Columbia. Representatives of the two nations signed this FTA back on November 22, 2006, and amendments on June 28, 2007. Democrats in the Congress have declined to approve it. This FTA includes technology related provisions. See, notice in the Federal Register, July 29, 2009, Vol. 74, No. 144, at Pages 37759-37760.