9/15. The Federal Communications Commission (FCC) filed its Supplemental Brief [52 pages in PDF] with the U.S. Court of Appeals (3rdCir) in CBS v. FCC, a long running case that relates to the FCC's efforts to impose huge fines on broadcasters for the airing of unscripted fleeting expletives.

The FCC now urges the 3rd Circuit to remand the case back to the FCC. The brief states that the FCC wants "to determine whether there is adequate record support for its prior conclusion that by televising the 2004 Super Bowl
halftime show, CBS ``failed to take adequate precautions to prevent the airing of unscripted indecent material.´´"

In the present case, the facts giving rise to the FCC's action involve CBS's 2004 disclosure of a woman's breast. CBS previously prevailed before the 3rd Circuit on its petition for review. However, on May 4, 2009, the Supreme Court vacated and remanded for further consideration in light of FCC v. Fox Television Stations, Inc." See, story titled "Supreme Court Vacates and Remands in FCC v. CBS" in TLJ Daily E-Mail Alert No. 1,934, May 5, 2009.

In both CBS v. FCC and Fox v. FCC, the Courts of Appeals held that the FCC's use of its new fleeting expletives policy is arbitrary and capricious under the Administrative Procedure Act (APA).

The Supreme Court thus vacated the July 21, 2008, opinion [PDF] of the U.S. Court of Appeals (3rdCir). See, story titled "3rd Circuit Overturns FCC's Breast Broadcast Fine" in TLJ Daily E-Mail Alert No. 1,797, July 22, 2009.

The Supreme Court issued its opinion [PDF] in FCC v. Fox on April 28, 2009. See, story titled "Supreme Court Reverses in FCC v. Fox" in TLJ Daily E-Mail Alert No. 1,932, April 28, 2009.

On March 15, 2006, the FCC released a forfeiture order [30 pages in PDF] that fined CBS $550,000 in connection with the performance of a singer named Janet Jackson in a broadcast music performance within a program titled "Super Bowl XXXVIII". That order is FCC 06-19. See, story titled "FCC Releases Indecency Orders" in TLJ Daily E-Mail Alert No. 1,332, March 20, 2006.

On April 14, 2006, CBS filed with the FCC a Petition for Reconsideration of Forfeiture Order. See, story titled "CBS Challenges FCC's Indecency Actions" in TLJ Daily E-Mail Alert No. 1,351, April 17, 2006.

On May 31, 2006, the FCC released its Order on Reconsideration [18 pages in PDF] denying that petition. That order is FCC 06-68. See, story titled "FCC Denies Petition for Reconsideration of CBS's Breast Broadcast Fine" in TLJ Daily E-Mail Alert No. 1,382, June 1, 2008.

This case is CBS, et al. v. FCC & USA, U.S. Court of Appeals for the 3rd Circuit, App. Ct. No. 06-3575, a petition for review of a final order of the FCC.

9/16. The House Judiciary Committee (HJC) approved HR 3570 [LOC | WW], the "Satellite Home Viewer Update and Reauthorization Act of 2009", or "SHVURA", by a vote of 34-0. See, HJC release.

Rep. John Conyers (D-MI) introduced this bill on September 15, 2009. The original cosponsors are Rep. Rick Boucher (D-VA), Rep. Hank Johnson (D-GA), and Rep. Debbie Schultz (D-FL).

Rep. Conyers stated in the House that this bill "modernizes, simplifies and improves the compulsory copyright licenses governing the retransmission of distant television signals by cable and satellite television operators". See, Congressional Record, September 15, 2009, at page E2276.

He added that "Both the cable and satellite industries rely on these licenses to provide television programming to their customers. The satellite Section 119 license will expire on December 31, unless we act. This legislation renews the satellite license for five years." See, 17 U.S.C. § 119.

He also stated that this bill "reflects the recent transition to digital television by clarifying that the compulsory licenses apply to digital streams instead of just analog streams, and by providing for an updated technological model to predict the eligibility of satellite subscribers for distant signals under the Section 119 license. It also takes into account the advent of multicasting, which is a direct result of the new capacity created by the transition to digital signals and was not contemplated by the previous licensing schemes."

"One important purpose of the Section 119 license is to ensure that consumers who live in markets that may be missing certain network affiliates can receive the full complement of network programming. The new language clarifies the ways in which the license can be used by satellite companies to accomplish this."

Finally, Rep. Conyers stated that "Changes in the cable television marketplace have resulted in confusion over the proper way to calculate royalties under the Section 111 cable compulsory license. This so-called ``phantom signal´´ uncertainty has chilled both the cable and content industries, creating legal ambiguity that deters investment and growth, and threatens to raise cable price and disrupt cable service. This legislation alters the way the royalty rates are calculated to restore certainty to the marketplace and make the compensation for copyrighted content more fair."

HR 2994 [LOC | WW], the "Satellite Home Viewer Update and Reauthorization Act", is a different bill introduced by Rep. Boucher on June 23, 2009, and referred to the House Commerce Committee (HCC).

Also, on September 15, 2009, Sen. Patrick Leahy (D-VT) and others introduced S 1670 [LOC | WW], the "Satellite Television Modernization Act", in the Senate.

Gigi Sohn, head of the Public Knowledge, stated in a release praising HR 3570 that it "will allow for full competition from satellite providers to incumbent cable and telephone companies in rural areas. Among other provisions, the bill makes certain that consumers everywhere will have their full set of broadcast network stations."

She added that the HJC "also rejected the efforts of the broadcast networks and preserved the compulsory license for satellite providers, which helps to make programming become more readily available and less expensive to consumers".

See also, letter from Kyle McSlarrow, head of the National Cable and Telecommunications Association (NCTA), to the HJC expressing and explaining the NCTA's support for HR 3570, and similar letter to the SJC in support of S 1670.

He wrote that "We strongly support the introduced bill’s retention of the current compulsory license framework, especially in the absence of a review and reform of other important Communications Act provisions such as retransmission consent that cannot be separated from the copyright royalty regime." He also praised the bills' handling of the phantom signals issue.

9/15. The Federal Trade Commission (FTC) announced that it will host a public workshop titled "Exploring Privacy" on December 7, 2009. The deadline to submit requests to participate as a panelist is October 30. The FTC stated that "privacy challenges posed by the vast array of 21st century technology and business practices that collect and use consumer data. Such practices include social networking, cloud computing, online behavioral advertising, mobile marketing, and the collection and use of information by retailers, data brokers, third-party applications, and other diverse businesses. The goal of the roundtables is to determine how best to protect consumer privacy while supporting beneficial uses of the information and technological innovation." See, FTC release and event web page.

9/15. The National Institute of Standards and Technology (NIST) published a notice in the Federal Register regarding transfer of NIST developed technology. This notice states that the NIST is "interested in working with regional, state and local economic development organizations, technology incubation centers, technology-oriented public-private business development initiatives and other organizations and partnerships to facilitate the transfer of technologies developed within the NIST Labs to the private sector through potential licensing and/or collaboration". There is no grant funding. There are no deadlines. See, Federal Register, September 15, 2009, Vol. 74, No. 177, at Page 47208.

9/11. Christine Varney, the Assistant Attorney General in charge of the Department of Justice's (DOJ) Antitrust Division, gave a speech in Fiesole, Italy, titled "Procedural Fairness". She addressed in cursory fashion procedure for Antitrust Division civil investigations, including electronic discovery, timing agreements with merging parties on a review schedule for the investigation, and the DOJ's deliberative process and communications with parties. Finally, she discussed the filing of actions in the U.S. District Court.

9/3. The Federal Communications Commission (FCC) released the recommendations of its World Radiocommunication Conference Advisory Committee (WRC-11 Advisory Committee). See, public notice [2 pages in PDF], Attachment 1 [54 pages in PDF], and Attachment 2 [18 pages in PDF]. It is DA 09-1994 in IB Docket No. 04-286. Comments are due by September 25, 2009.

9/1. The Securities and Exchange Commission (SEC) filed a civil complaint [PDF] in the U.S. District Court (NDCal) against VeriFone and Paul Periolat alleging violation of federal securities law in connection with the reporting of inflated operating income. The complaint states that VeriFone "designs, markets and services transaction automatIon systems that enable secure electronic payments among conswners, merchants, and financial institutions". It alleges numerous violations of Section 13 of the Securities Exchange Act of 1934, which is codified at 15 U.S.C. § 78m. However, there is no Section 10b fraud allegation. The SEC stated in a release that "Without admitting or denying the Commission’s allegations, VeriFone consented to a permanent injunction against violations of the reporting, internal controls, and other provisions of the federal securities laws. Further, without admitting or denying the Commission’s allegations, Periolat consented to a permanent injunction against further violations of certain antifraud, reporting, internal controls, and other provisions of the federal securities laws, and to pay a $25,000 civil penalty." This case is SEC v. VeriFone Holdings Inc. and Paul Periolat, U.S. District Court for the Northern District of California, D.C. No. CV 09 4046.

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The House will meet at 10:00 AM for legislative business. See, Rep. Hoyer's schedule for week of September 14.

The Senate will meet at 9:30 AM. It will resume consideration of HR 2996 [LOC | WW], "Department of the Interior, Environment, and Related Agencies Appropriations Act, 2010".

9:30 AM. The Federal Communications Commission (FCC) will hold an event titled "Workshop: Online content, piracy, and the tradeoffs between availability that drives broadband adoption and content protection". See, FCC web page related to the drafting of a document titled "National Broadband Plan". Location: FCC, Commission Meeting Room, 445 12th St., SW.

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 Paul Fishman to be the U.S. Attorney for the District of New Jersey and Jenny Durkan to be the U.S. Attorney for the Western District of Washington. See, notice. Location: Room 226, Dirksen 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 Federal Communications Commission". See, notice. Location: Room 2123, Rayburn Building.

1:30 PM. The Federal Communications Commission (FCC) will hold an event titled "Workshop: Spectrum supply, demand, sources and innovation". See, FCC web page related to the drafting of a document titled "National Broadband Plan". Location: FCC, Commission Meeting Room, 445 12th St., SW.

2:00 PM. the Senate Judiciary Committee's (SJC) Subcommittee on Crime will hold a hearing on S 1551 [LOC | WW], the "Liability for Aiding and Abetting Securities Violations Act of 2009". See, notice. The bill would address the Supreme Court's 2008 opinion [33 pages in PDF] in Stoneridge Investment Partners v. Scientific-Atlanta, 522 U.S. 148. See also, stories titled "Supreme Court Rules in Stoneridge v. Scientific Atlanta" in TLJ Daily E-Mail Alert No. 1,701, January 16, 2008, "Supreme Court Grants Cert in Stoneridge Investment v. Scientific-Atlanta" in TLJ Daily E-Mail Alert No. 1,557, March 27, 2007, and "Supreme Court to Consider 10b Liability of Stock Issuers' Vendors" in TLJ Daily E-Mail Alert No. 1,625, August 21, 2007. Location: Room 226, Dirksen Building.

6:00 - 9:15 PM. The DC Bar Association will host an event titled "Privacy in Today's Workplace". The speakers will be Gerard Stegmaier (Wilson Sonsoni) and Charles Henter. The price to attend ranges from $89 to $129. Most DC Bar events are not open to the public. This event qualifies for continuing legal education (CLE) credits. See, notice. For more information, call 202-626-3488. Location: DC Bar Conference Center, 1101 K St., NW.

Deadline to submit comments to the National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) regarding its draft SP 800-38 E [7 pages in PDF] titled "Recommendation for Block Cipher Modes of Operation: The XTS-AES Mode for Confidentiality on Block-Oriented Storage Devices".

Rosh Hoshana begins at sundown.

Rep. Hoyer's schedule for week of September 14 states that "no votes are expected in the House".

Deadline to submit comments to the National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) regarding its draft NIST IR 7609 [65 pages in PDF] titled "Cryptographic Key Management Workshop Summary".

Rosh Hoshana.

9:30 AM - 12:00 NOON. The American Enterprise Institute (AEI) will host an event titled "Free Trade Agreements in Asia: Implications for Taiwan and the United States". The first panel is titled "The Taiwan-China ECFA: Implications for Taiwan and the United States". The speakers will be Philip Levy (AEI), Claude Barfield (AEI), Rupert Hammond-Chambers (U.S.-Taiwan Business Council), and Daniel Rosen (Peterson Institute for International Economics). The second panel is titled "Free Trade Proliferation in Asia: Economic and Strategic Implications". The speakers will be Dan Blumenthal (AEI), Ellen Frost (Peterson Institute for International Economics), and Ernest Preeg (Manufacturers Alliance/MAPI). See, notice. Location: AEI, 12th floor, 1150 17th St., NW.

6:00 - 8:15 PM. The Federal Communications Bar Association (FCBA) will host an event titled "Smart Grid 101: What is it and what are the latest policy and regulatory issues facing both government and industry in its implementation?". See, notice. This event qualifies for CLE credits. Prices vary. Location: Dow Lohnes, 1200 New Hampshire Ave., NW.

6:00 - 9:15 PM. The DC Bar Association will host an event titled "From the Ground Up: Fundamentals of Practice Before the D.C. Court of Appeals". The speakers will be Inez Reid, John Fisher, Rosanna Mason, and David Tedhams (all of the U.S. Court of Appeals), and Todd Kim (Office of the Attorney General). The price to attend ranges from $89 to $129. Most DC Bar events are not open to the public. This event qualifies for continuing legal education (CLE) credits. See, notice. For more information, call 202-626-3488. Location: DC Bar Conference Center, 1101 K St., NW.

7:30 - 9:30 PM. The New America Foundation (NAF) will host a lecture by Jonathan Lazar titled "Current Issues in Human-Computer Interaction and Public Policy". See, notice. Location: NAF, Suite 400, 1899 L St., NW.

9:30 AM. The U.S. Court of Appeals (DCCir) will hold oral argument in Cablevision Systems Corporation v. FCC, App. Ct. No. 07-1425. This is a petition for review of the FCC's order extending the exclusivity prohibition. See, FCC's brief [PDF]. Judges Sentelle, Griffith and Kavanaugh will preside. Location: 333 Constitution Ave., NW.

10:00 AM. The Federal Communications Commission's (FCC) Advisory Committee on Diversity for Communications in the Digital Age will meet. See, notice in the Federal Register, August 12, 2009, Vol. 74, No. 154, at Page 40595. Location: FCC, Commission Meeting Room, 445 12th St., SW.

10:30 AM - 12:00 NOON. The Information Technology and Innovation Foundation (ITIF) will host an event to release a study titled "Explaining International Health IT Leadership". The speakers will be Daniel Castro (ITIF), Hannu Hanhijarvi (Finland), and Christina Wanscher (Denmark). See, notice. Location: ITIF, Suite 610, 1101 K St., NW.

11:00 AM. The House Judiciary Committee's (HJC) Subcommittee on the Constitution, Civil Rights and Civil Liberties will hold a hearing titled "USA PATRIOT Act". See, notice. Location: Room 2141, Rayburn Building.

12:30 - 2:00 PM. The Federal Communications Bar Association's (FCBA) International Telecommunications Committee will host a brown bag lunch. Fernando Schulhof will discuss "the Brazilian telecoms market". Register by September 15 with Jennifer Ullman at Jennifer dot ullman at verizon dot com. Location: Verizon, 1300 I St., NW.

6:00 - 9:15 PM. The DC Bar Association will host an event titled "Beginner’s Guide to Publishing Law and Publishing Agreements". The speaker will be Gail Ross (Lichtman Trister & Ross). The price to attend ranges from $89 to $129. Most DC Bar events are not open to the public. This event qualifies for continuing legal education (CLE) credits. See, notice. For more information, call 202-626-3488. Location: DC Bar Conference Center, 1101 K St., NW.

10:00 AM. The Senate Judiciary Committee (SJC) will hold a hearing titled "Reauthorizing the USA PATRIOT Act: Ensuring Liberty and Security". The SJC will webcast this event. See, notice. Location: Room 226, Dirksen Building.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in I4i v. Microsoft, App. Ct. No. 2009-1504. This is a patent infringement case involving XML and Microsoft Word. Location: Courtroom 201.

1:00 - 4:00 PM. The U.S.-China Economic and Security Review Commission will hold one of a series of meetings to consider staff drafts of material for its 2009 Annual Report to Congress. See, notice in the Federal Register, August 5, 2009, Vol. 74, No. 149, at Pages 39145-39146. Location: Conference Room 231, Hall of States, 444 North Capitol St., NW.

9:00 AM - 3:00 PM. The National Telecommunications and Information Administration's (NTIA) Online Safety and Technology Working Group (OSTWG) will meet. See, notice in the Federal Register, September 8, 2009, Vol. 74, No. 172, at Pages 46099-46100. Location: Department of Commerce, Room 4830, 1401 Constitution Ave., NW.

10:00 AM - 4:00 PM. The U.S.-China Economic and Security Review Commission will hold one of a series of meetings to consider staff drafts of material for its 2009 Annual Report to Congress. See, notice in the Federal Register, August 5, 2009, Vol. 74, No. 149, at Pages 39145-39146. Location: Conference Room 231, Hall of States, 444 North Capitol St., NW.

Deadline to submit comments, or petitions to deny, to the Federal Communications Commission (FCC) in response to the applications of Caribbean Crossings Ltd. and Trinity Communications Ltd. for transfer of control pursuant to the Submarine Cable Landing Licensing Act and Section 214 of the Communications Act. Since the Bahamas is not a member of the World Trade Organization (WTO) the applicants seek an FCC determination that the Bahamas provides effective competitive opportunities to U.S. carriers. See, public notice [PDF]. It is DA 09-1856 in IB Docket No. 09-149.