9/24. Federal Communications Commission (FCC) Commissioner Robert McDowell gave a speech [5 pages in PDF] in Washington DC to the National Association of Black Owned Broadcasters (NABOB). He said that "efforts are underway to move forward on diversity initiatives".

Regarding advertisers that engage in "no urban/no Spanish" media buys, McDowell said that the FCC "does not have authority over advertisers or media buyers themselves. Instead, we must work through broadcasters".

He also said that "I have expressed my interest in working with Congress to explore the details of a new tax certificate program to promote broadcast ownership by economically disadvantaged businesses -- one designed to pass muster in court".

The legal obstacle to such a program would be the Supreme Court's 1995 opinion in Adarand Constructors v. Pena, which is reported at 515 U.S. 200, and its progeny.

He also discussed the FCC's inquiry regarding Arbitron's Portable People Meter (PPM). He said that "It's difficult to predict at this point what, if anything, the Commission may do next on the PPM reliability issue."

On September 4, 2008, the Federal Communications Commission's (FCC) Media Bureau released a Public Notice [3 pages in PDF] that announced and requested public comments on the PPM Coalition's (PPMC) September 2, 2008, Emergency Petition for Section 403 Inquiry [51 pages in PDF]. The FCC's Public Notice is DA 08-2048 in MB Docket No. 08-187.

9/24. The New America Foundation (NAF) released a short paper, and filed a substantially similar comment [2 pages in PDF] with the Federal Communications Commission (FCC), that advocate a "Broadband Truth-in-Labeling disclosure" for "broadband operators". The NAF seeks a requirement that "clarifies and adds meaning to the terms and conditions of the service being offered".

The NAF also seeks price regulation. It states that these disclosures should be backed by "service charge refunds or credits". The NAF also describes arbitration clauses as "highly objectionable or surprising", but does not propose to prohibit their inclusion in subscriber contracts.

This paper does not specify whether this should ultimately be included in an industry prepared set of voluntary standards, rules promulgated by the Federal Communications Commission (FCC), or Congressional statute.

The just filed comment does not reference any FCC proceeding numbers. However, the FCC published this comment with reference to FCC Docket Nos. 09-51 and 09-158. 09-51 is the number of the FCC's proceeding initiated by adoption on April 8, 2009, of a Notice of Inquiry (NOI) [59 pages in PDF] to assist the FCC in drafting its "National Broadband Plan" or "NBP". 09-158 is a number assigned on August 27, 2009, to a NOI [pages in PDF] in a proceeding titled "In the Matter of Consumer Information and Disclosure Truth-in-Billing and Billing Format IP-Enabled Services".

Moreover, the NAF submitted a joint comment [53 pages in PDF] back on June 8, 2009, in response to the NBP NOI in which it argued for a mandatory disclosure for broadband service providers. One thing that is new about the just released paper and comment is that they include a sample standardized disclosure form.

The NAF wrote in its June comment that "those offering network services should be obligated to provide real, useful information to consumers about what their service provides before the consumer makes a service choice. This information should include not only the maximum speed allowed, but more detailed information about likely average speeds, times of congestion, the extent a network is overprovisioned, and any minimum speed guarantees. Most importantly, while more technical details should be available to technology-savvy users, the basic information provided must be accessible to and understandable by the average customer. The average customer should be able to compare advertised speeds and terms of service with what he or she actually receives, and should have clear recourse where the provider does not deliver the promised service."

That comment also argued that "Broadband providers are increasingly being found using false advertising or for not being transparent in declaring their terms and services in an effort to lure customers."

It argues that the FCC "should require that broadband providers adhere to transparency in declaring their service contracts and abide by them in deployment of services".

Finally, it stated that "Disclosure should also extend to all forms of network management or monitoring which are used by a service provider. In those rare cases where a service provider may lawfully limit speeds, observe user activity, or in any way alter user communications, then these must be clearly and publicly disclosed. Further, unless such activity is necessary to the basic functioning of the network, the provider should be required to secure an affirmative, informed, “opt-in” consent from users. Critically, federal law must ensure that consent is real." (Footnotes omitted from quotations from June 8, 2009, comment.)

The NAF's Sascha Meinrath stated in a just issued release that "As the Federal Communications Commission creates a national broadband policy to drive affordable broadband deployment, a key facet of this plan will be empowering customers with the information they need to make informed choices among Internet service providers ... Truth in Broadband Advertising' is the key element that ensures that the general public can compare and choose their best broadband options."

9/24. Ron Kirk, head of the Office of the U.S. Trade Representative (USTR), stated in a release that "Today, we are following through on our commitment to ensure that American workers, farmers, ranchers, manufacturers, and producers have a fair chance to compete for business around the world, to sell more goods to global consumers, and to bring the benefits of our trade agreements back home. We are heightening USTR's focus on some of the most significant barriers that our exporters face, so that trade can be a more effective tool for restoring this country's economy."

The OUSTR has been required by statute, codified at 19 U.S.C. § 2241, since 1988 to prepare annual reports that identify other countries' trade barriers, and estimate the trade distorting impact of these barriers. This annual report is also known as the "National Trade Estimate Report on Foreign Trade Barriers".

On September 24, the OUSTR merely published a notice in the Federal Register requesting comments to assist it in preparing this annual report. See, Federal Register, September 24, 2009, Vol. 74, No. 184, at Pages 48811-48813.

Comments regarding sanitary and phytosanitary (SPS) measurea and standards related matters are due by November 4. Comments regarding all other barriers are due by November 18.

The statute requires the OUSTR to "identify and analyze acts, policies, or practices of each foreign country which constitute significant barriers to, or distortions of (i) United States exports of goods or services (including agricultural commodities; and property protected by trademarks, patents, and copyrights exported or licensed by United States persons), (ii) foreign direct investment by United States persons, especially if such investment has implications for trade in goods or services; and (iii) United States electronic commerce", and "make an estimate of the trade-distorting impact on United States commerce" of any such act, policy, or practice. (Parentheses in original.)

It also requires the OUSTR to "make an estimate, if feasible, of--
  (i) the value of additional goods and services of the United States,
  (ii) the value of additional foreign direct investment by United States persons, and
  (iii) the value of additional United States electronic commerce,
that would have been exported to, or invested in or transacted with, each foreign country during such calendar year if each of such acts, policies, and practices of such country did not exist."

9/24. The U.S. Court of Appeals (9thCir) issued an opinion [9 page in PDF] in USA v. Samueli, dismissing Samueli's appeal of two interlocutory orders for lack of jurisdiction.

Henry Samueli is a founder of Broadcom. This case pertains to stock option grants at that company. He entered a plea of guilty in June of 2008, pursuant to a combination charge and sentence bargain. This agreement between Samueli and prosecutors provided that he would plead guilty to one count of making a false statement (to the Securities and Exchange Commission) in violation of 18 U.S.C. § 1001, but not to securities fraud. The agreement also provided that he would serve five years probation, but no prison time, and pay $12,250,000 to the government.

The District Court rejected the agreement. Samueli did not withdraw his plea. Samueli brought the present appeal, without waiting to be sentenced, of the District Court's order denying his requests to file his objections to the presentence report (PSR) under seal and to hear his objections in camera, and its order rejecting the plea agreement.

The Court of Appeal held that the appeal of the first order was not timely, and the appeal of the second order is not reviewable. He must wait until after the District Court imposes sentence before he can bring his appeal of the rejection of the plea agreement.

This case is USA v. Henry Samueli, U.S. Court of Appeals for the 9th Circuit, App. Ct. No. 08-50417, an appeal from the U.S. District Court for the Central District of California, D.C. No. 8:08-cr-00156-CJC-1.

9/24. The Federal Bureau of Investigation (FBI) announced in a release that the United States has charged Hosam Maher Husein Smadi by criminal complaint with attempting to use a weapon of mass destruction in violation of 18 U.S.C. § 2332a(a)(2(A).

The affidavit of a FBI Supervisory Special Agent filed in support of the complaint provides details of Smadi's attempt to bomb an office tower in downtown Dallas, Texas. It also discloses how the FBI discovered Smadi, and some details regarding how it surveiled him.

The affidavit states that an undercover FBI employee found him "within an online group of extremists" of which the FBI employee was a part. Then, three FBI undercover employees frequently communicated, met and worked with Smadi, until his arrest.

The affidavit also states that Smadi used MSN Hotmail to communicate with one of the undercover FBI employees.

This case is USA v. Hosam Maher Husein Smadi, U.S. District Court for the Northern District of Texas, D.C. No. 3-09-MJ-286.

9/24. The Senate began its consideration of HR 3326 [LOC | WW], the "Department of Defense Appropriations Act, 2010", on September 24, 2009. This huge bill includes, like prior defense appropriations bills, a supercomputer protectionist clause. Section 8047 of the bill provides in full that "None of the funds in this Act may be used to purchase any supercomputer which is not manufactured in the United States, unless the Secretary of Defense certifies to the congressional defense committees that such an acquisition must be made in order to acquire capability for national security purposes that is not available from United States manufacturers." Also, Title 50, which pertains to "War and National Defense", at 50 U.S.C. § 2404, which pertains to "National Security Controls", provides for the regulation of the "export" of "supercomputers". And, Title 48 of the Code of Federal Regulations pertains to "Federal Acquisition Regulations System", and addresses supercomputers, at Section 225.7012.

9/24. Christine Varney, Assistant Attorney General in charge of the Antitrust Division, gave a speech in New York City titled "Our Progress Towards International Convergence". She said that there is "divergence in substantive rules and procedural approaches" to antitrust law among nations. She addressed three areas: merger reviews, single firm conduct, and remedies. She urged cooperation and collaboration.

9/24. The U.S. Court of Appeals (FedCir) issued its opinion [pages in PDF] in Kara Technology v. Stamps.com, a patent infringement and breach of nondisclosure agreement case. The defendant, Stamps.com, prevailed on both claims in the District Court. The Court of Appeals vacated the judgment of noninfringement and remanded, and reversed the judgment on the breach of contract claim and remanded. This case is Kara Technology, Inc. v. Stamps.com, Inc., U.S. Court of Appeals for the Federal Circuit, App. Ct. Nos. 2009-1027 and 2009-1028, appeals from the U.S. District Court for the Central District of California, D.C. No. 05-CV-1890, Judge Consuelo Marshall presiding.

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The House will meet at 9:00 AM for legislative business. It will consider the conference report on HR 2918 [LOC | WW], the "Legislative Branch Appropriations Act, 2010" and continuing resolution. See, Rep. Hoyer's schedule for week of September 21, and schedule for September 25.

The Senate will meet at 9:30 AM. It will resume consideration of HR 3326 [LOC | WW], the "Department of Defense Appropriations Act, 2010".

9:00 - 10:30 AM. The Progress & Freedom Foundation (PFF) will host a panel discussion titled "Next-Generation Parental Controls & Child Safety Efforts". The speakers will be Adam Thierer (PFF), Stephen Balkam (Family Online Safety Institute), Steve Crown (Microsoft), and Dane Snowden (CTIA). See, notice and registration page. Location, Room H-137, Capitol Building.

10:00 AM - 12:00 NOON. The Federal Communications Commission (FCC) will hold a workshop titled "Ten-Digit Numbering and E911 Requirements for VRS and IP Relay". See, notice. Location: FCC, Commission Meeting Room, 445 12th St., SW.

TIME AND TITLE CHANGE. 10:30 AM - 12:15 PM. The Information Technology and Innovation Foundation (ITIF) will host an event titled "End-to-End Arguments, Internet Innovation, and the Net Neutrality Debate". The speakers will be Richard Bennett (ITIF), John Day (Boston University Metropolitan College), Christopher Yoo (University of Pennsylvania law school), William Lehr (MIT), and David Farber (Carnegie Mellon University). See, notice. The ITIF will webcast this event. Light refreshments will be provided. Location: ITIF, Suite 610A, 1101 K St., NW.

12:15 - 1:30 PM. The Federal Communications Bar Association's (FCBA) Young Lawyers Committee will host a brown bag lunch titled "The Role of In-House Counsel". The speakers will be Eric Einhorn (Windstream Communications), Jerald Fritz (Allbritton Communications), Cristina Pauze (Time Warner Cable), and Richard Whitt (Google). For more information, contact Micah Caldwell at mcaldwell at fh-law dot com or Evan Morris at emorri05 at harris dot com. Location: Harris Corporation, Suite 650E, 600 Maryland Ave., SW.

12:30 - 2:00 PM. The New America Foundation (NAF) will host a brown bag lunch titled "Broadband Competition Policy Broadband Competition Policy: How Much Regulation is Enough?" The speakers will be Ben Scott (Free Press), Everett Ehrlich (ESC Company), Mark Cooper (Consumer Federal of America), Robert Atkinson (Information Technology & Innovation Foundation), and Michael Calabrese (NAF). See, notice. Drinks, but not lunch, will be provided. Location: Room 253, Russell Building.

Deadline to submit comments to the Federal Communications Commission (FCC) regarding 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.

Yom Kippur begins at sundown.

Yom Kippur.

9:00 - 10:30 AM. The Information Technology and Innovation Foundation (ITIF) will host an event titled "Benchmarking Leading Countries' National Innovation Policies". The speakers will be Rob Atkinson (ITIF), Stephen Ezell (ITIF), Debra Amidon (Entovation International) and Peter Westerstråhle (government of Finland). See, notice. The ITIF will webcast this event. Location: ITIF, 1101 K St., NW.

12:00 NOON - 1:00 PM. The Federal Communications Bar Association's (FCBA) Diversity Committee will host a brown bag lunch for planning purposes. For more information, contact Edgar Class at eclass at wileyrein dot com or 202-719-7504. Location: Wiley Rein, Conference Room 9E, 1750 K St., NW.

EXTENDED TO OCTOBER 16. Deadline to submit reply comments to the Copyright Office regarding its proposed rules regarding registration of copyright in online works. See, original notice in the Federal Register, July 15, 2009, Vol. 74, No. 134, at Pages 34286-34290, and extension notice in the Federal Register, September 22, 2009, Vol. 74, No. 182, at Page 48191. See also, story titled "Copyright Office Proposes New Rules for Registration of Online Only Works" in TLJ Daily E-Mail Alert No. 1,970, July 15, 2009.

EXTENDED TO SEPTEMBER 30. Deadline to submit initial comments to the Federal Communications Commission (FCC) regarding its Notice of Inquiry (NOI) [23 pages in PDF] in its proceeding titled "In the Matter of Implementation of Section 6002(b) of the Omnibus Budget Reconciliation Act of 1993 (and) Annual Report and Analysis of Competitive Market Conditions With Respect to Mobile Wireless including Commercial Mobile Services". (Parentheses added.) This NOI is FCC 09-67 in WT Docket No. 09-66. The FCC adopted and released this NOI on August 27, 2009. See, notice of extension (FCC 09-72).

EXTENDED TO SEPTEMBER 30. Deadline to submit initial comments to the Federal Communications Commission (FCC) regarding its Notice of Inquiry (NOI) [23 pages in PDF] in its proceeding titled "In the Matter of Fostering Innovation and Investment in the Wireless Communications Market (and) A National Broadband Plan For Our Future". (Parentheses added.) This NOI is FCC 09-66 in GN Docket Nos. 09-157 and No. 09-51. The FCC adopted and released this NOI on August 27, 2009. See, notice of extension (FCC 09-73).

Opening conference of the Supreme Court, October Term 2009. See, Supreme Court calendar.

8:30 AM - 5:00 PM. The Bureau of Industry and Security's (BIS) and MOFCOM's High Technology Working Group (HTWG) will meet. At 1:30 - 3:00 PM there will be a panel on information technology. See, agenda. Location: Ronald Reagan International Trade Center.

1:00 PM. The Federal Communications Commission (FCC) will host an event titled "open meeting". The agenda [PDF] includes a staff report on the status of the FCC drafting of document titled "National Broadband Plan". See also, revised notice released on September 22. For more information, contact Jen Howard at 202-418-0506 or jen dot howard at fcc dot gov. Location: FCC, Commission Meeting Room, 445 12th St., SW.

6:00 - 9:15 PM. The DC Bar Association will host an event titled "How to Protect and Enforce Trademark Rights". The speakers will be Shauna Wertheim (Marbury Law Group) and Steven Hollman (Hogan & Hartson). 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.

9:00 AM. The Federal Communications Commission (FCC) will hold an event titled "Workshop: Cyber Security". 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 a hearing titled "Advancing Freedom of Information in the New Era of Responsibility". The witnesses will be Thomas Perrelli (Associate Attorney General), Miriam Nisbet (National Archives and Records Administration), Tom Curley (AP), and Meredith Fuchs (GWU's National Security Archive). The SJC will webcast this event. See, notice. Location: Room 226, Dirksen Building.

10:00 AM. The House Small Business Committee's (HSBC) Subcommittee on Contracting & Technology will hold a hearing titled "Expiring Tax Incentives: Examining their Importance for Small Businesses on the Road to an Economic Recovery". Location: Room 2360, Rayburn Building.

2:30 PM. The Senate Judiciary Committee's (SJC) Subcommittee on Administrative Oversight and the Courts will hold a hearing titled "Responding to the Growing Need for Federal Judgeships: The Federal Judgeship Act of 2009". See, notice. The SJC will webcast this event. Location: Room 226, Dirksen Building.

6:00 - 7:30 PM. The DC Bar Association will host an event titled "Making Trademark Owners Whole: An Insightful Overview of Measuring and Proving Trademark Damages". The speakers will be Abram Hoffman and Danny Awdeh (Finnegan Henderson). The price to attend ranges from $20 to $35. Most DC Bar events are not open to the public. This event does not qualify for continuing legal education (CLE) credits. See, notice. For more information, call 202-626-3488. Location: DC Bar Conference Center, 1101 K St., NW.

Scheduled date for the Department of Commerce's (DOC) National Telecommunications and Information Administration (NTIA) and the Department of Transportation's (DOT) National Highway Traffic Safety Administration (NHTSA) to approve and announce grant awards under under the E-911 grant program authorized by the ENHANCE 911 Act. See, notice in the Federal Register, June 5, 2009, Vol. 74, No. 107, at Pages 26965-26981, and story titled "NTIA and NHTSA Publish E-911 Grant Program Rules" in TLJ Daily E-Mail Alert No. 1,949, June 5, 2009.

Deadline to submit to the Federal Communications Commission (FCC) nominations for membership on its Technological Advisory Council (TAC). See, notice in the Federal Register, September 8, 2009, Vol. 74, No. 172, at Pages 46198-46199.

Deadline to submit comments to the National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) regarding its draft SP 800-81 Rev. 1 [118 pages in PDF] titled "Secure Domain Name System (DNS) Deployment Guide".

Extended deadline to submit initial comments to the Federal Communications Commission (FCC) regarding its Notice of Inquiry (NOI) [23 pages in PDF] in its proceeding titled "In the Matter of Implementation of Section 6002(b) of the Omnibus Budget Reconciliation Act of 1993 (and) Annual Report and Analysis of Competitive Market Conditions With Respect to Mobile Wireless including Commercial Mobile Services". (Parentheses added.) This NOI is FCC 09-67 in WT Docket No. 09-66. The FCC adopted and released this NOI on August 27, 2009. See, notice of extension (FCC 09-72).

Extended deadline to submit initial comments to the Federal Communications Commission (FCC) regarding its Notice of Inquiry (NOI) [23 pages in PDF] in its proceeding titled "In the Matter of Fostering Innovation and Investment in the Wireless Communications Market (and) A National Broadband Plan For Our Future". (Parentheses added.) This NOI is FCC 09-66 in GN Docket Nos. 09-157 and No. 09-51. The FCC adopted and released this NOI on August 27, 2009. See, notice of extension (FCC 09-73).

8:30 AM. The Department of Commerce's (DOC) Bureau of Industry and Security's (BIS) Emerging Technology and Research Advisory Committee (ETRAC) will hold a partially closed meeting. See, notice in the Federal Register, September 16, 2009, Vol. 74, No. 178, at Page 47558. Location: DOC, Room 4830, 14th St. between Pennsylvania and Constitution Aves., NW.

10:00 AM. The House Science Committee's (HSC) Subcommittee on Technology and Innovation will hold a hearing titled "The Department of Homeland Security’s R&D Priorities for Fiscal Year 2010". The HSC will webcast this hearing. Location: Room 2318, Rayburn Building.

2:30 PM. The Federal Trade Commission's (FTC) Bureau of Economics will host a presentation by Kate Ho (Columbia). She has published papers on health care markets. Location: FTC, ground floor Conference Center, 601 New Jersey Ave., NW.

Effective date of the Federal Communications Commission's (FCC) rules changes that allow AM stations to use currently authorized FM translators for fill-in service within their current coverage areas. See, notice in the Federal Register, September 1, 2009, Vol. 74, No. 168, at Pages 45126-45131.

There will be no votes in the House.

TIME? The Office of the U.S. Trade Representative (OUSTR) will hold a hearing to assist it in preparing its annual report to the Congress on the People's Republic of China's (PRC) compliance with its World Trade Organization (WTO) obligations. See, notice in the Federal Register, August 31, 2009, Vol. 74, No. 167, at Pages 44895-44896. Location: OUSTR, Room 1, 1724, F St., NW.

8:30 AM. Day two of a meeting of the Department of Commerce's (DOC) Bureau of Industry and Security's (BIS) Emerging Technology and Research Advisory Committee (ETRAC). See, notice in the Federal Register, September 16, 2009, Vol. 74, No. 178, at Page 47558. Location: DOC, Room 3884, 14th St. between Pennsylvania and Constitution Aves., NW.

8:30 AM - 4:45 PM. George Mason University (GMU) School of Law will host a partially closed event titled "Tragedies of the Gridlock Economy: How Mis-configuring Property Rights Stymies Social Efficiencies". The event is open to the public from 8:30 to 10:30 AM. It is closed from 10:30 AM to 4:45 PM. The closed portion includes panel discussions titled "Patent Thickets", "Relocation of the TV Band", and "Google Books Litigation". At 8:30 AM Michael Heller and Richard Epstein will discuss Heller's book [Amazon] titled "The Gridlock Economy: How Too Much Ownership Wrecks Markets, Stops Innovation, and Costs Lives". The speakers for the patent panel will be Michael Meurer (Boston University law school), Scott Kieff (Washington University school of law), and Adam Mossoff (GMU law school). The speakers for the spectrum panel will be Kevin Werbach (University of Pennsylvania business school), Thomas Hazlett (George Mason University law school), and Gerald Faulhaber (University of Pennsylvania business school). The speakers for the Google Books panel will be Doug Lichtman (UCLA law school), Robert Merges (UC Berkeley law school), and Chris Newman (GMU law school). To solicit an invitation to the closed portion of the event, contact iep dot gmu at gmail dot com. Location: GMU School of Law, Arlington, VA.

9:00 -11:30 AM. The American Enterprise Institute (AEI) will host a panel discussion titled "The Supreme Court's Business". The speakers will be Michael Greve (AEI), Brian Brooks (O'Melveny & Myers), John Elwood (Vinson & Elkins), and Jeremy Rabkin (George Mason University Law School). See, notice. Breakfast will be served. Location: AEI, 12th floor, 1150 17th St., NW.

9:30 AM. The Federal Communications Commission (FCC) will hold an event titled "Workshop: Diversity and Civil Rights Issues in Broadband Policy". See, FCC web page related to the drafting of a document titled "National Broadband Plan". Location: FCC, Commission Meeting Room, 445 12th St., SW.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Notice of Inquiry (NOI) [62 pages in PDF] in its proceeding titled "In the Matters of Inquiry Concerning the Deployment of Advanced Telecommunications Capability to All Americans in a Reasonable and Timely Fashion, and Possible Steps to Accelerate Such Deployment Pursuant to Section 706 of the Telecommunications Act of 1996, as Amended by the Broadband Data Improvement Act (and) A National Broadband Plan for Our Future". (Parentheses added.) This NOI is FCC 09-65 in GN Docket Nos. 09-137 and 09-51. The FCC adopted this NOI on July 31, 2009, and released the text on August 7, 2009.