10/5. The Federal Communications Commission (FCC) announced in a release [PDF] that the agenda for its event titled "Open Meeting", scheduled for October 22, 2009, includes adoption of a Notice of Proposed Rulemaking (NPRM) "on policies to preserve the free and open Internet".

On September 21, 2009, FCC Chairman Julius Genachowski gave a speech [8 pages in PDF] by in which he proposed that the FCC promulgate rules that contain network neutrality mandates. See also, story titled "Genachowski, Copps and Clyburn Back Net Neutrality Rules" in TLJ Daily E-Mail Alert No. 1,986, September 22, 2009.

The FCC notice does not disclosure whether or not this NPRM will include the text of proposed rules. Nor does it disclose when the FCC will release the NPRM that it adopts.

Genachowski (at right) gave a speech on this subject in Washington DC on October 5 at the Future of Music conference. He inserted the titles of songs by Bruce Springstein into his speech. From the text of his prepared speech, he stated:

"... everywhere from the Streets of Philadelphia to My Hometown in New York, every Bobby Jean and every Jersey Girl should be counting on the Internet remaining free and open, not Counting on a Miracle. They should count on The Rising of millions of voices to beat back any Darkness on the Edge of Town, or broadband Badlands that could threaten limited choice and create potential bottlenecks.

"The people who built the Internet were working on more than a computer network, they were Working on a Dream. It was a network that was Born to Run in a land of open protocols, (the Promised Land). The Internet is more than an information highway, it is a telecom Thunder Road of wonderfully chaotic creativity and it will be a Lonesome Day if that is ever lost. But, hold on, Janey, Don't You Lose Heart, because the FCC will be taking up open Internet rules in the near future."

"I am grateful for the multitudes of artists -- including musicians, songwriters, and other creative voices -- who are coming forward to say they have a Hungry Heart for a free and open Internet, who will shout “No Surrender” when it is threatened."

He argued that his plans for regulating broadband internet access providers will benefit independent artists and independent labels. He stated that "With a free and open Internet, you don't have to have big-time, star-power leverage over record labels, publishing companies, commercial radio stations, or particular retailers to get your music to the public. In today’s broadband world, the artists themselves can be self-empowering -- they are free to connect with audiences, paying customers, and musical social networks in ways previously unimaginable."

"Most importantly, Net Neutrality permits independent artists and independent labels to compete on an equal technological playing field with the biggest companies in the space. That's the American way -- letting Internet users, the broadest group possible of ordinary people, decide who wins and loses", said Genachowski.

He added that "none of the principles I am proposing the Commission adopt will constrain efforts to ensure a safe, secure, and spam-free Internet experience, or to enforce the law. I believe that the enforcement of copyright and the obligations of network openness can and must co-exist."

10/5. The Supreme Court released its first huge Orders List [91 pages in PDF] of the just commenced October 2009 Term. This disposes of numerous petitions for writ of certiorari that accumulated late in the last term, and over the summer break between terms.

The Supreme Court denied certiorari in the following cases:

• Joseph Nacchio v. U.S., Sup. Ct. No. 08-1172, a case regarding the former head of a major telecommunications company. See, story titled "En Banc Panel Affirms Nacchio Conviction" in TLJ Daily E-Mail Alert No. 1,906, February 7, 2009.
• DBC v. USPTO, Sup. Ct. No. 08-1284, a case regarding appointments to the USPTO's Board of Patent Appeals and Interferences (BPAI). See, story titled "OSG Urges Supreme Court to Deny Cert in DBC" in TLJ Daily E-Mail Alert No. 1,959, June 22, 2009. 
• Improv West v. Comedy Club, Sup. Ct. No. 08-1525, a contract and trademark case.
• Milton H. Greene Archives v. BPI Communications, Sup. Ct. No. 08-1577, an intellectual property case involving photographs.
• Joel Tanenbaum v. Sony BMG Music, Sup. Ct. No. 08-1506, a copyright infringement case involving peer to peer systems.
• John Jorgensen v. Sony BMG Music Entertainment, Sup. Ct. No. 08-10891, a copyright infringement case brought by a songwriter.
• Laurie Laskey v. United Online, Sup. Ct. No. 08-11014.
• Atle Lygren v. Mirror Image Internet, Sup. Ct. No. 09-50.

This bill would add a new Section 1041 to Title 18, the criminal code, that bans caller identification spoofing.

The key language of the bill provides as follows:

"Whoever, in or affecting interstate or foreign commerce, knowingly uses or provides to another--
   (1) false caller ID information with intent wrongfully to obtain anything of value; or
   (2) caller ID information pertaining to an actual person or other entity without that person's or entity's consent and with intent to deceive any person or other entity about the identity of the caller;
or attempts or conspires to do so, shall be punished ..."

This bill, like most bills that prohibit fraudulent or deceptive conduct online or in telecommunications, carves out an exception for police and intelligence agencies.

It provides that "This section does not prohibit lawfully authorized investigative, protective, or intelligence activity of a law enforcement agency of the United States, a State, or a political subdivision of a State, or of an intelligence agency of the United States, or any activity authorized under chapter 224 of this title."

Chapter 224 pertains to the "Protection of Witnesses".

10/5. The Federal Trade Commission (FTC) released a notice [PDF], to be published in the Federal Register, that announces, describes, recites, and sets the effective date (December 1, 2009) of, its revisions to its "Guides Concerning the Use of Endorsements and Testimonials in Advertising".

Much of this notice pertains to commercial advertising. However, it also announces the FTC's intent both to delve into regulating the speech on individuals on the internet, and to do so inconsistently from its regulation of the speech of "traditional media".

For example, an individual blogger who receives a free copy of a video game, and writes about it, faces a federal civil enforcement action if he does not disclose that he received the free copy.

It is a massive document, 81 pages long, with 81 references to bloggers. These revisions includes examples with hypothetical people with personal blogs -- a lady with a dog, and a student who plays video games. The FTC now expands its regulation of their online speech. Whether any of these people will read or care about these 81 pages of legal rules is another question.

The relevant statute is Section 5 of the FTC Act, which is codified at 15 U.S.C. § 45. It is short and vague, but serves as authority for much of what the FTC does. It does not reference blogging.

It provides, in relevant part, that "Unfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce, are hereby declared unlawful."

The just released notice provides guidance regarding the circumstances under which the FTC might bring a civil enforcement action for violation of Section 5 against an individual blogger.

The new guidelines contain pages of new requirements and explanations for a hypothetical lady who blogs about her dog. The FTC's document does not expressly reference cats, but by analogy the FTC's new requirements would also apply to cat ladies, as well as owners of domestic pets generally.

The FTC offered this justification for regulating the speech of individual bloggers: "When the Commission adopted the Guides in 1980, endorsements were disseminated by advertisers -- not by the endorsers themselves -- through such traditional media as television commercials and print advertisements. With such media, the duty to disclose material connections between the advertiser and the endorser naturally fell on the advertiser. The recent creation of consumer-generated media means that in many instances, endorsements are now disseminated by the endorser, rather than by the sponsoring advertiser. In these contexts, the Commission believes that the endorser is the party primarily responsible for disclosing material connections with the advertiser."

The FTC's news guides also regulate the speech of individuals who post comments in online message boards. It provides this example: "An online message board designated for discussions of new music download technology is frequented by MP3 player enthusiasts. They exchange information about new products, utilities, and the functionality of numerous playback devices. Unbeknownst to the message board community, an employee of a leading playback device manufacturer has been posting messages on the discussion board promoting the manufacturer's product. Knowledge of this poster's employment likely would affect the weight or credibility of her endorsement. Therefore, the poster should clearly and conspicuously disclose her relationship to the manufacturer to members and readers of the message board."

The FTC could have restricted its regulation of online speech by individual bloggers to the corporate advertisers who sponsor or compensate these individual bloggers. But, it determined not to do so.

Moreover, the FTC in this notice "acknowledges that bloggers may be subject to different disclosure requirements than reviewers in traditional media". More specifically, the FTC holds bloggers to more burdensome disclosure requirements.

So, for example, the FTC notice states, if a "blogger" and "traditional media" are sent video games at no charge, and write reviews, the "blogger", but not the "traditional media", must disclose the nonpayment for the video game. The FTC notice reasons that, regardless of the content of the reviews, the former is an "endorsement" under the FTC's guides, while the latter is not.

Also, the just released notice does not put all speakers on notice as to whether that speaker will be classified by the FTC as a "blogger" or a "traditional media", and hence, which rules apply to it.

The FTC is a entity created, authorized and funded by the Congress. It is therefore equally bound by the First Amendment's requirement that "Congress shall make no law ... abridging the freedom of speech, or of the press".

The FTC's guides constitute a law abridging the freedom of bloggers.

The FTC's guide also offends the First Amendment in a second respect. The disparate treatment of different classes of speakers amounts to a prohibited licensing regime. When one class of people is permitted by government to engage in an activity, while another class is not, this is the essence of a licensing regime.

As former Chief Justice of the Supreme Court of the U.S., Warren Burger, wrote in his concurring opinion in FNB v. Belotti, "The very task of including some entities within the ``institutional press´´ while excluding others, whether undertaken by legislature, court, or administrative agency, is reminiscent of the abhorred licensing system of Tudor and Stuart England -- a system the First Amendment was intended to ban from this country."

Chief Justice Burger continued that "Because the First Amendment was meant to guarantee freedom to express and communicate ideas, I can see no difference between the right of those who seek to disseminate ideas by way of a newspaper and those who give lectures or speeches and seek to enlarge the audience by publication and wide dissemination".

"In short, the First Amendment does not ``belong´´ to any definable category of persons or entities: It belongs to all who exercise its freedoms." See, First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978).

The FTC notice addresses the First Amendment at length, but only in examining its restrictions on the use of testimonials in advertising. It concludes that its guides "withstands Constitutional scrutiny" and "will not impermissibly chill truthful speech in violation of the First Amendment". The FTC notice does not address the First Amendment in the context of its restrictions on bloggers, and the disparate treatment of bloggers.

As of the October 6, 2009, issue of the Federal Register, the FTC had not yet published this notice.

The statute upon which the FTC relies in regulating advertising, and now bloggers, contains the limitation of "in or affecting commerce". This statutory authority does not extend to political contributions, advertising and speech. However, the Federal Election Commission (FEC) regulates those activities. In recent years it considered, but withdrew from, regulating bloggers' political speech in a manner analogous to the FTC's just announced intent to regulate bloggers' "in or affecting commerce" speech.

For more on FEC regulation of bloggers see:

• "FEC to Consider Rules Regarding Internet Speech" in TLJ Daily E-Mail Alert No. 1,100, March 22, 2005.
• "Sen. Reid Introduces Bill to Exempt Internet Communications From Certain FEC Regulation" and "Democratic Representatives Urge FEC Not to Regulate Blogs" in TLJ Daily E-Mail Alert No. 1,101, March 23, 2005.
• "Bloggers Dodge McCain Feingold Bullet" in TLJ Daily E-Mail Alert No. 1,102, March 24, 2005.
• "FEC Approves NPRM on Internet Speech" in TLJ Daily E-Mail Alert No. 1,103, March 25, 2005.
• "House Committee Holds Hearing on Regulation of Internet Speech" in TLJ Daily E-Mail Alert No. 1,222, September 27, 2005.
• "House Rejects Online Freedom of Speech Act" and "Commentary: Analysis of the Vote on HR 1606" in TLJ Daily E-Mail Alert No. 1,246, November 3, 2005.
• "CDT Releases Proposed Bill to Limit the FEC's Authority to Regulate Online Speech" in TLJ Daily E-Mail Alert No. 1,327, March 10, 2006.
• "Federal Election Commission to Consider Internet Speech Rules" in TLJ Daily E-Mail Alert No. 1,336, March 27, 2006.

10/5. The Federal Trade Commission (FTC) released a notice [PDF], to be published in the Federal Register, that announces, describes, and recites its revisions to its "Guides Concerning the Use of Endorsements and Testimonials in Advertising".

The following is the new language for § 255.5, titled "Disclosure of material connections". (See, also the text of these Guides prior to the just announced changes.)

"When there exists a connection between the endorser and the seller of the advertised product that might materially affect the weight or credibility of the endorsement (i.e., the connection is not reasonably expected by the audience), such connection must be fully disclosed. For example, when an endorser who appears in a television commercial is neither represented in the advertisement as an expert nor is known to a significant portion of the viewing public, then the advertiser should clearly and conspicuously disclose either the payment or promise of compensation prior to and in exchange for the endorsement or the fact that the endorser knew or had reason to know or to believe that if the endorsement favored the advertised product some benefit, such as an appearance on television, would be extended to the endorser. Additional guidance, including guidance concerning endorsements made through other media, is provided by the examples below."

The current text, and the just released notice, also contain a series of examples. The new Example 7 pertains to a hypothetical student video gaming blogger.

"A college student who has earned a reputation as a video game expert maintains a personal weblog or ``blog´´ where he posts entries about his gaming experiences. Readers of his blog frequently seek his opinions about video game hardware and software. As it has done in the past, the manufacturer of a newly released video game system sends the student a free copy of the system and asks him to write about it on his blog. He tests the new gaming system and writes a favorable review. Because his review is disseminated via a form of consumer-generated media in which his relationship to the advertiser is not inherently obvious, readers are unlikely to know that he has received the video game system free of charge in exchange for his review of the product, and given the value of the video game system, this fact likely would materially affect the credibility they attach to his endorsement. Accordingly, the blogger should clearly and conspicuously disclose that he received the gaming system free of charge. The manufacturer should advise him at the time it provides the gaming system that this connection should be disclosed, and it should have procedures in place to try to monitor his postings for compliance."

The FTC's related discussion adds that bloggers must disclose all "material connections".

Thus, for bloggers to comply with the FTC's mandate, they must read and understand the above language, and be able to predict how the FTC will interpret and enforce it. This involves analysis of many complex issues.

First, there is materiality. This is often a disputed and complicated factual issue in legal proceedings. Under the FTC's new guides, any ordinary blogger must be versed in the legal concept of materiality to understand whether he is engaged in unlawful conduct.

Second, there is expertise. The new restriction applies to an "expert", or one with a "reputation as a .. expert". Litigators and judges have consumed much ink on the issues of what constitutes, and who is, an expert. Under the FTC's new guides every individual blogger is imputed to possess superior legal expertise on the meaning of expertise.

The new guides are full of other undefined terms that serve as a trap for bloggers. What is a "connection", other than receiving a free copy? What of a time limited copy? What of receiving a free copy of one game, but later writing a review of another game for which there was no free copy? Lunch? Cosanguinity in the fifth degree?

What is a "favorable review"? Is the clause "Readers of his blog frequently seek his opinion" an element of the offense? If so, what does frequently mean? 10,000 page views per month? 10?

What is the difference between a "blogger" and "traditional media" when large newspaper companies publish online, including blogs, and individuals publish web sites and paper products?

The Washington Tech Calendar section of the TLJ Daily E-Mail Alert Nos. 1,995 and 1,996 incorrectly listed the date of the next Senate Judiciary Committee (SJC) executive business meeting as Wednesday, October 7, 2009. It is scheduled for Thursday, October 8, 2009.

The House will meet at 12:30 PM for morning hour, and at 2:00 PM for legislative business. The House will consider several non-technology related resolutions under suspension of the rules. Votes will be postponed until 6:30 PM. See, Rep. Hoyer's schedule for week of October 5, 2009.

The Senate will meet at 10:00 AM. It will consider the nomination of Thomas Perez to be Assistant Attorney General in charge of the Civil Rights Division.

8:00 AM - 5:30 PM. Day one of a two day meeting of the National Nanotechnology Coordination Office (NNCO). See, notice in the Federal Register, September 25, 2009, Vol. 74, No. 185, at Page 49041. Location: Holiday Inn Rosslyn-Key Bridge, 1900 N. Fort Myer Drive, Arlington, VA.

TIME CHANGE. 10:00 - 11:30 AM. The Information Technology and Innovation Foundation (ITIF) will host a panel discussion regarding policies that spur innovation. The speakers will be Rob Atkinson (ITIF), Stephen Ezell (ITIF), Andrei Cherny, Kevin Huffman, and Robert Wial. See, notice. The ITIF will webcast this event. Location: ITIF, 1101 K St., NW.

1:00 - 2:00 PM. The American Bar Association's (ABA) Section of Antitrust Law will host a seminar by teleconference titled "Privacy and Information Security Update". The speakers will be Lisa Sotto (Hunton & Williams), Elizabeth Johnson (H&W), Aaron Simpson (H&W), and Erin Egan (Covington & Burling). To request permission to participate, see notice.

TIME CHANGE. 2:00 1:30 PM. The Senate Judiciary Committee's (SJC) Subcommittee on the Constitution will hold a hearing titled "Examining the History and Legality of Executive Branch Czars". See, notice. The SJC will webcast this event. Location: Room 226, Dirksen Building.

Day three of a three day event hosted by the Future of Music Coalition titled "Future of Music Coalition Policy Summit". See, schedule. Location: Gaston Hall and Conference Center, Georgetown University, 37th and O Streets, NW.

Deadline to submit comments to the Federal Communications Commission (FCC) regarding its workshop to be held on October 20, 2009, titled "Workshop: Broadband Accessibility for People with Disabilities II: Barriers, Opportunities and Policy Recommendations". See, Public Notice [10 pages in PDF], DA 09-2080 in GN Docket Nos. 09-47, 09-51, and 09-137.

The House will meet at 10:00 AM for legislative business. The House may vote on the conference reports on the agriculture and homeland security appropriations bills, and the conference report on the defense authorization bill. See, Rep. Hoyer's schedule for week of October 5, 2009.

8:00 AM - 4:00 PM. The Department of Homeland Security's (DHS) National Protection and Programs Directorate's (NPPD) Critical Infrastructure Partnership Advisory Council (CIPAC) will meet. The agenda includes a discussion by critical infrastructure and key resources (CIKR) owners regarding information sharing and cybersecurity. See, notice in the Federal Register, September 25, 2009, Vol. 74, No. 185, at Page 48998. Location: Grand Ballroom, J.W. Marriott, 1331 Pennsylvania Ave., NW.

8:00 AM - 4:00 PM. Day two of a two day meeting of the National Nanotechnology Coordination Office (NNCO). See, notice in the Federal Register, September 25, 2009, Vol. 74, No. 185, at Page 49041. Location: Holiday Inn Rosslyn-Key Bridge, 1900 N. Fort Myer Drive, Arlington, VA.

9:00 - 11:00 AM. The Information Technology and Innovation Foundation (ITIF) will host an event titled "Enhancing Universities' Role in Technology Commercialization". The speakers will be Rob Atkinson (ITIF), Krisztina Holly (USC), Desh Deshpande (Sycamore Networks), and Tom Kahil (Executive Office of the President). See, notice. The ITIF will webcast this event. Location: ITIF, 1101 K St., NW.

9:00 AM - 4:00 PM. The National Institute of Standards and Technology's (NIST) Information Security and Privacy Advisory Board (ISPAB) will meet. See, notice in the Federal Register, September 25, 2009, Vol. 74, No. 185, at Page 48910. Location: NTSB Board Room/Conference Center, 429 L'Enfant Plaza, SW.

10:00 AM. The Senate Commerce Committee's (SCC) Subcommittee on Communications, Technology and the Internet will hold a hearing titled "Reauthorization of the Satellite Home Viewer Extension and Reauthorization Act of 2004". The witnesses will be Robert Gabrielli (Directv), Stanton Dodge (Dish Network), Paul Karpowicz (Meredith Corporation), and Bill Acker (West Virginia Public Broadcasting). See, notice. Location: Room 253, Russell Building.

STAYED. 10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument en banc in Tafas v. Doll, App. Ct. No. 2008-1352. Location: Courtroom 201. See, July 28 order and August 21 order.

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.

11:00 AM. The Supreme Court will hear oral argument in Reed Elsevier v. Muchnick, a case involving the question of whether 17 U.S.C. § 411(a) restricts the subject matter jurisdiction of the federal courts over copyright infringement actions. See, story titled "Supreme Court Grants Cert in Reed Elsevier v. Muchnick" in TLJ Daily E-Mail Alert No. 1,908, March 4, 2009. This case is Reed Elsevier, Inc. v. Muchnick, Sup. Ct. No. 08-103, a petition for writ of certiorari to the U.S. Court of Appeals for the 2nd Circuit, App. Ct. Nos. 05-5943 and 06-0223. The Court of Appeals' opinion is reported at 509 F.3d 116.

12:00 NOON - 1:45 PM. The Department of Commerce's (DOC) Bureau of Industry and Security (BIS) and the Department of the Treasury's (DOT) Office of Foreign Assets Controls (OFAC) will host an event titled "interactive brown bag session" and "Export Controls and Sanctions -- Responsibilities of Freight Forwarders". The speakers will be Jessica Brinkman (OFAC Compliance Officer), Kevin Delli-Colli (BIS acting Assistant Secretary), Michael Geffroy (OFAC Assistant Director for Enforcement), and John Reynolds (Wiley Rein). Prices vary. To participate by teleconference, see notice. The ABA asserts that this is an ABA event. Location: Wiley Rein, 1776 K St., NW.

1:00 - 2:00 PM. The Federal Trade Commission (FTC) will host a "brown bag program" titled "Recent Developments: Assessing the Behavioral Advertising Landscape" and "overview of the latest legislative, regulatory, and policy developments affecting online behavioral advertising". See also, FTC report [PDF] titled "Self-Regulatory Principles For Online Behavioral Advertising" and story titled "FTC Releases Report on Online Behavioral Advertising" in TLJ Daily E-Mail Alert No. 1,899, February 13, 2009. The speakers will be Peder Magee (Federal Trade Commission), Katie Harrington-McBride (FTC), Susan Grant (Consumer Federation of America), Benjamin Rickert (Microsoft), and Dominique Shelton (Wildman Harrold). To request permission to participate by teleconference, see notice. The ABA states that this is an ABA event.

1:30 PM. The House Judiciary Committee (HJC) will meet to mark up five bills. The fourth and fifth items on the agenda are HR 1110 [LOC | WW], the "PHONE Act of 2009", and HR 3237 [LOC | WW], an untitled bill pertaining to national and commercial space programs. The HJC will webcast this event. Location: Room 2141, Rayburn Building.

4:00 PM. The Senate Judiciary Committee (SJC) will hold a hearing on the nomination of Barbara Keenan to be Judge of the U.S. Court of Appeals for the 4th Circuit. See, notice. The SJC will webcast this event. Location: Room 226, Dirksen Building.

The House will meet at 10:00 AM for legislative business. See, Rep. Hoyer's schedule for week of October 5, 2009.

7:45 - 9:15 AM. The Northern Virginia Technology Council (NVTC) will host a breakfast. The speaker will be Justice Anthony Kennedy (Supreme Court). Prices vary. See, notice. Location: The Ritz-Carlton Tysons Corner, 1700 Tysons Blvd., McLean, Virginia.

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", and S 1692 [LOC | WW], the "USA PATRIOT Act Sunset Extension Act of 2009". The SJC rarely follows is published agendas. See, notice. Location: Room 226, Dirksen Building.

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.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Verizon Services v. Cox Fibernet, App. Ct. No. 2009-1086. This is a patent infringement case involving VOIP technology. Location: Courtroom 203.

10:00 AM - 12:00 NOON. The National Industrial Security Program Policy Advisory Committee (NISPPAC) will meet. See, notice in the Federal Register, September 9, 2009, Vol. 74, No. 173, at Page 46470. Location: National Archives and Records Administration, Room 105, 700 Pennsylvania Ave., NW.

12:00 - 1:30 PM. The Federal Trade Commission (FTC) will host a "brown bag program" titled "Meet the New Federal Trade Commission Bureau Directors". The speakers will be Richard Feinstein, (Director of the Bureau of Competition), David Vladeck (Director of the Bureau of Consumer Protection), and Joseph Farrell (Director of the Bureau of Economics). To request permission to attend or participate by telephone, contact Donna Fleming at donna dot fleming at dbr dot com or 202-230-5627. The ABA asserts that this is an ABA event. Location: Drinker Biddle & Reath, 1500 K St., NW.

2:30 PM. The Federal Trade Commission's (FTC) Bureau of Economics will host a presentation by Rachel Soloveichik (Bureau of Economic Analysis) titled "Music a Capital Asset". See, paper [54 pages in PDF] of the same title. Location: FTC, ground floor Conference Center, 601 New Jersey Ave., NW.

6:00 - 8:00 PM. The Federal Communications Bar Association's (FCBA) Young Lawyers Committee will hold an event titled "Pre-Charity Auction Happy Hour". The auction will be held on November 12. Location: 14K Restaurant, 1001 14th St., NW.

Deadline to submit comments to the Bureau of Industry and Security (BIS) in response to its request for comments regarding certain export controls. See, notice in the Federal Register, September 8, 2009, Vol. 74, No. 172, at Pages 46088-46089, and story titled "Export Regulators Seek Comments on Rules" in TLJ Daily E-Mail Alert No. 1,981, September 9, 2009.

Rep. Hoyer's schedule for week of October 5, 2009, states that "no votes are expected in the House".

The American Bar Association (ABA) will host a conference titled "The Third Annual National Institute on Criminal Enforcement of Intellectual Property Rights". Prices vary. See, conference brochure. Location: Ritz Carlton Hotel.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Intellectual Science and Technology v. Sony Electronics, App. Ct. No. 2009-1142. This is a patent infringement case involving CD player and recorder technology. Location: Courtroom 203.

10:00 AM. The Federal Communications Commission (FCC) will hold an event titled "Workshop: Economic Issues in Broadband Competition". See, FCC web page related to the drafting of a document titled "National Broadband Plan", and web page for this event. Location: FCC, Commission Meeting Room, 445 12th St., SW.

Deadline to submit comments to the Copyright Royalty Judges regarding the August 12, 2009, motion of Phase I claimants requesting a partial distribution of 50% of the 2007 cable royalty funds, pursuant to 17 U.S.C. § 111. See, notice in the Federal Register, September 9, 2009, Vol. 74, No. 173, at Pages 46468-46469.

Deadline to submit to the Federal Communications Commission (FCC) replies or oppositions to the comments regarding or petitions to deny 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.

Columbus Day.

The House will not meet.

EXTENDED TO OCTOBER 15. Deadline to submit reply 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).

8:00 AM - 4:00 PM. The Department of Homeland Security's (DHS) National Protection and Programs Directorate's (NPPD) National Infrastructure Advisory Council (NIAC) will meet. The agenda includes consideration of a "final report from the Frameworks for Dealing with Disasters and Related Interdependencies Working Group and a status reports from the Critical Infrastructure Resilience Working Group". See, notice in the Federal Register, September 25, 2009, Vol. 74, No. 185, at Pages 48997-48998. Location: Park Hyatt, Ballroom, 24th and M St., NW.

12:00 NOON - 2:00 PM. The Federal Communications Bar Association's (FCBA) Legislative and Privacy and Data Security Committees will host a brown bag lunch titled "privacy legislative priorities for the 111th Congress with special emphasis on behavioral marketing and data security legislation". See for example, HR 1319 [LOC | WW], the "Informed P2P User Act", and HR 2221 [LOC | WW], the "Data Accountability and Trust Act", both amended and approved by the House Commerce Committee (HCC) on September 30, 2009. The speakers will include Amy Levine (Legislative Counsel to Rep. Rick Boucher (D-VA)) and Paul Cancienne (Legislative Aide to Rep. Mary Bono (R-CA)). RSVP to dlogan at reedsmith dot com. The FCBA often excludes people from its meetings. Location: Reed Smith, Suite 1100 East Tower, 1301 K St., NW.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Notice of Inquiry (NOI) [33 pages in PDF] in its proceeding titled "In the Matter of Consumer Information and Disclosure Truth-in-Billing and Billing Format IP-Enabled Services". This NOI is FCC 09-68 in CG Docket Nos. 09-158 and CC Docket No. 98-170 and WC Docket No. 04-36. The FCC adopted it on August 27, 2009, and released the text on August 28, 2009.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to the FCC's Notice of Proposed Rulemaking (NPRM) regarding requiring applicants that win broadband radio service (BRS) licenses in Auction 86, and any subsequent auction, to demonstrate substantial service on or before four years from the date of license grant. The FCC adopted this NPRM on September 8, 2009, and released the text on September 11, 2009. It is FCC 09-70 in WT Docket No. 03-66 and RM-10586. Auction 86 is scheduled to begin on October 27, 2009. See, notice in the Federal Register, September 28, 2009, Vol. 74, No. 186, at Pages 49356-49359.

EXTENDED TO OCTOBER 15. Deadline to submit reply 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).

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