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December 20, 2010, 8:00 AM, Alert No. 2,184.
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Senate Confirms More Judges

12/19. The Senate confirmed Raymond Lohier to be a Judge of the U.S. Court of Appeals (2ndCir) by a vote of 92-0 on Sunday, December 19, 2010. See, Roll Call No. 284.

He is an Assistant U.S. Attorney for the Southern District of New York. Before that, he worked in the Department of Justice's (DOJ) Civil Rights Division. And before that, he worked for the law firm of Cleary Gottlieb.

On Saturday, December 18, the Senate confirmed Albert Diaz to be a Judge of the U.S. Court of Appeals (4thCir). See, Congressional Record, December 18, 2010, at Page S10704.

He is currently a state trial court judge in the North Carolina Courts. He is a Special Superior Court Judge for Complex Business Cases. Before that, he worked for the law firm of Hunton & Williams. And before that, he was a Marine Corps lawyer.

The Senate confirmed four persons to be District Court Judges on December 18, and one on December 19. This is in addition to the four judicial confirmations on December 17. See, story titled "Senate Confirms Four Judicial Nominees" in TLJ Daily E-Mail Alert No. 2,182, December 18, 2010.

On December 18, the Senate confirmed Ellen Hollander to be a Judge of the U.S. District Court (DMd) by a vote of 95-0. See, Roll Call No. 280. She is currently a Judge of the Maryland Court of Special Appeals.

On December 18, the Senate confirmed Kimberly Mueller to be a Judge of the U.S. District Court (EDCal). She is currently a U.S. Magistrate Judge. Sen. Dianne Feinstein (D-CA) stated in a release that "It is senseless that Judge Mueller, a well-qualified and uncontroversial nominee, had to wait over nine months for the Senate to take action to confirm her. It is time to put an end to the obstruction and delay that have been holding so many qualified judicial candidates hostage."

On December 18, the Senate confirmed Edmund Chang to be a Judge of the U.S. District Court (NDIll). See, Congressional Record, December 18, 2010, at Page S10704.

On December 18, the Senate confirmed Leslie Kobayashi to be a Judge of the U.S. District Court (DHawaii). See, Congressional Record, December 18, 2010, at Page S10704.

And finally, on December 19, the Senate confirmed Carlton Reeves to be a Judge of the U.S. District Court (SDMiss). See, Congressional Record, December 19, 2010, at Page S10772.

There are several key nominees, who have been nominated by the President, have been approved by the Senate Judiciary Committee (SJC), have not been withdrawn by the President, and remain on the Senate's Executive Calendar as of Monday, December 20, 2010:

Pending Executive Branch Nominations

12/19. The Senate's Executive Calendar as of Monday, December 20, 2010, includes several Presidential nominees for key executive branch offices.

These include the nomination of James Cole to be the Deputy Attorney General (DAG), the number two position at the Department of Justice (DOJ). The position was previously held by David Ogden, who left after a short tenure over differences with Attorney General Eric Holder. Gary Grindler is the acting DAG.

Other pending nominations that are significant for various technology related areas of law and policy include:

  • Eric Hirschhorn, nominated to be Under Secretary of Commerce for Export Administration, a position with authority over licensing exports of dual use products, including computers and software.
  • Michael Punke, nominated to be Deputy U.S. Trade Representative.
  • Islam Siddiqui, nominated to be the Chief Agricultural Negotiator in the Office of the U.S. Trade Representative (OUSTR).
  • Peter Diamond, nominated to be a member of the Board of Governors of the Federal Reserve System.
Nokia Files Patent Infringement Complaints Against Apple in UK, Germany and Holland

12/16. Nokia filed patent infringement claims against Apple in several courts. It announced in a release that it "filed claims in the UK High Court, Dusseldorf and Mannheim District Courts in Germany and the District Court of the Hague, Netherlands, alleging that Apple infringes Nokia patents in many of its products sold in these countries, including iPhone, iPad and iPod Touch.

Nokia previously filed complaints alleging patent infringement in U.S. District Courts, and a Section 337 claim in the U.S. International Trade Commission (USITC). See, story titled "Nokia Files Section 337 Complaint Against Apple" in TLJ Daily E-Mail Alert No. 2,030, December 30, 2009.

Nokia's Paul Melin stated that "These actions add 13 further Nokia patents to the 24 already asserted against Apple in the US International Trade Commission and the Delaware and Wisconsin Federal courts".

Nokia added that "None of the asserted patents have been declared essential to any wireless communication standard."

UN Changes Composition of Working Group on Internet Governance

12/17. On December 10, 2010, the United Nations' (UN) announced in a release that its Working Group on Internet Governance (WGIG) will be composed only of government representatives. Also, it will allocate members by region. For example, the African region will be allocated the same number of members as the Asian region -- three.

On December 17, Google published a short piece titled "Governments Shouldn't Have a Monopoly on Internet Governence". The author is Google's Vint Cerf.

Cerf wrote that "we don't believe governments should be allowed to grant themselves a monopoly on Internet governance. The current bottoms-up, open approach works -- protecting users from vested interests and enabling rapid innovation."

See also, story titled "Rep. Mary Mack Introduces Resolution on Internet Governance" in TLJ Daily E-Mail Alert No. 2,183, December 19, 2010.

Sen. Franken Lashes Out at Comcast/NBCU Deal, Weak Net Neutrality Rules, and Fishy Connection Agreements

12/18. Sen. Al Franken (D-MN) gave a speech in the Senate on Saturday, December 18, 2010, in which he argued because there is a "growing threat of corporate control on the flow of information in this country", the Federal Communications Commission (FCC) must block the Comcast NBCU transaction and impose internet rules more stringent that what the FCC is set to adopt on December 21.

Comcast was Sen. Franken's primary target in this speech. He said that it already has a "near monopoly in the Internet business", a "virtual monopoly", and "control of the Internet".

He spoke about the FCC's long pending review of the Comcast NBC Universal transaction, the FCC's imminent adoption of rules regulating broadband internet access service (BIAS), and Comcast's and Level 3's network connection agreement.

Sen. Al FrankenSen. Franken (at right) wants the Comcast NBU deal blocked. He wants the FCC to write tougher BIAS rules. And, he thinks that the Comcast Level 3 agreement regarding connection of their networks is "fishy".

Comcast NBCU. He asserted that the Comcast NBCU transaction "will be bad for consumers ... It will raise your cable bills". He also said that Comcast and other BIAS providers have poor customer service, and "this is only going to get worse if the FCC allows the merger between Comcast and NBC to sail through".

(The FCC released two papers on December 6, 2010, that contain results of a survey of BIAS customers. 82% respond that they are either very satisfied or somewhat satisfied with customer service. See, story titled "FCC Survey Shows That Broadband Customers Like Broadband" in TLJ Daily E-Mail Alert No. 2,171, December 7, 2010.)

"We count on competition in this country to keep corporations in check, and we have designed antitrust laws to ensure that companies are not getting too big or too powerful." Hence, said Sen. Franken, "we need the Department of Justice and the FCC to stop this merger."

He also predicted that if this transaction is permitted, then "it will be only a year or two before we see AT&T trying to buy ABC/Disney, or Verizon trying to buy CBS/Viacom".

He also criticized Comcast for negotiating an agreement with Level 3 under which Level 3 pays Comcast to connect to its network. He termed it "a little fishy".

BIAS Regulation. He also criticized FCC Chairman Julius Genachowski's proposal to regulate BIAS. He said that the unreleased rules to be adopted on December 21 are a "flawed net neutrality proposal", that will make it "easier for large media conglomerates-like Comcast-to do nothing short of controlling the Internet".

"Unfortunately, the proposal before the FCC -- which I'll admit I haven't seen because it's not been made public", said Sen. Franken, "would allow Internet providers to create a fast lane for companies that can afford to pay a premium. It would allow mobile networks, like AT&T and Verizon Wireless, to completely block content and applications whenever it suits them -- for either political or business reasons."

"If the FCC passes this weak rule, Verizon will be able to cut-off access to the Google Maps app on your phone and force you to use their own mapping program, Verizon Navigator, even if it is not as good. And even if they charge money, when Google Maps is free."

Moreover, he asserted, "there is nothing to prevent those same corporations from censoring political speech."

FCC Process. He also discussed the nature of the administrative process, offering both his observations, and normative assessments. He stated that "the FCC is an independent agency. Independent agencies are non-partisan. They are not beholden to Congress or to the President, and they certainly should not be beholden to the industries they regulate."

He continued that "when I hear that the FCC is considering a net neutrality proposal that is supported by the largest media corporations in America, I am suspicious-and you should be too. The FCC should not be worrying about getting the sign-off from the very corporations that it is supposed to be regulating."

He also predicted that the FCC will soon conclude its review of Comcast NBCU transaction. He argued that the FCC "needs to do this in the light of day -- not hidden in the middle of Christmas and New Year's. The American people have a right to know about this merger. I will be supremely disappointed if approval of the merger is slipped through when most of America is unwrapping presents".

This speech is also in the Congressional Record, December 18, 2010, at Pages S10690-2.

See also, story titled "Sen. Franken Urges FCC Not to Adopt Genachowski's Proposal" in TLJ Daily E-Mail Alert No. 2,178, December 14, 2010.

In This Issue
This issue contains the following items:
  Senate Confirms More Judges
  Pending Executive Branch Nominations
  Nokia Files Patent Infringement Complaints Against Apple in UK, Germany and Holland
  UN Changes Composition of Working Group on Internet Governance
  Sen. Franken Lashes Out at Comcast/NBCU Deal, Weak Net Neutrality Rules, and Fishy Connection Agreements
  Supreme Court Denies Cert in Luxpro v. Apple
  More News
Washington Tech Calendar
New items are highlighted in red.
Monday, December 20

The House will not meet.

The Senate will meet at 10:00 AM.

EXTENDED TO JANUARY 31. Deadline to submit initial comments to the Library of Congress's (LOC) Copyright Office (CO) in response to its Notice of Inquiry (NOI) regarding federal coverage of sound recordings fixed before February 15, 1972. See, notice in the Federal Register, November 3, 2010, Vol. 75, No. 212, at Pages 67777-67781. This proceeding is LOC Docket No. 2010-4. See also, story titled "Library of Congress Issues NOI on Extending Copyright Act to Pre 1972 Sound Recordings" in TLJ Daily E-Mail Alert No. 2,150, November 8, 2010. See also, extension notice in the Federal Register, December 1, 2010, Vol. 75, No. 230, at Pages 74749-74750.

Tuesday, December 21

The House will meet at 10:00 AM for legislative business. The House might take up HR 5116 [LOC | WW], the "America COMPETES Reauthorization Act of 2010".

10:30 AM. The Federal Communications Commission (FCC) will hold an event titled "open meeting". The agenda [PDF] includes adoption of two items: broadband internet access service (BIAS) rules and a 911 notice of inquiry (NOI). See, story titled "FCC Releases Agenda for December 21 Meeting" in TLJ Daily E-Mail Alert No. 2,179, December 15, 2010. Location: FCC, Commission Meeting Room, 445 12th St., SW.

RESCHEDULED FOR JANUARY 27. 12:00 NOON - 2:00 PM. The DC Bar Association will host an event titled "False Patent Marking: Now What?". The speakers will be Elizabeth Winston (Catholic University law school), Robert Shaffer (Finnegan), Maureen Browne (Covington & Burling). See, 35 U.S.C. 292, regarding false marking. See also, the December 28, 2009, opinion [16 pages in PDF] of the U.S. Court of Appeals (FedCir) in The Forest Group, Inc. v. Bon Tool Company construing Section 292. See also, HR 4954 [LOC | WW]], an untitled bill, and HR 6352 [LOC | WW], the "Patent Lawsuit Reform Act of 2010"; both would amend Section 292; the House has passed neither. And see, story titled "Representatives Introduce Bill to Amend Patent Act Regarding Remedies for False Markings" in TLJ Daily E-Mail Alert No. 2,067, March 30, 2010. The price to attend ranges from $40 to $55. For more information, contact 202-626-3463. See, notice. Location: DC Bar Conference Center, B-1 Level, 1250 H St., NW.

Wednesday, December 22

No events listed.

Thursday, December 23

No events listed.

Friday, December 24

Christmas Day (observed). This is a federal holiday. See, Office of Personnel Management's (OPM) web page titled "2010 Federal Holidays".

Monday, December 27

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its notice of proposed rulemaking (NPRM) regarding regulating the billing and notice practices of mobile service providers. The FCC adopted and released this NPRM on October 14, 2010. It is FCC 10-180 in CG Docket Nos. 10-207 and 09-158. See, notice in the Federal Register, November 26, 2010, Vol. 75, No. 227, at Pages 72773-72777. See also, story titled "FCC Adopts Bill Shock NPRM" in TLJ Daily E-Mail Alert No. 2,142, October 19, 2010.

Deadline to submit comments to the Copyright Office (CO) in response to its notice of proposed rulemaking (NPRM) regarding notices of termination of certain grants of transfers and licenses of copyright under 17 U.S.C. 203. See, notice in the Federal Register, November 26, 2010, Vol. 75, No. 227, at Pages 72771-72773.

Deadline to submit comments to the Department of Transportation's (DOT) Intelligent Transportation Systems Program Advisory Committee (ITSPAC) in advance of its meeting on January 6-7, 2011, in Oakland, California. See, notice in the Federal Register, December 14, 2010, Vol. 75, No. 239, at  Page 77955.

Supreme Court Denies Cert in Luxpro v. Apple

12/13. The Supreme Court denied certiorari in Luxpro v. Apple, a case regarding trial venue in complex technology related civil litigation. See, December 13, 2010 Orders List, at page 3, and Supreme Court docket.

This lets stand the April 19, 2010, opinion of the U.S. Court of Appeals (8thCir), which granted Apple's petition for writ of mandamus directing the U.S. District Court (WDArk) to transfer a case to the U.S. District Court (NDCal).

In the underlying District Court action, Luxpro, a manufacturer and distributor of digital music players based in Taiwan, filed a complaint against Apple, another manufacturer of digital music players, alleging that Apple engaged Luxpro in abusive litigation in Germany and Taiwan.

The Court of Appeals wrote that "The convenience of the parties and witnesses, and the relevant interests of justice, favor transfer of this case from the Western District of Arkansas to the Northern District of California. The district court, however, essentially treated as dispositive Luxpro's choice of a forum with no connection to the lawsuit, bolstered only by statistics concerning median time from filing to trial in Western Arkansas. In our view, this was a clear abuse of discretion. For the foregoing reasons, we grant Apple's petition for writ of mandamus and direct that the district court transfer this action to the Northern District of California."

This case is Luxpro Corp. v. Apple, Inc., Supreme Court of the U.S., Sup. Ct. No. 10-615, a petition for writ of certiorari to the U.S. Court of Appeals for the 8th Circuit, App. Ct. 09-3689.

More News

12/16. Rep. Jay Inslee (D-WA), Rep. Mary Mack (R-CA), Rep. Anna Eshoo (D-CA), Rep. Tom Cole (R-OK), Rep. Dan Kildee (D-MI), Rep. Peter DeFazio (D-OR), and Rep. Raul Grijalva (D-AZ) introduced HR 6530 [LOC | WW], a bill to amend 47 U.S.C. 254 (regarding universal service) and 47 U.S.C. 410 to put a representative of Indian tribes on the Federal-State Joint Board. This bill was referred to the House Commerce Committee (HCC).

12/16. The U.S. Court of Appeals (4thCir) issued its "unpublished" opinion [21 pages in PDF] in Verizon v. Core Communications, an interconnection dispute arising involving 47 U.S.C. 251, and the Federal Communications Commission's (FCC) rules thereunder. The Court of Appeals reversed the judgment of the District Court. The Court of Appeals held that Verizon Maryland violated the FCC's rules when it refused to provide the competitive local exchange carrier (CLEC), Core Communications, with the technically feasible, non-discriminatory interconnection that Core had requested. This case is Verizon Maryland, Inc. v. Core Communications, Inc., U.S. Court of Appeals for the 4th Circuit, App. Ct. No. 09-1839, an appeal from the U.S. District Court for the Maryland, at Baltimore, D.C. No. 1:08-cv-00503-JFM. Judge Frederick Motz presiding. Judge Gregory wrote the opinion of the Court of Appeals, in which Judges Wilkinson and King joined.

12/14. The Phoenix Center for Advanced Legal and Economic Public Policy Studies released a paper [37 pages in PDF] titled "Wobbling Back to the Fire: Economic Efficiency and the Creation of a Retail Market for Set-Top Boxes". The authors are the Phoenix Center's Randolph Beard, George Ford, Lawrence Spiwak, and Michael Stern.

12/13. The Supreme Court denied certiorari in Benun v. Fujifilm, a patent infringement case involving technology for single use cameras. See, Orders List at page 3, and Supreme Court docket. This lets stand the May 27, 2010, opinion [11 pages in PDF] of the U.S. Court of Appeals (FedCir). This case is Jack Benun, et al. v. Fujifilm Corp., Supreme Court of the U.S., Sup. Ct. No. 10-486, a petition for writ of certiorari to the U.S. Court of Appeals for the Federal Circuit, App. Ct. No. 2009-1487.

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