8/20. Acting Secretary of Commerce Rebecca Blank appointed twelve members of the Board of the First Responder Network Authority (FirstNet). See, Department of Commerce (DOC) release and release.

• Tim Bryan, CEO of the National Rural Telecommunications Cooperative (and former Nextel executive).
• Chuck Dowd, Deputy Chief of the New York City Police Department.
• Craig Farrill, a founder and Director of Kodiak Networks (and former Vodafone and AirTouch executive).
• Paul Fitzgerald, Sheriff of Story County, Iowa.
• Sam Ginn, former wireless executive (Vodafone, AirTouch, and PacTel).
• Jeffrey Johnson, CEO of the Western Fire Chiefs Association.
• William Keever, retired Vodafone executive.
• Kevin McGinnis, North East Mobile Health Services.
• Ed Reynolds, former telecommunications executive (AT&T, BellSouth Mobility, and Cingular).
• Susan Swenson, retired wireless executive (PacTel, Leap Wireless, Cellular One, and T-Mobile).
• Teri Takai, former CIO of Michigan and California. 
• Wellington Webb, retired, former mayor of Denver, Colorado.

Blank named Ginn Chairman.

These twelve persons are not particularly political. Webb is a retired career politician, Democrat, and financial contributor to President Obama. On the other hand, Ginn has been a major contributor to Republican candidates and committees. An online search of Federal Election Commission (FEC) contribution records shows that the others have not been major contributors in recent federal election cycles.

Six are mostly retired senior executives of wireless service providers: Bryan, Farrill, Ginn, Keever, Reynolds, Swenson. Three are Vodafone alumni.

Three are current or former law enforcement or fire protection officials: Dowd, Fitzgerald, Johnson.

Rep. Doris Matsui (D-CA) stated in a release that "I am particularly pleased that Teri Takai has been appointed to the Board. As a former CIO of the State of California, Teri will bring unique and critical knowledge and expertise to the process, having worked directly with not only state and local officials, but also with the public safety community."

On February 17, 2012, the House and Senate passed the conference report [270 pages in PDF] on HR 3630 [LOC | WW], the "Middle Class Tax Relief and Job Creation Act of 2012". Title VI of this bill gives the Federal Communications Commission (FCC) authority to conduct incentive auctions. It also reallocates the 700 MHz D Block for an interoperable public safety broadband network, and provides for the creation, governance, and funding of such a public safety network.

The just announced twelve appointments are for this governing body. The Act also provides that the three other members are the Secretary of Homeland Security (currently Janet Napolitano), Attorney General (Eric Holder), and Director of the Office of Management and Budget (Jeffrey Zients is acting Director).

The Act provides that at least 3 of the 12 appointments made by the Secretary of Commerce shall be "individuals who have served as public safety professionals". Blank appointed the statutory minimum.

The Federal Communications Commission (FCC) has no representation on this Board.

See also, stories titled "House and Senate Negotiators Reach Agreement on Spectrum Legislation", "Summary of Spectrum Bill", and "Reaction to Spectrum Bill" in TLJ Daily E-Mail Alert No. 2,339, February 17, 2012, story titled "House and Senate Pass Spectrum Bill" in TLJ Daily E-Mail Alert No. 2,340, February 18, 2012, and story titled "Obama Signs Spectrum Bill into Law" in TLJ Daily E-Mail Alert No. 2,345, February 23, 2012.

8/17. The U.S. District District Court (NDCal) issued an order [8 pages in PDF] in Fraley v. Facebook that denies preliminary approval of a proposed settlement of a putative class action arising out of Facebook's use of users' names and likenesses in paid advertisements.

The lawyers who filed the complaint, and who stand to benefit from the settlement, allege violation of California Civil Code §3344, which provides for a right of publicity.

Under the proposed settlement, the members of the class whose names and likenesses Facebook used, would receive nothing, while the lawyers who brought the case would receive up to $10 Million. It also provides for cy pres payments of $10 Million to organizations involved in internet privacy issues.

The Court noted that the class size court be around 100 Million people, making individual payments logistically difficult, and payment amounts very small.

Under Section 3344, the minimum award is $750 per violation. Hence, hypothetically, a jury award could run into the billions.

Section 3344 provides that "Any person who knowingly uses another's name, voice, signature, photograph, or likeness, in any manner, on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods or services, without such person's prior consent, or, in the case of a minor, the prior consent of his parent or legal guardian, shall be liable for any damages sustained by the person or persons injured as a result thereof. In addition, in any action brought under this section, the person who violated the section shall be liable to the injured party or parties in an amount equal to the greater of seven hundred fifty dollars ($750) or the actual damages suffered by him or her as a result of the unauthorized use, and any profits from the unauthorized use that are attributable to the use and are not taken into account in computing the actual damages. In establishing such profits, the injured party or parties are required to present proof only of the gross revenue attributable to such use, and the person who violated this section is required to prove his or her deductible expenses. Punitive damages may also be awarded to the injured party or parties. The prevailing party in any action under this section shall also be entitled to attorney's fees and costs."

The Court wrote that "The issue this presents appears to be a novel one: Can a cy pres-only settlement be justified on the basis that the class size is simply too large for direct monetary relief? Or, notwithstanding the strong policy favoring settlements, are some class actions simply too big to settle?"

Then, the Court provided no holding or answer. It discussed issues, denied the motion, without prejudice, instructed the lawyers to refile with more information, and set the date of December 6 for a case management conference.

Nominally, the plaintiffs are Angel Fraley and Facebook subscribers whose likenesses and names were used by Facebook. Theoretically, class representatives, such as Angel Fraley, sue on behalf of, and for the benefit of the similarly situated, but unnamed plaintiffs.

However, as with most class actions, the real party in interest is the plaintiffs class action law firm. The class action lawyers have little incentive to settle cases in a manner that compensates the class members, except to the extent that it increases their attorneys fees. The incentive of class action lawyers is their monetary recovery. Hence, some class action cases are settled with class members receiving little if any compensation, but with bounteous compensation to the class action lawyers.

And consequently, the Federal Rules of Civil Procedure (FRCP) require court certification of the class, and court approval of any settlement. See, FRCP Rule 23.

The Arns Law Firm, which focuses on class actions, filed its original complaint in state court in California on March 18, 2011. Facebook, which is represented by the Cooley law firm, removed the action to the U.S. District Court. See, amended complaint.

Facebook brought and lost frivolous motions to dismiss, in which it asserted Section 230 immunity, and the Section 3344 exception for "use of a name, voice, signature, photograph, or likeness in connection with any news, public affairs, or sports broadcast or account, or any political campaign". See, December 16, 2011 order.

On August 2, 2012, the Electronic Privacy Information Center (EPIC), Center for Democracy and Technology (CDT), Privacy Rights Clearinghouse and Georgetown University Law Center's Institute for Public Representation submitted to the District Court an opposition to the proposed settlement, on the grounds that none of the cy pres payments would go to them.

They wrote that "A cy pres distribution may be appropriate here because the class is large and because there is only potential of a small individual recovery."

This case is Angel Fraley v. Facebook, Inc., U.S. District Court for the Northern District of California, San Francisco Division, D.C. No. C 11-1726 RS, Judge Richard Seeborg presiding.

8/20. On August 8, 2012, the National Cable & Telecommunications Association's (NCTA) submitted to the Federal Communications Commission (FCC) a Petition for Partial Reconsideration [7 pages in PDF] of the FCC's Report and Order [62 pages in PDF] implementing the Commercial Advertisement Loudness Mitigation Act, or CALM Act.

This Act was S 2847 [LOC | WW] in the 111th Congress. President Obama signed it on December 17, 2010. It is codified at 47 U.S.C. § 621. See, story titled "President Signs CALM Act" in TLJ Daily E-Mail Alert No. 2,181, December 17, 2010.

The FCC adopted and released this R&O on December 13, 2011. It is FCC 11-182 in MB Docket No. 11-93.

The NCTA argues that the FCC incorrectly included promotions of television programming within commercial advertisements.

It also argues that the FCC should "clarify that a cable operator will not be held liable in instances where, after performing spot checks of embedded network advertising, the operator has notified that network and the Commission of the network’s non-compliance".

The NCTA also argues that the FCC should clarify that it will "not prohibit cable operators from contacting program networks when performing spot checks".

Initial comments are due by September 4. Reply comments are due by September 14. See, notice in the Federal Register, Vol. 77, No. 161, August 20, 2012, at Page 50071.

See also, stories titled "House Passes CALM Act" in TLJ Daily E-Mail Alert No. 2,167, December 3, 2010, and "Senate Passes Bill to Regulate Volume of TV Commercials" in TLJ Daily E-Mail Alert No. 2,137, October 1, 2010.

8/17. The Securities and Exchange Commission (SEC) filed a complaint [23 pages in PDF] in the U.S. District Court (WDNC) against Rex Venture Groups LLC and Paul Burks alleging unregistered offer and sale of securities in violation of Sections 5(a) and 5(c) of the Securities Act, and securities fraud in violation of Section 17 of the Securities Act and Section 10b of the Exchange Act, in connection with the operation of the zeekler.com web site and ZeekRewards program.

The complaint alleges that defendants operate a penny auction web site at zeekler.com, and sell  participation in associated "ZeekRewards" programs named "Retail Profit Pool" and "Matrix". But, the SEC alleges, these amount to the sale of unregistered securities in a massive ponzi and pyramid scheme.

The complaint alleges that "Approximately 98% of ZeekRewards' total revenues, and correspondingly the purported share of ``net profits´´ paid to current investors, are comprised of funds received from new investors."

The SEC added in a release that "Last month, ZeekRewards brought in approximately $162 million while total investor cash payouts were approximately $160 million."

The SEC also announced that "Burks has agreed to settle the SEC's charges against him without admitting or denying the allegations, and agreed to cooperate with a court-appointed receiver."

The zeekler.com web site now contains a notice that states that "Zeek Rewards is currently unavailable".

This case is Rex Venture Groups LLC, dba ZeekRewards.com, and Paul R. Burks, U.S. District Court for Western District of North Carolina, Charlotte Division, D.C. No. 3:12-cv-00519-GCM

10:00 AM - 12:00 PM. The Center for American Progress (CAP) will host a panel discussion titled "Comparing U.S., Chinese, and Indian Investments in the Next-Generation Workforce". The speakers will be Eric Hanushek (Stanford University), Governor Jack Markell (D-DE), Bob Carpenter (Chesapeake Beach Consulting), Marilyn Reznick (AT&T), and Ann O'Leary (CAP). See, notice. Location: CAP, 10th Floor, 1333 H St., NW.

1:00 - 2:30 PM. The American Bar Association (ABA) will host a webcast and telecast panel discussion titled "Mayo v. Prometheus: The Supreme Court's New Methodology for Analyzing Patent Eligibility". The speakers will be Robert Armitage (Eli Lilly), Thomas Krauss (USPTO), and Denise DeFranco (Finnegan Henderson). Prices vary. CLE credits. See, notice.

9:30 AM - 1:00 PM. The Department of Commerce's (DOC) National Telecommunications and Information Administration (NTIA) will hold one in a series of meetings regarding consumer data privacy in the context of mobile applications. See, notice in the Federal Register, Vol. 77, No. 149, Thursday, August 2, 2012, Pages 46067-46068. Location: Auditorium, DOC, Hoover Building, 14th Street and Constitution Ave., NW.

12:00 NOON. The World Wide Web Consortium's (W3C) Tracking Protection Working Group will meet by teleconference. The call in number is 1-617-761-6200. The passcode is TRACK (87225).

11:00 AM - 12:30 PM. The American Bar Association (ABA) will host a webcast and telecast presentation titled "Protecting Your Intellectual Property: Best Practices for China in 2012". The speaker will be James Zimmerman (Sheppard Mullin). Prices vary. CLE credits. See, notice.

2:00 - 4:00 PM. The Small Business Administration (SBA) will host a webcast program on the Small Business Innovation Research (SBIR) and Small Business Technology Transfer Program (STTR) reauthorization act. See, notice in the Federal Register, Vol. 77, No. 151, Monday, August 6, 2012, at Page 46909.

6:00 - 9:15 PM. The DC Bar Association will host a presentation titled "Federal Lobbying 2012: A Guide to Regulation and Compliance". The speaker will be Andrew Siff (Siff & Associates). The price to attend ranges from $89 to $129. Reporters are barred from attending most DC Bar events. CLE credits. See, notice. For more information, call 202-626-3488. Location: DC Bar Conference Center, 1101 K St., NW.

Day one of a two day event hosted by the American Intellectual Property Law Association (AIPLA) titled "AIPLA Patent Prosecution Practical Patent Prosecution Training for New Lawyers". See, notice. For more information, contact aipla at aipla dot org or 703-415-0780. Location: Alexandria, VA.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to the Wireline Competition Bureau's WCB) Public Notice [23 pages in PDF] regarding expanding FCC subsidies for rural health care providers to include broadband. The FCC released this item on July 19, 2012. It is DA 12-1166 in WC Docket No. 02-60. See, notice in the Federal Register, Vol. 77, No. 144, Thursday, July 26, 2012, at Pages 43773-43780.

12:00 NOON - 1:30 PM. The DC Bar Association will host a presentation titled "Building Momentum: Advanced LinkedIn for Lawyers". The speaker will be Tasha Coleman (Upward Action). Free. No CLE credits. See, notice. For more information, call 202-626-3488. The DC Bar has a history of barring reporters from its events. Location: DC Bar Conference Center, 1101 K St., NW.

1:00 - 2:30 PM. The American Bar Association (ABA) will host a webcast and telecast panel discussion titled "The America Invents Act: The Boundaries of Prior Art". The speakers will be Steve Chang (Banner & Witcoff), Susanne Jones (O'Brien Jones), and Janet Hendrickson (Senniger Powers). Prices vary. CLE credits. See, notice.

Day two of a two day event hosted by the American Intellectual Property Law Association (AIPLA) titled "AIPLA Patent Prosecution Practical Patent Prosecution Training for New Lawyers". See, notice. For more information, contact aipla at aipla dot org or call 703-415-0780. Location: Alexandria, VA.

Day one of four of the Republican National Convention.

Deadline to submit comments to the Office of the U.S. Trade Representative (OUSTR) regarding the complaints filed with the World Trade Organization (WTO) by the US, Japan and EU against the People's Republic of China (PRC) regarding its rare earth materials export policies. See, notice in the Federal Register, Vol. 77, No. 146, Monday, July 30, 2012, at Pages 44706-44707.

Day two of four of the Republican National Convention.

Day three of four of the Republican National Convention.

9:30 AM - 1:00 PM. The Department of Commerce's (DOC) National Telecommunications and Information Administration (NTIA) will hold one in a series of meetings regarding consumer data privacy in the context of mobile applications. See, notice in the Federal Register, Vol. 77, No. 149, Thursday, August 2, 2012, Pages 46067-46068. Location: Auditorium, DOC, Hoover Building, 14th Street and Constitution Ave., NW.

12:00 NOON. The World Wide Web Consortium's (W3C) Tracking Protection Working Group will meet by teleconference. The call in number is 1-617-761-6200. The passcode is TRACK (87225).

2:00 - 4:00 PM. The Small Business Administration (SBA) will host a webcast program on the Small Business Innovation Research (SBIR) and Small Business Technology Transfer Program (STTR) reauthorization act. See, notice in the Federal Register, Vol. 77, No. 151, Monday, August 6, 2012, at Page 46909.

8/20. The Federal Trade Commission (FTC) published a notice in the Federal Register (FR) that announces, describes, recites, and sets the comments deadline for, it proposed rules regarding when a transaction involving the transfer of rights to a patent in the pharmaceutical, including biologics, and medicine manufacturing industry is reportable under the Hart Scott Rodino Act. Comments are due by October 25, 2012. See, FR, Vol. 77, No. 161, August 20, 2012, at Pages 50057-50062.

8/20. The law firm of Proskauer Rose published a paper [20 pages in PDF] titled "Survey: Social Networks in the Workplace Around the World". It is an "informal survey of emerging trends and practices on the use of social media in the workplace", based upon responses from 120 businesses. It also includes "a brief summary of the developing law in relation to social networks and the workplace, which provides a valuable overview of the similarities and differences in different jurisdictions".

7/25. The Cato Institute published a paper [20 pages in PDF] titled "Corporate Welfare in the Federal Budget". The author is the Cato's Tad Dehaven. It begins, "Rising federal spending and huge deficits are pushing the nation toward a financial and economic crisis. Policymakers should find and eliminate wasteful, damaging, and unneeded programs in the federal budget." Moreover, "Corporate welfare doesn't aid economic growth and it is an affront to America’s constitutional principles of limited government and equality under the law." It identifies as one of the large examples of corporate welfare the Broadband Technology Opportunities Program (BTOP), administered by the Department of Commerce's (DOC) National Telecommunications and Information Administration (NTIA) and the Department of Agriculture's Rural Utilities Service. This paper states that BTOP "subsidies provide coverage in areas where the majority of households already have access to service. As a result, the benefit of providing broadband services to the relatively small number of unserved households is dramatically outweighed by the exorbitant cost to taxpayers." It adds that by subsidizing a competitor, these subsidies disincent private broadband investment, and reduce the incentive to develop even more advanced technologies. This Cato paper cites an April 13, 2011 paper [46 pages in PDF] titled "Evaluating the Cost-Effectiveness of RUS Broadband Subsidies: Three Case Studies", by Jeffrey Eisenach and Kevin Caves.

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