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Thursday, January 17, 2013, Alert No. 2,510.
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Strickling Praises NTIA BTOP Grants

1/16. Lawrence Strickling, head of the National Telecommunications and Information Administration (NTIA), gave a speech in Washington DC in which he praised the NTIA's Broadband Technology Opportunities Program (BTOP). He asserted that it "has been very successful".

Lawrence StricklingStrickling (at right) stated that the projects funded by the BTOP "have the potential to reshape our nation just as did the Rural Electrification Administration did nearly 80 years ago". He argued that "Now, as back then, there is a group of Americans being left behind as technology advances without them."

He also said that funded projects have "created thousands of jobs" and are driving digital literacy.

HR 1 [ LOC | WW], the huge and wasteful spending bill passed by the 111th Congress in February of 2009, provided $7.2 Billion to the NTIA and Rural Utilities Service (RUS) for the purpose of promoting broadband.

The bill provided $4.7 Billion for NTIA to create the BTOP to manage competitive grants to entities for broadband infrastructure, public computer centers, and projects to stimulate consumer demand for, and adoption of, broadband.

HR 1 was also titled "American Reinvestment and Recovery Act".

Most of Strickling's speech consisted of anecdotes about various projects funded by the NTIA's BTOP.

11th Circuit Addresses FTC Remedies for Deceptive Marketing

1/16. The U.S. Court of Appeals (11thCir) issued its opinion [7 pages in PDF] in FTC v. Washington Data Resources, a case regarding remedies available for violation of Section 5 of the FTC Act, which is codified at 15 U.S.C. 45.

The Federal Trade Commission (FTC) filed a complaint in November of 2009 in the U.S. District Court (MDFl) against the defendants alleging violation of Section 5 in connection with their deceptive activities relating to the sale and marketing of mortgage relief and home foreclosure services.

The District Court issued an opinion, order and judgment against the individual defendants who are appellants in this appeal in April, June and July of  2012. It calculated damages based on the net revenue, rather than the profits, they received during the time they controlled the offending enterprise. They brought the present appeal.

The Court of Appeals affirmed. It cited other circuits that allow the net revenue method. It wrote that "We agree with our sister circuits and today hold that the amount of net revenue (gross receipts minus refunds), rather than the amount of profit (net revenue minus expenses), is the correct measure of unjust gains under section 13(b)." Parentheses in original.) See, Section 13(b) of the FTC Act, which is codified at 15 U.S.C. 53(b).

This case is FTC v. Washington Data Resources, Inc., Richard A. Bishop, Brent McDaniel, and Tyna Caldwell, U.S. Court of Appeals for the 11th Circuit, App. Ct. No. 12-13392, an appeal from the U.S. District Court for the Middle District of Florida, D.C. Docket No. 8:09-cv-02309-SDM-TBM. The Court of Appeals issued a per curiam opinion of Judges Hull, Wilson and Jordan.

See also, the FTC's web page containing hyperlinks to pleadings in this matter.

Supreme Court Denies Cert in Case Involving Patent Settlement No-Challenge Clause

1/14. The Supreme Court denied certiorari in Rates Technology v. Speakeasy. See, Orders List [15 pages in PDF] at page 2. This lets stand the judgment of the U.S. Court of Appeals (2ndCir), which affirmed the judgment of the U.S. District Court (SDNY). The lower courts held void a patent settlement agreement no-challenge clause.

The issue is whether a clause in a settlement agreement which bars a patent licensee from later challenging the patent's validity is void for public policy reasons under the Supreme Court's 1969 opinion in Lear  v. Adkins, 395 U.S. 653, where the parties entered into the agreement after an accusation of infringement by the patent owner but prior to any litigation. The Court of Appeals held that the clause is void under Lear v. Adkins. See, July 10, 2012 opinion.

This case is Rates Technology, Inc. v. Speakeasy, Inc., et al., Sup. Ct. No. 12-402, a petition for writ of certiorari to the U.S. Court of Appeals for the 2nd Circuit, App. Ct. No. 11-4462. The Court of Appeals heard an appeal from the U.S. District Court for the Southern District of New York. See also, Supreme Court docket.

Can We Talk?

1/17. The U.S. Court of Appeals (7thCir) issued its opinion in Bogie v. Rosenberg, an invasion of privacy and misappropriation of image case in the federal courts under diversity jurisdiction.

Joan Rosenberg, who is better known as comedian Joan Rivers, and others published a film [Amazon] in 2010 titled "Joan Rivers: A Piece of Work" that included a 16 second conversation between the plaintiff, Ann Bogie, and Rivers about the nature of comedy, without license from Bogie.

The District Court dismissed the complaint. The Court of Appeals affirmed. It applied Wisconsin law. It held that there was no invasion of privacy because Bogie had no reasonable expectation of privacy, and because the segment was not highly offensive. Bogie had approached Rivers in the presence of others, and a camera.

The Court of Appeals also held that there was no misappropriation on the dual grounds that the segment fell under the incidental use exception, and the newsworthiness or public interest exception.

This case is Ann Bogie v. Joan Alexandra Molinsky Sanger Rosenberg, et al., U.S. Court of Appeals for the 7th Circuit, App. Ct. No. 12-1923, an appeal from the U.S. District Court for the Western District of Wisconsin, D.C. No. 11-cv-0324, Judge William Conley presiding. Judge Hamilton wrote the opinion of the Court of Appeals, in which Judges Bauer and Flaum joined.

People and Appointments

1/16. President Obama announced his intent to nominate Vinton Cerf to be a member of the National Science Foundation's (NSF) National Science Board. See, White House news office release.

1/10. The W3C Advisory Committee announced the selection of new members of its Technical Architecture Group (TAG): Marcos Caceres, Yehuda Katz (jQuery Foundation), Alex Russell (Google), and Anne van Kesteren. They replace Peter Linss (HP), Ashok Malhotra (Oracle), and Larry Masinter (Adobe). The other members are Noah Mendelsohn, Jonathan Rees, Jeni Tennison (Open Data Institute), Henry Thompson (University of Edinburgh), and Tim Berners-Lee.

More News

1/17. The Federal Trade Commission (FTC) published a notice in the Federal Register (FR) that contains its new COPPA rules. The effective date is July 1, 2013. See, FR, Vol. 78, No. 12, January 17, 2013, at Pages 3971-4014. See also, story titled "FTC Releases Expanded COPPA Rules" in TLJ Daily E-Mail Alert No. 2,494, December 19, 2012.

1/15. The Federal Trade Commission (FTC) granted early termination on January 14, 2013 of the Hart Scott Rodino Act (HSR) waiting period for the transaction involving Oracle Corporation and Eloqua, Inc. See, January 15 FTC notice. Oracle stated in a December 20 release that Eloqua is a "provider of cloud-based marketing automation and revenue performance management software".

1/4. American Antitrust Institute (AAI) released a paper [19 pages in PDF] titled "The Dormant Commerce Clause, Anticompetitive State Regulation, Competition and Consumers". The author is the AAI's Kexin Li. This article focuses on the May 28, 2009 opinion of the U.S. Court of Appeals (9thCir) in National Association of Optometrists & Opticians v. Brown, 567 F.3d 521.

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In This Issue
This issue contains the following items:
  Strickling Praises NTIA BTOP Grants
  11th Circuit Addresses FTC Remedies for Deceptive Marketing
  Supreme Court Denies Cert in Case Involving Patent Settlement No-Challenge Clause
  Can We Talk?
  People and Appointments
  More News
Washington Tech Calendar
New items are highlighted in red.
Friday, January 18

The House will meet at 3:00 PM in pro forma session. See, House calendar for 113th Congress, 1st Session.

The Senate will not meet.

Supreme Court conference day. See, Supreme Court calendar.

12:00 NOON. There will be a closed event titled "Evolving Your Facebook Strategy". The speaker will be Mary Nahorniak (USA Today Social Media Editor). This event is open only to members of the National Press Club (NPC). Sold out. See, notice. For more information, contact Anthony Shop at anthony at socialdriver dot com. Location: NPC, McClendon Room, 13th Floor, 529 14th St., NW.

Sunday, January 20

Inauguration Day.

Monday, January 21

The House will meet. See, House calendar for 113th Congress, 1st Session.

The Senate will meet at 11:30 AM.

Martin Luther King's birthday. This is a federal holiday. See, OPM list of 2013 federal holidays.

Tuesday, January 22

The House will meet. See, House calendar for 113th Congress, 1st Session.

10:00 AM. The House Commerce Committee (HCC) will hold its organizational meeting for the 113th Congress. See, notice. Location: Room 2123, Rayburn Building.

12:30 PM. The House Oversight and Government Reform Committee (HOGRC) will hold its organizational meeting for the 113th Congress. Location: Room 2154, Rayburn Building.

1:00 PM. The House Oversight and Government Reform Committee (HOGRC) will hold a hearing titled "Wasting Information Technology Dollars: How Can the Federal Government Reform its IT Investment Strategy?".  See, notice. Location: Room 2154, Rayburn Building.

2:30 PM. The Senate Intelligence Committee (SIC) will hold a closed hearing on undisclosed topics. See, notice. Location: Room 219, Hart Building.

3:30 - 5:15 PM. The American Enterprise Institute (AEI) will host an event titled "China in 2013 and Beyond". The speakers will be Frank Lavin (Export Now), Carolyn Bartholomew (US-China Economic and Security Review Commission), Dan Blumenthal (AEI), Phillip Swagel (AEI), and Danielle Pletka (AEI). Webcast. Free. Open to the public. See, notice. For more information, contact Lara Crouch at lara dot crouch at aei dot org or 202-862-7160. Location: AEI, 12th floor, 1150 17th St., NW.

5:00 PM. Deadline to submit reply comments to the Copyright Office (CO) in response to its notice in the Federal Register regarding its proposed fee schedule for filing cable and satellite statements of account. See, FR, Vol. 77, No. 235, December 6, 2012, at Pages 72788-72791.

Day one of a two day conference titled "State of the Net Conference". Prices vary. See, notice and registration page. Location: Hyatt Regency, 400 New Jersey Ave., NW.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) [18 pages in PDF] regarding the amateur radio service. The FCC adopted this NPRM on October 1, 2012, and released the text on October 2. It is FCC 12-121 in WT Docket Nos. 12-283 and 09-209. See, notice in the Federal Register, Vol. 77, No. 206, October 24, 2012, at Pages 64947-64949.

EXTENDED TO FEBRUARY 13. Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) regarding its licensing and operating rules for satellite services. The FCC adopted and released this NPRM on September 28, 2012. It is FCC 12-117 in IB Docket No. 12-267. See, original notice in the Federal Register, Vol. 77, No. 217, November 8, 2012, at Pages 67171-67201. See also, extension notice in the Federal Register, Vol. 77, No. 250, December 31, 2012, at Pages 77001-77002.

Wednesday, January 23

The House will meet. See, House calendar for 113th Congress, 1st Session.

Day two of a two day conference titled "State of the Net Conference". Prices vary. See, notice and registration page. Location: Hyatt Regency, 400 New Jersey Ave., NW.

9:00 AM. The House Science Committee (HSC) will hold its organizational meeting for the 113th Congress. Location: Room 2318, Rayburn Building.

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in American Electric Power Serv. v. FCC, App. Ct. No. 11-1146. This is a challenge to the Federal Communications Commission's (FCC) pole attachment rules. See, April 7, 2011, Report and Order and Order on Reconsideration [144 pages in PDF]. It is FCC 11-50 in WC Docket No. 07-245 and GN Docket No. 09-51. See also, FCC brief. This case is the third of three on the schedule. Judges Sentelle, Tatel and Williams will preside. Location: USCA Courtroom, 5th floor, Prettyman Courthouse, 333 Constitution Ave., NW.

10:00 AM. The House Homeland Security Committee (HHSC) will hold its organizational meeting for the 113th Congress. See, notice. Location: Room 311, Cannon Building.

10:00 AM. The Senate Judiciary Committee (SJC) will hold a hearing on judicial nominations: Nelson Roman (USDC/SDNY), Analisa Torres (USDC/SDNY), Raymond Moore (USDC/DColo), Derrick Watson (USDC/DHaw), and Claire Kelly (USCIT). See, notice. Webcast. Location: Room 226, Dirksen Building.

11:00 AM. The House Appropriations Committee (HAC) will hold its organizational meeting for the 113th Congress. See, notice. Location: Room 2359, Rayburn Building.

1:00 - 2:30 PM. The American Bar Association (ABA) will host a webcast and teleconferenced panel discussion titled "Trademark Fundamentals: The United States Patent and Trademark Office Federal Registration Process". The speakers will be Dawn Cassie (Navigant Consulting), Maureen Gorman (Marshall Gerstein Borun), Casey Mangan (Allstate Insurance Company), and Rene Guess (Procter & Gamble). Prices vary. CLE credits. See, notice.

Thursday, January 24

The House will not meet. See, House calendar for 113th Congress, 1st Session.

9:00 - 10:30 PM. The Information Technology and Innovation Foundation (ITIF) will host a panel discussion titled "Data Innovation in Government". The speakers will be Robert Bectel (Department of Energy), Teresa Carlson (Amazon Web Services), Richard Culatta (Department of Education), David Forrest (Department of Health and Human Services), Jason O'Connor (Lockheed Martin), and Daniel Castro (ITIF). See, notice. Location: ITIF/ITIC, Suite 610A, 1101 K St., NW.

10:00 AM. The Senate Foreign Relations Committee (SFRC) will hold a hearing on the nomination of John Kerry to be Secretary of State. See, notice. Location: Room 216, Hart Building.

12:00 NOON - 1:15 PM. The American Bar Association's (ABA) Section of Antitrust Law will host a teleconferenced panel discussion titled "Recent Developments in Two-Sided Markets in US and Canada". The speakers will be Micah Wood (Blakes), David Evans (Global Economics Group), Roger Ware (Queens University), and Leah Brannon (Cleary Gottlieb). Free. No CLE credits. See, notice.

12:00 NOON - 3:00 PM. The Information Technology and Innovation Foundation (ITIF) will host a panel discussion titled "Data Innovation in the U.S. Economy". The speakers will be William Chernicoff (Toyota Motor North America), Scott Neuman (Opower), and Daniel Castro (ITIF). See, notice. Location: Reserve Officers Association, 5th Floor, One Constitution Ave., NE.

2:30 PM. The Senate Intelligence Committee (SIC) will hold a closed hearing on undisclosed topics. See, notice. Location: Room 219, Hart Building.

6:30 - 8:00 PM. The Federal Communications Bar Association (FCBA) Legislative Committee will host an event titled "Communications and Technology Policy in the 113th Congress". The participants will include House and Senate staff. No webcast. Closed to reporters. No CLE credits. Location: Georgetown University law school, Gewirz Student Center, 12th Floor, 120 F St., NW.

Friday, January 25

The House will not meet. See, House calendar for 113th Congress, 1st Session.

12:00 NOON - 1:00 PM. The American Bar Association's (ABA) Section of Antitrust Law will host a teleconferenced panel discussion titled "Criminal Antitrust Update". The speakers will be Anne Marie Cushmac (SunTrust Banks), Mark Rosman (Wilson Sonsini), Jeff VanHooreweghe (Wilson Sonsini), and Creighton Macy (Wilson Sonsini). Free. No CLE credits. See, notice.

Deadline to submit written comments to the U.S. Patent and Trademark Office (USPTO) regarding its January 11, 2013 roundtable on the possibility of changing USPTO rules of practice to require the disclosure of real party in interest information during patent prosecution and at certain times post-issuance. See, notice in the Federal Register, Vol. 77, No. 227, November 26, 2012, at Pages 70385-70389. See also, story titled "USPTO to Host Roundtable on Requiring Real Party in Interest Disclosures" in TLJ Daily E-Mail Alert No. 2,483, December 5, 2012.

EXTENDED FROM DECEMBER 21. Extended deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) [205 pages in PDF] regarding incentive auctions. The FCC adopted this NPRM on September 28, and released the text on October 2. It is FCC 12-118 in Docket No. 12-268. See, notice in the Federal Register,  Vol. 77, No. 225, November 21, 2012, at Pages 69933-69992. See also, stories titled "FCC Adopts NPRM on Incentive Auctions" and "FCC Adopts Spectrum Aggregation NPRM" in TLJ Daily E-Mail Alert No. 2,455, October 1, 2012. See, extension notice in the Federal Register, Vol. 77, No. 239, December 12, 2012, at Page 73969.