TLJ News from October 1-5, 2006

FCC Releases Agenda for October 12 Meeting

10/5. The Federal Communications Commission (FCC) released the agenda [PDF] for its event on Thursday, October 12, 2006, titled "Open Meeting". The FCC is scheduled to adopt several significant items.

AT&T BellSouth Merger. The FCC will consider a Memorandum Opinion and Order regarding the merger of AT&T and BellSouth, which is nominally an approval of the transfer of FCC licenses. See also, the FCC's web page for this merger review. This proceeding is WC Docket No.06-74.

White Space. The FCC will consider a First Report and Order and Further Notice of Proposed Rule Making in its proceeding titled "Unlicensed Operation in the TV Broadcast Bands", and numbered ET Docket No. 04-186. That is, this is the FCC's long awaited next step in its white space proceeding.

On May 13, 2004, the FCC adopted a notice of proposed rulemaking (NPRM) regarding use by unlicensed devices of broadcast television spectrum where the spectrum is not in use by broadcasters. The FCC released the text [38 pages in PDF] of this item on May 25, 2004. This NPRM is FCC 04-113 in ET Docket Nos. 04-186 and 02-380.

See also, story titled "FCC Adopts NPRM Regarding Unlicensed Use of Broadcast TV Spectrum" in TLJ Daily E-Mail Alert No. 898, May 14, 2004.

There are also stand alone bills pending in the House and Senate that address this issue. See, for example, S 2327, the "Wireless Innovation Act of 2006", introduced on February 17, 2006, by Sen. George Allen (R-VA) and others. See also, story titled "Sen. Allen Introduces Bill to Allow Unlicensed Wireless Use of Broadcast White Space" in TLJ Daily E-Mail Alert No. 1,314, February 21, 2006.

Also, the large communications regulation reform bill approved by the Senate Commerce Committee (SCC) on July 28, 2006, HR 5252 RS, contains white space provisions.

Title VI of the SCC bill would require the FCC to complete its broadcast white space rulemaking proceeding, to permit unlicensed, non-exclusive use of unassigned, non-licensed television broadcast channels. It states that "Within 270 days after the date of enactment of that Act, the Commission shall adopt technical and device rules in ET Docket No. 04–186 to facilitate the efficient use of eligible broadcast television frequencies by certified unlicensed devices, which shall include rules and procedures -- (1) to protect licensees from harmful interference from certified unlicensed devices; (2) to require certification of unlicensed devices designed to be operated in the eligible broadcast television frequencies ... (3) to require manufacturers of such devices to include a means of disabling or modifying the device remotely if the Commission determines that certain certified unlicensed devices may cause harmful interference to licensees; ..."

 See also, story titled "Mark Up of Title VI -- Use of Broadcast White Space" in TLJ Daily E-Mail Alert No. 1,404, July 5, 2006.

NOI on Broadband Industry Practices. The FCC will consider a Notice of Inquiry (NOI) regarding broadband industry practices. The FCC's agenda provides no elaboration on this item.

Interference in the 700 MHz Band. The FCC will consider an order regarding Qualcomm's request for declaratory ruling regarding the interference protection requirements applicable to the 700 MHz Band.

On January 14, 2005, Qualcomm filed Petition for Declaratory Ruling with the FCC. This proceeding is WT Docket No. 05-7. See, pages 1-25, pages 26-50, and pages 51-56 [PDF page numbers].

Qualcomm wrote in its petition that it "requests that the FCC issue a declaratory ruling that the interference calculation procedures contained in the Office of Engineering and Technology Bulletin No. 69 ("OET-69") are acceptable to demonstrate compliance with the TV/DTV interference protection criteria of Section 27.60 of the FCC Rules. Grant of the request will speed the deployment of QUALCOMM's innovative MediaFLOTM service, a nationwide "mediacast" network delivering many channels of high quality video and audio content, as well as innovative mobile data applications, to third generation mobile phones a mass market prices on Channel 55, part of the Lower 700 MHz spectrum that the Commission auctioned in 2002 and 2003. In some areas of the country, until the DTV transition ends, QUALCOMM can only launch this new innovative service if it can coexist with the TV/DTV channels operating on channels adjacent to the or co-channel with QUALCOMM's Channel 55."

NOI on Video Competition. Finally, the FCC will consider a NOI seeking information to assist it in preparing its annual report on the status of competition in the market for the delivery of video programming.

This event is scheduled for 9:30 AM on Thursday, October 12, 2006 in the FCC's Commission Meeting Room, Room TW-C305, 445 12th Street, SW. The event will be webcast by the FCC. The FCC does not always consider all of the items on its published agenda. The FCC sometimes adds items to the agenda without providing the "one week" notice required 5 U.S.C. § 552b. The FCC does not always start its monthly meetings at the scheduled time. The FCC usually does not release at its meetings copies of the items that it adopts at its meetings.

SEC Official Addresses Online Identity Theft and Securities Fraud

10/5. John Walsh, Associate Director and Chief Counsel of the Securities and Exchange Commission's (SEC) Office of Compliance Inspections and Examinations, gave a speech titled "Compliance Professionals versus Identity Thieves" at the NRS 21st Annual Fall Compliance Conference in Scottsdale, Arizona.

He spoke about identity theft in the context of accessing online accounts to commit securities fraud. He identified four main categories of fraud. There is "family fraud", where "a relative, usually a spouse, child, or in-law, uses personal knowledge of the customer to gain access to the customer's account. Most commonly, the identity thief then loots the account."

There is the "classic account takeover", where "a stranger ... gains access to the account and then loots it. In many cases the looting is implemented by selling all the positions in the account and wiring the proceeds to a foreign jurisdiction, usually a very distant foreign jurisdiction."

There is "alias fraud", where "identity thieves play with their own money but they use the victim's identity as cover. Generally, they steal the victim's identity and use that identity to open an account. The thief then funds the account and uses it for trading or money laundering schemes." He said that this scheme makes it appear that "the victim is responsible for whatever bad conduct is going on.".

Walsh also pointed out that this and other types of fraud cause more than direct financial loss to the victims. He said that victims "may find themselves unable to engage in basic financial activities, such as opening a brokerage account, obtaining credit, or cashing checks. In some cases victims may find civil or criminal records attributed to their identity, and may suffer significant consequences, such as being prevented from obtaining employment."

Finally, he discussed a fourth type of fraud, "trading account takeover", where "a stranger takes control of an account, but removes no money. Instead, he or she uses the account to trade".

He elaborated that "In some cases the account may be used to buy securities the identity thief wants to unload. In other cases, it may be used to run a pump-and-dump manipulation; heavily trading a security to run up its price; and then, when the price gets high enough, taking profits out of a separate unaffiliated account."

Walsh noted that this type of fraud "avoids all the back-end controls you have in place to prevent funds from being improperly removed from your firm". Hence, he suggested that companies work with their IT personnel on front end security.

He also discussed a trading account takeover involving a computer hacker named Van Dinh. He said that Dinh "tricked a visitor to an investment analysis web site, who thought he was downloading a new stock-charting tool, into downloading malicious code -- a secret keystroke logging program  ..."

This program allowed Dinh "to monitor activity on the victim's home computer, including identifying the victim's on-line brokerage account, and log-in and password information", which Dinh then used to take over the victim's account. Dinh then placed "orders to buy certain options that he held that were about to expire worthless. He managed to unload the options, and in doing so he depleted virtually all the available cash in the victim's account."

The SEC filed its complaint in the U.S. District Court (EDMass) against Van T. Dinh on October 9, 2003. Dinh used the victim's account to purchase from Dinh worthless put option contracts for Cisco stock. Dinh was also criminally prosecuted, and sentenced to 13 months in prison. He also paid full restitution.

These cases are SEC v. Van T. Dinh, D.C. No. 03-CV-11964-RWZ, and United States v. Van T. Dinh, Criminal No. 03-40035-NMG. See also, SEC release of October 9, 2003, and SEC release of May 6, 2004.

Walsh said that "This is an increasingly popular variation. In fact, if you are looking for a single ``hot topic´´ in the world of identity theft, this is it."

IG Reports on Porn Surfing and Online Gambling at the Department of the Interior

10/4. The Department of the Interior's (DOI) Office of the Inspector General (OIG) released a report [15 pages in PDF] titled "Excessive Indulgences: Personal Use of the Internet at the Department of the Interior".

The report is written by Earl Devaney, who has been the Inspector General for the Department of the Interior (DOI) since August of 1999.

He wrote in a cover memorandum to the Secretary of the Interior that "We discovered that computer users at the Department have continued to access sexually explicit and gambling websites due to the lack of consistency in Department controls over Internet use. While not specifically prohibited, we also discovered that computer users spent significant time at Internet auction and on-line gaming websites, costing an estimated 104,221 hours in potential lost productivity over the course of a year."

However, the DOI is a huge agency, with about 80,000 employees. 104,221 hours, divided by 80,000 employees, comes to an average of about 1.3 wasted hours per employee.

The methodology was to study web site access logs for only one week. However, data was not collected for all components of the DOI, so the IG's estimate may be low.

The report states that "We collected Internet usage logs from six Bureaus and offices (Bureau of Land Management (BLM), Bureau of Reclamation (BOR), Minerals Management Service (MMS), National Park Service (NPS), Office of Surface Mining (OSM), and US Geological Survey (USGS)) for a specific 7-day period.  We then extracted and analyzed log entries, which are generated each time a computer accesses a website, using widely-accepted lists of keywords and popular Internet addresses for each category.  These lists were not exhaustive, as website addresses can frequently change. Both Fish and Wildlife Service (FWS) and National Business Center (NBC) were unable to provide the data we requested. The Bureau of Indian Affairs (BIA) was not included in our review because of the Cobell Court’s injunction against Internet use by BIA."

The report also states that "we discovered over 1,000,000 log entries where 7,763 Department computer users spent over 2,004 hours accessing game and auction sites during that same week. Over a period of 1 year, these veritable shopping and gaming binges could account for 104,221 hours of lost productivity."

The report also found that filtering software failed to block access. It states that "We found the use of the web filtering tools provide some level of protection for the Bureaus that used them, but users were still able to gain access to prohibited sites despite the employment of web filtering software.  In a final spot check in August 2006, we attempted access to eight known sexually explicit and gambling websites on each system. We were able to access sexually explicit photographs through BLM, FWS, and OSM computer systems, but not through the BOR computer system.  Additionally, we were able to access gambling sites using BOR, FWS, and OSM computers, but not through the BLM computer system.  Based on our findings, we believe that the Department and Bureaus would do well to not be lulled into a false sense of security that these filtering tools provide a significant level of protection."

Moreover, it states that "USGS, MMS, NBC, and NPS do not currently have any type of Internet monitoring or blocking software programs in place."

5th Circuit Rules in SBC Texas v. PUC Texas

10/4. The U.S. Court of Appeals (5thCir) issued its opinion [PDF] in Southwestern Bell v. PUC of Texas, affirming the District Court's judgment in favor of the PUC and AT&T. This is an interconnection case.

This opinion lacks the specificity and clarity usually found in other Court of Appeals opinions on this subject.

Southwestern Bell Telephone, dba SBC Texas, is an incumbent local exchange carrier (ILEC). 47 U.S.C. § 251 requires it to interconnect with competitive local exchange carriers (CLECs). The Public Utility Commission of Texas (PUCT) is the state commission for the purposes of arbitration and approval of  interconnection agreements under 47 U.S.C. § 252, and the application to enter the long distance market under 47 U.S.C. § 271.

Following passage of the Telecommunications Act of 1996, SBC Texas applied to Federal Communications Commission (FCC), pursuant to Section 271, for permission to provide in region interLATA service in the state of Texas (that is, to enter the long distance market). The FCC issued an order in 2000 allowing SBC Texas to do so. (See, FCC 00-238 in CC Docket No. 00-65.)

But first, the PUCT, SBC Texas, and others negotiated an agreement titled the "Texas 271 Agreement", which the Court of Appeals opinion sometimes refers to as the "T2A".

The Court of Appeals wrote that "The T2A represents a collaborative effort between many interested parties to develop a model interconnection agreement. The PUCT’s approval of the T2A symbolized a milestone in SBC Texas’s pursuit to gain the PUCT’s recommendation for FCC approval under section 271 of the Act. The T2A provides a contractual blueprint available to any CLEC operating in Texas and ensures nondiscriminatory access to SBC Texas’s network. More specifically, the Plan’s provisions demonstrated to both the PUCT and FCC that SBC Texas satisfied and would continue to satisfy the section 271 competitive checklist."

SBC Texas entered into interconnection agreements with CLECs in Texas based upon this T2A agreement.

In 2002, the PUCT issued the order at issue in this case (PUCT Order No. 45). It pertains to Section 271 compliance monitoring of SBC Texas.

SBC Texas filed a complaint in U.S. District Court (WDTex) against the PUCT alleging that the PUCT violated 47 U.S.C. §§ 251 & 252 by ordering SBC Texas to alter certain terms and conditions of the Performance Remedy Plan, contained in the interconnection agreements between SBC Texas and CLECs. It argued that the T2A prohibits unilateral changes.

The District Court granted summary judgment to the PUCT. SBC Texas brought the present appeal. The Court of Appeals affirmed.

The Court of Appeals wrote that "The issue on appeal is whether the PUCT acted arbitrarily and capriciously in issuing Order No. 45, which modified the Performance Remedy Plan of the Texas 271 Agreement, without the consent of SBC Texas. SBC Texas contends that the PUCT violated federal law and breached a binding contract by altering the terms and conditions of the State's model interconnection agreement."

The T2A provided that "Any changes to existing performance measures and this remedy plan shall be by mutual agreement of the parties and, if necessary, with respect to new measures and their appropriate classification, by arbitration."

The Court of Appeals concluded that Order No. 45 "modified" the T2A. But, it also concluded that Order No. 45 "creates neither new nor different contractual terms". And, it concluded that "the PUCT can make refinements to the T2A as the occasion arises so long as the changes do not contravene the Act."

And finally, the Court of Appeals concluded that "the PUCT did not act impermissibly arbitrary and capricious."

This case is Southwestern Bell Telephone, L.P. v. Public Utility Commission of Texas, et al., App. Ct. No. 05-50131, an appeal from the U.S. District Court for the Western District of Texas, San Antonio Division. Judge Stewart wrote the opinion of the Court of Appeals, in which Judges King and Dennis joined.

More News

10/4. The U.S. Court of Appeals (11thCir) issued its opinion [20 pages in PDF] in USA v. Eckhardt, affirming a conviction for violation of the Communications Decency Act in connection with leaving lewd and lascivious messages on a telephone answering machine. Eckhardt was convicted for violation of 47 U.S.C. § 223(a)(1)(C), which provides that "Whoever ... in interstate or foreign communications ... makes a telephone call or utilizes a telecommunications device, whether or not conversation or communication ensues, without disclosing his identity and with intent to annoy, abuse, threaten, or harass any person at the called number or who receives the communications ... shall be fined under title 18 or imprisoned not more than two years, or both". The Court of Appeals held that the statute is not void for vagueness or overbreadth. This case is USA v. Robert Eckhardt, U.S. Court of Appeals for the 11th Circuit, App. Ct. No. 05-12211, an appeal from the U.S. District Court for the Southern District of Florida.

Bush Discusses Surveillance, FISA and HR 5825

10/3. President Bush gave a speech in El Dorado Hills, California, at a campaign event for Rep. John Doolittle (R-CA). Bush addressed government surveillance as a partisan issue in election politics.

He said that "our people need the tools necessary to protect you. And that's why I established the Terrorist Surveillance Program, to monitor terrorist communications coming into this country and out of this country."

He continued that "On each of these programs -- the Patriot Act, and the Terrorist Surveillance Program, and the legislation to authorize aggressive interrogation of terrorists -- the Democrats say they share our goals, but when it comes time to vote, they have consistently opposed giving our personnel the tools they need to protect us. And this is an issue in this campaign."

The House approved HR 5825, the "Electronic Surveillance Modernization Act", sponsored by Rep. Heather Wilson (R-NM), on September 28, 2006. The House vote was 232-191. Republicans voted 214-13, while Democrats voted 18-177. See, Roll Call No. 502.

However, the Senate has not approved this as a stand alone bill. Moreover, this bill was not inserted into any of the conference reports that the House and Senate both approved just before adjourning for the elections on September 30, 2006.

See also, the House Judiciary Committee's (HJC) report, House Report No. 109-680, Part I and Part II. And see, letter [PDF] of various groups opposed to the bill, and critique [PDF] written by the Center for Democracy and Technology (CDT).

Bush stated in his speech on October 3 that "I know you're familiar with the program of the National Security Agency called the Terrorism Surveillance Program that I installed. I did so to protect you. The philosophy behind the program is pretty clear, pretty simple to understand: If al Qaeda or an al Qaeda associate is calling into the United States, we want to know why. We want to know their intentions. We want to be able to prevent an attack."

"People say, well, how do you know they're al Qaeda? Well, a lot of times, we're picking up information on the battlefield -- say, one of these people we pick up has got a phone number on their possession and it happens to be a U.S. phone number", said Bush.

"Last week, when the legislation providing additional authority for the Terrorist Surveillance Program came before the House of Representatives, 177 Democrats voted against listening in on terrorist communications. See, it's a clear position. It's a clear signal of how they view the world in which they live. I'm not saying these people are not patriotic; they are. I'm not saying they don't love America; they do. They just see the world differently. And it's an important issue in this campaign as to how we see the world."

Bush concluded that "I see the world as a dangerous place. I see the world with enemies coming to try to hurt us. I see our most important job is to protect you. And, therefore, we will give our folks on the front line of terror the tools necessary to do so."

Bush also spoke at length about the interrogation of terrorists.

Democratic Opposition to the FISA Bill. Rep. John Conyers (D-MI), the ranking Democrat on the HJC, spoke in opposition to HR 5825 in the House on September 28. He said that "we support our government intercepting each and every conversation involving al Qaeda and its supporters. But I cannot support legislation that not only fails to bring the warrantless surveillance program under the law, but dramatically expands the administration's authority to conduct warrantless surveillance on innocent Americans."

Rep. John ConyersRep. Conyers (at right) said that "This is the Bush bill. It is amazing to me that we would even be taking up a law that fails to regulate the present domestic spying program. Nearly 9 months after we first learned from the New York Times that there was a warrantless surveillance program going on, and we did not know it until then, there has been no attempt to conduct an independent inquiry into its legality."

He added that "Not only has the Congress failed to conduct any sort of investigation, but the administration summarily rejected all requests for a special counsel or Inspector General review, and when the Office of Professional Responsibility finally opened an investigation, the President of the United States himself squashed it by denying the investigators security clearances."

Rep. Jerrold Nadler (D-NY), a senior member of the HJC, decried "the right to spy on Americans in the United States without a warrant from a court". He stated in the House that "It is also a dangerous and easily abused power. We have plenty of experience with the abuse of that power. Remember J. Edgar Hoover wiretapping Martin Luther King, for example. That is why we have a Constitution. That is why we have courts. That is why we have checks and balances. That is why we have legal controls on the executive branch, not to protect the bad guys but to protect the rest of us from abuses of power."

Rep. Doolittle. Rep. Doolittle is perhaps best know in the tech sector for his cosponsorship of HR 1201, the "Digital Media Consumers' Rights Act of 2005". This bill would create a fair use exception to the Digital Millennium Copyright Act's (DMCA) ban on circumvention.

President Bush did not comment on this bill, or its subject matter, in this speech.

The lead sponsor is Rep. Rick Boucher (D-VA). Rep. Joe Barton (R-TX) is the third original cosponsor. This bill has not been approved by any committee or subcommittee. It is adamantly opposed by the music and movie industries.

Rep. Doolittle voted for HR 5825.

More News

10/3. The Government Accountability Office (GAO) released a report [PDF] titled "Information Security: The Centers for Medicare & Medicaid Services Needs to Improve Controls over Key Communication Network". The GAO examined the state of information security for the Department of Health and Human Services' (HHS) Centers for Medicare & Medicaid Services (CMS), which oversees the Medicare and Medicaid programs. The GAO report concludes that "Information security controls over the communication network were ineffective in protecting the confidentiality and availability of information and information resources." The report states that "the network had control weaknesses in areas such as user identification and authentication, user authorization, system boundary protection, cryptography, and audit and monitoring of security-related events. Taken collectively, these weaknesses place financial and personally identifiable medical information transmitted on the network at increased risk of unauthorized disclosure and could result in a disruption in service."

10/3. The Department of Agriculture's Rural Utilities Service (RUS) published a notice in the Federal Register that announces the depreciation rates for telecommunications plant for the period ending December 31, 2005. See, Federal Register, October 3, 2006, Vol. 71, No. 191, at Page 58371.

10/3. The Federal Communications Commission (FCC) held a pair of public hearings in California on regulation of media ownership. See, prepared statement [PDF] of FCC Chairman Kevin Martin, prepared statement [PDF] of Commissioner Michael Copps, prepared statement [PDF] of Commissioner Jonathan Adelstein, prepared statement [PDF] of Commissioner Robert McDowell,  and prepared statement [PDF] of Commissioner Deborah Tate.

McAfee Asserts That Microsoft's Vista Threatens Security

10/2. George Samenuk, Ch/CEO of McAffee, wrote an open letter [PDF] complaining about Microsoft's plan to deny security software providers access to the kernel of its forthcoming operating system named Vista. Samenuk argued that this is bad for computer users' security. However, he did not argue in this letter that Microsoft's practices violate antitrust or competition law.

Samenuk wrote that "Over the years, the most reliable defenders against the many, many vulnerabilities in the Microsoft operating systems have been the independent security companies such as McAfee. Yet, if Microsoft succeeds in its latest effort to hamstring these competitors, computers everywhere could be less secure."

He continued that "Computers are more secure today, thanks to relentless innovations by the security providers. Microsoft also has helped by allowing these companies’ products full access to system resources -- this has enabled the security products to better ``see´´ threats and deploy defenses against viruses and other attacks."

He wrote that "With its upcoming Vista operating system, Microsoft is embracing the flawed logic that computers will be more secure if it stops cooperating with the independent security firms. For the first time, Microsoft shut off security providers’ access to the core of its operating system -- what is known as the ``kernel.´´ At the same time, Microsoft has firmly embedded in Vista its own Windows Security Center -- a product that cannot be disabled even when the user purchases an alternative security solution. This approach results in confusion for customers and prevents genuine freedom of choice."

While Samenuk did not directly accuse Microsoft of abusing monopoly power, he did offer some hints. He wrote that "Microsoft seems to envision a world in which one giant company not only controls the systems that drive most computers around the world but also the security that protects those computers from viruses and other online threats. Only one approach protecting us all: when it fails, it fails for 97% of the world’s desktops."

He also suggested that Microsoft might be harming innovation. "We think customers large and small are right to rely on the innovation arising from the intense competition between diverse and independent security companies. Companies like McAfee have none of the conflicts of interest deriving from ownership of the operating system. We focus purely on security."

Samenuk added that "We will support the new Vista operating system".

FCC Approves Alltel Acquisition of Midwest Wireless Holdings

10/2. The Federal Communications Commission (FCC) released a Memorandum Opinion and Order [51 pages in PDF] that approves Alltel's acquisition of Midwest Wireless Holdings, subject to conditions. This is nominally a license transfer proceeding. However, it is also in the nature of a merger review proceeding to which competition law principles are applied.

The FCC concluded that "Competitive harm is unlikely in most mobile telephony markets involved in the proposed transaction, primarily because of the complementary footprints of ALLTEL and Midwest Wireless. In five markets, however, the proposed transaction would result in the combination of overlapping mobile telephony coverage and services. Thus, the proposal required us to conduct a market-by-market competitive analysis examining the potential consequences of increasing both ALLTEL’s spectrum holdings and its market share in those markets. We determine that in four of those five markets likely competitive harms exceed the likely benefits of the transaction. In these areas, we impose narrowly tailored conditions that will effectively remedy the potential for these particular harms."

The MOO also addresses the application for consent to transfer control of Great Western Cellular Holdings, LLC, and the one cellular license it holds from its controlling entity, Great Western Cellular Partners, LLC, to WWC Holding Co., Inc., a wholly-owned subsidiary of ALLTEL. The MOO states that "we must determine whether the proposed acquisition of GWC Holdings by WWC, a wholly-owned subsidiary of ALLTEL, would serve the public interest, convenience and necessity. Based on the record before us, we find that Great Western, GWC Holdings, and ALLTEL have generally met that burden." The MOO imposes no conditions.

FCC Commissioner Michael Copps wrote in a separate statement [PDF] that "I approve this merger for substantially the same reasons I gave in approving in the larger and analytically comparable merger between ALLTEL and Western Wireless last year. In light of the divestitures required by the Department of Justice, I am satisfied that this merger will not reduce competition below the level we have found acceptable in earlier mergers." However, he complained about Alltel's "disappointing penetration rate of E911-enabled handsets".

This MOO is FCC 06-146 in WT Docket No. 05-339. This proceeding is titled "In the Matter of Applications of Midwest Wireless Holdings, L.L.C. and ALLTEL Communications, Inc. For Consent to Transfer Control of Licenses and Authorizations File Nos. 0002391997, et al. and Application of Great Western Cellular Partners, L.L.C. and ALLTEL Communications, Inc. For Consent to Transfer Control of License". See also, FCC release.

Supreme Court News

10/2. The Supreme Court released a long Order List [86 pages in PDF], the first of the 2006 Term.

10/2. The Supreme Court denied certiorari in Peeler v. MCI, a case regarding installation of fiber optic cable along an abandoned railroad right of way in which Peeler claimed an interest as an owner of an adjacent parcel. MCI prevailed below. This lets stand the opinion [PDF] of the U.S. Court of Appeals (7thCir). See also, story titled "7th Circuit Rules in Case Regarding Installation of Fiber Optic Cable in RR ROW" in TLJ Daily E-Mail Alert No. 1,369, May 12, 2006. This case is Sallie Peeler v. MCI, Inc. and MCI WorldCom Network Services, Inc., Sup. Ct. No. 06-181, a petition for writ of certiorari to the 7th Circuit. The Court of Appeals case is App. Ct. No. 01-3019. It heard an appeal from the U.S. District Court for the Southern District of Indiana, Indianapolis Division, D.C. No. IP 01-983-C-Y/G, Judge Richard Young presiding. See, Order List [86 pages in PDF, at page 46.]

10/2. The Supreme Court denied certiorari in Systems Division v. Teknek Electronics, a patent infringement case. This is Sup. Ct. No. 05-1489, a petition for writ of certiorari to the U.S. Court of Appeals (FedCir). See, Supreme Court docket and Order List [86 pages in PDF, at page 10].

10/2. The Supreme Court denied certiorari in Prevenslik v. USPTO, a pro se patent related case. This is Sup. Ct. No. 06-6006, a petition for writ of certiorari to the U.S. Court of Appeals (4thCir). See, Supreme Court docket and Order List [86 pages in PDF, at page 71].

10/2. The Supreme Court granted a motion for leave to file a petition for writ of certiorari under seal. The Supreme Court docket discloses that this is a petition for writ of certiorari to the U.S. Court of Appeals (2ndCir), but little else, including the identity of the parties, or the nature of the case. This is Sup. Ct. No. 06M24. See, Order List [86 pages in PDF, at page 4.]

Status of Intellectual Property Bills

10/2. The House and Senate adjourned without last minute enactment of any of several major pending intellectual property related bills.

There are two bills that have been approved by both the House and the Senate that await the President's signature: HR 1036, the "Copyright Royalty Judges Program Technical Corrections Act", and HR 683, the "Trademark Dilution Revision Act of 2006". The House approved these bills, as amended by the Senate, early last week.

For a summary of the trademark dilution bill, see story titled "Senate Approves Trademark Dilution Revision Act" in TLJ Daily E-Mail Alert No. 1,327, March 10, 2006. This bill is a reaction to the Supreme Court's March 4, 2003 opinion [21 pages in PDF] in Moseley v. V Secret. See, story titled "Supreme Court Rules in Trademark Dilution Case" in TLJ Daily E-Mail Alert No. 618, March 6, 2003.

However, neither the House Judiciary Committee (HJC), nor the Senate Judiciary Committee (SJC), have yet approved any version of the Perform, SIRA, orphan works, or patent reform bills. Moreover, none of these proposals was inserted into any of the conference reports approved by the House and Senate just before adjournment for the November 7, 2006 elections.

The House approved HR 5418, a bill regarding specialized patent judges, by voice vote, on Thursday, September 28. This untitled bill would establish a limited ten year pilot program in a least five U.S. District Courts to develop expertise in judges and court staff in patent and plant variety cases. See also, items titled "HJC Approves Bill Regarding Specialized Patent Judges" and "HR 5418 As Approved by House Judiciary Committee" in TLJ Daily E-Mail Alert No. 1,449, September 14, 2006.

The Senate version is S 3923. It was introduced on September 21, 2006. It has not yet been approved by the SJC.

Another bill, that has been approved by the HJC, but not brought to the House floor for consideration, or included in another bill brought to the floor, is HR 2955, the "Intellectual Property Jurisdiction Clarification Act of 2005". The HJC approved this bill on March 2, 2006, and reported it on April 4, 2006. See, Report No. 109-407. See also, story titled "House Judiciary Committee Approves Amendment Regarding Jurisdiction of Federal Circuit" in TLJ Daily E-Mail Alert No. 1,325, March 8, 2006.

People and Appointments

10/2. William Moschella was named Principal Associate Deputy Attorney General at the Department of Justice (DOJ), effective immediately. He replaces William Mercer, who was nominated last month to be Associate Attorney General. Moschella was Assistant Attorney General in charge of the Office of Legislative Affairs. He was active in securing Congressional approval of the USA PATRIOT Improvement and Reauthorization Act of 2005. He was previously a long time Capitol Hill staffer. He was Counsel to the House Government Reform Committee, General Counsel to the House Rules Committee, Chief Investigative Counsel to the House Judiciary Committee (HJC), and Chief Legislative Counsel and Parliamentarian to the HJC. See, DOJ release.

10/2. Franck Journoud was hired by the Business Software Alliance (BSA) to be its Manager of Information Security Policy. He was previously Manager of Government and Industry Affairs for RSA, The Security Division of EMC. See, BSA release.

10/2. The National Telecommunications and Information Administration (NTIA) announced the members of the NTIA's Performance Review Board. They are Frederick Wentland (Associate Administrator for Spectrum Management), Bernadette Rivera (Associate Administrator for Telecommunication and Information Applications), Alan Vincent (Associate Administrator for Telecommunication Sciences and Director of the Institute for Telecommunication Sciences), Michael Crison (National Oceanic and Atmospheric Administration), and Daniel Hurley (Communications and Information Infrastructure Assurance Program). See, notice in the Federal Register, October 2, 2006, Vol. 71, No. 190, at Pages 57928-57929.

10/2. The Office of the U.S. Trade Representative (OUSTR) announced the members of its Performance Review Board. They are: Fred Ames (Assistant USTR for Administration), Florie Liser (Assistant USTR for Africa) David Walters (Assistant USTR for Economic Affairs and Chief Economist), and Lorraine Green (Deputy Assistant USTR for Administration and Director of Human Resources). See, notice in the Federal Register, October 2, 2006, Vol. 71, No. 190, at Page 58018.

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