|TLJ News from March 16-20, 2007|
People and Appointments
3/20. President Bush named Brent McIntosh to be Deputy Assistant to the President and Deputy Staff Secretary. He was previously Associate Counsel to the President. Before that, he was a Deputy Assistant Attorney General in the Department of Justice's (DOJ) Office of Legal Policy (OLP). See, White House release.
3/20. President Bush named Julie Cram to be Deputy Assistant to the President and Director of Public Liaison. She previously worked for TerreStar Networks Inc. See, White House release.
3/20. President Bush named Dan Meyer to be Deputy Assistant to the President for Legislative Affairs. He previously worked at The Duberstein Group. See, White House release.
3/20. President Bush named David Boyer to be Special Assistant to the President for Legislative Affairs. He was previously Assistant Commissioner for Legislation in the Office of the Commissioner at the Food and Drug Administration. See, White House release.
3/20. President Bush named Daniel Kaniewski to be Special Assistant to the President for Homeland Security and Senior Director for Response Policy. He was previously Director, Response and Recovery Policy on the Homeland Security Council staff at the White House. See, White House release.
3/20. President Bush named Matt Latimer to be Special Assistant to the President for Speechwriting. He was previously Chief Speechwriter for the Secretary of Defense. See, White House release.
3/20. President Bush named Stacie Maass to be Special Assistant to the President for Domestic Policy. She was previously Executive Director of the Medicaid Commission at the Department of Health and Human Services. See, White House release.
3/20. The Securities and Exchange Commission (SEC) filed a civil complaint [PDF] in U.S. District Court (EDPenn) against Cyberkey Solutions, Inc. and James E. Plant alleging Section 10b fraud and other violations of federal securities laws in connection with their issuance of stock while also falsely claiming to have a $25 Million purchase order from the Department of Homeland Security (DHS) for USB flash memory products. The SEC stated in a release that there is also a parallel criminal prosecution.
Supreme Court Seeks Solicitor General Brief on Patent Settlements with Reverse Payments
3/19. The Supreme Court of the United States (SCUS) issued an order in Joblove v. Barr Labs stating that "The Solicitor General is invited to file a brief in this case expressing the views of the United States." This case involves antitrust treatment of patent settlements involving reverse payments. See, Order List [16 pages in PDF] at page 2, and SCUS docket.
In previous litigation, Zeneca, Inc.and AstraZeneca Pharmaceuticals LP, holders of the patent for the drug tamoxifen citrate, entered into an agreement with generic manufacturer Barr Laboratories, settling patent infringement litigation. The settlement agreement included a reverse payment of $21 Million from the patent holders (Zeneca and AstraZeneca) to the generic manufacturer (Barr Labs) and to Barr Labs allowing Barr Labs to sell an unbranded version of Zeneca manufactured tamoxifen.
In the present litigation, consumers of the drug, third party payor organizations that provide medical benefits for their members which are used to purchase the drug, and consumer advocacy groups filed a complaint in U.S. District Court (EDNY) against Barr Labs, Zeneca and AstraZeneca alleging that the terms of the settlement violate federal and state antitrust laws. The District Court dismissed the complaint.
The U.S. Court of Appeals (2ndCir) issued its divided opinion [PDF] on August 10, 2006, affirming the judgment of the District Court.
See also, petition for writ of certiorari [PDF] and petitioners' reply brief [PDF].
The SCUS did not invite the Federal Trade Commission (FTC) to file a brief in this case. The SCUS relies upon the DOJ, not independent commissions with expertise and experience, to represent the views of the US. The FTC and DOJ would not likely offer the same analysis.
The DOJ filed an amicus curiae brief in 2006 with the SCUS opposing grant of certiorari in a similar case, FTC v. Schering-Plough Corporation. The SCUS then denied certiorari in that case.
Meanwhile, the FTC filed an amicus curiae brief [15 pages in PDF] with the Court of Appeals in 2005 in Joblove v. Barr Labs supporting the position of the plaintiffs.
See also, September 29, 2006, speech [12 pages in PDF] by FTC Commissioner Jon Liebowitz titled "How Settlements Make Strange Bedfellows: Or How the Federal Trade Commission has Managed to Unite the Entire Pharmaceutical Industry (but only in Opposition to the FTC’s Position on Exclusion Payment Settlements)".
This case is Joblove, et al. v. Barr Labs, Inc., et al., Sup. Ct. No. 06-830, a petition for writ of certiorari to the U.S. Court of Appeals for the 2nd Circuit, App. Ct. No. 03-7641. The Court of Appeals heard an appeal from the U.S. District Court for the Eastern District of New York, Judge Leo Glasser presiding. Judge Sack wrote the opinion of the Court of Appeals, in which Judge Raggi joined. Judge Pooler wrote a dissenting opinion. This case is also known as In Re: Tamoxifen Citrate Antitrust Litigation.
Supreme Court Denies Certiorari in Verity v. FTC
3/19. The Supreme Court of the United States (SCUS) denied certiorari in Verity v. FTC, a case involving application of the Federal Trade Commission Act's (FTCA) prohibition of unfair and deceptive trade practices to telephone billing charges for telephone pornography not authorized by phone customers. See, Order List [16 pages in PDF] at page 3 and SCUS docket.
The petitioners had argued in their petition for writ of certiorari that their operation fell within the FTCA's common carrier exemption, that the filed rate doctrine barred the Federal Trade Commission's (FTC) claim, and that this matter should have been referred to the Federal Communications Commission (FCC) under the doctrine of primary jurisdiction.
See also, the Solicitor General's brief in opposition to the petition for writ of certiorari.
This lets stand the March 29, 2006, opinion [50 pages in PDF] of the U.S. Court of Appeals (2ndCir).
The defendants operated a porn web site that fraudulently billed users for telephone calls to Madagascar that did not take place. The FTC filed a complaint in U.S. District Court (SDNY) alleging violation of 15 U.S.C. § 45(a). The FTC prevailed in the District Court. The Court of Appeals vacated the monetary judgment, and a contempt order, but otherwise affirmed the District Court's judgment.
This case is Verity International, Ltd., et al. v. FTC, Sup. Ct. No. 06-669, a petition for writ of certiorari to the U.S. Court of Appeals for the 2nd Circuit, App. Ct. No. 04-5487-cv. The Court of Appeals heard an appeal from the U.S. District Court for the Southern District of New York, Judge Lewis Kaplan presiding. Judge John Walker wrote the opinion of the Court of Appeals, in which Judges Feinberg and Straub joined.
Michael Copps Announces Staff Changes
3/19. Jessica Rosenworcel (at right) will become Senior Legal Counsel to the Senate Commerce Committee. She was previously Senior Legal Advisor to Federal Communications Commission (FCC) Commissioner Michael Copps for media issues. See, FCC release.
Bruce Gottlieb (at left), Copps' advisor on spectrum and international issues, will be the primary point of contact for media issues. He joined Copps' office in March of 2006. See, story titled "Copps Announces Staff Changes" in TLJ Daily E-Mail Alert No. 1,332, March 20, 2006.
Scott Deutchman (at right) remains Copps' advisor on competition and universal service issues.
John Branscome will work on spectrum and international issues for Copps, on detail from the FCC's Wireless Telecommunications Bureau (WTB), where he is Chief of the Spectrum and Competition Policy Division.
More People and Appointments
3/19. President Bush nominated Stephen Murphy to be a Judge of the U.S. Court of Appeals for the Sixth Circuit. See, White House release. He is the U.S. Attorney for the Eastern District of Michigan.
3/19. President Bush nominated Raymond Kethledge to be a Judge of the U.S. Court of Appeals for the Sixth Circuit. See, White House release. He is an attorney with the law firm of Bush Seyferth Kethledge & Paige. He previously clerked for Supreme Court Justice Anthony Kennedy. He also worked for former Sen. Spencer Abraham (R-MI) when he was a member of the Senate Judiciary Committee (SJC).
3/19. President Bush nominated Richard Jones to be a Judge of the U.S. District Court for the Western District of Washington. See, White House release. He is a Superior Court Judge in King County, Washington.
3/19. President Bush nominated Sharion Aycock to be a Judge of the U.S. District Court for the Northern District of Mississippi. See, White House release.
3/19. President Bush nominated David Dugas to be a Judge of the U.S. District Court for the Middle District of Louisiana. See, White House release.
3/19. President Bush nominated James Randal Hall to be a Judge of the U.S. District Court for the Southern District of Georgia. See, White House release.
3/19. President Bush nominated Richard Honaker to be a Judge of the U.S. District Court for the District of Wyoming. See, White House release.
3/19. President Bush nominated Robert James Jonker to be a Judge of the U.S. District Court for the Western District of Michigan, See, White House release.
3/19. President Bush nominated Paul Lewis Maloney to be a Judge of the U.S. District Court for the Western District of Michigan, See, White House release.
3/19. President Bush nominated Janet Neff to be a Judge of the U.S. District Court for the Western District of Michigan, See, White House release.
3/19. President Bush nominated Janis Lynn Sammartino to be a Judge of the U.S. District Court for the Southern District of California. See, White House release.
3/19. The Supreme Court of the United States (SCUS) issued an order in Credit Suisse v. Billing, Sup. Ct. No. 05-1157. The SCUS wrote that "Having been advised by Justice Kennedy that he now realizes that he should have recused himself from participation in this case, and does now recuse himself, the Court vacates its order of Thursday, December 7, 2006. The Court has reconsidered the petition for certiorari, and the petition is granted. The Chief Justice and Justice Kennedy have not participated in the vote to withdraw the order of December 7, 2006, or in the instant reconsideration of the petition for certiorari." See, Order List [16 pages in PDF] at page 2 and SCUS docket. See also, story titled "Supreme Court Grants Certiorari in Antitrust Cases" in TLJ Daily E-Mail Alert No. 1,501, December 8, 2006.
3/19. A Magistrate Judge of the U.S. District Court (DC) issued a Report and Recommendation [5 pages in PDF] in Intervet, Inc. v. Merial Limited, an action in which Intervet seeks a declaratory judgment of non-infringement of a vaccine patent. The U.S. District Court (NDGa) previously dismissed a patent infringement action brought by Merial, on the grounds that two universities retained such substantial rights in the patent at issue that Merial did not have standing to sue solely in its own name. In the present action, Intervet also named the two universities as defendants. However, the universities argued that Intervet failed to satisfy the standard set by the Federal Circuit in Super Sack v. Chase Packaging, 57 F.3d 1054 (1995). That is, the party seeking the declaratory judgment of non-infringement must allege an explicit threat or other action by the patentee, which creates a reasonable apprehension on the part of the declaratory plaintiff that it will face an infringement suit, and present activity which could constitute infringement or concrete steps taken with the intent to conduct such activity. The Magistrate Judge concludes that "since Intervet does not quarrel with the proposition that the Universities have not threatened them with infringement, there is no case or controversy between Intervet and the Universities." The Magistrate Judge recommends dismissal for lack of subject matter jurisdiction. This case is Intervet, Inc. v. Merial Limited, Merial SAS, The Queen's University of Belfast, and University of Saskatchewan, U.S. District Court for the District of Coloumbia, D.C. No. 06-658 (JMF), Magistrate Judge John Facciola presiding.
3/19. The National Association of Broadcasters (NAB) released a paper [9 pages in PDF] titled "An Engineering Statement Prepared on Behalf of the National Association of Broadcasters Regarding the Technical Aspects of the SDARS Providers XM and Sirius". The paper states that there are "significant differences" between the Satellite Digital Audio Radio Service (SDARS) systems of XM and Sirius, and that the differences "in system operation, function, and structure make the design and implementation of a single unified and interoperable receiver both complex and expensive". It adds that "an XM receiver cannot receive the Sirius signal and vice versa. Thus, as is true today, if the proposed merger of XM and Sirius were consummated, consumers would still need to purchase a new interoperable receiver in order to receive the signals of both providers." The paper was written by Dennis Wallace of Meintel Sgrignoli & Wallace. See also, NAB release.
FCC Releases Agenda for March 22 Meeting
3/16. The Federal Communications Commission (FCC) released an agenda [6 pages in PDF] for its event on Thursday, March 22, 2006, titled "Open Meeting".
Key items on the agenda include a declaratory ruling regarding the regulatory classification of broadband over wireless as an information service, another NPRM regarding exclusive contracts in apartment buildings and real estate developments, and a NOI regarding broadband industry practices.
The agenda lists 13 items, which is far more usual. However, this agenda includes many items that are of types not usually taken up at Commission meetings, such as appeals from decisions of the USAC regarding the FCC's e-rate subsidy program for schools and libraries.
Broadband Items. The FCC will consider a declaratory ruling regarding the appropriate regulatory treatment for broadband access to the internet over wireless networks. The FCC has already determined that broadband access via DSL, cable modem, and BPL are information services.
The FCC will consider a notice of inquiry (NOI) regarding "broadband industry practices".
The FCC will also consider a notice of proposed rulemaking (NPRM) regarding "Exclusive Service Contracts for Provision of Video Services in Multiple Dwelling Units and Other Real Estate Developments".
More Media Bureau Items. The FCC will consider a Second Report and Order, First Order on Reconsideration, and Second Further Notice of Proposed Rulemaking in its proceeding titled "Digital Audio Broadcasting Systems and Their Impact on the Terrestrial Radio Broadcast Service". This is MM Docket No. 99-325.
The FCC issued its Further NPRM and NOI in this proceeding back on April 15, 2004. See, story titled "FCC Announces FNPRM and NOI Regarding Digital Audio Broadcasting" in TLJ Daily E-Mail Alert No. 878, April 16, 2004. This FNPRM/NOI is FCC 04-99. The FCC placed this item on the agenda for its July 2006 meeting, but then removed it without explanation.
The FCC will consider a Memorandum Opinion and Order (MO&O) and Notice of Apparent Liability (NAL) regarding Citadel Broadcasting Corporation's acquisition of 15 radio stations owned by a subsidiary of The Walt Disney Co.
The FCC will consider a Memorandum Opinion and Order (MO&O) evaluating approximately 200 applications to construct new or modified noncommercial entity (NCE) FM broadcast stations.
More Wireless Telecommunication Bureau Items. The FCC will consider a NPRM regarding modification of Part 101 of the FCC's rules to permit the installation of smaller antennas by Fixed Service (FS) operators in the 10.7-11.7 GHz band in response to a petition for rulemaking [14 pages in PDF] filed by FiberTower, Inc. (FTI) on May 26, 2004.
FTI wrote in its petition that "Smaller antennas will reduce the costs of providing, installing, and maintaining equipment for an 11 GHz Fixed Service link. They will allow links to be installed at locations not available to large antennas. Lower costs and new deployment options will reduce end user costs for a broad range of services, including wireless local loop and T-1 transport, broadband Internet access for schools, businesses, and apartment buildings, and interconnection of industrial campuses for LANs and PBXs. Smaller, less expensive antennas will create new competition with fiber and other modes of broadband delivery ..."
The FCC will also consider a Third Report and Order regarding the transition of private land mobile radio equipment to 6.25 kHz technology. This proceeding is WT Docket No. 99-87 and RM 9332.
E-Rate Subsidies. The FCC will consider an order granting requests by 72 schools and libraries for review of decisions by the Universal Service Administrative Company (USAC) that either reduced or denied e-rate subsidies on the grounds that the applicants violated the FCC's competitive bidding requirements by failing to have a legally binding agreement or allowing an existing contract to expire.
The FCC will consider an order granting 76 appeals of USAC decisions that either reduced or denied e-rate subsidies on the grounds that applicants failed to timely respond to the USAC's requests for information.
The FCC will also consider an order granting 29 appeals of USAC decisions that either reduced or denied e-rate subsidies on the grounds that the applications were not supported by an approved technology plan, as required by the FCC's rules.
Other Items. The FCC will consider an order to transfer control of Telecomunicaciones de Puerto Rico, Inc. from Verizon to América Móvil. This is WT Docket No. 06-113.
The FCC will consider a report regarding the competitive market conditions for domestic and international satellite communications services. This is IB Docket No. 06-67.
This event is scheduled for 9:30 AM on Thursday, March 22, 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 events at the scheduled time, or at all. The FCC usually does not release at its events copies of the items that it adopts at its events.
Martin Announces New Legal Advisors
3/16. Federal Communications Commission (FCC) Chairman Kevin Martin picked Michelle Carey to be his Legal Advisor for Media Issues.
Carey (at right) has been Martin's Legal Advisor for Wireline Issues since April 2005. Before that, she was Deputy Chief of the Wireline Competition Bureau (WCB). She replaces Heather Dixon, who remains at the FCC.
Martin picked Ian Dillner (at left) to be his Legal Advisor for Wireline Issues. He is currently a legal advisor to Commissioner Deborah Tate. Before that, he was Martin's acting wireline advisor. He has also been a legal advisor to the Chief of the WCB, and a Senior Attorney in the WCB's Competition Policy Division (CPD).
Martin picked Erika Olsen to be his Acting Wireless Advisor. She was previously Deputy Chief of the WCB's Telecommunications Access Policy Division (TAPD). Before joining the FCC, she worked for the law firm of McDermott Will & Emery.
Finally, Martin picked Nick Alexander to be his Acting Wireline Advisor during Dillner's transition. He is currently an Attorney Advisor in the WCB's CPD. Before joining the FCC he worked for the law firm of Akin Gump.
More People and Appointments
3/16. Attorney General Alberto Gonzales named Chuck Rosenberg (at right) his interim Chief of Staff. He replaces Kyle Sampson, who resigned on March 12, 2007. Rosenberg is the U.S. Attorney for the Eastern District of Virginia.
3/16. The Supreme Court of the United States (SCUS) issued an order denying the request of the Consumer Federation of America to participate in oral argument as amicus curiae in Leegin Creative Leather Products v. PSKS, Sup. Ct. No. 06-480. See, Order List [PDF]. This is an antitrust case regarding minimum resale price maintenance by manufacturers and intermediate distributors. See also, story titled "Supreme Court Grants Certiorari in Antitrust Cases" in TLJ Daily E-Mail Alert No. 1,501, December 8, 2006.
3/16. The Supreme Court of the United States (SCUS) issued an order granting the motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument in Tellabs v. Makor, Sup. Ct. No. 06-484. See also, story titled "Supreme Court Grants Certiorari in PSLRA Case Regarding Pleading of Scienter" in TLJ Daily E-Mail Alert No. 1,515, January 8, 2007.
Go to News from March 11-15, 2007.