TLJ News from November 26-30, 2007

3rd Circuit Rules in DBS Signal Theft Case

11/30. The U.S. Court of Appeals (3rdCir) issued its opinion [5 pages in PDF] in Directv v. Seijas, a case regarding whether there is a private right of action for the unlawful interception of encrypted satellite transmissions under 47 U.S.C. § 605(a) and 18 U.S.C. § 2511(1)(a). The District Court and Court of Appeals held that there is.

Background. Directv is a direct broadcast satellite (DBS) service provider. It uses conditional access technology that encrypts its satellite transmissions; it then provides its paying customers with access cards that decrypt these satellite transmissions.

Directv alleges that the defendants below Nelson Seijas, Scott Williamson, and others, illegally intercepted Directv's satellite signals and used illegal pirate access devices.

Directv filed a complaint in the U.S. District Court (DNJ) against Seijas, Williamson and others alleging interception of DIRECTV’s satellite transmissions in violation of 47 U.S.C. § 605(a) and 18 U.S.C. § 2511(1)(a), and possession of pirate access devices in violation of 18 U.S.C. § 2512(1)(b).

Statutes. 47 U.S.C. § 605(a) provides, in part, that "no person receiving, assisting in receiving, transmitting, or assisting in transmitting, any interstate or foreign communication by wire or radio shall divulge or publish the existence, contents, substance, purport, effect, or meaning thereof, except through authorized channels of transmission or reception, ..." Subsection (e)(3) then provides that "Any person aggrieved by any violation of subsection (a) of this section ... may bring a civil action in a United States district court or in any other court of competent jurisdiction."

18 U.S.C. § 2511(1)(a) pertains to "Interception and disclosure of wire, oral, or electronic communications prohibited". It creates a civil remedy for interception of certain communications, including satellite piracy. It provides, in part, that "any person who ... intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication ... shall be punished as provided in subsection (4) or shall be subject to suit as provided in subsection (5)."

18 U.S.C. § 2512(1)(b) provides that "any person who intentionally ... manufactures, assembles, possesses, or sells any electronic, mechanical, or other device, knowing or having reason to know that the design of such device renders it primarily useful for the purpose of the surreptitious interception of wire, oral, or electronic communications ... shall be fined under this title or imprisoned not more than five years, or both."

In addition, 18 U.S.C. § 2520 pertains to "Recovery of civil damages authorized". Subsection (a) provides that "... any person whose wire, oral, or electronic communication is intercepted, disclosed, or intentionally used in violation of this chapter may in a civil action recover from the person or entity, other than the United States, which engaged in that violation such relief as may be appropriate."

Subsection (c)(2) provides that "the court may assess as damages whichever is the greater of -- (A) the sum of the actual damages suffered by the plaintiff and any profits made by the violator as a result of the violation; or (B) statutory damages of whichever is the greater of $100 a day for each day of violation or $10,000."

§§ 2511, 2512, and 2520 are part of the Electronic Communications Privacy Act (ECPA) of 1986.

Court of Appeals. Williamson brought the present appeal of the District Court's grant of summary judgment against him on the counts alleging violation of §§ 605 and 2511. (The District Court also awarded Directv statutory damages, attorneys fees, and injunctive relief.)

The Court of Appeals affirmed.

It wrote that "We held in DIRECTV, Inc. v. Pepe, 431 F.3d 162 (3d Cir. 2005), that private parties may bring an action for damages and injunctive relief for a violation of Section 2511".

It added that "We now hold that the Federal Communications Act, 47 U.S.C. § 605, provides a private right of action for violations of the statute’s prohibition of piracy of airborne transmissions."

This case is Directv, Inc. v. Nelson Seijas, et al., U.S. Court of Appeals for the 3rd Circuit, App. Ct. No. No. 05-1682, an appeal from the U.S. District Court for the District of New Jersey, D.C. No. 03-cv-02429, Judge Stanley Chesler presiding. Judge Roth wrote the opinion of the Court of Appeals, in which Judges Ambro and Jordan joined.

Related Stories: "11th Circuit Holds Award of Liquidated Damages for Violation of ECPA is Discretionary" in TLJ Daily E-Mail Alert No. 908, June 1, 2004; "4th Circuit Rules DBS Providers Can Sue Pirates for Damages" in TLJ Daily E-Mail Alert No. 1,117, April 18, 2005; and "11th Circuit Limits Private Suits by DBS Providers Against Pirates" in TLJ Daily E-Mail Alert No. 922, June 21, 2004.

People and Appointments

11/30. Motorola's Board of Directors elected Greg Brown as CEO, effective January 1, 2008. He is currently P/COO. He will replace Edward Zander, who will remain as Chairman of the Board of Directors until the annual meeting of stockholders in May 2008. See, Motorola release.

More News

11/30. The Federal Trade Commission's (FTC) Bureau of Consumer Protection's Division of Privacy and Identity Protection released a document [49 pages in PDF] titled "Staff Summary of Comments and Information Received Regarding the Private Sector's Use of Social Security Numbers". See also, FTC release. The FTC will host a workshop on December 10-11, 2007, titled "Security in Numbers: SSNs and ID Theft". See, workshop web site.

11/30. The Copyright Royalty Judges published a notice in the Federal Register setting the copyright royalty rates and terms under the Copyright Act for the noncommercial educational broadcasting statutory license for the license period 2008-2012. See, Federal Register, November 30, 2007, Vol. 72, No. 230, at Pages 67646-67652.

US and PRC Reach Agreement Regarding PRC Trade Subsidies

11/29. The Office of the U.S. Trade Representative (USTR) announced, but did not release, a Memorandum of Understanding (MOU) between the U.S. and the People's Republic of China (PRC) regarding subsidies that the U.S. alleges violate the PRC's World Trade Organization (WTO) obligations.

The OUSTR stated in a release that this MOU "is designed to settle a WTO case the United States and Mexico initiated in February of this year. The United States had alleged that China was maintaining several subsidy programs prohibited under WTO rules and that these programs were providing significant benefits across the spectrum of industrial sectors in China -- including steel, wood products, information technology, and many others."

See, stories titled "US Files Complaint with WTO Regarding PRC Export Subsidies" in TLJ Daily E-Mail Alert No. 1,533, February 6, 2007, and "USTR Requests WTO Dispute Settlement Panel on PR China Subsidies" in TLJ Daily E-Mail Alert No. 1,610, July 17, 2007.

The OUSTR continued that "Most of the challenged subsidies were tied to exports, giving an unfair competitive advantage to Chinese products and denying U.S. manufacturers the chance to compete fairly with them in the United States and in third country markets. The remaining subsidies, known as ``import substitution´´ subsidies, encouraged companies in China to purchase Chinese-made goods instead of imports. These subsidies were designed to give Chinese-made goods a significant edge in the China market over high-quality, fairly priced goods from the United States and other countries."

See also, statement [PDF] by USTR Susan Schwab.

Sen. Charles Grassley (R-IA) stated in a release that "This is welcome news. We don't litigate needlessly. When we initiate a WTO case, we have a legitimate basis for complaint. In this case, the Chinese government maintained eight subsidy programs that distorted competition in violation of international trade rules. I’m glad the Chinese government recognized that and agreed to permanently terminate the subsidies by January 1."

Sen. Grassley added that "We have three more cases against China pending at the WTO. There's a lot of room for improvement in the protection of intellectual property rights in China."

With respect to the WTO intellectual property case, see story titled "US Requests WTO Dispute Settlement Panel Re PRC Failure to Protect IPR" in TLJ Daily E-Mail Alert No. 1,623, August 15, 2007.

FCC Approves Transfer of Clear Channel TV Licenses

11/29. The Federal Communications Commission (FCC) released a Memorandum Opinion and Order (MO&O) in which it approved the sale by Clear Channel of its 35 television stations to Newport Television. The FCC approved the transfer of FCC licenses associated with this transaction.

This MO&O states that "Newport, which has been formed for the purposes of the proposed transaction, is wholly owned by investment funds that are commonly controlled affiliates of Providence Equity Partners, Inc."

Providence states in its web site that it is a private equity firm that focuses on media, entertainment, communications and information investments.

FCC Commissioner Michael Copps wrote in a separate statement [PDF] that this is not media deconsolidation. Rather, it is a transfer from "one media giant to another".

Michael CoppsCommissioner Copps (at right) wrote that "After this transaction closes and all divestitures have occurred, Providence Equity Partners will have attributable interests in a whopping 86 television stations and 99 radio stations in the United States, as well as interests in media companies around the world such as MGM studios (largest shareholder), Yes Network, Hallmark Channel, and Warner Music Group. You will search this Order in vain, however, for any mention of the scope of Providence’s holdings or how they potentially affect our public interest analysis." (Parentheses in original.)

He also suggested that the FCC investigate private equity investments in communications.

People and Appointments

11/29. Former Rep. Henry Hyde (R-IL) died. He was Chairman of the House Judiciary Committee (HJC) for six years following the 1994 elections. He presided over the passage of HR 2281 (105th Congress), the "Digital Millennium Copyright Act", which he also cosponsored. See also, statement by President Bush.

11/29. James Finnegan joined Comcast as VP, Intellectual Property Strategy. Comcast stated in a release that "Finnegan is responsible for the continuing development and execution of Comcast’s Intellectual Property strategy. ... Prior to joining Comcast, Finnegan spent 17 years at AT&T and Lucent as a leading contributor to their intellectual property business. Most recently he served as Vice President, Intellectual Property, for Qimonda AG in Munich, Germany. He has also served in various consulting roles to major communications and electronics firms."

11/29. Peter Bresnan, the Securities and Exchange Commission's (SEC) Deputy Director of Enforcement, will leave the SEC on December 5, 2007. He will join the Washington DC office of the law firm of Simpson Thacher & Bartlett. He was the SEC's lead counsel in its case against WorldCom. See, SEC release and STB release.

More News

11/29. Alan Holmer, the Department of the Treasury's Special Envoy for China and the Strategic Economic Dialogue (SED), gave a speech in Atlanta, Georgia, on trade relations between the United States and the People's Republic of China.

2nd Circuit Judges Decline Recusal in Copyright Litigation

11/28. The U.S. Court of Appeals (2ndCir) issued its opinion [PDF] in In Re: Literary Works in Electronic Databases Copyright Litigation, holding the members the three judge panel need not recuse themselves.

This opinion pertains to long running class action litigation over the rights of free lance authors with respect to republication of their works in electronic databases, such as those of LexisNexis and Westlaw. The Supreme Court held in its June 25, 2001 opinion in New York Times v. Tasini, which is reported at 533 U.S. 483, that freelanced articles in newspapers, for which the author still owns the copyright, cannot be republished in electronic databases without permission from the author. The Supreme Court held that the defendant publishers did not have a privilege under 17 U.S.C. § 201(c) to include in electronic databases the freelance articles written for and licensed to print publications.

See also, story titled "Supreme Court Rules for Authors in NYT v. Tasini" in TLJ Daily E-Mail Alert No. 216, June 26, 2001. And see, story titled "Supreme Court Grants Cert in NYT v. Tasini", Tech Law Journal, November 7, 2000.

The present appeal concerns the settlement of consolidated class actions brought on behalf of freelance authors. The District Court approved the settlement on September 27, 2005. Several members of the plaintiff class objected to the settlement and brought the present appeal.

Two members of the three judge panel (Ralph Winter and John Walker) learned in March of 2007 that they are members of the plaintiff class (although they filed no claims, and the deadline for doing so has passed) as a result of having authored articles for law reviews and speeches.

Moreover, they sought an opinion from the Committee on Codes of Conduct of the Judicial Conference of the United States. The Committee issued an opinion, which is attached to the Court of Appeals' opinion, advising the two Judges to recuse themselves.

In the just released opinion, the two judges who hold copyrights concluded that they need not recuse themselves. The third member of the panel did not participate in this opinion.

The two judges wrote that "We decide today that a judge who learns that he is a party to a class action lawsuit by virtue of his possession of a small financial interest in one of the parties parties or in the subject matter of the lawsuit, and who has devoted substantial time to consideration of that case, but who promptly divests himself of the otherwise disqualifying financial interest, need not recuse himself from continued participation in the disposition of that case."

8th Circuit Affirms Preliminary Injunction of SpeedNet's Sale to Clearwire

11/28. The U.S. Court of Appeals (8thCir) issued its opinion [11 pages in PDF] in PCTV Gold v. SpeedNet, affirming the order of the District Court granting Sprint Nextel a preliminary injunction.

Sprint holds a Broadband Radio Service (BRS) license from the Federal Communications Commission (FCC) in the Saginaw, Michigan, area. PCTV Gold, Inc., is a subsidiary of Sprint. Clearwire Spectrum Holdings II, LLC is a competitor of Sprint.

SpeedNet, a wireless internet services provider, entered into a contract, titled "Market Operation Agreement" or MOA, with Sprint to lease licensed spectrum in Saginaw for a term of five years, with three five year options to renew. The contract includes a right of first offer (ROFO) clause.

SpeedNet and Clearwire later executed, without notice to Sprint, a Purchase Agreement under which Clearwire acquired SpeedNet's assets, including the spectrum lease contract.

Sprint's subsidiary filed a complaint in U.S. District Court (WDMO) against SpeedNet alleging breach of contract, and seeking injunctive relief and specific performance of the contract. It seeks to enforce its option to purchase SpeedNet.

The District Court issued an order granting a preliminary injunction that enjoins SpeedNet from "closing upon, transferring assets in furtherance of, or completing any portion of the transaction envisioned in the Purchase Agreement between SpeedNet and Clearwire".

SpeedNet brought the present interlocutory appeal. The Court of Appeals affirmed.

The Court of Appeals applied standard preliminary injunction principles -- likelihood of success on the merits, irreparable harm, balancing of harms, and public interest.

It concluded that Sprint had demonstrated a reasonable likelihood of success on the merits of its contract claim. It further found that Sprint might suffer irreparable harm, not compensable by monetary damages, if the transaction is not enjoined, because Clearwire might change the structure of the business.

With respect to the public interest analysis, the Court of Appeals wrote that the District Court "did not abuse its discretion by concluding its grant of a preliminary injunction promoted the public interest by protecting freedom to contract through enforcement of contractual rights and obligations".

This case is PCTV Gold, Inc. v. SpeedNet, LLC, U.S. Court of Appeals for the 8th Circuit, App. Ct. No. 07-2189, an appeal from the U.S. District Court for the Weastern District of Missouri, Judge Dean Whipple presiding. Judge Bye wrote the opinion of the Court of Appeals, in which Judges Benton and Shepherd joined.

More Court Opinions

11/28. The U.S. Court of Appeals (4thCir) issued its opinion [11 pages in PDF] in Waytec Electronics v. Rohm and Haas Electronic Materials, a contract dispute involving the manufacture of printed circuit boards. The Court of Appeals affirmed the judgment of the District Court for Rohm and Haas. This case is Waytec Electronics Corporation v. Rohm and Haas Electronic Materials, LLC, et al., App. Ct. No. No. 06-2242, an appeal from the U.S. District Court for the Western District of Virginia, at Lynchburg, D.C. No. 6:05-cv-00024-sgw.

11/28. The U.S. Court of Appeals (7thCir) issued another opinion in JCW Investments v. Novelty, a copyright and trademark case. The Court of Appeals addressed substantive issues in an earlier opinion. That opinion is reported at 482 F.3d 910. See also, "More News" section in TLJ Daily E-Mail Alert No. 1,555, March 21, 2007. The just released opinion addresses recovery of appellate attorney fees and costs. 17 U.S.C. § 505 and 15 U.S.C. § 1117(a) both permit an award of full costs and reasonable attorneys fees to the prevailing party, including fees and costs incurred on appeal. The Court of Appeals awarded JCW appellate attorneys fees of $70,423.75. This case is JCW Investments, Inc. v. Novelty, Inc., U.S. Court of Appeals for the 7th Circuit, App. Ct. No. 05-2498, an appeal from the U.S. District Court for the Northern District of Illinois, Eastern Division, D.C. No. 02 C 4950, Judge Robert Gettleman presiding.

People and Appointments

11/28. President Bush named Marie Sciarrone to be Special Assistant to the President for Homeland Security and Senior Director for Cybersecurity and Information Sharing Policy. See, White House release.

11/28. President Bush named Terri Moore to be Deputy Assistant to the President and Deputy Director of Communications for Policy and Planning. See, White House release.

11/28. President Bush named Luke Frans to be Special Assistant to the President and Deputy Director of Political Affairs. See, White House release.

Verizon Wireless to Open its Network to Others' Devices, Software and Apps

11/27. Verizon Wireless (VW) announced in a release that "it will provide customers the option to use, on its nationwide wireless network, wireless devices, software and applications not offered by the company ... by the end of 2008".

The release adds that early next year VW "will publish the technical standards the development community will need to design products to interface with the Verizon Wireless network. Any device that meets the minimum technical standard will be activated on the network."

See, full story.

FCC Commissioners Withhold Support for Martin's 70/70 Conclusion

11/27. The Federal Communications Commission (FCC) adopted, but did not release, a 13th annual report to the Congress on the status of competition in the market for delivery of video programming.

The FCC adopted its Twelfth Annual Report [161 pages in PDF] on February 10, 2006, and released on March 3, 2006. Hence, this 13th Report is late. See also, story titled "FCC Describes Annual Report on Video Competition" in TLJ Daily E-Mail Alert No. 1,308, February 13, 2006.

Also, the FCC has yet to release this 13th report. It has only issued a release [5 pages in PDF] that describes it. The five Commissioners each wrote statements.

The FCC's release states that the report addresses the 70/70 test, which Chairman Martin had sought to employ as the basis for imposing new regulations upon cable companies. Three of the five Commissioners (McDowell, Tate, and Adelstein) blocked Martin's initiative.

See, full story.

FCC Adopts R&O and FNPRM Regarding Commercial Leased Access

11/27. The Federal Communications Commission (FCC) adopted, but did not release, a Report and Order (R&O) and Further Notice of Proposed Rulemaking (FNPRM) in its proceeding titled "Leased Commercial Access; Development of Competition and Diversity in Video Programming Distribution and Carriage".

Cable operators provide video programming to their subscribers. Cable operators pay for programming. However, with leased access programmers pay cable operators to lease access to cable channels. The 1984 Act requires this, and the FCC regulates this leased access, including prices.

This item lowers rates for leased access, and imposes further requirements upon cable operators. The Commission split 3-2, with Martin, Copps and Adelstein forming the majority, and Tate and McDowell dissenting.

The FCC issued a short release that pertains to this item. This release asserts several benefits of the R&O, but provides little description of the contents of the R&O.

FCC Chairman Kevin Martin wrote in his statement [PDF] that this R&O "significantly reforms the Commission's leased access rules". He elaborated that it provides for an "expedited complaint process and a more rationale method for determining leased access rates".

FCC Commissioner Michael Copps wrote in his statement that "The express statutory purpose of leased access is to give independent programmers an opportunity to obtain cable carriage at reasonable rates in order to promote competition" and diversity of sources.

Unfortunately, wrote Copps, "those purposes have rarely been realized. In our most recent annual cable price survey, the Commission found that cable systems on average carry only 0.7 leased access channels. This Order tries to remove several obstacles that may be hindering the use of leased access capacity, including clarifying the information that cable operators must be prepared to provide in response to inquiries, and the time in which it must be provided."

FCC Commissioner Jonathan Adelstein elaborated on the content of the R&O in his statement [PDF]. "We first adopt uniform customer service standards to remedy the lack of a consistent and fair treatment of actual and interested leased access programmers. We then reduce the potential expense and burden on a programmer associated with filing a complaint with the Commission about an alleged violation. To ensure that we better monitor leased access practices and the effects of our rules, we adopt an annual reporting requirement for cable operators and we invite leased access programmers to comment on the information provided by cable operators."

Adelstein continued that this R&O provides that when leased access programmers request information from cable operators about rates, terms and conditions, the cable operator must provide certain specified information within three days.

With respect to the R&O's new rate methodology, Adelstein wrote that "I actually like the outcome", notwithstanding that it was "invented by staff out of whole cloth without sufficient public input, independent review or any transparency."

Commissioner Deborah Tate dissented. She wrote in her statement [PDF] that "we should ask that interested parties analyze the advantages and disadvantages of this new rate formula. We should also seek input on whether lowering the maximum allowable rate will increase the number of leased access programmers on cable’s systems. Because we fail to seek comment on these important changes, I respectfully dissent."

Commissioner Robert McDowell dissented too. He argued in his statement that a primary reason that leased access has not been more successful is that it may not be economically viable for the vast majority of programmers. That is, normally cable operators pay programmers for content. But with leased access, the programmers pay the cable operators. There is no business model, unless the programmer derives income from other sources, such as infomercial sales.

Robert McDowellMcDowell (at left) added that "the majority concludes that the new rate methodology will not apply to programmers that predominantly transmit sales presentations, or program-length commercials, and seeks additional public comment on related issues. This too is extremely problematic. I cannot fathom how distinguishing programmers based on the content they deliver can be constitutional."

McDowell also predicted that the result of these new rules "will be a loss in the diversity of programming as cable operators are forced to drop lesser-rated channels in favor of a flood of leased access requests seeking distribution distorted below cost and market rates."

This item is FCC 07-208 in MB Docket No. 07-42.

FCC Adopts NPRM Regarding Extending Do Not Call Registrations

11/27. The Federal Communications Commission (FCC) adopted, but did not release, a Notice of Proposed Rulemaking (NPRM) seeking comment regarding extension of the current five year registration period for the Do Not Call Registry.

The FCC issued a short release [PDF] that states that the FCC "proposes making registrations permanent".

The Congress enacted the Do-Not-Call Implementation Act in 2003 to implement a Do Not Call Registry. It is Public Law No. 108-10. It is codified at 15 U.S.C. § 6101 note. Section 3 requires the FCC to adopt certain rules. The 2003 Act is silent on the subject of automatic expiration. However, the FCC wrote a five year expiration into its rules.

There is also legislation pending to preclude expiration of do not call registrations. On October 30, 2007, the House Commerce Committee (HCC) amended and approved HR 3541 [LOC | WW], the "Do-Not-Call Improvement Act of 2007". On the same day, the Senate Commerce Committee (SCC) amended and approved S 2096 [LOC | WW], the "Do-Not-Call Improvement Act of 2007".

See also, stories titled "House Commerce Committee Approves Bill to Preclude Expiration of Do Not Call Registrations" and "Senate Commerce Committee Approves Bill to Preclude Expiration of Do Not Call Registrations" in TLJ Daily E-Mail Alert No. 1,666, October 31, 2007. And see, story titled "Sen. Dorgan Introduces Bill to Prevent Automatic Expiration of Do Not Call Registrations" in TLJ Daily E-Mail Alert No. 1,648, October 1, 2007.

This NPRM is FCC 07-__ in CG Docket No. 02-278.

FCC Adopts New Rules Regarding Disclosure Requirement of TV Broadcasters

11/27. The Federal Communications Commission (FCC) adopted, but did not release, a Report and Order (R&O) regarding the local programming disclosure requirements for television broadcasters.

The FCC issued a short release [PDF] that states that this item "requires television broadcasters to provide more information on the local programming they are broadcasting and facilitate the public’s access to that information."

The FCC's release also states that this R&O provides that "television broadcasters must file a standardized programming form on a quarterly basis. This form will provide the public with easily accessible information in a standardized format on each television station’s efforts to serve its community. The form requires broadcasters to list various types of programming, including local civic programming, local electoral affairs programming, public service announcements, and independently produced programming, and also includes information about efforts that have been made to ascertain the programming needs of various segments of the community, and information regarding closed captioning and video described content. This form will replace the current issues/programs list, which required broadcasters to place in their public file on a quarterly basis a list of programs that have provided the station’s most significant treatment of community issues during the preceding three-month period."

The release also states that this R&O "requires television licensees to make their public inspection file (with the exception of their political file) available online if they have Internet websites and notify their audiences twice daily about the location of the station’s public file."

This R&O is FCC 07-205 in MM Docket No. 00-168 and MM Docket No. 00-44.

More FCC News

11/27. The Federal Communications Commission (FCC) adopted, but did not release, a 3rd Report and Order (R&O) and 2nd Further Notice of Proposed Rulemaking regarding low power FM (LPFM) service. The FCC issued a release that states that this item, among other things, "Allows the transfer of LFPM licenses subject to significant limitations", and "Limits the responsibility of LPFM stations to resolve interference caused to subsequently authorized full-service stations." This R&O is FCC 07-204 in MB Docket No. 99-25.

11/27. The Federal Communications Commission (FCC) tentative agenda [4 pages in PDF] for its event on November 27, 2007, titled "Open Commission Meeting" included adoption of a Report and Order (R&O) and 3rd Further Notice of Proposed Rulemaking (NPRM) regarding "initiatives designed to increase participation in the broadcasting industry by new entrants and small businesses, including minority- and women-owned businesses". The FCC did not adopt this item at its November 27 event. See also, notice of removal from agenda. FCC Commissioner Michael Copps wrote in a statement [PDF] that "I'm pleased that we have avoided a premature vote on minority and female ownership." Commissioner Jonathan Adelstein wrote in a statement [PDF] that "I'm pleased that the Commission has backed off its fig leaf attempt to address minority and female ownership. It was an obvious effort to provide cover for more media consolidation, which would only have take media outlets further out of the reach of women and minorities. It was designed to check the box and move on. It’s high time we create an independent, bipartisan panel that will look at these issues in a comprehensive and substantive fashion. Media sharecropping is no substitute for media ownership."

More News

11/27. The U.S. Court of Appeals (10thCir) released a scheduling order [3 pages in PDF] in U.S. v. Joseph Nacchio, App. Ct. No. 07-1311. The Court of Appeals will hear oral argument in this appeal at 2:00 PM on December 18, 2007, at the Byron White Courthouse, in Denver, Colorado.

11/27. The Federal Trade Commission (FTC) released a report [108 pages in PDF] titled "Federal Trade Commission 2006 Identity Theft Survey Report". See also, FTC release. The report was prepared for the FTC by Synovate.

11/27. The Privacy and Civil Liberties Oversight Board (PCLOB) published a notice in the Federal Register stating that it is removing its Freedom of Information Act (FOIA) regulations because, pursuant to provisions of the Implementing Recommendations of the 9/11 Commission Act of 2007, Public Law No. 110-53, the PCLOB as it is currently constituted will be abolished no later than January 30, 2008, and replaced with a new independent agency.

Senate Republicans Write FCC Regarding Cable Regulation

11/26. Sen. Jim DeMint (R-SC), Sen. Kay Hutchison (R-TX), Sen. Gordon Smith (R-OR), and Sen. John Sununu (R-NH) sent a letter to Federal Communications Commission (FCC) Chairman Kevin Martin to oppose "sweeping new regulations on the cable industry that would interfere with the marketplace and potentially undermine both Congressional authority and intent".

The four Senators are members of the Senate Commerce Committee (SCC), which has jurisdiction over communications, and oversees the FCC.

They wrote that "the telecommunications and technology industries in the United States are experiencing unprecedented transformation that is fundamentally changing the way we live our lives. We can access a nearly infinite supply of information with the click of a button and can communicate instantaneously with individuals around the globe."

They continued that this "technological revolution" is changing lives, creating jobs, and driving economic growth.

They argued that "introducing new regulation into this environment, particularly on only one segment of a converging industry, could be disruptive".

They wrote that "If there is to be a fundamental shift or adoption of new regulatory policies, it is up to Congress, not the Commission, to implement it."

House Democrats Write FCC Regarding Multicast Must Carry

11/26. Rep. Anna Eshoo (D-CA), Rep. Jay Inslee (D-WA), Rep. Baron Hill (D-OH), Rep. Hilda Solis (D-CA), Rep. Frank Pallone (D-NJ), Rep. Al Wynn (D-MD), Rep. G.K Butterfield (D-NC) and five other House Democrats sent a letter to Federal Communications Commission (FCC) Chairman Kevin Martin to express their concern regarding "your ongoing support for the imposition of multicast must carry obligations on cable operators".

Reps. Eshoo, Inslee, Hill, Wynn, Pallone, Solis and Butterfield are members of the House Commerce Committee (HCC). Reps. Eshoo, Inslee, Solis, Pallone and Hill are also members of the HCC's Subcommittee on Telecommunications and the Internet (STI).

The wrote that "you have presented no evidence to support your assertion that multicast must carry would promote program diversity and increase programming choices for consumers. In fact, we think it would have the opposite effect by putting additional broadcast channels at the front of the line ahead of the many diverse programming services offered by cable."

They continued that "The government has given the broadcasters spectrum to transmit additional streams of digital programming and established a $1.5 billion digital-to-analog converter box coupon program that will allow any household with a converter box to receive over-the-air any digital multicast programming services that broadcasters choose to create. An additional mandate requiring cable carriage of the broadcasters' multicast signals is unnecessary and unwarranted."

House Commerce Committee Leaders Seek 911 Disability Rules

11/26. Rep. John Dingell (D-MI) and other leaders of the House Commerce Committee (HCC) sent a letter [PDF] to the Federal Communications Commission (FCC) urging it to "resolve ... as expeditiously as possible" its rulemaking proceedings regarding "the lack of equal access to 911 services for individuals who are deaf or hard of hearing".

They wrote that "In light of the public safety implications of these proceedings, the Commission should conclude them expeditiously. We would ask that the Commission complete CG Docket No. 03-123, FCC 05-196, before the end of the year and CG Docket No. 03-123, FCC 06-57, no later than the end of the first quarter of 2008."

The letter was signed by Rep. Dingell, the Chairman of the HCC, Rep. Joe Barton (R-TX), the ranking Republican on the HCC, Rep. Ed Markey (D-MA), the Chairman of the HCC's Subcommittee on Telecommunications and the Internet (STI), and Rep. Fred Upton (R-MI), the ranking Republican on the STI.

District Court Allows Rule 45 Subpoena for Identities of P2P Defendants

11/26. The U.S. District Court (DC) issued an opinion [5 pages in PDF] in Warner Bros. v. Does 1-6, granting the plaintiff records companies their request for a Rule 45 subpoena to obtain from Georgetown University (GU) the identities of Doe defendants, who are alleged by the plaintiffs to use GU's internet access to infringe copyrights.

Warner Bros. (WB) and the other plaintiffs are record companies whose copyrights are violated by users of peer to peer filed distribution systems. WB asserts that it knows that the Does have infringed copyrights and that the Does obtain internet access from GU, but that it does not know their identities. WB filed a complaint in the District Court for the purpose of obtaining discovery pursuant to a Rule 45 subpoena of the identities of the infringing users from GU. The District Court granted WB expedited discovery.

It wrote that "Plaintiffs may serve a Rule 45 subpoena upon Georgetown University to obtain the true identity of each Doe defendant. The subpoena must be limited to information sufficient to identify each defendant, including each defendant’s true name, current and permanent addresses and telephone numbers, email address, and Media Access Control (``MAC´´) address. Any information disclosed to plaintiffs in response to the Rule 45 subpoena may be used by plaintiffs solely for the purpose of protecting plaintiffs' rights as set forth in the complaint."

The District Court further ordered that GU give prior written notice to the Doe defendants, and an opportunity to file a motion to quash a subpoena, before providing responsive information.

GU is a federally funded university. The District Court further held that this discovery is consistent with the Family Educational Rights and Privacy Act (FERPA).

This case is Warner Bros. Records, Inc., et al. v. Does 1-6, U.S. District Court for the District of Columbia, D.C. No. 07-1878 (EGS), Judge Emmet Sullivan presiding.

More News

11/26. The Supreme Court denied certiorari in M2 Software v. Viacom, a trademark case. This lets stand the judgment of the U.S. Court of Appeals (9th Circuit). See, February 28, 2007, unpublished opinion [8 pages in PDF] of the Court of Appeals. This case is M2 Software, Inc. v. Viacom Inc., et al., Sup. Ct. No. 07-202, a petition for writ of certiorari to the U.S. Court of Appeals for the 9th Circuit. The Court of Appeals case number is 04-56794. The Court of Appeals heard an appeal from the U.S. District Court (CDCal), D.C. No. CV-98-08734-AHM. See, Orders List [15 pages in PDF] at page 2, and Supreme Court docket.

People and Appointments

11/26. Sen. Trent Lott (R-MS) announced that he will not run for re-election to the Senate in 2008. He is a member of the Senate Commerce Committee (SCC). See, Sen. Lott's statement.

11/26. Rep. Julia Carson (D-IN) announced that she will not run for re-election to the House in 2008.

Go to News from November 21-25, 2007.