TLJ News from August 6-10, 2011

FCC to Consider AT&T T-Mobile Merger and AT&T Purchase of Qualcomm Spectrum in Coordinated Manner

8/10. Rick Kaplan, Chief of the Federal Communications Commission's (FCC) Wireless Telecommunications Bureau (WTB) sent a letter to AT&T Mobility Spectrum LLC and Qualcomm Inc. regarding AT&T's purchase of spectrum licenses from Qualcomm.

On December 20, 2010, the two companies announced that AT&T would purchase spectrum licenses from Qualcomm for $1,925 Million. AT&T stated in a release that the spectrum is in the lower 700 MHz band, and "will bolster AT&T's ability to provide an advanced 4G mobile broadband".

AT&T added that "The spectrum covers more than 300 million people total nationwide: 12 MHz of Lower 700 MHz D and E block spectrum covers more than 70 million people in five of the top 15 U.S. metropolitan areas -- New York, Boston, Philadelphia, Los Angeles and San Francisco; 6 MHz of Lower 700 MHz D block spectrum covers more than 230 million people across the rest of the U.S."

The purchase of Qualcomm spectrum requires FCC approval of the license transfers. Kaplan's letter discloses that the FCC will not act on the request for some time, and that it will consider this request along with the AT&T T-Mobile USA merger, which also entails license transfers.

Kaplan wrote that these Qualcomm transfers and AT&T's proposed acquisition of T-Mobile USA "raise a number of related issues, including, but not limited to, questions regarding AT&T's aggregation of spectrum throughout the nation, particularly in overlapping areas".

"As a result, we have concluded that the best way to determine whether either or both of the proposed transactions serve the public interest is to consider them in a coordinated manner at this time, without prejudice to independent treatment at a later date." Kaplan added in a footnote to this statement that the FCC "is not at this time taking the further step of formally consolidating the two transactions."

Viacom and Cablevision Settle Streaming to iPad Lawsuit

8/10. Cablevision and Viacom announced in a release that they have settled the lawsuit brought by Viacom in June regarding Cablevision's streaming of television programs to Apple iPads. The release discloses little.

Viacom, which owns entertainment content, has a distribution agreement with Cablevision, which provides cable television and broadband service.

Viacom filed a complaint [44 pages in PDF] in the U.S. District Court (SDNY) against Cablevision on June 23, 2011, alleging breach of contract and other claims in connection with Cablevision's making cable channels owned by Viacom available on iPads to its cable subscribers without Viacom's authorization.

The complaint alleges breach of contract for unauthorized distribution, breach of contract for materially degrading the quality of programming, breach of contract for unauthorized use of trademarks, copyright infringement (17 U.S.C. § 501), trademark infringement (15 U.S.C. § 1114), false designation of origin (15 U.S.C. § 1125), and common law unfair competition,

The release states only that the two companies "have agreed to resolve their pending litigation, and the Viacom programming will continue to appear on Cablevision's Optimum Apps for iPad and other IP devices. In reaching the settlement agreement, Cablevision and Viacom were able to resolve the iPad matter and an unrelated business matter to their mutual satisfaction. Neither side is conceding its original legal position or will have further comment."

The complaint states that on April 2, 2011, Cablevision launched a computer application for Apple's iPad tablet computer that can "stream linear feeds of Viacom's copyrighted entertainment programming through a cable modem to iPad tablets in violation of Viacom's contractual rights that limit Cablevision's rights to distribute Viacom's programming to cable television systems, as well as Viacom's intellectual property rights and other rights."

It asserts that "Viacom brings this action for damages and to enjoin Cablevision's unlicensed broadband distribution of Viacom's programming. Viacom is committed to meeting consumer demand for broadband delivery of its programming. To this end, Viacom has reached reasonable agreements with several emerging and established media distributors so that they can stream Viacom's content and also provide an outstanding user experience. Viacom has made clear that it is willing to discuss extension of similar rights to others -- including Cablevision. What Viacom cannot do, however, is permit one of its contracting partners, Cablevision, to unilaterally change the terms of its contractual relationship."

This case is Viacom International, Inc., MTV Networks, Comedy Partners, BET Holdings LLC and Country Music Television, Inc. v. Cablevision Systems Corporation and CSC Holdings LLC, U.S. District Court for the Southern District of New York, D.C. No. 11-civ-4265.

Federal Circuit Corrects and Upholds Spam Method Patent

8/10. The U.S. Court of Appeals (FedCir) issued its opinion [14 pages in PDF] in CBT Flint Partners v. Return Path, a patent infringement case involving technology for sending spam e-mail.

CBT Flint Partners LLC is the holder of U.S. Patent No. 6,587,550 titled "Method and Apparatus for Enabling a Fee to be Charged to a Party Initiating an Electronic Mail Communication When the Party is not on an Authorization List Associated with the Party to the Communication is Directed".

Basically, it is a method that enables spammers to pay off ISPs that forward, rather than block, their spam e-mail.

The invention disclosed in this patent is software that resides on ISP's servers that determines whether the sender of spam e-mail is someone who has agreed to pay a fee in return for allowing its spam e-mail to be forwarded over the ISP's network, and if so, forwarded to the receiving victims.

CBT filed a complaint in the U.S. District Court (NDGa) against Return Path Inc. and Cisco Ironport Systems LLC alleging patent infringement.

The District Court concluded that there was a drafting error in the claim at issue, and that there were three possible corrections. It declined to correct the patent. The District Court granted summary judgment of invalidity, holding it indefinite under 35 U.S.C. § 112.

The Court of Appeals reversed the judgment of invalidity. It held that the claim is not indefinite because "there is an obvious and correctable error in the claim, the construction of which is not subject to reasonable debate".

The Court held that "in a patent infringement suit, a district court may correct an obvious error in a patent claim", and that the standard is "the point of view of one skilled in the art".

This case is CBT Flint Partners LLC v. Return Path, Inc., et al., U.S. Court of Appeals for the Federal Circuit, App. Ct. Nos. 2010-1202 and 2010-1203, appeals from the U.S. District Court for the Northern District of Georgia, D.C. No. 07-CV-1822, Judge Thomas Thrash presiding. Judge Lourie wrote the opinion of the Court of Appeals, in which Judges Bryson and Linn joined.

WSJ Discloses Nature of FTC Investigation of Google

8/10. The Wall Street Journal (WSJ) published a story on August 10, 2011, titled "FTC Sharpens Google Probe" by Thomas Catan and Amir Efrati.

Google disclosed on June 24, 2011, that it is being investigated by the Federal Trade Commission (FTC). However, it did not elaborate on the nature of the investigation, or release copies of any FTC documents. See, story titled "FTC Investigates Google" in TLJ Daily -Mail Alert No. 2,252, June 30, 2011.

The WSJ story states that the FTC and states "have been asking whether Google prevents smartphone manufacturers that use its Android operating system from using competitors' services".

The FTC and states have also asked "whether Google grants preferential placement on its website to its own products, such as Google's ``Places´´ business listings, its ``Shopping results´´ and Google Finance services above most other results".

The FTC and states have also asked whether "Google unfairly takes information collected by rivals, such as reviews of local businesses, to use on its own specialized site and then demotes the rivals' services in its search results", the WSJ article states.

Genachowski Addresses NG911

8/10. Federal Communications Commission (FCC) Chairman Julius Genachowski gave a speech in Philadelphia, Pennsylvania, to the Association of Public Safety Communications Officials (APCO) about Next Generation 911 (NG911).

The FCC issued a Notice of Inquiry (NOI) last December. Genachowski said the the FCC will consider an Notice of Proposed Rulemaking (NPRM) in September.

Julius Genachowski"Our 9-1-1 call centers still can't handle texts or pictures or video being sent by the phones that everyone has", said Genachowski (at left). "But with new technology, we can do better. And we must do better to meet our collective mission and serve the public."

He said that the forthcoming NG911 will enable "consumers to use whatever communications devices they have with them", and to communicate in more media, including "photos, video, and data".

But, "Getting NG9-1-1 up and running is going to take a lot of work on the part of a lot of people. It will require 9-1-1 authorities and service providers to work in parallel and take coordinated actions. Without a comprehensive and coordinated strategy, we'll see a patchwork deployment of NG9-1-1 over the next 5 to 10 years, with much of the United States still without any NG9-1-1 capability at the end of that period."

See also, Genachowski's November 23, 2010, speech [PDF] titled "Next-Generation 9-1-1", and story titled "Genachowski Says December Agenda to Include Next Generation 911 Item" in TLJ Daily E-Mail Alert No. 2,164, November 24, 2011.

The FCC adopted a NG911 Notice of Inquiry (NOI) [36 pages in PDF] on December 21, 2010. It is FCC 10-200 in PS Docket No. 10-255.

Genachowski announced in this speech that "Next month, the Commission will consider a Notice of Proposed Rulemaking to accelerate NG9-1-1 adoption."

He also said that "Last month, the FCC also strengthened our existing Enhanced 9-1-1 location accuracy rules, by requiring all wireless carriers to meet more stringent metrics. As you know, more and more 9-1-1 calls are mobile today -- about 50% -- but the location information you receive for mobile is not nearly as good as what you receive for a landline 9-1-1 call."

See, item [77 pages in PDF] titled "Notice of Proposed Rulemaking, Third Report and Order, and Second Further Notice of Proposed Rulemaking". It is FCC 11-107 in PS Docket No. 07-114 and WC Docket No. 05-196. See also, story titled "FCC Adopts Wireless Location Surveillance Order and NPRM" in TLJ Daily E-Mail Alert No. 2,262, July 18, 2011.

The NG911 NOI adopted last December also pertains to location detection. That is, if the FCC were to expand 911 communications capability requirements to more devices and services, this would entail mandating location detection for these devices and services.

Genachowski said in his speech in Philadelphia that "we need to develop location accuracy mechanisms for NG9-1-1".

Similarly, the FCC's December 2010 NOI asked "How can stationary, nomadic, and mobile end systems in wireline and non-cellular wireless networks (including Wi-Fi) reliably discover their location information to ensure call routing and dispatch? What, if any, obligations need to be imposed on Internet service providers, residential and enterprise equipment vendors, and other parties to ensure that location information can be discovered, conveyed, and validated?" (Parentheses in original.)

Genachowski spoke in Philadelphia about improving 911 communications. When he speaks about location accuracy, he speaks about improving 911 communications.

He does not address the other policy objections of these proceedings, such as ensuring that law enforcement and intelligence agencies are able to discover and track the location of persons under surveillance, and enabling private sector location based services and marketing in these new devices and services.

The Chairman also said that "we need to complete the implementation of NG9-1-1 technical standards that define the system architecture -- the hardware and software that carriers and PSAPs will use to communicate NG9-1-1 information seamlessly".

In addition, "we need to develop a NG9-1-1 governance framework", and a way to fund NG911.

He mentioned the problem that some states impose 911 taxes, and then spend 911 revenues on other programs. See, story titled "FCC Reports that States Divert 911/E911 Fees to Subsidize other Programs" in TLJ Daily E-Mail Alert No. 2,126, August 19, 2010.

He also addressed the debate in the Congress regarding creating a nationwide interoperable broadband network for public safety, voluntary incentive auctions.

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8/10. Jonathan Oliveras pled guilty in the U.S. District Court (EDVa) to wire fraud and aggravated identity theft. The Department of Justice (DOJ) stated in a release the "Oliveras admitted to managing a scheme to purchase stolen credit card account information through the Internet from individuals believed to be in Russia. Oliveras also admitted to distributing the purchased information to individuals in the New York, New Jersey and Washington, D.C., metropolitan areas so that it could be used to make fraudulent purchases." In addition, "Oliveras admitted to illegally possessing information from 2,341 stolen credit card accounts as well as equipment to put that information onto counterfeit credit cards."

8/10. The Federal Trade Commission (FTC) published a notice in the Federal Register (FR) that lists grants of requests for early termination of the waiting period under the Hart Scott Rodino (HSR) Act and premerger notification rules for the month of July, 2011. See, FR, Vol. 76, No. 154, Wednesday, August 10, 2011, at Pages 49481-49483.

Data Retention, Web Browsing and Securities Fraud Cases

8/9. HR 1981 [LOC | WW], the data retention bill passed by the House Judiciary Committee (HJC) on July 27-28, 2011, if enacted into law, would result in the retention of data by internet access service providers, and other companies.

Previous TLJ articles have stated that HR 1981 is not clear regarding what entities are covered, or what data must be retained. See, stories titled "House Judiciary Committee Approves Data Retention Bill", "Amendment by Amendment Summary of the Mark Up of HR 1981, the Data Retention Bill", "Roll Call Votes on Data Retention Bill" and related stories in TLJ Daily E-Mail Alert No. 2,278, August 3, 2011.

In addition, neither the Department of Justice (DOJ), which seeks this bill, nor Rep. Lamar Smith ((R-TX), who pushed this bill through the HJC, have been forthcoming regarding why they want this bill, or for what purposes retained data would be used.

This article identifies one of many likely uses of retained data -- to identify persons with the requisite scienter for securities fraud. This article discusses a case initiated this week that rests in part on internet search data.

Leslie Harris, head of the Center for Democracy and Technology (CDT), wrote an opinion piece published by ABC News on August 8, 2011, titled "The Just in Case You Are A Criminal Someday Act".  She argues that web browsing data would be collected and used if HR 1981 were enacted.

Harris wrote, "Imagine a world in which your Internet service provider stores information that would make it trivial for every website you visit, every blog you read and each purchase you make online to be made available to the cops … just in case you commit a crime someday. This is no casual reference to the ``Big Brother is Watching You´´ dystopian world of George Orwell's ``1984;´´ it is the reality of H.R. 1981, a bill in Congress that orders Internet companies to build vast digital warehouses that record and store information that links your online activities to your name and address."

On August 11, the Securities and Exchange Commission (SEC) filed a securities fraud action that discloses that the collections of data, including web browsing activity, retained pursuant to HR 1981 may be used to investigate and prove securities law violations.

The SEC filed a civil complaint [17 pages in PDF] in the U.S. District Court (CDCal) against Toby Scammell alleging 10b5 securities fraud in connection with his trading based upon insider information.

The complaint does not allege that he was an insider, or even held employment with any business that possessed inside information regarding the trades that he made.

It alleges in detail his trades. He purchased short term options to buy stock, also known as call options, in Marvel Entertainment, Inc. His timing was fortunate. The Walt Disney Company soon after announced plans to acquire Marvel, and Scammel made lots of money from his call options.

The complaint states that he had a girlfriend who worked for Disney and that she knew of the acquisition in advance. But, the complaint does not allege that she told him. It does speculate that he may have learned about Marvel "through overhearing" one of her conversations.

Purchasing call options is not illegal. It is only illegal if also combined with the requisite scienter.

The SEC complaint discloses that the SEC relies upon Scammel's internet searches to prove what he knew, and when he knew it.

It alleges that "Scammell acted with scienter". It states that before the acquisition was publicly announced, and before he purchased the call options, "Scammell began searching the internet regarding call options", and "Scammell researched the law regarding insider trading prior to making most of his Marvel trades".

The complaint also alleges that "On or about August 16, 2009, before Scammell purchased the majority of the Marvel options, Scammell searched the internet for the terms ``insider trading´´, ``tender offer´´, ``Williams Act´´, ``Rule 10b-5´´ and ``material, non-public information´´ and read several articles on Wikipedia regarding those topics."

The complaint does not state whether the SEC obtained this data from a search provider, from an internet access service provider, from Scammell's computer, or from some other repository of retained data.

Nevertheless, this case demonstrates a use of retained data in SEC actions for insider trading. It also suggests that if HR 1981 were enacted into law, retained data would become a feature of investigations in which the SEC seeks to discover targets' knowledge or mental state.

Retained data would likely be used by the SEC in other types of fraud cases in which the SEC must prove what the defendant knew but did not disclose, or that the defendant knew that statements made were false. In addition, the DOJ, which brings criminal securities fraud actions, would also find parallel uses for retained data.

The SEC, DOJ and state securities agencies might also use retained data to enhance their ability to identify suspects. For example, there is a potential for profiting from insider trading if a stock rises in value as a result of a transaction, such as Disney's acquisition of Marvel, of which insiders have advance knowledge. The government can build data sets of the traders who profited from trades around the time of the disclosure of the transaction. But, this does not demonstrate knowledge of inside information. It can also build data sets of persons who had insider information, by asking the companies and their legal and financial advisors. But, this does not prove that they assisted anyone in making trades based upon inside information. However, the government could use data collected as a result of enactment of HR 1981 to build data sets of web searches and web sites visited by these traders and insiders to identity Scammel like web activity. The government could also use retained "telephone connection records", which are covered by HR 1981, and other retained data to identify lines of communication between these traders and insiders.

By using these collections of data, government investigators may be better able to identify, by automated processes, possible cases of securities trading based upon inside information. Moreover, such data may enable the government to identify some suspected decisions not to make trades that would have been made but for use of inside information.

Also, laws firms that bring private 10b5 lawsuits would find retained data useful. One might expect that class action securities law firms would routinely seek court subpoenas or discovery orders directing service providers to turn over data on the directors and officers at the companies that they target.

The above referenced case is SEC v. Toby G. Scammell, U.S. District Court for the Central District of California, D.C. CV11-6597-DSF (MRWx).

FCC Issues Foreign Ownership NPRM

8/9. The Federal Communications Commission (FCC) adopted and released a Notice of Proposed Rulemaking (NPRM) [60 pages in PDF] regarding its review process for foreign ownership of wireless companies.

Much of what the FCC does is regulating, or attempting to influence, ownership. This includes ownership of FCC licenses, broadcasters, phone companies, cable companies, newspapers, and other entities. The FCC delves into the nationality and other attributes of owners, cross ownership, and transfers of ownership, among other things. Much of this is unnecessary.

FCC Chairman Julius Genachowski wrote in his statement that this NPRM proposes "to eliminate unnecessary reporting obligations on U.S. wireless companies that have some foreign shareholders".

47 U.S.C. § 310 limits foreign ownership. Subsection 310(b) provides as follows:

This NPRM addresses FCC implementation of the mandate in Subsection 310(b)(4). This NPRM states that "We seek to reduce to the extent possible the regulatory costs and burdens imposed on wireless common carrier and aeronautical applicants, licensees, and spectrum lessees; provide greater transparency and more predictability with respect to the Commission’s filing requirements and review process; and facilitate investment from new sources of capital, while continuing to protect important interests related to national security, law enforcement, foreign policy, and trade policy." (Footnotes omitted.) This NPRM does not address foreign ownership of broadcast licenses.

FCC Commissioner Robert McDowell wrote in his statement that "Foreign investment continues to be an important source of equity financing for U.S. telecommunications companies, and ultimately fosters technical innovation, economic growth and job creation within America’s own borders. Yet, in most instances, wireless licensees face significant regulatory hurdles in obtaining approval of foreign ownership under Section 310(b)(4) of the Act. These include considerable time commitments and an investment of significant expenses, to name just two."

He added that "Regulatory barriers such as these inhibit investment in U.S. companies and our economic resilience is what suffers most as a result."

In contrast, FCC Commissioner Michael Copps wrote in his statement that "Anecdotal evidence suggests to me that the regulatory burdens associated with our foreign ownership reviews have hardly discouraged foreign investment in the United States telecom market". He added that "we need to be vigilant that nothing we do in any of these proceedings ham-strings us from conducting the depth and breadth of analysis necessary to ensure that the intent of Congress in section 310 is met."

Ruth Milkman was until recently Chief of the FCC's Wireless Telecommunications Bureau. Genachowski assigned her the title "Special Counsel for Innovation in Government". She wrote a short piece in which she asserted that the FCC is improving its regulatory processes, with this NPRM, and other actions.

This NPRM is FCC 11-121 in IB Docket No. 11-133. Initial comments will be due within 45 days of publication of a notice in the Federal Register. Reply comments will be due within 75 days. As of the August 9, 2011, issue of the Federal Register, this notice had not yet been published.

FCC Issues Wireless Backhaul Order and FNPRM

8/9. The Federal Communications Commission (FCC) adopted and released an item [89 pages in PDF] titled "Report and Order, Further Notice of Proposed Rulemaking, and Memorandum Opinion and Order" that pertains to wireless backhaul.

FCC Chairman Julius Genachowski wrote in his statement that "Backhaul is the skeleton supporting broadband, and wireless backhaul is often a very efficient means of transmitting data among cell sites, or between cell sites and network backbones. Spectrum, in other words, can be an important part of the ``middle mile´´ of broadband networks."

He added that this item eliminates "unnecessary restrictions on the use of this spectrum", and the FNPRM "explores additional ideas for making microwave communications more flexible and cost-effective".

FCC Commissioner Robert McDowell elaborated in his statement that "we are removing regulatory barriers that unnecessarily hamper the ability to enter the marketplace for wireless backhaul and other point-to-point and point-to-multipoint communications. We are also making additional spectrum available for this purpose, as well as seeking comment on allowing wider channels and smaller antennas in certain bands."

This NPRM is FCC 11-120 in WT Docket No. 10-153. Initial comments are due by October 4, 2011. Reply comments are due by October 25, 2011.

People and Appointments

8/9. The Copyright Alliance (CA) announced the formation of a legal advisory board, comprised of the law firms of Loeb & Loeb, Jenner & Block, Mitchell Silberberg & Knupp, Munger Tolles & Olson, Covington & Burling, Crowell & Moring, Skadden Arps, Proskauer Rose, Kendall Brill & Klieger, Arnold & Porter, Drinker Biddle & Reath, Shearman & Sterling, Cravath Swaine & Moore, and Cowan DeBaets. The CA stated in a release that this board "will work with the Alliance and its membership to advance copyright strategy, and develop a variety of projects and programs, including providing assistance to individual artists and creators; hosting educational events and webinars; expanding work with law schools and young lawyers, and contributing writing and research."

8/9. Christopher Ornelas was promoted to Chief Operating Officer of the National Association of Broadcasters (NAB). See, NAB release. Ornelas previously worked for former Sen. Gordon Smith (R-OR), who is now head of the NAB, as chief counsel on communications and technology policy. Before that, he worked in the Washington DC office of the law firm of Wilkinson Barker Knauer.

8/9. Joy Whitlow was promoted to Chief Financial Officer and Executive Vice President, NAB Finance at the National Association of Broadcasters (NAB). See, NAB release. Whitlow, a CPA, joined the NAB in 2009.

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8/9. The U.S. Court of Appeals (9thCir) issued an order and amended opinion [PDF] in Dish Network v. FCC. The order denies the Dish Network's petition for rehearing en banc. The Court of Appeals affirmed the District Court, which denied the Dish Network's motion for a preliminary injunction of Section 207 of the Satellite Television Extension and Localism Act of 2010 (STELA), which is codified at 47 U.S.C. § 338, on the basis that it is a Constitutionally impermissible content based regulation its First Amendment free speech rights. The amended opinion removes a statement in the original opinion that "Section 207 is content-neutral". This case is Dish Network Corporation and Dish Network LLC v. FCC, et al., U.S. Court of Appeals for the 9th Circuit, App. Ct. No. 10-16666, an appeal from the U.S. District Court for the District of Nevada, Judge James Mahan presiding. Judge Richard Tallman wrote the opinion of the Court of Appeals, in which Judges Clifford Wallace and Barry Silverman joined.

8/9. The Department of Justice's (DOJ) Antitrust Division published a notice in the Federal Register (FR) that announces that the ODVA,Inc. filed a notification of a change in its membership, pursuant to the National Cooperative Research and Production Act of 1993, which pertains to limiting antitrust liability of standard setting consortia. See, FR, Vol. 76, No. 153, Tuesday, August 9, 2011, at Page 48884.

8/9. The Department of Justice's (DOJ) Antitrust Division published a notice in the Federal Register (FR) that announces that the Institute of Electrical and Electronics Engineers (IEEE) filed a notification of additions or changes to its standards development activities, pursuant to the National Cooperative Research and Production Act of 1993, which pertains to limiting antitrust liability of standard setting consortia. See, FR, Vol. 76, No. 153, Tuesday, August 9, 2011, at Page 48884.

8/9. The Department of Justice's (DOJ) Antitrust Division published a notice in the Federal Register (FR) that announces that the PXI Systems Alliance filed a notification of a change in its membership, pursuant to the National Cooperative Research and Production Act of 1993, which pertains to limiting antitrust liability of standard setting consortia. See, FR, Vol. 76, No. 153, Tuesday, August 9, 2011, at Page 48884.

8/9. The U.S. Patent and Trademark Office (USPTO) published a notice in the Federal Register (FR) that requests comments regarding the paperwork burden of its use of Public Key Infrastructure (PKI) technology to support electronic commerce between the USPTO and its customers. See, FR, Vol. 76, No. 153, Tuesday, August 9, 2011, at Pages 48807-48808. The deadline to submit comments is October 11, 2011.

8/9. The Executive Office of the President's (EOP) Office of Management and Budget (OMB) published a notice in the Federal Register (FR) that requests comments regarding efforts to eliminate counterfeit products from the U.S. government supply chain. See, FR, Vol. 76, No. 153, Tuesday, August 9, 2011, at Pages 48905-48907. The deadline to submit comments is 5:00 PM on Friday, September 16, 2011.

Cary Sherman Named Head of the RIAA

8/8. Cary Sherman was named Chairman and CEO of the Recording Industry Association of America (RIAA) effective September 1, 2011. See, RIAA release.

He replaces Mitch Bainwol, who left the RIAA to become CEO of the Alliance of Automobile Manufacturers.

Sherman joined the RIAA as General Counsel in 1997. He has been President since 2001. Before that worked for the law firm of Arnold & Porter.

James Assey, EVP of the National Cable and Telecommunications Association (NCTA), stated in a release that "We've enjoyed a long and productive relationship with Cary. He has a strong and collaborative leadership style and has been a great partner with us in working on a variety of public policy issues. Cary's guidance and expertise have been key in helping improve the environment for recording industry companies in recent years."

In addition, Mitch Glazier was named President of the RIAA. He has been head government relations for the RIAA for eleven years.

Before that he Chief Counsel for the House Judiciary Committee's (HJC) Subcommittee on Courts and Intellectual Property from 1995 through 2000, when former Rep. Henry Hyde (R-IL) was Chairman of the HJC.

The RIAA stated in its release that Glazier "will continue to lead the RIAA's activities on Capitol Hill and assume broader responsibilities as well".

OMB's Lew Outlines Role of Federal CIOs

8/8. Jacob Lew, Director of the Executive Office of the President's (EOP) Office of Management and Budget (OMB) issued a memorandum [PDF] to the head of executive departments and agencies regarding "Chief Information Officer Authorities".

Jacob LewLew (at left) wrote that the role of department and agency chief information officers (CIOs) is being changed "away from just policymaking and infrastructure maintenance, to encompass true portfolio management for all IT". He states that this memorandum "is designed to clarify the primary area of responsibility for Agency CIOs".

This memorandum states that "CIOs, or senior agency officials reporting to the CIO, shall have the authority and primary responsibility to implement an agency-wide information security program and to provide information security for both the information collected and maintained by the agency, or on behalf of the agency, and for the information systems that support the operations, assets, and mission of the agency."

It also states that "CIOs must drive the investment review process for IT investments and have responsibility over the entire IT portfolio for an Agency. CIOs must work with Chief Financial Officers and Chief Acquisition Officers to ensure IT portfolio analysis is an integral part of the yearly budget process for an agency."

It also states that "Agency CIOs shall improve the overall management of large Federal IT projects by identifying, recruiting, and hiring top IT program management talent. CIOs will also train and provide annual performance reviews for those leading major IT programs.

It also states that "Agency CIOs must focus on eliminating duplication and rationalize their agency's IT investments.

Finally, it states that "CIOs are required to playa cross-agency portfolio management role through the Federal CIO Council (CIOC)."

People and Appointments

8/8. The Federal Communications Commission (FCC) announced the membership of its Communications Security, Reliability, and Interoperability Council (CSRIC). Glen Post, CEO of CenturyLink, is the CSRIC Chairman. See, FCC release.

8/8. Albert Foer, head of the American Antitrust Institute (AAI), wrote an opinion piece titled "Antitrust Continuity in a Recession" in which he urged President Obama to promptly appoint a replacement for Christine Varney, who was the Assistant Attorney General (AAG) in charge of the Department of Justice's (DOJ) Antitrust Division until earlier this month. He wrote that "The job should be filled soon on a permanent basis and not be left to an acting head until the next Administration takes office." He also wrote that "Some question whether aggressive enforcement of the antitrust laws is a good idea when the economy is currently so troubled. In fact, when an economy is not doing well, this is the time that vigorous antitrust enforcement is most needed." Sharis Pozen is the acting AAG. See, story titled "Sharis Pozen Named Acting Head of Antitrust Division" in TLJ Daily E-Mail Alert No. 2,281, August 6, 2011, and story titled "Varney to Leave Antitrust Division" in TLJ Daily E-Mail Alert No. 2,255, July 11, 2011

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8/8. The Securities and Exchange Commission (SEC) released a short report of the event in Beijing, People's Republic of China, on July 11-12, 2011, titled "Sino-U.S. Symposium on Audit Oversight". This report states that "the officials briefed each other on their respective audit oversight system and inspection procedures. They also exchanged views on how to deepen cooperation on cross-border audit oversight."

8/8. The Government Accountability Office (GAO) released a report [63 pages in PDF] titled "Information Security: State Has Taken Steps to Implement a Continuous Monitoring Application, but Key Challenges Remain".

Go to News from August 1-5, 2011.