Top Stories from 2006

FCC Concludes 700 MHz Band Licensees Are Subject to 911/E911 Rules
8/3. The Federal Communications Commission (FCC) adopted, but did not release, a Notice of Proposed Rulemaking (NPRM) regarding changes to its rules governing wireless licenses in the 698-746, 747-762, and 777-792 MHz Bands. This item also contains a tentative conclusion that wireless services licensed in this 700 MHz band, including broadband internet access services, as well as other wireless services covered by Part 27 of the FCC's rules, are subject to 911/E911 regulation.

Senate Ratifies Convention on Cybercrime
8/3. The Senate ratified by unanimous consent without amendment Treaty 108-11, which is titled "Council of Europe Convention on Cybercrime". This convention requires the nations that are parties to it to enact laws criminalizing certain activity in the nature of computer hacking, and other cyber crimes. However, the convention also requires the parties to enact numerous laws related to criminal procedure, search and seizure, electronic intercepts, and data retention, that will broadly increase governmental powers. Also, the use of these powers is not limited to investigation and prosecution in cyber crime cases.

FTC Holds That Rambus Unlawfully Monopolized Markets
8/2. The Federal Trade Commission (FTC) released its opinion [120 pages in PDF] in its administrative proceeding titled "In the Matter of Rambus, Inc.". It concludes that Rambus unlawfully monopolized the markets for four computer memory technologies that have been incorporated into industry standards for dynamic random access memory (DRAM) chips.

House Approves DOPA
7/26. The House approved HR 5319, the "Deleting Online Predators Act of 2006", a bill to require schools and libraries receiving e-rate subsidies to block access to social networking web sites and chat rooms.

7th Circuit Rules in Antitrust and Patent Case
7/26. The U.S. Court of Appeals (7thCir) issued its opinion [12 pages in PDF] in Schor v. Abbott Laboratories, an antitrust case involving a drug patent in which the Court of Appeals affirmed the judgment of the District Court, dismissing the complaint for failure to state a claim. The Court of Appeals rejected a "monopoly leveraging" claim where the defendant held a patent monopoly on a drug. In reaching this conclusion, the Court of Appeals provided not only economic analysis and judicial precedent, but also an analogy to the computer and software industries.

Web Site Operator Indicted for Supporting Terrorism
7/19. The U.S. District Court (DConn) unsealed an indictment [14 pages in PDF] that charges Syed Talha Ahsan with conspiracy to provide material support to terrorists, and providing material support to terrorists, in violation of 18 U.S.C. 2339A, and other crimes, in connection with his alleged providing of "material support and resources to persons engaged in acts of terrorism in Afghanistan, Chechnya and elsewhere ... through the creation and use of various internet websites, e-mail communications, and other means" and by providing "expert advice and assistance, communications equipment ... financial services" to recruit, raise funds, and provide assistance.

11th Circuit Addresses 230 Interactive Computer Service Immunity and Amazon Book Listing
7/18. The U.S. Court of Appeals (11thCir) issued its opinion [25 pages PDF] in Almeida v. Amazon.com, a case involving the interactive computer service immunity provision of 47 U.S.C. 230. The District Court held that Amazon is immune under  230 from Florida right of publicity and invasion of privacy claims for listing a book and picture in its web site.

9th Circuit Holds that Operation of Passive Website Is Insufficient to Create Personal Jurisdiction in Trademark Case
7/12. The U.S. Court of Appeals (9thCir) issued its opinion [16 pages in PDF] in Peable Beach v. Caddy, holding that the U.S. District Court lacks personal jurisdiction over a citizen and resident of the United Kingdom (UK) who operates a web site that a U.S. plaintiff alleges infringes and dilutes its trademark rights.

House Approves Unlawful Internet Gambling Enforcement Act
7/11. The House approved HR 4411, the "Unlawful Internet Gambling Enforcement Act of 2006" by a vote of 317-93. See, Roll Call No. 363. Republicans voted 201-17. Democrats voted 115-76.

Senate Finance Committee Approves Tax Bill with Communications and Tech Provisions
6/28. The Senate Finance Committee (SFC) amended and approved S 1321, the "Telephone Excise Tax Repeal Act of 2005". This bill repeals the federal telephone excise tax that dates back to the Spanish American War. However, the bill, as amended, also includes numerous other tax provisions, including some that affect technology and communications.

Supreme Court Grants Cert in Bell Atlantic v. Twombly
6/26. The Supreme Court granted certiorari in Bell Atlantic v. Twombly, a case involving the pleading requirements for an action under Section 1 of the Sherman Act against regional bell operating companies (RBOCs).

Senate Commerce Committee Begins Mark Up of Communications Reform Bill
6/22. The Senate Commerce Committee (SCC) began its mark up the "Communications, Consumer's Choice, and Broadband Deployment Act of 2006". See, third discussion draft [159 pages in PDF] of the bill, which was introduced as S 2686, but is now numbered HR 5252.

FCC to Tax Interconnected VOIP Service Providers
6/21. The Federal Communications Commission (FCC) adopted, but did not release, a Report and Order and Notice of Proposed Rulemaking. It provides, among other things, that the FCC will tax interconnected voice over internet protocol (VOIP) providers. This expands the entities taxed to pay for the FCC's universal service subsidy program. This item also raises taxes on wireless service provides. However, it does not address the subsidy side of the program.

DOJ Sues to Block New Jersey Investigation of Phone Companies' Transfer of Phone Call Records
6/14. The U.S. Department of Justice (DOJ) filed a civil complaint [14 pages in PDF] in U.S. District Court (DNJ) against the the Attorney General of the state of New Jersey, other New Jersey officials, and phone companies that have been subpoenaed by New Jersey. The complaint seeks declaratory judgment that the state lacks authority to issue the subpoenas. The subpoenas relate to the May 11, 2006, USA Today article titled "NSA has massive database of Americans' phone calls".

Senate Commerce Committee Holds Hearing on Communications Reform Bill
6/13. The Senate Commerce Committee (SCC) held a hearing on S 2686, the "Communications, Consumer's Choice, and Broadband Deployment Act of 2006". This is Sen. Ted Stevens' (R-AK) bill, 151 pages long in the June 9 draft, that would revise many areas of communications and technology law.

House Approves COPE Act, Without Network Neutrality Amendment
6/8. The House amended and approved HR 5252, the "Communications Opportunity, Promotion, and Enhancement Act of 2006" (COPE Act). The vote on final approval was 321-101. See, Roll Call No. 241. Republicans voted 215-8 for the bill. Democrats voted 106-92. The House rejected the Markey network neutrality amendment [PDF] by a vote of 152-269. See, Roll Call No. 239. Republicans voted 11-211. Democrats voted 140-58.

CIIP Subcommittee Approves Section 115 Reform Act
6/8. Rep. Lamar Smith (R-TX) and Rep. Howard Berman (D-CA) introduced HR 5533 [57 pages in PDF], the "Section 115 Reform Act of 2006", or SIRA. The House Judiciary Committee's (HJC) Subcommittee on Courts, the Internet, and Intellectual Property (CIIP) approved the bill, without amendment, by unanimous voice vote, on June 8. Rep. Smith, the Chairman of the CIIP Subcommittee, wrote in a statement that "Retailers and online companies should be competing with each other, not competing with piracy".

Music Licensing, Satellite Radio, and Perform Act Debated
6/2. The Progress and Freedom Foundation (PFF) hosted a panel discussion titled "The Role of Music Licensing in the Digital Age" on Capitol Hill.  The speakers were Michael Petricone (Consumer Electronics Association), Mitch Glazier (Recording Industry Association of America), Christian Castle, and Lee Knife (Digital Media Association). Patrick Ross (PFF) moderated. Much of the discussion focused on satellite broadcasting, the lawsuit brought last month by the members of the RIAA against XM Satellite Radio, and pending bills known as the Perform Act.

11th Circuit Holds that Stored Communications Act Does Not Apply to Password Protected Discussion Web Site
6/1. The U.S. Court of Appeals (11thCir) issued its opinion [17 pages in PDF] in Snow v. Directv, a civil case alleging violation of the Stored Communications Act (SCA), at 18 U.S.C. 2701, and password protected online discussion groups. The Court of Appeals affirmed the judgment of the District Court, which dismissed the complaint for failure to state a claim.

House Judiciary Committee Approves Net Neutrality Bill
5/25. The House Judiciary Committee (HJC) amended and approved HR 5417, the "Internet Freedom and Nondiscrimination Act of 2006". This is the network neutrality bill sponsored by Rep. James Sensenbrenner (R-WI), Rep. John Conyers (D-MI), Rep. Rick Boucher (D-VA), and Rep. Zoe Lofgren (D-CA).

Rep. Smith Introduces Orphan Works Act of 2006
5/22. Rep. Lamar Smith (R-TX) introduced HR 5439 [PDF], the "Orphan Works Act of 2006". This bill is based upon the Copyright Office's report [133 pages in PDF] titled "Report on Orphan Works".

BellSouth and Verizon Attack USA Today Story
5/16. BellSouth and Verizon released written statements that attack the accuracy of the May 11 article in USA Today titled "NSA has massive database of Americans' phone calls". BellSouth and Verizon both released carefully worded but vague statements that if read literally could be construed as not denying the key assertion of fact contained in the USA Today article -- that they provided phone call records to the NSA.

Supreme Court Rules on Availability of Injunctive Relief in Patent Cases
5/15. The Supreme Court issued its opinion [12 pages in PDF] in eBay v. MercExhange, vacating the judgment of the U.S. Court of Appeals (FedCir). The Court held that the traditional four factor framework that guides a court's decision whether to grant an injunction applies in patent cases.

Bush Responds to USA Today Story Regarding NSA Database of Phone Calls
5/11. President Bush spoke briefly at the White House to defend the surveillance activities of the National Security Agency (NSA). See, transcript. He said that "Today there are new claims about other ways we are tracking down al Qaeda to prevent attacks on America." He was speaking of an article published on May 11, 2006 by the USA Today, a daily newspaper, in both its paper edition, and in its web site. The USA Today article states that "The National Security Agency has been secretly collecting the phone call records of tens of millions of Americans, using data provided by AT&T, Verizon and BellSouth, people with direct knowledge of the arrangement told USA TODAY."

House Republicans Introduce Bill to Expand CIPA to Include Chat Rooms and Social Networking Sites
5/9. Rep. Michael Fitzpatrick (R-PA) and other House Republicans introduced HR 5319, the "Deleting Online Predators Act of 2006", or DOPA. This bill would censor use of the internet by expanding the requirements of the Children's Internet Protection Act (CIPA) to include chat rooms and commercial social networking web sites.

Court of Appeals Hears Oral Argument in Challenge to FCC's August 5 CALEA Order
5/5. A three judge panel of the U.S. Court of Appeals (DCCir) heard oral argument in ACE v. FCC. Judge Edwards repeatedly stated, with various blunt terms, that the argument of the Department of Justice (DOJ) and the Federal Communications Commission (FCC) that broadband service providers are subject to the requirements under the 1994 Communications Assistance for Law Enforcement Act (CALEA) is nonsense.

Section by Section Summary of Sen. Stevens' Telecom Reform Bill
5/1. The following is a section by section summary of S 2686 [135 pages in PDF], the "Communications, Consumer's Choice, and Broadband Deployment Act of 2006", introduced by Sen. Ted Stevens (R-AK) on May 1, 2006.

2nd Circuit Rules Against IRS on Excise Tax on Phone Service
4/27. The U.S. Court of Appeals (2ndCir) issued its short per curiam opinion [PDF] in Fortis v. USA, affirming the judgment of the District Court, and following the precedent of three other circuits, regarding the Internal Revenue Service's (IRS) illegal collection of excise taxes on certain telecommunications services, in violation of Sections 4251 and 4252 of the Internal Revenue Code.

Amendment by Amendment Summary of Full Committee Mark Up of COPE Act
4/26. The House Commerce Committee (HCC) amended and approved the "Communications Opportunity, Promotion, and Enhancement Act of 2006", or COPE Act. This stories summarizes and links to 33 amendments considered at the mark up.

Gonzales Proposes Data Retention Mandate, Web Site Labeling, and Ban on Deceptive Source Code
4/20. Attorney General Alberto Gonzales gave a speech in Alexandria, Virginia, in which he proposed that internet service providers (ISPs) be required to retain data. The Department of Justice (DOJ) also released a draft bill [PDF] that would require web site operators to label web sites that contain "sexually explicit material", and criminalize the deceptive use of words in the source code of certain web sites.

Bush Picks Schwab to be USTR
4/18. President Bush nominated Susan Schwab to be the United States Trade Representative. She has been a Deputy USTR since November of 2005. See, White House release and transcript of White House event.

Supreme Court Prohibits Prohibitions on Citation of Unpublished Opinions
4/14. The Supreme Court released its amendments [6 pages in PDF] to the Federal Rules of Appellate Procedure (FRAP). These changes add a new Rule 32.1, pertaining to citation of opinions designated as "unpublished".

PR China's Vice Premier Offers Minimal Assurances Regarding IPR Theft
4/11. The U.S. Trade Representative (USTR) Rob Portman, Secretary of Commerce Carlos Gutierrez, and Vice Premier Wu Yi of the People's Republic of China met in Washington DC to discuss China's failure to enforce intellectual property rights (IPR).

Amendment by Amendment Summary of Subcommittee Mark Up of COPE Act
4/5. The House Commerce Committee's (HCC) Subcommittee on Telecommunications and the Internet amended and approved HR __ [PDF], the "Communications Opportunity, Promotion, and Enhancement Act of 2006", or COPE Act. The Subcommittee approved many amendments. Many amended were offered, but rejected or withdrawn. Many of the withdrawn amendments, particularly those related to consumer protection issues, were withdrawn under commitments from the manager to work with the sponsor on appropriate language. Finally, one approved amendment may be removed at the full Committee mark up. The following is an amendment by amendment summary of the mark up.

House Subcommittee on Telecommunications and the Internet Holds Hearing on COPE Act
3/30. The House Commerce Committee's (HCC) Subcommittee on Telecommunications and the Internet held a hearing on HR __ [PDF], a committee print of a bill that may be titled the "Communications Opportunity, Promotion, and Enhancement Act of 2006", or COPE Act.

Summary of COPE Act
3/30. HR __ [PDF], the "Communications Opportunity, Promotion, and Enhancement Act of 2006" would create a national cable franchising regime. It would give the FCC authority to enforce its August 2005 policy statement [3 pages in PDF] regarding network neutrality through case by case adjudicatory proceedings. It would impose E911 requirements on voice over internet protocol (VOIP) service providers. Finally, it would prevent states from preventing state and local governments from providing telecommunications, cable, or information services.

FCC Announces that Verizon Petition for Forbearance is Deemed Granted
3/21. The Federal Communications Commission (FCC) issued a release that states that the FCC, by operation of law has granted Verizon's December 20, 2004, petition for forbearance from Title II of the Communications Act, and the FCC's Computer Inquiry rules.

FBI Loses More Computers
3/20. The Government Accountability Office (GAO) released a report [PDF] titled "Federal Bureau of Investigation: Weak Controls over Trilogy Project Led to Payment of Questionable Contractor Costs and Missing Assets". This is another is a series of studies and testimonies that report that the Department of Justice's (DOJ) Federal Bureau of Investigation (FBI) has outdated information technology (IT), that it is incapable of managing its adoption of new technology, that it is wasting taxpayers' money in its attempts, and that much equipment and any data stored therein is lost or stolen.

Senate Commerce Committee Holds Hearing on Innovation and Competitiveness
3/15. The Senate Commerce Committee (SCC) held a hearing titled "Innovation and Competitiveness Legislation". Sen. John Ensign (R-NV) presided. He introduced S 2109, the "National Innovation Act of 2005", on December 15, 2005. The bill now has 23 cosponsors. See also, S 2309, the "National Innovation Act -- Commerce Provisions".

House Financial Services Committee Approves Internet Gambling Bill
3/15. The House Financial Services Committee amended and approved, by voice votes, HR 4411, the "Unlawful Internet Gambling Enforcement Act of 2006". HR 4411 is targeted at the financial transactions that fund what already constitutes unlawful internet gambling. Rep. Jim Leach (R-IA) offered an amendment in the nature of a substitute [25 pages in PDF]. It was approved by a voice vote. The bill, as amended, was then approved by voice vote, without further amendment.

House CIIP Subcommittee Holds Hearing on Orphan Works
3/8. The House Judiciary Committee's Subcommittee on Courts, the Internet, and Intellectual Property (CIIP) held a hearing on the Copyright Office's (CO) report [133 pages in PDF] titled "Report on Orphan Works". The Subcommittee heard from one group, photographers, who label their works, and seek to license them, but who still would likely have some of their works declared orphan works under the CO's legislative proposal. The Subcommittee also heard from the CO and users of orphan works, who support the CO proposal.

7th Circuit Applies Computer Hacking Statute to Use of Trace Removers on Employee Laptops
3/8. The U.S. Court of Appeals (7thCir) issued its opinion [7 pages in PDF] in International Airport Centers v. Citrin, a post-employment dispute that also involves application of the Computer Fraud and Abuse Act to employees' use of trace remover tools on the laptops assigned to them by their employers. The opinion states that an employee of a company who is provided a laptop computer by that company, and who uses a trace remover tool on that laptop, might be sued civilly, or prosecuted criminally, for that act, even if there is no employment contract or company policy that prohibits the use of trace remover programs.

Supreme Court Vacates in Patent Tying Antitrust Case
3/1. The Supreme Court issued its opinion [20 pages in PDF] in Illinois Tool Works v. Independent Ink, a patent tying antitrust case in which the Court vacated the judgment of the U.S. Court of Appeals (FedCir) and remanded. The Court of Appeals held in January of 2005 that "a rebuttable presumption of market power arises from the possession of a patent over a tying product". The Supreme Court concluded that "Congress, the antitrust enforcement agencies, and most economists have all reached the conclusion that a patent does not necessarily confer market power upon the patentee. Today, we reach the same conclusion, and therefore hold that, in all cases involving a tying arrangement, the plaintiff must prove that the defendant has market power in the tying product."

Supreme Court Reverses in Texaco v. Dagher
2/28. The Supreme Court issued its opinion [9 pages in PDF] in Texaco v. Dagher, an antitrust case, reversing the judgment of the U.S. Court of Appeals (9thCir). While this is an antitrust case involving joint ventures in the oil industry, the holding impacts many other industry sectors, including communications and information technology, where there are also lawful joint venture agreements. The Supreme Court held that it is not per se illegal under Section 1 of the Sherman Act for a lawful, economically integrated joint venture to set the prices at which the joint venture sells its products.

District Court Rules in Perfect 10 v. Google
2/17. The U.S. District Court (CDCal) issued its order [48 pages in PDF] titled "Order Granting in Part and Denying in Part Perfect 10's Motion for Preliminary Injunction Against Google" in Perfect 10 v. Google, a copyright infringement case.

Bush Awards National Medals of Technology
2/13. President Bush gave a speech, and presented National Medals of Technology (NMT) and National Medals of Science (NMS). He discussed his "American Innovation Agenda".
House Democrats Promote Their Innovation Agenda
2/14. Rep. Nancy Pelosi (D-CA), and other House Democrats hosted an event in the Capitol Building at which they discussed the "House Democrats' Innovation Agenda".
Commentary: National Medal of Technology Program
2/17. The subject of this article is the attributes of the NMT program that relate to the question of whether this program, as provided for by the statute, and as implemented by Presidents, is well tailored for incenting creative and innovative accomplishment.

FCC Rulemaking Proceeding on CPNI May Extend to Internet Protocol Services
2/14. The Federal Communications Commission (FCC) released the text [34 pages in PDF] of its Notice of Proposed Rulemaking (NPRM) that addresses the practice of pretexting to obtain consumers' confidential phone records. The FCC adopted and announced this NPRM on February 10, 2006. The NPRM, but not the FCC's February 10 release [PDF], discloses that the FCC may expand its regulation of phone number privacy to include regulation of internet protocol (IP) enabled service providers, including voice over internet protocol (VOIP) service providers, e-mail service providers, instant messaging services, online gaming, and web browsing. The scope of the underlying statute is limited to "telecommunications carriers".

Martin Discusses Network Neutrality
2/8. Federal Communications Commission (FCC) Chairman Kevin Martin answered questions about network neutrality on February 8, 2006, at an event hosted by the American Enterprise Institute (AEI) on the just published book by former FCC Commissioner Harold Furchtgott-Roth titled A Tough Act to Follow: The Telecommunications Act of 1996 and the Separation of Powers [Amazon]. See, transcript of Martin's statements regarding network neutrality.

Rep. Smith Introduces Bill to Criminalize Pretexting to Obtain Consumer Phone or VOIP Records
2/8. Rep. Lamar Smith (R-TX) and others introduced HR 4709, the "Law Enforcement and Phone Privacy Protection Act of 2006". The bill would criminalize the practice of pretexting to obtain confidential consumer records from telecommunications carriers and VOIP service providers. It would also criminalize the sale, transfer, or purchase of such confidential records, without the authorization of the consumer.

Bush Announces American Competitiveness Agenda
1/31. President Bush gave a speech titled "State of the Union Address" at a joint session of the Congress. He announced and described in broad strokes an innovation, research and education initiative titled "American Competitiveness Initiative".

FTC Sues ChoicePoint for Sale of Consumer Data to Identity Thieves
1/26. The Federal Trade Commission (FTC) filed a four count civil complaint [14 pages in PDF] in U.S. District Court (NDGa) against ChoicePoint alleging violation of the Federal Trade Commission Act (FTCA) and the Fair Credit Reporting Act (FCRA) in connection with its sale of personal data to identity thieves. The FTC and ChoicePoint simultaneously filed a joint proposed stipulated final judgment [29 pages in PDF].

Supreme Court Rules in State Sovereign Immunity Case
1/23. The Supreme Court issued its 5-4 opinion [60 pages in PDF] in Central Virginia Community College v. Katz, a bankruptcy case regarding state sovereign immunity. The Supreme Court affirmed the judgment of the U.S. Court of Appeals (6thCir). That Supreme Court upheld a Congressional abrogation of state sovereign immunity. Previously, the Supreme Court has overturned Congress attempts to abrogate state sovereign immunity in the context of intellectual property law.

9th Circuit En Banc Panel Rules Against Yahoo in French Internet Censorship Case
1/12. The U.S. Court of Appeals (9thCir) issued its fractured en banc opinion [99 pages in PDF] in Yahoo v. LICRA, a case regarding whether Yahoo can obtain from the U.S. District Court a declaratory judgment that a French court order censoring internet speech on its servers in the U.S. is violative of the First Amendment. The panel issued a short, two paragraph, per curiam opinion that, like the three judge panel, reversed the District Court's judgment in favor of Yahoo. This outcome is a defeat for internet service providers such as Yahoo, internet speakers, and freedom of speech online.

SEC Fines McAfee $50 Million
1/4. The Securities and Exchange Commission (SEC) filed a civil complaint [22 pages in PDF] in U.S. District Court (NDCal) against McAfee (which is also known as Network Associates) alleging violation of federal securities laws in connection with its overstatement of revenues, back in 1998 through 2000. The SEC and McAfee simultaneously settled the case. McAfee will pay a fine of $50 Million. See also, SEC release.