| DC Circuit Remands Local TV
Ownership Rule to FCC |
4/2. The U.S.
Court of Appeals (DCCir) issued its opinion
in Sinclair Broadcast
Group v. FCC, remanding the FCC's local
television ownership rule for further consideration.
Sinclair Broadcast Group, a
television broadcasting company, currently owns and operates,
programs, or provides sales services to 63 television stations
in 40 markets. It filed a petition for review of the Federal Communications Commission's
(FCC) local television ownership rule. See 47
C.F.R. § 73.3555(b). This rule allows common ownership of
two TV stations in the same local market if one of the
stations is not among the four highest ranked stations in the
market and eight independently owned, full power, operational
TV stations remain in that market after the merger.
Sinclair challenged this duopoly rule on the grounds that its
"eight voices" exemption is arbitrary and
capricious, that failing to fully grandfather existing local
marketing agreements (LMAs) violates § 202(g) of the
1996 Act, is impermissibly retroactive, and constitutes an
unlawful taking of property in violation of the Fifth
Amendment, and that the restrictions violate the First
Amendment.
The Appeals Court held that the FCC "has failed to
demonstrate that its exclusion of non-broadcast media in the
eight voices exception is not arbitrary and capricious.
Accordingly, we remand the local ownership rule to the
Commission for further consideration." However, the
Appeals Court rejected both Sinclair's statutory challenge to
the local ownership rule provision on television LMAs, and its
constitutional challenges.
Judge
Judith Rogers wrote the opinion of the three judge panel,
in which Judge
Stephen Williams joined. Judge
David Sentelle dissented in part. He offered additional
arguments for finding the eight voices exemption arbitrary and
capricious. He also argued that the Appeals Court should have
vacated, rather than remanded, the rule. Finally, in
discussing Sinclair's First Amendment argument, he wrote that
the Appeals Court is still stuck with the scarcity doctrine,
and that it is time for the Supreme Court to review it. See, National
Broadcasting Company v. United States, 319 U.S. 190
(1943), and Red
Lion v. FCC, 395 U.S. 367 (1969).
The Media Access Project
(MAP), a Washington DC based group that advocates FCC
regulation of speech, issued a release
[PDF]. It stated that "While today's decision is a
temporary setback, it actually underscores the FCC's power to
promote media diversity. MAP is confident that, in the end,
existing ownership rules will be retained. The decision today
forcefully demonstrates that when the Supreme Court's
precedent is accurately applied, the FCC possesses full
freedom to protect the public and promote diversity of
viewpoints." |
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| FBI Creates Cyber Division |
4/2. The Federal Bureau of
Investigation (FBI) created a Cyber Division, and
appointed Larry Mefford as its Assistant Director. The FBI
stated that this division will "focus and coordinate the
multitude of disciplines within the FBI that are cyber
related. The division will supervise and facilitate the FBI's
investigation of federal violations in which the Internet,
computer systems and networks are exploited as the principal
instruments or targets of criminal activity."
Mefford was previously Associate Special Agent in Charge of
the FBI's San Francisco Field Office. He is a career Special
Agent, without specialization in computer science. See, FBI
release. |
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| More News |
4/2. The National Institute
of Standards and Technology (NIST) published a notice
in the Federal Register announcing that it "approves FIPS
198, The Keyed-Hash Message Authentication Code (HMAC), and
makes it compulsory and binding on Federal agencies for the
protection of sensitive, unclassified information. FIPS 198 is
an essential component of a comprehensive group of
cryptographic techniques that government agencies need to
protect data, communications, and operations." This
standard is effective August 6, 2002. See, Federal Register,
April 2, 2002, Vol. 67, No. 63, at Pages 15548 - 15549.
4/1. The U.S.
District Court (DMass) granted the Securities and Exchange Commission's
(SEC) motion for a preliminary injunction, asset freeze, and
other relief in SEC v. Anamar
Communications, Inc. and Brett Mallory, a civil
securities fraud action. The SEC alleged in its complaint,
filed on March 15, 2002, that Anamar and Mallory violated
§ 17(a) of the Securities Act of 1933, § 10(b) of
the Securities and Exchange Act of 1934 and Rule 10b-5
thereunder by fraudulently offering and selling shares of
Anamar stock via the Internet and other means. The complaint
alleges that defendants falsely stated that Verizon would buy Anamar.
See, SEC
release.
4/2. Herbert Derungs plead guilty in U.S.
District Court (NDCal) to three counts of mail fraud in
violation of 18
U.S.C. § 1341, and three counts of wire fraud in
violation of 18
U.S.C. § 1343. Derungs sold over eBay baseball bats that he
falsely claimed had been used in games by major league
baseball players. See, USAO
release.
4/2. The U.S. Patent and
Trademark Office (USPTO) published a copy of the March
April issue of USPTO Today [PDF] in its web site.
4/2. The U.S. Patent and
Trademark Office (USPTO) announced that it will hold a
series of half day seminars on the Trademark Electronic
Application System (TEAS) in Philadelphia, Cleveland,
Dallas, Denver, and San Francisco. See, USPTO
notice. |
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| EPIC Files FOIA Suit
Against Office of Homeland Security |
4/2. The Electronic Privacy
Information Center (EPIC) filed a complaint
[PDF] in U.S. District
Court (DC) against the Office of Homeland
Security (OHS) and Tom
Ridge alleging violation of the Freedom of Information Act
(FOIA), 5 U.S.C.
§ 552. The EPIC seeks expedited release of records
regarding a government national identification system,
biometric identification systems, and a trusted flier program.
The complaint alleges that "Subsequent to the terrorist
attacks of September 11, 2001, the newly created Office of
Homeland Security reportedly began drafting legislation, and
planning and designing security systems, that could implicate
the privacy rights of American citizens. These initiatives
reportedly include proposed model state legislation requiring
that driver's licenses issued to noncitizens be tied to visas;
the development of biometric identification systems; and
establishment of a ``trusted flier´´ program that would
create a new federally issued identity card."
The EPIC submitted its FOIA request to the OHS on March 20,
2002, requesting "all records relating to efforts to
standardize driver's licenses across the country in the
possession of the Office for Homeland Security, including but
not limited to memos, talking points, reports and draft
legislation." The EPIC also requested "all records
associated with [the trusted-flier program] and other
proposals being considered by the Office that rely on
biometric technology to identify citizens and visitors to
America."
The EPIC also requested expedited processing of its FOIA
request, noting that "there is a particular urgency to
inform the public about the government’s proposed
activity," and that "funding and legislative
decisions" regarding this activity "are currently
before Congress."
The complaint alleges that defendants have violated the FOIA
and the Administrative Procedure Act through "failure to
timely respond to plaintiff's request for expedited
processing" and "failure to grant plaintiff's
request for expedited processing". The EPIC seeks a court
order compelling defendants to "immediately to process
the requested records in their entireties".
While the FOIA provides that all federal agencies are covered,
"including the Executive Office of the President"
(see, 5 U.S.C. § 552(f)), this has been limited by court
rulings. Many activities of the Executive Office of the
President are not subject to the FOIA.
David Sobel, General Counsel of the EPIC, stated at a press
conference on April 2 that "the Office of Homeland
Security is based in the Executive Office of the
President". He added that the EOP has not indicated to
the EPIC, or in its web site, whether it considers the OHS to
be covered by the FOIA. "I am not entirely sure what the
administration's position is on this question", said
Sobel.
Marc Rotenberg, Executive Director of the EPIC, stated that
OHS policy making "should be done in the bright light of
day." He also wrote a letter
to Congressional leaders, in which he stated that "We
submitted this request because of the enormous implications
for privacy and civil liberties in America if such a system
were deployed, and because we believe that the Office of
Homeland Security should be subject to the same open record
laws that govern other federal agencies which engage in
substantial policymaking."
Rotenberg concluded in the letter that "It is imperative
that the Office of Homeland Security comply with the Freedom
of Information Act, a law that helps ensure the preservation
of open government and the protection of the constitutional
values of the United States." However, the letter does
not explicitly ask for anything from the Congress. |
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| FTC Files Suits Against
Fraudulent Spammers and Online Sellers |
4/2. The Federal Trade
Commission (FTC) announced that it has filed several civil
complaints alleging fraudulent spam, online fraud, and
violation of the FTC's Mail Order Rule. See also, FTC release.
The FTC filed a complaint
[PDF] on March 29 in the U.S. District Court (SDOhio) against
Linda Lightfoot and Charles Childs, dba Universal Direct,
alleging violation of the Federal Trade Commission Act in
connection with an spam chain letter.
The FTC filed a complaint
[PDF] in the U.S. District Court (WDWash) against David Walker
alleging violation of the Federal Trade Commission Act in
connection with the use of a web site to promote fraudulent
cancer treatment products.
The FTC filed a complaint
[PDF] on March 5 in the U.S. District Court (DOr) against
Sound City 2000 and Linda Simmons alleging violation of the
FTC's Mail Order Rule in connection with the sale through a
web site of compact discs, which defendants failed to ship
within the promised time period. The District Court entered a Consent
Decree [PDF] on March 6 barring defendants from further
violation of the rule. |
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| About Tech Law Journal |
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to the TLJ Daily E-Mail Alert is $250 per year. However, there
are discounts for entities with multiple subscribers. Free one
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Contact: 202-364-8882; E-mail.
P.O. Box 4851, Washington DC, 20008.
Privacy
Policy
Notices
& Disclaimers
Copyright 1998 - 2002 David Carney, dba Tech Law Journal. All
rights reserved. |
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| Wednesday, April 3 |
The House and Senate are both in recess for the Spring
District Work Period. Both bodies will return on Monday, April
8.
The Supreme Court of the U.S. is on recess until Monday, April
15.
10:00 AM. A group of trade associations will hold a press
conference to announce the formation of a group named the High
Tech Broadband Coalition. The speakers will be Robert
Holleyman (P/CEO of the Business
Software Alliance), Gary Shapiro (P/CEO of the Consumer Electronics Association),
Jerry Jasinowski (President of the National Association of
Manufacturers), George Scalise (President of the Semiconductor Industry
Association), and Matthew Flanigan (President of the Telecommunications Industry
Association). For more information, contact Jeff Joseph (CEA)
at 703 907-7664 or jjoseph@ce.org.
Location: Lisagor Room, National
Press Club, 529 14th St. NW, 13th Floor.
12:15 PM. The Federal
Communications Bar Association's International Practice
Committee will host a brown bag lunch. The speakers will be Tom
Tycz (Chief of the FCC's International Bureau's Satellite
Division), James Ball (Chief of the FCC's International
Bureau's Policy Division), and Kathryn O'Brien (Chief
of the FCC's International Bureau's Strategic Analysis and
Negotiations Division). RSVP to Laurie Sherman at 202 223-7365
or Patricia Paoletta at 202 719-7532. Location: FCC, 445 12th
Street, SW, Conference Room 6-B516. |
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| Thursday, April 4 |
8:30 AM - 5:30 PM. Day one of a two day event hosted by the
Department of Commerce's (DOC's) National Telecommunications
and Information Administration (NTIA) titled
"Spectrum Summit". The summit will address spectrum
allocation and efficiency, the spectrum requirements of new
technologies, and regulatory processes. See, NTIA
notice and notice
in Federal Register. Location: auditorium, Department of
Commerce, 1401 Constitution Ave., NW.
2:00 - 4:00 PM. There will be a meeting of the FCC's Advisory
Committee for the 2003 World Radiocommunication Conference.
See, FCC
notice [PDF], and notice
in Federal Register. Location: FCC, Commission Meeting Room,
Room TW-C305, 445 12th Street, SW.
4:00 PM. Dan
Burk (Professor, University of Minnesota Law School) will
give a lecture titled "Anti Circumvention Misuse".
He will review the history of the equitable misuse doctrine in
the context of patents and copyrights, and argue that the DMCA
anti circumvention right is a new form of intellectual
property that should be subject to the equitable misuse
doctrine. For more information, contact Prof. Robert Brauneis
at rbraun @main.nlc.gwu.edu
or (202) 994-6138. Location: The George Washington University
Law School 720 20th Street, NW. |
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| Friday, April 5 |
8:30 AM - 4:15 PM. Day two of a two day event hosted by the NTIA
titled "Spectrum Summit". The summit will address
spectrum allocation and efficiency, the spectrum requirements
of new technologies, and regulatory processes. See, NTIA
notice and notice
in Federal Register. Location: Ronald Reagan International
Trade Center, 1300 Pennsylvania Avenue, NW.
9:00 AM. The FCC's
electronic filing systems will be shut down for maintenance
purposes. This shut down will last through 1:00 PM on April 7.
See, FCC
notice.
9:30 AM. The U.S. Court of Appeals (DCCir)
will hear oral argument in Global Naps Inc v. FCC, No.
01-1192. Judges Edwards, Roger and Tatel will preside.
Location: 333 Constitution Ave. NW.
Extended deadline to submit comments to the Copyright Office in
response to its Notice of Proposed Rulemaking on "the
requirements for giving copyright owners reasonable notice of
the use of their works for sound recordings under statutory
license and for how records of such use shall be kept and made
available to copyright owners." See, original notice
in Federal Register, and extension notice
in Federal Register. |
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| Monday, April 8 |
The House and Senate return from the Spring District Work
Period. The Senate is scheduled to meet at 3:00 PM.
9:30 AM. The U.S.
Court of Appeals (DCCir) will hear oral argument in Morris
Communications v. FCC, No. 01-1123. Judges Edwards, Tatel
and Silberman will preside. Location: 333 Constitution Ave.
NW. |
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| Tuesday, April 9 |
| 4:00 PM. Margo
Bagley (Emory University School of Law) will give a
lecture titled "Patent First, Ask Questions Later:
Morality as a Statutory Component of Patentability". For
more information, contact Robert Brauneis at rbraun @main.nlc.gwu.edu
or 202 994-6138. Location: George Washington University Law
School, 2000 H Street, NW. |
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