9/1. The Department of Justice's (DOJ) Office of the Solicitor General (OSG), the DOJ's Antitrust Division, and the Federal Communications Commission (FCC) filed a Petition for Writ of Certiorari [37 pages in PDF] with the U.S. Supreme Court in FCC v. Brand X.

On March 14, 2002, the FCC adopted a Declaratory Ruling and Notice of Proposed Rulemaking [75 pages in PDF]. The Declaratory Ruling (DR) component of this item states that "we conclude that cable modem service, as it is currently offered, is properly classified as an interstate information service, not as a cable service, and that there is no separate offering of telecommunications service."

Brand X, EarthLink, the State of California, and the Consumer Federation of America filed petitions for review in which they argued that cable modem service is both an information service and a telecommunications service, and is therefore subject to regulation on a common carriage basis. That is, they argue that cable broadband providers must be required to let other internet service providers (ISPs) use their facilities.

On October 6, 2003 the U.S. Court of Appeals (9thCir) issued its opinion [39 pages in PDF] in Brand X Internet Services v. FCC, vacating the FCC's declaratory ruling that cable modem service is an information service, and that there is no separate offering as a telecommunications service. See also, story titled "9th Circuit Vacates FCC Declaratory Ruling That Cable Modem Service is an Information Service Without a Separate Offering of a Telecommunications Service" in TLJ Daily E-Mail Alert No. 754, October 7, 2003. This opinion is also reported at 345 F.3d 1120.

On April 1, 2004 the Appeals Court denied petitions for rehearing en banc. See, story titled "9th Circuit Denies Rehearing in Brand X v. FCC" in TLJ Daily E-Mail Alert No. 868, April 2, 2004. However, the Court of Appeals subsequently issued a stay of its mandate on April 9.

FCC Chairman Michael Powell (at right) issued a statement [PDF] about the present cert petition. "This is about ensuring that high-speed Internet connections aren't treated like what they're not: telephones. A successful appeal of this case would ultimately mean lower prices and better service for American consumers. Applying taxes, regulations and concepts from a century ago to today's cutting-edge services will only stifle innovation and competition."

The petition states that the issue is "Whether the court of appeals erred in holding that the Federal Communications Commission had impermissibly concluded that cable modem service is an ``information service,´´ without a separately regulated telecommunications service component, under the Communications Act of 1934, 47 U.S.C. 151 et seq."

The petition states that "This case is likely to determine the regulatory classification under the Communications Act that will apply to broadband (i.e., “high-speed”) Internet access services in the United States. The Federal Communications Commission concluded that broadband service provided over cable television facilities, known as “cable modem” service, should be classified as an “information service” under the Communications Act, a classification that would presumptively keep cable modem providers free from regulation as telecommunications common carriers under the Act."

The petition continues that "the Ninth Circuit, acting in a series of cases that had been filed in various circuits but consolidated and by lottery assigned to that court, rejected the FCC's conclusion without evaluating the substance of the agency’s decision or applying the standards for administrative deference set forth in Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837 (1984). Instead, the court held that stare decisis compelled adherence to its own circuit precedent -- dating from before the FCC had reached its conclusion on the issue -- that classified cable modem service as partly an information service and partly a telecommunications service. See AT&T Corp. v. City of Portland, 216 F.3d 871 (9th Cir. 2000). Absent this Court's review, therefore, a vastly important aspect of national telecommunications policy will have been settled in the Ninth Circuit, and for all practical purposes throughout the country, without any evaluation whatever of the FCC’s contrary interpretation of the statute it is charged with administering."

The petition argues that "The Ninth Circuit has incorrectly overridden the expert agency responsible for administering and interpreting the Communications Act with respect to a communications policy issue of immediate and compelling national importance: the regulatory framework under the Act that will apply to, and thus either promote or retard, the timely and universal deployment of broadband Internet access services in the United States. If the court of appeals’ decision stands, the FCC will be required to regulate cable modem service -- and likely other forms of broadband Internet access service -- as a telecommunications service under the Communications Act, even though the Commission has concluded that such regulation is inconsistent with, and would directly threaten, the important federal policy of promoting access to those services."

8/30. The Federal Trade Commission (FTC) filed a civil complaint [7 pages in PDF] in U.S. District Court (DNev) against Braglia Marketing Group (BMG), and its principals, Frank and Kate Braglia, alleging violation of FTC's Telemarketing Sales Rule (TSR), 16 C.F.R. Part 310, and Section 5(a) of the FTC Act, 15 U.S.C. § 45(a). The complaint alleges that the defendants made telemarketing calls to individuals whose numbers are on the National Do Not Call Registry, abandoned calls, and failed to pay the fee required to access the National Do Not Call Registry.

The FTC wrote in a release that "This is the first time the agency has sought civil penalties for violations of the Registry".

The complaint alleges that BMG is a telemarketing business based in Nevada that is owned by Frank and Kate Braglia. It alleges that "On or after October 1, 2003, in connection with telemarketing, BMG has placed, or caused others to place, more than 300,000 calls to consumer' telephone numbers that are on the National Do Not Call Registry." The complaint alleges that they made calls to induce consumers to purchase goods or services from Flagship Resort Development Corporation and Atlantic Palace Development, LLC.

This case is Federal Trade Commission v. Braglia Marketing Group, et al., U.S. District Court for the District of Nevada, D.C. CV-S-04-1209-DWH-PAL.

9/1. The U.S. Court of Appeals (9thCir) issued its opinion [18 pages in PDF] in Nursing Home Pension Fund v. Oracle, a class action securities fraud case involving the issue of scienter.

The Nursing Home Pension Fund and others filed a complaint in U.S. District Court (NDCal) against Oracle, Larry Ellison, and others, alleging violation of §§ 10b-5 and 20a of the Securities Exchange Act of 1934.

The District Court dismissed the complaint for failure to state a claim upon which relief can be granted. It held that the plaintiffs failed to raise a strong inference of scienter, as required by the Private Securities Litigation Reform Act (PSLRA).

The Appeals Court reversed and remanded. Following the 9th Circuit's approach in In re Silicon Graphics Sec. Litig., 183 F.3d 970 (1999). The Court concluded that "The PSLRA was designed to eliminate frivolous or sham actions, but not actions of substance. This is far from a cookie-cutter complaint. Together, the false representations, both as to current facts and future estimated profits and sales, as well as the improper revenue adjustment and unusual stock sales, provide a basis for the cause of action against Oracle and each of its three top executives."

This case is Nursing Home Pension Fund, Local 144, et al. v. Oracle Corporation, et al., U.S. Court of Appeals for the 9th Circuit, App. Ct. No. 03-15883, an appeal from the U.S. District Court for the Northern District of California, Judge Martin Jenkins presiding, D.C. No. CV-01-00988-MJJ. Judge Warren Ferguson wrote the opinion of the Court, in which Judges Stephen Reinhardt and Richard Paez joined.

9/1. The U.S. Court of Appeals (6thCir) issued its opinion in American Trim v. Oracle, a contract dispute regarding the sale of business software. American Trim is a joint venture of Alcoa and Superior Metal Products, Inc., that makes and sells component parts to automobile and appliance manufacturers. It purchased software from Oracle to facilitate the processing of electronic orders.

American Trim filed a complaint in U.S. District Court (NDOhio) against Oracle (based upon diversity of citizenship) alleging breach of contract, breach of express and implied warranties, negligent misrepresentation, and fraudulent inducement. After a jury trial, American Trim was awarded $3,000,000 in compensatory damages and $10,000,000 in punitive damages.

Oracle appealed. The Court of Appeals affirmed.

This case is American Trim LLC v. Oracle Corporation, U.S. Court of Appeals for the 6th Circuit, App. Ct. No. 02-4186, an appeal from the U.S. District Court for the Northern District of Ohio, at Toledo, D.C. No. 99-07265, Judge James Carr presiding. Judge Julia Gibbons wrote the opinion of the Court, in which Judges David Lawson and Suhrheinrich joined.

8/30. The U.S. Court of Appeals (1stCir) issued its opinion in Paul Revere Life Insurance Company v. Paul Bromberg, an Employee Retirement Income Security Act (ERISA) case involving a claim of repetitive stress injury by a computer programmer who asserted injury caused by using a computer keyboard. Paul Revered filed a complaint in U.S. District Court (DMass) against its insured, Bromberg, a computer software engineer previously employed by Ascent Technologies, seeking a declaratory judgment of non-coverage. The District Court dismissed the complaint for lack of subject matter jurisdiction. The Court of Appeals reversed and remanded.

8/26. The U.S. District Court (DMass) issued its opinion [70 pages in PDF] in Global Naps v. Verizon, a case regarding a state public utilities commission's interpretation of an interconnection agreement.

8/23. The U.S. Court of Appeals (8thCir) issued its opinion [13 pages in PDF] in Qwest v. Worldcom, an appeal from a District Court permanent injunction barring the Minnesota Public Utilities Commission (MPUC) from requiring Qwest to provide WorldCom with reports regarding the provision of certain telecommunications services. The Appeals Court reversed on the basis that the Federal Communications Commission (FCC) has not preempted the authority of the MPUC in this area.

9/1. Linda Blair was named acting Chief of the Federal Communications Commission's (FCC) Office of Strategic Planning and Policy Analysis (OSP), effective "at the end of September". She is now the Deputy Chief of the FCC's Enforcement Bureau and Deputy Director of the FCC's Homeland Security Policy Council (HPSC). She will replace Jane Mago. See, FCC release. In addition, Mago was named SVP -- General Counsel of the National Association of Broadcasters (NAB). Before heading the FCC's OSP, she oversaw the FCC's Office of General Counsel (OGC). She will replace Jack Goodman who will leave the NAB. The NAB, whose members are licensed and regulated by the FCC, stated in a release that "Mago will report directly to NAB's Executive Vice President of Legal & Regulatory Affairs Marsha MacBride". Marsha MacBride was previously Chief of Staff of the FCC, early in the Chairmanship of Michael Powell. Back on June 17, 2004, the FCC's International Bureau released a working paper [36 pages in PDF] titled "Traits of an Independent Communications Regulator: a Search for Indicators". It states that one indicator of regulatory independence "is whether there is a revolving door for the staff to move between the regulator and the industry. Greater independence is possible if staff serve their entire careers in the regulatory organization."

8/31. David Wonnenberg was named Press Secretary of the Senate Commerce Committee, which is chaired by Sen. John McCain (R-AZ). As of September 7, 2004, Wonnenberg can be reached at 202 224-2670 or david_wonnenberg@commerce.senate.gov. He will replace Rebecca Fisher.

8/31. Rebecca Fisher will join the Federal Communications Commission's (FCC) Media Bureau as spokesperson and media liaison, on September 7, 2004. Her e-mail address will be rebecca.fisher@fcc.gov. See, FCC release [PDF].

8/31. Solveig Singleton was named a Senior Adjunct Fellow at the Progress & Freedom Foundation. She has previously held positions at the Cato Institute, the Competitive Enterprise Institute, and the Federalist Society for Law & Public Policy Studies.

8/30. The Federal Communications Commission (FCC) announced numerous changes to the management team of the FCC's Wireless Telecommunications Bureau's (WTB) Spectrum & Competition Policy Division. See, FCC release [PDF].

8/26. John Pistole was named Deputy Director of the Federal Bureau of Investigation (FBI). He has worked for the FBI since 1983. He replaces Bruce Gebhardt, who retired. The FBI stated in a release that "Pistole will oversee all operational and investigative matters in the FBI, with a particular emphasis oversight of the FBI's reengineering efforts".

8/25. Rep. Pete Hoekstra (R-MI) was named Chairman of the House Intelligence Committee. He replaces Rep. Porter Goss (R-FL), whom President Bush has nominated to be Director of the Central Intelligence Agency (CIA). See, statement [PDF] by House Speaker Denny Hastert.

The House and Senate are in recess through September 6.

The Republican National Convention will be held in New York City on August 30 through September 2.

10:00 AM - 12:00 NOON. The Federal Communications Commission's (FCC) WRC 07 Advisory Committee, Informal Working Group 5: Regulatory Issues, will meet. See, FCC notice [PDF]. Location: The Boeing Company, 1200 Wilson Boulevard, Arlington, VA. The nearest Metro stop is the Rosslyn Metro Station.

Deadline to submit nominations to the U.S. Patent and Trademark Office (USPTO) for positions on the Patent Public Advisory Committee (PPAC) and the Trademark Public Advisory Committee (TPAC) with terms that begin November 27, 2004. Nominations must be postmarked or electronically transmitted by September 3, 2004. See, notice in the Federal Register, August 2, 2004, Vol. 69, No. 147, at Pages 46136 - 46137.

Deadline to submit comments to the National Institute of Standards and Technology (NIST) regarding its draft Special Publication 800-72 [60 pages in PDF], titled "Guidelines on PDA Forensics". This publication is designed to assist forensic specialists involved in law enforcement and other investigations in accessing and examining data on Palm OS, Pocket PC and Linux based personal digital assistants (PDAs). Send comments to PDAforensics@NIST.Gov.

Labor Day. The Federal Communications Commission (FCC) and other federal offices will be closed. See, Office of Personnel Management's (OPM) list of federal holidays.

The House and Senate will return from the August recess.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its notice of proposed rulemaking (NPRM) regarding the process for designation of eligible telecommunications carriers (ETCs) and the FCC's rules regarding high-cost universal service support. This NPRM is FCC 04-127 in Docket No. 96-45. See, notice in the Federal Register, July 7, 2004, Vol. 69, No. 129, at Pages 40839 - 40843.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its notice of proposed rulemaking (NPRM) regarding the rechannelization of portions of the 17.7-19.7 GHz band. This NPRM is FCC 04-77 in WT Docket No. 04-143. See, notice in the Federal Register, July 7, 2004, Vol. 69, No. 129, at Pages 40843 - 40850.

Deadline to submit comments to the Copyright Office (CO) in response to its notice of proposed rulemaking (NPRM) regarding amendments to the CO's regulations to permit the Library of Congress to record unpublished radio and other audio and audiovisual transmission programs. The CO stated that "regulations already provide for the Library of Congress to obtain copies of unpublished television transmission programs, either by recording fixations or by demanding copies in the form of a transfer, loan or sale at cost. This revised regulation makes similar provisions for audio transmission programs and includes transmission programs made available by radio broadcasts and by digital communications networks such as the Internet." See, notice in the Federal Register, August 5, 2004, Vol. 69, No. 150, at Pages 47396 - 47399.

10:00 AM. The Senate Judiciary Committee will hold a hearing on judicial nominations. Press contact: Margarita Tapia at 202 224-5225. Sen. Orrin Hatch (R-UT) will preside. Location: Room 226, Dirksen Building.

12:15 PM. The Federal Communications Bar Association's (FCBA) Mass Media Practice Committee will host a brown bag lunch. William Freedman, Deputy Chief of the Federal Communications Commission's (FCC) Enforcement Bureau's (EB) Investigations and Hearings Division, will discuss the FCC's policies and procedures for enforcement of indecency related complaints. No RSVP is required. Location: National Association of Broadcasters (NAB), 1771 N Street NW, Conference Rooms A&B.

5:30 - 6:45 PM. The American Enterprise Institute (AEI) will host a lecture by Sam Peltzman (University of Chicago) titled "Regulation and the Natural Progress of Opulence". He will argue that some regulations make matters worse because of offsetting personal or market behavior, and discuss why some counterproductive regulations remain in place while others are repealed. The lecture will be followed by a reception. See, notice. Location: AEI, Twelfth floor, 1150 17th St., NW.

Deadline to submit comments to the Federal Communications Commission (FCC) in response to its further notice of proposed rulemaking (FNPRM) to determine whether mobile satellite service (MSS) operators using different technologies could share additional spectrum in the 1610-1626.5 MHz band (L-band). This FNPRM is FCC 04-134 in IB Docket No. 02-364 and ET Docket No. 00-258. See, notice in the Federal Register, August 9, 2004, Vol. 69, No. 152, at Pages 48192 - 48194.

9:30 AM. The Federal Communications Commission (FCC) will hold a meeting. The event will be webcast. Location: FCC, 445 12th Street, SW, Room TW-C05 (Commission Meeting Room).

9:30 AM. The Senate Judiciary Committee will hold an executive business meeting. Press contact: Margarita Tapia at 202 224-5225. See, notice. Location: Room 226, Dirksen Building.

2:00 - 4:30 PM. The Federal Communications Commission (FCC) will hold an event titled "Discussion on the Debt Collection Improvement Act Rules and Rules Governing Applications or Other Request for Benefits by Debtors". See, original notice [PDF] and rescheduling notice [PDF]. Location: FCC, Commission Meeting Room, 445 12th Street, SW.

2:00 - 4:00 PM. The American Enterprise Institute (AEI) will host a demonstration titled "How NASDAQ's Electronic Market Works". The speakers will be Frank Hatheway and Peter Marlyn (NASDAQ) and Peter Wallison (AEI). See, notice. Location: AEI, Twelfth floor, 1150 17th St., NW.

Deadline to submit comments to the National Institute of Standards and Technology (NIST) regarding its notice in the Federal Register that it intends to withdraw Federal Information Processing Standard (FIPS) 46–3, which specified the Data Encryption Standard (DES), and the associated FIPS 74 and FIPS 81. The NIST has determined that "the strength of the DES algorithm is no longer sufficient to adequately protect Federal government information". See, Federal Register, July 26, 2004, Vol. 69, No. 142, at Pages 44509 - 44510. Send comments to descomments@nist.gov.

9:30 - 11:00 AM. The Progressive Policy Institute (PPI) will host a panel discussion titled "Telecommunications Reform: Is the “Network Layers” Approach the Right One?". The speakers will be Rick Whitt (Senior Director of Global Policy and Planning at WorldCom), Link Hoeing (Assistant Vice President, Issues Management and Technology Policy at Verizon), and Rob Atkinson (Director of the PPI's Technology and New Economy Project). Free. Breakfast will be served. Location: PPI, 600 Pennsylvania Ave., SE, Suite 400.

Extended deadline to submit comments to the Federal Communications Commission (FCC) in response to its public notice (DA 04-1690) requesting public comments on constitutionally permissible ways for the FCC to identify and eliminate market entry barriers for small telecommunications businesses and to further opportunities in the allocation of spectrum-based services for small businesses and businesses owned by women and minorities. See, original notice in the Federal Register, June 22, 2004, Vol. 69, No. 119, at Pages 34672 - 34673; and, notice of extension [PDF].

Deadline to submit requests to testify at the September 23 public hearing of the Office of the U.S. Trade Representative (USTR) regarding the USTR's annual report to the Congress on the Peoples Republic of China's compliance with the commitments that it made in connection with its accession to the World Trade Organization (WTO). Requesters must also submit a copy of their written testimony. See, notice in the Federal Register, July 29, 2004, Vol. 69, No. 145, at Pages 45369 - 45370.

9/1. The Federal Communications Commission (FCC) extended the deadlines for submitting comments in response to its Notice of Inquiry (NOI) [15 pages in PDF] regarding "issues relating to the presentation of violent programming on television and its impact on children." The original deadlines for comments and reply comments were September 15 and October 15, 2004. The extended deadlines are October 15 and November 15. This NOI is FCC 04-175 in MB Docket No. 04-261. See, story titled "FCC Issues NOI on Violent TV Programming" in TLJ Daily E-Mail Alert No. 950, August 2, 2004. See also, notice in the Federal Register, August 12, 2004, Vol. 69, No. 155, at Pages 49899 - 49904 setting original comment deadlines, and Order [PDF] extending the deadlines.

9/1. The Federal Trade Commission's (FTC) final rule amending its Telemarketing Sales Rule (TSR) by revising the fees charged to entities accessing the National Do Not Call Registry took effect. See, notice in the Federal Register, July 30, 2004, Vol. 69, No. 146, at Pages 45580 - 45586.

8/31. Kevin P. Hannon plead guilty in U.S. District Court (SDTex) to one count of conspiracy to commit securities and wire fraud, in violation of 18 U.S.C. § 371, 15 U.S.C. §§ 78j(b) and 78(ff), 17 C.F.R. §§ 240.10b-5 and 240.10b5-1, and 18 U.S.C. § 1343. He is a former Chief Operating Officer of Enron Broadband Services. See, DOJ release.

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