9/9. The U.S. District Court (NDCal) issued its Findings of Facts, Conclusions of Law and Order Thereon [164 pages in PDF] in U.S. v. Oracle, in which the government sought to enjoin Oracle Corporation's proposed acquisition of PeopleSoft, Inc., on antitrust grounds. The Court held that the government failed to meet its burden of showing by a preponderance of the evidence that the proposed merger is likely substantially to lessen competition in a relevant product and geographic market. Hence, the Court directed the entry of judgment against the government, and in favor of Oracle.

On February 26, 2004, the U.S. and several states filed a complaint in U.S. District Court (NDCal) against Oracle alleging that its proposed acquisition of PeopleSoft would lessen competition substantially in interstate trade and commerce in violation of Section 7 of the Clayton Act, which is codified at 15 U.S.C. § 18. The plaintiffs sought an injunction of the proposed acquisition.

The complaint alleged that "Unless it is enjoined, Oracle's proposed acquisition of PeopleSoft will substantially increase already high concentration among vendors that sell high function Human Resource Management (HRM) software and high function Financial Management Services (FMS) software purchased by organizations for use in the United States and abroad. More specifically, the proposed transaction will eliminate aggressive head-to-head competition between Oracle and PeopleSoft".

It added that "Such a reduction in competition is likely to result in higher prices, less innovation and decreased support for these high function integrated software applications."

The complaint asserted very narrow definitions of the relevant markets. It alleged that "High function HRM and high function FMS software are lines of commerce and distinct markets under Section 7 of the Clayton Act." It further alleged that there are only three companies that compete in these markets, Oracle, PeopleSoft, and SAP. The complaint thus alleged that this would be a three to two merger.

See, story titled "Antitrust Division Sues Oracle to Enjoin Its Proposed Acquisition of PeopleSoft" in TLJ Daily E-Mail Alert No. 846, March 1, 2004.

The Court concluded that "In order to succeed on their claim, plaintiffs must prove by a preponderance of the evidence (1) the relevant product and geographic market, and within this market (2) the effect of Oracle's acquisition of PeopleSoft may be substantially to diminish competition."

The Court wrote that "Plaintiffs alleged a product market limited to HRM and FMS software licensed by Oracle, PeopleSoft and SAP. Plaintiffs also alleged a geographic market limited to the United States. Plaintiffs have proven that the relevant product market does not include incumbent systems or the integration layer. But plaintiffs failed to prove that outsourcing solutions, best of breed solutions and so-called mid-market vendors should be excluded from the relevant product market. Furthermore, plaintiffs have failed to establish that the area of effective competition is limited to the United States."

"Accordingly, plaintiffs have failed to meet their burden of proving the relevant market for section 7 analysis." And hence, the plaintiffs "are not entitled to a presumption of illegality".

The Court continued that the "Plaintiffs have failed to prove the likelihood that a post-merger Oracle and SAP would tacitly coordinate by allocating customers or markets. Accordingly, the plaintiffs have not met their burden of establishing anticompetitive coordinated effects." Also, they "have failed to prove an area of localized competition between Oracle and PeopleSoft in which a post-merger Oracle could profitably impose" a small but significant and nontransitory price increase (SSNIP). "Accordingly, plaintiffs have not met their burden of establishing the likelihood of anticompetitive unilateral effects."

The Court noted that "Oracle has not proved by a preponderance of the evidence cognizable efficiencies sufficient to rebut any anticompetitive effects of Oracle’s acquisition of PeopleSoft", but since the government has "not shown by a preponderance of the evidence that the merger of Oracle and PeopleSoft is likely substantially to lessen competition in a relevant product and geographic market in violation of 15 USC § 7, the court directs the entry of judgment against plaintiffs and in favor of defendant Oracle Corporation."

Hewitt Pate (at right), Assistant Attorney General in charge of the Antitrust Division, stated in a release that "We are disappointed in the Court's decision. We believe the facts and evidence in this case support our position that Oracle’s proposed acquisition of PeopleSoft would result in a substantial lessening of competition in the markets for high function Human Resources Management and Financial Management Systems software. The Department is considering its options."

One option would be to appeal to the U.S. Court of Appeals for the 9th Circuit.

Oracle Chairman Jeffrey Henley stated after the ruling, in a release, that "This decision puts the onus squarely on the board of PeopleSoft to meet with us and to redeem their poison pill so that the shareholders can accept our offer".

Oracle also wrote an open letter to PeopleSoft customers in which it stated that "We are hopeful that clearance for the acquisition will be obtained in a timely manner from the remaining antitrust authorities currently reviewing the transaction, including the European Commission."

PeopleSoft also issued a release. It wrote that its Board of Directors "has carefully considered and unanimously rejected each of Oracle's offers, including its current offer of $21.00 per share. On May 25, 2004, the Board concluded that the current offer was inadequate and did not reflect PeopleSoft's real value. The Board received the opinions of Citigroup Global Markets Inc. and Goldman, Sachs & Co. that the $21.00 per share offer was inadequate from a financial point of view."

PeopleSoft also stated that it "claims compensatory damages of more than $1 billion plus punitive damages in the Company's lawsuit against Oracle, which is scheduled to go to trial before a jury in Oakland, California, on November 1, 2004. PeopleSoft's complaint alleges that Oracle has engaged in unfair business practices, including a deliberate campaign to mislead PeopleSoft's customers and disrupt its business."

9/8. The House Commerce Committee's Subcommittee on Telecommunications and the Internet held a hearing titled "Law Enforcement Access to Communications Systems in a Digital Age".

On August 9, 2004 the Federal Communications Commission (FCC) released a Notice of Proposed Rulemaking and Declaratory Ruling (NPRM & DR) [100 pages in PDF] regarding imposing Communications Assistance for Law Enforcement Act (CALEA) obligations upon broadband internet access services and voice over internet protocol (VOIP) services. See, story titled "Summary of the FCC's CALEA NPRM" in TLJ Daily E-Mail Alert No. 960, August 17, 2004.

The Subcommittee heard from government witnesses who spoke in support of the FCC's NPRM -- Laura Parsky (a Deputy Assistant Attorney General in the DOJ's Criminal Division) and Marcus Thomas (Deputy Assistant Director of the FBI in charge of its Investigative Technology Division). Julius Knapp, the Deputy Chief of the FCC's Office of Engineering and Technology (OET), also defended the FCC's NPRM.

Two witnesses criticized the FCC's NPRM, as well as the DOJ's March 10, 2004 petition for rulemaking [83 pages in PDF] -- Jim Dempsey of the Center for Democracy and Technology (CDT), and Stewart Baker, who testified on behalf of the Telecommunications Industry Association.

Jim Dempsey wrote in his prepared testimony that the DOJ and FCC "are trying to force the Internet into a 20th century mold. In terms of innovation, cost, privacy, network security, and national security, this is the wrong approach. Instead of making the Internet look like the telephone system of the past, the FBI and other law enforcement agencies need to acquire in-house capabilities to analyze digital communications. They should use the Internet, not try to control it. Keeping pace with technology should not require slowing it down."

He also argued at the hearing that the CALEA is not the right statute for addressing law enforcement access to the internet, and that the FBI, which is becoming a telecommunications regulation authority, is not the right agency for this task.

Both Dempsey and Stewart Baker argued that the CALEA statute does not support the proposals contained in the NPRM. Baker added that to "slip it in through the back door at the FCC is not the way to go".

Baker argued that the DOJ and FCC proposals would harm innovation. He said the now innovators simply devise new business models and then deploy them. But, if the proposals of the DOJ and FCC are implemented, the FBI would become a regulatory agency, and innovators would have to go to the FBI first. He argued that at the FBI "all of the incentives are to say no" to new technologies.

Richard Green, President and Chief Executive Officer of Cable Television Laboratories, Inc. wrote in his prepared testimony [8 pages in PDF] that "The cable industry has a history of providing law enforcement with the assistance it needs" and that "The cable industry has met all of the FBI’s needs with regard to VoIP."

Subcommittee members offered comments, and asked questions.

Rep. John Dingell (D-MI), the ranking Democrat on the full Committee, did not attend the hearing, but submitted a vaguely worded statement for the record. He wrote that "It is imperative that the Bush Administration and the Federal Communications Commission (FCC) fully implement CALEA", but did not comment on the content of the DOJ's petition, or the FCC's NPRM. He wrote that the "CALEA provides the Commission authority to bring within the scope of CALEA new services that act as a replacement for a substantial portion of local exchange service", but did not state whether the substantial replacement analysis contained in the FCC's NPRM is correct.

He also wrote that "Although CALEA was written ten years ago in a mostly analog world, Congress understood that new digital communications technologies were on the horizon. Accordingly, CALEA was written with sufficient flexibility to preserve the government's ability to access many communications among users of advanced digital networks."

Rep. Joe Barton (R-TX), the Chairman of the full Committee, attended part of the hearing. He did not speak, but submitted a statement for the record. He too was vague. He wrote that "First, we must not permit broadband or voice over Internet protocol (VOIP) services to become the communications medium of choice for terrorists because of the absence of electronic surveillance capabilities for law enforcement. Second, however, we must not stifle new technologies by burdening them with unachievable rules. And, third, we must protect consumer privacy."

Rep. Fred Upton (R-MI), the Chairman of the Subcommittee on Telecommunications and the Internet, presided. He read an opening statement. He said that "we must ensure that law enforcement has adequate access to digital communications, like broadband and VoIP."

Rep. Upton (at left) added that "the technological standards for providing such access are driven by industry, which is in a better position than the government to find workable ways to build the proverbial ``mouse trap´´ without stifling innovation in this relatively nascent and dynamic marketplace."

Rep. Greg Walden (R-OR) and Rep. John Shimkus (R-IL), both of whom represent districts with rural regions, expressed concerns about how new FCC rules might impact small rural carriers. Rep. Walden noted that the FCC proposes to impose new requirements on a carrier in his district that has not received a wiretap request in thirty years.

The FCC's Julius Knapp responded that the FCC has authority to grant carriers delays in coming into compliance. He also suggested that third party intercept management providers may be helpful.

Rep. Al Wynn (D-MD) raised the subject of the factual record. That is, the DOJ seeks new FCC rules expanding the scope of the CALEA without laying a factual record in support. The DOJ and FBI witnesses stated that they object to laying out a factual record in support of their requests. They cited two reasons. First, laying out a factual record would take time. Second, laying a factual record would have the effect of making information available to criminals and terrorists. However, they said that they would be willing to provide information to the Congress in some classified form.

At other points in the hearing the DOJ and FBI witness offered non-responsive or evasive answers to factual questions. For example, neither the DOJ petition, nor the prepared testimony of the DOJ and FBI witnesses, identified either non-compliant service providers, or non-cooperative providers. Rep. Upton asked them who is not compliant or not helpful. He received no responsive information. Parsky suggested that she could not answer because the DOJ needs to work with these companies.

Reps. Upton, Barton, Stearns, Walden, Buyer, Terry, Cox, Pickering, Shimkus were the Republican members who attended. Reps. Wynn, Stupak, and McCarthy were the Democratic members who attended.

9/8. Rep. Chip Pickering (R-MS), the Vice-Chairman of the House Commerce Committee, discussed the relationship between the Department of Justice's (DOJ) decision last month to petition the Supreme Court for writ of certiorari in the Brand X case, and the Federal Communications Commission's (FCC) decision last month to issue its notice of proposed rule making (NPRM) imposing Communications Assistance for Law Enforcement Act (CALEA) obligations upon broadband internet access services and voice over internet protocol (VOIP).

He suggested at a hearing held by the Subcommittee on Telecommunications and the Internet on September 8 that the DOJ leveraged its power in the Supreme Court certiorari process to obtain from the FCC the NPRM pertaining to CALEA. In this arrangement, the DOJ got the CALEA interpretation and rule making proceeding that it wanted, while the FCC majority got the petition for writ of certiorari in the Brand X case that it wanted. A witness for the Federal Bureau of Investigation (FBI) denied at the hearing that there was a quid pro quo.

Background on Brand X Case. 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." This item is FCC 02-77 in Docket No. 00-185 and Docket No. 02-52.

Treating broadband internet access providers, including cable modem service, as an information service is a critical part of FCC Chairman Michael Powell's strategy for promoting broadband deployment, competition, innovation, and the digital migration. He is supported by Republican Commissioners Kevin Martin and Kathleen Abernathy. If cable modem service were a telecommunications service, then it would be subject to the economic regulatory regime that applies to telecommunications services. (On the other hand, classifying broadband internet access services as telecommunications services could also subject these services to CALEA obligations, which apply to telecommunications carriers, and not to information services.)

On October 6, 2003, a three judge panel of the Court of Appeals issued its opinion [39 pages in PDF] (which is also published at 345 F.3d 1120) vacating the FCC's declaratory ruling. This opinion threatens to derail Chairman Powell's plans. See, 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; and story titled "Reaction to 9th Circuit Opinion in Brand X Internet Services v. FCC" in TLJ Daily E-Mail Alert No. 756, October 9, 2003.

However, to obtain Supreme Court review of the 9th Circuit decision, the FCC majority needed the support of the Office of the Solicitor General, which is a part of the DOJ.

The DOJ's strategy for fighting crime and terrorism includes expanding the scope of the CALEA to include broadband internet access, VOIP, and other information services and products. Yet, the CALEA gives authority to promulgate implementing rules to the FCC, not the DOJ. As a result, the DOJ needs the FCC's support to achieve its CALEA goals, the the FCC majority needs the DOJ's support to achieve its goals.

On September 1, 2004, the DOJ's Office of the Solicitor General (OSG) and the FCC filed a Petition for Writ of Certiorari [37 pages in PDF] with the U.S. Supreme Court in the Brand X case. See, story titled "Office of the Solicitor General Backs FCC in Brand X Case" in TLJ Daily E-Mail Alert No. 968, September 2, 2004.

September 8 Hearing. Rep. Pickering (at right) questioned witnesses about the Brand X case and the CALEA NPRM at the September 8 hearing. He first noted the sequence and proximity in time of the FCC's release of its NPRM (August 4), and the DOJ's decision to file a petition for writ of certiorari (September 1).

Rep. Pickering first questioned the Julius Knapp, the Deputy Chief of the FCC's Office of Engineering and Technology (OET), who was a witness at the hearing.

He asked Julius Knapp, "Was there an agreement between the Justice the FBI and the FCC to do so." Knapp answered, "No there wasn't." Rep. Pickering then asked, "Was there any discussion?" Knapp said, "No there wasn't." However, he added, "certainly we were aware that it was important for the Department of Justice and the FBI".

Rep. Pickering then asked Laura Parsky (a Deputy Assistant Attorney General in the DOJ's Criminal Division) and Marcus Thomas (Deputy Assistant Director of the FBI in charge of its Investigative Technology Division), "Was there any communication between the FCC, the FBI, and the Justice Department of Justice concerning the Solicitor General's appeal of the Ninth Circuit Court of Appeals decision?"

Parsky said this. "The Department of Justice has many components. The Solicitor General's Office is in the Department of Justice, Criminal Division, and FBI. We, in the Criminal Division, and the FBI, are concerned with CALEA, and with the provisions of CALEA, and with protecting law enforcement's equities in CALEA. So, to the extent that our concerns could in any way come into play, that is something that we obviously would be consulting within the Department of Justice on. And, we did. So, it was something that we weighed in on, but it was more to the extent that we were looking to make sure that if there were any possible implications on CALEA, that we look to those."

Thomas said that "we expressed our concerns regarding the impact" of court decisions. But, he asserted that "there was no discussion about a quid pro quo or anything like that."

Rep. Pickering concluded that "I am not saying that there was necessarily anything wrong about reaching an agreement between the Justice Department, the FBI and the FCC as to an appeal or not an appeal ... and trying to coordinate policy objectives to stimulate both, in our nation, investment, while at the same time meeting public safety and enforcement needs. So, I am not saying that this was anything inherently wrong. I just think that we should be transparent about it."

Rep. Pickering also spoke with reporters after the hearing. He said that this was "part of an interagency process to get multiple objectives met at the same time. The leverage point for Justice and the FBI was the 9th Circuit Court of Appeals. It was very important for the FCC -- telecom policy. For the FBI and Justice, CALEA is very important to them, and they leveraged it. And hopefully, both will get what they needed. But, I just thought that we should be upfront and honest about it."

He added that "There was no formalized agreement. But, I think that it is clear that you had an interagency process or communication. For the FCC, it was very important for them to have the Solicitor General appeal the decision of the Ninth Circuit. And, it was very important for the FBI and the Justice Department to have the FCC begin a CALEA proceeding. Both have now been done."

He also commented "It probably would be hard for them to come out and say that we are appealing this so that we can get CALEA, and not just address the merits of the underlying case. But, I do think that here you have a good example of an interagency process with competing objectives, that were reconciled and resolved in the manner in which it happened."

Prospects for Legislation in the 108th Congress. Rep. Pickering also spoke with reporters about legislation. He introduced HR 4129, the "VOIP Regulatory Freedom Act of 2004", in the House on April 2, 2004. See, story titled "Sununu and Pickering Introduce VOIP Regulatory Freedom Bills" and story titled "Summary of VOIP Regulatory Freedom Bills" in TLJ Daily E-Mail Alert No. 872, April 8, 2004.

His bill also addresses CALEA and surveillance. It contains a long and complex subsection creating statutory requirements for providers of "connected VOIP applications". It would require them to "ensure that its equipment, facilities, or services are capable of ... enabling the government to intercept communications transmitted using such application ... delivering such intercepted communications and call-identifying information to the government".

(His bill defines a "connected VOIP application" as "a VOIP application that is capable of receiving voice communications from or sending voice communications to the public switched telephone network, or both.")

The Pickering bill does not expand the CALEA to include connected VOIP applications. Rather, it creates a new requirement, with a separate statutory basis. But, in the end, it makes the requirements imposed on providers of connected VOIP applications similar to the requirements imposed by the CALEA upon telecommunications carriers.

Rep. Pickering was asked about the prospects for passing legislation in the current Congress. He said that "if we go forward, I plan to drop the provision that relates to CALEA, to keep it as simple and as clean as possible. Let the FCC do its job."

He added that "I think that there is still a chance of a clean narrow production, that does not get into any other issues, and keeps a narrow focus". He concluded that "a decision will be made within the next two weeks" as to whether there will be a mark up.

The Senate Commerce Committee passed a VOIP related bill on July 22, 2004. See, story titled "Senate Commerce Committee Passes VOIP Regulation Bill" and story titled "Summary of VOIP Bills" in TLJ Daily E-Mail Alert No. 946, July 27, 2004.

8:00 AM - 5:30 PM. The George Mason School of Law's (GMULS) Journal of Law, Economics and Policy will host a one day symposium titled "The Economics of Self Help and Self Defense in Cyberspace". See, event brochure [PDF]. The event is free, but requires pre-registration. Location: GMUSL, 3301 Fairfax Drive, Arlington, VA.

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). See, paper [74 pages in PDF] titled "A Horizontal Leap Forward: Formulating A New Public Policy Framework Based On The Network Layers Model" by Rick Whitt; paper titled "A Layered Model for Internet Policy" by Kevin Werbach; and paper [19 pages in PDF] titled "From Consumers to Users: Shifting the Deeper Structures of Regulation Toward Sustainable Commons and User Access" by Yochai Benker. The event is free. Breakfast will be served. Location: PPI, 600 Pennsylvania Ave., SE, Suite 400.

POSTPONED TO SEPTEMBER 16. 12:00 NOON. Dane Snowden, Chief of the Federal Communications Commission's (FCC) Consumer & Governmental Affairs Bureau, will hold a press briefing. RSVP to Rosemary Kimball at 202 418-0511 or rosemary.kimball@fcc.gov. Location: FCC, 445 12th St., SW, Hearing Room B/Conference Room, TW A-402/A-442.

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.

9:00 AM - 5:30 PM. Day one of a two day workshop cosponsored by the Federal Trade Commission (FTC) and the Georgetown Journal of Legal Ethics titled "Protecting Consumer Interests in Class Actions". See, FTC notice. Press contact: Claudia Farrell at 202 326-2181. Staff contact: John Delacourt (Office of Policy Planning) at 202 326-3754. Location: ___.

9:30 AM. The House Commerce Committee's Subcommittee on Telecommunications and the Internet will hold a hearing titled "The Effect of Television Violence on Children: What Policymakers Need to Know". See, notice of hearing. This hearing will be held in Chicago, Illinois, but will also be webcast by the Committee.

TIME CHANGE. 9:30 AM. The Senate Judiciary Committee's Subcommittee on Terrorism, Technology and Homeland Security will hold a hearing titled "A Review of the Tools to Fight Terrorism Act". Sen. Jon Kyl (R-AZ) will preside. Press contact: Margarita Tapia at 202 224-5225. Location: Room 226, Dirksen Building.

2:00 PM. The U.S. Court of Appeals (DCCir) will hear oral argument in Delta Radio Inc v. FCC, No. 03-1295 Location: Courtroom __, Prettyman Courthouse, 333 Constitution Ave., NW.

Deadline to submit comments to the Library of Congress in response to its notice of proposed rulemaking (NPRM) regarding continuation, with a few modifications, of the procedures adopted by the Copyright Office in 1995 that permit copyright applicants to request reconsideration of decisions to refuse registration. See, notice in the Federal Register, July 13, 2004, Vol. 69, No. 133, at Pages 42004-42007.

Deadline to submit comments to the Federal Trade Commission (FCC) in response to its notice of proposed rulemaking (NPRM) to implement the Controlling the Assault of Non-Solicited Pormography and Marketing Act of 2003 (CAN-SPAM Act). See, notice in the Federal Register, August 13, 2004, Vol. 69, No. 156, at Pages 50091 - 50107. There is no reply comment period.

9:00 AM - 12:15 PM. Day two of a two day workshop cosponsored by the Federal Trade Commission (FTC) and the Georgetown Journal of Legal Ethics titled "Protecting Consumer Interests in Class Actions". See, FTC notice. Press contact: Claudia Farrell at 202 326-2181. Staff contact: John Delacourt (Office of Policy Planning) at 202 326-3754.

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.

9:30 AM - 5:00 PM. The Federal Communications Commission's (FCC) North American Numbering Council will meet. See, notice and agenda [PDF]. Location: FCC, 445 12th Street, SW, Room TW-C305 (Commission Meeting Room).

10:00 AM. The Senate Intelligence Committee will hold a hearings to examine the nomination of Porter Goss to be Director of Central Intelligence. Location: Room 562, Dirksen Building.

6:00 - 8:15 PM. The Federal Communications Bar Association's (FCBA) Mass Media Practice Committee will host a continuing legal education (CLE) seminar titled "Ownership Rules of the Federal Communications Commission". The speakers will include Erin Dozier (Special Advisor for Media Ownership in the FCC's Media Bureau), Jerianne Timmerman (National Association of Broadcasters), Anita Wallgren (Sidley Austin), Brian Madden (Leventhal Senter & Lerman), and Greg Schmidt (LIN Television). Prices to attend vary. See, notice. Location: Dow Lohnes & Albertson, 8th Floor, 1200 New Hampshire Ave., NW.

12:15 PM. The Federal Communications Bar Association's (FCBA) Cable Practice Committee will host a brown bag lunch. The topics will be the FCC's Fall agenda and potential subjects for future meetings. The speakers will be Catherine Bohigian (Legal Advisor on Media Issues for FCC Commissioner Kevin Martin), Frank Lloyd (Mintz Levin), an To-Quyen Truong (Dow Lohnes & Albertson). RSVP to To-Quyen Truong at ttruong@dowlohnes.com. Location: Dow Lohnes & Albertson, 1200 New Hampshire Ave., NW, 8th floor.

The Federal Communications Commission (FCC) will conduct Auction No. 57, an auction of licenses in the Automated Maritime Telecommunications System (AMTS') spectrum. See, notice in the Federal Register, June 25, 2004, Vol. 69, No. 122, at Pages 35614 - 35626.

Deadline to submit written comments to 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). See, notice in the Federal Register, July 29, 2004, Vol. 69, No. 145, at Pages 45369 - 45370.

EXTENDED TO OCTOBER 15. Deadline to submit comments to the Federal Communications Commission (FCC) 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." 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. See, Order [PDF] extending the deadlines.

Rosh Hashanah.

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in Polygram Hold Inc v. FTC, No. 03-1293. The Federal Trade Commission (FTC) filed its administrative complaint against Polygram and others on July 30, 2001 alleging unfair methods of competition in violation of Section 5 of the FTC Act by agreeing with competitor Warner Communications to restrict price competition and forgo advertising, in connection with the sale of audio and video recordings titled "Three Tenors". The FTC issued its order [8 pages in PDF] and the opinion [61 pages in PDF] of Chairman Timothy Muris on July 24, 2003, finding that the agreement between PolyGram and Warner unreasonably restrained trade and constitutes an unfair method of competition. Judges Ginsburg, Edwards and Rogers will preside. Location: Courtroom __, Prettyman Courthouse, 333 Constitution Ave., NW.

RESCHEDULED FROM SEPTEMBER 10. 10:30 AM. Dane Snowden, Chief of the Federal Communications Commission's (FCC) Consumer & Governmental Affairs Bureau, will hold a press briefing. RSVP to Rosemary Kimball at 202 418-0511 or rosemary.kimball@fcc.gov. Location: FCC, 445 12th St., SW, Hearing Room B/Conference Room, TW A-402/A-442.

Deadline for the President to submit a report to the Congress on the establishment and operation of the Terrorist Screening Center, established on September 16, 2003, by Homeland Security Presidential Directive/Hspd-6. This report is required by Section 360 of HR 2417, the "Intelligence Authorization Act for Fiscal Year 2004". See, story titled "Bush Signs Intelligence Authorization Bill" in TLJ Daily E-Mail Alert No. 799, December 15, 2003.

Deadline to submit comments to the Federal Communications Commission (FCC) in response to its notice of proposed rulemaking (NPRM) regarding Amateur Radio Service rules. The FCC adopted this NPRM on March 31, 2004, and released it on April 15, 2004. This NPRM is FCC 04-79 in WT Docket No. 04-140. See, notice in the Federal Register, August 17, 2004, Vol. 69, No. 158, at Pages 51028 - 51034.

Deadline to submit comments to the Federal Communications Commission (FCC) in response to the Wireline Competition Bureau's (WCB) public notice inviting interested parties to update the record pertaining to petitions for reconsideration of the 1997 Price Cap Review Order. This is in CC Docket Nos. 94-1 and 96-262. See, notice [PDF].

11:00 AM. Jessica Litman (Wayne State University Law School) will present a paper titled "Sharing and Stealing" [47 pages in PDF] at an event hosted by the Dean Dinwoodey Center for Intellectual Property Studies at the George Washington University Law School (GWULS). For more information, contact Robert Brauneis at 202 994-6138 or rbraun@law.gwu.edu. The event is free and open to the public. See, notice. Location: GWULS, Faculty Conference Center, Burns Building, 5th Floor, 716 20th Street, NW.

9/9. The U.S. Court of Appeals (3rdCir) issued its opinion [28 pages in PDF] in Citizens Financial Group v. Citizens National Bank of Evans City, a trademark dispute between financial institutions using the name "Citizens". This case is Citizens Financial Group, Inc. v. Citizens National Bank of Evans City and Citizens National Bank of Southern Pennsylvania, U.S. Court of Appeals for the 3rd Circuit, App. Ct. No. 03-2868 and 03-3175, an appeal from the U.S. District Court for the Western District of Pennsylvania, D.C. No.: 01-cv-01524. Judge Rosenn wrote the opinion of the Court of Appeals, in which Judges Scirica and Greenberg joined.

9/9. The U.S. Court of Appeals (9thCir) issued its opinion [14 pages in PDF] in Jerry's Famous Deli v. Papanicolaou, a trademark case involving two restaurants that employ similar themes. The District Court found Papanicolaou in civil contempt for violation of a stipulated injunction governing trademark use. The Court of Appeals affirmed this finding, but vacated and remanded a disgorgement of profits sanction. This case is Jerry's Famous Deli, Inc. v. Constantino Papanicolaou, U.S. Court of Appeals for the 9th Circuit, App. Ct. No. 03-56019, an appeal from the U.S. District Court for the Central District of California, D.C. No. CV-97-01765-RMT, Judge Robert Takasugi presiding. Judge Margaret McKeown wrote the opinion of the Appeals Court, in which Judges Jay Bybee and Charles Breyer joined.

9/3. The U.S. Court of Appeals (9thCir) issued its opinion [36 pages in PDF] in Polar Bear Production v. Timex, a copyright case and trademark case, in which the Court addressed damages and interest. This case is Polar Bear Production, Inc. v. Timex Corporation, U.S. Court of Appeals for the 9th Circuit, App. Ct. Nos. 03-35188 and 03-35245, appeals from the U.S. District Court for the District of Montana, D.C. No. CV-00-00141-SEH, Judge Sam Haddon presiding. Judge Margaret McKeown wrote the opinion of the Court, in which Judges Melvin Brunetti and Ronald Gould joined.

8/30. The U.S. Court of Appeals (11thCir) issued its opinion [23 pages in PDF] in AT&T Broadband v. Tech Communications, holding that the Cable Communications Policy Act (CCPA), which is codified at 47 U.S.C. § 553, empowers the District Court to issue an ex parte order authorizing a freeze of assets or a search and seizure of property belonging to an alleged violator. Subsection (c)(2)(A) provides that "The court may ... grant temporary and final injunctions on such terms as it may deem reasonable to prevent or restrain violations of subsection (a)(1) of this section".

9/8. The Information Technology Association of America (ITAA) has offered for sale a report titled "Adding Value ... Growing Careers: The Employment Outlook in Today's Increasingly Competitive IT Job Market". See, release summarizing report.

9/8. The Department of Commerce's Technology Administration (TA) released a report titled "Science and Technology Policy Infrastructure Guidelines and References, Version 1.0, August 2004". See, Section I [PDF] and Section II [PDF].

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