2/24. The U.S. Court of Appeals (6thCir) issued its opinion [PDF] in Wireless Income Properties v. Chattanooga, a case regarding the construction of wireless communications towers, and the often litigated applicable section of the Communications Act, 47 U.S.C. § 332(c)(7). The Appeals Court also held that a violation of § 332 gives rise to an action for violation of 42 U.S.C. § 1983.

Wireless Income Properties (WIP) builds communications towers. It filed applications for building permits with the City of Chattanooga. The city then passed, and then extended, an ordinance imposing a moratorium on the issuance of building permits for new towers. It then passed an ordinance that repealed the moratorium, but rendered WIP's applications defective.

WIP filed a complaint in U.S. District Court (EDTenn) against the city and its administrator alleging violation of 47 U.S.C. § 332(c)(7)(B), which limits states' authority to regulate the placement, construction and modification of personal wireless service towers, and 42 U.S.C. § 1983, which provides a civil action for damages for deprivation of federal rights by states.

Section 332. § 332 provides in part that "The regulation of the placement, construction, and modification of personal wireless service facilities by any State or local government or instrumentality thereof--
  (I) shall not unreasonably discriminate among providers of functionally equivalent services; and
  (II) shall not prohibit or have the effect of prohibiting the provision of personal wireless services."

The District Court ordered the city to act on WIP's pending applications within sixty days.

The Appeals Court reversed. It wrote that "Were we to affirm the district court's order giving the City sixty days to act upon the permit applications, we would subject the parties to further litigation. On remand the City would inevitably again reject Wireless's applications, albeit likely in a formal written decision. ... Wireless would then challenge this decision in federal court. Given the Congressional intent embodied in the TCA to avoid multiple rounds of litigation, we conclude that the proper remedy in this case is injunctive relief compelling the City to grant Wireless's permit applications."

Section 1983 and the Communications Act. § 1983 provides, in part, that "Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress ..."

Nothing in § 332, or elsewhere in the Communications Act, forecloses a § 1983 action based upon a state violation of rights granted by § 332. Also, § 332 provides for injunctive relief. § 1983 allows the recovery of monetary damages.

The District Court held that the remedy provided by § 1983 is not available for violations of the Communications Act. The Court of Appeals reversed. It reasoned that § 332 demonstrates by its insufficient remedial scheme that the Congress did not intend to preclude a § 1983 remedy.

Various circuits have reached different on this issue. For example, the U.S. Court of Appeals (3rdCir) held in Nextel Partners Inc. v. Kingston Township that there is no § 1983 remedy. The opinion in this case is reported at 286 F.3d 687. In contrast, the U.S. Court of Appeals (9thCir) held in City of Rancho Palos Verdes v. Abrams that there is a § 1983 remedy. See, 354 F.3d 1094.

The Supreme Court has granted certiorari in City of Rancho Palos Verdes. It heard oral argument on January 19, 2005. See, Supreme Court calendar. That proceeding is Sup. Ct. No. 03-1601. Hence, the conclusion of the Court of Appeals in the present case may not long be the rule in the 6th Circuit.

The Solicitor General weighed in on the side of state and local governments. It wrote in its amicus curiae brief that "Determining whether an alleged violation of a federal statute gives rise to a Section 1983 action generally involves a two-part inquiry. The court must first ask whether the plaintiff has shown that the statutory provision in question gives rise to a federal right. Where the existence of a federal right is established, Section 1983 is unvailable upon a showing that Congress either expressly shut the door to private enforcement or impliedly created a comprehensive remedial scheme that is incompatible with enforcement under Section 1983."

It then argued that "Section 332(c)(7)'s scheme is comprehensive in that it permits aggrieved persons to bring suit and obtain meaningful judicial relief for violations of the statutory requirements at issue in a way that is specifically targeted to the relevant context. A statutory scheme need not be complex in order to be sufficiently comprehensive to reflect an intent to foreclose resort to Section 1983. If a statute expressly creates a cause of action that provides for meaningful relief, it is "comprehensive" in the relevant sense."

This case is State of Tennessee ex rel Wireless Income Properties, LLC v. City of Chattanooga and William MacDonald, App. Ct. No. 03-6608, an appeal from the U.S. District Court for the Eastern District of Tennessee at Chattanooga, D.C. No. 02-00372, Judge Allan Edgar presiding. Judge Moore wrote the opinion of the Court of Appeals, in which Judges Siler and Cole joined.

2/24. The U.S. Court of Appeals (5thCir) issued its opinion [10 pages in PDF] in Dial One of the Mid-South v. BellSouth, a Lanham Act case regarding erroneous address listings in a telephone company's directories. At issue are what claims are capped by limitations in BellSouth's state tariff filings, and which claims are not capped, due to federal preemption by the Lanham Act.

Dial One of the Mid-South (Dial One) is a franchisee of Dial One of Indiana. Bell South publishes and distributes telephone directories. These directories have frequently contained erroneous listings for Dial One. In the present action, Dial One filed a complaint in U.S. District Court (EDLa) against BellSouth, and its publishing subsidiary, alleging federal and state trademark infringement, unfair competition, and violations of Louisiana Civil Code Article 2315 for the intentional publication of false information.

The District Court awarded Dial One $31,500 in damages for violation of the federal trademark statute with respect to the certain errors, and an additional $3000 in damages for six other BellSouth errors, which are tariff capped at $500 each.

The Court of Appeals largely affirmed the District Court.

This case is Dial One of the Mid-South, Inc. v. BellSouth Telecommunications, Inc., et al., App. Ct. No. 03-31132, an appeal from the U.S. District Court for the Eastern District of Louisiana.

2/24. U.S. President Bush and Russian President Putin held a joint news conference in Bratislava, Slovakia, at which they discussed negotiations over Russia's accession to the World Trade Organization (WTO). Bush said that "We agreed to accelerate negotiations for Russia's entry into the WTO."

Putin said that "We have paid great attention to economic cooperation including, as has already been said, the possible accession of Russia to the WTO. We have reaffirmed our intention to continue our search for mutually acceptable solutions of the outstanding problems. Russia is ready for a reasonable compromise, but this compromise should not go beyond the usual responsibilities assumed by countries acceding to the WTO."

"I'm sure that not only Russian economy, but also the U.S. economy are interested in the positive outcome." Putin added that "We have also discussed the status and prospects of Russia's cooperation in science, high-tech; in particular, in the exploration of outer space."

The U.S. and Russia also issued a brief joint statement regarding their negotiations that references intellectual property rights. They wrote that the two nations "are committed to working together to complete our bilateral negotiations for Russia's accession".

"The results of the negotiations will enhance commercial opportunities between our two countries, support economic reforms that Russia has made a priority, and further integrate Russia into the world economy. Our trade ministers have made progress in pursuing our bilateral negotiations, and we have instructed them to accelerate these efforts."

The statement adds that "Russia and the United States will continue to work closely in bilateral and multilateral negotiations to resolve remaining issues in ways that benefit both countries. The rules-based system of the WTO will further strengthen our economic relationship in all areas, including agriculture, manufacturing, services, and the improved protection and enforcement of intellectual property rights."

It concludes that "We will work to identify areas for progress in our bilateral negotiations that will give momentum to Russia's accession to the WTO and to Russia's economic reform program."

2/24. Peter Mandelson, the European Commission for Trade, gave a speech in Beijing, China, in which he discussed intellectual property, and other trade issues.

He said that "the Chinese market offers a huge opportunity for European companies. China is a voracious consumer of European goods, technology and services. China is also a competitor in many areas -- but competition, provided it is fair competition, is a good thing."

Mandelson (at right) continued, "But here is the caveat. If we are to build a stronger partnership, I believe Europeans need to have a clearer sense that China is assuming the responsibilities that accompany its new power within the global community. As we all learn in life, the greater our power the greater our responsibility."

He said that China can demonstrate responsibility and leadership in Doha Development Agenda negotiations, and in strengthening and enforcing intellectual property rights.

He argued that "China has an overwhelming interest in strengthening a rules based trading system. Those rules are already working in China's favour and they will continue to do so in the years ahead. In the Doha Round we need to deliver a better global environment for trade which will reinforce the WTO and its rules of opportunity across the globe."

Mandelson then alluded the Winton Churchill's November 10, 1942 speech about El Alamein being the "end of the beginning". Mandelson said that "I do wish to say today that your membership of the WTO was neither the end, nor the beginning of the end. It was the end of a beginning which has already brought you many advantages as foreign investment keeps pouring in and your economy continues to surge forward. So although I recognise the particular status of China as a ``recently acceded´´ WTO Member, we are looking to you to contribute again."

He then discussed intellectual property. "To put the Doha Round back in motion we need to move urgently to construct a balanced package covering agriculture, trade in industrial goods, and trade in services. And alongside this we need to strengthen the rules governing intellectual property and the use of anti-dumping measures."

Mandelson continued that "China has made remarkable progress in bringing its legislation on intellectual property up to date. But in many ways that is only the beginning. The real test is when you start to enforce intellectual property rights vigorously throughout the country. I wish to work with China urgently on this, to promote better enforcement. It is in your interest too, because you are fast becoming an innovation-based society and you want to attract more foreign technology. You cannot have the one without the other."

He added that "Other areas we need to work on together include liberalising the banking sector, strengthening accountancy standards and property rights more generally, and corporate governance. In some areas industrial policies continue to give undue privileges to domestic companies."

2/22. President Bush and others held a news conference in Brussels, Belgium on Tuesday, February 22, 2005, at which they discussed, among other topics, trade. Jose Manuel Barrosa, President of the EC, stated that "The United States and Europe are the two largest economies in the world. We are determined to deepen the transatlantic economic partnership. Trade and investment are the bedrock of transatlantic relations. We want to build on this. Our common objective must be to remove obstacles to transatlantic trade and investment, as well as making a success of Doha development round, which is a catalyst for global growth. Europe is committed to promote growth and jobs, through knowledge, innovation and opportunity. That is what the Lisbon agenda stands for." See, transcript [4 pages in PDF].

2/24. The U.S. Court of Appeals (2ndCir) issued its opinion [PDF] in Cubatabaco v. Culbro, a trademark infringement case brought under Section 43(a) of the Lanham Act. The U.S. District Court (SDNY) held that Empresa Cubana del Tabaco (Cubatabaco), a Cuban company, owned the U.S. trademark COHIBA for use on cigars under the famous marks doctrine. The Court of Appeals reversed. It wrote that "even were the famous marks doctrine to be recognized -- an issue we do not decide here -- Cubatabaco is barred by the United States’ embargo in force against Cuba from acquiring property rights in United States trademarks via the famous marks doctrine". This case is Empresa Cubana del Tabaco v. Culbro Corporation, et al., App. Ct. Nos. 04-2527-cv (L) and 04-3005-cv (XAP), appeals from the U.S. District Court for the Southern District of New York.

2/25. Dane Snowden will become VP, Strategic Relations at the Cellular Telecommunications and Internet Association (CTIA). He is currently Chief of the Federal Communications Commission's (FCC) Consumer & Governmental Affairs Bureau. See, CTIA release.

2/22. Amy Levine was named Legislative Council to Rep. Rick Boucher (D-VA), a senior member of the House Commerce Committee, and its Subcommittee on Telecommunications and the Internet, and the House Judiciary Committee, and its Subcommittee on Courts, the Internet and Intellectual Property. She previously worked for the law firm of Covington & Burling.

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The House will not meet. It will return from its Presidents Day recess on Tuesday, March 1, at 2:00 PM. See, Republican Whip notice.

The Senate will return from its Presidents Day recess at 2:00 PM. It will take up S 256, the "Bankruptcy Abuse Prevention and Consumer Protection Act of 2005". See, Senate calendar.

10:45 AM. America Online and the IKeepSafe Coalition will host a news conference. For more information, contact Andrew Weinstein at 703 597-6175. Location: Lisagor Room, National Press Club, 529 14th St. NW, 13th Floor.

12:00 NOON. Attorney General Alberto Gonzales will speak at a Heritage Foundation event. Press contact: Angela Williamson at 202-305-5126. Location: Willard Ballroom, Willard Intercontinental Hotel, 1401 Pennsylvania Ave., NW.

1:00 - 4:00 PM. The Department of Homeland Security (DHS) and the Department of Justice (DOJ) will host a briefing on the Global Justice Extensible Markup Language (XML) Data Model (Global JXDM). The speakers will be Tracy Henke (acting Assistant Attorney General for the Office of Justice Programs), Van Hitch (CIO of the DOJ), Steve Cooper (CIO of the DHS), and Domingo Herraiz (Director of the Bureau of Justice Assistance). For more information, contact Sheila Jerusalem (DOJ) at 202 307-0703 or Larry Orluski 202 205-5864. Location: Marriott Crystal Gateway, 1700 Jefferson Davis Highway, Arlington VA.

2:00 - 3:00 PM. The National Science Foundation (NDF) will host a lecture titled "What's New in Nanoscale Structures: Fluctuations and Entropy". The speaker will be Ellen Williams (Professor of Physics at the University of Maryland). See, NSF schedule of public events. Location: NSF, 4201 Wilson Blvd., Room 375, Arlington, VA.

2:30 PM. Under Secretary of Homeland Security Asa Hutchinson will deliver the keynote address at a U.S. Chamber of Commerce event. Location: U.S. Chamber, 1615 H St., NW.

6:00 - 8:15 PM. The DC Bar Association will host a continuing legal education (CLE) program titled "What You Need to Know About the Digital Millennium Copyright Act and Its Application". The speakers will be Peter Jaszi (American University Washington College of Law), Robert Kasunic (U.S. Copyright Office, invited), Stacey King (Howrey Simon), and Alan Lewine (Litman Law Office, invited). See, notice. Prices vary from $70 to $115. For more information, call 202 626-3488. Location: D.C. Bar Conference Center, B-1 Level, 1250 H St., NW.

Extended deadline to submit comments to the Internet Corporation for Assigned Names and Numbers (ICANN) regarding its three year Strategic Plan [73 pages in PDF]. See, ICANN's November 16, 2004 notice setting January 15 deadline. See also, ICANN's web page with information about the Strategic Plan.

Deadline for the submission of DART claims for 2004 DART royalty funds to the Copyright Office. See, notice in the Federal Register, November 29, 2004, Vol. 69, No. 228, at Pages 69288 - 69290.

Deadline to submit initial comments to the Federal Communications Commission (FCC) regarding the progress made by the states in implementing E911 solutions for multi-line telephone systems (MLTSs). See, notice in the Federal Register, January 13, 2005, Vol. 70, No. 9, at Pages 2405 - 2406.

Deadline to submit comments to the National Institute of Standards and Technology (NIST) regarding new or revised requirements for Federal Information Processing Standard (FIPS) 140-3, which pertains to security for cryptographic modules that are utilized by federal agencies. See, notice in the Federal Register, January 12, 2005, Vol. 70, No. 8, at Pages 2122 - 2123.

The House will return from its Presidents Day recess at 2:00 PM. It will consider several non-technology related items under suspension of the rules. Votes will be postponed until 6:30 PM. See, Republican Whip notice.

9:30 AM. The Senate Judiciary Committee will hold a hearing on judicial nominations. Sen. Arlen Specter (R-PA) will preside. Press contact: Blain Rethmeier (Specter) at 202 224-5225, or Tracy Schmaler (Leahy) at 202 224-2154. Location: Room 226, Dirksen Building.

10:00 AM. The House Appropriations Committee's Subcommittee on Science, State, Justice, and Commerce, and Related Agencies will hold a hearing. Attorney General Alberto Gonzales will testify. The hearing will be webcast. Location: Room 2359, Rayburn Building.

2:00 PM. Public Knowledge will hold a news conference regarding the filing of briefs in MGM v. Grokster, a copyright case regarding P2P systems. The Supreme Court will hear oral argument on March 29. The speakers will be Fred von Lohmann (counsel for Streamcast), Mike Weiss (CEO of Streamcast), Michael Page (attorney for Grokster), Gigi Sohn (Public Knowledge), Mark Cooper (Consumer Federation of America), Gary Shapiro (Consumer Electronics Association), Ed Black (Computer and Communications Industry Association), and Deirdre Mulligan (UC Berkley Law School). For more information, contact Art Brodsky at 202 518-0020 ext 103. Location: 1875 Connecticut Ave., NW, Suite 650.

Deadline to submit comments to the Federal Communications Commission (FCC) in response to its Report and Order and Further Notice of Proposed Rulemaking (FNPRM) [54 pages in PDF] regarding the children's programming obligations of digital television broadcasters. This item is FCC 04-221 in MM Docket 00-167. See, story titled "FCC Adopts Report and Order Re Children's Programming Obligations of DTV Broadcasters" in TLJ Daily E-Mail Alert No. 975, September 13, 2004.

Deadline to submit initial comments to the Federal Communications Commission (FCC) to assist it in preparing the report required by Section 208 of the Satellite Home Viewer Extension and Reauthorization Act of 2004 (SHVERA). The SHVERA requires the FCC to "complete an inquiry regarding the impact on competition in the multichannel video programming distribution market of the current retransmission consent, network nonduplication, syndicated exclusivity, and sports blackout rules, including the impact of those rules on the ability of rural cable operators to compete with direct broadcast satellite industry in the provision of digital broadcast television signals to consumers. Such report shall include such recommendations for changes in any statutory provisions relating to such rules as the Commission deems appropriate." See, FCC notice [4 pages in PDF]. This Public Notice is DA 05-169. See also, notice in the Federal Register, February 8, 2005, Vol. 70, No. 25, at Pages 6593-6595.

The House will meet at 10:00 AM for legislative business. It will consider several non-technology related items under suspension of the rules. See, Republican Whip notice.

10:00 AM. The House Commerce Committee's Subcommittee on Telecommunications and the Internet will hold a hearing titled "Competition in the Communications Marketplace: How Technology Is Changing the Structure of the Industry". See, notice. The hearing will be webcast by the Committee. Press contact: Jon Tripp (Barton) at 202 225-5735 or Sean Bonyun (Upton) at 202 225-3761. Location: Room 2123, Rayburn Building.

TIME? The House Homeland Security Committee's (HHSC) Subcommittee on Economic Security, Infrastructure Protection, and Cybersecurity will hold a hearing on the President's FY 2006 budget request. Deborah Spero, Deputy Commissioner of the U.S. Customs and Border Protection (CBP), Jim Williams, Director of the DHS's US-VISIT program, and Carol DiBattiste, Deputy Administrator of the Transportation Security Administration (TSA) will testify. The HHSC states that this hearing is at 2:00 PM. The DHS states that it is at 2:00 PM. Location: Room 2325, Rayburn Building.

10:30 AM. The Senate Appropriations Committee's Subcommittee on Homeland Security will hold a hearing on the President's FY 2006 budget request for (1) states, citizenship and immigration services, (2) customs and border protection, and (3) immigration and customs enforcement. The witnesses will be Robert Bonner, Commissioner of U.S. Customs and Border Protection, Michael Garcia, Assistant Secretary, Immigration and Customs Enforcement, and Eduardo Aguirre, Director, U.S. Citizenship and Immigration Services. Location: Room 138, Dirksen Building.

2:00 PM. The House Appropriations Committee's Subcommittee on Science, State, Justice, and Commerce, and Related Agencies will hold a hearing on the President's FY 2006 budget request. Secretary of Commerce Carlos Guitierrez will testify. The hearing will be webcast. Location: Room 2358, Rayburn Building.

2:00 PM. The House Appropriations Committee's Subcommittee on Homeland Security will hold a hearing on the President's FY 2006 budget request. Secretary Michael Chertoff will testify. The hearing will be webcast. Location: Room 2359, Rayburn Building.

2:00 - 4:00 PM. The Department of State's International Telecommunication Advisory Committee (ITAC) will meet to prepare for the International Telecommunications Union's (ITU) Telecommunication Standardization Advisory Group (TSAG) meeting. See, the ITU's calendar of meetings. See, notice in the Federal Register, December 20, 2004, Vol. 69, No. 243, at Page 76027. For more information, including the location, contact Julian Minard at minardje@state.gov. Location: undisclosed.

Day one of a three convention hosted by the Center for Homeland and Global Security titled "4th Annual Homeland and Global Security Summit". Charles McQuery, Under Secretary of Homeland Security, will speak at 1:15 PM. Stewart Verdery, Assistant Secretary Secretary of Homeland Security, will speak at 1:40 PM. See, notice. Location: Washington Convention Center.

The House will meet at 10:00 AM for legislative business. It will consider several non-technology related items under suspension of the rules. See, Republican Whip notice.

8:30 AM - 4:00 PM. The Executive Office of the President's (EOP) Office of Science and Technology Policy's (OSTP) National Science and Technology Council's (NSTC) Manufacturing Research and Development Interagency Working Group (IWG) will hold a one day public forum on manufacturing research and development in nanomanufacturing, manufacturing for the hydrogen economy, and intelligent and integrated manufacturing systems. See, notice in the Federal Register, February 1, 2005, Vol. 70, No. 20, at Page 5181. Location: auditorium, Department of Commerce, 1401 Constitution Ave., NW.

9:30 AM. The Senate Judiciary Committee will hold an executive business meeting. Press contact: Blain Rethmeier (Specter) at 202 224-5225, David Carle (Leahy) at 202 224-4242 or Tracy Schmaler (Leahy) at 202 224-2154. Location: Room 226, Dirksen Building.

3:00 PM. The House Armed Services Committee's Subcommittee on Terrorism, Unconventional Threats and Capabilities will hold a hearing the Fiscal Year 2006 national defense authorization budget request on tactical command, control, communications, and computer (C-4) systems. The hearing is titled "Why Does the DoD Have So Many Different Systems Performing the Same Functionally?". The witnesses will be Linton Wells (Acting Assistant Secretary of Defense for Networks and Information Integration), Vice Admiral R.F. Willard (U.S. Navy, Director for Force Structure, Resources and Assessment), Lt. Gen. Robert Shea (U.S. Marine Corps, Director for Command, Control, Communications and Computer Systems), and Lt. Gen. Robert Wagner (U.S. Army, Deputy Commander, United States Forces Command). Location: Room 2212, Rayburn Building.

2:30 PM. The Senate Judiciary Committee will hold a hearing on judicial nominees. Sen. Arlen Specter (R-PA) will preside. Press contact: Blain Rethmeier (Specter) at 202 224-5225, David Carle (Leahy) at 202 224-4242 or Tracy Schmaler (Leahy) at 202 224-2154. Location: Room 226, Dirksen Building.

4:00 PM. David Nimmer (Irell & Manella) will present a draft paper titled "Codifying Copyright Comprehensively". See, notice of event. This event is part of the Spring 2005 Intellectual Property Workshop Series sponsored 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 at law dot gwu dot edu. The event is free and open to the public. Location: GWULS, Faculty Conference Center, Burns Building, 5th Floor, 716 20th St., NW.

TIME? There will be a meeting of the Executive Office of the President's (EOP) Office of Science and Technology Policy's (OSTP) National Science and Technology Council's (NSTC) Committee on Science's Subcommittee on Research Business Methods. The meeting is closed to the public. For more information, contact Megan Columbus at 301 435-0937. Location: undisclosed.

6:00 - 8:00 PM. The Federal Communications Bar Association (FCBA) will host an event titled "FCBA Biennial Congressional Reception". The price to attend ranges from $25 to $75. See, registration form [PDF]. Location: Room HC-5, Capitol Building.

Day two of a three convention hosted by the Center for Homeland and Global Security titled "4th Annual Homeland and Global Security Summit". See, notice. Location: Washington Convention Center.

Deadline to submit reply comments to the Federal Communications Commission (FCC) regarding BellSouth's and Sprint's petition for reconsideration of the FCC's schools and libraries Fifth Report and Order. The FCC adopted this 5th R&O at its August 4, 2004 meeting, and released it on August 13, 2004. See, FCC Public Notice (DA 05-103). This 5th R&O is FCC 04-190 in CC Docket No. 02-6.

Day three of a three convention hosted by the Center for Homeland and Global Security titled "4th Annual Homeland and Global Security Summit". See, notice. Location: Washington Convention Center.

Deadline to submit reply comments to the Federal Communications Commission (FCC) regarding Qualcomm's Petition for Declaratory Ruling seeking clarification of rules and the establishment of a streamlined review process to accelerate the deployment of new services in the 700 MHz band. See, FCC Public Notice (DA 05-87). This proceeding is WT Docket No. 05-7.

Deadline to submit comments to Institute for Defense Analyses (IDA) in response to the Department of Defense's (DOC) and Department of Homeland Security's (DHS) National Cyber Security Division's (NCSD) request for public comments regarding the National Information Assurance Partnership (NIAP) and security flaws in commercial software products. See, notice in the Federal Register, February 2, 2005, Vol. 70, No. 21, at Page 5420.