12/28. The National Telecommunications and Information Administration (NTIA) released spreadsheets [PDF] that contain its estimates of the costs of relocating incumbent federal users out of the 1710-1755 MHz spectrum band.

The NTIA estimates that the total cost will be $935,940,312. It stated in a release [PDF] that the cost estimates for the 1710-1755 MHz band "are far less than previous wireless industry estimates".

This band, and the 2110-2155 MHz band, have been reallocated for use by wireless services that have variously been described as third generation (3G), advanced, and broadband.

The largest amount of the estimated relocation costs are for federal law enforcement agencies: Federal Bureau of Investigation (FBI) $139,650,00, Drug Enforcement Administration (DEA) $75,000,000, Bureau of Alcohol, Tobacco and Firearms (ATF) $48,171,069, and Customs and Border Protection $75,699,990.

The total estimated relocation costs for the Department of Defense (DOD) are $288,889,848.

Late in 2004 the Congress enacted HR 5419, a large composite bill. Title II of this bill is the "Commercial Spectrum Enhancement Act", or CSEA. It amended the National Telecommunications and Information Administration Organization Act by creating a Spectrum Relocation Fund, funded by auction proceeds, to compensate federal agencies for the cost of relocating.

It also required the NTIA to prepare these estimates. See, Section 207.

See also, stories titled "House Approves Bill that Includes the Commercial Spectrum Enhancement Act" in TLJ Daily E-Mail Alert No. 1,025, November 24, 2004; "Powell Urges Senate to Approve Telecom Bill" in TLJ Daily E-Mail Alert No. 1,032, December 7, 2004; and, "Congress Approves Telecom Bill" in TLJ Daily E-Mail Alert No. 1,035, December 10, 2004.

The Congressional Budget Office (CBO) wrote in a 2003 report [7 pages in PDF] that "CBO estimates that implementing H.R. 1320 would increase net direct spending by $1.5 billion over the 2006-2008 period and by $2.6 billion over the next 10 years." HR 1320 was an earlier version of the CSEA.

Michael Gallagher (at left), the outgoing head of the NTIA, stated that "Today's spectrum announcement is great news for American consumers and the U.S. economy ... President Bush's committed focus on wireless as a catalyst for technology growth is paying dividends. His leadership resulted in the historic agreement of the Department of Defense and other agencies to open up the frequencies, as well as the passage of key legislation a year ago that will make the 2006 auctions a reality". He added that "With 90 megahertz of additional spectrum, today's cellular carriers will be tomorrow's next-generation broadband providers".

Gallagher has not yet announced where he will go when he departs from the NTIA. There remains a Republican vacancy on the Federal Communications Commission (FCC), which will soon auction this spectrum to service providers.

In 2003 the FCC adopted services rules for the 1710-1755 and 2110-2155 MHz bands. The FCC's Report and Order (R&O) is FCC 03-251 in WT Docket No. 02-353. See also, stories titled "FCC Adopts 3G Order and NRPM" in TLJ Daily E-Mail Alert No. 546, November 11, 2002; "FCC Announces Services Rules for 3G Spectrum" in TLJ Daily E-Mail Alert No. 761, October 20, 2003; and "FCC Releases Order Regarding Service Rules for 3G Spectrum" in TLJ Daily E-Mail Alert No. 788, November 28, 2003.

See also, the FCC's Wireless Telecommunications Bureau's (WTB) web page for this upcoming auction.

And see, Telecommunications Industry Association (TIA) release praising the NTIA report.

12/20. The Department of Justice's (DOJ) Antitrust Division filed a civil complaint in U.S. District Court (SDNY) against Marquee Holdings, Inc. and LCE Holdings, Inc., which are holding companies that own AMC Entertainment Inc. and Loews Cineplex Entertainment Corporation, respectively.

The complaint alleges that the proposed merger of Marquee and LCE violates Section 7 of the Clayton Act, which is codified at 15 U.S.C. § 18, by substantially lessening competition, and tending to create a monopoly in the theatrical exhibition of commercial, first-run movies in parts of Boston, Chicago, Dallas, New York, and Seattle.

The DOJ and the defendants simultaneously filed a joint proposed Final Judgment, under which the merged entity is required to divest certain theater properties in the five markets at issue.

See also, DOJ release, proposed Hold Separate Stipulation and Order, and Competitive Impact Statement.

This case is USA, Illinois, New York and Massachusetts v. Marquee Holdings, Inc. and LCE Holdings, Inc., U.S. District Court for the Southern District of New York, D.C. No. 05 CV 10722, Judge Kimba Wood presiding.

12/21. The state of Texas filed an amended complaint [14 pages in PDF] in Texas v. Sony BMG, a civil case pending in the trial court in Texas regarding Sony BMG's sale of music CDs that install software on purchasers' computers, without notice to purchasers.

The original complaint alleged violations of two subsections of the state of Texas's "Consumer Protection Against Consumer Spyware Act", or CPACSA, which is codified at Tex. Bus. & Com. Code, § 48.001 et seq. (Vernon Supp. 2005). This latest pleading, which is titled "Plaintiff’s First Amended Complaint", adds allegations of violation of another subsection of the CPACSA and several sections of the Texas Deceptive Trade Practices-Consumer Protection Act (TDPA), which is codified at Tex. Bus. & Com. Code, § 17.47.

Greg Abbott (at right), the Attorney General of the State of Texas, stated in a release that "We keep discovering additional methods SONY used to deceive Texas consumers who thought they were simply buying music". The state has in its web site an online consumer complaint form.

Abbott added that "Retailers that continue to sell these CDs may be just as liable under the law as SONY".

The state of Texas filed its original complaint [8 pages in PDF] on November 21, 2005. That complaint alleged that Sony has sold audio CDs with software, some of which is related to content protection, which software also degrades the consumers' PC performance, and exposes the PC to certain virus threats, without disclosure to consumers. See, story titled "Texas Sues Sony BMG Alleging Violation of Texas Spyware Statute" in TLJ Daily E-Mail Alert No. 1,258, November 22, 2005.

The original complaint alleged that Sony "has knowingly caused computer software to be copied to a computer in this state, of which it is not the owner or operator, and used that software to: A. Change the name, location, or other designation of computer software to prevent the owner from locating and removing the software, in violation of CPASCA § 48.053(5); and B. Create randomized or intentionally deceptive file names or random or intentionally deceptive directory folders, format, or registry entries to avoid detection and prevent the owner from removing computer software, in violation of CPASCA § 48.053(6)."

The original complaint also alleges that Sony has induced computer users "to install a computer software component to the computer by intentionally misrepresenting the extent to which the installation is necessary for security or privacy reasons, to open or view text, or to play a particular type of musical or other content, in violation of CPASCA § 48.055(1)."

The just filed amended complaint repeats these allegations, and adds another CPACSA allegation. It alleges that Sony has cause software to be installed on users' computers, and used the software to "Prevent the owner’s or operator’s reasonable efforts to block the installation of or to disable computer software by: 1) presenting the owner or operator with an option to decline the installation of software knowing that, when the option is selected, the installation process will continue to proceed; or 2) misrepresenting that software has been disabled, in violation of Spyware Act § 48.053(4)".

The amended complaint also adds allegations of violation of the Texas Deceptive Trade Practices-Consumer Protection Act (TDPA)

This case is State of Texas v. Sony BMG Music Entertainment LLC, District Court of Travis County, 126th Judicial District, Texas, No. GV505065.

Disclosure. One of the attorneys for the state of Texas whose name appears on the complaint is a former law school classmate and roommate of the publisher of TLJ. Readers may wish to take this into consideration in assessing the accuracy and objectivity of any TLJ coverage of this lawsuit.

12/27. Anthony Scott Clark pled guilty in U.S. District Court (NDCal) to criminal charges of violation of 18 U.S.C. §1030, in connection with his having launched distributed denial of service (DDOS) attacks at the computers of internet auction website eBay. He pled guilty to intentionally causing damage to a protected computer in violation of 18 U.S.C. §1030(a)(5)(A)(i), (a)(5)(B)(i), (c)(4)(A) and 2. Clark was charged by an Information [3 pages in PDF] filed on December 9, 2005. Clark has not yet been sentenced. The District Court has scheduled a status hearing regarding sentencing for 1:30 PM on April 3, 2006. This case is USA v. Anthony Scott Clark, aka Volkam, U.S. District Court for the Northern District of California, San Jose Division, D.C. No. CR 05 00789, Judge James Ware presiding. See also, USAO release.

12/21. A grand jury of the U.S. District Court (NDCal) returned an indictment that charges Suibin Zhang with three counts of computer fraud in violation of 18 U.S.C. § 1030(a)(4), three counts of theft, misappropriation and unauthorized downloading of trade secrets in violation of 18 U.S.C. §§ 1832(a)(1), (2) and (4), two counts of unauthorized copying and transmission of trade secrets in violation of 18 U.S.C. §§ 1832(a)(2) and (4), and one count unauthorized possession of stolen trade secrets in violation of 18 U.S.C. §§ 1832(a)(3) and (4). The U.S. Attorneys Office (USAO) for the Northern District of California stated in a release that Zhang was previously an engineer and product development manager at Netgear, which makes computer networking products. He also had access to the extranet of Marvell Semiconductor, a customer of Netgear. He signed a non-disclosure agreement, and had access to trade secrets. He then took a job at Broadcom. But first, he downloaded dozens for files containing proprietary and trade secret information about switches and transceiver products from the Marvell extranet. The USAO release continues that he that provides Marvell trade secrets to Broadcom.

12/19. The U.S. Attorneys Office for the Central District of California charged Jason Jones, Jonathan Bryant, and Pei "Patrick" Caico by criminal information with conspiracy to commit copyright infringement and violation of the anti-circumvention provisions of the Digital Millennium Copyright Act (DMCA) in connection with the modification and sale of Microsoft Xbox game consoles that allowed the machines to play pirated video games copied onto a hard drive installed in the console. Jones and Byrant are co-owners of ACME Game Store in Los Angeles, California. See, USAO release.

12/21. The U.S. Patent and Trademark Office (USPTO) announced that it will expand teleworking by patent employees. It announced that it will deploy about 40 employees per week into a new program, and attain a total of about 500 employees in the program by September of 2006. The USPTO stated in a release that "Participants will have all the communications tools and application processing capabilities they need to do their jobs remotely. The program incorporates hoteling, by which participants can reserve time in on-campus ``shared offices´´ to conduct certain business such as interviewing applicants and attorneys, receive training, attend meetings, and use on-site resources as needed."

Tech Law Journal publishes a free access web site and subscription e-mail alert. The basic rate for a subscription to the TLJ Daily E-Mail Alert is $250 per year. However, there are discounts for subscribers with multiple recipients. Free one month trial subscriptions are available. Also, free subscriptions are available for journalists, federal elected officials, and employees of the Congress, courts, and executive branch. The TLJ web site is free access. However, copies of the TLJ Daily E-Mail Alert are not published in the web site until one month after writing. See, subscription information page.

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Notices & Disclaimers
Copyright 1998 - 2005 David Carney, dba Tech Law Journal. All rights reserved.

The House will not meet. It will convene for the 2nd Session of the 109th Congress on Tuesday, January 31, 2006. See, Majority Whip's calendar.

The Senate will not meet. It will hold a pro forma session on January 3. It will convene for the 2nd Session of the 109th Congress on Wednesday, January 18, 2006. See, 2006 Senate calendar.

Deadline to submit comments to the National Archives and Records Administration (NARA) regarding its draft NARA guidance for implementing Section 207(e) of the E-Government Act of 2002, which is now Public Law 107-347. This statute requires the NARA to adopt "policies and procedures" that provide that federal archive statutory requirements "are applied effectively and comprehensively to Government information on the Internet and to other electronic records". See, notice in the Federal Register, November 14, 2005, Vol. 70, No. 218, at Pages 69165 - 69168.

Deadline to submit initial comments to the Federal Communications Commission (FCC) regarding a petition for rulemaking of 13 hearing impairment related entities. Their petition requests that the FCC initiate a rulemaking proceeding to mandate captioned telephone relay service and to approve internet protocol captioned telephone relay service. The FCC's Public Notice [PDF] states that "Captioned telephone service is a form of telecommunications relay service (TRS) that permits persons to simultaneously both listen to what the other party is saying and read captions of what the other party is saying on the same device. Presently the service is eligible for compensation from the Interstate TRS Fund (Fund), but is not mandatory. The petition asks the Commission to initiate a rulemaking for the purpose of making captioned telephone service a mandatory form of TRS and approving Internet Protocol (IP) captioned telephone service as eligible for compensation from the Fund." (Footnotes omitted). This notice is DA 05-2961 in CG Docket No. 03-123. See also, notice in the November 30, 2005, Vol. 70, No. 229, at Pages 71849 - 71850.

New Years Day.

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

The Senate will meet in pro forma session.

Effective date of the Library of Congress' Copyright Royalty Board's rules changes that provide for a cost of living adjustment of 4.3% in the royalty rates paid by colleges, universities, or other nonprofit educational institutions that are not affiliated with National Public Radio for the use of copyrighted published nondramatic musical compositions in the BMI, ASCAP and SESAC repertoires. See, notice in the Federal Register, December 1, 2005, Vol. 70, No. 230, at Page 72077.

Deadline to submit to the Library of Congress' Copyright Royalty Board petitions to participate in its proceeding commenced at the request of XM Satellite Radio. The purpose of this proceeding is to determine the reasonable rates and terms for the transmission and ephemeral recording statutory licenses that would apply to a new subscription service that performs sound recordings on digital audio channels programmed by the licensee for transmission by a satellite television distribution service to its residential customers, where the audio channels are bundled with television channels as part of a basic package of service and not for a separate fee. See, notice in the Federal Register, December 5, 2005, Vol. 70, No. 232, at Pages 72471 - 72472.

12:00 NOON. The Federal Communications Bar Association's (FCBA) Wireless Telecommunications Practice Committee will host a lunch. There will be a debate regarding municipal WiFi networks between Tom Lenard (Progress & Freedom Foundation) and Harold Feld (Media Access Project). See, registration form [PDF]. Location: Sidley Austin, 1501 K Street, NW.

4:00 - 7:00 PM. The International Trademark Association (INTA) will host a symposium titled "Should Parma be a Trademark? Issues Surrounding Geographical Marks and Indicators". The speakers will be Roger Schechter (George Washington University Law School), Lionel Bently (University of Cambridge), Min-Chiuan Wang (Institute of Technology Law, National Chiao-Tung University in Taiwan), and Glynn Lunney (Tulane University School of Law). See, notice. Location: __.

Deadline to submit reply comments to the Office of the U.S. Trade Representative (USTR) regarding the operation, effectiveness, and implementation of and compliance with (1) the World Trade Organization (WTO) agreements affecting market opportunities for telecommunications products and services of the U.S., (2) the telecommunications provisions of the North American Free Trade Agreement (NAFTA), (3) the U.S. free trade agreements (FTAs) with Chile, Singapore, and Australia, and (4) any other FTAs coming into effect by January 1, 2006. See, notice in the Federal Register, November 16, 2005, Vol. 70, No. 220, at Pages 69621 - 69622.

12:00 NOON. The Senate Judiciary Committee (SJC) will begin its hearings on the nomination of Judge Sam Alito to be a Justice of the Supreme Court. Location: Room 216, Hart Building.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Sharp Kabushiki v. ThinkSharp, Inc., No. 05-1220. This is a dispute regarding registration of the mark "Thinksharp" for computer software by ThinkSharp, Inc. Sharp, which makes electronics products, objects. Location: Courtroom 201, 717 Madison Place, NW.

The Federal Communications Commission (FCC) will begin a mock auction for its FM Broadcast Construction Permits Auction (Auction No. 62). See, Public Notice [PDF] numbered DA 05-3204, and dated December 21, 2005.

9:00 AM. The President's Council of Advisors on Science and Technology (PCAST) will hold an open meeting. The tentative agenda for this meeting includes a presentation on the Federal Networking and Information Technology Research and Development (NITRD) program, an update on nanotechnology, and a briefing on the U.S.-China S&T Forum. See, notice in the Federal Register, December 23, 2005, Vol. 70, No. 246, at Page 76286. Location: Washington Room, Hotel Washington located at 515 15th St., NW.

10:00 AM. The Supreme Court will hear oral argument in Texaco v. Dagher and Shell v. Dagher. This case involves the application of antitrust law to lawful joint ventures. See, story titled "Supreme Court Grants Certiorari in Dagher" in TLJ Daily E-Mail Alert No. 1,163, June 28, 2005, and story titled "Verizon Seeks Reversal in Texaco v. Dagher" in TLJ Daily E-Mail Alert No. 1,232, October 12, 2005. See also, Supreme Court docket.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Microchip Technology v. Chamberlain Group, No. 05-1339. Location: Courtroom 402, 717 Madison Place, NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Resonate, Inc. v. Alteon Websystems, No. 05-1336. This is a patent case involving internet traffic routers and switches. See also, Resonate, Inc. v. Alteon Websystems, Inc., 338 F.3d 1360 (Fed. Cir. 2003). Location: Courtroom 201, 717 Madison Place, NW.

12:00 NOON - 1:30 PM. The DC Bar Association's Intellectual Property Law Section will host a panel discussion titled "Post-Grokster: What the Supreme Court Decision Means to You and Your Clients". The speakers will include John Hornick (Finnegan Henderson). The price to attend ranges from $20-$40. For more information, call 202 626-3463. See, notice. Location: D.C. Bar Conference Center, 1250 H Street NW, B-1 Level.

12:15 PM. The Federal Communications Bar Association's (FCBA) Transactional Practice Committee will host a brown bag lunch regarding the "Implications of the recent Media Bureau decisions rescinding grants of assignment/transfer of control applications after the parties have closed". For more information, contact Howard Liberman at hliberman at dbr dot com. Location: __.

2:00 - 4:00 PM. The Department of State's International Telecommunication Advisory Committee (ITAC) will hold the first in a series of weekly meetings to prepare for the International Telecommunications Union's (ITU) 2006 ITU Plenipotentiary Conference, to be held November 6-24, 2006, in Antalya, Turkey. See, notice in the Federal Register, December 21, 2005, Vol. 70, No. 244, at Page 75854. This notice incorrectly states that these meetings will be held on Tuesdays; they are on Wednesdays. For more information, contact Julian Minard at 202 647-2593 or minardje at state dot gov. Location: AT&T, 1120 20th St., NW.

Deadline to submit reply comments to the Federal Communications Commission (FCC) regarding the petition for declaratory ruling (DR) filed by Grande Communications that seeks a DR regarding the treatment of traffic terminated through Grande to end users of interconnected local exchange carriers (LECs), in circumstances where customers of Grande have certified that the traffic originated in Internet protocol (IP) format. See, notice in the Federal Register, November 2, 2005, Vol. 70, No. 211, at Pages 66411 - 66412. See also, story titled "FCC Sets Comment Deadlines for DR Petition on IP Originated VOIP Traffic and Intercarrier Compensation" in TLJ Daily E-Mail Alert No. 1,246, November 3, 2005. This proceeding is WC Docket No. 05-283.

Deadline to submit to the Department of Commerce's Technology Administration nominations of individuals to serve on the National Medal of Technology Nomination Evaluation Committee. See, notice in the Federal Register, December 12, 2005, Vol. 70, No. 237, at Page 73453.

The Federal Communications Commission (FCC) will begin its FM Broadcast Construction Permits Auction (Auction No. 62).  See, Public Notice [PDF] numbered DA 05-3204, and dated December 21, 2005.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Jan Voda v. Cordis Corporation, App. Ct. No. 05-1238. This is a patent dispute arising in the U.S. District Court (WDOkla), D.C. No. 03-CV-1512. The issue is whether the District Court has supplemental jurisdiction over foreign patent infringement claims in a U.S. patent infringement action under 28 U.S.C. § 1367(a). See, amicus brief [PDF] of the AIPLA, and amicus brief [35 pages in PDF] of the IPO. Location: Courtroom 402, 717 Madison Place, NW.

6:00 - 9:15 PM. The DC Bar Association will host a continuing legal education (CLE) seminar titled "Patent Law for Non-Patent Lawyers". The speakers will include Jacqueline Bonilla (Foley & Lardner) and Elizabeth Brenner (Rothwell Figg Ernst & Manbeck). The price to attend ranges from $70-$125. For more information, call 202 626-3488. See, notice. Location: D.C. Bar Conference Center, 1250 H Street NW, B-1 Level.

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in North American Catholic Educational Programming Foundation v. FCC, No. 04-1384, a case regarding Instructional Fixed Television Service ((ITFS). See, FCC's brief [50 pages in PDF]. Judges Ginsburg, Sentelle and Williams will preside. Location: Prettyman Courthouse, 333 Constitution Ave., NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Sandisk v. STMicroelectronics, No. 05-1300. Location: Courtroom 402, 717 Madison Place, NW.

12:15 PM. The Federal Communications Bar Association's (FCBA) Legislation and IP-Based Communications Practice Committees will host a brown bag lunch titled "Legislative Reform Affecting IP-Based Services". The speakers will be Howard Waltzman (Majority Chief Telecommunications Counsel for the House Commerce Committee), Amy Levine (Legislative Counsel to Rep. Rick Boucher (D-VA)), Melissa Newman (VP Regulatory Affairs at Qwest), and Chris Putala (EVP of EarthLink). RSVP to Wendy Parish at wendy at fcba dot org. Location: Verizon Wireless, 1300 Eye Street, NW, Suite 400 West.

2:00 - 4:00 PM. The American Enterprise Institute (AEI) will host a panel discussion titled "Scientific Talent and U.S. Economic Leadership". The speakers will be Richard Freeman (Harvard), Steven Davis (AEI), David Weinstein (Columbia), Kevin Hassett (AEI). See, notice. Location: 12th floor, 1150 17th St., NW.

Deadline to submit comments to the Antitrust Modernization Commission (AMC) on international antitrust issues. The AMC seeks comments in response to the following: "The adoption of competition or antitrust laws by over 100 jurisdictions around the world, as well as the globalization of commerce and markets, has given rise to the potential for conflict between the United States and foreign jurisdictions with respect to enforcement actions taken and remedies sought. Are there multilateral procedures that should be implemented, or other actions taken, to enhance international antitrust comity? In commenting, please address the significance of the issue, what solutions might reduce that problem, and how such solutions could be implemented by the United States." See, notice in the Federal Register, November 16, 2005, Vol. 70, No. 220, at Pages 69510 - 69511.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to a petition for declaratory ruling [34 pages in PDF] filed by the Fax Ban Coalition that asks the FCC to find that the FCC has exclusive authority to regulate interstate commercial fax messages, and that § 17538.43 of the California Business and Professions Code, and all other State laws that purport to regulate interstate facsimile transmissions, are preempted by the TCPA, which is codified at 47 U.S.C. § 541.