10/30. President Bush gave a speech at an election campaign event in Sugar Land, Texas, in which he attacked the position of many Democrats on electronic surveillance of terrorists, and the war on terrorism generally.

He said that "If anybody has any doubts about the differences of opinion in Washington, D.C. between Republicans and Democrats, I want them to analyze the recent votes that took place on these important programs. When it came time to renew the Patriot Act, more than 75 percent of the House Democrats voted against it."

And, "When it came time to vote on whether the National Security Agency should continue to monitor communications that we think would be -- contain information that would protect you, more than 90 percent of the House Democrats voted against it."

He also discussed other aspects of the war on terrorism. He then said that "In all these vital measures for fighting a war on terror, the Democrats in Washington follow a simple philosophy: Just say no."

He then asked a series of questions to his audience, such as, "When it comes to listening in on the terrorists, what's the Democrats' answer?"

"And so when the Democrats ask for your vote on November 7th, what's your answer?"

He concluded that "however they put it, their approach comes down to this: The terrorists win and America loses."

Bush also gave a similar speech at Georgia Southern University in Statesboro, Georgia on October 30. He used many of the same lines in both speeches.

He also said in his Texas speech that "when we found al Qaeda or al Qaeda affiliates making phone calls into the United States, I thought it was important to understand why in order to protect you". He added in his Georgia speech that "I believe that if al Qaeda or an al Qaeda associate is making a phone call from outside the United States to inside the United States, we need to know why in order to be able to protect you."

10/31. The Government Accountability Office (GAO) released a report [34 pages in PDF] titled "Information Security: Coordination of Federal Cyber Security Research and Development".

The report states that many entities are involved in federal cyber security research and development (R&D). It states that the Executive Office of the President's (EOP) Office of Science and Technology Policy (OSTP) and Office of Management and Budget (OMB) "provide high-level oversight for federal research and development, including cyber security".

It states that the OSTP "coordinates the development of a federal agenda for cyber security research and oversees the National Science and Technology Council, which prepares R&D strategies that are to be coordinated across federal agencies."

The report continues that "Much of the government’s cyber security R&D activities are funded or conducted by the National Science Foundation and the Departments of Defense and Homeland Security. Other agencies that also fund or conduct cyber security R&D activities include the Department of Energy, the National Institute of Standards and Technology, and agencies within the intelligence community."

The report finds that a "federal cyber security research agenda has not been developed".

The report also finds that while one cybersecurity activity is "developing and maintaining governmentwide repositories of information on R&D projects", currently, "the governmentwide repositories are incomplete and not fully populated". Consequently, "key information needed for the effective oversight and coordination of cyber security research activities is not readily available".

The report makes two recommendations. First, it recommends that the OSTP "establish firm timelines for the completion of the federal cyber security R&D agenda". Second, it recommends that OMB "issue guidance to agencies on reporting information about federally funded cyber security research projects to the governmentwide repositories".

10/27. The U.S. Court of Appeals (2ndCir) issued its opinion [26 pages in PDF] in Paycom v. Mastercard, an antitrust case brought under Section 1 of the Sherman Act. The District Court dismissed for lack of antitrust standing. The Court of Appeals affirmed.

Mastercard is one of the four major U.S. payment card network service providers. The other three are Visa, American Express and Discover. Mastercard is operated as an open joint venture, and is comprised of and owned by more than 20,000 member banks and other financial institutions.

Paycom Billing Service sells access to its customers' password protected web sites. Most of its customers operate subscription based porn sites. These are web based transactions in which the customer is not present (CNP) and signs no receipt.

The Court of Appeals described Paycom's operations. "In serving as ``payment processor´´ or ``agent´´ for its customer website operators, Paycom is a merchant purchaser of MasterCard network services that has contracted with a MasterCard member acquiring bank directly. Under its merchant account with an acquiring bank, Paycom submits consumers' MasterCard transactions for authorization and payment. After receiving authorization and payment from the acquiring bank, Paycom credits the accounts of its customer websites in the amount of the transaction minus those fees Paycom charges for arranging the transaction. All purchases through Paycom are CNP transactions."

Mastercard has implemented several policies to which Paycom objects. These are (1) Mastercard's allowing the imposition of penalties for charges denied by customers of, and failure to guarantee payment to, merchants who accept credit card charges without obtaining a signed receipt, (2) Mastercard's limitations on member banks' associating with competing credit cards, also titled its "Competitive Programs Policy", and (3) Mastercard's rules limiting the participation of foreign banks in MasterCard's payment-card business, also titled "Cross-Border Acquiring Rules".

There is a much higher incidence of fraud, and hence, charges denied by customers, with CNP than with customer present (CP) transactions. Under Mastercard's policy, payment is guaranteed to CP merchants. However, for CNP transactions, the merchants bear the loss. Moreover, Mastercard's policy allows its members to add chargeback fines and penalties to acquiring banks. Paycom, which processes CNP transactions for porn sites, does not like this policy.

Paycom participates in a fraud ridden business, and then argues that penalties for processing fraudulent transactions rise to the level of an antitrust violation.

Paycom filed a complaint in U.S. District Court (EDNY) against Mastercard alleging that these three policies violate Section 1 of the Sherman Act, which is codified at 15 U.S.C. § 1.

The District Court dismissed the complaint for failure to state a claim.

The Court of Appeals affirmed the dismissal, based upon lack of antitrust standing.

The Court of Appeals wrote that private plaintiffs must demonstrate antitrust standing. They must show that they have suffered an antitrust injury, which is an injury of the type the antitrust laws were intended to prevent and that flows from that which makes defendants' acts unlawful.

The Court wrote that this antitrust injury requirement ensures that a plaintiff can recover only if the loss stems from a competition reducing aspect or effect of the defendant's behavior.

Moreover, the Court recited several other factors that are relevant, in addition to antitrust injury, to establishing antitrust standing.

The Court then applied the law of antitrust standing to Paycom's factual allegations regarding the three objectionable policies, and concluded that there is no antitrust standing in this case. It affirmed the District Court's dismissal.

This case is Paycom Billing Services, Inc. v. Mastercard International, Inc., U.S. Court of Appeals for the 2nd Circuit, App. Ct. No. 05-1845-cv, an appeal from the U.S. District Court for the Eastern District of New York, Judge Trager presiding. Judge Ralph Winter wrote the opinion of the Court of Appeals, in which Judges Jacobs and Walter joined.

10/31. The Department of Justice's (DOJ) Antitrust Division announced in a release that "it has suspended its investigation of Entercom Communications Corporation's proposed acquisition of New York radio stations from CBS Corporation as long as the companies sell three Rochester radio stations as planned."

The DOJ added that "Entercom informed the Department that it planned to divest the three Rochester stations in order to avoid the need for further investigation by the Justice Department and to comply with the Federal Communications Commission's (FCC) local ownership rules. The investigation arose from Entercom's proposed $262 acquisition of 15 radio stations from CBS in Austin, Texas; Cincinnati, Ohio; Memphis, Tenn.; and Rochester, N.Y."

Entercom owns four stations in the Rochester area. It would have acquired from CBS four more stations.

The DOJ elaborated that "The FCC's local ownership rules prohibit Entercom from owning more than five FM stations in one area and would require Entercom to sell two stations. Prior to the conclusion of the Department's antitrust investigation, Entercom advised the Department that it planned to sell CBS's WRMM-FM and WZNE-FM and Entercom's WFKL-FM to a third party. The Department determined that this sale would reduce Entercom's post-transaction share of Rochester radio advertising revenues to about 40 percent. Based on the reduced share of revenue and the characteristics of the radio stations being sold, the Department concluded that it would not have reason to continue its investigation if the proposed sale is completed."

11/1. Scott Wallsten will join the Progress & Freedom Foundation (PFF) on November 13, 2006, as a Senior Fellow and Director of Communications Policy Studies. He previously worked for the AEI-Brookings Joint Center for Regulatory Studies and the American Enterprise Institute (AEI). He has also worked as economist at The World Bank, as a scholar at the Stanford Institute for Economic Policy Research, and as a staff economist at the President's Council of Economic Advisers.

10/31. Sherwin Siy joined the Public Knowledge (PK) as staff attorney and director of PK’s Global Knowledge Initiative, effective November 1, 2006. He previously worked for the Electronic Privacy Information Center (EPIC).

11/1. The Federal Communications Commission (FCC) issued a Memorandum Opinion and Order [25 pages in PDF] in its proceeding titled "In the Matter of Continental Airlines Petition for Declaratory Ruling Regarding the Over-the-Air Reception Devices (OTARD) Rules" and numbered ET Docket No. 05-247. The FCC concluded that "Massport's restrictions on Continental’s use of its Wi-Fi antenna are pre-empted by the OTARD rules and we therefore grant Continental’s petition." On July 8, 2005, Continental Airlines filed with the FCC a Petition for a Declaratory Ruling [16 pages in PDF] and supplement [PDF] regarding the Massachusetts Port Authority's (MassPort) attempt to regulate and extract revenues from airport WiFi hotspots. See also, story titled "FCC Delays Proceeding on State Regulation of Airport WiFi Hotspots" in TLJ Daily E-Mail Alert No. 1,201, August 25, 2005, and story titled "FCC Seeks Comments of Massachusetts Port Authority's Attempt to Regulate Airport WiFi Hotspots" in TLJ Daily E-Mail Alert No. 1,186, August 2, 2005.

The House will not meet. It may return from it elections recess on Monday, November 13, 2006. The adjournment resolution, HConRes 483, provides for returning on Thursday, November 9, at 2:00 PM.

The Senate will not meet. See, HConRes 483.

9:30 AM - 1:00 PM. The Department of Justice's (DOJ) Antitrust Division and the Federal Trade Commission (FTC) will hold another of their series of hearings on single-firm conduct. This hearing will address tying. The speakers will be David Evans (Vice Chairman of LECG Europe), Robin Feldman (Hastings College of the Law), Mark Popofsky (Kaye Scholer), Donald Russell (Robbins Russell), Michael Waldman (Cornell University), Robert Willig (Princeton University). See, notice. Location: Room 432, FTC Headquarters Building, 600 Pennsylvania Ave.,  NW.

8:00 AM - 2:00 PM. The National Science Foundation's (NSF) Advisory Committee for Cyberinfrastructure will meet. See, notice in the Federal Register, October 17, 2006, Vol. 71, No. 200, at Page 61073. Location: NSF, 4201 Wilson Blvd., Room 375, Arlington, VA.

9:00 AM - 5:00 PM. The Federal Communications Bar Association (FCBA) will host a program titled "Communications Law 101". See, registration form [PDF]. Prices vary. Location: Wiley Rein & Fielding, 1776 K St., NW.

12:00 NOON - 3:00 PM. The DC Bar Association will host a panel discussion titled "DR-CAFTA: The United States-Dominican Republic-Central America Free Trade Agreement A Roundtable with the Ambassadors". The price to attend ranges from $15 to $40. For more information, call 202-626-3463. See, notice. Arnold & Porter, 555 12th Street, NW.

5:30 - 7:30 PM. The Federal Communications Bar Association's (FCBA) Young Lawyers Committee will host an event titled "Comm Law 101 Happy Hour". For more information, contact Chris Fedeli at cfedeli at crblaw dot com or 202-828-9874, or Natalie Roisman at nroisman at akingump dot com or 202-887-4493. Location: Restaurant Kolumbia, 1801 K St, NW.

8:00 - 10:00 AM. The Software & Information Industry Association (SIIA) will host an event titled "Federal Enterprise Architecture: Key Strategies Government Agencies Need to Implement for Aligning IT Operations to Accelerate Business Performance". See, notice. Location: Morrison & Foerster, Suite 5500, 2000 Pennsylvania Ave., NW.

8:30 AM - 4:00 PM. The Department of Justice's (DOJ) Global Justice Information Sharing Initiative Federal Advisory Committee will meet. The deadline to register is October 26, 2006. See, notice in the Federal Register, October 26, 2006, Vol. 71, No. 204, at Page 62122. Location: Embassy Suites Hotel, 900 10th Street NW.

9:00 AM - 5:30 PM. The Information Technology Association of America (ITAA) will host a conference titled "Information Security in the Federal Enterprise". Karen Evans (OMB) will be the keynote speaker. The price to attend ranges from free to $400. See, notice and agenda [PDF]. For more information, contact Patti Coen at pcoen at itaa dot org. Location: Computer Services Corporation (CSC), Executive Briefing Center, 3170 Fairview Park Drive, Falls Church, VA.

12:00 NOON - 2:00 PM. The Federal Communications Bar Association's (FCBA) International Telecommunications Committee will host a brown bag lunch titled "VoIP and Broadband Developments in Europe and Asia". The speakers will be Mark Del Bianco (Law Office of Mark Del Bianco), Christian Dippon (NERA Economic Consulting), Peter Waters (Gilbert+Tobin and Arculli Fong & Ng), Karl Weaver (Newport Technologies), and Jean-marc Escalettes (France Telecom Long Distance USA). RSVP by October 30 to Jennifer Ullman at jennifer dot ullman at verizon dot com or 202-515-2432. Location: Skadden Arps, 11th Floor, 1440 New York Ave., NW.

12:00 NOON - 2:00 PM. The DC Bar Association will host a panel discussion titled "Korea-U.S. Free Trade Agreement -- Negotiations Update". The speakers will include Wendy Cutler (chief U.S. negotiator for the Korea US FTA), Seok-young Choi (Minister of Economic Affairs, Embassy of the Republic of Korea), Demetrios Marantis (International Trade Counsel, Democratic Staff, Senate Finance Committee), Myron Brilliant (U.S.-Korea Business Council), and Mary Patricia Michel (McKenna Long & Aldridge). The price to attend ranges from $5 to $25. For more information, call 202-626-3463. See, notice. Location: D.C. Bar Conference Center, 1250 H Street NW, B-1 Level.

9:00 AM - 4:00 PM. The Federal Communications Commission's (FCC) Consumer Advisory Committee will meet. See, notice in the Federal Register, October 18, 2006, Vol. 71, No. 201, Page 61470-61471. Location: FCC, 445 12th Street, SW.

9:30 AM. The Federal Communications Commission (FCC) may hold a meeting. See, agenda [PDF]. The event will be webcast by the FCC. Location: FCC, 445 12th Street, SW, Room TW-C05 (Commission Meeting Room).

9:30 - 11:30 AM. The Department of State's (DOS) International Telecommunication Advisory Committee (ITAC) will meet to discuss the upcoming meeting of the ITU Radiocommunication Sector's Conference Preparatory Meeting (CPM) for the 2007 World Radiocommunication Conference, to be held on February 19 through March 2, 2007 in Geneva, Switzerland. See, notice in the Federal Register, October 10, 2006, Vol. 71, No. 195, at Page 59580. Location: Boeing Company, 1200 Wilson Blvd., Arlington, VA.

EXTENDED TO DECEMBER 4. Deadline to submit comments to the Department of Commerce's (DOC) Bureau of Industry and Security (BIS) regarding its proposed changes to its Export Administration Regulations (EAR) pertaining to exports and reexports of dual-use items to the People's Republic of China (PRC). Dual use items include certain encryption products, information security products, fiber optic products, computers, and software. See, notice in the Federal Register, July 6, 2006, Vol. 71, No. 129, at Pages 38313-38321. See, notice of extension in the Federal Register, October 19, 2006, Vol. 71, No. 202, at Page 61692.

Day one of a four day a partially closed conference hosted by the Federal Trade Commission (FTC) titled "Protecting Consumers in the Next Tech-ade". The topics to be addressed include "The Changing Nature of Consumer Products, Mobile Devices and Marketing, Data Security and Privacy, Convergence, The Evolving Internet, Payment Systems and Trends, Advertising and Marketing Trends, and Demographic Shifts". The November 9 session is closed to the public. See, notice and conference web site. Location: George Washington University, Lisner Auditorium, 730 21st Street, NW.

Election Day.

2:00 PM. The U.S. Court of Appeals (FedCir) will hear oral argument in Plumtree Software v. Datamize, App. Ct. No. 06-1017, an appeal from the U.S. District Court (NDCal). Location: Courtroom 201, 717 Madison Place, NW.

2:00 PM. The U.S. Court of Appeals (FedCir) will hear oral argument in Thompson v. Microsoft, App. Ct. No. 06-1073. Location: Courtroom 203, 717 Madison Place, NW.

2:00 PM. The U.S. Court of Appeals (FedCir) will hear oral argument in Missiontrek v. Onfolio, App. Ct. No. 06-1271, an appeal from the Trademark Trial and Appeal Board (TTAB). Location: Courtroom 203, 717 Madison Place, NW.

Day two of a four day a partially closed conference hosted by the Federal Trade Commission (FTC) titled "Protecting Consumers in the Next Tech-ade". The topics to be addressed include "The Changing Nature of Consumer Products, Mobile Devices and Marketing, Data Security and Privacy, Convergence, The Evolving Internet, Payment Systems and Trends, Advertising and Marketing Trends, and Demographic Shifts". The November 9 session is closed to the public. See, notice and conference web site. Location: George Washington University, Lisner Auditorium, 730 21st Street, NW.

9:00 AM. The Department of Commerce's (DOC) Bureau of Industry and Security's (BIS) Information Systems Technical Advisory Committee will meet. The agenda includes "Graphics Processors Technology", "Frequency Standards", "Telephony Signaling", "Phase Noise", and "Frequency Synthesizer Assemblies". See, notice in the Federal Register, October 25, 2006, Vol. 71, No. 206, at Page 62416. Location: Room 3884, Hoover Building, 14th Street between Constitution and Pennsylvania Avenues, NW.

12:15 PM. The Federal Communications Bar Association's (FCBA) Diversity Committee and Young Lawyers Committee will host a panel discussion titled "The Role of Mentoring in the Legal Profession". The speakers may include Kyle Dixon (Wilmer Hale), Marvin Ammori (Georgetown University Law Center), Judy Harris (ReedSmith) and James Sandman (Arnold & Porter). RSVP by November 3 to Colin Sandy at csandy at neca.org or LadyStacie Rimes at 202-682-5995. Location: Sidley Austin, , 6th Floor, 1501 K Street, NW.

Day three of a four day a partially closed conference hosted by the Federal Trade Commission (FTC) titled "Protecting Consumers in the Next Tech-ade". The topics to be addressed include "The Changing Nature of Consumer Products, Mobile Devices and Marketing, Data Security and Privacy, Convergence, The Evolving Internet, Payment Systems and Trends, Advertising and Marketing Trends, and Demographic Shifts". The November 9 session is closed to the public. See, notice and conference web site. Location: George Washington University, Lisner Auditorium, 730 21st Street, NW.

Deadline to submit comments to the Office of the U.S. States Trade Representative's (USTR) Trade Policy Staff Committee (TPSC) regarding barriers to U.S. exports of goods, services and overseas direct investment for inclusion in the USTR's annual report titled "National Trade Estimate Report on Foreign Trade Barriers", or "NTE". See, notice in the Federal Register, August 14, 2006, Vol., No. 156, at Pages 46525-46527.

Deadline to submit reply comments to the Federal Communications Commission's (FCC) Federal-State Joint Board on Universal Service in response to the FCC's public notice [PDF] requesting comments regarding the use of reverse auctions to determine high cost universal service funding to eligible telecommunications carriers. This proceeding is WC Docket No. 05-337 and CC Docket No. 96-45. See, notice in the Federal Register, August 25, 2006, Vol. 71, No. 165, at Pages 50420-50421.

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