11/20. The Supreme Court of California issued its opinion [41 pages in PDF] in Barrett v. Rosenthal, a state defamation action involving the issue of Section 230 immunity. The Court reversed the Court of Appeal's October 15, 2003 opinion, and extended immunity to someone who posted to two internet newsgroups an allegedly defamatory article written by another person.

Introduction. 47 U.S.C. § 230(c)(1) provides that "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider."

Most of the reported opinions have involved providers of interactive computer services such as America Online. These service providers have been largely successful in asserting this section to avoid defamation liability, and other forms of liability, for the statements of users of their services. However, the defendant in this case is not the provider of an interactive computer service. She is a user of interactive computer services. She posted to internet newsgroups an allegedly defamation article written by another person.

The statute also extends immunity to users. This opinion construes this aspect of the statute.

The statements at issue in this appeal, which are alleged to be defamatory, were made by Tim Bolen in an e-mailed article titled "Opinion by Tim Bolen". Ilena Rosenthal, the appellant in this case, directed something titled "Humantics Foundation for Women". She also operated an internet discussion group. Rosenthal posted a copy of Bolen's article on the web sites of two newsgroups devoted to alternative health issues and the politics of medicine, not on the site of her own discussion group.

Stephen Barrett and Timothy Polevoy allege that they were defamed by the Bolen article.

Proceedings Below. They filed a complaint in California Superior Court for Alameda County against Bolen and Rosenthal alleging defamation. The Superior Court (trial court) held that Rosenthal's republication of Bolen's statements was immunized by Section 230.

The Court of Appeal of California (intermediate appellate court) reversed, holding that Section 230 did not protect Rosenthal from liability as a distributor under the common law of defamation.

The Supreme Court of California (SCC) wrote that "Under the common law, ``distributors´´ like newspaper vendors and book sellers are liable only if they had notice of a defamatory statement in their merchandise. The publisher of the newspaper or book where the statement originally appeared, however, may be held liable even without notice."

The SCC wrote that the Court of Appeal "decided that common law ``distributors´´ liability survived the congressional grant of immunity, so that Internet service providers and users are exposed to liability if they republish a statement with notice of its defamatory character."

Rosenthal brought the present appeal to the SCC.

Amicus Briefs. Rosenthal received substantial amicus curiae support. The law firm of Wilmer Hale, which has for many years been litigating Section 230 cases, submitted an amicus brief [3MB PDF scan] on behalf of a large group of e-commerce, internet service, publishing, software, and broadband companies, and the groups that represent them.

This group of amici included Amazon, eBay, Google, Yahoo, Netscape, AOL, Microsoft, CNN, ESPN, Washington Post, Newspaper Association of America, Online News Association, Online Publishers Association, SBC Internet Services, Time Warner Cable, Association for Competitive Technology (ACT), and many others.

The American Civil Liberties Union (ACLU) and the Electronic Frontier Foundation (EFF) also submitted a joint amicus brief [29 pages in PDF] in support of Rosenthal.

Supreme Court Opinion. The SCC reversed the Court of Appeal.

It concluded that "section 230 prohibits ``distributor´´ liability for Internet publications", and that "section 230(c)(1) immunizes individual ``users´´ of interactive computer services, and that no practical or principled distinction can be drawn between active and passive use."

The SCC noted that "This appears to be the first published case in which section 230 immunity has been invoked by an individual who had no supervisory role in the operation of the Internet site where allegedly defamatory material appeared, and who thus was clearly not a provider of an ``interactive computer service´´ under the broad definition ..."

But, it held that a user is "anyone using an interactive computer service, without distinguishing between active and passive use".

It held that "there is no basis for deriving a special meaning for the term ``user” in section 230(c)(1), or any operative distinction between ``active´´ and ``passive´´ Internet use. By declaring that no ``user´´ may be treated as a ``publisher´´ of third party content, Congress has comprehensively immunized republication by individual Internet users."

The SCC concluded that "by its terms section 230 exempts Internet intermediaries from defamation liability for republication. The statutory immunity serves to protect online freedom of expression and to encourage self-regulation, as Congress intended. Section 230 has been interpreted literally. It does not permit Internet service providers or users to be sued as ``distributors,´´ nor does it expose ``active users´´ to liability."

However, the SCC commented that "The prospect of blanket immunity for those who intentionally redistribute defamatory statements on the Internet has disturbing implications."

Justice Corrigan wrote the unanimous opinion of the SCC.

Justice Moreno wrote in a concurring opinion that "Although there may be a considerable gap between the specific wrongs Congress was intending to right in enacting the immunity at issue here and the broad statutory language of that immunity, that gap is ultimately for Congress, rather than the courts, to bridge. I write separately to express the view that publishers that conspire with original content providers to defame would not be covered by the immunity provided by" Section 230.

The trial court proceeding was in the Superior Court for Alameda County, and numbered Super. Ct. No. 833021-5. The intermediate appeal was heard by the California Court of Appeal, First Appellate District, Division Two; that was Case No. A096451. The present opinion was issued by the Supreme Court of California, which is the highest court of the state; the SCC case number is S122953.

More Section 230 Cases. The SCC relied heavily upon (and the Court of Appeal rejected) the landmark case of Zeran v. America Online, 958 F. Supp. 1124 (E.D.Va. 1997); affirmed by U.S. Court of Appeals, 4th Circuit, 129 F.2d 327 (1997); certiorari denied. In Zeran, the courts applied § 230(c)(1) in holding AOL not liable for defamatory statement contained in posting in various AOL bulletin boards by an AOL subscriber. See, Court of Appeals opinion, and TLJ summary of Zeran v. AOL.

On July 18, 2006, the U.S. Court of Appeals (11thCir) issued its opinion [25 pages PDF] in Almeida v. Amazon.com. The District Court held that Amazon is immune under § 230 from Florida right of publicity and invasion of privacy claims for listing a book and picture in its web site. The Court of Appeals affirmed, but solely on state law grounds. It wrote that whether § 230 provides immunity against claims for violation of state intellectual property laws, including the right of publicity, misappropriation, and invasion of privacy, remains an open question. See, story titled "11th Circuit Addresses § 230 Interactive Computer Service Immunity and Amazon Book Listing" in TLJ Daily E-Mail Alert No. 1,413, July 19, 2006.

On March 24, 2004, the U.S. Court of Appeals (4thCir) issued its opinion [2 pages in PDF] in Noah v. AOL, affirming the opinion of the U.S. District Court (EDVa) that § 230 immunizes AOL from claims that it violated the Civil Rights Act of 1964 when it provided chat rooms in which subscribers mocked Noah's religious beliefs. See, story titled "4th Circuit Affirms That Section 230 Immunity Extends to Federal Civil Rights Action", in TLJ Daily E-Mail Alert No. 863, March 25, 2004.

On October 21, 2003, the U.S. Court of Appeals (7thCir) issued its opinion [12 pages in PDF] in Doe v. GTE. The District Court dismissed the complaint against a pair of interactive computer service providers (or ISPs) who had merely provided web hosting services to smut merchants who had surreptitiously videotaped the plaintiffs, and then sold the videotapes through their web sites. The Appeals Court affirmed. The Court also held that the ISPs are not liable under the Electronic Communications Privacy Act (ECPA) when their users sell videotapes that were made in violation of the ECPA. See, story titled "7th Circuit Interprets Section 230 Immunity and ECPA" in TLJ Daily E-Mail Alert No. 763, October 22, 2003.

On August 13, 2003, the U.S. Court of Appeals (9thCir) issued its opinion [12 pages in PDF] in Carafano v. Metrosplash.com, a case regarding application of Section 230 interactive computer service immunity to an online dating service. The District Court had held that the online dating service, which wrote the questionnaire to be used by persons who post their profiles, did not have § 230 immunity for a false posting, because it contributed to the content. The Appeals Court held that the service does have § 230 immunity. See, story titled "9th Circuit Applies Section 230 Immunity to Online Dating Service" in TLJ Daily E-Mail Alert No. 718, August 14, 2003.

On June 24, 2003, the U.S. Court of Appeals (9thCir) issued its opinion [41 pages in PDF] in Batzel v. Smith, a case involving the application of California's Anti-SLAPP statute to a suit alleging defamation on an internet listserv. The District Court denied a defendant's motion to dismiss under the Anti-SLAPP statute. The Appeals Court, relying upon the federal interactive computer service immunity provision of § 230(c)(1), vacated and remanded. See, story titled "9th Circuit Construes Section 230 Immunity in Suit Against Listserv Operator" in TLJ Daily E-Mail Alert No. 687, June 25, 2003. On December 3, 2003, the Appeals Court issued an order [16 pages in PDF] denying the petition for rehearing and the petition for rehearing en banc. See, story titled "9th Circuit Denies Petition for Rehearing En Banc in Section 230 Immunity Case" in TLJ Daily E-Mail Alert No. 792, December 4, 2003. Then, the Supreme Court denied certiorari. See, story titled "Supreme Court Denies Certiorari in Section 230 Immunity Case" in TLJ Daily E-Mail Alert No. 913, June 8, 2004.

See also, Blumenthal v. Drudge and AOL, in which AOL raised § 230(c)(1) as a defense to Sidney Blumenthal's claim that AOL was liable for alleged defamation of content provider Matt Drudge. The District Court granted AOL's Motion for Summary Judgment based on § 230. See, District Court opinion and TLJ summary of Blumenthal v. Drudge. And see, Ben Ezra, Weinstein, & Co. v. America Online Inc., 206 F.3d 980 (10th Cir. 2000), and Green v. America Online, 318 F.3d 465 (3d Cir. 2003).

State courts have also construed § 230. See, for example, Gentry v. eBay, Inc. (2002) 99 Cal.App.4th 816, holding that eBay is immunity from liability for negligence for auction items bearing fake autographs. See also, Doe v. America Online, Inc., Trial Court Case No. CL 97-631 AE; Decision: 1997 WL 374223 (Fla. Cir. Ct. June 26, 1997), holding that AOL was not liable for statements made by an AOL subscriber in an AOL chatroom. Plaintiff appealed to Florida's Fourth District Court of Appeals. The appeals court affirmed the trial court decision. See, trial court opinion, and appeals court opinion.

11/20. A grand jury of the U.S. District Court (SDNY) returned an eleven count indictment, which was unsealed on November 20, 2006, that charges Javed Iqbal and Saleh Elahwal with violation of the United Nations Participation Act, and providing support to terrorists, in connection with their providing satellite television broadcasts of al Manar, a television station owned by Hizballah, which the U.S. government has designated as a terrorist entity.

The Office of the US Attorney (OUSA) for the Southern District of New York stated in a release that "The indictment alleges that, through a company called HDTV Ltd., Iqbal and Elahwal conspired to broadcast Hizballah's TV station, Al Manar, to HDTV's customers from September 2005 through August 2006. ``Al Manar´´ means ``the beacon´´ in Arabic. In exchange, HDTV received payments of thousands of dollars from Al Manar. The indictment further alleges that Iqbal and Elahwal worked to provide electronic equipment relating to satellite television broadcasting to Hizballah through Al Manar."

The indictment contains two counts of providing material support to a foreign terrorist organization, in violation of 18 U.S.C. § 2339B, two counts of conspiracy to provide material support to a foreign terrorist organization, two counts of violation of the the United Nations Participation Act of 1945, which is codified at 22 U.S.C. § 287c, and five counts of conspiracy to violate the UN Participation Act.

Section 2339B provides, in part, that "Whoever knowingly provides material support or resources to a foreign terrorist organization, or attempts or conspires to do so, shall be fined under this title or imprisoned not more than 15 years, or both, and, if the death of any person results, shall be imprisoned for any term of years or for life. To violate this paragraph, a person must have knowledge that the organization is a designated terrorist organization (as defined in subsection (g)(6)), that the organization has engaged or engages in terrorist activity (as defined in section 212(a)(3)(B) of the Immigration and Nationality Act), or that the organization has engaged or engages in terrorism (as defined in section 140(d)(2) of the Foreign Relations Authorization Act, Fiscal Years 1988 and 1989)." (Parentheses in original.)

22 U.S.C. § 287c(a) provides, in part, that "Notwithstanding the provisions of any other law, whenever the United States is called upon by the Security Council to apply measures which said Council has decided, pursuant to article 41 of said Charter, are to be employed to give effect to its decisions under said Charter, the President may, to the extent necessary to apply such measures, through any agency which he may designate, and under such orders, rules, and regulations as may be prescribed by him, investigate, regulate, or prohibit, in whole or in part, economic relations or rail, sea, air, postal, telegraphic, radio, and other means of communication between any foreign country or any national thereof or any person therein and the United States or any person subject to the jurisdiction thereof, or involving any property subject to the jurisdiction of the United States. ..."

22 U.S.C. § 287c(b) provides, in part, that "Any person who willfully violates or evades or attempts to violate or evade any order, rule, or regulation issued by the President pursuant to subsection (a) of this section shall, upon conviction, be find not more than $10,000 or, if a natural person, be imprisoned for not more than ten years, or both ..."

This is the second set of charges against Iqbal. On August 22, 2006, the OUSA charged Iqbal by criminal complaint [2 pages in PDF] with one count of conspiracy to violate the International Emergency Economic Powers Act (IEEPA) in connection with the same activities. See, story titled "US Attorney in New York Prosecutes Provider of Hizballah TV Broadcasts" in TLJ Daily E-Mail Alert No. 1,438, August 24, 2006.

The August complaint alleged violation of 50 U.S.C. § 1705(b), which is the penalties section of the IEEPA, and 18 U.S.C. § 371, the federal conspiracy statute.

The present case is USA v. Javed Iqbal and Saleh Elahwal, U.S. District Court for the Southern District of New York, No. 06 CRIM 1054.

11/18. Attorney General Alberto Gonzales gave a speech at the U.S. Air Force Academy (USAFC) in Colorado Springs, Colorado. Gonzales, who attended the USAFC, defended the National Security Agency's (NSA) electronic surveillance program that the government has named "Terrorist Surveillance Program" and "TSP".

He said that "Common myths about the Terrorist Surveillance Program are that it is an invasion of privacy and an unlawful eavesdropping tool."

He said that this program "does not invade anyone's privacy, unless you are talking to the enemy in this time of war. It targets only international communications in which we have reasonable grounds to believe that one party is a member or agent of al Qaeda or an affiliated terrorist organization. The TSP is lawful. The President established the Program under both the authority given to him by Congress when it passed the Authorization for Use of Military Force in the wake of the 9/11 attacks, and by his authority under the Constitution."

He stated that it "serves as an essential early warning system, alerting us to the presence of al Qaeda operatives in the United States, and it operates with the speed and agility necessary to protect the nation. The Program does not violate any constitutional freedoms. History and law both confirm this. The Program is, in fact, nothing more than a modern-day version of the ``signals´´ intelligence that our country has gathered and relied upon in every conflict in our history, and that every nation has relied upon."

He pointed out that "During both World Wars, we intercepted telegrams in and out of the United States."

He also stated that this program "has proven to be one of our most effective tools in the war against terrorism. U.S. intelligence officials have confirmed that the program has helped stop terrorist attacks and has saved American lives."

11/20. Henry Paulson, the Secretary of the Treasury, gave a speech in New York, New York. He said that Section 404 of the Sarbanes Oxley act should not be amended, but that it should be implemented in a more cost effective manner. He also called for reform of tort litigation.

Paulson and the Department of the Treasury do not have authority to implement Section 404. The Securities and Exchange Commission (SEC) and Public Company Accounting Oversight Board (PCAOB) do. Also, federal tort reform legislation is highly unlikely in a Democratic Congress.

Background on Section 404. The "Sarbanes-Oxley Act of 2002" was HR 3763 in the 107th Congress. It is now Public Law No. 107-204. Its main sponsors were Sen. Paul Sarbanes (D-MD) and Rep. Mike Oxley (R-OH).

The retirement of both Sen. Sarbanes and Rep. Oxley at the end of the 109th Congress removes an obstacle to amending the act. However, the Democratic takeover of both the House and Senate reduces the possibility of amending the statute.

Section 404 is titled "Management assessment of internal controls". It provides, in full, as follows:

(a) RULES REQUIRED- The Commission shall prescribe rules requiring each annual report required by section 13(a) or 15(d) of the Securities Exchange Act of 1934 (15 U.S.C. 78m or 78o(d)) to contain an internal control report, which shall--
   (1) state the responsibility of management for establishing and maintaining an adequate internal control structure and procedures for financial reporting; and
   (2) contain an assessment, as of the end of the most recent fiscal year of the issuer, of the effectiveness of the internal control structure and procedures of the issuer for financial reporting.
(b) INTERNAL CONTROL EVALUATION AND REPORTING- With respect to the internal control assessment required by subsection (a), each registered public accounting firm that prepares or issues the audit report for the issuer shall attest to, and report on, the assessment made by the management of the issuer. An attestation made under this subsection shall be made in accordance with standards for attestation engagements issued or adopted by the Board. Any such attestation shall not be the subject of a separate engagement.

Small public technologies companies assert that Section 404, and the SEC's implementation of it, imposes huge burdens on them, with little benefit to investors. These arguments are supported by the May 8, 2006, Government Accountability Office (GAO) report [93 pages in PDF] titled "Sarbanes-Oxley Act: Consideration of Key Principles Needed in Addressing Implementation for Smaller Public Companies". See also, story titled "GAO Reports that Section 404 of Sarbanes Oxley Burdens Small Public Companies" in TLJ Daily E-Mail Alert No. 1,366, May 9, 2006.

Paulson's Comments on Section 404. Paulson (at right) said that "I do not believe we need new legislation to amend Sarbanes-Oxley. Instead, we need to implement the law in ways that better balance the benefits of the legislation with the very significant costs that it imposes, especially on small businesses."

He continued that "By far the single biggest challenge with Sarbanes-Oxley is section 404, which requires management to assess the effectiveness of a company's internal controls and requires an auditor's attestation of that assessment."

He said that "section 404 should be implemented in a more efficient and cost effective manner. It seems clear that a significant portion of the time, energy, and expense associated with implementing section 404 might have been better focused on direct business matters that create jobs and reward shareholders."

Paulson also praised Chris Cox, the Chairman of the SEC, and Mark Olson, the Chairman of the PCAOB. He said that Cox "recognizes the severity of this problem and is providing strong leadership to address it. He understands that it will take an aggressive forward-leaning approach to change the implementation of Section 404 and make it more efficient." Paulson added that Olson "shares Chris Cox's viewpoint."

Paulson also stated that "The SEC will soon seek comments on a new and much improved auditing standard aimed at ensuring that the internal control audit is top down, risk based, and focused on what truly matters to the integrity of a company's financial statements. This new guidance for both companies and their auditors should encourage common sense reliance on past work, and on the work of others. Moreover, the SEC and the PCAOB are going to provide tailored guidance for small companies that recognizes their specific characteristics and needs."

Litigation Reform. Paulson said that "reform of our legal system" is "crucial to the long-term competitiveness of our economy."

He said that "A sophisticated legal structure -- with property rights, contract law, mechanisms to resolve disputes, and a system for compensating injured parties -- is necessary to protect investors, businesses, and consumers. But our legal system has gone beyond protection."

He elaborated that "In 2004, U.S. tort costs reached a record quarter-trillion dollars, which is approximately 2.2 percent of our GDP. This is twice the relative cost in Germany and Japan, and three times the level in the UK."

He also noted that most tort compensation goes to administration, attorneys fees and defense costs. It is "effectively a tax paid by shareholders, employees, and consumers."

He concluded that "the broken tort system is an Achilles heel for our economy. This is not a political issue, it is a competitiveness issue and it must be addressed in a bipartisan fashion."

He did not comment on the possibility that a Democratic Party controlled Congress would ever enact any tort reform legislation.

11/16. Chris Cox, Chairman of the Securities and Exchange Commission (SEC), gave a speech to the International Organization of Securities Commissioners Technical Committee Conference in London, United Kingdom.

Cox (at left) said that "if companies and investors find the rules within a particular jurisdiction too restrictive, technology makes it easy for them to find another jurisdiction more to their liking."

He added that "in the information age ... Technology has made it possible for fraudsters and criminals anywhere in the world to play in whatever yard they wish, even though they're physically located across an ocean or on the other side of the planet. And the swindlers know that the regulators responsible for enforcing the rules can't pursue them outside the yard, let alone to the ends of the earth, because the regulator's power stops at its borders."

Cox argued that national regulators "have no choice but to cooperate" with each other. But, he added, there is an "opposite force at work pulling hard in the other direction. That is the temptation for regulators to relax their standards to attract investors and issuers, at the expense of the other jurisdictions -- with the result that the overall standard of regulatory quality suffers."

He said that "The way for each of us, as national regulators, to maintain robust investor protections while building healthy international markets is first, to adopt strong regulatory regimes at home that are cost-justified; and second, to cooperate with our fellow securities regulators abroad to implement agreed-upon regulatory objectives on a global level. We've got to constantly re-examine our regulatory systems from top to bottom, and capitalize on every opportunity for mutual improvement. And we must also continually reassess the costs and benefits of our regulations as they are actually applied.

11/19. President Bush met with Russian President Vladimir Putin at the APEC meeting in Hanoi, Vietnam. Bush said that "Today, Vladimir and I are pleased to report that after a long set of negotiations, Representative Gref and Ambassador Schwab have signed agreements that will be good for the United States and good for Russia -- and that is we support Russia's accession into the WTO."

Bush added that "this is a good agreement for the United States. And it's an equally important agreement for Russia. And it's a good agreement for the international trading community." See, transcript of ceremony.

The Office of the US Trade Representative (OUSTR) issued a release that states that USTR Susan Schwab (at right) and Russian Minister of Trade and Economic Development German Gref "signed a bilateral market access agreement that is an important element in Russia’s accession to the" World Trade Organization (WTO).

The OUSTR did not release the text of any agreement. However, it did issue a series of short releases that offer its description of the some of the content the agreement.

The OUSTR added that "Congress will need to enact legislation terminating application of the Jackson-Vanik amendment to Russia and authorizing the grant of permanent normal trade relations (PNTR) to Russia."

Intellectual Property. The OUSTR issued a release [3 pages in PDF] regarding intellectual property rights (IPR). It states that the US and Russia "have agreed on a binding blueprint for actions that Russia will take to address piracy and counterfeiting and improve protection and enforcement of" IPR. The OUSTR did not release the text of any "binding blueprint". Nor did it explain what a "binding blueprint" is.

The OUSTR release states that this item "sets the stage for further progress on IPR issues in Russia through the next phase of multilateral negotiations, during which the United States and other WTO members will examine Russia's IPR regime."

The OUSTR item adds that this item "requires action" on "fighting optical disc piracy", "fighting Internet piracy", and bringing Russian laws into compliance with the WTO TRIPs agreement, among other things.

It adds that "The United States and Russia agreed on the objective of shutting down websites that permit illegal distribution of music and other copyright works. The agreement names the Russia-based website allofmp3.com as an example of such a website."

IT Products and Software. The OUSTR also announced in a release [2 pages in PDF] that the US and Russia have "reached agreement in principle on a bilateral market access agreement", that addresses, among other things, IT and communications products. The OUSTR did not release the text of any market agreement.

This release states that "Russia will join the Information Technology Agreement (ITA). Information technology products from computers to telecommunications equipment will enter the Russian market duty-free in accordance with the ITA. Russia will implement 95 percent of its ITA commitments within three years of accession."

The OUSTR's release also addresses "technology products with encryption (mobile phones, operating systems, and a wide variety of products)". (Parentheses in original.)

It states that "Russia will set up a streamlined interim system for the import of goods with encryption capability within three months after signing the U.S.-Russia WTO bilateral market access agreement."

It continues that "Russia will implement transparent, nondiscriminatory, and WTO-compatible procedures and will allow import of most commercially traded information technology and telecommunications goods after a one-time notification, or in some cases, with no encryption-related requirements at all. After evaluating the operation of this interim system, Russia will develop final regulations. Russia and the United States will continue to consult on the treatment of goods with encryption and the operation of its import procedures to further liberalize trade in this area."

Telecommunications. The OUSTR also issued another release [2 pages in PDF] regarding a bilateral market access agreement on services between the US and Russia. The OUSTR did not release the text of any agreement.

The OUSTR's release states that "Russia will open its telecommunications services market both on a facilities and non-facilities basis to all foreign suppliers. Sectoral coverage is comprehensive and Russia will allow foreign telecommunications companies to operate as 100 percent foreign-owned enterprises. Russia also accepted the pro-competitive WTO Basic Telecommunications Reference Paper establishing an independent regulator, obligations to prevent anti-competitive behavior by the dominant supplier, transparency obligations and interconnection requirements."

It also states that "Russia’s commitments for business services will ensure market access and national treatment for a wide variety of professions, including lawyers, ..."

The House will next meet on Tuesday, December 5, 2006, at 10:00 AM. See, Republican Whip Notice. See also, HConRes 496.

The Senate will next meet on Monday, December 4, 2006. See also, HConRes 496.

12:00 NOON - 1:15 PM. The DC Bar Association will host a seminar titled "50 Hot Technology Tips, Tricks & Web Sites for Lawyers". The speaker will be Reid Trautz. The price to attend ranges from $15 to $20. 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) Common Carrier Committee will host a brown bag lunch. This is a planning meeting. RSVP to Myra Creeks at Myra dot Creeks at att dot com. Location: AT&T, 2nd floor, 1133 21st Street, NW.

EXTENDED TO DECEMBER 21. Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Further Notice of Proposed Rulemaking (FNPRM) regarding its media ownership rules. The FCC adopted this FNPRM on July 21, 2006, and released the text [36 pages in PDF] on July 24, 2006. See also, story titled "FCC Adopts FNPRM on Rules Regulating Ownership of Media" in TLJ Daily E-Mail Alert No. 1,397, June 22, 2006. This FNPRM is FCC 06-93 in MB Docket No. 02-277, MM Docket No. 01-235, MM Docket No. 01-317, MM Docket No. 00-244, and MB Docket Nos. 06-121. See, order [PDF] extending deadlines.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to National LambdaRail's petition for reconsideration or clarification of the FCC's Order establishing a rural telehealth and telemedicine pilot subsidy program. See, FCC Public Notice (DA 06-2279). The FCC's order is FCC 06-144 in WC Docket No. 02-60.

Deadline to submit comments to the Department of Commerce's Bureau of Industry and Security (BIS) regarding its annual review of the foreign policy based controls in its Export Administration Regulations (EAR), which are implemented pursuant to section 6 of the Export Administration Act of 1979, as expired. These rules regulate, among other things, the export of certain encryption and software products. The BIS states that it seeks comments on many topics, including "The likelihood that such controls will achieve the intended foreign policy purpose, in light of other factors, including the availability from other countries of the goods, software or technology proposed for such controls". See, notice in the Federal Register, October 23, 2006, Vol. 71, No. 204, at Pages 62065-62067.

Thanksgiving Day.

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

9:30 - 11:30 AM. The Federal Communications Commission's (FCC) WRC-07 Advisory Committee's Informal Working Group 4: Broadcasting and Amateur Issues will meet. See, notice [PDF]. Location: Pillsbury Winthrop Shaw Pittman, Conference Room 1G, 2300 N Street, NW.

10:00 AM. The Supreme Court will hear oral argument in Bell Atlantic v. Twombly, Sup. Ct. No. 05-1126. This case pertains to whether a complaint against a regional bell operating company (RBOC) that alleges parallel or similar behavior, and conspiracy to limit competition, but includes no allegations in support other than the similar or parallel conduct, is sufficient to survive a motion to dismiss. See also, amicus brief of the Office of the Solicitor General and story titled "Supreme Court Grants Cert in Bell Atlantic v. Twombly" in TLJ Daily E-Mail Alert No. 1,399, June 26, 2006. See also, Supreme Court docket. Location: 1 First St., NW.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to it further notice of proposed rulemaking (FNPRM) regarding maritime Automatic Identification Systems (AIS). The FCC adopted this item on July 20, 2006, and released it on July 24, 2006. It is FCC 06-108 in WT Docket No. 04-344. See, notice in the Federal Register, October 12, 2006, Vol. 71, No. 197, at Pages 60102-60106.

10:00 AM. The Supreme Court will hear oral argument in KSR International v. Teleflex, Sup. Ct. No. 04-1350. See also, amicus brief of the Office of the Solicitor General, and story titled "Supreme Court Grants Cert in Patent Obviousness Case" in TLJ Daily E-Mail Alert No. 1,399, June 26, 2006. See also, Supreme Court docket. Location: 1 First St., NW.

12:00 NOON - 1:30 PM. The Federal Communications Bar Association's (FCBA) Enforcement Practice Committee will host a brown bag lunch titled "Telemarketing Enforcement -- TCPA, CAN-SPAM, Do-Not-Call, Junk Fax and More". The speakers will be Kris Monteith (Chief of the FCC's Enforcement Bureau) and Lydia Parnes (Chief of the FTC's Bureau of Consumer Protection). For more information, contact Christi Shewman by November 27 at christi dot shewman at fcc dot gov. Location: Arnold & Porter, Paul Porter Room, 10th Floor, 555 12th Street, NW.

12:00 NOON - 1:30 PM. The DC Bar Association will host a panel discussion titled "Music Industry: Sound Recordings and Public Performance Rights". The speakers will include Gary Greenstein (SoundExchange), Daryl Friedman (Recording Academy), Jay Rosenthal (Recording Artists’ Coalition), and John Simson (SoundExchange). The price to attend ranges from $25 to $35. For more information, call 202-626-3463. See, notice. Location: D.C. Bar Conference Center, 1250 H Street NW, B-1 Level.

12:30 - 5:00 PM. The U.S. Chamber of Commerce will host an event titled "Next Steps for the American Trade Agenda". The speakers will include Susan Schwab (U.S. Trade Representative), former Rep. Cal Dooley (D-CA), and former USTR Clayton Yeutter. The U.S. Chamber notice states that the topics covered will include "What are the prospects for extension of Trade Promotion Authority and completion of additional free-trade agreements in the 110th Congress? What is the future of the multilateral trading system, the Doha Development Agenda, and the WTO's dispute settlement system? How can U.S. international economic policy confront the emerging challenge posed to international business by divergent views of antitrust and intellectual property law?" The price to attend ranges from $50 to $70. For more information, contact Maria Medrano at mmedrano at uschamber dot com or 202-463-5384. See, registration page. Location: U.S. Chamber 1615 H St., NW.

2:00 - 4:00 PM. The Federal Communications Commission's (FCC) WRC-07 Advisory Committee's Informal Working Group 3: IMT-2000 and 2.5 GHz Sharing Issues will meet. See, notice [PDF]. Location: FCC, 4th Floor South Conference Room (4-B516), 445 12th Street, SW.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to National LambdaRail's petition for reconsideration or clarification of the FCC's Order establishing a rural telehealth and telemedicine pilot subsidy program. See, FCC Public Notice (DA 06-2279). The FCC's order is FCC 06-144 in WC Docket No. 02-60.

9:30 AM - 12:00 NOON. The Department of Justice's (DOJ) Antitrust Division and the Federal Trade Commission (FTC) will hold another in their series of joint hearings on single firm conduct. The topic of this hearing is loyalty discounts. The witnesses will be Joseph Kattan (Gibson, Dunn & Crutcher), Thomas Lambert (University of Missouri School of Law), Barry Nalebuff (Yale University School of Management), and David Sibley (University of Texas at Austin). Location: Conference Room C, FTC's Conference Center, 601 New Jersey Ave., NW.

12:00 NOON - 2:00 PM. The DC Bar Association will host a panel discussion titled "A New Era for CFIUS". The speakers will include Jeanne Archibald (Hogan & Hartson), Joe Cwiklinski (Senate Banking Committee), Nova Daly (Department of the Treasury), Harvey Nathan (EADS North America Defense), and Keith Loken (Department of State). 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.

1:30 - 3:30 PM. The Federal Communications Commission's (FCC) WRC-07 Advisory Committee's Informal Working Group 2: Satellite Services and HAPS will meet. See, notice [PDF]. Location: Leventhal Senter & Lerman, 7th Floor Conference Room, 2000 K Street, NW.

1:30 AM - 4:00 PM. The Department of Justice's (DOJ) Antitrust Division and the Federal Trade Commission (FTC) will hold another in their series of joint hearings on single firm conduct. The topic of this hearing is loyalty discounts. The witnesses will be Daniel Crane (Cardozo School of Law), Timothy Muris (O'Melveny & Myers), Janusz Ordover (New York University), and Willard Tom (Morgan Lewis & Bockius). Location: Conference Room C, FTC's Conference Center, 601 New Jersey Ave., NW.

2:00 - 4:00 PM. The Department of State's (DOS) International Telecommunication Advisory Committee (ITAC) will meet to discuss proposed US contributions to the Permanent Executive Committee of the Organization of American States Inter-American Telecommunication Commission (COM/CITEL). See, notice in the Federal Register, October 31, 2006, Vol. 71, No. 210, at Page 63828. Location: undisclosed.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Notice of Inquiry [37 pages in PDF] regarding preparation of its annual report to the Congress regarding the status of competition in markets for the delivery of video programming. This NOI is FCC 06-154 in MB Docket No. 06-189. The FCC adopted this NOI at an October 12, 2006, meeting, and released it on October 20, 2006. See, stories titled "FCC Adopts NOI Regarding Video Competition" in TLJ Daily E-Mail Alert No. 1,467, October 12, 2006, and "FCC Releases NOI on Video Competition and Other Issues" in TLJ Daily E-Mail Alert No. 1,473, October 23, 2006. See also, notice in the Federal Register, November 17, 2006, Vol. 71, No. 222, at Pages 66946-66953.

9:00 AM - 10:30 PM. The DC Bar Association's Intellectual Property Law Section will host a seminar titled "Dilution Update". The speakers will include Roberta Horton (Arnold & Porter). The price to attend ranges from $15 to $25. For more information, call 202-626-3463. See, notice. Location: D.C. Bar Conference Center, 1250 H Street NW, B-1 Level.

9:30 AM. The Federal Communications Commission's (FCC) North American Numbering Council (NANC) will meet. See, notice in the Federal Register, November 8, 2006, Vol. 71, No. 216, at Pages 65520-65521. Location: FCC, Room TW-C305, 445 12th St., SW.

10:30 AM - 12:00 NOON. The Department of State's (DOS) International Telecommunication Advisory Committee (ITAC) will meet to discuss proposed U.S. contributions to the Committee on Information Services and Policy (CISP) and Working Party on the Information Economy (WPIE) meetings of the Organization for Economic Co-operation and Development (OECD). See, notice in the Federal Register, October 31, 2006, Vol. 71, No. 210, at Page 63828. Location: Room 2533A, Harry Truman Building.

12:15 PM. The Federal Communications Bar Association's (FCBA) Wireless Telecommunications Practice Committee will host a lunch. The topic will be "Analysts' Perspective of the AWS Auction". The speakers will include Rebecca Arbogast (Stifel Nicolaus) and Anna Maria Kovacs (Regulatory Source Associates). The price to attend is $15. See, registration form [PDF]. Registrations and cancellations are due by 12:00 NOON on November 28. Location: Latham & Watkins, 10th floor, 555 11th St., NW.

TIME? 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 loyalty discounts. Location?

TIME? The Federal Communications Commission's (FCC) North American Numbering Council (NANC) will hold a meeting. Location: ___.

Deadline to submit comments to the National Institute of Standards and Technology's (NIST) Computer Security Division regarding its Draft Special Publication 800-54 [57 pages in PDF], titled "Border Gateway Protocol Security".

9:30 AM - 12:00 NOON. The Department of State's International Telecommunication Advisory Committee will meet to discuss the US position on the International Telecommunications Union's (ITU) budget shortfalls and related matters. See, notice in the Federal Register, November 14, 2006, Vol. 71, No. 219, at Page 66362. Location: undisclosed.

Day one of a two day closed conference hosted by the International Research Forum on Monetary Policy. See, notice. Location: Federal Reserve Board.

11/20. The Government Accountability Office (GAO) released a letter [44 pages in PDF] to the Congress regarding "Suggested Areas for Oversight for the 110th Congress". One of its recommendations, discussed at page 16, is to "Enhance Computer Security and Deter Identity Theft".

11/20. The Government Accountability Office (GAO) released a report [28 pages in PDF] titled "Information Security: Agencies Need to Develop and Implement Adequate Policies for Periodic Testing". The report finds that "Agencies have not adequately designed and effectively implemented policies for performing periodic testing and evaluation of information security controls", and that this leaves "the agencies’ information and systems vulnerable to attack or compromise".

11/20. The Government Accountability Office (GAO) released a report [50 pages in PDF] titled "Managing Sensitive Information: DOJ Needs a More Complete Staffing Strategy for Managing Classified Information and a Set of Internal Controls for Other Sensitive Information".

11/17. John Kneuer, acting head of the National Telecommunications and Information Adminstration (NTIA), sent a letter to the Federal Communications Commission (FCC) Chairman Kevin Martin urging the FCC to expedite its action on the NTIA's August 4, 2006, petition for rulemaking [19 pages in PDF] regarding amending the National Table of Frequency Allocations to allow federal earth station to operate with non-federal satellites on a co-primary basis consistent with the regulatory status afforded commercial operations. This letter discusses President Bush's U.S. National Space Policy [10 pages in PDF], dated August 31, 2006. Kneuer wrote that this space policy "sets forth the United States’ commitment to encourage and facilitate a growing and entrepreneurial U.S. commercial space sector.  Towards that end, the Space Policy states that the United States Government will use U.S. commercial space capabilities to the maximum practical extent.  To accomplish this objective, the Space Policy provides that the United States will seek spectrum regulatory status under U.S. domestic regulations for government owned and operated earth stations operating through commercial satellites consistent with the regulatory status afforded commercial operations and with the allocation status of the satellite service." See also, September 15 comment [6 pages in PDF] of Hispasat SA, September 18 comment [8 pages in PDF] of the Satellite Industry Association, September 18 comment [5 pages in PDF] of Lockheed Martin, and October 3 comment [5 pages in PDF] the Fixed Wireless Communications Coalition. This FCC proceeding is RM-11341.

11/15. The American Association of Publishers (AAP) announced in a release that "Books sales were up in September for most of the categories". It added that e-book sales "saw an increase of 1.3 percent for the month ($2.4 million); the category also posted an increase of 21.2 percent for the year." In addition, "Audio Book sales were up by 4.3 percent for the month with sales totaling $16.4 million; sales for the year were down by 22.2 percent."

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