5/24. The Federal Communications Commission (FCC) released the agenda [5 pages in PDF] for its event on Thursday, May 31, 2007, titled "Open Meeting".

The FCC will continue its process of extending the FCC's legacy regulatory regime for telecommunications carriers to interconnected voice over internet protocol (VOIP) services. At this event, the FCC is scheduled to adopt a Notice of Proposed Rulemaking (NPRM) regarding mandating location tracking devices, and an Order adopting disability access rules, for interconnected VOIP services.

The NPRM pertains to E-911 location accuracy and automatic location identification for interconnected VOIP services. This is WC Docket No. 05-196 and CC Docket No. 94-102.

The FCC will also adopt a Report and Order (R&O) extending disability access rules to interconnected VOIP providers. This order will revise the FCC's rules implementing 47 U.S.C. § 255, regarding access by persons with disabilities, and its rules implementing 47 U.S.C. § 225, regarding Telecommunications Relay Services (TRS).

This order will be adopted in the FCC's omnibus IP enabled services proceeding, WC Docket No. 04-36, its proceeding titled "Access to Telecommunications Service, Telecommunications Equipment and Customer Premises Equipment by Persons with Disabilities" and numbered WT Docket No. 96-198, and its proceeding titled "Telecommunications Relay Services and Speech-to-Speech Services for Individuals with Hearing and Speech Disabilities", and numbered CG Docket No. 03-123.

The FCC will also adopt an Order regarding recommendations submitted by the Independent Panel Reviewing the Impact of Hurricane Katrina on Communications Networks. This is EB Docket No. 06-119 and WC Docket No. 06-63.

The FCC will adopt a Second Report and Order regarding the promotion of the "Next Generation Emergency Alert System". This is EB Docket No. 04-296.

The FCC will adopt a Report and Order and Declaratory Ruling defining physically inaccessible cable wiring as well as requesting carrier rights to access inside wire subloops in multiunit premises. This is CS Docket No. 95-184, MM Docket No. 92-260, and WC Docket No. 01-338.

Finally, the FCC will adopt a NPRM regarding market modifications for purpose of satellite and cable carriage of television broadcast stations.

This event is scheduled for 9:30 AM on Thursday, May 31, 2007 in the FCC's Commission Meeting Room, Room TW-C305, 445 12th Street, SW. The event will be webcast by the FCC. The FCC does not always consider all of the items on its published agenda. The FCC sometimes adds items to the agenda without providing the "one week" notice required 5 U.S.C. § 552b. The FCC does not always start its events at the scheduled time, or at all. The FCC usually does not release at its events copies of the items that it adopts at its events. The FCC has not always written the items that it adopts at its events.

5/22. The Information Technology and Innovation Foundation (ITIF) released a report [PDF] titled "Patents Pending: Patent Reform for the Innovation Economy". It was written by the ITIF's Julie Hedlund.

The report states that there are three problems with the current U.S. patent system. First, it is "rife with delay". Second, the U.S. Patent and Trademark Office (USPTO) "has issued too many poor quality patents", as has been exposed by the Blackberry litigation. Third, there is the "increase in patent litigation and awards, which impose a significant tax on the U.S. innovation system."

The report further states that HR 1908 [ LOC | WW | PDF] and S 1145 [LOC | WW], the "Patent Reform Act of 2007", introduced in April of this year, "would provide significant needed reforms".

The report recommends reforms, many of which are addressed in HR 1908 and S 1145, and some of which are in another bill. See, story titled "Summary of Patent Reform Act of 2007" in TLJ Daily E-Mail Alert No. 1,567, April 19, 2007. See also, stories in the same issue titled "Patent Reform Act of 2007 Introduced" and "Reaction to the Patent Reform Act of 2007". And see, story titled "House Subcommittee Approves Patent Bill" in TLJ Daily E-Mail Alert No. 1,582, May 16, 2007.

First, the report recommends that the Congress should end the diversion of USPTO user fees to subsidize other government programs. This is the subject of a separate bill, HR 2336 [LOC | WW].

The report recommends "Giving the PTO regulatory authority to raise fees".

It recommends "Requiring third parties submitting prior art to include statements of relevance".

It also recommends "Creating a post-grant opposition process to be conducted by the PTO". There is a post grant opposition process in Section 6 of HR 1908 and S 1145. However, the nature of this process is currently one of the most controversial topics covered by the bills.

The report asserts that these proposals, if implemented, would enable the USPTO to hire more patent examiners, reduce backlogs, and give examiners more time to examine complex applications. It adds that this would also give applicants incentives to provide more relevant statements and encourage public participation in reducing questionable patents.

The report contains other recommendations. It proposes requiring "plaintiffs to provide clear and convincing evidence that defendants acted ``reprehensibly´´ in order to show willful infringement". (See, Section 5 of HR 1908 and S 1145.)

It proposes that courts "apply a reasonable royalty only to the economic value of the patent’s contribution over the prior art and not on the entire market value of the infringing product". (See, Section 5 of HR 1908 and S 1145.)

It proposes a venue requirement. Patent owners should be required to "file cases in the district where the defendant has committed acts of infringement and has a regular place of business". (See, Section 3 of HR 1908 and S 1145.)

It proposes a change from the first to invent to the first to file system. (See, Section 3 of HR 1908 and S 1145.)

Finally, it proposes to apply the 18-month publication requirement to all applications. (See, Section 9 of HR 1908 and S 1145.)

5/15. The U.S. District Court (WDWash) released its opinion [25 pages in PDF] in Gordon v. Virtumundo, a private action brought under the CAN-SPAM Act by recipients of e-mail against senders of e-mail. The District Court granted summary judgment to the senders.

The Court held that the recipients have no standing under the federal CAN-SPAM Act because they have not been "adversely affected" within the meaning of the statute. The Court held that consumer burdens of spam are insufficient. The recipient must be adversely affected in an manner affecting service providers, such as network functioning, bandwidth usage, increased demands for personnel, and new equipment needs. The District Court also held that the recipients' related state law claim is preempted by the CAN-SPAM Act.

James Gordon and Omni Innovations, LLC filed a complaint in U.S. District Court against Virtumundo, Inc. and Adknowledge, Inc. alleging violation of the CAN-SPAM Act of 2003, which is codified at 15 U.S.C. §§ 7701–7713, as well as several state law claims.

Standing to Sue Under the CAN-SPAM Act's Private Right of Action. The District Court held that the plaintiffs in this action have no standing to bring CAN-SPAM claims.

The CAN SPAM Act does provide a private right of action. However, it is limited. 15 U.S.C. § 7706(g) provides that "A provider of Internet access service adversely affected by a violation of" certain sections of the Act "may bring a civil action in any district court of the United States ... to enjoin further violation by the defendant ... or ... to recover damages". The statute does not provide clear guidance as to the meaning of "internet access service" (IAS) or "adversely affected".

The Court noted that the plaintiff James Gordon is an individual, and the registrant of an internet domain to which e-mail was sent by the defendants. The other plaintiff, Omni Innovations, is Gordon's business, which is engaged in the business of software development and suing spammers. Omni leases server space from GoDaddy. The Court wrote that "Plaintiffs do not have physical control over the server ``box,´´ do not maintain or configure it, and have, in fact, never seen it." However, the plaintiffs operate a web site, and provide free e-mail accounts to a few people.

The Court also noted that the burden of spam sent to plaintiffs is borne by GoDaddy and Verizon. It wrote that "Plaintiffs undisputedly have suffered no harm related to bandwidth, hardware, Internet connectivity, network integrity, overhead costs, fees, staffing, or equipment costs, and they have alleged absolutely no financial hardship or expense due to e-mails they received from Defendants."

The Court reviewed the legislative history of the enactment of the CAN-SPAM Act, and concluded that "First and foremost, the plain statutory language requiring that (1) an IAS (2) suffer “adverse effect” is confirmed. Specifically, the definition of an IAS ought to be considered in conjunction with the harm caused to IASs (or ISPs as Congress alternately refers to them) when trying to divine Congress’s intent. The most significant harms enumerated by Congress were ISP- or IAS-specific, going well beyond the consumer-specific burden of sorting through an inbox full of spam. These harms to IASs or ISPs relate to network functioning, bandwidth usage, increased demands for personnel, and new equipment needs, which eventually cost consumers." (Parentheses in original.)

The Court continued that "Because these harms were defined in terms of Internet access service providers, and because standing was conferred only on IASs (not consumers), it follows that such harms must be (1) possible and (2) actually occur, if a private entity is to have standing under the Act. ... (reiterating that the private right of action is for a “provider of Internet access service adversely affected by a violation,” not individual e-mail users and not IASs experiencing no adverse effects). Thus, even if an entity could meet the ill-defined and broad definition of an IAS, the “adverse effect” to that entity must be both real and of the type uniquely experienced by IASs for standing to exist." (Parentheses and emphasis in original.)

The District Court held that the plaintiff are not an "Internet access service adversely affected" within the meaning of the statute, and thus lack standing to sue under the CAN-SPAM Act. It reasoned that the plaintiffs qualify as an IAS. However, it added that they have not "borne the ISP- or IAS-specific burdens described by Congress. Therefore, because they cannot show ``adverse effect,´´ which is inherent in the definition of private standing under 15 U.S.C. § 7706(g)(1), it is irrelevant whether Plaintiffs are a true IAS. For the following reasons, the Court finds that Plaintiffs do not have CAN-SPAM standing regardless of whether they are an IAS."

Federal Preemption. The District Court also held that the related state law claim is preempted.

15 U.S.C. § 7707 provides that "This chapter supersedes any statute, regulation, or rule of a State or political subdivision of a State that expressly regulates the use of electronic mail to send commercial messages, except to the extent that any such statute, regulation, or rule prohibits falsity or deception in any portion of a commercial electronic mail message or information attached thereto."

The court followed the reasoning of the U.S. Court of Appeals (4thCir) in its opinion [PDF] in Omega World Travel, Inc. v. Mummagraphics, Inc., 469 F.3d 348 (2006). See also, story titled "4th Circuit Rules in CAN SPAM Act Case" in TLJ Daily E-Mail Alert No. 1,492, November 20, 2006.

(The District Court's slip opinion in the present case incorrectly refers to the Omega World Travel case as a 5th Circuit opinion.)

This case is James S. Gordon, et al. v. Virtumundo, Inc., et al., U.S. District Court for the Western District of Washington, at Seattle, D.C. No. 06-0204-JCC, Judge John Coughenour presiding.

5/16. Symantec filed eight complaints in U.S. District Court in California against Acortech, mPlus, Logical Plus, SoftwareOutlets.com, Rowcal Distribution, Global Impact, Inc., Directron.com, and eDirect Software alleging trademark infringement, copyright infringement, fraud, unfair competition, trafficking in counterfeit labels and documentation, and false advertising in connection with their alleged distribution of counterfeit Symantec software. Symantec provides security software and services. See, Symantec release.

The House will not meet. It will next meet at 2:00 PM on Tuesday, June 5.

The Senate will meet at 9:30 AM. It will resume consideration of S 1348, a bill related to immigration and other matters.

8:30 AM - 12:30 PM. Day three of a three day meeting of the U.S.-China Economic and Security Review Commission titled "The Extent of the Government's Control of China's Economy, and Implications for the United States". See, notice in the Federal Register, May 10, 2007, Vol. 72, No. 90, at Page 26688. Location: Room 385, Russell Building, Capitol Hill.

Deadline to submit comments to the Privacy and Civil Liberties Oversight Board (PCLOB) regarding its interim final rule that establishes procedures for the public to obtain information from the PCLOB under the federal Freedom of Information Act (FOIA). The comment deadline and the effective date are both May 25. See, notice in the Federal Register, April 10, 2007, Vol. 72, No. 68, at Pages 17789-17792.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its notice of proposed rulemaking (NPRM) regarding installation of smaller antennas by Fixed Service (FS) operators. This NPRM is FCC 07-38 in WT Docket No. 07-54. See, notice in the Federal Register, April 25, 2007, Vol. 72, No. 79, at Pages 20494-20499.

Memorial Day.

There will be no issue of the TLJ Daily E-Mail Alert.

The House will not meet on Monday, May 28 through Monday, June 4, due to the Memorial Day District Work Period. It will next meet on Tuesday, June 5. See, House 2007 calendar.

The House will not meet on Monday, May 28 through Friday, June 1, due to the Memorial Day District Work Period. See, Senate 2007 calendar.

The Federal Communications Commission (FCC) and other federal offices will be closed. See, Office of Personnel Management's (OPM) list of federal holidays and 5 U.S.C. § 6103.

2:00 PM. The Federal Communications Commission's (FCC) Advisory Committee on Diversity for Communications in the Digital Age will hold an organizational meeting. See, notice in the Federal Register, May 15, 2007, Vol. 72, No. 93, at Pages 27309-27310. Location: FCC, Commission Meeting Room (Room TW-C305), 445 12th St., SW.

Deadline to submit comments to eight federal regulatory agencies in response to their joint notice of proposed rulemaking (NPRM) regarding implementation of the privacy provisions of the Gramm Leach Bliley Act. This NPRM proposes a safe harbor model privacy form that financial institutions may use to provide disclosures under the privacy rules. The eight agencies are the Department of the Treasury's Office of the Comptroller of the Currency (OCC), Office of Thrift Supervision (OTS), Federal Reserve System (FRS), Federal Deposit Insurance Corporation (FDIC), National Credit Union Administration (NCUA), Federal Trade Commission (FTC), Securities and Exchange Commission (SEC), and Commodity Futures Trading Commission (CFTC). See, notice in the Federal Register, March 29, 2007, Vol. 72, No. 60, at Pages 14939-15000.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its request to update the record in its equal access and nondiscrimination proceeding. The FCC issued its original Notice of Inquiry (NOI) in February of 2002. See, notice in the Federal Register, March 28, 2007, Vol. 72, No. 59, at Pages 14554-14555. This proceeding is CC Docket No. 02-39. See also, Public Notice (DA 07-1071) [PDF] released on March 7, 2007.

2:00 - 4:30 PM. The National Telecommunications and Information Administration's (NTIA) Spectrum Management Advisory Committee (SMAC) will meet. It will hear recommendations of its Subcommittee on Technical Sharing Efficiencies; it will discuss its Spectrum Sharing Test-Bed Proposal; it will hear a report from its Subcommittee on Operational Sharing Efficiencies; and, it will hear public comment. See, notice in the Federal Register, May 15, 2007, Vol. 72, No. 93, at Pages 27294-27295. Location: Department of Commerce, Hoover Building, Room 4830, 1401 Constitution Ave., NW.

5:00 PM. Deadline to submit to the Bureau of Industry and Security (BIS) requests to make presentations at the BIS' Deemed Export Advisory Committee's (DEAC) meeting on June 19, 2007, from 8:30 AM to 12:30 PM, in Boston, Massachusetts. See, notice in the Federal Register, May 21, 2007, Vol. 72, No. 97, at Page 28467. The BIS regulates exports of dual use products, including computers, components, software and encryption products. Deemed exports include employment practices of companies that make dual use products.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Further Notice of Proposed Rulemaking (FNPRM) regarding its rules governing wireless licenses in the 698-806 MHz Band (700 MHz Band). See, notice in the Federal Register, May 2, 2007, Vol. 72, No. 84, at Pages 24238-24253. The FCC adopted its Report and Order and FNPRM [170 pages in PDF] on April 25, 2007, and released it on April 27, 2007. This FNPRM is FCC No. 07-72 in WT Docket No. 06-150, CC Docket No. 94-102, WT Docket No. 01-309, WT Docket No. 03-264, WT Docket No. 06-169, PS Docket No. 06-229, and WT Docket No. 96-86.

9:30 AM. The Federal Communications Commission (FCC) may hold an event titled "Open Meeting". The FCC does not always start its events at the scheduled time, or at all. See, agenda [PDF]. Location: FCC, Commission Meeting Room (TW-C305), 445 12th St., SW.

6:00 - 8:15 PM. The Federal Communications Bar Association's (FCBA) Transactional Practice Committee will host a continuing legal education (CLE) seminar titled "Counseling Communications Companies in Financial Trouble: Legal Issues and Operational Considerations". The speakers will be Stewart Block (FCC Office of General Counsel), Robert Irving (Leap Wireless), James Barker (Latham & Watkins), Evan Blum (Blum Advisors), and Gerard Catalanello (Thelen Reid Brown Raysman & Steiner). The price to attend ranges from $50 to $125. See, registration form [PDF]. Registrations and cancellations are due by 5:00 PM on Tuesday, May 29. Location: Wiley Rein, 1776 K St., NW.

TIME? The Department of Defense's (DOD) Defense Science Board Task Force on Integrating Sensor-Collected Intelligence will hold another of its closed sessions regarding intelligence, surveillance and reconnaissance systems. See, notice in the Federal Register, April 2, 2007, Vol. 72, No. 62, at Page 15659. Location: Science Applications International Corporation, 4001 N. Fairfax Drive, Arlington, VA.

9:00 AM -- 4:00 PM. The Federal Communications Commission (FCC) Public Safety and Homeland Security Bureau (PSHSB) will hold an event titled "Spectrum Policy and Management: Building Interoperable Public Safety Communications". See, FCC notice [PDF]. Location: FCC, Commission Meeting Room (TW-C305), 445 12th St., SW.

2:00 - 3:00 PM. The Information Technology Association of America (ITAA) will host a webcast continuing legal education (CLE) seminar titled "Outsourcing Remedies: Problematic Outsourcing Relationships: Is There a Cure?". See, notice.

TIME? The Department of Defense's (DOD) Defense Science Board Task Force on Integrating Sensor-Collected Intelligence will hold another of its closed sessions regarding intelligence, surveillance and reconnaissance systems. See, notice in the Federal Register, April 2, 2007, Vol. 72, No. 62, at Page 15659. Location: Science Applications International Corporation, 4001 N. Fairfax Drive, Arlington, VA.

9:00 AM - 12:00 NOON. The U.S. National Commission on Libraries and Information Science
(NCLIS) will meet. See, notice in the Federal Register, May 22, 2007, Vol. 72, No. 98, at Page 28714. Location: Room 642, Madison Building, Library of Congress, 101 Independence Ave., SE.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Microstrategy v. Business Objects, App. Ct. No. 2006-1320. Location: Courtroom 203.

10:00 AM - 12:00 NOON. The National Telecommunications and Information Administration (NTIA) will hold a public meeting regarding the Public Safety Interoperable Communications Grant Program. See, NTIA notice and notice in the Federal Register, May 22, 2007, Vol. 72, No. 98, at Pages 28685-28686. Location: Auditorium, Department of Commerce, 1401 Constitution Ave., NW.

5:00 PM. Deadline to submit applications to the National Institute of Standards and Technology (NIST) for funding for "basic research in the field of nanoscale electronics focused on developing the next logic switch beyond complementary metal oxide semiconductor (CMOS)". See, notice in the Federal Register , May 4, 2007, Vol. 72, No. 86, at Pages 25264-25267.

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