12/7. The U.S. District Court (DC) issued a Memorandum [4 pages in PDF] in Aharonian v. Gutierrez explaining its dismissal of the complaint.

The Secretary of Commerce appointed Margaret Peterlin to the position of Deputy Under Secretary of Commerce for Intellectual Property and Deputy Director of the U.S. Patent and Trademark Office (USPTO). She previously worked for former House Speaker Denny Hastert (R-IL). Before that she worked for former House Majority Leader Dick Armey (R-TX).

The relevant statute, 35 U.S.C. § 3(b), provides that the person appointed to this position shall have "a professional background and experience in patent or trademark law".

Gregory Aharonian is the publisher of the Internet Patent News Service.

Aharonian and David Pressman filed a complaint in the District Court alleging violation of this statute, as well as the Administrative Procedure Act (APA). The District Court held that § 3(b) creates no private right of action. It also held that while the APA does create a private right of action, § 3(b) appointments are not reviewable under the APA.

Jon Dudas, the head of the USPTO, whose background is also working on Capitol Hill, stated in a release that "I am pleased the U.S. District Court dismissed this meritless lawsuit. Margaret Peterlin is well qualified to serve in her capacity as Deputy Under Secretary, and we at the Department continue to support her in fulfilling the duties of her office."

This case is Gregory Aharonian, et al. v. Carlos Gutierrez, U.S. District Court for the District of Columbia, D.C. No. 07-1224 (JR), Judge James Robertson presiding.

12/6. The Department of Justice's (DOJ) Antitrust Division filed a complaint in U.S. District Court (DC) against coaxial cable maker CommScope and Andrew to block CommScope's acquisition of Andrew. The parties simultaneously announced a settlement that requires CommScope to divest its interest in Andes, another coaxial cable maker.

CommScope announced the planned acquisition on June 27, 2007. See, release.

The complaint alleges violation of Section 7 Clayton Act, regarding acquisitions the effect of which "may be substantially to lessen competition, or to tend to create a monopoly", which is codified at 15 U.S.C. § 18. It also alleges violation of Section 8 of the Clayton Act, regarding interlocking directorates, which is codified at 15 U.S.C. § 19.

The complaint states that "CommScope is a large manufacturer of wire and cable products used by, among others, telecommunications companies. CommScope is the leading manufacturer of drop cable in the United States, with a market share of approximately 60 to 70 percent. ``Drop cable´´ is coaxial cable used by cable television providers to connect their transmission systems to their customers' premises and equipment inside the customers' premises." It adds that Andrew owns an interest in Andes Industries, Inc., subsidiaries of which make drop cable.

The DOJ stated in a release that "As the transaction was originally structured, CommScope, by acquiring Andrew, would have obtained Andrew's 30 percent ownership interest in Andes, including the right to appoint members to Andes' board of directors and substantial governance rights. CommScope and a subsidiary of Andes, PCT International Inc. (PCT), are currently two of only four companies that provide drop cable to cable television companies in the United States."

CommScope stated in a release on December 6 that under the settlement "the companies will be required to divest certain non-core assets, including Andrew's non-controlling minority interest in Andes Industries, Inc., a supplier of last-mile products for broadband communications networks, and other related assets."

It added that the proposed transaction "was cleared by the European Commission as well as other required regulatory authorities. The Andrew stockholders will vote on the transaction on December 10, 2007. CommScope expects to close the transaction by year end, subject to the satisfaction of other customary conditions."

See, the Competitive Impact Statement and proposed Final Judgement, also filed on December 6.

This case is USA v. CommScope, Inc. and Andrew Corporation, U.S. District Court for the District of Columbia, D.C. No. 1:07-cv-02200, Judge Royce Lamberth presiding.

12/6. Michael Chertoff (Secretary of Homeland Security) and Janet Napolitano (Governor of the state of Arizona), announced, signed, and released a Memorandum of Agreement (MOA) [5 pages in PDF] regarding implementation of the REAL ID Act. See, transcript of signing ceremony.

This MOA provides that "The State of Arizona shall be responsible for: Taking steps to become REAL ID compliant as soon a practicable after the REAL ID final rulemaking is published." The MOA does not provide any federal funding to Arizona.

Napolitano stated that this MOA "creates a new type of driver's license that will be added to the current type of driver's license we have in Arizona. This new driver’s license will satisfy the requirements of the Western Hemisphere Travel Initiative. It will be designed to meet the requirements as soon as practicable of REAL ID."

Chertoff said that there is an "accelerating consensus among the states about the importance of having these kinds of licenses. In addition to our agreement with Arizona, we've got agreements with Washington, Vermont and New York on enhanced driver’s licenses, and we're far along in discussions with Texas, California and Michigan and some other states."

He also said that "the American public is rightly exercised over the question of people who are unauthorized to work who are nevertheless working. And the challenge that we’ve had is to find a way to give employers a tool that is reasonable, secure and efficient, in terms of identifying who’s authorized to work and who’s not authorized to work, and eventually REAL ID can perform that function".

12/5. The Federal Trade Commission (FTC) filed a complaint [8 pages in PDF] in U.S. District Court (NDCal) against Various, Inc. alleging violation of Section 5 of the Federal Trade Commission Act (FTC Act) in connection with its using spyware to caused "consumers, including minors, to view unsolicited sexually explicit online advertisements" for porn services.

Section 5 of the FTC Act, which is codified at 15 U.S.C. § 45, provides in part that "Unfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce, are hereby declared unlawful."

The complaint alleges that "Defendant, directly or through marketing partners acting on its behalf, including but not limited to its marketing affiliates, have used ad-serving software, often referred to as ``spyware´´ or ``adware,´´ that has been installed on consumers' computers, often without consumers' knowledge or consent, to cause Defendant's sexually explicit, full-screen advertisements to ``pop-up´´ on consumers' computer screens. These advertisements contain graphic images of fully or partially nude persons exhibiting their ..."

It alleges that "this unsolicited distribution of unwanted sexually explicit advertisements is an unfair act or practice in violation of Section 5 of the FTC Act."

The FTC and Various simultaneously settled this case. The Stipulated Final Order for Permanent Injunction [13 pages in PDF] enjoins Various and its marketing partners from using pop-up ads that contain "unsolicited sexually explicit material".

The injunction also imposes monitoring, reporting, and record keeping requirements on Various. See also, FTC release.

This case is FTC v. Various, Inc., U.S. District Court for the Northern District of California, San Jose Division.

12/7. Macrovision stated in a release that it and Gemstar-TV Guide International "have signed a definitive agreement for Macrovision to acquire Gemstar-TV Guide in a cash and stock transaction". Macrovision added that this transaction requires the "approval by two-thirds of the outstanding shares of Gemstar-TV Guide common stock, and a majority of the shares of Macrovision common stock voting at the special meetings to be held in connection with the transaction. News Corporation, which owns approximately 41% of the Gemstar-TV Guide common stock, has agreed to vote in favor of the transaction at the meeting of Gemstar-TV Guide stockholders to be held in connection with the proposed transaction, subject to the terms of a voting agreement."

12/7. The Government Accountability Office (GAO) released a report [97 pages in PDF] titled "International Trade: An Analysis of Free Trade Agreements and Congressional and Private Sector Consultations under Trade Promotion Authority". The Congress gave the President trade promotion authority in 2002. This authority lapsed in July of this year.

12/6. The Federal Communications Commission (FCC) released its Report [72 pages in PDF] to the Congress in its proceeding titled "In the Matter of Section 257 Triennial Report to Congress Identifying and Eliminating Market Entry Barriers For Entrepreneurs and Other Small Businesses". 47 U.S.C. § 257 requires that the FCC prepare this report every three years. This report is FCC 07-181.

12/4. The Copyright Office published a notice in the Federal Register announcing that royalty rates will be adjusted for satellite carriers for the accounting period commencing January 1, 2008, based on changes in the Consumer Price Index. See, Federal Register, December 4, 2007, Vol. 72, No. 232, at Pages 68198-68199.

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The House will meet at 3:00 PM in pro forma session only. See, Rep. Hoyer's schedule for the week.

The Senate will meet at 3:00 PM. It will resume consideration of HR 2419 [LOC | WW], the farm bill. The Senate may take up FISA reform legislation later in the week.

9:00 AM - 12:30 PM. The Copyright Alliance will host a half day event titled "Copyright and the University: An Academic Symposium". Breakfast will be served from 8:00 AM. The program will begin at 9:00 AM. Patrick Ross (CA Executive Director) will speak. Rep. Rep. Keller (R-FL) is scheduled to give the keynote address. The first panel will begin at 10:00 AM. The speakers will be Warren Arbogast (Boulder Management Group), Michael Einhorn (Consor), James Gibson (University of Richmond School of Law), Peter Jaszi (American University Law School), and Michael Ryan (George Washington University Law School). The moderator will be Andrew Noyes (National Journal's Technology Daily). The second panel will begin at 11:20 AM. The speakers will be Patricia Aufderheide (American University), Cheryl Elzy (Illinois State University), Lee Hollaar (University of Utah), Nathan Perry (University of Utah), Marybeth Peters (Register of Copyrights). The moderator will be Paul Sweeting (ContentAgenda). See, notice and agenda. Location: George Washington University, Jack Morton Auditorium, Media and Public Affairs Building, 805 21st St., NW.

9:00 AM. The American Antitrust Institute (AAI) will host an event titled "Invitational Symposium on the Future of Private Antitrust Enforcement". For more information, contact Sarah Frey at 202-408-7442. Location: Holeman Lounge, National Press Club, 13th Floor, 529 14th St. NW.

Day one of a two day workshop hosted by the Federal Trade Commission (FTC) titled "Security in Numbers: SSNs and ID Theft". See, workshop web site. Location: FTC Conference Center, 601 New Jersey Ave., NW.

2:00 PM. Deadline to file amicus briefs on the merits in support of the respondent (LG Electronics) with the Supreme Court of the US (SCUS) in Quanta Computer v. LG Electronics, a patent infringement case. See, story titled "Supreme Court Grants Certiorari in Patent Exhaustion Case" in TLJ Daily E-Mail Alert No. 1,647, September 27, 2007.

Deadline to submit comments to the Copyright Royalty Judges regarding their proposed regulations that set the rates and terms for the use of sound recordings in transmissions made by new subscription services and for the making of ephemeral recordings necessary for the facilitation of such transmissions for the period commencing from the inception of the new subscription service through December 31, 2010. See, notice in the Federal Register: November 9, 2007 Vol. 72, No. 217, at Pages 63532-63535.

The House will meet at 10:30 AM for morning hour, and at 12:00 NOON for legislative business. It is scheduled to consider numerous items under suspension of the rules, including HR 2601 [LOC | WW], "Do-Not-Call Registry Fee Extension Act of 2007", and HR 3541 [LOC | WW], the "Do-Not-Call Improvement Act of 2007". Votes will be postponed at least until 6:30 PM. See, Rep. Hoyer's schedule for the week.

Day two of a two day workshop hosted by the Federal Trade Commission (FTC) titled "Security in Numbers: SSNs and ID Theft". See, workshop web site. Location: FTC Conference Center, 601 New Jersey Ave., NW.

10:00 AM. The Senate Homeland Security and Government Affairs Committee (SHSGAC) will hold a hearing titled "E-Government 2.0: Improving Innovation, Collaboration, and Access". See, notice. Location: Room 342, Dirksen Building.

1:00 - 3:00 PM. The Architectural and Transportation Barriers Compliance Board's (ATBCB) Telecommunications and Electronic and Information Technology Advisory Committee will meet by teleconference. See, notice in the Federal Register, November 1, 2007, Vol. 72, No. 211, at Pages 61827-61828.

Deadline to submit comments to the Federal Communications Commission (FCC) in response to FCC Chairman Kevin Martin's proposal [PDF] for revisions to the FCC's obsolete rules regulating ownership of newspapers and broadcast media. See, FCC's MB Docket No. 06-121, and story titled "Martin Releases Media Ownership Proposal" in TLJ Daily E-Mail Alert No. 1,675, November 13, 2007.

The House will meet at 10:00 AM for legislative business. The agenda for the week includes consideration of the intelligence authorization conference report and the Department of Defense authorization conference report. See, Rep. Hoyer's schedule for the week.

9:30 AM. Hugo Teufel (Chief Privacy Officer, Department of Homeland Security) will participate on a panel on the challenges of privacy, civil rights and civil liberties at an event hosted by the Homeland Defense Journal. Location: Omni Shoreham Hotel, 2500 Calvert St., NW.

12:00 NOON - 1:30 PM. The DC Bar Association will host a program titled "Communications Essentials - How Networks Work". The speakers will be Richard Hovey and Nick Alexander (both of the FCC). The price to attend ranges from free to $10. For more information, call 202-626-3463. See, notice. Location: DC Bar Conference Center, B-1 Level, 1250 H St., NW.

2:00 PM. The House Judiciary Committee's (HJC) Antitrust Task Force will hold a hearing titled "Media Consolidation: Impact on Minority Ownership and Localism". See, notice. Location: Room 2141, Rayburn Building.

3:00 - 5:00 PM. The Women's Bar Association of the District of Columbia's Communications Law Forum will host an event titled "Holiday Tea". The speaker will be Linda Greenhouse (New York Times). The price to attend ranges from $40 to $50. For more information, call Laura Mow at 202-508-5835. See, notice. Location: Crystal Ballroom, Willard Inter Continental Hotel, 1401 Pennsylvania Ave., NW.

? The Department of Homeland Security's (DHS) Data Privacy and Integrity Advisory Committee will meet.

Deadline to submit comments to the Department of the Treasury (DOT) and the Federal Reserve Board (FRB) regarding their proposed rules implementing the Unlawful Internet Gambling Enforcement Act of 2006 (UIGEA). See, notice in the Federal Register, October 4, 2007, Vol. 72, No. 192, at Pages 56680-56699.

The House will meet at 10:00 AM for legislative business. See, Rep. Hoyer's schedule for the week.

9:00 AM. The Securities and Exchange Commission (SEC) will host an event titled "International Financial Reporting Standards in the U.S. Roundtable". Location: SEC, Auditorium (Room L-002), 100 F St., NE.

10:00 AM. The Senate Commerce Committee (SCC) will hold an oversight hearing regarding the Federal Communications Commission (FCC). The witnesses will be the five Commissioners of the FCC. See, notice. Location: Room 253, Russell Building.

10:00 AM. The House Judiciary Committee's (HJC) Subcommittee on Courts, the Internet and Intellectual Property will hold a hearing on HR 4279, the "Prioritizing Resources and Organization for Intellectual Property Act of 2007". See, notice. Location: Room 2141, Rayburn Building.

2:00 - 5:00 PM. The Information Technology Association of America (ITAA) and the Information Technology -- Information Sharing and Analysis Center (IT-ISAC) will co-host a program titled "Incident Response and Management Roles, Responsibilities, and Planning in the IT Sector". See, notice and agenda. For more information, contact Liesyl Franz at lfranz at itaa dot org. Location: Room HC-5, Capitol Building.

6:00 PM. The Federal Communications Bar Association (FCBA) will host a panel discussion titled "Enforcement Of U.S. Patent Laws: International Activities, Standards For Patentability And Willfulness". This event qualifies for continuing legal education (CLE) credits. The speakers will be Joshua Turner, Karl Renner (Fish & Richardson) and Kevin Anderson (Wiley Rein). Location: Wiley Rein, 1776 K St., NW.

The House will meet at 9:00 AM for legislative business. See, Rep. Hoyer's schedule for the week.

10:00 AM. The Department of State's (DOS) Telecommunication Advisory Committee (ITAC) will meet as ITAC Study Group B to prepare advice on U.S. positions for the meetings of the Study Group of the International Telecommunication Union -- Telecommunication Standardization Sector (ITU-T). See, notice in the Federal Register, November 13, 2007, Vol. 72, No. 218, at Page 63951. Location: undisclosed.

12:15 - 1:30 PM. There will be a brown bag lunch titled "Media Ownership". The speakers will be Jane Mago (General Counsel, National Association of Broadcasters), Paul Nagle (Republican Chief Counsel, Senate Commerce Committee), Jennifer Schneider (Legislative Counsel, Rep. Rick Boucher (D-VA)), Neil Fried (Minority Senior Telecommunications Counsel, House Commerce Committee), and Christopher Day (Legislative Assistant, Sen. Bill Nelson (D-FL)). Location: NAB, 1771 N St., NW.

Deadline to submit comments to National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) regarding its DRAFT SP 800-39 [60 pages in PDF], titled "Managing Risk from Information Systems: An Organizational Perspective".

Deadline to submit comments to the Securities and Exchange Commission (SEC) regarding its proposed rules changes pertaining to electronic filings with the SEC. The SEC proposes that mutual funds and other companies seeking exemptions under the Investment Company Act of 1940 submit their applications electronically, thus making them available to the public on the internet via the SEC's Electronic Data Gathering, Analysis, and Retrieval (EDGAR) system. See, SEC notice [41 pages in PDF] and notice in the Federal Register, November 9, 2007, Vol. 72, No. 217, at Pages 63513-63523.

8:30 AM - 5:00 PM. Day one of a two day workshop hosted by the Department of Homeland Security's (DHS) Privacy Office titled "Closed Circuit Television: Developing Privacy Best Practices". See, notice in the Federal Register, November 13, 2007, Vol. 72, No. 218, at Pages 63918-63919. Location: Gallery Ballroom, Hilton Arlington Hotel, Arlington, VA.

9:00 AM. The Securities and Exchange Commission (SEC) will host an event titled "International Financial Reporting Standards in the U.S. Roundtable". Location: SEC, Auditorium (Room L-002), 100 F St., NE.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) regarding the Emergency Alert System (EAS). The FCC adopted this NPRM on May 31, 2007, and released text [75 pages in PDF] on July 12, 2007. It is FCC 07-109 in EB Docket No. 04-296. See, notice in the Federal Register, November 2, 2007, Vol. 72, No. 212, at Pages 62195-62198. See also, story titled "FCC Expands EAS Program" in TLJ Daily E-Mail Alert No. 1,589, May 31, 2007.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) regarding its program access and retransmission consent rules and whether it may be appropriate to preclude the practice of programmers to tie desired programming with undesired programming. The FCC adopted this NPRM on September 11, 2007, and released the text [144 pages in PDF] on October 1, 2007. It is FCC 07-169, in MB Docket No. 07-198. See, notice in the Federal Register, October 31, 2007, Vol. 72, No. 210, at Pages 61590-61603. See also, story titled "FCC Adopts R&O and NPRM Regarding Program Access Rules" in TLJ Daily E-Mail Alert No. 1,640, September 17, 2007.

December 10-14. Representatives of the U.S. government and the People's Republic of China (PRC) government will hold the 18th U.S.-China Joint Commission on Commerce and Trade (JCCT). See, USTR notice. Location: Beijing, PRC.

Tuesday, December 11. 8:30 AM - 3:00 PM. New York Metro Infragard will host a conference titled "Critical Infrastructure Protection in the Financial Services Sector". Greg Garcia (Department of Homeland Security's Assistant Secretary for Cybersecurity and Communications) will give the keynote speech at 11:20 AM. Registration is closed. See, agenda. Location: Federal Reserve Bank of New York, 33 Liberty St., New York, New York.

Thursday, December 13. 3:00 - 6:30 PM. The Federal Communications Bar Association (FCBA) and the Boston Bar Association will host an event with two panel presentations titled "Customer Proprietary Network Information & Privacy" and "current business and regulatory issues facing the New England telecommunications market". For more information, contact Stacey Parker at Stacey_Parker at Cable dot Comcast dot com or Michele Thomas at Michele dot Thomas at T-Mobile dot com or 973-451-8399. See, notice and registration page. Location: Nixon Peabody, 100 Summer Street, Boston, Massachusetts.