2/21. House Democrats and Republicans continued to posture, and assign blame, regarding electronic surveillance and legislation to revise the Foreign Intelligence Surveillance Act (FISA).

S 1927 [LOC | WW], the "Protect America Act", the temporary act enacted in August of 2007 to revise and expand federal wiretap, surveillance, and related authorities, expired on Saturday, February 16, 2008.

Rep. Steny Hoyer (D-MD), the House Majority Leader, stated in a release on February 21, 2008, that "I am disappointed that House and Senate Republicans apparently instructed their staffs not to participate in today’s bicameral meeting on modernizing the Foreign Intelligence Surveillance Act. The decision to not participate, coupled with their vote against an extension of their bill -- the Protect America Act -- only serves to reinforce the perception that Republicans prefer to have a political issue rather than a strong new FISA bill in place as quickly as possible. Certainly Republicans do not really believe that the role of the House is to simply rubberstamp whatever bills the Senate passes."

He added that "I am hopeful that Republicans will reconsider and join us in crafting a bipartisan FISA bill that protects our nation and our civil liberties. It is time to come together and work in the best interests of our nation’s security."

Rep. Roy Blunt (R-MO) stated in a release that "Democrats are saying today's meeting was called to craft bipartisan legislation that would update our antiquated foreign intelligence laws. This meeting was nothing more than an attempt to give the majority political cover for irresponsibly allowing the Protect America Act to expire. We already have a bi-partisan bill that was supported by more than two-thirds of the Senate and enjoys the support of a majority of Members of the House. The only remaining issue is how long House Democrat Leadership will delay before scheduling this bi-partisan bill for a vote."

He added that "House Democrats have had ample time. Now, I’m asking them to listen to a respected member of their own party and pass the bill Senator Jay Rockefeller and my good friend Kit Bond wrote -- and 66 of their Senate colleagues supported."

2/20. The U.S. Court of Appeals (7thCir) issued its opinion in Riviera Distributors v. Midwest Electronic Specialties, a software source code copyright infringement action in which the issue is whether the defendant is entitled to recover attorneys fees as the prevailing party pursuant to 17 U.S.C. § 505 when the case is dismissed, but not on the merits.

The Court of Appeals, reversing the District Court, held that the defendant is the prevailing party within the meaning of Section 505 and is entitled to attorneys fees.

Riviera Distributors, Inc. and Larry Hartley filed a complaint in U.S. District Court (CDIll) against Timothy Jones and Midwest Electronic Specialties, Inc. alleging copyright infringement in connection with the source code for a video poker game.

After a long period of inaction, the plaintiffs filed a motion to dismiss their complaint, without prejudice, pursuant to Rule 41(a)(2), Federal Rules of Civil Procedure. The District Court dismissed, but with prejudice. The defendants then sought an award of attorneys fees under Section 505.

The District Court denied the motion, because it "did not in any way pass on the merits of the litigation". The defendants brought the present appeal.

Section 505 provides in full that "In any civil action under this title, the court in its discretion may allow the recovery of full costs by or against any party other than the United States or an officer thereof. Except as otherwise provided by this title, the court may also award a reasonable attorney’s fee to the prevailing party as part of the costs."

See also, the Supreme Court's 1994 opinion in Fogarty v. Fantasy, which is also reported at 510 U.S. 517.

The Court of Appeals reversed.

It wrote that "Midwest obtained a favorable judgment. That this came about when Riviera threw in the towel does not make Midwest less the victor than it would have been had the judge granted summary judgment or a jury returned a verdict in its favor. Riviera sued; Midwest won; no more is required."

It wrote that the District Court's "approach supposes that the content of a judge's opinion is what makes a litigant a prevailing party", but Supreme Court precedent provides that a litigant prevails for the purpose of a fee shifting statute when it obtains a material alteration of the legal relationship of the parties.

The Court of Appeals also noted that "a consent decree confers prevailing-party status even though everyone denies liability as part of the underlying settlement, and the judge takes no position on the merits."

However, there were facts in this case that might be used to distinguish it from other Section 505 cases involving dismissals without determinations on the merits. The Court of Appeals wrote that "What remains is the question whether this is an appropriate occasion for fee shifting." It held that it is, but in part because this case "was filed in the teeth of an agreement not to sue" that was negotiated after related litigation between the same parties. That agreement provided for an alternative method of dispute resolution.

Hence, the Court of Appeals concluded that "Riviera came to the wrong forum. Agreements such as the one between Riviera and Midwest are designed to reduce the price tag of decision-making. By filing another suit, Riviera forced Midwest to bear the very expenses that the parties had agreed to avoid. The party responsible for creating excessive legal costs must bear them itself in the end."

This case is Riviera Distributors, Inc. and Larry Hartley v. Timothy Jones and Midwest Electronic Specialties, Inc., U.S. Court of Appeals for the 7th Circuit, App. Ct. Nos. 06-2043 and 06-3692, appeals from the U.S. District Court for the Central District of Illinois, D.C. No. 04-1430, Judge Michael Mihm presiding. Judge Frank Easterbrook wrote the opinion of the Court of Appeals, in which Judges Ripple and Kanne joined.

2/13. Rep. Ed Markey (D-MA) and Rep. Chip Pickering (R-MS) introduced HR 5353 [LOC | WW], the "Internet Freedom Preservation Act of 2008", a bill pertaining to network neutrality.

Introduction. Markey wrote in a statement that "The goal of this bipartisan legislation is to assure consumers, content providers, and high tech innovators that the historic, open architecture nature of the Internet will be preserved and fostered. H.R. 5353 is designed to assess and promote Internet freedom for consumers and content providers."

Markey (at right) continued that "Internet freedom generally embodies the notion that consumers and content providers should be free to send, receive, access and use the lawful applications, content, and services of their choice on broadband networks, possess the effective right to attach and use non-harmful devices to use in conjunction with their broadband services, and that content providers not be subjected to unreasonably discriminatory practices by broadband network providers."

The bill would do two things. First, it would amend the Communications Act of 1934 to state that "It is the policy of the United States" to maintain freedom to use broadband networks "without unreasonable interference from or discrimination by network operators", and to preserve and promote the open and interconnected nature of broadband networks. However, the bill does not set forth what the meaning or legal consequences of a policy statement is.

Second, the bill would require the FCC to conduct a study of broadband networks and services. While this is only a study, its findings might serve as the basis for future legislation. Also, it is notable that the bill would require the FCC go beyond its usual notice and comment procedure. The bill would require the five Commissioners to hold "summits" around the country.

Legislative History. Rep. Markey has been trying to get a network neutrality bill through the Congress for years. His previous proposals would have imposed mandates upon service providers. For example, he offered a network neutrality amendment during the Subcommittee markup of the telecommunications reform bill on April 5, 2006. It failed. He offered another amendment at the April 26 full Committee mark up. It failed. He offered an amendment during floor consideration. It failed by a vote of 152-269. See, Roll Call No. 239. Republicans voted 11-211. Democrats voted 140-58. The House passed a bill that summer, but without a network neutrality mandate. The Senate did not pass the bill, and it lapsed at the end of the 109th Congress.

On May 2, 2006, Rep. Markey introduced a stand alone bill, HR 5273 [LOC | PDF], the "Network Neutrality Act of 2006". The HCC took no action on the bill. See also, story titled "Rep. Markey Introduces Network Neutrality Bill" in TLJ Daily E-Mail Alert No. 1,363, May 3, 2006.

TLJ published an article at the beginning of the 110th Congress arguing, based upon an analysis of the membership of the House, the House Commerce Committee (HCC), and its Subcommittee on Telecommunications and the Internet, that "it is unlikely that a hard network neutrality mandate, such as those voted upon in the 109th Congress, and the recently introduced S 215, the ``Internet Freedom Preservation Act´´, could be approved by either the HCC or by the House, despite the change of party control and new members." See, story titled "Analysis of Support for a Network Neutrality Mandate in the House and Senate" in TLJ Daily E-Mail Alert No. 1,532, February 5, 2007.

Perhaps it is Rep. Markey's hope that by introducing a bill with a policy statement, rather than hard mandates for broadband service providers, his bill can win enough support for passage.

Bill Summary. Section 1 of the bill only provides its title.

Section 2 is a short and insignificant recitation of findings. That is, the Congress finds that the internet has "profound benefits" and is "vital to the economy", and that therefore, broadband markets should be studied.

Section 3 contains the policy statement. It begins: "Title I of the Communications Act of 1934 (47 U.S.C. 151 et seq.) is amended by adding at the end the following new section ..."

47 U.S.C. § 151 merely creates the FCC, and contains a very short and broad statement of the "purpose" in creating the FCC, namely, "to make available, so far as possible, to all the people of the United States, without discrimination on the basis of race, color, religion, national origin, or sex, a rapid, efficient, Nation-wide, and world-wide wire and radio communication service with adequate facilities at reasonable charges, for the purpose of the national defense, for the purpose of promoting safety of life and property through the use of wire and radio communications".

Section 151 and other sections make up Title I of the Communications Act. For example, there are also sections containing definitions, the composition and qualifications requirements for the Commission, duties of Commissioners, FCC staff, and related matters.

Title I does not pertain to any industry sector in the manner that, for example, Title II pertains to telecommunications. Nevertheless, the FCC acts as though Title I is a regulatory category that covers, among other things, information services. It also asserts an authority, arising under Title I, which it titles "ancillary jurisdiction".

The FCC has declared that broadband internet access services provided via cable modem, DSL, fiber optic cable, broadband wireless, and other platforms are Title I information services. Hence, they are not subject to Title II telecommunications regulations. However, the FCC has applied some components of the Title II telecommunications regime, such as 911/E911 and CALEA, to certain services that it has classified at Title I services, sometimes but not always under an ancillary jurisdiction argument.

The policy statement of this bill builds upon the Title I regulatory regime. Perhaps it is Rep. Markey's intent that this policy statement is a Congressional equivalent of an FCC declaratory ruling regarding regulation of Title I broadband services. Perhaps it is Rep. Markey's intent to clarify that the FCC possesses ancillary jurisdiction to regulate Title I broadband services, and to specify the parameters of that regulatory regime.

Nevertheless, the bill does not expressly require the FCC to conduct a rulemaking proceeding.

Specifically, the bill states that

"It is the policy of the United States--
(1) to maintain the freedom to use for lawful purposes broadband telecommunications networks, including the Internet, without unreasonable interference from or discrimination by network operators, as has been the policy and history of the Internet and the basis of user expectations since its inception;
(2) to ensure that the Internet remains a vital force in the United States economy, thereby enabling the Nation to preserve its global leadership in online commerce and technological innovation;
(3) to preserve and promote the open and interconnected nature of broadband networks that enable consumers to reach, and service providers to offer, lawful content, applications, and services of their choosing, using their selection of devices, as long as such devices do not harm the network; and
(4) to safeguard the open marketplace of ideas on the Internet by adopting and enforcing baseline protections to guard against unreasonable discriminatory favoritism for, or degradation of, content by network operators based upon its source, ownership, or destination on the Internet."

The bill then directs that the FCC "shall" begin a report writing proceeding within 90 days "on broadband services and consumer rights".

The bill provides that in this proceeding, the FCC "shall assess ... whether broadband network providers adhere to the Commission’s Broadband Policy Statement of August, 2005".

The FCC adopted this Policy Statement [3 pages in PDF] on August 5, 2005. See, story titled "FCC Adopts a Policy Statement Regarding Network Neutrality" in TLJ Daily E-Mail Alert No. 1,190, August 8, 2005. The FCC released the text of the Policy Statement on September 23, 2005. See, story titled "FCC Releases Policy Statement Regarding Internet Regulation" in TLJ Daily E-Mail Alert No. 1,221, September 26, 2005.

The 2005 FCC policy statement provides that "consumers are entitled to access the lawful Internet content of their choice ... consumers are entitled to run applications and use services of their choice, subject to the needs of law enforcement ... consumers are entitled to connect their choice of legal devices that do not harm the network ... consumers are entitled to competition among network providers, application and service providers, and content providers."

While there are similarities between the bill's policy statement and the 2005 policy statement, there are also differences. The fourth item from the 2005 policy statement is entirely missing from Rep. Markey's bill. Also, Rep. Markey's bill would go further in regulating service providers' management of their networks, and impose a nondiscrimination requirement.

In conducting this study, the bill further specifies that the FCC shall consider "whether, consistent with the needs of law enforcement, such providers refrain from blocking, thwarting, or unreasonably interfering with the ability of consumers to -- (i) access, use, send, receive, or offer lawful content, applications, or services over broadband networks, including the Internet; (ii) use lawful applications and services of their choice; and (iii) attach or connect their choice of legal devices to use in conjunction with their broadband telecommunications or information services, provided such devices do not harm the network".

It also requires that the FCC consider "whether broadband network providers add charges for quality of service, or other similar additional fees or surcharges, to certain Internet applications and service providers, and whether such pricing conflicts with the policies" set forth in the bill.

It also requires that the FCC consider "whether broadband network providers offer to consumers parental control protection tools, services to combat unsolicited commercial electronic mail, and other similar consumer services ..."

It also requires that the FCC consider "practices by which network providers manage or prioritize network traffic, including prioritization for emergency communications, and whether and in what instances such practices" are consistent with the policies set forth in the bill.

It also requires that the FCC consider "with respect to content, applications, and services ... the historic economic benefits of an open platform" and "the relationship between competition in the broadband Internet access market and an open platform ..."

It also requires the FCC to examine the "need for enforceable rules".

Next, the bill requires the "Commission" to conduct "a minimum of 8 public broadband summits, in geographically diverse locations". The "Commission", within the meaning of 47 U.S.C. § 155, is the five members appointed by the President and confirmed by the Senate. That is, the Commission cannot delegate this function to FCC staff.

While the FCC and many other federal commissions and agencies hold workshops or summits in some of their proceedings, and commissioners and agency heads sometimes attend part or all of these events, this is discretionary, and not pursuant to statutory mandate.

This represents a departure from the FCC's Washington DC focused practices, that rely upon notice and comments, as well as non-transparent processes, including ex parte meetings and communications and closed FCBA meetings.

Reaction. Gigi Sohn, head of the Public Knowledge, stated in a release that this bill "properly captures the broad policy that would ensure that open, free and accessible Internet we have known for years will continue to be open to innovation, free from the control of telephone and cable companies and accessible to everyone. The studies and public meetings ... will be helpful tools in making certain the essential character of the Internet does not change."

In contrast, Steve Largent, head of the Cellular Telecommunications Industry Association (CTIA), stated in a release that this bill "is an attempt to cure a problem that simply does not exist. Overwhelming evidence collected by the Federal Communications Commission, the Federal Trade Commission, and independent research analysts proves that wireless broadband adoption is spreading like wildfire across this country. This wouldn't be happening if consumers weren't getting the service, value, and access to content they desire."

He argued that "government intervention is not necessary."

Walter McCormick, head of the U.S. Telecom Association, stated in a release that "This legislation is antithetical to the Congressional innovation agenda goals of extending broadband's reach, and speeding delivery of advanced applications that will improve the environment, personal security, education, and health care -- particularly in rural areas."

McCormick continued that this bill "would blindly legislate a new national broadband policy, without regard to its implications, and then require the FCC to spend the next year determining whether the Internet is being constructed, managed, and operated in conformance with this new government mandate. We urge Congress to remain focused on its innovation agenda goal of encouraging broadband deployment and refrain from federal micro-management of the most dynamic and technologically sensitive sector of our nation’s economy."

Rep. Markey attempted to minimize perceptions of the legal significance of a statutory statement of policy. He wrote in a release that "There are some who may wish to assert that this bill regulates the Internet. It does no such thing. The bill contains no requirements for regulations on the Internet whatsoever."

In contrast, one of the bill's leading backers, Markham Erickson of the Open Internet Coalition, stated in a release that this bill "will make Net Neutrality the law of the land, and will require the FCC to protect Internet freedom from the predatory efforts of the telco and cable gatekeepers."

Randy May, head of the Free State Foundation, and a longtime opponent of network neutrality mandates, wrote in an essay [4 pages in PDF] on the bill that "This policy declaration would reverse the Supreme Court's Brand X decision affirming the FCC's 2002 determination not to regulate broadband operators as common carriers."

May added that "By embracing the no-discrimination mandate, a core common carriage requirement, the Markey bill would declare it now to be the policy of the U.S. that broadband operators be regulated like public utility common carriers."

On June 27, 2005, the Supreme Court issued its opinion [59 pages in PDF] in NCTA v. Brand X, upholding the FCC's determination that cable broadband internet access service is an information service, and reversing the judgment of the U.S. Court of Appeals (9thCir).

The Supreme Court overturned the 2003 opinion [39 pages in PDF] of the 9th Circuit, which vacated the FCC's 2002 Declaratory Ruling [75 pages in PDF] which concluded that cable modem service is an information service, and that there is no separate offering as a telecommunications service.

Statement of Policy? This bill would provide that "It is the policy of the United States ...". It does not explain what this means.

Many bills contain recitations of findings. Sometimes these findings state what policy should be. These findings are then relegated to footnotes in codifications of law, and are often ignored by agencies and courts. But, this bill contains both a findings section, and a policy statement.

The bill does not state whether or not the FCC is either bound to adhere to, enforce, or implement a policy statement. The bill does not state what are the consequences if the FCC does not follow, enforce or implement any part of the statement of policy.

For example, if the FCC issues a final order, such as in granting or denying a petition for a declaratory ruling, and that order is challenged in court, would it be sufficient grounds for granting a petition for review that the order is inconsistent with the statutory policy?

If so, how would the statement of policy fit into Chevron analysis by the courts. Would it fit within Chevron's concept of "an agency's construction of the statute which it administers"? See, Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837 (1984).

Also, the bill uses the language "policy of the United States", rather than "policy of the FCC". Thus, the bill is open to the interpretation that other federal agencies, when considering broadband related issues, are bound by the policy statement. The Federal Trade Commission (FTC) can be expected to address many broadband issues in the future. In addition, various sectoral regulatory agencies may have cause to impose regulatory restraints that affect broadband internet access, which access may be for lawful purposes. Could the policy statement of this bill be invoked to bar such efforts?

The House will not meet. It is in recess. See, Rep. Hoyer's 2008 calendar [4.25 MB PDF].

The Senate will meet momentarily in pro forma session only.

9:00 - 11:00 AM. The American Enterprise Institute (AEI) will host a panel discussion titled "Strengthening Freedom in Asia: A Twenty-First Century Agenda for the U.S.-Taiwan Partnership". The speakers will be Dan Blumenthal (AEI), Randall Schriver (Armitage International), Claude Barfield (AEI), Rupert Hammond-Chambers (U.S.-Taiwan Business Council), Michael Mitchell (Orion Strategies), Mark Stokes, and Danielle Pletka (AEI). Location: AEI, 11th floor, 1150 17th St., NW.

9:30 AM. The Federal Communications Commission's (FCC) North American Numbering Council (NANC) will meet. See, notice in the Federal Register, February 6, 2008, Vol. 73, No. 25, at Page 6968. Location: FCC, Suite 5-C162, 445 12th St. SW.

12:00 NOON - 1:30 PM. The Information Technology and Innovation Foundation (ITIF) will host a brown bag lunch titled "Opportunities and Barriers in Online Shopping". The speaker will be John Horrigan (Pew Internet & American Life Project). Location: ITIF, Suite 200, 1250 I St., NW.

5:00 PM. Deadline to submit applications for planning and construction grants for public telecommunications facilities to the National Telecommunications and Information Administration (NTIA). The NTIA will distribute $16.8 Million in grants under its Public Telecommunications Facilities Program (PTFP) in FY 2008. See, notice in the Federal Register, January 10, 2008, Vol. 73, No. 7, at Pages 1864-1865.

Deadline to submit comments to the Federal Trade Commission (FTC) regarding its staff document [7 pages in PDF] titled "Online Behavioral Advertising: Moving the Discussion Forward to Possible Self-Regulatory Principles". See, story titled "FTC Proposes and Seeks Comments on Voluntary Principles for Online Behavioral Advertising" in TLJ Daily E-Mail Alert No. 1,691, December 19, 2007.

Deadline to submit initial comments to the Copyright Office (CO) regarding its proposed rules changes regarding the recordation of notices of termination and related matters. The CO stated that these proposed changes "would communicate the Office's practices as to notices of termination that are untimely filed; clarify the fact that a notice of termination is not legally sufficient simply because it has been recorded; update the legibility requirements for all recorded documents, including notices of termination; make minor explanatory edits to the fee schedule for multiple titles within a document (adding notices of termination as an example); and create a new mailing address to which notices of termination should be sent." See, notice in the Federal Register, January 23, 2008, Vol. 73, No.15, at Pages 3898-3900.

The House will return from its President's Day Recess. Votes will be postponed at least until 6:30 PM. See, Rep. Hoyer's 2008 calendar [4.25 MB PDF].

8:30 AM - 5:30 PM. The National Science Foundation's (NSF) Committee on Equal Opportunities in Science and Engineering will meet. See, notice in the Federal Register, February 8, 2008, Vol. 73, No. 27, at Page 7611. Location: 4201 Wilson Boulevard, Arlington, VA.

5:00 PM. Deadline to submit applications to the National Institute of Standards and Technology (NIST) for Summer Undergraduate Research Fellowships (SURF) in Gaithersburg, Maryland, and Boulder Colorado. See, notice in the Federal Register, January 25, 2008, Vol. 73, No. 17, at Pages 4535-4540.

Day one of a three day conference hosted by the National Association of Broadcasters (NAB) titled "2008 NAB State Leadership Conference". See, conference web site. Location: Mandarin Oriental Hotel.

Deadline to submit comments to the Department of Defense's (DOD), General Services Administration's (GSA), and National Aeronautics and Space Administration's (NASA) Civilian Agency Acquisition Council (CAAC) and Defense Acquisition Regulations Council (DARC) regarding amendments to the federal acquisition regulation (FAR) with respect to the environmental impact of desktop computers, notebooks, monitors and other electronic products. See, notice in the Federal Register, December 26, 2007, Vol. 72, No. 246, Pages 73215-73218.

Effective date of the Securities and Exchange Commission (SEC) amendments to the proxy rules to facilitate electronic shareholder forums. See, notice in the Federal Register, January 25, 2008, Vol. 73, No. 17, at Pages 4450-4459.

TIME? The House Oversight and Government Reform Committee will hold a hearing titled "Preservation of White House E-mails". Location: Room 2154, Rayburn Building.

8:30 AM - 2:00 PM. The National Science Foundation's (NSF) Committee on Equal Opportunities in Science and Engineering will meet. See, notice in the Federal Register, February 8, 2008, Vol. 73, No. 27, at Page 7611. Location: 4201 Wilson Boulevard, Arlington, VA.

10:00 AM. The House Oversight and Government Reform Committee may hold a hearing titled "Electronic Records Preservation at the White House". Location: Room 2154, Rayburn Building.

1:00 - 4:00 PM. The Architectural and Transportation Barriers Compliance Board's (ATBCB) Telecommunications and Electronic and Information Technology Advisory Committee (TEITAC) will meet by conference call. See, notice in the Federal Register, January 24, 2008, Vol. 73, No. 16, at Page 4132.

2:00 - 4:00 PM. The Department of State's (DOS) International Telecommunication Advisory Committee (ITAC) will meet to prepare advice on the World Telecommunication Standardization Assembly 2008 (WTSA 08), including positions on cybersecurity. See, notice in the Federal Register, February 13, 2008, Vol. 73, No. 30, at Pages 8389-8390. Location?

Day two of a three day conference hosted by the National Association of Broadcasters (NAB) titled "2008 NAB State Leadership Conference". See, conference web site. Location: Mandarin Oriental Hotel.

8:30 AM - 5:00 PM. The U.S.-China Economic and Security Review Commission will hold a public hearing titled "China's Views of Sovereignty and Methods of Access Control". The hearing will also address "ways that China may be influencing the development of international sovereignty laws and norms in space and cyberspace". See, notice in the Federal Register, January 30, 2008, Vol. 73, No. 20, at Pages 5631-5632. Location: Room 562, Dirksen Building, Capitol Hill.

10:00 AM. The House Commerce Committee's (HCC) Subcommittee on Telecommunications and the Internet will meet regarding "H.R. __, a Discussion Draft on Wireless Consumer Protection and Community Broadband Empowerment". This event will be webcast by the HCC. Location: Room 2322, Rayburn Building.

1:30 PM. The House Judiciary Committee's (HJC) Subcommittee on Courts, the Internet and Intellectual Property will hold an oversight hearing on the U.S. Patent and Trademark Office (USPTO). See, notice. Location: Room 2141, Rayburn Building.

6:00 - 8:15 PM. The Federal Communications Bar Association's (FCBA) Enforcement Committee will host an event titled "FCC Hearings and Investigations -- Nuts and Bolts Review". See, notice and registration page. Registrations are due by 5:00 PM on February 25. This event offers continuing legal educations (CLE) credits. The price to attend ranges from $25 to $135. Location: Wilmer Hale, 1875 Pennsylvania Ave., NW.

Day three of a three day conference hosted by the National Association of Broadcasters (NAB) titled "2008 NAB State Leadership Conference". See, conference web site. Location: Mandarin Oriental Hotel.

Deadline to submit requests to the Federal Trade Commission (FTC) to be panelists at its May 6-7, 2008, workshop titled "Beyond Voice: Mapping the Mobile Marketplace". See, notice.

9:00 AM - 12:00 NOON. The Department of Commerce's (DOC) National Telecommunications and Information Administration (NTIA) will hold a public meeting to to discuss the mid-term review of the Joint Project Agreement (JPA) between the DOC and the Internet Corporation for Assigned Names and Numbers (ICANN). See, notice in the Federal Register, January 24, 2008, Vol. 73, No. 16, at Page 4181. Location: DOC, Auditorium, 1401 Constitution Ave., NW.

10:00 AM. The Senate Judiciary Committee (SJC) may hold an executive business meeting. The agenda includes consideration of several bills, including S 2449 [LOC | WW], the "Sunshine in Litigation Act of 2007", and S 352 [LOC | WW], the "Sunshine in the Courtroom Act of 2007". The agenda also includes consideration of the nominations of Kevin O'Connor (to be Associate Attorney General) and Gregory Katsas (to be Assistant Attorney General in charge of the Civil Division). The SJC rarely follows its published agendas. All of the above listed agenda items have been on prior agendas. See, notice. Location: Room 226, Dirksen Building.

10:00 AM. The House Homeland Security Committee (HHSC) will hold a hearing titled "Cyber Initiative". The witnesses will be Robert Jamison (DHS's Under Secretary for National Protection and Programs), Scott Charbo (DHS's Deputy Under Secretary for National Protection and Programs Directorate), Karen Evans (OMB), and Shawn Henry (FBI's Deputy Assistant Director of the Cyber Division). This hearing will be webcast by the HHSC. For more information, contact Dena Graziano or Adam Comis at 202-225-9978. Location: Room 311, Cannon Building.

12:00 NOON - 2:00 PM. The Federal Communications Bar Association's (FCBA) International Telecommunications Practice Committee will host a panel discussion titled "EU Telecommunications Law Developments". The speakers will be Gerry Oberst (Hogan & Hartson), Winston Maxwell (Hogan & Hartson), and David Gross (Department of State). Lunch will be provided by Hogan & Hartson. RSVP to aqfitzgerald at hhlaw dot com. Location: Hogan & Hartson, Litigation Center, 555 13th St., NW.

2:00 - 3:00 PM. The President's National Security Telecommunications Advisory Committee (NSTAC) will hold a partially closed meeting by teleconference. The agenda of the open portion of the meeting, which begins at 2:00 PM, includes a discussion and vote on the NSTAC's Global Positioning Systems report. The agenda of the closed portion of the meeting, which begins at 2:30 PM, includes a discussion of the results of the NSTAC's investigation of the global network infrastructure environment, and a discussion of the work of the NSTAC's Network Security Scoping Group. See, notice in the Federal Register, February 4, 2008, Vol. 73, No. 23, at Pages 6521-6522.

Deadline for the Department of Education's National Mathematics Advisory Panel to submit its final report to the President. See, notice in the Federal Register, August 20, 2007, Vol. 72, No. 160, at Pages 46452-46453.

10:00 AM. Deadline for foreign governments to submit comments to the Office of the U.S. Trade Representative (OUSTR) to assist it in making Special 301 identifications of countries that deny adequate and effective protection of intellectual property rights or deny fair and equitable market access to U.S. persons who rely on intellectual property protection. See, story titled "OUSTR Seeks Special 301 Comments on Countries that Deny Adequate IPR Protection" in TLJ Daily E-Mail Alert No. 1,703, January 22, 2008, and notice in the Federal Register, January 16, 2008, Vol. 73, No. 11, at Pages 2958-2959.

12:00 NOON - 2:00 PM. The iGrowthGlobal (IGG) will host a panel discussion titled "Network Management: The Latest Battle Over Net Neutrality". The speakers will be Scott Wallsten (IGG), David Burstein (DSLPrime), Jay Monahan (Vuze, Inc.), George Ou (ZDNet), Haruka Saito (Counselor for Telecom Policy, Embassy of Japan), and Christopher Yoo (University of Pennsylvania). Lunch will be served. Register by contacting Ashley Creel at 202-828-4405 or creela at  igrowthglobal dot org. Location: Room 2322, Rayburn Building (House Commerce Committee's 3rd floor hearing room).

Deadline to submit to the Department of Commerce's (DOC) National Telecommunications and Information Administration (NTIA) expressions of interest to participate in the spectrum sharing innovation test-bed. See, notice in the Federal Register, February 5, 2008, Vol. 73, No. 24, at Pages 6710-6711.

Deadline to submit comments or objections to the Copyright Royalty Judges' proposed rules that set the rates and terms for the making of an ephemeral recording of a sound recording by a business establishment service for the period 2009-2013. See, notice in the Federal Register, January 30, 2008, Vol. 73, No. 20, at Pages 5466-5470.

Deadline to submit petitions to participate (and filing fees) in the Copyright Royalty Judges' proceeding to determine the Phase II distribution of 1998 and 1999 royalties collected under the cable statutory license. See, notice in the Federal Register, January 30, 2008, Vol. 73, No. 20, at Page 5596-5597.

Deadline to submit comments to the Copyright Royalty Judges in response to its request for comments regarding controversies at Phase I and Phase II for distribution of the 1999 through 2005 royalty funds collected under the satellite carrier statutory license. The deadline to submit comments is February 29, 2008. See, notice in the Federal Register, January 30, 2008, Vol. 73, No. 20, at Page 5597.

Deadline to submit comments to the Copyright Royalty Judges regarding a motion for partial distribution funds under the partial Phase I settlement in connection with the 2004 and 2005 cable royalty funds. Comments are due by February 29, 2008. See, notice in the Federal Register, January 30, 2008, Vol. 73, No. 20, at Pages 5597-5598.

2/19. The Department of Justice (DOJ) filed a complaint in U.S. District Court (DC) against Thomson Corporation and Reuters Group PLC alleging violation of federal antitrust laws in connection with Thomson's proposed acquisition of Reuters. The DOJ simultaneously agreed to allow the acquisition, subject to divestitures and licensing of intellectual property.

The complaint alleges that the relevant markets are fundamentals data, earnings estimates data, and aftermarket research. It further asserts that the proposed transaction would likely have resulted in higher prices to purchasers of data used by investment managers, investment bankers, traders, corporate managers, and other institutional customers.

The complaint alleges that the acquisition would substantially lessen competition in interstate trade and commerce in violation of Section 7 of the Clayton Act, which is codified at 15 U.S.C. § 18. The complaint requests that the District Court block the transaction.

The DOJ, Thomson and Reuters simultaneously submitted a proposed Final Judgment [redacted] that permits the acquisition subject to divestitures of datasets, and licensing of related intellectual property.

The DOJ's Antitrust Division also stated in a release the "remedies contained in the proposed settlement with respect to three financial data markets are consistent with those obtained as a result of an antitrust investigation by the European Commission and also announced today".

Thomas Barnett, Assistant Attorney General in charge of the Antitrust Division, "This resolution by the Antitrust Division, the European Commission, and the Canadian Competition Bureau is an example of effective cooperation in global competition enforcement".

Reuters is a UK company based in London. The US and EU regulators do not always cooperate effectively, or reach similar conclusions, regarding competition in markets, particularly when the companies involved are all US companies.

This case is U.S.A. v. The Thomson Corporation and Reuters Group PLC, U.S. District Court for the District of Columbia, D.C. No. 1:08-cv-00262, Judge Thomas Hogan presiding.

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

Contact: 202-364-8882.
P.O. Box 4851, Washington DC, 20008.

Privacy Policy
Notices & Disclaimers
Copyright 1998-2008 David Carney, dba Tech Law Journal. All rights reserved.