4/30. The House Judiciary Committee (HJC) amended and approved HR 4279 [LOC | WW], the "Prioritizing Resources and Organization for Intellectual Property Act of 2007" or "PRO IP Act". The HJC revised the language regarding coordination of government enforcement efforts, and regarding forfeiture of property used in intellectual property crimes.

The HJC approved a managers' amendment [PDF] by unanimous voice vote. The HJC then approved the bill as amended by voice vote. Rep. Zoe Lofgren (D-CA) voted against the bill.

Rep. John Conyers (D-MI), Rep. Lamar Smith (R-TX), Rep. Howard Berman (D-CA), and others introduced this bill on December 5, 2007. It addresses remedies for infringement and counterfeiting, and the organization and funding of government efforts to enforce intellectual property rights (IPR). For a summary of the bill as introduced, see story titled "Representatives Introduce PRO IP Act" in TLJ Daily E-Mail Alert No. 1,683, December 5, 2008.

The HJC's Subcommittee on Courts, the Internet and Intellectual Property (SCIIP) amended and approved the bill on March 6, 2008. See, managers' amendment [PDF]. For a summary of the amendment, see story titled "House Subcommittee Amends PRO-IP Act" in TLJ Daily E-Mail Alert No. 1,727, March 05, 2008.

Rep. Berman stated at the full Committee mark up on April 30 that the managers' amendment attempts to address the Bush administration's concerns about the bill's provisions regarding organization of executive branch enforcement efforts. However, he added that the HJC has not yet received detailed proposals from the Bush administration regarding what would satisfy their concerns.

He added that the bill as amended by the managers' amendment maintains prosecutorial discretion at the Department of Justice (DOJ) and trade authority at the Office of the U.S. Trade Representative (OUSTR). However, he said that there needs to be greater coordination of intellectual property enforcement efforts.

The managers' amendment also addressed forfeiture. Section 202 of the bill pertains to forfeiture of property used in various criminal violations of intellectual property laws. That is, it applies in criminal actions brought by the government under 18 U.S.C. § 2318 (regarding trafficking in counterfeit labels), 18 U.S.C. § 2319 (regarding criminal infringement of copyright), 18 U.S.C. § 2319A (regarding unauthorized fixation of and trafficking in sound recordings and music videos of live musical performances), and 18 U.S.C. § 2319B (regarding unauthorized recording of motion pictures in a motion picture exhibition facility).

The amendment approved by the SCIIP on March 6, 2008, added the requirement that "the Government shall establish that there was a substantial connection between the property and the offense."

The amendment approved on April 30, 2008, further clarifies the substantial connection requirement. This amendment inserts the following clause into the various forfeiture provisions: "except that property is subject to forfeiture under this clause only if the Government establishes that there was a substantial connection between the property and the violation".

Rep. Lofgren (at right) said, regarding the forfeiture language, that the Committee has "not yet reached the proper balance". She asserted that innocent persons' property, such as computers, could be seized because of someone else's conduct.

She noted that there are procedures available to recover property wrongfully seized by the government, but that parents and students are unlikely to avail themselves of these remedies.

Rep. Berman noted that the forfeiture provisions for intellectual property (IP) crimes, under existing law, and as stated in this bill as amended, are "significantly narrower" than the forfeiture provisions of federal drug laws.

Rep. Lofgren and Rep. Berman (at left), who represent Silicon Valley and Los Angeles districts, respectively, continued to spar.

While Rep. Berman thought it appropriate to compare IP to drug prosecutions, Rep. Lofgren thought it pertinent to consider IP prosecutions in light of recent peer to peer infringement actions. She said that the Recording Industry Association of America (RIAA) has sued students and other innocent people, who as a result have "ended up financially behind the eight ball".

Rep. Berman, who is the Chairman of the SCIIP, said that for the government to seize property there is a requirement that the property "be under the predominant control of the offending party".

The forfeiture language of the bill includes the following: "The following property is subject to forfeiture to the United States ... owned or predominantly controlled by the violator or by a person conspiring with or aiding and abetting the violator in committing the violation".

Rep. Berman also said to Rep. Lofgren that we will continue to work to find balance in this bill.

Rep. Lofgren said that "what has happened with the RIAA lawsuits is that they have made a business out of extorting money from students". She added that "I think that this is the same type of situation".

Rep. Berman joked about her characterization of these lawsuits as "extortion".

Also, the RIAA lawsuits to which Rep. Lofgren referred are private civil actions brought by record companies. In contrast, the forfeiture provisions of HR 4279 apply to only seizure of property in criminal proceedings. This bill does not enhance the remedies available to record companies in civil actions. There are far fewer federal prosecutions than record company civil actions. Moreover, federal prosecutions tend to be brought by professional prosecutors with no financial stake or interest in the outcome of their actions.

Rep. Conyers stated that this bill "will help our economy by protecting our high-tech jobs now and long into the future. This bi-partisan bill recognizes and puts forth the necessary resources commensurate with the substantial and rising importance of intellectual property to this nation’s economy."

Rep. Sheila Lee (D-TX) said that she wants the DOJ's Computer Hacking and Intellectual Property (CHIP) units to be more racially diverse. However, she offered no amendment.

Gigi Sohn, head of the Public Knowledge, stated in a release that "We are pleased that the Committee amended the bill (HR 4279) to make clear there has to be a 'substantial connection' between property to be seized, such as a computer, a car or a house, and any violations of the copyright law."

Patrick Ross, head of the Copyright Alliance, praised the bill. He wrote in a release that "With a weakened economy and rising unemployment, it is critical that the creative industries -- providers of millions of high-paying US jobs -- have their rights protected. The PRO IP Act contains numerous means to increase copyright enforcement both domestically as well as abroad, where the US Trade Representative's most recent report shows piracy remains rampant."

Dan Glickman, head of the Motion Picture Association of America (MPAA), stated in a release that "The Judiciary Committee took a positive, bipartisan step today by passing the PRO-IP Act. By further protecting intellectual property, this legislation will be a boost for the American economy and will help generate more American jobs for our workers. Given the difficult economic times we currently face, the PRO-IP Act is welcome by both the business and labor communities because it will help strengthen our nation’s economic outlook. I hope the full House and the Senate will both move quickly in order to make this bill law."

David Israelite, head of the National Music Publishers Association (NMPA), stated in a release that "Today’s action represents important progress for everyone concerned about better enforcement of America’s intellectual property rights. Having spent time at the Justice Department tackling IP enforcement and coordination issues, I understand the challenge of managing resources effectively and applaud the Subcommittee’s efforts to provide leadership in this area. This bill will go a long way towards making sure law enforcement agencies have what they need to get the job done on both domestic and international fronts."

4/30. The U.S. Court of Appeals (9thCir) issued its opinion [11 pages in PDF] in Clark v. Time Warner Cable, affirming the District Court's dismissal without prejudice of a class action slamming complaint against a VOIP service provider, pursuant to the primary jurisdiction doctrine, on the assumption that the FCC is actively considering the issue. The Court of Appeals concluded that a few lines in a four year old NPRM preclude the courts from interpreting the relevant statute.

Background. K Clark is an individual. She had two phone lines in her home. She spoke with a representative of Time Warner Cable (TWC) about purchasing voice over internet protocol service. However, she did not order the TWC service, or request that her existing service be terminated. Nevertheless, TWC caused her other services to be terminated.

47 U.S.C. § 258(a), the ban on slamming, provides that "No telecommunications carrier shall submit or execute a change in a subscriber’s selection of a provider of telephone exchange service or telephone toll service except in accordance with such verification procedures as the Commission shall prescribe. Nothing in this section shall preclude any State commission from enforcing such procedures with respect to intrastate services."

Clark filed a complaint in U.S. District Court (CDCal) alleging violation of Section 258, violation of a similar California state statute, violation of the federal Racketeer Influenced and Corrupt Organizations (RICO) statute, fraud, fraudulent concealment, and negligence. She also sought class action status.

This article focuses on those parts of the Court of Appeals' opinion that pertain to the Section 258 claim.

The District Court dismissed the complaint without prejudice. It held, among other things, that Section 258 only applies to a "telecommunications carrier", and referred the case to the Federal Communications Commission (FCC).

Court of Appeals. The Court of Appeals affirmed, pursuant to the doctrine of primary jurisdiction. That is, the Congress has given the FCC authority to write regulations implementing Section 258, and it has done so, but these regulations do not yet address VOIP. Whether Section 258 reaches VOIP service provides is an undecided question that is being actively considered by the FCC in a rule making proceeding. Hence, the courts should dismiss this action to allow the FCC to complete its proceeding.

The Court of Appeals wrote that "The emergence of VoIP technology created new challenges for the FCC, however, as existing regulations did not contemplate the revolutionary changes IP-enabled services entailed. Accordingly, the FCC issued a Notice of Proposed Rulemaking seeking comment on how to define and to regulate all IP-enabled services, including VoIP ..."

The FCC adopted its IP enabled services Notice of Proposed Rulemaking (NPRM) [97 pages in PDF] on February 12, 2004, and released it on March 10, 2004. It is FCC 04-28 in WC Docket 04-36.

The Court of Appeals added that this NPRM "posed two specific questions relevant to Clark's § 258(a) claim against TWC. First, it solicited comment on whether VoIP services should be classified as ``telecommunications services´´ or ``information services´´ under the Act. ... Second, the FCC solicited comment on whether § 258(a)’s anti-slamming provision should apply to VoIP providers regardless of their statutory classification." (Footnotes omitted.)

The Court of Appeals continued that "The primary jurisdiction doctrine allows courts to stay proceedings or to dismiss a complaint without prejudice pending the resolution of an issue within the special competence of an administrative agency. A court’s invocation of the doctrine does not indicate that it lacks jurisdiction. ... Rather, the doctrine is a ``prudential´´´ one, under which a court determines that an otherwise cognizable claim implicates technical and policy questions that should be addressed in the first instance by the agency with regulatory authority over the relevant industry rather than by the judicial branch."

The Court of Appeals noted that the FCC's 2004 NPRM "demonstrates that the agency is actively considering how it will regulate VoIP services and that the agency’s development of a uniform regulatory framework to confront this emerging technology is important to federal telecommunications policy."

Hence, it held this. "Faced with such question here, we conclude that the primary jurisdiction doctrine provided the district court with the authority to refer Clark’s claim to the FCC."

FCC Administrative Process. This opinion rests in part on a misconception of the administrative process at the FCC. The Court of Appeals wrote that its understanding, based upon the FCC's 2004 NPRM, is that the FCC is "actively considering" the underlying issue of application of slamming rules to VOIP service providers.

This is a huge NPRM that asks many questions that the FCC is not now actively considering. The FCC issues numerous NPRMs that pose numerous questions. Many of these NPRMs and questions languish for years without any resolution.

This NPRM states, at paragraph 72, that "Section 258 of the Act prohibits ``slamming´´ by requiring that any “telecommunications carrier” must adhere to authorization and verification procedures prescribed by the Commission when submitting and executing carrier changes. ... We seek comment on whether these billing-related requirements -- or any other consumer protections not discussed here -- should apply to any providers of VoIP or other IP-enabled services." (Footnote omitted.)

This is just part of one paragraph in a 97 page document filled with hundreds of questions across a broad landscape of communications and internet related issues. The FCC fired shotgun volleys of questions in all directions in an attempt to strike all conceivable targets. Most of these questions, and many others in hundreds of other FCC NPRMs, remain unanswered. Nevertheless, the FCC leaves open option of issuing rules on any of these many issues, without complying with any further notice and comment requirements.

The FCC's shotgun approach also provides litigants like TWC the argument that the FCC has preempted the field.

The FCC is not a party to this action. It did not assert that it is "actively considering" this issue.

However, one of TWC's attorneys in this case is Matt Brill. He was a legal advisor to former Commissioner Kathleen Abernathy when the FCC issued the 2004 NPRM.

On another occasion, when the 9th Circuit did not defer to the FCC, the Supreme Court reversed the judgment of the 9th Circuit. See, story titled "Supreme Court Rules in Brand X Case" in TLJ Daily E-Mail Alert No. 1,163, June 28, 2005. Although, that case involved Chevron deference, rather than the primary jurisdiction doctrine.

This case is K. Clark v. Time Warner Cable, U.S. Court of Appeals for the 9th Circuit, App. Ct. No. 07-55794, an appeal from the U.S. District Court for the Central District of California, D.C. No. CV-07-01797-VBF, Judge Valerie Fairbank presiding.

Judge Diarmuid O'Scannlain wrote the opinion of the Court of Appeals, in which Judges Alex Kozinski and William Fletcher joined.

4/24. Sen. Ted Stevens (R-AK) and other Senators introduced S 2919 [LOC | WW | PDF], the "Signaling Modernization Act of 2008".

This bill would add a new Section to the Communications Act titled "Network Traffic Identification Accountability Standards". It would impose legacy telecommunications technology mandates on voice over internet protocol (VOIP) service providers. Specifically, it would require VOIP service providers to generate information for all communications that originate on its network to facilitate legacy intercarrier billing practices.

The term "intercarrier compensation" is often associated with other terms, such as "obsolete", "broken", "dysfunctional", "outdated" and "legacy". It refers to the payments that one communications carrier pays to another carrier to originate, transport, and/or terminate telecommunications traffic.

The FCC has a long running and incomplete rule making proceeding regarding reform of the intercarrier compensation regime. The FCC issued a Notice of Proposed Rulemaking [70 pages in PDF] in April of 2001. This proceeding is titled "In the Matter of Developing a Unified Intercarrier Compensation Regime". This NPRM is FCC 01-132 in CC Docket No. 01-92. The FCC issued a Further NPRM [116 pages in PDF] in March of 2005; it is FCC 05-05-33. The FCC also issued a Public Notice [3 pages in PDF] in July of 2006.

The FCC's web site reflects that as of April 30, 2008, 2,289 comments and notices had been filed in this proceeding. However, after seven years, the FCC has failed to fix, reform, or modernize the intercarrier compensation regime.

Sen. Stevens' bill does not attempt to reform the intercarrier compensation regime. Rather, it would compel new technologies and services to conform to this legacy system.

If enacted, this bill would constitute another in a series of Congressional and FCC efforts to impose legacy mandates and technologies on VOIP communications. Others include 911 and CALEA initiatives.

The bill would provide that "A provider of voice communications service shall ensure that all voice communications service traffic that originates on its network contains the signaling information reasonably needed to facilitate intercarrier billing in accordance with industry standards, as determined by the Commission. Except as otherwise permitted by the Commission, a provider that transports or transits traffic between voice communications service providers shall forward without altering the signaling information it receives from another provider that is reasonably needed to facilitate intercarrier billing in accordance with industry standards."

The bill's definition of "communications" includes "IP-enabled voice service", which it defines as "the provision of real-time two-way voice communications offered to the public, or such classes of users as to be effectively available to the public, transmitted through customer premises equipment using Internet protocol, or a successor protocol, with two-way transmission capability such that the service can originate traffic to, and terminate traffic from, the public switched telephone network."

The bill would also require the FCC within 12 months to complete a rulemaking proceeding implementing this bill.

The FCC's rules, at 47 C.F.R. § 64.1601(a), currently provide that "common carriers using Signaling System 7 and offering or subscribing to any service based on Signaling System 7 functionality are required to transmit the calling party number (CPN) associated with an interstate call to interconnecting carriers".

This CPN data has many uses other than for intercarrier compensation, including caller identification services, government surveillance, and emergency response.

Sen. Stevens (at right) uses the pejorative phrase "phantom traffic" to describe services that do not comply with the mandates of this bill.

He stated in a release that "Phantom traffic has become a problem for rural carriers in Alaska and throughout rural America ... Phantom traffic prevents carriers from collecting funds they are owed, which in turn impacts universal service and ultimately telephone rates for customers in rural America.  It is time for the FCC to pull back the mask and see who or what is behind phantom traffic".

He stated in the Senate that "Our bill will require all calls from voice communications service providers to contain enough information to allow carriers to bill each other, including voice over internet protocol providers offering 2-way service and providers transiting the traffic between originating and terminating providers. Our bill also directs the FCC to establish rules implementing this requirement within 12 months of enactment, and gives it the authority to adopt enforcement provisions. Phantom traffic steals from rural carriers and customers. I hope Congress and the FCC will look at this issue closely and put an end to phantom traffic." See, Congressional Record, April 24, 2008, at Page S3408.

The other original cosponsors of the bill are Sen. Daniel Inouye (D-HI) and Sen. Byron Dorgan (D-ND), Sen. Gordon Smith (R-OR), Sen. Mark Pryor (D-AR), Sen. John Thune (R-SD) and Sen. Olympia Snowe (R-ME).

The bill was referred to the Senate Commerce Committee (SCC), which held a hearing on this topic on April 23, 2008.

Sen. Inouye, the Chairman of the SCC, wrote in his opening statement [PDF] that "all telephone companies are required to interconnect with each other, to complete a phone call even if the carrier has no relationship with the calling party. Historically, for the system to work, phone companies have sought compensation for the services they provided to other carriers. Today, many telephone companies complain that too many of the calls to their customers arrive lacking signaling information necessary for billing purposes. This so called ``phantom traffic´´ financially burdens small carriers in particular."

Raymond Henagan (Rock Port Telephone Company) testified on behalf of the National Telecommunications Cooperative Association (NTCA). He wrote in his prepared testimony [PDF] that "rural carriers are discovering blatant schemes intended to avoid the payment of access charges entirely".

He wrote that "In its most insidious form, phantom traffic is a result of some carriers stripping the data completely, manipulating the data into an unreadable form, or the outright refusal to pay the intercarrier bill for the calls they send to another carrier’s network. In other cases, phantom traffic materializes as a result of an originating service provider’s failure to attach appropriate call signaling information to its traffic."

He wrote that "11% of calls other carriers sent Rock Port for termination on our network lacked a CPN", and that "small rural carriers across the nation typically receive about 29% of their total net telephone company operating revenue from intercarrier payments."

Angela Simpson (Covad) testified on behalf of the VON Coalition. She wrote in her prepared testimony [PDF] that "the current compensation scheme does not reflect the technological realities of today's communications market. Many new technologies, like some VoIP services, have no business reason to track such information in the traditional way that the ILECs would prefer. And to do so would require extensive network modifications simply to generate artificial information. For example, many innovative Internet based communication services and technologies are not tied inextricably to North American Numbering Plan (``NANP´´) numbers, which are the foundation of many intercarrier compensation calculations. In other instances, the consumer is simply utilizing the full range of features of a technology, whether IP-enabled or wireless, such as using a communications device to originate calls from locations unrelated to the calling party number."

Charles McKee (Sprint Nextel) wrote in his prepared testimony [7 pages in PDF] that his company does not believe that this issue "currently warrants legislation".

Larry Sarjeant (Qwest) wrote in his prepared testimony [PDF] that "phantom traffic ... generally occurs because the current intercarrier compensation regime has not kept pace with technological and competitive changes in the communications market, and as a result, has made certain arbitrage opportunities possible."

He wrote that "Qwest believes that comprehensive intercarrier compensation reform that creates a holistic bill-and-keep-at-the edge regime for all traffic is the only true and complete solution to the phantom traffic problem."

Walter McCormick, head of USTelecom, praised the bill in a release.

The House will meet at 10:00 AM for legislative business. The agenda includes no technology related items. See, Rep. Hoyer's schedule for week of April 28, and schedule for May 1.

The Senate will meet at 9:30 AM. It will resume consideration HR 2881 [LOC | WW], the "FAA Reauthorization Act of 2007".

9:00 AM - 4:00 PM. Day two of a two day meeting of the National Archives and Records Administration's (NARA) Advisory Committee on the Electronic Records Archives (ACERA). See, notice in the Federal Register, April 11, 2008, Vol. 73, No. 71, at Pages 19903-19904. Location: 700 Pennsylvania Ave., NW.

9:00 - 10:30 AM. Robert Atkinson, head of the Information Technology and Innovation Foundation (ITIF), will present a report titled "Explaining International Broadband Leadership". The other speakers will be Tom Bleha and Magnus Härviden (Embassy of Sweden). See, notice. Location: National Press Club, 529 14th St., NW.

9:30 AM. The House Commerce Committee's (HCC) Subcommittee on Telecommunications and the Internet will hold a hearing on a yet to be introduced bill that the HCC titles "Draft Legislation Enhancing Access to Broadband Technology and Services for Persons with Disabilities". The witnesses will be Larry Goldberg (WGBH Boston), Jamaal Anderson (Atlanta Falcons), Russell Harvard, Dane Snowden (International Association for the Wireless Telecommunications Industry), and Ken Nakata (BayFirst Solutions). The hearing will be webcast by the HCC. Location: Room 2123, Rayburn Building.

10:00 AM. The House Judiciary Committee's (HJC) Subcommittee on Crime, Terrorism, and Homeland Security will hold a hearing on HR 4081 [LOC | WW], the "Prevent All Cigarette Trafficking Act of 2007", and HR 5689 [LOC | WW], the "Smuggled Tobacco Prevention Act of 2008". One of the purposes of these bills is to further regulate cigarette sales to increase federal, state and local tax revenues, particularly with respect to internet sales. See, notice. This hearing will be webcast by the HJC. Location: Room 2141, Rayburn Building.

12:00 NOON - 1:30 PM. The National Economists Club (NEC) will host a lunch. The speaker will be Gary Hufbauer. The topic will be "NAFTA at 14: Why the Uproar?". Location: Chinatown Garden Restaurant, 618 H St., NW.

TIME CHANGE. 2:15 PM. The Senate Judiciary Committee (SJC) will hold a hearing on the nominations of Steven Agee (to be a Judge of the U.S. Court of Appeals for the 4th Circuit), William Lawrence (U.S. District Court, SDInd), and Murray Snow (USDC, DAriz). See, notice. Location: Room 226, Dirksen Building.

2:30 PM. The Senate Commerce Committee (SCC) will hold a hearing on the nomination of Lily Claffee to be General Counsel of the Department of Commerce (DOC). See, notice. Location: Room 253, Russell Building.

2:30 - 5:00 PM. The President's National Security Telecommunications Advisory Committee (NSTAC) will meet in a partially closed session. See, notice in the Federal Register, April 30, 2008, Vol. 73, No. 84, at Page 23478. Location: U.S. Chamber of Commerce, 1615 H St., NW.

6:00 PM. Deadline for the winning bidders in Auction 73 to avoid default for failure to submit final payment, including late fees, for their winning bids. See, notice.

Rep. Hoyer's schedule for week of April 28 states that "no votes are expected in the House".

9:00 AM - 3:30 PM. The Department of Commerce's (DOC) Economics and Statistics Administration's (ESA) Bureau of Economic Analysis's (BEA) BEA Advisory Committee will meet. The agenda includes a discussion of how offshoring might bias the Gross Domestic Product (GDP) statistics. See, notice in the Federal Register, March 24, 2008, Vol. 73, No. 57, at Page 15477. Location: BEA, 1441 L St., NW.

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in James Kay v. FCC, App. Ct. No. 03-1072. Judges Tatel, Garland and Kavanaugh will preside. Location: 333 Constitution Ave., NW.

11:00 AM - 6:00 PM. The National Science Foundation (NSF) Advisory Committee for Computer and Information Science and Engineering will meet. The agenda includes discussion of "strategic priorities in computing". See, notice in the Federal Register, April 16, 2008, Vol. 73, No. 74, at Page 20721. Location: NSF, 4201 Wilson Blvd., Room 1235, Arlington, VA.

12:30 PM. The Heritage Foundation will host a book talk by Dianne Furchtgott-Roth, author of the book [Amazon] titled "Overcoming Barriers to Entrepreneurship in the United States". See, notice. Location: Heritage, 214 Massachusetts Ave., NE.

Deadline to submit to the Copyright Royalty Judges petitions to participate in the proceeding to determine the Phase I distribution of 2000, 2001, 2002, and 2003 royalties collected under the cable statutory license. See, notice in the Federal Register, April 2, 2008, Vol. 73, No. 64, at Pages 18004-18005.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Maxwell Technologies v. Nesscap, App. Ct. No. 2007-1324, an appeal from the U.S. District Court (SDCal) in a patent infringement case involving ultracapacitor technology. Location: Courtroom 402, 717 Madison Place, NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Stanford v. Motorola, App. Ct. No. 2007-1564. Location: Courtroom 402, 717 Madison Place, NW.

12:30 - 2:00 PM. The Federal Communications Bar Association's (FCBA) International Telecommunications Practice Committee will host a brown bag lunch. The topic will be "Understanding the Internet: An International Perspective". The speakers will include Irene Wu (FCC and Georgetown University). For more information, contact John Giusti at John dot Giusti at fcc dot gov. Location: Verizon, 5th floor, 1300 I St., NW.

Deadline to submit proposals to the Internet Corporation for Assigned Names and Numbers (ICANN) in response to its April 21, 2008, Request for Proposals (RFP) regarding the appointment of an independent evaluator to undertake a review of the ICANN Board.

EXTENDED TO MAY 19. Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to it Notice of Proposed Rulemaking (NPRM) regarding the Recommended Decision of the Federal-State Joint Board on Universal Service, released on November 20, 2007, regarding comprehensive reform of high cost universal service taxes and subsidies. The FCC adopted this NPRM on January 15, 2008, and released the text on January 29, 2008. It is FCC 08-02 in WC Docket No. 05-337 and CC Docket No. 96-45. See, original notice in the Federal Register, March 4, 2008, Vol. 73, No. 43, at Pages 11587-11591. See also, notice [PDF] of extension (DA 08-674).

EXTENDED TO MAY 19. Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to it Notice of Proposed Rulemaking (NPRM) regarding the use of reverse auctions to determine the amount of high cost universal service subsidies provided to eligible telecommunications carriers serving rural, insular, and high cost areas. The FCC adopted this NPRM on January 9, 2008, and released the text on January 29, 2008. It is FCC 08-05 in WC Docket No. 05-337 and CC Docket No. 96-45. See, original notice in the Federal Register, March 4, 2008, Vol. 73, No. 43, at Pages 11591-11602. See also, notice [PDF] of extension (DA 08-674).

EXTENDED TO MAY 19. Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to it Notice of Proposed Rulemaking (NPRM) regarding the FCC's rules governing the amount of high cost universal service subsidies provided to competitive eligible telecommunications carriers (ETCs). This NPRM also tentatively concludes that the FCC should eliminate the existing identical support rule, which is also known as the equal support rule. The FCC adopted this NPRM on January 9, 2008, and released the text on January 29, 2008. It is FCC 08-04 in WC Docket No. 05-337 and CC Docket No. 96-45. See, original notice in the Federal Register, March 4, 2008, Vol. 73, No. 43, at Pages 11580-11587. See also, notice [PDF] of extension (DA 08-674).

9:30 AM. The House Commerce Committee's (HCC) Subcommittee on Telecommunications and the Internet will hold a hearing on HR  5353, the "Internet Freedom Preservation Act of 2008". This hearing will be webcast by the HCC. Location: Room 2322, Rayburn Building.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in University of Texas v. Benq, App. Ct. No. 2007-1388, an appeal from the U.S. District Court (WDTex) in patent infringement case involving cell phone technology. See, web site with hyperlinks to District Court pleadings. Location: Courtroom 201, 717 Madison Place, NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Technology Properties v. ARM, App. Ct. No. 2008-1020. Location: Courtroom 201, 717 Madison Place, NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in AdvanceME v. RapidPay, App. Ct. No. 2007-1036, an appeal from the U.S. District Court (EDTex) in a patent infringement case involving the concept of joint infringement. Location: Courtroom 203, 717 Madison Place, NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Technology Licensing v. Videotek, App. Ct. No. 2007-1441, a patent infringement case involving video signal processing. Location: Courtroom 203, 717 Madison Place, NW.

12:00 NOON - 2:00 PM. The Information Technology and Innovation Foundation (ITIF) will host a lecture by William Lewis titled "Unleashing the Power of Productivity at Home and Abroad". The other speaker will be Ike Brannon (Department of the Treasury). This event is free and open to the public. See, notice. Location: ITIF, Suite 200, 1250 Eye St., NW.

The Computer and Communications Industry Association (CCIA) will host an event titled "2008 Washington Caucus". Prices vary. Location: Willard Hotel.

Day one of a two day workshop hosted by the Federal Trade Commission (FTC) titled "Beyond Voice: Mapping the Mobile Marketplace". See, notice. Location: FTC Conference Center, 601 New Jersey Ave., NW.

? Possible date for the House Judiciary Committee's (HJC) Subcommittee on Courts the Internet and Intellectual Property's (SCIIP) markup of HR 5889 [LOC | WW], the "Orphan Works Act of 2008".

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Jacobsen v. Katzer, App. Ct. No. 2008-1001, an appeal from the U.S. District Court (NDCal) in a patent and copyright case involving open source software and model trains. See, hyperlinks to District Court pleadings in Robert Jacobsen's web site titled "Java Model Railroad Interface" or "JMRI". See also, amicus brief of Creative Commons and others. Location: Courtroom 201, 717 Madison Place, NW.

12:00 NOON. The Cato Institute will host a panel discussion titled "The REAL ID Rebellion: Whither the National ID Law?". The speakers will be Mark Sanford (Governor of the state of South Carolina), Sen. Jon Tester (D-MT), and Jim Harper (Cato). The event will be webcast by the Cato. See, notice and registration page. Location: Cato, 1000 Massachusetts Ave., NW.

2:00 PM. The House Small Business Committee's (HSBC) Subcommittee on Contracting and Technology will hold a hearing titled "The DTV Transition and Small Businesses: Small Firms Contributing to a Big Change". Location: Room 1539, Longworth Building.

Day two of a two day workshop hosted by the Federal Trade Commission (FTC) titled "Beyond Voice: Mapping the Mobile Marketplace". See, notice. Location: FTC Conference Center, 601 New Jersey Ave., NW.

Deadline to submit initial comments to the Federal Communications Commission's (FCC) Consumer & Governmental Affairs Bureau in response to its Public Notice regarding the request for clarification filed by Hawk Relay that internet protocol speech to speech (IPSTS) is a form of Telecommunications Relay Service (TRS). This item is DA 08-292 in CG Docket No. 08-15. See, notice in the Federal Register, April 7, 2008, Vol. 73, No. 67, at Page 18796.

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in CTIA v. FCC, App. Ct. No. 07-1475. Judges Sentelle, Randolph and Rogers will preside. Location: 333 Constitution Ave., NW.

9:30 AM - 1:15 PM. The DC Bar Association will host a program titled "Essential Checklist for Electronic Discovery". The speakers will be John Facciola (Magistrate Judge, U.S. District Court for the District of Columbia), Conrad Jacoby (efficientEDD), and Courtney Barton (LexisNexis Applied Discovery). This event qualifies for continuing legal education (CLE) credits. Prices vary from $80 to $115. See, notice. Location: DC Bar Conference Center, B-1 Level, 1250 H St., NW.

12:00 NOON - 2:00 PM. The Federal Communications Bar Association's (FCBA) Diversity Committee and Young Lawyers' Committee will host an event titled "Mentoring Luncheon". For more information, contact Contact Andrea Barbarin, abarbarin at loctw dot com or 202-479-4844. The price to attend is $20.00. See, notice and online registration page. Location: Arnold & Porter, 10th floor, 555 12th St., NW.

2:00 PM. The U.S. Court of Appeals (FedCir) will hear oral argument en banc in In Re Bilski, App. Ct. No. 07-1130, an appeal from the an appeal from the U.S. Patent and Trademark Office's (USPTO) Board of Patent Appeals and Interferences (BPAI), regarding patentable subject matter. See, story titled "Federal Circuit Receives Amicus Briefs Re Business Method Patents and Patentable Subject Matter" 1,743, April 8, 2008. Location: Courtroom 201, 717 Madison Place, NW.

Deadline to submit comments to the Department of Education (DOE) in response to its notice of proposed rulemaking regarding the Family Educational Rights and Privacy Act of 1974 (FERPA). See, notice in the Federal Register, March 24, 2008, Vol. 73, No. 57, at Pages 15573-15602.

4/30. The Administrative Office of U.S. Courts (AOUSC) released its report titled "2007 Wiretap Report".

This report covers January 1, 2007, through December 31, 2007. It contains data on Title III intercepts, but not Foreign Intelligence Surveillance Act (FISA) intercepts.

It finds that "A total of 2,208 intercepts authorized by federal and state courts were completed in 2007, an increase of 20 percent compared to the number terminated in 2006."

457 of these were federal, and 1,751 were state. The report also contains data for the previous ten years. In 1997 there were a roughly equal number of state and federal wiretaps -- just over 500 each. However, since then the number of state wiretaps has grown, while the number of federal wiretaps has remained somewhat constant.

The Department of Justice's (DOJ) National Security Division (NSD) issued a separate release on April 30, 2008, that states that "From 2001 through 2007, the annual number of FISA applications approved by the Foreign Intelligence Surveillance Court rose from 934 to 2,370."

Moreover, it should be noted that as a result of changes made to the FISA by the USA PATRIOT Act in 2001, information obtained from FISA surveillance can more easily be used in criminal cases.

The report also finds that "The average number of persons whose communications were intercepted decreased from 122 per wiretap order in 2006 to 94 per wiretap order in 2007."

The report states that 21 intercepts completed in 2007 were "roving wiretaps".

The report also states that "In 2007, no instances were reported of encryption encountered during any federal or state wiretap."

The report states that 81% of intercepts were for drug investigations. It states that "Violations of drug laws and homicide/assault were the two most prevalent types of offenses investigated through communications intercepts. Racketeering was the third most frequently recorded offense category, and gambling the fourth."

Also, "In 2007, installed wiretaps were in operation an average of 44 days".

The report also states that the vast majority of intercepts were phone wiretaps, and that most of these phones were mobile, rather than landline, phones.

"Telephone wiretaps accounted for 94 percent (1,998 cases) of intercepts installed in 2007." The report continues that "The next most common method of surveillance reported was the oral wiretap, including microphones. Oral wiretaps were used in 1 percent of intercepts (20 cases). The electronic wiretap, which includes devices such as digital display pagers, voice pagers, fax machines, and transmissions via computer such as electronic mail, accounted for less than 1 percent (15 cases) of intercepts installed in 2007; 9 of these involved computers, and 4 involved other electronic devices. A combination of surveillance methods was used in 4 percent of intercepts (86 cases); of these combination intercepts, 90 percent (78 cases) included a mobile/cellular telephone as one of the devices monitored." (Parentheses in original.)

4/30. The Department of Justice (DOJ) filed a Petition for Rehearing En Banc [98 pages in PDF] with the U.S. Court of Appeals (10thCir) in U.S. v. Nacchio.

On March 17, 2008, a three judge panel of the Court of Appeals issued its divided opinion [74 pages in PDF], reversing the conviction of Joseph Nacchio, a former CEO of Qwest Communications International, and remanding for a new trial, before a new judge.

The DOJ criminally prosecuted Nacchio on allegations that he traded shares of Qwest while knowing that the company was unlikely to continue to meet its announced earnings. On April 19, 2007, a trial jury of the U.S. District Court (DColo) returned a verdict of guilty on 19 counts of violation of federal securities laws involving insider trading. It acquitted Nacchio on 23 other counts.

On July 27, 2007, the District Court imposed a sentence of 72 months in prison on Nacchio. See, DOJ release.

The Court of Appeals held that "the improper exclusion of his expert witness merits a new trial". However, the Court of Appeals rejected Nacchio's other appeal points -- insufficiency of the evidence, improper jury instructions, and exclusion of classified information.

See, story titled "10th Circuit Reverses Nacchio's Conviction" in TLJ Daily E-Mail Alert No. 1,732, March 18, 2008.

The DOJ argues in its petition that the District Court did not err in excluding expert testimony.

This case is U.S.A. v. Nacchio, U.S. Court of Appeals for the 10th Circuit, App. Ct. No. 07-1311, an appeal from the U.S. District Court for the District of Colorado. Judge McConnell wrote the opinion of the Court of Appeals in which Judge Kelly joined. Judge Holmes dissented in part.

4/30. Alice Fisher (at right), Assistant Attorney General in charge of the Department of Justice's (DOJ) Criminal Division, will leave the DOJ on May 23, 2008.

4/30. President Bush nominated Michael Anello to be a Judge of the U.S. District Court for the Southern District of California. See, White House release.

4/30. The Federal Communications Commission's (FCC) Consumer and Governmental Affairs Bureau  published a notice in the Federal Register that states that it "clarifies the eligibility requirement for compensation from the TRS Fund (Fund) for providers of Internet Protocol (IP) captioned telephone service (IP CTS). The Bureau also clarifies that an IP CTS provider seeking compensation from the Fund must notify the Interstate TRS Fund administrator 30 days prior to the date the provider submits minutes for payment." See, Federal Register, April 30, 2008, Vol. 73, No. 84, at Pages 23361-23362.

4/30. The Federal Communications Commission (FCC) stated in a release [PDF] that "topics selected for open meeting agendas will now formally be made public and posted on the Commission’s website three weeks prior to the upcoming monthly meeting". The FCC further asserted that this "enhances the openness and transparency of the Commission’s processes and deliberations".

4/30. The Department of Justice's (DOJ) National Security Division (NSD) announced the creation of an Office of Intelligence, with three sections for operations, oversight and litigation. See, DOJ release. The Operations Section will obtain Foreign Intelligence Surveillance Act (FISA) orders from the Foreign Intelligence Surveillance Court (FISC). The creation of the Oversight Section is based upon the premise, which is disputed by many members of Congress, that the executive branch can effectively exercise oversight of itself. The acting Assistant Attorney General (AAG) in charge of the NSD is Patrick Rowan. The previous AAG, Kenneth Wainstein, became an advisor to President Bush in March. See, story titled "Bush Names Wainstein Top Homeland Security and Counterterrorism Advisor" in TLJ Daily E-Mail Alert No. 1,734, March 20, 2008.

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