9/25. The Federal Communications Commission (FCC) published a Public Notice and a notice in the Federal Register that request comments on ex parte filings submitted by the Association of Public Safety Communications Officials, International (APCO), National Emergency Number Association (NENA), AT&T, Sprint Nextel, and Verizon Wireless regarding the FCC's E-911 location tracking accuracy mandates.

On September 11, 2007, the FCC adopted a Report and Order (R&O) regarding E911 Phase II location accuracy requirements at the Public Safety Answering Point (PSAP) service area level.

The FCC released the text [35 pages in PDF] of this R&O on November 20, 2007. See, story titled "FCC Adopts E911 Location Tracking Accuracy Benchmarks" in TLJ Daily E-Mail Alert No. 1,640, September 17, 2007. This R&O is FCC 07-166 in PS Docket No. 07-114 and CC Docket No. 94-102. See also, story titled "FCC Extends E911 Location Tracking Rules to Interconnected VOIP" in TLJ Daily E-Mail Alert No. 1,589, May 31, 2007.

AT&T, T-Mobile, Verizon Wireless, Sprint Nextel, the Rural Cellular Association filed petitions for review with the U.S. Court of Appeals (DCCir), as well as emergency motions for stay. See, FCC's March 10, 2008, opposition [24 pages in PDF] to motions for stay.

On March 25, 2008, the Court of Appeals issued an order staying the FCC's order.

On July 14, 2008, the APCO and NENA sent a letter [2 pages in PDF] to the FCC in which they stated that "We are now willing to accept compliance measurements at the county level", as opposed to the PSAP level. The letter also addressed other issues.

On July 31, 2008, the FCC filed with the Court or Appeals a pleading titled "Motion for Voluntary Remand and Vacatur" which requested remand based on the proposals contained in the July 14 APCO/NENA letter.

See also, August 20, 2008, letter to FCC of NENA, APCO, and Verizon Wireless; August 21, 2008, letter of Sprint Nextel; and August 25, 2008, letter of NENA, APCO and AT&T

And see, presentation outline [15 pages in PDF] for True Position's September 11 ex parte meeting with FCC staff, and presentation outline [14 pages in PDF] for T-Mobile's August 29 ex parte meeting with FCC staff, presentation outline [PDF] for Verizon Wireless's September 8 ex parte meeting with FCC staff, and presentation outline [14 pages in PDF] for Sprint Nextel's August 20 meeting with FCC staff.

The FCC now seeks public comments on this matter.

Initial comments are due by October 6, 2008. Reply comments are due by 12:00 NOON on October 14, 2008.

See, Federal Register, September 25, 2008, Vol. 73, No. 187, at Pages 55473-55495. The Public Notice is DA 08-2129 in PS Docket No. 07-114.

9/25. The U.S. Court of Appeals (9th) issued its opinion [25 pages in PDF] in Directv v. Webb, a satellite television signal piracy case involving interpretation of 47 U.S.C. § 605 and 18 U.S.C. § 2511.

The Court of Appeals affirmed in part and reversed in part. It affirmed the findings of liability for signal theft piracy. It also held that § 605(e)(4)'s ban on modification of access devices does not apply to end users who employ pirate access devices for their own personal use. It also declined to apply the Wiretap Act's two year statute of limitations to violations of § 605, which contains no time limitation. It held that the one year limitation of the analogous state statute applies.

Background. Directv (DTV) provides television programming by direct broadcast satellite (DBS). It uses conditional access technology that encrypts its satellite transmissions. It then provides its paying customers with access cards that decrypt these satellite transmissions. These access cards contain chips that instruct receivers to decrypt only those signals covered by the customer's subscription package.

The Court of Appeals elaborated. "The access card is a ``smart card´´ that contains an embedded computer chip and memory, which, when authorized, allows the integrated receiver/decoder to process DTV's signals for television viewing. The access card is therefore critical to receiving usable signals from DTV. In theory, the other hardware is of little use without an authorized access card because that hardware cannot unscramble DTV's encrypted signals. In reality, so-called ``pirate access devices´´ exist that will simulate authorization. By using such a device, a signal pirate can circumvent DTV's encryption technology and obtain unpaid access to DTV programming."

Scott Webb Webb purchased a DTV television hardware system, but did not pay DTV to activate an account. Instead, he bought a series of pirate access devices. Also, he modified one of these devices for his own use, and modified other devices for the use of others.

District Court. DTV filed a complaint in U.S. District Court (CDCal) against Webb alleging signal theft in violation of 18 U.S.C. § 2511 and 47 U.S.C. § 605(a), and modification of access devices in violation of 47 U.S.C. § 605(e)(4).

The District Court conducted a bench trial. It found Webb liable for committing one act of unlawful signal reception in violation of 47 U.S.C. § 605(a), fifty-seven acts of signal interception in violation of 28 U.S.C. § 2511(1)(a), and one act of access card modification in violation of 47 U.S.C. § 605(e)(4).

The one act of access card modification involved a card used by Webb. The District Court held that the modifications of access cards used by others occurred beyond the statutory time limitation.

It then awarded DTV statutory damages of $1,000 for Webb's § 605(a) violation, $10,000 for his § 605(e)(4) violation, and $123,700 for 1,237 days of signal interception in violation of § 2511(1)(a). The District Court also awarded DTV $69,681.20 in costs and attorneys' fees.

Statutes. § 2511, which was enacted as part of the Electronic Communications Privacy Act of 1986 (ECPA), pertains to "Interception and disclosure of wire, oral, or electronic communications prohibited".

It creates a civil remedy for interception of certain communications, including satellite piracy. It provides, in part, that "any person who ... intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication ... shall be punished as provided in subsection (4) or shall be subject to suit as provided in subsection (5)."

§ 605(a), which was enacted as part of the Cable Communications Policy Act of 1984, provides that "no person receiving, assisting in receiving, transmitting, or assisting in transmitting, any interstate or foreign communication by wire or radio shall divulge or publish the existence, contents, substance, purport, effect, or meaning thereof, except through authorized channels of transmission or reception ...".

§ 605(e) provides that "Any person who manufactures, assembles, modifies, imports, exports, sells, or distributes any electronic, mechanical, or other device or equipment, knowing or having reason to know that the device or equipment is primarily of assistance in the unauthorized decryption of satellite cable programming, or direct-to-home satellite services, or is intended for any other activity prohibited by subsection (a) of this section, shall be fined not more than $500,000 for each violation, or imprisoned for not more than 5 years for each violation, or both."

There are also civil remedies for violation of these prohibitions.

Court of Appeals. The Court of Appeals affirmed the judgment of the District Court as to the § 605(a) and § 2511(1)(a) signal theft holdings. However, it reversed as to the § 605(e)(4) modification of access device holding.

The Court of Appeals held that § 605(e)(4) "does not apply to end-users, meaning persons who employ pirate access devices for their own personal use, rather than for sale or distribution to others."

The Court of Appeals relied upon is 2007 opinion in DirecTV, Inc. v. Huynh, 503 F.3d 847, for its reversal as to the § 605(e)(4) holdings.

§ 605 contains no time limitation for the filing of complaints. The District Court applied the one year limitation contained in the California piracy act. DTV argued that the two year limitation in the federal Wiretap Act should apply. The Court of Appeals concluded, after a lengthy discussion, that the limitation in the analogous state statute applies.

This case is Directv, Inc. v. Scott Webb, U.S. Court of Appeals for the 9th Circuit, App. Ct. Nos. 04-56847 and 04-56913, appeals from the U.S. District Court for the Central District of California, D.C. No. CV-03-03399-SVW, Judge Stephen Wilson presiding. Judge Richard Clifton wrote the opinion of the Court of Appeals, in which Judges Proctor Hug and Harry Pregerson joined.

9/25. The U.S. District Court (DMinn) granted a new trial in a music copyright infringement case involving use of the Kazaa peer to peer (P2P) network. See, opinion [44 pages in PDF].

Introduction. Last year, this was the first P2P infringement case against an individual infringer to reach a verdict. The defendant, Jamie Thomas, was found liable by a jury, which awarded the record company plaintiffs $220,000 in damages.

The District Court's grounds for the mistrial was an erroneous jury trial. At issue is whether making available copyrighted songs on a P2P system is sufficient to show infringement of the distribution right under 17 U.S.C. § 106(3), or whether the copyright holder must also show actual distribution.

The jury instruction adopted the making available position advocated by the record industry. However, the District Court changed course, and held that actual distribution is required. This is a set back for the record industry.

This opinion advances strong policy arguments for not imposing $220,000 in damages. But, its legal analysis is weak. And, perhaps indirectly acknowledging that it is based on the policy preferences of the presiding judge, the opinion concludes with a plea to the Congress to rewrite the statute. Judge Davis argued that the defendant is a "consumer", that her actions were "common", and that a $220,000 award would be "oppressive".

Background. The plaintiffs in this case are Capitol Records, Inc., Sony BMG Music Entertainment, Arista Records, LLC, Interscope Records, Warner Bros. Records, Inc., and UMG Recordings, Inc. The plaintiffs are members of the Recording Industry Association of America (RIAA).

In 2006 the plaintiffs filed a complaint in the District Court against Thomas alleging copyright infringement.

At trial the District Court gave the following instruction to the jury: "The act of making copyrighted sound recordings available for electronic distribution on a peer-to-peer network, without license from the copyright owners, violates the copyright owners' exclusive right of distribution, regardless of whether actual distribution has been shown."

On October 4, 2007, a trial jury of the District Court returned a verdict of infringement in favor of the record companies, and awarded statutory damages totaling $220,000. See, story titled "Jury Returns Verdict Against P2P Infringer" in TLJ Daily E-Mail Alert No. 1,651, October 8, 2007.

On September 25, 2008, the District Court vacated the jury verdict and granted a new trial.

The jury could have found liability for violation of either the plaintiffs' distribution right, or its performance right. It did not specify which, or both, it relied upon in reaching its verdict.

17 U.S.C. § 106 provides in part that "the owner of copyright under this title has the exclusive rights to do and to authorize any of the following ... (3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending ... (4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly".

District Court Opinion. The District Court first discussed what might be the plain meaning of § 106(3).

It wrote that "Courts have split regarding whether making copyrighted materials available for distribution constitutes distribution under § 106(3)."

It also wrote that while "the leading copyright treatises conclude that making a work available is insufficient to establish distribution", the "Register of Copyrights, Marybeth Peters, has opined to Congress that making a copyrighted work available violates the distribution right."

The District Court noted that in criminal prosecutions of persons who make child pornography available on P2P systems, courts have held that the relevant statute's term "distribution" encompasses making available.

But, this District Court found the comparison unpersuasive.

In the end, the District Court opined that "the plain meaning of the term ``distribution´´ does not including making available and, instead, requires actual dissemination."

The District Court also noted that the World Intellectual Property Organization Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT) both "recognize a making-available right that is not dependent on proof that copies were actually transferred to particular individuals".

It also wrote that "by ratifying and adopting the treaties, the legislative and executive branches indicated that U.S. law complied with the treaties by protecting that making-available right". Moreover, free trade agreements also recognize a making available right.

However, the District Court concluded that "the fact that the WIPO treaties protect a making-available right does not create an enforceable making-available right for Plaintiffs in this Court".

But, the plaintiffs do not argue that treaties create the right. They argue that § 106(3) creates the right, and that Supreme Court cases hold that the courts should not construe ambiguous statutes in a manner that is inconsistent with treaty obligations.

The District Court concluded, though, at page 40 of its opinion, that this longstanding doctrine of statutory interpretation does not apply in this case because the statute is unambiguous and there is "clear congressional intent" in § 106(3).

This conclusion, however, follows 40 pages devoted largely to setting forth the differences of opinion as to the meaning and intent of § 106(3). The District Court pointed out that some courts, the Register of Copyright, and numerous Presidents and members of Congress who negotiated and ratified trade agreements interpret § 106(3) to embody a making available right, while some other courts, and some authors of treatises interpret § 106(3) not to embody a making available right.

Then, having concluded that the statute is not ambiguous, and the intent of Congress is clear, the District Court urged the Congress to revise its clear and unambiguous language.

It urged the Congress to "to amend the Copyright Act to address liability and damages in peer-to-peer network cases such as the one currently before this Court"

If the statute were clear and unambiguous in not creating a making available right, as this Court now opines, then other courts would reach the same conclusion, and there would be no need to revise the statute.

The District Court also wrote that Thomas is a consumer, rather than a business engaged in infringement for profit.

The District Court also wrote that "it would be a farce to say that a single mother's acts of using Kazaa are the equivalent, for example, to the acts of global financial firms illegally infringing on copyrights in order to profit in the securities market. Cf. Lowry's Reports, Inc. v. Legg Mason, Inc., 271 F. Supp. 2d 737, 741-42 (D. Md. 2003)".

The District Court misrepresented the Lowry's Reports case. First, in that case, Legg Mason was a consumer of the copyrighted works for which it did not pay the copyright holder. It republished issues of Lowry's Reports newsletters on its corporate intranet. It did not sell the copyrighted works for profit. Second, the jury verdict damages award in the Thomas case was only about one per cent of the jury verdict damages award in the Lowry's Reports case -- $220,000 versus $19,725,270.

The trial jury of the U.S. District Court (DMd) returned its verdict in favor of Lowry's Report on October 3, 2003. The District Court let this verdict stand on February 10, 2004. See also, story titled "District Court Lets Stand $19,725,270.00 Infringement Verdict for Copying Newsletter onto Corporate Intranet" in TLJ Daily E-Mail Alert No. 837, February 16, 2004.

Amicus Briefs. The Electronic Frontier Foundation (EFF), Public Knowledge (PK), Computer and Communications Industry Association (CCIA), and the U.S. Internet Association filed an amicus brief [18 pages in PDF] on June 20, 2008.

They argued that § 106(3) "cannot be read to include ``making available.´´"

They argued that "The plain language of the Copyright Act and applicable precedents mandate that an infringement of the distribution right requires the unauthorized, actual dissemination of copies of a copyrighted work -- a completed act of transfer. To permit a finding of distribution liability based on anything less would be to transform section 106(3) into an unbounded form of civil attempt liability, even where no copies had ever been distributed and thus no harm had ever been inflicted on the copyright owner."

They also wrote that "More than just Ms. Thomas' liability is at stake. Acceptance of the `making available´´ theory could disrupt copyright law in a variety of other contexts."

The Progress & Freedom Foundation (PFF) submitted an amicus brief [PDF] in which it argued that "U.S. law does grant copyright owners the ``making-available right´´ expressly required by nine binding international agreements -- two treaties and seven bilateral or multilateral Free Trade Agreements".

The term "making available", this brief argues, "derives from the multilateral treaties that prescribe international norms for digital-age copyright protection --treaties that the United States crafted, ratified, and purportedly implemented in its domestic law".

The PFF's Tom Sydnor, who wrote the amicus brief, also wrote in a statement on September 25 that the District Court "concluded that if a KaZaA user shares two files -- one encoding pornography and the other encoding a song -- then she has ``distributed´´ the pornography but has not ``distributed´´ the song."

He wrote that "That conclusion makes no sense, and the reasoning needed to achieve it is both predictably and fatally flawed. Indeed, to reach this odd conclusion, the Court had to contradict itself repeatedly by adopting internally inconsistent interpretations of both statutory text and judicial precedents. The Court also had to hold that Congress and the President have, at least eight times, executed international obligations of the United States unreasonably or maliciously by concluding that our Copyright Act actually means what it words actually say. The Thomas Court, in other words, accuses multiple Congresses and Presidents of unreasonably executing the Treaty and Foreign Commerce Powers conferred upon them by the Constitution."

He concluded that "Such reasoning is unlikely to survive serious scrutiny. I hope that yesterday's decision in Thomas will be appealed and overturned."

This case is Capitol Records, Inc., et al. v. Jammie Thomas, U.S. District Court for the District of Minnesota, D.C. No. 06-1497 (MJD/RLE), Judge Michael Davis presiding.

The House will meet at 10:00 AM for legislative business. The agenda includes consideration of S 3325 [LOC | WW], the "Prioritizing Resources and Organization for Intellectual Property (PRO-IP) Act of 2008", HR __, the "Webcaster Settlement Act", and HR 6146 [ LOC | WW], a bill to prohibit recognition and enforcement of certain foreign defamation judgments. See, Rep. Hoyer's schedule for September 27.

The Senate will meet at 9:30 AM. It will resume consideration of HR 2638 [ LOC | WW], the "Consolidated Security, Disaster Assistance, and Continuing Appropriations Act, 2009".

9:30 - 11:30 AM. The National Archives and Records Administration's (NARA) Public Interest Declassification Board (PIDB) will meet to "discuss declassification program issues". See, notice in the Federal Register, September 17, 2008, Vol. 73, No. 181, at Page 53905. Location: NARA, Room 105, 700 Pennsylvania Ave., NW.

The House will meet at 1:00 PM for legislative business. The agenda includes a postponed suspension vote on S 3325 [LOC | WW], the "Prioritizing Resources and Organization for Intellectual Property (PRO-IP) Act of 2008". See, Rep. Hoyer's schedule for September 28.

Rosh Hashana begins at sundown.

The Senate will meet at 11:00 AM. It will consider the House message to accompany HR 2095 [ LOC | WW], the "Federal Rail Safety Improvement Act".

The Supreme Court will hold the opening conference of its October 2008 term.

12:00 NOON - 2:00 PM. The American Enterprise Institute (AEI) will host a panel discussion titled "The Millennials: The Dumbest Generation or the Next Great Generation?". The speakers will be Mark Bauerlein, author of the book titled "The Dumbest Generation: How the Digital Age Stupefies Young Americans and Threatens Our Future", Neil Howe, and Frederick Hess (AEI). See, notice. Location: AEI, 12th floor, 1150 17th St., NW.

2:00 - 4:00 PM. The Department of State's (DOS) Advisory Committee on International Economic Policy will hold a meeting titled "Policies, Programs and Total Economic Engagement with China". See, notice in the Federal Register, September 15, 2008, Vol. 73, No. 179, at Page 53317. Location: DOS, Room 1107, 2201 C St., NW.

Day one of a three day event hosted by the National Association of Broadcasters (NAB) titled "NAB Satellite Uplink Operators Training Seminar". Location: NAB, 1771 N St, NW.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) regarding telecommunications relay services and speech to speech services for individuals with hearing and speech disabilities, and speech to speech services and internet protocol speech to speech telecommunications relay service. The FCC adopted this NPRM on June 11, 2008, and released the text [19 pages in PDF] on June 24, 2008. It is FCC 08-149 in CG Docket Nos. 03-123 and 08-15. See, notice in the Federal Register, August 13, 2008, Vol. 73, No. 157, at Pages 47120-47122.

Rosh Hashana.

9:00 - 11:00 AM. The Information Technology and Innovation Foundation (ITIF) will host an event. The speaker will be Gregory Tassey, Senior Economist at the National Institute of Standards and Technology (NIST), and author of the book [Amazon] titled "The Technology Imperative", and the book [Amazon] titled "The Economics of R&D Policy". See, notice. Coffee and parties will be served. Location: ITIF, Suite 200, 1250 Eye St., NW.

Day two of a three day event hosted by the National Association of Broadcasters (NAB) titled "NAB Satellite Uplink Operators Training Seminar". Location: NAB, 1771 N St, NW.

Second of three deadlines for the Federal Communications Commission (FCC) and National Telecommunications and Information Administration (NTIA) to comply with the request of Rep. John Dingell (D-MI), Chairman of the House Commerce Committee (HCC), and Rep. Ed Markey (D-MA), Chairman of the HCC's Subcommittee on Telecommunications and the Internet, for a series of three written status reports on whether the FCC and NTIA anticipate that additional funds will be needed for the DTV transition converter box coupon program. See, March 5, 2008, letter [3 pages in PDF].

Deadline for repeat manufacturers of digital to analog converter boxes to submit to the National Telecommunications and Information Administration (NTIA) notices of intent to participate with addition converter boxes in the NTIA's TV Converter Box Coupon Program. See, notice in the Federal Register, July 24, 2008, Vol. 73, No. 143, at Pages 43211-43212.

Deadline to submit comments to the National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) regarding its draft SP 800-37, Revision 1 [81 pages in PDF] titled "Guide for Security Authorization of Federal Information Systems: A Security Lifecycle Approach".

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to the CTIA's Petition for Declaratory Ruling [44 pages in PDF] regarding 47 U.S.C. § 332(c)(7)(B), ensuring timely siting review, and preemption under 47 U.S.C. § 253 of state and local ordinances that classify all wireless siting proposals as requiring a variance. This is WT Docket No. 08-165. See, August 14, 2008, Public Notice (DA 08-1913) and notice in the Federal Register, August 29, 2008, Vol. 73, No. 169, at Pages 50972-50973.

8:30 AM. The Internet Corporation for Assigned Names and Numbers (ICANN) will host an event titled "Improving Institutional Confidence". For more information, contact Maria Farrell at 310-823-9358 or maria dot farrell at icann dot org. Location: Ballroom, National Press Club, 13th Floor, 529 14th St., NW.

12:00 NOON - 1:30 PM. The DC Bar Association will host a program titled "An Election Year Round-up of International Trade and Customs Issues". The speakers will be Warren Maruyama (General Counsel, OUSTR), Alice Kipel (Steptoe & Johnson), Timothy Reif (Chief Democratic Trade Counsel, House Ways and Means Committee), Demetrios Marantis (Chief International Trade Counsel, Senate Finance Committee), Jonathan Stoel (Hogan & Hartson), Daniel Pearson (Vice Chair, International Trade Commission), David Spooner (Department of Commerce). The price to attend ranges from $10 to $35. For more information, contact 202-626-3463. See, notice. Location: Hogan & Hartson, 13th floor, 555 13th St., NW.

6:00 - 9:15 PM. The DC Bar Association will host a program titled "How to Protect and Enforce Trademark Rights: A Primer". The speakers will be Steven Hollman (Hogan & Hartson) and Shauna Wertheim (Roberts Mardula & Wertheim). The price to attend ranges from $80 to $115. For more information, contact 202-626-3488. See, notice. This event qualifies for continuing legal education (CLE) credits. Location: DC Bar Conference Center, B-1 Level, 1250 H St., NW.

Day three of a three day event hosted by the National Association of Broadcasters (NAB) titled "NAB Satellite Uplink Operators Training Seminar". Location: NAB, 1771 N St, NW.

TIME? The Office of the U.S. Trade Representative's (OUSTR) Trade Policy Staff Committee (TPSC) hold a public hearing to hear testimony to assist it in preparing its annual report to the Congress on the People's Republic of China's compliance with the commitments made in connection with its accession to the World Trade Organization (WTO). This report is requires by Section 421 of the Trade Act of 1974, the relevant portion of which section is codified at 22U.S.C. § 6951. See, notice in the Federal Register, July 31, 2008, Vol. 73, No. 148, at Pages 44783-44785. Location?

9:30 AM - 12:00 NOON. The American Enterprise Institute (AEI) will host an event titled "Trade Tsunami: Will U.S.-Japanese Trade Stay Afloat in a Global Crisis". The speakers will be Wendy Cutler (Office of the U.S. Trade Representative), Kenji Goto (Embassy of Japan), Matthew Goodman (Stonebridge International), Claude Barfield (AEI), and Michael Auslin (AEI). See, notice. Location: 12th floor, 1150 17th St., NW.

12:00 NOON - 1:30 PM. The DC Bar Association will host a program titled "50 Hot Technology Tips, Tricks & Web Sites For Lawyers". The price to attend ranges from $15 to $35. For more information, contact 202-626-3463. See, notice. Location: DC Bar Conference Center, B-1 level, 1250 H St., NW.

8:00 AM - 12:30 PM. The National Institutes of Health's (NIH) Biomedical Computing and Health Informatics Study Section will hold a closed meeting. See, notice in the Federal Register, September 3, 2008, Vol. 73, No. 171, at Page 51493. Location: Hilton Washington DC/Rockville, 1750 Rockville Pike, Rockville, MD.

12:30 - 2:00 PM. The Federal Communications Bar Association's (FCBA) International Telecommunications Committee will host a brown bag lunch titled "Discussion on the interplay between Team Telecom, CFIUS, and the FCC, and how to make the review process faster and easier". For more information, contact Troy Tanner at troy dot tanner at bingham dot com or 202-373-6560. Location: Bingham McCutchen, 11th floor, 2020 K St., NW.

1:00 - 2:30 PM. The Information Technology and Innovation Foundation (ITIF) will host an event titled "Understanding Our Digital Quality of Life". The ITIF will release a report titled "Digital Quality of Life: Understanding the Personal and Social Benefits of the Information Technology Revolution". The speakers will be Craig Mundie (Chief Research and Strategy Officer for Microsoft) and Rob Atkinson (ITIF). Light refreshments will be served. See, notice and r egistration page. Location: Room LJ 162, Library of Congress, Thomas Jefferson Building.

6:00 - 8:00 PM. The Federal Communications Bar Association (FCBA) will host an event titled "FCBA Fall Reception with the FCC and NTIA Bureau and Office Chiefs". Prices vary. See, registration form [PDF]. Location: Mayflower Hotel, 1127 Connecticut Ave., NW.

8:30 AM. The Gore Commission, 10 Years Later: The Public Interest Obligations of Digital TV Broadcasters in Perfect Hindsight

12:15 - 1:30 PM. The Federal Communications Bar Association's (FCBA) Cable Practice and Wireline Committees will host a brown bag lunch titled "The effects of the Commission's Network Management Order on broadband providers and their customers". Location: Harris Wiltshire & Grannis, 12th floor, 1200 18th St., NW.

Deadline to submit initial comments to the Federal Communications Commission's (FCC) Notice of Proposed Rulemaking (NPRM) regarding broadcast low power auxiliary stations operating in the 700 MHz band, such as wireless microphones. This NPRM is FCC 08-188 in WT Docket Nos. 08-166 and 08-167. The FCC adopted this NPRM on August 15, 2008, and announced it and released the text [24 pages in PDF] on August 21, 2008. See, story titled "FCC Releases NPRM on Wireless Microphones Operating in 700 MHz Band" in TLJ Daily E-Mail Alert No. 1,817, August 21, 2008. See, notice in the Federal Register, September 3, 2008, Vol. 73, No. 171, at Pages 51406-51415.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) regarding expanding the scope of services and products covered by the FCC's schools and libraries tax and subsidy program. The FCC adopted this item on July 25, 2008, and released the text [26 pages in PDF] on July 31, 2008. It is FCC 08-173 in CC Docket No. 02-6. See, notice in the Federal Register, August 19, 2008, Vol. 73, No. 161, at Pages 48352-48359.

Deadline to submit to the Office of the U.S. Trade Representative's (OUSTR) pre-hearing briefs and requests to appear in connection with the 2008 Generalized System of Preferences (GSP) Annual Review. See, notice in the Federal Register, September 12, 2008, Vol. 73, No 178, at Pages 53054-53056.

10:00 AM - 4:00 PM. The U.S.-China Economic and Security Review Commission will hold a public meeting to work on its 2008 Annual Report to Congress. See, notice in the Federal Register, July 29, 2008, Vol. 73, No. 146, at Pages 43978-43979, and notice in the Federal Register, September 18, 2008, Vol. 73, No. 182, at Page 54205. Location: Conference Room 333, Hall of the States, 444 North Capitol St., NW.

Deadline to submit comments to the U.S. Patent and Trademark Office (USPTO) in response to its notice of proposed rulemaking regarding changes to its rules of practice to limit the types of correspondence that may be submitted to the USPTO by facsimile, and to increase the minimum font size for use on papers submitted to the USPTO for a patent application, patent or reexamination proceeding. See, notice in the Federal Register, August 6, 2008, Vol. 73, No. 152, at Pages 45662-45673.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to certain ex parte filings submitted by the Association of Public Safety Communications Officials, International (APCO), National Emergency Number Association (NENA), AT&T, Sprint Nextel, and Verizon Wireless regarding the FCC's location accuracy mandates. See, FCC Public Notice [13 pages in PDF], Public Notice [PDF] and notice in the Federal Register, September 25, 2008, Vol. 73, No. 187, at Pages 55473-55495. These Public Notices are DA 08-2129 and DA 08-2149 in PS Docket No. 07-114.

Deadline to submit reply comments to the Federal Communications Commission's (FCC) Media Bureau in response to the PPM Coalition's (PPMC) September 2, 2008, filing titled "Emergency Petition for Section 403 Inquiry." This petition asks the FCC to open an inquiry into Arbitron's use of Portable People Meters (PPM). This item is DA 08-2048 in MB Docket No. 08-187.

9/25. The U.S. Court of Appeals (9th) issued its opinion [20 pages in PDF] in USA v. Able Time, a customs case involving trademark law, in which U.S. Customs imposed a penalty upon a company that imported watches with counterfeit marks. What is notable is that the holder of the counterfeited mark did not make the type of goods to which the importer attached the mark.

In this case, the importer, Able Time, Inc., imported watches bearing the mark "TOMMY". Tommy Hilfiger makes clothes, cosmetics, colognes, and other consumer products. However, at the relevant time, it did not make watches.

U.S. Customs filed a complaint in U.S. District Court (CDCal) against Able Time seeking a civil penalty under 19 U.S.C. § 1526. The District Court granted summary judgment to Able Time. The U.S. brought this appeal.

The Court of Appeals reversed.

Section 1516(a) provides that it is "unlawful to import into the United States any merchandise of foreign manufacture if such merchandise ... bears a trademark owned by a citizen of, or by a corporation or association created or organized within, the United States ... unless written consent of the owner of such trademark is produced".

Section 1516(e) provides for seizure and forfeiture.

Section 1516(f) then provides that "Any person who directs, assists financially or otherwise, or aids and abets the importation of merchandise for sale or public distribution that is seized under subsection (e) of this section shall be subject to a civil fine."

The Court of Appeals held that "the Tariff Act does not contain an identity of goods or services requirement. We hold that Customs may impose a civil penalty pursuant to 19 U.S.C. § 1526(f) upon an importer of merchandise bearing a counterfeit mark, even though the owner of the registered mark does not manufacture or sell the same type of merchandise."

It remanded to the District Court "to determine whether (1) the mark on the watches is identical to or substantially indistinguishable from the registered mark pursuant to 15 U.S.C. § 1127, and (2) whether the offending mark copies or simulates the registered mark pursuant to 15 U.S.C. § 1124, which amounts to the traditional likelihood of confusion test for infringement."

This case is U.S.A. v. Able Time, Inc., U.S. Court of Appeals for the 9th Circuit, App. Ct. No. 06-56033, an appeal from the U.S. District Court for the Central District of California, D.C. No. CV-04-02695-RMT, Judge Robert Takasugi presiding. Judge Richard Clifton wrote the opinion of the Court of Appeals, in which Judges Stephen Trott and Consuelo Callahan joined.

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