10/28. The Federal Trade Commission (FTC) announced in a release that it will hold a series of public hearings in early 2009 regarding resale price maintenance. It stated that these hearing will explore "for the purposes of enforcing Section 1 of the Sherman Act and Section 5 of the FTC Act, how to best distinguish between uses of resale price maintenance (RPM) that benefit consumers and those that do not".

Verticle RPM, which is sometimes used for consumer IT products, exists when a manufacturer agrees with its distributor(s) to set the minimum price that the distributor(s) can charge for the manufacturer's goods.

Section 1 of the Sherman Act, which is codified at 15 U.S.C. § 1, provides, in part, that "Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal."

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

The FTC has not yet scheduled dates for these hearings. However, it stated in a notice [11 pages in PDF] to be published in the Federal Register that there will be four to six hearings in January through March of 2009.

The FTC seeks both written comments and requests to participate. Written comments are due by December 12, 2008. The notice propounds numerous questions on which the FTC seeks comments.

Neither the release nor the notice identify any industry sectors in which RPM occurs.

RPM is employed with respect to some consumer information technology and communications products. One reason for this is that manufacturers of consumer IT devices sometimes offer products that include numerous new and complicated features and services. Many consumers may not know what the features are, or how to use the products.

In order to promote adoption of new technologies, and sales of their products, manufacturers have an interest in distributors' disseminating information about the new devices through advertising, in store demonstrations, training of employees, and customer support. But, these services impose costs on the distributors who provide them. This can create a free rider problem, when some distributors go to the trouble to provide such information and support, while others do not.

The presence of free riders, offering the products at lower prices, disincents other distributors from educating consumers. This, in turn, disincents manufacturers from offering complex devices that require consumer education. And this inhibits innovation in the IT sector.

Historically, the federal courts have been hostile to RPM in their application of antitrust law. However, this is changing.

Most recently, on June 28, 2007, the Supreme Court of the U.S. (SCUS) issued its opinion [55 pages in PDF] in Leegin Creative Leather Products v. PSKS, an antitrust case regarding minimum RPM by manufacturers and intermediate distributors.

Prior to this opinion, RPM was subject to the antitrust per se rule, rather than the lighter rule of reason standard. This opinion changed the law for vertical RPM. After this opinion, horizontal agreements among competitors to fix prices remain per se violations of the Sherman Act.

See also, story titled "SCUS Holds That All Vertical Price Restraints Are Subject to Rule of Reason" in TLJ Daily E-Mail Alert No. 1,603, June 28, 2007, and story titled "Supreme Court Grants Certiorari in Antitrust Cases" in TLJ Daily E-Mail Alert No. 1,501, December 8, 2006.

These FTC hearings will be free and open to the public, and will be webcast by the FTC.

10/28. Rep. Joe Barton (R-TX), the ranking Republican on the House Commerce Committee (HCC), sent a letter to Thomas Barnett, the Assistant Attorney General in charge of the Department of Justice's (DOJ) Antitrust Division, urging the DOJ to "thoroughly investigate issues of competition and privacy that Yahoo! failed to address fully in responding to questions about the online search advertising partnership agreement between Google and Yahoo!."

Rep. Barton (at left) argued that these issues are pertinent to the DOJ's ongoing antitrust review.

Rep. Barton also stated that he sent a letter to Yahoo on June 18, 2008, but that the "responses seemed designed to obscure rather than clarify how the Google-Yahoo! partnership would work", and that subsequent efforts have been met with "further obfuscation". Hence, he asked that the DOJ pursue this matter.

See, June letter [4 pages in PDF], and story titled "Rep. Barton Asks Yahoo for Information Regarding its Advertising Agreement with Google" in TLJ Daily E-Mail Alert No. 1,782, June 18, 2008.

See also, story titled "House Commerce Committee Leaders Send Interrogatories to Internet Companies Regarding Advertising Practices" in TLJ Daily E-Mail Alert No. 1,806, August 5, 2008.

10/23. The Federal Communications Commission (FCC) filed a motion to dismiss [14 pages in PDF] with the U.S. Court of Appeals (DCCir) in Hartlieb v. FCC, petitions for review of FCC orders related to the merger of XM and Sirius.

The FCC announced its approval of the merger on July 25, 2008. See, story titled "FCC Approves XM Sirius Merger" in TLJ Daily E-Mail Alert No. 1,800, July 25, 2008. The FCC released the text [109 pages in PDF] of its Memorandum Opinion and Order and Report and Order approving the merger, subject to conditions, on August 5, 2008. See, story titled "FCC Releases XM Sirius Merger Order" in TLJ Daily E-Mail Alert No. 1,807, August 6, 2008.

The FCC also released an accompanying Order and Consent Decree [25 pages in PDF] that fined XM $17,394,375 Million, and an Order and Consent Decree [24 pages in PDF] that fined Sirius $2,200,000, for operating terrestrial repeaters at variance from their specification, and authorizing non-compliant FM modulators.

The petitions challenge all three of these orders. The FCC argues that the petitioners lack standing, and that the FCC's "decision to terminate its enforcement action by entering into consent decrees with XM and Sirius is an exercise of discretion by the agency that is not subject to judicial review".

This case is Michael Hartlieb and U.S. Electronics, Inc. v. FCC and USA, U.S. Court of Appeals for the District of Columbia, App. Ct. Nos. 08-1289 and 08-1290 petitions for review of final orders of the FCC.

10/28. The U.S. Court of Appeals (9thCir) issued its opinion [9 pages in PDF] in Truckstop.net v. Sprint. This is an interlocutory appeal from a pre-trial discovery order regarding application of the attorney client privilege to an inadvertently produced e-mail message.

The Court of Appeals dismissed the appeal on the basis that it has no appellate jurisdiction under the collateral order doctrine to review the District Court's interlocutory order addressing status of the e-mail. In contrast, the Court of Appeals would have had appellate jurisdiction over an appeal from an interlocutory order to produce an undisclosed e-mail message.

Truckstop and Sprint entered into a contract regarding wireless local area networks at highway truck stops. Later, Truckstop filed a complaint in U.S. District Court (DIdaho) against Sprint. During discovery Sprint accidentally produced a copy of an e-mail message from one of its employees regarding a meeting with legal counsel. Sprint learned of its error, and filed a motion with the District Court asserting that the attorney client privilege applies to that e-mail. The District Court held that the attorney client privilege applies to some, but not all, of the e-mail. Sprint then filed the present appeal, before final judgment.

The general rule is the Courts of Appeal can only hear appeals from final decisions of trial courts. There are, however, exceptions.

In federal courts, the Court of Appeals wrote, a non-final order is immediately appealable under the collateral order doctrine when it "(1) conclusively determines the disputed question, (2) resolves an important issue completely separate from the merits of the action, and (3) is effectively unreviewable on appeal from a final judgment."

Resolution of the jurisdictional question turns on the third prong of this test.

The Court of Appeals noted that in prior cases it has held that the third prong is met in pretrial discovery matters under a "once the cat is out of the bag" analogy. That is, if the District Court orders the production of privileged information, the order is effectively unreviewable after production and trial because the Court or Appeals cannot put the cat back in the bag once the District Court's order has let the cat out of the bag. In contrast, in the present, prior to the District Court's order, Sprint has already let its own cat out of its bag.

The Court of Appeals explained that "irreparable harm from the disclosure of the allegedly privileged material has already taken place when the material has been inadvertently disclosed".

Returning to its animal analogies, the Court of Appeals wrote that "the chicken has already flown the coup".

It concluded that "we hold that this court lacks appellate jurisdiction under the collateral order doctrine to consider Sprint Communications' appeal. Although Sprint Communications' inadvertent disclosure during the course of discovery of the Neal e-mail may be unfortunate, the chicken has already flown the coop -- the alleged harm from disclosure has already occurred." Appellate review cannot prevent any harm that has not already occurred or that cannot be redressed after final resolution in the District Court.

This case is Truckstop.net, LLC v. Sprint Corporation and Sprint Communications Company, LP, U.S. Court of Appeal for the 9th Circuit, App. Ct. No. 07-35123, an appeal from the U.S. District Court for the District of Idaho, D.C. Nos. CV-04-00561-S-BLW and CV-05-00138-S-BLW, Judge Lynn Winmill presiding. Judge Consuelo Callahan wrote the opinion of the Court of Appeals, in which Judges Melvin Brunetti and Jay Bybee joined.

10/28. The Federal Reserve Board (FRB) published a notice in the Federal Register that announces that "Because of a software problem at the Federal eRulemaking Portal" it "did not receive certain public comments submitted through that portal" in four different proceedings. The FRB requests commenters to resubmit their comments by November 12, 2008. See, Federal Register, October 28, 2008, Vol. 73, No. 209, at Pages 63909-63910.

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This issue includes the following items:
 • FTC to Hold Series of Hearings on Resale Price Maintenance
 • Rep. Barton Urges DOJ to Investigate Both Competition and Privacy Issues in Google Yahoo Review
 • FCC Seeks Dismissal of Petitions for Review of XM Sirius Orders
 • 9th Circuit Dismisses Interlocutory Appeal of Order Regarding Inadvertently Disclosed E-Mail

The next issue will contain extensive coverage of the Google books settlement agreement.

The House will not meet. Its next scheduled meeting is at 11:00 AM on January 3, 2009. See, HConRes 440.

The Senate will meet in pro forma session.

8:00 AM. The Federal Aviation Administration's (FAA) Commercial Space Transportation Advisory Committee will meet. See, notice in the Federal Register, September 16, 2008, Vol. 73, No. 180, at Page 53477. Location: FAA headquarters building, Bessie Coleman Conference Center, 2nd floor, 800 Independence Ave., SW.

9:00 AM. The CompTIA will host an event titled "Tech Policy and the '08 Presidential Elections -- the Campaigns Debate". For more information, contact Tom Liszka at 202-543-3003 or TLiszka at comptia dot org. Location: Murrow Room, National Press Club, 13th Floor, 529 14th St., NW.

12:30 - 2:00 PM. The Federal Communications Bar Association's (FCBA) International Telecommunications Practice Committee will host a brown bag lunch titled "International Undersea Cables -- A Global Market Update/Overview (What’s Behind the New Wave of Planned Construction?)". The speaker will be Timothy Stronge (TeleGeography). For more information, contact Susan O'Connell at susan dot oconnell at fcc dot gov or 202-418-1484. RSVP by October 24 to Jennifer Ullman at Jennifer dot ullman at verizon dot com or 202-515-2432. Location: Verizon, 5th floor, Suite 400 West, 1300 I St., NW.

FULL. 12:30 - 1:45 PM. The New America Foundation (NAF) will host an event titled "McCain v. Obama: The Technology Policy Smackdown". The speakers will be Douglas Holtz-Eakin (McCain campaign), Reed Hundt (Obama campaign), and Nicholas Thompson (NAF moderator). See, notice and registration page. Lunch will be served. Location: NAF, 7th floor, 1630 Connecticut Ave., NW.

Deadline to submit comments to the National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) regarding its SP 800-70 Rev. 1 [66 pages in PDF] titled "DRAFT National Checklist Program for IT Products -- Guidelines for Checklist Users and Developers".

Deadline to submit comments to the Copyright Royalty Judges regarding its proposed regulations that set the rates and terms for the use of musical works in limited downloads, interactive streaming and incidental digital phonorecord deliveries. See, notice in the Federal Register, October 1, 2008, Vol. 73, No. 191, at Pages 57033-57040.

Deadline for the Federal Communications Commission (FCC) to respond to Rep. John Dingell's (D-MI) interrogatories regarding unlicensed use of the TV white space. See, Rep. Dingell's letter [PDF], and story titled "Rep. Dingell Writes FCC Regarding Unlicensed Devices in the White Space" in TLJ Daily E-Mail Alert No. 1,847, October 27, 2008.

Daylight savings time ends.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in ClearValue v. Pearl River Polymers, Inc., App. Ct. No. 2007-1487, a patent infringement case. See, Federal Circuit oral argument calendar. Location: Courtroom 201, Federal Circuit courthouse, LaFayette Square, 717 Madison Place, NW.

Deadline to submit to the Office of the U.S. Trade Representative's (OUSTR) post hearing briefs 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.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Third Further Notice of Proposed Rulemaking (3rdFNPRM) regarding its failed D block auction and its efforts to facilitate a nationwide interoperable broadband wireless network for public safety entities. The FCC adopted and released this 3rdFNPRM [237 pages in PDF] on September 25, 2008. See, story titled "FCC Adopts Further NPRM Regarding Public Safety Broadband Network" in TLJ Daily E-Mail Alert No. 1,832, September 25, 2008. This item is FCC 08-230 in WT Docket No. 06-150 and PS Docket No. 06-229. See, notice in the Federal Register, October 3, 2008, Vol. 73, No. 193, at Pages 57749-57851.

Election Day.

The Supreme Court will hear oral argument in FCC v. Fox Television Stations, Sup. Ct. No. 07-582. See, story titled "Supreme Court Grants Certiorari in FCC Fleeting Expletives Case" in TLJ Daily E-Mail Alert No. 1,732, March 18, 2008. This is a petition for writ of certiorari to the U.S. Court of Appeals (2ndCir). On June 4, 2007, Court of Appeals issued its divided opinion [53 pages in PDF], which is also reported at 489 F.3d 444, holding that the FCC's new policy sanctioning "fleeting expletives" is arbitrary and capricious. See, story titled "2nd Circuit Vacates and Remands FCC Profanity Order" in TLJ Daily E-Mail Alert No. 1,590, June 4, 2007. See also, Supreme Court docket. Location: Supreme Court, 1 First St., NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Sumitomo Mitsubishi Silicon Corporation v. Memc Electronic Materials, Inc., App. Ct. No. 2007-1578. See, Federal Circuit oral argument calendar. Location: Courtroom 201, Federal Circuit courthouse, LaFayette Square, 717 Madison Place, NW.

11:00 AM. The Federal Communications Commission (FCC) may meet. See, agenda [PDF]. Location: FCC, 445 12th St., SW.

The Federal Communications Commission (FCC) will begin Auction 85, regarding LPTV and TV Translator Digital Companion Channels. See, notice in the Federal Register, September 12, 2008, Vol. 73, No. 178, at Pages 53020-53025.

9:00 AM. The Bureau of Industry and Security's (BIS) Information Systems Technical Advisory Committee (ISTAC) will meet. The agenda includes "Digital Forensics", "Industry Encryption Presentation", "Future Microprocessor Technologies", and "Discussion of Wassenaar Proposals for 2009". See, notice in the Federal Register, October 22, 2008, Vol. 73, No. 205, at Page 62951. Location: Room 3884, Hoover Building, 14th St., between Constitution and Pennsylvania Aves., NW.

9:00 AM - 4:00 PM. Day one of a two day meeting of the National Archives and Records Administration's (NARA) Advisory Committee on the Electronic Records Archives (ACERA). This meeting is free and open to the public. See, notice in the Federal Register, October 14, 2008, Vol. 73, No. 199, at Page 60721. Location: 700 Pennsylvania Ave., NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Wavetronix v. EIS Electronic, App. Ct. No. 2008-1129. See, Federal Circuit oral argument calendar. Location: Courtroom 201, Federal Circuit courthouse, LaFayette Square, 717 Madison Place, NW.

6:00 - 8:15 PM. The DC Bar Association will host the first of two parts of a program titled "Export Control Courses". This first part is titled "Introduction to Export Controls". The speakers will be Thomas Scott and Carol Kalinoski. The total price to attend ranges from $140 to $210. 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.

Deadline to submit comments to the Securities and Exchange Commission (SEC) in response to its interpretive release regarding the use of company web sites under the Exchange Act and the antifraud provisions of the federal securities laws, and the use of technology generally in providing information to investors. See, notice in the Federal Register, August 7, 2008, Vol. 73, No. 153, at Pages 45862-45874.

9:00 AM. The Bureau of Industry and Security's (BIS) Information Systems Technical Advisory Committee (ISTAC) will hold a closed meeting. See, notice in the Federal Register, October 22, 2008, Vol. 73, No. 205, at Page 62951. Location: Room 6087B, Hoover Building, 14th St., between Constitution and Pennsylvania Aves., NW.

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). This meeting is free and open to the public. See, notice in the Federal Register, October 14, 2008, Vol. 73, No. 199, at Page 60721. Location: 700 Pennsylvania Ave., NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Biltmore Forest Broadcasting v. US, App. Ct. No. 2008-5055. See, Federal Circuit oral argument calendar. Location: Courtroom 201, Federal Circuit courthouse, LaFayette Square, 717 Madison Place, NW.

12:00 NOON. The Cato Institute will host a discussion of the book [Amazon] titled "Future Imperfect: Technology and Freedom in an Uncertain World". The speaker will be David Friedman (author). See, notice and registration page. This event is free and open to the public. Lunch will be served after the program. The Cato will web cast this event. Location: Cato, 1000 Massachusetts Ave., NW.

1:30 - 3:00 PM. George Washington University's (GWU) law school's IP Speaker Series will host a lecture by Jeanne Fromer (Fordham University law school) titled "Claiming Intellectual Property". See, notice. Location: Student Conference Center (LIS201), GWU law school.

2:00 - 3:00 PM. The President's National Security Telecommunications Advisory Committee (PNSTAC) will hold a partially closed meeting by teleconference. The open portion of the meeting will be from 2:00 to 2:30 PM. It will include consideration of the "national security/emergency preparedness internet protocol-based traffic report". The closed portion of the meeting will be from 2:30 to 3:00 PM. It will cover "core network assurance, cyber collaboration and internet identity". See, notice in the Federal Register, October 16, 2008, Vol. 73, No. 201, at Page 61433.

RESCHEDULED FROM OCTOBER 8. 2:00 - 4:00 PM. The Department of State's (DOS) International Telecommunication Advisory Committee will meet to prepare for the International Telecommunication Union (ITU) Council Meeting to be held on November 12-21, 2008, in Geneva, Switzerland. See, original notice in the Federal Register, September 22, 2008, Vol. 73, No. 184, at Page 54655. Location: 10th floor, 1120 20th St., NW. See, rescheduling notice in the Federal Register, September 26, 2008, Vol. 73, No. 188, at Pages 55891-55892.

6:00 - 8:15 PM. The DC Bar Association will host a program titled "How to Litigate a Patent Infringement Case". The speakers will be Patrick Coyne and Jerry Ivey of Finnegan Henderson. 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.

7:00 - 9:30 PM. The Federal Communications Bar Association (FCBA) will host an event titled "19th Annual FCBA Charity Auction". See, event web site. Location: Capital Hilton, 1001 16th St., NW.

Deadline to submit comments to the Office of the U.S. Trade Representative (OUSTR) to assist it in prepared its annual National Trade Estimate Report on Foreign Trade Barriers (NTE). This report is required by 19 U.S.C. § 2241. The NTE report is due annually by March 31. See, notice in the Federal Register, July 31, 2008, Vol. 73, No. 148, at Pages 44785-44786.

Deadline to submit comments to the Federal Trade Commission (FTC) regarding its proposed changes to its Rules of Practice regarding its adjudicative proceedings. See, notice in the Federal Register, October 7, 2008, Vol. 73, No. 195, at Pages 58831-58858.

Deadline to submit comments to the Office of Management and Budget (OMB) regarding the Department of Homeland Security's (DHS) National Cyber Security Division's information collection request titled "1670-NEW, US-CERT Incident Reporting". The DHS announced this request for comments in a notice in the Federal Register, October 7, 2008, Vol. 73, No. 195, at Pages 58608-58609. The DHS announced this information collection request in a notice in the Federal Register, June 11, 2008, Vol. 73, No. 113, at Pages 33101-33102.