11/6. On November 5, 2008, the Federal Trade Commission (FTC) filed a civil complaint [pages in PDF] in U.S. District Court (MDFl) against CyberSpy Software LLC and Tracer R. Spence alleging violation of Section 5(a) of the FTC Act in connection with the sale of spyware software with keylogger and other data theft capabilities.

On November 6, the District Court issued a temporary restraining order [13 pages in PDF].

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

The complaint alleges that CyberSpy, which also does business as RemoteSpy, has marketed and sold spyware software that can be remotely deployed and secretly installed. The complaint states that this software records every keystroke typed on a computer, also known as keylogger; it also records other computer activities.

The complaint further alleges that CyberSpy provided instructions to purchasers regarding how to disguise the software as an innocuous file, and obtain installation on victims' computer without their knowledge.

This spyware software sent information from victims' computers to CyberSpy servers, which organized the data, and made it available online to its purchasers via a password protected web site.

The complaint further states that this spyware software, once installed on victims' computers, it not listed in Add/Remove Programs utilities, or in applications or processes tabs, thereby making it difficult for computer users to discover its presence, or to remove it.

The types of information stolen by this spyware software included passwords typed, web sites visited, transcripts of things typed (including e-mail and word processing), and screenshots (including received e-mail and bank statements).

The complaint does not allege that the defendants used information stolen from the victims to commit identity theft or other crimes or violations of law. The complaint does not name as defendants any persons who purchased from CyberSpy.

The complaint contains four counts, all of which allege violation of Section 5(a). The first count alleges unfair sale of spyware. The second count alleges unfair collection and disclosure of consumers' personal information. The third count alleges that the defendants provided the means and instrumentalities for the commission of unfair acts and practices. The fourth count alleges that the defendants provided the means and instrumentalities to engage in deception.

The complaint seeks injunctive relief and disgorgement of ill gotten gains.

The District Court's temporary restraining order (TRO) finds that "sale and operation of RemoteSpy is likely to cause substantial harm to consumers that cannot be reasonably avoided and is not outweighed by countervailing benefits to consumers or to competition. The likely harm includes financial harm (including identity theft) and endangering the health and safety of consumers."

The TRO enjoins the defendants from selling, promoting or distributing the software. It also enjoins them from collecting any information from victims' computers. It also enjoins them from providing others with the means and instrumentalities to install the software.

The FTC also issued a release that credits the Electronic Privacy Information Center (EPIC) with bringing this matter to the attention of the FTC. See, March 6, 2008, EPIC complaint [24 pages in PDF].

This case is FTC v. CyberSpy Software LLC and Tracer R. Spence, U.S. District Court for the Middle District of Florida, Orlando Division, D.C. No. 6:08-cv-1872-ORL-GAP-GJK.

11/17. The Securities and Exchange Commission (SEC) filed a civil complaint [9 pages in PDF] in U.S. District Court (NDTex) against Mark Cuban alleging securities fraud. See also, SEC release and release.

Cuban responded in his web site that "The government's claims are false and they will be proven to be so."

Neither the complaint nor the SEC's releases explain why the SEC filed a complaint nearly four and one half years after the transactions that serve as the basis of the complaint.

Linda Thomsen, Director of the SEC's Enforcement Division (ED), stated in a release that "Insider trading cases are a high priority for the Commission. This case demonstrates yet again that the Commission will aggressively pursue illegal insider trading whenever it occurs".

Thomsen (at left) faces allegations that she disclosed confidential SEC information about Bear Stearns to JP Chase Morgan at a time when it was considering acquiring Bear Stearns. Neither the SEC nor Department of Justice (DOJ) have brought either civil or criminal charges against Thomsen. See, more below.

Summary of Complaint Against Cuban. The complaint alleges that Cuban's sale of his 600,000 shares of Mamma.com Inc. in 2004 constituted illegal insider trading.

The complaint states that Cuban owned a 6.3% stake in the company. It states that the CEO contacted Cuban and told him that the company would raise additional capital through a private investment in public equity (PIPE), which would dilute the interest of existing shareholders, including Cuban.

The complaint states that Cuban was upset, and promptly told his broker to sell his stake, which he did on June 28 and 29, 2004. It further states that late on June 29, 2004, Mamma.com publicly announced the PIPE offering. Finally, it states that the share price of Mamma.com stock then dropped 39% by July 8. The complaint does not state when Cuban's sell off became public knowledge.

The complaint alleges that Cuban avoided loses in excess of $750,000 by selling his Mamma.com stock before the public announcement of the PIPE offering.

This allegation in the complaint is based on the hypothesis that the price decline was caused solely by the public announcement of the PIPE offering. One alternative hypotheses would be that the the price decline was caused by the sale of over 6% of the total outstanding shares of the company. Another hypothesis would be that public information that Cuban had lost confidence in the company caused others to sell, which caused the price drop.

The complaint alleges that "Cuban sold his Mamma.com securities on the basis of material, non-public information he received from the CEO, and, subsequently, from" the investment bank that served as the sales representative for the PIPE offering.

The complaint continues that "Cuban knew or was reckless in not knowing that he had received material, non-public information from Mamma.com and that he breached a duty of trust or confidence that he owed to Mamma.com when he sold on the basis of that information."

The complaint contains two civil counts. First, It alleges violation of Section 10b of the Securities Exchange Act of 1934, which is codified at 15 U.S.C. § 78j(b), and Rule 10b5 thereunder. Second, it alleges violation of Section 17 of the Securities Act of 1933, which is codified at 15 U.S.C. § 77q(a).

Section 10b provides, in part, that "It shall be unlawful for any person, directly or indirectly, by the use of any means or instrumentality of interstate commerce or of the mails, or of any facility of any national securities exchange ... To use or employ, in connection with the purchase or sale of any security ... any manipulative or deceptive device ..." It also authorized the SEC to write regulations "that prohibit fraud, manipulation, or insider trading".

This case is Securities and Exchange Commission v. Mark Cuban, U.S. District Court for the Northern District of Texas, Dallas Division, D.C. No. 3-08CV2050-D.

Mark Cuban. Cuban is an entrepreneur who has started or invested in numerous other information technology, sports, and entertainment enterprises. He is also frequently comments publicly on technology, and other, issues.

The complaint states that Cuban is also the owner of HDNet, a high definition television network. The HDNet web site lists him as a co-founder.

He also owns a basketball team, the Dallas Mavericks.

In 1995 he co-founded the company that became Broadcast.com. Yahoo bought it for $5.9 Billion in Yahoo stock in 1999.

Cuban's web site, titled "blog maverick: the mark cuban weblog", states that "This matter, which has been pending before the Commission for nearly two years, has no merit and is a product of gross abuse of prosecutorial discretion. Mr. Cuban intends to contest the allegations and to demonstrate that the Commission's claims are infected by the misconduct of the staff of its Enforcement Division."

The SEC has only administrative and civil enforcement authority. The DOJ, but not the SEC, has authority to criminally prosecution violation of securities laws.

Neither the DOJ's Washington DC office, nor the Office of the U.S. Attorney for the Northern District of Texas, announced on November 17 or 18, 2008, the initiation of a criminal proceeding against Cuban.

Allegations of Misconduct by Thomsen and the Enforcement Division. Cuban is not the only person alleging "misconduct of the staff of its Enforcement Division".

Sen. Charles Grassley (R-IA), the ranking Republican on the Senate Finance Committee, has disclosed some information about other allegations of misconduct in the SEC ED.

He released a copy of an anonymous October 7, 2008, letter [PDF] to David Kotz, Inspector General of the SEC, that alleges that Thomsen gave the General Counsel of JP Chase Morgan information "about the state of various SEC investigations into" Bear Stearns.

The IG web site requests reporting of "suspected fraud, waste or abuse in SEC programs or operations, and SEC staff or contractor misconduct". It further states that "you may request to remain anonymous. Visitors to this website are not tracked."

Sen. Grassley (at right) sent a letter [3 pages in PDF] on October 21 to SEC Chairman Chris Cox regarding the October 7 allegation, as well as an earlier allegation about improper disclosure of SEC information to outside parties.

He wrote that the conduct alleged in the October 7 complaint "would reinforce the appearance that Enforcement decisions, and disclosures of information about them, are sometimes based not on the merits, but rather on access to senior officials by influential representatives of power brokers on Wall Street. In light of these allegations and the ongoing financial crisis, there has never been a more critical time to take swift action to restore confidence in the SEC Enforcement Division."

SEC IG Kotz issued a report, which is not in the SEC IG web site. Then, according to Sen. Grassley, on November 7, an SEC administrative law judge issued a decision "to effectively disregard recommendations" of the SEC IG.

Sen. Grassley's stated in a release on November 7, 2008, that "It looks like the lawyers for the wrongdoers wrote the decisions. It's hard to believe that after everything that's happened over the last two years, the Securities and Exchange Commission is refusing to hold anyone accountable for the misconduct exposed by two independent inquiries."

11/18. The Department of the Treasury (DOT) and the Federal Reserve Board (FRB) jointly published a notice in the Federal Register that announces, describes, recites, and sets the effective dates for, their rules implementing the Unlawful Internet Gambling Enforcement Act of 2006 (UIGEA). See, text of UIGEA.

These rules take effect on January 19, 2009. However, compliance by non-exempt participants in designated payment systems is not required until December 1, 2009. See, Federal Register, November 18, 2008, Vol. 73, No. 223, at Pages 69381-69411.

The UIGEA was passed as Title VIII of HR 4954 (109th Congress), the "Port Security Improvement Act of 2006". It is now Public Law No. 109-347.  See, story titled "House and Senate Approve Port Security Bill With Tech Provisions" in TLJ Daily E-Mail Alert No. 1,461, October 4, 2006.

See also, story titled "House Approves Unlawful Internet Gambling Enforcement Act" in TLJ Daily E-Mail Alert No. 1,408, July 11, 2006, and story titled "House Financial Services Committee Approves Internet Gambling Bill" in TLJ Daily E-Mail Alert No. 1,330, March 16, 2006.

The UIGEA is an attempt to stop internet gambling by regulating the financial transactions that fund what already constitutes unlawful internet gambling. It provides that no one engaged in the "business of betting or wagering" may knowingly accept certain financial transactions, including checks, electronic fund transfers, and credit card debt, in connection with "unlawful Internet gambling".

The UIGEA then requires the DOT and FRB to write regulations that require each "designated payment system" to identify and block these restricted transactions through the establishment of policies and procedures. It requires each "financial transaction provider" to comply with these DOT/FRB regulations.

The just published notice states that "The final rule sets out definitions for terms used in the regulation; designates payment systems that could be used by participants in connection with, or to facilitate, a restricted transaction; exempts certain participants in certain designated payment systems from the requirement of the regulation; requires the participants performing non-exempt functions in a designated payment system to establish and implement policies and procedures reasonably designed to prevent or prohibit restricted transactions, such as by identifying and blocking such transactions; provides non-exclusive examples of policies and procedures for non-exempt participants in each designated payment system; and sets out the regulatory enforcement framework."

The bill provides that "designated payment system" means "any system utilized by a financial transaction provider that the Secretary and the Board of Governors of the Federal Reserve System, in consultation with the Attorney General, jointly determine, by regulation or order, could be utilized in connection with, or to facilitate, any restricted transaction."

The rules do not provide a definition, but rather list what "systems could be used by participants in connection with, or to facilitate, a restricted transaction". They are as follows:
"(a) Automated clearing house systems;
(b) Card systems;
(c) Check collection systems;
(d) Money transmitting businesses solely to the extent they
  (1) Engage in the transmission of funds, which does not include check cashing, currency exchange, or the issuance or redemption of money orders, travelers' checks, and other similar instruments; and
  (2) Permit customers to initiate transmission of funds transactions remotely from a location other than a physical office of the money transmitting business; and
(e) Wire transfer systems."

11/17. The Supreme Court denied certiorari in Jane Doe v. MySpace, an action against a social networking site involving application of Section 230 immunity. See, Order List [9 pages in PDF] at page 3.

This lets stand the May 16, 2008, opinion [13 pages in PDF] of the U.S. Court of Appeals (5thCir). To the extent that the District Court dismissed an action, pursuant to Section 230, in which the plaintiff alleged that MySpace is liable for the acts of people who communicated through MySpace, and the Court of Appeals affirmed, the denial of certiorari preserves the benefits that flow to the providers and users of online services from Section 230.

However, there remain two clouds over Section 230 immunity, and the internet. First, after numerous court opinions over a decade that accorded Section 230 its plain and intended meaning, the 9th Circuit began the process of creating exceptions that could swallow the immunity rule, in the Roommates.com case. Second, the 5th Circuit noted that it did not resolve the arguments that search functions or content creation deprive interactive computer services of their immunity.

Jane Doe, a pseudonym, filed a complaint in a state trial court against MySpace and News Corporation alleging that they are liable for a tort committed by a third party against Doe's minor daughter. The two met through MySpace's social networking site.

The complaint alleged fraud, negligent misrepresentation, negligence, and gross negligence.

After removal to federal court, and a change of venue, the case landed in the U.S. District Court (WDTex).

MySpace then moved to dismiss based upon the immunity provision of 47 U.S.C. § 230, and Texas common law.

47 U.S.C. § 230 provides certain immunity for an "interactive computer service". The key subsection, §230(c)(1), provides that "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider".

Subsection 230(d)(3) provides that "Nothing in this section shall be construed to prevent any State from enforcing any State law that is consistent with this section. No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section."

The District Court granted the motion to dismiss the claims for negligence and gross negligence. Doe withdrew her other claims. Doe then appealed to the U.S. Court of Appeals (5thCir), which affirmed the judgment of the District Court.

The Court of Appeals rejected the argument that MySpace's search function makes it an "information content provider". However, the Court of Appeals ruled that Doe was barred from making these arguments only because she did not raise them until the appeal. Hence, this issue remains unresolved by the 5th Circuit.

The Court of Appeals also did not consider Doe's content creation argument.

In contrast, the U.S. Court of Appeals (9thCir) has addressed these issues in greater detail in FHCSFV v. Roommates.com. On April 3, 2008, an en banc panel of the 9th Circuit issued its 8-3 opinion [54 pages in PDF] holding, like the three judge panel, that an interactive computer service, such as Roommates.com, can be held liable for the speech of users, despite language to the contrary in Section 230. Moreover, the majority held that the web site's search and e-mail notification functions have no immunity. See, story titled "En Banc 9th Circuit Panel Rejects Section 230 Immunity in Roommates.com Case" in TLJ Daily E-Mail Alert No. 1,741, April 2, 2008.

The present case is Jane Doe v. Myspace, Inc. et al., Supreme Court of the U.S., a petition for writ of certiorari to the U.S. Court of Appeals for the 5th Circuit, App. Ct. No. 07-50345. The Court of Appeals heard an appeal from the U.S. District Court for the Western District of Texas.

Judge Edith Clement wrote opinion of the Court of Appeals, in which Judges Garwood and Elrod joined.

11/17. The Supreme Court issued an order in Pacific Bell Telephone v. Linkline Communications, a telecommunications antitrust case. The Supreme Court wrote that "The motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument is granted. The motion of American Antitrust Institute for leave to participate in oral argument as amicus curiae and for divided argument is granted and the time is to be divided as follows: 15 minutes for respondents, and 15 minutes for amicus curiae American Antitrust Institute." See, Order List [9 pages in PDF] at pages 1-2. See also, story titled "Supreme Court Grants Certiorari in Pacific Bell v. Linkline" in TLJ Daily E-Mail Alert No. 1,786, June 25, 2008. This case is Pacific Bell Telephone Company, et al. v. Linkline Communications, Inc., et al., Supreme Court of the U.S., Sup. Ct. No. 07-512, a petition for writ of certiorari to the U.S. Court of Appeals for the 9th Circuit. See also, Supreme Court docket. Oral argument is scheduled for December 8, 2008.

11/17. The Supreme Court issued an order in AT&T v. Noreen Hulteen, a case regarding Title VII, calculation of retirement benefits, and pregnancy leave. The Supreme Court wrote that "The motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument is granted." See, Order List [9 pages in PDF] at page 2. This is Sup. Ct. No. 07-543. See, Supreme Court docket. Oral argument is scheduled for December 10, 2008.

This issue contains the following items:
 • FTC Sues Seller of Spyware Software and Services
 • SEC Charges Mark Cuban with Insider Trading
 • Treasury & FRB Publish Internet Gambling Rules
 • Supreme Court Denies Cert in Doe v. MySpace

11/17. Yahoo announced in a release that Jerry Yang will step down as CEO, but will remain with the company, and that the "Board of Directors has initiated a search for a new Chief Executive Officer".

11/18. Secretary of Commerce Carlos Gutierrez named three persons to be members of the Patent Public Advisory Committee (PPAC) and three persons to be members of the Trademark Public Advisory Committee (TPAC). The new PPAC members are Marc Adler (intellectual property strategy consultant), Stephen Pinkos (PCT Government Relations, a former Deputy Under Secretary and Deputy Director of USPTO, and a former House Judiciary Committee staff member), and Maureen Toohey (Toohey Law Group). The new TPAC members are Makan Delrahim (Brownstein Hyatt, and former staff assistant to Sen. Orrin Hatch (R-UT)), Mary Denison (Manelli Denison & Selter), and Timothy Lockhart (Willcox & Savage). See, USPTO release and USPTO web site for the PPAC and TPAC.

The House will meet at 1:00 PM for legislative business. The House may consider bailout legislation. See, Rep. Hoyer's schedule for week of November 17.

The Senate will meet at 9:30 AM. It will resume consideration of the motion to proceed to S 3297 [ LOC | WW], the "Advancing America's Priorities Act".

8:00 AM - 5:30 PM. Day three of a five day closed meeting of the National Institute of Standards and Technology's (NIST) Judges Panel of the Malcolm Baldrige National Quality Award. The panel will conduct final judging of the 2008 applicants. See, notice in the Federal Register: October 28, 2008, Vol. 73, No. 209, at Page 63946. Location: NIST, Administration Building, Lecture Room E, Gaithersburg, MD.

9:30 AM. The Senate Banking Committee (SBC) will hold a hearing on the nomination of Neil Barofsky to be Special Inspector General of the Troubled Asset Relief Program (TARP). See, notice. Location: Room 538, Dirksen Building.

9:30 AM - 3:00 PM. Day three of a three day meeting of the Architectural and Transportation Barriers Compliance Board. The 10:30 AM session is closed to the public. Its agenda includes "Reports and discussion on ... information and communications technologies". See, notice in the Federal Register, October 30, 2008, Vol. 73, No. 211, at Pages 64595-64596. Location: The Westin Arlington Gateway Hotel, 801 North Glebe Road, Arlington, VA.

10:00 AM. The House Financial Services Committee (HFSC) will hold a hearing pertaining to bail out of auto industry entities. See, notice. Location: Room 2128, Rayburn Building.

10:00 AM. The Securities and Exchange Commission (SEC) will hold a meeting. The agenda includes consideration of amendments of the SEC's rules regarding internet based disclosure of mutual fund information. See, notice. Location: SEC, Auditorium (Room L-002), 100 F St., NE.

12:00 NOON - 1:30 PM. The House Intelligence Committee (HIC) will hold a closed meeting.

12:00 NOON - 2:00 PM. The DC Bar Association will host a program titled "Legal Developments in the Telecom, Media and Technology Sectors". The speakers will be Susan Fox (Disney), Marc Martin (K&L Gates), Joseph Bogdan (World Wrestling Entertainment), and Ross Vincenti (Sprint Nextel). The price to attend ranges from $10 to $35. For more information, contact 202-626-3463. See, notice. Location: DC Bar Conference Center, B-1 Level, 1250 H St., NW.

The House may meet at 10:00 AM for legislative business. It may consider bailout legislation. See, Rep. Hoyer's schedule for week of November 17.

8:30 - 10:00 AM. The Information Technology and Innovation Foundation (ITIF) will host an event titled "ITIF Breakfast Forum: The Netherlands’ National Pay-per-Use Road-Pricing Initiative". The speaker will be Al Joris (General Director of The Netherlands’ Centre for Transport and Navigation in the Ministry of Transport). This system will employ satellite tracking technology and on board mileage data systems. See, notice. Location: ITIF, Suite 200, 1250 Eye St., NW.

8:30 AM - 5:30 PM. The National Science Foundation's (NSF) Advisory Committee for Social, Behavioral, and Economic Sciences will meet. The agenda includes "CyberInfrastructure, Cyber-enabled Discovery and Innovation". See, notice in the Federal Register, November 3, 2008, Vol. 73, No. 213, at Page 65414. Location: NSF, 4201 Wilson Boulevard, Stafford I, Third Floor, Room 375, Arlington, VA.

9:00 AM - 1:00 PM. The Department of Homeland Security's (DHS) U.S. Customs and Border Protection's (CBP) Advisory Committee on Commercial Operations of Customs and Border Protection and Related Homeland Security Functions  will meet. The agenda includes "Intellectual Property Rights Enforcement". See, notice in the Federal Register, November 5, 2008, Vol. 73, No. 215, at Page 65871. Location: Rotunda Ballroom, Ronald Reagan Building, 1300 Pennsylvania Ave., NW.

9:00 AM - 5:30 PM. Day four of a five day closed meeting of the National Institute of Standards and Technology's (NIST) Judges Panel of the Malcolm Baldrige National Quality Award. The panel will conduct final judging of the 2008 applicants. See, notice in the Federal Register: October 28, 2008, Vol. 73, No. 209, at Page 63946. Location: NIST, Administration Building, Lecture Room E, Gaithersburg, MD.

10:00 AM. The U.S. District Court (DC) will hold a sentencing hearing in US v. E-Gold, D.C. No. 07-cr-0109, a criminal prosecution of a business that enabled people to engage in anonymous online financial transactions. See, story titled "DOJ Obtains Guilty Pleas in E-Gold Case" in TLJ Daily E-Mail Alert No. 1,797, July 22, 2008. Location: Courtroom 2.

10:30 AM. The U.S. District Court (DC) will hold a telephone conference in Juniper Networks v. Bahattab, D.C. No. 07-cv-1771, a patent case.

12:15 - 1:30 PM. The Federal Communications Bar Association's (FCBA) Wireless Committee will host a lunch titled "Wireless Facilities Siting". The speakers will be Brian Fontes (National Emergency Number Association), Christopher Guttman-McCabe (CTIA), Bill Hackett (T-Mobile), and Jeffrey Steinberg (Deputy Chief of the FCC's Wireless Telecommunications Bureau's (WTB) Spectrum and Competition Policy Division. See, notice and registration page. The price to attend is $15. Location: Sidley Austin, 1501 K St., NW.

1:00 - 2:30 PM. The House Intelligence Committee (HIC) will hold a closed hearing. Location: Room H-405, Capitol Building.

1:00 PM. The Department of Health and Human Services' (DHHS) American Health Information Community's (AHIC) Confidentiality, Privacy, & Security Workgroup may meet. AHIC meetings are often noticed, but cancelled. Location: Switzer Building, 330 C St., SW.

1:30 PM. The U.S. District Court (DC) will hold a telephone conference in Covad Communications v. Revonet, D.C. No. 06-cv-1892.

5:30 - 7:30 PM. The DC Bar Association will host a closed event titled "Espionage and Family Law: The Use and Abuse of Electronic Surveillance". The speakers will be Eric Wenger (Department of Justice, Criminal Division), Guilherme Roschke (American Bar Association), and Sharon Nelson (Sensei). The price to attend ranges from $20 to $55. For more information, contact 202-626-3463. See, notice. Location: DC Bar Conference Center, B-1 Level, 1250 H St., NW.

Day one of a two day conference titled "9th Security 2008 Conference and Exhibition". At 2:00 PM there will be a panel titled "Effective Security Architectures and Protecting Personally Identifiable Information". The speakers will include Hugo Teufel (Chief Privacy Officer of the Department of Homeland Security), Ken Mortensen (Department of Justice) and Ron Ross (NIST). See, agenda. Location: Ronald Reagan Building , 1300 Pennsylvania Ave., NW.

The House may meet at 9:00 AM for legislative business. It may consider bailout legislation. See, Rep. Hoyer's schedule for week of November 17.

8:00 AM - 5:30 PM. Day five of a five day closed meeting of the National Institute of Standards and Technology's (NIST) Judges Panel of the Malcolm Baldrige National Quality Award. The panel will conduct final judging of the 2008 applicants. See, notice in the Federal Register: October 28, 2008, Vol. 73, No. 209, at Page 63946. Location: NIST, Administration Building, Lecture Room E, Gaithersburg, MD.

8:30 - 11:45 PM. Day two of a two day meeting of the National Science Foundation's (NSF) Advisory Committee for Social, Behavioral, and Economic Sciences. See, notice in the Federal Register, November 3, 2008, Vol. 73, No. 213, at Page 65414. Location: NSF, 4201 Wilson Boulevard, Stafford I, Third Floor, Room 375, Arlington, VA.

9:00 - 11:00 AM. The Information Technology and Innovation Foundation (ITIF) will host a debate titled "Are Broadband Markets Competitive Enough?" The speakers will be Jeff Eisenach (Chairman of Empiris), Ev Ehrlich (President of ESC Company), and John Windhausen (President of Telepoly). Eisenach and Ehrlich will argue that the broadband market is competitive, and will present two new papers titled "The Reality of Competition in the Broadband Market" and "U.S. Broadband Policies: A Market-Oriented Success Story." Windhausen will argue that the broadband market is not fully competitive. Robert Atkinson (head of the ITIF) will moderate. See, notice and registration page. Location: ITIF, Suite 200, 1250 Eye St., NW.

2:15 PM. The U.S. District Court (DC) will hold a sentencing hearing in US v. E-Gold, D.C. No. 07-cr-0109, a criminal prosecution of a business that enabled people to engage in anonymous online financial transactions. See, story titled "DOJ Obtains Guilty Pleas in E-Gold Case" in TLJ Daily E-Mail Alert No. 1,797, July 22, 2008. Location: Courtroom 2.

Day two of a two day conference titled "9th Security 2008 Conference and Exhibition". See, agenda. Location: Ronald Reagan Building , 1300 Pennsylvania Ave., NW.

12:15 - 1:30 PM. The Federal Communications Bar Association's (FCBA) Intellectual Property Practice Committee will host a brown bag lunch titled "The Copyright Royalty Board: Recent Decisions". The speakers will be Bruce Joseph (Wiley Rein), David Oxenford (Davis Wright Tremaine), Robert Garrett (Arnold & Porter), and Tom Perrelli (Jenner & Block). Location: Dow Lohnes, 1200 New Hampshire Ave., NW.

Extended deadline to submit comments to the Copyright Office (CO) in response to its request for comments regarding its proposal to raise fees for registration of claims, special services and Licensing Division services. See, original notice in the Federal Register, October 14, 2008, Vol. 73, No. 199, at Pages 60658-60662, and notice of extension in the Federal Register, October 31, 2008, Vol. 73, No. 212, at Pages 64905-64906. See also, story titled "Copyright Office Proposes to Raise Registration Fees" in TLJ Daily E-Mail Alert No. 1,843, October 15, 2008.

10:30 AM. The Heritage Foundation will host an event titled "Taiwan, Democracy, and the Rule of Law". The speakers will be Ching Jyh Shieh (Former Deputy Minister of the National Science Council, Republic of China) and Stephen Yates (Heritage). Location: Heritage, 214 Massachusetts Ave., NE.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to the FNPRM portion of its November 5, 2008, Order on Remand regarding universal service, IP enabled services, intercarrier compensation, and other topics. See, notice in the Federal Register, November 12, 2008, Vol. 73, No. 219, at Pages 66821-66830. The FCC adopted and released this Order on Remand and Report and Order and Further Notice of Proposed Rulemaking [430 pages in PDF] on November 5. FCC Chairman Kevin Martin offered this explanation in his statement associated with this item: "Today we tell the U.S. Court of Appeals for the D.C. Circuit and the Federal-State Joint Board on Universal Service that, after years of deliberation, we are still unready to move forward with comprehensive reform of intercarrier compensation and universal service. Instead, we issue another open-ended Further Notice of Proposed Rulemaking on a variety of approaches for comprehensive reform, and my colleagues promise to act on it by December 18." This item is FCC 08-262 in WC Docket No. 05-337, CC Docket No. 96-45, and WC Docket No. 03-109, WC Docket No. 06-122, and CC Docket No. 99-200, CC Docket No. 96-98, and CC Docket No. 01-92, CC Docket No. 99-68, and WC Docket No. 04-36.

11/17. The U.S. Court of Appeals (10thCir) issued its opinion [25 pages in PDF] in T-Mobile v. Wyandotte County, a cell tower siting case. The local zoning authority, Wyandotte County, refused T-Mobile's request for permission to build a 120 foot high tower. The District Court ordered Wyandotte County to approve the application. The Court of Appeals affirmed. It held that the local authority's decision was not supported by substantial evidence, as required by 47 U.S.C. § 332(c)(7)(B)(iii). This case is T-Mobile Central LLC v. Unified Government of Wyandotte County, U.S. Court of Appeals for the 10th Circuit, App. Ct. No. 07-3332, an appeal from the U.S. District Court for the District of Kansas, D.C. No. 06-CV-02313-DJW.

11/17. Secretary of Commerce Carlos Gutierrez stated in a release that "We are very pleased with the high level of consumer participation in the TV Converter Box Coupon Program, but there are still many who need to take action in order to be prepared for the transition."

11/17. The U.S. Patent and Trademark Office (USPTO) published a notice in the Federal Register that announces, describes, recites, and sets the effective date (January 16, 2009) for, numerous changes to its Trademark Rules of Practice. These changes pertain to applications, intent to use documents, amendments to classification, requests to divide, and Post Registration practice. See, Federal Register, November 17, 2008, Vol. 73, No. 222, at Pages 67759-67776.

11/17. The U.S. Patent and Trademark Office (USPTO) published a notice in the Federal Register that announces, describes, recites, and sets the effective date (December 17, 2008) for, its new rules governing the conduct of individuals registered to practice before the USPTO. These new rules include an annual patent practitioner maintenance fee. See, Federal Register, November 17, 2008, Vol. 73, No. 222, at Pages 67750-67759.

11/17. The Department of State (DOS) published a notice in the Federal Register that announces, and requests public comments regarding how to create, its program named English Access Online. This notice states that the DOS plans to "create an online English language learning and literacy series for economically disadvantaged youth outside the United States". The DOS "seeks to gather input as to the best technical platforms and delivery mechanisms for this learning series", but not input as to content. The DOS notice also states that this program will be run by the DOS's Bureau of Educational and Cultural Affairs, and that it will be made available for free. The deadline to submit comments is December 17, 2008. See, Federal Register, November 17, 2008, Vol. 73, No. 222, at Pages 67920-67921.

11/14. The Department of Homeland Security (DHS) published a notice in the Federal Register that requests comments regarding revising the National Infrastructure Protection Plan (NIPP). The DHS seeks comments on, among other things, "Publishing the Sector Specific Plans (SSPs)". There are SSPs titled Communications [132 pages and 3MB in PDF] and Information Technology [11 MB in PDF]. Comments are due by December 1, 2008. See, Federal Register, November 14, 2008, Vol. 73, No. 221, at Pages 67532-67534.

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