1/12. John Podesta, Co-Chair of the Obama-Biden Transition Team, sent a letter [PDF] on January 8, 2009,  to to Sen. Jay Rockefeller (D-WV), Sen. Kay Hutchison (R-TX), Rep. Henry Waxman (D-CA), and Rep. Joe Barton (R-TX), the Chairmen and ranking Republicans on the Senate Commerce Committee (SCC) and House Commerce Committee (HCC), regarding the February 17, 2009, date for transitioning to digital television.

Podesta wrote that "the February 17 cut off date for analog signals should be reconsidered and extended". He cited problems with the coupons that subsidize consumers' purchase of converter boxes.

The February 17 date is codified by statute, and would require legislation to change.

Gary Shapiro, head of the Consumer Electronics Association (CEA) sent a letter to Podesta on January 12 stating that the "CEA is sympathetic to concerns about disenfranchising consumers, especially the most vulnerable Americans, but extending the transition date has ramifications which should be considered. First, over 95 percent of Americans are already prepared for the transition and millions have taken action because their government told them to do so. These Americans subscribe to a multichannel video provider like cable or satellite, they have purchased a digital television (more that 63 percent of U.S. households have a digital television today), or they have purchased a converter box. A change in the date could engender skepticism, confusion and distrust the next time government asks them to undertake specific actions in anticipation of a major event."

Shapiro also argued that "changing the date in and of itself will simply confuse Americans while doing little to promote a successful transition to digital television." He also argued that "a delay will require significant unbudgeted expenditures from the public and private sectors. Resources would have to be found for a new national public education campaign."

He further argued that "a delay will not solve any perceived problems with box availability. Retailers have ordered and manufacturers have produced most of the converter boxes they planned for based on a February 17 transition date."

Finally, he argued that "the public interest is served by the return of analog spectrum to be used by carriers that have already invested nearly $20 billion in spectrum auctions and have promised deployment of innovative new next-generation wireless broadband services."

The CTIA's Joe Farren stated in a release that "We are concerned that a delay of the transition date could postpone investment in and deployment of broadband wireless services and decrease confidence in the auction model for spectrum allocation that has generated billions for the U.S. Treasury. In the midst of the current economic struggle, these are important considerations."

He added that "Educating Americans on the upcoming transition and making affordable digital converter boxes available has and continues to be an integral part of the transition process. Additionally, the answer to the potential shortfall in the DTV converter box program is not a delay in the transition, but rather immediate action by Congress to provide for additional converter boxes."

David Rehr, head of the National Association of Broadcasters (NAB), stated in a release that "Today's announcement from President Obama's transition team reaffirms the importance of free and local broadcasting in the fabric of American life" and that the "NAB looks forward to a continuing dialogue with the new White House and new Congress to ensure a successful DTV transition".

1/7. The state of New York and Arbitron entered into a Stipulated Order on Consent [12 pages in PDF] that settles New York's action against Arbitron, the media rating service, regarding its Portable People Meter (PPM).

The Office of the Attorney General for the state of New York announced in a release that this agreement requires Arbitron "to overhaul its system for determining radio ratings in New York in response to allegations that minority listeners are undercounted."

The New York AG's office added that this "resolves a lawsuit filed by the Attorney General in the New York Supreme Court in October 2008 against Arbitron for failing to disclose important flaws in the PPM methodology that inadequately represented African-American and Hispanic listening habits and deceptively claiming that its Portable People Meter (``PPM´´) system is valid, fair, and representative of diverse radio markets. The consent order filed with the Supreme Court outlines the ways in which Arbitron must take immediate action to improve PPM."

Stephen Morris, Arbitron's Chairman, stated in a release that under this agreement "Broadcasters, agencies and advertisers in New York can continue to use PPM measurement of radio without any hesitation or reservation. We are also pleased to be able to resolve this action within the framework of our continuous improvement program for the Portable People Meter ratings service in the New York radio market. These initiatives are sure to increase the accountability of radio to the benefit of all New York radio broadcasters and their advertisers."

Arbitron also reached an agreement with the state of New Jersey that settles a related action filed by New Jersey regarding the PPM. See, Arbitron release.

On September 4, 2008, the Federal Communications Commission's (FCC) Media Bureau released a public notice [3 pages in PDF] that announced and requested public comments on the PPM Coalition's (PPMC) September 2, 2008, Emergency Petition for Section 403 Inquiry [51 pages in PDF].

The PPMC members include the National Association of Black Owned Broadcasters, Spanish Radio Association and other entities. The petition asked the FCC to open an inquiry into Arbitron's use of Portable People Meters (PPM). This FCC proceeding is MB Docket No. 08-187.

1/12. On November 24, 2008, the Federal Trade Commission (FTC) filed a petition for writ of certiorari with the Supreme Court in FTC v. Rambus. This is an antitrust case regarding Rambus's participation in the Joint Electron Device Engineering Council (JEDEC) standards setting process for dynamic random access memory (DRAM) industry standards, without disclosing its patent interests, and then asserting those patents.

The FTC concluded in an administrative proceeding in 2006 that Rambus violated antitrust law. The U.S. Court of Appeals (DCCir) set aside the FTC order in April of 2008. The FTC petitioned for writ of certiorari. The Supreme Court has not yet decided whether or not to grant certiorari. It has, however, received several amicus curiae briefs urging it to grant certiorari.

In 2006, the FTC concluded that "Rambus's acts of deception constituted exclusionary conduct under Section 2 of the Sherman Act, and that Rambus unlawfully monopolized the markets for four technologies incorporated into the JEDEC standards in violation of Section 5 of the FTC Act."

See, FTC's August 2, 2006, opinion [120 pages in PDF] in its administrative proceeding titled "In the Matter of Rambus, Inc.". See also, FTC Docket No. 9302 for hyperlinks to pleadings in this proceeding. And see, story titled "FTC Holds That Rambus Unlawfully Monopolized Markets" in TLJ Daily E-Mail Alert No. 1,427, August 8, 2006

On April 22, 2008, the U.S. Court of Appeals (DCCir) issued its opinion [24 pages in PDF] setting aside the FTC's order concluding that Rambus violated Section 2 of the Sherman Act and Section 5 of the FTC Act.

The Court of Appeals first summarized the order of the FTC. It wrote that Rambus asserted that patents issued to protect its invention cover four technologies that a private standard setting organization (SSO) included in dynamic random access memory (DRAM) industry standards. The FTC determined that Rambus, while participating in this process, "deceptively failed to disclose to the SSO the patent interests it held in four technologies that were standardized." The FTC found this conduct monopolistic, in violation of Section 2 of the Sherman Act, and also in violation of Section 5 of the FTC Act.

The Court of Appeals held that the FTC "failed to sustain its allegation of monopolization. Its factual conclusion was that Rambus's alleged deception enabled it either to acquire a monopoly through the standardization of its patented technologies rather than possible alternatives, or to avoid limits on its patent licensing fees that the SSO would have imposed as part of its normal process of standardizing patented technologies. But the latter -- deceit merely enabling a monopolist to charge higher prices than it otherwise could have charged -- would not in itself constitute monopolization." (Italics in original.)

See, story titled "Court of Appeals Rules in Rambus v. FTC" in TLJ Daily E-Mail Alert No. 1,752, April 23, 2008.

The FTC petition for writ of certiorari states that the questions presented are "Whether deceptive conduct that significantly contributes to a defendant’s acquisition of monopoly power violates Section 2 of the Sherman Act" and "Whether deceptive conduct that distorts the competitive process in a market, with the effect of avoiding the imposition of pricing constraints that would otherwise exist because of that process, is anticompetitive under Section 2 of the Sherman Act".

The FTC argued that "The court of appeals' doubly erroneous approach to the issue of causation and competitive effects in Section 2 monopolization cases greatly undermines the ability of antitrust enforcement agencies to prevent exclusionary practices that engender monopolies and harm consumers."

First, the FTC argued that "the court of appeals failed to recognize that the Commission had fully satisfied the elements of Section 2 by showing that Rambus had acquired monopoly power by exclusionary conduct -- that is, conduct other than competition on the merits -- and that such conduct had made a significant contribution to the creation of that power. No more stringent showing of causation is necessary to establish a Section 2 violation."

Second, the FTC argued that "the court of appeals erred in faulting the Commission for failing to show that Rambus's deception had anticompetitive effects simply because of uncertainty about which of two possible consequences -- namely, that JEDEC would have adopted an alternative technology or it would have required a RAND commitment -- would have occurred but for that misconduct. In a case like this, the burden of any uncertainty regarding the ``but for marketplace´´ falls on the defendant, not the Government. Further, the court of appeals ignored the Commission’s detailed showing that Rambus's misconduct had seriously disrupted the competitive process in which technologies compete for inclusion in industry standards."

Ii added that "This case is an appropriate vehicle for the Court to provide much-needed guidance on the appropriate standard of causation and the scope of actionable competitive harm in a Section 2 monopolization case"

Section 2 of the Sherman Act, which is codified at 15 U.S.C. § 2, provides in part that "Every person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States, or with foreign nations, shall be deemed guilty of a felony ..."

On December 29, 2008, the Computer and Communications Industry Association (CCIA) filed an amicus curiae brief urging the Supreme Court to grant certiorari and reverse of the judgment of the Court of Appeals.

The CCIA wrote that "consensus-based industry standard-setting is crucial to the information technology industry. Successful standards promote interoperability among complex IT products. Interoperability reduces transaction costs and market prices by enabling interconnection among competing, compatible products that adhere to the same standards, which serves to facilitate modularity, innovation, and competition. To achieve these goals, participants in standard-setting organizations (SSOs) must act in good faith to encourage broad participation in the process and implementation of the results."

"The circuit court's opinion absolves conduct in violation of these norms." The CCIA argues that "Because the circuit court's opinion undermines consensus-based standard setting, misunderstands the market implications when standards are captured by patents, and conflates competition among standards with marketplace competition, the Court should grant the petition."

On December 30, the American Antitrust Institute (AAI), Consumer Federation of America (CFA), and Public Patent Foundation (PPF) filed an amicus curiae brief [30 pages in PDF] urging the Supreme Court to grant certiorari and reverse the judgment of the Court of Appeals. They wrote that "the decision below threatens to seriously impair antitrust enforcement against standard-setting abuse".

This case is FTC v. Rambus, Inc., U.S. Supreme Court, Sup. Ct. No. 08-694, a petition for writ of certiorari to the U.S. Court of Appeals for the District of Columbia, D.C. Nos. 07-1086 and 07-1124. See also, Supreme Court docket.

1/12. Michael Skarzynski was named President and CEO of Arbitron. He was also named to the Board of Directors. Stephen Morris remains Chairman. See, Arbitron release.

1/12. President Bush held what will likely be his last news conference as President. He used the occasion to reiterate his support for free trade and opposition to protectionism. "I hope the trend is bad against protectionism." He said that "not getting the three trade bills out of Congress on Colombia, Panama and South Korea ... was a disappointment." He continued that "I am concerned about protectionism. In tough economic times, the temptation is to say, well, let's just throw up barriers and protect our own and not compete. ... And it would be a huge mistake if we become a protectionist nation." See, transcript.

1/12. Dell and states settled claims that it misled consumers who financed purchases through Dell Financial Services, L.P. regarding rates and terms. See, for example, Assurance of Voluntary Compliance [21 pages in PDF] filed in Texas v. Dell, in the District Court, Travis County, Texas. See also, Texas AG's release.

1/9. The Center for Democracy and Technology (CDT) released a paper [12 pages in PDF] titled "HIPAA and Health Privacy: Myths and Facts -- Part 2".

1/8. The U.S. Patent and Trademark Office (USPTO) published a notice in the Federal Register requesting nominations of individuals to serve on the National Medal of Technology and Innovation Nomination Evaluation Committee. Nominations are due "within 60 days of the publication of this notice". This is Sunday, March 8, 2009. See, Federal Register, January 8, 2009, Vol. 74, No. 5, at Pages 800-801.

1/8. The U.S. Patent and Trademark Office (USPTO) published a notice in the Federal Register requesting nominations for its National Medal of Technology and Innovation (NMTI) program. The deadline to submit nomination forms is May 29, 2009. See, Federal Register, January 8, 2009, Vol. 74, No. 5, at Pages 801-802.

1/8. The Federal Communications Commission (FCC) published a notice in the Federal Register that announces, describes and sets filing deadlines regarding, a petition for reconsideration [PDF] filed on December 1, 2008 by Cohen Dippell & Everist regarding the FCC's Second Report and Order and Second Further Notice of Proposed Rulemaking [PDF] in its proceeding titled "In the Matter of An Inquiry Into the Commission's Policies and Rules Regarding AM Radio Service Directional Antenna Perfomance Verification". The FCC adopted this item on September 24, 2008, and released the text on September 26, 2008. It is FCC 08-228 in MM Docket No. 93-177. The deadline to submit oppositions is January 23, 2009. The deadline for replies is February 2, 2009. See, Federal Register, January 8, 2009, Vol. 74, No. 5, at Page 810.

This issue contains the following items:
 • Obama Transition Suggests Legislative Extensive of February 17 DTV Transition
 • New York and Arbitron Settle PPM Dispute
 • FTC and Amici Seek Supreme Court Review in Rambus Case

The House will not meet. See, Rep. Hoyer's schedule for week of January 12.

The Senate will meet at 2:00 PM. It is scheduled to resume consideration of S 22 [LOC | WW], "Omnibus Public Land Management Act of 2009".

12:30 - 2:30 PM. The Department of Homeland Security's (DHS) Homeland Security Advisory Council (HSAC) will hold a closed meeting. See, notice in the December 30, 2008, Vol. 73, No. 250, at Pages 79894-79895, and supplemental notice in the Federal Register, January 8, 2009, Vol. 74, No. 5, at Page 826. Location: DHS, Nebraska Avenue Complex.

Effective date of the U.S. Patent and Trademark Office's (USPTO) rules of practice amendments that adjust the transmittal and search fees for international applications filed under the Patent Cooperation Treaty (PCT). See, notice in the Federal Register, November 12, 2008, Vol. 73, No. 219, at Pages 66754-66759.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Second Further Notice of Proposed Rule Making (2ndFNPRM) regarding rules to protect AM stations from the potential effects of nearby tower construction. The FCC adopted this 2ndFNPRM on September 24, 2008, and released the text [28 pages in PDF] on September 26, 2008. It is FCC 08-228 in MM Docket No. 93-177. See, notice in the Federal Register, December 11, 2008, Vol. 73, No. 239, at Pages 75376-75381.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its notice of proposed rulemaking (NPRM) regarding creating a new replacement digital television translator service that will permit full service television stations to continue to provide service to viewers within their coverage area who have lost service as a result of those stations' digital transition. The FCC adopted this item on December 22, 2008, and released the text [14 pages in PDF] on December 23, 2009. It is FCC 08-278 in MB Docket No. 08-253. See, notice in the Federal Register, January 2, 2009, Vol. 74, No. 1, at Pages 61-67.

The House will meet at 12:30 PM for morning hour, and at 2:00 PM for legislative business. Votes will be postponed until 6:30 PM. It will consider several non-technology related items under suspension of the rules. See, Rep. Hoyer's schedule for week of January 12.

8:00 - 10:00 AM. The BroadbandCensus dot com [http colon slash slash broadbandcensus dot com] will host a breakfast event titled "What Will Broadband Do to the Universal Service Fund?" The speakers will include Greg Rhode (E-Copernicus/E9-1-1 Institute). For more information, contact Drew Clark at drew at broadbandcensus dot com or 202-580-8196. Breakfast begins at 8:00 AM. The program begins at 8:40 AM. The price to attend these monthly events is $45. These events are open to the public. Location: Old Ebbitt Grill, 675 15th St., NW.

9:00 - 10:30 AM. The Information Technology and Innovation Foundation (ITIF) will host panel discussion titled "Globalization and Technology Standards: The Case for Expanded U.S. Leadership". The speakers will be Rob Atkinson (ITIF), Donald Purcell (Center for Global Standard Analysis), Jeff Weiss (Office of the U.S. Trade Representative), and Mary Saunders (Department of Commerce). A light breakfast will be served. Location: ITIF, Suite 200, 1250 Eye St., NW.

9:30 AM. The Senate Foreign Relations Committee will hold a hearing on the likely nomination of Hilary Clinton to be Secretary of State. See, notice. Location: Room 216, Hart Building.

11:00 AM - 12:00 PM. The Federal Communications Commission's (FCC) Advisory Committee for the 2011 World Radiocommunication Conference will meet. See, notice in the Federal Register: December 22, 2008, Vol. 73, No. 246, at Page 78358. Location: FCC, Commission Meeting Room, 445 12th St.,  SW.

12:00 NOON. The Cato Institute will host a panel discussion titled "The Dangers of Network Neutrality Regulation". The speakers will be Timothy Lee (Cato) and Jerry Brito (George Mason University School of Law). Lunch will be served. See, notice and registration page. Location: Room B-354, Rayburn Building, Capitol Hill.

12:15 - 1:30 PM. The Federal Communications Bar Association's (FCBA) Mass Media Practice Committee will host a brown bag lunch titled "Understanding BIA/Arbitron Reports and the Local Radio Ownership Rule". The speakers will be Mark Fratrik (BIA Financial Network), John Pelkey (Garvey Schubert Barer), and Bill Getz (Carl T. Jones Corp.). See, notice and registration page. Location: National Association of Broadcasters, 1771 N St., NW.

2:00 - 3:00 PM. The Department of Homeland Security's (DHS) Homeland Security Information Network Advisory Committee will meet by teleconference to discuss "implementation efforts associated with the Next Generation of the Homeland Security Information Network". See, notice in the Federal Register, January 7, 2009, Vol. 74, No. 4, at Pages 721-722.

5:00 - 7:00 PM. The Center for Democracy and Technology's (CDT) Internet Caucus will host a reception and technology demonstration associated with its January 14 event titled "State of the Net Conference". Location: Room 902, Hart Building, Capitol Hill.

The House will meet at 10:00 AM for legislative business. See, Rep. Hoyer's schedule for week of January 12.

8:30 AM. The Center for Democracy and Technology's (CDT) Internet Caucus will host an event titled "State of the Net Conference". See, notice. Location: Hyatt Regency Capitol Hill.

10:00 - 11:00 AM. Chris Essid, Director of the Department of Homeland Security's (DHS) Office of Emergency Communications will give a speech on "latest news and developments on public safety communications and related initiatives". See, notice. Location: FCC, Commission Meeting Room, TW-C305.

1:30 - 6:00 PM. The DC Bar Association will host an event titled "Impact of the New Obama Administration on Laws Affecting Mergers and Acquisitions". The speakers will include William Kovacic (outgoing Chairman of the Federal Trade Commission), Brian Breheny (Securities and Exchange Commission), and Joshua Odintz (Senate Finance Committee staff). See, notice. Location: Grand Hyatt Washington, 1000 H St., NW.

2:00 PM. The Senate Homeland Security and Government Affairs Committee will hold hearing on on the likely nominations of Peter Orszag to be Director of the Office of Management and Budget (OMB) and Robert Nabors to be Deputy Director of the OMB. See, notice. Location: Room 342, Dirksen Building.

The House will meet at 10:00 AM for legislative business. See, Rep. Hoyer's schedule for week of January 12.

RESCHEDULED FROM JANUARY 8. 9:30 AM. The Senate Judiciary Committee (SJC) will hold a hearing on the likely nomination of Eric Holder to be Attorney General in the Obama administration. See, notice. The SJC will webcast this hearing. Location: Room 325, Russell Building.

9:30 AM. The Senate Foreign Relations Committee will hold a business meeting to consider the likely nomination of Hilary Clinton to be Secretary of State. See, notice. Location: Room 216, Hart Building.

10:00 AM. The Senate Banking Committee will hold a hearing on several likely nominees of President elect Obama: Mary Schapiro (CEO of the Financial Industry Regulatory Authority) to be Chairman of the Securities and Exchange Commission (SEC), Christina Romer (UC Berkeley) to be Chairman of the Council of Economic Advisors (CEA), Austan Goolsbee (University of Chicago) to be a member of the CEA, Cecilia Rouse (Princeton) to be a member of the CEA, and Daniel Tarullo (Georgetown University law school) to be a member of the Federal Reserve Board (FRB). See, notice. Location: Room 538, Dirksen Building.

10:00 AM. The Senate Homeland Security and Government Affairs Committee will hold hearing on President elect Obama's likely nomination of Janet Napolitano to be Secretary of Homeland Security. See, notice. Location: Room 342, Dirksen Building.

10:00 AM. The Federal Communications Commission (FCC) might hold an event titled "Open Meeting". The agenda includes adoption of rules to implement S 3663 [LOC | WW], "Short-term Analog Flash and Emergency Readiness Act", and annual performance awards for career Senior Executive Service personnel. The event will also include reports from FCC Bureau chiefs. Location: FCC, Commission Meeting Room, 445 12th St., SW.

12:00 NOON - 1:30 PM. The Federal Communications Bar Association's (FCBA) Annual Seminar Committee will hold a brown bag lunch. Location: Wilkinson Barker Knauer, 2300 N St., NW.

12:15 PM - 1:30 PM. Julius Knapp, Chief of the Federal Communications Commission's (FCC) Office of Engineering and Technology (OET) will speak at a meeting titled "White Spaces: How Will the FCC's Rules Work and What Consumer Devices are in the Pipeline?" The FCC's proceeding is titled "In the Matter of Unlicensed Operation in the TV Broadcast Bands Additional Spectrum for Unlicensed Devices Below 900 MHz and in the 3 GHz Band" and numbered ET Docket No. 04-186 and 02-380. See, FCC's order adopted on November 4, 2008, and story titled "FCC Adopts White Space Order" in TLJ Daily E-Mail Alert No. 1,852, November 4, 2008. The Federal Communications Bar Association's (FCBA) asserts that this is an FCBA event. Location: Sidley Austin, 6th floor, 1501 K St., NW.

5:00 PM. Deadline to submit applications to the National Telecommunications and Information Administration (NTIA) for a grant for the Pan-Pacific Education and Communications Experiments by Satellite (PEACESAT) Program. See, notice in the Federal Register, December 5, 2008, Vol. 73, No. 235, at Pages 74146-74148.

Rep. Hoyer's schedule for the week of January 12 states that no votes are expected in the House.

12:15 - 1:30 PM. The Federal Communications Bar Association's (FCBA) Engineering and Technical Practice and International Telecommunications Practice Committee will host a brown bag lunch titled "Satellite 201: So You Want to Launch a Satellite? Understanding the International and Domestic Regulatory Considerations". The speakers will be Tom Tycz (Goldberg Godles Wiener & Wright) and others. For more information, contact Christy Hammond chammond at wileyrein dot com or 202-719-7365. Location: Wiley Rein, 10th floor, 1750 K St., NW.

Deadline to submit comments to the National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) regarding its SP 800-57 Part 3 [103 pages in PDF] titled "Recommendation for Key Management, Part 3 Application-Specific Key Management Guidance".

Deadline to submit reply comments to the Office of the U.S. Trade Representative (OUSTR) regarding the operation, effectiveness, and implementation of and compliance with trade agreements regarding telecommunications products and services, including the World Trade Organization (WTO) General Agreement on Trade in Services, the North American Free Trade Agreement (NAFTA), free trade agreements (FTAs) with Australia, Bahrain, Chile, Morocco, and Singapore, the Dominican Republic-Central America-United States FTAs. See, notice in the Federal Register, November 25, 2008, Vol. 73, No. 228, at Page 71707-71708.

Effective date of the U.S. Patent and Trademark Office's (USPTO) 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, notice in the Federal Register, November 17, 2008, Vol. 73, No. 222, at Pages 67759-67776.

Martin Luther King's Birthday. See, Office of Personnel Management's (OPM) list of 2009 federal holidays.

The House will not meet.

Effective date of the Department of the Treasury's (DOT) and the Federal Reserve Board's (FRB) rules implementing the Unlawful Internet Gambling Enforcement Act of 2006 (UIGEA). See, text of UIGEA and notice in the Federal Register that describes and recites these rules. See, Federal Register, November 18, 2008, Vol. 73, No. 223, at Pages 69381-69411. See also, story titled "Treasury & FRB Publish Internet Gambling Rules" in TLJ Daily E-Mail Alert No. 1,858, November 18, 2008.

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