10/13. Rep. Todd Tiahrt (R-KS) and Rep. Dennis Moore (D-KS) introduced HR 3803 [LOC | WW], a bill to require carriers to provide location information to law enforcement agencies, both as to cell phones, and any VOIP capable devices.

This bill would add a new Section 222A to the Communications Act mandating disclosure without legal process.

47 U.S.C. § 222 pertains to "Privacy of customer information". It requires carriers to keep confidential "customer proprietary network information" or CPNI.

Section 222 already contains law enforcement exceptions. It provides that "Nothing in this section prohibits a telecommunications carrier from ... disclosing ... customer proprietary network information ... to provide call location information ... to a public safety answering point, emergency medical service provider or emergency dispatch provider, public safety, fire service, or law enforcement official, or hospital emergency or trauma care facility, in order to respond to the user's call for emergency services".

However, this bill goes beyond "the user's call for emergency services". Also, rather than creating an exception to the prohibition, it creates a mandate upon carriers to provide information.

The bill would provide that "Notwithstanding section 222, at the request of a law enforcement agency, a telecommunications carrier shall provide call location information concerning the user of a commercial mobile service (as such term is defined in section 332(d)) or the telecommunications device of the user of an IP-enabled voice service (as such term is defined in section 7 of the Wireless Communications and Public Safety Act of 1999 (47 U.S.C. 615b)) to a law enforcement official, in order to respond to the user's call for emergency services or to respond to an emergency situation that involves the risk of death or serious physical harm".

This bill is also titled the "Kelsey Smith Act". She was a young woman from the state of Kansas who was murdered. She was abducted in a parking lot, which had a surveillance camera which recorded the abduction. This is what enabled police to identify the killer. She also had a cell phone in her possession. But, she did not make any calls for emergency services. Rather, after her abduction calls were made to her number. The carrier's CPNI records included ping data -- records of those uncompleted calls, and the cell towers involved. This data enabled police to find her body.

If enacted, there would be situations where HR 3803 would assist police in preventing a crime, or emergency medical services in rendering emergency services.

However, there would likely be more situations in which this bill would assist law enforcement agencies in investigating crimes after the fact -- including locating dead bodies, stolen items, and evidence of crimes -- and facilitating criminal prosecutions.

Enactment of this bill would also further the ability of police to engage in location surveillance of individuals, without a search warrant, or any other legal process. Police would need only state to carriers that an "emergency situation" exists.

The bill contains no process or review that would serve as a check against law enforcement abuse.

This bill was referred to the House Commerce Committee (HCC) and the House Judiciary Committee (HJC).

10/16. The U.S. Court of Appeals (2ndCir) issued its opinion [38 pages in PDF] in Meijer Inc. v. Ferring, B.V., a class action antitrust action involving pharmaceutical products and patents.

The plaintiffs are direct purchasers of desmopressin acetate tablets, which are also known as DDAVP.

The defendants are Ferring B.V., Ferring Pharmaceuticals, and Aventis Pharmaceuticals. Ferring developed, patented (U.S. Patent No. 5,047,398), and now manufactures DDAVP. Aventis holds FDA approval for DDAVP tablets and a license from Ferring to market and sell the drug.

The plaintiffs filed a class action complaint in the U.S. District Court (SDNY) alleging abuse of the patent system to unlawfully maintain a monopoly over DDAVP.  The plaintiffs allege that Ferring and Aventis inflated the price of DDAVP by suppressing generic competition for the tablets in violation of federal antitrust laws, namely, Section 2 of the Sherman Act, which is codified at 15 U.S.C. § 2.

In 2002, in a different action, Ferring filed a complaint in the same U.S. District Court, with the same Judge presiding, alleging patent infringement against Barr Laboratories, which had filed an Abbreviated New Drug Application (ANDA) with the Food and Drug Administration (FDA) for a generic version of DDAVP.

The District Court held in that other case, and the U.S. Court of Appeals (FedCir) affirmed, that the patent is unenforceable due to inequitable conduct before the U.S. Patent and Trademark Office (USPTO). The plaintiffs in the present case rely upon that other case.

The District Court in the present case concluded that the plaintiffs lack antitrust standing (that is, that the plaintiffs' injury is not of the type the antitrust laws were intended to prevent, and the plaintiffs would not make an efficient enforcer), and failure to state a claim upon which relief can be granted, pursuant to Rule 12(b)(6), FRCP.

The District Court also held that there is no antitrust standing because the 398 patent was not enforced against the plaintiffs, and because they were not competitors of Ferring or Aventis.

The District Court also concluded that conduct in obtaining and enforcing a patent is generally protected from antitrust liability by the First Amendment, but the patentee loses this immunity and can incur antitrust liability for enforcing a patent if the patent was obtained by fraud on the USPTO. But, fraud is different from mere inequitable conduct.

The District Court dismissed the complaint.

This appeal followed. The Court of Appeals vacated the judgment of the District Court and remanded.

The Court of Appeals first held that it, and not the Federal Circuit, has jurisdiction over this appeal, notwithstanding 28 U.S.C. § 1338.

Second, it held that the plaintiffs have antitrust standing. Third, it held that the plaintiffs sufficiently pled fraud, with only a conclusory allegation. The case goes back to the District Court for further proceedings.

This case is Meijer Inc., et al. v. Ferring, B.V., et al., U.S. Court of Appeals for the 2nd Circuit, App. Ct. No. 06-5525-cv, an appeal from the U.S. District Court for the Southern District of New York, D.C. No. No. 05 Cv. 2237, Judge Charles Brieant presiding. Judge John Walker wrote the opinion of the Court of Appeals, in which Judges Feinberg and Livingston joined.

10/16. Adam Storch was named Managing Executive of the Securities and Exchange Commission's (SEC) Division of Enforcement. The SEC stated in a release that this is a new position, and that it is in the nature of a chief operating officer. Storch previously worked for Goldman Sachs. Before that, he worked for Deloitte & Touche.

10/16. Adam Thierer (at left) was named President of the Progress & Freedom Foundation (PFF), a Washington DC based, free market oriented, think tank that focuses on information technology and communications policy questions. Thierer was previously a Senior Fellow at the PFF, researching, writing and speaking on digital media, and proposals for regulation of such media. He replaces Ken Ferree, who remains at the PFF as a Senior Fellow. Before joining the PFF in 2005, Thierer worked at the Cato Institute. See, PFF release.

10/15. The Senate confirmed Brendan Johnson to be the U.S. Attorney for the District of South Dakota for the term of four years. See, Congressional Record, October 15, 2009, at Page S10497.

10/15. The Senate confirmed Karen Loeffler to be the U.S. Attorney for the District of Alaska for the term of four years. See, Congressional Record, October 15, 2009, at Page S10497.

10/14. The Senate confirmed Timothy Heaphy to be the U.S. Attorney for the Western District of Virginia for the term of four years. See, Congressional Record, October 14, 2009, at Page S10441.

10/16. The Office of the U.S. Attorney for the District of New Jersey (USAO/NJ) announced in a release that Edwin Andres Pena has been extradited from Mexico to the state of New Jersey. He was charged by criminal complaint in 2006, arrested, and released on bail; he then fled the U.S. A grand jury of the U.S. District Court (DNJ) returned a twenty count indictment [17 pages in PDF] that charges Pena with computer hacking in violation of 18 U.S.C. § 1030, as well as conspiracy (18 U.S.C. § 371) and wire fraud (18 U.S.C. § 1343). The USAO stated in its release that "Pena was indicted on fraud and computer hacking charges for his role in a scheme to defraud Voice Over Internet Protocol (VoIP) telephone service providers. Pena, who purported to be a legitimate wholesaler of these Internet-based phone services, allegedly sold discounted service plans to his unsuspecting customers. The Indictment alleges that Pena was able to offer such low prices because he would secretly hack into the computer networks of unsuspecting VoIP providers, including one Newark-based company, to route his customers' calls." The indictment also contains details regarding the Pena's methods of computer hacking, evading detection, and sending calls.

10/13. The Department of Justice (DOJ) announced in a release that AT&T Missouri (previously Southwestern Bell Telephone) agreed to pay a $1.4 Million civil fine in settlement of a lawsuit alleging violation of the False Claims Act (31 U.S.C. § 3729) in connection with the Federal Communications Commission's (FCC) waste, fraud and abuse plagued e-rate tax and subsidy program. The DOJ stated that AT&T "provided false information to the E-Rate program and otherwise violated the program's requirements by engaging in non-competitive bidding practices for E-Rate contracts". This case is U.S. ex rel. American Fiber Systems, Inc. v. Southwestern Bell Telephone Co., U.S. District Court for the Western District of Missouri, D.C. No. 06-0389-CV-W-HFS.

10/20. The U.S. District Court (EDKent) sentenced Joseph Robert Leitner to serve 15 years and 8 months in prison, and confiscated his interest in his house, following Leitner's plea of guilty to possession of illegal pornography on his computer and CDs. He did not plead guilty to producing, distributing, or selling illegal pornography. To justify the length of the sentence, and home confiscation, the government produced at sentencing testimony that Leitner "molested" a minor. One witness testified that Leitner, who is now 62 years old, molested the witness when both were minors. This testimony, even if true, is based on events that occurred at least 45 years ago. This case demonstrates the zealousness with which some federal prosecutors and judges now approach cases involving looking at illegal digital pornography. It also illustrates that these mere possession cases can result in longer sentences than cases involving more heinous sexual and computer related conduct. See, two following items.

10/9. The Superior Court of the District of Columbia sentenced Christopher Brown to serve 12 years in prison following his plea of guilty to first degree child sexual abuse. The Department of Justice (DOJ) stated in a release that Brown "sexually abused the young girl repeatedly over the course of several years, while she was between the ages of 6 and 8 ... virtually every day".

10/8. The U.S. District Court (EDKent) sentenced Sungkook Kim to serve 12 years and one month in prison following is plea of guilty to, or conviction of, computer fraud (18 U.S.C. § 1030), aggravated identity theft (18 U.S.C. § 1028A), extortion, and possession of illegal pornography. The Department of Justice (DOJ) stated in a release that he installed keylogger software on the computers of others, copied computer files, and sent e-mail messages to a woman to extort from her, not money, but "sexual images of herself".

10/20. The U.S. District Court (EDVa) sentenced Thomas Johnson, formerly an attorney at the Richmond, Virginia law firm of Canfield Baer Heller & Johnston, to serve 7 years in prison following his plea of guilty to peer to peer possession of illegal pornography. Notably, the Department of Justice (DOJ) stated in a release that "FBI agents executed a search warrant at the law firm and seized two of Johnston's computers".

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The House will meet at 10:00 AM for legislative business. See, Rep. Hoyer's schedule for the week of October 19.

9:00 AM - 12:00 NOON. Day three of a three day meeting of the Department of Homeland Security's (DHS) Homeland Security Information Network Advisory Committee. See, notice in the Federal Register, October 9, 2009, Vol. 74, No. 195, at Pages 52250-52251. Location: Bolger Center, 9600 Newbridge Drive, Potomac, MD.

10:00 AM. The R&D Credit Coaltion will hold a news briefing. Location: TechAmerica, Suite 600, 601 Pennsylvania Ave., NW.

10:00 AM - 4:00 PM. The U.S.-China Economic and Security Review Commission will hold one of a series of meetings to consider staff drafts of material for its 2009 Annual Report to Congress. See, notice in the Federal Register, August 5, 2009, Vol. 74, No. 149, at Pages 39145-39146. Location: Conference Room 231, Hall of States, 444 North Capitol St., NW.

10:15 AM. The House Judiciary Committee (HJC) will meet to mark up several bills, including HR 3237 [LOC | WW], an untitled bill regarding National and Commercial Space Programs. See, notice. Location: Room 2141, Rayburn Building.

10:30 AM. Rep. Rick Boucher (D-VA) and others will hold a news conference regarding a white spaces broadband network. Location: Room 2103, Rayburn Building.

2:00 - 4:00 PM. The House Intelligence Committee HIC) will hold a closed hearing on extending expiring provisions of the 2001 surveillance act. See, notice. Location: Room HVC 304, Capitol Building.

2:00 PM. The Senate Judiciary Committee (SJC) will hold a hearing on the nomination of Jane Stranch to be a Judge of the U.S. Court of Appeals for the 6th Circuit. See, notice. The SJC will webcast this event. Location: Room 226, Dirksen Building.

2:30 PM. The Senate Commerce Committee's (SCC) Subcommittee on Space and Science will hold a hearing titled "The Case for Space: Examining the Value". See, notice. Location: Room 253, Rayburn Building.

The House will meet at 10:00 AM for legislative business. See, Rep. Hoyer's schedule for the week of October 19.

10:00 AM. The Senate Judiciary Committee (SJC) will hold an executive business meeting. The agenda again includes consideration of HR 985 [LOC | WW] and S 448 [LOC | WW], both titled the "Free Flow of Information Act of 2009".The SJC rarely follows is published agendas. See, notice. The SJC will webcast this meeting. Location: Room 226, Dirksen Building.

10:00 AM. The House Commerce Committee's (HCC) Subcommittee on Communications, Technology and the Internet will hold a hearing titled "Video Competition in the Digital Age". See, notice. Location: Room 2123, Rayburn Building.

10:00 AM - 12:00 NOON. The House Science Committee's (HSC) Subcommittee on Research and Science Education will hold a hearing titled "Engineering in K-12 Education". The HSC will webcast this event. Location: Room 2325, Rayburn Building.

10:00 - 11:40 AM. The House Intelligence Committee's HIC) Subcommittee on Intelligence Community Management will hold an open hearing titled "Statutory Requirements for Congressional Notifications of Intelligence Activities". See, notice. Location: undisclosed.

10:00 AM. The Federal Communications Commission (FCC) may host an event titled "open meeting". The only item on the agenda [PDF] is adoption of Notice of Proposed Rulemaking (NPRM) regarding "policies to preserve the open Internet", in WC Docket No. 07-52. This is the FCC's net neutrality NPRM announced by FCC Chairman Julius Genachowski by speech [8 pages in PDF] on September 21, 2009. See, story titled "Genachowski, Copps and Clyburn Back Net Neutrality Rules", and related stories, in TLJ Daily E-Mail Alert No. 1,986, September 22, 2009. For more information, contact Jen Howard at 202-418-0506 or jen dot howard at fcc dot gov. Location: FCC, Commission Meeting Room, 445 12th St., SW.

10:00 AM - 12:00 NOON and 2:00 - 6:00 PM. Day one of a two day meeting of the President's Council of Advisors on Science and Technology (PCAST). The agenda for October 22 includes "Role of Science and Technology in Foreign Policy and Development Assistance" and "Science, Technology, Engineering, and Mathematics (STEM) Education". The meeting is open to the public, except for an additional session with the President. See, agenda [PDF] and notice in the Federal Register, September 25, 2009, Vol. 74, No. 185, at Pages 49047-49048. Location: National Academy of Sciences, 2100 C St., NW.

11:00 AM. The House Judiciary Committee's (HJC) Subcommittee on Commercial and Administrative Law will hold a hearing titled "Too Big To Fail -- The Role for Bankruptcy and Antitrust Law in Financial Regulation Reform". See, notice. The HJC will webcast this hearing. Location: Room 2141, Rayburn Building.

11:00 AM. The Heritage Foundation will host a discussion of the book [Amazon] titled "Three Felonies a Day: How the Feds Target the Innocent". This book addresses, among other things, abusive prosecutions of journalists, exporters, politicians, and lawyers. The speakers will be Harvey Silverglate (author) and Brian Walsh (Heritage). See, notice. Location: Heritage, 214 Massachusetts Ave., NE.

1:00 - 2:30 PM. The American Bar Association (ABA) will host a panel discussion by audio webcast and teleconference titled "The Right of Publicity: From Pop Stars to Politicians". The speakers will be __. The price to participate ranges from $60 to $150. See, notice.

POSTPONED TO DECEMBER 3. 2:00 PM. The House Commerce Committee's (HCC) Subcommittee on Communications, Technology and the Internet will hold a hearing on HR ___, the "Calling Card Consumer Protection Act". Location: Room 2322, Rayburn Building.

2:00 - 4:00 PM. The House Science Committee's (HSC) Subcommittee on Technology and Innovationi will hold a hearing titled "Cybersecurity Activities at NIST’s Information Technology Laboratory". The HSC will webcast this event. Location: Room 2318, Rayburn Building.

Deadline to submit initial comments to the Federal Communications Commission's (FCC) Media Bureau (MB) regarding Cablevision Systems Corporation's request for a waiver of FCC's rules that prohibit a cable operator from encrypting a basic service tier. See, FCC's Public Notice [3 pages in PDF]. It is DA 09-2094 in MB Docket No. 09-168.

EXTENDED FROM OCTOBER 15. Further extended deadline to submit reply comments to the Federal Communications Commission (FCC) regarding its Notice of Inquiry (NOI) [23 pages in PDF] in its proceeding titled "In the Matter of Implementation of Section 6002(b) of the Omnibus Budget Reconciliation Act of 1993 (and) Annual Report and Analysis of Competitive Market Conditions With Respect to Mobile Wireless including Commercial Mobile Services". (Parentheses added.) This NOI is FCC 09-67 in WT Docket No. 09-66. The FCC adopted and released this NOI on August 27, 2009. See, notice of extension (FCC 09-72). See also, further notice of extension (DA 09-2207).

Rep. Hoyer's schedule for the week of October 19 states that "no votes are expected in the House".

10:00 AM - 12:00 NOON and 2:00 - 5:00 PM. Day two of a two day meeting of the President's Council of Advisors on Science and Technology (PCAST). The agenda for the morning of October 23 includes "Role of Science and Technology in Foreign Policy and Development Assistance" and "Science, Technology, Engineering, and Mathematics (STEM) Education". The agenda for the afternoon session includes reports for committes and working groups. The meeting is open to the public, except for an additional session with the President. See, agenda [PDF] and notice in the Federal Register, September 25, 2009, Vol. 74, No. 185, at Pages 49047-49048. Location: National Academy of Sciences, 2100 C St., NW.

10:00 AM - 4:15 PM. Federal Communications Commission (FCC) Wireless Telecommunications Bureau (WTB) will conduct a mock auction for Auction 86.

12:00 NOON - 1:30 PM. The DC Bar Association will host an event titled "50 Hot Technology Tips, Tricks & Web Sites". The speakers will be Reid Trautz and Daniel Mills. The price to attend ranges from $15 to $35. Most DC Bar events are not open to the public. This event does not qualify for continuing legal education (CLE) credits. See, notice. For more information, call 202-626-3463. Location: DC Bar Conference Center, 1101 K St., NW.

12:15 - 1:30 PM. The Federal Communications Commission (FCC) will host a brown bag lunch titled "Meet and Greet the FCC’s new Public Safety and Homeland Security Bureau Chief Rear Admiral (ret.) James Arden Barnett and staff". For more information contact Nneka Ezenwa at 202-515-2466 or nneka dot n dot ezenwa at verizon dot com. The Federal Communications Bar Association (FCBA) states that this is an FCBA event. The FCBA excludes people from its events. Location: Verizon, Suite 400, 1300 I St., NW.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Public Notice [PDF] that requests comments regarding "the sufficiency of current spectrum allocations in spectrum bands, including but not limited to the prime spectrum bands below 3.7 GHz". This is to aid the FCC in drafting its "National Broadband Plan". This item is DA 09-2100 in GN Docket Nos. 09-47, 09-51, and 09-137.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to the FCC's Notice of Proposed Rulemaking (NPRM) regarding requiring applicants that win broadband radio service (BRS) licenses in Auction 86, and any subsequent auction, to demonstrate substantial service on or before four years from the date of license grant. The FCC adopted this NPRM on September 8, 2009, and released the text on September 11, 2009. It is FCC 09-70 in WT Docket No. 03-66 and RM-10586. Auction 86 is scheduled to begin on October 27, 2009. See, notice in the Federal Register, September 28, 2009, Vol. 74, No. 186, at Pages 49356-49359.

12:15 - 1:30 PM. The Federal Communications Bar Association's (FCBA) Engineering and Technical and Wireless Committees will host a brown bag lunch titled "Everything You Wanted to Know About Cell Phone Jamming In Case Your Phone Goes Dead". The speakers will be Michael Marcus (South Carolina Department of Corrections), Charles Jamison (CTIA), and others. See also, S 251 [LOC | WW] and HR 560 [LOC | WW], the "Safe Prisons Communications Act of 2009". Register with Tami Smith at 202-736-8257 or tesmith at sidley dot com. Location: Sidley Austin, 1501 K St., NW.

12:15 - 1:30 PM. The Federal Communications Commission (FCC) will host a brown bag lunch titled "Meet the FCC Media Bureau Chief, William Lake". The Federal Communications Bar Association (FCBA) states that this is an FCBA event. The FCBA excludes people from its events. Location: Wiley Rein, 1776 K St., NW.

6:00 - 9:15 PM. The DC Bar Association will host an event titled "Copyright Law and Litigation". The speaker will be Kenneth Kaufman (Manatt Phelps & Phillips). The price to attend ranges from $89 to $129. Most DC Bar events are not open to the public. This event qualifies for continuing legal education (CLE) credits. See, notice. For more information, call 202-626-3488. Location: DC Bar Conference Center, 1101 K St., NW.

9:30 AM - 1:00 PM. The National Telecommunications and Information Administration's (NTIA) Commerce Spectrum Management Advisory Committee will meet. See, notice in the Federal Register, October 9, 2009, Vol. 74, No. 195, at Pages 52185-52186. Location: Department of Commerce, Room 4830, 1401 Constitution Ave., NW.

9:30 AM. The Department of Commerce's (DOC) Bureau of Industry and Security's (BIS) Sensors and Instrumentation Technical Advisory Committee will meet. See, notice in the Federal Register, October 14, 2009, Vol. 74, No. 197, at Pages 52749-52750. Location: DOC, Room 3884, 14th Street between Constitution and Pennsylvania Aves., NW.

12:00 NOON - 2:00 PM. The Computer and Communications Industry Association (CCIA) will host an event titled "Competition Policy as Innovation Policy". See, notice and registration page. Location: Newseum, 555 Pennsylvania Ave., NW.

Expiration of the Copyright Office's (CO) third triennial rules designating exemptions to the anti-circumvention provisions of the Digital Millennium Copyright Act (DMCA). These rules are codified at 37 C.F.R. § 201.40. See, notice in the Federal Register, October 6, 2008, Vol. 73, No. 194, at Pages 58073-58079, and story titled "Copyright Office Announces 4th Triennial Review of DMCA Exemptions" in TLJ Daily E-Mail Alert No. 1,839, October 7, 2008.

The Federal Communications Commission's (FCC) Auction 86, the broadband radio service (BRS) auction, is scheduled to begin.

9:30 - 10:30 AM. The Federal Communications Commission's (FCC) WRC-12 Advisory Committee's Informal Working Group 3 (Space Services) will meet. See, notice. Location: FCC, Rooms 4-B142 and 4-B112, 445 12th St., SW.

10:30 AM - 12:30 PM. The Federal Communications Commission's (FCC) WRC-12 Advisory Committee's Informal Working Group 2 (Terrestrial Services) will meet. See, notice. Location: FCC, Rooms 4-B142 and 4-B112, 445 12th St., SW.

RESCHEDULED FROM OCTOBER 14. 2:30 PM. The Senate Commerce Committee (SCC) will hold a hearing titled "Combating Distracted Driving: Managing Behavioral and Technological Risks". The witnesses will be Ray LaHood (Secretary of Transportation) and Julius Genachowski (FCC Chairman). See, notice. Location: Room 253, Russell Building.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Notice of Inquiry (NOI) [33 pages in PDF] in its proceeding titled "In the Matter of Consumer Information and Disclosure Truth-in-Billing and Billing Format IP-Enabled Services". This NOI is FCC 09-68 in CG Docket Nos. 09-158 and CC Docket No. 98-170 and WC Docket No. 04-36. The FCC adopted it on August 27, 2009, and released the text on August 28, 2009.

Deadline to submit comments to the Federal Communications Commission (FCC) issued a Public Notice [10 pages in PDF] requesting comments regarding cost estimates and models for providing fiber optic connectivity to "anchor institutions, such as public schools and libraries, community colleges, and hospitals". See also, story titled "FCC Seeks Comments Regarding Cost of Connecting Schools and Libraries with Fiber" in TLJ Daily E-Mail Alert No. 2,000, October 9, 2009. The FCC seeks answers to these questions to assist it in drafting a document titled "National Broadband Plan". This item is DA 09-2194 in GN Docket Nos. 09-47, 09-51, and 09-137.