2/25. The House Judiciary Committee (HJC) held a hearing titled "Competition in the Media and Entertainment Distribution Market". The hearing focused on the antitrust implications of the proposed merger of Comcast and NBC Universal.

In December, Comcast and General Electric (which owns NBC Universal) announced that they signed an agreement to form a joint venture that will be 51 percent owned by Comcast, 49 percent owned by GE, and managed by Comcast. The joint venture will include NBCU.

See, stories titled "Comcast and GE Announce Joint Venture for NBC Universal", "Comcast Offers Commitments to Regulators Regarding GE Joint Venture", and "Reaction to Proposed Comcast GE Transaction" in TLJ Daily E-Mail Alert No. 2,020, December 3, 2009.

These Congressional hearings provide a forum for proponents of the transactions to argue that their plans are not anti-competitive, for opponents to explain their objections, and for parties that seek to extract concessions during the antitrust merger review process to state their demands.

Nominally, antitrust regulators (which for this transaction include the Department of Justice's Antitrust Division and the Federal Communications Commission ) act independently of the Congress in passing on proposed mergers.

See, prepared testimony [16 pages in PDF] of Brian Roberts (Ch/CEO of Comcast) and Jeff Zucker (P/CEO of NBC Universal), prepared testimony [3 pages in PDF] of Thomas Hazlett (George Mason University School of Law), prepared testimony [7 pages in PDF] of Jean Prewitt (Independent Film & Television Alliance), prepared testimony [pages in PDF] of Mark Cooper (Consumer Federation of America), prepared testimony [13 pages in PDF] of Larry Cohen (President of the Communications Workers of America), prepared testimony [8 pages in PDF] of Andrew Schwartzman (Media Access Project), and prepared testimony [2 pages in PDF] of Marc Morial (National Urban League).

Roberts and Zucker wrote that "The new NBCU will benefit consumers and will encourage much-needed investment and innovation in the important media sector." They argued that "The proposed transaction is primarily a vertical combination of NBCU's content with Comcast's multiple distribution platforms. Antitrust law, competition experts, and the FCC have long recognized that vertical combinations can produce significant benefits. They also have found that vertical combinations with limited horizontal overlaps generally do not threaten competition."

Similarly, Hazlett wrote that "The merger is primarily a vertical combination where Comcast, a cable operator distributing video programming to millions of household subscribers, is acquiring ownership of additional programming assets. This does not lessen competition in any market, but allows the content distributor to achieve efficiencies by producing complementary products."

He continued that "There are special cases in which vertical integration can lead to anti-competitive foreclosure, but the evidence indicates that these special circumstances do not apply. Studies of vertical integration in cable generally confirm the baseline analysis: efficiencies typically result when firms elect to combine programming and distribution."

In contrast, the IFTA's Prewitt wrote that "what is good for Comcast and NBC is not good for the American public. This merger is a further step in the extensive drive toward vertical integration in the media industries that has already severely reduced the chances for independently sourced programming to reach the public. If allowed to go forward, the merger will give the American public far less choice in programming as more channels and distribution platforms are closed to independent content."

The CFA's Cooper argued that "Allowing the largest cable operator in history to acquire one of the nation’s premier video content producers will radically alter the structure of the video marketplace and result in higher prices and fewer choices for consumers. The merging parties are already among the dominant players in the current video market. This merger will give them the incentive and ability to not only preserve and exploit the worst aspects of the current market, but to extend them to the future market."

The CWA's Cohen argued that the proposed merger "will result in the loss of good jobs, the erosion of employee rights, and undermine living standards in the communications and media industries"

Schwartzman said that he opposes the merger because media concentration threatens democracy.

Morial wrote that the National Urban League is "withholding formal endorsement pending discussions with senior management relating to diversity programming, employment, and other issues at NBCU. But we do think that Comcast should be entitled to great respect in this process based on its past actions with the diversity community."

3/2. Microsoft filed a complaint [63 pages in PDF] on February 22, 2010, in the U.S. District Court (EDVa) against unnamed defendants alleged to be operators of a controlled network of computers -- a botnet named Waledac -- that is used to send spam e-mail messages.

The District Court issued a sealed ex parte temporary restraining order (TRO), that contains an order directed at non-party VeriSign regarding domain names used in controlling the botnet.

Microsoft's complaint alleges violation of the federal computer hacking statute, CAN-SPAM Act, ECPA, and other claims. It seeks monetary and injunctive relief against the defendants. However, Microsoft brought this action for the purpose of obtaining an ex parte sealed court order directed at registrar VeriSign.

The procedure in this case violates numerous fundamental notions of due process of law, including notice and opportunity for a hearing, adversarial proceedings, public proceedings, and the principle that criminal enforcement is a sovereign function. See, related story in this issue titled "Commentary: Judicial Procedure in the Microsoft Waledac Botnet Case".

Botnet is a slang term of recent origin derived from the words robot network. It is used to describe a collection of software robots that reside on a collection of compromised computers, almost always without the authority or knowledge of the owners or operators, that are controlled remotely for various nefarious purposes. The compromised computers are often referred to as zombies.

The purposes for forming botnets include sending spam, running denial of service attacks, committing click fraud, and infecting computers with spyware. Botnet based spam can be used for less harmful purposes, such as marketing, or for more harmful purposes, such as pump and dump securities fraud, theft of personal and financial information to commit further crimes, and various consumer fraud schemes. Also, Botnet operators sometimes lease spamming capacity to others.

Microsoft stated in a release that "we have executed a major botnet takedown". It continued that "One of the 10 largest botnets in the US and a major distributor of spam globally, Waledac is estimated to have infected hundreds of thousands of computers around the world and, prior to this action, was believed to have the capacity to send over 1.5 billion spam emails per day."

Microsoft added that the District Court "granted a temporary restraining order cutting off 277 Internet domains believed to be run by criminals as the Waledac bot".

Microsoft elaborated that this "has effectively shut down connections to the vast majority of Waledac-infected computers, and our goal is to make that disruption permanent. But the operation hasn’t cleaned the infected computers and is not a silver bullet for undoing all the damage we believe Waledac has caused. Although the zombies are now largely out of the bot-herders’ control, they are still infected with the original malware."

The complaint is 20 pages. Attached are a one page jury demand, and a 42 page appendix that contains a list of botnet domain names and related information.

The complaint contains eight counts:

1. unauthorized access to protected computer systems in violation of the Computer Fraud and Abuse Act, which is codified at 18 U.S.C. § 1030)
2. CAN-SPAM Act, which is codified at (15 U.S.C §§ 7701-7713)
3. Electronic Communications Privacy Act (ECPA) (18 U.S.C. § 2701)
4. false designation of origin under the Lanham Act, which is codified at 15 U.S.C. § 1125(a)
5. trademark dilution under the Lanham Act, which is codified at 15 U.S.C. § 1125(c)
6. common law trespass to chattels
7. unjust enrichment
8. conversion

The complaint states that the defendants control "273 Harmful Botnet Domains" listed in the appendix to the complaint.

The complaint lists six domain name registrars, each of which is also identified as a "Third party". These are Verisign, Inc., Xin Net Technology Corp., Xiamen Ename Network Technology Corp., China Springboard, Inc., Wild West Domains, Inc., and Beijing Innovative Linkage Technology Ltd.

The complaint states that the John Doe defendants "maintain computers and Internet websites and engage in other conduct availing themselves of the privilege of conducting business in Virginia", have "directed malicious computer code at the computers of individual users located in Virginia and the Eastern District of Virginia", and have committed other acts that confer authority of the U.S. District Court to exercise personal jurisdiction over them.

The complaint describes the nature and structure of the Waledac botnet. There are uninfected hosts, which are the recipients of spam, and targets for infection by the botnet controller.

There are spammer nodes, which are computers infected with the botnet controller's software, which are not directly accessible from the internet, and which are used to send out spam messages.

There are repeater nodes, which are computers directly accessible from the internet that have been compromised, and which are used for several purposes, including acting as domain name servers (DNS) which translate human readable domain names to their corresponding internet protocol (IP) addresses, relaying communications to obfuscate their true source, and serving as HTTP and SOCKS 5 servers.

Next up the chain of control, there are TSL servers, or reverse proxy servers. The complaint states that these "receive in-bound communications and then pass those on to additional servers. In the Waledac Botnet, the TSL Servers receive in-bound communications from the Repeater Nodes and then pass then to other servers behind the TSL Serves. The purpose of TSL Serves is to obfuscate details about the servers behind them, to prevent direct communications with those servers and evade investigation of those portions of the botnet."

At the top, there are the main command and control servers, which are "responsible for coordinating the Waledac Botnet on the whole and providing the most fundamental definitions, commands and instructions that determine how infected computers will operate and how different botnet components will interact with each other."

There are also as part of the botnet fast flux DNS servers that are "constantly changing the addressing of the domain names that are associated with the command and control and infrastructure components that make up the botnet". These obfuscate the source, location, owner and other attributes of compromised computers that are a part of the botnet by "regularly updating the root name servers for the various fast flux domains used by the Waledac Botnet". These fast flux DNS servers access a web portal to one of the domains' registrars updating the root name servers at the registrars. Moreover, they do this through the repeater nodes (discussed above) to hide their locations.

The complaint states that each of the domains listed in the appendix is one of these fast flux domains.

The complaint seeks judgment against the John Doe defendants. It seeks monetary damages, and injunctive relief. The complaint does not request declaratory or injunctive relief directed at Verisign or any other registrar.

Microsoft stated in its release that the District Court issued a sealed TRO affecting VeriSign. Microsoft stated that this is an order "severing the connection between the command and control centers of the botnet and most of its thousands of zombie computers around the world".

Microsoft added that this has "effectively shut down connections to the vast majority of Waledac-infected computers".

VeriSign had not released any public statement as of March 1.

Microsoft is represented in this action by the law firm of Orrick Herrington & Sutcliff. This case is Microsoft Corporation v. John Does 1-27, U.S. District Court for the Eastern District of Virginia, Alexandria Division, D.C. No. 1:10CV156(LMB/UFA). LMB is the initials of Judge Leonie Brinkima.

3/2. The procedure employed in the Microsoft Waledac botnet case is inconsistent with numerous fundamental notions of due process of law, including notice and opportunity for a hearing, adversarial proceedings, public proceedings, and the principle that criminal enforcement is a sovereign function.

See, related story in this issue titled "Microsoft Obtains Ex Parte TRO in Waledac Botnet Case"

Criminal Prosecution v. Civil Litigation. Most court proceeding fall clearly into one of two categories: civil litigation in which one or more named parties seek compensation for harm caused by one or more named parties, and criminal prosecution in which the government seeks to stop, punish and deter conduct that threatens the general public.

Microsoft filed an action that is styled as civil, and which nominally seeks civil remedies. Yet, this case contains many attributes of criminal prosecution.

Microsoft is even speaking like a prosecutor: it states in its release that "we are getting even more creative and aggressive in the fight against botnets and all forms of cybercrime".

Microsoft, as the provider of Hotmail, can claim that it is harmed by spam. But the same spam harms Google's GMail, Yahoo's Yahoo Mail, and the e-mail services provided by many other companies. It also harms all business and entities that provide e-mail services to their employees or other uses. It also harms companies that carry or transport e-mail. More significantly, it harms the owners of computers that have been compromised, and consumers whose in boxes are flooded with spam. And most importantly, it harms consumers who are victims of spam based identity theft and fraud.

Microsoft essentially is not seeking redress for private harm to Microsoft. It is a private party seeking to protect the general public. Protecting the public is a government function, not a Microsoft function.

While Microsoft has nominally sought damages, its real purpose in bringing this action is to sever certain IP communications within the botnet. Microsoft announced that the District Court issued a temporary restraining order (TRO) "cutting off 277 Internet domains". The power to cut off domains is the power to destroy a business. The power to initiate judicial proceedings to destroy is reserved to the government.

There are situations where the lines between civil and criminal procedure are blurred or broken. For example, the award of punitive damages in civil cases is intended to serve the purpose of punishing the defendant, which is function of criminal prosecution, not civil litigation. Similarly, legislatures may enact class action litigation statutes with the intent of protecting the general public, which is a state function, rather than providing compensation to private litigants. Also, state attorneys general sometimes outsource certain civil claims to private tort lawyers on contingency fee contracts; when these actions are of a punitive nature, they violate the principle that punishment is a criminal function, and the principle that punishment is a state function. However, in most of these situations, there have been government actions, such as legislative statutes or executive orders, that allow private parties to perform state or criminal functions.

In the present case, there has been no legislative or administration action that delegates state or criminal functions to Microsoft.

The Congress could enact a statute that provides for "cutting off ... Internet domains", and enumerates reasons for such action, such as a "botnet takedown". Such as statute could also authorize certain private trade groups, consortia, or companies to bring such an action, specify their requisite nexus and qualifications, and provide for their certification. But, the Congress has enacted no such statute.

It may be argued that the U.S. Attorneys Offices around the country, and the Department of Justice's (DOJ) Computer Crimes and Intellectual Property Section (CCIPS), as well as state and country prosecutors, lack the resources and expertise to put together and prosecute cases like this. It may be argued that this necessitates allowing private actors to act as attorneys general. On the other hand, the Congress could appropriate more funds for the DOJ, CCIPS, and the prosecutors, FBI agents, and experts who work these cases.

Microsoft comes to the court in this botnet case with a reputation for considerable expertise, integrity and public service. Moreover, the U.S. District Court for the Eastern District of Virginia, and Judge Brinkema, have much background and experience in cases involving the internet.

Nevertheless, the procedure followed in this case may be followed in other cases, across the many U.S. District Courts, and the multitude of state and county courts, to allow less worthy private litigants to take away domain names in the semblance of private attorneys general. Such litigants may come to court with claims unrelated to botnets or internet security. These may assert violation of laws related to copyright, trademark, or other claims.

Due Process of Law. In both criminal and civil proceeding the parties are entitled to a wide range of rights and procedures sometimes referred to as due process of law. These procedures have been developed over many centuries in Britain and America to provide fairness to the parties, discovery and use of evidence, decisions made according to law and based upon the facts, openness, and public understanding and respect for the judicial process.

Many of the key components of due process have been absent in this Microsoft botnet case.

Microsoft and the District Court have taken something away -- domains. The most fundamental component of due process is that before the government takes something away, there must be a trial. There has been no trial.

Civil procedure allows for pretrial injunctive relief, pending trial and judgment, under special circumstances. Nevertheless, notice and hearing are essential due process requirements for issuance of such a preliminary injunction. There has been no notice. The order in this case was obtained ex parte. A hearing is useless to a party without notice.

Civil procedure does allow, in even more extraordinary circumstances, the issuance of injunctive relief without notice and hearing. Such order, known usually as a TRO, still requires immediate notice of the TRO to the affected parties, and the scheduling of a prompt hearing. The TRO in this case is under seal, which is inconsistent with usual TRO procedure.

Also, the concept of a TRO is that it is of only very brief duration, and in contemplation of further court proceedings. Yet, Microsoft is already speaking of this case in the past tense. It states in its release that "we have executed a major botnet takedown". The TRO thus bears some attributes of a final judgment.

There is also the matter that civil litigation determines the rights and obligations of the parties to the litigation. Notably, in the present case, Microsoft has filed a complaint naming as defendants one set of parties, but obtained relief directed at another entity -- a non-party.

There is also the matter that due process requires that judicial processes be public. Communications to the court are via written filings which are accessible to the public. Court hearings are in a public building with space to accommodate the public. The court's decisions, and its explanations, are reduced to writing, and made available to the public. None of these openness requirements has yet been followed in this case.

This case may come to closure without a single opinion being published in the Federal Supplement. The record of this case may exist in the press releases generated by Microsoft's publicity department.

Finally, the process followed in this case is inconsistent with the notion that the judicial process is adversarial. That is, opposing sides present conflicting evidence and legal arguments, and the impartial jury and court makes decisions based upon this adversarial display.

The botnet operators in the present case may have no interest in availing themselves of the protections afforded by due process of law. And, no harm to them may have resulted by not affording them more procedure. Moreover, Microsoft may have had good reasons for proceeding in a fast and secret fashion.

Yet, the procedure followed in this case may be followed in other cases in which defendants would wish to avail themselves of due process of law, and in which there is less basis for disregarding the public's interest in open proceedings.

2/24. The Department of Justice's (DOJ) Antitrust Division announced in a release that it "will not challenge a proposal by MyWire Inc. to form the Global News Service, an online subscription news aggregation service".

The DOJ sent a business review letter to MyWire's counsel, Charles Biggio, of the law firm of Wilson Sonsini Goodrich & Rosati, explaining this determination. It begins, "You have requested a statement of the Antitrust Division's current enforcement intention with respect to MyWire's proposal to develop and operate an Internet media subscription news aggregation service, the Global News Service (``GNS´´). For the reasons discussed below, the Division has no present intention to challenge the development or operation of GNS."

Christine Varney, Assistant Attorney General in charge of the Antitrust Division, stated in the DOJ release that "Global News Service has the potential to benefit consumers by allowing them to access a broad network of related content without having to conduct their own online searches ... The service may also reduce publishers' content distribution costs."

Summary of MyWire Proposal. The DOJ then summarized MyWire's description of its proposed service. "MyWire is a private company and is not currently owned by any content providers. MyWire syndicates Internet content on various subjects from hundreds of publishers around the world. MyWire has created proprietary Internet technology that is designed to organize and distribute free and fee-based digital content on a wide variety of topics."

"MyWire would use this technology to launch GNS. GNS would enable consumers to browse an interconnected network of participating Internet publishers' content", including content from newspapers, magazines, and internet television sites."

"MyWire intends to develop GNS by entering into one-year bilateral non-exclusive content licensing agreements with Internet publishers. Under these agreements, GNS would provide to publishers ``related-item´´ content blocks that the publishers would display next to their content. The blocks would contain hyperlinked abstracts of content from other participating publishers' websites. By clicking these hyperlinks, consumers would be directed to the content owner's website where they would be able to view the full content to which an abstract refers. GNS would use an algorithm incorporating various factors, including keywords, popularity and timeliness, to determine what content is most closely related and therefore most useful to reference as a related item. GNS alone would determine how this algorithm functions, both initially and in the future."

The letter goes on to describe the scheme for compensation among publishers, the GNS subscription fee, setting this fee, and the fee sharing arrangement. The letter discusses free content.

It also states that "GNS will manage subscriptions, bill consumers, track content usage and publishers' earnings, and distribute revenue to publishers. The MyWire publisher agreements would be nonexclusive, allowing publishers to join other Internet content aggregation services, including those services that might compete directly with GNS."

Moreover, MyWire would not restrict the prices that participating publishers charged for access to their websites or access to content not accessed through the GNS system.

The letter states that MyWire will not create content.

Finally, the letter states that "MyWire represents that it will institute and maintain firewalls that would prevent publishers from accessing all other publisher's competitively sensitive information through MyWire or GNS."

DOJ Legal Analysis. The DOJ letter reasons that "MyWire plans to enter into vertical agreements with participating Internet publishers relating to content access and distribution and the operation of and participation in GNS. MyWire does not compete with the publishers, nor are the agreements between or among competing publishers."

It continues that "The agreements do not restrict prices, except for one ancillary restriction necessary to offer the GNS service: each publisher would be barred from distributing outside the GNS system for free any part of its own content that it contributed to GNS on a fee basis. The agreements would not prevent Internet content aggregators that compete with GNS from recruiting publishers that participate in GNS because the MyWire agreements are non-exclusive."

The letter adds that GNS may benefit consumers and publishers.

The letter concludes that the DOJ "has no present intention to challenge the development or operation of GNS". However, the letter adds that the DOJ "reserves the right to bring an enforcement action".

The House will meet at 10:00 AM for legislative business. It will consider non-technology related items. See, Rep. Hoyer's schedule for week of March 1.

8:30 AM - 3:30 PM. Day one of a two day event hosted by the Software and Information Industry Association (SIIA) titled "Ed Tech Government Forum". See, event web site. Location: Hyatt Regency Capitol Hill, 400 New Jersey Ave.,  NW.

9:00 AM - 2:00 PM. The National Telecommunications and Information Administration's (NTIA) Commerce Spectrum Management Advisory Committee will meet. See, notice in the Federal Register, February 18, 2010, Vol. 75, No. 32, at Page 7234. Location: Department of Commerce, Room 4830, 1401 Constitution Ave., NW.

10:00 AM. The House Commerce Committee's (HCC) Subcommittee on Communications, Technology and the Internet will hold a hearing titled "'Hearing On “Oversight Of The American Recovery And Reinvestment Act: Broadband, Part 3". See, notice. Location: Room 2123, Rayburn Building.

10:00 AM. The House Appropriations Committee's (HAC) Subcommittee on Homeland Security will hold a hearing titled "DHS Intelligence Programs and the Effectiveness of State and local Fusion Centers". Location: Room 2358A, Rayburn Building.

10:00 AM - 12:00 NOON. The House Science Committee (HSC) will hold a hearing titled "Reform in K-12 STEM Education". The HSC will webcast this event. Location: Room 2318, Rayburn Building.

10:00 AM. The Senate Judiciary Committee (SJC) will hold an executive business meeting. The agenda again lists consideration of the nomination of Dawn Johnsen to be Assistant Attorney General in charge of the Office of Legal Counsel (OLC). The agenda also includes consideration of Lucy Koh to be a Judge of the U.S. District Court for the Northern District of California. See, story titled "Obama Picks Lucy Koh to Replace Ron Whyte on District Court" in TLJ Daily E-Mail Alert No. 2,038, January 25, 2010. The agenda also includes consideration of several other judicial nominees: Gloria Navarro (USDC/DNev), Audrey Fleissig (USDC/EDMO), Jon Deguilio (USDC/NDInd), Tanya Pratt (USDC/SDInd), and Jane Stinson (USDC/SDInd). The SJC rarely follows its published agendas. The SJC will webcast this event. See, notice. Location: Room 226, Dirksen Building.

10:00 AM. The Senate Appropriations Committee (SAC) will hold a hearing titled "Funding and Oversight for the Department of Commerce". The witnesses will include Gary Locke (Secretary of Commerce) and Todd Zinser (Inspector General). Location: Room 192, Dirksen Building.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Siemans AG v. Seagate Technology, App. Ct. No. 2009-1382, an appeal from the U.S. District Court (CDCal) in a patent infringement case involving technology for reading data on hard disk drives. Location: Courtroom 402, 717 Madison Place, NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Lincoln National Life Insurance Company v. Transamerica Life Insurance Company, App. Ct. No. 2009-1403, a patent infringement case regarding a computer based method for providing retirement benefits. Location: Courtroom 201, 717 Madison Place, NW.

10:30 AM - 5:00 PM. The Federal Communications Commission (FCC) will host a workshop titled "Serving the Public Interest in the Digital Era". The topics on the agenda include the public interest requirements for commercial media and telecommunications companies, local commercial broadcast TV and radio news and information, and "impact of media convergence and the emergence of the Internet, mobile technologies, and digital media on FCC media policy". See, notice. Location: FCC, Commission Meeting Room.

12:00 NOON - 2:00 PM. The DC Bar Association will host a panel discussion titled "Cloud Computing: A Truly New Service or Just a New Trendy Name?". The speakers will be Bruce Andrews (General Counsel, Senate Commerce Committee), Jeffery Goldthorp (FCC), Debra Diener (IRS), Lew Oleinick (Defense Logistics Agency), John Nagengast (AT&T), Stephen Schmidt (Amazon Web Services), and Carolyn Brandon (Georgetown University business school). The price to attend ranges from free to $30. Most DC Bar events are not open to the public. See, notice. For more information, call 202-626-3463. Location: DC Bar Conference Center, 1101 K St., NW.

2:00 PM. The House Appropriations Committee's (HAC) Subcommittee on Commerce, Justice, State and Related Agencies will hold a hearing titled "FY2011 Budget for the Department of Commerce". The HAC will webcast this event. Location: Room 2359, Rayburn Building.

2:30 PM. The Federal Trade Commission's (FTC) Bureau of Economics (BOE) will host a seminar presented by Scott Hemphill (Columbia University law school) and Bhaven Sampat (Columbia). Hemphill has published papers on antitrust, drug patent settlements), and network neutrality. For more information, contact Loren Smith lsmith2 at ftc dot gov or Tammy John tjohn at ftc dot gov. Location: FTC, Conference Center, 601 New Jersey Ave., NW.

6:00 - 8:00 PM. The Federal Communications Bar Association (FCBA) Wireline Committee will host an event titled "Special Access: Historical Perspective and Current Issues". The price to attend ranges from $95 to $150. This event qualifies for continuing legal education credits. Registrations and cancellations are due by 5:00 PM on March 2. Location: 6th floor, Sidley Austin, 1501 K St., NW.

Deadline to submit to the Federal Communications Commission (FCC) statements in support of or in opposition to the petition for rulemaking [22 pages in PDF] submitted by the California Public Utilities Commission (CPUC) regarding direct access to the FCC's Network Outage Reporting System (NORS). See, notice in the Federal Register, February 9, 2010, Vol. 75, No. 26, at Pages 6339-6340. This proceeding is RM-11588 and ET Docket No. 04-35.

Rep. Hoyer's schedule for week of March 1 states that "no votes are expected in the House".

8:30 AM - 12:15 PM. The Information Technology Association of America (ITIF), University of Colorado's Silicon Flatirons, and Public Knowledge (PK) will host a half day conference titled "An FCC for the Internet Age". Location: Washington Court Hotel, 525 New Jersey Ave., NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in WNS Holdings, LLC v. United Parcel Service Service, Inc., App. Ct. No. 2009-1498, an appeal from the U.S. District Court (WDWisc). Location: Courtroom 203, 717 Madison Place, NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in ClearPlay, Inc. v. Nissim Corp., App. Ct. No. 2009-1471. Location: Courtroom 201, 717 Madison Place, NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Fenner Investments Ltd. v. Microsoft Corp., App. Ct. No. 2009-1496, an appeal from the U.S. District Court (EDTex) in a patent infringement case involving joystick technology. Location: Courtroom 402, 717 Madison Place, NW.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) [107 pages in PDF] that proposes to regulate the network management practices of broadband internet access service providers. The FCC titles this proceeding "In the Matter of Preserving the Open Internet Broadband Industry Practices". This NPRM is FCC 09-93 in GN Docket No. 09-191 and WC Docket No. 07-52. See, notice in the Federal Register, November 30, 2009, Vol. 74, No. 228, at Pages 62637-62662. See also, stories titled "FCC Adopts Internet Regulation NPRM", "Text of Proposed Internet Regulation Rules", "Statutory Authority and Ancillary Jurisdiction", "More Praise for the FCC's NPRM", "More Criticism of the FCC's NPRM", and "Sen. McCain Introduces Bill to Block FCC Regulation of Internet or IP-Enabled Services" in TLJ Daily E-Mail Alert No. 2,008, October 23, 2009.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) regarding its e-rate program, and the "Protecting Children in the 21st Century Act". See, notice in the Federal Register, January 19, 2010, Vol. 75, No. 11, at Pages 2836-2843, and story titled "FCC Adopts E-Rate NPRM" in TLJ Daily E-Mail Alert No. 2,011, November 9, 2009. The FCC adopted this NPRM on November 4, 2009, and released the text on November 5, 2009. It is FCC 09-96 in CC Docket No. 02-6.

8:00 AM - 5:15 PM. Day one of a two day event hosted by the Department of Health and Human Services titled "Workshop on the HIPAA Privacy Rule's De-Identification Standard". See, notice in the Federal Register, February 24, 2010, Vol. 75, No. 36, at Pages 8363-8364. Location: Washington Marriott at Metro Center, 775 12th St., NW.

8:30 AM - 5:30 PM. Day one of a two day meeting of the National Science Foundation's (NSF) Committee on Equal Opportunities in Science and Engineering (CEOSE). See, notice in the Federal Register, February 5, 2010, Vol. 75, No. 24, at Page 6063. Location: NSF, 4201 Wilson Boulevard, Arlington, VA.

9:00 AM. The U.S. District Court (ECVa) will hold a hearing in Microsoft v. John Does, the Waledac botnet case. Location: Bryan Courthouse, 401 Courthouse Square, Alexandria, VA.

12:15 - 1:30 PM. The Federal Communications Commission (FCC) will hold a brown bag lunch titled "Meet the FCC's Technologists". The speakers will be Julius Knapp (Chief of the FCC's Office of Engineering and Technology), Jon Peha (Chief Technologist in the FCC's Office of Strategic Planning), and Stagg Newman (Chief Technologist on the FCC's National Broadband Task Force). The Federal Communications Bar Association (FCBA) states that this is an FCBA event. For more information, contact Tami Smith at tesmith at sidley dot com. Location: Sidley Austin, 1501 K St., NW.

6:00 - 8:15 PM. The DC Bar Association will host a program titled "Fraud in Trademark Cases: Impact of the Federal Circuit's New Standard". The speakers will be Cheryl Black (Goodman Allen & Filetti), Michael Clayton (Morgan Lewis & Bockius), and Gerard Rogers (USPTO's Trademark Trial & Appeal Board). The price to attend ranges from $89 to $129. This event qualifies for continuing legal education (CLE) credits. Most DC Bar events are not open to the public. See, notice. For more information, call 202-626-3488. Location: DC Bar Conference Center, 1101 K St., NW.

1:15 - 6:15 PM. Day one of a two day event hosted by the DC Bar Association titled "2010 Judicial and Bar Conference: Survival Strategies for Modern Legal Times". See, conference web site. Location: Ronald Reagan Building, 1300 Pennsylvania Ave., NW.

EXTENDED FROM FEBRUARY 8. Extended deadline to submit comments to the U.S. Patent and Trademark Office (USPTO) regarding "methods that may be employed by applicants and the USPTO to enhance the quality of issued patents, to identify appropriate indicia of quality, and to establish metrics for the measurement of the indicia". See, notice of extension in the Federal Register, February 1, 2010, Vol. 75, No. 20, at Pages 5040-5041.

8:30 AM - 2:00 PM. Day two of a two day meeting of the National Science Foundation's (NSF) Committee on Equal Opportunities in Science and Engineering (CEOSE). See, notice in the Federal Register, February 5, 2010, Vol. 75, No. 24, at Page 6063. Location: NSF, 4201 Wilson Boulevard, Arlington, VA.

8:30 - 11:30 AM. Day two of a two day event hosted by the Department of Health and Human Services titled "Workshop on the HIPAA Privacy Rule's De-Identification Standard". See, notice in the Federal Register, February 24, 2010, Vol. 75, No. 36, at Pages 8363-8364. Location: Washington Marriott at Metro Center, 775 12th St.,  NW.

9:00 AM - 12:15 PM. The Federal Communications Commission (FCC) and the Knight Foundation (KF) will host an event titled "Digital Inclusion Summit: Working Together to Expand Opportunity Through Universal Access". The speakers will include FCC Chairman Julius Genachowski, FCC Commissioners Michael Copps, FCC Commissioner Mignon Clyburn and FCC Commissioner Meredith Baker. This event is free and open to the public. See, FCC notice and KF registration page. Location: Newseum, 555 Pennsylvania Ave., NW.

9:30 AM - 5:45 PM. Day two of a two day event hosted by the DC Bar Association titled "2010 Judicial and Bar Conference: Survival Strategies for Modern Legal Times". See, conference web site. At 2:30 - 5:45 PM, there will be a program, in two parts, titled "Emerging E-Communications Issues: Before, During, and After Trial". The price to attend is $55 for each part. Most DC Bar events are not open to the public. See, notice and notice. For more information, contact Verniesa Allen at 202-626-3439. Location: Location: Ronald Reagan Building, 1300 Pennsylvania Ave., NW.

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