8/1. The Federal Communications Commission (FCC) released an order [120 pages in PDF] that amends its rules governing its MVPD program carriage complaint process. The new rules provide for the issuance of a preliminary standstill order. Cable companies oppose this.

This item contains a Second Report and Order in MB Docket No. 07-42 and another Notice of Proposed Rulemaking (NPRM) in a new proceeding, MB Docket No. 11-131.

In 1992 the Congress enacted the "Cable Television Consumer Protection and Competition Act of 1992", Public Law No. 102-385. It directs the FCC to write program carriage rules. The FCC first enacted program carriage rules in 1993.

47 U.S.C. § 536, which was enacted as part of the 1992 Act, provides, among other things, that the FCC shall write rules that are designed to prevent a multichannel video programming distributor (MVPD), which includes cable companies, from "engaging in conduct the effect of which is to unreasonably restrain the ability of an unaffiliated video programming vendor to compete fairly".

It also requires the FCC to write rules tht prohibit "coercing a video programming vendor to provide, and from retaliating against such a vendor for failing to provide, exclusive rights against other multichannel video programming distributors as a condition of carriage on a system".

Section 536 also requires the FCC write procedural rules for an administrative complaint process. "Such regulations shall ...provide for expedited review of any complaints made by a video programming vendor pursuant to this section" and "provide for appropriate penalties and remedies for violations of this subsection, including carriage".

The statute does not provide for preliminary relief, or temporary injunctive relief prior to the issuance of a final order on a complaint.

Also, 47 U.S.C. § 544 provides that "Any Federal agency, State, or franchising authority may not impose requirements regarding the provision or content of cable services, except as expressly provided in this subchapter."

One key component of the just adopted rules changes is the inclusion of a standstill provision. The actual rules are in Appendix B, beginning at page 58.

The new rules provide, among other things, that "A program carriage complainant seeking renewal of an existing programming contract may file a petition along with its complaint requesting a temporary standstill of the price, terms, and other conditions of the existing programming contract pending resolution of the complaint."

The new rules also set out the findings that the FCC's Media Bureau (MB) or FCC administrative law judge (ALJ) must make before granting such an order. It mirrors the equitable principles that are prerequisite for the issuance of a pre-trial injunction.

FCC Commissioner Michael Copps wrote in his statement that "Video distributors are now more likely to be producers themselves, often with far greater leverage and new incentives to favor their own content over that of independent producers. Modernizing these rules is essential to ensure that consumers have the ability to view a variety of diverse programming at the lowest possible cost and hopefully to foster more independent production."

He added that the standstill procedure responds to "programming vendors' concerns of retaliatory action by an MVPD".

Over four years ago the FCC released a NPRM. (This FCC adopted this item on March 2, 2007, but did not release it until June 15, 2007. It is FCC 07-18 in MB Docket No. 07-42.) The just released order asserts Section 536 and that NPRM as the legal basis for issuing these new rules. However, the just released order contains new rules that were not proposed in that NPRM. Hence, Commissioner Robert McDowell and cable companies have cried foul.

McDowell wrote in his separate statement that "Regrettably, the majority has adopted rules requiring multichannel video programming distributors (``MVPDs´´) to continue to carry programming on pre-existing terms and conditions, also known as ``standstill´´ arrangements. Pursuant to these rules, an agreement will be extended until a program carriage dispute is resolved. The Commission, however, did not provide adequate notice and opportunity for comment under the Administrative Procedure Act (``APA´´). An analysis of a possible standstill framework would benefit significantly from further debate. Accordingly, I respectfully dissent from this portion of the Order."

He continued that "The APA requires that a notice contain ``either the terms or substance of the proposed rule or a description of the subjects and issues involved.´´ Here, as evidence of notice, the majority points to one sentence in a 2007 notice requesting comment on whether to adopt rules ``to protect programmers from potential retaliation if they file a complaint.´´ The majority asserts that the standstill rules are a ``logical outgrowth´´ of this proposal. I disagree." (Footnotes omitted.)

Michael Powell (at left), head of the National Cable and Telecommunications Association (NCTA), stated in a release that "The FCC's program carriage decision represents an unfortunate trifecta: a flawed process that the FCC stubbornly refused to correct, substantive policy discussions that show little regard for the limits of agency authority or constitutional rights, and a disturbing lack of appreciation of the potential impact of government intervention on consumers or the marketplace. In other words, we are profoundly disappointed not only in what the FCC did but how they did it. Regrettably, we must now explore other avenues for redress."

For more detailed statements of the legal objections to the FCC's standstill procedure, see Comcast's letter to the FCC of July 25, 2011, and Rick Chessen's (NCTA) letter to FCC of July 6, 2011.

7/29. President Obama nominated Michael Horowitz to be Inspector General of the Department of Justice (DOJ). See, White House news office release and release.

If the Congress were to enact HR 1981 [LOC | WW], the data retention bill marked up by the House Judiciary Committee (HJC) on July 27 and 28, 2011, and it were to exceed or violate its authority under this act, or any other surveillance statute, then the only entity to investigate and disclose such conduct might be DOJ's IG.

The DOJ/OIG under the previous IG, Glenn Fine, did investigate and disclose rampant abuse of surveillance powers by the DOJ and its Federal Bureau of Investigation (FBI). See,

• January 20, 2010 redacted report [PDF] titled "A Review of the Federal Bureau of Investigation's Use of Exigent Letters and Other Informal Requests for Telephone Records", and story titled "Another DOJ Inspector General Report Finds FBI Misconduct in Obtaining Phone Records" in TLJ Daily E-Mail Alert No. 2,037, January 20, 2010.
• March 13, 2008, report [PDF] titled "A Review of the FBI's Use of National Security Letters: Assessment of Corrective Actions and Examination of NSL Usage in 2006", and story titled "DOJ Inspector General Releases Second Report on FBI Misuse of National Security Letters" in TLJ Daily E-Mail Alert No. 1,730, March 12, 2008.
• March 9, 2007, report [PDF] titled "A Review of the Federal Bureau of Investigation's Use of National Security Letters", and story titled "DOJ IG Releases Reports on Use of NSLs and Section 215 Authority" in TLJ Daily E-Mail Alert No. 1,551, March 13, 2007.

These investigations and reports occurred during the tenure of the former IG, Glenn Fine. He left the DOJ in January of this year. See, story titled "Inspector General Fine to Leave DOJ" in TLJ Daily E-Mail Alert No. 2,166, December 2, 2011.

Moreover, Roslyn Mazer, who worked on these investigations, left the DOJ in 2009. See, story titled "Obama Picks Mazer for DHS Inspector General" in TLJ Daily E-Mail Alert No. 2,264, July 20, 2011.

Valerie Caproni, the FBI's General Counsel since 2003, who oversaw the FBI's statutory violations, remains in office, and has not been indicted.

Michael Horowitz works in the Washington DC office of the law firm of Cadwalader Wickersham & Taft.

His Cadwalder biography suggests proximity to the DOJ and its personnel. It states that he handles matters before the DOJ, including DOJ Foreign Corrupt Practices Act (FCPA) and antitrust criminal investigations. Also, he was for a long time employed by the DOJ. He was an Assistant U.S. Attorney in the Southern District of New York from 1991 through 1999. He was then a Deputy Assistant Attorney General and Chief of Staff in the DOJ's Criminal Division.

Federal Election Commission (FEC) records show that on June 30, 2010, Horowitz gave $1,000 to the election campaign of Sen. Michael Bennet (D-CO).

7/27. The U.S. Court of Appeals (1stCir) issued its opinion in Haggins v. Verizon NE, affirming the District Court's dismissal of an employee complaint against Verizon New England alleging violation of state privacy law in connection with location surveillance of employees. However, the outcome turned on preemption under the federal Labor Management Relations Act, rather than the merits of the claim.

Verizon New England, Inc. (Verizon NE) required its field technicians to carry company issued cell phones during work that enabled Verizon NE to conduct location surveillance of these employees.

Robert Haggins and other Verizon employees filed a complaint in state court in Massachusetts, which Verizon removed to the U.S. District Court (DMass), asserting diversity jurisdiction.

Haggins and the others alleged two state law claims: (1) violation of their privacy rights under Article 14 of the Declaration of Rights in the Massachusetts Constitution and Mass. Gen. Laws ch. 214, § 1B, and (2) breach of rights as third party beneficiaries under a contract between Verizon Wireless and Verizon NE.

The Massachusetts statute provides that "A person shall have a right against unreasonable, substantial or serious interference with his privacy." The Massachusetts Constitution provides that "Every subject has a right to be secure from all unreasonable searches, and seizures, of his person, his houses, his papers, and all his possessions."

Haggins and the other plaintiffs are also union members. There is a collective bargaining agreement between Verizon NE and this union.

This District Court held that § 301 of the Labor Management Relations Act (LMRA), which is codified at 29 U.S.C. § 185(a), preempts the plaintiffs' claims. It dismissed.

Haggins brought the present appeal. The Court of Appeals affirmed. It did not reach the merits of the privacy claim.

This case is Robert Haggins v. Verizon New England, Inc., U.S. Court of Appeals for the 1st Circuit, App. Ct. No.10-2196, an appeal from the U.S. District Court for the District of Massachusetts, Judge Michael Ponsor presiding. Judge Lynch wrote the opinion of the Court of Appeals, in which Judges Boudin and Howard joined.

The House will meet at 10:00 AM. See, Rep. Cantor's schedule.

The Senate will meet at 10:30 AM.

10:00 AM. Day three of a three day meeting of the House Judiciary Committee (HJC) to mark up bills. The remaining agenda items include HR 83 [LOC | WW], the "Bullying Prevention and Intervention Act of 2011". See, manager's amendment [5 pages in PDF], and story titled "House Judiciary Committee to Mark Up Data Retention and Bullying Bills" in TLJ Daily E-Mail Alert No. 2,267, July 23, 2011. See, notice. The HJC will webcast this event. Location: Room 2141, Rayburn Building.

TIME? Gary Locke will take the oath of office as Ambassador to the People's Republic of China. Closed. Location?

Deadline to submit comments to the National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) regarding its draft SP 800-90 A [135 pages in PDF] titled "Recommendation for Random Number Generation Using Deterministic Random Bit Generators".

Deadline to submit comments to the National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) regarding its draft NIST IR-7802 [25 pages in PDF] titled "Trust Model for Security Automation Data 1.0".

Deadline to submit comments to the National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) regarding its draft SP 800-126 Rev. 2 [51 pages in PDF] titled "The Technical Specification for the Security Content Automation Protocol (SCAP): SCAP Version 1.2".

Deadline for the federal government to raise the limit on federal borrowing.

10:00 AM. The House Committee on Foreign Affairs will hold a hearing titled "Why Taiwan Matters". The witnesses will be Kurt Campbell (Assistant Secretary of State for East Asian and Pacific Affairs) and Michael Schiffer (Deputy Assistant Secretary of Defense for East Asia). See, notice. Location: Room 2172, Rayburn Building.

10:30 AM. Federal Communications Commission (FCC) Chairman Julius Genachowski will give a speech at an event for the release of a report titled "Measuring Broadband America". See, FCC notice. Location: Best Buy, 3100 14th St., NW.

2:30 PM. The Senate Intelligence Committee (SIC) will hold a closed hearing. See, notice. Location: Room 219, Hart Building.

9:00 AM. The Department of Commerce's (DOC) Bureau of Industry and Security's (BIS) Materials Processing Equipment Technical Advisory Committee (MPETAC) will hold a partially closed meeting. See, notice in the Federal Register Vol. 76, No. 138, Tuesday, July 19, 2011, at Pages 42678-42679. Location: DOC, Hoover Building, Room 3884,14th Street between Pennsylvania and Constitution Aves., NW.

10:00 AM. The Senate Judiciary Committee (SJC) will hold a hearing titled "Cybercrime: Updating the Computer Fraud and Abuse Act to Protect Cyberspace and Combat Emerging Threats". The witnesses will be James Baker (DOJ's Associate Deputy Attorney General) and Pablo Martinez (U.S. Secret Service). See, notice. The SJC will webcast this event. Location Room 226, Dirksen Building.

10:00 AM - 12:00 NOON. The House Science Committee (HSC) will hold a hearing titled "Impacts of the LightSquared Network on Federal Science Activities". See, notice. Location: Room 2318, Rayburn Building.

10:00 AM - 12:00 NOON. The House Intelligence Committee (HIC) will hold a closed hearing titled "Ongoing Intelligence Activities". See, notice. Location: Room HVC-304, Capitol Building.

10:00 AM. The Senate Judiciary Committee (SJC) will hold an executive business meeting. The agenda again includes consideration of Steve Six (to be a Judge of the U.S. Court of Appeals for the 10th Circuit) and Morgan Christen (U.S. Court of Appeals for the 9th Circuit), and four District Court nominees: Yvonne Rogers (USDC/NDCal), Richard Andrews (USDC/DDel), Scott Skavdahl (USDC/DWyo), and Sharon Gleason (USDC/DAk). The SJC will webcast this event. See, notice. Location: Room 226, Dirksen Building.

2:30 PM. The Senate Intelligence Committee (SIC) will hold a closed hearing. See, notice. Location: Room 219, Hart Building.

EXTENDED FROM JULY 5. Extended deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Notice of Inquiry (NOI) [46 pages in PDF] regarding how its rules and policies could be modified to provide greater economic, market entry, communication adoption opportunities, and incentives for Native Nations. This notice is FCC 11-30 in CG Docket No. 11-41. The FCC adopted it on March 3, 2011, and released the text on March 4, 2011. See, notice in the Federal Register, April 5, 2011, Vol. 76, No. 65, at Pages 18759-18761. See also, extension notice (DA 11-873).

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response its 3rd Further Notice of Proposed Rulemaking (NPRM) [110 pages in PDF] regarding extensive revisions to its Part 11 rules governing the Emergency Alert System (EAS). The FCC adopted this NPRM on May 25, 2011, and released the text on May 26, 2011. It is FCC 11-82 in EB Docket No. 04-296. See, notice in the Federal Register, Vol. 76, No. 118, Monday, June 20, 2011, at Pages 35810-35831.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Public Notice regarding whether certain docketed FCC proceedings should be terminated as dormant. See, June 3, 2011, Public Notice (DA 11-992 in CG Docket No. 11-99), and notice in the Federal Register, Vol. 76, No. 118, Monday, June 20, 2011, at Pages 35892-35893.

10:00 AM. The Senate Finance Committee (SFC) will hold a hearing on the nominations of Michael Punke (to be Deputy U.S. Trade Representative), Paul Piquado (to be Assistant Secretary of Commerce), and David Johanson (to be a member of the U.S. International Trade Commission). See, notice. Location: Room 215, Dirksen Building.

EXTENDED FROM JULY 8. Deadline to submit comments to the Federal Trade Commission (FTC) in connection with June 21 event titled "Patent Standards Workshop". See, notice in the Federal Register, Vol. 76, No. 93, Friday, May 13, 2011, at Pages 28036-28038, and FTC release of May 9, 2011. See also, story titled "FTC to Hold Workshop on Standard Setting and Patents" in TLJ Daily E-Mail Alert No. 2,242, May 16, 2011. See, FTC's June 29, 2011, extension notice.

The House will be in recess until Wednesday, September 7.

EXTENDED TO AUGUST 15. Deadline to submit comments to the Federal Trade Commission (FTC) in response to its notice in the Federal Register regarding the proposed self-regulatory guidelines submitted to the FTC by Aristotle International, Inc. under the safe harbor provision of the Children's Online Privacy Protection Act (COPPA) Rule. See, Federal Register, Vol. 76, No. 123, Monday, June 27, 2011, at Pages 37290-37291. See, notice of extension.

7/29. The U.S. District Court (SDNY) sentenced Donald Longueuil to serve 30 months in prison following his previous plea of guilty to securities fraud, conspiracy to commit securities fraud and wire fraud, in connection with his participation in a "conspiracy to obtain Inside Information, including detailed financial earnings, about numerous public companies", including Marvell Technology Group, Ltd., NVIDIA Corporation, Fairchild Semiconductor Corporation, Advanced Micro Devices, Inc., Actel Corporation, and Cypress Semiconductor. The U.S. Attorneys Office for the Southern District of New York added in its release that Longueuil "obtained Inside Information -- specifically the nonpublic financial quarterly earnings of Marvell ...and caused the hedge fund where he worked to execute trades in Marvell".

7/28. A trial jury of the U.S. District Court (NDGa) returned a verdict of guilty against Charles Ndhlovu on one count of trafficking in counterfeit labels and three counts of criminal copyright infringement. in connection with his participation in a counterfeit DVD and CD enterprise. See, Department of Justice (DOJ) release. Criminal copyright infringement is codified at 17 U.S.C. § 506 and 18 U.S.C. § 2319. Trafficking in counterfeit labels is codified at 18 U.S.C. § 2318.

7/28. The U.S. Court of Appeals (8thCir) issued its opinion in U.S. v. Teague affirming the judgment of conviction of the U.S. District Court (SDIowa) for violation of 18 U.S.C. § 1030. The defendant, an employee of a contractor of the Department of Education (DOE) who had privileged access to the National Student Loan Data System (NSLDS), accessed without authority, the student loan records of President Obama. This case is U.S. v. Sandra Lynn Teague, U.S. Court of Appeals for the 8th Circuit, App. Ct. No. 11-1214, an appeal from the U.S. District Court for the Southern District of Iowa. Judge Bye wrote the opinion of the Court of Appeals, in which Judges Melloy and Laurie Camp (USDC/DNeb sitting by designation) joined.

7/28. Jasper Knabb, former CEO of Pegasus Wireless Corporation, pled guilty in U.S. District Court (NDCal) to conspiracy to commit securities fraud, securities fraud, and maintaining false books and records. The U.S. Attorneys Office for the Northern District of California stated in a release that "he created thirty-one fake promissory notes and other documents representing that Pegasus had outstanding debt. Knabb had Pegasus issue shares to satisfy the debt and then had those shares, or assets from their sale, funneled to himself, family, friends, and associates. Between May 2005 and January 2008, Knabb caused Pegasus to issue more than 490 million shares to satisfy bogus debt." See also, Securities and Exchange Commission's (SEC) 2009 civil complaint against Knabb.

7/22. A grand jury of the U.S. District Court (CDCal) returned a ten count indictment that charges Renjie Huang and Yong Xu with trafficking in counterfeit devices and using counterfeit access devices in connection with their "role in a retail theft ring that used counterfeit credit cards to buy high-end electronics from Wal-Mart stores throughout the Los Angeles area". The U.S. Attorneys Office for the Central District of California added in its release that the two defendants, who were arrested on July 22, "used counterfeit credits cards produced in China, along with stolen credit card information, to purchase expensive high-end electronics from Wal-Mart stores throughout Southern California. The electronics included iPods, laptop computers, cameras and Nintendo Gameboys". See, 18 U.S.C. S 1029, regarding "Fraud and related activity in connection with access devices".

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