8/22. The Federal Communications Commission (FCC) announced in a release the "elimination of ... Fairness Doctrine regulations".

Under these rules the FCC compelled broadcasters to carry certain speech. It required them to provide coverage of controversial issues, and to carry opposing viewpoints on these issues. The FCC determined in 1987 that these rules are unconstitutional, that they do not serve the public interest, and that the FCC will no longer enforce them. However, it did not repeal all of its rules.

The U.S.Court of Appeals (DCCir) upheld that 1987 Memorandum Opinion and Order in Syracuse Peace Council v. FCC, 867 F.2d 654.

The Supreme Court had previously upheld the Constitutionality of the FCC's fairness doctrine rules in 1969 in Red Lion v. FCC, 395 U.S. 367.

Red Lion Broadcasting Company, which operated a radio station, broadcast a show titled "Christian Crusade", starring the Reverend Billy James Hargis, a once famous crusader against "godless communism". In one program, the Reverend Hargis referenced a book by one Fred Cook. Cook took exception, and demanded that Red Lion broadcast his viewpoints too. Red Lion refused. The FCC then ordered Red Lion to put Cook on the air. Red Lion went to court, but lost. Ultimately, the Supreme Court affirmed the FCC's power to compel broadcasters to carry speech.

The Supreme Court based its ruling in Red Lion on the never coherent rationale of spectrum scarcity. In the current media environment, with cable and satellite TV, satellite radio, talk radio, news web sites, social media, and other platforms, it is questionable whether the courts would uphold the fairness doctrine.

Rep. Fred Upton (R-MI) and Rep. Greg Walden (R-OR) stated in a release that "The Fairness Doctrine is a relic of an earlier era when government officials thought they knew best what news and information the American people wanted and needed". They added that "The rules are outdated and needlessly endanger our sacred freedoms of speech and the press. The FCC has finally done what it should have done 20 years ago: It has scrapped the Fairness Doctrine once and for all."

FCC Chairman Julius Genachowski stated that "The Fairness Doctrine holds the potential to chill free speech and the free flow of ideas and was properly abandoned over two decades ago."

The FCC also announced the repeal of its broadcast flag rules. The FCC never had statutory authority to promulgate these rules, with which it sought to regulate consumer electronic devices. On May 6, 2005, the U.S.Court of Appeals (DCCir) issued its opinion [34 pages in PDF] in American Library Association v. FCC, overturning these rules. See, story titled "DC Circuit Reverses FCC's Broadcast Flag Rules" in TLJ Daily E-Mail Alert No. 1,131, May 9, 2005.

8/17. National Music Publishers' Association (NMPA) announced in a release that it has reached a settlement with YouTube in copyright infringement litigation initiated the District Court in New York in 2007.

The NMPA stated in this release that "music publishers will have the opportunity to enter into a License Agreement with YouTube and receive royalties from YouTube for musical works in videos posted on the site." In addition, the Harry Fox Agency (HFA) "will administer the license agreements which will be available to all music publishers regardless of affiliation."

Viacom and others filed a complaint in the U.S. District Court (SDNY) on March 12, 2007. See, story titled "Viacom Files Complaint Against Google and YouTube Alleging Violations of Copyright Law" in TLJ Daily E-Mail Alert No. 1,551, March 13, 2007. The NMPA joined this litigation in August of 2007. See, NMPA release.

The District Court granted summary judgment to YouTube on June 23, 2010. It ruled in its opinion and order [30 pages in PDF] that the activities of YouTube at issue in this action fall within the safe harbor protection of the Digital Millennium Copyright Act (DMCA), which is codified at 17 U.S.C.§ 512(c). See, story titled "District Court Grants Summary Judgment to YouTube in Copyright Infringement Case" in TLJ Daily E-Mail Alert No. 2,100, June 23, 2010.

The plaintiffs appealed to the U.S. Court of Appeals (2ndCir), which has not yet ruled. See also, story titled "Viacom Files Appeal Brief in YouTube Copyright Infringement Case" in TLJ Daily E-Mail Alert No. 2,172, December 8, 2010, and "MPAA Files Amicus Brief in Viacom v. YouTube" in TLJ Daily E-Mail Alert No. 2,176, December 12, 2010.

These cases are Viacom International, Inc. et al. v. YouTube, Inc. et al., D.C. No. 07 Civ 2130 (LLS), and Football Association Premier League Limited, et al. v. YouTube, Inc., D.C. No. 07 Civ. 3582 (LLS), both in the U.S. District Court for the Southern District of New York, Judge Louis Stanton presiding.

8/18. Groupon sent a letter [16 pages in PDF] to Rep. Ed Markey (D-MA) and Rep. Joe Barton (R-TX) on August 10, 2011, that responds to their letter of July 26, regarding the July 11 article in the Washington Post titled "Groupon changes privacy policy to collect, share more information".

Rep. Barton stated in a release on August 18 "In answering the questions posed by Rep. Markey and myself the company demonstrated several ways in which they protect consumers' private information. I have learned that Groupon desires to deliver offers that are convenient, affordable, and relevant. In an effort to make this a reality, they should never let convenience compromise the integrity of the company."

Rep. Markey stated in this release that "It's appropriate that Groupon currently uses an opt-in feature for location-based services. This enables consumers to decide whether to grant permission for Groupon to pinpoint where a consumer is at any given moment so it can make offers tailored to that location. Transparent, easily understandable privacy policies and practices are key here, and I will continue to monitor this rapidly developing area of the industry."

8/18. Rep. Joe Barton (R-TX) commented in a release on news media reports regarding supercookies. He wrote that "I find the most recent news of these so-called 'supercookies' disturbing and the fact that major websites like Hulu and MSN didn't know they were attached to their products is just plain frightening."

See, Wall Street Journal story titled "Tech Today: Coming to Your Computer: The Invasive Supercookie" and story titled "Latest in Web Tracking: Stealthy Supercookies", both published on August 18, 2011.

Rep. Barton stated that "Supercookies are legal, but I don't think they should be. It is just one more tool that can be used to track people or even find out their financial information.

He added that "The constant abuse of online activity must stop. I believe the internet business community needs to continue to investigate incidents like this and do a better job at protecting users’ privacy."

Rep. Barton is a senior member of the House Commerce Committee (HCC).

8/16. The U.S. Court of Appeals (7thCir) issued its opinion in Lady Di's v. Enhanced Services Billing, Inc., a case regarding phone bill cramming in which the Court of Appeals affirmed the summary judgment of the District Court against the phone customer.

This case is a putative class action, alleging violation of the laws of the state of Indiana, brought by a phone customer, against two intermediaries that represent purported third party billers in causing third party charges to be placed on phone bills.

This case is of limited significance. It only involves Indiana law. Moreover, the District Court ruled, in part, upon the factual finding that the plaintiff had consented to the disputed charges.

Phone companies bill their customers for services that they provide. They also include on phone bills charges at the direction of third party billers. Many of these third party charges are not authorized by the customers, and are fraudulent.

The case, along with a Senate hearing last month on this issue, and the Federal Communications Commission's (FCC) open rulemaking proceeding, show that fraudulent third party billing is widespread, consumers have no federal private right of action, states such as Indiana provide little recourse to consumers, and the FCC has only limited statutory authority and inclination to tackle fraudulent third party billing practices.

Senate Commerce Committee Hearing. The Senate Commerce Committee (SCC) held a hearing on phone bill cramming on July 13, 2011. At that hearing, Lisa Madigan, Attorney General of Illinois, advocated enactment of legislation banning third party charges on phone bills. She said that allowing third party billing is an "open invitation to fraud and deceit" and "should be banned altogether".

Madigan (at right) said that "people are completely unaware of the fact that their phone number can be used as a credit card". She added that "the vast majority" of consumers never find these unauthorized charges on their bills. And, "almost nobody" goes through their bills. See, story titled "Senate Commerce Committee Holds Hearing on Phone Bill Cramming" in TLJ Daily E-Mail Alert No. 2,258, July 14, 2011.

The SCC also heard testimony from a phone industry representative that the industry derives $200 Million in revenue per year from third party billing.

FCC NPRM. The FCC has an open rulemaking proceeding on phone bill cramming. On July 12, 2011, it adopted and released its Notice of Proposed Rule Making (NPRM) [48 pages in PDF]. It is FCC 11-106 in CG Docket Nos. 11-116 and 09-158, and CC Docket No. 98-170.

On August 23, the FCC set comment deadlines. Initial comments are due by October 24, 2011. Reply comments are due by November 21, 2011. See, notice in the Federal Register, Vol. 76, No. 163, Tuesday, August 23, 2011, a Pages 52625-52632.

However, the proposed rules in this NPRM would only impose minimal new requirements on carriers. First, this NPRM does not propose either to prohibit third party charges on carriers' phone bills, or to require that consumers be given the option to block all third party charges.

Rather, this NPRM merely proposes to tinker with the arrangement of bills, and notices contained in bills. It proposes that FCC's rules be amended to provide that "Where charges for two or more carriers appear on the same telephone bill, the charges must be separated by service provider."

See also, story titled "FCC Adopts Cramming NPRM" in TLJ Daily E-Mail Alert No. 2,258, July 14, 2011.

Lady Di's v. EBSI. Enhanced Services Billing, Inc. (EBSI), one of two defendants in this case, has a history with regulators. The Federal Trade Commission (FTC) filed a civil action in 2001 in the U.S. District Court (DC) against EBSI, alleging unfair and deceptive trade practices, and obtained a consent judgment.

Lady Di's, Inc., a small business that obtains telecommunications services from AT&T, filed a complaint in the U.S. District Court (SDInd) against Enhanced Services Billing, Inc. and ILD Telecommunications, Inc., billing aggregators who cause phone companies to place charges on phone customers' bills, alleging violations of Indiana state law in connection with the placement of unauthorized charges on phone bills. Lady Di's also sought class action status.

The federal Communications Act does not expressly create a private right of action for phone bill cramming. Indeed, the Federal Communications Commission's (FCC) statutory authority to regulate cramming is limited. The only relevant statutory provision, 47 U.S.C. § 201(b), provides, in relevant part, that "All charges, practices, classifications, and regulations for and in connection with such communication service, shall be just and reasonable, and any such charge, practice, classification, or regulation that is unjust or unreasonable is declared to be unlawful ..."

The plaintiff alleged violation of the Indiana anti-cramming regulation, 170 IAC § 7-1.1-19(p), which does not provide a private right of action, and violation of Indiana's Deceptive Commercial Solicitation Act, Ind. Code § 24-5-19-9.

The District Court denied the request for class certification, and granted summary judgment to the defendants. Lady Di's brought the present appeal.

The Court of Appeals affirmed the judgment of the District Court.

It wrote that "the Indiana anticramming regulation does not apply to these defendants because they are not telephone companies and did not act in this case as billing agents for telephone companies."

"Second, we find that there was no unjust enrichment where the plaintiff ordered and received the services in question."

"Third, we find that the Deceptive Commercial Solicitation Act does not apply because the plaintiff had actually ordered the services for which it was charged."

This case is Lady Di's, Inc. v. Enhanced Services Billing, Inc., et al., U.S. Court of Appeals for the 7th Circuit, App. Ct. No. 10-3903, an appeal from the U.S. District Court for the Southern District of Indiana, Indianapolis Division, D.C. No. 1:09-cv-00340-SEB-DML, Judge Sarah Barker presiding. Judge Hamilton wrote the opinion of the Court of Appeals in which Judges Rovner and Joan Lefkow (USDC/NDIll sitting by designation) joined.

The House will not meet.  It is in recess until 2:00 PM on September 7. However, it will hold pro forma sessions twice per week until then.

The Senate will not meet. It is in recess until 2:00 PM on September 6. However, it will hold pro forma sessions twice per week until then.

The House will meet in pro forma session at 10:00 AM.

The Senate will meet in pro forma session at 11:15 AM.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Public Notice (PN) seeking further comments in response to its Notice of Proposed Rulemaking (NPRM) regarding its Lifeline and Link Up Universal Service programs. The FCC released this PN on August 5, 2011. It is DA 11-1346 in WC Docket Nos. 03-109 and 11-42, and CC Docket No. 96-45. The FCC adopted this NPRM on March 3, 2011, and released it on March 4. It is FCC 11-32. See also, notice in the Federal Register, Vol. 76, No. 159, Wednesday, August 17, 2011, at Pages 50969-50971.

Deadline to submit comments to the Department of Transportation's (DOT) Research and Innovative Technology Administration (RITA) in response to the notice in the Federal Register requesting comments regarding Intelligent Transportation Systems (ITS) learning, including "connected vehicle technology that will feature a connected transportation environment among vehicles, the infrastructure, and passengers' portable devices". See, Federal Register, Vol. 76, No. 145, Thursday, July 28, 2011, at Pages 45334-45335.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Third Notice of Proposed Rule Making (3rdNPRM) [32 pages in PDF] regarding the impact of the enactment of the Local Community Radio Act of 2010 (LCRA) on "the procedures previously adopted to process the approximately 6,500 applications which remain pending from the 2003 FM translator window". The FCC adopted and released this item on July 12, 2011. It is FCC 11-105 in MM Docket No. 99-25 and MB Docket No. 07-172. See, notice in the Federal Register, Vol. 76, No. 146, Friday, July 29, 2011, at Pages 45491-45499, and story titled "FCC Adopts LPFM NPRM" in TLJ Daily E-Mail Alert No. 2,258, July 14, 2011.

The House will meet in pro forma session at 10:00 AM.

The Senate will meet in pro forma session at 10:00 AM.

2:00 - 2:15 PM. The American Bar Association (ABA) will host a Training Tuesday webcast event titled "From Signature to E-Signature". See, notice. Free.

3:00 PM. Extended deadline to submit comments to the National Institute of Standards and Technology (NIST) regarding the governance structure for its National Strategy for Trusted Identities in Cyberspace (NSTIC). See, notice in the Federal Register, Vol. 76, No. 158, Tuesday, August 16, 2011, at Page 50719.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Notice of Inquiry (NOI) [27 pages in PDF] regarding rights of way policies and wireless facilities siting requirements. The FCC adopted and released this item on April 7, 2011. It is FCC 11-51 in WC Docket No. 11-59. See, notice in the Federal Register, Vol. 76, No. 95, Tuesday, May 17, 2011, at Pages 28397-28403.

Extended deadline for Bloomberg to file with the Federal Communications Commission (FCC) its reply to Comcast's answer to its complaint regarding channel placement. See, story titled "Sen. Franken Writes FCC Regarding Bloomberg's Complaint Against Comcast" in TLJ Daily E-Mail Alert No. 2,280, August 5, 2011.

Deadline to submit comments to the National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) regarding its draft SP 800-67 Rev. 1 [35 pages in PDF] titled "Recommendation for the Triple Data Encryption Algorithm (TDEA) Block Cipher".

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Public Notice regarding certain universal service and intercarrier compensation reform issues. The FCC released this item on August 3, 2011. It is DA 11-1348 in WC Docket Nos. 10-90, 07-135, 05-337, and 03-109, CC Docket Nos. 01-92 and 96-45, and GN Docket No. 09-51. See, notice in the Federal Register, Vol. 76, No. 154, Wednesday, August 10, 2011, at Pages 49401-49408.

10:00 AM - 2:30 PM. The American Constitution Society for Law and Policy will host an event titled "Legal Policy Shifts Since 9/11". At 10:00 - 11:30 AM there will be a panel titled "Surveillance". The speakers will be Kenneth Wainstein (O’Melveny & Myers, and former head of the DOJ's National Security Division), Jeffrey Rosen (George Washington University law school), Michael German (ACLU), Deepa Iyer (South Asian Americans Leading Together), Gregory Nojeim (Center for Democracy and Technology), and Suzanne Spaulding (Bingham Consulting Group). William Lietzau (Deputy Assistant Secretary of Defense for Rule of Law and Detainee Policy) will be the lunch speaker. At 1:00 - 2:30 PM there will be a second panel. The speakers will be Charlie Savage (New York Times), David Cole (Georgetown University Law Center), Richard Klingler (Sidley Austin), Wendy Patten (Open Society Foundations), Deborah Pearlstein (Princeton University), Geoffrey Stone (University of Chicago Law School). Location: National Press Club, 13th floor, 529 14th St., NW.

12:00 NOON - 1:00 PM. Shannon Rossmiller, an independent online terrorism investigator, will give a speech. See, notice. Location: Heritage Foundation, 214 Massachusetts Ave., NE.

Deadline to submit Form 477 to the Federal Communications Commission (FCC).

8/24. Department of Commerce's (DOC) Bureau of Industry and Security's (BIS) President's Export Council's (PEC) Subcommittee on Export Administration (SEA) announced that it will hold a two day public meeting in the state of Florida on September 19 and 20, 2011. The agenda for September 19 includes "Export Control Reform Field Hearing". The agenda for September 20 includes "Export Control Reform Update" and other items. This meeting will take place at the Sofitel Hotel Miami, 5800 Blue Lagoon Drive, Miami, Florida. The BIS notice makes no mention of webcasting. See, notice in the Federal Register, Vol. 76, No. 164, Wednesday, August 24, 2011, at Page 52935.

8/18. The Department of Justice's (DOJ) Antitrust Division published a notice in the Federal Register (FR) that announces that the Connected Media Experience, Inc., a standard setting organization, has disclosed, pursuant to the National Cooperative Research and Production Act of 1993, changes to its membership. See, FR, Vol. 76, No. 161, Friday, August 19, 2011, at Pages 52013-52014.

8/17. The American Antitrust Institute (AAI) released a paper [38 pages in PDF] titled "The Effects of AT&T's Acquisition of T-Mobile Is Likely to Substantially Lessen Competition".

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