9/4. The U.S. Court of Appeals (2ndCir) issued its opinion in Time Warner Cable v. FCC, a petition for review of the Federal Communications Commission's (FCC) August 1, 2011 program carriage order. The Court of Appeals rejected the petitioners' First Amendment argument, but held that the FCC adopted its standstill provision in violation of the APA's notice and comment requirement. That is, the FCC's order adopted rules not proposed in the relevant NPRM. Hence, the Court of Appeals granted the petition in part, and vacated the order in part. Of course, the FCC may now issue a new NPRM that gives proper notice, and re-adopt the just vacated rules. A fuller story will follow in the next issue.

8/29. The Federal Trade Commission (FTC) announced that it has filed (but not released to the public) an administrative complaint against LabMD. The FTC issued only a news release that omits key information.

The FTC's release does not disclose what statute it alleges has been violated by LabMD. The FTC's release does not disclose what statute authorizes the remedies that it seeks.

The FTC's release does disclose that it alleges that LabMD "failed to reasonably protect the security of consumers' personal data, including medical information". See also, the FTC's web page for this proceeding, FTC Docket No. 9357.

The Congress has not granted the FTC any general statutory authority with respect to either data security or consumer privacy. Numerous such bills have been introduced in recent Congresses, but none has been enacted into law. However, the FTC has on many occasions relied upon Section 5 of the FTC Act (15 U.S.C. § 45) in filing civil and administrative complaints that make allegations regarding data security.

Section 5 merely provides, in relevant part, that "Unfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce, are hereby declared unlawful."

The FTC has promulgated no regulations to implement its asserted authority over data security practices. Hence, the only notice that companies and attorneys have regarding what the FTC asserts is prohibited is its prior complaints and settlements. Since many FTC settlements involve no fines, no admissions of wrongdoing, and no findings of fact and conclusions of law by a judicial officer, they are particularly unsuitable as precedential authority.

LabMD stated in a release that "The Federal Trade Commission's enforcement action against LabMD based, in part, on the alleged actions of Internet trolls, is yet another example of the FTC's pattern of abusing its authority to engage in an ongoing witch hunt against private businesses. The allegations in the FTC's complaint are just that: allegations. LabMD looks forward to vigorously fighting against the FTC's overreach by seeking recourse through the available legal processes."

The FTC did not promptly return a phone call from TLJ regarding this case.

Section 5, Deception, and Unfairness. Section 5 of the FTC Act contains two prongs -- unfairness and deception. The FTC's release does not state whether it is alleging unfairness or deception, if indeed it is even alleging violation of Section 5. However, the FTC's release does allege that LabMD "failed to take reasonable and appropriate measures to prevent unauthorized disclosure of sensitive consumer data". This sounds in the nature of unfairness, rather than deception.

A deception case, hypothetically, might be based upon allegations that the defendant published written representations regarding its data security measures, which representations in fact were not true. An unfairness case would be based upon allegations that there exist standards for data security which business ought to follow, and that the defendant did not adhere to these standards.

Most FTC privacy related actions, other than those involving children and the Children's Online Privacy Protection Act (COPPA), allege violation of the deceptive prong. However, the FTC has taken action based upon the unfairness prong in data security cases.

For example, in 2005, in an action against BJ's Wholesale Club, the FTC alleged unfairness in the context of data security. The FTC alleged in its administrative complaint that BJ's "did not employ reasonable and appropriate measures to secure personal information collected at its stores", such as encryption, and that "This practice was an unfair act or practice". See also, FTC web page with hyperlinks to pleadings in that proceeding.

In 2006, in FTC v. Choicepoint, the FTC alleged both deception, for violating statements in its web site, and unfairness, for failure to "employ reasonable and appropriate security measures to protect consumers' personal information". See also, story titled "FTC Sues ChoicePoint for Sale of Consumer Data to Identity Thieves" in TLJ Daily E-Mail Alert No. 1,298, January 27, 2006. That case is USA v. Choicepoint, Inc., U.S. District Court for the Northern District of Georgia, D.C. No. 1:06-cv-0138-GET.

In 2011, in FTC v. Frostwire, the FTC alleged unfairness in the context of default privacy settings. It filed a complaint in the U.S. District Court (SDFl) that alleged, in Count III, that "FrostWire for Android mobile file-sharing application was likely to cause a significant number of consumers installing and running it to unwittingly share personal files stored on their mobile computing devices with the public", thus increasing "consumers' vulnerability to identity theft", and that this constitutes "unfair acts or practices in violation of Section 5 of the FTC Act". See also, FTC web page with hyperlinks to pleadings in that proceeding.

In June of 2013 the FTC filed a complaint against Wyndham hotel companies alleging both deception and unfairness associated with network security breaches. The complaint alleges that the defendants falsely "represented ... that they had implemented reasonable and appropriate measures to protect personal information against unauthorized access". The complaint also alleges that "Defendants have failed to employ reasonable and appropriate measures to protect personal information against unauthorized access". That case is FTC v. Wyndham Worldwide Corporation, et al., U.S. District Court for the District of Arizona, D.C. No. 2:12-cv-01365-SPL.

Also, on March 26, 2012, the FTC released a report [112 pages in PDF] titled "Protecting Consumer Privacy in a Era of Rapid Change: Recommendations for Businesses and Policy Makers" that contains statements that may imply a forthcoming increased reliance upon unfairness, rather than deception, as the basis for FTC interpretation of its statutory authority under Section 5 of the FTC Act. See also, stories titled "FTC Releases Second Report on Privacy Issues" and "Commentary: Unfair v. Deceptive Conduct" in TLJ Daily E-Mail Alert No. 2,357, March 26, 2012. See also, FTC web page for that proceeding.

Whether the FTC relies upon the deception prong or the unfairness prong of Section 5 is critical.

The word "deceptive" in Section 5 has meaning in both common and legal usage. It gives persons and businesses some notice as to what actions may subject them to enforcement actions. It provides limits to FTC action.

In contrast, the word "unfair" in Section 5 lacks meaning. Whether or not a certain activity is unfair varies from person to person, group to group, business to business, and FTC regulator to FTC regulator. It does not put businesses on notice. It does not limit FTC action.

The task of developing a collective determination as to what activities are unfair, and should be subject to prohibition by law, is inherently legislative. In democratic societies, this task is the province of the elected legislature.

If the FTC is proceeding under Section 5, and relying upon the unfairness prong, it would be exercising two questionable powers. First, it would be asserting the authority to determine what business practices are unfair in the context of data security, which is essentially a legislative power. Second, it would be enforcing non-existent standards. Neither the Congress by statute, nor the FTC by rules, has written any data security standards.

Tech Freedom to Host Panel Discussion. On Thursday, September 12, 2013 at 12:00 NOON, the Tech Freedom (TF) will host a panel discussion titled "What to Do about Data Security? A Discussion of the FTC's LabMD & Wyndham Cases". The speakers will include Mike Daugherty, the founder of LabMD. See, notice and registration page.

LabMD is not large corporation that funds an experienced and connected lobbying team in Washington DC. However, some large and politically active technology companies, such as Google, have received rough treatment from the FTC for alleged violation of unwritten Section 5 principles.

For example, in 2011 the FTC brought and settled an enforcement action against Google in connection with its privacy related practices associated with the initial launch of its Buzz social networking service. See, Decision and Order [7 pages in PDF] dated October 13, 2011.

There is also the matter that many companies are concerned that the FTC is currently shifting its antitrust activities from enforcement of the antitrust statutes, which have been construed in detail by numerous Supreme Court and lower court opinions, to antitrust regulation based upon invocation of a single clause in Section 5. This frees the FTC from the constraints of precedential law, and leaves technology companies in the dark as to what three out of five FTC Commissioners might some day consider to be a violation of Section 5.

9/3. The U.S. Court of Appeals (9thCir) issued its opinion [26 pages in PDF] in Somers v. Apple, a putative class action alleging violation of federal and state antitrust law by Apple in connection with portable digital media players (PDMPs) such as the iPod, music download services such as the iTunes music store, and digital rights management (DRM).

The Court of Appeals affirmed the judgment of the U.S. District Court (NDCal), which denied class certification, and dismissed the complaint for failure to state a claim under Rule 12(b)(6), FRCP.

There is another iPad iTunes antitrust case pending in the same district court. See, In re Apple iPod iTunes Antitrust Litigation, U.S. District Court (NDCal), D.C. No. 05-00037. The Court of Appeals also refers to that other action as the "Direct Purchaser Action".

This is a grasping and lingering case with an ancient history. Apple introduced iTunes in 2001, and later that year began sales of the first iPod. It started the iTunes music store in 2003, with the standard price per song of 99¢, and digital rights management (DRM) named "FairPlay".

Stacie Somers bought an Apple iPod in 2005, and then bought and downloaded to her iPod music from Apple's iTunes music store, also known as iTS. (The plaintiffs class action law firm in this case is Mehri & Skalet.)

Mehri & Skalet filed a complaint in 2007, seeking to represent the class of iPod (indirect) purchasers, and the class of iTunes music (direct) purchasers. The complaint alleged that Apple violated Section 1 of the Sherman Act (15 U.S.C. § 1) in connection with unlawful tying of music sold through iTunes to its iPods, and Section 2 of the Sherman Act (15 U.S.C. § 2) in connection with monopolization of both the market for portable digital media players (PDMPs) and the market for downloaded music.

The original complaint alleged that Apple used "FairPlay" DRM that not only restricted purchasers' ability to make copies, but which also prevented purchasers from playing lawfully purchased music on PDMPs other than iPods. The Court of Appeals wrote that "music purchased from iTS could only be played on the iPod, and the iPod could only play music downloaded from iTS."

The complaint also alleged that Apple continuously issued software updates that excluded competition.

In the other above referenced action, the District Court concluded that the technological interoperability between the iPod and music sold through iTS did not constitute unlawful tying, and ordered the tying claim dismissed. Then, Somers filed an amended complaint that did not include a Section 1 tying claim, but did include Section 2 monopolization claims, and state law claims. She alleged damages based upon inflated prices for music downloads, and deflated value of the iPod.

The District Court dismissed the complaint with leave to amend. Then, Somers filed a second amended complaint that dropped the damages based upon deflated value of the iPod claim. The District Court then dismissed with prejudice, and this appeal followed.

The Court of Appeals affirmed.

As for class certification, the Court of Appeals ruled that the plaintiff had waived review of the District Court's denial of her motion for certification as to one class, and that she had abandoned her claim to represent the other class.

The Court of Appeals held that a claim by indirect purchasers of iPods for the diminution in value to their iPods fails because of the Supreme Court's 1977 opinion in Illinois Brick Co. v. Illinois, 431 U.S. 720. The Court of Appeals wrote that "The indirect purchaser rule bars suits for antitrust damages by customers who do not buy directly from a defendant".

The Court of Appeals continued that "Here, while Somers requests compensatory damages on the theory that Apple's software updates deflated the value of her iPod -- rather than causing an inflation of initial iPod prices -- the rationale under Illinois Brick applies equally to this type of damage claim. The plaintiff in the related Direct Purchaser Action case is seeking damages based on the same kinds of iPods that form the basis of Somers’ suit here, but on the theory that the software upgrades inflated iPod prices. Thus, allowing Somers to sue as an indirect purchaser would lead to litigation on contradictory, duplicative theories of recovery necessitating “evidentiary complexities and uncertainties,” which the indirect purchaser rule was intended to prevent."

The Court of Appeals also articulated a second reason for affirming. "Somers' diminution-in-value theory is also useless by any other iPod purchaser because Somers alleges that Apple used FairPlay from the beginning, when it first launched iTS in 2003, and that the iPod was incapable of playing music from any other on-line store. ... Accordingly, Apple's use of subsequent software updates only served to maintain the status quo at the time of purchase, and therefore cannot plausibly be the basis for diminishing the value of the iPod."

The Court of Appeals next held that the music overcharge claim fails. "Somers claims that the price for music downloads remained the same (99 cents) since it entered the market in 2003, before it obtained monopoly in the audio download market, and after it allegedly acquired monopoly in that market in 2004." (Parentheses in original.)

Moreover, "Somers does not allege that Apple’s music price changed -- even after Apple’s alleged monopoly ended in the beginning of 2008 -- when Amazon began selling DRM-free music, and after Apple began selling Fairplay-free music in January 2009."

Hence, "Somers' overcharge theory is thus implausible in the face of contradictory market facts alleged in her complaint. ... The fact that Apple continuously charged the same price for its music irrespective of the absence or presence of a competitor renders implausible Somers' conclusory assertion that Apple’s software updates affected music prices."

The Court of Appeals also affirmed the District Court's dismissal of Somer's claim for injunctive relief. It wrote that "Somers' alleged inability to play her music freely is not an ``antitrust injury´´ that affects competition, and thus cannot serve as a basis for injunctive relief."

This case is Stacie Somers v. Apple, Inc., U.S. Court of Appeals for the 9th Circuit, App. Ct. No. 11-16896, an appeal from the U.S. District Court for the Northern District of California, D.C. No. 5:07-cv-06507-JW, Judge James Ware presiding. Judge Milan Smith wrote the opinion of the Court of Appeals, in which Judge Dorothy Nelson and Stephen Reinhardt joined.

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Notices & Disclaimers
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The House will not meet.

The Senate will not meet.

1:00 - 2:30 PM. The American Bar Association's (ABA) Section of Antitrust Law will host a webcast and teleconferenced panel discussion titled "Risk Factors for Second Request Merger Investigations by the DOJ and FTC". The speakers will be Margaret Calvert (Compass Lexecon), Mike Cowie (Dechert), Michael Knight (Jones Day), Darren Tucker (Bingham McCutchen), and Robert Davis (Venable). Prices vary. CLE credits. See, notice.

3:00 - 4:30 PM. The New America Foundation (NAF) and the Free Press (FP) will host a panel discussion regarding Verizon v. FCC. The U.S. Court of Appeals (DCCir) will hear oral argument on September 9. The speakers will be Susan Crawford (Cardozo School of Law), Angie Kronenberg (Comptel), Marti Doneghy (AARP), Matt Wood (FP) and Sarah Morris (NAF). See, notice. Location: NAF, Suite 400, 1899 L St., NW.

4:00 - 5:00 PM. The Board of the First Responder Network Authority, which is also known as FirstNet, will hold an event titled "Special Meeting". There will be no public access to an on site meeting. There will be public listen only teleconferencing. The call in number is 1-888-469-3306. The access code is FirstNet. See, notice in the Federal Register, Vol. 78, No. 170, September 3, 2013, at Pages 54241-54242.

4:30 - 5:30 PM. The American Enterprise Institute (AEI) will host a webcast panel discussion titled "Can the FCC Regulate the Internet? The Open Internet Order on Trial". The speakers will be Rob Atkinson (Information Technology and Innovation Foundation), Babette Boliek (Pepperdine Law School), Ev Ehrlich, Randolph May (Free State Foundation), Robert McDowell (Hudson Institute), and Jeffrey Eisenach (Navigant Economics). See, notice.

Deadline to submit to the Federal Communications Commission (FCC) statements supporting or opposing the Administrative Council for Terminal Attachments' (ACTA) June 25, 2013 Petition for Rulemaking [7 pages in PDF]. See, FCC notice (Report No. 2989) and ACTA release of June 28.

8:30 AM. The Department of Labor's (DOL) Bureau of Labor Statistics (BLS) is scheduled to release its August 2013 unemployment data.

9:00 - 10:00 AM. The Federal Communications Commission's (FCC) Advisory Committee for the 2015 World Radiocommunication Conference's Informal Working Group 1 (Maritime, Aeronautical and Radar Services) will meet by teleconference. See, FCC's August 22, 2013 Public Notice (DA 13-1790 in IB Docket No. 04-286). The call in numbers are 888-858-2144 or 646-746-3008. The access code is 8672480.

10:00 AM. The Senate Intelligence Committee (SIC) will hold a closed hearing on undisclosed matters. See, notice. Location: Room 219, Hart Building.

10:00 - 11:30 AM. The Brookings Institution (BI) will host a panel discussion titled "Securing a More Sustainable Growth Path for China". The speakers will be Eswar Prasad (BI), Marcus Rodlauer (International Monetary Fund), David Dollar (BI) and Stephen Roach (Yale University). See, notice. Location: BI, 1775 Massachusetts Ave., NW.

12:00 NOON - 1:15 PM. The American Bar Association (ABA) will host an on site and teleconferenced panel discussion titled "Does Aspen Skiing Apply to Intellectual Property Rights?". See, Supreme Court's 1985 opinion in Aspen Skiing v. Aspen Highlands, 472 U.S. 585, and amicus curiae brief [25 pages in PDF] filed by the Federal Trade Commission (FTC) with the U.S. District Court (DNJ) in Actelion Pharmaceuticals v. Apotex. The speakers will be Koren Ervin (FTC), Jonathan Gleklen (Arnold & Porter), Markus Meier (FTC), and Ali Stoeppelwerth (Wilmer Hale). Prices vary. No CLE credits. See, ABA notice. Location: Arnold & Porter, 555 12th St., NW.

Deadline to submit initial comments to the Federal Communications Commission's (FCC) Wireline Competition Bureau (WCB) regarding proposed revisions to the sample reseller certification language and accompanying sections of the FCC Form 499-A instructions. See, Public Notice, DA 13-1700 in WC Docket No. 06-122. See also, notice in the Federal Register, Vol. 78, No. 160, August 19, 2013, at Pages 50415-50416.

Deadline to submit initial comments to the Federal Communications Commission (FCC) regarding Time Warner Cable's (TWC) August 8, 2013 Petition for Preemption [30 pages in PDF] of the North Carolina Rural Electrification Authority (NCREA) with respect to the arbitration of an interconnection agreement between TWC and Star Telephone Membership Corporation. See, FCC's August 16, 2013 Public Notice, DA 13-1772 in WC Docket No. 13-204.

Deadline for AT&T, Leap Wireless and others to submit to the Federal Communications Commission (FCC) oppositions to the FCC's order that they disclose their Numbering Resource Utilization and Forecast (NRUF) and local number portability (LNP) data for inclusion in the FCC's record in its review of AT&T's planned acquisition of Leap. See, FCC's August 29, 2013 Public Notice (DA 13-1842 in WT Docket No. 13-193 and CC Docket No. 99-200). AT&T filed its request for FCC approval of this transaction on August 1, 2013. The deadline to submit petitions to deny and comments is September 27. The deadline to submit oppositions is October 7. The deadline to submit replies is October 15. See, FCC August 28, 2013 Public Notice (DA 13-1831). See also, the FCC's Office of General Counsel's (OGC) web page for this merger review.

Deadline to submit initial comments to the Federal Communications Commission (FCC) regarding the July 15, 2013 ex parte presentation [91 pages in PDF] of LightSquared regarding GPS, and particularly its terrestrial wireless handsets in the 1626.5-1660.5 MHz Mobile Satellite Service (MSS) uplink portion of the L-band. See, FCC's August 7, 2013 Public Notice (DA 13-1717 in IB Docket Nos. 12-340, 11-109, etc.)

The House will return from its August recess. See, House calendar for the 113th Congress, 1st Session.

The Senate will return from its August recess. See, Senate calendar for the 113th Congress, 1st Session.

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in Verizon v. FCC, App. Ct. No. 11-1355, the challenge to the Federal Communications Commission's (FCC) December 2010 Report and Order (R&O) [194 pages in PDF] that adopted rules regulating broadband internet access service (BIAS) providers. The order is FCC 10-201 in GN Docket No. 09-191 and WC Docket No. 07-52. See, stories in TLJ Daily E-Mail Alert No. 2,186, December 22, 2010, and TLJ Daily E-Mail Alert No. 2,188, December 24, 2010. Verizon filed its brief on July 2, 2012. The FCC filed its brief [121 pages in PDF] on September 10, 2012. See, story titled "FCC Files Brief with DC Circuit in Challenge to BIAS Rules" in TLJ Daily E-Mail Alert No. 2,445, September 11, 2012. See also, FCC's surreply brief [15 pages in PDF] filed on January 15, 2013. Judges Rogers, Tatel, and Silberman will preside. This is the first item on the Court's agenda. Location: USCA Courtroom, 4th floor, Prettyman Courthouse, 333 Constitution Ave., NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Mondis Technology Ltd. v. Innolux Corporation, App. Ct. No. 13-1178. Panel C. Location: Courtroom 201, 717 Madison Place, NW.

10:30 AM. The Office of the U.S. Trade Representative (OUSTR) will hold a hearing in its Section 301 investigation of the intellectual property related actions of government of Ukraine. Section 301 is the statutory means by which the U.S. asserts its international trade rights, including its rights under World Trade Organization (WTO) agreements. In particular, under the "Special 301" provisions of the Trade Act of 1974, the OUSTR identifies trading partners that deny adequate and effective protection of intellectual property or deny fair and equitable market access to U.S. artists and industries that rely upon intellectual property protection. See, 19 U.S.C. § 2242. See, notice in the Federal Register, Vol. 78, No. 143, July 25, 2013, at Page 45011. Location: OUSTR, 1724 F St., NW.

12:00 NOON. The Tech Freedom (TF) will host a panel discussion titled "Recap Luncheon After Net Neutrality Appellate Arguments". The speakers will be Robert McDowell (Hudson Institute), Matt Brill (Latham & Watkins), Sherwin Siy (Public Knowledge), Markham Erickson (Steptoe & Johnson), Fred Campbell (Competitive Enterprise Institute), and Berin Szoka (TF). Free. Open to the public. See, registration page. Lunch will be served. Location: TF, 110 Maryland Ave., NE.

Deadline to submit comments to the Department of Commerce's (DOC) Bureau of Industry and Security (BIS) regarding its proposed changes to its Export Administration Regulations covering military electronics and other technologies. See, notice in the Federal Register, Vol. 78, No. 143, July 25, 2013.

8:30 AM - 6:00 PM. Day one of a two day meeting of the Executive Office of the President's (EOP) Office of Science and Technology Policy's (OSTP) Subcommittee on Nanoscale Science, Engineering, and Technology. See, notice in the Federal Register, Vol. 78, No. 146, July 30, 2013, at Pages 45992-45993. Location: Department of Agriculture Conference & Training Center, Patriots Plaza III, 355 E St., SW.

9:00 AM. The Department of Commerce's (DOC) Bureau of Industry and Security's (BIS) Regulations and Procedures Technical Advisory Committee (RPTAC) will hold a partially closed meeting. See, notice in the Federal Register, Vol. 78, No. 166, August 27, 2013, at Page 52904. Location: DOC, Room 3884, Hoover Building, 14th Street between Constitution and Pennsylvania Avenues, NW.

? POSTPONED SEVERAL TIMES. 9:00 - 10:30 AM. The Information Technology and Innovation Foundation (ITIF) will host an event titled "Is Technology Responsible for American Job Loss?". The speakers will be Robert Atkinson (ITIF), Andrew McAfee (MIT business school), and Edward Luce (Financial Times). McAffee is a co-author of the book [Amazon Kindle edition] titled "Race Against The Machine: How the Digital Revolution is Accelerating Innovation, Driving Productivity, and Irreversibly Transforming Employment and the Economy". See, notice. Location: ITIF/ITIC, Suite 610A, 1101 K St., NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Vederi v. Google, App. Ct. No. 13-1057, an appeal from the U.S. District Court (CDCal) in a patent infringement case involving Google's Street View. Panel E. Location: Courtroom 201, 717 Madison Place, NW.

12:00 NOON - 1:00 PM. The American Bar Association's (ABA) Section of Antitrust Law will host a teleconferenced panel discussion titled "July-August In-House Counsel Antitrust Update". The speakers will be Lisa Fales, Bill Coston, Tom Gilbertsen, David Conway, and Paul Feinstein (all of the Washington DC office of Venable). Free. No CLE credits. See, notice.

2:00 PM. The Department of State's (DOS) International Telecommunication Advisory Committee (ITAC) will meet to initiate preparations for the International Telecommunication Union's (ITU) Plenipotentiary Conference 2014 (PP14). The agenda also includes an "update on the preparations for the World Telecommunication Development Conference (WTDC-2014) in light of the Regional Preparatory Meeting (RPM) for the Americas region; as well as the World Summit on the Information Society+10 high level event in conjunction with WTDC-2014". See, notice in the Federal Register, Vol. 78, No. 154, August 9, 2013, at Page 48765. Location: 1200 Wilson Boulevard, Arlington, VA.

2:30 PM. The Senate Judiciary Committee's (SJC) Subcommittee on Bankruptcy and the Courts will hold a hearing on S 1385 [LOC | WW], the "Federal Judgeship Act of 2013". The bill would increase the number of judgeships on the U.S. Court of Appeals (9thCir) from 29 to 33. It would also increase the size of the 6th Circuit by one judge. It would not divide the 9th Circuit, or reduce the size of the DC Circuit. See, notice. Location: Room 226, Dirksen Building.

8:30 AM - 3:00 PM. Day two of a two day meeting of the Executive Office of the President's (EOP) Office of Science and Technology Policy's (OSTP) Subcommittee on Nanoscale Science, Engineering, and Technology. See, notice in the Federal Register, Vol. 78, No. 146, July 30, 2013, at Pages 45992-45993. Location: Department of Agriculture Conference & Training Center, Patriots Plaza III, 355 E St., SW.

9:00 - 10:30 AM. The Information Technology & Innovation Foundation (ITIF) will host a panel discussion titled "Engineering 2.0: Rekindling American Ingenuity". The speakers will be Robert Atkinson (ITIF), Pramod Khargonekar (National Science Foundation), Sridhar Kota (University of Michigan -- Ann Arbor), Helmuth Ludwig (Siemens Industrial), and Dan Mote (National Academy of Engineering). Free. Open to the public. See, notice. Location: ITIF/ITIC, Suite 610A, 1101 K St., NW.

10:00 AM. The Senate Judiciary Committee (SJC) will hold a hearing on five pending judicial nominees: Robert Wilkins (to be a Judge of the U.S. Court of Appeals (DCCir)), James Donato (USDC/NDCal), Beth Freeman (USDC/NDCal), Timothy Brooks (USDC/WDArk), Pedro Hernandez (USDC/DPR). The SJC will provide a live and archived webcast. See, notice. Location: Room 226, Dirksen Building.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Apple v. Motorola, App. Ct. No. 12-1548. Panel G. Location: Courtroom 201, 717 Madison Place, NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in CBT Flint Partners v. Cisco Ironport Systems, App. Ct. No. 13-1036, an appeal from the U.S. District Court (NDGa) in a patent infringement case. At issue is the award of discovery costs. See, Business Software Alliance's (BSA) amicus curiae brief. Panel H. Location: Courtroom 402, 717 Madison Place, NW.

10:30 AM. The Senate Appropriations Committee's (SAC) Subcommittee on Financial Services and General Government will hold a hearing on the FY 2014 appropriation for the Federal Communications Commission (FCC). The witnesses will be Mignon Clyburn, Ajit Pai and Jessica Rosenworcel. See, notice. Location: Room 138, Dirksen Building.

2:00 PM. The House Commerce Committee's (HCC) Subcommittee on Communications and Technology (SCT) will hold a hearing titled "Innovation Versus Regulation in the Video Marketplace". The witnesses will be __. See, notice. Location: Room 2123, Rayburn Building.

2:00 PM. The House Homeland Security Committee's (HHSC) Subcommittee on Cybersecurity, Infrastructure Protection and Security Technologies will hold a hearing titled "The Threat to Americans’ Personal Information: A Look into the Security and Reliability of the Health Exchange Data Hub". See, notice. Location: Room 311, Cannon Building.

6:00 - 9:15 PM. The DC Bar Association will host a program titled "How to Litigate a Patent Infringement Case 2013". The speaker will be Patrick Coyne (Finnegan Henderson). The price to attend ranges from $89 to $129. CLE credits. For more information, call 202-626-3488. The DC Bar has a history of barring reporters from its events. See, notice. Location: DC Bar Conference Center, 1101 K St., NW.

Deadline to submit to the Federal Communications Commission (FCC) oppositions to the petition for reconsideration [21 pages in PDF] filed by the American Association for Justice (an interest group that represents plaintiffs' trial lawyers) of the FCC's order [202 pages in PDF] regarding human exposure to radiofrequency electromagnetic fields. The FCC adopted this order on March 27, 2013, and released its on March 29. It is FCC 13-39 in ET Docket No. 03-137. See, FCC Public Notice, and notice in the Federal Register, Vol. 78, No. 166, August 27, 2013, at Page 52893.

? Deadline to submit initial statements supporting or opposing the Fiber to the Home Council Americas' (FTTHCA) July 23, 2013 petition for rulemaking [57 pages in PDF] regarding creating a new universal service subsidy program which it titles "Universal Service Gigabit Communities Race-to-the-Top Program". The FTTHCA wants subsidies to "support the deployment of ultra-high-speed networks with symmetrical gigabit services for community anchor institutions and their surrounding related neighborhoods in Tier II and Tier III markets". See, FCC's August 12, 2013 Public Notice, which sets no deadline. (47 CFR § 1.405(a) sets 30 days from Public Notice as the deadline for initial statements in support of or in opposition to a petition for rule making.)

9:00 AM - 5:00 PM. The U.S.-China Economic and Security Review Commission will hold one in a series of meetings to review and edit its 2013 annual report to the Congress. Open to the public. See, notice in the Federal Register, Vol. 78, No. 151, August 6, 2013, at Pages 47829-47830. Location: Room 231, Hall of the States, 444 North Capitol St., NW.

9:00 AM. The President's Council of Advisors on Science and Technology (PCAST) will hold a partially closed meeting. The open portion of the meeting will be held from 9:00 AM to 12:00 NOON. See, notice in the Federal Register, Vol. 78, No. 160, August 19, 2013, at Page 50404. Location: National Academy of Sciences, Room 120, 2101 Constitution Ave., NW.

9:30 - 10:30 AM. The New America Foundation (NAF) will host a speech and panel discussion regarding the Federal Communications Commission's (FCC) Lifeline universal service tax and subsidy program. The event is titled "Communications Safety Net: How Lifeline Connects Families and Communities". Mignon Clyburn (FCC Chairman) will give a speech. The panel will be Chanelle Hardy (National Urban League), Catherine Sandoval (California Public Utilities Commission), Jessica Gonzalez (National Hispanic Media Coalition), Olivia Wein (National Consumer Law Center), and Gene Kimmelman (Global Partners). See, notice. Location: NAF, Suite 400, 1899 L St.,  NW.

10:00 AM. The Senate Judiciary Committee (SJC) will hold an executive business meeting. The agenda again includes consideration of S 987 [LOC | WW], the "Free Flow of Information Act of 2013". Location: Room 226, Dirksen Building.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in JuxtaComm-Texas Software v. Tibco Software, App. Ct. No. 13-1004. Panel I. Location: Courtroom 201, 717 Madison Place, NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Richard Williamson, on behalf of and as Trustee for At Home Bondholders' Liquidating Trust v. Citrix Online, LLC, et al., App. Ct. No. 13-1130. Panel I. Location: Courtroom 201, 717 Madison Place, NW.

12:00 NOON. The Tech Freedom (TF) will host a panel discussion titled "What to Do about Data Security? A Discussion of the FTC's LabMD & Wyndham Cases". The speakers will be Mike Daugherty (LabMD) and __. Free. Open to the public. See, registration page. Lunch will be served. Location: TF, 110 Maryland Ave., NE.

1:00 - 5:00 PM. The Federal Communications Commission's (FCC) Communications Security, Reliability, and Interoperability Council (CSRIC) will meet. See, August 15, 2013 Public Notice (DA 13-1762), and notice in the Federal Register, Vol. 78, No. 148, August 1, 2013, at Pages 46582-46583. Location: FCC, Commission Meeting Room, 445 12th St., SW.

1:00 - 2:30 PM. The American Bar Association (ABA) will host a webcast panel discussion titled "Trademark Fundamentals: Managing Your IP in a World of Social Media". The speakers will be Fawn Horvath (Macy's), John McKeown (Goldman Sloan Nash & Haber), Britt Anderson (K&L Gates), and Chrissie Scelsi (Scelsi Entertainment & New Media Law). Prices vary. CLE credits. See, notice.

Deadline to file requests to appear at the U.S. International Trade Commission's (USITC) September 25, 2013 hearing titled "Digital Trade in the U.S. and Global Economies". See, USITC release, and notice in the Federal Register, Vol. 78, No. 162, August 21, 2013, at Pages 51744-51746. See also, story titled "USITC Releases First Report on Digital Trade" in TLJ Daily E-Mail Alert No. 2,589, August 26, 2013.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its August 29, 2013 Public Notice (DA 13-1846 in WC Docket No. 10-90) that requests comments regarding its Version 3.2 of the Connect America Fund Phase II Cost Model, and especially model costs for undersea cable connecting non-contiguous areas to the contiguous U.S.

9:00 AM - 5:00 PM. The U.S.-China Economic and Security Review Commission will hold one in a series of meetings to review and edit its 2013 annual report to the Congress. Open to the public. See, notice in the Federal Register, Vol. 78, No. 151, August 6, 2013, at Pages 47829-47830. Location: Room 231, Hall of the States, 444 North Capitol St., NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument en banc in Lighting Ballast Control v. Philips Electronics North America , App. Ct. No. 12-1014, an appeal from the U.S. District Court (NDTex) in a patent infringement case. At issue is claim construction, and the 1998 opinion of the Federal Circuit in Cybor v. FAS Technologies, 138 F.3d 1448. The Court's March 15, 2013 order granting en banc rehearing requests briefing on three questions: (1) should Cybor be overruled?, (2) "Should this court afford deference to any aspect of a district court’s claim construction?", and (3) "If so, which aspects should be afforded deference?". See also, amicus curiae brief of the AIPLA, amicus curiae brief of the IPO, amicus curiae brief of Microsoft, amicus curiae brief of the ABA, and amicus curiae brief of universities. Panel A. Location: Courtroom 201, 717 Madison Place, NW.

Target date for the Department of Health and Human Services' (DHHS) Substance Abuse and Mental Health Services Administration (SAMHSA) to announce the winners of its contest for the development of web applications, mobile apps, and other information technology based products that help prevent high risk drinking among college students. The awards are $60,000 for first place, $30,000 for second place, and $10,000 for third place. See, notice in the Federal Register, Vol. 78, No. 101, May 24, 2013, at Pages 31571-31572.

Deadline to submit reply comments to the Federal Communications Commission's (FCC) Wireline Competition Bureau (WCB) regarding proposed revisions to the sample reseller certification language and accompanying sections of the FCC Form 499-A instructions. See, Public Notice, DA 13-1700 in WC Docket No. 06-122. See also, notice in the Federal Register, Vol. 78, No. 160, August 19, 2013, at Pages 50415-50416.

Deadline to submit to the Federal Communications Commission (FCC) reply comments to the May 16, 2013 Petition [14 pages in PDF] of the Coalition of E-Reader Manufacturers (Amazon, Kobo and Sony) for a waiver of the FCC's disability access rules for e-readers. See, August 1, 2013 Public Notice, DA 13-1686 in CG Docket No. 10-213.