9/25. Bill Baer, Assistant Attorney General in charge of the Department of Justice's (DOJ) Antitrust Division, gave a speech [13 pages in PDF] in Washington DC titled "Remedies Matter: The Importance of Achieving Effective Antitrust Outcomes".

It was his first public speech since taking office on January 3, 2013. However, he testified at a Senate Judiciary Committee (SJC) hearing on April 16, 2013. See, prepared testimony [10 pages in PDF] and SJC web page for that hearing. Before that, he testified at his confirmation hearing before the SJC on July 26, 2012. See, SJC web page for that hearing.

Baer (at right) began with this statement. "Antitrust's touchstone should be the preservation or restoration of competition in the affected market. Nothing less."

Notably, he did not state "Nothing more".

He said that the DOJ will seek appointment of independent corporate monitors in both civil and criminal cases.

He discussed several cases related to information and communications technology, including the DOJ's Clayton Act merger block against case AT&T and T-Mobile USA, its Sherman Act e-book price fixing case against Apple and book publishers, and its Sherman Act criminal price fixing cases against LCD makers and executives.

DOJ v. AT&T and T-Mobile USA. He praised the DOJ's blocking of the proposed AT&T T-Mobile USA merger in 2011 pursuant to Section 7 of the Clayton Act (15 U.S.C. § 18) as "the right call".

See, complaint [25 pages in PDF] filed in the U.S. District Court (DC), and story titled "DOJ Files Complaint to Block AT&T Acquisition of T-Mobile USA" in TLJ Daily E-Mail Alert No. 2,298, August 31, 2011.

AT&T and T-Mobile abandoned their merger plans in December of 2011. See, story titled "AT&T and T-Mobile Abandon Merger Effort" in TLJ Daily E-Mail Alert No. 2,320, December 20, 2011.

He said that "Once the division concludes that a transaction is anticompetitive, we should only consider remedies that effectively resolve the competitive concerns and protect the competitive process. In some mergers, that means a full stop injunction is the only right law enforcement outcome. AT&T's proposed acquisition of T-Mobile was such a case."

He did not mention the Federal Communications Commission's (FCC) activities with respect to that merger, or any other matter, in the text or footnotes of the written version of his speech.

He did write in a footnote to his speech that the DOJ and FTC "are closely aligned".

DOJ v. Apple. Baer also discussed the Apple e-books case. The case was filed before his confirmation, but tried several months after he took office.

He offered this description of the facts and Sherman Act Section 1 (15 U.S.C. § 1) violation in this case. The DOJ "challenged a conspiracy among Apple and five of the nation’s largest publishers to stifle retail price competition for e-books. Over three days in January 2010, each of the publishers signed contracts with Apple, under which Apple agreed to let publishers set retail e-books prices – often referred to as the agency model. The contracts set pricing tiers that were virtually identical for all five publishers. They also included most-favored-nation (MFN) provisions, which effectively compelled the publishers to pull other retailers onto the same agency model."

He continued that "The effect of the illegal agreement was demonstrable and profound. Once Apple’s retail competitors were forced to adopt the agency model, retail prices for the publishers' e-books jumped in unison. Almost overnight, the prices of the defendant publishers’ best sellers sold on Amazon increased by more than 40 percent." (Footnotes omitted from this and other quotes.)

He also discussed remedies, and remedies in the context of this case. "Permanent injunctive relief in a Sherman Act case should end the violation, prevent recurrence, and restore competition in the market."

He elaborated that in the Apple case the DOJ's objective "was to obtain an injunction that would stamp out any lingering effects of the conspiracy, prevent Apple and others from engaging in similar conduct in the future, and ensure that Apple put in place the training and internal compliance controls needed to avoid a recurrence."

He said that the September 6, 2013 final judgment and permanent injunction [17 pages in PDF] "accomplishes this. Most prominently, it requires significant improvements to Apple's antitrust compliance program, including the designation -- over Apple's strenuous objection -- of an external compliance monitor."

See also, story titled "District Court Issues Final Judgment in Apple E-Books Antitrust Case" in TLJ Daily E-Mail Alert No. 2,597, September 9, 2013.

Baer also explained why the DOJ sought appointment of a monitor. "Apple's senior executives and in-house counsel helped orchestrate the price-fixing scheme. These are the very people who should have been ensuring Apple’s compliance with the law. There was no evidence of antitrust awareness or of self-reflection by Apple during the conspiracy or afterwards."

This monitor has authority to make recommendations to Apple, which if rejected by Apple, must be referred to the Court. The monitor also has authority to report violations to the Court. Hence, this is both an intrusive remedy, and one that indirectly involves the Court and DOJ in corporate management.

This remedy may be inconsistent with the understanding that the Antitrust Division is primarily a law enforcement agency, not a regulator, that punishes wrongdoers for past violations and enjoins future violations of law, but does not regulate companies or engage in management.

Baer concluded that "When conduct harms consumers and raises serious questions about a company's commitment and ability to police its own conduct, independent, external oversight may well be needed to protect consumers from future misconduct."

He also warned that "We will seek other equitable remedies in appropriate circumstances. Disgorgement of ill-gotten gains is one example."

He noted that while the DOJ did not seek disgorgement in the Apple case, "the states and private plaintiffs at the same time reached settlements with the publisher defendants to refund more than $160 million to e-books consumers". Also, the District Court has yet to decide on damages in the DOJ's action against Apple.

DOJ v. LCD Makers. Baer also discussed the DOJ's long series of price fixing cases brought against manufacturers of liquid crystal display  (LCD) panels, and some key executives.

He focused on recent trials and remedies involving AU Optronics Corporation. In that case, the DOJ requested, and the District Court imposed, as a probation condition, that the company hire an independent corporate monitor to develop and implement an effective antitrust compliance program. The Court also imposed a $500 Million fine, which was less than requested by the DOJ.

See, items titled "DOJ Seeks Billion Dollar Fine and 10 Year Prison Sentences in LCD Price Fixing Case" in TLJ Daily E-Mail Alert No. 2,447, September 13, 2012, "More Antitrust News" in TLJ Daily E-Mail Alert No. 2,494, December 19, 2012, and "More News" in TLJ Daily E-Mail Alert No. 2,547, April 8, 2013.

Baer v. Supreme Court. Key provisions of federal antitrust statutes are brief, and provide little guidance to businesses, regulators, and courts. However, there is a huge body of law created by judicial -- especially Supreme Court -- interpretation of these statutes.

Antitrust law experienced a transformational shift in the 1980s and after. Lawyers in the Carter DOJ advocated reform. The 1978 publication of the book [Amazon] titled "The Antitrust Paradox" by Robert Bork was influential. Reagan's appointment of Chicago school judges, justices, and DOJ regulators implemented changes in interpreting antitrust law, for example, towards reliance upon economic analysis, towards protecting consumer welfare rather than competitors, and towards a nti-cartel enforcement.

Baer said nothing about all this in his speech. However, the cases that he cited may be revealing. In the text and footnotes to this speech, Baer cited five Supreme Court antitrust opinions. They were issued in 1922, 1947, 1961, 1972, and 1978 -- all pre-transformation cases.

He did cite the Supreme Court's 2005 opinion in US v. Booker. But, that was a criminal case regarding sentencing guidelines.

Also, he referenced American Express v. Italian Colors Restaurant, a Sherman Act tying class action case involving the issue of enforceability of arbitration clauses. The Supreme Court released its opinion [28 pages in PDF] on June 20, 2013. However, Baer did not state that the Supreme Court had decided that case, or what the outcome was.

Instead, Baer cited only the DOJ's amicus curiae brief [42 pages in PDF]. In fact, the Supreme Court rejected the position taken by the DOJ.

In that case, the Supreme Court split along party lines. Justices Scalia, Roberts, Kennedy, Thomas and Alito formed the majority. Justices Kagan, Ginsburg and Breyer dissented. Justice Sotomayor did not participate.

9/26. The Department of Justice (DOJ) and IBM entered into a Settlement Agreement [4 pages in PDF] regarding IBM's hiring practices for application and software developers.

The DOJ filed no civil or criminal complaint with the U.S. District Court. It filed no administrative complaint. The parties merely entered into a short and vague agreement.

This agreement contains no recitation of factual allegations, or statement of a claim. It merely states that the DOJ investigated "potential citizenship status discrimination" under 8 U.S.C. § 1324b by IBM.

There is a reference in the mutual promises section to "job advertisements allegedly expressing a preference for non-immigrant temporary visa holders".

The DOJ's public relations office alleged in a release that IBM violated the statute "when it placed online job postings for application and software developers that contained citizenship status preferences for F-1 and H-1B temporary visa holders."

The DHS's U.S. Citizenship and Immigration Services (USCIS) issues F-1 visas to full time academic students at an accredited college, university, seminary, conservatory, academic high school, elementary school, or other academic institution or in a language training program.

The USCIS issues H-1B visas to foreign nationals with technical expertise in specialized fields. This visa program is used by technology companies to employ skilled tech workers. It is also widely abused, and fraud ridden.

The DOJ release adds that "IBM's job postings were for positions that would ultimately require the successful candidate to relocate overseas".

That is, the DOJ release recites a rationale and legitimate basis for seeking H1B and F1 visa holders. The jobs were for foreign positions, and H1B and F1 applicants already have foreign citizenship that would enable them to re-enter and work in their countries. The US is not the only country that builds burdensome and often irrational barriers to the free movement of skilled technology workers.

Under the agreement, neither IBM nor the DOJ admit wrongdoing.

However, IBM agrees that it "shall not discriminate on the basis of citizenship status or national origin in violation of 8 U.S.C. § 1324b", and similar terms, and that it will pay a fine of $44,400.

Section 1324 provides in part that "It is an unfair immigration-related employment practice for a person or other entity to discriminate against any individual ... with respect to the hiring, or recruitment ... of the individual for employment or the discharging of the individual from employment ... because of such individual's national origin".

The DOJ release discloses that IBM discriminated in favor of, not against, foreigners with H1B and F1 visas. Neither the release nor the agreement specify the target of IBM's possible discrimination. Hypothetically, it could be US citizens. Or, it could be foreign citizens who do not hold H1B or F1 visas. Or, it could be that the DOJ construes "discrimination against ... because of .. national origin" to include discrimination in favor.

This case was handled by the DOJ's Civil Rights Division's (CRD) Office of Special Counsel for Immigration Related Unfair Employment Practices.

The CRD has a history, particularly in the context of the Americans with Disabilities Act (ADA), of acting beyond its statutory authority, and without an understanding of the tech companies and products that it targets.

Neither IBM nor the DOJ promptly responded to phone calls or e-mail from TLJ.

9/26. The Federal Communications Commission (FCC) adopted by a vote of 2-1 a Notice of Proposed Rulemaking (NPRM) [22 pages in PDF] regarding its regulation of media ownership.

This NPRM pertains to the FCC's national television rule, which limits any entity from owning TV stations that cumulatively reach more that 39 percent of TV households nationwide. The current rule counts TV stations on UHF channels (14 and above) differently from TV stations on VHF channels (13 and below).

The NPRM proposes changing the rule to end the current 50% UHF discount for the purpose of estimating a TV station's national audience reach. It states that "the DTV transition has rendered the UHF discount obsolete and it should be eliminated".

This NPRM contains the proposed rule change. It would merely delete the sentence that states the discount.

The NPRM also states that "the elimination of the UHF discount would impact the calculation of nationwide audience reach for broadcast station groups with UHF stations. We believe, however, that only a small number of broadcast station ownership groups have combinations that approach the current 39 percent ownership nationwide cap and that might exceed the cap if the UHF discount were eliminated. We therefore propose, in the event that we eliminate the UHF discount, to grandfather broadcast station ownership groups to the extent that they exceed the 39 percent national audience cap solely as a result of the termination of the UHF discount rule as of the date of the release of this NPRM. We also propose to grandfather proposed station combinations that would exceed the 39 percent cap as a result of the elimination of the UHF discount for which an application is pending with the Commission or which have received Commission approval, but are not yet consummated, at that the time this NPRM is released. Further, we propose that any grandfathered ownership combination subsequently sold or transferred would be required to comply with the national ownership cap in existence at the time of the transfer." (Footnotes omitted.)

This NPRM is FCC 13-123 in MB Docket No. 13-236. See also, FCC release.

Proposed Rule Change. 47 C.F.R. § 73.3555(e) provides in part that "No license for a commercial television broadcast station shall be granted, transferred or assigned to any party (including all parties under common control) if the grant, transfer or assignment of such license would result in such party or any of its stockholders, partners, members, officers or directors having a cognizable interest in television stations which have an aggregate national audience reach exceeding thirty-nine (39) percent."

It further provides that "National audience reach means the total number of television households in the Nielsen Designated Market Areas (DMAs) in which the relevant stations are located divided by the total national television households as measured by DMA data at the time of a grant, transfer, or assignment of a license. For purposes of making this calculation, UHF television stations shall be attributed with 50 percent of the television households in their DMA market."

The proposed text would delete the last sentence.

Pai Dissent. FCC Commissioner Ajit Pai dissented. He wrote in his statement that "I agree with my colleagues that the time probably has come for the UHF discount to take its place in the history books".

"Nevertheless, I am dissenting from this morning’s Notice of Proposed Rulemaking (NPRM) for two reasons", said Pai. "First, I believe that we cannot modify the UHF discount without simultaneously reviewing the national audience cap, which currently stands at 39 percent." (Footnote omitted.)

And second, he urged that "any combination that is in existence or pending with the Commission as of the date the UHF discount rule is eliminated should be grandfathered".

Upton and Walden. Rep. Fred Upton (R-MI) and Rep. Greg Walden (R-OR) stated in a release this NPRM undermines economic stability and job growth.

They wrote that this NPRM "reveals a startling failure to recognize the chilling effect of regulatory uncertainty and a disregard for the potential economic consequences of commission action. Rather than following the good process of adopting new rules and then applying them prospectively, as we suggested in a letter to the Acting Chairwoman, the FCC instead will apply as yet undefined rules to applications filed anytime after today."

They explained that "The practical reality of this decision is that the commission has created a regulatory purgatory for broadcasters between now, September 26, 2013, and whenever it gets around to adopting new rules – potentially sidelining countless jobs and billions of dollars in new investment. The FCC sadly failed in the ultimate effort to pursue policies that promote our economy and create jobs."

See also, story titled "Rep. Upton and Rep. Walden Urge FCC to Apply Change to National Television Rule Prospectively Only" in TLJ Daily E-Mail Alert No. 2,600, September 12, 2013.

9/30. The U.S. Patent and Trademark Office (USPTO) announced in a statement that "In the event of a general government shutdown on October 1, 2013, the United States Patent and Trademark Office will remain open, using prior year reserve fee collections to operate as usual for approximately four weeks."

It added that "We continue to assess our fee collections compared to our operating requirements to determine how long we will be able to operate in this capacity during a general government shutdown." The USPTO added that "Should we exhaust these reserve funds before a general government shutdown comes to an end, USPTO would shut down at that time, although a very small staff would continue to work to accept new applications and maintain IT infrastructure, among other functions."

9/30. The Federal Trade Commission (FTC) released a document [10 pages in PDF] titled "Shutdown of Federal Trade Commission Operations Upon Failure of the Congress to Enact Appropriations".

The plan reflects that the FTC would put off what can be delayed, including by seeking extensions of court dates and deadlines, and use excepted employees to continue to perform what cannot be delayed. Hence, if the Congress does not enact a continuing resolution, this would not create opportunities to slip anticompetitive mergers past an empty FTC bound by Hart Scott Rodino (HSR) deadlines.

Some activities would be suspended. The plan states that the FTC "will not process FOIA requests; and does not anticipate engaging in rulemaking; dealing with ethics issues or, unless required to do so by reason of a court not continuing litigation deadlines, defending EEO or other suits against the agency; engaging in economic research; pursuing its on-going studies; issuing reports and guides; attending or conduct workshops, roundtables, hearings or conferences; or making its views known through letters or comments to other agencies."

It states that within one half day of expiration of appropriations, the FTC would have furloughed all employees, except those "1) performing work to address a threat to human life or property of such a nature that immediate action is necessary; 2) involved in the orderly shutdown of agency operations or otherwise performing duties where there is necessarily an implied authority to continue certain functions; or 3) otherwise allowed by operation of law."

The FTC plan states that about 253 of its 1,178 employees would be excepted, most under the threat to life or property exception.

Bureau of Competition. This plan states that FTC's Bureau of Competition's (BOC) Premerger Notification Office "will be open but very limited HSR staff will be excepted from furlough as necessary to accept new filings and to organize those filings."

However, the FTC construes broadly its authority to continue HSR operations during a shutdown. First, the plan states that employees are excepted if their work is necessarily implied by law. The FTC plan concludes that "Because the parties have a statutory right to file their Premerger Notification Reports, the Agencies have an implied responsibility to have adequate staff on hand to receive and promptly process the filings."

"To the extent that the circumstances of a reported merger or acquisition indicate that a failure by the government to challenge the transaction before it is consummated will result in a substantial impairment of the government’s ability to secure effective relief at a later time, the Commission will continue HSR investigations during the pendency of a shutdown."

But, "all non-merger investigations will be suspended during the pendency of a shutdown."

And as for matters in litigation, the FTC "will notify opposing parties and courts of the government shutdown, and request suspensions of dates for trials, hearings and filings, or similar relief to preserve the government’s claim".

The plan notes that "Should a court deny a Commission request for an extension due to the shutdown, the Commission’s failure to continue to pursue its claims or defenses in the litigation will be a substantial impairment of the government’s legal interests and may foreclose its ability to vindicate its position at a later date."

Consumer Protection. The plan states that "In the event of a shutdown, the Commission will seek continuances in all BCP cases in which preliminary relief has been obtained, as appropriate. Attorneys in those cases or where there is no plan to seek preliminary relief, will notify opposing parties and courts of the government shutdown, and request suspensions of dates for hearings and filings, as appropriate."

"Pending the responses from the courts (including non-responses), staff may have to continue working in order to meet upcoming deadlines and protect the Commission’s interests in the litigation. Excepting such staff from furlough is essential to protect the Commission's rights and interests in the litigation." (Parentheses in original.)

Other Bureaus and Offices. The plan states that up to 33 of the 114 Bureau of Economics staff "might be excepted from furlough to support on-going litigations if the courts do not grant requested extensions, which number includes the Director of BE and three front office employees to supervise the work."

In the Office of General Counsel, "The General Counsel, his principal Deputy, and up to one other attorney at any given time would be excepted from furlough to support excepted law enforcement personnel who would be working and to work with the Chairwoman and the Executive Director to manage the agency during the shutdown. As many as three additional attorneys, at any given time, from the Office of the General Counsel might be excepted from furlough to handle any emergency appeals that might need to be filed or handle pending cases where a motion for stay is denied."

The plan states that "as many as six employees will be exempted from furlough to continue to work to ensure the integrity and security of the agency’s IT infrastructure and its availability for use by exempt employees pursuing excepted and essential law enforcement actions during the shutdown".

Tech Law Journal publishes a free access web site and a subscription e-mail alert. The basic rate for a subscription to the TLJ Daily E-Mail Alert is $250 per year for a single recipient. There are discounts for subscribers with multiple recipients.

Free one month trial subscriptions are available. Also, free subscriptions are available for federal elected officials, and employees of the Congress, courts, and executive branch. The TLJ web site is free access. However, copies of the TLJ Daily E-Mail Alert are not published in the web site until two months after writing.

For information about subscriptions, see subscription information page.

Tech Law Journal now accepts credit card payments. See, TLJ credit card payments page.

TLJ is published by David Carney
Contact: 202-364-8882.
carney at techlawjournal dot com
3034 Newark St. NW, Washington DC, 20008.

Privacy Policy
Notices & Disclaimers
Copyright 1998-2013 David Carney. All rights reserved.

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

The Senate will meet at 2:00 PM.

The Supreme Court will hold its opening conference for its October Term 2013.

10:00 AM - 12:30 PM. The Federal Communications Commission (FCC) will hold a hearing in its incentive auctions rulemaking proceeding. This hearing will address reimbursable costs of broadcasters and MVPDs, and cost mitigation. See, Paragraphs 334-354 of the FCC's September 28, 2012 Notice of Proposed Rulemaking [205 pages in PDF] (FCC 12-118 in GN Docket No. 12-268), and the FCC's September 23, 2013 FNPRM (DA 13-1954 in GN Docket No. 12-268) titled "Public Notice". See also, story titled "FCC Seeks Comments on Reimbursable Broadcaster and MVPD Costs" in TLJ Daily E-Mail Alert No. 2,605, September 26, 2013. Open to the public. Webcast. See, FCC September 23, 2013 Public Notice (DA 13-1955 in GN Docket No. 12-268) with meeting agenda. Location: FCC, Commission Meeting Room, TW-C305, 445 12th St., SW.

11:30 AM. The Library of Congress (LOC) will host a lecture by Orin Kerr (George Washington University law school, on leave at the LOC) on his article [SSRN] titled "The Next Generation Communications Privacy Act". It proposes an overhaul of the Electronic Communications Privacy Act (ECPA). See, notice. Location: LOC, Madison Building, Montpelier Room, 6th floor, 101 Independence Ave., SE.

12:00 NOON. The filing window opens for the Federal Communications Commission's (FCC) Auction 902, the Tribal Mobility Fund Phase I support reverse auction. See, the FCC's September 25, 2013 Public Notice (DA 13-1978 in AU Docket No. 13-53).

4:00 PM. The House Judiciary Committee's (HJC) Subcommittee on Regulatory Reform, Commercial, and Antitrust Law will hold a hearing titled "The Office of Information and Regulatory Affairs: Federal Regulations and Regulatory Reform". The witnesses will be Boyden Gray, Sally Katzen (NYU School of Law), John Morrall (Geroge Mason University), and Nicole Riley (National Federation of Independent Business). Webcast. See, notice. Location: Room 2141, Rayburn Building.

Deadline to submit comments to the Department of Commerce's (DOC) Census Bureau regarding its proposal to collect data for its Current Population Survey (CPS) via e-mail. The CPS is used by the Bureau of Labor Statistics (BLS) to prepare monthly reports on employment and unemployment. Some economists argue that the current questionnaire and survey methods produce inaccurate estimates. The DOC's notice in the Federal Register (FR) requesting comments states that "Over the last few years, CPS, like many surveys, has seen response rates declining slowly", in part because "interviewers are unable to make contact with the respondent See, FR, Vol. 78, No. 146, July 30, 2013, at Pages 45910-45911.

EXTENDED TO DECEMBER 4. Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Further Notice of Proposed Rulemaking (FNPRM) regarding whether the FCC should "require apparatus manufacturers to ensure that their apparatus synchronize the appearance of closed captions with the display of the corresponding video". This FNPRM is FCC 13-84 in MB Docket No. 11-154. The FCC adopted this item on June 13, 2013, and released the text on June 14. See, original notice in the Federal Register, Vol. 78, No. 127, July 2, 2013, at Pages 39691-39698. See also, Public Notice (DA 13-1785) extending deadlines, and extension notice in the Federal Register, Vol. 78, No. 172, September 5, 2013, at Page 54612. See also, story titled "FCC Again Addresses Closed Captioning Mandates for Video Programming Delivered Using IP" in TLJ Daily E-Mail Alert No. 2,578, June 17, 2013.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) regarding spectrum allocations for space related purposes. This NPRM makes two alternative proposals to modify the Allocation Table to provide interference protection for Fixed-Satellite Service (FSS) and Mobile Satellite Service (MSS) earth stations operated by federal agencies under authorizations granted by the National Telecommunications and Information Administration (NTIA) in certain frequency bands. This NPRM also proposes to amend a footnote to the Allocation Table to permit a Federal MSS system to operate in the 399.9-400.05 MHz band, and makes alternative proposals to modify the Allocation Table to provide access to spectrum on an interference protected basis to FCC licensees for use during the launch of launch rockets. This item is FCC 13-65 in ET Docket No. 13-115. The FCC adopted and released this item on May 9, 2013. See, notice in the Federal Register, Vol. 78, No. 126, July 1, 2013, at Pages 39200-39232.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Further Notice of Proposed Rulemaking (FNPRM) [38 pages in PDF] regarding speech to speech relay service by persons with speech disabilities. This FNPRM is FCC 13-101 in CG Docket Nos. 08-15 and 03-123. The FCC adopted and released this FNPRM on July 19, 2013. See, Federal Register, Vol. 78, No. 158, August 15, 2013, at Pages 49717-49720.

Deadline to submit reply comments to the Federal Communications Commission (FCC) that refresh the FCC's record regarding property records for rate of return carriers. See, notice in the Federal Register, Vol. 78, No. 157, August 14, 2013, at Pages 49420-49422. See also, the FCC's order [127 pages in PDF] titled "Memorandum Opinion and Order and Report and Order and Further Notice of Proposed Rulemaking and Second Further Notice of Proposed Rulemaking", which is also known as the US Telecom Forbearance Long Order. The FCC adopted that order on May 10, 2013, and released it on May 17. It is FCC 13-69 in WC Docket No. 12-61, CC Docket Nos. 00-199 and 99-301, and numerous other dockets. And see, the FCC's July 23, 2013 Public Notice (DA 13-1617).

Deadline to submit initial comments to the Federal Communications Commission (FCC) regarding Mobile Relay Associates' (MRA) request for waiver of Sections 2.106 and 90.35 of the FCC's rules to to operate on frequency pairs 462/467.5375 MHz and 462/467.7375 MHz at multiple locations in the Los Angeles, Denver, Las Vegas, and Miami metropolitan areas. See, FCC's August 29, 2013 Public Notice (DA 13-1838 in WT Docket No. 13-212).

Deadline to submit comments to the Federal Communications Commission (FCC) regarding CenturyLink's August 12, 2013 application, pursuant to 47 U.S.C. § 214 and 47 C.F.R. § 63.71, to discontinue certain Integrated Service Digital Network-Primary Rate Interface (ISDN-PRI) domestic telecommunications services in the states of Florida, Indiana, Kansas, Minnesota, Missouri, Nebraska, Nevada, New Jersey, North Carolina, Ohio, Oregon, Pennsylvania, South Carolina, Tennessee, Texas, Virginia, Washington and Wyoming. See, FCC's August 30, 2013 Public Notice (DA 13-1851 in WC Docket No. 13-211).

Deadline to submit initial comments to the Federal Communications Commission (FCC) regarding DISH Network Corporation's September 9, 2013 Petition for Waiver and Request Extension of Time [22 pages in PDF] regarding the FCC's AWS-4 rules applied to offering terrestrial broadband service. See, FCC's September 13, 2013 Public Notice (DA 13-1877 in WT Docket No. 13-225) and notice in the Federal Register, Vol. 78, No. 188, September 27, 2013, at Pages 59633-59635.

Deadline to submit nominations to the U.S. Patent and Trademark Office (USPTO) for membership on its Trademark Public Advisory Committee (TPAC). See, USPTO release, and notice in the Federal Register, Vol. 78, No. 156, August 13, 2013, at Pages 49260-49262.

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 - 5:00 PM. Day one of a three day event hosted by the Department of Commerce's (DOC) National Institute of Standards and Technology (NIST) titled "Intersection of Cloud and Mobility Forum and Workshop". Open to the public. Registration required. See, notice in the Federal Register, Vol. 78, No. 171, September 4, 2013, at Page 54453. See also, story titled "NIST to Hold Workshop on Cloud Computing and Mobility" in TLJ Daily E-Mail Alert No. 2,594, September 3, 2013. Location: NIST, Red Auditorium, 100 Bureau Drive, Gaithersburg, MD.

10:00 AM - 3:00 PM. The Federal Communications Commission (FCC) will host an event titled "Cybersecurity Next Generation Technology Forum". The focus of this event is "safeguarding children on the Internet". See, FCC's September 27, 2013 notice, with agenda and list of speakers. Location: FCC, Commission Meeting Room, TW-C305, 445 12th St., SW.

10:30 AM. The House Commerce Committee's (HCC) Subcommittee on Communications and Technology (SCT) will hold a hearing titled "Changes and Opportunities in the 5GHz Spectrum Band". The witnesses will be Julius Knapp (Chief of the FCC's Office of Engineering and Technology), Bob Friday (Cisco), John Kenney ( Toyota Info Technology Center), and Tom Nagel (Comcast). See, notice. Location: Room 2123, Rayburn Building.

12:00 NOON - 1:30 PM. The Information Technology and Innovation Foundation (ITIF) will host a panel discussion titled "Has the NSA Won the Crypto Wars?". The speakers will be Kevin Bankston (Center for Democracy and Technology), Daniel Castro (ITIF), Alan Davidson (CDT, on leave at Massachusetts Institute of Technology), and Amie Stepanovich (Electronic Privacy Information Center). Free. Open to the public. Lunch will be served. See, notice. Location: ITIF/ITIC, Suite 610A, 1101 K St., NW.

2:15 PM. The Senate Foreign Relations Committee (SFRC) will hold a business meeting. The agenda includes consideration of the nomination of Caroline Kennedy to be Ambassador to Japan. Location: Room S-116, Capitol Building.

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

Opening of the Federal Communications Commission's (FCC) filing window for Form 323, titled "Ownership Form for Commercial Broadcast Station". See, FCC's September 27, 2013 Public Notice (DA 13-1999). See also, FCC's August 6, 2013 Order (DA 13-1710 in MB Docket No. 07-294). This biennial mandate, which applies to all commercial AM, FM, TV, LPTV, and Class A stations, and entities with attributable interests, pertains to the FCC's outdated and obsolete regime for regulating media ownership.

9:30 AM - 3:30 PM. The Federal Communications Commission (FCC) will host an event titled "Workshop" regarding mobile device location surveillance capabilities and precision. See, FCC Public Notice (DA 13-1873 in PS Docket No. 07-114) and FCC September 27, 2013 Public Notice (DA 13-2000 in PS Docket No. 07-114). See also, stories titled "FCC Seeks Comments on Mobile Device Location Surveillance Capabilities" in TLJ Daily E-Mail Alert No. 2,598, September 10, 2013, and "California House Democrats Urge FCC to Amend Phone Location Detection Rules" in TLJ Daily E-Mail Alert No. 2,600, September 12, 2013. Location: FCC, Commission Meeting Room, Room TW-C305, 445 12th St., SW.

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 - 5:00 PM. Day two of a three day event hosted by the Department of Commerce's (DOC) National Institute of Standards and Technology (NIST) titled "Intersection of Cloud and Mobility Forum and Workshop". Open to the public. Registration required. See, notice in the Federal Register, Vol. 78, No. 171, September 4, 2013, at Page 54453. See also, story titled "NIST to Hold Workshop on Cloud Computing and Mobility" in TLJ Daily E-Mail Alert No. 2,594, September 3, 2013. Location: NIST, Red Auditorium, 100 Bureau Drive, Gaithersburg, MD.

10:00 AM. The Senate Judiciary Committee (SJC) will hold a hearing titled "Continued Oversight of the Foreign Intelligence Surveillance Act". The witnesses will be James Clapper (Director of National Intelligence) and Keith Alexander (Director of the National Security Agency). Webcast. See, notice. Location: Room 226, Dirksen Building.

10:00 AM. The Senate Homeland Security and Governmental Affairs Committee (SHSGAC) will hold a hearing on the nomination of Beth Cobert to be Deputy Director of the EOP's Office of Management and Budget (OMB). See, notice. Location: Room 342, Dirksen Building.

12:00 NOON. Deadline to submit requests to make a two minute oral presentation at the teleconference of the President's Council of Advisors on Science and Technology (PCAST) brief public meeting on cyber security on October 7. See, notice in the Federal Register, Vol. 78, No. 186, September 25, 2013, Page 59013.

12:00 NOON - 2:30 PM. The Federalist Society will host a panel discussion titled "Supreme Court Preview: What Is in Store for October Term 2013?". The speakers will be Megan Brown (Wiley Rein), Michael Carvin (Jones Day), Neal Katyal (Georgetown University Law Center), Nicholas Rosenkranz (Georgetown University Law Center), and Jan Crawford (CBS News). Prices vary. Lunch will be served. See, notice. Location: National Press Club, 529 14th St., NW.

12:00 NOON - 2:00 PM. The DC Bar Association (DCBA) will host a panel discussion titled "Cutting Edge FOIA Issues, Privacy and Civil Liberties". The DCBA notice states that "Open government issues raised by National Security Agency surveillance programs also will be discussed." The speakers will be Melanie Ann Pustay (Department of Justice), Adina Rosenbaum (Public Citizen), Elizabeth Shapiro (DOJ), Thomas Susman, and Edwin Huddleson. The price to attend ranges from $5 to $20. No webcast. No CLE credits. For more information, call 202-626-3463. The DC Bar has a history of barring reporters from its events. Location: DC Bar Conference Center, 1101 K St., NW.

6:00 - 8:15 PM. The Federal Communications Bar Association (FCBA) will host an event titled "Tolling Agreements, Consent Decrees, and Other Mileposts Along the FCC Enforcement Highway". The deadline to register of 12:00 NOON on Tuesday, October 1. CLE credits. Prices vary. No webcast. See, notice. Location: Arnold & Porter, 555 12th St., NW.

Deadline to submit reply comments to the Federal Communications Commission's (FCC) Media Bureau (MB) in response to its June 25, 2013 Public Notice (PN) [6 pages in PDF] regarding video description of video programming that is delivered via both television and the internet. This PN is DA 13-1438 in MB Docket No. 11-43. See also, notice in the Federal Register, Vol. 78, No. 129, July 5, 2013, at Pages 40421-40424.

9:00 AM - 12:30 PM. Day one of a three day event hosted by the Department of Commerce's (DOC) National Institute of Standards and Technology (NIST) titled "Intersection of Cloud and Mobility Forum and Workshop". Open to the public. Registration required. See, notice in the Federal Register, Vol. 78, No. 171, September 4, 2013, at Page 54453. See also, story titled "NIST to Hold Workshop on Cloud Computing and Mobility" in TLJ Daily E-Mail Alert No. 2,594, September 3, 2013. Location: NIST, Red Auditorium, 100 Bureau Drive, Gaithersburg, MD.

10:00 AM. The Senate Judiciary Committee (SJC) will hold an executive business meeting. The agenda again includes consideration of S 42 [LOC | WW], the "Criminal Antitrust Anti-Retaliation Act of 2013". This bill would prohibit retaliation against a whistleblower because he reported to the federal government what he reasonably believes to be a violation of the antitrust laws. The agenda also again includes consideration of numerous judicial nominees: Judge Robert Wilkins (to be a Judge of the U.S. Court of Appeals (DCCir)), James Donato (USDC/NDCal), Beth Freeman (USCD/NDCal), Brian Davis (USDC/MDFl), Timothy Brooks (USDC/WDArk), and Pedro Delgado Hernandez (USDC/DPR). The Pillard nomination is part of President Obama's plan to pack the DC Circuit. See, story titled "Obama Launches Effort to Pack the DC Circuit" in TLJ Daily E-Mail Alert No. 2,570, June 4, 2013. Webcast. Location: Room 226, Dirksen Building.

10:00 - 11:00 AM. The Heritage Foundation (HF) will host an event titled "What Japan Can Gain from Sound Innovation". The speakers will be Masazumi Ishii (Managing Director of AZCA, Inc.), Derek Scissors (American Enterprise Institute), and Walter Lohman (HF). Free. Open to the public. Webcast. See, notice. Location: HF, 214 Massachusetts Ave., NE

11:00 AM. The Senate Commerce Committee (SCC) will hold an executive session to vote on pending nominations, including Michael O'Rielly (FCC Commissioner), Terrell McSweeny (FTC Commissioner), and Jo Handelsman (Associate Director for Science in the EOP's Office of Science and Technology Policy). Webcast. See, notice. Location: Room 253, Russell Building.

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

2:30 PM. The Federal Trade Commission's (FTC) Bureau of Economics will host a presentation titled "Reputations in Repeated Games". See, paper with the same title. The speaker will be a co-author, Larry Samuelson (Yale). The paper is 86 pages of game theory. Government agencies often regulate without regard for the role played by reputation in protecting consumers and investors. For more information, contact Christopher Metcalf at cmetcalf at ftc dot gov. Location: FTC, 601 New Jersey Ave., NW.

Deadline to submit comments to the National Telecommunications and Information Administration (NTIA) in response to its Notice of Inquiry (NOI) regarding its proposed spectrum monitoring pilot program. The NTIA stated in its notice in the Federal Register (FR) that this program, if funded and implemented, would "develop and deploy a prototype system to monitor spectrum usage in up to ten metropolitan areas". See, FR, Vol. 78, No. 160, August 19, 2013, at Pages 50399-50401.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Further Notice of Proposed Rulemaking (FNPRM) regarding its public safety Travelers' Information Stations (TIS) rules, under which Public Safety Pool (PSP) eligible entities transmit noncommercial travel related information over AM band frequencies to motorists on a localized basis. The FCC adopted this item on July 18, 2013, and released it on July 23. It is FCC 13-98 in PS Docket No. 09-19. See, notice in the Federal Register, Vol. 78, No. 160, August 19, 2013, at Pages 50370-50372. See also, August 20 Public Notice (DA 13-1784).

Deadline to file post-hearing briefs and statements with the U.S. International Trade Commission (USITC) regarding its 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.

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

9:00 AM - 4:30 PM. The Privacy and Civil Liberties Oversight Board (PCLOB) will hold a hearing. This hearing will address surveillance programs conducted pursuant Section 215 of the USA PATRIOT Act and Section 702 of Foreign Intelligence Surveillance Act (FISA). Free. Open to the public. For more information, contact Susan Reingold at 202-331-1986 or info at pclob dot gov. See, notice in the Federal Register, Vol. 78, No. 179, September 16, 2013, at Pages 56951-56952. See also, story titled "PCLOB Schedules Hearing and Comments Deadline Regarding Sections 215 and 702 Surveillance" in TLJ Daily E-Mail Alert No. 2,601, September 16, 2013. Location: Mayflower Hotel, 1127 Connecticut Ave., NW.

12:00 NOON. Deadline to register to listen to the teleconference of the President's Council of Advisors on Science and Technology (PCAST) brief public meeting on cyber security on October 7. This is also the deadline to submit written comments. See, notice in the Federal Register, Vol. 78, No. 186, September 25, 2013, Page 59013.

11:59 PM. Extended deadline to submit comments to the National Institute of Standards and Technology's (NIST) Request for Information on Computer Security Incident Coordination. See, notice in the Federal Register, Vol. 78, No. 183, September 20, 2013, at Pages 57839-57840.

Deadline to submit comments to the National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) regarding its draft SP 800-101 Rev. 1 [85 pages in PDF] titled "Guidelines on Mobile Device Forensics".

Deadline to submit comments to the National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) regarding its draft NIST IR 7946 [41 pages in PDF] titled "CVSS Implementation Guidance". CVSS is Common Vulnerability Scoring System.

Deadline to submit comments to the Federal Trade Commission (FTC) regarding the agreement [11 pages in PDF] that contains a proposed consent order in its Section 5 administrative proceeding against TRENDnet. See, story titled "FTC Brings and Settles Case Alleging Lax Security for IP Based Home Monitoring Camera System" in TLJ Daily E-Mail Alert No. 2,597, September 9, 2013. See also, notice in the Federal Register, Vol. 78, No. 176, September 11, 2013, at Pages 55717-55719.

Deadline to file reply submissions with the U.S. International Trade Commission (USITC) in its Section 337 exclusion proceeding initiated by InterDigital Communications against Huawei, Futurewei, Nokia and ZTE involving 3G wireless devices. The administrative law judge filed his determination on June 28, 2013 finding no violation of Section 337. The USITC then decided to review this determination in its entirety. It seeks comments on whether establishing a domestic industry based on licensing under 19 U.S.C. § 1337 (a)(3)(C) requires proof of ``articles protected by the patent´´, and if so, whether there is evidence in the record that establishes articles protected by the asserted patents. See, notice in the Federal Register, Vol. 78, No. 175, September 10, 2013, at Pages 55294-55296.

Deadline to submit comments to the Office of the U.S. Trade Representative (OUSTR) regarding the proposed participation of Paraguay and Liechtenstein in the Trade in Services Agreement (TISA) negotiations. See, notice in the Federal Register, Vol. 78, No. 174, September 9, 2013, at Pages 55135-55136.

Day one of a four day event hosted by the George Mason University law school and the American Bar Association's (ABA) Section of Antitrust Law titled "Antitrust Law and Economics Institute". See, notice. For more information, call Kayla Lahti at 703-993-8008. Location: GMU law school, 3301 Fairfax Drive, Arlington, VA.

9:00 AM - 5:00 PM. Day one of a five day meeting of the Federal Aviation Administration's (FAA) RTCA Special Committee 159, Global Positioning Systems. See, notice in the Federal Register, Vol. 78, No. 182, September 19, 2013, at Pages 57672-57673. Location: RTCA, Inc., Suite 910, 1150 18th St., NW.

11:00 AM. The Supreme Court will hear oral argument in Chadbourne & Parke v. Troice (Sup. Ct. No. 12-79), Willis or Colorado v. Troice (Sup. Ct. No. 12-86), and Proskauer Rose v. Troice (Sup. Ct. No. 12-88), cases involving the Securities Litigation Uniform Standards Act of 1998 (SLUSA). See, question presented, and Supreme Court October calendar.

12:15 - 1:30 PM. The Federal Communications Bar Association's (FCBA) Intellectual Property Committee will host a brown bag lunch titled "Copyright Policy, Creativity, and Innovation in the Digital Economy". The speakers will be Shira Perlmutter (USPTO) and John Morris (National Telecommunications and Information Administration). Free. No CLE credits. No webcast. Location: Wilkinson Barker Knauer, Suite 700, 2300 N St., NW.

12:30 - 5:00 PM. The Department of Commerce's (DOC) National Telecommunications and Information Administration (NTIA) will host an event titled "ConnectED Workshop". See, notice in the Federal Register, Vol. 78, No. 176, September 11, 2013, Pages 55684-55685. It states that participants will "discuss the growing bandwidth needs of K-12 schools as more schools use mobile devices to enrich the learning experience; as teachers increasingly integrate Web video and other digital content into the curriculum; and as classroom management software tools move everything from homework assignments to testing into the cloud". Location: American Institute of Architects, 1735 New York Ave., NW.

4:00 - 4:30 PM. The President's Council of Advisors on Science and Technology (PCAST) will hold a brief public meeting by teleconference. The sole item on the agenda is a PCAST report on cyber security. The deadline to register is 12:00 NOON on October 4, 2013. See, notice in the Federal Register, Vol. 78, No. 186, September 25, 2013, Page 59013.

Day two of a four day event hosted by the George Mason University law school and the American Bar Association's (ABA) Section of Antitrust Law titled "Antitrust Law and Economics Institute". See, notice. For more information, call Kayla Lahti at 703-993-8008. Location: GMU law school, 3301 Fairfax Drive, Arlington, VA.

Deadline to submit comments to the Department of Commerce's (DOC) Bureau of Industry and Security's (BIS) regarding extension of its foreign policy based export control regulations. See, notice in the Federal Register, Vol. 78, No. 172, September 5, 2013, at Pages 54623-54625.

Deadline to submit reply comments to the Federal Communications Commission's (FCC) Office of Engineering and Technology (OET) regarding the request of the Laboratory Accreditation Bureau (LAB) for accreditation by the FCC. See, FCC's August 23, 2013 Public Notice (DA 13-1795 in ET Docket No. 13-208).

Deadline to submit to the Federal Communications Commission (FCC) oppositions to petitions to deny AT&T's planned acquisition of Leap Wireless. See, FCC August 28, 2013 Public Notice (DA 13-1831 in WT Docket No. 13-193). See also, the FCC's Office of General Counsel's (OGC) web page for this merger review.

Deadline to submit reply comments to the Federal Communications Commission (FCC) regarding Purple Communications' July 11, 2013 Emergency Petition for Limited Waiver [6 pages in PDF], in connection with FCC's VRS reform order, due to other providers of IP Relay service exiting the IP Relay marketplace. See, Report and Order and Further Notice of Proposed Rulemaking [160 pages in PDF] adopted on June 7, 2013, and released on June 10, 2013. It is FCC in 13-82 in CG Docket Nos. 10-51 and 03-123. See, also the FCC's August 27, 2013 Public Notice (DA 13-1814), and notice in the Federal Register, Vol. 78, No. 176, September 11, 2013, at Pages 55696-55697.