TLJ News from August 21-25, 2007

Solicitor General Urges Supreme Court to Take Case Regarding Patent Exhaustion Doctrine

8/24. The Office of the Solicitor General (OSG) filed an amicus curiae brief with the Supreme Court of the U.S. (SCUS) in Quanta Computer v. LG Electronics urging the SCUS to grant certiorari and clarify the patent exhaustion doctrine.

The U.S. Court of Appeals (FedCir) issued its opinion [31 pages in PDF] on July 7, 2006.

The SCUS requested the OSG to submit an amicus brief on April 16, 2007. See, story titled "Supreme Court Requests Solicitor General Brief in Patent Case" in TLJ Daily E-Mail Alert No. 1,566, April 17, 2007. The SCUS has not yet decided whether or not to take the case. See also, SCUS docket.

The OSG wrote in its brief that the question presented is "Whether a patentee's federal patent rights are exhausted by a licensee's authorized sale of an essential component that has no reasonable use other than in practicing the patented invention, when the patentee has purported to retain in its licensing agreement the right to pursue patent infringement claims against those who purchase the component from the licensee and use it for its only reasonable use."

It wrote that "The doctrine of patent exhaustion, also known as the first-sale doctrine, ... has evolved in the Federal Circuit in a manner that appears to conflict with this Court's patent-exhaustion cases, thereby creating uncertainty as to when a patentee may enforce, through federal-court actions for patent infringement (as opposed to state-law contract actions), downstream limitations on purchasers following an authorized sale. Whatever rights a patentee may have to enforce such limitations as a matter of contract, the question whether a patentee may invoke federal patent law to enforce such limitations against authorized purchasers is one of considerable practical importance, and this case presents an adequate vehicle for addressing that question." (Parentheses in original.)

This case is Quanta Computer, Inc., et al. v. LG Electronics, Inc., Supreme Court of the U.S., Sup. Ct. No. 06-937, a petition for writ of certiorari to the U.S. Court of Appeals for the Federal Circuit, App. Ct. Nos. 05-1261, 05-1262, 05-1263, 05-1264, 05-1302, 05-1303, and 05-1304. Judge Mayer wrote the opinion of the Court of Appeals, in which Judges Michel and Newman joined. The Court of Appeals heard appeals from the U.S. District Court for the Northern District of California, Judge Claudia Wilkin presiding.

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8/24. The Department of Commerce's (DOC) National Telecommunications and Information Administration (NTIA) announced that it will host a series of workshops in Dallas, Denver, Newark, and Los Angeles regarding its Public Safety Interoperable Communications (PSIC) Grant Program. See, NTIA notice, and stories titled "NTIA Clarifies Deadlines for PSIC Grant Applications" in TLJ Daily E-Mail Alert No. 1,625, August 21, 2007, and "Public Safety Interoperable Communications Grant Applications Due in 30 Days" in TLJ Daily E-Mail Alert No. 1,612, July 19, 2007. The NTIA will hold the following workshops:
 • September 24, Dallas, Texas.
 • September 26, Denver, Colorado
 • September 28, Newark, New Jersey
 • October 1, Los Angeles, California.

8/24. The Federal Communications Commission (FCC) published a notice in the Federal Register that announces, summarizes, and sets the effective date (October 23, 2007 for most provisions) for its 700 MHz Band order. See, Federal Register, August 24, 2007, Vol. 72, No. 164, at Pages 48813-48868. See also, story titled "FCC Adopts 700 MHz Band Order" in TLJ Daily E-Mail Alert No. 1,619, July 31, 2007, and story titled "FCC Sets Date for 700 MHz Auction" in TLJ Daily E-Mail Alert No. 1,624, August, 20, 2007.

8/24. The U.S. Court of Appeals (7thCir) issued its opinion in Airborne Beepers v. AT&T Mobility, affirming the District Court's dismissal with prejudice of the third amended complaint. Back in 1997 Airborne entered into an Authorized Dealer Agreement with Southwestern Bell Mobile Systems, Inc., which then did business under the name Cellular One-Chicago. Southwestern Bell became part of Cingular Wireless, which was later acquired by AT&T. The agreement has long since expired. This case is Airborne Beepers & Video, Inc. v. AT&T Mobility LLC, U.S. Court of Appeals for the 7th Circuit, App. Ct. No. 06-2949.

8/24. The U.S. Court of Appeals (10thCir) issued its opinion [25 pages in PDF] in Penncro Associates v. Sprint Spectrum, a contract dispute between a telecommunications company and its debt collector. Penncro contracted with Sprint to collect debts. Penncro filed a complaint in U.S. District Court (DKan) alleging breach of the contract. This District Court entered judgment for Penncro in the amount of $17 Million. Sprint appealed, arguing that the damages award was too high because the District Court misconstrued the term "consequential damages" in the contract. Penncro cross-appealed, arguing that the damages award should have been higher. The Court of Appeals affirmed the District Court on all issues. This case is Penncro Associates v. Sprint Spectrum L.P., U.S. Court of Appeals for the 10th Circuit, App. Ct. Nos. 06-3288, 06-3296, and 06-3365, appeals from the U.S. District Court for the District of Kansas, D.C. No. 04-CV-2549-JWL.

8/24. The Motion Picture Association of America (MPAA) announced in a release [PDF] that the Beijing Xi Cheng District People's Court, in Beijing, People's Republic of China (PRC), "ruled that a pair of DVD retail outlets, the Beijing Yongsheng Century International Cultural Co., Ltd. (Beijing Yongsheng Century) and its Century En Ze branch, were guilty of copyright infringement for selling pirated versions of Motion Picture Association (MPA) member company movies" and were ordered to pay six plaintiffs -- all MPA member companies -- damages and costs of RMB210,314 (US$27,795)." (All parentheses in original.) The MPA's Frank Rittman stated in this release that "the court's award represents little more than a slap on the wrist in the context of the scope of pirate activity in which Beijing Yongsheng Century and others were and are engaged." He added the lack of market access further contributes to DVD piracy.

8/24. The Federal Communications Commission's (FCC) Office of General Counsel (OGC) and the Department of Justice (DOJ) filed their brief [65 pages in PDF] with the U.S. Court of Appeals (DCCir) in Biggerstaff v. FCC, petitions for review of final orders of the FCC pertaining to the FCC's junk fax rules and the established business relationship exception. This case is Robert Biggerstaff, et al. v. FCC and USA, U.S. Court of Appeals for the District of Columbia, App. Ct. Nos. 06-1191, 06-1192, and 06-1251.

7th Circuit Affirms Dismissal of Data Breach Case

8/23. The U.S. Court of Appeals (7thCir) issued its opinion [21 pages in PDF] in Pisciotta v. Old National Bancorp, a case regarding civil liability of companies that suffer data breaches. See, full story.

AltLaw.org Puts Federal Opinions on Web in Searchable Form

8/23. Law professors Stuart Sierra (Columbia), Paul Ohm (University of Colorado), and Timothy Wu (Columbia) have launched a database of web-searchable federal court opinions. Its name and URL is AltLaw.org.

The three provide the service without charge. The database currently includes 167,143 opinions of the Supreme Court of the U.S. (SCUS), the eleven regional Courts of Appeals, and the Federal Circuit.

Currently, for most of these courts, opinions are available from the mid 1990s through early April of 2007. TLJ spoke with Ohm. He said that AltLaw.org will soon make available recent opinions. He expects opinions to be available within 24 hours of publication by the courts. The professors utilize software that automatically downloads opinions from the web sites of the courts.

Pursuant to the SCUS's holdings in Banks v. Manchester 128 U.S. 244 (1888) and Wheaton v. Peters, 33 U.S. (8 Pet.) 591 (1834), these opinions are in the public domain.

For further discussion of copyright, public domain, court opinions, statutes, and incorporation by reference of model codes, see:

The service does not now publish citation numbers published by Thomson's West Publishing Company. Nor can users search by West citations. Ohm stated that the three hope to add this. He added that he has not yet examined the copyright or proprietary rights implications of this.

Their software assigns a unique numerical identifier to every opinion added to the database. However, users cannot search for opinions, or other opinions that cite the opinions, by using these numbers. The service has no function that is equivalent to Shepardization.

The professors are using mostly free open source software, or code written by Sierra, to operate the web site. They are using Lucene, a text search engine library written entirely in Java. Ohm wrote the code that downloads the opinions.

The service is free. Moreover, Ohm said that the three professors hope that others will expand on what they have done. He commented that they would provide their 13 gigabyte database of opinions to others for free. For example, he suggested that someone might develop a web based service that allows users to comment on opinions.

The service has some drawbacks. The downloading of opinions, conversion to HTML, and addition to the database is done automatically. There is no proofreading by people. Most court opinions are published in PDF. The conversion of some opinions to HTML incorrectly renders some letters with symbols that are not a part of the Roman alphabet. Also, with many opinions, the software does not identify the case name. Hence, many opinions are titled in search results by their AltLaw.org identification number, rather than by the names of the parties.

There is no advertising on AltLaw.org.

1st Circuits Rules Again on Arbitration Clauses in Comcast's Agreements with Customers

8/23. The U.S. Court of Appeals (1stCir) issued its opinion in Anderson v. Comcast, a case regarding a class action plaintiff's efforts to avoid the arbitration provisions in Comcast agreements with it customers. The Court of Appeals held that the action is subject to arbitration, and sent most, but not all issues regarding the arbitration agreement to the arbitrator. However, the Court of Appeals held invalid and severed the agreements' one year limitation period.

Carl Anderson, and other cable television service customers of Comcast owned cable ready televisions or video cassette recorders, but nevertheless leased cable converter boxes from, and paid monthly fees therefor, to Comcast.

Comcast entered into agreements with its customers that includes broad arbitration language. First, it provides that "IF WE ARE UNABLE TO RESOLVE INFORMALLY ANY CLAIM OR DISPUTE RELATED TO OR ARISING OUT OF THIS AGREEMENT OR THE SERVICES PROVIDED, WE HAVE AGREED TO BINDING ARBITRATION ..."

Second, it provides that customers must contact Comcast within a year of injury or waive any claim based on that injury. Third, it requires that customers pay certain costs of arbitration, including customers' attorney's fees. Fourth, it precludes arbitration on a class action basis. Fifth, it denies customers who prevail in arbitration multiple or punitive damages. Finally, the agreement severs any terms that conflict with applicable law.

The Court of Appeals held last year in Kristian v. Comcast [1stCir | AltLaw] that specific provisions of Comcast's arbitration agreement had to be severed from the underlying agreement because they prevented its customers from vindicating rights in the arbitral forum provided for in state and federal antitrust statutes. That opinion is also reported by Thomson's West at 446 F.3d 25.

Anderson filed a class action complaint in state court in Massachusetts against Comcast Corporation and others related companies alleging violation of Chapter 93A of the Massachusetts Consumer Protection Act, as well as common law tort and contract claims. This appeal pertains to the Chapter 93A claim.

Chapter 93A creates a private right of action for consumers who have been injured as a result of unfair methods of competition or unfair or deceptive acts or practices in the conduct of any trade or commerce.

Anderson alleged that the unfair or deceptive practices involved federal statutes and regulations. First, he alleged that Comcast violated the federal Communications Act's requirement, which is codified at 47 U.S.C. § 543(f), that a "cable operator shall not charge a subscriber for any service or equipment that the subscriber has not affirmatively requested by name". Second, he alleged that Comcast violated the regulation promulgated pursuant to the Communications Act, which is codified at 47 C.F.R. § 76.630(a), that requires cable providers to unscramble their basic programming signals so they can be received by customers with cable ready equipment.

Comcast removed the action to the U.S. District Court (DMass) based upon diversity of citizenship of the parties.

Comcast then moved to compel arbitration of all claims. Anderson opposed the motion.

The District Court granted the motion to compel arbitration, but first held that the agreement's provisions barring attorney's fees, class actions, and multiple damages were invalid and severed as they related to Anderson's Chapter 93A claim. The District Court also held that the arbitrator had authority to determine whether the agreement's limitations period prevented Anderson from vindicating his statutory claim under Chapter 93A.

Comcast brought the present appeal to contest the holdings as to class actions and multiple damages. Anderson cross-appealed, arguing that the entire arbitration agreement is unconscionable and unenforceable. He also challenged the holding at to time limitation, arguing that Chapter 93A's four year limitation should apply.

The Court of Appeals stated that arbitration agreements are generally enforceable, but "One of the ``narrow circumstances´´ that might raise a question of arbitrability involves an allegation by a party to an arbitration agreement that some of the terms in an arbitration agreement conflict with a statutory right that is not waivable by contract. If that claim withstands analysis, the court will have to decide whether the conflict precludes enforcement of the arbitration agreement."

The Court of Appeals held in this case that a bar on class arbitration is not in conflict with a statutory right. Thus, it held that class representation is a question for the arbitrator, not the District Court.

The Court of Appeals held that the agreement's limitations period is invalid as it relates to Anderson's Chapter 93A claim. The Court of Appeals thus vacated the District Court as to compelling arbitration of the applicability of the contractual limitations period.

The Court of Appeals also reversed the District Court as to multiple damages awards. That goes to the arbitrator.

The Court of Appeals thus held invalid, and severed, the time limitation clause. The District Court's decision regarding attorney's fees was not appealed by Comcast, and therefore stands. The Court of Appeals rejected Anderson's argument that the entire arbitration agreement is invalid. The granting of the motion to compel arbitration is affirmed. The arbitrator has authority to rule on class representation and multiple damages.

This case is Carl Anderson v. Comcast Corporation, et al., U.S. Court of Appeals for the 1st Circuit, App. Ct. Nos. 06-2165 and 06-2203, appeals from the U.S. District Court for the District of Massachusetts, Judge Michael Ponsor presiding. Judge Lipez wrote the opinion of the Court of Appeals, in which Judges Tashima and Howard joined.

European Commission Pursues Rambus Regarding JEDEC Standards Setting Process

8/23. The European Commission (EC) issued a release on August 23, 2007, in which it stated that it issued a Statement of Objections (SO) on July 30, 2007, to Rambus.

The SO alleged violation of European Union competition law in connection with Rambus's participation in a dynamic random access memory (DRAM) standards setting process in which it deceptively withheld information that it was patenting technologies that were incorporated into industry standards.

See, full story.

People and Appointments

8/23. Wan Kim, the Assistant Attorney General in charge of the Department of Justice's (DOJ) Civil Rights Division, will resign at the end of this month. See, DOJ release.

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8/23. The U.S. Court of Appeals (6thCir) issued its opinion [PDF] in Compuware v. Moody's Investors Services, affirming the summary judgment of the District Court for Moody's Investors Services. Moody's analyzes the financial conditions of, and publishes credit ratings for, companies. It rated Compuware, which then filed a complaint in U.S. District Court (EDMich) alleging defamation and breach of contract. The District Court held that actual malice is an element of both claims, and that Compuware failed to make the requisite showing. The Court of Appeals affirmed. This case is Compuware Corporation v. Moody's Investor Services, Inc., U.S. Court of Appeals for the 6th Circuit, App. Ct. No. 05-1851, an appeal from the U.S. District Court for the Eastern District of Michigan, D.C. No. 03-70247, Judge John Feikens presiding.

8/23. Hal Leonard Music Pro Guides published a book [Amazon listing] titled "Hey, That's My Music: Music Supervision, Licensing, and Content Acquisition", by Brooke Wentz. This book is an introductory guide for musicians, music supervisors, film makers, and other laymen, rather than attorneys. It includes 117 pages of guidance on copyright rights and formalities, permissions, music sources, music supervision, clearance requests, and pricing and negotiation. The book also includes several appendices, including one with 57 pages of Copyright Office forms, license agreements, and other forms.

Rep. Thompson Writes Chertoff Regarding Satellite Surveillance

8/22. Rep. Bennie Thompson (D-MS), the Chairman of the House Homeland Security Committee (HHSC), sent a letter [PDF] to Michael Chertoff, Secretary of Homeland Security, regarding the Department of Homeland Security's (DHS) recently disclosed plans to make satellite surveillance resources available to domestic law enforcement agencies beginning on October 1, 2007.

Rep. Thompson wrote that "I am not certain that the proper privacy, civil rights and civil liberties issues have been fully addressed. I need you to provide me with an immediate assurance that upon its October 1st roll out, this program will be operating within the confines of the Constitution and all applicable laws and regulations."

He wrote that "Through media reports I learned of the Department’s intent to create a National Applications Office (NAO) that will purportedly be tasked with facilitating the use of ``spy´´ satellites for domestic homeland security and law enforcement purposes."

See for example, August 15, 2007, story in the Wall Street Journal titled "U.S. to Expand Domestic Use of Spy Satellites" by Robert Block.

After reprimanding Chertoff for failing to keep the HHSC apprised of its activities, Rep. Thompson wrote that the DHS's "failure to include its own Chief Privacy Officer and the Officer for Civil Rights and Civil Liberties in the initial planning stages for the NAO raises serious concerns about the extent to which valid privacy and civil liberties concerns raised by the domestic use of this technology may have been considered and addressed prior to this projected roll out date."

He elaborated that "It would seem to me that one of the lessons that should have been learned from the Department’s unfortunate experience with the CAPPS II and the Secure Flight programs, would have been to include the officials responsible for privacy, civil rights and civil liberties concerns early in the process. It appears that even after these unfortunate instances, the Department still has not embraced that lesson.

He also wrote that "I am also concerned about the Department’s failure to vet this program with the Privacy and Civil Liberties Oversight Board", or PCLOB.

Rep. Thompson also asked for a series of briefings on this program.

FBI Announces Changes to Terrorist Screening Records System

8/22. The Department of Justice's (DOJ) Federal Bureau of Investigation (FBI) published a notice in the Federal Register, as required by the Privacy Act, that announces numerous proposed changes to the system of records maintained by the FBI's Terrorist Screening Center (TSC) titled Terrorist Screening Records System (TSRC).

The notice also requests public comments. The deadline to submit comments is October 1, 2007. See, Federal Register, August 22, 2007, Vol. 72, No. 162, at Pages 47073-47079.

The notice states, among other things, that the TSC plans to allow personnel from other government agencies, and non-governmental entities, to remotely query its electronic Terrorist Screening Database (TSDB).

The notice states that currently, "only TSC personnel can perform queries directly against the TSDB, EMA, and other internal TSC databases. In the future, the TSC plans to operate a query function permitting authorized individuals from screening agencies or entities to access TSC systems directly from an external location and submit search queries."

The notice adds that "not all terrorism screening is necessarily performed by a federal government agency", and may be performed by "critical infrastructure owners and operators". It elaborates that "private sector entities" that have a substantial bearing on homeland security may receive information from the TSRS.

This "is intended to better reflect the ongoing efforts by the federal government to increase sharing of intelligence, law enforcement, terrorism and threat information with State fusion centers and the private sector, such as critical infrastructure and key resource owners and operators". The FBI's notice further states that the reasons for such disclosure include a "personnel investigation or inquiry into a breach of data security".

Martin Advocates A La Carte

8/22. Federal Communications Commission (FCC) Chairman Kevin Martin wrote a letter [PDF] regarding "consumer benefits of a la carte".

The letter was addressed to leaders of the Black Leadership Forum, Hispanic Federation, Labor Council for Latin American Development, League of United Latin American Citizens, National Black Chamber of Commerce, National Congress of Black Women, and the Hispanic Telecommunications and Technology Project.

Kevin MartinMartin (at right) wrote that "An a la carte regime would enable viewers to buy their television channels individually, in smaller packages, or in the large packages currently offered. I believe that these forms of channel choice could provide all consumers the ability to lower their cable bills and to have greater control over the programming that comes into their homes."

Martin continued that "Channel choice is increasingly significant to consumers as the number of channels included in expanded basic, and the corresponding price to consumers, has continued to skyrocket. Indeed, cable rates have more than doubled in the last 10 years. Cable companies often point to the increased number of channels being offered as an explanation for the increase in prices. This explanation however, ignores the fact that most of these channels are not actually being watched."

"While I believe all consumers would benefit from channels being sold in a more a la carte manner, minority consumers, particularly those living in Spanish speaking homes, might benefit most of all. Currently cable and satellite providers often require subscribers to purchase dozens if not hundreds of channels in order to get Spanish language programming for which they must pay an additional cost. Under a la carte however, Spanish speaking homes could purchase only Spanish language channels", said Martin.

3rd Circuit Addresses Internet Based Personal Jurisdiction

8/22. The U.S. Court of Appeals (3rdCir) issued its opinion [12 pages in PDF] in Marten v. Godwin, a case regarding internet based personal jurisdiction. The Court of Appeals affirmed the District Court's dismissal of a defamation and Section 1983 complaint for lack of personal jurisdiction over the University of Kansas and its employees.

This opinion is a victory for free speech on the internet. This case does not involve the University of Kansas's speaking or publishing. It concerns its expulsion of an online student. However, the former student, Marten, alleged defamation, which is the claim most frequently asserted to suppress speech. The Court of Appeals issued an opinion that will make it difficult for those who seek to use defamation actions to silence online speech by hauling distant speakers into court in the 3rd Circuit.

Craig Marten, as a resident of the state of Pennsylvania, studied pharmacy via online courses offered by the University of Kansas (UK), which is located in the state of Kansas. He also communicated with his professors by phone and e-mail. The UK expelled Martin after accusing him of plagiarism on written assignments.

Marten filed a complaint in U.S. District Court (EDPenn) against the UK and several of its employees alleging defamation and violation of 42 U.S.C. § 1983 (state deprivation of Constitutional rights). The District Court granted summary judgment to the defendants based upon its lack of personal jurisdiction over the defendants.

Marten brought the present appeal. The Court of Appeals affirmed.

The Court of Appeals applied precedent from the Supreme Court and the 3rd Circuit regarding the due process limitations upon the exercise of personal jurisdiction, general jurisdiction, and specific jurisdiction, and concluded that the District Court in Pennsylvania lacked personal jurisdiction over the out of state defendants.

The Court of Appeals began its analysis with the "minimum contacts" holding in International Shoe v. Washington, 326 U.S. 310 (1945).

It continued that there are two types of personal jurisdiction, general and specific. General jurisdiction, which Marten did not argue, "exists when a defendant has maintained systematic and continuous contacts with the forum state".

"Specific jurisdiction exists when the claim arises from or relates to conduct purposely directed at the forum state." The Court of Appeals wrote that the 3rd Circuit applies a three part analysis. First, the defendant must have purposefully directed his activities at the forum state. Second, the plaintiff’s claim must arise out of or relate to at least one of those specific activities. And third, courts may consider additional factors to ensure that the assertion of jurisdiction otherwise comports with fair play and substantial justice.

However, Marten did not argue that this three part analysis warrants a finding of personal jurisdiction. Rather, he argued an alternative basis for specific jurisdiction -- the Supreme Court's effects test holding in Calder v. Jones, 456 U.S. 783 (1984).

The Court of Appeals continued that the 3rd Circuit applies a three part test to apply the Calder effects test. "(1) The defendant committed an intentional tort; (2) The plaintiff felt the brunt of the harm in the forum such that the forum can be said to be the focal point of the harm suffered by the plaintiff as a result of that tort; (3) The defendant expressly aimed his tortious conduct at the forum such that the forum can be said to be the focal point of the tortious activity."

The Court of Appeals focused on the "expressly aimed" prong of this test. It wrote, quoting from 3rd Circuit precedent, that "To establish that the defendant ``expressly aimed´´ his conduct, the plaintiff has to demonstrate ``the defendant knew that the plaintiff would suffer the brunt of the harm caused by the tortious conduct in the forum, and point to specific activity indicating that the defendant expressly aimed its tortious conduct at the forum.´´"

The Court of Appeals then concluded that under this test, "Marten has not shown with respect to either claim that defendants expressly aimed their conduct at Pennsylvania."

It elaborated that "Marten alleges defamation, but nothing in the record indicates that defendants made defamatory statements or sent defamatory material to anyone in Pennsylvania (other than, perhaps, Marten)." (Parentheses in original.)

"Here, even if we were to assume the truth of all of Marten’s allegations, and assume he felt the brunt of the harm in Pennsylvania, we still could not find jurisdiction. He failed to allege any specific facts showing a deliberate targeting of Pennsylvania."

The Court of Appeals then addressed Marten's Section 1983 retaliation claim. "That claim rests on his allegation that he was falsely accused of academic misconduct and consequentially expelled because he exercised his First Amendment rights in complaining about Regan. But even if we assume Marten felt the brunt of the harm in Pennsylvania, he has utterly failed to persuade us that defendants expressly aimed their allegedly retaliatory conduct at Pennsylvania." (Footnotes omitted.)

Hence, the Court of Appeals affirmed the District Court's judgment for the defendants. Marten might still pursue his claims in District Court in Kansas.

The Supreme Court has not yet addressed personal jurisdiction over out of state defendants based upon their internet activities. However, there are numerous lower court opinions. For a discussion of some cases involving personal jurisdiction in defamation cases, see story titled "2nd Circuit Addresses Personal Jurisdiction in Web Based Defamation Case" in TLJ Daily E-Mail Alert No. 1,603, June 28, 2007. For a discussion that also addresses other types of cases, see story titled "9th Circuit Holds that Operation of Passive Website Is Insufficient to Create Personal Jurisdiction in Trademark Case" in TLJ Daily E-Mail Alert No. 1,409, July 12, 2006.

This case is Craig Marten v. Harold Godwin, University of Kansas, et al., U.S. Court of Appeals for the 3rd Circuit, App. Ct. No. 05-5520, an appeal from the U.S. District Court for the Eastern District of Pennsylvania, D.C. No. 03-cv-06734, Judge Petrese Tucker presiding. Judge Chagares wrote the opinion of the Court of Appeals, in which Judges Sloviter and Greenberg joined.

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8/22. The Federal Communications Commission (FCC) published a notice in the Federal Register that announces, describes, and sets comment deadlines for its Further Notice of Proposed Rulemaking (FNPRM) regarding potential interference unique to the reverse band operating environment in the 17/24 GHz BSS. This FNPRM is FCC 07-76 in IB Docket No. 06-123. See, Federal Register, August 22, 2007, Vol. 72, No. 162, at Pages 46939-46949.

8/22. The U.S. Patent and Trademark Office (USPTO) published a notice in the Federal Register that announces, describes, recites, and sets the effective date (September 30, 2007) for its final rule adjusting certain patent fee amounts to reflect fluctuations in the Consumer Price Index (CPI). See, Federal Register, August 22, 2007, Vol. 72, No. 162, at Pages 46899-46903.

FCC Files Brief in Amateur Radio Operators' Challenge to BPL Rules

8/21. The Federal Communications Commission's (FCC) Office of General Counsel (OGC) and the Department of Justice (DOJ) filed their brief [79 pages in PDF] with the U.S. Court of Appeals (DCCir) in American Radio Relay League v. FCC, a petition for review of a final order of the FCC pertaining to broadband over power line (BPL). Oral argument before the Court of Appeals is scheduled for October 23, 2007.

The American Radio Relay League (ARRL) represents amateur radio operators, who complain about the interference to their operations caused by BPL operations. The FCC has issued rules allowing, and regulating, Access BPL operations as part of its wider attempt to promote the deployment of more broadband internet access platforms to compete with the broadband services offered by cable and phone companies. The ARRL challenges the FCC's order authorizing unlicensed Access BPL operations under Part 15 of its rules.

The FCC's brief provides a detailed history of the FCC's proceedings, and then defends the rules adopted by the FCC.

The FCC issued a Notice of Inquiry (NOI) in 2003, and then a Notice of Proposed Rulemaking (NPRM) in February of 2004.  The FCC released the text [38 pages in PDF] of the NPRM on February 23, 2004.

The FCC promulgated its BPL rules in its Report and Order [86 pages in PDF] adopted on October 14, 2004, and released on October 28, 2004. This R&O established technical standards, operating restrictions and measurement procedures for Access BPL to minimize instances of harmful interference and to facilitate the resolution of such interference where it might occur.

The October 2004 R&O is FCC 04-245 in ET Docket No. 04-37 and ET Docket No. 03-104. See also, story titled "FCC Adopts BPL Report and Order" in TLJ Daily E-Mail Alert No. 997, October 15, 2004, and story titled "FCC Adopts Broadband Over Powerline NPRM" in TLJ Daily E-Mail Alert No. 836, February 13, 2004.

On August 3, 2006, the FCC adopted a Memorandum Opinion and Order (MO&O) that responded to petitions for reconsideration of the rules adopted in the October 2004 rules. That MOO did not make significant changes to the 2004 R&O. That MOO is FCC 06-113 in ET Docket Nos. 04-37 and 03-104. See also, story titled "FCC Adopts MOO Regarding BPL Systems" in TLJ Daily E-Mail Alert No. 1,424, August 3, 2006.

On November 3, 2006, the FCC adopted a MO&O that declares that BPL enabled internet access service is an information service. See, story titled "FCC Declares that BPL is an Information Service" in TLJ Daily E-Mail Alert No. 1,482, November 3, 2006. That item is FCC 06-165 in WC Docket No. 06-10.

This case is American Radio Relay League, Inc. v. FCC and USA, U.S. Court of Appeals for the District of Columbia, App. Ct. No. 06-1343.

There is a bill in the Senate that could provide some relief for amateur radio operators. On June 14, 2007, Sen. Mark Pryor (D-AR) introduced S 1629 [LOC | WW], the "Emergency Amateur Radio Interference Protection Act of 2007".

This bill would require the FCC to conduct a study. It also sets standards for this study. It would then require the FCC to submit a report within 90 days to the House and Senate Commerce Committees "of the interference potential of systems for the transmission of broadband Internet services over power lines".

The bill also provides that this report must include "Options for new or improved rules related to the transmission of BPL service that, if implemented, may prevent harmful interference to public safety and other radio communications systems."

The bill is cosponsored by Sen. Mike Crapo (R-ID). It has not yet received a hearing.

People and Appointments

8/21. James Bidzos was elected Chairman of VeriSign. He replaces Edward Mueller who resigned to become Ch/CEO of Qwest Communications International. See, VeriSign release.

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8/21. The U.S. District Court (DC) released a redacted copy of its Memorandum Opinion [95 page PDF scan; 3.5 MB] denying the Federal Trade Commission's (FTC) request for a preliminary injunction of the proposed acquisition by Whole Foods of Wild Oats. The FTC is appealing. This case is FTC v. Whole Foods Markets, Inc. and Wild Oats Markets, Inc., U.S. District Court for the District of Columbia, D.C. No. 07-1021 (PLF), Judge Paul Friedman presiding.

8/21. The U.S. Patent and Trademark Office (USPTO) published a notice in the Federal Register that announces, describes, recites, and sets the effective date (November 1, 2007) for changes to its rules of practice in patent cases relating to continuing applications and requests for continued examination practices, and for the examination of claims in patent applications. See, Federal Register, August 21, 2007, Vol. 72, No. 161, at Pages 46715-46843.

8/21. The Securities and Exchange Commission (SEC) published a notice in the Federal Register that announces that its is adopting "revisions to the Electronic Data Gathering, Analysis, and Retrieval System (EDGAR) Filer Manual to reflect updates to the EDGAR system". The purpose is to support expansion of the SEC's interactive data voluntary reporting program "to enable mutual funds voluntarily to submit supplemental tagged information contained in the risk/return summary section of their prospectuses on Form N-1A."

8/21. The Institute for Policy Innovation (IPI) released a paper [32 pages in PDF] titled "The True Cost of Sound Recording Piracy to the U.S. Economy". The author is Stephen Siwek of Economists Incorporated. He finds that "As a consequence of global and U.S.-based piracy of sound recordings, the U.S. economy loses $12.5 billion in total output annually." In addition, "the U.S. economy loses 71,060 jobs", "U.S. workers lose $2.7 billion in earnings annually", and "federal, state and local governments lose a minimum of $422 million in tax revenues annually".8/21. The American Antitrust Institute (AAI) published a short paper [4 pages in PDF] titled "The Intel Case -- Is Europe Really Picking on Another U.S. Company? A Reply to the Wall Street Journal". The author is Robert Lande, Director of the AAI. He argues that the European Commission's (EC) "ultimate goal is neither to attack an American company or to protect European firms". There is, he writes, no European chip manufacturer to protect. The WSJ published an opinion piece titled "Intel in Euro-Land" in its July 31, 2007, issue in which it wrote that "Computer chips are getting faster and smaller, and prices are dropping amid fierce competition. So naturally the European Commission thinks this is the ideal time to lodge another antitrust suit against another American technology titan." See also, EC release and story titled "European Commission Initiates Proceeding Against Intel Alleging Anticompetitive Behavior" in TLJ Daily E-Mail Alert No. 1,617, July 27, 2007.

Go to News from August 16-20, 2007.