TLJ News from November 1-5, 2007

OECD Releases Its Latest Broadband Data

11/5. The Organisation for Economic Development and Cooperation (OECD) published in its web site its latest data on broadband internet access, including users per capita by nation, prices, speeds and other information.

The OECD's broadband penetration data places the US as 15th among OECD member nations.

In the US, proponents of greater government intervention in broadband markets, such as FCC Commissioner Michael Copps and Rep. Ed Markey (D-MA) frequently cite OECD data reports as justification for their policy proposals. In contrast, opponents of greater government intervention question the accuracy and relevance of the OECD's data.

After the release of the latest OECD data, John Kneuer, head of the Department of Commerce's (DOC) National Telecommunications and Information Administration (NTIA) stated in a release that "Since President Bush took office, the United States has experienced tremendous growth in high-speed Internet capabilities, with the number of broadband lines increasing by 1200% to 82.5 million as of December 2006. In addition to leading the world with the largest number of broadband lines, the U.S. also leads in total Wi-Fi hotspots, Internet users, Internet hubs, and e-commerce revenues."

He said that "We appreciate the OECD’s efforts to look at a broader range of measurements through its new broadband portal and will continue to work with them to improve its methodology to better capture the full range of broadband services in the United States and other OECD members."

Open Handset Alliance Announces Android and New Members

11/5. Open Handset Alliance (OHA) released information about Android, its open platform for mobile handsets. See, OHA's web page titled "Android". Also on November 5, Sprint Nextel and other companies joined the OHA.

The OHA's carrier members now include Sprint Nextel, T-Mobile, NTT DoCoMo, KDDI, China Mobile, Telecom Italia, and Telefonica.

Its handset manufacturer members include Motorola, Samsung, HTC, and LG Electronics.

Its members also include Google, Qualcomm, Intel, Broadcom, Nvidia, Texas Instruments, and eBay.

Sprint's John Garcia stated in a release that "Sprint realizes that to grow the mobile marketplace and fully exploit the amazing potential of mobile communications, we have to empower rather than restrict wireless users ... And the best way to do this is to create an environment that encourages the development of innovative products and services that customers can't live without. Android will be just such an environment, and Sprint is yet again at the forefront in mobile innovation."

Sprint's release also states that "Android also aligns with Sprint's plans for its next-generation mobile data network, Xohm, which will soft launch in several markets in late December and begin commercial service in 2008. Sprint is working with ecosystem partners and others to incorporate WiMAX technology in a range of computing, portable multi-media, interactive and other consumer electronic devices. Sprint is working with Google to bring Xohm WiMAX mobile Internet customers search, interactive communications and social networking tools through a new mobile portal, as Sprint untethers Internet access for consumers, businesses and government customers."

Also on November 5, Google released a statement by Andy Rubin, its Director of Mobile Platforms, regarding Android.

He said that "Android is the first truly open and comprehensive platform for mobile devices. It includes an operating system, user-interface and applications -- all of the software to run a mobile phone, but without the proprietary obstacles that have hindered mobile innovation."

He said that "we hope Android will be the foundation for many new phones" and that "some of our partners are targeting the second half of 2008 to ship phones based on the Android platform".

However, he said nothing about any plans that Google might have regarding acquiring spectrum or producing handsets itself.

Gigi Sohn, head of the Public Knowledge, stated in a release that "The FCC, and leading American cellular companies, should take notice and realize that this trend is one they will not be able to stop."

9th Circuit Rules in Perfumebay v. eBay Trademark Case

11/5. The U.S. Court of Appeals (9thCir) issued its opinion [PDF] in v. eBay, a trademark case, affirming in part and reversing in part.

Perfumebay sells perfume on the internet. eBay is an internet auction company. eBay filed a complaint in U.S. District Court (CDCal) against alleging trademark infringement. Following a jury trial, the District Court entered judgment of infringement and granted injunctive relief.

This appeal followed. Following a lengthy discussion of similarity of marks, initial interest confusion, conjoined and non-conjoined marks, unclean hands, availability of injunctive relief, and other issues, the Court of Appeals affirmed in part and reversed in part.

The Court of Appeals held that the District Court "did not clearly err in finding that conjoined forms of ``perfumebay´´ created a likelihood of consumer confusion. The district court, therefore, properly enjoined Perfumebay from utilizing such infringing marks. The district court also did not clearly err in finding that the non-conjoined forms of Perfumebay's mark, such as Perfume Bay, did not create a likelihood of confusion. However, the district court erred in holding that Perfumebay’s marks did not produce a likelihood of dilution, as the marks are nearly identical to eBay’s mark. The district court also erred in finding that eBay acted with unclean hands in its advertising, as the record did not affirmatively demonstrate the requisite intent to deceive."

This case is, Inc. v. eBay, Inc., U.S. Court of Appeals for the 9th Circuit, App. Ct. Nos. 05-56794 and 05-56902, appeals from the U.S. District Court for the Central District of California, D.C. Nos. CV-04-01358-WDK and CV-04-01358-WDK, Judge William Keller presiding. Judge Johnnie Rawlinson  wrote the opinion of the Court of Appeals, in which Judges Stephen Trott and Jane Roth joined.

More News

11/5. The Department of Commerce's (DOC) Bureau of Industry and Security (BIS) published a notice in the Federal Register that announces, describes, recites, and sets the effective date (November 5, 2007) for its changes to its Export Administration Regulations (EAR). These rule changes relate to, among other things, regulation of export of computers and software. The notice states that the purpose of these changes is "to implement changes made to the Wassenaar Arrangement's List of Dual Use Goods and Technologies (Wassenaar List), and Statements of Understanding maintained and agreed to by governments participating in the Wassenaar Arrangement on Export Controls for Conventional Arms and Dual Use Goods and Technologies". It adds that these rules changes remove "the remaining references to ``Composite Theoretical Performance (CTP)´´ and ``Millions of Theoretical Operations Per Second (MTOPS)´´ in the EAR, which is consistent with agreements made by the Wassenaar Arrangement with regard to microprocessors." (Parentheses in original.) See, Federal Register, November 5, 2007, Vol. 72, No. 213, at Pages 62523-62551.

11/5. U.S. Trade Representative Susan Schwab and acting Secretary of Agriculture Chuck Connor held a news conference regarding the U.S. Columbia free trade agreement. Schwab said "I don't talk about when the Doha Round is going to succeed". See, transcript [PDF], at page 11.

More Capitol Hill News

11/3. On November 3, 2007, Sen. Charles Schumer (D-NY), who is member of the Senate Judiciary Committee (SJC), wrote in a statement that "I will support Judge Michael Mukasey for attorney general." The SJC has scheduled a vote on the nomination for Tuesday, November 6, 2007. On November 2, Sen. Patrick Leahy (D-VT), the Chairman of the SJC, announced that he will vote against the nomination. See, statement. Sen. Dianne Feinstein (D-CA), also a member of the SJC, stated back on October 26, 2007, that "I will vote to confirm Michael Mukasey to be our next Attorney General." See, statement.

SEC Continues Process of Requiring That More Filings Go Online

11/2. The Securities and Exchange Commission (SEC) announced that it has proposed rules changes regarding electronic filings with the SEC. This would have the effect of making more information available on the internet via the SEC's Electronic Data Gathering, Analysis, and Retrieval (EDGAR) system. This is another in a long series of SEC rules changes expanding the scope of filings that must done electronically.

The SEC stated in a release that it now proposes that "mutual funds and other companies seeking exemptions under the Investment Company Act of 1940 submit their applications electronically so investors can access them sooner and the Commission can consider them more quickly".

SEC Chairman Chris Cox stated in this release that "This is another step in our commitment to making public filings available electronically for the benefit of investors" that will "significantly improve public access to exemptive applications through the Internet"

The SEC's also released a notice [41 pages in PDF] for publication in the Federal Register. It states that "We make this proposal, in light of the primary goals of the EDGAR system, to facilitate the rapid dissemination of financial and business information in connection with filings, including filings by investment companies. Requiring these applications to be submitted electronically would benefit members of the investing public and the financial community by making information contained in these filings readily available to them and more easily searchable. In this age of information, we believe that filings and applications made with the Commission are more valuable to investors if they are available in electronic form and that adding applications to the EDGAR database would provide a more complete picture for the investing public." (Footnote omitted.)

Comments are due by December 14, 2007.

FCC Files Cert Petition in Broadcast Profanity Case

11/2. The Department of Justice's (DOJ) Office of the Solicitor General (OSG), on behalf of the Federal Communications Commission (FCC), filed its petition for writ of certiorari [186 pages in PDF] with the Supreme Court of the US (SCUS) in FCC & USA v. Fox Television Stations, a case involving FCC regulation of broadcast profanity.

Background. On November 6, 2006, the FCC issued an Order [36 pages in PDF] on remand regarding complaints that four broadcast television programs contained indecent and/or profane material. The Order concluded, among other things, that comments made by Nicole Richie during "The 2003 Billboard Music Awards" and by Cheryl LaPiere during the "The 2002 Billboard Music Awards" were indecent and profane.

The broadcasts at issue included a single use of the word "fuck", or a word derived therefrom.

This order is FCC 06-166. See also, stories titled "FCC Releases Indecency Orders" in TLJ Daily E-Mail Alert No. 1,332, March 20, 2006, and "FCC Releases Order on Remand Regarding Broadcast Indecency" in TLJ Daily E-Mail Alert No. 1,484, November 7, 2006.

The FCC's relied for statutory authority on 18 U.S.C. § 1464. It provides in full that "Whoever utters any obscene, indecent, or profane language by means of radio communication shall be fined under this title or imprisoned not more than two years, or both."

The FCC also relied on the SCUS's 1978 opinion in FCC v. Pacifica Foundation, which is reported at 438 U.S. 726.

In Pacifica, the Supreme Court upheld the FCC's order regarding a radio broadcast of a George Carlin monologue. It wrote that "We have long recognized that each medium of expression presents special First Amendment problems. ... And of all forms of communication, it is broadcasting that has received the most limited First Amendment protection. Thus, although other speakers cannot be licensed except under laws that carefully define and narrow official discretion, a broadcaster may be deprived of his license and his forum if the Commission decides that such an action would serve ``the public interest, convenience, and necessity.´´"

Fox, CBS, and ABC filed petitions for review of the FCC's order. The U.S. Court of Appeals (2ndCir) issued its divided opinion [53 pages in PDF] on June 4, 2007, vacating the order of the FCC. (A copy of the opinion is also attached to the petition for writ of certiorari. It is also reported at 489 F.3d 444.)

For a summary of the opinion, see story titled "2nd Circuit Vacates and Remands FCC Profanity Order" in TLJ Daily E-Mail Alert No. 1590, June 4, 2007.

The FCC now seeks review of this opinion.

DOJ/FCC's Argument. The DOJ/FCC petition argues that "the court of appeals adopted an analysis that directly conflicts with the approach toward broadcast-indecency regulation that this Court mandated in" FCC v. Pacifica.

The petition continues that the court criticized the FCC "for taking context into account and refusing to treat a single use of an expletive, no matter how graphic or gratuitous, as per se not indecent, even though, in Pacifica, this Court emphasized that ``context is all-important´´ in evaluating indecency."

The petition states that "The decision of the court of appeals is also inconsistent with settled principles governing judicial review of agency action. The court asserted that the Commission had not adequately explained why it reversed its policy of categorically exempting isolated expletives from the federal restrictions on indecent broadcasts. In reality, the Commission provided a thorough, reasoned explanation for its change in policy. Under the deferential standard of review required by the Administrative Procedure Act (APA), 5 U.S.C. 501 et seq., the Commission’s judgment as to how best to enforce the federal prohibition on the broadcast of indecent material should have been upheld, and the court’s contrary conclusion was erroneous."

The DOJ/FCC petition also argues that "In most cases, a remand to an agency for a fuller explanation of a policy would not merit this Court’s review. Here, however, the court of appeals candidly acknowledged that, under its decision, the Commission probably will be unable to ``adequately respond to the constitutional and statutory challenges´´ in this case even by ``proffering a reasoned analysis for its new approach to indecency.´´"

It concludes that "The court has thus sent the Commission back to run a Sisyphean errand while effectively invalidating much of the Commission’s authority to enforce 18 U.S.C. 1464. In the meantime, the Commission is left in the untenable position of having a grant of authority that the public expects it to exercise, and that Pacifica allows it to exercise, but that the Second Circuit has indicated cannot be meaningfully exercised consistently with that court’s view of the APA and the First Amendment. Accordingly, this Court’s review is warranted."

Case Information. This case is FCC & USA v. Fox Television Stations, Inc., et al., Supreme Court of the United States, Sup. Ct. No. __, a petition for writ of certiorari to the U.S. Court of Appeals for the 3rd Circuit.

This Court of Appeals case is Fox Television Stations, Inc., et al. v. FCC and USA, and consolidated petitions for review of a final order of the FCC, App. Ct. Nos. 06-1760-ag (L), 06-2750-ag (CON), and 06-5358-ag (CON). Judge Pooler wrote the opinion of the court, in which Judge Hall joined. Judge Leval dissented.

More FCC News

11/2. The Federal Communications Commission (FCC) released a Public Notice [3 pages in PDF] that announces revised procedures for the 700 MHz auction scheduled for January of 2008. This notice is titled "Auction of 700 MHz Band Licenses: Revised Procedure for Auctions 73 and 76: Additional Default Payment for D Block Set at Ten Percent of Winning Bid Amount; Disputed Issues in the Negotiation of Network Sharing Agreement". It is DA 07-4514 in AU Docket No. 07-157, WT Docket No. 06-150, and PS Docket No. 06-229. This revises the procedure announced in the FCC's Public Notice [122 pages in PDF] numbered DA 07-4171 and released on October 5, 2007. Also, on November 2, 2007, the FCC published a notice in the Federal Register that summarizes the October 5 Public Notice. See, Federal Register, November 2, 2007, Vol. 72, No. 212, at Pages 62359-62392.

11/2. The Federal Communications Commission (FCC) published a notice in the Federal Register that announces, summarizes, recites and sets the effective date (December 3, 2007) for, its rule changes regarding the Emergency Alert System (EAS). The FCC adopted its Second Report and Order on May 31, 2007, and released text [75 pages in PDF] on July 12, 2007. It is FCC 07-109 in EB Docket No. 04-296. See, notice in the Federal Register, November 2, 2007, Vol. 72, No. 212, at Pages 62123-62135. The FCC also published a second notice in the Federal Register that sets comments deadlines for the NPRM portion of this item. Initial comments are due by December 3, 2007. Reply comments are due by December 17, 2007. See, Federal Register, November 2, 2007, Vol. 72, No. 212, at Pages 62195-62198. See also, story titled "FCC Expands EAS Program" in TLJ Daily E-Mail Alert No. 1,589, May 31, 2007.

11/2. The Federal Communications Commission (FCC) released the agenda [PDF] for its November 8, 2007, event titled "Digital Television Consumer Education Workshop". The event will be at 10:00 AM - 1:15 PM at the FCC headquarters.

11/2. Federal Communications Commission (FCC) issued a release [PDF] that announces that it will hold yet another hearing on FCC regulation of the ownership of media. This one will be in Seattle, Washington, on February 9, 2007. Commissioners Michael Copps and Jonathan Adelstein issued a statement [PDF] on February 2: "A hearing with only five days notice is no nirvana for Seattle and the Pacific Northwest. This smells like mean spirit. Clearly, the rush is on to push media consolidation to a quick and ill-considered vote. It shows there is a preordained outcome. Pressure from the public and their elected representatives is ignored. With such short notice, many people will be shut out. We received notice of the hearing just moments before it was announced. This is outrageous and not how important media policy should be made."

More Capitol Hill News

11/2. Sen. Robert Byrd (D-WV), the Chairman of the Senate Appropriations Committee (SAC), published a notice in the Congressional Record that announces revised subcommittee assignments for the SAC's subcommittees. The members of the Commerce Justice, Science and Related Agencies Subcommittee, which handles appropriations for many of the federal technology related agencies, remains unchanged. The members are Barbara Mikulski, Daniel Inouye, Patrick Leahy, Herb Kohl, Tom Harkin, Byron Dorgan, Dianne Feinstein, Jack Reed, Frank Lautenberg, Richard Shelby, Judd Gregg, Ted Stevens, Pete Domenici, Mitch McConnell, Kay Hutchison, Sam Brownback, and Lamar Alexander. This notice is published at Congressional Record, November 2, 2007, at Page S13723. It updates the notice published at Congressional Record, February 27, 2007, at Page S2253.

Senate Judiciary Committee Approves Cyber Crime and ID Theft Bill

11/1. The Senate Judiciary Committee (SJC) reported S 2168 [LOC | WW], the "Identity Theft Enforcement and Restitution Act of 2007". While the bill does address identity theft and restitution for identity theft victims, it is primarily a bill to amend 18 U.S.C. § 1030. The SJC amended and approved the bill on November 1. See, bill as reported [PDF] by the SJC.

Sen. Patrick Leahy (D-VT) introduced this bill on November 1, 2007. He stated in a release that "Every day, cyber criminals find new ways to get around our laws. I hope the Senate moves quickly to pass this legislation to give the necessary tools to our prosecutors to shut these criminals down."

Sen. Arlen Specter (R-PA) stated in this release that "Identity theft is a serious and growing problem, and this legislation will have an immediate impact on federal prosecutors, victims and the perpetrators of this serious crime by providing the tools and penalties to effectively prosecute identity theft."

Robert Holleyman, head of the Business Software Alliance (BSA), stated in a release that this bill "will update criminal laws and provide law enforcement with much-needed tools and resources to find and prosecute cyber criminals."

HR 2290 [LOC | WW], the "Cyber-Security Enhancement Act of 2007, which was introduced on May 14, 2007, by Rep. Adam Schiff (D-CA), contains some provisions that overlap provisions in S 2168. The House Judiciary Committee has not yet approved that bill. See, also HR 836 [LOC | WW], the "Cyber-Security Enhancement and Consumer Data Protection Act of 2007", introduced by Rep. Lamar Smith (R-TX) on February 6, 2007.

Restitution for Identity Theft Victims. This bill would amend 18 U.S.C. § 3663, which allows the court to order the payment of restitution as part of sentencing. It would add violations of 18 U.S.C. § 1028(a)(7) and 18 U.S.C. § 1028A(a), which are in the nature of identity theft prohibitions, to crimes for which a judge can order restitution.

Subsection 1028(a)(7) provides for criminal prosecution of anyone who "knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person with the intent to commit, or to aid or abet, or in connection with, any unlawful activity that constitutes a violation of Federal law, or that constitutes a felony under any applicable State or local law".

Section 1028A criminalizes aggravated identity theft.

S 2168 would allow judges to order people convicted of identity theft to pay restitution to their victims. Moreover, this bill would allow restitution not only for financial loss, but also for "the value of the time reasonably spent by the victim in an attempt to remediate the intended or actual harm incurred by the victim".

Of course, whether persons convicted of identity theft will have the financial ability to pay such restitution is another matter.

This bill would also expand the list of offenses that may serve as predicate offenses for prosecution under Section 1028A for aggravated identity theft.

Expanded Federal Jurisdiction in Unauthorized Access Cases. The rest of the bill pertains to revisions to Section 1030, the cyber hacking, or computer fraud and abuse statute.

This bill would amend 18 U.S.C. § 1030(a)(2)(C) to remove the interstate or foreign communication requirement.

The statute currently provides that "Whoever ... intentionally accesses a computer without authorization or exceeds authorized access, and thereby obtains ... information from any protected computer if the conduct involved an interstate or foreign communication ... shall be punished ..."

The bill would also amend the definition of "protected computer" in Subsection 1030(e)(2). It would change the clause "which is used in interstate or foreign commerce or communication" to "which is used in or affecting interstate or foreign commerce or communication". (Emphasis added.) This change was added at the SJC markup on November 1, 2007.

Expansion of Cyber Extortion Prohibition. The bill would replace Subsection 1030(a)(7). It currently provides that "Whoever ... with intent to extort from any person any money or other thing of value, transmits in interstate or foreign commerce any communication containing any threat to cause damage to a protected computer ... shall be punished ..."

This bill would amend it to provide that "Whoevever ... with intent to extort from any person any money or other thing of value, transmits in interstate or foreign commerce any communication containing any -- (A) threat to cause damage to a protected computer; (B) threat to obtain information from a protected computer without authorization or in excess of authorization or to impair the confidentiality of information obtained from a protected computer without authorization or by exceeding authorized access; or (C) demand or request for money or other thing of value in relation to damage to a protected computer, where such damage was caused to facilitate the extortion ... shall be punished ..."

Conspiracy to Commit Cyber Crime. The bill would amend Subsection 1030(b) to reach anyone who "conspires to commit" a violation of that section. This language was added at the SJC markup.

Spyware and Keyloggers. A section of the bill titled "Malicious Hacking, Spyware and Keyloggers" would rewrite Subsection 1030(a)(5). (The only references in the bill to spyware and keyloggers is in the section title.)

The bill would loosen requirements for prosecution. Also, since Subsection 1030(a)(5) serves as the basis for civil lawsuits under Subsection 1030(g), this bill would expand opportunities for private litigation.

Subsection 1030(a)(5), as amended by the bill, would provide "Whoever ... (5)(A) knowingly causes the transmission of a program, information, code, or command, and as a result of such conduct, intentionally causes damage without authorization, to a protected computer; (B) intentionally accesses a protected computer without authorization, and as a result of such conduct, recklessly causes damage; or (C) intentionally accesses a protected computer without authorization, and as a result of such conduct, causes damage ... shall be punished ..."

The entirety of Subsection 1030(a)(5)(B) would be eliminated. This would eliminate the requirement of damage to a victim's computer of over $5,000, or some other enumerated damage, such a "physical injury".

This language was amended at the SJC markup.

Forfeiture for Section 1030 Violations. The bill would amend Section 1030 to provide for forfeitures by persons convicted of violations of Section 1030. It would reach both personal property used to commit the crime, such as computer equipment, as well a proceeds obtained directly or indirectly from the violation. This language was added at the SJC markup.

Sentencing Guidelines. Finally, the bill would require the U.S. Sentencing Commission to review and revise its guidelines for violations of Section 1030, as well as the identity theft statutes (Sections 1028 and 1028A).

Notably, the provision in the bill would also reach the wiretap statute (18 U.S.C. § 2511) which criminalizes intercepts of "any wire, oral, or electronic communication) and the Stored Communications Act (at 19 U.S.C. S 2701), which provides in part that "whoever ... intentionally accesses without authorization a facility through which an electronic communication service is provided; or ... intentionally exceeds an authorization to access that facility ... and thereby obtains, alters, or prevents authorized access to a wire or electronic communication while it is in electronic storage in such system shall be punished ..."

That is, this bill could result in longer sentences for those who illegally steal identities, hack computers, intercept communications, or access stored communications.

President Bush Discusses FISA Reform

11/1. President Bush gave a speech in Washington DC in which he discussed, among other topics, legislation to reform the Foreign Intelligence Surveillance Act (FISA).

He said that the "Congress has also failed to act on intelligence legislation that is vital to protect the American people in this war on terror. Stopping new attacks on our country requires us to make sure we understand the intentions of the enemy. We've got to know what they're thinking and what they're planning. And that means we got to have effective measures to monitor their communications."

"This summer, Congress passed the Protect America Act, which strengthened our ability to collect foreign intelligence on terrorists overseas and this good law closed a dangerous gap in our intelligence. Unfortunately, they made this law effective for only six months. The problem is that al Qaeda doesn't operate on a six-month timetable. And if Congress doesn't act soon, the law will expire -- and the gap in our intelligence will reopen, and the United States of America will be at risk", said President Bush.

The Protect America Act (PAA) is S 1927 [LOC | WW]. It was enacted into law in August of this year, but has a six month sunset. President Bush backs extension of this bill.

The bill that the House passed in October, which President Bush vehemently opposes, is HR 3773 [LOC | WW], the "Responsible Electronic Surveillance That is Overseen, Reviewed, and Effective Act of 2007" or RESTORE Act.

President Bush continued that "We must keep the intelligence gap firmly closed. If terrorists are communicating with each other and are plotting new attacks, we need to know what they're planning. We must ensure that the protections intended for the American people are not extended to terrorists overseas who are plotting to harm us. And we must grant liability protection to companies who are facing multibillion-dollar lawsuits only because they are believed to have assisted in the efforts to defend our nation following the 9/11 attacks."

He also said that "The Senate Intel Committee has approved a bipartisan bill that contains provisions to preserve our ability to collect intelligence on terrorists overseas, while protecting the civil liberties of Americans here at home. This bill still needs some improving, but it's an important step in the right direction. Time is of the essence, and the full Senate and the House of Representatives need to pass a good bill and get it to my desk promptly so our intelligence professionals can continue to use the vital tools of the Protect America Act to keep us safe."

The bill that the Senate Intelligence Committee (SIC) marked up on October 18 and reported on October 26 is S 2248 [LOC | WW | PDF], the "Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2007".

The Senate Judiciary Committee (SJC) has put this bill on the agenda for its executive business meeting on November 8. However, the SJC rarely adheres to its published agenda.

"It's no time for Congress to weaken our ability to intercept information from terrorists about potential attacks on the United States of America", said President Bush.

He stated at a news conference at the White House on November 1, 2007, that "the Protect America Act is set to expire. If it were to expire it would create an intelligence gap that, in my judgment, would jeopardize the security of the country. I call upon -- and I give credit that the Senate Intel Committee has moved a bill that is a very good start -- and that in my speech I call upon Congress to get a good bill to my desk quickly, so that an intelligence gap does not arise."

Sen. Snowe Introduces LPFM Bills

11/1. Sen. Olympia Snowe (R-ME) introduced S 2297 [LOC | WW], a bill to require the Federal Communications Commission (FCC) to conduct an economic study on the impact that low-power FM stations will have on full-power commercial FM stations. It was referred to the Senate Commerce Committee (SCC) of which she is a member.

She also introduced S 2298 [LOC | WW], a bill to prohibit an applicant from obtaining a low-power FM license if an applicant has engaged in any manner in the unlicensed operation of any station in violation of section 301 of the Communications Act of 1934. It too was referred to the SCC.

Sen. Snowe stated in the Senate that a study is needed because "we don't have a comprehensive understanding as to the effect that low-power FM stations have on their full-power counterparts." See, Congressional Record, November 1, 2007, at Page S13701.

She noted that the FCC has studied interference by LPFM stations, but not the "economic impact the presence of low power stations would bring to the commercial licensees."

She added that "Volunteer, non-profit LPFM stations have found a niche but they also provide competition to full-power stations without having to incur the same costs as those commercial stations, particularly with the absence of licensing fees and employees' salaries. Most of us have raised serious concerns about the continued media consolidation that is occurring and negatively affecting localism and diversity. Part of the reason for this consolidation is because local, independently owned stations are seeing lower profit margins, which are making it more and more difficult to continue broadcasting."

She concluded that "The Government must ensure that by opening up low-power FM broadcast opportunities we are not causing any undue harm to the full-power radio stations".

She also spoke in the Senate about S 2298. She said that this bill "would preserve the Federal Communications Commission's right to deny a low-power FM license if the applicant has run afoul of basic, longstanding Federal restrictions on the transmission of radio waves, such as if the applicant has been previously fined for running an unlicensed ``pirate´´ radio station." See, Congressional Record, November 1, 2007, at Pages S13701-2.

She wrote that "My concern is by completely repealing section 632, which pending legislation proposes, it hinders the ability of the FCC to prohibit applicants from receiving low-power FM licenses."

Free Press Files Complaint with FCC Alleging that Comcast Is Violating 2005 Policy Statement

11/1. The Free Press (FP) and Public Knowledge (PK) filed with the Federal Communications Commission (FCC) a document [48 pages in PDF] captioned "Formal Complaint of Free Press and Public Knowledge Against Comcast Corporation For Secretly Degrading Peer-to-Peer Applications".

Marvin Ammori and Julie Schwartz of the Free Press signed the complaint. The document includes six declarations in support of the complaint by Gigi Sohn and Jeffrey Pearlman (both of PK), Ben Scott and Adam Lynn (both of FP), Peter Eckersley (Electronic Frontier Foundation), and Robert Michael Topolski (who identifies no employment or affiliation).

The complaint alleges that Comcast is "degrading peer-to-peer protocols" by inserting forged reset packets into communications between peers in peer to peer (P2P) communications that terminate those communications. This, the complaint alleges, interferes with Comcast's subscribers use of applications like BitTorrent.

The complaint alleges that this violates a FCC 2005 Policy Statement.

The complaint requests an immediate ex parte preliminary injunction to "forbid from degrading any applications". It also requests a permanent injunction. Also, the complaint requests that the FCC fine Comcast $195,000 per "subscriber whose service was degraded".

The FP and PK are interest groups that advocate government imposed network neutrality mandates.

See, full story.

People and Appointments

11/1. Kyle Dixon joined the Washington DC office of Kamlet Shepherd & Reichert, a Denver, Colorado based law firm. He previously worked for the law firm of Wilmer Hale. Before that, he worked for the Progress & Freedom Foundation (PFF), a Washington DC based free market oriented think tank. Before that, he was a long time employee of the Federal Communications Commission (FCC). He was, among other positions, legal advisor to former FCC Chairman Michael Powell, and broadband policy advisor to Powell. While at the PFF, he worked on the PFF's Digital Age Communications Act (DACA) project, and co-authored its various legislative proposals. He also wrote a paper in June 2006 titled "Rhetoric vs. Reality: Lessig on Network Neutrality", and a paper [11 pages in PDF] in July of 2006 titled "Beginning to Limit ``Social´´ Regulation of Communications". The Washington DC office of Kamlet Shepherd is also home to two other former PFF persons, Jim DeLong and Ray Gifford.

11/1. Brock Meeks joined the Center for Democracy and Technology (CDT) as Director of Communications. He replaces David McGuire. Meeks previously was chief Washington correspondent for Before that, he was the Washington correspondent for Wired magazine and its online counterpart, HotWired

More News

11/1. The U.S. Court of Appeals (4thCir) issued its unpublished opinion [17 pages in PDF] in Final Analysis Communication Services v. General Dynamic, a contract dispute regarding the design, construction, and financing of satellite based data and communication services. The Court of Appeals affirmed in part, and reversed in part, the judgment of the District Court. This case is Final Analysis Communication Services, Inc. v. General Dynamic Corporation, et al., U.S. Court of Appeals for the 4th Circuit, App. Ct. Nos. 06-1520 and 06-1553, appeals from the U.S. District Court for the District of Maryland, at Greenbelt, D.C. No. 8:03-cv-00307-PJM, Judge Peter Messitte presiding.

11/1. The Copyright Office (CO) published a notice in the Federal Register that announces, describes, recites, and sets the effective date (November 1, 2007) for, its rules changes regarding applications for registration of claims for renewal term of copyright. See, Federal Register, November 1, 2007, Vol.72, No. 211, at pages 61801-61806.

11/1. The Department of Justice's (DOJ) Antitrust Division published in its web site copies of key pleadings in U.S. v. AT&T and Dobson. This proceeding is the mechanism by which the DOJ approves AT&T's acquisition of Dobson Communications Corporation, subject to divestitures. See, Complaint (filed October 30, 2007), Competitive Impact Statement, proposed Final Judgment, and proposed Preservation of Assets Stipulation and Order. See also, story titled "DOJ Requires Divestitures in AT&T's Acquisition of Dobson" in TLJ Daily E-Mail Alert No. 1,666, October 31, 2007. This case U.S. v. AT&T, Inc. and Dobson Communications Corporation, U.S. District Court for the District of Columbia, D.C. No. 1:07-CV-01952, Judge Rosemary Collyer presiding.

11/1. The American Civil Liberties Union (ACLU) stated in a release on implementation of the REAL ID Act that "Crucial parts of original DHS plans for Real ID have been scrapped, including the requirements that all airline passengers show their Real IDs at the gate. In an effort to save the doomed program from failure, driver’s licenses would no longer have to follow a strict national standard ..." However, the ACLU added that "a weakened Real ID does not mean weakened privacy concerns. Americans’ information would still be stored in national databases available to all levels of law enforcement, and personal information would still be readable on the card."

Go to News from October 26-31, 2007.