TLJ News from April 1-5, 2008

Verizon Wireless and AT&T Announce Plans for Use of Spectrum Acquired in 700 MHz Auction

4/4. Verizon Wireless announced in a release, and AT&T announced in a release, in vague terms, their plans for use of spectrum that they will acquire as a result of their winning bids in the recently closed Auction No. 73, the 700 MHz auction. The Federal Communications Commission's (FCC) anti-collusion rules prohibited such disclose until April 3, 2008.

VW stated that it will use this spectrum "to capture the full potential of its announced plan to deploy a Long Term Evolution (LTE) network and Open Development Initiative".

VW will acquire C Block spectrum for all states, except Alaska. This spectrum is subject to the FCC's open devices and applications requirements (ODAR). It also acquired 102 licenses in the A and B Blocks.

It added that it plans "to launch its LTE network in the 700 MHz spectrum in the 2010 timeframe". It added that "the breadth of the national C-block spectrum footprint, all in a single band and with a depth of 22 MHz, provides a speed and performance advantage that will be ideal for connecting a variety of consumer electronics, from wireless phones to medical devices to gaming consoles. In addition, the 102 individual licenses in the A and B-blocks provide additional growth capacity in key markets."

VW also stated that this will increase its "average spectrum depth per market to 82 MHz, from 52 MHz today."

AT&T announced that its "spectrum holdings position the company to further enhance the quality and reliability of existing wireless broadband and voice services that consumers are demanding, and set the foundation for more customer choices for new, more advanced wireless broadband technologies and services."

It acquired B Block spectrum in the 700 MHz auction.

It elaborated that "The complementary nature of the spectrum AT&T acquired through the FCC auction and from Aloha Partners gives AT&T the capacity to meet customer needs as the company moves to higher-speed 4G (fourth-generation) services. Upon final award of the auctioned B Block spectrum, AT&T's 700 MHz spectrum will cover 100 percent of the top 200 markets and 87 percent of the U.S. population".

It added that "With fewer costly and complex regulations, we have the certainty and flexibility needed to move faster in rolling out new mobile technology".

See also, story titled "FCC Releases Details of 700 MHz Auction" in TLJ Daily E-Mail Alert No. 1,735, March 24, 2008, and story titled "FCC Closes 700 MHz Auction" in TLJ Daily E-Mail Alert No. 1,734, March 20, 2008.

DHS Extends OPT to 29 Months As Congress Sits on H1B Reform Proposals

4/4. The Department of Homeland Security released an interim final rule [48 pages in PDF] that extends the period of Optional Practical Training (OPT) from 12 to 29 months for qualified F-1 non-immigrant students. This will compensate in a limited way for the Congress's failure to enact legislation to increase the annual cap on the number of H1B visas.

The DHS stated in a release that "The extension will be available to F-1 students with a degree in science, technology, engineering, or mathematics who are employed by businesses enrolled in the E-Verify program."

The Congress has not enacted legislation that would increase the number of H1B visas. These visas enable U.S. technology companies to employee highly skilled technology workers who are aliens.

Last month Microsoft's Bill Gates urged the Congress to raise the cap on H1B visas, and the DHS to extend the OPT program from 12 to 29 months.

The DHS's rule states that it "ameliorates the so-called ``cap-gap´´ problem by extending the authorized period of stay for all F-1 students who have properly filed H-1B petition and change of status request (filed under the cap for the next fiscal year) pending with USCIS. If USCIS approves the H-1B petition, the students will have an extension that enables them to remain in the United States until the requested start date indicated in the H-1B petition takes effect." (Parentheses in original.)

Sen. Arlen Specter (R-PA) stated in a release that "In order to remain competitive, the American technology sector needs to be properly equipped to attract and maintain exceptionally talented workers from the U.S. and abroad, including foreign students being trained at U.S. universities ... We need to be sure that we are supplying the necessary tools for the technology industry to be able to do that."

The DHS also requested public comments. The deadline is 60 days after publication of a notice in the Federal Register. As of the April 4, 2008, issue of the Federal Register, this publication had not yet occurred.

Congressional Inaction. There are numerous bills pending in the House and Senate that would increase the annual cap on H1B visas. See, for example,

Almost all of the sponsors and cosponsors of bills to provide significant increases in H1B visas are Republicans. In contrast, both the majority of the members of both the House and Senate are Democrats.

Gates' Testimony. On March 12, 2008, the House Science Committee (HSC) held a hearing to hear testimony [PDF] from Microsoft's Bill Gates. See also, statement of Rep. Bart Gordon (D-TN), and hearing charter [PDF].

Gates advocated revamping immigration rules for highly skilled workers, as well as increasing federal funding for basic scientific research, and providing incentives for private sector research and development.

He stated that "Congress's failure to pass high-skilled immigration reform has exacerbated an already grave situation. For example, the current base cap of 65,000 H-1B visas is arbitrarily set and bears no relation to the U.S. economy’s demand for skilled professionals. For fiscal year 2007, the supply ran out more than four months before that fiscal year even began. For fiscal year 2008, the supply of H-1B visas ran out on April 2, 2007, the first day that petitions could be filed and 6 months before the visas would even be issued. Nearly half of those who sought a visa on that day did not receive one." (Footnotes omitted.)

He continued that "This situation has caused a serious disruption in the flow of talented STEM graduates to U.S. companies. Because an H-1B petition generally can be filed only for a person who holds a degree, when May/June 2007 graduates received their degrees, the visa cap for fiscal year 2008 had already been reached. Accordingly, U.S. firms will be unable to hire those graduates on an H-1B visa until the beginning of fiscal year 2009, or October 2008."

"As a result," said Gates, "many U.S. firms, including Microsoft, have been forced to locate staff in countries that welcome skilled foreign workers to do work that could otherwise have been done in the United States, if it were not for our counterproductive immigration policies. Last year, for example, Microsoft was unable to obtain H-1B visas for one-third of the highly qualified foreign-born job candidates that we wanted to hire."

He asserted that "If we increase the number of H-1B visas that are available to U.S. companies, employment of U.S. nationals would likely grow as well. For instance, Microsoft has found that for every H-1B hire we make, we add on average four additional employees to support them in various capacities."

He therefore urged the Congress to increase the annual cap on H1B visas.

He also urged the DHS to extend the Optional Practical Training (OPT) in the manner just announced by the DHS.

Gates said that "we need to encourage the best students from abroad to enroll in our colleges and universities and, if they wish, to remain in the United States when their studies are completed. One interim step that could be taken would be to extend so-called Optional Practical Training (OPT), the period of employment that foreign students are permitted in connection with their degree program. Students are currently allowed a maximum of 12 months in OPT before they must change their immigration status to continue working in the United States. Extending OPT from 12 to 29 months would help to alleviate the crisis employers are facing due to the current H-1B visa shortage."

Gates also argued that the "Congress should create a streamlined path to permanent resident status for highly skilled workers. Rather than allowing highly skilled, well-trained innovators to remain for only a very limited period, we should encourage a greater number to become permanent U.S. residents".

EC Releases Paper on Private Rights of Action for Violation of Competition Law

4/3. The European Commission (EC) released a paper [PDF] titled "Damages actions for breach of the EC antitrust rules". It states that while "to date in practice victims of EC antitrust infringements only rarely obtain reparation of the harm suffered", it should be the case that "Any citizen or business who suffers harm as a result of a breach of EC antitrust rules ... must be able to claim reparation from the party who caused the damage."

This is not a change in law; rather, it is a paper that advances and discusses proposals for changes in procedural law. It states that the "current ineffectiveness of antitrust damages actions is best addressed by a combination of measures at both Community and national levels".

It also addresses rationales for these changes. For example, it states that greater opportunity for private rights of action will enable compensation of injured parties and "increase the likelihood that a greater number of illegal restrictions of competition will be detected".

Nellie KroesNellie Kroes, the EC's competition commissioner, stated in a release that "The suggestions in this White Paper are about justice for consumers and businesses, who lose billions of euros each and every year as a result of companies breaking EU antitrust rules. These people have a right to compensation through an effective system that complements public enforcement, whilst avoiding the potential excesses of the US system."

The paper argues that "indirect purchasers" should have a private right of action. It defines these as "purchasers who had no direct dealings with the infringer, but who nonetheless may have suffered considerable harm because an illegal overcharge was passed on to them along the distribution chain."

The paper also argues for a form of class actions and other "collective redress". However, contrary to the U.S. model, in which class action lawyers, nominally as legal counsel to a representative of a broad class, are certified to represent the entire class, regardless of whether or not individual members of that class want to be so represented. In contrast, the just released EC paper argues for "opt-in collective actions, in which victims expressly decide to combine their individual claims for harm they suffered into one single action."

The paper also states that these collective actions could be brought by "consumer associations, state bodies or trade associations" that are either "officially designated in advance" or "certified on an ad hoc basis by a Member State for a particular antitrust" action.

The paper also proposes changes regarding pretrial discovery, but only in vague terms. It proposes that "a minimum level of disclosure inter partes for EC antitrust damages cases should be ensured ... based on fact-pleading and strict judicial control of the plausibility of the claim and the proportionality of the disclosure request".

It states that national courts should have the power to compel discovery of material that "is both relevant to the case and necessary and proportionate", and the power to impose sanctions. The paper does not define the term "proportionate".

The paper argues that an antitrust judgment by a "national competition authority" (NCA) in one EU state should be given full faith and credit, and res judicata effect, in other EU states.

It states that the EC "sees no reason why a final decision on Article 81 or 82 taken by an NCA in the European Competition Network (ECN), ... should not be accepted in every Member State as irrebuttable proof of the infringement in subsequent civil antitrust damages cases."

The paper also addresses remedies, including damages. It states that the plaintiff should be able to recover "full compensation of the real value of the loss suffered", and this should include "loss of profit as a result of any reduction in sales and encompasses a right to interest".

It also states that the EC will "draw up a framework with pragmatic, non-binding guidance for quantification of damages in antitrust cases, e.g. by means of approximate methods of calculation or simplified rules on estimating the loss."

Notably, unlike under U.S. law, there is no proposal for the award of treble damages.

The paper discusses, but takes no firm positions on awards of costs and attorneys fees. It merely "encourages" member states to consider certain principles.

The paper does not address declaratory or injunctive relief. Nor does it discuss antitrust standing and jurisdiction.

Finally, this paper addresses procedural changes that would facilitate private rights of action. It is not a collection of proposals for changes to substantive competition law.

Court of Appeals Reinstates Complaint Against Facebook Founders

4/3. The U.S. Court of Appeals (1stCir) issued its opinion in ConnectU v. Zuckerberg, reversing the judgment of the District Court, which dismissed the case for lack of jurisdiction.

This is a dispute arising out of the formation of the social networking web sites known as Facebook and ConnectU. The plaintiff, ConnectU LLC, alleges that Mark Zuckerberg and other defendants stole its trade secrets and infringed its software copyright to create the Facebook web site. However, this opinion does not go to the merits of any of the claims. Rather, this opinion deals only with jurisdiction.

ConnectU filed its original complaint in U.S. District Court (DMass) alleging only state law claims, including misappropriation and unauthorized use of confidential source code and business plan. This complaint based its claim of federal jurisdiction upon diversity of citizenship. ConnectU promptly filed an amended complaint that also pled copyright infringement, a federal claim. This complaint based its claim of jurisdiction on the federal claim.

The District Court dismissed the amended complaint on the basis that there was not complete diversity of citizenship. The Court of Appeals reversed, and remanded to the District Court for consideration of both the federal (under federal question jurisdiction) and the state law (under supplemental jurisdiction) claims.

This case is ConnectU LLC v. Mark Zuckerberg, et al., U.S. Court of Appeals for the 1st Circuit, App. Ct. No. 07-1796, an appeal from the U.S. District Court for the District of Massachusetts, Judge Douglas Woodlock presiding.

En Banc 9th Circuit Panel Rejects Section 230 Immunity in Case

4/3. An en banc panel of the U.S. Court of Appeals (9thCir) issued its 8-3 opinion [PDF] in FHCSFV v., a Section 230 immunity case.

The majority held, as did the three judge panel, that an interactive computer service, such as, can be held liable for the speech of users, despite language to the contrary in Section 230. Moreover, the majority held, the web site's search and e-mail notification functions, have no immunity.

This opinion is arguably inconsistent with both the language and purpose of Section 230, as well as the opinions of other circuits. This opinion argues that it is distinguishable from other Section 230 opinions because users provide information in response to an online questionnaire. This, the 9th Circuit asserts, causes or induces the users to make statements, and hence, makes a content creator.

This opinion will likely invite government regulation of internet speech, and private litigation to suppress internet expression. It may also lead some interactive web site operators to refrain from allowing users to post content out of fear of litigation and liability under this court's theory of inducement of speech.

See, full story.

FCC Releases Agenda for April 10 Meeting

4/3. The Federal Communications Commission (FCC) released a tentative agenda [4 pages in PDF] for its event scheduled for April 10, 2008, titled "Open Commission Meeting".

1. The FCC's agenda states that it is scheduled to approve a Report and Order (R&O) and Order Proposing Modification increasing the spectrum available for code division multiple access (CDMA) satellite systems in the 1.6/2.4 GHz Big LEO bands to provide ancillary terrestrial component (ATC) service from 11 MHz to 19.275 MHz, and rules regarding interference.

See, the FCC's Second Order on Reconsideration, Second Report and Order, and Notice of Proposed Rulemaking [28 pages in PDF], adopted on November 7, 2007, and released on November 9, 2007. It is FCC 07-194 in IB Docket No. 07-253.

2. The FCC's agenda states that it is scheduled to approve a Notice of Proposed Inquiry in response to a Petition [60 pages in PDF] filed by nine public safety organizations regarding 911 call forwarding and carriers' blocking options for non-service initialized (NSI) phones.

The petition states that "Fraudulent 911 calls from NSI devices are significantly contributing to the overtaxing of the call receipt and call processing portions of the 911 service delivery system. PSAPs receive thousands of these calls each month and have little or no power to stop them. The calls divert essential resources from the life-saving mission of 911 and inhibit PSAPs' ability to answer and respond to true emergency calls. The 911 Entities respectfully request that the Commission address this very serious issue by further considering the call-blocking option and other possible solutions to the problem."

3. The FCC's agenda states that it is scheduled to approve a R&O regarding implementation of the Warning, Alert and Response Network (WARN) Act.

See, FCC's Notice of Proposed Rulemaking (NPRM) [PDF], adopted and released on December 14, 2007. It is FCC 07-214 in PSHS Docket No. 07-287.

The WARN Act was enacted in late 2006 a part of the port security bill. It establishes a process for commercial mobile service providers to voluntarily elect to transmit emergency alerts. See also, stories titled "Bush Signs Port Security Bill" in TLJ Daily E-Mail Alert No. 1,469, October 16, 2006, and "House and Senate Approve Port Security Bill With Tech Provisions" in TLJ Daily E-Mail Alert No. 1,461, October 4, 2006.

4. The FCC's agenda states that it is scheduled to approve an Order addressing several petitions filed by TracFone Wireless in 2004 for designation as an Eligible Telecommunications Carrier (ETC), eligible only to receive universal service Lifeline support subsidies, in the states of New York, Florida, Virginia, Connecticut, Massachusetts, Alabama, North Carolina, Tennessee, Delaware, and New Hampshire, and in the District of Columbia. See also, TracFone's notice of ex parte communication [PDF] of April 1, 2008. This is CC Docket No. 96-45.

5. The FCC's agenda also includes several Notices of Apparent Liability for Forfeiture alleging violation of the FCC's rules banning importation and interstate shipment of analog only television receivers, or violation of the FCC's rules regarding labeling of analog only TV receivers.

This event is scheduled for 9:30 AM on Thursday, April 10, 2008, in the FCC's Commission Meeting Room, Room TW-C305, 445 12th Street, SW. The FCC's recent events titled "Open Commission Meeting" have rarely been held at the time announced by the FCC. The FCC does not always take up all of the items on its published program. The FCC sometimes adds items to the program without providing the "one week" notice required 5 U.S.C. § 552b. The FCC usually does not release at its events copies of the items that it adopts at its events.

Secretary Gutierrez Writes Sen. Leahy Regarding Patent Reform

4/3. Secretary of Commerce Carlos Gutierrez sent a letter [4 pages in PDF] to Sen. Patrick Leahy (D-VT), the Chairman of the Senate Judiciary Committee (SJC), regarding S 1145 [LOC | WW], the "Patent Reform Act of 2007".

First, he expressed support for the applicant quality submissions (AQS) provisions in the bill.

Second, he expressed opposition to the bill's inequitable conduct language. He wrote that the Bush administration "recognizes and supports statutory changes to the doctrine of inequitable conduct".

He also wrote that the "standard should more clearly target actual fraud affecting the examination process and preserve judicial discretion in application of appropriate sanctions. However, the Administration strongly opposes any statutory changes to the doctrine of inequitable conduct in the absence of a strong provision requiring Applicant Quality Submissions. Applicant quality standards and inequitable conduct reform are inextricably linked."

He argued that "Inequitable conduct reform alone, without Applicant Quality Submissions, would merely invite fraud on the patent system."

Third, he wrote that the administration supports "establishment of an effective, efficient post-grant patent review process that truly functions as a lower-cost alternative to litigation for those who want to challenge a patent's validity. We support the structural approach to post-grant review as outlined in the bill (including a first window of opportunity to challenge a patent and a narrow second window throughout the patent life), provided that it has sufficient access requirements and estoppel effects to ensure that the review procedures are more efficient, manageable and timely." (Parentheses in original.)

He added that "The Administration will oppose a post-grant structure that does not protect against frivolous harassment of patent holders."

Fourth, he wrote that the administration's "overriding concern continues to be proposed revisions to the law governing the appropriate assessment of damages in patent infringement cases." He said that "The incentive to innovate must continue to be supported by an assurance to patent owners that they will be fully compensated for harm caused by infringement."

Gutierrez elaborated that "While the Administration opposes language that limit a court's discretion, we would support statutory changes to current damages law that have the effect of directing or guiding courts to clearly identify the factors and evidence relevant to the determination of damages and to consider only those factors when making their determinations. Such a ``gatekeeper´´ function would promote transparency without limiting necessary discretion."

On February 4, 2008, Nathaniel Wienecke, of the Department of Commerce, sent a letter [6 pages in PDF] to Sen. Leahy (D-VT) announcing and explaining the Bush administration's strong opposition to S 1145 in its current form. See, story titled "Bush Administration Opposes Senate Version of Patent Reform Act" in TLJ Daily E-Mail Alert No. 1,711, February 5, 2008.

At 11:00 AM.on April 4, Jon Dudas, head of the U.S. Patent and Trademark Office (USPTO) will hold a telephonic news conference regarding S 1145.

People and Appointments

4/3. Kathleen Abernathy was elected to the Board of Directors of the Progress & Freedom Foundation (PFF). She was a Commissioner of the Federal Communications Commission (FCC) from 2001 to 2005. She now works for the law firm of Akin Gump. See, PFF release.

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4/3. The U.S. District Court (DC) issued an order [PDF] in Freeland v. Iridium, a class action securities fraud action. It grants in part, and denies in part, Motorola's motion for summary judgment. This case is Parker Freeland v. Iridium World Communications, LTD., et al., U.S. District Court for the District of Columbia, D.C. No. 99-1002.

4/3. The National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) released its SP 800-39 [67 pages in PDF], titled "DRAFT Managing Risk from Information Systems: An Organizational Perspective". April 30, 2008 is the deadline to submit comments.

4/1. The National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) release its SP 800-116 [55 pages in PDF], titled "DRAFT A Recommendation for the Use of PIV Credentials in Physical Access Control Systems (PACS)". May 12, 2008, is the deadline to submit comments.

NTIA Completes Mid-Term Review of JPA with ICANN

4/2. The National Telecommunications and Information Administration (NTIA) issued a release that states that it conducted a "mid-term review" of its Joint Project Agreement (JPA) with the Internet Corporation for Assigned Names and Numbers (ICANN).

The NTIA and ICANN signed this JPA on September 29, 2006. The ICANN now asserts that the JPA is no longer necessary. The NTIA continues to disagreee.

The NTIA stated that "there was general consensus on the need to preserve the security and stability of the DNS and the recognition that ICANN is the appropriate technical coordinator of the Internet DNS. ICANN has made significant progress in several key areas, but most participants agree that important work remains to increase institutional confidence through implementing effective processes that will enable: long term stability; accountability; responsiveness; continued private sector leadership, stakeholder participation; increased contract compliance; and enhanced competition."

It added that "the Internet Assigned Numbers Authority (IANA) functions contract was not part of the JPA mid-term review."

The NTIA also stated that "Over the next eighteen months, NTIA will continue to monitor ICANN’s performance in meeting the ten responsibilities articulated in the annex to the JPA. Furthermore, NTIA remains fully committed to the 2005 U.S. Principles on the Internet's Domain Name and Addressing System."

The Information Technology and Innovation Foundation (ITIF) submitted a comment to the NTIA in February in which it argued that "While ICANN cites many accomplishments, none of these provide sufficient reason for NTIA to terminate the JPA with ICANN. Instead the Department of Commerce should continue to support the management of the Internet domain name system by the private sector, and develop a framework for the long-term viability of ICANN. Until that framework is available, the Department of Commerce must continue to maintain its historic role and relationship with ICANN."

See also, NTIA notice regarding this review, Federal Register, November 2, 2007, Vol. 72, No. 212, at Pages 62220-62222.

DHS Grants REAL ID Extensions

4/2. The Department of Homeland Security (DHS) announced in a release that it has "granted REAL ID extensions to all 56 U.S. jurisdictions", including the state of Maine.

The REAL ID Act of 2005 federalizes the state identification document process, and mandates state electronic databases and data sharing. The DHS has also promulgated regulations. The granting of extensions delays the resolution of disputes between certain states and the DHS regarding the statute and rules.

The DHS asserted in its release that these extensions ensure that "driver's licenses and ID cards across the country will achieve a higher security standard, and that all will continue to be acceptable for official purposes after the May 11, 2008 deadline mandated by Congress in the REAL ID Act of 2005."

The DHS added that Maine "committed today to take significant additional steps to achieve a level of security commensurate with REAL ID. Specifically, Maine Governor John Baldacci will seek legislation to halt Maine’s current practice of issuing licenses to those not lawfully present in the United States. Maine will also begin capturing and retaining photographs of individuals applying for a state ID, even if no ID is issued."

See also, story titled "Maine Rejects READ ID Act" in TLJ Daily E-Mail Alert No. 1,528, January 29, 2007.

People and Appointments

4/2. President Bush nominated Elaine Duke to be Under Secretary for Management at the Department of Homeland Security (DHS). See, White House release.

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4/2. The Copyright Royalty Judges published a notice in the Federal Register in which they announced "the commencement of a proceeding to determine the Phase I distribution of 2000, 2001, 2002, and 2003 royalties collected under the cable statutory license." The deadline to submit petitions to participate, and the accompanying $150 fee, is May 2, 2008. See, Federal Register, April 2, 2008, Vol. 73, No. 64, at Pages 18004-18005.

Grand Jury Indicts Software Engineer for Theft of Communications Software Trade Secrets

4/1. A grand jury of the U.S. District Court (NDIll) returned an indictment [7 pages in PDF] that charges Hanjuan Jin with three counts of violation of 18 U.S.C. § 1832(a)(3) in connection with her alleged theft of  trade secrets of her employer, regarding E911 communications software, just prior to quitting her job to go to work for a company in the People's Republic of China (PRC).

The indictment does not identify the U.S. company, other than as "Company A". However, it states that the company is "based in the Chicago suburbs" and that its sells "telecommunications products and services". The Department of Justice's (DOJ) Office of the U.S. Attorney for the Northern District of Illinois stated in a release [PDF] that Jin lives in Shaumburg, Illinois.

Motorola is based in Shaumburg, a suburb of Chicago.

The indictment states the Jin was a "software engineer" who developed "telecommunications software" for her U.S. employer.

The indictment alleges while working for this U.S. company, she negotiated for employment with a company based in the PRC. Then, within a three day span she "downloaded technical documents" from her U.S. employer's "secure internal computer network", notified her U.S. employer of her resignation, and attempted to board a flight to the PRC, with a one way ticket, and "over 1,000 electronic and paper documents belonging to" her U.S. employer.

The three count indictment lists three documents by title: "Support for Horizontal Dispatch Networking SAD-172", "EOTD-based E911 Location without HAMR", and "Base Station System MOBIS Call Processing Interface Specification".

Communications centers in which the person taking calls is also the dispatcher are sometimes referred to a "horizontal dispatch centers". EOTD may be an acronym for "enhanced observed time difference of arrival". MOBIS may be an acronym for "mobile system"; although, it is also an acronym for "mission oriented business integrated services".

Section 1823(a)(3) of the Criminal Code provides in part that "Whoever, with intent to convert a trade secret, that is related to or included in a product that is produced for or placed in interstate or foreign commerce, to the economic benefit of anyone other than the owner thereof, and intending or knowing that the offense will, injure any owner of that trade secret, knowingly ... receives, buys, or possesses such information, knowing the same to have been stolen or appropriated, obtained, or converted without authorization ... shall ... be fined under this title or imprisoned not more than 10 years, or both".

The DOJ also seeks forfeiture of one laptop computer, one external data storage device, three hard drives, one flash memory thumb device, and three CD-Rs.

Patrick Fitzgerald, the U.S. Attorney for the Northern District of Illinois, stated in the DOJ release that "We have to be vigilant in preserving the integrity of trade secrets to provide an honest playing field among business competitors, whether foreign or domestic. Trade secrets often are a business’s most valuable assets, and protecting them from theft and betrayal is a high priority for law enforcement".

This case is U.S.A. v. Huanjan Jin, U.S. District Court for the Northern District of Illinois, Eastern Division, D.C. No. 08 CR 192.

Martin Proposes Dismissal of Skype Petition

4/1. Federal Communications Commission (FCC) Chairman Kevin Martin gave a speech [4 pages in PDF] in Las Vegas, Nevada, in which he discussed wireless communications.

He discussed the recently closed 700 MHz auction, deployment of wireless broadband services, and wireless networks that are open to devices and applications. He then said that the FCC should dismiss Skype's petition for a declaratory ruling.

He stated that the FCC "worked to create a more open platform on a portion of the 700 MHz spectrum", and that "A network that is more open to devices and applications can help foster innovation on the edges of the network". He also repeated his opposition to mandating broader network neutrality requirements.

He added that "Verizon Wireless has committed to open its entire network to devices and applications of consumers’ own choosing. More and more wireless providers, including T-Mobile and Sprint through their participation in the Open Handset Alliance, and AT&T, are also embracing more openness in terms of devices and applications."

He then said that "In light of the industry’s embrace of a more open wireless platform, it would be premature to adopt any other requirements across the industry. Thus, today I will circulate to my fellow commissioners an order dismissing a petition for declaratory ruling filed by Skype that would apply Carterfone requirements to existing wireless networks."

On February 20, 2007, Skype Communications filed a petition [36 pages in PDF] with the FCC requesting that the FCC "declare that wireless carrier services are subject to the Carterfone principle that consumers have the right to attach any non-harmful device of their choosing to the network and that this, by necessity, includes users' rights to run Internet applications of their choosing."

The petition asks that the Carterfone principle be applied to wireless carriers. However, the petition is also in the nature of a request for application of certain network neutrality principles to wireless carriers that provide broadband internet access.

Skype provides voice of internet protocol (VOIP) applications. See, story titled "Skype Files Petition Requesting that FCC Declare that Carterfone Principles Apply to Wireless Carriers" in TLJ Daily E-Mail Alert No. 1,546, March 5, 2007.

With respect to the failed D Block auction, Martin said that "the FCC is now evaluating its options for this spectrum".

He also stated that "we need to ensure that our enhanced 911 rules provide meaningful automatic location information".

Gigi Sohn, head of the Public Knowledge, expressed disappointment in release with Martin's Skype statement. She said that "The plans announced by one cellular company to be more open to devices and applications are just that -- plans. There are many details yet to be worked out, and consumers may not see the benefits of a fully opened equipment and application wireless service. Whatever benefits do come about may not be known for some time."

She added that "There are no subscribers today in the 700 MHz spectrum block. Any benefits to subscribers in that one small slice of spectrum, to which some open access rules will apply, won’t be known for many years."

People and Appointments

4/1. The Senate confirmed Kevin O'Connor to be the Associate Attorney General. See, Congressional Record, April 1, 2008, at Page S2312

4/1. Rep. Steny Hoyer (D-MD), the House Majority Leader, promoted Deputy External Relations Director Sudafi Henry to Counsel and Senior Policy Advisor. He replaces Gina Mahony, who will go to work for Brownstein Hyatt Farber & Schreck. See, release.

4/1. Sen. Arlen Specter (R-PA) gave a speech in the Senate regarding delay of judicial nominations by Senate Democrats. He said that "there has not been one confirmation of a Federal judge this year. Since September 25th of last year, there has only been one hearing for a circuit judge, and that was on February 21, in the midst of a recess". He added that "Now we have a desperate situation where judicial emergencies exist in many of these courts, and the Senate is not acting to confirm judges to fill those seats." Sen. Specter did not disclose that Senate Democrats are not acting on nominations in part out of their expectations that a Democrat will be elected President in November of 2008, and that this Democratic President will then appoint Democrats to these open judicial positions.

More News

4/1. The Federal Trade Commission (FTC) issued a release regarding the do not call registry and cell phones. It wrote that "despite the claims made in e-mails circulating on the Internet, consumers should not be concerned that their cell phone numbers will be released to telemarketers in the near future, and that it is not necessary to register cell phone numbers on the National Do Not Call (DNC) Registry to be protected from most telemarketing calls to cell phones."

4/1. The House amended and approved HR 1312 [LOC | WW], the "Arts Require Timely Service Act", or ARTS Act, a bill to amend the Immigration and Nationality Act to expedite adjudication of employer petitions for aliens of extraordinary artistic ability.

4/1. The Office of the U.S. Trade Representative (OUSTR) announced that USTR Susan Schwab and Ukrainian Minister of Economy Bohdan Danylyshyn signed a Trade and Investment Cooperation Agreement (TICA). The OUSTR stated in a release that this agreement provides for the creation of a U.S.-Ukraine Council on Trade and Investment that will address, among other issues, intellectual property, investment, and market access.

4/1. The U.S. Patent and Trademark Office (USPTO) announced in a release that the USPTO and the Intellectual Property Office of Australia "will launch a new trial cooperation initiative called the Patent Prosecution Highway" that will "leverage fast-track patent examination procedures already available in both offices to allow applicants in both countries to obtain corresponding patents faster and more efficiently."

Go to News from March 26-31, 2008.