How Do I Change or Modify Child Support that is Owed to Me or that I Owe?
Virginia Code § 20-108 provides that a court may modify a prior order that awarded child support. To change the court-ordered child support payments, there must have been a material or substantial change in circumstances. The party petitioning for an increase or decrease in child support bears the burden of proof by a preponderance of the evidence that a material change in circumstance occurred that justified that change. Edwards v. Lowry, 232 Va. 110, 112 (1986).
A prominent example of a material change is when a parent has a change in financial circumstances. If a parent were to motion for a reduction in child support payments, they must make a full and clear disclosure regarding his or her ability to pay. Hammers v. Hammers, 216 Va. 30, 31-32 (1975). However, there are some instances where the court will not modify a child support payment. If a parent takes on a new business venture or changes employment, he or she bears the risk of losing money, yet they are still obligated to pay child support. Antonelli v. Antonelli, 242 Va. 152, 156 (1991). Furthermore, case law holds “the risk of reduction in income as a result of a parent’s intentional act, even if done in good faith, is insufficient grounds for reducing the amount of support due under a pre-existing order.” Hamel v. Hamel, 18 Va. App. 10, 13 (Va. Ct. App. 1994). Lastly, if a parent has a reduction in income that is due to his own voluntary acts or to his own neglect, he must still pay child support. Hammers, 216 Va. at 31-32.
Another example of a material change in circumstance is when the needs of a child changes, including childcare costs. Parents may argue that as their children get older they don’t need to be placed in childcare anymore, and thus a reduction in child support payments may be justified. Shoup v. Shoup, 37 Va. App. 240, 254 (Va. Ct. App. 2001). However, some parents argue for an increase in support because their children may attend private school or even participate in extra-curricular activities that require greater sums of money. Joynes v. Payne, 35 Va. App. 386, 407 (Va. Ct. App. 2001).
Courts will also consider the change of physical custody from one parent to another as a material change in circumstance. See Rippe v. Rippe, 3 Va. App. 506 (1986). Also, if a parent intentionally withholds visitation rights from the other parent without a sufficient reason, the courts may consider this to be a material change in circumstance as well. Va. Code Ann. § 20-108.
There are some instances where the court does not consider an event to be a material change in circumstance, and therefore will not increase, decrease, or terminate child support. For instance, if a parent earns income from secondary employment for the purpose of paying off a previous court-ordered child support debt, that income will not be calculated into his or her gross income. Va. Code Ann. § 20-108.2(C). Additionally, the court will not take into consideration the financial responsibilities of having other children who are not a party to the current proceeding, and thus they will not likely modify the child support payments in such instances. Id.
For information about how to initially calculate child support, please see my prior post: How Do I Calculate the Amount of Child Support I Owe or that is Owed to Me?
How Do I Calculate the Amount of Child Support I Owe or that is Owed to Me?
“[P]arents owe a duty of support to their minor children.” Kelley v. Kelley, 248 Va. 295, 298 (1994). The payment of child support cannot be contracted around by the parents, and furthermore, a court cannot be barred from exercising its power to calculate child support from such an agreement. Id.
Virginia Code § 20-108.2(B) provides a guideline of monthly basic child support obligations. The basic child support obligation is calculated based on the combined income of the parents and how many children the couple has (both natural born and adopted). Id. A court may allow an exemption that would make the child support obligation lower than the statutory minimum provided by the guideline. Id. Exemptions may include: (1) if the obligor is “unable to pay child support because they lack sufficient assets from which to pay the support and who, in addition, are institutionalized in a psychiatric facility”; (2) if the obligor is “imprisoned for life without chance of parole”; (3) if the obligor is medically disabled; or (4) if the obligor is “involuntarily unable to produce an income.” Furthermore, if the gross income of the obligor is equal to or less than 150% of the federal poverty line, the court may set an amount that is lower than the statutory minimum, provided that the amount doesn’t impair the other parent’s ability to maintain sufficient housing and provide basic needs for the child. Id.
When the court computes the parent’s income, it includes income from: “salaries, wages, commissions, royalties, bonuses, dividends, severance pay, pensions, interest, trust income, annuities, capital gains, social security benefits, workers’ compensation benefits, unemployment benefits, disability insurance benefits, veterans’ benefits, spousal support, rental income, gifts, prizes, or awards.” Va. Code Ann. § 20-108.2(C). However, there are some incomes that are not included when computing child support payments. These include: “benefits from public assistance and social services programs, federal supplemental security income benefits, child support received, or income received by the payor from secondary employment income” that is for the purpose of paying a court-ordered child support debt from another relationship. Id. Examples of secondary employment incomes are “incomes from an additional job, from self-employment, or from overtime employment.” Id. In addition, if one of the parents is already paying child support from a previous relationship and that child is not a party to the current proceeding, then that amount will be deducted from the gross income of that parent. Id.
As per the establishment of a child support obligation, both parents are also required to pay “any reasonable and necessary unreimbursed medical or dental expenses. Va. Code Ann. § 20-108.2(D). This is calculated pursuant to the parents’ proportion of gross incomes. Id. These types of expenses may include “eyeglasses, prescription medication, prosthetics, orthodontics, and mental health or developmental disabilities services, such as services provided by a social worker, psychologist, psychiatrist, counselor, or therapist.” Id. A court will also take into consideration the costs for health care coverage, vision care coverage, and dental care coverage and add those expenses to the basic child support obligation. Va. Code Ann. § 20-108.2(E). Furthermore, if the custodial parent puts the child in some sort of licensed child-care system, those child-care costs will be added to the support obligation. Va. Code Ann. § 20-108.2(F). However, the court must “consider the willingness and availability of the noncustodial parent to provide child care personally in determining whether child-care costs are necessary or excessive.” Id.
To rebut the presumption of the amount of child support set out by the statutory guidelines, the court evaluates all the relevant evidence. Va. Code Ann. § 20-108.1(B). This leads to a very fact specific inquiry and every case will be different. Id. The court will look at fifteen factors, but each factor may not be applicable in every case.
Virginia Code § 20-108.1(B) lists fifteen factors that Virginia courts evaluate to determine a rebuttable presumption of child support.
Stay tuned for my next blog post "How Do I Change or Modify Child Support that is Owed to Me or that I Owe?"
How Do I Change or Modify the Amount of Spousal Support I am Paying or Receiving?
There are two ways a court may change or modify a spousal support award: (1) where both parties agree to modify the amount, or (2) where a material change in circumstances or change in event happens that would involve a change in the spousal support amount.
The most efficient way to change a spousal support order is by agreement of the parties because a court cannot unilaterally change an agreed upon spousal support award according to the terms or stipulation or contract signed by both of the parties. See Blackburn v. Michael, 30 Va. App. 95, 100 (Va. Ct. App. 1999).
However, if the parties cannot agree to a modification themselves, then upon the petition of either party, a “court may increase, decrease, or terminate the amount or duration” of any spousal support using the factors mentioned in my blog post How Do I Calculate the Amount of Spousal Support I owe or that is Owed to Me? Va. Code Ann. § 20-109(B). See also Thomas v. Thomas, 217 Va. 502, 505 (1976) (“where changed circumstances are demonstrated,” either spouse can petition for an increase, decrease, or termination of spousal support). The court may make these changes if (1) there has been a material change in the circumstances for either of the parties, or (2) if an event the court anticipated during the duration of the award did not in fact happen. Id.
The party moving for a modification of spousal support has additional burdens and thresholds to overcome. He or she must prove “both a material change in circumstances and that this change warrants a modification of support. Schoenwetter v. Schoenwetter, 8 Va. App. 601, 605 (Va. Ct. App. 1989). The material change in a spouse’s circumstance must occur after the court’s award decree. Hiner v. Hadeed, 15 Va. App. 575, 577 (Va. Ct. App. 1993). The change in circumstances that allow a court to modify the spousal support must be financial and economic ones. Hollowell v. Hollowell, 6 Va. App. 417, 419 (Va. Ct. App. 1988).
For example, the court in Reece v. Reece granted the husband’s request for a decrease in spousal support because he “proved that his financial circumstances had materially changed . . . after he involuntarily lost his job” as opposed to voluntarily leaving his job. Reece v. Reece, 22 Va. App. 368, 373 (Va. Ct. App. 1996). Additionally, there was no evidence that the husband refused a comparable employment opportunity that would “deliberately minimized his income for the purpose of reducing his ability to support [his] wife.” Id. at 374-75.
But, simply losing your job is not necessarily enough to secure a reduction in spousal support. For example, in Smull, the husband was working full time at a corporation when the corporation lost a contract. Smull v. Smull, 45 Va. Cir. 336, 336 (Va. Cir. Ct. 1998). The husband was involuntarily placed on part time duty with the corporation. Id. He then decided to begin a new career that paid much lower than his corporate job. Id. Subsequently, the court denied his request to decrease his spousal support payments reasoning that his inability to pay was due to his own negligence of not securing a comparable job that had the same earning capacity as his corporation job. Id. at 337.
Spousal support may not last forever. In fact, there are three common instances that usually end spousal support.
If a spouse whom is receiving spousal support and has been habitually cohabitating with another person in a relationship that is analogous to a marriage for one year or more, the other spouse can petition the spousal support. Va. Code Ann. § 20-109(A). The court must terminate the spousal support in this situation unless the divorced parties had a stipulation or contract that said otherwise or unless the spouse receiving the spousal support proves by a preponderance of the evidence that the termination of the support would be unconscionable. § 20-109(A)(i)-(ii).
Va. Code Ann. § 20-110 states that if the spouse receiving the spousal support remarries, then the spousal support must terminate the date of the new marriage. The spouse receiving the support has an affirmative duty to notify the other spouse paying the support to cease payments. Id.
Unless the parties had some sort of stipulation or contract that stated otherwise, spousal support must terminate upon the death of either of the parties. Va. Code Ann. § 20-109(D).
How Do I Calculate the Amount of Spousal Support I Owe or that is Owed to Me?
Formally known as “alimony,” when one spouse needs more financial support than the other, the spouse in need may petition the court for spousal support after the divorce complaint has been filed. The traditional example is a stay-at-home mom who takes care of the kids while the dad leaves the home for a 9 to 5 office job. Because mom’s job did not produce a financial income that she could rely upon after that marriage ended, courts allow mom (or the spouse in need of financial assistance) to file for spousal support.
When determining the amount of spousal support, the court evaluates all relevant evidence, which leads to a very fact specific inquiry. Va. Code Ann. § 20-107.1(E). In other words, every case will be different and the court will look at thirteen factors, but each factor may not be applicable in every case.
Virginia Code § 20-107.1 lists thirteen factors that Virginia courts evaluate to determine spousal support.
1. The obligation, needs and financial resources of the parties, including income from all pensions, profit sharing, or retirement places. The Virginia State Bar states that the courts place much significance on the payor’s ability to pay the support and do not overweigh the payee’s need for the spousal support.
2. The standard of living established during the marriage, and not the standard of living a spouse lives after the married dissolved. See Furr v. Furr, 13 Va. App. 479 (Va. Ct. App. 1992) (the court increased the spousal support award for the wife, holding that the wife experienced a marked reduction in her standard of living due to a dramatic rise in living expenses after the divorce, but not necessarily due to the divorce itself).
3. How long the marriage lasted. The Virginia State Bar has stated that “[a] financially dependent spouse of a long-term marriage is more likely to receive an award of spousal support than one who has been in a short marriage.” See also Keyser v. Keyser, 7 Va. App. 405 (Va. Ct. App. 1988) (finding that four years of marriage is considered a relatively short marriage and that having a relatively short marriage alone does not bar a spouse from rights and interests in the marital assets); Robinson v. Robinson, 45 Va. App. 682 (Va. Ct. App. 2005) (husband only paid spousal support for seventeen months because marriage lasted relatively short duration); Baer v. Baer, No. 2278-94-1, 1996 Va. App. LEXIS 73 (Va. Ct. App. Feb. 6, 1996) (holding that the short duration of a marriage is considered when applied with other spousal support factors, but cannot be the only factor to consider).
4. The age and physical and mental condition of the parties and any special circumstances of the family. See Cooper v. Cooper, 4 Va. Cir. 154 (Va. Cir. Ct. 1984). (the court took into consideration that the wife had multiple sclerosis, was disabled, and received Social Security disability benefits and was unable to participate in gainful employment when ruling in favor of spousal support to the wife).
5. The extent to which the age, physical or mental condition or special circumstances of any child of the parties would make it appropriate that a party not seek employment outside of the home. See Block v. Block, 2005 Va. App. LEXIS 82 (Va. Ct. App. Mar. 1, 2005) (“[t]he court particularly referenced the income and earning capacities of the parties . . . the special needs of the one child; and the decisions regarding employment” for the spousal support award).
6. The contributions, monetary and nonmonetary, of each party to the well-being of the family. See Holmes v. Holmes, 7 Va. App. 472 (Va. Ct. App. 1988) (the court noted that while the husband provided almost all the monetary contributions, the wife provided a significant amount of nonmonetary contributions including the duties of homemaker, mother, and military officer’s wife).
7. The property interests of the parties, both real and personal, tangible and intangible. See Martin v. Martin, 2009 Va. App. LEXIS 80 (Va. Ct. App. Feb. 24, 2009) (holding that the trial court properly considered both real and personal property, tangible and intangible when ruling that it was not going to put the wife in a position of trying to sell the marital home for the purpose of having a lower mortgage payment).
9. The earning capacity, including the skills, education and training of the parties and the present employment opportunities for persons possessing such earning capacity. See Srinivasan v. Srinivasan, 10 Va. App. 728 (Va. Ct. App. 1990) (the court took note that the wife was capable of earning a certain amount per year, yet held that she was entitled to a reasonable time to secure employment, and thus was awarded spousal support).
10. The opportunity, ability, and/or the time and costs involved for a spouse to acquire the appropriate education, training and employment to obtain the skills needed to enhance his or her earning ability. See Holmes v. Holmes, 7 Va. App. 472 (Va. Ct. App. 1988) (the court awarded the wife spousal support by considering the wife’s limited opportunity to seek training and employment at the age of sixty-four).
11. The decisions regarding employment, career, economics, education and parenting arrangements made by the parties during the marriage and their effect on present and future earning potential, including the length of time. See Hubbard v. Hubbard, 2008 Va. App. LEXIS 504 (Va. Ct. App. Nov. 18, 2008) (the court took into consideration that both the husband and wife agreed that wife would leave workforce to take care of four children while he worked).
12. The extent to which either party has contributed to the attainment of education, training, career position or profession of the other party. See Hicks v. Hicks, 2012 Va. Cir. LEXIS 80 (Va. Cir. Ct. June 13, 2012) (the court took into consideration that the husband financially supported the wife’s college education during the marriage and thus reduced the amount of spousal support given to her).
In setting the spousal support amount, a court “a court must look to current circumstances and what the circumstances will be ‘within the immediate or reasonably foreseeable future,’ not to what may happen in the future.” Srinivasan v. Srinivasan, 10 Va. App. 728, 735 (Va. Ct. App. 1990) (quoting Young v. Young, 3 Va. App. 80, 81-82 (Va. App. Ct. 1986)).
These factors help to determine the nature, amount, and duration of the spousal support. The court can order that the spousal support needs to be paid in periodic payments for a defined duration, in periodic payments for an undefined duration of time, in one lump sum, or a combination of any of these. Va. Code. Ann. § 20-107.1(C).
Stay tuned for my next blog post about how to change or modify the spousal support award due to a material change in circumstances.


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Code of Criminal Procedure, 1973 – Section 125 - Order for maintenance of wives, children and parents - Magistrate can entertain separate applications or even entertain a common application for several months of default and pass appropriate order - If there are arrears of more than one month, then the imprisonment exceeding the period of one month can be imposed.
The Magistrate, in exercise of the powers under Section 125 of Cr.P.C., is empowered to sentence the defaulting person for a term of one month for each month of default. In other words, it is open for the Magistrate to award the sentence up to maximum one month for each month's default made by the person ordered to pay the maintenance. Thus, the maximum limit of sentence of one month referred to in Sub-section (3) of Section 125 of Cr.P.C. is applicable for each month of default. Even the Magistrate can entertain separate applications or even entertain a common application for several months of default and pass appropriate order. If there are arrears of more than one month, then the imprisonment exceeding the period of one month can be imposed.
In the instance case, in lieu of maximum 12 defaults, the Magistrate has imposed imprisonment for 12 months. However, the same is outer limit and lesser imprisonment can be imposed. Such imprisonment will be followed until the payment is made. In view of the same, I deem it appropriate to reduce the sentence to six months (15 days imprisonment for each month's default).
CORAM : V. K. JADHAV, JJ.
1. By way of this writ petition, the petitioner is challenging the judgment and order of conviction and sentence dated 25.9.2017 passed by the learned Judicial Magistrate First Class (Court No.2), Shirpur in Criminal Misc. Application No. 245 of 2017 and also the judgment and order dated 3.11.2017 passed by the learned Additional Sessions Judge, Dhule in criminal appeal No. 103 of 2017, thereby confirming the period of sentence, as awarded by the learned Magistrate.
a) Respondent No.1 is the wife of petitioner. Their marriage was solemnized on 07.05.1981 and respondent No.2 is their daughter born out of the wedlock. After marriage, respondent No.1 resided with the petitioner for one and half year at Nashik. During that period, respondent No.1 was subjected to domestic violence. In the year 1983, the petitioner drove respondent No.1 out of house. In the year 1984, the father and brother of respondent No.1 took her to the house of petitioner, however, the petitioner did not allow her to reside with him and asked for divorce. The petitioner had performed second marriage with one Sunita. Respondent No.1 had issued notice on 3.6.1985 to the petitioner for restitution of conjugal rights. However, the petitioner did not respond to the said notice. The respondent No.1 therefore, had filed criminal misc. application No. 160 of 1985 for grant of maintenance. The said application was allowed. The appeal preferred against the order of Magistrate thereby granting maintenance, before the learned Sessions Judge was also dismissed. So as to avoid payment of maintenance, the petitioner compromised the dispute in the year 1999. Petitioner admitted to reside with respondent No.1 at Shirpur and to pay her Rs.4000/- per month as maintenance. Respondent No.1 gave birth to respondent No.2 on 4.3.2002.
b) After some period, the petitioner started to ignore respondent nos. 1 and 2. On 12.7.2009, respondent No.1 and her aunt had been to Dhule for shopping. At that time, the petitioner and two others stopped them on the way and petitioner abused respondent No.1 and demanded divorce. The petitioner also threatened respondent No.1. It is with these premises, respondent Nos. 1 and 2 have filed Criminal M.A. No. 343 of 2009 against the the petitioner under the provisions of The Protection of Women from Domestic Violence Act, 2005 (hereinafter for the sake of brevity referred to as “the Act of 2005”).
c) The petitioner appeared in the application and strongly opposed the same by filing say at Exh.9. The petitioner has denied all the allegations made by the respondents. The petitioner has also denied that the respondents were subjected to domestic violence. It was contended by the petitioner that respondent No.1 used to abuse him by saying that her marriage was performed against her wish. Respondent No.1 went to her parents house at her own and did not return and on the contrary, obtained ex-parte maintenance order. The petitioner has also denied paternity of respondent No.2 as he has no concern with her.
d) The learned J.M.F.C. (Court No.3), Dhule, after hearing the parties and framing necessary points for consideration, by judgment and order dated 14.8.2015 granted amount of Rs.5000/- per month to respondent Nos. 1 and 2 for the purpose of paying rent towards residence. The learned J.M.F.C. further granted monthly maintenance of Rs.3000/- to the respondent No. 1 and Rs.1000/- per month to respondent No. 2. It was also directed to the petitioner to pay an amount of Rs.50,000/- each to respondent Nos. 1 and 2 within three months from the date of the order.
e) Since the petitioner was in arrears of maintenance amount, the respondent Nos.1 and 2 herein filed Cri. M.A. No. 245 of 2017 for grant of arrears of maintenance amount of Rs.1,71,000/-. It was also prayed that the petitioner be directed not to commit domestic violence against respondent Nos. 1 and 2 and punish him in view of Section 32 of the Act of 2005.
f) The learned Magistrate, after hearing, by order dated 25.9.2017 allowed the Criminal M.A No. 245 of 2017 and the petitioner was sentenced to suffer S.I. for one year as per Section 125(3) of Cr.P.C. It was directed that he shall be released forthwith if he paid Rs.1,71,000/- to the concerned jail authorities or deposit such amount in the court.
g) Being aggrieved by the order dated 25.09.2017 passed by the learned J.M.F.C. Shirpur, in Criminal M.A. No. 245 of 2017, the petitioner preferred criminal appeal No. 103 of 2017 in the Sessions Court at Dhule. The learned Additional Sessions Judge, Dhule by the judgment and order dated 3.11.2017, partly allowed the appeal. The order dated 25.9.2017 passed by the learned Magistrate is modified in terms that the petitioner shall suffer S.I. for a term of 12 months covering the period from 25.4.2016 to 24.4.2017 or until payment of Rs.1,08,000/- if sooner made. The order of imprisonment continues from 25.9.2017. Hence, this writ petition.
3. Learned counsel for the petitioner submits that the Magistrate has committed an error in sentencing the petitioner for 12 months of imprisonment by invoking the power under Section 125 (3) of Cr.P.C. and has also erred in reading and applying the said provisions to the present case. The order passed by the learned Magistrate is without jurisdiction. The learned Magistrate has not considered the ratio laid down by the Supreme Court in the case of Shahada Khatoon and others vs. Amjad Ali and others, reported in (1999) 5 SCC 672. Learned counsel submits that the learned Sessions Judge has partly accepted the contention of the petitioner that the amount of arrears of past one year are only recoverable, however, failed to further appreciate the contention of the petitioner that he ought not to have been sentenced to one year imprisonment. Thus, the continuation of the petitioner in custody will amount to illegal detention, since the sentence imposed upon him is in excess of the period provided by law. The learned Additional Sessions Judge, instead of remanding the matter for fresh consideration to the learned Magistrate, has committed an error in deciding the matter and thereby the petitioner has lost the chance to agitate the point of sentence before the trial court. The petitioner is in custody for more than one month. The maximum sentence would be imposed for one month and since the same is already over, he is required to be released forthwith. Thus, now the detention of the petitioner will violate his right to life since he cannot be detained for more than one month. Learned counsel for the petitioner thus submits that the petition may be allowed.
iii) Shahada Khatoon and others vs. Amjad Ali and others, reported in (1999) 5 SCC 672.
iv) Judgment of this court (Nagpur Bench) dated 04.09.2017 in Criminal writ petition No. 264 of 2015 (Mohd. Aarif Pathan s/o Ibraham Pathan vs. State of Maharashtra and others.
4. Learned counsel for respondent Nos. 1 and 2 submits that the petitioner has willfully deserted respondent No.1 and he has performed second marriage with one Sunita. In spite of issuance of notice for restitution of conjugal rights, the petitioner has not responded to the said notice. Learned counsel submits that even at one point of time, the petitioner had obstructed respondent No.1 on the way, when she was proceeding alongwith her aunt and insisted for divorce and also threatened her. It is in these premises, the respondents have initiated proceedings for grant of maintenance etc. as respondent No.1 wife was subjected to domestic violence. The learned Magistrate, after hearing the parties and taking into consideration the facts of the case, has awarded maintenance amount to respondent Nos. 1 and 2. Learned counsel thus submits that the Magistrate has power to direct imprisonment to the extent of one month for each month's default. Furthermore, since application for recovery of maintenance could be filed before expiry of 12 months from the date on which it falls due, the outer limit for sentence would be of 12 months maximum. Thus, the ratio is that the court can award 12 months imprisonment in default of 12 months arrears. In other words, 12 monthly defaults can be clubbed together and imprisonment for 12 months is the outer limit. The learned Additional Sessions Judge has rightly confirmed the said order passed by the Magistrate to that extent and there is no error committed by the appellate court. Learned counsel for respondent nos. 1 and 2 thus submits that the petition may be dismissed.
i) Judgment dated 30.9.2008 passed by the High Court of Gujarat at Ahmedabad in Criminal Reference No. 2 of 2008 [Suo motu- Applicant(s) vs State of Gujarat- Respondent(s)].
ii) Order of this Court (Coram: Smt. Roshan Dalvi, J.) dated 13.01.2010 in Criminal Revision Application No. 616 of 2009 in the case of Manoj Markas Thorat vs. The State of Maharashtra and Anr.
iii) Gorakshnath Khandu Bagal vs. State of Maharashtra and others, reported in 2005 Cri.L.J. 3158.
5. I have also heard the learned A.P.P. for respondent No.3-State.
(3) If any person so ordered fails without sufficient cause to comply with the order, any such magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole or any part of each month's (allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be,) remaining unpaid after the execution of the warrant, to imprisonment for a term which may extent to one month or until payment if sooner made; Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the Court to levy such amount within a period of one year from the date on which it became due: Provided further that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing.
7. In the case of Shahada Khatoon (supra), a short question that arose for consideration was whether the learned Single Judge of the Patna High Court correctly interpreted sub-section (3) of Section 125 of Cr.P.C. by directing that the Magistrate can only sentence for a period of one month or until payment, if sooner made. Learned counsel for the appellants in the above case contended that the liability of the husband arising out of an order passed under Section 125 of Cr.P.C. to make payment of maintenance is a continuing one and on account of non-payment there has been a breach of the order and therefore the Magistrate would be entitled to impose sentence on such a person continuing him in custody until payment is made. The Apex Court has not accepted the contention of the learned counsel for the appellants therein and held that the language of sub-section (3) of section 125 is quite clear and it circumscribes the power of the Magistrate to impose imprisonment for a term which may extend to one month or until the payment, if sooner made. The Supreme court also observed that this power of the Magistrate cannot be enlarged and therefore, the only remedy would be after expiry of one month, for breach of non-compliance of the order of the Magistrate, the wife can approach again to the Magistrate for similar relief and by no stretch of imagination the Magistrate can be permitted to impose sentence of more one month. Learned counsel for the petitioner, in the light of the aforesaid ratio laid by the Supreme court in the case of Shahada Khatoon (supra) has submitted that the Magistrate is not empowered to impose sentence for more than one month and as such, the order passed by the Magistrate and confirmed by the learned Additional Sessions Judge with certain modification is required to be quashed and set aside. It appears that the learned counsel for the petitioner has misinterpreted the provisions of section 125(3) of Cr.P.C. and also not correctly understood the ratio laid down by the Supreme court in the case of Shahada Khatoon (supra).
8. In the case of Poongodi and another vs. Thangavel (supra), the issue before the Supreme Court was altogether different. In the said case the High Court has held that the proviso to section 125(3) of Cr.P.C. is a fetter on the entitlement of the claimants to receive arrears of maintenance beyond period of one year preceding the date of filing of the application under Section 125(3) of Cr.P.C. The Supreme Court having considered the said provision of the Code, observed that the same does not create a bar or in any way affects the entitlement of a claimant to arrears of maintenance. Even in para 6 of the judgment, the Supreme Court by giving reference to the case of Shahada Khatoon (supra), observed that the successive applications under Section 125(3) of Cr.P.C. highlighting the subsequent defaults in payment of maintenance was acknowledged by the Supreme Court it the case of Shahada Khatoon. The Supreme Court thus held that the first proviso to Section 125(3) therefore, does not extinguish or limit the entitlement of the appellants to arrears of maintenance granted by the learned trial court, as has been held by the High Court. The Supreme court has accordingly interfered with the order passed by the High Court. The Supreme court has made the observations as above, in the different context and it has hardly any application to the facts and circumstances of the present case and also the issue raised. However, on the other hand, the observations of the Supreme Court by referring the case of Shahada Khatoon (supra) supports the contention raised by the respondent-wife herein.
“21 For the reasons already stated, we find that the Supreme Court in Shahada Khatoon's case did not lay down the ratio that regardless of the extent of default on the part of the husband in paying maintenance, the Magistrate can impose imprisonment of maximum of one month. We are in respectful disagreement with the view expressed by some of the High Courts to the contrary.
In Special Criminal Application No. 897 of 2008, we may notice that for the unpaid maintenance for the period from 7.6.02 to 6.8.05, application under section 125(3) of the Criminal Procedure Code was made on 1.7.06. We may, however, leave the factual aspects to the learned single Judge to work out and confine ourselves to answering the reference made to the Larger Bench.
11. Even the Division Bench of this court in the case of Gorakshnath Khandu Bagal vs. State of Maharashtra and others, (supra) relied upon by learned counsel for the respondents, while dealing with the similar issue, in para 7 and 9 has also taken a similar view as taken by the Full Bench of Gujarat High Court.
12. So far as the judgment of this Court (Nagpur Bench) in the case of Mohd. Aarif Pathan s/o Ibrahim Pathan vs. State of Maharashtra and others (supra), relied upon by learned counsel for the petitioner is concerned, the ratio laid down by the Division Bench of this court in the case of Gorakshnath Khandu Bagal vs. State of Maharashtra and others, (supra) was not brought to the notice of learned Single Judge of this court. Thus, the judgment rendered by the learned Single Judge of this Court in the criminal writ petition No. 264 of 2015, as aforesaid, is per incuriam.
13. It is thus clear that the Magistrate, in exercise of the powers under Section 125 of Cr.P.C., is empowered to sentence the defaulting person for a term of one month for each month of default. In other words, it is open for the Magistrate to award the sentence up to maximum one month for each month's default made by the person ordered to pay the maintenance. Thus, the maximum limit of sentence of one month referred to in Sub-section (3) of Section 125 of Cr.P.C. is applicable for each month of default. Even the Magistrate can entertain separate applications or even entertain a common application for several months of default and pass appropriate order. If there are arrears of more than one month, then the imprisonment exceeding the period of one month can be imposed.
I. Criminal writ petition is partly allowed.
II. The impugned judgment and order dated 25.9.2017 passed by the learned Judicial Magistrate, First Class (Court No.2) Shirpur in Criminal Misc. Application No. 245 of 2017, which is confirmed with certain modification by the Additional Sessions Judge, Dhule vide judgment and order dated 3.11.2017 passed in criminal appeal No. 103 of 2017, is hereby modified by reducing the sentence from simple imprisonment for one year to six months' simple imprisonment.
III. Rest of the order as confirmed by the learned Additional Sessions Judge in criminal appeal stands confirmed.
IV. Criminal Writ petition is accordingly disposed of.

matches:
V.
Application No. 245
application No. 160
Application No. 616
Application No. 897
Application No. 245


Asserting jurisdiction under the Tucker Act, which provides for suits in the Court of Claims upon any express or implied contract with military exchanges, respondent's decedent brought suit against the United States alleging that his discharge from his position as a civilian employee of the Army and Air Force Exchange Service (AAFES) breached an employment contract. The Government moved to dismiss for lack of jurisdiction, claiming that the Tucker Act was not applicable to employment contracts and alternatively that AAFES employees do not have a contractual relationship with their employer but serve by "appointment." Denying this motion, the Court of Claims, after determining that AAFES employees could never serve by appointment, held that it had jurisdiction because respondent's decedent's relationship with the AAFES was based upon an implied contract of employment and such contract was covered by the Tucker Act, as amended in 1970. Held: Since the Tucker Act applies, by its terms, to "any express or implied contract," it is applicable to employment contracts as well as those for goods or other services, and hence respondent's decedent's allegations that his discharge constituted a breach of an employment contract was sufficient, under the Act as amended in 1970, to withstand the Government's motion to dismiss. But in determining whether the decedent was employed by virtue of a contract or by appointment, the Court of Claims gave insufficient attention to applicable administrative regulations relating to the status of AAFES employees, and thus erred in its threshold determination that such employees could never serve by appointment.
206 Ct. Cl. 303, 513 F.2d 1360, affirmed in part and vacated and remanded in part.
Robert B. Reich argued the cause pro hac vice for the United States. With him on the briefs were Solicitor [427 U.S. 123, 124] General Bork, Assistant Attorney General Lee, and Ronald R. Glancz.
Thomas H. McGrail argued the cause and filed a brief for respondent.
This case involves a suit by respondent's decedent, 1 a civilian employee of the Army and Air Force Exchange Service (AAFES), claiming wrongful discharge from his employment. He asserted jurisdiction under the Tucker Act, 28 U.S.C. 1491, which provides for suits in the Court of Claims upon any express or implied contract with such military exchanges. The Government moved to dismiss for lack of jurisdiction. The Court of Claims concluded that it had jurisdiction because respondent's decedent's relationship with the AAFES was based upon an implied contract of employment and such a contract is covered, since 1970, by the Tucker Act. 206 Ct. Cl. 303, 513 F.2d 1360. We granted certiorari to resolve a conflict between this decision and a contrary holding of the United States Court of Appeals for the Fifth Circuit in Young v. United States, 498 F.2d 1211 (1974). 423 U.S. 821 .
The latter observation was the basis of a series of decisions by the Court of Claims to the effect that it lacked jurisdiction over claims concerning the activities of non-appropriated fund instrumentalities. 2 That court held that it could not entertain suits based on a contract for services with such an entity, because, since the Government had assumed no liability for the entity's financial obligations it could not be said to have consented to a suit designed to vindicate such obligations. Therefore, no "claim against the United States" existed under the Tucker Act which is the source of Court of Claims jurisdiction, Borden v. United States, 126 Ct. Cl. 902, 116 F. Supp. 873 (1953); Pulaski Cab Co. v. United States, 141 Ct. Cl. 160, 157 F. Supp. 955 (1958); Kyer v. United States, 177 Ct. Cl. 747, 369 F.2d 714 (1966), cert. denied, 387 U.S. 929 (1967).
The Court of Claims, while denying jurisdiction, recognized the harsh consequences of this result since it could leave claimants against the exchanges with no forum in which to seek relief. However, the court recognized that "it is up to Congress to remedy this apparent harsh result . . . . [T]he courts should refrain from legislating by judicial fiat." Keetz v. United States, 168 Ct. Cl. 205, 207 (1964).
The purpose of this amendment, as the reports of both Houses made clear, was to afford contractors a federal forum in which to sue nonappropriated fund instrumentalities by doing away with the inequitable "loophole" in the Tucker Act. S. Rep. No. 91-268, p. 2 (1969); H. R. Rep. No. 91-933, p. 2 (1970). Borden, supra; Pulaski, supra; Keetz, supra; and Kyer, supra, were cited as examples of the "harsh result" which the amendment would correct. The purpose of the bill was clearly to provide a remedy to "contractors" with non-appropriated fund instrumentalities, e. g., S. Rep. No. 91-268, pp. 4-5, and there is nothing in the legislative history to indicate, as the Government contends, that "contractors" did not include anyone who had formed a contractual employment relationship. Since the statute applies, by its terms, to "any express or implied contract" we hold that it is applicable to employment contracts as well as those for goods or other services. The fact that Congress has dealt specifically with exchange employees when it wanted to bring them within or leave them without the provisions of a law dealing with federal employees generally (e. g., 5 U.S.C. 8171 (b)) is not of controlling weight here. This statute deals with those who have a contractual relationship with military exchanges rather than with different classes of federal employees. If employees of military exchanges are within its general language, they are not removed from its effect by congressional practices in enacting other kinds of statutes.
The Government alternatively contends that AAFES employees do not have a contractual relationship with their employer, and that like orthodox federal employees they serve by "appointment" to a particular position. While there is some ambiguity in the opinion of the Court of Claims, that court apparently agreed that plaintiff [427 U.S. 123, 127] and others like him did have a contractual employment relationship with the AAFES. We think it would be both unnecessary and unwise for us to decide the question at this stage of the case, and we think that the Court of Claims gave insufficient attention to applicable administrative regulations when it undertook to decide the question.
The exchange services are created and administered pursuant to the general authority granted the Secretary of the Army and the Secretary of the Air Force by 10 U.S.C. 3012 and 8012. The nonappropriated-fund status of the exchanges places them in a position whereby the Federal Government, absent special legislation, does not assume the obligations of those exchanges in the manner that contracts entered into by appropriated fund agencies are assumed. Standard Oil Co. v. Johnson, 316 U.S., at 485 . The nonappropriated-fund status of the exchanges, however, does not alter the fact that the Secretaries of the Army and the Air Force may engage employees by "appointment," in the same manner as other personnel hired by the Secretaries may be employed. See Standard Oil Co. v. Johnson, supra; Crenshaw v. United States, 134 U.S. 99 (1890); Butler v. Pennsylvania, 10 How. 402 (1851).
The regulations governing the AAFES, state that ordinary employees are deemed employees of an instrumentality of the United States, and hold their positions by appointment. AR 60-21/AFR 147-15, c. 1, I, § 1-7; c. 2, I (Nov. 12, 1974). 3 There is congressional recognition [427 U.S. 123, 128] of the power of the Secretaries to employ exchange employees by appointment. The House and Senate Reports on Pub. L. 91-350 explicitly recognized that employees of nonappropriated-fund activities, when performing their official duties, are employees of the United States. S. Rep. No. 91-268, supra, at 2; H. R. Rep. No. 91-933, supra, at 2. Further, Congress has specifically granted exchange employees certain rights afforded only appointed employees, and, more important, has specifically excluded them from the coverage of certain statutes granting rights to appointed federal employees. See statutes cited in AR 60-21/AFR 147-15, c. 1, I, § 1-8. Of particular import is their exclusion, through the operation of 5 U.S.C. 2105 (c), from the provisions of the Back Pay Act, 5 U.S.C. 5596. The Back Pay Act is the means by which appointed employees subjected to unjustified personnel action are given a cause of action against the United States. The Act is made necessary by the fact that, absent specific command of statute or authorized regulation, an appointed employee subjected to unwarranted personnel action does not have a cause of action against the United States. Keim v. United States, 177 U.S. 290, 293 -296 (1900); Sampson v. Murray, 415 U.S. 61, 69 -70 (1974); United States v. Testan, 424 U.S. 392, 405 -407 (1976). Since the Act deals only with appointees, the specific exclusion of AAFES employees from the coverage of the Act would seem to indicate a congressional recognition that they may be appointed, but that appointed AAFES employees should not be allowed to sue under the Act.
This is not to say that an exchange may never employ a person pursuant to a contract of employment. The Secretaries have provided, by separate regulation, for a process under which a person may be employed by contract. AR 60-20/AFR 147-14, c. 4, II and III [427 U.S. 123, 129] (Mar. 21, 1974). Such employment is subject to different procedures for negotiation, approval, and administrative remedies from those applicable to employment under AR 60-21/AFR 147-15. The regulation governing contracts defines "service contract" as including contracts both for services performed off a military installation and "direct services such as janitorial and window cleaning service." AR 60-20/AFR 147-14, App. A, § A-6e. Under the regulation in effect at the time of plaintiff's discharge, it was specifically provided that exchanges "will not enter into [a service contract] with military personnel on active duty, civil service employees, or exchange employees." AR 60-20/AFR 147-14, XIX, § 88b (Apr. 14, 1965) (emphasis added). The regulation thus clearly distinguished between employment pursuant to appointment and employment pursuant to contract, a distinction that existed prior to plaintiff's hiring and continues today in the use of separate regulations for "contracting" and "appointment."
When Congress enacted Pub. L. 91-350, making contracts entered into by the post exchanges cognizable in the Court of Claims, it did not change in any way the other provisions of the United States Code dealing with exchange employees, nor did it purport to require that the exchanges employ all persons pursuant to contract.
The Court of Claims, in reaching its conclusion that plaintiff held his position by virtue of an express or implied contract assumed that once it was determined he was not an appointed federal employee this result followed as a matter of course. It concluded that in such event his employment status was governed by a series of cases from the private sector of the economy holding that the typical employee-employer relationship was contractual in nature. While we do not question the relevance of these cases by way of analogy should plaintiff [427 U.S. 123, 130] be determined not to have been an appointee we hold that the Court of Claims erred in its threshold determination that AAFES employees could never serve by appointment. Rather, the question depends upon an analysis of the statutes and regulations previously described in light of whatever evidence is adduced on remand as to plaintiff's particular status in this case.
It is thus apparent that the question of whether plaintiff was employed by virtue of a contract or by appointment is not susceptible of determination at this time. Rather, the issue is one which must receive additional consideration from the Court of Claims after development of a fuller record.
Respondent in her brief in this Court advanced a second theory upon which the jurisdiction of the Court of Claims in this case could be sustained. She urged that plaintiff's discharge in violation of executive regulations constituted a claim enforceable under the Tucker Act, and that his discharge without due process constituted a claim founded on the Constitution and therefore enforceable under the Tucker Act. Brief for Respondent 51. At oral argument, counsel conceded that our decision in United States v. Testan, supra, which had been handed down between the time of the filing of his brief and the oral argument, foreclosed such a claim.
Plaintiff's allegation that his discharge constituted a breach of a contract of employment was sufficient, under the provisions of Pub. L. 91-350, to withstand the Government's motion to dismiss the complaint on the grounds of lack of jurisdiction in the Court of Claims, and the judgment of the court so holding is therefore affirmed. That portion of its judgment deciding that plaintiff held his employment position by virtue of an express or implied contract, rather than by appointment, [427 U.S. 123, 131] is vacated and the cause remanded for further proceedings on that question.
MR. JUSTICE POWELL dissents from the opinion of the Court substantially for the reasons stated by Judge Skelton in his dissenting opinion in the Court of Claims. 206 Ct. Cl. 303, 314, 513 F.2d 1360, 1366 (1975).
[ Footnote 1 ] The named respondent is the window of the original plaintiff.
[ Footnote 2 ] A "nonappropriated fund instrumentality" is one which does not receive its monies by congressional appropriation. See 10 U.S.C. 4779 (c), 9779 (c).


TLJ Daily E-Mail Alert No. 2,020, December 3, 2009.
December 3, 2009, Alert No. 2,020.
12/3. Comcast and General Electric (GE) announced in a release that they "have signed a definitive agreement to form a joint venture that will be 51 percent owned by Comcast, 49 percent owned by GE and managed by Comcast."
The release adds that "The joint venture, which will consist of the NBC Universal (NBCU) businesses and Comcast's cable networks, regional sports networks and certain digital properties and certain unconsolidated investments, will be well positioned to compete in an increasingly dynamic and competitive media and digital environment."
Comcast and GE did not release text of the agreement. However, they disclosed in their release that "GE will contribute to the joint venture NBCU's businesses valued at $30 billion, including its cable networks, filmed entertainment, televised entertainment, theme parks, and unconsolidated investments, subject to $9.1 billion in debt to third party lenders. Comcast will contribute its cable networks including E!, Versus and the Golf Channel, its ten regional sports networks, and certain digital media properties, collectively valued at $7.25 billion, and make a payment to GE of approximately $6.5 billion of cash subject to certain adjustments based on various events between signing and closing."
"NBCU, valued at $30 billion, will be contributed to the newly formed joint venture. Comcast will contribute its programming businesses and certain other properties valued at $7.25 billion." They added that "NBCU will borrow approximately $9.1 billion from third-party lenders and distribute the cash to GE.
The release also announced "the creation of Comcast Entertainment Group (CEG), which will house Comcast's interest in the joint venture and will stand alongside Comcast Cable, which operates the company’s traditional cable business."
The two companies also stated in their release that "It is subject to receipt of various regulatory approvals, including clearance under the Hart-Scott-Rodino Antitrust Improvements Act, and approvals of the Federal Communications Commission and certain international agencies."
Comcast also released a memorandum to makes numerous commitments to federal regulators, especially the Federal Communications Commission (FCC), regarding planned activities and operations, and to further efforts to secure timely regulatory approvals. See, related story in this issue titled "Comcast Offers Commitments to Regulators Regarding GE Joint Venture". See also, story in this issue titled "Reaction to Proposed Comcast GE Transaction".
12/3. Comcast released a memorandum [5 pages in PDF] in connection with its proposed joint venture with General Electric that states that "In connection with our applications to federal regulators for approval of this venture, we intend to make a number of affirmative commitments for how we will use these assets to better meet the entertainment, communications, and information needs of the American public."
Comcast enumerated in this memorandum its planned commitments regarding (1) free over the air television, (2) localism, (3) public, educational, and governmental (PEG) channels, (4) independence in NBC journalism, (5) children's programming, (6) diversity, (7) free on demand programming, (8) FCC program access rules, (9) non-affiliated video programmers, and (10) labor contracts.
First, this memorandum states that "the combined company remains committed to continuing to provide free over-the-air television through its O&O stations and through local broadcast affiliates across the nation." O&O is owned and operated.
Second, regarding localism, Comcast wrote that "We intend to preserve and enrich the output of local news, local public affairs, and other public interest programming on NBC O&O stations. Through the use of Comcast's On Demand and On Demand Online platforms, time slots on cable channels, and use of certain windows on the O&O schedules, we believe we can expand the availability of all types of local and public interest programming."
Fourth, "Since NBCU was acquired by GE in 1986, the owners have abided by a policy (summarized in a filing with the FCC) of ensuring that the content of NBC's news and public affairs programming would not be influenced by the non-media interests of General Electric. ... The combined company will continue these policies with respect to the news programming organizations of all NBCU networks and stations, and will extend these policies to the potential influence of each of the owners". (Parentheses in original.) NBCU is NBC Universal.
Fifth, "We will use Comcast's On Demand and On Demand Online platforms and a portion of the NBC O&Os' digital broadcast spectrum to speak to kids." Also, the combined company will incorporate Common Sense Media (CSM) ratings into "its emerging On Demand and On Demand Online platforms and other advanced platforms".
Seventh, "We commit that at least 75 percent of our On Demand programming library will be available to subscribers at no extra charge for the three-year period after closing."
Eighth, "We commit to voluntarily extend the key components of the FCC's program access rules to negotiations with MVPDs for retransmission rights to the signals of NBC and Telemundo O&O stations", and "We commit to voluntarily accept the application of program access rules to the high-definition (HD) feeds of any network whose standard definition (SD) feed is subject to the program access rules", both for "as long as the FCC's current program access rules remain in place".
Tenth, "We plan to honor all of NBCU's collective bargaining agreements".
12/3. Representatives of Washington DC based advocacy groups and think tanks promptly commented on the announcement by Comcast and General Electric that they intend to form a joint venture regarding NBC Universal.
Ken Ferree of the Progress & Freedom Foundation (PFF), and a former FCC Bureau Chief, predicted in a release that "various advocacy groups will hoot and holler that Comcast's stake in NBC Universal is another sign that the sky is falling".
The Free Press (FP) and Consumer Federation of America (CFA) issued a release [4 pages in PDF] titled "Why the Comcast/NBC Merger Poses a Major Threat to Video Competition that Antitrust Authorities Cannot Ignore". It states that "this merger raises the most basic antitrust issues".
The FP/CFA release argues that "A vertically integrated Comcast/NBC would not only control marquee television and movie content, it would also control the primary avenues for distributing that content: a major television broadcast network, a major cable system operator and a major broadband Internet access provider. Because the merged entity would control both content and distribution, it would have both the incentive and the market power to limit the access of competing content to the distribution platforms it controls. It would also have the power to enforce anticompetitive bundling and pricing of its own programming, or in some cases, to deny its competitors access to its programming altogether."
The FP/CFA also addressed the likely impact upon the "online video realm". They wrote that "Antitrust authorities should be concerned that a merged company would have a powerful motive to starve competing online video sources by denying them access to valuable content."
Also, "Comcast/NBC would attempt to protect lucrative cable subscription profits by moving Comcast/NBC online video content behind a pay wall tied to Comcast cable subscriptions."
Gigi Sohn, head of the Public Knowledge, also complained. She stated in one release that this transaction "raises substantial and complex competition issues across multiple types of media".
She also argued that this transaction "makes a Net Neutrality rule that much more necessary".
She also wrote that Comcast plans to "go ahead with their TV Everywhere plan to make cable-based programming available online only to cable customers behind a pay wall. That plan is unacceptable and incompatible with the spirit of making programming widely available to competitors as Comcast claims it wants to do."
11/27. The American Antitrust Institute (AAI) release a paper [13 pages in PDF] titled "Refusals to License and Installed-Base Opportunism in the Mainframe Computer Industry: The Investigation of IBM". The author is Andrew Chin, a professor at the University of North Carolina law school.
He wrote that "In interpreting the anti-monopolization provisions (Section 2) of the Sherman Act, the courts have been less clear about the potential for liability arising from the refusal to license a patented product. A monopolist can sometimes harm competition by refusing patent licenses to would-be customers who do business with the monopolist’s competitors. Nevertheless, some courts have gone so far as to suggest that such refusals are always legal, except where there is a separate basis for legal liability." This section is codified at 15 U.S.C. § 2.
He continued that while the Department of Justice (DOJ) previously allowed "unilateral, unconditional refusals to deal, including refusals to license intellectual property, without facing meaningful antitrust scrutiny", the recent appointment of Christine Varney to head the DOJ's Antitrust Division signaled a change.
He also wrote that "The Antitrust Division's recently reported opening of an investigation into IBM’s conduct in the mainframe computer industry appears to confirm this shift in Section 2 enforcement, and raises the possibility that the agency will seek clarification from the courts as to whether and when the restrictive licensing of patented technology can give rise to monopolization liability."
12/2. The House Judiciary Committee (HJC) scheduled, but held over, the mark up HR 3190 [LOC | WW], the "Discount Pricing Consumer Protection Act of 2009". See, notice. The HJC has not yet scheduled its next mark up for this bill.
This bill would undo the Supreme Court's June 28, 2007 opinion [55 pages in PDF] in Leegin Creative Leather Products v. PSKS. This bill could impact what marketing practices are permissible for makers of complicated consumer electronics devices. It would ban vertical agreements between makers and distributors that set minimum resale prices.
The bill has three sponsors. Rep. Hank Johnson (D-GA) (at left) and Rep. John Conyers (D-MI) introduced this bill on July 13, 2009. Rep. Rick Boucher (D-VA) later joined as a cosponsor.
The relevant statute, Section 1 of the Sherman Act, which is codified at 15 U.S.C. § 1, provides little guidance. It merely states that "Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal." Section 1 also contains a criminal prohibition. The rest of the law exists in judicial interpretation and agency enforcement decisions.
Resale price maintenance (RPM) exists when a manufacturer agrees with its distributor(s) to set the minimum price that the distributor(s) can charge for the manufacturer's goods. Prior to the Leegin opinion, RPM was subject to the antitrust per se rule. That is, RPM was automatically illegal, even if it could be demonstrated to have no anticompetitive effect. The case on point was Supreme Court's 1911 opinion in Dr. Miles Medical Co. v. John D. Park & Sons Co., which is reported at 220 U.S. 373.
Leegin. The 2007 Leegin opinion overturned Dr. Miles. However, the Supreme Court did not hold that RPM is never a violation of Section 1 of the Sherman Act. Rather, it held that vertical RPM agreements are subject to the rule of reason standard.
See, story titled "Supreme Court Grants Certiorari in Antitrust Cases" in TLJ Daily E-Mail Alert No. 1,501, December 8, 2007, and story titled "SCUS Holds That All Vertical Price Restraints Are Subject to Rule of Reason" in TLJ Daily E-Mail Alert No. 1,603, June 28, 2007.
The rule of reason standard originated with the 1911 opinion in Standard Oil v. U.S., 221 U.S. 1. The Supreme Court wrote in Leegin that under the rule of reason standard, "the factfinder weighs all of the circumstances of a case in deciding whether a restrictive practice should be prohibited as imposing an unreasonable restraint on competition."
Relevant factors include information about the relevant business, the restraint's history, nature, and effect, and whether the businesses involved have market power. The Supreme Court wrote in Leegin that the rule of reason is designed to distinguish between restraints "with anticompetitive effect that are harmful to the consumer and restraints stimulating competition that are in the consumer’s best interest".
The Supreme Court continued that the "economics literature is replete with procompetitive justifications for a manufacturer's use of resale price maintenance."
It also wrote that "A single manufacturer's use of vertical price restraints tends to eliminate intrabrand price competition; this in turn encourages retailers to invest in tangible or intangible services or promotional efforts that aid the manufacturer's position as against rival manufacturers. Resale price maintenance also has the potential to give consumers more options so that they can choose among low-price, low-service brands; high-price, high-service brands; and brands that fall in between."
Moreover, it also wrote that RPM "can increase interbrand competition by facilitating market entry for new firms and brands."
And finally, it also wrote that "Absent vertical price restraints, the retail services that enhance interbrand competition might be underprovided. This is because discounting retailers can free ride on retailers who furnish services and then capture some of the increased demand those services generate."
Free Riders in Marketing of Tech Devices. This free rider problem is especially applicable to complex consumer electronics products. Many consumers do not know what the products' features are, or how to use the products.
In order to promote adoption of new technologies, and sales of their products, manufacturers have an interest in distributors' disseminating information about the new devices through advertising, in store demonstrations, training of employees, and customer support. But, these services impose costs on the distributors who provide them.
This can create a free riding situation, when some distributors go to the trouble to provide such information and support, but others do not. The presence of free riders, offering the products at lower prices, disincents other distributors from educating consumers. This, in turn, disincents manufacturers from offering complex devices that require consumer education.
And this inhibits innovation in the IT sector.
At least, this is the argument found in economics literature, as well as in the Department of Justice's (DOJ) Office of the Solicitor General's (OSG) amicus curiae brief in Leegin, and another amicus curiae brief filed by a group of 23 economists.
Most significantly, this argument was accepted by the Supreme Court. It wrote that "Consumers might learn, for example, about the benefits of a manufacturer's product from a retailer that invests in fine showrooms, offers product demonstrations, or hires and trains knowledgeable employees." But, "the high-service retailer will lose sales to the discounter, forcing it to cut back its services to a lower level than consumers would otherwise prefer".
April 28 Hearing. The HJC's Subcommittee on Courts and Competition Policy held a hearing on April 28, 2009, titled "Bye Bye Bargains? Retail Price Fixing, the Leegin Decision, and Its Impact on Consumer Prices". The panel was stacked three to one with witnesses against the Leegin opinion.
Todd Cohen, head of eBay's government relations, wrote in his prepared testimony [PDF] that the Leegin opinion "is beginning to undermine many of the consumer benefits delivered by innovators using the openness of the Internet".
He continued that in 2007 "commentators predicted that the decision would lead to an increase in RPM programs and related practices that restrict intrabrand price competition. Anecdotal reports and other information corroborate that this has indeed been the result. These reports further identify Internet retailers as a particular target of the increasing use of RPM." He added that "eBay's own experiences confirm this to be true".
Cohen also argued that "the largest and most established retailers are free-riding on the tremendous consumer information tools created by Internet innovators". For example, "Internet retailers provide significant pre-sale information to their customers", and "consumers are increasingly turning to the Internet to search for product information, make product comparisons and check prices before visiting and purchasing from traditional brick and mortar stores – raising the question of who is actually the free-rider".
See also, Cohen's prepared testimony of May 19, 2009, for the Senate Judiciary Committee.
Federal Trade Commission (FTC) Commissioner Pamela Harbour criticized the Supreme Court's opinion in her prepared testimony. Richard Brunell, testifying on behalf of the American Antitrust Institute (AAI), also criticized the Leegin opinion in his prepared testimony.
Thomas Hungar, of the Washington DC office of the law firm of Gibson Dunn & Crutcher (GDC), praised the Leegin opinion in his prepared testimony [29 pages in PDF]. Hungar was a Deputy Solicitor General in the DOJ's OSG at the time that the DOJ filed its amicus curiae brief in the Leegin case. His name is on the brief. The Supreme Court adopted the conclusion advocated in that brief.
Hungar wrote that "Manufacturers are not in the business of increasing retailer profits, and have no interest in doing so; a manufacturer’s interest is instead to incentivize its retailers to market its product in the most effective way, thereby maximizing inter-brand competition and increasing the manufacturer's sales. Accordingly, when we see a manufacturer using vertical agreements to influence its retailers through any of these techniques, the most plausible explanation is that the manufacturer is using the technique to compete with other brands and gain market share, not to enrich its retailers."
Senate Bill. There is a similar bill pending in the Senate, S 148 [LOC | WW], also titled the "Discount Pricing Consumer Protection Act". Sen. Herb Kohl (D-WI) introduced it on January 6, 2009.
It would amend Section 1 of the Sherman Act to provide that "Any contract, combination, conspiracy or agreement setting a minimum price below which a product or service cannot be sold by a retailer, wholesaler, or distributor shall violate this Act." There are now eight cosponsors. All are Democrats.
The Senate Judiciary Committee (SJC) held a hearing on July 31, 2007, titled "The Leegin Decision: The End of the Consumer Discounts or Good Antitrust Policy". See, SJC web page for this hearing with hyperlinks to prepared testimony and an audio recording. The SJC held another hearing on May 19, 2009, titled "The Discount Pricing Consumer Protection Act: Do We Need to Restore the Ban on Vertical Price Fixing?". See, SJC web page for this hearing.
Varney and Leegin. Christine Varney (at right), President Obama's appointee to run the DOJ's Antitrust Division, has been giving speeches that reflect a desire to undo some of the major recent developments in antitrust law and enforcement policy. Although, to date, she has largely given speeches without implementing action.
Leegin and rule of reason RPM are on her target list. For example, she gave a speech titled "Antitrust Federalism: Enhancing the Federal/State Relationship" in New York City on October 7, 2009. The primary topic of her speech was an attack upon the Supreme Court's Leegin opinion.
Leegin construed a federal antitrust statute. Varney enforces federal antitrust statutes. She is bound by the Supreme Court's opinion. "As for federal law", Varney conceded, "it is clear that Leegin calls for a rule of reason inquiry". But, she continued that states apply state antitrust laws, and are not bound by Leegin. She encouraged state "enforcers to keep an open mind", and serve as a laboratory of RPM litigation.
See also, story titled "Varney Discusses Antitrust, States AGs, RPM and the Rule of Reason" in TLJ Daily E-Mail Alert No. 1,999, October 8, 2009.
12/2. The House passed HR 320 [LOC | WW], the "CJ's Home Protection Act of 2009", on Wednesday, December 2009, by voice vote. This bill would amend 42 U.S.C. § 5403 to provide that "each manufactured home delivered for sale shall be supplied with a weather radio inside the manufactured home that ... is capable of broadcasting emergency information relating to local weather conditions ..." 42 U.S.C. § 5402 provides a definition for the term "Federal manufactured home". See also, story titled "House to Consider Bill Mandating Radios in New Manufactured Houses" in TLJ Daily E-Mail Alert No. 2,017, November 30, 2009.
12/2. The House passed HR 2873 [LOC | WW], the "Enhanced S.E.C. Enforcement Authority Act", on Wednesday, December 2, 2009, by voice vote. This bill would override parts of Rule 45, Federal Rules of Civil Procedure (FRCP), in actions brought under federal securities statutes, by providing that subpoenas issued by one U.S. District Court may be served and enforced anywhere. It would enhance the ability of the SEC to engage in forum shopping. It would also decrease the ability of subpoena recipients, including investigative reporters, to challenge improper or burdensome subpoenas. See also, story titled "House to Consider SEC Subpoena Bill" in TLJ Daily E-Mail Alert No. 2,017, November 30, 2009.
12/2. The Senate Commerce Committee (SCC) held a hearing titled "Transportation Security Challenges Post-9/11". The prepared testimony of Cathleen Berrick of the Government Accountability Office (GAO) touched on cyber security. See, GAO testimony [25 pages in PDF] titled "Homeland Security: DHS's Progress and Challenges in Key Areas of Maritime, Aviation, and Cybersecurity". This report states that "The federal government has developed a strategy to address cyber threats. Specifically, President Bush issued the 2003 National Strategy to Secure Cyberspace and related policy directives, such as Homeland Security Presidential Directive 7, that specify key elements of how the nation is to secure key computer-based systems, including both government systems and those that support critical infrastructures owned and operated by the private sector. The strategy and related policies also establish DHS as the focal point for cyber critical infrastructure protection and assigns DHS multiple leadership roles and responsibilities in this area ... More recently, in February 2009, President Obama directed the National Security Council and Homeland Security Council to conduct a comprehensive review to assess the United States’ cybersecurity-related policies and structures. The resulting May 2009 report made a number of recommendations to improve the nation’s approach." See, 2003 Homeland Security Presidential Directive 7, and 2009 Cyberspace Policy Review: Assuring a Trusted and Resilient Information and Communications Infrastructure [76 pages in PDF].
8:30 AM - 2:00 PM. The Department of Homeland Security's (DHS) Data Privacy and Integrity Advisory Committee will meet. See, notice in the Federal Register, November 16, 2009, Vol. 74, No. 219, at Pages 58966-58967. Location: L'Enfant Plaza East, Suite 3207, 490 L'Enfant Plaza, SW.
8:45 AM - 1:00 PM. The Phoenix Center for Advanced Legal & Economic Public Policy Studies will host an event titled "Telecoms Symposium". The first panel is titled "Economists Panel". The speakers will be Marius Schwartz (Georgetown University), Jonathan Baker (FCC), Robert Willig (Princeton University), and George Ford (Phoenix Center). The second panel is titled "Does Congestion Matter?". The speakers will be Edward Amoroso (AT&T), Jason Livigood (Comcast), and Rob Curtis (FCC). FCC Commissioner Meredith Baker will give a speech. This event is free. See, notice. Location: University Club, 1135 16th St., NW.
9:00 AM - 4:45 PM. The Department of Justice's (DOJ) Antitrust Division and the Federal Trade Commission (FTC) will host the first of five public workshops regarding amending the Horizontal Merger Guidelines (HMG). See, DOJ release, FTC list of questions, and FTC HMG Project web site. See also, stories titled "Antitrust Division and FTC May Amend Horizontal Merger Guidelines" in TLJ Daily E-Mail Alert No. 1987, September 23, 2009, and "DOJ's Shapiro Discusses Upcoming Revisions to Horizontal Merger Guidelines" in TLJ Daily E-Mail Alert No. 2,015, November 16, 2009. Location: FTC Conference Center, 601 New Jersey Ave., NW.
RESCHEDULED FROM OCTOBER 22. 10:00 AM. The House Commerce Committee's (HCC) Subcommittee on Commerce, Trade and Consumer Protection will hold a hearing on 3993, the "Calling Card Consumer Protection Act". See, notice. Location: Room 2322, Rayburn Building.
10:00 AM. The House Judiciary Committee's (HJC) Subcommittee on the Constitution, Civil Rights, and Civil Liberties will hold a hearing on the Department of Justice's (DOJ) Civil Rights Division. (CRD). Tom Perez, the Assistant Attorney General in charge of the CRD, will testify. See, notice. Location: Room 2141, Rayburn Building.
10:00 AM. The Senate Judiciary Committee (SJC) will hold an executive business meeting. The agenda again includes consideration of S 448 [LOC | WW], the "Free Flow of Information Act of 2009". It also includes consideration of the nomination of Thomas Vanaskie to be a Judge of the U.S. Court of Appeals for the 3rd Circuit, and Louis Butler to be a Judge of the U.S. District Court (WDWisc). The SJC rarely follows is published agendas. See, notice. Location: Room 226, Dirksen Building.
10:00 AM. The Senate Banking Committee will hold a hearing on the nomination of Ben Bernanke to be Chairman of the Board of Governors of the Federal Reserve System. See, notice. Location: Room 106, Dirksen Building.
11:00 AM - 1:00 PM. Day two of a two day meeting of the National Science Foundation's (NSF) Advisory Committee for Cyberinfrastructure. See, notice in the Federal Register, November 16, 2009, Vol. 74, No. 219, at Page 59013. Location: 4201 Wilson Blvd., Room 1235, Arlington, VA.
2:00 PM. The Federal Communications Commission's (FCC) Advisory Committee on Diversity for Communications in the Digital Age will hold a meeting. See, notice in the Federal Register, October 30, 2009, Vol. 74, No. 209, at Pages 56196-56197. Location: FCC, Commission Meeting Room (Room TW-C305), 445 12th St., SW.
2:30 PM. The Federal Trade Commission's (FTC) Bureau of Economics will host a presentation by Uri Simonsohn (Wharton). Location: FTC, ground floor Conference Center, 601 New Jersey Ave., NW.
6:00 - 8:30 PM. The Department of State (DOS), Sweden, Ericsson, and the Federal Communications Bar Association (FCBA) will host an event titled "International Innovation and Broadband". The speakers will be Philip Verveer (DOS Coordinator for International Communications & Information Policy) and Jonas Hafström (Sweden's Ambassador to the U.S.). Registrations and cancellations are due by 5:00 PM on November 30. The price to attend ranges from $10 to $25. See, registration form [PDF]. Location: House of Sweden, 2900 K St., NW.
Day two of a two day event hosted by the Armed Forces Communication and Electronics Association (AFCEA) titled "Cyberspace at the Cross Roads: The Intersection of Cyber, National and Economic Security". Michael Brown (DHS) will speak at 9:10 - 10:00 AM. Robert Butler (Deputy Assistant Secretary of Defense for Cyber and Space Policy), Barbara Hoffman (Department of the Navy), and Robert Rego (Air Force Space Command) will participate on a panel at 1:00 - 2:30 PM. See, schedule. Location: National Conference Center, 18980 Upper Belmont Place, Leesburg, VA.
Day three of a three day workshop hosted by the National Institute of Standards and Technology (NIST) on the ISO/IEC 24727 Identification cards, Integrated circuit card programming interfaces. This is a multi-part standard for interoperable identification, authentication, and signature services for credentials and applications. See, notice in the Federal Register, November 6, 2009, Vol. 74, No. 214, at Pages 57451-57452. Location: National Transportation Safety Board (NTSB) Board Room/Conference Center, 429 L'Enfant Plaza, SW.
Implementation date of the Census Bureau's (CB) "interim final rule" amending the Foreign Trade Regulations (FTR) to eliminate the requirement to report a social security number (SSN) as an identification number when registering to file and filing electronic export information in the Automated Export System (AES) or AESDirect. See, notice in the Federal Register, August 5, 2009, Vol. 74, No. 149, at Pages 38914-38916.
9:00 AM - 4:00 PM. The Federal Communications Commission's (FCC) Consumer Advisory Committee (CAC) will meet. The agenda includes discussions of captioned telephony, digital closed captioning and video description, CG Docket No. 09-158 (regulation of billing information), web media design, and the FCC's Electronic Comment Filing System (ECFS). See, FCC notice and notice in the Federal Register, November 19, 2009, Vol. 74, No. 222, at Pages 59977-59978. Location: FCC, Commission Meeting Room, 445 12th St., SW.
3:00 - 4:00 PM. The Department of Homeland Security's (DHS) Homeland Security Advisory Council (HSAC) will meet by teleconference. See, notice in the Federal Register, November 10, 2009, Vol. 74, No. 216, at Page 58036.
Deadline to submit reply comments to the Copyright Office and the U.S. Patent and Trademark Office ((USPTO) in response to the Notice of Inquiry (NOI) regarding the draft treaty [PDF] proposed to the World Intellectual Property Organization's (WIPO) Standing Committee on Copyright and Related Rights (SCCR) by Brazil, Ecuador, and Paraguay. See, notice in the Federal Register, October 13, 2009, Vol. 74, No. 196, at Pages 52507-52509, and story titled "Copyright Office and USPTO Issue NOI Regarding Treaty Based Exemption to Anti-Circumvention Provisions" in TLJ Daily E-Mail Alert No. 2,003, October 15, 2009.
Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Public Notice (PN) [4 pages in PDF] that requests comments to refresh its record regarding wireless location tracking accuracy and reliability. See, notice in the Federal Register, November 18, 2009, Vol. 74, No. 221, at Pages 59539-59540. This PN was released on November 6, 2009. It is DA 09-2397 in PS Docket No. 07-114. See also, story titled "FCC Extends E911 Location Tracking Rules to Interconnected VOIP" in TLJ Daily E-Mail Alert No. 1,589, May 31, 2007, and story titled "FCC Adopts E911 Location Tracking Accuracy Benchmarks" in TLJ Daily E-Mail Alert No. 1,640, September 17, 2007, and story titled "FCC Files Opposition to Stay in Challenge to Its Latest Wireless E911 Location Tracking Mandates" in TLJ Daily E-Mail Alert No. 1,729, March 11, 2008, and story titled "FCC Seeks Comments on Wireless Location Tracking Rules" in TLJ Daily E-Mail Alert No. 1,833, September 26, 2008.
The House will meet the week of December 7-11. See, Rep. Hoyer's release.
10:00 AM. The Federal Communications Commission's (FCC) Communications Security, Reliability, and Interoperability Council (CSRIC) will hold its first meeting. See, FCC notice and notice in the Federal Register, November 17, 2009, Vol. 74, No. 220, at Pages 59183-59184. Location: FCC, Commission Meeting Room, 445 12th St., SW.
8:30 AM - 5:45 PM. The Federal Trade Commission (FTC) will host a public workshop titled "Exploring Privacy". See, release and event web page. Location: FTC Conference Center, 601 New Jersey Ave., NW.
The Intellectual Property Owners' Association (IPO) will host an event titled "20th Annual Conference on U.S. Patent and Trademark Law and Practice". See, notice. Location: Ronald Reagan Building and International Trade Center.
Deadline to submit comments to the Federal Communications Commission (FCC) in response to its Public Notice [9 pages in PDF] regarding universal service and intercarrier compensation. This document states that its purpose is to assist the FCC in drafting a document titled "National Broadband Plan". See also, story titled "FCC Requests NBP Comments on Universal Service and Intercarrier Compensation" in TLJ Daily E-Mail Alert No. 2,016, November 17, 2009.
EXTENDED FROM NOVEMBER 30. Extended deadline to submit comments to the Federal Trade Commission (FTC) in response to its notice of proposed rulemaking (NPRM) regarding deceptive marketing of credit reports. See, notice of extension [PDF] and notice of extension in the Federal Register, November 27, 2009, Vol. 74, No. 227, at Pages 62260-62261.
8:30 AM - 3:15 PM. The National Institute of Standards and Technology's (NIST) Technology Innovation Program (TIP) Advisory Board will meet. See, notice in the Federal Register, November 17, 2009, Vol. 74, No. 220, at Pages 59133-59134. Location: NIST, Administration Building, Employees' Lounge, Gaithersburg, MD.
9:00 AM - 6:00 PM. Day one of a three day conference hosted by the Organization of Economic Cooperation and Development (OECD) and Federal Trade Commission (FTC) titled "Empowering E-Consumers: Strengthening Consumer Protection in the Internet Economy". The deadline to request permission to attend is November 27. Attendance is free. The event will be webcast. See, conference web site and schedule. Location: FTC Conference Center, 601 New Jersey Ave., NW.
9:00 AM - 5:00 PM. The American Antitrust Institute (AAI) will host an event titled "Invitational Symposium on the Future of Private Antitrust Enforcement". At 9:30 AM there will be a panel titled "Expanding Empagran". The speakers will include James Fredricks (DOJ Antitrust Division). At 11:00 AM there will be a panel titled "The Legality of Reverse Payments". The speakers will include Seth Bloom (Senate Judiciary Committee staff). Rep. Hank Johnson (D-GA) will give the lunch speech. At 1:45 PM there will be a panel titled "Extending the ACPERA". The speakers will include Scott Hammond (DOJ's Antitrust Division). At 2:30 PM there will be a panel titled "Class Certification in the U.S. and Abroad". At 3:30 PM there will be a panel titled "Twombly's Children". See, Supreme Court's 2007 opinion in Bell Atlantic v. Twombly, 550 U.S. 544, and story titled "Supreme Court Rules in Bell Atlantic v. Twombly" in TLJ Daily E-Mail Alert No. 1,585, May 22, 2007. See, AAI notice. Location: National Press Club, 13th floor, 529 14th St., NW.
2:00 - 3:30 PM. The Department of Justice's (DOJ) Antitrust Division's Economic Analysis Group will host a presentation by Ron Goettler (University of Chicago) and Brett Gordon (Columbia University) titled "Competition and Innovation in the Microprocessor Industry: Does AMD spur Intel to innovate more?". See, paper [53 pages in PDF] with the same title. To request permission to attend, contact Patrick Greenlee at 202-307-3745 or atr dot eag at usdoj dot gov. Location: DOJ, Liberty Square Building, 450 5th St., NW.
8:30 AM. Day one of a two day partially closed meeting of the Department of Commerce's (DOC) Bureau of Industry and Security's (BIS) Emerging Technology and Research Advisory Committee (ETRAC). The agenda for the open portion of this meeting includes a discussion of "Deemed Export Control Methodology". See, notice in the Federal Register, November 24, 2009, Vol. 74, No. 225, at Page 61333. Location: Room 6087B, DOC, Hoover Building, 14th Street between Pennsylvania and Constitution Avenues, NW.
8:30 AM - 3:15 PM. The National Institute of Standards and Technology's (NIST) Malcolm Baldrige National Quality Award Board of Overseers will meet. See, notice in the Federal Register, November 17, 2009, Vol. 74, No. 220, at Page 59133. Location: NIST, Administration Building, Lecture Room A, Gaithersburg, MD.
9:00 AM - 5:45 PM. Day two of a three day conference hosted by the Organization of Economic Cooperation and Development (OECD) and Federal Trade Commission (FTC) titled "Empowering E-Consumers: Strengthening Consumer Protection in the Internet Economy". The deadline to request permission to attend is November 27. Attendance is free. The event will be webcast. See, conference web site and schedule. Location: FTC Conference Center, 601 New Jersey Ave., NW.
9:00 AM. The Department of Commerce's (DOC) Bureau of Industry and Security's (BIS) Regulations and Procedures Technical Advisory Committee will hold a partially closed meeting. See, notice in the Federal Register, November 25, 2009, Vol. 74, No. 226, at Pages 61662-61663. Location: Room 3884, DOC, Hoover Building, 14th Street between Pennsylvania and Constitution Avenues, NW.
9:30 AM - 2:00 PM. The National Telecommunications and Information Administration's (NTIA) Commerce Spectrum Management Advisory Committee will meet. See, notice in the Federal Register, November 23, 2009, Vol. 74, No. 224, at Pages 61113-61114. Location: Room 4813, DOC, Hoover Building, 14th Street between Pennsylvania and Constitution Avenues, NW.
10:00 AM. The Senate Judiciary Committee (SJC) will hold a hearing titled "Oversight of the Department of Homeland Security". The witness will be Janet Napolitano, Secretary of Homeland Security. See, notice. Location: Room 216, Hart Building.
2:30 PM. The Senate Commerce Committee (SCC) will hold a hearing titled "Research Parks and Job Creation: Innovation Through Cooperation". See, notice. Location: Room 253, Russell Building.
Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Public Notice [PDF] that requests comments regarding "identifying and remedying barriers to broadband deployment and adoption on Tribal lands". This is to aid the FCC in drafting its "National Broadband Plan". This item is DA 09-2093 in GN Docket Nos. 09-47, 09-51, and 09-137.
8:30 AM. Day two of a two day partially closed meeting of the Department of Commerce's (DOC) Bureau of Industry and Security's (BIS) Emerging Technology and Research Advisory Committee (ETRAC). The agenda for the open portion of this meeting includes a discussion of "Deemed Export Control Methodology". See, notice in the Federal Register, November 24, 2009, Vol. 74, No. 225, at Page 61333. Location: Room 3884, DOC, Hoover Building, 14th Street between Pennsylvania and Constitution Avenues, NW.
9:00 AM - 5:45 PM. Day three of a three day conference hosted by the Organization of Economic Cooperation and Development (OECD) and Federal Trade Commission (FTC) titled "Empowering E-Consumers: Strengthening Consumer Protection in the Internet Economy". The deadline to request permission to attend is November 27. Attendance is free. The event will be webcast. See, conference web site and schedule. Location: FTC Conference Center, 601 New Jersey Ave., NW.
10:00 AM. The Department of Commerce's (DOC) Bureau of Industry and Security's (BIS) Materials Technical Advisory Committee will meet. See, notice in the Federal Register, November 24, 2009, Vol. 74, No. 225, at Pages 61332-61333. Location: Room 6087B, DOC, Hoover Building, 14th Street between Pennsylvania and Constitution Avenues, NW.
6:00 PM. There will be an event titled "23rd Annual Chairman's Dinner". The reception begins at 6:00 PM. Dinner is at 7:30 PM. FCC Chairman Julius Genachowski will speak. Prices vary. See, registration form [PDF]. Location: Washington Hilton Hotel.
Deadline to submit comments to the Federal Communications Commission (FCC) in response to its Public Notice [4 pages in PDF] regarding online voter registration, online voting, and use to information technologies to make governmental meetings and processes more accessible. This item is DA 09-2431 in GN Docket Nos. 09-47, 09-51, and 09-137. This document states that its purpose is to assist the FCC in drafting a document titled "National Broadband Plan". See also, story titled "FCC Requests Comments on Voting and Democracy" in TLJ Daily E-Mail Alert No. 2,016, November 17, 2009.
12/2. Dennis Wharton, EVP of the National Association of Broadcasters (NAB), released a statement regarding the Federal Communications Commission's Public Notice (PN) [5 pages in PDF] that requests public comments regarding the possibility of reallocating television spectrum for wireless broadband. See, story titled "FCC Seeks Comments on Reallocation of Spectrum from TV to Wireless Broadband" in TLJ Daily E-Mail Alert No. 2,019, December 2, 2009. Wharton wrote that "Broadband deployment to unserved areas is a worthy goal, and broadcasters believe we can help the FCC accomplish its mission without stifling growth opportunities of free and local TV stations and the millions of viewers that we serve. We would hope policymakers would remember that after spending $15 billion upgrading to the next generation of television, broadcasters just returned to the government more than a quarter of the spectrum used for free and local TV service."
11/30. The Government Accountability Office (GAO) released a report [81 pages in PDF] titled "Information Technology: Postal Service Needs to Strengthen System Acquisition and Management Capabilities to Improve Its Intelligent Mail® Full Service Program".
11/25. The National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) released its draft NIST IR-7657 [32 pages in PDF] titled "Privilege Management". The deadline to submit comments is Monday, January 25, 2010.
11/20. The Board of Governors of the Federal Reserve System published a notice in the Federal Register that announced, describes, recites, and sets the comment deadline for, its changes to its rules and staff commentary regarding limitations on issuers' ability to impose dormancy, inactivity, or service fees for certain prepaid products, such as store gift cards and pre-paid cards. These rules continue to exempt wireless phone cards, pre-paid VOIP cards, and related telecommunications products. The deadline to submit comments is December 21, 2009. See, Federal Register, November 20, 2009, Vol. 74, No. 223, at Pages 60985-61012. These rules implement the Electronic Funds Transfer Act (EFTA), which is codified at 15 U.S.C. § 1693 et seq., and which was recently amended by the Credit Card Accountability Responsibility and Disclosure Act of 2009 (Credit CARD Act). This was HR 627 [LOC | WW]. President Obama signed it into law on May 22, 2009. It is now Public Law No. 111-24.
11/17. The National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) released its draft SP 800-37 Rev. 1 [88 pages in PDF] titled "Guide for Applying the Risk Management Framework to Federal Information Systems: A Security Life Cycle Approach". The deadline to submit comments is Thursday, December 31, 2010.
11/17. The Internal Revenue Service (IRS) published one notice in the Federal Register that announces, describes, recites, and sets the effective and applicability dates for, its amended rules pertaining to taxation of employee stock option grants. See, Federal Register, November 17, 2009, Vol. 74, No. 220, at Pages 59074-59087. The IRS published a second notice in the Federal Register that announces, describes, recites, and sets the effective and applicability dates for, its amended rules regarding the information reporting requirements of corporations that issue stock options. See, Federal Register, November 17, 2009, Vol. 74, No. 220, at Pages 59087-59092.