TLJ Daily E-Mail Alert No. 1,510, December 27, 2006.
December 27, 2006, Alert No. 1,510.
12/27. The Federal Communications Commission (FCC) released a document [39 pages in PDF] titled "Report on Cable Industry Prices". The FCC adopted this item at a December 20 event.
This proceeding is titled "In the Matter of Implementation of Section 3 of the Cable Television Consumer Protection and Competition Act of 1992; Statistical Report on Average Rates for Basic Service, Cable Programming Service, and Equipment". This report is FCC 06-179 in MM Docket No. 92-266. The FCC also issued a short release [PDF] that describes the report.
The report begins with a summary of its major findings. It states that "cable prices increased more than 5 percent last year and by 93 percent since the period immediately prior to Congress’s enactment of the Telecommunications Act of 1996. Expanded basic prices rose more than 6 percent or twice the rate of inflation last year. Prices are 17 percent lower where wireline cable competition is present. DBS competition, however, does not appear to constrain cable prices -- average prices are the same as or slightly higher in communities where DBS was the basis for a finding of effective competition than in noncompetitive communities. Finally, increases in programming expenses were equivalent to more than half of the overall increase in prices for the basic and expanded basic tiers."
This report includes a statistical analysis of prices. The unit of analysis is markets. There are 659 observations. The report contains a single multivariate regression model for which the dependent variable is the log of the price in each market. The independent variables are the log of cable's share of the MVPD market in system area, log of median family income, log of number of parent company subscribers of cable operator, log of cable plant's capacity in MHz, log of population density in the community served, dichotomous variable for the presence or absence of vertical affiliation with one or more programming networks, dichotomous variable for whether a petition requesting a finding of effective competition in the community has been granted, and a dichotomous variable for availability or non-availability of local programming in DBS operators’ program offerings in the community served.
This model's estimates for the coefficients for all of the independent variables, except for median family income and local programming, are statistically significant at the 1% level. However, the R squared value is small (.28), indicating that little of the variation in cable prices from market to market is explained by this model.
The estimated coefficient for the market share variable is positive. The report states that "The positive relationship between cable prices and market share may suggest a structure-conduct nexus in which cable operators with high market shares wield unilateral market power to charge higher prices or it may reflect higher costs in markets in which cable operators have large market shares."
FCC Chairman Kevin Martin wrote in a separate statement [PDF] that "the price for every service the Commission regulates has decreased -- except for cable. For instance, the average rate for wireless service has plummeted 80% and average interstate telephony rates have decreased almost 40%. This is, in part, because those other services have been subjected to competition from providers who have competed on price, as well as on service options and quality. In contrast, cable prices alone have increased, and they have risen more than 90%."
Martin added that "Cable does face some competition from DBS, but our report reveals that DBS and cable do not seem to compete on price."
He said that because of this, it is critical for the FCC to "remove regulatory barriers to the ability of a second cable operator to enter the market".
Kyle McSlarrow, head of the National Cable & Telecommunications Association (NCTA), made a similar point. He stated in a NCTA release that "The FCC's pricing survey fails to account for the benefits of bundled pricing, its favorable impact on cable prices, and the greatly increased value of cable services in a digital world. Ignoring these factors makes the pricing survey obsolete on arrival and an unsound basis for policy decisions."
FCC Commissioner Jonathan Adelstein wrote in a concurring statement [PDF] that "once again this regular report provides insufficient data and analysis to explain how cable companies’ prices are growing at such tremendous rates, leaving both us and Congress without the information we need to know how best to combat rising prices." FCC Commissioner Michael Copps also wrote a concurring statement [PDF].
12/20. The Federal Communications Commission (FCC) adopted, but did not release, a Report and Order and Further Notice of Proposed Rulemaking in its proceeding titled "Implementation of Section 621(a)(1) of the Cable Communications Policy Act of 1984 as amended by the Cable Television Consumer Protection and Competition Act of 1992".
The FCC issued a short press release, and all five Commissioners released statements.
The three Republican Commissioners supported this item, and the two Democrats opposed it. FCC Commissioner Jonathan Adelstein wrote a long dissent which attacks the factual basis for the order, disputes the order on policy grounds, asserts that the FCC lacks legal authority to issue the order, and criticizes the process by which the order was written. See also, story in this issue titled "Adelstein Opposes Franchising Order".
FCC Chairman Kevin Martin (at right) wrote in his statement [PDF] in support of this item that "Telephone companies are investing billions of dollars to upgrade their networks to provide video. As new providers began actively seeking entry into video markets, we began to hear that some local authorities were making the process of getting franchises unreasonably difficult, despite clear statutory language. The record collected by the Commission in this proceeding cited instances where LFAs sat on applications for more than a year or required extraordinary in kind contributions such as the building of public swimming pools and recreation centers."
He said that "This item appropriately removes such regulatory barriers by giving meaning to the words Congress wrote in section 621 of the Cable Act."
Section 621 of the Communications Act of 1934, as amended by the Cable Television Consumer Protection and Competition Act of 1992, is codified at 47 U.S.C. § 541. Subsection (a)(1) provides that "A franchising authority may award, in accordance with the provisions of this subchapter, 1 or more franchises within its jurisdiction; except that a franchising authority may not grant an exclusive franchise and may not unreasonably refuse to award an additional competitive franchise. Any applicant whose application for a second franchise has been denied by a final decision of the franchising authority may appeal such final decision pursuant to the provisions of section 555 of this title for failure to comply with this subsection."
Martin explained that "The ability to deploy broadband networks rapidly however, is intrinsically linked to the ability to offer video to consumers." That is, broadband network providers need to be able to earn revenues from the sale of video services to incent them to build their broadband networks. He said that "By enhancing the ability of new entrants to provide video services then we are advancing our goal of universal affordable broadband access for Americans, as well as our goal of increased video competition."
The FCC has not yet released this item. It has only offered a brief description of some of its contents. The FCC's release states that the order portion of this item "concludes that the current operation of the franchising process constitutes an unreasonable barrier to entry that impedes the achievement of the interrelated federal goals of enhanced cable competition and accelerated broadband deployment."
The release states that the FCC "Found that franchising negotiations that extend beyond certain time frames amount to an unreasonable refusal to award a competitive franchise within the meaning of Section 621(a)(1)".
Commissioner Adelstein wrote in his dissenting statement [8 pages in PDF] that the order imposes a "90-day shot clock for new entrants with existing rights of way", and requires "the grant of a new entrant’s franchise after 90-days".
He added that this "90-day shot clock seems to function more like a waiting period, during which time the new entrant has little incentive to engage in meaningful negotiations".
Adelstein's and others' use of the term "shot clock" is a metaphor based upon the US sport of basketball. Under National Basketball Association rules a team must take a shot at the goal within 24 seconds, or loose possession of the ball.
Rep. Mike Doyle (D-PA), wrote in a letter to the FCC on December 19, 2006, that "the proposed ``shot clock´´ has it backwards: it allows the franchise applicant to run out the clock in order to get a desirable outcome-video service without local oversight. If the Commission is seriously interested in upholding the law by preserving local input in the franchising process, then it should not create a disincentive for new providers to negotiate in good faith with local governments."
The FCC's release states that the FCC "Found that requiring an applicant to agree to unreasonable build-out requirements constitutes an unreasonable refusal to award a competitive franchise".
The FCC's release states that the FCC "Found that, unless certain specified costs, fees, and other compensation required by local franchising authorities are counted toward the statutory five percent cap on franchise fees, demanding them could result in an unreasonable refusal to award a competitive franchise".
The FCC's release states that the FCC "Found that it would be an unreasonable refusal to award a competitive franchise if the local franchising authority denied an application based on a new entrant’s refusal to undertake certain unreasonable obligations relating to public, educational, and governmental (``PEG´´) and institutional networks (``I-Nets´´)".
The FCC's release states that the FCC "Preempted local laws, regulations, and requirements, including local level-playing-field provisions, to the extent they impose greater restrictions on market entry than the rules adopted herein."
Finally, the FCC's release states that the FCC "concluded that although the record allows it to determine generally what constitutes an ``unreasonable refusal to award an additional competitive franchise´´ at the local level, the Commission does not have sufficient information to make such determinations with respect to franchising decisions made at the state level or in compliance with state statutory directives, such as statewide franchising decisions. As a result, the Order addresses only decisions made by county- or municipal-level franchising authorities."
This item is FCC 06-180 in MB Docket 05-311. The FCC adopted a Notice of Proposed Rulemaking (NPRM) [26 pages in PDF] on November 3, 2005. The FCC released the text of this NPRM on November 18, 2005. It is FCC 05-189. This proceeding is MB Docket 05-311. See also, story titled "FCC Adopts NPRM Regarding Local Franchising of Video Services" in TLJ Daily E-Mail Alert No. 1,247, November 4, 2005.
12/20. FCC Commissioner Jonathan Adelstein dissented from the FCC's Report and Order and Further Notice of Proposed Rulemaking regarding local franchising authorities. The FCC adopted, but did not release, this item at a December 20 event. See also, See also, story in this issue titled "FCC Adopts Order Affecting Local Franchising Authorities".
Adelstein (at right) wrote in his dissenting statement [PDF] that this order "goes out on a limb in asserting federal authority to preempt local governments, and then saws the limb off with a highly dubious legal and policy scheme that substitutes our judgment as to what is reasonable for that of local officials -- all in violation of the franchising framework established in the Communications Act."
He predicted that "The result will be ... a likely rejection by the courts."
He added that "the FCC is a regulatory agency, not a legislative body" and that "this is legislation disguised as regulation".
FCC orders are frequently overturned by the courts. The FCC often exceeds its statutory authority. And, the FCC often functions in a legislative capacity. See for example, article titled "Commentary: Administrative Process and the FCC" in TLJ Daily E-Mail Alert No. 1,365, May 8, 2006.
Moreover, Commissioner Adelstein often participates in such legislative activities. Although, he, like other Commissioners, has not acknowledged the nature of the process. What is unusual about the present proceeding is that Commissioner Adelstein has so publicly accused the FCC of assuming legislative authority.
He also wrote that "the majority attempts to accomplish today what the elected representatives of the American people have tried to do through the legislative process. In doing so, the Commission not only disregards current law and exceeds its authority, but it also usurps congressional prerogatives, ignores cannons of statutory construction and the plain meaning of Title VI."
"Yet today, the Commission is federalizing the franchising process, taking it upon ourselves to determine in every local dispute what is ``unreasonable,´´" asserted Adelstein.
He continued that "For the past two years, both chambers of Congress have held nearly two dozen hearings, and sought to enact legislation amending the Cable Act to reform the current franchising process and ``strike the right balance between national standards and local oversight.´´ Yet, the Commission has finalized in the dark of last night what Congress was unable to resolve in two years of intensive deliberations. In contrast to the Senate where I used to work, one might call the FCC the world’s least deliberative body. And the final product shows it."
He elaborated that "The House bill proposed a national cable franchising regime, while the Senate bill proposed an expedited competitive franchise process and would have required local franchising authorities to issue franchises pursuant to a standard franchise application form that would be drafted by the Commission. Today’s Order turns federalism on its head by putting the Commission in the role of sole arbiter of what is a reasonable or unreasonable LFA practice and simply eliminating the franchise process in certain circumstances if an arbitrary shot clock has expired."
FCC Commissioner Michael Copps also opposed this item. He wrote in his statement [PDF] that he wanted to preserve LFA's "right to seek specific and far-reaching build-out requirements", and their "ability to negotiate for PEG and I-NET facilities".
He also questioned the FCC's legal authority. "Many people questioned, and continue to question, the Commission’s legal authority to do what it is doing today." He added that this item "only invites more delay, more confusion, and more possibility of legal challenge."
12/20. Various entities reacted to the FCC's Report and Order and Further Notice of Proposed Rulemaking regarding local franchising authorities. The FCC adopted, but did not release, this item at a December 20 event. See also, story in this issue titled "FCC Adopts Order Affecting Local Franchising Authorities".
Kyle McSlarrow, head of the National Cable & Telecommunications Association (NCTA), stated in a release that "it appears that the FCC pared back some of the more troubling proposals that had been floated in recent days. The Commission made crystal clear that its order isn't a license for AT&T to ignore the franchising process and operate under different rules from its competitors. In addition, the Commission stepped back from pre-empting all state franchising laws, many of which have acknowledged the value to consumers of a level playing field for all competitors. We appreciate the FCC's commitment to complete action within six months on a further notice to address regulatory parity."
He added, "But the simple fact is that today's order doesn't provide a level playing field, a concept that has been universally supported up until now at federal, state, and local levels. We don't believe the Commission has the legal authority to establish separate regimes for incumbents and new entrants in today's highly competitive marketplace."
The National Association of Broadcasters' (NAB) Dennis Wharton stated in a release that the "NAB salutes the FCC for taking decisive action to increase much needed competition to cable monopolies. With today's action, the Commission has delivered a holiday treat for cable customers who will now have a choice and the ability to avoid rate hikes that run two to four times the annual rate of inflation."
Walter McCormick, head of the USTelecom, stated in a release that "We applaud the FCC for its vision and leadership to help bring consumers more choice in the video market. The steps outlined today will help fix the franchising process and end the unnecessary delays caused by outdated regulations. With the Commission's own data showing cable prices nearly doubling over ten years, streamlining the franchising process will help bring real competition and lower prices to the video market. It will also help speed the deployment of high-speed Internet services across the nation. The telecom industry will continue to work toward ending all unnecessary regulatory obstacles to help speed the delivery of new and innovative services to consumers."
Verizon's Susanne Guyer stated in a release that "Today's action will fast-forward the delivery of new choices, lower prices and better services to consumers. The FCC is standing up for consumers who are tired of skyrocketing cable bills and want greater choice in service providers and programming. Verizon has an aggressive schedule to deploy FiOS TV. This order will enable us to reach agreements with local franchise authorities more quickly so we can deliver the benefits of competition to consumers faster. The FCC has taken strong steps to increase consumer choice and spur investment in broadband and video deployment."
Joe Savage, head of the Fiber to the Home (FTTH) Council, stated in a release that "The FCC is to be applauded for today's action streamlining the outmoded and detrimental video franchising process. This action caps a year in which state legislators and governors in eight states joined Texas in enacting new laws facilitating new video entry over fiber-to-the-home and other advanced broadband networks. As a result, American consumers will have more choice, lower rates, and access to much higher-speed broadband networks."
12/15. Jule Sigall will begin work at the Microsoft Corporation in January of 2007. Until December 15, 2006, he was the Associate Register for Policy and International Affairs at the Copyright Office (CO). David Carson, who has been General Counsel, is now the Associate Register for Policy and International Affairs. The position of Associate General Counsel, which has been held by Tanya Sandros, will be renamed Deputy General Counsel. Sandros is now the Acting General Counsel. Maria Pallente is the new Deputy General Counsel.
Rob Kasunic, Principal Legal Advisor in the Office of the General Counsel, is on leave for the 2006-2007 academic year. He is teaching intellectual property courses at American University's law school. Marybeth Peters remains the Register of Copyrights. See also, CO organizational chart.
Sigall recently worked on matters related to the World Intellectual Property Organization's (WIPO) proposed "Treaty on the Protection of Broadcasting Organizations". He was also the principal drafter of the CO's January 2006 report [PDF] titled "Report on Orphan Works". The 110th Congress is likely to enact legislation implementing some of the recommendations contained in this report.
Sigall joined the CO on February 10, 2003. See, CO release. Before that, he worked in the intellectual property and technology practice group of the law firm of Arnold & Porter.
While at Arnold & Porter, he represented recording companies in UMG Recordings Inc. v. MP3.com, Inc. This was a successful action against a music storage service that allowed subscribers to copy and store online the content of purchased CDs, and then play them back via the internet. See, District Court's opinion [10 pages in PDF], which is also reported at 92 F. Supp. 2d 349. This case was UMG Recordings, Inc. v. MP3.com, U.S. District Court for the Southern District of New York, D.C. No. 00-CV-0472 (JSR).
He also represented a photographer in Kelly v. Arriba Soft Corp. This was a case involving the fair use exception to copyright infringement in the context of online digital images and search engines. The Court of Appeals held that Arriba Soft's use of small thumbnail copies of Kelly's copyrighted photographs in its search engine results constituted fair use. See, Court of Appeals' revised opinion [16 pages in PDF], which is also reported at 336 F.3d 811. This case is Leslie Kelly, dba Les Kelly Publications, dba Les Kelly Enterprises, dba Show Me The Gold v. Arriba Soft Corporation, U.S. Court of Appeals for the 9th Circuit, App. Ct. No. 00-55521, an appeal from the U.S. District Court for the Central District of California, D.C. No. CV-99-00560-GLT.
The opinions in UMG Recording v. MP3.com and Kelly v. Arriba Soft are the leading precedents pertinent to the pending cases involving whether the Google Print for Libraries (GPL) program violates the copyrights of authors and publishers. For a summary of these cases, see story titled "Google, Publishers and Authors Debate Google's Print for Libraries Program" in TLJ Daily E-Mail Alert No. 1,239, October 25, 2005.
Also, Sigall was one of the attorneys in Bonneville International Corp. v. Peters, a case regarding the application of the sound recording digital performance right to internet streaming of radio signals. See, Court of Appeals' opinion [PDF].
See also, Sigall's George Washington University Law School bio.
12/21. Kristine Chadwick was named the Chief Financial Officer and Associate Executive Director (Finance) of the Securities and Exchange Commission (SEC). See, SEC release. Chadwick replaces Margaret Carpenter, who is retiring in January 2007. See, SEC release.
12/27. The Federal Trade Commission (FTC) published a notice in the Federal Register announcing that it will will continue its previously announced policy of forbearing from enforcing the prohibition of prerecorded calls in the Telemarketing Sales Rule's (TSR) call abandonment provisions, until the conclusion of the prerecorded call amendment proceeding. See, Federal Register, December 27, 2006, Vol. 71, No. 248, at Pages 77634-77635.
12/27. The Internal Revenue Service (IRS) published a notice in the Federal Register that announces, describes, recites, and sets the effective date (December 27, 2006) for rules changes regarding taxation of income derived from the transmission of communications or data between the U.S. and a foreign country, and taxation of income from certain space or ocean activities, pursuant to 26 U.S.C. § 863(d) & (e). See, Federal Register, December 27, 2006, Vol. 71, No. 248, at Pages 77594-77612.
12/21. The Securities and Exchange Commission (SEC) published a notice in the Federal Register that announces and explains its extension for certain public companies of the deadlines for compliance with the internal reporting requirements of Section 404 of the Sarbanes Oxley Act of 2002. The notice states that the SEC is "extending further for smaller public companies the notice dates that were published on September 29, 2005, in Release No. 33-8618 [70 FR 56825], for their compliance with the internal control reporting requirements mandated by Section 404 of the Sarbanes-Oxley Act of 2002. Under the extension, a non-accelerated filer is not required to provide management's report on internal control over financial reporting until it files an annual report for its first fiscal year ending on or after December 15, 2007." The just published notice also states that the SEC is "adopting amendments that provide for a transition period for a newly public company before it becomes subject to the internal control over financial reporting requirements." See, Federal Register, December 21, 2006, Vol. 71, No. 245, at Pages 76580-76599.
12/21. The Department of Justice's (DOJ) Antitrust Division announced yet another plea agreement in its ongoing investigation of dynamic random access memory (DRAM) price fixing. In this latest action, Young Hwan Park, who is currently President of Samsung Semiconductor Inc., plead to criminal violation of the Sherman Antitrust Act, and agreed to serve 10 months in prison and pay a criminal fine of $250,000. See, DOJ release.
12/21. The Federal Trade Commission (FTC) announced in a release that it will hold a workshop that will address online marketing of negative options on Thursday, January 25, 2007. The FTC wrote in a notice in the Federal Register that "Many offers for products or services marketed to consumers today include not just an offer for one product or an initial provision of services, but the opportunity to consent in advance to continue to receive products or services in the future. This type of sales offer or agreement is commonly known as a ``negative option offer.´´ The central characteristic of a negative option offer is that the customer’s silence or failure to take an affirmative action to reject goods or services or to cancel the agreement is interpreted by the seller as acceptance of the offer." The workshop will be held in the FTC satellite building conference center, 601 New Jersey Ave., NW. The deadline to submit written comments is February 26, 2007. See, Federal Register, December 27, 2006, Vol. 71, No. 248, at Pages 77753-77754.
12/22. The Federal Communications Commission (FCC) released a redacted copy [63 pages in PDF] of its Memorandum Opinion and Order in its proceeding titled "In the Matter of Applications for the Assignment of License from Denali PCS, L.L.C. to Alaska DigiTel, L.L.C. and the Transfer of Control of Interests in Alaska DigiTel, L.L.C. to General Communication, Inc." This order approves the transfer of a cellular license from Denali to Alaska DigiTel, and transfer of a controlling interest in Alaska DigiTel to GCI, subject to conditions. This item contains a long and detailed discussion of the effects upon competition of horizontal mergers in wireless markets. The vote was 5-0. However, Commissioner Jonathan Adelstein wrote a concurring statement [PDF], and Commissioner Michael Copps wrote a concurring statement [PDF], in which each expressed his unease with the transaction. This order is FCC 06-185 in WT Docket No. 06-114. The FCC sometimes drops noteworthy orders, in matters arising in the state of Alaska, during the year end holidays, when many observers of the FCC are away.
12/20. The Federal Communications Commission (FCC) adopted, and released, a Ninth Notice of Proposed Rulemaking [26 pages in PDF] regarding public safety communications in the 700 MHz band. This proceeding is titled "In the Matter of Implementing a Nationwide, Broadband, Interoperable Public Safety Network in the 700 MHz Band / Development of Operational, Technical and Spectrum Requirements for Meeting Federal, State and Local Public Safety Communications Requirements Through the Year 2010". This item is FCC 06-181 in WT Docket No. 96-86 and PS Docket No. 06-229. Initial comments will be due 45 days after publication of a notice in the Federal Register. This publication has not yet occurred. Reply comments will be due 60 days after such publication.
12/20. The Federal Communications Commission (FCC) adopted, but did not release, a Declaratory Ruling finding that internet protocol (IP) captioned telephone service (CTS) is a form of telecommunications relay service (TRS) compensable from the Interstate TRS Fund. The FCC issued a release that explains that "An IP captioned telephone call can be set up similar to a two-line captioned telephone call, except that the line from the user to the provider would be via the Internet, not a second PSTN line. The consumer would make a voice to voice call to the other party on a standard telephone and the PSTN; at the same time, the voice of the called party is directed from the consumer’s telephone to a personal computer (or similar device) that routes it to the provider via the Internet. The provider, in turn, sends back to the consumer the text of what was spoken. As a result, the consumer can both hear (to the extent possible) what the called party is saying over the standard voice telephone headset, and read the text of what the called party said on the computer or similar device." See also, statement [PDF] of Kevin Martin, statement [PDF] of Deborah Tate, statement [PDF] of Robert McDowell, statement [PDF] of Michael Copps, and statement [PDF] of Jonathan Adelstein. This item is FCC 06-182 in CG Docket No. 03-123.
The House and Senate will next meet at 12:00 NOON on Thursday, January 4, 2007. See, HConRes 503.
Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Notice of Inquiry [37 pages in PDF] regarding preparation of its annual report to the Congress regarding the status of competition in markets for the delivery of video programming. This NOI is FCC 06-154 in MB Docket No. 06-189. The FCC adopted this NOI at an October 12, 2006, meeting, and released it on October 20, 2006. See, stories titled "FCC Adopts NOI Regarding Video Competition" in TLJ Daily E-Mail Alert No. 1,467, October 12, 2006, and "FCC Releases NOI on Video Competition and Other Issues" in TLJ Daily E-Mail Alert No. 1,473, October 23, 2006. See also, notice in the Federal Register, November 17, 2006, Vol. 71, No. 222, at Pages 66946-66953.
Deadline to submit initial comments to the Federal Communications Commission (FCC) regarding competitive bidding procedures for Auction No. 72, the Phase II 220 MHz spectrum licenses auction scheduled to commence on June 20, 2007. See, notice in the Federal Register, December 20, 2006, Vol. 71, No. 244, at Pages 76332-76336.
5:00 PM. Deadline to submit requests to participate in the Copyright Office's and the U.S. Patent and Trademark Office's (USPTO) January 3 roundtable on the activities of the World Intellectual Property Organization (WIPO) regarding the proposed Treaty on the Protection of the Rights of Broadcasting Organizations. See, notice in the Federal Register, December 12, 2006, Vol., No. 238, at Pages 74565-74566.
The Federal Communications Commission (FCC) and other federal offices will be closed. See, Office of Personnel Management's (OPM) list of federal holidays and 5 U.S.C. § 6103. The House Press Gallery will be closed.
12:30 PM. Rep. Barney Frank (D-MA), the incoming Chairman of the House Financial Services Committee, will give a speech. Prices vary. Location: Holeman Lounge, National Press Club, 529 14th St. NW, 13th Floor.
1:00 - 3:00 PM. The Copyright Office and the U.S. Patent and Trademark Office (USPTO) will host a roundtable the activities of the World Intellectual Property Organization (WIPO) regarding the proposed Treaty on the Protection of the Rights of Broadcasting Organizations. See, notice in the Federal Register, December 12, 2006, Vol., No. 238, at Pages 74565-74566. Location: Atrium Conference Room, USPTO, 600 Dulany Street, Madison West, 10th floor, Alexandria, VA.
The House and Senate will meet at 12:00 NOON on Thursday, January 4, 2007. See, HConRes 503.
Deadline to submit reply comments to the Federal Communications Commission (FCC) to assist the Wireless Telecommunications Bureau (WTB) in drafting a report on the ability of persons with hearing disabilities to access digital wireless telecommunications. See, FCC Public Notice [4 pages in PDF] (DA 06-2285). This proceeding is WT Docket No. 06-203.
Deadline to submit comments to the Federal Communications Commission (FCC) regarding its collection of data regarding Specialized Mobile Radio (SMR) systems in the 800 MHz band. See, notice in the Federal Register, December 6, 2006, Vol. 71, No. 234, at Page 70765.


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[COI-065] C. Gaya, A. Torayev, Y. Yin, C. Surcin, D. Larcher, B. Fleutot, M. Morcrette, A. A. Franco, "Impacts of the Electrode Fabrication Process on the Performances of Lithium-Oxygen Batteries", oral presentation at the 68th annual meeting of the International Society of Electrochemistry (Providence, USA, August 27 - September 1, 2017).
[COI-064] G. Shukla, D. del Olmo Diaz, V. Thangavel, A. A. Franco, "Modeling slurry electrodes for redox flow batteries using kinetic Monte Carlo", oral presentation at the 231st ECS Meeting (New Orleans, USA, May 28 – June 1, 2017).
[COI-063] Y. Yin, C. Gaya, A. Torayev, V. Thangavel, D. Larcher, A.A. Franco, "Multi-Scale Modeling and Experimental Characterization of Charge Process of Li-O2 Batteries: Impacts of Particle Size and Cycling History", oral presentation at the 231st ECS Meeting (New Orleans, USA, May 28 – June 1, 2017).
[COI-062] Y. Yin, R. Zhao, Y. Deng, A.A. Franco, "Meso-Scale Model of Li2O2 Formation in Li-O2 Batteries: Compactness of Thin Film and Its Link to Charge Transport Mechanism", oral presentation at the 231st ECS Meeting (New Orleans, USA, May 28 – June 1, 2017).
[COI-061] V. Thangavel, M. Quiroga, M. Morcrette, A.A. Franco, "Microstructurally resolved multiscale models to study the effects of C/S cathode microstructures used in Lithium Sulfur Batteries", oral presentation in the "Lithium Sulfur Batteries: Mechanisms, Modelling and Materials" conference (London, UK, April 27, 2017).
[COI-060] Y. Yin, A. Torayev, C. Gaya, D. Larcher, A.A. Franco, "Understanding the role of Li2O2 particle size on Li-O2 battery charge process", oral presentation at the 20th Topical Meeting of the International Society of Electrochemistry (ISE) (Buenos Aires, Argentina, March 19-22, 2017).
[COI-059] A.A. Franco, G. Shukla, G. Blanquer, Y. Yin, M. Quiroga, K.H. Xue, T.K. Nguyen, "Computational Data Mining to Boost the Next Generation Batteries R&D: the Electrode Architecture", oral presentation in the 66th Topical Meeting of the International Society of Electrochemistry (ISE) (Taipei, Taiwan, October 4-9, 2015).
[COI-058] Y. Yin, M. A. Quiroga, G. Blanquer, A.A. Franco, "Boosting Lithium Air Batteries from Multiscale Modeling", oral presentation in the 66th Topical Meeting of the International Society of Electrochemistry (ISE) (Taipei, Taiwan, October 4-9, 2015).
[COI-057] T.-K. Nguyen, A. El Kharbachi, K.-H. Xue, V. Thangavel, M. Quiroga, D. Larcher, A. A. Franco,“Investigating transient phenomena in Lithium Ion Batteries: a multiscale modeling approach” , oral presentation in the 17th Topical Meeting of the International Society of Electrochemistry (ISE), Saint Malo, France, May 31-June 3, 2015).
[COI-056] K.-H. Xue, M. Morcrette, C. Guery, A.A. Franco, "Multiscale modeling of lithium sulfur battery involving cathode carbon microstructure", oral presentation in the 16th Topical Meeting of the International Society of Electrochemistry (ISE) (Angra dos Reis, Brazil, March 22-26, 2015).
[COI-055] A.A. Franco, M.L. Doublet, T.K. Nguyen, J. P. Chehab, Y. Mammeri, "Ab initio-based Multiscale Simulations of Conversion Reactions in Lithium Ion Batteries", oral presentation in the 225th Annual Meeting of the ECS (Orlando, USA, May 11-15, 2014).
[COI-054] M. Quiroga, K.H. Xue, T.K. Nguyen, H. Huang, A.A. Franco, "Electrochemical Double Layers in Electrochemical Energy Storage and Conversion: A Multiscale Simulation Study", oral presentation in the 225th Annual Meeting of the ECS (Orlando, USA, May 11-15, 2014).
[COI-053] M. Quiroga, K.H. Xue, T.K. Nguyen, H. Huang, M. Tulodziecki, A.A. Franco, "A New Model of Non-Equilibrium Electrochemical Interfaces in Electrochemical Energy Conversion", oral presentation in the incoming 15th Topical Meeting of the International Society of Electrochemistry (Niagara Falls, Canada, April 27-30, 2014).
[COI-052] A.A. Franco, "Conversion reactions in lithium ion and lithium air batteries: from multiscale modeling to the electrodes rational design", oral presentation in the 64th Annual Meeting of the International Society of Electrochemistry, (Santiago de Queretaro, Mexico, September 8-13, 2013).
[COI-051] A.A. Franco, "Top-down and bottom-up modeling paradigms for the simulation of batteries and supercapacitors", oral presentation in the International Workshop on Multiscale Modeling of Materials for Energy Conversion Applications, (Athens, Greece, November 8-9, 2012).
[COI-050] A.A. Franco, "Multiple degradation mechanisms in PEM Fuel Cells: a modeling study", oral presentation in the 63rd Annual Meeting of the International Society of Electrochemistry (Prague, Czech Republic, August 19-24, 2012).
[COI-049] Y. Suzue, A.A. Franco, T. Mashio, A. Ohma, K. Shinohara, "Modeling of the Pt/Nafion interface in PEMFC catalyst layers and reaction kinetics by an ab initio based mean field approach", oral presentation in the 63rd Annual Meeting of the International Society of Electrochemistry (Prague, Czech Republic, August 19-24, 2012).
[COI-048] L. F. Lopes Oliveira, C. Jallut, A.A. Franco, "Multiscale modeling study of the electrochemical and transport mechanisms in PEM Water Electrolyzers", oral presentation in the 63rd Annual Meeting of the International Society of Electrochemistry (Prague, Czech Republic, August 19-24, 2012).
[COI-047] A.A. Franco, "A multiscale physical model of electrochemical storage systems", oral presentation in the 221st Meeting of the ECS (Seattle, USA, May 6-10, 2012).
[COI-046] A.A. Franco, V. Vetere, B. Deguilhem, S. Laref, "Towards a multiscale simulation tool of lithium ion graphite/FePO4 batteries", oral presentation in the 221st Meeting of the ECS (Seattle, USA, May 6-10, 2012).
[COI-045] A.A. Franco,"Materials electrochemical degradation mechanisms in PEM Fuel Cells: new insights from a multiscale modeling approach", oral presentation in the 221st Meeting of the ECS (Seattle, USA, May 6-10, 2012).
[COI-044] A.A. Franco, L.F. Lopes Oliveira, C. Jallut, "A new multiscale physical model for the transient analysis of PEM water electrolyzers", oral presentation in the 221st Meeting of the ECS (Seattle, USA, May 6-10, 2012).
[COI-043] A.A. Franco, R. Coulon, K. Malek, "A microstructural resolved model of PFSA membranes degradation in PEM Fuel Cells", oral presentation in the 221st Meeting of the ECS (Seattle, USA, May 6-10, 2012).
[COI-042] K. Malek, A.A. Franco,"Mesoscale simulations of Nafion degradation in PEM Fuel Cells", oral presentation in the 221st Meeting of the ECS (Seattle, USA, May 6-10, 2012).
[COI-041] D.D. Borges, S. Mossa, G. Gebel, K. Malek, A.A. Franco, "Effect of surface hydrophilicty on the formation of Nafion thin film inside PEMFC catalyst layers: a computational modeling study", oral presentation in the 221st Meeting of the ECS (Seattle, USA, May 6-10, 2012).
[COI-040] A.A. Franco,Y. Suzue, R. Ferreira de Morais, A. Kachmar, T. Mashio, A. Ohma, K. Shinohara, "Multiscale modeling of electrochemical double layer formation on Pt electrodes covered by Nafion Fuel Cell catalysts", oral presentation in the 221st Meeting of the ECS (Seattle, USA, May 6-10, 2012).
[COI-039] A.A. Franco, K. Malek, "Multiscale modeling of degradation processes in PEM fuel cells", International Conference on Multiscale Approaches for Process Innovation (Lyon, France, January 25, 2012).
[COI-038] R. Ferreira de Morais, D. Loffreda, Ph. Sautet, A.A. Franco, "A multiscale kinetic modeling investigation of oxygen reduction reaction on Pt(111) and Pt3Ni(111)-based PEM fuel cell cathode", International Conference on Multiscale Approaches for Process Innovation (Lyon, France, January 25, 2012).
[COI-037] R. Coulon, W. Bessler, A.A. Franco, “Modeling of the Chemical Degradation of PFSA Membranes and its Impact on the PEM Fuel Cell Performance”, oral presentation on the 2nd International Workshop on Degradation Issues of Fuel Cells (Thessaloniki, Greece, September 21-23, 2011).
[COI-036] Y. Suzue, A.A. Franco, A. Kachmar, T. Mashio, A. Ohma, K. Shinohara, "Multiscale Modeling of Ionomer Adsorption on Pt Nanoparticles: Mechanisms and Consequences on the PEMFC ORR", oral presentation in the 62nd Annual Meeting of the International Society of Electrochemistry (Niigata, Japan, September 11 – 16, 2011).
[COI-035] L. F. Lopes Oliveira, C. Jallut, A.A. Franco, "Electrochemical and Transport Mechanisms in PEM Water Electrolyzers: New Insights from a Multiscale Modeling Study",oral presentation in the 62nd Annual Meeting of the International Society of Electrochemistry (Niigata, Japan, September 11 – 16, 2011).
[COI-034] R. Ferreira de Morais, D. Loffreda, P. Sautet, A.A. Franco, “A Multiscale Kinetic Modeling Investigation of the ORR in a Pt(111) and Pt3Ni(111)-Based PEMFC Cathode", oral presentation in the 219th Meeting of the American Electrochemical Society (ECS), (Montreal, Canada), May 1-6, 2011.
[COI-033] A.A. Franco, “On the Impact of Water Management on the Reversible vs. Irreversible Performance Degradation in PEM Fuel Cells: Mitigation of Materials Aging by Sacrificial Materials Aging Mechanisms", oral presentation in the 219th Meeting of the American Electrochemical Society (ECS), (Montreal, Canada), May 1-6, 2011.
[COI-032] A.A. Franco, L.F. Lopes Oliveira, E. Mayousse, N. Guillet, C. Jallut, “A Multiscale Mechanistic Model for the Transient Analysis of PEM Water Electrolyzers", oral presentation in the 219th Meeting of the American Electrochemical Society (ECS), (Montreal, Canada), May 1-6, 2011.
[COI-031] F. Nores Pondal, N. Guillet, A.A. Franco, “Bimetallic Electrocatalyst and Magnetically Improved Oxygen Reduction Reaction in PEFC", oral presentation in the 219th Meeting of the American Electrochemical Society (ECS), (Montreal, Canada), May 1-6, 2011.
[COI-030] S.K. Cheah, O. Lemaire, L. Guetaz, O. Sicardy, P. Gelin, A.A. Franco, “Mechanistic Investigation of the Pt-Based Nanocatalysts Structural Properties Impact on the Effectiveness of O2 Bleeding in CO Contaminated PEM Fuel Cell Anodes ”, oral presentation in the 219th Meeting of the American Electrochemical Society (ECS), (Montreal, Canada), May 1-6, 2011.
[COI-029] A.A. Franco, S. Escribano, R. Vincent, L. Guetaz, “Resolving the role of water transport on the competitive degradation mechanisms in a PEMFC MEA: a modeling approach”, oral presentation at the 61st Annual Meeting of the International Society of Electrochemistry (ISE), (Nice, France), September 26-October 1st, 2010.
[COI-028] A.A. Franco, K. Malek, “Degradation mechanisms in PEMFC: new insights from a mesostructural resolved kinetic modeling approach”, oral presentation at the 217th Meeting of the American Electrochemical Society (ECS) (Vancouver, Canada), April 25-30, 2010.
[COI-027] A.A. Franco, S.-K. Cheah, O. Lemaire, “Hysteresis phenomena in PEM Fuel Cells materials degradation: a multi-scale modelling viewpoint”, oral presentation at the 217th Meeting of the American Electrochemical Society (ECS) (Vancouver, Canada), April 25-30, 2010.
[COI-026] A.A. Franco, O. Lemaire, “Competitions and synergies between electrochemical aging mechanisms in PEM Fuel Cells”, oral presentation at the 217th Meeting of the American Electrochemical Society (ECS) (Vancouver, Canada), April 25-30, 2010.
[COI-025] A.A. Franco, “Nanostructured electrocatalysts degradation in PEM Fuel Cells: key role of the electrochemical interface in engineering practice”, oral presentation at the 216th Meeting of the American Electrochemical Society (ECS) (Vienna, Austria), October 4-9, 2009.
[COI-024] A.A. Franco, B. Barthe, O. Lemaire, “Mechanistic Investigations of NO2 Impact on ORR in PEM Fuel Cells: A Coupled Experimental and Multi-scale Modeling Approach”, oral presentation at the 216th Meeting of the American Electrochemical Society (ECS) (Vienna, Austria), October 4-9, 2009.
[COI-023] R. Coulon, W. Bessler, A.A. Franco, “Modeling chemical degradation of a polymer electrolyte membrane and its impact on fuel cell performance”, oral presentation at the 216th Meeting of the American Electrochemical Society (ECS) (Vienna, Austria), October 4-9, 2009.
[COI-022] M.A. Gabriel, T. Deutsch, A.A. Franco, “Fullerene-Based Materials as Catalysts for Fuel Cells”, oral presentation at the 216th Meeting of the American Electrochemical Society (ECS) (Vienna, Austria), October 4-9, 2009.
[COI-021] A. Kachmar, V. Vetere, P. Maldivi, V. Artero, A.A. Franco, “Bio-Inspired Materials for H2 Production and Oxidation: Multi-scale Mechanistic Modeling of the Electrocatalytic Processes on [Ni (PNP)2]2+ Complexes”, oral presentation at the 216th Meeting of the American Electrochemical Society (ECS) (Vienna, Austria), October 4-9, 2009.
[COI-020] A.A. Franco, B. Barthe, O. Lemaire, “Using anode CO contamination as a mitigation method of cathode carbon corrosion in PEMFC”, oral presentation at the 215th Meeting of the American Electrochemical Society (ECS) (San Francisco, USA), May 24-29, 2009.
[COI-019] A.A. Franco, S. Escribano, O. Lemaire, “Polymer electrolyte membrane degradation in fuel cells environments : interplaying with Pt and C nanomaterials aging mechanisms – A multiscale modeling viewpoint”, oral presentation at the 215th Meeting of the American Electrochemical Society (ECS) (San Francisco, USA), May 24-29, 2009.
[COI-018] A.A. Franco, S.K. Cheah, R. Ferreira de Morais, “Non-equilibrium Interfacial Electrochemical Phenomena in Aging PEM Fuel Cells: A New Theory for Multi-scale Simulation of Nano-structured Catalysts Degradation and Durability Prediction”, oral presentation at the 215th Meeting of the American Electrochemical Society (ECS) (San Francisco, USA), May 24-29, 2009.
[COI-017] M.A. Gabriel, T. Deutsch, A.A. Franco, “Modeling of electro-catalytic phenomena in fullerene-based nano-objects for PEFC applications”, oral presentation at the 6th Symposium on Fuel Cell Modeling and Experimental Validation (MODVAL 6) (Karlsruhe, Germany), March 25-26, 2009.
[COI-016] P. Fugier, A. A. Franco, S. Passot, E. Billy, S. Mailley, L. Guetaz, N. Guillet, “PtxCoy catalysts for PEFC applications: new understanding on the impact of particles nano-structure on performance degradation”, oral presentation at the Fundamentals and Developments of Fuel Cells Conference (Nancy, France), December 10-12, 2008.
[COI-015] A.A. Franco, S. Passot, N. Guillet, L. Guetaz, B. Barthe, M. Guinard, M. Gerard, O. Lemaire, “Synergies between ageing mechanisms in PEFC environments: new insights from a multi-scale/multi-physics modeling investigation and experimental validation”, oral presentation at the Fundamentals and Developments of Fuel Cells Conference (Nancy, France), December 10-12, 2008.
[COI-014] A.A. Franco, “Synergies Between Ageing Mechanisms in PEFC Environments: New Insights from a Multi-Scale/Multi-Physics Modeling Viewpoint”, oral presentation at the 2nd EuChems Chemistry Congress (Torino, Italy), September 16-20, 2008.
[COI-013] A.A. Franco, S. Passot, E. Billy, S. Mailley, L. Guetaz, N. Guillet, P. Fugier, “Degradation of nano-structured PtxCoy catalysts in PEFC: new insights from a multi-scale modeling approach”, oral presentation at the 59th Annual Meeting of the International Society of Electrochemistry (ISE) (Seville, Spain), September 7-12, 2008.
[COI-012] A.A. Franco, S. Passot, M. Guinard, M. Gerard, “Coupling of ageing mechanisms in PEFC environments: new insights from a multi-scale modeling investigation”, oral presentation at the 59th Annual Meeting of the International Society of Electrochemistry (ISE) (Seville, Spain), September 7-12, 2008.
[COI-011] O. Lemaire, A. A. Franco, M. Guinard, B. Barthe, N. Guillet, “PEFC anode long-term CO contamination impact on intrinsic catalyst and C-support ageing mechanisms: new advances on durability understanding”, oral presentation at the 59th Annual Meeting of the International Society of Electrochemistry (ISE) (Seville, Spain), September 7-12, 2008.
[COI-010] A.A. Franco, “Solid state physics in Fuel Cells Electrochemistry: theory and experiments”, oral presentation at the V France-Spain Conference on Solid State Physicochemistry (Clermont-Ferrand, France), April 2-4, 2008.
[COI-009] A.A. Franco, S. Passot, P. Fugier, “Transient multi-scale modeling of PtxCoy catalysts degradation in PEFC environments”, oral presentation at the 213th Electrochemical Society Meeting (Phoenix, USA), May 18-23, 2008.
[COI-008] A.A. Franco, M. Gerard, “Transient model of carbon catalyst-support corrosion in a PEFC: multi-scale coupling with Pt electro-catalysis and impact on performance degradation”, oral presentation at the 213th Electrochemical Society Meeting (Phoenix, USA), May 18-23, 2008.
[COI-007] A.A. Franco, “Coupled aging mechanisms in PEFC: a theoretical multi-scale viewpoint”, oral presentation at the CARISMA European Network Workshop: High Temperature Fuel Cells, and ageing mechanisms (Grenoble, France) July 5-6, 2007.
[COI-006] A.A. Franco, “Modeling the behavior of nano-structured electro-catalysis in PEFC environments: looking for activity/stability relationships”, oral presentation at the CARISMA European Network Workshop: “Catalysts for PEFC applications” (Paris, France), May 16 2007.
[COI-005] A.A. Franco, C. Jallut, B.M. Maschke, “A multi-scale Bond graph model of the electrochemical dynamics in a Polymer Electrolyte Fuel Cell”, oral presentation at the 17th International Symposium on Mathematical Theory of Networks and Systems (MTNS) (Kyoto, Japan), July 24-28, 2006.
[COI-004] A.A. Franco, M. Tembely, P. Schott, Christian Jallut, Bernhard Maschke, “A Multi-Scale Dynamic Mechanistic Model for Transient Analysis of PEFCs”, oral presentation in the World Hydrogen Energy Conference 16 (Lyon, France), June 13-16, 2006.
[COI-003] A.A. Franco, P. Schott, C. Jallut, and B. Maschke, “A multi-scale Bond Graph model of physico-chemical phenomena in a fuel cell”; oral presentation at the 5th MATHMOD Conference (Vienna, Austria), February 7-10, 2006.
[COI-002] A.A. Franco, P. Schott, C. Jallut, B. M. Maschke, ”A multi-scale dynamic mechanistic model for transient analysis of PEFC”; oral presentation at the 3rd European Fuel Cells Forum (Luzern, Switzerland), July 4–8, 2005.
[COI-001] A.A. Franco, P. Schott, C. Jallut, B.M. Maschke, “A multi-scale dynamic mechanistic model for transient analysis of electrochemical cells”; oral presentation at the 207th Meeting of the Electrochemical Society (Québec, Canada), May 15-20, 2005.
[CON-000] A.A. Franco, P. Schott, C. Jallut, B. Maschke; “A multi-scale dynamical model of a PEFC electrode”; oral presentation at the JDMACS Conference (Lyon, France), September 5-9, 2005.
+ other presentations at CEA, CNRS, GDR workshops on fuel cells and nanoparticles, Société Française de Chimie, Société Française de Physique (2003-2009).

matches: V. V. V. V. V. V. V.


Messrs. Wm. H. Pemberton, of Olympia, Wash., and Clarence C. Dill, of Washington, D.C., for petitioner.
Messrs. John W. Davis and William C. Cannon, both of New York City, for respondent.
This suit was brought to enjoin petitioner, the proprietor of a radio station at Bellingham, Wash., from appropriating, using, or disseminating news gathered by the respondent or its members during the period such news has commercial value to respondent and its members. The prayers were for temporary and permanent relief. The District Court directed the petitioner to show cause why an injunction should not be granted and entered a temporary restraining order.
The respondent has representatives in every important capital and city in the world and has reciprocal arrangements for interchange of news with many important agencies in foreign countries; has more than twelve hundred members, each owning or representing a daily newspaper, each supplying respondent, as required by the by-laws, with the news gathered locally by the newspaper he represents; the cost of respondent's transactions, amounting yearly to many millions of dollars, is equitably divided among the members; the association's service to members is of financial and business importance to them, due to its promptness, accuracy, and impartiality; the by-laws require that the news furnished shall remain confidential until publication has been fully accomplished by all members.
The petitioner conducts a radio station at Bellingham, Wash., and, as part of its daily broadcast, sends out, three times a day, morning, noon, and evening, what is styled 'The Newspaper of the Air' in which petitioner announces what it claims to be, and what usually is, the leading and most interesting news of the day. The Bellingham Herald, published at Bellingham, is a member of the association and, under the by-laws, the respondent is entitled to be furnished by the Herald with all the news from the territory served by that paper; the Seattle Post Intelligencer and the Seattle Daily Times are published at Seattle, Wash., and are represented by memberships in the association which has the same rights to news gathered by those papers.
The petitioner broadcasts news as part of its business and, by so doing, enhances the profits obtained from advertising broadcasts; the newspapers affiliated with the respondent derive a large portion of their revenues from the sale of advertising space, the value of which depends in great measure upon the freshness and interest of the news furnished by them. The petitioner, in the conduct of its station, has become, and is, a competitor of respondent and its members in the obtaining and early distribution of news, for the purpose of popularizing advertising.
The petitioner has no organization of its own for gathering news, but adopts the practice of 'pirating' news gathered by the respondent and its members. This practice consists in procuring copies of the Herald, the Post Intelligencer, and the Daily Times and broadcasting parts, or all, of items therein published, whether gathered by these newspapers or received by them from the respondent, the repetition being sometimes verbatim and sometimes a rearrangement of the wording. The copies of the three newspapers do not reach their subscribers for some time (in some cases as much as twenty-four hours) after publication; whereas petitioner, promptly obtaining the papers, is able to pirate and broadcast their contents and to anticipate the receipt of the news by the newspapers' subscribers. This practice constitutes unfair competition with the respondent; wrongfully deprives the respondent of the just benefits of its labors and expenditures; similar injures respondent's members; and prejudices the respondent with its members.
The petitioner, though repeatedly requested to desist from the practice, has refused so to do, although neither the association nor any member has granted permission to make use of the news gathered by them; and the continuance by the petitioner of its practice will increasingly cause irreparable injury and damage to the respondent because the effort and expenditures to gather and obtain news will be rendered largely without reward or value so far as concerns the territory served by petitioner's station.
Prior to the return day of the order to show cause why a temporary injunction should not issue, the petitioner filed a motion to dismiss, assigning the following grounds, amongst others: the bill fails to recite facts entitling the plaintiff to the relief prayed and is without equity; there is a nonjoinder of parties plaintiff since the bill discloses that the Bellingham Herald, Seattle Post Intelligencer, and Seattle Daily Times are necessary parties; the court is without jurisdiction because the matter in controversy does not exceed $3,000.00, exclusive of interest and costs, and an inspection of the allegations of the complaint shows the complainant cannot recover any amount in excess of $3,000.00 or any other amount and the sum named in the ad damnum clause of the complaint is not a true statement of complainant's damages and is not alleged in good faith, the facts being that the amount paid to the complainant for furnishing the Associated Press news in the city of Bellingham, to any of its members, is fixed and determined by the size of the city's population, and is not affected by any other condition and complainant has not lost any amount and never will lose any amount by reason of this controversy, and defendant is not a competitor of complainant in any sense of the word; the Bellingham Herald is the real party in interest and the Associated Press has no interest in the cause.
Affidavits were presented in support of and in opposition to the granting of an injunction, and counsel were heard upon the prayer for preliminary injunction and upon the motion to dismiss. The court found the allegations as to citizenship of the parties were true; found 'the amount in controversy herein, by reason of defendant's motion to dismiss, must be construed to be in excess of $3,000.00, exclusive of interest and costs'; found the facts as to the business and conduct of the parties substantially as alleged in the complaint; but found that the petitioner had not interfered with the normal operation of respondent's business or diverted any of respondent's profit.
Although the decision with respect to the amount in controversy was assigned as error in this court, the parties have in the main directed their arguments to the merits; the respondent insisting that International News Service v. Associated Press fully sustains the decree below; the petitioner contending that cause may be distinguished from the one there adjudicated, or, if not, that decision should be modified. We have no occasion to consider the soundness of these conflicting contentions, for we hold that in the circumstances the respondent had the burden of showing that the case was within the District Court's jurisdiction, and failed to carry it.
The bill seeks redress for damage to the respondent's business and for damage to the business of some or all of its members. The right for which the suit seeks protection is, therefore, the right to conduct those enterprises free of the alleged unlawful interference by the petitioner. No facts are pleaded which tend to show the value of that right. The complaint contains nothing to the purpose save the general statement that the damage to which the respondent is being subjected is in excess of three thousand dollars and the amount involved is in excess of that sum. Such a formal allegation is sufficient, unless the bill contains others which qualify or detract from it in such measure that when all are considered together it cannot fairly be said that jurisdiction appears on the face of the complaint, in which case the suit should be dismissed by the court sua sponte3 or upon the defendant's motion.4 In this case the formal allegation is not reenforced or strengthened by other portions of the complaint; neither is it neutralized or weakened by qualifying or detracting allegations. In effect it stands alone. Therefore the court would not have been bound to dismiss upon a motion based solely on alleged insufficient pleading of the amount in controversy; though it might, of its own motion, have entered upon an inquiry to ascertain whether the cause was one over which it had jurisdiction.5 But where the allegations as to the amount in controversy are challenged by the defendant in an appropriate manner, the plaintiff must support them by competent proof.6 The petitioner's motion was an appropriate method of challenging the jurisdictional allegations of the complaint. It did not operate merely as a demurrer, for it did not assume the truth of the bill's averments and assert that in spite of their truth the complaint failed to state a case within the court's jurisdiction. On the contrary the motion traversed the truth of the allegations as to amount in controversy and in support of the denial recited facts dehors the complaint. This could have been done by answer but the time for answer had not arrived when the rule to show cause was issued and petitioner was faced with the possibility of an injunction. The motion required the trial court to inquire as to its jurisdiction before considering the merits of the prayer for preliminary injunction. And in such inquiry complainant had the burden of proof.7 The only attempt to meet that burden is a reply affidavit filed on behalf of respondent, wherein it is deposed 'that the payments made by newspapers for said news sold to them by complainant in the territory served by said radio station is upwards of $8,000 per month, which is being imperilled and jeopardized by the acts of defendant * * * by its unlawful and wrongful appropriation of complainant's news, and said sum greatly exceeds the sum of Three Thousand Dollars, exclusive of interest and costs, and complainant is in danger of losing said memberships and payments if defendant's practices in respect to pirating said news is not enjoined.' This deposition must be read in connection with the statement in the bill that the respondent makes no profit from furnishing news to its members but equitably divides the expense amongst them. The association cannot therefore lose the $8,000 in question. If the three newspapers in the affected territory cease to pay the sum, they will save it, not lose it, and, as to any other damage they may suffer from petitioner's competition, the affiant is silent. Assuming, without deciding, that in the circumstances disclosed the respondent has standing to maintain a suit to redress or prevent damage caused its members by petitioner's conduct, the allegation of possible damage to them is wholly inadequate, because the asserted danger of loss of members is a mere conclusion unsupported by even a suggestion that withdrawal has been threatened by any newspaper, and no intimation is given of the character or extent of the damage they would suffer by such withdrawal. The respondent having failed to support the allegations as to amount in controversy the District Court should have dismissed the bill.
The suggestion is made in the respondent's argument, and in the opinion below, that, as the allegations in the International News Service Case, supra, were substantially like those of the bill now before us, this court must have been of opinion that the District Court had jurisdiction in the International Case or it would not have considered the merits. But in that case the answer did not challenge the jurisdiction, there was no assignment of error raising the question and no argument on the subject was presented to this court. 'The most that can be said is that the point was in the cases if any one had seen fit to raise it. Questions which merely lurk in the record, neither brought to the attention of the court nor ruled upon, are not to be considered as having been so decided as to constitute precedents.' Webster v. Fall, 266 U.S. 507, 511, 45 S.Ct. 148, 149, 69 L.Ed. 411.
The Circuit Court of Appeals sustained the District Court's jurisdiction on the ground that the finding upon that point was not without support, and the appellate tribunal could not say it was wrong, in view of the magnitude of the respondent's operations and expenditures. As pointed out in McNutt v. General Motors, etc., Corporation, supra, 298 U.S. 178, at pages 180 and 181, 56 S.Ct. 780, 781, 80 L.Ed. 1135, these factors are irrelevant upon the issue of the value of the right for which protection is here sought.
Since the allegation as to amount in controversy was challenged in appropriate manner, and no sufficient evidence was offered in support thereof, the bill should have been dismissed. McNutt v. General Motors, etc., Corp., supra, 298 U.S. 178, at page 190, 56 S.Ct. 780, 785, 80 L.Ed. 1135. The Circuit Court of Appeals had jurisdiction of the appeal and as the District Court lacked jurisdiction its decree dismissing the bill should have been affirmed on that ground.
Mansfield, C. & L.M. Ry. Co. v. Swan, 111 U.S. 379, 382, 383, 4 S.Ct. 510, 28 L.Ed. 462; Bucyrus Co. v. McArthur (D.C.) 219 F. 266.
Susquehanna & W.V.R. & Coal Co. v. Blatchford, 11 Wall. 172, 20 L.Ed. 179; Ladew v. Tennessee Copper Co. (C.C.) 179 F. 245, affirmed 218 U.S. 357, 31 S.Ct. 81, 54 L.Ed. 1069.
Act of March 3, 1875, § 5, c. 137, 18 Stat. 470, 472, Jud.Code, § 37, 28 U.S.C. § 80 (28 U.S.C.A. § 80); McNutt v. General Motors, etc., Corp., 298 U.S. 178, 182, 184, 56 S.Ct. 780, 782, 783, 80 L.Ed. 1135.
McNutt v. General Motors, etc., Corp., supra, 298 U.S. 178, at page 189, 56 S.Ct. 780, 785, 80 L.Ed. 1135.


text:
The chapter is prepared by Olena Ashchenko, an expert of Kharkiv human rights protection group.
During 2015 there were no significant changes made to the national legislation regulating the procedure of imprisonment.
In particular, among such changes it is possible to single out only changes to art.208 of the Code of Criminal Procedure, which was supplemented with part three, according to which an authorized official has a right to seize a person suspected of committing a crime, in case there are good reasons to think that the person suspected of committing serious or particularly serious corruption-related crime related to the competence of the National Anti-Corruption Bureau of Ukraine is capable of escaping for the purposes of avoiding criminal responsibility.
However, such change raises concerns as it makes restrictions of guarantees of the rights to liberty for some citizens only in case of apprehension of committing crimes related to acts of corruption.
A negative moment is validity continuation of a norm of art.615 of the Code of Criminal Procedure of Ukraine, which allows the prosecutor performing functions of an investigating judge for the period of 30 days, in particular, seize people. We paid attention to this problem in the previous Annual report of 2014, however, it still remains unsolved nowadays. In other words, for the period of one year and a half there is a norm in Ukraine, which allows imprisonment for 30 days without any judicial review of legality of it, which is a serious violation of norms of the Constitution of Ukraine (art.29), European Convention on Human Rights and International Covenant on Civil and Political Rights.
From the beginning of 2015 the European court of Human Rights (hereinafter referred to as ECtHR) made eight decisions about Ukraine violating different aspects of rights to liberty.
Violation of “reasonable apprehension” principle at the time of selecting a preventative measure.
In the case Malyk v. Ukraine ECtHR admitted violations of Art. 5 § 1 (с) of the Convention due to violation of “reasonable apprehension” principle by the national authorities, observance of which was repeatedly insisted by ECtHR in its previous decisions. In particular, the Court pointed out that despite the fact that national courts will conduct a further review of witness statement an investigator used in his primary order on selecting a preventative measure for an applicant in the form of keeping in custody, the national authorities at the first stage didn’t have any grounds to think that apprehension was reasonable.
In the case Kotiy v. Ukraine ECtHR also stated that the national authorities making a decision on seizing an applicant didn’t have sufficient grounds to think that such seizure was reasonable in the context of actual circumstances of the case. The court paid attention to the circumstance that even though the applicant was put on the wanted list, he wasn’t actually hiding from the investigation, but continued running a business in Ukraine and Germany.
In the case Orlovskiy v. Ukraine the Court deemed illegal keeping an applicant in custody without any proceeding decision on continuation of the period for keeping in custody for almost one month after the end of the pretrial investigation and taking the criminal case to court. The court pointed out that such problem is systematic in Ukraine, as was mentioned in the previous draft decision “Kharchenko v. Ukraine”.
The same violation of Art.5 § 1 of the Convention was found by the Court in the case of Temchenko v. Ukraine.
In the case Gal v. Ukraine ECtHR admitted violation of Art.5 § 1 and Art.5 § 3 of the Convention due to 10 minute exceeding of maximum period between seizure of an applicant and bringing him to the judge. The period established at that moment by the legislation was 72 hours. In particular, ECtHR stated that it was an obligation of the national authorities to provide judicial review of the seizure within the time limit established by the law. Violation of this norm tells about abuse of power and illegal seizure.
In the case Ruslan Yakovenko v. Ukraine ECtHR admitted violation of the right of an applicant provided by Art.5 § 1 (а) of the Convention due to the fact that the first-instance court upheld a preventative measure in the form of keeping in custody up to the moment the sentence became effective, despite the fact that the applicant has actually discharged the term of sentence during the pretrial investigation and case hearing by the first-instance court. The Court pointed out that the national court was supposed to consider an opportunity to impose an alternative preventative measure to the applicant, which would not be related to imprisonment. The court also found violation of Art. 2 of the Protocol 7 of the Convention, due to the fact that the applicant was actually deprived of an opportunity to appeal against a judgement because there was a risk that he would be in custody up to the end of case hearing by the Court of Appeal.
In the case Zaichenko v. Ukraine No.2 ECtHR admitted violation of Art.5 § 1 (е) of the Convention due to illegal hospitalization of an applicant to psychiatric facility in order to conduct psychiatric examination in the administrative case. The court also paid attention to the existing legislative loophole concerning separate regulation of psychiatric examination in administrative cases.
In the case Belozorov v. Russia and Ukraine there were violations of Art.5 § 1 (f) of the Convention due to illegal seizure of an applicant at the territory of Ukraine and his further criminal extradition to the Russian Federation with the lack of the formal request from the government of the latter, violation of Art.80 of the Convention on legal assistance and legal relations in civilm family and criminal case (Minsk Convention).
Duration of keeping in custody without the final court decision.
In the above-mentioned case Orlovskiy v. Ukraine ECtHR found violation of Art. 5 § 3 of the Convention due to long-term (over five years) keeping an applicant in custody in the process of criminal proceedings. In particular, ECtHR pointed out the systematic problem, when national courts go on keeping applicant in custody only on the grounds of the fact that they are accused of committing serious crimes, which is not a sufficient justification of long-term imprisonment.
Similar violations were found in the case Temchenko v. Ukraine, where an applicant was kept in custody during 1 year and 8 months. The Court took into account the age and health condition of the applicant, and the fact that he was accused in the non-violent crime. That’s why such period of keeping in custody was found excessive.
Brief review of the practice of national courts regarding selection of a preventative measure in the form of keeping in custody.
The general tendency of the practice of national courts remains to be the fact that courts keep making decisions without appropriate grounds for their choice and specific motives. The only reason for selecting such preventative measure is often the fact that “risks haven’t changed” during the time from the last extension of period of keeping in custody.
One of the most popular reasons courts use to substantiate the need for keeping in custody is also accusation in committing the serious crime.
Another ground courts use for extending the period of keeping in custody is the fact that the accused may continue his criminal activity or interfere with the criminal proceeding. Decision of Uzhgorod Municipal District Court of Zakarpattia region dd.13.03.2015; p. 2 art.307 of the Criminal Code of Ukraine: “…the accused may continue his criminal activity, fail to be present in the court and interfere with the criminal proceeding”. In its decision the court didn’t mention the reasons for making conclusions about possible continuation of criminal activity by the accused etc. Any circumstance proving such suggestion of the court wasn’t specified.
It stands to mention about the usage of a preventative measure in the form of keeping in custody regarding suspects, who live at the territory beyond the control of Ukraine.
“…The investigation substantiated the fact indicating the risks provided by art. 177 of the Code of Criminal Procedure of Ukraine that the suspect may hide from the authorities of pretrial investigation and the court, has illegal effect on witnesses… and …, …, and commit another criminal offense.
The above-mentioned circumstances are proved by the fact that the suspect is registered in the city of Luhansk, which nowadays is not under control of governmental authorities of Ukraine, there are no permanent social conditions at the territory of pretrial investigation…”.
Thus, all people, who lost their places of living as a result of events beyond their control are in a position when no other preventative measure may be used against them, except for keeping in custody, since they can’t prove their social relations in a different manner than existence of registration.
As for courts of appeal, it can be stated than courts refuse to revise decisions of the first-instance courts on appeal, separating the notion “selection” and “usage” of a preventative measure contained in the Code of Criminal Procedure of 2012.
In particular, most part of decisions on selecting a preventative measure in the form of keeping in custody reviewed by the Superior Specialized Civil and Criminal Court of Ukraine is related to a so called “criminal prosecution in absentia” – a novel of a penal legislation of Ukraine, introduced in our legislation in 2015. It should be added that supplements to the Code of Criminal Procedure of Ukraine in the form of provisions allowing criminal proceedings against people on an international wanted list provided an opportunity for courts of appeal to manipulate notions “selection” and “usage” of a preventative measure, which are identical in their meaning.
About people, who are illegally held by representatives of so called “DPR” and “LPR”.
According to information given by the counsellor of the Security Service of Ukraine Chief Executive, representatives of self-declared DPR and LPR continue holding about 148 people, including, civil people. At the same time, representatives of illegally armed groups state that as of today 45 Ukrainian prisoners of war are held at the territory of so called DPR and LPR.
However, as of today destiny of people captured in DPR and LPR remains undetermined.
About people in custody on grounds of an open criminal proceeding.
One of the most topical problems related to violation of the right to liberty is unsettled issue with destiny of people in custody in a detention facility due to existence of criminal proceedings initiated before representative of illegally armed groups started invading administrative building and carrying out anti-terror operations.
In particular, due to lack of access to materials of criminal proceedings in court at the territories beyond the control of Ukrainian government, a great number of people are still in custody with no formal decision on extension of the period of keeping in custody and any judicial review of the rationale for further imprisonment.
It is still unclear why representatives of Ukrainian authorities didn’t take necessary measures to evacuate case materials from courts of Donetsk and Luhansk regions in April-May 2014, when illegally armed groups started invading buildings of governmental authorities and law enforcement bodies. However, at that time some courts continued their operation and made proceeding decisions, including decisions on extension of the period of keeping in custody. The validity period of these decisions soon expired, and new decision haven’t been made.
Violation of the right to liberty in reports of the U.N. High Commissioner for Human Rights.
Office of High Commissioner for Human Rights (hereinafter referred to as OHCHR) made a report about the condition of human rights for the period from May 16 to August 15 of the year 2015, which said about violation of the right to liberty and personal inviolability of Ukraine during events in the East of Ukraine from illegally armed groups and security officials.
In particular, the report stated: “The estimated number of people held by armed groups are constantly changing, mainly, because of variable model of constant kidnapping, seizure and dismissal. According to the Security Service of Ukraine, as of 15th of August 172 people were held by representatives of “Donetsk People’s Republic” and “Luhansk People’s Republic”. This figure, however, refers only to people, whose location was determined by the Government of Ukraine and who were sent dismissal requests.
A range of simultaneous dismissals (so called “exchanges”) happed in the process of a reporting period. This process was short of transparency and it didn’t result in the appreciable quantity of dismissals. OHCHR keeps standing for exchange of ” hostages and illegally detained people” based on “everyone for everyone” principle, as it is provided in the package of measures for implementation of Minsk agreements dd.12.02.2015”.
OHCHR also pays attention to illegal seizures, carried out by representatives of law enforcement bodies and Security Service of Ukraine. In particular, paragraph 49 of the report states: “OHCHR keeps noticing constant cases of illegal detentions and detentions together with isolation from the outside world by law enforcement bodies of Ukraine (mainly, on the part of the Security Service of Ukraine), military and paramilitary groups (first of all, by former voluntary battalions, which are currently officially included in the Armed Forces of Ukraine, National Guards and Police). These incidents also followed by tortures and abusive treatment, as well as violation of procedural rights. OHCHR keeps standing for appropriate and timely investigation of each recorded incident and legal prosecution of guilty people. OHCHR also calls the Security Service of Ukraine, the Ministry of Internal Affairs and the Ministry of Defence to bring an end to such practice and improve operation of their employees in the sphere of human rights”.
To the Supreme Court of Ukraine: to adopt a resolution about compliance with legislation when detaining a person, using a preventative measure in the form of keeping in custody and extending periods for keeping in custody, with consideration of the practice of ECtHR, including in criminal cases according to the Code of Criminal Procedure of Ukraine of 1960.
Make changes to Art.331 of the Code of Criminal Procedure of Ukraine, which will oblige courts to review the rationale for extending the period for keeping the accused in custody immediately after the receipt of the criminal information from the prosecutor.
Take necessary measures to prepare investigating judges making decisions on selection of preventative measures in the form of keeping in custody with the purpose to provide compliance with the guarantees of human rights, which are specified in the Code of Criminal Procedure and practice of the European Court of Human Rights.
Provide renewal of materials of criminal proceedings, which are stored in court at the territories beyond the control of the government authorities, with the purpose to conduct court hearing of cases within a reasonable period of time and restore the violated rights to liberty of people in custody without a court decision.
Conduct appropriate investigation of incidents of illegal imprisonment at the territory of conducting anti-terror operations, which are carried out by representatives of illegally armed groups and employees of law enforcement bodies and the military of Ukraine.

matches:
art.208
art.615
v.
Art. 5
§ 1
v.
v.
v.
Art.5
§ 1
v.
v.
Art.5
§ 1
Art.5
§ 3
v.
Art.5
§ 1
Art. 2
v.
Art.5
§ 1
v.
Art.5
§ 1
Art.80
v.
Art. 5
§ 3
v.
art.307
art. 177
Art.331