April 2015

Patent reform revived in Senate

Senate leaders introduced new legislation that would crack down on “patent trolls,” reviving a push for reform that stalled in the upper chamber in 2014. The legislation is aimed at combating what industry groups say is growing abuse of the legal system, with “trolls” buying up patents solely for the purpose of extracting financial settlements. With Republicans now in control of the House and Senate, advocates are hopeful that the legislation can make it to President Barack Obama, who has urged lawmakers to take action on the issue. Sen. Charles Schumer (D-NY), who was involved in negotiations over the new legislation, said the bill “shifts the legal burden back onto those who would abuse the patent system in order to make a quick buck.” "I’m hopeful we can move quickly and in a bipartisan way to get this bill passed in committee and on the Senate floor this summer," he said. A hearing on the bill is already in the works.

The negotiations over patent reform date back to 2014. Apparently, while the new Senate legislation contains provisions that are similar to a bill working through the House, it also contains key changes, according to a person familiar with the bill. The proposal would establish clear pleading standards in court and would limit some early discovery, which can be used to run up the cost of litigation. A new way to limit discovery while early motions are resolved was crafted by senators in April, the source said. The bill includes a provision on “fee shifting,” which refers to requiring the losing party in a lawsuit to pay back the winner’s legal fees. While the House version of the bill would require the payback unless a patent lawsuit is proven legitimate, the Senate version removes the fee shifting presumption, and would only award fees if the winner can prove the lawsuit was not “objectively reasonable.” The Senate bill would also change how courts could go after the parent company of shell organizations that sometimes file the frivolous suits and are not able to pay up.

High court: States may ban judicial candidates from personal fundraising

Chief Justice John G. Roberts Jr. joined with the Supreme Court’s liberals in ruling that states may forbid judicial candidates from personally soliciting campaign contributions. Rejecting the charge that the restrictions violate the First Amendment’s guarantee of free speech, the 5-to-4 decision upheld a Florida law that is similar to others in 29 states that elect judges but restrict their role in campaign fundraising. “Judges are not politicians, even when they come to the bench by way of the ballot,” Chief Justice Roberts wrote. “And a state’s decision to elect its judiciary does not compel it to treat judicial candidates like campaigners for political office.”

The result was exceptional in two ways. It separated Chief Justice Roberts from his usual colleagues on the right, and it was a rare win for advocates of campaign finance restrictions after a nearly unbroken string of rulings from the high court that the First Amendment trumps such restrictions. The difference, Roberts said, is that the public expects judges to be fair and disinterested players, while other elected officials are free to follow the wishes of those who support them. “In deciding cases, a judge is not to follow the preferences of his supporters, or provide any special consideration to his campaign donors,” Roberts wrote, adding that “therefore, our precedents applying the First Amendment to political elections have little bearing on the issues here.”

Does getting Internet access make people better citizens? Maybe not.

[Commentary] What would happen if someone who did not have Internet access suddenly got it? Would they become more interested in politics, learn more about it and even feel more able to influence the political world? It’s certainly plausible that the answer is yes. The Internet would seem to put lots of information about politics at your fingertips. And some academic research suggests that the Internet can make us better “digital citizens” -- despite the possibility that people might simply bypass online political content in favor of entertainment like sports. In our new study, we come to a less optimistic conclusion.

We based this study on a rare opportunity: to observe directly what happens when people are given Internet access for the first time. We compared two groups of people who received Internet access, and found that, as of September 2008, the group that had had Internet access for nine months was not more interested in or knowledgeable about politics, compared to the group that had not yet received access. We also followed both groups all the way to June 2010. Again, very little changed. Neither group became more interested in or knowledgeable about politics. Neither group came to feel more capable of influencing politics. Why do these findings differ from some previous research? One possibility is just that typical survey data makes it difficult to tell whether any correlation between Internet usage and political attitudes suggests actual causation. Perhaps people who are already interested in politics tend to look for political information online. Another possibility is that Internet usage may simply substitute for offline sources of political information. The third possibility is information overload. The complexity and volume of content on the Internet make actually learning difficult -- at least about politics. This isn’t to suggest that the Internet could never make us better citizens. But we would argue for very qualified expectations about how much the Internet can increase how much we care or know about politics.

[Sean Richey is an associate professor of political science and Junyan Zhu is a doctoral student in the Department of Political Science at Georgia State University]

Rep Eshoo Slams FCC Reform Bills

Rep Anna Eshoo (D-CA) will take aim at a trio of Republican Federal Communications Commission process reform bills that are the subject of an oversight hearing in the Communications Subcommittee on April 30. But she does more than just throw stones, offering some bricks to build better process. That is according to a copy of her opening statement for the hearing. "Collectively, these bills will tie the agency in knots by undermining established Administrative Procedure Act (APA) precedents, establishing a new FCC-specific regime that jeopardizes regulatory certainty, and opens the door to legal challenges on every Commission action," she plans to tell her colleagues. "By breaking the back of the delegated authority process, the legislation will encourage wholesale, last-minute lobbying to game the system, increasing the time and litigation related to FCC processes."

FCC Still Mulling Best Title II Challenge Venue

The Federal Communications Commission has yet to decide whether to seek a second lottery to decide which federal appeals court will hear an industry challenge to its Feb. 26 order reclassifying Internet service providers as telecommunications under Title II common carrier regulations. The Judicial Panel on Multidistrict Litigation, which conducts a lottery when challenges are filed in more than one circuit, has already chosen the DC Circuit. But there could be a second lottery if those first suits, which were filed before the FCC published the order April 13 -- are determined to have been premature, which even the filers -- USTelecom, Alamo -- concede was likely the case.

Suits are not supposed to be filed until an order is published, but USTelecom and Alamo filed early in case the declaratory ruling portion of the Feb. 26 decision counted as a final decision -- it required no vote -- and triggered the 10-day window for getting in a circuit lottery. A second round of suits was filed after April 13. Those petitions also included different circuits, including the Third Circuit. FCC lawyers are still deciding whether to seek a new lottery for those or stick with the DC Circuit. “The Commission will address the question at the appropriate time," said an FCC spokesperson. The FCC is supposed to signal the court fairly expeditiously after it has been notified of those petitions, but has no hard and fast timetable, according to an FCC source.

FCC Announces that Applications for AWS-3 Licenses in Certain Bands are Accepted for Filing

On January 29, 2015, the Federal Communications Commission completed an auction of Advanced Wireless Service licenses in the 1695-1710 MHz, and 1755-1780 MHz and 2155-2180 MHz bands. The long-form applications for AWS-3 licenses have been found to be acceptable for filing.

EOBC: TV Spectrum Opening Price Regime Is Unlawful

The Expanding Opportunities for Broadcasters Coalition warned the Federal Communications Commission that its proposed formula for setting starting prices for TV station spectrum in the incentive auction is illegal. That is according to an ex parte filing of a meeting between EOBC executive director Preston Padden and top FCC staffers with the offices of FCC Commissioners Jessica Rosenworcel and Ajit Pai. According to written talking points for the meeting, Padden said that formula will result in "starting prices hundreds of millions of dollars apart for stations with identical impact on clearing spectrum." He used the example of a station in Rockford (IL) that will block more viewers and create more interference in the Chicago market than a station in Chicago whose opening bid is $334 million higher.

He gave the FCC a list of 1,100 stations also undervalued according to the FCC formula. He said that given the FCC's statement in its Report and Order that “a station with a high potential for interference will be offered a price that is higher than a station with less potential for interference to other stations," the formula "unlawfully departs from that commitment" to value a station on its clearing impact. Padden has long argued that the only relevant factor is a station's effect on spectrum clearing. EOBC represents stations interested in giving up spectrum at the right price, which Padden suggests means a starting price higher than the FCC has suggested.

Legislators Introduce Student Digital Privacy Bill

Months after President Barack Obama proposed to strengthen digital privacy protection for students, two legislators, Reps Jared Polis (D-CO) and Luke Messer (R-IN) introduced a comprehensive bill in Congress intended to accomplish that goal. Titled the Student Digital Privacy and Parental Rights Act of 2015, the bill would prohibit operators of websites, apps and other online services for kindergartners through 12th graders from knowingly selling students’ personal information to third parties; from using or disclosing students’ personal information to tailor advertising to them; and from creating personal profiles of students unless it is for a school-related purpose.

The bill would give parents access to information held about their children and allow them to correct it; to delete information about their children that schools do not need to retain; and to download any material their children have created. It would allow operators of services to use and disclose aggregated student information without personal identifiers to improve their own educational products or market their effectiveness. And it would allow companies to sell or disclose student information as part of a merger or acquisition, provided the successor company continued to be subject to the restrictions under which the data was originally collected. The bill was modeled in part on a new student online privacy law in California.

State of the News Media 2015

Call it a mobile majority. At the start of 2015, 39 of the top 50 digital news websites have more traffic to their sites and associated applications coming from mobile devices than from desktop computers, according to Pew Research Center’s analysis of comScore data. At the same time, though, desktop visitors to these sites tend to spend more time per visit than do mobile visitors. For half of these top 50 news sites -- which include legacy print, cable, network, international and public broadcasting outlets as well as digital-only entities -- visitors from desktops stay longer than those coming through mobile. The reverse is true for only 10 of the sites, while for 15 sites the time spent is roughly equal. In tandem with the growth of mobile has been the further rise of the social Web, where the flow of information embodies a whole new dynamic.

Some of our 2014 research revealed that nearly half of Web-using adults report getting news about politics and government in the past week on Facebook alone, a platform where influence is driven to a strong degree by friends and algorithms. Even as mobile and social news habits evolve, legacy platforms have by no means been abandoned, though some are faring better than others. Local TV continues to capture broadcast viewers, with slight increases for evening (3 percent) and morning (2 percent) newscasts and larger ones for early morning and midday in 2014. Network television news saw a second straight year of audience growth (5 percent in evening and 2 percent in morning), for a combined average evening viewership of roughly 24 million. Cable news, on the other hand, had another rough year, with prime-time median viewership down 8 percent across the three channels -- Fox News, MSNBC and CNN. Fox News fared the best, but still saw a 1 percent decline year over year. And newspapers, after an unusual year of small gains in 2013, saw both daily and Sunday circulation fall another 3 percent in 2014, declines that were felt across papers of all sizes. Newspaper weekday circulation has now fallen 19 percent since 2004.

Freedom of the Press 2015: Harsh Laws and Violence Drive Global Decline

Conditions for the media deteriorated sharply in 2014 to reach their lowest point in more than 10 years, as journalists around the world encountered more restrictions from governments, militants, criminals, and media owners, according to Freedom of the Press 2015, released today by Freedom House. The report found that the main factors driving the decline were the passage and use of restrictive laws against the media -- often on national security grounds -- and limits on the ability of local and foreign journalists to report freely within a given country, or even to reach it. In a time of seemingly unlimited access to information and new methods of content delivery, more and more areas of the world are becoming virtually inaccessible to journalists. Key Global Findings:

Global press freedom declined in 2014 to its lowest point in more than 10 years. The rate of decline also accelerated, with the global average score suffering its largest one-year drop in a decade.
Of the 199 countries and territories assessed during 2014, a total of 63 (32 percent) were rated Free, 71 (36 percent) Partly Free, and 65 (32 percent) Not Free.
Only one in seven -- about 14 percent -- of the world’s inhabitants live in countries with a Free press.
All regions except sub-Saharan Africa, whose average score improved slightly, showed declines. Eurasia suffered the largest drop.
Several countries with histories of more democratic practices have experienced serious deterioration over the past five years. Greece has fallen by 21 points on a 100-point scale since 2010, as existing structural problems were exacerbated by the economic crisis and related political pressures. Large five-year drops were also recorded in Thailand (13 points), Ecuador (12), Turkey (11), Hong Kong (9), Honduras (7), Hungary (7), and Serbia (7).
The world’s 10 worst-rated countries and territories were Belarus, Crimea, Cuba, Equatorial Guinea, Eritrea, Iran, North Korea, Syria, Turkmenistan, and Uzbekistan. The Russian-occupied territory of Crimea was assessed separately for the first time in this edition.

Benton

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