[Federal Register Volume 76, Number 146 (Friday, July 29, 2011)]
[Notices]
[Pages 45616-45617]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-19183]
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INTERNATIONAL TRADE COMMISSION
[Investigation No. 337-TA-712]
Certain Digital Set-Top Boxes and Components Thereof; Notice of
Commission Determination Not To Review a Final Initial Determination;
Affirming-in-Part ALJ Order No. 33 Granting Summary Determination That
Complainant Satisfied the Economic Prong of the Domestic Industry
Requirement Under 19 U.S.C. 1337(a)(3); Schedule for Filing Written
Submissions on Remedy, the Public Interest, and Bonding
AGENCY: U.S. International Trade Commission.
ACTION: Notice.
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SUMMARY: Notice is hereby given that the U.S. International Trade
Commission (``the Commission'') has determined not to review the final
initial determination (``ID'') issued by the presiding administrative
law judge (``ALJ'') on May 20, 2011, in the above-captioned
investigation; the Commission has also determined to affirm-in-part ALJ
Order No. 33 granting summary determination that complainant satisfies
the economic prong of the domestic industry requirement.
FOR FURTHER INFORMATION CONTACT: Michael Liberman, Esq., Office of the
General Counsel, U.S. International Trade Commission, 500 E Street,
SW., Washington, DC 20436, telephone (202) 205-3116. Copies of non-
confidential documents filed in connection with this investigation are
or will be available for inspection during official business hours
(8:45 a.m. to 5:15 p.m.) in the Office of the Secretary, U.S.
International Trade Commission, 500 E Street, SW., Washington, DC
20436, telephone (202) 205-2000. General information concerning the
Commission may also be obtained by accessing its Internet server at
http://www.usitc.gov. The public record for this investigation may be
viewed on the Commission's electronic docket (EDIS) at http://edis.usitc.gov. Hearing-impaired persons are advised that information
on this matter can be obtained by contacting the Commission's TDD
terminal on (202) 205-1810.
SUPPLEMENTARY INFORMATION: This investigation was instituted on April
21, 2010, based on a complaint filed by Verizon Communications Inc. and
Verizon Services Corp. (collectively, ``Verizon''), alleging a
violation of section 337 in the importation, sale for importation, and
sale within the United States after importation of certain digital set-
top boxes and components thereof, that infringe one or more of claim 14
of U.S. Patent No. 5,635,979; claim 38 of U.S. Patent No. 5,666,293;
claim 13 of U.S. Patent No. 6,381,748 (``the '748 patent''); claim 14
of U.S. Patent No. 6,367,078; and claim 5 of U.S. Patent No. 7,561,214.
75 FR 20861 (2010). Complainant named Cablevision Systems Corp. of
Bethpage, New York (``Cablevision'') as the only respondent. Id.
On September 7, 2010, Verizon moved for summary determination that
its activities in the United States concerning its FiOS TV services
satisfy the economic prong of the domestic industry requirement under
19 U.S.C. 1337(a)(3). On September 24, 2010, Cablevision filed an
opposition to Verizon's motion. Also on September 24, 2010, the
Commission investigative attorney (``the IA'') filed a response in
support of Verizon's motion. On January 11, 2010, the ALJ issued an ID
(Order No. 33) granting Verizon's motion. On January 20, 2011,
respondent Cablevision filed a petition for review of the Summary ID.
On January 27, 2011, Verizon and the IA each filed a response to the
petition for review. On February 11, 2011, the Commission determined to
review the Summary ID and requested written submissions from the
parties on the issues under review. All of the parties timely submitted
their respective initial and reply submissions.
The evidentiary hearing on violation of Section 337 was held from
January 24, 2011 through February 1, 2011. On May 20, 2011, the ALJ
issued his final ID finding a violation of section 337 as to the '748
patent only. The ID included the ALJ's recommended determination on
remedy and bonding. All the parties to the investigation filed timely
petitions for review of various portions of the final ID, as well as
timely responses to the petitions. On July 1, 2011, Cablevision filed
an unopposed motion for leave to file a supplemental submission
regarding a district court proceeding. ActiveVideo Networks, Inc. v.
Verizon Commc'ns, Inc., Civil Action No. 2:10cv248. The motion is
hereby granted.
Having examined the record in this investigation, including the
ALJ's final ID, the petitions for review, and the responses thereto,
the Commission has determined not to review the final ID. The
Commission has also determined to affirm-in-part the ALJ's Order No.
33, granting Verizon's motion for summary determination that it has
satisfied the economic prong of the domestic industry requirement under
19 U.S.C. 1337(a)(3)(C). In particular, the Commission affirms that
Verizon has satisfied the economic prong of the domestic industry
requirement based on its investment in the software development and
testing, installation, and support associated with the set-top boxes
that were alleged to practice the asserted claims of the patents-in-
suit because Verizon's investments in those activities are
``substantial'' within the meaning of Section 337(a)(3)(C). The
Commission takes no position on the remainder of the summary
determination ID. Specifically, the Commission takes no position on
whether Verizon's investments in the FiOS network satisfy the economic
prong.
In connection with the final disposition of this investigation, the
Commission may (1) issue an order that could result in the exclusion of
the subject articles from entry into the United States, and/or (2)
issue one or more cease and desist orders that could result in the
respondent being required to cease and desist from engaging in unfair
acts in the importation and sale of such articles. Accordingly, the
Commission is interested in receiving written submissions that address
the form of remedy, if any, that should be ordered. If a party seeks
exclusion of an article from entry into the United States for purposes
other than entry for consumption, the party should so indicate and
provide information establishing that activities involving other types
of entry either are adversely affecting it or are likely to do so. For
background, see In the Matter of Certain Devices for Connecting
Computers via Telephone Lines, Inv. No. 337-TA-360, USITC Pub. No. 2843
(Dec. 1994) (Commission Opinion).
[[Page 45617]]
If the Commission contemplates some form of remedy, it must
consider the effects of that remedy upon the public interest. The
factors the Commission will consider include the effect that an
exclusion order and/or cease and desist orders would have on (1) the
public health and welfare, (2) competitive conditions in the U.S.
economy, (3) U.S. production of articles that are like or directly
competitive with those that are subject to investigation, and (4) U.S.
consumers. The Commission is therefore interested in receiving written
submissions that address the aforementioned public interest factors in
the context of this investigation.
If the Commission orders some form of remedy, the U.S. Trade
Representative, as delegated by the President, has 60 days to approve
or disapprove the Commission's action. See Presidential Memorandum of
July 21, 2005. 70 FR 43251 (July 26, 2005). During this period, the
subject articles would be entitled to enter the United States under
bond, in an amount determined by the Commission. The Commission is
therefore interested in receiving submissions concerning the amount of
the bond that should be imposed.
Written Submissions: Parties to the investigation, interested
government agencies, and any other interested parties are encouraged to
file written submissions on the issues of remedy, the public interest,
and bonding. Such submissions should address the recommended
determination by the ALJ on remedy and bonding. Complainant and the
Commission investigative attorney are also requested to submit proposed
remedial orders for the Commission's consideration. Complainant is
further requested to provide the expiration date of the '748 patent and
state the HTSUS numbers under which the accused articles are imported.
The written submissions and proposed remedial orders must be filed no
later than the close of business on August 4, 2011. Reply submissions
must be filed no later than the close of business on August 12, 2011.
No further submissions on these issues will be permitted unless
otherwise ordered by the Commission.
Persons filing written submissions must file the original document
and 12 true copies thereof on or before the deadlines stated above with
the Office of the Secretary. Any person desiring to submit a document
(or portion thereof) to the Commission in confidence must request
confidential treatment unless the information has already been granted
such treatment during the proceedings. All such requests should be
directed to the Secretary of the Commission and must include a full
statement of the reasons why the Commission should grant such
treatment. See section 201.6 of the Commission's Rules of Practice and
Procedure, 19 CFR 201.6. Documents for which confidential treatment by
the Commission is sought will be treated accordingly. All
nonconfidential written submissions will be available for public
inspection at the Office of the Secretary.
The authority for this action is contained in section 337 of the
Tariff Act of 1930, as amended (19 U.S.C. 1337), and in sections
210.42-.46 and .50 of the Commission's Rules of Practice and Procedure
(19 CFR 210.42-.46,.50).
Issued: July 21, 2011.
By order of the Commission.
James R. Holbein,
Secretary to the Commission.
[FR Doc. 2011-19183 Filed 7-28-11; 8:45 am]
BILLING CODE 7020-02-P