He will also discuss "Microsoft's plans for the future, particularly where it plans to focus its innovation. He is also expected to outline the company's future relationships with its customers, the government, and other players in the software and computer industries."

The event is scheduled for 11:30 AM through 1:00 PM at the Brookings Institute at 1775 Massachusetts Avenue, NW. The event will also be webcast. See also, Microsoft release.

Statute. The Congress addressed both closed captioning and video description in the Telecommunications Act of 1996. 47 U.S.C. § 613, at subsection (g), defines video description as "the insertion of audio narrated descriptions of a television program's key visual elements into natural pauses between the program's dialogue".

47 U.S.C. § 613(f) provides that "Within 6 months after February 8, 1996, the Commission shall commence an inquiry to examine the use of video descriptions on video programming in order to ensure the accessibility of video programming to persons with visual impairments, and report to Congress on its findings. The Commission's report shall assess appropriate methods and schedules for phasing video descriptions into the marketplace, technical and quality standards for video descriptions, a definition of programming for which video descriptions would apply, and other technical and legal issues that the Commission deems appropriate."

FCC Rule. The FCC adopted a Report and Order [MS Word] in the proceeding titled "Implementation of Video Description of Video Programming". This is MM Docket No. 99-339.

The Report and Order states that "we conclude that we have the authority to adopt video description rules, and require the top broadcast stations and multichannel video programming distributors (MVPDs) to provide programming with video description on the top programming networks." The FCC asserted authority under § 613 and § 151, which is a broad introductory section stating the purpose of the FCC.

In particular, the Report and Order requires that "affiliates of the top four commercial broadcast TV networks in the top 25 TV markets to provide 50 hours per calendar quarter of prime time and/or children’s programming with video description" and that "MVPDs with 50,000 or more subscribers to provide 50 hours per calendar quarter of prime time and/or children’s programming with video description on each of the top five national nonbroadcast networks they carry."

Commissioner Michael Powell dissented. He wrote at the time that the FCC "yet again is extending its reach beyond a specific statutory provision ... Because I find Congress spoke to video description in section 713(f) of the Act, and purposely limited the Commission to studying the issue and reporting to Congress, I dissent to the adoption of video description rules ..."

The Motion Picture Association of America (MPAA) and the National Federation of the Blind (NFB) both filed petitions for review.

Appeals Court. The Appeals Court held that § 613 requires that the FCC promulgate closed captioning regulations, but that it merely write a report regarding video description. Moreover, § 151 provides no authority to promulgate regulations that significantly implicate program content. The FCC's video description rule exceeds its statutory authority, and hence, the rule must be vacated.

The Court wrote that § 613(f) and (g), "the sole subsections dealing with video description -- merely defined ``video description´´ and required the FCC to prepare a report to Congress. 47 U.S.C. § 613(f)-(g). Unlike the provisions covering closed captioning," § 613 "did not authorize the Commission to adopt regulations implementing video descriptions."

The Court also wrote that "There is no doubt that the video description rules regulate programming content. Video description is not a regulation of television transmission that only incidentally and minimally affects program content;  it is a direct and significant regulation of program content. The rules require programmers to create a second script."

It also wrote that § 151 "has not been construed to allow the FCC to regulate programming content is because such regulations invariably raise First Amendment issues."

Also, the Department of Justice (DOJ) has promulgated no related rules. However, the DOJ has asserted that the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101, et seq., applies to web pages. (See, letter of September 9, 1996 from Assistant Attorney General Deval Patrick to Sen. Tom Harkin (D-IA).)

Hypothetically, if an agency were to write rules regulating web pages, such rules would likely require the creation of content, as does the FCC's video description rule. For example, such rules might require writing text for alt tags for images.

Hence, the opinion in MPAA v. FCC may have some relevance to the question of whether, or the extent to which, the government could regulate web content for purposes related to access by visually impaired persons.

The opinion in MPAA v. FCC construes the Communications Act, not the ADA or any other statute. However, it does, at minimum, stand for the proposition that government rules that mandate the creation of text for the purpose of access by visually impaired persons implicates the First Amendment.

11/11. Hewlett Packard (HP) announced that Michael Capellas will leave his positions as President and member of the Board of Directors. See, HP release.

11/11. BT named Alison Ritchie Chief Broadband Officer. See, BT release.

11/11. William Esrey, Ch/CEO of Sprint, has been diagnosed with lymphoma, a cancer of the lymphatic system, and will begin chemotherapy to treat the disease. Sprint stated in a release that "Doctors ... have informed him that the lymphoma is considered highly treatable and they anticipate a full recovery. ... Esrey will continue to handle his full day-to-day responsibilities as chairman and chief executive officer while undergoing treatment."

11/6. Martin Gold will join the legislative practice group of the law firm of Covington & Burling, effective January 1, 2003. He focuses on sports law, health care, antitrust, communications, and taxation. See, CB release [PDF].

11/7. H.P. Goldfield joined the law firm of Hogan & Hartson as a senior international advisor. He focuses on government affairs and international trade. See, HH release.

11/7. Margaret "Peg" Warner was named head the Washington DC office component of the Trial Department of the law firm of McDermott Will & Emery. See, MWE release.

10/31. Martin Noonen and Michael Vella and were elected partners in the law firm of Morrison & Foerster. Noonen is a patent litigator in the Los Angeles office. Vella is a patent litigator in the San Diego office. See, MoFo release.

The Senate will meet at 1:00 PM.

9:00 AM - 6:30 PM. Day one of a two day conference titled "W3C Workshop on the Future of P3P". The topic is the the World Wide Web Consortium's (W3C) Platform for Privacy Preferences Project (P3P). See, agenda. See also, links to copies of submitted papers. Location: Dulles, Virginia campus of America Online, Seriff Auditorium, Creative Center 2, America Online Dulles campus; enter the campus at Creative Center 3 (CC3), 22110 Pacific Blvd, Dulles, VA.

CANCELLED? 9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in Z Tel Communications v. FCC, No. 01-1461. This is a challenge to the FCC's order approving Verizon's Section 271 application to provide in region interLATA service in the state of Pennsylvania. Judges Ginsburg, Edwards and Garland will preside. Location: 333 Constitution Ave., NW.

10:00 AM. The Supreme Court will hear oral argument in Moseley v. V. Secret Catalogue, No. 01-1015. This is a trademark case in which the issue is whether the plaintiff in a lawsuit for violation of the Federal Trademark Dilution Act (FTDA) must show actual economic loss. See, story titled "Supreme Court Grants Certiorari in Trademark Case" in TLJ Daily E-Mail Alert No. 416, April 16, 2002, and story titled "INTA Files Amicus Brief in Trademark Dilution Case" in TLJ Daily E-Mail Alert No. 501, September 4, 2002. See, also International Trademark Association's (INTA) amicus curiae brief [39 pages in PDF], and Intellectual Property Owners Association (IPO) amicus curiae brief [18 pages in PDF]. Oral argument begins at 10:00 AM, and this is the second case on the list. Location: One First Street, NE,

10:40 AM. Treasury Secretary Paul O’Neill will give a speech to the Fortune Global Forum. Location: The Ritz-Carlton, Salon 3, 1150 22nd Street, NW.

11:30 AM - 1:00 PM. Microsoft CEO Steve Ballmer will give a lecture on the technology industry following the U.S. District Court's approval of the settlement in the government's antitrust action against Microsoft. He will also address Microsoft's plans. Webcast. Press contact: Sarah Gegenheimer at 202 337-0808. See, Brookings notice and MSFT notice. Location: Falk Auditorium, Brookings Institution, 1775 Massachusetts Ave., NW.

3:30 - 4:30 PM. The Heritage Foundation will host an address by Rep. Jim Ryun (R-KS) titled "Reforming Congress for a Safer Homeland: The Need for Congressional Committee Reorganization". Location: 214 Massachusetts Ave., NE.

6:00 - 8:00 PM. The FCBA will host a CLE seminar titled "FCC Winter Preview". The panelists will include Donald Abelson (Chief of the FCC's International Bureau), Thomas Sugrue (Chief of the FCC's Wireless Telecommunications Bureau), Kenneth Feree (Chief of the FCC's Media Bureau), and William Maher (Chief of the FCC's Wireline Competition Bureau), and Bryan Tramont (Senior Legal Advisor to FCC Chairman Michael Powell). Location: Sidley Austin, Conference room 6-E.

9:00 AM - 5:30 PM. Day two of a two day conference titled "W3C Workshop on the Future of P3P". The topic is the the World Wide Web Consortium's (W3C) Platform for Privacy Preferences Project (P3P). See, agenda. See also, links to copies of submitted papers. Location: Dulles, Virginia campus of America Online, Seriff Auditorium, Creative Center 2, America Online Dulles campus; enter the campus at Creative Center 3 (CC3), 22110 Pacific Blvd, Dulles, VA.

9:00 AM. Day one of a two day meeting of Information Systems Technical Advisory Committee (ISTAC) of the Commerce Department's (DOC) Bureau of Industry and Security (formerly known as the Bureau of Export Administration). The ISTAC advises the BIS on technical questions that affect the level of export controls applicable to information systems equipment and technology. The meeting will be partly open, and partly closed. The agenda for the open portion of the meeting includes a presentation on China's high performance computing market and a presentation on semiconductor manufacturing trends. The agenda for the closed portion of the meeting is secret. See, notice in the Federal Register. Location: DOC, Room 3884, 14th Street between Pennsylvania and Constitution Aves., NW.

12:00 NOON - 1:30 PM. The National Telecommunications Cooperative Association (NTCA) will host a press luncheon to unveil the NTCA's legislative initiatives for 2003. Contact Donna Taylor at 703 351-2086 or dtaylor@ntca.org no later than Tuesday, November 12. Location: National Press Club, 529 14th Street, NW.

12:15 PM. The FCBA's Mass Media Practice Committee will host a brown bag lunch. The topic will be radio issues. The speakers will be Peter Doyle (Chief of the FCC's Audio Division) and other FCC staff. RSVP to Barry Umansky at 202 263-4128 or barry.umansky @thompsonhine.com. Location: National Association of Broadcasters, 1771 N St., NW.

6:00 PM. The Center for Democracy and Technology (CDT), Truste, and Privastaff will host a book signing and wine and cheese reception for Ann Cavoukian, Information and Privacy Commissioner of Ontario and co-author of The Privacy Payoff: How Successful Business Build Customer Trust. For more information, contact LuJuan Brooks at 202 637-9800 or lbrooks@cdt.org. Location: National Press Club, 529 14th St. NW, 13th Floor.

The Cato Institute will host a day long conference titled "Telecom and Broadband Policy After the Market Meltdown". See, notice. Webcast. Location: Cato, 1000 Massachusetts Ave., NW.

Day one of a three day conference of the Federalist Society. At 1:45 - 3:15 PM there will be a panel titled "Privacy in the Post-September 11 World". The speakers will be Viet Dinh (DOJ), Lino Graglia (University of Texas School of Law), Robert Levy (Cato), Barry Steinhardt (ACLU), George Terwilliger (White & Case), and Judge Edith Clement (Court of Appeals, 5th Circuit). At 3:50 - 5:20 PM there will be a panel titled "Telecommunications Group: Privacy, Telecommunications, and Technology: Does Emerging Technology Force New Privacy Considerations?" The speakers will be Kathleen Abernathy (FCC Commissioner), Stewart Baker (Steptoe & Johnson), Jerry Berman (CDT), Reid Cox (Center for Individual Freedom), James Harper (privacilla.org), and Judge Stephen Williams (Court of Appeals, D.C. Circuit). See, schedule and online registration page. Location: Mayflower Hotel, 1127 Connecticut Ave., NW.

TIME? Day one of a two day conference hosted by Cellular Telecommunications and Internet Association (CTIA) titled "Homeland Security Critical Issues Forum". Its subject matter will include network security and reliability, physical and cyber security, network vulnerabilities, and how other critical infrastructures may impact CMRS networks. The event is closed to the public. At 12:30 PM Dick Clarke, Special Advisor to the President for Cyberspace Security and Chairman of the President’s Critical Infrastructure Protection Board, will speak. A CTIA release states that "Only lunch sessions are open to the media. Credentials required for admittance." For more information, contact Kimberly Kuo at 202 736-3202 or Kkuo@ctia.org. Location: Omni Shoreham Hotel, Empire Ball Room, 2500 Calvert Street, NW.

8:30 - 9:30 AM. The High Tech Broadband Coalition (HTBC) will host a press briefing breakfast regarding its participation in the FCC's proceedings pertaining to regulatory treatment of high speed Internet access. The HTBC wants the FCC to relax regulatory restraints imposed on incumbent local exchange carriers (ILECs) in the roll out of high speed Internet access. The participants will include E. Van Cullens (Westell), Jim Hjartarson (Catena Networks), Michael Norris (NextLevel Communications), Gregory Jones (Texas Instruments), Jerry Fiddler (Wind River Systems), George Nolan (Siemens), George Brunt (Alcatel), Doug Clark (ADC), Matt Flanigan (TIA), and Gary Shapiro (Consumer Electronics Association). Press contact: Jeri Clausing (BSA) at (202 530-5127 or jeric@bsa.org. Location: National Association of Manufacturers, 1331 Pennsylvania Ave., Suite 600, NW. Enter off F St. between 13th & 14th Streets.

9:00 AM. Day two of a two day meeting of Information Systems Technical Advisory Committee (ISTAC) of the Commerce Department's Bureau of Industry and Security (formerly known as the Bureau of Export Administration). The ISTAC advises the BIS on technical questions that affect the level of export controls applicable to information systems equipment and technology. The meeting will be partly open, and partly closed. The agenda for the open portion of the meeting includes a presentation on China's high performance computing market and a presentation on semiconductor manufacturing trends. The agenda for the closed portion of the meeting is secret. See, notice in the Federal Register. Location: Room 3884, Hoover Building, 14th Street between Pennsylvania and Constitution Ave., NW.

10:00 AM. The Senate Judiciary Committee will hold a business meeting. Location: Room 226, Dirksen Building.

12:00 NOON. Deputy Treasury Secretary Kenneth Dam will give a speech to the Tax Foundation 65th National Conference. Location: Four Seasons Hotel, 2800 Pennsylvania, Ave., NW.

2:00 PM. The Senate Judiciary Committee's Subcommittee on on Technology, Terrorism, and Government Information will hold a hearing titled "America Still Unprepared -- America Still in Danger: The October 2002 Hart -- Rudman Terrorism Task Force Report". Sen. Dianne Feinstein (D-CA) will preside. Location: Room 226, Dirksen Building.

9:00 AM - 3:30 PM. EntrepreneurPR will host an event titled "Small Business Intellectual Property Conference". The scheduled speakers include Sharon Marsh (Administrator for Trademark Policy and Procedure, USPTO) and Michael See (Small Business Administration). The price to attend is $125. The notice states that there are "no fees for members of the media or government staff". Location: Room 311, Cannon House Office Building.

TIME? Day two of a two day conference hosted by Cellular Telecommunications and Internet Association (CTIA) titled "Homeland Security Critical Issues Forum". Its subject matter will include network security and reliability, physical and cyber security, network vulnerabilities, and how other critical infrastructures may impact CMRS networks. The event is closed to the public. At 12:30 PM, Nancy Wong, Deputy Director, National Outreach and Awareness, Critical Infrastructure Assurance Office (CIAO), will speak. A CTIA release states that "Only lunch sessions are open to the media. Credentials required for admittance." For more information, contact Kimberly Kuo at 202 736-3202 or Kkuo@ctia.org. Location: Omni Shoreham Hotel, Empire Ball Room, 2500 Calvert Street, NW.

CANCELLED: TO BE DECIDED WITHOUT ORAL ARGUMENT. 9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in Aerco Broadcast Corp v. FCC, No. 01-1466. Judges Sentelle, Henderson and Silberman will preside. Location: Courtroom 20, 333 Constitution Ave., NW.

Deadline to submit comments to the President's Critical Infrastructure Protection Board regarding the document titled "National Strategy to Secure Cyberspace", which was released on September 18. For more information, contact Tommy Cabe at 202 456-5420. See, notice in the Federal Register.

12:15 PM. The FCBA's Common Carrier Committee will host a brown bag lunch. The speakers will be the FCC Commissioners' wireline competition advisors. Location: Willkie Farr & Gallagher, 1875 K Street, 2nd Floor, NY Conference Room.

5:30 - 6:45 PM. Richard Posner, Judge of the U.S. Court of Appeals (7thCir), will give a lecture titled "The Political Economy of Intellectual Property Law" at an AEI-Brookings Joint Center event. A wine and cheese reception will follow at 6:45 PM. See, online registration page. Location: AEI, Wohlstetter Conference Center, 12th Floor, 1150 17th Street, NW.

6:00 - 8:00 PM. The FCBA will host a CLE seminar titled "The FCC’s Triennial Review of Unbundled Network Elements: How Significant are UNE-P and other UNEs to Local Competition?" Registrations and cancellations due by 5:00 PM on November 15. Location: Dow Lohnes & Albertson, Suite 800, 1200 New Hampshire Avenue, NW.

Deadline to submit reply comments to the FCC regarding its request to refresh its record regarding customer proprietary network information (CPNI) implications when a carrier goes out of business, sells all or part of its customer base, or seeks bankruptcy protection. This is the FCC's Third Further Notice of Proposed Rulemaking in CC Docket Nos. 96-115, 96-149 and 00-257. See, notice in the Federal Register.

Deadline to submit applications for planning and construction grants to the NTIA for public television facilities under the Public Telecommunications Facilities Program (PTFP). See, notice in the Federal Register.