Martin (at right) began by again stating that the FCC should take action in four of its most important long pending Notice of Proposed Rulemakings (NPRMs) relating to broadband regulation. He said that "We have four critical rulemakings that have been pending since the beginning of the year: the Triennial Review of unbundled network elements, the dominant nondominant proceeding, the wireline broadband NPRM, and the cable modem service NPRM."

See, article below titled "So, Just What Are All of These FCC Broadband Proceedings About Anyway?"

Martin stated that "The records are complete, we have considered and debated the issues at length, and the proceedings are now ripe for action." He added that "industry conditions cry out for answers". This is a point that Martin has made in other recent speeches.

Martin then listed three core values and goals that he said should guide the FCC's decision making. "First, the Commission should make its top priority new investment and deployment of advanced network infrastructure. ... Second, the Commission must minimize further questions and avoid creating greater uncertainty or prolonging ambiguity in this area. ... Third, the Commission must be responsive to the courts by outlining a clear standard on the necessary and impair test while remembering Congress’s goal of ensuring that the local markets are truly open to competition.

Martin made several recommendations regarding the goal promoting investment and promoting deployment of broadband facilities.

TELRIC Pricing. Martin said that "we need to adjust the TELRIC pricing formula for all new investment on a going forward basis. In my view, the TELRIC pricing formula provides incumbent service providers with an insufficient return on investment capital for new infrastructure." He added that "In a nutshell, the existing TELRIC formula fails to accurately measure the true risk of capital investment under current economic conditions, and creates an unnecessary barrier for the deployment of broadband facilities."

Fiber to the Home. With respect to the place of new fiber investment deployed to a customer premises in the FCC's unbundled network element regime, Martin said that "if incumbent service providers decide to build new fiber local loops to a customer premise, they should be free of ``old style´´ legacy rules."

Hybrid Facilities. Martin stated that "new entrants should only use incumbent facilities that are truly necessary for new entrants to provide service" and that the FCC "ought to reexamine how our unbundling and/or pricing rules apply to incumbent deployment of new facilities."

He elaborated that "I believe that the Commission should freeze the service capacity level that must be made available on new or upgraded facilities to the service capacity level provided by the ILEC prior to the new investment in a hybrid facility." Moreover, he said that "I believe that incumbents should be given the proper incentives to push fiber deeper into their networks and closer to the American consumer."

Martin then made several recommendations regarding the goal of minimizing uncertainty.

Need for Quick Action. He reiterated that "we should act quickly on our major pending rulemakings" including the UNE triennial review, the wireline broadband NRPM, and cable modem service NPRM. He said that "Protracted uncertainty can prolong financial difficulties. Regulatory uncertainty and delay can function as entry barriers in and of themselves, limiting investment and impeding deployment of new services."

Martin's Proposal for Resolving Pending Proceedings. He then reviewed the logical alternatives available to the FCC for resolving broadband regulatory classification and unbundling issues, and stated his preference.

One alternative -- Martin's choice -- is to "treat DSL services similar to cable modem service. In doing so, we would need to change our Computer II rules so that incumbent providers would no longer be required to provide underlying transmission services as retail service offerings. Providers nevertheless would have the incentive to provide broadband transport to unaffiliated ISPs on reasonable terms, because only by doing so could they maximize the value of their investments. Such offerings would be made available on a private carriage basis and not as unbundled tariffed offerings. The Commission could, on an interim basis, guarantee ISPs access to broadband transmission services in a nondiscriminatory manner. Specifically, ILECs would be required to offer unaffiliated ISPs the same transmission services that the ILEC offers to its own affiliates through private carriage agreements. This nondiscrimination requirement could be put in place for two or three years, but then sunset unless the FCC extends it to all broadband providers."

He added that the only other logical alternatives would be to "treat cable modem services similar to DSL services" or to "classify wireline broadband as a telecommunications service, with the accompanying nondiscrimination requirements, and to acknowledge that the Commission was wrong when it declared cable modem service to be an information service. Instead, the Commission could determine that cable modem service is a cable service subject to the panoply of Title VI regulations currently applicable to cable service providers, such as local franchise obligations and service regulations."

Regulatory classifications are important because each regulated sector has operated under vastly different rules. The basic rules for each is codified in the Communications Act of 1934, which has been amended on many occasions. The most recent major revision was the Telecommunications Act of 1996. However, the basic regulatory schemes are complex, and the Congress has left it to the FCC to write and update detailed regulations to implement the basic scheme of the Communications Act.

The usual process for the FCC to implement the Communications Act is to conduct a rule making proceeding. The FCC first issues a Notice of Proposed Rulemaking (NRPM), which is typically a long document that states the topic, offers the FCC's tentative proposals, and states the subjects upon which it seeks public comment. Then, after receiving and reviewing public comment, the FCC sometimes issues regulations. The process can take many years. And often, the federal courts overturn its rules, and remand the matter to the FCC for a further rulemaking.

Until recently, one usually knew how to classify a company, and its services, and what rules applied. Today, however, with new technologies, convergence of technologies, and companies providing more diversified services, there is frequently an issue as to how to classify and regulate a particular service. The service provider often seeks a regulatory classification that is advantageous to it. Its competitors often seek a classification is less advantageous to it.

So the question arises, with respect to some new service, "Is is an unregulated information service? Or, is it a cable service to be regulated under the rules applicable to cable services? Or, is it a telecommunications service?" And, so forth.

Today, one of the overarching tasks facing the FCC is how to classify for regulatory purposes a number of new broadband related services. Several of the broadband proceedings referenced by Commissioner Martin pertain to how to classify certain of these new services. One NPRM, known as the triennial review, addresses regulatory classifications, and the circumstances under which incumbent local exchange carriers (ILECs) must make parts of their networks available to requesting carriers on an unbundled basis pursuant to Section 251 of the Communications Act.

The following is a brief summary of the proceedings addressed by Commission Martin.

Dominant Non-dominant NPRM. This is Docket No. 01-337. The FCC adopted this NPRM [PDF] at its December 12, 2001 meeting. (A word of caution. These PDF files in the FCC web site can take a long time to download.) See also, December 12, 2001 release and notice in the Federal Register, January 15, 2002, Vol. 67, No. 10, at Pages 1945 - 1947.

The FCC's notice in the Federal Register states that "This document seeks comment on changes, if any, the Commission should make to its traditional regulatory requirements for incumbent local exchange carriers' (LECs) broadband service. In particular, it asks: What the relevant product and geographic markets should be for broadband services; whether incumbent LECs possess market power in any relevant market; and whether dominant carrier safeguards or other regulatory requirements should govern incumbent LECs provision of broadband service."

Wireline Broadband NRPM. This is Docket 02-33. The FCC adopted this NPRM [58 pages in PDF] at its February 14, 2002 meeting. See also, the FCC's notice in the Federal Register. This NPRM pertains to the appropriate regulatory framework for broadband access to the Internet over wireline facilities.

This NPRM states that "we examine the appropriate classification for wireline broadband Internet access service. As discussed more fully below, we tentatively conclude that, as a matter of statutory interpretation, the provision of wireline broadband Internet access service is an information service. In addition, we tentatively conclude that when an entity provides wireline broadband Internet access service over its own transmission facilities, this service, too, is an information service under the Act. In addition, we tentatively conclude that the transmission component of retail wireline broadband Internet access service provided over an entity’s own facilities is ``telecommunications´´ and not a ``telecommunications service.´´ We seek comment on these tentative conclusions and ask additional questions with regard to the proper classification of wireline broadband Internet access service."

Cable Modem Service NPRM. This is Docket No. 00-185 and Docket No. 02-52. It is actually both a Declaratory Ruling (DR) and a NPRM. The FCC adopted this Declaratory Ruling and Notice of Proposed Rulemaking [75 pages in PDF] at its March 14, 2002 meeting. See also, March 14 FCC release.

This NPRM addresses the legal classification and the appropriate regulatory framework for broadband access to the Internet over cable system facilities. It states that "we conclude that cable modem service, as it is currently offered, is properly classified as an interstate information service, not as a cable service, and that there is no separate offering of telecommunications service. In addition, we initiate a rulemaking proceeding to determine the scope of the Commission's jurisdiction to regulate cable modem service and whether (and, if so, how) cable modem service should be regulated under the law ..."

Triennial Review. This is Docket No. 01-338. The FCC adopted this NPRM [62 pages in PDF] at its December 12, 2001 meeting. See also, December 12, 2001 release and notice in the Federal Register.

The FCC wrote on December 12 that unbundled network elements (UNEs) "are the portions of the phone networks that incumbent local exchange carriers (LECs) must make available to competing carriers seeking to provide telecommunications services. Recognizing that incumbent LECs control some bottleneck facilities, Congress adopted section 251 of the 1996 Act to overcome the obstacles posed by that control."

The FCC wrote that "Specifically, the FCC will examine the framework under which incumbent LECs must make UNEs available to competing carriers. The Commission's action seeks to ensure that its regulatory framework reflects recent technological advances and marketplace developments and to remain current and faithful to the pro-competitive, market opening provisions of the Telecommunications Act of 1996."

The FCC further elaborated in it NPRM that "In 1996, the Commission first applied the statute and determined which network elements need to be unbundled to permit requesting carriers to compete. Then, in 1999, the Commission revisited its unbundling analysis, on remand from the Supreme Court. Recognizing that market conditions would change and create a need for commensurate changes to the unbundling rules, the Commission determined to revisit its unbundling rules in three years -- a schedule we adhere to by adopting this Notice of Proposed Rulemaking (NPRM) today. In this review, we undertake a comprehensive evaluation of our unbundling rules. We seek to ensure that our regulatory framework remains current and faithful to the pro-competitive, market-opening provisions of the 1996 Act in light of our experience over the last two years, advances in technology, and other developments in the markets for telecommunications services." (Footnotes omitted.)

Recommended Reading. The original NPRMs, other FCC notices, and all written comments submitted to the FCC, for each proceeding, can be viewed in the FCC web site. See, FCC search page titled "Search for Filed Comments". To obtain a list of all filings in a particular proceeding, enter the proceeding's docket number (i.e., "02-52") in the top box titled "Proceeding", and then click on the button titled "Retrieve Document List". This section of the web site is extraordinarily slow, and sometimes does not function. Nevertheless, it is a treasure trove of information.

As of December 12, 2002, Docket No. 01-337 (Dominant NPRM) contained 181 items, Docket No. 01-338 (Triennial Review) contained 857 items, Docket No. 02-52 (Cable Modem Service DR & NPRM) contained 272 items, and Docket No. 02-33 (Wireline Broadband NPRM) contained 1075 items.

Also, FCC Commissioner Kathleen Abernathy has given speeches in which she has summarized some of these same proceedings. See, transcript of speech dated June 28, 2002. See also, story titled "Abernathy Summarizes Pending FCC Broadband Related Proceedings", TLJ Daily E-Mail Alert No. 472, July 18, 2002.

The complaint sites an article by Robert O'Harrow in the Washington Post titled "Intricate Screening Of Fliers In Works: Database Raises Privacy Concerns" as authority for the proposition that the DOT system would "establish a computer network linking every reservation system in the United State to private and government databases."

See also, the EPIC's web page titled "Air Travel Privacy".

She stated that "our tax rules appear outmoded, at best, and punitive of U.S. economic interests, at worst. Most other developed countries of the world are concerned with setting a competitiveness policy that permits their workers to benefit from globalization." She added that "our international tax policy seems to have been based on the principle that if we have a competitive advantage, we should tax it!"

She said that "Technology is a key driving force behind globalization. Advances in communications, information technology, and transport have slashed the cost and time taken to move goods, capital, people, and information.  Firms in this global marketplace differentiate themselves by being smarter: applying more cost efficient technologies or innovating faster than their competitors. The returns to being smarter are much higher than they once were as the benefits can be marketed worldwide."

She concluded that "It is time for us to review our rules based on the world in which we live today and the world we imagine for the future. We must design rules that equip us to compete in the global economy -- not fearfully, but hopefully."

However, the report also identified several "significant problems", including lack of enforcement of intellectual property rights (IPR). The report also addresses lack of transparency, and China's failure to establish an independent regulator in the telecommunications sector.

The report states that "While the efforts of China’s leadership to implement China’s WTO commitments should be recognized, the Administration also found a number of causes for serious concern during China’s first year of WTO membership."

Lack of Transparency. The report found that "One area of cross cutting concern involved transparency. In particular, China implemented its commitment to greater transparency in the adoption and operation of new laws and regulations unevenly at best. While some ministries and agencies did take steps to improve opportunities for public comment on draft laws and regulations, and to provide appropriate WTO enquiry points, the Administration found China's overall effort to be plagued by uncertainty and a lack of uniformity. The Administration is committed to seeking improvements in China’s efforts in this area."

Telecommunications. The report states that "In its accession agreement, China agreed to important commitments in the area of telecommunications services. It committed to permit foreign suppliers to provide a broad range of services through joint ventures with Chinese companies, including domestic and international wired services, mobile voice and data services, value-added services, such as electronic mail, voice mail and on-line information and database retrieval, and paging services. The foreign stake permitted in the joint ventures is to increase over time, reaching a maximum of 49 percent for most types of services. In addition, all geographical restrictions are to be eliminated within two to six years after China’s WTO accession, depending on the particular services sector."

The report continues that "Importantly, China also accepted key principles from the WTO Agreement on Basic Telecommunications Services. As a result, China became obligated to separate the regulatory and operating functions of MII (which has been both the telecommunications regulatory agency in China and the operator of China Telecom) upon its accession. China also became obligated to adopt pro-competitive regulatory principles, such as cost-based pricing and the right of interconnection, which are necessary for foreign-invested joint ventures to compete with China Telecom."

The report notes that the State Council has issued regulations that implement China's commitments by providing for the establishment of foreign invested joint ventures.

However, the report finds that "China has not yet made any progress toward establishing an independent regulator in the telecommunications sector. The current regulator, MII, is not structurally or financially separate from all telecommunications operators and providers." Moreover, the report finds that "China has also used regulatory authority to disadvantage foreign firms during 2002. For example, MII arbitrarily raised settlement rates for international calls terminating in China, which had the effect of artificially boosting the revenues of Chinese telecommunications operators at the expense of foreign firms. At times, MII also changed applicable rules without notice and without transparency."

Intellectual Property. China has accepted the Agreement on Trade Related Aspects of Intellectual Property Rights (aka TRIPS) [33 pages in PDF], which requires minimum rules and enforcement of IPR of foreign companies, including protection for copyrights and neighboring rights, trademarks, geographical indications, industrial designs, patents, integrated circuit layout designs and undisclosed information. The report finds that China has amended its patent, trademark and copyright laws and regulations, and that this constitutes "major improvements that generally move China generally in line with international norms in most key areas."

However, the report finds problems with enforcement of IP laws. It states that "IPR enforcement is hampered by lack of coordination among Chinese government ministries and agencies, local protectionism and corruption, high thresholds for criminal prosecution, lack of training and weak punishments."

The report also states that new laws and regulations in China "address copyrights issues related to the Internet. U.S. companies, however, would still like to see China accede to the World Intellectual Property Organization (WIPO) internet treaties and harmonize its laws and regulations fully with WIPO internet treaty requirements. Some observers view China’s offer to host the annual WIPO Conference in April 2003 as a step in the right direction."

The report also notes that "A new regulation on copyright protection for computer software products delineates the protected interests for computer software development, circulation and application. According to the regulation, an individual software developer may keep his or her copyright for life, and it will continue in the individual’s name for 50 years after death."

USTR Robert Zoellick (at right) stated in a release that "It's a win-win state of the art FTA for the modern economy -- it not only slashes tariffs, it reduces barriers for services, protects leading edge intellectual property, keeps pace with new technologies, ensures regulatory transparency and provides effective labor and environmental enforcement".

The USTR has not yet published the draft FTA in its web site. It did state, however, that the FTA "offers new access for ... telecommunications companies", and lower tariffs for "computers and other information technology products". It also released a fact sheet that states that the FTA contains "State of the art protections for digital products such as U.S. software, music, text, and videos. Protection for U.S. patents and trade secrets exceeds past trade agreements."

The Recording Industry Association of America (RIAA) is pleased. RIAA EVP Neil Turkewitz stated in a release that "it would appear that US negotiators have added an important new element in the global legal system for the protection of intellectual property."

Pursuant to the statute enacted earlier this year granting the President trade promotion authority, the USTR must give the Congress 90 notice of a FTA before signing the agreement. Then, the Congress can either accept or reject that FTA, but not amend it.

9:30 AM. The U.S. International Trade Commission (USITC) will meet regarding the preliminary countervailing duty investigation regarding DRAMs and DRAM Modules from Korea (Investigation No. 701-TA-431). See, notice published in the Federal Register. Location: Main Hearing Room, ITC Building, 500 E Street, SW.

Day two of a two day conference hosted by the Practicing Law Institute and the FCBA titled "Telecommunications Policy and Regulation". Location: Reagan International Trade Center.

EXTENDED TO JANUARY 17. Deadline to submit reply comments to the FCC in response to its Notice of Proposed Rulemaking (NPRM) [15 pages in PDF] in its proceeding titled "In the Matter of Digital Broadcast Copy Protection". This NPRM proposes that the FCC promulgate a broadcast flag rule, and seeks comment on this, and related questions. This is MB Docket No. 02-230. See also, FCC release [PDF] and Order [PDF] of October 11, 2002 extending deadlines.

12:15 PM. The FCBA's Professional Responsibility Committee will host a brown bag luncheon. For more information, contact Frank Montero at 202 663-8936. RSVP to wendy@fcba.org. Location: Arnold & Porter, 555 12th St., NW.

Deadline to submit comments to the National Institute of Standards and Technology (NIST) regarding its draft publication [90 pages in PDF] file titled "Security Metrics Guide for Information Technology Systems". This is NIST Special Publication 800-55. It was written by Marianne Swanson, Nadya Bartol, John Saboto, and Joan Hash in the NIST's Information Technology Laboratory's Computer Security Division. Send comments to marianne.swanson @nist.gov.

10:00 AM - 12:00 NOON. The Department of State's (DOS) U.S. International Telecommunication Advisory Committee (ITAC) will hold a meeting to discuss matters related to the World Summit on the Information Society (WSIS) scheduled for December 2003. See, notice in the Federal Register, December 3, 2002, Vol. 67, No. 232, at Page 72018. Location: National Academy of Sciences, 2100 C St. NW.

1:30 - 3:30 PM. The FCC's WRC-03 Advisory Committee, Informal Working Group 7, Regulatory Issues and Future Agendas, will meet. Location: Boeing Company, Arlington, VA.

2:00 PM. The Securities and Exchange Commission (SEC) will hold a roundtable meeting to discuss the international impact of proposed rules to be promulgated under the Sarbanes Oxley Act of 2002 on attorney conduct. Audio of the meeting will be web cast. See, SEC release. Location: SEC headquarters, 450 Fifth Street, NW.

Deadline for the FCC to rule on BellSouth's Section 271 application with the FCC to provide in region interLATA service in the states of Florida and Tennessee. This is WC Docket No. 02-307. See, FCC notice [PDF].

1:00 - 4:00 PM. The U.S. Patent and Trademark Office (USPTO) will host a roundtable meeting. The USPTO has offered two descriptions of the purpose of this meeting. It stated in an October 28 notice in the Federal Register that the meeting will address small business views on foreign patent challenges. It stated in a December 9 notice that the meeting will address harmonization of patent laws. This roundtable, along with two others in Los Angeles and Chicago, are being held pursuant to a recommendation contained in a General Accounting Office (GAO) report [PDF] titled "Federal Action Needed to Help Small Businesses Address Foreign Patent Challenges". This report was released on August 22, 2002. See also, story titled "GAO Reports Foreign Patent Challenges Facing Small Businesses" in TLJ Daily E-Mail Alert No. 497, August 23, 2002. December 19 is also the deadline to submit written comments. To make reservations to attend, contact Velica Steadman at 703 305-9300 or velica.steadman @uspto.gov. Location: Crystal Park 2, 2121 Crystal Drive, Arlington, VA.

12/11. AOL announced that its subsidiary, Tegic Communications, and Zi Corporation settled their pending patent infringement litigation. No details of the settlement were released. See AOL release. Tegic makes T9 Text Input, alphabet based and Chinese and Japanese character based text input software. Zi filed a complaint in U.S. District Court (WDWash) against Tegic on March 10, 1999 alleging that Tegic's T9 infringed a patent held by Zi. The District Court granted summary judgment to Tegic. On October 24, 2000 the U.S. Court of Appeals (FedCir) vacated and remanded in an opinion not citable as precedent.

12/11. Secretary of Commerce Don Evans and Chinese Minister of Science and Technology Xu Guanhua signed a Protocol Agreement. The Department of Commerce (DOC) announced in a release that the agreement is "focused on strengthening technology based economic relations between China and the United States. The agreement will create new opportunities for technology based entities by facilitating technology partnerships between the United States and China." The DOC further stated that "This agreement will further encourage experts to come together to share best practices on technology policy issues such as transparency and technology neutral standards making processes and effective intellectual property rights protection. Scientists and innovators from both countries will also be able to explore ways to apply new technologies to solve social and economic problems."