4/7. The Office of the U.S. Trade Representative (USTR) released a report [13 pages in PDF] titled "Results of 2004 Section 1377 Review of Telecommunications Trade Agreements".

Section 1377 of the Omnibus Trade and Competitiveness Act of 1988, which is codified at 19 U.S.C. § 3106, tasks the USTR with preparing an annual report on the operation and effectiveness of telecommunications related trade agreements. See also, USTR release [PDF].

The report identifies four main problems: mandatory and discriminatory technology standards (and especially the PR China's WAPI standard, to the exclusion of CDMA, for wireless LAN products), excessive fixed to mobile termination rates, excessive pricing and provisioning delays for access to leased lines and submarine cable capacity, and the lack of an independent telecommunications and technology regulator.

The report states that the "USTR is seriously concerned about mandatory single-technology standards being considered or proposed for wireless telecommunications services and equipment in China (Wireless LAN Authentication and Privacy Infrastructure or ``WAPI´´, 3G services, and 450 MHz services); Korea (Wireless Internet Protocol for Interoperability or ``WIPI´´ and 2.3GHz services); and Japan (new 3G services)." (Parentheses in original.)

However, the report focuses on the People's Republic of China's abuse of technology standards. It states that "China announced that it would require all WLAN products (including computers to be connected to WLANs) sold in China to be developed in cooperation with 24 designated Chinese firms, which hold exclusive access to the encryption algorithms needed to comply with WAPI. This appears to be an example of mandating a locally developed standard for protectionist purposes." (Parentheses in original.)

The report adds that "China's telecommunications ministry, MII, has restricted the use of CDMA technology at 450 MHz and recently issued Document No. 15, which proposes that only SCDMA (a Chinese-developed standard) and other technology incorporating China-controlled IPR be permitted as rural communications solutions. MII’s apparent rejection of CDMA at 450 MHz on technical grounds does not appear justified, given the success this technology has had at this frequency in numerous markets."

The Telecommunications Industry Association (TIA) raised the matter of the PR China's discriminatory technology standards in its comment [13 pages in PDF] to the USTR.

With respect to standards setting in Korea, the report states that "there are two areas where proposals to mandate standards will potentially exclude U.S. equipment and service suppliers: a proposal to mandate a software interface standard for mobile wireless Internet services (WIPI, or wireless internet platform for interoperability); and a mandate to develop a single standard (as yet undefined) for ``portable´´ (i.e. limited mobility) wireless Internet services, licenses for which are expected to be issued this year, in the 2.3 GHz range." (Parentheses in original.)

The USTR report further states that "it appears that the standards process, under the influence of the government-funded research institute ETRI, is being manipulated to exclude foreign technologies and promote a technology developed by a particular Korean company."

ArrayComm raised the matter of Korea's WIPI in its comment [3 pages in PDF] to the USTR. See also, USTR web page with hyperlinks to all comments received by the USTR.

Next, the report identifies the high cost of completing calls onto mobile networks in many foreign countries. It specifically identifies France, Germany, the Netherlands, Greece, Australia, Japan, New Zealand, Peru, Switzerland, and Venezuela as the problem nations.

The report also states that "Commenters identified the following countries as not adequately addressing the problems of excessive pricing and lengthy provisioning times for the supply of leased lines to competitive suppliers of telecom services: Australia, Germany, France, PR China, New Zealand (late filing), Singapore, and Switzerland. In addition, India was cited for inadequately ensuring access to submarine cable capacity."

Finally, the report identifies the lack of an independent regulator in PR China, Colombia, Germany, France, Japan, Mexico, and South Africa.

The report identifies several things that can limit regulatory independence. First, it states that "In many countries, incumbent operators are perceived as enjoying favorable treatment, either through explicit regulatory decisions, or implicitly through regulatory/Ministry inaction in the face of anticompetitive conduct. This problem is most acute in countries that maintain some level of government ownership in the dominant telecommunications operator (e.g. Germany, France, China, Japan), but cases of fully private incumbents enjoying similar privileges (e.g. Mexico) are not uncommon." (Parentheses in original.)

The report also cites the combination of industry promotion and regulation in one entity. For example, "In both China and Japan, a single ministry oversees both regulatory and industry promotion functions, in the context of markets dominated by government-owned firms. This confluence of interests calls into question how the MII (China) and MPHPT (Japan) can oversee the market in an impartial manner." (Parentheses in original.)

Finally, the report discusses the PR China's capital requirements. It states that "China's capital requirements ($240 million) for Foreign Invested Telecom Enterprises (FITEs) engaged in basic telecommunications services appear unjustifiably high and pose a significant barrier to market entry. USTR will continue to advocate lowering these barriers as in China’s interest to attract foreign investment." (Parentheses in original.)

4/8. On April 2, the Office of the U.S. Trade Representative (USTR) released the draft U.S. Morocco Free Trade Agreement (FTA). See especially, intellectual property rights chapter [PDF], electronic commerce chapter [PDF], and telecommunications chapter [PDF].

On April 8, the USTR released copies of the reports that it has received from its thirty-two trade advisory committees regarding the recently completed FTA. See especially, report [PDF] of the Industry Functional Advisory Committee (IFAC) on Intellectual Property Rights, report [PDF] of the IFAC on Electronic Commerce, and report [PDF] of the Industry Sector Advisory Committee (ISAC) on services. The FTA was praised by these and other committees, but criticized by the labor advisory committee. See also, USTR release [PDF].

The IFAC on Intellectual Property Rights wrote that this FTA contains "the most advanced IP chapter in any FTA negotiated so far ... making this truly a precedential agreement for future FTAs".

The IFAC on Electronic Commerce wrote that "the e-commerce chapter introduces the concept of ``digital products´´, which reflects digital product development in the last two decades and the need for predictability in how digital products are treated in terms of trade."

It added that "The chapter assures the non-discriminatory treatment of digital products, addresses the valuation of physically delivered digital products, and provides commitments to cooperate on electronic commerce policy. In the Morocco Agreement, the parties agreed not to impose customs duties on digital products transmitted electronically."

The ISAC on Services wrote in its report that the FTA "ensures full market access and national treatment for computer and related services by taking no reservations in this important sector for the U.S. information technology industry."

It also stated that the FTA "includes important language on electronic commerce. The chapter maintains and slightly expands the standards for trade in electronic commerce established under previous agreements. As with previous Agreements, the Morocco FTA includes the concept of ``digital products´´; prevents the application of customs duties on electronically delivered digital products; assures the non-discriminatory treatment of digital products delivered physically or electronically; addresses the valuation of physically delivered digital products; and provides commitments to cooperate on electronic commerce policy."

Finally, it states that the FTA chapter on telecommunications "is very similar to previous strong chapters in Singapore and Australia. It covers access to and use of the public telecommunications network for the provision of services. It includes all providers of public telecommunications services, with a focus on the major suppliers of those services. The chapter includes several important ``WTO-plus´´ obligations for major suppliers, including resale, provisioning of leased circuits and co-location. The chapter also fosters independence of regulatory bodies by disallowing a financial interest in any supplier of public telecommunications services by the regulator."

4/8. Sen. Conrad Burns (R-MT) introduced S 2315, an untitled bill to amend the Open-Market Reorganization for the Betterment of International Telecommunications (ORBIT) Act to extend the deadline for INTELSAT's initial public offering from June 30, 2004 to December 31, 2005. Burns argued that "the market is simply not conducive for a successful IPO".

Sen. Burns (at left) introduced S 376, the ORBIT Act, in February of 1999. The Congress passed the bill, and President Clinton signed it, in 2000. It then became Public Law No. 106-180. It is codified at 47 U.S.C. § 763.

The present bill was referred to the Senate Commerce Committee. Sen. Burns is a member of the Committee, and the Chairman of it Subcommittee on Communications.

The ORBIT Act mandates the privatization of INTELSAT, which has already occurred. The Act also sets a deadline of December 31, 2002 for an initial public offering of stock in INTELSAT. That deadline has already been extended. Sen. Burns now seeks legislation allowing for a further extension.

The bill is very short. It provides that "Section 621(5)(A)(i) of the Communications Satellite Act of 1962 (47 U.S.C. 763(5)(A)(i)) is amended--
  (1) by striking ``December 31, 2003,´´ and inserting ``June 30, 2005,´´; and
  (2) by striking ``June 30, 2004;´´ and inserting ``December 31, 2005;´´."

Sen. Burns stated in the Senate that "Congress passed the ORBIT Act to enhance competition in the global satellite communications market. I am proud to say that ORBIT has achieved all of its objectives. Since its enactment, the FCC has found that positive change has occurred in the satellite services market as a result of the ORBIT Act. The FCC has declared that the pro-competitive objectives of the ORBIT Act have been achieved--including the complete transformation of Intelsat from what used to be a highly bureaucratic, intergovernmental organization into a fully privatized, U.S. licensed company that is headquartered and operates in the U.S., and is now subject to U.S. laws and U.S. regulations." See, the most recent Federal Communications Commission (FCC) annual report [18 pages in PDF] on the ORBIT Act, released on June 16, 2003.

"The only piece of unfinished business from the ORBIT Act that remains is the requirement that an IPO occur by a date certain", said Sen. Burns. "I have always had serious reservations with the very idea that Congress would impose a date certain for an IPO, rather than letting market forces determine the appropriate time for such an event. If I had my preference, we would get rid of the mandatory IPO requirement altogether. But since the Intelsat IPO deadline is June 30, 2004, we don't have a lot of time to get back into the substance of that issue."

Sen. Burns added that "the market is simply not conducive for a successful IPO" and that "major investors in Intelsat stand to lose hundreds of millions of dollars because the telecom market for IPOs is far from ideal". See, Congressional Record, April 8, 2004, at pages S4053-4.

4/9. American Airlines (AA) stated in a release that "in June 2002, at the request of the Transportation Security Administration (TSA), some passenger travel data was turned over by an American Airlines vendor to four research companies vying for contracts with TSA".

AA added that "American authorized passenger names records (PNRs) held by its vendor, Airline Automation Inc., to be given directly to the TSA. Instead, AAI gave the data to four vendors. American agreed to provide one week’s worth of PNRs -- approximately 1.2 million records -- to the TSA because of the heightened interest in aviation security at the time and American's desire to ensure its passenger and crew safety following the unprecedented attacks on the World Trade Center and Pentagon only nine months earlier." (Parentheses in original.)

JetBlue also provided passenger data to the TSA. On February 20, 2004, the Department of Homeland Security's (DHS) Privacy Office released a report [10 pages in PDF] titled "Report to the Public on Events Surrounding jetBlue Data Transfer". The report concluded that no violation of the Privacy Act by the Transportation Security Administration (TSA) occurred in connection with the transfer of airline passenger data by JetBlue.

See, story titled "DHS Finds No Privacy Act Violation In Connection With JetBlue Transfer of Passenger Data" in TLJ Daily E-Mail Alert No. 841, February 23, 2004, and story titled "EPIC Submits Privacy Complaint To FTC Regarding JetBlue" in TLJ Daily E-Mail Alert No. 744, September 23, 2003.

4/8. The Federal Communications Commission (FCC) fined Clear Channel $495,000 for broadcasting an indecent Howard Stern program. Specifically, the FCC issued a Notice of Apparent Liability for Forfeiture (NAL) [20 pages in PDF] against Clear Channel Communications, Inc., for apparently willfully broadcasting over six radio stations indecent material on the Howard Stern Show. See, FCC release.

The FCC's method of calculating the $495,000 is notable. First, it assessed the maximum $27,500 penalty for each apparent indecency violation, which it has done in the past. Second, it multiplied this by the number of radio stations. Third, it multiplied this by three -- the number of indecent utterances on the program in question.

This per utterance method of calculating fines is new for the FCC. The FCC wrote in the NAL that "We believe that, under the specific circumstances at issue here, it is appropriate to treat the statements by each of the individuals as two separate utterances and therefore two separate violations, contrary to our more traditional approach of treating a specific program or program segment as indecent. Consequently, we conclude that there are three (3) apparent violations of the Commission’s indecency rules for each of the captioned stations that aired this material."

The House is in recess until Monday, April 19, 2004.

The Senate is in recess until April 19, 2004.

The Supreme Court is in recess until April 19, 2004.

10:00 AM - 12:00 NOON. The American Enterprise Institute (AEI) will host a panel discussion titled "The Development of European Regulatory Agencies: What the European Union Should (or Shouldn’t) Learn from the American Experience". The speakers will be Judge Stephen Williams (U.S. Court of Appeals) and Greg Sidak (AEI). Location: AEI, 12th floor, 1150 17th St., NW.

12:00 NOON. The National Cyber Security Partnership (NCSP) will host an event titled "Corporate Governance Media Roundtable" It will release a report titled "Information Security Governance: A Call to Action". The speakers will include Amit Yoran (Director of the Department of Homeland Security's National Cyber Security Division, Orson Swindle (Federal Trade Commission), Bill Connor (Ch/CEO of Entrust), and Art Coviello (P/CEO of RSA Security). For more information, contact Teresa Dingboom at teresa.dinboom@dittus.com or 202 715-1561, or the DHS at 202 282-8010. Lunch will be served. Location: National Press Club, Murrow Room, 529 14th St. NW, 13th Floor.

2:00 PM. The Electronic Retailing Association will hold a press conference regarding the launch of a "protection program". For more information, contact Molly Alton at 703 908-1020. Location: National Press Club, Zenger Room, 529 14th St. NW, 13th Floor.

Day one of a three day conference hosted by the National Institute of Standards and Technology (NIST), National Institutes of Health (NIH), Internet2, USENIX, and OASIS titled "Public Key Technology R&D Workshop". See, notice and conference website. The price to attend is $105. Location: NIST, Gaithersburg, MD.

Deadline to submit reply comments to the Federal Communications Commission (FCC) regarding its Third Report and Order and Second Further Notice of Proposed Rulemaking pertaining to the administration of the FCC's e-rate subsidy program for schools and libraries. See, notice in the Federal Register, February 10, 2004, Vol. 69, No. 27, at Pages 6229 - 6238. This item is FCC 03-323 in Docket No. 02-6. The FCC adopted this item at its December 17, 2003 meeting. See, FCC release [PDF] describing this item. The FCC released the text of this item on December 23, 2003.

Deadline to submit comments to the Federal Communications Commission (FCC) in response to the Department of Justice's (DOJ) petition for a rulemaking proceeding [PDF] regarding surveillance of voice over internet protocol (VOIP), regulation of VOIP related technologies, the Communications Assistance for Law Enforcement Act (CALEA), and related issues. This is RM 10865. See, FCC notice [PDF] (DA 04-700).

Deadline to submit comments to the Federal Trade Commission (FTC) in response to its notice in the Federal Register requesting comments regarding various regulations and reports required by the CAN-SPAM Act. Several provisions in the "Controlling the Assault of Non-Solicited Pormography and Marketing Act of 2003" (CAN-SPAM Act) instruct the FTC to write regulations implementing the Act. Other provisions require the FTC to prepare reports for the Congress. See, S 877, which is now Public Law No. 108-187. See also, story titled "FTC Announces CAN-SPAM Act Rulemaking" in TLJ Daily E-Mail Alert No. 855, March 15, 2004. The notice is published in the Federal Register, March 11, 2004, Vol. 69, No. 48, at Pages 11775-11782. See also, FTC release summarizing the notice.

Deadline to submit comments to the Copyright Office regarding its rule making proceeding "to amend its regulations governing the content and service of certain notices on the copyright owner of a musical work. The notice is served or filed by a person who intends to use a musical work to make and distribute phonorecords, including by means of digital phonorecord deliveries, under a compulsory license." See, notice in the Federal Register, March 11, 2004, Vol. 69, No. 48, at Pages 11566-11577.

The Copyright Office's interim regulations, announced on March 11, specifying notice and recordkeeping requirements for use of sound recordings under two statutory licenses under the Copyright Act, take effect. See, notice in the Federal Register, March 11, 2004, Vol. 69, No. 48, at Page 11515-11531.

Day two of a three day conference hosted by the National Institute of Standards and Technology (NIST), National Institutes of Health (NIH), Internet2, USENIX, and OASIS titled "Public Key Technology R&D Workshop". See, notice and conference website. The price to attend is $105. Location: NIST, Gaithersburg, MD.

12:15 PM. The Federal Communications Bar Association's (FCBA) Cable Practice Committee will host a brown bag lunch. The speaker will be Ken Ferree, Chief of the Federal Communications Commission's (FCC) Media Bureau. RSVP to Quyen Truong at ttruong@dowlohnes.com. Location: Dow Lohnes & Albertson, 1200 New Hampshire Ave., NW, Eighth Floor.

Day three of a three day conference hosted by the National Institute of Standards and Technology (NIST), National Institutes of Health (NIH), Internet2, USENIX, and OASIS titled "Public Key Technology R&D Workshop". See, notice and conference website. The price to attend is $105. Location: NIST, Gaithersburg, MD.

9:30 AM. The Federal Communications Commission (FCC) will hold a meeting. See, agenda [PDF]. The event will be webcast. Location: FCC, 445 12th Street, SW, Room TW-C05 (Commission Meeting Room).

9:30 AM - 12:00 NOON. The WRC-07 Advisory Committee's Informal Working Group 4: Broadcasting and Amateur Issues will meet. See, FCC notice [PDF]. Location: Shaw Pittman, 2300 N Street, NW.

9:30 AM. The U.S. Court Appeals (DCCir) will hear oral argument in AT&T v. FCC, No. 03-1035. Judges Edwards, Tatel and Sentele will preside. Location: Prettyman Courthouse, 333 Constitution Ave.

12:00 NOON. The Progress & Freedom Foundation (PFF) will host a luncheon titled "Should Spectrum Be Public or Private?". The speakers will be Stuart Benjamin (Duke University Law School), Randolph May (PFF), Peter Pitsch (Intel), and Stuart Buck (Kellogg Huber). See, notice and registration page. Location: Room 192, Dirksen Building, Capitol Hill.

12:00 NOON - 1:30 PM. The Open Source and Industry Alliance (OSAIA) will host a luncheon briefing on open source software. The speakers will be representatives of IBM, Novell, OSAIA, the Open Source Development Lab, and Red Hat. RSVP to Pat Steckler (OSAIA) at 202 783-2942. Location: Room B-354, Rayburn Building, Capitol Hill.

12:30 PM. The Federal Communications Bar Association's (FCBA) Diversity Committee will hold a brown bag lunch. Natalie Ludaway will speak on "the benefits of launching a legal career at a small law firm and establishing and maintaining a diverse client base". For more information, contact Joy Ragsdale at 202 261-1427 or jragsdale@opc-dc.gov. RSVP by April 12, 2004 to Angela Bushnell at at 202 434-9121 or abushnell@leftwichlaw.com. Location: Leftwich & Ludaway, 1401 New York Ave., NW.

2:00 - 4:00 PM. The WRC-07 Advisory Committee's Informal Working Group 2: IMT-2000 and 2.5 GHz Sharing Issues will meet. See, notice [PDF]. Location: FCC, 445 12th Street, SW, South Conference Room (6th Floor, Room 6-B516).

8:30 AM - 4:30 PM. The New America Foundation will host a conference titled "Pervasive Connectivity: How Unlicensed Spectrum Will Help The World Go Wireless". The event is free. RSVP to Matt Barranca at barranca@newamerica.net or 202 986-2700. See, notice. Location: National Guard Association of the United States, One Massachusetts Ave, NW.

4/7. Sen. John Breaux (D-LA) introduced S 2298, the "Employee Stock Ownership Plan Promotion and Improvement Act of 2004". It was referred to the Senate Finance Committee, of which Sen. Breaux is a member.

3/31. The House Judiciary Committee's Subcommittee on Courts, the Internet, and Intellectual Property amended and approved, by voice vote, HR 3754, the "Fraudulent Online Identity Sanctions Act".

3/31. The House Judiciary Committee's Subcommittee on Courts, the Internet, and Intellectual Property approved HR 4077, the "Piracy Deterrence and Education Act of 2004". This is the successor bill to HR 2514.

3/31. The House Judiciary Committee's Subcommittee on Courts, the Internet, and Intellectual Property amended and approved, by voice vote, HR 3632, the "Anticounterfeiting Amendments of 2003".

4/2. Phillip Bond, Under Secretary of Commerce for Technology, gave a speech titled "A Tale of Two Newspapers: Challenges to Nanotechnology Development and Commercialization".

Bond first reviewed a story published on March 29, 2004 in the Washington Post titled "Nanoparticles Toxic in Aquatic Habitat, Study Finds", and a story published on the same day in the Wall Street Journal that argued that public opposition to technology can arrest technological development. Bond cited the example of 19th Century Luddites.

He therefore encouraged persons involved in nanotechnology, including scientists, engineers, business executives, and venture capitalists, to engage in the public arena.

"We know that in our democratic system, the body politic is susceptible to the virus of fear", said Bond. "When the public catches a public policy cold virus, their elected representatives sneeze. Our democratic institutions are designed to be responsive to the public. To keep nanotechnology moving forward, we must prevent fear from taking hold among the public."

He also reviewed numerous governmental bodies that will play important roles in advancing, or impeding, nanotechnology in the U.S.

4/9. The U.S. Court of Appeals (9thCir) stayed its mandate in Brand X v. FCC pending the filing a petitions for writ of certiorari with the Supreme Court. The Federal Communications Commission's (FCC) and others filed motions requesting the stay.

4/9. The Federal Trade Commission (FTC) extended to April 20, 2004 the deadline to submit comments in response to its request for comments regarding a National Do Not E-mail Registry. Section 9 of S 877, the "Controlling the Assault of Non-Solicited Pormography and Marketing Act of 2003" (CAN-SPAM Act), requires the FTC to write a report to the Congress on establishing a nationwide Do Not E-Mail Registry. It is due by June 16, 2004. See, story titled "FTC Announces CAN-SPAM Act Rulemaking" in TLJ Daily E-Mail Alert No. 855, March 15, 2004. The notice (setting the original comment deadline of March 31, 2004) is published in the Federal Register, March 11, 2004, Vol. 69, No. 48, at Pages 11775-11782. See also, FTC release summarizing the notice. The notice (extending the deadline to April 20, 2004) is published in the Federal Register, April 9, 2004, Vol. 69, No. 69, at Pages 18851 - 18852.

4/9. The Department of Homeland Security (DHS) published a notice in the Federal Register that states that it is establishing a Data Integrity, Privacy, and Interoperability Advisory Committee. The notice also requests that applications for membership be submitted by April 30, 2004. See, Federal Register, April 9, 2004, Vol. 69, No. 69, at Page 18923.

4/9. The Office of the U.S. Trade Representative (USTR) released draft text of the Dominican Republic Free Trade Agreement (FTA). See, chapter [PDF] regarding broadcast or cable transmissions or retransmissions. See also, side letter [PDF] from the Dominican Republic (DR) regarding the unauthorized broadcasting of copyrighted materials, and side letter [PDF] from the DR regarding patents, and side letter [PDF] from the DR regarding telecommunications competition. This final letter states that "The Dominican Republic plans to continue to apply a development strategy for its telecommunications sector that fosters universal service, improves teledensity, and promotes competition -- objectives that are fully compatible with those of Chapter Thirteen of the Agreement. The chapter does not prescribe a single approach to regulation, but rather allows each Party a substantial degree of flexibility in determining how to meet the chapter's requirements."

4/8. The Federal Communications Commission (FCC) released a Memorandum Opinion and Order that affirms its $14,000 forfeiture penalty against Emmis Radio License Corporation for willfully broadcasting indecent material. See also, FCC release. In this proceeding the FCC record did not include an audio tape, transcript, or significant excerpt of the complained of radio broadcast. Commissioner Copps dissented, arguing that the fine was too small. See, Copps statement [PDF].