8/4. The Federal Communications Commission (FCC) adopted, but did not release, an Order on Reconsideration regarding multiple dwelling units (MDUs) and the Section 251 unbundling obligations of incumbent local exchange carriers (ILECs).

The FCC issued a short release describing this item, and four Commissioners wrote brief separate statements. The FCC's release states that this order "concludes that the fiber-to-the-home (FTTH) rules, which relieve the incumbent LECs from certain unbundling obligations, will apply to MDUs that are predominantly residential."

The FCC release further states that "concludes that determining what constitutes a predominantly residential MDU will be based on the dwelling's predominant use. For example, a multi-level apartment building that houses retail stores such as a drycleaner or a mini-mart would be predominantly residential, while an office building that contains a floor of residential suites would not. The Order further clarifies that a loop will be considered a FTTH loop if it is deployed to the minimum point of entry of a predominantly residential MDU, regardless of the ownership of the inside wiring."

The FCC released its triennial review order [576 pages in PDF] on August 21, 2003. However, it held meeting on February 20, 2003 at which it announced that it had adopted the yet to be written TRO. See, story titled "Summary of FCC Triennial Review Order" in TLJ Daily E-Mail Alert No. 725, August 25, 2003. See also, stories titled "FCC Announces UNE Report and Order", "FCC Order Offers Broadband Regulatory Relief", "FCC Announces Decision on Switching", "Commentary: Republicans Split On FCC UNE Order", and "Congressional Reaction To FCC UNE Order" in TLJ Daily E-Mail Alert No. 609, February 21, 2003.

The TRO addresses the Section 251 unbundling obligations of ILECs. Unbundled network elements (UNEs) are those portions of telephone networks that the ILECs, such as Verizon, must make available to competing carriers, such as AT&T and MCI WorldCom, seeking to provide telecommunications services. The Telecommunications Act of 1996 provides that ILECs must provide access to certain of their network elements at regulated rates.

47 U.S.C. § 251(c)(3) provides that ILECs have "The duty to provide, to any requesting telecommunications carrier for the provision of a telecommunications service, nondiscriminatory access to network elements on an unbundled basis at any technically feasible point on rates, terms, and conditions that are just, reasonable, and nondiscriminatory in accordance with the terms and conditions of the agreement and the requirements of this section and section 252 of this title. An incumbent local exchange carrier shall provide such unbundled network elements in a manner that allows requesting carriers to combine such elements in order to provide such telecommunications service."

Section 251(d)(2) requires the FCC, in establishing unbundling requirements, to "consider, at a minimum, whether ... the failure to provide access to such network elements would impair the ability of the telecommunications carrier seeking access to provide the services that it seeks to offer." The interpretation of the word "impair" has been central to the FCC's unbundling orders, and the Court opinions overturning them.

The TRO provided that for new builds, "An incumbent LEC is not required to provide nondiscriminatory access to a fiber-to-the-home loop on an unbundled basis when the incumbent LEC deploys such a loop to a residential unit that previously has not been served by any loop facility."

For overbuilds, the TRO provided that "An incumbent LEC is not required to provide nondiscriminatory access to a fiber-to-the-home loop on an unbundled basis when the incumbent LEC has deployed such a loop parallel to, or in replacement of, an existing copper loop facility," with certain exceptions.

FCC Commissioner Kathleen Abernathy wrote in a separate statement [PDF] that "When the Commission adopted the Triennial Review Order last year, we provided significant relief from unbundling obligations for next-generation fiber networks. In particular, the Order provided complete relief for the broadband capabilities of fiber-to-the-home (FTTH) deployments. This deregulatory action is already achieving its desired impact as carriers are accelerating plans to deploy fiber deeper in the network -- in many cases all the way to the customer. The Triennial Review Order inadvertently created a barrier to investment in some areas, however, by stating that multiple dwelling units (MDUs) were flatly ineligible for this unbundling relief. This Reconsideration Order corrects that anomaly and assures that mass market consumers will benefit from increased broadband deployment irrespective of whether they live in single family homes or in apartment buildings."

FCC Chairman Michael Powell wrote in a separate statement [PDF] that this order "clarifies unbundling rules as they apply to broadband services provided to these structures. It draws an administratively workable distinction between primarily residential multi-unit dwellings, and other, more commercial locations. By clarifying our unbundling rules as they apply to these situations, we restore the incentives of incumbent LECs to deploy broadband technology, particularly in our nation's cities."

FCC Commissioner Michael Copps, who opposed the FTTH provisions of the TRO last year, also dissented from this Order on Reconsideration. He wrote in a separate statement [PDF] that this order "means that small businesses located in buildings that also have residential apartments will henceforth be unable to enjoy the full panoply of competitive voice and data services. In most cases, small businesses in multi-tenant units that are ``primarily residential´´ will be left with one service option -- the incumbent carrier. By sweeping into today’s decision law offices, doctor’s offices, copy shops, stock brokers, real estate offices, dry cleaners, coffee shops, dentists' offices, grocery stores and other small retail and service businesses located on the ground floor of so many apartment buildings, the majority denies them the opportunities for cost savings and innovative services that come with having a competitive array of carriers to choose from. In cities like New York and Chicago and Washington, where residential buildings routinely include ground floor commercial tenants, whole swaths of downtown small businesses will find themselves ineligible for competitive wireline services."

FCC Commissioner Jonathan Adelstein concurred in part and dissented in part. He wrote in a separate statement [PDF] that this order is "vague and overbroad". He concurred "to the extent that it injects more symmetry to our treatment of residential consumers, whether they reside in single family homes or multi-tenant buildings (referred to as MDUs). Much as I supported unbundling relief for the deployment of fiber loops to single family homes in greenfield developments, I support similar relief for residential consumers in multi-tenant buildings."

However, he added that he dissents "in part because the Order fails to consider potential distinctions in the analysis of greenfield developments as compared with so-called brownfield developments, where providers are overbuilding their existing networks."

Michael Gallagher, head of the National Telecommunications and Information Administration (NTIA), issued a statement. "The President has called on the government to clear the regulatory hurdles that stand in the way of broadband deployment.  The Commission's action today creates the regulatory certainty necessary to speed the deployment of broadband to millions of Americans living in apartment buildings, and brings us closer to meeting the President's goal of universal and affordable broadband access by 2007."

This order is FCC 04-191 in CC Docket Nos. 01-338, CC 96-98, and CC 98-147.

8/4. The Federal Communications Commission (FCC) adopted, but did not release, a Report and Order (R&O) approving 13 applications for certification of digital output protection technologies and recording methods, including TiVo's application, under the FCC's broadcast flag rule. The FCC issued a short release describing this item.

On November 4, 2003, the FCC adopted and released a Report and Order and Further Notice of Proposed Rulemaking [72 pages in PDF]. It is also known as the broadcast flag order. That item is FCC 03-273 in MB Docket No. 02-230.

The broadcast flag order promulgated rules that include a broadcast flag mandate. A broadcast flag is digital code embedded into a digital broadcasting stream. It signals digital television (DTV) reception equipment to limit redistribution. For it to be effective, DTV equipment must give effect to a broadcast flag. Hence, this report and order contains technology mandates for equipment manufacturers. See, story titled "FCC Releases Broadcast Flag Rule" in TLJ Daily E-Mail Alert No. 772, November 5, 2003.

Subsequently, equipment and software makers submitted applications to the FCC, pursuant to the interim approval process for digital output protection technologies and recording methods established by the broadcast flag order, for certification of their technologies. See, for example, application [45 pages in PDF] of TiVo in MB Docket No. 04-63.

The Motion Picture Association of America (MPAA) submitted an opposition [PDF] to TiVo's application for its TiVoGuard technology on the grounds that it "fails to sufficiently protect against unauthorized redistribution ... because it does not include any distance-based limitations on transmissions of the content".

The FCC's release states that the present R&O "reiterates that the Commission's goal in the Broadcast Flag Order was to prevent the indiscriminate redistribution of digital broadcast television content. As such, the Order does not require proximity controls as an additional obligation where other reasonable constraints sufficiently limit the redistribution of content. Therefore, the Order does not require the use of localization constraints in connection with the SmartRight and TiVoGuard technologies since they employ different combinations of device limits, interactive device authentication, and affinity-based mechanisms to restrict redistribution."

FCC Commissioner Kevin Martin (at right) concurred in part and dissented in part. He wrote in a separate statement [PDF] to express concerns about two issues.

He wrote that "I am concerned that Tivo's technology does not include sufficient constraints. All of the other technologies requesting approval from us have adopted proximity controls or similar mechanisms to limit content redistribution outside the home at this time. I ultimately want to enable a person's digital networking environment to extend beyond the home. I fear, however, that we may be acting prematurely in concluding that Tivo's affinity controls are sufficient to protect against widespread redistribution. I therefore would have conditioned approval of Tivo's technology on adoption of proximity controls at this time, and continued to study whether its device limits and affinity controls provide adequate protection."

The FCC R&O also states that "sufficient evidence has been presented demonstrating that each digital output protection technology and recording method, except for DTCP over Bluetooth, is technically sufficient to adequately protect digital broadcast television content from indiscriminate redistribution."

The Digital Transmission Content Protection (DTCP) system was developed by five companies -- Intel, Hitachi, Matsushita, Sony and Toshiba. It is also know as 5C. It provides secure transmission of compressed content over electrical connections, such as to a computers and DVD players. See also, DTCP web site.

Martin also wrote that "I fear that the ``non-assert´´ clause in the DTCP adopter agreement could hinder competition and suppress innovation. We acknowledge in the Order that DTCP is the only publicly-offered output protection technology we approve that permits copying, and is ``therefore likely to become the primary´´ standard for the foreseeable future. As a result, anyone who wants to build products for this market must sign the DTCP license. Yet, the license requires that companies give up any intellectual property rights they have in the DTCP technology before signing. Therefore a party may have to choose between the lesser of two evils: either don’t participate in the relevant product market, or compete, but give up your intellectual property rights. I am concerned this result may be anti-competitive, may discourage future investment in intellectual property, and may generally be counter to good public policy."

Harris Miller, President of the Information Technology Association of America (ITAA), stated in a release that "This is an important clarification of the standards established in the broadcast flag proceeding. We applaud the agency's willingness to move beyond proximity as the basis for determining acceptable use of copyrighted digital broadcasts, and to recognize that content can be protected from copying in the Internet environment, in this case using authentication and encryption technologies. We expect this approach to yield more products and choices for consumers and larger markets for copyright owners."

This proceeding is titled "Digital Output Protection Technologies and Recording Method Certifications". This R&O is FCC-04-193 in MB Docket No. 04-55, 04-56, 04-57, 04-58, 04-59, 04-60, 04-61, 04-62, 04-63, 04-64, 04-65, 04-66, and 04-68. Susan Mort presented this item at the Commission meeting. She can be reached at 202 418-1043 or susan.mort@fcc.gov.

8/4. The Federal Communications Commission (FCC) adopted, but did not release, a Report and Order regarding conversion of the television broadcast system from analog technology to digital television. The FCC issued a short release [PDF] describing this item, and four Commissioners wrote brief separate statements.

FCC Chairman Michael Powell (at right) wrote in a separate statement [PDF] that the FCC adopts this item "most notably to set channel election and replication and maximization deadlines not only to bring consumers more over-the-air digital services, but to help usher in the beginning of the end of the DTV transition." He also restated the importance of completing the DTV transition: "the transition will recoup a significant amount of spectrum for first responder, public safety use and for innovative wireless broadband services".

The FCC release also states that the R&O eliminates, "for now, the simulcasting requirement to permit the transmission of additional innovative programming on broadcast digital channels".

FCC Commissioner Michael Copps wrote in a separate statement [PDF] that "what is missing here" is consideration of DTV broadcasters' public interest obligations.

FCC Commissioner Jonathan Adelstein also wrote in a separate statement [PDF] that the FCC should address public interest obligations. He wrote that "Parents are eager to know what opportunities the transition will bring to their children. Candidates should be able to use the Internet to quickly determine the political advertising landscape of a given station. Broadcasters should welcome the opportunity to showcase their local civic and public affairs coverage on their websites. The digital age offers tremendous opportunities for both broadcasters and the public. Multicasting and other new horizons in digital broadcasting should correspond to new horizons in serving the public interest."

FCC Commissioner Kevin Martin wrote in a separate statement [PDF] that "I look forward to taking what appears now to be last critical step: resolving the pending petitions for reconsideration regarding the extent of broadcasters’ ``must carry´´ rights in the digital world. I hope we address this issue soon."

This item is FCC-04-192. The FCC meeting agenda states that this is Docket No. 03-15. The FCC release states that this is Docket No. 03-14.

8/4. The Federal Communications Commission (FCC) adopted, but did not release, a Report and Order and Further Notice of Proposed Rulemaking (R&O and FNPRM) regarding reporting of network outages. The FCC issued a short release describing this item, and all five Commissioners wrote brief separate statements.

The FCC release states that "Under the new rules, both wireless and satellite providers will be subject, for the first time, to the Commission’s reporting requirements. Currently, only wireline and cable telephony communications providers are required to report."

The release also states that "the information collected as a result of these new rules is likely to be sensitive information that would cause substantial competitive harm and/or seriously undermine national defense and public safety if publicly disclosed. Thus, the Commission found that the information in outage reports will need to be protected from public disclosure to the full extent of the law."

FCC Commissioner Kathleen Abernathy wrote in a statement [PDF] that this includes "presumptively affording filed data confidentiality under Exception 4 of the Freedom of Information Act". However, FCC Commissioner Kevin Martin noted in a statement [PDF] that while the FCC is now mandating disclosure, "a voluntary reporting scheme could provide greater protection for the information we obtain, as the Critical Infrastructure Information Act of 2002 protects only information voluntarily submitted to the Department of Homeland Security (DHS)."

Steve Largent, P/CEO of the Cellular Telecommunications & Internet Association (CTIA) stated in a release "it is discouraging that the FCC would adopt a mandatory requirement to report network outages when a fully compliant voluntary effort is already under way and producing significant results ... The voluntary effort is a perfect example of the private-public partnership that the Administration has called for to protect our Nation’s critical infrastructure, over 80% of which is privately held. Voluntary wireless reporting is the most effective means of continually improving the reliability and security of wireless networks and also would have ensured protection of this data, as Congress intended when it passed the Critical Infrastructure Information Act. As the Department of Homeland Security and the wireless industry stated unequivocally in this proceeding, these reports can contain highly sensitive network data that in the wrong hands could leave systems vulnerable to attack and jeopardize homeland security."

The Homeland Security Act (HSA), which was enacted in 2002 to create the DHS, created an exemption to the Freedom of Information Act (FOIA), which is codified at 5 U.S.C. § 552, for certain information about critical infrastructures that is voluntarily provided. The relevant statutory provisions are found at §§ 211-215 of HR 5005 (107th Congress). These sections are collectively named that "Critical Infrastructure Information Act of 2002". President Bush signed the HSA on November 25, 2002. It became Public Law No. 107-296.

The critical infrastructure information (CII) exemption to the FOIA was enacted to incent companies to share information with the government that they would not otherwise share because of fears that their competitors or critics could obtain it under the FOIA. The rationale for the CII exemption is that the government needs information from the private sector to be able to combat cyber terrorism and other threats to critical infrastructures. Technology companies and some of the groups that represent them in Washington DC strongly supported creating this exemption.

FOIA exemption 4 (5 U.S.C. § 552(b)(4)) provides that the duty of the government to produce records under the FOIA "does not apply to matters that are ... trade secrets and commercial or financial information obtained from a person and privileged or confidential".

See also, statement [PDF] of Chairman Michael Powell, statement [PDF] of Commissioner Michael Copps, and statement [PDF] of Commissioner Jonathan Adelstein.

The Department of Homeland Security (DHS) issued a release in which it stated that "reporting of non-wireline service disruption information will promote National Security and Emergency Preparedness (NS/EP) telecommunications and will significantly enhance critical infrastructure protection efforts."

This item is FCC 04-188 in ET Docket No. 04-35.

8/4. The Federal Communications Commission (FCC) adopted, but did not release, a Notice of Proposed Rulemaking (NPRM) regarding the Emergency Alert System (EAS). The FCC issued a short release [PDF] describing this item, and all five Commissioners wrote brief separate statements.

The FCC release states that this NPRM seeks public comment "on how EAS can be improved to be a more effective mechanism for warning the American public of an emergency." However, neither the release, nor the Commissioners' statements reveal the issues on which the FCC seeks comments, including whether any information services should be subject to any EAS requirements.

FCC Commissioner Kathleen Abernathy wrote in a separate statement [PDF] that "As new communications technologies develop and become integrated into our society, it is important that we adapt our rules to ensure that the purposes of the EAS are being fulfilled."

FCC Commissioner Kevin Martin wrote in a separate statement [PDF] that the EAS "applies only to analog broadcast and cable television and its use is, in many instances, merely voluntary. We need either to update this system or to replace it with a more comprehensive and effective digital warning mechanism."

See also, statement [PDF] of FCC Chairman Michael Powell, statement [PDF] of Commissioner Michael Copps, and statement [PDF] of Commissioner Jonathan Adelstein.

This item is FCC 04-189 in EB Docket No. 04-296.

8/4. The Federal Communications Commission (FCC) Chairman Michael Powell discussed the Brand X case with reporters after the FCC's meeting on August 4, 2004. He said that he did not yet have a decision from the Office of the Solicitor General regarding petitioning the Supreme Court for writ of certiorari.

Powell also rebutted the arguments of Commissioner Michael Copps and Commissioner Jonathan Adelstein regarding the application of the Brand X case to the FCC's CALEA NPRM, which the FCC announced at the August 4 meeting.

Both Copps and Adelstein criticized the FCC's Notice of Proposed Rulemaking and Declaratory Ruling (NPRM & DR) in its Communications Assistance for Law Enforcement Act (CALEA) proceeding for failing to follow and address the October 6, 2003 opinion [39 pages in PDF] of the U.S. Court of Appeals (9thCir) issued in Brand X Internet Services v. FCC.

The FCC adopted a NPRM & DR regarding imposing CALEA obligations upon broadband internet access services, including voice over internet protocol (VOIP), and other information services. The FCC tentatively concluded that broadband internet access services are subject to CALEA requirements, and that managed or mediated VOIP services are also subject to CALEA requirements.

The CALEA imposes obligations upon telecommunications carriers, but not providers of information services, to design and modify their networks and equipment to make it easier for law enforcement entities to conduct wiretaps and other surveillance. The FCC based its tentative conclusions upon its interpretation of the CALEA's definition of "telecommunications services". This definition provides that telecommunications carrier includes "a person or entity engaged in providing wire or electronic communication switching or transmission service to the extent that the Commission finds that such service is a replacement for a substantial portion of the local telephone exchange service ...". That is, the FCC did not conclude that broadband internet access services fall within the regulatory category of telecommunications services, as the Department of Justice (DOJ) had argued in its petition for rulemaking [83 pages in PDF] to the FCC. Rather, the FCC concluded that broadband services are a replacement for a substantial portion of local telephone exchange service, and therefore, for the purpose of the CALEA only, broadband services are telecommunications services, and hence, subject to CALEA obligations.

See story titled "FCC Adopts NPRM and Declaratory Ruling Regarding CALEA Obligations" in TLJ Daily E-Mail Alert No. 953, August 5, 2004, and story titled "FCC Legislates Expansion of CALEA Obligations" in the same issue.

Adelstein wrote in his separate statement [PDF] that "Rather than seeking comment on the most stable footing for law enforcement’s request, the item seizes upon notable but thin distinctions between definitions in CALEA and the Communications Act. Moreover, the item does not acknowledge fully and seek comment on existing precedent that is in tension with the tentative conclusions here. For example, whether or not the Commission ultimately appeals the decision in the Ninth Circuit’s Brand X case, which concluded that broadband access via cable modem includes a ``telecommunications service,´´ this Notice’s failure to seek comment on a legal analysis that would comport with the Circuit’s holding is an unnecessary failing. For these reasons, I concur in the result, if not the full legal analysis behind the Commission’s tentative conclusions."

Copps wrote in his separate statement [PDF] "it strains credibility to suggest that Congress intended ``a replacement for a substantial portion of the local telephone exchange´´ to mean the replacement of any portion of any individual subscriber’s functionality. Capturing VoIP under the rubric of substantial replacement, ignoring the Ninth Circuit's decision in Brand X, and trying to slice and dice managed and non-managed services is not the way to proceed here."

After the August 4 meeting, Drew Clark of National Journal's Tech Daily asked Chairman Powell, "Have you gotten any indication from the Solicitor General's office that they are going to appeal the Brand X decision. And, what is your reaction to Commission Copps' statement that the CALEA order dances around the Brand X decision?"

Powell responded, "Well, no. I haven't got an indication from the Solicitor General. I mean, he makes that decision independently. And, we haven't yet received his decision on that."

On December 3, 2004, the FCC filed a Petition for Rehearing En Banc [19 pages in PDF] with the Court of Appeals in the Brand X case. See also, story titled "FCC Files Petition for Rehearing En Banc in Brand X Case" in TLJ Daily E-Mail Alert No. 793, December 5, 2003. On April 1, 2004 the Court of Appeals denied petitions for rehearing en banc. See, story titled "9th Circuit Denies Rehearing in BrandX v. FCC" in TLJ Daily E-Mail Alert No. 868, April 2, 2004. On April 5, 2004 cable companies filed a motion for a stay pending the filing of a petition for writ of certiorari in the Supreme Court. See story titled "Cable Companies Seek Stay of Brand X Mandate" in TLJ Daily E-Mail Alert No. 871, April 7, 2004. And, on April 7, 2004, the FCC filed a motion for stay pending its filing a petition for writ of certiorari with the Supreme Court.

Powell also discussed the Brand X case. He said, "I think the thing about the Brand X decision is mistaken. I mean, the criticality of the CALEA item that was of greatest concern with the FBI was that the Brand X decision only goes to internet services providers who are facilities based offerers. That is, if you are a cable company and you offer infrastructure, it said that a portion of that is telecom and a portion is information service. But something like Vonage, for example, which is a managed VOIP service, has no such infrastructure whatsoever. So, the real question isn't what -- for those things that are telecom services -- what will be held to be telecom services by the Commission. There is no issue whatsoever that CALEA applies. It is sort of a false argument. Nobody has any doubt that if something is a telecom service, it will be subject to CALEA."

Powell continued that "The concerning question is whether there will be services like information services, or other, that wouldn't meet that portion of the statute, but would they otherwise be subject to CALEA. And, that is what the substitutability argument in the CALEA order is about. It is about principally carriers who might not, either don't now, or might not, based on our future proceedings, be telecom carriers. And so, the question is can things that are not telecom carriers be subject to CALEA anyway, and that is what the term [inaudible phrase]."

Powell concluded, "So, Brand X doesn't, you know, we have an open VOIP NPRM, and those questions have not been prejudged yet. So, clearly, services could be classified in a way that wouldn't be satisfied by just that simply application of CALEA in that way."

More on Brand X. On March 14, 2002, the FCC adopted a Declaratory Ruling and Notice of Proposed Rulemaking [75 pages in PDF]. The Declaratory Ruling (DR) component of this item 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." This item is FCC 02-77 in Docket No. 00-185 and Docket No. 02-52. See also, March 14, 2002 FCC release.

Brand X, EarthLink, the State of California, and the Consumer Federation of America filed petitions for review of the FCC DR with the Court of Appeals in which they argued that cable modem service is both an information service and a telecommunications service, and is therefore subject to regulation on a common carriage basis. That is, they argue that cable broadband providers must be required to let other internet service providers (ISPs) use their facilities.

On October 6, 2003, a three judge panel of the Court of Appeals issued its opinion [39 pages in PDF] (which is also published at 345 F.3d 1120) vacating the FCC's declaratory ruling that cable modem service is an information service, and that there is no separate offering as a telecommunications service. The Court of Appeals wrote that its opinion was solely a matter of stare decisis. That is, it wrote that it was bound by its previous opinion in AT&T v. City of Portland, 216 F.3d 871 (2000).

See, story titled "9th Circuit Vacates FCC Declaratory Ruling That Cable Modem Service is an Information Service Without a Separate Offering of a Telecommunications Service" in TLJ Daily E-Mail Alert No. 754, October 7, 2003; and story titled "Reaction to 9th Circuit Opinion in Brand X Internet Services v. FCC" in TLJ Daily E-Mail Alert No. 756, October 9, 2003.

The House and Senate are in recess through September 6.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Sony Electronics, Inc., et al. v. Soundview Technologies, Inc., a patent infringement and antitrust case involving V-Chip parental television control technology. This is App. Ct. No. 04-1057, an appeal from the U.S. District Court for the District of Connecticut, No. 3:00cv754(JBA), Judge Janet Arterton presiding. See, opinion published at 157 F. Supp. 2d 180 (2001), opinion granting summary judgment of non-infringement in favor of Sony and other television manufacturers, published at 225 F. Supp. 2d 164 (2002), and August 28, 2003 opinion [8 pages in PDF] granting plaintiffs' motion for summary judgment on Soundview's antitrust and unfair trade practices counterclaims. Location: Courtroom 402, 717 Madison Place, NW.

2:30 PM. The U.S. Court of Appeals (FedCir) will hear oral argument in Irdeto Access v. Echostar, No. 04-1154. Location: Courtroom 402, 717 Madison Place, NW.

1:00 - 4:00 PM. The DC Bar Association will host a continuing legal education (CLE) program titled "USA PATRIOT Act Primer". The speakers will include Sharie Brown (Foley & Lardner). See, notice. Prices vary from $80 to $95. For more information, call 202 626-3488. Location: D.C. Bar Conference Center, B-1 Level, 1250 H Street, NW.

EXTENDED TO OCTOBER 8. Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its public notice (DA 04-1690) requesting public comments on constitutionally permissible ways for the FCC to identify and eliminate market entry barriers for small telecommunications businesses and to further opportunities in the allocation of spectrum based services for small businesses and businesses owned by women and minorities. See, notice in the Federal Register, June 22, 2004, Vol. 69, No. 119, at Pages 34672 - 34673. See also, notice of extension [PDF].

Deadline to submit comments to the Federal Communications Commission (FCC) in response to its notice of proposed rulemaking (NPRM) regarding the process for designation of eligible telecommunications carriers (ETCs) and the FCC's rules regarding high-cost universal service support. This NPRM is FCC 04-127 in Docket No. 96-45. See, notice in the Federal Register, July 7, 2004, Vol. 69, No. 129, at Pages 40839 - 40843.

Deadline to submit comments to the Federal Communications Commission (FCC) in response to its notice of proposed rulemaking (NPRM) regarding the rechannelization of portions of the 17.7-19.7 GHz band. This NPRM is FCC 04-77 in WT Docket No. 04-143. See, notice in the Federal Register, July 7, 2004, Vol. 69, No. 129, at Pages 40843 - 40850.

Deadline to submit comments to the Office of the U.S. Trade Representative (USTR) regarding its Special 301 out of cycle review of Israel and other nations. Section 182 of the Trade Act of 1974, which is codified at 19 U.S.C. § 2242, requires the USTR to identify countries that deny adequate and effective protection of intellectual property rights or deny fair and equitable market access to U.S. persons who rely on intellectual property protection. This is also referred to as the Special 301 provision. See, notice in the Federal Register, July 13, 2004, Vol. 69, No. 133, at Pages 42077-42078.

10:00 AM. 2:30 PM. The U.S. Court of Appeals (FedCir) will hear oral argument in Business Object v. Microstrategy, No. 04-1009. Location: Courtroom 203, 717 Madison Place, NW.

Extended deadline to submit comments to the Federal Communications Commission (FCC) regarding its proceeding titled "In the Matter of Review of the Commission's Broadcast and Cable Equal Employment Opportunity Rules and Policies". This is MM Docket No. 98-204. See, notice of extension [PDF].

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

12:00 NOON. The House Armed Services Committee (HASC) will hold a hearing on the report of the National Commission on Terrorist Attacks Upon the United States, which is also known as the 9-11 Commission. Thomas Kean (Chairman of the 9-11 Commission) and Lee Hamilton (Vice Chairman) will testify. Location: Room 2118, Rayburn Building.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its further notice of proposed rulemaking (FNPRM) regarding Aviation Radio Service. This FNPRM is FCC 03-238 in WT Docket No. 01-289. See, notice in the Federal Register, April 12, 2004, Vol. 69, No. 70, at Pages 19140 - 19147.

Deadline to submit comments to the Federal Communications Commission (FCC) regarding reserve prices, minimum opening bids, and other auction procedures for the FCC's broadband PCS spectrum auction (Auction No. 58), which is scheduled to commence on January 12, 2005. See, FCC Public Notice [PDF] (DA 04-2451).

9:00 AM The House Armed Services Committee (HASC) will hold a hearing on the report of the National Commission on Terrorist Attacks Upon the United States, which is also known as the 9-11 Commission. Stephen Cambone (Under Secretary of Defense for Intelligence) and others will testify. Location: Room 2118, Rayburn Building.

3:00 PM The House Armed Services Committee (HASC) will hold a hearing on the report of the National Commission on Terrorist Attacks Upon the United States, which is also known as the 9-11 Commission. Location: Room 2118, Rayburn Building.

Deadline to submit comments to the Library of Congress in response to its notice of proposed rulemaking (NPRM) regarding amendments its regulations to provide for the reporting of uses of sound recordings performed by means of digital audio transmissions pursuant to statutory license for the period October 28, 1998, through March 31, 2004. See, notice in the Federal Register, July 13, 2004, Vol. 69, No. 133, at Pages 42007 - 42010.

8/5. The Federal Trade Commission (FTC) released a report [170 pages in PDF] titled "Consumer Fraud in the United States: An FTC Survey". See also, FTC release.

8/5. President Bush gave a campaign speech in Columbus, Ohio in which he discussed education and training. He stated that "We must make sure that the Internet is in classrooms so that the free flow of information is vibrant and well. The broadbrand technology initiative of mine is essential to making sure information flows into our schools. We want to make sure the high school diploma means something. There's more work to do. We want to make sure the community colleges are vibrant."

8/5. The U.S. Patent and Trademark Office (USPTO) issued a notice [PDF] titled "All Electronic Copies of Patent Application Records Will Now Be Provided as Certified Copies in Electronic Form". This notice states that "Effective July 30, 2004, all copies of patent documents purchased under 37 CFR 1.19 and produced from IFW will be provided only as electronic files, with an imaged certification statement included as part of a digitally signed PDF (portable document format) file containing TIFF (tag image file format) images of the document pages. These electronic files may be downloaded from the USPTO website or provided by the USPTO on compact disc. The electronic files are digitally signed by the USPTO for authenticity and integrity, and cannot be undetectably modified. As mentioned above, all copies purchased pursuant to 37 CFR 1.19 and produced from IFW will be produced only as certified copies. Uncertified copies may be downloaded under the USPTO’s Public PAIR system."

8/4. The Federal Communications Commission's (FCC) Homeland Security Policy Council presented a report [20 pages of PDF slides] at the FCC's meeting of August 4, 2004 regarding the FCC's regulatory, outreach, and partnership initiatives in support of homeland security. See also, FCC release [PDF], statement [PDF] of FCC Chairman Michael Powell, and statement [PDF] of Commissioner Michael Copps.

8/3. Microsoft announced that it has reached a settlement of a class action lawsuit filed in state court in New Mexico alleging that Microsoft violated New Mexico's antitrust and unfair competition laws. See, release.

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