8/24. Opponents of S 2560, the "Inducing Infringement of Copyrights Act of 2004", sent a proposed alternative version of S 2560 to the Senate Judiciary Committee. At the Committee's hearing on July 22, 2004, Sen. Orrin Hatch (R-UT) and Sen. Patrick Leahy (D-VT), pressured opponents and critics of the bill to submit their recommendations for how legislation should be written to deal with large scale copyright infringement over peer to peer (P2P) networks.

The opponents' proposal would nominally create a new remedy for inducement of infringement. However, it would set standards and create exceptions that would make it all but impossible for any copyright holder to obtain any meaningful relief in an action for inducement of infringement. The proposal may have been submitted with the expectation that it would serve as a first negotiating position, rather than with the expectation that it would be enacted as written.

Sen. Hatch and Sen. Leahy are the Chairman and ranking Democrat on the Senate Judiciary Committee. They are also two of the sponsors of S 2560. These two Senators and others introduced S 2560 on June 22, 2004 in reaction to infringement conducted on P2P systems, and the music industry copyright holders' failure to obtain judicial relief under the Copyright Act, based upon theories of vicarious infringement, in their cases against Grokster and Streamcast.

On April 25, 2003, the U.S. District Court (CDCal) issued its opinion in MGM v. Grokster holding that Grokster's and Streamcast's P2P systems do not contributorily or vacariously infringe the copyrights of the holders of music and movie copyrights. See also, story titled "District Court Holds No Contributory or Vicarious Infringement by Grokster or Streamcast P2P Networks" in TLJ Daily E-Mail Alert No. 650, April 28, 2003.

The Committee held its hearing on S 2560 on July 22, 2004, just before the beginning of the current recess. See, story titled "Senate Judiciary Committee Holds Hearing on Inducement Bill" in TLJ Daily E-Mail Alert No. 963, August, 20, 2004.

Also, on August 19, 2004 the U.S. Court of Appeals (9thCir) issued its opinion [26 pages in PDF] in MGM v. Grokster, affirming the District Court. See, story titled "9th Circuit Holds No Vicarious Infringement in Grokster Case" TLJ Daily E-Mail Alert No. 963, August 20, 2004.

The entities that submitted the alternative language include incumbent local exchange carriers (ILECs), and their trade group, interexchange carriers (IXCs) and groups representing internet service providers, libraries, and consumer electronics manufacturers.

The entities that signed a letter of support for the proposal include, in alphabetical order, the American Association of Law Libraries (AALL), American Library Association (ALA), Association of Research Libraries (ARL), BellSouth, Computer & Communications Industry Association (CCIA), Consumer Electronics Association (CEA), Consumer Electronics Retailers Coalition (CERC), DigitalConsumer.org, Digital Future Coalition (DFC), Home Recording Rights Coalition (HRRC), Public Knowledge, SBC, U.S. Internet Industry Association, U.S. Internet Service Provider Association, U.S. Telecom Association (USTA), Verizon, and WorldCom.

The opponents' proposal would title the bill "Discouraging Online Networked Trafficking Inducement Act of 2004". Although, except in the title, it does not use the word inducement, or any variation.

The basic clause in the opponents' proposal would provide that "Whoever actively distributes in commerce a computer program that is specifically designed for use by individuals to engage in the indiscriminate, mass infringing distribution to the public of copies or phonorecords of copyrighted works over digital networks, with the specific and actual intent to reap financial gain by encouraging such individuals to engage in such indiscriminate, mass infringing distribution, shall be liable as an infringer."

In contrast, the basic clause of S 2560 is simple, and without built in exceptions and limitations. It would provide that "Whoever intentionally induces any violation ... shall be liable as an infringer".

The opponents' proposal then provides further obstacles to copyright holders by imposing several necessary conditions for a finding of "specific and actual intent", and several exemptions. It would also limit the recovery of damages.

The group of entities that submitted this proposal do not support the notion of creating a new cause of action for inducing infringement. They were pressured into submitting an alternative proposal by the sponsors of S 2560. Hence, it is to be expected that their proposal would merely create an illusory remedy for inducement.

These entities, to varying degrees support a weakening of copyright protections, not an expansion of copyright protections. For example, on the same day that Sen. Hatch and Sen. Leahy introduced S 2560, several Representatives and entities held a press conference regarding HR 107, the "Digital Media Consumer Rights Act", a bill that would weaken the anti-circumvention provisions of the Digital Millennium Copyright Act. See, story titled "Chairman Barton Says Commerce Committee Will Mark Up Boucher Doolittle Bill in July" in TLJ Daily E-Mail Alert No. 924, June 23, 2004.

These entities organized into the group named the Personal Technology Freedom Coalition (PTFC). The list of entities that announced their support for HR 107 overlaps significantly with the entities that just submitted the alternative to S 2560. See, list of members of the PTFC.

If the Senate Judiciary Committee does pass S 2560, it is possible that it will not be in its current form. It may be amended to include definitions, limitations and exemptions. While the Committee will not pass the just submitted alternative proposal, this proposal informs the Committee of the concerns of these opponents of S 2560. Some of the concepts embodied in the proposal may be incorporated into S 2560 as it works its way through the legislative process.

8/24. Numerous opponents of S 2560, the "Inducing Infringement of Copyrights Act of 2004", submitted a proposed alternative version of the bill, which they title the "Discouraging Online Networked Trafficking Inducement Act of 2004".

Currently, 17 U.S.C. § 501 defines infringement of copyrights. For example, subsection (a) provides, in part, that "Anyone who violates any of the exclusive rights of the copyright owner as provided by sections 106 through 121 or of the author as provided in section 106A(a), or who imports copies or phonorecords into the United States in violation of section 602, is an infringer of the copyright or right of the author, as the case may be."

Hatch Leahy Bill. S 2560 is a short and simple bill. It would amend § 501 by adding a new subsection (g), that would provide, in full, as follows:

  "(g)(1) In this subsection, the term `intentionally induces' means intentionally aids, abets, induces, or procures, and intent may be shown by acts from which a reasonable person would find intent to induce infringement based upon all relevant information about such acts then reasonably available to the actor, including whether the activity relies on infringement for its commercial viability.
  (2) Whoever intentionally induces any violation identified in subsection (a) shall be liable as an infringer.
  (3) Nothing in this subsection shall enlarge or diminish the doctrines of vicarious and contributory liability for copyright infringement or require any court to unjustly withhold or impose any secondary liability for copyright infringement."

Some opponents have argued that this short statement is vague and overbroad, and hence, could result in lawsuits being filed against, not only distributors of P2P software intended to induce copying of copyrighted music and movies, but also product reviewers and makers of products such as iPods.

The opponents' proposal is a longer bill, with many provisions, qualifications, and exceptions. It also includes undefined terms unknown to copyright law, and hence, if enacted in its current form, would add uncertainty to the law.

Opponents' Proposal. Like S 2560, the opponents' proposal would add a new subsection (g) to section 501. At the outset, it provides a new basic clause. It states, "Whoever actively distributes in commerce a computer program that is specifically designed for use by individuals to engage in the indiscriminate, mass infringing distribution to the public of copies or phonorecords of copyrighted works over digital networks, with the specific and actual intent to reap financial gain by encouraging such individuals to engage in such indiscriminate, mass infringing distribution, shall be liable as an infringer."

S 2560 would provide a new remedy against "Whoever intentionally induces" copyright infringement, while the opponents' proposal deletes the word "induces", and all of its variations. The word "inducement" is used once in the proposal -- in the title of the bill -- which has no legal effect. The opponents' proposal would not create a remedy for inducement.

Exempted Entities. The opponents' proposal contains numerous exemptions and exclusions. Some of these are contained within the basic clause. Five are recited below. Some of these are contained in an enumeration of exemptions in a separate subsection. These are recited below also.

S 2560 would apply to "whoever" induces infringement, while the opponents' proposal would only affect "whoever actively distributes" software. Thus, an entity might profit from inducing infringement via a P2P system, and yet escape any judicial sanction, by spinning off the distribution function to a separate entity, which could be a thinly capitalized corporation, with limited liability and no assets, that merely distributes.

S 2560 would apply to inducing infringement by any means, while the opponents' proposal would only affect infringement resulting from the distribution of "computer software". Thus, under the opponents' proposal if, for example, Grokster produced an electronic device, the only function of which was to serve as a node on Grokster's P2P network, this would not be prohibited, because it is not a "computer program".

S 2560 would apply to any inducement of infringement, while the opponents' proposal would only affect distribution "in commerce". Thus, under the opponents' proposal if a library, academic, religious, or non-profit entity sold P2P software that induced infringement, it might derive substantial revenues, and do substantial financial harm to the people and companies that hold copyrights. However, these activities would not be prohibited, because they are not "in commerce". Perhaps it is significant that several library and academic groups support this proposal.

S 2560 would apply to any inducement of infringement, while the opponents' proposal would only affect infringement by "distribution ... over digital networks". Sen. Hatch and Sen. Leahy state that they are concerned about the destructive effect of P2P systems on the music, movie and software industries. P2P systems involve distribution over digital networks. However, S 2560 is not limited to infringement that occurs over digital networks. Hypothetically, it could apply to devices or software that are not used in association with a digital network. The ancient Betamax, for example, did not induce infringement over a digital network. First, the alleged infringers (TV watchers) did not distribute copies over a network. Second, the network then primarily involved over the air analog (not digital) signals.

S 2560 would apply to inducing infringement by whoever, while the opponents' proposal would only affect software designed for use by "individuals". Thus, under the opponents' proposal a P2P system that induces infringement, but is designed to be distributed to a corporate market, would not be prohibited.

The opponents proposal also contains a subsection that enumerates additions exemptions.

First, it provides that "A service provider as defined in 17 U.S.C. 512(k)(1)(B) whose service is used by a third party to distribute or that facilitates a third party's distribution of a computer program shall not be liable under paragraph (1) for providing or operating such service."

Subsection 512(k)(1) provides two definitions of the term "service provider" for the purposes of Section 512, which was added to the Copyright Act in 1998 by the Digital Millennium Copyright Act (DMCA). Subsection 512(k)(1)(B) provides that "As used in this section, other than subsection (a), the term ``service provider´´ means a provider of online services or network access, or the operator of facilities therefor, and includes an entity described in subparagraph (A)." Subsection 512(k)(1)(A), in turn provides that "As used in subsection (a), the term ``service provider´´ means an entity offering the transmission, routing, or providing of connections for digital online communications, between or among points specified by a user, of material of the user's choosing, without modification to the content of the material as sent or received."

This is a broad definition contained in a provision designed to insulate ISPs from liability for the activities of direct infringers (who are not service providers) who subscribe to their services. However, in situations involving entities that vicariously infringe, or that induce of infringement, the entities may themselves be service providers. Thus, this exemption might erode the rule.

The opponents' proposal also includes a list of several other categories of entities exempted from the basic prohibition. It provides that "A person who is not a distributor of a computer program that is specifically designed for use by individuals to engage in the indiscriminate, mass infringing distribution to the public of copies or phonorecords of copyrighted works over digital networks shall not be liable under paragraph (1) notwithstanding any contribution to or benefit from such distribution. By way of example and not limitation, providing (i) venture capital, financial assistance, payment services, or financial services, (ii) advertising, advertising services, or product reviews, or (iii) information or support to users, including via manuals and user handbooks pertaining to a computer program, assistance or directions for using such a program through a company's online help system or telephone help services, and library services shall not be a basis for liability under paragraph (1)."

The opponents' proposal also includes a list of several service functions exempted from the basic prohibition. It provides that "In or as part of a consumer electronics or information technology product or service, providing navigation or access functions, recording functions, storage capacity, electronic program search and indexing functions, or an electronic program guide shall not separately or in combination be a basis for liability under this paragraph."

Finally, perhaps it is notable that the opponents' proposal makes reference to both "distribution" and "redistribution" of copyrighted works. This is pregnant with potential consequences. For example, sections of the proposal that pertain to "redistribution" may exclude works not yet distributed by the copyright holder. This might include movies, music, software, and books before their planned release dates. This might also include stolen works, not intended for distribution, such as diaries, financial records, or correspondence.

Mass Indiscriminate Infringement. S 2560 would apply where someone "induces", while the opponents' proposal would only affect someone who involved "indiscriminate, mass infringing distribution". The words "indiscriminate" and "mass" raise the bar for copyright holders.

Indiscriminate infringement is not defined by the opponents' proposal, or by the Copyright Act. The concept of indiscriminate infringement does not exist in copyright law. Since this term is given no meaning, courts would have to interpret its meaning. If a court were to give it a meaning that is consistent with the common usage of the word "indiscriminate", which is likely how the court would proceed, then it would mean copying that is without discrimination, or that is conducted at random. Users of P2P systems who make available copyrighted works tend not to select copyrighted works at random, or indiscriminately. They apply criteria, such as performers, genres and works that they prefer, and that they already possess. Thus, the individuals who copy and make available on a P2P system a copyrighted work are not acting indiscriminately. Nor are the individuals who download copyrighted works. They do not copy at random. They copy the works that they prefer, based on their own criteria. Copyright holders thus might be unable to prove mass indiscriminate infringement, as required by the opponents' proposal.

Also, the word "mass" is not defined by the opponents' proposal, or by the Copyright Act. The concept of mass infringement does not exist in copyright law. Here again, copyright holders would be faced with seeking a remedy under a statute with undefined restricting terms.

Mental State. Neither S 2560 nor the opponents' proposal would impose strict liability. S 2560 contains a mental state requirement that would be substantially easier for copyright holders to meet than the mental state requirements in the opponents' proposal.

S 2560 provides that the mental state is "intentionally", and this is to be interpreted under a "reasonable person" standard. S 2560 defines "intentionally induces" as "intentionally aids, abets, induces, or procures, and intent may be shown by acts from which a reasonable person would find intent to induce infringement based upon all relevant information about such acts then reasonably available to the actor, including whether the activity relies on infringement for its commercial viability."

The opponents' proposal requires "specific and actual intent to reap financial gain by encouraging such individuals to engage in such indiscriminate, mass infringing distribution". This, of course, raises the question of just what is "specific and actual intent". The opponents' proposal does not define this phrase. It does, however, provides three minimum requirements for finding "specific and actual intent" -- predominant use, revenues predominantly derived from redistribution, and conscious, recurring, persistent, and deliberate acts of encouragement. The way it is worded, these are not elements of a definition or test. Rather, they are necessary, but not sufficient, conditions for finding "specific and actual intent".

In full, the opponents' proposal provides that "a person shall not be deemed to have such specific and actual intent unless (A) the predominant use of the computer program is the mass, indiscriminate infringing redistribution to the public of copies or phonorecords of copyrighted works; (B) the commercial viability of the computer program depends on, and the predominant revenues derived by the distributor from the computer program are derived from, its use for such mass, indiscriminate infringing redistribution; and (C) the person has undertaken conscious, recurring, persistent, and deliberate acts that encouraged another person to commit such mass, indiscriminate infringing redistribution or absent a legitimate purpose actively interfered with the ability of copyright owners to detect and prosecute such mass, indiscriminate infringing  redistribution."

Moreover, a later subsection of the bill provides that "Actual or constructive knowledge of the use of a computer program is not sufficient to demonstrate the requisite specific intent".

Collectively, all of these provisions set such a rigorous minimum standard for a finding of "specific and actual intent" that it is hard to imagine any P2P systems designed to profit by inducing infringement that would be found to satisfy this minimum standard.

Additional Obstacles. The opponents' proposal also contains two additional procedural clauses that would diminish the likelihood of copyright holders obtaining meaningful relief.

First, it would provide that in an action alleging inducement, "facts supporting such allegation must be pleaded with particularity." This may be significant because most of the relevant facts would be held by the direct infringers, their internet service providers, and the entities inducing infringement. Complaints would be plead with general allegations. The copyright holders would then conduct pretrial discovery to obtain more particular evidence. This clause would provide defendants the opportunity to have complaints dismissed prior to such discovery.

Second, it would provide a subsection limiting remedies to "an injunction against such intentional commercial activity" and "actual damages for infringement of a work for which the defendant had specific and actual knowledge the work would be infringed." Limiting the injunctive relief to the commercial activity is significant because the appropriate injunctive relief might otherwise include such things as rending a financial accounting, or providing reporting to the court of parties. Limiting damages to actual damages for infringement where "the defendant had specific and actual knowledge the work would be infringed" would impose an impossible burden upon copyright holders. The inducing defendant may know that its product is being used to infringe, and that it will be used to infringe. But, the inducing defendant does not have actual knowledge of what works will be infringed in the future.

Betamax Case. S 2560 is silent regarding the Betamax case. This is Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417 (1984). The Sony Betamax case was a contributory infringement case, not an inducement case. The Supreme Court held, in a 5-4 opinion, that Sony did not contributorily infringe with its Betamax technology.

Both Sen. Hatch and Sen. Leahy stated at the July 22, 2004 hearing that their bill does not affect the Betamax decision. Marybeth Peters, the Register of Copyrights, who testified at the hearing, said the same. However, S 2560 does not expressly state this.

Gary Shapiro, the P/CEO of the Consumer Electronics Association (CEA), argued at the July 22 hearing that S 2560 would "reverse and rewind" the Betamax decision. He elaborated in his written statement that "Because it is so doctrinally different, and relies on a fundamentally different test -- intention vs. capability of product -- there is no way that S. 2560, if applicable to staple hardware and software products, can or will be read by potential plaintiffs, and by courts, as anything other than a frontal attack on the holding of the Supreme Court in the Betamax case."

The CEA now supports the opponents' proposal. See, CEA release.

The opponents' proposal does contain language that is related to the Betamax case. Section 4 of the proposal, which is titled "Codification of Supreme Court Precedent", provides that "Except as provided under section 501(g)(1), it shall not be a violation of the Copyright Act to manufacture or distribute a hardware or software product that is capable of commercially significant noninfringing use."

This is not a codification of the Supreme Court's decision. Rather, it is the codification of a six word phrase from that decision.

The majority in Sony wrote that "We recognize there are substantial differences between the patent and copyright laws. But in both areas the contributory infringement doctrine is grounded on the recognition that adequate protection of a monopoly may require the courts to look beyond actual duplication of a device or publication to the products or activities that make such duplication possible. The staple article of commerce doctrine must strike a balance between a copyright holder‘s legitimate demand for effective -- not merely symbolic -- protection of the statutory monopoly, and the rights of others freely to engage in substantially unrelated areas of commerce. Accordingly, the sale of copying equipment, like the sale of other articles of commerce, does not constitute contributory infringement if the product is widely used for legitimate, unobjectionable purposes. Indeed, it need merely be capable of substantial noninfringing uses. ... The question is thus whether the Betamax is capable of commercially significant noninfringing uses."

The Court went on to find that the Betamax was capable of commercially significant noninfringing uses because consumers used it for time shifting, which is a fair use.

By codifying merely the six word phrase, "capable of commercially significant noninfringing use", the opponents' proposal might preclude giving effect to the entirety of the Sony opinion, and the application that other courts, such as the 7th Circuit, have given to it in the context of P2P systems.

For example, on June 30, 2003, the U.S. Court of Appeals (7thCir) issued its opinion [23 pages in PDF] in In Re Aimster Copyright Litigation. Judge Richard Posner discussed the Sony Betamax case at length. He wrote, for example, that "We also do not buy Aimster's argument that since the Supreme Court distinguished ... between actual and potential noninfringing uses, all Aimster has to show in order to escape liability for contributory infringement is that its file-sharing system could be used in noninfringing ways, which obviously it could be. Were that the law, the seller of a product or service used solely to facilitate copyright infringement, though it was capable in principle of noninfringing uses, would be immune from liability for contributory infringement. That would be an extreme result, and one not envisaged by the Sony majority."

8/20. The Federal Communications Commission (FCC) announced and released an Order and Notice of Proposed Rulemaking [47 pages in PDF] that requests public comments on rules regarding the unbundling obligations of incumbent local exchange carriers (ILECs) pursuant to 47 U.S.C. § 251(c)(3). It also orders a six month freeze.

This item states that it requires ILECs "on an interim basis ... to continue providing unbundled access to switching, enterprise market loops, and dedicated transport under the same rates, terms and conditions that applied under their interconnection agreements as of June 15, 2004."

It continues that "These rates, terms, and conditions shall remain in place until the earlier of the effective date of final unbundling rules promulgated by the Commission or six months after Federal Register publication of this Order, except to the extent that they are or have been superseded by (1) voluntarily negotiated agreements, (2) an intervening Commission order affecting specific unbundling obligations (e.g., an order addressing a pending petition for reconsideration), or (3) (with respect to rates only) a state public utility commission order raising the rates for network elements."

It also states that "we set forth transitional measures for the next six months thereafter. Under our plan, in the absence of a Commission holding that particular network elements are subject to the unbundling regime, those elements would still be made available to serve existing customers for a six-month period, at rates that will be moderately higher than those in effect as of June 15, 2004."

Section 251 contains the 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. Since passage of the 1996 Act the FCC has been writing unbundling rules, and the federal courts have been overturning them.

The FCC issued its latest unbundling rules one year ago. On August 21, 2003, the FCC released the order known as the triennial review order [576 pages in PDF] on August 21, 2003. 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.

On March 2, 2004 the U.S. Court of Appeals (DCCir) issued its opinion [62 pages in PDF] in USTA v. FCC overturning key parts of the FCC's TRO. The opinion leaves largely untouched those portions of the TRO in which the FCC refrained from unbundling next generation broadband facilities. The opinion vacates those portions of the TRO in which the FCC delegated decision making authority to the state to make impairment findings. See, story titled "Appeals Court Overturns Key Provisions of FCC Triennial Review Order", also published in TLJ Daily E-Mail Alert No. 848, March 3, 2004.

This item is FCC 04-179 in WC Docket No. 04-313 and CC Docket No. 01-338. It states that the FCC adopted it on July 21, 2004. Comments will be due 21 days after publication in the Federal Register, which has not yet occurred. Reply comments will be due 36 days after publication.

FCC Chairman Michael Powell (at right) wrote in a separate statement [PDF] that "There is no need to fear that consumers will be left with nothing to choose from as UNE-P begins to whither. Consumers are using wireless telephones more than they are using wired telephones today -- many now use their mobile as their primary phone. Cable companies are offering competitive telephone service to residential consumers. VoIP is surging into the marketplace as broadband grows, offering an exciting and new competitive alternative that offers cut-rate prices and futuristic features."

FCC Commissioner Kathleen Abernathy wrote in a separate statement [PDF] that "In the wake of the D.C. Circuit’s decision invalidating many of the Commission’s unbundling rules, we must expeditiously build a record and develop a revised framework. For too long the Commission has given short shrift to the direction provided by the courts in pursuit of a policy of maximum unbundling. Now, we have an opportunity to craft judicially sustainable rules that promote competition in a manner that more fully embraces free-market principles and is less dependent on regulatory micromanagement."

FCC Commissioners Michael Copps, Jonathan Adelstein, and Kevin Martin formed the majority that wrote the unbundling rules that were overturned by the Court of Appeals in March. Copps and Adelstein dissented from the present item. Copps wrote in a separate statement [PDF] that the FCC "is on track to butcher the pro-competitive vision of the 1996 Act."

FCC Commissioner Jonathan Adelstein wrote in a separate statement [PDF] that "Through this Order, the Commission adopts an ambiguous approach that is perhaps designed to give a little to everyone but that ultimately grants stability to none. The Order leaves unclear which elements are available to competitors and at what prices they will be available. It is difficult to imagine how either competitors or incumbents will plan for the future, develop business plans, or seek investor support with this foggy vision into the long-term framework. If savvy industry players will be left wondering about the rules of the game, consumers surely will have little guidance about how to choose among the ever-dwindling list of providers."

FCC Commissioner Kevin Martin wrote no separate statement.

BellSouth, an ILEC, released a statement. "BellSouth is pleased that the Commission has finally formally started the process of preparing new rules consistent with the court's mandate. After 8-1/2 years of working under unlawful rules, BellSouth believes the quick adoption and implementation of permanent rules is essential to economic recovery and job creation in America’s technology sector." It added that "To provide a stable environment while that work is finished, BellSouth months ago voluntarily agreed to maintain existing arrangements with competitors through the end of 2004. We are certainly troubled that, despite the court's refusal to stay its March 2004 order, the FCC granted itself the power to maintain the unlawful status quo well into 2005."

Walter McCormick, the P/CEO of the U.S. Telecom Association (USTA), a group that represents the interest of ILECs, released a statement in which he wrote that "For nearly a decade, we have waited for the FCC to put lawful rules in place for the telecom industry. Unfortunately, after four attempts, missed deadlines, instability and delay, we are again forced to ask the court to intervene to bring certainty and clarity to the industry. The Commission must put lawful, permanent rules in place by the end of this year so that all providers can move forward on a competitive basis."

In contrast, Russell Frisby, CEO of CompTel/ASCENT, stated in a release that "While the process that has led to this situation is regrettable, we are gratified that the FCC has acknowledged the critical need to keep existing arrangements in place while permanent rules are drafted. The six-month freeze will provide some stability -- at least in the short-term -- and give carriers additional time to evaluate their on-going business plans."

Frisby added that "the Bells have begun to manipulate rates in an effort to squeeze competitors out of the market. Given these practices, it is imperative that the FCC acts quickly to ensure that competitive providers are able to access monopoly-controlled switching, loops and transport facilities at cost-based rates. The data amassed across the nation provides clear evidence that competition cannot thrive without access to those key portions of the network that are economically and technically difficult to replicate."

The House and Senate are in recess through September 6.

10:00 AM. The House Transportation Committee's Subcommittee on Aviation will hold a hearing titled "9/11 Commission Report: Review of Aviation Security Recommendations". Location: Room 2167, Rayburn Building.

RESCHEDULED FOR SEPTEMBER 9. 10:30 AM - 12:15 PM. The Federal Communications Commission (FCC) will hold an event titled "Discussion on the Debt Collection Improvement Act Rules and Rules Governing Applications or Other Request for Benefits by Debtors". See, notice [PDF]. Location: FCC, Commission Meeting Room, 445 12th Street, SW.

12:15 PM. The Federal Communications Bar Association's (FCBA) Online Communications Practice Committee will host a brown bag lunch. The topic will be Federal Communications Commission (FCC) and Department of Agriculture (USDA) policies related to deployment of wireless broadband services in rural areas. The speakers will be Peter Corea (Special Counsel, FCC's WTB's Broadband Division) and Chris Moore (USDA). For more info contact Ann Bobeck at abobeck@nab.org. RSVP to Evelyn Opany at evelyn.opany@piperrudnick.com Location: Piper Rudnick, 1200 19th St., NW, 7th Floor.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Notice of Inquiry (NOI) [30 pages in PDF] regarding its annual report to the Congress on the status of competition in the market for the delivery of video programming. See also, story titled "FCC Adopts NOI For Annual Report to Congress on Video Programming" in TLJ Daily E-Mail Alert No. 916, June 11, 2004. This NOI is FCC 04-136 in MB Docket No. 04-227. See also, notice in the Federal Register, July 1, 2004, Vol. 69, No. 126, at Pages 39930 - 39933.

Deadline to submit comments and notices of intention to participate to the Copyright Office regarding ascertainment of controversy for the 2002 cable royalty funds. The CO published a notice in the Federal Register that "directs all claimants to royalty fees collected for calendar year 2002 under the cable statutory license to submit comments as to whether a Phase I or Phase II controversy exists as to the distribution of those fees and announces the deadline for the filing of Notices of Intention to Participate in a royalty distribution proceeding concerning those royalty fees." See, Federal Register, July 26, 2004, Vol. 69, No. 142, at Pages 44548 - 44549.

6:00 - 9:15 PM. The DC Bar Association's Intellectual Property Law Section and Computer and Telecommunications Law Section will host a continuing legal education (CLE) program titled "Software Patent Primer: Acquisition, Exploitation, Enforcement and Defense". The speakers will be Richard Litman (Litman Law Firm), Stephen Parker (Rothwell Figg, Ernst & Manbeck), David Temeles (Temeles & Temeles), and Martin Zoltick (Rothwell Figg). Prices vary. See, notice. For more information, contact 202-626-3488. Location: D.C. Bar Conference Center, B-1 Level, 1250 H Street, NW.

Deadline to submit comments to the Federal Communications Commission (FCC) in response to its notice of proposed rulemaking (NPRM) regarding unlicensed use of the 3650-3700 MHz band. The FCC adopted this NPRM on April 15, 2004. This item is FCC 04-100 in ET Docket Nos. 04-151, 02-380 and 98-237. See, notice in the Federal Register, May 14, 2004, Vol. 69, No. 94, at Pages 26790 - 26803. See also, story titled "FCC Announces NPRM Regarding Unlicensed Use in the 3650-3700 MHz Band" in TLJ Daily E-Mail Alert No. 878, April 16, 2004.

Deadline to submit comments to the Federal Communications Commission FCC) in response to its notice of proposed rulemaking (NPRM) [11 pages in PDF] that proposes to require that television and radio broadcasters retain program recordings for a period of time for purposes of enforcing the statutory prohibition, codified at 18 U.S.C. § 1464, against obscene, indecent, or profane programming. This NPRM is FCC 04-145 MM Docket No. 04-232. See, story titled "FCC Proposes That Broadcasters Retain Recordings To Facilitate Enforcement of Smut Ban" in TLJ Daily E-Mail Alert No. 933, July 8, 2004. See, notice in the Federal Register, July 30, 2004, Vol. 69, No. 146, at Pages 45665 - 45668.

The Republican National Convention will be held in New York City on August 30 through September 2.

TIME ? The Executive Office of the President's (EOP) Office of Science and Technology Policy's (OSTP) National Science and Technology Council's (NSTC) Committee on Technology's Subcommittee on Nanoscale Science, Engineering and Technology will hold a meeting that is close to the public. For more information, contact Geoff Holdridge at gholdrid@nsf.gov. Location: National Science Foundation (NSF), Room 1235.

12:00 NOON - 1:30 PM. The DC Bar Association's Intellectual Property Law Section and Trademark Committee will host a panel discussion titled "Use Of Surveys In Trademark Cases". The speakers will be Bassam Ibrahim (Burns Doane) and Jessica Pollner (PricewaterhouseCoopers). See, notice. Prices vary from $20 to $40. For more information, call 202 626-3463. Location: D.C. Bar Conference Center, B-1 Level, 1250 H Street, NW.

Deadline to submit comments to Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) [38 pages in PDF] regarding use by unlicensed devices of broadcast television spectrum where the spectrum is not in use by broadcasters. See, notice in the Federal Register, June 18, 2004, Vol. 69, No. 117, at pages 34103-34112. See also, story titled "FCC Adopts NPRM Regarding Unlicensed Use of Broadcast TV Spectrum" in TLJ Daily E-Mail Alert No. 898, May 14, 2004, and story titled "FCC Releases NPRM Regarding Unlicensed Use of TV Spectrum" in TLJ Daily E-Mail Alert No. 905, May 26, 2004. This NPRM is FCC 04-113 in ET Docket Nos. 04-186 and No. 02-380.

The Federal Trade Commission's (FTC) final rule amending its Telemarketing Sales Rule (TSR) by revising the fees charged to entities accessing the National Do Not Call Registry takes effect. See, notice in the Federal Register, July 30, 2004, Vol. 69, No. 146, at Pages 45580 - 45586.

8/23. The Federal Communications Commission's (FCC) Spectrum Policy Task Force (SPTF) published a web page titled "Proceedings and Initiatives" that summarizes open FCC proceedings related to FCC regulation of the use of spectrum.

8/20. National Institute of Standards and Technology (NIST) released its revised Draft NIST Special Publication 800-70 [71 pages in PDF] titled "Security Configuration Checklists Program for IT Products". This publication, which was written by Murugiah Souppaya and John Wack of the NIST, and by Anthony Harris, Paul Johnson, and Karen Kent of Booz Allen, pertains to instructions for configuring information technology products to a particular security level. The deadline for public comments is September 30, 2004. Send comments to checklists@nist.gov.

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