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October 1, 2004, 9:00 AM ET, Alert No. 988.
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Hatch and Leahy Continue to Work on an Inducement of Infringement Bill

9/30. The Senate Judiciary Committee held an executive business meeting on Thursday, morning, September 30. The agenda again included consideration of S 2560, "Inducing Infringement of Copyrights Act of 2004". And again, the Committee did not take up this bill.

Instead, Sen. Orrin Hatch (R-UT) and Sen. Patrick Leahy (D-VT) organized an afternoon meeting with proponents and opponents of the bill, which creates a cause of action for inducement of infringement. Sen. Hatch and Leahy are the Chairman and ranking Democrat on the SJC. Their staffs presided at the meeting. Sen. Hatch participated in part of the meeting. See also, SJC's September 24 draft of the bill.

This meeting will continue on Friday morning, October 1, 2004. Also, the SJC scheduled another business meeting for Tuesday, October 5. (Its normal time for business meetings is Thursday morning.)

Sen. Hatch wrote in his prepared statement for the Thursday morning business meeting that "Senator Leahy and I are continuing our efforts to bring the affected parties together as we refine our copyright legislation, S.2560. While I do not contemplate action on this bill at today’s mark-up, negotiations will continue this afternoon to perfect language that will help bring an end to the rampant abuse of copyrighted material, for example, by some file sharing programs that facilitate the theft of music. At the same time, we must protect the rights of legitimate technology firms to develop faster and better products."

He added that "If I have to, I will lock up all of the key parties in a room until they come out with an acceptable bill that stops the bad actors and preserves technological innovation. I hope we will be able to bring the Committee a new draft at next week’s mark-up."

Sen. Leahy wrote in a prepared statement that "I have tried to work with Chairman Hatch on a number of fronts and we have had our share of successes. He and I are working hard in a bipartisan way to bring to fruition efforts to improve the law and provide appropriate and focused legal remedies to protect against copyright infringement."

Representatives from proponents of legislation, including the Entertainment Software Association (ESA), Motion Picture Association of America (MPAA), and the Recording Industry Association of American (RIAA), participated in the afternoon meeting.

Representatives from opponents, including the Center for Democracy and Technology (CDT), Consumer Electronics Association (CEA), Earthlink, Intel, Verizon, and the U.S. Telecommunications Association (USTA), also participated.

FCC Hosts Discussion of Wireline Competition Bureau Topics

9/29. The Federal Communications Commission's (FCC) Wireline Competition Bureau (WCB) hosted an event at which senior officials in the WCB discussed issues before the FCC and WCB. The speakers were Jeffrey Carlisle (Bureau Chief of the WCB), Michelle Carey (Division Chief of the WCB's Competition Policy Division), Jane Jackson (Associate Bureau Chief of the WCB), and Richard Lerner (Associate Bureau Chief and Chief of Staff of the WCB).

Carlisle discussed the WCB's current regulatory framework, which is based upon classifying services as either telecommunications or information, and then applying all of the requirements associated with that classification. He suggested that it would be helpful if Congress were to give the FCC more discretion with regulatory definitions. He also discussed network neutrality and Chairman Powell's notion of network freedom, as well as the possibility of replacing a service categorization approach with a network layers approach to regulation. See, following story titled "Carlisle Discusses the FCC's Bipolar World, Powell's Network Freedoms, and a Network Layers Model of Regulation".

Carlisle and Carey discussed issues related to the regulation of voice over internet protocol (VOIP) services. See, following story titled "FCC Officials Discuss VOIP Regulation".

E-Rate Fraud. Carlisle discussed the House Commerce Committee's investigation into fraud and abuse of the FCC's e-rate subsidy program. The Subcommittee on Oversight and Investigations has held three hearings.

Carlisle state that "schools and libraries is something that we hear about from them quite frequently. I had the pleasure of testifying before the Oversight and Investigations Subcommittee last Wednesday about it. That is going to continue to be an issue ..."

He continued that "I think that the Oversight and Investigations Subcommittee quite rightfully believes that it wants to really look into this program, and see if it is being administered efficiently, and to eliminate waste fraud and abuse. So I think there has been a lot of interest about that, and there will continue to be a lot of interest in the foreseeable future."

Recommendations for Practitioners. The speakers also addressed how people who practice before the FCC can be more effective in their dealings with the WCB.

Jackson suggested that "much goes on late in the game" through ex parte communications. Hence, she recommended that "you really need to watch what other people are filing", and promptly respond to new arguments and information.

She also cautioned that if practitioners come in with new arguments late in the process, the FCC's order is less likely to be sustained on review.

Carlisle offered several recommendations. First, he said that he has lots of problems, so, "solve my problems". That is, do not merely advocate what the FCC should not do. Rather, "come in and actually help me solve a problem." He added, "Give us the plan; help us connect the dots."

Second, he reiterated a point that is often made by FCC officials at gatherings with practitioners -- "just respond to our data requests". He elaborated that when they ask for data it is because they believe the parties have it. Also, "if we had it, we would not be asking you". He pleaded that parties should not withhold data, and complained that "I have seen this over and over and over again."

Third, he recommended that practitioners should not overstate their cases. That is, don't ask for too much, and be willing to compromise.

Other Subjects. Carlisle said that the three most important issues before the WCB are now (1) the triennial review remand, (2) the jurisdictional decision on voice over internet protocol (VOIP), and (3) access charges, intercarrier compensation, and universal service.

Lerner said that changes need to be made to the universal service contribution mechanism, because broadband and VOIP and wireless long distance are putting pressure on the current mechanism. He suggested that the FCC needs to move to a "number or connection based assessment".

The FCC's Monica Desai organized and moderated this event. She also asserted that the Federal Communications Bar Association (FCBA) hosted this event.

Carlisle Discusses the FCC's Bipolar World, Powell's Network Freedoms, and a Network Layers Model of Regulation

9/29. The Federal Communications Commission's (FCC) Wireline Competition Bureau (WCB) hosted an event at which senior officials in the WCB discussed issues before the FCC and WCB.

Jeffrey Carlisle, the Bureau Chief of the WCB, said that the FCC lives in a "bipolar world" in which much depends on the dichotomy of telecommunications service and information service. He suggested that it would be helpful to give the FCC more discretion with regulatory definitions.

He also discussed network freedom, network neutrality, bit discrimination, and a layers model of regulation. He took no position on whether the FCC should ensure network freedom or neutrality; it is a matter for the Commissioners. However, he said that there is a sea change in regulatory theory at the FCC as the FCC moves from focusing on opening a network that was designed to be closed, to, perhaps, keeping open a network that was designed to be open. He suggested that a network layers model could help, but that the current bipolar model does not recognize layers.

WCB's Bipolar World. The FCC's Monica Desai, who moderated the discussion, asked how the Telecommunications Act of 1996 should be revised. Carlisle responded first that "Congress is going to do what they want, and they are going to focus on what they want. And, they will ask us if we have an opinion. Or, they won't ask us."

Nevertheless, Carlisle continued that it would be helpful to allow more discretion with regulatory definitions. He said, "I said in my Congressional testimony in July on VOIP that one of the major issues that we have -- and it touches on competition, it touches on universal service, it touches on everything -- are these definitions that we have to deal with. The 1996 Act sets up a bipolar world ..."

Carlisle testified before the House Commerce Committee's Subcommittee on Telecommunications and the Internet on July 7, 2004. The hearing was titled "Voice Over Internet Protocol Services: Will the Technology Disrupt the Industry or Will Regulation Disrupt the Technology?"

He stated in his prepared testimony that "it is important when dealing with the public policy implications of revolutionary new technologies to start from the perspective of how to best create the world we all want to live in, rather than applying regulatory structures that may have been rendered obsolete. The relevant question is how we as a society deal with the fundamental change in electronic communication we are witnessing, rather than falling into rather abstract fights over definitions."

He continued that the FCC "can only act as it may be allowed under the Act, which divides the world into regulated telecommunications services and unregulated information services. While the Commission certainly has some ability to fine tune treatment of new technologies given its discretion and the flexibility granted to it by Congress, the Commission is still constrained by this structure. If you believe that VOIP and other new technologies are working changes in the telecommunications market such that new regulatory approaches are necessary, you may need to consider whether the tools the Commission has today are sophisticated enough for the task."

Carlisle elaborated at the September 29 event that the 1996 Act "sets up a bipolar world of telecommunication service and information service. You are one or the other. And it is based on our telecom service information service distinction."

He continued, "The problem is, is that everything depends on those definitions. So, the dynamic that you set up is that if you have one interest group that wants something to be a telecommunications service for a specific reason, they will push to get that, get it defined as such, and they won't care about any of the other implications. I think you probably need, given how technology is changing, you need a somewhat more nuanced approach to it. Now just what that is, I am not entirely sure. Because, I think, I don't know whether it is politically feasible actually have a very broad, sort of, discretion to the FCC to define things as they see them. But having some sort of approach that allows us to handle technologies that develop, outside of this very binary structure, would be tremendously helpful."

Network Freedom and Network Neutrality. Later in the program Carlisle, and the other WCB officials, were asked a long question regarding Chairman Michael Powell's four "net freedoms", "bit discrimination", and "layered approach" to regulation. He was asked "to what extent, if we are moving towards this broadband VOIP world, to what extent are you concerned about making it official policy to have these net freedoms, or relatedly, are you looking at the layered approach that some are suggesting? How does this all figure in to the thinking of the Bureau?"

On February 8, 2004 Powell gave a speech [PDF] titled "Preserving Internet Freedom: Guiding Principles for the Industry" at the Silicon Flatirons Symposium at the University of Colorado School of Law in Boulder, Colorado. He discussed his concept of "network freedom", and referenced the concept of "network layers". See, story titled "Powell Opposes Regulations to Impose Broadband Network Neutrality" in TLJ Daily E-Mail Alert No. 833, February 10, 2004.

Powell argued in that speech for a concept that he called "Net Freedom" -- the concept that consumers should be able to use their broadband connections to "use the content, applications and devices they want", without restrictions imposed by their broadband service providers. He also argued that at this time "the case for government imposed regulations regarding the use or provision of broadband content, applications and devices is unconvincing and speculative". However, he outlined a voluntary "road map" of rules to be followed by broadband service providers.

Powell's discussion of "network freedom" responded to various arguments that have been made for "network neutrality". For example, the Coalition of Broadband Users and Innovators (CBUI) has filed numerous comments with the FCC urging that it write a nondiscrimination rule. See especially, comment [3 pages in PDF] filed on November 18, 2002, and comment [23 pages in PDF] filed on July 17, 2003. See also comment [17 pages in PDF] submitted by law professors Lawrence Lessig (Stanford) and Timothy Wu (University of Virginia) on August 22, 2003 urging that the FCC adopt a network neutrality rule. See also, story on this subject titled "Cato Study Opposes FCC Imposition of Network Neutrality" in TLJ Daily E-Mail Alert No. 816, January 15, 2004.

Carlisle stated at the FCC's September 29 event that issues such as net freedom, bit discrimination, and layered models are a concern at the FCC. But, he said it was up to the Commissions to decide how to proceed on network freedoms and network neutrality.

He said this. "I think that it is a concern. I don't know though, whether it is a concern that, in the future that we have to be worried about, or a concern, something that we have to do now. What appropriate action would be to take now? Should the Commission move towards actually having a, sort of, rule structure around the net neutrality and the four freedoms? Should, is it more appropriate instead to say, policy of the Commission? I don't know. Those are decisions that the Chairman is going to have to discuss with the other Commissioners, and figure out, you know, what they want to do, and the timing of that."

Carlisle went on to discuss an ongoing "sea change" in regulatory theory at the FCC. "This issue is symptomatic of a larger, you know, sort of, bit discrimination issue, is symptomatic of a larger, sort of, sea change, in regulatory theory. I don't think that it should be put any other way. I am not exaggerating it; I am not underestimating it; I am not understating it either. I think we are moving from a world where for 30 years our regulations have been about, sort of, trying to open up a network that was designed as being a closed network. Well, now we have a network that was designed as being an open network, on which there could possibly be bottleneck access.

"Query, whether there is bottleneck access if you have multiple platforms providing access. But, theoretically, there could be bottleneck access, at least, in certain markets. So, what do you -- isn't that really a change in what you are doing from opening up networks, to ensuring that networks that are open remain open, at least to people who want to provide applications and services over that network That is really how the internet grew up. That is the strength of the internet. Is that where the regulatory theory now needs to go? Is it appropriate for us to have that role?"

Network Layers Approach to Regulation. Powell made only brief reference to "layers" in his February 8, 2004 speech. He said that "We must ensure that the various capabilities of these technologies are not used in a way that could stunt the growth of the economy, innovation and consumer empowerment. Thus, we must expand our focus beyond broadband networks -- the so-called ``physical layer´´ of the Internet's layered architecture."

The proponents of a network layers approach to regulation argue against regulating by categorizing industry sectors (telecommunications, information, cable) and then assigning to each category its own collection of rules. Instead, they argue that the regulatory model should consider the layers that make up the communications system. Stated in its simplest version, there are three layers: the physical layer across which communications travel, the code layer which includes such things as internet protocols, and the content layer of things that are communicated over the system.

For further discussions of the concepts of network layers, and network layers based regulation, see paper [74 pages in PDF] titled "A Horizontal Leap Forward: Formulating A New Public Policy Framework Based On The Network Layers Model" by Rick Whitt of MCI WorldCom; paper titled "A Layered Model for Internet Policy" by Kevin Werbach; and paper [19 pages in PDF] titled "From Consumers to Users: Shifting the Deeper Structures of Regulation Toward Sustainable Commons and User Access" by Yochai Benker. See, also book by Lawrence Lessig titled The Future of Ideas: The Fate of the Commons in a Connected World, at Chapter 2, and especially at pages 23-25.

Carlisle stated in his House testimony on July 7, 2004 that "MCI and others argue that the primary benefit of using IP to transmit voice is that it allows industry to move from using networks that are optimized for and dedicated to a single function, voice, to a network capable of delivering multiple functions. Accordingly, regulation should reflect the fact that services and applications are no longer tied to the physical infrastructure. If dozens or hundreds of competing services and voice applications are provided over the infrastructure layer, there is little or no justification for continued common carrier regulation at those levels. Rather, the focus of common carrier regulation should be on underlying facilities, where issues of market power might still exist."

On September 29, Carlisle asked rhetorically whether it is an appropriate role for the FCC to ensure that open networks remain open. He stated that "I think, the bit discrimination issue is, sort of, symptomatic of that larger issue. And, I, you know, think that the role for the Bureau in that is probably, sort of, doing the hard work in terms of trying to think what that means for our regulatory policies going forward."

He stated that "The things like the layered model model help you on that." But, he concluded, the WCB's regulatory model is bipolar, and doesn't recognize layers.

FCC Officials Discuss VOIP Regulation

9/29. The Federal Communications Commission's (FCC) Wireline Competition Bureau (WCB) hosted an event at which senior officials in the WCB discussed issues before the FCC and WCB.

Jeffrey Carlisle, the Bureau Chief of the WCB, and Michelle Carey, the Division Chief of the WCB's Competition Policy Division, discussed voice over internet protocol (VOIP), jurisdiction over VOIP, intercarrier compensation and access charges.

VOIP Jurisdiction. Carey addressed VOIP jurisdiction and the Brand X and Vonage cases.

Carey stated that "There is 8th Circuit litigation going on, regarding Vonage. The Minnesota Commission tried to assert some jurisdiction over Vonage's voice over IP service. And the Commission filed an amicus in that proceeding asking the Court to defer to us on those issues. And, I think the Commission is arranged to not be in a BrandX situation where the courts get ahead of our rule making on these topics."

On October 6, 2003 the U.S. Court of Appeals (9thCir) issued its opinion [39 pages in PDF] in Brand X Internet Services v. FCC, 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. See also, 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. This opinion is also reported at 345 F.3d 1120.

October 16, 2003. The U.S. District Court (DMinn) issued its Memorandum and Order [PDF] in Vonage v. Minnesota Public Utilities Commission, holding that Vonage is an information service provider, and that the MPUC cannot apply state laws that regulate telecommunications carriers to Vonage. The Court wrote that "State regulation would effectively decimate Congress's mandate that the Internet remain unfettered by regulation." See, story titled "District Court Holds that Vonage's VOIP is an Information Service" in TLJ Daily E-Mail Alert No. 760, October 17, 2004.

Carey said that "this year" the WCB may "come up with an order on jurisdiction".

Intercarrier Compensation and VOIP. Carlisle offered a review of the debate over VOIP and intercarrier compensation. However, he took no position.

He said that "the main issue with VOIP and intercarrier compensation is, you know, on the one hand, you have a group of service or applications providers -- however you want to characterize people who are providing VOIP services that interface with the PSTN -- you have this group. And, if as part of what they are selling to the public, they are selling access to the PSTN, there is a strong argument that, OK, they should abide by the same rules and conditions that apply to everybody else who accesses the PSTN."

"On the other hand, you have another set of people with equally strong arguments, that says, look, everybody knows that the system is broken, that we should not be imposing this system which the FCC, you are trying to revise on a very general basis, to a nascent industry that is just getting off of the ground with maybe 500,000 subscribers. I think, you know, the more extreme versions of this argument say that, look, even it was a million or two million subscribers, shouldn't you keep up the pressure to reform intercarrier compensation by not applying the system to these providers? So, these are compelling policy arguments on both sides, and they are very difficult to actually sort out."

He added that the FCC "has a long history of ensuring that new technologies and new ways of providing voice services and other, sort of, communications services, that companies that want to come in and actually try to do that have some decent opportunity of doing that, coming into the market. You know, on the other hand, there are a lot of very strong reasons built into the system of why we have intercarrier compensation and access charges."

Enforceability of Any FCC VOIP Rules. Carlisle also said in the case of VOIP, the FCC must consider whether the rules that it might adopt would be enforceable. He cited the example of Skype.

He said that "One thing that I can be sure of is that during the next six months it may very well be that this debate is taking place on a totally different set of assumptions and grounds that it is taking place now. What we were talking about with respect to VOIP is not what we are talking about now. It is going to continue to change. The ground is going to continue to change underneath us, as new services come out, as new business models get placed forward."

"For example, there is Vonage, there is, there is SkypeOut now. SkypeOut is located in Estonia. Its owners, who owners live somewhere between the Baltic and Denmark, I am not entirely sure where they are at this point. I know they cannot come into the United States." [audience laughter]

He continued that "They have one employee. I was at a conference a couple of months ago, and I think it was Zennström, who programmed all of this stuff, and who is also responsible for Kazaa, participated by voice conference, because if he steps into the United States the RIAA will subpoena him. But, they have one employee who is in Phoenix, who is a very nice person, and I have met her, and we have talked, and I believe that she has actually made a couple of filings with the FCC. But that is the only person that they have in the United States."

Carlisle concluded that "one thing we have to keep in mind is as these business models change, we can say a lot of things about what we may or may not do to VOIP, but we always have to keep in mind the aspect of enforceability, and whether anything that we do will be enforceable." Declaratory Ruling. Carlisle also addressed the ruling. He said that there has been some public misunderstanding of the ruling.

On February 12, 2004 the FCC adopted a Declaratory Ruling (DR) on's petition for declaratory ruling regarding the classification of its Free World Dialup (FWD) service. The DR found that FWD is not a telecommunications as defined by the Communications Act (CA), that FWD is not telecommunications service as defined by the CA, that FWDialup is an information service as defined by the Act, and that economic regulation of FWD would conflict with FCC policy that the internet and other interactive computer services remain unfettered by federal and state regulation.

Carlisle said that "one aspect of access charges that I think that has been kicked around back and forth was the impact of our order. I think it was seen in some quarters as being a decision that, ``well, access charges don't apply to internet only voice telephony´´. Well, that was really completely missing the point. I mean, leave aside the fact that the words access and charge do not, neither of them appear in the item, much less together. It wasn't about that. It was about a definitional issue."

Access Charges and VOIP. Finally, Carlisle discussed the difficulty of assessing access charges oo a service that never hits a switch.

He said that "you have got voice communications that are taking place entirely over the internet, and that don't hit a switch. So, how are you going to assess access charges on something like that, that is entirely over the internet."

"And separately", said Carlisle, "isn't the point really about how we pay for internet services and applications. You are going to say that, ``Well if it is internet only, and it is a voice service, and it is being provided over a broadband facility that we provide, we should be able to assess some type of charge for it?´´ Well, why not assess some kind of charge for eBay, or email or shopping at, or anything like that, at that point. They are just bits. And they are taking attention away from time that people could be spending on your phone, for example."

He concluded that "I think that there is a much larger policy debate that has to take place over this. And, simply saying that they are not giving us our charges, whether or not there is any way we could possibly rate for that, kind of misses the point that what we are really talking about is how are people going to pay for broadband ten years from now, fifteen years from now, twenty years from now. How are you going to ensure, or how do you meet the requirements of the Act, that Americans all across the county have access to reasonably comparable services, at affordable prices. That is the bigger issue that we are dealing with. And so, however these factors play out in the items of the moment, we also have to have an eye on that larger context as it moves forward."

VOIP Legislation. Carlisle also discussed what the FCC hears from the Congress on VOIP issues. He said that "even though I think there is a general sense on the Hill, that, look, this is a new technology, so at least, let's wait and see attitude. I think you do have a lot of shades of different policy approaches in there that the legislative assistants, and their member of Congress, are looking at."

"There are still, you know, we have got the Sununu legislation, the Stearns Boucher legislation in the House, and also the Pickering legislation is out there, and still forming the basis, perhaps, for future policy discussion on the Hill", said Carlisle.

On July 6, 2004, Rep. Cliff Stearns (R-FL) and Rep. Rick Boucher (D-VA) introduced HR 4757, the "Advanced Internet Communications Services Act of 2004". See, story titled "Rep. Stearns and Rep. Boucher Introduce VOIP and Internet Regulation Bill" in TLJ Daily E-Mail Alert No. 935, July 12, 2004.

On April 5, 2004, Sen. John Sununu (R-NH) introduced S 2281, the "VOIP Regulatory Freedom Act of 2004". On April 8, 2004, Rep. Chip Pickering (R-MS) introduced HR 4129, also titled the "VOIP Regulatory Freedom Act of 2004". See, story titled "Sununu and Pickering Introduce VOIP Regulatory Freedom Bills" and story titled "Summary of VOIP Regulatory Freedom Bills", both published in TLJ Daily E-Mail Alert No. 872, April 8, 2004.

The Senate Commerce Committee amended and approved S 2281 on July 22, 2004. See, story titled "Senate Commerce Committee Passes VOIP Regulation Bill" and story titled "Summary of VOIP Bills" in TLJ Daily E-Mail Alert No. 946, July 27, 2004.

Washington Tech Calendar
New items are highlighted in red.
Friday, October 1

The House will not meet. It will meet next at 12:30 PM on October 4.

The Senate will meet at 9:30 AM for morning business. It will then resume consideration of S 2845, the "National Intelligence Reform Act of 2004".

12:15 PM. The Federal Communications Bar Association's (FCBA) Wireless Committee will host a luncheon. The price to attend is $15. Registrations and cancellations are due by 5:00 PM on Tuesday, September 28. See, registration form [PDF]. Location: Sidley Austin, 1501 K St., NW.

EXTENDED TO DECEMBER 30. Deadline to submit reply 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. This NPRM is FCC 04-113 in ET Docket Nos. 04-186 and No. 02-380. See, notice (setting original deadlines) in the Federal Register, June 18, 2004, Vol. 69, No. 117, at pages 34103-34112. See, notice [PDF] of extended deadlines, and erratum [PDF].

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its notice of proposed rulemaking (NPRM) regarding Amateur Radio Service rules. The FCC adopted this NPRM on March 31, 2004, and released it on April 15, 2004. This NPRM is FCC 04-79 in WT Docket No. 04-140. See, notice in the Federal Register, August 17, 2004, Vol. 69, No. 158, at Pages 51028 - 51034.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to the Wireline Competition Bureau's (WCB) public notice inviting interested parties to update the record pertaining to petitions for reconsideration of the 1997 Price Cap Review Order. This is in CC Docket Nos. 94-1 and 96-262. See, notice [PDF].

Deadline to submit comments to the Federal Trade Commission (FTC) regarding its consent agreement with its Bonzi Software, Inc., it owners and officers, Joe Bonzi and Jay Bonzi. On September 1, 2004, the FTC filed an administrative complaint [6 pages in PDF], and simultaneously entered into an Agreement Containing Consent Decree [7 pages in PDF]. The FTC alleged violation of Section 5(a) of the FTC Act, which is codified at 15 U.S.C. § 45, in connection with the deceptive marketing and sale of software named "InternetALERT". See, notice in the Federal Register, September 9, 2004, Vol. 69, No. 174, at Pages 54667 - 54668. See also, story titled "FTC Stops Deceptive Claims by Security Software Maker" in TLJ Daily E-Mail Alert No. 970, September 6, 2004.

Monday, October 4

The Supreme Court will hear the first oral arguments of its October 2004 Term.

Day one of a two day event hosted by the Department of Commerce's Bureau of Industry and Security titled "17th Annual Update Conference on Export Controls and Policy". Location: Washington DC.

10:00 AM. Federal Communications Commission (FCC) Chairman Michael Powell will hold a press conference on "transition to digital television (DTV)". This press conference will be followed by two panel discussions. The first is titled "High Definition Content, Now and in the Future". The second is titled "How Consumers Can Take Advantage of the Digital Content". The event will be webcast. For more information contact Rebecca Fisher at 202 418-2359. Location: FCC, Commission Meeting Room, 445 12th St. SW.

3:00 - 4:00 PM. The Federal Communications Commission's (FCC) Advisory Committee on Diversity for Communications in the Digital Age will meet by teleconference. See, FCC notice [PDF], and notice in the Federal Register, September 24, 2004, Vol. 69, No. 185, at Pages 57293 - 57294.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to it Public Notice [PDF] requesting interested parties to provide comments on filings by AT&T and TracFone Wireless regarding eligible telecommunications carrier (ETC) designations and the Lifeline and Link-Up universal service support mechanism. This is CC Docket No. 96-45 and WC Docket No. 03-109.

Tuesday, October 5

The Supreme Court will hear oral argument in KP Permanent Makeup v. Lasting Impressions, No. 03-409. The U.S. Court of Appeals (9thCir) issued its opinion [20 pages in PDF] on April 30, 2003. The Supreme Court granted certiorari on January 9, 2004. See, story titled "Supreme Court Grants Cert in Trademark Case" in TLJ Daily E-Mail Alert No. 813, January 12, 2004. This case is No. 03-409.

8:30 AM. The President's Council of Advisors On Science and Technology (PCAST) will hold an open meeting. The agenda includes a discussion of transatlantic research and development cooperation. See, notice in the Federal Register, September 23, 2004, Vol. 69, No. 184, Pages 57029 - 57030. Location: Horizon Ballroom, Ronald Reagan Building, International Trade Center, 1300 Pennsylvania Ave., NW.

9:30 AM. The Senate Judiciary Committee will hold an executive business meeting. The agenda may include consideration of S 2560, "Inducing Infringement of Copyrights Act of 2004". Press contact: Margarita Tapia (Hatch) at 202 224-5225 or David Carle (Leahy) at 202 224-4242. Location: Room 226, Dirksen Building.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in NCR v. Palm. This is No. 04-1093. Location: Courtroom 203, 717 Madison Place, NW.

10:00 AM - 12:00 NOON. The World Radiocommunication Conference (WRC-07) Advisory Committee's Informal Working Group 5: Regulatory Issues will meet. See, FCC notice [PDF]. Location: FCC, Room 6-B516 (6th Floor South Conference Room).

12:15 PM. The Federal Communications Bar Association's (FCBA) Engineering & Technical Practice Committee will host a brown bag lunch. The topic will be "activities for the coming year". RSVP to Deborah Wiggins at Location: Goldberg Godles Wiener & Wright, 1229 19th St., NW.

Day two of a two day event hosted by the Department of Commerce's Bureau of Industry and Security titled "17th Annual Update Conference on Export Controls and Policy". Location: Washington DC.

Wednesday, October 6

8:30 AM - 12:15 PM. The U.S. Chamber of Commerce will host a conference, and release a report, both of which are titled "Sending the Right Signals: Promoting Competition Through Telecommunications". See, notice and agenda [PDF]. Location: U.S. Chamber of Commerce, 1615 K Street, NW.

9:00 AM - 4:00 PM. The Federal Communications Commission (FCC) will host a one day symposium titled "Unleashing the Educational Power of Broadband". See, notice and agenda [PDF]. The event will be webcast. Location: FCC, 445 12th Street, SW.

9:30 AM. The Senate Commerce Committee will hold a hearing to examine issues relating to the Federal Communications Commission's (FCC) e-rate subsidy program. Location: Room 253, Russell Building.

12:15 PM. The Federal Communications Bar Association's (FCBA) International Telecommunications Committee will host a brown bag lunch titled is "Planning Meeting to Discuss Proposed Programs and Obtain Suggestions for the Upcoming Year". RSVP to Evelyn Zamora at Location: Coudert Brothers, 1627 I Street, NW, 11th Floor.

Day one of a two day conference hosted by the National Institute of Standards and Technology (NIST), Department of Homeland Security (DHS) and the National Cyber Security Partnership's (NCSP) Coordinating Committee titled "Common Criteria Users' Forum". Amit Yoran, the Director of the DHS's National Cyber Security Division, will speak from 8:30 - 9:00 AM on October 6. The event is free for government employees. The price to attend is $100 for non-government employees. See, notice [PDF]. See also, the NCSP's April 2004 report [104 pages in PDF] containing recommendations regarding common criteria. Location: L'Enfant Plaza.

6:00 - 8:00 PM. The DC Bar Association's Intellectual Property Law Section and Litigation Section will host a continuing legal education (CLE) program titled "What You Need to Know About Copyright Damages". The speaker will be Terence Ross (Gibson Dunn & Crutcher). See, notice. Prices vary from $80 to $115. For more information, call 202 626-3488. Location: D.C. Bar Conference Center, B-1 Level, 1250 H Street, NW.

Thursday, October 7

8:45 AM - 5:00 PM. The Cato Institute will host a conference titled "Trade and the Future of American Workers". At 9:30 - 10:15 AM, Roger Ferguson (Vice Chairman of the Federal Reserve Board) will give the keynote address. At 1:15 - 2:00 PM, Sen. Chuck Hagel (R-NE) will speak. At 3:15 PM, Rep. Cal Dooley (D-CA) will speak. See, notice. Location: Cato, 1000 Massachusetts Avenue, NW.

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

9:30 AM - 4:30 PM. The Federal Communications Commission's (FCC) Office of Engineering and Technology (OET) will host an event titled "Radio Frequency Identification Workshop". See, notice and agenda [PDF]. The scheduled speakers include Chairman Michael Powell, Commissioners Kathleen Abernathy, Ed Thomas (Chief of the OET), and Julius Knapp (Deputy Chief of the OET). For more information, contact Bill Lane at or voice: 202-418-0676. The event will be webcast. Location: FCC, Commission Meeting Room (TW-C305), at 445 12th Street, SW.

The National Institute of Standards and Technology's (NIST) Computer Security Division will host a workshop titled "Personal Identity Verification of Federal Employees/Contractors ". See, NIST notice, and notice in the Federal Register, September 15, 2004, Vol. 69, No. 178, at Page 55586. Location: Hilton Hotel, Gaithersburg, MD.

Day two of a two day conference hosted by the National Institute of Standards and Technology (NIST), Department of Homeland Security (DHS) and the National Cyber Security Partnership's (NCSP) Coordinating Committee titled "Common Criteria Users' Forum". The event is free for government employees. The price to attend is $100 for non-government employees. See, notice [PDF]. Location: L'Enfant Plaza.

Friday, October 8

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in PC Connector v. SmartDisk. This is No. 04-1180. Location: Courtroom 203, 717 Madison Place, NW.

Deadline to submit comments to the Federal Communications Commission (FCC) in response to its notice of proposed rulemaking (NPRM) regarding its proposal to eliminate paper filings and require applicants to file electronically filings related to international telecommunications services. This NPRM is FCC 04-133 in IB Docket No.04-226. See, notice in the Federal Register, August 9, 2004, Vol. 69, No. 152, at Pages 48188 - 48192.

Deadline to submit comments to the Department of Homeland Security's (DHS) Transportation Security Administration (TSA) regarding its notice of proposed rulemaking (NPRM) in which its proposes to exempt the Registered Traveler Operations Files from several provisions of the Privacy Act. See, notice in the Federal Register, September 8, 2004, Vol. 69, No. 173, at Pages 54256 - 54258.

People and Appointments

9/30. Marcy Greene was named Assistant Division Chief of the Federal Communications Commission's (FCC) Enforcement Bureau's (EB) Telecommunications Consumers Division. The FCC stated in a release [PDF] that her responsibilities will include "managing and supervising investigations of potential violations of the Commission’s consumer protection rules for common carriers and other companies, as well as other matters."

9/29. William Swanson was named to the Board of Directors of Sprint. He is CEO of Raytheon Company. See, Sprint release.

9/28. BellSouth announced several changes in its Washington DC office. Gregg Morton was named VP of Legislation and Chief of Staff of the BellSouth Governmental Affairs, in Washington DC. He is a long time BellSouth employee, and a native of South Carolina. Robert Blau was named VP -- Public Policy Development. He had been VP -- Executive and Federal Regulatory Affairs. Jonathan Banks was named VP -- Executive and Federal Regulatory Affairs. Herschel Abbott remains VP -- Government Affairs. Bill McCloskey remains BellSouth's Washington DC press contact.

9/27. Marc Gary was named General Counsel of BellSouth. He joined BellSouth in 2000. Before that he was a partner at the law firm of Mayer Brown & Platt.

More News

9/30. The Senate Commerce Committee's Subcommittee on Communications held a hearing on the the security of the internet root servers and domain name system. See, prepared testimony of David Gross (Department of State), prepared testimony of John Kneuer (National Telecommunications and Information Administration), prepared testimony of Pat Twomey (P/CEO of the Internet Corporation for Assigned Names and Numbers), prepared testimony of Pat Morrissey (Department of Homeland Security), prepared testimony of Ari Balogh (VeriSign), and prepared testimony of Bill Manning (B Root Server).

9/30. The Federal Communications Commission's (FCC) Wireline Competition Bureau (WCB) released an Order [9 pages in PDF] that amends the timing provisions of its Order and Notice of Proposed Rulemaking [47 pages in PDF] released on August 20, 2004 in its proceeding on the Section 251 unbundling requirements of incumbent local exchange carriers. The August 20 Order and NPRM pertains to unbundling rules following the March 2, 2004 opinion [62 pages in PDF] of U.S. Court of Appeals (DCCir) in USTA v. FCC (USTA II). This present Order (and attached Protective Order) is DA 04-3152 in WC Docket No. 04-313 and CC Docket No. 01-338.

9/30. The Federal Communications Commission (FCC) released the text [119 pages in PDF] of its Report and Order to allow for the digital conversion of low power TV (LPTV) and TV translator stations. The FCC announced, but did not release, this item at its September 9, 2004 meeting. This item is FCC 04-220 in MB Docket 03-185.

9/30. The Government Accountability Office (GAO) released a report [58 pages in PDF] titled "Interdepartment Radio Advisory Committee: IRAC Representatives Effectively Coordinate Federal Spectrum but Lack Seniority to Advise on Contentious Policy Issues".

9/30. The Copyright Office (CO) published a notice in the Federal Register that summarizes and states the effective date (November 1, 2004) for its rule specifying notice and recordkeeping requirements governing the reporting of certain 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, Federal Register, September 30, 2004, Vol. 69, No. 189, at Pages 58261 - 58262.

9/29. The House Judiciary Committee (HJC) amended, and then approved by a vote of 19-12, those portions of HR 10, the "9-11 Recommendations Implementation Act", that fall within its jurisdiction. See, HJC release. Also on September 29, the House Financial Services Committee approved those portions of the bill that fall within its jurisdiction. See, HFSC release.

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