10/7. The Federal Communications Commission (FCC) released the agenda [PDF] for its meeting of Thursday, October 14, 2004. The agenda includes an NPRM in its broadband over powerline proceeding.

The FCC will consider a Report and Order regarding technical rules for broadband over powerline (BPL) systems. The FCC adopted its notice of proposed rulemaking (NPRM) at its February 12, 2004 meeting. This NPRM is FCC 04-29 in ET Docket No. 04-37. See, story titled "FCC Adopts Broadband Over Powerline NPRM" in TLJ Daily E-Mail Alert No. 836, February 13, 2004. The FCC released the text [38 pages in PDF] of this NPRM on February 23, 2004.

Also, on 9:30 AM on Tuesday, October 12, FCC Chairman Michael Powell and Federal Energy Regulatory Commission (FERC) Chairman Pat Wood will visit the City of Manasas for a tour of its BPL related facilities. This event will take place at Manassas Public Works building, 8500 Public Works Drive, Manassas, Virginia.

The FCC will consider a Seventh Report and Order regarding relocation of federal government users from the 1710-1755 MHz band to make the band available for Advanced Wireless Services (AWS) such as Third Generation (3G) wireless services. This proceeding is ET Docket No. 00-258 and WT Docket No. 02-8.

The FCC will consider a notice of inquiry (NOI) regarding the possible effects of foreign mobile termination rates on U.S. customers and competition in the U.S. telecommunications services market. This is IB Docket Nos. 02-324 and 96-261.

The FCC will consider an Order on Reconsideration regarding requests from BellSouth and SureWest to reconsider and/or clarify various broadband unbundling obligations. This is CC Docket No. 01-338, CC Docket No. 96-98, and CC Docket No. 98-147.

The FCC will consider an Order on Reconsideration regarding its payphone compensation rules. This proceeding is CC Docket No. 96-128.

Finally, the FCC will consider a notice of proposed rulemaking (NPRM) concerning § 251(h)(2). This pertains to Mid-Rivers Telephone Cooperative, Inc.'s petition that it be declared the incumbent local exchange carrier (ILEC) in a town in the state of Montana. This proceeding is WC Docket No. 02-78.

The meeting is scheduled for 9:30 AM at the FCC, in Room TW-C305 (Commission Meeting Room), 445 12th Street, SW. The meeting will be webcast by the FCC.

10/7. The House amended and approved HR 4661, the "Internet Spyware (I-SPY) Prevention Act of 2004", by a vote of 415-0. See, Roll Call No. 503.

This is the House Judiciary Committee's spyware bill. It amends Title 18 to provide criminal penalties for three of the most egregious uses of spyware.

The House approved HR 2929, the "Securely Protect Yourself Against Cyber Trespass Act", or SPY ACT, on October 5, by a vote of 399-1. See, Roll Call No. 495. HR 2929 is the House Commerce Committee's spyware bill. It prohibits certain conduct with respect to spyware, and gives the Federal Trade Commission (FTC) civil enforcement authority.

Rep. Bob Goodlatte (R-VA) (at right), the sponsor of the bill, stated on the floor of the House on October 6 that "Spyware is software that provides a tool for criminals to crack into computers to conduct nefarious activities, such as altering a user's security settings, collecting personal information to steal a user's identity, or to commit other crimes. The I-SPY Prevention Act would impose criminal penalties on the most egregious behaviors associated with spyware. Specifically, this legislation would impose up to a 5-year prison sentence on anyone who uses software to intentionally break into a computer and uses that software in furtherance of another Federal crime. In addition, it would impose up to a 2-year prison sentence on anyone who uses spyware to intentionally break into a computer and either alter the computer's security settings or obtain personal information with the intent to defraud or injure a person or with the intent to damage a computer."

Rep. Zoe Lofgren (D-CA), a cosponsor, stated that "Spyware also adversely affects the business community which must spend money to block and remove it from their systems. Microsoft has stated that spyware is ``at least partially responsible for approximately one-half of all application crashes'' reported to them. Experts estimate that as many as 80 to 90 percent of all personal computers contain some form of spyware. Earthlink recently identified more than 29 million spyware programs. In short, spyware is a very real problem that is endangering consumers, damaging businesses, and creating millions of dollars of additional costs."

HR 4661 adds a new Section 1030A to the Criminal Code titled "Illicit indirect use of protected computers". It creates three criminal prohibitions.

First, it prohibits use of spyware in furtherance of other federal crimes. It provides that "Whoever intentionally accesses a protected computer without authorization, or exceeds authorized access to a protected computer, by causing a computer program or code to be copied onto the protected computer, and intentionally uses that program or code in furtherance of another Federal criminal offense shall be fined under this title or imprisoned not more than 5 years, or both."

Second, it prohibits of spyware related theft of personal information with intent to defraud. It provides that "Whoever intentionally accesses a protected computer without authorization, or exceeds authorized access to a protected computer, by causing a computer program or code to be copied onto the protected computer, and by means of that program or code ... intentionally obtains, or transmits to another, personal information with the intent to defraud or injure a person or cause damage to a protected computer ... shall be fined under this title or imprisoned not more than 2 years, or both."

Third, it prohibits spyware related impairment of computer security features. It provides that "Whoever intentionally accesses a protected computer without authorization, or exceeds authorized access to a protected computer, by causing a computer program or code to be copied onto the protected computer, and by means of that program or code ... intentionally impairs the security protection of the protected computer ... shall be fined under this title or imprisoned not more than 2 years, or both."

HR 4661 also precludes certain private civil litigation based upon violation of these new prohibitions. It provides that "No person may bring a civil action under the law of any State if such action is premised in whole or in part upon the defendant's violating this section."

The bill also includes an authorization for the appropriation of $10 Million for each of fiscal years 2005 through 2008 for prosecutions related to spyware and phishing.

The version of the bill just approved by the House adds a new provision that was not in the bill approved by the House Judiciary Committee, that exempts law enforcement, investigative, and intelligence activities of government entities. It provides that "This section does not prohibit any lawfully authorized investigative, protective, or intelligence activity of a law enforcement agency of the United States, a State, or a political subdivision of a State, or of an intelligence agency of the United States." This new provision was requested by the Department of Justice (DOJ).

On June 23, 2004, Rep. Goodlatte, Rep. Lofgren, and Rep. Lamar Smith (R-TX) introduced HR 4661 the "Internet Spyware (I-SPY) Prevention Act of 2004". See, story titled "Judiciary Committee Members Introduce Spyware Bill" in TLJ Daily E-Mail Alert No. 928, June 29, 2004,

The House Judiciary Committee approved its bill on September 8. See, story titled "House Judiciary Committee Approves Spyware Bill" in TLJ Daily E-Mail Alert No. 973, September 9, 2004.

10/7. The Government Accountability Office (GAO) released a report [77 pages in PDF] titled "U.S.-China Trade: Opportunities to Improve U.S. Government Efforts to Ensure China's Compliance with World Trade Organization Commitments".

The report finds that "China has successfully implemented many of its numerous WTO commitments, including rewriting hundreds of trade-related laws and regulations and making required tariff reductions. However, USTR’s reports to Congress identified over 100 individual compliance problems concerning China’s implementation of its WTO commitments, according to our analysis."

The report states that the PR China has "weak intellectual property right enforcement, which may entail industry losses of nearly $2 billion according to some industry estimates, ..."

"China has had mixed success in resolving compliance problems", the GAO report continues. "For example, among the key areas that USTR identified as priorities, China resolved or made progress on well over half of the various problems in agriculture and services, while progress on intellectual property rights was limited to less than a quarter of the individual problems reported as of December 2003."

The report was prepared for the Chairmen of the Senate Finance Committee and the House Ways and Means Committee.

10/6. The U.S. Chamber of Commerce hosted a conference, and released a report [161 pages in PDF], both titled "Sending the Right Signals: Promoting Competition Through Telecommunications". See also, abridged version [16 pages in PDF].

The report states that "regulators have placed an overreliance on network-sharing regulations by dictating the prices entrants pay to use existing facilities. In turn, regulators have placed entirely too little emphasis on policy measures that would enlist new entry."

The report makes the following policy recommendations:

• "Phase out wholesale access based on theoretical costs in favor of the basic price-setting mechanism now used for total service resale and sunset such price controls (perhaps after three to five years)."
   
• "Expeditiously allocate at least 438 MHz of additional prime radio spectrum for flexible use by competitive wireless licensees."
   
• "Declare both cable modem and DSL services to be information services, which are not subject to common carrier regulatory obligations, and preempt state regulation of these services under the guise of ``open access.´´"
   
• "Extend to all VoIP services the FCC declaration of Internet-only VoIP as ``information services´´ not subject to regulation and preempt Internet phone service from state regulation, specifically leaving the quality of service unregulated."
   
• "Raise funds for universal service in a competitively neutral manner. Funds should be appropriated from general revenues or generated via a relatively nondistortionary telecommunications tax, for example, a fixed monthly fee levied on each telephone number."
   
• "Distribute universal service funds via consumer vouchers, not with payments to telephone companies, to allow competition among suppliers and choices for customers. This would allow consumers to select the most appropriate technology for their needs rather than being forced to use wirelines."

The reports argues that implementing these policies would increase gross domestic product and create jobs.

The report was written by Thomas Hazlett (Manhattan Institute), Coleman Bazelon (Analysis Group), John Rutledge (Rutledge Capital), and Deborah Hewitt (William and Mary).

10/7. The House approved the conference report on HR 4520, the "American Jobs Creation Act of 2004", by a vote of 280-141. See, Roll Call No. 509. The Senate is scheduled to consider this conference report on Friday, October 8.

10/7. The Senate Judiciary Committee did not mark up S 2560, the "Inducing Infringement of Copyrights Act of 2004". The most recent of many negotiating sessions was held Wednesday afternoon and evening, October 6, 2004.

10/7. The Department of Homeland Security (DHS) announced that it will create a program "to ensure that electronic and information technology is accessible for employees and consumers with disabilities", pursuant to Section 508 of the Workforce Investment Act of 1998. See, DHS release.

10/4. The National Telecommunications and Information Administration (NTIA) announced the award of $14.4 Million in Technology Opportunities Program (TOP) grants. See, NTIA release.

The House may meet at 9:00 AM. See, Republican Whip Notice.

The Senate will meet a 9:00 AM. It is scheduled to consider the conference report to HR 4520, the JOBS bill.

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.

Columbus Day. The Federal Communications Commission (FCC) and other federal offices will be closed. See, Office of Personnel Management's (OPM) list of federal holidays.

POSTPONED. 9:00 AM - 2:00 PM. The American Enterprise Institute (AEI) will host an event titled "The Proper Direction for Telecommunications Reform Legislation". Duane Ackerman, Chairman of BellSouth, will give the luncheon address. See, notice. Location: AEI, 12th Floor, 1150 17th Street, NW.

1:00 - 4:00 PM. The Department of Homeland Security's (DHS), Directorate of Information Analysis and Infrastructure Protection's (IAIP), National Infrastructure Advisory Council (NIAC) will meet. The NIAC provides advice on the security of information systems for critical infrastructure supporting other sectors of the economy, including banking and finance, transportation, energy, manufacturing, and emergency government services. See, notice in the Federal Register, September 28, 2004, Vol. 69, No. 187, at Pages 57951 - 57952. Location: Hamilton Crowne Plaza Hotel, 529 14th & K St., NW.

Deadline to submit comments to the Federal Communications Commission (FCC) in response to its notice of proposed rulemaking (NPRM) regarding amendments to FCC rules to permit VHF public coast (VPC) and automated maritime telecommunications system (AMTS) licensees to provide private mobile radio service to units on land. This NPRM is FCC 04-171 in WT Docket No. 04-257 and RM-10743. See, notice in the Federal Register, August 10, 2004, Vol. 69, No. 153, at Pages 48440 - 48443.

Deadline to submit comments to the Federal Communications Commission (FCC) in response to its notice of proposed rulemaking (NPRM) to examine the proper number of end user common line charges that carriers may assess upon customers that obtain derived channel T-1 service where the customer provides the terminating channelization equipment and upon customers that obtain Primary Rate Interface (PRI) Integrated Service Digital Network (ISDN) service. This NPRM is FCC 04-174 in WC Docket No. 04-259 and RM-10603. See, notice in the Federal Register, August 13, 2004, Vol. 69, No. 156, at Pages 50141 - 50146.

Extended extended deadline to submit comments to the Federal Communications Commission (FCC) in response to its public notices (DA 04-1690, DA 04-1758, and DA 04-2906) 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. This proceeding is MB Docket No. 04-228. See, notice in the Federal Register, September 15, 2004, Vol. 69, No. 178, at Pages 55630 - 55631.

12:00 NOON - 2:00 PM. The Progress and Freedom Foundation (PFF) will host a luncheon titled "Innovation Agenda 2004". The featured speaker will be James Crowe, the CEO of Level 3 Communications. The other speakers will be Scott Cleland (The Precursor Group), Rebecca Arbogast (Legg Mason Equity Research), and Jessica Zufolo (Medley Global Advisors). See, notice and registration page. Location: Mandarin Oriental hotel, 1330 Maryland Ave., SW.

12:00 NOON. The Federal Communications Bar Association Foundation's Board of Trustees will meet. Location: Wiley Rein & Fielding, 1776 K Street, NW.

12:15 PM. The Federal Communications Bar Association's (FCBA) Mass Media Practice Committee will host a brown bag lunch on DTV transition. The speaker will be Rick Chessen, Associate Chief of the FCC's Media Bureau's (MB) Digital Television Task Force. No RSVP is required. For more information, contact Frank Jazzo at jazzo@fhhlaw.com. Location: National Association of Broadcasters, 1771 N Street, NW.

2:00 - 4:30 PM. The American Enterprise Institute (AEI) will host a panel presentation titled "Comparing the New York Stock Exchange, NASDAQ, and the Electronic Communications Networks". The speakers will be Kenneth Lehn, Sukesh Patro, and Kuldeep Shastri (all of the University of Pittsburgh). See, notice and registration page. Location: AEI, Twelfth floor, 1150 17th St., NW.

6:00 - 8:15 PM. The DC Bar Association's Intellectual Property Law Section and Employment Law Section will host a continuing legal education (CLE) program titled "Secrets of the Uniform Trade Secrets Act". The speakers will be Milton Babirak (Babirak Vangellow & Carr). 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.

Day one of a three day convention of the American Intellectual Property Law Association (AIPLA). See, conference web site and schedule [PDF]. Location: Grand Hyatt Washington, 1000 H St., NW.

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

9:00 AM - 5:00 PM. The Cato Institute will host a conference titled "International Monetary Reform and Capital Freedom". Among the topics on the agenda is "exchange rate protectionism". See, notice and agenda. Location: Cato, 1000 Massachusetts Ave., NW.

12:00 NOON - 2:00 PM. The DC Bar Association's Law Practice Management and Litigation Sections will host a program titled "Electronic Legal Research: New Options And Issues For Small And Large Firms". The speakers will be Elizabeth LeDoux (Training & Research Librarian at Covington & Burling), Howard Sinclair (Librarian at Kilpatrick & Stockton), and Monique LaForce (Manager Research Services at Steptoe & Johnson). See, notice. Prices vary from $15 to $20. For more information, call 202 626-3463. Location: D.C. Bar Conference Center, B-1 Level, 1250 H St., NW.

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 zamorae@coudert.com. Location: Coudert Brothers, 1627 I Street, NW, 11th Floor.

4:00 PM. Rochelle Dreyfuss (New York University School of Law) will present a paper titled "TRIPing over Patent Reform" at an event hosted by the Dean Dinwoodey Center for Intellectual Property Studies at the George Washington University Law School (GWULS). For more information, contact Robert Brauneis at 202 994-6138 or rbraun@law.gwu.edu. The event is free and open to the public. See, notice. Location: GWULS, Faculty Conference Center, Burns Building, 5th Floor, 716 20th St., NW.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Public Notice [PDF] requesting interested parties to provide comments on the Multi-band OFDM Alliance Special Interest Group's (MBOASIG) request for a waiver of Part 15 of the FCC's rules regarding ultra-wideband (UWB) systems that employ multi-band orthogonal frequency division multiplexed (MBOFDM) modulation techniques.

Day two of a three day convention of the American Intellectual Property Law Association (AIPLA). Jon Dudas, the Director of the U.S. Patent and Trademark Office (USPTO) will give a speech titled "American Ingenuity: What the USPTO is Doing for You" at a luncheon scheduled for 12:15 - 1:45 PM. See, conference web site and schedule [PDF]. Location: Grand Hyatt Washington, 1000 H St., NW.

12:00 NOON - 2:00 PM. The Progress and Freedom Foundation (PFF) will host a Congressional seminar titled "Reinventing the FCC for the Digital Age". The speakers will be Tom Lenard (PFF), Randolph May (PFF), James Miller (former head of the Office of Management and Budget and the Federal Trade Commission), Darius Gaskins (former Chairman of the Interstate Commerce Commission), and Susan Ness (former FCC commissioner). See, notice and registration page. Lunch will be served. Location: Room 1539, Longworth Building.

Deadline to submit comments to the Federal Communications Commission (FCC) regarding the high cost universal support mechanisms for rural carriers and the appropriate rural mechanism to succeed the five year plan adopted in the Rural Task Force Order. See, notice in the Federal Register, September 3, 2004, Vol. 69, No. 171, at Pages 53917 - 53923.

Extended deadline to submit comments to the Federal Communications Commission (FCC) in response to its Notice of Inquiry (NOI) [15 pages in PDF] regarding "issues relating to the presentation of violent programming on television and its impact on children." This NOI is FCC 04-175 in MB Docket No. 04-261. See, story titled "FCC Issues NOI on Violent TV Programming" in TLJ Daily E-Mail Alert No. 950, August 2, 2004. See also, Order [PDF] extending the deadlines.

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