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October 20, 2004, 9:00 AM ET, Alert No. 1,000.
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Powell Discusses VOIP Regulation

10/19. Federal Communications Commission (FCC) Chairman Michael Powell gave a speech [5 pages in PDF] at the Voice on the Net Conference in Boston, Massachusetts. He said that the FCC needs a "new Constitution for the regulation of services" such as voice over internet protocol (VOIP). But, he did not spell out the contents of this new constitution.

He said that there is a VOIP revolution under way. He compared this revolution to the revolutions in which thirteen American colonies won their independence from the British Empire, and then drafted the Constitution, over two centuries ago.

Michael PowellPowell (at left) proclaimed that "We, too, need a new Constitution for the regulation of services, one befitting that revolution. Many regulators have protested change, saying that VoIP is just a different way to make a phone call. But isn't that the point! It is a different way, and it deserves a different regulatory structure that reflects its unique qualities."

"I support a different way for voice over the Internet," said Powell. "It's wrong, just plain wrong to not recognize the potential of VoIP, or to see it through the lens of the old telephone network regulatory model. VoIP is a data application and as such has all the hallmarks of the Internet itself."

He did not offer his view of what the new regulatory constitution should be. However, he did touch vaguely on some of its elements.

He said that "There is no need to organize the regulatory regime around per minute prices and costs as we have done with common carriers. VoIP service is offered in flat bundles, recognizing the efficiency and small incremental costs of information services. We have seen the great advantages of cell phone buckets of minutes and what that did to increasingly erase the idea of long distance as a distinct service. VoIP will complete the circle and collapse any such geographic distinctions in all voice service."

He also stated that "Like the Internet, IP data communications knows no borders. ... If it were true of the Internet generally, it is unquestionably true of VoIP. This has profound implications for the traditional common carrier regulatory model. And bold action is needed."

"The first step in getting policy pointed in the right direction is for the Commission to step forward and affirmatively establish jurisdiction over these services. That is why I will present to my colleagues for a decision the question of whether VoIP services -- like Vonage -- should be subject to exclusive federal jurisdiction. We cannot avoid this question any longer. To hold that packets flying across national and indeed international digital networks should be subject to state commission economic regulatory authority is to dumb down the Internet to match the limited vision of government officials. That would be a tragedy", said Powell.

He added that "I look forward to working with my state and federal colleagues -- indeed my international colleagues -- to ensure that a minimal, well-harmonized regulatory environment is applied to VoIP services."

Powell said nothing in his prepared text about most of the regulatory issues pertaining to VOIP that are currently being debated. For example, he said nothing about specific issues, such as CALEA, universal service, E911, consumer protection, disability access, state and local taxation, numbering, or voice spam. Nor did he address what a new regulatory paradigm might be.

Nor did he discuss whether the FCC should mandate network neutrality. However, he again outlined what he calls "Internet Consumer Freedoms". He said that these are "(1) Freedom to Access Content: Consumers should have access to their choice of legal content; (2) Freedom to Use Applications: Consumers should be able to run applications of their choice; (3) Freedom to Attach Personal Devices: Consumers should be permitted to attach any devices they choose to the connection in their homes; and (4) Freedom to Obtain Service Plan Information: Consumers should receive meaningful information regarding their service plans." But again, he stopped short of saying that any of these should be mandated by the government.

8th Circuit Addresses Derivative Works and Fair Use

10/19. The U.S. Court of Appeals (8thCir) issued its opinion [10 pages in PDF] in Mulcahy v. Cheetah, a copyright case involving the issues of derivative works and fair use.

Rita Mulcahy authored, and holds the copyright for, a work titled "PMP Exam Prep." It is used by students in her course to prepare for the Project Management Professional (PMP) Exam given by the Project Management Institute (PMI).

The PMI published a copyrighted work titled "Guide to the Project Management Body of Knowledge". Its exams test knowledge of the contents of this work. Mulcahy's work, in turn, is based upon this work.

Cheetah Learning is a competitor of Mulcahy. Its course materials contain material copied from Mulcahy's work.

Mulcahy filed a complaint in U.S. District Court (DMinn) alleging copyright infringement and unfair competition. The District Court granted partial summary judgment on the copyright claim, and an injunction, to Mulcahy.

The Court of Appeals reversed. It held that there are questions of fact on two issues: first, whether Mulcahy's work was an unauthorized derivative work of PMI's work, and second, whether Cheetah's copying from Mulcahy's work was fair use.

This case is Rita Mulcahy v. Cheetah Learning LLC and Jeff Schurrer, App. Ct. No. 03-3112, an appeal from the U.S. District Court for the District of Minnesota.

GAO Reports on Federal Networks that Support Homeland Security

10/19. The Government Accountability Office (GAO) released a report [66 pages in PDF] titled "Information Technology: Major Federal Networks That Support Homeland Security Functions".

The report states that "we identified 34 major networks that support homeland security functions -- 32 operational and 2 in development. Twenty-one of the 34 are single-agency networks, indicating that they are used only for internal agency communications. Further, 6 of the 34 networks share information with state and local governments; 4 share information with the private sector. One of the 2 networks under development  -- the Department of Homeland Security’s (DHS) Homeland Secure Data Network -- is intended to become a significant vehicle for future sharing of homeland security information with state and local governments and classified information among civilian agencies. The other network in development, the Department of Justice’s JUTNet (Justice United Telecommunications Network), is to replace the department’s existing network and transport information among departmental components."

The report adds that "Agencies also identified the Internet as a major network for supporting homeland security functions. Cost data were not available for all networks, but of the networks for which data were available, estimates totaled about $1 billion per year for fiscal years 2003 and 2004."

The report also states that "agencies provided descriptions of over 100 applications as examples of those that use existing networks, including the Internet, to share information in support of homeland security. For example, DHS’s United States Visitor and Immigrant Status Indicator Technology (US-VISIT) collects, maintains, and shares information on foreign nationals with the Departments of Commerce, Justice, State, and Transportation using its ICENet (Immigration and Customs Enforcement Network). And, the Department of Defense’s Modernized Intelligence Data Base supports anti-terrorist activities through near-real-time, synchronized dissemination of military intelligence using its JWICS (Joint Worldwide Intelligence Communications System) network." (Parentheses in original.)

People and Appointments

10/19. Lisa Gelb was named Deputy Bureau Chief of the Federal Communications Commission's (FCC) Wireline Competition Bureau (WCB). She will oversee the WCB's Telecommunications Access Policy Division (TAPD) and the Pricing Policy Division (PPD). She previously worked for three years in the Office of the City Attorney in San Francisco. Before that, she worked at the FCC. See, FCC release.

10/19. The Board of Directors of Comcast Corporation elected Joseph Collins to be an independent director. From 1989 through 2001 he was Ch/CEO of Time Warner Cable. He was then Ch/CEO of AOL Time Warner Interactive Video. He has retired from Time Warner, but currently is the Chairman of Aegis, LLC. See, Comcast release.

More News

Kenneth Juster10/12. Kenneth Juster (at right), head of the Department of Commerce's (DOC) Bureau of Industry and Security (BIS), gave a speech titled "Cybersecurity: A Key to U.S.-India Trade" in New Delhi, India. He said that cybersecurity "is one of the keys to unlocking the full potential of the trade and technology relationship between the United States and India. All levels of society today -- from individuals, to companies, to governments -- rely on information technology and information networks in their daily lives -- to communicate, to manage activities, to transact business, and to provide essential services to the public." He added that "consumers and corporations will seek to ensure that their personal information and business proprietary data are secure, and that information services are reliable and protected. Without an adequate level of security, we run the risk of backlash among consumers and loss of confidence among business people, which could severely limit progress in our trade and technology relationship."

10/19. The U.S. Patent and Trademark Office (USPTO) announced that it has established a nanotechnology cross-reference digest. It is designated Class 977/Dig.1, and titled "Nanotechnology". See, USPTO release.

10/19. Alan Greenspan, Chairman of the Federal Reserve Board, gave a speech titled "The mortgage market and consumer debt" in which he stated that "improvements in lending practices driven by information technology have enabled lenders to reach out to households with previously unrecognized borrowing capacities. This extension of lending has increased overall household debt but has probably not meaningfully increased the number of households with already overextended debt."

10/19. The Department of Commerce (DOC) announced that it will award $399,500 for the establishment of an office in Beijing for China Standards and Conformity Assessment (CSCA). This is an initiative of The American Society of Mechanical Engineers (ASME), The American Petroleum Institute (API), ASTM International, and CSA America. See, DOC release.

Washington Tech Calendar
New items are highlighted in red.
Wednesday, October 20

The House is in recess until November 16, 2004. See, Republican Whip Notice.

The Senate is in recess until November 16, 2004.

8:00 AM. The Federal Communications Bar Association (FCBA) will host a breakfast. The speaker will be Dan Glickman, the new head of the Motion Picture Association of America (MPAA). Location: Capitol Hilton, 16th & K Streets, NW.

9:30 - 11:00 AM. The Progressive Policy Institute (PPI) will host a panel discussion titled "Privacy vs. Security: A False Choice?". The speakers will be Paul Rosenzweig (Heritage Foundation), David Sobel (Electronic Privacy Information Center), and Robert Atkinson (Director of the PPI's Technology and New Economy Project). See, notice. Location: PPI, 600 Pennsylvania Ave., SE, Suite 400.

10:00 AM - 3:00 PM. The Department of Justice (DOJ), the Motion Picture Association of America (MPAA) and the Recording Industry Association of America (RIAA), CourTV, and other entities will host a forum for students on intellectual property theft. Attorney General John Ashcroft will speak at 11:00 AM. Deputy Attorney General James Comey will also participate. The DOJ notice states that "All event activities are open press". Location: Great Hall, DOJ, 950 Pennsylvania Ave., NW.

10:00 AM. Jeffrey Carlisle, Chief of the Federal Communications Commission's (FCC) Wireline Communications Bureau (WCB), will hold an event titled "briefing for members of the media". RSVP to Mark Wigfield at 202 418-0253. Location: FCC, 445 12th St., SW, Room TW A-402/A-442.

11:00 AM - 12:30 PM. The Cato Institute will host a panel discussion titled "The Next Big Thing in Copyright? The Induce Act and Contributory Liability". Location: Cato, 1000 Massachusetts Ave., NW.

12:15 PM. The New America Foundation (NAF) will host a brown bag lunch. The speaker will be Leo Hindery (Chairman of HL Capital and Former CEO of TCI and AT&T Broadband). RSVP to Jennifer Buntman at 202 986-4901 or Location: NAF, 1630 Connecticut Ave., NW, 7th Floor.

6:00 - 8:15 PM. The DC Bar Association's Computer and Telecommunications Law Section will host a continuing legal education (CLE) program titled "Ethics and the Internet". The speaker will be J.T. Westermeier (Piper Rudnick). 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 St., NW.

Thursday, October 21

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in In Re AT&T, No. 03-1397. Judges Ginsburg, Sentelle and Randolph will preside. Location: Prettyman Courthouse, 333 Constitution Ave., NW.

12:00 NOON. The Heritage Foundation will host a panel discussion titled "Secure Flight: Screening for Terrorists on Passenger Planes". The speakers will be Justin Oberman (Transportation Security Administration), Lisa Dean (TSA), and Paul Rosenzweig (Heritage). See, notice. Location: 214 Massachusetts Ave., NE.

12:15 PM. The Federal Communications Bar Association's (FCBA) Cable Practice Committee will host a brown bag lunch. Jeffrey Carlisle, Chief of the Federal Communications Commission's (FCC) Wireline Competition Bureau will speak on "VOIP and Cable". RSVP to Frank Lloyd 202 434-7309 or Location: 9th Floor, Mintz Levin, 701 Pennsylvania Ave., NW.

4:00 PM. Michael Carrier (Rutgers University Law School) will present a paper titled "Cabining Intellectual Property Through a Property Paradigm" 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 The event is free and open to the public. See, notice. Location: GWULS, Faculty Conference Center, Burns Building, 5th Floor, 716 20th Street, NW.

5:30 - 7:30 PM. The DC Bar Association's Intellectual Property Law Section will host an event titled "Intellectual Property Law Section Fall Reception". See, notice. Prices vary from $25 - $50. For more information, call 202 626-3463. Location: The Club at Franklin Square, 1300 Eye Street, NW, Lobby Level.

6:00 - 8:00 PM. The Federal Communications Bar Association (FCBA) will host the first part of a two part continuing legal education (CLE) seminar on Homeland Security. Prices vary. See, notice. Location: FCC, Commission Meeting Room, 445 12th St., SW.

Friday, October 22

12:15 PM. The Federal Communications Bar Association's (FCBA) Young Lawyers Committee will host a brown bag lunch. Harry Martin (President of the FCBA) and Michele Farquhar (President-Elect of the FCBA) will speak on involvement in the FCBA and building a career in communications law. For more information, contact Jason Friedrich at or Pam Slipakoff at Location: Drinker Biddle & Reath, 1500 K Street NW, Suite 1100.

LOCATION CHANGE. 12:30 - 2:00 PM. The Congressional Internet Caucus Advisory Committee, the Federal Trade Commission (FTC), and the National Cyber Security Alliance (NCSA) will host a panel discussion titled "Computer Security: What Your Constituents Need to Know". The speakers will be FTC Commissioner Orson Swindle, Susan Koehler (Microsoft), Martha Lockwood, (NCSA), and Wendy Tazelaar ( Lunch will be served. Registration is required; contact or 202 638-4370. Location: Cannon Caucus Room.

Monday, October 25

Day one of a five day conference hosted by the Office of the Secretary of Defense (OSD) Networks and Information Integration (NII) and the Joint Chiefs of Staff titled "7th Annual DoD Spectrum Management Conference". See, notice. Location: Radisson Hotel, Annapolis, Maryland.

Tuesday, October 26

9:30 AM. The Department of Commerce's (DOC) Bureau of Industry and Security's (BIS/BXA) Sensors and Instrumentation Technical Advisory Committee (SITAC) will hold a partially closed meeting. The agenda includes discussion of Wassenaar Export Group proposals on semiconductor lasers and cameras. See, notice in the Federal Register, October 8, 2004, Vol. 69, No.195, at Page 60352. Location: Room 3884, DOC, 14th Street between Constitution and Pennsylvania Aves., NW.

Day two of a five day conference hosted by the Office of the Secretary of Defense (OSD) Networks and Information Integration (NII) and the Joint Chiefs of Staff titled "7th Annual DoD Spectrum Management Conference". See, notice. Location: Radisson Hotel, Annapolis, Maryland.

Deadline to submit reply comments to the Library of Congress in response to its notice of proposed rulemaking (NPRM) regarding continuation, with a few modifications, of the procedures adopted by the Copyright Office in 1995 that permit copyright applicants to request reconsideration of decisions to refuse registration. See, notice in the Federal Register, July 13, 2004, Vol. 69, No. 133, at Pages 42004-42007.

Wednesday, October 27

10:00 AM - 3:00 PM. The Federal Communications Commission's (FCC) Technology Advisory Council will meet. The topic will be ultrawideband (UWB) technology. See, FCC notice [PDF], and notice in the Federal Register, September 28, 2004, Vol. 69, No. 187, at Page 57915. Location: FCC, 445 12th St. SW., Room TW-C305.

2:00 - 4:00 PM. The Department of State's Telecommunication Advisory Committee (ITAC) will meet. See, notice in the Federal Register, October 14, 2004, Vol. 69, No. 198, at Page 61066.

Day three of a five day conference hosted by the Office of the Secretary of Defense (OSD) Networks and Information Integration (NII) and the Joint Chiefs of Staff titled "7th Annual DoD Spectrum Management Conference". See, notice. Location: Radisson Hotel, Annapolis, MD.

Deadline to submit comments to the Department of Commerce's Technology Administration in response to its request for comments regarding the recycling of electronics equipment, such as flat panel monitors. See, TA notice.

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