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November 10, 2004, 9:00 AM ET, Alert No. 1,015.
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FCC Adopts Order on Vonage's VOIP Petition

11/9. The Federal Communications Commission (FCC) adopted, but did not release, a Memorandum Opinion and Order that addressed Vonage Holdings Corporation's Petition for Declaratory Ruling regarding its DigitalVoice service in the state of Minnesota. The FCC found that Vonage's voice over internet protocol (VOIP) service, which is named DigitalVoice, is an interstate service, and that Minnesota cannot regulate as it had proposed in a September 2003 order. However, the FCC's order leaves many VOIP related issued to be decided by other proceedings, and perhaps, court opinions and/or legislation.

FCC Memorandum Opinion and Order. The FCC issued only a short release [2 pages in PDF] that provides a cursory description of this item. Also, four Commissioners issued separate statements, and Wireline Competition Bureau (WCB) Bureau Chief Jeffrey Carlisle answered questions from reporters after the FCC meeting. This item is FCC 04-267 in WC Docket No. 03-211.

The FCC release states that "the FCC found that the company's DigitalVoice service cannot practically be separated into intrastate and interstate components, precluding dual state and federal regulatory regimes. DigitalVoice customers can use their phones from a broadband connection anywhere in the world, making it difficult to determine whether a call is local, interstate or international in nature."

The FCC release also states that the FCC "found that regulations that would have been imposed by the Minnesota Commission were inconsistent with the FCC’s deregulatory policies, and that preemption was consistent with federal law and policies intended to promote the continued development of the Internet, broadband and interactive services." The release also offers this rationale: "Divergent state rules, regulations and licensing requirements could impede the rollout of such services that benefit consumers by providing them with more choice, competition and innovation."

However, the FCC release devotes more words to listing what the FCC order does not decide. First, it states that this order "does not signal that Vonage may cease its efforts to develop workable solutions. The Commission looks forward to addressing public safety issues comprehensively, with the participation of our state and local colleagues, in the broader IP Enabled Services Proceeding."

This refers to the FCC's notice of proposed rulemaking (NPRM) [97 pages in PDF] regarding regulation of internet protocol services, including voice over internet protocol (VOIP). This NPRM is FCC 04-28 in Docket No. WC 04-36. See, story titled "FCC Adopts NPRM Regarding Regulation of Internet Protocol Services" in TLJ Daily E-Mail Alert No. 837, Monday, February 16, 2004. See also, notice in the Federal Register, March 29, 2004, Vol. 69, No. 60, at Pages 16193 - 16202.

The FCC release further states that the order "does not express an opinion about the applicability to Vonage of general laws in Minnesota governing taxation, fraud, commercial dealings, marketing, advertising and other business practices. But the Commission expects states to continue playing a vital role in protecting consumers from fraud, responding to complaints, and enforcing fair business practices."

Finally, the FCC release states that "the question of whether DigitalVoice should be classified as an unregulated ``information service´´ under the Communications Act or a telecommunications service will be addressed in the Commission’s IP-Enabled Services Proceeding. The Commission will also address whether VoIP providers must provide access to the disabled, pay intercarrier compensation and contribute to the universal service fund, in the Commission's IPEnabled Services Proceeding, which commenced in February of this year."

Chairman Powell summed up the order. "This decision today decides who has to decide." And, he said, this "one of the many landmark days of a phone revolution".

Minnesota Proceeding. On July 15, 2003, the Minnesota Department of Commerce (MDOC) filed an administrative complaint against Vonage with the Minnesota Public Utilities Commission (MPUC) alleging that Vonage offers telephone services in Minnesota, including local exchange service and long distance service, without a certificate under Minn. Stat. §§ 237.16 and 237.74, for those services. The complaint also alleges that Vonage violates Minnesota law by failing to provide 911 service.

On September 13, 2003, the MPUC issued its Order Finding Jurisdiction and Requiring Compliance [9 pages in PDF] finding that the MPUC has jurisdiction, and that Vonage must comply with Minnesota laws that regulate telephone companies, including obtaining certification from the state, complying with 911 rules, and paying 911 fees.

Vonage's FCC Petition. Vonage filed its petition with the FCC on September 22, 2003. See, part 1, part 2, part 3, part 4, part 5, and part 6 [slow downloading PDF scans].

It wrote that "The State of Minnesota is now seeking to impose common carrier regulation on the “intrastate’’ use of Vonage’s Internet application, on the theory that this service is “functionally the same as” a telephone service. If the State is permitted to enforce its order, Vonage -- and presumably other providers of two-way Internet communications applications available to residents of Minnesota -- would be required to obtain state certification before allowing Internet users physically located in Minnesota (assuming it could identify them) to use such services to communicate with other Minnesotans. Because Internet applications like Vonage’s service were designed to be provided ubiquitously over the Internet, neither Vonage nor other developers of similar Internet communications technologies can reasonably be expected to ever obtain a telecommunications carrier certification. Internet communications applications were never designed to comply with the legal and technical requirements applicable to fixed, switched telecommunications networks, let alone be saddled with obligations such as State tariff rules, rate regulation, and other forms of regulation typically imposed on common carriers."

Vonage wrote that "Minnesota’s regulation conflicts with this Commission's long-standing policy of deregulating information services", and that the FCC should "preempt Minnesota’s imposition of entry and rate regulation on Vonage’s service".

Vonage also wrote that "Minnesota has ordered Vonage to comply with the same rules as local exchange camers with respect to 911 services. Although Vonage does offer a 911 dialing service to its users and is committed to improving this service to enhance customer safety, the nature of Vonage’s service makes full compliance with Minnesota’s expectations impossible." Vonage also asked the FCC to "preempt these rules, both because they are inconsistent with Vonage’s offering of an information service as described above, and because they have a particular impact on customers who use Vonage service during interstate travel."

Finally, Vonage argued that "preemption is necessary because of the impossibility of separating the Internet, or any service offered over it, into intrastate and interstate components."

Vonage v. Minnesota. In addition to this regulatory proceeding, there is a court proceeding. Vonage filed a complaint in U.S. District Court in Minnesota against the MPUC and its Commissioners, in their official capacities. It seeks declaratory and injunctive relief. It argues that its VOIP service is an information service, not a telecommunications service.

On 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, 2003.

The District Court concluded "that the VoIP service provided by Vonage constitutes an information service because it offers the ``capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information via telecommunications.´´ 47 U.S.C. § 153(20). The process of transmitting customer calls over the Internet requires Vonage to ``act on´´ the format and protocol of the information. 47 C.F.R. § 64.702(a)."

The District Court continued that "For calls originating with one of Vonage's customers, calls in the VoIP format must be transformed into the format of the PSTN before a POTS user can receive the call. For calls originating from a POTS user, the process of acting on the format and protocol is reversed. The Court concludes that Vonage's activities fit within the definition of information services. Vonage's services are closely tied to the provision of telecommunications services as defined by Congress, the courts and the FCC, but this Court finds that Vonage uses telecommunications services, rather than provides them."

The District Court also held that the Communications Act preempts the state laws being applied by the MPUC. It wrote that "Because Congress has expressed an intent that services like Vonage's must remain unregulated by the Communications Act, and because the MPUC has exercised state authority to regulate Vonage’s service, the Court concludes that that state and federal laws conflict, and pre-emption is necessary."

The MPUC appealed to the U.S. Court of Appeals (8thCir). Oral argument is scheduled for November 17, 2004.

On April 21, 2004, the FCC filed an amicus curiae brief [38 pages in PDF] with the Court of Appeals in which it requested that the Court defer its resolution of this appeal. The FCC wrote that it is "is currently engaged in administrative proceedings that will address Vonage's regulatory status in particular and the regulatory status of Internet telephony services more generally. There is a significant public interest in ensuring that the FCC's regulatory authority is not impaired by premature judicial resolution of these issues", and that the Court should wait until these proceedings are completed. See, story titled "FCC Files Amicus Brief in Vonage v. Minnesota PUC" in TLJ Daily E-Mail Alert No. 887, April 29, 2004.

Carlisle spoke after the meeting about the upcoming 8th Circuit oral argument. He said that "We have been in this position before, with regard to a number of cases, including reciprocal compensation, and also Brand X. And so, we would rather not repeat that here. We want to get as much clarity out as to what the FCC thinks about the jurisdictional nature of these services as possible. So, at least the judicial process knows what we think."

FCC Commissioners' Statements. FCC Chairman Michael Powell wrote in a separate statement [PDF] that "VOIP is barely a few years old as a retail offering and providers have already cut prices several times to compete for consumers. VoIP providers have begun offering local and long-distance calling plans for as low as $14.99 and $19.99 per month. Most recently, Vonage and AT&T slashed the monthly prices of their unlimited local and long-distance calling plans by $5 per month. If we let competition and innovation rage, unencumbered by the high cost of regulation, Consumers can expect more of the same -- lower prices, more choice, and more innovative offerings."

Michael PowellPowell (at right) continued that "Today's decision lays a jurisdictional foundation for what consumers already know -- that the Internet is global in scope. The genius of the Internet is that it knows no boundaries. In cyberspace, distance is dead. Communication and information can race around the planet and back with ease. The Order recognizes that several technical factors demonstrate that VoIP services are unquestionably interstate in nature. VoIP services are nomadic and presence-oriented, making identification of the end points of any given communications session completely impractical and, frankly, unwise. In this sense, Internet applications such as VoIP are more border-busting than either long distance or mobile telephony -- each inherently, and properly classified, interstate services."

"To subject a global network to disparate local regulatory treatment by 51 different jurisdictions would be to destroy the very qualities that embody the technological marvel that is the Internet", wrote Powell. "VOIP properly stands in this category and the Commission is merely affirming the obvious in reaching today’s jurisdictional decision."

FCC Commissioner Kathleen Abernathy wrote in a separate statement [PDF] that "There is no doubt that VoIP services of the type provided by Vonage are inherently interstate in nature."

She added that "Allowing the Minnesota utility regulations -- or comparable state regulations -- to stand would authorize a single state to establish default national rules for all VoIP providers, given the impossibility of isolating any intrastate-only component. Equally troubling is the prospect of subjecting providers of these innovative new services -- which are being rolled out on a regional, national, and even global scale -- to a patchwork of inconsistent state regulations. In short, failure to preempt state utility regulations would likely sound the death knell for many IP-enabled services and would deprive consumers of the cost savings and exciting features they can deliver."

FCC Commissioner Michael Copps wrote in a concurring statement [PDF] that "Today's decision finds that VoIP services like Vonage's DigitalVoice have an undeniably interstate character. That’s fine as far as it goes—but it doesn’t go very far. Proclaiming the service “interstate” does not mean that everything magically falls into place, the curtains are raised, the technology is liberated, and all questions are answered. There are, in fact, difficult and urgent questions flowing from our jurisdictional conclusion and they are no closer to an answer after we act today than they were before we walked in here.

He complained that the FCC "moves bit-by-bit through individual company petitions, in effect checking off business plans as they walk through the door. This is not the way we should be proceeding. We need a framework for all carriers and all services".

FCC Commissioner Jonathan Adelstein wrote in a concurring statement [PDF] that he is "not comfortable with all of the analysis" in the order. He wrote that "Where this Order falls short is its failure to account in a meaningful way for essential policy issues, including universal service, public safety, law enforcement, consumer privacy, disabilities access, and intercarrier compensation, and the effect of our preemption here." He added that "I also have reservations about our preemption of a State’s efforts to ensure the public safety of its citizens, based here on the linkage of the 911 requirement with a State certification."

Chairman Powell, in his statement at the meeting, responded to "the process concern, that wouldn't we rather answer all of the questions comprehensively, do everything now. Well, what I find interesting about that is that revolutionaries are a little less patient than that, and they are a little less messy than that. I think this is this is a classic example of letting the perfect be the enemy of the good. At some point it is a formula for paralysis. Because, there will always be more questions on the horizon. There will always be new challenges presented by new innovation". He said that the FCC can't "answer every possible question before you let a service come to the benefit of consumers". These comments were not a part of his written statement.

Carlisle explanation. Jeffrey Carlisle answered questions from reporters after the meeting about what is in the FCC's forthcoming order. He said that "This order does not address or explicitly preclude any possible approach on universal service for VOIP providers" at either the state or federal level.

He also answered that the order does not preclude state or local taxation of VOIP services, but that it does preclude state regulation of the terms of services and prices of VOIP services.

"The actual preemption analysis applies to certification requirements and 911 requirements that are made a condition to certification. It is possible that you could have different conclusions regarding preemption based on different state requirements. Those question, USF questions were not before the Commission." Carlisle added that other questions are being addressed in other FCC proceedings, including the USF proceeding, the intercarrier compensation proceeding, and the IP enabled services proceeding.

"This item is very clear that the 911 requirement is being preempted because it was a condition of certification. Certification was preempted. Therefore the 911 requirement had to fall."

Carlisle also asserted that the order, which the FCC has not released, "is clear".

9th Circuit Construes Meaning of Identity Theft for Sentencing Purposes

11/9. The U.S. Court of Appeals (9thCir) issued its split opinion [20 pages in PDF] in USA v. Melendrez, a criminal sentencing case. Melendrez stole social security numbers, and used a computer to create fraudulent identification documents. The police caught him, and he plead guilty to unlawfully producing more than five identification documents in violation of 18 U.S.C. § 1028(a)(1), (b)(1)(A)(i) and (ii), and (b)(1)(B).

At issue in this appeal is whether it was appropriate for the District Court to enhance his sentence, on the grounds that he committed identity theft, pursuant to the U.S. Sentencing Guidelines Manual, at U.S.S.G. § 2B1.1(b)(9)(C).

Melendrez asserted that there was no identity theft because he did not use the victims' names on the fake identification documents. The Court of Appeals rejected this argument, two to one. This case is U.S.A. v. Melendrez, App. Ct. No. 03-30221, an appeal from the U.S. District Court for the District of Oregon, D.C. No. CR-02-60133-1-ALA, Judge Ann Aiken presiding. Judge Raymond Fisher wrote the opinion of the Court of Appeals, in which Judge Procter Hug joined. Judge Margaret McKeown wrote a dissent.

GAO Reports That Governments Make Social Security Numbers Available for Indentity Thieves

11/9. The Government Accountability Office (GAO) released a report [65 pages in PDF] titled "Social Security Numbers: Governments Could Do More to Reduce Display in Public Records and on Identity Cards".

It states that "We found that SSNs are widely exposed to view in a variety of public records, particularly those held by state and local governments, and appear in some public record nearly everywhere in the nation. Specifically, agencies in 41 states and the District of Columbia reported that SSNs are accessible in at least some of the public records they hold and a few reported this to be the case for as many as 10 or more different records."

The GAO also estimates that "more than three-quarters of U.S. counties hold at least one type of record that displays SSNs, which has implications for the 94 percent of the U.S. population that we estimate live in those counties. While we found SSNs displayed in a great variety of state and county records, they were most often displayed in court and property records. On the other hand, SSNs in records held by federal executive branch agencies are protected under the Privacy Act of 1974 and are, therefore, not generally available to the public. However, we found that SSNs are sometimes available in federal court records."

The report also found that some state and local government agencies that collect social security numbers "reported having no use for the number", but collect them anyway.

The report also addresses how documents containing SSN's are stored and accessed. "Public documents with SSNs are stored in a multiplicity of ways, and we found that public access methods are highly variable. State government offices tend to store such records electronically, while most such local government records are stored on microfiche or microfilm. However, for both levels of government, inspection of paper copies is the most commonly available method for public access. Few state agencies make records containing SSNs available on the Internet. However, we estimate that local government offices in as many as 15 to 28 percent of counties do make SSNs available through the Internet. Still, few state or local offices reported plans to put additional records on the Internet. Additionally, some state and local offices have begun restricting access to SSNs in public records overall. Moreover, at the federal level, the federal court system has recently taken action to restrict access to SSNs in their public records."

The report also discussed the display of SSNs on federal identification cards. "The display of nine-digit SSNs on such cards, which may need to be carried and must often be disclosed, puts cardholders at risk for identity theft due to the increased potential for accidental loss, theft, or visual exposure. Currently, this practice involves an estimated 42 million Medicare cards, 8 million Department of Defense identification cards, as well as some insurance cards, and 7 million Department of Veterans Affairs identification cards."

More News

11/9. The White House press office announced in a release that "President Bush will attend the 12th Asia-Pacific Economic Cooperation (APEC) Leaders' Meeting in Santiago, Chile from November 20-21."

Attorney General Ashcroft Resigns

11/9. Attorney General John Ashcroft resigned, effective upon the confirmation of a successor. President Bush has not yet named a replacement. Confirmations for Attorneys General are often contentious, and protracted.

Ashcroft wrote in a message to Department of Justice (DOJ) employees on November 9 that "On November 2nd, I submitted to the President my intention to resign from the office of Attorney General of the United States, effective upon confirmation of my successor."

He also reviewed the DOJ's accomplishments. "For three years since the worst attack in our nation's history, and in defiance of all expectations, America has not endured another major terrorist attack. Violent crime is at its lowest rate in three decades. We have engineered double-digit reductions in the rates of sexual assault, robbery and assault. Gun crime prosecutions are at a record high and violent crimes committed with guns are at a record low. Drug use among the nation's youth is declining. Corporate criminals are facing justice, and integrity has been restored to the nation's marketplace. America's values, as set forth in our Constitution, reflected in our laws, and cherished in our hearts, have been honored and defended."

John AshcroftPresident Bush praised Ashcroft (at right) in a statement. He wrote that "During his four years at the Department of Justice, John has transformed the Department to make combating terrorism the top priority, including making sure our law enforcement officials have the tools they need to disrupt and prevent attacks." Bush also stated that "I appreciate his work to fight Internet pornography."

Sen. Orrin Hatch (R-UT), the outgoing Chairman of the Senate Judiciary Committee, stated in a release that Ashcroft "has served our country faithfully during one of our most challenging chapters in history. I enjoyed working closely with him. His courage and leadership are second to none."

AG Ashcroft also wrote in a summary of DOJ accomplishments that there has been "a nearly 100% increase in electronic surveillance (FISA) orders since 2001". Ashcroft added in his statement to DOJ employees that "it would be the height of arrogance to assume we achieved this alone. The Psalms remind us: ``Unless the Lord watches over the city, the watchman stands guard in vain.´´"

Anthony Romero, Executive Director of the ACLU, issued an angry release in reaction to Ashcroft's resignation. He asserted that Ashcroft has "an open hostility to protecting civil liberties and an outright disdain for those who dare to question his policies". He added that "The Administration has long known that John Ashcroft's unpopularity would make it harder to pursue its agenda -- but it is not enough to simply change the public face of the Department of Justice. Putting a fresh face on the Administration's old policy of violating civil liberties and human rights in the name of national security is not sufficient."

More People and Appointments

11/9. Federal Communications Commission (FCC) Chairman Michael Powell stated to reporters on his way out of the FCC's meeting on November 9, 2004 that he intends to stay on at the FCC. His term as a Commissioner expires in 2007. He serves in the capacity of Chairman at the will of the President.

Donald Evans11/9. Secretary of Commerce Donald Evans (at left) resigned. President Bush wrote in a statement praising Evans that "He has been a valuable member of my economic team. Don has worked to advance economic security and prosperity for all Americans. He has worked steadfastly to make sure America continues to be the best place in the world to do business. To encourage job creation here at home, Don has worked closely with me to reduce taxes, open markets for American goods and services, and promote a level playing field abroad."

11/9. Patrick Ross was named VP for Communications and External Affairs at the Progress & Freedom Foundation (PFF). Ross previously worked for Warren Communications News, as manager of Washington Internet Daily, and as a writer for Communications Daily. Before that, he was the Washington Bureau Chief for CNET News. Before that, he worked at Warren. He also previously worked on the staff of Sen. Harry Reid (D-NV), who, following the election defeat of Sen. Tom Daschle (D-SD), will likely become the Senate Minority Leader in the 109th Congress. The PFF stated in a release that Ross "will also focus on intellectual property issues for the Foundation's Center for the Study of Digital Property." His new e-mail address is

Washington Tech Calendar
New items are highlighted in red.
Wednesday, November 10

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

The Senate is in recess until November 16, 2004.

8:30 AM - 5:30 PM. Day two of a two day event hosted by the Federal Trade Commission (FTC) and the National Institute of Standards and Technology (NIST) titled "Email Authentication Summit". The purpose of this summit is to encourage the development, testing, evaluation and implementation of domain level authentication systems. See, FTC notice and notice in the Federal Register, September 15, 2004, Vol. 69, No. 178, at Pages 55632 - 55636. Location: FTC Satellite Building, 601 New Jersey Ave., NW.

10:00 AM - 12:00 NOON. The Federal Communications Commission's (FCC) Advisory Committee for the 2007 World Radiocommunication Conference (WRC-07 Advisory Committee) will meet. See, original notice in the Federal Register, July 6, 2004, Vol. 69, No. 128, at Pages 40637 - 40638, and rescheduling notice in the Federal Register, August 10, 2004, Vol. 69, No. 153, at Pages 48493. See also, FCC notice of rescheduling to November 10. Location: FCC, 445 12th Street, SW., Room TW-C305.

12:00 NOON. The Cato Institute will host a discussion of the book titled Shakedown: How Corporations, Government, and Trial Lawyers Abuse the Judicial Process [Amazon]. The speakers will be Robert Levy (author), Walter Olson (Manhattan Institute), and Edward Crane (Cato). See, notice and registration page. Lunch will follow the program. Location: 1000 Massachusetts Ave., NW.

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

12:15 PM. The Federal Communications Bar Association (FCBA) Access to Records and Mass Media Practice Committees will host a brown bag lunch. Renee Licht (FCC's Office of Managing Director), Mark Reger (FCC Chief Financial Officer), and other FCC personnel will discuss the Debt Collection Improvement Act of 1996 and the FCC's red light rule. RSVP to Rebecca Cunningham at Location: NAB, 1771 N St. NW.

3:00 - 6:30 PM. The American Enterprise Institute (AEI) will host a program titled "Federalism under the Influence: Dope, Booze, and the Commerce Clause". There will be three panel discussions. The first, titled "Uncorking the Commerce Clause", will address Swedenburg v. Kelly and consolidated cases, which involve Commerce Clause challenges to state barriers to internet sales, and other direct sales, of alcoholic beverages. The speakers on this panel include Brannon Denning (Cumberland School of Law), Todd Zywicki (George Mason University Law School), and Hewitt Pate (Department of Justice). The Supreme Court will hear oral argument in Swedenburg v. Kelly on December 7, 2004. See, 2002 paper [47 pages in PDF] by Denning titled "Smokey and the Bandit in Cyberspace: The Dormant Commerce Clause, the Twenty-First Amendment, and the State Regulation of Internet Alcohol Sales". See, notice. Location: AEI, 12th floor, 1150 17th St., NW.

Thursday, November 11

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

12:30 PM. Dan Glickman, Ch/CEO of the Motion Picture Association of America (MPAA), will give a luncheon address titled "The Motion Picture Industry in the 21st Century -- A New Golden Age?". He will discuss the digital delivery of content, and internet piracy of movies. For reservations, call 202 662-7501. Location: National Press Club, 529 14th St. NW, 13th Floor.

Friday, November 12

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in AT&T Corp v. FCC, No. 03-1431. This is a petition for review of a final order of the FCC regarding AT&T's tarriffs and resellers 800 service plans. See, FCC brief [37 pages in PDF]. Judges Ginsburg, Tatel and Roberts will preside. Location: Prettyman Courthouse, 333 Constitution Ave., NW.

9:30 - 11:30 PM. The American Enterprise Institute (AEI) will host a program titled "Success Taxes, Entrepreneurial Entry, and Innovation". The speakers will be William Gentry (Williams College), William Randolph (Department of the Treasury), Kevin Hassett (AEI), and Eric Engen (AEI). Gentry and Glenn Hubbard (Columbia University) are the authors of a paper [30 pages in PDF] with the same title as the program. They find that "while the level of the marginal tax rate has a negative effect in entrepreneurial entry, the progressivity of the tax also discourages entrepreneurship". See, notice. Location: AEI, 12th floor, 1150 17th St., NW.

10:30 AM. Public Knowledge (PK) will host an event that its describes as a "a press conference ... to discuss copyright legislation in the upcoming lame duck session". The participants will be Gigi Sohn (PK), Gary Shapiro (Consumer Electronics Association), Ed Black (Computer and Communications Industry Association), James Burger (TiVo), and Sarah Deutsch (Verizon). Location: PK, Suite 650, 1875 Connecticut Ave., NW, at Connecticut and T Streets.

Deadline to submit reply 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.

Deadline for licensees of all site specific licenses operating under part 22, Paging and Radiotelephone Service with "CD" radio service code and all site specific licenses operating in the 929-930 MHz band on exclusive
private carrier paging channels with "GS" radio service to respond to the Federal Communications Commission's (FCC) Wireless Telecommunications Bureau's (WTB) audit letter. See, Public Notice DA 04-3050, and notice in the Federal Register, October 12, 2004, Vol. 69, No. 196, at Page 60626.

Deadline to submit comments to the Department of Commerce's Bureau of Industry and Security (BIS/BXA) in response to its notice of proposed rulemaking (NPRM) regarding amendments to the Export Administration Regulations (EAR). The BIS proposes to amend its EAR to revise the definition of knowledge to incorporate a reasonable person standard, and to replace the phrase "high probability" with "more likely than not". The BIS also proposes to revise the red flags guidance, and provide a safe harbor from liability arising from knowledge under that definition. See, notice in the Federal Register, October 13, 2004, Vol. 69, No. 197, at Pages 60829 - 60836.

Monday, November 15

The Supreme Court will begin a recess. It will return on Monday, November 29, 2004. See, Order List [14 pages in PDF] at page 14.

6:00 - 9:15 PM. The DC Bar Association will host a continuing legal education (CLE) program titled "How to Litigate an Intellectual Property Case Series, Part 2: How to Litigate a Trademark Case". The speakers will be Shauna Wertheim (Roberts Abokhair & Mardula) and Steven Hollman (Hogan & Hartson). See, notice. Prices vary from $70 to $115. For more information, call 202 626-3488. Location: D.C. Bar Conference Center, B-1 Level, 1250 H Street, NW.

12:15 - 1:30 PM. The Federal Communications Bar Association's (FCBA) Professional Responsibility Committee will host a brown bag lunch. This is an organizational meeting. Location: Paul Hastings, 1299 Pennsylvania Ave., NW, 10th Floor.

Extended deadline to reply 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.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its notice of proposed rulemaking (NPRM) regarding "Internet Protocol (IP) Relay and Video Relay Service (VRS), including the appropriate cost recovery methodology for VRS, possible mechanisms to determine which IP Relay and VRS calls are intrastate and which are interstate for purposes of reimbursement, whether IP Rely and VRS should become mandatory TRS services, whether IP Relay and VRS should be required to be offered 7 days a week, 24 hours a day, and whether, when, and how we should apply the speed of answer rule to the provision of VRS." See, notice in the Federal Register, September 1, 2004, Vol. 69, No. 169, at Pages 53382 - 53385. The FCC adopted this NPRM on June 10, 2004, and released it on June 30, 2004. It is FCC 04-134 in CG Docket No. 03-123. Comments are due by October 18, 2004.

Deadline to submit comments for, or requests to participate in, the Federal Trade Commission's (FTC) workshop titled "Peer to Peer File-Sharing Technology: Consumer Protection and Competition Issues". See, FTC release and notice [13 pages in PDF] to be published in the Federal Register.

Tuesday, November 16

The House will meet at 2:00 PM. See, Republican Whip Notice.

The Senate will meet at 12:00 NOON.

9:30 AM. The Senate Judiciary Committee will hold a hearing titled "Judicial Nominations". Location: Room 226, Dirksen Building.

9:30 AM - 1:00 PM. The DC Bar Association will host a continuing legal education (CLE) program titled "Essential Checklist for Electronic Discovery". The speakers will be Kenneth Withers (Federal Judicial Center), Robert Eisenberg (CoreFacts), Magistrate John Facciola (U.S. District Court for the District of Columbia), Virginia Llewellyn (LexisNexis Applied Discovery), Jonathan Redgrave (Jones Day). See, notice. Prices vary from $70 to $115. For more information, call 202 626-3488. Location: D.C. Bar Conference Center, B-1 Level, 1250 H St., NW.

10:00 - 11:30 AM. The Federal Communications Commission's (FCC) Media Security and Reliability Council will meet. The event will be webcast by the FCC. The public may submit written comments. See, notice in the Federal Register, July 15, 2004, Vol. 69, No. 135, at Page 42439. Location: FCC, 445 12th St. SW, Room TW-C305 (Commission Meeting Room).

11:00 AM. The Federal Communications Commission's (FCC) International Bureau will hold an event titled "Media briefing on the 10th Anniversary of the FCC’s International Bureau". Bureau Chief Don Abelson will speak. RSVP to Jacki Ponti at or Meribeth McCarrick at Location: FCC, 445 12th Street, SW, Room TW A-402/A-442.

12:00 NOON. The Federal Communications Bar Association's (FCBA) Executive Committee will meet.  Location: Wiley Rein & Fielding, 1776 K St., NW.

Wednesday, November 17

12:15 PM. The Federal Communications Bar Association's (FCBA) Cable Practice Committee will host a brown bag lunch. Jon Cody, Legal Advisor to FCC Chairman Michael Powell, will speak. For more information, contact Location: Mintz Levin, 701 Pennsylvania Ave., NW.

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