4/20. The House Homeland Security Committee's (HHSC) Subcommittee on Economic Security, Infrastructure Protection, and Cybersecurity approved HR 285, the "Department of Homeland Security Cybersecurity Enhancement Act of 2005".

This bill would create the position of Assistant Secretary for Cybersecurity in the Department of Homeland Security's (DHS) Directorate for Information Analysis and Infrastructure Protection. The bill would also create a National Cybersecurity Office, to be headed by this Assistant Secretary.

The bill would increase the rank of the top cybersecurity officer at the DHS, and define and expand the responsibilities of this officer. However, there is nothing in the bill that would increase governmental authority over the private sector.

The bill defines cybersecurity as "the prevention of damage to, the protection of, and the restoration of computers, electronic communications systems, electronic communication services, wire communication, and electronic communication, including information contained therein, to ensure its availability, integrity, authentication, confidentiality, and nonrepudiation".

Rep. Lofgren (at right) stated that "The Assistant Secretary for Cybersecurity position, at this higher level, will be better able to coordinate with other assistant secretaries within the Directorate, as well as officials throughout the Department, other federal agencies, and the private sector ... The Department needs to be advancing on cybersecurity and I am pleased that this bill will help ensure that cybersecurity is a priority in our nation's homeland security."

HR 285 is the reintroduction in the 109th Congress of HR 5068 (108th), the "Department of Homeland Security Cybersecurity Enhancement Act of 2004". Rep. Mac Thornberry (R-TX) and Rep. Zoe Lofgren (D-CA) introduced HR 5068 (108th) on September 13, 2004. They introduced HR 285 on February 18, 2005. See also, story titled "Representatives Introduce Bill to Increase Authority of DHS's Top Cyber Security Officer" in TLJ Daily E-Mail Alert No. 977, September 15, 2004.

An intelligence bill approved by the House late last year included a provision to create a new Assistant Secretary position. However, this provision was not in the final version of the bill that became law.

4/20. The House Commerce Committee's Subcommittee on Telecommunications and the Internet held a hearing titled "How Internet Protocol-Enabled Services Are Changing the Face of Communications: A Look at Video and Data Services".

Representatives of regional Bells discussed their plans to provide video programming over broadband, internet protocol (IP), fiber optic networks. A representative of broadcasters asked that legacy business models and providers be protected, and that legacy regulatory regimes be preserved and extended to their soon to be competitors. Representatives of cable companies asked that the Bell's video over IP be regulated the same as the cable company's video programming.

Lea Ann Champion (SBC) wrote in her prepared testimony [5 pages in PDF] that "Through Project Lightspeed, we plan to invest $4 billion over the next three years in our network, operations, customer care and IT infrastructure. Working with companies such as Alcatel and Scientific-Atlanta, we will deploy a two-way, interactive, switched IP video network and extend approximately 40,000 miles of new fiber optics."

"Our plan is to deliver a single IP network connection providing high-quality TV viewing, super high-speed Internet access and integrated digital voice services", said Champion. "SBC will be a new entrant in the video space, providing a competitive alternative to incumbent cable operators".

Robert Ingalls (Verizon) wrote in his prepared testimony [5 pages in PDF] about Verizon forthcoming fiber optic network naned FiOS. He wrote that "FiOS is the first broadband network to use a fiber-to-the-premises architecture. FiOS is capable of delivering 100 megabits downstream and up to 15 megabits upstream television and video on demand."

He also discussed regulation. "First, current law does not serve innovation well. The law was written for a world where telecom and cable were different technologies and distinct services. In the converged world we're in today, those distinctions make less and less sense."

"We need a national broadband policy that does not shoe-horn new technologies into old categories", said Ingalls.

He also stated that "as a local telephone company, Verizon has a franchise to deploy and operate networks. Yet we're being asked to obtain a second franchise to use those same networks to offer consumers a choice in video. We believe this redundant franchise process is unnecessary and will delay effective video competition for years unless a federal solution is enacted soon." He advocated "a streamlined, national franchise process".

Greg Schmidt (LIN Television Corporation, testifying on behalf of the National Association of Broadcasters) wrote in his prepared testimony [13 pages in PDF] that "existing policies designed to promote competition, diversity and intellectual property rights must extend to all multi-channel platforms."

He also stated that "To preserve this public access to free-over-the air television, policy-makers must continue to support the principles of localism and of local station program exclusivity. These are the principles that underlie the policies of syndicated exclusivity, network nonduplication, must-carry and retransmission consent."

David Cohen (Comcast) wrote in his prepared testimony [3 pages in PDF] that "we believe Congress should consider how all multichannel video services should be regulated in the future. Congress should consider the current state of competition and the additional competition that IP video could bring -- and, if the rules are to be changed, they should be changed for all providers."

He added that "Now that the phone companies plan to offer video, we say ``... you should be treated like cable companies, because that is what you are.´´ And whatever rules apply to one should apply to all."

James Gleason (New Wave Communications, testifying on behalf of the American Cable Association) wrote in his prepared testimony [PDF] his group wants the Congress to "treat video services alike as much as possible, regardless of the means of delivery".

His group, which represents small cable operators, also wants the Congress to "update and change the current retransmission consent rules to help remedy the imbalance of power caused by media consolidation", "make access to quality local-into-local television signals available", and "correct rules that allow for abusive behavior because of media consolidation and control of content".

Paul Mitchell (Microsoft TV Division) wrote in his prepared testimony [10 pages in PDF] that "Internet services, that is, those services and products that ride atop or connect to the underlying broadband transport services, should remain largely unregulated and not be subject to the Communications Act."

However, he endorsed former Federal Communications Commission (FCC) Chairman Michael Powell's concept of four network freedoms.

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". 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".

On October 19, 2004 Powell gave a speech [5 pages in PDF] at the Voice on the Net Conference in Boston, Massachusetts in which he enumerated four internet freedoms. See, story titled "Powell Discusses VOIP Regulation" in TLJ Daily E-Mail Alert No. 1,000, October 20, 2004.

Powell's four freedoms, which Mitchell quoted, are:

  "Freedom to Access Content. First, consumers should have access to their choice of legal content.
  Freedom to Use Applications. Second, consumers should be able to run applications of their choice.
  Freedom to Attach Personal Devices. Third, consumers should be permitted to attach any devices they choose to the connection in their homes.
  Freedom to Obtain Service Plan Information. Fourth, consumers should receive meaningful information regarding their service plans."

Neither Powell, nor Mitchell, advocated enacting these four items into law.

Mitchell continued that "the system that finances the universal service fund is under strain today, because it is funded by interstate telecom revenues, and demand for subsidy payments is growing at the same time that those revenues are shrinking. Thus, we encourage the Subcommittee to consider alternative means, such as assessing a universal service fee on telephone numbers if you want to fund the telephone service or assessing it based on connections if you want to fund the underlying infrastructure. In addition, the existing system for compensating telecommunications carriers that exchange traffic is deeply flawed and has been the subject of reform efforts for years. Those efforts should come to conclusion and the system should be fixed before it is applied to IP services, or else innovation will suffer."

Finally, Mitchell argued that to the extent that there is regulation of IP services, it should be a light regulatory touch, and "Congress should protect IP services from conflicting and overlapping State regulation."

See also, prepared testimony [PDF] of Jack Perry (Decisionmaker Corp.).

4/20. The House International Relations Committee's Subcommittee on Asia and the Pacific held a hearing titled "Focus on a Changing Japan". See, opening statement [2 pages in PDF] of Rep. James Leach (R-IA), the Chairman of the Subcommittee. See also, prepared testimony [7 pages in PDF] of Thomas Berger (Boston University), prepared testimony [5 pages in PDF] of Leonard Schoppa, and prepared testimony [16 pages in PDF] of Richard Katz (Editor of the Oriental Economist).

4/20. The House Science Committee's Subcommittee on Space and Aeronautics held a hearing titled "Future Market for Commercial Space". See, prepared testimony [PDF] of Burt Rutan (Scaled Composites), prepared testimony [PDF] of Will Whitehorn (Virgin Galactic), prepared testimony [PDF] of Elon Musk (Space Exploration Technologies), prepared testimony [PDF] of John Vinter (International Space Brokers Group), prepared testimony [PDF] of Molly Macauley (Resources for the Future), and prepared testimony [PDF] of Wolfgang Demisch (Demisch Associates). See also, opening statement [PDF] of Rep. Ken Calvert (R-CA), and hearing charter [PDF].

4/20. The U.S. Court of Appeals (FedCir) issued an opinion [8 pages in PDF] in Space Systems/Loral  v. Lockheed Martin, a patent case involving the written description requirement.

Loral is the owner of U.S. Patent No. 4,537,375 titled "Method and apparatus for thruster transient control". It discloses a method of maintaining the orientation and attitude of a satellite in space.

Loral filed a complaint in U.S. District Court (NDCal) against Lockheed alleging patent infringement. The District Court held that claim 1 is invalid for violating the written description requirement.

35 U.S.C. § 112 begins with the provision that "The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention."

The Court of Appeals reversed. It wrote that "The written description is the technologic disclosure of the invention. It serves the fundamental patent purpose of making known what has been invented, including any variations and alternatives contemplated by the inventor. The descriptive text shows that the inventor possessed the technologic information for which exclusivity is claimed, and discloses the invention to the public."

The Court of Appeals reviewed the claim, and the testimony regarding this claim, and concluded that the content of the claim contains a sufficient written description.

This case is Space Systems/Loral, Inc. v. Lockheed Martin Corporation, U.S. Court of Appeals for the Federal Circuit, No. 04-1501, an appeal from the U.S. District Court for the Northern District of California, D.C. No. C-96-3418 SI.

4/20. President Bush gave a speech in Washington DC to the U.S. Hispanic Chamber of Commerce Conference. "We have the most innovative economy in the world", said Bush. And, America has "innovative spirit".  He also said that "History has shown us the American innovative spirit is never in short supply. And I know we can harness this spirit in this new century." He was speaking in the context of innovation in the energy sector. These brief references are consistent with other comments that Bush has made regarding innovation, creativity, and invention. That is, he tends to associate these with human ideals and virtues, rather than with government created incentives of limited property rights, or with government funding and planning.

4/20. President Bush signed S 256, the "Bankruptcy Abuse Prevention and Consumer Protection Act of 2005". See, White House release and statement by President Bush.

4/19. The Securities and Exchange Commission (SEC) announced that it has settled its claims against KPMG arising out of its audits of of Xerox from 1997 through 2000. The SEC stated that "As part of the settlement, KPMG consented to the entry of a final judgment in the SEC's civil litigation against it pending in the U.S. District Court for the Southern District of New York. The final judgment, which is subject to approval by the Honorable Denise L. Cote, orders KPMG to pay disgorgement of $9,800,000 (representing its audit fees for the 1997-2000 Xerox audits), prejudgment interest thereon in the amount of $2,675,000, and a $10,000,000 civil penalty, for a total payment of $22.475 million." (Parentheses in original.) See, SEC release.

4/19. The Internal Revenue Service (IRS) announced that it is seeking applications to fill seven vacancies on its Electronic Tax Administration Advisory Committee. The deadline to submit applications is April 29, 2005. See, IRS release. See also, notice in the Federal Register, February 28, 2005, Vol. 70, No. 38, at Page 9701-9702.

The House will meet at 10:00 AM for legislative business. It will consider several non-technology related items under suspension of the rules. See, Republican Whip Notice.

The Senate will meet at 9:30 AM for morning business. At 10:30 AM it will consider the nomination of John Negroponte to be Director of National Intelligence. It will then resume consideration of HR 1268, the Iraq/Afghanistan Supplemental Appropriations bill.

9:30 AM. The Senate Judiciary Committee (SJC) will hold an executive business meeting. The agenda includes consideration of several non-technology related bills, and consideration of several judicial nominees, including Terrence Boyle (to be a Judge of the U.S. Court of Appeals for the 4th Circuit), Priscilla Owen (U.S. Court of Appeals for the 5th Circuit), and Janice Brown (U.S. Court of Appeals for the DC Circuit). The SJC rarely follows its published agenda. See, notice. Press contact: Blain Rethmeier (Specter) at 202 224-5225, David Carle (Leahy) at 202 224-4242 or Tracy Schmaler (Leahy) at 202 224-2154. Location: Room 226, Dirksen Building.

9:30 AM - 3:30 PM. The Federal Communications Commission (FCC) will hold an orientation session for the new Integrated Spectrum Auction System (ISAS). See, FCC notice [PDF]. Preregistration is requested; call 888 225-5322. Location: FCC, 445 12th Street, SW.

10:00 AM. The House Government Reform Committee will hold a hearing titled "OMB Management Watch List: $65 Billion Reasons to Ensure the Federal Government is Effectively Managing Information Technology Investments". The witnesses will be Karen Evans (Administrator for Electronic Government and Information Technology, Office of Management and Budget), David Powner (Director of Information Technology Management Issues, Government Accountability Office), Dan Matthews (CIO of the, Department of Transportation), Robert McFarland (Department of Veterans Affairs), Rosita Parkes (CIO of the Department of Energy), and Lisa Schlosser (CIO of the Department of Housing and Urban Development). Press contact: Robert White or Drew Crockett at 202 225-5074. Location: Room 2154, Rayburn Building.

10:00 AM. The Senate Finance Committee will hold a hearing on the nomination of Rep. Robert Portman (R-OH) to be the U.S. Trade Representative (USTR). Location: Room 628, Dirksen Building.

10:00 AM. The House Judiciary Committee's Subcommittee on Crime, Terrorism, and Homeland Security will hold hearing titled "Oversight Hearing on the Implementation of the USA PATRIOT Act: Sections of the Act that Address -- Crime, Terrorism, and the Age of Technology". This hearing will focus on § 209 (Seizure of voice-mail messages pursuant to warrants), § 217 (Interception of computer trespasser communications), and § 220 (Nationwide service of search warrants for electronic evidence) of the PATRIOT Act. The witnesses will be Laura Parsky (one of the Deputy Assistant Attorneys General in the DOJ's Criminal Division), Steven Martinez (Deputy Assistant Director of the FBI's Cyber Division), Jim Dempsey (Executive Director of the Center for Democracy and Technology), and Peter Swire (Ohio State University law school). Press contact: Jeff Lungren or Terry Shawn at 202 225-2492. Location: Room 2141, Rayburn Building.

10:00 AM. The House Ways and Means Committee will hold a hearing titled "Hearing on Implementation of the Dominican Republic-Central America Free Trade Agreement (DR-CAFTA)". See, notice. Location: Room 1100, Longworth Building.

11:30 AM. Four groups that oppose the SBC/AT&T and Verizon/MCI mergers will hold a news conference to discuss their opposition. The speakers will be Mark Cooper (CFA), Susanna Montezemolo (Consumers Union), John Perkins (National Association of State Utility Consumer Advocates), and a representative of USPIRG. To participate by teleconference call 1-888-577-8992 and provide code number 9087641. Press contact: Susanna Montezemolo at 202 462-6262. Location: 1666 Connecticut Ave., NW, Suite 310.

12:00 NOON - 1:30 PM. The DC Bar Association will host a panel discussion titled "Wireless Mobile Content: A Snapshot of Content Issues in a Wireless World". The scheduled speakers are Mark Desautels (CTIA), Adam Zawel (Yankee Group), Fabrice Grinda (Zingy Inc.), Scott Delacourt (Deputy Bureau Chief, Wireless Telecommunications Bureau, Federal Communications Commission). See, notice. Prices vary from $15 to $25. For more information, call 202-626-3463. Location: D.C. Bar Conference Center, B-1 Level, 1250 H St., NW.

RESCHEDULED FROM APRIL 7. 2:30 PM. The Senate Judiciary Committee's Subcommittee on Intellectual Property will hold a hearing titled "The Patent System Today and Tomorrow". Sen. Orrin Hatch (R-UT) will preside. See, notice. Press contact: Blain Rethmeier (Specter) at 202 224-5225, David Carle (Leahy) at 202 224-4242 or Tracy Schmaler (Leahy) at 202 224-2154. Location: Room 226, Dirksen Building.

Day three of a three day conference hosted by the National Institute of Standards and Technology (NIST), National Institute of Health (NIH), and Internet2 titled "4th Annual PKI R&D Workshop: Multiple Paths to Trust". See, NIST notice, registration page, and conference website. Location: NIST, Gaithersburg, MD.

12:00 NOON. Maureen O'Rourke (Boston University School of Law) will give a lecture titled "The Economics of Preemption". This is a part of the Georgetown Law Colloquium on Intellectual Property & Technology Law. For more information, contact Julie Cohen at 202 662-9871 or jec at law dot georgetown dot edu. Location: Faculty Lounge, Fifth Floor, Georgetown University Law Center, 600 New Jersey Ave., NW.

Deadline to submit reply comments to the Federal Communications Commission (FCC) to assist it in preparing its annual report to the Congress regarding progress made to achieve the objectives and carry out the purposes and provisions of Open-Market Reorganization for the Betterment of International Telecommunications Act (ORBIT Act). See, FCC notice [PDF]. This proceeding is IB Docket No. 04-158.

Passover.

1:30 PM. The Senate Judiciary Committee's (SJC) Intellectual Property Committee will hold a second hearing on patents. Press contact: Blain Rethmeier (Specter) at 202 224-5225, David Carle (Leahy) at 202 224-4242 or Tracy Schmaler (Leahy) at 202 224-2154. Location: Room 226, Dirksen Building.

The voluntary negotiation period for the purpose of determining the royalty fees for the retransmission of digital over the air television broadcast signals by satellite carriers under the statutory license ends. See, Copyright Office's (CO) notice in the Federal Register, March 25, 2005, Vol. 70, No. 57, at Pages 15368 - 15369.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its notice of proposed rulemaking (NPRM) regarding implementation of Section 207 of the Satellite Home Viewer Extension and Reauthorization Act of 2004, extends Section 325(b)(3)(C) of the Communications Act until 2010 and amends that section to impose reciprocal good faith retransmission consent bargaining obligations on multichannel video programming distributors. This proceeding is MB Docket No. 05-89. See, FCC Public Notice DA 05-772, and notice in the Federal Register, March 24, 2005, Vol. 70, No. 56, at Pages 15048 - 15051. See also, story titled "FCC Adopts and Releases NPRM Implementing § 207 of SHVERA" in TLJ Daily E-Mail Alert No. 1,090, March 8, 2005.

TIME? The House Appropriation's Committee's Subcommittee on Science, State, Justice, and Commerce, and Related Agencies will hold a hearing on the Federal Communications Commission. See, notice. This hearing was previously scheduled for April 14. Location: Room H-309, Capitol Building. (This is a small hearing room with very few public seats.)

12:00 NOON -1:30 PM. The Electronics Industry Alliance (EIA) will host a luncheon. The speaker will be Chang-Gyu Hwang, P/CEO of Samsung Electronics Semiconductor Business. See, notice. For more information, contact Gail Tannenbaum at gtannenbaum at eia dot org. Location: Room 325, Russell Building, Capitol Hill.

12:00 NOON - 1:30 PM. The DC Bar Association will host a program titled "Patent Law Update: What The Federal Circuit Would Like To See In Litigated Patents". The scheduled speaker is Paul Hickman (Perkins Coie). See, notice. Prices vary from $10 to $30. 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) Young Lawyers Committee will host a brown bag lunch. The topic will be "The Urge to Merge: A Procedural Primer on Supporting, Opposing, or Monitoring Telecommunications Mergers Considered Before the FCC, Congress, and Other Government Agencies". For more information, contact Natalie Roisman at  natalie.roisman@fcc.gov or 202 418-1655 or Phil Marchesiello at pmarchesiello at akingump dot com or 202 887-4348. No RSVP. Location: Akin Gump, 1333 New Hampshire Ave., NW, 10th Floor.

The Federal Communications Commission (FCC) will begin the auction of 4,226 Multiple Address Systems (MAS) licenses in the Fixed Microwave Services from the 928/959 and 932/941 MHz bands. This is Auction No. 59. See, Public Notice (DA 04-3198) dated November 15, 2004. See also, Public Notice (DA 04-3985) dated December 21, 2004 regarding notice and filing requirements, minimum opening bids, upfront payments and other auction procedures.

9:30 AM. The Senate Judiciary Committee (SJC) will hold a hearing on the nomination of Paul Clement to be Solicitor General. Press contact: Blain Rethmeier (Specter) at 202 224-5225, David Carle (Leahy) at 202 224-4242 or Tracy Schmaler (Leahy) at 202 224-2154. Location: Room 226, Dirksen Building.

12:00 NOON - 1:30 PM. The DC Bar Association will host a program titled "Who, What, Where, and When: An E-Commerce Taxation Update". The scheduled speaker is Stephen Kranz (Council On State Taxation). See, notice. Prices vary from $15 to $27. 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) Online Communications Practice Committee will host a brown bag lunch titled "Cable Broadband: Brand X Round Two". The speakers will be John Butler (Sher & Blackwell, counsel for Earthlink) and a representative of the Federal Communications Commission's (FCC) Office of General Counsel. RSVP to Wendy Parish at wendy@fcba.org. Location: Sidley Austin, 1501 K Street, NW, 6th Floor.

1:30 PM. The House Commerce Committee's Subcommittee on Telecommunications and the Internet will hold a hearing titled "How Internet Protocol-Enabled Services Are Changing the Face of Communications: A View from Government Officials". See, notice. The hearing will be webcast by the Committee. Press contact: Kevin Schweers (Barton) at 202 225-5735 or Sean Bonyun (Upton) at 202 225-3761. Location: Room 2322, Rayburn Building.

Deadline to submit nominations to the Department of Commerce's (DOC) Technology Administration (TA) for the 2006 National Medal of Technology awards. See, TA notice. For more information, contact Mildred Porter at 202 482-5572 or nmt@technology.gov.

TIME? The House Judiciary Committee's Subcommittee on Courts, the Internet, and Intellectual Property will hold its second hearing on the Committee Print of HR __ [52 pages in PDF], the "Patent Act of 2005". Press contact: Jeff Lungren or Terry Shawn at 202 225-2492. Location: Room 2141, Rayburn Building.

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

11:00 AM. The House Commerce Committee's Subcommittee on Commerce, Trade, and Consumer Protection will hold a hearing titled "Dominican Republic-Central America Free Trade Agreement". See, notice. The hearing will be webcast by the Committee. Location: Room 2322, Rayburn Building.

12:00 NOON - 1:30 PM. The DC Bar Association will host a panel discussion titled "Open Source & Public Domain Software: The Future of Health Care InfoTech Is Now!". The scheduled speakers are Cynthia Wark (USPHS), Rita Shapiro (USPHS), Suniti Ponkshe (Ponkshe Consulting Group), and Alan Goldberg (Goulston & Storrs). See, notice. Prices vary from $25 to $35. For more information, call 202 626-3463. Location: D.C. Bar Conference Center, B-1 Level, 1250 H St., NW.

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