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June 17, 2005, 9:00 AM ET, Alert No. 1,156.
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Sen. McCain Introduces DTV Transition Bill

6/14. Sen. John McCain (R-AZ) and Sen. Joe Lieberman (D-CT) introduced S 1237, the "Spectrum Availability for Emergency-Response and Law-Enforcement to Improve Vital Emergency Services Act". The bill would establish a hard date of December 31, 2008, for the transition in the U.S. from analog to digital television.

This awkward title produces the acronym of SAERLEIVES, which is close to SAVE LIVES. Sen. McCain and Sen. Lieberman also title this bill the "SAVE LIVES Act".

The title of "SAVE LIVES" is descriptive of the content to the extent that 24 MHz of the spectrum currently being used by broadcasters for over the air analog television would be made available for law enforcement purposes. Other uses of the spectrum would include cell phone service and broadband internet access.

The High Tech DTV Coalition, a coalition of interest groups and companies that want more spectrum for new wireless broadband services, praised the bill.

Consumer Electronics Association (CEA) P/CEO Gary Shapiro stated in a release that "Senators McCain and Lieberman have taken a critical and necessary step to expedite our nation's transition to digital television (DTV) in an effective and pro-consumer manner. A hard cut-off date for analog broadcasts, as proposed in the bill, will provide certainty for consumers, manufacturers, broadcasters and all others with a stake in the DTV transition. More, a hard cut-off date will foster innovation and strengthen America's security, while completing the DTV transition in a timely manner.

Similarly, Public Knowledge President Gigi Sohn wrote a letter to Senators and Representatives in which she supported the concept of a hard deadline. She wrote that "reclaiming that spectrum has undeniable and very palpable public interest benefits". She also asserted that "the broadcast industry has done little, if anything, to promote the transition", and that if broadcasters do not commit to a consumer education program, "Congress should consider mandating that broadcasters provide it".

In contrast, National Association of Broadcasters (NAB) P/CEO Eddie Fritz stated in a release that "local television stations provide a lifeline service during terrorist attacks, hurricanes, tornadoes and other natural disasters. We are committed to completing the digital transition in a timely fashion, including return of analog spectrum, and will work with Congress to ensure that millions of consumers are not left stranded by a premature end to analog broadcasting."

Section 4 of this bill would authorize the appropriation of $468 Million, "from the proceeds of the auction of licenses for recovered analog spectrum", to subsidize digital to analog converter devices for certain consumers owning analog TVs.

Sen. John McCainSen. McCain (at right) stated in the Senate that "The bill would ensure that no television viewer's set would go ``dark´´ by providing digital-to-analog converter boxes to over-the-air viewers that have a household income that does not exceed 200 percent of the poverty line and by allowing cable companies to down convert digital signal signals if necessary."

Section 5 of the bill would establish a program at the Department of Homeland Security (DHS) to provide grants to public safety organizations for the purchase of new communications equipment. The bill also authorizes unspecified appropriations, from the proceeds of auctions, to fund this grant program.

Section 6 of the bill would impose certain consumer education requirements upon equipment manufacturers and retailers of consumer equipment.

Sen. McCain stated that "The bill would mandate that warning labels be displayed on analog television sets sold prior to the transition, require warning language to be displayed at television retailers, command the distribution at retailers of brochures describing the television set options available, and call on broadcasters to air informational programs to better prepare consumers for the digital transition."

Sen. McCain concluded his floor statement with a comment about broadcasters. He said that "Several lawmakers attempted to act last year during the debate on the intelligence reform bill, but our efforts were thwarted by the powerful National Association of Broadcasters. This year, I hope we can all work together and to pass a bill that ensures the country is not only better prepared in case of another attack but also protects the vital communications outlet of broadcast television."

See also, McCain release and floor statement (also published in the Congressional Record, June 14, 2005, at Page S6486).

NAB and CEA Address Digital to Analog Converter Boxes

6/15. The Association for Maximum Service Television Stations (MSTV) and the National Association of Broadcasters (NAB) announced in a release that they "intend to pursue development of a prototype high quality, low cost digital to analog converter box for terrestrial digital television reception."

NAB P/CEO Eddie Fritts stated in this release that "A workable, low cost converter box is vital to the success of the digital transition. This project demonstrates our commitment to move the process forward. I trust the consumer electronics industry will respond favorably and join us in developing this important technology."

Consumer Electronics Association (CEA) P/CEO Gary Shapiro responded in a release that this is a "publicity stunt" by the NAB and MSTV. He said that "This publicity stunt is novel considering that no one before has suggested any problem with creating a relatively simple digital to analog converter box. The issue is market demand. No one sells the product in the U.S. today as most local broadcasters do not have full-power HDTV broadcasts and only 11 percent of TV sets are even used to receive over-the-air (OTA) broadcasting."

Shapiro added that "We suggest broadcasters focus their resources on promoting OTA broadcasting, rather than trying to confuse the situation and delay a cut-off date".

FRB Governor Addresses Effects of Info Tech on Financial Markets

6/15. Federal Reserve Board (FRB) Governor Donald Kohn gave a speech in New York City, New York, titled "Managing Risk in a Changing Economic and Financial Landscape". One of his topics that he addressed was how information and communications technologies have changed financial markets.

Donald KohnHe said that "Change in financial markets over the past decade or so has been rapid and profound. New computing and telecommunication technologies, along with the removal of legal and regulatory barriers to entry, have resulted in greater competition among a wider variety of institutions, in broader geographic areas, and across an expanding array of instruments. The result has been an increase in the efficiency with which financial markets channel funds from savers to spenders and an improvement in the ability of both savers and spenders to adjust their risk profiles."

He added that "Among the key technological innovations are those that have enabled the development of databases critical to pricing and managing the risks of financial instruments. The ability to value risky assets laid the foundation for understanding the risks embedded in those assets and managing those risks on a portfolio basis."

He also commented on technological innovation. "Stable economic environments encourage innovation; indeed fostering a stable economic environment is an important way in which central banks can contribute to public welfare."

Microsoft Brings Suits Against Counterfeiters Under New Anti Counterfeiting Amendments Act

6/15. Microsoft announced that it filed four complaints in U.S. District Courts in the Eastern District of Virginia and the Central District of California against companies that its alleges distributed its software and software components in violation of various laws. These complaints illustrate use of the new civil remedies created by the Anti Counterfeiting Amendments Act (ACAA).

In addition to routine allegations of distribution of counterfeit software, the complaints also allege violation of the ACAA. This bill was enacted in December of 2004 as a part of HR 3632 (108th Congress), the "Intellectual Property Protection and Courts Amendments Act of 2004". This bill is now Public Law No. 108-482.

The anti-counterfeiting provisions revised and expanded 18 U.S.C. § 2318, which pertains to trafficking in counterfeit labels, documentation and packaging of computer programs, phonorecords, and movies.

Microsoft stated in a release that the ACAA "strengthened the software industry's ability to protect itself from those abusing certificate of authenticity (COA) labels -- the ``authentication´´ labels that are paired with legitimate software. Previously, legal action was taken against those selling or possessing counterfeit COA labels. The law created specific criminal and civil penalties for the distribution of genuine COA labels with the software the COA labels were intended to authenticate."

The ACAA provides that "Whoever ... knowingly traffics in--
  (1) a counterfeit label or illicit label affixed to, enclosing, or accompanying, or designed to be affixed to, enclose, or accompany--
    (A) a phonorecord;
    (B) a copy of a computer program;
    (C) a copy of a motion picture or other audiovisual work;
    (D) a copy of a literary work;
    (E) a copy of a pictorial, graphic, or sculptural work;
    (F) a work of visual art; or
    (G) documentation or packaging; or
  (2) counterfeit documentation or packaging,
shall be fined under this title or imprisoned for not more than 5 years, or both."

The bill addresses not only "counterfeit label"s, but also "illicit label"s. It defines this latter category as genuine labels that are used without the authorization of the copyright holder.

More specifically, the bill provides that an "illicit label" is "a genuine certificate, licensing document, registration card, or similar labeling component--
  (A) that is used by the copyright owner to verify that a phonorecord, a copy of a computer program, a copy of a motion picture or other audiovisual work, a copy of a literary work, a copy of a pictorial, graphic, or sculptural work, a work of visual art, or documentation or packaging is not counterfeit or infringing of any copyright; and
  (B) that is, without the authorization of the copyright owner--
    (i) distributed or intended for distribution not in connection with the copy, phonorecord, or work of visual art to which such labeling component was intended to be affixed by the respective copyright owner; or
    (ii) in connection with a genuine certificate or licensing document, knowingly falsified in order to designate a higher number of licensed users or copies than authorized by the copyright owner, unless that certificate or document is used by the copyright owner solely for the purpose of monitoring or tracking the copyright owner's distribution channel and not for the purpose of verifying that a copy or phonorecord is noninfringing".

The bill also creates a new civil remedy for violation of these anti-counterfeiting provisions.

The four actions are Microsoft Corp. v. East Outlet, LLC and Super Supplier LLC, Va., E.D. Va., D.C. No. 4:05 CV 105; Microsoft Corp. v. #9 Software, Inc., E.D. Va., D.C. No. 4:05 CV106; Microsoft Corp. v. CEO Microsystems, Inc., C.D. Cal., D.C. No. SACV05-0559 CJC (RNBx); and Microsoft Corp. v. Wiston Group, Inc., C.D. Cal., D.C. No. CV05-4210 ABC (PJWx).

People and Appointments

6/16. John Swainson was named to the 100 member Board of Directors of the U.S. Chamber of Commerce. He is the P/CEO of Computer Associates. See, U.S. Chamber release.

6/14. David McGuire was named Director of Communications at the Center for Democracy and Technology (CDT). He was previously a technology reporter for He can be reached at 202 637-9800 ext. 106 or dmcguire at cdt dot org.

Washington Tech Calendar
New items are highlighted in red.
Friday, June 17

The House will meet at 9:00 AM.

The Senate will not meet.

The Supreme Court will next meet on Monday, June 20.

8:30 AM - 12:00 NOON. Day two of a two day meeting of the National Science Foundation's (NSF) Advisory Committee for International Science and Engineering. See, notice in the Federal Register, June 1, 2005, Vol. 70, No. 104, at Pages 31545 - 31546. Location: NSF, 4201 Wilson Boulevard, Room 730, Arlington, VA.

9:00 AM - 3:00 PM. Day two of a two day conference hosted by the University of Maryland University College (UMUC) titled "Pirates, Thieves and Innocents: Perceptions of Copyright Infringement in the Digital Age". Registration has closed. The event will be webcast. See, webcast registration page. Location: UMUC, 3501 University Blvd. East, Adelphi, MD.

Deadline to submit comments to the Antitrust Modernization Commission (AMC) in response to the AMC's request for public comments regarding (1) treble damages, (2) prejudgment interest, (3) attorneys' fees, (4) joint and several liability, contribution, and claim reduction, (5) remedies available to the federal government, (6) private injunctive relief, and (7) indirect purchaser litigation. See, notice in the Federal Register: May 19, 2005, Vol. 70, No. 96, at Pages 28902-28907.

Monday, June 20

The Senate will meet at 2:00 PM. It will resume consideration of HR 6, the energy bill.

The Supreme Court will return from recess. It is possible that it will issue opinions in MGM v. Grokster (regarding copyright and P2P systems), and NCTA v. Brand X (regarding regulation of broadband internet services). It may also announce its certiorari decision in Honeywell v. Hamilton Sundstrand (regarding whether a patent applicant who has withdrawn an independent patent claim and rewritten a formerly dependent claim as a new independent claim is subject to prosecution history estoppel).

The annual U.S.-EU Summit will take place. See, White House release. Location: Washington DC.

10:00 AM. Kevin Ring (author of Scalia Dissents : Writings of the Supreme Court's Wittiest, Most Outspoken Justice), Herman Schwartz (American University Law School) and Mark Tushnet (Georgetown University Law School) will participate in a panel discussion regarding Supreme Court developments. Location: Zenger Room, National Press Club, 529 14th St. NW, 13th Floor.

12:30 PM. Rep. Mel Watt (D-NC), a member of the House Judiciary Committee, will give a luncheon address. Location: Ballroom, National Press Club, 529 14th St. NW, 13th Floor.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its notice of proposed rulemaking (NPRM) [15 pages in PDF] regarding implementation of the satellite broadcast carriage requirements in the noncontiguous states, as required by Section 210 of the Satellite Home Viewer Extension and Reauthorization Act of 2004 (SHVERA). The FCC adopted this NPRM at its April 29, 2005 meeting. This NPRM is FCC 05-92 in MB Docket No. 05-181. See, notice in the Federal Register, May 20, 2005, Vol. 70, No. 97, at Pages 29252-29253.

Tuesday, June 21

10:00 AM. The House Judiciary Committee's (HJC) Subcommittee on Courts, the Internet, and Intellectual Property will hold an oversight hearing titled "Copyright Office Views on Music Licensing Reform". The hearing will be webcast by the HJC. Press contact: Jeff Lungren or Terry Shawn at 202 225-2492. Location: Room 2141, Rayburn Building.

10:00 AM - 2:00 PM. The Progress and Freedom Foundation (PFF) will host an event titled "Digital Age Communications Act Regulatory Framework Working Group: Public Release and Discussion of a Working Group Draft Document". The speakers will be Sen. John Ensign (R-NV), FCC Commissioner Kathleen Abernathy, Raymond Gifford (PFF), Randolph May (PFF), and James Speta (Northwestern University law school). See, PFF notice. See also, story titled "PFF Announces Digital Age Communications Act Project" in TLJ Daily E-Mail Alert No. 1,068, February 2, 2005. For more information, contact Brooke Emmerick at 202 289-8928 or bemmerick at pff dot org. Location: Hyatt Regency Capitol Hill, 400 New Jersey Ave., NW.

12:15 PM. The Federal Communications Commission (FCC) will hold a meeting titled "Current Status of FCC Proceedings Involving VOIP and other IP Enabled Services". The speaker will be Thomas Navin, Chief of the FCC's Wireline Competition Bureau. The FCC's proceedings are titled "In the Matter of IP-Enabled Services" (WC Docket No. 04-36), and "E911 Requirements for IP-Enabled Service Providers" (WC Docket No. 05-196). For more information, contact Catherine Bohigian at or Frank Lloyd at The Federal Communications Bar Association (FCBA) states that this is a meeting of its Cable Practice Committee, and requests an RSVP to Wendy Parish at Location: Mintz Levin, 701 Pennsylvania Ave., NW , 9th Floor.

Wednesday, June 22

10:00 AM. The Senate Commerce Committee will hold a hearing on telecom mergers. See, notice. Press contact: Melanie Alvord (Stevens) at 202 224-8456 or Melanie_Alvord at commerce dot senate dot gov, or Andy Davis (Inouye) at 202 224-4546 or Andy_Davis at commerce dot senate dot gov. Location: Room 253, Russell Building.

12:00 NOON - 2:30 PM. The U.S. Chamber of Commerce's National Chamber Foundation (NCF) will host a luncheon titled "The Effect of Municipal Broadband Networks on Competition". The speakers will include David Hirschmann (NCF), Jim Kovacs (US Chamber), Dianah Neff (City of Philadelphia), Jim Speta (Northwestern University), and Jim Baller (Baller Herbst Law Group). The price to attend ranges from free to $115. See, notice and agenda [PDF]. Location: US Chamber, 1615 H Street, NW.

RESCHEDULED FROM MAY 11. The Federal Communications Bar Association (FCBA) will host a continuing legal education (CLE) seminar on voice over internet protocol (VOIP). See, registration form [PDF]. Location: Skadden Arps, 700 14th Street, NW.

EXTENDED TO JULY 20. Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Further Notice of Proposed Rulemaking (FNPRM) regarding its intercarrier compensation system. This FNPRM is FCC 05-33 in CC Docket No. 01-92. The FCC adopted this FNPRM at its meeting of February 10, 2005, and released it on March 3, 2005. See, notice in the Federal Register, March 24, 2005, Vol. 70, No. 56, at Pages 15030 - 15044. See also, story titled "FCC Adopts FNPRM in Intercarrier Compensation Proceeding" in TLJ Daily E-Mail Alert No. 1,076, February 14, 2005.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Public Notice [10 pages in PDF] regarding video news releases (VNRs). This notice is FCC 05-84 in MB Docket No. 05-171.

Thursday, June 23

10:00 AM. The Senate Commerce Committee will hold a business meeting. Press contact: Melanie Alvord (Stevens) at 202 224-8456 or Melanie_Alvord at commerce dot senate dot gov, or Andy Davis (Inouye) at 202 224-4546 or Andy_Davis at commerce dot senate dot gov. Location: Room 253, Russell Building.

10:00 AM - 5:00 PM. The Department of Homeland Security's (DHS) Homeland Security Advisory Council (HSAC) will meet. Most of the meeting is closed to the public. See, notice in the Federal Register, June 8, 2005, Vol. 70, No. 109, at Page 33519. The open portion of the meeting, from 10:00 AM - 12:00 NOON, will be held at the Park Hyatt, 24th and M Streets, NW.

12:15 PM. The Federal Communications Bar Association's (FCBA) Mass Media Practice Committee will host a brown bag lunch. Location: National Association of Broadcasters (NAB), 1771 N St., NW, Conference Rooms A & B.

2:00 - 4:00 PM. The Federal Communications Commission's (FCC) WRC-07 Advisory Committee's Informal Working Group 3 (IMT-2000 and 2.5 GHz Sharing Issues) will meet. See, notice [PDF]. Location: FCC, 7th Floor South Conference Room (7-B516), 445 12th Street, SW.

Friday, June 24

10:00 AM - 12:00 NOON. The Progress and Freedom Foundation (PFF) will host a program on media ownership. Adam Thierer (PFF) will discuss his book titled Media Myths: Making Sense of the Debate over Media Ownership [Amazon]. Susan Ness (former Commissioner of the Federal Communications Commission) will comment. Press contact: Patrick Ross at 202 289-8928 or pross at pff dot org. See, notice and registration page. Location: National Press Club, 529 14th St. NW, 13th Floor.

10:00 AM. The Federal Communications Commission (FCC) will hold a pre-auction seminar for its Low Power Television Auction, Auction No. 81. The deadline to register is June 21. See, Public Notice [PDF] numbered DA 05-1624, and dated June 9, 2005. Location: FCC, 445 12th Street, SW.

12:15 PM. The Federal Communications Bar Association (FCBA) will host an event titled "Wireless Luncheon". The price to attend is $15. See, registration form [PDF]. Location: Sidley Austin, 1501 K Street, Room 6-A.

More News

6/16. The House approved HR 2862, the "Science, the Departments of State, Justice, and Commerce, and Related Agencies Appropriations Act for Fiscal Year 2006", by a vote of 418-7. See, Roll Call No. 268. This bill includes a provision, approved on June 15, that pertains to access to library records under the USA PATRIOT Act. See, story titled "House Approves Amendment Related to Section 215 of the PATRIOT Act" in TLJ Daily E-Mail Alert No. 1,155, June 16, 2005.

6/15. Dan Glickman, President of the Motion Picture Association of America (MPAA), gave a speech [MS Word] at a Progress and Freedom Foundation (PFF) event. He argued that free markets and intellectual property rights are necessary to incent creation of entertainment content.

6/15. The Department of Homeland Security (DHS) announced that Visa Waiver Program (VWP) countries will be required to produce passports with digital photographs by October 26, 2005. The DHS stated in a release that "all VWP countries must also present an acceptable plan to begin issuing integrated circuit chips, or e-passports, within one year."

6/14. Rep. Rick Boucher (D-VA) wrote an opinion article titled "A Deal Made in Washington?", which is published in CNET. He argues that any broadcast flag legislation should be tied to his proposal to create a fair use exemption to violation of the anti-circumvention provisions of the DMCA. He wrote that "If the MPAA expects Congress to ratify a rule that would limit the ability of ordinary consumers to share lawfully acquired digital broadcast television programs with one another, then it shouldn't be surprised if Congress insists that the MPAA accept in return a restoration of the fair use rights taken from consumers through the enactment of the Digital Millennium Copyright Act (DMCA)." On May 6, 2005, the U.S.Court of Appeals (DCCir) issued its opinion [34 pages in PDF] in American Library Association v. FCC, overturning the Federal Communications Commission's (FCC) broadcast flag rules. See, story titled "DC Circuit Reverses FCC's Broadcast Flag Rules" in TLJ Daily E-Mail Alert No. 1,131, May 9, 2005. On March 9, 2005, Rep. Boucher reintroduced his fair use bill. See, HR 1201 and story titled "Reps. Boucher, Doolittle and Barton Reintroduce Digital Media Consumers' Rights Act" in TLJ Daily E-Mail Alert No. 1,111, April 8, 2005.

6/7. Kyle McSlarrow, P/CEO of the National Cable & Telecommunications Association (NCTA), gave a speech regarding regulation and the process of reviewing the 1996 Telecom Act. The NCTA also released paper [9 pages in PDF] titled "Working Toward a Deregulated Video Marketplace".

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