|FCC Seeks Comments of Massachusetts Port Authority's Attempt to
Regulate Airport WiFi Hotspots
7/29. The Federal Communications Commission's
(FCC) Office of Engineering and Technology (OET)
issued a Public
Notice [PDF] requesting comments on Continental Airlines'
Petition for a Declaratory Ruling [16 pages in PDF] and
supplement [PDF] regarding the
Massachusetts Port Authority's (MPA) attempt to regulate
and extract revenues from airport WiFi hotspots.
Continental installed a WiFi hotspot in its
frequent flyer lounge at the Boston Logan International Airport. It provides WiFi access for free.
The MPA has demanded removal of the antenna.
The MPA asserted in a letter to Continental (which is attached to the petition)
that there is a "potential threat to public safety
caused by Continental’s unauthorized and unlawful wireless communications". The
MPA asserts that Continental's service creates an interference problem.
However, the correspondence attached to the
petition suggests that the MPA's concern is not with radio frequency
interference. Rather, Continental's free service is interfering with the
extraction of monopoly rents from WiFi users, most of whom are not Boston area
The MPA does not object to WiFi operation at the airport. It provides WiFi
service through a third party vendor. The MPA wants to compel Continental to use
its third party vendor's facilities, and to pay its rates, and by implication, pass the costs on
to its customers.
Another problem for the MPA is that some airport
users have obtained free WiFi access by positioning themselves just outside of
The MPA wrote to Continental that it "may make fixed
wireless services available in its Clubroom by making arrangements to route its
wireless signals over the existing WiFi backbone which has been installed and is
operated by AWG, a third party vendor." The MPA states that Continental will be
charged "for airline use based on the number of enplanements" or on the "hits".
Continental asserts that the FCC holds exclusive jurisdiction, and that the
demands of the MPA
are prohibited under the FCC's Over the Air Reception Devices (OTARD) rules.
The MPA also wrote that it "does not concede"
that the FCC's OTARD rules are lawful.
Initial comments are due by August 29, 2005. Reply comments are due by
September 13, 2005. This public notice is DA 05-2213 in ET Docket No. 05-247.
|Martin Gives Speech At NARUC
7/26. Federal Communications Commission (FCC) Chairman
Kevin Martin gave a
speech in Austin, Texas, at a meeting of the
National Association of Regulatory Utility Commissioners (NARUC). He spoke
about universal service, intercarrier compensation, regulatory parity, and
expanding the CALEA regulatory regime.
Universal Service. Martin stated that "The universal
service mechanism is breaking. The method for carriers to contribute into the
fund is outdated. It doesn’t adequately account for the increase in bundled
service offerings, the migration to wireless and VoIP services, and the
shrinking long distance market. Similarly, the way that the funds are
distributed is fraught with complexity."
He said that "it is critical that there be a sufficient and
sustainable mechanism to collect funds in an efficient manner." He added that "I
have urged the Commission to begin assessing contributions primarily based on
working telephone numbers rather than interstate revenue." This would entail
taxing internet protocol based services that assign subscribers numbers.
Compensation. Martin (at left) stated that "The intercarrier compensation scheme
is breaking. The existing scheme is simply unsustainable in a competitive environment
characterized by bundles and mobility."
He said that the FCC "must adopt a rational and unified approach
that replaces the current patchwork of rules. Any new framework must remove the
opportunities for regulatory arbitrage and provide incentives for efficient
He continued that "we must move to a single unitary rate for all
the different types of traffic -- wireless, wireline, VoIP, local, long
distance, interstate, intrastate. In today’s converging IP world, these
distinctions are unsustainable and create opportunities for people to game the
Regulatory Parity. He stated that "We also suffer from a
market-distorting lack of regulatory certainty in the broadband market. Most
prominently, for some time there has been a lack of regulatory parity between
telcos and cable in their provision of broadband."
He said that "we should place all broadband providers on equal footing so
that they can fairly compete in the marketplace -- not in front of regulators". And,
he said that Supreme Court's June 26
pages in PDF] in NCTA v. Brand X "provides us the opportunity to
make this happen."
Martin said that "I have already shared with my colleagues a
proposal that would give telcos the same deregulatory treatment as cable. It is
my strong hope that this order will be adopted as soon as possible so that
consumers can reap the benefits of continued infrastructure investment and the
increased deployment of broadband services."
CALEA. Martin also discussed extending the Communications Assistance
for Law Enforcement Act (CALEA) regulatory regime to internet services. He said
that "broadband Internet access providers and VoIP
providers cannot escape the ability of law enforcement to conduct legitimate
surveillance", and that "law enforcement agencies must have the ability to
conduct electronic surveillance over these new technologies."
|GAO Examines Information Security Practices
of Financial Market Organizations
7/29. The Government Accountability Office
(GAO) wrote a letter [9 pages in PDF]
to leaders of the House Commerce Committee
(HCC) titled "Financial Market Organizations Have Taken Steps to Protect against
Electronic Attacks, but Could Take Additional Actions".
The letter was written for the Rep. Joe
Barton (R-TX) and Rep. John Dingell
(D-MI), the Chairman and ranking Democrats of the HCC, as well as the Chairmen
and ranking Democrats on two of the HCC's subcommittees.
The letter states that "Electronic attacks can be the result of individuals (such as
hackers) or groups, such terrorist organizations or foreign governments,
attempting to gain unauthorized access to a specific organization’s networks or
systems or from malicious computer programs or codes, such as viruses or worms,
that seek to damage data or deny access to legitimate users." (Parentheses
The letter then identifies five elements of a sound information security program:
"Information security policies and procedures that cover all
major systems and facilities and outline the duties of those responsible for
Access controls to prevent unauthorized access to networks and information systems,
Intrusion detection systems that monitor for attempts to gain unauthorized access to
networks and information systems,
Incident response procedures to address electronic attacks or breaches, and
Testing and assessments of an organization’s vulnerability to attack and audits of
its information security practices and controls."
The GAO examined the information security practices of financial market
organizations, which it did not identify. It found that "all seven of the selected
financial market organizations are taking steps to prevent their operations from being disrupted
by electronic attacks. Each of the organizations had implemented the five major
elements of a sound information security program. However, we identified actions
that each organization could take to further improve their protections against
attacks or unauthorized access."
|DC Circuit Rules in FTC Competition
7/22. The U.S. Court of Appeals (DCCir)
opinion [17 pages in PDF] in Polygram Holdings v. FTC, denying a petition
for review of a Final Order
[8 pages in PDF] of the Federal Trade Commission (FTC)
that held that music companies illegally agreed to restrict competition for audio
and video products featuring three tenors.
For the purposes of this proceeding, the three tenors are José Carreras, Placido
Domingo, and Luciano Pavarotti. They sang together at several concerts. Polygram Holdings,
Inc., and Warner Communications, Inc., sold recordings of these concerts. They also reached
an agreement, with which they substantially complied, to restrict advertising and discounting
of certain recordings featuring these the three tenors.
The FTC issued an administrative complaint alleging violation of Section 5 of
the FTC Act, which is codified at
15 U.S.C. § 45. Section 5, among other things, prohibits "Unfair methods of
competition in or affecting commerce". Warner consented to an order being entered
against it. However, Polygram contested the allegations.
The FTC concluded that the analysis
under § 5 of the FTC Act is the same in this case as it would be under § 1 of the
Sherman Act, which is codified at
15 U.S.C. § 1. The FTC found that the agreement was inherently suspect because such
restraints by their nature tend to raise prices and to reduce output. See also, FTC
On September 23, 2004, Polygram, and its affiliates, Decca Music Group Limited, UMG Recordings
Inc., and Universal Music & Video Distribution Corp., filed a petition for review
with the Court of Appeals.
The Court of Appeals denied the petition for review.
This case is Polygram Holdings, Inc., et al. v. FTC, U.S. Court of Appeals
for the District of Columbia, App. Ct. No. 03-1293, a petition for review of a final order
of the FTC. Judge Douglas Ginsburg wrote the opinion of the Court, in which Judges Edwards
and Rogers joined.
|Washington Tech Calendar
New items are highlighted in red.
|Tuesday, August 2
The House will not meet on Monday, August 1 through Monday, September 5. See,
and Republican Whip Notice.
The Senate will not meet on Monday, August 1 through Monday, September 5. See,
The Supreme Court is between terms. The opening conference of its October
2005 Term will be held on September 26, 2005.
10:00 AM - 12:00 NOON. The Department of
State's (DOS) International Telecommunication Advisory Committee (ITAC) will
meet to prepare for the ITU-D's meetings of
Group 1 and
Group 2, which will take place in September, Geneva, on September 6-9 and 12-15,
notice in the Federal Register, July 8, 2005, Vol. 70, No. 130, at Pages
39544 - 39545. Location: Room 2533A, State Department.
|Wednesday, August 3
10:00 AM. The U.S. Court
of Appeals (FedCir) will hear oral argument in Microstrategy v. Business
Objects, No. 04-1572. This is a patent infringement case involving relational
databases. Location: U.S. Court of Appeals, LaFayette Square, 717 Madison Place,
The Federal Communications Commission (FCC)
will hold Auction 61, the auction of of ten Automated Maritime Telecommunications
System (AMTS) licenses. See,
in the Federal Register, February 11, 2005, Vol. 70, No. 28, at Pages 7270 - 7274;
notice in the Federal Register, May 23, 2005, Vol. 70, No. 98, at Pages
29497 - 29510; and,
notice in the Federal Register, June 1, 2005, Vol. 70, No. 104, at Pages
31468 - 31469.
|Thursday, August 4
9:30 AM. The Federal Communications
Commission (FCC) will hold a meeting. See,
agenda [PDF]. The event will be webcast by the FCC.
Location: FCC, 445 12th Street, SW, Room TW-C05 (Commission Meeting Room).
9:30 AM - 12:00 NOON. The
Heritage Foundation will host an event titled
"Challenges Facing the 21st Century U.S. Workforce". The first panel is titled
"Technology and Evolving Labor Markets". The speakers will be
Furchtgott-Roth (Hudson Institute), Daniel Pink (Wired Magazine), and David Barnes
(IBM). The second panel (at 10:30 AM) is titled
"Labor Laws -- Ripe for Reform?". The speakers will be Janemarie Mulvey (Employment
Policy Foundation), Paula Collins (Texas Instruments),
William Conerly (American Institute of Full Employment). The keynote address (at 11:30 AM)
will be delivered by Secretary of Labor Elaine Chao. See,
Location: Heritage, 214 Massachusetts Ave., NE.
10:00 AM. The U.S. Court
of Appeals (FedCir) will hear oral argument in Ultratech, Inc. v. Tamarack
Scientific Co., No. 05-1107. The is an appeal from the
U.S. District Court (NDCal) in a patent
infringement case involving technology for making semiconductors. The District Court
case is No. C 03-3235 CRB (JL). Location: U.S. Court of Appeals, LaFayette Square, 717
Madison Place, Courtroom 402.
10:00 AM - 12:00 NOON. The Department of State's (DOS) International
Telecommunication Advisory Committee (ITAC) will meet to prepare for the Americas
Regional Preparatory Meeting for the World Telecommunication Development
Conference (WTDC-06) in Lima, Peru, from August 9-11, 2005. See,
notice in the Federal Register, June 22, 2005, Vol. 70, No. 119, Page
36224. Location: DOS, Room 2533A.
Deadline to submit reply comments to the
Federal Communications Commission (FCC) regarding a
petition for a declaratory ruling that certain provisions of the California Consumer Legal
Remedies Act (CLRA), as applied to interstate telephone calls, are not preempted by the
Telephone Consumer Protection Act (TCPA). See,
notice in the Federal Register, June 15, 2005, Vol. 70, No. 114, at Pages
34725 - 34726. This proceeding is CG Docket No. 02-278.
|Friday, August 5
1:00 - 4:00 PM. The DC Bar Association
will host a continuing legal education (CLE) seminar titled "The USA Patriot
Act: A Primer". The speakers will be Sharie Brown (Foley & Lardner) and
others. The price to attend ranges from $80-$125. For more information, call 202-626-3488.
notice. Location: D.C. Bar Conference Center, 1250 H Street NW, B-1 Level.
Deadline to submit comments to the U.S.
Patent and Trademark Office (USPTO) regarding its document titled "Green
Paper", which describes and evaluates four options to reform restriction
practice. The USPTO plans to draft a "White Paper" that includes proposed
legislation reforming restriction practice. See,
notice in the Federal Register, June 6, 2005, Vol. 70, No. 107, at Pages
32761 - 32762.
|Monday, August 8
Extended deadline to submit initial comments to the
Federal Communications Commission (FCC) in response to
its notice of second further proposed rulemaking regarding horizontal and vertical cable
ownership limits. The FCC adopted this Second Further NPRM on May 13, 2005, and released
it on May 17, 2005. This item is FCC 05-96 in MM Docket No. 92-264. See, original
notice in the Federal Register, June 8, 2005, Vol. 70, No. 109, at Pages 33679 -
33687. See also,
notice of extension of deadlines, in the Federal Register, July 6, 2005,
Vol. 70, No. 128, at Pages 38848 - 38849.
Deadline to submit initial comments to the
Federal Communications Commission (FCC) in
response to it notice of proposed rulemaking (NPRM) regarding low power FM
rules. The FCC adopted its order and NPRM on March 16, 2005, and released it
on March 17, 2005. It is FCC 05-75 in MM Docket No. 99-25. See,
notice in the Federal Register, July 7, 2005, Vol. 70, No. 129, at Pages
39217 - 39227.
|Tuesday, August 9
2:00 - 4:00 PM. The
Federal Communications Commission's (FCC) Informal Working Group 3:
IMT-2000 and 2.5 GHz Sharing Issues will meet. See, FCC
notice [PDF]. Location: FCC, 445 12th Street, SW, 6th Floor South
Conference Room (6-B516).
6:00 - 9:15 PM. The DC Bar
Association will host a the first part of a continuing legal education (CLE)
seminar titled "Software Patent Primer: Acquisition, Exploitation,
Enforcement and Defense". The speakers will be Stephen Parker (Novak Druce),
Brian Rosenbloom (Rothwell Figg Ernst & Manbeck), David Temeles (Temeles &
Temeles), and Martin Zoltick (Rothwell Figg). The price to attend ranges from
$95-$170. For more information, call 202-626-3488. See,
notice. Location: D.C. Bar Conference Center, 1250 H Street NW, B-1 Level.
8/2. The Progress and Freedom Foundation (PFF)
paper [22 pages in PDF] titled "Reflections on Intellectual Property and
Standards: The Immediate Issue: Should Standards be Own-Able?". The PFF's
James DeLong, the author, writes that there are two issues. First, "Should a
standard-setting organization (SSO) be willing to embrace a standard that can be
implemented only with the use of intellectual property owned by a particular
firm, and upon which the firm desires to collect royalties and impose other
licensing conditions?" Second, "if an SSO is willing in principle to consider
adopting an ``owned´´ standard, should it sometimes make its approval
conditional upon the holder of the relevant IP agreeing to forego some of its
property rights?" DeLong concludes that "The answers are ``yes,´´ SSOs should be
willing to endorse ``owned´´ standards, and ``yes,´´ they should also be willing
to make the endorsement conditional on the owner's willingness to renounce some
of its property rights."
8/1. The Copyright Office published a
notice in the Federal Register regarding a "notice of policy decision"
regarding the recordation of documents with the Copyright Office pertaining to copyrights,
such as assignments. See, Federal Register: August 1, 2005, Vol. 70, No. 146,
Pages 44049 - 44052.
7/25. The National Cable Telecommunications
Association (NCTA) released a
paper [PDF] titled "Commercial Broadcasters Want a Free Ride at Everyone
Else's Expense". It is a criticism of the proposals of the National Association
of Broadcasters (NAB) to impose dual carriage and multicast must carry
requirements on all cable operators. It states that "the broadcasters hope to
commandeer the digital television transition by insisting on government
regulations that would expand a cable operator’s ``must-carry´´ requirement to
at least six channels per broadcaster -- which in major markets translates into
mandatory carriage of over 100 broadcast television channels."
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