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August 15, 2005, 9:00 AM ET, Alert No. 1,195.
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FCC Seeks Comments on Petitions for Reconsideration of E911 VOIP Order

8/12. Several entities have filed petitions for reconsideration and/or clarification of the Federal Communications Commission's (FCC) May 19, 2005 order requiring "interconnected VOIP service providers" to comply with 911/E911 regulations. On August 12, the FCC released a public notice [PDF]. It does not set comment deadlines.

The FCC adopted its First Report and Order and Notice of Proposed Rulemaking on May 19, 2005. See, stories titled "FCC Adopts Order Expanding E911 Regulation to Include Some VOIP Service Providers", "Summary of the FCC's 911 VOIP Order", "Opponents of FCC 911 VOIP Order State that the FCC Exceeded Its Statutory Authority", and "More Reaction to the FCC's 911 VOIP Order", in TLJ Daily E-Mail Alert No. 1,139, May 20, 2005. The FCC released the text [90 pages in PDF] on June 3, 2005. See, story titled "FCC Releases VOIP E911 Order" in TLJ Daily E-Mail Alert No. 1,148, June 6, 2005.

The May 19 order and NPRM is numbered FCC 05-116. There are two proceedings. One is titled "In the Matter of IP-Enabled Services" and numbered WC Docket No. 04-36. The other is titled "E911 Requirements for IP-Enabled Service Providers" and numbered WC Docket No. 05-196

The FCC also issued a document [PDF] on July 26, 2005 that amends the May 19 order. See, story titled "FCC Amends E911 VOIP Order's Subscriber Notice, Reporting and Cancellation Requirements" in TLJ Daily E-Mail Alert No. 1,184, July 28, 2005.

National Emergency Number Association (NENA) and the VON Coalition filed a document [11 pages in PDF] titled "Joint Petition for Clarification National Emergency Number Association & Voice on the Net (VON) Coalition", on July 29, 2005. It addresses PSAP inability to receive automatic location information data, address validation, ability to access selective router via the PSTN, automatically obtained location information as registered location, limiting the location from which service can be used by contract, and testing and trials of service.

CompTel filed a document [8 pages in PDF] titled "Petition for Reconsideration/Clarification and/or Waiver", on July 29, 2005. It requests that the FCC "clarify that the customer notification and warning requirements set forth in  9.5(e) of the Commission Rules do not apply to interconnected VoIP service providers providing non-nomadic VoIP services to business customers receiving T1 equivalent services based on the fact that E911 services received via traditional T1 broadband connection are functionally equivalent to the same services provided via VoIP, with no discernible difference in risk of E911 failure."

T-Mobile filed a document [16 pages in PDF] titled "Petition T-Mobile USA, Inc., for Clarification", on July 29, 2005. It makes numerous requests of the FCC. It characterizes these as "only limited clarification of certain operational aspects of the VoIP E911 Order".

The FCC's public notice, numbered DA 05-2277, does not set deadlines for public comments on these petitions. It does provide that oppositions will be due within 15 days after publication of a notice in the Federal Register. This publication has not yet occurred. Replies will be due within an additional 10 days.

FCC Releases NOI on Video Competition and Other Topics

8/12. The Federal Communications Commission (FCC) released its Notice of Inquiry (NOI) [34 pages in PDF] in which it seeks comments to assist it in preparing its annual report to the Congress on the state of competition in the market for the delivery of video programming. This NOI also seeks comments on many unrelated issues, such as network neutrality, VOIP, E911, IPv6, and DRM.

The NOI asks 34 pages of questions regarding video programming via cable, satellite, local exchange carriers, electric companies, internet service providers, and others. It also asks questions about internet video, video sales and rentals.

This report is required by 47 U.S.C. 548(g). It requires that the FCC "annually report to Congress on the status of competition in the market for the delivery of video programming".

However, the NOI is broad, and seeks information on issues beyond competition in the market for the delivery of video programming. Commissioner Michael Copps points out in his separate statement [PDF] that "This NOI launches a report that serves as the factual foundation for numerous Commission decisions".

The NOI also covers voice over internet protocol (VoIP). It asks "What is the status of the development and deployment of VoIP?"

The NOI also enquires about network neutrality. It asks, at Paragraph 36, "Are cable operators who offer cable modem service giving subscribers a choice of Internet service providers?" It also asks "Has any cable operator blocked access to certain kinds of Internet content or applications and, if so, what kind?"

These questions relate to the yet to be released document titled "Policy Statement", which the FCC adopted on August 5, 2005. The FCC release that describes this item states that the policy statement provides that "consumers are entitled to access the lawful Internet content of their choice". See, story titled "FCC Adopts a Policy Statement Regarding Network Neutrality" in TLJ Daily E-Mail Alert No. 1,190, August 8, 2005.

The NOI also asks about IPv6. It states, at Paragraph 36, "We also seek information on whether cable operators are beginning to test or deploy Internet Protocol version 6 (IPv6)." See also, story titled "House Government Reform Committee Holds Hearing on IPv6" in TLJ Daily E-Mail Alert No. 1,168, July 6, 2005.

The NOI also asks about E911, even though the FCC already has other open proceedings related to E911. See, Paragraph 37.

The NOI also asks about digital rights management (DRM), at Paragraph 63.

Also, on the subject of internet protocol TV (IPTV), the NOI not only asks for comments on competition issues, but also on any "regulatory issues raised by the provision of IPTV over broadband Internet connections".

This proceeding is titled "In the Matter of Annual Assessment of the Status of Competition in the Market for the Delivery of Video Programming ". This NOI is 05-155 in MB Docket No. 05-255.

The deadline to submit comments is September 19, 2005. The deadline for reply comments is October 3, 2005.

US Argues Congress Has Commerce Clause Authority to Criminalize Acts Involving Use of Computer

8/12. The Office of the Solicitor General (OSG) filed a petition for writ of certiorari with the Supreme Court in US v. Mathews. This case concerns whether the Congress can enact an criminal statute, based upon Commerce Clause authority, where the crime involves use of materials, "including a computer", that have traveled in interstate commerce.

18 U.S.C. 2252A(a) provides, in part, that "(a) Any person who ... (5) ... (B) knowingly possesses any book, magazine, periodical, film, videotape, computer disk, or any other material that contains an image of child pormography that has been mailed, or shipped or transported in interstate or foreign commerce by any means, including by computer, or that was produced using materials that have been mailed, or shipped or transported in interstate or foreign commerce by any means, including by computer, ... shall be punished ..."

The original understanding of the Constitution was that the Congress has authority to enact legislation only on those topics enumerated in Article I. There is no general grant of criminal law making authority in the Constitution. There is an implied power to enact certain criminal laws as "necessary and proper for carrying into Execution" other enumerated powers. See, Article I, Section 8, Clause 18. Many federal criminal statutes, including the one at issue in this case, as well as many technology related criminal statutes, are based upon the authority of the Commerce Clause, Article I, Section 8, Clause 2.

The U.S. District Court (NDAlab) and the U.S. Court of Appeals (11thCir) both held that applying this statute to this defendant exceeds the Congress' authority under the Commerce Clause. The OSG asks the Supreme Court to grant certiorari, and vacate the judgment of the Court of Appeals. It concludes that this "case should be remanded for further consideration in light of this Court's decision in Gonzales v. Raich".

On June 6, 2005, the Supreme Court issued its opinion [79 pages in PDF] in Gonzales v. Raich, another case regarding the authority of the Congress to enact criminal statutes under the Commerce Clause. The Court upheld a section of the Controlled Substances Act as a valid exercise of federal power. See, story titled "Supreme Court Upholds Broad Congressional Power to Enact Criminal Statutes Under Commerce Clause" in TLJ Daily E-Mail Alert No. 1,149, June 7, 2005.

This case is US v. Justin Wayne Matthews, Sup. Ct. No. 05-59, a petition for writ of certiorari to the U.S. Court of Appeals for the 11th Circuit. The Court of Appeals number is 04-11052. The U.S. District Court for the Northern District of Alabama number is 02-00549 CR-S-M.

More News

8/11. The Copyright Office (CO) published a notice in the Federal Register that "announces the termination of two proceedings under the Copyright Arbitration Royalty Panel system to distribute royalty fees paid by importers and manufacturers of digital audio recording devices and media who distributed these products in the United States during the period beginning January 1, 2002, and ending on December 31, 2003." The notice also announces that the CO "is also providing notice that the authority to make determinations regarding the distribution of the 2004 Digital Audio Recording Royalty Funds passed to the Copyright Royalty Board on May 31, 2005." See, Federal Register, August 11, 2005, Vol. 70, No. 154, at Page 46891.

Washington Tech Calendar
New items are highlighted in red.
Monday, August 15

The House will not meet on Monday, August 1 through Monday, September 5. See, House calendar and Republican Whip Notice.

The Senate will not meet on Monday, August 1 through Monday, September 5. See, Senate calendar.

The Supreme Court is between terms. The opening conference of its October 2005 Term will be held on September 26, 2005.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to the notice of proposed rulemaking (NPRM) portion of its order and NPRM regarding the extension of 911/E911 regulation to interconnected voice over internet protocol (VOIP) service providers. The FCC adopted, but did not release, this order and NPRM on May 19, 2005. The FCC released the text [90 pages in PDF] of this order and NPRM on June 3, 2005. See, story titled "FCC Releases VOIP E911 Order" in TLJ Daily E-Mail Alert No. 1,148, June 6, 2005, and story titled "FCC Sets Deadlines for Comments on VOIP NPRM" in TLJ Daily E-Mail Alert No. 1,167, July 5, 2005. See, FCC notice (DA 05-1905) [3 pages in PDF].

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Third Further Notice of Proposed Rule Making (NPRM), adopted on December 20, 2004, regarding whether to defer or eliminate the requirement in the rules that certain applications for equipment authorization received on or after January 1, 2005, specify 6.24 kHz capability. This item is FCC 04-292 in WT Docket No. 99-87 and RM-9332; See, notice in the Federal Register, June 15, 2005, Vol. 70, No. 114, at Pages 34726 - 34729.

Deadline to submit nominations of members to serve on the National Institute of Standards and Technology's (NIST) Advanced Technology Program Advisory Committee. See, notice in the Federal Register, July 29, 2005, Vol. 70, No. 145, at Page 43844.

Deadline to submit nominations of members to serve on the National Institute of Standards and Technology's (NIST) Visiting Committee on Advanced Technology. See, notice in the Federal Register, July 29, 2005, Vol. 70, No. 145, at Pages 43844-43845.

Deadline to submit nominations of members to serve on the National Institute of Standards and Technology's (NIST) Board of Overseers of the Malcolm Baldrige National Quality Award. See, notice in the Federal Register, July 29, 2005, Vol. 70, No. 145, at Pages 43845-43846.

Deadline to submit nominations of members to serve on the National Institute of Standards and Technology's (NIST) Judges Panel of the Malcolm Baldrige National Quality Award. See, notice in the Federal Register, July 29, 2005, Vol. 70, No. 145, at Pages 43846-43847.

Deadline to submit comments to the Department of Homeland Security's (DHS) Homeland Security Science and Technology Advisory Committee (HSSTAC) regarding its meeting of August 23-24, 2005. See, notice in the Federal Register, August 9, 2005, Vol. 70, No. 152, at Pages 46182 - 46183.

Tuesday, August 16

9:00 AM - 12:00 NOON. The Department of Homeland Security (DHS) will host a briefing on its new programs for acquiring information technology services and commodities. For more information, call 202 282-8010. Location: Ronald Reagan Auditorium.

10:00 AM. The Federal Trade Commission (FTC) will hold a news conference to "announce settlement of FTC charges that an Internet marketer used the lure of a free credit reports to deceive consumers". The FTC notice also states that "Reporters who want to cover the event, but who cannot attend, can participate by phone. Dial in number: 800-377-4562; confirmation number: 43816272; chairperson Gracie Johnson. Reporters can ask questions during the conference by e-mailing pressquestions@FTC.gov". Location: FTC, 600 Pennsylvania Ave., NW, Room 332.

2:00 - 4:00 PM. The Department of States' (DOS) International Telecommunication Advisory Committee (ITAC) will meet to prepare for the CITEL Permanent Consultative Committee I, Telecommunication Standardization. See, notice in the Federal Register, July 13, 2005, Vol. 70, No. 133, at Page 40414. Location: undisclosed. The DOS states that "Access to these meetings may be arranged by contacting Julian Minard at minardje at state dot gov.

Wednesday, August 17

2:00 - 4:00 PM. The Department of States' (DOS) International Telecommunication Advisory Committee (ITAC) will meet to prepare for ITU-T Study Group 3's Working Party on Charging and Accounting Principles. See, notice in the Federal Register, July 13, 2005, Vol. 70, No. 133, at Page 40414. Location: undisclosed. The DOS states that "Access to these meetings may be arranged by contacting Julian Minard at minardje at state dot gov.

Thursday, August 18

6:00 - 8:15 PM. The DC Bar Association will host a continuing legal education (CLE) seminar titled "Trade Secrets: Case Law Update". The speaker will be Milton Babirak (Babirak Vangellow & Carr). The price to attend ranges from $70-$125. For more information, call 202-626-3488. See, notice. Location: D.C. Bar Conference Center, 1250 H Street NW, B-1 Level.

Friday, August 19

Deadline to submit comments in response to, and notices of intent to participate in proceedings on, the Copyright Office's (CO) settlement proposal for the adjustment of certain royalty rates for use of the cable statutory license. See, notice in the Federal Register, July 20, 2005, Vol. 70, No. 138, at Pages 41650 - 41652.

Monday, August 22

Deadline to submit initial comments to the Copyright Office in response to its notice of proposed rulemaking (NPRM) regarding preregistration of unpublished works provision under the Artists' Rights and Theft Prevention Act (ART Act). See, notice in the Federal Register, July 22, 2005, Vol. 70, No. 140, at Pages 42286 - 42292. See also, story titled "Copyright Office Commences Rulemaking on Preregistration of Unpublished Works" in TLJ Daily E-Mail Alert No. 1,181, July 25, 2005.

Deadline to submit comments to the Internal Revenue Service (IRS) in response to its notice of proposed rulemaking (NPRM) regarding the filing of information returns by donees relating to qualified intellectual property contributions. See, notice in the Federal Register, May 23, 2005, Vol. 70, No. 98, at Pages 29460 - 29461.

Deadline to submit comments to the U.S. Patent and Trademark Office (USPTO) in response to its notice of proposed rulemaking (NPRM) regarding changes to the rules of practice to implement the provisions for refunding the search fee for applicants who file a written declaration of express abandonment before an examination has been made of the application. See, notice in the Federal Register, June 21, 2005, Vol. 70, No. 118, at Pages 35571 - 35573.

Deadline to submit initial comments to the Copyright Office regarding its first report to the Congress required by the Satellite Home Viewer Extension and Reauthorization Act of 2004. See, notice in the Federal Register, July 7, 2005, Vol. 70, No. 129, at Pages 39343 - 39345.

EXTENDED TO SEPTEMBER 21. Deadline to submit reply 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, original notice in the Federal Register, July 7, 2005, Vol. 70, No. 129, at Pages 39217 - 39227. See also, FCC notice [PDF] extending the deadlines.

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