Tech Law Journal Daily E-Mail Alert
April 7, 2006, Alert No. 1,345.
Home Page | Calendar | Subscribe | Back Issues | Reference
FCC Amends Junk Fax Rules

4/6. The Federal Communications Commission (FCC) adopted on April 5, and released on April 6, an order [50 pages in PDF] titled "Report and Order and Third Order on Reconsideration" that amends the FCC's junk fax rules, as required by the Junk Fax Prevention Act of 2005. See also, FCC release [PDF].

The order states that the rules changes "(1) codify an established business relationship (EBR) exemption to the prohibition on sending unsolicited facsimile advertisements; (2) provide a definition of an EBR to be used in the context of unsolicited facsimile advertisements; (3) require the sender of a facsimile advertisement to provide specified notice and contact information on the facsimile that allows recipients to “opt-out” of any future facsimile transmissions from the sender; and (4) specify the circumstances under which a request to “opt-out” complies with the Act."

President Bush signed S 714, the "Junk Fax Prevention Act of 2005", into law on July 11, 2005. It is now Public Law No. 109-21.

This order is FCC 06-42 in its proceeding titled "In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991" and numbered CG Docket No. 02-278, and its proceeding titled "In the Matter of Junk Fax Prevention Act of 2005" and numbered CG Docket No. 05-338.

Reps. Terry and Boucher Introduce Universal Service Bill

3/30. Rep. Lee Terry (R-NE) and Rep. Rick Boucher (D-VA) introduced HR 5072, the "Universal Service Reform Act of 2006". The bill greatly expands the scope of services that would be subject to universal service taxes. See also, Rep. Boucher's overview [PDF] and section by section summary [PDF].

The two released a discussion draft [31 pages in PDF] of this bill in November of 2005. The just introduced bill revises that draft. See, story titled "Reps. Terry and Boucher Propose New Internet Taxes" in TLJ Daily E-Mail Alert No. 1,257, November 21, 2005

Rep. Boucher stated in a release that "After a lengthy process of consultation with industry representatives and others with an interest in the Universal Service Fund, we are introducing this measure, which reflects broad areas of consensus. The legislation will control the spiraling growth of the Universal Service Fund while ensuring that universal service support is available to rural carriers which rely on it to provide service. Our measure will expand who pays into the Fund, cap the growth of the Fund and modernize the Fund by allowing its use for the deployment of high speed broadband service".

Rep. Lee TerryRep. Terry (at right) stated in the same release that "The commonsense approach embodied in this measure will assure that Universal Service support remains available for the preservation of local exchange and broadband service, particularly in rural and underserved areas, far into the future". He added that "This consensus measure will lessen demand for universal service support by limiting the number of eligible telecommunications carriers and compensating eligible telecommunications carriers based on their actual costs of providing service. Reforming USF is a significant step in closing the gap between rural America and urban America, allowing for all of America to compete in the global market place with both products and ideas."

The bill creates a new definition for "communications service provider", and then provides that all such communications service providers (CSPs) are subject to universal service taxation.

The bill provides that a CSP includes any entity that either,

   "(A) contributes to or receives universal service support for the most recent calendar quarter ending before the date of enactment of the Universal Service Reform Act of 2006;
   (B) uses telephone numbers or Internet protocol addresses, or their functional equivalents or successors, to offer a service or a capability (i) that provides or enables real-time 2-way voice communications; and (ii) in which the voice component is the primary function; or
   (C) offers for a fee, directly to the public, or to such classes of users as to be effectively available directly to the public, a physical transmission facility, whether circuit-switched, packet-switched, a leased line, or using radio frequency transmissions, regardless of the form, protocol, or statutory classification of the service, that allows an end user to obtain access, from a particular end user location, to a network that permits the end user to engage in electronic communications (including telecommunications) with the public."

The bill also creates a definition for the term "high-speed broadband service", or HSBS. It is "a two way network that uses the Internet protocol or a successor protocol, and the associated capabilities and functionalities, services, and applications provided over an Internet protocol platform or for which an Internet protocol capability is an integral component, and services, facilities, equipment, and applications that enable an end-user to receive communications in Internet protocol format, regardless of whether the communications are voice, data, video, or any other form, at a download receiving rate not lower than 1 megabit per second".

The bill then provides that "Universal service includes the services defined on the date of enactment of the Universal Service Reform Act of 2006 as universal services, high-speed broadband services, and an evolving level of telecommunications and information services that the Commission shall establish periodically under this section, taking into account advances in telecommunications and information technologies and services."

The bill provides that the FCC "shall assess contributions to universal service support mechanisms from communications service providers. The Commission shall assess such contributions in a manner that is equitable and competitively neutral, is nondiscriminatory in nature, and ensures that communications service providers are subject to similar obligations. The Commission may employ any methodology to assess such contributions, including consideration of (i) revenues derived from the provision of intrastate, interstate, and foreign communications services by communications service providers; (ii) working telephone numbers used by communications service providers; or (iii) any other current or successor identifier protocols or connections to the network used by communications service providers."

The bill also addresses distribution of universal service subsidies. They would not go to consumers. The bill first provides that "Only an eligible telecommunications carrier designated under section 214(e) shall be eligible to receive specific Federal universal service support. A carrier that receives such support shall use that support only for the provision, maintenance, and upgrading of facilities and services for which the support is intended. Any such support should be explicit and sufficient to achieve the purposes of this section."

It then adds that "The use of universal service support for all rural, insular, and high cost areas -- (A) should be expanded to include high-speed broadband services; (B) should be based on actual costs reasonably incurred in providing such services, exclusive of the cost of acquiring spectrum, except that an eligible telecommunications carrier that is an incumbent local exchange carrier may elect to have the Commission calculate the amount of universal service support payable to such carrier pursuant to section 54.309 of title 47, Code of Federal Regulations (as in effect on the date of the enactment of the Universal Service Reform Act of 2006); and (C) should be available to communications service providers that are determined to be eligible telecommunications carriers under section 214(e)."

The bill was referred to the House Commerce Committee. Both Rep. Terry and Rep. Boucher are members.

Walter McCormick, head of the U.S. Telecom Association, stated in a release that "We applaud Congressmen Boucher and Terry for their leadership to help ensure a sustainable future for universal telecom service for Americans living in rural areas. The introduction of this bill is a very positive step and we look forward to working closely with both the House and Senate to enact meaningful universal service reform legislation this year."

Reps. Boucher and Berman Introduce Patent Reform Bill

4/5. Rep. Rick Boucher (D-VA) and Rep. Howard Berman (D-CA) introduced HR 5096 [22 pages in PDF], the "Patents Depend on Quality Act of 2006", or PDQ Act.

This is a revised version of a bill introduced in 2004 by Rep. Boucher and Rep. Berman. Late in the last Congress, on October 8, 2004, the two introduced HR 5299 (108th), the "Patent Quality Assistance Act of 2004". See, story titled "Berman and Boucher Introduce Bill to Provide for Post Grants Reviews of Patents" in TLJ Daily E-Mail Alert No. 999, October 19, 2004.

The just introduced bill creates a new post grant opposition procedure at the U.S. Patent and Trademark Office (USPTO). See, Section 2, at pages 2-15.

Section 3, at pages 15-16, addresses "Publication of Patent Applications". Section 4 of the bill, at pages 16-17, titled "Submission by Third Parties", permits third parties to submit prior art to the USPTO within six months of publication of a patent application.

Section 5, at pages 17-18 addresses "Inter Partes Reexamination". Section 6, at pages 18-21, addresses "Willful Infringement".

Section 7, at pages 21-22, is a venue provision. It provides that the District Court "shall" transfer a case to another district when certain enumerated connections to the district in which the complaint is filed are absent. It would limit forum shopping by patent plaintiffs, and reduce the patent caseload of the Eastern District of Texas.

Section 8, at page 22, is perhaps the most important provision. It limits the availability of injunctive relief in patent cases. 35 U.S.C. § 283 currently provides that "The several courts having jurisdiction of cases under this title may grant injunctions in accordance with the principles of equity to prevent the violation of any right secured by patent, on such terms as the court deems reasonable.

The bill would add the following: "In determining equity, the court shall consider the fairness of the remedy in light of all the facts and the relevant interest of the parties associated with the invention. Unless an injunction is entered pursuant to a nonappealable judgment of infringement, a court shall stay the injunction pending an appeal upon an affirmative showing that the stay would not result in irreparable harm to the owner of the patent and that the balance of hardships from the stay does not favor the owner of the patent."

See also, Boucher release

More IPR News

4/5. The House Judiciary Committee's (HJC) Subcommittee on Courts, the Internet and Intellectual Property held a hearing titled "Patent Quality Enhancement in the Information-Based Economy". See, prepared testimony [7 pages in PDF] of Jon Dudas (Director of the U.S. Patent and Trademark Office), prepared testimony [10 pages in PDF] of Robert Stewart (UBS AG), prepared testimony [21 pages in PDF] of Jim Balsillie (Chairman of Research in Motion, which last month paid $612.5 Million to NTP to settle a patent lawsuit involving its Blackberries), and prepared testimony [PDF] of Mark Lemley (Stanford Law School). Balsillie wrote that "RIM's experience in the NTP case demonstrates that there are significant undesirable social and economic costs contrary to promoting the useful Arts when patents are treated as an absolute property right".

4/6. The Progress and Freedom Foundation (PFF) released a short paper titled "Intellectual Property Rights and Innovation in the Information Technology Industries". The author is the PFF's Jim DeLong. He writes that "many companies are re-conceiving themselves as platform companies, or network companies, with a business plan of providing basic platforms to which others can add innovations." Meanwhile, "Other companies, individuals, and universities are going into the business of producing innovations for the platform companies, knowing that the platform company is better positioned to exploit an innovation -- to develop it, market it, integrate it into an overall system." In addition, the "platform companies sometimes produce innovations that do not fit with the core business or expertise, and which they cannot exploit efficiently. They need to hand off either to other platform companies, which are better able to use a particular innovation, or to innovation companies, which are equipped to take the idea and build on it." DeLong argues that it is the intellectual property rights (IPR) system that enables the innovators and platform companies to deal with each other. Hence, he concludes that "those who regard the destruction of IPR as the key to promoting interoperability and cooperation among firms have the situation exactly backward. To the contrary, the road to effective cooperation and interoperability is through IPR."

Adelstein Decries Fake News

4/6. Federal Communications Commission (FCC) Commissioner Jonathan Adelstein gave another speech [PDF] about "fake news". He appeared at a news conference hosted by the Center for Media Democracy (CMD) and Free Press.

He also gave a speech [PDF] on this subject on May 25, 2005. See, story titled "Adelstein Angles for More FCC Regulation of Speech" in TLJ Daily E-Mail Alert No. 1,143, May 26, 2005.

Jonathan AdelsteinOn April 6, 2006, Adelstein (at right) stated, "Last May, I called on citizens and public interest advocates to monitor the media, and alert the FCC to undisclosed promotions that may violate our sponsorship identification laws. Today, I am here to receive a very well documented and researched report indicating fake news is alive and well in the American media. It shows that local news is sometimes neither local nor news."

He continued that "The problem with the many video news releases these groups have uncovered is that they lead viewers to believe they are watching a real news report when instead they are getting a subtle dose of corporate propaganda."

The CMD published information about its monitoring of media in its web site.

In addition, the Free Press and CMD wrote a letter [3 pages in PDF] to FCC Commissioners asking them to investigate "the ongoing crisis and scandal in our broadcast news media provoked by the widespread and undisclosed use of ``video news releases´´ (VNRs)."

The letter states that "A list of the worst possible offenders includes stations owned by Sinclair Broadcast Group, News Corp./Fox Television Stations, Clear Channel Communications, Tribune Company and Viacom/CBS Corp."

The letter states that it is a "formal complaint", and it uses the term "violations". While, it does not cite by number any statutes or rules that it alleges have been violated, it does allege that "sponsorship identification rules" have been violated.

The letter is also written in the nature of a petition for rulemaking, although it does not identify itself as such. For example, it states that "Before the Commission reconsiders broadcast ownership rules, it should determine whether station consolidation contributes directly to these types of violations."

The letter also requests that the FCC improve "the effectiveness of the rules" regarding sponsorship disclosure. It requests three things:

"1. All broadcast of provided and/or sponsored video footage be required to carry a continuous, frame-by-frame visual notification of its source.
  2. All broadcast of provided and/or sponsored audio material be required to include a verbal notification at its beginning and/or end, disclosing its source.
  3. Broadcasters be required to place in their public file a monthly report on their use of all provided and/or sponsored material."

Washington Tech Calendar
New items are highlighted in red.
Friday, April 7

The House will not meet. It will likely next meet on April 24. However, the House adjourned on April 6 pursuant to a special order that provides the possibility that the House might meet on April 10.

The Senate will meet at 8:30 AM. It will resume consideration of S 2454, the "Securing America's Borders Act".

9:00 AM - 4:00 PM. The Federal Communications Commission's (FCC) Consumer Advisory Committee will meet. See, FCC notice [PDF] and notice in the Federal Register, March 23, 2006, Vol. 71, No. 56, at Page 14693. Location: FCC, 445 12th Street, S.W., Room TW-C305.

POSTPONED. 10:00 AM. The House Judiciary Committee's (HJC) Task Force on Telecom and Antitrust will hold a hearing titled "Network Neutrality: Competition, Innovation and Nondiscriminatory Access". The witnesses may include Walter McCormick (U.S. Telecommunications Association), Earl Comstock (CompTel), Paul Misener (Amazon), Lawrence Lessig (Stanford law school). See, notice. 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. The U.S. Court of Appeals (FedCir) will hear oral argument in M-Star Semiconductor v. ITC, No. 2005-1129. Location: Courtroom 203, 717 Madison Place, NW.

12:30 PM. The House Government Reform Committee will hold a hearing titled "Out at Home: Why Most Nats Fans Can't See Their Team on TV". The Nats are the Washington Nationals, a team in the sport of baseball. Location: Room 2154, Rayburn Building.

Deadline to submit applications to the Federal Communications Commission (FCC) for participation in the FCC's 2006 Attorney Honors Program. The is an employment recruitment program directed at "graduating law school students and recent law school graduates". See, FCC release [PDF].

Monday, April 10

The House will not meet on Monday, April 10, through Friday, April 21. See, Majority Whip's calendar.

The Senate will not meet on Monday, April 10, through Friday, April 21. See, 2006 Senate calendar.

5:30 - 7:00 PM. The American Enterprise Institute (AEI) will host a panel discussion on the book titled Who Controls the Internet? Illusions of a Borderless World [Amazon] by Jack Goldsmith (Harvard Law School) and Timothy Wu (Columbia Law School). The speakers will be Goldsmith, Wu, Alan Davidson (Google), David Gross (Department of State), and Sebastian Mallaby (Washington Post). See, notice. Press contact: Veronique Rodman at 202-862-4870 or VRodman at aei dot org. Location: AEI, 12th floor, 1150 17th St., NW.

Tuesday, April 11

10:00 AM - 12:00 NOON. The Department of State's (DOS) International Telecommunication Advisory Committee (ITAC) will meet to prepare for the CITEL PCC.II (Radiocommunication including Broadcasting) meetings on June 20-23, 2006, in Lima, Peru, and on October 17-20, 2006, in San Salvador, El Salvador. See, notice in the Federal Register, March 29, 2006, Vol. 71, No. 60, at Page 15798. Location: __.

2:00 - 4:00 PM. The Department of State's (DOS) International Telecommunication Advisory Committee (ITAC) will meet to prepare for the CITEL PCC.I (Telecommunication) meetings on May 23-26, 2006 in San Domingo, Dominican Republic, and on September 12-15, 2006, in Washington DC. See, notice in the Federal Register, March 29, 2006, Vol. 71, No. 60, at Page 15798. Location: __.

Wednesday, April 12

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).

2:00 - 4:00 PM. The Department of State's (DOS) International Telecommunication Advisory Committee (ITAC) will meet to prepare for a meeting of the ITU Council. See, notice in the Federal Register, March 29, 2006, Vol. 71, No. 60, at Page 15798. Location: __.

Thursday, April 13


2:00 - 4:00 PM. The Department of State's (DOS) International Telecommunication Advisory Committee (ITAC) will meet to prepare for the 33rd meeting of Asia-Pacific Economic Community Telecommunications and Information Working Group (APEC TEL) in Calgary, Canada, on April 23-28, 2006. See, notice in the Federal Register, March 29, 2006, Vol. 71, No. 60, at Page 15798. Location: Verizon Communications, 1300 Eye St., NW.

Friday, April 14

Good Friday.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its notice of proposed rulemaking (NPRM) [52 pages in PDF] regarding the assessment and collection of regulatory fees for fiscal year 2006. This NPRM is FCC 06-38 in MD Docket No. 06-68.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its notice of proposed rulemaking (NPRM) regarding privacy of consumer phone records. See, notice in the Federal Register, March 15, 2006, Vol. 71, No. 50, at Pages 13317-13323. The FCC adopted this NPRM on February 10, 2006, and released the text [34 pages in PDF] on February 14, 2006. See, story titled "FCC Adopts NPRM Regarding Privacy of Consumer Phone Records" in TLJ Daily E-Mail Alert No. 1,308, February 13, 2006, and story titled "FCC Rulemaking Proceeding on CPNI May Extend to Internet Protocol Services" in TLJ Daily E-Mail alert No. 1,310, February 15, 2006. This NPRM is FCC 06-10 in CC Docket No. 96-115 and RM-11277.

More News

4/6. The House Judiciary Committee (HJC) held an oversight hearing on the Department of Justice (DOJ). Attorney General Alberto Gonzales testified the "In addition to our ongoing fight against terrorism, the Justice Department continues to focus on five strategic priorities", one of which is "cyber crime". He focused on the DOJ's investigations and prosecutions related to internet distribution of child pornography. See, prepared testimony [PDF].

4/5. The House approved HRes 541, which honors Roy Glauber, John Hall, and Theodor Hansch for being awarded the Nobel Prize in Physics for 2005. The Nobel Foundation stated that they won this prize for "their contributions to the development of laser-based precision spectroscopy, including the optical frequency comb technique". Rep. Vern Ehlers (R-MI), the manager of this resolution, stated that "I am particularly honored to offer congratulations to Dr. Jan Hall for his commendable contributions to the field of laser-based precision spectroscopy. His careful and dedicated work has resulted, among other things, in improved accuracy in vital navigation systems such as GPS."

About Tech Law Journal

Tech Law Journal publishes a free access web site and subscription e-mail alert. The basic rate for a subscription to the TLJ Daily E-Mail Alert is $250 per year. However, there are discounts for subscribers with multiple recipients. Free one month trial subscriptions are available. Also, free subscriptions are available for journalists, federal elected officials, and employees of the Congress, courts, and executive branch. The TLJ web site is free access. However, copies of the TLJ Daily E-Mail Alert are not published in the web site until one month after writing. See, subscription information page.

Contact: 202-364-8882.
P.O. Box 4851, Washington DC, 20008.

Privacy Policy
Notices & Disclaimers
Copyright 1998 - 2005 David Carney, dba Tech Law Journal. All rights reserved.