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April 13, 2006, Alert No. 1,349.
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FCC Adopts Rules Changes for BRS and EBS

4/12. The Federal Communications Commission (FCC) adopted, but did not release, an order amending its rules governing the 2496-2690 MHz Broadband Radio Service (BRS) and Educational Broadband Service (EBS) band. The FCC issued a brief release [PDF] that describes this order.

FCC Chairman Kevin Martin and Commissioner Deborah Tate wrote in a joint statement [PDF] that "In 2004, the Commission initiated a fundamental restructuring of the 2500-2690 MHz band to give educational and commercial licensees contiguous spectrum in the low power segments of the band, while preserving the high power segment for video uses, such as long-distance learning. Today, we affirm the allocation decisions adopted in the original order, including the reservation of spectrum for educational users."

They added that "Encouraging education and promoting the deployment of commercial broadband services are both important goals of the Commission, and we believe the leasing provisions the Commission adopts today will support them both."

Commissioner Jonathan Adelstein wrote in a statement [PDF] that "With this omnibus item, we move another step closer to the widespread deployment of wireless broadband services in the 2.5 GHz spectrum band. It’s taken a little longer than I hoped, but we are finally clarifying the set of rules that should accommodate future innovative technologies offered by Broadband Radio Service (BRS) and Educational Broadband Service (EBS) operators and facilitate the provision of advanced spectrum offerings. We are establishing a policy regime that will bring these the EBS and BRS services squarely into the 21st century."

Commissioner Michael Copps wrote in a statement [PDF] that "I worry whether we may be going too far today. I am not so certain that it is really wise for any educational institution to lock up, even partially, use of its valuable EBS license for the next 30 years."

The FCC release offers this summary. "In today's Order, the FCC adopted several modifications and enhancements to its July 2004 BRS/EBS Report and Order which restructured the 2496-2690 MHz band. Specifically, the FCC modified the process for transitioning to the new BRS/EBS band plan by changing the transition planning area from Major Economic Areas to Basic Trading Areas. The FCC also allowed BRS and EBS licensees the option to self transition to the new band plan in markets where a proponent has not come forward or a proponent withdraws an initiation plan. With respect to leases entered into under the FCC’s secondary market rules, the Commission held that EBS licensees are permitted to enter into excess capacity leases for a maximum of 30 years, but leases with terms of 15 years or longer must include a right to review the educational use requirements of the leases every five years starting at year 15. In addition, the FCC established a mechanism for eliminating overlaps between grandfathered EBS E and F channel licensees and co-channel BRS licenses by geographically splitting the overlap area. The FCC also affirmed that BRS and MSS operators can share a segment of this band at 2496-2500 MHz."

This order is titled "Order on Reconsideration and Fifth Memorandum Opinion and Order, and Third Memorandum Opinion and Order and Second Report and Order". It is FCC 06-46 in WT Docket No. 03-66, ET Docket No. 00-258, and IB Docket No. 02-364.

See also, story titled "FCC Announces NPRM To Provide Flexibility To Users of MMDS/ITFS Spectrum" in TLJ Daily E-Mail Alert No. 624, March 17, 2003, and story titled "FCC Adopts RO & NPRM Re ITFS/MDS Band" in TLJ Daily E-Mail Alert No. 916, June 11, 2004.

PR China's Vice Premier Offers Minimal Assurances Regarding IPR Theft

4/11. The U.S. Trade Representative (USTR) Rob Portman, Secretary of Commerce Carlos Gutierrez, and Vice Premier Wu Yi of the People's Republic of China met in Washington DC to discuss China's failure to enforce intellectual property rights (IPR).

The USTR issued a release, PR China issued a release, and the officials held a joint news conference. See, transcript [11 pages in PDF].

The USTR stated in its release that "China committed to addressing ... improving protection of intellectual property rights in China".

The release also states that "The Chinese agreed to the following: ... launching negotiations to join the WTO government procurement agreement; requiring Chinese computers to use legal software; closing optical disk plants that produce pirated CDs and DVDs and stepped up enforcement of IPR; requiring all trade-related measures to be published in a single official journal ..."

The USTR also stated that the U.S. and China agreed "agreed to establish a U.S.-China High Technology and Strategic Trade Working Group under the JCCT to review export control cooperation and facilitate high technology trade. Among the Group’s first activities will be planning a bilateral export control seminar in China."

Carlos GutierrzGutierrez (at right) said at the news conference that "there were commitments made by China to improve enforcement of intellectual property rights. China's national copyright administration and the ministry of Information and Industry have issued rules requiring all manufacturers to preload legal software on computers sold in China." He added that "China has closed a number of factories producing pirated optical discs and is stepping up overall intellectual property enforcement."

"China has agreed to appropriate adjustments in equity capitalization requirements in the telecommunications sector, with discussions to begin this year. This will remove a barrier to U.S. service providers who seek to compete in China."

He continued that "the Chinese have taken steps to ensure greater transparency in their economy. China has announced that it will begin negotiations to join the WTO Government Procurement Agreement. Following technical consultations, China will submit its final offer no later than December 31, 2007. "

Wu YiThe PRC's Wu Yi (at left) said that "The Chinese side provided a comprehensive elaboration on its achievement of IPR protection and the 14 measures to reinforce the protections that have already covered the major IPR concern of the U.S. side."

She continued that "We have issued the action plan on IPR protection in China 2006." She added that "I will not make any further elaboration about this IPR Action Plan on this occasion."

She did state that "IPR trial chambers will be open in courts across China; 50 IPR Infringement Reporting Centers will be set up in 50 key cities in China, and IPR ombudsman has already been dispatched to the Chinese embassy here in the United States."

She continued that "A regulation has been issued regarding the accelerated transfer of IPR cases from administrative enforcement bodies to criminal enforcement bodies. A regulation on IPR protection in trade fairs have been issued. A regulation will be issued requiring that legal operating systems must be preloaded on computers purchased by governments at all levels. A regulation will be issued requiring that computer producers and importers must preload legal operating systems on their computers and products ..."

"The outline of IPR protection has already been formulated. The program of promoting Chinese enterprises to use legal computer software will be implemented. Traditional interpretations of civil prosecution will be formulated. It has been decided that the application for China's accession to the WIPO Internet Treaty will be submitted to China's National People's Congress before the end of June 2006." She also said that "special operations on fighting IPR infringement will be carried out in 2006. Special campaigns of combating illegal optical disc production lines and market rectification have scored positive results."

She also touched on telecom issues. She said that "The position has been reiterated that technology neutrality on three-G standards will be -- remain." She also said that "Consideration will be given to an appropriate adjustment to the telecom capitalization requirement."

Myron Brilliant, of the U.S. Chamber of Commerce, stated in a release that these statements reflect only "modest progress" and "measured gains" on intellectual property rights.

He elaborated that "Putting real teeth into the enforcement of IPR is critical to strengthening the U.S.-China trade relationship ... Even as we recognize measured gains from today’s meetings, we expect future discussions with China to yield significant and consistent progress on systemic challenges that hinder American access to the Chinese market and impede competition."

The International Intellectual Property Alliance (IIPA) stated in a release [PDF] that "While this bilateral negotiating process has achieved some gains in improving the Chinese IPR system, piracy levels remain high and the key commitment to ``significantly reduce levels of IPR infringements´´ in China -- made by Vice Premier Wu Yi in the 2004 JCCT meetings -- have yet to be redeemed by the Chinese authorities."

IIPA President Eric Smith stated in this release that the "IIPA is disappointed that no commitments were made to share forensic data on optical disc products with the private sector to assist in identifying piracy within optical disc factories or to commence a meaningful software asset management system within government ministries, though these issues apparently remain open for discussion in the JCCT IPR Working Group. IIPA also was hoping for the Chinese authorities to announce the commencement of, or conclusion of, significant criminal enforcement actions but no such announcements were made."

Neil Turkewitz of the Recording Industry Association of America (RIAA), stated in a release that "In the wake of this meeting, we look to the Chinese government to take immediate action to reduce copyright piracy within its borders. As always, meaningful follow through is the key to real progress. We continue to call upon China to implement its previous JCCT commitment to reduce copyright piracy by 50 percent from its current levels."

Turkewitz added that "We also continue to advocate that China remove barriers to market and investment access for legitimate sound recording producers. The vacuum caused by China's trade barriers is filled again and again by pirates who, by the nature of their illegal activities, do not adhere to legitimate market rules. We strongly urge that China immediately begin to address the administrative hurdles that limit market entry and the distribution of legal materials. For example, permitting wholly-owned foreign investments in all aspects of sound recording activity would be an important step to ensure that China reaches its potential for generating legitimate commerce in copyright materials."

US and Peru Sign Trade Agreement

4/11. The Office of the U.S. Trade Representative (USTR) announced that USTR Rob Portman and Peruvian Minister of Foreign Trade and Tourism Alfredo Ferrero Diez Canseco signed a document titled "United States -- Peru Trade Promotion Agreement", or PTPA. See, USTR release.

The USTR released a summary [PDF] of the PTPA, but not the PTPA. The PTPA addresses electronic commerce, copyright, circumvention, patents, trademarks, and telecommunications.

The USTR's summary states that "Peru will join the WTO’s Information Technology Agreement (ITA), which removes tariff and non-tariff barriers to information technology products."

Telecommunications. The summary states that "Users of a telecommunications network are guaranteed reasonable and non-discriminatory access to the network. This prevents local firms from having preferential or ``first right´´ of access to telecommunications networks."

It also states that "U.S. phone companies obtain the right to interconnect with Peruvian dominant suppliers' fixed networks at nondiscriminatory and cost-based rates." And, it states that "U.S. firms will be able to lease elements of Peruvian telecom networks on non-discriminatory terms and to re-sell telecom services of Peruvian suppliers to build a customer base."

E-Commerce. The summary states that "The Parties have committed to non-discriminatory treatment of digital products; agreed not to impose customs duties on such products; and agreed to cooperate in numerous policy areas related to ecommerce."

The summary also includes the following vague statement: "Peru and the United States agreed to provisions on e-commerce that reflect the issue’s importance in global trade and the importance of supplying services by electronic means as a key part of a vibrant ecommerce environment."

Copyright, Circumvention, and Enforcement. The summary states that under this agreement, "Copyright owners maintain rights over temporary copies of their works on computers, which is important in protecting music, videos, software and text from widespread unauthorized sharing via the Internet." It also "Establishes that only authors, composers and other copyright owners have the right to make their work available on-line", and "Ensures extended terms of protection for copyrighted works, including phonograms, consistent with emerging international trends."

The summary states that the PTPA "Establishes strong anti-circumvention provisions to prohibit tampering with technologies (like embedded codes on discs) that are designed to prevent piracy and unauthorized distribution over the Internet."

It "Ensures that governments use only legitimate computer software, thus setting a positive example for private users."

It also "Requires rules to prohibit the unauthorized receipt or distribution of encrypted satellite signals, thus preventing piracy of satellite television programming."

The summary also states that this agreement "Provides rules for the liability of Internet Service Providers (ISPs) for copyright infringement, reflecting the balance struck in the U.S. Millennium Copyright Act between legitimate ISP activity and the infringement of copyrights."

It also addresses enforcement. The summary states that the agreement "Criminalizes end-user piracy, providing strong deterrence against piracy and counterfeiting", "Requires the Parties to authorize the seizure, forfeiture, and destruction of counterfeit and pirated goods and the equipment used to produce them", "provides for enforcement against goods-in-transit, to deter violators from using ports or free trade zones to traffic in pirated products", and provides that "Ex officio action may be taken in border and criminal cases".

Finally, the summary states that the agreement "Mandates both statutory and actual damages for copyright infringement and trademark piracy."

Patents and Trade Secrets. The USTR's summary states that the agreement "Provides for the restoration of patent terms to compensate for delays in granting the original patent, consistent with U.S. practice", "Limits the grounds for revoking a patent, thus protecting against arbitrary revocation", "Clarifies that test data and trade secrets submitted to a government for the purpose of product approval will be protected against unfair commercial use for a period of 5 years for pharmaceuticals and 10 years for agricultural chemicals", "Requires a system to prevent the marketing of pharmaceutical products that infringe patents", and "Provides protection for newly developed plant varieties".

Portman added that "We hope to bring Colombia and Ecuador into this agreement as soon as they are ready ..."

See also, U.S. Chamber of Commerce release praising the PTPA.

FCC Adopts Procedures for AWS Auction

4/12. The Federal Communications Commission (FCC) adopted and released a Public Notice [94 pages in PDF] addressing filing requirements, minimum opening bids, upfront payments and other procedures for Auction No. 66. This is the Advanced Wireless Services (AWS) or Third Generation (3G) auction, scheduled to start on June 29, 2006. This item is FCC 06-47 in AU Docket No. 06-30. See also, FCC release.

The FCC will not make available either bidders' license selections on their short form applications or the identities of bidders who place bids in each round, as well as other information on bidder activity and eligibility, until after the close of the auction.

FCC Chairman Kevin Martin explained in a separate statement [PDF] that "allegations of collusive behavior have been raised in regard to past auctions. Despite various attempts to address these concerns, the Commission’s auction processes continue to provide opportunities for various types of collusion and other anti-competitive bidding behavior. Unfortunately, the ongoing susceptibility of our auctions to these practices is no secret; methods for exploiting our auctions have been described in detail in articles directed specifically at the Commission’s current auction format. In light of this evidence, I believe it is essential that we make an effort to foreclose anti-competitive bidding behavior in this auction."

See also, statement [PDF] by Commissioner Deborah Tate, statement [PDF] by Commissioner Jonathan Adelstein, and statement [PDF] by Commissioner Michael Copps.

Washington Tech Calendar
New items are highlighted in red.
Thursday, April 13


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

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

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.

Deadline to submit written statements to the Senate Judiciary Committee to supplement the record of its April 7, 2006, hearing on the Copyright Office's report [133 pages in PDF] titled "Report on Orphan Works". Sen. Orrin Hatch (R-UT) requested further statements regarding what would constitute a "diligent search".

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. See, notice in the Federal Register, April 6, 2006, Vol. 71, No. 66, at Pages 17410-17433.

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.

Sunday, April 16


Monday, April 17

12:00 NOON - 1:30 PM. The Federal Communications Bar Association's (FCBA) Diversity Committee will host a brown bag lunch. The topic will be "Impact of Broadband on Telecommunications Relay Service (TRS)". The speakers will be Karen Strauss, Ed Bosson (Texas TRS Administrator), Kelby Brick (National Association of the Deaf), Joe Douglas (NECA), Claude Stout (TDI Executive Director). RSVP to Colin Sandy at 202-682-2496 or csandy at neca dot org. Location: Reed Smith, 1301 K Street, NW, Suite 1100- East Tower 11B.

5:00 PM. Deadline to submit comments to the Library of Congress's (LOC) Section 108 Study Group in response to the LOC's notice in the Federal Register regarding, among other topics, expanding the scope of 17 U.S.C. § 108. See, notice in the Federal Register, February 15, 2006, Vol. 71, No. 31, at Pages 7999-8002.

Tuesday, April 18

9:00 AM. The Federal Communications Commission's (FCC) advisory committee named "Independent Panel Reviewing the Impact of Hurricane Katrina on Communications Networks" will meet. See, notice in the Federal Register, April 3, 2006, Vol. 71, No. 63, at Pages 16578-16579. Location: FCC, Commission Meeting Room, Room TW-C305, 445 12th St., SW.

12:30 - 2:00 PM. The DC Bar Association will host a panel discussion titled "Managing and Protecting Digital Data: Part II -- Getting Paid for Content: Legal Questions in Digital Rights Management (DRM) for Online Distribution". The speakers will include Fritz Attaway (Motion Picture Association of America), David Sohn (Center for Democracy & Technology), and Jack Goodman (Wilmer Hale). The price to attend ranges from $10-$30. For more information, call 202-626-3463. See, notice. Location: D.C. Bar Conference Center, 1250 H Street NW, B-1 Level.

6:00 - 8:00 PM. The DC Bar Association's Computer and Telecommunications Law Section will host a reception titled "Meet FCC Commissioner Deborah Taylor Tate". The price to attend ranges from $10-$15. For more information, call 202-626-3463. See, notice. Location: The Westin Embassy Row Hotel, 2100 Massachusetts Ave., NW.

Wednesday, April 19

12:00 NOON - 1:30 PM. The DC Bar Association's Intellectual Property Law Section will host a panel discussion titled "Can I Use It?: Fair Use (Part I) -- ``Traditional´´ Notions of Fair Use of Copyrighted Works". The speakers will include Christine Farley (Washington College of Law) and Arnie Lutzker (Lutzker, Lutzker & Settlemeyer). A second event, on June 14, will address fair use in the context of digital works, computer code, and the anti-circumvention provisions of the DMCA. The price to attend ranges from $20-$40. For more information, call 202-626-3463. See, notice. Location: D.C. Bar Conference Center, 1250 H Street NW, B-1 Level.

3:15 - 5:00 PM. The American Enterprise Institute (AEI) will host a panel discussion titled "Combatting the Diseases of Poverty: Aid Versus Innovation". The speakers will be Barun Mitra (Liberty Institute), Julian Morris (International Policy Network), Roger Bate (AEI), Nicholas Eberstadt (AEI), Maureen Lewis (Center for Global Development), and Vance Serchuk (AEI). See, notice. Location: AEI, 12th Floor, 1150 11th St., NW.

6:00 - 7:30 PM. The Federal Communications Bar Association (FCBA) will host an event titled "What's Next: Mid-Career Planning, Networking, and Marketing Seminar and Reception". The speaker will be Kathleen Sparrough (Davis and Chapman). See, registration form [PDF]. The price to attend ranges from $10 to $40. Registrations and cancellations are due by 5:00 PM on April 14. Location: Hogan & Hartson, 555 13th Street, NW, 13th Floor West.

Day one of a two day meeting of the Department of Labor's (DOL) Bureau of Labor Statistics' (BLS) Business Research Advisory Council (BRAC). The BLS's vaguely worded agenda in its notice in the Federal Register states that the BRAC's Committee on Productivity and Foreign Labor Statistics will meet at 10:00 AM on April 19 to address "new service industries", "international labor comparisons", and "compensation comparisons", including for China and India. See, Federal Register, March 29, 2006, Vol. 71, No. 60, at Pages 15768-15769. Location: Conference Center of the Postal Square Building, 2 Massachusetts Ave., NE.

Thursday, April 20

9:30 AM. The U.S. International Trade Commission (USITC) will hold a hearing on the probable economic effects of the proposed U.S.-Republic of Korea Free Trade Agreement. See, notice in the Federal Register, February 28, 2006, Vol. 71, No. 39, at Pages 10066-10067. The USITC states that if it receives no applications to appear, it will cancel the hearing. For more information, call the USITC at 202 205-2000. Location: USITC, 500 E Street, SW.

10:00 AM. Securities and Exchange Commission's (SEC) Advisory Committee on Smaller Public Companies will hold a public meeting. See, notice in the Federal Register, April 10, 2006, Vol. 71, No. 68, at Page 18122. Location: SEC, Multi-Purpose Room L006, 100 F Street, NE.

12:00 NOON - 1:30 PM. The Federal Communications Bar Association's (FCBA) Young Lawyers Committee and Diversity Committee will host a brown bag lunch. The topic will be "The Role of Mentoring". The speakers will be Parul Desai (Media Access Project), David Don (Comcast), Linda Oliver (Hogan & Hartson), Peter Shields (Wiley Rein & Fielding), and Riley Temple (Halprin Temple). Questions to the panelists may be submitted in advance to Chris Fedeli at 202-828-9874 or cfedeli at crblaw dot com or Cathy Hilke at 202-719-7418 or chilke at wrf dot com. RSVP to Christy Hammond at 202-719-7365 or chammond at wrf dot com. Location: Wiley Rein & Fielding, Conference Center, 1776 K St., NW.

Day one of a two day closed meeting of the Defense Science Board 2006 Summer Study on Information Management for Net-Centric Operations. See, notice in the Federal Register, April 11, 2006, Vol. 71, No. 69, Page 18292. Location: 3601 Wilson Boulevard, 3rd Floor, Arlington, VA.

People and Appointments

4/13. John Giusti will become Deputy Bureau Chief of the Federal Communications Commission's International Bureau. He is currently Commissioner Michael Copps' Acting Legal Advisor for wireless and international issues. In addition, Copps named Scott Deutchman to be his Legal Advisor for competition and universal service issues. Last month Copps announced that he selected Bruce Gottlieb to be his Legal Advisor for wireless and international issues. See, story titled "Copps Announces Staff Changes" in TLJ Daily E-Mail Alert No. 1,332, March 20, 2006. Jessica Rosenworcel is Copps' Senior Legal Advisor, with responsibilities for media issues. See, Copps' release [PDF].

More News

4/13. The People's Republic of China (PRC) announced that its Internet Society of China adopted a statement regarding suppression of free speech on the internet. The PRC wrote in a release that "``We should run our business in a civilized way. We should not produce, disseminate and spread information that harms state security, social stability and information that violates laws and regulations and social morality,´´ says a written proposal issued by the society and its regional branches. It calls for concerted efforts to supervise content, delete ``unhealthy´´ information and oppose acts that undermine ``Internet civilization´´, harm social stability and hamper development of Internet businesses."

4/12. Google CEO Eric Schmidt traveled to PR China in connection with Google's search engine located at, which blocks access to web sites with political and social information censored by the Chinese government. See also, PR China release.

4/12. The Securities and Exchange Commission (SEC) released a document titled "Policy Statement of the Securities and Exchange Commission Concerning Subpoenas to Members of the News Media". The SEC reasserts that it has authority to subpoena "a member of the news media" regarding "verification of published information and to surrounding circumstances relating to the accuracy of published information".

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