|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."
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
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."
Gutierrez (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
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. "
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
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
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
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
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
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
praising the PTPA.
|FCC Adopts Procedures for AWS
4/12. The Federal Communications Commission (FCC)
adopted and released a
Notice [94 pages in PDF] addressing filing requirements, minimum opening bids, upfront
payments and other procedures for
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,
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."
statement [PDF] by Commissioner Deborah
statement [PDF] by Commissioner Jonathan
[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
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
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
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
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
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.
|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
|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
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,
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,
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
notice. Location: AEI, 12th Floor, 1150 11th
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).
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
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'
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 www.google.cn,
which blocks access to web sites with political and social information censored
by the Chinese government. See also, PR China
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
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