7/6. The Federal Communications Commission (FCC) released an agenda [PDF] for its event on July 13, 2006, titled "Open Meeting".

The FCC will consider a Notice of Proposed Rulemaking (NPRM) and Notice of Inquiry (NOI) regarding rules governing medical devices that rely on radiocommunications for critical aspects of their functionality (RM-11271), and will consider the extension of current waivers of the existing rules held by Biotronik, Inc. and DexCom, Inc. (ET Docket Nos. 05-213 and 03-92, respectively).

Second, the FCC will consider Notice of Apparent Liability for Forfeiture (NALF) against 1st Source Information Specialist, Inc., d/b/a LocateCell.com, a databroker, for repeated failure to respond to directives of the FCC's Enforcement Bureau to provide subpoenaed information in connection with the customer proprietary network information (CPNI) investigation. The FCC's agenda provides no proceeding number for this NALF. However, the FCC's underlying CPNI investigation include Docket No. 96-115 and RM-11277.

Third, the FCC will consider a Memorandum Opinion and Order (MOO) regarding the applications of Adelphia Communications Corporation and subsidiaries, debtors-in-possession, Time Warner Inc., Time Warner Cable Inc. and Comcast Communications Corporation for consent to the acquisition by Time Warner Cable Inc. and Comcast Communications Corporation of substantially all of the domestic cable systems owned or managed by Adelphia. This is MB Docket No. 05-192.

Fourth, the FCC will consider a Second Report and Order, First Order on Reconsideration and Second Further NPRM regarding "digital audio broadcasting". The FCC's agenda states that the title of this is "Digital Audio Broadcasting Systems and Their Impact on the Terrestrial Radio Broadcast Service". The FCC's agenda provides no other details, and no docket number.

The FCC issued a Further NPRM and NOI back on April 15, 2004. See, story titled "FCC Announces FNPRM and NOI Regarding Digital Audio Broadcasting" in TLJ Daily E-Mail Alert No. 878, April 16, 2004. This FNPRM/NOI is FCC 04-99 in MB Docket No. 99-325.

The FCC adopted a First Report and Order [27 pages in PDF] on October 10, 2002, in the proceeding titled "In the Matter of Digital Audio Broadcasting Systems And Their Impact on the Terrestrial Radio Broadcast Service". This report and order selects in-band, on-channel (IBOC) as the technology to be used by AM and FM broadcasters for the introduction of digital broadcasting.

Finally, the FCC will consider a Further NRPM regarding the compensation of telecommunications relay providers from the Interstate TRS Fund. This is CG Docket No. 03-123.

This event is scheduled for 9:30 AM on Thursday, July 13, 2006 in the FCC's Commission Meeting Room, Room TW-C305, 445 12th Street, SW. The event will be webcast by the FCC. The FCC does not always consider all of the items on its published agenda. The FCC sometimes adds items to the agenda without providing the "one week" notice required 5 U.S.C. § 552b. The FCC does not always start its monthly meetings at the scheduled time. The FCC usually does not release at its meetings copies of the items that it adopts at its meetings.

7/5. The Government Accountability Office (GAO) wrote a letter [21 pages in PDF] to Congressional committees titled "President's Justification of the High Performance Computer Control Threshold Does Not Fully Address National Defense Authorization Act of 1998 Requirements".

The Department of Commerce's (DOC) Bureau of Industry and Security (BIS) regulates and licenses the export of high performance computers, and related products and activities, pursuant to the Export Administration Act of 1979 (EAA). The EAA expired in 2001, and is no longer a statute in effect. Nevertheless, the BIS continues to promulgate and enforce regulations that implement the EAA.

The GAO report notes that the National Defense Authorization Act of 1998 (Public Law No. 105-85) "requires that the President provide a justification to Congress for changing the control threshold for exports of high performance computers to certain sensitive countries."

President Bush revised the control thresholds in February of 2006. He wrote a letter to Congressional leaders on February 6, 2006, in which he stated that "In accordance with the provisions of section 1211(d) of the National Defense Authorization Act for Fiscal Year 1998 (Public Law 105 85), I hereby notify you of my decision to establish a new level for the notification procedure for digital computers set forth in section 1211(a) of Public Law 105 85. The new level will be 0.75 WT (Weighted TeraFLOPS)."

Also, the BIS published its updated high performance computer (HPC) rules on April 24, 2006. See, notice in the Federal Register, April 24, 2006, Vol. 71, No. 78, at Pages 20876-20894.

Neither the BIS nor the Executive Office of the President has published the text of the President's February 2006 report in their web sites. A BIS representative declined to provide a copy to TLJ.

The GAO report states that "The President's February 2006 report did not fully address the three requirements of the National Defense Authorization Act of 1998. Therefore, the report did not present the full implications of the threshold change to Congress."

It elaborates that "Although the President’s report indicated that foreign computing capacity below the new control level is currently widely available, agency officials (1) did not adequately document how they established the new export control threshold at 0.75 WT on the basis of their assessment of worldwide availability and (2) could not document that they verified key information used in their decision."

The GAO report also finds that the President's report "did not adequately assess the potential military uses of computers with performance capabilities at the new threshold (0.75 WT)." For example, it states that the "report could have disclosed, but did not, that U.S. government officials had identified 15 high performance computing platforms15 that would no longer need to be reviewed for a license at the new control threshold."

The GAO report also finds that "Since the President’s report did not adequately assess the potential military uses of computers at the proposed new threshold of 0.75 WT, it did not assess the impact that militarily significant uses of those computers would have on U.S. national security."

6/30. The U.S. Court of Appeals (DCCir) issued is opinion [28 pages in PDF] in In Re Core Communications, a case regarding the intercarrier compensation rules for telecommunications traffic bound for internet service providers (ISPs) contained in the Federal Communications Commission's (FCC) 2001 ISP remand order.

The FCC granted CLEC Core Communications' petition to forbear from applying some of those rules, but denied its petition to forbear from applying others. Core Communications then filed a petition for review with the Court of Appeals challenging those parts of the FCC's order denying forbearance. ILEC BellSouth filed a petition for review challenging those parts of the FCC's order that granted forbearance.

47 U.S.C. § 251(b)(5), which was enacted as part of the Telecommunications Act of 1996, provides that local phone companies must compensate each other for handling each other's local calls. It requires that they "establish reciprocal compensation arrangements for the transport and termination of telecommunications."

The FCC wrote implementing rules in 1996 that provided that § 251(b)(5) applies "only to traffic that originates and terminates within a local area." The FCC then concluded in a 1999 declaratory ruling (DR) that dial-up calls to an ISP for connection to the internet constitute interstate traffic, subject to FCC jurisdiction under § 201 of the Act. However, the U.S. Court of Appeals (DCCir) vacated this DR for inadequate explanation in its March 27, 2000, opinion in Bell Atlantic Telephone Cos. v. FCC, 206 F.3d 1.

Then, in 2001, the FCC adopted its ISP remand order, concluding that calls delivered to ISPs are not subject to the mandatory reciprocal compensation obligations of § 251(b)(5), but imposing an interim intercarrier compensation regime for ISP bound traffic. Four interim provisions regarding rates caps, the mirroring rule, growth caps, and the new markets rule, are the subject of Core Communications' petition for forbearance, and the present petitions for review.

See also, story titled "Reciprocal Compensation" in TLJ Daily E-Mail Alert 170, April 20, 2001.

The Court of Appeals denied all petitions for review.

This case is In Re Core Communications, petitioner, Level3 Communications LLC, et al., intervenors, U.S. Court of Appeals for the District of Columbia, App. Ct. Nos. 04-1368, 04-1423, and 04-1424, petitions for review of a final order of the FCC. Judge Garland wrote the opinion of the Court of Appeals, in which Judges Sentelle and Tatel joined.

The House will not meet on Monday, July 3, through Friday, July 7. It will next meet on Monday, July 10, at 2:00 PM. See, Republican Whip Notice.

The Senate will not meet on Monday, July 3, through Friday, July 7. It will next meet on Monday, July 10, at 2:00 PM, when it will begin consideration of HR 5441, the homeland security appropriations bill. See, 2006 Senate calendar.

Deadline to submit comments to the National Telecommunications and Information Administration (NTIA) in response to its Notice of Inquiry (NOI) regarding management of the internet domain name and addressing system. See, notice in the Federal Register, Federal Register, May 26, 2006, Vol. 71, No. 102, at Pages 30388-30389.

Deadline to submit comments to the National Institute of Standards and Technology (NIST) regarding its Draft Special Publication 800-97 [huge PDF] titled "Guide to IEEE 802.11i: Robust Security Networks".

The House will return from its Independence Day recess at 2:00 PM. See, Majority Whip's calendar and Republican Whip Notice.

The Senate will return from its Independence Day recess at 2:00 PM. It will begin consideration of HR 5441, the homeland security appropriations bill.

8:30 AM - 5:00 PM. The Intellectual Property Owners Association (IPO) will host a day long conference titled "Demystifying §337 Investigations at the ITC". For more information, contact Clara Stanfield at cstanfield at ipo dot org or 202- 466-2396. See, notice and brochure [PDF]. Location: Ronald Reagan Building & International Trade Center.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Action Gaming, Inc. v. Alliance Gaming Corp., a patent infringement case involving computer gambling technology. This is App. Ct. No. 2005-1287, an appeal from the U.S. District Court (DNev). See, December 8, 2004 release. Location: Courtroom 201, 717 Madison Place, NW.

Deadline to submit comments to the National Telecommunications and Information Administration (NTIA) in response to its notice of inquiry (NOI) regarding "implementation of the Spectrum Sharing Innovation Test-Bed (Test-Bed) where Federal and non-Federal users can study the feasibility of increasing the efficient use of the spectrum". See, notice in the Federal Register, June 8, 2006, Vol. 71, No. 110, at Pages 33282-33284.

Deadline to submit comments to the Antitrust Modernization Commission (AMC) regarding any topic related to the AMC's study. See, notice in the Federal Register, June 15, 2006, Vol. 71, No. 115, at Pages 34590-34591.

Deadline to submit comments to the Federal Trade Commission (FTC) regarding the proposed consent agreement with Take-Two Interactive Software, Inc. and Rockstar Games, Inc. This pertains to the alleged deceptive representations in advertising and on product packaging concerning the content in the video game named "Grand Theft Auto: San Andreas". See, notice in the Federal Register, June 15, 2006, Vol. 71, No. 115, at Pages 34620-34621.

10:00 AM. The House Financial Services Committee will hold a hearing titled "The Terror Finance Tracking Program". Location: Room 2128, Rayburn Building.

12:00 NOON - 2:00 PM. The DC Bar Association will host a panel discussion titled "The Supreme Court: The View from the Press Gallery". The speakers will include Joan Biskupic (USA Today), Charles Lane (Washington Post), Tony Mauro (Legal Times and American Lawyer Media), David Savage (Los Angeles Times), and Stuart Taylor (National Journal and Newsweek). The price to attend ranges from $15-$35. For more information, call 202-626-3463. See, notice. Location: Arnold & Porter, 555 12th Street, NW.

2:15 PM. The Senate Judiciary Committee (SJC) may hold a hearing on judicial nominations. Press contact: Courtney Boone at 202-224-5225. See, notice. Location: Room 226, Dirksen Building.

POSTPONED. 2:30 PM. The Senate Homeland Security and Governmental Affairs Committee's Subcommittee on Federal Financial Management, Government Information, and International Security will hold a hearing titled "Cyber Security: Recovery and Reconstitution of Critical Networks". See, notice. Location: Room 342, Dirksen Building.

Deadline to submit initial comments to the Copyright Office regarding its proposal to amend its rules governing the submission of royalty fees to the Copyright Office to require such payments to be made by electronic funds transfer. See, notice in the Federal Register, April 27, 2006, Vol. 71, No. 81, at Pages 24829-24831.

10:00 AM. The Senate Finance Committee will hold a hearing on S 3495, a bill to authorize the extension of nondiscriminatory treatment (normal trade relations treatment) to the products of Vietnam. See, notice. Location: Room 215, Dirksen Building.

10:30 AM. The House Ways and Means Committee will hold a hearing titled "Implementation of the United States-Peru Trade Promotion Agreement". See, notice. Press contact: 202- 225-1721. Location: Room 1100, Longworth Building.

10:30 AM. The Senate Banking Committee will hold a hearing on several pending nominations, including that of Frederic Mishkin to be a member of the Board of Governors of the Federal Reserve System. See, notice. Location: Room 538, Dirksen Building.

12:15 PM. The Federal Communications Bar Association's (FCBA) Mass Media Practice Committee will host a brown bag lunch. Andrew Cotlar (Associate General Counsel of the Association of Public TV Stations) will speak on public broadcasting in the US. For more information, contact Robert Rini at rrini at rinicoran dot com or 202-463-4301. Dial-In Information: 1-866-443-4185, participant code #31665. Location: Sheppard Mullin, 1300 I Street, NW, 11th Floor.

12:30 PM. Sen. Arlen Specter (R-PA) will give a speech. Location: National Press Club, 529 14th St. NW, 13th Floor.

The calendar for the U.S. Court of Appeals (FedCir) states that it will consider, on the briefs, Eolas Technologies v. Microsoft. This is App. Ct. No. 2006-1238.

9:30 AM. The Federal Communications Commission (FCC) will hold a meeting. See, agenda [PDF]. The event will be webcast by the FCC. Location: FCC, 445 12th Street, SW, Room TW-C05 (Commission Meeting Room).

9:30 AM - 5:30 PM. The Antitrust Modernization Commission (AMC) will hold a meeting to deliberate on possible recommendations regarding the antitrust laws to Congress and the President. The meeting is open to the public, but registration is required. See, notice in the Federal Register, June 23, 2006, Vol. 71, No. 121, at Page 36059. Location: Morgan Lewis, main conference room, 1111 Pennsylvania Ave., NW.

10:00 AM. The Senate Finance Committee will hold a hearing on the nomination of Eric Solomon to be Assistant Secretary of the Treasury for Tax Policy. Location: Room 215, Dirksen Building.

10:30 AM. The House Ways and Means Committee's Subcommittee on Select Revenue Measures will hold a hearing titled "Issues Relating to the Patenting of Tax Advice". See, notice. Location: Room B-318, Rayburn Building.

12:00 NOON - 2:00 PM. The Alliance for Public Technology (APT) will host a brown bag lunch titled "Preemption of State Wireless Regulation: Where Do Consumers Fit In?". The speakers will be Brian Fontes (Cingular) and Dane Snowden (CTIA). RSVP to apt at apt dot org or 202-263-2970. Location: 919 18th St., NW, 10th Floor Conference Room.

2:30 PM. The Senate Commerce Committee (SCC) will hold a hearing titled "Unmanned Aerial Systems in Alaska: A Framework for the Nation". Sen. Ted Stevens (R-AK) will preside. See, notice. Location: Room 562, Dirksen Building.

TIME? The Board of Directors of the American Intellectual Property Law Association (AIPLA) will meet. Location: AIPLA, Headquarters Board Room, Arlington, VA.

6:00 - 9:15 PM. The DC Bar Association will host a continuing legal education (CLE) seminar titled & "Antitrust Investigations: Tactical and Ethical Issues". The speakers will include Ray Hartwell (Hunton & Williams), Kathryn Fenton (Jones Day), Donald Klawiter (Morgan Lewis & Bockius), Ann Marie O’Brien (Antitrust Division). 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.

5:00 PM. Deadline to submit comments to the Office of the U.S. Trade Representative (USTR) regarding its special provincial review (SPR) of intellectual property rights (IPR) protection in Peoples Republic of China (PRC). See, notice in the Federal Register, June 16, 2006, Vol. 71, No. 116, at Pages 34969-34970.

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