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November 3, 2006, Alert No. 1,482.
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FCC Declares that BPL is an Information Service

11/3. The Federal Communications Commission (FCC) adopted, but did not release, a Memorandum Opinion and Order (MOO) that declares that broadband over power line (BPL) enabled internet access service is an information service.

The FCC adopted this MOO in response to the Petition for Declaratory Ruling [16 pages in PDF] filed with the FCC on December 23, 2005, by the United Power Line Council (UPLC).

In 2002 the FCC ruled that cable modem service is an information service. See, Declaratory Ruling and Notice of Proposed Rulemaking [75 pages in PDF]. In 2005 the FCC ruled that DSL internet access service is an information services. See, story titled "FCC Classifies DSL as Information Service" in TLJ Daily E-Mail Alert No. 1,190, August 8, 2005. The Supreme Court upheld the classification as to cable modem service in its opinion [59 pages in PDF] in NCTA v. Brand X. See, story titled "Supreme Court Rules in Brand X Case" in TLJ Daily E-Mail Alert No. 1,163, June 28, 2005.

The FCC issued a short release [1 page in PDF] describing this MOO, and four of the Commissioners made brief oral statements and released short written statements. Commissioner Robert McDowell did not participate in approving this MOO.

The FCC release states that this MOO "finds that the transmission component underlying BPL-enabled Internet access service is ``telecommunications,īī and that the provision of this telecommunications transmission component as part of a functionally integrated, finished BPL-enabled Internet access service offering is an information service. This approach is consistent with the framework that the Commission has established for cable modem service and wireline broadband Internet access service, furthering the Commissionís goal of regulating like services in a similar manner."

FCC Chairman Kevin Martin wrote in his statement [PDF] that this decision provides regulatory neutrality, and "the regulatory certainty necessary to foster competition between different broadband platform providers".

Commissioner Deborah Tate wrote in her statement [PDF] that with this decision the FCC is "applying only a light regulatory touch".

Commissioner Jonathan Adelstein wrote in his statement [PDF] that this MOO fails to address consumer privacy, "Truth-in-Billing rules, access for persons with disabilities, and the preservation and advancement of universal service".

He also referenced state regulation. He said that "I appreciate the willingness of Chairman Martin and my colleagues to work with me to ensure that this Order does not unnecessarily limit statesí ability to address important issues related to the oversight of BPL."

Commissioner Michael Copps predicted in his statement [PDF] that "for the foreseeable future, new broadband services are destined to be classified as Title I services".

But, he said that there exists an "indeterminate Title I regulatory limbo". He elaborated that "Just relegating something to Title I doesn't provide the kind of certainty that either business or consumers are entitled to"

He wrote that "we are nowhere near finished defining what being an information service actually means. Yes, we have clarified some questions about E911 and CALEA and decided (unwisely, in my view) that broadband providers need not contribute to universal service." (Parentheses in original.)

He enumerated some of the issues that remain in limbo for BPL service providers, including privacy, disability access, pole attachments, or "cross-subsidization".

Justice Scalia's dissent in the Brand X case may be relevant to FCC's ongoing consideration of how to classify services, and how to regulate information services. He wrote in 2005 that "what the Commission hath given, the Commission may well take away".

The FCC's just adopted decision relieves BPL providers of the common carrier regulatory regime set forth in Title II. However, the FCC asserts ancillary Title I authority to regulate information services, and has done so to reapply components of the old telecommunications regulatory regime, or to apply new regulation for the first time to previously unregulated services.

Moreover, exercise of ancillary authority, unlike exercise of Title II authority, is hardly constrained by statute, and is difficult to challenge in court.

Reaction. The UPLC praised the FCC's MOO in a release.

Walter McCormick, head of the USTelecom, stated in a release that "Today's determination by the FCC is a very good step for consumers. This ruling acknowledges that regardless of how the service is delivered, broadband providers should all have the same opportunities in today's marketplace. It also shows that in an already highly competitive market, there is no need for outdated and unnecessary regulations. This is clearly the right decision to ensure a vibrant market for high-speed Internet service."

This item is FCC 06-165 in WC Docket No. 06-10. This proceeding is titled "United Power Line Councilís Petition for Declaratory Ruling Regarding the Classification of Broadband over Power Line Internet Access Service as an Information Service".

Adelstein Comments on Privacy

11/3. Federal Communications Commission (FCC) Commissioner Jonathan Adelstein commented upon data privacy in his statement regarding the broadband over power line (BPL) Memorandum Opinion and Order. His comments applied to a wide range of communications services other those over power lines.

Jonathan AdelsteinAdelstein (at right) wrote that "the widespread and unauthorized proliferation of consumer telephone call records has been a sharp reminder that this Commission has an obligation to ensure that consumers' privacy expectations are met. But that privacy concern is not limited to the narrowband world. Consumers don't care whether their sensitive information is transferred by copper wire, fiber optic cable, or over a power line connection. They merely want us to implement and enforce the legal protections afforded by Congress."

He added that "We should act immediately to make sure that we have adequate safeguards in place to protect the consumers' sensitive information."

The FCC has an open rule making proceeding. On February 10, 2006, the FCC adopted a Notice of Proposed Rulemaking (NPRM). This is FCC 06-10 in Docket No. 96-115 and RM-11277. 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.

However, while Adelstein referenced "the widespread and unauthorized proliferation of consumer telephone call records", which involves pretexting, such as that involved in the HP scandal, he made no reference to the impact of NSA and law enforcement activities on consumer privacy.

More FCC News

11/3. The Federal Communications Commission (FCC) adopted, but did not release, a Report and Order (R&O) in its proceeding titled "Revision of Procedures Governing Amendments to FM Table of Allotments and Changes of Community of License in the Radio Broadcast Services". This R&O is FCC 06-163 in MB Docket No. 05-210. The FCC issued a short news release [2 pages in PDF] that describes this item.

11/3. The Federal Communications Commission (FCC) adopted, but did not release, Notice of Proposed Rulemaking (NPRM) in its proceeding titled "In the Matter of the Effects of Communications Towers on Migratory Birds". This NPRM is FCC 03-187 in WT Docket No. 03-187. The FCC issued a short news release [2 pages in PDF] that describes this item.

FTC Releases Report on Noerr Pennington Doctrine

11/2. The Federal Trade Commission (FTC) released a report [41 pages in PDF] titled "Enforcement Perspectives on the Noerr-Pennington Doctrine". This is an doctrine that particularly affects antitrust liability. It is applied or asserted in some patent related antitrust matters.

The Noerr-Pennington doctrine is based on the Supreme Court's opinions in Eastern R.R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127 (1961) and United Mine Workers v. Pennington, 381 U.S. 657 (1965).

This doctrine allows businesses to combine and lobby to influence the legislative, executive, or judicial branches of government or administrative agencies without antitrust liability, because the First Amendmentís right of petition protects such activities.

Maureen Oldhausen, Director of the FTC's OPP stated in a release that "When properly applied, the Noerr doctrine serves important purposes in our representative democracy ... Unnecessarily broad interpretations of the doctrine, however, can protect abuses of government processes and impose significant costs on consumers."

The FTC report states that "A fundamental goal of the Commissionís antitrust enforcement program is to prevent parties, acting either unilaterally or in concert, from improperly acquiring and exercising market power to the detriment of consumers. One of the most effective ways for parties to acquire or maintain market power is through the abuse of government processes. The cost to the party engaging in such abuse typically is minimal, while the anticompetitive effects resulting from such abuse often are significant and durable. Thus, the reach of the antitrust laws to conduct that abuses government processes for anticompetitive ends is of particular importance to the Commissionís enforcement program."

The report addresses "three types of conduct that can use government processes to seek anticompetitive rewards: 1) requests for ministerial government acts; 2) misrepresentations to a government decision maker in a non-political context; and 3) repetitive requests for government action filed regardless of merit solely to use the government process to suppress competition."

The second of these three includes making misleading statements to the U.S. Patent and Trademark Office (USPTO) to obtain unwarranted patent protection.

It also includes patent ambush practices. For example, a company may misrepresent to a regulatory authority that certain information is non-proprietary and in the public domain, while at the same time pursuing patents, in order to induce the regulator to adopt regulations to require use of the some to be patented technology. The FTC addressed this practice in it proceeding titled "In the Matter of Union Oil Company of California".

The report recommends that the FTC should "Clarify that conduct protected by Noerr does not extend to filings, outside of the political arena, that seek no more than a ministerial government act."

Second, the report recommends that the FTC should "Clarify that conduct protected by Noerr does not extend to misrepresentations, outside of the political arena, that meet the standards set forth in the Commissionís Unocal decision."

See also, the FTC's July 2004 opinion [56 pages in PDF] in its Unocal proceeding, and story titled "FTC Rules Noerr-Pennington Doctrine Does Not Block Antitrust Action for False Representations Regarding Patents During Standards Setting Process" in TLJ Daily E-Mail Alert No. 933, July 8, 2004.

Finally, the report recommends that the FTC should "Clarify that conduct protected by Noerr does not extend to patterns of repetitive petitioning, outside of the political arena, filed without regard to merit that employ government processes, rather than the outcome of those processes, to harm competitors in an attempt to suppress competition."

The report was written by staff of the FTC's Office of Policy Planning (OPP) and Bureau of Competition (BOC).

FCC Again Delays Approval of AT&T BellSouth Merger

11/3. The Federal Communications Commission (FCC) again postponed consideration of its order approving the merger of AT&T and BellSouth. The FCC had previously announced that this item was on the agenda for its event titled "Open Meeting", scheduled for 9:30 AM on Friday, November 3, 2006. See, FCC's notice [PDF] of deletion of agenda item.

Washington Tech Calendar
New items are highlighted in red.
Friday, November 3

The House will not meet. It may return from it elections recess on Monday, November 13, 2006. The adjournment resolution, HConRes 483, provides for returning on Thursday, November 9, at 2:00 PM.

The Senate will not meet. See, HConRes 483.

LOCATION CHANGE. 9:00 AM - 4:00 PM. The Federal Communications Commission's (FCC) Consumer Advisory Committee will meet. See, notice in the Federal Register, October 18, 2006, Vol. 71, No. 201, at Pages 61470-61471, and notice in the Federal Register, November 1, 2006, Vol. 71, No. 211, at Pages 64278-64279. Location: Verizon Communications, 1320 North Courthouse Road, Arlington, VA.

9:30 AM. The Federal Communications Commission (FCC) may 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 - 11:30 AM. The Department of State's (DOS) International Telecommunication Advisory Committee (ITAC) will meet to discuss the upcoming meeting of the ITU Radiocommunication Sector's Conference Preparatory Meeting (CPM) for the 2007 World Radiocommunication Conference, to be held on February 19 through March 2, 2007 in Geneva, Switzerland. See, notice in the Federal Register, October 10, 2006, Vol. 71, No. 195, at Page 59580. Location: Boeing Company, 1200 Wilson Blvd., Arlington, VA.

EXTENDED TO DECEMBER 4. Deadline to submit comments to the Department of Commerce's (DOC) Bureau of Industry and Security (BIS) regarding its proposed changes to its Export Administration Regulations (EAR) pertaining to exports and reexports of dual-use items to the People's Republic of China (PRC). Dual use items include certain encryption products, information security products, fiber optic products, computers, and software. See, notice in the Federal Register, July 6, 2006, Vol. 71, No. 129, at Pages 38313-38321. See, notice of extension in the Federal Register, October 19, 2006, Vol. 71, No. 202, at Page 61692.

Monday, November 6

Day one of a four day a partially closed conference hosted by the Federal Trade Commission (FTC) titled "Protecting Consumers in the Next Tech-ade". The topics to be addressed include "The Changing Nature of Consumer Products, Mobile Devices and Marketing, Data Security and Privacy, Convergence, The Evolving Internet, Payment Systems and Trends, Advertising and Marketing Trends, and Demographic Shifts". The November 9 session is closed to the public. See, notice and conference web site. Location: George Washington University, Lisner Auditorium, 730 21st Street, NW.

Tuesday, November 7

Election Day.

2:00 PM. The U.S. Court of Appeals (FedCir) will hear oral argument in Plumtree Software v. Datamize, App. Ct. No. 06-1017, an appeal from the U.S. District Court (NDCal). Location: Courtroom 201, 717 Madison Place, NW.

2:00 PM. The U.S. Court of Appeals (FedCir) will hear oral argument in Thompson v. Microsoft, App. Ct. No. 06-1073. Location: Courtroom 203, 717 Madison Place, NW.

2:00 PM. The U.S. Court of Appeals (FedCir) will hear oral argument in Missiontrek v. Onfolio, App. Ct. No. 06-1271, an appeal from the Trademark Trial and Appeal Board (TTAB). Location: Courtroom 203, 717 Madison Place, NW.

Day two of a four day a partially closed conference hosted by the Federal Trade Commission (FTC) titled "Protecting Consumers in the Next Tech-ade". The topics to be addressed include "The Changing Nature of Consumer Products, Mobile Devices and Marketing, Data Security and Privacy, Convergence, The Evolving Internet, Payment Systems and Trends, Advertising and Marketing Trends, and Demographic Shifts". The November 9 session is closed to the public. See, notice and conference web site. Location: George Washington University, Lisner Auditorium, 730 21st Street, NW.

Wednesday, November 8

9:00 AM. The Department of Commerce's (DOC) Bureau of Industry and Security's (BIS) Information Systems Technical Advisory Committee will meet. The agenda includes "Graphics Processors Technology", "Frequency Standards", "Telephony Signaling", "Phase Noise", and "Frequency Synthesizer Assemblies". See, notice in the Federal Register, October 25, 2006, Vol. 71, No. 206, at Page 62416. Location: Room 3884, Hoover Building, 14th Street between Constitution and Pennsylvania Avenues, NW.

12:15 PM. The Federal Communications Bar Association's (FCBA) Diversity Committee and Young Lawyers Committee will host a panel discussion titled "The Role of Mentoring in the Legal Profession". The speakers may include Kyle Dixon (Wilmer Hale), Marvin Ammori (Georgetown University Law Center), Judy Harris (ReedSmith) and James Sandman (Arnold & Porter). RSVP by November 3 to Colin Sandy at csandy at neca.org or LadyStacie Rimes at 202-682-5995. Location: Sidley Austin, , 6th Floor, 1501 K Street, NW.

Day three of a four day a partially closed conference hosted by the Federal Trade Commission (FTC) titled "Protecting Consumers in the Next Tech-ade". The topics to be addressed include "The Changing Nature of Consumer Products, Mobile Devices and Marketing, Data Security and Privacy, Convergence, The Evolving Internet, Payment Systems and Trends, Advertising and Marketing Trends, and Demographic Shifts". The November 9 session is closed to the public. See, notice and conference web site. Location: George Washington University, Lisner Auditorium, 730 21st Street, NW.

Deadline to submit comments to the Office of the U.S. States Trade Representative's (USTR) Trade Policy Staff Committee (TPSC) regarding barriers to U.S. exports of goods, services and overseas direct investment for inclusion in the USTR's annual report titled "National Trade Estimate Report on Foreign Trade Barriers", or "NTE". See, notice in the Federal Register, August 14, 2006, Vol., No. 156, at Pages 46525-46527.

Deadline to submit reply comments to the Federal Communications Commission's (FCC) Federal-State Joint Board on Universal Service in response to the FCC's public notice [PDF] requesting comments regarding the use of reverse auctions to determine high cost universal service funding to eligible telecommunications carriers. This proceeding is WC Docket No. 05-337 and CC Docket No. 96-45. See, notice in the Federal Register, August 25, 2006, Vol. 71, No. 165, at Pages 50420-50421.

Thursday, November 9

The House and Senate may meet at 2:00 PM. See, HConRes 483.

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).

6:00 - 8:15 PM. The DC Bar Association will host a continuing legal education (CLE) seminar titled "Managing E-Discovery Requests Under the New 2006 Federal Rules Amendments". The speaker will be Conrad Jacoby. The price to attend ranges from $80 to $135. For more information, call 202-626-3488. See, notice. Location: D.C. Bar Conference Center, 1250 H Street NW, B-1 Level.

Day four of a four day a partially closed conference hosted by the Federal Trade Commission (FTC) titled "Protecting Consumers in the Next Tech-ade". The topics to be addressed include "The Changing Nature of Consumer Products, Mobile Devices and Marketing, Data Security and Privacy, Convergence, The Evolving Internet, Payment Systems and Trends, Advertising and Marketing Trends, and Demographic Shifts". The November 9 session is closed to the public. See, notice and conference web site. Location: George Washington University, Lisner Auditorium, 730 21st Street, NW.

Friday, November 10

The Federal Communications Commission (FCC) and other federal offices will be closed. See, Office of Personnel Management's (OPM) list of federal holidays.

Deadline to submit comments to the Federal Trade Commission (FTC) regarding its proposed consent agreements with Information and Real Estate Services, LLC, and other real estate businesses. See, story titled "FTC Charges Real Estate Groups that Limited Publication of Listings on Certain Web Sites" in TLJ Daily E-Mail Alert No. 1,469, October 16, 2006, and notice in the Federal Register, October 18, 2006, Vol. 71, No. 201, at Pages 61474-61478.

Saturday, November 11

Veterans Day.

People and Appointments

11/3. The Department of Commerce announced the membership of its Commerce Spectrum Advisory Committee. It will report to John Kneuer, the acting head of the National Telecommunications and Information Administration (NTIA). The members are:

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