2/5. This article speculates on the hypothetical prospects for Congressional approval of a hard network neutrality mandate, based upon roll call votes in the 109th Congress, and turnover from the 109th to the 110th Congress. This article primarily examines the House Commerce Committee (HCC) and the full House, with less discussion of the Senate Commerce Committee (SCC) and the full Senate.

This article argues that, absent some further change in circumstances, it is unlikely that a hard network neutrality mandate, such as those voted upon in the 109th Congress, and the recently introduced S 215, the "Internet Freedom Preservation Act", could be approved by either the HCC or by the House, despite the change of party control and new members. The votes for a mandate are still lacking.

For a summary of S 215, see related story in this issue titled "Summary of the Dorgan Snowe Network Neutrality Bill".

In the 109th Congress, House Republicans voted overwhelmingly against network neutrality on roll call votes. On the floor vote on June 8, 2006, 95% of those who voted (211 out of 222) voted against. On the HCC vote on April 26, 2006, 97% of those who voted (29 out of 30) voted against.

In the 109th Congress, House Democrats voted for network neutrality, but not overwhelmingly. On the floor vote, 71% of those who voted (140 out of 198) voted for network neutrality. On the HCC vote, 81% (21 out of 26) voted for network neutrality.

With almost all Republicans, and a significant minority of Democrats, opposing network neutrality, the votes were lopsided -- 152-269 in the House, and 22-34 in the HCC. It would take a large turnover in the House, or a further change of circumstances that would cause returning members to shift their positions, to enable a network neutrality mandate to be adopted. But, the turnover was not large enough. See, Table 4, titled "Turnover in the House: 109th - 110th Congress", in the right column.

Moreover, of the eight new Democrats appointed to the HCC, three voted against network neutrality and another is a new member for whom there is reason to expect opposition to network neutrality (NN). See, Table 5, titled "Turnover in the House: 109th - 110th Congress", in the right column.

over, there has been no change of circumstances.

Full House Consideration in 109th Congress. The full House approved HR 5252 (109th Congress), the "Communications Opportunity, Promotion, and Enhancement Act of 2006" or "COPE Act" on June 8, 2006. The vote on final approval was 321-101. Republicans voted 215-8 for the bill. Democrats voted 106-92. See, Roll Call No. 241.

However, for the purposes of analyzing support for a network neutrality (NN) mandate, the key vote was on the NN amendment [7 pages in PDF] offered by Rep. Edward Markey (D-MA). It failed on a roll call vote of 152-269. Republicans voted 11-211. Democrats voted 140-58. See, Roll Call No. 239.

The House bill did include limited language related to NN. It provided that the Federal Communications Commission (FCC) is authorized to enforce its August 2005 policy statement [3 pages in PDF] regarding NN through case by case adjudicatory proceedings. However, it lacked the broader NN language of the Markey amendment, and the Clayton Act based NN language of HR 5417, the "Internet Freedom and Nondiscrimination Act of 2006", which the House Judiciary Committee (HJC) approved on May 25, 2006.

There was no floor vote on the HJC proposal because the House Rules Committee did not permit this bill to be considered by the full House, and did not allow this bill to be offered as an amendment to HR 5252 during floor debate.

The House also approved an amendment offered by Rep. Lamar Smith (R-TX) that provided that "Nothing in this section shall be construed to modify, impair, or supercede the applicability of the antitrust laws or the jurisdiction of the district courts of the United States to hear claims arising under the antitrust laws."

See also, story titled "House Approves COPE Act, Without Network Neutrality Amendment" in TLJ Daily E-Mail Alert No. 1,388, June 9, 2006. The Senate took no action on this bill, and it lapsed at the end of the 109th Congress.

House Commerce Committee Votes. The House Commerce Committee (HCC), which has jurisdiction over NN legislation, unless it is in the nature of an amendment to antitrust law, approved an earlier version of the House communications reform bill on April 26, 2006.

However, there was first a markup by the HCC's Subcommittee on Telecommunications and the Internet (STI) on April 5, 2006.

Rep. Ed Markey (D-MA), Rep. Rick Boucher (D-VA), Rep. Anna Eshoo (D-CA), and Rep. Jay Inslee (D-WA) offered a NN amendment at this markup. It failed on a roll call vote of 8-23. These four were joined only by Rep. Heather Wilson (R-NM), Rep. Mike Doyle (D-PA), Rep. Frank Pallone (D-NJ), and Rep. John Dingell (D-MI). For the complete roll call vote, see Table 5, at right. For summary data, see Table 2, below.

See also, stories titled "House Subcommittee Approves COPE Act", "House Subcommittee Rejects Network Neutrality Amendment", and "Amendment by Amendment Summary of Subcommittee Mark Up of COPE Act" in TLJ Daily E-Mail Alert No. 1,344, April 6, 2006.

Reps. Markey, Boucher, Eshoo, and Inslee again offered a network neutrality amendment at the full committee markup on April 26, 2006. It failed on a roll call vote of 22-34. See, Table 3 below for summary data, and Table 5, at right, for the complete roll call.

See, story titled "House Commerce Committee Approves COPE Act" in TLJ Daily E-Mail Alert No. 1,359, April 27, 2006, and longer story titled "Amendment by Amendment Summary of Full Committee Mark Up of COPE Act" in TLJ Daily E-Mail Alert No. 1,360, April 28, 2006.

All of the Republicans on the STI and full committee opposed the NN amendments, except Rep. Wilson. There was a core of five Democrats who opposed the NN amendments, Rep. Charlie Gonzalez (D-TX), Rep. Gene Green (R-TX), Rep. Bobby Rush (D-IL), Rep. Ed Towns (D-NY), Rep. Al Wynn (D-MD). Rep. Gonzalez's enthusiastic opposition drove a few NN proponents to distraction. Two others voted against NN in subcommittee, but for it in full committee -- Rep. Eliot Engel (D-NY) and Rep. Bart Stupak (D-MI). The rest of the Democrats supported NN, including Rep. John Dingell (D-MI), the then ranking Democrat on the full committee.

House Turnover. 54 new members were elected in November of 2006. A few of these 54 previously served in the House, and are back again.

The lopsided vote of 152-269 on Rep. Markey's amendment suggests that if the same proposal were brought to a vote in the 110th Congress, it would fail. Hypothetically, if returning members voted the same way that they did in the 109th Congress, and all 54 new members represented new votes for NN, this would produce an outcome of 206-215 -- another rejection. There were another 14 non-votes (members who did not vote and seats that were vacant at the time). If all of these were votes for NN, this would produce an outcome of 220-215 -- a narrow approval. But, these are unrealistic assumptions.

See, Table 4, lists all 54 new members, as well the former members whom they replaced, and how the former members voted on NN.

First, as Table 4 shows, nine new members are Democrats who replaced Democrats who voted for NN. These cannot be considered as gains for the NN camp. Similarly, two new members are Democrats who replaced Republicans who voted for NN.

Also, twelve new members are Republicans who replaced Republicans who voted against NN. A thirteenth is a Republican who replaced a Republican who missed the floor vote. Few if any of these thirteeen should be considered as gains for the NN camp.

Another two Democrats who missed the vote, and two Republicans who missed the vote, were replaced by Democrats. Perhaps the NN camp could pick up a few votes here.

Finally, there were 26 Republicans who voted against NN who were replaced by Democrats. The NN camp could pick up some votes here, but at most, 26.

Table 4 also shows another glaring non-development. Not one of the new members replaced any of the 58 Democrats who voted against. All 58 are back.

Perhaps cable and telco lobbyists are already advising the new House Democrats that no Democrat has ever lost his or her seat after voting against NN.

What all this suggests is that unless circumstances change, the most that the network neutrality camp can hope for is a swing of about 20 to 25 votes, which would only bring the total to around 172/175 to 244/249. This would still be a lopsided defeat for network neutrality.

But, the gains may not even be this much. This core group of 26 Republican opponents of NN who were replaced by Democrats may not produce 20 to 25 new votes for NN. For example, the circumstances in these 26 districts that may have been a causal factor in persuading the former Representative to vote against NN may also persuade the new Representative to vote against NN.

Moreover, the providers of broadband services that lead the opposition to a network neutrality mandate have lost no time in seeking to win over these new members. For example, in the case of BellSouth, Federal Election Commission (FEC) disclosure documents, which are available in the FEC web site, show that BellSouth gave money to 8 of these 26, after the November elections. (The eight are Hill, Ellsworth, Hall, Klein, Mahoney, Murphy, Shuler, and Gallibrand.)

There is one change in circumstance. The Democrats now control the House agenda, and Democrats chair the committees. The hope of NN supporters might be that with the Democrats in control, the Democratic leadership will exert party discipline, and produce unanimous or near unanimous support for NN.

There are reasons to believe that this will not happen. First, neither Rep. Pelosi nor Rep. Hoyer have announced that this will happen. Moreover, the conduct of the House Democratic leadership to date has been inconsistent with any hypothesis that the leadership will enforce party unity to push a NN mandate through the House. Notably, the new Democratic assignments to the HCC are inconsistent with any such plan. All 5 of the network neutrality opponents from the 109th Congress retained their seats on the HCC. In addition, 4 of the 8 new Democratic members are likely opponents of NN. That is, the House Democratic leadership beefed up the Democratic opposition to NN on the HCC. Rep. Dingell and Rep. Markey may now control the agenda of the HCC, but they now have to deal with 9 Democrats who are likely opponents.

New Committee Assignments. There was also turnover in the membership of the HCC and its STI. The members of the HCC and STI for both the 109th and 110th Congress are set out in Table 5, at right. New members are shown in bold.

The only new Republican is Rep. Denny Hastert (R-IL), who reclaimed his old seat after serving as Speaker of the House.

There eight new Democratic members are Rep. Jane Harman (D-CA), Rep. Darlene Hooley (D-OR), Rep. Anthony Weiner (D-NY), Rep. Jim Matheson (D-UT), Rep. G.K. Butterfield (D-NC), Rep. Charlie Melancon (D-LA), Rep. John Barrow (D-GA), and Rep. Baron Hill (D-IN).

Persons who were members in the 109th Congress, but who are no longer members, are shown in italics. These include two Democrats -- Sherrod Brown (D-OH) and Ted Strickland (D-OH), and six Republicans -- Butch Otter (R-ID), Charles Bass (R-NH), Paul Gillmor (R-OH), Mike Bilirakis (R-FL), Rep. Marsha Blackburn (R-TN), and Rep. Roy Blunt (R-MO). Notably, all of the new members, except Rep. Hill, were already members of the House in the 109th Congress. However, Rep. Hill was previously a member of the House.

Table 5 also shows, if applicable, how each member voted on NN at the April 5, 2006, STI markup, at the April 26, 2006, HCC markup, and in the June 8, 2006, floor vote. The final two columns show how these members would vote, if they were to remain consistent.

Four of the new Democratic members voted for NN on the House floor (Harman, Hooley, Weiner and Matheson). However, three new members voted against (Butterfield, Melancon and Barrow). The eighth (Hill) was not a member of the 109th Congress. The only new Republican (Hastert) was a member of the 109th Congress, but did not vote on June 8, 2006.

One might speculate, given Hastert's views on government mandates generally, that he would join the overwhelming majority of Republicans in opposing a NN mandate.

One might also speculate that Hill would oppose NN, for several reasons. First, there is his vote in the 107th Congress on the Tauzin Dingell bill.

Many persons sat in both the 109th Congress, which held a roll call vote on Rep. Markey's network neutrality amendment, and the 107th Congress, which held a roll call vote on HR 1542, the "Internet Freedom and Broadband Deployment Act". That bill was also known as Tauzin Dingell (TD). There is a correlation between how members voted on TD, and how they voted on NN. Supporters of TD tend to be opponents of NN. The policy goals underlying support for TD and opposition to NN are related.

Consider, for example, that the five Democrats on the HCC who opposed NN (Gonzalez, Green, Rush, Towns and Wynn) also supported TD, while three of the four Democrats who sponsored the NN amendment in both the STI and HCC (Markey, Inslee and Eshoo) also opposed TD. Similarly, the one HCC Republican to support NN (Wilson) also opposed TD. Meanwhile, the HCC Republicans who most actively debated against NN (such as Upton, Barton, and Shimkus) also supported TD.

The correlation is not perfect. For example, Rep. Boucher and Rep. Dingell supported both TD and NN.

The key fact now is that Rep. Hill voted for TD. This is one reason to suspect that he might also oppose NN.

Another reason is that FEC records show that the AT&T Federal Political Action Committee gave $10,000 to Hill's campaign in the 2006 election cycle. This is notable because Hill was a running against a sitting incumbent. AT&T opposes NN. Other telcos gave smaller amounts to Hill's campaign. BellSouth has already starting giving to his 2008 campaign. And now, Hill has been assigned to the HCC and its STI.

If one considers the new membership of the STI and HCC, as displayed in Table 5, and assumes that returning members would vote the same way that they did in 2006, and that Hastert and Hill would vote against NN, then one can calculate projected outcomes of hypothetical votes on NN in the STI and HCC in the 2007.

The vote in the STI would be 14-19. The votes of each member are in the column of Table 5 labeled L1. Democrats would vote 13-5, and Republicans would vote 1-14. This is an improvement for the NN camp over the 8-23 vote on April 5, 2006.

The vote in the HCC would be 24-34. The votes of each member are in the column of Table 5 labeled L2. Democrats would vote 23-9, and Republicans would vote 1-25.

That is, unless something changes, Rep. Markey, the Chairman of the STI, and Rep. Dingell, the Chairman of the HCC, likely do not have the votes to get a NN mandate approved in either the STI or HCC on up or down votes.

This may be one reason why Rep. Boucher, a NN proponent, suggested in a speech on January 31, 2007, that the time has come to negotiate a compromise on NN. See, related story in this issue titled "Rep. Boucher Suggests Need for Compromise on Net Neutrality".

Senate. It is more difficult to analyze the prospects for NN in the Senate. The full Senate did not have a roll call vote on any NN provision in the 109th Congress. However, the Senate Commerce Committee (SCC) did.

The SCC marked up its communications reform bill in several session in late June of 2006. On June 28, 2006, it rejected a NN amendment offered by Sen. Olympia Snowe (R-ME) and Sen. Byron Dorgan (D-ND) on a roll call vote of 11-11. The SCC later approved the bill, without the Snowe Dorgan NN language, on a roll call vote of 15-7.

These votes are summarized in Table 6, at right. See also, stories titled "Senate Commerce Committee Marks Up Communications Bill" and "Mark Up of Title IX -- Network Neutrality" in TLJ Daily E-Mail Alert No. 1,404, July 5, 2006.

This bill was never considered by the full Senate. Sen. Ted Stevens (R-AK), the then Chairman of the SCC, stated that he did not have the 60 votes necessary to stop a filibuster by supporters of NN. (The Senate did not take up the House bill either.)

Applying the same type of analysis to the SCC it would appear that there are 10 votes for NN and 9 votes against. However, there are three new and uncounted Democrats, but only one new uncounted Republican. Thus, for the opponents of NN to defeat a NN provision in the SCC, they would need to pick up at least 3 of the 4 new members, including at least 2 Democrats. This may be an unlikely possibility.

Then it would be difficult to predict the probability of approval by the full Senate.

1/31. Rep. Rick Boucher (D-VA) gave a speech at the State of the Net Conference in Washington DC on January 31, 2007, in which he discussed, among other topics, network neutrality legislation.

Rep. Boucher is a proponent of a hard network neutrality mandate. He was a cosponsor of the network neutrality amendments that were rejected by the House Commerce Committee's (HCC) Subcommittee Telecommunications and the Internet (STI) on April 5, 2006, and by the full HCC on April 26, 2006.

See, stories titled titled "House Subcommittee Approves COPE Act", "House Subcommittee Rejects Network Neutrality Amendment", and "Amendment by Amendment Summary of Subcommittee Mark Up of COPE Act" in TLJ Daily E-Mail Alert No. 1,344, April 6, 2006. See also, story titled "House Commerce Committee Approves COPE Act" in TLJ Daily E-Mail Alert No. 1,359, April 27, 2006, and longer story titled "Amendment by Amendment Summary of Full Committee Mark Up of COPE Act" in TLJ Daily E-Mail Alert No. 1,360, April 28, 2006.

On January 31, Rep. Boucher (at right) again advocated the merits of network neutrality. However, he also suggested that there is now a need for opposing sides to talk and reach a compromise.

One of his points was that there is much important communications related legislation to be enacted, but that the dispute over network neutrality is preventing enactment.

He also argued that while there is a need to protect the innovation of content providers by protecting network neutrality, there is also a need to protect innovation in the network. He did not elaborate on this innovation, other than to discuss telemedicine.

He also stated to reporters afterwards that he has spoken with Federal Communications Commission (FCC) Chairman Kevin Martin, who related a new idea to him, which was not part of the Congressional debate last year, for addressing network neutrality. However, Rep. Boucher added that he was not at liberty to disclose Martin's idea. He added that Microsoft also has a good idea.

Rep. Boucher advocated enactment of bills that would require broadband service providers to offer stand alone broadband service. He also advocated legislation that would allow local governments to provide communications services, especially broadband services.

He also advocated "comprehensive reform of universal service". He and Rep. Lee Terry (R-NE) introduced HR 5072, the "Universal Service Reform Act of 2006", in the 109th Congress. He said that they will re-introduce the bill "in the coming weeks".

He also praised the video franchising provisions that formed the core of the HCC's communications reform bill in the 109th Congress. He continued that the network neutrality issue is what killed communications reform in the Senate in the 109th Congress. And, he posited that "until we resolve the network neutrality issue" other broadband related provisions will be blocked. He concluded, therefore, that "it is critically important that this be resolved". This, said Rep. Boucher, will require "compromise".

Rep. Boucher also said the the HCC's STI, which is chaired by Rep. Ed Markey (D-MA), will hold a series of hearing on network neutrality this Spring.

He also commented to reporters on January 31, 2007, that while the FCC has adopted a rule regarding video franchising, he has "some concerns" regarding the underlying statutory authority for the rule.

There is not yet a legal challenge to the rule. The FCC has not yet released it. However, Rep. Boucher said that he expects that there will be a legal challenge, and that until this legal issue is resolved by the Court, telcos will be reluctant to deploy new facilities.

Hence, Rep. Boucher argued that the Congress should enact a video franchising bill. But to clear the way for this, it must first resolve the network neutrality issue. He predicted that this all "could happen within six to eight months".

1/9. On January 9, 2007, Sen. Byron Dorgan (D-ND), Sen. Olympia Snowe (R-ME), and other Senators introduced S 215, the "Internet Freedom Preservation Act".

Legislative History. On May 19, 2006, Sen. Snowe, Sen. Dorgan and others introduced S 2917, the "Internet Freedom Preservation Act". See also, story titled "Snowe and Dorgan Introduce Net Neutrality Bill" in TLJ Daily E-Mail Alert No. 1,375, May 22, 2006.

The two also offered a related amendment to the SCC's communications reform bill, which was rejected on a role call vote of 11-11 on June 28, 2006. See, stories titled "Senate Commerce Committee Marks Up Communications Bill" and "Mark Up of Title IX -- Network Neutrality" in TLJ Daily E-Mail Alert No. 1,404, July 5, 2006.

The SCC approved that communications reform bill, without the Snowe Dorgan language. However, the full Senate did not take up the bill. Sen. Ted Stevens (R-AK), the then Chairman of the SCC, stated that there were not enough votes to overcome a filibuster by proponents of Snowe Dorgan.

Bill Summary. This bill first provides that broadband services providers (BSPs) shall not block users' access to lawful content or services, shall not prevent users from attaching devices, and shall provide certain information to users. These provisions are not controversial.

The bill then requires that BSPs "shall  ... enable any content, application, or service made available via the Internet to be offered, provided, or posted on a basis that  ... is reasonable and nondiscriminatory" and is "at least equivalent to the access, speed, quality of service, and bandwidth that such broadband service provider offers to affiliated content ..." It also provides that BSPs shall "only prioritize content, applications, or services ... without charge for such prioritization". These provisions are controversial.

Specifically, the bill provides that "With respect to any broadband service offered to the public, each broadband service provider shall--
  (1) not block, interfere with, discriminate against, impair, or degrade the ability of any person to use a broadband service to access, use, send, post, receive, or offer any lawful content, application, or service made available via the Internet;
  (2) not prevent or obstruct a user from attaching or using any device to the network of such broadband service provider, only if such device does not physically damage or substantially degrade the use of such network by other subscribers;
  (3) provide and make available to each user information about such user's access to the Internet, and the speed, nature, and limitations of such user's broadband service;
  (4) enable any content, application, or service made available via the Internet to be offered, provided, or posted on a basis that -- (A) is reasonable and nondiscriminatory, including with respect to quality of service, access, speed, and bandwidth; (B) is at least equivalent to the access, speed, quality of service, and bandwidth that such broadband service provider offers to affiliated content, applications, or services made available via the public Internet into the network of such broadband service provider; and (C) does not impose a charge on the basis of the type of content, applications, or services made available via the Internet into the network of such broadband service provider;
  (5) only prioritize content, applications, or services accessed by a user that is made available via the Internet within the network of such broadband service provider based on the type of content, applications, or services and the level of service purchased by the user, without charge for such prioritization; and
  (6) not install or utilize network features, functions, or capabilities that impede or hinder compliance with this section."

The bill provides exceptions to the above to protect the security of users' computers, to protect the security of the network, to block "indecency or unwanted content" and spam, to handle breaches of terms of service, and to prevent violations of law.

The bill also provides that "Nothing in this section shall apply to any service regulated under title VI, regardless of the physical transmission facilities used to provide or transmit such service."

The bill also requires BSPs to provide stand alone broadband service. It requires that "A broadband service provider shall not require a subscriber, as a condition on the purchase of any broadband service offered by such broadband service provider, to purchase any cable service, telecommunications service, or IP-enabled voice service."

The bill also gives the FCC authority to enforce these requirements in an adjudicatory manner, and requires the FCC to promulgate procedural rules for this purpose. Moreover, the bill authorizes the FCC to order BSPs to pay "damages to a complaining party for a violation of this section".

Sen. Dorgan stated that unless this legislation is enacted, "The broadband operator will become a gatekeeper, capable of deciding who can get through to a consumer, who can get special deals, faster speeds, better access to the consumer. This fundamentally changes the way the Internet has operated and threaten to derail the democratic nature of the Internet. American consumers and businesses will be worse off for it." See, Congressional Record, January 9, 2007, at Pages S286-7.

"It is for this reason that Senator Snowe and I are reintroducing the Internet Freedom Preservation Act, with the support of Internet businesses large and small, consumer groups, labor and education groups, religious organizations, and many others", said Sen. Dorgan.

He added that "nondiscrimination rules and Internet freedom can co-exist with profitable business plans. Recently AT&T accepted as a condition of its merger with BellSouth a net neutrality provision written by the FCC. Wall Street immediately reported that it expected no impact on AT&T's bottom line by the acceptance of these conditions, and AT&T is forging ahead, while at the same time having committed to protecting Internet freedom."

But, Sen. Dorgan concluded, "legislation is still critical. The merger conditions are an important step but are not enough. We must restore Internet freedom mandates to the entire broadband industry and make them permanent, ensuring that consumers can continue to receive the benefits of an open and vibrant Internet not only in the short term from AT&T, but from any broadband provider in the longer term."

The other original cosponsors of the bill are Sen. John Kerry (D-MA), Sen. Barbara Boxer (D-CA), Sen. Tom Harkin (D-IA), Sen. Patrick Leahy (D-VT), Sen. Hillary Clinton (D-NY), Sen. Barrack Obama (D-IL), and Sen. Ron Wyden (D-OR). The bill was referred to the Senate Commerce Committee (SCC).

Reaction. Walter McCormick, head of USTelecom, stated in a release that "The Dorgan-Snowe Bill calls for the government, for the first time ever, to regulate the Internet. Instead, national policy should focus on expanding the reach and capacity of broadband to all Americans. Government regulation would make it against the law for any company to invest in customized Internet service. That would mean all of us losing advances in home health monitoring, greater security of our financial transactions, new entertainment choices and telecommuting opportunities. Democrats and Republicans have made broadband deployment a priority and we look forward to working with Congress toward productive solutions to reach this important goal."

Gigi Sohn, head Public Knowledge, stated in a release that "Senators Dorgan and Snowe should be commended for starting out the Congressional debate to make certain a free and open Internet will continue to exist. The terms of the AT&T takeover of BellSouth make clear that the industry, despite its protestations to the contrary, now accepts the idea that non-discrimination is a vital principle in providing essential Internet services."

Kyle Dixon, an attorney in the Washington DC office of the law firm of Wilmer Hale, wrote a paper [PDF] titled "Joining the snake: A balanced and pragmatic approach to network neutrality". He wrote that "Network neutrality proponents express a laudable desire to preserve the Internet as a robust medium of innovation, expression, and empowerment. Their methods, however, are likely to do more harm than good." This paper was published in the Winter edition for Virginia Tech's Virginia Issues and Answers (VIA). Dixon previously worked at the Progress and Freedom Foundation (PFF). Before that he was a legal advisor to former FCC Chairman Michael Powell.

Dixon wrote that "most proposed network-neutrality mandates merely favor companies that use broadband networks over companies that build those networks. Moreover, those who favor such regulation ignore the risk that it will undermine incentives for companies to upgrade and expand existing networks or to build new ones that would bring consumers additional competition."

He argued that the government should employ a "market power solution", rather than legislate network neutrality. The government should "step in where necessary to prevent or remedy substantial and imminent harms to consumer welfare. Filling this role requires that government turn a deaf ear to calls for mandating network neutrality for all broadband providers in all cases and to look at regulation only if broadband providers exercise coercive influence in the marketplace, or market power, similar to that wielded by monopolists. In the absence of such market power, network owners already face sufficient pressure from consumers or competitors, making neutrality mandates unnecessary."

This is the approach taken by a bill introduced by Sen. Jim DeMint (R-SC) in the 109th Congress, S  2113, the "Digital Age Communications Act of 2005".

2/1. The U.S. Court of Appeals (FedCir) issued its divided opinion [56 pages in PDF] in Voda v. Cordis, holding that a District Court may not exercise supplemental jurisdiction pursuant to 28 U.S.C. § 1367 over infringement claims based on foreign patents. Judge Newman wrote a long dissent. This case is Jan K. Voda v. Cordis Corporation, U.S. Court of Appeals for the Federal Circuit, App. Ct. No. 05-1238, an appeal from the U.S. District Court for the Western District of Oklahoma, D.C. No. 03-1512 , Judge Tim Leonard presiding. Judge Gajarsa wrote the opinion of the Court of Appeals, in which Judge Prost joined. Judge Pauline Newman wrote a dissenting opinion.

1/25. The Anti-Spyware Coalition (ASC) released a document titled "Best Practices: Factors for Use in the Evaluation of Potentially Unwanted Technologies". Ari Schwartz, coordinator of the ASC and Deputy Director of the Center for Democracy & Technology (CDT), stated in a release that completion of this document is a "watershed event" for the "global anti-spyware community". He added that "these best practices will be a vital tool -- not only for anti-spyware vendors to use in honing the detection process -- but also to help software developers avoid publishing products likely to be unwanted by consumers".

1/18. The Federal Trade Commission's (FTC) Alden Abbott spoke at a conference in Brussels, Belgium, regarding antitrust, intellectual property, and standard setting organizations. See, bullet points. See also, story titled "DOJ's Masoudi Addresses Antitrust, Standard Setting and IPR" in TLJ Daily E-Mail Alert No. 1,528, January 29, 2007.

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

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

Privacy Policy
Notices & Disclaimers
Copyright 1998 - 2006 David Carney, dba Tech Law Journal. All rights reserved.

The House will meet at 2:00 PM for legislative business. It will consider several non-technology related items under suspension of the rules. Votes will be postponed until 6:30 PM. See, Democrat leader's weekly calendar [PDF].

The Senate will meet at 2:00 PM for morning business. It will then resume consideration of S 470, a bill pertaining to Iraq.

CANCELLED. 11:00 AM. The Digital Freedom Coalition will host a news conference by teleconference to discuss its legislative agenda for 2007. The speakers will be Gigi Sohn (Public Knowledge), Gary Shapiro (Consumer Electronics Association), Cathy Sloan (Computer and Communications Industry Association), Harold Feld (Media Access Project), Courtney Delaney (Outbound Music), and Jason Schultz (Electronic Frontier Foundation). To participate, call 1-888-453-4221. The passcode is 778747. For more information, contact Jennifer Stolz at 202-448-3145.

12:30 PM. Ted Leonsis, Vice Chairman of AOL, will give a speech titled "Web 2.0 and How it is Reshaping Marketing and Traditional Media". Location: Ballroom National Press Club, 13th floor, 529 14th St. NW.

Deadline to submit comments to the Federal Communications Commission (FCC) in response to the recommendations of the FCC's World Radiocommunication Conference Advisory Committee regarding the 2007 World Radiocommunication Conference (WRC-07). See, FCC's Public Notice [45 pages in PDF] (DA 07-26), to which the recommendations are attached. This is IB Docket No. 04-286.

The House will meet at 10:30 AM for morning hour, and at 12:00 for legislative business.. It will consider several non-technology related items under suspension of the rules. See, Democrat leader's weekly calendar [PDF].

9:00 AM - 5:00 PM. Day one of a three day meeting of the Architectural and Transportation Barriers Compliance Board's (ATBCB) Telecommunications and Electronic and Information Technology Advisory Committee (TEITAC). The agenda includes consideration of web site design mandates. Section 508 of the Rehabilitation Act of 1973, as amended, which is codified at 29 U.S.C. § 794d, provides that the ATBCB shall write regulations that contain design mandates for federal departments and agencies for electronic and information technologies used by disabled employees. See, notice in the Federal Register: January 12, 2007, Vol. 72, No. 8, at Pages 1472-1473. Location: Transportation Security Administration, 601 South 12th Street, Arlington, VA.

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in Qwest Corp v. FCC, App. Ct. No. 05-1450. See, FCC's brief [PDF]. Judges Griffith, Kavanaugh and Williams will preside. Location: 333 Constitution Ave., NW.

10:00 AM. The House Ways and Means Committee will hold a hearing titled "President’s Fiscal Year 2008 Budget". The witness will be Secretary of the Treasury Henry Paulson. See, notice. Location: Room 1100, Longworth Building.

? 10:00 AM. The Senate Judiciary Committee (SJC) will hold a hearing to examine the Department of Justice's (DOJ) hiring and firing of U.S. attorneys. Press contract, Tracy Schmaler at 202-224-2154. Location: Room 226, Dirksen Building.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in DataTreasury v. EDS, App. Ct. No. 2006-1506. This is a patent infringement case involving electronic check processing. Location: Courtroom 203, 717 Madison Place, NW.

2:00 PM. The House Judiciary Committee's (HJC) Subcommittee on Crimes will meet to mark up several bills, including HR 740, the "Preventing Harassment through Outbound Number Enforcement (PHONE) Act of 2007" See, notice. Location: Room 2141, Rayburn Building.

? 2:30 PM. The Senate Judiciary Committee (SJC) will hold a hearing on the nominations of John Preston Bailey to be a Judge of the U.S. District Court for the Northern District of West Virginia, and Otis Wright, and George Wu to be Judges of the U.S.D.C. for the Central District of California. Press contract, Tracy Schmaler at 202-224-2154. Location: Room 226, Dirksen Building.

2:45 PM. The Senate Finance Committee will hold a hearing titled "The President’s Fiscal Year 2008 Budget Proposal". Secretary of the Treasury Henry Paulson will testify. See, notice. Location: Room 215, Dirksen Building.

Deadline to submit initial comments in response to the Federal Communications Commission's (FCC) Public Notice [4 pages in PDF] regarding how the FCC should interpret the phrase "remote communities effectively unserved by commercial mobile service", in Section 605(a) of the Warning, Alert, and Response Network (WARN) Act. The WARN Act was enacted in late 2006 a part of the port security bill. It establishes a process for commercial mobile service providers to voluntarily elect to transmit emergency alerts. Section 605(a) establishes a grant program for the installation of technologies in remote communities. This item is FCC 07-4 in PS Docket No. 07-8. See also stories titled "Bush Signs Port Security Bill" in TLJ Daily E-Mail Alert No. 1,469, October 16, 2006, and "House and Senate Approve Port Security Bill With Tech Provisions" in TLJ Daily E-Mail Alert No. 1,461, October 4, 2006.

The House will meet at 10:00 AM for legislative business. It may consider HR 742, a bill to extend the term of the Antitrust Modernization Commission (AMC). See, Democrat leader's weekly calendar [PDF].

9:00 AM - 5:00 PM. Day two of a three day meeting of the Architectural and Transportation Barriers Compliance Board's (ATBCB) Telecommunications and Electronic and Information Technology Advisory Committee (TEITAC). The agenda includes consideration of web site design mandates. See, notice in the Federal Register: January 12, 2007, Vol. 72, No. 8, at Pages 1472-1473. Location: Transportation Security Administration, 601 South 12th Street, Arlington, VA.

? 9:30 AM. The Senate Judiciary Committee (SJC) will hold a hearing "to examine if the Department of Justice is politicizing the hiring and firing of U.S. attorneys relating to preserving prosecutorial independence". Press contract, Tracy Schmaler at 202-224-2154. Location: Room 226, Dirksen Building.

10:00 AM. The House Financial Services Committee (HFSC) will hold a hearing titled "Committee on Foreign Investments in the United States (CFIUS), One Year After Dubai Ports World". Location: Room 2128, Rayburn Building

12:00 NOON - 1:30 PM. The DC Bar Association will host a panel discussion titled "Global Trademark Portfolio Part II: Maintenance and Enforcement". The speakers will include Elizabeth Regan (Marriott International), Elisabeth Langworthy (Sutherland Asbill & Brennan), and Leigh Ann Lindquist (Sughrue Mion). The price to attend ranges from $15 to $30. For more information, call 202-626-3463. See, notice. Location: DC Bar Conference Center, 1250 H St NW B-1 Level.

12:00 NOON - 2:00 PM. The DC Bar Association will host a panel discussion titled "Business Activity Tax Nexus: New Cases, Federal Legislation, and FIN 48". The speakers will include Diann Smith (Council On State Taxation) and Kendall Houghton (Sutherland Asbill & Brennan). The price to attend ranges from $10 to $30. For more information, call 202-626-3463. See, notice. Location: DC Bar Conference Center, 1250 H St NW B-1 Level.

2:00 PM. The House Ways and Means Committee will hold a hearing on President's Bush's FY 2008 Budget. The witness will be OMB Director Rob Portman. See, notice. Location: Room 1100, Longworth Building.

6:30 - 8:30 PM. The Federal Communications Bar Association's (FCBA) Diversity & Young Lawyers Committees will host an event titled "Happy Hour". For more information, contact Jeffrey Tignor at jeffrey dot tignor at fcc dot gov or 202-418-0774, or Mark Brennana at MWBrennan at HHLAW dot com or 202-637-5600. Location: Zengo, 781 7th St., NW.

The Federal Communications Commission (FCC) is scheduled to commence Auction No. 69.

The House will meet at 10:00 AM for legislative business. It may consider HR 742, a bill to extend the term of the Antitrust Modernization Commission (AMC). See, Democrat leader's weekly calendar [PDF].

9:00 AM - 3:00 PM. Day three of a three day meeting of the Architectural and Transportation Barriers Compliance Board's (ATBCB) Telecommunications and Electronic and Information Technology Advisory Committee (TEITAC). The agenda includes consideration of web site design mandates. See, notice in the Federal Register: January 12, 2007, Vol. 72, No. 8, at Pages 1472-1473. Location: Transportation Security Administration, 601 South 12th Street, Arlington, VA.

10:00 AM. The Senate Commerce Committee (SCC) will hold a hearing titled "The Present and Future of Public Safety Communications". See, notice. Location: Room 253, Russell Building.

10:00 AM. The Senate Judiciary Committee (SJC) will hold a business meeting. The agenda includes numerous bills, including S 236, the "Federal Agency Data Mining Reporting Act of 2007". The agenda also includes consideration of three judicial nominees, Judge Randy Smith (to be a Judge of the U.S. Court of Appeals for the the 9th Circuit), Marcia Howard (U.S. District Court for the Middle District of Florida), and John Jarvey (U.S.D.C. for the Southern District of Iowa). See, notice. The SJC does not take up all of the items on its published agendas. Press contract, Tracy Schmaler at 202-224-2154. Location: Room 226, Dirksen Building.

12:15 PM. The Federal Communications Bar Association's (FCBA) Transactional Practice Committee will host an event titled "Understanding the Committee on Foreign Investment in the US (CFIUS)". The speakers will include Gay Sills (Staff Chair of CFIUS) and Joel Winnik (Hogan & Hartson). Lunch will be provided courtesy of Hogan & Hartson. RSVP to Neil Dellar at neil dot dellar at fcc dot gov or 202-418-8214. Location: Hogan & Hartson, 555 13th St., NW.

2:00 - 4:00 PM. The Department of State's (DOS) International Telecommunication Advisory Committee (ITAC) will meet to prepare advice on U.S. positions for the International Telecommunication Union's (ITU) Telecommunication Standardization Sector Study Group 3 (Tariff and accounting principles including related telecommunication economic and policy issues). See, notice in the Federal Register, January 11, 2007, Vol. 72, Number 7, at Page 1363. Location: undisclosed.

4:00 - 5:45 PM. The American Enterprise Institute (AEI) will host a panel discussion titled "Trade Policy as Foreign Policy: The Evolution of China’s Trade and Commercial Diplomacy". The speakers will be Claude Barfield (AEI), Margaret Pearson (University of Maryland), Phillip Saunders (National Defense University), and Christopher Griffin (AEI). See, notice. Location: AEI, 1150 17th St., NW.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to the Petition for Declaratory Ruling [8 pages in PDF] regarding number portability submitted by T-Mobile USA and Sprint Nextel Corporation on December 20, 2006. They seek a declaratory ruling that carriers obligated to provide number portability may not obstruct or delay the porting process by demanding information from requesting carriers beyond that required to validate the customer request and accomplish the port. See, FCC's Public Notice [3 pages in PDF] (DA 07-39). This proceeding is WC Docket No. 95-116.

The Democrat leader's weekly calendar [PDF] states that "On Friday, no votes are expected in the House."

8:30 AM. The Alliance for Public Technology (APT) will host an event titled "Policy Forum and Susan G. Hadden Pioneer Awards". See, notice. Location: National Press Club, 529 14th St. NW, 13th Floor.

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in Vonage v. FCC, a challenge to the Federal Communications Commission's (FCC) order [151 pages in PDF] adding interconnected VOIP service providers to the tax base of the FCC's universal service subsidy program. See also, story titled "FCC to Tax Interconnected VOIP Service Providers" in TLJ Daily E-Mail Alert No. 1,397, June 22, 2006, and story titled "FCC Releases Order and NPRM Regarding VOIP and Universal Service Taxes" in TLJ Daily E-Mail Alert No. 1,403, June 29, 2006. The FCC's order is FCC 06-94 in Docket Nos. 06-122, 04-36, 96-45, 98-171, 90-571, 92-237, 99-200, 95-116, 98-170. This case is Vonage Holding Corporation and Computer and Communications Industry Association v. FCC and USA, U.S. Court of Appeals for the District of Columbia, App. Ct. Nos. 06-1276 and 06-1317. See, FCC's brief [74 pages in PDF]. Judges Tatel, Garland and Edwards will preside. Location: 333 Constitution Ave., NW.

Deadline to submit initial comments to the Federal Communications Commission's (FCC) Media Bureau (MB) in response to its 7th Further Notice of Proposed Rulemaking regarding revisions to the proposed new DTV table of allotments. See, notice in the Federal Register, January 19, 2007, Vol. 72, No. 12, at Pages 2485-2487. This 7thFNPRM is FCC 06-150 in MB Docket No. 87-268.

1/31. The Federal Communications Commission (FCC) released a Public Notice [3 pages in PDF] pertaining to M2Z Networks' application for an exclusive, nationwide license to use 20 MHz of spectrum to provide free wireless broadband service.

Introduction. M2Z proposes to use the 2155-2175 MHz band to provide wireless internet access. M2Z wants the spectrum for free, and without FCC rules. In return, M2Z proposes to offer free service for consumers and law enforcement at 384 kbps downstream and 128 kbps upstream, and pay 5% of its revenues from subscribers to the federal government.

M2Z would make money selling service at higher transfer rates, selling other services, selling advertisements, and perhaps by selling access to pornography. M2Z, not the FCC, would certify devices.

M2Z is financially supported by several Silicon Valley venture capital firms, including Kleiner Perkins. Its staff in Washington DC includes numerous former senior FCC officials, including former Bureau Chiefs John Muleta, Ken Ferree, and Kathleen Wallman. Milo Medin, its Chairman, was the co-founder and Chief Technology Officer of @Home Networks.

FCC Public Notice. The FCC's just released item neither grants nor rejects the application.

The FCC referenced M2Z's application, and then wrote that "This 20-megahertz block of spectrum at 2155-2175 MHz is allocated for fixed and mobile services and designated for Advanced Wireless Services (AWS) use. M2Z's Application has been found, upon initial review, acceptable for filing, pursuant to our general statutory authority under Section 309 of the Communications Act of 1934, as amended (the Act). Although we are accepting M2Z’s Application for filing under our general statutory authority (rather than pursuant to an established framework of processing rules), this action does not imply any judgment or view about the merits of the Application, nor does it preclude a subsequent dismissal of the Application as defective under existing rules or under future rules that the Commission may promulgate by notice and comment rulemaking." (Parentheses in original. Footnotes omitted.)

The Public Notice adds that "additional applications for spectrum in this band may be filed while the M2Z application is pending."

It further states that "we find that this proceeding should be treated for purposes of the ex parte rules as a permit-but-disclose proceeding."

There is no open rulemaking proceeding. There is no deadline to submit comments to the FCC. Hypothetically, but not likely, the FCC could grant M2Z's application after 30 days. 47 U.S.C. § 309(d)(1) provides, in part, that the FCC can grant the application "no less than thirty days following the issuance of public notice by the Commission of the acceptance for filing of such application".

This Public Notice states that it is DA 07-492 in WT Docket No. 07-16. However, relevant filing have been made with the FCC that reference other docket numbers, including WT Docket 06-89 and EB Docket No. 06-119.

M2Z's Application for Spectrum License. On May 5, 2006, M2Z filed with the FCC its "license application to construct and operate a nationwide broadband wireless network in the 2155-2175 MHz spectrum band". It submitted a revised application [HTML, without appendices] on September 1, 2006. See also, revised application [134 pages in PDF, with appendices].

M2Z stated that granting its application would "enable M2Z to rapidly make available free, high speed broadband access to nearly every consumer, business and non-profit and public safety entity in the United States without relying on the Universal Service Fund or other taxpayer dollars." (Footnote omitted.)

This is not paired spectrum. M2Z requests that this spectrum not be auctioned. Instead, it wants an exclusive 15 year license for free. M2Z requests that the FCC conduct no rule making proceeding. It wants no rules, no service rules for this band, and no rules regarding devices. M2Z states that it would hold the authority to certify devices.

The spectrum has been designated for Advanced Wireless Service (AWS), and is not currently being used, except that some incumbent fixed microwave service licensees in the 2160-2175 MHz band would be relocated, and incumbent BRS licensees in the 2150-2162 MHz band would be relocated.

M2Z proposes to provide free service at "384 kbps downlink/128 kbps uplink" to "consumers and public safety entities". The application is unclear as to the meaning of "consumers" and "public safety entities". TLJ spoke with M2Z's Kathleen Wallman, who said that "consumers" is used in a broad sense, and includes businesses.

M2Z would use time division duplex (TDD), smart antenna, and Orthogonal Frequency Division Multiple Access (OFDMA) technologies.

M2Z argues that the benefits of it proposed service include near universal free broadband access, free interoperable public safety communications, relief of pressure on the FCC's Universal Service Fund, increased broadband competition, and revenue for the federal government.

It proposes to make service available to "95% of U.S. consumers" within 10 years. It does not disclose what percentage of the geographic territory of the U.S. would be covered.

It states that it will "submit a voluntary payment to the U.S. Treasury of 5% of gross revenues generated from the subscription services that it will offer in addition to the free" service.

M2Z argues that by providing a free service, it would release pressure on the FCC's system of universal service tax and subsidy programs. It states that its service would "obviate the expansion of the Universal Service Fund".

M2Z further states that it "anticipates that its Premium Services (for which there will be a consumer charge) would be subject to universal service contributions to the extent specified by the Commission in appropriate rulemaking proceedings, and subject to the demands of competitive parity with the high speed access offerings of telephone companies and cable operators." (Parentheses in original.)

M2Z's application focuses on its arguments as to why giving it free and unregulated spectrum is in the public interest. It states little about its expected revenue streams. However, the application states that M2Z would make money by selling access at higher transmission rates, and selling associated services.

Also, the application does not exclude the possibility that M2Z would derive revenue streams from its control of the standards for, and certification of, access devices. However, M2Z's Wallman told TLJ that it does not intend to derive revenue from the certification of devices.

At this point, M2Z has submitted an application to the FCC. The FCC has taken no position, and initiated no proceeding. No other entity has yet filed an application for use of this spectrum band. No one has filed with the FCC an objection to, or comments on, M2Z's application. It is uncertain whether or not the FCC will ultimately grant the application. However, if the FCC were to grant the application, numerous others issues might be raised.

M2Z Certification of Devices. The M2Z service would be free, but consumers and public safety entities would have to purchase a "M2Z-certified reception device available from various established competitive vendors". M2Z, not the FCC, would control standards and certifications.

M2Z added that "We anticipate that the equipment, even initially, will cost less than $250.00, and that the cost will decline with increasing consumer adoption and manufacturing scale."

It further states that "M2Z does not plan nor does it intend to be in the business of selling customer premises equipment ("CPE") necessary to connect to its network. Instead, M2Z’s limited, albeit critical, role will be to confirm that such devices are certified to properly operate on its network and meet the operational requirements of its license. M2Z plans to work with a wide number of technology partners including chip makers, modem and radio manufacturers and personal computer manufacturers to develop a set of affordable end-user devices in large volumes."

The application is silent on the subjects of certification and licensing fees. Hypothetically, M2Z could act in a capacity that is analogous to that of a patent holder, and charge royalties or other fees to device manufacturers. Nor does the application state whether M2Z might derive revenue from incorporating capabilities into its standard for the network access devices.

But, M2Z's Wallman stated that it does not intend to do this. She said that this will be "open standard" and that it expects to use the certification process only to assure that manufacturers comply with the standard. She added the M2Z wants access devices to be inexpensive, and not a source of licensing revenue.

Selling Access to Porn. M2Z's application emphasizes M2Z's commitment to serving the public interest, including its intent to protect children. It states that it will "block access to indecent content for all free access service users". It promises to prevent access to "pornographic, obscene or indecent material".

However, some of the other details of M2Z's application are not inconsistent with the hypothesis that M2Z's motive may be more than puritanical or altruistic. There may also be a profit maximizing motive.

The application points out that "customers will be unable to alter the filters". There is no exception for adults or any other categories of users. Moreover, by blocking access to "indecent" material, M2Z proposes to block access to material that is not illegal. Indeed, it would block access to some material that is constitutional protected.

Then, M2Z states that customers who want to get around its filters "may do so by enrolling in one of M2Z’s Premium Service offerings". M2Z adds that "use of a credit card" would be sufficient to obtain this level of service.

Thus, for porn consumers, M2Z would not be blocking access to porn. It would be selling access to porn. This could be a significant revenue stream.

M2Z's Wallman does not view its business model in this light. She said that there will be a fee based service that provides high speed access (3 mbps downstream and 1 mbps upstream). However, one attribute of this service is that consumers will be able to receive unblocked content. She said that she expected that consumers would be paying to receive the faster service, not to access the porn. The application does not state whether or not there will be a fee based service that provide unblocked access, but not higher transfer rates.

M2Z's application only references "pornographic, obscene or indecent material".

It does not state whether or not it would block access to any offshore gambling web sites, alcohol retailers, or prescription drug distributors. Nor does it address whether M2Z would block access to web sites that sell nazi memorabilia, convey jihadist messages, or contain hate speech.

The application also contains the statement that its "approach is to route free-user traffic through a set of proxy servers, which can examine the traffic flows for improper activity and restrict access as required."

It elaborates that "In the proxy server approach, web and other traffic from a user is directed through various network elements to a set of regional servers, which then process the requests. These servers can examine the URL (the web address of a specific piece of content), and compare it with a list of sites that contain pornography or other forms of indecent content. If the requested site is not in the list of problematic sites, then the server requests the data from the remote web server (using the proxy server’s own IP address), and then delivers the data back to the user. If the URL is on a list of prohibited sites, then the user is provided with a message that indicates that the URL cannot be accessed." (Parentheses in original.)

A footnote adds that "Likewise, when a user sends out email, the outbound SMTP request is redirected by the network to a set of servers. If the user is attempting to send large volumes of email and the traffic matches a profile of spam, the server can reject the email or slow down the rate it can be sent to the rest of the Internet, thereby lowering the desirability of M2Z's network to so called spam merchants."

This filtering approach is similar to that employed by the People's Republic of China (PRC). Both involve routing all traffic through devices that block attempts to access web sites with URLs on a block list. See for example, the description of the PRC's system in Who Controls the Internet: Illusions of a Borderless World [Amazon], by Jack Goldsmith and Tim Wu, published in 2006. See especially, Chapter 6, at pages 87-104.

The application says nothing about what procedure would exist for content providers to contest their placement on M2Z's block list. However, Wallman stated that there will be a complaint procedure, and that there will be prompt resolution of complaints.

Advertising. M2Z's application states that its service will be "advertiser-supported". It compares this to the business model of over-the-air broadcasting.

The application does not disclose the nature, extent, or bandwidth consumption of this advertising. Nor does M2Z provide any information regarding monitoring of consumers, targeting of advertisements, or sharing of information with advertisers.

Service Agreement. The application, at Appendix 2, makes reference to a "service agreement" with consumers.

It states that it will "disconnect any end user from its service for any violation of its service agreement, this condition or the Commission's regulations." The meaning of the term "this condition" is not defined. This phrase is included in a paragraph that describes M2Z's plan to block "access to pornographic, obscene, and/or indecent material".

The application does not disclose what the terms of this service agreement would be.

Wiretaps, Stored Communications, and Other Surveillance. The application says almost nothing about government surveillance. It does not disclose M2Z's plans to store data on customers, or its plans to give that data to the government. It does not address technology or plans regarding stored communications. It says nothing about technologies to be built into the network to facilitate government wiretaps, capture of pen register and trap and trace device or routing information, and other surveillance.

However, the application does state, at Appendix 2, that "M2Z is subject to regulation as Commercial Mobile Service under Section 332 of the Communications Act of 1934, 47 U.S.C. § 332, and as a Commercial Mobile Radio Service as defined in Section 20.9 of the Commission’s rules. See 47 C.F.R. § 20.9." That is, M2Z would subject itself, and its customers, to regulation under the rubric of the Communications Assistance for Law Enforcement Act (CALEA).

The body of the application states, at footnote 101, that "M2Z expects that it would be regulated as a CMRS provider, see Appendix 2 at Condition 10(f), and therefore will be subject to CALEA, E911, and relevant reporting requirements to the extent these provisions are applicable to CMRS and M2Z's proposed service."

Copyright. M2Z's application is silent on copyright related issues.

It says nothing about incorporating technologies into access devices, or the network, that are designed to prevent the copying or distribution of copyrighted works. Nor does it address the FCC's authority to issue mandates.

The application says nothing about digital rights management technologies.

It says nothing about whether it would also employ its proxy server based blocking technology to also block access to web sites that may have distributed copyrighted works without authority. It says nothing about whether it would extend its termination of service policy to users who may have violated copyrights.

And, it says nothing about whether M2Z would derive revenue or benefits from content providers in connection with copyright related activities.

Neither "copyright", "DRM", "DMCA", nor "flag" appear once in the 134 page application.

M2Z's Wallman states that this is essentially a CMRS service, and as has heretofore been the case for CMRS providers, copyright issues should not be raised.

However, this gist of this subsection is that since M2Z would not be providing old fashioned CMRS cell phone service, but rather internet access service at 384 kbps or 3 mbps for laptops and desktops, the RIAA, MPAA, and other copyright industry groups might view this subject in a different light.

Tiered Service. The application is clear that M2Z plans to tier its services to end users, in several ways. There would be ordinary consumers and public safety users. There would be free basic levels of service and fee based faster services.

However, the application is silent about whether or not M2Z plans to tier the level of connectivity to content providers, and if so, if this would also be associated with revenue generation.

The application discloses that M2Z plans build a national network that would route all traffic through proxy servers for the tiering of access to content by end users. The application suggests the possibility of routing all traffic through CALEA related facilities. It might then be of limited marginal difficulty for M2Z to also control traffic for the purpose of imposing different levels of access to different content providers. Moreover, the criteria employed by M2Z for assigning levels of access could include compensation by content providers.

Prices and Competition With Other Platforms. The application does not address prices for fee based faster service.

Wallman told TLJ that M2Z would not even sell subscription service. Rather, it would sell wholesale to its wholesale partners, who would then sell subscription based service to consumers.

Moreover, the wholesale partners would be free to bundle the wireless broadband service with other services. She added that M2Z does not intend to engage in retail price maintenance -- either minimum or maximum prices.

She added that the subscription based service might be seen as a substitute for cable internet service, while the free service might be seen as a substitute for DSL service. Alternatively, it might be used by consumers as a complimentary service.

Other M2Z Filings with the FCC. M2Z filed a petition for forbearance [PDF] with the FCC on September 1, 2006, seeking forbearance of application of Sections 1.945 (b) and (c).

On July 11, 2006, Pantelis Michalopoulos, of the Washington DC office of the law firm of Steptoe & Johnson, submitted a comment [16 pages in PDF] to the FCC in its proceeding titled "In the Matter of Creation of a Spectrum Sharing Innovation Test-Bed". This comment also discussed M2Z's May 5 application. This proceeding is ET Docket No. 06-89.

August 7, 2006, M2Z submitted a letter [PDF] and attached statement [11 pages in PDF] to the FCC in a proceeding regarding emergency communications -- EB Docket No. 06-119.

M2Z wrote in this statement that "When a disaster strikes, first responders initiate a wide variety of information and communications tasks. Emergency personnel need to first assess the damage and then react to the situation as it unfolds while bringing relief and aid to those that need it the most. Providing first responders with durable means of communications and information exchange are imperative to the first responders’ ability to deliver an effective and efficient response to disasters. To date efforts to build robust communication networks during times of crisis has fallen short. The solutions that have been tried have been narrow with a focus on solving network interoperability instead of information interoperability. Other solutions throw more capacity in the form of additional spectrum although the capacity is so narrowly circumscribed to public safety that it does not achieve the scale of economies needed for meeting the new threat matrices faced by public safety groups. It has become clear that a homogenous approach towards meeting public safety’s needs have failed and will continue to fail. In light of the need to make a change, M2Z espouses a new public safety network model comprised of heterogeneous systems that work together to meet the diverse needs of public safety in times of crisis."

Reaction. No comments have yet been filed with the FCC. However, the Progress and Freedom Foundation (PFF) will host a panel discussion on Capitol Hill on February 16, 2007, titled "Allocating the Electromagnetic Spectrum: A Discussion of the M2Z Proposal".

The PFF wrote that "Late last spring, participants in a new business venture applied to the FCC for use of a portion of currently unlicensed spectrum. In return for use of the spectrum, M2Z Networks offered to provide certain public services, including free wireless broadband access to 95 percent of the U.S. population within ten years. Is such a proposal likely to be an efficient way of increasing U.S. broadband penetration, or will it undermine the now-accepted method of allocating spectrum by auction?" See, PFF release and registration page.

TLJ spoke with Harold Feld of the Media Access Project (MAP). He stated that "this looks like a very realistic proposal", and that it includes "a number of things that are very appealing". However, he expressed two concerns. First, there is the filtering of content. Second, there is the question of how to assure that M2Z would fulfill its public interest obligation once a license is granted. Nevertheless, he said that the MAP is "inclined to support" the application.

M2Z's Washington Team. John Muleta is a founder of M2Z, its CEO, and a Board Member. He was previously Chief of the FCC's Wireless Telecommunications Bureau (WTB). The WTB is now considering M2Z's application.

On November 20, 2006, Uzoma Onyeije, VP Regulatory Affairs of M2Z Networks, filed a letter the the FCC stating that the counsel of record for M2Z is now Erin Dozier of the Washington DC office of the law firm of Sheppard Mullin Richter & Hampton (SMRH).

Kenneth Ferree (SMRH) is also listed as one of M2Z's attorneys. He was previously Chief of the FCC's Media Bureau.

Kathleen Wallman is a Senior Advisor to M2Z. She was previously Chief of the FCC's Common Carrier Bureau. Wallman and former FCC Chairman William Kennard are members of the MAP Board of Directors. Also, Onyeije and Dozier both previously worked at the FCC.