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April 4, 2007, Alert No. 1,560.
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Antitrust Modernization Commission Releases Report

4/3. The Antitrust Modernization Commission (AMC) released its report titled "Antitrust Modernization Commission: Report and Recommendations: April 2007". See, entire report [540 pages in PDF, 2.1 MB] and AMC release [3 pages in PDF].

The Antitrust Modernization Commission Act of 2002, which is now Public Law  No. 107-273, created the AMC, and mandated this report.

The report finds that the antitrust laws are basically sound, but offers some recommendations for change.

The AMC also published the report in its web site, broken down by components and chapters. See,

The AMC wrote in a letter to the President and Congress that its report "is fundamentally an endorsement of free-market principles. These principles have driven the success of the U.S. economy and will continue to fuel the investment and innovation that are essential to ensuring our continued welfare. They remain as applicable today as they ever have been. Free trade, unfettered by either private or governmental restraints, promotes the most efficient allocation of resources and greatest consumer welfare."

The report recommends against changing key antitrust statutes. It recommends that "No statutory change is recommended with respect to Section 7 of the Clayton Act", which governs merger reviews. Moreover, "Congress should not amend Section 2 of the Sherman Act", which addresses single firm conduct. It adds that "Standards currently employed by U.S. courts for determining whether single-firm conduct is unlawfully exclusionary are generally appropriate."

The report also addresses innovation and patents. It states that "There is no need to revise the antitrust laws to apply different rules to industries in which innovation, intellectual property, and technological change are central features". See, related story in this issue titled "AMC Addresses Innovation".

The report does criticize those sectoral regulatory agencies, such as the Federal Communications Commission (FCC), that unnecessarily conduct duplicative and dilatory antitrust merger reviews. It recommends Congressional action. See, related story in this issue titled "AMC Seeks End to Duplicative FCC Antitrust Merger Reviews".

The report also recommends that the "Congress should evaluate whether the filed-rate doctrine should continue to apply in regulated industries and consider whether to overrule it legislatively where the regulatory agency no longer specifically reviews proposed rates."

The Department of Justice's (DOJ) Antitrust Division and the Federal Trade Commission (FTC) are also conducting their own joint review of one aspect of antitrust law -- single firm conduct.

The DOJ stated in a release that the AMC's "review process has been exemplary and that its report contains valuable analyses of U.S. antitrust laws and enforcement procedures". The DOJ praises the AMC for making free market competition the basis of economic policy.

The DOJ added that "The core antitrust laws -- Sherman Act sections 1 and 2 and Clayton Act section 7 --and their application by the courts and federal enforcement agencies are sound and appropriately safeguard the competitiveness of the U.S. economy."

AMC Addresses Innovation

4/3. The Antitrust Modernization Commission (AMC) released its report titled "Antitrust Modernization Commission: Report and Recommendations: April 2007". Much of this report focuses on the application of antitrust principles to innovation, patents, and new technologies -- especially information technologies. The report recommends that there is no need to revise antitrust law for new technologies.

See, entire report [540 pages in PDF, 2.1 MB] and AMC release [3 pages in PDF].

The report states that "competition in the twenty-first century increasingly involves innovation, intellectual property, technological change, and global trade."

"In many high-tech sectors of the economy, firms must constantly innovate to keep pace in markets in which product life cycles are counted in months, not years. To protect their innovations, firms may rely on intellectual property. In some cases, intellectual property assets may be more important to businesses than specialized manufacturing facilities." (Footnote omitted.)

The report continues that "As the nature of competition evolves, so must antitrust law." However, the report recommends few changes to antitrust law in the context of innovation, technology, and IPR.

First, the AMC report recommends that "There is no need to revise the antitrust laws to apply different rules to industries in which innovation, intellectual property, and technological change are central features."

It adds that "In industries in which innovation, intellectual property, and technological change are central features, just as in other industries, antitrust enforcers should carefully consider market dynamics in assessing competitive effects and should ensure proper attention to economic and other characteristics of particular industries that may, depending on the facts at issue, have an important bearing on a valid antitrust analysis."

Moreover, the AMC recommends that "No substantial changes to merger enforcement policy are necessary to account for industries in which innovation, intellectual property, and technological change are central features."

However, it does recommend that "the agencies and courts should give greater credit for certain fixed-cost efficiencies, such as research and development expenses, in dynamic, innovation-driven industries where marginal costs are low relative to typical prices." It also recommends that the antitrust agencies "should give substantial weight to evidence demonstrating that a merger will enhance consumer welfare by enabling the companies to increase innovation".

Finally, it recommends that the agencies "should update the Merger Guidelines to explain more extensively how they evaluate the potential impact of a merger on innovation."

With respect to single firm conduct, the report recommends that "Standards currently employed by U.S. courts for determining whether single-firm conduct is unlawfully exclusionary are generally appropriate. Although it is possible to disagree with the decisions in particular cases, in general the courts have appropriately recognized that vigorous competition, the aggressive pursuit of business objectives, and the realization of efficiencies not available to competitors are generally not improper, even for a ``dominant´´ firm and even where competitors might be disadvantaged.

The Department of Justice's (DOJ) Antitrust Division issued a release that praises the AMC report. It states that "New or different rules are not needed for industries in which innovation, intellectual property, and technological innovation are central features. Unlike some other areas of the law, the core antitrust laws are general in nature and have been applied to many different industries to protect free-market competition successfully over a long period of time despite changes in the economy and the increasing pace of technological advancement. One of the great benefits of the Sherman and Clayton Acts is their adaptability to new economic conditions without sacrificing their ability to protect competition."

AMC Seeks End to Duplicative FCC Antitrust Merger Reviews

4/3. The Antitrust Modernization Commission (AMC) released its report titled "Antitrust Modernization Commission: Report and Recommendations: April 2007". The report argues that there should not be duplicative antitrust merger reviews at sectoral regulatory agencies. See, entire report [540 pages in PDF, 2.1 MB] and AMC release [3 pages in PDF].

The report does not single out the Federal Communications Commission (FCC), or its antitrust merger reviews, which often duplicate reviews conducted by the FTC or DOJ, impose substantial delays, and allow the FCC to pursue a wide variety of policy objectives.

Financial regulators have merger authority with respect to banks, the Federal Energy Regulatory Commission has merger authority with respect to electricity, and the Surface Transportation Board has merger authority with respect to rails. However, the history of recent FCC merger reviews presents the strongest case for limiting duplication of reviews. Also, the reports' emphasis on new technologies suggests that the AMC had FCC mergers more in mind than railroad mergers.

The report recommends that "For mergers in regulated industries, the relevant antitrust agency should perform the competition analysis. The relevant regulatory authority should not re-do the competition analysis of the antitrust agency." (See, page 23.)

The report explains that "Merger review by two federal agencies can impose significant and duplicative costs on both the merging parties and the agencies", and that "The antitrust agencies have unique expertise in evaluating the likely competitive effects of mergers. Therefore, the antitrust agencies should be responsible for analysis of the likely competitive effects of mergers in regulated industries." (See, pages 364-5.)

The report argues that "The recommended approach would ensure competition policy and enforcement consistency, limit inefficiencies and delays associated with overlapping enforcement, align competition policy assessments across industries regardless of the existence of different regulatory agencies, facilitate transparency in decision-making, and allow the antitrust agencies to act where they have a comparative advantage. It would also limit duplicative expenditure of resources and an inefficient allocation of scarce government resources, particularly where an industry regulator disregards the antitrust agency’s analysis." (Footnote omitted.)

The report also recommends that the "Congress should periodically review all instances in which a regulatory agency reviews proposed mergers or acquisitions under the agency’s ``public interest´´ standard to determine whether in fact such regulatory review is necessary." (See, page 23.)

The report also states that "In its reevaluation, Congress should consider whether particular, identified interests exist that an antitrust agency’s review of the proposed transaction's likely competitive effects under Section 7 of the Clayton Act would not adequately protect. Such ``particular, identified interests´´ would be interests other than those consumers' interests -- such as lower prices, higher quality, and desired product choices -- served by maintaining competition."

The Congress is unlikely to stop the FCC from conducting duplicative antitrust merger reviews. First, shortly after the FCC invented its antitrust merger review process after enactment of the Telecommunications Act of 1996, there were efforts in the Congress to limit this activity. The efforts gained no traction, and no legislation was enacted.

Secondly, many in Congress find it in their self-interest for there to be antitrust merger reviews at the FCC. The Congress has more influence over the actions of the FCC than over the antitrust activities of the FTC and DOJ. The FCC is a more political and manipulable entity. The FCC's merger reviews enhance the ability of members of Congress to pursue their goals.

For example, at the March 14, 2007, hearing of the House Commerce Committee's (HCC) Subcommittee on Telecommunications and the Internet Rep. John Dingell (D-MI), the Chairman of the HCC, stated that the FCC is an arm of the Congress. Commissioner Jonathan Adelstein affirmatively stated that the FCC is an arm of the Congress.

The FCC's invention of antitrust merger review authority also worked a shift of power within the Congress. It increased the power of the FCC's oversight committees, the HCC and the Senate Commerce Committee (SCC). Many HCC and SCC members would be opponents of any legislative proposals to end FCC antitrust merger review authority.

The AMC's report does not stop at duplicative antitrust merger reviews. It addresses all industry specific economic regulation. The report recommends that "Public policy should favor free-market competition over industry-specific regulation of prices, costs, and entry. Such economic regulation should be reserved for the relatively rare cases of market failure, such as the existence of natural monopoly characteristics in certain segments of an industry, or where economic regulation can address an important societal interest that competition cannot address."

The AMC states that "In general, Congress should be skeptical of claims that economic regulation can achieve an important societal interest that competition cannot achieve."

The AMC's recommendations do not use the words "network neutrality regulation".

IRS Reports Loss of Another 490 Computers

4/4. The Senate Finance Committee announced that it will hold a hearing "next week" on identity theft and fraudulent tax returns.

This follows the March 23, 2007, report of the Internal Revenue Service's (IRS) Treasury Inspector General for Tax Administration's (TIGTA) titled "The Internal Revenue Service Is Not Adequately Protecting Taxpayer Data on Laptop Computers and Other Portable Electronic Media Devices".

Sen. Charles GrassleySen. Chuck Grassley (R-IA) (at right), the ranking Republican on the Senate Finance Committee, stated in a release that "Thieves are very good at mining sensitive data for their own end. One stolen IRS laptop could put thousands of taxpayers in jeopardy. It’s hard to see why this is still a problem when the IRS knew about it more than three years ago. A Finance Committee hearing next week will look at identity theft and fraudulent tax returns. I plan to ask what the IRS is doing to fix this problem for good."

This report states that it "presents the results of our review to determine whether the Internal Revenue Service (IRS) is adequately protecting sensitive data on laptop computers and portable electronic media devices."

It finds that "IRS employees reported the loss or theft of at least 490 computers between January 2, 2003, and June 13, 2006."

Moreover, the report states that "111 incidents occurred within IRS facilities". This implies that there is widespread criminal activity by IRS employees that also threatens the data confidentiality and individual privacy.

There is little new in this report, other than that historic trends at the IRS have continued in recent years. See, story titled "Sen. Grassley Condemns IRS for 2,300 Missing Computers" in TLJ Daily E-Mail Alert No. 342, January 9, 2002; story titled "IRS Loses More Computers, Jeopardizes Taxpayer Info" in TLJ Daily E-Mail Alert No. 493, August 16, 2002; story titled "GAO Report Finds That Computer Weaknesses At IRS Put Taxpayer Data At Risk" in TLJ Daily E-Mail Alert No. 673, June 4, 2003; and story titled "IRS Data Vulnerable" in TLJ Daily E-Mail Alert No. 145, March 16, 2001.

The TIGTA report continues that "We found limited definitive information on the lost or stolen computers, such as the number of taxpayers affected, when we conducted our review. However, we conducted a separate test on 100 laptop computers currently in use by employees and determined 44 laptop computers contained unencrypted sensitive data, including taxpayer data and employee personnel data. As a result, we believe it is very likely a large number of the lost or stolen IRS computers contained similar unencrypted data."

The report elaborates that "Employees did not follow encryption procedures because they were either unaware of security requirements, did so for their own convenience, or did not know their own personal data were considered sensitive. We also found other computer devices, such as flash drives, CDs, and DVDs, on which sensitive data were not always encrypted."

The TIGTA also found security weaknesses at offsite facilities used for storage of backup data. It states that "Backup data were not encrypted and adequately protected at the four sites. For example, at one site, non-IRS employees had full access to the storage area and the IRS backup media."

Rep. Markey Writes FCC Chairman Martin Regarding Universal Service

4/2. Rep. Ed Markey (D-MA), the Chairman of the House Commerce Committee's Subcommittee on Telecommunications and the Internet, sent a letter [PDF] to Kevin Martin, Chairman of the Federal Communications Commission (FCC), regarding the FCC's universal service tax and subsidy programs.

Rep. Ed MarkeyRep. Markey (at right) expressed his support for the e-rate program, but questioned the way the FCC is implementing subsidies in high cost areas. He submitted numerous questions.

He wrote, "I am concerned, however, that rules adopted several years ago by the Commission to implement the 1996 Act's universal service provisions seem less focused on the best interests of consumers than on ensuring the financial well-being of particular companies operating in certain geographic markets.

He added that "the central purpose of the universal service provisions of the 1996 Act is to benefit consumers, not telecommunications carriers."

"Yet", wrote Rep. Markey, the FCC's "implementation of the 1996 Act appears to have allowed a certain class of carriers to use high cost support as a shield against the positive effects of competition. The net result is a universal service fund that has grown, not shrunk, from $1.8 billion in 1997 to $7.2 billion in 2007. This explosive growth is largely attributed to an expansion of the high cost program, which unlike the other federal funding mechanisms for the ``E-rate´´ and rural health care, is not subject to a cap."

Rep. Markey also propounded six pages of written interrogatories to be answered by May 4, 2007. These questions, which are appended to the letter, request information about universal service taxes, universal service subsidies, reverse auctions, and the e-rate program.

Washington Tech Calendar
New items are highlighted in red.
Wednesday, April 4

The House will not meet on April 2-6 or 9-13. See, House 2007 calendar. The next meeting will be at 2:00 PM on April 16.

The Senate will not meet on April 2-6 or 9. See, Senate 2007 calendar. The next meeting will be at 10:00 AM on April 10.

9:00 - 10:30 AM. The Information Technology and Innovation Foundation (ITIF) will host a breakfast forum titled "Understanding the Japanese Broadband Miracle". The speaker will be Takashi Ebihara, Senior Director of the Corporate Strategy Department at NTT East Corporation. RSVP to Torey Liepa at tliepa at itif dot org. Location: ITIF, Suite 200, 1250 I Street, NW.

10:00 AM. The Securities and Exchange Commission (SEC) will hold a meeting to discuss the Public Company Accounting Oversight Board's (PCAOB) proposed auditing standard for Section 404 of the Sarbanes-Oxley Act and the coordination of that proposed standard with the SEC's related pending proposal to provide guidance for management of public companies implementing Section 404. See, SEC release and release. Location: SEC, Auditorium, Room L-002, 100 F St., NW.

Thursday, April 5

2:00 PM. The U.S. Court of Appeals (FedCir) will hear oral argument in E-Pass Technologies v. Microsoft, App. Ct. No. 2006-1604. Location: Courtroom 201, 717 Madison Place, NW.

Deadline to submit initial comments to the Federal Communications Commission (FCC) regarding its Second Further Notice of Proposed Rulemaking pertaining to aviation radio. The FCC adopted this item on October 4, 2006, and released it on October 10, 2006. This item is FCC 06-148 in WT Docket No. 01-289. See, notice in the Federal Register, December 6, 2006, Vol. 71, No. 234, at Pages 70710-70715.

Friday, April 6

Good Friday.

9:00 AM - 12:00 NOON. The National Science Foundation's (NSF) Mathematical and Physical Sciences Advisory Committee will meet. The event will also be teleconferenced. See, notice in the Federal Register, March 9, 2007, Vol. 72, No. 46, at Page 10792. Location: NSF, Room 1235, 4201 Wilson Boulevard, Arlington, VA.

5:00 PM. Deadline to submit applications to the Department of Commerce's (DOC) National Telecommunications and Information Administration's (NTIA) Public Telecommunications Facilities Program (PTFP) for FY 2007 PTFP grants. See, NTIA notice and notice in the Federal Register, March 7, 2007, Vol. 72, No. 44, at Pages 10172-10173.

Sunday, April 8


Monday, April 9

Deadline to submit affidavits to the Copyright Office (CO) to assist it in compiling a new specialty station list "to identify commercial television broadcast stations which, according to their owners, qualify as specialty stations for purposes of the former distant signal carriage rules" of the Federal Communications Commission (FCC). This list is relevant to the cable compulsory license, which is codified at 17 U.S.C. § 111. The CO requests that "all interested owners of television broadcast stations that qualify as specialty stations, including those that previously filed affidavits, to submit sworn affidavits to the Copyright Office stating that the programming of their stations meets the requirements specified under the FCC regulations in effect on June 24, 1981." See, notice in the Federal Register, February 8, 2007, Vol. 72, No. 26, at Pages 6008-6010.

Deadline to submit reply comments to the Federal Communications Commission (FCC) regarding AT&T's petition for forbearance from enforcement of certain FCC cost assignment rules. See, Public Notice [3 pages in PDF] (DA 07-731). This proceeding is WC Docket No. 07-21.

Deadline to submit reply comments to the Federal Communications Commission (FCC) regarding the license transfer application filed by News Corporation, Directv Group, Inc., and Liberty Media Corporation. News Corps seeks to divest its interest in Directv, and Liberty Media seeks to divest its interest in News Corp. See, FCC Public Notice [PDF]. This is DA 07-637 in MB Docket No. 07-18.

Tuesday, April 10

The Senate will return from recess at 10:00 AM.

10:00 AM. The Senate Commerce Committee will hold an oversight hearing on the Federal Trade Commission (FTC). See, notice. Location: Room 253, Russell Building.

1:30 - 4:30 PM. The Department of Homeland Security's (DHS) National Infrastructure Advisory Council (NIAC) will hold a meeting. The agenda includes "The Insider Threat to Critical     Infrastructure Control Systems". The speakers include Thomas Noonan (General Manager, IBM Internet Security Systems). See, notice in the Federal Register, March 16, 2007, Vol. 72, No. 51, Pages 12625-12626. Location: National Press Club, 529 14th St., NW.

4:00 - 6:00 PM. The DC Chapter of the Copyright Society of the USA will host a panel discussion titled "User Generated Content: The Copyright Conundrum". The speakers will be Sarah Deutsche (Verizon), Alec French (NBC Universal), Peter Jaszi (American University law school), Mike Remington (Drinker Biddle & Reath), Steve Tapia (Microsoft), Fred von Lohmann (Electronic Frontier Foundation). Rob Kasunic (American Univ. and Copyright Office) will moderate. Location: American University Washington College of Law, 4801 Massachusetts Ave., NW.

6:00 PM. The Federal Communications Bar Association (FCBA) will host a dinner. The speaker will be FCC Chairman Kevin Martin. The reception begins at 6:00 PM. Dinner is at 7:30 PM. Prices range from $100 to $275. See, registration form [PDF]. Location: Hilton Hotel, 1919 Connecticut Ave., NW.

Wednesday, April 11

Day one of a two day meeting of the Department of Labor's Bureau of Labor Statistics' (BLS) Business Research Advisory Council. The agenda for the 1:00 PM session includes "Internet data collection". See, notice in the Federal Register, March 27, 2007, Vol. 72, No. 58, at Pages 14299-14300. Location: Conference Center of the Postal Square Building, 2 Massachusetts Ave., NE.

12:00 NOON - 3:00 PM. The Federal Communications Bar Association (FCBA) and the Stanford Institute for Economic Policy Research (SIEPR) will host a continuing legal education (CLE) seminar titled "Economic Analysis and FCC Decision-making". See, registration form [PDF]. Prices vary. This is a brown bag lunch. The deadline to register is 5:00 PM on April 6. Location: Hogan & Hartson, 13th floor, 555 13th St., NW.

12:00 NOON - 2:00 PM. The DC Bar Association's Intellectual Property Law Section will host a panel discussion titled "The Patent Office Speaks". The speakers will be John Doll (Commissioner of Patents, USPTO), Peggy Focarino (Deputy Commissioner for Patent Operations, USPTO), John Love (Deputy Commissioner for Patent Examination Policy, USPTO), and Maureen Browne (moderator, Heller Ehrman). See, notice. The price to attend ranges from $15-$35. For more information, call 202-626-4363. Location: Jurys Washington Hotel, 1500 New Hampshire Ave., NW.

2:30 PM. The Senate Judiciary Committee's (SJC) Subcommittee on the Constitution will hold a hearing titled "Responding to The Inspector General's Findings of Improper Use of National Security Letters by the FBI". Sen. Russ Feingold (D-WI) will preside. Location: Room 226, Dirksen Building.

Deadline to submit requests to the Department of Commerce's (DOC) Bureau of Industry and Security (BIS) to make presentations at the May 2, 2007 meeting of the BIS's Deemed Export Advisory Committee (DEAC) in Atlanta, Georgia. See, notice in the Federal Register: March 7, 2007, Vol. 72, No. 44, at Page 10141.

Grand Jury Indicts Four For Exporting Microprocessors to India

4/3. The Department of Justice (DOJ) disclosed that a grand jury of the U.S. District Court (DC) returned a 15 count indictment that charges Parthasarathy Sudarsham, Mythili Gopal, Akn Prasad, and Sampath Sundar with criminal violation of various export related laws in connection with the exportation of microprocessors to India.

The indictment alleges that the items exported in violation of law were all "electronic components". The indictment further describes these items as "Static Random Access Memory computer chips", "capacitor", "semi-conductor", "rectifier", "resistor", and "microprocessors". The indictment alleges that the ultimate destination of these items was the government of India.

The indictment alleges that the unlicensed export of these electronic components "posed a risk to the foreign policy and national security of the United States because of their significance for nuclear explosive purposes and for the delivery of nuclear devices."

The indictment alleges, among other things, violation of the federal export administration regulations (15 C.F.R. Parts 730-774), which implement the Export Administration Act, as expired.

Rep. Ed Markey (D-MA), stated in a release that "If the Indian government has attempted to circumvent U.S. export controls over sensitive missile technology, as is alleged in the indictment, then it has violated its explicit agreements to become a responsible international actor in the context of nonproliferation."

He added that "India has also long touted its strong military and space-launch cooperation with Iran, which raises the possibility that the sensitive U.S. missile technologies India has misappropriated may wind up benefiting Tehran. This would be absolutely unacceptable, and it would be treated as such by the Congress."

Rep. Markey is a co-chair of the House Bipartisan Task Force on Nonproliferation. Most of the members are Democrats.

More News

4/3. The U.S. Court of Appeals (FedCir) issued an order in In Re Advanced Micro Devices, denying AMD's and others' petition for writ of mandamus to direct the U.S. District Court (NDCal) to issue a protective order conditionally staying depositions of their CEOs. The underlying action in the District Court is Tessera's suit against AMD and the others alleging patent infringement and breach of license agreements. The Court of Appeals wrote that mandamus is only available only in extraordinary situations. This proceeding is In Re Advanced Micro Devices, Inc., et al., U.S. Court of Appeals for the Federal Circuit, App. Ct. Miscellaneous Docket No. 847, a petition for writ of certiorari to the U.S. District Court for the Northern District of California.

3/29. Eight federal regulatory agencies published a notice in the Federal Register that proposes to amend their rules implementing the privacy provisions of the Gramm Leach Bliley Act. This notice of proposed rulemaking contains a safe harbor model privacy form that financial institutions may use to provide disclosures under the privacy rules. The eight agencies are the Department of the Treasury's Office of the Comptroller of the Currency (OCC), Office of Thrift Supervision (OTS), Federal Reserve System (FRS), Federal Deposit Insurance Corporation (FDIC), National Credit Union Administration (NCUA), Federal Trade Commission (FTC), Securities and Exchange Commission (SEC), and Commodity Futures Trading Commission (CFTC). Comments are due by May 29, 2007. See, Federal Register, March 29, 2007, Vol. 72, No. 60, at Pages 14939-15000.

3/29. The Department of State announced that it has renewed the charter of the Advisory Committee on International Economic Policy. See, notice in the Federal Register, March 29, 2007, Vol. 72, No. 60 at Page 14848.

3/28. Hill Wellford, Counsel to the Assistant Attorney General in charge of the Department of Justice's (DOJ) Antitrust Division, gave a speech in Beijing, China, titled "Antitrust Issues in Standard Setting". He discussed how the DOJ applies antitrust law to ex ante patent policies within standards development organizations (SDOs), including the DOJ's October 30, 2006 business review letter to the VMEbus International Trade Association (VITA). See also, story titled "DOJ Approves VITA Patent Policy" in TLJ Daily E-Mail Alert No. 1,479, October 31, 2006.

3/28. The Federal Communications Commission (FCC) published a notice in the Federal Register that sets comment deadlines for its request to update the record in its equal access and nondiscrimination proceeding. The FCC issued its original Notice of Inquiry (NOI) in February of 2002. The FCC released a Public Notice (DA 07-1071) [PDF] on March 7, 2007. See, notice in the Federal Register, March 28, 2007, Vol. 72, No. 59, at Pages 14554-14555. This proceeding is CC Docket No. 02-39. The notice states that "there have been a number of intervening developments that may have rendered the record developed in this proceeding stale. In particular, the market appears to be shifting from competition between stand-alone long distance services to competition between service bundles including both local exchange and long distance services. The industry structure has also changed with the mergers of local and long distance providers."

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