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October 21, 2008, Alert No. 1,845.
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DOJ Issues Business Review Letter to RFID Consortium Re Patent Licensing

10/21. Thomas Barnett, Assistant Attorney General (AAG) in charge of the Department of Justice's (DOJ) Antitrust Division's (ATR) issued a business review letter to outside counsel to the RFID Consortium LLC.

This letter announces that the DOJ "has no present intention to take antitrust enforcement action" regarding the Consortium's proposed joint patent licensing arrangement.

The letter explains that "the Consortium's proposed pooling arrangement appears reasonably likely to yield efficiencies" and that it "includes safeguards reasonably tailored to minimize the risk of harm to competition by producers of products compliant with the Gen-2 standard or by technology holders and to minimize the risk of dampening innovation incentives".

Thomas BarnettBarnett (at right) stated in a release that "The proposed patent-licensing arrangement has the potential to speed up the commercialization of UHF RFID technology, to the benefit of competition and consumers, without harming competition or impeding innovation".

This DOJ release adds that "an organization may submit a proposed action to the Antitrust Division and receive a statement as to whether the Division will challenge the action under the antitrust laws".

On October 30, 2006, Thomas Barnett issued a business review letter to Robert Skitol, attorney for the VMEbus International Trade Association (VITA), that discloses the DOJ's views on SDOs and the standards development process. See also, DOJ release and story titled "DOJ Approves VITA Patent Policy" in TLJ Daily E-Mail Alert No. 1479, October 31, 2006.

FTC Authorizes Rambus to Receive Withheld Royalties

10/17. The Federal Trade Commission (FTC) released an order [PDF] in its administrative proceeding involving Rambus that authorizes it to receive withheld royalties.

Tom Lavell, General Counsel of Rambus, stated in a release that the FTC's just released order "confirms that we are able to receive the royalty payments that were withheld as a result of the Commission's prior orders ... With the FTC's orders vacated, we are able to receive the royalties that we negotiate in good faith with our licensees or prospective licensees."

This is an administrative antitrust proceeding regarding Rambus's participation in the JEDEC standards setting process and assertion of patent rights. In 2006, the FTC concluded that "Rambus's acts of deception constituted exclusionary conduct under Section 2 of the Sherman Act, and that Rambus unlawfully monopolized the markets for four technologies incorporated into the JEDEC standards in violation of Section 5 of the FTC Act." See, FTC's August 2, 2006, opinion [120 pages in PDF]. See also, story titled "FTC Holds That Rambus Unlawfully Monopolized Markets" in TLJ Daily E-Mail Alert No. 1,427, August 8, 2006, and story titled "FTC Files Administrative Complaint Against Rambus" in TLJ Daily E-Mail Alert No. 455, June 20, 2002.

But, on April 22, 2008, the U.S. Court of Appeals (DCCir) issued its opinion [24 pages in PDF] in Rambus v. FTC, setting aside the FTC's order. It remanded to the FTC. See, story titled "Court of Appeals Rules in Rambus v. FTC" in TLJ Daily E-Mail Alert No. 1,752, April 23, 2008.

On August 26, 2008, the Court of Appeals denied the FTC's petition for a rehearing en banc. And now, in the just released order, the FTC belatedly provides Rambus relief from its stay.

Prior to the Court of Appeals ruling the FTC wrote in a stay order that Rambus is permitted "to incur contingent contractual rights to consideration in excess of that permitted by the Final Order issued in this matter if the consideration were payable to Respondent only upon the issuance by the Commission of an order authorizing Respondent to receive such consideration."

The just released order provides that excess consideration means "fees, royalties, payments, judgments, and other consideration in excess of that permitted by ... the Final Order", and that its stay order is amended to allow Rambus to "receive Excess Consideration (and accrued interest) payable pursuant to any contingent contractual obligation". (Parentheses in original.)

The order is dated October 16, 2008. The FTC released the order on October 17, 2008. This proceeding is titled "In the Matter of Rambus, Incorporatated" and numbered FTC Docket No. 9302.

GAO Reports on Personal Identifying Information in Electronic Public Records

10/21. The Government Accounting Office (GAO) released a letter report [PDF], dated September 19, 2008, to Sen. Charles Schumer (D-NY) that references "Social Security Numbers Are Widely Available in Bulk and Online Records, but Changes to Enhance Security Are Occurring".

It states that "Various public records in the United States contain Social Security numbers (SSN) and other personal identifying information that could be used to commit fraud and identity theft." Then, "In electronic format, records can be made available through the Internet or easily transferred to other parties in bulk quantities."

The letter report states that the GAO surveyed 247 county record keepers, visited some offices, and conducted some interviews.

The letter report finds that "Many counties make public records that may contain Social Security numbers (SSNs) available in bulk to businesses and individuals in response to state open records laws, and also because private companies often request access to these records to support their business operations."

It continues that "Our sample allows us to estimate that 85 percent of the largest counties make records with full or partial SSNs available in bulk or online, while smaller counties are less likely to do so (41 percent). According to county officials and businesses we interviewed, SSNs are generally found in certain types of records such as property liens and appear relatively infrequently. However, because millions of records are available, many SSNs may be displayed ." (Footnote omitted.)

Tate Discusses Benefits of Network Management Practices

10/21. Federal Communications Commission (FCC) Commissioner Deborah Tate gave a speech [11 pages in PDF] in Athens, Greece, in which she compared FCC procedure to ancient Athenian democracy, asserted that the FCC has taken "a light-touch approach to broadband", and that it should continue to do so. She also spoke at length about network management practices (NMPs) of broadband service providers.

On August 1, 2008, the FCC adopted an order [67 pages in PDF], from which Tate dissented, asserting FCC authority to regulate NMPs, concluding that Comcast engaged in undue squelchment, and directing Comcast to take certain actions. See, story titled "FCC Asserts Authority to Regulate Network Management Practices" in TLJ Daily E-Mail Alert No. 1,805, August 4, 2008.

Deborah TateTate (at right) advocated or defended several types of network management practices by broadband service providers in her Athens speech.

"Rather than concentrating on 5% of the heaviest bandwidth users," said Tate, "we should be ensuring that the 95% of ordinary subscribers are not negatively impacted". She explained that "95% of people may suffer slowdowns due to a small handful of individuals using peer-to-peer software designed to complete gigantic data transfers as quickly as possible, without regard to others' internet experience. This presents a major problem for the average user on a cable broadband network, which are shared networks."

She said that "I believe that in addition to setting rules that are transparent, technologically-neutral, and economically efficient, regulators can play a key role in arbitrating disputes on how these rules should be applied."

The FCC has not adopted any rules, within the meaning of the Administrative Procedure Act, regarding NMPs. The FCC's August Comcast order was issued in a quasi-adjudicative proceeding. The FCC asserted as authority the FCC's August 2005 document [3 pages in PDF] titled "Internet Policy Statement". Tate referred to the contents of this document as "principles".

She also said that "Regulators can help facilitate discussion by helping the parties come to the table to come up with a solution".

And, she said that "Perhaps the best way for regulators and governments around the world facing this issue is continue to help facilitate agreements among the broadband industry".

Tate then reviewed some of the other beneficial uses of NMPs. "Network management has a very positive role when it comes to eliminating online piracy and online child pornography."

She continued that "This summer, the majority of America's cable broadband providers signed an industry-wide agreement to fight child pornography on their networks. An example of the benefits of network management in action, this was an important step in the fight". See, story titled "NCTA and NCMEC Announce MOU Regarding Porn on Cable Company Controlled Servers" in TLJ Daily E-Mail Alert No. 1,795, July 18, 2008.

She added that "we must ensure that our children are safe when using the Internet. ... Online predators, cyber bullying, and other concerns are very real health and safety threats to our children.

She also discussed the benefits of intellectual property protection. First, she advocated waging a "War Against Piracy" of digital music and movies.

She also said that "We must address the theft of copyrighted software now. ... Without protection, there is no incentive to innovate."

She concluded, "I encourage everyone not only in the network management debate ... to develop tools ... to help enforce our existing laws".

She also stated that "Deep Packet Inspection" or "DPI can play a valuable role in making the internet a better and safer place, especially as it relates to illegal behavior", such as in "identifying and eliminating child pornography".

However, she criticized "intrusive techniques", such as "DPI to intrusively examine a person's web traffic so they can better target advertisements to the user".

Paulson Discusses Trade with PR China

10/21. Henry Paulson, the Secretary of the Treasury, gave a speech regarding U.S. trade relations with the People's Republic of China.

He praised the accomplishments of the US/PRC Strategic Economic Dialogue (SED), and stated that "I hope that the next U.S. president will expand on the SED to take U.S.-Chinese relations to the next level."

Henry PaulsonPaulson (at left) said that "A stable, prosperous and peaceful China is in the best interest of the Chinese people, the American people and the rest of the world."

He touched briefly on intellectual property. He said that "we will work even harder to resolve a critical issue for American companies working in China -- better enforcement of intellectual property laws, to help China on its path to become an innovation society, while accelerating the development and competitiveness of its economy."

He also advocated free trade. "Any dynamic economy that is constantly creating new, higher-value jobs faces factory closings and job losses that are real and painful. The benefits of free trade are often spread across an entire country, while the lost jobs are more immediately visible. But succumbing to the temptation to make trade and foreign investment a scapegoat only breeds support for isolationist policies that will make us worse off, sacrificing future job opportunities and higher standards of living."

Books

10/16. Lawrence Lessig wrote a book [Amazon] titled "Remix: Making Art and Commerce Thrive in the Hybrid Economy". Lessig is a professor at Stanford University law school. This 352 page book is on sale in hardback for $17.13 at Amazon.

People and Appointments

10/20. President Bush named Barrett Karr to be Deputy Assistant to the President for Legislative Affairs in the White House Office of Legislative Affairs. See, White House news office release.

More News

10/21. The Federal Trade Commission (FTC) released a report [70 pages in PDF] titled "President's Identity Theft Task Force Report".

10/21. Rep. John Dingell (D-MI) and Rep. Ed Markey (D-MA) sent a letter [PDF] to Meredith Baker, acting head of the National Telecommunications and Information Administration (NTIA) that propounds numerous interrogatories regarding government subsidization converter boxes, to be answered by October 31, 2008. Rep. Dingell is the Chairman of the House Commerce Committee (HCC). Rep. Markey is the Chairman of the HCC's Subcommittee on Telecommunications and the Internet.

10/17. The Federal Communications Commission (FCC) filed a brief [114 pages in PDF] with the U.S. Court of Appeals (10thCir) in Sorenson Communications v. FCC and USA, petitions for review of two FCC declaratory rulings regarding Telecommunications Relay Services (TRS). First, the FCC adopted a Report and Order and Declaratory Ruling on October 26, 2007, and released the text [67 pages in PDF] on November 19, 2009. It is FCC 07-186 in CG Docket No. 03-123. Second, the FCC adopted and released a second Declaratory Ruling [PDF] on May 28, 2008. It is FCC 08-138 in CG Docket No. 03-123. This case is Sorenson Communications, Inc., et al. v. FCC and USA, U.S. Court of Appeals for the 10th Circuit, App. Ct. Nos. 08-9503, 08-9507, 08-9545, 08-9547, and 08-9550, petitions for review of final orders of the FCC.

10/17. The Federal Communications Commission (FCC) filed a brief [114 pages in PDF] with the U.S. Court of Appeals (DCCir) in Globalstar v. FCC, a petition for review of an FCC order regarding reallocation of spectrum in the Big LEO band. The FCC adopted its Second Order On Reconsideration on November 7, 2007, and released the text [28 pages in PDF] on November 9, 2007. It is FCC 07-194 in IB Docket No. 07-253 and IB Docket No. 02-364. This case is Globalstar, Inc. v. FCC and USA, U.S. Court of Appeals for the District of Columbia, App. Ct. No. 08-1046, a petition for review of a final order of the FCC.

In This Issue

This issue contains the following stories:
  DOJ Issues Business Review Letter to RFID Consortium Re Patent Licensing
  FTC Authorizes Rambus to Receive Withheld Royalties
  GAO Reports on Personal Identifying Information in Electronic Public Records
  Tate Discusses Benefits of Network Management Practices
  Paulson Discusses Trade with PR China

Washington Tech Calendar
New items are highlighted in red.
Tuesday, October 21

The House will not meet. Its next scheduled meeting is at 11:00 AM on January 3, 2009. See, HConRes 440.

The Senate will not meet.

10:00 AM - 4:00 PM. The U.S.-China Economic and Security Review Commission will hold a public meeting to work on its 2008 Annual Report to Congress. See, notice in the Federal Register, July 29, 2008, Vol. 73, No. 146, at Pages 43978-43979, and notice in the Federal Register, September 18, 2008, Vol. 73, No. 182, at Page 54205. Location: Conference Room 333, Hall of the States, 444 North Capitol St., NW.

9:00 AM - 3:00 PM. The U.S. Patent and Trademark Office's (USPTO) Trademark Public Advisory Committee (TPAC) will meet. See, agenda. Location: USPTO Headquarters, Paris Conference Room, Madison East 2nd Floor, 600 Dulany St., Alexandria, VA.

Wednesday, October 22

The Senate will not meet.

10:00 AM - 4:00 PM. The U.S.-China Economic and Security Review Commission will hold a public meeting to work on its 2008 Annual Report to Congress. See, notice in the Federal Register, July 29, 2008, Vol. 73, No. 146, at Pages 43978-43979, and notice in the Federal Register, September 18, 2008, Vol. 73, No. 182, at Page 54205. Location: Conference Room 333, Hall of the States, 444 North Capitol St., NW.

11:00 AM - 12:00 NOON. Laurie Flaherty (National Highway Traffic Safety Administration) will give a speech on the Department of Transportation's (DOT) role in 911 issues. See, Federal Communications Commission (FCC) notice [PDF]. Location: FCC, Commission Meeting Room, 445 12th St., SW.

6:00 - 8:15 PM. The Federal Communications Bar Association's (FCBA) State and Local Practice Committee will host a seminar titled "Regulatory Framework for VoIP: What is the State Role?" The first panel will cover "the technical aspects of the provision of VoIP services and the current state of regulatory oversight". The second panel will cover "open issues and when VoIP oversight should or is likely to go". See, notice and registration page. The price to attend varies. Location: Bingham McCutchen, 2020 K St., NW.

6:00 - 9:15 PM. The DC Bar Association will host a program titled "Copyright Law and Litigation". The speaker will be Kenneth Kaufman (Manatt Phelps & Phillips). The price to attend ranges from $80 to $115. For more information, contact 202-626-3488. See, notice. This event qualifies for continuing legal education (CLE) credits. Location: DC Bar Conference Center, B-1 Level, 1250 H St., NW.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Notice of Inquiry and Notice of Proposed Rulemaking (NOI/NPRM) regarding regulation of advertising sponsorship identification. This item is FCC 08-155 in MB Docket No. 08-90. This FCC adopted this item on June 13, 2008, and released the text [22 pages in PDF] on June 26, 2008. See, notice in the Federal Register, July 24, 2008, Vol. 73, No. 143, at Pages 43194-43200.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Second Further Notice of Proposed Rulemaking regarding assignment of Educational Broadband Service (EBS) spectrum in the Gulf of Mexico. The FCC adopted this item on March 18, 2008, and released the text [111 pages in PDF] on March 20, 2008. This item is FCC 08-03 in WT Docket Nos. 03-66, 03-67, and 02-68, IB Docket No. 02-364, and ET Docket No. 00-258. See, notice of extension of comment deadlines in Federal Register, July 8, 2008, Vol. 73, No. 131, at Pages 38955-38956.

Thursday, October 23

The Senate will meet in pro forma session.

8:30 AM - 5:30 PM. The U.S.-China Economic and Security Review Commission will hold a public meeting to work on its 2008 Annual Report to Congress, "if necessary". See, notice in the Federal Register, July 29, 2008, Vol. 73, No. 146, at Pages 43978-43979, and notice in the Federal Register, September 18, 2008, Vol. 73, No. 182, at Page 54205. Location: Conference Room 231, Hall of the States, 444 North Capitol St., NW.

1:45 - 3:30 PM. The American Enterprise Institute (AEI) will host a panel discussion titled the "Beyond November -- Trade Policy". See, notice. Location: AEI, 12th floor, 1150 17th St., NW.

Day one of a three day conference hosted by the American Intellectual Property Law Association (AIPLA) titled "2008 Annual Meeting". Location: Marriott Wardman Park, 2660 Woodley Park Road, NW.

TIME? The Federal Trade Commission's (FTC) Bureau of Competition's Premerger Notification Office will host a half day workshop on the basics of the premerger notification program. See, FTC release. Location: FTC, satellite building conference center, 601 New Jersey Ave., NW.

Deadline to submit comments to the Federal Trade Commission (FTC) in connection with its event titled "Transatlantic RFID Workshop on Consumer Privacy and Data Security". See, FTC release.

Friday, October 24

Day two of a three day conference hosted by the American Intellectual Property Law Association (AIPLA) titled "2008 Annual Meeting". Location: Marriott Wardman Park, 2660 Woodley Park Road, NW.

8:30 AM - 2:30 PM. The Computer and Communications Industry Association (CCIA) and Advanced Micro Devices (AMD) will host a one day conference titled "Antitrust Summit on Innovation and Competition Policy in High-Tech Markets". Prices vary. Breakfast and lunch will be served. See, CCIA notice. RSVP to Danielle Yates at dyates at ccianet dot org or 202-783-0070 ext. 122. Location: Knight Conference Center, Room 705/706, Newseum, 555 Pennsylvania Ave., NW.

8:30 AM - 5:30 PM. The U.S.-China Economic and Security Review Commission will hold a public meeting to work on its 2008 Annual Report to Congress, "if necessary". See, notice in the Federal Register, July 29, 2008, Vol. 73, No. 146, at Pages 43978-43979, and notice in the Federal Register, September 18, 2008, Vol. 73, No. 182, at Page 54205. Location: Conference Room 231, Hall of the States, 444 North Capitol St., NW.

12:00 NOON - 2:00 PM. The Free State Foundation (FSF) will host a panel discussion titled "Archaic Intercarrier Compensation and Universal Service Regimes: Proposals for Reform". The speakers will be Gerald Brock (George Washington University), John Mayo (Georgetown University business school), and Deborah Tate (FCC Commissioner). Lunch will be served. This event is free and open to the public. RSVP to Susan Reichbart at sreichbart at freestatefoundation dot org. Location: Room 2322, Rayburn Building, Capitol Hill.

12:15 - 1:45 PM. The Federal Communications Bar Association's (FCBA) Legislative Practice Committee will host a brown bag lunch titled "Major Issues in Telecommunications in the 111th Congress". The speakers may include Gregg Rothschild (Deputy Chief of Staff and Chief Counsel of the House Commerce Committee), Perry Apelbaum (Chief Counsel, Staff Director, House Judiciary Committee), Neil Fried (Senior Minority Counsel, House Commerce Committee; and David Whitney (Minority Counsel, Subcommittee on Courts, the Internet and Intellectual Property). This event is free. See, registration page. Location: Sidley Austin, 1501 K Street, NW, 6th Floor.

12:30 PM. Dan Hesse, CEO of Sprint Nextel, will give a speech. Location: Ballroom, National Press Club, 13th Floor, 529 14th St., NW.

12:30 - 1:45 PM. The Federal Communications Bar Association's (FCBA) HLS/Emergency Communications, Wireless and Wireline Practice Committees will host a brown bag lunch titled "From Katrina to Ike and Beyond: Hurricane Responses of Emergency Communications Providers". The speakers will be Jennifer Manner (Satellite Industry Association), Robert Mayer (USTelecom), and Christopher Guttman-McCabe (CTIA). This event is free. See, notice and registration page. Location: Wilmer Hale, 1875 Pennsylvania Ave., NW.

Deadline to submit comments to the Federal Trade Commission (FTC) in connection with its October 17 public workshop titled "Prohibition of Unfair Methods of Competition In Section 5 of the Federal Trade Commission Act". See, notice in the Federal Register, August 28, 2008, Vol. 73, No. 168, at Pages 50818-50819.

Deadline to submit comments to the Office of the U.S. Trade Representative (OUSTR) regarding the request of the U.S., Japan, and Taiwan to the World Trade Organization (WTO) for the establishment of a dispute settlement panel regarding European Union tariff treatment of set-top boxes with a communication function, flat panel displays, and certain multifunctional digital machines. See, notice in the Federal Register, September 22, 2008, Vol. 73, No. 184, at Pages 54640-54642.

Saturday, October 25

Day three of a three day conference hosted by the American Intellectual Property Law Association (AIPLA) titled "2008 Annual Meeting". Location: Marriott Wardman Park, 2660 Woodley Park Road, NW.

Monday, October 27

8:30 AM - 1:30 PM. The National Science Foundation's (NSF) President's Committee on the National Medal of Science will hold a closed meeting to consider nominations. See, notice in the Federal Register, September 12, 2008, Vol. 73, No. 178, at Pages 53051-53052. Location: NSF, Room 375, 4201 Wilson Blvd., Arlington, VA.

4:30 - 6:30 PM. The American Enterprise Institute (AEI) will host a review titled the "Supreme Court's 2007 and 2008 Terms". See, notice. Location: AEI, 12th floor, 1150 17th St., NW.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Further Notice of Proposed Rulemaking (FNPRM) regarding assessment and collection of regulatory fees for Fiscal Year 2008. This item is FCC 08-182 in MD Docket No. 08-65. This FCC adopted this item on on August 1, 2008 and released the text [90 pages in PDF] on August 8, 2008. See, notice in the Federal Register, August 26, 2008, Vol. 73, No. 166, at Pages 50285-50296.

Tuesday, October 28

9:00 AM - 5:15 PM. The Department of Energy's (DOE) Advanced Scientific Computing Advisory Committee (ASCAC) will meet. See, notice in the Federal Register, October 16, 2008, Vol. 73, No. 201, at Page 61412. Location: Hilton Washington DC North, 620 Perry Parkway, Gaithersburg, MD.

10:00 AM. The Federal Communications Commission's (FCC) Advisory Committee on Diversity for Communications in the Digital Age will meet. See, notice in the Federal Register, October 16, 2008, Vol. 73, No. 201, at Pages 61419-61420. Location: FCC, Commission Meeting Room, 445 12th St., SW.

6:00 - 8:00 PM. The Federal Communications Bar Association's (FCBA) Mass Media and Engineering and Technical Practice Committees will host a seminar titled "The Final 100 Days Until the DTV Transition: Ready? Set? Go!!!". The speakers will be David O'Connor (Wilkinson Barker Knauer), John Burgett (Wiley Rein), Jack Goodman (Wilmer Hale), Eloise Gore (FCC), Dianne Smith (Fox Television Stations), Parul Desai (Media Access Project), Jonathan Collegio (National Association of Broadcasters), Mark Lloyd (Leadership Conference on Civil Rights), Cathy Seidel (FCC), and Dennis Wallace (Meintel Sgrignoli & Wallace). This event qualifies for continuing legal education credits. Prices vary. See, notice. Location: Wilmer Hale, 1875 Pennsylvania Ave., NW.

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