10/21. The Federal Communications Commission (FCC) adopted and released a Report and Order [59 pages in PDF] in its proceeding titled "In the Matter of Implementation of the NET 911 Improvement Act of 2008".

This R&O adopts rules that implement HR 3403 [LOC | WW], the "NET 911 Improvement Act of 2008". President Bush signed this bill into law on July 23, 2008. It is now Public Law No. 110-283.

Prior to passage of this statute, the FCC adopted rules imposing 911 and E911 mandates on interconnected VOIP service providers, including location tracking, without a statutory mandate.

The FCC adopted its First Report and Order and Notice of Proposed Rulemaking [90 pages in PDF] on May 19, 2005. It released the text on June 3, 2005. That item was FCC 05-116 in WC Docket No. 04-36 and WC Docket No. 05-196. See also, stories titled "FCC Adopts Order Expanding E911 Regulation to Include Some VOIP Service Providers", "Summary of the FCC's 911 VOIP Order", "Opponents of FCC 911 VOIP Order State that the FCC Exceeded Its Statutory Authority", and "More Reaction to the FCC's 911 VOIP Order", in TLJ Daily E-Mail Alert No. 1,139, May 20, 2005. And see, story titled "FCC Releases VOIP E911 Order" in TLJ Daily E-Mail Alert No. 1,148, June 6, 2005.

The Congress then passed NET 911 Act. Hence, the FCC now acts with statutory authority.

This bill, and these rules, require that "IP enabled voice service providers" provide 911 and E911 functionality. In 2005 the FCC used the term "interconnected VoIP service providers". The bill states that the two terms have the same meaning.

The NET 911 Act creates a new section in the Communications Act titled "Duty to Provide 9-1-1 and Enhanced 9-1-1 Service". Subsection (a) of this new section provides that "It shall be the duty of each IP-enabled voice service provider to provide 9-1-1 service and enhanced 9-1-1 service to its subscribers in accordance with the requirements of the" FCC.

Subsection (b) provides that "An IP-enabled voice service provider that seeks capabilities to provide 9-1-1 and enhanced 9-1-1 service from an entity with ownership or control over such capabilities, to comply with its obligations under subsection (a), shall, for the exclusive purpose of complying with such obligations, have a right of access to such capabilities, including interconnection, to provide 9-1-1 and enhanced 9-1-1 service on the same rates, terms, and conditions that are provided to a provider of commercial mobile service ..."

The FCC's 2005 rules did not require ILECs to provide interconnection.

TheNET 911 Act also directed the FCC to promptly promulgate implementing regulations, by October 21, 2008, as the FCC has just done.

The NET 911 Act also provides for parity in immunity from liability. The FCC's 2005 rules did provide parity.

FCC Chairman Kevin Martin wrote in his statement [PDF] accompanying this R&O that "I am concerned, however, that today’s Order does not go far enough to ensure that mobile VoIP providers comply with our rules."

He explained that "I am troubled that today's decision could leave mobile VoIP customers without adequate 911 service when they roam outside their service providers’ footprint. In these instances, the service providers do not have access to ``last known cell´´ information that they may need to deliver the call to the appropriate local emergency operator and to provide accurate location information to the appropriate public safety officials. Consistent with the rest of the Order, I would have gone further, giving mobile VoIP providers access to ``last known cell´´ information so that they could comply with our rules without exception."

The just released item is FCC 08-249 in WC Docket No. 08-171.

10/24. Rep. John Dingell (D-MI), the Chairman of the House Commerce Committee (HCC), sent a letter [PDF] to the Federal Communications Commission (FCC) regarding a white space report and order, which the FCC might adopt at a meeting on November 4, 2008.

The FCC's tentative agenda for its meeting of November 4, 2008, lists consideration of a "A Second Report and Order and Memorandum Opinion and Order addressing unlicensed operation in the television broadcast bands".

Also, on October 15, 2008, the FCC's Office of Engineering and Technology (OET) released a report [146 pages in PDF] titled "Evaluation of the Performance of Prototype TV-Band White Space Devices Phase II".

The October 15 report states that "we believe that the burden of ``proof of concept´´ has been met. We are satisfied that spectrum sensing in combination with geo-location and database access techniques can be used to authorize equipment today under appropriate technical standards and that issues regarding future development and approval of any additional devices, including devices relying on sensing alone, can be addressed." See, story titled "FCC Releases White Space Report" in TLJ Daily E-Mail Alert No. 1,844, October 16, 2008.

The FCC has not released a copy or draft copy of the item to be considered at its November 4 meeting. Moreover, the FCC, in recent months, has not followed its tentative agendas.

Rep. Dingell (at right) wrote that "I am well aware that the development of appropriate rules for this spectrum could facilitate the deployment of wireless broadband devices across the country. This is especially true in rural areas, where there tend to be fewer over-the-air television stations. Facilitating the delivery of more and better broadband services to all Americans is of utmost importance to me, and it should be a top priority of the Commission."

However, he continued that "It is equally important to me, as it should also be to the Commission, that free, over-the-air television signals be adequately protected from harmful interference."

He elaborated that "It is vital that the Commission be able to identify devices that are causing interference and to rapidly and appropriately remedy harms to consumers.  While I understand that unlicensed devices have worked in other bands and have helped drive technological innovation, the public interest requires a more detailed and careful analysis when permitting unlicensed devices to operate in the broadcast television band."

He also propounded numerous interrogatories to be answered by the FCC by October 31, 2008.

10/24. The National Association of Broadcasters (NAB) and others filed with the Federal Communications Commission (FCC) on October 17, 2008, a document [PDF] titled "Emergency Request" in the FCC white space proceeding.

On October 15, 2008, the FCC's Office of Engineering and Technology (OET) released a report [146 pages in PDF] titled "Evaluation of the Performance of Prototype TV-Band White Space Devices Phase II". See, story titled "FCC Releases White Space Report" in TLJ Daily E-Mail Alert No. 1,844, October 16, 2008. The FCC's report is OET Report FCC/OET 08-TR-1005.

They asked the FCC to "issue a public notice seeking comment from members of the public on the 400-page OET report".

They wrote that "The OET's report provides detailed results of extensive laboratory and field tests of prototype white space devices. The underlying data contradict the conclusions that are made in the report, including the assertion that there has been a ``proof of concept´´ of spectrum-sensing devices. The data show that spectrum sensing cannot be used to determine accurately whether a television channel is occupied or vacant."

The entities joining in this request are the NAB, Association for Maximum Service Television, Inc. (MSTV), ABC, NBC, CBS, Fox, and the Open Mobile Video Coalition (OMVC).

Then, on October 22, the NAB and the others filed with the FCC a document [PDF] titled "Supplement to Emergency Request".

This filing states that "Certain white spaces proponents have made no secret of their antipathy -- indeed, hostility -- towards the public's television service."

It continues that "The end-game for these groups", such as the New America Foundation (NAF), "is, over the next few years, to increase the power of personal, portable devices to dangerously high levels, with complete disregard for the effects on the public’s television broadcasting service (as well as on licensed wireless microphone operations and cable)." (Parentheses in original.)

See also, notice [PDF] of ex parte communication filed on October 23, 2008, by Kathleen Abernathy (Wilkinson Barker & Knauer) who represents the MSTV in this proceeding. Abernathy was until recently an FCC Commissioner.

On October 24, 2008, the NAF's Michael Calbrese filed comment [PDF] with the FCC in response. He wrote that the NAB and others "falsely characterized my remarks". He added that "the broadcast lobby, in their desperation, has already squandered what was left of their credibility in this proceeding by attacking as well the integrity and motives" of the FCC's OET.

10/15. The U.S. Court of Appeals (FedCir) issued its opinion [31 pages in PDF] in In Re Ciprofloxacin Hydrochloride Antitrust Litigation, a case involving both patent and antitrust law.

The issue in this case is whether a settlement agreement between a drug patent holder and a generic manufacturer violates federal antitrust laws. The Court of Appeals wrote that "The agreements here involve a reverse payment from the patent holder to the generic manufacturer, but do not implicate the 180-day exclusivity period."

Large purchasers of the drug at issue filed complaints in U.S. District Courts against the patent holder, Bayer, and the generic manufacturers, alleging violation of Section 1 of the Sherman Act, and state antitrust laws.

These actions were consolidated in the U.S. District Court (EDNY). The District Court held that the agreements were within the exclusionary zone of the patent, and thus could not be redressed by federal antitrust law. Therefore, it granted summary judgment to parties to the agreements on the Sherman Act claims, and dismissed the state antitrust claims.

The Court of Appeals affirmed the judgment of the District Court.

The Federal Trade Commission (FTC) submitted an amicus brief [40 pages in PDF] urging reversal. It wrote that "In the Hatch-Waxman Act, Congress sought to speed the market entry of low-cost generic drugs by encouraging challenges to pharmaceutical patent claims that impermissibly stand in the way of entry."

"The present case involves a stratagem that a number of pharmaceutical companies have used to frustrate Congress's resolve to eliminate unwarranted patent obstacles to generic entry, namely, entering into agreements that allow them to block generic competition and share the profits derived from maintaining supracompetitive drug prices. Because the branded drug manufacturer's enhanced profits from the delayed generic entry typically far exceed the generic competitor's anticipated profits from entry, the parties to such an agreement can share a windfall- at the expense of consumers." This, the FTC argued, violates antitrust law.

This case is In Re Ciprofloxacin Hydrochloride Antitrust Litigation, U.S. Court of Appeals for the Federal Circuit, App. Ct. No. 2008-1097, an appeal from the U.S. District Court for the Eastern District of New York, D.C. No. 1:00-MD-01383, Judge David Trager presiding.

Judge Prost wrote the opinion of the Court of Appeals, in which Judges Schall and John Ward (USDC/EDTex, sitting by designation), joined.

Before her appointment to the Court of Appeals, Judge Prost was a long time aide to Sen. Orrin Hatch (R-UT).

This issue includes the following items:
 • FCC Adopts VOIP 911 Rules
 • Rep. Dingell Writes FCC Regarding Unlicensed Devices in the White Space
 • Broadcasters Seek Delay in White Space Proceeding
 • Federal Circuit Rules Antitrust and Patent Case

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

The Senate will meet in pro forma session.

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.

9:00 AM. The Department of Commerce's (DOC) Bureau of Industry and Security (BIS) will hold a public meeting to explain its proposed Intra-Company Transfer (ICT) rule. See, notice in the Federal Register, October 22, 2008, Vol. 73, No. 205, at Pages 62951-62952. November 17, 2008, is the deadline to submit comments to the BIS regarding its proposed rules changes. See, notice Federal Register, October 3, 2008, Vol. 73, No. 193, at Pages 57554-57564. Location: Location: Room 4830, Hoover Building, 14th St., between Constitution and Pennsylvania Aves., NW.

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.

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.

9:00 AM - 12:00 NOON. 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.

12:15 - 1:30 PM. The Federal Communications Bar Association's (FCBA) FCBA Foundation Scholarship Committee will host a brown bag lunch to plan. For more information, contact Erin Dozier at edozier at nab dot org or 202-775-4970. Location: National Association of Broadcasters (NAB), 1771 N St., NW.

8:00 AM. The Federal Aviation Administration's (FAA) Commercial Space Transportation Advisory Committee will meet. See, notice in the Federal Register, September 16, 2008, Vol. 73, No. 180, at Page 53477. Location: FAA headquarters building, Bessie Coleman Conference Center, 2nd floor, 800 Independence Ave., SW.

9:00 AM. The CompTIA will host an event titled "Tech Policy and the '08 Presidential Elections -- the Campaigns Debate". For more information, contact Tom Liszka at 202-543-3003 or TLiszka at comptia dot org. Location: Murrow Room, National Press Club, 13th Floor, 529 14th St., NW.

12:30 - 2:00 PM. The Federal Communications Bar Association's (FCBA) International Telecommunications Practice Committee will host a brown bag lunch titled "International Undersea Cables -- A Global Market Update/Overview (What’s Behind the New Wave of Planned Construction?)". The speaker will be Timothy Stronge (TeleGeography). For more information, contact Susan O'Connell at susan dot oconnell at fcc dot gov or 202-418-1484. RSVP by October 24 to Jennifer Ullman at Jennifer dot ullman at verizon dot com or 202-515-2432. Location: Verizon, 5th floor, Suite 400 West, 1300 I St., NW.

12:30 - 1:45 PM. The New America Foundation (NAF) will host an event titled "McCain v. Obama: The Technology Policy Smackdown". The speakers will be Douglas Holtz-Eakin (McCain campaign), Reed Hundt (Obama campaign), and Nicholas Thompson (NAF moderator). See, notice and registration page. Lunch will be served. Location: NAF, 7th floor, 1630 Connecticut Ave., NW.

Deadline to submit comments to the National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) regarding its SP 800-70 Rev. 1 [66 pages in PDF] titled "DRAFT National Checklist Program for IT Products -- Guidelines for Checklist Users and Developers".

Deadline to submit comments to the Copyright Royalty Judges regarding its proposed regulations that set the rates and terms for the use of musical works in limited downloads, interactive streaming and incidental digital phonorecord deliveries. See, notice in the Federal Register, October 1, 2008, Vol. 73, No. 191, at Pages 57033-57040.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in ClearValue v. Pearl River Polymers, Inc., App. Ct. No. 2007-1487, a patent infringement case. See, Federal Circuit oral argument calendar. Location: Courtroom 201, Federal Circuit courthouse, LaFayette Square, 717 Madison Place, NW.

Deadline to submit to the Office of the U.S. Trade Representative's (OUSTR) post hearing briefs in connection with the 2008 Generalized System of Preferences (GSP) Annual Review. See, notice in the Federal Register, September 12, 2008, Vol. 73, No 178, at Pages 53054-53056.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Third Further Notice of Proposed Rulemaking (3rdFNPRM) regarding its failed D block auction and its efforts to facilitate a nationwide interoperable broadband wireless network for public safety entities. The FCC adopted and released this 3rdFNPRM [237 pages in PDF] on September 25, 2008. See, story titled "FCC Adopts Further NPRM Regarding Public Safety Broadband Network" in TLJ Daily E-Mail Alert No. 1,832, September 25, 2008. This item is FCC 08-230 in WT Docket No. 06-150 and PS Docket No. 06-229. See, notice in the Federal Register, October 3, 2008, Vol. 73, No. 193, at Pages 57749-57851.

10/24. Christopher Wilson was named Assistant U.S. Trade Representative (AUSTR) for Europe and the Middle East in the Office of the U.S. Trade Representative (OUSTR). He was previously a Deputy AUSTR in the Office of Intellectual Property and Innovation. See, OUSTR release.

10/24. James Sanford was named Assistant U.S. Trade Representative (AUSTR) for the newly named and organized Office of Market Access and Industrial Competitiveness. It was previously named the Office of Industry, Market Access, and Telecommunications. Moreover, the OUSTR stated that "The telecommunications services portfolio will move to the Services and Investment Office." See, OUSTR release.

10/24. Thomas Barnett and Hill Wellford wrote an piece titled "The DOJ's Single-Firm Conduct Report: Promoting Consumer Welfare Through Clearer Standards for Section 2 of the Sherman Act". Barnett is the Assistant Attorney General in charge of the Department of Justice's (DOJ) Antitrust Division. Barnett is the Chief of Staff of the DOJ's Antitrust Division. See also, DOJ's September 8, 2008, report titled "Competition and Monopoly: Single-Firm Conduct Under Section 2 of the Sherman Act", and stories titled "Antitrust Division Releases Report on Single Firm Conduct" and "Three FTC Commissioners Criticize Single Firm Conduct Report" in TLJ Daily E-Mail Alert No. 1,827, September 17, 2008.

10/24. The National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) released a draft of its SP 800-57 Part 3 [103 pages in PDF] titled "Recommendation for Key Management, Part 3 Application-Specific Key Management Guidance". Comments are due by January 16, 2009.

10/22. The Federal Trade Commission (FTC) announced in a release that it will not enforce its Enforcement Policy Statement [PDF] regarding its Identity Theft Red Flags Rule until May 1, 2009. Its rules were previously set to take effect on November 1, 2008. The FTC stated that this extension will "give creditors and financial institutions additional time in which to develop and implement written identity theft prevention programs".

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