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December 24, 2009, Alert No. 2,027.
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Copyright Royalty Judges Announce NPRM on Webcaster Fees

12/23. The Copyright Royalty Judges (CRJ) published a notice in the Federal Register that announces, describes, recites, and sets the comment deadline for, its proposed rules regarding the statutory minimum fees to be paid by commercial webcasters under the statutory licenses codified at 17 U.S.C. § 112(e) and 17 U.S.C. § 114, permitting certain digital performances of sound recordings and the making of ephemeral recordings, for the period January 1, 2006, through December 31, 2010.

These rules would implement a settlement between the DiMA and SoundExchange. Comments and objections are due by January 22, 2010. See, Federal Register, December 23, 2009, Vol. 74, No. 245, at Pages 68214-68215.

The CRJ published a notice in the Federal Register on May 1, 2007, that announced and recited their final determination of the rates and terms for the two statutory licenses. See, Federal Register, May 1, 2007, Vol. 72, No. 83, at Pages 24083-24114.

Various commercial webcasters and groups, including the Digital Media Association (DiMA), and non-commercial broadcasters, filed appeals, which were consolidated. The U.S. Court of Appeals (DCCir) issued its opinion [40 pages in PDF] in Intercollegiate Broadcast System, Inc. v. Copyright Royalty Board, on July 10, 2009. It issued a revised opinion on August 7,2009. That opinion is also reported at 574 F.3d 748. The Court remanded the CRJ determination on the matter of the minimum fee to be paid by both commercial and noncommercial webcasters. That opinion did not overturn the royalty rates determination of the CRJ.

That case is Intercollegiate Broadcast System, et al. v. Copyright Royalty Board, appellee, and SoundExchange, Inc., intervenor, U.S Court of Appeals for the District of Columbia, App. Ct. Nos. 07-1123, 07-1168, 07-1172, 07-1174, 07-1177, and 07-1178. The Court of Appeals issued a per curiam opinion. The panel was comprised of Judges Sentelle, Rogers and Griffith.

On December 2, 2009, the DiMA and SoundExchange submitted a proposed settlement regarding the fees paid by commercial webcasters. The proposed rule would implement this settlement. This settlement does not address noncommerical webcasters. And, the CRJ have yet to make a determination on remand.

With respect to the minimum fee for commerical webcasters, the proposed rule provides that "Each Commercial Webcaster will pay an annual, nonrefundable minimum fee of $500 for each calendar year or part of a calendar year of the period 2006-2010 during which it is a Licensee pursuant to 17 U.S.C. 112(e) or 114. This annual minimum fee is payable for each individual channel and each individual station maintained by Commercial Webcasters, and is also payable for each individual Side Channel maintained by Broadcasters who are Commercial Webcasters, provided that a Commercial Webcaster shall not be required to pay more than $50,000 per calendar year in minimum fees in the aggregate (for 100 or more channels or stations). The minimum fee payable under 17 U.S.C. 112 is deemed to be included within the minimum fee payable under 17 U.S.C. 114. Upon payment of the minimum fee, the Commercial Webcaster will receive a credit in the amount of the minimum fee against any royalty fees payable in the same calendar year."

FCC Releases FNPRM Regarding High Universal Support

12/15. The Federal Communications Commission (FCC) adopted and released a Further Notice of Proposed Rulemaking (FNPRM) [25 pages in PDF] in its proceedings regarding universal service and the High-Cost Universal Service Support.

In this FNPRM the FCC reacts to the February 23, 2005 opinion [35 pages in PDF] of the U.S. Court of Appeals (10thCir) in Qwest v. FCC, which set aside the FCC's order setting a mechanism for providing high cost universal service support subsidies to non-rural telecommunications carriers under 47 U.S.C. § 254.

The opinion is also reported at 398 F.3d 1222. This case is Qwest Communications International, Inc. v. FCC and USA, et al., U.S. Court of Appeals for the 10th Circuit, App. Ct. Nos. 03-9617, 04-9518, and 04-9519, petitions for review of a final order of the FCC. See also, story titled "10th Circuit Rules in Qwest II" in TLJ Daily E-Mail Alert No. 1,090, March 8, 2005.

This FNPRM states that the FCC "should not attempt wholesale reform of the non-rural high-cost mechanism at this time". Rather, the FCC seeks comments "on certain interim changes to address the court’s concerns and changes in the marketplace".

This FNPRM further states that "The interim changes on which we seek comment today are designed to respond to the court’s concerns, while also taking into account the considerable changes in technology, the telecommunications marketplace, and consumer buying patterns that have occurred since we last modified our non-rural high-cost universal service support rules. We seek comment on what changes should be made to the Commission’s rules regarding the rate comparability review and certification process. Specifically, we seek comment on whether the Commission should define ``reasonably comparable´´ rural and urban rates in terms of rates for bundled local and long distance services. In addition, we seek comment on whether the Commission should require carriers to certify that they offer bundled local and long distance services at reasonably comparable rural and urban rates." (Footnotes omitted.)

Robert McDowellFCC Commissioner Robert McDowell (at left) wrote in his statement [PDF] that "that the substance of this FNPRM does not go far enough to answer some of the court’s fundamental questions regarding the non-rural high-cost mechanism. I recognize that the FNPRM cites the upcoming (and intervening) National Broadband Plan deadline of February 17, 2010, as the reason that the Commission does not use this FNPRM as an opportunity to explore reform options. Nevertheless, I do not think that the Commission’s work on the National Broadband Plan should foreclose the Commission from exploring a variety of reform ideas in this matter." (Parentheses in original.)

Commissioner Mignon Clyburn wrote in her statement [PDF] that the FCC should "immediately turn to the task of addressing wholesale reform of the Fund upon the release of the National Broadband Plan".

Commissioner Meredith Baker wrote in her statement [PDF] that "I am encouraged that the item states our intent to move forward with comprehensive reform in the wake of the National Broadband Plan".

Initial comments will be due within 30 days of publication of a notice in the Federal Register. Reply comments will be due within 45 days of such publication. As of the December 24, 2009, issue of the Federal Register this notice had not yet been published.

This FNPRM is FCC 09-112 in CC Docket No. 96-45 and WC Docket No. 05-337.

DC Circuit Denies Petition for Review of FCC Cap on High Cost Universal Service Subsidies

12/11. The U.S. Court of Appeals (DCCir) issued its opinion [24 pages in PDF] in Rural Cellular Association v. FCC, denying petitions for review of the FCC's 2008 Order [117 pages in PDF] setting a cap on the high cost universal service support subsidies given to competitive eligible telecommunications carriers.

This FCC program subsidizes service for high cost customers. The Court of Appeals noted that this program "increased by more than a billion dollars between 2001 and 2007".

Other universal service tax and subsidies programs not at issue in this matter include those for low income users, schools, libraries, and rural health clinics.

The FCC adopted this order on April 29, 2008, and released the text on May 1, 2008. See, story titled "FCC Adopts Cap on High Cost Universal Service Support" in TLJ Daily E-Mail Alert No. 1,760, May 5, 2008. This order is FCC 08-122 in WC Docket No. 05-337 and CC Docket No. 96-45.

The Rural Cellular Association (RCA) and wireless telephone service providers serving primarily small and rural markets filed petitions for review of this order. AT&T and Verizon intervened. See also, FCC's brief [PDF].

Steven Berry of the RCA stated in a release that "RCA would not have brought this case unless we were certain that the FCC's actions violated the Act and the Commission’s own universal service principles. The Court’s decision to give the FCC a heightened level of deference proved a bridge too far, but it does not change RCA's view on the merits. It’s ironic the court decision comes with the coincidental announcement that the USF contribution factor will rise to 14.1% in the first quarter of 2010; this confirms our view that wireless carriers -- which are capped -- are not driving fund growth.'

This case is Rural Cellular Association v. FCC and USA, AT&T and Verizon, intervenors, U.S. Court of Appeals for the District of Columbia, App. Ct. Nos. 08-1284 and 08-1285, petitions for review of a final order of the FCC Judge Brown wrote the opinion of the Court of Appeals, in which Judges Tatel and Williams joined.

District Court Approves Settlement of Class Action Comcast P2P Management Litigation

12/14. The U.S. District Court (EDPenn) entered an order [20 pages in PDF] approving the April 13, 2009, proposed class action settlement agreement [51 pages in PDF] in the litigation against Comcast regarding its network management practices affecting peer to peer applications.

The Court wrote that "The Proposed Settlement creates a $16 million settlement fund to pay all fees, expenses, and settlement payments and entitles each valid claimant to a payment of up to $16. .. The Proposed Settlement also provides for a $3 million fee award to class counsel. ... In addition, the Proposed Settlement releases Comcast from any future liability relating to its management of P2P or Lotus Notes prior to the effective date of the final settlement."

This case is In Re: Comcast Corp. Peer-To-Peer (P2P) Transmission Contract Litgation, U.S. District Court for the Eastern District of Pennsylvania, MDL No. 08-1992.

This class action litigation is related to a Federal Communications Commission (FCC) proceeding. See, FCC's August 2008 order [67 pages in PDF]. That order is the subject of a petition for review now pending before the U.S. Court of Appeals (DCCir). See, story titled "FCC Asserts Authority to Regulate Network Management Practices" in TLJ Daily E-Mail Alert No. 1,805, August 4, 2008. That FCC order is FCC 08-183 in Docket No. 07-52.

FCC National Broadband Plan News

12/21. Federal Communications Commission (FCC) Chairman Julius Genachowski gave a brief speech [PDF] at the FCC's hearing in Chicago, Illinois, regarding the drafting of a document titled "National Broadband Plan".

12/18. The Federal Communications Commission (FCC) released a Public Notice (PN) regarding "how government policies and programs create more effective incentives for private financing of deployment of broadband infrastructure in the country’s underserved and unserved areas". The FCC seeks information to assist it in drafting a document titled "National Broadband Plan". This PN asks about existing programs at the National Telecommunications and Information Administration (NTIA) and Rural Utilities Service (RUS), as well as "What new financing methods should be employed". It also asks about how new financing vehicles could be structured and administered. Finally, it asks "What would be the qualitative and quantitative impact on private behavior for different types of support (e.g., one-time grants, ongoing grants, loans, revolving loans, etc.)?" The deadline to submit comments is January 8, 2010. This PN is DA 09-2610 in GN Docket Nos. 09-47, 09-51, and 09-137.

12/17. Rep. Rick Boucher (D-VA), the Chairman of the House Commerce Committee's (HCC) Subcommittee on Communications, Technology and the Internet (SCTI), sent a letter [PDF] to the FCC in which he argued that the FCC's document titled "National Broadband Plan" should "promote substantially higher Internet speeds and higher capacity networks and should include two goals." The FCC "should seek universal availability of broadband" and "should explicitly endorse a goal for minimum broadband speeds, of at least 50 megabits downstream and 20 megabits upstream for 80 of the population by 2015". He cited the uses of "telemedicine, distance learning and telecommuting".

12/16. The Federal Communications Commission (FCC) released a document [35 pages in PDF] titled "National Broadband Plan Policy Framework". HR , the huge spending bill enacted in February of 2009, requires the FCC to draft a document titled "National Broadband Plan" by February 17, 2009. See also, FCC release [3 pages in PDF] and statement [5 pages in PDF] of FCC Chairman Julius Genachowski.

In This Issue
This issue contains the following items:
 • Copyright Royalty Judges Announce NPRM on Webcaster Fees
 • FCC Releases FNPRM Regarding High Universal Support
 • DC Circuit Denies Petition for Review of FCC Cap on High Cost Universal Service Subsidies
 • District Court Approves Settlement of Class Action Comcast P2P Management Litigation
 • FCC National Broadband Plan News
 • More News
Washington Tech Calendar
New items are highlighted in red.
Thursday, December 24

The House will not meet.

The Senate will meet at 6:45 AM.

POSTPONED. 10:00 AM. The Senate Judiciary Committee (SJC) may hold an executive business meeting. The agenda includes consideration of the nomination of Rogeriee Thompson to be a Judge of the U.S. Court of Appeals (1stCir). See, notice. Location: Room 226, Dirksen Building.

Deadline to submit comments to the Federal Trade Commission (FTC) regarding its consent agreement with Panasonic Corporation and Sanyo Electric Co. Ltd. regarding Panasonic's acquisition of Sanyo, subject to Sanyo's divestment of its assets relating to the manufacture and sale of portable NiMH batteries to FDK Corporation. See, notice in the Federal Register, December 1, 2009, Vol. 229, No. 74, at Pages 62778-62780.

Friday, December 25

Christmas Day. This is a federal holiday. See, Office of Personnel Management's (OPM) web page titled "2009 Federal Holidays".

The House will not meet.

The Senate will not meet.

Monday, December 28

The House will not meet the week of December 28 through January 1. See, Rep. Hoyer's release and release. See also, Section 11 of HRes 976 and HConRes 223.

The Senate will not meet. It will next meet on January 5, 2010, at 12:00 NOON in pro forma session.

Deadline to submit applications to Google for "Google Policy Fellowships" for the summer of 2010 at various public policy groups. See, Google notice, and story titled "Google to Fund Summer Internships at Tech Policy Groups" in TLJ Daily E-Mail Alert No. 2,014, November 12, 2009.

Tuesday, December 29

No events listed.

Wednesday, December 30

No events listed.

Thursday, December 31

Deadline to submit comments to the National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) regarding its draft SP 800-37 Rev. 1 [88 pages in PDF] titled "Guide for Applying the Risk Management Framework to Federal Information Systems: A Security Life Cycle Approach".

Friday, January 1

New Year's Day. This is a federal holiday. See, Office of Personnel Management's (OPM) web page titled "2010 Federal Holidays".

More News

12/23. An administrative law judge (ALJ) of the Federal Communications Commission (FCC) released an order [PDF] dismissing the program carriage complaint filed by TCR Sports Broadcasting Holding LLP against Comcast.Corporation. TCR and Comcast filed a joint motion to dismiss, dated December 22, 2009, in which they stated that they reached a settlement. This proceeding is titled "In the Matter of TCR Sports Broadcasting Holding, L.L.P, d/b/a Mid-Atlantic Sports Network, Complainant v. Comcast Corporation, Defendant" and numbered MB Docket No. 08-214 and File No. CSR-8001-P. This order is FCC 09M-58.

12/17. The White House news office issued a release regarding the broadband grant and loan programs created by HR 1.

12/17. The Executive Office of the President's (EOP) National Economic Council (NEC) released a report [16 pages in PDF] titled "Recovery Act Investments in Broadband: Leveraging Federal Dollars to Create Jobs and Connect America".

Christine Varney12/16. Christine Varney (at right), Assistant Attorney General in charge of the Department of Justice's (DOJ) Antitrust Division commented in a release about the European Commission and Microsoft. She stated that the "Antitrust Division commends the efforts of the European Commission and Microsoft Corporation, which have announced that they have reached a comprehensive settlement resolving their disputes under European competition law. As we understand it, the settlement is based on measures to enhance competition and is designed to preserve industry participants' incentives and ability to compete going forward. A settlement that helps to clarify obligations under European law allows the industry to move forward. The Department is committed to continuing its strong and cooperative relationship with the European Commission to promote competition policy that protects consumer welfare." See also, story titled "Microsoft Commits to EC to Offer Windows Without Browser in Europe" in TLJ Daily E-Mail Alert No. 2,024, December 17, 2009.

12/15. The National Institute of Standards and Technology (NIST) published a notice in the Federal Register soliciting applications for the NIST's Gaithersburg Summer Undergraduate Research Fellowship (SURF) Program, and Boulder Summer Undergraduate Research Fellowship Program. These SURF programs cover, among other topics, "Electronics and Electrical Engineering", "Nanoscale Science and Technology", and "Information Technology". The deadline to submit applications is 5:00 PM on February 16, 2009. See, Federal Register, December 15, 2009, Vol. 74, No. 239, at Pages 66291-66296.

12/15. Federal Communications Commission (FCC) Commissioner Michael Copps gave a speech at the FCC's workshop on regulating broadband internet access providers for the purpose of promoting democracy. He said that "History teaches us that when a company has the technical capacity and a financial incentive to interfere, there will be some bad apples who will. Given what’s at stake, we need hard and fast rules ..." In contrast, Commissioner Robert McDowell stated in his speech that "I have serious concerns, from both a constitutional and policy standpoint, about placing more regulatory mandates on the Internet." Commissioner Mignon Clyburn said in her speech that she wants the internet to be "an unbiased platform".

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