|Copyright Royalty Judges Announce NPRM on
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
U.S.C. § 112(e) and
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
[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
|FCC Releases FNPRM
Regarding High Universal Support
12/15. The Federal Communications Commission (FCC) adopted and released a
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
[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."
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.)
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
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
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
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.
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
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
Approves Settlement of Class Action Comcast P2P
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
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.
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
[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.
|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
New items are highlighted in
The House will not meet.
The Senate will meet at 6:45 AM.
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,
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.
Christmas Day. This is a federal holiday. See, Office of
Personnel Management's (OPM)
page titled "2009 Federal Holidays".
The House will not meet.
The Senate will not meet.
The House will not meet the week of December 28 through
January 1. See, Rep. Hoyer's
release. See also, Section 11 of
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.
No events listed.
No events listed.
New Year's Day. This is a federal holiday. See, Office of
Personnel Management's (OPM)
page titled "2010 Federal Holidays".
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
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 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
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
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,
McDowell stated in his
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
that she wants the internet to be "an unbiased platform".
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Copyright 1998-2009 David Carney. All rights reserved.