|WTO Appellate Body Affirms in
Movie and Music Case
12/21. The Appellate Body of the World Trade
Organization (WTO) issued its
pages in PDF], upholding the findings and conclusions of the Dispute Settlement
Panel's report in the WTO's proceeding titled "China -- Measures Affecting
Trading Rights and Distribution Services for Certain Publications and Audiovisual
This affirms the panel's conclusions that the PRC's access barriers for US
content distributors violate its WTO commitments. The US had also complained
about deficiencies in the PRC's legal regime for protecting and enforcing
copyrights and trademarks. However, the panel did not rule in favor of the US on
that issue. Also, the US complaint could have, but did not, encompass any PRC
violations of its WTO obligations that harm US software makers.
Japan, Taiwan, Korea, the European Communities, and Australia also joined in
This Appellate Body affirmance is a victory for the movie and music industries.
Ron Kirk, the head of the Office of the U.S.
Trade Representative (OUSTR), stated in a
release that "Today America got a big win. We are very pleased that the WTO
has found against China's import and distribution restrictions on U.S. movies,
music, DVDs and publications".
(at right) continued that "The Appellate Body's findings are key to ensuring
full market access in China for legitimate, high-quality entertainment products
and the exporters and distributors of those products. U.S. companies and workers
are at the cutting edge of these industries, and they deserve a full chance to
compete under agreed WTO rules. We expect China to respond promptly to these
findings and bring its measures into compliance."
"This case is also an important part of our efforts to combat intellectual
property piracy", said Kirk. "The panel and Appellate Body findings
ensure that legitimate American products are granted market access so that they
can get to market and beat out the pirates."
The US filed its complaint (nominally a request for consultations) with the
WTO on April 10, 2007. See,
titled "US to Complain to WTO Regarding PR China's Failure to Protect IPR" in
TLJ Daily E-Mail
Alert No. 1,562, April 9, 2007.
The US requested the establishment of a Dispute Settlement Panel (DSP) on
August 13, 2007. See, story titled "US Requests WTO Dispute Settlement Panel Re
PRC Failure to Protect IPR" in
TLJ Daily E-Mail
Alert No. 1,623, August 15, 2007.
A WTO panel issued its
pages in PDF] on January 26, 2009, with findings and conclusions in favor of the
U.S. See, story titled "WTO Panel Rules in PRC IPR Case" in
TLJ Daily E-Mail
Alert No. 1,889, February 2, 2009.
The PRC appealed. And now, it has lost.
The WTO has no authority to enforce this decision. The Appellate Body
report merely advises the PRC to come into compliance with its WTO obligations.
However, if the PRC does not come into compliance, then the WTO may
authorize the US and other aggrieved WTO members to impose trade sanctions.
Neil Turkowitz of the Recording Industry
Association of America (RIAA) stated in a
release that "We greet today's important and unequivocal decision upholding
the earlier Panel Report on the incompatibility of certain Chinese measures with
great optimism. China maintains a variety of restrictions on the ability of U.S.
record companies to do business in China, thereby undermining the potential for
growth in the world's most populous country. Today's decision is a reminder of
the importance of international trade rules that govern the behavior of states,
and which generally ban overtly discriminatory measures. Ultimately,
liberalization of China's market will serve the interests of U.S. and Chinese
creators alike by providing a more robust and competitive infrastructure for the
distribution of creative materials."
Dan Glickman, head of the Motion Picture
Association of America (MPAA), stated in a
release that "With today's rejection of China’s appeal, the
WTO has taken a major step forward in leveling the playing field for America’s
creative industries seeking to do business in China."
Glickman added that "This ruling will complement our strategy
to fight movie piracy in China. In spite of all the restrictions we face, there
is no shortage of U.S. filmed entertainment in China. Unfortunately, far too
much of it is pirated. This ruling represents a positive step in promoting the
growth of legitimate U.S. movies in a market that is growing rapidly, and with
|State and Local Government Groups
Seek Revision of FCC Tower Citing Application Shot Clock
12/17. The National Association of
Telecommunications Officers and Advisors (NATOA), U.S. Conference of Mayors,
National League of Cities, National Association of Counties, and American
Planning Association filed with the Federal Communications Commission (FCC) a
Petition for Reconsideration or Clarification [16 pages in PDF] of the FCC's recent
Declaratory Ruling (DR) regarding cell towers citing requests.
The FCC adopted and released its DR on November 18, 2009, interpreting
47 U.S.C. § 332(c)(7)(B), and setting the time frames for state and local
action on wireless facilities siting requests.
The statute provides, in part, that "A State or local government or
instrumentality thereof shall act on any request for authorization to place,
construct, or modify personal wireless service facilities within a reasonable period
of time ..." The statute does not define "reasonable period of time".
This DR addresses, among other things, the meaning of "a reasonable period of
time". It states that "we find 90 days to be a generally reasonable timeframe
for processing collocation applications and 150 days to be a generally
reasonable timeframe for processing applications other than collocations. Thus,
a lack of a decision within these timeframes presumptively constitutes a failure
to act under Section 332(c)(7)(B)(v)."
The DR further states that "we
conclude that the time it takes for an applicant to respond to a request for
additional information will not count toward the 90 or 150 days only if that
State or local government notifies the applicant within the first 30 days that
its application is incomplete". (The statute provides that an action for
judicial relief must be brought "within 30 days" after a State or local
government action or failure to act.)
See also, story titled "FCC Adopts Declaratory Ruling Regarding State and
Local Tower Siting Procedures" in
TLJ Daily E-Mail Alert
No. 2,017, November 23, 2009. This DR is FCC 09-99 in WT Docket No. 08-165.
The NATOA and other interest groups that represent state and local governments
filed their petition on December 17, 2009. They seek a revised DR that would allow
state and local licensing authorities greater power to drag out the application
process by asserting that tower citing applications are incomplete.
They request that the FCC amend its DR to provide that at any time before the
expiration of the 90 or 150 day deadline a state or local government may ask for
more information, and that the time it takes the applicant to provide this information
does not count for the purpose of calculating expiration of the 90 or 150 days.
Under this proposal a state or local government could hypothetically issue a
series of requests for information to indefinitely drag out the process, and
thereby frustrate the intent of the DR.
The NATOA also stated in a
release on December 18, 2009, that while its petition does not raise the
issue of the FCC's authority to issue this DR, "we believe that this larger
legal argument is more suited to a judicial appeal".
It added that "NATOA supports appeal efforts on the part of local
governments; however, NATOA is not currently participating in an appeal at this
time. NATOA does have the ability to join an appeal at a later date if it is
determined that such action is in the strategic best interest of our members."
Initial comments are due by January 22, 2009. Reply comments are due by February 8,
2010. See, the FCC's December 23, 2009,
Public Notice [3 pages in PDF]. It is DA 09-2629 in WT Docket No. 08-165.
12/28. December 28, 2009, is the effective date for the Federal
Communications Commission's (FCC) rules changes regarding the filing and
delivery of paper documents. See, December 3, 2009,
Public Notice (DA 09-2529), and
notice in the
Federal Register, December 28, 2009, Vol. 74, No. 247, at Pages 68543-68544.
12/28. The Department of Homeland Security
(DHS) published a
notice in the Federal Register that announces, describes, and recites its
rules changes that delay indefinitely the January 1, 2010, effective date of
certain mandates imposed by the DHS upon states pursuant to the REAL ID Act.
See, Federal Register, December 28, 2009, Vol. 74, No. 247, at Pages
68477-68478. The DHS previously announced this delay by
December 18, 2009. See, story titled "DHS Extends REAL ID Deadline" in TLJ
Daily E-Mail Alert No. 2,026, December 22, 2009.
12/24. The Internet Corporation for Assigned
Names and Numbers (ICANN) released its 2009
report [45 pages in PDF].
12/23. The Federal Communications Commission (FCC) issued an
suspending the January 11, 2010, deadline to submit Form 323, the broadcast ownership
extension. The FCC will not set a new deadline until it has rewritten Form 323.
This order is DA 09-2618 in MB Docket Nos. 07-294, 06-121, 02-277, and 04-228, and MM
Docket Nos. 01-235, 01-317, and 00-244.
|This issue contains the following items:
• WTO Appellate Body Affirms in Movie and Music Case
• State and Local Government Groups Seek Revision of FCC Tower Citing
Application Shot Clock
• Groups Urge FTC to Block Google AdMob Merger
• More News
|Groups Urge FTC to Block Google AdMob
12/28. The Consumer Watchdog (CW)
and Center for Digital Democracy (CDD)
letter [4 pages in PDF] to the Federal Trade
Commission (FTC) urging it "to block the acquisition by Google of its direct
competitor AdMob" and both harm to competition and privacy grounds.
AdMob states in its web site that it is
"one of the world's largest mobile advertising networks, offering solutions for
discovery, branding and monetization on the mobile web", and that it serves
"billions of targeted and personalized ads on the mobile web each month".
The CW and CDD state in their letter that "The proposed deal
would substantially lessen competition in the increasingly important mobile
advertising market. The acquisition as proposed is harmful to consumers,
advertisers and application developers, among others."
John Simpson of the CW stated in a
release that "The mobile sector is the next frontier of the digital
revolution. Without vigorous competition and strong privacy guarantees this
vital and growing segment of the online economy will be stifled".
Google stated in a release on December 23, 2009, that "we don't see any
regulatory issues with this deal, because the rapidly growing mobile advertising
space is highly competitive with more than a dozen mobile ad networks."
Although, it disclosed that it had just received a second request for
information from the FTC.
Privacy. While the federal antitrust statutes do not
address protection of consumer privacy, the CW and CDD also wrote that
"substantial privacy concerns that must be addressed by the" FTC.
The letter argues that "Both AdMob and Google gather tremendous amounts of
data about consumers' online behavior, including in the key mobile sector. AdMob,
for example, targets consumers using a wide range of methods, including behavioral,
demographic, geographical and contextual. Google’s mobile marketing services are
part of its extensive ad serving and data analysis system." (Footnotes omitted.)
While antitrust laws address questions such as market share of
the merged entity, and resulting ability to engage in anticompetitive practices,
the CW and CDD ask the FTC to address concentration of personal data in the
merged entity, and the resulting ability to engage in practices that harm
individuals' interests in privacy. That is, they analogize privacy to
They explain that "Google also provides extensive mobile
advertising and data driven analytical services through its DoubleClick
subsidiary. AdMob says it ``stores and analyzes the data from every ad request,
impression, and click and uses this to optimize ad matching in its network.´´ It
targets users by ethnicity, age, gender and other targeting variables. Google
offers a range of mobile targeting as part of the Google Content Network. Both
companies engage in location based targeting. The consolidation of AdMob into
Google would provide significant amounts of data for targeting advertising."
They argue that "Permitting the expansion of mobile advertising
through the combination of these two market leaders without requiring privacy
guarantees poses a serious threat to consumers."
The FTC declined the requests of some interest groups in 2007 to
consider privacy implications when it reviewed the proposed Google DoubleClick
transaction. It declined to block the merger, applying Section 7 of the Clayton
Act, which is codified at
15 U.S.C. § 18, and prohibits acquisitions or mergers, the effect of which "may
be substantially to lessen competition, or to tend to create a monopoly."
The FTC wrote then that "the sole purpose of federal antitrust review of
mergers and acquisitions is to identify and remedy transactions that harm
competition." It concluded that "privacy considerations, as such, do not provide
a basis to challenge this transaction."
See, story titled "FTC Will Not Block Google DoubleClick
Merger" in TLJ
Daily E-Mail Alert No. 1,691, December 19, 2007.
On the other hand, the FTC announced earlier this month that it would proceed
in its administrative antitrust action against Intel under Section 5 of the FTC Act,
which is codified at
15 U.S.C. § 45. This section broadly covers
Section 5 provides, in part, that
"Unfair methods of competition in or affecting commerce, and unfair or
deceptive acts or practices in or affecting commerce, are hereby declared
unlawful." It is also the section invoked by the
FTC, for example, when it takes action against web site operators for violating
the terms of their privacy policies.
See, stories titled "FTC
Files Antitrust Charges Against Intel by Administrative Complaint Under FTC Act"
and "Commentary: FTC Antitrust Procedure"
in TLJ Daily E-Mail Alert No. 2,024, December 17, 2009.
Perhaps it should also be noted
that the Federal Communications Commission (FCC), which conducts antitrust
merger reviews (without a statute or rules), regularly considers matters, and
imposes conditions, that are unrelated to harm to competition.
Antitrust. The CW and CDD also make more traditional competition based
arguments. They note that Google intends to offer a smartphone, and argue that
"Data about competing smartphone users and applications, gathered through the
Google/AdMob advertising network, could give Google information about its
competitors that would be advantageous in marketing its new smartphone, as well
models using its Android operating system". (Footnote omitted.)
They continue that "instead of acquiring dominance in this
increasingly important market through legitimate competition and innovation,
Google is buying its way to a preeminent position in the mobile advertising
sector, diminishing competition to the detriment of consumers."
And, as a result, they argue that Google will become "even more
dominant one-stop shop for advertisers", and be able to raise prices for these
Also, "Many mobile applications are monetized
with in-applications ads. If Google is allowed to monopolize the mobile ad
market, these applications developers' earnings will depend completely on
Google’s whim. In an uncompetitive market Google would likely take a larger
share of the revenues, hurting applications developers."
New items are highlighted in
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 the week of December 28 through
January 1. It will next meet on January 5, 2010, at 12:00
NOON in pro forma session.
No events listed.
New Year's Day. This is a federal holiday. See, Office of
Personnel Management's (OPM)
page titled "2010 Federal Holidays".
Deadline to submit comments to the Department of Justice's
(DOJ) Antitrust Division regarding the
proposed final judgment,
and Competitive Impact Statement in U.S. v. AT&T. See,
notice in the Federal
Register, November 3, 2009, Vol. 74, No. 211, at Pages 56869-56881. In this proceeding,
the DOJ approved the merger of AT&T and Centennial Communications, subject to
divestitures in eight local markets. See, story titled "DOJ Approves AT&T
Acquisition of Centennial" in
TLJ Daily E-Mail Alert No.
2,004, October 16, 2009. The Federal Register notice does not specify the comment
deadline. Rather, it states that comments are due "within 60 days of the date
of this notice".
The House will not meet the week of
January 4-8. See, Rep. Hoyer's
release. See also, Section 11 of
Deadline to submit proposals to be designated database
administrator in the Federal Communications Commission's (FCC) white space
Notice [4 pages in PDF]. It is DA 09-2479 in ET Docket No. 04-186. See
also, story titled "FCC Requests Proposals to Be
Designated White Spaces Database Administrator" in TLJ Daily E-Mail Alert No.
2,018, November 30, 2009.
No events listed.
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Copyright 1998-2009 David Carney. All rights reserved.