1/4. The Department of Justice's (DOJ) Antitrust Division submitted a comment to the Federal Communications Commission (FCC) in connection with the FCC's drafting of a document titled "National Broadband Plan".

The DOJ states in this comment that wireless broadband could become a competitor to wireline broadband provided by cable and telecom companies. It states that the FCC should make more spectrum available for wireless broadband. Also, it suggests doing so in a manner that puts it in the hands of competitors to major incumbent wireline broadband providers.

This comment, like a similar comment filed by the National Telecommunications and Information Administration (NTIA), cautions against putting reallocated spectrum in the hands of wireline incumbents Verizon and AT&T. See, related story in this issue titled "NTIA Urges FCC to Make More Spectrum Available for Wireless Broadband".

This DOJ comment states that wireless broadband "appears to offer the most promising prospect for additional competition in areas where user density or other factors are likely to limit the construction of additional broadband wireline infrastructure".

But, it continues that "We do not yet know, however, whether wireless broadband offerings will be able to exert a significant degree of competitive constraint on cable modem, DSL or fiber optic-based services".

The comment examines the different cost structures of wireline and wireless broadband services, and the implications for competition. "Within a given locale, wireline broadband involves very substantial sunk costs to reach a customer's location and rather low marginal costs to provide incremental services to connected households. Additionally, the costs of wireline broadband can be shared to a considerable degree with those of providing other services, e.g., multichannel video programming distribution (``MVPD´´) and wireline telephony, to the extent all the services are provided over the same infrastructure."

In contrast, "wireless broadband involves much smaller sunk costs associated with serving a given customer, but more substantial long-term marginal costs of expanding capacity in a given locale to serve more customers or to accommodate increased usage. Wireless data services may be provided over the same infrastructure and spectrum used to provide wireless voice service."

The DOJ comment states that its "is premature to predict whether the wireless broadband firms will be able to discipline the behavior of the established wireline providers, but early developments are mildly encouraging. Notably, the fact that some customers are willing to abandon the established wireline providers for a wireless carrier suggests that the two offerings may become part of a broader marketplace".

The filing also notes that both Verizon and AT&T are major providers of both wireless and wireless services, "raising the question of whether they will position their LTE services as replacements for wireline services".

The DOJ continues that "We do not find it especially helpful to define some abstract notion of whether or not broadband markets are ``competitive.´´ Such a dichotomy makes little sense in the presence of large economies of scale, which preclude having many small suppliers and thus often lead to oligopolistic market structures. The operative question in competition policy is whether there are policy levers that can be used to produce superior outcomes, not whether the market resembles the textbook model of perfect competition."

"In highly concentrated markets, the policy levers often include: (a) merger control policies; (b) limits on business practices that thwart innovation (e.g., by blocking interconnection); and (c) public policies that affirmatively lower entry barriers facing new entrants and new technologies." (Parentheses in original.)

Then the DOJ asserts that the FCC's "primary tool for promoting broadband competition should be freeing up spectrum" for "wireless broadband providers". For example, "Reallocating spectrum that is being underutilized would encourage the deployment of wireless services and could help to make such services more competitive with wireline offerings".

The comment also briefly mentions in passing that "the FCC could spur greater use of secondary markets in spectrum".

The DOJ then provides economic analysis relevant to the question of how best to put reallocated spectrum in the hands of wireless broadband providers.

"When market power is not an issue, the best way to pursue this goal in allocating new resources is typically to auction them off, on the theory that the highest bidder, i.e., the one with the highest private value, will also generate the greatest benefits to consumers. But that approach can go wrong in the presence of strong wireline or wireless incumbents, since the private value for incumbents in a given locale includes not only the revenue from use of the spectrum but also any benefits gained by preventing rivals from eroding the incumbents' existing businesses. The latter might be called ``foreclosure value´´ as distinct from ``use value.´´ The total private value of spectrum to any given provider is the sum of these two types of value. However, the ``foreclosure value´´ does not reflect consumer value; to the contrary, it represents the private value of forestalling entry that threatens to inject additional competition into the market."

It then states that "there are substantial advantages to deploying newly available spectrum in order to enable additional providers to mount stronger challenges to broadband incumbents".

The DOJ's filing lists 14 names in its signature section. Most are attorneys. However, economists Robert Majure and Carl Shapiro are also listed.

HR 1, the huge spending bill, directs the FCC to complete this report by February 17, 2010. The FCC's proceeding is GN Docket No. 09-51.

1/4. The National Telecommunications and Information Administration (NTIA) submitted a comment [8 pages in PDF] to the Federal Communications Commission (FCC) in connection with the FCC's drafting of a document titled "National Broadband Plan".

Its analysis of broadband competition, the potential for wireless broadband, the need for more spectrum for wireless broadband, and the downsides of giving that new spectrum to large wireline broadband incumbents, is similar to that of the Department of Justice's (DOJ) Antitrust Division. See, related story in this issue titled "Antitrust Division Urges FCC to Make More Spectrum Available for Wireless Broadband".

This NTIA comment begins that "A key question looking forward is whether emerging ``fourth generation´´ (4G) wireless services will have price and performance characteristics that might make them a viable alternative to wireline services for a significant number of customers". But, "it is premature to predict when, or even whether, these wireless broadband services will provide the competitive alternatives".

It cautions that "the two largest US wireless providers, Verizon and AT&T, also offer wireline services in major portions of the country, raising the question of whether these providers will market these services as replacements for wireline services".

It also offers the analysis that "the major broadband providers also offer services that are subject to competition from services and applications that rely on broadband facilities to reach prospective customers". Hence, "Broadband service providers have an incentive to use their control over those underlying facilities to advantage their value-added services or to disadvantage competitive alternatives".

The NTIA argues that the best way to "deter undesirable conduct by incumbent broadband service providers is to increase local broadband Internet access service competition". And, "a primary tool for promoting broadband competition should be to make more spectrum available for broadband wireless services".

This NTIA quotes, and states agreement with, the following statement in the DOJ's comment: "there are substantial advantages to deploying newly available spectrum in order to enable additional providers to mount stronger challenges to broadband incumbents".

It argues that while the FCC "should be alert to potential anticompetitive behavior by incumbent providers", it should "eschew price regulation, whether as a means of controlling retail rates or as a means of giving entrants access to the incumbents' broadband facilities".

Instead, the NTIA argues that the FCC should "examine the terms under which firms offer broadband Internet access, including policies concerning and affecting the flow of traffic over their networks. For that reason, the Administration fully supports the Commission's initiating a rulemaking to reexamine the 2005 Broadband Policy Statement".

1/6. The Federal Trade Commission (FTC) released a notice [6 pages in PDF], to be published in the Federal Register, that announces, describes, and sets the comments deadline for, proposed self-regulatory guidelines submitted by i-safe under the safe harbor provision of the Children's Online Privacy Protection rule.

See, i-safe's application [22 pages in PDF], proposed guideline requirements [30 pages in PDF], and chart [10 pages in PDF] comparing sections of the rule to the proposed guidelines. See also, FTC release.

The deadline to submit comments is March 1, 2010.

The 105th Congress enacted the Children's Online Privacy Protection Act (COPPA) 1998. It requires that operators of web sites directed at children under the age of 13 obtain parental consent before collecting personal information (PI) from children under 13. The COPPA was S 2326 in the 105th Congress. It was enacted into law as part of a large omnibus appropriations bill in October of 1998. It is now codified at 15 U.S.C. §§ 6501-6506.

The FTC then promulgated its COPPA rule. It is codified at 16 C.F.R. § 312.10. The FTC published this rule in a notice in the Federal Register, November 3, 1999, Vol. 64, No. 212, at pages 59887-59915. This rule provides, among other things, that a web site operator's compliance with FTC approved self-regulatory guidelines is a safe harbor in any enforcement action under the rule.

The FTC has already approved four sets of such self-regulatory guidelines. i-safe's proposed guidelines, if approved by the FTC, would create a fifth safe harbor.

The FTC's notice asks, for example, if the "proposed guidelines governing operators' information practices provide ``the same or greater protections for children´´ as those contained in Sections 312.2 - 312.8 of the Rule".

The FTC also asks if "the mechanisms used to assess operators' compliance with the guidelines effective" and whether "the incentives for operators' compliance with the guidelines effective".

1/6. Sen. Chris Dodd (D-CT) (at left) announced that he will not run for re-election later this year. He stated that "I ... found myself in the toughest political shape of my career". See, statement.

1/6. Richard Blumenthal, who has been the Democratic Attorney General of the state of Connecticut for nearly two decades, announced that he will run for the Senate seat being vacated by Sen. Chris Dodd (D-CT). Connecticut was one of the states that sued Microsoft, along with the Department of Justice (DOJ), in 1998, alleging violation of antitrust law. Blumenthal played a prominent role in that litigation. In 2003 he testified at a Senate Banking Committee (SBC) hearing that the Congress should enact legislation to ban private sector internet gambling that competes with state sanctioned gambling, such as Connecticut's. See, prepared testimony and story titled "Senate Committee Holds Hearing on Internet Gambling Bill" in TLJ Daily E-Mail Alert No. 626, March 19, 2003.

1/6. The National Telecommunications and Information Administration (NTIA) published a notice in the Federal Register extending the deadline to submit applications for membership on the Spectrum Management Advisory Committee. See, Federal Register, January 6, 2010, Vol. 75, No. 3, at Pages 843-844.

1/5. Julie Kearney will become the Consumer Electronics Association's (CEA) VP for Regulatory Affairs in late January. She previously worked for National Public Radio (NPR). However, before that, she worked for the CEA.

1/6. Intel announced in a release "a 10-year, $200 million commitment to advance education in math and science". Intel also stated that it "will provide training to more than 100,000 U.S. math and science teachers over the next 3 years, including an intensive 80-hour professional development math course for elementary school teachers and new Web-based instruction and collaboration tools including targeted professional development for science teachers of all grades". See also, White House news office release a release and a release regarding science, technology, engineering, and mathematics (STEM) education.

1/6. The European Commission (EC) released a document [30 pages in PDF] titled "DG Competition: Best Practices on the conduct of proceedings concerning Articles 101 and 102 TFEU", a document [20 pages in PDF] titled "DG Competition: Best Practices for the Submission of Economic Evidence and Data Collection in Cases Concerning the Application of Articles 101 and 102 TFEU and in Merger Cases", and a document [17 pages in PDF] titled "Hearing Officers: Guidance on procedures of the Hearing Officers in proceedings relating to Articles 101 and 102 TFEU (ex- articles 81 and 82 EC)". Neelie Kroes, the European Competition Commission, asserted in a related release that there is "due process and fairness" in EC antitrust proceedings.

1/6. The Federal Trade Commission (FTC) published a list in the Federal Register of recent grants of requests for early terminations of the waiting periods under the premerger notification rules and the Hart Scott Rodino Act. See, Federal Register, January 6, 2010, Vol. 75, No. 3, at Pages 870-873.

1/6. The Free Press (FP), Consumers Union (CU), and Media Access Project (MAP) sent a letter to the Federal Communications Commission (FCC) regarding Verizon Wireless's early termination fees.

1/5. The Copyright Royalty Judges published a notice in the Federal Register that announces and describes its proceeding to adjust the rates for the cable statutory license, which is codified at 17 U.S.C. § 111. The deadline to submit petitions to participate and a $150 filing fee is February 4, 2010. See, Federal Register, January 5, 2010, Vol. 75, No. 2, at Pages 455-456.

1/4. The Federal Trade Commission (FTC) released a report [12 pages in PDF] titled "Biennial Report to Congress Pursuant to the Do Not Call Registry Fee Extension Act of 2007", and a report [25 pages in PDF] titled "Additional Report to Congress Pursuant to the Do Not Call Registry Fee Extension Act of 2007". See also, FTC release.

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The House will not meet.

The Senate will not meet. It is scheduled to next meet, in pro forma session, on January 19.

9:30 - 10:15 AM. The Federal Communications Commission's (FCC) World Radiocommunication Conference 12 Advisory Committee's (WRC-12 AC) Informal Working Group 3: Space Services will hold a meeting. See, notice [PDF]. Location: FCC, South Conference Room (7th Floor, Room 7-B516), 445 12th St., SW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Ariba, Inc. v. Emptoris, Inc., App. Ct. No. 2009-1230, an appeal from the U.S. District Court (EDTex), D.C. No. 9:07cv0090-RHC, in a patent infringement case involving methods and systems for conducting electronic auctions. Location: Courtroom 201, 717 Madison Place, NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Finstar Corp. v. Directv Group, Inc., et al., App. Ct. No. 2009-1410, an appeal from the U.S. District Court (EDTex), D.C. No. 1:05-CV-00264, in a patent infringement case involving systems and methods for scheduling transmission of database tiers upon specific demand or at specific times and rates of repetition. Location: Courtroom 201, 717 Madison Place, NW.

10:15 AM - 12:00 NOON. The Federal Communications Commission's (FCC) World Radiocommunication Conference 12 Advisory Committee's (WRC-12 AC) Informal Working Group 4: Regulatory Issues will hold a meeting. See, notice [PDF]. Location: FCC, South Conference Room (7th Floor, Room 7-B516), 445 12th St., SW.

Deadline to submit comments to the National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) regarding its draft SP 800-34 Rev. 1 [150 pages in PDF] titled "Contingency Planning Guide for Federal Information Systems".

The House will not meet.

The Senate will not meet.

9:00 AM - 12:00 NOON. The Department of Health and Human Services' (DHHS) Office of the National Coordinator for Health Information Technology's (ONCHIT) HIT Policy Committee's Nationwide Health Information Network Workgroup will hold a meeting. The meeting will me on site, as well as webcast and teleconferenced. See, notice in the Federal Register, December 28, 2009, Vol. 74, No. 247, at Pages 68625-68626. Location?

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its request for comments regarding the competitive bidding procedures for Auction 87, for the lower and upper paging bands. See, Public Notice (DA 09-2416), notice of error in Public Notice, and notice in the Federal Register, December 18, 2009, Vol. 74, No. 242, at Pages 67221-67226. This is AU Docket No. 09-205.

EXTENDED TO JANUARY 21. Deadline to submit comments to the Executive Office of the President's (EOP) Office of Science and Technology Policy (OSTP) regarding public access to archived publications resulting from research funded by federal science and technology agencies. See, notice of extension in the Federal Register, December 31, 2009, Vol. 74, No. 250, at Pages 69368-69370.

The House will not meet.

The Senate will not meet.

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in Comcast v. FCC, App. Ct. No. 08-1291. Judges Sentelle, Tatel and Randolph will preside. This is a petition for review of the Federal Communications Commission's (FCC) August 2008 order [67 pages in PDF] pertaining to Comcast's management of certain peer to peer traffic. See, story titled "FCC Asserts Authority to Regulate Network Management Practices" in TLJ Daily E-Mail Alert No. 1,805, August 4, 2008. That order is FCC 08-183 in Docket No. 07-52.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Nissim Corp. v. Clearplay, Inc., App. Ct. No. 2009-1327, an appeal from the U.S. District Court (SDFl), D.C. No. 07-81170-CIV, in a patent licensing case regarding technology for skipping objectionable content in DVD movies. See, District Court order [14 pages in PDF] dismissing complaint. Location: Courtroom 201, 717 Madison Place, NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Telecommunications Systems, Inc. v. Mobile 365, Inc., App. Ct. No. 2009-1348, an appeal from the U.S. District Court (EDVa), a patent infringement case involving short messaging. Sybase has acquired Mobile 365. Location: Courtroom 402, 717 Madison Place, NW.

11:00 AM - 12:00 NOON. The Department of Health and Human Services' (DHHS) Office of the National Coordinator for Health Information Technology's (ONCHIT) Meaningful Use Workgroup will meet. See, notice in the Federal Register, January 5, 2010, Vol. 75, No. 2, at Page 369. The DHHS will webcast this meeting. The webcast is open to the public. The physical location of the meeting is closed to the public. Written comments are due two days prior to the meeting.

12:00 NOON - 1:30 PM. The American Bar Association's (ABA) Section of Antitrust Law will host a panel discussion titled "International Cartels During Economic Downturns: What Does History Tell Us? What Does the Future Hold?". The speakers will include Lisa Phelan (Chief of the DOJ's Antitrust Division's National Criminal Enforcement Section) and Ewoud Sakkers (head of the European Commission's Cartels Directorate). The ABA will teleconference this event. This event is free and open to the public. See, notice.

5:00 PM. Deadline to submit requests to the U.S. Patent and Trademark Office (USPTO) to participate in its January 20, 2010, public roundtable associated with its proposed rulemaking regarding practice before the Board of Patent Appeals and Interferences (BPAI) in ex parte patent appeals. See, notice in the Federal Register, December 22, 2009, Vol. 74, No. 244, at Pages 67987-68004. See also, story titled "USPTO Seeks Comments on Rules of Practice before the BPAI in Ex Parte Appeals" in TLJ Daily E-Mail Alert No. 2,026, December 22, 2009.

Deadline to submit comments to the Federal Communications Commission (FCC) in response to its 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 is DA 09-2610 in GN Docket Nos. 09-47, 09-51, and 09-137.

The House will not meet.

The Senate will not meet.

8:45 AM - 1:30 PM. The American Enterprise Institute (AEI) will host a conference titled "Locating the Source of Taxable Income in a Global Economy". See, notice. Location: AEI.

10:00 AM - 12:00 NOON. The Department of Health and Human Services' (DHHS) Office of the National Coordinator for Health Information Technology's (ONCHIT) Privacy & Security Policy Workgroup will meet. See, notice in the Federal Register, January 5, 2010, Vol. 75, No. 2, at Page 369. The DHHS will webcast this meeting. The webcast is open to the public. The physical location of the meeting is closed to the public. Written comments are due two days prior to the meeting.

SUSPENDED. Extended deadline to file with the Federal Communications Commission (FCC) Form 323, the broadcast ownership report. See, notice of extension. See, December 23, 2009, order (DA 09-2618) suspending deadline while the FCC rewrites Form 323.

The House is scheduled to meet.

The Senate will not meet.

8:00 AM - 5:00 PM. Day one of a two day closed meeting of the Defense Intelligence Agency (DIA) National Defense Intelligence College (NDIC) Board of Visitors. See, notice in the Federal Register, November 10, 2009, Vol. 74, No. 216, at Page 58005. Location: NDIC, Boling Air Force Base.

9:00 AM. The Federal Communications Commission's (FCC) Media Bureau (MB) will host an event titled "media ownership workshop" as part of its 2010 quadrennial review proceeding. The FCC stated in its notice that this event will address "how new media are affecting broadcasters, the lending and investment practices in traditional media, and how market size affects financial issues related to broadcasting". See also, January 5, 2010, release. This is MB Docket No. 09-182. Location: FCC, Commission Meeting Room, 445 12th St., SW.

9:00 AM - 12:00 NOON. The Department of Health and Human Services' (DHHS) Office of the National Coordinator for Health Information Technology's (ONCHIT) Strategic Plan Workgroup will meet. See, notice in the Federal Register, January 5, 2010, Vol. 75, No. 2, at Page 369. The DHHS will webcast this meeting. The webcast is open to the public. The physical location of the meeting is closed to the public. Written comments are due two days prior to the meeting.

1:00 - 4:00 PM. The Department of Health and Human Services' (DHHS) Office of the National Coordinator for Health Information Technology's (ONCHIT) Nationwide Health Information Infrastructure Workgroup will meet. See, notice in the Federal Register, January 5, 2010, Vol. 75, No. 2, at Page 369. The DHHS will webcast this meeting. The webcast is open to the public. The physical location of the meeting is closed to the public. Written comments are due two days prior to the meeting.

1:30 - 4:30 PM. The Department of Homeland Security's (DHS) National Infrastructure Advisory Council (NIAC) will meet. See, notice in the Federal Register: December 22, 2009, Vol. 74, No. 244, at Page 68071. Location: National Press Club, Ballroom, 529 14th St., NW.

6:00 - 9:15 PM. The DC Bar Association will host an event titled "How to Litigate a Patent Infringement Case". The speaker will be Patrick Coyne (Finnegan Henderson). The price to attend ranges from $89 to $129. Most DC Bar events are not open to the public. This event qualifies for continuing legal education (CLE) credit. See, notice. For more information, call 202-626-3488. Location: DC Bar Conference Center, 1101 K St., NW.

8:00 AM - 12:00 NOON. Day two of a two day closed meeting of the Defense Intelligence Agency (DIA) National Defense Intelligence College (NDIC) Board of Visitors. See, notice in the Federal Register, November 10, 2009, Vol. 74, No. 216, at Page 58005. Location: NDIC, Boling Air Force Base.

9:00 AM - 12:00 PM. The Cato Institute will host a program titled "The Obama Administration's Counterterrorism Policy at One Year". Among the many speakers will be Jim Harper (Cato) who focuses on policy related to information technologies, identification, and privacy. See, notice and registration page. This event is free and open to the public. The Cato Institute will webcast this event. Lunch will be served after the program. Location: Cato, 1000, Massachusetts Ave., NW.

10:00 AM - 12:00 NOON. The New America Foundation (NAF) will host a panel discussion titled "Does Broadband Boost Economic Development". The speakers will be Sacha Meinrath (NAF), Jed Kolko (Public Policy Institute of California), Joanne Hovis (Columbia Telecommunications Corporation), and Benjamin Lennett (NAF). This event is free and open to the public. See, notice and registration page. Location: NAF, 1899 L St., NW.

12:30 - 1:30 PM. The American Bar Association's (ABA) Section of Antitrust Law will host a panel discussion titled "Fundamentals of Antitrust Exemptions and Immunities". The speakers will include Gregory Luib (FTC's Competition Bureau). The ABA will teleconference this event. This event is free and open to the public. See, notice.

Deadline to submit comments to the U.S. Patent and Trademark Office (USPTO) regarding its proposal to change its procedure for handling notices of appeal and appeal briefs that identify fewer than all of the rejected claims as being appealed. See, notice in the Federal Register, December 14, 2009, Vol. 74, No. 238, at Pages 66097-66098.

12:00 NOON - 1:30 PM. The American Bar Association's (ABA) Section of Antitrust Law will host a panel discussion titled "Counseling Clients about the New FTC Rules for Use of Testimonials and Endorsements in Advertising". These rules include, among other things, disparate treatment of the speech of "bloggers" and "traditional media". See, story titled "FTC Makes Law Abridging the Freedom of Bloggers" in TLJ Daily E-Mail Alert No. 1,997, October 6, 2009. The ABA will teleconference and web cast this event. Prices vary. This event is open to the public. See, notice.

Day one of a two day event titled "House Democratic Caucus Issues Conference". See, 2010 House calendar.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) [107 pages in PDF] that proposes to regulate the network management practices of broadband internet access service providers. The FCC titles this proceeding "In the Matter of Preserving the Open Internet Broadband Industry Practices". This NPRM is FCC 09-93 in GN Docket No. 09-191 and WC Docket No. 07-52. See, notice in the Federal Register, November 30, 2009, Vol. 74, No. 228, at Pages 62637-62662. See also, stories titled "FCC Adopts Internet Regulation NPRM", "Text of Proposed Internet Regulation Rules", "Statutory Authority and Ancillary Jurisdiction", "More Praise for the FCC's NPRM", "More Criticism of the FCC's NPRM", and "Sen. McCain Introduces Bill to Block FCC Regulation of Internet or IP-Enabled Services" in TLJ Daily E-Mail Alert No. 2,008, October 23, 2009.