This release does not identify the members. However, it states that it will be chaired by the Deputy Attorney General, and that it "will include representatives from the offices of the Attorney General, the Deputy Attorney General, and the Associate Attorney General; the Criminal Division; the Civil Division; the Antitrust Division; the Office of Legal Policy; the Office of Justice Programs; the Attorney General’s Advisory Committee; the Executive Office for U.S. Attorneys and the FBI."

The DOJ release states that this task force "will focus on strengthening efforts to combat intellectual property crimes through close coordination with state and local law enforcement partners as well as international counterparts. It will also monitor and coordinate overall intellectual property enforcement efforts at the Department, with an increased focus on the international aspects of IP enforcement, including the links between IP crime and international organized crime. Building on previous efforts in the Department to target intellectual property crimes, the Task Force will also serve as an engine of policy development to address the evolving technological and legal landscape of this area of law enforcement."

President Obama previously established an Office of the Intellectual Property Enforcement Coordinator (IPEC) in the Executive Office of the President, headed by Victoria Espinel.

Patrick Ross, head of the Copyright Alliance, stated in a release that this is "welcome news". He added that "Attorney General Eric Holder is exactly right that intellectual property crime threatens our economic wellbeing. Millions of Americans in all 50 states depend on intellectual property rights and enforcement for their livelihoods. It is our hope that this task force will be a source of leadership and innovation, approaching the task with an open view of what might be achieved through technology, enforcement and policy."

Gigi Sohn, head of the Public Knowledge, stated in a release that "we believe it would be a mistake, and a misuse of government resources, for the Department to pursue cases against non-commercial consumer activity." She added that the task force is formed following discussions "held behind closed doors with industry representatives".

See also, Business Software Alliance release, Entertainment Software Association release, Motion Picture Association of America release, and Recording Industry Association of America release.

2/9. Rep. Ed Markey (D-MA), Rep. Lois Capps (D-CA), and Rep. Doris Matsui (D-CA) introduced HR 4619 [LOC | WW], the "E-Rate 2.0 Act of 2010".

This bill would expand the Federal Communications Commission's (FCC) e-rate program to provide for subsidies for broadband access for households containing someone who qualifies for the federally subsidized school lunch program. It would also expand the e-rate program to include community colleges and the federal head start programs. Finally, it would create an e-books subsidy program.

It was referred to the House Commerce Committee (HCC). All three sponsors are members.

Rep. Markey (at right) stated in a release that "with the expansion of the scope of technology, students need more than just Web access at school, and our E-Rate 2.0 bill is intended to reflect those expanded needs".

He also said that this bill would increase "the range of the latest telecommunication services and devices accessible to low-income students, including residential broadband services and e-books incorporated into students’ classroom lessons".

This bill would amend the universal service tax and subsidy programs section of the Communications Act of 1934. This section is codified at 47 U.S.C. § 254.

Subsection 254(h) pertains to the FCC's e-rate program. It provides for telecommunications carriers to subsidize telecommunications services at elementary and secondary schools, libraries, and health clinics. As implemented by the FCC, subsidies are provided for telephone service, internet access, and internal connections.

The e-rate language of the statute, which was enacted in the Telecommunications Act of 1996, is maddingly vague. Rep. Markey was one of its drafters. This vagueness enabled former FCC Chairman William Kennard and others at the FCC, and Rep. Markey and other legislators, free reign in the ensuing years to implement programs with only limited statutory constraints.

HR 4619 also has the appearance of statute carefully drafted with intentional uncertainty.

Broadband Access Subsidies. First, HR 4619 would amend subsection 254(h) by creating a pilot program with a five year duration "to extend broadband service to students who -- (i) qualify for funding under the federally subsidized school lunch program; (ii) attend secondary schools that receive support under this section; and (iii) who possess a computer for use at home."

This bill would authorize the appropriation of an additional $500 Million per year for this program. The e-rate is currently funded by a tax collected by service providers from their customers. The FCC has fixed e-rate spending at $2.25 Billion per year, pursuant to agreement with legislators, and codified in its regulations.

This bill provides that the FCC would give money to "secondary schools to dispense vouchers to eligible students to be used for monthly service fees for residential broadband service for such students".

This provision would be codified in subsection 254(h), and would be described as an e-rate program. However, the existing e-rate programs, as well as other universal service programs, are funded by service providers, who in turn tax their customers. In contrast, the first proposal in HR 4619 would be funded by Congressional appropriation.

Community Colleges and Head Start. Second, this bill would would amend subsection 254(h) to expand the eligible recipients of e-rate subsidies to also include two new categories of recipients: community colleges and the "head start programs".

The bill also expressly provides that these two new programs cover "broadband equipment and services".

The bill would provide that $150 Million per year be spent on these two new programs. However, the bill is not clear as to whether this money would come from appropriation, the FCC's existing system of service provider taxation of customers, or what.

Universal E-Book Service. Third, the bill would amend subsection 254(h) to provide subsidies for certain secondary schools "to apply for meaningfully discounted services and technologies for the use of electronic books".

It also references $50 Million per year, but again, is vague as to whether this is an authorization for appropriation, use of the FCC's existing subsection 254(h) tax and subsidy system (which relies upon "telecommunications carriers"), or a new tax system based upon book publishers, device makers, or whomever.

The statute vaguely states that secondary schools would "apply for meaningfully discounted services". It does not state to whom they would apply. The current statute contains similar language. It mandates that "All telecommunications carriers  ... upon a bona fide request for any of its services that are within the definition of universal service ... provide such services to elementary schools, secondary schools, and libraries for educational purposes at rates less than the amounts charged for similar services to other parties ..."

The existing statute provides that the application is made to the "telecommunications carriers". The FCC sets the discounts (and hence, prices), and the "carriers" collect the discounts through taxes imposed on their other customers.

One construction of the just introduced bill would be that it treats book publishers, device makers, or others, like "telecommunications carriers". That is, all would be subject to universal service obligations. Under the language adopted in the Telecommunications Act of 1996, "carriers" must facilitate universal phone service (which the FCC then interpreted to also include internet service and internal wiring in implementing the e-rate programs) by providing discounts, and paying for them by taxing other customers. Analogously, under this construction of HR 4619, book publishers must facilitate universal access to books by providing discounts to schools on e-books, and paying for them by taxing, or raising prices, on their other customers; or, devices makers must facilitate access to books by providing discounts on e-reader devices.

However, HR 4619 stops short of stating that these e-book applications would be directed to book publishers and/or device makers, and that they would be required to sell e-books and devices at prices and terms fixed by the FCC. Although, this is a construction of that would likely withstand Chevron scrutiny.

Under this construction, this bill would expand the FCC's statutory authority beyond carriers and other communications businesses, to the book publishing and distribution industries. It would be imposing common carrier like obligations on unregulated industries.

It would place before the FCC a plethora of new issues. Would the FCC have authority to regulate digital rights management, and if so, how would it do so? Would the FCC have authority to mandate the price regulated sale of a book in e-book format when the publisher does not already sell that book in e-book format? Would the FCC have authority to regulate secondary sales of discounted e-books? What of books for which the applicant asserts that the rights holder is in dispute, or not locatable? Which publishers and rights holders would be subject to this FCC regulatory scheme?

Does the phrase "apply for meaningfully discounted ... technologies for the use of electronic books" also mean that schools can apply to device manufacturers, such as the makers Kindles, iPads, and other e-book readers, for price discounted devices?

Also, would the FCC apply "public interest" obligations on book publishers, rights holders, authors, device makers, and/or software developers, and if so what would they be? (This section of the bill includes the phrase "consistent with the public interest".)

And, how would the FCC regulate proprietary formats and devices? (The bill mandates implementation on a "technology-neutral basis".) Would the FCC mandate that publishers and rights holders publish books in non-proprietary formats, accessible on any e-book reader, and/or available via a web browser? Would the FCC impose technology mandates on equipment makers and software writers?

There are also Constitutional impediments to such a regulatory scheme. In 1943 the FCC successfully prevailed upon the Supreme Court to hold that the First Amendment ("Congress shall make no law respecting ... freedom of speech, or of the press") does not apply to broadcast speech in the same manner that it applies to print publishing. See, National Broadcasting Company v. US, 319 U.S. 190 (1943) and Red Lion v. FCC, 395 U.S. 367 (1969). HR 4619, if enacted, could place the FCC in the tenuous position of arguing that the First Amendment does not apply to books either.

Finally, whether such a book regulatory regime would reduce the intellectual quality of the U.S. book publishing industry towards the vast wasteland of the FCC regulated broadcast industry is another question.

Pilot Programs. Each of these three provisions is described in the bill as a pilot program. It should be recalled that during debates over FCC implementation of the e-rate program in 1998 and 1999, proponents argued that the FCC's multi-billion dollar funding level was temporary, and would be in place only for the time that it took to connect schools, libraries and health clinics to the internet.

Notwithstanding these representations, the e-rate program has evolved into a perpetual program with a consistent funding level. Perhaps Rep. Markey intends the same for his pilot program proposals.

Increasing E-Rate Funding. Finally, the bill would require the FCC to increase the funding level of its e-rate programs to account for inflation.

2/4. The Department of Justice's (DOJ) Antitrust Division filed a pleading [31 pages in PDF] with the U.S. District Court (SDNY) in Authors Guild v. Google regarding its continuing objections to the amended proposed class action settlement, also known as the amended settlement agreement, or ASA.

See, amended settlement agreement [173 pages in PDF] and original agreement marked up with amendments [179 pages in PDF], and story titled "Amended Settlement Agreement Filed in Google Books Case" in TLJ Daily E-Mail Alert No. 2,015, November 16, 2009.

The DOJ also filed objections to the original agreement. See, story titled "DOJ Files Pleading in Google Books Case" in TLJ Daily E-Mail Alert No. 1,985, September 21, 2009.

The DOJ wrote in its latest filing that "Despite this substantial progress, substantial issues remain. Although the United States believes the parties have approached this effort in good faith and the ASA is more circumscribed in its sweep than the original Proposed Settlement, the ASA suffers from the same core problem as the original agreement: it is an attempt to use the class action mechanism to implement forward-looking business arrangements that go far beyond the dispute before the Court in this litigation. As a consequence, the ASA purports to grant legal rights that are difficult to square with the core principle of the Copyright Act that copyright owners generally control whether and how to exploit their works during the term of copyright."

The DOJ continued that "Those rights, in turn, confer significant and possibly anticompetitive advantages on a single entity -- Google. Under the ASA as proposed, Google would remain the only competitor in the digital marketplace with the rights to distribute and otherwise exploit a vast array of works in multiple formats. Google also would have the exclusive ability to exploit unclaimed works (including so-called ``orphan works´´) without risk of liability. The ASA's pricing mechanisms, though in some respects much improved, also continue to raise antitrust concerns." (Parentheses in original. Footnote omitted.)

John Simpson of the Consumer Watchdog stated in a release that "Google offered only minimal amendments to its original flawed deal and the key problems remain. The Department of Justice should be commended for standing firm in opposing this private deal that unfairly benefits the narrow agenda of one company".

Simpson also stated that "The settlement still abuses the class-action mechanism and purports to enroll absent class members automatically into new business ‘opportunities,’ in violation of current copyright laws ... This scheme acts to the disadvantage of absent class members and would result in unfair competitive advantages to Google in the search engine, electronic book sales, and other markets, to the detriment of the public interest. Along the way, the settlement raises significant international law and privacy concerns."

The parties to the ASA (Google, Author's Guild, and Association of American Publishers) released a joint statement. They wrote that "The Department of Justice's filing recognizes the progress made with the revised settlement, and it once again reinforces the value the agreement can provide in unlocking access to millions of books in the U.S. We look forward to Judge Chin's review of the statement of interest from the Department and the comments from the many supporters who have filed submissions with the court in the last months. If approved by the court, the settlement will significantly expand online access to works through Google Books, while giving authors and publishers new ways to distribute their works."

This case Authors Guild and Association of American Publishers v. Google, Inc., U.S. District Court for the Southern District of New York, D.C. No. 05 Civ. 8136 (DC), Judge Denny Chin presiding.

The House will not meet the week of February 15-19, 2010. See, 2010 House calendar.

The Senate will not meet the week of February 15-19, 2010. See, 2010 Senate calendar.

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

Second of four suggested dates for submitting "white papers" to the National Institute of Standards and Technology (NIST) regarding the NIST's Technology Innovation Program (TIP). The other remaining suggested submission dates are May 10, 2010, and July 12, 2010. The final deadline is September 30, 2010. See, notice in the Federal Register, September 4, 2009, Vol. 74, No. 171, at Pages 45823-45825.

Day two of a four day event hosted by the National Association of Regulatory Utility Commissioners (NARUC) titled "Winter Committee Meetings". See, notice. Location: Renaissance Washington Hotel, 999 9th St., NW.

5:00 PM. Deadline to submit applications to the National Institute of Standards and Technology (NIST) for participation in its 2010 SURF grant programs. These are the NIST's Gaithersburg Summer Undergraduate Research Fellowship Program, and Boulder Summer Undergraduate Research Fellowship Program. The NIST distributes grants for, among other topics, electronics and electrical engineering, and information technology. See, notice in the Federal Register, December 15, 2009, Vol. 74, No. 239, at Pages 66291-66296.

Day three of a four day event hosted by the National Association of Regulatory Utility Commissioners (NARUC) titled "Winter Committee Meetings". See, notice. Location: Renaissance Washington Hotel, 999 9th St., NW.

Deadline to submit comments to the Judicial Conference of the United States' Committee on Rules of Practice and Procedure regarding proposed changes to the Federal Rules of Criminal Procedure (FRCrP), Federal Rules of Bankruptcy Procedure (FRBP), and Federal Rules of Evidence (FRE). The numerous changes to the FRCrP pertain to the use of new information technologies, including use of video conferencing, and consideration of electronically submitted information in the issuance of complaints, arrest warrants, and summonses. See, notice in the Federal Register, December 1, 2009, Vol. 229, No. 74, at Page 62821.

EXTENDED TO FEBRUARY 18. 5:00 PM. Deadline for all commenters (except foreign governments) to submit comments to the Office of the U.S. Trade Representative (OUSTR) to assist it in making determinations that identify countries that deny adequate and effective protection of intellectual property rights (IPR) or deny fair and equitable market access to U.S. persons who rely on intellectual property protection. The OUSTR is required to make these Special 301 determinations by Section 182 of the Trade Act of 1974, which is codified at 19 U.S.C. § 2242. See, notice in the Federal Register, January 15, 2010, Vol. 75, No. 10, at Pages 2578-2580. See, notice of extension.

11:00 AM. The Consumer Federation of America (CFA), Consumers Union (CU), Free Press (FP), Media Access Project (MAP), New America Foundation (NAF), and Public Knowledge (PK) will host a news conference regarding the Federal Communications Commission's (FCC) drafting of a document titled "National Broadband Plan". Location: Room 2123, Rayburn Building.

12:15 - 1:30 PM. The Federal Communications Bar Association's (FCBA) International Telecommunications and Young Lawyers Committees will host a brown bag lunch titled "Developing a Career in International Communications". The speakers will be Steven Lett (Department of State), John Giusti (Chief of Staff and Legal Advisor to FCC Commissioner Michael Copps), Janet Hernandez (Telecommunications Management Group, Inc.), and Gonzalo de Dios (Intelsat Corporation). For more information, contact Jennifer Hindin at jhindin at wileyrein dot com or Micah Caldwell at mcaldwell at fh-law dot com. Location: Wiley Rein, 10th floor, 1750 K St., NW.

Day one of a two day conference hosted by the Armed Forces Communications and Electronics Association (AFCEA) titled "Federal Networks 2010". At 1:30 PM, US-CERT acting Director Randy Vickers will speak on cybersecurity. See, notice. Location: Hilton McLean Tyson's Corner, 7920 Jones Branch Road, McLean, VA.

Day four of a four day event hosted by the National Association of Regulatory Utility Commissioners (NARUC) titled "Winter Committee Meetings". See, notice. Location: Renaissance Washington Hotel, 999 9th St., NW.

Statutory deadline for the Federal Communications Commission (FCC) to submit a report titled "National Broadband Plan", as required by HR 1 [LOC | WW]. FCC Chairman Julius Genachowski stated in letters on January 7, 2010 that the FCC will complete this report on March 17, 2010.

RESCHEDULED FROM FEBRUARY 11. The Federal Communications Commission (FCC) will hold an event titled "Open Meeting". Location: FCC, Commission Meeting Room, 445 12th St., SW.

EXTENDED FROM FEBRUARY 16. 5:00 PM. Deadline for all commenters (except foreign governments) to submit comments to the Office of the U.S. Trade Representative (OUSTR) to assist it in making determinations that identify countries that deny adequate and effective protection of intellectual property rights (IPR) or deny fair and equitable market access to U.S. persons who rely on intellectual property protection. The OUSTR is required to make these Special 301 determinations by Section 182 of the Trade Act of 1974, which is codified at 19 U.S.C. § 2242. See, notice in the Federal Register, January 15, 2010, Vol. 75, No. 10, at Pages 2578-2580. See, notice of extension.

Deadline to submit reply comments on proposals to be designated database administrator in the Federal Communications Commission's (FCC) white space proceeding. See, Public 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.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) regarding its e-rate program, and the "Protecting Children in the 21st Century Act". See, notice in the Federal Register, January 19, 2010, Vol. 75, No. 11, at Pages 2836-2843, and story titled "FCC Adopts E-Rate NPRM" in TLJ Daily E-Mail Alert No. 2,011, November 9, 2009. The FCC adopted this NPRM on November 4, 2009, and released the text on November 5, 2009. It is FCC 09-96 in CC Docket No. 02-6.

5:00 PM. Deadline to submit comments to the Executive Office of the President's (EOP) Office of Science and Technology Policy (OSTP) regarding the "modernized electric grid", and especially "issues related to Smart Grid implementation options, including the ways in which each option would support open innovation in home energy services". See, notice in the Federal Register, February 9, 2010, Vol. 75, No. 26, at Pages 6414-6416.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Notice of Inquiry (NOI) [31 pages in PDF] regarding empowering "parents to help their children take advantage of the opportunities offered by evolving electronic media technologies while at the same time protecting children from the risks inherent in use of these technologies". This NOI is FCC 09-94 in MB Docket No. 09-194. The FCC adopted this NOI on October 22, 2009, and released it on October 23, 2009. See, notice in the Federal Register, November 24, 2009, Vol. 74, No. 225, at Pages 61308-61316.

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