10/28. A group of law professors sent a letter to President Obama, U.S. executive branch officials, and legislators regarding the Anti-Counterfeiting Trade Agreement (ACTA).

They argue that the U.S. should "not sign ACTA before the conclusion of a meaningful public participation process and another round of official negotiations". The also want the U.S. to abandon the "executive agreement" approach, and instead submit a final ACTA to the Congress for approval. Also, they lambaste the President for reneging on his campaign promises of openness and transparency.

The Office of the U.S. Trade Representative (OUSTR) and others released a draft text of the ACTA on October 6, 2010. See, stories titled "ACTA Draft Released", "Summary of ACTA", and "Reaction to ACTA" in TLJ Daily E-Mail Alert No. 2,140, October 11, 2010.

These law professors wrote "to express our grave concern that your Administration is negotiating a far-reaching international intellectual property agreement behind a shroud of secrecy, with little opportunity for public input, and with active participation by special interests who stand to gain from restrictive new international rules that may harm the public interest".

They reminded the President that "You promised that wherever possible, important policy decisions would be made in public view, and not as the result of secret special interest deals hidden from the American people". But, they continued, "Your Administration’s negotiation of ACTA has been conducted in stark contrast to every one of these promises".

These law professors also wrote that "it is clear that ACTA would usurp congressional authority over intellectual property policy in a number of ways. Some of ACTA's provisions fail to explicitly incorporate current congressional policy, particularly in the areas of damages and injunctions. Other sections lock in substantive law that may not be well-adapted to the present context, much less the future. And in other areas, the agreement may complicate legislative efforts to solve widely recognized policy dilemmas, including in the area of orphan works, patent reform, secondary copyright liability and the creation of incentives for innovation in areas where the patent system may not be adequate."

They also wrote that the executive agreement approach would be unconstitutional. "The use of a sole executive agreement for ACTA appears unconstitutional. The President may only make sole executive agreements that are within his independent constitutional authority. The President has no independent constitutional authority over intellectual property or communications policy, the core subjects of ACTA. To the contrary, the Constitution gives primary authority over these matters to Congress, which is charged with making laws that regulate foreign commerce and intellectual property. ACTA should not be pursued further without congressional oversight and a meaningful opportunity for public debate."

In addition, Ed Black, head of the Computer and Communications Industry Association (CCIA), stated in a release on October 29, 2010, that "I have been a long-time advocate for multi-lateral trade agreements. They usually help US businesses expand to foreign markets. But this isn't a trade agreement -- and if it isn't properly reformed, it will be an anti-trade agreement. It could be inconsistent with our law, and if we're not careful, it may subject U.S. companies to foreign lawsuits for practices that are entirely legal in the United States."

10/29. The Federal Communications Commission (FCC) released a paper [36 pages in PDF] titled "Transformative Choices: A Review of 70 Years of FCC Decisions".

The author is the FCC's Sherille Ismail. He is an attorney in the FCC's Office of Strategic Planning & Policy Analysis. The paper states that the "analyses and conclusions set forth are those of the authors and do not necessarily reflect the view of the FCC".

It addresses the inception of the FCC's (and its predecessor, the Federal Radio Commission's) regulation of radio, broadcast television, cable television, satellite television, cell phones, and high definition and digital television. It also addresses the FCC's Carterfone decision.

While the subject matter is sweeping, this paper is only 36 pages long. It is limited to discussing only seven topics, and only in cursory fashion. It is a collection of short cases studies.

Moreover, some readers may not receive its largely self-congratulatory interpretations of the various FCC regulatory decisions or policies as authoritative history. For example, the short review of the history of broadcast radio asserts that "chaos ensued" prior to the government's seizure of spectrum and its institution of licensing and the advertising financed business model, and that the FRC/FCC then ushered in a "Golden Age of programming". The only shortcomings of this regulatory regime identified by this paper are concentration and lack of diversity.

10/29. The Federal Communications Commission (FCC) released a paper [28 pages in PDF] titled "Maximum Impact for Minimum Subsidy: Reverse Auctions for Universal Access in Chile and India".

The author is the FCC's Irene Wu. She is an attorney in the FCC's International Bureau. The paper states that the "analyses and conclusions set forth are those of the authors and do not necessarily reflect the view of the FCC".

She offers this explanation of a "minimum subsidy auction". The "government identifies a project and a maximum subsidy. Companies compete for the project by bidding down the value of the subsidy. The bidder requiring the lowest subsidy wins".

The concept of FCC reverse auctions bears most of the attributes of government procurement of either products or services, where the government puts out a request for proposals (RFP), and then awards the contract to the lowest bidder. That is, a universal service reverse auction is simply a standard RFP for providing telecommunications or broadband services. The potential advantages of such an approach are speed, reduced subsidy payments, and increased transparency (and with this, less fraud).

Wu writes in her just released paper that, based upon the experiences of Chile and India, reverse auctions "can be quicker and more transparent than other approaches".

She also offers several recommendations for successful implementation of reverse auctions, such as "Set clear policy targets and methods for identifying projects. ... Establish method for calculating maximum subsidy available per project. ... Specify minimum technical and financial requirements for bids and regulatory advantages or requirements, if any. ... Maximize the number of competitors and range of technical options."

The FCC's Notice of Proposed Rulemaking (NPRM) [58 pages in PDF] regarding universal service subsidies and certain 3G and next generation wireless services, adopted and released on October 14, 2010, proposes the use of reverse auctions.

That NPRM states that "A reverse auction, in which potential providers or sellers of a defined service or other benefit compete to provide it at the lowest price, can be a relatively quick, simple, and transparent method of selecting parties that will provide a benefit at the lowest price and of setting the price those parties should be paid." (See, Paragraph 58.)

See also, story titled "FCC Adopts NPRM Regarding Universal Service Subsidies for 3G and Next Generation Wireless" in TLJ Daily E-Mail Alert No. 2,142, October 19, 2010.

Wu also addresses universal service waste and fraud in her paper. She states that "federal funding for Internet and related programs through the Universal Service Fund have been marred in recent years by waste, fraud, abuse, and general lack of transparency. Little time has passed since these problems were identified, and they are still under investigation. ... As auctions are notable for increasing transparency of action, using a decidedly different technique such as auctions to disburse funds may mitigate the likelihood that old problems will arise again". (Footnote omitted.)

Reverse auctions are usually discussed in the context of subsidization of service in high cost areas. The recently released FCC NPRM states that it proposes a fund to target "unserved areas". In the U.S. there is considerable waste in such subsidization. However, much of the outright fraud occurs in the FCC's universal service subsidies for schools and libraries. Wu's paper does not specifically address the use of reverse auctions for e-rate subsidies.

10/22. The U.S. Court of Appeals (3rdCir) issued its opinion [85 pages in PDF] in Farina v. Nokia, a putative class action against numerous cell phone manufacturers and retailers of wireless handheld telephones. The Court of Appeals affirmed the judgment of the District Court, which dismissed.

Francis Farina filed a complaint in state court in Pennsylvania alleging that the defendants' cell phones expose users to dangerous amounts of radio frequency (RF) radiation, and that this violates various Pennsylvania laws. The case was removed to the U.S. District Court (EDPenn).

The Federal Communications Commission (FCC) regulates RF radiation. See, FCC web page titled "Radio Frequency Safety".

The District Court dismissed the complaint on the grounds that it is preempted by FCC regulation. The Court of Appeals affirmed.

The Court of Appeals wrote that "The inexorable effect of allowing suits like Farina's to continue is to permit juries to second-guess the FCC’s balance of its competing objectives. The FCC is in a better position to monitor and assess the science behind RF radiation than juries in individual cases. Regulatory assessments and rulemaking call upon a myriad of empirical and scientific data and medical and scientific opinion, especially in a case, such as RF radiation, where the science remains inconclusive."

It added that "Though we foreclose relief for the members of this putative class, this does not render them devoid of protection. The FCC has pledged to serve an ongoing role in the regulation of RF radiation and to monitor the science in order to ensure its regulations remain adequate to protect the public."

This case is Francis Farina v. Nokia, Inc., et al., U.S. Court of Appeals for the 3rd Circuit, App. Ct. No. 08-4034, an appeal from the U.S. District Court for the Eastern District of Pennsylvania, D.C. No. 06-cv-0724, Judge John Padova presiding. Judge Scirica wrote the opinion of the Court of Appeals, in which Judges Ambro and Alarcon (USCA/9thCir sitting by designation), joined.

10/29. Federal Communications Commission (FCC) Chairman Julius Genachowski gave a speech in Washington DC at the Rainbow PUSH Coalition Telecommunications Symposium. He said that "we need all Americans to be online".

10/22. The National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) released its draft NIST IR-7692 [38 pages in PDF] titled "Specification for the Open Checklist Interactive Language (OCIL) Version 2.0". The deadline to submit comments is November 5, 2010.

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The House is in recess until November 15.

The Senate is in recess until November 12, except for pro forma sessions.

9:00 AM. The Arizona State University (ASU) will host an event titled "Can Open Innovation Regain America's Competitive Edge?". The speakers will include Diana Wells (Ashoka), Amy Stursberg (Blackstone Charitable Foundation), Jim Whitehurst (Red Hat, Inc.), Santokh Badesha (Xerox), Matthew Von Ertfelda (Marriot International), Chris Thomas (Intel), Mitzi Montoya (ASU), Rob Pegoraro (Washington Post), and Michael Crow (ASU). See, notice. For more information, contact Kate Wells, 602-703-5231 or kate dot wells at asu dot edu. Location: Ballroom, 13th floor, National Press Club, 529 14th St., NW.

9:00 - 10:30 AM. The Washington International Trade Association (WITA) will host a panel discussion titled "Anti-Counterfeiting Trade Agreement Update". The speakers will be Kira Alvarez (OUSTR), Ed Black (CCIA), Emery Simon (BAA), and Bruce Wilson (King & Spalding). See, notice. Location: Horizon Ballroom, Ronald Reagan Building and International Trade Center, 1300 Pennsylvania Ave., NW.

12:15 - 1:30 PM. The Federal Communications Commission (FCC) and Federal Communications Bar Association's (FCBA) Mass Media and Video Programming and Distribution Committees will host a brown bag lunch titled "Perspectives from the FCC Media Bureau". The FCBA bars reporters from some of its events. Location: National Association of Broadcasters, 1771 N St., NW.

5:00 PM. Deadline to submit comments to the Department of Commerce's (DOC) International Trade Administration's (ITA) Office of Intellectual Property Rights (OIPR) regarding protecting intellectual property rights abroad. See, notice in the Federal Register, September 30, 2010, Vol. 75, No. 189, at Pages 60408-60409, and story titled "Department of Commerce Commences Review of Foreign Barriers to Protection of IPR" in TLJ Daily E-Mail Alert No. 2,137, October 1, 2010.

Deadline to submit comments to the National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) regarding its draft SP 800-56 C [13 pages in PDF] titled "Recommendation for Key Derivation through Extraction then Expansion".

Deadline to submit comments to the Federal Trade Commission (FTC) in response to its notice in the Federal Register requesting comments on how to conduct a survey on consumer fraud. See, Federal Register: September 1, 2010, Vol. 75, No. 169, at Pages 53697-53699.

Election Day.

8:30 AM - 3:15 PM. The National Institute of Standards and Technology's (NIST) Technology Innovation Program (TIP) Advisory Board will meet. See, notice in the Federal Register, October 8, 2010, Vol. 75, No. 195, at Page 62369. NIST, Advanced Measurement Laboratory, Building 215, Room C103, Gaithersburg, MD.

10:00 AM. The Supreme Court will hear oral argument in Schwartzenegger v. Entertainment Merchants Association, Sup. Ct. No. 08-1448, a petition for writ of certiorari to the U.S. Court of Appeals (9thCir). The question presented is s California state statute that prohibit the sale of violent video games to minors under 18 violates the First Amendment. See, Supreme Court docket, and 9th Circuit's February 20, 2009, opinion. See also, story titled "9th Circuit Holds California Video Games Statute Unconstitutional" in TLJ Daily E-Mail Alert No. 1,902, February 23, 2009; story titled "Supreme Court Grants Cert in Video Game 1st Amendment Case" in TLJ Daily E-Mail Alert No. 2,081, April 30, 2010; and, story titled "California Files Brief with Supreme Court in Video Games First Amendment Case" in TLJ Daily E-Mail Alert No. 2,104, July 14, 2010.

1:00 - 2:30 PM. The American Bar Association (ABA) will host a webcast and teleconferenced panel discussion titled "Lawyer Websites: Ethical Traps and How to Avoid Them". See, notice. Prices vary. CLE credits.

7:30 AM - 1:30 PM. The National Journal will host a post election day conference titled "The Day After". See, notice and registration page. This event is free. Location: Grand Hyatt Washington, Independence Ballroom, 1000 H St., NW.

8:30 AM - 4:30 PM. Day one of a two day meeting of the National Archives and Records Administration's (NARA) Advisory Committee on the Electronic Records Archives (ACERA). See, notice in the Federal Register, October 14, 2010, Vol. 75, No. 198, at Pages 63208-63209. Location: NARA, 700 Pennsylvania Ave., NW.

9:00 AM - 4:30 PM. Day one of a three day meeting of the National Institute of Standards and Technology's (NIST) Information Security and Privacy Advisory Board (ISPAB). See, notice in the Federal Register, September 23, 2010, Vol. 75, No. 184, at Pages 57904-57905. Location: Marriott Hotel Washington, 1221 22nd St., NW.

9:00 AM. Day one of a two day partially closed meeting of the Department of Commerce's (DOC) Bureau of Industry and Security's (BIS) Information Systems Technical Advisory Committee. The agenda includes discussion of "Fault Tolerant Computer" and "Intel Technology Roadmap". See, notice in the Federal Register, October 19, 2010, Vol. 75, No. 201, at Pages 64258-64259. Location: DOC, Room 3884, 1401 Constitution Ave., NW.

2:00 - 4:00 PM. Day one of a three day meeting of the National Science Foundation's (NSF) Directorate for Mathematical and Physical Sciences Advisory Committee. See, notice in the Federal Register, October 13, 2010, Vol. 75, No. 197, at Page 62891. Location: NSF, Room 1005, 4201 Wilson Blvd., Arlington, VA.

6:00 - 9:15 PM. The DC Bar Association will host a panel discussion titled "Introduction to Export Controls". The speakers will be Thomas Scott (Ladner & Associates) and Carol Kalinoski. The price to attend ranges from $89 to $129. Reporters are barred from attending most DC Bar events. CLE credits. See, notice. For more information, call 202-626-3488. Location: DC Bar Conference Center, 1101 K St., NW.

Deadline to submit initial comments to the Copyright Office (CO) in response to its notice of proposed rulemaking (NPRM) regarding "whether a cable operator may receive refunds in situations where it has failed to pay for the carriage of distant signals on a system-wide basis under the Copyright Act, before it was amended to allow a cable system to calculate its royalty fees on a community-by-community basis." See, original notice in the Federal Register, October 4, 2010, Vol. 75, No. 191, at Pages 61116-61118, and correction notice in the Federal Register, October 12, 2010, Vol. 75, No. 196, at Page 62488. See also, story titled "Copyright Office Issues NPRM Regarding Refunds Under the Cable Statutory License" in TLJ Daily E-Mail Alert No. 2,140, October 11, 2010.

8:00 AM - 6:00 PM. Day two of a three day meeting of the National Science Foundation's (NSF) Directorate for Mathematical and Physical Sciences Advisory Committee. See, notice in the Federal Register, October 13, 2010, Vol. 75, No. 197, at Page 62891. Location: NSF, Room 1235, 4201 Wilson Blvd., Arlington, VA.

8:30 AM - 5:00 PM. Day two of a three day meeting of the National Institute of Standards and Technology's (NIST) Information Security and Privacy Advisory Board (ISPAB). See, notice in the Federal Register, September 23, 2010, Vol. 75, No. 184, at Pages 57904-57905. Location: Marriott Hotel Washington, 1221 22nd St., NW.

9:00 AM - 4:30 PM. Day one of a two day meeting of the National Archives and Records Administration's (NARA) Advisory Committee on the Electronic Records Archives (ACERA). See, notice in the Federal Register, October 14, 2010, Vol. 75, No. 198, at Pages 63208-63209. Location: NARA, 700 Pennsylvania Ave., NW.

9:00 AM. Day two of a two day partially closed meeting of the Department of Commerce's (DOC) Bureau of Industry and Security's (BIS) Information Systems Technical Advisory Committee. The agenda includes discussion of "Fault Tolerant Computer" and "Intel Technology Roadmap". See, notice in the Federal Register, October 19, 2010, Vol. 75, No. 201, at Pages 64258-64259. Location: DOC, Room 3884, 1401 Constitution Ave., NW.

9:30 AM. The Department of Commerce's (DOC) Bureau of Industry and Security's (BIS) Transportation and Related Equipment Technical Advisory Committee will hold a partially closed meeting. See, notice in the Federal Register, October 20, 2010, Vol. 75, No. 202, at Page 64700. Location: DOC, Room 6087B, 1401 Constitution Ave., NW.

9:30 AM - 5:00 PM. The President's Council of Advisors on Science and Technology (PCAST) will hold a partially closed meeting. See, notice in the Federal Register, October 12, 2010, Vol. 75, No. 196, at Page 62612. Location: Keck Center of the National Academies, 500 5th St., NW.

RESCHEDULED FOR NOVEMBER 30. 10:30 AM. The Federal Communications Commission (FCC) may hold an event titled "open meeting". Location: FCC, Commission Meeting Room, 445 12th St., SW.

12:00 NOON - 1:30 PM. The National Economists Club (NEC) will host a lunch. The speaker will be William Reinsch (National Foreign Trade Council). His topic is "Recreating a 21st Century Trade Policy". Prices vary. Location: Darlington House, 1610 20th St., NW.

1:00 - 4:00 PM. The Federal Communications Commission's (FCC) Technological Advisory Council will hold its first meeting. See, FCC release and story titled "FCC Creates Technological Advisory Council" in TLJ Daily E-Mail Alert No. 2,145, October 22, 2010. Location: FCC, Commission Meeting Room, 445 12th St., SW.

TIME? Day one of a two day event hosted by the National Institute of Standards and Technology (NIST) titled "Cloud Computing Forum & Workshop II". See, event web page, and notice in the Federal Register, October 19, 2010, Vol. 75, No. 201, at Page 64258. This event is free. The deadline to register is October 28, 2010. Location: NIST, Red Auditorium, 100 Bureau Drive, Gaithersburg, MD.

Day one of a two day event hosted by the U.S. Patent and Trademark Office (USPTO) titled "Independent Inventors Conference". Location: USPTO, Alexandria, VA.

8:00 AM - 3:00 PM. Day three of a three day meeting of the National Science Foundation's (NSF) Directorate for Mathematical and Physical Sciences Advisory Committee. See, notice in the Federal Register, October 13, 2010, Vol. 75, No. 197, at Page 62891. Location: NSF, Room 1235, 4201 Wilson Blvd., Arlington, VA.

8:00 AM - 12:30 PM. Day three of a three day meeting of the National Institute of Standards and Technology's (NIST) Information Security and Privacy Advisory Board (ISPAB). See, notice in the Federal Register, September 23, 2010, Vol. 75, No. 184, at Pages 57904-57905. Location: Marriott Hotel Washington, 1221 22nd St., NW.

9:00 AM - 12:00 NOON. The Federal Communications Commission's (FCC) Public Safety and Homeland Security Bureau (PSHSB) will hold a meeting "to discuss the development of a cybersecurity roadmap by the FCC". See, FCC release. The deadline to register is November 3, 2010. The FCC will webcast this event. Location: FCC, Commission Meeting Room, 445 12th St., SW.

Day two of a two day event hosted by the National Institute of Standards and Technology (NIST) titled "Cloud Computing Forum & Workshop II". See, event web page, and notice in the Federal Register, October 19, 2010, Vol. 75, No. 201, at Page 64258. This event is free. The deadline to register is October 28, 2010. Location: Gaithersburg Holiday Inn, Gaithersburg, MD.

Day two of a two day event hosted by the U.S. Patent and Trademark Office (USPTO) titled "Independent Inventors Conference". Location: USPTO, Alexandria, VA.

Deadline to submit comments to the Office of the U.S. Trade Representative (OUSTR) regarding "potential Internet and physical notorious markets that exist outside the United States". See, notice in the Federal Register, October 1, 2010, Vol. 75, No. 190, at Pages 60854-60855, and story titled "OUSTR Announces Separate Notorious Markets Process" in TLJ Daily E-Mail Alert No. 2,138, October 4, 2010.

Deadline to submit comments to the National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) regarding its draft NIST IR-7692 [38 pages in PDF] titled "Specification for the Open Checklist Interactive Language (OCIL) Version 2.0".