11/5. The Federal Communications Commission (FCC) released a Declaratory Ruling (DR) [12 pages in PDF] in which it held that going forward states may impose universal service taxes on the intrastate revenues of nomadic interconnected voice over internet protocol (VOIP) service providers.

The FCC acted upon a petition for declaratory ruling filed by the states of Nebraska and Kansas in June of 2009, and amended in September of 2010.

The FCC concluded that "we should not preempt the imposition of such requirements on nomadic interconnected VoIP providers so long as (1) the relevant state's contribution rules are consistent with the Commission's universal service contribution rules and (2) the state does not apply its contribution rules to intrastate interconnected VoIP revenues that are attributable to services provided in another state."

The FCC rejected arguments advanced by the Voice on the Net Coalition and Google. It wrote that "We disagree with commenters who argue that state universal service contribution requirements must be preempted to prevent frustration of the federal policies of encouraging the development of IP-based services and promoting the deployment of broadband infrastructure." (Footnote omitted.)

The FCC in 2006 decided that it could tax interconnected VOIP to subsidize its own outdated, and waste, fraud and abuse plagued, universal service programs. This DR now allows states to do the same.

Early in this millennium there was substantial support at the FCC for leaving new and innovative information and IP based services unburdened by the legacy regulatory regimes that were then applied only to communications carriers.

Those days are gone. The present DR represents one more in a long series of steps towards extending old regulatory regimes to new technologies.

FCC's 2004 Vonage VOIP Order. In November 2004 the FCC adopted a Memorandum Opinion and Order [41 pages in PDF] that addressed Vonage Holdings Corporation's Petition for Declaratory Ruling regarding its VOIP service in the state of Minnesota. The FCC found that Vonage's VOIP service is an interstate service, and that Minnesota cannot regulate as it had proposed in a September 2003 order.

The FCC refers to this as the "Vonage Preemption Order".

This MO&O is FCC 04-267 in WC Docket No. 03-211. See also, stories titled "FCC Adopts Order on Vonage's VOIP Petition" in TLJ Daily E-Mail Alert No. 1,015, November 10, 2004, and "FCC Releases Vonage VOIP Order" in TLJ Daily E-Mail Alert No. 1,018, November 15, 2004.

The U.S. Court of Appeals (8thCir) upheld the FCC's order in its March 21, 2007 opinion [22 pages in PDF] in Minnesota v. FCC. See, story titled "8th Circuit Denies Petitions for Review of FCC's Vonage VOIP Order" in TLJ Daily E-Mail Alert No. 1,555, March 21, 2007.

That case is Minnesota Public Utilities Commission v. FCC, and consolidated cases, U.S. Court of Appeals for the 8th Circuit, App. Ct. Nos. 05-1069, 05-1122, 05-3114, and 05-3118, petitions for review of a final order of the FCC.

The just released FCC DR asserts that "nothing in this Declaratory Ruling affects our conclusion in the Vonage Preemption Order concerning preemption of rate regulation, tariffing, or other requirements that operate as ``conditions to entry.´´ Nor should this order be construed as interpreting or determining the scope of the Vonage Preemption Order." (Footnote omitted.)

FCC's 2006 64.9% Rule. In June of 2006 the FCC adopted a Report and Order [151 pages in PDF] that requires interconnected VOIP providers to pay federal universal service taxes on interstate revenue. This R&O also arbitrarily set interstate revenue at 64.9% of total VOIP service revenue.

The FCC refers to this R&O as the "Interim Contribution Methodology Order".

This R&O is FCC 06-94 in in Docket Nos. 06-122, 04-36, 96-45, 98-171, 90-571, 92-237, 99-200, 95-116, 98-170. See also, story titled "FCC to Tax Interconnected VOIP Service Providers" in TLJ Daily E-Mail Alert No. 1,397, June 22, 2006, and story titled "FCC Releases Order and NPRM Regarding VOIP and Universal Service Taxes" in TLJ Daily E-Mail Alert No. 1,403, June 29, 2006.

Vonage v. Nebraska PSC. On May 6, 2009, the The U.S. Court of Appeals (8thCir) issued its opinion [10 pages in PDF] in Vonage v. Nebraska Public Service Commission, affirming the judgment of the District Court, which enjoined enforcement of a Nebraska state tax on nomadic interconnected VOIP.

The Court of Appeals wrote that "A reasonable interpretation of this language is the FCC has determined, given the impossibility of distinguishing between interstate and intrastate nomadic interconnected VoIP usage, it must have sole regulatory control. Thus, while a universal service fund surcharge could be assessed for intrastate VoIP services, the FCC has made clear it, and not state commissions, has the responsibility to decide if such regulations will be applied."

See, story titled "8th Circuit Affirms Injunction of Nebraska VOIP Tax" in TLJ Daily E-Mail Alert No. 1,935, May 6, 2009.

That case is Vonage Holding Corp. and Vonage Network, Inc. v. Nebraska Public Service Commission, et al., U.S. Court of Appeals for the 8th Circuit, App. Ct. No. 08-1764, an appeal from the U.S. District Court for the District of Nebraska

Following that court opinion, Nebraska, along with Kansas, filed a petition for declaratory ruling with the FCC.

The National Association of Regulatory Utility Commissioners (NARUC), which represents Nebraska's, Kansas's, and other state's telecom regulators praised the just released DR.

NARUC President David Coen stated in a release that "This decision is right on the law and right for consumers. It assures, as Congress intended, that nomadic Voice-over-Internet Protocol providers join other carriers supporting critical State universal service programs. This is a significant decision and we applaud the FCC for moving forward."

Nebraska Public Service Commission (NPSC) Commissioner Frank Landis stated that "This decision will have a tremendous impact on the future of quality phone and broadband service in Nebraska ... It's simply a matter of fairness".

The FCC adopted this item on October 28, 2010, but did not release it until November 5, 2010. It is FCC 10-185 in WC Docket No. 06-122.

11/5. AT&T's Hank Hultquist wrote a short piece titled "Price Regulation Buggy Whip Market", in which he urges the Federal Communications Commission's (FCC) to end its price regulation in the "consumer long distance market".

He wrote that "the FCC's rules prohibit carriers from charging higher prices to the consumer for ``long distance´´ calls, even though in some areas they incur significantly higher access charges from the local phone companies that ``originate´´ or ``terminate´´ those calls. Under both the FCC's rules and the telecom act, retail long distance prices must be averaged. Indeed, the purpose of this price regulation is to prevent carriers from pricing their services in order to reflect more precisely the cost of doing business."

He added that "one would think it has to be somewhat embarrassing for the FCC to be in the position of regulating pricing in an all-but non-existent market."

He proposes to end long distance access charges. "Just pick a date, say January 1, 2016. Adopt a rule that prohibits carriers from filing tariffs for switched access services, at both the federal and state levels, as of that date."

11/5. November 5, 2010, was the deadline to file comments with 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.

The International Intellectual Property Alliance (IIPA) submitted a comment [9 pages in PDF] in which it wrote that it "agrees with USTR’s assessment that global piracy continues to thrive due in part to marketplaces, both physical and online, that deal in infringing goods, and is grateful for the U.S. government's renewed focus on examples of such marketplaces that have been the subject of enforcement action or that merit further investigation for copyright infringements."

It then provided a list of physical and online privacy markets.

In contrast, the Public Knowledge filed a comment [5 pages in PDF] in which it argued that "it is unusual for an agency of the US government charged with trade policy to concern itself directly with law enforcement matters" and that the OUSTR should "abandon its move toward becoming a law enforcement agency".

It also wrote that "when identifying foreign companies it believes are violating the laws of their domicile nations, it should state whether it believes that they are direct or secondary infringers, and it should cite to the statutes these companies run afoul of".

Also, "before it places any company onto a watchlist of potential wrongdoers, the USTR must adhere to the basics of due process: Notice, and the opportunity to be heard."

11/3. The United Kingdom's (UK) Information Commissioner's Office (ICO) issued a release regarding the wi-fi surveillance conducted by the Google Street View (GSV) program. It states that "Google UK will be subject to an audit and must sign an undertaking to ensure data protection breaches do not occur again or they will face enforcement action".

This release adds that "there was a significant breach of the Data Protection Act when Google Street View cars collected payload data as part of their wi-fi mapping exercise in the UK".

It adds that the ICO will not impose a fine, and that "The Metropolitan Police has indicated that they are not pursuing an investigation."

Christopher Graham, the UK Information Commissioner also sent a letter [4 pages in PDF] to Google. He wrote that "My office now understands that GSV cars driving in the UK before May 2010 were equipped with the same equipment as the GSV cars in countries where regulators found some instances where entire emails and URLs were captured, as well as passwords. As such, my office believes that while most of the payload data gathered from the UK is fragmentary, in some instances it is possible that entire emails and URLs were captured, as well as passwords. It is my view that the collection of this information is a serious breach of the first data protection principle".

For more on this topic, see also:

• "FTC Ends Investigation of Google WiFi Intercepts" in TLJ Daily E-Mail Alert No. 2,147, October 28, 2010.
• "Google Intercepted E-Mail Content and Passwords" in TLJ Daily E-Mail Alert No. 2,146, October 25, 2010.
• "Canada Finds Google Violated Its Privacy Law" in TLJ Daily E-Mail Alert No. 2,145, October 22, 2010.

11/3. The Wall Street Journal (WSJ) published an article by Emily Steel and Geoffrey Fowlder on October 18, 2010, titled "Facebook in Privacy Breach". Rep. Ed Markey (D-MA) and Rep. Joe Barton (R-TX) sent a letter [PDF] to Mark Zuckerberg, CEO of Facebook, on October 18, that propounded interrogatories and requested documents regarding the WSJ's report that third party applications gathered and transmitted personally identifiable information about Facebook users and those users' friends. See, story titled "Representatives Markey and Barton Write Facebook About User Privacy" in TLJ Daily E-Mail Alert No. 2,143, October 20, 2010.

Zuckerberg responded by letter [PDF] dated October 29, 2010, which the Representatives released on November 3. He wrote that the sharing of user IDs (UIDs) "by Facebook with third-party applications does not involve the sharing of any private user data and is in no sense a privacy ``breach.´´ On the contrary, the sharing of UIDs is critical to people’s ability to use third-party applications on the Facebook Platform."

He continued, "When a Facebook user authorizes an application, he or she agrees to share certain information with the application -- including his or her Facebook UID -- so that the application can provide an innovative, social experience. As Facebook’s privacy policy explains, ``[w]hen you connect with an application or website it will have access to General Information about you. The term General Information includes your and your friends' names, profile pictures, gender, UIDs, connections, and any content shared using the Everyone privacy setting.´´"

Hence, wrote Zuckerberg, "any suggestion that the act of passing a UID to a third-party application is a ``breach´´ of that user's privacy is false".

He also wrote that "a Facebook UID at most enables access only to information that a user has already chosen to share and make publicly available". Moreover, Facebook has "plans for a mechanism that will prevent UIDs from being transmitted to applications via URL, and which in turn will prevent the inadvertent passing of UIDs via referrer URLs".

Rep. Barton responded in a release on November 3 that "the fact remains that some third-party applications were knowingly transferring personal information in direct violation of Facebook's privacy promises to its users".

He added that "Millions of people put their information into the hands of Facebook and services like it because they believe what they're told about walls protecting their privacy. I want the Internet economy to prosper, but it can't unless the people’s right to privacy means more than a right to hear excuses after the damage is done."

Rep. Barton also predicted that "In the next Congress, the Energy and Commerce Committee and our subcommittees are going to put Internet privacy policies in the crosshairs."

Rep. Markey said in the same release that "With privacy legislation under consideration by the Energy and Commerce Committee, I will continue to work with my colleagues to ensure that Facebook personal user data isn’t siphoned off and sold to a data broker who cannot be unfriended."

Also, Sen. John Rockefeller (D-WV), Chairman of the Senate Commerce Committee (SCC), sent a letters on October 26, 2010, to Mark Zuckerberg, CEO of Facebook, and Michael Jones, President of MySpace, that propound further questions.

11/9. President Obama announced his intent to nominate David Carden to be the Representative of the U.S. to the Association of Southeast Asian Nations (ASEAN). See, White House news office release. Carden is a partner in the New York City office of the law firm of Jones Day, and Co-Chair of its Securities Litigation & SEC Enforcement Practice.

11/4. The Business Software Alliance (BSA) announced in a release that it has named James Mackey (Special Agent, Federal Bureau of Investigation) and Tyler Newby (Trial Attorney, DOJ's Criminal Division's Computer Crime & Intellectual Property Section) as 2010 Cyber Safety Champions.

11/9. The Office of the U.S. Trade Representative (OUSTR) stated in a release that USTR Ron Kirk and Korean Minister for Trade Kim Jong-hoon "continued meeting today to discuss issues related to the U.S.-Korea trade agreement. Discussions between Ambassador Kirk and Minister Kim, and among additional U.S. and Korean trade officials, will continue tomorrow in Seoul.".

11/2. The National Labor Relations Board (NLRB) announced in a release that it brought an administrative complaint against American Medical Response of Connecticut, Inc. This release states that the complaint alleges that this "ambulance service illegally terminated an employee who posted negative remarks about her supervisor on her personal Facebook page". The NLRB added that "the employee's Facebook postings constituted protected concerted activity, and that the company’s blogging and internet posting policy contained unlawful provisions, including one that prohibited employees from making disparaging remarks when discussing the company or supervisors and another that prohibited employees from depicting the company in any way over the internet without company permission. Such provisions constitute interference with employees in the exercise of their right to engage in protected concerted activity."

The House is in recess until November 15.

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

9:00 AM - 4:00 PM. The Federal Communications Commission's (FCC) Consumer Advisory Committee will meet. See, notice and notice in the Federal Register, October 18, 2010, Vol. 75, No. 200, at Pages 63830-63831. Location: FCC, Room TW-C305, 445 12th St., SW.

9:00 - 10:30 AM. The US Telecom will host a panel discussion titled "Role of Broadband Providers in Utility Communications Networks". The speakers will be Robert Mayer (US Telecom), Mike Oldak (Utilities Telecom Council), Larry Plumb (Verizon), and Nick Sinai (FCC). Breakfast will be served. See, notice. Location: US Telecom, Suite 400, 607 14th St., NW.

10:00 AM. The Public Knowledge (PK) will hold a teleconferenced news conference to release a report by Michael Weinberg (PK) titled "It Will Be Awesome If They Don't Screw It Up: 3D Printing, Intellectual Property and the Fight Over the Next Great Disruptive Technology". The speakers will be Weinberg, Adrian Boyer (University of Bath), and Tiffany Rad. The call in number is 1-888-846-3889. The passcode is 887579. For more information, contact Art Brodsky at 202-861-0020 (PK), 301-908-7715 (cell), or abrodsky at publicknowledge dot org.

1:30 PM. The Patient Privacy Rights (PPR) will hold a news conference by teleconference to release the results of an online survey of individuals' views on privacy, access to health information, and health information technology. The speakers will be Deborah Peel (PPR), Sam Rogers (Zogby) and Corry Schiermeyer (Zogby). The call in number is 1-866-931-7845; the conference code is 820311. For more information, contact Katherine Johnson at 512-732-0033 or kjohnson at patientprivacyrights dot org. See, notice.

6:00 - 8:15 PM. The DC Bar Association will host a panel discussion titled "Export Controls and Economic Sanctions 2010: Recent Developments and Current Issues". 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.

Day three of a three day event titled "Open Web Application Security Project (OWASP) AppSec 2010 Conference". See, OWASP web site. At 10:45 AM, Joe Jarzombek (DHS's NPPD's Director of Software Assurance) will participate in a panel discussion of software security automation and management. Location: Washington Convention Center, 801 Mount Vernon Place, NW.

Deadline to submit requests to the Office of the U.S. Trade Representative (OUSTR) to present oral testimony at the OUSTR's November 19, 2010, public hearing regarding Malaysia's participation in ongoing negotiation of a Trans-Pacific Partnership (TPP) trade agreement. The OUSTR seeks comments on, among other things, "electronic commerce issues" and "trade-related intellectual property rights issues that should be addressed in the negotiations". See, notice in the Federal Register, October 20, 2010, Vol. 75, No. 202, at Pages 64778-64779.

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

9:00 AM - 12:30 PM. The University of Colorado's Silicon Flatirons (SF), Information Technology and Innovation Foundation (ITIF), and other groups will host a half day conference titled "The Unfinished Radio Revolution: New Approaches to Handling Wireless Interference". The speakers will be Robert Atkinson (ITIF), Pierre de Vries (SF), Dale Hatfield (SF), Michael Calabrese (New America Foundation), Ellen Goodman (Rutgers University -- Camden), Bruce Jacobs (Pillsbury Winthrop Shaw Pittman), Evan Kwerel (FCC Office of Strategic Planning and Policy Analysis), Gregory Rosston (Stanford University), Ari Fitzgerald (Hogan Lovells), Harold Feld (Public Knowledge), Thomas Hazlett (George Mason University), Michael Marcus (Marcus Spectrum Solutions LLC), Charla Rath (Verizon), and Cheryl Tritt (Wilkinson Barker Knauer). CLE credits. See, SF notice and ITIF notice. The ITIF will webcast this event. Location: ITIF/ITIC, 6th floor, 1101 K St., NW.

10:00 AM. The Department of Commerce's (DOC) Bureau of Industry and Security's (BIS) Materials Technical Advisory Committee will meet. See, notice in the Federal Register, November 2, 2010, Vol. 75, No. 211, at Pages 67347-67348. Location: DOC, Room 3884, 14th Street between Constitution & Pennsylvania Avenues, NW.

5:00 PM. Deadline to submit comments to the Department of Health and Human Services (DHHS) regarding its interim final rule regarding standards, implementation specifications, and certification criteria for electronic health record technology. The DHHS announced and recited this interim final rule in a notice in the Federal Register, October 13, 2010, Vol. 75, No. 197, at Pages 62686-62690.

Deadline to submit comments to the Federal Communications Commission (FCC) regarding the recommendations [105 pages in PDF] of the Advisory Committee for the 2012 World Radiocommunication Conference, and the recommendations [42 pages in PDF] of the National Telecommunications and Information Administration (NTIA). See, Public Notice (PN) released on October 28, 2010. This PN is DA 10-2060 in IB Docket No. 04-286.

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in American Bar Association v. FTC, App. Ct. No. 10-5057. Judges Rogers, Griffith and Edwards will preside. This case pertains to the Federal Trade Commission's (FTC) attempt to regulate attorneys as "creditors" within the meaning of Fair and Accurate Credit Transactions Act of 2003, Public Law No. 108-159. See, FTC brief. Location: Courtroom 11, Prettyman Courthouse, 333 Constitution Ave., NW.

11:30 AM - 2:00 PM. The American Constitution Society (ACS) will host an event titled "National Security, Government Transparency and the First Amendment". Beth Noveck (Deputy Chief Technology Officer in the Executive Office of the President) will give the keynote speech. There will also be a panel discussion. The speakers will be Adam Liptak (New York Times writer), Melanie Sloan (Citizens for Responsibility and Ethics in Washington), Vincent Warren (Center for Constitutional Rights), David Rivkin (Baker Hostetler), and Jerome Barron (George Washington University law school). Lunch will be served. This event is free. Registration is required. See, notice and registration page. Location: Carnegie Endowment for International Peace, 1779 Massachusetts Ave.,  NW.

12:30 - 2:00 PM. The Federal Communications Bar Association's (FCBA) Engineering and Technical and Wireless Committees will host a brown bag lunch titled "The Spectrum Inventory: Status and Implications". For more information, contact Christy Hammond, chammond at wileyrein dot com or 202-719-7365. Location: Wiley Rein, 1750 K St., NW.

Deadline to submit comments to the Department of Commerce's (DOC) National Telecommunications and Information Administration's (NTIA) Internet Policy Task Force (IPTF) regarding government policies that restrict global information flows on the internet. See, notice in the Federal Register, September 29, 2010, Vol. 75, No. 188, at Pages 60068-60073, and story titled "NTIA Seeks Comments on Governments' Restrictions of Free Flow of Information on the Internet" in TLJ Daily E-Mail Alert No. 2,137, October 1, 2010.

9:00 AM - 6:30 PM. The US Telecom will host an event titled "USTelecom Voice Innovation Summit". The price to attend ranges from $395 to $495. See, notice. For more information, contact Amanda Taylor at 202-326-7361 or ataylor at ustelecom dot org. Location: US Telecom, Suite 400, 607 14th St., NW.

2:00 - 3:30 PM. The Department of Justice's (DOJ) Antitrust Division's (AD) Economic Analysis Group (EAG) will host a presentation titled "Spectrum Auction Design". The speaker will be Peter Cramton (University of Maryland). For more information, contact Thomas Jeitschko at 202-532-4826 or atr dot eag at usdoj dot gov. Location: Liberty Square Building, 450 5th St., NW.

4:00 - 7:00 PM. The Information Technology and Innovation Foundation (ITIF) and Time Warner Cable will host an event titled "Perspectives on the Future of Digital Communications". The moderators will be Robert Atkinson (ITIF) and Fernando LaGuarda (Time Warner Cable). Dale Hatfield (University of Colorado at Boulder) will present a paper [16 pages in PDF] titled "The Challenge of Increasing Broadband Capacity". John Palfrey (Harvard law school) will present a paper [10 pages in PDF] titled "The Challenge of Developing Effective Public Policy on the Use of Social Media by Youth". Nicol Lee (Joint Center for Political and Economic Studies) will present a paper [12 pages in PDF] titled "The Challenge of Increasing Civic Engagement in the Digital Age". Scott Wallsten (Technology Policy Institute) will present a paper [8 pages in PDF] titled "The Future of Digital Communications Research and Policy". Christopher Yoo (University of Pennsylvania law school) will present a paper [16 pages in PDF] titled "The Challenge of New Patterns in Internet Usage". See, notice. This event if free and open to the public. Location: Chandelier Room, St. Regis Hotel, 16th and K Streets, NW.

9:00 AM. The Department of Commerce's (DOC) Bureau of Industry and Security's (BIS) Materials Processing Equipment Technical Advisory Committee (MPETAC) will hold a partially closed meeting. See, notice in the Federal Register, October 28, 2010, Vol. 75, No. 208, at Pages 66356-66357. Location: DOC, Room 6087B, 14th Street between Pennsylvania and Constitution Avenues, NW.

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