|McDowell Addresses Internet Regulation
11/20. Federal Communications Commission (FCC) Commissioner
Robert McDowell gave a
speech [4 pages in PDF] on Saturday, November 20, 2010, at the annual convention of the
Federalist Society in Washington DC.
He addressed ongoing debates over regulating the network management practices
of broadband internet access service (BIAS) providers.
McDowell (at left) said that "I have
absolutely no idea what's going to happen."
He also said that "Although Congress has not passed legislation on the matter, it has
not been silent either. In the past year, a large bipartisan majority of Congress (when was the
last time you heard those words strung together?) warned the Commission against trying to issue
net neutrality rules. More than 300 Members of Congress, including 86 Democrats, have demanded
that the Commission abandon its proposed course and leave this issue for Congress to decide.
It is my sense that the volume behind this message will only increase."
(Parentheses in original.)
He asked a series of rhetorical questions that further reflected his skepticism about
the merits of regulating the network management practices of BIAS providers.
For example, "Would brand new government regulation of privately
funded communications networks survive Constitutional muster, especially under
the First and Fifth Amendments?"
Also, "How could the U.S. justify being more regulatory than the European Commission,
when its chief digital agenda policy maker just last week announced that she opposes new
regulation of Internet network management?" See, November 11, 2010,
speech by Neelie Kroes, and story titled "Kroes Says No European
Commission Network Neutrality Mandates At This Time" in TLJ Daily E-Mail Alert
No. 2,156, November 15, 2010.
Also, "Wouldn't some proposed rules cause irreparable harm to network operators by
affecting their ability to raise crucial investment capital needed to modernize their
facilities, not to mention irreparably harming their ability to innovate?"
McDowell also reiterated his proposal apply antitrust principles ex ante to existing
anticompetitve conduct, rather than draft proscriptive rules. He proposals forming an
alliance of regulators and outside groups to examine whether there has been anticompetitive
conduct, and if so, apply antitrust law to it.
He said that he hopes that the FCC would consider his proposal before it "takes a
giant leap into a potentially dark and dangerous regulatory abyss".
He elaborated that the FCC "could lead a coordinated effort with
similarly inspired partners such as already established, non-governmental,
Internet governance groups, the Federal Trade Commission and other antitrust and
consumer protection agencies, public interest and consumer groups, trade
associations, academics, engineers, economists and others. This new alliance
could spotlight allegations of anticompetitive behavior and use already existing
consumer protection and antitrust laws to punish bad actors and aid consumers."
He argued that "Coupled with a continued drive to create new
opportunities for broadband competition, such an approach could help preserve
the open and freedom-enhancing Internet we enjoy under today's deregulatory
model, all without the uncertainty, costs and risks new rules always bring. My
door remains open for discussing the creation of such a framework."
The Federalist Society is membership organization, most of whose members are
law professors, government officials, lawyers, and law students who advocate an
originalist interpretation of the U.S. Constitution. They also tend to turn to
the Federal Papers,
written during the debate over ratification of the Constitution, for guidance.
The drafters of the Constitution deliberately created a system of government
in which it would be difficult for the government to act, including by enacting
legislation, through a separation of powers, and other means. James Madison
explained and defended this notion of separation of powers in Federalist Papers
No. 10 and
In the 20th Century, rulemaking agencies such as the FCC were created, in significant
part, to evade the Constitutionally created institutions that made it inherently
difficult to enact legislation. (Agencies such as the FCC were also given adjudicatory
authority that evade the procedural protections afforded in the Constitutionally created
judicial branch.) Nevertheless, some persons who have worked at the FCC in
senior positions have also espoused some of the views of other Federalist Society
members, and participated in Federalist Society activities.
TLJ has written several pieces over the years that have commented upon the role of the
FCC as a means to evade the Constitutionally created protections against government action.
See, for example, "Commentary: Administrative Process and the FCC" in
TLJ Daily E-Mail Alert No.
1,365, May 8, 2006, and "Commentary: The Legislative Function of the FCC" in
TLJ Daily E-Mail Alert No.
2,083, May 6, 2010.
|Free Press Paper Urges FCC to Reclassify
11/22. The Free Press (FP) released a
paper [66 pages in PDF] titled "Restoring FCC Authority to Make Broadband
Policy: A Way Forward After Comcast v. FCC". The author is the FP's Aparna Sridhar.
This paper argues that "the FCC can and should classify broadband Internet connectivity
as a telecommunications service under Title II of the Communications Act. It should also
pair that action with tailored forbearance pursuant to the Act."
It elaborates that the FCC should define broadband internet connectivity as "sending
and receiving of IP data packets from end to end on the network of networks known as the
Internet". In addition, this "must include IP data transmission over wireless
Then, the paper argues, the FCC "must apply section 201, 202, 208, 222, 251(a), 255,
and 256 of the Act to all broadband service providers. To facilitate interconnection and
competition, it should also retain section 214's oversight over service discontinuances and
preserve its ability to apply the unbundling provisions of section 251(b) and (c)."
Section 201, 202, and 208 are the core powers of Title II.
47 U.S.C. § 201 treats service providers as common carriers, requires them
to provide service, requires interconnection, requires that all "charges ... be
just and reasonable", and authorizes the FCC to write "rules and regulations as
may be necessary in the public interest".
47 U.S.C. § 202 provides, in part, that "It shall be unlawful for any common
carrier to make any unjust or unreasonable discrimination in charges, practices,
classifications, regulations, facilities, or services for or in connection with
like communication service, directly or indirectly, by any means or device, or
to make or give any undue or unreasonable preference or advantage to any
particular person, class of persons, or locality, or to subject any particular
person, class of persons, or locality to any undue or unreasonable prejudice or
47 U.S.C. § 208 provides that anyone may file a complaint against a common
carrier, and that the FCC has adjudicatory authority with respect to that
This paper also asserts that such reclassification would withstand judicial review.
The FCC adopted a
Notice of Inquiry (NOI) [64 pages in PDF] that proposes to reclassify
broadband internet access services as Title II services. See, story titled "FCC
Adopts Broadband Reclassification NOI" and related stories in
TLJ Daily E-Mail
Alert No. 2,097, June 18, 2010.
This paper also urges the FCC to act in the absence of new Congressional
legislation. It states that "the legislative process necessarily operates more
slowly than the administrative process". The paper does not address the
absence of sufficient support in the Congress to pass a bill.
Sridhar stated in a
release that "We can't wait for five or 10 years to get rural and low-income
Americans hooked up to broadband. And we can't wait for five or 10 years to create policy
preserving principles of openness that have made the Web so successful thus far. The public
needs those changes now, and the FCC is really its only hope."
Susan Crawford (Cardozo law school), who assisted in the drafting of this paper, stated in
this release that the FCC "made a mistake in 2002". In that year it determined that
cable modem service is an information service, not a telecommunications service.
|USPTO Again Extends Patent Backlog
11/22. The U.S. Patent and Trademark Office
(USPTO) extended its Patent Application Backlog Reduction Stimulus Plan to
December 31, 2011. Under this plan patent applicants may have an application
accorded special status for examination if the applicant expressly abandons
another copending unexamined application. See,
notice in the
Federal Register, November 22, 2010, Vol. 75, No. 224, at Page 71072.
The plan was scheduled to expire on December 31, 2010. The USPTO added that
it "will run until 10,000 petitions have been granted or until December 31,
2011, whichever occurs earlier. The USPTO may further extend this plan (on
either a temporary or permanent basis), or may also discontinue the plan after
December 31, 2011, if 10,000 petitions have not been granted, depending upon the
results of the plan." (Parentheses in original.)
Kappos (at right), head of the USPTO, stated in a
release that "the
program has the potential to help reduce the backlog of unexamined patent
applications pending before the USPTO. We hope more applicants will take
advantage of this opportunity".
The USPTO first announced this plan on November 27, 2009, and subsequently
altered and extended it. See,
notice in the
Federal Register, November 27, 2009, Vol. 74, No. 227, at Pages 62285-62287;
notice in the
Federal Register, February 1, 2010, Vol. 75, No. 20, at Page 5041;
notice in the
Federal Register, June 24, 2010, Vol. 75, No. 121, at Pages 36063-36064; and
story titled "USPTO To Allow All Applicants Special Status for Examination Who
Abandon a Copending Unexamined Application" in
TLJ Daily E-Mail
Alert No. 2,102, July 12, 2010.
|USPTO Issues Another NPRM on BPAI Ex Parte
11/15. The U.S. Patent and Trademark Office
(USPTO) published a
notice in the Federal Register that announces, describes and sets the
comment deadline for a notice of proposed rulemaking (NPRM) in its long running
consideration of its rules of practice before the
Board of Patent Appeals
and Interferences (BPAI) in ex parte patent appeals.
head of the USPTO, stated in a
release that "We hear
often from stakeholders that the patent appellate process is too complicated and
burdensome ... The goal of this proposed rulemaking is to simplify the appellate
process in a way that reduces the burden on appellants and examiners to present
an appeal to the Board."
The USPTO issued a NPRM on this subject in 2007. See,
notice in the
Federal Register, July 30, 2007. Vol. 72, No. 145, at Pages 41472-41490. It then
issued rules. See,
notice in the Federal Register, June 10, 2008, Vol. 73, No. 112, at Page
32937-32977. However, the USPTO issued another notice staying those rules. See,
notice in the
Federal Register, December 10, 2008, Vol. 73, No. 238, at Page 74972.
The USPTO issued an Advance Notice of Proposed Rulemaking (ANPRM) late last
year proposing further modifications to the stayed final rule and seeking public
comment. 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.
(The USPTO, like the Department of Justice, has used the terms "Advance" NPRM
and "Advanced" NPRM interchangeably. The Administrative Procedure Act (APA), at
5 U.S.C. § 553, uses neither.)
The present notice states that the USPTO is "proposing to rescind the stayed
final rule and is issuing this notice seeking public comment on proposed new
revisions to the current rule."
The notice takes up 23 pages in the Federal Register, and contains numerous
proposed revisions. The USPTO's release highlights some of these proposals.
- "Eliminating a number of briefing requirements that ask for information
that is readily available in the file history (e.g., statements of the status
of claims, status of amendments, grounds of rejection to be reviewed on
appeal, the claims appendix, evidence appendix, and related proceedings
appendix)." (Parentheses in original.)
- "Providing that only those claim limitations in dispute will need to be
identified in the statement of the summary of the claimed subject matter."
- "Providing for a simplified examiner’s answer that focuses on addressing
the applicant’s arguments rather than repeating the final rejection."
- "Providing that any new evidence relied upon in a rejection set forth in
an examiner’s answer shall be designated as a new ground of rejection."
Comments are due by 5:00 PM on January 14, 2011. See, Federal Register,
November 15, 2010, Vol. 75, No. 219, at Pages 69827-69849.
|This issue contains the following items:
• McDowell Addresses Internet Regulation Proposals
• Free Press Paper Urges FCC to Reclassify Broadband
• USPTO Again Extends Patent Backlog Reduction Plan
• USPTO Issues Another NPRM on BPAI Ex Parte Appeals
• People and Appointments
• More News
New items are highlighted in
|Tuesday, November 23
The House will not meet. It will next meet on
Monday, November 29, 2010, at 2:00 PM. See,
The Senate will not meet. It will next meet on
Monday, November 29, 2010, at 2:00 PM.
Supreme Court conference day (discussion of argued
cases, and decision on cert petitions). Closed.
10:30 - 11:00 PM. Federal Communications
Commission (FCC) Chairman Julius
Genachowski and Arlington County, Virginia, public safety officials will meet to
discuss next generation 911 services. This event is open to reporters. Location: Arlington
County Emergency Communications Center, 8th Floor Conference Room, 1425 North Courthouse
Road, Arlington, VA.
10:30 AM - 12:00 NOON. The Heritage
Foundation will host a panel discussion titled "Southeast Asian Economic Community
and American Interests". The speakers will include
Barbara Weisel, Assistant U. S. Trade Representative for Southeast Asia and the Pacific.
See, notice. The HF will
webcast this event. Location: HF, 214 Massachusetts Ave., NE.
|Wednesday, November 24
Deadline to submit initial comments to the Federal
Communications Commission (FCC) in response to its October 25, 2010,
Public Notice (PN) regarding its closed captioning rules. This PN
is DA 10-2050 in CG Docket 05-231, ET Docket No. 99-254. See,
notice in the
Federal Register, November 17, 2010, Vol. 75, No. 221, at Pages 70168-70169.
|Thursday, November 25
Thanksgiving Day. This is a federal holiday. See, Office of
Personnel Management's (OPM)
page titled "2010 Federal Holidays". This is also a Supreme
|Friday, November 26
Deadline to submit comments to the Department of Defense (DOD) in response
to its notice of proposed rulemaking regarding amending its Defense Federal Acquisition
Regulation Supplement (DFARS) regarding patents, data, and copyrights, including for
software. See, notice in
the Federal Register, September 27, 2010, Vol. 75, No. 186, at Pages 59411-59468.
|Monday, November 29
The House will meet at 2:00 PM. See,
The Senate will meet at 2:00 PM.
9:00 AM. The
House Ethics Committee (House Committee on Standards
of Official Conduct) will hold its "adjudicatory hearing" in the matter of
Rep. Maxine Waters (D-CA). See,
notice [PDF]. See,
Deadline to submit initial comments to the Federal Communications
Commission (FCC) in response to its
Notice of Proposed Rulemaking (NPRM) [25 pages in PDF] regarding commercial radio
operator licenses for maritime and aviation radio stations who perform certain functions
performed within the commercial radio operators service. The FCC adopted this item on
August 31, 2010, and released the text on September 8, 2010. It is FCC 10-154 in WT Docket
No. 10-177. See, notice in
the Federal Register, October 29, 2010, Vol. 75, No. 209, at Pages 66709-66715.
Deadline to submit comments to the Copyright Royalty Judges (CRJ) in
response to the CRJ's request for comments on a motion of Phase I claimants
for partial distribution in connection with the 2008 cable royalty funds.
The CRJ also request comments as to the existence of Phase I and Phase II
controversies with respect to the distribution of 2008 cable royalty funds.
See, notice in
the Federal Register, October 29, 2010, Vol. 75, No. 209, at Pages 66798-66799.
Deadline to submit comments to the Copyright Royalty Judges (CRJ) in
response to the CRJ's request for comments on a motion of Phase I claimants for partial
distribution in connection with the 2008 satellite royalty funds. The CRJs also
request comments as to the existence of Phase I and Phase II controversies with respect
to the distribution of 2008 satellite royalty funds. See,
notice in the
Federal Register, October 29, 2010, Vol. 75, No. 209, at Pages 66799-66800.
|Tuesday, November 30
9:00 AM - 2:00 PM. The Department of Commerce's (DOC) National Medal
of Technology and Innovation Nomination Evaluation Committee will hold a closed meeting.
See, notice in the
Federal Register, November 15, 2010, Vol. 75, No. 219, at Pages 69631-69632.
Location: USPTO, 600 Dulany Street, Alexandria, VA.
10:30 AM. The Federal Communications Commission (FCC) will hold an event
titled "open meeting". See,
tentative agenda [PDF] and story titled "FCC Releases Tentative Agenda for November
30 Event" in TLJ Daily E-Mail Alert No. 2,150, November 8, 2010. Location: FCC,
Commission Meeting Room, 445 12th St., SW.
12:30 - 5:30 PM. The American
University (AU) law school will host a conference titled "Social Networking and
Litigation: Friend or Unethical Foe?" The price is free for attendance, but $55 for
CLE credits. See,
registration page. For more information, contact AU at 202-274-4075 or secle
at wcl dot american dot edu. Location: 4801 Massachusetts Ave., 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 "The New Hour: Measuring the Value of Local
Television News". The speaker will be
(Hunter College). 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.
6:00 - 9:00 PM. Ericsson and the
Federal Communications Bar Association's (FCBA)
International and Wireless Telecommunications Committees will host an event titled "Holiday
Program and Networking Reception". Location: 2900 K St., NW.
11:59 PM. Deadline to submit comments to the Executive Office of
the President's (EOP) Office of Science and Technology
Policy's (OSTP) National Science and Technology Council's (NSTC) Nanoscale Science,
Engineering, and Technology Subcommittee regarding the
draft document [48 pages in PDF] titled "2010 National Nanotechnology
Initiative Strategic Plan". See,
notice in the Federal
Register, November 1, 2010, Vol. 75, No. 210, at Pages 67149-67150.
However, the OSTP states that it only wants one page comments.
Deadline to submit comments to the Department of Justice's (DOJ)
Antitrust Division regarding the proposed final
judgment in USA v. Adobe, et al., D.C. No. 1:10-CV-01629. The DOJ initiated
and settled an action against Adobe Systems, Apple, Google, Intel, Intuit, and Pixar alleging
violation of Section 1 of the Sherman Act, which is codified at
U.S.C. § 1, in connection with their anticompetitive conduct in the hiring of highly
skilled technical employees. The settlement requires public notice and comment, and approval
by the District Court. The DOJ's
notice in the Federal Register states that comments are due within 60 days of publication
of its notice in the Federal Register. However, it does not fix an actual date. See, Federal
Register, October 1, 2010, Vol. 75, No. 192, at Pages 61419-61424. See also, story titled
"DOJ Stops Tech Companies' Anticompetitive Hiring Practices" in TLJ Daily E-Mail
Alert No. 2,133, September 27, 2010.
11/22. Google published a notice
in its web site announcing that it will provide $7,500 stipends to university students to work
at public policy groups on information technology issues during the summer of 2011 under its
Google Policy Fellowship Program. Google states that "Selected students will spend
ten weeks this summer working on issues as varied as free expression, privacy, security, and
intellectual property". Previously, selected students have worked for the
Center for Democracy and Technology (CDT),
Media Access Project (MAP),
New America Foundation (NAF),
Public Knowledge (PK),
Technology Policy Institute (TPI), and
other groups. January 17, 2011 is the deadline to submit applications.
11/19. Jennifer McHugh was named acting Director of the Securities and Exchange
Commission's (SEC) Division of
Investment Management. She replaces Andrew Donohue, who is leaving the SEC. The
SEC will later name a permanent Director. See, SEC
11/18. Rebecca Blank was name acting Deputy Secretary of Commerce. Blank went to work
at the Department of Commerce (DOC) in 2009 as head of its
Economics and Statistics Administration (ESA). See,
11/23. The Government Accountability Office (GAO)
released a report [76 pages in PDF]
titled "Information Technology: HUD Needs to Better Define Commitments and Disclose
Risks for Modernization Projects in Future Expenditure Plans".
11/20. The US and European Union issued a
joint statement, that provides, among other things, that "We also agreed to coordinate
efforts to encourage emerging economies to assume responsibilities and adopt policies
commensurate with their growing economic strength and role in areas such as trade,
protection of intellectual property, regulation, and investment policy."
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Copyright 1998-2010 David Carney. All rights reserved.