12/20. The Copyright Office (CO) published a Notice of Proposed Rulemaking (NPRM) regarding designating exemptions to the anti-circumvention provisions of the Digital Millennium Copyright Act (DMCA). This pertains to the fifth triennial rulemaking required by the 1998 DMCA.

See, notice in the Federal Register, Vol. 76, No. 244, December 20, 2011, at Pages 78866-78868.

This notice announces two deadlines. The deadline to submit comments is 5:00 PM on February 10, 2012. In addition, this notice states that "A proponent of a particular class of works will not be permitted to submit an initial comment in support of that class in response to this Notice unless, at least 15 days before the deadline for comments (i.e., before January 27, 2012), the proponent has submitted a written request for permission to submit an initial comment demonstrating good cause to permit the submission of the comment, and the Office has approved the submission of the comment." (Parentheses in original.)

On September 29, 2011, the CO published a Notice of Inquiry (NOI) in this proceeding, which notice requested comments. See, notice in the Federal Register, and story titled "Copyright Office Opens 5th Triennial Proceeding on DMCA Anti-Circumvention Exemptions" in TLJ Daily E-Mail Alert No. 2,306, September 29, 2012.

The CO website contains a page that lists, summarizes, and provides hyperlinks to, comments submitted in response to the September 29 NOI. See also, related story in this issue titled "Summary of Proposed Exemptions to Anticircumvention Provisions § 1201".

Summary of Section 1201. The anti-circumvention provisions of the DMCA are codified at 17 U.S.C. § 1201, et seq. Subsection 1201(a)(1)(A) provides that "No person shall circumvent a technological measure that effectively controls access to a work protected under this title ...".

Then, § 1201(a)(2)(A) provides that "No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that --- (A) is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work protected under this title;"

Furthermore, § 1201(b)(1)(A) provides that "No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that --- (A) is primarily designed or produced for the purpose of circumventing protection afforded by a technological measure that effectively protects a right of a copyright owner under this title in a work or a portion thereof; ..."

Then, Subsections 1201(a)(1)(B) through (E) provide for rulemaking proceedings conducted by the CO every three years to establish exemptions to the prohibition of (a)(1)(A) for certain non-infringing uses.

Exemptions Currently in Effect. The rules currently in effect, which are codified at 37 C.F.R. § 201.40, designate six exemptions to the prohibition: (1) certain movies on DVD protected by CSC, (2) certain programs that enable wireless phones (especially the iPhone) to execute software applications, (3) programs that enable used wireless phones to connect to a wireless telecommunications network if allowed by the network operator, (4) certain video games, for the purpose of investigating or correcting security flaws, (5) certain programs protected by dongles, and (6) e-book when all e-book editions of the work do not allow read aloud functions.

See also, story titled "Copyright Office Releases 4th Triennial DMCA Exemptions" in TLJ Daily E-Mail Alert No. 2,115, July 30, 2010. The CO was late in releasing its fourth set of rules. The FR notice states that the CO will release it 5th triennial rules by February 15, 2012.

Prior Triennial Reviews. The CO published its third triennial review exemptions on November 27, 2006. See, notice in the Federal Register, November 27, 2006, Vol. 71, No. 227, at Pages 68472-68480. These exemptions were effective from November 27, 2006 through October 27, 2009, and then extended through July 27, 2010.

See also, stories titled "Copyright Office Announces Proceeding on DMCA Anti-Circumvention Exemptions" in TLJ Daily E-Mail Alert No. 1,229, October 7, 2005; "Copyright Office Delays Release of Triennial DMCA Exemptions Rule" in TLJ Daily E-Mail Alert No. 1,478, October 30, 2006; and "Copyright Office Releases DMCA Anti-Circumvention Exemptions" in TLJ Daily E-Mail Alert No. 1,494, November 27, 2006.

The CO published its second triennial review exemptions in a notice in Federal Register, October 31, 2003, Vol. 68, No. 241, at Pages 62011-62018.

The CO published its first triennial review exemptions in a notice in Federal Register, October 27, 2000, Vol. 65, No. 209, at Pages 64555-64574.

12/20. The Copyright Office (CO) is conducting its fifth triennial rulemaking proceeding to designate exemptions to the anti-circumvention provisions of the 1998 Digital Millennium Copyright Act (DMCA). The CO has received numerous comments that propose one or more exemptions. The CO website contains a page that lists, summarizes, and provides hyperlinks to, these comments. This article summarizes key proposals.

If someone employs technological measures that effectively controls access to a work protected by copyright, then § 1201 prohibits circumvention of such measures. The purpose of the DMCA is to limit unauthorized copying and distribution of digital works protected by copyright, thereby furthering the ability of copyright holders to derive revenues from sales of sales of copies, streaming, or other forms of distribution.

One theme that runs through many of the significant pending comments is that exemptions ought to be created when someone is using a technological measure that effectively controls access to a digital work, but the purpose is not to protect its revenue stream from a copyrighted work, but rather to protect some other commercial interest.

In particular, some businesses use technological measures and assertion of § 1201 to tie or bundle products and services together. Some businesses use § 1201 to leverage their position in the market with respect to one product or service to compel or incent consumers to also consume their other products or services. Commenters argue that it is not a purpose of copyright law generally, or the DMCA specifically, to protect this strategy. They seek exemptions that would further consumers' choice of products and services in the face of attempts to tie and bundle.

For examples, proposed exemptions would preclude companies from asserting violation of § 1201 to prevent jailbreaking wireless devices from the designated wireless service, and to undermine the Google Android and iPhone app store distribution model.

Other proposed exemptions address the use of technological measures to protect digital copies of books that are in the public domain, circumvention of digital copies movies associated with extraction of portions, circumvention of digital copies of movies associated with hearing disability accessibility, and circumvention of e-books associated with vision disability accessibility.

Expanding the Interoperability and Network Connection Exemptions. The current rule contains two relevant exemptions that commenters seek to have extended and broadened.

First, there is an exemption for "Computer programs that enable wireless telephone handsets to execute software applications, where circumvention is accomplished for the sole purpose of enabling interoperability of such applications, when they have been lawfully obtained, with computer programs on the telephone handset."

Second, there is an exemption for "Computer programs, in the form of firmware or software, that enable used wireless telephone handsets to connect to a wireless telecommunications network, when circumvention is initiated by the owner of the copy of the computer program solely in order to connect to a wireless telecommunications network and access to the network is authorized by the operator of the network."

The Software Freedom Law Center (SFLC) submitted a comment in which it proposed an exemption for "Computer programs that enable the installation and execution of lawfully obtained software on a personal computing device, where circumvention is performed by or at the request of the device's owner."

The SFLC proposal would expand the current concept from "wireless telephone handsets" to any "personal computing device", including tablet computers and e-book readers, as well as laptop and desktop computers.

This proposal seeks in part to undermine the enforceability of the app store distribution model used by Apple iOS and Google Android, and deter the spread of this business model to other platforms.

The SFLC argues that the basic principle behind its request is that "technological protection measures should not restrict device owners from running whatever software they choose simply because such restrictions serve the manufacturers' interests".

It argues that app store model "restrictions threaten to give operating system vendors monopolistic control over application development and distribution on what have previously been unrestricted platforms that engendered competition in the market and enabled user control".

The SFLC proposal would also expand the concept of the current rule to include the operating systems of personal computing devices.

The SFLC proposes to allow circumvention for both application locks, and operating system locks.

It notes that the device makers argue that this is necessary for security reasons. However, the SFLC counters that users also circumvent operating system locks to protect their security. It wrote that such locks "prevent the user from removing spyware intentionally installed by the manufacturer. This malicious software, which reports a user's activity to the carrier or manufacturer, is itself a security risk and a significant privacy intrusion. iOS and Android phones continuously (and often secretly) report their users' physical location to Apple or Google. As typically configured by Google and its partners, Android funnels a huge portion of a user's communications through Google's servers, giving Google access to most of a user's important interactions. The only way to definitively disable all such tracking is to replace the preinstalled operating system with a free software version that is verifiably free of spyware." (Footnote omitted. Parentheses in original.)

The Electronic Frontier Foundation (EFF) submitted a comment in which it proposed two related exemptions. First, it proposed expanding the current interoperability exemption to include "tablets".

Second, it proposed a new interoperability exemption for "video game consoles". It states that Sony, Microsoft, and Nintendo all "have deployed technical restrictions that force console purchasers to limit their operating systems and software exclusively to vendor-approved offering". It argues that such restriction "severely constrains not only consumer choice and the value of the console to its owner, but also the incentives for independent developers to create copyrightable systems and software that would expand the marketplace for these devices".

The Consumers Union submitted a comment in which it proposed an exemption that would expand the network connection exemption. It would cover "Computer programs, in the form of firmware or software, including data used by those programs, that enable mobile devices to connect to a wireless communications network, when circumvention is initiated by the owner of the device to remove a restriction that limits the device's operability to a limited number of networks, or circumvention is initiated to connect to a wireless communications network."

This would expand the current rule in many ways. For example, it would expand from the current "wireless telephone handsets" to any "mobile device", which would encompass tablets, e-book readers, and other devices.

It would also encompass not only accessing programs and software, but also "data used by those programs".

Other commenters also proposed expanding the network connection exemption. See, comment of Youghiogheny Communications, comment of MetroPCS Communications, and comment of the RCA.

TPMs that Protect Books in Public Domain. The Open Book Alliance (OBA) submitted a comment in which it proposed an exemption for circumventing technological protection measures (TPM) that protect "digital copies of literary works in the public domain". The proposed exemption would not be limited to Google, but it is directed at Google's business practices.

The OBA explains that Google, through "systematic scanning" at large libraries, "has reproduced millions of books in their entirety, including both those in the public domain" and those under copyright. The OBA adds that contracts between Google and these libraries require the libraries to implement TPMs to restrict automated access to any portion of the scanned books, including those in the public domain, that are in the libraries' web sites.

The OBA states that this exemption would have "no effect on TPMs used under authority of a copyright owner to protect its copyright. Rather, it focuses on the TPMs used by Google to benefit its business interests in restricting online access to public domain works."

The anticircumvention provisions § 1201 apply only to a "a work protected under this title". This title -- Title 17 -- only protects works subject to copyright. Hence, the OBA's proposal would not create an actual exemption.

The OBA concedes as much in the comment submitted to the CO. It wrote, "To be clear, we are aware of no reason that a technological protection measure applied to a public domain work would give rise to liability under Section 1201." Nevertheless, the OBA wants the CO to render a conclusion, or adopt an exemption.

However, the OBA states differently in its web site. "TPMs like the ones Google requires are backed up by the force of law, specifically Section 1201 of the Digital Millennium Copyright Act. That law imposes civil and criminal penalties on anyone who tries to circumvent or disable TPMs without permission of the copyright owner. We believe strongly that this law should never be used by Google to threaten civil and criminal liability on users of digital public domain books, particularly where such threats could cause substantial harm to competition."

It might be argued that the OBA's real objection is not to the operation of the DMCA, but rather to the contracts between Google and libraries. However, if the CO were to create an exemption, the contracts would remain in effect. Moreover, the CO has no authority to abrogate contracts. Other options open to the OBA include complaining to the Federal Trade Commission (FTC) or Department of Justice (DOJ) Antitrust Division that Google is engaging in anticompetitive practices in violation of antitrust law, or that it is engaging in unfair or deceptive trade practices in violation of the FTC Act.

The OBA is represented by Gary Reback, an antitrust lawyer who focused attention on Microsoft in the 1990s.

Circumvention of Movies Associated with Extraction of Portions. Numerous commenters asked for an exemption the would continue and expand the current exemption for accessing portions of movies.

The current exemption is as follows:

"Motion pictures on DVDs that are lawfully made and acquired and that are protected by the Content Scrambling System when circumvention is accomplished solely in order to accomplish the incorporation of short portions of motion pictures into new works for the purpose of criticism or comment, and where the person engaging in circumvention believes and has reasonable grounds for believing that circumvention is necessary to fulfill the purpose of the use in the following instances:
  (i) Educational uses by college and university professors and by college and university film and media studies students;
  (ii) Documentary filmmaking;
  (iii) Noncommercial videos."

For example, the University of Michigan (UM), which operates a large library system, and has entered into one of the anticompetitive contracts with Google complained about by the Open Book Alliance (OBA), submitted a comment that seeks a DMCA exemption for its own benefit.

The UM wants the current exemption extended, and expanded. It wants the exemption to apply to anyone at a college or university, and not just those in film and media studies. The UM also want the exemption to apply to any works, and not just "Motion pictures on DVDs".

The EFF's comment seeks one exemption to cover "Audiovisual works on DVDs that are lawfully made and acquired and that are protected by the Content Scrambling System, where circumvention is undertaken for the purpose of extracting clips for inclusion in primarily noncommercial videos that do not infringe copyright, and the person engaging in the circumvention believes and has reasonable grounds for believing that circumvention is necessary to fulfill the purpose of the use."

The EFF seeks a second parallel exemption for "Audiovisual works that are lawfully made and acquired via online distribution services ... and the works in question are not readily available on DVD".

See also, related comment of the International Documentary Association and others that seeks one exemption for "documentary filmmaking" or "fictional filmmaking", and a second exemption "to obtain the motion picture for multimedia e-book authorship".

See also, comment of the Library Copyright Alliance seeking renewal of the current exemption.

See also, comment of the Peter Decherney and others seeking an expanded exemption that would reach "all audio visual works" and be available to "college and university students or faculty".

Circumvention Associated with Hearing and Vision Disability Accessibility. There is currently an exemption: "Literary works distributed in ebook format when all existing ebook editions of the work (including digital text editions made available by authorized entities) contain access controls that prevent the enabling either of the book’s read-aloud function or of screen readers that render the text into a specialized format."

The American Council of the Blind (ACB) and the American Foundation for the Blind (AFB) submitted a comment that requests an exemption for any electronic literary work that "(i) contains digital rights management and/or other access controls which either prevent the enabling of the book’s read-aloud functionality or which interfere with screen readers or other applications or assistive technologies that render the text in specialized formats; and (ii) is legally obtained by blind or other persons with print disabilities (as such persons are defined in section 121 of Title 17, United States Code), or is legally obtained by authorized entities (as defined in such section) distributing such work exclusively to such persons." (Parentheses in original.)

The Telecommunications for the Deaf and Hard of Hearing, Inc., Gallaudet University, and Participatory Culture Foundation submitted a comment that lists five new exemptions related to making movies and other audiovisual works accessible to persons with disabilities.

Miscellaneous Comments. The CO also received numerous other comments that request exemptions. Some are brief, and some are less likely to result in the designation of an exemption.

The Public Knowledge (PK) submitted a comment requesting an exemption for "Motion pictures on lawfully made and lawfully acquired DVDs that are protected by the Content Scrambling System when circumvention is accomplished solely in order to accomplish the noncommercial space shifting of the contained motion picture."

Another comment seeks an exemption for all "audiovisual works used for educational purposes by kindergarten through twelfth grade educators". This exemption would not be limited to clips or portions. Nor would it be limited to the purpose of criticism or commentary.

Another comment states that circumvention should be allowed "for any and all personal use, including back-ups, copying, format conversion, and transfer".

Another comment states that circumvention should be allowed "for the purpose of making backups" and "for the purpose of personally reading (or listening or viewing) legally acquired material in a format or on a device of the user’s choice". (Parentheses in original.)

Another comment states that circumvention should be allowed "for the purpose of format shifting and backing up their files".

Another comment states that circumvention should be allowed "in order to exercise fair use" and for format and device shifting.

Another comment states that circumvention should be allowed, in the case of a discontinued e-book format, "in order to preserve the doctrine of first sale and ensure that legal purchasers of protected works will have continued access to those works".

The House will meet at 2:00 PM in pro forma session. See, Rep. Cantor's calendar.

8:00 - 10:00 AM. Broadband Census News LLC will host a panel discussion titled "The Wired Home and Wireless Policy". The speakers will be Rick Kaplan (Chief of the FCC's Wireless Telecommunications Bureau), Fred Campbell (head of the Wireless Communications Association International), Walter McCormick (head of the US Telecom), Grant Seiffert (head of the Telecommunications Industry Association), and Drew Clark. Breakfast will be served. This event is open to the public. The price to attend is $47.12. See, notice and registration page. This event is also sponsored by Comcast, Google, ICF Intl., Intel, NCTA TIA, and US Telecom. Location: Clyde's of Gallery Place, 707 7th St., NW.

9:00 AM - 4:30 PM. Day one of the Net Caucus's annual State of the Net Conference. See, conference web site and schedule. Location: Hyatt Regency, Capitol Hill, 400 New Jersey Ave., NW.

9:00 AM - 5:45 PM. Day one of a three day event hosted by the International Intellectual Property Institute (IIPI) and U.S. Patent and Trademark Office (USPTO) titled "Seminar on Specialized Intellectual Property Rights Courts". The speakers will include David Kappos (head of the USPTO), Shinjiro Ono (former Deputy Commissioner of the Japan Patent Office), and Jorge Amigo (former Director of the Mexican Institute of Industrial Property). The deadline to register is January 13. Free. See, notice. Location: USPTO, 600 Dulany St., Alexandria, VA.

10:00 - 11:00 AM. The Free Press (FP), Public Knowledge (PK), and others will host a teleconferenced news conference regarding HR 3261 [LOC | WW], the "Stop Online Piracy Act", or "SOPA", and S 968 [LOC | WW], the "Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act of 2011" or "PROTECT IP Act". The number is +1 (213) 493-0606; the access code is 236-450-089.

12:00 NOON - 2:00 PM. American Bar Association's (ABA) Section of International Law will host an on site and teleconferenced panel discussion titled "Trade Remedies Approaches of the US and EU Toward China: Similarities and Differences". The speakers will be Joseph Dorn (King & Spaulding), Gary Horlick (Gary Horlick), Edwin Vermulst (VVGB Advocaten), Matthew Yeo (Steptoe & Johnson), and Kristin Mowry (Mowry & Grimson). The price ranges from $15 to $20. Lunch will be provided for on site attendees. See, notice. Location: Sidley Austin, 1501 K St., NW.

12:15 - 1:30 PM. The Federal Communications Bar Association's (FCBA) Young Lawyers Committee will host a brown bag lunch titled "Industry Roundtable -- The Roles and Responsibilities of the Young Lawyer". For more information, contact Mark Brennan at Mark dot Brennan at hoganlovells dot com or Brendan Carr at BCarr at wileyrein dot com. Location: Wilmer Hale, Multi-Purpose Room on the ground level, 1875 Pennsylvania Ave., NW.

The House will meet at 10:00 AM for morning hour, and at 12:00 NOON for legislative business. It will consider a resolution of disapproval of the President's exercise of authority to increase the debt limit. See, Rep. Cantor's calendar.

9:00 - 11:00 AM. The Information Technology and Innovation Foundation (ITIF) will host an panel discussion titled "Bits and Bricks: Transforming the Construction Industry Through Innovation". The speakers will be Robert Atkinson (ITIF), Phillip Bernstein (Autodesk), Dorothy Robyn (Department of Defense), Robert Peck (GSA) and Shyam Sunder (NIST). See, notice. Location: National Press Club, Holeman Lounge, 529 14th St., NW.

9:00 - 11:30 AM. Day two of the Net Caucus's annual State of the Net Conference. See, conference web site and schedule. Location: Hyatt Regency, Capitol Hill, 400 New Jersey Ave., NW.

9:00 AM - 5:30 PM. Day one of a three day event hosted by the International Intellectual Property Institute (IIPI) and U.S. Patent and Trademark Office (USPTO) titled "Seminar on Specialized Intellectual Property Rights Courts". The speakers will include David Kappos (head of the USPTO), Shinjiro Ono (former Deputy Commissioner of the Japan Patent Office), and Jorge Amigo (former Director of the Mexican Institute of Industrial Property). The deadline to register is January 13. Free. See, notice. Location: USPTO, 600 Dulany St., Alexandria, VA.

10:00 AM - 12:00 NOON. The House Oversight and Government Reform Committee (HOGRC) will hold a titled "Government Mandated DNS Blocking and Search Takedowns -- Will It End the Internet as We Know It?" See, notice. The HOGRC does not have jurisdiction over HR 3261 [LOC | WW], the "Stop Online Piracy Act" or "SOPA". The House Judiciary Committee (HJC) does. However, this hearing is directed at provisions in the SOPA. The HOGRC will webcast this hearing. Location: Room 2154, Rayburn Building, with overflow seating in Room 2203.

12:00 NOON - 1:30 PM. American Bar Association's (ABA) Section of Antitrust Law will host a teleconferenced panel discussion titled "Monopolization Updates from China and Canada". The speakers will be Neil Campbell (McMillan) and Kate Wallace (Jones Day). Free. See, notice.

Deadline to submit comments to the National Science Foundation's (NSF) National Science Board (NSB) regarding the Committee on Strategy and Budget's Task Force's report on Data Policies, Digital Research Data Sharing and Management. See, notice in the Federal Register, Vol. 77, No. 8, Thursday, January 12, 2012, at Page 1956.

The House will not meet. Day one of a three day event titled "House Republican Issues Conference". See, Rep. Cantor's calendar.

The Senate will not meet.

9:00 AM - 3:30 PM. Day one of a three day event hosted by the International Intellectual Property Institute (IIPI) and U.S. Patent and Trademark Office (USPTO) titled "Seminar on Specialized Intellectual Property Rights Courts". The speakers will include David Kappos (head of the USPTO), Shinjiro Ono (former Deputy Commissioner of the Japan Patent Office), and Jorge Amigo (former Director of the Mexican Institute of Industrial Property). The deadline to register is January 13. Free. See, notice. Location: USPTO, 600 Dulany St., Alexandria, VA.

11:45 AM - 1:45 PM. The Tech Freedom (TF), Competitive Enterprise Institute (CEI) and Cato Institute will host a panel discussion titled "Unintended Consequences of Rogue Website Crackdown". The program will address three bills under consideration by the House and Senate: (1) HR 3261 [LOC | WW], the "Stop Online Piracy Act" or "SOPA", (2) draft [18 pages in PDF] of the "Online Protection & Enforcement of Digital Trade Act", or "OPEN Act", and (3) S 968 [LOC | WW], the "Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act of 2011" or "PROTECT IP Act". The speakers will be Berin Szoka (TF), Larry Downes (TF), Allan Friedman (Brookings Institution), James Gattuso (Heritage Foundation), Dan Kaminsky, Julian Sanchez (Cato Institute). Lunch will be served. Free and open to the public. The deadline to register is 12:00 NOON on January 18. See, notice and registration page. Location: Reserve Officers Association of the US, One Constitution Ave., NE.

12:30 - 1:45 PM. The Federal Communications Commission's (FCC) Wireless Telecommunications Bureau's (WB) Division Chiefs will hold a meeting. The speakers will include Mary Bucher (Technologies, Systems and Innovation Division), Nese Guendelsberger ( Spectrum and Competition Policy Division), Roger Noel (Mobility Division), Blaise Scinto (Broadband Division), and Margaret Weiner (Auctions and Spectrum Access Division). The price to attend is $17. Registrations and cancellations are due by 12:00 NOON on January 16. See, notice. The Federal Communications Bar Association (FCBA) states that this is an FCBA event. Location: Wiley Rein, 1776 K St., NW.

6:00 - 8:15 PM. The Federal Communications Bar Association's (FCBA) Wireline Committee will host an event titled "Understanding the Connect America Fund Order". CLE credits. Prices vary. See, notice. Location: Dow Lohnes, 1200 New Hampshire Ave., NW.

The House will not meet. Day two of a three day event titled "House Republican Issues Conference".  See, Rep. Cantor's calendar.

The Senate will meet at 2:00 PM in pro forma session only.

Supreme Court conference day. See, calendar. Closed.

1:00 - 2:30 PM. American Bar Association's (ABA) Section on Intellectual Property Law will host a webcast panel discussion titled "Prosecution Strategies: Tackling USPTO Obviousness Rejections". The speakers will be Janet Hendrickson (Senniger Powers), Gregory Hillyer (Feldman Gale), Michelle O'Brien (O'Brien Jones), and Zachary Stern (Oblon, Spivak). The price ranges from $70 to $150. CLE credits. See, notice.

Day three of a three day event titled "House Republican Issues Conference".

The House will meet. Votes will be postponed until 6:30 PM.

The Senate will meet at 2:00 PM for morning business. The Senate may also consider S 968 [LOC | WW], the "Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act of 2011" or "PROTECT IP Act".

6:00 - 9:15 PM. The DC Bar Association will host a program titled "Introduction to Export Controls". The speakers will be Carol Kalinoski (solo practitioner) and Thomas Scott (Ladner & Associates). The price to attend this and the companion program on February 8 ranges from $169 to $229. CLE credits. See, notice. For more information, call 202-626-3488. The DC Bar has a history of barring reporters from its events. Location: DC Bar Conference Center, 1101 K St., NW.

The House will meet.

The Senate will meet.

State of the Union speech.

9:30 - 10:30 AM. The Information Technology and Innovation Foundation (ITIF) will host a discussion of the book [Amazon] titled "Restoring the Innovation Edge". The speakers will include the author, Jerald Hage (University of Maryland). See, notice. Location: ITIF/ITIC, Suite 610A, 1101 K Street, NW.

2:30 PM. The Senate Intelligence Committee (SIC) will hold a closed meeting. See, notice. Location: Room 219, Hart Building.

1/9. The Federal Communications Commission (FCC) filed its brief [136 pages in PDF] with the U.S. Court of Appeals (DCCir) in Cellco Partnership dba Verizon Wireless v. FCC, a petition for review of the FCC's data roaming order.

The FCC's brief makes an effective policy argument for the imposition of data roaming rules, particularly on large services providers AT&T and Verizon. However, the brief grasps at meritless arguments that the rules do not impose Title II common carrier regulation on non-Title II services. The FCC brief thus demands lenient Chevron deference.

The FCC adopted and released its Second Report and Order [79 pages in PDF] on April 7, 2011. It is FCC 11-52 in WT Docket No. 05-265. It imposes common carrier like regulations for data roaming, in the absence of statutory authority for doing so. The Commission divided 3-2, with Democrats Julius Genachowski, Michael Copps and Mignon Clyburn supporting the item, and Republicans Robert McDowell and Meredith Baker dissenting.

The FCC has long imposed voice roaming rules. This order provides that any "Commercial Mobile Data Service" is required to offer roaming arrangements on "commercially reasonable terms and conditions". See, story titled "FCC Adopts Data Roaming Rules" in TLJ Daily E-Mail Alert No. 2,219, April 7, 2011.

The FCC's brief states that data roaming "allows consumers to obtain data service over their cellular phones and other mobile devices when they travel outside their own wireless provider’s network coverage area, by relying on another wireless provider’s network".

It continues. "Propelled by the increasing popularity of smartphones (like Apple's iPhone) and tablets (like the iPad), consumer demand for mobile Internet access has exploded in recent years. Today, tens of millions of Americans rely on wireless devices to access mobile broadband service for business or personal use. The utility of mobile broadband service, however, is seriously eroded if consumers lose connectivity when they travel (or ``roam´´) outside their own wireless provider's network coverage area." (Parentheses in original.)

The FCC brief asserts that "Data roaming agreements between service providers address this", but that the record in this proceeding shows that "wireless providers had been unable to secure data roaming arrangements ... with AT&T and Verizon".

The FCC's brief argues that its new rules do not impose a common carriage requirement, and that its rules are permissible under Title III.

In the alternative, it argues that Section 706 of the Telecommunications Act of 1996 authorizes the FCC to adopt common carrier regulation for data services. Section 706 is codified at 47 U.S.C. § 1302. This section contains the policy statement that the FCC and state commissions "shall encourage the deployment on a reasonable and timely basis of advanced telecommunications capability".

This case is Cellco Partnership dba Verizon Wireless v. FCC and USA , U.S. Court of Appeals for the District of Columbia, App. Ct. Nos. 11-1135 and 11-1136, petitions for review of a final order of the FCC. The Court of Appeals has not yet scheduled a date for oral argument in this case.

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