10/3. Deutsche Telekom and MetroPCS Communications announced that they have signed a definitive agreement to combine T-Mobile USA and MetroPCS.

The transaction requires approvals from numerous regulatory agencies, including the Department of Justice's (DOJ) Antitrust Division, and the Federal Communications Commission (FCC).

AT&T and T-Mobile USA announced merger plans in March of 2011. See, story titled "AT&T to Acquire T-Mobile USA" in TLJ Daily E-Mail Alert No. 2,205, March 21, 2011.

However, the DOJ blocked the merger. See, story titled "DOJ Files Complaint to Block AT&T Acquisition of T-Mobile USA" in TLJ Daily E-Mail Alert No. 2,298, August 31, 2011. While the FCC obstructed and maligned the proposed transaction, it never issued an order denying approval. The companies abandoned the transaction in December of 2011. See, story titled "AT&T and T-Mobile Abandon Merger Effort" in TLJ Daily E-Mail Alert No. 2,320, December 20, 2011.

T-Mobile USA and MetroPCS disclosed in a release that "The transaction is structured as a recapitalization, in which MetroPCS will declare a 1 for 2 reverse stock split, make a cash payment of $1.5 billion to its shareholders (approximately $4.09 per share prior to the reverse stock split) and acquire all of T-Mobile's capital stock by issuing to Deutsche Telekom 74% of MetroPCS' common stock on a pro forma basis. Deutsche Telekom has also agreed to roll its existing intercompany debt into new $15 billion senior unsecured notes of the combined company, provide the combined company with a $500 million unsecured revolving credit facility and provide a $5.5 billion backstop commitment for certain MetroPCS third-party financing transactions." (Parentheses in original.)

Roger Linquist, Ch/CEO of MetroPCS, stated that "the combined company will provide cutting-edge 4G LTE services and accelerate its roll-out of 4G LTE.  In addition, this combination will allow MetroPCS to expand its no-contract offerings into new major metro areas and enhance our combined spectrum portfolio, which provides the potential to offer 4G LTE over at least a full 20x20 MHz in many metro areas.  Importantly, MetroPCS and T-Mobile have the same network strategies and LTE networks in the same spectrum bands".

The two companies' release states that the combined entity will "have the expanded scale, spectrum and financial resources to aggressively compete with the other national U.S. wireless carriers."

Rep. Anna Eshoo (D-CA), the ranking Democrat on the House Commerce Committee's (HCC) Subcommittee on Communications and Technology, stated in a release that "At a time when two companies continue to dominate the wireless marketplace, the need for a strong national competitor has never been greater. The proposed merger of T-Mobile and MetroPCS has the right ingredients to provide consumers with a viable alternative for wireless voice and data service. I hope the FCC and the Department of Justice will conduct a thorough, but swift review of the transaction's merits."

The Free Press's Matt Wood stated in a release that "Wireless consumers have long suffered in an uncompetitive market. We need stronger competitors to push back against the AT&T-Verizon juggernaut, ones that will force these carriers to compete on price and service quality. But consolidation at the bottom between a regional prepaid carrier and the last-place national carrier is not going to fix all of the problems in our wireless market. The FCC is going to have to formulate bold public policies to bring consumers the relief they need."

John Legere, who is now P/CEO of T-Mobile USA, will become P/CEO of the combined entity. Braxton Carter, who is now CFO and Vice Chairman of MetroPCS, will become the CFO. The combined company will operate T-Mobile and MetroPCS as separate customer units, headed by Jim Alling, who recently joined T-Mobile USA as COO, and Thomas Keys, who is now P/COO of MetroPCS, respectively. 

T-Mobile USA has its headquarters in Bellevue, Washington. The combined company will have its headquarters in Belleview, but retain offices in the Dallas, Texas, area, where MetroPCS is based.

T-Mobile USA and Deutsche Telekom are represented by the law firms of Wachtell Lipton, Cleary Gottlieb, K&L Gates, and Wiley Rein. MetroPCS is represented by the law firms of Gibson Dunn & Crutcher, Paul Hastings and Telecommunications Law Professionals.

9/26. Nine Republican members of the House of Representatives sent a letter to Jonathan Leibowitz, Chairman of the Federal Trade Commission (FTC), condemning the FTC for participating in the World Wide Web Consortium's (W3C) development of a do not track (DNT) standard for web site operators.

The nine wrote "to express serious concern over participation by you and your agency in multiple meetings, some held overseas, with members of the World Wide Web Consortium (W3C), and to request information pursuant to our oversight and budgetary authority. Specifically, we are alarmed that the Federal Trade Commission (FTC) is driving the development of policies and technical Do Not Track (DNT) standards to restrict online advertising without any formal legal process or Congressional authorization, but rather through informal agency threats."

The nine also propounded numerous interrogatories. For example, they asked "By what authority did Congress empower the FTC to participate in, or encourage Internet policy development through, international organizations such as W3C?"

They also asked the FTC to "provide itemized details relating to any federal funds spent by the FTC on W3C activities, including all meetings of FTC staff with anyone connected with W3C."

The W3C's Tracking Protection Working Group (TPWG) is an internet standards body that is working on a standard regarding what DNT means, and what web sites are expected to do, or not expected to do, in response to a user's DNT expression. See, W3C's March 13, 2012 draft document titled "Tracking Preference Expression".

The W3C TPWG can write a standard. However, it cannot compel companies that make browsers to include a DNT feature, or to have that feature turned on by default. Nor can the W3C TPWG compel web site operators to honor a DNT request from a user's browser.

The nine signers of the letter include Rep. Tom Graves (R-GA) and Rep. Marsha Blackburn (R-TN). Rep. Graves is a member of the House Appropriations Committee (HAC), and its Subcommittee on Commerce, Justice, Science and Related Agencies, which is responsible for the FTC's annual appropriation. Rep. Blackburn is a member of the House Commerce Committee (HCC), which oversees the FTC.

However, the list is notable for its lack of other members of the HCC.

The other seven are Rep. Mick Mulvaney (R-SC), Rep. Reid Ribble (R-WI), Rep. Tim Walberg (R-MI), Rep. Tim Huelskamp (R-KS), Rep. Jeff Duncan (SC), Rep. Dennis Ross (R-FL), and Rep. Dan Burton (R-IN).

Microsoft's browser, Internet Explorer, supports DNT. Moreover, Microsoft is moving towards a DNT setting by default. See, story titled "Microsoft's Next Brower Will Have Do Not Track on by Default" in TLJ Daily E-Mail Alert No. 2,389, June 4, 2012. "Microsoft Reaffirms Its Commitment to Do Not Track By Default" in TLJ Daily E-Mail Alert No. 2,426, August 10, 2012.

Firefox and Apple's Safari also support DNT, but users must navigate through a series of menus to turn on the DNT feature. Google Chrome supports DNT only if a user installs a browser extension. See, June 12, 2012, article titled "How to Turn on Do Not Track in Your Browser", by Eva Galperin, published in the Electronic Frontier Foundation (EFF) web site.

10/3. Sen. John Rockefeller (D-WV), Chairman of the Senate Commerce Committee (SCC), sent a letter to Jonathan Leibowitz, Chairman of the Federal Trade Commission (FTC), urging the FTC to continue its participation in the World Wide Web Consortium's (W3C) development of a do not track (DNT) standard for web site operators.

The World Wide Web Consortium's (W3C) Tracking Protection Working Group (TPWG) is an internet standards body that is working on a standard regarding what DNT means, and what web sites are expected to do, or not expected to do, in response to a user's DNT expression. See, W3C's March 13, 2012 draft document titled "Tracking Preference Expression".

Last week nine Republican members of the House of Representatives sent a letter to Leibowitz condemning the FTC for participating in the W3C's deliberations regarding development of a DNT standard. See, related story in this issue titled "Representatives Condemn FTC Participation in W3C Development of DNT Standard".

Sen. Rockefeller (at right) wrote that "I ... urge you to continue your positive and constructive involvement" in the W3C TPWG's deliberations.

He elaborated that "It is entirely appropriate that the FTC is participating in the W3C process to provide technical expertise or otherwise facilitate the promulgation of voluntary standards on DNT".

He reasoned that "an important element of the FTC's mission is to be a public advocate for consumer protection", and that "it is not unusual for government agencies to play prominent roles in the development of voluntary standards"

He argued that "the FTC should continue to actively encourage all relevant stakeholders to develop voluntary standards to honor do-not-track requests"

He also wrote that the Digital Advertising Alliance (DAA) "pledged to honor DNT browser requests. However, the commitment itself is currently riddled with exceptions -- allowing for the collection and user of personal information for ``product development´´ and ``market research´´ -- that could render DNT compliance meaningless. And it is not clear if any or all member companies will honor the commitment at all. Furthermore, the current self-regulatory initiative is an ineffective regime in which third party ad networks honor consumer ``opt out´´ requests by abstaining from serving targeted behavioral advertisements, while continuing to collect personal information."

Sen. Rockefeller concluded that "If the advertising industry cannot be coaxed into living up to its commitment and adopting robust voluntary DNT standards, I believe it will only highlight the need for Congress to act ..."

10/3. The Center for Democracy and Technology (CDT) published a piece on the recent debate over development of a do not track (DNT) standard World Wide Web Consortium's (W3C) Tracking Protection Working Group (TPWG). This piece, written by the CDT's Leslie Harris and Justin Brookman, is titled "The Bizarre, Belated Assault on Do Not Track".

For more on this "assault", see, related story in this issue titled "Representatives Condemn FTC Participation in W3C Development of DNT Standard", and story titled "ITIF Asserts That Do Not Track is Madness" in TLJ Daily E-Mail Alert No. 2,456, October 2, 2012.

The two wrote that "It is possible that this uproar stems entirely from Microsoft's decision in June to aggressively steer its users to turn on Do Not Track during install (initially, it sounded like Microsoft would silently turn on Do Not Track for all users; since, they have decided to list Do Not Track as "on" in the "express settings" you are encouraged to choose as you set up your Windows device)." (Parentheses in original.)

Harris and Brookman continued that "It remains an open question what industry or the W3C will do to respond to Microsoft's implementation. At the end of the day, advertisers might decide to ignore en masse headers from browsers like Microsoft's where they don't like the user interface. Of course, ignored browsers can respond in kind -- either blocking third-party cookies from companies that ignore their headers (indeed, Apple already prevents all third parties from setting cookies in Safari, Do Not Track or not), or even blocking the third parties from rendering ads at all. Sites then could the respond in turn by blocking users who block cookies or ads (as happens sometimes today for users who install Ad Block), thus pushing users to install work-arounds that forge (or exchange) cookie values or out of desperation pirate publishers' content entirely. The result would be turning the online ecosystem into an ever-escalating war between privacy interests and advertisers -- precisely the war that a negotiated Do Not Track setting was designed to avoid." (Parentheses in original.)

They argued that "Rather than rush headlong into a privacy arms race, all stakeholders need to work together to develop a meaningful standard that allows valuable ad serving but stops the boundless collection of online web surfing behavior by a host of unknown companies. At the end of the day, privacy advocates will have to settle for something less than they would like in an ideal world. And advertisers must honor their commitment to comply with users' Do Not Track instructions."

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TLJ received some e-mail non-delivery notices following the sending of yesterday's issue, TLJ Daily E-Mail Alert No. 2,456, October 2, 2012. Some subscribers may not have received it. Hence, it is now published in the TLJ web site. It contains the following items:
 • NTIA's Strickling Criticizes ETNO Proposal for IP Interconnection Regulation
 • FCC Fines NobelTel for Deceptively Marketing Prepaid Calling Cards
 • American Library Association Demands E-Books from Publishers
 • ITIF Asserts That Do Not Track is Madness
 • More News

The House will not meet. It is in recess, except for pro forma sessions, until after the November elections.

The Senate will not meet. It is in recess, except for pro forma sessions, until November 13, 2012.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Ewinwin, Inc. v. Groupon, Inc., App. Ct. No. 2012-1165. This is an appeal from the U.S. District Court (MDFl) in a patent infringement case. Panel C. This is the third case on the Court's agenda. Location: Courtroom 201, National Courts Building, 717 Madison Place, NW.

10:00 AM - 3:00 PM. The Department of Health and Human Services' (DHHS) Office of the National Coordinator for Health
Information Technology's (ONCHIT) HIT Policy Committee will meet. See, notice in the Federal Register, Vol. 77, No. 181, September 18, 2012, at Page 57567. Location: Dupont Circle Hotel, 1500 New Hampshire Ave., NW.

9:30 AM. The Office of the U.S. Trade Representative (OUSTR) will hold a public hearing to assist it in preparing its annual report to the Congress on the People's Republic of China's (PRC) compliance with its World Trade Organization (WTO) obligations. See, notice in the Federal Register, Vol. 77, No. 161, August 20, 2012, at Pages 50206-50207. See also, story titled "OUSTR to Receive Comments and Hold Hearing on PRC Compliance with WTO Obligations" in TLJ Daily E-Mail Alert No. 2,431, August 17, 2012. Location: OUSTR, Room 1, 1724 F St., NW.

11:30 AM. Attorney General Eric Holder, Deputy Attorney General James Cole, and U.S. Attorney for Maryland Rod Rosenstein will announce the award of $2.4 Million in grants to 13 jurisdictions to assist with the enforcement of criminal laws related to intellectual property theft. Location: Towson University, West Village Commons Building, Ballroom A, 424 Emerson Drive, Towson, MD.

12:00 NOON. The World Wide Web Consortium's (W3C) Tracking Protection Working Group will meet by teleconference. The call in number is 1-617-761-6200. The passcode is TRACK (87225).

12:15 - 1:30 PM. The Federal Communications Bar Association's (FCBA) Engineering and Technical Committee will host a brown bag lunch titled "Federal Spectrum Management Recommendations of the July 2012 PCAST Report and Their Possible Impact on FCC-Regulated Spectrum". The speakers will be Preston Marshall (University of Southern California), Larry Irving (Irving Group), and Christopher McCabe (CTIA). Location: Hogan Lovells, 555 13th St., NW.

2:00 PM. The Federal Communications Commission's (FCC) Advisory Committee on Diversity for Communications in the Digital Age will meet. See, notice in the Federal Register, Vol. 77, No. 180, September 17, 2012, at Page 57085. Location: FCC, Commission Meeting Room, TW-C305, 445 12th St., SW.

2:00 - 4:00 PM. The National Science Foundation's (NSF) Networking and Information Technology Research and Development National Coordination Office's Large Scale Networking Coordinating Group's Middleware and Grid Interagency Coordination Team will meet. See, notice in the Federal Register, Vol. 77, No. 183, September 20, 2012, at Pages 58416. Location: NSF, 4201 Wilson Boulevard, Arlington, Virginia.

5:00 PM. Extended deadline to submit reply comments to the Copyright Office (CO) in response to its notice in the Federal Register (FR) that announces, describes, recites and requests comments on its proposed rules regarding the verification of Statements of Account and royalty payments that are deposited with the CO by cable operators and satellite carriers. See, original notice in the FR, Vol. 77, No. 115, June 14, 2012, at Pages 35643-35652, and extension notice in the FR, Vol. 77, No. 176, September 11, 2012, at Page 55783.

10:00 AM - 1:00 PM. The Department of Commerce's (DOC) National Telecommunications and Information Administration's (NTIA) Commerce Spectrum Management Advisory Committee (CSMAC) will meet. See, notice in the Federal Register, Vol. 77, No. 158, August 15, 2012, at Pages 48968-48969. See also, story titled "Commerce Spectrum Management Advisory Committee to Meet" in TLJ Daily E-Mail Alert No. 2,431, August 17, 2012. Location: DOC, Room 4830, 1401 Constitution Ave., NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Comint Systems Corporation and EyeIT.com, Inc. v. USA , App. Ct. No. 2012-5039. This is an appeal from the U.S. Court of Federal Claims. Panel D. This is the second of four cases on the agenda. Location: Courtroom 201, National Courts Building, 717 Madison Place, NW.

5:00 PM. Extended deadline to submit reply comments to the Copyright Office (CO) in response to its notice in the Federal Register (FR) in which it proposes rules changes regarding the definition of a claimant for purposes of copyright registration. The CO proposes to eliminate the footnote to the definition of a claimant codified at 37 CFR § 202.3(a)(3)(ii), which provides that a claimant includes individuals or entities that have obtained the contractual right to claim legal title to copyright in an application for copyright registration. See, original notice, FR, Vol. 77, No. 96, Thursday, May 17, 2012, at Pages 29257-29259, and extension notice, FR, Vol. 77, No. 171, September 4, 2012, at Page 53829. See also, story titled "Copyright Office Proposes to Change Definition of Claimant" in TLJ Daily E-Mail Alert No. 2,386, May 30, 2012.

The Senate will meet at 1:00 PM in pro forma session.

The Department of Labor's (DOL) Bureau of Labor Statistics (BLS) is scheduled to release its September 2012 unemployment data.

8:30 - 10:00 AM. The New America Foundation (NAF) will host a book presentation. Robert Atkinson (head of the Information Technology and Innovation Foundation) will discuss his just published book [Amazon] titled "Innovation Economics: The Race for Global Advantage". See, ITIF notice. Location: NAF, Suite 400, 1899 L St., NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Ritz Camera & Image v. SanDisk, App. Ct. No. 2012-1183. This is an appeal from the U.S. District Court (NDCal), D.C. No. 10-CV-2787. At issue is whether direct purchasers have standing under the antitrust laws to recover damages for overcharges resulting from a monopoly obtained or maintained through the enforcement of patents procured by fraud. See, District Court opinion at 772 F. Supp. 2d 1100 (2011). See also, FTC/DOJ amicus curiae brief. And see, story titled "FTC/DOJ File Amicus Brief on Antitrust Standing of Direct Purchasers Who Allege Fraud Upon USPTO" in TLJ Daily E-Mail Alert No. 2,386, May 30, 2012. Panel E. This is the fourth case on the agenda. Location: Courtroom 201, National Courts Building, 717 Madison Place, NW.

12:00 NOON - 1:30 PM. The DC Bar Association will host a class titled "iPad for Lawyers". The speaker will be Tasha Coleman. Free. No CLE credits. See, notice. For more information, contact Daniel Mills at 202-626-1312. The DC Bar has a history of barring reporters from its events. Location: DC Bar Conference Center, 1101 K St., NW.

Deadline to submit comments to the U.S. Patent and Trademark Office (USPTO) in response to its notice in Federal Register (FR) requesting comments regarding its proposed changes to its rules of practice in patent cases to implement the changes to the conditions of patentability, to implement the first inventor to file system provisions of the Leahy Smith America Invents Act, and to eliminate the provisions pertaining to statutory invention registrations. See, FR, Vol. 77, No. 144, July 26, 2012, at Pages 43742-43759. See also, story titled "USPTO Announces First Inventor to File NPRM and Roundtable" in TLJ Daily E-Mail Alert No. 2,430, August 16, 2012.

Deadline to submit comments to the U.S. Patent and Trademark Office (USPTO) in response to its notice in Federal Register (FR) requesting comments regarding its proposed changes to its examination guidelines to implement the first inventor to file system provisions of the Leahy Smith America Invents Act. See, FR, Vol. 77, No. 144, July 26, 2012, at Pages 43759-43773.

Deadline to submit comments to the National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) regarding its draft SP 800-40 Rev. 3 [26 pages in PDF] titled "Guide to Enterprise Patch Management Technologies".

Day one of a four day event hosted by George Mason University School of Law and the American Bar Association's (ABA) Section of Antitrust titled "Antitrust Law and Economics Institute for Judges". See, notice and agenda. Location: GMU law school, 3301 Fairfax Drive, Arlington, VA.

Columbus Day. This is a federal holiday. See, OPM list of 2012 federal holidays.

Day two of a four day event hosted by George Mason University School of Law and the American Bar Association's (ABA) Section of Antitrust titled "Antitrust Law and Economics Institute for Judges". See, notice and agenda. Location: GMU law school, 3301 Fairfax Drive, Arlington, VA.

Deadline for the Federal Communications Commission (FCC) to submit its biennial report to Congress on the "Twenty-First Century Communications and Video Accessibility Act of 2010", which is also known as the CVAA.

The Senate will meet at 11:00 AM in pro forma session.

Day three of a four day event hosted by George Mason University School of Law and the American Bar Association's (ABA) Section of Antitrust titled "Antitrust Law and Economics Institute for Judges". See, notice and agenda. Location: GMU law school, 3301 Fairfax Drive, Arlington, VA.

1:00 - 2:00 PM. The American Bar Association (ABA) will host a webcast and teleconferenced panel discussion titled "Privacy and Information Security Update". The speakers will be Alysa Hutnik, Christopher Loeffler, Sharon Schiavetti and Kristin McPartland (all of Kelley Drye). Free. No CLE credits. See, notice.

2:00 - 3:30 PM. The Department of Justice's (DOJ) Antitrust Division's (AD) Economic Analysis Group (EAG) will host a presentation titled "vGUPPI: Scoring Unilateral Pricing Incentives in Vertical Mergers". The speaker will be Steve Salop (Georgetown University Law Center). See, paper with the same title by Salop and Serge Moresi (Charles River Associates). For more information, contact Gloria Sheu at gloria dot sheu at usdoj dot gov or 202-532-4932 or Nathan Miller at nathan dot miller at usdoj dot gov or 202-307-3773. Location: Liberty Square Building, EAG conference room, LSB 9429, 450 5th St., NW.

Day four of a four day event hosted by George Mason University School of Law and the American Bar Association's (ABA) Section of Antitrust titled "Antitrust Law and Economics Institute for Judges". See, notice and agenda. Location: GMU law school, 3301 Fairfax Drive, Arlington, VA.

9:30 AM - 4:00 PM. The Department of Commerce's (DOC) National Telecommunications and Information Administration (NTIA) will hold one in a series of meetings regarding consumer data privacy in the context of mobile applications. See, notice in the Federal Register, Vol. 77, No. 149, Thursday, August 2, 2012, Pages 46067-46068. Location: Auditorium, DOC, Hoover Building, 14th Street and Constitution Ave., NW.

12:00 NOON. The World Wide Web Consortium's (W3C) Tracking Protection Working Group will meet by teleconference. The call in number is 1-617-761-6200. The passcode is TRACK (87225).

12:15 - 1:30  PM. The Federal Communications Bar Association's (FCBA) Transactional Practice Committee will host a brown bag lunch titled "Issues in the Negotiating and Drafting of Media Transaction Contracts". The speakers will be Howard Weiss (Fletcher Heald & Hildreth), Michael Basile (Dow Lohnes), Steve Lovelady (Fletcher Heald & Hildreth). Location: Drinker Biddle & Reath, Conference Room 11-C., 1500 K St., NW.

6:00 - 8:00 PM. The Federal Communications Bar Association's (FCBA) Legislative and Young Lawyers Committee will host an event titled "Happy Hour". For more information, contact Justin Faulb at JFaulb at eckertseamans dot com or Marc Paul at Marc dot Paul at fcclaw dot com. Location: Johnny's Half Shell, 400 North Capitol St., NW.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Notice of Inquiry [29 pages in PDF] that requests information to assist it in preparing its next video competition report. This NOI is FCC 12-80 in MB Docket No. 12-203. See, story titled "FCC Releases Video Competition Report" in TLJ Daily E-Mail Alert No. 2,411, July 25, 2012. See also, notice in the Federal Register, Vol. 77, No. 153, August 8, 2012, at Pages 47383-47392.

Deadline to submit comments to the National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) regarding its draft SP 800-152 [26 pages in PDF] titled "A Profile for U. S. Federal Cryptographic Key Management Systems (CKMS)".