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Tuesday, November 20, 2012, Alert No. 2,475.
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DOJ and FTC to Hold Workshop on Patent Assertion Entities

11/19. The Department of Justice's (DOJ) Antitrust Division and the Federal Trade Commission (FTC) announced that they will hold a day long workshop on December 10, 2012, titled "Patent Assertion Entity Activities". See, notice and agenda.

The two regulatory agencies also request comments. The deadline to submit comments is January 10, 2013.

The DOJ and FTC stated that this event "will provide a forum for industry participants, academics, economists, lawyers, and other interested parties to discuss the evolution of economic and legal analyses of PAE behavior, including patent acquisitions and licensing activity." The list of speakers is already fixed.

In addition, "The workshop will consist of a series of panels examining, among other topics, PAE behavior, the economics of IP licensing, industry experiences with PAE behavior, economic and legal theories and empirical work concerning PAE activity, and the potential efficiencies and harms to innovation and competition that this activity may generate."

This event will run from 9:00 AM to 5:30 PM in the FTC's, Satellite Building and Conference Center at 601 New Jersey Ave., NW. This event is free and open to the public.

Rep. Eshoo and Rep. Lofgren Complain to FTC about its Google Antitrust Investigation

11/19. Rep. Anna Eshoo (D-CA) and Rep. Zoe Lofgren (D-CA), who both represent Silicon Valley districts, sent a short letter to the five Commissions of the Federal Trade Commission (FTC) regarding its antitrust investigation involving Google.

Their complaint has two elements. First, they object to leaks from the FTC regarding the status of the investigation. Second, they complain that the FTC may be on the verge of bringing an action against Google under Section 5 of the FTC Act, rather than under an antitrust statute.

They wrote that leaks from the FTC "suggest that the FTC is preparing to use Section 5 of the FTC Act to avoid proving some of the elements of a claim required under Section 2 of the Act. Such a massive expansion of FTC jurisdiction would be unwarranted, unwise, and likely have negative implications for our nation's economy."

They added that "Expanding the FTC's Section 5 powers to include antitrust matters could lead to overbroad authority that amplifies uncertainty and stifles growth. These effects may be most acutely felt among online services, a crucial engine of job creation, where technological advancement and small business innovation are rapid. If the FTC intends to litigate under this interpretation of Section 5, we strongly urge the FTC to reconsider."

Section 5 of the FTC Act, which is codified at 15 U.S.C. 45, as implemented by the FTC for decades, is essentially an anti-fraud provision. It provides, in relevant part, that "Unfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce, are hereby declared unlawful."

Section 2 of the FTC Act pertains to Commissions' salaries, staffs and expenses. It is codified at 15 U.S.C. 42. The letter's reference to "Section 2 of the Act" therefore must refer rather to Section 2 of the Sherman Act. It is codified at 15 U.S.C. 2. It provides, in part, that "Every person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States, or with foreign nations, shall be deemed guilty of a felony ..."

If the FTC were to proceed against Google under Section 5 of the FTC Act, it would not be the first time in recent years. In 2010 the FTC relied upon Section 5 of the FTC Act in its administrative action against Intel in 2010. However, that case involved a simultaneous consent agreement. Google may wish to contest and litigate any FTC antitrust action to the fullest.

See, story titled "FTC and Intel Settle Antitrust Claims" and related stories in TLJ Daily E-Mail Alert No. 2,018, August 4, 2010.

The FTC has statutory authority to enforce antitrust laws under the Sherman Act and Clayton Act. There are well developed bodies of judicial case law that construe and give meaning to their various sections. In contrast, Section 5 of the FTC Act has hardly been invoked as an antitrust statute for decades.

Hence, there is no body of case law that gives meaning to Section 5 as an antitrust statute. But, this is what makes it so attractive to aggressive regulators. Invoking Section 5 may enable the FTC to regulate conduct that is not unlawful under the antitrust statutes, as construed by the courts.

Of course, the FTC likes to think of itself as a law enforcement agency, not a regulator. But, the very act of asserting Section 5 as an antitrust statute is an effort to get around enforcing long established rules, and instead impose a new and ad hoc mandate, which is the nature of regulation.

Since the invocation of Section 5 would mean relying upon a four words, without any body of case law, there is little to constrain the FTC in determining what constitutes a violation of Section 5. And, there is nothing to put Google or other companies on notice in advance as to what might constitute a violation of Section 5.

House Commerce Committee Democrats Seeks Hearing on AT&T Modernization Plans

11/19. Rep. Henry Waxman (D-CA), Rep. Anna Eshoo (D-CA) and other Democrats on the House Commerce Committee (HCC) sent a letter [3 pages in PDF] to Rep. Fred Upton (R-MI) and Rep. Greg Walden (R-OR) requesting a hearing on AT&T plans to modernize its facilities, including by replacing old technology cooper wire.

These Democrats wrote that the recent Hurricane Sandy may have had less impact upon "corded telephones running on copper-line networks" than on those "relying on wireless services or fiber-optic cables".

Therefore, they want a hearing "to investigate the reliability of the communications networks, to identify and highlight best practices and, where necessary, to address potential vulnerabilities in our communications infrastructure".

AT&T announced in a release on November 7, 2012 its "plans to invest $14 billion over the next three years to significantly expand and enhance its wireless and wireline IP broadband networks to support growing customer demand for high-speed Internet access and new mobile, app and cloud services." See, story titled "AT&T Announces Additional Investment in Its Wireline and Wireless Broadband Networks" in TLJ Daily E-Mail Alert No. 2,470, November 6, 2012.

Rep. Upton, the Chairman of the HCC, stated in a release on November 8 that "AT&T should be commended for increasing its already large commitment to broadband expansion, especially in this fiscal environment ... Private sector investment like this must be encouraged. That's why the committee plans to examine in the coming months whether we need to modernize our communications policies to meet the challenges and promises of the Internet era."

"Private investment in expanding broadband networks is essential to creating jobs and growing our economy by expanding broadband deployment, especially in rural areas," said Rep. Walden, Chairman of the HCC's Subcommittee on Communications and Technology. "As the committee looks to modernize our communications policies in the next Congress, such private investment is to be commended and encouraged."

Public Knowledge Seeks Continuation of Old Regulatory Frameworks

11/13. The Public Knowledge (PK) published a piece titled "Shutting Down The Phone System Gets Real: The Implications of AT&T Upgrading To An All IP Network". The author is the PK's Harold Feld.

The gist of his concerns are that by shifting from copper to internet protocol (IP) facilities AT&T will also move services out from under Title II regulatory regimes and state price controls, that services will be priced higher to consumers, and that usage rates may decline. He also argues that service may not be as resilient during disasters.

"In other words, while the new network will definitely be a better network, offering a more valuable bundle of services, it may not be either available or affordable to all Americans in the way existing phone service has been for decades."

He wrote that "This network upgrade raises critical questions that go to the very basis of the FCC's authority over core communications in this country and the 100-year old social contract that made voice service in the United States universally available, affordable, and reliable".

He urged the Federal Communications Commission (FCC) to address a wide range of issues, including special access, unbundled network elements, privacy, regulation of billing practices, and the universal service tax and subsidy regime.

He also urged the FCC to "decide the question of whether IP networks must interconnect with one another".

He argued that regulators must "figure out how to take the values of the 100-year old social contract in telecom that has served us so well as a nation and decide how to express those values in concrete terms for the next generation of networks".

The PK also wrote in a message soliciting signatures and comments to an online petition that "this network upgrade also raises critical questions that go to the very heart of the 100-year-old social contract that made voice service in America universally available, affordable, and reliable".

Perhaps it should not go unnoticed the the PK is making frequent use to the concept of "social contract". This is a metaphor based upon a metaphor of one school of political philosophy. See for example, the 1762 book [Amazon] titled "On the Social Contract", translated from the French, "Du Contrat Social", by Jean-Jacques Rousseau.

The social contract of Rousseau and Locke, and the college professors that adore them, theorizes the source of governmental authority. However, neither Rousseau nor Locke wrote that there is any obligation arising out of the social contract that is imposed upon the providers of IP based services.

People and Appointments

11/19. Intel announced in a release that its P/CEO, Paul Otellini, "has decided to retire as an officer and director at the company's annual stockholders' meeting in May, starting an orderly leadership transition over the next six months".

More News

11/15. Time Warner Cable (TWC) released a paper [56 pages in PDF] titled "Between Markets and Mandates: Approaches to Promoting Broadband Access for Persons with Disabilities". The author is Krishna Jayakar (Penn State University).

11/15. Time Warner Cable (TWC) released a paper [40 pages in PDF] titled "Market Structure and Media Diversity". The authors are Scott Savage, Donald Waldman and Scott Hiller (all of the University of Colorado at Boulder). This is a paper based upon statistical analysis that examines how market structure, and Federal Communications Commission (FCC) regulation of media ownership, affects the availability of local news and information. This paper finds that "the amount of diversity and localism declines following a decrease in the number of independent TV stations".

11/10. Apple announced in a release that HTC and Apple "have reached a global settlement that includes the dismissal of all current lawsuits and a ten-year license agreement. The license extends to current and future patents held by both parties. The terms of the settlement are confidential."

In This Issue
This issue contains the following items:
  DOJ and FTC to Hold Workshop on Patent Assertion Entities
  Rep. Eshoo and Rep. Lofgren Complain to FTC about its Google Antitrust Investigation
  House Commerce Committee Democrats Seeks Hearing on AT&T Modernization Plans
  Public Knowledge Seeks Continuation of Old Regulatory Frameworks
  People and Appointments
  More News
Washington Tech Calendar
New items are highlighted in red.
Tuesday, November 20

The House will not meet.

The Senate will not meet.

8:00 - 10:00 AM. Broadband Census News LLC will host a panel discussion titled "International Telecommunications Union Meeting and the Global Open Internet". 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., NCTA TIA, and US Telecom. Location: Clyde's of Gallery Place, 707 7th St., NW.

10:00 - 11:00 AM. David Kappos, head of the U.S. Patent and Trademark Office (USPTO), will give a speech, and answer questions, on software patents. This is an on site and webcast event. See, notice. Location: Center for American Progress (CAP), 10th floor, 1333 H St., NW.

TIME? The National Science Foundation's (NSF) Networking and Information Technology Research and Development National Coordination Office's Large Scale Networking Coordinating Group's Joint Engineering Team will meet. See, notice in the Federal Register, Vol. 77, No. 183, September 20, 2012, at Pages 58415-58416. Location: NSF, 4201 Wilson Boulevard, Arlington, VA.

Wednesday, November 21

The House will not meet.

The Senate will not meet.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Wireless Telecommunications Bureau's (WTB) and Office of Engineering and Technology's (OET) Public Notice (PN) [8 pages in PDF] regarding refreshing the record in its wireless microphones proceedings. See, January 2010 R&O and FNPRM [103 pages in PDF] (FCC 10-16). The FCC released this PN on October 5, 2012. It is DA 12-1570 in WT Docket Nos. 08-166 and 08-167 and ET Docket No. 10-24. See also, notice in the Federal Register, Vol. 77, No. 204, October 22, 2012, at Pages 64446-64450. See also, 2008 NPRM and Order (FCC 08-188) and story titled "FCC Releases NPRM on Wireless Microphones Operating in 700 MHz Band" in TLJ Daily E-Mail Alert No. 1,817, August 21, 2008. See also, story titled "FCC Seeks More Comments on Wireless Microphones" in TLJ Daily E-Mail Alert No. 2,466, October 23, 2012.

Thursday, November 22

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

Friday, November 23

The House will not meet.

The Senate will not meet.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) [50 pages in PDF] regarding spectrum aggregation limits and analyzing spectrum holdings. The FCC adopted and released this item on September 28, 2012. It is FCC 12-119 in WT Docket No. 12-269. See, notice in the Federal Register Vol. 77, No. 195, October 9, 2012, at Pages 61330-61350. See also, TLJ story titled "FCC Adopts Spectrum Aggregation NPRM" in TLJ Daily E-Mail Alert No. 2,455, October 1, 2012.

Monday, November 26

The House will not meet.

The Senate will meet at 2:00 PM.

12:00 NOON - 2:00 PM. The American Bar Association (ABA) will host a panel discussion titled "U.S. Trade Relations with Russia: Views from Capitol Hill". The speakers will be Amber Cottle (Senate Finance Committee majority staff), Everett Eissenstat (Senate Finance Committee minority staff), Angela Ellard (House Ways and Means Committee majority staff), Jason Kearns (House Ways and Means Committee minority staff), Geoffrey Goodale (Cooley), and David Ross (Wilmer Hale). Prices vary. No CLE credits. See, notice. Location: ABA, 9th Floor, 740 15th St., NW.

EXTENDED FROM OCTOBER 25. Extended deadline to submit reply comments to the Copyright Office (CO) regarding proposed changes to CO regulations for reporting Monthly and Annual Statements of Account for the making and distribution of phonorecords under the compulsory license. See, original notice in the Federal Register (FR), Vol. 77, No. 145, Friday, July 27, 2012, at Pages 44179-44197, and extension notice in the FR, Vol. 77, No. 176, September 11, 2012, at Pages 55783-55784.

Tuesday, November 27

The House will meet at 2:00 PM.

Wednesday, November 28

12:00 NOON to 5:30 PM. Day one of a two day meeting of the National Science Foundation's (NSF) Advisory Committee for Computer and Information Science and Engineering. See, notice in the Federal Register, Vol. 77, No. 216, November 7, 2012, at Page 66873. Location: NSF, 4201 Wilson Boulevard, Suite 1235, Arlington, VA.

Thursday, November 29

8:30 AM - 2:30 PM. Day two of a two day meeting of the National Science Foundation's (NSF) Advisory Committee for Computer and Information Science and Engineering. See, notice in the Federal Register, Vol. 77, No. 216, November 7, 2012, at Page 66873. Location: NSF, 4201 Wilson Boulevard, Suite 1235, Arlington, VA.

10:00 AM. The House Commerce Committee's (HCC) Subcommittee on Communications and Technology will hold a hearing titled "The Role of Receivers in a Spectrum Scarce World". See, notice. Location: Room 2322, Rayburn Building.

10:00 AM. The Senate Judiciary Committee (SJC) will hold an executive business meeting. The agenda includes consideration of HR 2471 [LOC | WW], an untitled bill to amend the "Video Privacy Protection Act" or VPPA. The House passed this bill on December 6, 2011. See, story titled "Senate Judiciary Committee to Take Up Tech Bills and Baer Nomination" in TLJ Daily E-Mail Alert No. 2,445, September 11, 2012. The agenda also includes consideration of the nominations of Katherine Failla (USDC/SDNY), Troy Nunley (USDC/EDCal), Sheri Chappell (USDC/MDFl), Pamela Ki Mai Chen (USDC/EDNY), and Mark Barnett (U.S. Court of International Trade). See, notice. Location: Room 226, Dirksen Building.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Public Notice (PN) [MS Word] regarding access technology and enhanced database operations for video relay service (VRS). The FCC released this PN on October 15, 2012. It is DA 12-1644 in CG Docket Nos. 03-123 and 10-51. See also, notice in the Federal Register, Vol. 77, No. 209, October 29, 2012, at Pages 65526-65530.

Friday, November 30

TIME? The Department of Commerce's (DOC) National Telecommunications and Information Administration (NTIA) will hold another 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. See also, NTIA web page titled "Privacy Multistakeholder Process: Mobile Application Transparency". Location?

10:30 AM. The Federal Communications Commission (FCC) will hold an event titled "open meeting". The only item on the agenda is adoption of a Fifth Order on Reconsideration and Sixth Report and Order regarding approval of pending FM translator radio applications and implementation of the Local Community Radio Act (LCRA). Location: FCC, Commission Meeting Room, Room TW-C305, 445 12th St., NW.

Deadline to submit comments to the National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) regarding its draft SP 800-88 Rev. 1 [57 pages in PDF] titled "Guidelines to Media Sanitization".

Extended deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Further Notice of Proposed Rulemaking (NPRM) [59 pages in PDF] regarding the 4940-4990 MHz (4.9 GHz) public safety band. The FCC adopted and released this FNPRM on June 13, 2012. It is FCC 12-61 in WP Docket No. 07-100, PS Docket No. 06-229, WT Docket No. 06-150. See, original notice in the Federal Register (FR), Vol. 77, No. 148, August 1, 2012, at Pages 45558-45571, and August 3 Public Notice (DA 12-1268). See also, extension notice in the FR, Vol. 77, No. 199, October 15, 2012, at Pages 62480-62481.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Further Notice of Proposed Rulemaking (NPRM) [146 pages in PDF] regarding its program access rules. The FCC adopted and released this item on October 5, 2012. It is FCC 12-123 in MB Docket No. 12-68. See, notice in the Federal Register, Vol. 77, No. 211, October 31, 2012, at Pages 66052-66065, and stories titled "FCC Lets Expire Its Per Se Ban on Exclusive Program Distribution Contracts", "FCC Adopts Report and Order on Program Access Rules", "FCC Adopts NPRM on Case by Case Analysis of Exclusive Contracts", and "Reaction to FCC's Program Access Order" in TLJ Daily E-Mail Alert No. 2,460, October 6, 2012.

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