TLJ News from April 21-25, 2011

House Republicans Write Apple and Others Re Cell Phone and Tablet Location Data Collection

4/25. Rep. Fred Upton (R-MI), the Chairman of the House Commerce Committee (HCC), and other HCC Republicans, sent letter a letter [PDF] to Steve Jobs, CEO of Apple, regarding the Apple operating system iOS 4's compiling of iPhone and 3G iPad users' location data.

The letter propounds numerous interrogatories. For example, it asks, "What location data do devices running your operating system track, use, store, or share?" and "Why does the device track, use, store, or share that data?"

The letter also asks whether this is, or should be, permissible under 47 U.S.C. § 222. It also asks, "Does it make sense that similar information is afforded different privacy protections depending on what entity does the collecting and what service the data is collected from, especially since the entities collecting such information are increasingly competing against each other in today's information age?"

Rep. Upton also sent a similar letter to Google, a similar letter to Microsoft, a similar letter to Nokia, a similar letter to Research in Motion, and a similar letter to Hewlett Packard (HP). These letters request answers by May 9, 2011.

Republicans, but no Democrats, signed these letters. They did sent copies to Rep. Anna Eshoo (D-CA), the ranking Democrat on the HCC's Subcommittee on Communications and Technology, who represents a Silicon Valley district, and other Democrats.

Rep. Eshoo announced on April 25 that she will host a public meeting in Palo Alto, California, on April 28 "to discuss Internet safety and privacy issues with her constituents". The other speakers will be Larry Magid (co-director of and Joe Sullivan (Chief Security Officer of Facebook). The event will begin at 7:30 PM PT at the Palo Alto City Council Chambers, 250 Hamilton Ave.

Sen. Al Franken (D-MN) sent a letter to Jobs on April 20, 2011, on the same topic. See, story titled "Sen. Franken Writes Steve Jobs Regarding Location Data Retention by iPhones and 3G iPads" in TLJ Daily E-Mail Alert No. 2,224, April 20, 2011. The Senate Judiciary Committee's (SJC) Subcommittee on Privacy, Technology and the Law is scheduled to hold a hearing titled "Protecting Mobile Privacy: Your Smartphones, Tablets, Cell Phones and Your Privacy" on May 10, 2011.

The HCC has not yet scheduled a hearing related to this matter.

USPTO to Hold Hearing on Inter Partes Reexamination Proceedings

4/25. The U.S. Patent and Trademark Office (USPTO) published a notice in the Federal Register in which it announced that it will hold a hearing on its ex parte and inter partes reexamination proceedings. The notice also requests public comments, propounds questions, and sets the deadline for responses.

The USPTO will hold a hearing on June 1, 2011, at 1:30 PM, at the USPTO, South Auditorium of Madison West, 600 Dulany Street, Alexandria, Virginia.

The deadline to request to testify at the hearing is 5:00 PM on May 11, 2011. The deadline to register to attend the hearing is 5:00 PM on May 25, 2011. The deadline to submit written comments is June 29, 2011.

See, Federal Register, April 25, 2011, Vol. 76, No. 79, at Pages 22854-22861.

The House and Senate are also considered broad patent reform legislation that would revise post grant reexamination procedure at the USPTO. See, S 23 [LOC | WW], passed by the Senate on March 8, 2011, and HR 1249 [LOC | WW], approved by the House Judiciary Committee (HJC) on April 14, 2011. Both are titled "America Invents Act".

The just published notice states that "the changes proposed in this document are complementary to the post-grant provisions in the pending America Invents Act currently being considered by Congress. In particular, the America Invents Act would not alter ex parte reexamination, and it would provide a transition period of several years during which inter partes reexamination could still be requested. Therefore, it is important for the USPTO to continue its efforts to improve the existing reexamination system."

The USPTO also issued a release that summarizes the proposed changes. "The proposed changes include: standardizing the way information is presented in reexamination requests; focusing examiners' attention on the best prior art; reducing the need for late submission of evidence and amendments; clarifying petitions practice; allowing patent owners to waive their optional ex parte statement; consolidating the inter partes action closing prosecution and right of appeal notices; and reducing unnecessary briefings in inter partes appeals."

IMF Report Projects PRC GDP will Overtake US GDP in 2016

4/25. The International Monetary Fund (IMF) released a report [242 pages in PDF] titled "World Economic Outlook: April 2011: Tensions from the Two-Speed Recovery: Unemployment, Commodities, and Capital Flows".

The IMF released a table with this report that projects the gross domestic product (GDP) based on purchasing power parity (PPP) valuation of country GDP for the United States and the People's Republic of China (PRC) for the years 2009 through 2016. It projects the PRC overtaking the US in 2016.

The IMF report also states that the US maintains an "unsustainable fiscal outlook" and that the US "stands out as the only large advanced economy where the cyclically adjusted fiscal deficit is expected to increase in 2011 compared with 2010". (See, page 63.)

This IMF report presents data and projections for aggregate levels of economic activity. It does not provide breakdowns by sectors, such as information technology or communications.

Sen. Jeff Sessions (R-AL), the ranking Republican on the Senate Budget Committee, stated in a release that "The IMF forecast that in five years China will surpass America as the world's leading economic power is a call to action. It's time to get our economy in fighting shape. Our enormous surging debt may already be costing us a million jobs a year."

Sen. Sessions continued that "A prominent study by economists Reinhart and Rogoff shows that when debt exceeds ninety percent of GDP it results in a loss of one percent in GDP growth. Treasury Secretary Geithner called this study ‘excellent’ and warned that `it understates the risks.´ Our debt burden has already passed ninety percent of GDP and is expected to reach one hundred percent in just five months. To avoid a crisis we must control our spending. Federal spending has increased from $1.8 trillion in 2001 to $3.7 trillion this year. We need a budget that spends less, not one that takes more -- an honest budget that lifts our crushing debt burden and allows our nation to compete, to thrive, and to lead in the 21st century."

See, paper titled "Growth in a Time of Debt" by Carmen Reinhart and Kenneth Rogoff.

The IMF report documents the much higher GDP growth rate in the PRC in the last two decades compared to the US, Japan and Europe. It projects a similar trend going forward.

Actual and Forecast GDP Growth
Rates for 2010, 2011, and 2012
  2010 2011 2012
US 2.8 2.8 2.9
Japan 3.9 1.4 2.1
Europe 2.1 2.0 2.2
PRC 10.3 9.6 9.5
Taiwan 10.8 5.4 5.2
Korea 6.1 4.5 4.2
See, IMF report, Tables 2.1, 2.2 and 2.4, at pages 63, 67, and 73.

Napolitano Addresses Cyber Security

4/25. Janet Napolitano, Secretary of Homeland Security, gave a speech at University of California at Berkeley titled "Securing Cyberspace: Our Shared Responsibility".

She touted the Obama administration's April 15, 2011 proposal [52 pages in PDF] regarding online authentication. She said that "What it aims to do is make online transactions more trustworthy in a simple but fundamental way: by moving away from passwords and instead toward secure, reliable credentials available to consumers who want them."

See also, story titled "EOP Paper Calls for Online Authentication" in TLJ Daily E-Mail Alert No. 2,223, April 20, 2011.

Janet NapolitanoNapolitano (at right) added that "Instead of having to remember dozens of passwords, you would have a single credential to log into any website, with more security than passwords alone could provide. And when you're not doing secure transactions, you can protect your anonymity online. Dozens, if not hundreds, of companies could offer these credentials -- which could be unique software on a smartphone, a smart card or perhaps a token -- so you'll have plenty of choices."

And, "we want to see better authentication mechanisms that protect against identity theft and spoofing, are affordable, easy to use and administer, and are scalable and interoperable".

She also discussed her understanding of the cyber security mission of the Department of Homeland Security (DHS). She said that "if the security of our cyber networks is compromised, modern life -- our economies, our health care systems, and our transportation networks -- effectively grinds to a complete halt. That possibility is why DHS has a clear mission and a clear vision when it comes to cyber."

She said that "We see cyber as part-and-parcel of a secure homeland and something that can’t be treated as separate and distinct from our other missions. Specifically, our cyber mission is two-fold. First, we're working to create a safe, secure, resilient cyber environment. And, second, we're promoting cybersecurity awareness and innovation with our many partners outside the Department."

She added that "cyberspace is fundamentally a civilian space" and that she wants a "healthy partnership between the government and the private sector".

She also spoke in vague terms about a forthcoming legislative proposal. She said that "the Administration is also putting forward a legislative proposal to Congress that will allow us to implement what I’ve been talking about here today. Government has a unique role, through legislation and regulation, to drive the outcomes we want as a nation and align them with incentives that can help get us there."

She added that "any government rules for cyberspace should identify where we want to be, not proscribe exactly how to get there, and should allow ample space for innovation. They should also be clear, fair and broadly supported, and respect and reflect the diversity of the society in which we live."

FCC TAC Offers Policy Recommendations

4/25. The Federal Communications Commission (FCC) released a Memorandum of the Tom Wheeler, Chairman of the FCC's Technical Advisory Council. It contains eight policy recommendations.

The memorandum states that the FCC should rank cities according to how "broadband-friendly" they are.

Also, the FCC should urge President Obama to "issue an Executive Order on broadband infrastructure deployment on federal land and in federal buildings".

Third, the FCC should expedite the process for tower siting by employing a shortened shot clock for co-locations on existing structures.

Fourth, the FCC should host a series of workshops directed at state and local government "about proven new technologies for efficiently deploying broadband".

Fifth, the FCC should develop a web based communication tool to provide advance notification of planned infrastructure projects to facilitate access to underground facilities.

Sixth, the FCC should develop new metrics to measure broadband network quality.

Seventh, the FCC should "highlight" and "initiate a public dialogue" regarding services that are dependent upon PSTN infrastructure.

Finally, the TAC memorandum recommends that the FCC should "convene an industry-led group" to "discuss ways to accelerate the deployment of small cell wireless devices" such as femtocells, DAS, Wi-Fi, in "commercial and government buildings and other high teledensity venues".

People and Appointments

4/25. The Software & Information Industry Association (SIIA) announced the new membership of its Software Division's Board of Directors. See, SIIA release.

USPTO Issues NOI on TTAB Participation in Settlement Discussions

4/22. The U.S. Patent and Trademark Office (USPTO) published a notice in the Federal Register requesting comments about the extent to which the Trademark Trial and Appeal Board (TTAB) "should become more directly involved in settlement discussions of parties to inter partes proceedings, including oppositions, cancellations and concurrent use cases".

This notice contains numerous questions. The notice adds that "The purpose of this notice of inquiry is to determine whether the involvement of an Administrative Trademark Judge (ATJ) or Board Interlocutory Attorney (IA) would be desirable by parties, and if so, how extensively and at what points in proceedings. In addition, to the extent stakeholders voice a preference for assistance in settlement discussions but prefer such assistance to be provided by mediators or individuals other than Board judges and attorneys, it will be useful for the Board to receive suggestions on this option."

The deadline to submit comments is June 21, 2011. See, Federal Register, April 22, 2011, Vol. 76, No. 78, at Pages 22678-22679.

More News

4/22. Microsoft, the Department of Justice's (DOJ) Antitrust Division, and state plaintiffs filed a pleading [13 pages in PDF] with this U.S. District Court (DC) titled "Joint Status Report on Microsoft’s Compliance with the Final Judgments". The next status conference is scheduled for April 27, 2011. These consolidated cases are USA v. Microsoft, D.C. No. 98-1232 CKK, and New York, et al. v. Microsoft, D.C. No. 98-1233, U.S. District Court for the District of Columbia.

4/22. The Copyright Office (CO) published a notice in the Federal Register that contains an "initial list of television stations listed in filed affidavits in which the owner or licensee of the television station attests that the station qualifies as a specialty station in accordance with the Federal Communications Commission's (FCC) definition. This CO notice also requests "objections to an owner's claim of specialty station status". The deadline to file such objections is May 23, 2011. The CO notice further states that the CO will use the final list "to verify the specialty station status of those television stations identified as such by cable systems on their semi-annual statements of account". See, Federal Register, April 22, 2011, Vol. 76, No. 78, at Pages 22733-22734.

AT&T Argues Acquisition of T-Mobile USA Will Address Spectrum and Capacity Constraints

4/21. AT&T and T-Mobile USA filed their merger application [112 pages in PDF, redacted], titled "Acquisition of T-Mobile USA, Inc. by AT&T Inc.: Description of Transaction, Public Interest Showing and Related Demonstrations", with the Federal Communications Commission (FCC).

It states that T-Mobile USA has "declining market shares and no clear path to Long Term Evolution" and "also faces new questions about its long-term capital support" from its parent company in Germany, while A&T "faces network spectrum and capacity constraints more severe than those of any other wireless provider, and this merger provides by far the surest, fastest, and most efficient solution to that challenge".

It continues that "The network synergies of this transaction will free up new capacity -- the functional equivalent of new spectrum -- in the many urban, suburban, and rural wireless markets where escalating broadband usage is fast consuming existing capacity. This transaction will thus benefit consumers by reducing the number of dropped and blocked calls, increasing data speeds, and dramatically expanding deployment of next-generation mobile technology."

It elaborates the success of the Apple iPhone and other mobile devices "now presents it with unique spectrum and capacity challenges. A smartphone generates 24 times the mobile data traffic of a conventional wireless phone, and the explosively popular iPad and similar tablet devices can generate traffic comparable to or even greater than a smartphone. AT&T’s mobile data volumes thus surged by a staggering 8000% from 2007 to 2010".

Also, while AT&T has acquired more spectrum, and added cell sites, these "are increasingly inadequate solutions to AT&T’s growing capacity constraints". It adds that "AT&T faces severe capacity constraints and cannot simply wait for the next major auction to resolve them".

AT&T's Joan Marsh stated in a release that "the absence of T-Mobile USA from the marketplace will not have a significant competitive impact. In fact, as an independent competitor, T-Mobile USA would face serious challenges. It has been losing market share the last two years, is confronting spectrum exhaust in certain markets with no ready means to acquire significant additional spectrum in the near term, and lacks a clear path to LTE."

The Senate Judiciary Committee's (SJC) Subcommittee on Antitrust, Competition Policy and Consumer Rights will hold a hearing on May 11, 2011, titled "The AT&T/T-Mobile Merger: Is Humpty Dumpty Being Put Back Together Again?". See, notice.

Groups Condemn AT&T T-Mobile Transaction

4/21. Groups that are opposed to the AT&T T-Mobile USA transaction and/or which seek Department of Justice (DOJ) or Federal Communications Commission (FCC) imposed restrictions and concessions, released statements condemning the proposed transaction as anti-competitive, and criticizing the forthcoming AT&T lobbying campaign.

The Computer and Communications Industry Association (CCIA) released a statement. It wrote that "the fundamentals of this merger present a clear and present danger to the type of competition and innovation that has been the bedrock for our technology industries and our economy since the AT&T breakup in the 80's".

The CCIA also wrote that "To combat their weak case, AT&T is mounting a massive lobbying and PR effort. Their aim is to convince key decision makers, and those they listen to, of the absurd proposition that having fewer choices of wireless carriers will not lead to less competition in price, service and innovation.  At the same time, AT&T’s already huge political contribution machine will likely focus on upcoming campaign fundraising for members of Congress to get Congressional pressure on federal regulators charged with protecting consumers to allow this outrage."

Ed Black, head of the CCIA, stated that "Allowing a merger that would so clearly eliminate the most significant maverick wireless competitor makes no sense -- as it drives up consumer prices and drops customer service to its lowest common denominator. It's up to the FCC to protect the public interest in vigorous, dynamic, multi-player competition."

CCIA VP Cathy Sloan, who focuses on communications issues, predicted that the Department of Justice's (DOJ) Antitrust Division will block this merger, and that the FCC will find the proposal troubling.

Gigi Sohn, head of the Public Knowledge (PK), stated in a release that "Over the next few weeks and months, AT&T will spend millions of dollars to persuade the government and the American people that their takeover of T-Mobile is in the public interest. They will hire faculties worth of economists who will produce libraries worth of “research.” They will donate hundreds of thousands of dollars to outside groups. They will equip themselves with battalions of outside lobbyists, including prominent former members of Congress and will spend millions more in campaign and other contributions. They will blanket the airwaves with ads."

Sohn also argued that this transaction "will hurt consumers, raising prices, restricting innovation and limiting choice. The plain fact is that every one of the benefits AT&T promised to achieve can be accomplished without this merger." At bottom, "AT&T is simply reducing the number of national carriers from four to three."

The Free Press's Derek Turner stated in a release that "No matter how many high-priced lobbying firms AT&T hires, it won't be able to fool Americans into thinking the reconstitution of the Ma Bell monopoly is a good thing. Make no mistake, this deal is about eliminating a competitor and nothing more."

FCC Releases Tentative Agenda for May 12 Meeting

4/21. The Federal Communications Commission (FCC) released a tentative agenda for its May 12, 2011, event titled "open meeting".

First, the FCC is scheduled to adopt a Notice of Proposed Rulemaking (NPRM) regarding further expansion of its network outage reporting requirements to also cover broadband internet access service (BIAS) providers and voice over internet protocol (VOIP) providers.

The FCC issued a Public Notice (PN) [6 pages in PDF] on this subject on July 2, 2010. That PN is DA 10-1245 in ET Docket No. 04-35, WC Docket No. 05-271, and GN Docket Nos. 09-47, 09-51, and 09-137.

The FCC created its network outage reporting requirements for wireline phone service providers back in 1992. It has since expanded this mandate to encompass voice and paging services provided by regulated wireline, wireless, cable and satellite service providers. However, the Communications Act contains no provision that directs the FCC to impose network outage reporting requirements. And, the Act does not authorize the FCC to regulate BIAS providers. Hence, this NPRM would propose that the FCC regulate beyond its authority.

Also, network outage is an old concept, applicable to the PSTN, PSAPs and ANI/ALI. If the FCC were to expand its mandate, it would have to rewrite its definitions to explain what is a network outage in the context of internet access.

Second, the FCC is scheduled to adopt a NPRM regarding removing "outdated regulations governing the exchange of telephone traffic between U.S. and foreign carriers that are no longer necessary to protect consumers and competition, while strengthening protections against anticompetitive practices by foreign carriers".

Third, the FCC is scheduled to adopt a Report and Order (R&O) and Further NPRM regarding eliminating "unnecessary reporting requirements regarding international telephone service, while streamlining and modernizing remaining international data reporting to ensure continued relevance in light of changing markets.

This event is scheduled for Thursday, May 12, 2011, in the FCC's Commission Meeting Room.

People and Appointments

4/21. Sen. John Ensign (R-NV), a member of the Senate Commerce Committee (SCC), announced his resignation. He had previously announced that he would not run for re-election in 2012. He had an affair with another man's wife. See, Sen. Ensign's notice.

4/21. President Obama announced his intent to nominate Susan Athey to be a member of the President’s Committee on the National Medal of Science. See, White House news office release.

Go to News from April 16-20, 2011.