1/30. The Federal Communications Commission (FCC) filed a letter brief [5 pages in PDF] with the U.S. Court of Appeals (3rdCir) in Prometheus Radio Project v. FCC, the case which consolidates numerous petitions for review of the FCC's changes to its media ownership rules.

On January 27, the Court of Appeals asked for comments regarding the effect of the language in the FY 2004 omnibus appropriations bill pertaining to the national television ownership cap.

The FCC wrote in its letter brief that the bill directs the FCC "to modify its rules with respect to the national television ownership limitation. In addition, the new statute modifies the biennial review requirement of the 1996 Act to a quadrennial review requirement and excepts from the quadrennial review requirement ``any rules relating to the 39 percent audience reach limitation in subsection (c)(1)(B).´´ "

The FCC added that the FCC "is thus under a statutory directive to modify the national television ownership rule. Once the Commission has amended the rule, challenges pending before the Court to the agency's action increasing the limit to 45% ... will become moot."

The FCC recommended that "the Court may prefer to streamline the oral argument scheduled for February 11, 2004, by eliminating consideration of the national television ownership rule."

The FCC also stated that "Intervenor Capitol Broadcasting has sought to challenge the UHF discount rule, which is an
appendage to the national television ownership rule. We believe that the Court lacks jurisdiction over Capitol’s challenge" because Capitol "has sought reconsideration of the same issues by the agency."

The FCC argued in the alternative that "If the Court, however, is not prepared to conclude that jurisdiction is lacking, it should hold the UHF discount issue in abeyance pending FCC action on Capitol’s reconsideration petition. ... In either event, we do not believe that it will be necessary for the Court to hear oral argument on that aspect of this case."

HR 2673, the omnibus appropriations bill, signed by President Bush on January 23, 2004, contains appropriations for many technology related departments, agencies and other units, including the FCC. It also contains several technology related substantive law provisions. The bill appropriates to the FCC for FY 2004 $273,958,000.

The bill also contains substantive language regarding the national TV ownership cap. It amends the Communications Act to provide a cap of 39 percent. Section 629 provides as follows:

"The Telecommunications Act of 1996 is amended as follows--
  (1) in section 202(c)(1)(B) by striking `35 percent' and inserting `39 percent';
  (2) in section 202(c) by adding the following new paragraphs at the end:
    `(3) DIVESTITURE- A person or entity that exceeds the 39 percent national audience reach limitation for television stations in paragraph (1)(B) through grant, transfer, or assignment of an additional license for a commercial television broadcast station shall have not more than 2 years after exceeding such limitation to come into compliance with such limitation. This divestiture requirement shall not apply to persons or entities that exceed the 39 percent national audience reach limitation through population growth.
    `(4) FORBEARANCE- Section 10 of the Communications Act of 1934 (47 U.S.C. 160) shall not apply to any person or entity that exceeds the 39 percent national audience reach limitation for television stations in paragraph (1)(B);'; and
  (3) in section 202(h) by striking `biennially' and inserting `quadrennially' and by adding the following new flush sentence at the end:
`This subsection does not apply to any rules relating to the 39 percent national audience reach limitation in subsection (c)(1)(B).'."

See also, story titled "Summary of Technology Related Provisions of the Omnibus Appropriations Bill", also published in TLJ Daily E-Mail Alert No. 824, January 27, 2004.

On July 2, 2003, the FCC released its Report and Order and Notice of Proposed Rulemaking [257 pages in PDF] in its proceeding regarding its media ownership rules. See, story titled "FCC Releases Media Ownership Order and NPRM" in TLJ Daily E-Mail Alert No. 692, July 7, 2003. The FCC announced, but did not release, this item at its June 2, 2003 meeting. See, story titled "FCC Announces Revisions to Media Ownership Rules" in TLJ Daily E-Mail Alert No. 672, June 3, 2003.

2/3. Rep. Lamar Smith (R-TX) and Rep. Howard Berman (D-CA) introduced HR 3754, the "Fraudulent Online Identity Sanctions Act", a bill to provide additional civil and criminal remedies in actions that also involve domain name fraud.

Rep. Smith and Rep. Berman (at right) are the Chairman and ranking Democrat on the House Judiciary Committee's Subcommittee on Courts, the Internet and Intellectual Property (CIIP).

The bill addresses problems associated with the registration of domain names with false information. For example, law enforcement authorities use the Whois database of domain name registration information to identify and locate people who use web sites to commit crimes. False registration information makes identifying the fraud artists more difficult. Similarly, false registration information makes it harder for trademark holders to pursue cybersquatters who register domain names that infringe their trademarks. False registration information also makes it harder for copyrights holders and manufacturers to locate online infringers and online sellers of counterfeit goods.

The CIIP Subcommittee held a hearing on this issue on February 4. See, story below titled "House Subcommittee Holds Hearing on False Domain Name Registration Data".

The bill as introduced creates no new civil or criminal prohibition of registering a domain name with false information. Nor does it impose any requirements upon domain name registrars to verify domain name registration information, to refuse to register domain names when it knows that the registration information is false, or to cancel registrations made with false registration information.

Rather, the bill adds new civil remedies and criminal penalties for violation of existing statutes, where the violation also involves registering a domain name with false information.

The bill amends the Trademark Act to provide that a violation of Section 1117 shall be considered willful, if the violation involves registering a domain name with false information.

The bill amends the Copyright Act to provide that, for the purpose of calculating statutory damages for infringement, the infringement shall be considered willful if the infringement also involves registering a domain name with false information.

The bill does not create a new criminal offense of  registering a domain name with false information. Rather, it provides that if one commits a felony offense, and in furtherance of that offense, registers a domain name with false information, then the sentence imposed for that offense shall be increased.

First, the bill would amend 11 U.S.C. § 1117 (Trademark Act of 1946) to provide that "(e) In a case of a violation under this section, occurring at or in connection with an online location, the violation shall be considered to be willful for purposes of this section if the violator, or a person acting in concert with the violator, knowingly provided material and misleading false contact information to a domain name registrar, domain name registry, or other domain name registration authority in registering a domain name used in connection with the online location, or in maintaining or renewing such registration."

Second, the bill would amend the section of the Copyright Act that provides remedies for infringement, 17 U.S.C. § 504

Section 504(c) addresses statutory damages. The bill would add new language to Section 504(c)(2): "In a case of infringement occurring at or in connection with an online location, the infringement shall be considered to be willful for purposes of this paragraph where the copyright owner sustains the burden of proving, and the court finds, that the infringer or a person acting in concert with the infringer knowingly provided material and misleading false contact information to a domain name registrar, domain name registry, or other domain name registration authority in registering a domain name used in connection with the online location, or in maintaining or renewing such registration. ..."

Both the amendment to Title 15 (trademarks) and to Title 17 (copyrights) use the term "online location". This term is not explained or defined by the bill.

Finally, the bill would amend the sentencing provisions of the Criminal Code that are codified at 18 U.S.C. § 3559 to add a sentencing enhancement for offenses that involve falsification relating to domain names.

The bill would add a new subsection (f), that provides, in part, that "The maximum imprisonment otherwise provided by law for a felony offense shall be increased by 7 years if, in furtherance of that offense, the defendant knowingly provided material and misleading false contact information to a domain name registrar, domain name registry, or other domain name registration authority in connection with a domain name registration."

2/4. The House Judiciary Committee's Subcommittee on Courts, the Internet, and Intellectual Property held a hearing on internet domain name fraud and HR 3754, the "Fraudulent Online Identity Sanctions Act".

See, related story in this issue, titled "Representatives Introduce Bill to Deter Domain Name Fraud".

Timothy Trainer, President of the International AntiCounterfeiting Coalition (IACC), stated in his prepared testimony [8 pages in PDF] that persons who sell counterfeit goods online often provide false information when registering domain names. He said that "there is not sufficient deterrence to stop the practice of individuals obtaining Registered Names by using false information."

Scott Evans, of the International Trademark Association (INTA), wrote in his prepared testimony [9 pages in PDF] cybersquatters too often provide false registration information. He stated that "Whois serves a vital role in preventing domain name fraud. ... Trademark owners value Whois data in order to resolve domain name disputes (e.g., cybersquatting), learn the contact details for owners of websites offering counterfeit products or other infringement of intellectual property, manage trademark portfolios, provide due diligence on corporate acquisitions, and identify company assets in insolvencies/bankruptcies."

He continued that "trademark owners have for many years been encountering instances of blatantly inaccurate or missing data often from fictitious entities listing false addresses, as well as information that is simply out of date."

Evans added that "we have not seen any concrete steps by ICANN or domain name registrars to improve Whois accuracy." The INTA therefore supports efforts "to try and develop new statutory tools that will help accomplish this goal."

Rick Wesson, CEO of Alice's Registry, and Vice-Chair and Chief Technical Officer of the Registrars Constituency within Internet Corporation for Assigned Names and Numbers (ICANN), wrote in his prepared testimony that "the registrants for Internet domain names are a global population. Registrars in France sell to registrants in the US and US based registrars sell domains to registrants in India and many other countries. Performing analysis on the registrant data when the registrant is located in one of over 200 countries is difficult but not beyond the reach of all but the largest Internet based businesses."

He expressed support for HR 3754, stating that "it might indeed have a deterrent effect". However, he continued that "As it stands, the proposed legislation does not impact registrars. With no provision barring registrars from accepting fraudulent registrant data or requiring a registrar verify registrant data, I expect the industry to continue on its present course."

He added that "With simple regulation that registrars validate the accuracy of their Whois data, then law-enforcement can uphold the law. With out it, law-enforcement will just be swimming around in invalid data. It’s that simple. The technology exists, but legislation needs to require a reasonable effort on registrars' part to use it. Please add a requirement that registrars be involved in validating a potentially accurate representation of those they register."

Mark Bohannon, of the Copyright Coalition on Domain Names (CCDN), wrote in his prepared testimony [14 pages in PDF] that "The Whois database remains riddled with inaccurate data".

He continued that "the legislation on the table at this hearing takes the right approach. It targets the “bad actors” who are using the Internet to commit crimes, infringe on intellectual property rights, or commit cybersquatting. It focuses solely on those already convicted of serious crimes, or found liable for online infringements, and who also have chosen to try to hide their tracks, complicate the work of law enforcement and undermine public confidence in e-commerce by deliberately inserting materially false contact data into Whois."

He added that "we look forward to working with all the key participants to increase the incentives on domain name registries and registrars to demand accurate data, to take reasonable steps to verify the accuracy of the data they receive, and to cancel the registrations of registrants who refuse to live up to this obligation."

2/4. The House Commerce Committee's Subcommittee on Telecommunications and the Internet held a hearing titled "The Current State of Competition in the Communications Marketplace".

See, prepared testimony of witnesses: Michael Balhoff (Managing Director of the Telecommunications Group at Legg Mason), Frank Louthan VP of Equity Research at Raymond James Financial), Adam Quinton (Merrill Lynch), and Ned Zachar (Weisel Partners, Director of Telecom Services Research).

Rep. John Dingell (D-MI), the ranking Democrat on the Commerce Committee, wrote in a prepared statement that the Communications Act needs an overhaul.

Rep. Dingell (at right) He wrote that "there is virtually no correlation between the regulations that presently govern the communications marketplace and the networks and services that comprise this market today"

"Despite all the advances in technology and, in particular, the digitization of modern communications networks, the industry is still governed by laws that were passed before the emergence of the Internet", wrote Dingell. "Of the two major titles of the Communications Act that govern the communications marketplace, the first was written many years ago to regulate the offering of switched analog voice service over a copper wire; the second was written nearly as many years ago to regulate the offering of an analog one-way video service over coaxial cable."

He added that "the analog world contemplated by the Communications Act no longer exists."

He concluded, "I remain hopeful that Congress will soon change course and fundamentally overhaul the law to reflect the advances in the modern communications marketplace. I am encouraged by recent comments from Senator Stevens that he will look to reexamine the Communications Act during the next Congress, and I intend to push this Committee to undertake a similar endeavor."

2/4. Rep. Billy Tauzin (R-LA), the Chairman of the House Commerce Committee, will not run for re-election in November. He will also relinquish the Chairmanship of the Commerce Committee, effective February 16.

Rep. Tauzin (at right) became Chairman at the start of the 107th the Congress in January 2001. Before that, he was the Chairman of the Telecom Subcommittee.

Last August, the ranking Democrat on the Senate Commerce Committee, Sen. Ernest Hollings (D-SC), announced that he will not seek re-election. See, story titled "Sen. Hollings Will Not Run in 2004" in TLJ Daily E-Mail Alert No. 711, August 5, 2003.

Sen. Hollings has been associated with the interests of the competitive local exchange carriers (CLECs), while Rep. Tauzin's actions have more often been supported by the incumbent local exchange carriers (ILECs). BellSouth released a statement lamenting that Rep. Tauzin "will be missed".

In addition, Sen. John Breaux (D-LA), the senior Senator from Louisiana, and a member of the Senate Commerce Committee, and its Communications Subcommittee, announced in December that he will not seek re-election.

Rep. Tauzin may represent the Pharmaceutical Research and Manufacturers of America (PhRMA) before the Congress. This has promoted another interest group, Common Cause, to complain. See, statement.

The Senate office buildings (Russell, Hart and Dirksen) will be closed due to the discovery of the presence of ricin in a mailroom in the Dirksen Building.

10:30 AM - 12:00 NOON. The Federal Communications Commission's (FCC) World Radioconference 2007 (WRC-07) Advisory Committee, Informal Working Group 1: Terrestrial and Space Science Services, will meet. See, notice [PDF]. Location: Room 8-B516, 8th Floor, South Conference Room, 445 12th Street, SW.

Day one of a two day event hosted by the U.S. Chamber of Commerce titled "Strategic Leadership Forum: Mitigating the Impact of Intellectual Property Theft and Counterfeiting". This is an invitation only event; for more information, contact Aaron Guiterman or Scott Griset at 202 463-5500. See, notice.

The Senate office buildings (Russell, Hart and Dirksen) will be closed due to the presence of ricin in a mailroom in the Dirksen Building.

9:30 AM - 11:00 AM. The Progressive Policy Institute (PPI) will host a program titled "Reversing Rural America's Economic Decline: The Case for a National Balanced Growth Strategy". The speakers will be Robert Atkinson (PPI VP) and Dee Davis (President, Center for Rural Strategies). The program will not be about technology policy. However, Atkinson is Director of the PPI's Technology and New Economy Project, and among the topics that he will cover will be broadband as an enabler of rural growth, and how technology provides new challenges and opportunities with respect to where companies locate. Breakfast will be served. RSVP to 202 547-0001. Location: PPI, 600 Pennsylvania Ave., SE, Suite 400.

CANCELLED. 12:00 NOON - 1:30 PM. The Cato Institute will host a Capitol Hill briefing titled "Internet Taxation: The State of the Debate". The speakers will be Sen. George Allen (R-VA), Lee Goodman (Wiley Rein & Fielding), and Adam Thierer (Cato). Location: Room 325, Russell Building.

12:00 NOON - 2:00 PM. The DC Bar Association will host a luncheon program titled "The Copyright Office Speaks: The Ninth Annual Event with the Honorable Marybeth Peters -- Register of Copyrights". Prices vary. For more information, call 202 626-3463. Location: City Club of Washington, 555 13th Street, NW.

12:00 NOON. The Progress and Freedom Foundation (PFF) will host a luncheon on voice over internet protocol (VOIP) technology. The speaker will be Vonage Ch/CEO Jeffrey Citron. To attend, contact Brooke Emmerick at 202 289-8928 or bemmerick@pff.org. See, PFF notice. Location: Salon D, J.W. Marriott Hotel, 1331 Pennsylvania Avenue, NW.

Day two of a two day event hosted by the U.S. Chamber of Commerce titled "Strategic Leadership Forum: Mitigating the Impact of Intellectual Property Theft and Counterfeiting". This is an invitation only event; for more information, contact Aaron Guiterman or Scott Griset at 202 463-5500. See, notice.

Extended deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking [35 pages in PDF] regarding unlicensed devices. See, notice in the Federal Register, December 10, 2003, Vol. 68, No. 237, at Pages 68823 - 68831. The FCC adopted this NPRM on September 10, 2003. See, FCC release [PDF]. The FCC released the NPRM [35 pages in PDF] on September 17, 2003. This NPRM is FCC 03-223 in ET Docket No. 03-201. See also, stories titled "FCC Announces NPRM Regarding Unlicensed Devices" in TLJ Daily E-Mail Alert No. 739, September 15, 2003, and "FCC Announces Deadlines for Comments on Unlicensed Devices NPRM" in TLJ Daily E-Mail Alert No. 800, December 16, 2003. See also, FCC order [PDF] extending the deadline for reply comments from January 26 to February 7.

10:00 AM. The Senate Governmental Affairs Committee will hold a hearing to examine the Department of Homeland Security's budget for FY 2005. Location: Room 342, Dirksen Building.

Day one of a two day conference hosted by the National Institute of Standards and Technology (NIST) titled "Knowledge Based Authentication: Is it Quantifiable?". See, notice and event web site. Location: NIST, Administration Building, Green Auditorium, Gaithersburg, MD.

12:15 PM. The Federal Communications Bar Association (FCBA) Cable and Legislative Practice Committees will host a brown bag lunch. The speakers Bill Bailey (Majority Counsel for the Senate Commerce Committee) and James Assey (Minority Counsel for the Senate Commerce Committee). For more information, contact Catherine Bohigian at Catherine.Bohigian@fcc.gov. RSVP to Wendy Parish at wendy@fcba.org. Location: Willkie Farr & Gallagher, 1875 K Street, NW.

7:00 AM - 5:00 PM. Day one of a two day conference hosted by the National Telecommunications and Information Administration (NTIA) titled "Public Safety Spectrum Management Forum". See, notice. Location: Omni Shoreham Hotel, 2500 Calvert Street, NW.

9:30 AM. The Senate Armed Services Committee will hold a hearing on President Bush's defense authorization request for FY 2005 and the future years defense program. See, notice. Location: Room 325, Russell Building.

Deadline to submit comments to the U.S. Patent and Trademark Office (USPTO) in response to its notice of proposed rulemaking (NPRM) regarding "Changes to Representation of Others Before the United States Patent and Trademark Office". See, notice in the Federal Register, December 12, 2003, Vol. 68, No. 239, at Pages 69441-69562. See also, USPTO release.

Day two of a two day conference hosted by the National Institute of Standards and Technology (NIST) titled "Knowledge Based Authentication: Is it Quantifiable?". See, notice and event web site. Location: NIST, Administration Building, Green Auditorium, Gaithersburg, MD.

Deadline to submit comments regarding the workshop to be hosted by the Department of Justice's (DOJ) Antitrust Division and the Federal Trade Commission (FTC) on application of the Horizontal Merger Guidelines on February 17-19. See, notice.

7:00 AM - 5:00 PM. Day two of a two day conference hosted by the National Telecommunications and Information Administration (NTIA) titled "Public Safety Spectrum Management Forum". See, notice. Location: Omni Shoreham Hotel, 2500 Calvert Street, NW.

9:30 AM. The House Commerce Committee's Subcommittee on Telecommunications and the Internet will hold a hearing on HR 3717, the "Broadcast Decency Enforcement Act of 2004". The hearing will be webcast. See, notice. Press contact: Ken Johnson or Jon Tripp at 202 225-5735. Location: Room 2123, Rayburn Building.

10:00 AM. Federal Reserve Board Chairman Alan Greenspan will deliver the Federal Reserve's semiannual report on monetary policy to the House Financial Services Committee. Location: Room 2128, Rayburn Building.

10:00 AM - 12:00 NOON. The Federal Communications Commission's (FCC) Wireless Telecommunications Bureau (WTB) will hold an event titled "Presentation for New ULS Online Services, MDS and ITFS". Location: FCC, 445 12th Street, SW, Room 3-B516 (3rd Floor South Conference Room).

12:00 NOON - 1:00 PM. The New America Foundation (NAF) will host a brown bag lunch. The speaker will be David Dorman (Ch/CEO of AT&T). The topic will be "Making the Right Choices about the Future of Communications". See, notice. Location: NAF, 7th Floor, 1630 Connecticut Ave., NW.

12:15 PM. The Federal Communications Bar Association's (FCBA) Online Communications Practice Committee will host a brown bag lunch titled "Legislative and Regulatory Update on Internet and E-Commerce Privacy Issues". The speakers will be Chris Hoofnagel (EPIC) and Heidi Salow (Nextel). For more information, contact Vincent Paladini, Karlyn Stanley (CRB, 202 828-9835), or Amy Wolverton. Location: Cole Raywid & Braverman, 1919 Pennsylvania Ave., NW, Suite 200.

2:00 PM. The House Ways and Means Committee will hold a hearing on President Bush's FY 2005 budget proposal. The witness will be Office of Management and Budget (OMB) Director Joshua Bolten. Location: Room 1100, Longworth Building.

5:00 - 7:00 PM. The Congressional Internet Caucus's Advisory Committee will host a reception and technology fair. For more information contact Megan Kinnaird at 202 638-4370. See, notice. Location: Room 902, Hart Building.

Lincoln's Birthday.

9:00 AM. The House Ways and Means Committee's Subcommittee on Oversight will hold a hearing on "IRS Efforts to Modernize its Computer Systems". See, notice. Location: Room 1100, Longworth Building.

9:30 AM. The Federal Communications Commission (FCC) will hold a meeting. The event will be webcast. Location: FCC, 445 12th Street, SW, Room TW-C05 (Commission Meeting Room).

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in NCTA v. FCC, No. 03-1140. Judges Edwards, Roberts and Silberman. Location: Location: 333 Constitution Ave. NW.

10:00 AM. The Senate Budget Committee will hold a hearing to examine President Bush's FY 2005 budget proposals. Location: Room 608, Dirksen Building.

11:00 AM - 12:00 NOON. The Heritage Foundation will host a panel discussion titled "Federalism and the Internet Tax: A Conflict of Two Conservative Principles?" The speakers will be Sen. George Allen (R-VA), Sen. Lamar Alexander (R-TN), Edward Fuelner (Heritage), and James Gattuso (Heritage). See, notice. Location: Heritage, 214 Massachusetts Ave NE.

Extended deadline to submit comments to the Department of Commerce's (DOC) Bureau of Industry and Security (BIS), which is also known as the Bureau of Export Administration (BXA), regarding its notice of proposed rulemaking (NPRM) regarding amending the Export Administration Regulations (EAR) to implement a revised version of the BIS's Simplified Network Application Processing (SNAP+) system. This proposed rule also would mandate use of SNAP+ for all filings of Export License applications (except Special Comprehensive Licenses), Reexport Authorization requests, Classification requests, Encryption Review requests, and License Exception AGR notifications, unless the BIS authorizes paper filing for a particular user or transaction. See, notice in the Federal Register, November 12, 2003, Vol. 68, No. 218, at Pages 64009-64023 (setting January 12, 2003 deadline), and notice in the Federal Register January 12, 2004, Vol. 69, No. 7, at Page 1685 (extending deadline to February 12) .

1/28. Rep. Anthony Weiner (D-NY) introduced HR 3749, the "Local Government Internet Tobacco Sales Enforcement Act of 2004". The House Judiciary Committee amended and approved HR 2824, the "Internet Tobacco Sales Enforcement Act", by unanimous voice votes, on January 28, 2004. HR 2824 would make it easier for states to collect taxes on sales of cigarettes. Currently, many internet sellers are not paying state taxes. Rep. Weiner wants any legislation that is ultimately passed by the Congress to also give enforcement authority to local governments that tax cigarettes, such as New York City, which he represents. HR 3749 would accomplish this. See also, story titled "House Judiciary Committee Approves Internet Tobacco Sales Enforcement Act", also published in TLJ Daily E-Mail Alert No. 826, January 29, 2004.

2/2. Sen. Byron Dorgan (D-ND) praised the National Telecommunications Cooperative Association (NTCA) on the occasion of its 50th anniversary in a statement in the Senate. See, Congressional Record, February 2, 2004, at page S368.

2/4. The Copyright Office published a notice in the Federal Register listing arbitrators eligible for service on a Copyright Arbitration Royalty Panel (CARP) during 2004 and 2005. See, Federal Register, February 4, 2004, Vol. 69, No. 23, at Pages 5370 - 5371.

2/4. The Copyright Office published a notice in the Federal Register announcing a new policy for delivering documents to the Office of the General Counsel (OGC). It states, among other things, that "Hand deliveries made by commercial couriers and messengers may no longer be made directly to the Library of Congress". It also states that hand deliveries for the OGC by private parties must be delivered to Room LM-401 of the Madison Building. See, Federal Register, February 4, 2004, Vol. 69, No. 23, at Pages 5371 - 5372.