7/28. The Federal Communications Commission (FCC) released the agenda for its meeting of Wednesday, August 4, 2004. The agenda includes a Notice of Proposed Rulemaking (NPRM) and Declaratory Ruling (DR) regarding the Department of Justice's (DOJ) request that the FCC administratively amend the CALEA statute to cover information services, such as VOIP. The agenda also includes consideration of various applications for certification of digital output protection technologies and recording methods under the FCC's broadcast flag rule.

The agenda also includes an order regarding wireless spam, a Report and Order (R&O) regarding network outage reporting, a R&O regarding DTV conversion, and an item on fraud in the FCC's e-rate subsidy program.

The agenda also includes a Notice of Inquiry on the Emergency Alert System, and an order on reconsideration regarding BellSouth's and SureWest's petition regarding the triennial review order. In addition, the meeting will include a report presentation by the FCC's Homeland Security Policy Council.

Expansion of CALEA to Cover Information Services. The FCC will consider a Notice of Proposed Rulemaking (NPRM) and Declaratory Ruling (DR) regarding the Department of Justice's (DOJ) March 10, 2004 petition for rulemaking [83 pages in PDF] regarding requiring broadband service providers, voice over internet protocol (VOIP) application providers, and others, to design and modify their networks, hardware, software, and equipment in a manner that enables the DOJ and other government agencies to more conveniently intercept VOIP and other internet based communications.

The DOJ seeks the ability to access internet based communications the way it has long been able to wiretap the old public switched telephone network (PSTN). The DOJ has authority, which it regularly uses, to intercept internet communications. The USA PATRIOT expanded and clarified this authority. This proceeding is about forcing the information technology industry to design its products so that they are more susceptible to easy government interception.

The DOJ has petitioned the FCC to interpret and implement the Communications Assistance for Law Enforcement Act (CALEA), which is codified at 47 U.S.C. § 1001, et seq. The CALEA requires that a "telecommunications carrier" must design its network to facilitate wiretapping. However, it only applies to a "telecommunications carrier". The DOJ asks that the FCC, by administrative fiat, expand the scope of the statute to apply to information services, such as broadband internet access services, and VOIP applications that use broadband internet connections. This is the FCC's RM 10865.

See also, story titled "Summary of DOJ Petition for Rulemaking to Expand the CALEA to Cover Information Services" in TLJ Daily E-Mail Alert No. 873, April 9, 2004.

Broadcast Flag Certifications. The FCC will consider an Order responding to various applications for certification of digital output protection technologies and recording methods under the FCC's broadcast flag rule. This proceeding is titled "Digital Output Protection Technologies and Recording Method Certifications". The proceeding numbers are MB Docket Nos. 04-55, 04-56, 04-57, 04-58, 04-59, 04-60, 04-61, 04-62, 04-63, 04-64, 04-65, 04-66, and 04-68.

On November 4, 2003, the FCC adopted and released its Report and Order and Further Notice of Proposed Rulemaking [72 pages in PDF] in its proceeding titled "In the Matter of Digital Broadcast Content Protection". This item is FCC 03-273 in MB Docket No. 02-230.

This item promulgated rules that include a broadcast flag mandate. A broadcast flag is digital code embedded into a digital broadcasting stream. It signals digital television (DTV) reception equipment to limit redistribution. For it to be effective, DTV equipment must give effect to a broadcast flag. Hence, this report and order contains technology mandates for equipment manufacturers. See, story titled "FCC Releases Broadcast Flag Rule" in TLJ Daily E-Mail Alert No. 772, November 5, 2003.

Subsequently, equipment makers submitted various applications to the FCC, pursuant to the interim approval process for digital output protection technologies and recording methods established by the broadcast flag rule, for certification of their technologies. See, for example, application [45 pages in PDF] of TiVo in MB Docket No. 04-63.

CAN SPAM Act and Wireless Devices. The FCC will consider an Order implementing the CAN-SPAM Act (Controlling the Assault of Non-Solicited Pormography and Marketing Act of 2003. The Congress passed the S 877, the CAN-SPAM Act late last year. President Bush signed the bill on December 16, 2003. It is Public Law No. 108-187.

The CAN-SPAM Act give primary rulemaking authority to the Federal Trade Commission (FTC). However, the Act also gives the FCC authority with respect to "unwanted mobile service commercial messages".

The Act directs the FCC to write rules that "provide subscribers to commercial mobile services the ability to avoid receiving mobile service commercial messages unless the subscriber has provided express prior authorization to the sender", and "allow recipients of mobile service commercial messages to indicate electronically a desire not to receive future mobile service commercial messages from the sender".

This Order is in the proceeding titled "Rules and Regulations Implementing the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003" and numbered CG Docket No. 04-53, and in the proceeding titled "Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991" and numbered CG Docket No. 02-278.

See, story titled "FCC Announces Rulemaking on Wireless Provisions of CAN-SPAM Act" TLJ Daily E-Mail Alert No. 855, March 15, 2004.

Network Outage Reporting RO. The FCC will consider a Report and Order regarding the reporting of service disruptions by telecommunications services providers. On February 12, 2004, the FCC adopted a notice of proposed rulemaking (NPRM) regarding network outage reporting. This item is FCC 04-30 in ET Docket No. 04-35. The FCC issued a release [PDF] that states that it "proposes to require wireless, wireline, cable, and satellite telecommunications providers to report information electronically to the Commission about significant disruptions to their communications systems."

Conversion to DTV. The FCC will consider a Report and Order regarding the conversion to digital television. This proceeding is titled "Second Periodic Review of the Commission’s Rules and Policies Affecting the Conversion to Digital Television". It is MB Docket No. 03-15 and RM-9832.

The FCC adopted its Notice of Proposed Rulemaking (NPRM) [MS Word] on January 15, 2004, and released it on January 27. See also, story titled "FCC Announces Digital TV NPRM" in TLJ Daily E-Mail Alert No. 592, January 28, 2003.

E-Rate Fraud. The FCC will consider a Fifth Report and Order and Order regarding measures to protect against waste, fraud and abuse in the administration of the schools and libraries program, which is also known as the e-rate program. This is CC Docket No. 02-6.

Emergency Alert System. The FCC will consider a Notice of Inquiry (NOI) regarding the examination of the Emergency Alert System as an effective mechanism for warning the American public during an emergency.

BellSouth/SureWest Petition. The FCC will consider an Order on Reconsideration that addresses, in part, the petitions filed by BellSouth and SureWest regarding the FCC's Triennial Review Order (TRO) regarding the unbundling obligations of incumbent local exchange carriers (ILECs).

Homeland Security Presentation. The FCC's Homeland Security Policy Council will present a report regarding the FCC's regulatory, outreach, and partnership initiatives in support of homeland security.

The meeting will be held on Wednesday, August 4, 2004 at 9:30 AM. It will be held in the FCC's Commission Meeting Room (Room No. TW-C305), at 445 12th Street, SW. The meeting is open to the public, and will be webcast by the FCC.

The FCC does not always commence its meetings at the scheduled time. The FCC does not always consider all of the items on its agenda. The above summary does not list the items in the same order in which they will be considered by the FCC.

7/28. The Department of Justice (DOJ) held a ceremony at Constitution Hall in Washington DC at which it announced its annual Attorney General's Awards. Some of the many awards were related to information technology and communications.

The DOJ gave an award titled the "John Marshall Award for Providing Legal Advice" to a group of lawyers in the Antitrust Division. The DOJ wrote in a release that "These recipients, through their leadership, dedication, and exceptionally detailed and sound advice to the Federal Communications Commission, have played a crucial role in helping to develop an environment conducive to the development of competition as envisioned by Congress in passing the Telecommunications Act of 1996."

The DOJ listed the winners of this award: "From the Telecommunications and Media Section -- Nancy M. Goodman, Chief, Laury E. Bobbish, Supervisory Trial Attorney, Luin P. Fitch, Jr., Carl Willner, Brent E. Marshall, and Lauren J. Fishbein, Trial Attorneys; from the Legal Policy Section -- Frances E. Marshall, Attorney Advisor; and from the Foreign Commerce Section -- Cynthia Lewis Lagdameo, Trial Attorney."

The DOJ also gave an award titled "Attorney General's Award for Excellence in Information Technology" to a large group of people who work with information technology at the DOJ. The DOJ stated in a release that this award "recognizes achievements in applying information technology to improve operations and productivity, reduce or avoid costs, and solve problems". The DOJ added that the winners "upgraded technological infrastructure and business systems". The winners includes David Zeppieri, the Chief Information Officer.

Attorney General John Ashcroft was on hand to present awards. Also, on June 9, 2004 he testified before the Senate Judiciary Committee. One of the issues that he addressed in his prepared testimony was information technology at the DOJ.

He wrote that "Effective information technology is critical for both the fight against terrorism and the efficient delivery of services to the public. That is why we have revitalized our Information Technology organization. With the appointment of a new Chief Information Officer, or CIO, the new tech team is leveraging the leadership of experienced executives and managers to implement an Information Technology strategy that is on the cutting edge."

For example, he wrote that the DOJ has "Published the first Department Information Technology Strategic Plan in 2002. This means we turned fragmented, stand-alone plans into a single, cohesive Department-wide strategy for effective technology deployment in the future." He also wrote that the DOJ has "Begun designing a single enterprise architecture. This means we will have a technology plan that promotes communication interoperability, and information sharing, with core business functions."

The DOJ also gave many awards to teams of lawyers and others who handled complex investigations and prosecutions of terrorists, drug dealers, criminal gangs, and assorted other bad guys. In addition, the DOJ gave an award titled the "John Marshall Award for Trial of Litigation" to the team that handled the case McConnell v. Federal Election Commission.

The case was a constitutional challenge to the McCain Feingold political campaign regulation bill. The name plaintiff was Sen. Mitch McConnell (R-KY).

Sen. McConnell is also a member of the Senate Appropriation Committee, and its Subcommittee on Commerce, Justice, State and the Judiciary. That is, he is involved in writing the DOJ's annual appropriation.

The House and Senate will not meet from July 26 through September 6.

The Democratic National Convention will be held in Boston, Massachusetts on July 26 through July 30.

9:00 AM - 4:30 PM. The Federal Communications Commission's (FCC) Media Bureau will sponsor a symposium titled "A La Carte MVPD Pricing". Location: FCC, 445 12th Street, SW, Room TW-C305 (Commission Meeting Room).

9:00 AM - 4:30 PM. The National Institute of Standards and Technology's (NIST) Judges Panel of the Malcolm Baldrige National Quality Award will hold a partially closed meeting. See, notice in the Federal Register, June 28, 2004, Vol. 69, No. 123, at Pages 36063 - 36064. Location: 222, Red Training Room, Gaithersburg, MD.

Extended deadline to submit comments to the Federal Communications Commission (FCC) regarding its proceeding titled "In the Matter of Review of the Commission's Broadcast and Cable Equal Employment Opportunity Rules and Policies". This is MM Docket No. 98-204. See, notice of extension [PDF].

9:30 AM - 1:00 PM. The Federal Communications Commission's (FCC) Internet Policy Working Group (IPWG) will host an event that it describes as "a roundtable discussion to address international issues associated with the migration of communications services and applications to IP-based technologies". See, FCC notice [PDF]. Location: FCC, 445 12th Street, SW, Commission Meeting Room.

Extended deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Public Notice (DA 04-1454) regarding a la carte and themed programming and pricing options for programming distribution on cable TV and direct broadcast satellite systems. This is MB Docket No. 04-207. See, notice of extension [PDF].

Deadline to submit applications to the Department of Commerce's (DOC) Technology Administration (TA) to join the TA's business development mission to Northern Ireland and the Republic of Ireland. This delegation will include U.S. based senior executives representing the information and communications technology sector. See, notice in the Federal Register, May 26, 2004, Vol. 69, No. 102, at Pages 29928 - 29930.

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).

EXTENDED TO OCTOBER 8. Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its public notice (DA 04-1690) requesting public comments on constitutionally permissible ways for the FCC to identify and eliminate market entry barriers for small telecommunications businesses and to further opportunities in the allocation of spectrum-based services for small businesses and businesses owned by women and minorities. See, notice in the Federal Register, June 22, 2004, Vol. 69, No. 119, at Pages 34672 - 34673. See also, notice of extension [PDF].

Deadline to submit comments to the Federal Communications Commission (FCC) in response to its notice of proposed rulemaking (NPRM) regarding the process for designation of eligible telecommunications carriers (ETCs) and the FCC's rules regarding high-cost universal service support. This NPRM is FCC 04-127 in Docket No. 96-45. See, notice in the Federal Register, July 7, 2004, Vol. 69, No. 129, at Pages 40839 - 40843.

Deadline to submit comments to the Federal Communications Commission (FCC) in response to its notice of proposed rulemaking (NPRM) regarding the rechannelization of portions of the 17.7-19.7 GHz band. This NPRM is FCC 04-77 in WT Docket No. 04-143. See, notice in the Federal Register, July 7, 2004, Vol. 69, No. 129, at Pages 40843 - 40850.

Deadline to submit comments to the Office of the U.S. Trade Representative (USTR) regarding its Special 301 out of cycle review of Israel and other nations. Section 182 of the Trade Act of 1974, which is codified at 19 U.S.C. § 2242, requires the USTR to identify countries that deny adequate and effective protection of intellectual property rights or deny fair and equitable market access to U.S. persons who rely on intellectual property protection. This is also referred to as the Special 301 provision. See, notice in the Federal Register, July 13, 2004, Vol. 69, No. 133, at Pages 42077-42078.

7/28. Anne Chasser announced that she will leave the U.S. Patent and Trademark Office (USPTO) on September 1, 2004. She is the Commissioner for Trademarks. She went to work at the USPTO as special advisor in September 1999. She was confirmed by the U.S. Senate as Assistant Commissioner for Trademarks in November 1999. In March 2000 she was appointed Commissioner for Trademarks. Before working at the USPTO she was Director of Trademarks and Licensing Services at Ohio State University. See, USPTO release and biography.

Before former President Clinton nominated her to be Assistant Commissioner for Trademarks, Chasser (at right) had testified before the Senate Judiciary Committee and House Judiciary Committee's Subcommittee on Courts and Intellectual Property, in her capacity as President of the International Trademark Association, urging the Congress to pass legislation curbing the practice of cyber squatting. The 106th Congress passed the Anticybersquatting Consumer Protection Act (ACPA), which is now codified at 15 U.S.C. § 1125(d). See, testimony of July 22, 1999 and testimony of July 28, 1999.

During her tenure, the USPTO expanded its telework program for trademark examiners, and its Trademark Electronic Application System (TEAS).

7/28. The U.S. Court of Appeals (3rdCir) issued its opinion [PDF] in Lolillard v. Bison Food, a case regarding the availability of ex parte orders from the U.S. District Court directing the seizure from retailers of allegedly counterfeit goods under the Trademark Counterfeiting Act of 1984, which is codified in relevant part at 15 U.S.C. § 1116(d). The District Court refused to issue ex parte seizure orders. The appeals Court affirmed. This case is Lolillard Tobacco Company v. Bison Food Corp., et al., App. Ct. No. 03-3151, and consolidated cases, appeals from the U.S. District Court for the District of New Jersey.

7/28. The U.S. Court of Appeals (9thCir) issued its opinion [11 pages in PDF] in Cellular 101 v. Channel Communications, a Chapter 11 bankruptcy case filed by Cellular 101. At issue in this appeal is Channel Communications' administrative expense claim, filed pursuant to 11 U.S.C. § 503(b), based upon Cellular 101's agency agreement with Channel Communications and John Price that afforded it the right of first refusal if Price sold his stock or substantially all of Channel Communications' assets. The Bankruptcy Court granted the administrative expense claim. This District Court affirmed. In this opinion, the Appeals Court affirmed. This case is Cellular 101, Inc. v. Channel Communications, Inc. and John Price, U.S. Court of Appeals for the 9th Circuit, App. Ct. No. 02-56772, an appeal from the U.S. District Court for the Central District of California, D.C. No. CV-01-00715-AHS, Judge Alicemarie Stotler presiding. Judge Melvin Brunetti wrote the opinion of the Court of Appeals, in which Judges Betty Fletcher and Harry Pregerson joined.

7/26. The U.S. Court of Appeals (1stCir) issued its opinion in Flynn v. AK Peters, a dispute between a co-author of a second edition of book and her publisher regarding the publisher's accepting revisions from a co-author without her consent, and giving a third person co-authorship credit. The author alleged Lanham Act, contract and state statutory claims. The District Court granted judgment to the publisher. The Appeals Court affirmed. The book is Mobile Robots: Inspiration to Implementation [Amazon]. This case is Anita Flynn v. AK Peter, Ltd., U.S. Court of Appeals for the 1st Circuit, App. Ct. Nos. 03-1676, 03-2294, and 03-2348, appeals from the U.S. District Court for the District of Massachusetts.

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