7/6. The Public Knowledge (PK) released a paper [16 PDF] titled "Principles for an Open Broadband Future". See also, PK's executive summary. The argument of the paper is that in many areas, "government policies may be required to open markets".

The PK is a Washington DC based interest group that has primarily focused on advocating the weakening of intellectual property rights. However, this paper has almost nothing to do with intellectual property. Rather, this paper contains the PK's proposals for revising the Communications Act. It recommends government planning and a wide range of new government regulation of internet protocol (IP) based services at both the federal and state level.

Government Provision of Broadband Service. The paper states that currently, "there is no guarantee that municipalities have the right to deploy broadband services for their consumers". It states that "at least 15 states have adopted laws banning or limiting these municipal networks".

Hence, the PK paper argues that "One approach Congress should strongly consider is to guarantee the right of municipalities to provide their own broadband services." It adds that "Congress should preempt these state laws and permit municipalities to serve the needs of their local communities."

For a discussion of the pro and cons of government entry in the broadband services market, see story titled "US Chamber Hosts Panel on Municipal Broadband" in TLJ Daily E-Mail Alert No. 1,160, June 23, 2005.

Federal and Local Franchising of Video Services. The paper also addresses franchising of video services. However, it lacks clarity. First, it proposes that the Congress codify "a national franchise for new entrants into broadband video services". Currently, cable service providers must obtain local franchises. New entrants, particularly phone companies, do not want to subjected to the same franchising requirement. The paper states that "Those seeking to compete in the provision of broadband video will be severely delayed if they must seek franchises from 10,000+ local authorities throughout the country."

However, the paper goes on to state that these local government must still be able to collect franchise fees from video service providers. It further states that "Congress should be cognizant of the important role of local authorities in the provision of multi-channel video services, including, but not limited to, ensuring universal access, promoting competition and community media, and protecting public safety."

Network Neutrality. The PK paper also contains several proposals that might be categorized as network neutrality, or network freedom, principles.

It argues that "Consumers must have the right to attach to the broadband network any equipment that does not harm the operation of the network."

The paper expresses the concern that "broadband companies could design their broadband networks in proprietary ways to favor the network owners’ equipment and prevent access by the equipment sold by non-partner companies."

It also argues that people should be allowed to use any applications that run on the network.

These provisions are similar to some of the principles advanced by former FCC Chairman Michael Powell, law professor Timothy Wu, and others. However, Powell identified these as "network freedoms". He did not advocate that the government mandate these principles.

That is, on February 8, 2004 Powell gave a speech [PDF] titled "Preserving Internet Freedom: Guiding Principles for the Industry", in which he discussed his concept of "network freedom". See, story titled "Powell Opposes Regulations to Impose Broadband Network Neutrality" in TLJ Daily E-Mail Alert No. 833, February 10, 2004.

Powell argued in that speech for a concept that he called "Net Freedom" -- the concept that consumers should be able to use their broadband connections to "use the content, applications and devices they want", without restrictions imposed by their broadband service providers. He also argued that at this time "the case for government imposed regulations regarding the use or provision of broadband content, applications and devices is unconvincing and speculative".

Also, on October 19, 2004 Powell gave a speech [5 pages in PDF] at the Voice on the Net Conference in Boston, Massachusetts in which he enumerated four internet freedoms. See, story titled "Powell Discusses VOIP Regulation" in TLJ Daily E-Mail Alert No. 1,000, October 20, 2004.

The PK paper also raises a series of concerns that are currently mostly hypothetical. "If network owners are allowed to discriminate in any manner against certain traffic, applications or networks, the customer’s experience of the Internet could be severely curtailed. For example, a broadband network provider might block consumers from using their broadband connection to access a virtual private network (VPN) allowing them to work from home. A broadband network provider might only allow users to purchase products online using its affiliated credit card. A network owner might contract with a web site portal to give that portal preferential access or intentionally give slower speed connections to web sites owned by its competitors. Or it could make the user experience of competitor websites more unpleasant by embedding extra pop-up ads or other distractions in those websites."

The paper also expresses concern that cable companies may block or degrade video over internet protocol service running over their cable networks.

The FCC did recently order a broadband service provider to stop blocking voice over IP traffic. See, story titled "FCC Stops Broadband Provider From Blocking VOIP Traffic" in TLJ Daily E-Mail Alert No. 1,089, March 7, 2005. This proceeding is titled "In the Matter of Madison River Communications, LLC and affiliated companies". This order is DA 05-543 in File No. EB-05-IH-0110.

Interconnection. The PK paper states that "Every broadband network should be able to interconnect with every other broadband network."

The paper later states that this requirement should apply to "all public networks" and "all broadband networks that make service available to the public". (Emphasis in original.)

Currently, telecommunications operates under a statutory interconnection requirement. See, 47 U.S.C. §§ 251. The internet does not. The operators of the various networks that comprise the internet have interconnected through privately negotiated agreements. The PK paper proposes to extend a telecommunications style interconnection regulatory regime upon internet protocol networks.

Also, when the government imposes an interconnection requirement, this also entails regulatory proceedings involving interconnection in which the regulator sets the terms and prices of interconnection. That is, an interconnection mandate implies government price regulation.

Retail Price Regulation. The PK paper states that "Broadband service must be priced at affordable levels". The paper states that government should ensure this, but is not specific as to what mechanisms should be used. It suggests as possibilities extension of universal service style taxation and cross subsidization, and "subsidies or tax credits". It also suggests that "broadband prices could be reduced to below-cost levels by regulation".

Spectrum Management. In one area the PK paper makes tentative and limited proposals of a deregulatory nature -- spectrum management. While the paper contains nothing regarding increasing property rights in spectrum, and free markets for spectrum rights, it does argue for modifying the "command and control" model of spectrum regulation. It argues that new technologies, including smart radio, warrant both more spectrum sharing, and more flexible use of spectrum.

The paper also proposes that "Unlicensed services should have the benefit of a presumption that they be authorized in any spectrum band as long as they do not cause interference with existing licensees."

And finally, the PK paper states that the Congress should impose all of this new regulation with "as light a regulatory touch as possible".

7/6. The U.S. Court of Appeals (9thCir) issued its opinion [31 pages in PDF] in Verizon v. Peevey, holding that Verizon's challenge to California's interim rates for access to UNEs is ripe for review. The District Court must now decide whether or not the interim rates order must be overturned.

The Court of Appeals held that, when a state public utilities commission (PUC), acting pursuant to 47 U.S.C. §§ 251 and § 252, sets interim rates for access to an incumbent local exchange carrier's (ILEC) network by competitive local exchange carriers (CLECs), and the ILEC has cognizable claims which cannot and will not be compensated by a later adjustment, or true-up, then the ILEC's judicial challenge to the PUC's interim rates is ripe for judicial review.

The Public Utilities Commission of California issued an interim rate order governing the rates that Verizon California may charge for access to unbundled network elements (UNEs).

Verizon California, an ILEC, filed a complaint in U.S. District Court (NDCal) against Michael Peevey, and the other members of the California PUC alleging that the interim rate order is arbitrary and capricious, and contrary to the Communications Act, among other claims.

AT&T Communications of California, MCI Worldcom, and MCIMetro Access Transmission Services intervened.

The District Court denied Verizon's motion for summary judgment, and dismissed the claims, without reaching the merits of the claims, on the grounds that they are not ripe for judicial review.

The Court of Appeals vacated, and remanded, with instructions to proceed to rule on the merits of the claims.

This case is Verizon California v. Michael Peevey, et al., U.S. Court of Appeals for the 9th Circuit, App. Ct. No. 04-15155, an appeal from the U.S. District Court for the Northern District of California, D.C. No. CV-03-02838-THE, Judge Thelton Henderson presiding. Judge John Noonan wrote the opinion of the Court of Appeals, in which Judge Robert Jones joined. Judge Carlos Bea wrote a concurring opinion.

7/6. The U.S. Court of Appeals (7thCir) issued its opinion [18 pages in PDF] in Dreamscape Design v. Affinity Network, holding that federal law preempts state law claims of fraud and breach of contract that were related to rates for long distance telephone service.

Dreamscape Design, Inc. is a class action plaintiff. It filed a complaint in state court in Illinois against Affinity Network, Inc., an interexchange carrier, alleging, among other things, that it violated the Illinois Consumer Fraud Act (ICFA) by making misrepresentations about its rates for long distance telephone service.

Affinity removed the action to the U.S. District Court (CDIll), asserting that the state law claims are preempted by the Communications Act, and in particular, by the ancient filed rate doctrine. Hence, Affinity argued that there is federal question jurisdiction.

The District Court held that most of the claims are preempted by federal law. It also granted Affinity’s motion to compel arbitration in accordance with a clause in Affinity’s tariff mandating arbitration of disputes. The arbitrator dismissed the claims, but with leave to amend the complaint. Dreamscape filed an amended complaint. The Court dismissed, pursuant to Boomer v. AT&T Corp., 309 F.3d 404 (7th Cir. 2002). See, story titled "7th Circuit Upholds Mandatory Arbitration Clause in AT&T Consumer Contract" in TLJ Daily E-Mail Alert No. 531, October 21, 2002.

The Court of Appeals affirmed. It reasoned that "Although it may be tempting to view a filed tariff as simply another contract enforceable under state law, this court and others have recognized that tariffs are something more -- at least the equivalent of federal regulations or law -- so suits to challenge or invalidate tariffs arise under federal law."

"Under the filed tariff doctrine, courts may not award relief (whether in the form of damages or restitution) that would have the effect of imposing any rate other than that reflected in the filed tariff." The Court added that "This is so even if a carrier intentionally misrepresents its rate and a customer relies on the misrepresentation."

"The mandatory aspect of the regulatory scheme came to an end following passage of the Telecommunications Act of 1996. ... Pursuant to the act, the FCC issued a series of orders mandating detariffing, and as of July 31, 2001, the tariff requirement was canceled altogether."

The Court continued that "Our opinion in Boomer addressed the preemption question in the wake of detariffing, when the terms of individual contracts or customer service agreements governed long-distance service. In Boomer, the plaintiff, an AT&T customer, brought a putative class-action suit alleging that AT&T overcharged customers in violation of the Illinois Consumer Fraud and Deceptive Business Practices Act. ... Like Affinity, AT&T notified its customers that, after detariffing, all of its rates and conditions would be set forth in a customer service agreement. ... AT&T’s CSA included an arbitration clause, which the plaintiff challenged as unenforceable under Illinois law. The district court agreed with the plaintiff and denied AT&T’s motion to compel arbitration. We reversed the district court’s order, holding that the plaintiff’s state law challenges to the arbitration clause were preempted by federal law."

The Court then reviewed the claims in the complaint in detail, and concluded, pursuant to these principles, that the claims are preempted by federal law. It affirmed the dismissal.

This case is Dreamscape Design, Inc. v. Affinity Network, Inc., U.S. Court of Appeals for the 7th Circuit, App. Ct. No. 04-3035, an appeal from the U.S. District Court for the Central District District of Illinois, D.C. No. 02 C 2235, Judge Michael McCuskey presiding. Judge Kanne wrote the opinion of the Court of Appeals, in which Judges Rovner and Sykes joined.

7/6. Diane Dietz was named Senior Director of Public Affairs at Comcast Corporation. She will direct Comcast's national community investment and outreach initiatives, and oversee The Comcast Foundation. See, Comcast release.

7/1. Mark Feidler was named President and Chief Operating Officer of BellSouth, and was elected to the Board of Directors of BellSouth, effective July 1, 2005. He was the COO. He will report to Duane Ackerman, BellSouth's Ch/CEO.

The House will not meet on Monday, July 4, through Friday, July 8. The House will next meet at 2:00 PM on Monday, July 11. See, Republican Whip Notice.

The Senate will not meet on Monday, July 4, through Friday, July 8. See, Senate calendar.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Ericsson Inc. v. Harris Corp., No. 04-1444. Location: U.S. Court of Appeals, LaFayette Square, 717 Madison Place, Courtroom 201.

10:00 AM - 12:00 NOON. The Department of State's (DOS) International Telecommunication Advisory Committee (ITAC) will meet to prepare for the Americas Regional Preparatory Meeting for the World Telecommunication Development Conference (WTDC-06) in Lima, Peru, from August 9-11, 2005. See, notice in the Federal Register, June 22, 2005, Vol. 70, No. 119, Page 36224. Location: DOS, Room 2533A.

10:30 AM - 12:00 NOON. The Heritage Foundation will host a panel discussion titled "Are Bloggers and Journalists Friends or Enemies?". The speakers will be Ed Morrissey (Captain’s Quarters Blog), Jim Hill (Washington Post Writers Group), and Mark Tapscott (Heritage). See, notice. Location: Heritage, 214 Massachusetts Ave., NE.

12:00 NOON - 2:00 PM. The Progress and Freedom Foundation (PFF) will host a panel discussion titled "MGM v. Grokster: What's Next?". The speakers will be Cary Sherman (President of the Recording Industry Association of America), Sarah Deutsch (General Counsel of Verizon), Gigi Sohn (President of Public Knowledge), James Burger (Dow Lohnes), and Jim DeLong (PFF). See, notice and registration page. Lunch will be served. Location: Room 1537, Longworth Building, Capitol Hill.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its notice of second further proposed rulemaking regarding horizontal and vertical cable ownership limits. The FCC adopted this Second Further NPRM on May 13, 2005, and released it on May 17, 2005. This item is FCC 05-96 in MM Docket No. 92-264. See, notice in the Federal Register, June 8, 2005, Vol. 70, No. 109, at Pages 33679 - 33687.

Deadline to submit comments to the National Institute of Standards and Technology (NIST) regarding its Draft Special Publication 800-79 [49 pages in PDF], titled "Guidelines for the Certification and Accreditation of PIV Card Issuing Organizations". (PIV is Personal Identify Verification.)

The House will return from its Independence Day recess at 2:00 PM. See, Republican Whip Notice.

The Senate will return from its Independence Day recess. See, Senate calendar.

9:45 - 11:30 AM. The DC Bar Association will host a visit to and tour of the Copyright Office. The price to attend ranges from $15-$25. For more information, contact 202-626-3463. See, notice. Location: Copyright Office, Room 401, James Madison Memorial Building, First Street & Independence Avenue, SE.

10:00 AM. The Senate Commerce Committee will hold a hearing titled "Digital Television Transition -- Hearing I". Press contact: Melanie Alvord (Stevens) (202) 224-8456 or Melanie_Alvord at commerce dot senate dot gov, or Andy Davis (Inouye) at 202 224-4546 or Andy_Davis at commerce dot senate dot gov. See, notice. Location: Room 253, Russell Building.

1:30 - 4:30 PM. The Department of Homeland Security's (DHS) National Infrastructure Advisory Council (NIAC) will meet. Location: National Press Club, 529 14th St. NW, 13th Floor.

2:30 PM. The Senate Commerce Committee will hold a hearing titled "Digital Television Transition -- Hearing II". Press contact: Melanie Alvord (Stevens) (202) 224-8456 or Melanie_Alvord at commerce dot senate dot gov, or Andy Davis (Inouye) at 202 224-4546 or Andy_Davis at commerce dot senate dot gov. See, notice. Location: Room 253, Russell Building.

TIME? The State Department's International Telecommunication Advisory Committee's (ITAC) U.S. Study Group B will meet to prepare positions for the next meeting of the ITU-T Study Group 16. See, notice in the Federal Register, June 13, 2005, Vol. 70, No. 112, at Pages 34175 - 34176. Location: Communication Technologies, Inc., 14151 Newbrook Drive, Suite 400, Chantilly, VA.

Day one of a two day conference hosted by the National Institute of Standards and Technology's (NIST), Computer Security Division titled "Federal Computer Security Program Manager's Forum Annual Off-Site Meeting". See, notice. Location: Bethesda North Marriott Hotel and Conference Center, 5701 Marinelli Road, North Bethesda, MD.

Day two of a two day conference hosted by the National Institute of Standards and Technology's (NIST), Computer Security Division titled "Federal Computer Security Program Manager's Forum Annual Off-Site Meeting". See, notice. Location: Bethesda North Marriott Hotel and Conference Center, 5701 Marinelli Road, North Bethesda, MD.

6:00 - 8:30 PM. The Federal Communications Bar Association's (FCBA) Young Lawyers Committee will host an event titled "Happy Hour". For more information, contact Natalie Roisman at natalie dot roisman at fcc dot gov or 202 418-1655, or Jason Friedrich at jason dot friedrich at dbr dot com or 202-354-1340. Location: McCormick & Schmick's, 1652 K Street, NW.

8:30 AM - 5:00 PM. The National Institute of Standards and Technology's (NIST) Visiting Committee on Advanced Technology (VCAT) will hold a partially close meeting. The agenda includes presentations on science and technology priorities of the administration and research and development spending trends in the federal government. See, notice in the Federal Register, May 24, 2005, Vol. 70, No. 99, at Page 29721. Location: Employees Lounge, Administration Building, NIST, Gaithersburg, MD.

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

9:45 - 11:30 AM. The DC Bar Association will host a visit to and tour of the Copyright Office. The price to attend ranges from $15-$25. For more information, contact 202-626-3463. See, notice. Location: Copyright Office, Room 401, James Madison Memorial Building, First Street & Independence Avenue, SE.

10:00 AM - 4:15 PM. The Consumer Electronics Association (CEA) will host an event titled "IPTV Interface Discovery Group". See, notice. Location: Clarendon Ballroom, Arlington, VA.

10:00 AM - 12:00 NOON. The Department of State's (DOS) International Telecommunication Advisory Committee (ITAC) will meet to prepare for the Americas Regional Preparatory Meeting for the World Telecommunication Development Conference (WTDC-06) in Lima, Peru, from August 9-11, 2005. See, notice in the Federal Register, June 22, 2005, Vol. 70, No. 119, Page 36224. Location: DOS, Room 2533A.

12:30 PM. The Federal Communications Bar Association's (FCBA) Mass Media Practice Committee will host a brown bag lunch. The speaker will be Kris Monteith of the Federal Communications Commission's (FCC) Enforcement Bureau. For more information, Ann Bobeck at ABobeck at nab dot org. Location: National Association of Broadcasters (NAB), 1771 N Street, NW.

1:30 - 3:30 PM. The Federal Communications Commission's (FCC) WRC-07 Advisory Committee's Informal Working Group 2 (Satellite Services and HAPS) will meet. See, notice [PDF]. Location: Leventhal Senter & Lerman, 2000 K Street, NW, 7th Floor Conference Room.

TIME? The American Intellectual Property Law Association's (AIPLA) Board or Directors will meet. Location: Arlington, VA.

12:00 NOON - 2:00 PM. The Progress and Freedom Foundation (PFF) will host a panel discussion titled "Brand X v. FCC: What's Next?". See, notice and registration page. Lunch will be served. Location: Room 1537, Longworth Building, Capitol Hill.

Deadline to submit comments to the Antitrust Modernization Commission (AMC) in response to the AMC's request for public comments on numerous issues. First, the AMC seeks comments on enforcement institutions, including dual federal merger enforcement, differential merger enforcement standards, the role of states in enforcing federal antitrust laws outside of the merger area, and the allocation of merger enforcement among states, private plaintiffs. Second, the AMC seeks comments on exclusionary conduct. Third, the AMC seeks comments on immunities, exemptions, and the state action doctrine. Fourth, the AMC seeks comments on merger enforcement, including federal antitrust merger enforcement policy generally, transparency in federal agency merger review, efficiencies in merger analysis, the Hart-Scott-Rodino pre-merger review process. Fifth, the AMC seeks comments on several new economy issues, including antitrust analysis of industries in which innovation, intellectual property, and technological change are central features, and on the reports on patent law by the National Academies and the Federal Trade Commission. Finally, the AMC seeks comments on the role of antitrust in regulated industries. See, notice in the Federal Register: May 19, 2005, Vol. 70, No. 96, at Pages 28902-28907.

Deadline to submit initial comments to the Federal Communications Commission (FCC) regarding a petition for a declaratory ruling that certain provisions of the California Consumer Legal Remedies Act (CLRA), as applied to interstate telephone calls, are not preempted by the Telephone Consumer Protection Act (TCPA). See, notice in the Federal Register, June 15, 2005, Vol. 70, No. 114, at Pages 34725 - 34726. This proceeding is CG Docket No. 02-278.

7/6. The U.S. Court of Appeals (10thCir) issued its opinion in USA v. Foote, a criminal case regarding trafficking in counterfeit trademarks, in violation of the Counterfeit Trademark Act, 18 U.S.C. § 2320, and 18 U.S.C. § 371. This case is U.S.A. v. Jerome Daniel Foote, No. 03-3263, an appeal from the U.S. District Court for the District of Kansas, D.C. No. 00-CR-20091-KHV. Judge Murphy wrote the opinion of the Court of Appeals, in which Judges Seymour and Porfilio joined.

7/5. The World Trade Organization (WTO) released a statement [1 page in PDF] in the Antigua and Barbuda internet gambling proceeding. It states that "On 30 June 2005, pursuant to the request received on 20 June 2005 from Antigua and Barbuda, the Director-General appointed Dr. Claus-Dieter Ehlermann to act as arbitrator under Article 21.3(c) of the Understanding on Rules and Procedures Governing the Settlement of Disputes in the matter United States -– Measures Affecting the Cross-Border Supply of Gambling and Betting Services." See also, story titled "WTO Appellate Body Upholds U.S. Laws Affecting Internet Gambling" in TLJ Daily E-Mail Alert No. 1,111, April 8, 2005; story titled "Allgeier Addresses Trade Agreements and Internet Gambling" in TLJ Daily E-Mail Alert No. 1,118, April 19, 2005; and story titled "WTO Panel Instructs Congress to Amend Wire Act to Legalize Internet Gambling" in TLJ Daily E-Mail Alert 1,016, November 11, 2004.

6/29. Viviane Reding, the EU Commissioner for Information Society and Media, gave a speech [4 pages in PDF] in Brussels, Belgium, titled "i2010 and Digital Convergence as an Engine of Growth and Jobs".

6/28. Peter Mandelson, the EU Commissioner for Trade, gave a speech titled "The Progressive Case for Open Markets". He advocated free trade, and opposed protectionist policies. He also stated that "At the same time we need to focus European spending programmes on the creation of European centres of research excellence and building technology platforms that link in with European companies, and help counter the transatlantic brain drain Europe is suffering." He spoke in New York City to the Council on Foreign Relations.

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