7/29. The Federal Communications Commission's (FCC) Office of Engineering and Technology (OET) issued a Public Notice [PDF] requesting comments on Continental Airlines' Petition for a Declaratory Ruling [16 pages in PDF] and supplement [PDF] regarding the Massachusetts Port Authority's (MPA) attempt to regulate and extract revenues from airport WiFi hotspots.

Continental installed a WiFi hotspot in its frequent flyer lounge at the Boston Logan International Airport. It provides WiFi access for free.

The MPA has demanded removal of the antenna. The MPA asserted in a letter to Continental (which is attached to the petition) that there is a "potential threat to public safety caused by Continental’s unauthorized and unlawful wireless communications". The MPA asserts that Continental's service creates an interference problem.

However, the correspondence attached to the petition suggests that the MPA's concern is not with radio frequency interference. Rather, Continental's free service is interfering with the extraction of monopoly rents from WiFi users, most of whom are not Boston area residents.

The MPA does not object to WiFi operation at the airport. It provides WiFi service through a third party vendor. The MPA wants to compel Continental to use its third party vendor's facilities, and to pay its rates, and by implication, pass the costs on to its customers.

Another problem for the MPA is that some airport users have obtained free WiFi access by positioning themselves just outside of Continental's lounge.

The MPA wrote to Continental that it "may make fixed wireless services available in its Clubroom by making arrangements to route its wireless signals over the existing WiFi backbone which has been installed and is operated by AWG, a third party vendor." The MPA states that Continental will be charged "for airline use based on the number of enplanements" or on the "hits".

Continental asserts that the FCC holds exclusive jurisdiction, and that the demands of the MPA are prohibited under the FCC's Over the Air Reception Devices (OTARD) rules.

The MPA also wrote that it "does not concede" that the FCC's OTARD rules are lawful.

Initial comments are due by August 29, 2005. Reply comments are due by September 13, 2005. This public notice is DA 05-2213 in ET Docket No. 05-247.

7/26. Federal Communications Commission (FCC) Chairman Kevin Martin gave a speech in Austin, Texas, at a meeting of the National Association of Regulatory Utility Commissioners (NARUC). He spoke about universal service, intercarrier compensation, regulatory parity, and expanding the CALEA regulatory regime.

Universal Service. Martin stated that "The universal service mechanism is breaking. The method for carriers to contribute into the fund is outdated. It doesn’t adequately account for the increase in bundled service offerings, the migration to wireless and VoIP services, and the shrinking long distance market. Similarly, the way that the funds are distributed is fraught with complexity."

He said that "it is critical that there be a sufficient and sustainable mechanism to collect funds in an efficient manner." He added that "I have urged the Commission to begin assessing contributions primarily based on working telephone numbers rather than interstate revenue." This would entail taxing internet protocol based services that assign subscribers numbers.

Intercarrier Compensation. Martin (at left) stated that "The intercarrier compensation scheme is breaking. The existing scheme is simply unsustainable in a competitive environment characterized by bundles and mobility."

He said that the FCC "must adopt a rational and unified approach that replaces the current patchwork of rules. Any new framework must remove the opportunities for regulatory arbitrage and provide incentives for efficient investment decisions."

He continued that "we must move to a single unitary rate for all the different types of traffic -- wireless, wireline, VoIP, local, long distance, interstate, intrastate. In today’s converging IP world, these distinctions are unsustainable and create opportunities for people to game the system."

Regulatory Parity. He stated that "We also suffer from a market-distorting lack of regulatory certainty in the broadband market. Most prominently, for some time there has been a lack of regulatory parity between telcos and cable in their provision of broadband."

He said that "we should place all broadband providers on equal footing so that they can fairly compete in the marketplace -- not in front of regulators". And, he said that Supreme Court's June 26 opinion [59 pages in PDF] in NCTA v. Brand X "provides us the opportunity to make this happen."

Martin said that "I have already shared with my colleagues a proposal that would give telcos the same deregulatory treatment as cable. It is my strong hope that this order will be adopted as soon as possible so that consumers can reap the benefits of continued infrastructure investment and the increased deployment of broadband services."

CALEA. Martin also discussed extending the Communications Assistance for Law Enforcement Act (CALEA) regulatory regime to internet services. He said that "broadband Internet access providers and VoIP providers cannot escape the ability of law enforcement to conduct legitimate surveillance", and that "law enforcement agencies must have the ability to conduct electronic surveillance over these new technologies."

7/29. The Government Accountability Office (GAO) wrote a letter [9 pages in PDF] to leaders of the House Commerce Committee (HCC) titled "Financial Market Organizations Have Taken Steps to Protect against Electronic Attacks, but Could Take Additional Actions".

The letter was written for the Rep. Joe Barton (R-TX) and Rep. John Dingell (D-MI), the Chairman and ranking Democrats of the HCC, as well as the Chairmen and ranking Democrats on two of the HCC's subcommittees.

The letter states that "Electronic attacks can be the result of individuals (such as hackers) or groups, such terrorist organizations or foreign governments, attempting to gain unauthorized access to a specific organization’s networks or systems or from malicious computer programs or codes, such as viruses or worms, that seek to damage data or deny access to legitimate users." (Parentheses in original.)

The letter then identifies five elements of a sound information security program:

  "Information security policies and procedures that cover all major systems and facilities and outline the duties of those responsible for security,
  Access controls to prevent unauthorized access to networks and information systems,
  Intrusion detection systems that monitor for attempts to gain unauthorized access to networks and information systems,
  Incident response procedures to address electronic attacks or breaches, and
  Testing and assessments of an organization’s vulnerability to attack and audits of its information security practices and controls."

The GAO examined the information security practices of financial market organizations, which it did not identify. It found that "all seven of the selected financial market organizations are taking steps to prevent their operations from being disrupted by electronic attacks. Each of the organizations had implemented the five major elements of a sound information security program. However, we identified actions that each organization could take to further improve their protections against attacks or unauthorized access."

7/22. The U.S. Court of Appeals (DCCir) issued its opinion [17 pages in PDF] in Polygram Holdings v. FTC, denying a petition for review of a Final Order [8 pages in PDF] of the Federal Trade Commission (FTC) that held that music companies illegally agreed to restrict competition for audio and video products featuring three tenors.

For the purposes of this proceeding, the three tenors are José Carreras, Placido Domingo, and Luciano Pavarotti. They sang together at several concerts. Polygram Holdings, Inc., and Warner Communications, Inc., sold recordings of these concerts. They also reached an agreement, with which they substantially complied, to restrict advertising and discounting of certain recordings featuring these the three tenors.

The FTC issued an administrative complaint alleging violation of Section 5 of the FTC Act, which is codified at 15 U.S.C. § 45. Section 5, among other things, prohibits "Unfair methods of competition in or affecting commerce". Warner consented to an order being entered against it. However, Polygram contested the allegations.

The FTC concluded that the analysis under § 5 of the FTC Act is the same in this case as it would be under § 1 of the Sherman Act, which is codified at 15 U.S.C. § 1. The FTC found that the agreement was inherently suspect because such restraints by their nature tend to raise prices and to reduce output. See also, FTC Opinion [PDF].

On September 23, 2004, Polygram, and its affiliates, Decca Music Group Limited, UMG Recordings Inc., and Universal Music & Video Distribution Corp., filed a petition for review with the Court of Appeals.

The Court of Appeals denied the petition for review.

This case is Polygram Holdings, Inc., et al. v. FTC, U.S. Court of Appeals for the District of Columbia, App. Ct. No. 03-1293, a petition for review of a final order of the FTC. Judge Douglas Ginsburg wrote the opinion of the Court, in which Judges Edwards and Rogers joined.

The House will not meet on Monday, August 1 through Monday, September 5. See, House calendar and Republican Whip Notice.

The Senate will not meet on Monday, August 1 through Monday, September 5. See, Senate calendar.

The Supreme Court is between terms. The opening conference of its October 2005 Term will be held on September 26, 2005.

10:00 AM - 12:00 NOON. The Department of State's (DOS) International Telecommunication Advisory Committee (ITAC) will meet to prepare for the ITU-D's meetings of Study Group 1 and Study Group 2, which will take place in September, Geneva, on September 6-9 and 12-15, 2005. See, notice in the Federal Register, July 8, 2005, Vol. 70, No. 130, at Pages 39544 - 39545. Location: Room 2533A, State Department.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Microstrategy v. Business Objects, No. 04-1572. This is a patent infringement case involving relational databases. Location: U.S. Court of Appeals, LaFayette Square, 717 Madison Place, Courtroom 402.

The Federal Communications Commission (FCC) will hold Auction 61, the auction of of ten Automated Maritime Telecommunications System (AMTS) licenses. See, notice in the Federal Register, February 11, 2005, Vol. 70, No. 28, at Pages 7270 - 7274; notice in the Federal Register, May 23, 2005, Vol. 70, No. 98, at Pages 29497 - 29510; and, notice in the Federal Register, June 1, 2005, Vol. 70, No. 104, at Pages 31468 - 31469.

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

9:30 AM - 12:00 NOON. The Heritage Foundation will host an event titled "Challenges Facing the 21st Century U.S. Workforce". The first panel is titled "Technology and Evolving Labor Markets". The speakers will be Diana Furchtgott-Roth (Hudson Institute), Daniel Pink (Wired Magazine), and David Barnes (IBM). The second panel (at 10:30 AM) is titled "Labor Laws -- Ripe for Reform?". The speakers will be Janemarie Mulvey (Employment Policy Foundation), Paula Collins (Texas Instruments), William Conerly (American Institute of Full Employment). The keynote address (at 11:30 AM) will be delivered by Secretary of Labor Elaine Chao. See, notice. Location: Heritage, 214 Massachusetts Ave., NE.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Ultratech, Inc. v. Tamarack Scientific Co., No. 05-1107. The is an appeal from the U.S. District Court (NDCal) in a patent infringement case involving technology for making semiconductors. The District Court case is No. C 03-3235 CRB (JL). Location: U.S. Court of Appeals, LaFayette Square, 717 Madison Place, Courtroom 402.

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.

Deadline to submit reply 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.

1:00 - 4:00 PM. The DC Bar Association will host a continuing legal education (CLE) seminar titled "The USA Patriot Act: A Primer". The speakers will be Sharie Brown (Foley & Lardner) and others. The price to attend ranges from $80-$125. For more information, call 202-626-3488. See, notice. Location: D.C. Bar Conference Center, 1250 H Street NW, B-1 Level.

Deadline to submit comments to the U.S. Patent and Trademark Office (USPTO) regarding its document titled "Green Paper", which describes and evaluates four options to reform restriction practice. The USPTO plans to draft a "White Paper" that includes proposed legislation reforming restriction practice. See, notice in the Federal Register, June 6, 2005, Vol. 70, No. 107, at Pages 32761 - 32762.

Extended 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, original notice in the Federal Register, June 8, 2005, Vol. 70, No. 109, at Pages 33679 - 33687. See also, notice of extension of deadlines, in the Federal Register, July 6, 2005, Vol. 70, No. 128, at Pages 38848 - 38849.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to it notice of proposed rulemaking (NPRM) regarding low power FM rules. The FCC adopted its order and NPRM on March 16, 2005, and released it on March 17, 2005. It is FCC 05-75 in MM Docket No. 99-25. See, notice in the Federal Register, July 7, 2005, Vol. 70, No. 129, at Pages 39217 - 39227.

2:00 - 4:00 PM. The Federal Communications Commission's (FCC) Informal Working Group 3: IMT-2000 and 2.5 GHz Sharing Issues will meet. See, FCC notice [PDF]. Location: FCC, 445 12th Street, SW, 6th Floor South Conference Room (6-B516).

6:00 - 9:15 PM. The DC Bar Association will host a the first part of a continuing legal education (CLE) seminar titled "Software Patent Primer: Acquisition, Exploitation, Enforcement and Defense". The speakers will be Stephen Parker (Novak Druce), Brian Rosenbloom (Rothwell Figg Ernst & Manbeck), David Temeles (Temeles & Temeles), and Martin Zoltick (Rothwell Figg). The price to attend ranges from $95-$170. For more information, call 202-626-3488. See, notice. Location: D.C. Bar Conference Center, 1250 H Street NW, B-1 Level.

8/2. The Progress and Freedom Foundation (PFF) released a paper [22 pages in PDF] titled "Reflections on Intellectual Property and Standards: The Immediate Issue: Should Standards be Own-Able?". The PFF's James DeLong, the author, writes that there are two issues. First, "Should a standard-setting organization (SSO) be willing to embrace a standard that can be implemented only with the use of intellectual property owned by a particular firm, and upon which the firm desires to collect royalties and impose other licensing conditions?" Second, "if an SSO is willing in principle to consider adopting an ``owned´´ standard, should it sometimes make its approval conditional upon the holder of the relevant IP agreeing to forego some of its property rights?" DeLong concludes that "The answers are ``yes,´´ SSOs should be willing to endorse ``owned´´ standards, and ``yes,´´ they should also be willing to make the endorsement conditional on the owner's willingness to renounce some of its property rights."

8/1. The Copyright Office published a notice in the Federal Register regarding a "notice of policy decision" regarding the recordation of documents with the Copyright Office pertaining to copyrights, such as assignments. See, Federal Register: August 1, 2005, Vol. 70, No. 146, Pages 44049 - 44052.

7/25. The National Cable Telecommunications Association (NCTA) released a paper [PDF] titled "Commercial Broadcasters Want a Free Ride at Everyone Else's Expense". It is a criticism of the proposals of the National Association of Broadcasters (NAB) to impose dual carriage and multicast must carry requirements on all cable operators. It states that "the broadcasters hope to commandeer the digital television transition by insisting on government regulations that would expand a cable operator’s ``must-carry´´ requirement to at least six channels per broadcaster -- which in major markets translates into mandatory carriage of over 100 broadcast television channels."

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