9/26. Xinhua, an arm of the government of the People's Republic of China (PRC), announced a "new regulation on online news services". See, release.

It states that "Services that provide online news stories, that have bulletin board systems (BBS) or have the function of sending short messages containing news contents to individual mobile phones are all subject to the regulation."

The Xinhua announcement further states that "News sites set up by news organizations but publishing not just their own stories, and sites by other organizations featuring news stories must get approval from the State Council Information Office. Sites by news organizations that only carry their own stories should register at the main office or provincial information offices."

It adds that "The regulation also spells out that media attached to the central government or directly under provincial governments are not allowed to provide any stories to other online news sites without approval."

Xinhua's release states that this regulation was issued by the PRC's Ministry of Information Industry (MII) and the PRC State Council's Information Office.

Xinhua also wrote that "Anyone who finds unhealthy online stories can visit http://net.china.cn and report." The PRC government created the net.china.net website in 2004 "for people to report illegal and unhealthy on-line information in a bid to create a better cultural environment for juveniles". See, November 6, 2004 release.

9/23. The Federal Communications Commission (FCC) released the text [3 pages in PDF] of the policy statement that it announced at its August 5, 2005. This statement deals with the FCC's assertion of authority to regulate internet communications and services, and use of the internet, in the context of network neutrality, and for other purposes.

See also, story titled "FCC Adopts a Policy Statement Regarding Network Neutrality" in TLJ Daily E-Mail Alert No. 1,190, August 8, 2005.

The FCC announces in this statement that it is the FCC's policy to guarantee consumers certain things, which are sometimes referred to collectively as "network neutrality". However, the FCC's policy statement does not use the term "network neutrality", or former Chairman Michael Powell's preferred term, "network freedoms". It also contains a principle regarding competition that would not be accurately characterized as a component of "network neutrality" or "network freedom".

Principles Enumerated in the Policy Statement. This statement relates to guaranteeing for consumers the freedom to use their internet connections to access some of the content, use some of the applications, and attach some of the devices, that they choose.

While the FCC delayed almost two months in releasing this document, it is only three pages long. The just released text of the statement of policy substantially repeats the information contained in the FCC's release of August 5, 2005. However, it adds new material.

The August release contained one substantive paragraph. It included a 16 word statement of purpose: "to encourage broadband deployment and preserve and promote the open and interconnected nature of public Internet". It then followed this up with four principles: "(1) consumers are entitled to access the lawful Internet content of their choice; (2) consumers are entitled to run applications and services of their choice, subject to the needs of law enforcement; (3) consumers are entitled to connect their choice of legal devices that do not harm the network; and (4) consumers are entitled to competition among network providers, application and service providers, and content providers."

The just released text breaks this down into four separate paragraphs. Each begins with the same 17 word statement of purpose. (The August release had omitted the word "the" before the words "public Internet".)

The just released text then restates verbatim the four principles, with one change. The August release stated that "consumers are entitled to run applications and services". The just release text added the word "use", so that it reads "consumers are entitled to run applications and use services".

However, the FCC also added a significant qualification to all of these principles. The just released text adds the phrase, "The principles we adopt are subject to reasonable network management." It provides no guidance or insight as to what "reasonable network management" means.

Significance of a Policy Statement. The just released text does little to clarify what a "policy statement" is, or what consequences this policy statement might have. It does state that "we are not adopting rules with this policy statement". It also states that the FCC "will incorporate the above principles into its ongoing policymaking activities".

But, it gives no examples of implementation in ongoing policymaking activities. For example, it provides no hint as to whether or not the FCC would elaborate and impose any or all of these principles as conditions for its approval of license transfers associated with a merger, acquisition or other transaction. Nor does it state whether or not the FCC would apply these principles in response to a petition for a declaratory ruling.

Nor does it state whether or not the FCC contemplates promulgation of enforceable rules, or if it did, in what  proceeding that would be.

The FCC's August release did not identify the FCC proceeding title or proceeding number with which this policy statement is associated. The just released text does. It lists six proceedings, CC Docket No. 02-33 (wireline broadband), CS Docket No. 02-52 (cable broadband), CC Docket No. 01-337 (ILEC broadband), GN Docket No. 00-185, and CC Docket Nos. 95-20 and 98-10. (No. 95-20 is the FCC's long running further remand proceeding regarding Computer III and Bell Operating Companies' (BOC) provision of enhanced services. No. 98-10 is a companion proceeding regarding the same subject.)

Relation to CALEA Proceeding. This policy statement does not reference ET Docket No. 04-295 and RM-10865, which are the numbers for the FCC's open CALEA proceeding.

The FCC also released on September 23, 2005 the text [PDF] of the First Report and Order and Further Notice of Proposed Rule Making regarding the CALEA, which it announced but did not release on August 5, 2005. See also, story titled "FCC Amends CALEA Statute"  in TLJ Daily E-Mail Alert No. 1,191, August 9, 2005.

The policy statement and the CALEA order and NPRM are related. In both items the FCC asserts regulatory authority to regulate for the purpose of fulfilling the "needs of law enforcement". The CALEA statute provides that telecommunications carriers, but not but not information services providers, must design their equipment and networks to facilitate lawfully conducted wiretaps and other intercepts. In the just released order the FCC by administrative fiat reconstructs the meaning of terms in the CALEA and the Communications Act in order to reach the conclusion that facilities based broadband service providers and interconnected VOIP providers are subject to requirements of the CALEA. However, this broad assertion still leaves only carriers and service providers such to FCC CALEA regulation.

There remains the matter of what equipment and devices individual consumers attach to the internet, and what software and services they use. The FCC has not, yet, asserted that individuals are carriers, or are otherwise subject to the CALEA.

Rather, the FCC uses the just released policy statement to assert regulatory authority to limit what devices consumers can attach, and what services they can use. The policy statement states that "consumers are entitled to run applications and services of their choice, subject to the needs of law enforcement".

The policy statement gives no guidance or insight as to how it will implement the principal of "the needs of law enforcement".

Statutory Authority. Finally, the just released policy statement contains the FCC's arguments regarding its statutory authority for this policy statement and the principles stated therein.

The policy statement does not reference the CALEA. Nor, does it reference any statutory section that contains an express grant of regulatory authority to the FCC. Rather, it cites, with great selectivity, statements of Congressional findings and policy. This underscores the apparent lack of legislative authority for the FCC to regulate in the manner outlined in the policy statement. It also suggests a rationale for adopting a policy statement, which is not subject to judicial review, as opposed to a rule, which is.

The policy statement sites two subsections of 47 U.S.C. § 230(a), which merely state, for the Telecommunications Act of 1996, the Congress's findings regarding the nature of the internet. The policy statement omits any reference to 47 U.S.C. § 230(a)(4), which contradicts the argument underlying the policy statement. This subsection provides that "The Internet and other interactive computer services have flourished, to the benefit of all Americans, with a minimum of government regulation".

The policy statement goes on to cite and quote from 47 U.S.C. § 230(b)(1) and (2), which provide that "It is the policy of the United States -- (1) to promote the continued development of the Internet and other interactive computer services and other interactive media; (2) to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation". The policy statement omits the phrase "unfettered by Federal or State regulation". Again, the present policy statement is contrary to this clause.

It is also notable that the Congress incorporated into 47 U.S.C. § 230(b) a statement regarding limiting use of the internet for law enforcement purposes. Subsection (b)(5) provides that "It is the policy of the United States -- (5) to to ensure vigorous enforcement of Federal criminal laws deter and punish trafficking in obscenity, stalking, and harassment by means of computer. That is, it enumerates only enforcement of criminal statutes pertaining to obscenity, stalking and harassment. Contrary to this statement of policy, the FCC now seeks to expand the federal policy to encompass the FBI's goal of preventing the widespread use of secure and private communications by law abiding people, on the basis that it frustrates the FBI's ability to engage in easy and universal surveillance.

Finally, the FCC's policy statement cites Section 706 of the Telecommunications Act of 1996. This is not codified in any section of the U.S. Code. It is a note to 47 U.S.C. § 147. This provision directs the FCC to write annual reports on "the availability of advanced telecommunications capability".

It also contains the following language "The Commission and each State commission with regulatory jurisdiction over telecommunications services shall encourage the deployment on a reasonable and timely basis of advanced telecommunications capability to all Americans (including, in particular, elementary and secondary schools and classrooms) by utilizing, in a manner consistent with the public interest, convenience, and necessity, price cap regulation, regulatory forbearance, measures that promote competition in the local telecommunications market, or other regulating methods that remove barriers to infrastructure investment."

The FCC's policy statement quotes the language regarding "encourage the deployment", but does not quote the language that enumerates the permissible means. Many of the principles contained in the policy statement arguably does not fit within any of the enumerated means.

The policy statement also concludes that the FCC "has a duty to preserve and promote the vibrant and open character of the Internet". There is no citation or footnote that identities what statutory section or court opinion creates this asserted duty, or assigns it to the FCC.

9/23. The Federal Communications Commission (FCC) released the text [59 pages in PDF] of the First Report and Order and Further Notice of Proposed Rule Making regarding the CALEA, which it announced but did not release on August 5, 2005. See also, story titled "FCC Amends CALEA Statute" in TLJ Daily E-Mail Alert No. 1,191, August 9, 2005. This item is FCC 04-187 in ET Docket No. 04-295 and RM-10865.

9/23. The Federal Communications Commission (FCC) released the text [133 pages in PDF] of its Report and Order and Notice of Proposed Rulemaking that classifies wireline broadband internet access services as information services. The FCC adopted and announced this item on August 5, 2005. See also, story titled "FCC Classifies DSL as Information Service" and story titled "Reaction to the FCC's Classification of DSL" in TLJ Daily E-Mail Alert No. 1,190, August 8, 2005. This item is FCC 05-150 in CC Docket Nos. 02-33, 01-337, 95-20, 98-10, and WC Docket Nos. 04-242 and 05-271.

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Notices & Disclaimers
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The House will meet at 12:00 NOON in pro forma session only. See, Republican Whip notice.

The Senate will meet at 1:00 PM. It will begin consideration of the nomination of Judge John Roberts to be the Chief Justice of the United States.

The Supreme Court will hold the opening conference of the October Term 2005. See, calendar [PDF].

12:00 NOON. Xuan-Thao Nguyen (Southern Methodist University School of Law) will deliver a paper titled "Collateralizing Intellectual Property". This event is a part of the George Washington University Law School's (GWULS) intellectual property workshop series. RSVP by Tuesday, September 20, to Rosalie Kouassi at rkouassi at law dot gwu dot edu. Location: GWULS, Faculty Conference Center, 5th Floor Burns, 716 20th St., NW.

12:15 PM. The Federal Communications Bar Association's (FCBA) Cable Practice Committee will host a brown bag lunch. This will be an organizational meeting. For more information, contact Frank Buono at fbuono at willkie dot com. Location: Willkie Farr & Gallagher, 875 K Street, NW.

Deadline to register for the Federal Communications Commission (FCC) pre-auction seminar for the MVDDS Auction (Auction No. 63), to be held on September 28, 2005. See, notice and registration form [PDF].

The House will meet at 12:30 PM for morning hour, and at 2:00 PM for legislative business. Votes will be postponed until 6:30 PM. The House will consider numerous non-technology related items under suspension of the rules. See, Republican Whip notice.

8:30 AM. The Department of Defense (DOD) Advisory Group on Electron Devices (AGED) will hold a closed meeting to review research and development efforts in electronics and photonics. See, notice in the Federal Register, September 19, 2005, Vol. 70, No. 180, at Page 54902. Location: Noesis, Inc., 4100 N. Fairfax Drive, Suite 800, Arlington, VA.

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in American Association of Paging Carriers v. FCC, No. 04-1359. This petition for review pertains to paging carriers and licensing by itinerant mobile radio transmitters on a nationwide, non-coordinated basis. The AAPC challenges the Federal Communications Commission's (FCC) Memorandum Opinion and Order (MOO) adopted September 1, 2004, and released on September 8, 2004. This MOO is FCC 04-212 in WT Docket No. 01-146. See, brief [43 pages in PDF] of the AAPC. Judges Henderson, Garland and Griffith will preside. Location: Prettyman Courthouse, 333 Constitution Ave., NW.

9:30 AM. ElectionMall Technologies Inc. will host an event titled "Online Fraud Solution". For more information, contact Carrie Blewitt 202 448-3129, cblewitt at qorvis dot com. Location: Lisagor Room, National Press Club, 529 14th St. NW, 13th Floor.

10:00 AM. The U.S. District Court (DC) will hold a hearing in Commodity Futures Trading Commission v. McGraw Hill. The CFTC filed an application [5 pages in PDF] to enforce a subpoena. McGraw Hill owns Platts, an energy industry data aggregator and publisher, whose raw data the CFTC seeks by subpoena. Platts obtains from market participants confidential transaction data. It then publishes index price data. McGraw Hill asserts that the raw data is confidential and privileged. If the Court overrides the confidentiality of the publisher, and compels production, it undermines all data aggregators' ability to obtain data under confidence, and hence, deprives the market of a valuable sources of information. See, CFTC's releases and brief [28 pages in PDF] on this matter. Location: Courtroom 21, Prettyman Courthouse, 333 Constitution Ave., NW.

12:15 PM. The Federal Communications Bar Association's (FCBA) Transactional Practice Committee will host a brown bag lunch. This will be an organizational meeting. No RSVP is requested. Location: Suite 1100, Drinker Biddle & Reath, 1500 K Street, NW.

1:00 PM. The House Judiciary Committee's (HJC) Subcommittee on Commercial and Administrative Law will hold a hearing on HR 1956, the "Business Activity Tax Simplification Act of 2005". The meeting will be webcast by the HJC. Press contact: Jeff Lungren or Terry Shawn at 202 225-2492. Location: Room 2141, Rayburn Building.

5:00 PM. The House Rules Committee will meet to adopt a rule for consideration of HR 3402, the "Department of Justice Appropriations Authorization Act, Fiscal Years 2006 through 2009". Location: Room 312, Capitol Building.

6:00 - 9:15 PM. The DC Bar Association will host a continuing legal education (CLE) seminar titled "How to Litigate a Patent Infringement Case". The speakers will be Patrick Coyne and Jerry Ivey (both of Finnegan Henderson). 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.

The House will meet at 9:00 AM for legislative business. It may consider, subject to a rule, HR 3402, the "Department of Justice Appropriations Authorization Act, Fiscal Years 2006 through 2009". See, Republican Whip notice.

9:30 AM. The Senate Judiciary Committee (SJC) may hold a hearing titled "Protecting Copyright and Innovation in a Post-Grokster World". The SJC frequently cancels or postpones hearings without notice. See, notice. Location: Room 226, Dirksen Building.

10:00 AM - 2:00 PM. The Federal Communications Commission (FCC) will hold a pre-auction seminar for the MVDDS Auction (Auction No. 63). See, notice and registration form [PDF]. Location: FCC, 445 12th Street, SW.

12:00 NOON - 2:00 PM. The DC Bar Association will host a seminar titled "Electronic Filing At The Trademark Office". The speaker will be Craig Morris (US Patent and Trademark Office). The price to attend ranges from $20-$40. For more information, call 202 626-3463. See, notice. Location: D.C. Bar Conference Center, 1250 H Street NW, B-1 Level.

12:30 PM. The Federal Communications Bar Association's (FCBA) Professional Responsibility Committee will host a brown bag lunch. This will be an organizational and planning meeting. RSVP to Tina Screven at  escreven at wbklaw dot com. Location: Wilkinson Barker Knauer, 2300 N St., NW, 7th floor large conference room.

1:00 PM. The House Ways and Means Committee will hold a hearing titled "United States Japan Economic and Trade Relations". See, notice. Location: Room 1100, Longworth Building.

2:00 PM. The Senate Judiciary Committee's (SJC) Subcommittee on Antitrust, Competition Policy and Consumer Rights may hold a hearing titled "Video Competition in 2005 – More Consolidation, or New Choices for Consumers?". The SJC frequently cancels or postpones hearings without notice. Sen. Mike DeWine (R-OH) is scheduled to preside. See, notice. Press contact: Blain Rethmeier (Specter) at 202 224-5225, Amanda Flaig (DeWine) at 202 224-7997, or Lynn Becker (Kohl) at 202 224-5653. Location: Room 226, Dirksen Building.

Extended effective date of the Federal Communications Commission's (FCC) VOIP customer lockout order. See, the order contained in the FCC's document titled "Public Notice' [PDF], numbered DA 05-2085, and released on July 26, 2005. It requires, among other things, that every interconnected voice over internet protocol (VOIP) service provider must send every one of its subscribers an FCC mandated statement regarding E911, and that every interconnected VOIP service provider must send to every one of its customers the FCC mandated VOIP warning stickers. This order further requires that every interconnected VOIP service provider obtain acknowledgement from every one of its subscribers, and that it "disconnect, no later than August 30, 2005, all subscribers from whom it has not received such acknowledgements". See, extension order [4 pages in PDF].

The House will meet at 9:00 AM for legislative business. It may consider, subject to a rule, HR 3402, the "Department of Justice Appropriations Authorization Act, Fiscal Years 2006 through 2009". See, Republican Whip notice.

9:30 AM - 5:00 PM. The Antitrust Modernization Commission (AMC) will hold a hearing on the state action doctrine and exclusionary conduct. See, notice in the Federal Register, September 8, 2005, Vol. 70, No. 173, at Page 53331. Location: Federal Trade Commission, Main Building, Room 432, 600 Pennsylvania Ave., NW.

10:00 AM. The House Commerce Committee's (HCC) Subcommittee on Telecommunications and the Internet will hold a hearing titled "Public Safety Communications from 9/11 to Katrina: Critical Public Policy Lessons". The hearing will be webcast by the HCC. See, notice. Press contact: Larry Neal at 202 225-5735. Location: Room 2123, Rayburn Building.

? 10:00 AM. The House Homeland Security Committee's Subcommittee on Economic Security, Infrastructure Protection and Cybersecurity will hold a hearing titled "SCADA and the Terrorist Threat: Protecting the Nation's Critical Control Systems". The witnesses will include Andy Purdy, acting Director of the National Cyber Division. Location: Room 311, Cannon Building.

10:00 AM. The Senate Commerce Committee (SCC) will hold the second of two hearings titled "Communications in Disaster". See, notice. The hearing will be webcast by the SCC. 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. Location: Room 562, Dirksen Building.

10:00 AM. The Senate Banking Committee will meet to consider pending nominations, including those of David McCormick (to be Under Secretary of Commerce for Export Administration), Darryl Jackson (to be Assistant Secretary of Commerce), and Franklin Lavin (to be Under Secretary of Commerce for International Trade). The agenda also includes consideration of Emil Henry to be Assistant Secretary for Financial Institutions at the Department of the Treasury), and the nomination of Patrick O’Brien to be Assistant Secretary for Terrorist Financing at the Department of the Treasury. See, notice. See also, story titled "Bush Nominates McCormick and Jackson for Export Control Office" in TLJ Daily E-Mail Alert No. 1,165, June 30, 2005. Location: Room 538, Dirksen Building.

10:30 AM. The House Ways and Means Committee will hold a hearing titled "Implementation of the United States Bahrain Free Trade Agreement". See, notice. Location: Room 1100, Longworth Building.

2:00 PM. The Senate Judiciary Committee (SJC) may hold a hearing on pending judicial nominations. The SJC frequently cancels of postpones hearings without notice. Press contact: Blain Rethmeier (Specter) at 202 224-5225, David Carle (Leahy) at 202 224-4242 or Tracy Schmaler (Leahy) at 202 224-2154. Location: Room 226, Dirksen Building.

2:00 - 4:00 PM. The Department of States' (DOS) International Telecommunication Advisory Committee (ITAC) will meet to prepare for ITU-T Advisory Group. See, notice in the Federal Register, July 13, 2005, Vol. 70, No. 133, at Page 40414. Location: undisclosed. The DOS states that "Access to these meetings may be arranged by contacting Julian Minard at minardje at state dot gov.

4:00 - 5:30 PM. The Federal Communications Bar Association (FCBA) and other groups will host a panel discussion titled "Making Effective Presentations before Congress and the FCC". The speakers will be Johanna Shelton (Minority Counsel, House Commerce Committee), Lauren Belvin (Legal Advisor to FCC Commissioner Kathleen Abernathy), and Anita Wallgren (Sidley Austin Brown & Wood). The price to attend ranges from $0-15. For more information, and to RSVP, contact Anita Wallgren at 202 736-8468 or awallgren at sidley dot com. Location: Sidley Austin, 1501 K Street NW.

The Public Knowledge will host an awards ceremony and reception. For more information, contact Art Brodsky at 202 518-0020 x103. See, PK release. Location: Sewall-Belmont House, 144 Constitution Ave., NE (next to the Hart Building on Capitol Hill).

? Target adjournment date for the House. See, House calendar.

POSTPONED TO OCTOBER 28. 12:00 NOON. The Federal Communications Bar Association's (FCBA) Legislative Practice and Wireless Telecommunications Practice Committees will host a lunch titled "DTV Transition". The price to attend is $15. Registrations and cancellations are due by 5:00 PM on Tuesday, September 27, 2005. See, registration form [PDF]. Location: Sidley Austin, 1501 K Street, NW., 6th Floor.

Deadline for applications to be received by the National Institute of Standards and Technology (NIST) for Electronics and Electrical Engineering Laboratory (EEEL) Grants. The EEEL covers semiconductors, electronic instrumentation, radio frequency (RF) technology, optoelectronics, magnetics, video, electronic commerce as applied to electronic products and devices, the transmission and distribution of electrical power, national electrical standards, and law enforcement standards. See, notice in the Federal Register, January 5, 2005, Vol. 70, No. 3, at Pages 781 - 789.

Deadline to submit comments to the Antitrust Modernization Commission regarding criminal remedies. See, notice in the Federal Register, August 10, 2005, Vol. 70, No. 153, at Page 46474.

Extended deadline for the National Cable & Telecommunications Association's (NCTA) and Consumer Electronics Association (CEA) to file their first round of status reports with the Federal Communications Commission (FCC) regarding progress in talks regarding the feasibility of a downloadable security solution for integrating navigation and security functionalities in cable set top boxes. See, FCC's Second Report and Order [37 pages in PDF] adopted and released on March 18, 2005. This order is FCC 05-76 in CS Docket No. 97-80. See also, FCC release [PDF] summarizing this order, and story titled "FCC Again Delays Deadline for Integrating Navigation and Security Functionalities in Cable Set Top Boxes" in TLJ Daily E-Mail Alert No. 1,099, March 21, 2005. See also, notice of extensions (DA 05-1930) [2 pages in PDF].

Deadline to submit comments to the Internet Corporation for Assigned Names and Numbers (ICANN) regarding its task force report on the WHOIS database and privacy.

12:00 NOON - 2:00 PM. The Progress & Freedom Foundation (PFF) will host a lunch. The topic will be the future of the radio marketplace. The speakers will be Mark Mays (P/CEO of Clear Channel Communications), Blair Levin (Legg Mason), Paul Gallant (Stanford Washington Research Group), and Christopher Stern (Medley Global Advisers). See, notice and online registration page. Location: Mandarin Oriental Hotel, Gallery Room, 1330 Maryland Ave., SW.

12:15 PM. The Federal Communications Bar Association's (FCBA) IP-Based Communications Committee will host a brown bag lunch titled "Network Neutrality -- What is it, Who Benefits, and Is Regulation Necessary?". The speakers will be Jim Kohlenberger (VON Coalition), Brent Olson (SBC), and Jim Casserly (Willkie Farr & Gallagher). Location: Pillsbury Winthrop Shaw Pittman, 2300 N St., NW.

Deadline to submit comments to the Department of Homeland Security (DHS) regarding its expansion of the US VISIT program to include the utilization of radio frequency identification (RFID) technology. See, notice in the Federal Register, August 4, 2005, Vol. 70, No. 149, at Pages 44934 - 44938.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to the Public Notice [27 pages in PDF] of August 17, 2005, regarding four proposals (which are attached to the Public Notice) submitted to the FCC by members and staff of the FCC's Federal-State Joint Board on Universal Service regarding universal service subsidies for rural carriers. One of these proposals also proposes expanding the services that are taxed to support universal service subsidies. (See, Public Notice, at page 18.)