4/14. CBS filed challenges to certain of the Federal Communications Commission's (FCC) March actions pertaining to broadcasting and indecency. See, story titled "FCC Releases Indecency Orders" in TLJ Daily E-Mail Alert No. 1,332, March 20, 2006.

On March 15, 2006, the FCC released a notice of apparent liability for forfeiture [28 pages in PDF] that finds that CBS Television Network affiliated stations and CBS broadcast an indecent episode of the program titled "Without a Trace". This NAL states that this episode depicted "teenage boys and girls participating in a sexual orgy". The total of these fines is over $3.6 Million. This item is FCC 06-18.

Also on March 15, 2006, the FCC released a forfeiture order [30 pages in PDF] that fines CBS $550,000 in connection with the exposure of the breasts of a singer named Janet Jackson in a broadcast music performance. This order is FCC 06-19.

CBS filed with the FCC an opposition to the NAL and a petition for reconsideration of the forfeiture order.

Tamara Lipper, a spokesman for the FCC, stated in a release that "The episode of CBS's Without A Trace that the Commission found to be indecent depicts a teen orgy as well as a teenage girl straddling (and apparently engaging in intercourse) with one boy while two others kissed her breast. Additionally, in its recent order the Commission again rejected CBS's argument that the broadcast of the Super Bowl XXXVIII halftime show was not indecent. That argument runs counter to Commission precedent and common sense. The Commission however, will review any request for reconsideration." (Parentheses in original.)

4/11. Gerald Masoudi, a Deputy Assistant Attorney General in the Department of Justice's (DOJ) Antitrust Division, gave a speech in Sao Paolo, Brazil. He addressed "why some societies seem to have more innovation". His answer is an appropriately structured intellectual property rights regime.

His speech was consistent with many other speeches in which U.S. government officials, while in other countries, have argued that it is in the best interest of those countries to implement strong IPR regimes. However, Masoudi's speech differed in that he offered a more detailed and theoretical explanation as to why strong IPR regimes benefit the countries that possess them.

He began with some definitions. He asserted that "invention and innovation are different things: innovation -- which involves not just the inventive spark, but also the process of turning an invention into a product and bringing it all the way to market -- requires planning, investment, and execution over time".

He continued that these are "things that can be either encouraged or discouraged by a system of laws and policy." Hence, he argued, that "the puzzle of innovation ... must be answered by observing the ways that rational people respond to differences in laws and policy."

Then, he offered his thesis. He wrote that "there is an emerging consensus that four elements help to create a dynamic economy: first, strong, enforceable intellectual property rights; second, IP licensing freedom; third, an understanding that IP rights are not the same as antitrust market power; and fourth, a system of sound competition law priorities." He then elaborated in detail on each of these four elements.

Masoudi may be right that these four elements create either a "dynamic economy", "invention", and/or "innovation". However, there is not a consensus. In the U.S., some are arguing that some of these four elements inhibit innovation. Moreover, some are arguing that other elements lead to innovation, such as education policies, tax policies, government funding of research, and government support for universities.

Proponents of a hard network neutrality mandate argue that their legislative proposal is essential for innovation.

Some have pointed to cultural, religious and geographical differences as key determinants of innovativeness.

President Bush, and others, have articulated theories based upon freedom. For example, Bush has argued that "the prosperity, and social vitality and technological progress of a people are directly determined by extent of their liberty. Freedom honors and unleashes human creativity -- and creativity determines the strength and wealth of nations. Liberty is both the plan of Heaven for humanity, and the best hope for progress here on Earth." (See, November 18, 2003, speech and TLJ story titled "Bush Says Liberty Creates Innovation Which Creates Wealth".)

Most of Masoudi's speech was devoted to a discussion of his four elements. First, he addressed the element of "predictable, enforceable intellectual property rights". He said that for patents, copyrights, trademarks, and trade secrets rights must be "predictable and enforceable".

He elaborated that "In the world of physical property, enforceability means the right to exclude: for example, the ability to evict a person from your land. In the world of intellectual property, the fundamental right is similar: an enforceable IP right means the right to exclude others from using your intellectual property right at all. Since there is no way to build a fence around an IP right, businesses need the next best thing: quick access to the courts and access to preliminary and permanent injunctions against infringement. For example, in the United States, courts have applied a presumption of irreparable harm that makes the issuance of injunctions the norm rather than the exception. We provide multiple damages and attorneys fees for most forms of ``willful infringement,´´ meaning infringement undertaken in bad faith."

Many of these concepts are now under assault in proposals to reform both patent and copyright law in the U.S.

Masoudi next addressed "licensing freedom". He stated that "The best innovators are not necessarily the best manufacturers, marketers, or retailers. A license can promote efficiency by permitting the IP owner to combine with another firm that is more skilled in these areas."

He added that "recently, consensus has also begun to emerge that firms should be free to refuse to license and should be free to set royalties at whatever rate they choose."

He also stated that "The right to refuse to license has been the subject of some controversy", and reviewed recent cases in the U.S. and E.U.

In addition, he said that "Licensing freedom also means the right to charge whatever royalty the IP owner wishes." Finally, he cautioned against compulsory licensing, except as a remedy in narrow circumstances.

Masoudi next addressed presumption of market power from ownership of IP rights. He said that "While intellectual property grants exclusive rights, these rights are not monopolies in the economic sense: they do not necessarily provide a large share of any ``relevant market´´ in antitrust parlance and they do not necessarily lead to the ability to raise prices in any market. A single patent, for example, may have dozens of close substitutes. The mere presence of an intellectual property right does not permit an antitrust enforcer to skip the crucial steps of market definition and determining market effects."

He added that the U.S. antitrust authorities "have long taken the view that IP rights cannot be presumed to create market power".

Masoudi next addressed his fourth element, "sound competition law priorities". He reiterated the Antitrust Division's often stated principles that price fixing cartels should be the highest priority, while single firm conduct should not be a priority. The EU especially does not share this approach. He argued for an "effects-based approach to antitrust analysis". He did not take up the E.U.'s actions against Microsoft in the prepared text of his speech.

Masoudi also discussed "static and dynamic efficiency". He posited that innovation leads to dynamic efficiency, which is "the key engine of economic growth". He elaborated that "Static efficiency describes the tendency of a marketplace to reduce costs by refining existing products and capabilities", and should be protected by competition policy, but that "dynamic efficiency" is the "greater driver of growth".

He continued that "dynamic efficiency and innovation require a large upfront investment -- as new technologies increasingly do -- the same forces that promote static efficiency can deter dynamic efficiency. If rivals quickly adopt a new innovation and drive production costs and prices to their lowest levels, this can impair the chances that any large, fixed, upfront investment can be recouped." He argued that implementation of the four elements are necessary to give innovators the incentive to invest in innovating.

Masoudi spoke at a conference hosted by the Progress and Freedom Foundation (PFF) and Associação Brasileira da Propriedade Intelectual (ABPI) titled "Intellectual Property in the Digital World-The Importance for Brazilian Development".

4/14. Satish Rishi was named SVP, Finance and Chief Financial Officer at Rambus. See, Rambus release.

4/14. The Government Accountability Office (GAO) released a report [78 pages in PDF] titled "Small Business Innovation Research: Information on Awards Made by NIH and DoD in Fiscal Years 2001 through 2004".

4/14. The Copyright Office announced in its web site an extension of the deadline for submitting comments to the Library of Congress's (LOC) Section 108 Study Group in response to the LOC's notice in the Federal Register regarding, among other topics, expanding the scope of 17 U.S.C. § 108. The previous deadline, announced in the notice in the Federal Register (February 15, 2006, Vol. 71, No. 31, at Pages 7999-8002), was Monday, April 17, 2006. The new deadline is Friday, April 28, 2006.

4/14. A trial jury of the U.S. District Court (DMass) returned a verdict in Ethos Technologies v. Real Networks. The jury found that Real did not infringe 10 patents at issue, and that 7 of the 10 patents are invalid. See, Real release.

4/11. The Federal Communications Commission (FCC) extended the deadlines for submitting initial and reply comments in response to its notice of proposed rulemaking (NPRM) regarding privacy of consumer phone records. See, notice of extension [PDF]. The request for an extension [PDF] was filed by Laura Parsky, a Deputy Assistant Attorney General in the Department of Justice's (DOJ) Criminal Division, and others. Parsky has also worked on the DOJ's efforts to induce the FCC to expand the scope of the CALEA statute to non-covered entities and services. She also testified at a hearing of the House Judiciary Committee's Subcommittee on Crime regarding government seizure of stored telephone calls. See, story titled "House Crime Subcommittee Holds Hearing on § 209 of PATRIOT Act, Stored Communications and VOIP" in TLJ Daily E-Mail Alert No. 1,125, April 29, 2005. The request for extension, submitted on behalf of the DOJ, DHS, DEA, and FBI, does not identify what interest federal law enforcement agencies have in this proceeding. The FCC extended the deadline to submit initial comments from April 14 to April 28. The FCC extended the deadline to submit reply comments from May 15 to May 19. See, notice in the Federal Register (March 15, 2006, Vol. 71, No. 50, at Pages 13317-13323) setting original deadlines. The FCC adopted this NPRM on February 10, 2006, and released the text [34 pages in PDF] on February 14, 2006. See also, story titled "FCC Adopts NPRM Regarding Privacy of Consumer Phone Records" in TLJ Daily E-Mail Alert No. 1,308, February 13, 2006, and story titled "FCC Rulemaking Proceeding on CPNI May Extend to Internet Protocol Services" in TLJ Daily E-Mail alert No. 1,310, February 15, 2006. This NPRM is FCC 06-10 in CC Docket No. 96-115 and RM-11277. For more information, contact Tim Stelzig at the FCC's Wireline Competition Bureau at 202-418-0942, or Laura Parsky at 202-616-3928.

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Notices & Disclaimers
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The House will not meet on Monday, April 10, through Friday, April 21. See, Republican Whip Notice and Whip's calendar.

The Senate will not meet on Monday, April 10, through Friday, April 21. See, 2006 Senate calendar.

12:00 NOON - 1:30 PM. The Federal Communications Bar Association's (FCBA) Diversity Committee will host a brown bag lunch. The topic will be "Impact of Broadband on Telecommunications Relay Service (TRS)". The speakers will be Karen Strauss, Ed Bosson (Texas TRS Administrator), Kelby Brick (National Association of the Deaf), Joe Douglas (NECA), Claude Stout (TDI Executive Director). RSVP to Colin Sandy at 202-682-2496 or csandy at neca dot org. Location: Reed Smith, 1301 K Street, NW, Suite 1100- East Tower 11B.

EXTENDED TO APRIL 28. 5:00 PM. Deadline to submit comments to the Library of Congress's (LOC) Section 108 Study Group in response to the LOC's notice in the Federal Register regarding, among other topics, expanding the scope of 17 U.S.C. § 108. See, notice in the Federal Register, February 15, 2006, Vol. 71, No. 31, at Pages 7999-8002.

9:00 AM. The Federal Communications Commission's (FCC) advisory committee named "Independent Panel Reviewing the Impact of Hurricane Katrina on Communications Networks" will meet. See, notice in the Federal Register, April 3, 2006, Vol. 71, No. 63, at Pages 16578-16579. Location: FCC, Commission Meeting Room, Room TW-C305, 445 12th St., SW.

12:30 - 2:00 PM. The DC Bar Association will host a panel discussion titled "Managing and Protecting Digital Data: Part II -- Getting Paid for Content: Legal Questions in Digital Rights Management (DRM) for Online Distribution". The speakers will include Fritz Attaway (Motion Picture Association of America), David Sohn (Center for Democracy & Technology), and Jack Goodman (Wilmer Hale). The price to attend ranges from $10-$30. For more information, call 202-626-3463. See, notice. Location: D.C. Bar Conference Center, 1250 H Street NW, B-1 Level.

6:00 - 8:00 PM. The DC Bar Association's Computer and Telecommunications Law Section will host a reception titled "Meet FCC Commissioner Deborah Taylor Tate". The price to attend ranges from $10-$15. For more information, call 202-626-3463. See, notice. Location: The Westin Embassy Row Hotel, 2100 Massachusetts Ave., NW.

EXTENDED TO APRIL 25. Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to the request contained in the Twelfth Annual Report on the status of competition in the market for the delivery of video programming for comments on the best methodologies and data for measuring the 70-percent thresholds and, if the thresholds have been met, what action might be warranted to achieve the statutory goals. See, notice of extension [PDF].

10:00 - 11:00 AM. The National Association of Manufacturers (NAM) will host an event at which it will release a paper titled "Intellectual Property for the Technological Age". The author is Richard Epstein (University of Chicago). Epstein, Jerry Jasinowski (NAM) and Michael Ryan (George Washington University Law School) will speak. Coffee and donuts will be served. RSVP to Laura Narvaiz lnarvaiz at nam dot org or Bill Canis at bcanis at nam dot org. Location: NAM, 1331 Pennsylvania Ave., NW, Suite 600 (Enter on F Street between 13th and 14th Streets, NW).

12:00 NOON - 1:30 PM. The DC Bar Association's Intellectual Property Law Section will host a panel discussion titled "Can I Use It?: Fair Use (Part I) -- ``Traditional´´ Notions of Fair Use of Copyrighted Works". The speakers will include Christine Farley (Washington College of Law) and Arnie Lutzker (Lutzker, Lutzker & Settlemeyer). A second event, on June 14, will address fair use in the context of digital works, computer code, and the anti-circumvention provisions of the DMCA. 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.

12:15 - 1:45 PM. The New America Foundation (NAF) will host a program titled "Terror on the Internet: the New Arena, the New Challenges". The speakers will be Gabriel Weimann (Haifa University) and Peter Bergen (NAF). Weimann is the author of "Terror on the Internet: the New Challenges, the New Arena" [Amazon]. See, notice. Location: NAF, 7th Floor, 1630 Connecticut Ave., NW.

1:30 - 3:30 PM. The Federal Communications Commission's (FCC) Advisory Committee for the 2007 World Radiocommunication Conference's (WRC-07 Advisory Committee) Informal Working Group 2: Satellite Services and HAPS will hold a meeting. See, notice [PDF]. Location: Leventhal Senter & Lerman, 7th Floor Conference Room, 2000 K St., NW.

3:15 - 5:00 PM. The American Enterprise Institute (AEI) will host a panel discussion titled "Combatting the Diseases of Poverty: Aid Versus Innovation". The speakers will be Barun Mitra (Liberty Institute), Julian Morris (International Policy Network), Roger Bate (AEI), Nicholas Eberstadt (AEI), Maureen Lewis (Center for Global Development), and Vance Serchuk (AEI). See, notice. Location: AEI, 12th Floor, 1150 11th St., NW.

6:00 - 7:30 PM. The Federal Communications Bar Association (FCBA) will host an event titled "What's Next: Mid-Career Planning, Networking, and Marketing Seminar and Reception". The speaker will be Kathleen Sparrough (Davis and Chapman). See, registration form [PDF]. The price to attend ranges from $10 to $40. Registrations and cancellations are due by 5:00 PM on April 14. Location: Hogan & Hartson, 555 13th Street, NW, 13th Floor West.

Day one of a two day meeting of the Department of Labor's (DOL) Bureau of Labor Statistics' (BLS) Business Research Advisory Council (BRAC). The BLS's vaguely worded agenda in its notice in the Federal Register states that the BRAC's Committee on Productivity and Foreign Labor Statistics will meet at 10:00 AM on April 19 to address "new service industries", "international labor comparisons", and "compensation comparisons", including for China and India. See, Federal Register, March 29, 2006, Vol. 71, No. 60, at Pages 15768-15769. Location: Conference Center of the Postal Square Building, 2 Massachusetts Ave., NE.

9:30 AM. The U.S. International Trade Commission (USITC) will hold a hearing on the probable economic effects of the proposed U.S.-Republic of Korea Free Trade Agreement. See, notice in the Federal Register, February 28, 2006, Vol. 71, No. 39, at Pages 10066-10067. The USITC states that if it receives no applications to appear, it will cancel the hearing. For more information, call the USITC at 202 205-2000. Location: USITC, 500 E Street, SW.

10:00 AM. Securities and Exchange Commission's (SEC) Advisory Committee on Smaller Public Companies will hold a public meeting. See, notice in the Federal Register, April 10, 2006, Vol. 71, No. 68, at Page 18122. Location: SEC, Multi-Purpose Room L006, 100 F Street, NE.

12:00 NOON - 1:30 PM. The Federal Communications Bar Association's (FCBA) Young Lawyers Committee and Diversity Committee will host a brown bag lunch. The topic will be "The Role of Mentoring". The speakers will be Parul Desai (Media Access Project), David Don (Comcast), Linda Oliver (Hogan & Hartson), Peter Shields (Wiley Rein & Fielding), and Riley Temple (Halprin Temple). Questions to the panelists may be submitted in advance to Chris Fedeli at 202-828-9874 or cfedeli at crblaw dot com or Cathy Hilke at 202-719-7418 or chilke at wrf dot com. RSVP to Christy Hammond at 202-719-7365 or chammond at wrf dot com. Location: Wiley Rein & Fielding, Conference Center, 1776 K St., NW.

1:30 - 3:30 PM. The Federal Communications Commission's (FCC) Advisory Committee for the 2007 World Radiocommunication Conference's (WRC-07 Advisory Committee) Informal Working Group 1: Terrestrial and Space Science Services will hold a meeting. See, notice [PDF]. Location: Lockheed Martin Corporation, 1550 Crystal Drive, Suite 300, Arlington, VA.

Day one of a two day closed meeting of the Defense Science Board 2006 Summer Study on Information Management for Net-Centric Operations. See, notice in the Federal Register, April 11, 2006, Vol. 71, No. 69, Page 18292. Location: 3601 Wilson Boulevard, 3rd Floor, Arlington, VA.

10:00 AM - 12:00 NOON. The Federal Communications Commission's (FCC) Advisory Committee for the 2007 World Radiocommunication Conference's (WRC-07 Advisory Committee) Informal Working Group 5: Regulatory Issues will hold a meeting. See, notice. Location: Boeing, 1200 Wilson Boulevard, Arlington, VA.

10:30 AM - 12:00 PM. The American Enterprise Institute (AEI) will host a panel discussion titled "CFIUS Reform: National Security and International Investment". Thomas Donnelly (AEI), Clark Ervin (Aspen Institute), Kristin Forbes (MIT's Sloan School of Management), David Marchick (Covington & Burling), and Phillip Swagel (AWI). See, notice. Press contact: Veronique Rodman at 202-862-4871 or vrodman at aei dot org. Location: 12th floor, 1150 17th St., NW.

12:00 NOON - 2:00 PM. The DC Bar Association will host a panel discussion titled "E-Discovery 2006: New Cases and New Rules". The speakers will include John Facciola (U.S. Magistrate Judge), Jonathan Redgrave (Redgrave Daley Ragan & Wagner), Christopher Jensen (Hudson Legal), Amy Bowser (Mayer Brown Rowe & Maw), Donna Ely (Office of Federal Housing Enterprise Oversight), Douglas Davison (Wilmer Hale). The price to attend ranges from $5-$10. For more information, call 202-626-3463. See, notice. Location: D.C. Bar Conference Center, 1250 H Street NW, B-1 Level.

12:15 PM. The Federal Communications Bar Association (FCBA) will host an event titled "Wireless Luncheon with the 8th Floor Legal Advisors". The price to attend is $15. Registrations and cancellations are due by 5:00 PM on April 18. See, registration form [PDF]. Location: Sidley Austin, 1501 K St., NW.

Day two of a two day closed meeting of the Defense Science Board 2006 Summer Study on Information Management for Net-Centric Operations. See, notice in the Federal Register, April 11, 2006, Vol. 71, No. 69, Page 18292. Location: 3601 Wilson Boulevard, 3rd Floor, Arlington, VA.

Deadline to submit to the Office of the U.S. Trade Representative (USTR) written requests to testify at the USTR's May 3 hearing on the proposed free trade agreement (FTA) between the U.S. and Malaysia. The USTR seeks testimony on "electronic commerce issues", "trade-related intellectual property rights issues", "barriers to trade in services", and other topics. See, notice in the Federal Register, March 22, 2006, Vol. 71, No. 55, at Pages 14558-14559.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its notice of proposed rulemaking (NPRM) [52 pages in PDF] regarding the assessment and collection of regulatory fees for fiscal year 2006. This NPRM is FCC 06-38 in MD Docket No. 06-68. See, notice in the Federal Register, April 6, 2006, Vol. 71, No. 66, at Pages 17410-17433.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to AT&T's April 7 petition for a limited waiver of section 61.42(g) of the FCC's rules so that it may exclude True IP to PSTN (TIPToP) service from any price cap basket in the upcoming 2006 annual access tariff filing. See, FCC notice [PDF].

Deadline to submit initial comments to the Federal Communications Commission (FCC) regarding Verizon's petitions seeking relief from certain dominant carrier regulations for in-region, interexchange services that would otherwise apply to Verizon’s provision of those services in the former Bell Atlantic region after March 19, 2006, when the requirements of section 272 of the Act sunset with respect to the final three Verizon states. See, FCC notice [PDF]. This is WC Docket No. 06-56.

3:00 - 7:00 PM. The National Science Foundation's (NSF) Advisory Committee for Computer and Information Science and Engineering will meet. See, notice in the Federal Register, April 10, 2006, Vol. 71, No. 68, at Page 18118. Location: 4201 Wilson Blvd., Room 1235, Arlington, VA.

The House will return from its "Spring District Work Period". See, Majority Whip's calendar.

The Senate will return from its spring recess. See, 2006 Senate calendar.

7:30 AM - 3:30 PM. The National Science Foundation's (NSF) Advisory Committee for Computer and Information Science and Engineering will meet. See, notice in the Federal Register, March 10, 2006, Vol. 71, No. 47, at Page 12403, and notice in the Federal Register, April 10, 2006, Vol. 71, No. 68, at Page 18118. Location: 4201 Wilson Blvd., Room 1235, Arlington, VA.

Deadline to submit comments to the U.S. Patent and Trademark Office's (USPTO) regarding its interim rule revising the rules of practice relating to the filing date requirements for ex parte and inter partes reexamination proceedings. See, notice in the Federal Register, February 23, 2006, Vol. 71, No. 36, at Pages 9260-9262.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its second further notice of proposed rulemaking (2ndFNPRM) regarding the obligation of television licensees to provide educational programming for children and the requirement that television licensees protect children from excessive and inappropriate commercial messages. See, text [14 pages in PDF] of this 2ndFNPRM. The FCC adopted this item at its meeting of March 17, 2006. See, notice in the Federal Register, March 27, 2006, Vol. 71, No. 58, at Pages 15145-15147; and story titled "FCC Adopts Further NPRM Re Children's Programming Obligations" in TLJ Daily E-Mail Alert No. 1,332, March 20, 2006. This item is FCC 06-33 in MM Docket No. 00-167.

5:00 PM. Deadline to submit applications to the National Institute of Standards and Technology's (NIST) Electron and Optical Physics Division for financial assistance for FY 2006 by the Center for Nanoscale Science and Technology (CNST) Financial Assistance Program. See, notice in the Federal Register, March 31, 2006, Vol. 71, No. 62, at Pages 16285-16288.