1/25. The House and Senate of the state of Maine both approved a joint resolution pertaining to the federal REAL ID Act of 2005, a bill that federalizes the state identification document process, and mandates state electronic databases and data sharing.

The bills sets minimum standards for states, penalizes states that do not implement its standards, but nevertheless relies upon states to implement it. Maine is the first state to formally refuse to implement the REAL ID Act.

The resolution states that the "Maine State Legislature refuses to implement the REAL ID Act and thereby protest the treatment by Congress and the President of the states as agents of the federal government".

It further provides that "the Maine State Legislature implores the United States Congress to repeal the REAL ID Act of 2005."

Maine Senate Majority Libby Mitchell, the sponsor of the resolution, stated in a release that "The federal government may be willing to burden us with the high costs of a program that will do nothing to make us safer, but it is our job as state Legislators to protect the people of Maine from just this sort of dangerous federal mandate."

House Majority Leader Hannah Pingree stated in the same release that "The REAL ID Act is not only a massive unfunded federal mandate, but it also puts Maine people at increased risk ... We cannot be spending millions of state dollars on an initiative that does more harm to our state than good."

For a more detailed and analytical criticism of the REAL ID Act, see book [Amazon] titled, "Identity Crisis: How Identification is Overused and Misunderstood", by Jim Harper of the Cato Institute. See especially, Chapter 18, titled "Can Identification Cards Be Fixed".

The original version of HR 418 (109th Congress), the "REAL ID Act of 2005", was introduced by Rep. James Sensenbrenner (R-WI) on January 26, 2005. The House amended and approved one version of HR 418 as a stand alone bill on February 10, 2005.

However, the House also approved it as an appendage to HR 1268 (109th Congress), on May 11, 2005. HR 1268 was an untitled bill "Making emergency supplemental appropriations for the fiscal year ending September 30, 2005, and for other purposes". It was mainly a defense and anti-terrorism appropriations bill, that also included additional funding for the FBI, DEA, and other agencies.

That is, the REAL ID Act, as approved by the House, was attached to a major appropriations bill that most Representatives and Senators would support, in order to obtain approval of the REAL ID Act.

The House approved HR 418, not as a stand alone bill, but, pursuant to HRes 151 (109th), as an appendage to HR 1268 (109th Congress), on May 11, 2005. HRes 151 provided that "In the engrossment of H.R. 1268, the Clerk shall -- (1) add the text of H.R. 418, as passed by the House, as new matter at the end of H.R. 1268 ...". The Senate also approved this bill.

President Bush signed HR 1268 (109th) on May 11, 2005. It is now Public Law 109-13. Hence, the REAL ID Act was enacted as Division B of HR 1268. This Title B contains many provisions. Those related to the federalization of state identification systems are found at Title II of Title B, titled "Improved Security for Drivers' Licenses and Personal Identification Cards. It is Sections 201-207 of Title B.

Section 201 contains definitions. Section 202, titled "Minimum Document Requirements and Issuance Standards for Federal Recognition", contains most of the language that motivated Maine's revolt.

This section sets minimum standards regarding the contents of state identification documents, including machine readability, and issuance standards.

It requires that states maintain electronic databases that include "all data fields printed on drivers' licenses and identification cards issued by the State".

It also requires states to "Employ technology to capture digital images of identity source documents so that the images can be retained in electronic storage in a transferable format". It further requires that states "Provide electronic access to all other States to information contained in the motor vehicle database of the State".

However, states, which are sovereign entities, maintain these identification systems. The Act contains language to compel the states to implement the requirements set forth in the Act. For example, it provides that "a Federal agency may not accept, for any official purpose, a driver's license or identification card issued by a State to any person unless the State is meeting the requirements of this section".

While the REAL ID Act was enacted as part of an appropriations bill, it appropriated no money to reimburse the states for the cost of implementing the standards contained in the Act. That is, it is an unfunded mandate.

1/22. Rep. Joe Barton (R-TX), Rep. Fred Upton (R-MI), and Rep. Denny Hastert (R-IL) introduced HR  608, the "Digital Television Consumer Education Act of 2007", a bill that builds on the "Digital Television Transition and Public Safety Act of 2005".

Rep. Barton stated in a release that "For people who get their TV programs over the air instead of by cable or satellite, the legislation created a converter-box program that can help transform the new digital signals to the analog ones that older television sets recognize."

"Some provisions in that good bill were designed to educate consumers about the DTV transition and the converter-box program. Regrettably, those provisions were stripped out and left behind because of Senate procedural rules." Rep. Barton added that "the bill we introduce today reasserts the necessary public education provisions that were left out last year."

The "Digital Television Transition and Public Safety Act of 2005" was enacted as Title III of S 1932 (109th Congress), the "Deficit Reduction Act of 2005". President Bush signed the bill on February 8, 2006. It is now Public Law No. 109-171. It is codified in 47 U.S.C. § 330. See also, story titled "Congress Enacts DTV Transition Legislation" in TLJ Daily E-Mail Alert No. 1,303, February 3, 2006.

HR 608 would provide that within 45 days of enactment, "(A) any retail distributor that displays for sale or rent any analog-only television sets shall place conspicuously in the vicinity of such television sets a sign containing, in clear and conspicuous print, the consumer alert described in paragraph (2); and (B) any retail distributor that offers for sale or rent such television sets via direct mail, catalog, or electronic means shall prominently display in the vicinity of all advertisements or descriptions of such television sets, in clear and conspicuous print, the consumer alert described in paragraph (2)."

This paragraph (2) requires the following language: "This TV has only an analog broadcast tuner and will require a converter box after February 17, 2009, to receive over-the-air broadcasts with an antenna because of the Nation's transition to digital broadcasting."

The bill would also require all multichannel video programming distributors (MVPD) to include notices regarding the transition with monthly billing statements.

The bill would also require licensed broadcasters to file reports with the Federal Communications Commission (FCC) stating what steps they have taken to inform consumers regarding the DTV transition.

The bill would require the FCC to "establish and maintain a digital television transition public outreach program", maintain a related web site, and establish an advisory committee titled "DTV Working Group".

The bill would also provide that the National Telecommunications and Information Administration (NTIA) "shall establish energy consumption standards applicable to digital-to-analog converter boxes ... in order for such boxes to qualify for purchase with coupons made available under this section."

Finally, the bill would require the FCC and NTIA to prepare reports for the Congress.

This bill was referred to the House Commerce Committee. The three original sponsors are members.

1/18. Gerald Masoudi, a Deputy Assistant Attorney General in the Department of Justice's (DOJ) Antitrust Division, gave a detailed speech titled "Efficiency in Analysis of Antitrust, Standard Setting, and Intellectual Property" in Brussels, Belgium.

He discussed the current state of thinking at the DOJ about the practices of standards development organizations (SDOs) and intellectual property (IP). He said that "The application of antitrust law to certain standard-setting practices, including the use of ex ante licensing regimes by SDOs and certain actions by SDO members, is unsettled" and that "U.S. antitrust agencies are reserving judgment on the many SDO practices that have not come before them."

He addressed reasonable and nondiscriminatory licensing (RAND) commitments and predisclosure, which he said have spawned "unforeseen problems and evasion strategies". However, he devoted much of his speech to ex ante licensing, and in particular, the DOJ's VITA business review letter in October of 2006.

He first discussed the underlying economic rationale for IP protection, and stated that "As a general rule of thumb, antitrust law should not prohibit practices that make standard setting more efficient". He also stated that "Businesses should feel confident that if they have ideas for creative, efficient, and procompetitive ways to structure SDOs, antitrust law will not stand in the way."

He explained hold ups. He said that "If SDO members first do the work of selecting a standard and only then discover that the standard infringes a patent right, the patent owner is said to be in a position to "hold up" the standard: the patent owner, knowing that the SDO has already chosen the technology as its preferred method, may be able to demand a higher royalty than if the negotiation had been conducted before the standard was set. This can inject inefficiency into the process in at least three ways: first, uncertainty; second, delay; and third, under some conditions, an allegedly uneconomical royalty rate."

He then said that there have been three attempts to solve this inefficiency: "reasonable and nondiscriminatory licensing (RAND) commitments; predisclosure; and now, ex ante licensing".

The said that "RAND has been a partial success. The ``nondiscriminatory´´ portion of this approach can provide a way for similarly-situated producers to ensure that they are treated alike, and can prevent a patentee from pursuing a potentially exclusionary strategy of charging higher rates to its horizontal competitors, although disputes may arise over the degree to which any licensee is similarly situated as compared to another."

However, he said that the "reasonable" component of RAND "has proven to be a weaker link". In particular, "The practical enforceability of reasonableness provisions is suspect".

He next discussed predisclosure. He explained that this "requires an entity participating in an SDO to disclose all intellectual property rights that may bear upon the standard, including issued patents and pending patent applications".

He continued that "In practice, there are a number of problems that predisclosure causes or cannot solve, including: underdisclosure, particularly inadvertent nondisclosure when a patentee does not anticipate the direction in which a standards effort will eventually go; overdisclosure, particularly unnecessary disclosure of trade secrets covering technology that ultimately will not be incorporated into the standard; and an unclear remedy for violations".

So, he said, "SDOs are increasingly looking to a third solution, ex ante licensing, which would require all those participating in standard-setting activities within an SDO, before the standard is set, to state the maximum royalty rate and other terms that they would demand if the standard uses their technology."

He said that there is a legal objection to ex ante licensing. That is, it "could be or could facilitate price fixing, and may violate the antitrust laws in one of two ways. First, it could facilitate horizontal sell-side price fixing, by creating a forum in which potential horizontal competitors share prices and other terms. Second, it could facilitate buy-side monopolization, or monopsonization, under which potential licensees may band together to drive licensee fees and other terms to artificially low levels, thereby damaging the incentive to engage in research and development in areas that may be the subject of standards efforts."

He continued that the source of legal concerns are two opinions, Sony Elecs., Inc. v. Soundview Techs., Inc., 157 F. Supp. 2d 180 (D. Conn. 2001), and Golden Bridge Tech., Inc . v. Nokia, Inc., 416 F. Supp. 2d 525 (E.D. Tex. 2006), which he summarized.

He then reviewed prior DOJ statements on ex ante licensing, which are as follows:

• June 3, 2005 speech [15 pages in PDF] by Hewitt Pate, former Assistant Attorney General (AAG) in charge of the Antitrust Division, titled "Competition and Intellectual Property in the U.S.: Licensing Freedom and the Limits of Antitrust", at page 9.
• September 23, 2005, speech [PDF] by FTC Chairman Deborah Majoras titled "Recognizing the Procompetitive Potential of Royalty Discussions in Standard Setting".
• October 30, 2006, business review letter from AAG Thomas Barnett to Robert Skitol, attorney for the VMEbus International Trade Association (VITA). See also, DOJ release and story titled "DOJ Approves VITA Patent Policy" in TLJ Daily E-Mail Alert No. 1479, October 31, 2006.

He stated that the VITA business review letter "is the latest and most specific word from the U.S. enforcement agencies as to intersection of antitrust, IP, licensing, and standard setting law". He cautioned that any attempt to use the ex ante licensing process "as a sham to cover horizontal price fixing would result in per se Sherman Act Section 1 liability". But, "the restrictions put in place by VITA appear to promote efficiency if they are followed and enforced".

He also stated that "One should resist the temptation to treat the latest statement from the Antitrust Division as the only safe way to proceed, or to conclude that if a policy deviates in any of its particulars from one cleared by the Division, it necessarily violates the antitrust laws".

In addition, he said that there is "no affirmative requirement in antitrust law that businesses must create a RAND, disclosure, or ex ante licensing system. Doing nothing remains an option".

Finally, he said that "one reason to encourage different approaches to ex ante licensing is that experimentation and competition between SDOs, as in any corner of the marketplace, is a good thing".

See also, bullet points of presentation by the Federal Trade Commission's (FTC) Alden Abbott.

The House will meet at 2:00 PM. It will consider several non-technology related items under suspension of the rules. Votes will be postponed until 6:30 PM. See, Majority Leader's weekly calendar [PDF].

The Senate will meet at 2:00 PM for morning business. At 3:30 PM it will resume consideration of HR 2, the "Fair Minimum Wage Act of 2007".

9:00 AM. Microsoft will host an event titled "Vista Launch". Location: Lisagor Room, National Press Club, 13th Floor, 529 14th St. NW.

9:00 AM - 3:30 PM. The National Institute of Standards and Technology's (NIST) Advanced Technology Program Advisory Committee will hold a partly closed meeting. See, notice in the Federal Register, January 16, 2007, Vol. 72, No. 9, at Page 1705. Location: NIST, Administration Building, Employees' Lounge, Gaithersburg, MD.

12:00 NOON. The Heritage Foundation will host an event titled "Chinese Anti-Satellite Weapons and American National Security". The speakers will be Sen. Jon Kyl (R-AZ) and Michael Franc (Heritage). See, notice. Location: Heritage, 214 Massachusetts Ave., NE.

Deadline to submit comments to the Federal Bureau of Investigation's (FBI) Electronic Surveillance Technology Section (ESTS) regarding its Communications Assistance for Law Enforcement Act of 1994 (CALEA) related cost recovery process information collection activities. See, notice in the Federal Register, November 29, 2006, Vol. 71, No. 229, at Pages 69146-69147.

Deadline to submit comments to the Federal Communications Commission (FCC) regarding its review of regulations, pursuant to the Regulatory Flexibility Act of 1980, of FCC regulations that become ten years old in 2006, to determine whether such regulations should be changed, amended, or rescinded. See, notice in the Federal Register, November 29, 2006, Vol. 71, No. 229, at Pages 69085-69094. This notice includes a list of relevant regulations.

The House will meet at 10:30 AM for morning hour, and at 12:00 NOON for legislative business. See, Majority Leader's weekly calendar [PDF].

TIME? Day one of a two day closed meeting of the Department of Defense's (DOD) Defense Science Board's (DSB) Task Force on Space Industrial Base [PDF]. See, notice in the Federal Register, January 24, 2007, Vol. 72, No. 15, at Page 3116. Location: Science Applications International Corporation (SAIC), 4001 N. Fairfax Drive, Arlington, VA.

9:00 AM - 12:30 PM. The U.S. Chamber of Commerce (USCC) will host a workshop titled "Social Networking, Viral Campaigns, and Humor: What you Need to Know". This is the second of four workshops in a series titled "Online Strategies for Grassroots Advocacy". See, notice. Location: USCC, 1615 H St., NW.

9:00 AM - 3:30 PM. The National Institute of Standards and Technology's (NIST) Advanced Technology Program Advisory Committee will hold a partially closed meeting. See, notice in the Federal Register, January 16, 2007, Vol. 72, No. 9, at Page 1705. Location: NIST, Administration Building, Employees' Lounge, Gaithersburg, MD.

9:30 AM. The Senate Foreign Relations Committee will hold a hearing on the nomination of John Negroponte to be Deputy Secretary of State. See, notice. Location: Room 216, Hart Building.

10:00 AM. The House Ways and Means Committee will hold a hearing titled "Trade and Globalization". See, notice. Press contact: 202-225-1721. Location: Room 1100, Longworth Building.

12:00 NOON - 2:00 PM. The Center for American Progress (CAP) will host a panel discussion titled "Local Media Diversity Matters to All Americans". The speakers will be Rep. Xavier Becarra (D-CA), Robert Entman (George Washington University), Philip Napoli (Fordham University), Federico Subervi (Texas State University -- San Marcos), and Mark Lloyd (CAP). Lunch will be served at 12:00 NOON. The program will begin at 12:30 PM. See, notice. Location: Room B-340, Rayburn Building, Capitol Hill.

3:00 PM. The House Ways and Means Committee's Subcommittee on Trade will hold its organizational meeting for the 110th Congress. See, notice. Press contact: 202-225-1721. Location: Room 1105, Longworth Building.

The House will meet at 10:00 AM for legislative business. See, Majority Leader's weekly calendar [PDF].

TIME? Day two of a two day closed meeting of the Department of Defense's (DOD) Defense Science Board's (DSB) Task Force on Space Industrial Base [PDF]. See, notice in the Federal Register, January 24, 2007, Vol. 72, No. 15, at Page 3116. Location: Science Applications International Corporation (SAIC), 4001 N. Fairfax Drive, Arlington, VA.

8:30 AM - 4:30 PM. The Center for Democracy and Technology (CDT) will host an event titled "3rd Annual Internet Caucus State of the Net Conference". See, notice and agenda. The basic price is $350. The price for members of the Internet Caucus Advisory Committee is $300. The price for non-profit and academic personnel is $75. The price for "current government employees and credentialed members of the press" is free. Location: Hyatt Regency Hotel, 400 New Jersey Ave., NW.

10:00 AM. The Senate Banking Committee will hold a hearing titled "The Treasury Department’s Report to Congress on International Economic and Exchange Rate Policy (IEERP) and the U.S.-China Strategic Economic Dialogue". The sole witness will be Henry Paulson, Secretary of the Treasury. See, notice. Location: Room 538, Dirksen Building.

10:00 AM. The House Financial Services Committee (HFSC) will hold its organizational meeting for the 110th Congress. See, notice. Press contact: Steve Adamske at 202-225-7141 or Heather Wong at 202-226-3314. Location: Room 2128, Rayburn Building.

10:15 PM. The House Judiciary Committee will hold a hearing titled "Presidential Signing Statements under the Bush Administration: A Threat to Checks and Balances and the Rule of Law?". Location: Room 2147, Rayburn Building.

10:30 AM -12 NOON. The Heritage Foundation will host an event titled "Taiwan Security Looking Forward: Issues and Problems". The speakers will Andrew Nien-dzu Yang (Secretary General, Council for Advanced Policy Studies, Taiwan), James Mulvenon (Center for Intelligence and Analysis, Richard Bush, (Brookings Institute), and Harvey Feldman (Heritage). See, notice. Location: Heritage, 214 Massachusetts Ave., NE.

12:15 - 1:30 PM. The Federal Communications Bar Association's (FCBA) HLS/Emergency Communications Committee will host a brown bag lunch titled "Emergency Alert and Warning and the Warning, Alerts and Response Network (WARN) Act". The speakers will be Christopher McCabe (CTIA), David Webb (Federal Emergency Management Agency), and Lisa Fowlkes (FCC's Public Safety and Homeland Security Bureau). For more information, contact Jennifer Manner at jmanner at msvlp dot com or 703-390-2730. Location: Akin Gump, 1133 New Hampshire Ave., NW.

2:30 PM. The Senate Intelligence Committee will hold a hearing on the nomination of Michael McConnell to be Director of National Intelligence. Location: Room 106, Dirksen Building.

5:00 - 7:00 PM. The Center for Democracy and Technology (CDT) will host an event titled "10th Annual Kickoff Reception & Technology". See, notice. Location: Room 902, Hart Building, Capitol Hill.

6:00 - 9:15 PM. The DC Bar Association will host a continuing legal education (CLE) seminar titled "Harnessing U.S. Trade Policy to Solve International Intellectual Property Rights Problems". The speakers will include Sturgis Sobin (Heller Ehrman), Victoria Espinel (Assistant US Trade Representative for Intellectual Property Rights), Brian Pomper (Chief International Trade Counsel, Senate Finance Committee), and Yang Guohua (Counselor for Intellectual Property, Embassy of China). The price to attend ranges from $90 to $135. For more information, call 202-626-3488. See, notice. Location: DC Bar Conference Center, 1250 H St NW B-1 Level.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Further Notice of Proposed Rulemaking (FNPRM) in its TV white space proceeding. This FNPRM is FCC 06-156 in ET Docket Nos. 04-186 and 02-380. The FCC adopted this item at an October 12, 2006, meeting, and released it on October 18, 2006. See, story titled "FCC Adopts Order and FNPRM Regarding TV White Space" in TLJ Daily E-Mail Alert No. 1,467, October 12, 2006, and notice in the Federal Register, November 17, 2006, Vol. 71, No. 222, at Pages 66897-66905.

EXTENDED FROM JANUARY 5. Extended deadline to submit reply comments to the Federal Communications Commission (FCC) to assist the Wireless Telecommunications Bureau (WTB) in drafting a report on the ability of persons with hearing disabilities to access digital wireless telecommunications. This proceeding is WT Docket No. 06-203. See, original FCC Public Notice [4 pages in PDF] (DA 06-2285) and Public Notice (DA 06-2498) extending deadlines.

The House will not meet due to party retreats. See, Majority Leader's weekly calendar [PDF].

9:00 AM - 4:30 PM. Day one of a two day meeting of the U.S.-China Economic and Security Review Commission. See, notice in the Federal Register, January 17, 2007, Vol. 72, No. 10, at Page 2088. Location: Room 562, Dirksen Building, Capitol Hill.

10:00 AM. The Senate Commerce Committee (SCC) will hold a hearing titled "Assessing the Communications Marketplace: A View from the FCC". See, notice. Location: Room 253, Russell Building.

? 2:30 PM. The Senate Homeland Security and Governmental Affairs Committee's Subcommittee on Oversight of Government Management will hold a hearing "to examine privacy implications of the Federal government's health information technology initiative relating to private health records, focusing on the efforts of Department of Health and Human Services to integrate privacy into the Health Information Technology national infrastructure and Office of Personnel Management's efforts to expand the use of Health Information Technology through the Federal Employees Health Benefits Program and the impact such actions have on Federal employees' health information privacy". Location: Room 342, Dirksen Building.

Deadline to submit additional reply comments to the Federal Communications Commission (FCC) regarding the Missoula Plan, an intercarrier compensation reform plan. See, notice in the Federal Register, January 18, 2007, Vol. 72, No. 11, at Pages 2249-2250. This proceeding is CC Docket No. 01-92.

The House will not meet due to party retreats. See, Majority Leader's weekly calendar [PDF].

9:00 AM - 12:00 NOON. Day two of a two day meeting of the U.S.-China Economic and Security Review Commission. See, notice in the Federal Register, January 17, 2007, Vol. 72, No. 10, at Page 2088. Location: Room 562, Dirksen Building, Capitol Hill.

12:30 PM. Ted Leonsis, Vice Chairman of AOL, will give a speech titled "Web 2.0 and How it is Reshaping Marketing and Traditional Media". Location: Ballroom National Press Club, 13th floor, 529 14th St. NW.

Deadline to submit comments to the Federal Communications Commission (FCC) in response to the recommendations of the FCC's World Radiocommunication Conference Advisory Committee regarding the 2007 World Radiocommunication Conference (WRC-07). See, FCC's Public Notice [45 pages in PDF] (DA 07-26), to which the recommendations are attached. This is IB Docket No. 04-286.

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