2/6. The House Rules Committee adopted HRes 956, a rule for consideration of HR 4137 [LOC | WW], the "College Opportunity and Affordability Act of 2007".

This is a huge bill. A few provisions deal with peer to peer copyright infringement on college campuses. The House is scheduled to consider HR 4137 on Thursday, February 7.

Section 488 of the bill as reported would amend 20 U.S.C. § 1092(a)(1). This subsection of the statute requires educational institutions participating in federal student financial assistance programs "shall carry out information dissemination activities for prospective and enrolled students (including those attending or planning to attend less than full time) regarding the institution and all financial assistance". The statute then enumerates many types of information that must be disseminated.

Section 488 of this bill would add a new category of information titled "Disclosure of Policies and Sanctions Related to Copyright Infringement". This would become Section 485(a)(1)(P) of the statute.

Specifically, the bill would require dissemination of information regarding the following:

"institutional policies and sanctions related to copyright infringement, including--
   (i) an annual disclosure that explicitly informs students that unauthorized distribution of copyrighted material, including unauthorized peer-to-peer file sharing, may subject the students to civil and criminal liabilities;
   (ii) a summary of the penalties for violation of Federal copyright laws;
   (iii) a description of the institution's policies with respect to unauthorized peer-to-peer file sharing, including disciplinary actions that are taken against students who engage in unauthorized distribution of copyrighted materials using the institution's information technology system; and
   (iv) a description of actions that the institution takes to prevent and detect unauthorized distribution of copyrighted material on the institution's information technology system."

Then Section 495 of the bill as reported would add a new section to the student financial assistance statute, to be numbered Section 494, and titled "Campus-Based Digital Theft Prevention".

This new Section 494 would provide that "Each eligible institution participating in any program under this title shall to the extent practicable -- (1) make publicly available to their students and employees, the policies and procedures related to the illegal downloading and distribution of copyrighted materials required to be disclosed under section 485(a)(1)(P); and (2) develop a plan for offering alternatives to illegal downloading or peer-to-peer distribution of intellectual property as well as a plan to explore technology-based deterrents to prevent such illegal activity."

This new Section would also provide for federal grants colleges, universities, and other entities "to develop, implement, operate, improve, and disseminate programs of prevention, education, and cost-effective technological solutions, to reduce and eliminate the illegal downloading and distribution of intellectual property".

These grants would be awarded on a competitive basis. The bill also authorizes unspecified appropriations for five years to fund these grants.

Rep. Steve Cohen (D-TN) offered, but withdrew, an amendment [PDF] titled "Sanctions for section 494 prohibited".

His amendment provided that "No institution of higher education shall be denied or given reduced Federal funding for student loan or other student financial aid programs under this title because of such institution's noncompliance with the requirements of this section or any other requirement contained in this Act that concerns the illegal downloading or distribution of intellectual property."

2/6. The House passed S 781 [LOC | WW], the "Do-Not-Call Registry Fee Extension Act" by voice vote. The Senate passed this bill on December 17, 2007. It is now ready for the signature of President Bush.

S 781 extends the authority of the Federal Trade Commission (FTC) to collect Do-Not-Call Registry fees to fiscal years after FY 2007. For a summary of the bill, see story titled "House to Vote on Do Not Call Registry Fee Extension Act" in TLJ Daily E-Mail Alert No. 1,710, February 4, 2008.

In addition, the Senate passed HR 3541 [LOC | WW], the "Do-Not-Call Improvement Act of 2007", on February 6, 2008, by unanimous consent.

Rep. Mike Doyle (D-PA), Rep. Chip Pickering (R-MS), and Rep. Rick Boucher (D-VA) introduced this bill on September 17, 2007. The House Commerce Committee (HCC) amended and approved it on October 30, 2007. See, story titled "House Commerce Committee Approves Bill to Preclude Expiration of Do Not Call Registrations" in TLJ Daily E-Mail Alert No. 1,666, October 31, 2007. The House passed this bill on December 11, 2007. It is now ready for the President's signature.

HR 3541 provides that "Telephone numbers registered on the national 'do-not-call' registry ... shall not be removed from such registry except as provided for in subsection (b) or upon the request of the individual to whom the telephone number is assigned." Without this legislation, registrations would be removed after five years.

Subsection (b) provides for removal of invalid, disconnected, and reassigned telephone numbers.

Rep. John Dingell (D-MI), the Chairman of the HCC, stated that the House passed its own version of S 781 before the Senate passed its bill, and that "By agreement with the Chairman of the Senate Committee on Commerce, we are sending the later Senate-passed bill to the President."

He added that "as part of the agreement, the Senate today will take up and pass H.R. 3541, legislation also passed by the House on December 11, 2007, to eliminate the automatic removal of telephone numbers from the registry, thus clearing the bill for the President's signature. Current rules provide that telephone numbers be removed from the list after five years, thus requiring consumers to reregister their numbers in order to fend off telemarketing calls."

At 2:00 PM on Thursday, February 7, 2008, Sen. Ted Stevens (R-AK), Sen. Byron Dorgan (D-ND), Rep. Doyle, Rep. Pickering, and others will hold a news conference regarding passage of these bills.

2/4. The Federal Communications Commission (FCC) released a report [pages in PDF] titled "Twelfth Report". This is the FCC's annual report to the Congress on the state of competition Commercial Mobile Radio Services (CMRS) industry. The report concludes that "there is effective competition in the CMRS market".

Moreover, when examining trends in mobile internet access for handsets, laptops and other devices, the report concludes that "competition in mobile telecommunications markets is flourishing".

The report finds that 99.8 percent of the U.S. population is served by at least one CMRS provider. 99 percent of the population is served by at least two providers. 95.5 percent is served by at least three. 89.9 percent is served by at least four.

47 U.S.C. § 332(c)(1)(C) requires the FCC to write an annual report on "competitive market conditions with respect to commercial mobile services", including "an analysis of whether or not there is effective competition". Neither the statute, nor this report, define the term "effective competition".

See also, FCC release [PDF] summarizing this report. This report is FCC 08-28 in WT Docket No. 07-71.

Price Competition. The report finds that "The continued rollout of differentiated pricing plans also indicates a competitive marketplace. In the mobile telephone sector, we observe independent pricing behavior, in the form of continued experimentation with varying pricing levels and structures, for varying service packages, with various handsets and policies on handset pricing. Today all of the nationwide operators, and many smaller operators, offer some version of a national rate pricing plan in which customers can purchase a bucket of minutes to use on a nationwide or nearly nationwide network without incurring roaming or long-distance charges." (Footnote omitted.)

Price Trends. The report states that "Wide variations in the non-price terms and features of wireless service plans make it difficult to characterize the price of mobile telephone service, and consequently it is difficult to identify sources of information that track mobile telephone prices in a comprehensive manner." (Footnote omitted.)

It continues that "there is ample evidence of a sharp decline in mobile telephone prices in the period since the launch of PCS service. During 2006, however, pricing has been relatively stable, due in part to, as one analyst characterized it, ``already very low pricing.´´" (Footnote omitted.)

The report also states that the "average price of a mobile call as measured by an estimate of average revenue per minute in December 2006 was unchanged from the previous year". Finally, it states that prices in the U.S. remain "relatively inexpensive on a per minute basis compared with that in Western Europe and Japan".

Wireline Wireless Competition. The report states that "While exact percentages are difficult to determine, wireless substitution has grown significantly in recent years. Between the end of 2001 and 2006, total RBOC access lines dropped 23 percent, from 161 million to 124 million lines. In 2006 alone, the RBOCs lost almost 7 percent of their wireline access lines, with wireless substitution being a significant reason." (Footnote omitted.)

The report adds that "These trends appear to be due to the relatively low cost, widespread availability, and increased use of wireless service", and notes that a number of analysts have argued that "wireless service is competitive or cheaper than wireline, particularly if one is making a long-distance call or when traveling".

The report also states that "A number of mobile wireless providers offer service plans designed to compete directly with wireline local telephone service".

Finally, the report notes that WiFi hotspots "are playing an increasingly important role as a competitor and supplement to the services offered by the CMRS industry", and that "Several mobile telephone providers have entered the hot spot operation".

And furthermore, the Apple/AT&T iPhone "can connect to any Wi-Fi hot spot for Internet access service", while "over the past year certain mobile operators have begun to use WLANs to augment their CMRS-based voice services with voice connections at Wi-Fi hot spots."

Comments. Steve Largent, head of the CTIA, stated in a release that "As long as regulators recognize our success is based on market forces, not costly government regulations, the industry will operate effectively in this competitive market in order to serve consumers well. Wireless has proven time and time again that market competition is the best regulator for the industry. Let’s allow it to continue working for consumers."

FCC Commissioner Robert McDowell wrote that there is a "great deal of good news" in this report, particularly regarding wireless broadband.

McDowell (at left) continued that "Given the timing of all of these positive developments -- which began sprouting in 2006 and even earlier -- I question the assertion made by some that the government can claim credit for spurring device and application portability. Indeed, certain discussions set forth in this report appear to apply a shiny new gloss on the Commission’s very recent, and as yet untested, open access regulations in the 700 MHz spectrum band. I continue to be concerned that the Commission may have imposed an artificial ceiling that will hamper ongoing market-driven innovation and creativity. I also question the Commission’s unwillingness to admit that the wireless industry is (and has been) responding to consumer demand, not prospective regulatory fiats. In sum, I strongly caution against attempts to “spin” the data contained in this report into an ex post facto justification of regulatory mandates." (Parentheses in original.)

FCC Chairman Kevin Martin wrote that "As I noted when we adopted open network rules for the ongoing 700 MHz spectrum auction, wireless customers should be able to use the wireless device of their choice and download whatever software they want onto it. I continue to believe that more openness -- at the network, device, and application level -- helps foster innovation and enhances consumers' freedom and choice in purchasing wireless service. I am optimistic that these commitments along with the ongoing 700 MHz spectrum auction will ensure an exciting new era in wireless technology for the benefit of all consumers."

FCC Commissioner Deborah Tate wrote that "this report is a testament to how the application of a light regulatory touch to a competitive market has resulted in one of the most innovative and vibrant sectors of the U.S. economy."

FCC Commissioner Michael Copps wrote that he merely concurred in the report because it "still fails to define the term ``effective competition.´´" He also cited "Broad-ranging critiques about the openness of the cell phone market"

HHI and Future Consolidation. The report finds that the "Concentration in the U.S. mobile telephone market, as measured by the Herfindahl-Hirschman Index (``HHI´´), declined from 2706 at the end of 2005 to 2674 at the end of 2006. No single competitor has a dominant share of the market."

Pursuant to the Horizontal Merger Guidelines issued by the Department of Justice's (DOJ) Antitrust Division and the Federal Trade Commission (FTC), a market with an HHI score of over 1800 is considered to be concentrated. See, Chapter 1.5 of these Guidelines.

The Guidelines state that the HHI score is calculated as follows: "For example, a market consisting of four firms with market shares of 30 percent, 30 percent, 20 percent and 20 percent has an HHI of 2600 (302 + 302 + 202 + 202 = 2600). The HHI ranges from l0,000 (in the case of a pure monopoly) to a number approaching zero (in the case of an atomistic market)." (Parentheses in original.)

The Guidelines state that for post merger HHI scores of over 1800, "The Agency regards markets in this region to be highly concentrated. Mergers producing an increase in the HHI of less than 50 points, even in highly concentrated markets post-merger, are unlikely to have adverse competitive consequences and ordinarily require no further analysis. Mergers producing an increase in the HHI of more than 50 points in highly concentrated markets post-merger potentially raise significant competitive concerns".

The FCC report notes that "In interpreting these HHIs, it is worth noting that the specific technological and economic characteristics of an industry are important determinants of the level of market concentration. Of particular importance is the relationship between economies of scale and the potential size of the market. In industries where the scale of output at which a firm can fully exploit scale economies (the minimum efficient scale) is large relative to potential demand, there will be room in the market for only a small number of firms operating at the lowest possible cost."

It adds that "Consolidation and exit of service providers, whether through secondary market transactions or bankruptcy, may affect the structure of the mobile telecommunications market. A reduction in the number of competing service providers due to consolidation or exit may increase the market power of any given service provider, which in turn could lead to higher prices, fewer services, and/or less innovation. However, consolidation does not always result in a negative impact on consumers. Consolidation in the mobile telecommunications market may enable providers to achieve certain economies of scale and increased efficiencies compared to smaller operators." (Footnote omitted.)

The House will meet at 10:00 AM for legislative business. It will consider HR 4137 [LOC | WW], the "College Opportunity and Affordability Act of 2007", subject to a rule. This bill addresses peer to peer infringement on college campuses. See, Rep. Hoyer's calendar [PDF] for week of February 4.

The Senate will convene at 10:30 AM.

8:30 AM - 5:00 PM. The U.S.-China Economic and Security Review Commission will hold a public meeting titled "The Implications of Sovereign Wealth Fund Investment on National Security". See, notice in the Federal Register, January 22, 2008, Vol. 73, No. 14, at Pages 3804-3805. Location: Room 562, Dirksen Building, Capitol Hill.

10:00 AM. The House Judiciary Committee (HJC) will hold a hearing titled "Oversight Hearing of the Department of Justice". See, notice. Location: Room 2141, Rayburn Building.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Gammino v. Southwestern Bell, one of several related patent infringement cases involving an algorithm for blocking international telephone calls. This appeal, App. Ct. No. 2007-1201, is from the U.S. District Court (NDTex), D.C. No. 3:2005cv00850, which entered summary judgment for Southwestern Bell (AT&T). See, 512 F.Supp.2d 626. Location: Courtroom 201, 717 Madison Place, NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Avocent Huntsville v. Aten International, a patent infringement case, App. Ct. No. 2007-1553. This is an appeal from the U.S. District Court (NDAlab). Location: Courtroom 203, 717 Madison Place, NW.

2:00 PM. Sen. Ted Stevens (R-AK), Sen. Byron Dorgan (D-ND), Rep. Mike Doyle (D-PA), Rep. Chip Pickering (R-MS), and others will hold a news conference regarding House and Senate passage of HR 3541 [LOC | WW], the "Do-Not-Call Improvement Act of 2007" and S 781 [LOC | WW], the "Do-Not-Call Registry Fee Extension Act". Location: Senate Radio-TV Gallery, 3rd floor, Capitol Building.

TIME? Day two of a two day closed meeting of the Department of Defense's (DOD) Defense Science Board. The DOD has not disclosed the agenda. See, notice in the Federal Register, January 2, 2008, Vol. 73, No. 1, at Pages 173-174. Location: Pentagon, Arlington, VA.

The House will meet at 10:00 AM for legislative business. See, Rep. Hoyer's calendar [PDF] for week of February 4.

11:00 AM. The House Judiciary Committee's (HJC) Task Force on Antitrust and Competition Policy will hold a hearing titled "Hearing on the State of Competition on the Internet". See, notice. Location: Room 2141, Rayburn Building.

10:00 AM. Deadline for all parties except foreign governments to submit comments to the Office of the U.S. Trade Representative (OUSTR) to assist it in making Special 301 identifications of countries that deny adequate and effective protection of intellectual property rights or deny fair and equitable market access to U.S. persons who rely on intellectual property protection. See, story titled "OUSTR Seeks Special 301 Comments on Countries that Deny Adequate IPR Protection" in TLJ Daily E-Mail Alert No. 1,703, January 22, 2008, and notice in the Federal Register, January 16, 2008, Vol. 73, No. 11, at Pages 2958-2959.

Deadline to submit initial comments to the Copyright Office (CO) in response to its Notice of Inquiry (NOI) regarding the meaning of the Copyright Act's term "cable system", and issues related to the phantom signal phenomenon. See, notice in the Federal Register, December 12, 2007, Vol. 72, No. 238, at Pages 70529-70540, and story titled "Copyright Office Issues Notice of Inquiry Regarding Cable Systems" in TLJ Daily E-Mail Alert No. 1,688, December 13, 2007.

Deadline to submit comments to the Office of the Director of National Intelligence (ODNI) in response to its notice of proposed rulemaking regarding ODNI policies for collecting and maintaining personally identifiable records and processes for administering requests for records under the Privacy Act of 1974, which is codified at 5 U.S.C. § 552a(b). See, notice in the Federal Register, January 2, 2008, Vol. 73, No. 1, at Pages 113-125. These proposed rules allow for the disclosure of information to courts, government agencies, Congress, any Congressional committee or subcommittee, and a consumer reporting agency (in accordance with 31 U.S.C. § 3711(e)). These proposed rules also enumerate numerous exemptions of records systems under the Privacy Act.

Day one of a two day meeting of the Department of Homeland Security's (DHS) Homeland Security Information Network Advisory Committee. See, notice in the Federal Register, January 11, 2008, Vol. 73, No. 8, at Page 2058. Location: Bolger Center, 9600 Newbridge Drive, Potomac, MD.

10:00 AM. The Senate Judiciary Committee (SJC) will hold a hearing on judicial nominations. Sen. Dianne Feinstein (D-CA) will preside. Location: Room 226, Dirksen Building.

1:00 - 4:00 PM. The Architectural and Transportation Barriers Compliance Board's (ATBCB) Telecommunications and Electronic and Information Technology Advisory Committee (TEITAC) will meet by conference call. See, notice in the Federal Register, January 24, 2008, Vol. 73, No. 16, at Page 4132.

6:00 - 8:15 PM. The Federal Communications Bar Association's (FCBA) Diversity Committee will host an event titled "FCC Equal Employment Opportunity (EEO) Rules". This event offers continuing legal education (CLE) credits. The speakers will be Larry Walke (NAB), Lewis Pulley (FCC, Media Bureau, Policy Division), and David Honig (Minority Media and Telecommunications Council). The price to attend ranges from $25 to $135. Location: Wiley Rein, 1776 K St., NW.

9:30 AM. The House Commerce Committee's (HCC) Subcommittee on Telecommunications and the Internet will hold a hearing on DTV transformation preparedness. The hearing will be webcast by the HCC. Location: Room 2123, Rayburn Building.

10:00 AM. The Senate Judiciary Committee will hold a hearing titled "Examining the State Secrets Privilege: Protecting National Security While Preserving Accountability". The witnesses will be Carl Nichols (Deputy Assistant Attorney General, Civil Division), Patricia Wald (former judge), Louis Fisher (Law Library of the Library of Congress), Robert Chesney (Wake Forest University School of Law), and Michael Vatis (Steptoe & Johnson). See, notice. Location: Room 226, Dirksen Building.

Day two of a two day meeting of the Department of Homeland Security's (DHS) Homeland Security Information Network Advisory Committee. See, notice in the Federal Register, January 11, 2008, Vol. 73, No. 8, at Page 2058. Location: Bolger Center, 9600 Newbridge Drive, Potomac, MD.

Deadline to submit initial comments to the Federal Communications Commission (FCC) regarding the Petition for Declaratory Ruling [33 pages in PDF] filed by the Public Knowledge (PK) and other groups on December 11, 2007, pertaining to the regulatory status of text messaging services, including short code based services sent from and received by mobile phones. The PK requests that the FCC declare that these services are governed by the anti-discrimination provisions of Title II of the Communications Act. See, story titled "Verizon Wireless and Net Neutrality Advocates Clash Over Text Messaging" in TLJ Daily E-Mail Alert No. 1,647, September 27, 2007. See also, letter from Verizon Wireless to NARAL dated September 27, 2007, and NARAL's web page titled "NARAL Pro-Choice America Wins Fight over Corporate Censorship". See also, story titled "Public Knowledge Asks FCC to Declare that Blocking and Refusing to Carry Text Messages Violates Title II" in TLJ Daily E-Mail Alert No. 1,686, December 11, 2007. This proceeding is WT Docket No. 08-7. See, notice in the Federal Register, January 28, 2008, Vol. 73, No. 18, at Pages 4866-4867.

8:00 - 9:30 AM. The Northern Virginia Technology Council (NVTC) will host a breakfast program titled "New Directions in Federal Procurement -- Changes in the Legal Terrain for 2008". See, notice. The price to attend ranges from $45 to $85. Location: The Ritz Carlton, 1700 Tysons Blvd., McLean, VA.

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in Rambus Inc v. FTC, App. Ct. No. 07-1086. Judges Henderson, Randolph and Williams will preside. See, FTC brief [90 pages in PDF]. See, FTC's August 2, 2006, opinion [120 pages in PDF] in its administrative proceeding titled "In the Matter of Rambus, Inc.". See also, FTC Docket No. 9302 for hyperlinks to pleadings in this proceeding. And see, story titled "FTC Holds That Rambus Unlawfully Monopolized Markets" in TLJ Daily E-Mail Alert No. 1,427, August 8, 2006, and story titled "FTC Files Administrative Complaint Against Rambus" in TLJ Daily E-Mail Alert No. 455, June 20, 2002.

10:00 AM. The Senate Commerce Committee (SCC) will hold a hearing titled "One Year to the DTV Transition: Consumers, Broadcasters, and Converter Boxes". See, notice. Location: Room 253, Russell Building.

10:00 AM. The House Science Committee will hold a hearing titled "Funding for the America COMPETES Act in the FY2009 Administration Budget Request". The witness will be John Marburger, Director of the Executive Office of the President's (EOP) Office of Science and Technology Policy. Location: Room 2318, Rayburn Building.

10:00 AM. The House Oversight and Government Reform Committee's Subcommittee on Information Policy, Census, and National Archives will hold a hearing titled "Federal IT Security: A Review of H.R. 4791". Location: Room 2154, Rayburn Building.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its two notice of proposed rulemakings (NPRMs) regarding service rules for the Wireless Communications Service (WCS) and for terrestrial repeaters used in conjunction with the Satellite Digital Audio Radio Service (SDARS). These items are FCC 07-215 in WT Docket No. 07-293 and IB Docket No. 95-91. The FCC adopted these items on December 17, 2007, and released them on December 18, 2007. See, notice in the Federal Register, January 15, 2008, Vol. 73, No. 10, at Pages 2437-2440.

2/6. The U.S. Court of Appeals (FedCir) issued a per curium order [4 pages in PDF] in Prism Technologies v. VeriSign, affirming the judgment of the District Court, without an opinion. This patent case is Prism Technologies LLC v. VeriSign, Inc., et al., U.S. Court of Appeals for the Federal Circuit, App. Ct. No. 2007-1315, an appeal from the U.S. District Court for the District of Delaware.

2/5. Federal Communications Commission (FCC) Commissioner Deborah Tate gave a speech [14 pages in PDF] in Washington DC to the Federalist Society in which she addressed many issues, but focused on the FCC's universal service subsidies.

2/5. The Federal Communications Commission (FCC) released an order [4 pages in PDF] in its proceeding titled "In the Matter of Local Number Portability Porting Interval and Validation Requirements: Telephone Number Portability: Embarq Petition for Waiver of Deadline". This order grants "a request from Embarq to waive until September 30, 2008, the deadline to comply with the Commission’s declaratory ruling that the validation process for local number portability (LNP) requests should be based on no more than four fields." It also waives the same deadline for all other affected companies until July 31, 2008. This order is FCC 08-31 in WC Docket No. 07-244 and CC Docket No. 95-116.

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