9/4. Comcast filed with the U.S. Court of Appeals (DCCir) a pleading titled "Petition For Review And, In the Alternative, Notice Of Appeal". It challenges the Federal Communications Commission's (FCC) August 1, 2008, order asserting authority to regulate the network management practices of Comcast and other broadband internet access providers.

The August 1 order pertains to Comcast's management of certain peer to peer traffic. However, the penalties imposed are not significant. See, story titled "FCC Asserts Authority to Regulate Network Management Practices" in TLJ Daily E-Mail Alert No. 1,805, August 4, 2008.

The FCC released the text [67 pages in PDF] of its order on August 20, 2008. It is FCC 08-183 in Docket No. 07-52.

The just filed pleading is a short document that does not disclose legal arguments.

However, David Cohen, EVP of Comcast, stated in a release that "We filed this appeal in order to protect our legal rights and to challenge the basis on which the Commission found that Comcast violated federal policy in the absence of pre-existing legally enforceable standards or rules. We continue to recognize that the Commission has jurisdiction over Internet service providers and may regulate them in appropriate circumstances and in accordance with appropriate procedures. However, we are compelled to appeal because we strongly believe that, in this particular case, the Commission's action was legally inappropriate and its findings were not justified by the record."

He also stated that "Although we are seeking review and reversal of the Commission’s network management order in federal court, we intend to comply fully with the requirements established in that order, which essentially codify the voluntary commitments that we have already announced, and to continue to act in accord with the Commission’s Internet Policy Statement."

"Thus, we intend to make the required filings and disclosures, and we will follow through on our longstanding commitment to transition to protocol-agnostic network congestion management practices by the end of this year", wrote Cohen.

In addition, prior to the FCC's decision, Comcast filed comments with the FCC that address its legal authority to regulate network management practices. See for example, comment [57 pages in PDF] dated July 10, 2008, and comment [8 pages in PDF] dated July 21, 2008.

While Comcast has not yet fully disclosed the grounds for its challenge, the FCC's statutory authority, and the procedure that it followed in the case, could give rise to numerous arguments.

The Congress has enacted no statute that prohibits any network management practices (NMPs) of broadband internet access providers (BIAPs). The Congress has enacted no statute that delegates authority to the FCC to regulate the NMPs of BIAPs. The FCC has promulgated no substantive rules that regulate NMPs of BIAPs. The FCC has promulgated no procedural rules that govern its adjudicatory proceedings pertaining to the NMPs of BIAPs.

The FCC order asserts that it acted pursuant to a November 1, 2007, filing [48 pages in PDF] of the Public Knowledge (PK) and Free Press (FP) captioned "Formal Complaint of Free Press and Public Knowledge Against Comcast Corporation For Secretly Degrading Peer-to-Peer Applications".

The FCC order further asserts that Comcast violated its short policy statement [3 pages in PDF] adopted in August of 2005, and that the FCC has authority to enforce this policy statement pursuant to the concept of Title I ancillary authority.

The order sites the Supreme Court's June 27, 2005, opinion [59 pages in PDF] in NCTA v. Brand X, upholding the FCC's determination that cable broadband internet access service is an information service. See story titled "Supreme Court Rules in Brand X Case" in TLJ Daily E-Mail Alert No. 1,163, June 28, 2005.

The Supreme Court did state that the FCC has Title I ancillary jurisdiction with respect to cable modem service. The Court wrote that the FCC "remains free to impose special regulatory duties on facilities-based ISPs under its Title I ancillary jurisdiction". Although, the issue before the Supreme Court was only whether the FCC could classify cable modem service as a Title I information service.

The 2005 policy statement, which was adopted shortly after the Brand X opinion was issued, states that "To encourage broadband deployment and preserve and promote the open and interconnected nature of the public Internet, consumers are entitled to access the lawful Internet content of their choice ... to run applications and use services of their choice, subject to the needs of law enforcement ... to connect their choice of legal devices that do not harm the network ... to competition among network providers, application and service providers, and content providers." (Footnotes omitted.)

The FCC wrote in its order that Comcast's "discriminatory and arbitrary practice unduly squelches the dynamic benefits of an open and accessible Internet and does not constitute reasonable network management".

Gigi Sohn, head of the PK, stated in a release that "We expected Comcast would appeal the Commission's order. The company opposed it every step of the way, even as they failed to disclose their throttling of Internet traffic. We believe the Commission will prevail and the rights of Internet users will be protected."

Comcast's petition is signed by Helgi Walker of the law firm of Wiley Rein. The other attorneys listed on the petition are Eva Reed (Wiley Rein), David Murray and James Casserly (Willkie Farr & Gallagher), and David Solomon (Wilkinson Barker & Knauer).

8/15. The Progress & Freedom Foundation (PFF) released a paper [15 pages in PDF] titled "``The Law is Whatever the Nobles Do;´´ Undue Process at the FCC".

It is a criticism of the FCC's order [67 pages in PDF] adopted on August 1, 2008, and released on August 20, asserting authority to regulate the network management practices of Comcast and other broadband internet access providers.

The criticism is based not on the technological merits of Comcast's network management practices, but rather on the procedure followed by the FCC. The paper labels it "Kafka-esque".

The author is the PFF's Barbara Esbin.

She quoted from Franz Kafka, who wrote in his short essay titled "The Problem of Our Laws" that "Our laws are not generally known; they are kept secret by the small group of nobles who rule us. We are convinced that these ancient laws are scrupulously administered; nevertheless it is an extremely painful thing to be ruled by laws that one does not know."

She wrote that "The FCC's means of asserting regulatory authority over broadband Internet service providers' network management practices is unprecedented, sweeping in its breadth, and seemingly unconstrained by conventional rules of interpretation and procedures. We should all be concerned, for apparently what we have on our hands is a runaway agency, unconstrained in its vision of its powers."

She argues that what the FCC did was in the nature of rule making by adjudication -- or "adjudi-making".

She elaborated that "Whatever we call this innovative legal form, it appears to have resulted in factual findings that a single industry participant violated rules of behavior articulated for the first time in the very proceeding in which the accused was found guilty as charged."

Esbin added, "More troubling still, the adjudi-making was wholly lacking the protections afforded the subjects of more traditional administrative adjudications, such as the need for sworn testimony, adherence to the rules of evidence, and the other procedural safeguards of a ``restricted´´ adjudication."

"It sure seems Kafka-esque when we either cannot know the law or we can only know the ``law´´ by observing the actions of the nobles", wrote Esbin.

Kafka was a German who lived from 1883 until 1924 and worked in the insurance industry in Prague. He also wrote short stories, novels, and other works that were edited and published after his death. His works are mostly fantastical fiction of a nightmarish nature. His works titled "The Trial" and "The Castle", which Esbin did not quote, present individuals' horrid experiences with unfair judicial and bureaucratic systems.

The FCC's order at issue is FCC 08-183 in Docket No. 07-52.

9/4. The Federal Communications Commission (FCC) announced and released a Fourth Report and Order [14 pages in PDF] in its proceeding titled " In the Matter of Carriage of Digital Television Broadcast Signals: Amendment to Part 76 of the Commission's Rules".

This item states that "We hold that cable systems that either have 2,500 or fewer subscribers and are not affiliated with a large cable operator, or have an activated channel capacity of 552 MHz or less, are exempt from the requirement to carry high definition versions of broadcast signals for three years following the digital television (``DTV´´) Transition."

This item also states that "we clarify that our rules do not require cable operators, irrespective of system size, to carry an SD digital version of a broadcast station's signal, in addition to the analog version, to satisfy the material degradation requirement retained in the Third Report and Order."

FCC Commissioner Jonathan Adelstein wrote in a statement [PDF] that "While we are granting small cable systems an exemption to our material degradation requirement, it is important to point out that no viewer will be disfranchised. In today's Order, we ensure that all cable subscribers will continue to receive a viewable signal of all their broadcast channels. However, as we did for the satellite television industry, we have considered the technical and resource limitations of small cable systems and, accordingly, have provided limited, temporary relief."

Kyle McSlarrow, head of the National Cable and Telecommunications Association (NCTA), stated in a release that "We would like to thank the Commission for granting this important exemption that provides cable operators necessary relief from the significant burdens that dual must carry requirements would have imposed on small cable systems. For the past three years, we've urged both Congress and the FCC to protect small cable systems from burdensome carriage requirements and are we are gratified that the Commission has approved this exemption. Cable operators are committed to making the nation's broadcast digital TV transition a success and this exemption will help ensure that all cable customers will continue to be able to view broadcast signals after February 17, 2009."

The FCC adopted this item on August 20, 2008. It is FCC 08-193 in CS Docket No. 98-120.

The House will not meet. It will return from its August recess on September 8.

The Senate will meet in pro forma session only. It will return from its August recess on September 8.

The Supreme Court will return on September 29, 2008. See, October Term 2008 calendar.

8:00 AM - 4:30 PM. The National Institute of Standards and Technology's (NIST) Information Security and Privacy Advisory Board (ISPAB) will meet. See, notice in the Federal Register, August 12, 2008, Vol. 73, No. 156, at Pages 46871-46872. Location: George Washington University, Cafritz Conference Center, Room 405, 800 21st St., NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Fortunet v. Planet Bingo, App. Ct. No. 2008-1082. Location: Courtroom 402.

Deadline to submit comments to the National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) regarding its SP 800-106 [17 pages in PDF] titled "Randomized Hashing for Digital Signatures" (2nd draft).

Deadline to submit written comments to the Department of Homeland Security's (DHS) Homeland Security Advisory Council (HSAC) in connection with its meeting scheduled for September 11, 2008. See, notice in the Federal Register, August 22, 2008, Vol. 73, No. 164, at Pages 49693-49694.

The House will return from its August recess.

The Senate will return from its August recess. See, Senate 2008 calendar.

3:30 PM. The U.S. District Court (DC) will hold a settlement conference in Esther Williams v. Universal Music Group, et al., a copyright case, D.C. No. 07-cv-0714. Location: Magistrate Judge Facciola's chambers, 333 Constitution Ave., NW.

Deadline for Commercial Mobile Service (CMS) providers to file an election with the Federal Communications Commission (FCC) indicating whether or not it intends to transmit emergency alerts as part of the Commercial Mobile Alert System. See, notice in the Federal Register, September 4, 2008, Vol. 73, No. 172, at Pages 51637-51638.

9:00 - 10:30 AM. The Information Technology and Innovation Foundation (ITIF) will host an event titled "It's Time to End the Broad Band Wars". The speakers will be Robert Atkinson (ITIF), Scott Cleland (Precursor) and Harold Feld (Media Access Project). Location: ITIF, Suite 200, 1250 Eye St., NW.

9:00 AM. The Bureau of Industry and Security's (BIS) Regulations and Procedures Technical Advisory Committee (RPTAC) will meet. Part of the meeting will be closed to the public. See, notice in the Federal Register, August 21, 2008, Vol. 73, No. 163, at Page 49408. Location: Room 3884, Hoover Building, 14th Street between Constitution and Pennsylvania Aves., NW.

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in NetworkIP v. FCC, App. Ct. No. 06-1364 and 07-1092. Judges Sentelle, Brown and Kavanaugh will preside. This is petitions for review of a final order of the Federal Communications Commission (FCC) pertaining to payphone compensation. See, FCC's brief [58 pages in PDF]. Location: 333 Constitution Ave., NW.

10:00 AM. The Senate Judiciary Committee (SJC) may hold a hearing titled "Nominations". See, notice. Location: Room 562, Dirksen Building.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) in its proceeding titled "In the Matter of Implementation of the NET 911 Improvement Act of 2008". It adopted this item on August 22, and announced it and released the text [34 pages in PDF] on August 25, 2008. This NPRM is FCC 08-195 in WC Docket No. 08-171. See, notice in the Federal Register, August 28, 2008, Vol. 73, No. 168, at Pages 50741-50751.

9:00 - 10:30 AM. The Information Technology and Innovation Foundation (ITIF) will host a panel discussion titled "Is the U.S. Falling Behind in Science & Technology or Not?" The speakers will be Robert Atkinson (ITIF), Stephen Ezell (ITIF), Kent Huges (Woodrow Wilson International Center for Scholars), and Clyde Prestowitz (Economic Strategy Institute). See, notice. Location: ITIF, Suite 200, 1250 Eye St., NW.

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in NCTA v. FCC, App. Ct. No. 07-1312. This is a petition for review of the Federal Communications Commission's (FCC) 2007 final order regarding customer proprietary network information (CPNI) and 47 U.S.C. § 222. See, FCC's brief [85 pages in PDF]. Location: 333 Constitution Ave., NW.

10:00 AM. The U.S. District Court (DC) will hold a pretrial conference and motion hearing in US v. Stevens, D.C. No. 08-cr-0231. Judge Emmet Sullivan will preside. Location: Courtroom 24A, 333 Constitution Ave., NW.

RESCHEDULED FROM JULY 30. 10:00 AM. The Senate Commerce Committee (SCC) will hold a hearing titled "Improving Consumer Protection in the Prepaid Calling Card Market". This hearing will also address S 2998 [LOC | WW], the "Prepaid Calling Card Consumer Protection Act of 2008", sponsored by Sen. Bill Nelson (D-FL). Sen. Nelson will preside. The witnesses may be Rep. Eliot Engel (D-NY), William Kovacic (FTC Chairman), Sally Greenberg, (National Consumers League), Gus West (Hispanic Institute), and Barry Smitherman (Chairman, Texas Public Utility Commission). See, notice. Location: Room 253, Russell Building.

8:00 AM - 5:00 PM. The Department of Commerce's (DOC) National Institute of Standards and Technology's (NIST) Judges Panel of the Malcolm Baldrige National Quality Award will hold a closed meeting. See, notice in the Federal Register, August 8, 2008, Vol. 73, No. 154, at Pages 46247. Location: NIST, Administration Building, Lecture Room A, Gaithersburg, MD.

1:00 PM. The Department of Health and Human Services' (DHHS) American Health Information Community's (AHIC) Confidentiality, Privacy, & Security Workgroup may meet. AHIC meetings are often noticed, but cancelled. Location: Switzer Building, 330 C St., SW.

3:00 - 4:00 PM. The Homeland Security Advisory Council (HSAC) will meet by teleconference. The dial in number is 1-800-860-2442. The PIN code is 82242. See, notice in the Federal Register, August 22, 2008, Vol. 73, No. 164, at Pages 49693-49694.

12:00 NOON. The U.S. District Court (DC) will hold a status conference in Cisco Systems v. Teles AG Informationstechnologien, D.C. No. 05-cv-2048. Location: Courtroom 16, 333 Constitution Ave., NW.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) regarding telecommunications relay services and speech to speech services for individuals with hearing and speech disabilities, and speech to speech services and internet protocol speech to speech telecommunications relay service. The FCC adopted this NPRM on June 11, 2008, and released the text [19 pages in PDF] on June 24, 2008. It is FCC 08-149 in CG Docket Nos. 03-123 and 08-15. See, notice in the Federal Register, August 13, 2008, Vol. 73, No. 157, at Pages 47120-47122.

9/5. The Federal Trade Commission (FTC) published a notice in the Federal Register announcing that Charles Schneider, William Blumenthal, Pauline Ippolito, Lydia Parnes, and David Wales have been appointed to the FTC's Performance Review Board (PRB), which "reviews and evaluates the initial appraisal of a senior executive's performance by the supervisor, and makes recommendations regarding performance ratings, performance awards, and pay-for-performance pay adjustments to the FTC Chairman". See, Federal Register, September 5, 2008, Vol. 73, No. 173, at Page 51820.

9/3. President Bush named Jamil Jaffer to be Associate Counsel to the President. He was previously Counsel to the Assistant Attorney General in charge of the Department of Justice's (DOJ) National Security Division (NSD). See, White House press office release.

9/3. President Bush named Heath Tarbert to be Associate Counsel to the President. He was previously a law clerk to Supreme Court Justice Clarence Thomas. See, White House press office release.

9/2. The U.S. Court of Appeals (7thCir) issued its opinion in EroGen Biosciences v. Nucleic Acids Licensing, LLC, a case regarding patent licensing and termination of patent licensing agreements. This case is EroGen Biosciences, Inc. v. Nucleic Acids Licensing, LLC, and Steven Benner, U.S. Court of Appeals for the 7th Circuit, App. Ct. Nos. 07-1726 and 07-1727.

8/28. The U.S. Court of Appeals (3rdCir) issued its opinion [17 pages in PDF] in In Re Lucent Death Benefits ERISA Litigation, a class action brought under the Employee Retirement Income Security Act (ERISA) by former employees of AT&T and Lucent regarding termination of a pensioner death benefit. The District Court dismissed the complaint. The Court of Appeals affirmed. This case is In Re Lucent Death Benefits ERISA Litigation, U.S. Court of Appeals for the 3rd Circuit, App. Ct. Nos. 06-5008 and 06-5009, appeals from the U.S. District Court for the District of New Jersey, D.C. Nos. 03-cv-05017, 04-cv-01099, and 04-cv-00640, Judge Dennis Cavanaugh presiding.

8/28. The U.S. Court of Appeals (4thCir) issued its opinion [17 pages in PDF] in Mullins v. AT&T, a disability and Employee Retirement Income Security Act (ERISA) case. The District Court granted summary judgment to AT&T and the other defendants on the disability claim, and granted summary judgment to Mullins on the ERISA claim. Both Mullins and the defendants appealed. The Court of Appeals issued an opinion designated "unpublished" that remands to the District Court with instructions. This case is Margaret Mullins v. AT&T, et al., U.S. Court of Appeals for the 4th Circuit, App. Ct. Nos. 04-2135, 04-2136 and 07-1717.

Tech Law Journal publishes a free access web site and subscription e-mail alert. The basic rate for a subscription to the TLJ Daily E-Mail Alert is $250 per year. However, there are discounts for subscribers with multiple recipients. Free one month trial subscriptions are available. Also, free subscriptions are available for journalists, federal elected officials, and employees of the Congress, courts, and executive branch. The TLJ web site is free access. However, copies of the TLJ Daily E-Mail Alert are not published in the web site until one month after writing. See, subscription information page.

Contact: 202-364-8882.
P.O. Box 4851, Washington DC, 20008.

Privacy Policy
Notices & Disclaimers
Copyright 1998-2008 David Carney, dba Tech Law Journal. All rights reserved.