9/30. Federal Communications Commission (FCC) Chairman Kevin Martin gave a speech in Copenhagen, Denmark, at a conference on network neutrality. He said that the FCC is leveling playing fields, streamlining processes, maintaining light regulatory touches, preserving the vibrancy of the internet, and striving to achieve balance.

He also discussed the FCC's Comcast network management practices (NMPs) order and the 700 MHz auction and open wireless platforms.

NMP Order. Martin (at right) He said the FCC's August 1, 2008, order asserting authority to regulate broadband network management practices "was not about regulating the Internet" and "was not about telling providers how to manage their networks". He said that the FCC required "operators to use an even and fair hand as they control the flow of traffic on their networks".

Martin said that in the future, the FCC "will remain vigilant in protecting consumers' access to content, applications and services on the Internet. Subscribers should be able to go where they want, when they want, and generally use the Internet in any legal manner. But the hallmark of reasonable network management is the willingness to disclose the practice. When providers engage in practices truly designed to manage congestion, not cripple a given application or service, they should not be afraid to disclose their practices to consumers. Indeed, we feel they should make a point of it."

The FCC adopted this order [67 pages in PDF] on August 1, 2008, and released the text on August 20, 2008. This order is FCC 08-183 in WC Docket No. 07-52. See, story titled "FCC Asserts Authority to Regulate Network Management Practices" in TLJ Daily E-Mail Alert No. 1,805, Monday, August 4, 2008.

Open Wireless Networks. Martin also discussed the C Block of the FCC's 700 MHz auction, Auction No. 73, conducted early this year. The C Block is 22 MHz of paired spectrum (746-757 and 776-787), auctioned by Regional Economic Area Groupings (REAGs) in 12 licenses, subject to open devices and applications requirements (ODAR).

See also, story titled "FCC Closes 700 MHz Auction" in TLJ Daily E-Mail Alert No. 1,734, March 20, 2008; and, story titled "FCC Releases Details of 700 MHz Auction" in TLJ Daily E-Mail Alert No. 1,735, March 24, 2008.

Martin said that the FCC "required the winner to allow consumers to use the device of their choice on those networks and download whatever legal software or applications they choose onto it".

He continued that "When adopting the open platform in the 700 MHz band, we saw it as a rare chance to promote innovation and consumer choice while writing on a clean slate. We did not apply mandatory unbundling or wholesale requirements which might undermine investment incentives. We achieved a careful balance of spurring innovation and consumer choice while encouraging infrastructure investment. I believe this minimal regulatory touch had maximum impact."

He concluded that "The auction had an impact on innovation in the wireless industry even before the bidding began. In less than a year, many wireless providers evolved from vocal opponents to vocal proponents, embracing the open platform: Verizon Wireless has committed to open its entire network to devices and applications for consumers; T-Mobile has just introduced their Google phone running on the open Android standard; and, Sprint has announced that their Clearwire WiMax network will be open as well. This interest now appears to be shared across the industry."

10/2. Sen. Patrick Leahy (D-VT) and Sen. Arlen Specter (R-PA) sent a letter to Susan Schwab, the U.S. Trade Representative, regarding the breadth of ongoing negotiation of an Anti-Counterfeiting Trade Agreement (ACTA).

The two Senators, who are the Chairman and ranking Republican on the Senate Judiciary Committee (SJC), wrote that "we strongly urge you not to permit the agreement to address issues of liability for service providers or technological protection measures".

The Office of the U.S. Trade Representative (OUSTR) has not yet released any drafts of the ACTA. It held a meeting to receive public input on September 22, 2008. The OUSTR published as one PDF document all of the written comments that it received.

One of the comments submitted to the OUSTR was signed by the Computer & Communications Industry Association (CCIA), NetCoalition, Internet Commerce Coalition (ICC), US Internet Industry Association (USIIA), Information Technology Association of America (ITAA), Intel, Verizon, Yahoo, and others. It expressed similar concerns about addressing internet issues in the ACTA.

See also, stories titled "OUSTR to Hold Meeting on Anti-Counterfeiting Trade Agreement" in TLJ Daily E-Mail Alert No. 1,828, September 19, 2008, and "OUSTR Holds Meeting Regarding ACTA" in TLJ Daily E-Mail Alert No. 1,830, September 23, 2008.

Sen. Leahy (at right) and Sen. Specter wrote, "We urge you not to rush into a new, broad Anti-Counterfeiting Trade Agreement that may have a significant impact on intellectual property protection at home and abroad and which can take effect without formal Congressional involvement. We encourage you to limit the agreement to improved coordination among nations and robust, but flexible standards for civil, criminal, and border enforcement."

They expressed their concern that "the ACTA under consideration will prescribe rules for protection so specifically that it could impede Congress's ability to make constructive policy changes in the future. Our concern that ACTA, if not drafted with sufficient flexibility, could limit Congress's ability to make appropriate refinements to intellectual property law in the future is institutional ..."

10/2. President Bush signed into law HR 5893 [LOC | WW], the "Library of Congress Sound Recording and Film Preservation Programs Reauthorization Act of 2008". See, White House news office release.

This bill amends the National Recording Preservation Act of 2000, which is codified at Chapter 27 of Title 2, to extend the authorization of appropriations to the Library of Congress (LOC) through fiscal year 2016 for its sound recording and film preservation programs. These programs exist to preserve certain old movies and audio recordings.

The bill also addresses the membership and operations of the LOC's National Recording Preservation Foundation (NRPF) and the LOC's National Film Preservation Board (NFPB).

Rep. Robert Brady (D-PA) introduced this bill on April 24, 2008. The House Administration Committee amended and approved this bill on May 7, 2008. The full House approved the bill on June 4, 2008, by voice vote, under suspension of the rules.

Rep. Brady (at right) stated in the House on June 4 that the NFPB "was created in 1988 to address the rapid deterioration of important films" and that it identifies and preserves films that are "culturally, historically, or aesthetically significant".

He said that the NRPB was created in 2000, and preserves music and historical speeches.

These Boards, said Rep. Brady, preserve "sounds and sights that are essential to our national heritage". See, Congressional Record, June 4, 2008, at pages H4899-4900.

The Senate passed the bill by unanimous consent, without amendment, and without debate, on September 16, 2008.

Neither the House Judiciary Committee (HJC), nor the Senate Judiciary Committee (SJC), held a hearing or mark up of the bill. However, Rep. Brady worked with the HJC, and Rep. John Conyers (D-MI), the Chairman of the HJC, asserted jurisdiction, but discharged the HJC from further consideration of the bill.

President Bush signed the bill on October 2. It is now Public Law No. 110-336.

10/2. The Public Knowledge (PK) and other groups filed an ex parte comment [17 pages in PDF] and appendices [44 pages in PDF] with the Federal Communications Commission (FCC) in its proceeding regarding blocking of text messages.

Wireless carriers want the FCC to deny the PK's 2007 petition on the basis that it would interfere with their ability to block wireless spam. The PK argues in its October 2 filing that the ruling that it requests would not impact wireless spam.

Background. The PK and other groups filed a Petition for Declaratory Ruling [33 pages in PDF] with the FCC on December 11, 2007. See, 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.

That petition alleged that "Mobile carriers currently can and do arbitrarily decide what customers to serve and which speech to allow on text messages, refusing to serve those that they find controversial or that compete with the mobile carriers' services."

The petition offered as an example Verizon Wireless's 2007 action with respect to messages of the National Abortion Rights Action League (NARAL). The petition alleges that "In September of 2007, Verizon refused to issue a short code to NARAL Pro-Choice America, an activist group which was seeking to keep its supporters up-to-date via text messages like similar organizations had done in the past."

See also, 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".

March 14, 2008, was the deadline to submit initial comments to the FCC. See, PK comment [12 pages in PDF], CTIA comment [61 pages in PDF], Sprint Nextel comment [20 pages in PDF], T-Mobile comment [28 pages in PDF], Rebtel comment [24 pages in PDF], AT&T comment [25 pages in PDF], MetroPCS comment [22 pages in PDF], and Verizon Wireless comment [61 pages in PDF], attachment [45 pages in PDF], and attachment [41 pages in PDF]

April 14, 2008, was the deadline to submit reply comments. See, PK comment [85 pages in PDF], Verizon Wireless comment [31 pages in PDF], T-Mobile comment [PDF], CTIA comment [17 pages in PDF], MetroPCS comment [17 pages in PDF], and AT&T comment [4 pages in PDF].

The FCC's proceeding is numbered WC Docket No. 08-7.

This proceeding is not listed on the FCC's tentative agenda [PDF], released on September 25, 2008, for its meeting scheduled for October 15, 2008.

CTIA Ex Parte Comment. On July 18, 2008, the CTIA, which represents wireless carriers, submitted an ex parte comment [3 pages in PDF] regarding "text messaging spam" that violates the CAN-SPAM Act and Telephone Consumer Protection Act (TCPA).

The CTIA stated that "wireless carriers are using filters in their networks to help detect and block text messaging spam from third party spammers, often using Internet IP addresses. Carriers are updating their network filters on an ongoing basis to reflect monitoring for new spamming schemes."

It argued that "wireless carriers must retain the ability to protect their customers from fraud, spam, and objectionable material. To ensure that carriers can continue these important efforts, the Commission should reject attempts to regulate SMS and Short Code services as Title II services, subject to the Commission’s common carrier obligations".

See also, April 22, 2008, letter [PDF] from Verizon Wireless to Rep. Peter DeFazio (D-OR), filed with the FCC on May 2.

PK Ex Parte Comment. The PK argues in its October 2 comment that granting its petition would not harm carriers' ability to fight spam.

The PK wrote that "the wireless carriers have not explained how granting this Petition would result in an increase in spam, and there is good evidence that it would not. Grant of this Petition would not enhance the ability of ``spammers´´ to send unsolicited e-mail to mobile phones because they can already do so anonymously and without short codes. Furthermore, wireless providers would retain the same rights and capabilities to block/filter/limit unsolicited email even if text messaging via short codes operates under a common carriage regime."

The PK explained that "Short code addresses are given to a content provider primarily so that the content provider can receive, not send, text messages. The principal value of short codes is that it makes it easier for a wireless subscriber to send a short message to a content provider via a 5 or 6-digit set of numbers. In sending this message, some consumers may ask the content provider to send them information on a regular basis."

The PK continued that short code campaigns operate on an opt-in basis, and that its is the "subscriber that initiates the text message, not the content provider." Hence, subscribers receive only messages that they have chosen to receive. And this, the PK argues, is not unsolicited.

It argues that "Making short codes available to parties does not give spammers any more access to wireless phones than they already have." They can already send spam text messages without short codes.

The groups that joined in the PK's comment include the Free Press, Consumer Federation of America, Consumers Union, Educause, Media Access Project, New America Foundation, and U.S. PIRG.

The House will meet at 9:00 AM. The agenda includes consideration of HR 1424 [ LOC | WW], the "Emergency Economic Stabilization Act of 2008".

The Senate will not meet.

8:30 - 11:00 AM. The George Mason University law school's Information Economy Project (IEP) will host an event titled "The Gore Commission, 10 Years Later: The Public Interest Obligations of Digital TV Broadcasters in Perfect Hindsight". The speakers will be Thomas Hazlett (IEP), Gigi Sohn (Public Knowledge), Norman Ornstein (American Enterprise Institute), and Henry Geller. This event is free and open to the public. See, notice. For more information, contact Drew Clark at 703-998-8234 or drew at drewclark dot com. Location: Holeman Lounge, National Press Club, 13th floor, 529 14th St. NW.

12:15 - 1:30 PM. The Federal Communications Bar Association's (FCBA) Cable Practice and Wireline Committees will host a brown bag lunch titled "The effects of the Commission's Network Management Order on broadband providers and their customers". Location: Harris Wiltshire & Grannis, 12th floor, 1200 18th St., NW.

Deadline to submit initial comments to the Federal Communications Commission's (FCC) Notice of Proposed Rulemaking (NPRM) regarding broadcast low power auxiliary stations operating in the 700 MHz band, such as wireless microphones. This NPRM is FCC 08-188 in WT Docket Nos. 08-166 and 08-167. The FCC adopted this NPRM on August 15, 2008, and announced it and released the text [24 pages in PDF] on August 21, 2008. See, story titled "FCC Releases NPRM on Wireless Microphones Operating in 700 MHz Band" in TLJ Daily E-Mail Alert No. 1,817, August 21, 2008. See, notice in the Federal Register, September 3, 2008, Vol. 73, No. 171, at Pages 51406-51415.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) regarding expanding the scope of services and products covered by the FCC's schools and libraries tax and subsidy program. The FCC adopted this item on July 25, 2008, and released the text [26 pages in PDF] on July 31, 2008. It is FCC 08-173 in CC Docket No. 02-6. See, notice in the Federal Register, August 19, 2008, Vol. 73, No. 161, at Pages 48352-48359.

Deadline to submit to the Office of the U.S. Trade Representative's (OUSTR) pre-hearing briefs and requests to appear in connection with the 2008 Generalized System of Preferences (GSP) Annual Review. See, notice in the Federal Register, September 12, 2008, Vol. 73, No 178, at Pages 53054-53056.

The Senate will meet at 3:00 PM in pro forma session only.

10:00 AM - 4:00 PM. The U.S.-China Economic and Security Review Commission will hold a public meeting to work on its 2008 Annual Report to Congress. See, notice in the Federal Register, July 29, 2008, Vol. 73, No. 146, at Pages 43978-43979, and notice in the Federal Register, September 18, 2008, Vol. 73, No. 182, at Page 54205. Location: Conference Room 333, Hall of the States, 444 North Capitol St., NW.

Deadline to submit comments to the U.S. Patent and Trademark Office (USPTO) in response to its notice of proposed rulemaking regarding changes to its rules of practice to limit the types of correspondence that may be submitted to the USPTO by facsimile, and to increase the minimum font size for use on papers submitted to the USPTO for a patent application, patent or reexamination proceeding. See, notice in the Federal Register, August 6, 2008, Vol. 73, No. 152, at Pages 45662-45673.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to certain ex parte filings submitted by the Association of Public Safety Communications Officials, International (APCO), National Emergency Number Association (NENA), AT&T, Sprint Nextel, and Verizon Wireless regarding the FCC's location accuracy mandates. See, FCC Public Notice [13 pages in PDF], Public Notice [PDF] and notice in the Federal Register, September 25, 2008, Vol. 73, No. 187, at Pages 55473-55495. These Public Notices are DA 08-2129 and DA 08-2149 in PS Docket No. 07-114.

Deadline to submit reply comments to the Federal Communications Commission's (FCC) Media Bureau in response to the PPM Coalition's (PPMC) September 2, 2008, filing titled "Emergency Petition for Section 403 Inquiry." This petition asks the FCC to open an inquiry into Arbitron's use of Portable People Meters (PPM). This item is DA 08-2048 in MB Docket No. 08-187.

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in Core Communications v. FCC, App. Ct. No. 07-1381. See, FCC's brief [61 pages in PDF]. Judges Rogers, Tatel and Williams will preside. Location: Courtroom 22 Annex, 333 Constitution Ave., NW.

10:00 AM - 4:00 PM. The U.S.-China Economic and Security Review Commission will hold a public meeting to work on its 2008 Annual Report to Congress. See, notice in the Federal Register, July 29, 2008, Vol. 73, No. 146, at Pages 43978-43979, and notice in the Federal Register, September 18, 2008, Vol. 73, No. 182, at Page 54205. Location: Conference Room 333, Hall of the States, 444 North Capitol St., NW.

Day one of a two day conference hosted by the Information Technology Association of America (ITAA) titled "IdentEvent". See, conference web site. Location: JW Marriott Hotel, 1331 Pennsylvania Ave., NW.

Yom Kippur begins at sundown.

9:00 AM - 3:00 PM. The U.S.-China Economic and Security Review Commission will hold a public meeting to work on its 2008 Annual Report to Congress. See, notice in the Federal Register, July 29, 2008, Vol. 73, No. 146, at Pages 43978-43979, and notice in the Federal Register, September 18, 2008, Vol. 73, No. 182, at Page 54205. Location: Conference Room 333, Hall of the States, 444 North Capitol St., NW.

RESCHEDULED FOR NOVEMBER 6. 10:00 AM - 12:00 PM. The Department of State's (DOS) International Telecommunication Advisory Committee will meet to prepare for the International Telecommunication Union (ITU) Council Meeting to be held on November 12-21, 2008, in Geneva, Switzerland. See, notice in the Federal Register, September 22, 2008, Vol. 73, No. 184, at Page 54655. Location: 10th floor, 1120 20th St., NW. See, rescheduling notice in the Federal Register, September 26, 2008, Vol. 73, No. 188, at Pages 55891-55892.

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.

Day two of a two day conference hosted by the Information Technology Association of America (ITAA) titled "IdentEvent". See, conference web site. Location: JW Marriott Hotel, 1331 Pennsylvania Ave., NW.

Deadline to submit comments to the Bureau of Industry and Security (BIS) regarding foreign policy based export controls contained in the export administration regulations (EAR) implementing the Export Administration Act of 1979, as expired. See, notice in the Federal Register, September 8, 2008, Vol. 73, No. 174, at Pages 52006-52007.

Yom Kippur.

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

Deadline to submit comments to the National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) regarding its SP 800-107 [20 pages in PDF] titled "Recommendation for Applications Using Approved Hash Algorithms".

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in NCTA v. FCC, App. Ct. No. 07-1356. See, FCC's brief [61 pages in PDF]. Judges Ginsburg, Tatel and Brown will preside. Location: 333 Constitution Ave., NW.

12:00 NOON. The Cato Institute will host a discussion of the book [Amazon] titled "The Crime of Reason and the Closing of the Scientific Mind". This book argues that intellectual property laws and government security demands threaten the development of new knowledge. The speakers will be Robert Laughlin (author), Tom Sydnor (Progress & Freedom Foundation), and Jim Harper (Cato). See, notice and registration page. This event is free and open to the public. The Cato will web cast this event. Lunch will be served after the program. Location: Cato, 1000 Massachusetts Ave., NW.

10/2. The U.S. Court of Appeals (FedCir) issued its divided opinion [18 pages in PDF] in Johns Hopkins University v. Datascope, a patent infringement case involving technology for fragmenting blood clots. Following a jury trial, the District Court entered judgment of infringement and contributory infringement. The Court of Appeals reversed, on the basis that the jury's finding of infringement was not supported by substantial evidence. This case is Johns Hopkins University and Arrow International, Inc. v. Datascope Corporation, U.S. Court of Appeals for the Federal Circuit, App. Ct. No. 2007-1530, an appeal from the U.S. District Court for the Northern Division of Maryland, D.C. Nos. 05-CV-00759 and 06-CV-02711, Judge William Quarles presiding. Judge Rya Zobel (U.S.D.C., District of Massachusetts, sitting by designation), wrote the opinion of the Court of Appeals, in which Judge Schall joined. Judge Pauline Newman wrote a dissenting opinion.

10/2. The Federal Trade Commission (FTC) announced that it will co-host, with the Southern Methodist University law school, a half day workshop titled "Protecting Personal Information: Best Practices for Business". See, FTC notice. This event will be held on November 13, 2008, at 9:30 AM, at the SMU law school in Dallas, Texas.

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