12/3. Comcast and General Electric (GE) announced in a release that they "have signed a definitive agreement to form a joint venture that will be 51 percent owned by Comcast, 49 percent owned by GE and managed by Comcast."

The release adds that "The joint venture, which will consist of the NBC Universal (NBCU) businesses and Comcast's cable networks, regional sports networks and certain digital properties and certain unconsolidated investments, will be well positioned to compete in an increasingly dynamic and competitive media and digital environment."

Comcast and GE did not release text of the agreement. However, they disclosed in their release that "GE will contribute to the joint venture NBCU's businesses valued at $30 billion, including its cable networks, filmed entertainment, televised entertainment, theme parks, and unconsolidated investments, subject to $9.1 billion in debt to third party lenders. Comcast will contribute its cable networks including E!, Versus and the Golf Channel, its ten regional sports networks, and certain digital media properties, collectively valued at $7.25 billion, and make a payment to GE of approximately $6.5 billion of cash subject to certain adjustments based on various events between signing and closing."

"NBCU, valued at $30 billion, will be contributed to the newly formed joint venture. Comcast will contribute its programming businesses and certain other properties valued at $7.25 billion." They added that "NBCU will borrow approximately $9.1 billion from third-party lenders and distribute the cash to GE.

In addition, "GE will acquire Vivendi's 20% interest in NBCU for $5.8 billion. GE will purchase approximately 38% of Vivendi's interest (or approximately 7.66% of all outstanding NBCU shares) from Vivendi for $2 billion in September 2010, if the Comcast transaction is not closed by then. GE will acquire the remaining 62% of Vivendi's interest (or approximately 12.34% of all outstanding NBCU shares) for $3.8 billion when the transaction closes." (Parentheses in original.)

The release also announced "the creation of Comcast Entertainment Group (CEG), which will house Comcast's interest in the joint venture and will stand alongside Comcast Cable, which operates the company’s traditional cable business."

The two companies also stated in their release that "It is subject to receipt of various regulatory approvals, including clearance under the Hart-Scott-Rodino Antitrust Improvements Act, and approvals of the Federal Communications Commission and certain international agencies."

Comcast also released a memorandum to makes numerous commitments to federal regulators, especially the Federal Communications Commission (FCC), regarding planned activities and operations, and to further efforts to secure timely regulatory approvals. See, related story in this issue titled "Comcast Offers Commitments to Regulators Regarding GE Joint Venture". See also, story in this issue titled "Reaction to Proposed Comcast GE Transaction".

12/3. Comcast released a memorandum [5 pages in PDF] in connection with its proposed joint venture with General Electric that states that "In connection with our applications to federal regulators for approval of this venture, we intend to make a number of affirmative commitments for how we will use these assets to better meet the entertainment, communications, and information needs of the American public."

Comcast enumerated in this memorandum its planned commitments regarding (1) free over the air television, (2) localism, (3) public, educational, and governmental (PEG) channels, (4) independence in NBC journalism, (5) children's programming, (6) diversity, (7) free on demand programming, (8) FCC program access rules, (9) non-affiliated video programmers, and (10) labor contracts.

First, this memorandum states that "the combined company remains committed to continuing to provide free over-the-air television through its O&O stations and through local broadcast affiliates across the nation." O&O is owned and operated.

Second, regarding localism, Comcast wrote that "We intend to preserve and enrich the output of local news, local public affairs, and other public interest programming on NBC O&O stations. Through the use of Comcast's On Demand and On Demand Online platforms, time slots on cable channels, and use of certain windows on the O&O schedules, we believe we can expand the availability of all types of local and public interest programming."

Third, "With respect to PEG channels, we will not migrate PEG channels to digital delivery on any Comcast cable system until the system has converted to all digital distribution (Ie., until all analog channels have been eliminated), or until a community otherwise agrees to digital PEG channels, whichever comes first." Also, "we will also develop a platform to host PEG content On Demand and On Demand Online within three years of closing". (Parentheses in original.)

Fourth, "Since NBCU was acquired by GE in 1986, the owners have abided by a policy (summarized in a filing with the FCC) of ensuring that the content of NBC's news and public affairs programming would not be influenced by the non-media interests of General Electric. ... The combined company will continue these policies with respect to the news programming organizations of all NBCU networks and stations, and will extend these policies to the potential influence of each of the owners". (Parentheses in original.) NBCU is NBC Universal.

Fifth, "We will use Comcast's On Demand and On Demand Online platforms and a portion of the NBC O&Os' digital broadcast spectrum to speak to kids." Also, the combined company will incorporate Common Sense Media (CSM) ratings into "its emerging On Demand and On Demand Online platforms and other advanced platforms".

Sixth, "We intend to expand the availability of over-the-air programming to the Hispanic community utilizing a portion of the digital broadcast spectrum of the Telemundo O&O's (as well as offering it to Telemundo affiliates) to enhance the current programming of Telemundo and Mun2." And, "We will use Comcasts On Demand and On Demand Online platforms to feature Telemundo programming." (Parentheses in original.)

Seventh, "We commit that at least 75 percent of our On Demand programming library will be available to subscribers at no extra charge for the three-year period after closing."

Eighth, "We commit to voluntarily extend the key components of the FCC's program access rules to negotiations with MVPDs for retransmission rights to the signals of NBC and Telemundo O&O stations", and "We commit to voluntarily accept the application of program access rules to the high-definition (HD) feeds of any network whose standard definition (SD) feed is subject to the program access rules", both for "as long as the FCC's current program access rules remain in place".

Ninth, "we will commit that, once Comcast has completed its digital migration company-wide (anticipated to be no later than 2011), we will add two new independently-owned and -operated channels to our digital line-up
each year for the next three years on customary terms and conditions." (Parentheses in original.)

Tenth, "We plan to honor all of NBCU's collective bargaining agreements".

12/3. Representatives of Washington DC based advocacy groups and think tanks promptly commented on the announcement by Comcast and General Electric that they intend to form a joint venture regarding NBC Universal.

Ken Ferree of the Progress & Freedom Foundation (PFF), and a former FCC Bureau Chief, predicted in a release that "various advocacy groups will hoot and holler that Comcast's stake in NBC Universal is another sign that the sky is falling".

He continued that "It's not. Simply put, the deal raises no general antitrust or diversity issue. Comcast is primarily a distribution company, not a content company like NBCU. And to the extent that programming withholding ever becomes an issue in an individual market, such conduct can be addressed on a case-by-case basis (preferably by antitrust authorities with expertise in the area rather than the FCC)." (Parentheses in original.)

He added, that "I feel compelled to once again ask why we have inefficient, redundant review of proposed business combinations by both the FCC and antitrust regulators. Every new layer of regulatory review raises the costs of transactions, increases the uncertainty in the market, and discourages productive economic activity. It is far past time for Congress to pull the FCC's nose out of these deals and to streamline the federal role in reviewing business transactions." (Parentheses in original.)

The Free Press (FP) and Consumer Federation of America (CFA) issued a release [4 pages in PDF] titled "Why the Comcast/NBC Merger Poses a Major Threat to Video Competition that Antitrust Authorities Cannot Ignore". It states that "this merger raises the most basic antitrust issues".

The FP/CFA release argues that "A vertically integrated Comcast/NBC would not only control marquee television and movie content, it would also control the primary avenues for distributing that content: a major television broadcast network, a major cable system operator and a major broadband Internet access provider. Because the merged entity would control both content and distribution, it would have both the incentive and the market power to limit the access of competing content to the distribution platforms it controls. It would also have the power to enforce anticompetitive bundling and pricing of its own programming, or in some cases, to deny its competitors access to its programming altogether."

The FP/CFA also addressed the likely impact upon the "online video realm". They wrote that "Antitrust authorities should be concerned that a merged company would have a powerful motive to starve competing online video sources by denying them access to valuable content."

Also, "Comcast/NBC would attempt to protect lucrative cable subscription profits by moving Comcast/NBC online video content behind a pay wall tied to Comcast cable subscriptions."

Gigi Sohn, head of the Public Knowledge, also complained. She stated in one release that this transaction "raises substantial and complex competition issues across multiple types of media".

She also argued that this transaction "makes a Net Neutrality rule that much more necessary".

Sohn stated in another release that Comcast's commitments memorandum only states that "Comcast would obey existing programming access requirements (which don't apply to terrestrially distributed programming), and would comply with requirements for programming for children. It made no mention of making programming available to other online providers." (Parentheses in original.)

She also wrote that Comcast plans to "go ahead with their TV Everywhere plan to make cable-based programming available online only to cable customers behind a pay wall. That plan is unacceptable and incompatible with the spirit of making programming widely available to competitors as Comcast claims it wants to do."

11/27. The American Antitrust Institute (AAI) release a paper [13 pages in PDF] titled "Refusals to License and Installed-Base Opportunism in the Mainframe Computer Industry: The Investigation of IBM". The author is Andrew Chin, a professor at the University of North Carolina law school.

He wrote that "In interpreting the anti-monopolization provisions (Section 2) of the Sherman Act, the courts have been less clear about the potential for liability arising from the refusal to license a patented product. A monopolist can sometimes harm competition by refusing patent licenses to would-be customers who do business with the monopolist’s competitors. Nevertheless, some courts have gone so far as to suggest that such refusals are always legal, except where there is a separate basis for legal liability." This section is codified at 15 U.S.C. § 2.

He continued that while the Department of Justice (DOJ) previously allowed "unilateral, unconditional refusals to deal, including refusals to license intellectual property, without facing meaningful antitrust scrutiny", the recent appointment of Christine Varney to head the DOJ's Antitrust Division signaled a change.

He also wrote that "The Antitrust Division's recently reported opening of an investigation into IBM’s conduct in the mainframe computer industry appears to confirm this shift in Section 2 enforcement, and raises the possibility that the agency will seek clarification from the courts as to whether and when the restrictive licensing of patented technology can give rise to monopolization liability."

12/2. The House Judiciary Committee (HJC) scheduled, but held over, the mark up HR 3190 [LOC | WW], the "Discount Pricing Consumer Protection Act of 2009". See, notice. The HJC has not yet scheduled its next mark up for this bill.

This bill would undo the Supreme Court's June 28, 2007 opinion [55 pages in PDF] in Leegin Creative Leather Products v. PSKS. This bill could impact what marketing practices are permissible for makers of complicated consumer electronics devices. It would ban vertical agreements between makers and distributors that set minimum resale prices.

The entire substantive language of this bill is as follows: "Any agreement setting a price below which a product or service cannot be sold by a retailer, wholesaler, or distributor shall violate section 1 of the Sherman Act (15 U.S.C. 1)." (Parentheses in original.)

The bill has three sponsors. Rep. Hank Johnson (D-GA) (at left) and Rep. John Conyers (D-MI) introduced this bill on July 13, 2009. Rep. Rick Boucher (D-VA) later joined as a cosponsor.

The relevant statute, Section 1 of the Sherman Act, which is codified at 15 U.S.C. § 1, provides little guidance. It merely states that "Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal." Section 1 also contains a criminal prohibition. The rest of the law exists in judicial interpretation and agency enforcement decisions.

Resale price maintenance (RPM) exists when a manufacturer agrees with its distributor(s) to set the minimum price that the distributor(s) can charge for the manufacturer's goods. Prior to the Leegin opinion, RPM was subject to the antitrust per se rule. That is, RPM was automatically illegal, even if it could be demonstrated to have no anticompetitive effect. The case on point was Supreme Court's 1911 opinion in Dr. Miles Medical Co. v. John D. Park & Sons Co., which is reported at 220 U.S. 373.

Leegin. The 2007 Leegin opinion overturned Dr. Miles. However, the Supreme Court did not hold that RPM is never a violation of Section 1 of the Sherman Act. Rather, it held that vertical RPM agreements are subject to the rule of reason standard.

See, story titled "Supreme Court Grants Certiorari in Antitrust Cases" in TLJ Daily E-Mail Alert No. 1,501, December 8, 2007, and story titled "SCUS Holds That All Vertical Price Restraints Are Subject to Rule of Reason" in TLJ Daily E-Mail Alert No. 1,603, June 28, 2007.

(Leegin was a 5-4 opinion. The subsequent appointment of Justice Sonia Sotomayor cannot change the balance. She replaced former Justice David Souter, who joined in the dissent.)

The rule of reason standard originated with the 1911 opinion in Standard Oil v. U.S., 221 U.S. 1. The Supreme Court wrote in Leegin that under the rule of reason standard, "the factfinder weighs all of the circumstances of a case in deciding whether a restrictive practice should be prohibited as imposing an unreasonable restraint on competition."

Relevant factors include information about the relevant business, the restraint's history, nature, and effect, and whether the businesses involved have market power. The Supreme Court wrote in Leegin that the rule of reason is designed to distinguish between restraints "with anticompetitive effect that are harmful to the consumer and restraints stimulating competition that are in the consumer’s best interest".

The Supreme Court continued that the "economics literature is replete with procompetitive justifications for a manufacturer's use of resale price maintenance."

It also wrote that "A single manufacturer's use of vertical price restraints tends to eliminate intrabrand price competition; this in turn encourages retailers to invest in tangible or intangible services or promotional efforts that aid the manufacturer's position as against rival manufacturers. Resale price maintenance also has the potential to give consumers more options so that they can choose among low-price, low-service brands; high-price, high-service brands; and brands that fall in between."

Moreover, it also wrote that RPM "can increase interbrand competition by facilitating market entry for new firms and brands."

And finally, it also wrote that "Absent vertical price restraints, the retail services that enhance interbrand competition might be underprovided. This is because discounting retailers can free ride on retailers who furnish services and then capture some of the increased demand those services generate."

Free Riders in Marketing of Tech Devices. This free rider problem is especially applicable to complex consumer electronics products. Many consumers do not know what the products' features are, or how to use the products.

In order to promote adoption of new technologies, and sales of their products, manufacturers have an interest in distributors' disseminating information about the new devices through advertising, in store demonstrations, training of employees, and customer support. But, these services impose costs on the distributors who provide them.

This can create a free riding situation, when some distributors go to the trouble to provide such information and support, but others do not. The presence of free riders, offering the products at lower prices, disincents other distributors from educating consumers. This, in turn, disincents manufacturers from offering complex devices that require consumer education.

And this inhibits innovation in the IT sector.

At least, this is the argument found in economics literature, as well as in the Department of Justice's (DOJ) Office of the Solicitor General's (OSG) amicus curiae brief in Leegin, and another amicus curiae brief filed by a group of 23 economists.

Most significantly, this argument was accepted by the Supreme Court. It wrote that "Consumers might learn, for example, about the benefits of a manufacturer's product from a retailer that invests in fine showrooms, offers product demonstrations, or hires and trains knowledgeable employees." But, "the high-service retailer will lose sales to the discounter, forcing it to cut back its services to a lower level than consumers would otherwise prefer".

April 28 Hearing. The HJC's Subcommittee on Courts and Competition Policy held a hearing on April 28, 2009, titled "Bye Bye Bargains? Retail Price Fixing, the Leegin Decision, and Its Impact on Consumer Prices". The panel was stacked three to one with witnesses against the Leegin opinion.

Todd Cohen, head of eBay's government relations, wrote in his prepared testimony [PDF] that the Leegin opinion "is beginning to undermine many of the consumer benefits delivered by innovators using the openness of the Internet".

He continued that in 2007 "commentators predicted that the decision would lead to an increase in RPM programs and related practices that restrict intrabrand price competition. Anecdotal reports and other information corroborate that this has indeed been the result. These reports further identify Internet retailers as a particular target of the increasing use of RPM." He added that "eBay's own experiences confirm this to be true".

Cohen also argued that "the largest and most established retailers are free-riding on the tremendous consumer information tools created by Internet innovators". For example, "Internet retailers provide significant pre-sale information to their customers", and "consumers are increasingly turning to the Internet to search for product information, make product comparisons and check prices before visiting and purchasing from traditional brick and mortar stores – raising the question of who is actually the free-rider".

See also, Cohen's prepared testimony of May 19, 2009, for the Senate Judiciary Committee.

Federal Trade Commission (FTC) Commissioner Pamela Harbour criticized the Supreme Court's opinion in her prepared testimony. Richard Brunell, testifying on behalf of the American Antitrust Institute (AAI), also criticized the Leegin opinion in his prepared testimony.

Thomas Hungar, of the Washington DC office of the law firm of Gibson Dunn & Crutcher (GDC), praised the Leegin opinion in his prepared testimony [29 pages in PDF]. Hungar was a Deputy Solicitor General in the DOJ's OSG at the time that the DOJ filed its amicus curiae brief in the Leegin case. His name is on the brief. The Supreme Court adopted the conclusion advocated in that brief.

(Ted Olson, who was the Solicitor General early in the administration of former President Bush, and is now a partner at GDC, represented Leegin before the Supreme Court.)

Hungar wrote that "Manufacturers are not in the business of increasing retailer profits, and have no interest in doing so; a manufacturer’s interest is instead to incentivize its retailers to market its product in the most effective way, thereby maximizing inter-brand competition and increasing the manufacturer's sales. Accordingly, when we see a manufacturer using vertical agreements to influence its retailers through any of these techniques, the most plausible explanation is that the manufacturer is using the technique to compete with other brands and gain market share, not to enrich its retailers."

Senate Bill. There is a similar bill pending in the Senate, S 148 [LOC | WW], also titled the "Discount Pricing Consumer Protection Act". Sen. Herb Kohl (D-WI) introduced it on January 6, 2009.

It would amend Section 1 of the Sherman Act to provide that "Any contract, combination, conspiracy or agreement setting a minimum price below which a product or service cannot be sold by a retailer, wholesaler, or distributor shall violate this Act." There are now eight cosponsors. All are Democrats.

The Senate Judiciary Committee (SJC) held a hearing on July 31, 2007, titled "The Leegin Decision: The End of the Consumer Discounts or Good Antitrust Policy". See, SJC web page for this hearing with hyperlinks to prepared testimony and an audio recording. The SJC held another hearing on May 19, 2009, titled "The Discount Pricing Consumer Protection Act: Do We Need to Restore the Ban on Vertical Price Fixing?". See, SJC web page for this hearing.

Varney and Leegin. Christine Varney (at right), President Obama's appointee to run the DOJ's Antitrust Division, has been giving speeches that reflect a desire to undo some of the major recent developments in antitrust law and enforcement policy. Although, to date, she has largely given speeches without implementing action.

Leegin and rule of reason RPM are on her target list. For example, she gave a speech titled "Antitrust Federalism: Enhancing the Federal/State Relationship" in New York City on October 7, 2009. The primary topic of her speech was an attack upon the Supreme Court's Leegin opinion.

Leegin construed a federal antitrust statute. Varney enforces federal antitrust statutes. She is bound by the Supreme Court's opinion. "As for federal law", Varney conceded, "it is clear that Leegin calls for a rule of reason inquiry". But, she continued that states apply state antitrust laws, and are not bound by Leegin. She encouraged state "enforcers to keep an open mind", and serve as a laboratory of RPM litigation.

See also, story titled "Varney Discusses Antitrust, States AGs, RPM and the Rule of Reason" in TLJ Daily E-Mail Alert No. 1,999, October 8, 2009.

12/2. The House passed HR 320 [LOC | WW], the "CJ's Home Protection Act of 2009", on Wednesday, December 2009, by voice vote. This bill would amend 42 U.S.C. § 5403 to provide that "each manufactured home delivered for sale shall be supplied with a weather radio inside the manufactured home that ... is capable of broadcasting emergency information relating to local weather conditions ..." 42 U.S.C. § 5402 provides a definition for the term "Federal manufactured home". See also, story titled "House to Consider Bill Mandating Radios in New Manufactured Houses" in TLJ Daily E-Mail Alert No. 2,017, November 30, 2009.

12/2. The House passed HR 2873 [LOC | WW], the "Enhanced S.E.C. Enforcement Authority Act", on Wednesday, December 2, 2009, by voice vote. This bill would override parts of Rule 45, Federal Rules of Civil Procedure (FRCP), in actions brought under federal securities statutes, by providing that subpoenas issued by one U.S. District Court may be served and enforced anywhere. It would enhance the ability of the SEC to engage in forum shopping. It would also decrease the ability of subpoena recipients, including investigative reporters, to challenge improper or burdensome subpoenas. See also, story titled "House to Consider SEC Subpoena Bill" in TLJ Daily E-Mail Alert No. 2,017, November 30, 2009.

12/2. The Senate Commerce Committee (SCC) held a hearing titled "Transportation Security Challenges Post-9/11". The prepared testimony of Cathleen Berrick of the Government Accountability Office (GAO) touched on cyber security. See, GAO testimony [25 pages in PDF] titled "Homeland Security: DHS's Progress and Challenges in Key Areas of Maritime, Aviation, and Cybersecurity". This report states that "The federal government has developed a strategy to address cyber threats. Specifically, President Bush issued the 2003 National Strategy to Secure Cyberspace and related policy directives, such as Homeland Security Presidential Directive 7, that specify key elements of how the nation is to secure key computer-based systems, including both government systems and those that support critical infrastructures owned and operated by the private sector. The strategy and related policies also establish DHS as the focal point for cyber critical infrastructure protection and assigns DHS multiple leadership roles and responsibilities in this area ... More recently, in February 2009, President Obama directed the National Security Council and Homeland Security Council to conduct a comprehensive review to assess the United States’ cybersecurity-related policies and structures. The resulting May 2009 report made a number of recommendations to improve the nation’s approach." See, 2003 Homeland Security Presidential Directive 7, and 2009 Cyberspace Policy Review: Assuring a Trusted and Resilient Information and Communications Infrastructure [76 pages in PDF].

8:30 AM - 2:00 PM. The Department of Homeland Security's (DHS) Data Privacy and Integrity Advisory Committee will meet. See, notice in the Federal Register, November 16, 2009, Vol. 74, No. 219, at Pages 58966-58967. Location: L'Enfant Plaza East, Suite 3207, 490 L'Enfant Plaza, SW.

8:45 AM - 1:00 PM. The Phoenix Center for Advanced Legal & Economic Public Policy Studies will host an event titled "Telecoms Symposium". The first panel is titled "Economists Panel". The speakers will be Marius Schwartz (Georgetown University), Jonathan Baker (FCC), Robert Willig (Princeton University), and George Ford (Phoenix Center). The second panel is titled "Does Congestion Matter?". The speakers will be Edward Amoroso (AT&T), Jason Livigood (Comcast), and Rob Curtis (FCC). FCC Commissioner Meredith Baker will give a speech. This event is free. See, notice. Location: University Club, 1135 16th St., NW.

9:00 AM - 4:45 PM. The Department of Justice's (DOJ) Antitrust Division and the Federal Trade Commission (FTC) will host the first of five public workshops regarding amending the Horizontal Merger Guidelines (HMG). See, DOJ release, FTC list of questions, and FTC HMG Project web site. See also, stories titled "Antitrust Division and FTC May Amend Horizontal Merger Guidelines" in TLJ Daily E-Mail Alert No. 1987, September 23, 2009, and "DOJ's Shapiro Discusses Upcoming Revisions to Horizontal Merger Guidelines" in TLJ Daily E-Mail Alert No. 2,015, November 16, 2009. Location: FTC Conference Center, 601 New Jersey Ave., NW.

RESCHEDULED FROM OCTOBER 22. 10:00 AM. The House Commerce Committee's (HCC) Subcommittee on Commerce, Trade and Consumer Protection will hold a hearing on 3993, the "Calling Card Consumer Protection Act". See, notice. Location: Room 2322, Rayburn Building.

10:00 AM. The House Judiciary Committee's (HJC) Subcommittee on the Constitution, Civil Rights, and Civil Liberties will hold a hearing on the Department of Justice's (DOJ) Civil Rights Division. (CRD). Tom Perez, the Assistant Attorney General in charge of the CRD, will testify. See, notice. Location: Room 2141, Rayburn Building.

10:00 AM. The Senate Judiciary Committee (SJC) will hold an executive business meeting. The agenda again includes consideration of S 448 [LOC | WW], the "Free Flow of Information Act of 2009". It also includes consideration of the nomination of Thomas Vanaskie to be a Judge of the U.S. Court of Appeals for the 3rd Circuit, and Louis Butler to be a Judge of the U.S. District Court (WDWisc). The SJC rarely follows is published agendas. See, notice. Location: Room 226, Dirksen Building.

10:00 AM. The Senate Banking Committee will hold a hearing on the nomination of Ben Bernanke to be Chairman of the Board of Governors of the Federal Reserve System. See, notice. Location: Room 106, Dirksen Building.

11:00 AM - 1:00 PM. Day two of a two day meeting of the National Science Foundation's (NSF) Advisory Committee for Cyberinfrastructure. See, notice in the Federal Register, November 16, 2009, Vol. 74, No. 219, at Page 59013. Location: 4201 Wilson Blvd., Room 1235, Arlington, VA.

2:00 PM. The Federal Communications Commission's (FCC) Advisory Committee on Diversity for Communications in the Digital Age will hold a meeting. See, notice in the Federal Register, October 30, 2009, Vol. 74, No. 209, at Pages 56196-56197. Location: FCC, Commission Meeting Room (Room TW-C305), 445 12th St., SW.

2:30 PM. The Federal Trade Commission's (FTC) Bureau of Economics will host a presentation by Uri Simonsohn (Wharton). Location: FTC, ground floor Conference Center, 601 New Jersey Ave., NW.

6:00 - 8:30 PM. The Department of State (DOS), Sweden, Ericsson, and the Federal Communications Bar Association (FCBA) will host an event titled "International Innovation and Broadband". The speakers will be Philip Verveer (DOS Coordinator for International Communications & Information Policy) and Jonas Hafström (Sweden's Ambassador to the U.S.). Registrations and cancellations are due by 5:00 PM on November 30. The price to attend ranges from $10 to $25. See, registration form [PDF]. Location: House of Sweden, 2900 K St., NW.

Day two of a two day event hosted by the Armed Forces Communication and Electronics Association (AFCEA) titled "Cyberspace at the Cross Roads: The Intersection of Cyber, National and Economic Security". Michael Brown (DHS) will speak at 9:10 - 10:00 AM. Robert Butler (Deputy Assistant Secretary of Defense for Cyber and Space Policy), Barbara Hoffman (Department of the Navy), and Robert Rego (Air Force Space Command) will participate on a panel at 1:00 - 2:30 PM. See, schedule. Location: National Conference Center, 18980 Upper Belmont Place, Leesburg, VA.

Day three of a three day workshop hosted by the National Institute of Standards and Technology (NIST) on the ISO/IEC 24727 Identification cards, Integrated circuit card programming interfaces. This is a multi-part standard for interoperable identification, authentication, and signature services for credentials and applications. See, notice in the Federal Register, November 6, 2009, Vol. 74, No. 214, at Pages 57451-57452. Location: National Transportation Safety Board (NTSB) Board Room/Conference Center, 429 L'Enfant Plaza, SW.

Implementation date of the Census Bureau's (CB) "interim final rule" amending the Foreign Trade Regulations (FTR) to eliminate the requirement to report a social security number (SSN) as an identification number when registering to file and filing electronic export information in the Automated Export System (AES) or AESDirect. See, notice in the Federal Register, August 5, 2009, Vol. 74, No. 149, at Pages 38914-38916.

9:00 AM - 4:00 PM. The Federal Communications Commission's (FCC) Consumer Advisory Committee (CAC) will meet. The agenda includes discussions of captioned telephony, digital closed captioning and video description, CG Docket No. 09-158 (regulation of billing information), web media design, and the FCC's Electronic Comment Filing System (ECFS). See, FCC notice and notice in the Federal Register, November 19, 2009, Vol. 74, No. 222, at Pages 59977-59978. Location: FCC, Commission Meeting Room, 445 12th St., SW.

3:00 - 4:00 PM. The Department of Homeland Security's (DHS) Homeland Security Advisory Council (HSAC) will meet by teleconference. See, notice in the Federal Register, November 10, 2009, Vol. 74, No. 216, at Page 58036.

Deadline to submit reply comments to the Copyright Office and the U.S. Patent and Trademark Office ((USPTO) in response to the Notice of Inquiry (NOI) regarding the draft treaty [PDF] proposed to the World Intellectual Property Organization's (WIPO) Standing Committee on Copyright and Related Rights (SCCR) by Brazil, Ecuador, and Paraguay. See, notice in the Federal Register, October 13, 2009, Vol. 74, No. 196, at Pages 52507-52509, and story titled "Copyright Office and USPTO Issue NOI Regarding Treaty Based Exemption to Anti-Circumvention Provisions" in TLJ Daily E-Mail Alert No. 2,003, October 15, 2009.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Public Notice (PN) [4 pages in PDF] that requests comments to refresh its record regarding wireless location tracking accuracy and reliability. See, notice in the Federal Register, November 18, 2009, Vol. 74, No. 221, at Pages 59539-59540. This PN was released on November 6, 2009. It is DA 09-2397 in PS Docket No. 07-114. See also, story titled "FCC Extends E911 Location Tracking Rules to Interconnected VOIP" in TLJ Daily E-Mail Alert No. 1,589, May 31, 2007, and story titled "FCC Adopts E911 Location Tracking Accuracy Benchmarks" in TLJ Daily E-Mail Alert No. 1,640, September 17, 2007, and story titled "FCC Files Opposition to Stay in Challenge to Its Latest Wireless E911 Location Tracking Mandates" in TLJ Daily E-Mail Alert No. 1,729, March 11, 2008, and story titled "FCC Seeks Comments on Wireless Location Tracking Rules" in TLJ Daily E-Mail Alert No. 1,833, September 26, 2008.

The House will meet the week of December 7-11. See, Rep. Hoyer's release.

10:00 AM. The Federal Communications Commission's (FCC) Communications Security, Reliability, and Interoperability Council (CSRIC) will hold its first meeting. See, FCC notice and notice in the Federal Register, November 17, 2009, Vol. 74, No. 220, at Pages 59183-59184. Location: FCC, Commission Meeting Room, 445 12th St., SW.

8:30 AM - 5:45 PM. The Federal Trade Commission (FTC) will host a public workshop titled "Exploring Privacy". See, release and event web page. Location: FTC Conference Center, 601 New Jersey Ave., NW.

The Intellectual Property Owners' Association (IPO) will host an event titled "20th Annual Conference on U.S. Patent and Trademark Law and Practice". See, notice. Location: Ronald Reagan Building and International Trade Center.

Deadline to submit comments to the Federal Communications Commission (FCC) in response to its Public Notice [9 pages in PDF] regarding universal service and intercarrier compensation. This document states that its purpose is to assist the FCC in drafting a document titled "National Broadband Plan". See also, story titled "FCC Requests NBP Comments on Universal Service and Intercarrier Compensation" in TLJ Daily E-Mail Alert No. 2,016, November 17, 2009.

EXTENDED FROM NOVEMBER 30. Extended deadline to submit comments to the Federal Trade Commission (FTC) in response to its notice of proposed rulemaking (NPRM) regarding deceptive marketing of credit reports. See, notice of extension [PDF] and notice of extension in the Federal Register, November 27, 2009, Vol. 74, No. 227, at Pages 62260-62261.

8:30 AM - 3:15 PM. The National Institute of Standards and Technology's (NIST) Technology Innovation Program (TIP) Advisory Board will meet. See, notice in the Federal Register, November 17, 2009, Vol. 74, No. 220, at Pages 59133-59134. Location: NIST, Administration Building, Employees' Lounge, Gaithersburg, MD.

9:00 AM - 6:00 PM. Day one of a three day conference hosted by the Organization of Economic Cooperation and Development (OECD) and Federal Trade Commission (FTC) titled "Empowering E-Consumers: Strengthening Consumer Protection in the Internet Economy". The deadline to request permission to attend is November 27. Attendance is free. The event will be webcast. See, conference web site and schedule. Location: FTC Conference Center, 601 New Jersey Ave.,  NW.

9:00 AM - 5:00 PM. The American Antitrust Institute (AAI) will host an event titled "Invitational Symposium on the Future of Private Antitrust Enforcement". At 9:30 AM there will be a panel titled "Expanding Empagran". The speakers will include James Fredricks (DOJ Antitrust Division). At 11:00 AM there will be a panel titled "The Legality of Reverse Payments". The speakers will include Seth Bloom (Senate Judiciary Committee staff). Rep. Hank Johnson (D-GA) will give the lunch speech. At 1:45 PM there will be a panel titled "Extending the ACPERA". The speakers will include Scott Hammond (DOJ's Antitrust Division). At 2:30 PM there will be a panel titled "Class Certification in the U.S. and Abroad". At 3:30 PM there will be a panel titled "Twombly's Children". See, Supreme Court's 2007 opinion in Bell Atlantic v. Twombly, 550 U.S. 544, and story titled "Supreme Court Rules in Bell Atlantic v. Twombly" in TLJ Daily E-Mail Alert No. 1,585, May 22, 2007. See, AAI notice. Location: National Press Club, 13th floor, 529 14th St., NW.

2:00 - 3:30 PM. The Department of Justice's (DOJ) Antitrust Division's Economic Analysis Group will host a presentation by Ron Goettler (University of Chicago) and Brett Gordon (Columbia University) titled "Competition and Innovation in the Microprocessor Industry: Does AMD spur Intel to innovate more?". See, paper [53 pages in PDF] with the same title. To request permission to attend, contact Patrick Greenlee at 202-307-3745 or atr dot eag at usdoj dot gov. Location: DOJ, Liberty Square Building, 450 5th St., NW.

8:30 AM. Day one of a two day partially closed meeting of the Department of Commerce's (DOC) Bureau of Industry and Security's (BIS) Emerging Technology and Research Advisory Committee (ETRAC). The agenda for the open portion of this meeting includes a discussion of "Deemed Export Control Methodology". See, notice in the Federal Register, November 24, 2009, Vol. 74, No. 225, at Page 61333. Location: Room 6087B, DOC, Hoover Building, 14th Street between Pennsylvania and Constitution Avenues, NW.

8:30 AM - 3:15 PM. The National Institute of Standards and Technology's (NIST) Malcolm Baldrige National Quality Award Board of Overseers will meet. See, notice in the Federal Register, November 17, 2009, Vol. 74, No. 220, at Page 59133. Location: NIST, Administration Building, Lecture Room A, Gaithersburg, MD.

9:00 AM - 5:45 PM. Day two of a three day conference hosted by the Organization of Economic Cooperation and Development (OECD) and Federal Trade Commission (FTC) titled "Empowering E-Consumers: Strengthening Consumer Protection in the Internet Economy". The deadline to request permission to attend is November 27. Attendance is free. The event will be webcast. See, conference web site and schedule. Location: FTC Conference Center, 601 New Jersey Ave., NW.

9:00 AM. The Department of Commerce's (DOC) Bureau of Industry and Security's (BIS) Regulations and Procedures Technical Advisory Committee will hold a partially closed meeting. See, notice in the Federal Register, November 25, 2009, Vol. 74, No. 226, at Pages 61662-61663. Location: Room 3884, DOC, Hoover Building, 14th Street between Pennsylvania and Constitution Avenues, NW.

9:30 AM - 2:00 PM. The National Telecommunications and Information Administration's (NTIA) Commerce Spectrum Management Advisory Committee will meet. See, notice in the Federal Register, November 23, 2009, Vol. 74, No. 224, at Pages 61113-61114. Location: Room 4813, DOC, Hoover Building, 14th Street between Pennsylvania and Constitution Avenues, NW.

10:00 AM. The Senate Judiciary Committee (SJC) will hold a hearing titled "Oversight of the Department of Homeland Security". The witness will be Janet Napolitano, Secretary of Homeland Security. See, notice. Location: Room 216, Hart Building.

2:30 PM. The Senate Commerce Committee (SCC) will hold a hearing titled "Research Parks and Job Creation: Innovation Through Cooperation". See, notice. Location: Room 253, Russell Building.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Public Notice [PDF] that requests comments regarding "identifying and remedying barriers to broadband deployment and adoption on Tribal lands". This is to aid the FCC in drafting its "National Broadband Plan". This item is DA 09-2093 in GN Docket Nos. 09-47, 09-51, and 09-137.

8:30 AM. Day two of a two day partially closed meeting of the Department of Commerce's (DOC) Bureau of Industry and Security's (BIS) Emerging Technology and Research Advisory Committee (ETRAC). The agenda for the open portion of this meeting includes a discussion of "Deemed Export Control Methodology". See, notice in the Federal Register, November 24, 2009, Vol. 74, No. 225, at Page 61333. Location: Room 3884, DOC, Hoover Building, 14th Street between Pennsylvania and Constitution Avenues, NW.

9:00 AM - 5:45 PM. Day three of a three day conference hosted by the Organization of Economic Cooperation and Development (OECD) and Federal Trade Commission (FTC) titled "Empowering E-Consumers: Strengthening Consumer Protection in the Internet Economy". The deadline to request permission to attend is November 27. Attendance is free. The event will be webcast. See, conference web site and schedule. Location: FTC Conference Center, 601 New Jersey Ave., NW.

10:00 AM. The Department of Commerce's (DOC) Bureau of Industry and Security's (BIS) Materials Technical Advisory Committee will meet. See, notice in the Federal Register, November 24, 2009, Vol. 74, No. 225, at Pages 61332-61333. Location: Room 6087B, DOC, Hoover Building, 14th Street between Pennsylvania and Constitution Avenues, NW.

6:00 PM. There will be an event titled "23rd Annual Chairman's Dinner". The reception begins at 6:00 PM. Dinner is at 7:30 PM. FCC Chairman Julius Genachowski will speak. Prices vary. See, registration form [PDF]. Location: Washington Hilton Hotel.

Deadline to submit comments to the Federal Communications Commission (FCC) in response to its Public Notice [4 pages in PDF] regarding online voter registration, online voting, and use to information technologies to make governmental meetings and processes more accessible. This item is DA 09-2431 in GN Docket Nos. 09-47, 09-51, and 09-137. This document states that its purpose is to assist the FCC in drafting a document titled "National Broadband Plan". See also, story titled "FCC Requests Comments on Voting and Democracy" in TLJ Daily E-Mail Alert No. 2,016, November 17, 2009.

12/2. Dennis Wharton, EVP of the National Association of Broadcasters (NAB), released a statement regarding the Federal Communications Commission's Public Notice (PN) [5 pages in PDF] that requests public comments regarding the possibility of reallocating television spectrum for wireless broadband. See, story titled "FCC Seeks Comments on Reallocation of Spectrum from TV to Wireless Broadband" in TLJ Daily E-Mail Alert No. 2,019, December 2, 2009. Wharton wrote that "Broadband deployment to unserved areas is a worthy goal, and broadcasters believe we can help the FCC accomplish its mission without stifling growth opportunities of free and local TV stations and the millions of viewers that we serve. We would hope policymakers would remember that after spending $15 billion upgrading to the next generation of television, broadcasters just returned to the government more than a quarter of the spectrum used for free and local TV service."

11/30. The Government Accountability Office (GAO) released a report [81 pages in PDF] titled "Information Technology: Postal Service Needs to Strengthen System Acquisition and Management Capabilities to Improve Its Intelligent Mail® Full Service Program".

11/25. The National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) released its draft NIST IR-7657 [32 pages in PDF] titled "Privilege Management". The deadline to submit comments is Monday, January 25, 2010.

11/20. The Board of Governors of the Federal Reserve System published a notice in the Federal Register that announced, describes, recites, and sets the comment deadline for, its changes to its rules and staff commentary regarding limitations on issuers' ability to impose dormancy, inactivity, or service fees for certain prepaid products, such as store gift cards and pre-paid cards. These rules continue to exempt wireless phone cards, pre-paid VOIP cards, and related telecommunications products. The deadline to submit comments is December 21, 2009. See, Federal Register, November 20, 2009, Vol. 74, No. 223, at Pages 60985-61012. These rules implement the Electronic Funds Transfer Act (EFTA), which is codified at 15 U.S.C. § 1693 et seq., and which was recently amended by the Credit Card Accountability Responsibility and Disclosure Act of 2009 (Credit CARD Act). This was HR 627 [LOC | WW]. President Obama signed it into law on May 22, 2009. It is now Public Law No. 111-24.

11/17. The National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) released its draft SP 800-37 Rev. 1 [88 pages in PDF] titled "Guide for Applying the Risk Management Framework to Federal Information Systems: A Security Life Cycle Approach". The deadline to submit comments is Thursday, December 31, 2010.

11/17. The Internal Revenue Service (IRS) published one notice in the Federal Register that announces, describes, recites, and sets the effective and applicability dates for, its amended rules pertaining to taxation of employee stock option grants. See, Federal Register, November 17, 2009, Vol. 74, No. 220, at Pages 59074-59087. The IRS published a second notice in the Federal Register that announces, describes, recites, and sets the effective and applicability dates for, its amended rules regarding the information reporting requirements of corporations that issue stock options. See, Federal Register, November 17, 2009, Vol. 74, No. 220, at Pages 59087-59092.

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