4/6. The U.S. Court of Appeals (DCCir) issued its opinion [36 pages in PDF] in Comcast v. FCC, vacating the August 2008 order of the Federal Communications Commission (FCC) that asserted authority to regulate the network management practices of broadband internet access providers. The Court held that the FCC lacks statutory authority to do this.

This opinion is significant, not just because it overturns the Comcast order, and because it holds that the FCC currently lacks statutory authority to regulate the network management practices of broadband internet access providers, but because the FCC's arguments that it has authority to writes rules in this area are the same arguments rejected in the just decided case.

On October 22, 2009, the FCC adopted and released its Notice of Proposed Rulemaking (NPRM) [107 pages in PDF] that proposes to regulate the network management practices of broadband internet access service providers. This proceeding is titled "In the Matter of Preserving the Open Internet Broadband Industry Practices". This NPRM is FCC 09-93 in GN Docket No. 09-191 and WC Docket No. 07-52.

TLJ asked Austin Schlick, the FCC's General Counsel, at the FCC's meeting on October 22, 2009, what is the statutory authority for the NPRM. He said, "read our brief" in the Comcast case. See, stories titled "FCC Adopts Internet Regulation NPRM" and "Statutory Authority and Ancillary Jurisdiction", and related stories, in TLJ Daily E-Mail Alert No. 2,008, October 23, 2009.

That is, the internet regulation rules proposed by the FCC on October 22, 2009, if promulgated, are at risk of being vacated on judicial review.

There remains a strategy for the FCC to assert statutory authority to regulate the network management practices of broadband internet access providers. That would be to reverse its 2002 cable modem order, in which it declared that cable modem service is an information service, not a cable service, and that there is no separate offering of telecommunications service. This strategy would further include reclassifying broadband internet access via cable as a Title II telecommunications service. This strategy would also entail revisiting the other FCC declaratory rulings classifying broadband internet access via wireline, wireless, and other platforms as Title II telecommunications service.

Summary of Opinion. It was not in dispute that the FCC lacked any express statutory authority to regulate the network management practices of broadband internet access providers. Rather, the FCC argued that it had ancillary authority.

The Court rejected this argument, holding, as it did in American Library Association v. FCC, the 2005 opinion overturning the FCC's broadcast flag rules, that to sustain its argument, the FCC must tie its claim of ancillary authority over Comcast's internet service to a statutorily mandated responsibility.

The Court of Appeals first summarized its holding. "In this case we must decide whether the Federal Communications Commission has authority to regulate an Internet service provider’s network management practices. Acknowledging that it has no express statutory authority over such practices, the Commission relies on section 4(i) of the Communications Act of 1934, which authorizes the Commission to ``perform any and all acts, make such rules and regulations, and issue such orders, not inconsistent with this chapter, as may be necessary in the execution of its functions.´´ 47 U.S.C. § 154(i). The Commission may exercise this ``ancillary´´ authority only if it demonstrates that its action -- here barring Comcast from interfering with its customers’ use of peer-to-peer networking applications -- is ``reasonably ancillary to the ... effective performance of its statutorily mandated responsibilities.´´" (Hyperlink added.)

On May 6, 2005, the U.S.Court of Appeals (DCCir) issued its opinion [34 pages in PDF] in American Library Association v. FCC, overturning the FCC's broadcast flag rules. It held that the FCC did not have authority under Title I to promulgate those rules. See also, story titled "DC Circuit Reverses FCC's Broadcast Flag Rules" in TLJ Daily E-Mail Alert No. 1,131, May 9, 2005. That opinion is also reported at 406 F.3d 689.

The Court of Appeals continued in its summary of its holding that the FCC "has failed to make that showing. It relies principally on several Congressional statements of policy, but under Supreme Court and D.C. Circuit case law statements of policy, by themselves, do not create ``statutorily mandated responsibilities.´´ The Commission also relies on various provisions of the Communications Act that do create such responsibilities, but for a variety of substantive and procedural reasons those provisions cannot support its exercise of ancillary authority over Comcast’s network management practices. We therefore grant Comcast’s petition for review and vacate the challenged order."

The Court noted that the Communications Act gives the FCC "express and expansive authority to regulate common carrier services, including landline telephony, ... (Title II of the Act); radio transmissions, including broadcast television, radio, and cellular telephony, ... (Title III); and ``cable services,´´ including cable television, ... (Title VI)." (Parentheses in original.)

The Court also wrote that in the "still-binding 2002 Cable Modem Order, the Commission ruled that cable Internet service is neither a ``telecommunications service´´ covered by Title II of the Communications Act nor a ``cable service´´ covered by Title VI."

On March 14, 2002, the FCC adopted a Declaratory Ruling and Notice of Proposed Rulemaking [75 pages in PDF], which is also known as the "Cable Modem Order". The Declaratory Ruling (DR) component of this item states that "we conclude that cable modem service, as it is currently offered, is properly classified as an interstate information service, not as a cable service, and that there is no separate offering of telecommunications service." This is FCC 02-77 in Docket No. 00-185 and Docket No. 02-52. See, story title "FCC Declares Cable Internet Access an Interstate Information Service" in TLJ Daily E-Mail Alert No. 389, March 15, 2002.

On June 27, 2005, the Supreme Court issued its opinion [59 pages in PDF] in NCTA v. Brand X upholding this DR. See, story titled "Supreme Court Rules in Brand X Case" in TLJ Daily E-Mail Alert No. 1,163, June 28, 2005.

The Court of Appeals then noted that the FCC relies on the theory of "ancillary" authority. It "rests its assertion of authority over Comcast’s network management practices on the broad language of section 4(i) of the Act: ``The Commission may perform any and all acts, make such rules and regulations, and issue such orders, not inconsistent with this chapter, as may be necessary in the execution of its functions´´".

The Court wrote in American Library Association v. FCC that the FCC "may exercise ancillary jurisdiction only when two conditions are satisfied: (1) the Commission’s general jurisdictional grant under Title I covers the regulated subject and (2) the regulations are reasonably ancillary to the Commission’s effective performance of its statutorily mandated responsibilities."

The Court wrote in the present opinion that the FCC meets first prong, and that this case turns on the second prong of the ALA test.

The FCC cited statutory sections that the Court concluded were statements of policy that delegated no legislative authority to the FCC, such as those in 47 U.S.C. § 230(b).

The Court held that "policy statements alone cannot provide the basis for the Commission’s exercise of ancillary authority".

It continued. "Policy statements are just that -- statements of policy. They are not delegations of regulatory authority. To be sure, statements of congressional policy can help delineate the contours of statutory authority. Consider, for example, the various services over which the Commission enjoys express statutory authority."

The Court cited three examples. "When exercising its Title II authority to set ``just and reasonable´´ rates for phone service, 47 U.S.C. § 201(b), or its Title III authority to grant broadcasting licenses in the ``public convenience, interest, or necessity,´´ id. § 307(a), or its Title VI authority to prohibit ``unfair methods of competition´´ by cable operators that limit consumer access to certain types of television programming, id. § 548(b), the Commission must bear in mind section 1's objective of ``Nation-wide ... wire and radio communication service ... at reasonable charges,´´ id. § 151." (Hyperlinks added.)

The Court added, "So too with respect to the Commission’s section 4(i) ancillary authority. Although policy statements may illuminate that authority, it is Title II, III, or VI to which the authority must ultimately be ancillary."

The Court reasoned that the FCC "cites neither section 230(b) nor section 1 to shed light on any express statutory delegation of authority found in Title II, III, VI, or, for that matter, anywhere else."

The Court also noted that if the FCC's argument that a Congressional statement of policy creates statutorily mandated responsibilities were accepted, "it would virtually free the Commission from its congressional tether".

The Court next rejected the FCC's argument that it has ancillary authority here under Section 706 of the Telecommunications Act of 1996, at 47 U.S.C. § 1302(a). It provides that the FCC "shall encourage the deployment on a reasonable and timely basis of advanced telecommunications capability to all Americans ... by utilizing ... price cap regulation, regulatory forbearance, measures that promote competition in the local telecommunications market, or other regulating methods that remove barriers to infrastructure investment."

The Court concluded that since the FCC concluded in 1998 that this section "does not constitute an independent grant of authority", it cannot now assert the opposite, relying upon the Supreme Court's April 28, 2009, opinion in FCC v. Fox Television Stations. This is also known as the fleeting expletives case. See, story titled "Supreme Court Reverses in FCC v. Fox" in TLJ Daily E-Mail Alert No. 1,932, April 28, 2009.

The Court of Appeals wrote, quoting the Fox opinion, that "Because the Commission has never questioned, let alone overruled, that understanding of section 706, and because agencies ``may not ... depart from a prior policy sub silentio,´´ ... the Commission remains bound by its earlier conclusion that section 706 grants no regulatory authority."

The Court also rejected the FCC's arguments that other statutory sections gave the FCC ancillary authority to issue its Comcast order.

The Court also rejected the FCC's argument that Comcast is estopped from arguing that the FCC lacks authority because the FCC asserts that Comcast took a contrary position in an earlier court proceeding.

Finally, the Court rejected the FCC's argument that the Supreme Court already decided the ancillary authority issue in the present case. The Court wrote that the FCC "cannot justify regulating the network management practices of cable Internet providers simply by citing Brand X's recognition that it may have ancillary authority to require such providers to unbundle the components of their services."

Case Background. The Congress has enacted no statute that prohibits any network management practices of broadband internet access providers. Nor has the Congress enacted any statute that delegates authority to the FCC to regulate the network management practices of broadband internet access providers.

The FCC adopted a policy statement [3 pages in PDF] on August 5, 2005, that 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.)

Tom Navin, then Chief of the Wireline Competition Bureau (WCB), responded to questions at a news conference on August 5, 2005. He stated that the policy statement is "principles", and that "they are not enforceable".

See, stories titled "FCC Adopts a Policy Statement Regarding Network Neutrality" in TLJ Daily E-Mail Alert No. 1,190, August 8, 2005, and "FCC Releases Policy Statement Regarding Internet Regulation" in TLJ Daily E-Mail Alert No. 1,221, September 26, 2005.

On November 1, 2007, the Public Knowledge (PK) and Free Press (FP) filed with the FCC a document [48 pages in PDF] captioned "Formal Complaint of Free Press and Public Knowledge Against Comcast Corporation For Secretly Degrading Peer-to-Peer Applications".

This complaint alleged that Comcast interfered with its subscribers' use of BitTorrent. See, story titled "Free Press Files Complaint with FCC Alleging that Comcast Is Violating 2005 Policy Statement" in TLJ Daily E-Mail Alert No. 1,669, November 5, 2007.

On March 27, 2008, Comcast reached an agreement with BitTorrent. Both companies also agreed that there is no need for government intervention. See, story titled "Comcast and BitTorrent Reach Accord on Network Management Practices" in TLJ Daily E-Mail Alert No. 1,738, March 27, 2008.

On April 15, 2008, Comcast and Pando Networks announced in a joint release an industry effort, including ISPs and P2P services, to discuss processes and practices ISPs should use to manage P2P applications.

FCC Comcast Order. On August 1, 2008, the FCC adopted its Comcast order [67 pages in PDF] asserting adjudicatory authority to enforce its 2005 policy statement, and asserting authority to regulate the network management practices of broadband service providers. This is the order which the Court of Appeals has vacated.

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 of this order on August 20, 2008. It is FCC 08-183 in Docket No. 07-52.

Former FCC Chairman Kevin Martin, a Republican, joined with Democrats Michael Copps and Jonathan Adelstein. Republican Commissioners Robert McDowell and Deborah Tate dissented.

Comcast filed a petition for review with the Court of Appeals. See, story titled "Comcast Files Petition for Review of FCC's Network Management Practices Order" in TLJ Daily E-Mail Alert No. 1,821, September 4, 2008.

The National Cable and Telecommunications Association (NCTA), Free Press, and others intervened. See, story titled "NCTA Intervenes in Comcast's Challenge to FCC Network Management Practices Order" in TLJ Daily E-Mail Alert No. 1,822, September 8, 2008. The Progress & Freedom Foundation (PFF) filed an amicus brief in support of Comcast.

This case is Comcast Corporation v. FCC and USA, U.S. Court of Appeals for the District of Columbia, App. Ct. No. 08-1291. Judge Tatel wrote the opinion of the Court of Appeals, in which Judges Sentelle and Randolph joined.

4/6. Federal Communications Commission (FCC) Commissioners offered comments on the U.S. Court of Appeals' (DCCir) April 6, 2010, opinion [36 pages in PDF] in Comcast v. FCC.

Commissioner Michael Copps, who voted for the just overturned order, stated in a release that "Today's decision is not just a blow to the FCC -- it's a blow to all Americans who rely on an open Internet that serves all comers without discrimination. Since 2002, I have warned about the dangers of moving the transmission component of broadband outside of the statutory framework that applies to telecommunications carriers. The only way the Commission can make
lemonade out of this lemon of a decision is to do now what should have been done years ago: treat broadband as the telecommunications service that it is."

Copps (at right) stated that "We are dealing with a broadband information ecosystem where many parts come together to form a complex, synergistic and interdependent whole."

He continued that "It is time that we stop doing the ``ancillary authority´´ dance and instead rely on the statute Congress gave us to stand on solid legal ground in safeguarding the benefits of the Internet for American consumers. We should straighten this broadband classification mess out before the first day of summer."

Commissioner Mignon Clyburn, who was not a member of the Commission in 2008, stated in a release that "The Court of Appeals has made clear that, in its view, the Commission does not have the authority to enforce its prior framework designed to preserve an open Internet. The Court's decision, however, does not change the importance of our goal nor should it weaken our resolve. Indeed, we now have the kind of guidance that will enable us to develop the most effective and legally sound rules of the road to preserve Internet openness and to achieve other important goals set forth in the National Broadband Plan. I look forward to working with my colleagues and industry to ensure that we are able to protect consumers and cultivate a vibrant Internet ecosystem where economic and social opportunities can continue to flourish."

Commissioner Robert McDowell, who voted against the 2008 order, stated in a release that "I am pleased that today's court order makes clear that Title I of the Communications Act provides the FCC with no authority to regulate the network management practices of an Internet service provider. I hope this decision will provide certainty in the marketplace and will not lead to the unnecessary classification of broadband service as a monopoly phone service under Title II of the Act."

Commissioner Meredith Baker, who was not a member of the Commission in 2008, stated in a release that "I am pleased that the decision of the U.S. Court of Appeals for the D.C. Circuit emphasizes the limits of the Commission’s authority to regulate the Internet. The D.C. Circuit’s strong words today remind us that as an independent agency, we must always be constrained by the statute. We stray from it at our peril. With regard to the substantive policy at issue in this case—net neutrality -- I would oppose calls to use the court’s decision as a pretext to reclassify broadband Internet access services under monopolyera Title II regulation."

FCC Chairman Julius Genachowski did not issue a statement. However, the public relations office released a statement of its Jen Howard: "The FCC is firmly committed to promoting an open Internet and to policies that will bring the enormous benefits of broadband to all Americans. It will rest these policies -- all of which will be designed to foster innovation and investment while protecting and empowering consumers -- on a solid legal foundation. "Today's court decision invalidated the prior Commission's approach to preserving an open Internet. But the Court in no way disagreed with the importance of preserving a free and open Internet; nor did it close the door to other methods for achieving this important end."

4/6. Many members of Congress offered comments on the U.S. Court of Appeals' (DCCir) April 6, 2010, opinion [36 pages in PDF] in Comcast v. FCC.

Rep. Henry Waxman (D-CA), the Chairman of the House Commerce Committee (HCC), stated in a release that "The decision could have broad impacts with potentially unfortunate results for consumers. I am committed to working with the Commission, industry, and public interest groups to ensure that the Commission has appropriate legal authority to protect consumers and implement its important new broadband plan."

Rep. Rick Boucher (D-VA) is the Chairman of the HCC's Subcommittee on Communications, Technology and the Internet (SCTI).

Rep. Cliff Stearns (R-FL), the ranking Republican on the SCTI, stated in a release that "The Internet has flourished under market forces and without heavy-handed regulation ... and this decision that the Federal Communications Commission (FCC) failed to demonstrate regulatory authority will help maintain Internet freedom".

He also stated that "This case demonstrates the legal and policy dangers of overreaching by the FCC" in the rulemaking proceeding commenced on October 22, 2009.

Rep. Ed Markey (D-MA), a leading proponent of regulating internet access providers, stated in a release that "Today the Court today threw out the previous Commission's shoddy legal theories ... In light of the Court's ruling, I encourage the current Commission to take any actions necessary to ensure that consumers and competition are protected on the Internet. It is important to note that the Court neither called into question the wisdom of network neutrality policies nor did it exonerate Comcast for its unreasonable interference with lawful consumer Internet use."

He continued that "I will also continue to work with my colleagues in Congress to provide the Commission any additional authority it may need to ensure the openness of the Internet for consumers, innovators and investors through passage of" HR 3458 [LOC | WW], the "Internet Freedom Preservation Act of 2009".

Rep. Joe Barton (R-TX), the ranking Republican on the HCC, stated in a release that "the FCC should not reclassify information services as Title 2 services. The guiding principle is already explicit in the 1996 Telecommunications Act, where the government is directed `to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation.´"

Rep. Fred Upton (R-MI), a senior Republican on the HCC and SCTI, stated in a release that "Today's decision is a victory for innovation and competition, a victory for broadband development, and most importantly a victory for every American -- now let's allow consumers to write the next chapter in the evolution of broadband."

Rep. Upton (at right) also stated that "I also hope that the court’s decision will not lead the FCC down the misguided path of attempting to regulate broadband providers under Title II. Such an action would be illegal, and would simply result in needless litigation, the outcome of which would most likely resemble what transpired today. To the extent the FCC seeks further guidance on its authority over network management, such guidance can only come from Congress."

Sen. John Rockefeller (D-WV) is the Chairman of the Senate Commerce Committee (SCC).

Sen. John Kerry (D-MA), a senior member of the SCC, stated in a release that "This is a history-making decision. It appears to vacate the authority of the FCC to conduct oversight over broadband service and the telephone and cable giants that own the wires"

Sen. Kerry (at left) continued that "I am not advocating that the FCC reclassify broadband services as a result of this decision, but I absolutely believe they maintain that legal authority and it would be entirely consistent with the history of communications law in our country if they did. In fact, in cases involving FCC classification of services, the Supreme Court has always deferred to the agency. It is likely to continue doing so if the agency reversed and provided a strong rationale for updating the Bush era classification of broadband service."

He added that "Without oversight, market giants would be free to do as they wish even if their actions hindered the free flow of information, treated consumers unfairly, or discriminated against content creators."

He also stated that "In the long run, we may need a new legal and regulatory framework for broadband, especially if reclassifying broadband as a telecommunications service proves too difficult to administer. I am willing to work with all interested parties on the construction of that framework."

He also asserted that in 1996 "the Congress did not intend for cable and telephone broadband internet service providers to fall outside the authority of the FCC to protect consumers, protect against discrimination, provide public safety officials with priority access to service, ensure that people with disabilities are given consideration, or ensure that modern communications are available to everyone in America."

Sen. Kay Hutchison (R-TX), the ranking Republican on the SCC, stated in a release that "This decision highlights what many already believed, the FCC does not have authority to act in this area".

She added that "In light of this important court decision, policy makers should assess whether there should be any regulatory role for the agency as it relates to the Internet and how private companies manage their investment. It would be wrong to double down on excessive and burdensome regulations, and I hope the FCC Chairman will now reconsider his decision to pursue expanded commission authority over broadband services in current proceedings before the agency.  The Internet has grown and flourished without federal regulations because it has been able to evolve to meet rapid changes without government roadblocks holding up progress."

4/6. Some supporters of the Federal Communications Commission's (FCC) just vacated Comcast order, and FCC regulation of the network management practices of broadband internet access providers, argued in the aftermath of the April 6, 2010, Court of Appeals opinion [36 pages in PDF] in Comcast v. FCC, that the Congress should give the FCC further statutory authority.

It is doubtful that such a bill could be enacted.

Rep. Ed Markey (D-MA) stated in a release that "I will also continue to work with my colleagues in Congress to provide the Commission any additional authority it may need". He is the sponsor of such a bill, HR 3458 [LOC | WW], the "Internet Freedom Preservation Act of 2009".

Leslie Harris, head of the Center for Democracy and Technology (CDT), stated in a release that "Either the FCC or Congress is going to have to go back to the drawing board and reconsider the authority that the agency can exercise over 'last mile' providers of Internet access".

Network neutrality amendments fell far short of approval in roll call votes in the House Commerce Committee (HCC) and its Subcommittee on Telecommunications and the Internet, in the 109th Congress.

TLJ examined the House and HCC membership after the 2006 elections, in which the Democrats took control, and offered the analysis that at that time it was unlikely that a network neutrality mandate, such as those voted upon in the 109th Congress, could be approved by either the HCC or by the House, despite the change of party control and new members. See, story titled "Analysis of Support for a Network Neutrality Mandate in the House and Senate" in TLJ Daily E-Mail Alert No. 1,532, February 5, 2007.

Little has changed since then. New and abusive industry practices that might have swayed Congressional opinion towards regulation have not emerged.

In contrast, Rep. Markey, who has been the leading proponent of network neutrality legislation, later gave up his Chairmanship of the HCC's telecom subcommittee. He is now the Chairman of the HCC's Subcommittee on Energy and the Environment.

Opposition in the Congress to legislation, combined with the complexity of the issue, and the proximity of midterm elections, make passage of a bill giving the FCC the authority that the Court of Appeals held it lacks, unlikely in the 111th Congress.

The House will not meet the week of April 5-9, 2010. See, 2010 House calendar.

The Senate will not meet the week of April 5-9, 2010. See, 2010 Senate calendar.

8:00 AM - 4:30 PM. The Department of Transportation's (DOT) Intelligent Transportation Systems Program Advisory Committee (ITSPAC) will meet. See, notice in the Federal Register, March 22, 2010, Vol. 75, No. 54, at Pages 13643-13644. Location: Oklahoma Conference Room, DOT West Building, 1200 New Jersey Ave., SE.

9:00 AM - 5:00 PM. Day one of a three day meeting of the National Institute of Standards and Technology's (NIST) Information Security and Privacy Advisory Board (ISPAB). The agenda includes "Cloud Computing Implementations", "Health IT", "OpenID", "Pending Cyber Security Legislation", "key escrow", "SCAP", "Cyber Coordinator Discussion", "National Protection and Programs Directorate Discussion", and "Security Issues in Broadband Plan". SCAP is Security Content Automation Protocol. See, NIST's SCAP web site. See, notice in the Federal Register, March 19, 2010, Vol. 75, No. 53, Pages 13258-13259. Location: Washington Marriott Wardman Park Conference Center, 2660 Woodley Road, NW.

9:00 AM - 4:00 PM. Day one of a two day meeting of the National Archives and Records Administration's (NARA) Advisory Committee on the Electronic Records Archives (ACERA). See, notice in the Federal Register, March 16, 2010, Vol. 75, No. 50, at Pages 12573-12574. Location: 700 Pennsylvania Ave., NW.

10:00 AM. The Federal Communications Commission (FCC) will hold a workshop regarding legal and technical issues associated with the development and deployment of an agency wide Consolidated Licensing System (CLS). See, Public Notice. Location: FCC, FCC’s Commission Meeting Room (Room TW-C305), 445 12th St., SW.

12:00 NOON - 2:30 PM. The Federal Communications Commission (FCC) will hold an event titled "An Overview of the Federal Communications Commission National Broadband Plan". The speakers will be the FCC's David Furth (Public Safety and Homeland Security Bureau), Brian David (OSP), Eugene Huang (OSP), Joy Ragsdale (PSHSB), Thomas Koutsky (OSP), and Robert Curtis (OSP). The price to attend ranges from $0 to $40. Lunch will not be served. The DC Bar Association states that this is a DC Bar event. The DC Bar has a history of excluding reporters from its events. See, notice. Location: DC Bar, 1101 K St., NW.

Day one of a four day event hosted by the American Bar Association's (ABA) Section of Intellectual Property Law titled "Annual Intellectual Property Law Conference". See, notice. Location: Crystal Gateway Marriott, Arlington, VA.

Deadline to submit initial comments to the Federal Communications Commission (FCC) regarding its report to Congress regarding the Open-Market Reorganization for the Betterment of International Telecommunications Act (ORBIT Act). See, notice [PDF]. This proceeding is IB Docket No. 10-70.

8:00 AM - 5:00 PM. Day two of a three day meeting of the National Institute of Standards and Technology's (NIST) Information Security and Privacy Advisory Board (ISPAB). See, notice in the Federal Register, March 19, 2010, Vol. 75, No. 53, Pages 13258-13259. Location: Washington Marriott Wardman Park Conference Center, 2660 Woodley Road, NW.

9:00 AM. The Department of Commerce's (DOC) Bureau of Industry and Security's (BIS) Materials Processing Equipment Technical Advisory Committee will hold a partially closed meeting. See, notice in the Federal Register, March 25, 2010, Vol. 75, No. 57, at Page 14426. Location: Room 3884, DOC, Hoover Building, 14th Street between Pennsylvania and Constitution Aves., NW.

9:00 AM - 4:00 PM. Day two of a two day meeting of the National Archives and Records Administration's (NARA) Advisory Committee on the Electronic Records Archives (ACERA). See, notice in the Federal Register, March 16, 2010, Vol. 75, No. 50, at Pages 12573-12574. Location: 700 Pennsylvania Ave., NW.

9:30 - 11:30 AM. The Information Technology and Innovation Foundation (ITIF) will host a panel discussion titled "The US Should Pick Winners". The speakers will be Robert Atkinson (ITIF), James Fallows (The Atlantic), Robert Lawrence (Harvard University), Clyde Prestowitz (Economic Strategy Institute), and Claude Barfield (American Enterprise Institute). See, notice. This event is free and open to the public. The ITIF will webcast this event. Location: DC Bar Conference Center, 1101 K St., NW.

10:00 AM - 12:00 NOON. The Department of Health and Human Services' (DHHS) Office of the National Coordinator for Health Information Technology's (ONCHIT) HIT Policy Committee's Meaningful Use Workgroup will meet by webcast and teleconference. See, notice in the Federal Register, March 17, 2010, Vol. 75, No. 51, at Pages 12752-12753.

12:00 NOON - 1:30 PM. The National Economists Club will host a lunch. Mark DeWeaver (Quantrarian Capital Management) will give a speech titled "China's Exit Strategy for Monetary Policy". Location: Darlington House, 1610 20th St., NW.

2:30 PM. The Federal Trade Commission's (FTC) Bureau of Economics (BOE) will host a seminar presented by Timothy Brennan (University of Maryland, Baltimore County). For more information, contact Loren Smith lsmith2 at ftc dot gov or Tammy John tjohn at ftc dot gov. Location: FTC, Conference Center, 601 New Jersey Ave., NW.

Day two of a four day event hosted by the American Bar Association's (ABA) Section of Intellectual Property Law titled "Annual Intellectual Property Law Conference". See, notice. Location: Crystal Gateway Marriott, Arlington, VA.

Day one of a two day conference hosted by the DC Bar Association titled "2010 Judicial and Bar Conference". See, conference web site. The price to attend is $150. Location: Ronald Reagan Building, International Trade Center, 1300 Pennsylvania Ave., NW.

8:00 AM - 12:30 PM. Day three of a three day meeting of the National Institute of Standards and Technology's (NIST) Information Security and Privacy Advisory Board (ISPAB). See, notice in the Federal Register, March 19, 2010, Vol. 75, No. 53, Pages 13258-13259. Location: Washington Marriott Wardman Park Conference Center, 2660 Woodley Road, NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will consider on the briefs Tiger Team Tech v. Synesi Group, App. Ct. No. 2009-1508, an appeal from the U.S. District Court (DMinn) in case regarding formation of a patent licensing agreement. Location: Courtroom 201, 717 Madison Place, NW.

Day three of a four day event hosted by the American Bar Association's (ABA) Section of Intellectual Property Law titled "Annual Intellectual Property Law Conference". See, notice. Location: Crystal Gateway Marriott, Arlington, VA.

Day two of a two day conference hosted by the DC Bar Association titled "2010 Judicial and Bar Conference". See, conference web site. The price to attend is $150. At 2:30 PM there will be a two part seminar titled "Emerging E-Communications Issues: Before, During, and After Trial". Location: Ronald Reagan Building, International Trade Center, 1300 Pennsylvania Ave., NW.

Deadline to submit comments to the National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) regarding its draft NIST IR-7669 [17 pages in PDF] titled "Open Vulnerability Assessment Language (OVAL) Validation Program Derived Test Requirements".

Day four of a four day event hosted by the American Bar Association's (ABA) Section of Intellectual Property Law titled "Annual Intellectual Property Law Conference". See, notice. Location: Crystal Gateway Marriott, Arlington, VA.

The Senate will return from its spring recess.

5:30 - 8:45 PM. The DC Bar Association will host an event titled "Covenants Not To Compete". The speakers will be Edward Isler (Isler Dare Ray) and Leslie Tabackman. The price to attend ranges from $89 to $129. Most DC Bar events are not open to the public. This event qualifies for continuing legal education (CLE) credits. See, notice. For more information, call 202-626-3488. Location: DC Bar Conference Center, 1101 K St., NW.

Deadline to submit comments to the Department of Justice's (DOJ) Antitrust Division regarding the proposed settlement of the DOJ's Clayton Act action against Ticketmaster and Live Nation. See, notice in the Federal Register, February 10, 2010, Vol. 75, No. 27, at Pages 6709-6728. See also, story titled "DOJ Requires Ticketmaster Live Nation to License Ticket Software and Divest Ticketing Assets" in TLJ Daily E-Mail Alert No. 2,038, January 25, 2010.

Deadline to submit comments to the Federal Communications Commission's (FCC) International Bureau (IB) to assist it in developing recommendations to the Department of State for U.S. proposals and positions at the upcoming World Telecommunication Development Conference (WTDC) and the Plenipotentiary Conference of the International Telecommunication Union (ITU). See, notice. This proceeding is IB Docket No. 10-68.

9:00 AM. The Department of Commerce's (DOC) Bureau of Industry and Security's (BIS) Regulations and Procedures Technical Advisory Committee (RPTAC) will hold a partially closed meeting. See, notice in the Federal Register, March 25, 2010, Vol. 75, No. 57, at Pages 14426-14427. Location: Room 3884, DOC, Hoover Building, 14th Street between Pennsylvania and Constitution Aves., NW.

9:00 AM - 12:45 PM. The Federal Communications Commission's (FCC) Public Safety and Homeland Security Bureau (PSHSB) will host an event titled "Workshop on Communications Infrastructure and Information Collection". The deadline to register to attend is April 9, 2010. See, registration page. Location: FCC, Commission Meeting Room (TW-C305), 445 12th St., SW.

1:30 - 4:30 PM. The Department of Homeland Security's (DHS) National Infrastructure Advisory Council (NIAC) will meet. See, notice in the Federal Register, March 25, 2010, Vol. 75, No. 57, at Pages 14454-14455. Location: National Press Club, Ballroom, 529 14th St.,  NW.

2:00 - 3:30 PM. The Department of Justice's (DOJ) Antitrust Division will host a seminar presented by Joshua Gans (Melbourne University) titled "Collusion on the Extensive Margin". For more information, contact Patrick Greenlee at 202-307-3745 or atr dot eag at usdoj dot gov. Location: DOJ, Liberty Square Building, 450 5th St., NW.

Day one of a three day event hosted by the National Institute of Standards and Technology (NIST) titled "9th Symposium on Identity and Trust on the Internet". See, notice. The price to attend is $180. Location: NIST, Administration Building, Green Auditorium, 100 Bureau Drive, Gaithersburg, MD.

9:00 AM - 12:00 NOON. The Department of Health and Human Services' (DHHS) Office of the National Coordinator for Health Information Technology's (ONCHIT) HIT Policy Committee's NHIN Workgroup will meet by webcast and teleconference. See, notice in the Federal Register, March 17, 2010, Vol. 75, No. 51, at Pages 12752-12753.

RESCHEDULED FROM MARCH 23. 9:30 AM. The Senate Judiciary Committee (SJC) will hold a hearing titled "Oversight of the Department of Justice". The witness will be Attorney General Eric Holder. See, notice. The SJC will webcast this event. Location: Room 226, Dirksen Building.

10:00 - 11:30 AM. The Information Technology and Innovation Foundation (ITIF) will host a panel discussion titled "Save the Date: How IT is Driving the Self-Service Economy". The speakers will be Rob Atkinson (ITIF) and Daniel Castro (ITIF). This event is free and open to the public. The ITIF will webcast this event. Location: ITIF, 1101 K St., NW.

12:00 NOON - 6:00 PM. Day one of a two day meeting of the National Science Foundation's (NSF) Engineering Advisory Committee. See, notice in the Federal Register, March 24, 2010, Vol. 75, No. 56, at Page 14205. Location: NSF, 4201 Wilson Boulevard, Suite 1235, Arlington, VA.

1:00 - 2:30 PM. The American Bar Association (ABA) will host a teleconferenced and webcast panel discussion titled "Data Protection vs. Global Interconnectivity: What Every Employment Lawyer Must Know About the Cross Border Transfer of Personal Information". The speakers will be Philip Berkowitz (Nixon Peabody), Andrea Blander (Oracle), Boris Dzida (Freshfields Bruckhaus Deringer), and Miriam Wugmeister (Morrison & Foerster). See, notice. Prices vary.

RESCHEDULED FROM MARCH 23. 2:30 PM. The Senate Commerce Committee (SCC) will hold a hearing titled "Reviewing the National Broadband Plan". FCC Chairman Julius Genachowski will testify. See, FCC staff report [376 pages in PDF] titled "A National Broadband Plan for Our Future" and story titled "FCC Releases National Broadband Plan" in TLJ Daily E-Mail Alert No. 2,058, March 15, 2010. See, SCC notice. Location: Room 253, Russell Building.

Day two of a three day event hosted by the National Institute of Standards and Technology (NIST) titled "9th Symposium on Identity and Trust on the Internet". See, notice. The price to attend is $180. Location: NIST, Administration Building, Green Auditorium, 100 Bureau Drive, Gaithersburg, MD.

Deadline to submit reply comments to the Federal Communications Commission (FCC) regarding its report to Congress regarding the Open-Market Reorganization for the Betterment of International Telecommunications Act (ORBIT Act). See, notice [PDF]. This proceeding is IB Docket No. 10-70.

Extended deadline to submit comments to the Internet Corporation for Assigned Names and Numbers (ICANN) regarding the ICANN paper [13 pages in PDF] titled "Proposed Initiatives for Improved DNS Security, Stability and Resiliency", and the ICANN paper [18 pages in PDF] titled "Global DNS-CERT Business Case: Improving the Security, Stability and Resiliency of the DNS". See also, ICANN notice.

4/6. Many representatives of companies, trade groups, thinks tanks and advocacy groups commented on the U.S. Court of Appeals' (DCCir) April 6, 2010, opinion [36 pages in PDF] in Comcast v. FCC.

Comcast's Sena Fitzmaurice stated in a release that "We are gratified by the Court’s decision today to vacate the previous FCC’s order.  Our primary goal was always to clear our name and reputation. We have always been focused on serving our customers and delivering the quality open-Internet experience consumers want.   Comcast remains committed to the FCC’s existing open Internet principles, and we will continue to work constructively with this FCC as it determines how best to increase broadband adoption and preserve an open and vibrant Internet.”

Kyle McSlarrow, head of the National Cable and Telecommunications Association (NCTA), stated in a release that "The Court correctly ruled that a specific order by the previous FCC was wrong. We cannot state strongly enough that this decision will change nothing about the cable industry’s longstanding commitment to provide consumers the best possible broadband experience.  Nor does the ruling alter the government’s current ability to protect consumers.  We continue to embrace a free and open Internet as the right policy and will continue to work with the Commission and other policymakers and stakeholders to find a sound way of preserving that goal.”

The FTTH Council stated in a release that it "has supported the FCC's network neutrality principles, but we have opposed turning those principles into official rules, largely because of our concerns that restricting the ability of service providers to manage their networks would prove counterproductive to ensuring they could offer quality, affordable service. To date, service providers have acted responsibly and in the best interests of their customers."

AT&T's Jim Cicconi stated in a release that "the FCC's Open Internet Principles work. In the nearly five years since these Principles were put in place, the FCC has encountered only one serious complaint, and even in that case, which was before the court today, the company took steps to address the complaint long before the FCC ruled."

He added that "If, after assessing its options under Title I, the FCC feels it needs to clarify its jurisdiction as a result of today’s decision, we hope the issue would be referred to the U.S. Congress which alone confers the Commission's legal authority.  In any circumstance, AT&T pledges to work constructively with the FCC as it considers these questions."

Steve Largent, head of the CTIA, stated in a release that "the FCC needs to focus on the important task of making the promise of the National Broadband Plan a reality by spurring investment, innovation and job growth, and turn away from calls to impose restrictive regulations on broadband providers and the Internet ecosystem."

He added that "This decision from the Court of Appeals suggests that it is time to turn away from murky regulatory debates and focus on connecting all Americans and leading the world in broadband."

Robb Tololski of the New America Foundation (NAF) stated in a release that "Today's court decision means that nobody has the authority to stop the nation's broadband providers from interfering with consumers' online activities: Comcast can block customers access to applications; Windstream can redirect your Google searches to its own search engine; Verizon can change the behavior of DNS and change which web pages you can see; AT&T can censor streaming media and block free speech; and Charter can invade your privacy for the purposes of advertising".

The NAF's Sacha Meinrath stated in the same release that broadband internet access should be subjected to Title II regulation.

Jim Harper of the Cato Institute wrote a short piece in which he stated that "The court's decision marks another turning point in the debate over whether the federal government should regulate Internet access services. What's entertaining about it is that the problem was solved two years ago by market processes -- sophisticated Internet users, a watchdog press, advocacy groups, and interested consumers communicating with one another over the Internet."

He continued that "The next step will be for advocates to run to Congress, asking it to give the FCC authority to fix the problems of two years ago. But slow-moving, technologically unsophisticated bureaucrats do not know better than consumers and technologists how to run the Internet. The FCC’s ``net neutrality´´ hopes are nothing more than public utility regulation for broadband. If they get that authority, your online experience will be a little more like dealing with the water company or the electric company and a little less like using the Internet."

Harper concluded that "The FCC doesn't have authority to regulate the Internet. Congress and the president shouldn't give it that authority."

Barbara Esbin of the Progress & Freedom Foundation (PFF) stated in a release that "The D.C. Circuit's ruling reaffirms the primacy of the rule of law and the legislative authority of Congress to determine whether and how our nation's communications networks are to be regulated."

She elaborated that "the FCC's action against Comcast's Internet network management practices was unlawful because Congress has not delegated to the FCC regulatory authority over the provision of Internet services, and the FCC may not self-generate such authority through creative use of the doctrine of implied or ``ancillary jurisdiction.´´ The court's decision rests on the foundational principles that the FCC's regulatory authority is not unbounded, the agency is not free to make it up as it goes along and the FCC possess no plenary authority to regulate an Internet service provider's network management practices."

She added that "It bears mention that the FCC's proposed ``open Internet´´ rules are premised on the same jurisdictional theory -- that the FCC may regulate on the basis of Congressional statements of policy alone (as opposed to statutorily mandated responsibility) -- that the D.C. Circuit has now invalidated. This strongly suggests that the time has come for our elected representatives to take up the question of whether and how the FCC should regulate the provision of Internet services." (Parentheses in original.)

Tom Lenard of the Technology Policy Institute (TPI) stated in a release that "I am pleased to see the D.C. Circuit Court came to the correct decision in this case. From a policy perspective, the type of ``network neutrality´´ regulation at issue is not in the best interest of consumers and the Court’s decision indicates that the FCC does not have the authority to impose such regulation. I am concerned, however, that the Commission may now attempt to reclassify broadband as a telecommunications service, subjecting it to traditional public utility-type regulation. In my opinion, this would be a grave mistake that would undermine the goals of the recently-released National Broadband Plan."

Randall May of the Free State Foundation (FSF) stated in a release that "It is now clear that the best course for the FCC is to suspend work on its proposed net neutrality regulations. If the agency believes some form of Internet regulation is desirable, it should work with Congress to fashion a new statutory framework."

Gigi Sohn, head of the Public Knowledge (PK), one of the groups that originally complained to the FCC about Comcast, stated in a release that "Today’s Appeals Court decision means there are no protections in the law for consumers’ broadband services. Companies selling Internet access are free to play favorites with content on their networks, to throttle certain applications or simply to block others."

She also argued that "The ability of the FCC to support broadband through universal service is in jeopardy, as is the agency’s ability to protect consumer privacy, ensure access to broadband-based emergency communications or promote access to broadband for the disabled. In our view, the FCC needs to move quickly and decisively to make sure that consumers are not left at the mercy of telephone and cable companies."

She urged the FCC to "immediately start a proceeding bringing Internet access service back under some common carrier regulation similar to that used for decades.

David Sohn of the Center for Democracy and Technology (CDT) stated in a release that "the best approach here would be for Congress to give the FCC a clean but limited grant of authority to preserve the openness and neutrality of Americans' 'last mile' access to the Internet ... Alternatively, the FCC will have to consider using its authority to reclassify broadband services to bring them under agency jurisdiction in a focused and light-touch way."

Derek Turner, of the Free Press, which also complained to the FCC about Comcast, stated in a release that "The decision has forced the FCC into an existential crisis, leaving the agency unable to protect consumers in the broadband marketplace, and unable to implement the National Broadband Plan. As a result of this decision, the FCC has virtually no power to stop Comcast from blocking websites. The FCC has virtually no power to make policies to bring broadband to rural America, to promote competition, to protect consumer privacy or truth in billing. This cannot be an acceptable outcome for the American public and requires immediately FCC action to reestablish legal authority."

He also opined that "This crisis is not a result of a weak Congressional law, but a direct consequence of the previous two Commission's misguided and overzealous attempts to completely deregulate America's communications networks. Past FCC actions created a huge loophole in the law that leaves the agency unable to protect consumer privacy or promote universal broadband access."

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