8/5. The Senate amended and passed S 3304 [LOC | WW], the "Equal Access to 21st Century Communications Act", without debate, discussion, or a roll call vote.

The bill would expand existing FCC regulatory regimes regarding hearing aid compatibility and communications relay services. It would require the FCC to reinstate and expand its video description regulations.

It would also create a vast new FCC based regulatory regime covering a wide range of software, computers, electronic devices, and services that are used for communications, including equipment and software that can be used for VOIP. It would also give the FCC broad new authority to regulate the design of electronic devices that could be used to receive or play video.

The text of the bill as passed by the Senate is in the Congressional Record, August 5, 2010, at Pages S6983 - S6989.

The House passed its similar bill, HR 3101 [LOC | WW], also titled the "Equal Access to 21st Century Communications Act", on July 26, 2010. See, Roll Call No. 469.

The two bills are different. The House version contains some provisions added last month that are intended to reduce the harm to investment and innovation in new technologies that the bill would cause.

For example, the House bill, but not the Senate bill, provides that the sweeping section mandating disability access to a broad range of internet based services and electronic devices "shall not be construed to require a manufacturer of equipment used for advanced communications or a provider of advanced communications services to make every feature and function of every device or service accessible for every disability". The House bill also provides that the FCC may exempt small entities. It also exempts "customized equipment or services that are not offered directly to the public".

The House will meet for legislative business on Tuesday, August 10, 2010. It is possible, but not likely, that it would approve the Senate version at that time. The Senate will also meet next week.

Sen. John Rockefeller (D-WV) stated in a release on August 6 that this Senate vote moves "this bill one big step forward to becoming law".

8/5. The Federal Communications Commission (FCC) adopted and released a document [79 pages in PDF] titled "Policy Statement and Second Report and Order and Further Notice of Proposed Rulemaking" that pertains to disability access.

Policy Statement. The "policy statement" portion of this item states that "our hearing aid compatibility rules must provide people who use hearing aids and cochlear implants with continuing access to the most advanced and innovative technologies as science and markets develop, while maximizing the conditions for innovation and investment".

This item also enumerates three "principles":

"First, given that consideration of accessibility from the outset is more efficient than identifying and applying solutions retroactively, we intend for developers of new technologies to consider and plan for hearing aid compatibility at the earliest stages of the product design process".

"Second, we will continue to account for technological feasibility and marketability as we promulgate rules pertaining to hearing aid compatibility, thereby maximizing conditions for innovation and investment".

"Third, we will provide industry with the ability to harness innovation to promote inclusion by allowing the necessary flexibility for developing a range of solutions to meet consumers' needs while keeping up with the rapid pace of technological advancement."

This item does not explain the legal meaning or consequence of either a "policy statement" or a "principle".

FCC Chairman Julius Genachowski wrote in his statement [PDF] that this item takes steps to "ensure that Americans with disabilities have access to modern communications technology". He added that "We adopt today an unprecedented agency Statement of Policy that emphasizes to developers of new technologies the necessity of considering and planning for hearing aid compatibility at the earliest stages of the product design process."

FCC Commissioner Michael Copps wrote in his statement that "persons with hearing aids and cochlear implants must have access to the most advanced and innovative technologies".

The FCC's hearing aid compatibility statutory authority is codified at 47 U.S.C. § 610. This statute gives the FCC authority over "telephone service" and "telephones". The FCC does not have statutory authority to regulate the hearing aid compatibility of "technologies", as this "policy statement" and Chairman Genachowski and Commissioner Copps now assert.

The FCC does not currently have statutory authority to regulate either technologies or telephones for access by blind persons. The "policy statement" does not assert such authority.

However, it should be noted that S 3304 [LOC | WW] and HR 3101 [LOC | WW], similar but not identical bills titled the "Equal Access to 21st Century Communications Act", would give the FCC broad authority to regulate not only telephones, but also other electronic devices, and internet based services, for all disability groups, including deaf, blind, deaf and blind, and mentally disabled. The House passed its bill on July 26, 2010. The Senate passed its bill on August 5, 2010.

Order. The order portion of this item amends the FCC's hearing aid compatibility rules. It states, among other things, that "we modify the de minimis exception in our existing rule so that all large entities will be required to offer at least one hearing aid-compatible model after a two-year initial period. In recognition of specific challenges that this rule change will impose for handsets operating over the legacy GSM air interface in the 1900 MHz band, we permit companies that will no longer qualify for the de minimis exception to meet hearing aid compatibility requirements by installing software that enables customers to reduce the power output by a limited amount for such operations."

Copps wrote in his statement that "we tighten our existing hearing aid compatibility rules by modifying the de minimis exception that applied to companies offering two or fewer handsets over a given air interface to now require all large companies to offer at least one hearing aid-compatible model after an initial two-year period."

Further NPRM. The Further NPRM portion of this item proposes first "to extend our rules broadly to include customer equipment used to provide wireless voice communications over any type of network among members of the public or a substantial portion of the public. We seek comment on whether considerations of technological feasibility or marketability prevent application of these requirements to any such devices".

It also seeks comment on "whether to extend our requirement to offer consumers in-store testing of hearing aid-compatible handsets beyond retail stores owned or operated by service providers to some or all other retail outlets."

Finally, it seeks comment on "whether generally to permit a user-controlled reduction of power as a means to meet the hearing aid compatibility standard for operations over the legacy GSM air interface in the 1900 MHz band."

Commissioner Copps (at right) wrote that "I hope the Commission will expeditiously consider the record on the tentative conclusion that our hearing aid compatibility rules should extend beyond just CMRS services, to include customer equipment used for wireless voice communications over any type of network by a substantial portion of the public. This would allow the hearing aid compatibility rules to apply to telephone services such as Voice over Internet Protocol Services, when provided through a handset that is designed to make phone calls."

This item also states that the FCC intends to "initiate a comprehensive review of the operation of our wireless hearing aid compatibility rules" later this year.

The two Republican Commissioners wrote brief statements. Commissioner Meredith Baker wrote in her statement [PDF] "our approach balances the needs of the hearing impaired community with the need to promote and encourage investment and innovation in handsets". See also, Commissioner Robert McDowell's statement [PDF].

Comments will be within due 45 days after publication of a notice in the Federal Register. Reply comments will be due with 75 days of such publication. As of the August 5, 2010, issue of the Federal Register, this notice had not been published.

This item is FCC 10-145 in WT Docket No. 07-250.

8/5. The Federal Communications Commission (FCC) adopted and released a document [102 pages in PDF] titled "Notice of Proposed Rulemaking and Notice of Inquiry" that pertains to the use of spectrum for backhaul. See also, FCC release.

FCC Chairman Julius Genachowski wrote in his statement that this item launches "an effort to ensure that sufficient microwave spectrum is available to meet the current and future demands for wireless backhaul".

Genachowski (at left) wrote that "we propose increasing the flexibility, capacity, and cost-effectiveness of prime microwave bands, while protecting incumbent licensees in these bands. The increased flexibility proposed in the item will also make more frequencies available for fixed broadcast studio links."

The Notice of Proposed Rulemaking (NPRM) portion of this item proposes first "to allow Fixed Service (FS) operations to share certain spectrum bands currently used by the Broadcast Auxiliary Service (BAS) and the Cable TV Relay Service (CARS)", and "to more fully accommodate broadcasters' spectrum needs by permitting greater access to spectrum by eliminating the ``final link´´ rule that prohibits broadcasters from using FS stations as the final radiofrequency (RF) link in the chain of distribution of program material to broadcast stations".

Second, the NPRM portion proposes "to allow temporary operations below the minimum capacity under certain circumstances, which will enable FS links -- particularly long links in rural areas -- to maintain critical communications during periods of fading".

Third, it proposes "to permit greater reuse of scarce microwave resources, which may permit more efficient use of the spectrum at substantially reduced cost", including "permitting FS licensees to coordinate and deploy multiple links -- a primary link and “auxiliary” links".

The Notice of Inquiry (NOI) portion of this item seeks comment on "whether lowering the current efficiency standards in rural areas would lower costs associated with providing backhaul service", "whether to review the antenna standards in any particular band to allow smaller antennas, to identify opportunities to facilitate increased deployment of FS facilities without subjecting other licensees to increased interference", and "whether we should examine any additional modifications to the Part 101 rules, or other policies or regulations, to promote flexible, efficient and cost-effective provisions of wireless backhaul service".

See also, Commissioner Robert McDowell's statement, Commissioner Michael Copp's statement, and Commissioner Mignon Clyburn's statement.

Comments will be within due 60 days after publication of a notice in the Federal Register. Reply comments will be due with 90 days of such publication. As of the August 5, 2010, issue of the Federal Register, this notice had not been published.

This item is FCC 100-146 in WT Docket Nos. 10-153, 09-106, and 07-121.

8/6. The Office of the U.S. Trade Representative (OUSTR) published a notice in the Federal Register requesting comments to assist it in preparing its annual report titled "National Trade Estimate Report on Foreign Trade Barriers", also known as "NTE".

The OUSTR seeks comments on, among other things, "Lack of intellectual property protection (e.g., inadequate patent, copyright, and trademark regimes)". (Parentheses in original.)

The OUSTR also seeks comments on "Services barriers (e.g., limits on the range of financial services offered by foreign financial institutions, regulation of international data flows, restrictions on the use of data processing, quotas on imports of foreign films, and barriers to the provision of services by professionals)". (Parentheses in original.)

It also seeks comments on "Trade restrictions affecting electronic commerce (e.g., tariff and non-tariff measures, burdensome and discriminatory regulations and standards, and discriminatory taxation); Investment barriers (e.g., limitations on foreign equity participation and on access to foreign government-funded R&D consortia, local content, technology transfer and export performance requirements, and restrictions on repatriation of earnings, capital, fees, and royalties)". (Parentheses in original.)

However, the OUSTR does not seek comments on U.S. imposed trade barriers.

The deadline to submit comments to the OUSTR is October 4, 2010. See, notice in the Federal Register, August 6, 2010, Vol. 75, No. 151, at Pages 47675-47676.

The OUSTR released its last annual NTE report on March 31, 2010. See, story titled "OUSTR Releases Report on Trade Barriers Worldwide" in TLJ Daily E-Mail Alert No. 2,069, April 1, 2010.

The House will meet at 7:00 PM in pro forma session. See, Rep Steny Hoyer's (D-MD) schedule for the week of August 9, 2010.

The Senate will meet at 2:30 PM for morning business, and at 3:30 PM to consider the nomination of Jane Stranch to be a Judge of the U.S. Court of Appeals (6thCir). The vote may be at 5:30 PM.

The House will meet at 10:00 AM for legislative business. It will consider HR 1586 [LOC | WW]. See, Rep Steny Hoyer's (D-MD) schedule for the week of August 9, 2010.

The Senate will meet at 10:00 AM. It will consider HR 5297 [LOC | WW], the "Small Business Jobs and Credit Act of 2010".

6:00 - 8:15 PM. The DC Bar Association will host a panel discussion titled "The Legal Duty to Provide Information Security: Who, What, When, Where and How". The speaker will be Jay Westermeier (Finnegan). The price to attend ranges from $89 to $129. Reporters are barred from attending most DC Bar events. This event qualifies for CLE credits. See, notice. For more information, call 202-626-3488. Location: DC Bar Conference Center, 1101 K St., NW.

9:00 AM - 1:00 PM. The Commodities Futures Trading Commission's (CFTC) and Securities and Exchange Commission's (SEC) Joint CFTC-SEC Advisory Committee on Emerging Regulatory Issues will meet. See, notice in the Federal Register, July 29, 2010, Vol. 75, No. 145, at Page 44781. Location: CFTC, Three Lafayette Centre, 1155 21st St., NW.

2:00 - 4:00 PM. The Department of State's (DOS) International Telecommunication Advisory Committee (ITAC) will meet to discuss preparations for the 2011 ITU-R World Radiocommunication Conference Preparatory Meeting. See, notice in the Federal Register, June 21, 2010, Vol. 75, No. 118, at Page 35122. Location: 1200 Wilson Boulevard, Arlington, VA.

Deadline to reply comments to the Federal Communications Commission (FCC) in response to its Notice of Inquiry and Notice of Proposed Rulemaking (NOI and NPRM) [222 pages in PDF] regarding high cost universal service subsidies and broadband. The FCC adopted and released this item on April 21, 2010. It is FCC 10-58 in WC Docket No. 10-90, GN Docket No. 09-51, and WC Docket No. 05-337. See, notice in the Federal Register, May 13, 2010, Vol. 75, No. 92, at Pages 26906-26916.

10:00 AM. The Department of Commerce's (DOC) Bureau of Industry and Security's (BIS) Materials Technical Advisory Committee will hold a partially closed meeting. See, notice in the Federal Register, July 28, 2010, Vol. 75, No. 144, at Pages 44227-44228. The BIS will teleconference this event. Location: DOC, Room 3884, 14th Street between Constitution & Pennsylvania Avenues, NW.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Notice of Inquiry (NOI) [64 pages in PDF] that proposes to reclassify broadband internet access services as Title II services. The FCC adopted and released this NOI on June 17, 2010. It is FCC 10-114 in GN Docket No. 10-127. See, stories titled "FCC Adopts Broadband Reclassification NOI", "Reaction to FCC Reclassification NOI", and "Congress, the FCC, and Broadband Regulation " in TLJ Daily E-Mail Alert No. 2,097, June 18, 2010. See also, story titled "FCC Employs Fast Tracking and Stacking in Reclassification Proceeding" in TLJ Daily E-Mail Alert No. 2,098, June 21, 2010. See also, notice in the Federal Register, June 24, 2010, Vol. 75, No. 121, at Pages 36071-36088.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Notice of Inquiry (NOI) [30 pages in PDF] regarding Section 629 of the Telecommunications Act of 1996, which is codified at 47 U.S.C. § 549(a), and enabling electronics manufacturers to offer smart video devices at retail that can be used with the services of any MVPD and without the need to coordinate or negotiate with MVPDs. The FCC adopted and released this item on April 21, 2010. It is FCC 10-60 in MB Docket No. 10-91, CS Docket No. 97-80, and PP Docket No. 00-67. See, notice in the Federal Register, May 14, 2010, Vol. 75, No. 93, at Pages 27264-27271.

Deadline to submit to the Copyright Royalty Judges (CRJ) objections to the negotiated royalty rates for the satellite carrier statutory license of the Copyright Act for the license period 2010-2014. See, notice in the Federal Register, July 13, 2010, Vol. 75, No. 133, at Pages 39891-39892.

Deadline to submit comments to the Department of Homeland Security (DHS) regarding data collection forms for its Protected Repository for the Defense of Infrastructure Against Cyber Threats (PREDICT) initiative. See, notice in the Federal Register, June 14, 2010, Vol. 75, No. 113, at Pages 33629-33631.

Deadline to submit comments to the U.S. Patent and Trademark Office (USPTO) regarding proposed changes to restriction practice in patent applications. See, notice in the Federal Register, June 14, 2010, Vol. 75, No. 113, at Pages 33584-33587.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to three public notices regarding FCC collection, use and dissemination of data. See, Media Bureau notice (DA 10-1195 in MB Docket No. 10-103), Wireline Competition Bureau (WCB) notice (DA 10-1189 in WC Docket No. 10-132), and Wireless Telecommunications Bureau (WTB) notice (DA 10-1223 in WT Docket No. 10-131). See also, FCC release.

Deadline to submit comments to the Executive Office of the President's (EOP) Office of Science and Technology Policy's (OSTP) request for information regarding the National Nanotechnology Initiative (NNI). See, notice in the Federal Register, July 6, 2010, Vol. 75, No. 128, at Pages 38850-38853.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Further Notice of Proposed Rulemaking [99 pages in PDF] regarding access by telecommunications carriers and cable operators to utility poles. The FCC adopted and released this item on May 20, 2010. This item is FCC 10-84 in WC Docket No. 07-245 and GN Docket No. 09-51. See, notice in the Federal Register, July 15, 2010, Vol. 75, No. 135, at Pages 41337-41363. See also, story titled "FCC Adopts Pole Attachments Order and FNPRM" in TLJ Daily E-Mail Alert No. 2,087, May 26, 2010. See also, July 19, 2010, Public Notice (DA10-1323.)

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Public Notice [21 pages in PDF] requesting input and data on mobile wireless competition for the FCC's Fifteenth Annual Report on the State of Competition in Mobile Wireless. This item is DA 10-1234 in WT Docket No. 10-133.

8/4. The Federal Trade Commission (FTC) filed an amicus curiae brief [29 pages in PDF] with the U.S. Court of Appeals (FedCir) in Tivo v. Echostar, a patent infringement case regarding digital video recorder (DVR) technology. Although, presently at issue is the use of contempt proceedings by a District Court to determine whether a post judgment design around product is infringing.

The FTC brief does not advocate either affirming or reversing the District Court. Rather, it urges the Court of Appeals to recognize the procompetitive role played by both design-arounds.

Background. Tivo filed a complaint in the U.S. District Court (EDTex) against Echostar alleging infringement of its U.S. Patent No. 6,233,389. Following trial in 2006, the District Court entered judgment of patent infringement, awarded damages, and granted a permanent injunction.

Echostar then redesigned its product in an effort to avoid infringement.

The District Court, in a contempt proceeding, rather than a new trial, determined the work around product to be infringing. The District Court awarded Tivo sanctions. That decision is reported at 640 F. Supp. 2d 853.

Echostar appealed to the Federal Circuit. In this appeal, a three judge panel of the Court of Appeals issued its opinion on March 4, 2010, affirming the District Court. Judge Lourie wrote the opinion of the Court, in which Judge Mayer joined. Judge Rader dissented. Then, on May 12, 2010, the Court of Appeals issued its order granting rehearing en banc, and vacating the March 4 opinion.

The Court of Appeals requested briefing on four issues:

First, "Following a finding of infringement by an accused device at trial, under what circumstances is it proper for a district court to determine infringement by a newly accused device through contempt proceedings rather than through new infringement proceedings? What burden of proof is required to establish that a contempt proceeding is proper?"

Second, "How does ``fair ground of doubt as to the wrongfulness of the defendant's conduct´´ compare with the ``more than colorable differences´´ or ``substantial open issues of infringement´´ tests in evaluating the newly accused device against the adjudged infringing device? See Cal. Artificial Stone Paving Co. v. Molitor, 113 U.S. 609, 618 (1885); KSM Fastening Sys., Inc. v. H.A. Jones Co., 776 F.2d 1522, 1532 (Fed. Cir. 1985)."

Third, "Where a contempt proceeding is proper, (1) what burden of proof is on the patentee to show that the newly accused device infringes (see KSM, 776 F.2d at 1524) and (2) what weight should be given to the infringer's efforts to design around the patent and its reasonable and good faith belief of noninfringement by the new device, for a finding of contempt?"

Fourth, "Is it proper for a district court to hold an enjoined party in contempt where there is a substantial question as to whether the injunction is ambiguous in scope?"

FTC Arguments. The FTC wrote that "At issue in this case are the circumstances under which summary contempt proceedings are appropriate to determine infringement when an adjudicated infringer redesigns its product in an effort to avoid infringement. In crafting the applicable standards, the Court must strike a balance among the competing interests of the patent owner, who has already obtained a favorable judgment, the interests of the adjudicated infringer who seeks to ``design around´´ the patent, as well as the interests of the courts in curtailing burdensome litigation."

"Of particular interest to the FTC are (1) the recognized procompetitive benefits of design-arounds, which are a source of innovation and competition and which the summary contempt standard will directly affect, and (2) the recognized procompetitive effects of patents, which can be an innovator's principal line of defense against the market power of entrenched incumbents. In filing this amicus brief, the Commission seeks to ensure that any ruling in this case protects the ``complementary´´ goals that Congress established in the patent and antitrust laws -- specifically, to ``promote innovation and competition.´´"

The amicus brief continues that "The FTC submits this amicus brief in light of the implications that the Court's decision could have (1) for companies who elect to design around a patent after facing an injunction at the conclusion of a patent trial, and (2) for patentees who are entitled to an enforceable injunction after such a trial, upon making the proper equitable showing. Making summary contempt proceedings and contempt sanctions too easily available, as opposed to providing the opportunity for a new trial on the merits, could dampen incentives for follow-on innovation to the detriment of competition thereby expanding a patent holder’s rights beyond the patent’s exclusionary scope and chilling innovation."

"Simply put, the greater the assurance that a design-around product will get its day in court in appropriate circumstances -- whether the design-around is the first, or second, bite at the apple -- the greater the incentives to innovate and encourage entry. At the same time, enforceable injunctions can also be an important prerequisite to innovation and entry."

En banc oral argument is scheduled for November 9, 2010, in Courtroom 201. The Court is scheduled to meet at 10:00 AM. This case is the second of two.

This case is Tivo, Inc. v. Echostar Corporation, et al., U.S. Court of Appeals for the Federal Circuit, App. Ct. No. 2009-1374, an appeal from the U.S. District Court for the Eastern District of Texas, D.C. No. 2:04-CV-01, Judge David Folsom presiding.

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