9/3. The Government Accountability Office (GAO) released a report [69 pages in PDF] titled "Telecommunications: The Proposed Performance Rights Act Would Result in Additional Costs for Broadcast Radio Stations and Additional Revenue for Record Companies, Musicians, and Performers".

Rep. John Conyers (D-MI), Chairman of the House Judiciary Committee (HJC), and others introduced HR 848 [LOC | WW], the "Performance Rights Act", on February 4, 2009. Sen. Patrick Leahy (D-VT) and others introduced the companion bill in the Senate, S 379 [LOC | WW]. There was also related legislation in the 110th Congress. See, story titled "Performance Rights Act Reintroduced" in TLJ Daily E-Mail Alert No. 1,896, February 10, 2009.

The exclusive rights of copyright holders are set out in 17 U.S.C. § 106. Section 106(6) extends the performance right for sound recordings only to digital audio transmissions, thus exempting broadcasts by terrestrial radio broadcasters. Section 106(6) currently provides that "the owner of copyright under this title has the exclusive rights to do and to authorize ... in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission".

HR 848 and S 379 would amend this by deleting the word "digital". Thus, the rights of recording artists in all audio transmissions would be protected by copyright. Currently, the exclusive rights of recording artists extend to audio transmissions by internet streaming, satellite radio, and via social networking sites.

However, both HR 848 and S 379 would provide special treatment for small, noncommercial, educational, and religious radio stations.

The just released GAO report first offers the uncontroversial conclusion that "Broadcast radio benefits from the use of sound recordings to generate advertising revenue and the recording industry may benefit from radio airplay that can promote sales.

In addition, the report states that "Stakeholders from both the recording and broadcast radio industries agree that broadcast radio airplay can promote music sales, and past and current industry practices support this conclusion."

"However, GAO found the relationship between airplay and music sales to be unclear. The presence of other promotional outlets, such as the Internet and special events, and growth of music piracy create a more nuanced environment wherein the relationship between airplay and music sales is less clear than in the past."

This report was requested by Rep. John Conyers (D-MI), the , Rep. Lamar Smith (R-TX), the ranking Republican on the HJC, and other House members.

8/23. The heads of the CTIA, Consumer Electronics Association (CEA), TechAmerica, Telecommunications Industry Association (TIA), and other groups sent a letter [3 pages in PDF] to the Chairmen and ranking Republicans on the House and Senate Judiciary Committees in which they oppose mandating FM radio chips in mobile devices.

The current debate over ending terrestrial broadcasters' exemption from paying a performance right royalty for sound recordings pits broadcasters against the music industry. One proposed compromise between these two factions would entail taking something from a third faction -- mobile communications. Predictably, this faction is opposed.

They wrote that the "parties to the long-standing dispute over performance rights royalties may be working to forge a legislative compromise that would mandate the inclusion of FM radio chips in all mobile devices".

They  labeled the proposal a "technology mandate" that is "not necessary".

First, they argued that this mandate "would raise the cost of producing wireless devices, with the likely outcome being that consumers would pay more for functionality they may not desire or ever use." They added that "While there are a number of FM-capable devices available in the U.S. market, they are not among the top sellers and do not appear to be favored by consumers. If they were, manufacturers and wireless carriers alike would rush to respond to that demand."

Second, they argued that "the groups that are parties to the discussions over the performance rights royalty issue lack any expertise in the development of wireless devices and are in no position to dictate what type of functionality is included in a wireless device." For example, "Requiring that devices carry an FM chip may foreclose opportunities to include other functionality that may be more highly valued by consumers and harm competition among device makers by limiting opportunities for differentiation."

Third, they argued that "while certain proponents of an FM chip mandate couch their call for dictated design decisions as necessary to enhance public safety, such claims are not true. Pursuant to the Warning, Alert, and Response Network (WARN) Act (enacted as part of P.L. 109-347), industry is working with the Federal Communications Commission, the Federal Emergency Management Agency, and other governmental stakeholders to develop a mobile broadcast emergency alerting system compatible with present and future wireless air interfaces that will allow for the targeted real-time delivery of government-approved alerts. A widely available alerting platform will soon be a reality."

The tech and telecom groups added that this proposed mandate is about "propping up a business which consumers are abandoning as they avail themselves of new, more consumer-friendly options".

Dennis Wharton of the National Association of Broadcasters (NAB) responded in a release that "Countries around the globe have added radio-enabled cell phones that are increasingly popular with consumers. The reality is that 239 million Americans tune in to free and local radio every week, and seven million new radio listeners were added just last year."

"Day in and day out, local radio stations serve as a reliable lifeline in times of crisis and weather emergencies. In an increasingly mobile society, it would be unfortunate if telco gatekeepers blocked access to public safety information offered by free and local radio."

8/26. The Government Accountability Office (GAO) released a report [57 pages in PDF] titled "Telecommunications: Enhanced Data Collection Could Help FCC Better Monitor Competition in the Wireless Industry".

The report finds rapid growth in consumer adoption, improved capability of wireless devices, dropping prices, and improving services. The report, and House Democrats, both call for enhanced data collection by the Federal Communications Commission (FCC).

The report addresses consolidation among wireless carriers to four leading providers, increased use of wireless services by consumers to a 91% penetration rate, the advent of smart phones, decreasing prices, and improving services.

The report also addresses the FCC's spectrum auctions and policies, and special access policies. It also addresses the detrimental effects of local zoning policies and procedures on the construction and improvement of wireless networks.

The report states this about decreasing prices: "Although consolidation has increased the difficulty for small and regional carriers to compete in the wireless industry, a high concentration of firms in an industry does not necessarily mean that the interests of consumers are poorly served. In particular, by enabling large national carriers to exploit economies of scale, consolidation can create greater productivity and economic efficiency. This industry consolidation may have especially improved the efficiency of the large national carriers, allowing them to offer more wireless services for similar or lower prices. Indeed, one way that wireless carriers can compete is through differentiated price plans. The Consumer Price Index, which shows the changes in the average prices of goods and services, indicates that the overall average price (adjusted for inflation) for wireless services declined each year from 1999 to 2008 ...; the average price for wireless service in 2009 was approximately 50 percent of the price in 1999." (Parentheses in original. Footnote omitted.)

Steve Largent, head of the CTIA, which represents wireless companies, stated in a release that this GAO report "confirms what we've been saying for a long time -- that the U.S. wireless industry is extremely competitive and continues to respond to increasing consumer demand by delivering real benefits for American consumers".

The report also addresses consumer switching costs, early termination fees, and exclusive handset practices.

Finally, it notes that the FCC conducts annual studies of wireless competition, but does not collect its own data on prices, special access, capital expenditures, and devices and equipment.

The report states that the "FCC still lacks detailed data on prices charged and costs incurred by wireless carriers. Without such information, FCC is missing important information that can shed light on the state of competition in the wireless industry, which can ultimately lead to missed opportunities to protect and enhance consumers' experience in the market."

Rep. Rick Boucher (D-VA), Chairman of the House Commerce Committee's (HCC) Subcommittee on Communications, Technology and the Internet (SCTI) stated in a release that this report indicates that the FCC "should improve its data collection with respect to the effects that some industry practices may have on consumers. I urge the Commission to consider the GAO's analysis and to continue to work with stakeholders to ensure that all Americans continue to benefit from widely available and reasonably priced wireless communications services."

Rep. Henry Waxman (D-CA) (at right), Chairman of the HCC, stated in the same release that "It is time for the FCC to complete its evaluation of special access pricing.  Pro-competitive policies in the special access market are essential to maximize choice, affordability, and technological innovation in the wireless market."

Rep. Ed Markey (D-MA), a former Chairman of the HCC/SCTI, stated that "issues such as early termination fees charged by carriers -- which raise concerns both from a consumer protection and a competition standpoint -- handset exclusivity arrangements, acquisition of spectrum and industry consolidation all should be closely examined".

9/1. The Federal Communications Commission (FCC) released a Public Notice [7 pages in PDF] that makes statements, and requests comments, regarding regulation of the providers of broadband internet access service (BIAS) and "specialized services". This PN focuses on FCC regulation of wireless service providers, and "specialized services".

Advocates of FCC network neutrality regulation and/or reclassification expressed frustration that the FCC is not moving more quickly to impose a new regulatory regime. Broadband service providers welcomed another comment period.

This PN refers to proposed regulation as "Open Internet protections". It makes three broad statements about the potential consequences of "specialized services" for "Open Internet protections". It then offers six policy options. Finally, it requests comments.

First, the PN states that "Open Internet protections may be weakened if broadband providers offer specialized services that are substantially similar to, but do not technically meet the definition of, broadband Internet access service, and if consumer protections do not apply to such services. A similar concern may arise if specialized services are integrated into broadband Internet access service; for example, if a broadband provider offers broadband Internet access service bundled with a “specialized service” that provides prioritized access to a particular website." (Footnotes omitted from this and other quotations.)

Second, it states that "Broadband providers may constrict or fail to continue expanding the network capacity allocated to broadband Internet access service in order to provide more capacity for specialized services. If this occurs, and particularly if one or more specialized services serve as substitutes for the delivery of content, applications, and services over broadband Internet access service, the open Internet may wither as an open platform for competition, innovation, and free expression."

Third, it states that "Broadband providers may have the ability and incentive to engage in anti-competitive conduct with respect to specialized services, particularly if they are vertically integrated providers of content, applications, or services; or if they enter into business arrangements with third-party content, application, or service providers concerning specialized service offerings."

The FCC's PN then identifies six policy approaches:

(1) defining BIAS broadly,
(2) prohibiting service providers from marketing specialized services as BIAS,
(3) mandating disclosures,
(4) mandating that any commercial arrangements with a vertically-integrated affiliate or a third party for the offering of specialized services be offered on the same terms to other third parties,
(5) limiting the types of specialized services that can be offered, and
(6) regulating the minimum network capacity dedicated to BIAS.

Steve Largent, head of the CTIA, stated in a release that "We are pleased the FCC has put out the Public Notice for comment on the application of open Internet rules for our industry. We are happy the Chairman and the Commissioners realize that wireless is different. We will continue to work with them to explain why these rules are unnecessary and should not be applied to the wireless ecosystem." He concluded, "wireless is different."

Walter McCormick, head of the USTelecom, stated in a release that "We welcome Chairman Genachowski’s request for further comment as being pragmatic and wholly consistent with his commitment to employ a data-driven approach to regulation."

He added that "Since there are no imminent threats to the open and robust Internet that consumers enjoy today, it is prudent for the Chairman to make sure that the Commission proceeds in a way that is fully-informed, measured, and avoids doing any harm to this dynamic sector."

Kyle McSlarrow, head of the National Cable & Telecommunications Association (NCTA), stated in a release that "We remain strong in our belief that there is a reasonable path forward to establish a framework that preserves a free and open Internet, protects consumers, and encourages the investment and innovation needed to deploy next-generation broadband networks and new products and services on the Internet. We will continue to work constructively with the Commission, Congress and other stakeholders to accomplish this goal. The public notice issued today raises important and complex issues and we will provide our input."

The Free Press's Derek Turner stated in a release that "The FCC continues to kick the can down the road and prolong this process, but the longer the FCC ponders the politics of Net Neutrality, the longer consumers are left unprotected. It is time for the FCC to stop writing notices and start making clear rules of the road. The phone and cable companies have shown us what the Internet will look like if they are allowed to write their own rules and build a two-tiered Internet with fast and slow lanes and zero protections on mobile broadband. We don't need more questions from the FCC, we need more answers."

Turner added that "Today's announcement does nothing to change what the FCC must do next. The crucial first step for the agency is to reassert its authority and reclassify broadband access services under Title II of the Communications Act. This must happen before any Net Neutrality rules can be finalized."

Gigi Sohn, head of the Public Knowledge, stated in a release that "We expect the Commission will move quickly to set the legal framework for the FCC to oversee broadband Internet access services, with specific rules to protect the open Internet to follow soon after. We note that both of the issues on which the FCC seeks public comment, dealing with specialized services and the status of wireless services in an open Internet, were extensively explored in not one, but two proceedings pending at the Commission in which comments were submitted.  The most recent comments were filed three weeks ago, following public disclosure of the policy agreement between Verizon and Google."

See also, story titled "Verizon and Google Announce Legislative Proposal on Internet Regulation" and related stories in TLJ Daily E-Mail Alert No. 2,121, August 9, 2010.

Initial comments will be due within 30 days of publication of a notice in the Federal Register. Reply comments will be due within 55 days of publication of a notice in the Federal Register. Such notice has not yet been published.

This PN is DA 10-1667 in GN Docket No. 09-191 and WC Docket No. 07-52.

The Senate will not meet. It will next meet on September 13, 2010.

The House will not meet. It will next meet at 2:00 PM on September 14, 2010.

Rosh Hashanah begins at sunset.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Notice of Inquiry (NOI) [24 pages in PDF] regarding whether the FCC should establish a voluntary program under which participating communications service providers would be certified by the FCC or a third party for their adherence to a set of cyber security objectives and/or practices. The FCC adopted and released this NOI on April 21, 2010. This NOI is FCC 10-63 in PS Docket No. 10-93. See, notice in the Federal Register, May 11, 2010, Vol. 75, No. 90, at Pages 26171-26180.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) [110 pages in PDF] regarding changes to its universal service rural health clinics tax and subsidy program. The FCC adopted and released this item on July 15, 2010. It is FCC 10-125 in WC Docket No. 02-60. See, FCC Public Notice and notice in the Federal Register, August 9, 2010, Vol. 75, No. 152, at Pages 48235-48272. See also, story titled "FCC Proposes to Expand Rural Health Clinic Universal Service Program" in TLJ Daily E-Mail Alert No. 2,105, July 15, 2010.

Deadline to submit responses to the Department of Transportation's (DOT) Federal Highway Administration's (FHA) Request for Information (RFI) regarding IntelliDrive performance measurement and performance based management demonstrations. See, notice in the Federal Register, August 9, 2010, Vol. 75, No. 152, at Pages 47888-47891.

Deadline to submit initial comments to the Federal Communications Commission (FCC) regarding AT&T's petition for reconsideration of the action taken by the FCC's Wireline Competition Bureau's (WCB) Pricing Policy Division rejecting AT&T's petition to suspend for one day, investigate and issue an accounting order for the July 1, 2010 interstate access tariff filing by Minnesota Independent Equal Access Corporation (MIEAC). See, FCC Public Notice.

10:00 - 11:00 AM. The Federal Communications Commission's (FCC) WRC-12 Advisory Committee's Informal Working Group 2: Terrestrial Services will meet. See, notice. Location: FCC, Room TW-C438/468, 445 12th St., SW.

1:00 - 4:00 PM. The Federal Communications Commission's (FCC) WRC-12 Advisory Committee's Informal Working Group 3: Space Services will meet. See, notice. Location: FCC, Second Floor, Room 2-B516, 445 12th St., SW.

2:30 - 4:00 PM. The Federal Communications Commission's (FCC) WRC-12 Advisory Committee's Informal Working Group 1: Maritime, Aeronautical and Radar Services will meet. See, notice. Location: FCC, Courtyard Level Room CY-B418/511, 445 12th St., SW.

12:15 - 1:45 PM. The Federal Communications Bar Association's (FCBA) Privacy and Data Security Committee will host a brown bag lunch. Members will make presentations on "major initiatives and potential developments in the area of Privacy and Data Security over the course of the next twelve months. Presentations will highlight the agendas for the FTC, the FCC, the states, Congress and international regulators". Location: USTelecom, Suite 400, 607 14th St., NW.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) regarding extending the electronic tariff filing requirement for incumbent local exchange carriers to all carriers that file tariffs and related documents. This NPRM is FCC 10-127 in WC Docket No. 10-141. See, FCC Public Notice and notice in the Federal Register, August 11, 2010, Vol. 75, No. 154, at Pages 48629-48641.

The Senate will return from its August recess. See, 2010 Senate calendar.

6:00 - 9:15 PM. The DC Bar Association will host a presentation titled "How to Litigate a Patent Infringement Case". The speaker will be Patrick Coyne (Finnegan Henderson). 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.

Deadline to submit reply 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 reply 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 comments to the Department of Health and Human Services (DHHS) in response to its notice of proposed rulemaking (NPRM) regarding changes to the Standards for Privacy of Individually Identifiable Health
Information (Privacy Rule), the Security Standards for the Protection of Electronic Protected Health Information (Security Rule), and the rules pertaining to Compliance and Investigations, Imposition of Civil Money Penalties, and Procedures for Hearings (Enforcement Rule) issued under the Health Insurance Portability and Accountability Act of 1996 (HIPAA). See, notice in the Federal Register, July 14, 2010, Vol. 75, No. 134, at Pages 40867-40924.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Public Notice (PN) regarding disability access and wireless communications devices. The FCC released this PN on July 19, 2010. This PN is DA 10-1324 in CG Docket No. 10-145. See also, story titled "FCC Releases Two Public Notices Regarding Disability Access" in TLJ Daily E-Mail Alert No. 2,108, July 20, 2010, and notice in the Federal Register, August 5, 2010, Vol. 75, No. 150, at Pages 47304-47305.

The House will return from its August recess at 2:00 PM. See, HConRes 308.

10:00 AM - 4:00 PM. Day one of a two day meeting of the U.S.-China Economic and Security Review Commission to consider drafts of material for its 2010 Annual Report to the Congress. See, notice in the Federal Register, August 10, 2010, Vol. 75, No. 153, at Page 48412. Location: Room 233, Hall of States, 444 North Capitol St., NW.

TIME? The Department of Commerce's (DOC) International Trade Administration (ITA), Bureau of Economic Analysis (BEA), and Census Bureau (CB), and the Department of Labor's (DOL) Bureau of Labor Statistics (BLS) will hold a meeting regarding improving the measurement of economic activity and trade in the services sector. See, notice in the Federal Register, August 3, 2010, Vol. 75, No. 148, at Page 45606. Location: DOC, Room 1104, 1401 Constitution Ave., NW.

8:30 AM - 2:30 PM. The Information Technology and Innovation Foundation (ITIF) will host a one day conference titled "The Emerging Mobile Broadband Economy and its New Business Models". The speakers will include Sen. Mark Warner (D-VA), Paul Jacobs (Ch/CEO of Qualcomm), and Phil Weiser (National Economic Council). See, notice. Location: Newseum, 6th floor, 555 Pennsylvania Ave., NW.

12:15 PM. The Federal Communications Commission (FCC) will hold a meeting titled "Political Broadcasting Update". The speakers will be Bobby Baker and Hope Cooper of the FCC's Media Bureau. The FCBA asserts that this is an FCBA event. Location: National Association of Broadcasters (NAB), 1771 N St., NW.

10:00 AM. The House Ways and Means Committee (HWMC) will hold a hearing titled "China's Exchange Rate Policy". See, notice. Location: Room 1100, Longworth Building.

10:00 AM - 4:00 PM. Day two of a two day meeting of the U.S.-China Economic and Security Review Commission to consider drafts of material for its 2010 Annual Report to the Congress. See, notice in the Federal Register, August 10, 2010, Vol. 75, No. 153, at Page 48412. Location: Room 233, Hall of States, 444 North Capitol St., NW.

12:30 - 2:00 PM. The American Intellectual Property Law Association (AIPLA) will host a webcast event titled "Keeping Your Eye on the Prize: Drafting Patent Applications with Global Considerations". See, notice. Prices vary. CLE credits.

3:30 PM. The New America Foundation (NAF) will host an event titled "The Internet and Innovation: Why Network Architecture Matters". The main speaker is Barbara van Schewick (Stanford University law school), author of the book [Amazon] titled Internet Architecture and Innovation. The other speakers will be Sacha Meinrath (NAF), Gigi Sohn (Public Knowledge), and Derek Turner (Free Press). See, notice. Location: NAF, Suite 400 1899 L St., NW.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking and Notice of Inquiry (NPRM) [43 pages in PDF] regarding terrestrial broadband services within spectrum allocated to mobile satellite services (MSS). This NOI is FCC 10-126 in ET Docket No. 10-142. The FCC adopted and released this NOI on July 15, 2010. See, notice in the Federal Register, August 16, 2010, Vol. 75, No. 157, Pages 49871-49879. See also, story titled "FCC Adopts NPRM and NOI Regarding Use of MSS Spectrum for Mobile Broadband" in TLJ Daily E-Mail Alert No. 2,105, July 15, 2010.

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