12/1. The Federal Communications Commission (FCC) announced that it is scheduled to adopt an order at its December 21, 2010, event titled "open meeting" that includes rules for regulating broadband internet access service (BIAS) providers. However, this item will not reclassify BIAS as a Title II service. The FCC has not released the text of the proposed rules.

The FCC released a tentative agenda on November 30, 2010, that lists an "Open Internet Order". This agenda states that the FCC plan to adopt an order that contains "basic rules of the road to preserve the open Internet as a platform for innovation, investment, competition, and free expression. These rules would protect consumers’ and innovators’ right to know basic information about broadband service, right to send and receive lawful Internet traffic, and right to a level playing field, while providing broadband Internet access providers with the flexibility to reasonably manage their networks."

FCC Chairman Julius Genachowski read a speech [4 pages in PDF] on Wednesday morning, December 1, 2010, in which he described and advocated, but did not recite, these proposed rules. Then, FCC staff held a news conference after Chairman Genachowski read his speech.

See also, TLJ web page titled "TLJ Comparison Chart: Regulation of Broadband Internet Access Service (BIAS)", December 1, 2010. It compares the FCC Policy Statement (August 5, 2005), FCC NPRM (October 22, 2009), Verizon Google Proposal (August 9, 2010), Waxman Proposal (September 29, 2010), and Genachowski speech (December 1, 2010).

Genachowski's speech consisted largely of rhetoric in support of his proposal. However, he disclosed some of its content, in broad and vague terms.

He argued that "Broadband providers have natural business incentives to leverage their position as gatekeepers to the Internet" and that the forthcoming rules are "designed to guard against these risks".

His proposed rules contain transparency requirements for BIAS providers. He said that "consumers and innovators have a right to know basic information about broadband service, like how networks are being managed. The proposed framework therefore starts with a meaningful transparency obligation".

His proposed rules also address the freedoms to access content on the internet, to use applications and applications, and to connect devices. He said that "consumers and innovators have a right to send and receive lawful Internet traffic -- to go where they want and say what they want online, and to use the devices of their choice. Thus, the proposed framework would prohibit the blocking of lawful content, apps, services, and the connection of non-harmful devices to the network."

His proposed rules also contain a non-discrimination requirement. He said that "the proposed framework includes a bar on unreasonable discrimination in transmitting lawful network traffic".

Genachowski (at left) also referred to "the appropriateness of recognizing differences between fixed and mobile broadband ... Accordingly, the proposal takes important but measured steps in this area -- including transparency and a basic no blocking rule. Under the framework, the FCC would closely monitor the development of the mobile broadband market and be prepared to step in to further address anti-competitive or anti-consumer conduct as appropriate."

Finally, he touched on network management practices. He said that "broadband providers need meaningful flexibility to manage their networks -- for example, to deal with traffic that's harmful to the network or unwanted by users, and to address the effects of congestion. Reasonable network management is an important part of the proposal, recognizing that what is reasonable will take account of the network technology and architecture involved."

His proposed rules include several concessions to BIAS providers. He said that this item would not reclassify broadband as a Title II service. The nondiscrimination requirement and network management practices section are both subject to a reasonableness standard.

FCC staff stated at a news conference that the "core rules", which have not been released, consist of "one page".

Also, "usage based pricing can be consistent" with these proposed rules.

Finally, enforcement will be by "case by case application of these rules as disputes arise".

12/1. Federal Communications Commission (FCC) Chairman Julius Genachowski's proposal, announced in a speech [4 pages in PDF] on December 1, 2010, to adopt rules regulating broadband internet access service (BIAS) providers, if adopted, may be vacated by the Court of Appeals, on the grounds that the FCC lacks the requisite statutory authority.

The U.S. Court of Appeals' (DCCir) April 6, 2010, opinion [36 pages in PDF] in Comcast v. FCC, regarding BIAS regulation, and May 6, 2005, opinion [34 pages in PDF] in American Library Association v. FCC, overturning the FCC's broadcast flag rules, suggest this outcome.

Genachowksi stated in his December 1 speech that "the proposal is grounded in a variety of provisions of the communications laws, but would not reclassify broadband as a Title II telecommunications service. I am satisfied that we have a sound legal basis for this approach."

He did not utter the words "Title I" or "ancillary jurisdiction". Nor did he further discuss the legal authority for promulgating these rules. However, the FCC's legal argument would necessarily rest upon the argument of Title I authority and ancillary jurisdiction.

FCC Commissioner Michael Copps, released a statement in which he hinted at the weaknesses of the FCC's statutory authority to adopt these rules. He wrote that he wants rules to be "built on the most secure legal foundation so we don't find ourselves in court every other month".

Sacha Meinrath of the New America Foundation (NAF) wrote in a release that "abandonment of the certainty provided by Title II authority, all but guarantees that the proposed rules would not withstand a judicial challenge." Cathy Sloan of the Computer & Communications Industry Association (CCIA) stated in a release that the FCC is "simply rearranging deck chairs on the Title I Titanic".

In contrast, Richard Bennett of the Internet Technology and Innovation Foundation (ITIF) wrote in a release that the proposed rules are "very sensible". He elaborated that "The framework avoids the unnecessary and unproductive use of the Title II "nuclear option" which would not have been helpful in any case regarding the alleged violations of Open Internet principles we've seen in the past."

In Comcast v. FCC the Court of Appeals overturned the FCC's August 2008 Comcast order, in which the FCC  asserted authority to regulate the network management practices of BIAS providers. There is no statute that gives the FCC such authority. See, story titled "Court of Appeals Vacates FCC's Comcast Order", and related stories, in TLJ Daily E-Mail Alert No. 2,072, April 7, 2010.

The legal arguments that the FCC would advance in support of the forthcoming rules would likely be substantially similar to the legal arguments advanced by the FCC in the Comcast case. The Court of Appeals rejected the FCC's ancillary jurisdiction arguments then. It may reject the FCC's recycled ancillary jurisdiction arguments if it adopts the proposed rules.

On October 22, 2009, the FCC adopted a Notice of Proposed Rulemaking (NPRM) [107 pages in PDF] that proposes to regulate the network management practices of BIAS 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. See also, 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.

Following the Court of Appeals' Comcast opinion, Chairman Genachowski, recognizing the questionable legal basis for BIAS regulation based upon ancillary jurisdiction, initiated an inquiry into achieving similar regulation, but via reclassification of BIAS.

See, Notice of Inquiry (NOI) [64 pages in PDF] adopted 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. 2,098, June 18, 2010. See also, story titled "Three FCC Democratic Commissioners Back Plan to Regulate Broadband Internet Access Services under Title II" and related stories in TLJ Daily E-Mail Alert No. 2,083, May 6, 2010.

If the FCC adopts the proposed rules, the merits of its legal arguments will be weak. The FCC's best prospects for avoiding the same fate that befell is broadcast flag rules and Comcast order may be procedural.

For example, the FCC may dissuade key BIAS providers, and their trade groups, from filing, or intervening in, petitions for review. The National Cable and Telecommunications Association (NCTA), US Telecom and AT&T have all issued statements in which they did not threaten to file petitions for review. See also, related story in this issue titled "Representatives of Major BIAS Providers Express Cautious Non-Opposition to Genachowski Proposal".

Other potential challengers, desirous of maintaining their stock of good will at the FCC, and to evade regulatory retribution, may be cajoled into foregoing challenges.

More on ALA and Comcast Cases. The Court of Appeals 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."

If the FCC does adopt an order containing Genachowski's proposed rules, the order is also likely to recite in shotgun fashion a number of statutory sections. However, the FCC may be unable to convince the Court of Appeals that the proposed rules are reasonably ancillary to these sections.

The Court of Appeals wrote in Comcast v. FCC that "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.)

The Court of Appeals continued that the FCC "has failed to make that showing. It 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."

Barton Stearns Letter. House Republicans have not yet selected the House Commerce Committee (HCC) Chairman for the 112th Congress. However, on December 1, 2010, both Rep. Joe Barton (R-TX) and Rep. Cliff Stearns (R-FL) sent a letter to Genachowki in which they questioned the FCC's legal authority to adopt the proposed rules.

They wrote that "We understand that you intend to follow our recommendation and abandon proposals to reclassify broadband as an old-fashioned telephone service under Title II of the Communications Act. We congratulate you on that wise decision. As we have stated previously, treating the Internet as if it were common carriage is a mistake."

"We also understand, however, that you still are considering adopting network-neutrality rules by invoking ancillary authority under Title I of the Act. There are questions as to the FCC’s statutory authority to adopt these rules under Title I. The D.C. Circuit ruled in its April 2010 Comcast decision that the FCC had failed to demonstrate authority under Title I to regulate Internet network management."

"We therefore write to request your analysis of the FCC's authority under Title I to issue the proposed rule. In the absence of clear authority, the FCC should defer to Congress in this matter."

They request a response by December 10, 2010.

12/1. Sen. Kay Hutchison (R-TX), the ranking Republican on the Senate Commerce Committee (SCC), stated that Federal Communications Commission (FCC) Chairman Julius Genachowski's proposal to adopt rules regulating broadband is "regulatory overreach" and that "Genachowski needs to stand down from his plans to impose onerous net neutrality restrictions". See, Genachowski's speech [4 pages in PDF] of December 1, 2010.

She explained that "The Internet as an open platform for innovation is not an aspiration, it is a reality. I have not seen any evidence to date that would justify this regulatory overreach. In fact, the Internet has developed and thrived precisely because it has not been weighed down with burdensome government regulations. This has allowed the web to evolve to meet swift changes without having to worry about new government roadblocks holding up progress."

Sen. Hutchison (at right) stated that "I am especially troubled that this action would occur without Congressional input and before the new members of Congress have been sworn in. The American people clearly repudiated this type of government expansion on November 2nd."

She said that "FCC Chairman Genachowski needs to stand down from his plans to impose onerous net neutrality restrictions."

Finally, she said that "If he decides to move forward, I will explore all options available to keep the FCC from implementing regulations that will threaten the innovation and job creation opportunities associated with the Internet."

Former Supreme Court Justice John Paul Stevens wrote in the April 28, 2009 opinion in FCC v. Fox, that the FCC is essentially "an agent of Congress". There are numerous options available to the Congress for reminding the FCC of its dependent status.

Opponents of the rules could enact a bill that has the effect of overturning them. Although, these rules likely have enough supporters in the Congress to block passage of such legislation.

A more attainable recourse would be to attach a short provision to a large must pass appropriations bill that prohibits the FCC from expending any funds to implement or enforce the proposed rules. Such a provision would remain in effect for one year.

More broadly, the Congress could cut, or decline to increase, the FCC's annual budget. For example, the Federal Trade Commission (FTC) attempted to act independently of the Congress on some issues of interest to the Congress in the 1970s, and then saw its budget shrink over many years.

Alternatively, the Congress could transfer existing FCC authority, or grant new authority, to agencies other than the FCC, such as the FTC, or National Telecommunications and Information Administration (NTIA). Similarly, the Congress could withhold from the FCC its desired amendments to the Communications Act.

Members of Congress also have opportunities to engage recalcitrant FCC officials in more personal ways. Commissioners and staff can be called to testify before committees, where Representatives and Senators can scold them. A further option is to criticize the witnesses, and then depart from the hearing room, leaving them in the embarrassing position of explaining themselves to empty chairs. (See, June 11, 1998, hearing of the SCC's Subcommittee on Communications, and TLJ story titled "Senate Communications Subcommittee Berates FCC", June 18, 1998.) Another option is to abandon the protocol that government witnesses precede non-government witnesses. That is, call FCC representatives to testify, also invite FCC critics to testify, and reverse the normal order of testimony, leaving the FCC representatives the uncomfortable choice of either waiting while their critics abuse them, or walking out of a Congressional hearing. (The House Commerce Committee (HCC) employed this tactic during the tenure of former FCC Chairman William Kennard.)

Sen. Hutchison will remain in the minority in the 112th Congress. The Chairman, Sen. John Rockefeller (D-WV), is generally supportive of Genachowski on this issue. Hence, her options within the SCC are limited. However, critics of Genachowski's proposal will chair the HCC and its Subcommittee on Communications, Technology and the Internet in the 112th Congress.

12/1. Federal Communications Commission (FCC) Commissioner Robert McDowell, one of the two Republican appointees, disclosed in a statement that "I strongly oppose this ill-advised maneuver."

McDowell (at left) wrote in his statement that "Minutes before midnight last night, Chairman Genachowski announced his intent to adopt sweeping regulations of Internet network management at the FCC’s open meeting on December 21. I strongly oppose this ill-advised maneuver. Such rules would upend three decades of bipartisan and international consensus that the Internet is best able to thrive in the absence of regulation."

"Pushing a small group of hand-picked industry players toward a ``choice´´ between a bad option (Title I Internet regulation) or a worse option (regulating the Internet like a monopoly phone company under Title II) smacks more of coercion than consensus or compromise." (Internal quotations and parentheses in original.)

McDowell concluded that "This ``agreement´´ has been extracted in defiance of not only the courts, but a large, bipartisan majority of Congress as well. Both have admonished the FCC not to reach beyond its statutory powers to regulate Internet access. By choosing this highly interventionist course, the Commission is ignoring the will of the elected representatives of the American people."

Similarly, Commissioner Meredith Baker, the other Republican appointee, wrote in a statement that "This is a mistake. We do not have authority to act."

She added that "I urge the Chairman to defer action on Net Neutrality until the new Congress has had an opportunity to address this issue. Until such time, it would be reckless and inappropriate for the Commission to act upon the Chairman's controversial and partisan proposal."

Randy May of the Free State Foundation (FSF) stated in a release that this would be a "new Internet regulatory regime."

He wrote that "This is a prime example of what's wrong with the FCC. It tends to try to fix things that aren't broken, here the dynamic Internet service market, while avoiding fixing long-standing acknowledged problems, like the broken universal service subsidy regime. In today's marketplace, consumers suffer from such misplaced priorities which favor new regulations over reform of outdated ones. While it may turn out that the proposed regulatory regime is 'less harmful' than it could have been, less rather than more harmful ought not to be a government agency's objective."

Ryan Radia of the Competitive Enterprise Institute (CEI) stated in a release that "The FCC's undue haste suggests a disdain for Congress's authority that flies in the face of proper agency accountability. The next Congress should swiftly rein in this rogue regulatory body by stripping the Commission of the authority to impose net neutrality rules."

The CEI's Wayne Crews added that "the FCC is a fundamentally backwards-looking institution", concerned with "expanding its own turf".

12/1. Representatives of major broadband internet access service (BIAS) providers expressed cautious non-opposition to Federal Communications Commission (FCC) Chairman Julius Genachowski's December 1, 2010, proposed BIAS rules.

Kyle McSlarrow, head of the National Cable and Telecommunications Association (NCTA), stated in a release, that based upon the NCTA's understanding of the proposed rules, it is a "fair resolution", but that if the proposed rules are changed before adoption, the NCTA may challenge them.

He elaborated that "broadband services should be regulated with a light touch under Title I of the Communications Act and not as common carrier services under Title II", and that "net neutrality regulation is unnecessary in light of the competitive marketplace, the absence of conduct that was harmful to consumers or competition, and the very real risk that regulation would undermine ... rapid growth in the development of broadband networks ..."

Nonetheless, McSlarrow (at right) added that the NCTA participated in negotiations in the last six months, which "produced a rough consensus on a number of points, which we believe are reflected in the order circulated today".

He said that the proposed rules are "grounded within the framework of Title I" and "basically codify a code of conduct and commitments made by our industry five years ago; add a discrimination principle based on a ``reasonableness´´ standard; and add a transparency rule that we believe can be helpful in aiding customer choice."

He added that "the rules do not preclude or inhibit our ability to innovate and deploy new and specialized services", "will not ... result in price regulation", and will allow "usage based pricing".

He concluded that "we believe that it is a fair resolution of this set of issues and that it is proposed in a way that achieves our essential and shared objectives: preserving the openness of the Internet and the incentives to invest and innovate for the benefit of consumers. Should the order change in any material way from our understanding, we reserve our rights to vigorously challenge any such rule. Accordingly, NCTA will await the final resolution of the order at the next FCC meeting before making a final determination of our views or on any actions we might take subsequent to that meeting."

Jim Cicconi of AT&T stated in a release that "the FCC appears to be embracing a compromise solution that is sensitive to the dynamics of investment in a difficult economy and appears to avoid over-regulation".

He said that "AT&T's strong preference would be for the FCC to refrain from any regulation in the Internet space. We feel the industry's track record, the utter absence of any specific ongoing problem, and the state of the economy all argue for regulatory restraint. We also believe, based on jurisdictional concerns, that the issue should rightly be deferred to the Congress, a view also expressed by a bipartisan majority of that body."

"We understand that the FCC Chairman has prepared a compromise proposal" that "would avoid onerous Title II regulation; would be narrowly drawn along the lines of a compromise we have endorsed previously; would reject limits on our ability to properly manage our network and efficiently utilize our wireless spectrum; would recognize the capabilities and limitations of different broadband technologies; would ensure specialized services are protected against intrusive regulation; and would provide for a case-by-case resolution of complaints that also encourages non-governmental dispute settlement."

He concluded that "While any final statement of position by AT&T must await a careful reading of the actual order and rules when issued, we are pleased that the FCC appears to be embracing a compromise solution that is sensitive to the dynamics of investment in a difficult economy and appears to avoid over-regulation." And, "we remain committed to working with the FCC".

Walter McCormick, head of the US Telecom, stated in a release that "We appreciate the Chairman's prudent decision to rely on the Commission's Title I authority, rather than Title II, in promulgating consumer protection standards that are consistent with the way we conduct our businesses today, that parallel the Internet freedoms that Americans currently enjoy, and that lie largely within the narrow parameters of the legislative proposal developed earlier this year by House Energy & Commerce Committee Chairman Henry Waxman."

He said too that "it is appropriately the province of the United States Congress to determine the proper policy environment for the 21st Century Internet -- a policy that should be market-based, rely on competition rather than regulation, and treat all providers of broadband services, technologies and applications in the Internet economy according to a common set of standards."

"We nevertheless look forward to continuing to work with Chairman Genachowski on this and other matters", said McCormick.

Hannukah begins.

The House will meet at 10:00 AM for legislative business. The schedule for the week includes consideration of S 2847 [LOC | WW], the "Commercial Advertisement Loudness Mitigation Act" or "CALM Act". See, Rep. Hoyer's schedule for the week of November 29.

The Senate will meet at 9:30 AM.

8:00 AM - 5:15 PM. Day one of a two day partially closed meeting of the National Science Foundation's (NSF) National Science Board. See, notice in the Federal Register, November 26, 2010, Vol. 75, No. 227, at Pages 72843-72844. Location: Room 1235, NSF, 4201 Wilson Blvd., Arlington, VA.

9:00 - 10:30 AM. The Center for American Progress (CAP) will host a panel discussion titled "The Need for a U.S. Competitiveness Strategy". The speakers will be Rep. Bart Gordon (D-TN), Charlene Barshefsky (USTR in the Clinton administration), William Daley (Secretary of Commerce in the Clinton administration), Leo Gerard (United Steelworkers Union), Brad Smith (General Counsel of Microsoft), John Podesta (CAP), and Sarah Wartell (CAP). See, notice and registration page. Location: CAP, 10th floor, 1333 H St., NW.

10:00 AM. The Senate Judiciary Committee (SJC) will hold an executive business meeting. The agenda includes consideration of S 3728 [LOC | WW], the "Innovative Design Protection and Piracy Protection Act". The agenda also again includes consideration of numerous judicial nominees: Robert Chatigny (USCA/2ndCir), Susan Carney (USCA/2ndCir), James Graves (USCA/5thCir), James Boasberg (USDC/DC), Amy Jackson (USDC/DC), Edward Davila (USDC/NDCal), Amy Totenberg (USDC/NDGa), James Shadid (USDC/CDIll), Sue Myerscough (USDC/CDIll), Paul Holmes (USDC/WDArk), Anthony Battaglia (USDC/SDCal), Diana Saldana (USDC/SDTex). The SJC rarely follows its published agendas. The SJC will webcast this event. See, notice. Location: Room 226, Dirksen Building.

10:30 AM - 12:00 NOON. The Heritage Foundation (HF) will host a panel discussion titled "The Implications of Taiwan's Big City Elections". The speakers will include Ho Szu-yin, former Deputy National Security Adviser, Taiwan. See, notice. The HF will webcast this event. Location: HF, 214 Massachusetts Ave., NE.

11:00 AM - 12:00 NOON. The House Intelligence Committee (HIC) will hold a closed hearing titled "WikiLeaks". See, notice. Location: Room HVC-304, Capitol Building.

3:30 - 4:45 PM. The New America Foundation (NAF) will host an event titled "Technology, Social Innovation and Civic Participation". See, notice and registration page. Location: NAF, Suite 400, 1899 L St., NW.

The House will meet at 10:00 AM for legislative business. The House will hold a postponed suspension vote on S 2847 [LOC | WW], the "Commercial Advertisement Loudness Mitigation Act" or "CALM Act". See, Rep. Hoyer's schedule for the week of November 29, and schedule for December 2.

The Senate will meet at 9:30 AM.

8:00 AM - 3:00 PM. Day two of a two day partially closed meeting of the National Science Foundation's (NSF) National Science Board. See, notice in the Federal Register, November 26, 2010, Vol. 75, No. 227, at Pages 72843-72844. Location: Room 1235, NSF, 4201 Wilson Blvd., Arlington, VA.

8:30 AM - 12:30 PM. The Phoenix Center for Advanced Legal & Economic Public Policy Studies will host a half day conference titled "2010 Annual U.S. Telecoms Symposium". At 8:45 AM, Lawrence Spivak (Phoenix President) will speak. At 9:00 - 10:00 AM, there will be a panel titled "Economists Roundtable". The speakers will be Tim Brennan (UMBC), Jonathan Baker (FCC Chief Economist), Joe Farrell (FTC Chief Economist), George Ford (Phoenix Chief Economist), and Jerry Duvall (FCC). At 10:15 - 10:45 AM, Blair Levin (Aspen Institute) will speak titled "Rethinking Broadband Policy". At 11:00 AM - 12:00 NOON, there will be a panel titled "Promoting Innovation, Investment and Jobs". The speakers will be Paul de Sa (Chief of the FCC's Office of Strategic Planning and Policy Analysis), Michael Mandel (Visible Economy), Phil Weiser (EOP), Michael Rollins (Citi Investment Research), and George Ford (Phoenix). At 12:00 NOON - 12:30 PM, FCC Commissioner Meredith Baker will speak. This event is free and open to the public. See, notice and registration page. Location: University Club, 1135 16th St., NW.

10:30 AM. The House Commerce Committee's (HCC) Subcommittee on Commerce, Trade and Consumer Protection will hold a hearing titled "Do-Not-Track Legislation: Is Now The Right Time?". See, notice. Location: Room 2123, Rayburn Building.

12:00 NOON - 2:00 PM. The American Bar Association's (ABA) Section of Antitrust will host a telecast panel discussion titled "Symposium on Broadband Reclassification and Net Neutrality: What's at Stake? What's the End Game?". The speakers will be Neil Fried (Republican Counsel, House Commerce Committee), Parul Desai (Consumers Union), Glenn Manishin (Duane Morris), Lee Selwyn (Economics and Technology, Inc.), Marty Stern (K&L Gates), and Adam Di Vincenzo (Gibson Dunn). See, notice [PDF] and registration page.

2:00 PM. The Federal Communications Commission's (FCC) Office of Strategic Plans and Policy Analysis will host presentation by Dan Reed (Microsoft) titled "Cloud Services and Natural User Interfaces". To request permission to attend, contact Jonathan Levy at 202-418-2030 or jlevy at fcc dot gov. Free. See, notice. Location: FCC, 445 12th St., SW.

2:00 PM. The Federal Communications Commission's (FCC) Advisory Committee on Diversity for Communications in the Digital Age will meet. See, notice in the Federal Register, November 16, 2010, Vol. 75, No. 220, at Page 70004. Location: FCC, Commission Meeting Room, 445 12th St., SW.

2:40 PM. The Federal Trade Commission's (FTC) Bureau of Economics will host a presentation titled "Pro and Anti-Competitive Effects of Certification in Markets with Asymmetric Information". The speaker will be Thomas Jeitschko (Department of Justice and Michigan State University). For more information, contact Loren Smith at lsmith2 at ftc dot gov or Tammy John at tjohn at ftc dot gov. Location: ground floor Conference Center, 601 New Jersey Ave., NW.

Deadline to submit comments to the Office of Management and Budget (OMB) regarding its proposed guidance on President Obama's June 18, 2010, memorandum to the heads of agency boards and commissions regarding "Lobbyists on Agency Boards and Commissions". Comments are due within "30 days from the publication of this notice", which is December 2, 2010. See, notice in the Federal Register, November 2, 2010, Vol. 75, No. 211, at Pages 67397-67399.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) regarding assignment of telephone numbers associated with internet based Telecommunications Relay Service (iTRS), Video Relay Service (VRS) and IP Relay. The FCC adopted this item on September 16, 2010, and released the text on September 17. It is FCC 10-161 in CG Docket No. 03-123, WC Docket No. 05-196, and WC Docket No. 10-191. See, notice in the Federal Register, November 2, 2010, Vol. 75, No. 211, at Pages 67333-67341.

The House may meet at 9:00 AM for legislative business. See, Rep. Hoyer's schedule for the week of November 29.

Supreme Court conference day (discussion of argued cases, and decision on cert petitions). Closed.

10:00 AM. The House Judiciary Committee's (HJC) Subcommittee on the Constitution, Civil Rights, and Civil Liberties will hold a hearing titled "Civil Liberties and National Security". See, notice. Location: Room 2141, Rayburn Building.

5:00 PM. Deadline to submit comments to the National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) regarding its draft of SP 800-78 -3 [20 pages in PDF] titled "Cryptographic Algorithms and Key Sizes for PIV".

Deadline to submit reply comments to the Copyright Office (CO) in response to its notice of proposed rulemaking (NPRM) regarding "whether a cable operator may receive refunds in situations where it has failed to pay for the carriage of distant signals on a system-wide basis under the Copyright Act, before it was amended to allow a cable system to calculate its royalty fees on a community-by-community basis." See, original notice in the Federal Register, October 4, 2010, Vol. 75, No. 191, at Pages 61116-61118, and correction notice in the Federal Register, October 12, 2010, Vol. 75, No. 196, at Page 62488. See also, story titled "Copyright Office Issues NPRM Regarding Refunds Under the Cable Statutory License" in TLJ Daily E-Mail Alert No. 2,140, October 11, 2010.

The Intellectual Property Owners Association (IPO) will host an event titled "PTO Day: 21st Annual Conference on U.S. Patent and Trademark Office Law and Practice". See, notice. Location: The Ronald Reagan Building & International Trade Center.

8:30 AM - 12:30 PM. The Brookings Institution (BI) will host an event titled "Internet Policymaking in its Third Decade". Location: BI, 1775 Massachusetts Ave., NW.

1:30 - 4:30 PM. The Federal Communications Commission (FCC) will host an event titled "scoping meeting". This is a hearing in its proceeding regarding its Programmatic Environmental Assessment (PEA) of its Antenna Structure Registration (ASR) program. See, November 12, 2010, Public Notice (PN). This PN is DA 10-2178 in WT Docket No. 08-61 and WT Docket No. 03-187. See also, notice in the Federal Register, November 17, 2010, Vol. 75, No. 221, at Pages 70166-70168. Location: FCC, Commission Meeting Room, 445 12th St., SW.

2:00 PM. The Federal Communications Commission's (FCC) Office of Strategic Plans and Policy Analysis will host presentation by Joel Waldfogel (University of Minnesota) titled "Pop Internationalism: Has a Half Century of World Music Trade Displaced Local Culture?". To request permission to attend, contact Jonathan Levy at 202-418-2030 or jlevy at fcc dot gov. Free. See, notice. Location: FCC, 445 12th St., SW.

5:00 PM. Extended deadline to submit comments to the National Telecommunications and Information Adminitration's (NTIA) Internet Policy Task Force (IPTF) regarding government policies that restrict global information flows on the internet. See, original notice in the Federal Register, September 29, 2010, Vol. 75, No. 188, at Pages 60068-60073, and story titled "NTIA Seeks Comments on Governments' Restrictions of Free Flow of Information on the Internet" in TLJ Daily E-Mail Alert No. 2,137, October 1, 2010. See also, extension notice in the Federal Register, November 18, 2010, Vol. 75, No. 222, at Page 70714.

Deadline to submit comments to the Department of Commerce's (DOC) Bureau of Industry and Security (BIS) regarding small and medium enterprises' (SMEs) understanding of and compliance with export controls maintained pursuant to the Export Administration Regulations (EAR). See, notice in the Federal Register, October 6, 2010, Vol. 75, No. 193, at Pages 61706-61707.

8:30 AM - 3:00 PM. The Department of Commerce's (DOC) National Institute of Standards and Technology's (NIST) Malcolm Baldrige National Quality Award Board of Overseers will meet. See, notice in the Federal Register, September 17, 2010, Vol. 75, No. 180, at Page 56994. Location: NIST, Administration Building, Lecture Room B, Gaithersburg, MD.

9:00 AM - 6:00 PM. The American Antitrust Institute (AAI) will host an event titled "4th Annual Future of Private Antitrust Enforcement". At 12:45 PM Jonathan Leibowitz (FTC Chairman) will give a lunch speech. The price to attend is $100. CLE credits. For more information, contact Sarah Frey at 410-897-7028. See, notice and agenda [PDF]. Location: National Press Club, Ballroom, 529 14th St., NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in OPTi, Inc. v. Apple, Inc., App. Ct. No. 2010-1129, an appeal from the U.S. District Court (EDTex) in a patent case regarding computer memory cache technology. Location: Courtroom 402, 717 Madison Place, NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in McKesson Information Solutions v. Epic Systems Corp., App. Ct. No. 2010-1291, an appeal from the U.S. District Court (NDGa) in a patent case regarding internet based doctor patient communications software. Location: Courtroom 402, 717 Madison Place, NW.

12:00 - 1:00 PM. The DC Bar Association will host a panel discussion titled "The IP Enforcement Agenda: Why the Focus on Enforcement, and What Does It Mean for IP Practitioners?". The speakers will be John Bergmayer (Public Knowledge), David Green (NBC Universal), Chun Wright (attorney), and Mitchell Stoltz (Constantine Cannon). The price to attend ranges from $15 to $25. For more information, contact 202-626-3463. See, notice. Reporters are barred from most DC Bar events. Location: DC Bar Conference Center, B-1 Level, 1250 H St., NW.

The Federal Communications Commission's (FCC) Auction 89, regarding 218-219 MHz and Phase II 220 MHz Services licenses, is scheduled to commence.

8:30 AM - 5:15 PM. Day one of a two day meeting of the National Science Foundation's (NSF) Advisory Committee for Cyberinfrastructure. See, notice in the Federal Register, November 26, 2010, Vol. 75, No. 227, at Page 72843. Location: Room 1235, NSF, 4201 Wilson Blvd., Arlington, VA.

9:00 AM. The Department of Commerce's (DOC) Bureau of Industry and Security's (BIS) Regulations and Procedures Technical Advisory Committee (RPTAC) will meet. See, notice in the Federal Register, November 22, 2010, Vol. 75, No. 224, at Page 71075. Location: Room 3884, Hoover Building, 14th Street between Constitution and Pennsylvania Avenues, NW.

9:00 AM - 12:45 PM. The Department of Commerce's (DOC) National Advisory Council on Innovation and Entrepreneurship will meet by teleconference. The call in number is 888-942-9574; the passcode is 6315042. See, notice in the Federal Register, November 24, 2010, Vol. 75, No. 226, at Page 71670.

9:00 AM. The Internal Revenue Service's (IRS) Electronic Tax Administration Advisory Committee (ETAAC) will meet. See, notice in the Federal Register, November 22, 2010, Vol. 75, No. 224, at Page 71188. Location: IRS, Room 2116, 1111 Constitution Ave., NW.

10:00 AM. The Senate Judiciary Committee (SJC) will hold an executive business meeting. The agenda includes consideration of numerous judicial nominees, including Robert Chatigny (USCA/2ndCir). The SJC rarely follows its published agendas. The SJC will webcast this event. See, notice. Location: Room 226, Dirksen Building.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Michael S. Sutton Ltd. v. Nokia Corp., App. Ct. No. 2010-1218, an appeal from the U.S. District Court (EDTex) in a patent case regarding technology for sending 8 bit byte messages over radio paging networks that have been configured to send 7 bit byte messages. Location: Courtroom 201, 717 Madison Place, NW.

1:00 - 4:15 PM. The New America Foundation (NAF) will host an event titled "International Broadcasting and Public Media: Mission and Innovation in the Digital Environment". See, notice and registration page. Location: NAF, Suite 400, 1899 L St., NW.

Day one of a two day event sponsored by the SANS Institute titled "What Works in Incident Detection & Log Management Summit 2010". See, notice. Location: Dupont Hotel, 1500 New Hampshire Ave., NW.

12/1. Some of the groups that have long urged the Federal Communications Commission (FCC) to regulate broadband internet access service (BIAS) providers now argue the FCC Chairman Julius Genachowski's proposed rules are too weak or watered down.

Several groups would like the FCC or Congress to take a more regulatory approach, for example, by also classifying BIAS as a Title II service, and/or by imposing the same regulatory regime on both wireline and wireless BIAS.

Ed Black, head of the Computer & Communications Industry Association (CCIA), stated in a release that "the rule being circulated today has been drastically watered down from the principled original, and is replete with loopholes and exceptions that will weaken and perhaps nullify its public interest protections".

He added that "If the FCC doesn't take effective steps to keep access to the Internet content neutral, the dominant phone and cable companies will have the power and latitude to control bandwidth and prioritize content and users according to their whims and parochial interests."

Sacha Meinrath of the New America Foundation (NAF) wrote in a release his group wants the FCC to reclassify broadband. He wrote that "Without fundamental changes to the current order, the Chairman's proposal will be a great victory for the largest telecom corporations".

He argued that the proposed rules "would allow wireless providers to continue to block consumer's access to lawful applications, content, and devices; open the door to a `pay to play´ Internet where providers would create toll roads to prioritize the traffic of the largest and richest media conglomerates and content companies; and, permit all broadband providers to block consumer's access to applications and content they deem unwanted or harmful under the guise of `reasonable network management.´"

He also wrote that "abandonment of the certainty provided by Title II authority, all but guarantees that the proposed rules would not withstand a judicial challenge."

Tyrone Brown of the Media Access Project (MAP) stated in a release that "MAP is very disappointed at initial reports about the Chairman’s proposal. Open Internet rules must include a basis for extending service to those not now covered, full application to wireless, protection against all efforts to block or degrade Internet access, and enforceable rules rather than an ad hoc complaint-based process. Most importantly, it appears that the Chairman does not contemplate invoking the Commission's `Title II´ authority to ensure that the rules will withstand judicial review. MAP will work with the Commission to achieve these objectives; anything less will be checkmate by the phone and cable companies."

Gigi Sohn, head of the Public Knowledge (PK), stated in a release that reclassification "would establish a firmer legal foundation, not only for open Internet rules but also for broadband policy generally." She urged the FCC to "conclude the proceeding and adopt" a reclassification item "at a future meeting". She also wants the FCC to "strengthen the order" to be adopted on December 21.

Leslie Harris, head of the Center for Democracy and Technology (CDT), stated in a release that "This rulemaking is about preserving the characteristics that have made the Internet such an overwhelming success. It is a first step but a critical one. At the same time, adopting these historic rules will not be the end of the Internet Neutrality debate, it will be just the end of the beginning. The Commission will need to vigorously enforce the new rules. And it will need to address the critical question of protections for wireless Internet users, which appear limited in the current proposal."

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