12/9. Federal Communications Commission (FCC) Commissioner Meredith Baker gave a blunt speech [PDF] titled "Net Neutrality: The Wrong Path for a Pro-Jobs, Pro-Investment Agenda". She said that the FCC should not adopt rules regulating broadband internet access service (BIAS) providers at its meeting scheduled for December 21.

Baker, however, is likely to be one of only two votes against adoption of BIAS rules. On December 21, there are likely to be three votes for adoption.

She said the the FCC lacks statutory authority to do so and may be overturned by the Court of Appeals, that the majority of the Congress opposes such action, that there is no need for such rules, and that the rules could harm innovation, investment, and the economy.

She said that "we seem to be racing towards three unelected officials crafting a national Internet policy on their own".

The FCC "has identified no market failure or systemic public interest harm that threatens the Open Internet", and "there is no crisis we must resolve necessitating a rushed decision this month", said Baker. Rather, "what we are doing is checking the box on a campaign promise".

Baker (at right) also said that the FCC's Title II reclassification proceeding was "used as leverage to seek agreement on a Title I approach".

The FCC adopted a Notice of Inquiry (NOI) [64 pages in PDF], that proposes to reclassify broadband internet access services as Title II services, on June 17, 2010. That NOI is FCC 10-114 in GN Docket No. 10-127. See also, story titled "FCC Adopts Broadband Reclassification NOI", and related stories, in TLJ Daily E-Mail Alert No. 2,097, June 18, 2010.

She asserted that "Title II is a job-killing proposal that would inhibit the ability of providers to raise capital to invest in broadband. The threat of Title II was an unmistakable -- and completely avoidable -- economic drag on the industry for the summer".

She said that the FCC "plans this month to adopt rules that mandate that the government will decide how Internet networks are to be managed. We do this against the will of the courts, which have told us that we lack authority to act. And Congress, which has asked us bluntly not to act, and definitely not this month. While that should be more than sufficient reason, Net Neutrality is also the wrong policy to drive more investment, jobs, and opportunity into our Internet economy."

She added that "In April, the D.C. Circuit ruled unambiguously that the Commission ``failed to make [its] showing´´ that Title I-based Net Neutrality protections were within the FCC’s authority."

See, April 6, 2010, opinion [36 pages in PDF] of the U.S. Court of Appeals (DCCir) in Comcast v. FCC. This opinion vacated the August 2008 order of the FCC that asserted authority to regulate the network management practices of broadband internet access providers. The Court held that the FCC lacks statutory authority to do this. See also, 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.

She predicted that the forthcoming rules, like the Comcast order, would be overturned. "With respect to Net Neutrality specifically, the court did not say go back and think creatively about how to contort the statute to discover or discern new authority. Yet, that is how we intend to proceed. The Chairman's approach would have the Commission adopt policies far more intrusive than those previously rejected under effectively the same legal analysis. I see nothing that has changed so significantly in the past eight months with respect to our statutory authority to suggest a different outcome if, and when, our action is challenged."

"Our intended approach to Net Neutrality -- namely adopting a version of a draft bill from Chairman Waxman -- underscores that we are acting beyond the appropriate role of an independent agency", said Baker. "We take the bill, write our own legislative history, and implementing order in a document 8 times as long. We will adopt implementing regulations for a statute that has never been enacted. By definition, we are doing much more than Waxman proposed, exercising our own discretion and judgment. The Waxman bill would have given the Commission very specific responsibilities. By doing it ourselves, there are no jurisdictional limits. We delegate to ourselves an unbounded regulatory power to adopt policies to promote a particular vision for the Internet. Congress is right to ask us to stand down."

See, Rep. Henry Waxman's (D-CA) draft bill, and story titled "House Recesses Without Moving Any Internet Regulation Legislation" in TLJ Daily E-Mail Alert No. 2,136, September 30, 2010. See also, TLJ chart comparing the provisions contained in the Waxman proposal, Verizon-Google proposal, FCC NPRM, and other items.

She also noted that the FCC's net neutrality proceeding is over a year old and that the FCC has "held five workshops and sought comment on the original proposed rules". But, she continued, "that work and those comments are from the beginning of this year, before iPads and 4G. More pertinent, the core public comment occurred before dozens of closed door FCC meetings were held with a select handful of prominent special interest groups and large companies. And, before Chairman Waxman socialized the draft bill on which our proposed action is supposedly based".

The FCC commenced its network neutrality proceeding on October 22, 2009, by adoption of a Notice of Proposed Rulemaking (NPRM) [107 pages in PDF]. That NPRM is FCC 09-93 in GN Docket No. 09-191 and WC Docket No. 07-52. See, stories titled "FCC Adopts Internet Regulation NPRM" and "Statutory Authority and Ancillary Jurisdiction", and related stories, in TLJ Daily E-Mail Alert No. 2,008, October 23, 2009.

"The Broadband Plan in March set forth the two core challenges facing the Internet ecosystem: how do we reach the 5 percent of the nation that does not have access to 4 Mbps or more terrestrial broadband; and how do we get almost a third of the nation to connect to broadband." But, she added, the proposed regulations would do nothing to help broadband deployment or adoption.

"What it would do is favor the edge over networks. It would ensure a future where innovation is focused primarily on the edge -- in applications and devices. This would represent a stark departure from today's Internet where innovation is spread across the Internet economy to the great benefit of consumers, and where government has not picked winners and losers", said Baker. Hence, "we will be exporting on December 21 the next generation of the Internet. Carriers in Asia and Europe -- free from prescriptive rules or ominous warnings -- will be the ones innovating, and creating value for consumers and business. This translates into jobs, this translates into engineering and entrepreneurial opportunities, and this translates into future competitiveness. To be blunt, freezing America’s core networks -- by law or by admonition -- would be a job killer."

She also said that "To the extent Net Neutrality rules are sought out of a perceived concern that ISPs will act as gatekeepers, our efforts are better directed at facilitating advanced wireless network entry. The best means to combat concern about alleged gatekeepers is to build more roads. Next-generation mobile broadband offers the promise of viable third, fourth, fifth, and sixth broadband pipes into our homes."

In concluding, she said that she supports "putting the draft Net Neutrality rules out for comment; closing the Title II docket to allow true compromise solutions; working with Congress pro-actively on solutions; and shifting our efforts to focus on a bipartisan pro-jobs agenda."

12/9. Federal Communications Commission (FCC) Commissioner Mignon Clyburn gave a speech in which she advocated adoption of network neutrality rules at the December 21 FCC meeting.

Clyburn (at right) said that consumers' "access to an open Internet must be protected".

She spoke too about the absence of Congressional legislation. She said that "consensus is incredibly difficult to reach" in the Congress.

"We were established to deal with just these types of difficult, technological issues", said Clyburn. "While Congress can often take a long time to act, the Commission is often more nimble and best able, to adapt to the dynamic changes in the marketplace."

"I am not opposed to Congress acting, but if it takes a number of years before effective policy takes shape and gets implemented, that potential lag time could actually do more harm, by perpetuating uncertainty in the marketplace."

She also said that between now and December 21 her focus will be "the wireless piece of the item. While I recognize that there are distinctions between wired and wireless networks, I think it is essential that our wireless networks -- those of the present and future -- grow in an open way just as our wired ones have."

12/10. The Free Press (FP), Media Access Project (MAP), New America Foundation (NAF), Public Knowledge (PK), and others sent a letter [7 pages in PDF] to the Federal Communications Commission (FCC) urging it to adopt "enforceable rules that represent real Network Neutrality".

They wrote that "adopting limited protections while giving tacit approval to other harmful practices will not adequately preserve the open Internet. If the current draft Order is adopted without substantial changes, Internet Service Providers will be free to engage in a number of practices that harm consumers, stifle innovation and threaten to carve up the Internet in irreversible ways."

First, they want the order to prohibit paid prioritization. "The draft Order reportedly prohibits ISPs from engaging in “unjust and unreasonable” discrimination. But it does not explicitly single out paid prioritization as an example of unjust or unreasonable discrimination. This unacceptable loophole threatens to swallow the entire rule."

Second, they want more regulation of wireless broadband internet access service (BIAS). They wrote that "the draft Order apparently leaves wireless users vulnerable to application blocking and discrimination. The draft order reportedly would only prohibit outright blocking of websites and competing voice and video telephony applications, but would not restrict other blocking, degrading or prioritization. ... Furthermore, the FCC must prohibit all forms of economic-motivated discrimination on wireless networks."

They also oppose a "specialized services loophole". They wrote that "The Verizon-Google pact ... created a carve-out from Net Neutrality rules for so-called ``managed´´ or ``specialized´´ services". See, 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.

The net neutrality proponents argue that "While some highly sensitive and truly specialized services might not be best provided over the open Internet, there is no reason for the FCC to create a specialized services loophole that would undermine Net Neutrality. Unfortunately, the draft Order apparently opens the door to specialized services without any safeguards."

They also want the rules' definition of BIAS to be written in a manner that does not enable some service providers to fall outside of the definition, and thereby enable such providers to "exempt themselves from the rules".

They want the order to contain a "definition of reasonable network management that ensures that traffic management is only used in a manner that is valid in proportion, means, geography and time. Reasonable network management cannot be a loophole used by network operators to evade the rules".

Finally, they want the order "must be based on sound legal footing" and "restore its unquestionable authority", a reference to reclassification of BIAS under Title II.

12/8. The Federal Communications Commission's (FCC) Wireline Competition Bureau's (WCB) Industry Analysis and Technology Division (IATD) released a report [87 pages in PDF] titled "Internet Access Services: Status as of December 31, 2009". It shows rapid adoption of broadband by consumers. See also, FCC release.

This report, which is based upon year old data, states that the total number of residential connections with over 200 kbps in at least one direction increased from 94,231,000 in June of 2009 to 108,386,000 in December of 2009. Most of this increase came in wireless broadband, which grew from 22,531,000 to 34,435,000.

Also, residential connections with at least 3 mbps downstream and 768 kbps upstream increased from 31,557,000 to 39,786,000 in the same time period. Fixed broadband in this category increased from 31,362,000 to 37,149,000, while wireless increased from 196,000 to 2,638,000.

This report states that of all residential broadband connections of at least 200 kbps one way at the end of 2009, 38.2% were by cable modem, 31.8% were by mobile wireless, and 25.3% were by DSL.  For broadband connections of at least 3mbps downstream and 768 kpbs upstream, 70% were by cable modem, 14.2% were by DSL, and 6.6% were by mobile wireless.

This report also finds a correlation between adoption rates and income. That is, people with more money are more likely to subscribe to broadband.

This report is based upon information collected via FCC Form 477.

The just released report is another in a series of reports prepared every six months by the FCC's IATD. See, other recent reports:

• report titled "Internet Access Services: Status as of June 30, 2009"
• report titled "High-Speed Services for Internet Access: Status as of December 31, 2008"
• report titled "High-Speed Services for Internet Access: Status as of June 30, 2008"
• report titled "High-Speed Services for Internet Access: Status as of December 31, 2007"
• report titled "High-Speed Services for Internet Access: Status as of June 30, 2007"

Competition. This report contains some information about the number of service providers by area. Number of providers is relevant to competition analysis. Generally, the more providers, the more competitive the market.

Maps 3, 4, 5, and 6 (at pages 62-65) provide a visual representation of the number of service providers by area, measured four different ways.

For example, Map 5 is titled "Providers of Residential Fixed Connections at Least 3 mbps Downstream and 768 kbps Upstream by Census Tract as of December 31, 2009". The vast majority of the country, except sparsely populated is shaded in one color. That color represents one to three providers. While this map is useful for demonstrating that almost all consumers live in census tracts where some 3 mbps/768 kbps service is available, it is not helpful for understanding the extent of competition. One and three providers are vastly different competitive landscapes.

Moreover, the report contains no tabular data associated with these maps. Until recently, these reports included tables that set out the percentage of zip codes with one, two, three, four, five, six, seven, eight, nine, or ten or more service providers (and the same data broken down by access technology) with the old 200 kbps definition of broadband. (See, Table 13 in previous report, with data as of June 30, 2009.)

Critics argued that the FCC overstated competition because it only considered whether any one consumer in a zip code had broadband available, and because it defined broadband with the low threshhold of 200 kbps.

The FCC now collects data on many speeds, and by census tract

The report does provide (at Figure 3(a) at page 7) that for 3 mbps/200 kbps, 48% of households are located in census tracts where there are three or more fixed providers, 44% are located where there are two fixed providers, and 7% are located where there is one fixed provider. When wireless access with the same minimum speeds is added in (Figure 3(b) at page 8), then 58% of households are located in census tracts where there are three or more providers, 35% are located where there are two providers, and 6% are located where there is one provider.

For 3 mbps/768 kbps, and fixed only, the figures are 28%, 48% and 21%. For 3 mbps/768 kbps, and all service (fixed and wireless), the figures are 40%, 40% and 17%.

However, the previous reports did not contain data for these higher speeds. And, this latest report does not provide data by number of providers under the 200 kbps definition. Hence, one cannot compare data in the latest report to the data in the previous report for the purpose of understanding whether competition is increasing or decreasing.

The just released report states that "The ZIP Code-based data did not include information about the speeds of the connections that were purchased in particular ZIP Codes. However, the census tract-level information collected on Form 477 since December 2008 does include the speeds of purchased fixed-location connections. In Figure 3(a), we use that information to estimate the percentages of households located in census tracts where zero, one, two, or three or more providers reported residential fixed-location connections of several different speeds at year-end 2009."

The FCC's report and release lack analysis. None of the FCC's Commissioners released a written statement. Yet, one trend that the report may reflect is that most of the growth in the reported time period was in wireless broadband, and that with wireless broadband, what was once referred to as a cable telco duopoly is now being displaced by an environment in which there are two wireline providers that also compete with wireless broadband providers.

That is, service providers are deploying broadband, consumers are rapidly adopting broadband, data speeds are increasing, and competition is increasing.

The Free Press's Derek Turner offers a different analysis. He stated in a release that "The FCC continues its practice of releasing highly flawed and misleading analysis about the broadband marketplace that grossly overstates the level of broadband competition. The shortcomings in this report are inexcusable and suggest that Chairman Genachowski's commitment to run a `data-driven´ agency is thus far just an empty slogan."

He said that "In 2008, the Commission made major changes to its broadband data collection practices. The new data was intended to allow the agency to examine the relationship between market concentration and broadband quality, price and adoption. But instead, the FCC continues to fail to take advantage of this information, choosing to publish misleading analysis in the same mold as the widely criticized reports released under Chairman Michael Powell and Chairman Kevin Martin."

He added that the FCC should "allow outside experts to access FCC data to make better use of the information available."

12/9. Federal Communications Commission (FCC) Commissioner Robert McDowell issued a statement regarding the selection of Rep. Fred Upton (R-MI) to be Chairman of the House Commerce Committee (HCC) in the 112th Congress. "I congratulate my longtime friend, Congressman Fred Upton, on his election as chairman of the House Energy and Commerce Committee. Fred brings his deep understanding of communications policy and strong commitment to free market principles to the chairmanship. I look forward to continuing to work with him, and all of his colleagues, on the important communications matters facing our nation."

12/3. Rep. Joe Barton (R-TX) sent a letter to Federal Communications Commission (FCC) Chairman Julius Genachowski regarding "disparities" between the the comments in an FCC document titled "Strong and Wide Support for Chairman Genachowski's Open Internet Framework", and what the commenters stated in full.

12/10. House Republicans announced new Republican members of the House Commerce Committee (HCC), which has jurisdiction over many information and communications technology related issues.

The new members are as follows:

• Charlie Bass (R-NH), who previously served on the HCC. He was first elected to the House in 1994, lost his seat in 1996, and won it back in November 2010.
• Rep. Brian Bilbray (R-CA), from San Diego, who previously served on the HCC.
• Rep. Bill Cassidy (R-LA).
• Cory Gardner (R-CO), who unseated Rep. Betsy Markey (D-CO) in November.
• Morgan Griffith (R-VA), who unseated Rep. Rick Boucher (D-VA), the current Chairman of the HCC's Subcommittee on Communications, Technology, and the Internet.
• Rep. Brett Guthrie (R-KY).
• Rep. Gregg Harper (R-MS).
• Adam Kinzinger (R-IL), a Tea Party member who unseated Rep. Deborah Halvorson (D-IL). Former Rep. Jerry Weller (R-IL) lost this seat in 2006.
• David McKinley (R-WV), who defeated Mike Oliverio in a close election in November. This is the district currently represented by Rep. Alan Mollohan (D-WV).
• Rep. Cathy Rodgers (R-WA).
• Rep. Pete Olson (R-TX).
• Mike Pompeo (R-KS), who won the seat now held by Rep. Todd Tiahrt (R-KS), who ran unsuccessfully for the U.S. Senate, and lost in the Republican primary. Pompeo is an engineer, former aerospace entrepreneur, and lawyer at Williams & Connolly.
• Rep. Greg Walden (R-OR), who has been a member, but was on leave to serve in the Republican leadership, and on transition to the 112th Congress.

Former Rep. Bass, Rep. Bilbray, and Rep. Walden have all previously served on the HCC, and worked on information and communications technology related issues. Rep. Walden is a former broadcaster.

Several new members represent districts with ties to the oil, gas, refining, and/or coal industries, including Cassidy, Griffith, Guthrie, McKinley, and Olson.

Rep. Fred Upton (R-MI), who will be Chairman of the HCC in the 112th Congress, stated in a release that "We have a great team with diverse backgrounds to deliver what the American people expect and demand -- we will repeal Obamacare, cut spending, eliminate rampant, job-killing regulations, fortify our energy security, and help create jobs.  I look forward to working with all of our members to put the country back to work and back on track."

The House will meet at 10:00 AM in pro forma session only. See, Rep. Hoyer's notice.

The Senate will meet at 2:30 PM. The Senate will resume consideration of HR 4853 [LOC | WW], the vehicle for extending certain expiring tax provisions.

8:30 AM. Day one of a two day partially closed meeting of the Department of Commerce's (DOC) Bureau of Industry and Security's (BIS) Emerging Technology and Research Advisory Committee. See, notice in the Federal Register, November 26, 2010, Vol. 75, No. 227, at Pages 72792-72793. Location: Room 3884, DOC, Hoover Building, 14th Street between Pennsylvania and Constitution Avenues, NW.

9:00 AM. 9:30 AM. The Federal Communications Commission's (FCC) Communications Security, Reliability, and Interoperability Council (CSRIC) will meet. See, original notice in the Federal Register, November 30, 2010, Vol. 75, No. 229, at Pages 74050-74051, and supplemental notice in the Federal Register, December 8, 2010, Vol. 75, No. 235, at Pages 76465-76466. Location: FCC, Commission Meeting Room (Room TW-C305), 445 12th St., SW.

9:30 AM. Rep. Steny Hoyer (D-MD), the House Democratic Leader, will give a speech. Location: National Press Club.

11:00 AM - 2:00 PM. The Department of Commerce's (DOC) National Telecommunications and Information Administration's (NTIA) Spectrum Management Advisory Committee (SMAC) will meet by teleconference. The call in number is 1-888-769-8761; the passcode is 2684385. See, notice in the Federal Register, November 26, 2010, Vol. 75, No. 227, at Page 72792. The agenda includes discussion of a report of the SMAC's Incentives Subcommittee, including spectrum fees, strengthening OMB Circular A11, and the Spectrum Innovation Fund.

Deadline to submit comments to the Department of Justice's (DOJ) Antitrust Division regarding the proposed final judgment in USA v. American Express, et al., D.C. No. CV-10-4496. The DOJ initiated an action against American Express, MasterCard and Visa alleging violation of Section 1 of the Sherman Act, which is codified at 15 U.S.C. § 1, in connection with their alleged anticompetitive conduct at the point of sale. The settlement, which covers only MasterCard and Visa, requires public notice and comment, and approval by the District Court. The DOJ's notice in the Federal Register states that comments are due within 60 days of publication of its notice in the Federal Register. However, it does not fix an actual date. See, Federal Register, October 13, 2010, Vol. 75, No. 197, at Pages 62858-62874. See also, story titled "DOJ and States Bring Antitrust Action Against Credit Card Companies" in TLJ Daily E-Mail Alert No. 2,139, October 5, 2010.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) [25 pages in PDF] regarding commercial radio operator licenses for maritime and aviation radio stations who perform certain functions performed within the commercial radio operators service. The FCC adopted this item on August 31, 2010, and released the text on September 8, 2010. It is FCC 10-154 in WT Docket No. 10-177. See, notice in the Federal Register, October 29, 2010, Vol. 75, No. 209, at Pages 66709-66715.

Deadline for Federal Communications Commission (FCC) Commissioner Michael Copps to respond to Rep. Joe Barton's (R-TX) interrogatories regarding his proposal that broadcasters be subjected to a public value test (PVT). See, story titled "Copps Wants to Impose Public Value Test on Broadcasters" in TLJ Daily E-Mail Alert No. 2,168, December 4, 2010. See also, Rep. Barton's letter and story titled "Barton Questions Copps Regarding Public Value Test" in TLJ Daily E-Mail Alert No. 2,171, December 7, 2010.

The House will meet at 12:30 PM for morning hour, and at 2:00 PM for legislative business. Votes will be postponed until 6:00 PM. The schedule for the week also includes HR 4853 [LOC | WW], the vehicle for extending certain expiring tax provisions. See, Rep. Hoyer's notice.

RESCHEDULED FOR FEBRUARY 8. 8:00 -10:00 AM. Broadband Census News LLC will host a panel discussion titled "Meet The Chinese Embassy IP Attache". The speakers will be Fuli Chen (Intellectual Property Rights Attache for the Chinese Embassy to the US), Steven Adkins (Orrick), Drew Clark, and others. Breakfast will be served. This event is free and open to the public. See, notice and registration page. This event is also sponsored by the National Cable & Telecommunications Association (NCTA) and the Public Knowledge (PK). Location: Clyde's of Gallery Place, 707 7th St., NW.

8:30 AM. Day two of a two day partially closed meeting of the Department of Commerce's (DOC) Bureau of Industry and Security's (BIS) Emerging Technology and Research Advisory Committee. See, notice in the Federal Register, November 26, 2010, Vol. 75, No. 227, at Pages 72792-72793. Location: Room 3884, DOC, Hoover Building, 14th Street between Pennsylvania and Constitution Avenues, NW.

10:30 AM. The Federal Communications Commission (FCC) will host an event titled "Generation Mobile Forum". The speakers will include FCC Chairman Julius Genachowski. The topics to be discussed include cyber bullying. Location: McKinley Technology High School, Auditorium, 151 T St., NE.

12:15 - 1:30 PM. The Federal Communications Bar Association's (FCBA) Mass Media Committee will host a brown bag lunch titled "Views from the Fourth Estate". The speakers will be Amy Schatz (Wall Street Journal), Cecilia Kang (Washington Post), Kim Hart (Politico), and Dennis Wharton (NAB). The FCBA bars reporters from some of its events. Location: Wiley Rein, 1776 K St., NW.

2:30 PM. The Federal Trade Commission's (FTC) Bureau of Economics will host a presentation by Wallace Mullin (George Washington University Department of Economics). He will present a paper [PDF] titled "Diversity, Social Goods Provision, and Performance in the Firm". For more information, contact Loren Smith at lsmith2 at ftc dot gov or Tammy John at tjohn at ftc dot gov. Location: Room 8089, 1800 M St., NW.

5:00 PM. Deadline to submit comments to the U.S. Patent and Trademark Office (USPTO) in response to its notice of proposed rulemaking (NPRM) regarding practice before the Board of Patent Appeals and Interferences (BPAI) in ex parte patent appeals. See, notice in the Federal Register, November 15, 2010, Vol. 75, No. 219, at Pages 69827-69849.

6::00 - 9:15 PM. The DC Bar Association will host an event titled "Intellectual Property Law 2010: Year in Review Series:Copyright and Trademark Update". The speakers will be Brian Banner (H&A Intellectual Property Law) and Terence Ross (Crowell & Moring). The price to attend ranges from $89 to $129. For more information, contact 202-626-3488. See, notice. CLE credits. Location: DC Bar Conference Center, B-1 Level, 1250 H St., NW.

The House will meet at 10:00 AM for legislative business. The schedule includes consideration of S 30 [LOC | WW], the "Truth in Caller ID Act of 2009", and S 3386 [LOC | WW], the "Restore Online Shoppers' Confidence Act". The schedule for the week also includes HR 4853 [LOC | WW], the vehicle for extending certain expiring tax provisions. See, Rep. Hoyer's notice.

9:30 AM. The Common Cause will host a news conference regarding Senate filibuster reform. For more information, contact Mary Boyle at 202-736-5770 or mboyle at commoncause dot org. Location: National Press Club.

RESCHEDULED FOR DECEMBER 21. 10:30 AM. The Federal Communications Commission (FCC) may hold an event titled "open meeting". The agenda may include adoption of a network neutrality order. Location: FCC, Commission Meeting Room, 445 12th St., SW.

6:00 - 8:15 PM. The DC Bar Association will host an event titled "Intellectual Property Law 2010: Year in Review Series: Patent Update". The speakers will be Eric Wright (Stites & Harbison) and Bradley Wright (Banner & Witcoff). The price to attend ranges from $89 to $129. For more information, contact 202-626-3488. See, notice. CLE credits. Location: DC Bar Conference Center, B-1 Level, 1250 H St., NW.

Deadline to submit applications to participate in the Federal Communications Commission's (FCC) Auction 90, regarding certain VHF construction permits. See, FCC September 8, 2010, Public Notice (DA 10-1351 in AU Docket No. 10-147) and notice in the Federal Register, September 23, 2010, Vol. 75, No. 184, at Pages 57947-57952. See also, November 1, 2010, Public Notice (DA 10-2008 in in AU Docket No. 10-147). And see, notice in the Federal Register, December 1, 2010, Vol. 75, No. 230, at Page 74719-74731.

The House will meet at 10:00 AM for legislative business. The schedule for the week also includes HR 4853 [LOC | WW], the vehicle for extending certain expiring tax provisions. See, Rep. Hoyer's notice.

9:30 AM - 5:00 PM. The Federal Communications Commission's (FCC) North American Numbering Council (NANC) will meet. See, notice in the Federal Register, November 30, 2010, Vol. 75, No. 229, at Pages 74051-74052. Location: FCC, Commission Meeting Room (Room TW-C305), 445 12th St., SW.

9:30 AM. The House Judiciary Committee (HJC) will hold a hearing titled "Espionage Act and the Legal and Constitutional Issues Raised by WikiLeaks". See, notice. The HJC will webcast this event. Location: Room 2141, Rayburn Building.

9:30 AM - 4:00 PM. The Department of Justice's (DOJ) Civil Right Division (CRD) will hold a hearing regarding its four notice of proposed rulemakings (NPRMs) that propose to expand the scope of the Americans with Disabilities Act (ADA) to regulate certain communications and information technologies. See, story titled "DOJ/CRD Releases Advance NPRMs Proposing Expansion of ADA" in TLJ Daily E-Mail Alert No. 2,111, July 26, 2010. Location: U.S. Access Board, 1331 F St., NW.

12:00 NOON - 1:30 PM. The Federal Communications Bar Association's (FCBA) will host a lunch. The speaker will be Erwin Chemerinsky. The topic will be "Approaches to First Amendment regulations with the distinctions between traditional mediums disappearing with a lot of discussion of the Fox indecency case". The price to attend ranges from $25 to $40. See, registration form. Registrations and cancellations are due by 12:00 NOON on December 14. Location: Hogan Lovells, 555 13th St., NW.

5:30 - 7:30 PM. The Federal Communications Bar Association's (FCBA) Homeland Security and Emergency Communications Committee will host an event titled "Holiday Happy Hour Mentoring Opportunity for Young Lawyers. The speakers will include James Barnett (Chief of the FCC's Public Safety and Homeland Security Bureau). For more information, contact Jeff Cohen at jeff dot cohen at mail dot house.gov or Mark Brennan at mark dot brennan at hoganlovells dot com. Location: Mandarin Hotel, Empress Lounge, 1330 Maryland Ave., SW.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) [58 pages in PDF] regarding universal service subsidies and certain 3G and next generation wireless services. The FCC adopted and released this item on October 14, 2010. It is FCC 10-182 in WT Docket No. 10-208. See, notice in the Federal Register, November 1, 2010, Vol. 75, No. 210, at Pages 67060-67077. See also, story titled "FCC Adopts NPRM Regarding Universal Service Subsidies for 3G and Next Generation Wireless" in TLJ Daily E-Mail Alert No. 2,142, October 19, 2010.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) regarding expanding the FCC's universal service program to subsidize certain 3G and next generation wireless services. The FCC calls this its "Mobility Fund". The FCC adopted and released this item on October 14, 2010. It is FCC 10-182 in WT Docket No. 10-208. See, notice in the Federal Register, November 12, 2010, Vol. 75, No. 218, Page 69374-69395. See also, story titled "FCC Adopts NPRM Regarding Universal Service Subsidies for 3G and Next Generation Wireless" in TLJ Daily E-Mail Alert No. 2,142, October 19, 2010.

The House may meet at 9:00 AM for legislative business. The schedule for the week also includes HR 4853 [LOC | WW], the vehicle for extending certain expiring tax provisions. See, Rep. Hoyer's notice.

10:00 AM. Deadline for foreign governments to submit comments to the Office of the U.S. Trade Representative (OUSTR) regarding its Special 301 out of cycle review of the Philippines and Thailand. These reviews pertain to identifying countries that deny adequate and effective protection of intellectual property rights (IPR) or deny fair and equitable market access to U.S. persons who rely on intellectual property protection. See, notice in the Federal Register, November 12, 2010, Vol. 75, No. 218, at Pages 69519-69520.

12:00 NOON. Deadline to submit initial comments to the Office of the U.S. Trade Representative (OUSTR) regarding its review of the operation, effectiveness, and implementation of and compliance with various telecommunications agreements, including the World Trade Organization (WTO) General Agreement on Trade in Services. See, notice in the Federal Register, November 18, 2010, Vol. 75, No. 222, at Pages 70770-70771.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Further Notice of Proposed Rulemaking (FNPRM) regarding the appropriate date for the termination of analog operations in the low power television and Class A television services. The FCC adopted and released this item on September 17, 2010. This item is FCC 10-172 in MB Docket No. 03-185. See, notice in the Federal Register, October 18, 2010, Vol. 75, No. 200, at Pages 63766-63773.

Deadline to submit reply 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.

EXTENDED TO JANUARY 31. Deadline to submit initial comments to the Library of Congress's (LOC) Copyright Office (CO) in response to its Notice of Inquiry (NOI) regarding federal coverage of sound recordings fixed before February 15, 1972. See, notice in the Federal Register, November 3, 2010, Vol. 75, No. 212, at Pages 67777-67781. This proceeding is LOC Docket No. 2010-4. See also, story titled "Library of Congress Issues NOI on Extending Copyright Act to Pre 1972 Sound Recordings" in TLJ Daily E-Mail Alert No. 2,150, November 8, 2010. See also, extension notice in the Federal Register, December 1, 2010, Vol. 75, No. 230, at Pages 74749-74750.

12/9. The Securities and Exchange Commission (SEC) filed a civil complaint [PDF] in the U.S. District Court (SDCal) against Brett Cohen and David Myers alleging violation Section 10b5 of the Securities Exchange Act in connection with insider trading. See, SEC release.

The complaint alleges that an unnamed patent agent employed at Sequenom learned material nonpublic information about the development of one of Sequenom's diagnostic products, and separately about Sequenom's proposed acquisition of another company. It further alleges that he tipped another person, who tipped Cohen, who tipped Myers.

Then complaint alleges that Cohen and Myers then traded and profited on the basis of this material nonpublic information.

The complaint states that the patent agent conducted due diligence on the acquired company's intellectual property.

This case is SEC v. Brett Cohen and David Myers, U.S. District Court for the Southern District of California, D.C. No. 3:10-cv-2514-L-WMC.

The U.S. Attorney's Office for the Southern District of California also filed parallel criminal charges against Cohen and Myers on December 9, 2010.

12/10. Microsoft filed a second amended complaint [76 pages in PDF] in the U.S. District Court (WDWash) in Microsoft v. Ralls, a case regarding click laundering fraud affecting the integrity of Microsoft's advertising network.

This complaint adds Vertro, Inc. as a defendant.

Microsoft stated in a release that "Click fraud is a type of Internet fraud in online advertising that occurs when a person, automated script or computer program imitates a legitimate website visitor by clicking on an ad to generate a charge-per-click without having actual interest in the target of the ad’s link. Click laundering is a sophisticated and difficult-to-detect form of click fraud we’ve uncovered in which technical measures are used to mask the true origin of a click and actually make invalid ad clicks appear to originate from legitimate sources.  Click laundering attempts to avoid fraud detection systems that have been put in place by the ad platform -- in this case, Microsoft adCenter -- to protect online advertisers from paying for fraudulent clicks."

This case is Microsoft Corp. v. Eric C. Ralls, Redorbit, Inc., Vertro, Inc., et al., U.S. District Court for the Western District of Washingotn, D.C. No. 2:10-cv-00818-JCC.

12/9. President Obama announced his intent to nominate Stephanie O'Sullivan to be Principal Deputy Director of National Intelligence, Directorate of National Intelligence. The White House news office stated in a release that she is currently "the Associate Deputy Director of the Central Intelligence Agency. Prior to this role, Ms. O’Sullivan led the Directorate of Science and Technology (DS&T), the part of the Agency responsible for developing and deploying innovative technology in support of intelligence collection and analysis."

12/8. The Senate Judiciary Committee (SJC) held an executive business meeting at which it once again held over consideration of the nomination of Robert Chatigny to be a Judge of the U.S. Court of Appeals (2ndCir). He is a Judge of the U.S. District Court for the District of Connecticut. He was appointed in 1994 by former President Clinton. Sen. Jeff Sessions (R-AL), the ranking Republican on the Senate Judiciary Committee (SJC), and others oppose the nomination because of their understanding that he overreaches and abuses his judicial powers. Their primary concern is his obstruction of implementation of the state of Connecticut's death penalty.

12/8. The Senate Judiciary Committee (SJC) held an executive business meeting at which it approved four U.S. District Court nominations: Max Cogburn (USDC/WDNC), Marco Hernandez (USDC/DOre), Steve Jones (USDC/NDGa), and Michael Simon (USDC/DOre). All were approved by voice votes except Simon. That vote was 16-3.

12/10. The Office of the U.S. Trade Representative (OUSTR) issued a release regarding the fourth round of Trans-Pacific Partnership (TPP) negotiations, held in Auckland, New Zealand, on December 10, 2010. The participating countries are Australia, Brunei Darussalam, Chile, Malaysia, New Zealand, Peru, Singapore, and Vietnam. The OUSTR stated that "the TPP countries made solid progress". The fifth round will be held in Santiago, Chile in February, 2011.

12/10. The Securities and Exchange Commission (SEC) filed a complaint [68 pages in PDF] in the U.S. District Court (SDNY) against Vitesse Semiconductor Corporation and others alleging violation of Section 10b5 of the Securities Exchange Act, and other federal securities laws, in connection with their alleged revenue inflation and stock option back dating. This case is SEC v. Vitesse Semiconductor Corporation, Louis R. Tomasetta, Eugene F. Hovanec, Yatin D. Mody, and Nicole R. Kaplan, D.C. No. 10-civ-9239-JSR, U.S. District Court for the Southern District of New York. See also, SEC release.

12/8. The National Institute of Standards and Technology (NIST) published a notice in the Federal Register in which it requested comments on "the effectiveness of Federal agencies' participation in the development and implementation of standards and conformity assessment activities and programs." The deadline to submit comments is 11:59 PM on February 7, 2011. See, Federal Register, December 8, 2010, Vol. 75, No. 235, at Pages 76397-76399.

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