7/28. Rep. Fred Upton (R-MI), Rep. Greg Walden (R-OR), and Rep. Cliff Stearns (R-FL) sent a letter [PDF] to the Federal Communications Commission (FCC) asking for records related to its adoption of rules in late December of 2010 regulating broadband internet access service (BIAS) providers, and other network neutrality rules.

The letter states that "Agency decisions should be based on law and policy." However, the letter cites allegations that the "FCC's network neutrality proceeding was designed to fulfill a presidential campaign slogan, when it should have been based on an analysis of statutory authority, an economic analysis of the Internet service market, and an examination of the record. If true, it seems the FCC failed to develop an independent conclusion derived from a balanced fact-based record, which is incompatible with proper rule-making."

Hence, the letter announces an investigation of the FCC's decision making process in adopting its BIAS rules, and requests the production of relevant documents by August 10, 2011.

For example, it asks the FCC to produce "all communications (including, but not limited to, emails) from the period June 25, 2009, to December 21, 2010. between or among any FCC Parties relating to the Obama Administration position regarding (a) potential Commission action in the Network Neutrality Dockets or (b) Commission adoption or enforcement of Network Neutrality Rules." (Parentheses in original.)

It also asks for communications between the FCC and the Executive Office of the President, the Executive Office of the Vice President, the Office of Science and Technology Policy, and the Council of Economic Advisors. It also asks for certain FCC records regarding the proposed reclassification of BIAS as a Title II service. It also asks for certain records pertaining to the Comcast NBCU merger review.

See, FCC's Report and Order (R&O) adopted on December 21, 2010, and released on December 23, 2010. This R&O is FCC 10-201 in GN Docket No. 09-191 and WC Docket No. 07-52. See also, stories in TLJ Daily E-Mail Alert No. 2,186, December 22, 2010, and TLJ Daily E-Mail Alert No. 2,188, December 24, 2010.

The letter defines the term "Network Neutrality Rules" to include not only the December 21, 2010 R&O, but also the FCC's 2005 policy statement, and the FCC's Comcast order.

The FCC adopted its "Policy Statement" on August 5, 2005, and released it on September 23, 2005. See, stories titled "FCC Adopts a Policy Statement Regarding Network Neutrality" in TLJ Daily E-Mail Alert No. 1,190, August 8, 2005, and "FCC Releases Policy Statement Regarding Internet Regulation" in TLJ Daily E-Mail Alert No. 1,221, September 26, 2007.

On August 1, 2008, the FCC adopted its Comcast order asserting adjudicatory authority to enforce its 2005 policy statement, and asserting authority to regulate the network management practices of broadband service providers. This is the order which the Court of Appeals has vacated. See, story titled "FCC Asserts Authority to Regulate Network Management Practices" in TLJ Daily E-Mail Alert No. 1,805, August 4, 2008. The FCC released the text of this order on August 20, 2008. It is FCC 08-183 in Docket No. 07-52. The Court of Appeals later overturned that order.

Neither Rep. Henry Waxman (D-CA), nor Rep. Anna Eshoo (D-CA), who urged the FCC to adopt rules regulating BIAS providers, joined in this letter.

Some interest groups that have advocated FCC regulation of BIAS providers criticized this letter. The Public Knowledge (PK) wrote in a release that "This examination should not be a partisan witch hunt." The Free Press (FP) wrote in a release that this is a "partisan fishing expedition", and that it is "wasting taxpayer resources".

7/27. Representatives of two U.S. antitrust regulators and the People's Republic of China (PRC) antitrust regulator signed a Memorandum of Understanding (MOU) in Beijing regarding cooperation on competition law matters.

The parties to the agreement are the U.S. Federal Trade Commission (FTC), the U.S. Department of Justice's (DOJ) Antitrust Division and the People's Republic of China's (PRC) National Development and Reform Commission, Ministry of Commerce, and State Administration for Industry and Commerce.

The U.S. Federal Communications Commission (FCC), which also conducts antitrust mergers reviews, as with the proposed AT&T acquisition of T-Mobile USA, is not a party to this MOU.

The U.S. signers of this MOU were Jonathan Leibowitz, Chairman of the FTC, and Christine Varney, who is in her final days as Assistant Attorney General in charge of the DOJ's Antitrust Division. The PRC signers were Gao Hucheng, China International Trade Representative and Vice Minister of the Ministry of Commerce (MOFCOM), Peng Sen, Vice Chairman of the National Development and Reform Commission (NDRC), and Zhong Youping, Vice Minister of the State Administration for Industry and Commerce (SAIC).

Varney stated in a release that the relationship between the regulatory agencies "has steadily strengthened", and that this MOU "is a reflection of that relationship, and, by establishing a framework for enhanced cooperation among our agencies, the MOU also allows us to move to the next chapter in our collaboration on competition law and policy matters". See also, speech by Varney.

Leibowitz (at right) stated in this release that "In the three years since China’s antimonopoly law came into effect, its enforcement agencies have risen in prominence and have quickly developed many of the important analytical techniques used by leading antitrust agencies around the world ... We look forward to continuing to share our experiences with China’s enforcement agencies as they confront many of the same challenges in implementing their laws that other agencies have faced, and we are confident that China will continue to build its agencies and enforcement mechanisms in positive ways."

The MOU recites that its objectives include "Recognizing the benefit of technical cooperation between the U.S. antitrust agencies and the PRC antimonopoly agencies in order to enhance an environment in which the sound and effective enforcement of competition law and policy supports the efficient operation of markets and economic welfare of the citizens of their respective nations"

This MOU provides that there will be "joint dialogue among all parties to this Memorandum on competition policy at the senior official level" and "communication and cooperation on competition law enforcement and policy between individual U.S. antitrust agencies and PRC antimonopoly agencies"

It states that the "joint dialogue" will involve periodic meeting, alternating in location between the two countries, "in principle once a year". Moreover, the parties "establish ad hoc working groups under the joint dialogue to facilitate discussions on particular issues regarding competition policy and laws".

It also states that "when a U.S. antitrust and a PRC antimonopoly agency are investigating related matters, it may be in those agencies’ common interest to cooperate in appropriate cases, consistent with those agencies’ enforcement interests, legal constraints, and available resources."

The MOU states that regulators will work together in the following areas: "(a) keeping each other informed of significant competition policy and enforcement developments in their respective jurisdictions; (b) enhancing each agency’s capabilities with appropriate activities related to competition policy and law such as training programs, workshops, study missions and internships; (c) exchanging experiences on competition law enforcement, when appropriate; (d) seeking information or advice from one another regarding matters of competition law enforcement and policy; (e) providing comments on proposed changes to competition laws, regulations, rules and guidelines; (f) exchanging views with respect to multilateral competition law and policy; and (g) exchanging experiences in raising companies’, other government agencies’ and the public’s awareness of competition policy and law."

7/27. A coalition of 28 large U.S. universities, using the name "Gig.U", announced that they are "forming a coalition of leading research universities, in partnership with our local communities, intent on accelerating the deployment of ultra high-speed networks to our communities". See, statement.

The coalition statement adds that "Within the next 90 days we will issue a Request for Information to current and potential service providers regarding new approaches to bringing such networks to our communities. We expect to use the information collected to issue tailored Request for Proposals to enter into agreements to deploy such networks".

Federal Communications Commission (FCC) Commissioner Michael Copps stated in a release that "I applaud today's announcement of GIG-U: The University Community Next Generation Innovation Project. This concept demonstrates the power of creative thinking and the potential for meaningful public-private partnerships to address the key infrastructure challenge of our time. Broadband holds enormous potential to expand educational and research opportunities both on and off the campus. I look forward to watching the seeds of this endeavor take root."

FCC Commissioner Mignon Clyburn stated in a release that "I am pleased that the University Community Next Generation Innovation Project will be working on the broadband America will need in the future. With the leadership of Blair Levin and Elise Kohn, both of whom I greatly respect for their dedication and creative thinking on broadband issues, I know this Project announced today will do great things for our nation."

Walter McCormick, head of the US Telecom, stated in a release that "Our companies value our partnerships with universities and anchor institutions, and welcome new ideas like Gig.U to create test beds for the development of next generation applications that will drive increasing use of broadband connections and emphasize the value of broadband investment to our economy."

Ed Black, head of the Computer and Communications Industry Association (CCIA), stated in a release that "This privately funded project is a perfect example of the type of investment our nation needs to get us back on a path of prosperity.  CCIA commends the GigU project and its ambitious goals."

7/27. The Federal Communications Commission's (FCC) Media Bureau (MB) adopted and released a Memorandum Opinion and Order (MOO) [6 pages in PDF] that allows the XM Sirius three year price cap to expire.

XM and Sirius announced their merger plans on February 19, 2007. See, story titled "XM and Sirius Announce Plans to Merge" in TLJ Daily E-Mail Alert No. 1,540, February 20, 2007. They formally submitted the application to the FCC on March 20, 2007.

The FCC did not approve the merger until July 25, 2008. See, story titled "FCC Approves XM Sirius Merger" in TLJ Daily E-Mail Alert No. 1,800, July 25, 2008.

The FCC imposed a three year price cap on certain subscription packages, which, in the FCC's terminology, was a "voluntary commitment" of the parties. That mandate expired on July 28, 2011.

This MOO states that the FCC has received "No specific proposals to extend the price cap", and that "we find no sufficient basis on this record to extend the price cap condition beyond the three-year time period established in the Merger Order".

This MOO is DA 11-1273 in MB Docket No. 07-57.

7/28. Thomas Power, the Chief of Staff of the Department of Commerce's (DOC) National Telecommunications and Information Administration (NTIA), gave a speech at the 12th Annual International Symposium on Advanced Radio Technologies in Boulder, Colorado, regarding repurposing spectrum now used for various radar systems.

He said that "government must use its existing spectrum more efficiently, we must free up more spectrum for new uses, and we must provide the private sector with the incentives to transfer spectrum from current uses to higher-value ones."

"Earlier this year, we selected the next spectrum band to be evaluated for potential repurposing to commercial use. The band we selected with input from other federal agencies, 1755-1850 MHz, is a priority for review based on a variety of factors, including industry interest and the band's potential for commercial use within 10 years. We plan to complete our review of this band by the end of September."

Power continued that "after we complete our review of the 1755-1850 MHz band, where do we look next?" He said, "Our search quickly draws us toward radars and radar spectrum." He then reviewed the various radar systems.

7/26. The U.S. Court of Appeals (2ndCir) issued its opinion [PDF] in TradeComet v. Google, affirming the judgment of the U.S. District Court (SDNY).

TradeComet operates a search engine web site named "SourceTool" that serves businesses seeking to buy or sell products and services to other businesses.

Google's provides web search capability. It also provides an advertising platform named "AdWords". This enables advertisers to have their ads appear when internet users perform searches containing specified search terms using Google's web search.

TradeComet participated in Google's AdWords program to drive traffic to its SourceTool web site.

An agreement between Google and its AdWords customers includes a forum selection clause that requires suit to be brought in federal or state court in Santa Clara County, California.

TradeComet.com filed a complaint in the District Court in New York against Google alleging violation of the Sherman Act, 15 U.S.C. §§ 1 and 2, in connection with the prices Google charged TradeComet.

Google filed a motion to dismiss pursuant to Rules 12(b)(1) and 12(b)(3) of the Federal Rules of Civil Procedure for lack of subject matter jurisdiction and improper venue. The District Court granted the motion.

TradeComet argued that a 12(b) dismissal was inappropriate, and that Google should have pursued a motion to transfer pursuant to 28 U.S.C. § 1404(a). The Court of Appeals affirmed the judgment of the District Court.

It wrote that "a district court is not required to enforce a forum selection clause only by transferring a case pursuant to § 1404(a) when that clause specifies that suit may be brought in an alternative federal forum. Rather, in such circumstances, a defendant may seek to enforce a forum selection clause under Rule 12(b)."

This opinion does not address any antitrust issues.

This case is TradeComet.com LLC v. Google, Inc., U.S. Court of Appeals for the 2nd Circuit, App. Ct. No. 10-911-cv, an appeal from the U.S. District Court for the Southern District of New York. Judge Debra Ann Livingston wrote the opinion of the Court of Appeals, in which Judges Winter and Sack joined.

7/28. The House Judiciary Committee (HJC) completed its mark up of HR 1981 [LOC | WW], the data retention bill. On July 28, the HJC approved two minor amendments, and rejected numerous significant amendments. The vote on final passage was 19-10. There will be further TLJ coverage in a weekend issue.

The House will meet at 9:00 AM for legislative business. See, Rep. Cantor's schedule. It will consider the Budget Control Act of 2011.

The Senate will meet at 9:30 AM.

8:30 AM. The Department of Commerce's (DOC) Bureau of Economic Analysis (BEA) is scheduled to release its advance estimate of the U.S. Gross Domestic Product, 2nd Quarter 2011. See, BEA schedule.

POSTPONED TO AUGUST 1. 9:30 AM. Day three of a three day meeting of the House Judiciary Committee (HJC) to mark up bills. The fourth item on the agenda is HR 83 [LOC | WW], the "Bullying Prevention and Intervention Act of 2011". See, story titled "House Judiciary Committee to Mark Up Data Retention and Bullying Bills" in TLJ Daily E-Mail Alert No. 2,267, July 23, 2011. Location: Room 2141, Rayburn Building.

12:15 - 1:15 PM. The Federal Communications Bar Association's (FCBA) Young Lawyers Committee will host a brown bag lunch titled "A Reduced History of Telecom Regulation: From the Railroads and the Titanic to iPad Snooki". The speaker will be Dan Brenner (Hogan Lovells). For more information, contact Evan Morris at Evan dot Morris at harris dot com, Mark Brennan at Mark dot Brennan at hoganlovells dot com, or Brendan Carr at BCarr at wileyrein dot com. Location: Wiley Rein, 1776 K St., NW.

Deadline to submit comments to the National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) regarding its draft SP 800-63 Revision 1 [110 pages in PDF] titled "Electronic Authentication Guideline".

Rep. Cantor's schedule for the House states that "Members are advised a weekend session is possible".

Deadline to submit initial comments to the Federal Communications Commission (FCC) regarding the report submitted to the FCC on June 30, 2011, by the technical working group co-chaired by LightSquared and the U.S. Global Positioning System Industry Council (USGIC). See, FCC International Bureau's (IB) order dated June 30, 2011. It is DA 11-1133 in DA 11-1133. See also report, part 1, part 2, part 3, part 4, part 5, part 6, and part 7.

10:00 AM. Day three of a three day meeting of the House Judiciary Committee (HJC) to mark up bills. The remaining agenda items include HR 83 [LOC | WW], the "Bullying Prevention and Intervention Act of 2011". See, manager's amendment [5 pages in PDF], and story titled "House Judiciary Committee to Mark Up Data Retention and Bullying Bills" in TLJ Daily E-Mail Alert No. 2,267, July 23, 2011. See, notice. The HJC will webcast this event. Location: Room 2141, Rayburn Building.

Deadline to submit comments to the National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) regarding its draft SP 800-90 A [135 pages in PDF] titled "Recommendation for Random Number Generation Using Deterministic Random Bit Generators".

Deadline to submit comments to the National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) regarding its draft NIST IR-7802 [25 pages in PDF] titled "Trust Model for Security Automation Data 1.0".

Deadline to submit comments to the National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) regarding its draft SP 800-126 Rev. 2 [51 pages in PDF] titled "The Technical Specification for the Security Content Automation Protocol (SCAP): SCAP Version 1.2".

Deadline for the federal government to raise the limit on federal borrowing.

10:00 AM. The House Committee on Foreign Affairs will hold a hearing titled "Why Taiwan Matters". The witnesses will be Kurt Campbell (Assistant Secretary of State for East Asian and Pacific Affairs) and Michael Schiffer (Deputy Assistant Secretary of Defense for East Asia). See, notice. Location: Room 2172, Rayburn Building.

2:30 PM. The Senate Intelligence Committee (SIC) will hold a closed hearing. See, notice. Location: Room 219, Hart Building.

9:00 AM. The Department of Commerce's (DOC) Bureau of Industry and Security's (BIS) Materials Processing Equipment Technical Advisory Committee (MPETAC) will hold a partially closed meeting. See, notice in the Federal Register Vol. 76, No. 138, Tuesday, July 19, 2011, at Pages 42678-42679. Location: DOC, Hoover Building, Room 3884,14th Street between Pennsylvania and Constitution Aves., NW.

10:00 AM. The Senate Judiciary Committee (SJC) will hold a hearing titled "Cybercrime: Updating the Computer Fraud and Abuse Act to Protect Cyberspace and Combat Emerging Threats". The witnesses will be James Baker (DOJ's Associate Deputy Attorney General) and Pablo Martinez (U.S. Secret Service). See, notice. The SJC will webcast this event. Location Room 226, Dirksen Building.

10:00 AM - 12:00 NOON. The House Science Committee (HSC) will hold a hearing titled "Impacts of the LightSquared Network on Federal Science Activities". See, notice. Location: Room 2318, Rayburn Building.

10:00 AM - 12:00 NOON. The House Intelligence Committee (HIC) will hold a closed hearing titled "Ongoing Intelligence Activities". See, notice. Location: Room HVC-304, Capitol Building.

10:00 AM. The Senate Judiciary Committee (SJC) will hold an executive business meeting. The agenda again includes consideration of Steve Six (to be a Judge of the U.S. Court of Appeals for the 10th Circuit) and Morgan Christen (U.S. Court of Appeals for the 9th Circuit), and four District Court nominees: Yvonne Rogers (USDC/NDCal), Richard Andrews (USDC/DDel), Scott Skavdahl (USDC/DWyo), and Sharon Gleason (USDC/DAk). The SJC will webcast this event. See, notice. Location: Room 226, Dirksen Building.

2:30 PM. The Senate Intelligence Committee (SIC) will hold a closed hearing. See, notice. Location: Room 219, Hart Building.

EXTENDED FROM JULY 5. Extended deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Notice of Inquiry (NOI) [46 pages in PDF] regarding how its rules and policies could be modified to provide greater economic, market entry, communication adoption opportunities, and incentives for Native Nations. This notice is FCC 11-30 in CG Docket No. 11-41. The FCC adopted it on March 3, 2011, and released the text on March 4, 2011. See, notice in the Federal Register, April 5, 2011, Vol. 76, No. 65, at Pages 18759-18761. See also, extension notice (DA 11-873).

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response its 3rd Further Notice of Proposed Rulemaking (NPRM) [110 pages in PDF] regarding extensive revisions to its Part 11 rules governing the Emergency Alert System (EAS). The FCC adopted this NPRM on May 25, 2011, and released the text on May 26, 2011. It is FCC 11-82 in EB Docket No. 04-296. See, notice in the Federal Register, Vol. 76, No. 118, Monday, June 20, 2011, at Pages 35810-35831.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Public Notice regarding whether certain docketed FCC proceedings should be terminated as dormant. See, June 3, 2011, Public Notice (DA 11-992 in CG Docket No. 11-99), and notice in the Federal Register, Vol. 76, No. 118, Monday, June 20, 2011, at Pages 35892-35893.

EXTENDED FROM JULY 8. Deadline to submit comments to the Federal Trade Commission (FTC) in connection with June 21 event titled "Patent Standards Workshop". See, notice in the Federal Register, Vol. 76, No. 93, Friday, May 13, 2011, at Pages 28036-28038, and FTC release of May 9, 2011. See also, story titled "FTC to Hold Workshop on Standard Setting and Patents" in TLJ Daily E-Mail Alert No. 2,242, May 16, 2011. See, FTC's June 29, 2011, extension notice.

7/28. The Senate Judiciary Committee (SJC) announced that its Subcommittee on Antitrust, Competition Policy and Consumer Rights will hold a hearing titled "The Power of Google: Serving Consumers or Threatening Competition" on September 21, 2011. Sen. Herb Kohl (D-WI) will preside. See, notice.

7/28. The Department of Transportation's (DOT) Research and Innovative Technology Administration (RITA) published a notice in the Federal Register that requests comments regarding Intelligent Transportation Systems (ITS) learning, including "connected vehicle technology that will feature a connected transportation environment among vehicles, the infrastructure, and passengers' portable devices". The deadline to submit comments is August 29, 2011. See, Federal Register, Vol. 76, No. 145, Thursday, July 28, 2011, at Pages 45334-45335.

7/28. The U.S. Court of Appeals (7thCir) issued its opinion in Georgia Pacific v. Kimberly Clark, affirming the judgment of the District Court, in a case "in the rarefied air inhabited by top-rate intellectual property lawyers who specialize in presenting and defending claims of unfair competition and trademark infringement". Georgia-Pacific (GP) "unrolled this suit" in the District Court alleging that Kimberly-Clark's (KC) brands of toilet paper infringed its trademark design. The District Court granted summary judgment to KC. The Court of Appeals affirmed. At bottom, both courts concluded that GP's quilted diamond design is functional and therefore cannot be trademarked. This case is Georgia Pacific Consumer Products LP v. Kimberly-Clark Corporation, et al., U.S. Court of Appeals for the 7th Circuit, App. Ct. No. 10-3519, an appeal from the U.S. District Court for the Northern District of Illinois, Eastern Division, D.C. No. 1:09-cv-02263, Judge Virginia Kendall presiding. Judge Evans wrote the opinion of the Court of Appeals, in which Judges Kanne and Sykes joined.

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