8/29. The Copyright Office (CO) released its report [168 pages in PDF] on possible mechanisms, methods, and recommendations for phasing out the statutory licensing requirements set forth in 17 U.S.C. §§ 111, 119, and 122.

The report recommends that the Congress set a date for the phase out and eventual repeal of the distant signal licenses, but put off to "a later time" repeal of the local signal licenses.

This report was required by Section 302 of  S 3333 [LOC | WW], the "Satellite Television Extension and Localism Act of 2010", or "STELA", which is now Public Law No. 111-175.

The main provisions of the STELA extended the term of the § 119 satellite distant signal statutory license for five years, and modified the § 111 cable statutory license and the § 122 satellite local into local statutory license.

The STELA also addressed the phantom signal problem in the cable license, and provided incentives for satellite television service providers to provide local broadcast programming in all 210 markets in the US. See, story titled "Obama Signs Satellite TV Bill" in TLJ Daily E-Mail Alert No. 2,089, May 28, 2010.

The CO issued a Notice of Inquiry (NOI) on March 3, 2011. See, story titled "Copyright Office Issues STELA Notice of Inquiry" in TLJ Daily E-Mail Alert No. 2,203, March 11, 2011. See also, CO web page with hyperlinks to the 17 initial comments received by the CO, and web page with hyperlinks to the 9 reply comments. The CO also held a hearing on June 10.

Section 302 requires the CO to submit to the Congress within 18 months of enactment a report containing "proposed mechanisms, methods, and recommendations on how to implement a phase-out of the statutory licensing requirements set forth in sections 111, 119, and 122 of title 17, United States Code, by making such sections inapplicable to the secondary transmission of a performance or display of a work embodied in a primary transmission of a broadcast station that is authorized to license the same secondary transmission directly with respect to all of the performances and displays embodied in such primary transmission".

The statute also requires that the report include "any recommendations for alternative means to implement a timely and effective phase-out of the statutory licensing requirements" of these sections, and "any recommendations for legislative or administrative actions as may be appropriate to achieve such a phase-out".

The just released report states that "statutory licensing ... is an artificial construct created in an earlier era. Copyright owners should be permitted to develop marketplace licensing options to replace the provisions of Sections 111, 119 and 122, working with broadcasters, cable operators and satellite carriers, and other licensees, taking into account consumer demands."

It finds that "Business models based on sublicensing, collective licensing and/or direct licensing are largely undeveloped in the broadcast retransmission context, but are feasible alternatives that could emerge in a variety of innovative ways."

It also finds that "The concepts of sublicensing, direct licensing, and collective licensing do not represent the entire universe of possibilities, are not mutually exclusive, and will not remain static. Business models may emerge that incorporate these concepts in part or in combination, and technology will continuously inform the practices of both licensors and licensees."

It recommends that the Congress "announce a date-specific trigger for the phase-out and eventual repeal of the distant-signal licenses, but should leave repeal of the local-signal licenses to a later time. This approach would provide stakeholders with an opportunity to test new business models with the least likely disruption to consumers, and give Congress the advantage of drawing on that experience when considering when and how to address the local-signal licenses."

The report continues that "Before determining the date-specific trigger and transition period for the phase-out of the distant-signal licenses, Congress should evaluate the concerns of stakeholders who operate with limited resources in the broadcast programming distribution chain and evaluate to determine whether special consideration is advisable."

Also, "In selecting the sunset date for the distant-signal licenses, Congress should build in a sufficient transition period, during which cable operators and satellite carriers should be instructed to negotiate with broadcast stations for carriage of the programming on the broadcast signal in cases where said broadcast stations have obtained the rights necessary to retransmit all of the content carried on its signal (provided, however, the broadcast station forgoes its mandatory carriage rights under the must-carry and carry-one carry-all provisions of the Communications Act)." (Parentheses in original.)

Finally, the report states that "Although the statutory licenses at issue are codified in copyright law, they do not operate in a vacuum. Instead, they interact with equally complex provisions of communications law and related regulations. The Copyright Office recommends that Congress consider and, as appropriate, address these provisions in tandem with the recommendations described in this report."

8/29. The Public Knowledge (PK), Center for Democracy and Technology (CDT), Electronic Frontier Foundation (EFF), Media Access Project (MAP) and other interest groups filed a petition [20 pages in PDF] with the Federal Communications Commission (FCC) regarding the Bay Area Rapid Transit's (BART) interruption of access to CMRS networks on August 11, 2011.

See also, story titled "BART Cuts Off Cell Phone Service" in TLJ Daily E-Mail Alert No. 2,289, August 14, 2011.

These groups ask the FCC to issue a declaratory ruling that the shutdown by the BART violated the federal Communications Act.

However, the groups also broadly request a declaratory ruling that "local law enforcement has no authority to suspend or deny CMRS, or to order CMRS providers to suspend or deny service, absent a properly obtained order from the Commission, a state commission of appropriate jurisdiction, or a court of law with appropriate jurisdiction".

The petition states that "Because any impairment of CMRS impacts both critical issues of public safety and important principles of free expression, the Commission must act swiftly to clarify that local authorities may not turn off wireless networks before other local jurisdictions seek to replicate the actions of BART."

The petition offers this analysis. "While BART’s source of authority for its actions is currently unclear, it can only shut off service pursuant to one of three theories: as a network operator or agent of a network operator, as an agent of state or local government exercising police power, or as a private actor. In each case, however, such a shutoff conflicts with the law. As a network operator, it would be subject to Section 214(a), which prohibits discontinuing or impairing service without prior authorization from the Commission. As a government agent exercising police power, BART would be in conflict with existing case law, which prohibits disruption of telecommunications networks on mere suspicion of illegal activity and grants the FCC authority to exercise its preemptive power consistent with the law. As a private party, BART would be in violation of Section 333, which prohibits any person from willfully interfering with any station licensed or otherwise authorized under the Act."

The above cited 47 U.S.C. § 214(a)(3) provides in part that "No carrier shall discontinue, reduce, or impair service to a community, or part of a community, unless and until there shall first have been obtained from the Commission a certificate that neither the present nor future public convenience and necessity will be adversely affected thereby; except that the Commission may, upon appropriate request being made, authorize temporary or emergency discontinuance, reduction, or impairment of service, or partial discontinuance, reduction, or impairment of service, without regard to the provisions of this section".

The above referenced "case law" on police powers includes a California state case, People v. Brophy, 120 P.2d 946, decided by an intermediate appellate court almost seventy years ago. It also includes Pike v. Southern Bell, 81 So. 2d 254, a 1955 Alabama Supreme Court case.

The above cited 47 U.S.C. § 333 provides in full that "No person shall willfully or maliciously interfere with or cause interference to any radio communications of any station licensed or authorized by or under this chapter or operated by the United States Government."

8/26. Ben Bernanke, Chairman of the Federal Reserve Board, gave a speech in Jackson Hole, Wyoming, titled "The Near- and Longer-Term Prospects for the U.S. Economy".

He stated that "although important problems certainly exist, the growth fundamentals of the United States do not appear to have been permanently altered by the shocks of the past four years. It may take some time, but we can reasonably expect to see a return to growth rates and employment levels consistent with those underlying fundamentals."

Bernanke (at left) said that the US "remains a technological leader, with many of the world's leading research universities and the highest spending on research and development of any nation."

He predicted that "Businesses will continue to invest in new capital, adopt new technologies, and build on the productivity gains of the past several years."

He also recommended that "policymakers must work to promote macroeconomic and financial stability; adopt effective tax, trade, and regulatory policies; foster the development of a skilled workforce; encourage productive investment, both private and public; and provide appropriate support for research and development and for the adoption of new technologies."

8/29. The U.S. Patent and Trademark Office (USPTO) published a notice in the Federal Register (FR) requesting comments regarding "establishing a one-year retention period that begins on September 1, 2011, for papers scanned into IFW or SCORE prior to September 1, 2011; or a paper's submission date, for papers scanned into IFW or SCORE on or after September 1, 2011."

This notice adds that "After the expiration of the one-year retention period ... the USPTO would dispose of the paper unless, within sufficient time prior to disposal of the paper, the relevant patent applicant, patent owner, or reexamination party files a bona fide request to correct the electronic record of the paper in IFW or SCORE, and the request remains outstanding at the time disposal of the paper would have otherwise occurred."

The deadline to submit comments is October 28, 2011. See, FR, Vol. 76, No. 167, Monday, August 29, 2011, at Pages 53667-53670.

The House will meet in pro forma session at 10:00 AM.

The Senate will meet in pro forma session at 10:00 AM.

2:00 - 2:15 PM. The American Bar Association (ABA) will host a Training Tuesday webcast event titled "From Signature to E-Signature". See, notice. Free.

3:00 PM. Extended deadline to submit comments to the National Institute of Standards and Technology (NIST) regarding the governance structure for its National Strategy for Trusted Identities in Cyberspace (NSTIC). See, notice in the Federal Register, Vol. 76, No. 158, Tuesday, August 16, 2011, at Page 50719.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Notice of Inquiry (NOI) [27 pages in PDF] regarding rights of way policies and wireless facilities siting requirements. The FCC adopted and released this item on April 7, 2011. It is FCC 11-51 in WC Docket No. 11-59. See, notice in the Federal Register, Vol. 76, No. 95, Tuesday, May 17, 2011, at Pages 28397-28403.

Extended deadline for Bloomberg to file with the Federal Communications Commission (FCC) its reply to Comcast's answer to its complaint regarding channel placement. See, story titled "Sen. Franken Writes FCC Regarding Bloomberg's Complaint Against Comcast" in TLJ Daily E-Mail Alert No. 2,280, August 5, 2011.

The House will not meet.  It is in recess until 2:00 PM on September 7. However, it will hold pro forma sessions twice per week until then.

The Senate will not meet. It is in recess until 2:00 PM on September 6. However, it will hold pro forma sessions twice per week until then.

Deadline to submit comments to the National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) regarding its draft SP 800-67 Rev. 1 [35 pages in PDF] titled "Recommendation for the Triple Data Encryption Algorithm (TDEA) Block Cipher".

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Public Notice regarding certain universal service and intercarrier compensation reform issues. The FCC released this item on August 3, 2011. It is DA 11-1348 in WC Docket Nos. 10-90, 07-135, 05-337, and 03-109, CC Docket Nos. 01-92 and 96-45, and GN Docket No. 09-51. See, notice in the Federal Register, Vol. 76, No. 154, Wednesday, August 10, 2011, at Pages 49401-49408.

10:00 AM - 2:30 PM. The American Constitution Society for Law and Policy will host an event titled "Legal Policy Shifts Since 9/11". At 10:00 - 11:30 AM there will be a panel titled "Surveillance". The speakers will be Kenneth Wainstein (O’Melveny & Myers, and former head of the DOJ's National Security Division), Jeffrey Rosen (George Washington University law school), Michael German (ACLU), Deepa Iyer (South Asian Americans Leading Together), Gregory Nojeim (Center for Democracy and Technology), and Suzanne Spaulding (Bingham Consulting Group). William Lietzau (Deputy Assistant Secretary of Defense for Rule of Law and Detainee Policy) will be the lunch speaker. At 1:00 - 2:30 PM there will be a second panel. The speakers will be Charlie Savage (New York Times), David Cole (Georgetown University Law Center), Richard Klingler (Sidley Austin), Wendy Patten (Open Society Foundations), Deborah Pearlstein (Princeton University), Geoffrey Stone (University of Chicago Law School). Location: National Press Club, 13th floor, 529 14th St., NW.

12:00 NOON - 1:00 PM. Shannon Rossmiller, an independent online terrorism investigator, will give a speech. See, notice. Location: Heritage Foundation, 214 Massachusetts Ave., NE.

Deadline to submit Form 477 to the Federal Communications Commission (FCC).

The House will meet in pro forma session at 10:00 AM.

The Senate will meet in pro forma session at 10:00 AM.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) [36 pages in PDF] regarding removing the International Settlements Policy (ISP) from all U.S. international routes except Cuba. The FCC adopted this NPRM on May 12, 2011, and released the text on May 13, 2011. This item is FCC 11-75 in IB Docket No. 11-80. See, notice in the Federal Register, Vol. 76, No. 138, Tuesday, July 19, 2011, at Pages 42625-42631.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) [82 pages in PDF] regarding reporting requirements for providers of international telecommunications services. The FCC adopted this NPRM on May 12, 2011, and released the text on May 13, 2011. This item is FCC 11-76 in IB Docket No. 04-112. See, notice in the Federal Register, Vol. 76, No. 138, Tuesday, July 19, 2011, at Pages 42613-42625.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Public Notice (PN) seeking further comments in response to its Notice of Proposed Rulemaking (NPRM) regarding its Lifeline and Link Up Universal Service programs. The FCC released this PN on August 5, 2011. It is DA 11-1346 in WC Docket Nos. 03-109 and 11-42, and CC Docket No. 96-45. The FCC adopted this NPRM on March 3, 2011, and released it on March 4. It is FCC 11-32. See also, notice in the Federal Register, Vol. 76, No. 159, Wednesday, August 17, 2011, at Pages 50969-50971.

Deadline to submit comments to the National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) regarding its draft SP 800-53 Appendix J [24 pages in PDF] titled "Privacy Control Catalog".

Labor Day. This is a federal holiday. See, OPM list of 2011 federal holidays.

The House will meet in pro forma session at 10:00 AM.

The Senate will meet 2:00 PM. It is scheduled to begin consideration of cloture on the motion to proceed to HR 1249 [LOC | WW], the "American Invents Act", the House version of the patent reform bill, and to consider the nomination of Bouie Donald to be a Judge of the U.S. Court of Appeals (6thCir). See, story titled "Senate to Take Up House Patent Bill in September" in TLJ Daily E-Mail Alert No. 2,279, August 4, 2011.

2:00 - 2:15 PM. The American Bar Association (ABA) will host a Training Tuesday webcast event titled "Sync Outlook contacts with Google". See, notice. Free.

3:00 PM. The Senate Appropriations Committee (SAC) will meet to mark up the FY 2012 Department of Homeland Security (DHS) appropriations bill. Location: Room 138, Dirksen Building.

Deadline to submit comments to the U.S. Patent and Trademark Office (USPTO) regarding information collection under its Patent Prosecution Highway (PPH) pilot program. See, notice in the Federal Register, Vol. 76, No. 131, Friday, July 8, 2011, at Pages 40339-40341.

Deadline to submit comments to the U.S. Patent and Trademark Office (USPTO) regarding the USPTO portions of the DOC's document titled "Preliminary Plan for Retrospective Analysis of Existing Rules", which it prepared in response to President Obama's January 18, 2011, Executive Order 13563 titled "Improving Regulation and Regulatory Review". See, notice in the Federal Register, Vol. 76, No. 130, Thursday, July 7, 2011, at Pages 39796-39797. See also, the USPTO's web page titled "Look Back Plan: Plan for Retrospective Analysis of Existing Regulations".

Deadline to submit initial comments in response to the Federal Communications Commission (FCC) in response to its notice of inquiry [19 pages in PDF] titled "Eighth Broadband Progress Notice and Inquiry". This is a Section 706 NOI concerning the availability of advanced telecommunications capability. The FCC adopted and released this NOI on August 5, 2011. It is FCC 11-124 in GN Docket No. 11-121. See also, story titled "FCC Releases NOI for 8th Section 706 Report" in TLJ Daily E-Mail Alert No. 2,283, August 8, 2011.

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