8/6. The U.S. Court of Appeals (10thCir) issued its opinion [43 pages in PDF] in Qwest v. FCC, denying Qwest's petition for review of a Federal Communications Commission (FCC) order denying a request for forbearance under 47 U.S.C. § 160.

The order under review is the FCC's Memorandum Opinion and Order (MOO) [67 pages in PDF], adopted on June 15, 2010, and released on June 22, 2010. It is FCC 10-113 in WC Docket No. 09-135.

The FCC denied Qwest's petition for forbearance from applying certain dominant carrier regulations imposed on incumbent local exchange carriers (ILECs) and certain statutory requirements that require ILECs to unbundle network elements. Qwest's petition pertains to mass market retail services in the Phoenix MSA.

The FCC's denial was based upon a market power analysis adopted by this MOO. Moreover, this analysis included the questionable conclusion that wireless service providers were not in competition with Qwest's wireline voice services.

Qwest was subsequently acquired by CenturyLink. And, back in 2000, Qwest merged with US West, one of the regional Bell operating companies created by the breakup of AT&T in 1984.

The Commission divided, with the two Republicans merely concurring, arguing that the MOO sets too high a standard. See, story titled "FCC Denies Qwest's Petition for Forbearance in Phoenix" in TLJ Daily E-Mail Alert No. 2,100, June 23, 2010.

Section 10 of the Communications Act, which is codified at 47 U.S.C. § 160(c),  provides in part that "Any telecommunications carrier, or class of telecommunications carriers, may submit a petition to the Commission requesting that the Commission exercise the authority granted under this section with respect to that carrier or those carriers, or any service offered by that carrier or carriers. ..."

Subsection 160(a) provides that "the Commission shall forbear from applying any regulation or any provision of this chapter to a telecommunications carrier or telecommunications service, or class of telecommunications carriers or telecommunications services, in any or some of its or their geographic markets, if the Commission determines that -- (1) enforcement of such regulation or provision is not necessary to ensure that the charges, practices, classifications, or regulations by, for, or in connection with that telecommunications carrier or telecommunications service are just and reasonable and are not unjustly or unreasonably discriminatory; (2) enforcement of such regulation or provision is not necessary for the protection of consumers; and (3) forbearance from applying such provision or regulation is consistent with the public interest."

In the 2010 order under review the FCC replaced its previous forbearance analysis with a traditional market power framework. The Court of Appeals wrote that the FCC argued that "a market-power analysis begins by delineating the relevant product and geographic markets and identifying market participants, then examines market-share data, and finally considers whether the potential for competitive market entry is sufficient to constrain an incumbent carrier’s ability to maintain prices above competitive levels."

Applying this, the FCC defined the relevant product market for Qwest's mass market retail services by excluding wireless services. It concluded that other services providers' wireless voice services do not have a material price constraining effect on Qwest's wireline voice services.

Then, after excluding wireless services from its analysis, the FCC concluded that the market is concentrated in two dominant providers, and that forbearance would therefore not be in the public interest.

Qwest argued first, that the forbearance section requires the FCC to make affirmative findings on the substantive prerequisites for granting forbearance, and that it made no such affirmative findings, so that the forbearance request should be deemed granted, and second, that the FCC's decision was irrational.

The Court of Appeals rejected both arguments, concluding that the FCC's decision was both a "reasoned and reasonable decision".

FCC Chairman Julius Genachowski stated in a release after the ruling that "This is another important legal victory for the FCC, which is now winning court cases more than 90 percent of the time. Today's decision is a win for competition and smart government. I'm pleased that the court affirmed the FCC’s ruling establishing a sound and data-driven framework for considering forbearance petitions. Competition drives innovation and investment, and benefits all telecommunications consumers -- individuals as well as businesses of all sizes."

See also, story titled "FCC Files Brief with 10th Circuit in Qwest Phoenix Forbearance Case" in TLJ Daily E-Mail Alert No. 2,215, April 2, 2011.

This case is Qwest Corporation v. FCC and USA, U.S. Court of Appeals for the 10th Circuit, App. Ct. No. 10-9543. Judge Holmes wrote the opinion of the Court, in which Judges Briscoe and Baldock joined.

8/2. The Information Technology and Innovation Foundation (ITIF) released a paper [9 pages in PDF] titled "Looking for Jobs? Look to IT in 2012 and Beyond". The authors are the ITIF's Luke Stewart and Robert Atkinson.

This paper argues that almost all of the job growth in the US economy in the last decade has been in information technology (IT), and therefore, US government officials should implement certain policies recommended in this paper, to preserve and promote this IT job creating machine.

This paper states that, according to the Department of Labor's (DOL) Bureau of Labor Statistics (BLS), "between 2001 and 2011, over 742,000 new IT jobs were created, an increase of 29 percent. Indeed, employment in IT occupations in all industries grew more than 125 times faster than employment as a whole, which grew by only 0.2 percent."

It also states that "Between May 2007 and May 2011, while U.S. jobs shrank by -4.5 percent, IT jobs grew by 6.8 percent".

The paper draws data from the BLS tables titled "Occupational Employment Statistics". This is an annual series. It lists 819 job categories for 2011.

This paper notes that "pundits point to the ever-increasing number of IT jobs moving offshore to lower-cost countries such as India and Eastern Europe". But, the "pessimists have gotten it wrong when it comes to IT offshoring."

It explains that "even though some IT jobs are moving offshore, many of those jobs involve routinized tasks that can utilize lower-skill labor. While computer programming jobs declined by approximately 180,000 jobs over the last decade -- presumably much of it to due to offshoring -- programming jobs in fact occupy the lower-value end of software production. The higher-value end, occupied by software developers who design the underlying systems behind the software, requires higher-skill labor, and thus is harder to move to low-wage nations. Indeed, software developer jobs paid 22 percent more than the average IT job, 26 percent more than computer programmers, and grew by over 300,000 during this period". (Footnotes omitted.)

This paper also offers recommendations for policy makers. First, "in order to sustain the growth in IT jobs ... policymakers must ensure that training and education programs effectively enhance Americans' IT skills. Even as these high-paying IT jobs continue to expand, too few students are learning IT."

Also, "policymakers must overhaul and expand computer science education, particularly at the high school level. One simple step would be for states to allow computer science courses to count toward the core requirements of math or science."

Also, "policymakers need to ensure that needed foreign IT talent is able to easily enter and work in the United States."

Finally, the paper recommends that "ill-suited public policies, such as overly stringent regulations and excessive taxes on broadband, privacy, and e-commerce can have the opposite effect, limiting investment and retarding job growth".

This paper is a more in depth and up to date version of an ITIF paper [4 pages in PDF] published on April 22, 2010.

Commentary. In this paper, the ITIF argues that policy makers should adopt pro IT policies because of jobs. Jobs is a widely shared policy goal in Washington DC.

This paper does not argue any of the many other rationales for supporting development of the IT sector, such as increased productivity across most sectors of the economy, improved quality of life, better access to information about the activities of government, and so forth.

Since the ITIF based this paper on job creation, it would also arguably be relevant to consider, not only jobs created, but also jobs lost, as a result of IT, including by Schumpeterian creative destruction.

This paper includes BLS data on information technology (IT) related job categories, but not communications technology sector job categories. Thus, this paper includes data categories in which employment grew, while leaving out those in which employment decreased, as a result of IT.

One long term trend has been that through technological innovation analog circuit switched technologies have been replaced or improved by digital packet switched technologies. And, this new internet protocol communications technology has enabled a wide wide range of new IP based services.

For example, the paper did not include, from the same BLS data sets, "Telecommunications Line Installers and Repairers", in which employment dropped from 168,260 in 2001 to 148,930 in 2011. Nor did it include "Telecommunications equipment installers and repairers, except line installers" (which dropped from 210,650 to 199,240), "Telephone operators" (which dropped from 57,500 to 14,890), "Switchboard Operators, Including Answering Service (which dropped from 227,660, to 132,680), or "Telemarketers" (which dropped from 437,510 to 258,060).

The BLS data is less useful in measuring other types of Schumperterian job losses that result from the success of IT, such as job losses in brick and mortar retail stores that follow the growth of IT based e-commerce and auctions web sites.

Moreover, some of the information technology employment gains measured by the ITIF have resulted in job losses in other information sectors.

The BLS also published a collection of papers [190 pages in PDF] in January of 2012 titled "Employment Outlook: 2010-2020". This study finds that for all information services (which also includes the publishing, movie, record and other sectors) total employment fell from 3,630,600 in 2000 to 2,710,900 in 2010 -- a 2.9 percent annual rate of decline. (See, page 66.)

According to the BLS's aggregation of job data, the industry sectors that experienced the biggest job growth from 2000 to 2010 were education (at a growth rate of 2.8% per year), health care (2.6%), and mining (2.3%). The biggest job losers were manufacturing (-4.0%), information services (-2.9%), construction (-2.0%), and agriculture (-1.1%).

Moreover, the same BLS data sets that the ITIF paper uses to demonstrate IT sector growth in employment, also disclose the devastating effect that the success of IT sectors has had on specific categories of information workers.

For example, journalists can be counted in the combined fields of reporters and correspondents, radio and television announcers, and news analysts. In 2001 these totaled 114,550. By 2011 they had shrunk to 82,150. This is a decline of over 28%.

The ranks of photographers were likewise devastated in the same ten year period, from 61,250 to 54,410.

Editors dropped from 105,130 to 98,990. The number of "Writers and authors" and "Broadcast technicians" also declined.

The category of "musicians and singers" contracted from 55,100 to 42,530.

The IT sector has benefited from the free flow of information across IP networks and services. This same activity has disrupted information workers' ability to exclude people from access to their works, and hence, their ability to monetize their efforts, and keep their jobs. This shows up starkly in the jobs data for the last decade.

Finally, it might be noted that the BLS entry for "Reporters and Correspondents" is followed by its entry for "Public Relations Specialists". While there was a sharp contraction in jobs for reporters, jobs for PR people grew from 132,390 in 2001 to 212,520 in 2011.

8/3. The Department of Labor's (DOL) Bureau of Labor Statistics (BLS) released employment data for the U.S. for the month of July 2012.

The BLS stated in a release that the seasonally adjusted unemployment rate in the US in July was 8.3%. This is an increase from the 8.2% rate in June. The unemployment rate was 8.2% in March, 8.1% in April, and 8.2% in May.

Recent TLJ stories have reported on employment trends in information and communications technology (ICT) sectors. That is, employment in both telecommunications services and equipment manufacturing is declining. However, in July employment in both communications equipment manufacturing and telecommunications services rose. Nevertheless, a gain in one month does not constitute a new trend.

See also,

• "Overall Unemployment Rate Steady; Tech Employment Up; Communications Employment Down" in TLJ Daily E-Mail Alert No. 2,388, June 1, 2012.
• "BLS Employment Data Shows Downward Trend in Communications and Upward Trend in IT" in TLJ Daily E-Mail Alert No. 2,366, April 9, 2012.
• "Bureau of Labor Statistics Reports on Overall and ICT Employment" in TLJ Daily E-Mail Alert No. 2,281, August 6, 2011.
• "BLS Reports on Employment" in TLJ Daily E-Mail Alert No. 2,171, December 7, 2010.

Table B-1 attached to the BLS report reveals employment trends in various industry sectors, including information and communications technology (ICT) sectors.

The table below contains ICT related excerpts from the BLS table titled "Table B-1. Employees on nonfarm payrolls by industry sector and selected industry detail". This is the seasonally adjusted data.

Political Manipulation of BLS Statistics. The lead paragraph of the BLS release states that "the unemployment rate was essentially unchanged". In fact, it rose.

The House Oversight and Government Reform Committee (HOGRC) held a hearing on June 6, 2012 titled "Addressing Concerns about the Integrity of the U.S. Department of Labor's Jobs Reporting". The hearing focused on two issues, manipulation of green jobs data by the DOL, and the DOL's changes to how its lock down procedures affect news media access to BLS jobs data.

Dianne Furchgott-Roth of the Manhattan Institute, who is also a former Chief Economist at the DOL, testified regarding DOL support for the Obama administration's promotion of "government spending to promote green jobs". She wrote in her prepared testimony that "The United States government may not be good at creating jobs, but it excels at relabeling existing jobs as green jobs."

Rep. Darrell Issa (R-CA), the Chairman of the HOGRC, wrote in his prepared statement that the DOL "has jeopardized the integrity of employment data -- in some cases for clearly political reasons". He stated at the hearing that by reclassifying jobs such as welder and lobbyist as green, it is creating "false data".

Rep. Issa added that Secretary of Labor Hilda Solis declined to testify at this hearing.

The House will not meet, except for pro forma sessions, until September 10.

The Senate will meet at 11:00 AM in pro forma session.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Trans Video Electronics v. Sony Electronics, App. Ct. No.2012-1110, an appeal from the U.S. District Court (NDCal) in a patent infringement case involving video distribution technology, D.C. No. 09-civ-3304. Location: Courtroom 201.

11:00 AM. FCC Chairman Julius Genachowski will speak at an event hosted by Connect2Compete. Location: Latin American Youth Center, Community Room, 1st Floor, 1419 Columbia Road, NW.

1:30 - 3:00 PM. The New America Foundation (NAF) will host a panel discussion titled "Congress 2.0: How is Congress Coping with the Information Revolution?". See, notice. Location: Suite 400, NAF, 1899 L St., NW.

6:00 - 8:15 PM. The DC Bar Association will host a presentation titled "Ethics of E-Mail and Social Media". The speaker will be Thomas Spahn (McGuire Woods). The price to attend ranges from $89 to $129. Reporters are barred from attending most DC Bar events. CLE credits. See, notice. For more information, call 202-626-3488. Location: DC Bar Conference Center, 1101 K St., NW.

The House will not meet, except for pro forma sessions, until September 10.

The Senate will not meet, except for pro forma sessions, until September 10.

9:00 AM. The Federal Communications Commission's (FCC) Advisory Committee for the 2015 World Radiocommunication Conference (WRC-15) will hold its first meeting. See, notice. Location: FCC, Commission Meeting Room, Room TW-C305, 445 12th St., SW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Northrup Grumman Computing Systems v. US, App. Ct. Nos. 2011-5124 and 2012-5044, appeals from the U.S. Court of Federal Claims. Location: Courtroom 402.

5:00 PM. Deadline to register to present comments at the President's National Security Telecommunications Advisory Committee (NSTAC) August 16 meeting. The agenda includes discussions of (1) the Nationwide Public Safety Broadband Network (NPSBN), (2) the DHS's National Cybersecurity and Communications Integration Center (NCCIC), and (3) the proposal to develop a separate out of band data network supporting communications among carriers, ISPs, vendors, and additional critical infrastructure owners and operators during a severe cyber incident that renders the internet unusable. See, notice in the Federal Register, Vol. 77, No. 146, Monday, July 30, 2012, at Pages 44641-44642.

Deadline to submit comments to the National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) regarding its draft NIST IR-7823 [67 pages in PDF] titled "Advanced Metering Infrastructure Smart Meter Upgradeability Test Framework".

The Senate will meet at 11:00 AM in pro forma session.

Deadline to submit written comments to the President's National Security Telecommunications Advisory Committee (NSTAC) in advance of its August 16 meeting. The agenda includes discussions of (1) the Nationwide Public Safety Broadband Network (NPSBN), (2) the DHS's National Cybersecurity and Communications Integration Center (NCCIC), and (3) the proposal to develop a separate out of band data network supporting communications among carriers, ISPs, vendors, and additional critical infrastructure owners and operators during a severe cyber incident that renders the internet unusable. See, notice in the Federal Register, Vol. 77, No. 146, Monday, July 30, 2012, at Pages 44641-44642.

Deadline to submit comments to the National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) regarding its draft SP 800-76-2 [57 pages in PDF] titled "Biometric Data Specification for Personal Identity Verification".

Deadline to submit comments to the National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) regarding its draft FIPS-201 -2 [89 pages in PDF] titled "Personal Identity Verification (PIV) of Federal Employees and Contractors".

The Federal Communications Bar Association's (FCBA) Young Lawyers Committee will host an event titled "3rd Annual End of Summer Rooftop BBQ". The price to attend is $15. Registrations and cancellations are due by 4:00 PM. on August 8. See, notice. For more information contact Justin Faulb at faulbjl at gmail dot com, Delara Derakhshani at delara dot derakhshani at gmail dot com, or Brendan Carr at BrendanTCarr at gmail dot com. Location: undisclosed.

5:00 PM. Deadline to submit initial comments to the Copyright Office (CO) in response to its notice in the Federal Register (FR) regarding its proposed rules that implement the provision of the Satellite Television Extension and Localism Act of 2010 (STELA) that allows copyright owners to audit certain Statements of Account filed with the CO. See, FR, Vol. 77, No. 115, Thursday, June 14, 2012, at Pages 35643-35652. See also, story titled "Copyright Office Issues Proposed STELA Rules Regarding Auditing Statements of Account" in TLJ Daily E-Mail Alert No. 2,398, June 18, 2012.

The Senate will meet at 2:30 PM in pro forma session.

9:00 AM - 5:00 PM. Day one of a two day meeting of the Department of Energy's (DOE) Advanced Scientific Computing Advisory Committee (ASCAC). See, notice in the Federal Register, Vol. 77, No. 147, Tuesday, July 31, 2012, at Pages 45345-45346. Location: American Geophysical Union (AGU), 2000 Florida Ave., NW.

8/6. Lisa Robinson was named Director, Collections and Income Tracking, of the Harry Fox Agency (HFA). See, HFA release.

8/3. Andrew Gavil was named Director of the Federal Trade Commission's (FTC) Office of Policy Planning (OPP), effective September 4, 2012, replacing Susan DeSanti, who has moved to the FTC's Western Regional Office in San Francisco, California. In the interim, OPP Deputy Director Tara Koslov will be the acting Director. Gavil is currently a law professor of Howard University, where he teaches antitrust law and other subjects. See, FTC release.

8/3. Steven Bellovin was named Chief Technologist at the Federal Trade Commission (FTC). He is a professor of computer science at Columbia University. See, FTC release. He has published articles recently on privacy and online social networking web sites.

8/3. Richard Brunell was named Senior Advisor for Competition Matters at the Federal Trade Commission (FTC). He previously worked for the American Antitrust Institute (AIA). See, FTC release.

8/3. Randy Stutz, Senior Counsel and Director of Special Projects at the American Antitrust Institute (AAI), will direct the AAI's amicus program, because Richard Brunell, the AAI's Director of Legal Advocacy, was named Senior Advisor for Competition Matters at the Federal Trade Commission (FTC). In addition, Sandeep Vaheesan joined the AAI as Special Counsel. He previously worked for the law firm of Vinson & Elkins, where he focused on antitrust in electric power markets. See, AAI release.

8/7. The Copyright Royalty Board (CRB) published a notice in the Federal Register (FR) that requests comments regarding the Alliance of Artists and Recording Companies' (AARC) motion for partial distribution in connection with 2011 DART Sound Recordings Fund royalties. The deadline to submit comments to the CRB is September 6, 2012. See, FR, Vol. 77, No. 152, August 7, 2012, at Pages 47120-47121.

8/6. The U.S. Patent and Trademark Office (USPTO) published a notice in the Federal Register (FR) that announced, describes, recites, and sets the effective date for, new rules, written pursuant to Section 6 of the Leahy Smith America Invents Act, regarding ex parte reexamination, inter partes review, and post grant review. These and other AIA rules take effect on September 16, 2012. See, FR, Vol. 77, No. 151, August 6, 2012, at Pages 46615-46631.

7/27. The Copyright Office (CO) published a notice in the Federal Register (FR) requesting comments regarding proposed changes to CO regulations for reporting Monthly and Annual Statements of Account for the making and distribution of phonorecords under the compulsory license. The deadline to submit initial comments is September 25, 2012. The deadline to submit reply comments is October 25. See, FR, Vol. 77, No. 145, Friday, July 27, 2012, at Pages 44179-44197.

7/23. The Office of the U.S. Trade Representative (OUSTR) published a notice in the Federal Register that announces that it will a hearing on September 24, 2012 regarding Canada's participation in the negotiation of a Trans Pacific Partnership (TPP) trade agreement. The OUSTR also seeks written comments on numerous issues, including "electronic commerce issues" and "trade-related intellectual property rights issues". The deadline to submit written requests to present oral testimony is September 4. The deadline to submit written comments is 12:00 NOON on September 4. See, FR, Vol. 77, No. 141, July 23, 2012, at Pages 43131-43133.

7/23. The Office of the U.S. Trade Representative (OUSTR) published a notice in the Federal Register (FR) that announces that it will a hearing on September 21, 2012 regarding Mexico's participation in the negotiation of a Trans Pacific Partnership (TPP) trade agreement. The OUSTR also seeks written comments on numerous issues, including "electronic commerce issues" and "trade-related intellectual property rights issues". The deadline to submit written requests to present oral testimony is September 4. The deadline to submit written comments is 12:00 NOON on September 4. See, FR, Vol. 77, No. 141, July 23, 2012, at Pages 43133-43135.

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