2/19. The Department of Commerce's (DOC) National Telecommunications and Information Administration (NTIA) released a report [5 pages in PDF], as required by Section 6401 of the 2012 spectrum bill, that identifies the 1695-1710 MHz spectrum band for reallocation from federal to non-federal use.

The NTIA previously recommended reallocation of this band. See, NTIA November 15, 2010 report [262 pages in PDF] titled "An Assessment of the Near-Term Viability of Accommodating Wireless Broadband Systems in the 1675-1710 MHz, 1755-1780 MHz, 3500-3650 MHz, and 4200-4220 MHz, 4380-4400 MHz Bands". See also, and story titled "NTIA Announces Plan to Reallocate 115 MHz of Spectrum" in TLJ Daily E-Mail Alert No. 2,157, November 16, 2010.

The 112th Congress enacted HR 3630 [LOC | WW], the "Middle Class Tax Relief and Job Creation Act" in February of 2012. That bill, among other things, gave the FCC authority to conduct incentive auctions.

Section 6401(a) provides that "Not later than 1 year after the date of the enactment of this Act, the Secretary of Commerce shall submit to the President a report identifying 15 megahertz of spectrum between 1675 megahertz and 1710 megahertz for reallocation from Federal use to non-Federal use."

Then, "the President shall ... not later than 3 years after the date of the enactment of this Act, begin the process of withdrawing or modifying the assignment to a Federal Government station of the electromagnetic spectrum" described above.

The NTIA's 2010 report recommended that this 15 MHz be reallocated for "wireless broadband use on a shared basis".

The just released report states that the NTIA's Commerce Spectrum Management Advisory Committee (CSMAC) established a working group that "has been developing ways to facilitate the introduction of commercial wireless broadband in this 15 megahertz of spectrum through improved modeling of commercial wireless networks and the possible reductions in the size of exclusion zones". Moreover, this working group "has made significant progress toward an effective and efficient spectrum sharing framework".

Hence, the report states that the Federal Communications Commission (FCC) "can proceed now with its process to repurpose the 15 megahertz between 1695 MHz and 1710 MHz".

This report adds that "During its meeting in February 2013, the CSMAC will likely recommend a regulatory framework for sharing in the 1695-1710 MHz band that will allow flexibility for and coordination of actual commercial system implementation within the protection zones around federal meteorological-satellite receive sites".

This meeting is scheduled for February 21, from 9:00 AM - 12:00 NOON at the Stanford Institute for Economic Policy Research (SIEPR), in Stanford, California. It will be webcast. See, notice in the Federal Register, Vol. 78, No. 23, February 4, 2013, at Page 7758.

As directed by Congress in Section 6401(a)(3) of the Middle Class Tax Relief and Job Creation Act of 2012 (Tax Relief Act), this report identifies 15 megahertz of spectrum between 1675 MHz and 1710 MHz for reallocation from federal use to non-federal use.1 Specifically, the Secretary of Commerce, through the National Telecommunications and Information Administration (NTIA), recommends that the Federal Communications Commission (FCC) reallocate the 1695-1710 MHz band for commercial use.2

This recommendation reaffirms NTIA's January 2011 conclusion that the FCC should repurpose the 1695-1710 MHz band for wireless broadband use on a shared basis, as NTIA identified in its Fast Track Report.3

The just released report is titled "Identification of 15 Megahertz of Spectrum Between 1675 and 1710 MHz for Reallocation from Federal Use to Non-Federal Use Pursuant to Section 6401(a) of the Middle Class Tax Relief and Job Creation Act of 2012"

2/12. Rep. Ted Poe (R-TX), Rep. Zoe Lofgren (D-CA), and others introduced HR 22 [LOC | WW], the "Foreign Counterfeit Merchandise Prevention Act", a bill to amend both the Trade Secrets Act and the Lanham Act to allow the Department of Homeland Security's (DHS) U.S. Customs and Border Protection (CBP) to share certain information with the owners of copyrights and registered marks.

This is very similar, but not identical, to HR 6654 [LOC | WW | PDF], a bill with the same title, that was introduced late in 112th Congress. And, HR 6654 was a revised version of HR 4216 [LOC | WW], the "Foreign Counterfeit Prevention Act".

See, story titled "Representatives Introduce Revised Version of Customs Information Sharing Bill" in TLJ Daily E-Mail Alert No. 2,492, December 17, 2012, and story titled "titled "Rep. Poe and Rep. Chabot Introduce Bill to Allow Customs to Share Information with Rights Holders" in TLJ Daily E-Mail Alert No. 2,354, March 23, 2012.

HR 22 was referred to the House Judiciary Committee (HJC), which has jurisdiction over intellectual property matters, rather than the House Homeland Security Committee (HHSC), which oversees the DHS's CBP. However, this bill was referred to the HJC's Subcommittee on Crime, Terrorism, Homeland Security, and Investigations, rather than its Subcommittee on Courts, Intellectual Property and the Internet (SCIPI).

Rep. Poe (at right) and Rep. Lofgren are members of the HJC and SCIPI, but not the Crime Subcommittee. The other original cosponsors of this bill are Rep. Steve Chabot (R-IN), Rep. Buck McKeon (R-CA), Rep. William Keating (D-MA), Rep. Linda Sanchez (D-CA), and Rep. Mike McCaul (R-TX). Rep. McCaul is the Chairman of the HHSC.

Since introduction on January 3, other Representatives have joined in cosponsoring this bill, including Rep. Anna Eshoo (D-CA), the ranking Democrat on the House Commerce Committee's (HCC) Subcommittee on Communications and Technology (SCT). Also, on February 12, Rep. Howard Coble (R-NC), Chairman of the HJC's SCIPI, joined as a cosponsor.

However, neither Rep. Bob Goodlatte (R-VA) nor Rep. John Conyers (D-MI), Chairman and ranking Democrat on the full Committee, are cosponsors. Nor is Rep. Mel Watt (D-NC), the ranking Democrat on SCIPI. Nor are Rep. James Sensenbrenner (R-WI) or Rep. Bobby Scott (D-VA), the Chairman and ranking Democrat on the Crime Subcommittee.

Rep. Scott criticized an earlier version of this bill as overbroadly allowing the sharing of proprietary and confidential supply chain information.

CBP Information Sharing. The CBP manages border and point of entry operations. This includes enforcing laws pertaining to importations of merchandise bearing recorded trademarks or recorded trade names, and circumvention devices banned by the Digital Millennium Copyright Act (DMCA). It is a function of the CBP to detect and block the importation of counterfeit goods and circumvention devices.

This protects the proprietary interests of rights holders. It also protects consumers. It also protects public safety, for example, in cases involving counterfeit and fake pharmaceutical products.

Historically, the CBP has obtained assistance from rights holders to assist it in determining if goods are counterfeit. This entails giving information about suspected goods to rights holders.

However, information sharing can also harm lawful importers, for example, when CBP provides sensitive information to the rights holders who are their competitors. The sharing of information by the CBP can entail providing competitors with information regarding where goods are made, by whom, when, and at what prices. It can also entail revealing sensitive information about the identity of wholesalers, exporters and other parties.

The American Free Trade Association (AFTA), stated in a release regarding HR 22 that "It is critical that CBP do everything possible to prevent entry of counterfeit merchandise which threatens or potentially threatens the health or welfare of American consumers. However, it is equally important to protect the valuable trade secrets and proprietary supply chain information of lawful U.S. importers. AFTA is committed to protecting against confusing, duplicative, unnecessary and conflicting rules and regulations impacting global trade in genuine branded consumer products, and is closely monitoring HR 22 which, in the guise of an anti-counterfeiting tool, has the much greater likelihood of decreasing product supply and escalating prices for genuine, brand name merchandise."

CBP Interpretation of Trade Secrets Act. In 2008 the CBP interpreted the Trade Secrets Act, which is codified at 18 U.S.C. § 1905, to bar this practice of sharing information with rights holders. Section 1905 is a broad criminal prohibition of disclosure of information by officers or employees of the federal government of certain trade secrets, proprietary information, and certain confidential commercial data that they obtain in the course of investigations.

Currently, the Section 1905 provides as follows: "Whoever, being an officer or employee of the United States or of any department or agency thereof ... publishes, divulges, discloses, or makes known in any manner or to any extent not authorized by law any information coming to him in the course of his employment or official duties or by reason of any examination or investigation made by, or return, report or record made to or filed with, such department or agency or officer or employee thereof, which information concerns or relates to the trade secrets, processes, operations, style of work, or apparatus, or to the identity, confidential statistical data, amount or source of any income, profits, losses, or expenditures ... shall be fined under this title, or imprisoned not more than one year, or both; and shall be removed from office or employment."

This 2008 CBP interpretation made it more difficult for the CBP to block importation of counterfeits, and circumvention devices banned by 17 U.S.C. § 1201. This interpretation had the effect of harming rights holders, consumers and public safety.

Bill Summary. Section 2 of HR 22 would amend the Trade Secrets Act to clarify that the CBP can forward information, and samples, to rights holders and other injured parties, but only with respect to "tangible goods" presented to the CBP.

It would provide that it is not a violation of § 1905 for the CBP,

"upon detention and thereafter, to provide to the owner of a copyright or a registered mark, or to any person who may be injured by a violation of section 1201 of title 17--
(1) any information appearing on the merchandise, including its retail packaging,
(2) a sample of the merchandise and its retail packaging, or
(3) digital images of the merchandise and its retail packaging,
as it was presented to U.S. Customs and Border Protection, without redaction, whether imported into or exported from the United States, or attempted to be exported from the United States, for purposes of determining whether the merchandise or its retail packaging infringes the copyright, bears or consists of a counterfeit mark of the registered mark, or is in violation of section 1201".

It would also provide that it is not a violation of § 1905 for the CBP,

"after seizing merchandise pursuant to a determination that the merchandise is in violation of section 1201 of title 17, to provide, to persons injured by the violation, information with respect to the merchandise, including, but not limited to, the following:
(1) The date of importation.
(2) The port of entry.
(3) The description of the merchandise from the entry.
(4) The quantity involved.
(5) The country of origin of the merchandise.
(6) The name and address of the foreign manufacturer.
(7) The name and address of the exporter.
(8) The name and address of the importer.
(9) Photographic or digital images of the merchandise.

Section 3 would revise the Lanham Act, at 15 U.S.C. § 1124, to provide that,

"With respect to critical merchandise that bears a registered trademark recorded under subsection (a), if U.S. Customs and Border Protection detains the merchandise because the merchandise is suspected of bearing a counterfeit mark, then, upon such detention, the Secretary -- (1) shall provide to the owner of the registered trademark any information on the critical merchandise and its packaging and labels, including, without redaction, photographs or digital images of the critical merchandise, packaging, and labels; and (2) may, at any time, subject to any applicable bonding and return requirements, provide to the owner of the registered trademark samples of the critical merchandise, without redaction." (Emphasis added.)

The term "critical merchandise" is critical this bill. It is defined to include only certain enumerated classes of merchandise. The list includes "semiconductors", which in turn is defined as a "semiconductor chip product" as defined by 17 U.S.C. § 901.

Section 901 defines "semiconductor chip product" as "having two or more layers of metallic, insulating, or semiconductor material, deposited or otherwise placed on, or etched away or otherwise removed from, a piece of semiconductor material in accordance with a predetermined pattern; and (B) intended to perform electronic circuitry functions".

However, the just introduced HR 22 shortens the list of "critical merchandise" from the list contained in HR 6654 (112th Congress).

HR 22 covers only aircraft engines and parts, "motor vehicle equipment", semiconductors, and "any other article of manufacture that the Secretary determines could, if permitted entry into the United States in violation of the laws of the United States pose a danger to the health, safety, or welfare of consumers, or to the national security of the United States".

HR 6654 had more broadly covered things such as cosmetics, tobacco products, and "devices".

2/14. The Senate Judiciary Committee (SJC) approved the nomination of Patty Schwartz (USCA/3rdCir) by a vote of 11-7, without any debate or discussion. It was a straight party line vote, with all of the Democrats voting yes, and the Republicans voting no, except that Sen. Charles Grassley (R-IA) voted yes. Schwartz was blocked by filibuster in the 112th Congress.

2/14. The Senate Judiciary Committee (SJC) approved the nomination of Caitlin Halligan (USCA/DCCir) by a vote of 10-7. It was a straight party line vote, with all of the Democrats voting yes, and all of the Republicans voting no, except that Sen. Mike Lee (R-UT) missed the vote. Halligan was blocked by filibuster in the 112th Congress.

2/14. The Senate Judiciary Committee (SJC) approved in one en banc voice vote, without any debate or discussion, the nominations of Ketanji Jackson (USDC/DC), Mark Barnett (USITC), and Claire Kelly (USITC), Katherine Failla (USDC/SDNY), Analisa Torres (USDC/SDNY), Pamela Ki Mai Chen (USDC/EDNY), Andrew Gordon (USDC/DNev), Raymond Moore (USDC/DColo), Troy Nunley (USDC/EDCal), Beverly O'Connell (USDC/CDCal), and Derrick Watson (USDC/DHaw).

2/14. The Senate Judiciary Committee (SJC) held an executive business meeting at which it held over the nominations of Shelly Dick (USDC/MDLa), William Orrick (USDC/NDCal), and Nelson Roman (USDC/SDNY). These nominations are again on the agenda for the SJC's executive business meeting on February 28, 2013.

12/13. The Senate confirmed William Kayatta to be a Judge of the U.S. Court of Appeals (1stCir) by a vote of 88-12. See, Roll Call No. 20. All of the no votes were cast by Republicans. He was the subject of a filibuster in the 112th Congress.

The House will not meet. It will next meet at 2:00 PM on February 25.

The Senate will not meet. It will next meet at 2:00 PM on February 25.

TIME? The Office of the U.S. Trade Representative (OUSTR) will hold a hearing to assist it in making its Special 301 identifications of 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, story titled "OUSTR Seeks Special 301 Comments on Countries that Deny Adequate IPR Protection" in TLJ Daily E-Mail Alert No. 2,500, December 31, 2012. See also, notice in the Federal Register, December 31, 2012, Vol. 77, No. 250, at Pages 77178-77180. Location: OUSTR, 1724 F St., NW.

10:30 AM. The Federal Communications Commission (FCC) will host an event titled "open meeting". See, tentative agenda. Location: FCC, Commission Meeting Room, TW-C305, 445 12th St., SW.

6:00 - 7:30 PM. The New America Foundation (NAF) will host a panel discussion titled "Your Smartphone Has Hijacked Your Life". The speakers will be Christine Rosen (NAF), Daniel Sarewitz (Arizona State University), Marvin Ammori (NAF), and Miriam Warren (Yelp). See, notice. Location: NAF, Suite 400, 1899 L St., NW.

6:00 - 8:15 PM. The Federal Communications Bar Association's (FCBA) Wireline Committee will host an event titled "The Transition from PSTN to IP: Key Regulatory Issues". CLE credits. Prices vary. See, notice. Reservations and cancellations are due by 12:00 NOON on February 19. Location: Davis Wright Tremaine, 1919 Pennsylvania Ave., NW.

Deadline to register to attend the University of Colorado's (UC) Silicon Flatirons Center (SFC) five day conference on May 18-22 titled "Institute for Regulatory Law and Economics Seminar", to be held in Aspen, Colorado. See, notice.

The House will not meet. It will next meet at 2:00 PM on February 25.

The Senate will not meet. It will next meet at 2:00 PM on February 25.

12:00 NOON. The Federal Communications Bar Association (FCBA) will host a lunch. The speaker will be FCC Commissioner Ajit Pai. The deadline for reservations and cancellations is 12:00 NOON on February 15. Prices vary. No CLE credits. See, notice. Location: Mayflower Hotel, 1127 Connecticut Ave., NW.

12:00 NOON - 1:30 PM. The National Economists Club (NEC) will hold lunch. The speaker will be Jun Saito (Senior Research Fellow, Japan Center for Economic Research). Location: Chinatown Garden Restaurant, 618 H St., NW.

1:00 - 5:00 PM. The National Telecommunications and Information Administration (NTIA) will hold another in its series of meetings regarding mobile application transparency. See, notice. This event will also be teleconferenced. Location: American Institute of Architects, 1735 New York Ave., NW.

1:00 PM. The US Telecom will host a webcast seminar titled "Monitoring & Optimizing Real Time IP Communications Networks". The speaker will be Renuka Prasad (Acme Packet). Free. See, notice.

The House will not meet. It will next meet at 2:00 PM on February 25.

The Senate will not meet. It will next meet at 2:00 PM on February 25.

Supreme Court conference day. See, Supreme Court calendar.

President Obama will meet in Washington DC with the Prime Minister of Japan, Shinzo Abe. See, White House news office notice.

Day one of a two day event hosted by the Practicing Law Institute (PLI) titled "SEC Speaks 2013". The speakers will include the SEC Commissioners. Among the topics to be addressed by panels are implementation of HR 3606 [LOC | WW], the "Jumpstart Our Business Startups Act of 2012" or "JOBS Act" and the value of XBRL and structured data to investors. Prices vary. CLE credits. See, notice. For more information, contact Laura Shields at 212-824-5797 or lshields at pli dot edu. Location: Ronald Reagan Building and International Trade Center, 1300 Pennsylvania Ave., NW.

Day two of a two day event hosted by the Practicing Law Institute (PLI) titled "SEC Speaks 2013". The speakers will include the SEC Commissioners. Among the topics to be addressed by panels are implementation of the JOBS Act and the value of XBRL and structured data to investors. Prices vary. CLE credits. See, notice. For more information, contact Laura Shields at 212-824-5797 or lshields at pli dot edu. Location: Ronald Reagan Building and International Trade Center, 1300 Pennsylvania Ave., NW.

58th birthday of Steve Jobs.

The House will meet at 2:00 PM.

The Senate will meet at 2:00 PM.

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in Comcast v. FCC, App. Ct. No. 12-1337. This is a challenge to the Federal Communications Commission's (FCC) Memorandum Opinion and Order (MOO) in the matter of the Tennis Channel's complaint against Comcast. This MOO is FCC 12-78 in MB Docket No. 10-204 and File No. CSR-8258-P. See also, story titled "FCC Asserts Broad MVPD Program Carriage Authority" in TLJ Daily E-Mail Alert No. 2,412, July 26, 2012. And see, FCC brief. This case is the third of three on the schedule. Judges Kavanaugh, Edwards and Williams will preside. Location: USCA Courtroom, 5th floor, Prettyman Courthouse, 333 Constitution Ave., NW.

12:15 - 1:30 PM. The Federal Communications Bar Association's (FCBA) Intellectual Property Committee will host a brown bag lunch. The topic will be patent infringement litigation. The speakers will be Bill Bradley (Roylance Abrams) and Tim Simeone (Wiltshire & Grannis). Free. Location: Wiltshire Grannis, 1200 18th St., NW.

Day one of a three day event hosted by the Department of Energy (DOE) titled "ARPA-E Energy Innovation Summit". On February 25 from 4:30 to 5:30 PM there will be a panel discussion titled "Get Smart about IP: Pros, Cons and Costs of Your Patent Strategy". The speakers will include Robert Atkinson (Information Technology and Innovation Foundation). See, conference web site. Location: Gaylord National Hotel and Convention Center, 201 Waterfront Street National Harbor, MD.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rule Making (NPRM) regarding implementing allocation decisions from the World Radiocommunication Conference held in Geneva in 2007 (WRC-07) regarding spectrum between 108 MHz and 20.2 GHz, and changing service rules for this spectrum. The FCC adopted this NPRM on November 15, 2012, and released the text on November 19. It is FCC 12-140 in ET Docket No. 12-338. See, notice in the Federal Register, Vol. 77, No. 248, December 27, 2012, at Pages 76250-76287.

10:00 AM. The House Science Committee's (HSC) Subcommittee on Technology and Subcommittee on Research will hold a joint hearing titled "Cyber R&D Challenges and Solutions". The witnesses will be __. See, notice. Location: Room 2318, Rayburn Building.

10:00 AM - 12:00 NOON. The Senate Banking Committee (SBC) will hold a hearing titled "The Semiannual Monetary Policy Report to the Congress". The witness will be Ben Bernanke (Chairman of the Federal Reserve Board). See, notice. Location: Room 106, Dirksen Building.

10:00 AM - 3:00 PM. The Public Knowledge (PK) will host an event titled "2013 PK Policy Symposium". There will be panels titled "Data Caps", "Future of Video", "Copyright Reform", and "Digital First Sale". See, notice and registration page. Location: Room SVC201-00, Capitol Visitor Center.

2:00 PM. The House Foreign Affairs Committee's (HFAC) Subcommittee on Asia and the Pacific will hold a hearing titled "The Rebalance to Asia: Why South Asia Matters (Part I)". The witnesses will be Robert Blake (Department of State) and Joseph Yun (Department of State). See, notice. Location: Room 2172, Rayburn Building.

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

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) regarding IP Captioned Telephone Service. This item is FCC 13-13 in CG Docket Nos. 13-24 and 03-123. The FCC adoptd this item on January 24, 2013, and released the text on January 25. See, notice in the Federal Register, Vol. 78, No. 24, February 5, 2013, at Pages 8090-8096.

CANCELLED. 5:30 - 7:00 PM. The Institute for Policy Innovation (IPI) will host a reception in advance of its February 28 event titled "5th Annual Communications Summit".

9:00 AM - 5:00 PM. Day one of a two day meeting of the Department of Homeland Security's (DHS) Homeland Security Information Network Advisory Committee (HSINAC). See, notice in the Federal Register Vol. 78, No. 23, February 4, 2013, at Pages 7797-7798. Location: Ronald Reagan International Trade Center, 1300 Pennsylvania Ave., NW.

9:30 AM. The House Oversight and Government Reform Committee (HOGRC) will hold a hearing titled "Time to Reform Information Technology Acquisition: The Federal IT Acquisition Reform Act". Location: Room 2154, Rayburn Building.

10:00 AM. The House Appropriations Committee's (HAC) Subcommittee on the Legislative Branch will hold a hearing on the budget for the Library of Congress. The witness will be James Billington. No webcast. See, notice. Location: Room HT-2, Capitol Building.

12:00 NOON - 1:30 PM. The DC Bar Association will host a panel discussion titled "What Intellectual Property Attorneys Need to Know About the New gTLD Program". The speakers will be Scott Harlan (Steptoe & Johnson), Brian Winterfeldt (Steptoe & Johnson), and Danny Awdeh (Finnegan). The price to attend ranges from $15 to $25. No CLE credits. Closed to reporters. See, notice. For more information, call 202-626-3488. Location: Steptoe & Johnson, 1330 Connecticut, Ave., NW.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Public Notices (PNs) regarding development of the forward looking cost model for Connect America Phase II. These PNs are DA 12-1561, DA 12-1687, DA 12-2011, DA 12-2029, and DA 13-70 in WC Docket Nos. 10-90 and 05-337. See, notice in the Federal Register, Vol. 78, No. 18, January 28, 2013, at Pages 5765-5767.

2/15. Sen. Frank Lautenberg (D-NJ) announced in a release that he will not run for re-election in 2014.

2/14. The Senate Judiciary Committee (SJC) held an executive business meeting at which it held over consideration of the nomination of David Medine to be Chairman of the Privacy and Civil Liberties Oversight Board. His nomination is again on the agenda for the SJC's executive business meeting on February 28, 2013.

2/14. The Senate Judiciary Committee (SJC) held an executive business meeting at which Sen. Patrick Leahy (D-VT), the Chairman of the SJC, presented Sen. Orrin Hatch (R-UT) with a gavel on the occasion of his becoming the longest serving Republican member in the history of the SJC. Sen. Leahy and Sen. Hatch both joined the SJC in 1979.

2/14. Sen. Charles Grassley (R-IA) announced at an executive business meeting of the Senate Judiciary Committee (SJC) that a member of his SJC staff, Ralph Johnson, died. He also worked on the staff of Sen. Jeff Sessions (R-AL) on the confirmation of Elena Kagan to be a Justice of the Supreme Court. Sen. Patrick Leahy (D-VT) reflected that the SJC is like a family, and this is a death in the family.

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