TLJ News from March 21-25, 2008

Yahoo, Google and MySpace to Form OpenSocial Foundation for Web Based Social Applications

3/25. Google, MySpace and Yahoo announced that the three companies "they have agreed to form the OpenSocial Foundation to ensure the neutrality and longevity of OpenSocial as an open, community-governed specification for building social applications across the web". See, Google release and substantially identical Yahoo release.

They wrote that "Yahoo!’s support of OpenSocial and role as a founding member of the new foundation are landmarks for the rapidly growing specification which will now offer developers the potential to connect with more than 500 million people worldwide."

Google's OpenSocial web page "defines a common API for social applications across multiple websites. Built from standard JavaScript and HTML, developers can create apps with OpenSocial that access a social network's friends and update feeds. By using a common API, developers can extend the reach of their applications more quickly, yielding more functionality for users."

The companies also stated that the OpenSocial Foundation "will be an independent non-profit entity with a formal intellectual property and governance framework; related assets will be assigned to the new organization by July 1, 2008. The foundation will provide transparency and operational guidelines around technology, documentation, intellectual property, and other issues related to the evolution of the OpenSocial platform, while also ensuring all stakeholders share influence over its future direction."

District Court Dismisses Phone Tax Refund Claims

3/25. The U.S. District Court (DC) issued its opinion [44 pages in PDF] in In Re Long-Distance Telephone Service Federal Excise Tax Refund Litigation, dismissing all claims by all taxpayer plaintiffs.

This proceeding consolidates several cases involving numerous claims by taxpayers arising out of the Internal Revenue Service's (IRS) long running collection of excise taxes on certain phone services without statutory authority.

Five U.S. Courts of Appeals had held that the tax collection was illegal before the IRS stopped collecting it on July 31, 2006. See, story titled "IRS Announces It Will Cease Its Illegal Collection of Excise Taxes on Phone Service" in TLJ Daily E-Mail Alert No. 1,379, May 26, 2006. That story lists each of the IRS's Appeals Court defeats, and hyperlinks to opinions and TLJ stories. See also, story titled "IRS Announces That It Will Violate Court of Appeals Ruling Regarding Excise Tax on Phone Service" in TLJ Daily E-Mail Alert No. 1,241, October 27, 2005.

Statutes and Regulations. The unlawful tax collection was based upon 26 U.S.C. § 4251, which imposes a 3 percent excise tax on some, but not all, communications services. This tax is sometimes referred to as the "Spanish American War tax", since it was originally imposed to help fund that war.

The Courts held that the IRS was applying Section 4251 to communications services not covered by Section 4251, and the related definitional section.

John Snow is a former Secretary of the Treasury. The IRS is part of the Department of the Treasury (DOT). He announced in May of 2006 that the IRS would follow the law, as interpreted by the courts. However, he also attacked the entire tax. He stated in a May 25, 2006, DOT release that "In addition to ending the litigation, I would like to call on Congress to terminate the remainder of this antique tax by repealing the excise tax on local service as well." He added that this "marks the beginning of the end of an outdated, antiquated tax that has survived a century beyond its original purpose, and by now should have been ancient history."

The IRS also issued IRS Notice 2006-50 [14 pages in PDF], an undated document, at the same time. It identified a refund procedure for taxes wrongfully collected. It stated that "Taxpayers may request a credit or refund of tax on nontaxable service that was billed after February 28, 2003, and before August 1, 2006, only on their 2006 Federal income tax returns."

There is also 26 U.S.C. § 7422(a), which provides in full that "No suit or proceeding shall be maintained in any court for the recovery of any internal revenue tax alleged to have been erroneously or illegally assessed or collected, or of any penalty claimed to have been collected without authority, or of any sum alleged to have been excessive or in any manner wrongfully collected, until a claim for refund or credit has been duly filed with the Secretary, according to the provisions of law in that regard, and the regulations of the Secretary established in pursuance thereof."

In addition, 28 U.S.C. § 1346 provides that "The district courts shall have original jurisdiction, concurrent with the United States Court of Federal Claims, of: (1) Any civil action against the United States for the recovery of any internal-revenue tax alleged to have been erroneously or illegally assessed or collected, or any penalty claimed to have been collected without authority or any sum alleged to have been excessive or in any manner wrongfully collected under the internal-revenue laws

The District Court opinion states also that "If a claim is filed and the IRS denies it or withholds a response for six months, a claimant may file a refund suit against the United States ..."

Plaintiffs' Claims. The District Court's opinion relates to taxpayers' attempts to obtain refunds of the monies collected unlawfully from them. Twelve of the plaintiff taxpayers in these consolidated actions are individuals. The other two plaintiffs are small businesses.

They filed complaints in federal court either prior to the May 2006 announcement, or shortly thereafter.

The plaintiffs asserted numerous claims. First, they sought refunds. Various plaintiffs also sought declaratory and injunctive relief, a writ of mandamus, recovery for violation of the Fifth Amendment's takings clause, and recovery for violation of the Administrative Procedure Act (APA), among other claims.

District Court Opinion. The District Court conceded that "five federal appeals courts unanimously declared the IRS’s reliance on § 4251 to be unlawful", and that the IRS's continued collection of money after court determinations of unlawfulness "may" have been "unwise, stubborn, or inconsiderate positions". Moreover, the District Court made no findings that the IRS had not unlawfully collected taxes from these plaintiffs, or that the IRS had already made refunds.

Rather, the District Court found procedural grounds for dismissing all claims of all plaintiffs.

First, the District Court held that all of the plaintiffs' claims for refunds must be dismissed for failure to exhaust administrative remedies. Some were dismissed for failure to file administrative claims for refunds. The District Court also found grounds for dismissal where the plaintiffs had filed a complaint within five months of filing an administrative claim, but failed to plead whether "the IRS communicated a decision on their claim". The District Court also found procedural fault in failing in administrative claims to "set forth a legal basis for the claim" or the "refund amount". For one plaintiff, the District Court faulted the failure to provide claim amounts "broken down by quarter".

For another plaintiff, the District Court determined that the IRS had not yet made a decision on an administrative claim filed in 2005, even though it had written to the claimant in January of 2006 that it would take no further action. The Court reasoned that the plaintiff failed to either obtain an adverse decision, or wait the requisite time period, before filing an action in federal court. That is, the Court determined that a decision not to make a decision, and not to pay no refund, is not a decision.

Another claim sought a writ of mandamus directing the IRS, among other things, to develop and implement a "Court-supervised program that will effect a refund to all persons who have paid the Communications Excise Tax, at no cost to such taxpayers and without the necessity of submission of a refund application."

The District Court wrote that "Mandamus is a drastic remedy, reserved for extraordinary circumstances", and that "A court has no authority to order a government official to perform a discretionary duty". It dismissed the claim.

Another claim asserted that the IRS violated the Administrative Procedure Act (APA) in failing to follow its own Notice 2006-50. The District Court wrote that "Notice 2006-50 is a statement of internal IRS policy without the force and effect of law", and that it therefore gives rise to no judicial remedy. The Court dismissed the claim.

Another set of claims asserted that the unlawful tax violated the takings clause of the Constitution. The 5th Amendment provides, in part, "nor shall private property be taken for public use without just compensation".

The Court conceded that "Taxation does indeed ``take´´ income". The Court wrote that "Action represented by the government as a tax will be construed as a takings-in-disguise only when the tax is so arbitrary that no other conclusion is plausible."

Perhaps this opinion stands as authority for the proposition, at least in the context of tax collection, that defiance of federal law -- both statutory and multiple appellate opinions -- by an administrative agency is not arbitrary.

This case is In Re Long-Distance Telephone Service Federal Excise Tax Refund Litigation, U.S. District Court for the District of Columbia, MDL Docket No. 1798 and Master File No. 07-mc-0014 (RMU), Judge Ricardo Urbino presiding.

More News

3/25. The Copyright Royalty Judges published a notice in the Federal Register that announces that they have received from SoundExchange "a notice of intent to audit the 2006 and 2007 statements of account submitted by, Ltd. concerning the royalty payments made under two statutory licenses". See, Federal Register, March 25, 2008, Vol. 73, No. 58, at Page 15778.

DOJ Won't Challenge XM Sirius Merger

3/24. The Department of Justice's (DOJ) Antitrust Division announced that it will not challenge the merger of XM and Sirius. The Federal Communications Commission (FCC) has yet to approve the transaction. See also, XM release and release.

The DOJ stated in a release that "the evidence does not demonstrate that the proposed merger of XM and Sirius is likely to substantially lessen competition, and that the transaction therefore is not likely to harm consumers. The Division reached this conclusion because the evidence did not show that the merger would enable the parties to profitably increase prices to satellite radio customers for several reasons, including: a lack of competition between the parties in important segments even without the merger; the competitive alternative services available to consumers; technological change that is expected to make those alternatives increasingly attractive over time; and efficiencies likely to flow from the transaction that could benefit consumers."

The DOJ release explains its conclusion regarding current lack of competition between XM and Sirius. It wrote first that "Because customers must acquire equipment that is specialized to the satellite radio service to which they subscribe, and which cannot receive the other provider's signal, there has never been significant competition for customers who have already subscribed to one or the other service."

Thomas Barnett, the Assistant Attorney General in charge of the Antitrust Division, added in a news teleconference on March 24 that the data shows that there is very little switching.

Second, the DOJ release states that "For potential new subscribers, past competition has resulted in XM and Sirius entering long-term, sole-source contracts that provide incentives to all of the major auto manufacturers to install their radios in new vehicles. The car manufacturer channel accounts for a large and growing share of all satellite radio sales; yet, as a result of these contracts, there is not likely to be significant further competition between the parties for satellite radio equipment and service sold through this channel for many years."

Barnett added in his teleconference that by the time these contracts expire, advances in technology will provide more alternatives to satellite radio, such as mobile broadband internet devices.

The DOJ release also states that "In the retail channel, where the parties likely would continue to compete to attract new subscribers absent the merger, the Division found that the evidence did not support defining a market limited to the two satellite radio firms that would exclude various alternative sources for audio entertainment, and similarly did not establish that the combined firm could profitably sustain an increased price to satellite radio consumers."

The DOJ also concluded that the merged entity will realize efficiencies.

The DOJ concluded that the transaction will not create a satellite radio monopoly because there is not a relevant market comprised of XM and Sirius.

The DOJ did not impose any conditions on the merger.

Barnett stated also that the Antitrust Division has been "very vigilant in enforcing the antitrust laws".

Reaction. Rep. Rick Boucher (D-VA) released a statement in which he praised the DOJ, and urged the FCC to expeditiously approve the merger. He wrote that the DOJ "appropriately defined the relevant market for competitive purposes as the entire marketplace for audio entertainment, including terrestrial radio, Internet radio, and consumer devices, such as iPods. In that broader market, the merged company will have limited ability to raise consumer prices."

He also wrote that XM and Sirius "have announced an intention to offer eight different program packages post-merger, including several options that will enable consumers to select channels on an à la carte basis and pay substantially less than the current subscription price for some of the offerings. This unprecedented approach will provide subscribers with more choices and lower prices and will pave the way for a form of content acquisition based on the individual programming preferences of listeners."

The National Association of Broadcasters (NAB) has endeavored to have the merger blocked. The NAB's Dennis Wharton stated in a release that "We are astonished that the Justice Department would propose granting a monopoly to two companies that systematically broke FCC rules for more than a decade. To hinge approval of this monopoly on XM and Sirius's refusal to deliver on a promise of interoperable radios is nothing short of breathtaking."

The Recording Industry Association of America (RIAA) used this occasion to urge the Congress to extend the performance right to terrestrial radio broadcasters. That is, in the U.S. terrestrial radio broadcasters are currently exempt from paying royalties to recording artists (the rights of songwriters are different) for broadcasting their copyrighted works. There are bills pending in the Congress that would end broadcasters' performance rights exemption. See, HR 4789 [LOC | WW]  and S 2500, [LOC | WW] both of which were introduced on December 18, 2007, and are titled "Performance Rights Act".

Mitch Bainwol, head of the RIAA, stated in a release that "The merger's approval serves as a powerful validation that competitors should play by the same set of rules. On the heels of this decision, the logic for a performance right for terrestrial radio has never been clearer. Terrestrial radio -- unlike satellite, Internet and cable radio -- continues to reap special interest subsidies in the form of free government spectrum and an outdated exemption from compensating artists and record companies. It’s time for that to change and for Congress to provide an economic marketplace where there is parity amongst all delivery platforms."

The Consumer Electronics Association (CEA) praised the DOJ decision in a release. It wrote that "To the extent consumers have been awaiting a decision on this merger to purchase satellite radio systems, they can now move forward with confidence. Now that the DOJ has approved this merger without conditions, we urge the FCC to move quickly to a decision."

Gigi Sohn, head of the Public Knowledge, urged the FCC to impose conditions upon its approval of the merger. She wrote in a release that the merged entity should be required to "make the technical specifications of its devices and network open and available to allow device manufacturers to develop, and consumers to use, any device they choose without interference".

She also urged the FCC to require the new entity to "make available pricing choices such as a la carte or tiered programming", to "make 5% of its channel capacity available to noncommercial educational and informational programming over which it has no editorial control", and "not to raise prices for its combined programming package".

Sohn also urged the FCC to reject certain other proposed conditions, including a broadcast flag mandate, and a prohibition on local programming.

House Commerce Committee to Examine Loss of Laptop with Sensitive Patient Information by NIH

3/24. The House Commerce Committee (HCC) announced in a release that it will investigate the Department of Health and Human Services (HHS) and National Institutes of Health (NIH) regarding "the theft of a government laptop containing sensitive medical information of 2,500 patients enrolled in an NIH study."

The HCC added that the NIH delayed almost a month in notifying affected patients, and that "medical information contained on the laptop was not encrypted, in violation of the government’s data-security policy".

Rep. Bart Stupak (D-MI), Chairman of the HCC's Subcommittee on Oversight and Investigations, stated in this release that "It is troubling that yet another government agency has failed to protect their computers", and that "The theft of a government laptop from an NIH employee and the subsequent mishandling of the situation raise serious questions about the agency’s commitment to data security."

No date has been set for the hearing.

CDT Releases Collection of Definitions Related to Online Behavioral Targeting

3/24. The Center for Democracy and Technology (CDT) released a document [24 pages in PDF] titled "Compendium of ``Sensitive´´ Information Definitions".

In December of 2007, the Federal Trade Commission (FTC) released a document [7 pages in PDF] titled "Online Behavioral Advertising: Moving the Discussion Forward to Possible Self-Regulatory Principles". It proposes "some governing principles for behavioral advertising" and seeks comments on them. See also, story titled "FTC Proposes and Seeks Comments on Voluntary Principles for Online Behavioral Advertising" in TLJ Daily E-Mail Alert No. 1,691, December 19, 2007.

The CDT document lists, describes and explains definitions collected from various federal, state and foreign statutes, regulations and directives, as well as from groups' voluntary programs and policy proposals.

Supreme Court Denies Cert in Intel Patent Case

3/24. The Supreme Court denied certiorari in Maurice Mitchell Innovations v. Intel, a patent infringement action involving CPU technology. See, Orders List [11 pages in PDF] at page 9.

This lets stand the September 24, 2007, nonprecedential opinion [10 pages in PDF] of the U.S. Court of Appeals (FedCir).

Maurice Mitchell Innovations (MMI) is the holder of U.S. Patent No. 4,875,154 titled "Microcomputer with Disconnected, Open, Independent, Bimemory Architecture, Allowing Large Interacting, Interconnected Multi-microcomputer Parallel Systems Accomodating Multiple Levels of Programmer Defined Heirarchy". (Typographical errors in original.)

MMI filed a complaint in the U.S. District Court (EDTex) alleging patent infringement. The District Court held that Claim 1 of this patent is invalid as indefinite pursuant to 35 U.S.C. § 112. The Court of Appeals affirmed.

The Supreme Court wrote that "The petition for a writ of certiorari is denied. The Chief Justice and Justice Alito took no part in the consideration or decision of this petition."

This case is Maurice Mitchell Innovations, L.P. v. Intel Corp., Supreme Court of the U.S., Sup. Ct. No. 07-965, a petition for writ of certiorari to the U.S. Court of Appeals for the Federal Circuit, App. Ct. No. 2007-1108. The Court of Appeals heard an appeal from the U.S. District Court for the Eastern District of Texas, D.C. No. 2:04-CV-450.

CEI Condems EMI Suit Against MP3tunes

3/24. The Competitive Enterprise Institute (CEI) published a short essay titled "The New War on MP3s: EMI's Push to Ban Remote Music Storage". The author is the CEI's Ryan Radia.

On November 9, 2007, various EMI companies filed a complaint [23 pages in PDF] in U.S. District Court (SDNY) against MP3tunes and its CEO, Michael Robertson, alleging copyright infringement.

The complaint alleges that "MP3tunes engages in these acts of willful infringement through its operation of two Internet websites, and Through these websites, Defendant MP3tunes provides its users with an integrated music service through which they can listen to music over their computers, obtain permanent copies of music stored in online ``lockers´´ provided by MP3tunes, transfer music from their MP3tunes lockers to their computers or other portable devices, and further distribute that music to others."

It adds that "the vast majority of the music available through the MP3tunes service is infringing" and that "MP3tunes unlawfully enables, encourages and profits from massive copyright infringement by MP3tunes users. Under established theories of inducement, contributory infringement, and vicarious infringement, Defendants are liable for the infringing acts of their users."

In contrast, the CEI states that the MP3tunes service "lets users store digital music files in a secure, Web-based locker they can access from anywhere. MP3Tunes lets listeners access only music they have uploaded themselves. Like a handheld MP3 player, MP3Tunes frees music lovers from dragging around massive album collections on physical discs."

The CEI argues that "EMI’s argument seems tenuous. MP3Tunes doesn’t ``share´´ files with anybody but the original owner, and paying a third party to act as a custodian does not imply a transfer of ownership. Individuals can already store digital files online using myriad services from Flickr to Mozy. We increasingly back up our entire lives to online repositories, and the individual, not the website, remains the owner."

This case is Capitol Records, Inc., et al. v. MP3tunes, LLP and Michael Robertson, U.S. District Court for the Southern District of New York, D.C. No. 07-CV-9931, Judge Pauley presiding.

Supreme Court Delays Consideration of Cert Petition of Microsoft Counterfeiter

3/24. The Supreme Court issued an order in Rechanik v. Microsoft. It wrote, in full, that "The motion of petitioner for leave to proceed in forma pauperis is denied. Petitioner is allowed until April 14, 2008, within which to pay the docketing fee required by Rule 38(a) and to submit a petition in compliance with Rule 33.1 of the Rules of this Court. The Chief Justice took no part in the consideration or decision of this motion." See, Orders List [11 pages in PDF] at page 2.

Microsoft filed a complaint in the U.S. District Court (NDIll) against Aleks Rechanik and his corporation, Era Soft, alleging trademark infringement, copyright infringement and other claims in connection with the sale of counterfeit Microsoft products. The District Court granted summary judgment to Microsoft. Rechanik, but not Era Soft, appealed.

The U.S. Court of Appeals (7thCir) affirmed on October 2, 2007, in a nonprecedential opinion [5 pages in PDF]. Alek Rechanik filed a petition for writ of certiorari. The Supreme Court has not yet decided whether or not to take the case. However, the granting of certiorari would appear unlikely.

This case is Aleks Rechanik v. Microsoft Corp., Supreme Court of the U.S., Sup. Ct. No. 07-9250, a petition for writ of certiorari to the U.S. Court of Appeals for the 7th Circuit, App. Ct. No. 06-4343. The Court of Appeals heard an appeal from the U.S. District Court for the Northern District of Illinois, Eastern Division, D.C. No. 04 C 7687, Judge James Moran presiding.

People and Appointments

3/24. The Federal Communications Commission's (FCC) Universal Service Administrative Company (USAC) announced that it seeks nominations for two positions on its Board of Directors. One position is to be filled by a representative for competitive local exchange carriers (CLECs). The other is to be filled by a representative for interexchange carriers (other than Bell Operating Companies) with annual operating revenues in excess of $3 Billion per year. The deadline to submit nominations is April 24, 2008. See, FCC notice.

More News

3/24. The Supreme Court denied certiorari in Masters v. Screen Actors Guild. See, Orders List [11 pages in PDF] at page 4. This lets stand the nonprecedential opinion [2 pages in PDF] of the U.S. Court of Appeals (9thCir), which affirmed the judgment of the U.S. District Court (CDCal), which dismissed William Masters' complaint. The Screen Actors Guild (SAG) rejected Masters' application for membership. He then filed a pro se complaint challenging the SAG's bylaws. The District Court held that he lacked standing. This case is William Masters v. SAG, Supreme Court of the U.S., Sup. Ct. No. 07-8861, a petition for writ of certiorari to the U.S. Court of Appeals for the 9th Circuit, App. Ct. No. 06-56265. The Court of Appeals heard an appeal from the U.S. District Court for the Central District of California, D.C. No. 2:2005cv06553.

FCC Releases Details of 700 MHz Auction

3/21. The Federal Communications Commission (FCC) released details regarding the winning bidders in Auction 73, which is also known as the 700 MHz auction.

Verizon Wireless (VW) and AT&T dominated the winning bids. AT&T's winning bids totaled over $6 Billion. VW's winning bids totaled more than $9 Billion. All bids totaled over $19 Billion. However, T-Mobile and Sprint-Nextel acquired spectrum in Auction 66 in 2006, which is also known as the AWS-1 auction.

See, FCC Public Notice [11 pages in PDF] (DA 08-595) and Attachment A [74 pages in PDF] titled "Winning Bids". See also, Attachment B [7 pages in PDF] titled "Bidder/Payment Refund", Attachment C [2 pages in PDF] titled "Withdrawal/Payment", and Attachment D [18 pages in PDF] titled "Instructions for Completing FCC Form 601 and Form 602".

See, full story.

FCC Will Not Offer D Block in Auction 76

3/21. The Federal Communications Commission (FCC) adopted and released an order [2 pages in PDF] that announces that "we decide not to re-offer the D Block license ... immediately in Auction 76 – the contingent, subsequent auction to Auction 73." See also, FCC release.

The D Block is 10 MHz of paired spectrum (758-763 and 788-793). It was to have been auctioned as one nationwide license, and subject to a Public/Private Partnership. That is, the plan was for a commercial licensee to build a nationwide broadband interoperable network for use by public safety entities. It would then have preemptible secondary access to the spectrum. However, no bidder bid the reserve price.

The FCC's order elaborates that "Because the aggregate reserve price for the D Block was not met, there is no winning bidder for that license. Given that the reserve price was met for all other blocks, we find it is in the public interest to provide additional time to consider all options with respect to the D Block spectrum. Therefore, we elect not to re-offer the D Block license immediately in Auction 76."

FCC Commissioner Michael Copps stated in a release [PDF] that "America's first responders still need a national, interoperable wireless broadband network. ... Now we have another chance to build the network that public safety and the American public need. I remain committed to working with my colleagues to succeed in this most important task."

Commissioner Jonathan Adelstein stated in a release [PDF] that "this Order represents a hopeful effort to get back on track." He wrote that "I still believe we can make it work", but that the FCC "failed to make it viable" in the just closed auction.

Jonathan AdelsteinAdelstein (at right) wrote that "A true public-private partnership must meet the needs of both partners. If the needs of public safety are not met, the basic objective is not met. If the needs of the private partner for a return on capital and regulatory certainty are not met, then that partner will not be in a position to attract the capital necessary to meet public safety's objectives."

Gigi Sohn, head of the Public Knowledge, stated in a release that "We are pleased the Commission has decided to separate the D block from the rest of the auction and will not re-auction the spectrum quickly while also examining why the reserve price was not met in an otherwise successful auction. We hope the Commission will take the time to take a wide-ranging view of how the spectrum could be used and on what terms and conditions. Perhaps the D block could be made available to innovators on a wholesale basis as the C block was not."

This order is FCC 08-91 in AU Docket No. 07-157. See also, story titled "FCC Closes 700 MHz Auction" in TLJ Daily E-Mail Alert No. 1,734, March 20, 2008.

Google Asks FCC to Allow Unlicensed Android Devices to Use TV White Space

3/21. Google filed a comment [6 pages in PDF] on March 21, 2008, with the Federal Communications Commission (FCC) regarding use of unlicensed devices in unused television spectrum, which is also known as white space.

It began with the observations that "the vast majority of viable spectrum in this country simply goes unused, or else is grossly underutilized. ... The unique qualities of the TV white space -- unused spectrum, large amounts of bandwidth, and excellent propagation characteristics -- offer a once-in-a-lifetime opportunity to provide ubiquitous wireless broadband access to all Americans."

Google wrote that "Coupled with the ``Android´´ open source platform for mobile consumer devices, TV white spaces can provide uniquely low-cost mobile broadband coverage for all Americans. As announced last fall, over thirty other companies are working with Google through the Open Handset Alliance to develop a fully open source software stack, including the operating system, middleware, and user applications. Android-powered handsets should begin appearing commercially later this year, and would be an excellent match for the TV white space."

See, story titled "Open Handset Alliance Announces Android and New Members" in TLJ Daily E-Mail Alert No. 1,670, November 6, 2007.

Google argued that Motorola's two part proposal for "a combination of geo-location (to protect broadcast TV) and beacons (to protect wireless microphones)", along with a safe harbor approach, "should be seriously considered for incorporation into the FCC’s service requirements for the spectrum". (Parentheses in original.)

See, Motorola's February 28, 2008, filing [10 pages in PDF] and October 18, 2007, filing [46 pages in PDF].

Google added that "Under our own enhanced protection proposal, a TV white space device will not transmit on a channel until it first has received an ``all clear´´ signal for that channel, either directly from a database of licensed transmitters in that area, or from a geo-located device with access to that database."

Google also wrote that under the safe harbor proposal, no TV white space device would be permitted to transmit in channels 36-38.

The National Association of Broadcaster's (NAB) Dennis Wharton stated in a release that "We are pleased that Google now seems to realize that spectrum sensing alone won't protect viewers against interference from unlicensed devices. Unfortunately, simply adding geolocation and beacon sensing does not mean that mobile operation is suddenly feasible. Portable, mobile personal device operation in the same band as TV broadcasting continues to be a guaranteed recipe for producing interference and should not be allowed under any circumstances."

Google also commented on the NAB's opposition, without mentioning it by name. "It is an unfortunate, yet not surprising, fact that some entities prefer the comfort of the past to the promise of the future, and use their influence to convince policymakers to protect legacy applications -- at any and all costs. Technological innovation, and the significant changes it brings, can be a scary prospect for some. But it should not be the government’s role to protect the status quo, especially by blocking access to the new."

Background. The FCC opened this white space proceeding in 2004. See, story titled "FCC Adopts NPRM Regarding Unlicensed Use of Broadcast TV Spectrum" in TLJ Daily E-Mail Alert No. 898, May 14, 2004; and story titled "FCC Releases NPRM Regarding Unlicensed Use of TV Spectrum" in TLJ Daily E-Mail Alert No. 905, May 26, 2004.

The FCC adopted a Report and Order (R&O) and Further Notice of Proposed Rulemaking (FNPRM) in this proceeding on October 12, 2006. It released the text on October 18, 2006. This item is FCC 06-156 in ET Docket Nos. 04-186 and 02-380. See, story titled "FCC Adopts Order and FNPRM Regarding TV White Space" in TLJ Daily E-Mail Alert No. 1,467, October 12, 2006.

The R&O concluded that "fixed low power devices" can be allowed to operate on certain unused TV channels. The FNPRM requested comments pertaining to whether personal/portable devices can operate in any of the TV channels without causing harmful interference, and other issues.

See also, the FCC's Office of Engineering and Technology's (OET) report [86 pages in PDF] titled "Initial Evaluation of the Performance of Prototype TV-Band White Space Devices" and report [28 pages in PDF] titled "Direct-Pickup Interference Tests of Three Consumer Digital Cable Television Receivers Available in 2005".

CTIA Urges FCC to Adopt Auction/License Model for TV White Space

3/21. The CTIA submitted a comment [5 pages in PDF] on March 21, 2008, to the Federal Communications Commission (FCC) regarding unlicensed devices in unused television spectrum. It urges a licensed approach for much of the TV white space.

It suggested that the FCC "adopt an areawide licensing approach, subject to auction, for a majority of the TV band, while reserving a portion of the spectrum to continue the study of unlicensed uses."

It argued that "A licensed approach will put this promising spectrum to use within an access regime that provides for accountability. The licensed wireless community would welcome an opportunity to engage in meaningful dialogue with incumbent users to identify appropriate interference protection rules."

It also argued that the just closed Auction 73 "reaffirms the demonstrated and growing demand for additional licensed spectrum to facilitate provision of wireless broadband services. A licensed approach offers protections that incent investment necessary to deploy wide area systems with robust and reliable service, and the TV white space offers a promising opportunity for these new services."

Third, the CTIA wrote that "while the Commission must recognize legitimate concerns expressed by several parties regarding an interference protection regime based solely on novel engineering solutions, we recognize that unlicensed proponents have a strong interest in the TV white space. We therefore propose that the Commission preserve a portion of the white space pending future study, and adopt an unlicensed spectrum access policy for that spectrum only after thoroughly addressing the engineering issues involved."

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3/21. The International Intellectual Property Alliance (IIPA) submitted a comment [3 pages in PDF] to the Intellectual Property Office of Singapore (IPOS) in response to its request for public comments [6 pages in PDF] regarding several issues, including expanding the jurisdiction of the IPOS's Copyright Tribunal. The IIPA argued that the Copyright Tribunal "should not be granted unprecedented authority to intervene in private licensing disputes regarding fundamental exclusive rights such as the reproduction right and the making available right." The IIPA elaborated that "A government tribunal should be authorized to interfere with such voluntary licensing, and in effect to dictate contractual terms between private parties, only in narrowly defined circumstances, and only when market mechanisms have demonstrably failed to function. Any broader interference with voluntary licensing of exclusive rights also inevitably gives rise to questions about whether Singapore is in full compliance with its obligations under a wide range of international copyright agreements." The IIPA represents the Association of American Publishers (AAP), Business Software Alliance (BSA), Entertainment Software Association (ESA), Independent Film and Television Alliance (IFTA), Motion Picture Association of America (MPAA), National Music Publishers’ Association (NMPA), and the Recording Industry Association of America (RIAA).

3/21. The Department of the Treasury (DOT) published a notice in the Federal Register that announces, describes, recites, and sets the effective date (March 21, 2008) for, a new section of its Committee on Foreign Investment in the United States (CFIUS) rules. The new rule provides that "In circumstances when the Committee sends a report to the President requesting the President's decision upon completion or termination of an investigation, such report shall include information relevant to subparagraph (d)(4) of section 721, and shall present the Committee's recommendation. If the Committee is unable to reach a decision to present a single recommendation to the President, the Chairman shall submit a report of the Committee to the President setting forth the differing views and presenting the issues for decision." Last year the Congress passed, and President Bush signed, HR 556 [LOC | WW], the "Foreign Investment and National Security Act of 2007", Public Law No. 110-49, which amends Section 721 of the Defense Production Act of 1950 regarding CFIUS procedure. See, Federal Register, March 21, 2008, Vol. 73, No. 56, at Pages 15078-15079.

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