Friday, June 28, 2013

July Open Meeting Agenda

The FCC released the tentative agenda for its Open Meeting on July 19.  The Commission will consider:

  • The 15th Annual Video Competition Report;
  • A Report and Order addressing mandatory minimum standards for the Speech-to-Speech Relay program and a Further Notice of Proposed Rulemaking seeking input on ways to improve the program; and
  • A Notice of Proposed Rulemaking to modernize the E-Rate Program for Schools and Libraries.

The Commission will also hear an update on the implementation of the Twenty-First Century Communications and Video Accessibility Act.

The meeting is scheduled to begin at 10:30 AM, and it will be broadcast live at www.FCC.gov/live.
 
Please feel free to contact us with any questions.

Thursday, June 27, 2013

FCC Acts on CPNI and H Block Rules

At today’s Open Commission Meeting, the FCC adopted a Declaratory Ruling regarding its customer proprietary network information (“CPNI”) rules and a Report and Order (“R&O”) that sets out licensing, service, and technical rules for the H Block. 

The CPNI Declaratory Ruling clarifies that the Commission’s CPNI rules apply to information that wireless carriers collect via their control over customers’ mobile devices, even when that information is only stored on the devices.  As long as carriers can access or control the information, they are responsible for safeguarding it.  The Ruling also states that the FCC will use its enforcement authority against carriers that violate the CPNI rules.  At the meeting, Commissioner Rosenworcel expressed concern that consumers do not understand how or when their information is accessed by carriers or by third parties, and she called on the FCC to work with the FTC to educate consumers.  Commissioner Pai emphasized that carriers are not subject to the FCC’s CPNI rules if they are not responsible for collecting the information, and he said that the Ruling does not hold carriers liable for their compliance with voluntary codes of conduct.  For an additional reference, the FCC News Release announcing the action is available here

At the meeting, the Commissioners also adopted a R&O that establishes rules for the H Block.  The rules enable 10 MHz of paired H Block spectrum to be auctioned through competitive bidding for mobile broadband use.  The spectrum will be auctioned on an Economic Area basis, and the R&O sets power and emissions limits and announces licensee performance requirements.  Commissioner Rosenworcel commented that the H Block revenue will generate significant funding for FirstNet, and she expressed satisfaction that H Block interference concerns have been resolved.  Commissioner Pai expressed hope that the Commission will auction the H Block by the end of 2013 or early in 2014, and he said that it should serve as a model for future auctions.  Chairwoman Clyburn was satisfied that the H Block will be used for mobile broadband while protecting operations in neighboring bands. 
 
Please feel free to contact us with any questions regarding today's meeting.

Thursday, June 20, 2013

House Hearing on Federal Spectrum Clearing Incentives Set for June 27

In light of the spectrum crunch that is still facing most U.S. mobile service providers and their customers, the House Energy and Commerce Committee's Subcommittee on Communications and Technology is continuing to push for the reallocation of Federal spectrum for commercial broadband use, especially in the 1755-1850 MHz band and the 1755-1780 MHz subband.

On Thursday, June 27, 2013, at 10:30 a.m. EST, the Subcommittee will hold a hearing entitled "Equipping Carriers and Agencies in the Wireless Era" to continue to explore "mutually beneficial methods to help agencies fulfill their missions while freeing spectrum to drive our country's prosperity."  Federal spectrum incentive legislation to require the Administration and Federal agencies to clear some of its spectrum for auction could be included in a legislative package that may need to be enacted by Congress in order to raise the debt ceiling later this year.  Of course, budget-constrained Federal departments and agencies may be willing cut a deal if giving up some spectrum is an alternative to larger spending cuts.

While an official witness list for the hearing has not yet been released, representatives from NTIA, the Department of Defense, CTIA and Qualcomm are likely to provide testimony to the Subcommittee members.  The live webcast of the hearing will be available here.

If you have any questions regarding this House hearing on potential legislation to incentivize efficient spectrum use and clearing by Federal agencies, or any other activity that could impact the telecommunications, media and technology sectors, please contact the TLP team.

Tuesday, June 11, 2013

Senate Hearing on Tom Wheeler's Nomination for FCC Chairman to be Held June 18

Today, the Senate Committee on Commerce, Science, and Transportation announced that it will hold its hearing on the nomination of Mr. Thomas Wheeler to be the Chairman of the Federal Communications Commission. The hearing is scheduled for Tuesday, June 18, 2013, at 2:30 p.m. EST and will be webcast live here. Mr. Wheeler's prepared testimony is available here.

President Obama announced his intention to nominate Mr. Wheeler back on May 1, 2013. It is expected that Mr. Wheeler's nomination will need to be paired with the yet-to-be-announced nominee for the vacant Republican seat in order to be confirmed on the Senate floor. However, it appears that Senate Democratic leaders and the White House would like the Senate to confirm Mr. Wheeler before the July 4th recess so that he may join the FCC just as the new five-year term associated with his seat commences on July 1, 2013.

If you have any questions how these changes at the Federal Communications Commission may impact the telecommunications, media and technology sectors, please contact the TLP team.


Wednesday, June 5, 2013

House to Examine Whether Congress Should Repeal, Reauthorize or Revise the Satellite Television Law

The House Energy and Commerce Committee's Subcommittee on Communications and Technology will hold a hearing on Wednesday, June 12, 2013, at 10:00 a.m. EST, entitled “The Satellite Television Law: Repeal, Reauthorize, or Revise?” 

The hearing is the continuation of a series of hearings in the House and the Senate to that have been held to consider the satellite television law (Satellite Television Extension and Localism Act of 2010 (STELA)), which will sunset on December 31, 2014. According to the Committee, the hearing "will examine whether the law, which Congress first passed in 1988, still serves an important function or if it is out of step with today’s video marketplace," and "members will discuss whether Congress should repeal the law, reauthorize it as is, or revise it, possibly even tackling non-satellite specific video issues arising from increased competition and evolving technology." The Majority Committee staff's background memorandum for the hearing is available here.

The following witnesses have been invited to appear at the hearing: Marci Burdick of Schurz Communications, Inc.; Geoffrey Manne of TechFreedom; Mike Palkovic of DIRECTV; Ben Pyne of Disney Media Networks; Hal Singer of Navigant Economics and Amy Tykeson of Bend Broadband.

The live webcast of the hearing will be available here.

If you have any questions regarding this hearing as well as any legislation or activity in Congress that could impact the telecommunications, media and technology sectors, please contact Vance Schuemann or any member of the TLP team.

Tuesday, June 4, 2013

White House Releases Its Legislative Priorities and Executive Actions to Address Patent Trolls

After months of legislative activity and consideration in Congress on how to best address harmful patent litigation abuses, the White House today released its suggested legislative priorities and executive actions on the issue. See the White House fact sheet below.

In addition, House Judiciary Committee Chairman Goodlatte (R-VA) released to the public a copy of the his discussion draft of patent troll legislation.

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LEGISLATIVE PRIORITIES & EXECUTIVE ACTIONS

Today the White House announced major steps to improve incentives for future innovation in high tech patents, a key driver of economic growth and good paying American jobs.  The White House issued five executive actions and seven legislative recommendations designed to protect innovators from frivolous litigation and ensure the highest-quality patents in our system.  Additionally, the National Economic Council and the Council of Economic Advisers released a report, Patent Assertion and U.S. Innovation, detailing the challenges posed and necessity for bold legislative action.

In 2011, the President signed the Leahy-Smith America Invents Act (AIA), a landmark piece of legislation designed to help make our patent system more efficient and reliable.  As technology evolves more rapidly than ever, we must ensure our patent system keeps pace.  As President Obama said in February, “our efforts at patent reform only went about halfway to where we need to go.  What we need to do is pull together additional stakeholders and see if we can build some additional consensus on smarter patent laws.”

The AIA put in place new mechanisms for post-grant review of patents and other reforms to boost patent quality.  Meanwhile, court decisions clarifying the scope of patentability and guidelines implementing these decisions diminish the opportunity to game the patent and litigation systems.  Nevertheless, innovators continue to face challenges from Patent Assertion Entities (PAEs), companies that, in the President’s words “don’t actually produce anything themselves,” and instead develop a business model “to essentially leverage and hijack somebody else’s idea and see if they can extort some money out of them.”  These entities are commonly known as “patent trolls.”  Likewise, the so-called “Smartphone Patent Wars” have ballooned in recent years and today, several major companies spend more on patent litigation and defensive acquisition than on research and development.

Stopping this drain on the American economy will require swift legislative action, and we are encouraged by the attention the issue is receiving in recent weeks.  We stand ready to work with Congress on these issues crucial to our economy, American jobs, and innovation.  While no single law or policy can address all these issues, much can and should be done to increase clarity and level the playing field for innovators.

LEGISLATIVE RECOMMENDATIONS

In that spirit, the Administration recommends that Congress pursue at least seven legislative measures that would have immediate effect on some major problems innovators face.  These measures would:

  1. Require patentees and applicants to disclose the “Real Party-in-Interest,” by requiring that any party sending demand letters, filing an infringement suit or seeking PTO review of a patent to file updated ownership information, and enabling the PTO or district courts to impose sanctions for non-compliance.
  2. Permit more discretion in awarding fees to prevailing parties in patent cases, providing district courts with more discretion to award attorney’s fees under 35 USC 285 as a sanction for abusive court filings (similar to the legal standard that applies in copyright infringement cases).
  3. Expand the PTO’s transitional program for covered business method patents to include a broader category of computer-enabled patents and permit a wider range of challengers to petition for review of issued patents before the Patent Trial and Appeals Board (PTAB).
  4. Protect off-the-shelf use by consumers and businesses by providing them with better legal protection against liability for a product being used off-the-shelf and solely for its intended use.  Also, stay judicial proceedings against such consumers when an infringement suit has also been brought against a vendor, retailer, or manufacturer.
  5. Change the ITC standard for obtaining an injunction to better align it with the traditional four-factor test in eBay Inc. v. MercExchange, to enhance consistency in the standards applied at the ITC and district courts.
  6. Use demand letter transparency to help curb abusive suits, incentivizing public filing of demand letters in a way that makes them accessible and searchable to the public.
  7. Ensure the ITC has adequate flexibility in hiring qualified Administrative Law Judges.

EXECUTIVE ACTIONS

Today the Administration is also announcing a number of steps it is taking to help bring about greater transparency to the patent system and level the playing field for innovators.  Those steps include:

  1. Making “Real Party-in-Interest” the New Default.  Patent trolls often set up shell companies to hide their activities and enable their abusive litigation and extraction of settlements.  This tactic prevents those facing litigation from knowing the full extent of the patents that their adversaries hold when negotiating settlements, or even knowing connections between multiple trolls.  Today, the PTO will begin a rulemaking process to require patent applicants and owners to regularly update ownership information when they are involved in proceedings before the PTO, specifically designating the “ultimate parent entity” in control of the patent or application.
  2. Tightening Functional Claiming.  The AIA made important improvements to the examination process and overall patent quality, but stakeholders remain concerned about patents with overly broad claims — particularly in the context of software.  The PTO will provide new targeted training to its examiners on scrutiny of functional claims and will, over the next six months develop strategies to improve claim clarity, such as by use of glossaries in patent specifications to assist examiners in the software field.
  3. Empowering Downstream Users.  Patent trolls are increasingly targeting Main Street retailers, consumers and other end-users of products containing patented technology — for instance, for using point-of-sale software or a particular business method.  End-users should not be subject to lawsuits for simply using a product as intended, and need an easier way to know their rights before entering into costly litigation or settlement.  Today, the PTO is announcing new education and outreach materials, including an accessible, plain-English web site offering answers to common questions by those facing demands from a possible troll.
  4. Expanding Dedicated Outreach and Study.  Challenges to U.S. innovation using tools available in the patent space are particularly dynamic, and require both dedicated attention and meaningful data.  Engagement with stakeholders — including patent holders, research institutions, consumer advocates, public interest groups, and the general public — is also an important part of our work moving forward.  Roundtables and workshops that the PTO, DOJ, and FTC have held in 2012 have offered invaluable input to this process.  Today, we are announcing an expansion of our outreach efforts, including six months of high-profile events across the country to develop new ideas and consensus around updates to patent policies and laws.  We are also announcing an expansion of the PTO Edison Scholars Program, which will bring distinguished academic experts to the PTO to develop — and make available to the public — more robust data and research on the issues bearing on abusive litigation.
  5. Strengthen Enforcement Process of Exclusion Orders. Once the U.S. International Trade Commission (ITC) finds a violation of Section 337 and issues an exclusion order barring the importation of infringing goods, Customs and Border Protection (CBP) and the ITC are responsible for determining whether imported articles fall within the scope of the exclusion order. Implementing these orders present unique challenges given these shared responsibilities and the complexity of making this determination, particularly in cases in which a technologically sophisticated product such as a smartphone has been successfully redesigned to not fall within the scope of the exclusion order. To address this concern, the U.S. Intellectual Property Enforcement Coordinator will launch an interagency review of existing procedures that CBP and the ITC use to evaluate the scope of exclusion orders and work to ensure the process and standards utilized during exclusion order enforcement activities are transparent, effective, and efficient.
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If you have any questions regarding this Executive Branch initiative as well as any other legislation or activity in Congress that could impact the telecommunications, media and technology sectors, please contact Vance Schuemann or any member of the TLP team.