In the Know -- May 12, 2006

a bimonthly Public Knowledge update

Telecom Bills On Hold

When the House Energy and Commerce Committee passed its version of the Telecom Act at the end of April, the plan was to bring it to the House floor as quickly as possible for a vote within a week. Some Hill observers were looking at May 3 or 4, a week after the April 26 markup, as a floor date.

We suspect, in part, that the unusually quick action was set up because the forces opposing the bill, including PK and others favoring Net Neutrality, were gaining momentum.

But all of that planning came to a screeching halt, thanks in large part to the House Judiciary Committee. Understand that there has been a tension over telecom issues between House Commerce and House Judiciary going back decades. Commerce has always had primary jurisdiction over technology and over the Federal Communications Commission (FCC), but Judiciary is alert to the antitrust and anticompetitive aspects of telecom policy.

So it was that on May 5, House Judiciary Committee Chairman F. James Sensenbrenner Jr. (R-Wis.) sent a 35-page letter to House Speaker Dennis Hastert (R-Ill.) asking that Judiciary be given a chance to look over the telecom bill (H.R. 5252). Sensenbrenner’s letter helps make the case that the Commerce Committee’s legislation is seriously flawed, as PK and others have repeatedly said. His stunning conclusion: “H.R. 5252 will further expand the market power of the remaining Bell companies and the ability of broadband providers to leverage market control of their broadband networks.” We couldn’t have said it better. Sensenbrenner also said that the Net Neutrality principles deal specifically with the type of “potential abuse of market power” over which Judiciary has jurisdiction because it deals with antitrust law.

For good measure, Sensenbrenner noted the FCC took itself out of any jurisdiction over the broadband market when the Commission took cable modem and Digital Subscriber Line (DSL) services out from under “common carrier” regulation.

The next move is up to the House leadership. We hear they are checking to see how much support Sensenbrenner really has, and to see whether the telecom bill could go the floor without a Judiciary referral.

Other NN Notes: Sens. Olympia Snowe (R-Me.) and Byron Dorgan (D-N.D.) have yet to introduce their eagerly awaited Net Neutrality bill. In the same vein, Reps. Rick Boucher (D-Va.) and Zoe Lofgren (D-Cal.), both on Judiciary, are said to be working on some Net Neutrality language of their own.

In our last issue, we wrote about an ill-fated amendment offered at the House Commerce Committee markup by Rep. Charlie Gonzalez (D-Tex.), which would require the FCC to study the pricing practices of Internet search engines and e-commerce companies. The amendment was defeated. At the time, Gonzalez said he became interested in the topic after reading an article in a Southwestern Airlines magazine about search engine business arrangements. We read the article. There is nothing in the article that discusses the issues Gonzalez said it did. The story, “Do You Still Yahoo?” is mostly a feel-good piece about how Yahoo! is still doing well despite having been overshadowed by Google. The story mentions “paid search advertising,” but that’s it. Even if there is some substantive reason to look into search engines, this article doesn’t provide it. What it did provide was a cover, albeit a flimsy one, for an argument to float around Capitol Hill to hurt opponents of Net Neutrality. Now, we hear, Senate staff are starting to question whether they should look into search engines as well. Never mind the search industry is competitive and dynamic, unlike the broadband market.

The Government Accountability Office (GAO) issued a new report on broadband deployment. They find it extensive but spotty in rural states.

You can read the Sensenbrenner letter here:
http://static.publicknowledge.org/pdf/hr5252-jud-req-20060501.pdf

The GAO report is here:
http://www.gao.gov/new.items/d06426.pdf

WIPO Splits Broadcasting Treaty

A committee of the World Intellectual Property Organization (WIPO), which is considering a new treaty to grant additional rights to broadcasters, decided last week to put on a separate track the highly controversial issue of including webcasters in the treaty.

Webcasters had pushed to get the same 50-year intellectual property rights that the treaty proposes to give to broadcasters. The WIPO proposals would create a new intellectual property right, separate from copyright, but similar, because it would give ownership to broadcasters and, potentially to webcasters, of any material that was broadcast or webcast. Mind you, this right would be granted regardless of whether the broadcaster or webcaster actually had a copyright on the underlying program. They could be given this new right even if the material broadcast, or webcast, was in the public domain.

WIPO’s Standing Committee on Copyright and related Rights decided at the end of the meeting, on May 5, to draw up a new draft of a treaty by August 1, which could then be voted on shortly thereafter. At that point, it would be put on track for full consideration next year. No one is quite sure what will happen to the webcast part. It could go forward separately, be shuffled aside indefinitely, or be rejoined with the broadcasting part. A majority of countries opposed the webcasting rights, but the U.S. favored them.

We think the Patent and Trademark Office should ask for public comment on the treaty and that Congress should hold hearings on the treaty before the it is approved by WIPO. This treaty has been negotiated by the U.S. without any transparency and without any analysis of how it would affect copyright holders, consumers, technology companies and U.S. law.

Here’s WIPO’s news release on the end of the meeting:
http://www.wipo.int/edocs/prdocs/en/2006/wipo_upd_2006_274.html

PK’s concerns about the treaty are here:
http://www.publicknowledge.org/issues/wipobroadcasters

And don’t forget to check our policy blog on this issue.

Open Access Bill Introduced

Sens. John Cornyn (R-Tex.) and Joe Lieberman (D-Conn.) have introduced their long-awaited legislation (S. 2695) to provide more public access to government-funded research.

The bill would expand the limited, voluntary program at the National Institutes of Health (NIH) which simply requests that researchers doing work funded by taxpayers post their work online. The bill would strengthen and expand the policy pioneered by the NIH to provide free online access to publicly-funded research.

Under the bill, each federal agency with a research budget of $100 million or more would require the researchers it funds — totally or partially by the agency, whether external or agency employee — to submit an electronic copy of the final manuscript that has been accepted for publication in a peer-reviewed journal. Agencies would have to provide free online access to these manuscripts no later than six months after their publication in peer-reviewed journals.

PK endorsed the bill, with Gigi saying that the legislation sent NIH the messages that “taxpayers deserve access to the non-classified research they fund with their taxes, and second, that useful research is even more useful when it’s shared with everyone who can make use of it.” Peter Suber, our Open Access project director, called the bill “the most comprehensive and beneficial step to date” in enhancing the current inadequate program of making public information available online.

The text of the bill is here:
http://static.publicknowledge.org/pdf/s2695-109.pdf

A Washington Post story on the introduction is here:
http://www.washingtonpost.com/wp-dyn/content/article/2006/05/02/AR2006050201506.html

Please support PK: We’re in the middle of the year’s biggest issue — the fight to protect the free and open Internet we’ve all come to appreciate. Going up against the well-funded telephone and cable companies isn’t easy as they try to extend their control over what had been an open Internet for all. If that’s not enough, we’ve got to defend our ground on the broadcast flag against the continuing assaults from the content industry who are pressing not only for the TV version, but also for content controls on digital and satellite radio and for restricting recording with analog devices. Please help. You can become a member here: http://www.publicknowledge.org/membership. Or simply donate: http://www.publicknowledge.org/donate. In either case, we thank you for your support.

Briefly:

As we mentioned in the last issue, Gigi was given a prestigious Pioneer award by the Electronic Frontier Foundation. You can see the video of her accepting the award here:
http://videobomb.com/posts/show/2293

Confused about what Net Neutrality really means? Then consult the all-knowing Ninja at http://www.askaninja.com. He’ll set you right.