Last Week in Tech Policy #49: Preemption of Local Authority for Wireless Siting

(By Irena Stevens, PhD Candidate in the Interdisciplinary Telecom Program)

With the goal of promoting the deployment of next-generation wireless facilities, the FCC will vote on April 20th  to continue a rulemaking proposal to preempt local authority in the Right-of-Way (ROW). Wireless carriers are increasingly seeing utility poles in the ROW as an opportunity to expedite and diminish the cost of siting small cells, and say that local governments are creating unnecessary delays and charging excessive fees for pole attachments.

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Last Week in Tech Policy #40: Copyright Reform and the Copyright Office

(by Lindsey Knapton, Colorado Law 2L)

Copyright Week Logo[Editor’s note: This post is our contribution to Copyright Week, a series of actions and discussions supporting key principles that should guide copyright policy. Every day this week, various groups are taking on different elements of the law, and addressing what’s at stake.]

In the weeks leading up to President-elect Trump’s inauguration, little has been said about where he stands on copyright reform. For clues on copyright reform that may materialize in the coming months, some observers have turned to the House Judiciary Committee’s Reform of the U.S. Copyright Office Report, released on December 8, 2016, which outlines potential copyright policy priorities for the 115th Congress:

  1. Restructuring the Copyright Office as an administrative agency;
  2. Creating Copyright Office advisory committees;
  3. Upgrading information technology within the Copyright Office; and
  4. Creating a copyright small claims system.

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TLPC Releases White Paper on Intellectual Property Issues at the FCC

In this white paper, TLPC student attorneys Colter Donahue and J. Parker Ragland outline steps that the FCC can take to avoid having rulemakings and other policymaking initiatives delayed or negatively affected by intellectual property issues. In recent years, the Commission has faced several situations, including in the context of 9-1-1 services, telecommunications relay services, and set-top boxes, where intellectual property issues have arisen and affected proceedings. The white paper urges the Commission to develop adequate expertise in intellectual property law and to proactively anticipate and address IP issues to avoid these situations in the future.

Piloting Risk-Informed Assessments in the FCC Waiver Applications

Working with Silicon Flatirons Senior Fellow Pierre de Vries, TLPC student attorneys Andrew Manley and Jonathan Bair endorse prior recommendations that the Federal Communications Commission improve its waiver application process for radio operations through the adoption of Risk-Informed Interference Assessment (RIA). The TLPC and de Vries submitted a filing to the Commission suggesting how RIA might be adopted as a tool to assist the Commission in its decision making process. The filing elaborates on the RIA method, offers a checklist by which the Commission can request RIA from parties, and explores three test waivers for the application of RIA.

TLPC Files Followup on Petition For Rulemaking Re: Spectrum Interference Dispute Resolution

This semester, TLPC student attorneys Marcus Degen, Kolton Ray and Jeff Westling continued work on the clinic’s Petition for Rulemaking regarding spectrum interference dispute resolution. With the help of Silicon Flatirons Fellow Pierre de Vries, the student attorney’s analyzed, synthesized and replied to comments and concerns raised in the docket by various stakeholders regarding the Clinic’s proposed ALJ option: where issues arising from spectrum management could be resolved by the Commission’s Office of Administrative Law Judges.

The Clinic incorporated this research, in addition to the feedback from attorneys, technologists and policymakers, into a reply comment  filed with the FCC late last week. The reply rebuts negative assumptions and responds to key concerns; the key takeaway is that numerous parties agree that there is a problem with the current system of interference dispute resolution. With this filing, we urge the FCC to take the next step and initiate an NPRM to develop a timely, transparent, and fact-based mechanism to resolve spectrum interference disputes.

TLPC Submits Proposal to USPTO to Discourage Frivolous Claims in Trademark Opposition Proceedings

On Tuesday, May 12, 2015, three TLPC student attorneys submitted a White Paper to the U.S. Patent and Trademark Office (PTO) detailing a proposal to discourage frivolous claims in trademark opposition proceedings before the Trademark Trial and Appeal Board (TTAB). Current PTO rules can allow for entities known as “trademark bullies” to unfairly target new trademark applicants with aggressive litigation tactics that can cost, on average, around $80,000 to defend. For this project, the team partnered with our sister law clinics at American University and Suffolk University.

The team developed two proposals: a Second Look Review procedure and fee-shifting authority housed within the TTAB.

The Second Look Review procedure would allow trademark holders and other interested parties to request that the examining attorney who approved the trademark application take a “second look” at the application in light of evidence presented by the interested parties. If unsatisfied with the examining attorney’s determination, either party can then appeal directly to the TTAB.

The team’s second proposal is for Congress to implement a statutory fee-shifting mechanism for frivolous opposition suits before the TTAB. Current patent regulations allow for similar sanctions for parties who file frivolous patent oppositions in litigation, so the team proposes an analogous mechanism for trademark regulations. Because the PTO does not currently have the authority under the Lanham Act to incorporate fee-shifting procedures into TTAB proceedings, the team included an argument that the PTO or other parties might make to Congress to obtain an explicit grant of this authority.

The Second Look Review procedure, coupled with fee-shifting authority, could provide a balanced approach that eliminates incentives for companies or other entities to engage in frivolous and aggressive trademark opposition practices, while allowing incumbent trademark holders an easier avenue to defend potential threats to their trademarks. Furthermore, these proposals would help ensure that only legitimate oppositions from committed parties are admitted to the TTAB docket, which could increase overall efficiency within the PTO.

The student attorneys for this project were Austin Gaddis, Paul Garboczi, and Conor Stewartson.

The full text of the White Paper can be found here:

Discouraging Frivolous Claims in Trademark Opposition Proceedings: A Policy Proposal to the U.S. Patent and Trademark Office