13-06-11 CTIA Submission on Public Interest

7/28/2019 13-06-11 CTIA Submission on Public Interest

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UNITED STATESINTERNATIONAL TRADE COMMISSIONWASHINGTON, D.C.

In the Matter ofCERTAIN ELECTRONIC DIGITAL . .MEDIADEVICESANDCOMPONENTS Isg" N' 337'TA'796THEREOF

SUBMISSION OF CTIATHE WIRELESS ASSOCIATIONREGARDINGTHE PUBLIC INTEREST

Michael F. AltschulSenior Vice President and General CounselCTIATheWireless Association1400 16th Street, NW Suite 600Washington, DC 20036June 11,2013


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CTIAThe Wireless Association (CTIA)] submits these comments in response tothe Commissions request for comments from the public on the issues of remedy and the public

interest, In the Matter of Certain Electronic Digital Media Devices and Components Thereof,Investigation No. 33'7TA-796,Notice of Commission Determination To Review a Remand InitialDetermination (May 28, 2013).

Tomeet the demand for broadband wireless communications services, the wirelessindustry is rapidly deploying new broadband technology that requires a wide distribution of

supporting products to reach the market and improve the lives of consumers. Everyone benefitsfrom the nationwide growth of competitive wireless services. Consumers use wireless servicesfor enhanced productivity, for greater personal convenience, and for a wide array ofentertaimnent and leisure options. The availability of ubiquitous, seamless wireless coveragealso protects public safety by ensuring quick, reliable access to emergency services. Moreover,many segments of the population depend onmobile devices for their primary source ofconnectivity, heightening the need for maintaining consumer choices and the fastest broadbanddevices at all price points. As CTIA urged the Commission in its October 9, 2012 commentsfiled in Investigation Number MISC-038, if the Commission issues an exclusion order and acease and desist order in this investigation, it should provide an appropriate transition period tohelp ameliorate the severe burden on consumers and third parties that can result from such anorder. Broadband wireless infrastructure is a critical U.S. industry to be protected. President

1CTIATheWirelessAssociationis not a typographicalerror. Cityof/lrlfngton v.FCC, 569 U.S._, _(2013) (slip op. at 3, n.l). More properly, CTIA is an orphan init ialism. CTIA was founded in I984 as theCellular Telecommunications Industry Association. In 2000, CTIAmerged with the Wireless Data Forum andbecame the Cellular Telecommunications & Internet Association. In 2004, we changed our name to CTIA-TheWireless Association. This name better represents CTlAs diverse membership of service providers,manufacturers, wireless data and Internet companies, as well as other contributors to the wireless universe.More information about CTIA is available on the Associations website at http://WWW.ctia.org/aboutCTIA/.-1


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Obama has stated, high-speed wireless service, thats the next train station; its the next offramp. Its how well spark new innovation, new investment, [and] new jobs.2 The Commission

should use its public interest authority to minimize harm to U.S. consumers, competitiveconditions in the economy, and the public health and welfare (19 U.S.C. 1337(d)(1)), bycarefully tailoring its remedial orders or declining to enter any remedial orders at all.3

BACKGROUNDThe wireless industry is deploying competitive nationwide next-generation broadband

wireless networks based on LTE technology that offer superior capabilities to existing broadbandnetworks. In addition to spending tens of billions of dollars on spectrum, wireless carriers haveinvested well over $120 billion intheir networks over the past five years and over $30 billion in2012 alone.4 Service providers have greatly expanded their 4G networks, making the U.S. theworld leader with more than 50% of the worlds 4G subscribers.5 Deloitte estimated thatadditional 4G network investments between 2012 and 2016 could reach $53 billion, contributingup to $151 billion in gross domestic product growth, and creating up to 771,000 jobs.6 Standard& Poors stated that to take full advantage of their network upgrades, carriers will continue to

2President Barack Obama, Remarks by the President on theNational WirelessInitiative in Marquette,Michigan (Feb. 10,201 1), available at http://www.whitehouse.gov/the-press-office/201 1/02/1O/remarks-presidentnational-wireless-initiative-marquette-michigarl.3The CTIA takes no position on the underlying merits of this investigation. Moreover, CTIAs argumentswould have equal force if the Commission were to consider remedial orders against any 4G-capable smartphones.

4See CTIA, Semi-Annual Wireless Industry Survey (Year End 2012), available athttp://files.ctia.org/pdi7CTIA_Survey_YE_2012_Graphics-FINAL.pdfi CTIA, 50 WirelessQuick Facts,http://www.ctia.org/advocacy/research/index.cfinlaidl10377.5As of March 2013, the U.S. has 52% of the worlds LTE subscribers according to the Inforrna Telecoms &Media Groups World Cellular Information Service (WCIS) database.6Deloitte, TheImpact of4G Technology on Commercial Interactions, Economic Growth, and U.S.Competitiveness, at 7 (Aug. 2011),http://www.deloitte.com/assets/Dcom

UnitedStates/Local%2OAssets/Documents/TMT_us_tmt/us_tmt_impactof4g_edited060612.pdf.-2


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introduce a wide variety of 4G handsets, aircards, and hotspot devices.7 As detailed below,carrier investments in these networks have been enormous.

Verizon Wireless Cellco Partnership d/b/a Verizon Wireless (Verizon Wireless) hasinvested enormous effort and resources into building and marketing its 4G Long Term Evolution(LTE) network, which covers more than 90 percent of the U.S. populations Since it wasfonned, Verizon Wireless has invested more than $80 billion $6 billion on average every yearin its networks and services.9 In 2008, Verizon Wireless paid $9.36 billion for a group of

wireless spectrum licenses for use in launching its LTE network.l In 2010, Verizon Wirelesslaunched its LTE network in 38major metropolitan areas covering more than ll0 millionpeople." At this point in time, Verizon Wireless has substantially completed its 4G LTEbuildout with coverage in almost 500 markets. As a result of Verizon Wirelesss extensiveinvestments, customers using the LTE network have access to expected download speeds that aremore than ten times the speed of Verizon Wirelesss 3G network.

The success of Verizon Wirelesss LTEnetwork depends on consumers purchasing andusing smartphones and devices capable of interacting with Verizon Wirelesss LTEinfrastructure. Verizon Wirelesss LTE network can interact only with devices specifically

7J. Moorman, Standard & Poors Industry Surveys, Telecommunications: Wireless, at 15, 16 (Jul. 21, 2011).8 Verizon Wireless, News Center: LTE Information Center,http1//news.verizonwireless.com/LTE/Overview.html (Verizon Wireless is available to 287 million people in 497markets across the country).9 Verizon Wireless, About VerizonWireless: Our Technology: Network,http://aboutus.vzw.com/bestnetwork/network_facts.htrnl.1See Verizon Wireless News Release, Verizon Wireless Says Spectrum Additions fiom FCC sAuction 73 WillFurther Company's Broadband Strategy (Apr.4, 2008), httpz//news.vzw.com/news/2008/04/pr2008-04-04.html.H See Verizon Wireless News Release, Happy Ist Anniversary, Verizon Wireless 4G LTE!(Dec. 5, 201 l),http://news.verizonwireless.com/news/201 l/12/pr201 1-12-05a.html.12See Verizon Wireless, About Verizon Wireless: Our Technology: Network ,

http://aboutus.vzw.com/bestnetwork/network_facts.html._ 3 _


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configured to work with that network. And Verizon Wireless has been successful in selling anddistributing such devices. By the end of the first quarter of 2013, Verizon Wireless providedservice to 26.3 million LTE devices, having activated 5.9 million LTE devices in the first quarteralone.

AT&T T&T has spent many billions of dollars developing its next-generationnetwork. In November 2012, AT&T announced plans to invest $8 billion in wireless networkinitiatives over three years, including LTE deployment. AT&Ts 4G network covers more than292 million people, and AT&T is currently rolling out its LTE network across the country.AT&T offers 4G LTE in 261 markets covering more than 200 million people, and expects toreach 300 million people with its 4G LTE network by the end of 2014.16

AT&Ts broadband wireless services require customers to use compatible devices. In thefirst quarter of 2013, AT&T sold six million smartphones.

Sprint Sprintas spent billions of dollars on its next-generation infrastructure. InDecember 2010, Sprint announced plans to enhance its network that was expected to require a $4

'3See Fran Shammo (Chief Financial Officer), Verizon, lst Quarter 2013 Earnings Results,at 8 (Apr. 18,2013), available at http://www22.veriz0n.com/investor/D0cServ1et?doc=vz_2013_q1_presentation.pd'4AT&T News Release, AT&TToInvest $14 Billion ToSignificantly Expand Wirelessand WirelineBroadband

Networks,Support Future IP Data Growth andNewServices (Nov. 7, 2012), http://www.att.com/gen/pressroom?pid=23506&cdvn=news&newsa1tic1eid=35661 .15See AT&T News Release, AT&T4G LTE Available in Blytheville (June 5, 2013),http://www.att.com/gen/press-roorn?pid=24329&cdvn=news&newsartic1eid=36565&mapc0de=consumer|mk-attwireless-networks.'6AT&T, AT&T: The Nation sFastest 4G LTE Network,http://www.att.com/Common/about_us/pdf/4g_ev01ution_infographicpdf.'7AT&T, AT&Tlnvest0r Update: IQI3 Earnings Conference Call, at 7 (Apr. 23, 2013),http://www.at1.com/Investor/Eamings/1q13/s1ide_c_1q13.pdfi18See Sprint Nextel Corp, Quarterly Report (Form 10-Q) ( filed May 6, 2013),

http://www.sec.gov/Archives/edgar/data/101830/000010183013000020/sp1intq1201310-q.htm.-4


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billion to $5 billion investment. The pending acquisition of 70 percent of Sprint by SoftBankincludes $8 billion of new capital that Sprint can use to increase its network investmentzo Sprint

has launched 4G LTE service in 88 cities and plans to expand the service to 170 additionalcities.Like the other carriers, Sprint depends on consumers purchasing and using smartphones

and devices capable of interacting with Sprints network. Sprints customer base for high-speeddevices has grown rapidly over the past year. In the first quarter of 2013 alone, Sprint sold fivemillion smartphones.22

T-Mobile T-Mobile has invested enormous effort and resources into building andmarketing its next-generation network, including a $4 billion commitment to launch 4G LTEnationwide. T-Mobile currently serves 228 million people with its 4G network, and continuesto expand the availability of 4G LTE, which is expected to cover 200 million more people by theend of 2013.24 T-Mobiles recently completed acquisition of MetroPCS provides a strongspectrum position to provide 4G LTE in approximately 90% of the top 25 metro areas in 2014

'9Sprint News Release, Sprint Announces Network VisionA Cutting-Edge Network Evolution Plan withPartners Alcatel-Lucent, Ericsson and Samsung (Dec. 6, 2010), http://newsroom.sprint.com/news-releases/sprintannounces-network-vision-network-evolution-plan.htm.2Sprint News Release, SofiBank ToAcquire 70% Stake in Sprint (Oct. 15, 2012),http://newsroom.sprint.com/news-releases/sofibank-to-acquire70-stake-in-sprint.htm.2Sprint, IQI3 Earnings Conference Call, at 13(Apr. 24, 2013),http1//investors.sprint.com/Cache/1500048800.PDF?Y=&O=PDF&D=&fid=1500048800&T=&iid:40572l9.22 Id. at 6.23T-Mobile, T-Mobile /tdvancing the Network, http://media.corporateir.net/media_files/IROL/25/251624/factShects/T-Mobile%20Advancing%20the%20Netw0rk%20Fact%20Sheet.pdf.24T-Mobile News Release, T-Mobile and MetroPCS Combination Complete WirelessRevolution JustBeginning (May 1,2013), htt'p://newsroom.t

mobile.com/phoenix.zhtml?c=251624&p=RssLanding_pf&cat=news&id=l813495._5_


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and beyond.25 The success of T-Mobiles 4G network is dependent on consumers purchasingand using 4G smartphones capable of taking advantage of T-Mobiles infrastructure.

Other Carriers Manyother wireless providers are involved in the deployment of highspeed networks in markets across the United States. For example, Verizon Wireless is leasing its700 MHZC-block spectrum to 20 rural operators through its LTE in Rural America program.As of September 2012, this program covered 2.7 million people in rural communities in 14states, across more than 144,000 square miles. Verizon Wireless has also signed agreements tosell its lower 700 MHZ spectrum to five rural or regional carriers and one minority-ov\med firm.28

ARGUMENTCTIAwelcomes the Commissions efforts to address the potentially severe impact of

exclusion orders on consumers and third parties. Several factors about the U.S. wireless industrymake it important for the Commission to avoid issuing a remedy to exclude smartphones,particularly those that run on 4G networks.

First, because smartphones are essential end-points to the carriers network, limiting theavailability of smartphones has a direct impact on the carriers abilities to meet consumers needsand provide customers with the benefits that flow from the enormous capital investment that they

Id. .26Robin Nicol, Verizon Wireless Completes Spectrum Sale to Three Rural Companies (Feb. l5, 2013),http://news.verizonwireless.com/news/20l3/02/verizon-wireless-spectrum-sales-comp]etion.html.27See Sharon Oddy, LTE in Rural America 2nd Annual Conference (Sept. 18, 2012),hnp://news.verizonwireless.com/news/20l2/09/4G-LTE-rural-america-conference.html; Phil Goldstein, VerizonExpects 6 Rural LTECarrier Partners ToLaunch by Year-End,Fiercewireless (Sept. l8, 2012),http://www.fiercewireless.com/story/verizon-expects-6-rural-]te-carrier-partners-launch-year-end/2012-09l8#ixzz2VpBhG3Z4 (citing Verizons Executive Director of StrategicAlliances Philip Junker).28Robin Nicol, Verizon Wireless Completes Spectrum Sale to Three Rural Companies (Feb. l5, 2013),

http://news.verizonwireless.com/news/20 l3/02/verizon-wireless-spectrum-sales-completion.html.-5


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are making in their networks. Loss of devices hurts all consumers, not just those who wish topurchase the excluded smartphone.

Second, the Obama Administration has made expansion of wireless broadbandinfrastructure a key policy goal to help drive U.S. innovation and job growth. Smartphones arethe principal devices that U.S. customers use to access wireless broadband technology.I. U.S. Consumers, Competitive Conditions in the Economy, and the Public Healthand Welfare Would BeAdversely Affected by a Remedial Order

The smartphones that may be excluded in this investigation are manufactured bySamstmg, which is the largest manufacturer of smartphones that run on the Android platform andthe second largest provider of smartphones in the U.S. behindApple. Samsung accounts for 22percent of smartphone subscribers in the U.S., more than the next two manufacturerscombined. The Android platfonn currently accounts for 52 percent of U.S. smartphones.Apples platform accounts for 39 percent of U.S. sma1tphones.3

The devices at issue in this investigation include 4G devices that have been customized towork on particular carriers networks. It takes considerable time and effort to develop any 4Gproduct normally, much longer than a year. Any requirement that Samsung redesign itsproducts in light of a remedial order may cause substantial delays before the redesigned 4Gdevices are available to consumers. Such redesigned devices would need to be tested, includingchecking their performance, operation, and compatibility with carriers networks andspecifications. Depending on the carrier and the device, companies would need to pull or re-tool

29As of April 2013, HTC and Motorola accounted for 8.9 percent and 8.3 percent, respectively. comScorePress Release, comScore Reports April 2013 U.S.Smartphone Subscriber Market Share (June 4, 2013),http://www.comsc0re.com/Insights/Press_Releases/2013/6/comScore_Reports_April_2013_U.S._Smartphone_Subscriber_Market_Share (comScore MobiLens data for the three-month average ending March 2013).

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marketing campaigns that are already running or about to nm. Accordingly, the harm imposedby a remedial order would fall not just, or evenmainly, on Samsung. Rather, customers wouldsee their choices for access to 4G technology restricted, and the carriers would be limited in theirability to meet consumers demand for wireless broadband services.

Because 4G devices are in an early stage of adoption, any decrease in the number ofavailable devices may delay additional consumers from adopting the technology. SeeAtariCorp. v.Sega 0fAm., Inc., 869 F. Supp. 783, 790-91 (N.D. Cal. 1994) (harm to a technology isincreased when the technology is new).3' Absent an exclusion order impeding access to 4Gdevices, analysts predict that consumers will replace 50%of their smartphones and 30%of theirtablets within two years. A remedy that limited the availabilityof 4G devices in the marketcould substantially reduce the number of customers who could orwould purchase those devices.

The Commission has already recognized that the public may be uniquely harmed by a

remedial order on smartphones. In Certain Personal Data and Mobile CommunicationsDevicesand RelatedSoftware, the Commission recognized the importance of competitive conditionsin wireless telecommunications services in the United States generally. Specifically, theCommission detennined that an exclusion order on HTC smartphones would hurt the wirelesscarrier that sold the devices. Thus, the Commission delayed an exclusion order for four

3' The economic literature on technology adoption emphasizes the risks during the early phase of newtechnologies. Robert J. Kauffinan, Angsana A. Techatassanasoontom, Understanding Early Diflusion ofDigitalWirelessPhones, 33 Telecomm. Poly 432, 445 (2009); Everett M. Rogers, Diffusion of Innovations 288-90 (5th ed.2003); Max Stul Oppenheimer, The Timeand Place for "Technology-Shifting" Rights, l4 Marq. lntell. Prop. L.Rev. 269, 303 (2010).32See J. Covello et al., Goldman Sachs Equity Research, LTE:Fueling the Mobile Super-Cycle; ImplicationsAcross TMT,at 38 (Feb. 9, 201 1).33Certain Personal Data and Mobile Communications Devices and Related Software, USITC Inv. No. 337-TA7l0, Comm. Op. at 80-81 (Dec. 29,2011).See id.

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months, so that the carrier could replace its infringing smartphones with available substitutes.35And in a separate opinion, Commissioner Pinkert recognized that the effect of an exclusion orderon smartphones could have detrimental effects on consumer far beyond simply eliminating thechoice between two smartphones:

In other words, the availability of substitutes does not necessarily mean theconsumers desire for quality and variety can be satisfied in the absence of theinfringing devices. This observation is particularly apposite in a rapidlychanging, technologically driven, market like todays smartphone market.Excluding devices from such a market could be significantly detrimental toeconomic welfare, regardless of whether substitutes are avai1able.36Thus, the complainants own sales of smartphones would not negate the harm to wirelesscarriers from a substantial reduction in the availability of compatible devices, which in tumcould lead to a reduction in consumer adoption of wireless broadband services and theeconomic benefits associated with the availability of these services.II. The Commission Should GiveWeight to the Executive and Congressional PolicyDeterminations To Promote WirelessBroadband Infrastructure

Both the Executive Branch and Congress have determined that expansion of high-speedwireless service is critical to Americas ability to compete globally.

In the Presidents January 2011 State of the Union address, he said:Within the next five years, well make it possible for businesses to deploy thenext generation of high-speed wireless coverage to 98 percent of all Americans.This isnt just about -- (applause) -- this isnt about faster Intemet or fewerdropped calls. Its about comiecting every part of America to the digital age. Itsabout a rural community in Iowa or Alabama where farmers and small businessowners will be able to sell their products all over the world. Its about afirefighter who can download the design of a buming building onto a handheld

35See id.as Certain Personal Data and Mobile Communications Devices and Related Software, USITC lnv. No. 337-TA7l0, Additional Views of Commissioner Pinkert on Remedy and the Public Interest at 2 (Dec. 29, 201 l).-9


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device; a student who can take classes with a digital textbook; or a patient whocanhave face-to-face video chats with her doctor.As part of the U.S. governments plan to introduce wireless broadband, the President

announced a $5 billion investment to support build out in rural areas including locationscurrently underserved by other forms of broadband networks. As the President previouslyexplained:

Few technological developments hold asmuch potential to enhanceAmerica's economic competitiveness, createjobs, and improve the quality of ourlives as wireless high-speed access to the Intemet. Imovative new mobiletechnologies hold the promise for a virtuous cycle -- millions of consumers gainfaster access to more services at less cost, spurring innovation, and then a newround of consumers benefit from new services. The wireless revolution hasalready begun with millions of Americans taking advantage of wireless access tothe Intemet.The federal agency charged with promoting telecommunications infrastructure, the

Federal Communications Commission, has recognized in itsNational Broadband Plan that[w]ireless broadband is poised to become a key platform for innovation in the U.S. over thenext decade.40 The FCC filed an amicus brief with this Commission waming of significantharm to U.S. consumers in one of the prior instances when wireless broadband devices werethreatened by an exclusion order.

37President Barack Obama, State ofthe Union Address (Jan.25, 201 1), available athttp://www.whitehouse.gov/the-press-office/201 1/0l/25/remarks-president-state-union-address.38White House Press Release, President Obama Details Plan to Winthe Future through Expanded WirelessAccess(Feb. 10,2011), available at http://www.whitehouse.gov/the-press-office/20l 1/02/10/president-obamadetails-plan-win-future-through-expanded-wireless-access.39White House Press Release, Presidential Memorandum: Unleashing the WirelessBroadband Revolution(June 28, 2010), http://www.whitehouse.gov/the-press-office/presidential-memorandum-unleashing-wire]essbroadband-revolution.OFCC, National Broadband Plan: Connecting America, Chap. 5: Spectrum, available athttp://www.broadband.gov/plan/5-spectrum/.4Comments of the FCCat ll, Baseband Processor Chips and Chipsets, USITC Inv. No. 337-TA-543 (filed

Jan. 18,2007). -19


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TheAdministration has also emphasized that wireless broadband and associated softwareapplicationsprovide hundreds of thousandsof U.S.jobs. Former Director of theNationalEconomic Council, Lawrence Summers, explained:

[T]he substantial capital expenditures associated with developing 4G networkswill generate significant job creation. Each dollar invested in wirelessdeployment is estimated to result in as much as $7 to $10 higher GDP. Withmajor American wireless firms spending $10 billion and rising on these efforts,the benefits forjob creation and job improvement are likely to be substantial.Even a small change in wireless network investment could significantly and negatively affectemployment, because a large portion of investment is devoted to increased expenditures onsalaries. By some estimates, even a 2% decline in capital expenditures on wireless broadbandwould result in a loss of 31,382jobs. A 10% reduction in expenditures would eliminate 156,911jobs.

Congress has broadly endorsed the Administrations goals by enacting 47 U.S.C. 1305(2009). Section 1305 establishes a national broadband expansion program that provide[s]improved access to broadband service to consumers residing in L1I1ClIS6I'VC(lreas of the UnitedStates and stimulate[s] the demand for broadband, economic growth, and job creation. Id 1305(b)(2), (5).

42See Robert D. Atkinson, Daniel Castro & Stephen J. Ezell, The Info. Tech. & Innovation Found. , TheDigital Road to Recovery: A Stimulus Plan ToCreate Jobs, Boost Productivity and RevitalizeAmerica, at l-2, 5(Jan. 2009), available at http://www.itif.org/files/roadtorecovery.pdf.

43 Lawrence H. Summers, Technological Opportunities, Job Creation, and Economic Growth, Remarks at theNew America Foundation on the Presidents Spectrum Initiative (June 28, 2010), available athttp://www.whitehouse.gov/administration/eop/nec/speeches/technological-opportunities-j ob-creation-economicgrowth.44 [B]ecause broadband investments offer such a robust employment effects per investment.... even marginaldeclines in investments could have substantial effects on employment. Robert D. Atkinson, The Info. Tech. &Innovation Found., The Economic Impacts ofDeclining Investment inBroadband, at 2 (Oct. 2009), available athttp://www.itif.org/files/l0.20.09.Broadband_lnvestment_and_Jobs.pdfi"5 See id.

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General administrative law requires that one agency, in detennining the public interest,must take into account related policies adopted by other agencies throughout the FederalGovernment. See Community Televisionof S. Cal. v.Gottfiied, 459 U.S. 498, 513, 516-17(1983) (Wherean agency has a statutory duty to assess the public interest in implementing aparticular regulatory scheme, the agency must give at least some consideration of other federalstatutes that are pertinent to its administrative decision; [n]o agency entrusted withdeterminations of public convenience and necessity is an island. It fits within a national systemof regulatory control of industry? (internal citations omitted)); American Ins. Assoc. v.Garamendi, 539 U.S. 396, 423 n.l3 (2003) (executive officials must faithfully represent[] thePresidents chosen policy).

Section 337(b)(2) specifically requires the Commission to consult with, and seek adviceand information from the Executive Branch [d]uring the course of each investigation. 19U.S.C. l337(b)(2). The legislative history of the Trade Act of 1974, which added the publicinterest determination to section 337, confirms that Congress expected the Commission toconsider related policies of the other federal agencies when making its public interestdetennination:

The Committee believes that the public health and welfare and the assurance ofcompetitive conditions in the United States economy must be the overridingconsiderations in the administration of this statute. Therefore, under theCommittee bill, the Commission must examine (in consultation with the otherFederal agencies) the effect of issuing an exclusion order or a cease and desistorder on the public health and welfare before such order is issued.

S. Rep. No. 93-1298, at 197, 93rd Cong., 2d Sess. (1974) (Senate Report) (emphasis added).Thus, the Commissions regulations require the Commission, specifically with respect toevaluating the public interest, to [c]onsult with and seek advice and information from the U.S.Department of Health and Human Services, the U.S. Department of Justice, the Federal Trade_ 12 _


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Commission, the U.S. Customs Service, and such other departments and agencies as it considersappropriate... 19C.F.R. 210.50(a)(2). These various government agencies will often havesignificant information, as well as sound advice, about such impact. Senate Report at 195.

The Commission's public interest determination is very likely the best stage at which thePresidents domestic policy statements can be given consideration. The Office of the UnitedStates Trade Representative, to which the President has assigned his functions under Section337(j), see Memorandum, Assignment of Certain Functions Under Section 337 of the Tarifi"Actof1930, 70 Fed. Reg. 43251 (issued July 26, 2005), is reluctant to review domestic policyissues which could have been presented to the Commission but were not. Notice, Format forFuture Requestsfor Public CommentRegarding Determinations, 46 Fed. Reg. 46857-01 (Sept.22, 1981).

Accordingly, this Commission has given weight to theAdministrations policy goalswhen deciding to withhold a remedy in previous investigations. For example, in CertainAutomatic Crankpin Grinders, the accused products were fuel-efficient automotive parts.Congress had recently passed the Energy Policy and Conservation Act, in which the automobileindustry was required to improve the fuel efficiency of its automobiles. Commn Op. at 19,USITC Inv.No. 337-TA-60 (1979). The Commission held that [i]n view of the fact thatCongress and the President have also clearly established a policy requiring automotivecompanies to increase the fuel economy of the automobiles they produce . . . it is not in thepublic interest to provide a remedy in this case. Id. at 20.

Likewise in Certain Inclined-F ield Acceleration Tubes and Components Thereoj,theaccused products were used in nuclear structure research. In considering the public interest, theCommission gave heavy weight to the fact that the President and the Congress have issued

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declarations of support for basic science research. Commn Op. at 23, 24, USITC Inv.No. 337-TA67 (1980) (The President has underscored the importance of the field. ..). TheCommission therefore declined to issue an exclusion order based on the considerableencouragement by the govermnent for research. Id. at 30.

Here too, the Commission should heed the Administrations stated policy goals ofexpanding consumer access to wireless broadband networks. Specifically, the Commissionshould decline to issue an exclusion order or cease and desist order that could crimp the growthof such networks by blocking access to the devices necessary to use them. Altematively, theCommission should use its power to delay the start of an exclusion order, provide exceptionsfor repair or replacement devices, and otherwise adopt limitations to ameliorate the broadconsumer harm described above. The Commission also should specify the precise devicesaffected by any exclusion or cease and desist orders. Not only would this provide clarity to theparties but it would implement the Presidents directive for greater clarity on the scope of ITCrehefl48

46Certain Personal Data and Mobile Communications Devices and Related Software, USITC lnv. No. 337TA-7l0, Limited Exclusion Order, at l2. (Dec. I9, 201l).47Certain Systemsfor Detecting and Removing Virusesor Worms,Components Thereof and ProductsContaining Same, USITC Inv. No. 337TA510, Commn Op. on Remedy, the Public Interest, and Bonding, at 6(Aug. 23, 2005) (imposing a ceaseanddesist order with an exception to allow respondent to provide softwareupdates and service or replace parts for customers).43See Executive Action 5, White House Press Release, White House Task Force on HighTech Patent Issues:

Legislative Priorities & Executive Actions (June 4, 2013).14-


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Respectfully submitted,

Michael.AltscSenior Vice President and General CounselCTIA~The Wireless Association1400 16th Street, NW Suite 600Washington, DC 20036202.736.3200June ll, 2013


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UNITEDSTATES INTERNATIONAL TRADE COMMISSIONWashington, D.C.

In the Matter of ~CERTAIN ELECTRONIC DIGITALMEDIA DEVICES ANDCOMPONENTSTHEREOF

Investigation No. 337-TA-796

CERTIFICATE OF SERVICEI hereby certifythat a copy of the foregoingSUBMISSION OF CTIATHE WIRELESSASSOCIATION REGARDING THE PUBLIC INTEREST was servedas indicated to theparties listed below, this 11"day oflune, 2013;Honorable Lisa R. BartonActing SecretaryU.S. International Trade Commission500 E Street, S.W., Room 112AWashington, D.C. 20436Honorable Thomas P. BenderAdministrative Law JudgeU.S. International Trade Commission500 E Street, S.W., Room 317Washington, D.C. 20436Gregory MoldafskyAttorneyAdvisorU.S. Intemational Trade Commission500 E Street, S.W.Washington, D.C. [email protected] LucasThe Office of Unfair Import InvestigationsU.S. International Trade Commission500 E Street, S.W., Suite 401Washington, D.C. [email protected]

(Filed via EDIS; Eight CourtesyCopies ViaHand Delivery)

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Counselfor Samsung Electronics C0.,Ltd.,Samsung ElectronicsAmerica,Inc. and SamsungTelecommunicationsAmerica, LLCCharles K. VerhoevenQuinn Emanuel Urquhart & Sullivan, LLP50 Califomia Street, 22"FloorSan Francisco, CA [email protected]

Counselfor AppleInc.Alexander J. HadjisMorrison & Foerster LLP2000 Pem1sy1vaniaAvenue, NWSuite 6000Washington, D.C. [email protected]



Michael F. Altschul