|FCC to Sunset Cellular
|8/8. The Federal
Communications Commission (FCC) announced, but did not
release, a Report and Order modifying Part 22 of its rules
that cover cellular phone service. It did, however, issue a press
release [3 pages in PDF]. This Report and Order eliminates
certain outdated rules that were more applicable when all
cellular service was analog. For example, it eliminates, after
fives years, the requirement that service providers that have
converted to digital service must also continue to provide
The Report and Order is FCC 02-229. This proceeding is titled
"Year 2000 Biennial Review -- Amendment of Part 22 of the
Commission’s Rules to Modify or Eliminate Outdated Rules
Affecting the Cellular Radiotelephone Service and Other
Commercial Mobile Radio Services". It is numbered WT
Docket No. 01-108.
While the Report and Order makes numerous rule changes, most
of the discussion and debate at the FCC meeting of August 8 on
this item was devoted to the elimination of the cellular
Roger Noel, Deputy Chief of the Commercial Wireless Division,
stated at the FCC meeting that the Report and Order provides
that the cellular analog requirement will sunset after five
years. However, he further stated the caveat that the Report
and Order also requires CMRS carriers to file reports after
three and four years, and that the FCC will then determine
whether to extend the sunset.
FCC Commissioner Michael Copps
approved in part, and dissented in part. He objected to
changing the cellular analog rule. He also dissented from the
elimination of cellular anti trafficking rules. He also stated
that he objects to "the elimination of the requirement
that cellular applicants demonstrate their financial ability
to operate their system at a time when bankruptcies are
threatening consumers". See, statement
Commissioner Kevin Martin
said in his statement
[PDF] that ultimately, the FCC "must ensure the
availability of digital phones that are compatible with
hearing aids and cochlear implants. Fixing the digital
compatibility problem, rather than relegating the hearing
disabled community to analog phones, is the real
While FCC staff and the other Commissioners focused on the
impact of eliminating the cellular analog rules for persons
using analog hearing aids, it was left to FCC Chairman Michael Powell
to explain the underlying purpose. There is a shortage of
spectrum for current cellular services, not to mention future
Third Generation wireless services. Spectrum that is still
allocated for analog cellular service is underused,
inefficiently used, and preventing its use for digital
cellular services, as well as future services.
This is what Powell had to say at the meeting: "I would
just like to make one point of interest. One might listen to
the overview of this item, and fail to see the concomitant
public interest benefit, like the very real and important
returns associated with hearing aid compatibility. But, the
overwhelming number of Americans in country who subscribe to
digital services increasingly have service and quality
disruption problems as a consequence of spectrum shortages.
One of the huge consumers of spectrum is the continued
requirement for the provision of analog services, much of
which goes underutilized."
Powell continued that "A logical transition path, a
pretty significant period of time, is a way of demonstrating a
course toward a world in which spectrum can be moved
efficiently to higher and better uses that are concomitant
with the public's interest, and what they continue to demand
in terms of new and wireless services. I don't think that the
Commission has trivialized the importance of an important
segment of the hearing disabled community, and it has made
adequate precautions to ensure that should those requirements
not be complied with, in the context of that order, one has to
trust a Commission committed to the public interest will act
in response to impending sunset. I certainly believe that I,
and any successors of interest of ours will do that. But, I do
think that it is important for the market, for consumers, to
keep trying to push spectrum in ways that are a higher and
better use, to improve service quality, to improve the
viability of service that everyone understands is continuing
to strain under a spectrum shortage."
Victory, Director of the National Telecommunications
and Information Administration (NTIA), stated in a release
that "The Administration supports the Commission's
decision to eliminate the outdated analog cellular requirement
over five years ... As a result of this action, spectrum will
be managed more efficiently and carriers will have more
flexibility to create innovative new services for consumers. I
also commend the Commission for helping to meet the needs of
the hearing assisted community and the telematics industry by
establishing a reasonable transition period and committing to
monitor the success of that transition."
Tom Wheeler, P/CEO of the Cellular
Telecommunications & Internet Association (CTIA),
stated in a release that "This is a matter of good
spectrum management ... We are in a serious spectrum crunch
and analog is an outdated technology that makes poor use of
scarce spectrum. Digital technology increases cell site
capacity and it allows better security, quality and new
services for customers. Wireless users generally replace their
phones every 18 months, so the five year transition period
allows analog subscribers and their service providers more
than three product cycles to upgrade to digital
|FCC to Eliminate Anti
Trafficking and Other Cellular Rules
|8/8. The Federal
Communications Commission (FCC)'s Report and Order
modifying Part 22 of its rules that cover the cellular phone
service addresses other topics, in addition to analog cellular
requirements. For example, it also eliminates the cellular
anti trafficking rule.
Anti Trafficking. The Report
and Order also provides for the elimination of the cellular
anti trafficking rule. Commissioner Michael Copps
(at right) said in his prepared
statement [PDF] that "Our rules also currently
protect consumers against the dangers of speculation and the
trafficking of cellular licenses. There is a danger to
American consumers when speculators obtain licenses with the
intention of ``flipping their license´´ for a quick profit
rather than providing service. The spectrum is a public
resource. Congress entrusted the Commission with the duty to
manage the spectrum intending that we work to assign it to
people who will promote the public interest. Our anti
trafficking rules require cellular licensees to provide
service for one year before selling their license. This
furthers Congress's goal, and does not seem too much to ask of
those privileged to hold a cellular license. Nonetheless, the
Commission eliminates this rule today."
Fox v. FCC and the Meaning of Necessary. Commissioner Kevin Martin
also addressed the legal controversy regarding the meaning of
the word "necessary". He wrote in his prepared
statement [PDF] that under the biennial review process,
the FCC must "review its regulations for providers of
telecommunications service every two years and to ``determine
whether any such regulation is no longer necessary in the
public interest as the result of meaningful economic
competition between providers of such service.´´" Then,
it "shall repeal or modify any regulation it determines
to be no longer necessary in the public interest." See, 47 U.S.C.
Martin wrote in his prepared statement that "I am
concerned by the Order’s failure to discuss the meaning of
the term ``necessary´´". This is also at issue in Fox
v. FCC, in which the FCC seeks review of the
February 19, 2002, opinion
of the U.S. Court of
Appeals (DCCir). The FCC argued in its Petition
for Rehearing En Banc [40 pages in PDF] that the term
"necessary" should not necessarily be construed to
mean "necessary"; and, if it is, this
"threatens to impose a continuing and unworkable burden
on the agency in carrying out its biennial review
See, story titled "FCC Files Petition for Review of
Appeals Court Opinion in Fox v. FCC" in TLJ
Daily E-Mail Alert No. 415, April 22, 2002, and story
titled "DC Circuit Vacates Cable Broadcast Cross
Ownership Rule" in TLJ
Daily E-Mail Alert No. 372, February 20, 2002.
Martin argued that the term should be "read in accordance
with its plain meaning", and that the FCC should have
tackled this issue in this Report and Order. However, he did
not raise this in his oral remarks at the FCC meeting on
|FCC Releases Order Setting
DTV Mandates and Deadlines
|8/9. The Federal
Communications Commission (FCC) released its Second
Report and Order and Second Memorandum Opinion and Order
[48 pages in PDF] in the proceeding titled "In the Matter
of Review of the Commission's Rules and Policies Affecting the
Conversion To Digital Television". This Report and Order
requires that most TV sets be built with digital TV tuners by
This is MM Docket No. 00-39. The FCC announced, but did not
release, this Report and Order at its August 8, 2002, meeting.
See also, stories in TLJ Daily E-Mail Alert No. 488, August 9,
|8/9. The Office of the U.S.
Trade Representative (USTR) proposed opening World Trade Organization (WTO)
dispute settlement proceedings to the public. The USTR
proposes that the WTO hold open hearings, make briefs
available to the public (except in confidential proceedings),
provide early public release of panel reports, and adopt rules
governing the consideration of amicus curiae submissions. See,
|FCC Issues NPRM on
|8/8. The Federal
Communications Commission (FCC) adopted a Notice
of Proposed Rulemaking (NPRM) [15 pages in PDF] in its
proceeding titled "In the Matter of Digital Broadcast
Copy Protection". This NPRM proposes that the FCC
promulgate a broadcast flag rule, and seeks comment on this,
and related questions.
This is MB Docket No. 02-230. Public comments are due by
October 30, 2002. Reply comments are due by December 13, 2002.
See also, FCC
Ken Ferree, Chief of the FCC's Media Bureau, stated that
the NPRM "addresses another key hurdle to the DTV
transition, the absence of a digital broadcast copy protection
mechanism. In the absence of adequate protection, an unlimited
number of near perfect copies of digital content can be made
in violation of copyright."
The NPRM states that "Without adequate protection,
digital media, unlike its analog counterpart, is susceptible
to piracy because an unlimited number of high quality copies
can be made and distributed in violation of copyright laws. In
the absence of a copy protection scheme for digital broadcast
television, content providers have asserted that they will not
permit high quality programming to be broadcast digitally. 1
Without such programming, consumers may be reluctant to invest
in DTV receivers and equipment, thereby delaying the DTV
The NPRM recites the history of negotiations conducted by
representatives of the consumer electronics, information
technology, motion picture, cable and broadcast industries on
copy protection issues. It states that the Copy Protection
Technical Working Group's (CPTWG) Broadcast Protection
Discussion Subgroup (BPDG) "recently announced a
consensus on the use of a ``broadcast flag´´ standard for
digital broadcast copy protection. This consensus would
require use of the Redistribution Control Descriptor, as set
forth in ATSC Standard A/65A (the ``ATSC flag´´), to mark
digital broadcast programming so as to limit its improper
However, the NPRM continues, "Despite the consensus
reached on the technical standard to be implemented, final
agreement was not reached on a set of compliance and
robustness requirements to be associated with use of the ATSC
flag, enforcement mechanisms, or criteria for approving the
use of specific protection technologies in consumer
The NPRM seeks comment on whether the FCC should promulgate
broadcast flag regulations. It also seeks comment on
"whether quality digital programming is now being
withheld because of concerns over the lack of digital
broadcast copy protection" and "To what extent would
the absence of a digital broadcast copy protection scheme and
the lack of high quality digital programming delay or prevent
the DTV transition?"
The NPRM also seeks comment on "whether broadcasters and
content providers should be required to embed the ATSC flag or
another type of content control mark within digital broadcast
programming, or whether they have sufficient incentive to
protect such programming such that a government mandate is
unnecessary." It also seeks comment on whether the FCC
"should mandate that consumer electronics devices
recognize and give effect to the ATSC flag or another type of
content control mark", and if so, "whether this
mandate should include devices other than DTV broadcast
The NPRM also seeks comments "on the extent to which
broadcast copy protection technologies raise privacy concerns
and whether rules are needed to ensure that consumers' privacy
interests are protected", and "whether there are
First Amendment or any other constitutional issues".
The NPRM finally asks whether the FCC even has authority to
conduct this rule making proceeding. See, following story.
|FCC Debates Its Authority
to Promulgate Broadcast Flag Rule
|8/8. The Federal
Communications Commission's (FCC) Notice of Proposed
Rulemaking (NPRM) in its proceeding titled "In the Matter
of Digital Broadcast Copy Protection" also asks for
comments on the statutory authority of the FCC to conduct this
Simply put, Title 17 of the U.S. Code, which codifies the
Copyright Act, gives rule making authority for implementing
the Copyright Act to the Library of Congress, not the FCC.
Moreover, there is no specific grant of authority to the FCC
in Title 47 of the U.S. Code, the Communications Act, to
promulgate copyright protection regulations.
Copps said in his prepared
statement [PDF] at the FCC's August 8 meeting that
"there is not a majority here to resolve the issue of the
If the FCC were to assert authority, it might be based upon
Title I of the Communications Act, which contains a general
statement regarding protecting against public interest harms.
It was, for example, the authority relied upon by the FCC in
promulgating Computer I, Computer II and, Computer III.
However, Title I has served as the basis for not subjecting
"information services" to regulation under other
Titles of the Communications Act (such as those pertaining to
cable and common carrier), rather than as the basis for
subjecting to FCC rulemaking a subject committed to another
federal agency, and historically addressed by the Congress or
the Copyright Office.
The NPRM also seeks comment on "the jurisdictional basis
for Commission rules dealing with digital broadcast television
copy protection. Is this an area in which the Commission could
exercise its ancillary jurisdiction under Title I of the Act?
We ask commenters to identify provisions of the Act that
provide the Commission with authority to implement its
ancillary jurisdiction. If the Commission has ancillary
jurisdiction over digital broadcast copy protection, are there
any limits upon its scope? For example, does the Commission
have authority to mandate the recognition of the ATSC flag in
consumer electronics devices? We also ask commenters to
identify any statutory provisions that might provide the
Commission with more explicit authority to adopt digital
broadcast copy protection rules. For example, do Sections
336(b)(4) and (b)(5) impact upon the Commission’s ability to
adopt digital broadcast copy protection regulations?"
Abernathy stated at the August 8 meeting that "I also
want to emphasize that there are some very real jurisdictional
questions that need to be addressed in the first
Martin stated that there are two issues, "whether the
Commission has jurisdiction over this copy protection
issue" and "whether we should exercise that
Commissioner Copps, in contrast, stated that "I believe a
strong case can be made that the statute provides us with such
authority." However, he did not set out the case.
Ken Ferree, Chief of the FCC's Media Bureau, spoke to
reporters after the FCC's August 8 meeting. He insisted that
there is not a turf fight between the FCC and Library of
|AG Ashcroft Addresses
Liberty, Order, and Electronic Surveillance
|8/7. Attorney General John Ashcroft
gave a speech
to the Eighth Circuit Judges Conference in Duluth, Minnesota.
He spoke philosophically about the nature of liberty and
order. He also addressed Internet and communications
Ashcroft stated that "Our post September 11 policies have
been carefully crafted to prevent terrorist attacks while
protecting the privacy and civil liberties of Americans. We
have, for example, sought to close the technology gap between
terrorists and law enforcement by updating the law. Congress
passed the USA Patriot Act which allows us to monitor
communications in the digital, as well as the analog
He continued that "I have also revised guidelines for FBI
agents to allow them to conduct online searches on the same
terms and conditions as the rest of the public. But with every
reform, we have been careful not to alter the important,
substantive legal predicates that exist to preserve the
privacy of law abiding citizens. We have also enhanced the
capacity of law enforcement to gather and analyze intelligence
on terrorist activity. The Patriot Act broadened our ability
to share intelligence between and among government
He compared the work of the Department
of Justice in fighting terrorism to the Nuremberg
tribunal. He stated that "It is now as it was then. A
calculated, malignant and devastating evil has arisen in our
world. Civilization cannot ignore the wrongs that have been
done. America will not tolerate their being repeated."
He quoted former Justice Robert Jackson twice. He also cited
Benjamin Franklin, George Washington, Learned Hand, George
Orwell, and Randy
|People and Appointments
LaFuze and Albert Jacobs
were appointed to the U.S.
Patent and Trademark Office's (USPTO) Patent Public
Advisory Committee. LaFuze is a partner in the law firm of Vinson & Elkins,
and co-chair of the firm's Intellectual Property / Technical
Litigation Practice; he is also a past president of the
American Intellectual Property Law Association. Jacobs is a
shareholder in the New York City office of the law firm of Greenberg Traurig,
and Chair of its National Intellectual Property Practice.
8/9. President Bush announced his intent to designate Vance
Coffman to be Chairman of the President's National Security
Telecommunications Advisory Committee (NSTAC). He also
announced his intent to designate Duane Ackerman to be
Vice Chairman of the NSTAC. Coffman is Ch/CEO of Lockheed Martin.
Ackerman is Ch/CEO of BellSouth.
The NSTAC, created by Executive
Order 12382 in September 1982, provides industry based
advice and expertise to the President regarding national
security and emergency preparedness communications policy.
|DHHS Revises HIPAA Health
|8/9. The Department of Health
and Human Services (DHHS) released changes to the
regulations setting standards for privacy of individually
identifiable health information, promulgated pursuant to the
Health Insurance Portability and Accountability Act of 1996
See, DHHS release,
of changes, and DHHS prepublication
of changes to the privacy regulations [MS Word], all
released on August 9. See also, DHHS's medical privacy web site.
Congress passed the HIPAA in 1996. It provided that the
Congress would enact national patient privacy standards within
three years, and that if it did not, then the DHHS would
promulgate regulations. The Congress did not enact a health
privacy bill. Hence, the DHHS acted. It issued its proposed
rule in 1999, and then, on December 28, 2000, in the closing
days of the Clinton administration, released its final rule.
See, 2000 Rule: Part
1 | Part 2
| Part 3 | Part 4 | Regulation Text
The current release contains changes to the 2000 rule. On
August 9, the DHHS released a prepublication of changes to the
rule. On August 14 the DHHS will publish the entire rule, as
amended, in the Federal Register. The rule will take effect
for most covered entities on April 14, 2003.
Secretary of HHS Tommy Thompson stated in a release
that "The rule protects the confidentiality of Americans'
medical records without creating new barriers to receiving
quality health care. It strikes a common sense balance by
providing consumers with personal privacy protections and
access to high quality care."
Georgetown University's Health Privacy Project
issued a release
in which it stated that "With these changes, HHS
eliminates the patient consent requirement and opens the door
for the use of people's medical records for marketing purposes
without notice or consent."
|Monday, August 12
|Day five of six of the American Bar Association's annual
meeting. See, TLJ's
complete listing of technology law related events.
Location: various hotels across Washington DC. Highlights
include the following:
• 8:45 AM. Program titled "Is Washington Still
the Center of the Antitrust Universe? Do the Supreme Court,
the Congress and the Federal Enforcement Agencies Control the
Agenda?" Location: Ritz-Carlton, The Plaza Ballroom,
• 9:00 AM. Program titled "Securities
Enforcement Then and Now: The SEC Under a New Administration".
Location: Mayflower, Grand Ballroom, Promenade Level.
• 9:30 AM. Program titled "Privacy of
Healthcare Information: What Every Attorney Should Know about
HIPAA". Location: Marriott Wardman Park, Maryland
Suite C, Lobby Level.
• 10:00 AM. Program titled "Patriot Games No
Longer: Business Community’s Role in Cybersecurity -- New
Requirements and Evolving Practical Concerns for Business
Lawyers". Location: Hyatt Regency, Ticonderoga,
• 10:30 AM. Program titled "Stolen Identities:
Government and Industry Responses to Consumer Identity Fraud".
Location: Hyatt Regency, Yorktown, Ballroom Level.
• 11:00 AM. Program titled "Foreign Trade
Antitrust Improvements Act: How Does It Affect Washington’s
Dominance in the Antitrust Universe?" Location:
Ritz-Carlton, The Plaza Ballroom, Lobby Level.
• 1:30 PM. Program titled "Global
Harmonization: Has There Been Any Progress in Relocating the
Center of the Antitrust Universe?" Location:
Ritz-Carlton, The Plaza Ballroom, Lobby Level.
• 2:00 PM. Program titled "Internet and Other
Electronic Information Access for Persons with Disabilities".
Location: Marriott Wardman Park, Virginia Suite A, Lobby
• 2:30 PM. Program titled "Reality Bytes?
eContracting in Today’s Environment". Location:
Hyatt Regency, Congressional A, Lobby Level.
• 2:30 PM. Program titled "Recent Developments
in Antitrust: A Global Review". Location: Hyatt
Regency, Congressional B, Lobby Level.
• 3:45 PM. Program titled "Are States Invited
to the Party? Federal Preemption of State Antitrust Law: Why
Not?" Location: Ritz-Carlton, The Plaza Ballroom,
Deadline to submit reply comments to the Federal Communications Commission
(FCC) in response to its Notice of Proposed Rule Making (NPRM)
"regarding the sunset of the statutory requirements under
section 272 imposed on Bell Operating Companies (BOCs) when
they provide in-region, interLATA services and seeks comment
on whether, and if so, under what conditions, the structural
and nondiscrimination safeguards established in section 272
should be extended by the Commission either generally or with
respect to specific states." See, notice
in the Federal Register, June 21, 2002, Vol. 67, No. 120, at
Pages 42211 - 42215.
|Tuesday, August 13
|Day six of six of the American Bar Association's annual
meeting. See, TLJ's
complete listing of technology law related events.
Location: various hotels across Washington DC. Highlights
include the following:
• 8:30 AM. Program titled "The Antitrust Year
in Review". Location: Ritz-Carlton, The Plaza
Ballroom, Lobby Level.
• 9:00 AM. Program titled "Cyber-Sleuthing: A
Guide to Level Computer Assisted Discovery and Collection of
Electronic Data". Location: Hilton Washington,
Jefferson Ballroom East, Concourse Level.
• 12:00 PM. Event titled "Antitrust Luncheon:
Developments in Federal Antitrust Enforcement 2002".
Location: Ritz-Carlton, The Ritz-Carlton Ballroom, Salon III,
• 2:00 PM. Program titled "Developments in
Merger Law and Policy 2002". Location: Ritz-Carlton,
The Plaza Ballroom, Lobby Level.
10:00 AM. The U.S.
District Court (DC) will hold a status hearing in USTA
v. FBI, D.C. No. 1:1998cv2010. Judge Hogan will preside.
Location: Courtroom 8, 333 Constitution Ave., NW.
10:00 AM - 12:00 NOON. The State Department's International
Telecommunication Advisory Committee (ITAC) will meet. See, notice
in Federal Register. Location: Room 1105, State Department.
|Wednesday, August 14
|1:00 - 5:00 PM. The Department of Commerce's (DOC) National Telecommunications
and Information Administration (NTIA) will host a
roundtable meeting regarding the convergence of communications
technologies, including the Telephone Number Mapping (ENUM)
Protocol that facilitates convergence between the Internet and
the public switched telephone network. See, NTIA
in the Federal Register. For more information, contact Wendy
Lader, NTIA Office of Policy Analysis and Development, at 202
482-1150 or firstname.lastname@example.org.
Location: Room 4830, DOC, 1401 Constitution Ave., NW.
|USITC Institutes Section
|8/9. The U.S. International
Trade Commission (USITC) published a notice
in the Federal Register announcing that on August 1, 2002 it
instituted an investigation, pursuant to Section 337 of the
Tariff Act of 1930, of the importation and sale of electronic
The petitioner is Franklin
Electronic Publishers, Inc. It is the assignee of U.S.
Patent No. 5,203,705, which is titled "Word spelling
and definition educational device". The abstract states
that it discloses "An electronic spelling correcting
machine compares input term against a list of terms in memory
and validates spelling and provides a set of terms which may
correspond to the input term if the input term is incorrect.
The validated term or suggested term is provided with a
locating indicia that permits the user to go to the page in a
book where definition of the meaning of the word may be found.
Various word games are incorporated. ..."
The respondents are LeapFrog Enterprises, Inc., of Emeryville,
California, and Jetta Company, Ltd., of Hong Kong, PRC. The
administrative law judge assigned to the case is Paul Luckern.
This is Inv. No. 337-TA-475.
See, Federal Register, August 9, 2002, Vol. 67, No. 154, at
Pages 51868 - 51869. See also, USITC Notice of
Investigation [4 pages in PDF] issued on August 6.
|About Tech Law Journal
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