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February 14, 2003, 9:00 AM ET, Alert No. 604.
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FCC Announces UWB Report and Order and Further NPRM
2/13. The Federal Communications Commission (FCC) announced, but did not release, a Memorandum Opinion and Order and Further Notice of Proposed Rulemaking (MOO and FNPRM) regarding ultra wideband (UWB) transmission systems. It issued only a short release [PDF].

Also, Ed Thomas, Chief of the FCC's Office of Engineering and Technology (OET), spoke and answered questions about this item at an FCC event on Thursday morning, February 13. He was joined by Julius Knapp and John Reed of the OET.

This proceeding is titled "Revision of Part 15 of the Commission's Rules Regarding Ultra-Wideband Transmission Systems, Memorandum Opinion and Order and Further Notice of Proposed Rulemaking". It is ET Docket No. 98-153. The FCC adopted its First Report and Order [119 pages in PDF] permitting the marketing and operation of certain types of new products incorporating UWB technology on February 14, 2002. However, the FCC did not release the actual document until late April of 2002.

Fourteen petitions for reconsideration of the First Report and Order were filed with the FCC. The FCC release states that the present MOO "largely reaffirmed the procedures adopted last year to authorize the unlicensed operations of ultra-wideband ... Minor changes were implemented to further facilitate the operation of imaging devices."

Ed Thomas stated that "the Commission action affirms all major aspects of the First Report and Order, that will provide ultra wideband developers and manufacturers with much need certainty." He added that it "affirms the Commission's commitment to the framework adopted last year to guide deployment and support the technology."

UWB devices, which use very narrow pulses with very wide bandwidths, have potential applications in both radar and communications technologies. Proponents of its use have argued that UWB devices can use large portions of already allocated spectrum with minimal or no interference to incumbent users. Companies, such as Intel, have argued that UWB is a very promising technology for enabling short distance, high data rate connections that can support new and innovative applications.

Six of the petitions for reconsideration were filed by authorized radio services seeking more protection. Eight sought relaxation of the rules contained in the First Report and Order.

John Reed, a senior engineer at the OET, stated that "we don't believe that any major changes to the rules are warranted. Further, we believe that major changes to the rules at this stage would be disruptive to current industry product development efforts."

He also stated that the Further NPRM proposes "limited changes to the rules to accommodate devices with technical characteristics similar to ultra wideband devices. We expect the ultra wideband regulations will continue to evolve. The next twelve to eighteen months should allow the new production of new products. Further, interference analysis and testing is being contemplated by government and non-government entities."

The FCC release states that "The Commission also proposed additional new rules to address issues raised regarding the operation of low pulse repetition frequency (PRF) UWB systems, including vehicular radars, in the 3.1-10.6 GHz band; the operation of frequency hopping vehicular radars in the 22-29 GHz band as UWB devices; the establishment of new peak power limits for wideband Part 15 devices that do not operate as UWB devices; and the definition of a UWB device."

Finally, Ed Thomas was asked, "Do you see any easing of the restrictions on the outside use, especially in the peer to peer networking area?" Thomas responded, "Not at this time." He added that "That will be a question that possibly will be addressed after we do the testing."

FCC Chairman Michael Powell did not attend the meeting, but released a statement [PDF]. He wrote that "By our action today -- affirming in all major respects the Ultra-Wideband (UWB) First Report & Order -- the Commission provides UWB developers and manufacturers with much needed regulatory certainty. Consistent with the objectives identified in the Spectrum Policy Task Force report, the Order we adopt increases access to spectrum by leveraging innovative technology while protecting incumbents from harmful interference. Achieving a stable regulatory framework will allow a reorientation of energy away from the regulatory process and toward making these remarkable, potentially life-saving devices available for use -- particularly by the public safety community.

Chairman Powell added that "The UWB experience also offers a valuable lesson in the pitfalls of reactive spectrum policymaking, and emphasizes the need for new, forward thinking approaches, such as those recommended by the Task Force. Presented with a disruptive technology like UWB, the Commission scrambled to develop a regulatory framework to allow for its deployment in the marketplace. Implementation of the Task Force's recommendations would place the Commission on the leading edge of innovation -- creating clear ground rules that allow new technologies to be developed and then deployed immediately, without requiring innovators to approach the Commission on bended knee, and to face a protracted regulatory approval process. Future developments in spectrum-based technologies should be limited only by the constraints of physics -- not by the out-dated constraints of the regulatory code.

Similarly, Commissioner Michael Copps did not attend, but released a statement. He wrote that UWB technologies "have made great progress over the year since our First Report & Order. I have confidence that, given the proper regulatory climate, the companies that are bringing this technology to consumers will make even more progress in the year to come. Today’s decision should be seen as a reaffirmation that UWB is here to stay." He added that "As UWB devices are brought to market, the FCC will test them and be alert for interference complaints – but today's continued conservative approach should minimize interference problems.

One year ago, Commissioner Copps was less enthusiastic. He wrote in a separate statement then that "Because the effects of widespread use of UWB are not yet fully known, and interference could impact critical spectrum users, I will support, albeit somewhat reluctantly, the ultra-conservative ultra-wideband step we take today."

House and Senate Pass FY 2003 Appropriation Package With TIA Amendment
2/13. The House approved the conference report on HJRes 2, the further appropriations for FY 2003 resolution, by a vote of 338-83. See, Roll Call No. 32. The Senate approved the conference report by a vote of 76-20. See, Roll Call No. 34. President Bush said he will sign it. See, White House release.

The House Rules Committee published the conference report on HJRes 2 in its web site. It includes funding for most executive branch departments, except the Department of Defense (DOD). However, Division M of the conference report is titled "Defense Matters". Its Section 111 is titled "Limitation on Use of Funds for Research and Development on Total Information Awareness Program". This was first added to the Senate version of the resolution in January as an amendment (SA 59) offered by Sen. Ron Wyden (D-OR). The original House version of HJRes 2 did not include this amendment.

The Wyden amendment limits the ability of the DOD to spend money on Defense Advanced Research Projects Agency's (DARPA) Total Information Awareness (TIA) project.

See, Division M and N [56 page PDF scan], at Division M, Section 111, pages 7-12. The language in the conference report is almost identical to the language as originally proposed by Sen. Wyden. The 60 day deadlines have been expanded to 90 days.

Don Evans Proposes Combining Tech Related Entities at Commerce Department
2/13. Secretary of Commerce Don Evans announced that he will seek Congressional approval to combine several technology and spectrum related entities that are a part of Department of Commerce (DOC). The new combined entity would include the Technology Administration (TA), the National Telecommunications and Information Administration (NTIA), and the e-commerce policy functions of the International Trade Administration (ITA).

A DOC release states that "the Under Secretary for Technology would oversee the new agency that would focus on a range of issues including technical standards, spectrum management, and technology and e-commerce policy issues."

Phil Bond is the Under Secretary of Commerce for Technology. He heads the Technology Administration, which includes three entities, the National Institute of Standards and Technology (NIST), the Office of Technology Policy (OTP), and the National Technical Information Service (NTIS).

The NTIA, which is headed by Nancy Victory, has spectrum management authority, represents the administration on certain communications matters, and has grant making authority (although President Bush's budget proposal would eliminate this responsibility). Arden Bement is the Director of the NIST. Bruce Mehlman is the Assistant Secretary of Commerce for Technology Policy, and head of the OTP.

Donald EvansSecretary Evans (at right) stated that "Convergence is the business model in the digital economy -- it should be the business model in the federal government ... This Administration understands that our global marketplace has changed and that telecom and technology operate together, not separately. We need to adjust our thinking and adjust our structure to keep pace with the world, our economy and innovation."

Secretary Evans' proposal did not reference other technology related units at the DOC, such as the U.S. Patent and Trademark Office (USPTO) and the Bureau of Industry and Security (BIS). The BIS administers the export control regime, which grants export licenses for, among other things, dual use items, such as software and encryption products, and high performance computers. The BIS also included the Critical Infrastructure Assurance Office (CIAO), which has responsibilities pertaining to cyber security. The recently enacted bill to create the Department of Homeland Security (DHS) transfers the CIAO to the new DHS. It now becomes part of the DHS's Directorate of Information Analysis and Infrastructure Protection (IAIP). However, the DOC's Computer Security Division (CSD) was not transferred to the DHS; it remains a part of the NIST, which is part of the Technology Administration, which is involved in Secretary Evans' proposal.

10th Circuit Holds No Federal Subject Matter Jurisdiction in Railroad Rights of Way Case
2/13. The U.S. Court of Appeals (10thCir) issued its opinion in Nicodemus v. Union Pacific, holding that there is no federal subject matter jurisdiction over a case brought by landowners against a railroad regarding whether certain railroad rights of way dating back to the 19th Century extend to fiber optic cable.

Union Pacific acquired railroad rights of way over plaintiffs' lands under federal land grant statutes dating from 1852 to 1875. Union Pacific has entered into agreements with telecommunications providers in which it has licensed the right to install and maintain fiber optic cables in the rights of way over plaintiffs' lands.

Plaintiff land owners filed a complaint in U.S. District Court (DWyo) against Union Pacific alleging that the granting of fiber optic cable licenses exceeds Union Pacific's authority. Plaintiffs sought damages for trespass, damages for unjust enrichment, an accounting and disgorgement of rents and profits, a permanent injunction, and a declaratory judgment. Some of the plaintiffs additionally plead damages for slander of title, damages for inverse condemnation, and an injunction requiring removal of the cable.

The District Court dismissed for lack of subject matter jurisdiction -- there is no federal question. Union Pacific appealed. The Appeals Court affirmed. Although Union Pacific acquired its rights of way under federal grants, all of the plaintiffs causes of action are based upon Wyoming state property and tort law claims. This is a matter for the state courts.

More News
2/13. The Federal Communications Commission (FCC) released the agenda for its meeting on Thursday, February 20, 2003. The only item is its report and order in the triennial review of incumbent local exchange carriers (ILEC) unbundling obligations, and the appropriate framework for broadband access over wireline facilities. This item had previously been schedule for Thursday, February 13. The meeting will take place at 9:30 AM at the FCC, Room TW-C305, 445 12th Street, SW. See, FCC release.

2/12. Microsoft filed its appeal brief [PDF] with the U.S. Court of Appeals (4thCir) in Sun Microsystems v. Microsoft. Microsoft requests that the Appeals Court vacate the District Court's preliminary injunction that requires Microsoft to include Sun's Java technology in certain of its products.

Kenneth Dam2/13. Deputy Treasury Secretary Kenneth Dam (at right) gave a speech titled "The Road to Wellville: Economic Challenges Facing Japan" to the Japan Society in New York City. He addressed, among other things, structural reform deregulation. He stated that "industries that don't face competition fail to innovate. And they fall further behind. Unfortunately, many of these regulated and lagging industries -- business services, medical services, communications, and financial services -- are industries that offer the greatest potential for growth in today's economy. Structural reform and deregulation that removes barriers to competition, new entry, and new product introduction is the strongest tool for pushing productivity and growth upwards. The deregulation of Japan's cellular telephone industry provides a vivid example."

2/13. Federal Communications Commission (FCC) Chairman Michael Powell wrote a letter [4 page PDF scan] to Department of State's (DOS) David Gross regarding ENUM, or electronic numbering. He wrote that "ENUM is a new and potentially important service, a product of the convergence of the traditional public switched telephone network with the Internet." He added that "I endorse the recommendation, as expressed in Assistant Secretary Victory's letter of February 12, 2003, that the United States take concrete steps towards studying whether or not to opt in to, and that the United States government promote resolution of the many issues surrounding a possible domestic implementation of ENUM. I further support the notion that any implementation should involve minimal domestic and international regulation, and should reflect the need to preserve national sovereignty, competition, interoperability, innovation, stability, security and privacy." See also, story titled "NTIA Director Writes State Department Re ENUM" in TLJ Daily E-Mail Alert No. 603, February 13, 2003.

People and Appointments
2/13. The Senate confirmed William Donaldson to be head of the Securities and Exchange Commission (SEC). See also, statement by President Bush.

2/13. Eric Einhorn was named Chief of the Telecommunications Access Policy Division of the Federal Communications Commission's (FCC) Wireline Competition Bureau (WCB). This Division oversees funds used to support universal service, the Telecommunications Relay Service (TRS), and numbering resources. Before going to work at the FCC, Einhorn work in the Washington DC office of the law firm of Swidler Berlin and at the law firm of Cadwalader Wickersham & Taft. See, FCC release [PDF].

2/13. Katherine Schroder was named Senior Advisor to the Federal Communications Commission's (FCC) Wireline Competition Bureau Chief, William Maher. However, she is on parental leave now. She joined the FCC in 1994 straight out of law school. See, FCC release [PDF].

2/13. Stephen McGuire was appointed Chief Administrative Law Judge (ALJ) at the Federal Trade Commission (FTC), effective on March 3. He will replace James Timony, who recently retired. McGuire is currently an ALJ at the Environmental Protection Agency (EPA), as well as Alternative Dispute Resolution (ADR) Neutral in the EPA's office of Administrative Law Judges. See, FTC release.

Friday, February 14
The House will not meet. It has adjourned until 2:00 PM on Tuesday, February 25 for the Presidents Day District Work Period. The Supreme Court is in recess.

9:30 AM. The Senate Governmental Affairs Committee will hold a hearing to examine the President's proposal to create a terrorist threat integration center, including consolidating intelligence analysis. Location: Room 342, Dirksen Building.

11:00 AM. The Library of Congress (LOC) will announce a plan titled "National Digital Information Infrastructure and Preservation Program" (NDIIPP). The scheduled speakers will include James Billington (Librarian of Congress) and Laura Campbell (Associate Librarian for Strategic Initiatives). For more information, contact Guy Lamolinara at 202 707-9217 or Location: LOC, Mary Pickford Theater, third floor, Madison Building, 1st St. & Independence Ave., SE.

TO BE DECIDED WITHOUT ORAL ARGUMENT. 9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in Moultrie Independent Telephone Company v. FCC, No. 01-1506. Judges Tatel, Garland and Williams will preside. Location: 333 Constitution Ave., NW.

Deadline to submit comments to the U.S. Court of Appeals for the Ninth Circuit regarding the reappointment of Judge Arthur Weissbrodt, U.S. Bankruptcy Judge for the Northern District of California, San Jose Division. His current term expires on December 2, 2003. See, notice [PDF].

12:00 NOON. Deadline to submit comments to the Office of the U.S. Trade Representative (USTR) regarding countries that deny adequate and effective protection of intellectual property rights or deny fair and equitable market access to U.S. persons who rely on intellectual property protection. The USTR is required by Section 182 of the Trade Act of 1974 to make designations, commonly referred to as Special 301 designations, of countries that deny adequate protection, or market access, for IPR. See, 19 U.S.C. § 2242. See also, notice in the Federal Register, December 30, 2002, Vol. 67, No. 250, at Pages 79683 - 79684.

Monday, February 17
Presidents Day. The House will be in recess for the Presidents Day District Work Period from February 17 through 21. The FCC will be closed on February 17.
Tuesday, February 18
9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in AT&T v. FCC, No. 01-1485. Judges Tatel, Garland and Williams will preside. Location: 333 Constitution Ave., NW.

4:00 PM. Michael Meurer (Boston University School of Law) will present a paper titled "Sharing Copyrighted Works". For more information, contact Robert Brauneis at 202 994-6138 or Location: George Washington University Law School, Faculty Conference Center, Burns Building, 5th Floor, 720 20th Street, NW.

Extended deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its 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. See, FCC release [PDF] and Order [PDF] of October 11, 2002 extending deadlines. See also, Order [PDF] of January 3, 2003.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Notice of Inquiry (NOI) in the proceeding titled "In the matter of Facilitating the Provision of Spectrum Based Services to Rural Areas and Promoting Opportunities for Rural Telephone Companies To Provide Spectrum Based Services". This is WT Docket No. 02-381. For more information, contact Robert Krinsky at 202 418-0660. See also, notice in the Federal Register, January 7, 2003, Vol. 68, No. 4, at Pages 723 - 730.

Extended deadline to submit comments to the Federal Communications Commission (FCC) in response to its Further Notice of Proposed Rulemaking, (FNPRM), released last month, regarding whether providers of various services and devices not currently within the scope of the FCC's 911 rules should be required to provide access to emergency services. This is CC Docket No. 94-102 and IB Docket No. 99-67. See, notice in the Federal Register, January 23, 2003, Vol. 68, No. 15, at Pages 3214 - 3220, and notice of extension.

Wednesday, February 19
10:00 AM. BellSouth Ch/CEO Duane Ackerman will speak about the future of the telecommunications industry. For more information, contact Bill McCloskey at 202 463-4129. Location: Zenger Room, National Press Club, 529 14th St. NW, 13th Floor.

12:15 PM. The Federal Communications Bar Association's (FCBA) Young Lawyers Committee will host a brown bag lunch. The topic will be "The Role of In House Counsel". For more information, contact Yaron Dori at or Ryan Wallach at Location: Conference Room of Willkie Farr & Gallagher, 1875 K St., NW.

12:15 PM. The Federal Communications Bar Association's (FCBA) Transactional Practice Committee will host a brown bag lunch. The topic will be FCC antitrust merger reviews. The speakers will include Jim Bird (head of the Federal Communications Commission's (FCC) Office of General Counsel's (OGC) Transactional Team) and Jim Barker (Latham & Watkins). For more information, contact Lauren Kravetz at 202 418-7944 or Location: FCC, Room 4-B516.

Deadline to submit reply comments to the Copyright Office (CO) in response to its Notice of Inquiry (NOI) regarding the exemption of certain classes of works from the prohibition against circumvention of technological measures that control access to copyrighted works, pursuant to 17 U.S.C. § 1201. See, CO summary of this proceeding, notice in the Federal Register: October 15, 2002, Vol. 67, No.199, at Pages 63578 - 63582, and comments already filed.

Thursday, February 20
9:30 AM. The Federal Communications Commission (FCC) will hold a meeting. See, agenda. Location: FCC, 445 12th Street, SW, Room TW-C05 (Commission Meeting Room).

10:00 AM - 12:00 PM. The Department of State's International Telecommunication Advisory Committee (ITAC) will meet. A notice in the Federal Register states that the purpose of this meeting is "to begin preparations for the meeting of the ITU Telecommunications Development Advisory Group, which will take place March 19-21, 2003 in Geneva, Switzerland", and/or "to prepare for the 2003 meeting of the Telecommunications Development Advisory Group (TDAG)". The notice also states requirements for admission. See, Federal Register, February 6, 2003, Vol. 68, at Page 6250. Location: State Department.

9:00 - 11:30 AM. The Federal Communications Commission's (FCC) Public Safety National Coordination Committee, Interoperability Subcommittee will meet at the FCC. Location: FCC, 445 12th Street, SW.

12:30 - 3:00 PM. The Federal Communications Commission's (FCC) Public Safety National Coordination Committee, Technology Subcommittee will meet. Location: FCC, 445 12th Street, SW.

3:00 - 5:30 PM. The Federal Communications Commission's (FCC) Public Safety National Coordination Committee, Implementation Subcommittee will meet. Location: FCC, 445 12th Street, SW.

Friday, February 21
9:00 AM. The Alliance for Public Technology (APT) will host a policy forum and awards luncheon. The scheduled speakers include Rep. Sylvester Reyes (D-TX), Bruce Mehlman (Assistant Secretary of Commerce for Technology Policy), Kyle Dixon (Special Counsel to FCC Chairman Powell for Broadband Policy), and William Kennard (former FCC Commissioner), and Brett Perlman (Commissioner of the Texas Public Utilities Commission). The program, which is titled "2003 Broadband Forum: Delivering the Promise: Strategies for Universal Broadband Deployment", begins at 9:15 AM. The luncheon is at 12:00 NOON. The policy forum is free; the luncheon is a fundraiser. See, APT notice. Location: National Press Club, 529 14th St. NW, 13th Floor.

9:30 AM - 12:30 PM. The Federal Communications Commission's (FCC) Public Safety National Coordination Committee will meet. See, notice in the Federal Register, January 23, 2003, Vol. 68, No. 15, at Page 3252. Location: FCC, 445 12th Street, SW.

Deadline to submit reply comments to the Federal Communications Commission (FCC) regarding BellSouth's December 20, 2002 Petition for Forbearance [16 pages in PDF] from application of the separate subsidiary requirements to provide international directory assistance service. BellSouth asked the FCC to forbear from applying the structural separation requirements of 47 U.S.C. § 272 to allow BellSouth to provide international directory assistance service on an integrated basis together with its local and nonlocal directory assistance services. See, FCC notice [2 pages in PDF]. This is CC Docket No. 97-172.


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