|FCC Announces UWB Report and Order and
|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
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
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.
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
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
Roll Call No. 34. President Bush said he will sign it. See,
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
(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)
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
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.
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
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
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'
|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.
|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,
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.
2/13. 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
letter [4 page PDF scan] to Department of State's (DOS)
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 e164.arpa, 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
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,
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,
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,
|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
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
firstname.lastname@example.org. 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,
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.
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
|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
email@example.com. Location: George Washington University Law
School, Faculty Conference Center, Burns Building, 5th Floor, 720 20th Street,
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
|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
firstname.lastname@example.org or Ryan Wallach at
email@example.com. Location: Conference Room of
Willkie Farr & Gallagher, 1875 K St.,
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
firstname.lastname@example.org. Location: FCC, Room
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
in the Federal Register: October 15, 2002, Vol. 67, No.199, at Pages 63578 -
comments already filed.
|Thursday, February 20
|9:30 AM. The Federal Communications
Commission (FCC) will hold a meeting. See,
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
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
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.
Tech Law Journal is instituting several new practices and procedures with the
New Year. All of these changes have one central purpose -- protecting the rights
of the author, David Carney.
The Tech Law Journal web site and the Tech Law Journal Daily E-Mail Alert
(TLJ Alert) are both authored and published by David Carney. This is a business.
The sole source of revenue for this business is subscription payments for the
TLJ Alert. Yet, it is currently being widely infringed.
This is undermining the financial viability of the business.
from the Publisher, which summarizes the new practices and procedures.
Subscription Information page for price schedule, methods of payment, and
regarding "E-Mail Monitoring".
regarding "Disclosure of Information to Third Parties".
to law students explaining why free subscriptions for law students will end
after the January 17 issue.
of state officials' subscriptions" explaining why free subscriptions for
state government officials will end after the January 17 issue.
Form and Contract (for
firms, companies, groups, and other entities), or the shorter
Form and Contract (for
persons subscribing individually). These contracts are for new paying
subscribers, and paying subscribers renewing their
subscriptions. Persons receiving free subscriptions (journalists
and government officials) should not sign a contract. Paying
subscribers whose subscription term has not expired should not
sign a contract, until their existing subscription term expires
and they resubscribe.
And finally, see revised
|About Tech Law Journal
|Tech Law Journal publishes a free access web site and
subscription e-mail alert. The basic rate for a subscription
to the TLJ Daily E-Mail Alert is $250 per year. However, there
are discounts for subscribers with multiple recipients. Free one
month trial subscriptions are available. Also, free
subscriptions are available for journalists,
federal elected officials, and employees of the Congress, courts, and
executive branch. The TLJ web site is
free access. However, copies of the TLJ Daily E-Mail Alert are not
published in the web site until one month after writing. See, subscription
Contact: 202-364-8882; E-mail.
P.O. Box 4851, Washington DC, 20008.
Copyright 1998 - 2003 David Carney, dba Tech Law Journal. All