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March 17, 2003, 9:00 AM ET, Alert No. 624.
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FCC Announces NPRM To Provide Flexibility To Users of MMDS/ITFS Spectrum

3/13. The Federal Communications Commission (FCC) announced, but did not release, a wide ranging Notice of Proposed Rulemaking and Memorandum Opinion and Order (NPRM & MOO) regarding Multipoint Distribution Service (MDS), Multichannel Multipoint Distribution Service (MMDS), and Instructional Television Fixed Service (ITFS). The FCC issued only a brief press release [MS Word] describing this item. The NPRM asks, among other things, whether ITFS users should be allowed to sell their licenses to commercial users. The FCC release states that this item will "promote competition, innovation and investment in wireless broadband services".

The FCC release states that "As a result of these proposed rule changes, the Commission anticipates that licensees will be afforded an opportunity to provide alternatives for the provision of broadband services to consumers in urban, suburban, and rural areas."

Commission Michael Copps was more specific in his prepared statement [MS Word]. He wrote that "The NPRM asks whether the Commission should remove the requirement that ITFS licensees use the spectrum entrusted to them for educational purposes. It also asks whether the Commission should allow ITFS licensees to sell their licensees to the highest bidder, where a private company could buy the spectrum and dispense with any educational activity."

He also cautioned that "Such an outcome would threaten this important educational tool. If ITFS becomes just another commercial service, we will have lost the last place on the spectrum reserved specifically for education."

FCC Chairman Michael Powell wrote in a prepared statement [MS Word] that "By today's Notice, the Commission explores ways for the American people to enjoy the full potential of a large parcel of previously underutilized, prime spectrum real estate. The opportunity is monumental -- the MMDS/ITFS band ("2.5 GHz Band") encompasses 190 MHz of contiguous spectrum. This is more than double the 83 MHz that spurred the development of WiFi at 2.4 GHz. It is roughly equal to all spectrum currently devoted to terrestrial, mobile wireless -- a ubiquitous, nationwide service characterized by a high-level of competition, low prices, and constant innovation. But the 2.5 GHz band has not yet delivered similar rewards, in no small part because of the well-intentioned, but ultimately misguided, regulatory decisions of this agency."

Powell added that "The 2.5 GHz band has labored for years under the heavy hand of command-and-control regulation" and that "the time has come chip off the regulatory barnacles encumbering ITFS and MMDS."

Commissioner Kathleen Abernathy wrote in her prepared statement [MS Word] that "some of the spectrum remains underutilized ... Today's NPRM does not inhibit the ability of ITFS incumbents to offer their services as long as they wish. It simply provides a forum for looking at ways to improve the flexibility afforded to all users of the MMDS/ITFS spectrum."

The FCC's release also states that the FCC "commences a comprehensive examination of the rules and policies governing the Services in order to provide greater opportunities for increased access to spectrum [,] establish uniform regulatory policies for similar services and encourage efficient and effective utilization of spectrum."

This item follows the submission of proposal [97 pages in PDF] on October 7, 2002 by a coalition comprised of the the Wireless Communications Association International (WCAI), the National ITFS Association (NIA) and the Catholic Television Network (CTN). These entities represent users in the 2.5 GHz Band.

This is WT Docket No. 02-68, 03-66, and 03-67, and MM Docket No. 97-217. For more information, contact Nancy Zaczek or Charles Oliver at 202 418-0680, nzaczek@fcc.gov or coliver@fcc.gov.

The full title of the proceeding is "Amendment of Parts 1, 21, 73, 74 and 101 of the Commissionís Rules to Facilitate the Provision of Fixed and Mobile Broadband Access, Educational and Other Advanced Services in the 2150-2162 and 2500-2690 MHz Bands, WT Docket No. 03-XX; Part 1 of the Commissionís Rules Ė Further Competitive Bidding Procedures, WT Docket No. 03-XX; Amendment of Parts 21 and 74 to Enable Multipoint Distribution Service and the Instructional Television Fixed Service Amendment of Parts 21 and 74 to Engage in Fixed Two-Way Transmissions, MM Docket No. 97-127; Amendment of Parts 21 and 74 of the Commissionís Rules with Regard to Licensing in the Multipoint Distribution Service and in the Instructional Television Fixed Service for the Gulf of Mexico, WT Docket No. 02-68, Notice of Proposed Rulemaking and Memorandum Opinion and Order".

FCC Announces NOI Re Receiver Performance Standards

3/13. The Federal Communications Commission (FCC) announced, but did not release, a Notice of Inquiry (NOI) regarding interference immunity performance specifications. This NOI follows the recommendations of the FCC's Spectrum Policy Task Force (SPTF) report [PDF] of November 15, 2002.

FCC Chairman Michael Powell wrote in a prepared statement [MS Word] that "The Spectrum Task Force has offered a number of proposals for refining the FCC's approach to interference and developing better metrics for describing and quantifying the interference environment in particular bands. The development of receiver standards is an integral part of this effort. Spectrum is too critical a resource in our digital economy to allow interference avoidance to be addressed on an ad hoc incremental basis. All factors that contribute to the interference environment and, ultimately, the ability of users to receive clear radio signals, must be taken into account as early in the process as possible."

He added that "our objective is to gather information on the technological landscape -- what is the state-of-the-art in receiver technology and what is deployed in the field. Without baselines, there can be no benchmarks. In developing these baselines, I prefer to rely on market incentives and voluntary industry programs to establish receiver immunity guidelines in the first instance."

Commissioner Kathleen Abernathy wrote in her prepared statement [MS Word] that "the information gathered in this proceeding will form the basis for the interference standards for many of the items we each use on a daily basis including the next generation of digital televisions and AM/FM radios."

Commissioner Michael Copps also supported the item, but cautioned that "we must also understand the costs of designing more robust receivers." See, statement [MS Word].

This proceeding is titled "Interference Immunity Performance Specifications for Radio Receivers; Review of the Commissionís Rules and Policies Affecting the Conversion to Digital Television". This is ET Docket No. 03-65 and MM Docket No. 00-39. While the FCC did not release the NOI, it did issue a short press release [MS Word]. For more information, contact Hugh Van Tuyl of the FCC's Office of Engineering and Technology (OET) at hvantuyl@fcc.gov or 202 418-7506.

The FCC stated in its press release that it seeks public comment on "immunity performance and interference tolerance of existing receivers", "possibilities for improving the level of receiver immunity in the various radio services", "potential positive and negative impacts of receiver standards on innovation and the marketplace", "possible approaches by which desired levels of receiver immunity or tolerances could be achieved, including incentives for improving performance, voluntary industry standards, mandatory standards, or a combination of these or other approaches", and "considerations that should guide the Commissionís approach to these matters in the various licensed radio services".

See also, statement [MS Word] by Commissioner Kevin Martin, and statement [MS Word] of Commissioner Jonathan Adelstein.

Michael Petricone of the Consumer Electronics Association (CEA) stated in a release that the "CEA does not believe that mandatory standards for DTV or other receivers are necessary to achieve the goal of spectrum efficiency. ... The marketplace provides ample motivation to ensure that these consumers are well served by DTV products, as it has with analog televisions." He added that "DTV tuner technology continues to move forward. Companies such as Broadcom, ATI and LINX regularly introduce new tuner chips that meet increasing performance levels in multipath, impulse notice, adjacent and co-channel interference. Meanwhile, in venues such as the Advanced Television Systems Committee (ATSC), broadcasters and DTV manufacturers are already engaged in voluntary discussions to ensure the effectiveness of DTV broadcast transmission."

In contrast, Steve Berry of the Cellular Telecommunications & Internet Association (CTIA) stated in a release that "This could be an excellent opportunity to improve the spectrum efficiency of licensees who are not subject to market incentives."

9th Circuit Applies Doctrine of Merger in Copyright Case

3/14. The U.S. Court of Appeals (9thCir) issued its opinion [PDF] in Ets-Hokin v. Skyy, a case involving allegations of infringement of copyrights in photographs of a vodka bottle taken by Ets-Hokin. The District Court, applying the defensive doctrines of merger and scenes a faire, granted summary judgment to Skyy. The Appeals Court affirmed.

The merger doctrine provides that if the idea underlying the work can be expressed only in one way, then the work will not be protected from infringement, because otherwise, there would be a monopoly in the underlying idea.

While this case pertains to pictures of liquor bottles, the precedent relied upon by the Appeals Court included Apple v. Microsoft & HP, 35 F.3d 1435 (9th Cir. 1994). The Appeals Court held in Apple that when similar features of a work are "as a practical matter indispensable, or at least standard, in the treatment of a given idea, they are treated like ideas and are therefore not protected by copyright."

NIST Releases Report on Facial Recognition Technology

3/13. The National Institute of Standards and Technology (NIST) released a report titled "Face Recognition Vendor Test 2002". This FVRT report was prepared by the NIST, the Defense Advanced Research Projects Agency (DARPA), NAVSEA, and the Department of Defense (DOD) Counterdrug Technology Development Program Office. See, Overview and Summary [544 KB in PDF], Evaluation Report [4.0 MB in PDF], and Technical Appendices [7.2 MB in PDF].

The report states that it was based on "a large-scale evaluation of automatic face recognition technology. The primary objective of FRVT 2002 was to provide performance measures for assessing the ability of automatic face recognition systems to meet real-world requirements. FRVT 2002 measures performance of the core capabilities of face recognition technology. It provides an assessment of the potential for face recognition technology to meet the requirements for operational applications."

The report further states that is was based upon a "high computational intensity test" of  "121,589 operational images of 37,437 people. The images were provided from the U.S. Department of Stateís Mexican non-immigrant Visa archive. From this data, real-world performance figures on a very large data set were computed. Performance statistics were computed for verification, identification, and watch list tasks". (Footnote omitted.)

The report relates several findings. First, the report found that images taken indoors work better that images taken outside.

Second, the report found that performance decreases as the the time increases between the date of the database image and the date of the image presented for comparison. The report states that "performance degraded at approximately 5% points per year".

Third, the report found that performance declines with the size of the database, and with the number of persons on a watch list. The report states that "For the best system, the top-rank identification rate was 85% on a database of 800 people, 83% on a database of 1,600, and 73% on a database of 37,437. For every doubling of database size, performance decreases by two to three overall percentage points. In mathematical terms, identification performance decreases linearly with respect to the logarithm of the database size."

The report also states that "For the best system, the identification and detection rate was 77% at a false alarm rate of 1% for a watch list of 25 people. For a watch list of 300 people, the identification and detection rate was 69% at a false alarm rate of 1%. In general, a watch list with 25 to 50 people will perform better than a larger size watch list."

Monday, March 17

The House will meet at 12:00 NOON in pro forma session only. The Senate will meet at 1:00 PM for morning hour; at 2:00 PM it will take up the FY 2004 Budget Resolution. The Supreme Court is in recess until March 23.

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in Trans Intelligence v. FCC, No. 02-1098. Judges Ginsburg, Edwards and Garland will preside. Location: 333 Constitution Ave., NW.

Day one of a three day conference titled "Open Source for National and Local eGovernment Programs in the U.S. and EU". See, agenda. For more information, contact Tony Stanco at 202 994-5513 or Stanco@seas.gwu.edu. Location: George Washington University, The Marvin Center Grand Ballroom, 800 21st Street, NW.

Deadline to submit comments to the Federal Communications Commission (FCC) regarding its notice of proposed rulemaking (NPRM) pertaining to the service rules for the Dedicated Short Range Communications Systems in the 5.850-5.925 GHz band (5.9 GHz band). See, notice in the Federal Register, January 15, 2003, Vol. 68, No. 10, at Pages 1999-2002. For more information, contact Nancy Zaczek at 202 418-7590 or nzaczek@fcc.gov, or Gerardo Mejia at 202 418-2895 or gmejia@fcc.gov.

Tuesday, March 18

The House will meet at 12:30 PM for morning hour and at 2:00 PM for legislative business. It will consider several non tech related items under suspension of the rules.

Day two of a three day conference titled "Open Source for National and Local eGovernment Programs in the U.S. and EU". See, agenda. For more information, contact Tony Stanco at 202 994-5513 or Stanco@seas.gwu.edu. Location: George Washington University, The Marvin Center Grand Ballroom, 800 21st Street, NW.

8:25 AM - 5:00 PM. Day one of a two day meeting of the National Institute of Standards and Technology's (NIST) Visiting Committee on Advanced Technology. Pre-registration is required. See, notice in the Federal Register, March 4, 2003, Vol. 68, No. 42, at Pages 10205-10206. Location: Employees Lounge, Administration Building, NIST, Gaithersburg, MD.

9:00 AM - 12:45 PM. The Progressive Policy Institute (PPI) will host a half day conference titled "Beyond the IT Bubble". It will examine "the next phase in the information technology revolution and government's role in facilitating its positive impact on economic growth". Sen. Ron Wyden (D-OR) will deliver the keynote luncheon address at 12:15 PM. For more information, contact Karin Kullman or Eric Wortman at 202 547-0001. RSVP to TechProject@dlcppi.org or contact Brian Newkirk at 202 608-1245. Location: Hyatt Regency Capitol Hill, 400 New Jersey Avenue, NW.

10:00 AM. The Senate Finance Committee will hold a hearing on the nomination of Mark Everson to be Commissioner of the Internal Revenue Service (IRS). Location: Room 215, Dirksen Building.

10:00 AM. The Senate Banking Committee will hold a hearing on proposals to regulate illegal internet gambling. Location: Room 538, Dirksen Building.

12:15 PM. The Federal Communications Bar Association's (FCBA) Mass Media Practice Committee will host a brown bag lunch. The speaker will be Barbara Kreisman, Chief of the FCC Media Bureau's Video Division. For more information, contact Frank Jazzo at jazzo@fhhlaw.com. RSVP to Wendy Parish at wendy@fcba.org. Location: NAB, 1771 N St., NW, 1st Floor Conference Room.

2:00 - 3:00 PM. The National Telecommunications Cooperative Association (NTCA) and the Rural Utilities Service's (RUS) will host a webcast event at which they will provide an "overview of the Rural Broadband Access Loan and Guarantee Program". To participate, contact Aaryn Slafky (NTCA) at 703 351-2087 or aslafky@ntca.org by March 17.

Wednesday, March 19

The House will meet at 10:00 AM for legislative business.

Day three of a three day conference titled "Open Source for National and Local eGovernment Programs in the U.S. and EU". See, agenda. For more information, contact Tony Stanco at 202 994-5513 or Stanco@seas.gwu.edu. Location: George Washington University, The Marvin Center Grand Ballroom, 800 21st Street, NW.

9:00 AM - 12:00 NOON. Day two of a two day meeting of the National Institute of Standards and Technology's (NIST) Visiting Committee on Advanced Technology. Pre-registration is required. See, notice in the Federal Register, March 4, 2003, Vol. 68, No. 42, at Pages 10205-10206. Location: Employees Lounge, Administration Building, NIST, Gaithersburg, MD.

9:00 AM - 5:00 PM. The Federal Communications Commission (FCC) North American Numbering Council will meet. Location: FCC, Room TW-C305 (Commission Meeting Room), 445 12th Street, SW.

10:00 AM. The House Science Committee will hold a hearing on HR 766, the Nanotechnology Research and Development Act of 2003. Location: Room 2318, Rayburn Building.

Thursday, March 20

The House will meet at 10:00 AM for legislative business.

10:00 AM. The Senate Appropriations Committee's Subcommittee on Commerce, Justice, State, and the Judiciary will hold a hearing on the President's budget request for fiscal year 2004 for the Department of Commerce. Location: Room S-146, Capitol Building.

10:00 AM. Dane Snowden, Chief of the Federal Communications Commission's (FCC) Consumer & Governmental Affairs Bureau, will hold a media briefing to discuss the work of the bureau, including telemarketing reform, slamming rules, disability issues, tribal issues, and consumer outreach. RSVP to Rosemary Kimball at 202 418-05111 or rkimball@fcc.gov. Location: Conference Room CY B-511.

10:30 AM. The House Appropriations Committee's Subcommittee on Homeland Security will hold a hearing. Tom Ridge, the Secretary of Homeland Security, will testify. Location: Room 2359, Rayburn Building.

Friday, March 21

10:00 AM. The Senate Appropriations Committee's Subcommittee on Commerce, Justice, State, and the Judiciary will hold a hearing on President Bush's budget request for fiscal year 2004 for the Department of Commerce (DOC). Location: Room S-146, Capitol.

12:15 PM. Jim Bird (head of the Federal Communications Commission's Office of General Counsel's Transactional Team), Don Stockdale (FCC's Office of Strategic Planning and Policy Analysis), Walt Strack (FCC's Wireless Telecommunications Bureau), and Jim Barker (Latham & Watkins) will speak at a luncheon on FCC antitrust merger reviews. The Federal Communications Bar Association's (FCBA) web site states that "This meeting will be off the record". For more information, contact Lauren Kravetz at 202 418-7944 or lkravetz@fcc.gov. This event had originally been scheduled for February 19, but was postponed due to snow. Location: Willkie Farr & Gallagher, 1875 K St., NW.

Reps. Tauzin & Greenwood Write Powell Re Waste Fraud & Abuse In E-Rate Program

3/13. Rep. Billy Tauzin, Chairman of the House Commerce Committee, and Rep. James Greenwood, Chairman Subcommittee on Oversight and Investigations, wrote a letter to Federal Communications Commission (FCC) Chairman Michael Powell regarding waste, fraud and abuse in the FCC's e-rate program.

The two wrote that "problems of waste, fraud, and abuse have trailed E-rate throughout its first five years of funding. Targeted audits of funding beneficiaries over the first two years identified more than $10 million in inappropriate funding disbursements. Recently, we learned there are at least 30 active Federal and state investigations of either vendors or recipients of E-rate funds around the United States -- involving, in aggregate, more than $200 million of questionable funding."

Rep. James GreenwoodReps. Tauzin and Greenwood (at right) also requested that the FCC produce documents pertaining to Universal Service Administrative Company's (USAC) management and oversight of the Schools and Library mechanism of the Universal Service Fund (USF), and waste, fraud, and abuse of program funds.

They also wrote a similar letter to Cheryl Parrino, CEO of the USAC.

More News

3/14. The Federal Trade Commission (FTC) granted in part and denied in part petitions from the Direct Marketing Association (DMA) and the American Teleservices Association (ATA) requesting that the FTC stay enforcement of the Telemarketing Sales Rule. See, FTC letter to counsel for the ATA and letter to counsel for the DMA. See also, FTC release.

3/13. The Federal Communications Commission (FCC) that it adopted a Report and Order that amends its rules to provide for three new forms for use by multichannel video programming distributors (MVPDs) that allow for electronic filing. See, FCC release.

3/13. The Federal Communications Commission (FCC) compiled an "Accessibility Handbook" for use by FCC staff that provides guidelines, information, and procedures to ensure that the FCC is accessible to individuals with disabilities. See, FCC release and order [PDF].

3/14. The Federal Communications Commission (FCC) released its biennial regulatory review report [MS Word] for 2002, and the 2002 Biennial Regulatory Review Staff Reports. See, FCC release and the CGB Staff Report, IB Staff Report, OET Staff Report, WCB Staff Report, WTB Staff Report, and WTB Staff Report Appendix [MS Word].

3/13. The House Government Reform Committee's Subcommittee on Technology, Information Policy, Intergovernmental Relations and the Census will hold a hearing titled "Federal E-Government Initiatives: Are We Headed in the Right Direction?" The witnesses were Mark Forman (Office of Management and Budget), Joel Willemssen (General Accounting Office), David McClure (The Council for Excellence in Government), and Leonard Pomata (webMethods). See, prepared testimony [31 pages in PDF] of Willemssen titled "Electronic Government: Success of the Office of Management and Budget's 25 Initiatives Depends on Effective Management and Oversight".

3/13. The General Accounting Office (GAO) released a report [37 pages in PDF] titled "File-Sharing Programs: Peer-to-Peer Networks Provide Ready Access to Child Pormography".

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