|Court Upholds FCC Order Allowing Noncommercial Public TV to
Offer Subscription Services on Excess Digital Capacity
5/9. The U.S.
Court of Appeals (DCCir) issued its
[14 pages in PDF] in United
Church of Christ v. FCC, upholding the Federal
Communications Commission's (FCC) order allowing some advertiser supported public
The FCC adopted a Report and Order on October 11, 2001, that provides that
noncommercial public television stations may offer subscription services,
including advertiser supported subscription services, on their excess digital
capacity. This order was adopted in the FCC proceeding
titled "In re Ancillary or Supplementary Use of Digital Television Capacity by
Noncommercial Licensees" and numbered MM Docket No. 98-203. See also,
notice of the order in the Federal Register, November 26, 2001, Vol. 66, at
Pages 58973 - 58982. And see, order, at 16 FCC Rcd 19042.
The United Church of
Christ, Alliance for Community Media, and
Center for Digital Democracy filed a
petition for review of the FCC's order with the Court of Appeals. The
petitioners argued in their
[50 pages in PDF] that the order was contrary to
47 U.S.C. § 399b.
They also argued that the FCC inadequately explained its
departure from agency precedent that prohibited broadcasting of advertisements
by noncommercial public television stations and restricted the transmission of
subscription television by those stations.
The Court of Appeals denied the petition for review.
399b(a) provides that the term "advertisement" means "any message or other
programming material which is broadcast or otherwise transmitted in exchange for
any remuneration". Meanwhile, 399b(b) provides that "No public broadcast station
may make its facilities available to any person for the broadcasting of any
advertisement". That is, the definition of advertisement references "broadcast
or other transmitted", while the prohibition only references "advertisement".
The Court found that the intent of Congress is not clear on the
issue before the Court. It further held that the FCC reasonably interpreted § 399b
to prohibit only "broadcast" and not other transmissions of advertisements
by these stations.
The Court also held that the FCC "adequately addressed its
precedent by explaining that the high costs of digital technology required
greater flexibility, that digital technology offers enough capacity that public
stations can offer subscription services while still preserving their primary
use for public educational broadcasts, and that some prior Commission decisions
had authorized such stations to operate their facilities for commercial purposes
on a limited basis."
Harold Feld of the Media Access Project
argued the case for the petitioners. He stated in a
release [PDF] that "We are disappointed with the court's ruling. The FCC sets aside
special licenses solely for the use of non-commercial educational programming. For
programmers to use these noncommercial licenses to offer commercial programming undermines the very
purpose of public television. Every party to this challenge supports the mission
of public television and believes that it needs more money to continue to produce high-quality
programming for the digital age. But this is not the way. As FCC Commissioner Copps said
when he dissented from the FCC Order below, this compromises the very soul of public
|Rep. Rush Introduces Telecom Diversity Bill
5/9. Rep. Bobby Rush (D-IL) and
others introduced HR 2044, the Telecommunications Ownership Diversification Act,
a bill to amend the Internal Revenue Code to provide for a deferral of tax on
gain from the sale of telecommunications businesses in specific circumstances or
a tax credit and other incentives to promote diversity of ownership in
This is the companion bill in the House to
sponsored by Sen. John McCain (R-AZ).
See, story titled "Sen. McCain Introduces Telecom Diversity Bill" in
Daily E-Mail Alert No. 595, January 31, 2003.
The bill recites that "It is consistent
with the public interest and with the pro-competition policies of the
Telecommunications Act of 1996 to provide incentives that will facilitate
investments in, and acquisition of, telecommunications facilities by
economically and socially disadvantaged businesses, thereby diversifying the
ownership of telecommunications facilities."
Rush (at right) stated in a release that "This bill would
level the playing field ... so that economically disadvantaged businesses owners
could enter the communications field. Minority and economically disadvantaged
business owners have been absent from the telecommunications revolution. There
are many factors attributed to this lack of participation, ... but chief among
them is the lack of capital. My bill would remedy this problem by making minor
changes to the existing tax code, so that individuals who are currently
under-represented in the ownership of telecommunications companies are able to
compete on an equal footing with large companies."
The bill was referred to the House Ways
and Means Committee.
The original cosponsors of the bill include
Rep. John Dingell (D-MI), the
ranking Democrat on the House Commerce Committee, and
Rep. Fred Upton (R-MI),
the Chairman of the House Telecommunications and Internet Subcommittee. However,
while the bill is cosponsored by these, and other members of the House Commerce
Committee, it lacks original co-sponsors who are members of the Ways and Means
5/9. The Federal Trade Commission (FTC) and
the Food and Drug Administration (FDA) sent
letters to four web site operators regarding their marketing claims
pertaining to their products. The products relate to Severe Acute Respiratory Syndrome (SARS)
and other health and safety products. The
claims pertaining to SARS states that "The FTC staff strongly urges you to
review all claims you are making for your products, particularly claims that
your products can prevent, mitigate, treat or cure SARS. If your claims are not
supported by competent and reliable scientific evidence they should be deleted
or revised immediately." The FTC possesses civil enforcement authority under the
Federal Trade Commission Act. It can seek injunctive and monetary relief through
judicial or administrative actions. See also,
claims pertaining to masks and clothing to protect individuals from
bio-chemical or nuclear agents,
claims pertaining to treatments and cures for anthrax and other health hazards,
and letter [PDF]
regarding claims pertaining to potassium iodide products for protection against
5/12. The Securities and Exchange Commission
(SEC) published a
in the Federal Register containing the SEC's interpretation of its rule permitting
broker-dealers to store required records in electronic
form. The SEC stated that "Under the rule, electronic records must be preserved
exclusively in a non-rewriteable and non-erasable format. This interpretation
clarifies that broker-dealers may employ a storage system that prevents
alteration or erasure of the records for their required retention period." See,
Federal Register, May 12, 2003, Vol. 68, No. 91, at Pages 25281 - 25283.
5/6. Providian National Bank submitted
a request for an advisory
opinion [9 page PDF scan] to the Federal
Election Commission (FEC). Providian has an affinity credit card program. It
enters into agreements with companies or organizations to be
affinity sponsors. Providian then provides credit cards that are co-branded by
Providian and the affinity sponsors. Providian further states that while it
uses the affinity sponsor's trademarks and membership lists, its only interest
is increasing the number of its credit card customers. And now, Providian wants
to enter into affinity agreements with national political party committees.
Providian states that it would not contribute any money to party committees, but
it would enable its customers to do so, such as by directing rebates or bonuses to
party committees. Providian requests an advisory opinion confirming that these
affinity agreements with party committees are permissible under the Federal
Election Campaign Act (FECA).
5/8. The International Intellectual Property
Alliance (IIPA) sent a letter
[PDF] to the International Trade Commission
(USITC) stating its support for the U.S. Chile free trade agreement (FTA).
5/12. The Federal Communications Commission
(FCC) fined Western Wireless Corporation
$200,000 for operating a cellular radio transmitting tower from an unauthorized
location, in violation of
47 U.S.C. § 301.
release [PDF] and
Notice of Apparent Liability [14 pages in PDF].
5/12. The Federal Communications
Commission (FCC) announced that an individual named Rayon "Junior"
Payne was sentenced by the U.S. District
Court (MDFl) to 9 months in prison for operating an unlicensed FM radio
facility, in violation of
47 U.S.C. § 301.
See, FCC release.
|FCC Receives Few Comments on AOL Time Warner
5/13. Monday, May 5, was the deadline to submit original comments to the
Communications Commission (FCC) regarding AOL Time Warner's
petition [58 pages in PDF]
requesting relief from the FCC's January 22, 2001 Memorandum Opinion and Order
(MOO) approving the merger of AOL and Time Warner, and imposing conditions upon AOL
Time Warner regarding instant messaging services. Specifically, AOL Time Warner
seeks relief from the condition restricting its ability to offer internet users streaming
video advanced Instant Messaging based high speed services (AIHS) via AOL Time
Warner broadband facilities.
As of May 12, the FCC had published in its web site only one noteworthy
Gerald Faulhaber and
David Farber submitted a
comment [pages in PDF] on April 5 in which they stated that "We urge the FCC
to proceed cautiously. While conditions have evolved since the Merger Order that
suggest network effects and tipping are not as urgent today, other evidence
suggests that it is perhaps even more urgent. The FCC needs to recall that AOL
Time Warner has in its own hands the ability to offer advanced IM-based
highspeed services without let or hindrance: it need only interoperate with its
competitors, as it promised the world it would do two years ago, to the benefit
of all customers."
Both are now professors at the University of Pennsylvania. However, both
previously worked at the FCC on the AOL Time Warner merger.
They also pointed out that "there is one condition that is unchanged"
-- "AOL Time Warner's failure to interoperate."
They added that "AOL Time Warner has a very easy way to demonstrate that it is no
longer dominant in IM: offer to interoperate with their competitors. If they are
truly not dominant, then this is their best strategy. But if they are dominant
(as they claim they are not), then they would refuse to interoperate (which is
what they are actually doing)." (Parentheses in original.)
May 20 is the deadline to submit reply comments. This is FCC Docket No.
|Tuesday, May 13
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. Votes will be postponed until 6:30 PM.
9:00 AM - 5:00 PM. Day two of a two day meeting titled "Wireless
Innovations: New Technologies and Evolving Policies", hosted by the
Federal Communications Commission (FCC),
National Telecommunications and Information
Administration (NTIA), and Department of State. The second day will be a
panel discussion on policy. See,
notice in the Federal Register, April 24, 2003, Vol. 68, No. 79, at Page
20117 - 20118. Location: Department of Commerce Lobby and
Auditorium, 1401 Constitution Ave., NW.
9:30 AM. The Senate Commerce
Committee will hold another hearing on media ownership. The
scheduled witnesses are Mel Karmazin (P/COO of Viacom), Jim Goodmon (P/CEO of
Capitol Broadcasting Company), Frank Blethen (Publisher of the Seattle Times),
William Singleton (VCh/CEO of Media News Group and Publisher of the Denver
Post and Salt Lake Tribune), Victor Miller (Bear Sterns), Gene Kimmelman
(Consumers Union). See,
notice. Press contact:
Rebecca Hanks at 202 224-2670 or Andy Davis at 202 224-6654. Location: Room
253, Russell Building.
10:00 AM. The Senate Banking
Committee will hold a hearing on several pending nominations, including
that of Greg Mankiw to be a Member of the President's Council of
Economic Advisors. Location: Room 538, Dirksen Building.
2:00 PM. The Senate Finance
Committee's International Trade Subcommittee
will hold a hearing to examine the status of the
free trade area of the Americas, focusing on negotiations and preparations for
the Miami Ministerial.
4:00 - 5:00 PM. The U.S. Chamber of
Commerce will host an event titled "Homeland Security Business Forum:
Science and Technology Under DHS".
McQueary, Under Secretary for Science and Technology, Department of
Homeland Security, will speak. See,
registration page. The price to attend is $35 (members) or $100 (others).
For more information, contact ncfevents @uschamber.com or 202 463-5500. Location: 1615 H Street, NW.
The Federal Communications Commission
(FCC) will begin Auction 48
(upper and lower bands paging licenses).
|Wednesday, May 14
The House will meet at 10:00 AM for legislative business. It will consider
several non tech related items under suspension of the rules.
10:00 AM. The House Science Committee
will hold a hearing on cybersecurity research and development. The witnesses
will be Arden Bement, Director of the
National Institute of Standards and
McQuery, Under Secretary for Science and Technology at the Department of
Director of the National Science Foundation
(NSF), and Anthony Tether,
Director of the Defense Advanced Research
Projects Agency (DARPA). Press contact: Heidi Tringe at 202 225-4275.
Location: Room 2318, Rayburn Building.
8:30 AM. The Federal Trade Commission (FTC) will
hold a one day workshop on the role of technology in helping consumers protect
the privacy of personal information, including the steps taken to keep their
information secure. See, FTC
notice in the Federal Register, February 26, 2003, Vol. 68, No. 38, at
Pages 8904 - 8906. The FTC stated that "Reporters unable to attend the
discussion may call in: Dial-in: 1-800-377-4872 Confirmation Number: 17001898".
Location: FTC, 601 New Jersey Ave., NW.
EXTENDED TO MAY 21.
submit reply comments to the Federal
Communications Commission (FCC) in response to its
Proposed Rulemaking (NPRM) [MS Word] titled "In the Matter of Second
Periodic Review of the Commission’s Rules and Policies Affecting the Conversion
To Digital Television". This is MB Docket No. 03-15, RM 9832, and MM Docket
Nos. 99-360, 00-167, and 00-168. See also,
notice in the Federal Register, February 18, 2003, Vol. 68, No. 32, at
Pages 7737-7747. See also,
notice [PDF] extending deadlines.
|Thursday, May 15
The House will meet at 9:00 AM. It will consider
the National Transportation Safety Board Reauthorization.
9:30 AM. The Federal Communications
Commission (FCC) will hold a meeting. Location: FCC, 445 12th Street, SW,
Room TW-C05 (Commission Meeting Room).
9:30 AM. The Senate Judiciary
Committee will hold an executive business meeting. See,
Press contact: Margarita Tapia at 202 224-5225. Location: Room 226, Dirksen
10:00 AM. The Senate Banking
Committee will hold a hearing to examine the
Fair Credit Reporting Act (FCRA) and issues presented by the re-authorization
of the expiring preemption provisions. Location: Room 538, Dirksen Building.
10:00 AM. The House Judiciary
Committee will hold a hearing on
the Class Action Fairness Act of 2003. The hearing will be webcast. Press
contact: Jeff Lungren or Terry Shawn at 202 225-2492. Location: Room 2141,
12:00 NOON. Stratton Sclavos, Ch/CEO of VeriSign, will speak at a
Congressional Internet Caucus
luncheon. RSVP to email@example.com
or 202 638-4370. Lunch will be served. Location: Mansfield Room (S-207),
|Friday, May 16
12:00 NOON. The Federal Communications Bar
Association's (FCBA) Diversity Committee will host a brown bag lunch. The
speakers will be Bill Bailey and Toni Cook Bush. RSVP to Harry Wingo at 202
418-1783 or firstname.lastname@example.org. Location: Room
253, Russell Building.
Extended deadline to submit reply comments to the
Federal Communications Commission (FCC) in response to its
Notice of Inquiry (NOI) [MS Word] regarding "Additional Spectrum for
Unlicensed Devices Below 900 MHz and in the 3 GHz Band". Unlicensed devices
would include, among other things, 802.11. See,
notice in Federal Register, January 21, 2003, Vol. 68, No. 13, at Pages
2730-2733. See also, story titled "FCC Announces Notice of Inquiry Re More
Spectrum for Unlicensed Use" in
TLJ Daily E-Mail
Alert No. 566, December 12, 2002. For more information, contact Hugh Van
Tuyl in the FCC's Office of Engineering & Technology at
email@example.com or 202 418-7506. This
is OET Docket No. 02-380. See,
notice of extension [PDF].
|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