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March 3, 2004, 9:00 AM ET, Alert No. 848.
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Appeals Court Overturns Key Provisions of FCC Triennial Review Order

3/2. The U.S. Court of Appeals (DCCir) issued its opinion [62 pages in PDF] in USTA v. FCC, overturning key parts of the Federal Communications Commission's (FCC) triennial review order (TRO).

The opinion leaves largely untouched those portions of the TRO in which the FCC refrained from unbundling next generation broadband facilities. The opinion vacates those portions of the TRO in which the FCC delegated decision making authority to the states to make impairment findings.

Commissioners Kevin Martin, Michael Copps, and Jonathan Adelstein issued a joint statement [PDF] in which they wrote that "We have instructed our General Counsel to seek a stay and to appeal the D.C. Circuit decision to the Supreme Court".

Highlights of the Opinion. First, the Appeals Court upheld portions of the TRO that were challenged by competitive local exchange carriers (CLECs) pertaining to broadband facilities. For example, the TRO provides that there is no unbundling requirement for fiber to the home (FTTH) loops. The Court upheld this.

The TRO also provides that there is no unbundling requirement for a transmission path over hybrid loops utilizing the packet switching capabilities of their DLC systems in remote terminals. However, ILECs must still provide unbundled access to a voice grade equivalent channel and high capacity loops utilizing TDM technology, such as DS1s and DS3s. This too was upheld.

Also, the Court upheld the portion of the TRO that eliminates line sharing as an unbundled network element.

However, the Appeals Court vacated key portions of the TRO that were challenged by the incumbent local exchange carriers (ILECs) pertaining to switching, and delegation to the fifty states of authority regarding impairment determinations.

The Court concluded that "We vacate the Commission's subdelegation to state commissions of decision-making authority over impairment determinations, which in the context of this Order applies to the subdelegation scheme established for mass market switching and certain dedicated transport elements (DS1, DS3, and dark fiber). We also vacate and remand the Commission's nationwide impairment determinations with respect to these elements." (Parentheses in original.)

The Court wrote that "We therefore vacate, as an unlawful subdelegation of the Commission's § 251(d)(2) responsibilities, those portions of the Order that delegate to state commissions the authority to determine whether CLECs are impaired without access to network elements, and in particular we vacate the Commission’s scheme for subdelegating mass market switching determinations. (This holding also requires that we vacate the Commission’s subdelegation scheme with respect to dedicated transport elements, discussed below.)" (Parentheses in original.)

It also wrote that "We therefore vacate the FCC’s determination that ILECs must make mass market switches available to CLECs as UNEs", subject to an exception.

The Court also wrote that "We therefore vacate the national impairment findings with respect to DS1, DS3, and dark fiber and remand to the Commission to implement a lawful scheme."

On other matters, the Court concluded that "We vacate the Commission's decision not to take into account availability of tariffed special access services when conducting the impairment analysis, and we therefore vacate and remand the decision that wireless carriers are impaired without unbundled access to ILEC dedicated transport."

It also concluded that "We vacate the Commission’s distinction between qualifying and non-qualifying services, and remand (but do not vacate) the decision that competing carriers are not entitled to unbundled EELs for provision of long distance exchange service." (Parentheses in original.)

And, it wrote that "We remand the Commission’s decision to exclude entrance facilities from the definition of ``network element´´ for further development of the record to allow proper judicial review. The petitions for review are otherwise denied, except for NASUCA's petition, which is dismissed for want of standing, and the state commissions' (and that part of the ILEC petitions relating to compensation for modification of elements), which are dismissed as unripe." (Parentheses in original.)

Finally, the Court wrote that "The ILECs' mandamus petitions are dismissed as moot."

Order Under Review. The FCC released its triennial review order [576 pages in PDF] on August 21, 2003. However, it held meeting on February 20, 2003 at which it announced that it had adopted the yet to be written TRO. The FCC was operating under a Court imposed deadline. At that time, the FCC released short press release [2 pages in PDF] and an attachment [4 pages in PDF], and individual Commissioners made statements.

This TRO is titled "Report and Order and Order on Remand and Further Notice of Proposed Rulemaking". The proceeding is titled "In the Matter of Review of the Section 251 Unbundling Obligations of Incumbent Local Exchange Carriers, Implementation of the Local Competition Provisions of the Telecommunications Act of 1996, and Deployment of Wireline Services Offering Advanced Telecommunications Capability". The proceeding is numbered CC Docket No. 01-338, CC Docket No. 96-98, and CC Docket No. 98-147.

See, story titled "Summary of FCC Triennial Review Order" in TLJ Daily E-Mail Alert No. 725, August 25, 2003. See also, stories titled "FCC Announces UNE Report and Order", "FCC Order Offers Broadband Regulatory Relief", "FCC Announces Decision on Switching", "Commentary: Republicans Split On FCC UNE Order", and "Congressional Reaction To FCC UNE Order" in TLJ Daily E-Mail Alert No. 609, February 21, 2003.

Meaning of Unbundling. The TRO addresses the Section 251 unbundling obligations of incumbent local exchange carriers (ILECs). Unbundled network elements (UNEs) are those portions of telephone networks that the ILECs, such as Verizon, BellSouth, SBC and Qwest, must make available to competing carriers, such as AT&T and MCI WorldCom, seeking to provide telecommunications services. The Telecommunications Act of 1996 provides that ILECs must provide access to certain of their network elements at regulated rates.

47 U.S.C. § 251(c)(3) provides that ILECs have "The duty to provide, to any requesting telecommunications carrier for the provision of a telecommunications service, nondiscriminatory access to network elements on an unbundled basis at any technically feasible point on rates, terms, and conditions that are just, reasonable, and nondiscriminatory in accordance with the terms and conditions of the agreement and the requirements of this section and section 252 of this title. An incumbent local exchange carrier shall provide such unbundled network elements in a manner that allows requesting carriers to combine such elements in order to provide such telecommunications service."

Section 251 unbundling requirements were created by the 1996 Act. 47 U.S.C. § 251(d)(1) requires that "Within 6 months after February 8, 1996, the Commission shall complete all actions necessary to establish regulations to implement the requirements of this section."

Section 251(d)(2) requires the FCC, in establishing unbundling requirements, to "consider, at a minimum, whether ... the failure to provide access to such network elements would impair the ability of the telecommunications carrier seeking access to provide the services that it seeks to offer." The interpretation of the work "impair" has been central the FCC's unbundling orders, and the Court opinions overturning them.

The ILECs, and their groups, such as the U.S. Telecom Association (USTA), have long argued that requiring them to give their competitors access to their facilities at low rates gives the ILECs no incentive to build new facilities. CLECs, and their groups, such as CompTel/ASCENT, have argued that such access is necessary to spur competition.

Litigation History. The unbundling requirements, and the requirement that the FCC write regulations, where enacted in the Telecommunications Act of 1996, which became effective over eight years ago. On two prior occasions, courts struck down the FCC's unbundling rules.

The Supreme Court vacated the FCC's first unbundling order in AT&T v. Iowa Utilities Board, 525 U.S. 366 (1999). The FCC then promulgated another unbundling order. But, the U.S. Court of Appeals (DCCir) vacated this order in USTA v. FCC (2002). And, the Supreme Court denied certiorari.

The triennial review order, so named because the FCC consolidated its proceeding on remand with its triennial review of unbundling obligations, is the FCC's third attempt to write unbundling rules. The present opinion faults this third attempt.

Moreover, the Court expressed its impatience with the FCC's repeated failures. It wrote that "As to the portions of the Order that we vacate, we temporarily stay the vacatur (i.e., delay issue of the mandate) until no later than the later of (1) the denial of any petition for rehearing or rehearing en banc or (2) 60 days from today's date. This deadline is appropriate in light of the Commission's failure, after eight years, to develop lawful unbundling rules, and its apparent unwillingness to adhere to prior judicial rulings."

Reactions of Commissioners. Kevin MartinThree of the five Commissioners -- Martin, Copps, and Adelstein -- issued a joint statement [PDF]. They wrote that "We are disappointed in the Court's decision to eliminate the Commission's rules requiring incumbent carriers to open their legacy voice networks to competition. We believe that the rules preserve competition in a manner that is lawful, and recognize the important role that states have historically played."

"Today over 50 million Americans benefit from the new local and long distance one-rate plans offered by both incumbents and competitors that are a result of our rules." The three concluded that "In the past, the Supreme Court has made clear that the FCC has significant discretion in ensuring that the local telephone markets are open to competition. We have instructed our General Counsel to seek a stay and to appeal the D.C. Circuit decision to the Supreme Court so that we can clarify tension with the Supreme Court’s past decisions."

Michael PowellChairman Michael Powell (at left) also issued a statement [PDF]. He wrote that "Today's court ruling upheld the Commission's decision to spur the development and deployment of vital broadband services to all Americans. As a result, our citizens will enjoy the increased capabilities, innovation, and lower prices of advanced wireline broadband services for decades to come."

"I dissented from the majority's decision on local telephone competition because it was inconsistent with the law and would result in years of regulatory uncertainty and unrealized consumer promise.  Today, the court agreed and restored the opportunity to bring about new advanced services and true competition that will bring consumers choice and innovation."

He concluded that "My fellow Commissioners and I need to expeditiously get to work to produce a set of judicially sound rules, once and for all. I have already directed the staff to begin preparing new rules that will provide the sorely needed clarity and guidance essential to bringing consumers the benefits they were promised and deserve."

The fifth Commissioner, Kathleen Abernathy, issued a statement [PDF] too. She wrote that "Today, the D.C. Circuit Court of Appeals upheld the Commission’s decision to refrain from unbundling next-generation broadband facilities. This is a big victory for American consumers. The Commission’s framework will help promote greater investment by removing regulatory barriers to broadband deployment. Telecommunications providers already have stepped up their deployment in the wake of the Commission’s Order, and I hope that the Court’s decision upholding our framework will further accelerate investment."

"I am not surprised that the Court vacated the Commission's decision to delegate extremely broad decisionmaking authority to state commissions to preserve the unbundled network element platform (UNE-P).  As I stated in my dissent when the Commission announced its decision last year, the majority’s abdication of our responsibility to decide where impairment exists was inconsistent with the statute and prior court decisions.  At this point, I sincerely hope that the Commission will work collaboratively toward developing an unbundling framework that can survive judicial scrutiny. I am open to considering a variety of approaches, but our primary goal should be to provide greater certainty to a beleaguered industry. I look forward to working with my colleagues to respond expeditiously to the court’s directives", said Abernathy.

Reaction to the Appeals Court Opinion in USTA v. FCC

3/2. Numerous groups, companies, and government officials have commented on the opinion [62 pages in PDF] of the U.S. Court of Appeals (DCCir) in USTA v. FCC overturning key parts of the Federal Communications Commission's (FCC) triennial review order [576 pages in PDF] (TRO).

Sen. Ernest Hollings (D-SC), the ranking Democrat on the Senate Commerce Committee, and a leading CLEC proponent, stated in a release "Today, the D.C. Circuit leveled a staggering blow to the benefits of local telephone competition. Within a few short months, tens of millions of Americans could face higher prices and fewer choices as competitive alternatives are eliminated due to the meddling of an activist court."

Sen. Ernest HollingsSen. Hollings (at right), who is not running for re-election, added that, "While regrettable, the outcome here is not surprising given this Court's consistent hostility to the pro-competitive provisions of the 1996 Act. Fortunately, the D.C. Circuit has been overturned in the past by the Supreme Court on these important issues, and I expect it will be again. I look forward to working with the Commission to achieve that end."

Similarly, Russell Frisby, CEO of the CompTel/ASCENT wrote in a release that "Unfortunately, the D.C. Circuit's decision turns back the clock to the days when monopoly control of the marketplace gave consumers nothing more than poor service, high prices and little choice."

Frisby added that "It is the ultimate responsibility of the FCC and states to protect consumers, encourage economic development, and ensure that competition is allowed to develop, rather than being quashed by a deregulated monopoly. Today a federal appeals court has usurped that responsibility. Unless the FCC takes the necessary action and seeks Supreme Court review, we fear that consumers and our nation's economy will bear the brunt of the court's decision."

Sprint also issued a release. It stated that "Sprint laments the fact that the decision will inevitably prolong the regulatory uncertainty that has existed since the Telecommunications Act of 1996 was signed into law more than eight years ago. The court's decision will make it more difficult to foster local competition -- particularly in the mass market -- through the use of incumbent local carrier network elements at cost-based prices, contrary to what Sprint believes Congress intended in the '96 Act. Sprint has always favored full and fair competition in all markets and will continue to use its expanding local metropolitan area networks and its nationwide, state-of-the-art wireless and fiber optic networks to bring a full range of all-distance services to consumers and to business of all sizes."

Mark Cooper of Consumer Federation of America (CFA) wrote that "In 60 days, phone bills could go up because the court has eliminated the rules on which 75 percent of those offering competitive service use to offer alternative service, unless the courts reinstate the rule or the FCC comes up with an alternative to promote competition. There is no doubt that the billions of dollars of savings will start to disappear as competitors are forced to shut down their operations".

Likewise, Chris Murray of the Consumers Union wrote that "Today's decision effectively pulls the plug on tens of millions of consumers who have chosen competition. Carriers offering those consumers competition will now be subject to death by a thousand cuts from local telephone monopolies who no longer have to offer competitors a turn-key wholesale bundle".

In contrast, Commissioner Charles Davidson of the Florida Public Services Commission stated in a release that "The FCC clearly had a legal obligation not to add unbundled network elements to the national list unless, after the appropriate analysis, the FCC finds impairment.  The FCC did not fulfill that obligation in the TRO, opting instead to punt the issue to the states."

Charles DavidsonDavidson (at left), who is one of the more market oriented state regulators, added that "The ruling returns the decision to the FCC -- where many of us thought it belonged from the start ... There is no question that the issues to be addressed in the Triennial Review proceeding are vital to ensuring sustainable, economic competition in the telecommunications industry and should be addressed from a national perspective."

Walter McCormick, P/CEO of the U.S. Telecom Association (USTA), wrote in a statement that "All along USTA has argued that where real competition exists, government-managed competition on such heavily subsidized terms as UNE-P amounts to nothing short of corporate welfare for companies that make little or no investments of their own in the local communities where they turn a profit."

He added that "It is our hope that this decision marks the last gasp of outdated 20th century economic regulations that have no business governing the future of technology and innovation and its promise to consumers and to our economy."

Randolph May of the Progress & Freedom Foundation (PFF) wrote that "The court's decision is another strong judicial rebuke to the FCC's seven-year adherence to an excessive unbundling regime. The court's clear holding on the Commission's delegation of decision-making authority to the state commissions is particularly noteworthy. And, the court's repeated recognition that excessive unbundling stifles infrastructure investment, contrary to one of the 1996 Act's paramount goals, is key. With the ball back in the FCC's court, that agency is once again at a crucial crossroads. This time, it must heed what the courts have been telling it for years, and put in place a lawful and less regulatory facilities-sharing regime."

Steve Davis, an SVP at ILEC Qwest wrote in a release that "We applaud the court’s decision, which allows companies like Qwest to put their full focus on meeting the needs of customers. Today’s decision will soon free customers of mandates that force them to subsidize the operations of Qwest’s competitors. We look forward to working with the FCC on new rules that benefit all telecommunications customers."

House Rules Committee Adopts Rule for Consideration of USPTO Fee Bill

3/2. The House Rules Committee adopted a rule for consideration of HR 1561, the "United States Patent and Trademark Fee Modernization Act of 2003". This bill would raise fees collected by the U.S. Patent and Trademark Office (USPTO), and end the practice of diversion of fees to subsidize other government programs.

The rule provides for consideration of the bill as reported by the House Judiciary Committee.

It provides that three amendments shall be in order. First, the rule makes in order an amendment [5 page PDF scan] offered by Rep. James Sensenbrenner (R-WI), the Chairman of the House Judiciary Committee. It addresses fee diversion and other issues.

The fee diversion language is similar, but not identical, to the language of an amendment that he offered back on February 10, 2004.

The key language of the Sensenbrenner amendment, as approved for consideration by the Rules Committee on March 2, provides that "There is established in the Treasury a Patent and Trademark Fee Reserve Fund. If fee collections by the Patent and Trademark Office for a fiscal year exceed the amount appropriated to the Office for that fiscal year, fees collected in excess of the appropriated amount shall be deposited in the Patent and Trademark Fee Reserve Fund. After the end of each fiscal year, the Director shall make a finding as to whether the fees collected for that fiscal year exceed the amount appropriated to the Patent and Trademark Office for that fiscal year. If the amount collected exceeds the amount appropriated, the Director shall, if the Director determines that there are sufficient funds in the Reserve Fund, make payments from the Reserve Fund to persons who paid patent or trademark fees during that fiscal year. The Director shall by regulation determine which persons receive such payments and the amount of such payments, except that such payments in the aggregate shall equal the amount of funds deposited in the Reserve Fund during that fiscal year, less the cost of administering the provisions of this paragraph."

The rule also makes in order an amendment [4 page PDF scan] offered by Rep. Don Manzullo (R-IL), the Chairman of the House Small Business Committee, that establishes an inflation adjusted freeze on all fees for micro-entities, which are defined as firms or independent inventors with up to 15 employees and net worth not exceeding $2 Million.

The rule also makes in order an amendment [PDF] offered by Rep. Sheila Lee (D-TX) regarding outsourcing. It provides that "the Director shall ensure that a substantial number of searches by qualified search authorities that are commercial entities are conducted by persons that -- (i) if individuals, are United States citizens; and (ii) if business concerns, are organized under the laws of the United States or any State, or are small business concerns, minority-owned business concerns, or business concerns that are owned by women."

See also, related stories:
 • "House Scheduled to Take Up USPTO Fee Bill" in TLJ Daily E-Mail Alert No. 846, March 1, 2004.
 • "House Delays Consideration of USPTO Fee Bill" in TLJ Daily E-Mail Alert No. 835, February 12, 2004.
 • "House to Vote on Bill to End USPTO Fee Diversion" in TLJ Daily E-Mail Alert No. 832, February 9, 2004.
 • "House Intellectual Property Caucus Advocates Ending USPTO Fee Diversion" in TLJ Daily E-Mail Alert No. 762, October 21, 2003.
 • "House Judiciary Committee Approves USPTO Fee Bill" in TLJ Daily E-Mail Alert No. 695, July 10, 2003.
 • "House CIIP Subcommittee Holds Hearing on USPTO Fees" in TLJ Daily E-Mail Alert No. 637, April 4, 2003.

Washington Tech Calendar
New items are highlighted in red.
Wednesday, March 3

The House will meet at at 10:00 AM for legislative business. It may consider HR 1417, the "Copyright Royalty and Distribution Reform Act of 2003", under suspension of the rules. It may also consider HR 1561, the "United States Patent and Trademark Fee Modernization Act of 2003", subject to a rule. See, Republican Whip Notice.

The Senate will meet at 9:30 AM for morning business. At 10:30 AM it will begin consideration of S 1637, the "Jumpstart Our Business Strength (JOBS) Act". This bill would replace the Foreign Sales Corporation (FSC) and Extraterritorial Income (ETI) tax regimes that the World Trade Organization (WTO) has ruled to be illegal export subsidies.

9:30 AM. The Senate Armed Services Committee's Subcommittee on Emerging Threats and Capabilities will hold a hearing on the role of defense science and technology in the global war on terrorism and in preparing for emerging threats in review of the defense authorization request for fiscal year 2005. Location: Room 325, Russell Building.

10:00 AM. The House Financial Services Committee will hold a hearing on Hearing on HR 3574, the "Stock Option Accounting Reform Act". Location: Room 2128, Rayburn Building.

10:30 AM. The Senate Appropriations Committee's Defense Subcommittee will hold a hearing on President Bush's proposed budget for the Department of Defense. Location: Room 192, Dirksen Building.

1:00 PM. The House Government Reform Committee's Subcommittee on Technology, Information Policy, Intergovernmental Relations and the Census will hold a hearing titled "Federal Information Technology Investment Management, Strategic Planning, and Performance Measurement". Press contact: Bob Dix at 202 225-6751. Location: Room 2154, Rayburn Building.

1:15 - 3:00 PM. The Brookings Institute will host an event titled "Preparing America to Compete Globally: A Forum on Offshoring". The speakers will include Sen. Max Baucus (D-MT), Ron Nessen (Brookings), Lael Brainard (Brookings), William Dickens (Brookings), and E.J. Dionne (Brookings). See, notice. Location: Brookings Institute, Falk Auditorium, 1775 Massachusetts Ave., NW.

4:30 PM. Treasury Secretary John Snow will speak at the George Washington School of Law. Location: Jacob Burns Moot Court Room, 2000 H Street, NW.

Deadline to submit comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) regarding modifying it frequency coordination rules to promote sharing between non-geostationary satellite orbit (NGSO) and geostationary satellite orbit (GSO) fixed-satellite service (FSS) operations and various terrestrial services operating in several frequency bands. This NPRM considers a joint proposal submitted by SkyBridge and the Fixed Wireless Communications Coalition (Growth Zone Proposal). This is ET Docket No. 03-254.

Thursday, March 4

The House will meet at at 10:00 AM for legislative business. See, Republican Whip Notice.

9:30 - 10:30 AM. Federal Communications Commission (FCC) Commissioner Kevin Martin will host a "press breakfast". For more information, please contact Jason Williams at 202-418-2105. Location: FCC, 445 12th St. SW, Room 8-A204 (8th Floor).

9:30 AM. The Senate Judiciary Committee will hold an executive business meeting. See, notice. Location: Room 226, Dirksen Building.

10:30 AM. Rep. Joe Barton (R-TX), the new Chairman of the House Commerce Committee, and Subcommittee Chairmen, will announce a new Committee structure. For more information, contact Samantha Jordan at (202) 225-2002. Location: Room 2123, Rayburn Building.

12:00 NOON - 2:00 PM. The Progress and Freedom Foundation (PFF) will host a luncheon. The speakers will be Charlie Ergen (Ch/CEO of EchoStar Communications), Blair Levin (Legg Mason Equity Research), Rudy Baca (Precursor Group), and Paul Gallant (Schwab's Washington Research Group). RSVP to Brooke Emmerick at 202 289-8928 or The PFF notice also states that "Members of the media should contact David Fish at 202-289-8928 or" Location: Rotunda Room, Ronald Reagan Building and International Trade Center, 1300 Pennsylvania Ave., NW.

10:00 AM. The House Appropriations Committee's Subcommittee on Homeland Security will hold a hearing on the proposed budget for the Department of Homeland Security (DHS). Secretary Tom Ridge is scheduled to testify. Location: Room 2359, Rayburn Building.

1:00 PM. The House Appropriations Committee's Subcommittee on Commerce, Justice, and State, the Judiciary, and Related Agencies will hold a hearing on the proposed budget for the Department of Justice (DOJ). Location: Room H-309, Capitol Building.

Friday, March 5

12:15 PM. The Federal Communications Bar Association's (FCBA) Wireless Practice Committee will host a luncheon. The topic will be "Meet CTIA's New Federal Regulatory and Congressional Affairs Senior Team". The price to attend is $15. RSVP by 5:00 PM on March 3 to Wendy Parish at For more information contact Laura Phillips at 202 842-8891. Location: Sidley Austin, 1501 K Street, NW, 6th Floor.

Sunday, March 7

Day one of a four day meeting of the National Association of Regulatory Utility Commissioners (NARUC). For more information, contact Michelle Malloy at 202 898-2214 or Wendy Harris at 202 898-2209. See, notice. Location: Renaissance Washington Hotel.

Monday, March 8

The Supreme Court will begin a recess. (It will return on March 22, 2004.)

9:00 AM - 4:00 PM. The National Institute of Standards and Technology's (NIST) Computer Security Division will host a conference titled "Recommended Security Controls for Federal Information Systems". The price to attend is $75. See, notice. Location: NIST, Gaithersburg, MD.

12:15 PM. The Federal Communications Bar Association's (FCBA) Mass Media and Legislation Committees will host a brown bag lunch. The topic will be "What's Going on for Broadcasters on the Hill?" For more information, contact John Logan at 202 776-2640 or, or Michale Nilsson at 202 730-1334 or Location: Wiley Rein & Fielding, 1750 K Street, NW, 10th Floor.

Day two of a four day meeting of the National Association of Regulatory Utility Commissioners (NARUC). For more information, contact Michelle Malloy at 202 898-2214 or Wendy Harris at 202 898-2209. See, notice. Location: Renaissance Washington Hotel.

Deadline to submit reply comments to the Federal Communications Commission (FCC) regarding its proposed rules regarding use of satellite earth stations on board vessels in the 5925-6425 MHz, 3700-4200 MHz, 14.0-14.5 GHz and 11.7-12.2 GHz bands. The NPRM is FCC 03-286 in IB Docket No. 02-10. See, notice in the Federal Register, January 22, 2004, Vol. 69, No. 14, at Pages 3056 - 3064.

Deadline to submit reply comments to the Federal Communications Commission (FCC) its request that parties refresh the record regarding reconsideration of rules adopted in the 1999 access reform docket. This is CC Docket Nos. 96-262, 94-1, 98-157, and CCB/CPD File No. 98-63, adopted August 5, 1999, and released August 27, 1999. See, notice in the Federal Register, January 21, 2004, Vol. 69, No. 13, at Pages 2862 - 2863.

Deadline to submit comments to the National Institute of Standards and Technology (NIST) and National Telecommunications and Information Administration (NTIA) regarding Internet Protocol version 6 (IPv6). See, notice in the Federal Register, January 21, 2004, Vol. 69, No. 13, at Pages 2890 - 2899. See also, story titled "NTIA and NIST Request Comments on IPv6", TLJ Daily E-Mail Alert No. 819, January 20, 2004.

Tuesday, March 9

10:00 AM. The Senate Finance Committee will hold a hearing titled "The Administration's International Trade Agenda". U.S. Trade Representative (USTR) Robert Zoellick will testify. Location: Room 215, Dirksen Building.

12:15 PM. The Federal Communications Bar Association's (FCBA) Cable Practice Committee will host a brown bag lunch. The topic will be the Federal Communications Commission's (FCC) plug & play and broadcast flag rules. The speakers will be Susan Mort (FCC), John Wong (Division Chief of the FCC's Media Bureau's Engineering Division) and Michael Lance (Deputy Division Chief of the ED). For more info contact Frank Buono at RSVP to Wendy Parish at Location: Willkie Farr & Gallagher, 1875 K St., NW, 2nd Floor.

1:30 - 3:00 PM. The WRC-07 Advisory Committee's Informal Working Group 1: Terrestrial and Space Science Services will meet. See, notice [PDF]. Location: Federal Communications Commission (FCC), 445 12th Street, SW, Conference Room #5 (8th Floor, Room 8-B411).

Day one of a three day conference hosted by the National Institute of Standards and Technology (NIST) and the Federal Information Systems Security Educators' Association (FISSEA) titled "Awareness, Training and Education: The Driving Force Behind Information Security". The price to attend is $365. See, notice. Location: Inn and Conference Center, University of Maryland University College (UMUC), 3501 University Boulevard East, Adelphi, MD.

Day three of a four day meeting of the National Association of Regulatory Utility Commissioners (NARUC). For more information, contact Michelle Malloy at 202 898-2214 or Wendy Harris at 202 898-2209. See, notice. Location: Renaissance Washington Hotel.

House Subcommittee Holds Hearing On Civil Rights Division

3/2. The House Judiciary Committee's Subcommittee on the Constitution held an oversight hearing on the Department of Justice's (DOJ) Civil Rights Division (CRD).

The sole witness at the hearing was Rene Acosta, the Assistant Attorney General in charge of the CRD. He did not raise any technology related issues in his oral testimony. Nor did any members of the Subcommittee raise any technology related issues. Democrats focused on redrawing of Congressional boundaries in the state of Texas. Republicans focused on access to physical public facilities. Rep. Tom Feeney (R-FL) expressed concern that the ADA is "endowing the trial lawyers" rather than facilitating disabled access.

The CRD occasionally takes actions that affect technology, such as asserting that the American's with Disabilities Act (ADA), which is codified at 42 U.S.C. §§ 12101, et seq., applies to web sites, and that interactive computer services may be held liable for violation of various civil rights statutes for statements posted by others, notwithstanding 47 U.S.C. § 230(c)(1).

Rene AcostaAcosta (at right) did make one statement is his prepared testimony that referenced "information technology". He wrote that "As one of his first acts, the President ordered the Executive branch to live up to the promises the laws have made to Americans with disabilities. The New Freedom Initiative harnesses the resources and energy of all of the Executive Branch agencies whose programs affect the lives of people with disabilities. It advances accessibility and opportunity in numerous areas including employment, public accommodations, commercial facilities, information technology, telecommunications services, housing, schools, and voting."

The then Assistant Attorney General in charge of the Civil Rights Division, Deval Patrick, wrote a letter on September 9, 1996 to Sen. Tom Harkin (D-IA) in which he stated that "The Americans with Disabilities Act (ADA) requires ... places of public accommodation to furnish appropriate auxiliary aids and services where necessary to ensure effective communication with individuals with disabilities ... Covered entities under the ADA are required to provide effective communication, regardless of whether they generally communicate through print media, audio media, or computerized media such as the Internet. Covered entities that use the Internet for communications regarding their programs, goods, or services must be prepared to offer those communications through accessible means as well." Patrick wrote that web site operators could comply by providing audio tapes and braille copies of their web sites.

The Subcommittee on the Constitution held a hearing four years ago on web sites and the ADA. See, story titled "Do Web Sites Violate the Americans with Disabilities Act?", February 10, 2000.

The application of the ADA to web sites is also the subject of private litigation. On October 18, 2002, the U.S. District Court (SDFl) issued its Order Granting Defendant's Motion to Dismiss in Access Now v. Southwest Airlines, holding that the Americans with Disabilities Act (ADA) ban on discrimination in public accommodations does not apply to Southwest's web site. The plaintiff complained that blind people cannot read web pages. See, story titled "District Court Holds ADA Does Not Apply to Web Site" also published in TLJ Daily E-Mail Alert No. 538, October 30, 2002.

Access Now has appealed to the U.S. Court of Appeals (11thCir). Oral argument was held on November 6, 2003. This is App. Ct. No. 02-16163-BB. See also, amicus brief of the American Association of People with Disabilities, and other disabilities groups, urging reversal. See also, amicus brief [PDF] of the US Chamber of Commerce urging affirmance, and amicus brief of the World Wide Web Consortium (W3C).

See also, Rendon v. ValleyCrest, in which the U.S. Court of Appeals (11thCir) held that ABC and its production company, ValleyCrest, violated the ADA when they used a telephone screening process to select contestants for a TV program titled "Who Wants to Be a Millionaire". The plaintiffs had hearing impairments or upper body mobility disabilities that affected their ability to use telephones. The Appeals Court issued its opinion on June 18, 2002 holding that ValleyCrest's telephone selection process was a "place of public accommodation" under the ADA.

The DOJ's CRD is not a party to these actions. However, the CRD did recently bring an internet related housing discrimination action. See, story titled "DOJ Settles Case Against Interactive Computer Service" in TLJ Daily E-Mail Alert No. 808, December 31, 2003.

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