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April 16, 2004, 9:00 AM ET, Alert No. 878.
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FCC Announces FNPRM and NOI Regarding Digital Audio Broadcasting

4/15. The Federal Communications Commission (FCC), announced, but did not release, a Further Notice of Proposed Rule Making (FNPRM) and Notice of Inquiry (NOI) regarding digital audio broadcasting (DAB).

The FCC issued a short release [PDF] describing the item, and Commissioners Powell, Copps and Adelstein issued their own statements.

Michael PowellFCC Chairman Michael Powell wrote in a separate statement [PDF] that "Today's item represents broadcast radio's version of the digital migration. Like the transition from analog to digital television, the conversion to digital radio will bring exciting new services and choices to the American people. As the digital audio conversion continues, consumers will have the ability to hear surround sound, CD-quality music over the air and will have access to new radio services, such as multi-casting, data services and subscription based services."

The FCC release states that the FCC seeks comment on "what changes and amendments to the FCC's technical rules are necessary to further the introduction of DAB. Specifically, comment is sought on proposals to allow AM nighttime digital service. The FNPRM also asks questions concerning DAB's affect on FM translators. Questions regarding interference are also raised for comment."

The FCC release also states that the FCC seeks comment on "the types of digital services the FCC should permit radio stations to offer. Specifically, should a radio station be allowed to offer a high definition service, a multiplexed service, a datacasting service, or a combination of all of these possibilities? Comment is also sought on whether a radio station should be permitted to offer subscription services." This item also addresses public interest obligations.

Content Protection for Copyrighted Works. The FCC release states briefly that the subject of "digital audio content control" is raised in the NOI.

The Consumer Electronics Association (CEA) opposed addressing this issue in an NPRM. See for example, April 9, 2004 notice [2 pages in PDF] of ex parte meeting.

Similarly, the Consumers Union and Public Knowledge wrote a joint letter [PDF] to the FCC on April 7 in which they stated that "We also understand that this NOI/NPRM will center on proposals advocated by the Recording Industry Association of America (RIAA) that, while nominally concerned with distribution over the Internet, in fact will seek broader restrictions on digital copying and storage of content. In essence, we understand, the RIAA is seeking a ``radio equivalent of the broadcast flag´´ designed to prevent consumer recording of broadcasts. Public Knowledge and Consumers Union urge that the Commission avoid a rush to judgment in this matter, and that the Commission consider the question of mandatory content protection for digital radio in a Notice of Inquiry rather than in an NPRM, if at all."

The comments submitted in this proceeding that published in the FCC web site do not include any comments (or letter, notices of ex parte communications, or other items) from the RIAA.

Michael Petricone of the CEA stated in a release after the FCC's public meeting on April 15 "We are pleased the FCC wisely decided today to restrict discussion of digital radio copy protection to a Notice of Inquiry". He added that the RIAA , and that has entered this debate at the eleventh hour -- the standard setting process for digital radio has been underway for over a decade -- seeking a government mandate precluding, limiting, or charging for the private, noncommercial home recording of digital radio programs."

Mike Godwin of Public Knowledge stated in a release that "The RIAA has boldly declared that a radio flag would result in a ``buy button´´ on every radio, which consumers would have to use every time they want to record a song. This notion is completely at odds with the well-established rights of Americans to use digital media, and to enjoy broadcast radio content. These rights include those established in the Audio Home Recording Act of 1992, which preserved the ability of consumers to make copies for personal use whether from a recorded product or 'from a transmission.' We hope and believe that the Commission will conclude that a radio flag is neither necessary nor lawful."

See also, statement [PDF] by Commission Michael Copps, and statement [PDF] by Commissioner Jonathan Adelstein.

This item is FCC 04-99 in MB Docket No. 99-325. The FCC release states that the deadline for comments is June 16, 2004, and that the deadline for reply comments is July 16, 2004. For more information, contact Ben Golant at 202 418-7111 or

FCC Announces Report and Order Regarding Use of RFID with Shipping Containers

4/15. The Federal Communications Commission (FCC), announced, but did not release, a Third Report and Order regarding radio frequency identification (RFID) systems for use in conjunction with commercial shipping containers.

The FCC issued a short press release [PDF] that describes the item. It states that "An RFID system consists of a tag mounted on the item to be identified and a device that receives information transmitted from the tag. The Commission's rules permit RFID systems to be operated on a number of frequency bands, subject to limitations on their maximum signal level and transmission duration. These limitations constrain the range and information transfer rates of RFIDs."

The FCC release also states that the Report and Order "increases the maximum signal level permitted for RFID systems operating in the 433.5-434.5 MHz band to facilitate more reliable transmissions with greater range than the rules previously allowed. The 433 MHz band is available for unlicensed operation in many countries around the world, thus enabling manufactures to produce a single model of a device for use in both the United States and other countries. The Order also increases the maximum permitted transmission duration for these RFID systems from one second to 60 seconds, resulting in a sixty-fold increase in the amount of data that can be transmitted, thus facilitating the scanning of the contents of an entire shipping container. To minimize the risk of interference to authorized communication services, operation of RFID systems with higher power and longer transmission duration is limited to commercial shipping containers in commercial and industrial areas."

FCC Chairman Michael Powell wrote in a separate statement [PDF] about several issues, including privacy. He stated that "today’s ruling is narrowly tailored. The technical and operational rules we adopt today allow higher-powered/longer-duration RFID tag use on limited frequencies, and only in commercial and industrial environments."

This item is FCC 04-98 in ET Docket No. 01-278. For more information, contact Hugh Van Tuyl at 202 418-7506 or

NTIA's Gallagher Writes Senate Regarding Reallocating Spectrum for 3G Use

4/15. Michael Gallagher, the acting head of the National Telecommunications and Information Administration (NTIA), wrote a letter to Vice President Dick Cheney, in his capacity as President of the Senate, regarding "further actions needed in the allocation of spectrum to the civilian sector for the effective deployment of third generation (3G) wireless devices in the United States".

Mike GallagherGallagher (at right) wrote that "three major actions that should be taken to complete to make the deployment of 3G services optimally possible: (1) enactment of the President’s proposal to create a spectrum relocation fund; (2) completion of the FCC’s rules to identify spectrum for some Federal operations that must relocate; and (3) an auction scheduled by the FCC."

Spectrum Allocation Fund. HR 1320, the "Commercial Spectrum Enhancement Act", would create a spectrum relocation fund.

Gallagher wrote that "The Administration strongly supports legislation that would change the reimbursement process by creating a relocation fund using auction proceeds. H.R. 1320, as passed by the House, would greatly streamline the reimbursement process, and thus, speed relocation of Federal agencies and private sector access to the spectrum. NTIA urges Congressional enactment of this legislation this year."

The House passed its version of HR 1320, on June 11, 2003. See, stories titled "House Subcommittee Holds Hearing On Commercial Spectrum Enhancement Act" in TLJ Daily E-Mail Alert No. 631, March 26, 2003; "House Subcommittee Approves Spectrum Relocation Fund Bill" in TLJ Daily E-Mail Alert No. 641, April 10, 2003; "House Commerce Committee Passes Spectrum Relocation Bill" in TLJ Daily E-Mail Alert No. 653, May 1, 2003; and "House Passes Commercial Spectrum Enhancement Act" in TLJ Daily E-Mail Alert No. 679, June 12, 2003.

The Senate Commerce Committee passed its version of HR 1320 on June 26, 2003. However, the full Senate has yet to pass a bill. See, story titled "Senate Commerce Committee Approves Commercial Spectrum Enhancement Act" in TLJ Daily E-Mail Alert No. 689, June 27, 2003.

FCC Rules. The Federal Communications Commission (FCC) has an open rulemaking proceeding to make spectrum available to federal users that will be displaced from the 1710-1850 MHz band to make it available for advanced wireless services. See, Fourth Notice of Proposed Rulemaking [49 pages in PDF]. This is FCC 03-134 in ET Docket No. 00-258 and WT Docket No. 02-8. The comment period closed on December 1, 2003.

See also, notice in the Federal Register, September 2, 2003, Vol. 68, No. 169, at Pages 52156 - 52168, and stories titled "FCC Releases NPRM Regarding Allocating Spectrum to DOD to Replace Spectrum Allocated for 3G Services" in TLJ Daily E-Mail Alert No. 694, July 9, 2003, and "FCC Sets Deadlines for Comments Regarding Spectrum Reallocations Relating to 3G Services" in TLJ Daily E-Mail Alert No. 731, September 3, 2003.

Gallagher wrote that "the FCC and NTIA must complete the necessary identification of frequencies in other bands to which Federal government systems can relocate. NTIA has identified frequencies in the 7 and 8 GHz bands for Federal government microwave systems to move. The FCC has also initiated a proceeding to make spectrum available in other bands for certain other Federal systems. The comment period for this rulemaking ended on December 1, 2003. It is anticipated that the FCC will issue final rules shortly."

FCC Auction. Gallagher wrote that "the FCC must schedule an auction to license this spectrum by competitive bidding. NTIA, however, would not support such an action until identification of alternative frequencies for the affected Federal systems has been completed."

More States Join Antitrust Suit Against Oracle

4/15. The Department of Justice's (DOJ) Antitrust Division, and several state plaintiffs, filed an amended complaint [PDF] with the U.S. District Court (NDCal) in US v. Oracle. This amended complaint is substantially identical to the original complaint filed on February 26, 2004. However, the amended complaint adds three additional state plaintiffs: Connecticut, Michigan and Ohio.

In February, the U.S. and seven states filed a complaint against the Oracle Corporation alleging that Oracle's proposed acquisition of PeopleSoft, Inc. would lessen competition substantially in interstate trade and commerce in violation of Section 7 of the Clayton Act, which is codified at 15 U.S.C. § 18. The plaintiffs seek an injunction of the proposed acquisition.

See, related stories: "Antitrust Division Sues Oracle to Enjoin Its Proposed Acquisition of PeopleSoft" in TLJ Daily E-Mail Alert No. 846, March 1, 2004; "DOJ and Oracle Agree on Trial Date in Action to Stop Acquisition of PeopleSoft" in TLJ Daily E-Mail Alert No. 854, March 11, 2004; and "District Court Sets June 7 Trial Date in U.S. v. Oracle" in TLJ Daily E-Mail Alert No. 857, March 17, 2004.

This case is U.S., et al. v. Oracle, U.S. District Court for the Northern District of California, D.C. No: C 04-00807 VRW.

FCC Announces NPRM Regarding Unlicensed Use in the 3650-3700 MHz Band

4/15. The Federal Communications Commission (FCC), announced, but did not release, a Notice of Proposed Rulemaking regarding unlicensed use of the 3650-3700 MHz band.

The FCC issued a short release describing this NPRM. It states that "unlicensed devices would be allowed to operate in all, or part, of the 3650 MHz band at higher power levels than usually permitted for unlicensed services, which should enhance the utility of unlicensed devices and services in rural areas. These devices also would be subject to smart (or cognitive) requirements and other safeguards designed to prevent interference to the licensed FSS earth stations now resident in the band."

The FCC release adds that wireless internet service providers (WISPs), and others, "have been asking the Commission for additional spectrum for higher power unlicensed devices in order to more economically provide backhaul links to internet gateways as well as broadband access networks serving individual customers in sparsely populated areas."

FCC Chairman Michael Powell wrote in a separate statement [PDF] that "With protected earth stations primarily on the coasts, this band appears particularly promising for extending broadband service in rural areas, such as by wireless internet service providers. Some of these uses could potentially complement unlicensed operations in other bands, such as 2.4 and 5.8 GHz that could allow greater flexibility and continuity in the creation of devices for consumers. This may be another giant step in our effort to bring affordable broadband services to all Americans."

On December 11, 2002, the FCC announced its Notice of Inquiry [MS Word] in ET Docket No. 02-380 titled "Additional Spectrum for Unlicensed Devices Below 900 MHz and in the 3 GHz Band". 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.

This item is FCC 04-100 in ET Docket Nos. 04-151, 02-380, and 98-237. For more information, contact Neal McNeil a 202 418-2408 or Gary Thayer at 202 418-2290.

Washington Tech Calendar
New items are highlighted in red.
Friday, April 16

The House is in recess until Monday, April 19, 2004.

The Senate is in recess until April 19, 2004.

The Supreme Court is in recess until April 19, 2004.

8:30 AM - 4:30 PM. The New America Foundation will host a conference titled "Pervasive Connectivity: How Unlicensed Spectrum Will Help The World Go Wireless". The event is free. RSVP to Matt Barranca at or 202 986-2700. See, notice. Location: National Guard Association of the United States, One Massachusetts Ave, NW.

Monday, April 19

The House will return from its Spring/Easter recess.

The Senate will return from its Spring/Easter recess.

The Supreme Court will return from the recess that it began on April 5.

10:00 AM. The National Foundation for American Policy (NFAP) will host a press conference regarding outsourcing legislation. For more information, contact Stuart Anderson at 703 532-2540. Location: National Press Club, First Amendment Lounge, 529 14th St. NW, 13th Floor.

The Intellectual Property Owners Association (IPO) will host an event titled "Patent Quality Conference". For more information, contact 202 466-2396 or Location: Ronald Reagan Building and International Trade Center.

Deadline to submit comments to the Federal Communications Commission (FCC) in response to its notice of proposed rulemaking (NPRM) regarding whether certain rules should be repealed or modified because they are no longer necessary in the public interest. The FCC released this NPRM on January 12, 2004. This item is FCC 03-337 in WC Docket No. 02-313. See, notice in the Federal Register, March 18, 2004, Vol. 69, No. 53, at Pages 12814-12826.

Tuesday, April 20

The Supreme Court will hear oral argument in Intel v. AMD, a case regarding the availability of a discovery order from a U.S. District Court, pursuant to 28 U.S.C. § 1782, for a complainant in an antitrust matter before the European Commission. See, Order List [8 pages in PDF] at page 1. See, story titled "Supreme Court Grants Certiorari in Intel v. AMD", also published in TLJ Daily E-Mail Alert No. 776, November 11, 2003; and story titled "9th Circuit Rules on Discovery in U.S. for EC Antitrust Proceeding" in TLJ Daily E-Mail Alert No. 446, June 7, 2002.

10:00 PM. The Senate Governmental Affairs Committee's Subcommittee on Oversight will hold a hearing titled "Pirates of the 21st Century: The Curse of the Black Market". The hearing will review the effectiveness of the federal government's efforts to enforce existing intellectual property rights. See, notice. Location: Room 342, Dirksen Building.

1:00 - 5:00 PM. The U.S. Patent and Trademark Office's (USPTO) Nanotechnology Customer Partnership will meet. RSVP to Jill Warden at 571 272-1267 or See, notice. Location: Conference Center, Rooms 1D70 and 1D80, Jefferson Building, 500 Dulany Street, Alexandria, VA.

2:30 PM. The Senate Governmental Affairs Committee's Subcommittee on Financial Management, the Budget, and International Security will hold a hearing titled "Oversight Hearing on Expensing Stock Options: Supporting and Strengthening the Independence of the Financial Accounting Standards Board". See, notice. Location: Room 342, Dirksen Building.

Extended deadline to submit comments to the Federal Trade Commission (FTC) in response to its notice in the Federal Register requesting comments regarding a National Do Not E-mail Registry. Section 9 of S 877, the "Controlling the Assault of Non-Solicited Pormography and Marketing Act of 2003" (CAN-SPAM Act), requires the FTC to write a report to the Congress on establishing a nationwide Do Not E-Mail Registry. It is due by June 16, 2004. See, story titled "FTC Announces CAN-SPAM Act Rulemaking" in TLJ Daily E-Mail Alert No. 855, March 15, 2004. The notice (setting the original comment deadline of March 31, 2004) is published in the Federal Register, March 11, 2004, Vol. 69, No. 48, at Pages 11775-11782. See also, FTC release summarizing the notice. The notice (extending the deadline to April 20, 2004) is published in the Federal Register, April 9, 2004, Vol. 69, No. 69, at Pages 18851 - 18852.

Wednesday, April 21

7:45 AM. The Federal Communications Bar Association (FCBA) will host a breakfast. The speaker will be John Rogovin, General Counsel of the Federal Communications Commission (FCC). Prices vary. The buffet will begin at 7:45 AM. Location: Mayflower Hotel, 1127 Connecticut Avenue, NW.

10:00 AM. The House Financial Services Committee's (HFSC) Subcommittee on Capital Markets will hold a hearing to evaluate the Financial Accounting Standards Board's (FASB) exposure draft on share-based payments, or stock options, and its effects on publicly traded companies. See, HFSC release. Location: Room 2128, Rayburn Building.

12:00 NOON. The Federal Communications Bar Association's (FCBA) Transactional Practice Committee will host a brown bag lunch titled "M&A Opportunities in Telecom & Media". The speakers will be Michael Price (Evercore Partners) and Chuck Wiebe (BIA Capital). RSVP to Ava Smith 202 371-7201 or Location: Skadden Arps, 700 14th St., NW, 11th Floor.

1:00 - 5:00 PM. Day one of a three day meeting of the National Commission on Libraries and Information Science (NCLIS) will hold a meeting. See, notice in the Federal Register, April 12, 2004, Vol. 69, No. 70, at Page 19240. Location: 1110 Vermont Avenue, NW, Suite 820.

2:00 PM. The House Government Reform Committee's Subcommittee on Technology, Information Policy, Intergovernmental Relations and the Census will hold a hearing titled "Protecting Our Nation’s Cyber Space: Educational Awareness for the Cyber Citizen". For more information, contact Juliana French at 202 225-6751. Location: Room 2154, Rayburn Building.

Deadline to submit comment to the National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) regarding its "Pre-Publication Final" draft [67 pages in PDF] of NIST Special Publication 800-37, titled "Guide for the Security Certification and Accreditation of Federal Information Systems". Comments should be addressed to

Thursday, April 22

9:00 - 10:30 AM and 1:00 - 5:00 PM. Day two of a three day meeting of the National Commission on Libraries and Information Science (NCLIS) will hold a meeting. See, notice in the Federal Register, April 12, 2004, Vol. 69, No. 70, at Page 19240. Location: 1110 Vermont Avenue, NW, Suite 820.

9:30 AM. The U.S. Court Appeals (DCCir) will hear oral argument in Verizon v. FCC, No. 03-1396. Judges Ginsburg, Garland and Roberts will preside. Location: Prettyman Courthouse, 333 Constitution Ave.

Friday, April 23

9:00 AM - 1:00 PM. Day three of a three day meeting of the National Commission on Libraries and Information Science (NCLIS) will hold a meeting. See, notice in the Federal Register, April 12, 2004, Vol. 69, No. 70, at Page 19240. Location: 1110 Vermont Avenue, NW, Suite 820.

10:00 AM. The Federal Communications Commission's (FCC) Technological Advisory Committee will hold a meeting. The agenda includes broadband wireless and spam. See, notice [PDF] and agenda [PDF]. The event will be audio webcast. Location: FCC, Commission Meeting Room, Room TW-C305, 445 12th Street, SW.

More News

4/15. The Federal Trade Commission (FTC) published a notice in the Federal Register announcing that it will hold a one day workshop on uses, efficiencies, and implications for consumers associated with radio frequency identification (RFID) technology. The workshop will be held on Monday, June 21, 2004, from 8:30 AM through 5:30 PM at the FTC's Satellite Building, located at 601 New Jersey Avenue, NW. Requests to participate as a panelist are due by Friday, May 7, 2004. Written comments are due by Friday, May 21, 2004. The FTC has also published a web page for this workshop. See, Federal Register, April 15, 2004, Vol. 69, No. 73, at Pages 20523 - 20525.

4/15. Covad stated that it entered into a three year commercial line sharing agreement with Qwest Communications. Covad added that "This marks the first time a competitive communications carrier and a regional Bell operating company have negotiated commercial terms for access to line sharing since the Federal Communications Commission's (FCC) Triennial Review decision." See, Covad release. FCC Chairman Michael Powell issued a statement in which he wrote that "This agreement demonstrates that even without government compulsion, commercial arrangements negotiated in the market are possible." Also on April 15, MCI WorldCom announced in a release that it "has reached an agreement with Qwest on a framework for transparent and mediated negotiations regarding access to the public telephone network." CompTel/ASCENT issued a release praising Qwest, and encouraging BellSouth, SBC and Verizon to do the same. See also, statement [PDF] by FCC Commissioner Kathleen Abernathy.

4/12. The Federal Communications Commission (FCC) filed its brief [PDF] with the U.S. Court of Appeals (DCCir) in EMR v. FCC, a petition for review of a final order of the FCC promulgating regulations designed to protect individuals from exposure to potentially harmful levels of radiofrequency (RF) radiation. This case is EMR Network v. FCC and USA, U.S. Court of Appeals for the District of Columbia, App. Ct. No. 03–1336.

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