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July 9, 2004, 9:00 AM ET, Alert No. 934.
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FCC Adopts Second Secondary Markets Report and Order

7/8. The Federal Communications Commission (FCC) adopted, but did not release, a report and order in its proceeding on secondary markets for spectrum usage rights.

FCC staff briefly summarized the item at the FCC's July 8 meeting. Commissioners made brief comments, and released brief written statements. The FCC issued a short press release [PDF] describing this item.

This item, titled "Second Report & Order, Order on Reconsideration, and Second Further Notice of Proposed Rulemaking", is FCC 04-167 in Docket No. 00-230.

The FCC opening this proceeding on November 9, 2000 with its original NPRM [61 pages in PDF]. See, TLJ story titled "FCC Discusses Secondary Markets for Wireless Spectrum", and TLJ news analysis titled "Mobile Internet Access Devices and the Internet", both dated November 10, 2000.

On May 15, 2003 the FCC announced that it adopted a R&O and a Further Notice of Proposed Rulemaking (FNPRM) which allows certain FCC spectrum licensees to enter into leasing arrangements with third parties. See, FCC release [4 pages in PDF] and story titled "FCC Adopts Order Allowing Some Secondary Leasing of Spectrum" in TLJ Daily E-Mail Alert No. 663, May 16, 2003. However, the FCC did not release this R&O and FNPRM [198 pages in PDF] until October 7, 2003. See, story titled "FCC Finally Releases R&O and FNPRM in Secondary Spectrum Markets Proceeding" in TLJ Daily E-Mail Alert No. 755, October 8, 2003.

The FCC's July 8 release offers this summary. "In this proceeding’s First Report & Order, adopted in 2003, the Commission implemented rules to introduce spectrum leasing in many wireless services and reduce the review time for transfer/assignment applications. Today, the Commission further streamlined the processing of certain spectrum leasing and transfer/assignment filings by providing for immediate processing of applications and notifications where the parties certify that the proposed transaction meets specific criteria indicating the absence of potential public interest concerns relating to eligibility, use restrictions, foreign ownership, designated entity policies, and competition. Lease filings and transfer/assignment applications that meet these criteria will be eligible for overnight electronic processing, while transactions that do not meet these criteria will be subject to further review under specified timetables, or may be offlined for more detailed review if they raise potentially serious public interest issues.

The release states that the FCC "established a new regulatory option of ``private commons´´ as part of its leasing rules. This option will be available to licensees who wish to provide spectrum access to individual users or groups of users that may not fit squarely within the current options for spectrum leasing or within traditional end-user arrangements."

The release also states that the Second Further NPRM portion of this item seeks "comment on what additional policies could facilitate the deployment of advanced technologies through secondary market arrangements such as spectrum leasing and private commons."

FCC Chairman Michael Powell wrote in a separate statement [PDF] that this item "further enhances these secondary markets by removing unnecessary regulatory roadblocks."

FCC Commissioner Kathleen Abernathy wrote in a separate statement [PDF] that "an open, market-based regulatory approach is the best way to ensure the health of our industry and the robustness of its consumer offerings. Already, we have seen promising activity in the secondary markets for spectrum; in less than five months, at least 54 spectrum leasing applications have been filed. As the markets mature – and as we continue to maintain an open, market-based regulatory approach – I anticipate even greater reliance on our secondary-markets system."

FCC Commissioner Michael Copps, who also dissented from the 2003 R&O, wrote in a separate statement [PDF] that "In Section 310(d), Congress makes clear that no ``station license or any rights thereunder shall be transferred, assigned or disposed of in any manner ... except upon application to the Commission and upon finding by the Commission that the public interest, convenience, and necessity will be served thereby.´´ But the Commission’s ever-expanding secondary market’s policies allow licensees to transfer a significant right -- the right to control the spectrum on a day-to-day basis -- without applying to the Commission and without the requirement of any Commission finding that such transfer serves the public interest." (Emphasis in Copps' written statement.)

See also, separate statement [PDF] of FCC Commissioner Kevin Martin, and separate statement [PDF] of FCC Commissioner Jonathan Adelstein dissenting from the immediate approval provisions for certain transfers.

Steve Largent, P/CEO of the Cellular Telecommunications and Internet Association (CTIA), wrote in a release that the "CTIA fully supports the Commission’s efforts to further facilitate a robust secondary market by enabling wireless carriers to lease spectrum they are not using to other companies." He added that "Allowing wireless carriers the option to enter into secondary market transactions with private parties increases carrier flexibility and reduces costs, resulting in lower prices and improved services for consumers".

Private Commons. The FCC release elaborated that this option "might be attractive to users of advanced devices that are capable of dynamic spectrum access but do not necessarily require use of a licensee’s network architecture. The private commons option enables licensees to make licensed spectrum available for use by these advanced technologies in a manner similar to that by which unlicensed users gain access to unlicensed spectrum under Part 15 of the Commission’s rules, and to do so without the necessity of entering into individual spectrum leasing arrangements."

The release added that the "establishment of a private commons option is not intended to, and does not, affect the rights of users of unlicensed devices or limit the Commission's ability to authorize unlicensed use under Part 15 of its rules."

Gregory Rosston of Stanford University (and a former Deputy Chief Economist at the FCC) testified at a Senate Commerce Committee hearing on March 6, 2003 about the concept of a private commons. He wrote in his prepared testimony [PDF] that "An alternative to the use of lobbying to get additional spectrum set aside for different uses would be to stick to and increase the use of the auction mechanism. In fact, a commons model is consistent with private ownership, competition and auctions. There is no reason why, if there is such a huge demand for unlicensed devices, a single operator or consortium of operators and equipment manufacturers could not bid in an auction for spectrum and then operate a ``private commons.´´ The licensee could sublicense equipment manufacturers and users to operate in the band and try to maximize the use of the band. This would lead to a marketplace solution to the determination of how much spectrum should be available for commons use."

FCC Adopts Report and Order Regarding Unlicensed Devices

7/8. The Federal Communications Commission (FCC) adopted, but did not release, a report and order concerning changes to several technical rules for unlicensed radiofrequency devices contained in Parts 0, 2, and 15 of its rules for unlicensed devices and equipment.

FCC staff briefly summarized the item at the FCC's July 8 meeting. The FCC issued a short press release [PDF] describing this item. This item is FCC 04-165 in ET Docket No. 03-201.

The FCC release states that this R&O "adopts rules to foster introduction of smart antenna technology that can operate at higher power levels without causing increased interference. Smart antennas will allow service to be offered over larger areas with reduced infrastructure costs. Smart antennas also permit a greater number of users to be served within the same spectrum by reusing frequencies in several directions simultaneously."

It adds that the R&O "makes modifications to rules that will facilitate deployment of next-generation Bluetooth devices, which operate at data rates up to three times faster than current devices. The new devices will be backward compatible with existing devices and will not present an interference risk to these devices."

The release also states that "The rule changes will also enable manufacturers and system operators to mix various antennas and radio transmitters without the need to obtain a separate equipment authorization for every combination. This will allow systems to be customized to meet the specific needs of each particular installation, without added costs or delays for additional equipment authorization."

FCC Chairman Michael Powell wrote in a separate statement [PDF] that "Newly-authorized smart antennas provide for increased spectrum efficiency because they allow for greater re-use of the same radio frequencies. They also will allow Wireless Internet Service Providers to pattern their coverage areas in a way that will best suit the needs of their customers in both rural and high-density areas."

The FCC adopted its NPRM on September 10, 2003. See, FCC release [PDF]. See also, story titled "FCC Announces NPRM Regarding Unlicensed Devices" in TLJ Daily E-Mail Alert No. 739, September 15, 2003. The FCC released the NPRM [35 pages in PDF] on September 17, 2003. This NPRM is FCC 03-223. See also, story titled "FCC Announces Deadlines for Comments on Unlicensed Devices NPRM" in TLJ Daily E-Mail Alert No. 800, December 16, 2003.

FCC Eliminates Pick and Choose Rule

7/8. The Federal Communications Commission (FCC) adopted, but did not release, a report and order that replaces the FCC's pick and choose rule, for negotiating interconnection agreements, with an all or nothing rule.

The FCC announced that the FCC had approved this item at the FCC meeting of July 8. However, the five Commissioners did not discuss this item, and FCC staff refused to answer questions about it at press conference following the meeting. The FCC merely released a one page press release with only two substantive paragraphs; four Commissioners released statements.

This Second Report and Order is FCC 04-164 in Docket No. 01-338. This is also the proceeding in which the FCC issued its triennial review order [576 pages in PDF], which was released on August 21, 2003.

This release states that the FCC "adopted an all-or-nothing rule that requires a requesting telecommunications carrier seeking to adopt terms in another carrier's interconnection agreement to adopt the agreement in its entirety, taking all rates, terms, and conditions from the adopted agreement."

The release elaborates that the FCC "based its decision on two key determinations. First, the Order concludes that the current pick-and-choose rule is not compelled by the language of section 252(i) of the Communications Act. Second, the Order finds that the new all-or-nothing rule will promote more give and take in negotiations, which will produce mutually beneficial agreements that will be better tailored to meet carriers' individual needs. In addition, the new rule is expected to reduce negotiation time, expenses, and possible areas of dispute, while at the same time providing adequate protection against potential discrimination. Based on these determinations, the Order concludes that the benefits of adopting the all-or-nothing rule outweigh the burdens, and therefore replaces the pick-and-choose rule."

47 U.S.C. § 252(i) provides that "A local exchange carrier shall make available any interconnection, service, or network element provided under an agreement approved under this section to which it is a party to any other requesting telecommunications carrier upon the same terms and conditions as those provided in the agreement."

The FCC adopted the "pick and choose" rule eight years ago. The Supreme Court upheld it in AT&T v. Iowa Utilities Board, 525 U.S. 366 (1999).

FCC Chairman Michael Powell wrote in a separate statement [PDF] that "One of the Commission's most important goals is to advance competition that is meaningful and sustainable, and that will eventually achieve Congress' goal of reducing regulation and promoting facilities-based competition. As carriers continue their migration away from unbundled network elements and toward increased reliance upon network elements they own and control, they will require more specialized interconnection agreements with incumbent LECs. Today's decision removes a rule that has thwarted those individualized agreements."

FCC Commissioner Kathleen Abernathy wrote in a separate statement [PDF] that "we have endured eight years of pitched regulatory battles and resource-draining litigation, and industry participants of all stripes agree that incumbent LECs and new entrants almost never engage in true give-and-take negotiations." She continued that "the “pick and choose” rule impedes marketplace negotiations and is not necessary to prevent discrimination."

Kathleen AbernathyAbernathy (at right) also wrote that "By requiring that competitors opt into interconnection agreements on an ``all or nothing´´ basis, we ensure that third parties take the bitter with the sweet. In doing so, I am optimistic that we will promote more meaningful negotiations. Given the almost-complete dearth of marketplace deals, this change can only improve negotiations, notwithstanding claims that it will diminish competitors' leverage."

FCC Commissioner Michael Copps wrote in a separate statement [PDF] that "I am not convinced that dismantling the pick-and-choose rule and replacing it with an all-or-nothing approach will usher in a new era of negotiation and unique commercial deals. While statements about enhancing give-and-take negotiation have intuitive appeal, their logic here is thin."

See also, separate statement [PDF] of FCC Commissioner Jonathan Adelstein.

Incumbent local exchange carriers (ILECs) are please with this report and order. Walter McCormick, P/CEO of the U.S. Telecom Association (USTA), wrote in a release that this R&O "will help bring the telecom industry closer to a market-driven environment because it will encourage companies to negotiate commercial agreements in good faith instead of allowing some carriers to exploit the system and will help promote further investment in the nation's communications infrastructure and speed the deployment of innovative services to consumers."

Similarly, BellSouth's Herschel Walker wrote in a release that "The reinterpretation of 'pick and choose' will reduce gamesmanship and thus foster more productive negotiations." He added that "The new regime will allow CLECs and BellSouth to reach interconnection agreements that better meet the unique needs of each CLEC."

In contrast, Russell Frisby, CEO of CompTel/ASCENT complained in a release that "The FCC has once again revised its rules to further limit the choices available to competitive carriers. The FCC's action is an overly broad prohibition on small carriers' ability to opt in to portions of interconnection agreements that have already been determined to be in compliance with the law." He added that "the elimination of 'pick and choose' does nothing to promote commercially negotiated agreements between small competitors and the Bells, which continually wield their control over last-mile facilities in an effort to lock alternative providers out of the market."

House Passes CJS Appropriations Bill

7/8. The House passed HR 4754, the "Commerce, Justice, State and the Judiciary Appropriations Act, 2005" by a vote of 397-18. See, Roll Call No. 346.

The House rejected an amendment offered by Rep. Bernie Sanders (S-VT) pertaining to Section 501 of the Foreign Intelligence Surveillance Act (FISA), which was amended by the USA PATRIOT Act. The amendment failed on a vote of 210-210-1. See, Roll Call No. 339. The vote broke down largely on party lines, with Republicans opposing the amendment, and Democrats supporting it.

The amendment would have added a new Section 801 to the appropriations bill providing that "None of the funds made available in this Act may be used to make an application under section 501 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1861) for an order requiring the production of library circulation records, library patron lists, library Internet records, book sales records, or book customer lists."

§ 215 of the PATRIOT Act rewrote § 501 of the FISA, which is codified in Title 50 as § 1861. It pertains to "Access to Certain Business Records for Foreign Intelligence and International Terrorism Investigations". § 215 (of the PATRIOT Act) replaced §§ 501-503 (of the FISA) with new language designated as §§ 501 and 502.

Currently, § 501 (as amended by § 215) requires that an application to a judge or magistrate "shall specify that the records concerned are sought for an authorized investigation conducted in accordance with subsection (a)(2) to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities." While the statute does not expressly include library records, it is not disputed that library records could be obtained under § 501.

Also, Rep. Butch Otter (R-ID) offered, but later withdrew, an amendment to the appropriations bill that would have amended 18 U.S.C. § 3103a, which pertains to delayed notification of search warrants, which critics refer to as "sneak and peak". This is another provision that was amended by the PATRIOT Act.

More Capitol Hill News

7/7. The House Judiciary Committee's Subcommittee on Courts, the Internet and Intellectual Property amended and approved by voice vote HR 4518, the "Satellite Home Viewer Extension and Reauthorization Act of 2004".

7/8. The House Judiciary Committee's Subcommittee on Courts, the Internet, and Intellectual Property amended and approved HR 4586, the "Family Movie Act of 2004", by a vote of 11-5. This bill would permit home viewers of DVDs to use software that filters out certain types of content. The Subcommittee made minor technical changes to the bill as introduced. The vote roughly followed party lines. Republicans and Rep. Zoe Lofgren (D-CA) voted for the bill. Rep. Howard Berman (D-CA), the ranking Democrat on the Subcommittee, and other Democrats, voted against the bill.

House Commerce Subcommittee Holds Hearing on Stock Options Bill

7/8. The House Commerce Committee's Subcommittee on Commerce, Trade and Consumer Protection held a hearing titled "FASB Proposals on Stock Option Expensing". Members of the Subcommittee disagreed about the merits of the bill, but were in agreement that the House Commerce Committee should aggressively assert jurisdiction on this issue.

This was neither a legislative hearing on HR 3574, the "Stock Option Accounting Reform Act", which was overwhelmingly approved by the House Financial Services Committee last month, nor a markup of the bill. The House Commerce Committee has asserted jurisdiction, but not yet received a referral by the House Parliamentarian.

On March 31, 2004, the Financial Accounting Standards Board (FASB) released a document titled "Exposure Draft, Share-Based Payment, an Amendment of FASB Statements No. 123 and 95" that proposes that companies must expense stock option plans for all employees. The FASB's comment period for the exposure draft ended on June 30, 2004. See, story titled "FASB Proposes Expensing of Stock Options" in TLJ Daily E-Mail Alert No. 867, April 1, 2004.

HR 3574, which is sponsored by Rep. Richard Baker (R-LA), and 129 other members of the House, requires public companies to expense only those stock options granted to the CEO and the next four highest paid officers. It also provides an exemption for small businesses. As for the top five employees, the bill requires companies to follow the FASB standards, but with a zero volatility assumption. The bill also requires the Securities and Exchange Commission (SEC) to promulgate a rule that requires each issuer filing a report under Sections 13(a) or 15(d) of the Securities Exchange Act "to include in such report more detailed information regarding stock option plans", including a discussion of "the dilutive effect of stock option plans".

On June 15, 2004, the House Financial Services Committee approved HR 3574, the "Stock Option Accounting Reform Act", by a vote of 45-13. See, story titled "House Financial Services Committee Approves Stock Options Bill" in TLJ Daily E-Mail Alert No. 919, June 16,  2004. See also, story titled "Capital Markets Subcommittee Approves Stock Options Bill" in TLJ Daily E-Mail Alert No. 897, May 13, 2004.

Rep. Clifford Stearns (R-FL), the Chairman of the Subcommittee, presided. He criticized HR 3574. He asserted that it "may effectively forbid the more than 575 companies that are voluntarily expensing options from doing so in the future." However, he did not cite any section of the bill that imposes this requirement. He also condemned the zero volatility assumption of the bill, for the top five employees, whose stock options must be expensed. He added that "If this legislation moves to the Floor, I would encourage Members on both sides of the issue to support amendments that would cure these two defects."

Rep. Joe Barton (R-TX), the Chairman of the full Committee, refrained from criticizing the bill, and offered support for the rationale behind the bill. He wrote in his prepared statement, which he read at the hearing, that "I am concerned about FASB's proposal. It is difficult to value a stock option at the time it is granted. Sometimes the stock price goes up and the option becomes extremely valuable. Other times, stock price is stagnant and options expire worthless. I don't think we should mandate the expensing of options that turn out to be worthless."

Rep. Joe BartonRep. Barton (at right ) continued that "Financial analysts analyze companies for a living. They are aware of the stock option grants and the impact they have on earnings and presumably have already discounted that into the price of a company's stock. The question then becomes how requiring mandatory expensing will change the valuation of a company? If it does not affect the valuation of a company, what is gained?"

He concluded, in his oral statement, that "What is certain, is that a change to the accounting standards that would require expensing would transform corporate governance, and would change methods of compensation, and possibly impact our international economic competitiveness. That is a very very very serious issue, and needs to be seriously addressed." He added that if the Committee has jurisdiction, "We will work to report a responsible bipartisan bill."

Rep. John Shadegg (R-AZ), who is a cosponsor of HR 3574, praised the bill. He argued that giving employees a stake in their companies is a step in the right direction, and that the FASB proposal to mandate expensing would harm technology companies that now give employees stock options. Rep. Gene Green (D-TX), another cosponsor, also spoke in support of the bill.

Several members of the Subcommittee offered impassioned criticisms of the bill, with frequent references to indictment of Ken Lay, Enron's accounting practices, and accounting fraud at other companies.

Rep. John Dingell (D-MI), the ranking Democrat on the full Committee, was the most vehement. He said, "As for the Baker bill, all I can say is ``What were they thinking?´´ I thought we had enough of phony accounting and its devastating impact on companies, investors, and retirees. It is a case study in why Congress should not be in the business of writing accounting standards."

Rep. Bart Stupak (D-MI) criticized HR 3574. He argued that the Congress should not set accounting standards because "Congress can't balance its own books." Rep. Sherrod Brown (D-OH) also condemned HR 3574.

The Subcommittee heard testimony from four witnesses. David Walker, the head of the General Accounting Office (GAO), opposed HR 3574 in his prepared testimony [8 pages in PDF]. Similarly, Robert Herz, Chairman of the FASB, opposed the bill.

In contrast, former Rep. Rick White (R-WA), who is now the head of two groups involved in this issue -- TechNet and the International Employee Stock Options Coalition -- spoke in support of HR 3574. Steven Mayer, CFO of Human Genome Sciences, also spoke in favor of the bill.

Washington Tech Calendar
New items are highlighted in red.
Friday, July 9

The House is scheduled to meet at 9:00 AM. See, Republican Whip notice.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Chamberlain Group v. Skylink Technologies, No. 04-1118. Location: Courtroom 402, 717 Madison Place, NW.

12:00 NOON. The Cato Institute will host a panel discussion titled "Recommendations for Tort and Class Action Reform". The speakers will be Robert Levy and Mark Moller, both of Cato. Lunch will be served. See, notice and registration page. Location: Room B-339, Rayburn Building.

The Department of Commerce's (DOC) Bureau of Industry and Security will hold a seminar titled "Export Management Systems". The price to attend is $100. For more information, contact Yvette Springer at 202 482-6031. Location: Ronald Reagan Trade Center, Washington DC.

Extended deadline to submit comments to the Federal Trade Commission (FTC) for its June 21, 2004 workshop on the uses, efficiencies, and implications for consumers associated with radio frequency identification (RFID) technology. See, original notice in the Federal Register, April 15, 2004, Vol. 69, No. 73, at Pages 20523 - 20525, and notice [PDF] in the Federal Register (May 24, 2004, Vol. 69, No. 100, at Pages 29540 - 29541) extending the deadline to July 9. See also, FTC web page for this workshop.

Monday, July 12

10:00 AM. The Heritage Foundation will host two panel discussions titled "Scholars & Scribes Review the Rulings: The Supreme Court's 2003-2004 Term". See, notice and registration page. Location: 214 Massachusetts Ave., NE.

6:00 - 8:15 PM. The DC Bar Association's Intellectual Property Law Section, and other sections, will host a continuing legal education (CLE) program titled "Trade Secrets: The Next Level". The speaker will be Milton Babirak of the law firm of Babirak Vangellow & Carr. Prices vary. See, notice. For more information, contact 202-626-3488. Location: D.C. Bar Conference Center, B-1 Level, 1250 H Street, NW.

6:30 PM. The U.S. Telecom Association (USTA) and the Cellular Telecommunications and Internet Association (CTIA) will host an event titled "Communications Good Scout Award Dinner". The dinner will honor Rep. Fred Upton (R-MI), the Chairman of the Subcommittee on Telecommunications and the Internet. The price to attend ranges from $250 to $20,000. Proceeds will go to the National Capital Area Council of the Boy Scouts of America. Location: Renaissance Washington Hotel, 999 9th Street, NW.

Deadline to submit comments to the Federal Communications Commission (FCC) in response to its further notice of proposed rulemaking (FNPRM) regarding Aviation Radio Service. This FNPRM is FCC 03-238 in WT Docket No. 01-289. See, notice in the Federal Register, April 12, 2004, Vol. 69, No. 70, at Pages 19140 - 19147.

Tuesday, July 13

9:30 AM. The North American Numbering Council (NANC) will meet. Location: Federal Communications Commission (FCC), 445 12th Street, SW, Room TW-C305.

9:30 AM. The Senate Commerce Committee will hold a hearings on the proposed reauthorization of the Corporation for Public Broadcasting. See, notice. The hearing will be webcast. Location: Room 253, Russell Building.

Wednesday, July 14

8:30 AM - 12:00 NOON. The DC Bar Association's Intellectual Property Law Section will host a program titled "The ABC's Of Patent, Trademark And Copyright Law". The speakers will be Steven Warner (Fitzpatrick Cella Harper & Scinto), Gary Krugman (Sughrue Mion), John Hornick (Finnegan Henderson), and Aoi Nawashiro (Browdy & Neimark). Prices vary. A breakfast buffet is included. See, notice. For more information, call 202 626-3463. Location: D.C. Bar Conference Center, B-1 Level, 1250 H Street, NW.

9:00 AM - 1:30 PM. The National Telecommunications and Information Administration (NTIA) will host an event titled " Forum: Developing a Safe Place on the Internet for Children". See, NTIA notice and notice in the Federal Register, June 4, 2004, Vol. 69, No. 108, at Pages 31590-31591. Location: Department of Commerce, 1401 Constitution Ave., NW, Room 4830.

10:00 AM. The House Armed Services Committee and the House International Relations Committee will hold a joint hearing on the "Role of Arms Export Policy in the Global War on Terror". The witnesses will be Lincoln Bloomfield (Assistant Secretary of State, Bureau of Political-Military Affairs), Lisa Bronson (Deputy Under Secretary of Defense for Technology Security Policy and Counterproliferation), and Peter Lichtenbaum (Assistant Secretary for Export Administration, Bureau of Industry and Securities, Department of Commerce). The hearing notice does not disclose the extent to which the hearing might focus on the export of items involving information and communications technologies. Location: Room 2118, Rayburn Building.

Thursday, July 15

10:00 AM. The Senate Commerce Committee's Subcommittee on Communications will hold a hearing on implementation of the Nielsen local people meter TV rating system. See, notice. The hearing will be webcast. Location: Room 253, Russell Building.

Congressional Internet Caucus' Advisory Committee will host a panel discussion titled "The DMCA Revisited: What's Fair?". Lunch will be served.

12:15 - 2:00 PM. The Forum on Technology & Innovation (FTI) will host a luncheon discussion titled "The Policy Implications of Open Source Software". The speakers will be Andrew Morton (lead maintainer for the Linux public production kernel), Bill Guidera (Microsoft), Cheryl Bruner (IBM), and Morgan Reed (Association for Competitive Technology). See, notice. Lunch is available at 12:15 PM. The event will be webcast by the FTI. The program will begin at 12:30 PM. Register by 5:00 PM on  July 13 by by fax at 202 682-5150 or at; provide your name, title, office, and e-mail address. Location: Room 902, Hart Building, Capitol Hill.

12:15 PM. The Federal Communications Bar Association's (FCBA) Cable Practice Committee and Young Lawyers Committee will host a brown bag lunch. The topic will be "The Basics of A La Carte Cable Pricing". For more information, contact Natalie Roisman at, or Jason Freidrich at Location: Willkie Farr & Gallagher, 1875 K Street, NW, 2d Floor.

2:00 PM. The House Armed Services Committee's Tactical Air Land Forces Subcommittee will hold a hearing on "Small Business Innovation and Technology". Location: Room 2118, Rayburn Building.

6:00 - 9:30 PM. The DC Bar Association will host a continuing legal education (CLE) program titled "Antitrust Investigations in the Era of Enron and WorldCom". The speakers will include Ray Hartwell (Hunton & Williams), Scott Hammond (Director of Criminal Enforcement, Antitrust Division, Department of Justice), and Donald Klawiter (Morgan Lewis & Bockius). Prices vary. See, notice. For more information, call 202 626-3488. Location: D.C. Bar Conference Center, B-1 Level, 1250 H Street, NW.

Extended deadline to submit comments to the Federal Communications Commission (FCC) in response to its Public Notice (DA 04-1454) regarding a la carte and themed programming and pricing options for programming distribution on cable TV and direct broadcast satellite systems. This is MB Docket No. 04-207. See, notice of extension [PDF].

Friday, July 16

10:30 AM. The Progress and Freedom Foundation (PFF) will host a conference titled "Should the Net's Physical Layer be Regulated?". Christopher Yoo (Vanderbilt Law School) will give the opening address. There will be a panel discussion by Joe Waz (Comcast), Rick Whitt (WorldCom), Adam Thierer (Cato Institute), and Randolph May (PFF). Kenneth Ferree (Chief of the FCC's Media Bureau) will be the luncheon address. See, notice and registration pages. For more information, contact Brooke Emmerick at 202 289-8928 or Press contact: David Fish at 202 775-2644 or Location: Washington Mandarin Oriental hotel, 1330 Maryland Ave., SW.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Further Notice of Proposed Rule Making (FNPRM) and Notice of Inquiry (NOI) regarding digital audio broadcasting (DAB). This item is FCC 04-99 in MB Docket No. 99-325. See, story titled "FCC Announces FNPRM and NOI Regarding Digital Audio Broadcasting" in TLJ Daily E-Mail Alert No. 878, April 16, 2004, and notice in the Federal Register, May 17, 2004, Vol. 69, No. 95, at Pages 27874 - 27885.

People and Appointments

7/6. The Senate confirmed Leon Holmes to be a Judge of the U.S. District Court for the Eastern District of Arkansas by a vote of 51-46. See, Roll Call No. 153.

7/8. Steve Burke was named Chief Operating Officer of Comcast Corporation. He has been President of Comcast Cable since 1998. He previously worked for Walt Disney Company. In addition, Dave Watson was named EVP, Operations at Comcast Cable, and Mike Tallent was named EVP, Finance and Administration at Comcast Cable. See, Comcast release.

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