9/2. The Federal Communications Commission (FCC) announced the agenda [4 pages in PDF] for its meeting on Thursday, September 9, 2004.

AWS/3G. The agenda states that the FCC will consider a Sixth Report and Order, Third Memorandum Opinion and Order, and Fifth Memorandum Opinion and Order concerning spectrum for the provisions of new services, including Advanced Wireless Services (AWS).

The FCC's agenda states that this item involves four proceedings. First, this item pertains to "Amendment of Part 2 of the Commission's Rules to Allocate Spectrum Below 3 GHz for Mobile and Fixed Services to Support the Introduction of New Advanced Wireless Services, including Third Generation Wireless Systems". This is ET Docket No. 00-258.

Second, this item pertains to "Petition for Rulemaking of the Wireless Information Networks Forum Concerning the Unlicensed Personal Communications Service". This is RM-9498. Third, this item pertains to "Petition for Rulemaking of UTStarcom, Inc., Concerning the Unlicensed Personal Communications Service". This is RM-10024. Fourth, this item pertains to "Amendment of Section 2.106 of the Commission's Rules to Allocate Spectrum at 2 GHz for use by the Mobile-Satellite Service". This is ET Docket No. 95-18.

The FCC will also consider a Notice of Proposed Rulemaking (NPRM) proposing licensing, technical, and operational rules to govern the use of additional spectrum designated for Advanced Wireless Services (AWS) in the 1915-1920 MHz, 1995-2000 MHz, 2020-2025 MHz, and 2175-2180 MHz bands.

Intermodal Number Porting. The FCC will consider a Second Further Notice of Proposed Rulemaking (2ndFNPRM) seeking comment on the recommendation of the North American Numbering Council (NANC) for reducing the time interval porting between wireline and wireless carriers. This is CC Docket No. 95-116.

Digital Low Power TV. The FCC will consider a Report and Order amending Parts 73 and 74 of the FCC's rules to establish service rules and policies for digital low power television and television translator stations and modifying certain rules applicable to digital Class A television stations.

The FCC adopted its NPRM (FCC 03-198) on August 6, 2003, and released it on August 29, 2003. This is MB Docket No. 03-185. See also, notice in the Federal Register (September 26, 2003, Vol. 68, No. 187, at Pages 55566 - 55573) summarizing this NPRM.

Digital TV and Children Obligations. The FCC will consider a Report and Order concerning the obligation of television broadcasters to serve children. This is MM Docket No. 00-167.

Previously, in this docket, the FCC adopted a NPRM [MS Word] on January 15, 2003, which it released on January 27, 2003, regarding several issues pertaining to conversion to digital television, including public interest obligations. See, especially, paragraphs 107-112 on children's television. The FCC also adopted a NPRM [29 pages in PDF] on September 15, 2000, which it released on October 5, 2000, specifically addressing the children's television obligation of DTV broadcasters.

Other Items. Finally, the FCC will hear one presentation, and consider two written reports. Representatives of the FCC's International Bureau will present an annual report on "satellites, the market and the FCC".

The FCC will consider Ninth Annual Report and Analysis of Competitive Market Conditions with Respect to Commercial Mobile Services. The FCC released its Notice of Inquiry (NOI) requesting data and information on March 24, 2004. See, notice in the Federal Register (April 23, 2004, Vol. 69, No. 79, at Pages 22032 - 22042) summarizing this proceeding. This NOI is FCC 04-38 in WT Docket No. 04-111.

The FCC will consider a Fourth Report concluding its inquiry concerning the deployment of advanced telecommunications capability to all Americans pursuant to Section 706 of the Telecommunications Act of 1996. This is GN Docket No. 04-54.

The meeting will be held on Thursday, September 9, 2004, at 9:30 AM at the FCC in the Commission Meeting Room, TW-C305, at 445 12th Street, SW. Attendance is free, and open to the public. The event will also be webcast by the FCC.

9/2. The Federal Communications Commission (FCC) released the text [pages in PDF] of its second report and order in its proceeding on secondary markets for spectrum usage rights.

The deadline to submit comments in response to the NPRM portion, which addresses the use of private commons, is November 17, 2004. The deadline to submit reply comments is December 17, 2004.

The FCC adopted, but did not release, this item at its July 8, 2004 meeting. See, story titled "FCC Adopts Second Secondary Markets Report and Order" in TLJ Daily E-Mail Alert No. 934, July 9, 2004.

This item is titled "Second Report & Order, Order on Reconsideration, and Second Further Notice of Proposed Rulemaking". It 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.

8/27. The U.S. Court of Appeals (10thCir) issued its divided opinion in Time Warner Entertainment v. Everest Midwest, a case regarding the Federal Communications Commission's (FCC) cable television inside wiring rules.

The Atriums is a mult-unit retirement complex located in Overland Park, Kansas. Time Warner is a cable company, and the successor to TeleCable of Overland Park. Back in 1987 The Atriums and TeleCable entered into a non-exclusive license agreement to provide cable TV service in The Atriums. TeleCable proceeded to install a cable distribution system. The contract provided that TeleCable (now Time Warner) retains property ownership of the equipment installed.

The Atriums now wants to allow Everest Midwest Licensee to compete with Time Warner in the provision of cable television and high speed internet services. At issue in this dispute is access to home run wiring.

The Atriums demanded Time Warner elect to abandon, sell, or remove its home run wires in The Atriums which were not currently being used by Time Warner subscribers, pursuant to FCC regulations.

The home run wiring is the wires that run from the riser through the hallway ceilings on each floor and toward each individual apartment. The riser is the cable that runs into the building through a utility closet on the ground floor, and up through utility closets on each of the floors.

Time Warner refused, arguing that under FCC regulations, a multiple dwelling unit (MDU) owner may invoke the regulations only when the incumbent provider lacks a legally enforceable interest in maintaining the home run wires on the property. Time Warner asserted that is retained a legally enforceable interest.

The relevant regulations were promulgated pursuant to the 1992 Cable Television Consumer Protection and Competition Act, which required the FCC to write rules to foster multichannel video programming distributor (MVPD) competition in MDUs.

47 C.F.R. § 76.804(b) provides, in part, that if a MVPD owns the home run wiring in an MDU and does not "have a legally enforceable right to maintain any home run wire dedicated to an particular unit on the premises against the MDU owner's wishes, the MDU owner may permit multiple MVPDs to compete for the right to use the individual home run wires dedicated to each unit in the MDU".

Time Warner filed a complaint in U.S. District Court (DKansas) against Atrium Partners and Everest Midwest Licensee seeking a declaratory judgment that 47 C.F.R. § 76.804 does not apply to its home run wiring in The Atriums.

The District Court held that Time Warner had a legal right to the home run wires running to apartments of current Time Warner subscribers, but that for the home run wires running to apartments of non-subscribers, The Atriums could invoke § 76.804(b), thereby requiring Time Warner to abandon, sell, or remove those home run wires.

Time Warner appealed. The Appeals Court affirmed.

The Appeals Court applied the state contract law to determine whether the original 1987 contract provided Time Warner a legally enforceable right to maintain home run wiring. Following a lengthy analysis of the contract the Court concluded that the contract gave Time Warner the right to maintain its facilities only when it was providing service to a tenant.

The Court also noted that "Time Warner is required, under the new FCC regulations, to sell, abandon, or remove home run wiring which it lacks a legally enforceable right to maintain. ... As a result, under our reading of the license agreement, should a tenant cancel service with Time Warner, Time Warner would have to sell its lines to a competitor. Similarly, if the tenant then cancelled its subscription with a competitor, and wished to subscribe with Time Warner, that competitor would then be obligated to sell the lines to Time Warner under the regulations."

This case is Time Warner Entertainment Company and Liberty Cable of Missouri, Inc. v. Everest Midwest Licensee, LLC, Atrium Partners, et al., U.S. Court of Appeals for the 10th Circuit, App. Ct. No. 03-3005, an appeal from the U.S. District Court for the District of Kansas, D.C. No. D.C. No. 02-CV-2343-CM  Judge Lucero wrote the opinion, in which Judges McKay joined. Judge Hartz wrote a dissent.

8/27. The Federal Communications Commission (FCC) published in its web site its previously filed brief [46 pages in PDF] for the U.S. Court of Appeals (DCCir) in USTA v. FCC, a case regarding intermodal local number portability. The U.S. Telecom Association, CenturyTel, the National Telecommunications Cooperative Association (NTCA), and the Organization for the Promotion and Advancement of Small Telecommunications Companies (OPASTCO) challenged the FCC's Memorandum Opinion and Order and Further Notice of Proposed Rulemaking [35 pages in PDF] released on November 10, 2003, in which the FCC clarified that the obligation imposed by the Telecommunications Act of 1996, as implemented in the FCC's First Portability Order, requires local exchange carriers (LEC) to port numbers to a commercial mobile radio services (CMRS) carrier in certain circumstances. See, story titled "FCC Releases LNP Order That Addresses Wireline to Wireless" in TLJ Daily E-Mail Alert No. 776, November 11, 2003. This case is U.S. Telecom Association v. FCC and USA, U.S. Court of Appeals for the District of Columbia Circuit, App. Ct. Nos. 03-1414 and 03-1443, petitions for review of a final order of the FCC. In addition, the FCC will hold a meeting on September 9 at which it will consider a Second Further Notice of Proposed Rulemaking seeking comment on the recommendation of the North American Numbering Council (NANC) for reducing the time interval for intermodal porting.

8/26. Attorney General John Ashcroft and others held a press conference to review recent prosecutions and investigations by the Department of Justice, U.S. Postal Service, Federal Trade Commission, U.S. Secret Service, and Bureau of Immigration and Customs Enforcement involving online fraud, identity theft, and computer related crimes  See, Ashcroft transcript.

8/25. The Recording Industry Association of America (RIAA) announced the filing of an additional 152 lawsuits, by its member companies, against individuals, alleging copyright infringement in connection with their use of peer to peer systems. See, RIAA release.

The House and Senate are in recess through September 6.

Deadline to submit nominations to the U.S. Patent and Trademark Office (USPTO) for positions on the Patent Public Advisory Committee (PPAC) and the Trademark Public Advisory Committee (TPAC) with terms that begin November 27, 2004. Nominations must be postmarked or electronically transmitted by September 3, 2004. See, notice in the Federal Register, August 2, 2004, Vol. 69, No. 147, at Pages 46136 - 46137.

Deadline to submit comments to the National Institute of Standards and Technology (NIST) regarding its draft Special Publication 800-72 [60 pages in PDF], titled "Guidelines on PDA Forensics". This publication is designed to assist forensic specialists involved in law enforcement and other investigations in accessing and examining data on Palm OS, Pocket PC and Linux based personal digital assistants (PDAs). Send comments to PDAforensics@NIST.Gov.

Labor Day. The Federal Communications Commission (FCC) and other federal offices will be closed. See, Office of Personnel Management's (OPM) list of federal holidays.

The House and Senate will return from the August recess. The House will meet at 2:00 PM.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its notice of proposed rulemaking (NPRM) regarding the process for designation of eligible telecommunications carriers (ETCs) and the FCC's rules regarding high-cost universal service support. This NPRM is FCC 04-127 in Docket No. 96-45. See, notice in the Federal Register, July 7, 2004, Vol. 69, No. 129, at Pages 40839 - 40843.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its notice of proposed rulemaking (NPRM) regarding the rechannelization of portions of the 17.7-19.7 GHz band. This NPRM is FCC 04-77 in WT Docket No. 04-143. See, notice in the Federal Register, July 7, 2004, Vol. 69, No. 129, at Pages 40843 - 40850.

Deadline to submit comments to the Copyright Office (CO) in response to its notice of proposed rulemaking (NPRM) regarding amendments to the CO's regulations to permit the Library of Congress to record unpublished radio and other audio and audiovisual transmission programs. The CO stated that "regulations already provide for the Library of Congress to obtain copies of unpublished television transmission programs, either by recording fixations or by demanding copies in the form of a transfer, loan or sale at cost. This revised regulation makes similar provisions for audio transmission programs and includes transmission programs made available by radio broadcasts and by digital communications networks such as the Internet." See, notice in the Federal Register, August 5, 2004, Vol. 69, No. 150, at Pages 47396 - 47399.

10:00 AM. The House Judiciary Committee will meet to mark up several bills, including HR 4661, the "Internet Spyware (I-SPY) Prevention Act of 2004", and HR 4077, the "Piracy Deterrence and Education Act of 2004". HR 4661 is the spyware bill sponsored by Rep. Bob Goodlatte (R-VA), Rep. Zoe Lofgren (D-CA), and Rep. Lamar Smith (R-TX), of the Judiciary Committee. The House Commerce Committee has already approved its spyware bill, HR 2929, the "Safeguard Against Privacy Invasions Act" or "SPY Act", sponsored by Rep. Mary Bono (R-CA). See, story titled "House Commerce Committee Approves Spyware Bill" in TLJ Daily E-Mail Alert No. 926, June 25, 2004. The markup is scheduled to continue on Thursday, September 9 at 10:00 AM. Location: Room 2141, Rayburn Building.

10:00 AM. The Senate Judiciary Committee will hold a hearing on judicial nominations. Press contact: Margarita Tapia at 202 224-5225. Sen. Orrin Hatch (R-UT) will preside. Location: Room 226, Dirksen Building.

12:15 PM. The Federal Communications Bar Association's (FCBA) Mass Media Practice Committee will host a brown bag lunch. William Freedman, Deputy Chief of the Federal Communications Commission's (FCC) Enforcement Bureau's (EB) Investigations and Hearings Division, will discuss the FCC's policies and procedures for enforcement of indecency related complaints. No RSVP is required. Location: National Association of Broadcasters (NAB), 1771 N Street NW, Conference Rooms A&B.

5:30 - 6:45 PM. The American Enterprise Institute (AEI) will host a lecture by Sam Peltzman (University of Chicago) titled "Regulation and the Natural Progress of Opulence". He will argue that some regulations make matters worse because of offsetting personal or market behavior, and discuss why some counterproductive regulations remain in place while others are repealed. The lecture will be followed by a reception. See, notice. Location: AEI, Twelfth floor, 1150 17th St., NW.

Deadline to submit comments to the Federal Communications Commission (FCC) in response to its further notice of proposed rulemaking (FNPRM) to determine whether mobile satellite service (MSS) operators using different technologies could share additional spectrum in the 1610-1626.5 MHz band (L-band). This FNPRM is FCC 04-134 in IB Docket No. 02-364 and ET Docket No. 00-258. See, notice in the Federal Register, August 9, 2004, Vol. 69, No. 152, at Pages 48192 - 48194.

9:30 AM. The Federal Communications Commission (FCC) will hold a meeting. See, agenda [4 pages in PDF]. The event will be webcast. Location: FCC, 445 12th Street, SW, Room TW-C05 (Commission Meeting Room).

9:30 AM. The Senate Judiciary Committee will hold an executive business meeting. Press contact: Margarita Tapia at 202 224-5225. See, notice. Location: Room 226, Dirksen Building.

2:00 - 4:30 PM. The Federal Communications Commission (FCC) will hold an event titled "Discussion on the Debt Collection Improvement Act Rules and Rules Governing Applications or Other Request for Benefits by Debtors". See, original notice [PDF] and rescheduling notice [PDF]. Location: FCC, Commission Meeting Room, 445 12th Street, SW.

2:00 - 4:00 PM. The American Enterprise Institute (AEI) will host a demonstration titled "How NASDAQ's Electronic Market Works". The speakers will be Frank Hatheway and Peter Marlyn (NASDAQ) and Peter Wallison (AEI). See, notice. Location: AEI, Twelfth floor, 1150 17th St., NW.

Deadline to submit comments to the National Institute of Standards and Technology (NIST) regarding its notice in the Federal Register that it intends to withdraw Federal Information Processing Standard (FIPS) 46–3, which specified the Data Encryption Standard (DES), and the associated FIPS 74 and FIPS 81. The NIST has determined that "the strength of the DES algorithm is no longer sufficient to adequately protect Federal government information". See, Federal Register, July 26, 2004, Vol. 69, No. 142, at Pages 44509 - 44510. Send comments to descomments@nist.gov.

9:30 - 11:00 AM. The Progressive Policy Institute (PPI) will host a panel discussion titled "Telecommunications Reform: Is the “Network Layers” Approach the Right One?". The speakers will be Rick Whitt (Senior Director of Global Policy and Planning at WorldCom), Link Hoeing (Assistant Vice President, Issues Management and Technology Policy at Verizon), and Rob Atkinson (Director of the PPI's Technology and New Economy Project). Free. Breakfast will be served. Location: PPI, 600 Pennsylvania Ave., SE, Suite 400.

12:00 NOON. Dane Snowden, Chief of the Federal Communications Commission's (FCC) Consumer & Governmental Affairs Bureau, will hold a press briefing. RSVP to Rosemary Kimball at 202 418-0511 or rosemary.kimball@fcc.gov. Location: FCC, 445 12th St., SW, Hearing Room B/Conference Room, TW A-402/A-442.

Extended deadline to submit comments to the Federal Communications Commission (FCC) in response to its public notice (DA 04-1690) requesting public comments on constitutionally permissible ways for the FCC to identify and eliminate market entry barriers for small telecommunications businesses and to further opportunities in the allocation of spectrum-based services for small businesses and businesses owned by women and minorities. See, original notice in the Federal Register, June 22, 2004, Vol. 69, No. 119, at Pages 34672 - 34673; and, notice of extension [PDF].

Deadline to submit requests to testify at the September 23 public hearing of the Office of the U.S. Trade Representative (USTR) regarding the USTR's annual report to the Congress on the Peoples Republic of China's compliance with the commitments that it made in connection with its accession to the World Trade Organization (WTO). Requesters must also submit a copy of their written testimony. See, notice in the Federal Register, July 29, 2004, Vol. 69, No. 145, at Pages 45369 - 45370.

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