11/30. President George Bush released a memorandum for the heads of executive departments and agencies titled "Improving Spectrum Management for the 21st Century". It is a plan for a planning process.

It requires various executive branch entities to prepare agency plans; it requires a comprehensive "Spectrum Needs Plan"; it requires a "Federal Strategic Spectrum Plan" and "National Strategic Spectrum Plan"; it requires a "a plan for identifying and implementing incentives that promote more efficient and effective use of the spectrum while protecting national and homeland security, critical infrastructure, and Government services"; it requires a plan for the implementation of previous spectrum reports and progress reports on implementation; and, it plans the roles of the various planners, and their timetable for writing plans.

The just released memorandum contains no new legislative or policy recommendations. Nor does it include any appointments of personnel. It is a management document.

It provides that "Within 6 months of the date of this memorandum, the Office of Management and Budget (OMB) shall provide guidance to the agencies for improving capital planning and investment control procedures to better identify spectrum requirements and the costs of investments in spectrum-dependent programs and systems. Within 1 year of the date of this memorandum, agencies shall implement methods for improving capital planning and investment control procedures consistent with the OMB guidance, including making any modifications to agency capital planning procedures necessary to ensure greater consideration of more efficient and cost-effective spectrum use."

It also provides that "Within 1 year of the date of this memorandum, the heads of agencies selected by the Secretary of Commerce shall provide agency-specific strategic spectrum plans (agency plans) to the Secretary of Commerce that include: (1) spectrum requirements, including bandwidth and frequency location for future technologies or services; (2) the planned uses of new technologies or expanded services requiring spectrum over a period of time agreed to by the selected agencies; and (3) suggested spectrum efficient approaches to meeting identified spectrum requirements. The heads of agencies shall update their agency plans biennially."

It requires the Department of Homeland Security (DHS), within six months, to "identify public safety spectrum needs." It requires the DHS, within one year, to "develop a comprehensive plan, the Spectrum Needs Plan, to address issues related to communication spectrum used by the public safety community, as well as the continuity of Government operations."

It requires the Department of Commerce (DOC), within six months of receiving the above referenced OMB guidance, to "integrate the agency plans and Spectrum Needs Plan, based upon a Department of Commerce framework, into a Federal Strategic Spectrum Plan and shall assist in the formulation of a National Strategic Spectrum Plan." It also requires the DOC to update the National Strategic Spectrum Plan on a biennial basis.

President Bush issued a memorandum titled "Memorandum for the Heads of Executive Departments and Agencies" regarding "Spectrum Policy for the 21st Century" on May 29, 2003. The White House Press Office released it on June 5, 2003. See, stories titled "Bush Issues Spectrum Policy Memorandum" and "Reaction to the President's Spectrum Memorandum" in TLJ Daily E-Mail Alert No. 675, June 6, 2003. The 2003 memorandum announced the creation of the "Federal Government Spectrum Task Force".

Pursuant to the 2003 memorandum, on June 24, 2003, the DOC's National Telecommunications and Information Administration (NTIA) released two reports. See also, NTIA release and story titled "NTIA Releases Reports on Spectrum Management" in TLJ Daily E-Mail Alert No. 929, June 30, 2004.

The first report is titled "Spectrum Policy for the 21st Century -- The President's Spectrum Policy Initiative: Report 1". It is subtitled "Recommendations of the Federal Government Spectrum Task Force". It contains the views of the administration's task force.

The second report is titled "Spectrum Policy for the 21st Century -- The President's Spectrum Policy Initiative: Report 2". It is subtitled "Recommendations from State and Local Governments and Private Sector Responders".

The just released memorandum also requires that the DOC, within six months, "shall establish a plan for the implementation of all other recommendations included in the Reports." It also requires that the DOC, within one year, "shall provide to the President a report describing the progress on implementing the recommendations in the Reports. The report shall include a section prepared by the Secretary of Homeland Security that describes the progress made with respect to public safety spectrum issues. This report shall be updated on an annual basis, until completion of the actions required by this memorandum."

The memorandum assigns no new tasks to the Federal Communications Commission (FCC). However, it provides that certain executive branch entities that are assigned tasks shall consult the FCC.

11/26. SBC's Southwestern Bell Telephone Company (SWBT) filed a tariff with the Federal Communications Commission (FCC) on Wednesday evening, November 24, 2004. The tariff pertains to SBC's service for voice over internet protocol (VOIP) service providers that it has named "TIPToP", a partial acronym for "True Internet Protocol To Public Switched Telephone Network". It is now a voluntary service. VOIP providers need not purchase it to access SBC's customers on the Public Switched Telephone Network (PSTN).

On Friday, November 26, the day after Thanksgiving, FCC Chairman Michael Powell wrote in a statement [PDF] that he is committed to ensuring that the FCC avoid "any action that might slow the IP-services revolution".

Powell (at right) warned that "Should we conclude that this tariff is being used to justify the imposition of traditional tariffed access charges on VoIP providers or to discriminate against SBC's competitors, the Commission will take appropriate action including, but not limited to, initiating an investigation of SBC's interstate tariff and any other tariff that proposes similar terms. Nothing in this tariff should be interpreted to force a set of compensation relationships on VoIP providers and their connecting carriers either at this Commission or in other venues."

Background on Tariffs, Common Carriers, Information Services, and Intercarrier Compensation.

Tariffs are "Schedules of rates and regulations filed by common carriers" See, 47 CFR 61.3(rr). Tariffs are filed either with state public utilities commissions or the FCC, depending on jurisdiction. Moreover, these common carriers are required to some extent to adhere to their tariffs. Regulators can challenge these tariffs.

The filing of interstate tariffs is covered Part 61 of the FCC's rules. See, GPO page with hyperlinks to each of the sections of part 61 in PDF.

The regulatory regime based upon tariffing dates back to government efforts to curtail certain business practices in the railroad industry in the 19th Century. It was then transplanted to the monopoly phone industry early in the 20th Century. It is based on the assumption that in industries with concentrated market power, markets and negotiation of contacts do not protect consumer welfare, and that government must therefore regulate prices, and prevent price discrimination.

Tariff filing is a procedure that applies in the context of old regulated telecommunications services, but not new unregulated information services, where there are no dominant incumbents with market power.

The FCC has already issued a Declaratory Ruling that Pulver.com's VOIP service, named Free World Dialup, is an information service, and not a telecommunications service. See, Declaratory Ruling and story titled "FCC Rules on Pulver's Free World Dialup VOIP Service" in TLJ Daily E-Mail Alert No. 836, February 13, 2004.

The FCC has also released a Memorandum Opinion and Order [41 pages in PDF] that addresses Vonage Holdings Corporation's Petition for Declaratory Ruling regarding its DigitalVoice service in the state of Minnesota. Minnesota had complained, among other things, that Vonage failed to file a tariff.

The Vonage MO&O states that "we preempt an order of the Minnesota Public Utilities Commission (Minnesota Commission) applying its traditional “telephone company” regulations to Vonage’s DigitalVoice service, which provides voice over Internet protocol (VoIP) service and other communications capabilities. We conclude that DigitalVoice cannot be separated into interstate and intrastate communications for compliance with Minnesota’s requirements without negating valid federal policies and rules." See, story titled "FCC Releases Vonage VOIP Order" in TLJ Daily E-Mail Alert No. 1,018, November 15, 2004; and story titled "FCC Adopts Order on Vonage's VOIP Petition" in TLJ Daily E-Mail Alert No. 1,015, November 10, 2004.

However, the FCC released an Order [27 pages in PDF] on AT&T's petition for a declaratory ruling that access charges do not apply to its service in which calls originate and terminate on circuit switched PSTN facilities, but are routed on internet backbone. The FCC rejected AT&T's request, and ruled that the service at issue is "telecommunications service upon which interstate access charges may be assessed". See, story titled "FCC Rules on AT&T's VOIP Petition" in TLJ Daily E-Mail Alert No. 882, April 22, 2004.

The FCC also has an open proceeding regarding IP enabled services generally, that is intended to address issues such as compensation, the Universal Service Fund, 911/E911, consumer protection, and disability access requirements. The FCC adopted its IP enabled services Notice of Proposed Rulemaking (NPRM) [97 pages in PDF] on February 12, 2004, and released it on March 10, 2004. It is FCC 04-28 in WC Docket 04-36. See especially, paragraphs 61-62 at pages 41-43, for its discussion of compensation.

The FCC also has an open proceeding on intercarrier compensation. Even before the recent growth in VOIP service offerings, the compensation regime was outdated. The FCC is in the process of developing new rules to reform this regime. The FCC adopted it intercarrier compensation Notice of Proposed Rulemaking (NPRM) on April 19, 2001. It is FCC 01-132 in Docket No. CC 01-92.

The FCC also has an open proceeding on Level 3 Communications' petition. It filed this petition with the FCC on December 23, 2003 requesting that it forebear from applying the requirements of Section 251(g) and FCC rules to the extent that they might be interpreted to allow local exchange carriers (LECs) to impose interstate or intrastate access charges on internet protocol (IP) traffic that originates or terminates on the PSTN, or on PSTN-PSTN traffic incidental thereto. The Level 3 petition is published in the FCC web site in five parts in PDF. See, part 1, part 2, part 3, part 4, and part 5. See also, stories titled "Level 3 Files VOIP Petition With FCC" and "Summary of Other VOIP Proceedings at the FCC" in TLJ Daily E-Mail Alert No. 815, January 14, 2004.

Summary of SWBT's Tiptop Service and Tariff.

Tiptop is a service that SBC plans to sell to VOIP services providers to enable them to complete VOIP communications to customers on SBC's PSTN network. The tariff just filed with the FCC on Thanksgiving eve describes the service, sets rules and requirements for purchasers of the service, and sets rates.

SBC stated in a document in its web site that "TIPToP service is a new interstate service that offers the providers of Internet Protocol (IP) enabled voice information services the capability to connect traffic from IP enabled voice information service users (IP-VIS users), to Telephone Company End Users, or Off Net End Users using Public Switched Telephone Network (PSTN) based voice services via end offices or tandems subtended by the Telephone Company Access Tandems."

SWBT wrote in its cover letter [2 pages in PDF] for the tariff filing that "TIPToP service consists of switched circuit interfaces specifically designed for use by a provider of Internet Protocol (IP) Enabled Voice Information Services (IP-VIS) to connect traffic from its IP end users to end users of the Public Switched Telephone Network (PSTN) via the Telephone Company's existing network." It added that this tariff takes effect on November 25, 2004.

SWBT wrote in a second document [3 pages in PDF] titled "Transmittal and Justification" that it "proposes to introduce True IP to PSTN (TIPToP) Service into the SWBT’s Access Service Tariff F.C.C. No. 73. TIPToP service is a time division multiplexed (TDM) telecommunications service consisting of switched circuit interfaces specifically designed for use by a provider of Internet Protocol (IP) Enabled Voice Information Services (IP-VIS) to connect traffic from its IP end users to end users of the Public Switched Telephone Network (PSTN) via the Telephone Company's existing network. TIPToP service is not a mandatory offering. IP-VIS providers who choose not to purchase TIPToP service may use other services, to the extent permitted by SWBT’s tariffs and prevailing law, to connect traffic from their IP end users to end users of the PSTN via the Telephone Company’s existing network." (Parentheses in original.)

This "Transmittal and Justification" continues that "TIPToP Service provides two types of switched circuit port interfaces (one-way and two-way) designed to provide seamless functionality between Time Division Multiplexing (TDM) based voice services and IP based Voice Information Services. The interfaces incorporate Transport, SS7 connectivity, choke trunks and call related data base query capability to the tandem or end office switch in which these interfaces are installed."

A third document [41 pages in PDF] filed by SBC revises Tariff F.C.C. No. 73 with extensive new definitions, rules for ordering access under the Tiptop service, description of the Tiptop service, description of the manner of provisioning, enumeration of limitations on the Tiptop service, new customer obligations, rate regulations, and rates and charges.

Powell's Warning.

FCC Chairman Michael Powell released a statement [PDF] in which he responded to SBC's tariff filling.

He wrote that "SBC's interstate tariff for TIPToP service comes at time when VoIP services are continuing to grab consumer attention by offering more choice, lower prices, greater value, and enhanced features. I am committed to ensuring that this Commission avoids any action that might slow the IP-services revolution."

He continued that "Against this backdrop, the Commission, state utility commissions, and the courts all are considering the question of whether legacy access charges should apply to VoIP services. SBC's tariff makes clear that TIPToP is not a mandatory offering and VoIP providers may continue to utilize alternatives to exchange their traffic. Should we conclude that this tariff is being used to justify the imposition of traditional tariffed access charges on VoIP providers or to discriminate against SBC's competitors, the Commission will take appropriate action including, but not limited to, initiating an investigation of SBC’s interstate tariff and any other tariff that proposes similar terms. Nothing in this tariff should be interpreted to force a set of compensation relationships on VoIP providers and their connecting carriers either at this Commission or in other venues."

Powell concluded that "SBC’s tariff arrives at the Commission while we have before us three proceedings that raise issues related to the charges applicable to VoIP services -- a petition filed by Level 3, our larger intercarrier compensation proceeding and a rulemaking on IP-enabled services. I look forward to considering these pending proceedings."

11/30. Tom Ridge (at right), the Secretary of Homeland Security, announced that "Earlier today, I submitted a formal letter of resignation to the President, and with his concurrence it is my desire to continue to serve as Secretary of Homeland Security through February 1st of next year unless my successor is confirmed by the Senate earlier." See, transcript of press conference.

President George Bush stated that "As the Nation's first Assistant to the President for Homeland Security and first Secretary of Homeland Security, he oversaw the most extensive reorganization of the Federal Government in 50 years. His efforts have resulted in safer skies, increased border and port security, and enhanced measures to safeguard our critical infrastructure and the American public." See, statement.

The House will not meet until Monday, December 6. See, Republican Whip Notice.

The Senate will not meet until Tuesday, December 7.

9:00 AM. Federal Communications Commission (FCC) Commissioner Kathleen Abernathy will hold an event titled "briefing for members of the media". She will discuss her role in the ITU Global Symposium for Regulators (GSR) Conference, to be held in Geneva, Switzerland on December 8-10, 2004. RSVP to Marybeth McCarrick at 202 418-0654 or Meribeth.McCarrick@fcc.gov. Location: FCC, Room 8B115, 445 12th Street, SW.

11:00 AM - 12:00 NOON. Dan Glickman, P/CEO of the Motion Picture Association of America (MPAA), will give a speech on technology and online infringement. This event is free and open to the public. RSVP to use@gwu.edu or 202 994-7706. Location: George Washington University, Jack Morton Auditorium, Media and Public Affairs Building, 805 21st St., NW.

12:15 PM. The Federal Communications Bar Association's (FCBA) Mass Media Practice Committee will host a brown bag lunch. The title of the event is "Meet the Trade Press". No RSVP is required. Location: NAB, 1771 N St., NW.

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in Rainbow Push Coalition v. FCC, No. 01-1072. Judges Henderson, Rogers and Tatel will preside. Location: Prettyman Courthouse, 333 Constitution Ave., NW.

10:00 AM. Bob Liscouski, Assistant Secretary of Homeland Security for Infrastructure Protection, will give a speech at a Federal Deposit Insurance Corporation (FDIC) meeting titled "Protecting the Financial Sector: A Public and Private Partnership". Location: George Washington University, Media and Public Affairs Building, 805 21st St. NW.

The Federal Communications Bar Association (FCBA) will host an event titled "18th Annual Chairman's Dinner". The reception will begin at 6:00 PM. The dinner begins at 7:30 PM. Location: Washington Hilton, 1919 Connecticut Ave., NW.

Day one of a two day event hosted by the Federal Communications Bar Association (FCBA) and the Practicing Law Institute (PLI) titled "22nd Annual Telecommunications Policy and Regulation Conference". The price to attend ranges from $1,165.50 to $1,295.00. See, registration form [PDF]. Location. Watergate Hotel, 2650 Virginia Ave., NW.

Day two of a two day event hosted by the Federal Communications Bar Association (FCBA) and the Practicing Law Institute (PLI) titled "22nd Annual Telecommunications Policy and Regulation Conference". The price to attend ranges from $1,165.50 to $1,295.00. See, registration form [PDF]. Location. Watergate Hotel, 2650 Virginia Ave., NW.

12:00 NOON - 2:00 PM. The Progress and Freedom Foundation (PFF) will host a panel discussion titled "The Myths and Realities of Universal Service: Revisiting the Justification for the Current Subsidies". The speakers will include Randolph May and Joseph Kraemer. See, notice and online registration page. Press contact: Patrick Ross at 202 289-8928 or pross@pff.org. Lunch will be served. Location: Room B369, Rayburn Building.

12:00 NOON - 2:00 PM. The DC Bar Association will host a brown bag lunch titled "Telecom Act Rewrite: Following the Money Trails". The speakers will be Rudy Baca (Precursor Group), Jonathan Askin (General Counsel of Pulver.com), James Gattuso (Heritage Foundation), Lawrence Movshin (Wilkinson Barker & Knauer), and Carolyn Brandon (CTIA). See, notice. Prices to attend range from $15 to $30. For more information, call 202 626-3463. Location: CTIA, 1400 16th Street, NW.

The House will meet at 2:00 PM. See, Republican Whip Notice.

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in James A. Kay v. FCC, No. 02-1175. This is a case pertaining to the finder's preference rule, 47 C.F.R. § 90.173(k)(2)(1992). See, FCC brief [pages in PDF]. Judges Edwards, Sentelle and Randolph will preside. Location: Prettyman Courthouse, 333 Constitution Ave., NW.

10:00 AM. The U.S. Court of Appeals (FedCir), Panel A, will hear oral argument in Designing Health v. Erasmus (No. 03-1438), Northpoint Technology, Ltd v. MDS America, Inc. (No. 04-1249), and Taylor v. DaimlerChrysler (No. 04-1319). The Northpoint Technology case is an appeal from the U.S. District Court (SDFl) involving claims infringement of patents pertaining to use of DBS spectrum for terrestrial wireless services. See, FedCir calendar. Location: Courtroom 402, 717 Madison Place, NW.

10:00 AM. The U.S. Court of Appeals (FedCir), Panel B, will hear oral argument in ISCO International v. Concuctus, Inc. (No. 04-1007) and Bellehumeur v. Bonnett (No. 04-1258). See, FedCir calendar. Location: Courtroom 203, 717 Madison Place, NW.

10:00 AM - 1:00 PM. The Federal Communications Commission's (FCC) Network Reliability and Interoperability Council (NRIC) will meet. See, notice [PDF]. Location: FCC, 445 12th Street, SW, Room TW-C305 (Commission Meeting Room).

Deadline to submit comments in response to the notice of proposed rulemaking by the Department of Defense (DOD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA) regarding telecommuting by federal contractors. See, notice in the Federal Register, October 5, 2004, Vol. 69, No.192, at Pages 59701 - 59702.

The Senate will meet at 9:30 AM.

Hannukah.

10:00 AM. The Supreme Court will hear oral argument in Granholm v. Heald, No. 03-1116, Michigan Beer & Wine Wholesalers v. Heald, No. 03-1120, and Swedenburg v. Kelly, No. 03-1274. See, schedule [PDF]. These cases involve constitutional challenges to state restraints on the direct sales of alcoholic beverages, including internet wine sales.

10:00 AM. The U.S. Court of Appeals (FedCir), Panel C, will hear oral argument in Stambler v. RSA Security (No. 04-1129) and AT&T v. Microsoft (No. 04-1285). See, FedCir calendar. Location: Courtroom 402, 717 Madison Place, NW.

10:00 AM. The U.S. Court of Appeals (FedCir), Panel D, will hear oral argument in Block Financial v. Yodlee, Inc. (No. 04-1087) and McKenchnie Vehicle Components v. Lacks Industries, Inc. (No. 04-1278). See, FedCir calendar. Location: Courtroom 203, 717 Madison Place, NW.

6:00 - 8:15 PM. The DC Bar Association will host a continuing legal education (CLE) program titled "2004 Intellectual Property Law Year in Review Series: Part 1 -- Patent Update". The speakers will be Bradley Wright (Banner & Witcoff) and Kevin Duncan (Hunton & Williams). See, notice. Prices vary from $70 to $115. For more information, call 202 626-3488. Location: D.C. Bar Conference Center, B-1 Level, 1250 H St., NW.

EXTENDED TO DECEMBER 21. Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking and Declaratory Ruling (NPRM & DR) [100 pages in PDF] regarding imposing Communications Assistance for Law Enforcement Act (CALEA) obligations upon broadband internet access services and voice over internet protocol (VOIP). This NPRM is FCC 04-187 in ET Docket No. 04-295. The FCC adopted this NPRM at its August 4, 2004 meeting, and released it on August 9. See, story titled "Summary of the FCC's CALEA NPRM" in TLJ Daily E-Mail Alert No. 960, August 17, 2004. See, notice in the Federal Register, September 23, 2004, Vol. 69, No. 184, Pages 56976 - 56987. See also, notice of extension [PDF].

10:00 AM. The U.S. Court of Appeals (FedCir), Panel E, will hear oral argument in Sunny Fresh Foods v. Michael Foods (No. 04-1059) and Schreiber Foods v. Beatrice Cheese (No. 04-1279). See, FedCir calendar. Location: Courtroom 402, 717 Madison Place, NW.

10:00 AM. The U.S. Court of Appeals (FedCir), Panel F, will hear oral argument in Jore Corp. v. Kouvato, Inc. (No. 04-1163) and Lisle Corp. v. AJ Manufacturing (No. 04-1275). See, FedCir calendar. Location: Courtroom 203, 717 Madison Place, NW.

10:00 AM - 12:00 NOON. The Department of State's (DOS) International Telecommunication Advisory Committee (ITAC) will meet to advise the DOS on policy and technical issues with respect to the International Telecommunication Union (ITU), and in particular, the December 15-17, 2004 meeting of ITU's Telecommunications Development Advisory Group (TDAG) in Geneva, Switzerland. See, notice in the Federal Register, November 5, 2004, Vol. 69, No. 214, at Page 64620. Location: DOS, Room 2533A.

12:00 NOON. The Federal Communications Bar Association (FCBA) Foundation Board of Trustees will meet. Location: Wiley Rein & Fielding, 1776 K St., NW.

12:00 NOON - 1:30 PM. The DC Bar Association will host a luncheon program titled "Intellectual Property Considerations in Strategic Alliances". The speakers will be Linda Alcorn and Marvin Guthrie (both of Sterne Kessler Goldstein & Fox). See, notice. Prices vary from $8 to $18. For more information, contact Tracy Muller at 202 772-8697 or tmuller@skgf.com. Location: SKGF, 8th Floor, 1100 New York Ave., NW.

3:00 PM. The U.S. Court of Appeals (1stCir) will hear oral argument, en banc, in USA v. Councilman, a case regarding the applicability of the Wiretap Act to e-mail in storage. See, opinion of the three judge panel, and story titled "1st Circuit Holds Wiretap Act Does Not Apply to E-Mail in Storage" in TLJ Daily E-Mail Alert No. 930, July 1, 2004. Location. En Banc Courtroom, John Joseph Moakley Courthouse, Boston, MA.

11/30. The U.S. Court of Appeals (FedCir) issued its opinion [6 pages in PDF] in Kyocera Wireless v. President Electronics, a patent case involving cell phone designs. Tony Colida holds several patents for the design of cellular telephone handsets. He filed a complaint in U.S. District Court (SDCal) against Kyocera Wireless alleging infringement of these patents. The District Court granted summary judgment of non-infringement to Kyocera. The Court of Appeals affirmed. This case is Kyocera Wireless Corporation v. President Electronics, Ltd. and Tony Colida, U.S. Court of Appeals for the Federal Circuit, App. Ct. No. 04-1345, an appeal from the U.S. District Court for the Southern District of California, D.C. No. 02-CV-2042.

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