12/23. President Bush signed HR 5419. This is a composite bill put together in November. It includes the "Commercial Spectrum Enhancement Act", the "ENHANCE 911 Act", and the "Universal Service Antideficiency Temporary Suspension Act". Bush also issued a signing statement in which he asserted that some provisions of the bill are unconstitutional, and that his administration will implement the bill accordingly.

The House approved this bill on Saturday, November 20, 2004, by unanimous consent, without debate. The Senate approved the bill on December 8, 2004.

See, stories titled "House Approves Bill that Includes the Commercial Spectrum Enhancement Act" in TLJ Daily E-Mail Alert No. 1,025, November 24, 2004; "Powell Urges Senate to Approve Telecom Bill" in TLJ Daily E-Mail Alert No. 1,032, December 7, 2004; and, "Congress Approves Telecom Bill" in TLJ Daily E-Mail Alert No. 1,035, December 10, 2004.

Title I of HR 5419 is titled the "Ensuring Needed Help Arrives Near Callers Employing 911 Act of 2004" or "ENHANCE 911 Act".

Title II of the bill is the "Commercial Spectrum Enhancement Act". It changes the process for reallocating spectrum from federal users to commercial users, such as wireless broadband services. The bill creates a Spectrum Relocation Fund, funded by auction proceeds, to compensate federal agencies for the cost of relocating. The bill replaces the current role of the House and Senate Appropriations Committees. HR 1320 was an earlier version.

Title III of the bill is the "Universal Service Antideficiency Temporary Suspension Act". This title provides that universal service funds collected pursuant to 47 U.S.C. §  254, and the universal service programs established pursuant to this section, are not subject to certain provisions of the Antideficiency Act.

President Bush's signing statement addresses Title III. He wrote that this title "makes the Antideficiency Act temporarily inapplicable to certain collections, receipts, expenditures and obligations relating to universal communications service."

He then wrote that "Section 104 amends section 158(a)(2) of the National Telecommunications and Information Administration Organization Act to call for executive branch officials to submit to congressional committees funding profiles for a specified 5-year program. The executive branch shall construe the provision in a manner consistent with the constitutional authority of the President to recommend for the consideration of the Congress such measures, including proposals for appropriations, as he judges necessary and expedient."

He also wrote that "Sections 202 and 204 enact sections 113(g)(5) and 118(d) of the National Telecommunications and Information Administration Organization Act, which purport to condition the execution of a law upon notification to congressional committees coupled with either approval by the committees or the absence of disapproval by the committees within a specified time. The executive branch shall construe the provisions to legally require only notifi-cation to the committees, as any other construction would be inconsistent with the principles enunciated by the Supreme Court of the United States in INS v. Chadha. The Secretary of Commerce will continue as a matter of comity to work with the committees on matters addressed by these provisions."

See, the Supreme Court's opinion in INS v. Chadha, 462 U.S. 919 (1983). President Bush has on prior occasions asserted Chadha. See, for example, story titled "Homeland Security Appropriations Bill Purports to Restrict Use of Funds for CAPPS II" in TLJ Daily E-Mail Alert No. 751, October 2, 2003.

Finally, President Bush wrote that "As is consistent with the principle of statutory construction of giving effect to each of two statutes addressing the same subject whenever they can co-exist, the executive branch shall construe section 302 of the Act in a manner consistent with section 254 of the Communications Act of 1934, which provides the Federal Communications Commission with the authority to maintain funding caps for Universal Service Fund programs."

12/27. The Federal Communications Commission (FCC) published a notice in the Federal Register that describes and sets comment deadlines for the Second Further Notice of Proposed Rulemaking (NPRM) regarding reducing barriers to secondary markets for spectrum rights.

This 2ndFNPRM seeks public comments on what additional policies could facilitate the deployment of new technologies through secondary market arrangements such as spectrum leasing and private commons.

FCC Chairman Michael Powell discussed the private commons model in a speech [5 pages in PDF] on October 26, 2004. See, story titled "Powell Addresses Spectrum Policy and Proceedings" in TLJ Daily E-Mail Alert No. 1,006, October 28, 2004.

He said that "I introduced an innovative approach to allow users of smart equipment to gain access to spectrum that is underutilized by licensees -- the private commons model. Under these rules, licensees can set aside an entire license or a portion of a license for an arrangement in which users can access that spectrum under technical rules and other conditions set by the licensees." (See, page 4.)

He added that "This new option has the potential to provide spectrum for ad hoc and mesh, peer-to-peer networks that can be used to offer wireless broadband services. The model also may be particularly valuable to users of the unlicensed bands, such as wireless ISPs, who may find those bands congested and may be looking for a source of additional spectrum to supplement their existing operations."

This 2ndFNPRM is a part of a larger item that the FCC adopted on July 8, 2004, and released on September 2, 2004. See, story titled "FCC Adopts Second Secondary Markets Report and Order" in TLJ Daily E-Mail Alert No. 934, July 9, 2004; and story titled "FCC Releases Second Secondary Markets Report and Order" in TLJ Daily E-Mail Alert No. 969, September 3, 2004.

Comments are due by January 18, 2005. Reply comments are due by February 17, 2005. This item is FCC 04-167 in WT Docket No. 00-230. See, Federal Register, December 27, 2004, Vol. 69, No. 247, at Pages 77560 - 77568.

12/27. The Federal Communications Commission (FCC) published a notice in the Federal Register that announces, describes and sets the effective date (February 25, 2005 for most provisions) of its Second Report and Order and Order on Reconsideration regarding reducing barriers to secondary markets for spectrum rights. The FCC adopted this item at its July 8, 2004 meeting, and released the text [PDF] of this item on September 2, 2004. See, story titled "FCC Adopts Second Secondary Markets Report and Order" in TLJ Daily E-Mail Alert No. 934, July 9, 2004; and story titled "FCC Releases Second Secondary Markets Report and Order" in TLJ Daily E-Mail Alert No. 969, September 3, 2004. This second report and order is FCC 04-167 in WT Docket No. 00-230. See, Federal Register, December 27, 2004, Vol. 69, No. 247, at Pages 77521 - 77559.

12/27. The Federal Communications Commission (FCC) published a notice in the Federal Register announcing and setting the effective date (December 27, 2004) of it final rule regarding its implementation of the Controlling of the Assault of Non-Solicited Pornography and Marketing Act of 2003, which is also known as the CAN-SPAM Act. See, Federal Register, December 27, 2004, Vol. 69, No. 247, at Pages 77141 - 77143. The FCC released its order back on August 12, 2004.

12/23. The Federal Communications Commission (FCC) released an Order on Review [4 pages in PDF] pertaining to Minority Television Project, Inc., which is the licensee of noncommercial educational (NCE) television station KMTP-TV in San Francisco, California. Pursuant to 47 U.S.C. § 399B and 47 C.F.R. § 73.621(e), NCE stations cannot carry commercial advertisements. KMTP-TV carried commercial advertisements. The FCC rejected the broadcaster's arguments that the statute and regulation unconstitutionally restrain speech. The FCC affirmed the fine of $10,000.

12/22. The Federal Communications Commission (FCC) published a notice in the Federal Register that announces sets the effective date of certain of its children's television rules, that it published over eight years ago, in August of 1996. The notice states that the rules are effective as of January 2, 1997. See, Federal Register, December 21, 2004, Vol. 69, No. 244, at Page 76420.

12/27. The Department of Homeland Security's (DHS) National Infrastructure Advisory Council (NIAC) will hold a meeting on January 11, 2005, from 1:00 - 4:00 PM. See, notice in the Federal Register, December 27, 2004, Vol. 69, No. 247, at Pages 77259 - 77260.

The scheduled government speakers may include Tom Ridge (Secretary of Homeland Security), Frank Libutti (Under Secretary for Information Analysis and Infrastructure Protection), and Robert Liscouski (Assistant Secretary for Infrastructure Protection). The scheduled government speakers will include Nancy Wong (DHS) and Frances Townsend (Special Assistant to the President for Critical Infrastructure).

John Chambers (Ch/CEO of Cisco Systems) and Gilbert Gallegos (Police Chief of the City of Albuquerque) are scheduled to give a status report on "Intelligence Process and Work Products Regarding Critical Infrastructures".

Thomas Noonan (P/CEO of Internet Security Systems) and Martha Marsh (P/CEO of Stanford Hospital and Clinics) will give a status report on "Risk Management Approaches Protection".

Alfred Berkeley (e-Xchange Advantage Corp.) and Linwood Rose (President of James Madison University) are scheduled to give a status report on "Assuring Adequate National Intellectual Capital to Secure Cyber-Based Critical Infrastructures".

Patrick Morrissey (Deputy Director for Law Enforcement and Intelligence of the DHS's National Cyber Security Division) will give a presentation on the "DHS/DOJ Cyber Security Survey". 

The meeting will be open to the public. It will be held at the Hamilton Crowne Plaza, 14th & K Streets, NW.

12/22. The Federal Communications Commission (FCC) released another order [67 pages in PDF] addressing the problem of interference to 800 MHz public safety communications systems from Commercial Mobile Radio Services (CMRS) providers operating systems on channels in close proximity. This is also know as the Nextel spectrum swap. This latest order provides, among other things, that Nextel's credit for 800 MHz spectrum be increased by $452 Million.

This order is titled "Supplement Order and Order on Reconsideration". It is FCC 04-294 in WT Docket No. 02-55, ET Docket No. 00-258, RM-9498, RM-10024, and ET Docket No. 95-18.

The FCC announced its original report and order (FCC 04-168) at its July 8, 2004 meeting. See, story titled "FCC Adopts Report and Order Regarding Interference in the 800 MHz Band" in TLJ Daily E-Mail Alert No. 936, July 13, 2004.

The original report and order provides that Nextel will return its interference causing spectrum in the 800 MHz band, and all of its licenses in the 700 MHz band, and in return, will be given 10 megahertz of spectrum, located at 1910-1915 MHz and 1990-1995 MHz, subject to further conditions.

The FCC concluded back in July that "the overall value of the 1.9 GHz spectrum rights is $4.8 billion, less the cost of relocating incumbent users". The FCC determined "that it would credit to Nextel the value of the spectrum rights that Nextel will relinquish and the actual costs Nextel incurs for to relocate all incumbents in the 800 MHz band."

Nextel requested that the FCC modify its July report and order (R&O). The present supplemental order increases the valuation of these credits by nearly one half billion dollars.

The present supplemental order states that "We have carefully reviewed the Nextel analysis and the comments that parties have filed in response to that analysis. We conclude that the data submitted by Nextel provides credible support for its contentions with respect to the amount and value of 800 MHz spectrum that it will relinquish under the terms of the 800 MHz R&O."

It elaborates that "Nextel has based its calculations on an analysis of all markets, rather than a sampling of markets. Nextel has also provided more complete information on Nextel’s interleaved spectrum holdings by including data on interleaved non-SMR (B/ILT) channels held by Nextel, which were not taken into account in our valuation in the 800 MHz R&O. In addition, Nextel’s bandwidth calculations more accurately reflect the variations in Nextel’s spectrum holdings from one market to another, and do not count spectrum that is unavailable to Nextel because of the presence of non-Nextel incumbents.

The supplemental order concludes that "We believe it is in the public interest to base our valuation on the granular data provided by Nextel, rather than on the less precise information available to us at the time of the 800 MHz R&O."

It further concludes, at Paragraph 36, that "Based on this revised information, we conclude that the “credit” that Nextel should receive for surrender of 800 MHz spectrum should be increased by $452 million. Accordingly, in the post-rebanding calculation used to determine whether Nextel must make a ``true-up´´ payment to the United States Treasury, Nextel will be credited the sum of $2.059 billion for its surrendered 800 MHz spectrum." (Footnote omitted.)

FCC Commissioner Michael Copps (at right) wrote in a concurring statement [PDF] that "I am uncomfortable, however, with the decision to change the valuation of Nextel's spectrum by close to half a billion dollars -- an increase of nearly twenty percent. While I believe that Nextel has demonstrated that its spectrum holdings are different than the assumption we made in the original order, I am concerned that the process that the Commission has used here to determine value has become too imprecise. Given the short time available, I do not believe that the Commission had the capacity to independently pinpoint the exact nature of Nextel’s holdings, as we do here but did not do in the previous order. Additionally, if we must reassess the value of Nextel's spectrum, I would have preferred to reassess the MHz/POP multiplier that we employ in light of changes in the marketplace and transactions that occurred after we adopted our first order. Given the magnitude of the valuation at issue, I will therefore concur."

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

The House will next meet on January 4, 2004 at 12:00 NOON. See, Republican Whip Notice.

The Senate will next meet on January 4, 2005 at 12:00 NOON.

The Supreme Court will next meet on Monday, January 10, 2005. See, Order List [9 pages in PDF] at page 9.

EXTENDED TO JANUARY 31. Extended deadline to submit reply comments to Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) [38 pages in PDF] regarding use by unlicensed devices of broadcast television spectrum where the spectrum is not in use by broadcasters. See, story titled "FCC Adopts NPRM Regarding Unlicensed Use of Broadcast TV Spectrum" in TLJ Daily E-Mail Alert No. 898, May 14, 2004, and story titled "FCC Releases NPRM Regarding Unlicensed Use of TV Spectrum" in TLJ Daily E-Mail Alert No. 905, May 26, 2004. This NPRM is FCC 04-113 in ET Docket Nos. 04-186 and No. 02-380. See, notice (setting original deadlines) in the Federal Register, June 18, 2004, Vol. 69, No. 117, at pages 34103-34112; and notice [PDF] of extended deadlines, and erratum [PDF]. See, December 22, 2004 Public Notice [PDF] (DA 04-4013) further extending the deadline for reply comments to January 31.

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

Deadline to submit comments to the National Archives and Records Administration (NARA) in response to its notice of proposed rulemaking regarding permitting the destruction of "very short-term temporary e-mail" of federal agencies. See, notice in the Federal Register, November 3, 2004, Vol. 69, No. 212, at Pages 63980 - 63981.

The House will meet at 12:00 NOON. See, Republican Whip Notice.

The Senate will convene at 12:00 NOON. It will not meet again until January 20. See, Senate calendar.

10:00 AM. The Senate Health, Education, Labor and Pensions Committee will hold a hearing on the nomination of Margaret Spelling to be Secretary of Education. Location: Room 430, Dirksen Building.

Deadline to submit comments to the Export-Import Bank of the United States regarding its notice in the Federal Register that states that it "has received an application to finance the export of approximately $1.2 billion in U.S. semiconductor manufacturing equipment to dedicated foundries in China." The notice adds that "The U.S. exports will enable the dedicated 200-mm and 300-mm foundries to produce approximately 80,000 wafers per month (200-mm equivalent) of logic products. Available information indicates that some of this new production will be exported from China and consumed globally." See, Federal Register, December 23, 2004, Vol. 69, No. 246, at Page 76945.

Deadline to submit nominations to the Federal Communications Bar Association (FCBA) for its Executive Committee and Foundation. Send nominations to Alexandra Wilson at alexandra.wilson@cox.com.

12/23. The Export-Import Bank of the United States published a brief notice in the Federal Register that states that it "has received an application to finance the export of approximately $1.2 billion in U.S. semiconductor manufacturing equipment to dedicated foundries in China." The notice adds that "The U.S. exports will enable the dedicated 200-mm and 300-mm foundries to produce approximately 80,000 wafers per month (200-mm equivalent) of logic products. Available information indicates that some of this new production will be exported from China and consumed globally." Public comments are due "within 14 days of the date this notice appears in the Federal Register". See, Federal Register, December 23, 2004, Vol. 69, No. 246, at Page 76945. This would make comments due by January 6, 2005.

12/23. The Department of Agriculture's Rural Utilities Service (RUS) published a notice in the Federal Register that announces the depreciation rates for telecommunications plant for the period ending December 31, 2003. See, Federal Register, December 23, 2004, Vol. 69, No. 246, at Pages 76909 - 76910.

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