12/29. Federal Communications Commission (FCC) Chairman Michael Powell sent a letter [PDF] to National Telecommunications and Information Administration (NTIA) head Michael Gallagher in which he stated that the FCC "plans to commence the auction of licenses in the 1432-1435 MHz band and the 1710-1755 MHz band as early as June 2006".

The FCC and NTIA have been working for several years to make at least an additional 90 MHz of spectrum, below 3 GHz, available for what has variously been described as Third Generation (3G) wireless services, advanced wireless services (AWS), and wireless broadband.

The 1710-1755 MHz band has been identified as 45 MHz of this 90 MHz. (The 2110-2155 MHz band has also been identified.) However, the 1710-1755 MHz band has long been used by the Department of Defense (DOD) for various vital military operations. These operations need to be relocated to other bands. This will cause the DOD to incur great expense. The FCC plans to auction this 90 MHz of spectrum to private sector licensees for the purpose of providing wireless broadband services.

Powell's letter follows by six days President Bush's signing of HR 5419, which includes the Commercial Spectrum Enhancement Act (CSEA). See story titled "Bush Signs Telecom Bill" in TLJ Daily E-Mail Alert No. 1,045, December 28, 2004.

The CSEA changes the process for reallocating spectrum from federal users to commercial users that plan to use it to provide wireless broadband services. The bill creates a Spectrum Relocation Fund, funded by auction proceeds, to compensate federal agencies for the cost of relocating. The procedure specified by the bill replaces the role otherwise played by the House and Senate Appropriations Committees.

The CSEA is Title II of HR 5419. It applies to "the 216-220 megahertz band, the 1432-1435 megahertz band, the 1710-1755 megahertz band, and the 2385-2390 megahertz band of frequencies" and "any other band of frequencies reallocated from Federal use to non-Federal use after January 1, 2003, that is assigned by competitive bidding pursuant to section 309(j) of the Communications Act of 1934", with exceptions.

The CSEA creates a Spectrum Allocation Fund, funded by these auction proceeds. It provides that "Any Federal entity that operates a Federal Government station assigned to a band of frequencies" that is referenced above, "and that incurs relocation costs because of the reallocation of frequencies from Federal use to non-Federal use shall receive payment for such costs from the Spectrum Relocation Fund ..."

The CSEA also provides that the FCC "shall notify the NTIA at least 18 months prior to the commencement of any auction of eligible frequencies". Hence, June 2006 is the earliest possible time for commencing the auctions.

Powell (at right) wrote that "I am confident that the relocation trust fund mechanism that Congress has established will result in successful auctions, smooth relocation of important government operations and, most importantly, competitive high quality communications services being provided to American consumers."

Powell wrote that the FCC plans to commence the auction of spectrum in the 1710-1755 MHz and 2110-2155 MHz bands in June 2006. He also wrote that the FCC plans to commence the action of spectrum in the 1432-1435 MHz band in "July or August 2006".

Powell also proposed the formation of a "joint working group on federal relocation related to the auctions" of the above referenced bands.

The CSEA was previously considered as a stand alone bill, HR 1320, titled the "Commercial Spectrum Enhancement Act". The House passed its version on June 11, 2003. See, stories titled "House Subcommittee Holds Hearing On Commercial Spectrum Enhancement Act" in TLJ Daily E-Mail Alert No. 631, March 26, 2003; "House Subcommittee Approves Spectrum Relocation Fund Bill" in TLJ Daily E-Mail Alert No. 641, April 10, 2003; "House Commerce Committee Passes Spectrum Relocation Bill" in TLJ Daily E-Mail Alert No. 653, May 1, 2003; and "House Passes Commercial Spectrum Enhancement Act" in TLJ Daily E-Mail Alert No. 679, June 12, 2003. The Senate Commerce Committee passed its version on June 26, 2003. See, story titled "Senate Commerce Committee Approves Commercial Spectrum Enhancement Act" in TLJ Daily E-Mail Alert No. 689, June 27, 2003.

12/29. The Federal Communications Commission (FCC) published a notice in the Federal Register that describes, recites, and sets the effective date (January 28, 2005) of its Seventh Report and Order (7thR&O) which pertains to the reaccommodation of federal government users in order to make the 1710-1755 MHz band available for auction for wireless broadband services (also known as 3G or AWS).

This 7thR&O is FCC 04-246 in ET Docket No. 00-258 and WT Docket No. 02-8. The FCC adopted this item at its meeting of October 14, 2004, and released it on October 21, 2004. See, story titled "FCC Adopts Report and Order Re 1710-1755 MHz Band" in TLJ Daily E-Mail Alert No. 997, October 15, 2004.

See, Federal Register, December 29, 2004, Vol. 69, No. 249, at Pages 77938 - 77950.

This 7thR&O largely adopts the proposals contained in the FCC's Fourth Notice of Proposed Rulemaking [49 pages in PDF]. See, stories titled "FCC Releases NPRM Regarding Allocating Spectrum to DOD to Replace Spectrum Allocated for 3G Services" in TLJ Daily E-Mail Alert No. 694, July 9, 2003, and "FCC Sets Deadlines for Comments Regarding Spectrum Reallocations Relating to 3G Services" in TLJ Daily E-Mail Alert No. 731, September 3, 2003.

TLJ has published numerous stories related to making another 90 MHz of spectrum available for broadband wireless services. See, for example, the following TLJ stories, and hyperlinks therein:

• story titled "NTIA Hosts First Public Meeting on 3G Spectrum", November 3, 2000.
• story titled "FCC Releases Notice of Proposed Rulemaking for 3G Wireless Spectrum", January 5, 2001.
• story titled "3G Spectrum" in TLJ Daily E-Mail Alert No. 156, April 2, 2001.
• story titled "FCC and 3G" in TLJ Daily E-Mail Alert No. 247, August 13, 2001.
• story titled "Government Officials Announce 3G Spectrum Plan", July 23, 2002.

12/29. The Federal Communications Commission (FCC) published a notice in the Federal Register that describes, recites, and sets the effective date (January 28, 2005) for its final rule regarding the unbundling obligations of incumbent local exchange carriers (ILECs). The FCC adopted its Order on Remand at its December 15, 2004 meeting. See, story titled "FCC Adopts Unbundling Order" in TLJ Daily E-Mail Alert No. 1,039, December 16, 2004. This item is FCC 04-290 in WC Docket No. 04-313 and CC Docket No. 01-338.

12/29. The Federal Communications Commission (FCC) published a notice in the Federal Register that describes, recites, and sets the compliance date (September 1, 2005) for its final rule that extends and modifies the FCC Form 477 local competition and broadband data gathering program. See, Federal Register, December 29, 2004, Vol. 69, No. 249, at Pages 77912 - 77938. The FCC adopted its Report and Order on November 9, 2004. This item is FCC 04-266 in WC Docket No. 04-141. See also, story titled "FCC to Collect More Data with Form 477" in TLJ Daily E-Mail Alert No. 1,016, November 11, 2004.

12/15. The Federal Communications Commission (FCC) published a notice in the Federal Register that describes and sets comment deadlines for its Further Notice of Proposed Rulemaking (FNPRM) regarding wireless services in rural areas. Comments are due by January 14, 2005. Reply comments are due by February 14, 2005. On September 27, 2004, the FCC released the text [137 pages in PDF] of its Report and Order and Further Notice of Proposed Rulemaking. The FCC adopted, but did not release, this item at its July 8, 2004 meeting. This item is 04-166 in WT Docket Nos. 02-381, 01-14, and 03-202. See, Federal Register, December 15, 2004, Vol. 69, No. 240, at Pages 75174 - 75185. The FCC also published a separate notice in the Federal Register that describes, recites and sets the effective date (February 14, 2005 for most provisions) of its final rule regarding wireless services in rural areas. See, Federal Register, December 15, 2004, Vol. 69, No. 240, at Pages 75143 - 75173.

Tech Law Journal publishes a free access web site and subscription e-mail alert. The basic rate for a subscription to the TLJ Daily E-Mail Alert is $250 per year. However, there are discounts for subscribers with multiple recipients. Free one month trial subscriptions are available. Also, free subscriptions are available for journalists, federal elected officials, and employees of the Congress, courts, and executive branch. The TLJ web site is free access. However, copies of the TLJ Daily E-Mail Alert are not published in the web site until one month after writing. See, subscription information page.

Contact: 202-364-8882.
P.O. Box 4851, Washington DC, 20008.

Privacy Policy
Notices & Disclaimers
Copyright 1998 - 2004 David Carney, dba Tech Law Journal. All rights reserved.

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.

Effective date of the Copyright Office's final rule increasing by 3.2% the cost of living adjustment in the royalty rates paid by colleges, universities, or other nonprofit educational institutions that are not affiliated with National Public Radio for the use of copyrighted published nondramatic musical compositions in the BMI, ASCAP and SESAC repertoires. See, notice in the Federal Register, December 1, 2004, Vol. 69, No. 230, at Pages 69822 - 69823.

Effective date of the Copyright Office's waiver of regulation allowing the on-line and facsimile submission of DART claims to the 2004 DART royalty funds. (The DART claims are due by February 28, 2005.) See, notice in the Federal Register, November 29, 2004, Vol. 69, No. 228, at Pages 69288 - 69290.

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.

2:00 - 4:00 PM. The Department of State's International Telecommunication Advisory Committee (ITAC) will meet to prepare for the International Telecommunications Union's ITU-T Study Group 3 (tariff and accounting principles) meeting. See, the ITU's calendar of meetings. See, notice in the Federal Register, December 20, 2004, Vol. 69, No. 243, at Page 76027. For more information, including the location, contact Julian Minard at minardje@state.gov. Location: undisclosed.

10:00 AM. The Senate Judiciary Committee will hold a hearing on the nomination of Alberto Gonzales to be Attorney General. Sen. Arlen Specter (R-PA) will preside. Location: Room 216, Hart Building.

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.

12/29. The U.S. Court of Appeals (6thCir) issued its opinion [3 pages in PDF] in Knology v. Insight Communications, a dispute between cable companies in which one company (Knology) alleged that the litigation activities of the other (Insight) violated, among other things, the Sherman Act. The District Court held that Insight has immunity under the Noerr-Pennington doctrine for some, but not all, of Knology's claims. The Court of Appeals held that the Noerr-Pennington doctrine gives Insight immunity as to all of the claims.

Knology and Insight Communications are both cable TV and broadband companies. In 1998 the City of Louisville, in the state of Kentucky, granting Insight a franchise to provide cable services. Moreover, the relevant ordinance provided that the grant was not exclusive, and that the city might grant other franchises to other operators.

In 2000 the city granted Knology a franchise. However, the relevant ordinance also provided that if Insight challenged this grant, then it "shall be suspended pending a final and nonappealable decision resolving the issue".

Insight did challenge the 2000 grant of a franchise to Knology. It filed a complaint in state court, and lost. It appealed, and lost. And, the state supreme court denied its discretionary appeal. All the while, Knology's franchise was suspended.

Knology then filed a complaint in U.S. District Court (WDKent) against Insight alleging that Insight's lawsuit and its invocation of the provision suspending Knology's franchise violated the Sherman Act, the Cable Act, and the First Amendment, and that Knology was therefore entitled to damages under the Sherman Act and 42 U.S.C. § 1983.

The Appeals Court summarized the District Court's action. "The district court, ruling on a motion for partial summary judgment, viewed Insight’s one act -- filing suit -- as two acts, warranting two contrary holdings: Insight was immune under the Noerr-Pennington doctrine for its act of filing the state court action, but not immune for its invocation of the franchise suspension provision (by its act of filing the state court action). The district court also ruled Insight was not immune from Knology's § 1983 claims, because it was a “state actor” when it invoked the suspension. That reasoning led the court to enter summary judgment for Knology on its § 1983 First Amendment claim." (Parentheses in original.)

See, Eastern R.R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127 (1961) and United Mine Workers v. Pennington, 381 U.S. 657 (1965).

The Appeals Court wrote that "The Noerr-Pennington doctrine allows businesses to combine and lobby to influence the legislative, executive, or judicial branches of government or administrative agencies without antitrust or § 1983 liability, because the First Amendment’s right of petition protects such activities. ... The doctrine immunizes parties from liability under antitrust laws or § 1983 for actions taken when petitioning authorities to take official action, even where the petitioning activity has the intent or effect of depriving another of property interests, except ... where parties use the petitioning process, rather than the outcome of that process, as an anticompetitive weapon."

The Appeals Court stated that Insight's action did not fit within this exception. It wrote that "we see filing the lawsuit and invoking the suspension provision as a single petitioning activity protected by the First Amendment and Noerr-Pennington. That this petitioning caused an anticompetitive result is irrelevant to Noerr-Pennington analysis."

Hence, it concluded "that Insight engaged in nothing more than legitimate petitioning. As a result, Noerr-Pennington bars all of Knology’s claims for damages against Insight arising out of the stay, foreclosing relief on the other issues raised on appeal."

This case is Knology, Inc. v. Insight Communications Company, LP, et al., U.S. Court of Appeals for the 6th Circuit, App. Ct. No. 03-6390, an appeal from the U.S. District Court for the Western District of Kentucky, at Louisville, D.C. No. 00-00723, Judge Thomas Russell presiding. Judge Cook wrote the opinion of the Appeals Court, in which Judges Nelson and Sargus (SDOhio, sitting by designation) joined.