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May 31, 2005, 9:00 AM ET, Alert No. 1,144.
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FCC Receives Comments Regarding Use of Consumer Electronic Devices on Aircraft

5/26. May 26 was the extended deadline to submit comments to the Federal Communications Commission (FCC) in response to its notice of proposed rulemaking (NPRM) in its proceeding titled "In the matter of Amendment of the Commission’s Rules to Facilitate the Use of Cellular Telephones and other Wireless Devices Aboard Airborne Aircraft".

The FCC adopted this NPRM on December 15, 2004. See, story titled "FCC Announces NPRM on Cellphones in Airplanes" in TLJ Daily E-Mail Alert No. 1,039, December 16, 2004. See also, story titled "FCC Adopts Order and NPRM Regarding Air Ground Service in the 800 MHz Band" in TLJ Daily E-Mail Alert No. 1,040, December 17, 2004.

The FCC released the text [28 pages PDF scan] of this NPRM on February 15, 2005. This NPRM is FCC 04-187 in WT Docket No. 04-435. The extended deadline to submit reply comments is June 27, 2005. See, order [2 pages in PDF] (DA 05-1015) dated April 5, 2005.

Boeing, a U.S. aircraft manufacturer, and the leading proponent of expanded use of wireless devices aboard aircraft, submitted a comment [34 pages in PDF] in which argued that "allowing the use of wireless devices during flight will provide significant public benefits to passengers, airlines and service providers alike".

It recommended that the FCC "adopt comprehensive service rules applicable to the operation of airborne picocell systems in all commercial mobile radio service (``CMRS´´) spectrum bands, including the cellular, PCS, WCS and SMR bands."

Boeing stated that these rules should provide that "any entity technically and financially capable of providing in-cabin wireless services should be authorized to do so on an unlicensed basis, subject to Federal Aviation Administration rules and the technical requirements adopted by the Commission to avoid the potential for harmful interference to co-channel terrestrial services. Existing CMRS licensees should not have exclusive authority to provide such services."

It also wrote that these rules should provide that "airborne picocell systems should be accessible to any wireless customer in good standing with its home provider if the customer is using equipment that is technically compatible with the airborne picocell system. Access to airborne wireless services can be viewed as “roaming” similar to the roaming privileges that wireless subscribers otherwise enjoy when located in the service area of another terrestrial wireless carrier."

It also wrote that "although the potential for interference from airborne picocell operations to terrestrial wireless systems is slim, the Commission should adopt appropriate technical standards and operational requirements for the provision of airborne wireless services."

In contrast, the Cellular Telecommunications and Internet Association (CTIA), which represents terrestrial wireless systems, argued that in its comment [20 pages in PDF] that there is a threat of harmful interference with existing terrestrial CMRS operations, and hence, "airborne use of CMRS spectrum should not be initiated".

Space Data Corporation argued in its comment [10 pages in PDF] that "should ensure that its rules regarding the operation of wireless devices on aircraft are technologically neutral. It should: (1) lift the existing prohibition against using 800 MHz cellular handsets on airplanes and decline to extend the prohibition to personal communications service (``PCS´´) devices; and (2) not require the use of pico cells to provide ATG services if the specific service can be provided without causing harmful interference to terrestrial wireless licensees."

The Consumer Electronics Association (CEA) submitted a comment [9 pages in PDF] in which it made the distinction between wireless devices that enable voice communications, and other devices. It wrote that voice devices can be disruptive in confined spaces, and their use should be regulated, not by the FCC, but by the airlines. The CEA wrote that consumer interest in e-mail, internet access, and other services is greater, and should be facilitated by the FCC.

The CEA wrote that "many consumers are interested in using their own electronic devices to access a wireless data network or the Internet while airborne, which is key to maintaining productivity while outside the home or office."

It advocated "greater in-flight access to mobile data services, recognizing that the use of voice communications in flight poses significant risk of disruption to travelers in the confined space of an airplane. According to Forrester Research, only 13 percent of business travelers and less than 10 percent of leisure travelers expressed interest in using their mobile phones on planes for conversation. While consumers seem far more interested in using data applications such as e-mail or text messaging while airborne, CEA recognizes that even a small number of passengers interested in utilizing voice communication raises significant social issues. ... For this reason, CEA supports limits on voice communications, as determined and enforced by individual airlines."

The Air Line Pilots Association submitted a comment [4 pages in PDF] highly critical of use of all sorts of consumer electronic devices on or near aircraft.

A group named Morality in Media submitted a comment [10 pages in PDF] in which it complained about "this cacophony of cellular banter". This comment stated that the "quiet and unobtrusiveness of airplane travel can be a godsend". Hence, it recommended that there be cell phone sections on airplanes, like smoking sections in restaurants.

FBI Seeks CALEA Rules in FCC Proceeding Regarding Wireless Devices on Aircraft

5/26. The Federal Bureau of Investigation (FBI) and Department of Homeland Security (DHS) submitted a joint comment [23 pages in PDF] to the Federal Communications Commission (FCC) in its proceeding on the use of consumer wireless devices aboard aircraft. The FBI and DHS seek CALEA rules, even though this is not a CALEA proceeding.

They argue that the service providers "implicated by this proceeding" must "comply with the requirements of CALEA". The 1994 Communications Assistance for Law Enforcement Act (CALEA) requires telecommunications carriers to "ensure that its equipment, facilities, or services that provide a customer or subscriber with the ability to originate, terminate, or direct communications are capable of expeditiously isolating and enabling the government ... intercept, to the exclusion of any other communications, all wire and electronic communications carried by the carrier ...".

The FCC's NPRM [28 pages in PDF] did not propose any new rules implementing, or ask for comments on, the CALEA. Nevertheless, the FBI has for several years been submitting documents to the FCC that request rulings and/or rules related to the CALEA, in non-CALEA proceedings.

The FCC's notice of proposed rulemaking (NPRM) addresses airborne use of cell phone service, which is provided by carriers, and use of other wireless services, such as internet access, which may not be provided by carriers. The FBI's request, by implication, seeks expansion of the scope of the CALEA to non-carriers. This is an argument that the FBI has made in greater detail in other filings with the FCC. What is new in this filing is that the FBI asks the FCC to promulgate extensive rules regulating the design and use on airborne wireless systems, under the purported authority of the CALEA.

The FCC adopted the present NPRM on December 15, 2004. It released it on February 15, 2005. This NPRM is FCC 04-187 in WT Docket No. 04-435. The FCC also has an open proceeding regarding CALEA related issues. The FBI asked for that proceeding, and has filed comments in that proceeding. That NPRM is FCC 04-187 in ET Docket No. 04-295 and RM-10865. See, story titled "Summary of the FCC's CALEA NPRM" in TLJ Daily E-Mail Alert No. 960, August 17, 2004.

The FBI states that terrorists have hijacked aircraft, and that it therefore wants to be able to immediately intercept and disrupt any onboard communications.

However, the FBI also articulates several considerations that militate against allowing any onboard wireless devices. For example, it states that "the use of personal wireless telephones onboard aircraft could potentially facilitate a coordinated attack". It also states that "Although the potential for terrorists and other criminals to use communications devices as remote-controlled improvised explosive devices (``RCIEDs´´) already exists, the risk of RCIED use may, at least in theory, be increased as a result of the ability of aircraft passengers to now effectively use personally-owned wireless telephones and similar communications devices in-flight."

The FBI asks the FCC to impose numerous design requirements. For example, it wants the FCC to require that "any wireless telecommunications capability to or from an aircraft operating in United States airspace utilize mobile switching centers (``MSCs´´) located within the United States' borders only and not MSCs located along the border in neighboring countries."

It further wants the FCC to mandate intercept capability within 10 minutes from the moment of notification.

It also wants the FCC to require "that all wireless/air-to-ground carriers/pico cell providers (1) create and maintain the capability to record (and do record) at some central, land-based storage facility located within the United States, at a minimum, non-content call records relating to all calls processed to and from wireless telephones onboard aircraft operating within United States air space, international air space contiguous or attendant to United States air space, and international air space used en route to or from United States air space or destinations, and (2) provide law enforcement with immediate access to such records upon lawful request." (Parentheses in original.)

The FBI also wants the FCC to write rules "concerning in-flight personal wireless phone use"; it asserts that "unrestricted use" could lead to "air rage". The FBI offered no suggests regarding what these rules of personal etiquette should require.

And finally, the FBI argues that the FCC "must consider ... commercial equities". However, it does not explain what a "commercial equity" is.

GAO Reports on Government Use of RFID Technology

5/27. The Government Accountability Office (GAO) released a report [41 pages in PDF] titled "Information Security: Radio Frequency Identification Technology in the Federal Government". This report reviews the technology, federal agency initiatives to use RFID technology, and standards for interoperability.

The report also addresses privacy and security issues. It states that "Several security and privacy issues are associated with federal and commercial use of RFID technology. The security of tags and databases raises important considerations related to the confidentiality, integrity, and availability of the data on the tags, in the databases, and in how this information is being protected."

The report elaborates that "these issues included ensuring that only authorized readers or personnel have access to information, maintaining the integrity of the data on the chip and stored in the databases, and ensuring that critical data is fully available when necessary. Other issues with implementing the technology included the potential for various attacks, such as counterfeiting or cloning, replay, and eavesdropping; the possibility of electronic collisions when multiple tags and/or readers are present; and the presence of unauthorized components that may interfere or imitate legitimate system components."

It also states that "Without effective security controls, data on the tag can be read by any compliant reader; data transmitted through the air can be intercepted and read by unauthorized devices; and data stored in the databases can be accessed by unauthorized users."

The report continues that the security risks associated with the use of RFID technology can be mitigated by using the risk-based framework mandated by the Federal Information Security Management Act (FISMA), encryption, and authentication.

The report also reviews privacy issues. It states that many uses of RFID technology have no privacy implications, such as inventory control. However, other uses involve issues of notification to individuals, tracking of individuals, and profiling of individuals. There is also the matter of secondary uses, or mission creep, for data collected with RFID technology.

The report states that "tags can be read by any compatible reader. If readers and tags become ubiquitous, tagged items carried by an individual can be scanned unbeknownst to that individual. Further, the increased presence of readers can provide more opportunities for data to be collected and aggregated. As the uses of technology proliferate, consumers have raised concerns about whether certain collected data might reveal personal information such as medical predispositions or personal health histories and that the use of this information could result in denial of insurance coverage or employment to the individual."

The report also states that "three agencies raised the issue of protecting personal data, such as date of birth and biometrics, contained on the tag as well as the associated database that stores this information."

The report reviews existing statutes. One point that is makes is that "As a practical matter ... the Privacy Act is likely to have a limited application to the implementation of RFID technology because the act only applies to the information once it is collected, not to whether or how to collect it."

Publication Schedule
The TLJ Daily E-Mail Alert was not published on Friday, May 27, or on Monday, May 30.
Washington Tech Calendar
New items are highlighted in red.
Tuesday, May 31

The House will not meet on Monday, May 30 through Friday, June 3. See, House calendar. The House will next meet at 2:00 PM on Monday, June 7. See, Republican Whip Notice.

The Senate will not meet on Monday, May 30 through Friday, June 3. See, Senate calendar.

Wednesday, June 1

Day one of a two day conference titled "Broadband Policy Summit 2005: A New Leadership Blueprint" hosted by Pike & Fischer. See, notice. Location: Willard InterContinental Hotel.

Deadline to submit comments to the National Institute of Standards and Technology (NIST) regarding two modes of operation -- Galois Counter Mode (GCM) or the Carter-Wegman + Counter (CWC) -- for use with the Advanced Encryption Standard (AES). See, NIST web page regarding modes.

Thursday, June 2

9:00 AM. The Center for Democracy and Technology (CDT) and the Institute for Politics, Democracy and the Internet (IPDI) will host a news conference regarding the Federal Election Commission's (FEC) notice of proposed rulemaking (NPRM) regarding regulation of internet related speech. The speakers will be John Morris (CDT), Carol Darr (IPDI), Mike Krempasky (RedState.Org), and Michael Bassik (MSHC Partners). See, the CDT/IPDI web page regarding this NPRM. There will be a light breakfast. Please RSVP to Danielle Wiblemo dani at cdt dot org or 202 637-9800. Location: 1634 I St. NW, Suite 1100.

10:00 AM - 11:30 AM. The Federal Communications Commission's (FCC) Media Security and Reliability Council (MSRC) will meet. See, notice [PDF]. Location: Commission Meeting Room, FCC, 445 12th Street, SW.

12:15 - 2:30 PM. The DC Bar Association will host a panel discussion titled "The Nuts And Bolts Of Transfers Of Control At The FCC". The speakers will be Jim Bird (FCC Office of General Counsel), William Dever (FCC Wireline Competition Bureau), Susan O'Connell (FCC International Bureau), Nina Shafran (FCC Media Bureau), and Jeff Tobias (FCC Wireless Telecommunications Bureau). The price to attend ranges from $10-$20. For more information, contact 202-626-3463. See, notice. Location: D.C. Bar Conference Center, 1250 H Street NW, B-1 Level.

Day one of a two day conference titled "Broadband Policy Summit 2005: A New Leadership Blueprint" hosted by Pike & Fischer. See, notice. Location: Willard InterContinental Hotel.

Friday, June 3

TIME? The U.S. District Court (DC) will hold a hearing in US v. Microsoft, D.C. No. 98-1232 (CKK). Location: 333 Constitution Ave., NW.

Deadline to submit comments to the Federal Election Commission's (FEC) in response to its notice of proposed rulemaking (NPRM) regarding regulation of internet related speech.

Monday, June 6

The Senate will return from its Memorial Day recess. See, Senate calendar.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Sandisk v. Memorex, a patent infringement case involving flash memory technology. This is App. Ct. No. 04-1422. It is an appeal from the U.S. District Court (NDCal). Location: U.S. Court of Appeals, LaFayette Square, 717 Madison Place, Courtroom 203.

12:00 NOON. The Federal Communications Bar Association's (FCBA) will hold an event titled "Annual Meeting and Luncheon". The speaker will be Sen. Ted Stevens (R-AK), the Chairman of the Senate Commerce Committee. See, registration form [MS Word]. Prices range from $35-$65. Location: Capital Hilton, Congressional Ballroom, 16th and K Streets, NW.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its notice of proposed rulemaking (NPRM) [15 pages in PDF] regarding implementation of the satellite broadcast carriage requirements in the noncontiguous states, as required by Section 210 of the Satellite Home Viewer Extension and Reauthorization Act of 2004 (SHVERA). The FCC adopted this NPRM at its April 29, 2005 meeting. This NPRM is FCC 05-92 in MB Docket No. 05-181. See, notice in the Federal Register, May 20, 2005, Vol. 70, No. 97, at Pages 29252-29253.

Tuesday, June 7

8:00 AM. The U.S. Chamber of Commerce will host a breakfast. The speaker will be Rep. Bill Thomas (R-CA), the Chairman of the House Ways & Means Committee. The price to attend ranges from free to $55. See, notice. Location: US Chamber, 1615 H Street, NW.

8:30 AM - 5:00 PM. Day one of a three day meeting of the National Institute of Standards and Technology's (NIST) Information Security and Privacy Advisory Board (ISPAB). See, notice in the Federal Register, May 20, 2005, Vol. 70, No. 97, at Page 29279. Location: Doubletree Hotel and Executive Meeting Center, 1750 Rockville Pike, Rockville, MD.

9:00 AM. The Bureau of Industry and Security's (BIS) Regulations and Procedures Technical Advisory Committee (RPTAC) will meet. The agenda includes updates on encryption controls, AES, and the proposed rule on deemed export related regulatory requirements. See, notice in the Federal Register, May 23, 2005, Vol. 70, No. 98, at Page 29478. Location: Room 3884, Hoover Building, 14th Street between Constitution and Pennsylvania Avenues, NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in International Rectifier Corp. v. Samsung. This is App. Ct. No. 04-1429. This is an appeal from the U.S. District Court (CDCal) in a patent case. Location: U.S. Court of Appeals, LaFayette Square, 717 Madison Place, Courtroom 402.

12:00 NOON - 1:30 PM. The DC Bar Association will host a panel discussion titled "Current Intellectual Property Issues in Europe". The speakers will be Alexander Leisten, Peter Ruess, and Barbara Berschler. The price to attend ranges from $10-$30. For more information, contact 202-626-3463. See, notice. Location: D.C. Bar Conference Center, 1250 H Street NW, B-1 Level.

2:30 PM. The Senate Foreign Relations Committee's Subcommittee on East Asian and Pacific Affairs will hold a hearing titled "The Emergence of China Throughout Asia: Security and Economic Consequences for the U.S." See, notice. Location: Room 419, Dirksen Building.

People and Appointments

5/27. Paul McNulty was named Chairman, and Johnny Sutton was named Vice Chairman, of the Attorney General's Advisory Committee of United States Attorneys. McNulty is the U.S. Attorney for the Eastern District of Virginia. Sutton is the U.S. Attorney for the Western District of Texas. See, DOJ release.

5/27. Randall Stephenson was named to the SBC Board of Directors. He is SBC's Chief Operating Officer. See, SBC release.

Pascal Lamy5/26. The World Trade Organization (WTO) formally selected Pascal Lamy to be the WTO's Director-General, for a four year term beginning on September 1, 2005. The selection had been previously announced. See, WTO release.

5/26. The Federal Communications Commission (FCC) named twenty persons to the FCC's Consumer Advisory Committee. See, FCC release.

5/26. President Bush nominated Philip Morrison to be Assistant Secretary of the Treasury (Tax Policy). The person who holds this position, at least nominally, is responsible for formulating policy with respect to taxation that affects technology and innovation. Morrison is a principal with the Washington National Tax Office of Deloitte Tax. Before that, he was partner at the law firm of Baker & McKenzie. See, White House release and release.

5/26. President Bush nominated Randal Quarles to be an Under Secretary of the Treasury. See, White House release.

5/26. President Bush nominated Israel Hernandez to be Assistant Secretary of Commerce and Director General of the United States and Foreign Commercial Service. See, White House release and release.

5/24. Motorola's Board of Directors appointed Samuel Scott Lead Director for a one-year term. He has been a member of the board since 1993. He is also the Ch/P/CEO of Corn Products International. See, Motorola release.

5/24. Rambus name Mark Horowitz Chief Scientist. See, Rambus release.

5/24. 3Com named Marc Willebeek-LeMair Chief Technology Officer. He was previously the CTO and Chief Strategy Officer of TippingPoint, 3Com's security division. See, 3Com release.

More News

5/26. The Federal Communications Commission's (FCC) Consumer & Governmental Affairs Bureau (CGB) that it now provides a "Consumer Information Registry". It stated in a release that this is an "e-mail service that will deliver to subscribers customized information about the FCC’s actions and related developments". It added that "The Registry is an Internet database".

5/26. John Sammis, Minister-Counselor for Economic Affairs at the U.S. Mission to the EU gave a speech titled "Expanding the Transatlantic Economy" to the European Parliament's International Trade Committee. He stated that "New technologies and market forces will continue to push the U.S. and European economies closer. Managing the process of increasing economic interdependence will require ambitious and innovative new approaches."

5/24. Michael Gallagher, head of the National Telecommunications and Information Administration (NTIA), gave a speech titled "Wireless Innovation: Driving U.S. Economic Growth". See, presentation slides [20 pages in PDF].

5/24. The U.S. Court of Appeals (DCCir) issued a per curiam order [1 page in PDF] in  denying Core Communications' petition for writ of mandamus. This proceeding is In re: Core Communications, Inc., Petitioner, U.S. Court of Appeals for the District of Columbia Circuit, No. 04-1179.

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