6/22. The U.S. Chamber of Commerce's National Chamber Foundation hosted a panel discussion titled "The Effect of Municipal Broadband Networks on Competition".

Dianah Neff spoke on behalf of the city of Philadelphia, which plans to provide wireless broadband internet access services. James Baller also advocated the interests of municipalities that may provide municipal broadband services. See also, Baller's paper [PDF] titled "Deceptive Myths About Municipal Broadband".

Michael Balhoff, an attorney who was previously a telecom analyst at Legg Mason, and James Speta, a law professor at Northwestern University, argued that municipal broadband is not sound public policy.

Dianah Neff stated that a low percentage of Philadelphia residents who live in low income or minority neighborhoods have broadband access. Philadelphia wants to increase the broadband uptake in these neighborhoods. She added that the "digital divide is local". Her argument sounded like a universal service argument. However, in response to questions from the moderator, she said that Philadelphia's service will be offered "to anyone that wants it".

Neff also advanced a business rationale. She said that Philadelphia wants to make low income, minority, and light industrial neighborhoods attractive places for businesses to locate.

Baller argued that municipalities can provide broadband services in some areas sooner than the private sector would. These communities should not have to wait for private service offerings. He also said that in some cases municipalities want to provide services that provide customers more bandwidth than the private sector does.

Speta argued that if municipalities want there to be be greater uptake of broadband in poorer neighborhoods, they should pursue demand side policy, rather than a supply side policy. That is, instead of providing the service for everyone, they should be giving broadband vouchers to poor people.

Speta also argued that even in an area where there might end up being only one broadband provider, and that provider is a natural monopoly, the government should not be the provider. He said that it would be more efficient to have a private provider that in turn is regulated by the government.

Balhoff argued that there are many risks associated with government provision of broadband services. It might not allow competitive access to municipal facilities, such as streets, conduits and poles. It might end up cross subsidizing its service. And, in the end, it might drive the private providers out of the market.

He said that competitive choice is much more efficient at punishing under performing service providers than is the government.

Balhoff also responded to Neff's business promotion argument. He noted Philadelphia plans a wi-fi system, which is less secure that fiber based broadband. He said that businesses will not put their assets at risk in a wireless environment.

Speta and Balhoff also argued if municipalities do provide broadband services, they should also adopt pro-competitive rules, covering access to poles and conduits, and other topics.

This was a Chamber of Commerce luncheon event. Most of the attendees who offered comments, or asked questions, were associated with private sector service providers.

Qwest's Larry Sanders suggested that voters should be offered a referendum to approve any municipal plan to provide broadband services, because it involves government funding of something that is not traditionally a government function. Neff argued against holding referenda. She reasoned that voters can vote for their elected officials.

Harold Salter of T-Mobile asked whether, if municipalities provide broadband service, they will then seek universal service funding, and the Congress or the Federal Communications Commission (FCC) will be asked to create another universal service program.

David Cohen of the U.S. Telecom Association (USTA) asked whether municipalities will eventually privatize their municipal broadband operations. Baller responded that the history of municipal electricity services suggests an affirmative answer.

6/21. Sen. John Ensign (R-NV) spoke at an event hosted by the Progress and Freedom Foundation (PFF) on reform of laws pertaining to telecommunications and electronic communications networks and services.

Sen. Ensign discussed a bill that he plans to introduce in the Senate in July, after the July 4 recess, that pertains to telecommunications and information technology.

He was intentionally vague about the contents of his bill. He said that, generally, he wants to take the federal and state governments "out of the business of picking winners and losers".

Sen. Ensign (at right) also said that there are now multiple providers in the video market; there is no longer a monopoly situation. He said that it therefore no longer makes sense to have over thirty thousand local video franchisers. He said that video providers should not have to cut deals with all of these franchisers. Thus, he said that the cable and phone companies should be freed up from these franchisers.

He also spoke about Skype. He said that it is based outside of the U.S., and therefore, "it is out of the reach of U.S. regulators" and tax collectors. He suggested that the U.S. regulatory framework has to take this into consideration. He said that a "patchwork quilt of regulation" could drive customers to foreign companies.

He also said that telecom is taxed more heavily than everything except alcohol and tobacco. He noted that "if you can get around the taxes, people are going to get around the taxes", with services like Skype.

He concluded from this that "we have got to understand what technology is doing to our market place", and take this into account in designing a regulatory and tax regime. He added that "we have to get out of the way of innovators."

He did not, however, explain how his legislation will address these principles.

He said that his bill will not address universal service issues. He added that Sen. Ted Stevens (R-AK), the Chairman of the Senate Commerce Committee (SCC) very concerned about this issue, and plans to address that in his legislation.

He also spoke with reporters after his formal presentation. He also said that his bill will not address a transition to digital television. He declined to state what his bill will contain regarding VOIP.

He was also asked about hearings and listening sessions. Sen. Stevens uses the term "listening session" to describe closed, secret meetings with undisclosed parties, that he holds in lieu of public committee hearings. Sen. Stevens has stated that he is holding listening sessions on revisions to telecommunications law. He also plans to then introduce a bill, and rush it through the Congress with little public understanding of, or input in, the process.

Sen. Ensign, who is a member of the SCC, said that he has attended these listening sessions, and that he is holding some of his own. He said that whether there are any public hearing on his bill will be up to Sen. Stevens.

6/22. Matthew Berry, one of the Department of Justice's (DOJ) leading authorities and advocates on law enforcement surveillance and seizure of electronic communications and records of service providers, will join the Federal Communications Commission (FCC) as acting Deputy General Counsel.

Although, he has also held other positions, and worked on other issues, including First Amendment, school choice and vouchers, affirmative action, and others. The FCC has not stated what matters he will handle.

He is currently Counselor to the Assistant Attorney General in charge of the DOJ's Office of Legal Policy (OLP). (He starts at the FCC on Monday, June 27.) He previously worked as an attorney-adviser in the DOJ's Office of Legal Counsel (OLC).

He has recently been working at the DOJ, and with the Congress, on issues related to government investigations that involve surveillance in the context of electronic communications, especially the sixteen sections of the USA PATRIOT Act that are scheduled to sunset at the end of 2005. However, he has not worked on CALEA related issues.

He testified before the House Judiciary Committee's (HJC) Subcommittee on Crime on May 26, 2005. See, prepared testimony [PDF]. He has also accompanied senior DOJ officials on their trips to Capitol Hill. He has sat immediately behind other DOJ witnesses at other recent hearings related to extension of the expiring provisions of the PATRIOT Act.

Berry also worked as a law clerk for U.S. Supreme Court Justice Clarence Thomas and for U.S. Court of Appeals (DCCir) Judge Laurence Silberman. Judge Silberman has been a member of the Foreign Intelligence Surveillance Court of Review (FISCOR).

The FCC release [PDF] announcing his appointment does not state what Berry's job responsibilities or areas of focus will be.

The DOJ has filed numerous comments in various FCC rulemaking proceedings regarding imposing requirements upon communications and internet services providers. The Federal Bureau of Investigation (FBI) and other components of the DOJ want to be able to broadly and easily intercept and access communications that involve new information technologies.

For example, pursuant to a petition from the DOJ, the FCC opened a proceeding regarding the CALEA. On August 9, 2004, the FCC issued a Notice of Proposed Rulemaking and Declaratory Ruling (NPRM & DR) [100 pages in PDF] regarding imposing Communications Assistance for Law Enforcement Act (CALEA) like obligations upon broadband internet access services and voice over internet protocol (VOIP). See, story titled "Summary of the FCC's CALEA NPRM" in TLJ Daily E-Mail Alert No. 960, August 17, 2004. This NPRM is FCC 04-187 in ET Docket No. 04-295 and RM-10865.

The CALEA requires that telecommunications carriers "shall 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 ..." That is, the CALEA provides that telecommunications carriers must design their equipment and networks to facilitate lawfully conducted wiretaps and other intercepts. Statutes other than the CALEA address what intercepts are lawful. The DOJ requests that the FCC, in effect, expand the scope of the CALEA to also cover broadband service providers, voice over internet protocol (VOIP) service providers, and others.

The DOJ has not been able to obtain from the Congress an amendment to the CALEA. It has turned to the FCC to obtain by rulemaking what it has not obtained by legislation. The FCC's statutory authority for providing the rules sought by the DOJ is questionable. Hence, if the FCC determines that it will write rules imposing CALEA like obligations on broadband service providers, and voice over internet protocol (VOIP) service providers, then it will need of someone with the background and expertise of Matthew Berry, not only to write new rules, but also to do so in a manner that might survive judicial review. And then, the FCC may need to actually defend those rules in the courts.

See also, story titled "Rep. Pickering Suggests Relationship Between the DOJ's Brand X Cert Petition and the FCC's CALEA NPRM" in TLJ Daily E-Mail Alert No. 974, September 10, 2004.

But then, the FCC has not stated that Berry will be involved in the CALEA proceeding. Moreover, Berry's background is far broader than electronic surveillance law.

He worked for the Institute for Justice (IJ) before clerking for Justice Thomas. The IJ is a policy oriented litigation group based in Washington DC that advocates individual liberty, limited government, and free markets. In May, the IJ won at the Supreme Court its constitutional challenge to state laws that burden internet wine sales. See, May 16, 2005 opinion [73 pages in PDF] in Granholm v. Heald and Swedenburg v. Kelly. However, the IJ's Chip Mellor told TLJ that Berry did not work on that case.

However, Berry played a minor role in the IJ's challenge to a protectionist state statute in Craigmiles v. Giles. See, opinion of the U.S. Court of Appeals (6thCir), and story titled "6th Circuit Buries Protectionist Statute in Tennessee Casket Case" in TLJ Daily E-Mail Alert No. 563, December 9, 2002. Swedenburg was a commerce clause case. Craigmiles was a due process and equal protection case. However, both cases set precedents that businesses involved in e-commerce might cite in challenges to state statutes or regulatory regimes that discriminate against e-commerce.

Berry was also involved in the IJ's opposition to the FCC's racial hiring goals for radio and TV licensees. And, he wrote an opinion piece for the July 9, 1999 issue of the National Review on the FCC's affirmative action rules titled "Race Rules the Air -- FCC's affirmative-action regulations".

Berry has also taught First Amendment and election law at William & Mary. See also, Department of State biography [PDF].

6/22. Federal Communications Commission (FCC) Chairman Kevin Martin named Samuel Feder (at left) acting General Counsel. Feder was Martin's Legal Advisor for spectrum and international issues. Before that, he handled common carrier issues. And before that, he was a Legal Advisor to former FCC Commissioner Harold Furchtgott-Roth. Martin was also a Legal Advisor to Furchtgott-Roth. Feder has also worked for the law firms of Harris Wiltshire & Grannis and Kellogg Huber, and for the Department of Justice. See, FCC release [PDF].

6/22. Federal Communications Commission (FCC) Chairman Kevin Martin named Emily Willeford Special Advisor for International Issues and Deputy Chief of Staff. Like Martin, Willeford worked for the Bush-Cheney 2000 election campaign. See, FCC release [PDF].

The House will meet at 10:00 AM for legislative business. See, Republican Whip Notice.

The Senate will meet at 9:00 AM. It will resume consideration of HR 6, the energy bill.

The Supreme Court will meet.

The Senate Judiciary Committee (SJC) may hold an executive business meeting. The SJC frequently cancels meetings without notice. The agenda includes consideration of S 751, the "Notification of Risk to Personal Data Act". See, notice. The SJC rarely follows its agenda. Press contact: Blain Rethmeier (Specter) at 202 224-5225, David Carle (Leahy) at 202 224-4242 or Tracy Schmaler (Leahy) at 202 224-2154. Location: Room 226, Dirksen Building.

10:00 AM. The Senate Commerce Committee will hold a business meeting. The agenda includes several non-technology related bills and several nominations, including those of Edmund Hawley (to be Assistant Secretary of Homeland Security for the Transportation Security Administration), Israel Hernandez (to be Assistant Secretary of Commerce and Director General of the United States and Foreign Commercial Service), William Jeffrey (to be Director of the National Institute of Standards and Technology), Ashok Kaveeshwar (to be Administrator of the Research and Innovative Technology Administration at the Department of Transportation), David Sampson (to be Deputy Secretary of Commerce), and John Sullivan (to be General Counsel of the Department of Commerce). Press contact: Melanie Alvord (Stevens) at 202 224-8456 or Melanie_Alvord at commerce dot senate dot gov, or Andy Davis (Inouye) at 202 224-4546 or Andy_Davis at commerce dot senate dot gov. Location: Room 253, Russell Building.

LOCATION CHANGE. 10:00 AM. The Senate Finance Committee will hold a hearing regarding U.S. China economic relations. There will be three witness panels. The first will be made up of Senators. The second will be Alan Greenspan (Chairman of the Federal Reserve Board), and John Snow (Secretary of the Treasury). The third panel will include Sean Maloney (EVP of Intel, on behalf of the U.S. Chamber of Commerce), Kenneth Rogoff (Harvard), Neal Bredehoeft (American Soybean Association), Al Lubrano (Technical Materials, Inc., on behalf of the National Association of Manufacturers). Location: Room G-50, Dirksen Building.

10:00 AM - 5:00 PM. The Department of Homeland Security's (DHS) Homeland Security Advisory Council (HSAC) will meet. Most of the meeting is closed to the public. See, notice in the Federal Register, June 8, 2005, Vol. 70, No. 109, at Page 33519. Secretary of Homeland Security Michael Chertoff will speak at 10:00 AM. The open portion of the meeting, from 10:00 AM - 12:00 NOON, will be held at the Park Hyatt, 24th and M Streets, NW. The DHS states that "FINAL ACCESS is at 9:45 AM.

12:15 PM. The Federal Communications Bar Association's (FCBA) Mass Media Practice Committee will host a brown bag lunch. Location: National Association of Broadcasters (NAB), 1771 N St., NW, Conference Rooms A & B.

2:00 - 4:00 PM. The Federal Communications Commission's (FCC) WRC-07 Advisory Committee's Informal Working Group 3 (IMT-2000 and 2.5 GHz Sharing Issues) will meet. See, notice [PDF]. Location: FCC, 7th Floor South Conference Room (7-B516), 445 12th Street, SW.

2:00 PM. The Senate Appropriations Committee's Subcommittee on Commerce, Justice, Science and Related Agencies will meet to mark up HR 2862, the appropriations bill for Science, the Departments of State, Justice, and Commerce, and related agencies for FY 2006. Location: Room 106, Dirksen Building.

The House will may meet at 9:00 AM for legislative business. See, Republican Whip Notice.

10:00 AM - 12:00 NOON. The Progress and Freedom Foundation (PFF) will host a program on media ownership. Adam Thierer (PFF) will discuss his book titled Media Myths: Making Sense of the Debate over Media Ownership [Amazon]. Susan Ness (former Commissioner of the Federal Communications Commission) will comment. Press contact: Patrick Ross at 202 289-8928 or pross at pff dot org. See, notice and registration page. Location: National Press Club, 529 14th St. NW, 13th Floor.

10:00 AM. The Federal Communications Commission (FCC) will hold a pre-auction seminar for its Low Power Television Auction, Auction No. 81. The deadline to register is June 21. See, Public Notice [PDF] numbered DA 05-1624, and dated June 9, 2005. Location: FCC, 445 12th Street, SW.

12:15 PM. The Federal Communications Bar Association (FCBA) will host an event titled "Wireless Luncheon". The price to attend is $15. See, registration form [PDF]. Location: Sidley Austin, 1501 K Street, Room 6-A.

8:00 AM - 5:00 PM. Day one of a two day workshop hosted by the National Institute of Standards and Technology (NIST) regarding the Federal Information Processing Standards (FIPS) 201 implementation. Registration is required. See, notice in the Federal Register, June 9, 2005, Vol. 70, No. 110, at Pages 33734. Location: undisclosed.

1:00 - 5:00 PM. The Antitrust Modernization Commission will hold a hearing on indirect purchaser litigation. See, notice in the Federal Register, June 27, 2005, Vol. 70, No. 109, at Pages 33447 - 33448. Location: Federal Trade Commission, 600 Pennsylvania Avenue, NW, Room 432.

Extended deadline to submit reply 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. See, order [2 pages in PDF] (DA 05-1015) dated April 5, 2005 extending deadlines.

Extended deadline to submit comments to the Bureau of Industry and Security (BIS) in response to its notice in the Federal Register pertaining to deemed exports. The BIS seeks comments regarding the report [64 pages in PDF] written by the Department of Commerce's (DOC) Office of Inspector General (OIG) titled "Deemed Export Controls May Not Stop the Transfer of Sensitive Technology to Foreign Nationals in the U.S.". See, Federal Register, March 28, 2005, Vol. 70, No. 58, at Pages 15607 - 15609. See also, notice in the Federal Register, May 27, 2005, Vol. 70, No. 102, at Pages 30655 - 30656.

Deadline to submit initial comments to the Federal Communications Commission's (FCC) Office of Engineering and Technology (OET) in response to its Public Notice [PDF] regarding the United Telecom Council (UTC) request to be the Access Broadband over Power Line (Access BPL) database manager. This is DA 05-1637, dated June 9, 2005, in ET Docket No. 04-37.

The 800 MHz band reconfiguration will begin, in the National Public Safety Planning Advisory Committee (NPSPAC) regions assigned to Wave 1. See, public notice [5 pages in PDF] of the Federal Communications Commission's (FCC) Wireless Telecommunications Bureau. The FCC adopted a report and order on July 8, 2004 that addressed 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. 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. This public notice is DA 05-1546 in WT Docket No. 02-55.

8:00 AM - 5:00 PM. Day two of a two day workshop hosted by the National Institute of Standards and Technology (NIST) regarding the Federal Information Processing Standards (FIPS) 201 implementation. Registration is required. See, notice in the Federal Register, June 9, 2005, Vol. 70, No. 110, at Pages 33734. Location: undisclosed.

9:30 AM. Day one of a two day hearing of the Federal Election Commission (FEC) regarding its proposed rules regarding regulation of speech on the internet. See, notice and notice in the Federal Register, Vol. 70, No. 63 April 4, 2005, at pages 16967 - 16979. See also, list of witnesses, with links to written comments. Location: FEC, 999 E Street, NW.

CANCELLED. 10:00 AM - 1:00 PM. The Federal Communications Commission's (FCC) Network Reliability and Interoperability Council (NRIC) will meet. See, notice in the Federal Register, June 1, 2005, Vol. 70, No. 104, at Page 31470. Location: FCC, 445 12th St., SW, Room TW-305. See, notice of cancellation in the Federal Register, June 22, 2005, Vol. 70, No. 119, at Page 36169.

2:00 - 3:00 PM. The Federal Communications Commission's (FCC) North American Numbering Council (NANC) will meet by teleconference. See, Public Notice numbered DA 05-1620, and dated June 9, 2005.

3:00 - 5:00 PM. The House Science Committee's Subcommittee on Environment, Technology, and Standards will hold a hearing titled "Small Business Innovation and Research: What is the Optimal role of Venture Capital?". The witnesses will be Ron Cohen (CEO of Acorda Technologies), Ann Eskesen (President of Innovation Development Institute, and Jonathan Cohen (CEO 20/20 Gene Systems). Press contact: Joe Pouliot at 225-0581 or joe dot pouliot at mail dot house dot gov. Location: Room 2318, Rayburn Building.

Day one of a four day conference of the Wireless Communications Association International (WCA) titled "WCA 2005". See, FCC notice and notice in the Federal Register, June 14, 2005, Vol. 70, No. 113, at Pages 34477 - 34478.

9:30 AM. Day two of a two day hearing of the Federal Election Commission (FEC) regarding its proposed rules regarding regulation of speech on the internet. See, notice and notice in the Federal Register, Vol. 70, No. 63 April 4, 2005, at pages 16967 - 16979. See also, list of witnesses, with links to written comments. Location: FEC, 999 E Street, NW.

10:00 AM. The Senate Commerce Committee will hold a hearing on "Spectrum/DTV". Press contact: Melanie Alvord (Stevens) at 202 224-8456 or Melanie_Alvord at commerce dot senate dot gov, or Andy Davis (Inouye) at 202 224-4546 or Andy_Davis at commerce dot senate dot gov. Location: Room 253, Russell Building.

10:00 AM. The House Science Committee's Subcommittee on Research will hold a hearing titled "Nanotechnology: Where Does the U.S. Stand?". The witnesses will be Floyd Kvamme (Co-Chair of the President's Council of Advisors on Science and Technology), Padmasree Warrior (CTO of Motorola), Sean Murdock (NanoBusiness Alliance), and Matthew Nordan (Lux Research). Press contact: Joe Pouliot at 225-0581 or joe dot pouliot at mail dot house dot gov. Location: Room 2318, Rayburn Building.

12:15 PM. The Federal Communications Bar Association's (FCBA) Young Lawyers Committee will host a brown bag lunch titled "Analyze This: Financial Analysts Explain the Impact of Telecom Regulation on Investors". The speakers will be Rudy Baca (Precursor Group), Rebecca Arbogast (Legg Mason), and Susan Lynner (Prudential Financial). No RSVP necessary. For more information, contact Debrea Terwilliger at 202 383-3349 or debrea dot terwilliger at wbklaw dot com, or Jason Friedrich at 202 354-1340 or jason dot friedrich at dbr dot com. Location: Willkie Farr & Gallagher, 1875 K Street, NW, 2nd Floor.

Day two of a four day conference of the Wireless Communications Association International (WCA) titled "WCA 2005". See, notice. Location: Marriott Wardman Park Hotel.

TENTATIVE. The House Judiciary Committee's Subcommittee on Courts, the Internet and Intellectual Property (CIIP) may meet to mark up HR 2795, the "Patent Act of 2005". Rep. Lamar Smith (R-TX), the Chairman of the CIIP Subcommittee, announced this meeting at a hearing on June 9, 2005. See, story titled "House CIIP Subcommittee Holds Hearing on Patent Bill" in TLJ Daily E-Mail Alert No. 1,151, June 10, 2005. However, this meeting does not appear on the Committee's calendar. Location: Room 2141, Rayburn Building.

10:00 AM. The Senate Commerce Committee's Subcommittee on Technology, Innovation, and Competitiveness will hold a hearing on e-health initiatives. Press contact: Melanie Alvord (Stevens) at 202 224-8456 or Melanie_Alvord at commerce dot senate dot gov, or Andy Davis (Inouye) at 202 224-4546 or Andy_Davis at commerce dot senate dot gov. Location: Room 253, Russell Building.

11:00 AM - 12:00 PM. The National Science Foundation's (NSF) National Science Board's Committee on Programs and Plans will meet. The agenda includes "Review of NSF draft Cyber Infrastructure Vision document" and "Next steps for developing a Board-approved High Performance Computing Strategy for NSF". See, notice in the Federal Register: June 22, 2005, Vol. 70, No. 119, at Page 36213. Location: NSF, Public Meeting Room 130, 4201 Wilson Boulevard, Arlington, VA.

Day three of a four day conference of the Wireless Communications Association International (WCA) titled "WCA 2005". See, notice. Location: Marriott Wardman Park Hotel.

Deadline to submit initial comments to the Copyright Office's Copyright Royalty Board regarding its interim regulations governing the organization, administration, and procedures of the Copyright Royalty Board. See, notice in the Federal Register, May 31, 2005, Vol. 70, No. 103, at Pages 30901 - 30916.

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