6/23. Sen. Ted Stevens (R-AK), the Chairman of the Senate Commerce Committee (SCC), spoke about telecom legislation at a SCC meeting on pending nominees.

Sen. Stevens has previously stated that he has been conducting "listening sessions", rather than open SCC hearings, about proposals for revising the Communications Act, and related matters. His meetings are closed and secret.

At the June 23 meeting, Sen. Stevens said that "We ask that you understand that we’ve asked the staff to prepare the working drafts or the bills that any Senator wishes to have considered in connection with the telecom issues that we've had listening sessions on, that we have those drafts before you leave for the Fourth of July recess."

Earlier this week, Sen. John Ensign (R-NV), a member of the SCC, discussed his plans to introduce a bill after the July 4 recess. See, story titled "Sen. Ensign to Introduce Telecom Bill in July" in TLJ Daily E-Mail Alert No. 1,160, July 23, 2005.

He continued: "Following that Fourth of July recess we intend to find a day to have a hearing, a substantial hearing -- it will take quite a long time as a matter of fact to explore some of the issues that we think are really in serious dispute with regard to the telecom issues before we proceed to try and work out a mark-up of the bill or bills that will reflect our judgment on the various telecom issues we should find a way to get Senate action on this year, hopefully, before the August recess but in any event in September."

So, if you have any suggestions you wish to have considered, I hope that you will give them to the staff so the staffs can try to at least get us a side-by-side version of the various views of Members on the specific issues that have been developed. We’ve had already several portions of the industry itself give us their checklists of various items they wish us to consider. We wish that that review will be an in depth review."

6/21. The U.S. Court of Appeals (DCCir) issued its opinion [19 pages in PDF] in Northpoint v. FCC, setting aside part of the Federal Communications Commission's (FCC) DBS Auction Order.

Northpoint Technology's subsidiary, Compass Systems, applied to the FCC for licenses to provide digital broadcast satellite (DBS) service from unassigned channels at two of the eight orbital positions 157⁰ and 166⁰ west longitude -- assigned to the U.S. by the International Telecommunications Union (ITU) for the Planning in Region 2 of the Broadcasting Satellite Service in the Frequency Band 12.2-12.7 GHz and Associated Feeder Links in the Frequency Band 17.3-17.8 GHz. The opinion refers to this as the ITU Region 2 Band Plan.

The FCC's International Bureau (IB) and Wireless Telecommunications Bureau (WTB) dismissed the application on the grounds that competitive bidding rules govern the awarding of the DBS service licenses, and that the application would be accepted only during an established filing window. However, the FCC also issued a public notice announcing the auction of DBS service licenses, and requesting comments.

The key statutory provision at issue is Section 647 of the ORBIT Act. It provides that "Notwithstanding any other provision of law, the Commission shall not have the authority to assign by competitive bidding orbital locations or spectrum used for the provision of international or global satellite communications services. The President shall oppose in the International Telecommunication Union and in other bilateral and multilateral fora any assignment by competitive bidding of orbital locations or spectrum used for the provision of such services."

This is Section 647 of S 376 (106th Congress), titled the "Open-market Reorganization for the Betterment of International Telecommunications Act". It became Public Law No. 106-180. It is codified at 47 U.S.C. § 765f.

The FCC reasoned that the DBS service licenses at issue are not "for the provision of international or global satellite communications services" within the meaning of the statute. And the FCC proceeding to auction the licenses for which Compass had applied. See, DBS Auction Order, 19 FCC Rcd at 823.

Northpoint did not participate in the auction. Instead it filed a petition for review, and an appeal, with the U.S. Court of Appeals.

The Court applied Chevron deference.

It reasoned that "To the extent that Northpoint couches its arguments in Chevron step one terms -- i.e., that section 647 of the ORBIT Act unambiguously prohibits the auctioning of licenses to operate DBS service channels -- it misses the mark. ... Section 647’s ambiguity is plain and profound ... The section provides that “the Commission shall not have the authority to assign by competitive bidding orbital locations or spectrum used for the provision of international or global satellite communications services.” ... Orbital locations or spectrum not yet assigned by the Commission, however, are plainly not “used for” any type of service, including international or global satellite communications services. ... Accordingly, because the statute, if read literally, would limit the Commission’s auction authority based on non-existent conditions, it is ambiguous and requires interpretation." (Emphasis in original.)

It continued that "Under Chevron step two, the Commission’s interpretation of section 647 at first blush appears plausible. The Commission interpreted “the language of the statutory prohibition to focus on whether the particular spectrum being ‘assigned’ is ‘used for’ international or global satellite communications services.” DBS Auction Order, ... This makes sense as section 647 prohibits only the auctioning of spectrum that is “used for” international or global satellite communications service, see 47 U.S.C. § 765f; it does not expressly prevent the auctioning of spectrum that is “used for” domestic satellite communications services simply because that spectrum is also “used for” for international or global satellite communications services." (Emphasis in original.)

However, the Court continued that it would not defer to this construction of Section 647, for several reasons.

First, the FCC's "reliance on the ITU Region 2 Band Plan as a basis for treating DBS service as a solely domestic satellite communications service is dubious in light of the policy it announced in DISCO I."

Second, "despite the Commission’s attempt to convert the Plan into a substantive bar to international DBS service (or BSS), it conceded at oral argument that there is no international treaty or other agreement (including the Plan) that prohibits a licensee from providing international DBS service from the orbital locations assigned to the United States." (Parentheses in original.)

Third, the FCC "has failed to adequately distinguish between NGSO FSS, which it treats as an international service, and DBS, which it treats as a “predominantly” domestic service."

The Court therefore concluded that "While section 647 of the ORBIT ACT unambiguously forbids only the auctioning of orbital locations or spectrum used for “international or global satellite communications services,” not domestic satellite communications services, the Commission’s construction of the statute to exclude DBS from the auction prohibition cannot withstand scrutiny at this point. Insofar as its construction is bottomed on a supposed substantive barrier imposed by the ITU Region 2 Band Plan, it is not reasonable. Since DISCO I the Commission has treated the Plan as a nonsubstantive barrier to international DBS service. Indeed, the Commission freely admits that it knows of no agreement or treaty prohibiting the provision of international DBS service by an FCC licensee."

The Court added that "A statutory interpretation premised in part on either a non-existent factor or one that results from an unexplained departure from prior Commission policy and practice is not a reasonable one. Equally unreasonable is the Commission’s use of an unidentified, but apparently crucial, difference between NGSO FFS service and DBS service to support its interpretation. There may be a key difference between the two but all the Commission has shown us are similarities. Chevron, however, does not allow for guesswork. Therefore, while the Commission’s construction of section 647 of the ORBIT Act may not be prohibited by the statutory text (and may even represent a wise policy choice), it is an unreasonable construction on this record and the auction premised on it is unauthorized." (Parentheses in original.)

Hence, the Court granted the petition for review, vacated the relevant portion of the DBS Order, and remanded to the FCC. The Court dismissed the appeal.

This case is Northpoint Technology Ltd. and Compass Systems, Inc., U.S. Court of Appeals for the District of Columbia, App. Ct. Nos. 04-1052 and No. 04-1053, an appeal of, and petition for review of, a final order of the Federal Communications Commission. Judge Karen Henderson wrote the opinion of the Court, in which Judges Edwards and Randolph joined.

6/23. The Supreme Court released six opinions, none of which are technology related. See, Mayle v. Felix (No. 04-563), Halbert v. Michigan (03-10198), Orff v. United States (03-1566), Exxon Mobil Corp. v. Allapattah Services, Inc. (04-70), Gonzalez v. Crosby (04-6432), and Kelo v. New London (04-108). The Supreme Court did not issue opinions on June 23 in MGM v. Grokster (regarding copyright and P2P systems), and NCTA v. Brand X (regarding regulation of broadband internet services). The Supreme Court did not release an order list on June 23.

6/23. The Internal Revenue Service (IRS) published a notice in the Federal Register that corrects its earlier notice in the Federal Register that provides guidance for the filing of information returns by donees relating to qualified intellectual property contributions. See, notice in Federal Register, June 23, 2005, Vol. 70, No. 120, at Page 36346, and notice in the Federal Register, May 23, 2005, Vol. 70, No. 98, at Pages 29450 - 29452.

6/22. The House Homeland Security Committee's Subcommittee on Economic Security, Infrastructure Protection, and Cybersecurity held a hearing titled "Ensuring the Security of America's Borders through the Use of Biometric Passports and Other Identity Documents". See, prepared testimony [20 pages in PDF] of the Government Accountability Office (GAO) titled "Information Security: Key Considerations Related to Federal Implementation of Radio Frequency Identification Technology", prepared testimony [3 pages in PDF] of Elaine Dezenski (DHS), prepared testimony [6 pages in PDF] of Frank Moss (Department of State), prepared testimony [5 pages in PDF] of Martin Herman (NIST), and prepared testimony [9 pages in PDF] of Stewart Verdery (Mehlman Vogel).

6/22. Kyle McSlarrow, P/CEO of the National Cable & Telecommunications Association (NCTA), gave a speech to the Media Institute in Washington DC titled "Cable Freedom". He said that the "Congress is appropriately taking a fresh look at the framework established by the 1996 Telecommunications Act." As for the 1996 Act, he said that "the framework in place today has either fostered -- or at least not prevented -- the spectacular growth of the Internet, the wireless industry, and more competition in services and applications in voice, video and data, than anyone could have imagined in 1996." He argued that in writing new legislation, "We should not look to our political institutions to intervene in what are properly marketplace negotiations. We should reduce economic regulation wherever possible. We should ensure that certain universally recognized social responsibilities and objectives are borne by all providers of the same communications services."

6/21. The American Civil Liberties Union (ACLU) released a report titled "Science Under Siege". It asserts that the Bush administration has adopted policies that restrain academic freedom and scientific inquiry in the pursuit of national security. See also, ACLU release.

6/14. The U.S. Court of Appeals (DCCir) issued its opinion [9 pages in PDF] in Minnesota Christian Broadcasters v. FCC, affirming the decision of the Federal Communications Commission (FCC) not to award a bidding credit that is available to new entrants, in an FCC auction for a construction permit for a new FM radio station.

6/23. President Bush nominated Steven Bradbury to be an Assistant Attorney General (AAG) in charge of the Office of Legal Counsel (OLC). He is currently the acting AAG in the OLC. He replaced Jack Goldsmith. He previously worked in the Washington DC office of the law firm of Kirkland & Ellis. And, he clerked for Supreme Court Justice Clarence Thomas and for former U.S. Court of Appeals (DCCir) Judge James Buckley. See White House release and release.

6/22. Thomas Barnett was named acting Assistant Attorney General of the Antitrust Division. He replaces Hewitt Pate. Barnett has been the Deputy Assistant Attorney General for civil enforcement at the Antitrust Division since March 31, 2004. He was previously a partner in the law firm of Covington & Burling, and vice-chair of the firm's Antitrust and Consumer Protection practice group. See, DOJ release.

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

9:30 AM. The Senate will of begin consideration of HR 2361, the Interior appropriations bill.

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 Rudolfo Baca (Precursor Group),Paul Glenchur (Stanford Washington Research Group), 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.

2:00 PM. The House Armed Services Committee will hold a hearing titled "Small Business Technologies". Some of the witnesses will address electronics and information technologies. Location: Room 2118, Rayburn Building.

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.

9:30 AM. The Senate Judiciary Committee (SJC) may hold an executive business meeting. The SJC frequently cancels meetings without notice. See, notice. 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's Subcommittee on Technology, Innovation, and Competitiveness will hold a hearing on health information technology. The witnesses will be David Brailer (Department of Health and Human Services), Carolyn Clancy (DHHS), Hratch Semerjian (National Institute of Standards and Technology), Jonathan Perlin (Department of Veterans Affairs), Susan Bostrom (Cisco Systems), John Glaser (Partners HealthCare System), Peter Basch (MedStar Health), Pamela Pure (McKesson Corporation), and Karen Ignagni (America’s Health Insurance Plans). See, notice. The hearing will be webcast. 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.

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

Effective date of the final rule of the Department of the Treasury's (DOT) Office of the Comptroller of the Currency (OCC), the DOT's Office of Thrift Supervision (OTS), the Federal Reserve System, and the Federal Deposit Insurance Corporation (FDIC) implementing § 216 of the Fair and Accurate Credit Transactions Act of 2003, which is also known as the FACT Act. The FACT Act was HR 2622 in the 108th Congress. It is now Public Law No. No. 108-159. § 216 of the FACT Act adds a new § 628 to the Fair Credit Reporting Act (FCRA) that pertains to protecting consumers against the risks associated with unauthorized access to information about the consumer contained in a consumer report, such as fraud and related crimes, including identity theft. The FCRA is codified at 15 U.S.C. § 1681 et seq. The new section is codified at 15 U.S.C. § 1681w. See, notice in the Federal Register, December 28, 2004,  Vol. 69, No. 248, at Pages 77610 - 77621. See also, story titled "Financial Regulators Publish Notice of Final Rule Implementing Section 216 of FACT Act" in TLJ Daily E-Mail Alert No. 1046, December 29, 2004.

Deadline to submit comments to the Antitrust Modernization Commission (AMC) in response to the AMC's request for public comments regarding the Robinson-Patman Act. See, notice in the Federal Register: May 19, 2005, Vol. 70, No. 96, at Pages 28902 - 28907.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its public notice regarding refreshing the record on issues raised in the Further Notice of Proposed Rulemaking (FNPRM) related to carrier identification code (CIC) conservation and the definition of "entity" as found in section 1.3 of the CIC Assignment Guidelines. This public notice is DA 05-1154 in CC Docket No. 92-237; it was released on April 26, 2005. See, notice in the Federal Register, June 1, 2005, Vol. 70, No. 104, at Pages 31405 - 31406.

Deadline for states and telecommunications relay services (TRS) providers to file with the Federal Communications Commission (FCC) their annual consumer complaint log summaries. See, FCC notice.