8/5. The Federal Communications Commission (FCC) adopted, but did not release, an item titled "Report and Order and Notice of Proposed Rulemaking" that classifies wireline broadband internet access services as information services. This brings these services, including DSL service, out from under the Title II regulatory regime. This determination was sought by the incumbent local exchange carriers (ILECs), such as Verizon and BellSouth, that provide DSL service.

Back in 2002 the FCC issued a declaratory ruling (DR) that cable modem service is an information service, and that there is no separate offering as a telecommunications service. On June 27, 2005, the Supreme Court issued its opinion [59 pages in PDF] in NCTA v. Brand X upholding this DR. The Court's analysis made clear that the Court would likewise uphold a classification of other wireline broadband services as information services. See, story titled "Supreme Court Rules in Brand X Case" in TLJ Daily E-Mail Alert No. 1,163, June 28, 2005.

FCC Chairman Kevin Martin wrote a statement. He stated that this actions places "all broadband internet access providers on a level playing field". Commissioner Kathleen Abernathy wrote in her statement that broadband technologies should "not be crushed by the weight of 1930s-era regulations".

Proponents of this determination, both in and outside of the FCC, have praised this as a reduction of regulatory burdens. However, there is another trend. As the FCC classifies services as Title I information services, not subject to Title II regulation, it is also assigning, piece by piece, under "ancillary" jurisdiction, regulatory burdens to Title I information services.

The FCC issued a short release that contains a superficial summary of the contents to this item. Some other details of the contents of this item are disclosed in the separate statement of FCC Commissioner Michael Copps, and in the separate statement of FCC Commissioner Jonathan Adelstein.

Tom Navin, Chief of the FCC's Wireline Competition Bureau (WCB), stated at a news conference on Friday, August 5, that this item will be released "hopefully later this month".

Summary of the Report and Order. The FCC release states that the FCC "determined that wireline broadband Internet access services are defined as information services functionally integrated with a telecommunications component. In the past, the Commission required facilities-based providers to offer that wireline broadband transmission component separately from their Internet service as a stand-alone service on a common-carrier basis, and thus classified that component as a telecommunications service. Today, the Commission eliminated this transmission component sharing requirement, created over the past three decades under very different technological and market conditions, finding it caused vendors to delay development and deployment of innovations to consumers."

The order also provides for a one year transition. The FCC release states that "the Order requires that facilities-based wireline broadband Internet access service providers continue to provide existing wireline broadband Internet access transmission offerings, on a grandfathered basis, to unaffiliated ISPs for one year."

The order also extends universal service taxation to facilities based service providers. The FCC release states that the "Order also requires facilities-based providers to contribute to existing universal service mechanisms based on their current levels of reported revenues for the DSL transmission for a 270-day period after the effective date of the Order or until the Commission adopts new contribution rules, whichever occurs earlier. If the Commission is unable to complete new contribution rules within the 270-day period, the Commission will take whatever action is necessary to preserve existing funding levels, including extending the 270-day period or expanding the contribution base."

The FCC release also states that "The Order also allows wireline providers the flexibility to offer the transmission component of the wireline broadband Internet access service to affiliated or unaffiliated ISPs on a common-carrier basis, a non-common carrier basis, or some combination of both. Some rural incumbent local exchange carriers, or LECs, have indicated their members may choose to offer broadband Internet access transmission on a common carrier basis."

Commissioner Copps wrote a statement, which he read at the FCC's event on August 5, that enumerates other items that may be in the order. These other requirements include "access to facilities", "interconnection", and "accessible technologies" for persons with disabilities.

He states that "We ensure access to facilities and interconnection so that small and medium businesses can continue to enjoy the lower prices and increased choices that competition brings."

Commissioner Adelstein also enumerates requirements that are not mentioned in the FCC release. For exammple, he elaborates on disabilities access. He wrote that "I am also pleased that changes were made to this Order that affirm our authority under Title I to ensure access for those with disabilities. Through sections 225 and 255 of the Act, Congress codified important principles that have ensured access to functionally-equivalent services for persons with disabilities."

Abernathy elaborated in her statement that "We also lift the so-called “Computer Inquiry” requirements, which were crafted to prevent companies that exercised substantial market power in the provision of telecommunications from leveraging that dominance into the provision of enhanced services. Requirements such as these were never meant to apply in a competitive, multi-platform communications market such as the market for high-speed Internet access services."

Summary of the NPRM. The FCC's release states only that this item also includes an NPRM, and that FCC "seeks comment on whether it should develop a framework for consumer protection in the broadband age -- a framework that ensures that consumer protection needs are met by all providers of broadband Internet access service, regardless of the underlying technology."

Commissioner Adelstein elaborates on some of the content of the NPRM. He stated that it addresses privacy, truth in billing, rate averaging, and rate regulation. He wrote that "I'm also glad that we’ve added an important Notice of Proposed Rulemaking that seeks comment on how we can ensure that we continue to meet our consumer protection obligations in the Act. On some issues, like consumer privacy, it would have been far wiser to act now. I’m troubled by the prospect that we might even temporarily roll back consumer privacy obligations in this Order, particularly during this age in which consumers’ personal data is under greater attack than ever. The Commission must move immediately to address these privacy obligations. We should also act quickly to assess the effect on our Truth-in-Billing rules and the rate averaging requirements of the Act, which ensure that charges for consumers in rural areas are not higher than those for consumers in urban areas. This Notice sets the foundation for our consumer protection efforts across all broadband technology platforms and I look forward to working with my colleagues as we move forward promptly to address these issues."

FCC Proceedings. This item is FCC 05-150. Commissioner Copps' statement references the proceedings as CC Docket Nos. 02-33, 01-337, 95-20, 98-10, and WC Docket No. 04-242.

No. 04-242 is the FCC's proceeding on Verizon's June 28, 2004 petition for a declaratory ruling that broadband internet access service via fiber to the premises (FTTP) is an information service.

No. 01-337 is the FCC's dominant non-dominant NPRM. No. 02-33 is the FCC wireline broadband NRPM. See also, story titled "So, Just What Are All of These FCC Broadband Proceedings About Anyway?" in TLJ Daily E-Mail Alert No. 567, December 13, 2002.

Nos. 95-20 and 98-10 are ancient proceedings. No. 95-20 is the FCC's long running further remand proceeding regarding Computer III and Bell Operating Companies' (BOC) provision of enhanced services. No. 98-10 is a companion proceeding regarding the same subject.

8/5. The Federal Communications Commission (FCC) adopted, but did not release, an item titled "Policy Statement". It relates to guaranteeing for consumers the freedom to use their internet connections to access any content, use any applications, and attach any devices, that they choose. It also relates to limitations upon these freedoms, imposed by their service providers, or by the government. Finally, it contains language regarding competition in a variety of industry sectors, and hints at the possibility of a broadening of FCC exercise of antitrust authority.

This item is merely a policy statement, without enforceable rules. It may also have been approved as a concession to its primary backer, Commissioner Michael Copps, in return for his support for other items adopted on August 5. If this is the case, there may be little enthusiasm for actually implementing its contents.

Finally, the FCC has not released the actual text of the policy statement. The FCC issued only a half page release [PDF]. The following is the entire substantive language of this release.

"The Federal Communications Commission today adopted a policy statement that outlines four principles to encourage broadband deployment and preserve and promote the open and interconnected nature of public Internet: (1) consumers are entitled to access the lawful Internet content of their choice; (2) consumers are entitled to run applications and services of their choice, subject to the needs of law enforcement; (3) consumers are entitled to connect their choice of legal devices that do not harm the network; and (4) consumers are entitled to competition among network providers, application and service providers, and content providers. Although the Commission did not adopt rules in this regard, it will incorporate these principles into its ongoing policymaking activities. All of these principles are subject to reasonable network management."

This item was being negotiated by Commissioners and staff until late into the night of Thursday, August 4, along with many other matters. It is possible that the Commissioners have not yet fully thought through all of the components of this policy statement, or even the language of the release.

The FCC's release states that this item is numbered FCC 05-151. The FCC release does not, however, state a proceeding title or proceeding number with which this policy statement is associated.

What is a Policy Statement? The adoption of this item raises the question of just what is a policy statement, and what are the legal consequences of an FCC policy statement. Neither the Communications Act nor the Administrative Procedure Act contemplate regulation by policy statement.

Nevertheless, the FCC has a history of adopting policy statements. For example, on November 10, 2000, the FCC adopted a policy statement regarding taking steps towards allowing secondary markets in spectrum rights, and otherwise bringing more clarity and use flexibility to spectrum rights. In the following five years, the FCC has conducted many rule making proceedings that implement this policy statement. That is, the 2000 policy statement did not adopt any rules, but it set in motion a number of rulemaking proceeding that have resulted in implementing rules. See, TLJ story titled "FCC Discusses Secondary Markets for Wireless Spectrum", November 10, 2000.

The FCC also has a history of using policy statements as guidelines for regulated entities regarding how it will apply existing rules in future enforcement proceedings, for example, regarding indecency and advertising of dial-around services. However, the just adopted policy statement is not in the nature of guidelines for the interpretation of existing rules.

FCC Chairman Kevin Martin explained in his separate statement [PDF] on this item that "While policy statements do not establish rules nor are they enforceable documents, today's statement does reflect core beliefs that each member of this Commission holds regarding how broadband internet access should function."

Tom Navin, Chief of the Wireline Competition Bureau (WCB), also responded to questions at a news conference on August 5. He stated that the policy statement is "principles", and that "they are not enforceable".

Michael Copps wrote in his statement [PDF] that these are "principles that will guide our effort". He added that he "would have preferred a rule that we could use to bring enforcement action". He also said that "with violations of our policy, I will take the next step and push for Commission action".

Purpose of the Policy Statement. The policy statement itself states that its purpose is to "encourage broadband deployment and preserve and promote the open and interconnected nature of public Internet".

Commissioner Copps elaborated that it "will protect network neutrality so that the Internet remains a vibrant, open place where new technologies, business innovation and competition can flourish. We need a watchful eye to ensure that network providers do not become gatekeepers, with the ability to dictate who can use the Internet and for what purpose. Consumers do not want to be told that they cannot use their DSL line for VoIP, for streaming video, to access a particular news website, or to play on a particular company’s game machine."

Copps is the Commissioner who has been the strongest proponent of a network neutrality rule. See for example, March 26, 2004 speech by Copps, and story titled "FCC Commissioner Copps Addresses Broadband Network Neutrality" in TLJ Daily E-Mail Alert No. 868, April 2, 2004.

Chairman Martin wrote in his statement that "cable and telephone companies have delivered", without regulatory mandates, "broadband internet access service to access any content on the internet". He continued that their "practices already track well the internet principles we endorse today".

Martin explained that in a "competitive marketplace, providers must do so". And, he said that "I also am confident, therefore, that regulation is not, nor will be, required". Yet, he supported the adoption of this policy statement.

He offered no rationale for supporting this policy statement. Perhaps he supported this item as part of a larger bargain among the four Commissioners to win unanimous support on the Commission for numerous items.

Reaction to the Policy Statement. Ed Black P/CEO of the Computer and Communications Industry Association (CCIA), stated in a release that "This policy statement supports principles of network neutrality crucial to a vibrant Internet, and should be the foundation upon which broadband policy is made".

Michael Petricone of the Consumer Electronics Association (CEA) stated in a release that "we commend the Commission's endorsement of principles ensuring that Americans retain their freedom to access content, use applications and connect devices of their choice to high-speed Internet networks. Adherence to these principles is vital to ensure the development of new innovative consumer electronic devices that depend on unrestricted connection to broadband networks."

Jeff Pulver, a VOIP innovator, wrote in his web site that that "On the bright side, the FCC also adopted earlier today a ``Policy Statement´´ on something akin to ``Net Freedom.´´ This Policy Statement apparently only saw the light of day because of the tireless efforts of Comm'r Copps. So, thank you Commissioner Copps for trying to protect Internet users."

Pulver continued that "I wish the FCC could have gone further than the Policy Statement and adopted explicit, bona fide, enforceable rules for user empowerment. For now, we, as the drivers of IP-based communications Internet innovation, will have to be ever-vigilant to monitor potential abuses of user empowerment. If the FCC revisits the issue a year from now (as Comm'r Copps has called upon the Commission to do), we should be prepared to present the FCC with a sufficient evidentiary record to convince the FCC to enforce user empowerment and to impose any rules that have been proven to be necessary. In any event, Policy Statement aside, nothing is settled and, if Internet users want control over the Internet experience, then Congress probably has to act to protect the Internet and its users." See, transcript.

Mike Godwin of the Public Knowledge, a Washington DC based interest group, stated in a release that "We respect the leadership of Commissioner Copps and others in attempting to promote the principle of open networks in the Commission's policy statement today, but we also believe consumers and the market would have benefited if the FCC had included an openness requirement in the order itself".

Comparison to Powell's Network Freedoms. The content of the policy statement is not a new concept. Numerous proposals have been advanced in filings with the FCC. Commissioners have also spoken on this subject in the past. See for example, comment [17 pages in PDF] submitted by law professors Lawrence Lessig (Stanford) and Timothy Wu (University of Virginia) on August 22, 2003, urging that the FCC adopt a network neutrality rule.

Most notably, former Chairman Michael Powell advocated a concept that he identified as "network freedoms".

On February 8, 2004 Powell gave a speech [PDF] titled "Preserving Internet Freedom: Guiding Principles for the Industry" at the Silicon Flatirons Symposium at the University of Colorado School of Law in Boulder, Colorado. See, story titled "Powell Opposes Regulations to Impose Broadband Network Neutrality" in TLJ Daily E-Mail Alert No. 833, February 10, 2004.

Powell argued in that speech for a concept that he called "Net Freedom" -- the concept that consumers should be able to use their broadband connections to "use the content, applications and devices they want", without restrictions imposed by their broadband service providers. He also argued that at this time "the case for government imposed regulations regarding the use or provision of broadband content, applications and devices is unconvincing and speculative".

On October 19, 2004 Powell gave a speech [5 pages in PDF] at the Voice on the Net Conference in Boston, Massachusetts in which he enumerated four internet freedoms. See, story titled "Powell Discusses VOIP Regulation" in TLJ Daily E-Mail Alert No. 1,000, October 20, 2004.

Powell stated that these four freedoms are: "(1) Freedom to Access Content: Consumers should have access to their choice of legal content; (2) Freedom to Use Applications: Consumers should be able to run applications of their choice; (3) Freedom to Attach Personal Devices: Consumers should be permitted to attach any devices they choose to the connection in their homes; and (4) Freedom to Obtain Service Plan Information: Consumers should receive meaningful information regarding their service plans."

The present policy statement tracks Powell's network freedoms, to a degree. First, both list four items. Also, three of the FCC's items are identical to, or similar to, three of Powell's network freedoms. Moreover, they are enumerated in the same order.

Nevertheless, there are some substantial differences between network freedoms as conceived by Powell, and the policy statement just adopted by the FCC.

In comparing the just adopted policy statement to Powell's four freedoms, the first item, freedom to access any content, the two are basically the same.

On the second item, freedom to use applications, the two start out the same. But, the policy statement adds a phrase -- "subject to the needs of law enforcement".

On the third item, freedom to attach devices, the two start out the same. But the policy statement adds a phrase -- "devices that do not harm the network".

On the fourth item, Powell proposes that "Consumers should receive meaningful information regarding their service plans", while the policy statement provides that "consumers are entitled to competition among network providers, application and service providers, and content providers".

Commentary. These differences are substantial. The concept espoused by Powell, and that underlies the FCC's policy statement, is that there should be limitations upon what broadband service providers can do in their relationship with their customers. In this contractual relationship, the customers are consumers. And, while the legal concept of the term freedom is normally used in the context of the relationship between a government and its citizens, and connotes a limitation upon governmental power, it is also sometimes applied to the relationship between a business and the consumers of its products or services. Hence, it is appropriate, and linguistically accurate, to speak of the network freedoms of consumers.

However, the FCC policy statement also includes new items that lie outside of the concept of network freedoms for consumers. The FCC's release describing the policy statement also suggests limitations upon the rights of individuals, and the concurrent expansion of government authority. This is not appropriately described as consumer freedom or consumer choice.

First, the FCC release uses the phrase "subject to the needs of law enforcement". These "needs" will be asserted, not by broadband internet access providers, but by law enforcement agencies, such as the FBI. Hence, this phrase pertains to the relationship between individuals and the government. In this relationship, individuals are not consumers. Moreover, this phrase implies government imposed limitations upon the activities of citizens, which is the very essence of a diminution of freedom. Hence, this phrase has nothing to do with consumers, and implies the opposite of freedom, and the opposite of choice.

To be sure, some comments filed with the FCC have proposed that the right to use applications and services may be constrained by the service providers' compliance with legal duties imposed by statutes, and so forth. See, for example, the above referenced comment of Lessig and Wu. But such legal duties, effected by the service provider, are different from, and more limited than, the broad concept of the "needs of law enforcement".

This analysis is not merely semantic and hypothetical. Consider, for example, that the FBI has been strenuously lobbying the FCC in recent years for an expansion of the CALEA regulatory regime to include all sorts of internet based information services, even though the CALEA statute plainly states that it applies to telecommunications carriers, and exempts information services. As the FCC's item of August 5 regarding CALEA demonstrates, the FBI has succeeded in its lobbying efforts. The FCC has just determined that notwithstanding the statute, broadband internet access providers and interconnected VOIP service providers are subject to CALEA based regulation.

However, this still leaves a gap in the FBI's regulatory goals. The CALEA still only applies to carriers, albeit very broadly conceived. There is still the matter of the FBI's attempts to deal with individuals in the U.S. who run software or attach devices, perhaps acquired from businesses in other countries beyond the reach of the FBI and FCC.

The language in the FCC's policy statement regarding "subject to the needs of law enforcement" and "devices that do not harm the network", could be construed as laying the groundwork for the FCC and FBI to limit the freedom of individuals to use the internet, where the FBI asserts that such use could affect its "needs" to intercept and access the data of individuals.

If the FCC were to implement the policy statement in this manner, then this policy statement could be in the nature of the Trojan horse of Greek mythology, appearing on the outside as a gift of consumer freedom, but bearing concealed in its inside government limitations on the free use of the internet by individuals.

And then, there is the matter of the policy statement's language regarding "competition among network providers, application and service providers, and content providers". Again, the notion of the network freedoms of consumers pertains to restrictions upon broadband service providers' ability to limit the activities of their customers. But, the above quoted language pertains to market competition analysis, not network freedom.

Moreover, this phrase suggests FCC assumption of authority to apply competition, or antitrust, law principles to competition in several industry sectors, "network providers, application and service providers, and content providers". The is novel, and if actually implemented, would constitute an expansion of FCC authority.

To start with, the FCC holds a very limited antitrust authority under the Communications Act of 1934, as amended. It does not exercise this authority. It does exercise, without statutory authority, antitrust merger review authority. However, it only does this in the context of mergers of companies that hold significant FCC licenses. It acquired this by fait accompli. The FCC has not asserted general antitrust power with respect to non-merger conduct. Nor has the FCC asserted antitrust power over companies that do not hold significant FCC licenses. Yet, the FCC's description of its policy statement suggests exercising competition law authority, absent mergers, and over content companies and application providers, many of which do not hold any FCC licenses.

In conclusion, while this policy statement may be understood by many to be about guaranteeing network freedom for consumers, and preserving consumer choice, it many be implemented by the FCC in a manner that guarantees some network freedoms, but diminishes others. Moreover, it may portend an FCC interest in expanding its competition law authority.

On the other hand, the FCC Commissioners may not have this understanding. Or, the policy statement may only represent the views of a minority of the Commissioners, and was agreed to as part of a package of compromises.

8/5. The incumbent local exchange carriers (ILECs) that provide DSL service are pleased with the FCC's "Report and Order and Notice of Proposed Rulemaking", announced on August 5, regarding the classification of wireline broadband internet access services as information services.

Walter McCormick, P/CEO of U.S. Telecom Association (USTA), which represents ILECs, stated in a release that “The Commission’s vote today is the right move to bring consumers more choice for high-speed Internet service, speed broadband deployment and spur investment. After waiting several years for the courts to act, we appreciate Chairman Martin’s efforts to bring the rules for DSL service in line quickly with the rules for cable modem service.

He continued that "In crafting these new rules, the Commission weighed many important issues that affect all aspects of the communications business. We applaud the Commission for taking a flexible approach to establish workable rules for all providers. In addition, ensuring a sustainable universal service system is a high priority for USTelecom members and we will work closely with the Commission over the next several months to successfully achieve this critical objective."

Susanne Guyer, SVP for Federal Regulatory Affairs for Verizon, an ILEC, stated in a release that "This is an important step toward a national broadband policy that allows consumers to enjoy the full benefits of competition. At last, regulations are catching up to where consumers and technology have been for some time. This decision will help accelerate deployment of broadband networks, enabling greater choice and increased access for consumers. We commend Chairman Martin and the commission for acting quickly to move us closer to the president’s goal of broadband deployment to all Americans by 2007."

Similarly, Herschel Abbott, BellSouth's VP for Governmental Affairs, stated in a release that "Chairman Martin should be widely applauded for pushing to completion these sweeping changes that will allow BellSouth to move higher-speed products and services from the lab to the hands of American consumers in the very near future. The chairman's leadership has led to an order that is comprehensive and will result in greater innovation that will benefit every broadband consumer. It must be noted that this consensus was developed with commendable speed, a speed that is appropriate and necessary given the importance of rapid technology changes in today's marketplace."

Abbott added that "The transition periods that have been agreed to are workable. We look forward to reviewing the words of the final order and implementing the order quickly, so that consumers will be served by exciting new offerings in the very near future, including new and more efficient services to our wholesale customers."

The FCC had previously classifed cable modem service as an information service, and the Supreme Court upheld this classification in the Brand X case. Kyle McSlarrow, P/CEO of the National Cable and Telecommunications Association (NCTA), wrote in a release that "We applaud Chairman Martin for making broadband deployment a national priority, and support today's FCC decision to promote deregulatory policies that treat like services alike."

He also took this opportunity to advocate regulatory parity in video services. "We invite the telephone companies to take a similar approach to regulation of video services and drop their self-serving demands for special treatment by the government when entering the video marketplace. A competitive marketplace with a level regulatory playing field for all services, regardless of technology, is one that all industries should be prepared to compete in."

Earl Comstock, P/CEO of CompTel, stated in a release that "CompTel remains concerned that the regulatory classification decisions in this order will ultimately frustrate the Commission's stated goals and result in less innovation, higher prices, and fewer jobs for Americans".

Comstock is also an attorney with the law firm of Sher and Blackwell, in which capacity he represents Earthlink. He previously worked for Sen. Ted Stevens (R-AK), the Chairman of the Senate Commerce Committee.

He also wrote that "According to the FCC, today's action has no impact on CompTel's carrier members. CompTel appreciates in particular that the final order will include measures to ensure continued competitive access to facilities and provides a transition period for ISP access and USF funding. The Chairman and his Democratic colleagues worked hard to address issues of concern to CompTel members."

Michael Petricone of the Consumer Electronics Association (CEA) stated in a release that "We applaud today's action by the FCC creating regulatory parity among all broadband service providers."

Ed Black P/CEO of the Computer and Communications Industry Association (CCIA), stated in a release that "Today’s ruling should spur increased broadband penetration throughout the United States ... We are hopeful the FCC has set the stage for robust competition. In any case, we will watch how this ruling evolves."

Andrew Jay Schwartzman, P/CEO of the Media Access Project (MAP), a Washington DC based interest group, stated in a the MAP web site that "This is bad news for the people who use the internet. It means higher prices, less competition and disincentives for those entrepreneurs who have used the internet as a platform for innovation and economic growth. Even so, it could have been worse. By asserting its authority to stop the most flagrant kinds of abuse, the FCC has made it somewhat harder to block or impede access to information."

Michael Gallagher, head of the National Telecommunications and Information Administration (NTIA), released a statement. "Today's FCC action demonstrates Chairman Martin's leadership and represents an important step towards realizing the President's goal of universal, affordable access to broadband for all Americans by creating a level playing field for providers of broadband access and by removing regulatory obstacles to further investment in broadband infrastructure. I congratulate Chairman Martin and his fellow Commissioners for their foresight and their willingness to work in a bipartisan fashion."

8/5. The Federal Communications Commission (FCC) adopted, but did not release, an Order on Reconsideration that amends the FCC's band plan, and licensing and service rules, for Advanced Wireless Service (AWS) spectrum in the 1710-1755 MHz and 2110-2155 MHz bands. This pertains to spectrum reallocated for use by third generation (3G) wireless services, which are intended to bring broadband internet access to portable and fixed devices.

The FCC adopted its original service rules on October 16, 2003. See, story titled "FCC Announces Services Rules for 3G Spectrum" in TLJ Daily E-Mail Alert No. 761, October 20, 2003. The just announced items makes changes to these rules.

The FCC issued only a press release describing these changes. It states that "The original band plan for this spectrum adopted by the FCC in October 2003 included a mixture of license sizes and geographic areas in order to accommodate the needs of wireless providers of various sizes serving a range of different geographic areas. Today’s Order maintains such a mixture but increases the amount of spectrum licensed on a small geographic area basis (Cellular Market Areas, or CMAs) from 10 MHz to 20 MHz in order to provide greater opportunities for smaller rural or regional providers to obtain access to this spectrum at auction. The Order also provides for an additional 10 MHz of spectrum licensed by Economic Areas (EAs)." (Parentheses in original.)

The FCC's release also states that "The new band plan splits the original 30 MHz E block at 1740-1755 MHz and 2140-2155 MHz into one 10 MHz block (new block E) and one 20 MHz block (new block F), in order to facilitate access to the spectrum by a wider array of new and existing wireless carriers seeking to deploy advanced services, improve service quality, augment existing networks, or expand coverage areas. Today’s Order also restructures the band plan by aligning the CMA, EA, and REAG spectrum blocks in order to enable operators to aggregate similarly-licensed spectrum more easily. For more information, please see the attached diagram depicting the old and new band plans for the 1710-1755 MHz and 2120-2155 MHz spectrum."

The FCC release also states that the order "affirmed its 2003 decision not to set aside a portion of the 1710-1755 MHz and 2110-2155 MHz bands exclusively for small businesses that meet certain eligibility criteria and its 2003 decision to provide two levels of bidding credits to small businesses that are winning bidders for licenses in those bands."

Finally, the FCC release states that "The Commission declined a request to add a third level of bidding credits and two proposals that would have amended its rules pertaining to eligibility for designated entity (“DE”) status and DE benefits such as bidding credits. The Commission also declined a third proposal to amend the DE rules in this proceeding, but stated that it would examine this issue further in a separate action."

FCC Commissioner Michael Copps wrote in a separate statement that "The Order also announces that the Commission will initiate a NPRM on the question of whether we should close a potentially troubling loophole in the designated entity program. The DE program is designed to create opportunities for smaller carriers to obtain the spectrum resources needed to bring new services to consumers. The program is often particularly useful in rural areas."

He added that "Our largest auction in many years is going to be held in June. We need to put this NPRM out immediately, compile the record, and develop whatever action plan may be necessary if it is determined that new protections are needed for the DE program -- well before the auction is held." (The FCC's release states that the auction will be held "as early as June 2006".)

FCC Commissioner Jonathan Adelstein wrote in a separate statement [PDF] that "it is unclear to me why the Commission allows large wireless companies to partner with DEs. This is even more important in the AWS auction where auction proceeds must be sufficient to cover government relocation costs."

"Do we want the nation's largest wireless carriers partnering with DEs to get a 25% discount so that auction revenues to the U.S. treasury could potentially be reduced by well over a billion dollars? How is the public interest served in that outcome?", asked Adelstein.

This item is FCC 05-149 in WT Docket No. 02-353.

8/5. Bruce Franca was named acting Chief of the Federal Communications Commission's (FCC) Office of Engineering and Technology (OET). He has been Deputy Chief of the OET since 1987. He has worked for the FCC since 1974. See, FCC release.

8/5. Leslie Marx was named Chief Economist at the Federal Communications Commission (FCC). She is a game theoretical economists at Duke University's business school. See, FCC release.

8/5. The Federal Communications Commission's (FCC) agenda for its event of Friday, August 5, 2005 had included consideration of a Notice of Inquiry (NOI) concerning the effects of anticompetitive conduct and circuit disruption by foreign carriers on U.S. international routes. On Friday, August 5, the FCC deleted this item from its agenda.

8/5. The Federal Communications Commission's (FCC) agenda for its event of Friday, August 5, 2005 had included consideration of a Notice of Inquiry (NOI) that requests comments to assist it in preparing its 12th annual report on the status of competition in the market for the delivery of video programming. On Friday, August 5, the FCC deleted this item from its agenda.

The House will not meet on Monday, August 1 through Monday, September 5. See, House calendar and Republican Whip Notice.

The Senate will not meet on Monday, August 1 through Monday, September 5. See, Senate calendar.

The Supreme Court is between terms. The opening conference of its October 2005 Term will be held on September 26, 2005.

Extended deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its notice of second further proposed rulemaking regarding horizontal and vertical cable ownership limits. The FCC adopted this Second Further NPRM on May 13, 2005, and released it on May 17, 2005. This item is FCC 05-96 in MM Docket No. 92-264. See, original notice in the Federal Register, June 8, 2005, Vol. 70, No. 109, at Pages 33679 - 33687. See also, notice of extension of deadlines, in the Federal Register, July 6, 2005, Vol. 70, No. 128, at Pages 38848 - 38849.

EXTENDED TO SEPTEMBER 7. Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to it notice of proposed rulemaking (NPRM) regarding low power FM rules. The FCC adopted its order and NPRM on March 16, 2005, and released it on March 17, 2005. It is FCC 05-75 in MM Docket No. 99-25. See, notice in the Federal Register, July 7, 2005, Vol. 70, No. 129, at Pages 39217 - 39227. See also, FCC notice [PDF] extending the deadlines.

2:00 - 4:00 PM. The Federal Communications Commission's (FCC) Informal Working Group 3: IMT-2000 and 2.5 GHz Sharing Issues will meet. See, FCC notice [PDF]. Location: FCC, 445 12th Street, SW, 6th Floor South Conference Room (6-B516).

6:00 - 9:15 PM. The DC Bar Association will host a the first part of a continuing legal education (CLE) seminar titled "Software Patent Primer: Acquisition, Exploitation, Enforcement and Defense". The speakers will be Stephen Parker (Novak Druce), Brian Rosenbloom (Rothwell Figg Ernst & Manbeck), David Temeles (Temeles & Temeles), and Martin Zoltick (Rothwell Figg). The price to attend ranges from $95-$170. For more information, call 202-626-3488. See, notice. Location: D.C. Bar Conference Center, 1250 H Street NW, B-1 Level.

3:05 PM. The Department of Homeland Security's (DHS) Homeland Security Advisory Council (HSAC) will meet by teleconference. The agenda includes receiving final report from the HSAC Private Sector Information Sharing Task Force. See, notice in the Federal Register, July 25, 2005, Vol. 70, No. 141, at Page 42583.

6:00 - 9:15 PM. The DC Bar Association will host a the second part of a continuing legal education (CLE) seminar titled "Software Patent Primer: Acquisition, Exploitation, Enforcement and Defense". The speakers will be Stephen Parker (Novak Druce), Brian Rosenbloom (Rothwell Figg Ernst & Manbeck), David Temeles (Temeles & Temeles), and Martin Zoltick (Rothwell Figg). The price to attend ranges from $95-$170. For more information, call 202-626-3488. See, notice. Location: D.C. Bar Conference Center, 1250 H Street NW, B-1 Level.

Deadline for every interconnected voice over internet protocol (VOIP) service provider to submit a report to the Federal Communications Commission (FCC) regarding the status of its obtaining from every one of its subscribers an acknowledgment of receipt of the FCC mandated statement regarding E911, and regarding the status of its distribution of the FCC mandated VOIP warning stickers. See, the order contained in the FCC's document titled "First Report and Order and Notice of Proposed Rulemaking" [90 pages in PDF], numbered FCC 05-116, adopted on May 19, 2005, and released on June 3, 2005. See also, the order contained in the FCC's document titled "Public Notice' [PDF], numbered DA 05-2085, and released on July 26, 2005. These orders were issued in FCC proceedings regarding extending elements of the regulatory regime for communications to internet protocol based services: "In the Matter of IP-Enabled Services", numbered WC Docket No. 04-36, and "E911 Requirements for IP-Enabled Service Providers", numbered WC Docket No. 05-196.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Further Notice of Proposed Rule Making (FNPRM) regarding advancing the date on which all new television receiving equipment must include the capability to receive over the air DTV broadcast signals from July 1, 2007, to a date no later than December 31, 2006. The FCC adopted and released this item on June 9, 2005. This item is FCC 05-121 in ET Docket No. 05-24. See, notice in the Federal Register, July 6, 2005, Vol. 70, No. 128, at Pages 38845 - 38848. See also, story titled "FCC Adopts Order and NPRM Regarding Its Digital Tuner Rules" in TLJ Daily E-Mail Alert No. 1,153, June 14, 2005.

Extended deadline to submit reply comments to the Federal Communications Commission (FCC) in its airborne cellular proceeding. The FCC adopted its notice of proposed rulemaking (NPRM) back on December 15, 2004. It is FCC 04-288 in WT Docket No. 04-435. See, story titled "FCC Announces NPRM on Cellphones in Airplanes" in TLJ Daily E-Mail Alert No. 1,039, December 16, 2004. The FCC extended the reply comment deadline by order numbered DA 05-1712, and dated June 23, 2005. See also, notice in the Federal Register, Volume 70, No. 133, at Pages 40276 - 40277.

Effective date of the Federal Communications Commission's (FCC) final rules implementing Section 207 of the Satellite Home Viewer Extension and Reauthorization Act of 2004. The FCC adopted its Report and Order on June 6, 2005, and released on June 7, 2005. It is FCC 05-119 in MB Docket No. 05-89. See, notice in the Federal Register, July 13, 2005, Vol. 70, No. 133, at Pages 40216 - 40225.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to the notice of proposed rulemaking (NPRM) portion of its order and NPRM regarding the extension of 911/E911 regulation to interconnected voice over internet protocol (VOIP) service providers. The FCC adopted, but did not release, this order and NPRM on May 19, 2005. The FCC released the text [90 pages in PDF] of this order and NPRM on June 3, 2005. See, story titled "FCC Releases VOIP E911 Order" in TLJ Daily E-Mail Alert No. 1,148, June 6, 2005, and story titled "FCC Sets Deadlines for Comments on VOIP NPRM" in TLJ Daily E-Mail Alert No. 1,167, July 5, 2005. See, FCC notice (DA 05-1905) [3 pages in PDF].

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Third Further Notice of Proposed Rule Making (NPRM), adopted on December 20, 2004, regarding whether to defer or eliminate the requirement in the rules that certain applications for equipment authorization received on or after January 1, 2005, specify 6.24 kHz capability. This item is FCC 04-292 in WT Docket No. 99-87 and RM-9332; See, notice in the Federal Register, June 15, 2005, Vol. 70, No. 114, at Pages 34726 - 34729.

Deadline to submit nominations of members to serve on the National Institute of Standards and Technology's (NIST) Advanced Technology Program Advisory Committee. See, notice in the Federal Register, July 29, 2005, Vol. 70, No. 145, at Page 43844.

Deadline to submit nominations of members to serve on the National Institute of Standards and Technology's (NIST) Visiting Committee on Advanced Technology. See, notice in the Federal Register, July 29, 2005, Vol. 70, No. 145, at Pages 43844-43845.

Deadline to submit nominations of members to serve on the National Institute of Standards and Technology's (NIST) Board of Overseers of the Malcolm Baldrige National Quality Award. See, notice in the Federal Register, July 29, 2005, Vol. 70, No. 145, at Pages 43845-43846.

Deadline to submit nominations of members to serve on the National Institute of Standards and Technology's (NIST) Judges Panel of the Malcolm Baldrige National Quality Award. See, notice in the Federal Register, July 29, 2005, Vol. 70, No. 145, at Pages 43846-43847.

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