10/12. The Federal Communications Commission (FCC) adopted, but did not release, a First Report and Order and Further Notice of Proposed Rule Making in its proceeding titled "Unlicensed Operation in the TV Broadcast Bands". Unused TV spectrum is also sometimes referred to as white space.

This item concludes that "fixed low power devices", but not portable devices, "can be allowed to operate" on certain unused TV channels.

Also, while the title of this proceeding refers to "unlicensed" use, and many people have long understood this to be a proceeding about making more spectrum available on an unlicensed basis, this item makes clear that the FCC is yet considering whether this spectrum should be made available on a licensed basis, and if so, by what licensing regime, and whether it should be auctioned.

This item also requests comment on whether "personal/portable devices can operate in any of the TV channels without causing harmful interference".

The FCC issued a short release [PDF] that describes this item, and all five Commissioners wrote statements.

FCC Chairman Kevin Martin spoke with reporters after the October 12 meeting regarding licensed and unlicensed use. He said that "The Commission looks at making sure that we have a balance of both licensed and unlicensed spectrum available. And, unlicensed and licensed use have different benefits, and pluses and minuses. And we try to make sure that we have some spectrum available for licensed use, and we try to make sure that we have some spectrum that is available for unlicensed use. So, I think we try to find a balance of that. And so, this one doesn't have a tentative conclusion. But, we are asking, what would be the best use of this spectrum, both from a technical perspective, and a policy perspective. Should it, would it be better off to make sure it is put forth in a licensed manner, an unlicensed manner. And, we will seek comment on it, seek questions on it. And, then we will make a decision about it, after we have had a chance to deliberate the issues that are raised." See also, brief written statement [PDF] of Martin.

In contrast, two Commissioners expressed a preference for unlicensed use of this spectrum. Commissioner Michael Copps wrote in his statement [PDF] that "The Commission's assumption has always been unlicensed". He added that making spectrum available for unlicensed WiFi use has been "enormously successful".

Copps (at left) also noted that "With our recent AWS auction and the upcoming 700 Mhz auction, we are opening up a huge swath of prime spectrum to licensed use -- and it seems to me, on the present record, that the appropriate balance is to open up the TV white spaces to unlicensed use. So while I am more than happy to give careful consideration to comments from those who favor licensed use of the white spaces, I would have preferred that today’s item announce a rebuttable presumption in favor of unlicensed use."

Similarly, Jonathan Adelstein wrote in his statement [PDF] that "The unlicensed, Wi-Fi movement has been one of the great telecommunications success stories over the past several years by enabling American consumers to offer and receive broadband services at the most local levels."

He continued that "I want to specifically express my preference for use of this spectrum on an unlicensed basis. Unlicensed services, with their low barriers to entry, present such a great opportunity for the deployment of broadband offerings in communities across the country no matter their size or financial status. Considering the favorable propagation characteristics for wireless broadband services in the 700 MHz band and the important obligation to protect existing television operations from harmful interference, I believe that unlicensed operations present the best use of the spectrum for this country."

Robert McDowell wrote in his statement [PDF] that this item "provides tremendous opportunities for further unlicensed use of these slices of the spectrum". See also, brief statement of Deborah Tate.

The FCC release states that the order portion of this item concludes that "fixed low power devices can be allowed to operate on TV channels in areas where those frequencies are not being used for TV or other incumbent licensed services." However, this does not extend to TV channel 37, which is used by radio astronomy and wireless medical telemetry services, or to TV channels 52-69, which have been reallocated for public safety and other mobile services.

The FCC release also states that the FCC "declined to permit the operation of personal/portable devices on TV channels 14-20, which are used by public safety service in 13 cities, leaving for further consideration the issue of whether fixed devices might be used in that band. Marketing of such devices may commence on February 18, 2009, after the digital television (DTV) transition is complete and all TV stations are in operation on their permanent DTV channels."

The FCC release states that the further NPRM portion of this item requests comments pertaining to "whether personal/portable devices can operate in any of the TV channels without causing harmful interference", "whether low power devices should be permitted on TV channels 2-4, which are used by TV interface devices such as VCRs, and whether fixed low power devices can be permitted on TV channels 14-20."

The FCC release also states that the FCC "made detailed technical proposals to facilitate use of a dynamic frequency selection (DFS) mechanism to ensure that TV band devices operate only on vacant TV channels. In addition, it sought further comment on implementation details for the geo-location and control signal interference avoidance approaches discussed in the Notice in this proceeding."

This item is FCC 06-156 in ET Docket No. 04-186. Hugh Van Tuyl explained this item at the October 12 meeting.

The FCC adopted its original NPRM back on May 13, 2004. See, Notice of Proposed Rulemaking [38 pages in PDF] in the proceeding titled "In the Matter of Unlicensed Operation in the TV Broadcast Bands Additional Spectrum for Unlicensed Devices Below 900 MHz and in the 3 GHz Band". This NPRM is FCC 04-113 in ET Docket Nos. 04-186 and No. 02-380. See also, story titled "FCC Adopts NPRM Regarding Unlicensed Use of Broadcast TV Spectrum" in TLJ Daily E-Mail Alert No. 898, May 14, 2004; and story titled "FCC Releases NPRM Regarding Unlicensed Use of TV Spectrum" in TLJ Daily E-Mail Alert No. 905, May 26, 2004.

10/12. The Federal Communications Commission (FCC) adopted, but did not release, an Order regarding Qualcomm's request for declaratory ruling (DR) regarding the interference protection requirements applicable to the 700 MHz Band. The FCC declined to issue the DR requested by Qualcomm, but granted Qualcomm a limited waiver. Qualcomm's Paul Jacobs is pleased.

The FCC issued a short release, and two Commissioners released short statements.

Qualcomm filed its Petition for Declaratory Ruling with the FCC on January 14, 2005. See, pages 1-25, pages 26-50, and pages 51-56 [PDF page numbers].

Qualcomm, which holds lower 700 MHz band licenses, requested that the FCC issue a DR that the interference calculation procedures contained in the FCC's Office of Engineering and Technology's (OET) Bulletin No. 69 are acceptable to demonstrate compliance with the TV/DTV interference protection criteria of Section 27.60 of the FCC Rules. Qualcomm argued that granting the request would speed deployment of its new Mediaflo service, which is a nationwide mediacast network delivering high quality video and audio content, and mobile data applications, to third generation mobile phones.

The FCC wrote in its release that "MediaFLO is designed to use Qualcomm's 700 MHz spectrum license for downlink (base station to mobile) communications and existing mobile telephone networks for uplink (mobile to base station) communications. Because Qualcomm’s licenses cover TV/DTV Channel 55 of the 700 MHz Band, the company must protect broadcasters on Channels 54, 55 and 56 from interference using the criteria set forth in the FCC’s rules." (Parentheses in original.)

The FCC wrote that the yet to be released order declares that OET Bulletin 69 "with certain modifications, is an appropriate methodology for demonstrating whether the MediaFLO system complies with the FCC’s rules on interference protection in the 700 MHz Band. OET-69 is an established engineering methodology for making radio field strength predictions relating to the broadcast television service. Additionally, the FCC and its licensees have substantial experience with its implementation, particularly as it relates to predicting interference to television service from transmitters located both outside and inside another station’s service contour. Given the particular characteristics of MediaFLO signals, which share many similarities with broadcast digital television signals, the FCC has determined that use of OET-69 is appropriate for demonstrating whether MediaFLO will comply with the interference protection requirements in markets where Qualcomm seeks to operate during the DTV transition."

The FCC release adds that "the FCC declined Qualcomm's request to declare that predicted interference to not more than two percent of the population served by a TV/DTV station is de minimis and therefore acceptable. However, the FCC granted Qualcomm a limited waiver using a measured approach where the allowable predicted interference to a TV/DTV station’s service caused by the MediaFLO system will increase incrementally each year from the release of today’s Order until the end of the DTV transition in February 2009: 0.5 percent of the population within the TV/DTV station’s Grade B contour for the first year, 1.0 percent for the second year, and 1.5 percent for the remainder of the DTV transition."

The FCC release also states that the FCC declined Qualcomm's request to establish streamlined processing of applications.

Paul Jacobs, CEO of Qualcomm, stated in a release Qualcomm and its Mediaflo subsidiary "are very pleased with the FCC ruling ... We'd like to express our appreciation to Chairman Martin, the other Commissioners and the FCC staff for their commitment to the industry and their vision in enabling the development and delivery of new technology and services for consumers."

This item is FCC 06-155 in WT Docket No. 05-7. Paul Moon explained this item at the October 12 FCC meeting.

Mediaflo is a subsidiary of Qualcomm. Crown Castle International also has a pending petition regarding its Modeo mobile television division. There are also other related requests.

FCC Chairman Kevin Martin spoke with reporters after the October 12 meeting. He was asked about the Modeo request. He answered that "I think that we will end up trying to address other waiver, all of the waiver requests, as fast as we can. Some of the waiver requests in front of us also involve not only commercial uses, but requests of waivers of interference on government uses. And, when that occurs, we have to coordinate that with other agencies. And, that process sometimes takes a while. So, we have to end up doing that as well."

10/12. The Federal Communications Commission (FCC) adopted, but did not release, a Notice of Inquiry (NOI) seeking information to assist it in preparing its annual report to the Congress on the status of competition in the market for the delivery of video programming.

The FCC issued a short release that describes this NOI. It states, among other things, that the "FCC seeks information on video programming distributed over the Internet and via Internet Protocol (“IP”) networks".

FCC Commissioner Michael Copps wrote in a separate statement [PDF] that "We are seeing new technologies that have the potential to utterly transform the viewing experience." He also stated, at the October 12 meeting that IPTV may "utterly transform the viewing experience".

He also wrote that "Getting these new products and services out to all Americans is going to be a challenge, however, so we need to be working toward the kind of competition that leaves no area behind, whether it’s the inner city or the rural farm."

See also, statement [PDF] of Robert McDowell and statement [PDF] of Jonathan Adelstein. This NOI is FCC 06-154 in MB Docket 06-189. Marcia Glauberman summarized this item at the FCC's October 12 meeting.

10/12. Federal Communications Commission (FCC) Chairman Kevin Martin spoke with reporters after the October 12, 2006, meeting. He was asked, "Is this a good time to move forward with the Section 621 franchising now that Congress has recessed?" Martin responded, "I think that I have publicly stated I would like to move forward by the end of the year. And, I would still like for the Commission to be able to try to address what it can do to further the opportunity for competitive video entry, and for deregulation of franchise reform by the end of the year. And, I still hope to be able to do so."

10/12. FCC Commissioner Robert McDowell spoke at the FCC's meeting on October 12. He noted the presence of a French regulator at the meeting. McDowell commented that the British were defeated at the Battle of Yorktown with the assistance of the French fleet. McDowell then asserted that this victory set in motion a cascading series of events that "directly lead to the creation" of the FCC. The British forces surrendered at Yorktown in October of 1781.

10/12. The Federal Communications Commission (FCC) announced that it has postponed consideration of its Memorandum Opinion and Order regarding the merger of AT&T and BellSouth from Thursday, October 12, to Friday, October 13, 2006. The FCC also postponed to Friday its consideration of a Notice of Inquiry (NOI) regarding broadband industry practices.

The FCC announced this delay late on Wednesday, October 11. FCC spokesman Clyde Ensslin stated that "We are committed to evaluating merger applications fairly and in a manner consistent with the public interest. We are continuing to work to complete our AT&T and BellSouth merger review in a timely manner." The FCC also issued a notice [PDF].

Earlier on October 11, 2006, the Department of Justice's (DOJ) Antitrust Division announced its approval of AT&T's acquisition of BellSouth, without imposing any conditions. See, DOJ release and story titled "DOJ Approves AT&T BellSouth Merger" in TLJ Daily E-Mail Alert No. 1,466, October 11, 2006.

FCC Chairman Kevin Martin (at right) spoke with reporters after the Thursday morning FCC meeting. He was asked about negotiations, and whether election year politics is affecting this proceeding. He responded that "I don't have any comment, or go into any of the details about the negotiations among all of the Commissioners about the merger item. We are continuing to still work on the merits of the issues that people are raising. So, I am not focused on the politics of this either. I am focused on the merits of the issues that people have raised."

He was also asked whether Commissioner Robert McDowell will participate. Martin said that "I don't have any comment on Commissioner McDowell's participation. But I do say that I am focusing on trying to make sure that I work with the concerns of my Democratic colleagues, and try to address the concerns that they have raised, in a way that we can try to get their support, like I have worked with them on mergers in the past."

He was also asked about the DOJ's decision to approve the merger, without imposing any conditions. He said that "Obviously, the Department of Justice goes through its own analysis. But, I wasn't particularly surprised. No. And, I had, we have evaluated a lot of the issues that have been raised, and have tried to put forth an item that I think the other Commissioners can end up supporting, and we are still trying to negotiate what concerns they might have. But, I have been more focused here on what the, on the issues that the Commissioners are discussing, rather than on any announcement that was made yesterday."

The House will not meet. It may return from it elections recess on Monday, November 13, 2006. The adjournment resolution, HConRes 483, provides for returning on Thursday, November 9, at 2:00 PM.

The Senate will not meet. See, HConRes 483.

9:00 AM. The Department of Commerce's (DOC) Bureau of Industry and Security's (BIS) Deemed Export Advisory Committee (DEAC) will meet. See, notice in the Federal Register, September 22, 2006, Vol. 71, No. 184, at Pages 55429. Location: main lobby of the DOC's Hoover Building, 14th Street between Constitution and Pennsylvania Avenues, NW.

9:30 AM. The Federal Communications Commission (FCC) will hold a meeting. The event will be webcast by the FCC. Location: FCC, 445 12th Street, SW, Room TW-C05 (Commission Meeting Room).

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in BellSouth Telecommunications v. FCC, App. Ct. No. 05-1032. The case pertains to whether BellSouth discriminated in favor of its long distance subsidiary in violation of 47 U.S.C. § 272. However, the precise nature of either the facts or issues in this proceeding is not public information. See for example, heavily redacted brief [81 pages in PDF] of the Federal Communications Commission (FCC). Judges Tatel, Kavanaugh and Williams will preside. Location: Courtroom 20, 333 Constitution Ave., NW.

12:30 - 1:45 PM. The Federal Communications Bar Association's (FCBA) Transactional Practice Committee will host a brown bag lunch. The FCBA states that the topic will be the "forms of financing available to communications companies -- angel, VC, mezzanine, private equity, traditional loans, public offerings". The speakers will include Tara Giunta (Paul Hastings Janofsky & Walker) and Rebecca Arbogast (Stifel Nicolaus). RSVP to Christine Crowe at ccrowe at wbklaw dot com or 202-383-3334. Location: Paul Hastings, 875 15th St.,  NW.

2:00 - 3:00 PM. The President's National Security Telecommunications Advisory Committee (NSTAC) will hold a partially closed meeting by teleconference. The open portion of the meeting will pertain to the Emergency Communications and Interoperability Task Force (ECITF). The closed portion of the meeting will include a discussion of, and vote on, the Global Infrastructure Resiliency (GIR) Report. See, notice in the Federal Register, October 2, 2006, Vol. 71, No. 190, at Page 57991.

2:00 - 5:30 PM. The U.S. Chamber of Commerce will host an event titled "The Global Fight Against Counterfeiting and Piracy: A Forum on International Enforcement". The speakers will include Chris Israel (International IPR Enforcement Coordinator at the U.S. Department of Commerce), Jorge Amigo (Director, Intellectual Property Office, Mexico), Benoit Battistelli (Director, Intellectual Property Office, France), Doug George (Director, Intellectual Property Information and Trade Policy Division, Foreign Affairs and International Canada), Ken Hansen (Director, Federal Enforcement Branch, Royal Canadian Mounted Police), and Brian Isaac (Canadian Anti-Counterfeiting Network). The notice of the event states that "Credentialed Members of the Media are Invited to Attend. For more information, or to register, reporters may ... call 202-463-5682." Location: U.S. Chamber of Commerce, 1615 H St., NW.

6:30 - 8:30 PM. The Federal Communications Bar Association's (FCBA) Legislative Practice Committee and Young Lawyers Committee will host an event title "Happy Hour". For more information, contact Paula Timmons at paula at paulatimmonsconsulting dot com or 202-255-1627 or Chris Fedeli at cfedeli at crblaw dot com or 202-828-9874. Location: Lounge 201, 201 Massachusetts Ave., NE.

Day one of a two day conference titled "Standards Bodies and Patent Pools: Key Legal and Business Developments". FTC Commissioner Pamela Harbour will give a speech titled "Standards Bodies and Patent Pools: Key Legal and Business Developments" on October 12. See, notice and agenda. Location: Wyndham Washington DC Hotel, 1400 M St., NW.

POSTPONED. 9:00 - 11:00 AM. The Progress & Freedom Foundation's (PFF) Digital Age Communications Act Project (DACA) will release a report containing recommendations of its Institutional Reform Working Group. The speakers will include Randolph May (Free State Foundation) and John Duffy (George Washington University School of Law). See, notice and registration page. See also, story titled "PFF Announces Digital Age Communications Act Project" in TLJ Daily E-Mail Alert No. 1,068, February 2, 2005. Breakfast will be served. Location: First Amendment Lounge, National Press Club, 529 14th St. NW, 13th Floor.

The 11:00 AM. The Federal Communications Commission (FCC) will hold a meeting. The FCC may issue an order in its AT&T BellSouth merger review proceeding, and a notice of inquiry regarding broadband industry practices. See, notice [PDF]. The event will be webcast by the FCC. Location: FCC, 445 12th Street, SW, Room TW-C05 (Commission Meeting Room).

12:15 - 1:45 PM. The Federal Communications Bar Association's (FCBA) HLS/Emergency Communications Committee will host a brown bag lunch to plan future events. For more information contact Jennifer Manner at 703-390-2730 or jmanner at msvlp dot com. Location: Pillsbury Winthrop Shaw Pittman, 2400 N St., NW.

Day two of a two day conference titled "Standards Bodies and Patent Pools: Key Legal and Business Developments". See, notice and agenda. Location: Wyndham Washington DC Hotel, 1400 M St., NW.

6:00 - 8:15 PM. The Federal Communications Bar Association (FCBA) will host a continuing legal education (CLE) seminar titled "Client Creation, Conflicts and Confidentiality in the Administrative Process". The price to attend ranges from $50 to $125. See, registration form [PDF]. The deadline to register is 5:00 PM on October 12. Location: Wiley Rein & Fielding, 1776 K St., NW.

6:00 - 9:15 PM. The DC Bar Association will host a continuing legal education (CLE) seminar titled "How to Protect and Enforce Trademark Rights: A Primer". The speakers will include Shauna Wertheim (Roberts Mardula & Wertheim) and Steven Hollman (Hogan & Hartson). The price to attend ranges from $90-$135. For more information, call 202-626-3488. See, notice. Location: D.C. Bar Conference Center, 1250 H Street NW, B-1 Level.

Deadline to submit comments to the European Commission (EC) in response to its public consultation regarding possible regulation of "the use of mobile phones by children and young people". The EC seeks comments "linked to content and behaviour, such as access to harmful or illegal content, bullying (e.g. distribution of abusive or compromising messages and photos amongst children), grooming (e.g. strangers “making friends” with children with a view to meeting them), risks to the privacy of children, and the risk of unexpectedly high expense." See, EC release.

6:00 - 8:15 PM. There will be a brown bag lunch titled "Deploying IP-based Services in Rural Areas". The Federal Communications Bar Association states that this event is hosted by Common Carrier Committee and IP-Based Communications Practice Committee will host a brown bag lunch. For more information, contact Andy Morentz at amorentz at gci dot com. Location: Federal Communications Commission (FCC), 6th Floor South Conference Room, 445 12th St., SW.

6:00 - 8:15 PM. The DC Bar Association will host a continuing legal education (CLE) seminar titled "Introduction to Export Controls". The speakers will include Thomas Scott (Weadon & Associates) and Carol Kalinoski (Kalinoski & Associates). The price to attend ranges from $90-$135. For more information, call 202-626-3488. See, notice and notice. Location: D.C. Bar Conference Center, 1250 H Street NW, B-1 Level.

Day one of a two day meeting of the Department of Labor's (DOL) Bureau of Labor Statistics' (BLS) Business Research Advisory Council (BRAC). See, notice in the Federal Register, October 2, 2006, Vol. 71, No. 190, at Pages 58013-58014. Location: Conference Center, Postal Square Building, 2 Massachusetts Ave., NE.

Day one of a two day conference hosted by the National Institute of Standards and Technology (NIST) titled "Moving Towards Interoperability -- Technologies for Affordable, Accessible Healthcare". See, notice. The price to attend is $195. Location: NIST, Red Auditorium, 100 Bureau Drive, Gaithersburg, MD.

12:30 - 2:00 PM. The DC Bar Association will host a panel discussion titled "Universal Service: What is on the Horizon?". The speakers will include James Reid (assistant to Sen. John Rockefeller (D-WV)), Paul Garnett (CTIA-The Wireless Association), Eric Einhorn (AT&T), Lisa Zaina (Exec. Dir. of the Independent Telephone and Telecommunications Alliance), and Kathleen Grillo (Verizon). The price to attend ranges from $15 to $20. For more information, call 202-626-3463. See, notice. Location: D.C. Bar Conference Center, 1250 H Street, NW, B-1 Level.

Day one of a two day event hosted by the Information Technology Association of America (ITAA) titled "ITAA Identity Management Conference 2006". See, notice. The speakers will include Rep. Tom Davis (R-VA), Robert Cresanti (Under Secretary of Commerce for Technology), and Frank Moss (Deputy Assistant Secretary Passport Services, Department of State). For more information, contact Jennifer Kerber at jkerber at itaa dot org. Location: Sheraton Premiere Tysons Corner, VA.

Day one of a three day convention of the American Intellectual Property Law Association (AIPLA) titled "2006 Annual Meeting". See, convention web site. Location: Marriott Wardman Park, 2660 Woodley Park Road, NW.

Day two of a two day meeting of the Department of Labor's (DOL) Bureau of Labor Statistics' (BLS) Business Research Advisory Council (BRAC). Some of the many items on the agenda may be technology related. On October 19, from 8:30 - 10:00 AM, the Committee on Productivity and Foreign Labor Statistics will meet. Its agenda includes "Update on manufacturing compensation costs in China and India", "Cross-Country Comparisons of Consumer Price Indexes", "Update on International Technical Cooperation", and "Are Those Who Bring Work Home Really Working Longer Hours?" See, notice in the Federal Register, October 2, 2006, Vol. 71, No. 190, at Pages 58013-58014. Location: Conference Center, Postal Square Building, 2 Massachusetts Ave., NE.

Day two of a two day conference hosted by the National Institute of Standards and Technology (NIST) titled "Moving Towards Interoperability -- Technologies for Affordable, Accessible Healthcare". See, notice. The price to attend is $195. Location: NIST, Red Auditorium, 100 Bureau Drive, Gaithersburg, MD.

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