Tech Law Journal Daily E-Mail Alert
Monday, November 5, 2007, Alert No. 1,669.
Home Page | Calendar | Subscribe | Back Issues | Reference
FCC Files Cert Petition in Broadcast Profanity Case

11/2. The Department of Justice's (DOJ) Office of the Solicitor General (OSG), on behalf of the Federal Communications Commission (FCC), filed its petition for writ of certiorari [186 pages in PDF] with the Supreme Court of the US (SCUS) in FCC & USA v. Fox Television Stations, a case involving FCC regulation of broadcast profanity.

Background. On November 6, 2006, the FCC issued an Order [36 pages in PDF] on remand regarding complaints that four broadcast television programs contained indecent and/or profane material. The Order concluded, among other things, that comments made by Nicole Richie during "The 2003 Billboard Music Awards" and by Cheryl LaPiere during the "The 2002 Billboard Music Awards" were indecent and profane.

The broadcasts at issue included a single use of the word "fuck", or a word derived therefrom.

This order is FCC 06-166. See also, stories titled "FCC Releases Indecency Orders" in TLJ Daily E-Mail Alert No. 1,332, March 20, 2006, and "FCC Releases Order on Remand Regarding Broadcast Indecency" in TLJ Daily E-Mail Alert No. 1,484, November 7, 2006.

The FCC's relied for statutory authority on 18 U.S.C. § 1464. It provides in full that "Whoever utters any obscene, indecent, or profane language by means of radio communication shall be fined under this title or imprisoned not more than two years, or both."

The FCC also relied on the SCUS's 1978 opinion in FCC v. Pacifica Foundation, which is reported at 438 U.S. 726.

In Pacifica, the Supreme Court upheld the FCC's order regarding a radio broadcast of a George Carlin monologue. It wrote that "We have long recognized that each medium of expression presents special First Amendment problems. ... And of all forms of communication, it is broadcasting that has received the most limited First Amendment protection. Thus, although other speakers cannot be licensed except under laws that carefully define and narrow official discretion, a broadcaster may be deprived of his license and his forum if the Commission decides that such an action would serve ``the public interest, convenience, and necessity.´´"

Fox, CBS, and ABC filed petitions for review of the FCC's order. The U.S. Court of Appeals (2ndCir) issued its divided opinion [53 pages in PDF] on June 4, 2007, vacating the order of the FCC. (A copy of the opinion is also attached to the petition for writ of certiorari. It is also reported at 489 F.3d 444.)

For a summary of the opinion, see story titled "2nd Circuit Vacates and Remands FCC Profanity Order" in TLJ Daily E-Mail Alert No. 1590, June 4, 2007.

The FCC now seeks review of this opinion.

DOJ/FCC's Argument. The DOJ/FCC petition argues that "the court of appeals adopted an analysis that directly conflicts with the approach toward broadcast-indecency regulation that this Court mandated in" FCC v. Pacifica.

The petition continues that the court criticized the FCC "for taking context into account and refusing to treat a single use of an expletive, no matter how graphic or gratuitous, as per se not indecent, even though, in Pacifica, this Court emphasized that ``context is all-important´´ in evaluating indecency."

The petition states that "The decision of the court of appeals is also inconsistent with settled principles governing judicial review of agency action. The court asserted that the Commission had not adequately explained why it reversed its policy of categorically exempting isolated expletives from the federal restrictions on indecent broadcasts. In reality, the Commission provided a thorough, reasoned explanation for its change in policy. Under the deferential standard of review required by the Administrative Procedure Act (APA), 5 U.S.C. 501 et seq., the Commission’s judgment as to how best to enforce the federal prohibition on the broadcast of indecent material should have been upheld, and the court’s contrary conclusion was erroneous."

The DOJ/FCC petition also argues that "In most cases, a remand to an agency for a fuller explanation of a policy would not merit this Court’s review. Here, however, the court of appeals candidly acknowledged that, under its decision, the Commission probably will be unable to ``adequately respond to the constitutional and statutory challenges´´ in this case even by ``proffering a reasoned analysis for its new approach to indecency.´´"

It concludes that "The court has thus sent the Commission back to run a Sisyphean errand while effectively invalidating much of the Commission’s authority to enforce 18 U.S.C. 1464. In the meantime, the Commission is left in the untenable position of having a grant of authority that the public expects it to exercise, and that Pacifica allows it to exercise, but that the Second Circuit has indicated cannot be meaningfully exercised consistently with that court’s view of the APA and the First Amendment. Accordingly, this Court’s review is warranted."

Case Information. This case is FCC & USA v. Fox Television Stations, Inc., et al., Supreme Court of the United States, Sup. Ct. No. __, a petition for writ of certiorari to the U.S. Court of Appeals for the 3rd Circuit.

This Court of Appeals case is Fox Television Stations, Inc., et al. v. FCC and USA, and consolidated petitions for review of a final order of the FCC, App. Ct. Nos. 06-1760-ag (L), 06-2750-ag (CON), and 06-5358-ag (CON). Judge Pooler wrote the opinion of the court, in which Judge Hall joined. Judge Leval dissented.

FCC Imposes Universal Service and E911 Location Accuracy Requirements on Alltel

10/26. The Federal Communications Commission (FCC) adopted and released a Memorandum Opinion and Order (MOO) in which it approved Alltel's merger with Atlantis.

In this MOO the FCC continues its practice of using antitrust merger review proceedings (which are nominally license transfer proceedings) to pursue policy goals unrelated to the transaction under review.

This approval contains conditions pertaining to universal service support and E911 location tracking accuracy. These conditions bind only the parties to the transaction, and not other similarly situated companies.

First, this approval is conditioned upon the capping of Alltel's high cost universal service support at June 2007 levels on an annualized basis for an indeterminate period.

The MOO states that "we impose an interim cap on high-cost, competitive ETC support provided to ALLTEL as a condition of this transaction, which will apply until fundamental comprehensive reforms are adopted to address issues related to the distribution of support and to ensure that the universal service fund will be sustainable for future years. As a result of this condition, ALLTEL will be capped at the level of support that it received as a competitive ETC for 2007, measured as of the end of June 2007 on an annualized basis."

Second, the MOO states that "we find it appropriate to condition ALLTEL’s receipt of high cost funds in excess of annualized, June 2007 levels on a showing of current PSAP-level compliance for those PSAPs in their study area that are capable of receiving E911 Phase II location data."

Robert McDowellCommissioner Robert McDowell (at left) wrote in a statement [PDF] that "This ``Jack in the Box´´ surprise requirement that suddenly sprung up appears as an illogical afterthought. It is unclear to me how ALLTEL might fulfill this condition given that the Commission currently has an open proceeding addressing the details of how carriers must implement PSAP-level accuracy."

On September 11, 2007, the FCC adopted a Report and Order (R&O) regarding E911 Phase II location accuracy requirements at the Public Safety Answering Point (PSAP) service area level. However, the FCC has yet to release that R&O. To date, the FCC has only issued a short release [PDF].

See also, story titled "FCC Adopts E911 Location Tracking Accuracy Benchmarks" in TLJ Daily E-Mail Alert No. 1,640, September 17, 2007, and story titled "FCC Extends E911 Location Tracking Rules to Interconnected VOIP" in TLJ Daily E-Mail Alert No. 1,589, May 31, 2007.

Commission McDowell wrote in his September 11 statement [PDF] that that R&O is "fraught with highly dubious legal and policy maneuvering that bypasses a still developing record on what should be the reasonable and appropriate implementation details".

This MOO is FCC 07-185 in WT Docket No. 07-128.

FCC Adopts R&O Abrogating Contracts Between MDU Owners and Cable Companies

10/31. The Federal Communications Commission (FCC) adopted, but did not release, a Report and Order (R&O) that asserts regulatory authority over the content of contracts negotiated by owners of multiple dwelling units (MDUs), such as apartment buildings, and cable companies.

The FCC issued a short release [PDF] that describes this R&O, and all five Commissioners wrote statements. The release is short on detail. However, it states that the R&O "prohibits the enforcement or execution of existing exclusivity clauses and the execution of new ones by MVPDs subject to section 628 of the Communications Act". MVPDs is an acronym for multichannel video programming distributors. Cable companies are one kind of MVPD.

FCC Chairman Kevin Martin wrote in his statement [PDF] that "Exclusive contracts between incumbent cable operators and owners of ``multiple dwelling units´´ (MDUs) have been a significant barrier to competition. Today's order removes this barrier."

Martin (at right) added that "people who live in apartment buildings often have no choice of companies when it comes to their video service provider. This is because building owners often strike exclusive deals with one cable operator to serve the entire building, eliminating competition. There is no reason that consumers living in apartment buildings should be locked into one service provider. This phenomenon is particularly problematic given the large number of Americans that live in apartment buildings."

FCC Commissioner Robert McDowell concurred, offered faint praise, and questioned the legality of this R&O. He wrote in his statement [PDF] that "I am concerned about the legal sustainability of the Order, should it be appealed. My concern is this: after unanimously inviting cable companies and building owners to strike such deals in 2003, the FCC may now be abrogating those exact same agreements immediately rather than waiting for them to expire and without providing a grace period."

He continued that "In some cases, cable companies relied upon our 2003 Order to make arrangements with owners of older buildings to wire them for the first time, or to upgrade them with newer technologies, in exchange for a limited period of time when they could be the exclusive video service provider to allow for recovery of their investments. The record indicates that many buildings may have been upgraded, or brought online for the first time, as a result of this policy. To flash cut to a new regulatory regime without a sensible transition period only begs for an appeal that could result in a court throwing out all of our Order, the good with the bad."

He also questioned the sufficiency of the "evidence in the record".

FCC Commissioner Deborah Tate, who lacks expertise in real property and contract law, wrote in her statement [PDF] that "This Order does not abrogate existing contracts, but rather declares exclusivity clauses to be unenforceable."

The FCC's release also states that the R&O makes several findings.

First, it finds that "exclusivity clauses that bar competitive entry harm competition and broadband deployment and can insulate the incumbent MVPD from any need to improve its service".

Second, it finds that "exclusivity clauses are widespread in agreements between MVPDs and MDU owners."

Third, it finds that "incumbent cable operators have increased the use of exclusivity clauses in their agreements with MDU owners with the entry of LECs into the video marketplace".

Fourth, it finds that "the use of exclusivity clauses in contracts for the provision of video services to MDUs constitutes an unfair method of competition or an unfair act or practice under Section 628(b)."

The FCC's release also states that the FCC adopted a Further Notice of the Proposed Rulemaking (FNPRM) "that seeks comment on whether we should take action to address exclusivity clauses entered into by DBS providers, private cable operators, and other MVPDs who are not subject to Section 628. The Further Notice also seeks comment on whether the Commission should prohibit exclusive marketing and bulk billing arrangements."

The release states that the R&O contains "rules". The release does not disclose the nature of these "rules".

The FCC did not release the text of the R&O. It only issued a short self-commending release in which it praised its efforts to "foster greater competition" and "increase choice and competition".

Reaction. The telecommunications companies lobbied for this R&O, and are the primary beneficiaries. They praised it.

Susanne Guyer of Verizon stated in a release that "Millions of consumers live in apartments, condos or other private developments, and, until now, many of them have been denied the benefits of video competition as a result of exclusive access agreements used by cable providers to shield themselves from competition ... The FCC decision will provide access to new competitive options for residents of these properties and encourages further deployment of broadband networks."

Walter McCormick, head of the USTelecom, stated in a release that "Today, the FCC took a strong step forward to help bring video and broadband competition to consumers living in apartments and condominiums. The Commission's action will ensure that all consumers -- in particular seniors on fixed incomes and minorities -- benefit from greater choices, lower prices and more innovative offerings for video and high-speed services."

Cable companies opposed this R&O. Dan Brenner, of the National Cable & Telecommunications Association (NCTA), stated in a release that "the FCC's action to terminate existing contracts is an unprecedented, legally suspect step that could harm consumers and jeopardize the delivery of advanced services to low-income neighborhoods where other video providers have chosen not to offer service".

He added that "We continue to support a regulatory structure that treats all providers equally so that companies can compete in the marketplace, and not in the halls of government. But today's FCC action to ban future exclusive contracts eliminates these contracts for some but not all video providers. If eliminating exclusive contracts for some video providers is good for consumers, then it should have been applied to all providers."

Randolph May, head of the Free State Foundation, stated in a release that "The FCC's decision to prohibit cable operators from entering into exclusive contracts with apartment building owners is the type of decision, wholly apart from the policy pros and cons, which raises substantial rule of law concerns. The agency's statutory authority to take this action, especially abrogating existing contracts, is questionable. With questionable statutory authority, and constitutional property rights values clearly implicated, the FCC should have acted more modestly."

FCC Proceeding Information. The FCC adopted its Notice of Proposed Rulemaking (NPRM) on March 22, 2007, and released the text [19 pages in PDF] on March 27. See, stories titled "FCC Adopts MDU Forced Access NPRM" in TLJ Daily E-Mail Alert No. 1,556, March 26, 2007, and "FCC Releases MDU NPRM" in TLJ Daily E-Mail Alert No. 1,557, March 27, 2007. See also, notice in the Federal Register, April 18, 2007, Vol. 72, No. 74, at Pages 19448-19453. This NPRM is FCC 07-33 in MB Docket No. 07-51.

The just adopted R&O is FCC 07-189 in MB Docket No. 07-51.

Commentary on FCC's R&O Regarding MDU Owners and Cable Companies

10/31. The Federal Communications Commission (FCC) adopted, but did not release, a Report and Order (R&O) that asserts regulatory authority over the content of contracts negotiated by owners of multiple dwelling units (MDUs), such as apartment buildings, and cable companies.

Section 628(b). The R&O reveals that the statutory provision that the FCC relies upon in adopting this R&O is Subsection 628(b) of the Communications Act, which is codified at 47 U.S.C. § 548(b).

This subsection provides that "It shall be unlawful for a cable operator, a satellite cable programming vendor in which a cable operator has an attributable interest, or a satellite broadcast programming vendor to engage in unfair methods of competition or unfair or deceptive acts or practices, the purpose or effect of which is to hinder significantly or to prevent any multichannel video programming distributor from providing satellite cable programming or satellite broadcast programming to subscribers or consumers."

Subsection 623(c) also gives the FCC authority to write implementing regulations.

The R&O finds that certain contracts between MDUs and MVPDs constitute "an unfair method of competition or an unfair act or practice" under Section 628(b). Notably, the FCC's release does not claim that there are "deceptive acts".

There are numerous weaknesses in this assertion. First, while this section regulates the actions of a "cable operator", it does not regulate MDU owners. A R&O implementing Section 628(b) cannot be enforced against MDU owners. Yet, as a practicable matter, if this R&O is to be enforced, it will have to be applied to some MDU owners.

Second, this section only affects acts that hinder or prevent MVPDs "from providing satellite cable programming or satellite broadcast programming to subscribers or consumers". Yet, the R&O abrogates contracts that do not hinder this.

That is, this section is subject to the interpretation that is is merely a Congressional attempt to restrict incumbent cable companies from abusing market power to obtain exclusive access to programming. In contrast, this R&O goes to exclusive access to real property for the purpose of installing wiring. Even if the cable companies have engaged in "unfair methods of competition", they have not used these "unfair methods of competition" to obtain what Section 628(b) prohibits them from obtaining.

Third, this interpretation would entail construing Section 628(b) as redundant of Section 1 of the Sherman Act (15 U.S.C. § 1), and Section 5 of the Federal Trade Commission Act (15 U.S.C. § 45), but only for communications, and with the FCC, rather than the DOJ's Antitrust Division and the Federal Trade Commission (FTC) as the antitrust enforcer.

The FCC's release uses the phrase "MVPDs subject to section 628". Not all MVPDs are subject to this section. Only three categories are subject to this section: "cable operator", "satellite cable programming vendor in which a cable operator has an attributable interest", and "satellite broadcast programming vendor".

It should also be noted that since the FCC relies upon Section 628(b), and Section 628(b) regulates a "cable operator", then any broadband service provider or MVPD that is not a "cable operator", remains free to enter into an exclusive contract with an MDU owner. The FCC's reliance upon Section 628(b) enables the FCC to only abrogate and preclude some types of exclusive contracts.

Property Rights. The FCC's R&O refers to MDUs. This is not a category of regulated entities under the Communications Act. MDUs are real property. Real property, with some exceptions not applicable here, is defined by state law. No state has defined the property rights of MDU owners in a way the would abrogate existing contracts with cable operators.

Property exists in the rights accorded to the owner. These rights vary among different types of property. However, across almost all forms of property, the most fundamental right is the right to exclude. The FCC's R&O diminishes apartment building owners' right to exclude others.

The FCC's release, and the statement of the Commissioners, repeatedly refer to "consumers". For the purpose of analyzing the legality of the FCC's R&O, these "consumers" are tenants. They merely hold leasehold interests. Apartment buildings are owned by their owners. They are the holders of the relevant property rights. Their contract rights and their property rights are affected by the FCC's R&O and any attempts by the FCC or service providers to enforce it.

There are three specific prohibitions in the US Constitution that prohibit the states and the federal government from taking property and/or abrogating contracts. There are more in state constitutions and statutes.

First, Article I, Section 10 provides that "No State shall ... pass any ... Law impairing the Obligation of Contracts".

Second, the 5th Amendment provides that "nor shall private property be taken for public use without just compensation". The Fifth Amendment applies on its face to federal action. Hence, this restricts the FCC's authority to issue and enforce its R&O. The Supreme Court has also extended this to the states via the incorporation doctrine.

Commissioner McDowell wrote that "Arguments that our actions today may constitute a regulatory taking that requires compensation may have merit as well".

Also, the 5th Amendment and the 14th Amendment provide that no person shall be deprived of property without due process of law. These apply to federal and state deprivations.

Possible Legal Challenges. There are more avenues for judicial review of the legality of this R&O than there are for most items adopted by the FCC. The most common route, a petition for review of a final order of the FCC, is just one possibility in this case.

Commissioner Robert McDowell's statement [PDF] highlights one argument that cable operators might raise in a petition for review. Cable operators might also assert the inapplicability of Section 628(b) to the contracts at issue, and other arguments.

Legalities aside, the FCC has considerable power over regulated entities, such as the phone and cable companies, in large part because they are repeat players before the FCC. However, apartment building owners around the country are not. Many are unaware of the FCC's existence. Nor will many be impressed by the FCC's self-congratulatory tributes to its own contributions to consumer choice and competition.

The legality of the FCC's R&O could be tested in private litigation. For example, a hypothetical apartment building owner has entered into a contract with a cable company to wire its building, the building is wired, and the contract contains an exclusivity clause that is now retroactively condemned by the FCC. A hypothetical second service provider then seeks access to the property. The building owner refuses. The second provider will of course assert the validity of the FCC's R&O. The FCC may, or may not, have leverage over the cable company. However, apartment building owners may file actions in state or federal courts for declaratory and injunctive relief.

The FCC's lawyers can remove most actions to the federal District Court. But even there, they would likely face a Judge who is a product of the local legal community, and who is likely to be familiar with real property and contract law, but not federal communications law.

As another example, a landlord might sue a cable company with whom it has contracted if the cable company asserts that any other provisions of the contract are abrogated along with the exclusivity provision. Also, tenants might sue their landlords. Also, class action lawyers might file actions on behalf of huge classes of tenants against apartment building owners and/or cable companies. The R&O's finding of "unfair method of competition or an unfair act" may entice class action firms to file private antitrust and unfair trade practices actions under federal or state law.

The FCC's prowess in evading legal challenges that are initiated by repeat players before the FCC may not prevent this R&O from being subjected to judicial review.

Matthew Berry and the FCC's Office of General Counsel (OGC) lawyers, and DOJ lawyers, will do their best, perhaps as intervenors or amici, to assert justiciability arguments, and to find procedural flaws, in efforts to obtain dismissal without reaching the merits. The task of defending this R&O on the merits would be daunting.

Commissioner McDowell wrote, "I wish the Commission's appellate lawyers the best of luck".

Competition. The FCC's release and the Commissioners assert that this R&O promotes "competition". The FCC's release also states that these exclusive contracts constitute "an unfair method of competition or an unfair act or practice under Section 628(b)".

The FCC is not following its more usual method of regulation -- ex ante promulgation of rules, followed by enforcement actions against violators of those rules. It is enforcing no rules.

This FCC action bears some some similarity to the DOJ's and FTC's antitrust model of regulation. Those agencies do not write ex ante rules. Rather, they engage in ex post application of competition law and economics on a case by case basis.

However, while the FCC has no rules, and is apparently applying competition analysis in an ex post fashion, it also states that its R&O contains "rules". Also, the FCC is not proceeding on a strictly case by case basis. The FCC release does not state that this R&O applies to specific enumerated contracts between named entities. Rather, it is industry wide, prophylactic, and both retroactive and prospective.

Also, the FCC currently lacks the ability to engage in economic analysis of competition in the manner of the DOJ and FTC. For example, the DOJ maintains about fifty economists with Ph.D.s, mostly from top economics departments, plus support staff. (See, speech by Thomas Barnett of October 31, 2007.) The FCC lacks this capacity to conduct economic analysis.

The FCC's does not disclose the nature of its economic analysis in its short release. Critics of this R&O might question this analysis when once the FCC has released the text of the R&O.

Competition exists in markets. Three fundamental components of markets are property rights, freedom to contract, and enforceability of those contracts in courts of law. This R&O attacks all three of these components of markets and competition. In this sense, it takes away from market participants the things that they use to compete in markets. It thereby harms competition.

Of course, exercises of antitrust authority involve limiting the property rights and contracts of companies that abuse market power. However, in this proceeding the entities whose property is being accessed by government order -- apartment building owners -- have no market power, either nationally, or in local communities. Neither suppliers nor consumers in markets for rental residential units are concentrated. Landlords compete for tenants.

On the other hand, the markets for broadband access and video are concentrated. However, the FCC and telephone companies argue that network neutrality mandates are not necessary because there is vigorous competition between telcos and cable. Is the argument of the FCC and telcos that there is vigorous competition for the purpose of assessing the need for network neutrality mandates, but that there is not vigorous competition for the purpose of assessing MDU mandates?

Government agencies, and the organized groups whose interests they vindicate, sometimes assert that they are promoting competition when they compel some market participants to share, make available, license, disclose, or open something that they have created or own. Their assertions sometimes are unfounded in economic analysis.

In this case, apartment building owners are being compelled to open their property. Cable companies, who may have invested in wiring some property only because of guarantees in contracts with the property owners, are now required to surrender those contract guarantees.

The incumbent telephone companies, who lobbied for this R&O, have long argued that the 1996 Act's requirement that they share their network elements with competing service providers creates only artificial competition. They oppose unbundling of telco broadband services, but now back MDU unbundling of broadband from bedrooms. They have also argued that government mandates for network neutrality or open access to their networks would not benefit competition. But now, the telecos and FCC, are arguing that abrogating contracts and compelling access is good for competition.

More FCC News

11/2. The Federal Communications Commission (FCC) released a Public Notice [3 pages in PDF] that announces revised procedures for the 700 MHz auction scheduled for January of 2008. This notice is titled "Auction of 700 MHz Band Licenses: Revised Procedure for Auctions 73 and 76: Additional Default Payment for D Block Set at Ten Percent of Winning Bid Amount; Disputed Issues in the Negotiation of Network Sharing Agreement". It is DA 07-4514 in AU Docket No. 07-157, WT Docket No. 06-150, and PS Docket No. 06-229. This revises the procedure announced in the FCC's Public Notice [122 pages in PDF] numbered DA 07-4171 and released on October 5, 2007. Also, on November 2, 2007, the FCC published a notice in the Federal Register that summarizes the October 5 Public Notice. See, Federal Register, November 2, 2007, Vol. 72, No. 212, at Pages 62359-62392.

11/2. The Federal Communications Commission (FCC) published a notice in the Federal Register that announces, summarizes, recites and sets the effective date (December 3, 2007) for, its rule changes regarding the Emergency Alert System (EAS). The FCC adopted its Second Report and Order on May 31, 2007, and released text [75 pages in PDF] on July 12, 2007. It is FCC 07-109 in EB Docket No. 04-296. See, notice in the Federal Register, November 2, 2007, Vol. 72, No. 212, at Pages 62123-62135. The FCC also published a second notice in the Federal Register that sets comments deadlines for the NPRM portion of this item. Initial comments are due by December 3, 2007. Reply comments are due by December 17, 2007. See, Federal Register, November 2, 2007, Vol. 72, No. 212, at Pages 62195-62198. See also, story titled "FCC Expands EAS Program" in TLJ Daily E-Mail Alert No. 1,589, May 31, 2007.

11/2. The Federal Communications Commission (FCC) released the agenda [PDF] for its November 8, 2007, event titled "Digital Television Consumer Education Workshop". The event will be at 10:00 AM - 1:15 PM at the FCC headquarters.

11/2. Federal Communications Commission (FCC) issued a release [PDF] that announces that it will hold yet another hearing on FCC regulation of the ownership of media. This one will be in Seattle, Washington, on February 9, 2007. Commissioners Michael Copps and Jonathan Adelstein issued a statement [PDF] on February 2: "A hearing with only five days notice is no nirvana for Seattle and the Pacific Northwest. This smells like mean spirit. Clearly, the rush is on to push media consolidation to a quick and ill-considered vote. It shows there is a preordained outcome. Pressure from the public and their elected representatives is ignored. With such short notice, many people will be shut out. We received notice of the hearing just moments before it was announced. This is outrageous and not how important media policy should be made."

10/31. The Federal Communications Commission (FCC) published a notice in the Federal Register that sets comment deadlines for its Notice of Proposed Rulemaking (NPRM) regarding its program access and retransmission consent rules and whether it may be appropriate to preclude the practice of programmers to tie desired programming with undesired programming. Initial comments are due by November 30, 2007. Reply comments are due by December 17, 2007. The FCC adopted this NPRM on September 11, 2007, and released the text [144 pages in PDF] on October 1, 2007. It is FCC 07-169, in MB Docket No. 07-198. See, Federal Register, October 31, 2007, Vol. 72, No. 210, at Pages 61590-61603. See also, story titled "FCC Adopts R&O and NPRM Regarding Program Access Rules" in TLJ Daily E-Mail Alert No. 1,640, September 17, 2007.

Washington Tech Calendar
New items are highlighted in red.
Monday, November 5

The House will meet at 12:30 PM for morning hour, and at 2:00 PM for legislative business. It will consider numerous non-technology related items under suspension of the rules. Votes will be postponed until at least 6:30 PM. See, Rep. Hoyer's schedule for the week of November 5, and schedule for Monday, November 5.

The Senate will meet at 2:00 PM for morning business. At 3:00 PM it will begin consideration of Begin consideration of HR 2419 [LOC | WW], the "Farm, Nutrition, and Bioenergy Act of 2007".

2:00 - 3:30 PM. The U.S. Chamber of Commerce's Coalition Against Counterfeiting and Piracy (CACP) will meet. For more information, contact counterfeiting at uschamber dot com or 202-463-5500. Location: U.S. Chamber, 1615 H St., NW.

2:00 PM. Deadline for petitioner (Quanta Computer) to file its merits brief with the Supreme Court of the US (SCUS) in Quanta Computer v. LG Electronics, a patent infringement case. See, story titled "Supreme Court Grants Certiorari in Patent Exhaustion Case" in TLJ Daily E-Mail Alert No. 1,647, September 27, 2007.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Further Notice of Proposed Rulemaking (FNPRM) regarding potential interference unique to the reverse band operating environment in the 17/24 GHz BSS. This FNPRM is FCC 07-76 in IB Docket No. 06-123. See, notice in the Federal Register, August 22, 2007, Vol. 72, No. 162, at Pages 46939-46949.

Tuesday, November 6

Election day.

The House will meet at 9:00 AM for morning hour, and at 10:00&nbsb;AM for legislative business. See, Rep. Hoyer's schedule for the week of November 5.

10:00 AM. The Senate Judiciary Committee (SJC) will meet to consider the nomination of Michael Mukasey to be the Attorney General. See, notice. Location: Room 226, Dirksen Building.

10:00 AM. The House Oversight and Government Reform Committee's (HOGRC) Subcommittee Federal Workforce, Postal Service, and the District of Columbia will hold a hearing titled "Telework: Breaking New Ground". Location: Room 2154, Rayburn Building.

2:00 PM. The House Homeland Security Committee's (HHSC) Subcommittee on Intelligence, Information Sharing and Terrorism Risk Assessment will hold a hearing titled "Using the Web as a Weapon: the Internet as a Tool for Violent Radicalization and Homegrown Terrorism". The witnesses will be Bruce Hoffman (Georgetown University), Rita Katz (Search for International Terrorist Entities Institute), Parry Aftab, Mark Wietzman (Simon Wiesenthal Center), Yigal Carmon (Middle East Media Research Institute). The hearing will be webcast by the HHSC. See, notice. For more information, contact Dena Graziano or Adam Comis at 202-225-9978. Location: Room 311, Canon Building.

2:30 - 4:30 PM. The House Science Committee's (HSC) Subcommittee on Technology and Innovation will hold a hearing titled "The Globalization of R&D and Innovation, Pt. IV: Implications for the Science and Engineering Workforce". The witnesses will be Paul Kostek (IEEE-USA), Charles McMillion (MBG Information Services), Harold Salzman (The Urban Institute), and Michael Teitelbaum (Alfred P. Sloan Foundation). The hearing will be webcast by the HSC. Location: Room 2318, Rayburn Building.

3:00 PM. The House Rules Committee will meet to adopt a rule for consideration of HR 3688 [LOC | WW], the "United States-Peru Trade Promotion Agreement Implementation Act". Location: Room 313, Capitol Building.

Wednesday, November 7

The House will meet at 10:00 AM, and immediately recess. At 10:45 AM the House and Senate will hear Nicolas Sarkozy, President of France. Then, the House may consider HR 3688 [LOC | WW], the "United States-Peru Trade Promotion Agreement Implementation Act". See, Rep. Hoyer's schedule for the week of November 5.

9:00 - 10:15 AM. The Alliance for Public Technology (APT) will host an event titled "Broadband Initiatives: Enhancing Lives & Transforming Communities". 19 case studies will be released. RSVP to rsvp at apt dot org or 202-263-2970. A light breakfast will be served. Location: Room B340, Rayburn Building.

9:00 AM. Day one of a two day partially closed meeting of the Department of Commerce's (DOC) Bureau of Industry and Security's (BIS) Information Systems Technical Advisory Committee (ISTAC). The November 7 portion of the meeting is open. The agenda includes "SEMI Comments: China Rule, VEU, Industry Forecast", "Industry Encryption Presentation", "Range and Standards", "History of Encryption Hardware", "MIMO Technology Overview", "Discussion: Draft Wassenaar Proposals for 2008", and "Discussion: Comprehensive Review of Commerce Control List". (VEU is an acronym for the BIS's validated end user program. See, SEMI's web page on VEU and the PRC. MIMO is an acronym for multiple input multiple output, a 4G antenna technology that is used both in transmission and receiver equipment for wireless radio communication, for VOIP and other applications. See, Nortel's MIMO web page.) This portion of the meeting will also be teleconferenced. Submit applications to participate by teleconference to Yvette Springer at Yspringer at bis dot doc dot gov by October 31, 2007. See, notice in the Federal Register, October 23, 2007, Vol. 72, No. 204, at Page 60000. Location: Room 4830, Hoover Building, 14th St. between Constitution and Pennsylvania Avenues, NW.

10:00 AM. The Senate Judiciary Committee (SJC) will hold a hearing titled "Examining U.S. Government Enforcement of Intellectual Property Rights". Location: Room 226, Dirksen Building.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Matsushita Electric v. Samsung, App. Ct. No. 2007-1156. Location: Courtroom 203.

12:30 - 2:30 PM. The DC Bar Association will host a panel discussion titled "Trade, Investment and Politics". The speakers will include Mario Gustavo Guzmán Saldana (Ambassador of Bolivia to the US), Efrén Cocíos (Ambassador of Ecuador to Permanent Mission to the Organization of American States), Bernardo Álvarez (Ambassador of Venezuela to the US), Rep. Gregory Meeks, (D-NY), Everett Eissenstat (Assistant US Trade Representative for the Americas), Thomas Shannon (Assistant Secretary of State, Bureau of Western Hemisphere Affairs), and Omar Garcia (BG Consulting, Inc.). The price to attend ranges from $5 to $25. For more information, call 202-626-3463. See, notice. This event was previously scheduled for September 13, 2007. Location: Alston & Bird, 950 F St., NW.

1:30 - 4:00 PM. Day one of a three day meeting of the National Science Foundation's (NSF) Mathematical and Physical Sciences Advisory Committee. See, notice in the Federal Register, October 11, 2007, Vol. 72, No. 196, at Page 57966. Location: Room 375, NSF, 4201 Wilson Boulevard, Arlington, VA.

6:00 - 8:15 PM. The Federal Communications Bar Association (FCBA) will host at seminar titled "Drafting Consumer Contracts" The price to attend is ranges from $25 to $135. Reservations and cancellations are due by 12:00 NOON on November 5. See, registration form [PDF]. This event qualifies for CLE credits. Location: Arnold & Porter, 555 12th St., NW.

6:00 - 8:30 PM. The DC Bar Association will hold a closed event titled "A Practitioner's Guide to the New TTAB Rules". The speakers will include Gerald Rogers (USPTO, TTAB Judge), Linda McLeod (Finnegan Henderson, and former TTAB Judge), and Christianna Lewis (Finnegan Henderson). The price to attend ranges from $80 to $115. For more information, call 202-626-3488. See, notice. Location: DC Bar Conference Center, B-1 Level, 1250 H St., NW.

Deadline to submit comments to the Federal Trade Commission (FTC) regarding the overall costs, benefits, and regulatory and economic impact of its Mail or Telephone Order Merchandise Rule (MTOR). See, notice in the Federal Register, September 11, 2007, Vol. 72, No. 175, at Pages 51728-51730.

Thursday, November 8

The House will meet at 10:00 AM for legislative business. See, Rep. Hoyer's schedule for the week of November 5.

8:00 AM - 6:00 PM. Day two of a three day meeting of the National Science Foundation's (NSF) Mathematical and Physical Sciences Advisory Committee. See, notice in the Federal Register, October 11, 2007, Vol. 72, No. 196, at Page 57966. Location: Room 375, NSF, 4201 Wilson Boulevard, Arlington, VA.

9:00 AM. Day two of a two day partially closed meeting of the Department of Commerce's (DOC) Bureau of Industry and Security's (BIS) Information Systems Technical Advisory Committee (ISTAC). The November 8 portion of the meeting is closed to the public. The agenda is secret. See, notice in the Federal Register, October 23, 2007, Vol. 72, No. 204, at Page 60000. Location: Room 4884, Hoover Building, 14th St. between Constitution and Pennsylvania Avenues, NW.

10:00 AM. The Senate Commerce Committee (SCC) will hold a hearing titled "Localism, Diversity and Media Ownership". See, notice. Location: Room 253, Russell Building.

10:00 AM. The Senate Judiciary Committee (SJC) may hold an executive business meeting. The agenda includes consideration of S 2248 [LOC | WW], the "Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2007", and S 352 [LOC | WW], the "Sunshine in the Courtroom Act of 2007". The agenda also includes consideration of several judicial nominees: Joseph Laplante (to be a Judge of the U.S. District Court for the District of New Hampshire), Reed O'Connor (U.S.D.C., Northern District of Texas, Dallas Division), Thomas Schroeder (U.S.D.C., Middle District of North Carolina), and Amul Thapar (U.S.D.C., Eastern District of Kentucky). See, agenda. The SJC rarely follows its published agenda. Location: Room 226, Dirksen Building.

10:00 AM - 1:15 PM. The Federal Communications Commission (FCC) will host an event titled "Digital Television Consumer Education Workshop". See, notice [PDF]. The event will be webcast by the FCC. Location: FCC, Commission Meeting Room, 445 12th St., SW.

2:00 - 3:00 PM. The President's National Security Telecommunications Advisory Committee (NSTAC) will meet by teleconference. The meeting will be partially closed. The agenda for the open portion of the meeting includes "an overview of NSTAC's investigation of identity management and emergency communications interoperability for national security and emergency preparedness communications". The agenda of the closed portion of the meeting includes a discussions and votes on an "investigation of the global network infrastructure environment" and an "investigation of commercial systems' reliance on global positioning systems for network timing synchronization". See, notice in the Federal Register, October 12, 2007, Vol. 72, No. 197, at Pages 58110-58111.

6:00 - 9:15 PM. The DC Bar Association will host a continuing legal education (CLE) program titled "How to Litigate a Patent Infringement Case". The speakers will be Patrick Coyne and Jerry Ivey (Finnegan Henderson). The price to attend ranges from $80 to $115. For more information, call 202-626-3488. See, notice. Location: DC Bar Conference Center, B-1 Level, 1250 H St., NW.

Deadline to submit comments to the Office of the U.S. Trade Representative (USTR) to assist it in preparing its annual report titled "National Trade Estimate Report on Foreign Trade Barriers". See, notice in the Federal Register, August 29, 2007, Vol. 72, No. 167, at Pages 49745-49746.

Friday, November 9

The House will meet at 9:00 AM for legislative business. See, Rep. Hoyer's schedule for the week of November 5.

8:00 AM - 3:00 PM. Day three of a three day meeting of the National Science Foundation's (NSF) Mathematical and Physical Sciences Advisory Committee. See, notice in the Federal Register, October 11, 2007, Vol. 72, No. 196, at Page 57966. Location: Room 1235, NSF, 4201 Wilson Boulevard, Arlington, VA.

9:00 AM - 6:00 PM. American Lawyer Media will host a program titled "Innovations in IP Litigation". The price to attend is $450. For more information, contact Sandy Chan at 212-967-0095 ext. 224 or sachan at alm dot com. See, notice. Location: Westin Washington DC City Center, 1400 M St., NW.

Deadline to submit comments to the National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) regarding its SP 800-61 Revision 1 [147 pages in PDF] titled "Draft Computer Security Incident Handling Guide".

Monday, November 12

Veteran's Day observed.

The Federal Communications Commission (FCC) and other federal offices will be closed. See, Office of Personnel Management's (OPM) list of federal holidays and 5 U.S.C. § 6103.

2:00 PM. Deadline to file amicus briefs on the merits in support of the petitioner Quanta Computer (or in support to neither party) with the Supreme Court of the US (SCUS) in Quanta Computer v. LG Electronics, a patent infringement case. See, story titled "Supreme Court Grants Certiorari in Patent Exhaustion Case" in TLJ Daily E-Mail Alert No. 1,647, September 27, 2007.

Day one of a five day closed meeting of the National Institute of Standards and Technology's (NIST) Judges Panel of the Malcolm Baldrige National Quality Award. See, notice in the Federal Register, October 23, 2007, Vol. 72, No. 204, at Page 60004. Location: NIST, Administration Building, Lecture Room E, Gaithersburg, MD.

Free Press Files Complaint with FCC Alleging that Comcast Is Violating 2005 Policy Statement

11/1. The Free Press (FP) and Public Knowledge (PK) filed with the Federal Communications Commission (FCC) a document [48 pages in PDF] captioned "Formal Complaint of Free Press and Public Knowledge Against Comcast Corporation For Secretly Degrading Peer-to-Peer Applications".

Marvin Ammori and Julie Schwartz of the Free Press signed the complaint. The document includes six declarations in support of the complaint by Gigi Sohn and Jeffrey Pearlman (both of PK), Ben Scott and Adam Lynn (both of FP), Peter Eckersley (Electronic Frontier Foundation), and Robert Michael Topolski (who identifies no employment or affiliation).

The complaint alleges that Comcast is "degrading peer-to-peer protocols" by inserting forged reset packets into communications between peers in peer to peer (P2P) communications that terminate those communications. This, the complaint alleges, interferes with Comcast's subscribers use of applications like BitTorrent.

The complaint alleges that this violates a FCC 2005 Policy Statement.

The complaint requests an immediate ex parte preliminary injunction to "forbid from degrading any applications". It also requests a permanent injunction. Also, the complaint requests that the FCC fine Comcast $195,000 per "subscriber whose service was degraded".

The FP and PK are interest groups that advocate government imposed network neutrality mandates.

FCC Policy Statement. The FCC adopted its "Policy Statement" on August 5, 2005. See also, story titled "FCC Adopts a Policy Statement Regarding Network Neutrality" in TLJ Daily E-Mail Alert No. 1,190, August 8, 2005. The FCC released the text [3 pages in PDF] of this on September 23, 2007. See, story titled "FCC Releases Policy Statement Regarding Internet Regulation" in TLJ Daily E-Mail Alert No. 1,221, September 26, 2005.

This Policy Statement provides, in part, that "To encourage broadband deployment and preserve and promote the open and interconnected nature of the public Internet, consumers are entitled to access the lawful Internet content of their choice ... to run applications and use services of their choice, subject to the needs of law enforcement ... to connect their choice of legal devices that do not harm the network ... to competition among network providers, application and service providers, and content providers." (Footnotes omitted.)

The Policy Statement adds that "The principles we adopt are subject to reasonable network management."

This Policy Statement is FCC 05-151.

The FCC has not stated what a policy statement is, what its consequences are, or whether it creates any administrative enforcement procedure. Neither the Communications Act nor the Administrative Procedure Act contemplate regulation by policy statement. The FCC has promulgated no rules to implement this policy statement.

The House and Senate worked on broad telecommunications reform legislation in the 109th Congress. The House passed a bill on June 8, 2007, which provided that the FCC is authorized to enforce the 2005 policy statement. However, the Senate did not pass this bill. See, HR 5252, the "Communications Opportunity, Promotion, and Enhancement Act of 2006" or COPE Act. See also, story titled "House Approves COPE Act, Without Network Neutrality Amendment" in TLJ Daily E-Mail Alert No. 1,388, June 9, 2007. And see, story titled "Amendment by Amendment Summary of Full Committee Mark Up of COPE Act" in TLJ Daily E-Mail Alert No. 1,360, April 28, 2006.

Summary of Complaint. The complaint alleges that "Comcast is violating the FCC’s Internet Policy Statement".

"Comcast is harming consumers", it alleges, "by violating three of the Policy Statement’s four principles", "to run applications and use services of their choice", "to access the lawful Internet content of their choice", and "to competition among network providers".

It alleges that "Comcast undermines users' ability to run applications and use services of their choice. Degrading applications that consumers want to use blocks consumers’ ability to ``run applications´´ of their choice. Consumers cannot properly run BitTorrent, Lotus Notes, FTP, and Gnutella because of Comcast’s actions." (Footnote omitted.)

It continues that "Comcast is harming consumers by undermining several valuable applications and services that consumers would choose to use. The FTP protocol is one of the Internet’s oldest protocols for sharing information. Lotus Notes provides telecommuters and businesses with email, calendar, and file-sharing services. BitTorrent also provides enormous, and increasing, consumer benefits."

The complaint provides this explanation of how BitTorrent works. "BitTorrent enables content consumers to quickly download large files. Cable and phone companies provide ``high-speed´´ Internet service that permits users to download content at far higher speeds than users can upload content. So, ordinarily, when one user downloads information from another user, as with peer-to-peer applications, the download cannot go faster than the uploader’s slower upload speed. For example, though the downloader might be able to receive content at 6 Mbps, the upload is providing the content at 200 Kbps. BitTorrent, however, enables the downloader to download pieces of a larger file from many different users simultaneously." (Footnote omitted.)

The complaint was filed with six declarations in support. One of these contains detailed allegations regarding how Comcast interferes with P2P applications such as BitTorrent.

Robert Michael Topolski wrote in his declaration in support that he is a software quality engineer who has been awarded Most Valuable Professional status in the area of networking by Microsoft.

He wrote that based on his research and tests he concludes that "Comcast is utilizing a device produced by Sandvine, Inc., in order to selectively cause disconnections on several P2P networks including Bittorrent, eDonkey, and Gnutella." He added that he has not tested "disconnections are affecting client/server protocols including FTP and Lotus Notes".

Sandvine states in its web site that "Sandvine's Policy Traffic Switch (PTS) Portfolio helps service providers to better profit from application traffic. Our Deep Packet Inspection-Based Policy Solutions address key challenges such as managing bandwidth-intensive traffic, controlling malicious threats, enabling new services and identifying application quality trends. These subscriber-friendly solutions are deployed on a single intelligent platform to simplify the network architecture and ensure a fast return on investment."

Topolski explained that "The P2P protocols I tested utilize the underlying Transmission Control Protocol (TCP). TCP's behavior is defined by the Internet standard document RFC 893. In a normal Internet connection TCP, connections between users can be terminated by one user sending the other a packet which contains either FIN or RST flag. A FIN packet indicates that the user is done with the connection, and after it is sent and received, both users close the connection. An RST packet is typically sent when an error (such as a computer crash) occurs and one user's computer no longer recognizes the connection the other user is attempting to communicate on. According to the RFC, when this happens, ``the data arriving ... is unacceptable because no such connection exists, so [the disconnected user] sends a RST. The RST is acceptable so [the other user] processes it and aborts the connection.´´ Thus, a computer receiving an RST packet will assume the remote computer has experienced an error and will abort the connection." (Parentheses and brackets in original.)

He further alleged that "When conditions determined by Comcast are met, the Sandvine device injects a forged RST/abort packet to each user. This packet is designed to impersonate and simulate an error by the other user, and as a result, the TCP stacks which handle incoming data each interpret the packet as an error condition on the other side and both drop the connection."

He also alleged that "The Sandvine devices only terminate connections when the Comcast user is initiating an upload to another user, and always terminate the connection at the same point in the protocol, indicating that Comcast are analyzing some of the content of the data passing between the Comcast user and the peer user."

Finally, he wrote that "using a network analysis tool called WireShark, I have verified that the forged RST packets do not originate from and are not seen by the side which is supposed to have sent them. These tests also indicate that the Sandvine device which monitors a given user's connections and injects these packets is located at that user's Cable Modem Termination System (CMTS), which is the location where the user's cable connection, along with that of others users in the area is terminated and converted into an internet connection.

Without reference to any responsive document filed by Comcast, Ben Scott, Policy Director of the Free Press, stated in a release that "Comcast's defense is bogus".

Markham Erickson, head of the Open Internet Coalition (OIC), stated in a release that "The FCC’s response ... will show Congress and the American people whether the Commission’s promises are for real, or not. We hope the FCC will back up its policy statements with immediate action, and take concrete steps to protect the Internet from arbitrary and anti-consumer restrictions by Comcast and other network operators."

Section 1030. The complaint does not allege unauthorized access to a protected computer system in violation of 18 U.S.C. § 1030.

Subsection 1030(a)(5) provides, in part, that "Whoever ... knowingly causes the transmission of a program, information, code, or command, and as a result of such conduct, intentionally causes damage without authorization, to a protected computer ... or ... intentionally accesses a protected computer without authorization, and as a result of such conduct, causes damage; and ... caused ... loss to 1 or more persons during any 1-year period ... aggregating at least $5,000 in value ... shall be punished ..."

The term "damage" is defined broadly to mean "any impairment to the integrity or availability of data, a program, a system, or information".

Also, the term "loss" is defined broadly to include "consequential damages incurred because of interruption of service".

The Department of Justice (DOJ) has invoked Section 1030 to prosecute based upon interference with internet connections. See, USA v. Ryan James Fisher, U.S. District Court for the District of Utah, D.C. No. 2:06 CR 00080 PGC.

The DOJ's theory in that case was that one small ISP owner sent "programs, information, codes" to customers of a competing small ISP, and that this created interference with Wi-Fi internet access, and caused users to loose connections. See also, story titled "Section 1030 and Wi-Fi" in TLJ Daily E-Mail Alert No. 1,514, January 5, 2007, and DOJ release.

The DOJ asserted that the $5,000 loss threshold was met for several reasons, including internet users' loss of service.

Sen. Snowe Introduces LPFM Bills

11/1. Sen. Olympia Snowe (R-ME) introduced S 2297 [LOC | WW], a bill to require the Federal Communications Commission (FCC) to conduct an economic study on the impact that low-power FM stations will have on full-power commercial FM stations. It was referred to the Senate Commerce Committee (SCC) of which she is a member.

She also introduced S 2298 [LOC | WW], a bill to prohibit an applicant from obtaining a low-power FM license if an applicant has engaged in any manner in the unlicensed operation of any station in violation of section 301 of the Communications Act of 1934. It too was referred to the SCC.

Sen. Snowe stated in the Senate that a study is needed because "we don't have a comprehensive understanding as to the effect that low-power FM stations have on their full-power counterparts." See, Congressional Record, November 1, 2007, at Page S13701.

She noted that the FCC has studied interference by LPFM stations, but not the "economic impact the presence of low power stations would bring to the commercial licensees."

She added that "Volunteer, non-profit LPFM stations have found a niche but they also provide competition to full-power stations without having to incur the same costs as those commercial stations, particularly with the absence of licensing fees and employees' salaries. Most of us have raised serious concerns about the continued media consolidation that is occurring and negatively affecting localism and diversity. Part of the reason for this consolidation is because local, independently owned stations are seeing lower profit margins, which are making it more and more difficult to continue broadcasting."

She concluded that "The Government must ensure that by opening up low-power FM broadcast opportunities we are not causing any undue harm to the full-power radio stations".

She also spoke in the Senate about S 2298. She said that this bill "would preserve the Federal Communications Commission's right to deny a low-power FM license if the applicant has run afoul of basic, longstanding Federal restrictions on the transmission of radio waves, such as if the applicant has been previously fined for running an unlicensed ``pirate´´ radio station." See, Congressional Record, November 1, 2007, at Pages S13701-2.

She wrote that "My concern is by completely repealing section 632, which pending legislation proposes, it hinders the ability of the FCC to prohibit applicants from receiving low-power FM licenses."

Senate Commerce Committee Approves Community Broadband Act

10/30. The Senate Commerce Committee (SCC) amended and approved S 1853 [LOC | WW], the "Community Broadband Act of 2007".

This bill pertains to municipal projects to provide broadband services to the public. (Actually, the bill covers any "advanced telecommunications capability".)

The SCC stated in a release that "This legislation would allow municipalities to help fill the void in broadband access and enhance public safety development while bringing broadband services to their residents."

The SCC approved two amendments [PDF], and then approved the bill as amended. The amendments pertain to the consequences of a failure due to bankruptcy of a government provider of services.

This bill first provides government entities may provide broadband services. It provides  that "No State or local government statute, regulation, or other State or local government legal requirement may prohibit, or have the effect of prohibiting, any public provider from providing advanced telecommunications capability, or services using advanced telecommunications capability, to any person or any public or private entity."

Second, the bill prohibits such government entities from discriminating against private sector providers. It provides that "To the extent any public provider regulates competing providers of advanced telecommunications capability or services, such public provider shall apply its ordinances and rules and policies, including those relating to the use of public rights-of-way, permitting, performance bonding, and reporting, without discrimination in favor of itself or any other provider of advanced telecommunications capability or service that such provider owns or with which such provider is affiliated."

Third, the bill also provides that the government must provide the public with notice and an opportunity to be heard before it provides service to the public.

Sen. Frank Lautenberg (D-NJ) introduced this bill on July 23, 2007.

Both the House and SCC telecommunications reform bills in the 109th Congress included related language. However, neither bill became law.

More Capitol Hill News

11/3. On November 3, 2007, Sen. Charles Schumer (D-NY), who is member of the Senate Judiciary Committee (SJC), wrote in a statement that "I will support Judge Michael Mukasey for attorney general." The SJC has scheduled a vote on the nomination for Tuesday, November 6, 2007. On November 2, Sen. Patrick Leahy (D-VT), the Chairman of the SJC, announced that he will vote against the nomination. See, statement. Sen. Dianne Feinstein (D-CA), also a member of the SJC, stated back on October 26, 2007, that "I will vote to confirm Michael Mukasey to be our next Attorney General." See, statement.

11/2. Sen. Robert Byrd (D-WV), the Chairman of the Senate Appropriations Committee (SAC), published a notice in the Congressional Record that announces revised subcommittee assignments for the SAC's subcommittees. The members of the Commerce Justice, Science and Related Agencies Subcommittee, which handles appropriations for many of the federal technology related agencies, remains unchanged. The members are Barbara Mikulski, Daniel Inouye, Patrick Leahy, Herb Kohl, Tom Harkin, Byron Dorgan, Dianne Feinstein, Jack Reed, Frank Lautenberg, Richard Shelby, Judd Gregg, Ted Stevens, Pete Domenici, Mitch McConnell, Kay Hutchison, Sam Brownback, and Lamar Alexander. This notice is published at Congressional Record, November 2, 2007, at Page S13723. It updates the notice published at Congressional Record, February 27, 2007, at Page S2253.

10/30. Several Republican Representatives spoke in the House in support of making the research and development (R&D) tax credit permanent. The current R&D tax credit expires on December 31, 2007. Bills such as HR 2138 [LOC | WW], the "Investment in America Act of 2007 ", would make the R&D tax credit permanent, and repeal the alternative incremental credit. Rep. Pete Roskam (R-IL) stated that "At a time of increasing globalization, America's prosperity depends more than ever on its capacity to innovate." He said that "significant economic benefits that flow from R&D activities". Rep. Tim Walberg (R-MI) said that "This legislation would keep high-tech, high-paying jobs in America by maintaining important incentives and enable American companies to grow, become more competitive globally, and ultimately result in additional high-paying American jobs." Rep. Adrian Smith (R-NE) said that "We are the strongest Nation on Earth, in large part because of the innovation inspired through research and development. This has been a driving force through our history, leading us to discoveries which add convenience, comfort and productivity to our lives. ... In our increasingly competitive global economy, it is essential we ensure there is a permanent, meaningful incentive for all businesses to invest in research and development. See, Congressional Record, October 30, 2007, at Pages H12157-9.

About Tech Law Journal

Tech Law Journal publishes a free access web site and subscription e-mail alert. The basic rate for a subscription to the TLJ Daily E-Mail Alert is $250 per year. However, there are discounts for subscribers with multiple recipients. Free one month trial subscriptions are available. Also, free subscriptions are available for journalists, federal elected officials, and employees of the Congress, courts, and executive branch. The TLJ web site is free access. However, copies of the TLJ Daily E-Mail Alert are not published in the web site until one month after writing. See, subscription information page.

Contact: 202-364-8882.
P.O. Box 4851, Washington DC, 20008.

Privacy Policy
Notices & Disclaimers
Copyright 1998-2007 David Carney, dba Tech Law Journal. All rights reserved.