3/19. Federal Communications Commission (FCC) adopted, but did not release, a Fifth Report regarding the "availability of advanced telecommunications capability to all Americans". These reports are required by Section 706 of the Telecommunications Act of 1996.

The FCC issued a short release [PDF] that states that this report finds that "broadband services are currently being deployed to all Americans in a reasonable and timely fashion".

Commissioner Jonathan Adelstein dissented. He wrote in his prepared statement [PDF] that the report "fails to set out an adequate basis for concluding that broadband is being deployed in a reasonable and timely basis to all Americans, which is our directive under the statute. Instead, this report repeats past shortcomings, relies on faulty data, and fails to present a clear picture of broadband in America."

Commissioner Michael Copps also dissented. See, prepared statement [PDF].

This report is FCC 08-88 in Docket No. 07-45.

3/19. The Federal Communications Commission (FCC) adopted, but did not release, a Report and Order (R&O) and Further Notice of Proposed Rulemaking (FNPRM) regarding collection of broadband subscription and availability data.

The FCC issued a short release [PDF] that describes this item. It states that the FCC will "Expand the number of broadband reporting speed tiers to capture more precise information about upload and download broadband speeds in the marketplace", "Require broadband providers to report numbers of broadband subscribers by Census Tract, broken down by speed tier and technology type", and "Improve the accuracy of information the Commission gathers about mobile wireless broadband deployment".

FCC Chairman Kevin Martin wrote in his prepared statement [PDF] that pursuant to this order, the FCC will "collect dramatically improved data on broadband services", and that this "data will enable us to better identify and analyze the deployment of broadband throughout the nation".

Commissioner Michael Copps wrote in his prepared statement [PDF] that "it is truly shocking that we still rely on an absurdly dated definition of broadband speed and a 5-digit ZIP code methodology". He wrote that the just adopted order "shows we're finally getting serious about broadband data-gathering".

Robert McDowell (at left), the most free market oriented of the Commissioners, dissented. He wrote in his prepared statement [PDF] that "the majority is playing with fire by attaching subjective and, perhaps, misleading terminology and definitions to various speeds. In short, what started out with a sleepy bureaucratic Order may end up being a change of tectonic proportions. The majority has not thought through the unintended consequences of its actions today."

McDowell continued that "Instead of allowing consumers to determine what is a sufficient speed for their desired purposes, the government is drawing an arbitrary line that may favor some technologies that are currently considered ``broadband.´´ While the concept of what is ``broadband´´ should constantly improve and evolve, these decisions are best left to consumers and the marketplace, not unelected bureaucrats. It certainly should not be a political decision. I fear that what the majority has wrought this morning may very well come back to haunt us."

This item is FCC 08-89 in WC Docket No. 07-38.

3/19. The Federal Communications Commission (FCC) adopted, but did not release, a Report and Order (R&O) regarding contracts for the provision of telecommunications services in apartment buildings. The FCC released only and brief news release [PDF].

The FCC's release does not disclose what statute authorizes the FCC to take this action. Nor does the FCC's release disclose whether or not the FCC has written the R&O that it just adopted. Nor does it state when the FCC will release the R&O. All five Commissioners released self-congratulatory appraisals of their regulatory beneficence.

The FCC release states that this R&O "banned carriers from entering into exclusive contracts to provide telecommunications services in residential apartment buildings, and prohibited enforcement of existing contracts that contain exclusivity provisions".

FCC Chairman Kevin Martin wrote in his prepared statement [PDF] that "This action follows in the footsteps of our recent Order to prohibit similar exclusive arrangements for video services offered in apartment buildings" and provides "regulatory parity by applying a consistent regulatory framework across platforms".

On October 31, 2007, the FCC adopted an order that abrogates contracts between property owners and some, but not all, video services providers. See also, stories titled "FCC Adopts R&O Abrogating Contracts Between MDU Owners and Cable Companies" and "Commentary on FCC's R&O Regarding MDU Owners and Cable Companies" in TLJ Daily E-Mail Alert No. 1,669, November 5, 2007.

Enforcement of contracts by property owners is a matter of state law and jurisdiction. This order regulates the activities of real estate owners, and abrogates existing contracts.

Legal challenges brought by both property owners and cable companies to the FCC's October order are pending in the Court of Appeals. See, NCTA v. FCC and National Multi-Housing Counsel, et al. v. FCC, U.S. Court of Appeals for the District of Columbia, App. Ct. Nos. 08-1016 and 08-1017. Property owners may challenge this order also.

The FCC has not released the just adopted R&O. The FCC thereby obtains the effect of delaying judicial review of the R&O.

The FCC's release asserts that "these exclusive agreements between carriers and building owners hurt consumers and harm competition, with little evidence of countervailing benefits"

In contrast, Jim Arbury, of the National Multi Housing Council (NMHC) / National Apartment Association (NAA) Joint Legislative Program, asserted in a release that "Apartment owners have traditionally used exclusive access contracts to force telecommunications providers to lower their prices and improve their service offerings. By taking this bargaining tool away from owners, the FCC has essentially removed a key incentive these firms had to negotiate with apartment owners. The only losers in this decision, ironically, are likely to be the very consumers the FCC purports to want to serve."

He added that "This is just the latest in a series of misguided attempts by the FCC to manufacture competition through regulation instead of forcing the telecom firms to compete for new business. And they reveal the FCC's continued lack of understanding about how the multifamily telecommunications market actually works."

Commissioner Robert McDowell wrote in his prepared statement [PDF] that "I am hopeful that this decision will spur more competition among telecommunications providers".

Commissioner Michael Copps wrote in his prepared statement [PDF] that "the basic point is to offer people living in multiple tenant environments some of the same consumer benefits -- competition and choices -- as single-family homeowners."

Commissioner Jonathan Adelstein wrote in his prepared statement [PDF] that "By finding that exclusive access arrangements amount to an unreasonable practice under the Communications Act, we remove a potential barrier that could hinder new entrants from offering telecommunications services to residential consumers" in multi tenant environments.

See also, Commissioner Deborah Tate's prepared statement [PDF].

Neither the FCC release, nor the statement of Commissioners, address either bulk billing and exclusive marketing arrangements.

The FCC's release states that the just adopted R&O is FCC 08-87 in Docket No. 99-217. It is a Wireline Competition Bureau (WCB) item. The October 2007 cable R&O and FNPRM is FCC 07-189 in MB Docket No. 07-51.

3/18. The Federal Communications Commission (FCC) closed its Auction No. 73, which is also known as the 700 MHz auction, and the auction of spectrum to be vacated by broadcasters as part of the digital television (DTV) transition. The auction began on January 24, 2008, and included 261 rounds of bidding. The FCC announced that it raised $19.592 Billion.

FCC Commissioner Deborah Tate stated in a release [PDF] that this spectrum "will provide consumers with mobile broadband, mobile video, and other services not yet imagined. With its excellent propagation characteristics, this spectrum may be particularly useful in expanding advanced services in rural areas".

FCC Chairman Kevin Martin released a statement [PDF] that addresses auction revenues. He wrote that "The $19.592 billion in revenue raised in the 700 MHz auction is significantly more than raised in any past FCC auction. In comparison, the 2006 Advanced Wireless Service-1 (AWS-1) Auction raised $13.9 billion."

The FCC's Auction 66, completed in September of 2006, auctioned 90 MHz of spectrum in the 1710-1755 MHz and 2110-2155 MHz bands.

See, story titled "FCC Completes First Advanced Wireless Services Spectrum Auction" in TLJ Daily E-Mail Alert No. 1,454, September 21, 2006.

Martin continued that "The $19.592 billion generated by the auction nearly doubled congressional estimates of $10.2 billion. All other 68 auctions conducted by the FCC in the past 15 years collectively generated a total of only $19.1 billion in receipts."

"The proceeds generated from this auction will be transferred to the U.S. Treasury by June 30, 2008, and will be used to support public safety and digital television transition (DTV) initiatives." Martin's release also states that "Even with open platform and aggressive build-out obligations, each of these blocks sold for more than AWS-1 blocks with comparable bandwidth and license areas."

The FCC's band plan and service rules, announced on July 31, 2007, provided for the auction of 62 MHz for commercial use within the 698-806 MHz band. The FCC plan called for the auction of five blocks, designated A through E. These rules covered such things as reserve prices, build out requirements, and for the C block, open devices and open applications requirements. See also, story titled "FCC Adopts 700 MHz Band Order" in TLJ Daily E-Mail Alert No. 1,619, July 31, 2007.

The A Block is 12 MHz of paired spectrum (698-704 and 728-734 MHz). It was auctioned by Economic Areas (EA) in 176 licenses. (757-758 and 787-788, also in the A Block, have already been auctioned, but are being relocated.) The winning bids met the reserve price, and raised a total of $3.96 Billion.

The B Block is 12 MHz of paired spectrum (704-710 and 734-740 MHz). It was auctioned by Cellular Market Areas (CMA) in 734 licenses. (775-776 and 805-806, also in the B Block, have already been auctioned, but are being relocated.) The winning bids met the reserve price, and raised a total of $9.14 Billion.

The C Block is 22 MHz of paired spectrum (746-757 and 776-787). It was auctioned by Regional Economic Area Groupings (REAGs) in 12 licenses. (710-716 and  740-746, also in the C Block, have already been auctioned.) This spectrum is subject to open devices and applications requirements (ODAR). The winning bids met the reserve price, and raised a total of $4.75 Billion.

The D Block is 10 MHz of paired spectrum (758-763 and 788-793). It was to have been auctioned as one nationwide license, and subject to a Public/Private Partnership. That is, the plan was for a commercial licensee to build a nationwide broadband interoperable network for use by public safety entities. However, it would then have preemptible secondary access to the spectrum. (716-722, also in the D Block, has been auctioned.)

The E Block is 6 MHz of unpaired spectrum (722-728). It was auctioned by Economic Areas (EA) in 176 licenses. The winning bids met the reserve price, and raised a total of $1.27 Billion.

D Block. FCC Chairman Martin's statement states that "The 700 MHz Upper D Block of spectrum, which was dedicated to the creation of a Public Safety/Private Partnership to create a nationwide, interoperable network, did not receive a bid that met the $1.3 billion reserve price established for this block."

He continued that "I believe the Commission remains committed to ensuring that we work to solve public safety’s interoperability challenges. Because the reserve price for the D Block was not met in the 700 MHz auction, the FCC is now evaluating its options for this spectrum."

Commissioner Tate wrote in her statement that "Now we must turn our attention to the important work of reviewing our options for the Upper 700 MHz D block, ten megahertz of spectrum that was designed to create a Public/Private Partnership to build a nationwide, interoperable broadband network that would improve public safety communications. In so doing, we must keep in mind that our nation’s first responders need advanced communications to provide their critical, lifesaving services to citizens all across this county. I am committed to working with Congress, my colleagues, the public safety community, and potential service providers to find a solution that meets our common goals."

Rep. John Dingell (D-MI), Chairman of the House Commerce Committee (HCC), stated in a release that "The construction of a nationwide, next-generation, interoperable broadband network for public safety is a crucial policy objective, and the need for such a network has not diminished. The Subcommittee on Telecommunications and the Internet will soon hold a hearing to consider this matter further, and I intend to work closely with the Commission, public safety, and industry as this process continues."

A collection of interest groups, including the Media Access Project (MAP), sent a letter [3 pages in PDF] to the FCC on March 19, 2008, to request that the FCC "not move immediately to reauction the D Block".

This collection of groups also includes the Public Knowledge, Consumers Union, Consumer Federation of America, New America Foundation, Free Press, and others.

They asked that the FCC "sever the D Block from auction 73, reveal the results of the auction, and conduct a thorough investigation into why the D Block failed to attract bidders. After conducting the investigation, the Commission should place any proposed changes or remedies, including a decision to award the D Block to the current bidder, on public notice."

They also asked that the FCC investigate "allegations surrounding a purported meeting between Frontline, its financial backers, and Morgan O'Brien of Cyren Call that may have had the effect of preventing Frontline from attracting needed capital and discouraging other bidders".

C Block. The C Block is subject to open devices and applications requirements (ODAR). Chairman wrote that "This auction provided an opportunity to have a significant effect on the next phase of wireless broadband innovation. With the open platform requirements on one-third of the spectrum, consumers will be able to use the wireless device of their choice on those networks and download whatever software or applications they want on it."

Martin added that "The open platform will help foster innovation on the edge of the network, while creating more choices and greater freedom for consumers to use the wireless devices and applications of their choice. A network more open to devices and applications can help ensure that the fruits of innovation on the edges of the network swiftly pass into the hands of consumers."

Rep. Dingell wrote that "I am pleased that the C Block exceeded its reserve price, triggering the pro-consumer open access rules. The Committee will watch closely to ensure that the successful bidder on the C Block remains committed to open access principles as they make use of this valuable public asset. I am hopeful that the auction also created opportunities for smaller and new entrants, which we'll learn when the FCC lifts the anti-collusion rules."

Rep. Dingell also wrote that "It is my hope that the Commission quickly closes out the auction and makes public information about winning bidders before coordinating with Congress on developing a thoughtful plan to re-auction the D block."

Steve Largent, head of the CTIA, stated in a release that "While the license winners of the 700 MHz auction may not yet be known, the true winners in this auction will be American consumers who once again will get to experience the innovation and other valuable benefits of a truly competitive wireless marketplace."

3/18. Rep. Ed Markey (D-MA), the Chairman of the House Commmerce Committee's (HCC) Subcommittee on Telecommunications and the Internet (STI), announced that the STI will hold a hearing that will address the results of the 700 MHz auction, which closed on March 18, 2008.

See, related story in this issue titled "FCC Closes 700 MHz Auction".

He stated in a release that "any new auction for the `D-block´ should be consistent with an overarching policy goal of advancing public safety objectives and ultimately achieving a state-of-the-art, broadband infrastructure for first responders. In developing a plan for a re-auction of the `D-block,´ the FCC should also take into account the auction results to gauge the level of new competition achieved."

Rep. Markey (at right) continued that "Policymakers should also analyze whether a need for a high reserve price continues to exist. Moreover, I believe we must fully review the nature and authority of the public safety spectrum trust and whether this model should be retained or modified, the length of the license term, the build-out requirements and schedule of benchmarks for such build-out, the opportunities for ensuring further openness in wireless markets, the penalties associated with failure to fulfill license conditions, and other issues."

He also stated that he is "eager to ascertain the extent to which new entrants have succeeded in obtaining licenses through this auction. Providing new opportunities for competitive entry into the wireless marketplace and offering consumers greater choice is a key objective of wireless policy and for this auction in particular."

Rep. Markey also praised the FCC's decision to auction the C Block with open devices and applications requirements (ODAR). He added that "forward to monitoring implementation of this provision, which holds much promise for fostering innovation and consumer choice".

Rep. Markey did not set the date or time of the hearing.

The House will not meet.

The Senate will not meet.

11:00 AM. Kyle McSlarrow, head of the National Cable & Telecommunications Association (NCTA), will hold a media teleconference. For more information, contact Brian Dietz at 202-222-2350.

Good Friday.

The House will not meet.

The Senate will not meet.

12:15 - 1:30 PM. The Federal Communications Bar Association's (FCBA) Engineering and Technical Practice Committee will host a brown bag lunch titled "Understanding Satellite Technology and Spectrum Allocation". The speakers will be Tom Tycz (Goldberg Godles) and Bob Nelson (Chief of the FCC's International Bureau's Satellite Division). For more information, contact Christy Hammond at chammond at wileyrein dot com or 202-719-7365. Location: Wiley Rein, 10th floor conference room, 1750 K St., NW.

5:00 PM. Deadline to submit comments to the Office of the U.S. Trade Representative (OUSTR) regarding its negotiation of "an anti-counterfeiting trade agreement to strengthen international cooperation, enforcement practices, and participants' legal frameworks to address counterfeiting and piracy". See, notice in the Federal Register, February 15, 2008, Vol. 73, No. 32, at Pages 8910-8911.

Easter.

The House will not meet.

The Senate will not meet.

Deadline to submit to the U.S. Patent and Trademark Office (USPTO) nominations of individuals to serve on the USPTO's National Medal of Technology and Innovation Nomination Evaluation Committee. See, notice in the Federal Register, January 24, 2008, Vol. 73, No. 16, at Page 4182.

Deadline to submit reply comments to the Copyright Office (CO) regarding its proposed rules changes regarding the recordation of notices of termination and related matters. The CO stated that these proposed changes "would communicate the Office's practices as to notices of termination that are untimely filed; clarify the fact that a notice of termination is not legally sufficient simply because it has been recorded; update the legibility requirements for all recorded documents, including notices of termination; make minor explanatory edits to the fee schedule for multiple titles within a document (adding notices of termination as an example); and create a new mailing address to which notices of termination should be sent." See, notice in the Federal Register, January 23, 2008, Vol. 73, No.15, at Pages 3898-3900.

EXTENDED TO APRIL 7. Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) regarding pole attachments and 47 U.S.C. § 224. The FCC adopted this NPRM on October 31, 2007, and released the text [40 pages in PDF] on November 20, 2007. This NPRM is FCC 07-187 in WC Docket No. 07-245. See, notice in the Federal Register, February 6, 2008, Vol. 73, No. 25, at Pages 6879-6888, and story titled "FCC Sets Comments Deadlines for Pole Attachments NPRM" in TLJ Daily E-Mail Alert No. 1,714, February 8, 2008. See, notice of extension in the Federal Register, February 12, 2008, Vol. 73, No. 29, at Page 8028.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) in its proceeding titled "In the Matter of Petition to Establish Procedural Requirements to Govern Proceedings for Forbearance Under Section 10 of the Communications Act of 1934, as Amended". The FCC adopted this NPRM on November 27, 2007, and released the text [25 pages in PDF] on November 30, 2007. This item is FCC 07-202 in WC Docket No. 07-267. See, notice in the Federal Register, February 6, 2008, Vol. 73, No. 25, at Pages 6888-6895, and story titled "FCC Sets Comments Deadlines for Forbearance NPRM" in TLJ Daily E-Mail Alert No. 1,714, February 8, 2008.

The House will not meet.

The Senate will not meet.

8:00 - 10:00 AM. The Federal Communications Bar Association (FCBA) will host a breakfast and tour of the Newseum. Prices vary. See, registration form [PDF]. Registrations and cancellations are due by 5:00 PM on March 17. Location: 555 Pennsylvania Ave., NW.

12:00 NOON - 2:00 PM. The Federal Communications Bar Association's (FCBA) FCC Enforcement and International Telecommunications Practice Committees will host a brown bag lunch titled "Birds, Back-up Power and RF Safety: New Challenges in Antenna and Cell Site Compliance and Enforcement". The speakers will be Jeff Steinberg (FCC's Wireless Bureau), Bob Curtis (RF Check), and Christopher Guttman-McCabe (CTIA). For more information, contact Julia Pontecorvo at jpontecorvo at harriswiltshire dot com. Location: Verizon, Suite 400 West, 5th floor, 1300 I St., NW.

1:00 - 4:00 PM. The Architectural and Transportation Barriers Compliance Board's (ATBCB) Telecommunications and Electronic and Information Technology Advisory Committee (TEITAC) will meet by conference call. See, notice in the Federal Register, January 24, 2008, Vol. 73, No. 16, at Page 4132.

The House will not meet.

The Senate will not meet.

12:15 - 1:30 PM. The Federal Communications Bar Association's (FCBA) HLS/Emergency Communications Committee will host a brown bag lunch titled "The 700 MHz D-block Auction: Where Do We Go From Here?" The speakers will be Jessica Zufolo (Medley Global Advisors). Location: Wilmer Hale, 1875 Pennsylvania Ave., NW.

6:30 - 8:00 PM. The Federal Communications Bar Association's (FCBA) Young Lawyers Committee will host an event titled "Happy Hour". For more information, contact: Stefanie Zalewski at sazalewski at mintz dot com, Chris Bjornson at crbjornson at mintz dot com, Angela Collins at afcollins at mintz dot com, Tarah Grant at tsgrant at hhlaw dot com. Location: Bar Louie, 701 7th St., NW.

Day one of a three day conference of the ABA Section of Antitrust Law. See, conference web site and brochure [3 MB in PDF]. Locations: JW Marriott Hotel and National Press Club.

Deadline to submit reply comments to the Copyright Office (CO) in response to its Notice of Inquiry (NOI) regarding the meaning of the Copyright Act's term "cable system", and issues related to the phantom signal phenomenon. See, notice in the Federal Register, December 12, 2007, Vol. 72, No. 238, at Pages 70529-70540, and story titled "Copyright Office Issues Notice of Inquiry Regarding Cable Systems" in TLJ Daily E-Mail Alert No. 1,688, December 13, 2007.

The House will not meet.

The Senate will not meet.

Day two of a three day conference of the ABA Section of Antitrust Law. See, conference web site and brochure [3 MB in PDF]. Locations: JW Marriott Hotel and National Press Club.

3/19. President Bush named Kenneth Wainstein Assistant to the President for Homeland Security and Counterterrorism.

As Assistant Attorney General in charge of the Department of Justice's (DOJ) National Security Division (NSD), he has represented the Bush administration before the Congress on Foreign Intelligence Surveillance Act (FISA) reform issues. He also worked on administration efforts to obtain extensions of the search and surveillance related provisions of the USA PATRIOT Act.

He has worked in various positions at the DOJ for almost 20 years. He has been the Federal Bureau of Investigation's (FBI) General Counsel and Chief of Staff. He has also been the U.S. Attorney for the District of Columbia.

President Bush stated in a White House release that "In his new role, Ken will coordinate our Nation's homeland security efforts to ensure that we continue to make progress on combating terrorism, securing our borders, and strengthening our emergency preparedness. I look forward to working with Ken to make America safer."

Attorney General Michael Mukasey praised Wainstein in a release.

3/19. President Bush announced his intent to nominate Michael Leiter to be Director of the National Counterterrorism Center in the Office of the Director of National Intelligence. See, White House release.

3/19. Federal Communications Commission (FCC) Chairman Kevin Martin named FCC Commissioner Deborah Tate Chair of the Joint Conference on Advanced Services. See, FCC release and Tate release.

3/19. The Federal Communications Commission (FCC) issued a release "soliciting nominations for state commission representatives from the National Association of Regulatory Utility Commissioners (NARUC) for seats on the Joint Conference".

3/19. President Bush gave a lengthy speech on the war on terrorism, without berating House Democrats for not passing a Foreign Intelligence Surveillance Act (FISA) reform bill that he supports.

3/19. The Federal Communications Commission (FCC) announced that it will hold another in a series of en banc hearings related to FCC Docket Nos. 07-52 and 08-7 on Thursday, April 17, 2007, at Stanford University. The Commission will hear from witnesses regarding "broadband network management practices and Internet-related issues". The FCC's notice does not identify the room, time or witnesses.

3/19. The U.S. District Court (NDCal) sentenced Judy N. Green to serve seven and one half years in prison for rigging bids and defrauding the Federal Communications Commission's (FCC) e-rate subsidy program. See, Department of Justice (DOJ) release.

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