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May 14, 2008, Alert No. 1,766.
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FCC Announces NPRM for D Block Auction

5/14. The Federal Communications Commission (FCC) adopted, but did not release, a Second Further Notice of Proposed Rulemaking (2ndFNPRM) regarding its reauction of spectrum following the failure of the D Block component of Auction No. 73.

The FCC issued a short release [2 pages in PDF] that describes this 2ndFNPRM. Each of the five Commissioners released statements.

The D Block is 10 megahertz of paired spectrum (758-763 MHz and 788-793 MHz). It was to have been auctioned in the 700 MHz auction as one nationwide license, 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. This licensee would then have had preemptible secondary access to the spectrum.

The FCC closed this auction on March 18, 2008. However, no bidder bid the reserve price for the D Block.

The public safety sector already has 97 megahertz of spectrum, much of which is unused. But, this sector has not developed an interoperable broadband network.

See also, stories titled:

  • "FCC Closes 700 MHz Auction" and "Rep. Markey Announces Hearing on 700 MHz Auction" in TLJ Daily E-Mail Alert No. 1,734, March 20, 2008.
  • "FCC Releases Details of 700 MHz Auction" and "FCC Will Not Offer D Block in Auction 76" in TLJ Daily E-Mail Alert No. 1,735, March 24, 2008.
  • "FCC Releases Inspector General's D Block Investigation Report" in TLJ Daily E-Mail Alert No. 1,755, April 28, 2008.

Commissioner Robert McDowell wrote in his statement [PDF] that "we tried something and failed at it. Now we're back to the drawing board".

Commissioner Jonathan Adelstein wrote in his statement [PDF] regarding the adoption of this 2ndFNPRM that "One of our greatest failings last time was that the expectations were not made clear upfront as to how the network would look and what would be asked of a private sector partner. We have since learned that potential private partners did not have the certainty they needed to raise or commit capital to the project."

Robert McDowellMcDowell (at left) added that "potential bidders were deterred by onerous build-out and service requirements that required the eventual licensee to incur massive costs in an atmosphere of extreme uncertainty regarding how many, if any, public safety entities might actually sign up as paying customers".

Several statements by Commissioners relate that they will continue to pursue a model based upon a privately built network, in partnership with public safety sector. For example, Commissioner Adelstein wrote that "the public-private partnership framework itself presents the only option available to us".

Nevertheless, the FCC's release describing the 2ndFNPRM asks "whether it remains in the public interest, following the 700 MHz Auction, to retain a Public/Private Partnership".

The FCC will pursue a multi-stage process. First, it is putting out the 2ndNPRM to pose a wide array of open ended questions. Then, the FCC will put together a set of proposed rules for the reauction of the D Block, and put out a 3rd NPRM to allow comment on its proposal. Sometime in this process, the FCC will hold an en banc hearing.

The FCC release states that the FCC now seeks "comment, ideas, and recommendations on how to revise the rules for the D Block".

FCC Chairman Kevin Martin wrote in his statement [PDF] that this 2ndFNPRM "is the first step in a renewed effort to provide our Nation's first responders with the broadband network they need and deserve".

He said that subsequent steps will be a "Third Further Notice of Proposed Rulemaking" (3rdFNPRM) and "an en banc hearing on these issues".

FCC Commissioner Michael Copps wrote in his statement [4 pages in PDF] the there will be "30 days for comments and 15 days for reply comments" on the 2ndFNPRM. He said that the 3rdFNPRM "will tee up very specific, proposed rules for the public-private sharing concept". He added that the "en banc" event will be "this summer".

Commissioner Copps also wrote that the best option "would have been to build a dedicated, federally-funded, interoperable national broadband network for first responders", but that "that option is no longer on the table".

The FCC release states that the FCC "seeks comment on how the D Block should be auctioned and licensed for commercial use if it were not required to be part of a Public/Private Partnership."

Commissioner Copps complained that this 2nd FNPRM solicits "comment on the possibility of stating, up-front, that if this auction does not yield a bidder it will be re-auctioned for commercial purposes".

Commissioner Deborah Tate suggested in her statement that "auctioning the D Block with no public/private partnership and minimal service rules might maximize the funds raised at auction, funds that then would be available for Congress -- if it so chooses -- to appropriate for public safety communications."

The FCC release enumerates many questions to be posed by the 2ndFNPRM. For example, the release states that the notice asks "whether only entities that provide public safety services, as defined in the Communications Act, are eligible to use the public safety spectrum portion of the shared network established by the Partnership".

The FCC release also states that comments are "sought on the technical requirements of the shared wireless broadband network".

Copps also asks the questions, "Is USF funding a possible answer? Or the Telecommunications Development Fund?" The FCC release is silent on these questions.

This 2ndFNPRM is FCC 08-128 in WT Docket No. 06-150 and PS Docket No. 06-229.

FCC Commissioner Tate Addresses Broadband Regulation

5/13. Federal Communications Commission (FCC) Commissioner Deborah Tate gave a speech [PDF] in Dallas, Texas, titled "Broadband to the Home: Broadband to America".

Deborah TateTate (at right) said that "When considering broadband penetration in the U.S. -- and what policymakers might do to promote more of it -- we should be mindful of the unique characteristics of the U.S. market. And when we compare the U.S. market to that of other countries, we should be mindful of how countries differ. For example, failure to properly consider differences in household size or population density across countries can confuse the analysis."

She added that "This is not to say that there is no role for policy."

She discussed her vague and undefined "regulatory philosophy" of the "light touch approach".

She said that the FCC has done many things in recent years to promote broadband, including classifying broadband DSL, BPL and wireless services as information services, changing the video franchising process, auctioning spectrum for wireless broadband services in the 700 MHz auction, and seeking more information about broadband deployment.

She also discussed current FCC proceedings that relate to network management practices of broadband service providers. She said that "As usage increases exponentially, the need for reasonable network management becomes clear. At the same time, such reasonable network management should be consistent with the Commissionís four principles of network neutrality, adopted in 2005."

She added, "We again should be clear that we are talking about legal content and applications." She elaborated that she is concerned about the ability of new technologies, such as peer to peer, "to promote some of the most harmful threats online -- child pornography, piracy, and privacy violations". She did not reference "copyright" or "infringement".

Copyright Office Terminates Phantom Signal Proceeding

5/7. The Copyright Office (CO) published a notice in the Federal Register announcing that it has terminated its proceeding regarding phantom signals.

On December 12, 2007, the CO published a notice in the Federal Register that announced, described, and set comment deadlines for, a Notice of Inquiry (NOI) regarding the meaning of the Copyright Act's term "cable system", and issues related to the phantom signal phenomenon.

The National Cable and Telecommunications Association (NCTA) had previously filed of a petition for rulemaking to address cable copyright royalty issues arising from the current definition of "cable system".

See, story titled "Copyright Office Issues Notice of Inquiry Regarding Cable Systems" in TLJ Daily E-Mail Alert No. 1,688, December 13, 2007.

The CO wrote in its May 7, 2008, notice that "After reviewing the record in this proceeding, the Copyright Office finds that it lacks the statutory authority to adopt rules sought by the cable industry. The Copyright Office, however, clarifies regulatory policy regarding the application of the 3.75% fee to phantom signals. This proceeding is terminated." See, Federal Register, May 7, 2008, Volume 73, Number 89, at Pages 25627-25633.

More News

5/13. Hewlett Packard (HP) announced in a release that HP and Electronic Data Systems (EDS) "have signed a definitive agreement under which HP will purchase EDS at a price of $25.00 per share". See also, EDS release.

5/12. The Competitive Enterprise Institute (CEI) published a short essay titled "Selling Out Online Advertising". The authors are the CEI's Wayne Crews and Ryan Radia. It concludes that "Hypothetical privacy infringements hardly justify a new law to regulate online advertising. The Internet can better serve customers as a realm with few top-down rules. Lawmakers cannot foresee the technical achievements of tomorrow, but laws can indeed stop pioneers in their tracks.

5/8. The Senate Commerce Committee (SCC) reported SJRes 28, which provides that "That Congress disapproves the rule submitted by the Federal Communications Commission relating to broadcast media ownership" and "such rule shall have no force or effect." The SCC approved this resolution, without amendment, on April 24, 2008. See, story titled "Senate Commerce Committee Approves Resolution Condemning FCC Media Ownership Order" in TLJ Daily E-Mail Alert No. 1,753, April 24, 2008. See, Senate Report No. 110-334.

4/30. Copyright Office (CO) published a notice in the Federal Register that announces, describes, recites, and sets the comment deadline for, its proposed rule changes regarding online group registration. The CO states that "this Notice proposes to amend further the current regulations governing group registration to require any applicant wishing to take advantage of group registration options to file the group claim electronically within the reengineered registration system". The deadline to submit comments is May 30, 2008. See, Federal Register, April 30, 2008, Vol. 73, No. 84, at Pages 23390-23393.

Supreme Court News

5/12. The Supreme Court denied certiorari in Apotex v. Abbott Laboratories, Sup. Ct. No. 07-912, a patent case. See, Orders List [15 pages in PDF] at page 4. This lets stand the October 11, 2007, opinion [20 pages in PDF] of the U.S. Court of Appeals (FedCir). See also, Supreme Court docket.

5/12. The Supreme Court denied certiorari in Panorama v. Zomba Enterprises, Sup. Ct. No. 07-1028, a copyright case involving karaoke. See, Orders List [15 pages in PDF] at page 4. This lets stand the June 26, 2007, opinion [PDF] of the U.S. Court of Appeals (6thCir), which affirmed the judgment of copyright infringement against a maker of karaoke CDs. See also, Supreme Court docket.

5/12. The Supreme Court denied certiorari in Rechanik v. Microsoft, Sup. Ct. No. 07-9250, a counterfeit software case. See, Orders List [15 pages in PDF] at page 12. This lets stand the October 2, 2007, opinion of the U.S. Court of Appeals (7thCir). See also, Supreme Court docket.

5/12. The Supreme Court dismissed a pro se petition for writ of mandamus in In Re Leo Stoller, Sup. Ct. No. 07-9592. See, Orders List [15 pages in PDF] at page 14. See also, Supreme Court docket. On January 7, 2008, the Supreme Court denied certiorari in Leo Stoller v. Google, Sup. Ct. No. 07-7043. See, Orders List [44 pages in PDF] at page 25.

Washington Tech Calendar
New items are highlighted in red.
Wednesday, May 14

The House will meet at 10:00 AM for legislative business. The House will consider several non-technology related matters. Rep. Hoyer's schedule for week of May 12, and schedule for May 14.

The Senate will meet at 9:30 AM for morning business. It will then resume consideration of HR 980 [LOC | WW], the "Public Safety Employer-Employee Cooperation Act of 2007", a bill to promote by federal regulation the unionization of public safety personnel of state and local governments.

9:30 AM. The Federal Communications Commission (FCC) may hold an event titled "Open Meeting". The agenda may include a Second Further Notice of Proposed Rulemaking related to the failed D Block component of Auction No. 73 (700 MHz auction), and a Fourth Memorandum Opinion and Order on narrowbanding. See, notice. Location: FCC, Commission Meeting Room, 445 12th St., SW.

RESCHEDULED FROM APRIL 21. 10:00 AM. The Securities and Exchange Commission (SEC) will meet. The agenda states that the SEC "will consider whether to propose amendments to provide for corporate financial statement information to be filed with the Commission in interactive data format, and a near- and long-term schedule therefor." See, notice of postponement. Location: SEC,  Room L-002, 100 F St., NE.

CANCELLED. 12:30 - 2:00 PM. The Progress & Freedom Foundation (PFF) will host an event titled "The Future of Broadcast Regulation: Markets or Mandates?".

6:00 PM. Deadline to submit Short Form Applications to participate in the Federal Communications Commission's (FCC) Auction No. 77. See also, notice in the Federal Register, May 8, 2008, Vol. 73, Number 90, at Pages 26112-26118.

Thursday, May 15

The House will meet at 10:00 AM for legislative business. Rep. Hoyer's schedule for week of May 12.

TIME CHANGE. 10:00 AM. The Senate Judiciary Committee (SJC) may hold an executive business meeting. The agenda includes consideration of S 2913 [LOC | WW], the "Shawn Bentley Orphan Works Act Of 2008", and S 1738 [LOC | WW], the "Combating Child Exploitation Act". S 2913 degrades the remedies available to copyright owners in civil actions for infringement of copyright. S 1738 would, among other things, provide for more Department of Justice (DOJ) regional computer forensic laboratories, and provide that "crimes against children" are predicate offenses for the issuance of wiretap orders to state law enforcement agencies. The agenda also includes consideration of the nomination of Steven Agee to be a Judge of the U.S. Court of Appeals (4thCir). See, notice. The SJC rarely follows its published agendas. All three of these items were held over from the May 8 meeting. Location: Room 226, Dirksen Building.

10:00 AM. The Senate Commerce Committee will hold a business meeting. The agenda includes consideration of of the nomination of Lily Claffee to be General Counsel of the Department of Commerce. See, notice. Location: Room 253, Russell Building.

10:00 AM - 5:00 PM. Day one of a two day meeting of the National Science Foundation's (NSF) Advisory Committee for Cyberinfrastructure. See, notice in the Federal Register, April 11, 2008, Vol. 73, No. 71, at Page 19904. Location: NSF, 4201 Wilson Blvd., Room 1235, Arlington, VA.

10:30 AM. The House Ways and Means Committee will meet to mark up HR __, a yet to be introduced bill that may be titled the "Energy and Tax Extenders Act of 2008". The research and development tax credit expired on December 31, 2007. Location: Room 1100, Longworth Building.

11:00 AM. The House Judiciary Committee's (HJC) Antitrust Task Force will hold a hearing on HR 5546 [LOC | WW], the "Credit Card Fair Fee Act of 2008". See, notice. Location: Room 2141, Rayburn Building.

12:00 NOON. The Heritage Foundation will host an event titled "U.S. International Broadcasting on the Frontlines of Freedom". The speakers will be James Glassman (Chairman of the Broadcasting Board of Governors) and Helle Dale (Heritage). Location: Heritage, 214 Massachusetts Ave., NE.

12:00 NOON - 1:30 PM. The Alliance for Public Technology (APT) and The Children's Partnership (TCP) will host a brown bag lunch titled "Information Technology Making a Difference in Children's Lives". The speakers will be Joy Howell, Laurie Lipper, and Ken Kelly. Location: APT, 10th floor, 919 18th St., NW.

2:00 PM. The Senate Committee on Foreign Relations will hold a hearing titled "U.S. China Relations in the Era of Globalization". The witnesses will be John Negroponte (Deputy Secretary of State), Richard Haass (Council on Foreign Relations), Kurt Campbell (Center for a New American Security), and Harry Harding (George Washington University). See, notice. Location: Room 419, Dirksen Building.

2:00 PM. The Senate Homeland Security and Governmental Affairs Committee's (SHSGAC) Subcommittee on Oversight of Government Management, the Federal Workforce, and the District of Columbia will hold a hearing titled "National Security Bureaucracy for Arms Control, Counterproliferation, and Nonproliferation Part I: The Role of the Department of State". See, notice. Location: Room 342, Dirksen Building.

Friday, May 16

Rep. Hoyer's schedule for week of May 12 states that "no votes are expected in the House".

8:00 AM - 12:00 NOON. Day two of a two day meeting of the National Science Foundation's (NSF) Advisory Committee for Cyberinfrastructure. See, notice in the Federal Register, April 11, 2008, Vol. 73, No. 71, at Page 19904. Location: NSF, 4201 Wilson Blvd., Room 1235, Arlington, VA.

12:00 NOON - 2:00 PM. The DC Bar Association will host panel presentation titled "Arbitration of Antitrust Claims in the U.S. and Europe". The speakers will be Daniel Margolis, Mark Joelson, Donald Baker (Baker & Miller), and Gordon Blanke (SJ Berwin). The price to attend ranges from $5 to $30. For more information, contact 202-626-3463. See, notice. Location: Arnold & Porter, 10th floor, 555 12th St., NW.

Deadline to submit initial comments to the Federal Communications Commission's (FCC) Consumer and Governmental Affairs Bureau (CGAB) regarding the National Exchange Carriers Association's (NECA) proposed compensation rates for interstate traditional TRS, interstate speech-to-speech (STS), interstate captioned telephone service (CTS) and interstate and intrastate internet protocol captioned telephone service (IP CTS), interstate and intrastate IP relay; and interstate and intrastate video relay service (VRS). See, notice in the Federal Register, May 12, 2008, Vol. 73, No. 92, at Page 26992-26993. This proceeding is CG Docket No. 03-123.

Monday, May 19

9:00 AM - 12:45 PM. The Federal Communications Commission's (FCC) Public Safety and Homeland Security Bureau will host an event titled "Promoting an Effective Emergency Alert System on the Road to a Next Generation EAS". The FCC will webcast the event. Location: FCC, Commission Meeting Room, TW-C305, 445 12th St., SW.

Extended deadline to submit reply comments to the Federal Communications Commission (FCC) in response to it Notice of Proposed Rulemaking (NPRM) regarding the Recommended Decision of the Federal State Joint Board on Universal Service, released on November 20, 2007, regarding comprehensive reform of high cost universal service taxes and subsidies. The FCC adopted this NPRM on January 15, 2008, and released the text on January 29, 2008. It is FCC 08-02 in WC Docket No. 05-337 and CC Docket No. 96-45. See, original notice in the Federal Register, March 4, 2008, Vol. 73, No. 43, at Pages 11587-11591. See also, notice [PDF] of extension (DA 08-674).

Extended deadline to submit reply comments to the Federal Communications Commission (FCC) in response to it Notice of Proposed Rulemaking (NPRM) regarding the use of reverse auctions to determine the amount of high cost universal service subsidies provided to eligible telecommunications carriers serving rural, insular, and high cost areas. The FCC adopted this NPRM on January 9, 2008, and released the text on January 29, 2008. It is FCC 08-05 in WC Docket No. 05-337 and CC Docket No. 96-45. See, original notice in the Federal Register, March 4, 2008, Vol. 73, No. 43, at Pages 11591-11602. See also, notice [PDF] of extension (DA 08-674).

Extended deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) regarding the FCC's rules governing the amount of high cost universal service subsidies provided to competitive eligible telecommunications carriers (ETCs). This NPRM also tentatively concludes that the FCC should eliminate the existing identical support rule, which is also known as the equal support rule. The FCC adopted this NPRM on January 9, 2008, and released the text on January 29, 2008. It is FCC 08-04 in WC Docket No. 05-337 and CC Docket No. 96-45. See, original notice in the Federal Register, March 4, 2008, Vol. 73, No. 43, at Pages 11580-11587. See also, notice [PDF] of extension (DA 08-674).

Tuesday, May 20

10:00 AM. The Senate Judiciary Committee's (SJC) Subcommittee on Human Rights and the Law will hold a hearing titled "Global Internet Freedom: Corporate Responsibility and the Rule of Law". The witnesses will Nicole Wong (Deputy General Counsel of Google), Michael Samway (Deputy General Counsel of Yahoo), Mark Chandler (General Counsel of Cisco Systems), Arvind Ganesan (Human Rights Watch), and Shiyu Zhou (Global Internet Freedom Consortium). Sen. Richard Durbin (D-IL) will preside. See, notice. Location: Room 226, Dirksen Building.

10:00 AM - 4:15 PM. The U.S.-China Economic and Security Review Commission will hold a hearing titled "China's Proliferation Practices and the Development of its Cyber and Space Warfare Capabilities". See, notice in the Federal Register, April 28, 2008, Vol. 73, No. 82, at Pages 23005-23006. Location: Room 562, Dirksen Building, Capitol Hill.

12:15 - 1:30 PM. The Federal Communications Bar Association's (FCBA) Wireline and International Practice Committees will host a brown bag lunch titled "Functional Separation proposals under the European Commission review of the European Unionís Framework Directive". The speakers may include Sheba Chacko (BT), Wolfgang Jakubek (Deutsche Telecom), Scott Harris (Harris Wiltshire & Grannis), and Don Stockdale (FCC). For more information, contact Nick Alexander at Nicholas dot Alexander at fcc dot gov. Location: Akin Gump, 1333 New Hampshire Ave, NW.

Wednesday, May 21

10:00 AM. The Securities and Exchange Commission (SEC) will meet. The agenda states that the SEC "will consider whether to propose amendments to provide for mutual fund risk/return summary information to be filed with the Commission in interactive data format". Location: SEC, Room L-002, 100 F St., NE.

12:30 PM. The Federal Communications Bar Association's (FCBA) Young Lawyers Committee will hold a brown bag lunch to elect officers and plan. E-mail nominations to Chris Fedeli at chrisfedeli at dwt dot com and Tarah Grant at tsgrant at hhlaw dot com by Friday, May 9, 2008. See, notice online registration page. Location: Hogan & Hartson, 1st floor litigation center, 555 13th St., NW.

Day one of a two day closed meeting of the Department of Defense's (DOD) Defense Science Board regarding undisclosed topics. See, notice in the Federal Register, April 23, 2008, Vol. 73, No. 79, at Pages 21919-21920. Location: Pentagon, Arlington, VA.

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