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February 12, 2009, Alert No. 1,898.
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Obama Signs DTV Delay Act

2/11. President Obama signed S 352 [LOC | WW], the "DTV Delay Act". The White House news office issued a release and statement.

It states that this act "ensures that our citizens will have more time to prepare for the conversion. Millions of Americans, including those in our most vulnerable communities, would have been left in the dark if the conversion had gone on as planned, and this solution is an important step forward as we work to get the nation ready for digital TV."

This statement adds that "My administration will continue to work with leaders in Congress, broadcasters, consumer groups and the telecommunications industry to improve the information and assistance available to our citizens in advance of June 12."

FCC Makes Further DTV Transition Announcements

2/11. The Federal Communications Commission (FCC) continues to hectically plan consumers' and broadcasters' switch from analog to digital broadcasting.

For years, the scheduled deadline for ceasing analog broadcast service was February 17, 2009.

On January 8, 2009, the Obama transition office proposed delaying the deadline in a letter [PDF] to Congressional leaders. See, story titled "Obama Transition Suggests Legislative Extensive of February 17 DTV Transition" in TLJ Daily E-Mail Alert No. 1,881, January 12, 2009.

The Congress passed S 352 [LOC | WW], the "DTV Delay Act", which among other things, extends the deadline to June 12, 2009, but allows stations to switch before then, subject to FCC determinations. See, story titled "House Passes DTV Delay Act" in TLJ Daily E-Mail Alert No. 1,891, February 4, 2009,

On February 5, the FCC released a  Public Notice [9 pages in PDF] regarding procedures that full power television broadcast stations must follow if they want to terminate analog broadcasts on February 17, 2009.  This Public Notice is FCC 09-6.

This Public Notice provided that one precondition for terminating analog service on February 17 is providing "notice to the Commission" by 11:59 PM EST on February 9". See, story titled "FCC Announces Procedures for Terminating Analog Broadcast Service Prior to June 12" in TLJ Daily E-Mail Alert No. 1,893, February 6, 2009.

The day after this deadline, on Tuesday, February 10, the published a Public Notice [2 pages in PDF] and Appendix A [17 pages in PDF] and Appendix B [49 pages in PDF] that list full power television broadcast stations that have terminated or request to terminate their analog operations prior to February 17, 2009. This Public Notice is DA 09-221.

On Wednesday at 10:00 AM, February 11, FCC Chairman Michael Copps held a news conference at which he discussed, and responded to questions about, this subject.

Rick ChessenRick Chessen (at left) sat next to Copps. Chessen, who is Copps' Senior Legal Advisor, answered many of the questions.

Copps said that the FCC will not permit all broadcasters who supplied notices of intent to the FCC to actually terminate their analog service on February 17. He said that the reason is "vulnerable markets".

He was asked, numerous times, in various ways, what are the "vulnerable markets", and what does this term mean. Copps made statements which provided no answers. He said that this is a "work in progress", and that we are "trying to work our way through that right now".

Near midnight on Wednesday, February 11, the FCC released another Public Notice [6 pages in PDF] and Appendix [3 pages in PDF]. This Public Notice is FCC 09-7.

This Public Notice states that "We have now reviewed the 491 termination notices filed by the stations intending to end analog service on February 17, 2009. We find that 368 of these stations may proceed with their intended termination of analog service on February 17th." (Footnote omitted.)

The other 123 television stations, which are listed in the Appendix, are "not permitted to terminate their analog service on February 17th, unless they comply with the conditions and procedures described below".

This Public Notice does not use the term "vulnerable markets". Rather, it references stations "whose early termination poses a significant risk of substantial public harm".

This Public Notice then states that the 123 stations listed in the Appendix may obtain the waiver "necessary for them to terminate analog service on February 17, 2009 by certifying to the Commission, not later than the close of business (6:00 pm EST) on Friday, February 13th, that they will individually undertake the measures specified herein as a means of ameliorating the public interest harms that the termination of their analog service would engender."

This Public Notice then lists eight required measures. One of the requirements is that at least one station in the DMA will continue analog broadcasts for at least 60 days that includes "DTV transition and emergency information, as well as local news and public affairs programming".

Copps conceded at his Wednesday news conference that "we are working with near ridiculous kinds of deadlines".

FCC Approves Time Warner and Time Warner Cable Split

2/11. The Federal Communications Commission's (FCC) Media Bureau, and other bureaus, adopted and released a Memorandum Opinion and Order [26 pages in PDF] that grants the applications for the assignment and transfer of control of certain FCC licenses and authorizations from Time Warner Inc. to Time Warner Cable, Inc.

Robert McDowellFCC Commissioner Robert McDowell (at left) released a statement [PDF] in which he wrote that "I am pleased that the Media Bureau was able to act on these applications expeditiously under the leadership of Acting Chairman Michael Copps. This is yet another transaction that indicates that the media marketplace continues to deconsolidate, a trend that has been evident in recent years."

This is an action of the FCC's Media Bureau, Wireline Competition Bureau, Wireless Telecommunications Bureau, and International Bureau. This item is DA 09-73 in MB Docket No. 08-120 and WC Docket No. 08-157.

Copps Discusses Sirius XM

2/11. Federal Communications Commission (FCC) Chairman Michael Copps and his Senior Legal Advisor, Rick Chessen, responded to questions about Sirius XM Radio at a news conference on February 11, 2009.

Sirius XM Radio's stock price dropped to 6 cents per share on February 11, 2009. Sirius XM has not yet filed a petition with any U.S. Bankruptcy Court. The Wall Street Journal published a story on February 11, 2009, titled "Mogul Offers to Overhaul Sirius XM for Control". It states that Sirius XM may be forced into bankruptcy.

The FCC approved the merger of Sirius and XM in July of 2008, after sitting on the application for 18 months. The FCC imposed numerous conditions, such as minority channels. See, story titled "FCC Approves XM Sirius Merger" in TLJ Daily E-Mail Alert No. 1,800, July 25, 2008.

A reporter asked Copps if he would comment on whether the FCC's 18 month delay of the merger, and the conditions imposed, have played a role in Sirius's current plight. Copps said he would not comment. He said that "I will let the analysts be analysts".

Another reporter asked about the status of implementing the minority channels mandate. Chessen responded, "we are working with the Bureau".

Copps Discusses FCC Agenda

2/11. Federal Communications Commission (FCC) Chairman Michael Copps held a news conference on February 11, 2009, at which he discussed the short term agenda of the FCC.

Michael CoppsCopps (at right) said that the FCC is focused on planning the transition to digital television. He added that he is acting Chairman, and that he does not know how long this will last.

He said that the FCC could accomplish some other things in the next few months. He said that he has asked the Bureau Chiefs for lists of possible items.

He also said that it is possible that the FCC could put out a notice of proposed rule making (NPRM) or notice of inquiry (NOI) on some bigger issues. However, he listed only two possibilities: "public safety issues" and "D block".

He also said that he is "glad" to see the broadband provisions in HR 1 [LOC | WW], the huge spending bill.

The next FCC event titled "Open Meeting" is scheduled for Thursday, March 5. He said that it will be devoted to digital television transition issues. He added that the agenda could include other items, but as of now it does not.

Conferees Consider Conference Report on Huge Spending Bill

2/11. Neither the House nor the Senate released or passed a conference report on HR 1 [LOC | WW], the huge spending bill, on Wednesday, February 11, 2009.

Rep. Steny Hoyer (D-MD), the House Majority Leader, stated in a release on Wednesday night that there is something that is "being discussed by the conference committee".

He added that "At this point, House Floor timing for the conference report has not been determined. The schedule will be set pending the conclusion of the conference committee meeting."

The House is scheduled to meet at 10:00 AM on Thursday, February 12. Rep. Hoyer's schedule for February 12 lists "Possible Consideration of the Conference Report". The Senate is scheduled to meet at 10:00 AM for morning business.

Gigi Sohn, head of the Public Knowledge, stated in a release that "We understand that open network provisions of the stimulus package are part of the final agreement and that the legislation will use the Senate version of the bill to allow some sort of interconnection and nondiscrimination requirements to be part of the conditions of the grant money to be distributed by the National Telecommunications and Information Administration (NTIA)."

She also said that "The open network requirements were necessary because the public deserves benefits from the large sums of public money that will be distributed. We are pleased that Congress has taken the fundamental step of recognizing that open networks will help to create jobs and to stimulate economic activity in areas that are now unserved with broadband service."

4th Circuit Issues Opinion in MCImetro v. Christie

2/11. The U.S. Court of Appeals (4thCir) issued its opinion [10 pages in PDF] in MCImetro v. Christie, a case regarding lingering regulatory conditions imposed upon Verizon at the time of its merger with the former MCI WorldCom.

In 2005 the state of Virginia imposed certain rate regulations as a condition for its approval of the merger. Later, Verizon petitioned and litigated against the state to remove the condition. The state resisted, and prevailed in the District Court. However, by June of 2008 the state has rescinded the condition, and the state, Verizon and the FCC were all in agreement that the state regulation at issue is preempted by the Communications Act. Hence, the Court of Appeals ruled the matter to be moot. It vacated the judgment of the District Court, and remanded with a direction to dismiss.

The plaintiff in the District Court, and appellant before the Court of Appeals, is MCImetro Access Transmission Services of Virginia, Inc., dba Verizon Access Transmission Services of Virginia. It is hereinafter referred to as Verizon Access.

Verizon and MCI merged in 2005. The Department of Justice's (DOJ) Antitrust Division, approved the merger on October 27, 2005, subject to divestiture of some local fiber optic network facilities. See, stories titled "DOJ Approves Verizon MCI and SBC AT&T Mergers Subject to Divestitures", "DOJ Initiates Clayton Act  7 Proceeding Against SBC and AT&T", and "DOJ Initiates Clayton Act  7 Proceeding Against Verizon and MCI" in TLJ Daily E-Mail Alert No. 1,242, October 28, 2005.

The Federal Communications Commission (FCC) approved the merger on October 31, 2005, subject to numerous conditions. The FCC required, among other things, that the merged company shall not increase the rates paid by MCI's existing customers for 30 months. See, story titled "FCC Approves SBC/AT&T and Verizon/MCI Mergers With Conditions" in TLJ Daily E-Mail Alert No. 1,245, November 2, 2005.

The Virginia State Corporation Commission (VSCC) also approved the merger, subject to conditions. The VSCC imposed a rate constraints, but without a time limit. (Mark Christie is Chairman of the VSCC.)

In April 2006, Verizon Access petitioned the VSCC to remove its rate constraints, arguing that this is a matter of exclusive federal jurisdiction. The VSCC denied the petition.

Verizon Access filed a complaint in the U.S. District Court (EDVa) asserting federal preemption. In March 2007, the District Court ruled that Virginia's rate constraints are not preempted, and dismissed the complaint.

Verizon Access brought the present appeal.

In February 2008, the FCC and DOJ filed an amicus curiae brief [20 pages in PDF], at the request of the Court of Appeals. They argued that there is federal preemption, and that the VSCC lacked authority to regulate Verizon Access's interstate services.

In May 2008, the VSCC rescinded its rate constraints. In June it filed a motion with the Court of Appeals requesting that it dismiss the appeal as moot. It reaffirmed its recognition of the FCC's exclusive authority to regulate the interstate communications services at issue.

The Court of Appeals concluded that under these circumstances, the appeal is moot. It vacated the judgment of the District Court. And, it remanded to the District Court with instructions to dismiss.

This case is MCImetro Access Transmission Services of Virginia, Inc. v. Mark Christie, et al., U.S. Court of Appeals for the 4th Circuit, App. Ct. No. 07-1401, an appeal from the U.S. District Court for the Eastern District of Virginia, at Richmond, D.C. No. 3:06-cv-00740-JRS, Judge James Spencer presiding.

The three judge panel of the Court of Appeals issued a per curiam opinion. The panel was comprised of Judges Niemeyer, Shedd, and Duncan.

The Court of Appeals wrote that this opinion is unpublished, and that "Unpublished opinions are not binding precedent in this circuit".

In This Issue

This issue contains the following items:
  Obama Signs DTV Delay Act
  FCC Makes Further DTV Transition Announcements
  FCC Approves Time Warner and Time Warner Cable Split
  Copps Discusses Sirius XM
  Copps Discusses FCC Agenda
  Conferees Consider Conference Report on Huge Spending Bill
  4th Circuit Issues Opinion in MCImetro v. Christie

Correction

The stories titled "House Passes DTV Delay Act" in TLJ Daily E-Mail Alert No. 1,891, February 4, 2009, and "FCC Announces Procedures for Terminating Analog Broadcast Service Prior to June 12" in TLJ Daily E-Mail Alert No. 1,893, February 6, 2009, both incorrectly referred to the "DTV Delay Act" that passed the House on February 4, 2009, as S 328. It fact, the bill is S 352.

Washington Tech Calendar
New items are highlighted in red.
Thursday, February 12

The House will meet at 10:00 AM for legislative business. Rep. Hoyer's schedule for February 12 states "Possible Consideration of the Conference Report to" HR 1 [LOC | WW], the huge spending bill.

The Senate will meet at 10:00 AM for morning business.

200th anniversary of the birth of former President Abraham Lincoln. (This is not a federal holiday.)

Day two of a two day conference hosted by the Federal Trade Commission (FTC) titled "The Evolving IP Marketplace: Patent Remedies". See, release and agenda [PDF]. Location: FTC Conference Center, 601 New Jersey Ave., NW.

9:00 AM - 4:30 PM. Day four of a five day meeting of the Federal Aviation Administration's (FAA) RTCA Special Committee 159: Global Positioning System. See, notice in the Federal Register, January 28, 2009, Vol. 74, No. 17, at Page 5024. Location: RTCA, Inc., Suite 805, 1828 L St., NW.

9:00 AM - 12:30 PM. The U.S. Patent and Trademark Office (USPTO) will hold a roundtable on regarding whether or not to adopt some form of deferred examination for patent applications. See, notice in the Federal Register, January 28, 2009, Vol. 74, No. 17, at Pages 4946-4947. Location: USPTO, Madison Auditorium, Madison Building, 600 Dulany St., Alexandria, VA.

9:00 AM - 12:00 NOON. The U.S. Chamber of Commerce will host an event titled "Day Without Space". It will focus on "the economic and national security ramifications if our space assets were compromised for a period of time". The keynote speaker will be General James Cartwright, Vice Chairman of the Joint Chiefs of Staff. For more information, contact David Logsdon dlogsdon at uschamber dot com or 202-463-5479. Location: Chamber, 1615 H St., NW.

10:00 AM. The Senate Commerce Committee (SCC) will hold a hearing on the nominations of John Holdren to be Director of the Office of Science and Technology Policy (OSTP) in the Executive Office of the President, and Jane Lubchenco to be head of the National Oceanic and Atmospheric Administration (NOAA). See, notice. Location: Room 253, Russell Building.

10:00 AM. The Senate Commerce Committee (SCC) will hold a business meeting to adopt rules for the 111th Congress. See, notice. Location: Room 253, Russell Building.

10:00 AM. The Senate Homeland Security and Governmental Affairs Committee will hold a hearing titled "Structuring National Security and Homeland Security at the White House". See, notice. Location: Room 342, Dirksen Building.

11:00 AM. The House Judiciary Committee's (HJC) Subcommittee on Commercial and Administrative Law will hold a hearing titled "Libel Tourism". See, stories titled "New York Senate Passes Libel Terrorism Protection Act" in TLJ Daily E-Mail Alert No. 1,725, March 3, 2008, "Rep. King Introduces Free Speech Protection Act" in TLJ Daily E-Mail Alert No. 1,756, April 29, 2009, and "Sens. Specter and Lieberman Introduce Bill Regarding Foreign Forum Shopping Libel Actions" in TLJ Daily E-Mail Alert No. 1,765, May 13, 2008. See also, HR 5814 [LOC | WW] and S 2977 [LOC | WW], in the 110th Congress, both titled the "Free Speech Protection Act of 2008".The HJC will webcast this hearing. Location: Room 2141, Rayburn Building.

Deadline to submit comments to the Federal Trade Commission (FTC) in response to its "Interim final rules with request for comment" regarding its administrative adjudications. See, notice in the Federal Register, January 13, 2009, Vol. 74, No. 8, at Pages 1803-1836. See also, story titled "FTC Writes Rules to Bolster Power of Antitrust Regulators" in TLJ Daily E-Mail Alert No. 1,882, January 13, 2008.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its notice of proposed rulemaking (NPRM) regarding application of the closed captioning rules to digital broadcasting, specifically to broadcasters that choose to use their digital allotment to multicast several streams of programming. The FCC adopted this item on November 3, 2008, and released the text [57 pages in PDF] on November 7, 2008. It is FCC 08-255 in CG Docket No. 05-231. See, notice in the Federal Register, January 13, 2009, Vol. 74, No. 8, at Pages 1654-1661.

Friday, February 13

The House will meet at 10:00 AM for legislative business. See, Rep. Hoyer's schedule for week of February 9.

9:00 AM - 4:30 PM. Day five of a five day meeting of the Federal Aviation Administration's (FAA) RTCA Special Committee 159: Global Positioning System. See, notice in the Federal Register, January 28, 2009, Vol. 74, No. 17, at Page 5024. Location: RTCA, Inc., Suite 805, 1828 L St., NW.

6:00 PM. Deadline for certain broadcast stations to submit certifications to the Federal Communications Commission (FCC) regarding terminating analog service. See, FCC's Public Notice [6 pages in PDF], and story titled "FCC Makes Further DTV Transition Announcements" in TLJ Daily E-Mail Alert No. 1,898, February 12, 2009.

Monday, February 16

George Washington's birthday observed. See, Office of Personnel Management's (OPM) list of 2009 federal holidays.

The House will not meet the week of February 16-20 for a District Work Period.

10:00 AM. The Federal Trade Commission (FTC) is scheduled to begin its hearing in In the Matter of Whole Foods Markets, Inc. See, scheduling order [14 pages in PDF]. See also, story titled "DC Circuit Reverses in FTC v. Whole Foods" in TLJ Daily E-Mail Alert No. 1,802, July 29, 2008. Location: Room 532, FTC, 600 Pennsylvania Ave., NW.

5:00 PM. Deadline to register for the Federal Communications Bar Association's (FCBA) February 18 event titled "Investing in Foreign Telecoms Markets: Challenges and Opportunities". See, notice and registration page.

Tuesday, February 17

POSTPONED. Deadline for full power television stations to cease analog broadcasting.

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in Globalstar v. FCC, App. Ct. No. 08-1046. This is a petition for review of an FCC order regarding Big LEO spectrum. See, FCC brief [67 pages in PDF]. Judges Sentelle, Garland and Edwards will preside. Location: 333 Constitution Ave., NW.

12:30 - 1:30 PM. The Federal Communications Bar Association's (FCBA) State and Local Practice Committee will host a brown bag lunch titled "Collaboration between States, Federal Government and Industry on Uniform Outage Reporting for Carriers". The speaker will be Tom Goode, General Counsel of the Alliance for Telecommunications Industry Solutions (ATIS). See, notice and registration page. Location: Renaissance Hotel, Meeting Room 3, 999 9th St., NW.

1:00 - 3:00 PM. The Federal Communications Commission's (FCC) World Radiocommunications Conference (WRC-11) Advisory Committee's Informal Working Group 2: Terrestrial Services will meet. See, notice and FCC's WRC-11 web site. Location: FCC, South Conference Room, 2nd floor, Room 2-B516, 445 12th St., SW.

3:00 - 5:00 PM. The Federal Communications Commission's (FCC) World Radiocommunications Conference (WRC-11) Advisory Committee's Informal Working Group 3: Space Services will meet. See, notice and FCC's WRC-11 web site. Location: FCC, South Conference Room, 2nd floor, Room 2-B516, 445 12th St., SW.

5:00 PM. Deadline to submit applications to the National Institute of Standards and Technology (NIST) for participation in its 2009 SURF grant programs. These are the NIST's Gaithersburg Summer Undergraduate Research Fellowship Program, and Boulder Summer Undergraduate Research Fellowship Program. The NIST distributes grants for, among other topics, electronics and electrical engineering, and information technology. See, notice in the Federal Register, December 30, 2008, Vol. 73, No. 250, at Pages 79817-79822.

Wednesday, February 18

10:00 AM - 12:00 NOON. The Federal Communications Commission's (FCC) World Radiocommunications Conference (WRC-11) Advisory Committee's Informal Working Group 1: Maritime, Aeronautical and Radar Services will meet. See, notice and FCC's WRC-11 web site. Location: 1800 North Kent St., Suite 1060, RTCM, Rosslyn, VA.

12:15 - 1:45 PM. The Federal Communications Bar Association's (FCBA) Young Lawyers Committee will host a brown bag lunch titled "Transitions -- How to Successfully Navigate a Move into a New Position". The speakers will include Marcia Shannon (Shannon & Manch), Dan Binstock (BCG Attorney Search), Peter Shields (Wiley Rein), Laura Rychak (Cox Enterprises), and (?) Anna Gomez. RSVP to Christy Hammond at chammond at wileyrein dot com. For more information or to submit anonymous questions for the speakers, contact Cathy Hilke at chilke at wileyrein dot com or Christina Langlois at clanglois at nualumni dot com. Location: Wiley Rein, 5th floor, 1750 K St., NW.

6:00 - 8:15 PM. The Federal Communications Bar Association (FCBA) will host an event titled "Investing in Foreign Telecoms Markets: Challenges and Opportunities". See, notice and registration page. The price to attend varies. Location: Bingham McCutchen, 11th floor, 2020 K St., NW.

Thursday, February 19

10:30 AM - 12:00 NOON. The Heritage Foundation will host an event titled "Taiwan: Ideal Candidate for Free Trade Agreement". The speakers will be Chris Padilla, Rupert Hammond-Chambers (U.S.-Taiwan Business Council), and Walter Lohman (Heritage). Location: Heritage, 214 Massachusetts Ave., NE.

11:00 - 2:00 PM. George Washington University's (GWU) law school's IP Speaker Series will host a lecture by Greg Vetter. See, notice. Location: Faculty Conference Center (B505), GWU law school.

12:15 PM. The Federal Communications Bar Association's (FCBA) Wireless Telecommunications Practice Committee will host a lunch titled "How can telecommunications technologies, specifically wireless technologies, lead the green revolution?". Location: Sidley Austin, 6th floor, 1501 K St., NW.

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