11/18. The Federal Communications Commission (FCC) adopted and released a Declaratory Ruling [42 pages in PDF] that defines time frames for state and local action on wireless facilities siting requests.

This DR grants in part the CTIA's Petition for Declaratory Ruling [44 pages in PDF] filed on July 11, 2008, regarding interpretation of 47 U.S.C. § 332(c)(7)(B) and 47 U.S.C. § 253.

This DR provides that state and local governments have 90 days to review collocation applications and 150 days to review siting applications other than collocations.

FCC Chairman Julius Genachowski wrote in his statement that "One challenge mobile operators face is getting timely zoning approvals from state and local officials before building towers or deploying new equipment. Recognizing this problem, Congress required these entities to act on such requests ``within a reasonable period of time.´´ Yet, despite Congress's strong statement, the record before us indicates that delays have continued to persist in too many states and localities."

Statutes. Subsection 332(c)(7)(B)(i) provides that "The regulation of the placement, construction, and modification of personal wireless service facilities by any State or local government or instrumentality thereof -- (I) shall not unreasonably discriminate among providers of functionally equivalent services; and (II) shall not prohibit or have the effect of prohibiting the provision of personal wireless services".

It further provides that "A State or local government or instrumentality thereof shall act on any request for authorization to place, construct, or modify personal wireless service facilities within a reasonable period of time after the request is duly filed with such government or instrumentality, taking into account the nature and scope of such request." (Emphasis added.)

Subsection 253(a) provides that "No State or local statute or regulation, or other State or local legal requirement, may prohibit or have the effect of prohibiting the ability of any entity to provide any interstate or intrastate telecommunications service."

Then, subsection 253(d) provides that if the FCC "determines that a State or local government has permitted or imposed any statute, regulation, or legal requirement that violates subsection (a) or (b) of this section, the Commission shall preempt the enforcement of such statute, regulation, or legal requirement to the extent necessary to correct such violation or inconsistency."

FCC Declaratory Ruling. This DR states that "While Section 332(c)(7) of the Communications Act preserves the
authority of State and local governments with respect to such approvals, Section 332(c)(7) also limits
such State and local authority, thereby protecting core local and State government zoning functions while
fostering infrastructure build out."

With respect to the meaning of "a reasonable period of time", this DR states that "We conclude that the record supports setting the following timeframes: (1) 90 days for the review of collocation applications; and (2) 150 days for the review of siting applications other than collocations."

This DR also finds that "it is a violation of Section 332(c)(7)(B)(i)(II) of the Communications Act for a State or local government to deny a personal wireless service facility siting application because service is available from another provider."

However, this DR also concludes that "because we have not been presented with any evidence of a specific controversy, we deny the last part of the Petitioner’s request, that we find that a State or local regulation that requires a variance or waiver for every wireless facility siting violates Section 253(a) of the Communications Act."

Reaction. Steve Largent, head of the CTIA, thanked the FCC in a release. He also stated that "Tower siting is a vital piece of our industry. It enables mobile services, including voice and broadband, for consumers, public safety, and businesses. Both Congress and the Supreme Court recognized the importance of taking concrete steps to ensure that the zoning process does not become a barrier to the reasonable deployment of, and competition among, diverse wireless networks."

The National Association of Telecommunications Officers and Advisors (NATOA) stated in its web site that it is "reviewing the details of the order and will determine our next steps".

This DR is FCC 09-99 in WT Docket No. 08-165.

11/20. Federal Communications Commission (FCC) Commissioner Robert McDowell gave a speech in Washington DC. He said that "I am interested in exploring options for fostering minority ownership that are legally sustainable", and that do not have unintended consequence for small businesses.

He spoke at a conference hosted by the Rainbow Push Coalition. FCC Commissioner Michael Copps also gave a speech at this event. Copps decried "the deplorable state of minority and female ownership". He argued that "Minorities have suffered greatly because of consolidation, both in the type of homogenous programming that excludes so much of our diverse culture from the airwaves and from diminished ownership and management opportunities."

The Supreme Court's 1995 opinion in Adarand Constructors v. Pena, 515 U.S. 200, applied the strict scrutiny standard to equal protection analysis of racial classifications in government contracting. The relevant statute in that case provided that "Monetary compensation is offered for awarding subcontracts to small business concerns owned and controlled by socially and economically disadvantaged individuals".

The U.S. Court of Appeals (DCCir) then applied the holding in Adarand to FCC rules. In 2001, the DC Circuit issued its opinion in MD/DC/DE Broadcasters Association v. FCC, 236 F.3d 13, a petition for review of the FCC's race and sex based hiring rules for broadcasters. The Court vacated the FCC's rules in their entirety on the grounds that they are unconstitutional under equal protection analysis. The Court ruled that the FCC rules put pressure on broadcasters to recruit women and minorities, that the rules are a race based classification to which the strict scrutiny test applies, that the rules are not narrowly tailored to meet a compelling state interest, and that hence, they are unconstitutional. See also, then FCC Chairman William Kennard's reaction, and then Commissioner Gloria Tristani's reaction.

The Court also vacated the FCC's previous rules in 1998 in its opinion in Lutheran Church v. FCC. See, story titled "DC Appeals Court Rules Against FCC in Lutheran Church Case", in Tech Law Journal, April 16, 1998.

See also, story titled "McDowell Discusses Media Buys, Adarand, and PPM" in TLJ Daily E-Mail Alert No. 1,989, September 25, 2009.

McDowell (at left) said that Adarand "sets a very high legal hurdle that any race-conscious laws and rules must clear in order to survive, whether they are in the context of broadcasting, auction bidding credits, or other ownership constructs".

He continued, "As we sort through the complexities of the legal standards and such, however, it is important that none of us loses sight of the pragmatic realities that surround the ownership issue. To boil it down, if you want to own something, somehow you have to find the money to buy or build it."

"Finding ways to improve entrepreneurs' access to capital has been a priority of mine", said McDowell.

He expressed his support for "the measures adopted in the 2007 Diversity Order, which sets forth 13 different rule changes or new initiatives. At least nine of those measures aim, directly or indirectly, to help licensees that qualify as eligible entities to acquire capital or make efficient use of the financial resources they have. Examples include easing ownership attribution rules to encourage greater investment in eligible stations, extending construction and sale deadlines for eligible licensees, and convening conferences to bring small entrepreneurs and potential funding sources together." (This order [70 pages in PDF] was not released until March of 2008. It is FCC 07-217 in MB Docket Nos. 07 294, 06-121, 02-277, and 04-228, and MM Docket Nos. 01-235, 01-317, and 00-244.)

McDowell also advocated "reinstatement of a legally sustainable tax certificate program designed to help socially disadvantaged businesses enter the communications arena".

He also discussed how other rules can have the affect or harming small and minority owned broadcasters. For example, he addressed the open access mandates on some of the spectrum auctioned in the 700 MHz auction. He said that "I was especially concerned that larger carriers would avoid the encumbered spectrum and outbid smaller players for the unregulated spectrum blocks. It gives me no joy to report that my fears proved to be correct -- the smaller providers did indeed lose out."

He also said that reinstating the former rule requiring that broadcast stations be manned live throughout their broadcast day would harm small broadcasters who cannot afford man their stations after regular business hours.

He added that localism rules, such as those requiring the enhanced disclosure form, and reinstatement of the main studio rule, can create similar harms.

11/19. The U.S. District Court unsealed six indictments that charge 26 people with conspiracy to defraud the U.S. government and to submit false claims, submitting false claims, conspiracy to commit mail fraud, and mail fraud, in connection with their defrauding the Federal Communications Commission's (FCC) Video Relay Service (VRS) program by submitting false and fraudulent claims for VRS calls.

The VRS program is an online video translation service that enables people with hearing disabilities to communicate with hearing individuals through the use of interpreters and web cameras. The VRS program is funded by a tax collected by telecommunications service providers on their customers.

The Department of Justice (DOJ) stated in a release that these cases involve the theft of "tens of millions of dollars".

Edward Lazarus, FCC Chairman Julius Genachowski's Chief of Staff, stated in a release that "a significant number of unscrupulous individuals, at great cost to the nation, have preyed" on the VRS program.

He added that the FCC is opposed to "future waste, fraud, and abuse", and has "substantially tightened its oversight of the VRS program".

11/13. The U.S. District Court (WDWash) sentenced Billy Morris Britt to serve 61 months in prison, serve five years of supervised release, and pay $466,622 in restitution following his plea of guilty to conspiracy to commit bank fraud and access device fraud and aggravated identity theft.

The U.S. Attorneys Office (USAO) for the Western District of Washington stated in a release that Britt was part of a group that stole credit cards from gym lockers, immediately made counterfeit identifications, and then used the stolen cards to make high end electronics purchases, before the thefts were reported. The group then sold the electronics items via the eBay auction web site.

The USAO stated that "members of the conspiracy would frequent work-out facilities and fitness centers in Washington, Oregon and as far away as Georgia, and would break into the lockers of people using the work out facilities. The conspirators would remove credit cards from wallets they found in the lockers, and working with equipment in their cars, would make phony identification to go with the credit cards."

The USAO continued that Britt would purchase "high end electronics using the credit cards and fake IDs before the owners could report the cards stolen. The goods were shipped to co-conspirator Gabriel Jang, ... who then sold the items on eBay. PayPal records indicate Jang's account received more than $3 million between April of 2001, and August of 2008."

Britt aided investigators by registering for a Best Buy rewards account in the name of one of the victims, which account he used for 125 different credit card purchases.

11/23. The U.S. District Court (EDMich) sentenced Alan M. Ralsky, Scott Bradley, How Wai John Hui, John S. Bown to serve 51, 40, 51, and 32 months in prison, respectively, following their pleas of guilty to violating the federal CAN-SPAM Act (18 U.S.C. § 1037), and other criminal statutes.

They used spam as part of a securities pump and dump scheme.

See also, stories titled "DOJ Prosecutes Operators of Pump and Dump Securities Scheme Under CAN-SPAM and CFAA" in TLJ Daily E-Mail Alert No. 1,695, January 4, 2008, "Ralsky, Bown and Others Plead Guilty in CAN-SPAM and CFAA Case" in TLJ Daily E-Mail Alert No. 1,960, June 23, 2009, and "SPAM Software Designer Pleads Guilty in Ralsky Case" in TLJ Daily E-Mail Alert No. 1,968, July 9, 2009.

Lanny Breuer (at right), Assistant Attorney General in charge of the DOJ's Criminal Division, stated in a release that "People who use fraudulent e-mails to drive up stock prices and reap illicit profits will be prosecuted, and they will face significant prison time".

The Department of Justice also stated in this release that "the defendants used various illegal methods in order to maximize the amount of spam that evaded spam-blocking devices and tricked recipients into opening, and acting on, the advertisements in the spam. These included using falsified "headers" in the e-mail messages, using proxy computers to relay the spam, using falsely registered domain names to send the spam, and also making misrepresentations in the advertising content of some of the underlying e-mail messages.

11/20. Neil Felahy pled guilty in U.S. District Court (DC) to one count of conspiracy to traffic in counterfeit goods (18 U.S.C. § 2320, and one count of conspiracy (18 U.S.C. § 371), in connection with the sale of counterfeit integrated circuits to the U.S. Navy. The Department of Justice (DOJ) described the criminal activities of Felahy and the other defendants in a release [PDF]. First, "they acquired counterfeit integrated circuits from supply sources in China, imported them into the United States, and sold them to the public via the Internet." Second, "they obtained trademark-branded integrated circuits then scraped, sanded, or ground off the original markings, and caused the devices to be remarked with another trademark and other markings thereby fraudulently indicating, among other things, that the devices were of a certain brand, newer, higher quality or were of a certain grade, including military grade." And third, they harvested "dies from integrated circuits and caused them to be repackaged to appear new, including adding trademarks and other markings indicating that the devices were of a certain brand, higher quality or were of a certain grade." The defendants' activities included shipping "integrated circuits bearing false, counterfeit trademarks to the U.S. Navy".

11/13. The U.S. District Court (EDVa) sentenced Clyde Austin Gray Jr. to serve 136 months in prison, serve 5 years of supervised release, and pay $1,414,519.80 in restitution, following his plea of guilty on. July 22, 2009, to conspiracy to commit bank fraud, in connection with his leading an identity theft ring that caused a total loss of more than $1.5 Million at at least 10 financial institutions. See, Office of the U.S. Attorney for the Eastern District of Virginia release.

11/13. A grand jury of the U.S. District Court (DAriz) returned a ten count indictment that charges Chuen Han Yuen (aka Jason Yuen), Man Yam Yuen, Tsao Ping Ng, and Sin L. Yuen (aka Michelle Yuen) with conspiracy, mail fraud, wire fraud and copyright infringement in connection with their alleged copying of copyrighted television shows and movies, and sale and distribution via the internet and U.S. Mail. See, Federal Bureau of Investigation (FBI) release that "

11/13. Farrukh Awan, a former employee of the District of Columbia's Office of the Chief Technology Officer (OCTO) pled guilty in U.S. District Court (DC) to conspiracy to commit wire fraud in connection with his involvement in a kickback scheme. See, Office of the U.S. Attorney for the District of Columbia release.

11/10. A grand jury of the U.S. District Court (NDGa) returned a 16 count indictment that charges Sergei Tsurikov, Viktor Pleshchuk, Oleg Covelin and an unnamed fourth defendant, with commit wire fraud, wire fraud, conspiracy to commit computer fraud, computer fraud, access device fraud and aggravated identity theft in connection with "hacking into a computer network operated by the Atlanta-based credit card processing company RBS WorldPay, which is part of the Royal Bank of Scotland." See, Department of Justice release [PDF]. The DOJ added that the defendants compromised "the data encryption that was used by RBS WorldPay to protect customer data on payroll debit cards", thereby enabling them to "withdraw more than $9 million from more than 2,100 ATMs in at least 280 cities worldwide" in 12 hours.

11/9. Edward Karl Wells pled guilty in U.S. District Court (DC) to theft of government property in connection with his attempt to get books from the Library of Congress (LOC), for free, under its Surplus Book Program. This program is available only to qualifying educational institutions, public bodies and nonprofit tax-exempt organizations. The Office of the U.S. Attorney for the District of Columbia stated in a release that Wells falsely claimed to represent an adult literacy program, but in fact "intended to sell the books on the internet site, Amazon.com". This release adds that he carried away 27 books, and that the LOC boxed another 350 books for shipment. However, the LOC discovered his fraud prior to shipping.

The House will not meet the week of November 23-27. See, Rep. Hoyer's release.

The Senate will not meet the week of November 23-27. It will next meet at 2:00 PM on Monday, November 30.

8:30 AM - 1:30 PM. The National Science Foundation's (NSF) President's Committee on the National Medal of Science will hold a closed meeting. See, notice in the Federal Register: October 19, 2009, Vol. 74, No. 200, at Pages 53521-53522. Location: Hilton Arlington Hotel, 950 North Stafford Street, Arlington, VA.

10:00 AM. Deadline for foreign governments to submit comments to the Office of the U.S. Trade Representative (OUSTR) in response to its request for comments regarding its Special 301 out of cycle reviews of Fiji, Israel, Philippines, Poland, and Saudi Arabia, and regarding identification of countries under Section 182 of the Trade Act of 1974. See, notice in the Federal Register, October 5, 2009, Vol. 74, No. 191, at Pages 51215-51216.

The House will not meet the week of November 23-27. See, Rep. Hoyer's release.

The Senate will not meet the week of November 23-27. It will next meet at 2:00 PM on Monday, November 30.

9:00 AM - 2:00 PM. The National Medal of Technology and Innovation (NMTI) Nomination Evaluation Committee will hold a closed meeting. See, notice in the Federal Register, November 6, 2009, Vol. 74, No. 214, at Pages 57450-57451. Location: U.S. Patent and Trademark Office, 600 Dulany Street, Alexandria, VA.

2:00 - 4:00 PM. The Department of State's (DOS) International Telecommunication Advisory Committee (ITAC) will hold a meeting to prepare for the International Telecommunication Union (ITU) World Telecommunication Development Conference, which will be held in May 2010 in Hyderabad, India. See, notice in the Federal Register, October 28, 2009, Vol. 74, No. 207, at Pages 55618-55619. Location: 10th floor, 1120 20th St., NW.

2:30 - 4:00 PM. The American Bar Association's (ABA) Section of Antitrust Law will host a seminar by teleconference titled "Damages in Lanham Act False Advertising Cases: Theory and Practice". The speakers will be Christopher Cole (Manatt Phelps), Ravi Dhar (Yale University School of Management), and Christopher Borek (Analysis Group). See, notice [PDF].

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) regarding the effect of line loss on universal service Local Switching Support (LSS) received by incumbent local exchange carriers (LECs) that are designated as eligible telecommunications carriers (ETCs). This  NPRM [13 pages in PDF] is FCC 09-89 in WC Docket No. 05-337. See, notice in the Federal Register, November 10, 2009, Vol. 74, No. 216, at Page 57982-57986. See also, story titled "FCC Releases Order and NPRM on Local Switching Support" in TLJ Daily E-Mail Alert No. 2,001, October 12, 2009.

The House will not meet the week of November 23-27. See, Rep. Hoyer's release.

The Senate will not meet the week of November 23-27. It will next meet at 2:00 PM on Monday, November 30.

? Deadline to submit comments to the National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) regarding its draft NIST IR 7628 [236 pages in PDF] titled "Smart Grid Cyber Security Strategy and Requirements".

The House will not meet the week of November 23-27. See, Rep. Hoyer's release.

The Senate will not meet the week of November 23-27. It will next meet at 2:00 PM on Monday, November 30.

Thanksgiving Day. This is a federal holiday. See, Office of Personnel Management's (OPM) web page titled "2009 Federal Holidays".

The House will not meet the week of November 23-27. See, Rep. Hoyer's release.

The Senate will not meet the week of November 23-27. It will next meet at 2:00 PM on Monday, November 30.

Final deadline to submit nominations for membership on the National Institute of Standards and Technology's (NIST) Smart Grid Interoperability Panel Governing Board (SGIPGB). The NIST announced that "Nominations received by November 6, 2009, will be considered to be placed on the ballot for the initial SGIP Governing Board. Nominations received after that date will be considered for any positions for which nominations were not received by November 6, 2009, and for vacancies that may occur prior to the next call for candidates." See, notice in the Federal Register, October 28, 2009, Vol. 74, No. 207, at Pages 55540-55541.

Deadline to submit comments to the U.S. Patent and Trademark Office (USPTO) regarding its proposed Patents Ombudsman Pilot Program. See, notice in the Federal Register, October 27, 2009, Vol. 74, No. 206, at Page 55212.

The House will meet the week of November 30 through December 4. See, Rep. Hoyer's release.

The Senate will meet at 2:00 PM.

12:15 - 1:30 PM. The Federal Communications Bar Association's (FCBA) Intellectual Property Committee will host a brown bag lunch titled "The Economic Importance of Copyright in America". The topics will include "(1) The proper metrics for measuring the impact of copyright on the economy; (2) The validity of studies and research papers showing the effect of copyright on the economy; (3) Emerging new business models and their impact on the profitability of traditional media firms; (4) Consumer rights and expectations with regard to copyright in the digital age; (5) Governmental responses to new copyright problems". The speakers will include Tom Sydnor (Progress & Freedom Foundation), Patrick Ross (Copyright Alliance), and Gigi Sohn (Public Knowledge). Location: Dow Lohnes, 1200 New Hampshire Ave., NW.

EXTENDED TO DECEMBER 7. Deadline to submit comments to the Federal Trade Commission (FTC) in response to its notice of proposed rulemaking (NPRM) regarding deceptive marketing of credit reports. See, notice of extension.

8:30 AM - 5:00 PM. Day one of a two day event hosted by the Federal Trade Commission (FTC) titled "From Town Criers to Bloggers: How Will Journalism Survive the Internet Age?". See, September 30 notice [PDF], notice in the Federal Register, October 7, 2009, Vol. 74, No. 193, at Pages 51605-51608, and agenda [PDF]. See also, story titled "FTC Requests Comments on Journalism, New Media and Online Advertising" in TLJ Daily E-Mail Alert No. 1,994, October 1, 2009. This event was originally scheduled for September 15, 2009. Location: FTC Conference Center, 601 New Jersey Ave., NW.

9:00 - 11:00 AM. The Progress & Freedom Foundation (PFF) will host a panel discussion titled "Let's Make a Deal: Broadcasters, Mobile Broadband, and a Market in Spectrum". The speakers will include Blair Levin (FCC), Adam Thierer (PFF), Coleman Bazelon (Brattle Group), Kostas Liopiros (Sun Fire Group), and others. See, notice and registration page. Location: National Press Club, Holeman Lounge, 13th floor, 529 14th St., NW.

12:00 NOON - 1:30 PM. The American Bar Association's (ABA) Section of Antitrust Law will host a seminar by teleconference titled "The FTC's New Endorsement and Testimonial Guides". The speakers will be Stacey Ferguson (FTC), Mark Levine (Council of Better Business Bureaus), Paul Rand (Zocalo Group), and Dana Rosenfeld (Kelley Drye & Warren). See, ABA notice and registration page, and TLJ story titled "FTC Makes Law Abridging the Freedom of Bloggers" in TLJ Daily E-Mail Alert No. 1,997, October 6, 2009.

2:00 - 3:30 PM. The Department of Justice's (DOJ) Antitrust Division's Economic Analysis Group will host a presentation by Tim Brennan (UMD Baltimore County) titled "Exclusion vs. Predation: Drawing Lines Between Easy and Hard Abuse Cases". To request permission to attend, contact Patrick Greenlee at 202-307-3745 or atr dot eag at usdoj dot gov. Location: DOJ, Liberty Square Building, 450 5th St., NW.

Day one of a three day workshop hosted by the National Institute of Standards and Technology (NIST) on the ISO/IEC 24727 Identification cards, Integrated circuit card programming interfaces. This is a multi-part standard for interoperable identification, authentication, and signature services for credentials and applications. The price to attend is $90. Registration is required. See, notice in the Federal Register, November 6, 2009, Vol. 74, No. 214, at Pages 57451-57452. Location: National Transportation Safety Board (NTSB) Board Room/Conference Center, 429 L'Enfant Plaza, SW.

Deadline to submit comments to the National Institute of Standards and Technology (NIST) regarding its draft document [90 pages in PDF] titled "NIST Framework and Roadmap for Smart Grid Interoperability Standards, Release 1.0". See, notice in the Federal Register, October 9, 2009, Vol. 74, No. 195, at Pages 52181-52183.

? Deadline to submit comments to the National Institute of Standards and Technology (NIST) regarding its draft NIST IR 7628 [236 pages in PDF] titled "Smart Grid Cyber Security Strategy and Requirements". See, notice in the Federal Register, October 9, 2009, Vol. 74, No. 195, at Pages 52183-52184.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) regarding the effect of line loss on universal service Local Switching Support (LSS) received by incumbent local exchange carriers (LECs) that are designated as eligible telecommunications carriers (ETCs). This NPRM [13 pages in PDF] is FCC 09-89 in WC Docket No. 05-337. See, notice in the Federal Register, November 10, 2009, Vol. 74, No. 216, at Page 57982-57986. See also, story titled "FCC Releases Order and NPRM on Local Switching Support" in TLJ Daily E-Mail Alert No. 2,001, October 12, 2009.

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