Low Power FM Bill
12/17. Rep. Mike Doyle (D-PA) and
Rep. Lee Terry (R-NE) introduced HR 6533
WW], the "Local
Community Radio Act of 2010" on Thursday, December 16, 2010. The House passed it on
Friday, December 17. The Senate passed it on Saturday, December 18. It is ready for
the President's signature.
This bill will eliminate the third adjacent channel distant separation requirements for
low power FM (LPFM) radio broadcasting. It will enable more LPFM broadcasting in large markets.
Neither the House Commerce
Committee (HCC) nor the Senate
Commerce Committee (SCC) held a hearing or markup for this bill;
although, the Congress and Federal Communications Commission (FCC) have long and
often examined the subject of LPFM broadcasting.
The House previously passed a similar bill, HR 1147
WW], the "Local
Community Radio Act of 2009". Rep. Doyle introduced that bill on February
24, 2009. The HCC's Subcommittee on Communications, Technology and the Internet
held a hearing on June 11, 2009, and marked up that bill on October 8, 2009.
See, story titled "House Communications Subcommittee Approves LPFM Bill" in
TLJ Daily E-Mail
Alert No. 2,000, October 9, 2009. The full HCC marked up that bill on
October 15, 2009. See,
Report No. 111-375, and story titled "House Commerce Committee Approves LPFM
Bill" in TLJ Daily
E-Mail Alert No. 2,004, October 16, 2009. The full House passed that bill on
December 16, 2009. See, story titled "House Passes Low Power FM Radio Bill" in
TLJ Daily E-Mail
Alert No. 2,025, December 18, 2009.
The related bill is the Senate is S 592
The House passed HR 6533 by voice vote after a brief floor discussion.
Rep. Doyle (at left) stated in the House that
"We have been working together to bring local community-oriented radio to more cities,
counties, and neighborhoods across the country for 10 years now, and I would say to my friend
that I think we are finally on the last leg of this journey. This bill will allow churches,
schools, neighborhood groups, and others to put community-oriented programming on the air,
and it will help first responders provide those communities with critical information in times
of natural disasters and other emergencies." See, Congressional Record, December 17,
2010, at Page H8621.
Rep. Doyle, who won easy re-election in November, added that "I think we finally reached
a point where we all agree, broadcasters, commercial and noncommercial, that we now have a
process in place that protects their interests and their concerns and allows local communities
now to have this valuable resource."
Rep. Terry stated that "this is grassroots radio. We have had pirate radio. Now we are
going to have legitimate grassroots radio. This is empowering to those that have little or no
voice in their communities."
Rep. Cliff Stearns (D-FL) stated that
"We support it on this side", and since this bill addresses the technical
concerns of the National Association of
Broadcasters (NAB) regarding interference, "I understand now they are
The NAB sent a
letter to Rep. Doyle and Rep. Lee on December 17 expressing support for the Senate
version of the bill, because it "provides the clarity that local broadcasters have
Gordon Smith (at right), head of the NAB,
stated in a release
that "The revised legislation will expand the number of LPFM stations in the U.S. while
providing full-power radio stations with the protection and clarity we have long sought. NAB
salutes today's House action and offers its support for Senate passage as well."
Candace Clement of the Free Press stated in a
this bill "will make it possible for hundreds, if not thousands, of new local
radio stations to go on the air. ... These noncommercial stations will help to
diversify the airwaves, support local music and culture, and assist communities
Kamilla Kovacs of the Media Access Project
(MAP) stated in a
release that "Enactment of this bill eliminates a final obstacle to adding
thousands of new LPFM stations to about 800 stations already on the air. ...
LPFM is a proven mechanism for empowering communities to create their own, truly
local outlets in a medium too often dominated by a few corporate giants."
See also, release and
release of the
Prometheus Radio Project. It stated that "This
bill marks the first major legislative success for the growing movement for a more democratic
media system in the U.S."
|Summary of HR 6533, the Community Radio Act
12/18. HR 6533 [LOC
| WW], the "Local
Community Radio Act of 2010", as passed by the Congress, provides that the Federal
Communications Commission (FCC) "shall modify the rules authorizing the operation of
low-power FM radio stations, as proposed in MM Docket No. 99-25, to -- (1) prescribe protection
for co-channels and first- and second-adjacent channels; and (2) prohibit any applicant from
obtaining a low-power FM license if the applicant has engaged in any manner in the unlicensed
operation of any station in violation of section 301 of the Communications Act". See,
U.S.C. § 301.
It adds that "Any license that was issued by the Federal Communications Commission to
a low-power FM station prior to April 2, 2001, and that does not comply with the modifications
adopted by the Commission in MM Docket No. 99-25 on April 2, 2001, shall remain invalid."
The bill also requires that the FCC amend its rules to "eliminate third-adjacent
minimum distance separation requirements between -- (1) low-power FM stations; and (2)
full-service FM stations, FM translator stations, and FM booster stations".
But, the FCC "shall not amend its rules to reduce the minimum co-channel and
first- and second-adjacent channel distance separation requirements in effect on
the date of enactment of this Act between -- (A) low-power FM stations; and (B)
full-service FM stations".
Also, the FCC "may grant a waiver of the second-adjacent channel distance separation
requirement to low-power FM stations that establish, using methods of predicting interference
taking into account all relevant factors, including terrain-sensitive propagation models, that
their proposed operations will not result in interference to any authorized radio service".
The bill then establishes waiver requirements.
The bill also requires the FCC to ensure that "licenses are available to FM translator
stations, FM booster stations, and low-power FM stations", and that they "remain
equal in status and secondary to existing and modified full-service FM stations".
The bill also requires the FCC to modify its rules, and complaint process, regarding
interference. Rep. Stearns stated in the House that "It permits any citizen to complain
to the FCC that a low power radio station is causing interference to any full power radio
station and requires the FCC to shut down the station within 1 business day."
Finally, the bill requires the FCC to write within one year "an economic
study on the impact that low-power FM stations will have on full-service
commercial FM stations".
|History of LPFM Law and Policy
12/18. Low power FM (LPRM) broadcasting law and policy making has long and sometimes
Incumbent FM broadcasters -- commercial and non-commercial, such as National
Public Radio (NPR) -- have sought to
limit harm to their operations caused by interference from LPFM broadcasters. Their critics
have also asserted that they have sought to limit competition.
Over a decade ago proponents of LPFM at the Federal Communications Commission (FCC) briefly
established a LPFM program over the objection of many in Congress, as well as commercial and
non-commercial incumbent broadcasters. However, the next Congress wrote new legislation undoing
much of their work.
The FCC adopted a LPFM
Report and Order
on January 20, 2000. This item is FCC 00-19 in MM Docket No. 99-25. The Congress responded by
passing the Radio Broadcasting Preservation Act of 2000, despite the lobbying of the Congress
by the FCC, which was then led by former Chairman William Kennard.
Former Rep. Billy Tauzin (R-LA), the then Chairman of the House Commerce Committee's
Subcommittee on Telecommunications, and a floor manager of the bill, started the floor
debate by stating that he would ask the Department of Justice (DOJ) to conduct a criminal
investigation of the FCC's use of public funds to lobby Members of Congress in violation of
U.S.C. § 1913.
This Act was first passed as a stand alone bill by the House, and then passed
by both the House and Senate as part of the CJS appropriations bill for FY 2001.
632 of the of the Departments of Commerce, Justice, and State, the
Judiciary, and Related Agencies Appropriations Act, 2001, Public Law No. 106-553.
See also, TLJ story titled
"House Passes Bill to Restrain FCC on Low Power FM", April 13, 2000.
This Act limited the FCC's ability to issue LPFM licenses. It provided, in part, that
the FCC "shall modify the rules authorizing the operation of low-power FM radio stations,
as proposed in MM Docket No. 99-25, to -- (A) prescribe minimum distance separations for
third-adjacent channels (as well as for co-channels and first- and second-adjacent channels)
..." (Parentheses in original.)
The FCC then wrote new LPFM rules under the leadership of Chairman Michael Powell.
The effect of the FCC's rules was that LPFM licenses were issued, but, as Rep. Stearns stated
in the House on December 16, not in the "top 50 radio markets in the country".
The FCC subsequently wrote reports, endorsed by Commissioners, recommending that the third
adjacent channel distant separation requirements be eliminated. See, February 19, 2004,
report, which concluded that "Existing third-adjacent minimum distance separation
requirements between LPFM stations and existing full-service FM stations and FM translator
and booster stations should be eliminated." It added that "Congress should re-address
this issue and modify the statute to eliminate the third-adjacent channel distant separation
requirements for LPFM stations."
Nevertheless, it has taken a decade to revolve this issue.
Perhaps the history of LPFM policy making stands as another case that illustrates the
proposition that the FCC is not an independent agency, or an expert agency. Rather, it is at
bottom an agent of the Congress. Kennard attempted to act as an independent policy maker, as
may also the present Chairman this week, only to see his efforts undone, and the issue shelved
for a decade.
|House Passes Bill to Create Pilot Program
for Patent Cases
12/17. The House passed HR 628
| WW] by
a vote of 371-1. See, Roll
Call No. 651. This untitled bill establishes a pilot program to be
implemented in six unnamed U.S. District Courts to encourage enhancement of
judicial expertise in patent cases.
Rep. Darrell Issa (R-CA) and
Rep. Adam Schiff (D-CA) introduced this
bill on January 22, 2009. Although, previous Congresses had considered other
bills and proposals. The House passed an earlier version of HR 628 on March 17, 2009.
The Senate amended and passed this bill by unanimous consent, without debate, on
Monday, December 13, 2010. The House discussed the bill on Thursday, December
16. It then passed the Senate version of the bill without further amendment on
Friday, December 17. The bill is now ready for President Obama's signature.
Rep. Ron Paul (R-TX) cast the only vote
against the bill in the House.
Rep. Schiff (at right) stated in the House that
this bill "establishes a mechanism to steer patent cases to judges that have the desire
and the aptitude to hear such cases while preserving the principle of random assignment in order
to prevent forum shopping among the pilot districts". See, Congressional Record,
December 16, 2010, at Page H8538.
Rep. Judy Chu (D-CA) stated in the House
that "Patent litigation is complex and highly technical. This makes litigation
expensive, time consuming, and unpredictable. Moreover, the reversal rate of
district court decisions is high, hovering around 50 percent. The bill before us
today, H.R. 628, seeks to increase efficiency and consistency in patent and
plant variety protection litigation and reduce the reversal rate."
Rep. Ted Poe (R-TX) stated in the House
that "The premise underlying H.R. 628 is, succinctly stated, practice makes
perfect, or at least better. Judges who focus more attention on patent cases
will be expected to be better prepared to make decisions that can withstand
See also, Rep. Issa's
release, and substantially identical
release of Rep. Schiff.
Bill Summary. This bill creates a pilot program regarding the
assignment cases to Judges. It will last for ten years. It will operate in six
different judicial districts, to be designated by the Director of the
Administrative Office of the United States Courts (AOUSC).
In these six districts Judges can, in effect, avoid being assigned patent
cases, while those judges (including senior status judges) who opt in to hearing
patent cases, will be assigned those cases.
Specifically, it provides as follows:
"(A) those district judges of that district court who request to
hear cases under which 1 or more issues arising under any Act of Congress
relating to patents or plant variety protection are required to be decided, are
designated by the chief judge of the court to hear those cases;
(B) cases described in subparagraph (A) are randomly assigned to
the judges of the district court, regardless of whether the judges are
designated under subparagraph (A);
(C) a judge not designated under subparagraph (A) to whom a case is
assigned under subparagraph (B) may decline to accept the case; and
(D) a case declined under subparagraph (C) is randomly reassigned
to 1 of those judges of the court designated under subparagraph (A)."
The bill sets criteria to be applied by the AOUSC in selecting six districts.
The bill requires the AOUSC to write a report after five years.
Comment on Judicial Selection. There is another way that the issue
addressed by this bill could also be addressed. The President could appoint more
Judges who have greater familiarity with various technologies and scientific
fields, and experience in patent law. Also, to the extent that most District
Court Judges are actually picked by the Senators of the President's party,
Senators could select more such persons for the bench.
Currently, Presidents and Senators, both Democratic and Republican, select,
appoint, and confirm judicial nominees with particular concern for their
ideology, and positions on certain Constitutional issues, such as abortion,
school prayer, and Constitutional criminal procedure.
With the exception of the U.S. Court
of Appeals (FedCir), very few judges with backgrounds in science and
technology, or patent law, are being appointed to the District Courts or Courts
|This issue contains the following items:
• Congress Passes Low Power FM Bill
• Summary of HR 6533, the Community Radio Act of 2010
• History of LPFM Law and Policy Making
• House Passes Bill to Create Pilot Program for Patent Cases
• Rep. Mary Mack Introduces Resolution on Internet Governance
• Sen. Leahy to Introduce Forensic Sciences Bill
New items are highlighted in
|Sunday, December 19
The House will not meet.
The Senate will meet at 12:00 NOON. It will consider
the START treaty.
|Monday, December 20
The House will not meet.
EXTENDED TO JANUARY 31.
Deadline to submit initial
comments to the Library of Congress's (LOC) Copyright
Office (CO) in response to its Notice of Inquiry (NOI) regarding federal coverage of
sound recordings fixed before February 15, 1972.
See, notice in the Federal
Register, November 3, 2010, Vol. 75, No. 212, at Pages 67777-67781. This proceeding is LOC
Docket No. 2010-4. See also, story titled "Library of Congress Issues NOI on Extending
Copyright Act to Pre 1972 Sound Recordings" in
TLJ Daily E-Mail Alert No. 2,150,
November 8, 2010. See also,
in the Federal Register, December 1, 2010, Vol. 75, No. 230, at Pages
|Tuesday, December 21
The House will meet at 10:00 AM for
legislative business. The House might take up HR 5116
the "America COMPETES Reauthorization Act of 2010" and/or HR 3082
an omnibus appropriations bill.
10:30 AM. The Federal Communications Commission
(FCC) will hold an event titled "open meeting". The
includes adoption of two items: broadband internet access service (BIAS) rules and a 911
notice of inquiry (NOI). See, story titled "FCC Releases Agenda for December 21
Meeting" in TLJ Daily E-Mail Alert No. 2,179, December 15, 2010. Location:
FCC, Commission Meeting Room, 445 12th St., SW.
12:00 NOON - 2:00 PM. The DC Bar
Association will host an event titled "False Patent Marking: Now What?".
The speakers will be Elizabeth Winston
(Catholic University law school), Robert
Shaffer (Finnegan), Maureen Browne (Covington
& Burling). See,
U.S.C. § 292, regarding false marking. See also, the December 28, 2009,
[16 pages in PDF] of the U.S. Court of Appeals
(FedCir) in The Forest Group, Inc. v. Bon Tool Company construing Section 292. See
also, HR 4954 [LOC
an untitled bill, and HR 6352
WW], the "Patent
Lawsuit Reform Act of 2010"; both would amend Section 292; the House has passed
neither. And see, story titled "Representatives Introduce Bill to Amend Patent Act
Regarding Remedies for False Markings" in
TLJ Daily E-Mail Alert No.
2,067, March 30, 2010. The price to attend ranges from $40 to $55. For more information,
contact 202-626-3463. See,
notice. Location: DC Bar Conference Center, B-1 Level, 1250 H St., NW.
|Wednesday, December 22
No events listed.
|Thursday, December 23
No events listed.
|Friday, December 24
Christmas Day (observed). This is a federal holiday. See,
Office of Personnel Management's (OPM)
page titled "2010 Federal Holidays".
|Monday, December 27
Deadline to submit initial comments to the Federal
Communications Commission (FCC) in response to its notice of proposed rulemaking (NPRM)
regarding regulating the billing and notice practices of mobile service providers.
The FCC adopted and released this NPRM on October 14, 2010. It is FCC 10-180 in CG Docket
Nos. 10-207 and 09-158. See,
notice in the Federal Register, November 26, 2010, Vol. 75, No. 227, at Pages 72773-72777.
See also, story titled "FCC Adopts Bill Shock NPRM" in
TLJ Daily E-Mail
Alert No. 2,142, October 19, 2010.
Deadline to submit comments to the
Copyright Office (CO) in response to
its notice of proposed rulemaking (NPRM) regarding notices of termination of
certain grants of transfers and licenses of copyright under
17 U.S.C. § 203.
See, notice in
the Federal Register, November 26, 2010, Vol. 75, No. 227, at Pages
Deadline to submit comments to the Department of Transportation's (DOT)
Intelligent Transportation Systems Program Advisory Committee (ITSPAC) in
advance of its meeting on January 6-7, 2011, in Oakland, California. See,
notice in the
Federal Register, December 14, 2010, Vol. 75, No. 239, at Page 77955.
|Rep. Mary Mack Introduces Resolution on Internet
12/17. Rep. Mary Mack (R-CA), ,
introduced HRes 1775,
a resolution expressing the sense of the House that the US should not transfer
control of the internet to the United Nations (UN) and any other international
governmental organization. See also, Rep. Mack's
"Resolved, That the House of Representatives--
(1) calls on the President to continue to oppose any effort to
transfer control of the Internet to the United Nations or any other
international governmental entity; and
(2) calls on the President to--
(A) recognize the need for, and pursue a
continuing and constructive dialogue with the international community on, the
future of Internet governance; and
(B) advance the values of a free Internet in the
broader trade and diplomatic conversations of the United States."
It also recites reasons. For example, "some nations that advocate radical
change in the structure of Internet governance censor the information available
to their citizens through the Internet and use the Internet as a tool of
surveillance to curtail legitimate political discussion and dissent, and other
nations operate telecommunications systems as state-controlled monopolies or
highly-regulated and highly-taxed entities".
Moreover, it states, "some nations in support of transferring Internet
governance to an entity affiliated with the United Nations, or another
international governmental entity, might seek to have such an entity endorse
national policies that block access to information, stifle political dissent,
and maintain outmoded communications structures".
This resolution also states that "the structure and control of Internet
governance has profound implications for homeland security, competition and
trade, democratization, free expression, access to information, privacy, and the
protection of intellectual property, and the threat of some nations to take
unilateral actions that would fracture the root zone file would result in a less
functional Internet with diminished benefits for all people".
It was referred to the House Foreign Affairs
Committee (HFAC). Rep. Mary Mack is not a member. However, she will be the Chairman
of the House Commerce Committee's (HCC)
Subcommittee on Commerce in the 112th Congress. Rep.
Ileana Ros-Lehtinen (R-FL) will be the Chairman of the HFAC in the 112th Congress.
Rep. Howard Berman (D-CA) will be
the ranking Democrat.
|Sen. Leahy to Introduce Forensic
12/17. Sen. Patrick Leahy (D-VT), the Chairman of
the Senate Judiciary Committee (SJC), released a
statement in which he disclosed that "it is my intention to introduce legislation
early next year" regarding forensic science in the criminal justice system.
He described his bill in broad strokes -- federal grant funding, standards, training and
accreditation -- but did not explain how his bill might relate to acquiring, analyzing and
preserving data from computers and other digital storage media, or data recovery generally.
He said nothing about computer forensics at the Department of Justice's (DOJ)
Computer Crimes and Intellectual Property Section's
(CCIPS) cyber crime lab. See, CCIPS
manual titled "Searching & Seizing Computers and Obtaining Electronic Evidence
in Criminal Investigations".
Also, he said nothing about pre-trial discovery of forensic evidence, or use of forensic
evidence in civil or criminal judicial proceedings.
Sen. Leahy said that his bill "will require that all relevant personnel who perform
forensic work for any laboratory or agency that gets federal money become certified in their
fields, which will mean meeting standards in proficiency, education, and training."
He also said that it "will set up a rigorous process to determine the most serious
needs for peer-reviewed research in the forensic science disciplines and will set up grant
programs to fund that research. The bill will also provide for this research to lead to
appropriate standards and best practices in each discipline. It will also fund research
into new technologies and techniques that will allow forensic testing to be done more quickly,
more efficiently, and more accurately."
The SJC held a hearing titled "The Need to Strengthen Forensic Science in the United
States: The National Academy of Science's Report on a Path Forward" on March 18, 2009.
Much of the hearing focuses on fingerprint identification, DNA analysis, and ballistics.
The National Academy of Sciences (NAS) wrote
a report, which served as the foundation of this hearing. However, the report is not a part of the
hearing record. The NAS wants to sell digital downloads for $27.50.
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