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December 19, 2010, 1:00 PM, Alert No. 2,183.
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Congress Passes Low Power FM Bill

12/17. Rep. Mike Doyle (D-PA) and Rep. Lee Terry (R-NE) introduced HR 6533 [LOC | 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 [LOC | 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, House 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 [LOC | WW].

The House passed HR 6533 by voice vote after a brief floor discussion.

Rep. Mike DoyleRep. 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 supporting it."

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 sought".

Gordon Smith (at right), head of the NAB, stated in a release after passage 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 release that 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 during emergencies."

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 of 2010

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, 47 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 Making

12/18. Low power FM (LPRM) broadcasting law and policy making has long and sometimes tempestuous history.

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 18 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. See, Section 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 [LOC | 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. Adam SchiffRep. 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 appellate scrutiny."

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 of Appeals.

In This Issue
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
Washington Tech Calendar
New items are highlighted in red.
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, extension notice in the Federal Register, December 1, 2010, Vol. 75, No. 230, at Pages 74749-74750.

Tuesday, December 21

The House will meet at 10:00 AM for legislative business. The House might take up HR 5116 [LOC | WW], the "America COMPETES Reauthorization Act of 2010" and/or HR 3082 [LOC | WW], an omnibus appropriations bill.

10:30 AM. The Federal Communications Commission (FCC) will hold an event titled "open meeting". The agenda [PDF] 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, 35 U.S.C. 292, regarding false marking. See also, the December 28, 2009, opinion [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 | WW]], an untitled bill, and HR 6352 [LOC | 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) web 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 72771-72773.

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 Governance

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 release.

It provides,

"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 Sciences Bill

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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