2/16. House and Senate negotiators reached agreement on spectrum legislation that would give the Federal Communications Commission (FCC) authority to conduct incentive auctions. It would also reallocate the D Block for an interoperable public safety broadband network, and provide for the creation, governance, and funding of such a public safety network. It would also include the "Next Generation 9-1-1 Advancement Act" and other provisions.

This compromise spectrum bill will be added to the conference report [270 pages in PDF] on HR 3630 [LOC | WW], the "Temporary Payroll Tax Cut Continuation Act of 2011". The House is scheduled to consider HR 3630 on Friday, February 17.

This huge bill is to be renamed the "Middle Class Tax Relief and Job Creation Act of 2012". The spectrum and other communications provisions are in Title VI, at pages 118-266.

See also, the House Commerce Committee (HCC) Republicans' summary of the bill, and the HCC Democrats' summary of the bill. The Senate Commerce Committee (SCC) Democrats produced a shorter summary.

The spectrum provisions of the conference report borrow from earlier House language (that is, the language in the version of HR 3630 passed by the House in December) for the incentive auction authority, and from the Senate language (that is, S 911 as approved by the SCC in June of 2011) for the D Block and public safety network provisions. However, the conference report increases FCC authority with respect to unlicensed spectrum over what was in the House bill last year, and decreases the limitations on the FCC ability to write auction rules.

Rep. Fred Upton (R-MI), the Chairman of the HCC, and Rep. Greg Walden (R-OR), the Chairman of the HCC's Subcommittee on Communications and Technology stated in a joint release that "As Americans' reliance on wireless devices such as smartphones and tablets increases, so has the demand for additional wireless broadband. After years of discussion, negotiations, and hearings, this legislation provides the FCC the necessary authority to conduct these auctions. We struck a fine balance to make more efficient use of the airwaves while also providing necessary protections for broadcasters".

Sen. Charles Schumer (D-NY) stated in SCC Democrats' release that "This deal is shaping up to be a big win for our first responders ... More than a decade after 9/11, we are going to finally establish the national network that will let emergency workers talk to each other so we can avoid repeating the communication failures of that tragic day. We have come close to getting this done before, and this time we refused to take no for an answer."

Rep. Henry Waxman (D-CA), the ranking Democrat on the HCC, stated in a release that "I will support this conference report -- but with reservations" about the non-spectrum related provisions of the bill.

He praised the spectrum component. He stated that "These negotiations have resulted in legislation that will make new spectrum available for smartphones and tablets, will create a nationwide band of spectrum that can be used for Super WiFi and other unlicensed uses, and will fund the build-out of an interoperable broadband network for first responders. Establishing the public safety network allows us to complete the major piece of unfinished business from the attacks of 9/11. These provisions will promote innovation and economic growth while contributing $15 billion to pay for this legislation."

Legislative History. On June 8, 2011, the SCC approved, over opposition from some Republicans, S 911 [LOC | WW], the "Strengthening Public-safety and Enhancing Communications Through Reform, Utilization, and Modernization Act" or "SPECTRUM Act".

On December 1, 2011, the HCC's Subcommittee on Communications and Technology approved, over opposition from some Democrats, a discussion draft [113 pages in PDF] of the "Jumpstarting Opportunity with Broadband Spectrum Act of 2011" or "JOBS Act of 2011". See, story titled "House Communications Subcommittee Approves Spectrum Bill" in TLJ Daily E-Mail Alert No. 2,317, December 1, 2011, for summaries of, and hyperlinks to, amendments approved at that meeting.

See also, story titled "House Commerce Committee Democrats Seek Delay of Spectrum Bill Mark Up" in TLJ Daily E-Mail Alert No. 2,316, November 30, 2011. In addition, this discussion draft was included as Title IV of HR 3630, an earlier version of which the House passed on December 13, 2011. However, that version of the bill was not enacted into law.

The HCC Democrats introduced a competing spectrum bill, HR 3509 [LOC | WW], the "Wireless Innovation and Public Safety Act of 2011".

Conference Report. On Thursday, February 16, negotiators announced a compromise bill, to be made part of the conference report [270 pages in PDF] on HR 3630 [LOC | WW], the "Temporary Payroll Tax Cut Continuation Act of 2011", which is to be renamed the "Middle Class Tax Relief and Job Creation Act of 2012".

Thursday night, the House Rules Committee (HRC) met to hold a hearing on, and to adopt a rule for consideration of, this conference report. Title VI of the conference report is the spectrum bill. There was no discussion of Title VI at the HRC meeting.

The rule makes consideration by the House of the conference report in order on February 17.

2/16. Title VI of the conference report [270 pages in PDF] on HR 3630 [LOC | WW], the "Temporary Payroll Tax Cut Continuation Act of 2011", renamed the "Middle Class Tax Relief and Job Creation Act of 2012", contains the bipartisan and bicameral compromise spectrum provisions.

The House is scheduled to consider HR 3630 on Friday, February 17.

Public Safety Network. This bill provides for reallocation of the D Block for an interoperable public safety broadband network. It provides $7 Billion in funding.

The bill provides for the public safety network to be created and run by a new First Responder Network Authority (FRNA), which would be governed by a board largely appointed by Secretary of Commerce. Nominally, it would be a part of the Department of Commerce's (DOC) National Telecommunications and Information Administration (NTIA).

The D Block is 10 megahertz of paired spectrum (758-763 MHz and 788-793 MHz). See also, Section 6001 of the bill, at page 118.

The FCC previously attempted but failed to auction the D Block in the 700 MHz auction (the FCC's Auction No. 73) as one nationwide license, subject to a Public/Private Partnership. The plan was for a commercial licensee to build a nationwide broadband interoperable network for use by public safety entities. This licensee would then have had preemptible secondary access to the spectrum. The FCC closed this auction on March 18, 2008. However, no bidder bid the reserve price for the D Block.

Section 6101 (at page 128) provides that the FCC "shall reallocate the 700 MHz D block spectrum for use by public safety".

Section 6201 (at pages 1129-130) provides that the FCC "shall reallocate and grant a license to the First Responder Network Authority for the use of the 700 MHz D block spectrum and existing public safety broadband spectrum".

Section 6204 (at page 136) provides that this First Responder Network Authority (FRNA) is "an independent authority within the NTIA". This FRNA will be charged with creating and governing the public safety broadband network.

Furthermore, the FRNA shall be "headed by a Board, which shall consist of the Secretary of Homeland Security, Attorney General, Director of the OMB, and twelve members appointed by the Secretary of Commerce, including "not fewer than 3 individuals who have served as public safety professionals". Terms are three years.

Section 6203 provides for an FCC "Technical Advisory Board for First Responder Interoperability". The FCC Chairman will appoint its members. Its responsibility is to "develop recommended minimum technical requirements to ensure a nationwide level of interoperability for the nationwide public safety broadband network".

Section 6207 and 6208 provide for funding of the FRNA.

Section 6212 bars the FRNA from providing "commercial telecommunications or information services directly to consumers".

Incentive Auctions. The bill gives the FCC authority to conduct incentive auctions. An incentive auction provides for the sharing of spectrum auction proceeds with the licensees who voluntarily relinquish that spectrum. It provides a financial incentive for television broadcasters and other licensees to relinquish some of their spectrum.

The incentive auction provisions are in Subtitle D, at Sections 6401-6414, and pages 173-214. However, some provisions not related to incentive auctions are also included in this subtitle.

Section 6402 (at pages 178-179) provides in a clause (i) that the FCC "may encourage a licensee to relinquish voluntarily some or all of its licensed spectrum usage rights in order to permit the assignment of new initial licenses subject to flexible-use service rules by sharing with such licensee a portion, based on the value of the relinquished rights as determined in the reverse auction required by clause (ii)(I), of the proceeds (including deposits and upfront payments from successful bidders) from the use of a competitive bidding system under this subsection."

Then a clause (ii)(I) provides that the FCC "may not enter into an agreement for a licensee to relinquish spectrum usage rights in exchange for a share of auction proceeds under clause (i) unless -- (I) the Commission conducts a reverse auction to determine the amount of compensation that licensees would accept in return for voluntarily relinquishing spectrum usage rights".

Section 6404 (at pages 196-197) provides that the FCC "may not prevent a person from participating in a system of competitive bidding under this subsection if such person" meet certain enumerated requirements.

These requirements are that the bidder "complies with all the auction procedures and other requirements to protect the auction process" and "meets the technical, financial, character, and citizenship qualifications". But, this does not prevent the FCC from adopting and enforcing "rules of general applicability, including rules concerning spectrum aggregation that promote competition".

This restriction upon the FCC is not as broad as the one that House Republicans sought last year.

Section 6406 (at pages 197-199) provides that the FCC "shall begin a proceeding to modify part 15 of title 47, Code of Federal Regulations, to allow unlicensed U–NII devices to operate in the 5350–5470 MHz band".

Section 6407 (at pages 199-200) provides that the FCC is not prevented "from using relinquished or other spectrum to implement band plans with guard bands", that the FCC "may permit the use of such guard bands for unlicensed use".

However, "Such guard bands shall be no larger than is technically reasonable to prevent harmful interference between licensed services outside the guard bands", and the FCC "may not permit any use of a guard band that the Commission determines would cause harmful interference to licensed services".

This expands the FCC authority to allocate spectrum for unlicensed use over the House bill last year. However, FCC Chairman Julius Genachowski had sought much wider authority to allocate spectrum for unlicensed use.

Other Provisions. Subtitle E (beginning at page 214) is the "Next Generation 9-1-1 Advancement Act of 2012". See, related stand alone bill, HR 2629 [LOC | WW], the "Next Generation 9-1-1 Advancement Act of 2011".

Subtitle F (beginning at page 235) pertains to the Telecommunications Development Fund.

Subtitled G (beginning at page 236) pertains to federal spectrum relocation.

The bill does not contain language, sought by House Republicans last year, constraining the FCC with respect to network neutrality.

2/16. Julius Genachowski, Chairman of the Federal Communications Commission (FCC), stated in a release that "Congress is poised to take an important step in making the U.S. the first country in the world to adopt the incentive auctions concept, an innovative, market-based approach to unleash more spectrum for mobile broadband."

He added that "I'm pleased that Congress has recognized the vital importance of freeing up more spectrum for mobile broadband, both licensed and unlicensed, although the legislation could limit the FCC's ability to maximize the amount and benefits of recovered spectrum."

Genachowski delivered a political and partisan speech at the Consumer Electronics Show (CES) in Las Vegas in January in which he criticized Republican spectrum proposals, and praised Democratic proposals, particularly with respect to FCC authority to allocate spectrum for unlicensed use. See, story titled "Genachowski Addresses Incentive Auctions and Unlicensed Spectrum" in TLJ Daily E-Mail Alert No. 2,326, January 13, 2012.

Genachowski added that "The FCC will continue to study the legislation, and if adopted, we look forward to working with Congress and all stakeholders to implement this important grant of authority."

Steve Largent, head of the CTIA, stated in a release that "Today's action to make repurposed broadcast spectrum available for wireless broadband service is vital to ensuring America's wireless industry remains the world's leader in the deployment of 4G services."

"As the Administration, Members of Congress, the FCC and other policymakers have recognized, making additional spectrum available for wireless broadband services will spur infrastructure investment, encourage job creation and foster innovation. Studies suggest that this process could generate infrastructure investments of up to $53 billion, provide as much as $151 billion in GDP and create as many as 771,000 jobs by 2016. In addition, incentive auctions will generate billions in revenue for the U.S. Treasury."

"This additional spectrum will help CTIA's members meet Americans' voracious appetite for mobile Internet anywhere and anytime", said Largent.

Gordon Smith, head of the National Association of Broadcasters (NAB), stated in a release that the "NAB salutes the tireless efforts of Congress to ensure that local broadcasters have a vibrant and robust future. Special thanks go to Chairmen Upton and Walden for steering this bill to conclusion, and to Reps. Dingell and Bilbray for a critically important amendment guaranteeing continued viewer access to TV station signals along the Canadian and Mexican borders."

He stated that "Tens of millions of Americans rely every day on local TV broadcasters for news, entertainment, sports and life-saving weather warnings. We look forward to working with Congress and the FCC to implement an incentive auction program that does not jeopardize that service.

Walter McCormick, head of the US Telecom, stated in a release that "We applaud Chairmen Upton and Walden for their longstanding commitment to making available much-needed spectrum to consumers, and we commend House-Senate negotiators for crafting legislation that will pave the way for increased investment in both wireless and wireline infrastructure, as well as expanded economic growth and job creation for our nation. As 99% of all wireless calls are transported via wireline networks, the 26-fold growth in mobile traffic that is expected by 2015 will spur robust investment in fiber-based broadband infrastructure. This legislation is a win-win for consumers, for wireless carriers, for wireline carriers, and for the nation – in that it will produce new revenues for the federal government without raising taxes."

Ed Black, head of the Computer and Communications Industry Association (CCIA), stated in a release that "Today's agreement on unlicensed spectrum provides new 'public opportunity' airwaves for next generation innovation by tech entrepreneurs and will help meet the growing demand for wireless Internet access." Also, "The incentive auctions authorized today will deliver more bandwidth for commercial wireless services."

The CCIA's Cathy Sloan added in this release that "We are glad to see that the FCC will retain some discretion to assign licenses in the public interest and to prevent monopolization of licensed spectrum."

Matt Wood of the Free Press stated in a release that "Unfortunately, reports on today's deal also suggest that harmful provisions about auction design remain in the text, though the damage may not be as great as we initially feared. We are glad that the agreement would preserve at least some of the tools the FCC needs to assign licenses in the public interest and prevent further erosion of competition among wireless providers. Parts of the bill the House passed in December would all but ensure that AT&T and Verizon lock up all the most valuable spectrum in any future auction, further tightening the effective duopoly these companies already hold. Bidder-eligibility language aside, the Commission would retain general authority to adopt rules encouraging competitive entry and growth by providers of all sizes."

Harold Feld of the Public Knowledge stated in a release that "“We commend the negotiators from the Senate and House for coming up with a bill that will preserve the future of unlicensed spectrum while also allowing for the Federal Communications Commission to have flexibility in creating spectrum auctions to protect competition."

Gary Shapiro, head of the Consumer Electronics Association (CEA), stated in a release that the "we commend the Conferees for including voluntary spectrum auctions in the conference report and urge quick passage by the House and Senate."

The House will meet at 9:00 AM for legislative business. The House will consider the conference report on HR 3630 [LOC | WW], the "Temporary Payroll Tax Cut Continuation Act of 2011". This bill will be the vehicle for House passage of the bipartisan and bicameral compromise spectrum bill. See, Rep. Cantor's schedule for the week.

The Senate will meet at 10:00 AM. It will resume consideration of S 1813 [LOC | WW], a huge bill pertaining to highways and surface transportation. Sections 2301-2306 pertain to the National Intelligent Transportation System, and a 5.9 GHz short range vehicle to vehicle and vehicle to infrastructure communications systems.

Supreme Court conference day. See, calendar. Closed.

9:00 AM. The American Bar Association (ABA) will host a teleconferenced event titled "Global Antitrust Developments Series: India & China". The speakers will be Catriona Hatton (Hogan Lovells), Kirtikumar Mehta, and Adrian Emch (Hogan Lovells, Beijing office, and Peking University's IP School). No CLE credits. See, notice.

9:30 AM. The House Judiciary Committee's (HJC) Subcommittee on Intellectual Property, Competition and the Internet will hold a hearing titled "Litigation as a Predatory Practice". See, notice. Location: Room 2147, Rayburn Building.

9:30 - 11:30 AM. The House Oversight and Government Reform Committee (HOGRC) Subcommittee on Technology, Information Policy, Intergovernmental Relations and Procurement Reform will hold a hearing titled "Examining Duplicative IT Investments at DOD and DOE". The HOGRC will webcast this hearing live. Location: Room 2154, Rayburn Building.

9:30 AM. The House Science Committee (HSC) will hold a hearing titled "An Overview of the Administration’s Federal Research and Development Budget for Fiscal Year 2013". The witness will be John Holdren (head of the EOP's Office of Science and Technology Policy. See, notice. Location: Room 2318, Rayburn Building.

10:00 AM - 4:30 PM. The U.S. Patent and Trademark Office (USPTO) will host a public event to discuss and receive public comments on proposed rules changes that implement HR 1249 [LOC | WW], the "Leahy Smith America Invents Act", or "AIA", which was signed into law in September of 2011. See, USPTO release and AIA web page. See also, stories titled "USPTO Announces America Invents Act Implementation Rulemaking Proceedings" in TLJ Daily E-Mail Alert No. 2,322, January 9, 2012, and "USPTO to Hold Public Meetings on AIA Rules Changes" in TLJ Daily E-Mail Alert No. 2,323, January 10, 2011. Location: USPTO Campus, Alexandria, VA.

11:00 AM. The American Intellectual Property Law Association (AIPLA) will hold a teleconferenced news briefing regarding The Association for Molecular Pathology v. Myriad Genetics, Inc., Sup. Ct. No. 11-725. See, registration page. The issue in this case is whether a human gene is eligible for patenting. See, July 29, 2011, opinion [105 pages in PDF] of the U.S. Court of Appeals (FedCir). See also, the AIPLA's amicus curiae brief for the Court of Appeals. The Supreme Court's docket indicates that it will decide whether or not to grant the petition for writ of certiorari on February 17. For more information, contact Lorri Ragan at 703-412-1308 or lragan at aipla dot org.

12:00 NOON - 1:00 PM. Mark Ryan, the new Director of Litigation of the Department of Justice's (DOJ) Antitrust Division, will speak at an on site and teleconferenced event hosted by the American Bar Association (ABA). No CLE credits. Free. See, notice. Location: Kirkland & Ellis, 655 15th St., NW.

Deadline to submit comments to the National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) regarding its draft SP 800-117 Rev. 1 [26 pages in PDF] titled "Guide to Adopting and Using the Security Content Automation Protocol (SCAP) Version 1.2".

Deadline to submit comments to the National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) regarding its draft NIST IR-7817 [22 pages in PDF] titled "A Credential Reliability and Revocation Model for Federated Identities".

Deadline to submit comments to the National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) regarding its draft NIST IR-7799 [75 pages in PDF] titled "Continuous Monitoring Reference Model Workflow, Subsystem, and Interface Specifications".

Deadline to submit comments to the National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) regarding its draft NIST IR-7756 [35 pages in PDF] titled "CAESARS Framework Extension: An Enterprise Continuous Monitoring Technical Reference Architecture".

Deadline to submit comments to the National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) regarding its draft NIST IR-7800 [29 pages in PDF] titled "Applying the Continuous Monitoring Technical Reference Model to the Asset, Configuration, and Vulnerability Management Domains".

Deadline for the Federal Trade Commission (FTC) to file its opposition to Electronic Privacy Information Center's (EPIC) Motion for Temporary Restraining Order and Preliminary Injunction [30 pages in PDF] with the U.S. District Court (DC). This action pertains to whether Google's new privacy policy, scheduled to take effect on March 1, violates the FTC's Decision and Order [7 pages in PDF] dated October 13, 2011. See, story titled "EPIC Sues FTC to Compel Enforcement of Google Privacy Order" in TLJ Daily E-Mail Alert No. 2,338, February 16, 2012.

Washington's Birthday. This is a federal holiday. See, OPM list of 2012 federal holidays.

The House will not meet on the week of Monday, February 20, through Friday, February 24.

The Senate will not meet on the week of Monday, February 20, through Friday, February 24.

The House will not meet.

The Senate will not meet.

12:15 - 2:00 PM. The Federal Communications Bar Association's (FCBA) Engineering and Technical Practice Committee will host a brown bag lunch. The topic will be three federal advisory committees: the President's Council of Advisors on Science and Technology (PCAST), the NTIA's Commerce Spectrum Management Advisory Committee (CSMAC) and the FCC's Technology Advisory Committee (TAC). For more information, contact Steve Sharkey at steve dot sharkey at t-mobile dot com. Location: T-Mobile, Suite 800, 601 Pennsylvania Ave., NW, North Building.

12:15 - 2:00 PM. The Federal Communications Bar Association (FCBA) will host a brown bag lunch titled "The First Amendment in Telecom Law". The speakers will be Jacob Lewis (FCC Associate General Counsel), Chuck Tobin (Holland & Knight), Coriell Wright (Free Press), Megan Brown (Wiley Rein). For more information, contact Drew Shenkman at drew dot shenkman at hklaw dot com or Brendan Carr at Bcarr at wileyrein dot com.). Location: Holland & Knight, Suite 100, 2099 Pennsylvania Ave., NW.

Deadline for the Electronic Privacy Information Center's (EPIC) to file its reply to the Federal Trade Commission's (FTC) opposition to its Motion for Temporary Restraining Order and Preliminary Injunction [30 pages in PDF]. This action pertains to whether Google's new privacy policy, scheduled to take effect on March 1, violates the FTC's Decision and Order [7 pages in PDF] dated October 13, 2011. See, story titled "EPIC Sues FTC to Compel Enforcement of Google Privacy Order" in TLJ Daily E-Mail Alert No. 2,338, February 16, 2012.

Ash Wednesday.

The House will not meet.

The Senate will not meet.

The House will not meet.

The Senate will not meet.

10:00 - 11:30 AM. The Information Technology and Innovation Foundation (ITIF) will host an event titled "Eddie Lazarus Reflects on a Dramatic Tenure as Chief of Staff of the FCC". See, notice. Location: ITIF/ITIC: Suite 610, 1101 K St., NW.

The House will not meet.

The Senate will not meet.

Supreme Court conference day. See, calendar. Closed.

8:30 AM - 4:00 PM. The Department of Defense's (DOD) Defense Intelligence Agency Advisory Board will hold a closed meeting. See, notice in the Federal Register, Vol. 77, No. 10, Tuesday, January 17, 2012, at Pages 2277-2278. Location: Boling Air Force Base.

8:45 AM - 1:30 PM. The George Mason University (GMU) law school will host a conference titled "The Digital Inventor: How Entrepreneurs Compete on Platforms". There will be two panel discussions, titled "Platforms, Modularity, and Complementary Goods" and "Patent Litigation: Software Patents, Licensing, and Mobile OS Platforms". There will also be several presentations and speeches, including "Design, Institutions, and the Evolution of Platforms" and "Why Walled Gardens Isn't Inconsistent with Open Innovation: Understanding How Ecosystems Management Promotes Progress". CLE credits. Prices vary. Location: GMU law school, 3301 N. Fairfax Dr., Arlington, VA.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Public Notice (PN) [21 pages in PDF] regarding Auction 901, which will auction high cost universal service subsidies through reverse competitive bidding. It is also titled "Mobility Fund Phase I Auction". The FCC released this PN on February 2, 2012. It is DA 12-121 in AU Docket No. 12-25. See also, notice in the Federal Register, Vol. 77, No. 28, Friday, February 10, 2012, at Pages 7152-7162.

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