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Saturday, February 18, 2012, Alert No. 2,340.
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House and Senate Pass Spectrum Bill

2/17. The House and Senate passed the conference report [270 pages in PDF] on HR 3630 [LOC | WW], the "Middle Class Tax Relief and Job Creation Act of 2012". The House passed the bill by a vote of 293 to 132. See, Roll Call No. 72. The Senate passed the bill by a vote of 60 to 36. See, Roll Call No. 22.

This bill gives the Federal Communications Commission (FCC) authority to conduct incentive auctions. It also reallocates the D Block for an interoperable public safety broadband network, and provides for the creation, governance, and funding of such a public safety network. It also includes the "Next Generation 9-1-1 Advancement Act" and other provisions.

The spectrum and other communications provisions are in Title VI, at pages 118-266.

In the House, Republicans voted 146 to 91. Democrats voted 147 to 41.

Democratic members of the House Commerce Committee (HCC) voted unanimously for the bill.

HCC Republicans were divided. While Rep. Fred Upton (R-MI), Rep. Greg Walden (R-OR), and many others voted yes, many voted no, including Rep. Joe Barton (R-TX), Rep. Marsha Blackburn (R-TN), Rep. Michael Burgess (R-TX), Rep. Phil Gingrey (R-GA), Rep Mike Pompeo (R-KS), Rep. Bill Cassidy (R-LA), Rep. David McKinley (R-WV), Rep. Cory Gardner (R-CO), Rep. Pete Olson (R-TX), and Rep. Morgan Griffith (R-VA) voted no. Rep. Mary Mack (R-CA) did not vote.

In the Senate, voting correlate more strongly with party. Only fourteen Republicans voted for the bill. However, five of twelve Republicans on the Senate Commerce Committee (SCC) voted for the bill: Sen. Kelly Ayotte (R-NH), Sen. Dean Heller (R-NV), Sen. Olympia Snowe (R-ME), Sen. Roger Wicker (R-MS), and Sen. Mark Rubio (R-FL).

Only six Democrats voted no, including Sen. Mark Warner (D-VA), a member of the SCC.

However, the spectrum provisions are just one part of this huge bill, which also dealt with many significant and controversial tax issues. Senators' and Representatives' voting decisions were also affected by these other provisions.

For example, Sen. Warner gave a speech in the Senate in which he explained his reasons for voting no. None pertained to the spectrum provisions.

Similarly, Rep. Barton explained his opposition in a release: "We should shoot straight with the American people. We are taking money away from the Social Security Trust Fund and we are substituting an IOU that may or may not ever be repaid. This is nothing more than a quick fix". See also, YouTube video of floor speech, in which he did not mention spectrum.

Interoperable Public Safety Broadband Network. This bill provides for reallocation of the D Block (10 megahertz of paired spectrum at 758-763 MHz and 788-793 MHz) 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).

Vice President Joe Biden released a statement regarding the public safety network component of the bill: "After 9/11, we pledged that our cops, firefighters and EMTs would have the technology they need to stay safe and do their jobs. Part of that promise included deploying a nationwide, interoperable broadband network for our first responders. Today we made good on that overdue promise. First responders put their lives on the line to protect us every day, and the least we can do is ensure that they have the dedicated bandwidth they need to communicate with each other. It’s going to save lives and help keep our neighborhoods safe."

Who Participates in 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, such as TV broadcasters, who voluntarily relinquish that spectrum.

One of the contentious issues in the Congress has been how the FCC might auction such spectrum. The bill limits the FCC's ability to limit participation in these spectrum auctions.

The key but vague language is in Section 6404, at pages 196-197. It  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, the bill adds that this does not prevent the FCC from adopting and enforcing "rules of general applicability, including rules concerning spectrum aggregation that promote competition".

FCC Chairman Julius Genachowski had wanted broader discretion than this bill allows. House Republicans and large carriers had wanted to further restrict the FCC.

AT&T did not want to be excluded from bidding in these auctions. Jim Cicconi of AT&T stated in a release that "there has been much focus in recent weeks on whether the FCC should or should not be able to exclude qualified wireless carriers from bidding in these spectrum auctions."

He wrote that "The final legislation speaks clearly on this point: the FCC may not do so as part of any auction proceeding. Instead, it could only make such a decision through a separate public rulemaking with general industry applicability, and not through the backdoor of special auction rules. This provides procedural safeguards, and also an opportunity for a court challenge. We take the FCC Chairman at his word when he says there is no intent to have closed auctions that deny AT&T and other carriers the ability to fairly and fully participate, but we also feel it important that Congress has now made its views clear as well."

Matt Wood of the Free Press stated in a release that "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." He wrote that the final bill preserves "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".

Harold Feld of the Public Knowledge (PK) stated in a release that "We got a partial win. The law does take away the FCC's ability to prevent anybody who meets the financial, technical, and character rules from participating in ``any system of competitive bidding.´´ But it includes a clause that the FCC can still make ``rules of general applicability, including rules concerning spectrum aggregation that promote competition.´´"

He offered an interpretation. This language "means the FCC could do any of the following. It could impose an absolute limit on how much spectrum anyone could have (called a ``spectrum cap´´). A company could still participate in an auction, but if it went over the limit it would need either to get rid of some other spectrum or not get the new licenses. Also, the FCC could set a rule for any specific auction that prevents any one company from winning too much (as happened in the 700 MHz auction, where Verizon and AT&T won most of the licenses). For example, the FCC could say ``No one bidder is allowed to win more than 20% of the licenses.´´ That would be a rule of general applicability, and would still prevent the largest companies from getting everything." (Parentheses in original.)

Vonya McCann of Sprint stated in a release that "all wireless carriers -- small, regional and large -- should have a meaningful chance to participate in wireless spectrum auctions. While we didn't see the need to amend the statute, the compromise language approved by the conferees preserves the FCC's ability to promote competition as it conducts future wireless spectrum auctions."

Unlicensed Spectrum Use. The House Commerce Committee (HCC) Democrats released a summary that states that the bill, first, "gives the FCC the authority to preserve existing TV white spaces".

Second, the bill "gives the FCC the authority to optimize these white spaces for unlicensed use by consolidating them into more optimal configurations through band plans".

Third, the bill "gives the FCC the authority to use part of the spectrum relinquished by TV broadcasters in the incentive auction to create nationwide guard bands that can be used for unlicensed use, including in high-value markets that currently have little or no white spaces today. Nationwide, unlicensed access to guard bands will enable innovation, promote investment in new wireless services, and enhance the value of licensed spectrum by protecting against harmful interference and allowing carriers to ``off-load´´ data to alleviate capacity concerns."

Dan Reed of Microsoft stated in a release that the spectrum provisions of the bill give the FCC "flexibility to enable unlicensed use in the TV bands as it auctions spectrum for licensed use. The agreement ensures that the FCC has the authority to preserve existing vacant channels in the TV band, the ``TV white spaces,´´ implement guard bands and allow unlicensed use there, implement the FCC's previous white spaces order, and reconfigure the spectrum in order to maximize unlicensed use of the band. The FCC must now build on its 2008 and 2010 decisions promoting unlicensed broadband use in the television bands".

He concluded that "As the FCC prepares to auction spectrum for licensed use, it must now seize the opportunity at hand and make sufficient unlicensed spectrum available as well."

Harold Feld of the Public Knowledge stated in a release that the meaning of the relevant provisions "will depend a lot on implementation by the FCC when the auctions finally happen. But the critical thing this means is that there will absolutely be unlicensed TV white space everywhere in the country, which is what we needed to keep developers investing in the technology."

What the legislation does is set up a "white spaces for white spaces" swap. The bill makes it clear that the FCC can have "gaurd bands" when it designs the new wireless service from reclaimed broadcast spectrum, and that it can put unlicensed spectrum in the guard bands. The bill also makes it clear that nothing is meant to affect the use of TV white spaces in the remaining broadcast band. If a lot of broadcasters cash out, that will eliminate a lot of existing TV white space (because the bands empty channels will either be filled by the surviving broadcasters or combined with other stuff to be auctioned off), but it will create more guardband space. If broadcasters like staying broadcasters and don't cash out, then we will still have the TV white space we have now.

What this means is that all the people building and deploying the new Superwifi devices can keep doing so, knowing that one way or another they will still work. Meanwhile, because the gaurd band use doesn't count against the budget score as spectrum "given away," the folks who wanted to auction everything can claim (as they are doing) that they stopped the FCC from "giving awayspectrum." (We will pause to consider the peculiar world view that says letting the public use the public airwaves for free, it's a "give away," but when you pay broadcasters billions of dollars to give back the licenses to use the public airwaves they got for free, that's being "fiscally responsible.")

Mary Brown of Cisco stated in a release that "Cisco is very pleased that Congress has asked the National Telecommunications and Information Administration and the Federal Communications Commission to evaluate whether additional shared spectrum could be made available for Wi-Fi technologies at 5 GHz. Wi-Fi is shouldering
increasing responsibility for delivering traffic. In addition to the huge role Wi-Fi plays at the edge of fixed networks, offloading of mobile traffic to Wi-Fi networks is increasing. By 2016, 22% of global mobile traffic will be offloaded to Wi-Fi at the edge."

Senate Confirms Jordan for 11th Circuit

2/15. The Senate confirmed Judge Adalberto Jordan to be a Judge of the U.S. Court of Appeals (11thCir) by a vote of 94-5. See, Roll Call No. 19.

This is not one of President Obama's more controversial nominations. Sen. Mark Rubio (R-FL) supported this nomination. The 11th Circuit includes the state of Florida.

However, Senate Republicans delayed consideration of this nomination, forced Democrats to invoke cloture, and then subjected the Senate to three days of consideration. This suggests that President Obama may face increased difficulty in obtaining confirmation of some other judicial nominees in the remaining months of the 112th Congress.

Republicans cited President Obama's assertion of authority to make recess appointments not during a "Recess of the Senate" as a cause for heightened scrutiny of judicial nominees. On January 4, 2012, President Obama appointed, without the advice and consent of the Senate, several persons, including Richard Cordray to be Director of the Consumer Financial Protection Bureau.

There is also the matter that this is a Presidential election year, and a year in which the party with a majority in the Senate might switch. Republicans have an incentive to delay on President Obama's judicial nominees because any nominations pending at the end of the 112th Congress will lapse. And, the more judgeships that remain open, the more judgeships an incoming Republican would be able to fill. Also, if Republicans gain a majority in the Senate, and on the SJC, it will become easier for Republicans to reject or block nominations of President Obama, if he is re-elected.

Senate Republicans do not now hold a majority. On the other hand. Senate Democrats do not have a large enough majority to overcome a filibuster without Republican votes.

Moreover, a disproportionate number of Senate Democrats are up for election in November of this year. Many do not wish to cast recorded votes in favor of controversial judicial nominees. This works to the advantage of opponents of these nominees.

The Jordan nomination has not been particularly controversial, nor significant for information or communications technology. Jordan is a sitting U.S. District Court judge with no tech related background, and the 11th Circuit hears few tech related cases.

However, there are other pending nominations for circuits and districts that do hear many tech related cases. For example, the Senate Executive Calendar for February 16 lists Jacqueline Nguyen (9th Circuit), Stephanie Thacker (4th Circuit), Rudolph Contreras (for the U.S. District Court for the District of Columbia), and Jesse Furman and Ronnie Abrams (Southern District of New York). That is, these nominees have been approved by the SJC, and could be considered by the full Senate. There are also pending nominees who have not yet been approved by the SJC, such as Andrew Hurwitz (9thCircuit).

It should also be noted that there are two pending Federal Communications Commission (FCC) nominations: Ajit Pai and Jessica Rosenworcel. See, story titled "Obama Nominates Pai and Rosenworcel to Be FCC Commissioners" in TLJ Daily E-Mail Alert No. 2,309, November 3, 2011. There are also two pending Federal Trade Commission (FTC) nominations: Jon Leibowitz and Maureen Ohlhausen. See, story titled "Obama Picks Ohlhausen for FTC Commissioner" in TLJ Daily E-Mail Alert No. 2,264, July 20, 2011.

On February 13, the Senate debated and passed a motion to invoke cloture on the Jordan nomination by a vote of 89-5. See, Roll Call No. 18.

Sen. Patrick Leahy (D-VT) stated in the Senate on February 13 that "The needless delay in Judge Jordan's confirmation is the latest example of the tactics that have all but paralyzed the Senate confirmation process". He criticized Republican tactics, and argued that they are harming the federal judiciary. See, transcript.

Although, Senate Republicans' current delaying and obstructing tactics closely resemble those of Senate Democrats during the Bush administration.

The Senate continued its consideration on February 14, and concluded on February 15. Sen. Leahy complained on February 16 that "The Senate was forced to spend the better part of this week ending a filibuster against the nomination of Judge Adalberto Jordan". See, transcript.

Sen. Charles Grassley (R-IA), the ranking Republican on the Senate Judiciary Committee (SJC), spoke in the Senate about Jordan, and the effect upon judicial nominees of President Obama's assertion of authority to make recess appointments not during a Recess of the Senate.

Sen. Grassley stated that "We could have confirmed more nominees, had the President indicated that he would respect the practice and precedent on recess appointments. He would not give the Senate that assurance, so a number of nominations could not be confirmed and remain on the Executive Calendar. As it turned out, the President went on to violate the practice and precedent."

He added, "Generally, I am willing to give the President's nominees the benefit of the doubt when the nominee on the surface meets the requirements I have previously outlined. But as I indicated over the past few weeks, we are not operating under normal circumstances. The atmosphere the President has created with his disregard for constitutional principles has made it difficult to give his nominees any benefit of the doubt."

In This Issue
This issue contains the following items:
 • House and Senate Pass Spectrum Bill
 • Senate Confirms Jordan for 11th Circuit
 • Obama Nominates Jill Pryor for 11th Circuit
 • More Judicial Appointments
Washington Tech Calendar
New items are highlighted in red.
Monday, February 20

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.

Tuesday, February 21

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.

Wednesday, February 22

Ash Wednesday.

The House will not meet.

The Senate will not meet.

Thursday, February 23

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.

1:00 - 2:00 PM. The American Bar Association (ABA) will host a webcast event titled "From Metatags to Sponsored Ads: The Evolution of the Internet-Related Trademark Infringement Doctrine". The speakers will be Chad Doellinger (Katten Muchin Rosenman), Jennifer Mikulina (McDermott Will & Emery), and Uli Widmaier (Pattishall McAuliffe). CLE credits. Prices vary. See, notice.

Friday, February 24

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.

Monday, February 27

The House will meet. Votes will be postponed until 6:30 PM.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response the FCC's Public Notice (PN) regarding LightSquared's Petition for Declaratory Ruling. The FCC released this PN on January 27, 2012. See also, correction to this PN, also released on January 27. This PN is DA 12-103 in IB Docket No. 11-109 and ET Docket No. 10-142.

Tuesday, February 28

9:30 - 11:00 AM. The Information Technology and Innovation Foundation (ITIF) will release a report, and host a panel discussion, titled "Confronting Chinese Innovation Mercantilism". The speakers will be Sen. Jeff Merkley (D-OR), Robert Atkinson (ITIF), Morgan Reed (Association for Competitive Technology), and Alan Wolff (Dewey & LeBoeuf). Free. Open to the public. See, notice. Location: Room G11, Dirksen Building, Capitol Hill.

10:00 AM - 12:00 NOON. The House Science Committee's (HSC) Subcommittee on Research and Science Education will hold a hearing titled "An Overview of the National Science Foundation Budget for Fiscal Year 2013". The witnesses will be Subra Suresh (Director of the NSF) and Ray Bowen (Chairman of the National Science Board). The HSC will webcast this hearing. See, notice. Location: Room 2318, Rayburn Building.

12:00 NOON - 1:30 PM. Julie Brill (FTC Commissioner) and Anne Cavoukian (Commissioner of Canada's Office of the information and Privacy) will speak at an event hosted by the American Bar Association (ABA) titled "Privacy by Design: What All Companies Need to Do Now". No CLE credits. The price to attend is $50. See, notice.

12:00 NOON - 1:30 PM. The Federal Communications Commission's (FCC) Enforcement Bureau (EB) will hold an event at which EB Bureau Chief Michele Ellison and EB division chiefs and front office managers will speak. The FCBA states that this is an FCBA event. Location: Hogan Lovells, 555 13th St., NW.

2:00 - 3:15 PM. The President's National Security Telecommunications Advisory Committee (NSTAC) will meet by teleconference. The agenda includes an update from Gregory Schaffer (DHS Assistant Secretary for Cybersecurity and Communications), an update on the cloud computing from Mark McLaughlin, and an update on the national public safety broadband network scoping effort from Scott Charney and Michael Laphen. See, notice in the Federal Register, Vol. 77, No. 27, Thursday, February 9, 2012, at Page 6813.

6:30 - 8:30 PM. The Federal Communications Bar Association's (FCBA) Young Lawyers Committee and the Women's Bar Association of the District of Columbia (WBADC) will host an event titled "An Evening of Mentoring for Communications Lawyers". Prices vary. See, WBADC notice. Register at the WBADC web site, using the password FCBAMENTOR. Location: Hogan Lovells, 555 13th St., NW.

Obama Nominates Jill Pryor for 11th Circuit

2/16. President Obama nominated Jill Pryor to be a Judge of the U.S. Court of Appeals (11thCir). See, White House news office release and release.

She has worked as a litigator in the Atlanta, Georgia, office of the law firm of Bondurant Mixson & Elmore since 1989.

Her firm web page states that she has handled "trial and appellate business litigation in the areas of business torts, corporate governance and shareholder disputes, class actions, trade secrets, intellectual property (including patent infringement), fraud, and the Georgia and federal Racketeering and Corrupt Organizations acts (RICO)." (Parentheses in original.)

She is the author of a note published in the Yale Law Journal in 1988, the year of her graduation, titled "The Natural-Born Citizen Clause and Presidential Eligibility: An Approach for Resolving Two Hundred Years of Uncertainty".

More Judicial Appointments

2/17. The Senate confirmed Jesse Furman to be a Judge of the U.S. District Court (SDNY). He was an Assistant U.S. Attorney in the Southern District of New York. Before that, he worked for the law firm of Wiggin & Dana. He also clerked for former Judge Michael Mukasey (USDC/SDNY), Jose Cabranes (USCA/2ndCir), and former Justice David Souter (SCUS). See, Congressional Record, at Page S1021.

2/16. The Senate Judiciary Committee (DJC) held an executive business meeting at which it held over consideration of the nomination of Andrew Hurwitz to be a Judge of the U.S. Court of Appeals (9thCir).

2/16. President Obama nominated Elissa Cadish to be a Judge of the U.S. District Court (DNev). See, White House news office release and release.

2/16. President Obama nominated Paul Grimm to be a Judge of the U.S. District Court (DMd). See, White House news office release and release.

2/16. President Obama nominated Mark Walkera to be a Judge of the U.S. District Court (NDFl). See, White House news office release and release.

2/16. The Senate Judiciary Committee (DJC) held an executive business meeting at which it approved by voice votes four nominations for the U.S. District Court: John Lee (Northern District of Illinois), John Tharp (Northern District of Illinois), George Russell (District of Maryland), and Kristine Baker (Eastern District of Arkansas).

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