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April 4, 2013, Alert No. 2,546.
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FCC Announces Workshop on Incentive Auction's 600 MHz Band Plan

4/4. The Federal Communications Commission (FCC) released a Public Notice [1 page in PDF] that announces that the FCC will host an event on May 3, 2013 in its incentive auctions rulemaking proceeding.

The FCC's PN states that this event is a "workshop", and that its purpose is "to discuss technical aspects of the 600 MHz band plan that will result from the broadcast television incentive auction".

Early last year, the 112th Congress enacted HR 3630, [LOC | WW], the "Middle Class Tax Relief and Job Creation Act". This Act, among other things, authorized the FCC to conduct incentive auctions.

The FCC adopted a Notice of Proposed Rulemaking [205 pages in PDF] on September 28, 2012 (released on October 2) to implement the incentive auctions portion of this act. This NPRM is FCC 12-118 in GN Docket No. 12-268. See also, story titled "FCC Adopts NPRM on Incentive Auctions" in TLJ Daily E-Mail Alert No. 2,455, October 1, 2012.

This NPRM explains that "The incentive auction of broadcast television spectrum will have three major pieces: (1) a ``reverse auction创 in which broadcast television licensees submit bids to voluntarily relinquish spectrum usage rights in exchange for payments; (2) a reorganization or ``repacking创 of the broadcast television bands in order to free up a portion of the ultra high frequency (UHF) band for other uses; and (3) a ``forward auction创 of initial licenses for flexible use of the newly available spectrum."

This NPRM elaborates that creating a band plan from relinquished broadcast spectrum usage rights in the 600 MHz band presents unique challenges. "The forward auction抯 interdependence with the reverse auction and the repacking mean that we will not know in advance the amount of spectrum we can make available in the forward auction, the specific frequencies that will be available and, perhaps, the geographic locations of such frequencies."

"Therefore, instead of a band plan with identified frequencies, a set number of spectrum blocks and a uniform set of geographic area licenses, we must establish a band plan framework that is flexible enough to accommodate varying amounts of spectrum from relinquished broadcast television spectrum usage rights in different locations. At the same time, the band plan must provide as much information and certainty as possible, to enable interested wireless providers to make informed business decisions about whether, and how, to bid for and use 600 MHz spectrum."

The FCC will hold this May 3 event in the Commission Meeting Room. The FCC has not announced the time. This PN is DA 13-614 in GN Docket No. 12-268.

Also, on April 5 the FCC announced limitations on filing and processing of modification applications in advance of the broadcast television incentive auctions. See, related story in this issue titled "FCC Imposes Limits on Broadcast TV Modification Applications".

FCC Imposes Limits on Broadcast TV Modification Applications

4/5. The Federal Communications Commission (FCC) released a Public Notice [3 pages in PDF] that announces the imposition of certain limitations on the filing and processing of modification applications by broadcasters.

This PN states that "We find that the imposition of limits on the filing and processing of modification applications is now appropriate to facilitate analysis of repacking methodologies and to assure that the objectives of the broadcast television incentive auction are not frustrated."

Different organized interests have different views regarding repacking.

The incentive auctions bill enacted in February of 2012 requires that the FCC "make all reasonable efforts to preserve, as of the date of the enactment of this Act, the coverage area and population served of each broadcast television licensee, as determined using the methodology described in OET Bulletin 69".

See, OET Bulletin 69 [15 pages in PDF], titled "Longley-Rice Methodology for Evaluating TV Coverage and Interference", and dated February 06, 2004. The above quoted requirement is in Section 6403(b)(2) of HR 3630, [LOC | WW], the "Middle Class Tax Relief and Job Creation Act".

The FCC issued a Notice of Proposed Rulemaking (NPRM) last fall. In addition, the FCC's Office of Engineering and Technology's (OET) issued a Public Notice [8 pages in PDF] on February 4, 2013 that revises OET Bulletin 69.

Broadcasters, whom the FCC is counting on to voluntarily relinquish spectrum, vehemently oppose these proposed changes to OET Bulletin 69. The National Association of Broadcasters (NAB) and commercial broadcasters filed a comment [22 pages in PDF] on April 5 in which they stated that they "object to OET's proposal because it is expressly forbidden by Section 6403(b)(2) of the Spectrum Act; because it violates regulations requiring that any such changes be made by the full Commission following formal notice and comment; and because it constitutes arbitrary and capricious agency action".

Broadcasters continued that "It is little surprise that several of the commenters supporting OET's use of a modified OET-69 methodology represent members of the wireless community who stand to benefit from reductions in broadcasters' predicted coverage areas and populations served; such reductions would enable the Commission to more tightly ``repack创 broadcast channels and appropriate a larger swath of spectrum for wireless providers, to the detriment of broadcasters and their viewers. To foreclose this eventuality, Congress expressly directed the Commission to use ``all reasonable efforts创 to ``preserve, as of [February 22, 2012], the coverage area and population served of each broadcast television licensee, as determined using the methodology described in OET Bulletin 69.创" (Brackets in original. Footnote omitted.)

Similarly, the Association of Public Television Stations (APTS), Corporation for Public Broadcasting (CPB), and Public Broadcasting Service (PBS) submitted a comment [6 pages in PDF] opposing proposals contained in the FCC's February 4 Public Notice.

They wrote that the proposals would "significantly alter the coverage area and population served for many television stations", "would create widespread uncertainty for stations and would make it difficult for public television stations to serve their mission of providing all Americans with important free, noncommercial television services".

Moreover, the public broadcasters wrote, the proposals are contrary to the mandate of the statute.

In contrast, last month the Consumer Electronics Association (CEA) submitted a comment [20 pages in PDF] in support of the proposals contained in the February 4 Public Notice. The CEA wrote that the PN contains "an important piece of the incentive auction puzzle", and that the FCC "should move forward with its plan".

Similarly, the CTIA submitted a comment [23 pages in PDF] in support.

The just released FCC Public Notice on limiting modification applications states that "The repacking methodology the Commission ultimately adopts will be a critical tool in reorganizing the broadcast TV spectrum pursuant to the statutory mandate. Additional development and analysis of potential repacking methodologies is required in light of the technical, policy, and auction design issues raised in the rulemaking proceeding."

It announces that "Beginning immediately, and until further notice, the Media Bureau will not accept for filing modification applications (or amendments to pending modification applications) by full power and Class A television broadcast licensees and permittees for changes to existing television service areas that would increase a full power station's noise-limited contour or a Class A station's protected contour in one or more directions beyond the area resulting from the station's present parameters as represented in its authorizations (license and/or construction permit)."

"Similarly, we will not accept Class A displacement applications that would increase the station's protected contour. However, consistent with the Commission抯 proposal in the NPRM, Class A minor change applications to implement the digital transition (flash cut and digital companion channel) may continue to be filed and will be processed ..." (Footnote omitted.)

The Media Bureau "will consider, on a case-by-case basis, requests for waiver of the filing limitation imposed by this Public Notice when a modification application is necessary or otherwise in the public interest for technical or other reasons to maintain quality service to the public, such as when zoning restrictions preclude tower construction at a particular site or when unforeseen events, such as extreme weather events or other extraordinary circumstances, require relocation to a new tower site."

The just released PN is DA 13-618 in GN Docket No. 12-268.

TPI Paper Calls Mobility Fund Reverse Auction a Qualified Success

4/5. The Technology Policy Institute (TPI) released a paper [19 pages in PDF] titled "Two Cheers for the FCC's Mobility Fund Reverse Auction". The author is the TPI's Scott Wallsten.

The FCC conducted its Auction 901 in September of 2012, allowing service providers to bid the subsidy they would accept to provide service, with the FCC then subsidizing the lowest bidder. It is AU Docket No. 12-25.

Wallsten wrote that this auction "demonstrated that the FCC can run an effective reverse auction and demonstrated that allocating subsidies based on cost-effectiveness measures has the potential to dramatically increase the bang for the buck we get from universal service expenditures."

However, he added that "with very few regions receiving multiple bids the auction highlighted the difficulty in generating participation. Additionally, the pay-as-bid feature of the auction may create problems for upcoming auctions because it can create incentives for participants to bid strategically."

He concluded that "The FCC should consider employing other auction mechanisms more likely to induce firms to reveal their true estimates of the subsidies necessary to provide service."

OMB Issues Memorandum on Federal Use of Social Media

4/4. The Executive Office of the President's (EOP) Office of Management and Budget (OMB) released a memorandum [17 pages in PDF] for the heads of executive departments and agencies regarding federal government use of social media web sites.

This memorandum states that "when choosing which social media tools to adopt, it is important for agencies to exercise diligence in reviewing the set of terms that governs access to and use of these products and services. Agencies should not use social media platforms whose terms of use are incompatible with Federal law, regulation, or practice."

The underlying issue is that operators of social media web sites also attach terms of service (TOS) with numerous far reaching clauses, including indemnification by users. Use of these web sites requires an action, such as clicking a box that states that one has read and agrees to the TOS.

However, an opinion (attached to this memorandum) issued by the Department of Justice's (DOJ) Office of Legal Counsel (OLC) on March 12, 2012, stated that federal employees with actual authority to contract on behalf of the government violate the Anti-Deficiency Act (ADA) by entering into such indemnification obligations.

The ADA, which is codified at  31 U.S.C. 1341, provides in part that "An officer or employee of the United States Government ... may not ... make or authorize an expenditure or obligation exceeding an amount available in an appropriation or fund for the expenditure or obligation", or involve the "government in a contract or obligation for the payment of money before an appropriation is made unless authorized by law".

The memorandum states that "agencies already should have in place policies governing employees' use of social media platforms, and these policies already should require agency approval before an employee may open an agency account for a social media application".

It also states that "If the TOS for a social media product include an open-ended indemnification clause, then the agency must renegotiate the TOS with the provider or obtain another product whose TOS do not include the open-ended indemnification clause."

Also, it announces that the OMB "has requested that the Federal Acquisition Regulatory Council (FAR Council) undertake a rulemaking-through the issuance of an interim rule-to amend the Federal Acquisition Regulation (FAR) to require contracting officers to put contractors on notice that any TOS, EULA, or other agreement requiring the government or government-authorized end user to indemnify the contractor for damages, costs, or fees incurred is unenforceable against the government or end-user and will be read out of the agreement to prevent violations of the Antideficiency Act."

This memorandum also states that federal departments and agencies should comply with an attached memorandum of the Government Services Administration (GSA) titled "GSA Guidance for Reviewing Terms of Service for Social Media Products and Services".

The GSA memorandum lists some pre-approved social media -- Facebook, YouTube, Linkedin, Blogger, Flickr, SurveyMonkey, and WordPress.

People and Appointments

4/4. Hewlett Packard (HP) announced in a release that Raymond Lane "has decided to step down" as Chairman of the Board of Directors, and will be "replaced on an interim basis" by Ralph Whitworth. HP also announced that John Hammergren and Kennedy Thompson "decided to leave the board", after the May 2013 Board meeting.

In This Issue
This issue contains the following items:
  FCC Announces Workshop on Incentive Auction's 600 MHz Band Plan
  FCC Imposes Limits on Broadcast TV Modification Applications
  TPI Paper Calls Mobility Fund Reverse Auction a Qualified Success
  OMB Issues Memorandum on Federal Use of Social Media
  People and Appointments
  More News
Washington Tech Calendar
New items are highlighted in red.
Friday, April 5

The House will not meet the week of April 1 through April 5, except for pro forma sessions. The House will return on Tuesday, April 9. See, House calendar for 113th Congress, 1st Session.

The Senate will not meet the week of April 1 through April 5, except for pro forma sessions. The Senate will return on Monday, April 8.

8:30 AM. The Department of Labor's (DOL) Bureau of Labor Statistics (BLS) is scheduled to release its March 2013 unemployment data.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Creative Integrated Systems v. Nintendo, App. Ct. No. 2012-1579, an appeal from the U.S. District Court (CDCal) in a patent case. Panel K. Location: Courtroom 402, 717 Madison Place, NW.

12:15 - 1:30 PM. The Federal Communications Bar Association's (FCBA) newly formed Telemedicine Ad Hoc Committee will host a brown bag lunch on the Federal Communications Commission (FCC) and wireless and wireline health technologies. Location: Wilkinson Barker Knauer, Suite 700, 2300 N St., NW.

Extended deadline to submit comments to the Department of Justice's (DOJ) Antitrust Division and the Federal Trade Commission (FTC) in connection with their joint workshop on December 10, 2012, titled "Patent Assertion Entity Activities". See, notice and agenda.

Extended deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) regarding small cell operations in the 3550-3650 MHz  band. The FCC adopted and released this NPRM on December 12, 2012. It is FCC 12-148 in GN Docket No. 12-354. See, Public Notice, DA 12-298, released on February 28, 2013, extending the reply comment deadline. See also, notice of extension in the Federal Register, Vol. 78, No. 53, March 19, 2013, at Pages 16827-16828.

Monday, April 8

The House will not meet.

The Senate will return from its Spring recess. It will meet at 2:00 PM.

10:00 - 11:30 AM. The Center for Strategic and International Studies (CSIS) will host a panel discussion titled "China's Defense Budget". The speakers will be Andrew Erickson (Harvard University), James Mulvenon (Defense Group, Inc.), Jack Georgieff (CSIS), and Christopher Johnson (CSIS). See, notice. Location: CSIS, B1 Conference Center, 1800 K St., NW.

EXTENDED TO MAY 22. Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) regarding elevating the allocation status of Earth Stations Aboard Aircraft (ESAA) in the 14.0-14.5 GHz band from secondary to primary and whether giving ESAA licensees primary status in the 14.0-14.5 GHz band would require a change to the technical rules. The FCC adopted this NPRM on December 20, 2012, and released it on December 28, 2012. It is FCC 12-161 in IB Docket No. 12-376. See, original notice in the Federal Register, Vol. 78, No. 46, March 8, 2013, at Pages 14952-14957. See also, second notice in the FR, Vol. 78, No. 61, March 29, 2013, at Page 19172.

Tuesday, April 9

The House will return from its Spring recess.

10:30 AM. The Senate Commerce Committee (SCC) will hold a hearing titled "State of Rural Communications". The witnesses will be John Strode (Ritter Communications), Steven Davis (CenturyLink), Patricia Jo Boyers (BOYCOM Cablevision), and Leroy Carlson (U.S. Cellular). See, notice. Location: Room 253, Russell Building.

2:30 PM. The Senate Homeland Security and Governmental Affairs Committee (SHSGAC) will hold a hearing on the nomination of Sylvia Burwell to be Director of the Office of Management and Budget (OMB). See, notice. Location: Room 342, Dirksen Building.

2:30 PM. The Senate Intelligence Committee (SIC) will hold a closed hearing on undisclosed matters. See, notice. Location: Room 219, Hart Building.

Wednesday, April 10

Day one of a three day event hosted by the American Bar Association (ABA) titled "Antitrust Law 2013 Spring Meeting". See, notice. Location: JW Marriott Hotel, 1331 Pennsylvania Ave., NW.

10:00 AM. The House Appropriations Committee's (HAC) Subcommittee on Commerce, Justice, Science, and Related Agencies will hold a hearing on the Department of Justice (DOJ). Attorney General Eric Holder will testify. See, notice. Location: Room 2359, Rayburn Building.

12:00 NOON - 1:30 PM. The Information Technology and Innovation Foundation (ITIF) will host an event titled "The Social and Economic Case for Autonomous Vehicles". The speakers will be Robert Atkinson (ITIF), Bill Krenik (Texas Instruments), and Jason Schultz (Toyota). See, notice. Location: Room B-338, Rayburn Building, Capitol Hill.

2:30 PM. The Senate Judiciary Committee (SJC) will hold a hearing on the nomination of Srikanth Srinivasan to be a Judge of the U.S. Court of Appeals (DCCir). Webcast. See, notice. Location: Room 226, Dirksen Building.

6:00 - 8:00 PM. The Consumer Electronics Association (CEA) will host an event to promote the book [Amazon] by Gary Shapiro titled "Ninja Innovation: The Ten Killer Strategies of the World's Most Successful Businesses". There will be a reception from 6:00 until 8:00. There will be speeches at 6:30. Location: 1776 Campus, 12th floor, 1133 15th St., NW.

Thursday, April 11

Day two of a three day event hosted by the American Bar Association (ABA) titled "Antitrust Law 2013 Spring Meeting". See, notice. Location: JW Marriott Hotel, 1331 Pennsylvania Ave., NW.

9:00 - 10:30 AM. The Information Technology and Innovation Foundation (ITIF) will host a discussion of the book [88 pages, Amazon] titled "The Need for Speed: A New Framework for Telecommunications Policy in the 21st Century". The speakers will be the two authors, Robert Litan (Kauffman Foundation) and Hal Singer (Navigant Economics), and Robert Atkinson (ITIF) and Blair Levin (Aspen Institute). See, notice. Location: ITIF/ITIC, Suite 610A, 1101 K St., NW.

10:00 AM. The House Small Business Committee's (HSBC) Subcommittee on Investigations, Oversight and Regulations will hold a hearing titled "JOBS Act Implementation Update". The witnesses will be Lona Nallengara (acting Director of the SEC's Division of Corporation Finance), John Ramsey (acting Director of the SEC's Division of Trading and Markets), Kevin Rustagi (SBE Council), and Jean Peteres (Angel Capital Association). See, HSBC notice. The 112th Congress enacted the JOBS Act one year ago, but has not written key implementing rules.  See, story titled "Walter Addresses SEC's Failure to Write Crowd Funding Rules" in TLJ Daily E-Mail Alert No. 2,544, April 2, 2013. Location: Room 2360, Rayburn Building.

10:00 AM. The House Intelligence Committee (HIC) will hold a partially closed hearing titled "Worldwide Threats". See, notice. Location: the open portion of this hearing will be in Room HVC-210, House Visitor Center; the closed portion will be in Room HVC-304.

10:00 AM. The Senate Judiciary Committee (SJC) will hold an executive business meeting. The agenda again includes consideration of the nomination of Kenneth Gonzales (USDC/DNMex). See, notice. Webcast. Location: Room 226, Dirksen Building.

1:30 PM. The House Appropriations Committee's (HAC) Subcommittee on Commerce, Justice, Science, and Related Agencies will hold a hearing on the Department of Commerce (DOC). See, notice. Location: Room 2359, Rayburn Building.

2:30 PM. The Senate Intelligence Committee (SIC) will hold a closed hearing on undisclosed matters. See, notice. Location: Room 219, Hart Building.

4:00 PM. The U.S. Patent and Trademark Office (USPTO) will host an event titled "Patents for Humanity Awards Ceremony". The speakers will include Sen. Patrick Leahy (D-VT) and Teresa Rea (acting Director of the USPTO). See, notice. See also, story titled "Sen. Leahy Introduces a Bill to Make USPTO Acceleration Certificates Alienable" in TLJ Daily E-Mail Alert No. 2,487, December 10, 2012. Location: Room 226, Dirksen Building.

Friday, April 12

Supreme Court conference day. See, Supreme Court calendar.

Day three of a three day event hosted by the American Bar Association (ABA) titled "Antitrust Law 2013 Spring Meeting". See, notice. Location: JW Marriott Hotel, 1331 Pennsylvania Ave., NW.

5:00 PM. Deadline to submit comments to the Office of the U.S. Trade Representative (OUSTR) regarding competitive need limitations (CNLs) under the Generalized System of Preferences (GSP) program. See, notice in the Federal Register, Vol. 78, No. 53, March 19, 2013, at Pages 16908-16910.

Deadline to submit reply comments to the Federal Communications Commission's (FCC) Wireline Competition Bureau (WCB) in response to its Public Notice (PN) regarding implementation of its Connect America Phase II subsidy program. This PN is DA 13-284 in WC Docket No. 10-90. The WCB released it on February 26, 2013. See also, notice in the Federal Register, Vol. 78, No. 51, March 15, 2013, at Pages 16456-16460.

More News

4/5. The Department of Commerce (DOC) published a notice in the Federal Register (FR) that announces the the Board of Directors of the First Responder Network Authority, or FirstNet, will meet on June 4, 2013 from 8:30 to 11:30 AM in Westminster, Colorado. See, FR, Vol. 78, No. 66, April 5, 2013, at Page 20619.

4/5. The U.S. Patent and Trademark Office (USPTO) published a notice in the Federal Register (FR) that announces and requests comments on its MyUSPTO, a planned customer portal that will serve as a central point for access to online system interfaces and submission of information to the USPTO. The deadline to submit comments to the USPTO is June 4, 2013. See, FR, Vol. 78, No. 66, April 5, 2013, at Pages 20619-20620.

4/4. The Semiconductor Industry Association (SIA) stated in a release that "This week, the U.S. government began accepting applications from employers for H-1B visas for highly educated workers who want to fill open jobs in the U.S. Unfortunately, the demand for skilled immigrant workers far exceeds the current cap of 65,000 H-1B visas (plus an additional 20,000 for those with advanced degrees from U.S. universities), so the limit likely will be reached by the end of this week." (Parentheses in original.)

4/3. The Public Knowledge (PK) released a paper [4 pages in PDF] titled "The Wrong Tool for the job: Data Caps, Price Discrimination, and Bandwidth Pricing".

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