News from December 21-25, 2004

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12/24. The American Enterprise Institute (AEI) published in its web site a video recording of its December 14, 2004 program titled "The Proper Direction for Telecommunications Reform Legislation". Robert Crandall of the Brookings Institution presented a paper titled "A Critical Analysis of the Economic Benefits of the 1996 Telecom Act's Local Competition Provisions". He argued that while the goal of the 1996 Act was to produce local competition, it did not produce "meaningful local competition". Harold Furchtgott-Roth, John Mayo, and Walter McCormick commented on the paper. Duane Ackerman gave the luncheon address. See also, stories titled "AEI Panel Addresses Telecom Regulation" and "BellSouth CEO Ackerman Offers Recommendations for Next Telecom Act" in TLJ Daily E-Mail Alert 1,041, December 20, 2004.

12/24. The AEI Brookings Joint Center for Regulatory Studies published a paper [10 pages in PDF] titled "A New Approach for Regulating Information Markets", by Robert Hahn and Paul Tetlock. This paper is a revised version of their September paper titled "The Coming Revolution in Information Markets". See also, story titled "AEI Brookings Study Backs Use of Information Markets by Government" in TLJ Daily E-Mail Alert No. 972, September 8, 2004. Information markets, are markets for contracts that yield payments based on the outcome of an uncertain future event. Political scientists have played with these markets during presidential elections. John Poindexter proposed that they be used in connection with potential terrorist events. These markets provide information about future events. Hahn and Tetlock argue that they could provide information about the "likely benefits and costs of different kinds of policies and projects". They state that "information markets combined with pay-for-performance contracts have the potential to revolutionize the way the government, the non-profit world, and the private sector do business. Moving to a performance-based policy paradigm could have great benefits for consumers and the economy. In addition to providing economic benefits, this approach could also promote greater accountability and transparency in the development of policy."

Bush to Renominate 20 for Federal Judgeships

12/23. President Bush announced his intent to nominate twelve persons to be judges of the U.S. Court of Appeals. See, statement by President Bush. The twelve are as follows:

Judge Terrence Boyle (4th Circuit)
William Haynes (4th Circuit)
Justice Priscilla Owen (5th Circuit)
Judge David McKeague (6th Circuit)
Judge Susan Neilson (6th Circuit)
Judge Henry Saad (6th Circuit)
Judge Richard Griffin (6th Circuit)
William Myers (9th Circuit)
Judge William Pryor (11th Circuit)
Justice Janice Brown (DC Circuit)
Brett Kavanaugh (DC Circuit)
Thomas Griffith (DC Circuit)

President Bush also nominated all of these persons in the 108th Congress. He also nominated some as early as the beginning of his first administration. Senate Democrats have delayed, and in some cases, filibustered, these nominations.

See, full story.

Bush Signs Telecom Bill

12/23. President Bush signed HR 5419. This is a composite bill put together in November. It includes the "Commercial Spectrum Enhancement Act", the "ENHANCE 911 Act", and the "Universal Service Antideficiency Temporary Suspension Act". Bush also issued a signing statement in which he asserted that some provisions of the bill are unconstitutional, and that his administration will implement the bill accordingly.

The House approved this bill on Saturday, November 20, 2004, by unanimous consent, without debate. The Senate approved the bill on December 8, 2004.

See, stories titled "House Approves Bill that Includes the Commercial Spectrum Enhancement Act" in TLJ Daily E-Mail Alert No. 1,025, November 24, 2004; "Powell Urges Senate to Approve Telecom Bill" in TLJ Daily E-Mail Alert No. 1,032, December 7, 2004; and, "Congress Approves Telecom Bill" in TLJ Daily E-Mail Alert No. 1,035, December 10, 2004.

Title I of HR 5419 is titled the "Ensuring Needed Help Arrives Near Callers Employing 911 Act of 2004" or "ENHANCE 911 Act".

Title II of the bill is the "Commercial Spectrum Enhancement Act". It changes the process for reallocating spectrum from federal users to commercial users, such as wireless broadband services. The bill creates a Spectrum Relocation Fund, funded by auction proceeds, to compensate federal agencies for the cost of relocating. The bill replaces the current role of the House and Senate Appropriations Committees. HR 1320 was an earlier version.

Title III of the bill is the "Universal Service Antideficiency Temporary Suspension Act". This title provides that universal service funds collected pursuant to 47 U.S.C. §  254, and the universal service programs established pursuant to this section, are not subject to certain provisions of the Antideficiency Act.

President Bush's signing statement addresses Title III. He wrote that this title "makes the Antideficiency Act temporarily inapplicable to certain collections, receipts, expenditures and obligations relating to universal communications service."

He then wrote that "Section 104 amends section 158(a)(2) of the National Telecommunications and Information Administration Organization Act to call for executive branch officials to submit to congressional committees funding profiles for a specified 5-year program. The executive branch shall construe the provision in a manner consistent with the constitutional authority of the President to recommend for the consideration of the Congress such measures, including proposals for appropriations, as he judges necessary and expedient."

He also wrote that "Sections 202 and 204 enact sections 113(g)(5) and 118(d) of the National Telecommunications and Information Administration Organization Act, which purport to condition the execution of a law upon notification to congressional committees coupled with either approval by the committees or the absence of disapproval by the committees within a specified time. The executive branch shall construe the provisions to legally require only notifi-cation to the committees, as any other construction would be inconsistent with the principles enunciated by the Supreme Court of the United States in INS v. Chadha. The Secretary of Commerce will continue as a matter of comity to work with the committees on matters addressed by these provisions."

See, the Supreme Court's opinion in INS v. Chadha, 462 U.S. 919 (1983). President Bush has on prior occasions asserted Chadha. See, for example, story titled "Homeland Security Appropriations Bill Purports to Restrict Use of Funds for CAPPS II" in TLJ Daily E-Mail Alert No. 751, October 2, 2003.

Finally, President Bush wrote that "As is consistent with the principle of statutory construction of giving effect to each of two statutes addressing the same subject whenever they can co-exist, the executive branch shall construe section 302 of the Act in a manner consistent with section 254 of the Communications Act of 1934, which provides the Federal Communications Commission with the authority to maintain funding caps for Universal Service Fund programs."

7th Circuit Holds There is No Duty to Defend and Indemnify Junk Faxer Under Advertising Injury and Privacy Violation Clause

12/23. The U.S. Court of Appeals (7thCir) issued its opinion [9 pages in PDF] in American States Insurance Company v. Capitol Associates of Jackson County, a declaratory judgment action involving whether a commercial insurance policy's advertising injury clause covers civil actions alleging the sending junk faxes in violation of 47 U.S.C. § 227(b)(1)(C). The District Court held that there is coverage under the violation of privacy provision of this policy's advertising injury clause. The Court of Appeals reversed.

In another action, JC Hauling Company filed a complaint in state court against Capitol Associates of Jackson County, Inc. alleging that it sent it a junk fax in violation of 47 U.S.C. § 227(b)(1)(C). JC Hauling also sought class action status.

Capitol Associates demanded that its insurer, American States Insurance Company, defend and indemnify it. The Appeals Court opinion does not set out all of the advertising injury language of the policy. The opinion does state that "``Advertising injury´´ is defined to include ``[o]ral or written publication of material that violates a person's right of privacy.´´ Another portion of the policy excludes injury that is ``expected or intended from the standpoint of the insured.´´" American states proceeded to defend, under a reservation of rights.

Section 227 provides, in part, that "It shall be unlawful for any person within the United States ... to use any telephone facsimile machine, computer, or other device to send an unsolicited advertisement to a telephone facsimile machine ..."

In the present action, American States filed a complaint in U.S. District Court (SDIll) against its insured, Capitol Associates, seeking a declaratory judgment that it is not obligated to defend or indemnify Capitol Associates in the JC Hauling action.

The District Court held that a junk fax invades the recipient's privacy, and hence, American States must defend. The District Court did not rule on the duty to indemnify. The District Court then dismissed the complaint without prejudice.

Judge Frank EasterbrookAmerican States appealed. The Court of Appeals reversed. Capitol Associates is on its own in the class action lawsuit. Judge Frank Easterbrook (at right) wrote the opinion.

The Court of Appeals first finessed its way around its obvious jurisdictional problem with deconstructive logic. Easterbrook noted that "Dismissals without prejudice are canonically non-final and hence not appealable under 28 U.S.C. §1291." However, he concluded that the District Court's use of the words "without prejudice", in Easterbrook's word, "misdescribes" the action of the District Court. In fact, he wrote, the disposition was "conclusive in practical effect". Hence, the Court of Appeals possesses jurisdiction.

Then, Easterbrook got to the substance of the case, whether sending a junk fax constitutes a violation of the recipient's right to privacy, within the meaning of this insurance policy, thus obligating the insurer to defend and indemnify its insured, the junk faxer.

Easterbrook wrote that "``Privacy´´ is a word with many connotations. The two principal meanings are secrecy and seclusion, each of which has multiple shadings." Easterbrook reasoned that Capitol Associates had not disclosed or revealed anything about JC Hauling, so, only the seclusion meaning of the word privacy could give rise to coverage.

Easterbrook then concluded that there could be no violation of seclusion, because "JC Hauling is a corporation". He wrote that "businesses lack interests in seclusion. It is not just that they are ``open for business´´ and thus welcome phone calls and other means to alert them to profitable opportunities. It is that corporations are not alive. Where does a corporation go when it just wants to be left alone? Most states hold that business entities lack privacy interests."

However, since JC Hauling also sought class action status, Easterbrook continued the analysis.

He did not conclude take the approach that junk faxes do not violate the seclusionary interests of real people. Rather, he concluded that the language of this particular insurance policy contemplates the secrecy aspect of privacy, rather than the seclusionary aspect.

He wrote that "The structure of the policy strongly implies that coverage is limited to secrecy interests. It covers a ``publication´´ that violates a right of privacy. In a secrecy situation, publication matters; otherwise secrecy is maintained. In a seclusion situation, publication is irrelevant."

Easterbrook also noted that "§227(b)(1)(C) condemns a particular means of communicating an advertisement, rather than the contents of that advertisement -- while an advertising-injury coverage deals with informational content."

Hence, there is no coverage, and the District Court is reversed.

This case is American States Insurance Company v. Capitol Associates of Jackson County, Inc., U.S. Court of Appeals for the 7th Circuit, App. Ct. No. 04-1659, an appeal from the U.S. District Court for the Southern District of Illinois, D.C. No. 02-00975-DRH, Judge David Herndon presiding. Judge Frank Easterbrook wrote the opinion of the Court of Appeals, in which Judges Bauer and Kanne joined.

People and Appointments

12/23. Frank Libutti, the Department of Homeland Security's (DHS) Under Secretary for Information Analysis and Infrastructure Protection, will leave the DHS. See, statement by outgoing Secretary of Homeland Security Tom Ridge. An exodus from the DHS is underway. On October 1, 2004, Amit Yoran, the former Director of the DHS's National Cyber Security Division resigned. See, story titled "Cyber Security Chief Yoran Resigns" in TLJ Daily E-Mail Alert No. 989, October 4, 2004. On November 30, 2004, Secretary Ridge announced that he will leave the DHS on February 1, 2005. See, story titled "Tom Ridge Resigns" in TLJ Daily E-Mail Alert No. 1,028, December 1, 2004. On December 20, 2004, James Loy, the Deputy Secretary of the DHS, announced that he will remain at the DHS until March 1, 2005, or until a successor is confirmed.

More News

12/23. The Federal Communications Commission (FCC) released an Order on Review [4 pages in PDF] pertaining to Minority Television Project, Inc., which is the licensee of noncommercial educational (NCE) television station KMTP-TV in San Francisco, California. Pursuant to 47 U.S.C. § 399B and 47 C.F.R. § 73.621(e), NCE stations cannot carry commercial advertisements. KMTP-TV carried commercial advertisements. The FCC rejected the broadcaster's arguments that the statute and regulation unconstitutionally restrain speech. The FCC affirmed the fine of $10,000.

12/23. The Export-Import Bank of the United States published a brief notice in the Federal Register that states that it "has received an application to finance the export of approximately $1.2 billion in U.S. semiconductor manufacturing equipment to dedicated foundries in China." The notice adds that "The U.S. exports will enable the dedicated 200-mm and 300-mm foundries to produce approximately 80,000 wafers per month (200-mm equivalent) of logic products. Available information indicates that some of this new production will be exported from China and consumed globally." Public comments are due "within 14 days of the date this notice appears in the Federal Register". See, Federal Register, December 23, 2004, Vol. 69, No. 246, at Page 76945. This would make comments due by January 6, 2005.

12/23. The Department of Agriculture's Rural Utilities Service (RUS) published a notice in the Federal Register that announces the depreciation rates for telecommunications plant for the period ending December 31, 2003. See, Federal Register, December 23, 2004, Vol. 69, No. 246, at Pages 76909 - 76910.

12/23. The Department of State published a notice in the Federal Register that states that it will award $800,000 in grants for jazz and urban music performers to perform in other countries, especially "countries with significant Muslim populations". See, Federal Register, December 23, 2004, Vol. 69, No. 246, at Pages 76965 - 76971.

European Court of First Instance Denies Microsoft's Application for Interim Measures

12/22. The Court of First Instance of the European Communities issued an order that dismisses in its entirety Microsoft's application for interim measures.

That is, Microsoft has appealed the European Commission's (EC) March 24, 2004 decision that orders its to pay money, redesign its operating system, and give proprietary information to its competitors. Microsoft also requested that the Court of First Instance (CFI) stay the enforcement of the decision pending resolution of the merits of the appeal. The CFI just denied this request, basically, on the basis the Microsoft will not suffer irreparable injury by enforcement of the decision at this time. The just released order concedes that Microsoft may yet prevail before the CFI on the merits of the appeal.

See also, press release [3 pages in PDF] issued by the CFI. See, full story.

FCC Increases Nextel's Credit by $452 Million in Spectrum Swap

12/22. The Federal Communications Commission (FCC) released another order [67 pages in PDF] addressing the problem of interference to 800 MHz public safety communications systems from Commercial Mobile Radio Services (CMRS) providers operating systems on channels in close proximity. This is also know as the Nextel spectrum swap. This latest order provides, among other things, that Nextel's credit for 800 MHz spectrum be increased by $452 Million.

This order is titled "Supplement Order and Order on Reconsideration". It is FCC 04-294 in WT Docket No. 02-55, ET Docket No. 00-258, RM-9498, RM-10024, and ET Docket No. 95-18.

The FCC announced its original report and order (FCC 04-168) at its July 8, 2004 meeting. See, story titled "FCC Adopts Report and Order Regarding Interference in the 800 MHz Band" in TLJ Daily E-Mail Alert No. 936, July 13, 2004.

The original report and order provides that Nextel will return its interference causing spectrum in the 800 MHz band, and all of its licenses in the 700 MHz band, and in return, will be given 10 megahertz of spectrum, located at 1910-1915 MHz and 1990-1995 MHz, subject to further conditions.

The FCC concluded back in July that "the overall value of the 1.9 GHz spectrum rights is $4.8 billion, less the cost of relocating incumbent users". The FCC determined "that it would credit to Nextel the value of the spectrum rights that Nextel will relinquish and the actual costs Nextel incurs for to relocate all incumbents in the 800 MHz band."

Nextel requested that the FCC modify its July report and order (R&O). The present supplemental order increases the valuation of these credits by nearly one half billion dollars.

The present supplemental order states that "We have carefully reviewed the Nextel analysis and the comments that parties have filed in response to that analysis. We conclude that the data submitted by Nextel provides credible support for its contentions with respect to the amount and value of 800 MHz spectrum that it will relinquish under the terms of the 800 MHz R&O."

It elaborates that "Nextel has based its calculations on an analysis of all markets, rather than a sampling of markets. Nextel has also provided more complete information on Nextel’s interleaved spectrum holdings by including data on interleaved non-SMR (B/ILT) channels held by Nextel, which were not taken into account in our valuation in the 800 MHz R&O. In addition, Nextel’s bandwidth calculations more accurately reflect the variations in Nextel’s spectrum holdings from one market to another, and do not count spectrum that is unavailable to Nextel because of the presence of non-Nextel incumbents.

The supplemental order concludes that "We believe it is in the public interest to base our valuation on the granular data provided by Nextel, rather than on the less precise information available to us at the time of the 800 MHz R&O."

It further concludes, at Paragraph 36, that "Based on this revised information, we conclude that the “credit” that Nextel should receive for surrender of 800 MHz spectrum should be increased by $452 million. Accordingly, in the post-rebanding calculation used to determine whether Nextel must make a ``true-up´´ payment to the United States Treasury, Nextel will be credited the sum of $2.059 billion for its surrendered 800 MHz spectrum." (Footnote omitted.)

Michael CoppsFCC Commissioner Michael Copps (at right) wrote in a concurring statement [PDF] that "I am uncomfortable, however, with the decision to change the valuation of Nextel's spectrum by close to half a billion dollars -- an increase of nearly twenty percent. While I believe that Nextel has demonstrated that its spectrum holdings are different than the assumption we made in the original order, I am concerned that the process that the Commission has used here to determine value has become too imprecise. Given the short time available, I do not believe that the Commission had the capacity to independently pinpoint the exact nature of Nextel’s holdings, as we do here but did not do in the previous order. Additionally, if we must reassess the value of Nextel's spectrum, I would have preferred to reassess the MHz/POP multiplier that we employ in light of changes in the marketplace and transactions that occurred after we adopted our first order. Given the magnitude of the valuation at issue, I will therefore concur."

See also, FCC Commissioner Jonathan Adelstein's separate statement [PDF].

FCC Reports Rapid Growth in Number of High Speed Internet Access Connections

12/22. The Federal Communications Commission's (FCC) Wireline Competition Bureau's (WCB) Industry Analysis and Technology Division (IATD) released a report [25 pages in PDF] titled "High-Speed Services for Internet Access: Status as of June 30, 2004".

The report finds that "Subscribership to high-speed services for Internet access increased by 15% during the first half of 2004, to a total of 32.5 million lines in service."

Of these, 18,592,636 were cable, 11,398,199 were DSL, 1,407,121 were other wireline, 638,812 were fiber, and 421,690 were satellite or wireless.

This report, and the similar reports that the FCC has produced, use a very minimal definition of "high speed". It is "a connection to an end-user customer that is faster than 200 kbps in at least one direction".

The report also contains state level data on the number of customers and number of service providers, by access technology. See also, FCC release [2 pages in PDF].

FCC Releases Report on Local Phone Competition

12/22. The Federal Communications Commission's (FCC) Wireline Competition Bureau's (WCB) Industry Analysis and Technology Division (IATD) released a report [24 pages in PDF] titled "Local Telephone Competition: Status as of June 30, 2004".

This report, which is issued twice per year, finds that the competitive local exchange carriers' (CLEC) total number of end-user switched access lines continued to grow (to 180,086,735), and that CLECs' share of end-user switched access lines continued to grow (to 17.8%).

The report finds also that incumbent local exchange carriers' (ILEC) total number of end-user switched access lines continued to drop (to 148,103,506).

Moreover, the combined total of all end-user switched access lines dropped (to 180,086,735); this trend began back in 2001. The report does not offer explanations for this trend.

FTC, AIPLA, and National Academies to Host Series of Public Meetings on Patent Reform

12/22. The Federal Trade Commission (FTC) announced that it will jointly host a series of public meetings on patent reform in San Jose, California (February 18, 2005), Chicago, Illinois (March 4, 2005), Boston, Massachusetts (March 18, 2005), and Washington DC (June 9, 2005). The other hosts will be the National Academies' Board on Science, Technology, and Economic Policy (STEP), and the American Intellectual Property Law Association (AIPLA). See, FTC notice.

The FTC, STEP and AIPLA have all published recommendations for patent reform. On October 28, 2003, the FTC released a report titled "To Promote Innovation: The Proper Balance of Competition and Patent Law and Policy". See, Executive Summary [18 pages in PDF] and Report [2.28 MB in PDF]. See also, story titled "FTC Releases Report on Competition and Patent Law" in TLJ Daily E-Mail Alert No. 768, October 29, 2003.

See also, STEP's report titled "A Patent System for the 21st Century", and the AIPLA's report [49 pages in PDF] titled "AIPLA Response to the National Academies Report entitled “A Patent System for the 21st Century”"

Jon Dudas, head of the U.S. Patent and Trademark Office (USPTO), is scheduled to be the luncheon speaker at the three meetings in San Jose, Chicago, and Boston.

Bob the Beerman Loses Lanham Act Appeal

12/22. The U.S. Court of Appeals (10thCir) issued its opinion in Donchez v. Coors, a state service mark and Lanham Act case in which the Appeals Court affirmed the District Court's judgment for Coors Brewing Company. Bob Donchez complained that Coors' use of the word "beerman" in TV commercial infringed his state service mark, "Bob the Beerman".

Bob Donchez has sold beer in the stands at baseball games in Denver, Colorado. He also sold beer at other athletic events, published a book [Amazon sales rank number 1,393,103] titled "A view from the stands: A season with Bob the Beerman". He also starred in a video of the same nature.

Donchez also filed for service mark protection for the "Bob the Beerman" character in the state of Colorado. Colorado registered the mark under the class of "Education and Entertainment Services" in 1993.

Coors, a large national beer brewery, subsequently produced and published television advertisements that featured scenes in the stands of athletic events at which sports fans order Coors beer from a vendor whom they addressed as "beerman" or "beerstud".

In1999 Donchez filed a complaint in the U.S. District Court (DColo) against Coors and its advertising agency alleging violation of the common law right of publicity, service mark infringement under Colorado law, common law service mark infringement, unfair competition in violation of the Lanham Act, violation of the Colorado Consumer Protection Act, unjust enrichment, and unfair misappropriation and exploitation of business value. The District Court granted summary judgment to the defendants on all claims. Donchez appealed.

The Court of Appeals affirmed. The opinion contains a lengthy analysis of the Lanham Act unfair competition claim, including a discussion of descriptive and generic marks, acquisition of secondary meaning, and use of evidence in summary judgment proceedings on Lanham Act claims.

This case is Robert Donchez v. Coors Brewing Company and Foote, Cone & Belding Advertising, U.S. Court of Appeals for the 10th Circuit, App. Ct. No. 03-1462, an appeal from the U.S. District Court for the District of Colorado, D.C. No. 99-RB-558. Judge Briscoe wrote the opinion of the Court of Appeals, in which Judges Hartz and McConnell joined.

FCC News

12/22. The Federal Communications Commission (FCC) released a Notice of Apparent Liability for Forfeiture (NALF) [28 pages in PDF] that proposes to fine Entercom Kansas City License, the licensee of stations KQRC-FM and KFH(AM), $220,000 for willfully and repeatedly airing apparently indecent material during the broadcasts of a program titled "Dare and Murphy Show". See also, FCC release [PDF]. This NALF is FCC 04-231. FCC Commissioner Kevin Martin wrote a statement [PDF] urging a larger penalty. FCC Commissioner Michael Copps wrote a statement [PDF] that also urged a larger penalty.

12/22. The Federal Communications Commission (FCC) released an Order Granting Partial Stay [6 pages in PDF] in its proceeding titled "In the Matter of New Part 4 of the Commission's Rules Concerning Disruptions to Communications". This FCC adopted its NPRM on network outage reporting by telecommunications carriers back on February 12, 2004. This NPRM is FCC 04-30 in ET Docket No. 04-35. The FCC adopted its Report and Order at its August 4, 2004 meeting. It released this R&O on August 19, 2004. It is FCC 04-188. This R&O mandates network outage reporting, and extends reporting obligations to wireless and satellite providers, as well as wireline and cable providers. The just released FCC order stays paragraph 134 "pending resolution of our investigation into the matters discussed hereinabove". This paragraph pertains to DS3 and Synchronous Optical Network (SONET) rings. It provides, in part, that "When a DS3 is part of a protection scheme such as a SONET ring, it will frequently switch to a protect-path within seconds of a failure in the primary path. The communication services being provided over the DS3 will not be immediately affected, but they will no longer be protected. Unfortunately, we have had a number of network outages reported where there are multiple failures on a SONET ring at different points in time, in one case five months after the initial failure. The second failure that occurs before the first failure is repaired causes the loss of all communications services being provided over the DS3. We therefore require that DS3s that switch to protect be counted in DS3 outage minutes until such time as the DS3s are restored to normal service, including protection. ... Protected communications services are not restored to normal until both the primary and protect DS3s operate properly. In this same regard, if protection DS3s should fail while the primary DS3s are still working, services would not be immediately affected but the failed DS3 minutes are still counted toward the reportable trigger due to the loss of protection."  See also, story titled "FCC Adopts R&O and FNPRM Regarding Reporting of Network Outages" in TLJ Daily E-Mail Alert No. 954, August 6, 2004.

12/22. The Federal Communications Commission (FCC) extended the deadline for submitting reply comments in response to the FCC's Notice of Proposed Rulemaking (NPRM) [38 pages in PDF] regarding use by unlicensed devices of broadcast television spectrum where the spectrum is not in use by broadcasters. The deadline had been December 30. The new deadline is January 31, 2005. See also, story titled "FCC Adopts NPRM Regarding Unlicensed Use of Broadcast TV Spectrum" in TLJ Daily E-Mail Alert No. 898, May 14, 2004, and story titled "FCC Releases NPRM Regarding Unlicensed Use of TV Spectrum" in TLJ Daily E-Mail Alert No. 905, May 26, 2004. This NPRM is FCC 04-113 in ET Docket Nos. 04-186 and No. 02-380. See, notice (setting original deadlines) in the Federal Register, June 18, 2004, Vol. 69, No. 117, at pages 34103-34112; first notice [PDF] of extended deadlines; erratum [PDF]; and December 22, 2004 Public Notice [PDF] (DA 04-4013) further extending the deadline for reply comments to January 31.

12/22. The Federal Communications Commission (FCC) released an order [PDF] that extends the deadline for filing first round DTV channel election forms to January 27, 2005. This proceeding is titled "In the matter of Second Periodic Review of the Commission’s Rules and Policies Affecting the Conversion To Digital Television". This is MB Docket No. 03-15. See also, Public Notice [PDF].

12/22. The Federal Communications Commission (FCC) filed its Opposition to Petition for Issuance of Writ of Mandamus [22 pages in PDF] with the U.S. Court of Appeals (DCCir) in In Re Paxson. Paxson's petition pertains to multicasting, dual carriage of analog and digital signals, and the FCC's DTV must carry proceeding. The FCC argues that a writ of mandamus is an inappropriate remedy. This case is In re Paxson Communications Corp., U.S. Court of Appeals for the District of Columbia, App. Ct. No. 04-1290.

12/22. The Federal Communications Commission (FCC) published a notice in the Federal Register that announces sets the effective date of certain of its children's television rules, that it published over eight years ago, in August of 1996. The notice states that the rules are effective as of January 2, 1997. See, Federal Register, December 21, 2004, Vol. 69, No. 244, at Page 76420.

FCC Publishes Respondent's Briefs in Pending Cases

12/21. The Federal Communications Commission (FCC) published in its web site the briefs that it recently filed with the Court of Appeals in three pending cases. First, the FCC published the brief [38 pages in PDF] that it filed with the U.S. Court of Appeals (DCCir) in SBC Communications v. FCC.

This is a petition for review of a Forfeiture Order in which the FCC held that SBC violated the provision of the FCC's order approving the merger of SBC and Ameritech which required SBC to offer access to the shared transport element of its telephone network to competitors in five midwestern states.

The FCC argues that this is the second time that SBC has brought a petition for review that challenges this part of the merger order, and hence, the doctrine of issue preclusion bars SBC from now raising new legal theories. The Appeals Court's previous opinion is reported at 373 F.3d 140.

Oral argument is scheduled for February 17, 2005. This case is SBC Communications, Inc. v. FCC and USA, U.S. Court of Appeals for the District of Columbia, App Ct. No. 03-1147, a petition for review of a final order of the FCC.

Second, the FCC published the brief [25 pages in PDF] that it filed with the DC Circuit in NSTN v. FCC. This is an appeal of the FCC's cancellation of nine licenses to operate private land mobile radio stations in the Los Angeles, California area.

The FCC argues that under the FCC's rules in effect at the time, NSTN was required to construct the stations within one year. However, NSTN did not construct the stations within one year, or apply to the FCC for an extension of time within one year.

Oral argument is scheduled for February 7, 2005. This case is National Science and Technology Network, Inc. v. FCC and USA, U.S. Court of Appeals for the District of Columbia, App Ct. No. 03-1376, an appeal.

Third, the FCC published in its web site the brief [25 pages in PDF] that it filed with the DC Circuit in i2way v. FCC. This is a petition for review of an order of the FCC interpreting its rule that provides that no more than ten channels for a trunked mobile radio operation may be applied for in a single application. Oral argument is scheduled for March 7, 2005. This case is i2way v. FCC and USA, U.S. Court of Appeals for the District of Columbia, App Ct. No. 03-1174, a petition for review of a final order of the FCC.

People and Appointments

12/21. Rep. Jim DeMint (R-SC) and Rep. David Vitter (R-LA) will be named to the Senate Commerce Committee (SCC). (Source: Senate Finance Committee release.) Both are members of the House for the 108th Congress, who won open seats in the Senate, for the 109th Congress, which will meet in January. DeMint won the seat being vacated by Sen. Ernest Hollings (D-SC), who is retiring. Sen. Hollings has long been either the ranking Democrat or Chairman of the SCC. Vitter won the seat being vacated by Sen. John Breaux (D-LA), who is also retiring. Sen. Breaux was also a member of the SCC. DeMint and Vitter will replace Sen. Sam Brownback (R-KS) and Sen. Peter Fitzgerald (R-IL). Sen. Brownback, who is a member of the SCC for the 108th Congress, will not be on the SCC in the 109th Congress. Sen. Ted StevensHe will, however, be named to the Senate Judiciary Committee. Sen. Fitzgerald is retiring. Sen. Ted Stevens (R-AK) (at left) will be named Chairman of the SCC. He will replace Sen. John McCain (R-AZ), who is term limited.

12/21. Sen. Sam Brownback (R-KS), who was a member of the Senate Judiciary Committee (SJC) until the end of the 107th Congress, will be renamed to the SJC. In addition, former Rep. Tom Coburn (R-OK), who won the open seat vacated by retiring Sen. Don Nickles (R-OK), will be named to the SJC. Brownback and Coburn will replace Sen. Larry Craig (R-ID) and Sen. Saxby Chambliss (R-GA). Sen. Chambliss will become Chairman of the Senate Agriculture Committee. Sen. Craig will become Chairman of the Senate Veterans Affairs Committee. President Bush, and members of his administration, particularly at the Department of Justice, will be relieved by Sen. Craig's departure from the SJC. He has been the leading Republican advocate for sunsetting some of the provisions of the USA PATRIOT Act. The SJC has jurisdiction over this issue. Sen. Arlen Specter (R-PA) is likely to be named Chairman of the SJC. The outgoing Chairman, Sen. Orrin Hatch (R-UT), is term limited.

12/21. Sen. Mike Crapo (R-ID) will be named to the Senate Finance Committee. He will replace departing Sen. Don Nickles (R-OK), who did not run for re-election.

12/21. Yasuhei Taniguchi was elected Chairman of the of the World Trade Organization's (WTO) Dispute Settlement Body's (DSB) Appellate Body for a term that will run until December 16, 2005. He will replace Georges Abi-Saab, who was the Chairman for 2004. See, WTO release.

12/21. The Federal Reserve Bank of Dallas announced that Richard Fisher will become its President, effective April 4, 2005. Fisher is currently Vice Chairman of Kissinger McLarty Associates, Henry Kissinger's firm. He will replace Robert McTeer, who resigned November 4, 2004, to become Chancellor of the Texas A&M University System. McTeer had been vocal on several technology related public policy issues, including providing more visas for high tech workers. See for example, May 20, 1999 op ed in the Wall Street Journal by McTeer, 1998 Annual Report of the Federal Reserve Bank of Dallas, and TLJ story titled "Sen. Gramm to Introduce Bill to Raise H1B Visa Cap", June 3, 1999.

More News

12/21. The Federal Communications Commission (FCC) released a Forfeiture Order [2 pages in PDF] that fines VIA Technologies, Inc. $14,000 for importing and marketing unauthorized radio frequency (RF) devices. The offending items are two models of its computer central processing unit boards. This order is DA 04-3947.

Go to News from December 16-20, 2004.