Patton Boggs TechComm Industry Update - Week of January 21, 2009

    21 January 2009

    Genachowski to be Tapped as Next FCC Chairman; Chairman Martin Announces his Departure

    President-elect Barack Obama is reportedly poised to announce that Julius Genachowski is his choice for FCC Chairman. It is rumored that the transition team wants to announce the new FCC Chairman at the same time they announce Obama’s pick for the Federal Trade Commission Chairman. Political maneuvering has delayed the FTC pick, and therefore delayed the announcement of Genachowski.

    Chairman Kevin Martin announced at last week’s FCC Open Meeting that he will leave the FCC on January 20, 2009. He will be joining The Aspen Institute as a senior fellow in the Communications and Society Program. An interim FCC Chairman has not yet been announced, but it is expected to be Commissioner Michael Copps.

    The Senate must confirm Genachowski’s nomination, a process that may move swiftly given the current Congressional focus on the impending digital television transition deadline, February 17, 2009, and proposed broadband stimulus legislation. Timing of the Senate confirmation process is difficult to predict, but we expect that it may go as quickly as it did for Chairman Martin in 2001, which took slightly less than a month from nomination to confirmation.

    Genachowski is co-founder of Rock Creek Ventures and LaunchBox Digital (an investor and developer of digital media and commerce companies), and a special advisor at General Atlantic (a global investment group). He was a senior executive at IAC/Interactive Corp from 1997 to 2005. From 1994-1997 he was at the FCC, including as chief counsel to Chairman Reed Hundt. He also clerked for Supreme Court Justices Souter and Brennan (ret.) and D.C. Circuit Court of Appeals Chief Judge Abner Mikva. He also worked for then-Rep. Charles Schumer (D-NY) and on the special Iran-Contra joint committee.

    Broadband Stimulus Detailed in House Plan

    After weeks of speculation, House Democrats unveiled an expansive economic stimulus plan, with roughly $550 billion in spending and $275 billion in tax cuts that would dedicate $6 billion to accelerating the deployment of high-speed Internet access in hard-to-serve parts of the country. The recovery plan also devotes $10 billion to science and technology research administered by the National Institute of Standards and Technology and the National Science Foundation. These funds should benefit innovation science and engineering for the technology and communications industries. ( Contact us for a more comprehensive piece on the Broadband Stimulus proposal.)

    Although the $6 billion in broadband spending is less than many communications industry stakeholders had sought, broadband’s place in the stimulus package demonstrates its importance in jumpstarting the economy for the new Congress and the incoming Administration. The broadband plan would impose net neutrality open access and other conditions on grant recipients and would channel funding through a number of existing federal programs, including:

    Rural Utilities Service Grants -- $2.825 billion. The Department of Agriculture’s Rural Utilities Service (“RUS”) would receive $2.825 billion in recovery funding to support the installation of “open access” broadband infrastructure for distance learning, telemedicine and broadband. This funding would be provided through the existing RUS grant programsState Broadband Data and Development Grants -- $350 million. These funds will be administered by the Commerce Department’s National Telecommunications and Information Administration (NTIA) and would provide competitive grants for statewide initiatives to identify and track the adoption and availability of broadband services.

    Wireless and Broadband Grants for Unserved/Underserved Areas – $2.825 billion. This new program to be administered by NTIA would include $1 billion for Wireless Deployment Grants for wireless voice service or “advanced wireless broadband,” and $1.825 billion for Broadband Deployment grants for rollout of wireline basic broadband service or “advanced broadband service.

    “Advanced broadband service" is defined as 45 Mbps for downloads and 15Mbps for uploads, while "advanced wireless broadband service” is defined as 3Mbps for uploads and 1 Mbps for downloads. “Basic broadband service" is 5 Mbps for downloads and 1Mbps for uploads.

    Education Technology Grants -- $1 billion.  The Department of Education will administer a grant program to upgrade classrooms with advanced technology and connect underprivileged schools with broadband service through a $1 billion infusion to the Education Technology program.

    Health Information Technology Grants – $20 billion. Another $20 billion in grants would be administered for health information technology, although the bill’s details are limited. 

    Tax Credits. A number of general tax credit proposals are contained in the legislation, including tax credits for companies on past profits dating back five years instead of two; “bonus” depreciation for businesses investing in new plants and equipment; doubled write-offs for capital investments and new equipment purchases for small businesses; and tax credits for hiring disconnected youth and veterans.

    Next Steps. The House Appropriations and Ways and Means Committees are expected to take up the recovery plan sometime next week. The House is expected to vote on the recovery package this week. Meanwhile, the Senate is developing a version of the recovery package, and intense lobbying is expected during the next few weeks, not just between Democrats and Republicans but also between the new administration and Congress, as lawmakers push to pass the stimulus bill by mid-February.

    DTV Transition Deadline Delay Ahead?

    The Obama transition team called on Congress to delay the DTV transition beyond February 17th and afford more time for educating consumers. In a letter to Senators Jay Rockefeller, IV, Chairman of the Committee on Commerce, Science & Transportation (D-WV) and Kay Bailey Hutchinson, Ranking Member on the Committee on Commerce, Science & Transportation (R-TX), and Reps. Henry A. Waxman, Chairman of the Committee on Energy and Commerce (D-CA) and Joe Barton, Ranking Member of the Committee on Energy and Commerce (R-TX), the Transition Team indicated that it discovered “major difficulties” in the execution of the DTV transition, including underfunding of the DTV-to-analog converter box coupon program. The Transition Team expressed concern for the 1 million people on the coupon waiting list, which is expected to increase to more than 5 million by early February, 2009. Funding to support the DTV transition is also inadequate, according to the Transition Team, and there are insufficient resources available to help consumers, especially low-income, rural consumers and the elderly.

    Sen. Jay Rockefeller (D-WV) announced he had authored legislation to extend the DTV transition deadline to June 12, 2009. In Rockefeller’s view, the United States is not ready for the transition and a delay will help the country’s “most vulnerable citizens,” including the poor, the elderly, the disabled, foreign language speakers and those living in rural areas. But Senate Republicans successfully blocked the measure and now Senate Democrats are working to bring the measure back for a vote this week. In the House, Rep. Henry Waxman (D-CA) drafted similar legislation, but a mark-up of that legislation is now on hold pending Senate action on a DTV transition deadline extension measure. Legislation also is expected to change the Anti-Deficiency Act, allowing NTIA to continue to distribute DTV converter box coupons. 

    FCC Commissioners Michael Copps and Jonathan Adelstein support an extension of the DTV transition deadline, and outlined in a letter to Congress some of the current problems with the DTV transition that could be alleviated by a delay, such as inadequate coordination, consumer education, and consumer support, and a lack of attention to reception and closed caption issues.

    In a New York Times editorial, former FCC Chairmen William Kennard and Michael Powell echoed the concerns of the Transition Team. The former Chairmen commented that it is becoming increasingly clear that the United States is not ready for the DTV transition. The converter box coupon program is out of money and it is unclear if there are enough converter boxes available for purchase, with or without a coupon, to meet the surge in demand expected as February 17, 2009 approaches. The FCC’s call center is only equipped to handle 350,000 calls per day but 1.5 million calls are expected in the days following the DTV transition. Television viewers may also need help installing their converter box or adjusting a rooftop antenna but the government has not trained or contacted community groups about providing these services.  

    FCC Chairman Kevin Martin disagrees with the Transition Team’s suggestion that the DTV transition should be delayed. Chairman Martin states that a delay would cause consumer confusion and disadvantage wireless companies that won licenses at auction to use the spectrum for 4G wireless services. He also acknowledged there are converter box coupon problems but said the problems are not significant enough to warrant delaying the DTV transition date. NTIA also does not support and extension of the DTV transition deadline.

    In a letter to Chairman Martin, FCC Commissioner Robert McDowell indicates his concern with the FCC’s call center and its inability to handle call volume. which will increase over the next month. The FCC’s call center is one of the primary ways for consumers to receive assistance regarding the DTV transition and the installation of converter boxes. In Commissioner McDowell's view, the FCC’s call center is unprepared and consumers are faced with busy signals, dropped calls, automated electronic menus, long hold times, and no weekend call center access. Despite all of this, Commissioner McDowell believes the DTV transition should proceed as scheduled but the FCC needs to quickly improve its outreach and call center. 

    Broadcasters, the cable industry and the government have spent hundreds of millions of dollars and donated airtime to  ensure viewer  awareness of the February 17th   DTV transition deadline. Some communities already completed the transition: Wilmington, N.C. completed its transition on September 8, 2008 and the state of Hawaii transition  was completed on January 15, 2009, to accommodate native birds.

    Prior to the FCC’s January Open Meeting, the FCC adopted an order permitting some full-power television stations to broadcast public safety and digital transition information on analog signals for 30 days after the February 17, 2009 DTV transition date.

    FCC’s Strategic Plan

    At last week’s FCC Open Meeting, the Commissioners heard presentations from senior agency officials in each Bureau regarding implementation of the agency’s strategic plan and comprehensive review of FCC policies and procedures. Comments about the DTV transition and a nationwide broadband strategy dominated the meeting. Other notable accomplishments and achievements are highlighted below.

    The FCC’s Wireless Telecommunications Bureau (WTB) reported that the wireless industry saw tremendous growth in 2008 with 263 million total wireless subscribers in 2008, up from 243 million in 2007. The use of text, picture and video messaging was up remarkably from 2005. Wireless subscribers sent 601 billion text messages in 2008, up 945% since 2005, and sent 5.6 billion picture and video messages in 2008, up 1875% since 2005. There are at least 4 wireless providers in 90.5% of the country. In the last two auctions, WTB raised almost $39 billion dollars ($13.7 billion in AWS-1 and $19.1 billion in 700 MHz).

    In 2008, the Wireline Competition Bureau (WCB) focused on eliminating legacy regulations and encouraging infrastructure investment. The Bureau boasted increased broadband subscriptions and higher speeds with 121.2 million broadband subscribers in 2007, up from 82.8 million in 2006, with 45.3 million advanced service lines at speeds of 2.5 Mbps or greater. Going forward, the WCB plans to focus on ensuring access to all Americans, protecting an open internet, safeguarding consumer privacy and reducing long distance service costs. The WCB highlighted the success of its Rural Health Care Pilot Program. When complete, the program will connect 600 Rural Health Care participants. The WCB’s biggest challenge in 2009 will be to tackle Universal Service and Intercarrier Compensation reform.

    The Public Safety and Homeland Security Bureau (PSHSB) counts among its accomplishments, extending 911 requirements to VoIP providers, extending the Emergency Alert System to other communications media, and adopting rules for emergency alerts over mobile handsets. The PSHSB will continue its efforts to implement a nationwide interoperable broadband network in the 700 MHz spectrum, complete the 800 MHz rebanding, and promote its Telecommunications Service Priority and Wireless Priority Service.

    The Enforcement Bureau (EB) noted that it stepped up its enforcement activities under the leadership of Chairman Martin. As a result, the EB issued fines and forfeitures to the tune of $151 million in 2008.

    Markey, Boucher to Switch Gavels on House Energy and Commerce Subcommittees

    Congressmen Ed Markey (D-MA) and Rick Boucher (D-VA) announced last week that they are poised to switch Energy and Commerce subcommittee chairmanships in the 111th Congress. Markey will chair the Subcommittee on Energy and Environment, and Boucher will oversee the Communications, Technology and the Internet Subcommittee.

    “At a time when our economy and planet are both in crisis, I am eager to chair the Subcommittee on Energy and Environment,” Markey said. “I look forward to pursuing the legislative agenda on climate change and clean energy at this critical time ... In the short term, Rep. Boucher and I will work together to ensure a smooth transition on DTV issues at this critical time.”

    Boucher said he looks forward to shaping “telecommunications policy, including expanding access to broadband and ensuring a successful DTV transition.”   Boucher's committee, the Communications, Technology, and the Internet Subcommittee, has jurisdiction over telecommunications, broadcasting, cable, and the Internet. 

    Rep. Boucher, who hails from southwestern Virginia, has been a strong advocate of rural interests and reform of the Universal Service Fund. Recently, he was influential in delaying reform of intercarrier compensation and USF, which was viewed as adverse to rural interests. With respect to copyright issues, Boucher supports “fair use” rights, which content companies seek to limit.

    New Republican House Committee Appointments

    The Republican House leadership recently announced the following assignments for Committees with jurisdiction over communications and broadband issues:

    House Committee on Energy and Commerce

    • Joe Barton, TX, Ranking Member

    • Ralph Hall, TX

    • Fred Upton, MI

    • Cliff Stearns, FL

    • Nathan Deal, GA

    • Ed Whitfield, KY

    • John Shimkus, IL

    • John Shadegg, AZ

    • Roy Blunt, MO

    • Steve Buyer, IN

    • George Radanovich, CA

    • Joseph Pitts, PA

    • Mary Bono Mack, CA

    • Greg Walden, OR

    • Lee Terry, NE

    • Mike Rogers, MI

    • Sue Wilkins Myrick, NC

    • John Sullivan, OK

    • Tim Murphy, PA

    • Michael Burgess, TX

    • Marsha Blackburn, TN

    • Phil Gingrey, GA

    House Committee on the Judiciary

    • Lamar Smith, TX, Ranking Member

    • F. James Sensenbrenner Jr., WI

    • Howard Coble, NC

    • Elton Gallegly, CA

    • Bob Goodlatte, VA

    • Dan Lungren, CA

    • Darrell Issa, CA

    • Mike Pence, IN

    • Randy Forbes, VA

    • Steve King, IA

    • Trent Franks, AZ

    • Louie Gohmert, TX

    • Jim Jordan, OH

    House Committee on Agriculture

    • Frank D. Lucas, OK

    • Bob Goodlatte, VA

    • Jerry Moran, KS

    • Timothy V. Johnson, IL

    • am Graves, MO

    • Mike Rogers, AL

    • Steve King, IA

    • Randy Neugebauer, TX

    • Virginia Foxx, NC

    • K. Michael Conaway, TX

    • Jeff Fortenberry, NE

    • Jean Schmidt, OH

    • Adrian Smith, NE

    • Robert E. Latta, OH

    • Phil Roe, TN

    • Blaine Luetkemeyer, MO

    • Glenn W. Thompson, PA

     

    The LTE Standard Is Done

    The Third General Partnership Project (3GPP) completed specifications for the Long Term Evolution (LTE) standard and final formal ratification is expected in March 2009. This means that manufacturers are now able to build equipment that will comply with the final LTE standard. For carriers, such as AT&T, T-Mobile and Verizon Wireless, which are planning on launching 4G services using LTE, they are now able to construct their networks using standardized LTE equipment, rather than non-standardized equipment which would need to be replaced or upgraded at a later date.

    Clearwire WiMAX Launch in Portland; Other WiMAX and LTE Launches Planned

    Clearwire launched its second WiMAX market, Portland, Oregon. In Portland, Clearwire’s service is available for purchase in three retail stores and through its website, with residential WiMAX service priced at $20 a month and mobile WiMAX for $30 a month. As reported previously, Sprint announced plans to launch its Xohm service in three markets by the end of 2008, Baltimore, Washington, D.C. and Chicago. Service was launched in Baltimorein September, 2008. Clearwire constructed networks in Atlanta, Las Vegas and Grand Rapids, Michigan by the end of 2008 but service has not yet launched.  If response to Cleawire's service is strong, it could convert its existing fixed wireless networks to WiMAX, which would provide its WiMAX customers with a much larger footprint and help it compete against other mobile wireless broadband competitors.  

    Verizon Wireless announced that its 4G network will launch in 2009 instead of 2010. Open Range announced that it closed its $100 million investment from One Equity Partners. 

    Comcast’s Network Management Practices in Question Again

    As we previously reported, the FCC found Comcast’s network management practices anticompetitive and discriminatory because they unduly interfere with customers’ rights to access lawful Internet content and use applications of their choice. As a result, the FCC required Comcast to disclose the details of its discriminatory network management practices, submit a compliance plan describing how it will stop these discriminatory management practices, and disclose to customers and the Commission the network management practices that will replace current practices. On September 19, 2008, Comcast submitted with the FCC its new broadband network management practices.

    In a recent letter, Dana Shaffer, Chief of the Wireline Competition Bureau, and Matthew Berry, the FCC’s General Counsel, seeks clarification from Comcast regarding an apparent discrepancy between its September 2008 filing and its advertised practices. Comcast’s website suggests that its Comcast Digital Voice is a separate facilities-based IP phone service that is not affected by its new network management practices. But in its filing, Comcast draws no distinction between Comcast’s VoIP service offering and its competitors’ service offerings.

    Also, Comcast apparently omitted its own VoIP service from some network-management techniques it uses with respect to other traffic. The FCC suggests that Comcast is treating its VoIP offering as a telephone service offering which is different from its broadband offering. If so, the FCC asked that Comcast explain why the FCC should not treat and regulate Comcast’s VoIP offering as a “telecommunications service” under Title II. The FCC also asked Comcast to explain this discrepancy between its advertised service and the service described in its September 2008 filing. The FCC also requested Comcast to explain its disparate treatment of its own VoIP service compared to its competitors’ VoIP service. Comcast must submit its response by January 30, 2009.

    800 MHz Spectrum Available for Public Safety Licensing Beginning on January 28, 2009

    On January 28, 2009, the FCC’s Public Safety and Homeland Security Bureau (Bureau) will begin accepting applications for available channels in the 809-809.5/854-854.5 MHz portion of the 800 MHz band (Channels 231-250) vacated by Sprint Nextel Corporation (Sprint). From that date through January 27, 2012, vacated channels will be available exclusively for licensing to public safety eligible entities. From January 28, 2012 to January 27, 2014, vacated channels will be available exclusively for licensing to public safety eligible entities and critical infrastructure industry eligible entities.

    Due to the limited availability of channels during the exclusive eligibility period, applicants will not be permitted to apply for more than five channels per fixed location. After the exclusive eligibility period, any remaining vacated channels will be available for licensing to all eligible applicants. Sprint may continue existing operations on these channels after new licenses are granted, but it must cease operations within 60 days of notice that a new licensee intends to activate the channel. If you are interested in learning more about the spectrum that will be made available, please contact us.

    Annual CPNI Certification Due By March 1, 2009

    Annual Customer Proprietary Network Information (CPNI) certifications must be filed with the FCC no later than March 1, 2009. In order to assist filers, the FCC recently released a Public Notice providing filing instructions and a sample certificate for filing. This certification requirement was adopted by the FCC a few years ago when it strengthen its CPNI rules in response to carrier data privacy breaches.

    AT&T To Pay Over $14.5 Million For FCC and Court Violations

    AT&T has entered into a Consent Decree with the FCC’s Enforcement Bureau for possible violations of the FCC’s universal service fund (USF) contribution recovery and customer proprietary network information (CPNI) rules. According to the Consent Decree, AT&T apparently failed to comply with the FCC’s opt-out notice procedures which allow customers the right to restrict the use of, disclosure of, and access to their CPNI. AT&T also apparently recovered federal USF contribution costs from its customers in excess of the amounts permitted under the FCC’s rules from 2002 until 2008. AT&T has since refunded to its existing customers the overcharges, but has not provided refunds to certain of its former customers. Under the Consent Decree, AT&T has agreed to make a voluntary contribution to the US Treasury of $10,080,600.00. A portion of this money will be used to refund its former customers for AT&T’s overcharges (approximately $0.72 per former customer).

    In a somewhat related matter, AT&T agreed to pay $2.05 million as part of a civil settlement with the U.S. Department of Justice (DoJ) and entered into a separate Consent Decree with the FCC, agreeing to pay $2.38 million, for possible similar violations of the terms and conditions of the AT&T – Dobson Merger Order. As part of the acquisition, AT&T was required to divest wireless licenses in three rural areas in Kentucky and Oklahoma. According to DoJ, however, AT&T allegedly failed to separate confidential customer account information of the divested assets from its own records and to institute additional safeguards to protect subscribers’ privacy. DoJ filed a petition in the U.S. District Court for the District of Columbia asking it to find AT&T in civil contempt of a 2008 consent decree and related court order. At the same time, DoJ filed a settlement agreement and order that would resolve its concerns. AT&T’s payment includes reimbursement to the government for the cost of its investigation into AT&T’s alleged violations.

    Nortel Seeks Bankruptcy Protection

    Infrastructure equipment provider Nortel filed for Chapter 11 bankruptcy protection in the United States and protection under Canada’s Companies’ Creditors Arrangement Act. In a prepared statement, Nortel’s President and CEO Mike Zafirovski stated: “These actions are imperative so that Nortel can build on its core strengths and become the highly focused and financially sound leader in the communications industry that its people, technology and customer relationships show it ought to be. I am confident that the actions we’re announcing today will be the fastest, most effective means to translate our improved operational efficiency, double-digit productivity, focused R&D and technology leadership into long-term success. I want to reaffirm Nortel’s dedication to delivering world-class solutions and services to customers.” There is some speculation that Nortel may sell rather than restructure. Possible purchasers include Hauwei Technologies or Ericsson. A sale to Hauwei would increase its chances of being selected as Verizon Wireless’ LTE vendor and provide it with greater access to the North American market.

    Retailer Launches Mobile Commerce Site To Increase Sales

    Shoppers may now purchase Polo Ralph Lauren clothing and accessories at m.RalphLauren.com using their mobile wireless devices. Ralph Lauren uses two-dimensional bar codes so shoppers are able to access the site by pointing and clicking at codes that appear in advertisements, displays and other locations. The necessary bar code reading software may be downloaded from Ralph Lauren’s site or by sending a text message to the company. Ralph Lauren has not disclosed any sales figures from its mobile site but the company says the site has been very popular. The shopping site also includes men’s and women’s style guides, fashion trivia and a company magazine about lifestyles.

    Sirius XM’s First Interoperable Satellite Radio Receiver Available This Year

    At the annual Consumer Electronic Show, Sirius XM debuted its first interoperable satellite radio receiver. The receiver will sell for $249.99 and will be available in stores in early Spring. A $19.99 per month subscription fee, higher than the original Sirius or XM monthly fees, will provide access to all of Sirius XM’s programming. The receiver also has the ability to record and store up to 60 minutes of live Sirius or XM programming.

    Mobile TV May Be Available By Year’s End

    By the end of the year, consumers may be able to watch free, over-the-air television on their mobile devices. A number of television broadcasters and electronic manufacturers announced plans to deliver television service to mobile digital devices. According to the broadcast industry's Open Mobile Video Coalition (OMVC), the initial plan proposes the transmission of local news, entertainment and sports programming by at least 63 stations in 22 cities, including New York, Chicago, Philadelphia, San Francisco, Boston and Washington, D.C. The stations will include affiliates of ABC, CBS, Fox, NBC, CW, ION and PBS but the offerings will differ city to city. The stations plan to simulcast their regularly scheduled programming.

    FCC Seeks Comment on Rules Adopted in 1997

    The FCC is seeking comment on rules adopted in 1997 which have, or might have, a significant economic impact on small businesses. Among other rules, the Commission will review an environmental assessment and impact rule, several equipment authorization rules, a satellite digital audio radio licensing rule, and several Part 27 wireless communications services rules, including criteria for comparative renewal proceedings. The FCC will consider the continued need for the rule, the nature of complaints received concerning the rule, the complexity of the rule, the length of time since the rule has been revised, and the degree to which technology, economic or other factors have changed in the area affected by the rule. Comments are due March 2, 2009.

    Additional Airlines Offer In-Flight Internet Service

    American Airlines, Virgin America, and now Delta and United Airlines all offer in-flight Internet service through Aircell’s Gogo network. As we previously reported, the service allows travelers to surf the Internet, e-mail and text message while in flight. Delta now offers Internet service on selected flights for a fee of $10 on short flights and $13 on flights over three hours. Delta expects to offer Gogo in 300 of its planes by the end of 2009 and in 250 former Northwest planes shortly thereafter. United Airlines recently announced plans to offer Gogo on 13 Boeing 757 planes that fly primarily between New York City and Los Angeles or San Francisco. American Airlines started offering Gogo earlier this year and offers the service on some transcontinental flights. Virgin America currently offers Gogo on one plane and expects to quickly increase that number to five planes.

    DC Cancels Controversial Cell Phone Blocking Demonstration

    The DC Department of Corrections (Department) cancelled its controversial cell phone blocking tests scheduled for Thursday, January 8, 2009. On December 16, 2008, the Department filed a request with the FCC for special temporary authority to host a demonstration of equipment designed to block wireless telephone calls. The Department argued that contraband cell phones are a major security risk within correctional settings and the test could help keep these devices out of the hands of imprisoned criminals. The Department ensured that the demonstration can be limited to a jail or prison facility without interruption to other cell phones or lines of communication outside of the facility. Based on these representations, the FCC’s Wireless Telecommunications Bureau (WTB) granted the Department’s request. The WTB stated that the demonstration will be narrowly tailored to limit impact on authorized wireless operations, while maximizing public safety benefits.

    On January 6, 2009, CTIA filed a petition for reconsideration and stay of the FCC’s Order and requested referral of the WTB’s decision to the full Commission. CTIA argued that the WTB issued the order without notice to potentially affected parties and without providing opportunity for comment. CTIA also argued that Section 333 of the Communications Act expressly prohibits the use of cell phone jamming technology and the WTB’s decision violates this provision of the Act. On January 7, 2009, CTIA also sought a writ of mandamus from the DC Circuit requesting that the court vacate the WTB’s Order. The court ordered the FCC to reply by 8 pm that same day. As a result, the FCC and the Department both sent letters to the court stating that the demonstration was cancelled. CTIA pledged to work with corrections officials, technology companies and other interested parties to identify, detect and confiscate wireless devices in prisons.

    Public Safety Spectrum Trust (PSST) Seeks Spectrum in Economic Stimulus Plan

    The PSST was selected by the FCC to be the licensee of a 10 MHz block of 700 MHz spectrum that was set aside for a joint public-private emergency communications network, but the minimum bid for the spectrum was not received during the FCC’s 700 MHz auction, and the proposal failed. FCC Chairman Kevin Martin supports the idea of a public-private partnership but now states a better option may be for the government to fund the construction of such a network. While the FCC re-evaluates its auction rules for the spectrum, the PSST is encouraging President-elect Obama to include $15 billion in funding in his proposed economic stimulus plan for a shared interoperable emergency communications network. Under the PSST proposal, the government would fund the initial construction of the network and a commercial operator would be responsible for the costs of operating and maintaining the network.

    Legislation Seeks To Staunch Return of Fairness Doctrine

    Senators introduced two bills (S. 34 and S. 62) recently that would prevent the FCC from reinstating the Fairness Doctrine, a repealed policy that required broadcasters to present opposing viewpoints on issues of public importance. The Fairness Doctrine dates back to 1949. It was abolished by the FCC in 1987 following a court decision that year declaring that the doctrine was not mandated by Congress and that the FCC was not required to enforce it. The text of each bill is not yet available. Similar bills were introduced in the 110th Congress, but never made it to a final vote by both chambers of Congress.

    Senate Bill Would Permanently Ban Internet Access Taxes

    Sen. John Ensign (R-NV) introduced a bill to make permanent the moratorium on certain taxes relating to the Internet and to electronic commerce. The 1998 Internet Tax Freedom Act imposed a moratorium temporarily preventing state and local governments from imposing new taxes on Internet access. In October 2007 the moratorium was extended to November 1, 2014. The law prohibits taxation of all types of Internet connections, from traditional dial-up services to high-speed broadband lines. It also “grandfathers” state taxes on Internet access that predate October 1, 1998, by allowing them to continue until November 2014.

    Telecommunications Policy Issues In 2009

    After intense focus on the DTV transition during the first part of the year, the White House, the Congressional committees overseeing the FCC and the FCC are expected to shift focus to other outstanding issues such as Universal Service, intercarrier compensation, broadband deployment, net neutrality, commercial and public safety spectrum allocations, and FCC reform. Similar to former President Clinton, President-elect Obama may hold a weekly interagency Internet or telecommunications meeting in order to coordinate efforts on Internet and broadband deployment. Congressional staffers noted during a recent conference that there is a bi-partisan commitment to work together on communications issues.

    NCTA Urges New Administration to Promote FCC Reforms

    In a recent meeting with President-elect Barack Obama’s transition team, the cable industry urged the incoming Administration to reform the FCC to promote swifter action to keep pace with technology changes and implement a more transparent process that invites public input. National Cable & Telecommunications Association President Kyle McSlarrow said that the Commission should formalize FCC Chairman Kevin Martin's "informal" practice of providing public notice when items are circulated among the other commissioners for a vote. He also suggested that agendas for public meetings be set three months in advance, rather than the current three weeks, and texts of the actual rule or decision be made public. McSlarrow also recommends a 180-day shot clock on waiver requests, and urges the FCC to adhere to the informal 180-day clock it set for merger reviews. He also wants texts of FCC orders released within 30 days of adoption. The FCC’s existing practices were the subject of a year-long investigation by the House Energy & Commerce Committee and its Oversight and Investigations Subcommittee. The committee and the subcommittee’s majority staff issued a report last month that criticized of the agency's operation.

    McSlarrow also outlined suggestions for increasing broadband deployment, which included recognizing and even helping underwrite the need to reclaim analog channels to free up bandwidth for faster broadband service. He said the new administration policies should "resist placing new demands and constraints on bandwidth use that are totally divorced from what consumers want: faster broadband, more high-definition content, and the deployment of new innovative and interactive services that take advantage of our two-way network."

    Los Angeles Billboard Ban Upheld In Court

    A federal appeals court in California upheld the City of LA’s ban on most new billboards. Metro Lights, seller of billboard advertising space, sued the City of Los Angeles and argued that the City’s billboard ban violated its free-speech rights. Metro also complained that commercial advertisers were not being treated the same as the City because the City continued to sell advertising on public property such as bus shelters and restrooms. On appeal, the Court said that the City’s billboard ban was constitutional because it served a legitimate and narrow government interest of promoting traffic safety and eliminating blight. Effective December 26, 2008, the Los Angeles City Council approved a three month moratorium on new billboards.

    FCC Seeks Comment on Transition of Cellular Service to Geographic Market-Area Licensing

    The FCC is seeking comment on a petition filed by CTIA-The Wireless Association (CTIA) seeking to transition cellular licenses to a geographic market area-based license system. CTIA argues that such a transition will encourage the transition from analog to digital technologies, reduce recordkeeping burdens on both licensees and the Commission, create regulatory parity with other CMRS providers, provide a licensing framework that more accurately reflects the areas actually served by cellular service providers, and protect “incumbent” cellular licensees from interference from potential new entrants. CTIA proposes that the Commission re-issue all cellular licenses to incumbents on a Cellular Market Area (CMA) basis, subject to two exceptions. Comment deadlines on CTIA’s petition have not yet been announced.

    Arbitron Settles PPM Suits

    Arbitron agreed to a stipulated order with New York Attorney General Andrew Cuomo that ends all pending Portable People Meter (PPM) claims against Arbitron filed with the New York Supreme Court on October 9, 2008. New York claimed that Arbitron violated executive, business and civil rights laws because of the way it implemented PPM in New York. The State of New Jersey filed a similar lawsuit against Arbitron, which was dismissed when the parties entered into a settlement agreement. A New Jersey settlement incorporates the New York settlement terms with a few modifications and applies to the Philadelphia market as well.

     

     

     

     

     

    INDUSTRY CALENDAR

    Meetings and Events

    January 21-22, 2009

    • The Future TV Show 2009, New York, NY

    January 26, 2009

    • Oral Arguments in National Telephone Cooperative Association v FCC, No. 08-1071, U.S. Court of Appeals for the D.C. Circuit

    January 30, 2009

    • FCC Consumer Advisory Committee meeting, Washington, D.C.

    February 2-4, 2009

    • 4G Wireless Evolution, Miami Beach, FL

    February 5-7, 2009

    • CEA 2009 Winter Retreat, Jackson Hole, WY

    February 8-9, 2009

    • The Digital Broadband Migration: Imagining the Internet’s Future, Silicon Flatirons, Boulder, CO

    February 9-10, 2009

    • Radio Ink: Convergence ’09, San Jose, CA

    February 15-18, 2009

    • NARUC Winter Committee Meetings, Washington, D.C.

    February 23-25, 2009

    • Telecom Expense Management, New York, New York
    • NCTA Winter Educational Conference, Charlotte, NC

    February 25-26, 2009

    • Digital Music Forum East, New York, NY

    February 26, 2009

    • Catholic University, Columbus School of Law’s 2009 Spring Symposium presented in association with the FCBA, Washington, D.C.

    February 27, 2009

    • Greener Gadgets Conference, New York, NY

    February 27-28, 2009

    • The 4th Annual Syracuse University Communications Law & Policy Symposium presented in associated with the NY Chapter FCBA, Syracuse, NY

    March 19, 2009

    • Evaluating Software Patents, Silicon Flatirons, Boulder, CO

    March 22-24, 2009

    • NAB Futures Summit, Pebble Beach, CA

    April 1-3, 2009

    • International CTIA Wireless, Las Vegas, NV
    • The Cable Show, Washington, D.C.

    April 18-23, 2009

    • NAB Show, Las Vegas, NV

    April 22-23, 2009

    • CEA Washington Forum, Washington, D.C.

    April 27-29, 2009

    • Broadband Properties Summit 09, Dallas, TX

    May 6-7, 2009

    • Radio Ink: Hispanic Radio Conference, Los Angeles, CA

    May 11-15, 2009

    • 2009 Technology and Standards Spring Forum, St. Louis, MO

    July 19-22, 2009

    • NARUC Summer Committee Meetings, Seattle, WA

    August 5-8, 2009

    • Radio & Records: Triple A 2009 Summit, Boulder, CO

    September 15-17, 2009

    • WiMAX World 2009, Chicago, IL

    September 23-25, 2009

    • The NAB Radio Show, Philadelphia, PA

    October 7-9, 2009

    • International CTIA Wireless I.T. & Entertainment, San Diego, CA

    October 18-21, 2009

    • 2009 Technology and Standards Fall Forum, Phoenix, AZ
    • CEA Industry Forum, Phoenix, AZ

    October 25-30, 2009

    • Cable Connection, Denver, CO

    November 3-5, 2009

    • WiMAX World Emerging Markets, Prague, Czech Republic

    November 15-18, 2009

    • NARUC Annual Convention, Chicago, UL

    December 2, 2009

    • Radio Ink: Forecast, New York, NY
    • FCC Rulemakings / Deadlines

    January 21, 2009

    • FCC Deadline: Feature Group IP's Request for Forbearance from Application of Access Charges to ‘Voice-Embedded Internet’
    • Opposition Deadline: Iridium-GHQ Acquisition under FCC Review
    • Reply Comment Deadline: Tri-County Telephone Seeks Waiver to Offer
    • Transmission Component of Broadband Internet Access on Detariffed Common Carrier Basis

    January 22, 2009

    • Reply Comment Deadline: FCC Proposes New 'Replacement' Digital TV Translator Service to Improve Signal Coverage after the DTV Transition

    January 23, 2009

    • Reply Comment Deadline: CenturyTel's Acquisition of Embarq under FCC Review
    • Comment Deadline: Petition for Reconsideration of Rules to Verify AM Directional Antenna Performance

    January 26, 2009

    • Reply Comment Deadline: AT&T's Acquisition of Centennial under FCC Review

    February 2, 2009

    • Comment Deadline: Rural Cellular Association Seeks Rulemaking to Prohibit Exclusivity Arrangements between Wireless Carriers and Handset Manufacturers
    • Reply Comment Deadline: Petition for Reconsideration of Rules to Verify AM Directional Antenna Performance
    • Opposition Deadline: AT&T's Acquisition of Centennial under FCC Review

    February 6, 2009

    • 911 and E911 Network Redundancy, Resiliency, Reliability Reports Due

    February 9, 2009

    • Reply Comment Deadline: Revised Rules to Verify AM Directional Antenna Performance, Proposed Rules for Tower Construction Near AM Stations

    February 20, 2009

    • Comment Deadline: Rural Cellular Association Seeks Rulemaking to Prohibit Exclusivity Arrangements between Wireless Carriers and Handset Manufacturers

    February 24, 2009

    • Deadline for Action on Verizon's Request for Forbearance from Recordkeeping and Reporting Requirements

    March 2, 2009

    • Comment Deadline: FCC Launches Review of Rules Adopted in 1997 Affecting Small EntitiesCompliance Deadline: Annual CPNI Certifications Due

    March 5, 2009

    • Deadline for Action on Virgin Mobile's Request for Forbearance from ETC Facilities Ownership Rules

    March 31, 2009

    • Deadline: Interconnected VoIP Providers to Transmit 'Nomadic' 711 Calls to Relay Providers
    • Deadline: TRS Provider Delivery of 711 Calls to PSAPs

    Public Safety

    January 27, 2009

    • Regional Public Safety Planning Committee Meeting for Region 55 in Buffalo, New York regarding 700 MHz and 800 MHz

    February 11, 2009

    • Regional Public Safety Planning Committee Meeting for Region 15 in Des Moines, Iowa regarding 700 MHz

    March 10, 2009

    • Regional Public Safety Planning Committee Meeting for Region 19 in Kennebunkport, Maine regarding 700 MHz

    April 8, 2009

    • Regional Public Safety Planning Committee Meeting for Region 15 in Des Moines, Iowa regarding 700 MHz