Patton Boggs Techcomm Industry Update - Week of March 9, 2009

    9 March 2009

    NTIA, RUS and the FCC To Hold Broadband Meeting Tomorrow; Today NTIA and RUS Released a Request for Information

    Tomorrow, on March 10, 2009, the RUS, the NTIA, and the FCC will hold an open meeting to discuss how to implement the broadband stimulus programs that were conceived as part of the American Recovery and Reinvestment Act. The meeting will be held at the Department of Commerce at 10:00 AM to 11:30 AM and may also be viewed on NTIA’s website.  It is anticipated that the agencies will discuss the definitions of underserved, unserved and broadband and talk about their plans for disbursing funds, including timing, application requirements, and application review criteria.  We will be attending the meeting.    

    At 4:15pm today, the attached notice from the Department of Commerce (NTIA) and the Department of Agriculture (RUS) was posted on the web. It includes information about public meetings that will take place in Washington, DC and in the field. It also includes a Request for Information seeking public comment on guidelines for the distribution of  broadband stimulus funds. Written comments will be due thirty days from publication in the Federal Register, which is expected March 12, 2009. The pdf of the document is viewable from that website at  Let us know if you are interested in submitting comments in response to the questions posed in the Request for Information.  Also inform us if you'd like to attend any of the scheduled meetings for March in Washington, DC or in the field.

    FCC, FTC and CIO Candidates Named

    President Obama has finally named his next FCC Chairman, the next FTC Chairman and the nation’s Chief Information Officer.  Last Tuesday, President Obama nominated Julius Genachowski as chairman of the FCC.  The President also announced his pick for the next FTC Chairman, Jon Leibowitz.  The Senate must confirm Genachowski’s nomination, but no confirmation is needed for Leibowitz.  Vivek Kundra also was named the Federal Chief Information Officer (CIO).

    The White House also is considering a list of candidates for the other vacant FCC Commissioner slots.  The front runner for the democratic spot is Mignon Clyburn, daughter of House Majority Whip Clyburn and who served on the Public Service Commission of South Carolina.  She would replace Jonathan Adelstein, who is under serious consideration to head USDA’s Rural Utilities Service (RUS).  According to press reports, contenders for the GOP spots include Meredith Atwell Baker, former Acting Assistant Secretary for NTIA; Lee Carosi Dunn, general counsel for Senator John McCain of Arizona; Hilda Legg, former RUS administrator; FCC Deputy General Counsel Ajit Pai; Bryan Tramont, former chief of staff to former FCC Chairman Michael Powell; A.B. Cruz III, executive vice president and chief legal officer at Scripps Networks Interactive; and Mike O'Reilly, policy analyst with Senate Republican Policy Committee Chairman John Ensign from Nevada. 

    Leibowitz is expected to focus more on an active role for the FCC in protecting consumers, securing data, and ensuring consumer privacy.  He will likely move away from the self-regulatory approach adopted by the current FTC administration.

    Kundra, the nation’s first CIO, presently serves as the Chief Technology Officer for the District of Columbia under Mayor Adrian Fenty where he is responsible for technology operations and strategy for 86 agencies.  The nation’s CIO will direct the policy and strategic planning of federal information technology investments, oversee federal technology spending, and ensure system interoperability and information sharing across the federal government. 

    Ohio, Montana Rural Health Care Participants Seek Broadband Provider

    Two participants in the Rural Health Pilot Program have issued requests for proposals to build broadband networks to connect health care centers in Montana and Ohio. 

    Health Information Exchange of Montana proposes a new fiber network that will connect approximately nine facilities to enable distance consultation, electronic record keeping and exchange, disaster readiness, clinical research and distance education services.  The new network also will serve as a connection point to Internet2 or National Lambda Rail.  Maximum support: $13.6 million. Posted contract date: 2/3/09. Allowable contract date: 3/3/09.

    Northeast Ohio Regional Health Information Organization plans a project that will expand an existing network to connect approximately 19 medical facilities in 22 counties at speeds ranging from 100 Mbps for sites connected via wireless and 1 Gbps for sites connected with fiber.  The new network would connect with Internet2 and National LambdaRail.  Maximum support: $11.2 million. Posted contract date: 2/25/09. Allowable contract date: 3/25/09.

    Cyren Call Severs Ties with the Public Safety Spectrum Trust

    Cyren Call announced late last week that it will not longer be the official advisor to the Public Safety Spectrum Trust (PSST) and the related contract between the parties has been terminated.  Several factors including the lack of adequate funding, the FCC’s continuing inability to auction and/or allocate the 700 MHz D-block spectrum, change of administration, and the continuing financial crisis, led the parties to end their relationship.  The PSST was selected as the public safety licensee for the FCC’s 10 MHz 700 D-block license which is designated for public safety. As you may recall, the D Block did not meet its $1.3 billion reserve price and the auction failed. The FCC has sought comment on whether to revise the 700 MHz public/private partnership and re-auction the spectrum, but has not yet taken formal action on how to auction the spectrum. 

    Morgan O’Brien, Chairman of Cyren Call, seemed encouraged by Congress’s inclusion of broadband in the stimulus package, stating “ … the broadband communications provisions in the American Recovery and Reinvestment Act seem to suggest an expanded role for state and local governments around the country, many of whom have long grappled with the problems caused by the lack of public safety communications interoperability.  This, hopefully along with the extensive record compiled by the [FCC], will be integrated into and will influence the thinking of the FCC.”  O’Brien remained optimistic that the FCC and the new Congress would address the public safety network problems, but said, “… there is no way of knowing when or along what path the process will move forward.”  Because of this, O’Brien said Cyren Call ended its formal relationship with the PSST.  

    House USF Hearing to Focus on High-Cost Fund

    A House Communications, Technology and Internet Subcommittee hearing slated for next Thursday on the Universal Service Fund is likely to focus on reforming the High-Cost Program and expanding it to include broadband services.  Rick Boucher, D-VA, the Subcommittee Chairman, may use the hearing as a springboard for retooling USF legislation from the previous Congressional session before he reintroduces it with Rep. Lee Terry, R-NE.  Although a witness list has not yet been announced, it is expected to include a representation of small, medium and large wireline and wireless carriers.

    New Patent Bill Still Garners Early Skeptics

    Bipartisan legislation introduced last Tuesday to reform the nation’s patent system already has its share of critics. While much of the discontent stems from a provision instructing courts on awarding damages in patent lawsuits, another point of contention is language intended to curb "venue-shopping" for favorable courts.  Sen. John Cornyn, R-TX, declined to co-sponsor the measure with Judiciary Chairman Patrick Leahy, D-VT, as he did last session.  Cornyn would be ‘much more enthusiastic’ if the venue provision were removed entirely, an aide told Congress Daily.  High-tech firms generally support the Leahy bill, whereas biotech, drug companies, and smaller businesses remain opposed.

    Leahy introduced the legislation with Sen. Orrin Hatch, R-UT, and Sens. Charles Schumer, D-NY, Sheldon Whitehouse, D-RI, Mike Crapo, R-ID, Kirsten Gillibrand, D-NY, and James Risch, R-ID, as co-sponsors. Leahy vowed to work with all members and interested parties, chief among them Judiciary ranking member Arlen Specter, R-PA,who has long disagreed with Leahy on the damages language and blocked the bill last year.

    Meanwhile, an alternative patent bill from Judiciary member Jon Kyl, R-AZ, is likely to resurface, according to Congress Daily. Kyl has a different take on damages and the ‘inequitable conduct’ doctrine that would require patent applicants to be more forthcoming to the Patent and Trademark Office.  Leahy's new bill does not include inequitable conduct language, but Hatch said Tuesday he wants to work to include it in some form.

    In the House, Judiciary Chairman John Conyers, ranking member Lamar Smith and House Foreign Affairs Chairman Howard Berman introduced a companion bill to Leahy’s and have met resistance over damages from Reps. Donald Manzullo, R-IL, Michael Michaud, D-ME, Dana Rohrabacher, R-CA, and Marcy Kaptur, D-OH. Manzullo also is worried about a provision that would award a patent to the first person to file, rather than current law, which grants patents to the individual who invents the product. The provision could disadvantage universities and small inventors, he said.

    The Entertainment Software Association (“ESA”) Views Broadband As Key To Survival in Tough Economy

    Video game lobbyists are seeking government policies that encourage affordable, accessible and faster high-speed Internet service.  Michael Gallagher, the head of ESA, the video game industry’s main trade group and former assistant secretary of Commerce under President George W. Bush, believes broadband is the “connective tissue” that his member companies need to survive in a turbulent economy.  According to ESA, opportunities to play games online and download games and game-related content from a range of legitimate download services help drive demand for broadband.  “We’re the only form of entertainment online that’s interactive -- movies and music are linear,” Gallagher said.  “We're very pleased with the president’s strong embracing of broadband deployment as a high value goal for our country.”

    ESA backs efforts to free up wireless spectrum as gaming moves from PCs and plasma screens to handheld devices.  To help spread ESA’s message, Gallagher recently hired Jennifer Manner, a Democrat and former executive at Skyterra Communications, to lead his lobbying team.

    The ESA chief also stressed the importance of an annual report by the Office of the U.S. Trade Representative that highlights countries that are the worst intellectual property offenders, noting that Western Europe is of particular concern.  ESA’s study estimated about 6.4 million illegal downloads of 13 game titles were made available through two popular services in December alone.  Countries with the most unauthorized downloads were Italy, Spain, France, Germany and Poland.  Senate Finance Chairman Max Baucus, D-MT, and Sen. Orrin Hatch, R-UT, introduced legislation in the last session that would have required trade officials to create a plan for the worst offenders with harsh consequences for countries that do not comply.

    Gallagher's sector had a record-breaking 2008, with top-line revenue growing to $22 billion.  An average of eight video games was sold every second last year and holiday season sales were strong when many other sectors were lukewarm or poor.  The industry has reached the 30 percent penetration point, Gallagher said. “That’s where big things happen,” he said. “This is a strong point in the curve.”

    Medical Records Vulnerable to File Sharing Networks

    Just as the Health and Human Services Department and other federal agencies contemplate the development of electronic health records, a university technology professor demonstrated that he was able to tap tens of thousands of medical files containing names, addresses and Social Security numbers for patients seeking treatment for conditions ranging from AIDS to mental health problems.  M. Eric Johnson, director of the Center for Digital Strategies at Dartmouth College in Hanover, N.H., used file-sharing applications to access electronic medical records on computers that had the peer-to-peer programs stored on their hard drives.  The Homeland Security Department funded Johnson’s research to demonstrate the need for better security in health IT systems.

    One of the largest stashes of medical data Johnson discovered was a database containing two spreadsheets from a hospital he declined to identify. The files contained records on 20,000 patients, including Social Security numbers, insurance carriers and codes for diagnoses. The codes identified by name four patients infected with AIDS, 201 with mental illness, and 326 patients with cancer.  Data also included links to four major hospitals and 355 insurance carriers that provided health coverage to 4,029 employers and 266 doctors.

    Johnson’s conclusions were released around the same time Congress passed the economic stimulus package, channeling $19 billion to agencies for a nationwide health information network with electronic health records by 2014.  The stimulus bill contains more than 30 pages of requirements to tighten the security of the health information.  But Deborah Peel, founder of health advocacy group Patient Privacy Rights, based in Austin, Texas, said Johnson’s study shows that ‘the idea that data contained in a health IT system can be secure and safe is a fantasy.” 

    “Over the next several years we are going to see major breaches in health IT systems,” said Tom Hughes, who was the Bush administration's chief information officer at the Social Security Administration, which is running a pilot health IT program.  The federal government has suffered numerous breaches because of peer-to-peer programs.  In June 2008, at least 1,000 patients from Walter Reed Army Medical Center had their health records and Social Security numbers compromised.  And Congress has held hearings on the problem, including one in July 2007, when the House Oversight Committee learned that military documents, including classified documents, were available for download on peer-to-peer networks.

    FCC Takes Steps to Implement the Child Safe Viewing Act; Senators Pryor, Hutchison Commend FCC Action to Protect Children from Indecency on TV

    The FCC released a Notice of Inquiry (NOI) implementing the Child Safe Viewing Act of 2007, adopted by the FCC on December 2, 2008.  Pursuant to the Act, the Commission must examine the existence and availability of advanced blocking technologies that are compatible with various communications devices or platforms, including among others television, satellite, wireless devices, and the Internet.  The FCC will examine blocking technologies that may be appropriate across a wide variety of distribution platforms and devices that can filter language based upon information in closed captioning, can operate independently of pre-assigned ratings, and may be effective in enhancing a parent’s ability to protect his or her child from indecent or objectionable programming, as determined by the parent.  The FCC is required to issue a report to Congress by August 29, 2009 detailing its findings.  Comments on the FCC’s NOI are due April 16, 2009. 

    Senators Mark Pryor, D-AK, and Kay Bailey Hutchison, R-TX, and several children’s advocacy groups, applauded the FCC’s action.   “This law empowers parents with more tools to choose appropriate programming for their families,” Senator Mark Pryor said. “I’m pleased the FCC is taking a fresh look at how market-inspired technology can effectively control the sounds and images our young children are continuously exposed to through the media.” 

    Non-Commercial Television Stations Struggle with DTV Transition Delay

    Non-commercial televisions stations are urging the FCC to reconsider the DTV transition delay.  Stations are struggling with technical and financial issues and digital only operations would relieve many of their problems.  Currently the FCC is not accepting turn-off notifications that stations are required to file 30-days before terminating analog operations.  The Association for Public Television Stations (APTS) is encouraging the FCC to accept turn-off notices from stations that had plans to terminate analog operations at the end of March or in early April.  The FCC’s final rules on termination of analog operations are not expected until later this month.  APTS argues that the FCC’s failure to accept turn-off notices is contrary to Congress’ intent to allow stations to terminate analog operations at any time before June 12th.

    Clearwire Details Mobile WiMAX Plans

    In a news release announcing its 4th quarter and full year 2008 financial results, Clearwire announced its launch plans for 2009 and 2010.  By 2010, Clearwire plans to launch mobile WiMAX facilities providing coverage to 120 million people in 80 markets.  For 2009, Clearwire announced mobile WiMAX launch plans for at least the following markets: Atlanta, Baltimore, Las Vegas, Chicago, Charlotte, Dallas/Ft. Worth, Honolulu, Philadelphia, and Seattle.  Cities announced for launch in 2010 are New York, Boston, Washington, D.C., Houston and the San Francisco Bay Area.  Along with new markets, Clearwire announced new products that will soon be available.  It plans to launch a dual-mode 3G/4G wireless modem this summer that will provide its customers with a nationwide 3G footprint using Sprint’s 3G network.  The modem will be sold both by Clearwire and Sprint and will automatically switch between Clearwire’s WiMAX service and Sprint’s 3G network.  Clearwire also plans to release a personal hot spot device at the end of March that will give its customers access to mobile WiMAX and Wi-Fi and allow Wi-Fi products to operate on Clearwire’s 4G network.

    Streaming Rate Agreement Published by Copyright Office

    The U.S. Copyright Office published the details of NAB’s streaming agreement with SoundExchange that was first announced last month.  Currently-streaming radio stations that want to accept the negotiated rates, must notify SoundExchange by April 2, 30 days after the rates were published in the Federal Register.  A summary of the negotiated rates and terms for years 2009-2015 is available on the NAB website.  Stations not currently streaming may adopt the negotiated rates by completing the election form on the SoundExchange website.  Radio stations that do not opt into the negotiated rates may continue to rely on the existing Copyright Royalty Board rates through 2010, which will be reset for the 2011-2015 time period.

    100 WiMAX Operators are Estimated to Launch Service this Year

    The WiMAX Forum estimates that at least 100 more operators will launch WiMAX service this year. With the difficult economy, deployment plans are being scaled back but new companies are anxious to enter the market.  WiMAX has been deployed globally in 135 countries and the technology covers more than 430 million people. The WiMAX Forum estimates the coverage number will double by 2010.  WiMAX deployments have been slow in the United States but investors think that the recently passed broadband stimulus will provide companies with the funds needed to increase WiMAX deployments.

    DTV Convertor Box Coupon Program is Back on Track

    NTIA estimates that the DTV convertor box coupon waiting list will be eliminated in the next two weeks.  It received a $650 million cash infusion from the recently passed stimulus package to help fund the additional DTV coupons.  NTIA is also considering changing the DTV convertor box coupon rules to allow people with expired coupons to apply for a new ones. 


    Meetings and Events


    March 9, 2009

    • OMB Guidance Deadline for Summary Stimulus Funding Opportunity Announcements

    March 10, 2009

    • WRC-11 Informal Working Group 2: Terrestrial Services; Informal Working Group 3: Space Services

    • Joint Public Meeting of FCC, NTIA, and RUS on American Recovery and Reinvestment Act of 2009 Broadband Stimulus Initiatives

    March 11, 2009

    • WRC-11 Informal Working Group 4: Regulatory Issues

    March 16-18, 2009

    • BICSI South Pacific 2009 Conference & Exhibition, Sydney, Australia

    March 16-24, 2009

    • NTIA Roundtable Meetings on American Recovery and Reinvestment Act of 2009 Broadband Stimulus Initiatives

    March 17, 2009

    • WRC-11 Informal Working Group 1: Maritime, Aeronautical and Radar Services

    March 19, 2009

    • Evaluating Software Patents, Silicon Flatirons, Boulder, CO

    March 19, 2009

    • OMB Guidance Deadline for Full Stimulus Funding Opportunity Announcements

    March 22-24, 2009

    • NAB Futures Summit, Pebble Beach, CA

    March 24, 2009

    • Distance Learning and Telemedicine Grant Program Application Deadline

    March 31, 2009

    • WRC-11 Advisory Committee Meeting

    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 (Jennifer Richter speaking about broadband stimulus)

    May 3, 2009

    • Federal agencies to make performance plans publicly available

    • Federal agencies to begin reporting on their allocations for entitlement programs

    May 3-5, 2009

    • BICSI MEA Dubai Conference, Dubai, United Arab Emirates

    May 6-7, 2009

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

    May 10-13, 2009

    • 2009 BICSI Spring Conference & Exhibition, Baltimore, Maryland

    May 11-15, 2009

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

    May 15, 2009

    • Detailed agency financial reports to become available

    May 20, 2009

    • Federal agencies to begin reporting competitive grants and contracts

    June 22-24, 2009

    • 2009 BICSI European Conference & Exhibition, Dublin, Ireland

    July 15, 2009

    • Recipients of federal funding to begin reporting on use of their funds

    July 19-22, 2009

    • NARUC Summer Committee Meetings, Seattle, WA

    August 5-8, 2009

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

    September 4, 2009

    • 2009 BICSI Japan Conference, Tokyo, Japan

    September 15-17, 2009

    • WiMAX World 2009, Chicago, IL

    September 20-24, 2009

    • 2009 BICSI Fall Conference & Exhibition, Las Vegas, Nevada

    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

    March 9, 2009

    • Comment Deadlines: CTIA Petition to Transition Cellular Services to Geographic Market Area Licensing

    • Comment Deadline: Petitions on Treatment of Public, Educational, and Government (PEG) Channels by Cable TV Operators

    • Comment Deadline: FCC Delays BAS Relocation Deadline, Seeks Comments on Petition for Further Delay

    March 12, 2009

    • Comment Deadline: Declaratory Ruling - Access Charges Apply to Calls Bound for ISPs Delivered via Virtual NXX Arrangements

    March 13, 2009

    • Comment Deadline: FCC to Examine Wireless Numbering Information in AT&T's Acquisition of Centennial

    March 14, 2009

    • Reply Comment Deadline: Thirteenth Annual Report on Competition in Video Programming Markets; Comments Sought on Data Collection Form for 70/70 Rule

    March 19, 2009

    • Reply Comment Deadline: FCC Delays BAS Relocation Deadline, Seeks Comments on Petition for Further Delay

    March 23, 2009

    • Reply Comment Deadline: Declaratory Ruling - Access Charges Apply to Calls Bound for ISPs Delivered via Virtual NXX Arrangements

    March 24, 2009

    • Reply Comment Deadline: Petitions on Treatment of Public, Educational, and Government (PEG) Channels by Cable TV Operators

    March 30, 2009

    • Comments Deadline: Sirius-XM Merger Condition, Compliance Deadline Extended

    March 31, 2009

    • Deadline: Interconnected VoIP Providers to Transmit 'Nomadic' 711 Calls to Relay Providers

    • Deadline: TRS Provider Delivery of 711 Calls to PSAPs

    April 14, 2009

    • Reply Comment Deadline: Sirius-XM Merger Condition, Compliance Deadline Extended

    April 16, 2009

    • Comment Deadline: Steps to Implement the Child Safe Viewing Act of 2007 (S.602)

    April 28, 2009

    • Comment Deadline: Years of Coverage Expanded: Fourteenth Inquiry on Competition for the Delivery of Video Programming

    May 15, 2009

    • FCC Action Deadline: Verizon New England's Request for Forbearance from Unbundling and Dominant Carrier Regulation in Rhode Island

    May 18, 2009

    • Reply Comment Deadline: Steps to Implement the Child Safe Viewing Act of 2007 (S.602)

    May 28, 2009

    • Reply Comment Deadline: Years of Coverage Expanded: Fourteenth Inquiry on Competition for the Delivery of Video Programming

    June 29, 2009

    • Deadline: Action on Verizon's Request for Forbearance from Unbundling and Dominant Carrier Regulation in Virginia Beach

    Public Safety

    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

    June 9, 2009

    • Regional Public Safety Planning Committee Meeting for Region 19 in Cranston, Rhode Island regarding 700 MHz