Monday, July 30, 2012

Senate and House Commerce Committees Expected to Approve Legislation to Extend the U.S. SAFE WEB Act

This week, the Senate Committee on Commerce, Science, and Transportation and the House Committee on Energy and Commerce are epected to mark-up and approve legislation to reauthorize the U.S. SAFE WEB Act beyond its current December 22, 2013 sunset date. Both the Senate bill (S. 3410), introduced by Senator Pryor (D-AK), and the House bill (H.R. 6131), introduced by Rep. Bono Mack (R-CA), will extend the Act until September 30, 2020 and specify "that the provisions of the Act will cease to be effective after the date of expiration absent further authorization."

The House Energy and Commerce Committee staff's
background memorandum for the mark-up summaries the U.S. SAFE WEB Act as follows.

U.S. SAFE WEB amends the FTC Act to authorize the Commission to:

(1) Share information involving cross border fraud with foreign consumer protection agencies;

(2) Secure confidential information from those foreign consumer protection agencies by protecting confidential information from public disclosure (that otherwise would not be shared by many foreign law enforcers);

(3) Take fraud-based legal action by amending the “unfair or deceptive acts or practices” to include acts involving foreign commerce or material misconduct within the U.S.;

(4) Seek redress on behalf of foreign consumers victimized by U.S.-based wrong-doers; and,

(5) Make criminal referrals for cross-border criminal activity when violations of FTC law also violate U.S. criminal law (some foreign agencies address consumer fraud as a criminal, rather than civil, law enforcement issue).

If you have any questions regarding this legislation or any other activity in Congress that could impact the telecommunications, media and technology sectors, please contact Vance Schuemann or any member of the TLP team.

Tuesday, July 24, 2012

House to Hold Hearing on Technology and Innovation related to Cloud Computing


On Wednesday, July 25, 2012 at 12:30 p.m. EST, the House Judiciary Committee's Subcommittee on Intellectual Property, Competition, and the Internet -- chaired by Rep. Goodlatte (R-VA) -- will be holding a hearing entitled " Cloud Computing: An Overview of the Technology and the Issues facing American Innovators." Testifying before the Subcommittee will be Robert Holleyman of the Business Software Alliance (BSA), Justin Freeman of Rackspace, Dan Chenok of International Business Machines Corporation (IBM) and Daniel Castro of the Information Technology and Innovation Foundation (ITIF).

The live video streaming for the hearing will be available here.

If you have any questions regarding this hearing or any other activity in Congress that could impact the telecommunications, media and technology sectors, please contact Vance Schuemann or any member of the TLP team.

Monday, July 23, 2012

PCAST Government Spectrum Report Focuses on Sharing Partnerships Rather Than Clearing and Auctions; Scheme Offers No Near Term Relief for Those Suffering Competitively Under the Continuing Spectrum Crunch

The President's Council of Advisors on Science and Technology (PCAST) -- a group which is largely comprised of executives from Google, Microsoft and private equity interests as well as academics -- released its anticipated report on July 20, 2012, entitled Realizing the Full Potential of Government-Held Spectrum to Spur Economic Growth.

As expected, the report "concludes that the traditional practice of clearing and reallocating portions of the spectrum used by Federal agencies is not a sustainable model for spectrum policy." And, "PCAST finds instead that the best way to increase capacity is to leverage new technologies that enable larger blocks of spectrum to be shared." "Among its major recommendations are that the Federal Government should share underutilized Federal spectrum to the maximum extent possible and identify 1,000 MHz of Federal spectrum as part of an effort to create 'the first shared-use spectrum superhighways' authorize and implement, in collaboration with industry partners, a Federal Spectrum Access System (SAS) to serve as an information and control clearinghouse for the band-by-band registrations and conditions of use that will apply to all users with access to each shared Federal band under its jurisdiction; establish methodologies for spectrum management that consider both transmitter and receiver characteristics to enable flexible sharing of spectrum; and take steps to implement a mechanism that will give Federal agencies incentives to share spectrum." Further, Obama Administration staff indicated that it "has tasked the Commerce Department’s [NTIA CSMAC] to develop real sharing solutions in one particularly promising spectrum band (the 1755 – 1850 MHz band...)."

The PCAST report received various levels of praise and concern from government officials as well as a wireless carrier group and unlicensed interests. Most agree that it is a "good start" on the issue.

The following are some observations about the PCAST report:

  • Most of the nation's wireless providers -- especially those currently suffering competitive harm due to the continuing "spectrum crunch" -- still prefer the clearing, reallocating and auctioning of underused or unused bands of Federal government spectrum as the primary near-term solution. Of course, nearly everyone agrees that spectrum sharing will need to be utilized in the future. The problem is that developing the necessary technology will take years, if not a decade or more. 

  • The release of the PCAST report follows a letter from the House Communications and Technology Subcommittee's bipartisan Federal Spectrum Working Group to the NTIA requesting detailed information on Federal government spectrum assignments in the frequency ranges from 300 MHz to 3GHz. 

  • And, the bipartisan letter from Congress to the NTIA came after the long-delayed release in late March 2012 of a disappointing report by the NTIA regarding the repurposing of Federal government spectrum in the 1755-1850 MHz band for commercial mobile broadband use. The report claimed it would take 10 years and $18 billion to clear that 95 MHz of spectrum -- figures which have not been audited or verified. Interestingly, while the data in the NTIA's March 2012 report clearly indicates that there are about one-third (1600) fewer Federal government frequency assignments in the 1755-1850 MHz band than there were about a decade ago (when the NTIA released a similar report on the same band in November 2000), the NTIA largely ignored providing a formal recommendation about clearing the entire 95 MHz, including the important 1755-1780 MHz sub-band.

  • The NTIA, FCC and the Administration all began pushing the concept of sharing the 1755-1850 MHz band by government and commercial interests by May 2012. Indeed, the NTIA’s hand-picked CSMAC has already attempted to start discussions between the wireless industry and the Federal agencies over sharing.

  • Since no new spectrum has been auctioned in over four years and the incentive auctions of the TV bands do not look promising as a near-term solution, some are suggesting that the Administration really needs to step-up its efforts on repurposing government spectrum. The 1755-1780 MHz sub-band is especially critical since it can help solve the current "spectrum crunch" facing many mobile providers because the sub-band can be paired with FCC's AWS-3 block (2155-2180 MHz) to create a 50 MHz block of spectrum that can be to auctioned in the near-term for mobile broadband use. Indeed, the House of Representatives actually passed legislation in December 2011 that contained language drafted by Subcommittee Chairman Walden that would have required the 1755-1780 MHz sub-band to be auctioned for mobile broadband use within three years, but the 1755-1780 MHz language was stripped out of the House-Senate conference report containing major spectrum legislation, which became law on February 22, 2012.

  • It is important to remember that all of the activities surrounding Federal spectrum use are occurring within an election year and with a defense sequestration and other spending cuts looming. In that regard, Federal agencies could become more willing to tell Congress that they will surrender some of their underutilized or unused spectrum assignments -- which could then be reallocated and generate billions of dollars in revenue if auctioned for commercial broadband use -- as a means to offset the automatic spending cuts they will face in early 2013.

If you have any questions regarding issues related to government spectrum reallocation or any other activity in Congress that could impact the telecommunications, media and technology sectors, please contact Vance Schuemann or any other member of the TLP Team.

Tuesday, July 17, 2012

NTIA Seeks Comment on Government Spectrum Reallocation Technical Panel and Dispute Resolution Board as Required by Congress


In today’s Federal Register, the National Telecommunications and Information Administration (NTIA) published a notice that seeks public comment on a proposal "to adopt regulations governing the Technical Panel and dispute resolution boards established by Congress to facilitate the relocation of, and spectrum sharing with, U.S. Government stations in spectrum bands reallocated from Federal use to non-Federal use or to shared use." Further, the NTIA states that the action "would implement certain additions and modifications to the NTIA Organization Act through the recent enactment of the Middle Class Tax Relief and Job Creation Act of 2012" and "is necessary to ensure the timely relocation of Federal entities’ spectrum related operations and, where applicable, the timely implementation of arrangements for the sharing of radio frequencies."

Comments on the NTIA notice are due on or before August 1, 2012.

In addition to the government spectrum that must be auctioned under the Middle Class Tax Relief and Job Creation Act of 2012, a bipartisan group in the House is continuing to push the NTIA and Federal agencies to clear and auction additional government spectrum, especially in the 1755-1850 MHz band. Moreover, in light of the looming defense sequestration, the Department of Defense could become more willing to tell Congress that it will surrender some of its underutilized or unused spectrum assignments, which could then be reallocated and generate billions of dollars in revenue if auctioned for commercial broadband use, as a means to offset the automatic spending cuts it will face in early 2013. While the legislative process to halt the defense sequestration is already underway in the House, negotiations between the President, House and Senate will likely not occur until later this year.

If you have any questions regarding issues related to government spectrum reallocation or any other activity in Congress that could impact the telecommunications, media and technology sectors, please contact Vance Schuemann or any other member of the TLP team.


Monday, July 16, 2012

Senate to Hold Hearing to Examine the Cable Act on July 24

The Senate Committee on Commerce, Science, and Transportation - which is chaired by Senator Rockefeller (D-WV) - will to hold a hearing on July 24, 2012 at 2:30 pm EST to examine the Cable Act.  According to the Committee, the hearing "will consider the impact of the Cable Television and Consumer Protection Act of 1992 on the television marketplace and consumers twenty years after its passage." And, the following witnesses will appear before the Committee: Martin Franks of CBS, Gordon Smith of NAB, Melinda Witmer of Time Warner Cable, Colleen Abdullah of WOW, Preston Padden of the University of Colorado Law School, and Mark Cooper of the Consumer Federation of America.

Live video streaming of the hearing should be available here.

This hearing will follow recent hearings in both the House and Senate on issues related to the regulation of the video marketplace. Further, Senator DeMint (R-SC) and Rep. Scalise (R-LA) have introduced legislation in the Senate and House (S. 2008 and H.R. 3675, the "Next Generation Television Marketplace Act") which would reform the regulation of video services. While this legislation is not expected to move this year, issues and legislation surrounding the regulation of video services will likely be hotly debated in Congress over the next couple years.

If you have any questions regarding this hearing or any other activity in Congress that could impact the telecommunications, media and technology sectors, please contact Vance Schuemann or any member of the TLP team.

House Hearing on "Where the Jobs Are: Moving the Economy with Mobile Apps"

*HEARING POSTPONED UNTIL A FUTURE DATE*

The House Energy and Commerce Committee's Subcommittee on Commerce, Manufacturing, and Trade, which is chaired by Rep. Mark Bono Mack (R-CA), has announced that it will hold a hearing on Friday, July 20, 2012, at 9:00 AM EST entitled "Where the Jobs Are: Moving the Economy with Mobile Apps." Appearing as witnesses before the Subcommittee will be Stephanie Hay of Fast Customer, John Horrigan of TechNet, Morgan Reed of the Association for Competitive Technology and Scott Stanfield of Vertigo Software, Inc.

According to the Committee, the "mobile apps marketplace is one of the few sectors of the economy where jobs are being created." And, the "hearing will focus on the thriving market for these apps and the developers who are driving this innovative and growing sector of our economy."

The Committee staff's briefing memorandum for the hearing is available here.

The live video streaming of the hearing will be available here.

If you have any questions regarding this hearing or any other activity in Congress that could impact the telecommunications, media and technology sectors, please contact Vance Schuemann or any member of the TLP team.

Thursday, July 12, 2012

Congress to Hold Hearing on the "Digital Divide: Expanding Broadband Access to Small Businesses"

The House Small Business Committee has announced that it will hold a hearing entitled "Digital Divide: Expanding Broadband Access to Small Businesses" at 1:00 pm EST on July 18, 2012.  According to the Committee, the hearing will "examine the role of the federal government in expanding broadband access to small businesses in the United States."  Appearing as witnesses at the hearing will be Chairman Julius Genachowski of the Federal Communications Commission (FCC), Administrator Jonathan Adelstein of the Rural Utility Service (RUS) and Assistant Secretary Lawrence Strickling of the National Telecommunications and Information Administration (NTIA).

The live video webcast of the hearing will be available here.

And, a copy of the Committee staff's briefing memorandum for the hearing is avaliable here.

If you have any questions regarding this hearing or any other activity in Congress that could impact the telecommunications, media and technology sectors, please contact Vance Schuemann or any member of the TLP team.

House to Examine the International Trade Commission and Patent Disputes

Following a Senate Judiciary Committee hearing on the issue, the House Judiciary Committee's Subcommittee on Intellectual Property, Competition and the Internet will be holding a hearing entitled "The International Trade Commission and Patent Disputes" at 10:00 AM EST on July 18, 2012. The witnesses for the hearing will be Colleen Chien of the Santa Clara University School of Law; David B. Kelley of Ford Global Technologies, LLC; Neil A. Rubin of Cisco Systems, Inc.; Bernard J. Cassidy of Tessera Technologies, Inc.; and Albert Foer of the President American Antitrust Institute.

At the Senate Judiciary Committee hearing, the FTC and Department of Justice "cautioned against the misuse of standards-essential patents to block new gadgets from entering the United States." And, the activity is taking place against the backdrop of the FTC's investigation into whether "Google Inc.'s Motorola Mobility unit is honoring pledges it made to license industry-standard technology for mobile and other devices on fair terms" as well as "Google’s decision to continue litigation started by Motorola Mobility over industry-standard patents...that could end up blocking imports of popular consumer products such as Microsoft’s Xbox and Apple’s iPhone and iPad."

The live video streaming of the hearing will be available here.

If you have any questions regarding this hearing or any other activity in Congress that could impact the telecommunications, media and technology sectors, please contact Vance Schuemann or any member of the TLP team.

Tuesday, July 10, 2012

Bipartisan Group in Congress Wants Detailed Accounting of Federal Government Spectrum Use from NTIA

As part of the bipartisan Federal Spectrum Working Group’s efforts to examine government spectrum use and clear it for mobile broadband use, House Communications and Technology Subcommittee Chairman Walden (R-OR), Ranking Member Eshoo (D-CA) and the rest of the Working Group have written a letter to the National Telecommunications and Information Administration (NTIA) in the Department of Commerce requesting detailed information on Federal government spectrum assignments in the frequency ranges from 300 MHz to 3GHz. The NTIA is authorized by Congress to manage the Federal government's spectrum use, and the House Energy and Commerce Committee’s Communications and Technology Subcommittee has jurisdictional authority over the NTIA and the Federal Communications Commission.


The letter notes that "[t]he U.S. government is the single largest spectrum user in the country" and "[f]inding more efficient ways for the government to use this valuable public asset without compromising critical objectives would not only produce dividends for government agencies, but also inject additional resources into the private sector to spur our economy." As such, the Subcommittee asks the NTIA to provide the following detailed information:
    • "The number of spectrum authorizations each federal user held in 2011, including the activities, capabilities, functions, or missions supported by the authorizations and whether they are space-based, air-based, or ground-based, broken down in frequency ranges from 300 MHz to 3GHz, 1755 MHz to 1850 MHz, and 1755 MHz to 1780 MHz."
    • "The amount of spectrum assigned to each Federal user, broken down in frequency ranges from 300 MHz to 3GHz, 1755 MHz to 1850 MHz, and 1755 MHz to 1780 MHz. In your answer, please explain in detail any adjustments you make to account for the temporal and shared nature of some government spectrum use."

This letter follows the long-delayed release in late March 2012 of a disappointing report by the NTIA regarding the repurposing of Federal government spectrum in the 1755-1850 MHz band for commercial mobile broadband use. The report claimed it would take 10 years and $18 billion to clear the 95 MHz of spectrum -- figures which have not been audited or verified. In addition, while the data in the NTIA's March 2012 report clearly indicates that there are about one-third (1600) fewer Federal government frequency assignments in the 1755-1850 MHz band than there were about a decade ago (when the NTIA released a similar report on the same band in November 2000), the NTIA argued that there are several challenges that need to be met before making a formal recommendation about repurposing the entire 95 MHz, including the important 1755-1780 MHz sub-band. Moreover, the report proposed "convening discussions between industry and the relevant federal agencies" in order to address the "challenges."


As such, the NTIA, FCC and the Administration are now pushing the concept of sharing the 1755-1850 MHz band by government and commercial interests. Indeed, the NTIA’s CSMAC has already attempted to start discussions between the wireless industry and the Federal agencies over sharing. However, most of the wireless industry views sharing of the 1755-1850 MHz band as a last resort and would like the band, especially the 1755-1780 MHz sub-band, to be cleared and auctioned as quickly as possible. 


Since no new spectrum has been auctioned in over four years and the incentive auctions of the TV bands do not look promising as a near term solution, some are suggesting that the Administration really needs to step-up its efforts on repurposing government spectrum. The 1755-1780 MHz sub-band is especially critical since it can help solve the current "spectrum crunch" facing many mobile providers because the sub-band can be paired with FCC's AWS-3 block (2155-2180 MHz) to create a 50 MHz block of spectrum that can be to auctioned in the near-term for mobile broadband use. Indeed, the House of Representatives actually passed legislation in December 2011 that contained language drafted by Subcommittee Chairman Walden that would have required the 1755-1780 MHz sub-band to be auctioned for mobile broadband use within three years, but the 1755-1780 MHz language was stripped out of the House-Senate conference report containing major spectrum legislation, which became law on February 22, 2012.


If you have any questions regarding issues related to government spectrum reallocation or any other activity in Congress that could impact the telecommunications, media and technology sectors, please contact Vance Schuemann or any other member of the TLP team.

Monday, July 9, 2012

House Hearing on Oversight of the FCC Tomorrow Morning

As noted last month, the House Energy and Commerce Committee's Subcommittee on Communications and Technology will be holding a hearing tomorrow morning at 10:15 AM EST on oversight of the Federal Communications Commission (FCC). FCC Chairman Genachowski as well as Commissioners McDowell, Clyburn, Rosenworcel and Pai will all testify before the Subcommittee, which has jurisdictional authority over the FCC in the House. According to the Committee, the "hearing will examine current proceedings before the FCC, the commission’s regulatory process, and the agency's progress in implementing congressional priorities."

The live video streaming of the hearing will be available here.

The Majority Committee staff's briefing memorandum for hearing is available here. And, the memorandum indicates that the following issues may be covered during the hearing:

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Commercial Spectrum Auctions. The FCC’s 2010 National Broadband Plan recommended making 300 MHz of additional spectrum available by 2015 and 500 MHz available by 2020 to meet the exploding demand for wireless Internet service. Indeed, according to a May 2012 Cisco report, wireless will account for 61 percent of global Internet traffic by 2016, up from 45 percent in 2011. To begin channeling additional spectrum toward that growing need, this subcommittee succeeded in including spectrum provisions in the Middle Class Tax Relief and Job Creation Act of 2012. Among other things, those provisions require the FCC to auction 65 MHz of particular spectrum by February 2015 and authorize the FCC to conduct incentive auctions through September 2022. In an incentive auction, the government shares proceeds with licensees that voluntarily return spectrum for auction. The spectrum provisions authorize both ongoing incentive auctions in which any licensee may relinquish spectrum, as well as a special, one-time incentive auction in which only television broadcasters may relinquish spectrum. To facilitate clearing of contiguous spectrum in the broadcast incentive auction, the legislation creates a $1.75 billion fund to relocate broadcasters that do not choose to relinquish spectrum. According to some reports, the FCC may begin issuing decisions as early as this fall to start implementing a broadcast incentive auction.

The spectrum provisions of the Middle Class Tax Relief and Job Creation Act also included provisions requested by Federal users of spectrum to improve the Commercial Spectrum Enhancement Act (CSEA). The CSEA authorizes the National Telecommunications and Information Administration (NTIA) to coordinate the relocation of Federal users of spectrum so that the FCC may auction the cleared spectrum for commercial purposes. Some of the auction proceeds pay for the costs of relocating the government users. The CSEA was used successfully in 2006 to free spectrum for what is called Advanced Wireless Service. The NTIA issued a report in March 2012, however, estimating that clearing Federal users from spectrum between 1755 to 1850 MHz—frequencies often identified as desirable by commercial providers—could cost $18 billion and take 10 years. The NTIA therefore recommended sharing of Federal spectrum rather than outright clearing, although it acknowledged that it based those estimates on agency reporting without conducting an independent analysis. It also has acknowledged that agency cost and time estimates surrounding the 2006 clearing were initially overblown. Chairman Genachowski has nonetheless echoed the NTIA’s sentiment, saying in a May 2012 speech that sharing government spectrum, as opposed to clearing it, may be the most promising way forward. To drill down deeper into these issues, T-Mobile has asked the FCC on behalf of the wireless industry for permission to test the feasibility of spectrum sharing in the 1755-1780 MHz band.

Interoperable Public Safety Broadband Network. The Middle Class Tax Relief and Job Creation Act of 2012 also provided for creation of a nationwide interoperable public safety broadband network overseen by a quasi-governmental entity called FirstNet, housed within the NTIA. The legislation required the FCC to establish a technical advisory board to recommend minimum technical interoperability requirements for the network. The FCC approved the board’s recommendations on June 21. FirstNet may implement those recommendations, but is not required to do so. The NTIA must appoint the FirstNet board by August 20. There are no deadlines for the rollout by FirstNet of the public safety network.

Prior to passage of the Middle Class Tax Relief and Job Creation Act, some of the spectrum to be used by FirstNet was licensed by the FCC to an entity called the Public Safety Spectrum Trust (PSST) for an earlier attempt at a nationwide, interoperable public safety broadband network. The slow pace of progress prompted some State and local public safety entities to seek FCC waivers to begin building local broadband networks using the PSST spectrum. These local networks would eventually be integrated into the nationwide network. To date, the FCC has granted more than 20 waivers. Other waiver requests are still pending. To facilitate construction, some of the waiver recipients also sought broadband grants from the NTIA through the American Recovery and Reinvestment Act’s Broadband Technology Opportunities Program (BTOP). The waiver and grant recipients were in various stages of implementation when Congress passed the Middle Class Tax Relief and Job Creation Act, which requires the FCC to transfer the PSST spectrum to FirstNet. The legislation does not set a deadline for the spectrum transfer and it may be years before FirstNet is up and running, let alone has built out the network in every part of every State. NTIA Administrator Larry Strickling has temporarily suspended the BTOP grants, citing passage of the Middle Class Tax Relief and Job Creation Act and arguing that the projects might turn out to be incompatible with whatever FirstNet deploys in the future. He has also argued that the FCC should revoke the waivers it has issued and refrain from granting additional ones. The FCC has opened a proceeding to determine what steps to take regarding the waivers. The pleading cycle has closed but the FCC has not yet rendered a decision. Grant recipients question the NTIA’s authority to suspend BTOP funding for recipients who remain in compliance with their original grant terms. They argue they should be allowed to proceed so long as their networks will be interoperable. Waiver recipients and applicants similarly argue they should be allowed to proceed, at least until FirstNet has built out to their jurisdictions.

Universal Service. The FCC issued an order in November 2011 reforming the distribution of universal service subsidies to carriers in high-cost and rural areas of the country and expanding the program to broadband. The Commission continues to implement the order. The FCC argues that the order will promote broadband deployment while either reducing the size of the high-cost fund—which currently costs consumers approximately $4.5 billion per year—or at least slowing its growth. Cable, wireless, and satellite companies argue that the reforms did not go far enough, either because the order continues to subsidize deployment where unsubsidized companies already provide service or because the order neglects to sufficiently subsidize them. Rural carriers argue that the order went too far, reducing their subsidies below sustainable levels. Separately, the FCC released a notice of proposed rulemaking in April 2012 seeking comment on how to reform assessment of contributions to the Universal Service Fund. The pleading cycle closes August 7.

Special Access. "Special access" is a wired telecommunications service that provides a dedicated, high-capacity connection to business customers. Other wired and wireless phone companies sometimes buy special access as a component to provide their own competing phone and broadband Internet services. Special access services were under price-cap regulation until 1999, when a Democrat-led FCC found the market was competitive in certain places and created a deregulatory mechanism allowing pricing flexibility. Where competitive triggers are met, incumbent providers are relieved of some of their rate regulation, but they are not allowed to discriminate and must offer the same terms to similarly situated customers. Opponents of the pricing flexibility regime argue that the incumbents face little or no competition in the special access market, that prices are too high, and that the pricing flexibility triggers focus on the wrong measures of competition. The incumbents argue that the pricing flexibility regime is working; that prices have gone down, not up; that re-regulation would be a mistake because the artificially lowered rates would deter cable, wireless, and other providers from investing in their own facilities; and that those advocating re-regulation have the burden of proving the current regime is flawed. The Chairman’s office circulated a draft item last month that would have frozen the granting of further pricing flexibility provisions pending re-examination of the regime. AT&T and Windstream objected on the grounds that they had pricing flexibility petitions pending that met the current criteria and that the FCC should not change the rules of the game midstream. In the face of such concerns, the FCC granted the pending petitions and is reported to be working on a revised item that would require collection of additional data to evaluate the current regime.

Video and Broadcast Ownership Regulation. As discussed at the June 2012 Future of Video hearing, the competitive and technological landscape has changed drastically over the last two decades. This calls into question not only traditional cable regulation, such as rules governing program access and program carriage, but also limitations on broadcast media ownership. Indeed, the Third Circuit held in 2004 that reasoned analysis supports the FCC’s previous determination that the absolute ban on newspaper-broadcast cross-ownership undermines localism and is no longer needed to ensure diversity of viewpoints. In December 2007, then-Chairman Martin sought to relax the ban in favor of a case-by-case review. Cross-ownership would be presumed permissible in the 20 largest markets and presumed impermissible in smaller markets. He proposed to retain the other restrictions, namely the dual network, national and local TV, and local radio ownership restrictions. The U.S. Court of Appeals for the Third Circuit overturned the proposal to relax the newspaper-broadcast cross-ownership restriction in its July 2011 Prometheus Radio Project v. FCC ruling, however, on the grounds that the editorial Chairman Martin used to propose the revision did not constitute sufficient notice under the Administrative Procedure Act. The Third Circuit ruled that the FCC’s decision to retain the other limits was not so arbitrary and capricious as to violate the Administrative Procedure Act. This does not necessarily mean, however, that the restrictions represent good policy.

As part of its statutorily mandated quadrennial review, the FCC proposed in December 2011 to relax the newspaper-broadcast cross ownership rule largely as proposed by Chairman Martin and to eliminate the radio/TV cross-ownership rule. It proposed to retain, however, the dual network, national and local TV, and local radio ownership restrictions.

Cable Spectrum Transfer. SpectrumCo—a coalition of cable companies—is seeking FCC approval to transfer 122 Advanced Wireless Service (AWS) licenses to Verizon for $3.6 billion. SpectrumCo originally acquired the licenses at auction in 2006 for $2.3 billion but has not deployed service. Verizon and the SpectrumCo cable companies have also entered into agreements to become resellers of each other's services. In the course of the FCC's consideration of this transaction, Verizon has announced plans for two additional spectrum transfers that are contingent on FCC approval of the SpectrumCo transaction. Should the transaction be approved, Verizon has committed to selling its 700 MHz lower A- and B-block licenses. Verizon has also entered into a contingent transaction with T-Mobile to exchange AWS licenses that the parties say would permit them to better align their individual AWS holdings. The FCC has announced that it will apply the self-imposed 180-day "Time Clock" it typically uses for consideration of mergers and acquisitions. The FCC is not legally bound to complete its review within that time period, however, either in the merger and acquisition context or as applied to this transaction. The FCC started the clock on January 19, 2012. Without interruption, the 180 days would elapse July 17, 2012. The FCC set the clock back 21 days on May 1 to accommodate additional document submissions on the original filing as well as comment from third parties. The FCC stopped the clock for 14 days on June 26 to permit parties to comment on the proposed Verizon/T-Mobile transaction. The clock is scheduled to restart July 10. Barring additional stoppages, the 180-day clock will run out August 21, 2012.

June 29 Storm Outages. According to press accounts, the "derecho" storm system that hit the Mid-Atlantic States two weeks ago caused both 911 and non-emergency communications service outages across Maryland, Virginia, West Virginia, and the District of Columbia. During the storm and its aftermath, wireline, wireless, cable and broadcast systems all experienced outages. All 911 services were reportedly restored by July 4. The FCC is currently investigating these outages. Broadcasters have pointed to the storm in renewing calls to include FM radio chips in cellphones. Wireless providers argue that inclusion of such chips should be left to the marketplace, that more than 50 wireless devices with such chips are already commercially available, and that the wireless industry is deploying an emergency alert program as a result of the 2006 WARN Act. The FCC has announced that it will hold a meeting with wireless and broadcast providers on July 20 to discuss the FM chip issue.


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If you have any questions regarding this hearing or any other activity in Congress that could impact the telecommunications, media and technology sectors, please contact Vance Schuemann or any member of the TLP team.

Friday, July 6, 2012

Senate Banking Committee to Hold Second Hearing on Developing the Framework for Safe and Efficient Mobile Payments


Following a similar hearing before the House Financial Services Committee at the end of June, the Senate Banking Committee will be holding a hearing on July 10 at 10:00 AM EST entitled "Developing the Framework for Safe and Efficient Mobile Payments, Part 2." Appearing as witnesses before the Senate Banking Committee will be: Michael L. Katz, Professor of Economics, University of California, Berkeley; Sarah Jane Hughes of the Maurer School of Law, University of Indiana; and Thomas P. Brown, Adjunct Professor, University of California, Berkeley School of Law. Additional witnesses may be announced before the hearing.

The live streaming of the hearing will be available here.

Back on March 29, 2012, the Senate Banking Committee held it first hearing on the issue, and the Committee heard testimony from Sandra F. Braunstein, Director, Division of Consumer and Community Affairs, Board of Governors of the Federal Reserve System; and Kenneth C. Montgomery, First Vice President and Chief Operating Officer, Federal Reserve Bank of Boston. Generally, Federal financial regulators have been claiming that "current financial rules may not be fully up to the task of regulating the growing number of mobile payment systems."

If you have any questions regarding this hearing, congressional activity related to mobile payments or any other activity in Congress that could impact the telecommunications, media and technology sectors, please contact Vance Schuemann or any member of the TLP team.

Thursday, July 5, 2012

Senate to Look Into the Impact on Competition of Exclusion Orders to Enforce Standard-Essential Patents

The Senate Judiciary Committee will hold a hearing on Wednesday, July 11, 2012, at 9:30 a.m EST entitled “Oversight of the Impact on Competition of to Enforce Standard-Essential Patents. Appearing as witnesses before the Committee will be Joseph Wayland, Acting Assistant Attorney General, U.S. Department of Justice, as well as Commissioner Edith Ramirez of the Federal Trade Commission.

This hearing will take place while the Federal Trade Commission is apparently investigating whether Google's Motorola Mobility Unit "is improperly blocking rivals’ access to patents for key smartphone technology." And, while "Apple, Microsoft, HTC, Motorola, Samsung and Nokia are locked in legal battles over the property rights to scrolling on multi-touch screens, product designs and - in lawsuits aimed at Google's Android - the operating system on mobile devices."

The live streaming of the hearing will be available here.

If you have any questions regarding this hearing or any other activity in Congress that could impact the telecommunications, media and technology sectors, please contact Vance Schuemann or any member of the TLP team

Congress to Examine Legislation to Renew the FTC’s Authority to Combat Cross-border Spam, Spyware and Fraud through Reauthorization of the U.S. SAFE WEB Act of 2006

The House Energy and Commerce Committee’s Subcommittee on Commerce, Manufacturing, and Trade, which is chaired by Rep. Mary Bono Mack (R-CA), has announced that it will be holding a legislative hearing on Thursday, July 12, 2012, at 10:00 a.m. to review a draft bill to renew the Federal Trade Commission’s authority to combat cross-border spam, spyware and fraud through reauthorization of the U.S. SAFE WEB Act of 2006.  Appearing as witness before the subcommittee will be Hugh 
Stevenson of the Federal Trade Commission.

The hearing on July will be streamed live here.

The Committee staff's background memoradum for the hearing is available here.

If you have any questions regarding this hearing or any other activity in Congress that could impact the telecommunications, media and technology sectors, please contact Vance Schuemann or any member of the TLP team.




Monday, July 2, 2012

FCC Announces Forum on Future of Wireless Band Plans

On June 27th, the FCC announced that it will hold a forum on the future of wireless band plans in order to launch a continuing dialogue with key industry stakeholders and to explore the technological issues affecting wireless band plan design.  The forum will include discussions on the impact of developments in filter technology on band planning, LTE trends and their implications for future band plans, and network operator perspectives on band plan design.

The forum will be held on July 16th at 9:30 am and is free and open to the public; it is also available to be viewed live at http://www.fcc.gov/live. 

If you have any questions regarding the above, please feel free to contact the TLP team with any questions. 

FCC Comments Sought on Joint Petition for Limited Waiver of Call Signaling Rules

The FCC issued a Public Notice seeking comments on a Joint Petition for a limited waiver of the Commission’s call signaling rules.  The Joint Petition was filed by C Spire Wireless, Corr Wireless, Delta Telephone, Franklin Telephone, and Telepak Networks.  The Petition requests a limited waiver of the Commission’s call signaling rules because the Filers' current equipment is not technically capable of complying with the rules, and its replacement would impose a significant economic burden.  In order to comply with the rules, the Filers maintain that they would have to replace their equipment in order to pass calling party numbers or charging numbers, in accordance with the new multifrequency signaling requirement for voice traffic that is bound for the public switched telephone network via multifrequency trunks.

Comments on the Petition are due July 26, and reply comments are due August 10.  If you have any questions regarding this filing, please feel free to contact the TLP team