Friday, September 28, 2012

FCC Adopts Incentive Auction and Mobile Spectrum Holdings NPRMs at September Open Meeting

Today, the FCC held its September Open Meeting where it unanimously approved both a Notice of Proposed Rulemaking (“NPRM”) to launch an incentive auction that will repurpose broadcast television spectrum for mobile broadband and a second NPRM that will initiate a comprehensive review of the Commission’s policies on mobile spectrum holdings. 
The incentive auction NPRM will describe three stages of the proposed auction: (1) a reverse auction where broadcast television licensees submit bids to voluntarily relinquish their spectrum for payment; (2) a repacking of the broadcast television bands in order to free a portion of the ultra-high frequency band for other uses; and (3) a forward auction for flexible use of the newly available spectrum.  The NPRM will seek comment on how each portion of the auction should be designed, what options broadcasters should be able to choose from to make spectrum available, how to repack television stations so their audiences are preserved and disruption to viewers is minimized, whether a proposed band plan for reclaimed spectrum using 5 megahertz blocks and 6 megahertz guard bands is advisable, and how to make spectrum available for unlicensed uses.  After the meeting, the FCC issued a News Release that announces and summarizes the incentive auction NPRM.
The NPRM on mobile spectrum holdings will launch a comprehensive review of the Commission’s current policies on this matter, which have not been reviewed in over a decade.  In this NPRM, the Commission will seek comment on the effectiveness of the current case-by-case analysis approach to transactions and auctions and will ask whether bright-line limits should be adopted in these situations.  The NPRM will also consider the possible thresholds to be applied to the spectrum screen, such as the bands to be included, the geographic markets, and whether there should be differential treatment of different spectrum bands. 
The Commission has not yet released either NPRM, but we will circulate copies of each document as they become publicly available. 
If you have any questions regarding the topics discussed in this meeting, please feel free to contact the TLP Team

Thursday, September 27, 2012

Bipartisan Internet Radio Fairness Act introduced in Congress

On September 21, 2012, the Internet Radio Fairness Act (H.R. 6480/S. 3609) was introduced in the House by Reps. Chaffetz (R-UT) and Polis (D-CO) and in the Senate by Senator Wyden (D-OR). The legislation attempts to level the playing field for Internet radio services by allowing those services to use the same market-based standard used to establish royality rates for other digital services, including cable and satellite radio.  
The sponsors of the legisation point out that "[w]hile Internet radio services compete directly with all audio platforms for listeners in every place you find music – at home, in the car, at the office, and on the go – they are subject to a surprisingly disproportionate royalty burden compared to these other formats." Accordingly, the current "rules discriminate against Internet radio, hamper innovation, and frustrate the goals of the Copyright system." As such, "Internet radio companies today pay more than 55% of revenue in royalty rates when other forms of digital radio such as cable and satellite pay between 7 and 16% of revenue for performance royalties."      

According to the sponsors, the Internet Radio Fairness Act will:
- Provide for Presidential nomination and Senate confirmation of Copyright Royalty Board (CRB) judges. 
- Put Internet radio under the 801(b) standard of the Copyright Act.  The 801(b) standard helps strike the appropriate balance to promote the creation of copyrighted works and encourage copyright users to develop new markets for these works.  The 801(b) standard is used for all other forms of statutory royalty rate setting, including for cable and satellite radio and for determining the royalties paid by the recording industry to music publishers and songwriters, and has worked successfully since 1976.
- Promote a competitive marketplace by making it easier for artists and labels to negotiate directly with the digital radio services and arrive at a negotiated rate outside the CRB process.
- Structure the proceedings consistent with due process under the Federal Rules of Civil Procedure and Federal Rules of Evidence and provide for appellate review comparable to that afforded federal district court adjudications of similar magnitude.         

The legislation is supported by Clear Channel, Salem Communications, Pandora, the Webcaster Alliance, the Digital Media Association (DiMA), Engine Advocacy, the Computer and Communications Industry Association (CCIA), and the Consumer Electronics Association (CEA).

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

FCC's October Open Meeting Agenda

The FCC has released a tentative agenda for its October Open Meeting.  The Commission plans to consider:

  • An Order on Reconsideration that will revise its wireless communications service rules to facilitate the use of 30 megahertz of that spectrum for LTE mobile broadband service while protecting satellite digital audio radio services from harmful interference;

  • A Second Report and Order that modernizes international data reporting requirements, which will significantly reduce overall filing burdens and ensure the collection of data that is needed to protect consumers and competition in international markets; and

  • A Report and Order that establishes a Do-Not-Call Registry for Public Safety Answering Points ("PSAPs"), prohibits autodialed non-emergency calls to those numbers, and imposes monetary penalties for autodialing or disclosing registered PSAP numbers.

The Open Meeting is scheduled for October 17th at 10:30 AM.  It will be shown live at 
Please feel free to contact us with any questions.

Tuesday, September 25, 2012

TLP Member Michael Lazarus Speaks on Incentive Auctions, Spectrum Sharing, at the CCA Convention

TLP Member Michael Lazarus was invited to speak at the Competitive Carriers Association ("CCA") Convention on a panel entitled, "Spectrum, Incentive Auctions and the FCC's Path Forward" on Monday, September 24, 2012.  The panel focused on two notices of proposed rulemaking on rules for an incentive auction of broadcast spectrum and spectrum aggregation - both to be voted on during Friday's Open Commission Meeting

On the subject of concurrent auctions, Mr. Lazarus warned that if the two auctions were placed too close together, it would make it more difficult for wireless carriers to fully participate in the auctions.  He told the audience, "if you've ever filled out an auction application or participated in an auction, it's not a short or easy process.  If carriers go through that without knowing what exactly they're going to be bidding on . . . it's going to be very difficult to prepare."  

With respect to spectrum sharing, Mr. Lazarus emphasized that wireless carriers want to own their licensed spectrum in that they want to "build what they want to build on it."  Mr. Lazarus noted that "if you talk too much about sharing, particularly with respect to government spectrum, it sort of gives a number of agencies in government a way out.  I don't think that's what we should be focusing on just yet, at this point." 

Also participating in the panel discussion were the following individuals: Rick Kaplan, former chief of the Wireless Bureau; Bryan Tramont of Wilkinson Barker Knauer, and James Barker of Latham & Watkins.

If you have any questions, please feel free to contact the TLP Team.         

Broadcast TV Incentive Auction and Mobile Spectrum Holdings NPRMs on Agenda for FCC Open Meeting

The FCC has released a meeting agenda for its open Commission meeting on Friday, Sept. 28.  The Commission will consider three Notices of Proposed Rulemaking to:

·         Implement an incentive auction of broadcast TV spectrum;
·         Initiate a review of its policies governing mobile spectrum holdings; and
·         Update or eliminate earth and space station licensing requirements in order to reduce regulatory burdens on licensees and accelerate delivery of new satellite services to consumers

The meeting will take place at 10:30 AM and will be broadcast live at 
Please feel free to contact us if you have any questions.

Wednesday, September 19, 2012

Petition for Carriers to Disclose 4G Speed

Consumer Watchdog filed with the FCC a Petition for Rulemaking, proposing to require mobile carriers to disclose the speeds of their 4G networks in advertisements and at points of sale.   The Petition notes that although almost all wireless broadband advertisements promise faster 4G speeds, the ads do not disclose what those speeds are.  Because of this missing information, Consumer Watchdog says consumers are unable to effectively comparison shop.  The Petition has not been put on notice by the FCC, but we will notify you if the Commission chooses to take action on this issue. 

Consumer Watchdog’s Petition notes that carriers market LTE, HSPA+, and WiMax technologies as 4G even though each of the technologies is capable of reaching different peak data speeds.  The Petition also alleges that carriers increasingly use 4G to describe technologies that are “basically just evolutions of 3G technologies.”  Consumer Watchdog points out that “the iPhone 4S is considered a 3G device by every wireless carrier that sells [it] for use on its network, except for AT&T,” which describes it as a 4G phone. 

Specifically, Consumer Watchdog’s Petition wants carriers to:

  • Disclose average data speeds in the networks being advertised or in the geographic region where ads appear
  • Disclose national average data speeds that subscribers experience while using the advertised network or device
  • Support advertised average data speed claims with data
  • Disclose for each device, at the point of sale, the national average data speeds and average data speeds within each city or area covered by the carriers’ networks
  • Express all data speeds in Megabits per second
Relatedly, the Commission will hold its first open meeting to discuss its new Measuring Mobile America program, which will study mobile broadband performance throughout the United States with the assistance of wireless carriers, public interest and research communities, and other stakeholders.  The Commission has received commitments to cooperate in this program from AT&T, Sprint, T-Mobile, Verizon, and CTIA.  The meeting will be held in the Commission Meeting Room on Friday, September 21 at 9:30 AM, and it will be streamed live at

Please feel free to contact the TLP team with any questions. 

Tuesday, September 18, 2012

FCC Order Allowing Cable and CLEC Transactions

In an Order released yesterday, the Commission grants in part the National Cable and Telecommunications Association’s (“NCTA”) petition for forbearance from Section 652(b) of the Communications Act, which prohibits cable operators from acquiring more than a 10 percent interest in competitive local exchange carriers (“CLECs”).  The Order harmonizes the provision with the rest of Section 652, which allows CLECs to acquire cable operators.  The Commission believes that the competitive effects of each kind of transaction will be similar. 

Specifically, the Order finds that forbearance will “serve many pro-competitive goals” by “enhanc[ing] facilities-based competition and spur[ring] technological innovation and investment that will benefit consumers.”  The Commission reasons that “forbearance from applying section 652(b) to acquisitions of [CLECs] is warranted” because it will “likely speed the entry of cable operators into the market for telecommunications services provided to business customers and will foster increased facilities-based competition for these services.”  The Order elaborates that such transactions can provide CLECs with access to additional capital and allow them to migrate from leased to owned facilities.  Similarly, cable companies can gain access to CLECs’ back office infrastructure and established relationships with business customers.  The Order also says that “mergers among non-dominant providers in a specific market are unlikely to raise competitive concerns” and that the Commission will continue to conduct a case-by-case public interest analysis of proposed transactions under Section 214. 

Please feel free to contact us if you should have any questions.

Friday, September 14, 2012

Congress to Hold Hearing on the LightSquared Network and Its Investigation of the FCC's Role

The House Energy and Commerce Committee’s Oversight and Investigations Subcommittee will be holding a hearing entitled "The LightSquared Network: An Investigation of the FCC's Role" at 9:30 am EST on Friday, September 21, 2012. The witnesses list for the hearing has not been released.
According to the Committee, the "hearing will examine the process and decision-making leading up to the FCC’s grant of a conditional waiver to LightSquared on January 26, 2011" as well as "focus on whether the FCC’s handling of LightSquared was consistent with prevailing FCC policies, procedures, and precedents."
The House has already considered and passed two bills aimed at reforming and modernizing the FCC's processes and reports to Congress, but that legislation has stalled in the Senate.
If you have any questions regarding this hearing, FCC process reform 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.

Wednesday, September 12, 2012

CTIA Bill Shock Rules - Deadline Oct 17th

Last year CTIA, along with the FCC and Consumers Union, introduced voluntary measures for wireless service providers to implement in order to better protect their customers from ‘bill shock.’  The first deadline for participation, October 17, 2012, is quickly approaching.  By this date, carriers that wish to participate must sign CTIA’s Consumer Code and must begin providing customers with at least two of the four notifications for data, voice, text and international roaming.  These notifications are to be free of charge and automatically provided to the consumer.  Wireless providers are also directed to clearly and conspicuously disclose tools or services that enable consumers to track, monitor and/or set limits on voice, messaging and data usage.  The second deadline that participating wireless carriers should be aware of is April 17, 2013, and by this date all four notifications must be provided to customers.

If you choose to participate, the CTIA Consumer Code states that participating wireless carriers must provide these notifications to the following:

1)     To consumers of currently-offered and future domestic wireless plans that include limited data allowances when consumers approach and when they exceed their allowance for data usage and will incur overage charges;

2)     To consumers of currently-offered and future domestic voice and messaging plans that include limited voice and messaging allowances when consumers approach and when they exceed their allowance for those services and will incur overage charges;

3)     To consumers without an international roaming plan/package whose devices have registered abroad and who may incur charges for international usage.

Participating wireless providers will be listed on the FCC’s website, and will enable consumers to track which carriers are complying with these guidelines.  The list may be accessed here: these notifications are voluntary, we believe that the Commission will be taking notice of those providers that choose to participate, and as a result, we strongly encourage you to participate in this program.  

If you have any questions, please feel free to contact us.

Tuesday, September 11, 2012

FCC Adopts Rules to License Spectrum to FirstNet

In its recently released Report and Order, the Commission implements provisions of the Middle Class Tax Relief and Job Creation Act of 2012 (“the Public Safety Spectrum Act”), enacted by Congress in February, in order to enable the First Responder Network Authority (“FirstNet”) to oversee the deployment of a national public safety broadband network.  In the Report and Order, the Commission reallocates the 700 MHz D Block (758-763/788-793 MHz) for public safety services, and it adopts rules that enable it to license both the D Block and existing public safety broadband spectrum (763-769/793-799 MHz) to FirstNet.  

The Report and Order also eliminates existing FCC rules that are inconsistent with the spectrum’s reallocation and licensing.  The eliminated rules granted authority to the Public Safety Broadband Licensee and governed its associated public-private partnership with the D Block licensee.  In their place, the Commission adopts rules reflecting the will of Congress to license the D Block and existing public safety broadband spectrum to FirstNet.  The Report and Order indicates that the Commission did not make these rule changes according to the Administrative Procedure Act’s notice-and-comment procedures because the Congress directed the Commission to act and left it no room for discretion. 
Please feel free to contact the TLP team if you have any questions. 

Friday, September 7, 2012

FCC Announces September Open Meeting Agenda With Focus on Incentive Auctions and Mobile Spectrum Holdings NPRMs

The FCC announced the tentative agenda for its next open meeting on September 28th.  The Commission will consider three Notices of Proposed Rulemaking to conduct the following, respectively:
  • Implement an incentive auction of broadcast television spectrum to expand economic and innovation opportunities
  • Initiate its review of policies governing mobile spectrum holdings
  • Comprehensively review its licensing and operating rules for satellite services in order to reduce regulatory burdens on licensees and accelerate the delivery of new satellite services to consumers
The first two items on the agenda are required in order to implement a few of the spectrum provisions of H.R. 3630, the Middle Class Tax Relief and Job Creation Act of 2012 (Public Law No. 112-96), which Congress enacted in February 2012. In addition to leading the effort to enact the spectrum auction provisions in H.R. 3630, Rep. Walden (R-OR) and bipartisan members of the House Energy and Commerce Committee are continuing to address the "spectrum crunch" through needed government spectrum reallocation.

The open meeting will begin at 10:30 a.m. at the FCC, and can be viewed live at

Please feel free to contact us if you have any questions.

Thursday, September 6, 2012

Congress to Continue to Push for Clearing Federal Spectrum for Commercial Broadband Use

The House Communications and Technology Subcommittee, which is chaired by Rep. Greg Walden (R-OR), will hold a hearing to discuss how to free more federal spectrum for commercial use on Thursday, December 13, 2012 at 10:15am EST. The hearing is entitled "Creating Opportunities Through Improved Government Spectrum Efficiency." The witnesses will be: Douglas Smith of Oceus Networks; Mark Goldstein of the Government Accountability Office; Karl Nebbia of the National Telecommunications and Information Administration; Steve Sharkey of T-Mobile USA; Preston Marshall of the University of Southern California and PCAST; and Major General Robert Wheeler, USAF, of the U.S. Department of Defense.

Back in August, Chairman Walden stated that the Subcommittee's
Federal Spectrum Working Group has had a numerous "highly informative" meetings and they "have decided to move forward with a subcommittee hearing."  He also indicated that they "will continue to examine how both federal agencies and commercial wireless carriers might benefit from more efficient government use of spectrum," and noted, "[a]s the single largest spectrum user, the federal government could save taxpayers money and make more frequencies available to meet American consumers’ growing demand for mobile broadband services."

Among other things, it is expected that the hearing will question the viability of Administration's proposals to share unused or underused blocks of government spectrum as proposed in the PCAST report and as has been pushed to varying degrees by the NTIA, FCC and the Administration.

The following is from the Republican Committee staff's briefing memorandum for the hearing.
  1. Overview

  2. Meeting the spiraling demand for mobile broadband services will require auctioning additional spectrum to wireless carriers. That is why this subcommittee worked to authorize incentive auctions in which the Federal Communications Commission (FCC) shares proceeds with commercial licensees that return spectrum to be auctioned for wireless services. But the Federal government, the single largest user of spectrum, should play its part, too. Using spectrum more efficiently and with modernized equipment could help Federal agencies better fulfill their objectives while freeing spectrum for broadband services. That approach made 90 MHz of spectrum available for the 2006 Advanced Wireless Services (AWS-1) auction and produced more than $13.7 billion in auction proceeds.

    Yet rather than focusing on repeating that success, recent reports by the National Telecommunications and Information Administration (NTIA) and the President’s Council of Advisors on Science and Technology (PCAST) pivot toward sharing spectrum between Federal and commercial users. To support its case, the NTIA claims that clearing additional spectrum currently used by Federal agencies would cost more than $18 billion and take 10 years. The NTIA has conceded, however, that it conducted no independent analysis to reach those estimates, but merely aggregated estimates by the Federal agencies using the spectrum. Initial agency estimates proved overinflated in the AWS-1 experience. And conversations in the Commerce Spectrum Management Advisory Committee have already indicated that agencies may have based these initial estimates on inaccurate assumptions. While the subcommittee welcomes the PCAST report to the extent that it explores additional options, sharing spectrum in the way it envisions is less useful than clearing spectrum and too untested to be the focus of the subcommittee’s spectrum strategy. Such sharing should be reserved for cases in which Federal clearing is impossible.
  3. Background

  4. The two primary approaches for making spectrum used by Federal agencies available to the private sector are reallocation and sharing.
    In the past, Federal users have relocated to other bands to make more spectrum available for auction to the private sector. To facilitate such clearing, the 2004 Commercial Spectrum Enhancement Act (CSEA) authorizes the FCC to hold contingent auctions of spectrum used by Federal agencies. If the proceeds of the auction exceed the cost of relocating the Federal agencies, the winning bidders receive licenses for the spectrum and the Federal agencies receive funding to relocate. This approach led to the AWS-1 auction of spectrum from 1710-1755 MHz used by Federal agencies, paired with spectrum from 2110-2155 MHz. Building on the experiences of the AWS-1 auction, Congress amended the CSEA in the Middle Class Tax Relief and Job Creation Act of 2012 to make clearing even smoother by allowing agencies to use some of the funding for advance planning and system upgrades.
    An alternative to clearing Federal users is to allow commercial users to share the spectrum the Federal users occupy, so long as they can do so in a way that does not interfere with the Federal use. There are many types of sharing. In geographic sharing, multiple entities use the
    same band of frequencies in different locations. For example, two different broadcasters can use channel 7 in New York and channel 7 in Los Angeles because their service areas do not overlap and they won’t cause interference to one another. In temporal sharing, multiple entities use the same band of frequencies at different times. Again using a broadcast analogy, some AM radio stations sign off the air during part of the day so other stations can boost their transmitter power. In dynamic or cognitive sharing, an entity checks to see if anyone is using a band of frequencies, starts when everyone else has stopped, and stops again when others start. This type of sharing is much more complex and can encompass many different technologies, including "dynamic frequency selection" (which is a part of the Wi-Fi standard), accessing spectrum through a database of available frequencies (which is a part of the television white spaces model), and spectrum sensing, in which devices "listen" to see if certain frequencies are in use (which was rejected in the white spaces model because of technical challenges).

    Based on the assumption that additional Federal clearing would be too difficult, cost too much, and take too long, the PCAST released a paper in July 2012 that emphasizes dynamic and cognitive sharing over clearing. Federal users would remain where they are and a database would keep track of governmental spectrum uses. Potential commercial or unlicensed users could then query the database and gain access to the spectrum when they can do so in a way that does not interfere with the Federal use. Any compatible device could seek to operate on the spectrum on an unlicensed basis or a user could pay for exclusive access to the spectrum for a period of time. The government would pre-empt any commercial use when it needs exclusive use of the spectrum.

    To help determine the feasibility of various types of sharing in the context of specific spectrum and real-world services, T-Mobile sought special temporary authority in May 2012 from the FCC to test the use of commercial wireless technology in the 1755-1780 MHz band. The 1755-1780 MHz band has long been sought after by the commercial wireless industry for reallocation because it is immediately adjacent to existing wireless spectrum and because that spectrum is used around the world for commercial wireless operations, creating economies of scale. The FCC granted T-Mobile’s request in August, which will allow it and other members of the wireless industry to test how best to accommodate commercial wireless users in the 1755-1780 MHz band.

    This band of frequencies, however, is one small piece of the government’s spectrum use. To get a better understanding of the scope of government spectrum holdings, Members on subcommittee’s working group on Federal spectrum use sent a letter to the NTIA in July 2012 seeking a detailed listing of government spectrum holdings. The NTIA has begun providing responses to the questions asked, including the spectrum holdings in specific frequencies broken down by Federal agency. The first response from NTIA provides critical information on the scale and scope of Federal use and committee staff continues to work with NTIA to gather the remainder of the information requested by the working group.
  5. Discussion

  6. Auction participants bidding on spectrum to be cleared have the certainty of knowing that if they submit a winning bid and the aggregate auction proceeds exceed the clearing costs, they will have the exclusive use of the spectrum. Consequently, they have an incentive to pay more and to invest in network and equipment resources to use the spectrum. The PCAST report largely based its push for sharing of spectrum over clearing based on the assumption that it will be too costly to clear additional spectrum of Federal users. It rooted that claim, however, on a report by the NTIA alleging that the clearing and reallocation of spectrum in the 1755-1850 MHz band will take ten years and cost more than $18 billion. The NTIA, however, engaged in no independent analysis to reach that conclusion. Rather, it merely aggregated the estimates of the Federal agencies currently using the spectrum. Neither the NTIA nor the PCAST report fully investigated the agencies’ relocation estimates, whether the agencies need all the spectrum they have, or whether they could get by with less if they had more efficient equipment or relied more on commercial services. Market forces compel commercial providers to become more efficient. Federal agencies are not subject to such forces and have less incentive to contain costs. The CSEA provides a counterbalancing mechanism to account for that fact.

    The database technology that the PCAST report bases its proposal on is also largely untested, and completely untested at the scale PCAST envisions. Moreover, the PCAST report fails to address the economic feasibility of its proposal. Carriers are unlikely to pay as much for spectrum without the certainty that they can use all of the spectrum they pay for, when and how they need it. The proposal is therefore unlikely to raise as much money as clearing would, and might not even raise enough money to offset the costs that Federal users would incur to enable the sharing. Carriers and manufacturers, already forced to make tough engineering and economic decisions in deciding which spectrum bands to support in their wireless devices, are also unlikely to add support for a band where access may or may not be available because of government use. The PCAST report also assumes commercial providers will pay for spectrum licenses and the networks needed to make use of the spectrum in bands where their right to access the spectrum is somewhere greater than those of unlicensed users in the same band but subordinate to Federal users. Carriers are less likely to pay for access to spectrum if that same spectrum is available free for unlicensed uses. Carriers are also less likely to pay for spectrum if their use is subject to Federal pre-emption. Indeed, the FCC assumed that carriers would bid on the D-block in the 2007 700 MHz auction even though their rights would be subordinate to local public safety users. That assumption proved false, and the D-block failed to sell.

    None of this is to say that sharing should not be explored. For the time being, however, the PCAST approach it too speculative to be the focus of the Committee’s spectrum strategy. It should be reserved for cases where attempts to clear fail, where clearing is impossible, or where there is greater certainty that the costs of clearing will exceed the value of the spectrum. More efforts should be directed toward working with Federal agencies to determine how to clear spectrum in ways that not only works for governmental users, but helps improve their capabilities.

If you have any questions regarding this hearing, government spectrum reallocation 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 Mobile Apps Hearing Rescheduled for September 12, 2012

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 has rescheduled its postponed hearing on mobile apps for Wednesday, September 12, 2012 at 9:45am EST. The hearing is now entitled "Where the Jobs Are: There’s an App for That." The witnesses will be: Peter Farago of Flurry, Inc.; Stephanie Hay of FastCustomer and 500 Startups; Rey Ramsey of TechNet; and Morgan Reed of the Association for Competitive Technology.

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 Intelligence Committee to Hold Hearing on Chinese Telecom Companies Huawei and ZTE

The House Intelligence Committee has announced that it will hold an open hearing entitled "National Security Threats Posed by Chinese Telecom Companies Working in the U.S." on Thursday, September 13, 2012 from 10:00am until 1:00pm EST. The Committee, which is chaired by Rep. Mike Rogers (R-MI), has indicated that the hearing is "part of their investigation into the national security threats posed by Chinese telecommunications companies working in the United States." The witnesses are expected to be representatives from Huawei and ZTE.

The Committee launched its investigation into Huawei and ZTE in the fall of 2011. According to the Committee, the "investigation is reviewing the extent to which these companies have ties to the Chinese government, or otherwise provide the Chinese government an opportunity for greater foreign espionage, threaten our critical infrastructure, or increase the opportunities for Chinese economic espionage." Back on June 13, 2012, the Committee's Chairman and Ranking Member sent letters to Huawei and ZTE requesting information and documents.

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.


Wednesday, September 5, 2012

Congress to Look at Reliable Telecommunications and Recent 911 Outages

The House Homeland Security Committee's Subcommittee on Emergency Preparedness, Response, and Communications has announced that it will be holding a hearing entitled "Resilient Communications: Current Challenges and Future Advancements" on September 12, 2012 at 2:00pm EST. Appearing before the Subcommittee as witnesses will be Bobbie Stempfley of the Department of Homeland Security; David Turetsky of the Federal Communications Commission; Trey Forgety of the National Emergency Number Association; Kyle Malady of Verizon; Terry Hall of APCO International;  Chris McIntosh of the Commonwealth of Virginia.

The FCC has noted that "a fast-moving weather storm called a derecho brought a wave of destruction across wide swaths of the United States" on June 29, 2012," and "[t]he storm had a significant adverse effect on communications services generally and 9-1-1 facilities particularly." While there were "isolated breakdowns in Ohio, Kentucky, Indiana, and Pennsylvania," there were "systemic failures in northern Virginia and West Virginia" and "[t]he impact of the storm in northern Virginia was particularly severe, notably in Fairfax County, parts of Prince William County, Manassas Park and Manassas, where over 1 million people faced the possibility of not being able to call 9-1-1 successfully." Further, "media reports and local government officials indicate that public safety answering points (PSAPs)...failed, as did backup systems." And, "[m]ultiple access technologies appear to have been affected by the outages, including traditional networks, broadband networks, and wireless networks." Accordingly, the FCC is currently investigating the situation and has sought public comment.  In that proceeding, numerous network service providers have expressed concern that the incident will be used by the FCC and public safety trade associations to push for one-size-fit-all regulatory mandates on the entire industry that will be costly, ineffective and harmful to innovation.

Even though many public safety officials have blamed Verizon in the press for the 911 outages in June, the investigation by the FCC has not yet been completed. This kerfuffle between Verizon and local public safety entities is especially interesting given that Verizon, associations representing local and state government officials, and public safety trade associations, like APCO, aggressively lobbied the White House and Congress to pass legislation to reallocate the commercial D Block spectrum to public safety and spend billions of Federal dollars to built and maintain a new nationwide public safety wireless networks for local and and state governments. Of course, it is expected that Verizon will attempt to win the contracts to operate that "critical" network based on its past record providing reliable services.

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, September 4, 2012

Republican and Democratic Party Platforms Address Spectrum as well as Telecom, Media and Internet Regulation

During their respective conventions, both the Republicans and Democrats  adopted party platforms that address spectrum issues as well as telecom, media and Internet regulations. Below are the key exerpts from both documents.

From pages 12, 23, 24, 41 and 42 of the 2012 GOP Platform:

Protecting Internet Freedom

The Internet has unleashed innovation, enabled growth, and inspired freedom more rapidly and extensively than any other technological advance in human history. Its independence is its power. The Internet offers a communications system uniquely free from government intervention. We will remove regulatory barriers that protect outdated technologies and business plans from innovation and competition, while preventing legacy regulation from interfering with new and disruptive technologies such as mobile delivery of voice video data as they become crucial components of the Internet ecosystem. We will resist any effort to shift control away from the successful multi-stakeholder approach of Internet governance and toward governance by international or other intergovernmental organizations. We will ensure that personal data receives full constitutional protection from government overreach and that individuals retain the right to control the use of their data by third parties; the only way to safeguard or improve these systems is through the private sector.
A Vision for the Twenty-First Century: Technology, Telecommunications and the Internet

The most vibrant sector of the American economy, indeed, one-sixth of it, is regulated by the federal government on precedents from the nineteenth century. Today’s technology and telecommunications industries are overseen by the Federal Communications Commission, established in 1934 and given the jurisdiction over telecommunications formerly assigned to the Interstate Commerce Commission, which had been created in 1887 to regulate the railroads. This is not a good fit. Indeed, the development of telecommunications advances so rapidly that even the Telecom Act of 1996 is woefully out of date. An industry that invested $66 billion in 2011 alone needs, and deserves, a more modern relationship with the federal government for the benefit of consumers here and worldwide.

The current Administration has been frozen in the past. It has conducted no auction of spectrum, has offered no incentives for investment, and, through the FCC’s net neutrality rule, is trying to micromanage telecom as if it were a railroad network. It inherited from the previous Republican Administration 95 percent coverage of the nation with broadband. It will leave office with no progress toward the goal of universal coverage – after spending $7.2 billion more. That hurts rural America, where farmers, ranchers, and small business manufacturers need connectivity to expand their customer base and operate in real time with the world’s producers. We encourage public-private partnerships to provide predictable support for connecting rural areas so that every American can fully participate in the global economy.

We call for an inventory of federal agency spectrum to determine the surplus that could be auctioned for the taxpayers’ benefit. With special recognition of the role university technology centers are playing in attracting private investment to the field, we will replace the administration’s Luddite approach to technological progress with a regulatory partnership that will keep this country the world leader in technology and telecommunications.
The First Amendment: Speech that is Protected

The rights of citizenship do not stop at the ballot box. They include the free speech right to devote one’s resources to whatever cause or candidate one supports. We oppose any restrictions or conditions that would discourage Americans from exercising their constitutional right to enter the political fray or limit their commitment to their ideals. As a result, we support repeal of the remaining sections of McCain-Feingold, support either raising or repealing contribution limits, and oppose passage of the DISCLOSE Act or any similar legislation designed to vitiate the Supreme Court’s recent decisions protecting political speech in Wisconsin Right to Life v. Federal Election Commission and Citizens United v. Federal Election Commission. We insist that there should be no regulation of political speech on the Internet. By the same token, we oppose governmental censorship of speech through the so-called Fairness Doctrine or by government enforcement of speech codes, free speech zones, or other forms of "political correctness" on campus.
A Twenty-First Century Threat: The Cybersecurity Danger

The frequency, sophistication, and intensity of cyber-related incidents within the United States have increased steadily over the past decade and will continue to do so until it is made clear that a cyber attack against the United States will not be tolerated. The current Administration’s cyber security policies have failed to curb malicious actions by our adversaries, and no wonder, for there is no active deterrence protocol. The current deterrence framework is overly reliant on the development of defensive capabilities and has been unsuccessful in dissuading cyber-related aggression. The U.S. cannot afford to risk the cyberequivalent of Pearl Harbor.

The government and private sector must work together to address the cyberthreats posed to the United States, help the free flow of information
between network managers, and encourage innovation and investment in cybersecurity. The government must do a better job of protecting its own
systems, which contain some of the most sensitive data and control some of our most important facilities. As such, we encourage an immediate update of the law that was drafted a decade ago to improve the security of government information systems. Additionally, we must invest in continuing research to develop cutting-edge cybersecurity technologies to protect the U.S. However, we acknowledge that the most effective way of combating potential cybersecurity threats is sharing cyberthreat information between the government and industry, as well as protecting the free flow of information within the private sector.

The current Administration’s laws and policies undermine what should be a collaborative relationship and put both the government and private entities at a severe disadvantage in proactively identifying potential cyberthreats. The costly and heavy-handed regulatory approach by the current Administration will increase the size and cost of the federal bureaucracy and harm innovation in cybersecurity. The government collects valuable information about potential threats that can and should be shared with private entities without compromising national security. We believe that companies should be free from legal and regulatory barriers that prevent or deter them from voluntarily sharing cyberthreat information with their government partners.

From pages 9, 12, 24 and 31 of the 2012 Democratic Party Platform:

Out-Innovating the Rest of the World.
Democrats support a world-class commitment to science and research so that the next generation of innovators and high-technology manufacturing companies thrive in America. President Obama signed into law changes to help entrepreneurs raise capital and create jobs.
Democrats are committed to preparing math and science teachers and training workers with skills for the future, and doubling funding for key basic research agencies. We support expanding and making permanent the Research and Experimentation Tax Credit. President Obama has charted a new mission for NASA to lead us to a future that builds on America’s legacy of innovation and exploration. Democrats reformed the patent system to speed approval of investors’ patents and provide alternatives to wasteful litigation.
Democrats know that the United States must preserve our leadership in the Internet economy. We will ensure that America has a 21st century digital infrastructure – robust wired and wireless broadband capability, a smarter electrical grid, and upgraded information technology infrastructure in key sectors such as health care and education. President Obama has committed to ensuring that 98 percent of the country has access to high-speed wireless broadband Internet access. We are finding innovative ways to free up wireless spectrum and are building a state-of-the-art nationwide, interoperable, public safety network. President Obama is strongly committed to protecting an open Internet that fosters investment, innovation, creativity, consumer choice, and free speech, unfettered by censorship or undue violations of privacy.
The administration is vigorously protecting U.S. intellectual property – our technology and creativity – at home and abroad through better enforcement and innovative approaches such as voluntary efforts by all parties to minimize infringement while supporting the free flow of information. Customs seizures of counterfeit drugs are up 600 percent and seizures of fake consumer safety and critical technology have increased nearly 200 percent; the Department of Justice has aggressively prosecuted the illegal overseas transfer of trade secrets. As technology advances, we will continue to work with all stakeholders to protect the security of the nation and its knowledge assets, U.S. intellectual property, the functioning of fair and competitive markets, and the privacy, free expression, and due process rights of Americans. 

…President Obama proposed a simpler, smarter, and more cost-effective approach to regulation, rather than one riddled with special rules written by lobbyists. Efficient and effective regulations enforce common sense safeguards to protect the American people. That’s what we’ve done in this country for more than a century. It’s why our food is safe to eat, our water is safe to drink, and our air is safe to breathe. It’s why we put in place consumer protections against hidden fees and penalties by credit card companies and new rules to prevent another financial crisis. That’s why the administration launched the Internet Privacy Bill of Rights and encouraged innovative solutions such as a Do Not Track option for consumers. But there’s no question that some regulations are outdated, unnecessary, or too costly. That’s why President Obama asked all federal agencies to review and streamline outdated regulations, an effort that will save at least $10 billion over five years, and will eliminate tens of millions of hours in annual paperwork burdens. That’s why he has approved fewer regulations in the first three years of his presidency than his Republican predecessor did in his. At the same time, those regulations have more than 25 times the net benefits of the previous administration’s regulations….

Cybersecurity threats represent one of the most serious potential national security, public safety, and economic challenges we face. The very technologies that empower us to lead and create also empower individual criminal hackers, organized criminal groups, terrorist networks, and other advanced nations to disrupt the critical infrastructure that is vital to our economy, commerce, public safety, and military. Defending against cyber threats requires networks that are secure, trustworthy, and resilient. The President and the administration have taken unprecedented steps to defend America from cyber attacks, including creating the first military command dedicated to cybersecurity and conducting a full review of the federal government’s efforts to protect our information and our infrastructure. We will continue to take steps to deter, prevent, detect, and defend against cyber intrusions by investing in cutting-edge research and development, promoting cybersecurity awareness and digital literacy, and strengthening private sector and international partnerships. President Obama has supported comprehensive cybersecurity legislation that would help business and government protect against risks of cyber attacks while also safeguarding the privacy rights of our citizens. And, going forward, the President will continue to take executive action to strengthen and update our cyber defenses.

Internet Freedom.

The Obama administration has led the world to recognize and defend Internet freedom – the freedom of expression, assembly, and association online for people everywhere – through coalitions of countries and by empowering individuals with innovative technologies. The administration has built partnerships to support an Internet that is secure and reliable and that is respectful of U.S. intellectual property, free flow of information, and privacy. To preserve the Internet as a platform for commerce, debate, learning, and innovation in the 21st century, we successfully negotiated international Internet policymaking principles, support the current multi-stakeholder approach to Internet governance, and oppose the extension of intergovernmental controls over the Internet.

If you have any questions regarding how these political documents could influence the future of the telecommunications, media and technology sectors, please contact Vance Schuemann or any member of the TLP team.