5/8. The Federal Communications Commission (FCC) announced that it will consider a Report and Order and Further Notice of Proposed Rulemaking in its proceeding regarding the promotion of secondary market mechanisms for spectrum. Spectrum markets could make more spectrum available for uses associated with mobile internet access devices.

This item is part of WT Docket No. 00-230. This proceeding was opened in 2000, but the FCC has taken little action in it in recent years. However, the FCC has been more active on this topic in a series of related and overlapping administrative proceedings, and informal actions.

The FCC adopted its original Notice of Proposed Rulemaking [61 pages in PDF] in WT Docket No. 00-230 on November 9, 2000. It is titled "In the Matter of Promoting Efficient Use of Spectrum Through Elimination of Barriers to the Development of Secondary Markets". It also announced something titled "Policy Statement".

Tom Sugrue, Chief of the FCC Wireless Telecommunications Bureau (WTB), stated at the FCC's November 9, 2000, meeting that the original NPRM seeks to "clarify and revise Commission policies and rules in a manner that will promote the development of more robust secondary markets for the use of radio spectrum."

Lisa Gaisford, an attorney with the WTB, stated at the November 9 meeting that "the Policy Statement articulates four guiding principles  ... First, Licensees should generally have clearly defined right to use spectrum, including frequency bands, service areas, and license terms of sufficient length, with reasonable renewal expectancy to encourage investment. ... Second, the right to use spectrum should be easily transferable for lease or sale, divisible, or aggregatable. ... Third, licensees and users should have flexibility in determining the services to be provided and the technology used for operation, consistent with the other policies and rules governing the service. ... And fourth, licensees and users have a fundamental obligation to protect against, and the right to be protected from, interference to the extent provided in the Commission's rules."

See also, TLJ story titled "FCC Discusses Secondary Markets for Wireless Spectrum", and TLJ news analysis titled "Mobile Internet Access Devices and the Internet", both dated November 10, 2000.

The FCC released this NPRM on November 27, 2001. On December 26, it published a notice in the Federal Register describing the NPRM and setting deadlines for public comments. See, Federal Register, Dec. 26, 2000, Vol. 65, No. 248, at pages 81475 - 81486.

The FCC's website contains 121 comments, reply comments and other items associated with this proceeding. See, for example, March 7, 2002, comment of the National Telecommunications and Information Administration (NTIA).

FCC started its original rule making proceeding in WT Docket No. 00-230 over two years ago, but until now, has taken little further action. However, the FCC has taken more action in related and overlapping matters.

For example, FCC Chairman Michael Powell formed a Spectrum Policy Task Force (SPTF) in June of 2002. It solicited comments and held hearings, outside of the context of any rule making proceeding. See, story titled "Powell Creates Task Force to Conduct Spectrum Inquiry" in TLJ Daily E-Mail Alert No. 446, June 7, 2002.

The FCC announced this report on November 7, 2002. See, story titled "FCC Announces Report on Spectrum Policy" in TLJ Daily E-Mail Alert No. 545, November 8, 2002.

The SPTF released its Report [73 pages in PDF] on November 15, 2002. One of the many topics addressed by the report is moving towards markets. The report recommends that "spectrum policy must evolve towards more flexible and market oriented regulatory models."

This report labels the FCC's historic control and planning of spectrum use as the "command and control" model. The report advocates continuing this model for some spectrum uses, such as broadcasting and public safety, but also recommends using two other models. It states that the FCC should also allow "the granting of exclusive spectrum usage rights through market based mechanisms" and "spectrum commons".

However, its recommendation regarding markets is very limited. For example, while the report makes numerous recommendations regarding reducing regulatory constraints, allowing more flexibility of use, and increasing regulatory certainty, it does not advocate a system of property ownership in spectrum. Entities that use spectrum would still be licensees, not owners, and still be subject to FCC regulation, except in the case of unlicensed users, who would not be owners either.

The words "property", "owner", and "ownership" are barely used in the report, and usually only in the context of making clear that the report is not recommending a system of property ownership. Also, while the word "rights" is used frequently throughout the report, it is usually coupled with words that dilute its meaning. For example, the report refers to "spectrum users' rights and obligations", "spectrum rights and obligations", "Spectrum Rights and Responsibilities", and "flexible rights ... and clarity in the rules".

See also, story titled "FCC Releases Spectrum Policy Task Force Report" in TLJ Daily E-Mail Alert No. 552, November 19, 2002.

The FCC also sought public comments on the SPTF report. The comment period ended on February 28, 2003. See, original notice [PDF] and notice of extension [PDF]. This is ET Docket 02-135.

There is another relevant FCC action that advocates a more market oriented model. On November 15, 2002, the FCC's Office of Plans and Policy (OPP) released its OPP Working Paper No. 38 [62 pages in PDF] titled "A Proposal for a Rapid Transition to Market Allocation of Spectrum." It was written by Evan Kwerel and John Williams of the OPP.

This paper states that "The current administrative allocation of spectrum has led to shortages and waste." It adds that "A consensus is forming that the current process of allocating radio spectrum by administrative decision making is in serious need of reform. ... Billions of dollars of cumulative loss to the U.S. economy have been attributed to inefficient spectrum allocations under the current system. The solution, according to most economists, is to replace the current administrative allocation with a spectrum market." (Footnote omitted.) See, story titled "FCC Releases OPP Paper With Spectrum Reform Proposal" in TLJ Daily E-Mail Alert No. 552, November 19, 2002.

There is another noteworthy, but non-FCC, paper [36 pages in PDF] titled "Spectrum Management: Property Rights, Markets, and The Commons", by Gerald Faulhaber and David Farber. It is AEI Brookings Joint Center for Regulatory Studies Working Paper No. 02-12, December 2002. Faulhaber, an economist, and Farber, an engineer, are now both professors at the University of Pennsylvania. However, both previously worked at the FCC.

Also, in a related proceeding, the FCC announced a Notice of Inquiry (NOI) regarding "Additional Spectrum for Unlicensed Devices Below 900 MHz and in the 3 GHz Band" on December 11, 2002. Unlicensed devices would include, among other things, 802.11. This is OET Docket No. 02-380. The comment period is still open. See, story titled "FCC Announces Notice of Inquiry Re More Spectrum for Unlicensed Use" in TLJ Daily E-Mail Alert No. 566, December 12, 2002.

There is also the October 30, 2002 speech by Chairman Powell titled "Broadband Migration III: New Directions in Wireless Policy".

5/8 President Bush announced his intent to appoint 25 people to the President's Information Technology Advisory Committee (PITAC). See, White House release.

Marc Benioff (Ch/CEO of Salesforce.com) and Edward Lazowska (Bill and Melinda Gates Chair in the Department of Computer Science & Engineering at the University of Washington) will be the two Co-Chairs of the PITAC.

The other appointees will be:
 • Ruzena Bajcsy (Department of Computer and Information Science at the University of Pennsylvania)
 • Carter Beese (President of Riggs Capital Partners and former SEC Commissioner)
 • Pedro Celis (software architect in the SQL Server group at Microsoft)
 • Bernard Daines
 • Patricia Evans
 • Manuel Fernandez
 • Luis Fiallo (VP of TeleGlobe)
 • Jose-Marie Griffiths (chair and professor of information science at the University of Pittsburgh)
 • William Hannigan (Ch/CE of Sabre)
 • Jonathan Javitt (Senior Adjunct Fellow at the Maryland Potomac Institute for Policy Studies)
 • Judith Klavans (Director of the Center for Research on Information Access at Columbia University)
 • Thomson Leighton (professor of applied mathematics at the Massachusetts Institute of Technology)
 • Harold Mortazavian
 • Randy Mott
 • Peter Neupert (Chairman of Drugstore.com)
 • Eli Noam (professor of finance and economics at Columbia University)
 • David Patterson (professor of computer science at UC Berkeley)
 • Alice Quintanilla
 • Daniel Reed (head of the Department of Computer Science at the University of Illinois at Urbana Champaign)
 • Eugene Spafford (professor of computer sciences at Purdue University)
 • David Staelin (professor of electrical engineering at MIT)
 • Peter Tippett (CTO TruSecure)
 • Geoffrey Yang

The PITAC provides the President "with advice and information on high-performance computing and communications, information technology, and the Next Generation Internet". See, summary of relevant executive orders.

Rep. Sherwood Boehlert (R-NY), Chairman of the House Science Committee, stated in a release that "I am very pleased with today's appointment of members to serve on the President's Information Technology Advisory Committee. These appointments come at a critical time for our economic security and our homeland security, particularly in the area of cybersecurity. These new PITAC members are some of the best scientific, engineering, and business minds in the country, and I believe their collective knowledge and experience will be enormously beneficial to the President and to the Nation.

5/8. The Senate again rejected a pair of cloture motions to end the Democrats' filibusters of the nominations of Texas Supreme Court Justice Priscilla Owen to be a Judge of the U.S. Court of Appeals for the Fifth Circuit (see, Roll Call No. 144) and the nomination of Miguel Estrada to be a Judge of the U.S. Court of Appeals for the DC Circuit (see Roll Call No. 143). Under Senate Rule 22, a cloture motion requires a super majority of 60 votes to pass. The votes broke down along party lines, with a few Democrats voting to end the filibuster.

The nomination of Miguel Estrada is particularly important for technology law. First, the DC Circuit hears many petitions for review of final orders of federal agencies, such as the Federal Communications Commission (FCC) and the Federal Trade Commission (FTC). Second, the DC Circuit has also heard appeals in several important non administrative tech cases in recent years. For example, it heard the Eldred case regarding copyright terms, and the Microsoft antitrust case. It is also likely to soon hear RIAA v. Verizon, regarding use of DMCA subpoenas in the context of peer to peer music copying on the internet. Finally, persons appointed to the DC Circuit are frequently later nominated for the Supreme Court. Clarence Thomas, Antonin Scalia, Ruth Ginsburg, Douglas Ginsburg, Robert Bork and Warren Burger were, or had been, Judges on the DC Circuit when they were nominated for the Supreme Court.

President Bush stated that "Miguel Estrada and Priscilla Owen have been waiting two years for an up-or-down vote in the Senate. Both of these nominees are of the highest integrity and character with tremendous legal experience. Both have been unanimously rated ``Well Qualified´´ by the American Bar Association. Each has the support of a majority of Senators, yet votes on their nominations are being blocked by a minority of Senators who are engaged in simultaneous filibusters. These partisan obstructionist tactics are unprecedented, unacceptable, and inconsistent with the Senate's Constitutional responsibility." See, White House release.

See also, memorandum titled "Republican Whining", by David Carle of the staff of Sen. Patrick Leahy (D-VT), the ranking Democrat on the Senate Judiciary Committee.

The Democratic controlled Senate in the 107th Congress did not confirm Owen. President Bush made this a regular feature of his speeches on behalf of Republican Senate candidates during the campaign leading up to the November 2002 elections.

5/8. President Bush nominated Michael Mosman to be a Judge of the U.S. District Court (DOre). See, White House release.

5/8. The Federal Communications Commission (FCC) released the agenda [3 pages in PDF] for its May 15 meeting. It lists four items. The meeting will be at 9:30 AM at the FCC's Commission Meeting Room. The meeting will webcast by the FCC.

The FCC will consider a Report and Order and Further Notice of Proposed Rulemaking concerning the promotion of secondary market mechanisms to facilitate efficient use of wireless spectrum. This is WT Docket No. 00-230. See, related story, at left.

The FCC will consider a Second Report and Order regarding telecommunications relay services (TRS) for persons with hearing and speech disabilities, an Order on Reconsideration that resolves certain pending issues on reconsideration, and a Further Notice of Proposed Rulemaking regarding TRS. This is CC Docket No. 98-67.

The FCC will consider a Notice of Proposed Rulemaking concerning the operation of unlicensed National Information Infrastructure devices under Part 15 of FCC rules.

The FCC will consider a Further Notice of Proposed Rulemaking regarding classification of Bell Operating Companies (BOCs) and incumbent independent local exchange carriers (ILECs) provision of in-region, interstate and international interexchange telecommunications service and how changes to the competitive landscape within the interexchange market should affect this classification and on what approach is appropriate for BOCs and independent LECs, if and when these carriers may provide in region, interexchange services outside of a separate affiliate. This is CC Docket No. 00-175.

The House will meet at 10:00 AM. It is scheduled to take up HR 2, the Jobs and Growth Tax Act of 2003. See, Republican Whip Notice.

8:30 - 10:15 AM. The New America Foundation (NAF) will host a panel discussion titled "Media Monopoly? A Critique of the FCC's Media Deregulation Plans". The participants will include Sen. Ernest Hollings (D-SC), Sen. Olympia Snowe (R-ME), Sen. Ron Wyden (D-OR), FCC Commissioner Michael Copps, James Fallows (Chairman of the NAF), Frank Blethen (Publisher of the Seattle Times), Gene Kimmelman (Director of the Consumers Union), and Edwin Baker (University of Pennsylvania). See, notice. Location: Room 428A, Russell Building.

9:30 AM - 4:00 PM. George Mason University School of Law will host a conference titled "Critical Infrastructure Protection: Legal Questions at the Forefront of National Security". Lunch will be provided. See, notice and agenda [PDF]. The event is free. However, an RSVP is required. Contact Emily Frye at 703 993-4170 or ffrye@gmu.edu. Location: 3301 North Fairfax Drive, Arlington, VA.

2:00 PM. The Copyright Office (CO) will hold a hearing regarding the exemption of certain classes of works from the Digital Millennium Copyright Act's (DMCA) prohibition against circumvention of technological measures that control access to copyrighted works. See, notice in the Federal Register, March 20, 2003, Vol. 68, No. 54, at Pages 13652 - 13653, and revised notice in the Federal Register, April 23, 2003, Vol. 68, No. 78, at Pages 19966 - 19967 (changing the dates, times and locations). See also, CO web page on rulemakings on anticircumvention, the relevant statutory sections at 17 U.S.C. §§ 2101-2105, and story titled "Copyright Office to Hold Hearings on DMCA Anti Circumvention Exemptions", TLJ Daily E-Mail Alert No. 628, March 21, 2003. Location: Postal Rate Commission, 1333 H Street, NW., Third Floor.

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in New England Pub Comm v. FCC, No. 02-1055. Judges Ginsburg, Rogers and Tatel will preside. Location: 333 Constitution Ave., NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Coolsavings.com v. Brightstreet.com, No. 02-1568, an appeal from the U.S. District Court (NDCal). Location: Courtroom 201, 717 Madison Place, NW.

12:15 PM. The Federal Communications Bar Association's (FCBA) Wireless Telecommunications Committee and Legislative Committee will host a luncheon. The topic will be "Congressional Perspectives on Wireless Issues". The scheduled speakers are Bill Bailey, James Assey, Will Nordwind and Gregg Rothschild. The price is $15. RSVP to Wendy Parish at wendy@fcba.org by May 7 at 5:00 PM. Location: Sidley Austin, 1501 K St., NW, Conference Room 6E.

5:00 PM. Deadline to submit applications to the National Telecommunications and Information Administration (NTIA) for PEACESAT Program grants. Pan-Pacific Education and Communications Experiments by Satellite (PEACESAT) grants are intended to support the acquisition of satellite communications to service Pacific Basin communities and to manage the operations of this network. See, notice in the Federal Register, April 9, 2003 Vol. 68, No. 68, at Pages 17354 - 17356.

Deadline to submit requests to the Federal Trade Commission (FTC) to participate as panelists at the FTC's June 18, 2003, public workshop on the costs and benefits to consumers and businesses of the collection and use of consumer information. See, FTC release.

Day five of the Federal Trade Commission's (FTC) trial in the Rambus matter, Docket No. 9302. Location: FTC, 600 Pennsylvania Avenue, NW, Room 532.

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in Starpower Communications v. FCC, No. 02-1131. Judges Ginsburg, Rogers and Tatel will preside. Location: 333 Constitution Ave., NW.

10:00 AM - 3:00 PM. Day one of a two day meeting titled "Wireless Innovations: New Technologies and Evolving Policies", hosted by the Federal Communications Commission (FCC), National Telecommunications and Information Administration (NTIA), and Department of State. The first day will be a technology showcase. See, notice in the Federal Register, April 24, 2003, Vol. 68, No. 79, at Page 20117 - 20118. Location: Department of Commerce Lobby and Auditorium, 1401 Constitution Ave., NW.

Deadline to submit nominations to the U.S. Patent and Trademark Office (USPTO) for members of the Patent Public Advisory Committee and Trademark Public Advisory Committee. See, notice in the Federal Register, April 4, 2003, Vol. 68, No. 65, at Pages 16480 - 16481.

9:00 AM - 5:00 PM. Day two of a two day meeting titled "Wireless Innovations: New Technologies and Evolving Policies", hosted by the Federal Communications Commission (FCC), National Telecommunications and Information Administration (NTIA), and Department of State. The second day will be a panel discussion on policy. See, notice in the Federal Register, April 24, 2003, Vol. 68, No. 79, at Page 20117 - 20118. Location: Department of Commerce Lobby and Auditorium, 1401 Constitution Ave., NW.

9:30 AM. The Senate Commerce Committee will hold another hearing on media ownership. The scheduled witnesses are Mel Karmazin (P/COO of Viacom), Jim Goodmon (P/CEO of Capitol Broadcasting Company), Frank Blethen (Publisher of the Seattle Times), William Singleton (VCh/CEO of Media News Group and Publisher of the Denver Post and Salt Lake Tribune), Victor Miller (Bear Sterns), Gene Kimmelman (Consumers Union). See, notice. Press contact: Rebecca Hanks at 202 Location: Room 253, Russell Building.

10:00 AM. The Senate Banking Committee will hold a hearing on several pending nominations, including that of Greg Mankiw to be a Member of the President's Council of Economic Advisors. Location: Room 538, Dirksen Building.

2:00 PM. The Senate Finance Committee's International Trade Subcommittee will hold a hearing to examine the status of the free trade area of the Americas, focusing on negotiations and preparations for the Miami Ministerial.

4:00 - 5:00 PM. The U.S. Chamber of Commerce will host an event titled "Homeland Security Business Forum: Science and Technology Under DHS". Charles McQueary, Under Secretary for Science and Technology, Department of Homeland Security, will speak. See, notice and online registration page. The price to attend is $35 (members) or $100 (others). For more information, contact ncfevents @uschamber.com or 202 463-5500. Location: 1615 H Street, NW.

The Federal Communications Commission (FCC) will begin Auction 48 (upper and lower bands paging licenses).

The Federal Trade Commission (FTC) will hold a one day workshop on the role of technology in helping consumers protect the privacy of personal information, including the steps taken to keep their information secure. See, FTC release and notice in the Federal Register, February 26, 2003, Vol. 68, No. 38, at Pages 8904 - 8906. Location: FTC, 601 New Jersey Ave., NW.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) [MS Word] titled "In the Matter of Second Periodic Review of the Commission’s Rules and Policies Affecting the Conversion To Digital Television". This is MB Docket No. 03-15, RM 9832, and MM Docket Nos. 99-360, 00-167, and 00-168. See also, FCC release and notice in the Federal Register, February 18, 2003, Vol. 68, No. 32, at Pages 7737-7747.

9:30 AM. The Federal Communications Commission (FCC) will hold a meeting. Location: FCC, 445 12th Street, SW, Room TW-C05 (Commission Meeting Room).

10:00 AM. The Senate Banking Committee will hold a hearing to examine the Fair Credit Reporting Act (FCRA) and issues presented by the re-authorization of the expiring preemption provisions. Location: Room 538, Dirksen Building.

12:00 NOON. Stratton Sclavos, Ch/CEO of VeriSign, will speak at a Congressional Internet Caucus luncheon. RSVP to rsvp@netcaucus.org or 202 638-4370. Lunch will be served. Location: Mansfield Room (S-207), Capitol Building.

12:00 NOON. The Federal Communications Bar Association's (FCBA) Diversity Committee will host a brown bag lunch. The speakers will be Bill Bailey and Toni Cook Bush. RSVP to Harry Wingo at 202 418-1783 or hwingo@fcc.gov. Location: Room 253, Russell Building.

Extended deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Notice of Inquiry (NOI) [MS Word] regarding "Additional Spectrum for Unlicensed Devices Below 900 MHz and in the 3 GHz Band". Unlicensed devices would include, among other things, 802.11. See, notice in Federal Register, January 21, 2003, Vol. 68, No. 13, at Pages 2730-2733. See also, story titled "FCC Announces Notice of Inquiry Re More Spectrum for Unlicensed Use" in TLJ Daily E-Mail Alert No. 566, December 12, 2002. For more information, contact Hugh Van Tuyl in the FCC's Office of Engineering & Technology at hvantuyl@fcc.gov or 202 418-7506. This is OET Docket No. 02-380. See, notice of extension [PDF].