10/27. Federal Communications Commission (FCC) Chairman Michael Powell gave a speech [5 pages in PDF] titled "The Wireless Broadband Express" on October 26. He spoke about the FCC's spectrum related initiatives at a convention hosted by the Cellular Telecommunications and Internet Association (CTIA). Then, on October 27, he gave a speech [5 pages in PDF] in Las Vegas, Nevada titled "WISPs: Bringing the Benefits of Broadband to Rural America".

He advocated "more broadband spectrum", "greater licensing flexibility", allowing "the competitive market to determine the technology standards for mobile broadband", and "pro-competitive and deregulatory policies" in his San Francisco speech. He spoke about the "democratization of communications", "empowerment" and how the FCC's "unlicensed rules have been a hotbed for wireless broadband innovation" in his Las Vegas speech.

"First, we need more broadband spectrum", said Powell (at right) in San Francisco. "The FCC is moving aggressively to put valuable spectrum on the market through auctions. In January, the Commission will auction over 200 broadband PCS C and F block licenses. In addition, we are working collaboratively with our colleagues at NTIA to move forward expeditiously to an auction of spectrum at 2 GHz for advanced wireless services. We also greatly appreciate Congress’ efforts to craft the Spectrum Relocation Trust Fund to ensure that the relocation of military operations that currently use this spectrum can be adequately funded with the proceeds of this auction."

Although, the Congress has not yet passed this bill. See, HR 1320, the "Commercial Spectrum Enhancement Act". The House passed its version of HR 1320 on June 11, 2003. See, story titled "House Passes Commercial Spectrum Enhancement Act" in TLJ Daily E-Mail Alert No. 679, June 12, 2003. The Senate Commerce Committee passed its version of HR 1320 on June 26, 2003. However, the full Senate has yet to pass a bill. See, story titled "Senate Commerce Committee Approves Commercial Spectrum Enhancement Act" in TLJ Daily E-Mail Alert No. 689, June 27, 2003.

Powell stated in Las Vegas that "We continue to look for more ways to encourage growth of unlicensed wireless broadband services. Last year, we made an additional 255 MHz of spectrum available in the 5 GHz region of the spectrum -- adding a sizable chunk of spectrum to that already available for unlicensed devices. We also made spectrum available in the upper reaches of the spectrum -- above 70 GHz -- on an unlicensed and very lightly licensed basis. Technologies that use this new spectrum frontier are rapidly maturing and new services are on the horizon. We are also in the process of considering additional spectrum bands for use by unlicensed devices -- the so-called spectrum ``white spaces´´ between the channels assigned for TV broadcast services and 50 MHz of spectrum in the 3650 MHz band."

DTV Transition. He addressed DTV transition. "In the 700 MHz band, the Commission has heard the call of the wireless community and is making every effort to ensure the availability of this spectrum for public safety and new advanced wireless services in the most expeditious manner possible. It is no longer a question of ``whether´´ the television transition will end and free up more spectrum, but instead a question of ``when.´´ I believe we need a hard deadline for this transition, as do so many. A hard deadline will give the public, industry desperately needed clarity. If your industry agrees, I urge you to make a point of being heard in Washington." (Quotations are from the San Francisco speech unless otherwise indicated. Although, he repeated some statements.)

Smart Antennas. Powell said that "We believe technology is going to usher in the possibility of much more dynamic use of frequencies without unacceptable interference. Just as an example, the Commission has pushed forward on new smart radio equipment. We recently concluded a proceeding that enabled ``smart´´ antennas to be used in some of our unlicensed bands." See, story titled "FCC Adopts Report and Order Regarding Unlicensed Devices" in TLJ Daily E-Mail Alert No. 934, July 9, 2004.

He added that "Smart radios also can facilitate secondary markets. Licensed users can lease their spectrum to third parties using smart radio technologies, allowing spectrum to move more quickly to its higher and best uses without the impediment of prior government approval. And, because of their frequency agility, smart radios can also act as a bridge between two different radio services -- effectively translating the signals from one service to the frequency and format of another."

Unused Broadcast TV Spectrum. He also stated that "We are also exploring the possibility of using smart technology to allow advance wireless services to operate in the white spaces of the broadcast bands. This must be done carefully, of course, but advances in technology have made it a possibility, where in the past to even suggest it would be heresy."

Powell urged his Las Vegas WISP audience to submit comments to the FCC in its TV white space proceeding, as well as in its smart antennas and 3650 MHz proceedings.

See also, story titled "FCC Adopts NPRM Regarding Unlicensed Use of Broadcast TV Spectrum" in TLJ Daily E-Mail Alert No. 898, May 14, 2004.

Private Commons. Powell stated that "I introduced an innovative approach to allow users of smart equipment to gain access to spectrum that is underutilized by licensees -- the private commons model. Under these rules, licensees can set aside an entire license or a portion of a license for an arrangement in which users can access that spectrum under technical rules and other conditions set by the licensees." See, "Second Report & Order, Order on Reconsideration, and Second Further Notice of Proposed Rulemaking" adopted at the July 8, 2004 meeting. It is FCC 04-167 in Docket No. 00-230. See also, story titled "FCC Adopts Second Secondary Markets Report and Order" in TLJ Daily E-Mail Alert No. 934, July 9, 2004.

He added that "This new option has the potential to provide spectrum for ad hoc and mesh, peer-to-peer networks that can be used to offer wireless broadband services. The model also may be particularly valuable to users of the unlicensed bands, such as wireless ISPs, who may find those bands congested and may be looking for a source of additional spectrum to supplement their existing operations."

Enforcement of Technical Rules. Powell stated in his Las Vegas speech that "I hear concerns from the WISP community that -- while it’s not a significant number -- not everyone is playing by the rules -- that a few folks out there are using non-FCC certified equipment or are installing power amplifiers to boost their signals beyond allowable limits. Understand this directly from me -- we are fully committed to enforcing our technical rules. Indeed, over the last two years, we have investigated approximately one dozen complaints related to WISPs for non-compliance with our rules."

He added that "we have significantly ramped up the resources in our enforcement field offices -- increasing the total investment by more than 5 times. Also, our investment in the FCC’s engineering laboratory has increased by more than 20 times -- providing us with much more sophisticated tools for technical analyses. So, in an era of increasingly more intensive spectrum use, we now have the improved tools to do our jobs policing the airwaves."

10/26. The Federal Communications Commission's (FCC) Wireline Competition Bureau's (WCB) Industry Analysis and Technology Division (IATD) released its report [52 pages in PDF] titled "Telephone Subscribership in the United States (Data Through July 2004)". Telephone subscribership continues to decline.

The report states that the percentage of households subscribing to telephone service is 93.8%. This data is based upon a question asked by the Census Bureau: "Is there a telephone in this house/apartment?". The last report [53 pages in PDF], for data through March of 2004, reported subscribership at 94.2%. The November 2003 survey reported 94.7%. The July 2003 survey reported 95.2%. The March 2003 survey reported 95.5%.

This data is based upon a question asked by the Census Bureau: "Is there a telephone in this house/apartment?". In addition, these declines are statistically significant because the large sample sizes of Census Bureau surveys. The Census Bureau surveys 50,000 to 60,000 households for each survey.

The report states that the data is not seasonally adjusted. However, since this trend has prevailed for over one year, the decline does not reflect seasonal variations in subscribership.

The report does not attempt to explain this trend. Nor does it supply data that provides an explanation. Notably, the report does not contain data on fungible services that consumers might substitute for traditional telephones. There is no data in the report on e-mail, instant messaging, broadband internet access, VOIP applications, pagers, blackberries, or other wireless devices with internet access.

The report contains extensive demographic data. It breaks down telephone subscribership by income level, race, and state. Notably, the trend of declining telephone subscribership holds across income and age groups. There have been three straight declines in telephone subscribership for households in the top income category.

The report asserts that "The number and percentage of households that have telephone service represent the most fundamental measures of the extent of universal service." Perhaps this downward trend forebodes an impending obsolescence of telephone subscribership as a measure of the universality of access to communications technologies.

See also, story titled "FCC Reports Another Decline in Telephone Subscribership" in TLJ Daily E-Mail Alert No. 959, August 16, 2004.

10/27. Carol Ann Bischoff, the Chief Legal Officer of CompTel/ASCENT, will leave her job, effective November 3, 2004, "to focus on raising her two young daughters". See, CompTel/ASCENT release.

10/27. The Electronic Privacy Information Center (EPIC) and other groups published a book titled Litigation Under the Federal Open Government Laws 2004. The 572 page book covers the Freedom of Information Act,  Privacy Act, Federal Advisory Committee Act, and Government in the Sunshine Act. The price is $40.00. See, information and online order page.

10/27. The Federal Communications Commission (FCC) released the text [26 pages in PDF] of its Memorandum Opinion and Order regarding the unbundling obligations of regional Bell operating companies (RBOCs) under 47 U.S.C. § 271. The FCC announced, but did not release this item on October 22, 2004. This item is FCC-04-254 in WC Docket No. 01-338, WC Docket No. 03-235, WC Docket No. 03-260, and WC Docket No. 04-48. See also, story titled "FCC Announces Report and Order Regarding Unbundling Obligations Under § 271" in TLJ Daily E-Mail Alert No. 1,005, October 27, 2004.

10/27. The Department of Homeland Security (DHS) issued a release that describes the conference that it co-hosted in Berlin, Germany on October 20-22, 2004 titled "International Cyber Security Cooperation: Watch, Warning, and Incident Response".

The House is in recess until November 16, 2004. See, Republican Whip Notice.

The Senate is in recess until November 16, 2004.

Day four of a five day conference hosted by the Office of the Secretary of Defense (OSD) Networks and Information Integration (NII) and the Joint Chiefs of Staff titled "7th Annual DoD Spectrum Management Conference". See, notice. Location: Radisson Hotel, Annapolis, Maryland.

8:30 - 11:30 AM. The Software and Information Industry Association (SIIA) will host a seminar titled "Software Licensing Best Practices Seminar Series: Licensing (and Other) Issues in Software Distribution". See, notice. Prices vary. Location: Mintz Levin, 12010 Sunset Hills Road, Suite 900 Reston, Virginia.

2:00 - 4:00 PM. The Federal Communications Commission's (FCC) WRC 07 Advisory Committee's Informal Working Group 3: IMT-2000 and 2.5 GHz Sharing Issues, will meet. See, FCC notice [PDF]. Location: FCC, 445 12th Street, SW, South Conference Room (8th Floor, Room 8-B516).

6:00 - 8:00 PM. The Federal Communications Bar Association (FCBA) will host the second part of a two part continuing legal education (CLE) seminar on Homeland Security. Prices vary. See, notice. Location: FCC, Commission Meeting Room, 445 12th St., SW.

Day five of a five day conference hosted by the Office of the Secretary of Defense (OSD) Networks and Information Integration (NII) and the Joint Chiefs of Staff titled "7th Annual DoD Spectrum Management Conference". See, notice. Location: Radisson Hotel, Annapolis, Maryland.

Deadline to submit comments to the Federal Communications Commission (FCC) in response to its notice of proposed rulemaking (NPRM) regarding the Emergency Alert System (EAS). The FCC adopted this NPRM at its August 4, 2004 meeting, and released it on August 12, 2004. This NPRM is FCC 04-189 in EB Docket No. 04-296. See, notice in the Federal Register, August 30, 2004, Vol. 69, No. 167, at Pages 52843 - 52847.

Daylight Savings Time ends.

10:00 AM. The U.S. Court of Appeals (FedCir), Panel A, will hear oral argument in Nellcor Puritan v. Masimo Corporation (04-1247). (The Court will decide Hoffer v. Microsoft, No. 04-1103, on the briefs.) See, FedCir calendar. Location: Courtroom 402, 717 Madison Place, NW.

10:00 AM. The U.S. Court of Appeals (FedCir), Panel B, will hear oral argument in Harris Corp. v. Ericsson (No. 03-1625) and Syntex USA v. Apotex (No. 04-1252). See, FedCir calendar. Location: Courtroom 203, 717 Madison Place, NW.

2:00 PM. The U.S. Court of Appeals (FedCir), Panel C, will hear oral argument in Evident Corp. v. Church & Dwight Co. (No. 03-1541) and Lewis v. Agriculture Facilities (No. 04-1255). See, FedCir calendar. Location: Courtroom 402, 717 Madison Place, NW.

Deadline to submit comments to the National Institute of Standards and Technology (NIST) regarding the first draft of NIST Special Publication 800-52 [33 pages in PDF], titled "Guidelines on the Selection and Use of Transport Layer Security". Submit comments and questions to Matthew Fanto at matthew.fanto@nist.gov.

Deadline to submit comments to the National Institute of Standards and Technology (NIST) regarding the second public draft of NIST Special Publication 800-53 [94 pages in PDF], titled "Recommended Security Controls for Federal Information Systems". Submit comments and sec-cert@nist.gov.

General Election Day.

10:00 AM. The U.S. Court of Appeals (FedCir), Panel D, will hear oral argument in IEX Corp. v. Blue Pumpkin Software (No. 04-1068) and Postx Corp. v. Secure Data (No. 04-1257). See, FedCir calendar. Location: Courtroom 402, 717 Madison Place, NW.

10:00 AM. The U.S. Court of Appeals (FedCir), Panel E, will hear oral argument in Ishida Co. v. Taylor (No. 04-1102) and Lawman Armor v. Master Lock (No. 04-1276). See, FedCir calendar. Location: Courtroom 203, 717 Madison Place, NW.

2:00 PM. The U.S. Court of Appeals (FedCir), Panel F, will hear oral argument in Commissariat v. Chi Mei Optoelecton (No. 04-1139) and Howmedica v. Tranquil Prospect (No. 04-1302). See, FedCir calendar. Location: Courtroom 402, 717 Madison Place, NW.

Rescheduled date for the Federal Communications Commission's (FCC) Auction No. 37, pertaining to FM broadcast construction permits. See, notice in the Federal Register, July 16, 2004, Vol. 69, No. 136, at Pages 42729 - 42742.

10:00 AM. The U.S. Court of Appeals (FedCir), Panel G, will hear oral argument in Purdue Pharmaceutical v. Endo Pharmaceutical (No. 04-1189) and Transonic Systems v. Fresenius USA (No. 04-1439). See, FedCir calendar. Location: Courtroom 402, 717 Madison Place, NW.

10:00 AM. The U.S. Court of Appeals (FedCir), Panel H, will hear oral argument in Anheuser Busch v. Crown Cork & Seal (No. 04-1185). See, FedCir calendar. Location: Courtroom 203, 717 Madison Place, NW.

12:15 PM. The Federal Communications Bar Association's (FCBA) Common Carrier Practice Committee will host a brown bag lunch. The topic will be "Intercarrier Compensation Reform -- Where Is It Headed?". The speakers will be Steve Morris (Deputy Division Chief of the FCC's Wireline Competition Bureau's Pricing Policy Division), Ken Pfister (Great Plains Communications), and Rich Rindler (Swidler Berlin), and others. RSVP to Cecilia Burnet at cmburnett@hhlaw.com or 202 637-8312 by October 29. Location: Hogan & Hartson, 555 13th Street, NW, Litigation Center Conference Room.

2:00 PM. The U.S. Court of Appeals (FedCir), Panel I, will hear oral argument in Bayer AG v. Housey Pharmaceuticals (No. 04-1194). See, FedCir calendar. Location: Courtroom 402, 717 Madison Place, NW.

6:00 - 8:15 PM. The DC Bar Association will host a continuing legal education (CLE) program titled "Ten Ways to Protect Intellectual Property When Drafting E-Commerce Agreements". The speaker will be Walter Effross (American University law school). See, notice. Prices vary from $70 to $115. For more information, call 202 626-3488. Location: D.C. Bar Conference Center, B-1 Level, 1250 H Street, NW.

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

8:30 AM - 12:15 PM The Federal Communications Bar Association's (FCBA) Engineering and Technical Practice Committee will host an event titled "Tour of the FCC's Engineering and Technology Laboratory". The program includes transportation to and from the FCC, and lunch with FCC lab personnel in Columbia, MD. The price is $45. RSVP to Heidi Kurtz at 202-293-4000 or heidi@fcba.org. Registrations, payments and cancellations are due no later than Friday, October 29, 2004..

8:30 AM - 12:30 PM. The North American Numbering Council (NANC) will meet. See, FCC notice [PDF]. Location: FCC, Room TWC305, 445 12th, SW.

8:30 - 11:30 AM. The Software and Information Industry Association (SIIA) will host a seminar titled "Software Licensing Best Practices Seminar Series: Licensing to Uncle Sam: How it Impacts Software License Agreements". See, notice. Prices vary. Location: Mintz Levin, 12010 Sunset Hills Road, Suite 900 Reston, VA.

10:00 AM. The U.S. Court of Appeals (FedCir), Panel J, will hear oral argument in Corus Staal BV v. Commerce (No. 04-1107) and Taghulk Proprietary v. Service Corp. (No. 04-1201). See, FedCir calendar. Location: Courtroom 402, 717 Madison Place, NW.

10:00 AM. The U.S. Court of Appeals (FedCir), Panel K, will hear oral argument in Freeman v. Gerber Products (No. 04-1203). See, FedCir calendar. Location: Courtroom 203, 717 Madison Place, NW.

4:00 PM. Julie Cohen (Georgetown University Law Center) will present a paper titled "Copyright, Commodification, and Culture: Locating the Public Domain" at an event hosted by the Dean Dinwoodey Center for Intellectual Property Studies at the George Washington University Law School (GWULS). For more information, contact Robert Brauneis at 202 994-6138 or rbraun@law.gwu.edu. The event is free and open to the public. See, notice. Location: GWULS, Faculty Conference Center, Burns Building, 5th Floor, 716 20th St., NW.

Deadline to submit comments to the Department of Homeland Security's (DHS) Bureau of Customs and Border Protection (CBP) in its rulemaking proceeding regarding recordation of copyrights and enforcement procedures to prevent the importation of piratical articles. See, notice in the Federal Register, October 5, 2004, Vol. 69, No. 192, at Pages 59562 - 59569. See also, story titled "Bureau of Customs and Border Protection Conducts DMCA Rulemaking" in TLJ Daily E-Mail Alert No. 998, October 18, 2004.

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