8/29. The U.S. District Court (DC) issued its opinion [9 pages in PDF] in Nextel Spectrum Acquisition Corporation v. Hispanic Information and Telecommunications Network, a contract dispute concerning spectrum usage rights in unused spectrum in the 2.5 GHz band. The District Court dismissed Nextel's complaint. This is also a victory for Clearwire, although it is not a party to this case.

The Hispanic Information and Telecommunications Network (HITN) holds spectrum usage rights in the Washington DC area in the 2.5 GHz band.

Clearwire is a provider of broadband wireless internet access service founded and chaired by Craig McCaw. Clearwire reported in a August 6, 2007, release that it has a total subscriber base to 299,000. However, it does not now provide service in the Washington DC area. It wants to do so, by leasing spectrum from the HITN.

Clearwire and the HITN entered into an agreement on October 4, 2006, for this purpose. And, the Court noted that the HITN has been well compensated in cash and stock.

However, Nextel Spectrum Acquisition Corporation (Nextel SAC) also had a contract with the HITN regarding this spectrum.

Actually, both the HITN and Nextel are successors in interest to the original parties to the contract. The following is a brief history. The Federal Communications Commission (FCC) gave a license to the George Washington University (GWU) to construct and operate an Instructional Television Fixed Service (ITFS) station over the Educational Broadband Service (EBS) in the 2.5 Ghz band. This license permitted the GWU to lease excess capacity to others. On February 21, 1995, the GWU and Eastern Cable Networks Corp. (ECNC or ENET) entered into an agreement under which the GWU leased excess capacity to the ECNC for an initial term of 1995 to 1998, subject to automatic annual renewal for a ten year period. This ten year period expired in February of 2007. This agreement also included a further two year right of first refusal provision that is at issue in this lawsuit. The HITN now is the successor in interest of the GWU. Nextel SAC is now the successor in interest of the ECNC.

Nextel SAC asserts that while the term of the contract has expired, its right of first refusal was still effective, and breached, at the time of the October 2006 agreement between Clearwire and the HITN.

The spectrum at the center of this litigation is not being used. It is fallow. Sprint and Nextel merged in 2005. (See, FCC order [PDF] of August 8, 2005, approving the merger.) Sprint now provides wireless broadband service in the Washington DC area. The District Court wrote that Nextel SAC "has never used any of the contested spectrum for actual broadcasting and it lies fallow even yet", and that its interest has been "to control the asset in an extremely competitive market".

Nextel SAC filed one count complaint in the courts of the District of Columbia against the HITN alleging breach of contract. The HITN removed the action to the U.S. District Court (DC). The HITN then moved to dismiss the complaint.

In short, the District Court held for the HITN, and dismissed the complaint pursuant to Rule 12(b)(6) for failure to state a claim upon which relief can be granted.

The contract between GWU and the ECNC provides that the ECNC (and then Nextel SAC) "shall have the exclusive right to match the material terms and conditions of any bona fide offer to lease excess capacity from the University during any or all of the period from the expiration of the automatic renewal term ... through two years thereafter".

The ten year term of the contract expired on February 21, 2005. The HITN Clearwire contract came within "two years thereafter". But, the Court reasoned, they did not enter into an agreement to lease excess capacity that would commence within the two year period of the right of first refusal. Rather, they agreed that Clearwire has an option to acquire HITN spectrum when it becomes available. The agreement further defined the term available to mean "not encumbered by any ... right of first refusal".

It concluded that the "HITN did not negotiate with a third party to lease excess capacity for any period between February 21, 2005, and February 21, 2007." Therefore, Nextel SAC's right of first refusal "was never triggered."

This case is Nextel Spectrum Acquisition Corporation v. Hispanic Information and Telecommunications Network, Inc., U.S. District Court for the District of Columbia, D.C. No. 07-543 (RMC), Judge Rosemary Collyer presiding.

8/29. The Federal Communications Commission (FCC) released a Report and Order [46 pages in PDF] regarding its waste, fraud and abuse plagued e-rate tax and subsidy program, and other universal service programs. In this item the FCC promises to "strengthen oversight".

This item addresses enforcement of tax collection from telecommunications carriers and voice over internet protocol service providers.

First, it amends FCC rules to increase penalties for late payments and late filing.

Second, this item amends FCC rules to increase the record keeping burdens on taxed entities, as well as their contractors and consultants.

It adds the following requirement: "Any entity required to contribute to the federal universal service support mechanisms shall retain, for at least five years from the date of the contribution, all records that may be required to demonstrate to auditors that the contributions made were in compliance with the Commission’s universal service rules. These records shall include without limitation the following: financial statements and supporting documentation; accounting records; historical customer records; general ledgers; and any other relevant documentation. This document retention requirement also applies to any contractor or consultant working on behalf of the contributor."

This item also addresses subsidy fraud. First, it amends FCC rules to extend the debarment rules, which previously only applied to the e-rate program, to also apply to high cost, low income, and rural healthcare programs.

This item also amends FCC rules to increase the record keeping requirements of subsidized entities. For example, for the high cost program, it provides that "All eligible telecommunications carriers shall retain all records required to demonstrate to auditors that the support received was consistent with the universal service high-cost program rules."

This item retains the requirement that schools and libraries and rural health care providers retain for five years their records evidencing that the funding they received was proper. It adds that this requirement extends to services providers, both with respect to schools and libraries and rural health care providers.

This item also states that "there is nearly 100 percent connectivity for public schools", and that "97 percent of the public schools with Internet access used broadband connections to access the Internet".

None of the five Commissioners wrote statements for this item.

This item is FCC 07-150 in WC Docket No. 05-195, CC Docket No. 96-45, CC Docket No. 02-6, WC Docket No. 02-60, WC Docket No. 03-109, and CC Docket No. 97-21.

8/29. Sen. Mark Pryor (D-AR) chaired a field hearing of the Senate Commerce Committee (SCC) in Little Rock, Arkansas, titled "State of Broadband in Arkansas". Federal Communications Commission (FCC) Commissioners Michael Copps and Jonathan Adelstein testified. See, Copps' prepared testimony [3 pages in PDF] and Adelstein's prepared testimony [8 pages in PDF].

Copps wrote that "we need a Universal Service Fund that has broadband as its core mission". He said that "we need to embrace all kinds of solutions", and that this "might include tax incentives, more Rural Utilities Service loans".

Adelstein wrote that "We need to make broadband the dial-tone of the 21st Century."

He also discussed policy areas outside of the authority of the FCC. He advocated "providing adequate funding for Rural Utilities Service broadband loans and grants, and establishing new grant programs supporting public-private partnerships that can identify strategies to spur deployment; ensuring RUS properly targets those funds; providing tax incentives for companies that invest in broadband to underserved areas; devising better depreciation rules for capital investments in targeted telecommunications services; investing in basic science research and development to spur further innovation in telecommunications technology; and improving math and science education so that we have the human resources to fuel continued growth, innovation and usage of advanced telecommunications services."

He also argued for "a comprehensive broadband communications deployment plan". He added that this includes "a strategy to prevent outsourcing of jobs overseas".

He again advocated network neutrality mandates. "We must also work to preserve the open and neutral character that has been the hallmark of the Internet".

Also, he discussed the upcoming 700 MHz auction, unlicensed spectrum, and the 3650 MHz band, and the 70/80/90 GHz band.

8/28. The Department of Homeland Security (DHS) announced the selection of numerous new members of its Homeland Security Advisory Council (HSAC), and the HSAC's State and Local Officials Senior Advisory Committee, Private Sector Senior Advisory Committee, Emergency Response Senior Advisory Committee, and Secure Borders and Open Doors Advisory Committee. The DHS's release lists these new members.

8/29. Jocelyne Gray was named the Department of Homeland Security's (DHS) White House Liaison. See, DHS release.

8/27. Thomas Collamore was named SVP for Communications and Strategy and Counselor to the President of the U.S. Chamber of Commerce. He previously worked for former Sen. Fred Thompson (R-TN). See, U.S. Chamber release.

8/29. The National Archives and Records Administration (NARA) published a notice in the Federal Register that announces the renewal of its Advisory Committee on Electronic Records Archives (ACERA). See, Federal Register, August 28, 2007, Vol. 72, No. 166, at Page 49319.

The House will not meet due to the August District Work Period. See, House 2007 calendar. The House will next meet at 2:00 PM on September 4, 2007.

The Senate will not meet due to the August District Work Period. The Senate will next meet at 1:00 PM on September 4. See, Senate 2007 calendar.

10:30 AM - 1:30 PM. The Center for American Progress (CAP) will host an event titled "FISA: Safeguarding Both Security and Freedom". At 10:30 AM, there will be a panel discussion titled "Bloggers and Online Activists". The speakers will be Spencer Ackerman (TPMmuckraker.com), Nita Chaudhary (MoveOn.org Political Action), Caroline Fredrickson (American Civil Liberties Union), Julian Sanchez (Reason magazine), and Faiz Shakir (CAP). At 11:45 AM, there will be a light lunch. At 12:00 NOON, there will be a panel discussion titled "Restoring Checks and Balances". The speakers will be Mary DeRosa (Chief Counsel for National Security, Senate Judiciary Committee), former Rep. Mickey Edwards (R-OK), Morton Halperin (CAP), Kate Martin (Center for National Security Studies), and Mark Agrast (CAP). See, CAP notice and registration pages. For more information, contact John Neurohr at 202-682-1611 or jneurohr at americanprogress dot org. Location: CAP, 10th Floor, 1333 H St., NW.

Day two of a three day conference hosted by the National Institute of Standards and Technology's (NIST) titled "Performance Metrics for Intelligent Systems (PerMIS) Workshop". See, notice. Location: Courtyard Gaithersburg Washingtonian Center, 204 Boardwalk Place, Gaithersburg, MD.

Day two of a three day conference hosted by the National Institute of Standards and Technology's (NIST) titled "Performance Metrics for Intelligent Systems (PerMIS) Workshop". See, notice. Location: Courtyard Gaithersburg Washingtonian Center, 204 Boardwalk Place, Gaithersburg, MD.

Extended deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) regarding rule changes related to the DTV transition. The FCC adopted this NPRM on April 25, 2007, and released the text [93 pages in PDF] on May 18, 2007. It is FCC 07-70 in MB Docket No. 07-91. See, notice in the Federal Register, July 9, 2007, Vol. 72, No. 130, at Pages 37309-37344, and Public Notice [PDF] (DA 07-3518) extending deadlines.

1:00 PM. The U.S. Chamber of Commerce will host an event titled "press briefing on the upcoming Asia-Pacific Economic Cooperation (APEC) meetings and the broader trade agenda". Press contact: press at uschamber dot com or 202-463-5682. Location: U.S. Chamber, 1615 H St., NW.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response its Public Notice [32 pages in PDF] regarding the competitive bidding procedures for the 700 MHz band auction. The FCC released the Public Notice on August 17, 2007. It is DA 07-3415 in AU Docket No. 07-157. This auction is Auction No. 73. It is scheduled to commence on January 16, 2008. See, notice in the Federal Register, August 23, 2007, Vol. 72, No. 163, at Pages 48272-48285. See also, story titled "FCC Adopts 700 MHz Band Order" in TLJ Daily E-Mail Alert No. 1,619, July 31, 2007, and story titled "FCC Sets Date for 700 MHz Auction" in TLJ Daily E-Mail Alert No. 1,624, August, 20, 2007.

Deadline to submit Form 477, titled "Local Telephone Competition and Broadband Reporting", to the Federal Communications Commission (FCC). See, Form 477 [MS Excel] and FCC document [17 pages in PDF] titled "Instructions for Local Telephone Competition and Broadband Reporting Form (FCC Form 477)".

Deadline to submit nominations to the U.S. Patent and Trademark Office (USPTO) for membership on the Patent Public Advisory Committee (PPAC) or Trademark Public Advisory Committee (TPAC). See, notice in the Federal Register, June 20, 2007, Vol. 72, No. 118, at Pages 33981-33982.

Labor Day. The Federal Communications Commission (FCC) and other federal offices will be closed. See, Office of Personnel Management's (OPM) list of federal holidays and 5 U.S.C. § 6103. The National Press Club will be closed.

5:00 PM. Deadline to submit prepared testimony to the Department of Commerce's (DOC) Bureau of Industry and Security's (BIS) Deemed Export Advisory Committee (DEAC) for the DEAC's meeting of September 10, 2007. See, notice in the Federal Register, August 16, 2007, Vol. 72, No. 158, at Page 46035.

The House will return from its August recess at 2:00 PM. See, House 2007 calendar.

The Senate will return from its August recess at 1:00 PM. It will begin consideration of HR 2642 [LOC | WW], the Military Construction and Veterans Affairs Appropriations bill, Fiscal Year 2008. See, Senate 2007 calendar.

9:00 AM - 5:00 PM. Day one of a three day meeting of the Architectural and Transportation Barriers Compliance Board's (ATBCB) Telecommunications and Electronic and Information Technology Advisory Committee (TEITAC). Section 508 of the Rehabilitation Act of 1973, as amended, provides at 29 U.S.C. § 794d that each federal agency "developing, procuring, maintaining, or using electronic and information technology" must provide comparable access to disabled federal employees, and to disabled members of the public who have access to and use of information and data of that agency; it further provides that each agency must comply with disability access regulations written by the ATBCB. See, notice in the Federal Register, August 23, 2007, Vol. 72, No. 163, at Pages 48252-48253. For more information, contact Timothy Creagan at 202-272-0016 or creagan at access dash board dot gov. Location: National Science Foundation, Room 555, 4121 Wilson Boulevard, Stafford Place II, Arlington, VA.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Maurice Mitchell Innovations LP v. Intel Corporation, App. Ct. No. 2007-1108, an appeal from the U.S. District Court (EDTex), D.C. No. 2:04-CV-450, a patent case. Location: Courtroom 201, 717 Madison Place, NW.

Deadline to submit comments to the Copyright Office (CO) regarding it interim rules pertaining to online registration of claims to copyright and recording of documents pertaining to copyright. See, notice in the Federal Register, July 6, 2007, Vol. 72, No. 129, at Pages 36883-36889.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) regarding whether to license Vehicle-Mounted Earth Stations as an application of the Fixed-Satellite Service in the conventional and extended Ku-band frequencies. The FCC adopted this NPRM on May 9, 2007 and released the text on May 15, 2007. This item is FCC 07-86 in IB Docket No. 07-101. See, notice in the Federal Register, July 18, 2007, Vol. 72, No. 137, at Pages 39357-39370.

EXTENDED TO SEPTEMBER 11. Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) regarding Section 612 of the Communications Act, which is codified at 47 U.S.C. § 532, which requires cable operators to set aside channel capacity for commercial use by video programmers unaffiliated with the operator, and Section 616 of the Communications Act, which is codified at 47 U.S.C. § 536, which prohibits a cable operator or other multichannel video programming distributor (MVPD) from requiring a financial interest in any program service as a condition for carriage of such service, from coercing a programmer to grant exclusive carriage rights, or from engaging in conduct that unreasonably restrains the ability of an unaffiliated programming vendor to compete fairly by discriminating against such vendor on the basis of affiliation or nonaffiliation. The FCC adopted this item on March 2, 2007, and released the text on June 15, 2007. This NPRM is FCC 07-18 in MB Docket No. 07-42. See, notice in the Federal Register, July 18, 2007, Vol. 72, No. 137, at Pages 39370-39377. See also, Public Notice [PDF] (DA 07-3736) extending comment deadlines.

Deadline to submit comments to the Department of Agriculture's Rural Utilities Service (RUS) regarding its proposed changes to its rules governing its Community Connect Broadband Grant Program. See, notice in the Federal Register, August 3, 2007, Vol. 72, No. 149, at Page 43199.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Digeo, Inc. v. Audible, Inc., App. Ct. No. 2007-1133, an appeal from the U.S. District Court (WDWash), D.C. No. C05-464JLR, a patent case involving digital music. Location: Courtroom 201, 717 Madison Place, NW.

Federal Communications Commission's (FCC) self imposed deadline to conclude its rulemaking and release an order in its video franchising proceeding. See, Report and Order and Further Notice of Proposed Rulemaking [109 pages in PDF], at ¶ 140. This item is FCC 06-180 in MB Docket 05-311. This FNPRM pertains to extending the requirements of the order to incumbent cable operators.

9:00 AM - 5:00 PM. Day two of a three day meeting of the Architectural and Transportation Barriers Compliance Board's (ATBCB) Telecommunications and Electronic and Information Technology Advisory Committee (TEITAC). See, notice in the Federal Register, August 23, 2007, Vol. 72, No. 163, at Pages 48252-48253. For more information, contact Timothy Creagan at 202-272-0016 or creagan at access dash board dot gov. Location: National Science Foundation, Room 555, 4121 Wilson Boulevard, Stafford Place II, Arlington, VA.

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