12/11. Carlos Gutierrez, Secretary of Commerce, sent a letter [2 pages in PDF] on December 10, 2008, on behalf of the Bush administration to Kevin Martin, Chairman of the Federal Communications Commission (FCC), and the four other FCC Commissioners, expressing opposition to the FCC's possible plans to auction spectrum in the AWS-3 band.

Martin announced at a news conference on December 3, 2008, that he wants the FCC to adopt rules at a meeting on December 18, 2008, that will enable the auctioning of the advanced wireless services (AWS) spectrum band at 2155-2180 MHz, which is also known as AWS-3. See, story titled "Martin Wants FCC to Adopt Free Wireless Broadband Order" in TLJ Daily E-Mail Alert No. 1,867, December 4, 2008.

Martin announced then that he wants the FCC to adopt a Report and Order (R&O) and Order on Reconsideration (OR) that addresses "service rules for fixed and mobile services, including advanced wireless services (AWS), in the 2155-2180 MHz band (AWS-3)".

Martin's goal is to auction this band to a single nationwide licensee, which would then be required to provide a basic level of free wireless broadband service. At least 25% of capacity would be devoted to the free basic service. The rest would be used for fee based service.

However, as a practical matter, there is only one company that is pursuing such a business model, and that has been lobbying for these rules -- M2Z Networks.

Gutierrez (at right) wrote that "I understand that the draft AWS-3 order would constrain a provider's use of this spectrum, favoring a particular business model and potentially precluding the spectrum from allocation to the most valuable use. In particular, one mandate would require that the licensee provide free broadband services at government-mandated speeds. This mandate would likely lead to congested and inefficiently used broadband, and it would be inconsistent with the Administration's view that spectrum should be allocated by markets rather than governments."

He continued that "The history of FCC spectrum auctions has shown that the potential for problems increases in instances where licensing is overly prescriptive or designed around unproven business models. In contrast, open and highly competitive auction processes have supported both greatly expanded broadband services and the taxpayers' interests in spectrum license allocation. Moreover, a government-mandated free nationwide network is not the most effective or efficient way to assist underserved areas."

Gutierrez concluded that "The Administration believes that the AWS-3 spectrum should be auctioned without price or product mandates. The FCC should rely on market forces to determine the best use of spectrum, subject to appropriate government rules to prevent harmful interference."

The FCC has published in its web site numerous notices of recent ex parte communications with the FCC regarding this proceeding.

The CTIA submitted a notice [PDF] in which it stated that it continues to advocate "fair, open auctions with flexible service rules that do not mandate a particular business model and internationally harmonized technical rules that protect adjacent licensees from service degrading interference".

MetroPCS submitted a comment [PDF] on December 11, 2008, in which it argued that it "has substantial concerns about the proposed AWS-3 ``designer´´ allocation, which includes a mandate for supposedly ``free´´ wireless broadband service subject to a series of ill-conceived, vague and ambiguous government-imposed requirements. Recently, this MetroPCS concern has been echoed by the United States Department of Commerce."

It added that the FCC is proposing "service rules ... patterned after the particular business plan of a single prospective bidder -- M2Z Networks". MetroPCS argued that this would violate the FCC's statutory obligation to proscribe "competitive" bidding rules under Section 309(j) of the Communications Act.

Wireless carriers and handset makers submitted a comment [PDF] on December 8, 2008, in which they reiterated their concerns about AWS-3 out of band emission interference with AWS-1 service.

The Free Press, Media Access Project, Consumers Union and Public Knowledge submitted a comment [PDF] on December 11, 2008, supporting the item, but opposing opt out content filtering, and advocating open devices and open network rules similar to those recently imposed by the FCC on the 700 MHz C Block.

The Department of Justice (DOJ) submitted a notice [PDF] that Richard Downing and Mythili Raman of the DOJ's Criminal Division, and Marcus Thomas, Greg Kesner, and Sherry Sabol of the FBI, met with FCC officials on December 8, 2008, to discuss the Communications Assistance for Law Enforcement Act (CALEA). The DOJ did not elaborate. This meeting may have pertained to FBI interception and monitoring of communications in the AWS-3 band.

12/11. The Federal Communications Commission (FCC) issued an agenda [4 pages in PDF] for its event scheduled for December 18, 2008, titled "Open Meeting".

This replaces the document [2 pages in PDF] titled "FCC Announces Tentative Agenda for December 18 Open Meeting" released on December 3, 2008. The just released agenda adds no new items, and deletes no items. However, it provides different details.

See also, stories titled "Martin Discusses FCC Agenda" and "Martin Wants FCC to Adopt Free Wireless Broadband Order" in TLJ Daily E-Mail Alert No. 1,867, December 4, 2008.

The first item on the agenda is adopting rules for the AWS-3 spectrum auction. See also, related story in this issue titled "Gutierrez Opposes Martin's Plans for AWS-3 Band".

The FCC's just released agenda states that the FCC will adopt a Report and Order (R&O) and Order on Reconsideration (OR) regarding "application, licensing, operating, and technical rules for the 2155-2180 MHz Band", an OR regarding petitions for reconsideration filed in WT Dockets Nos. 07-16 and 07-30, and a Further Notice of Proposed Rulemaking for the 2155-2180 MHz band.

The FCC's agenda states that it will adopt a 2nd R&O regarding E911 location tracking mandates. This proceeding is PS Docket No. 07-114.

The FCC's agenda states that it will adopt a R&O and 2nd R&O regarding proposed revisions to the service rules for mobile, fixed and base stations in the Wireless Communications Service (WCS), and proposed service rules for terrestrial repeaters to be used in conjunction with the Satellite Digital Audio Radio Service (SDARS).

The FCC's agenda states that it will adopt a NPRM and Order regarding  Wireless Radio Services (WRS) renewals.

The FCC's agenda states that it will adopt a NPRM regarding the creation of a replacement digital television translator service.

The FCC's agenda states that it will adopt a R&O modifying the program carriage rules and procedures and a FNPRM seeking comment on the practices of programmers and broadcasters.

The FCC's agenda states that it will adopt an omnibus Notice of Apparent Liabilty (NAL) that fines companies for apparent violations of the FCC's DTV consumer education requirements. This agenda still does not identify the companies.

This event may be held at 10:00 AM on Thursday, December 18, 2008, in the FCC's Commission Meeting Room, Room TW-C305, 445 12th Street, SW. Most of the FCC's recent events titled "Open Meeting" have either not been held, or not been held at the time announced by the FCC. The FCC may adopt some of these items beforehand. The FCC may remove items without adopting them. The FCC may postpone consideration of some of these items. The FCC sometimes adds items to the list without providing the "one week" notice required 5 U.S.C. § 552b. The FCC usually does not release at its events copies of the items that it adopts at its events.

12/10. The Department of Justice (DOJ) and Federal Trade Commission (FTC) filed a civil complaint [11 pages in PDF] in the U.S. District Court (SDNY) against Sony BMG Music Entertainment alleging violation of the Children's Online Privacy Protection Act (COPPA) and the FTC's COPPA rules, in connection with its operation of web sites that collect personal information from children under the age of 13.

The FTC stated in a release that "Sony Music requires users to submit a broad range of personal information, together with date of birth, in order to register for these sites. On 196 of these sites, Sony Music knowingly collected personal information from at least 30,000 underage children without first obtaining their parents' consent, in violation of COPPA".

The COPPA, which is codified at 15 U.S.C. §§ 6501-6506, provides that "It is unlawful for an operator of a website or online service directed to children, or any operator that has actual knowledge that it is collecting personal information from a child, to collect personal information from a child ..."

The DOJ/FTC and Sony BMG simultaneously entered into a consent decree [13 pages in PDF] that enjoins Sony BMG from further violation of the COPPA, and fines Sony BMG $1 Million.

This case is U.S.A. v. Sony BMG Music Entertainment, U.S. District Court for the Southern District of New York, D.C. No. 09-CV-10730 (LAK).

12/11. The Information Technology and Innovation Foundation (ITIF) released a report [58 pages in PDF; 5 MB] titled "A Policymaker's Guide to Network Management". The author is the ITIF's George Ou.

This report states that "Unfortunately, network management solutions have come under heavy criticism from many advocates of "net neutrality." The issue of network management came to the fore when Comcast limited the ability of peer-to-peer (P2P) users to operate in upload-only mode whenever P2P traffic exceeded 50 percent of total upstream capacity of the entire neighborhood."

It argues that "Many if not most of the fears of the proponents of net neutrality stem from a lack of understanding of the history of the Internet, the economics of the ISP industry, and the science of network engineering."

This report recommends that "Legislation and regulations should not limit efforts by ISPs to fairly use network management to overcome technical challenges and maintain a high quality Internet service for their customers", but that "The federal government has a key role to ensure openness and fair play on the Internet."

12/11. Federal Communications Commission (FCC) Commissioner Deborah Tate gave a speech [7 pages in PDF] to the Family Online Safety Institute.

12/11. The U.S. District Court (DSC) sentenced Cynthia K. Ayer to serve two years in prison following her previous plea of guilty to mail fraud in connection with her submitting false claims for subsidies under the Federal Communications Commission's (FCC) e-rate subsidy program. See, Department of Justice (DOJ) release.

12/11. The Federal Communications Commission (FCC) published a notice in the Federal Register, and a Public Notice [PDF], that set inconsistent comment deadlines for its Second Further Notice of Proposed Rule Making (2ndFNPRM) regarding rules to protect AM stations from the potential effects of nearby tower construction. The deadline for initial comments is January 12, 2009. The Federal Register notice states that reply comments are due by February 9, 2009, while the Public Notice states that reply comments are due by February 11, 2009. FCC staff told TLJ that February 9 is the correct reply deadline, and that an erratum will issue. The FCC adopted this 2ndFNPRM on September 24, 2008, and released the text [28 pages in PDF] on September 26, 2008. It is FCC 08-228 in MM Docket No. 93-177. See, Federal Register, December 11, 2008, Vol. 73, No. 239, at Pages 75376-75381, and Public Notice No. DA 08-2688.

12/10. The U.S. Patent and Trademark Office (USPTO) published a notice in the Federal Register that announces that it has extended to an undetermined date the effective date of its final rule that amends the rules governing practice before the Board of Patent Appeals and Interferences (BPAI) in ex parte patent appeals. The rule was to have taken effect on December 10, 2008. The reason for the extension is that proposed information collection is still under review of the Office of Management and Budget (OMB). See, Federal Register, December 10, 2008, Vol. 73, No. 238, at Page 74972. See also, original notice in the Federal Register, June 10, 2008, Vol. 73, No. 112, at Pages 32937-32977.

12/9. The World Trade Organization's (WTO) Committee on Government Procurement adopted a decision that invites Taiwan to accede to the WTO Government Procurement Agreement. This agreement currently has about 40 members, including the U.S., the European Communities and members states, Japan, Korea, Canada, and other nations. See, WTO release and statement by the U.S. Trade Representative Susan Schwab.

12/9. The National Telecommunications and Information Administration
(NTIA) published a notice in the Federal Register that announces a new closing date for certain digital television Distributed Transmission System (DTS) projects: 5:00 PM on May 18, 2009. The NTIA notice states that this new closing date "is designed to accommodate a new policy issued by the Federal Communications Commission after NTIA published the original Closing Date notice in the Federal Register. The Closing Date for receipt of all other Public Telecommunications Facilities Program (PTFP) applications remains Thursday, December 18, 2008." See, Federal Register, December 9, 2008, Vol. 73, No. 237, at Page 74709. See also, the NTIA's original notice in the Federal Register, October 20, 2008, Vol. 73, No. 203, at Pages 62258-62259. And see, the FCC's DTS Report and Order [56 pages in PDF]. The FCC adopted this item on November 3, 2008, and released it on November 7, 2008. It is FCC 08-256 in MB Docket No. 05-312.

12/9. The Department of Education published a notice in the Federal Register that announces, describes, recites, and sets the effective date (January 8, 2009) for, its rules regarding disclosures without consent of personally identifiable information from education records. See, Federal Register, December 9, 2008, Vol. 73, No. 237, at Pages 74805-74855.

12/8. Federal Communications Commission (FCC) Commissioner Deborah Tate gave a speech [18 pages in PDF] at Georgetown University in which she touched on numerous topics, including regulation, protecting children online, broadband regulation, FCC subsidies for rural health care clinics, TV white space, universal service taxes and subsidies, piracy of digital media, the role of network management in limiting piracy, and the DTV transition.

This issue contains the following items:
 • Gutierrez Opposes Martin's Plans for AWS-3 Band
 • FCC Releases December 18 Meeting Agenda
 • DOJ and FTC Fine Sony BMG $1,000,000 for COPPA Violations
 • ITIF Releases Report on Broadband Network Management Practices

The House will not meet. It has adjourned until January 3, 2009, subject to recall by the Speaker of the House. See, HConRes 440.

The Senate will meet in pro forma session only.

Deadline to submit comments to the Office of the U.S. Trade Representative (OUSTR) regarding the People's Republic of China's (PRC) complaint to the World Trade Organization (WTO) regarding Department of Commerce (DOC) anti-dumping and countervailing duty determinations and orders affecting imports from the PRC of steel pipe, tires, and other products. See, notice in the Federal Register, November 13, 2008, Vol. 73, No. 220, at Pages 67214-67215. In other WTO proceedings, the U.S., Japan, Taiwan, and other nations have complained to the WTO about the PRC's failure to protect intellectual property rights. See, story titled "US to Complain to WTO Regarding PR China's Failure to Protect IPR" in TLJ Daily E-Mail Alert No. 1,562, April 9, 2007, and story titled "US Requests WTO Dispute Settlement Panel Re PRC Failure to Protect IPR" in TLJ Daily E-Mail Alert No. 1,623, August 15, 2008. See also, the WTO's web page for DS362 and web page for DS363.

Deadline to submit comments to the National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) regarding draft FIPS-186-3 [125 pages in PDF] titled "Digital Signature Standard (DSS)". See also, notice in the Federal Register, November 12, 2008, Vol. 73, No. 219, at Pages 66842-66844.

Deadline to submit nominations to the National Telecommunications and Information Administration (NTIA) for members of the NTIA's Online Safety and Technology Working Group (OSTWG) for a fifteen month term to commence in January of 2009. See, notice in the Federal Register, November 21, 2008, Vol. 73, No. 226, at Pages 70624-70625. See also, story titled "NTIA Seeks Members for Online Safety and Technology Working Group" in TLJ Daily E-Mail Alert No. 1,863, November 25, 2008.

9:00 AM - 1:00 PM. The U.S. Patent and Trademark Office's (USPTO) National Medal of Technology and Innovation Nomination Evaluation Committee will hold a closed meeting. See, notice in the Federal Register, November 28, 2008, Vol. 73, No. 230, at Page 72453. Location: USPTO, 600 Dulany St., Alexandria, VA.

2:00 - 3:15 PM. The National Governors Association (NGA) and Alliance for Public Technology (APT) will webcast an event titled "State Efforts to Expand Broadband Access". The speakers will be Michael Ramage (Connected Tennessee) and Karen Jackson (state of Virginia). See, notice.

Deadline to submit comments to the National Science Foundation's (NSF) National Coordination Office for Networking Information Technology Research and Development in response to its Request for Information (RFI) regarding "promising game-changing ideas with the potential to reduce vulnerabilities to cyber exploitations by altering the cybersecurity landscape". See, notice in the Federal Register, October 14, 2008, Vol. 73, No. 199, at Pages 60724-60726.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Notice of Inquiry (NOI) regarding management and oversight of the Universal Service Fund (USF). The FCC adopted this NOI on August 15, 2008 and released the text [17 pages in PDF] on September 12, 2008. It is FCC 08-189 in WC Docket No. 05-195. See, notice in the Federal Register, October 14, 2008, Vol. 73, No. 199, at Pages 60689-60695.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to the Notice of Proposed Rulemaking (NPRM) portion of its Memorandum Opinion and Order (MO&O) and NPRM regarding collecting and reporting of carrier service quality, customer satisfaction, and infrastructure and operating data. The FCC adopted and released this MO&O and NPRM [57 pages in PDF] on September 6, 2008. It is FCC 08-203 in WC Docket No. 08-190. See, notice in the Federal Register, October 15, 2008, Vol. 73, No. 200, at Pages 60997-61006. See also, story titled "FCC Grants Carriers Forbearance From ARMIS Reporting Rules" in TLJ Daily E-Mail Alert No. 1,822, September 8, 2008.

Deadline to submit initial comments to the Federal Communications Commission (FCC) regarding the National Telecommunications and Information Administration's (NTIA) petition for rulemaking [16 pages in PDF] requesting amendments to Part 87 of the FCC's Rules to allow use of the frequency 1090 MHz for runway vehicle identification and collision avoidance. See, Public Notice [3 pages in PDF]. This item is DA 08-2502 in RM 11503.

10:00 AM - 5:00 PM. The National Science Foundation's (NSF) Advisory Committee for Cyberinfrastructure will meet. See, notice in the Federal Register, November 13, 2008, Vol. 73, No. 220, at Page 67212. Location: NSF, Room 1235, 4201 Wilson Blvd., Arlington, VA.

12:00 - 1:30 PM. The DC Bar Association (DCBA) will host a panel discussion titled "CFIUS and FINSA: Comparisons With Other Countries' Investment Review Mechanisms". The speakers will be Johann Leaman (Department of Treasury), Michael Snarr (Baker Hostetler), Stephen Canner (U.S. Council for International Business), Matthew Edwards ( Department of Commerce). The price to attend ranges from $10 to $30. For more information, contact 202-626-3463. See, notice. The DCBA has a record of excluding persons from its events. Location: DC Bar Conference Center, B-1 Level, 1250 H St., NW.

12:30 - 2:00 PM. The Federal Communications Bar Association's (FCBA) International Telecommunications Practice Committee will host a brown bag lunch titled "Results of the 2008 Internet Governance Forum (IGF) in India and End of the Presidential Administration Telecoms Issues". The speaker will be David Gross (Department of State). For more information, contact Susan O'Connell at susan dot o'connell at fcc dot gov or Troy Tanner at troy dot tanner at bingham dot com. RSVP by December 12 to Jennifer Ullman at Jennifer dot ullman at verizon dot com. Location: Verizon, 5th floor, Suite 400 West, 1300 I St., NW.

Deadline to submit to the Federal Communications Commission (FCC) oppositions to the petition for reconsideration [PDF] filed on November 17, 2008, by the National Association of Broadcasters (NAB) and the Association for Maximum Service Television in the FCC's proceeding titled "In the Matter of Carriage of Digital Television Broadcast Signals: Amendment to Part 76 of the Commission's Rules" and numbered CS Docket No. 98-120. See, notice in the Federal Register, December 2, 2008, Vol. 73, No. 232, at Page 73327.

9:00 - 10:30 AM. The Information Technology and Innovation Foundation (ITIF) will host a panel discussion titled "Complex Economies & Simple Economics: How New Research Is Challenging Conventional Economic Policy". The speakers will be Rob Atkinson (ITIF), Marc Berejka (Microsoft), Rick Whitt (Google), and Robert Axtell (George Mason University). A light breakfast will be served. Location: ITIF, Suite 200, 1250 Eye St., NW.

12:15 - 1:30 PM. The Federal Communications Bar Association's (FCBA) Young Lawyers Committee will host a brown bag lunch for planning purposes. For more information, contact Tarah Grant at tsgrant hhlaw dot com or 703-610-6155 or Cathy Hilke at chilke at wileyrein dot com or 202-719-7418. RSVP to Christy Hammond at chammond at wileyrein dot com. Location: Wiley Rein, 10 East Conference Center, 1750 K St., NW.

Effective date of the U.S. Patent and Trademark Office's (USPTO) new rules governing the conduct of individuals registered to practice before the USPTO. These new rules include an annual patent practitioner maintenance fee. See, notice in the Federal Register, November 17, 2008, Vol. 73, No. 222, at Pages 67750-67759.

? 10:00 AM. The Federal Communications Commission (FCC) may hold a meeting. See, possible agenda [PDF]. See also, stories titled "Martin Wants FCC to Adopt Free Wireless Broadband Order" and "Martin Discusses FCC Agenda" in TLJ Daily E-Mail Alert No. 1,867, December 4, 2008, and story titled "FCC Releases December 18 Meeting Agenda" in TLJ Daily E-Mail Alert No. 1,872, December 12, 2008. Location: FCC, Commission Meeting Room, 445 12th St., SW.

5:00 PM. Deadline to submit to the National Telecommunications and Information Administration (NTIA) certain applications for planning and construction grants for public telecommunications facilities under the Public Telecommunications Facilities Program (PTFP). See, original notice in the Federal Register, October 20, 2008, Vol. 73, No. 203, at Pages 62258-62259; further notice in the Federal Register, December 9, 2008, Vol. 73, No. 237, at Page 74709; and the FCC's DTS Report and Order [56 pages in PDF], adopted on November 3, 2008, and released on November 7, 2008, FCC 08-256 in MB Docket No. 05-312.

Deadline to submit comments to the National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) regarding draft SP 800-102 [30 pages in PDF] titled "Recommendation for Digital Signature Timeliness".

Extended deadline to submit nominations to the Federal Communications Commission's (FCC) Wireline Competition Bureau (WCB) for six different positions on the Board of Directors of the Universal Service Administrative Company (USAC). See, original FCC notice [PDF] and FCC notice of extension. These items are DA 08-2487 and DA 08-2651 in CC Docket Nos. 96-45 and 97-21.

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