Bush Signs Port Security Bill

10/13. President Bush signed HR 4954, which has had several titles, including the "Security and Accountability For Every Port Act of 2006" and the "Port Security Improvement Act of 2006". Most of this bill does not relate to information technology. However, this bill includes the "Unlawful Internet Gambling Enforcement Act of 2006" (see, text), and the "Warning, Alert, and Response Network Act", or "WARN Act".

See also, story titled "House and Senate Approve Port Security Bill With Tech Provisions" in TLJ Daily E-Mail Alert No. 1,461, October 4, 2006.

Also, an earlier version of the bill, but not the version approved by the Congress and signed by the President, included the "IP-Enabled Voice Communications and Public Safety Act of 2006". See, story titled "Summary of 911 VOIP Provisions in Senate's Port Security Bill" in TLJ Daily E-Mail Alert No. 1,453, September 20, 2006.

See also, signing statement and speech by President Bush.

FCC Further Delays AT&T BellSouth Merger Decision and NOI on Broadband Industry Practices

10/13. The Federal Communications Commission (FCC) furthered delayed adopting an order in its proceeding on the merger of AT&T and BellSouth.

Last week, the FCC announced that this item was on the agenda for its event titled "Open Meeting" scheduled for Thursday, October 12. The FCC held this event, but postponed its adoption of its AT&T BellSouth order, and its notice of inquiry (NOI) on broadband industry practices, until Friday, October 13, at 11:00 AM.

No Commissioners appeared at 11:00 AM, or thereafter, in the FCC's Commission Meeting Room. Later, FCC Commissioners Jonathan Adelstein and Michael Copps released a letter addressed to FCC Chairman Kevin Martin stating that they wanted the merger item to be postponed, to "allow the applicants to put forth their best proposals, and solicit expeditious public comment".

Just before 2:00 PM, Chairman Martin released a letter in response stating that "this proceeding will be taken off of the Sunshine to give you more time to evaluate the proposals". He added that "I have instructed staff to place these proposals out for public comment for a period of ten days."

Late on Friday, October 13, the FCC released this Public Notice [9 pages in PDF]. See also, following story titled "FCC Releases Public Notice Seeking Comments on AT&T's Proposed Conditions".

Finally, he wrote that "I have scheduled an open meeting of the Commission for November 3rd where we could consider this application again to the extent that the Commission has not completed its review of this transaction before then." (These two letters are set out in full below.)

Exchange of Letters. FCC Commissioners Jonathan Adelstein (at right) and Michael Copps, the two Democrats on the Commission, wrote a letter to FCC Chairman Kevin Martin, dated October 13. The entire body of the letter is quoted below.

"We write to you today to suggest next steps for moving forward with the Commission's review of the pending application for transfer of control filed by AT&T and BellSouth.

The proposed combination of AT&T and BellSouth would create the largest wireline, wireless and broadband company and would represent one of the largest mergers in history. More than ten thousand parties -- including Members of Congress, state officials, rural interests, consumer advocates, competitors, and thousands of individual citizens -- have urged the Commission to conduct a thorough review of this proposed transaction. Thus far, the record raises serious questions about whether this combination as proposed would satisfy the public interest, convenience, and necessity, our standard for review under the Act. Moreover, the Commission's review of this proposed combination is set against a backdrop of rapid consolidation and high levels of market concentration in the telecommunications industry.

Although we have concerns about whether it is appropriate for the Commission to conclude its consideration of this merger while the Federal courts are still reviewing the remedies imposed to address last years' telecommunications mergers, we have worked hard to engage in a dialogue about the concerns raised with respect to this merger and to explore potential ways to mitigate these concerns. We appreciate your efforts to engage in that dialogue and believe that we have made progress to date.

In the last 48 hours, new proposals were made for addressing the concerns raised in this proceeding. These proposals raise a number of significant questions and complex technical issues for us to consider. In light of these developments, we believe that the best way to advance the Commission's review is to open this process to public comment. Such an approach would facilitate a serious examination of the complex issues and proposals. This is particularly appropriate in light of recent concerns raised by interested parties, including the applicants, that they have been unable to engage in an open and transparent dialogue with us and Commission staff during the Sunshine period.

We specifically request that the Commission take this proceeding off of Sunshine, allow the applicants to put forth their best proposals, and solicit expeditious public comment so that we can receive a full record to inform the Commission's decision-making process. Such an approach is even more important because the Department of Justice approved this combination with little substantive analysis and only the day before we were scheduled to vote, making our task much harder. Given the limited analysis from our leading antitrust authorities, it is all the more imperative that we now employ an open process to fully involve all affected parties, including the applicants, in order to get the public and expert review that is otherwise lacking. Such an approach has its grounding in past Commission practices. In previous large ILEC-to-CLEC mergers, the Commission has sought comment on modifications to the applicants' initial public interest filings and even conducted public fora.

Public comment could be handled on an expeditious basis, need not cause unnecessary delay, and could be completed well in advance of the time frames used by the Commission to review other recent mergers. For example, to put this in context, we are still six months ahead of the time it took us to complete the Adelphia-Comcast-Time Warner merger, a transaction less than one-fifth the size of this one."

FCC Chairman Martin (at right) wrote back to Copps and Adelstein in a letter dated October 13. It was released in the Commission Meeting Room just before 2:00 PM. The following is the entire body of the letter.

"Thank you for your letter concerning next steps for moving forward with the Commission's review of the pending application for transfer of control filed by AT&T and BellSouth.

As referenced in your letter, proposals were put forward at your request in order to address concerns you expressed concerning the transaction. In keeping with the Commission's ex parte rules, I understand that the applications will update the record to reflect their efforts to respond to your requests.

Responding to the recommendations you put forth in your letter, this proceeding will be taken off of the Sunshine to give you more time to evaluate the proposals. I note that many of them have previously been filed by other parties and have been commented upon already. In any event, I have instructed staff to place these proposals out for public comment for a period of ten days.

I share your desire to proceed on an expedited basis. To this end, to the extent that you have additional concerns, I trust that you will extend us the courtesy of raising them as soon as possible to avoid any further delay in our consideration of this transaction.

Finally, I have scheduled an open meeting of the Commission for November 3rd where we could consider this application again to the extent that the Commission has not completed its review of this transaction before then.

I too believe that our recent dialogue has been constructive. Thank you for your cooperation."

FCC Procedure. FCC Commissioner Robert McDowell did not appear in the Commission Meeting Room on October 13. Neither he, Chairman Martin, nor anyone else at the FCC, has made a public statement regarding whether or not he is, or will be, recused from participating in the FCC's consideration of the merger of AT&T and BellSouth, on the basis of his work prior to joining the FCC.

On October 11, 2006, the Department of Justice's (DOJ) Antitrust Division announced its approval of AT&T's acquisition of BellSouth, without imposing any conditions. See, DOJ release and story titled "DOJ Approves AT&T BellSouth Merger" in TLJ Daily E-Mail Alert No. 1,466, October 11, 2006.

The FCC's proceedings regarding mergers of large communications and technology companies are nominally proceedings on the transfer of FCC licenses associated with the transactions. Nevertheless, the major substantive consideration of the FCC in these proceedings is its competition analysis. Hence, the FCC's proceedings are largely redundant of those conducted by the DOJ or Federal Trade Commission (FTC), and without express statutory authority.

The FCC is conducting this proceeding in a closed and non-transparent manner. The FCC could hold events that are in the nature of open meetings. It could meet, discuss, debate, hear testimony, draft and adopt an order in an open and transparent manner, including public access to, and webcasting of, the event. However, in this proceeding, as in most of its proceedings, the FCC chooses not to hold an open meeting. Its events titled "open meeting" are largely ceremonial events at which it adopts items that have previously been prepared in a closed and secretive manner. (And, it often adopts items that have not been drafted.) The Commissioners cannot by law meet in secret. However, the Commissioners evade this mandate by using their staff as intermediaries during their secret deliberations.

The exchange of letters on October 13 provide little guidance as to when the FCC will adopt its order in the AT&T BellSouth merger proceeding. However, it will not act for at least ten days. It might adopt an order after ten days, but before the November 3 meeting. It might adopt an order at the November 3 meeting. Or, it might adopt an order after November 3. The FCC might not act until after a sufficient period of time has elapsed to preclude any objection to Commissioner McDowell's participation.

In addition, Chairman Martin will leave the country on Saturday for a previously scheduled one week trip to Japan and the People's Republic of China.

Reaction. Rep. Joe Barton (R-TX), Chairman of the House Commerce Committee (HCC), and Sen. Ted Stevens (R-AK), Chairman of the Senate Commerce Committee (SCC), stated in a joint release that "AT&T and Bellsouth filed an application for transfer of control on March 31, 2006. More than six months have now transpired since that application was filed. The Federal Communications Commission has conducted a thorough review of the pro-competitive benefits presented by AT&T's acquisition of Bellsouth and has a complete record of comments from interested parties. In fact, at least 60 entities filed more than 10,000 initial and almost 600 reply comments."

They continued that "We are concerned by the commission's failure to act on the application this week after such a thorough review and a complete record. We certainly hope that the delays requested by members of the commission are substantive in nature, although the commission has had ample time to debate the merits of AT&T's acquisition of Bellsouth. The commission has a responsibility to act expeditiously on the AT&T-Bellsouth application so that consumers will have an opportunity to reap the benefits that will emanate from a stronger video and broadband provider in Bellsouth's nine-state region."

Gigi Sohn, head of the Public Knowledge, a Washington DC based interest group that advocates network neutrality mandates, stated in a release that "Commissioners Michael Copps and Jonathan Adelstein should be commended for their strong stand protecting consumers by forcing the FCC to delay consideration of the merger of AT&T and BellSouth, as well as the accompanying notice on Net Neutrality."

She added that "This deal and the Net Neutrality issue are too big to be rushed through the Commission, particularly considering that the Justice Department declined to attach any conditions to the merger."

The FCC's proceeding on the AT&T BellSouth merger is WC Docket No. 06-74.

The FCC has not announced a docket number for its yet to be adopted NOI on broadband industry practices.

FCC Releases Public Notice Seeking Comments on AT&T's Proposed Conditions

10/13. The Federal Communications Commission (FCC) released a public notice [PDF] in its proceeding on the merger of AT&T and BellSouth.

It discloses, attaches, and seeks public comments upon, AT&T's letter proposal dated October 13, 2006. All comments are due by October 24, 2006. There is no reply comment period.

AT&T's letter proposal states that "the merger should be approved promptly without any conditions whatsoever", but "we would not object to the imposition of certain merger conditions", with a thirty month sunset, which are enumerated in the letter.

The following are excerpts from the letter. (All footnotes are omitted.)

"AT&T/BellSouth will not provide special access offerings to its wireline affiliates that are not available to other similarly situated special access customers on the same terms and conditions."

"AT&T/BellSouth also will not unreasonably discriminate in favor of its affiliates in establishing the terms and conditions for grooming special access facilities."

"By December 31, 2007, AT&T/BellSouth will offer broadband Internet access service (i.e., Internet access service at speeds in excess of 200 kbps in at least one direction) to 100 percent of the residential living units in the AT&T/BellSouth in-region territory."

"AT&T/BellSouth will provide an ADSL modem without charge (except for shipping and handling) to residential subscribers within the Wireline Buildout Area who, during calendar year 2007, replace their AT&T/BellSouth dial-up Internet access service with AT&T/BellSouth’s ADSL service and elect a term plan for their ADSL service of twelve months or greater."

"The AT&T and BellSouth incumbent LECs shall continue to offer and shall not seek any increase in State-approved rates for UNEs or collocation that are in effect as of the Merger Closing Date."

"Within twelve months of the Merger Closing Date, AT&T/BellSouth will deploy and offer within the BellSouth in-region territory ADSL service to ADSL-capable customers without requiring such customers to also purchase circuit switched voice grade telephone service. AT&T/BellSouth will continue to offer this service in each state for thirty months after the “implementation date” in that state."

"AT&T/BellSouth will offer to Internet service providers, for their provision of broadband Internet access service to ADSL-capable retail customer premises, ADSL transmission service in the combined AT&T/BellSouth territory that is functionally the same as the service AT&T offered within the AT&T in-region territory as of the Merger Closing Date. Such wholesale offering will be at prices comparable to those available in the overall market for wholesale broadband services."

People and Appointments

10/13. Friday, October 13, 2006, was Chad Boudreaux's last day as Deputy Chief of Staff at the Department of Homeland Security (DHS). See, statement by Michael Chertoff.

10/13. Friday, October 13, 2006, was Cresencio Arcos' last day as Assistant Secretary for International Affairs at the Department of Homeland Security (DHS). See, statement by Michael Chertoff.

10/13. Comptel elected or re-elected 14 persons to its Board of Directors. See, Comptel release.

More News

10/13. The Federal Communications Commission (FCC) released its Order [23 pages in PDF] regarding Qualcomm's request for declaratory ruling (DR) regarding the interference protection requirements applicable to the 700 MHz Band. The FCC declined to issue the DR requested by Qualcomm, but granted Qualcomm a limited waiver. See also, story titled "FCC Adopts Order Affecting Qualcomm's Mediaflo Service" in TLJ Daily E-Mail Alert No. 1,467, October 12, 2006. The FCC adopted this item on October 12, 2006. It is FCC 06-155 in WT Docket No. 05-7.

FTC Charges Real Estate Groups that Limited Publication of Listings on Certain Web Sites

10/12. The Federal Trade Commission (FTC) initiated seven administrative proceedings against real estate business entities that operated multiple listing services, alleging violation of Section 5, or other sections, of the FTC Act in connection with their restraining competition by limiting consumers' ability to obtain low cost real estate brokerage services. The FTC alleged that these businesses limited the publication of certain listing agreements on popular internet real estate web sites.

Section 5, which is codified at 15 U.S.C. § 45(a), provides, in part, that "Unfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce, are hereby declared unlawful."

See for example, complaint [PDF] against Information and Real Estate Services, LLC (IRES), a Colorado company. This complaint alleges that "This case involves a local, private real estate association that operates a Multiple Listing Service, which is a joint venture among its member Boards of Realtors designed to foster real estate brokerage services. IRES had adopted a rule that limits the publication of certain listing agreements on popular internet real estate web sites, in a manner that limits the ability of real estate brokers to use Exclusive Agency Listings to offer unbundled brokerage services at a lower price compared to the full service package."

It continues that "This rule deprives such brokers and the home sellers they represent of a significant benefit afforded by the MLS. The rule discriminates on the basis of lawful contractual terms between the listing real estate broker and the seller of the property, and lacks any justification that such a rule improves competitive efficiency. Consumers will be harmed by this rule because it denies a lower cost option to sellers and increases search costs to buyers. As such, this rule constitutes a concerted refusal to deal except on specified terms with respect to a key input for the provision of real estate services."

The complaint alleges that IRES adopted a "Web Site Policy" in 2003, which it rescinded in July of 2006, that "prevented certain lawful residential property listings provided to IRES, including ``Exclusive Agency Listings,´´ from being transmitted to real estate web sites, based on the contractual relationship between the home seller and the real estate agent the seller employs to promote the property."

The FTC also entered into an Agreement Containing Consent Order [3 pages in PDF] with IRES. The FTC also issued a Decision and Order [6 pages in PDF] that restrains IRES from further practices in violation of the FTC Act.

The FTC reached consent agreements with four other real estate entities. It released copies of complaints against two others. For hyperlinks to relevant documents, see FTC release.

FCC Delays its AT&T BellSouth Merger Review Decision

10/12. The Federal Communications Commission (FCC) announced that it has postponed consideration of its Memorandum Opinion and Order regarding the merger of AT&T and BellSouth from Thursday, October 12, to Friday, October 13, 2006. The FCC also postponed to Friday its consideration of a Notice of Inquiry (NOI) regarding broadband industry practices.

The FCC announced this delay late on Wednesday, October 11. FCC spokesman Clyde Ensslin stated that "We are committed to evaluating merger applications fairly and in a manner consistent with the public interest. We are continuing to work to complete our AT&T and BellSouth merger review in a timely manner." The FCC also issued a notice [PDF].

Earlier on October 11, 2006, the Department of Justice's (DOJ) Antitrust Division announced its approval of AT&T's acquisition of BellSouth, without imposing any conditions. See, DOJ release and story titled "DOJ Approves AT&T BellSouth Merger" in TLJ Daily E-Mail Alert No. 1,466, October 11, 2006.

FCC Chairman Kevin Martin (at right) spoke with reporters after the Thursday morning FCC meeting. He was asked about negotiations, and whether election year politics is affecting this proceeding. He responded that "I don't have any comment, or go into any of the details about the negotiations among all of the Commissioners about the merger item. We are continuing to still work on the merits of the issues that people are raising. So, I am not focused on the politics of this either. I am focused on the merits of the issues that people have raised."

He was also asked whether Commissioner Robert McDowell will participate. Martin said that "I don't have any comment on Commissioner McDowell's participation. But I do say that I am focusing on trying to make sure that I work with the concerns of my Democratic colleagues, and try to address the concerns that they have raised, in a way that we can try to get their support, like I have worked with them on mergers in the past."

He was also asked about the DOJ's decision to approve the merger, without imposing any conditions. He said that "Obviously, the Department of Justice goes through its own analysis. But, I wasn't particularly surprised. No. And, I had, we have evaluated a lot of the issues that have been raised, and have tried to put forth an item that I think the other Commissioners can end up supporting, and we are still trying to negotiate what concerns they might have. But, I have been more focused here on what the, on the issues that the Commissioners are discussing, rather than on any announcement that was made yesterday."

FCC Adopts Order and FNPRM Regarding TV White Space

10/12. The Federal Communications Commission (FCC) adopted, but did not release, a First Report and Order and Further Notice of Proposed Rule Making in its proceeding titled "Unlicensed Operation in the TV Broadcast Bands". Unused TV spectrum is also sometimes referred to as white space.

This item concludes that "fixed low power devices", but not portable devices, "can be allowed to operate" on certain unused TV channels.

Also, while the title of this proceeding refers to "unlicensed" use, and many people have long understood this to be a proceeding about making more spectrum available on an unlicensed basis, this item makes clear that the FCC is yet considering whether this spectrum should be made available on a licensed basis, and if so, by what licensing regime, and whether it should be auctioned.

This item also requests comment on whether "personal/portable devices can operate in any of the TV channels without causing harmful interference".

The FCC issued a short release [PDF] that describes this item, and all five Commissioners wrote statements.

FCC Chairman Kevin Martin spoke with reporters after the October 12 meeting regarding licensed and unlicensed use. He said that "The Commission looks at making sure that we have a balance of both licensed and unlicensed spectrum available. And, unlicensed and licensed use have different benefits, and pluses and minuses. And we try to make sure that we have some spectrum available for licensed use, and we try to make sure that we have some spectrum that is available for unlicensed use. So, I think we try to find a balance of that. And so, this one doesn't have a tentative conclusion. But, we are asking, what would be the best use of this spectrum, both from a technical perspective, and a policy perspective. Should it, would it be better off to make sure it is put forth in a licensed manner, an unlicensed manner. And, we will seek comment on it, seek questions on it. And, then we will make a decision about it, after we have had a chance to deliberate the issues that are raised." See also, brief written statement [PDF] of Martin.

In contrast, two Commissioners expressed a preference for unlicensed use of this spectrum. Commissioner Michael Copps wrote in his statement [PDF] that "The Commission's assumption has always been unlicensed". He added that making spectrum available for unlicensed WiFi use has been "enormously successful".

Copps (at left) also noted that "With our recent AWS auction and the upcoming 700 Mhz auction, we are opening up a huge swath of prime spectrum to licensed use -- and it seems to me, on the present record, that the appropriate balance is to open up the TV white spaces to unlicensed use. So while I am more than happy to give careful consideration to comments from those who favor licensed use of the white spaces, I would have preferred that today’s item announce a rebuttable presumption in favor of unlicensed use."

Similarly, Jonathan Adelstein wrote in his statement [PDF] that "The unlicensed, Wi-Fi movement has been one of the great telecommunications success stories over the past several years by enabling American consumers to offer and receive broadband services at the most local levels."

He continued that "I want to specifically express my preference for use of this spectrum on an unlicensed basis. Unlicensed services, with their low barriers to entry, present such a great opportunity for the deployment of broadband offerings in communities across the country no matter their size or financial status. Considering the favorable propagation characteristics for wireless broadband services in the 700 MHz band and the important obligation to protect existing television operations from harmful interference, I believe that unlicensed operations present the best use of the spectrum for this country."

Robert McDowell wrote in his statement [PDF] that this item "provides tremendous opportunities for further unlicensed use of these slices of the spectrum". See also, brief statement of Deborah Tate.

The FCC release states that the order portion of this item concludes that "fixed low power devices can be allowed to operate on TV channels in areas where those frequencies are not being used for TV or other incumbent licensed services." However, this does not extend to TV channel 37, which is used by radio astronomy and wireless medical telemetry services, or to TV channels 52-69, which have been reallocated for public safety and other mobile services.

The FCC release also states that the FCC "declined to permit the operation of personal/portable devices on TV channels 14-20, which are used by public safety service in 13 cities, leaving for further consideration the issue of whether fixed devices might be used in that band. Marketing of such devices may commence on February 18, 2009, after the digital television (DTV) transition is complete and all TV stations are in operation on their permanent DTV channels."

The FCC release states that the further NPRM portion of this item requests comments pertaining to "whether personal/portable devices can operate in any of the TV channels without causing harmful interference", "whether low power devices should be permitted on TV channels 2-4, which are used by TV interface devices such as VCRs, and whether fixed low power devices can be permitted on TV channels 14-20."

The FCC release also states that the FCC "made detailed technical proposals to facilitate use of a dynamic frequency selection (DFS) mechanism to ensure that TV band devices operate only on vacant TV channels. In addition, it sought further comment on implementation details for the geo-location and control signal interference avoidance approaches discussed in the Notice in this proceeding."

This item is FCC 06-156 in ET Docket No. 04-186. Hugh Van Tuyl explained this item at the October 12 meeting.

The FCC adopted its original NPRM back on May 13, 2004. See, Notice of Proposed Rulemaking [38 pages in PDF] in the proceeding titled "In the Matter of Unlicensed Operation in the TV Broadcast Bands Additional Spectrum for Unlicensed Devices Below 900 MHz and in the 3 GHz Band". This NPRM is FCC 04-113 in ET Docket Nos. 04-186 and No. 02-380. 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; and story titled "FCC Releases NPRM Regarding Unlicensed Use of TV Spectrum" in TLJ Daily E-Mail Alert No. 905, May 26, 2004.

FCC Adopts Order Affecting Qualcomm's Mediaflo Service

10/12. The Federal Communications Commission (FCC) adopted, but did not release, an Order regarding Qualcomm's request for declaratory ruling (DR) regarding the interference protection requirements applicable to the 700 MHz Band. The FCC declined to issue the DR requested by Qualcomm, but granted Qualcomm a limited waiver. Qualcomm's Paul Jacobs is pleased.

The FCC issued a short release, and two Commissioners released short statements.

Qualcomm filed its Petition for Declaratory Ruling with the FCC on January 14, 2005. See, pages 1-25, pages 26-50, and pages 51-56 [PDF page numbers].

Qualcomm, which holds lower 700 MHz band licenses, requested that the FCC issue a DR that the interference calculation procedures contained in the FCC's Office of Engineering and Technology's (OET) Bulletin No. 69 are acceptable to demonstrate compliance with the TV/DTV interference protection criteria of Section 27.60 of the FCC Rules. Qualcomm argued that granting the request would speed deployment of its new Mediaflo service, which is a nationwide mediacast network delivering high quality video and audio content, and mobile data applications, to third generation mobile phones.

The FCC wrote in its release that "MediaFLO is designed to use Qualcomm's 700 MHz spectrum license for downlink (base station to mobile) communications and existing mobile telephone networks for uplink (mobile to base station) communications. Because Qualcomm’s licenses cover TV/DTV Channel 55 of the 700 MHz Band, the company must protect broadcasters on Channels 54, 55 and 56 from interference using the criteria set forth in the FCC’s rules." (Parentheses in original.)

The FCC wrote that the yet to be released order declares that OET Bulletin 69 "with certain modifications, is an appropriate methodology for demonstrating whether the MediaFLO system complies with the FCC’s rules on interference protection in the 700 MHz Band. OET-69 is an established engineering methodology for making radio field strength predictions relating to the broadcast television service. Additionally, the FCC and its licensees have substantial experience with its implementation, particularly as it relates to predicting interference to television service from transmitters located both outside and inside another station’s service contour. Given the particular characteristics of MediaFLO signals, which share many similarities with broadcast digital television signals, the FCC has determined that use of OET-69 is appropriate for demonstrating whether MediaFLO will comply with the interference protection requirements in markets where Qualcomm seeks to operate during the DTV transition."

The FCC release adds that "the FCC declined Qualcomm's request to declare that predicted interference to not more than two percent of the population served by a TV/DTV station is de minimis and therefore acceptable. However, the FCC granted Qualcomm a limited waiver using a measured approach where the allowable predicted interference to a TV/DTV station’s service caused by the MediaFLO system will increase incrementally each year from the release of today’s Order until the end of the DTV transition in February 2009: 0.5 percent of the population within the TV/DTV station’s Grade B contour for the first year, 1.0 percent for the second year, and 1.5 percent for the remainder of the DTV transition."

The FCC release also states that the FCC declined Qualcomm's request to establish streamlined processing of applications.

Paul Jacobs, CEO of Qualcomm, stated in a release Qualcomm and its Mediaflo subsidiary "are very pleased with the FCC ruling ... We'd like to express our appreciation to Chairman Martin, the other Commissioners and the FCC staff for their commitment to the industry and their vision in enabling the development and delivery of new technology and services for consumers."

This item is FCC 06-155 in WT Docket No. 05-7. Paul Moon explained this item at the October 12 FCC meeting.

Mediaflo is a subsidiary of Qualcomm. Crown Castle International also has a pending petition regarding its Modeo mobile television division. There are also other related requests.

FCC Chairman Kevin Martin spoke with reporters after the October 12 meeting. He was asked about the Modeo request. He answered that "I think that we will end up trying to address other waiver, all of the waiver requests, as fast as we can. Some of the waiver requests in front of us also involve not only commercial uses, but requests of waivers of interference on government uses. And, when that occurs, we have to coordinate that with other agencies. And, that process sometimes takes a while. So, we have to end up doing that as well."

FCC Adopts Notice of Inquiry Regarding Video Competition

10/12. The Federal Communications Commission (FCC) adopted, but did not release, a Notice of Inquiry (NOI) seeking information to assist it in preparing its annual report to the Congress on the status of competition in the market for the delivery of video programming.

The FCC issued a short release that describes this NOI. It states, among other things, that the "FCC seeks information on video programming distributed over the Internet and via Internet Protocol (“IP”) networks".

FCC Commissioner Michael Copps wrote in a separate statement [PDF] that "We are seeing new technologies that have the potential to utterly transform the viewing experience." He also stated, at the October 12 meeting that IPTV may "utterly transform the viewing experience".

He also wrote that "Getting these new products and services out to all Americans is going to be a challenge, however, so we need to be working toward the kind of competition that leaves no area behind, whether it’s the inner city or the rural farm."

See also, statement [PDF] of Robert McDowell and statement [PDF] of Jonathan Adelstein. This NOI is FCC 06-154 in MB Docket 06-189. Marcia Glauberman summarized this item at the FCC's October 12 meeting.

More FCC News

10/12. Federal Communications Commission (FCC) Chairman Kevin Martin spoke with reporters after the October 12, 2006, meeting. He was asked, "Is this a good time to move forward with the Section 621 franchising now that Congress has recessed?" Martin responded, "I think that I have publicly stated I would like to move forward by the end of the year. And, I would still like for the Commission to be able to try to address what it can do to further the opportunity for competitive video entry, and for deregulation of franchise reform by the end of the year. And, I still hope to be able to do so."

10/12. FCC Commissioner Robert McDowell spoke at the FCC's meeting on October 12. He noted the presence of a French regulator at the meeting. McDowell commented that the British were defeated at the Battle of Yorktown with the assistance of the French fleet. McDowell then asserted that this victory set in motion a cascading series of events that "directly lead to the creation" of the FCC. The British forces surrendered at Yorktown in October of 1781.

People and Appointments

10/12. Joseph Billy was named Assistant Director in charge of the Federal Bureau of Investigation's (FBI) Counterterrorism Division. He is a 28 year employee of the FBI. See, FBI release.

DOJ Approves AT&T BellSouth Merger

10/11. The Department of Justice's (DOJ) Antitrust Division announced its approval of AT&T's pending acquisition of BellSouth, without imposing conditions.

Thomas Barnett, the Assistant Attorney General in charge of the Antitrust Division stated in a release that "After thoroughly investigating AT&T’s proposed acquisition of BellSouth, the Antitrust Division determined that the proposed transaction is not likely to reduce competition substantially. The Division investigated all areas in which the two companies currently compete – including residential local and long distance service, telecommunications services provided to business customers, and Internet services -- and the merger’s impact on future competition for wireless broadband services."

Barnett (at right) continued that "The presence of other competitors, changing regulatory requirements and the emergence of new technologies in markets for residential local and long distance service indicate that this transaction is not likely to harm consumer welfare. The proposed acquisition does not raise competition concerns with respect to Internet services markets or `net neutrality´. The merged firm would continue to face competition from other facilities-based rivals in the provision of telecommunications services to business customers including local private line services."

He added that "The combination would not significantly increase concentration in the ownership of spectrum in any geographic area or give AT&T control over a large enough share of all spectrum suitable for wireless broadband services to raise competitive concerns. Finally, the merger would likely result in cost savings and other efficiencies that should benefit consumers."

The DOJ release adds that it "investigated whether the merger would create competitive problems in Internet services, including ``net neutrality´´ concerns regarding the merged firm’s ability or incentive to favor its own Internet content over that of its rivals. The Division found that the merger would neither significantly increase concentration in markets for the provision of broadband services to end users nor increase Internet backbone shares significantly. Although the merger would increase the number of subscribers on AT&T’s broadband network, the large majority of the nation’s residential and small business ``eyeballs´´ remain with other large broadband Internet service providers (such as Verizon, Qwest, Comcast, and Time Warner)." (Parentheses and quotation marks in original.)

It added that "The merger is not likely substantially to lessen competition in the provision of wireless broadband services. The combination would not significantly increase concentration in the ownership of spectrum in any geographic area or give AT&T control over a large enough share of spectrum suitable for wireless broadband services to raise competitive concerns."

The Federal Communications Commission (FCC) is conducting a redundant antitrust merger review. It has announced that it will consider an order regarding the AT&T BellSouth merger at its meeting of October 12, 2006. See, agenda [PDF].

BellSouth stated in a release that "We are pleased that the Department of Justice has approved the merger between BellSouth and AT&T.  We look forward to getting approval from the Federal Communications Commission in the very near future. This merger will create a communications industry leader capable of providing customers across the BellSouth region with the latest in wireline, wireless, broadband and video technologies and innovation."

Ben Scott, of the Free Press, a Washington DC based interest group that advocates network neutrality mandates, stated in a release that "The merger of AT&T and Bell South would take a big step toward the resurrection of Ma Bell, and its magnitude demands thorough scrutiny and careful review. Instead, the officials charged with protecting the public interest are rubber-stamping the deal in the most irresponsible manner imaginable. The consent decree and subsequent judicial review have been tossed out the window. It appears the fix is in."

He continued that "The public interest is not served by handing out favors to large corporations without any safeguards. We are witnessing a wave of concentration in the telecommunications market that threatens to sweep away the free and open Internet. Yet the watchdogs in Washington can't be bothered to require even the most basic consumer protections."

He concluded that "The new AT&T wants all the market power of its old monopoly without any consumer protections. The FCC must not sign off on this deal without applying serious conditions that prevent discrimination and foster broadband competition. First and foremost, this merger should not be allowed to proceed without permanent, binding protections for Net Neutrality."

People and Appointments

10/11. Courtney Reinhard was named staff counsel for the House Commerce Committee (HCC). She will work on internet, broadcast decency, and other telecommunications issues. She previously worked for Sen. Jim DeMint (R-SC), a member of the Senate Commerce Committee (SCC). She has also worked for Sen. Sam Brownback (R-KS) and Rep. John Shimkus (R-IL). She worked on Rep. Shimkus' DOT KIDS Act, the Broadcast Decency Enforcement Act, and the just enacted WARN Act. Several staff members have left the HCC in recent months, including Kelly Kohl, who went to the National Association of Broadcasters (NAB), Jaylyn Jensen, who went to Lenovo, and Will Nordwind, who went to the law firm named Venable.

More News

10/11. The Department of Homeland Security (DHS) published a notice in the Federal Register that states that the "Secretary of Homeland Security announces the designation of the Under Secretary for Preparedness, Directorate for Preparedness, as the Manager, National Communications System (NCS)." See, Federal Register, October 11, 2006, Vol. 71, No. 196, at  Pages 59803-59804.

10/11. The Federal Trade Commission (FTC) announced in a release that it now hosts a web site titled "Tech-ade Blog", which pertains to the FTC's hearing titled "Protecting Consumers in the Next Tech-ade", to be held on November 6 through 8, 2006, in Washington DC. See also, event web site and schedule.

Go to News from October 6-10, 2006.