TLJ News from September 11-15, 2007

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9/14. A trial jury of the U.S. District Court (NDCal) returned a verdict of guilty against Judy Green on twenty-two counts of fraud, collusion, aiding and abetting, and conspiracy in connection with her participation in schemes to defraud the Federal Communications Commission's (FCC) e-rate subsidy program. See, Department of Justice (DOJ) release. The FCC's e-rate program was structured by the Congress, and is now administered by the FCC, in a manner that inspires wasteful and fraudulent use of subsidies.

7th Circuit Applies Abstention Doctrine in Automated Phone Call Case

9/13. The U.S. Court of Appeals (7thCir) issued its opinion in v. Indiana, a case about state regulation of automated telephone calls regarding candidates in political elections. However, this opinion does not address substantive state law, federal preemption, or the commerce clause or First Amendment of the U.S. Constitution. Rather, this case only addresses the Younger abstention doctrine., Inc., is a Virginia corporation that provides prerecorded telephonic messages. It uses prerecorded telephonic messages to poll households, identify political supporters, deliver political advocacy messages, and encourage supporters to go to the polls to vote for particular candidates. It makes interstate telephone calls into all states, including Indiana.

The Economic Freedom Fund (EFF) is a customer of FreeEats. FreeEats make calls on behalf of the EFF to persons in Indiana in support of various congressional candidates.

The state of Indiana enacted a statute that prohibits the use of automatic dialing machines to send prerecorded messages to Indiana telephone subscribers. It is titled the "Automated Dialing Machine Statute" or ADMS. It is codified at Ind. Code § 24-5-14. This statute contains no exception for political communications.

The federal Telephone Consumer Production Act (TCPA) which is codified at 47 U.S.C. § 227, and the regulations promulgated thereunder by the Federal Communications Commission (FCC), also regulate the use of any "automatic telephone dialing system".

However, the federal TCPA does not preempt more restrictive state statutes. Section 227(e) provides that with certain exceptions, "nothing in this section or in the regulations prescribed under this section shall preempt any State law that imposes more restrictive intrastate requirements or regulations on, or which prohibits ... the use of automatic telephone dialing systems ... the use of artificial or prerecorded voice messages ..."

FreeEats filed a complaint in U.S. District Court (SDInd) seeking declaratory and injunctive relief  to prevent Indiana from enforcing its statute against it on the legal theories that federal law preempts it, that it violates the commerce clause of the US Constitution, and that it violates the First Amendment.

However, three days before filing, Indiana filed a complaint in Indiana state court against one the EFF to enforce the statute against it.

Indiana filed a motion in the U.S. District Court requesting that it abstain from exercising jurisdiction pursuant to the principles stated by the Supreme Court in its 1971 opinion in Younger v. Harris, which is also reported at 401 U.S. 37. FreeEats moved for a preliminary injunction.

The District Court denied the motions.

The District Court denied FreeEats' motion because it found that FreeEats had not shown a likelihood of success on the merits on any of its claims. First, it found that the federal TCPA does not preempt the Indiana ADMS. Second, it found that FreeEats was unlikely to prevail on its commerce clause claim because the ADMS does not impose a clearly excessive burden on interstate commerce in relation to the putative local benefits of protecting residential privacy. Third, it found that FreeEats was unlikely to prevail on its First Amendment claim, because the ADMS is content neutral, narrowly tailored to achieve Indiana's interest in protecting residential privacy, and leaves open alternative channels for communication, such as person to person phone calls and door to door canvassing.

Both Indiana and FreeEats appealed.

The Court of Appeals reversed the District Court's denial of Indiana's motion to dismiss pursuant to the Younger abstention doctrine, and vacated its denial of FreeEats' motion for a preliminary injunction. It remanded the case to the District Court with instructions to dismiss pursuant to the Younger abstention doctrine.

The Court of Appeals wrote that "There is no dispute that this case satisfies the first three factors for abstention under Younger. First, the state proceedings are judicial in nature as Indiana filed in the Brown Country Circuit Court its complaint against the Economic Freedom Fund and FreeEats alleging violations of the ADMS."

Second, wrote the Court of Appeals, "Indiana's complaint clearly implicates an important state interest, specifically the preservation of residential privacy as expressed by the Indiana legislature in its passage of the ADMS."

And third, "FreeEats may potentially avail itself of the same remedies in either the Indiana state court or the district court for its claims that the ADMS is preempted by federal law and unconstitutional. Accordingly, this case qualifies for abstention."

The Court of Appeals concluded that the District Court "erred in declining to abstain from exercising jurisdiction over this case pursuant to the Younger abstention doctrine, because: Indiana filed its complaint in state court before FreeEats filed its complaint in this case; Indiana’s state court complaint seeking to enforce the ADMS implicated important state interests; the Indiana courts offer an adequate opportunity for review of FreeEats’ federal preemption and constitutional claims; and FreeEats did not demonstrate the existence of any ``exceptional circumstances´´ that would exempt this case from the principles of Younger."

This case is, Inc. v. State of Indiana and Steve Carter, U.S. Court of Appeals for the 7th Circuit, App. Ct. No. 06-3900, an appeal from the U.S. District Court for the Southern District of Indiana, Indianapolis Division, D.C. No. 06 C 1403, Judge Larry McKinney presiding. Judge Manion wrote the opinion of the Court of Appeals, in which Judges Evans and Williams joined.

The state court action is Indiana v. Economic Freedom Fund, Brown County Circuit Court, No. 07C01-0609-MI-0425.

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9/13. The U.S. Court of Appeals (8thCir) issued its per curiam unpublished opinion [2 page in PDF] in Schulz v. IRS. The Court of Appeals affirmed the judgment of the District Court, which denied a motion to quash an IRS third party summons issued to PayPal in an enforcement action. This case is Robert Schulz v. Internal Revenue Service, et al., U.S. Court of Appeals for the 8th Circuit, App. Ct. No. 06-2891, an appeal from the U.S. District Court for the District of Nebraska.

FCC Adopts MO&O Regarding 800 MHz Band Reconfiguration

9/12. The Federal Communications Commission (FCC) adopted a Third Memorandum Opinion and Order  (3rdMO&O) regarding the obligations of licensees involved in 800 MHz band reconfiguration at its September 11, 2007, meeting. It released the text [18 pages in PDF] on September 12.

The FCC also released a companion Public Notice (DA 07-168) [9 pages in PDF]. See also, FCC release [PDF] summarizing these two items. These items pertain to minimizing interference between public safety and commercial users in this band.

This MO&O states that Sprint "has not met the December 26, 2006, eighteen-month benchmark for clearing Channel 1-120 incumbents as required by the 800 MHz rebanding process. In that connection, we deny the portion of Sprint’s Petition for Reconsideration that sought “clarification” of the eighteen-month benchmark. Although we do not impose fines or forfeitures on Sprint for not meeting the benchmark, we establish additional benchmarks to ensure timely clearing of the Channel 1-120 band by all incumbent licensees, including Sprint itself. We also require Sprint to provide monthly reports on its channel-clearing efforts. In addition, we clarify the 30-month rebanding benchmark, which requires all 800 MHz licensees that must reband to have ``commenced´´ reconfiguration of their systems by December 26, 2007." (Footnotes omitted.)

The FCC also wrote that "We also address several petitions by NPSPAC licensees to extend their rebanding deadline until after incumbent analog broadcasters operating in their area on TV Channel 69 have vacated the spectrum as part of the DTV transition. We grant petitioners’ requests in part and will allow them to delay the commencement of their base station infrastructure retuning until March 1, 2009, after the Channel 69 incumbents in their area have vacated the spectrum."

The Public Notice states that it "announces supplemental procedures and provides guidance for completion of 800 MHz rebanding by National Public Safety Planning Advisory Committee (NPSPAC) licensees."

This MO&O is FCC 07-167 in WT Docket 02-55.

House Judiciary Committee Seeks Information about Surveillance from Government, Telcos and ISPs

9/11. The House Judiciary Committee (HJC) announced that it will hold another hearing on surveillance and the Foreign Intelligence Surveillance Act (FISA). See, HJC notice.

This hearing, titled "Warrantless Surveillance and the Foreign Intelligence Surveillance Act: The Role of Checks and Balances in Protecting Americans’ Privacy Rights (Part II)", will begin at 11:00 AM on September 18, 2007.

Kenneth Wainstein, Assistant Attorney General in charge of the Department of Justice's (DOJ) National Security Division (NSD), is scheduled to testify. See also, Wainstein's speech of September 10, 2007, and story titled "Wainstein Discusses FISA" in TLJ Daily E-Mail Alert No. 1,638, September 11, 2007.

Michael McConnell, the National Intelligence Director, is also scheduled to testify.

Rep. John Conyers (D-MI) sent a letter [PDF] on September 11, 2007, to McConnell, and a letter [8 pages in PDF] to Fred Fielding, the White House Counsel, regarding government surveillance, the FISA, and amending the FISA.

While some Senators, Representatives and Committees involved in surveillance and FISA related investigations and debates have attempted to avoid involving telecommunications companies and internet service providers, Rep. Conyers' letters focus on companies that are or have been clandestinely collaborating with the government.

Rep. Conyers' letter to McConnell pertains to the involvement of telecommunications companies in surveillance, the government's assertion of the state secrets doctrine in civil litigation regarding this surveillance, and the government's failure to provide information to the HJC regarding this surveillance.

Rep. Conyers' letter references an article by K. Shrader titled "Spy chief reveal classified details about surveillance", published in the El Paso Times on August 22, 2007, and a transcript of an interview of McConnell by the El Paso Times' Chris Roberts.

See, full story.

Summary of Protect America Act

9/11. The Senate approved S 1927 [LOC | WW], the "Protect America Act", on August 3, 2007, by a vote of 60-28. See, Roll Call No. 309. The House approved the bill on August 4, 2007, by a vote of 227-183. See, Roll Call No. 836. President Bush signed the bill on August 5, 2007. It is now Public Law No. 110-55.

House Republicans vote 186-2. House Democrats voted 41-181. All of the votes against in the Senate were cast by Democrats.

Much of the debate and rhetoric regarding this bill has focused on telephone calls and terrorists. Proponents of S 1927 have argued that it addresses language in the statute regarding intercepts that has been rendered outdated by changes in technology.

S 1927 that places "surveillance directed at a person reasonably believed to be located outside of the United States" outside of the Foreign Intelligence Surveillance Act's (FISA) definition of "electronic surveillance. It also authorizes the Attorney General (AG) and the Director of National Intelligence (DNI) to order the acquisition of any foreign intelligence information that is not "electronic surveillance" as redefined.

However, the language of the statute also enables the AG and DNI to order far more than the interception of terrorist's phone calls. The statute reaches not only terrorist information, but more broadly all "foreign intelligence" information. The statutes reaches not only the content of phone calls, but more broadly all "information", including "stored" communications and any other "information". The statute applies not only to acquisitions from a "communications service provider", but more broadly to any "person ... who has access to communications, either as they are transmitted or while they are stored". The statute applies not only to the acquisition of information, but also to any "person to ... provide ... facilities, and assistance necessary to accomplish the acquisition".

Presidential and Congressional Comments. President Bush stated on August 5, 2007, that as a result of changes in technology, "our intelligence professionals have told us that they are missing significant intelligence information that they need to protect the country. S.1927 reforms FISA by accounting for changes in technology and restoring the statute to its original focus on appropriate protections for the rights of persons in the United States -- and not foreign targets located in foreign lands." See, statement.

The White House press office issued a release that summarizes the bill.

Sen. Jay RockefellerSen. Jay Rockefeller (D-WV) (at right), the Chairman of the Senate Intelligence Committee, and sponsor of the bill, stated on the Senate floor that this bill "will provide the Director of National Intelligence, Mike McConnell, the temporary authorities he needs to expand his ability to collect time-sensitive intelligence against foreign targets as the Congress continues to work on a more lasting effort to reform the Foreign Intelligence Surveillance Act, or FISA, after 6 months has passed."

He a added that it provides that "a court order is not required for the surveillance of foreign-to-foreign communications, even if the interception of the communication occurs in the United States".

Rep. Lamar Smith (R-TX), the ranking Republican on the House Judiciary Committee (HJC) stated in the House debate on the bill that "In the 30 years since Congress enacted the Foreign Intelligence Surveillance Act, telecommunications technology has dramatically changed. As a result, the intelligence community is hampered in gathering essential information about terrorists needed to prevent attacks against America. Congress must modernize FISA to address this problem."

Rep. Smith offered this summary of the bill. "The bill, one, clarifies well-established law that neither the Constitution nor Federal law requires a court order to gather foreign communications from foreign terrorists; two, adopts flexible procedures to collect foreign intelligence from foreign terrorists overseas; three, provides court review of collection procedures for this new authority; and, four, requires semiannual reports to Congress on the use of this new authority."

Rep. Zoe Lofgren (D-CA) stated that "this bill goes far beyond what is necessary and what was agreed to by the Director of National Intelligence. All of us agree that foreign-to-foreign communications need to be available for surveillance. However, this bill would grant the Attorney General the ability to wiretap anybody, anyplace, anytime, without court review, without any checks and balances. I think that this unwarranted, unprecedented measure would simply eviscerate the fourth amendment that protects the privacy not of terrorists, but of Americans."

Section by Section Overview. S 1927 amends the Foreign Intelligence Surveillance Act of 1978, which is codified at 50 U.S.C. § 1801 et seq.

Section 1 of the bill merely provides its title, the "Protect America Act of 2007".

Section 2 of the bill adds two new Sections, 105A and 105B, to the FISA after the current Section 105. (Section 105 of the FISA is codified at 50 U.S.C. § 1805.) Section 2 contains the key provisions of the bill, and is summarized in more detail below.

Section 3 of the bill adds a new Section 105C to the FISA. It pertains to "procedures by which the Government determines that acquisitions conducted pursuant to section 105B do not constitute electronic surveillance".

Section 4 of the bill addresses reporting to the Congress.

Section 5 of the bill makes technical changes to the FISA made necessary by the other provisions of the bill.

Section 6 provides an effective date (immediate), transition procedure, and a sunset (after 180 days).

Located Outside the U.S. The new Section 105A provides in full that "Nothing in the definition of electronic surveillance under section 101(f) shall be construed to encompass surveillance directed at a person reasonably believed to be located outside of the United States."

Section 101 of the FISA, which is codified at 50 U.S.C. § 1801, is the definitional section. Section 101(f) provides the definition of "electronic surveillance".

That is, one of the main things that the FISA does is regulate certain "electronic surveillance". But, this new Section 105A redefines some of this electronic surveillance -- that which is directed at a person reasonably believed to be located outside of the U.S. -- as not constituting "electronic surveillance" within the meaning of the FISA.

The new Section 105B then provides that "Director of National Intelligence and the Attorney General, may for periods of up to one year authorize the acquisition of foreign intelligence information concerning persons reasonably believed to be outside the United States", and elaborates on procedures for such authorizations, including certifications, and notice to the foreign intelligence surveillance court.

Foreign Intelligence. This new Section 105B carves out a category of acquisitions that are outside of the 4th Amendment, and prior court authorizations. This applies to far more than listening in on terrorist related phone calls where one person is "reasonably believed to be located outside of the U.S."

It refers to "foreign intelligence information". This term is defined in Section 101(e) (50 U.S.C. § 1801(e)). This includes not only terrorist information, by national defense related information, and any information that relates to "the conduct of the foreign affairs of the United States".

Moreover, Section 105B provides that "foreign intelligence" need not be the only purpose, or even the primary purpose; it need only be a "significant purpose of the acquisition".

Acquisition of Information. The media of information covered by the new Section 105B is broad. First, it states that one of the prerequisites is that "the acquisition does not constitute electronic surveillance". But, recall that electronic surveillance (such as wiretaps, and acquisition of the contents of other radio, wire, or cable communications) is defined not to constitute electronic surveillance if it is "directed at a person reasonably believed to be located outside of the United States".

Then, the new Section 105B acquisition procedure would apply to other media, such as stored e-mail communications, other stored communications, and records in electronic, paper or other format.

The pertinent language of Section 105B is as follows: "the acquisition involves obtaining the foreign intelligence information from or with the assistance of a communications service provider, custodian, or other person (including any officer, employee, agent, or other specified person of such service provider, custodian, or other person) who has access to communications, either as they are transmitted or while they are stored, or equipment that is being or may be used to transmit or store such communications".

Any "information" held by a any "person ... who has access to communications ... or equipment" is covered, provided that the other requirements, such as "foreign intelligence", "outside" the U.S., decision by the AG or DNI, and so forth, are satisfied.

This language covers both information in transit and in storage.

This language, construed literally, covers USPS letters. This is regulated by statute, but Section 105B begins with the clause "Notwithstanding any other law".

Moreover, there is no requirement that the information acquired by a Section 105B order be communications. The requirement is only that the person to whom the order is directed "has access to communications ... or equipment". Thus, the subscriber, billing, call, search and access records of communications carriers and internet service providers could be acquired by a Section 105B order.

Furthermore, any "person ... who has access to communications", construed literally, would include any owner of real property wherein communications are stored. It would also include any tenant or custodian -- either in the legal or janitorial sense. The government could compel people to search other people's rooms, offices, and computers, and seize letters, computer files, and other "information", and turn it over to the government, under order of secrecy.

The government could search real property for information itself "with the assistance of a ... person ... who has access to communications ... or equipment". It could search for business records. These are covered by Section 215 of the FISA (which is codified at 50 U.S.C. § 1861), but Section 105B begins with the clause "Notwithstanding any other law".

Or, the government could install audio listening devises, video cameras, or keystroke loggers. There are statutory regimes covering some of these, but Section 105B begins with the clause "Notwithstanding any other law".

Of course, the Congress does not have the authority to enact a statute that begins with the clause "Notwithstanding the Fourth Amendment of the Constitution".

Service Providers Obligations, Compensation, and Immunity. This Section 105B also requires carriers, service providers, custodians of information, and any "person" to comply immediately with government directives issued under Section 105B.

It also requires the government to compensate these service providers and others "at the prevailing rate", empowers the courts to compel compliance by service providers and others, and allows service providers to whom the order is directed, but not their customers, to challenge directives in secret proceedings.

This new Section 105B also provides limited immunity for service providers and others. It states that "Notwithstanding any other law, no cause of action shall lie in any court against any person for providing any information, facilities, or assistance in accordance with a directive under this section."

Sen. Patrick Leahy (D-VT) held a news conference in the SJC hearing room on August 20, 2007, at which he insisted that the bill provides no immunity.

The bill does provide immunity for "providing any information, facilities, or assistance in accordance with a directive under this section". This section would be a reference to the new Section 105B, which did not become law until August 5, 2007. Thus, the bill does not extend blanket immunity retroactively to "providing any information, facilities, or assistance" prior to August 5, 2007.

Nevertheless, this language still provides service providers and others arguments for extending immunity for acts committed prior to August 5, 2007. For example, a service provider might argue for immunity for "providing any information, facilities, or assistance" prior to August 5, 2007, where there is a second redundant providing of the same "information, facilities, or assistance" after August 5, 2007, that is done "in accordance with a directive under this section".

CALEA. The 1994 Communications Assistance for Law Enforcement Act (CALEA) requires telecommunications carriers to "shall ensure that its equipment, facilities, or services that provide a customer or subscriber with the ability to originate, terminate, or direct communications are capable of expeditiously isolating and enabling the government ... intercept, to the exclusion of any other communications, all wire and electronic communications carried by the carrier ..."

That is, the CALEA provides that telecommunications carriers must design their equipment and networks to facilitate lawfully conducted wiretaps and other intercepts. Statutes other than the CALEA, such as the Wiretap Act and the FISA, address what intercepts are lawful.

The Federal Communications Commission (FCC) has since extended by administrative fiat CALEA like obligations to broadband service providers and interconnected voice over internet protocol (VOIP) service providers.

S 1927 does not reference or amend the CALEA, Title 18 or Title 47. It does not reference any administrative proceedings of the FCC. However, it gives the DNI and AG CALEA like authority.

S 1927 not only provides for the acquisition of information, which includes acquisition by wiretap. It also provides that the "Director of National Intelligence and Attorney General may direct a person to ... provide ... facilities, and assistance necessary to accomplish the acquisition ...". S 1927 does not expressly include, or exclude, "technology mandates" or "design requirements". Rather, it uses the term "assistance", which is also the key term of the CALEA.

S 1927 provides the AG an alternative means for compelling carriers to design their equipment and networks in a manner that facilitates surveillance. S 1927 also expands DOJ authority.

The CALEA statute only regulates "carriers". The FCC has determined that CALEA like obligations also apply to broadband and VOIP service providers. Section 105B of S 1927 applies to any "person". Construed literally, this would give the DNI and AG authority to issues orders to computer makers, mobile device manufacturers, database managers and software developers to provide "facilities, and assistance necessary to accomplish the acquisition" of information.

This authority would apply "With respect to an authorization of an acquisition under section 105B", which carries the requirements that "a significant purpose of the acquisition is to obtain foreign intelligence information" and that it concerns "persons reasonably believed to be outside the United States". However, carriers' networks, electronics manufacturers' equipment, and developers' software are used by both the people who are targeted by Section 105B orders, and by everyone else. A Section 105B order to "provide ... facilities, and assistance necessary to accomplish the acquisition" would impose requirements on the networks, equipment and software used by everyone.

Moreover, these Section 105B orders for "assistance", unlike the CALEA's "assistance" requirement, would be part of a secret process. In addition, the DNI and AG would issue the orders. The FCC may have demonstrated disregard for the benefits of innovation in information technology in its CALEA rulings. However, its concern for innovation is substantially more than that demonstrated by the DOJ in its filings with the FCC.

FCC Adopts E911 Location Tracking Accuracy Benchmarks

9/11. The Federal Communications Commission (FCC) adopted, but did not release, a Report and Order regarding E911 Phase II location accuracy requirements at the Public Safety Answering Point (PSAP) service area level. This is another in a series of FCC actions related to mandating and increasing the accuracy of location tracking of wireless devices, including VOIP. See, full story.

FCC Adopts R&O and Further NPRM Regarding Cable Carriage of Digital Broadcast TV Signals

9/11. The Federal Communications Commission (FCC) adopted, but did not release, a Third Report and Order and Third Further Notice of Proposed Rulemaking regarding the mandatory cable carriage of digital broadcast television signals after the conclusion of the digital television (DTV) transition.

The FCC issued a short release [PDF] that that summarizes this item. It states that this item "allows cable operators to comply with the viewability requirement by choosing to either: (1) carry the digital signal in analog format, or (2) carry the signal only in digital format, provided that all subscribers have the necessary equipment to view the broadcast content. The viewability requirements extend to February 2012 with the Commission committing to review them during the last year of this period in light of the state of technology and the marketplace."

The FCC's release also states that "a cable system with activated channel capacity of 552 megahertz or less may request a waiver of the viewability requirements." It adds that the FCC "is also seeking comment in a Further Notice on ways to minimize any economic impact on small cable operators while still complying with the statutory requirements for carriage of local TV stations."

Finally, the FCC release states that "While the item provides cable operators with flexibility, the FCC reaffirmed the requirement that cable systems must carry high definition (“HD”) broadcast signals in HD format and reaffirmed its current material degradation standard. Cable operators must carry broadcast signals so that the picture quality is at least as good as the quality of any other programming carried on the system."

FCC Chairman Kevin Martin wrote in a statement associated with this item that "If the cable companies had their way", viewers "could go to sleep one night after watching their favorite channel and wake up the next morning to a dark fuzzy screen. This is because the cable operators believe that it is appropriate for them to choose which stations analog cable customers should be able watch."

Martin continued that "It is not acceptable as a policy matter or as a legal matter. The 1992 Cable Act is very clear. Cable operators must ensure that all local broadcast stations carried pursuant to this Act are ``viewable´´ by all cable subscribers. Thus, they may not simply cut off the signals of these must-carry broadcast stations after the digital transition. The Order we adopt today prevents the cable operators from doing just that."

Rep. Joe Barton (R-TX) and Rep. Fred Upton (R-MI) stated in a release that "People who know how to change channels are still the best regulators of cable content, but we are glad that the FCC is at least starting to lean in the direction of good sense and away from the more onerous forced-carriage obligations it had been considering. The best thing about the FCC’s decision, however, would be if it closes the debate and provides viewers and cable operators with some certainty. That was our goal when we included a similar compromise in the DTV legislation that passed the House, although that language would have also provided a straightforward exemption for smaller operators rather than the FCC’s clumsy waiver process. We’re still wrangling over all this because the entire provision fell victim to Senate rules before the DTV bill became law."

Kyle McSlarrow, head of the National Cable & Telecommunications Association (NCTA), stated in a release that "In 2005, the cable industry made two public commitments. First, despite the fact that this is a broadcaster transition, we said we would join the effort to educate all Americans about the digital TV transition. Last week, we announced a $200 million consumer education campaign that started this month."

"Second," said McSlarrow, "we said that we were prepared to go beyond what the law required to take care of our customers to ensure a seamless transition. In 2005, we reached a marketplace agreement with all public broadcasters for carriage during and after the digital transition. We also worked with Congress on a legislative proposal for commercial must carry stations, which ultimately was not included in final passage of the digital transition law. More recently, our industry developed a voluntary plan in which we would commit to three years of dual carriage for commercial must carry stations, taking into account the very limited but special circumstances of small cable systems."

McSlarrow concluded that "We are pleased that the FCC’s action today adopts cable’s carriage plan. And we are pleased that the FCC dropped an ill-considered mandate that would have turned back the clock on decades of digital technology innovation. We continue to urge the FCC to act quickly to take into account the special circumstances of very small systems, and to make clear that those systems have the flexibility to serve all their customers without a one-size fits all mandate."

This proceeding is titled "Carriage of Digital Television Broadcast Signals, Amendment to Part 76 of the Commission’s Rules". This item is FCC 07-170 in CS Docket No. 98-120.

FCC Adopts R&O and NPRM Regarding Program Access Rules

9/11. The Federal Communications Commission (FCC) adopted, but did not release, a Report and Order (R&O) and Notice of Proposed Rulemaking (NPRM) regarding its program access rules.

The FCC issued a short release [PDF] that describes this item. It states that the R&O portion "extends the ban of exclusive contracts between vertically integrated programmers and cable operators to October 5, 2012. A vertically integrated programmer is one that is affiliated with a cable operator or other covered MVPD’s. This ban had already been in place and was set to expire October 5, 2007."

The FCC's release adds that this item amends the FCC's program access complaint procedures.

The release states that the NPRM portion of this item seeks comments on "on two revisions to the program access complaint procedures. First, the NRPM seeks comment on whether to allow complainants to seek a temporary stay of any proposed changes to existing contracts that are the subject of a program access complaint. Second, the NPRM seeks comment on creating an arbitration-type step in the complaint process whereby the Commission may request, as part of its evaluation of the appropriate remedy, that the parties submit their best “final offer” proposals for the rates, terms, or conditions under review."

The release also states that the NPRM seeks comments on "concerns relating to programming tying arrangements, which refers to the practice of some programmers to require MVPDs to purchase and carry undesired programming in return for the right to carry desired programming. The NPRM seeks comment whether it is appropriate to preclude these tying arrangements and to instead require all programming services to be offered on a stand-alone basis to all MVPDs."

Finally, the release states that the NPRM seeks comments on "whether it would be appropriate to extend the Commission’s program access rules, including the exclusive contract prohibition, to terrestrially delivered cable-affiliated programming."

FCC Chairman Kevin Martin wrote in his statement associated with this item that "Today we determine that while competition has improved, vertically integrated programmers still have an incentive and ability to favor their affiliated cable operators over competitive MVPDs. The item we adopt today ensures that the competition in this market will continue unabated by retaining the ban on exclusive contracts for vertically integrated programmers for another five years. We therefore make sure that new entrants, in addition to existing players, will continue to have access to critical programming on a nondiscriminatory basis."

Walter McCormick, head of the USTelecom, stated in a release that "The program access rules ensure that consumers have a broad and diverse array of options in cable programming. We appreciate the Commission's commitment to pursue and implement policies that will help spur video competition and broadband deployment. This action is a strong step to help bring more offerings and competition to consumers."

This item is FCC 07-169 in MB Docket Nos. 07-29 and 07-198.

More FCC News

9/11. The Federal Communications Commission (FCC) announced but later removed several items on the agenda of its event titled "Open Meeting" held on the night of September 11, 2007. It removed adoption of a Memorandum Opinion and Order (MO&O) regarding requests for forbearance, submitted by AT&T, Verizon and Qwest, pursuant to 47 U.S.C. § 160(c), from Title II and Computer Inquiry requirements with respect to certain broadband services. The relevant FCC proceedings are numbered WC Docket No. 06-125 and WC Docket No. 06-147. See, notice of removal [PDF]. FCC Commissioner Robert McDowell wrote in a statement about this that "In a perfect world, the Commission today would have taken another step forward to de-regulate segments of the telecommunications industry where sufficient competition has grown to obviate the need for further government involvement. Thus, I am disappointed that Qwest felt it had to withdraw its forbearance petition regarding enterprise broadband services." He added that "I remain hopeful that, in future proceedings, we will be successful in streamlining burdensome regulations on enterprise broadband services while continuing to protect consumers and promoting competition, as required by Congress."

9/11. The Federal Communications Commission (FCC) announced but later removed several items on the agenda of its event titled "Open Meeting" held on the night of September 11, 2007. It removed adoption of a Second R&O regarding Section 621(a)(1)'s directive that local franchising authorities not unreasonably refuse to award competitive franchises and the application of the FCC's findings in its First R&O to incumbent providers. The FCC adopted its First R&O and Further Notice of Proposed Rulemaking [109 pages in PDF] in this proceeding on December 20, 2006, and released it on March 5, 2007. See, stories titled "FCC Adopts Order Affecting Local Franchising Authorities" in TLJ Daily E-Mail Alert No. 1,510, December 27, 2006, and "FCC Releases Text of Video Franchising Order and Further NPRM" in TLJ Daily E-Mail Alert No. 1,548, March 7, 2007. This proceeding is titled "Implementation of Section 621(a)(1) of the Cable Communications Policy Act of 1984 as amended by the Cable Television Consumer Protection and Competition Act of 1992" and numbered MB Docket No. 05-311. See, notice of removal [PDF].

9/11. The Federal Communications Commission (FCC) announced but later removed several items on the agenda of its event titled "Open Meeting" held on the night of September 11, 2007. It removed adoption of a Report and Order regarding rules governing the use of smaller antennas by Fixed Service operators in the 10.7 -- 11.7 GHz band. This proceeding is numbered WT Docket No. 07-54 and RM-11043. See, notice of removal [PDF].

More People and Appointments

9/11. Gregory Crawford was named Chief Economist at the Federal Communications Commission (FCC). He is a young Assistant Professor at the University of Arizona. See, FCC release [PDF]. He replaces Michelle Connolly, who worked at the FCC for one year. The FCC's Chief Economist is usually a short term outsider with little authority or clout at the FCC.

Go to News from September 6-10, 2007.