IN THIS WEEK'S ISSUE: FCC LAUNCHES FCC LAUNCHES HOMELAND SECURITY - - PDF document

October 5, 2006 Bulletin #111 IN THIS WEEK'S ISSUE: FCC LAUNCHES HOMELAND SECURITY BUREAU THE FCC MEDIA CIRCUS IS UNDERWAY A "LAME DUCK" SESSION COULD SAVE TELECOM REFORM ARRL PLANS APPEAL OF CERTAIN BROADBAND OVER POWERLINE RULES NOT SO FAST - NSA SURVEILLANCE PROGRAM CONTINUES FOR NOW FEDERAL COURT ROUNDUP Troutman Sanders Telecommunications Practice Group Socket to Me Archive Team Leader

Williams, Robert P. II 404.885.3438 404.962.6721 Benedict, Thane Hull, Gerit Kirsner, Matthew B. Kowalski, Raymond A. Lawhon, Joseph R. Ragsdale, Joy M. Schwalb, Eric J.. Still, William R.. Wilson, David K. Young, Benjamin L. Zdebski, Charles A..

FCC LAUNCHES HOMELAND SECURITY BUREAU By Ben Young

The Federal Communications Commission ("FCC") has formally launched a new "Public Safety and Homeland Security Bureau" to ensure that public safety needs are addressed in times of emergency. The official purpose of the new Bureau will be to promote a more efficient, effective and responsive

• rganizational structure and to better promote and address public safety,

homeland security, national security, emergency management and preparedness, disaster management, and related issues. The new Bureau will be responsible for many of the combined public-safety functions that were previously handled by several other bureaus and offices, including which assumed issues pertinent to wireless and wireline emergency communications, spectrum licensing, and general policy and planning. The Bureau will be structured to include Policy, Public Communications Outreach, and Operations and Communications Systems Analysis divisions. The current chief of the Public Safety and Critical Infrastructure division of the Wireless Technology Bureau will serve as the new deputy chief of the new Bureau's policy division. Commenting on this new Bureau, the FCC recently stated, "The events of September 11, 2001, and last year's hurricane season underscored America's dependence on an effective national telecommunications infrastructure." Moreover, "The new bureau will build on the Commission's longstanding commitment to meet the needs of public safety by promoting robust, reliable and resilient communications services in times of emergency." Among the issues most important to the process is interoperability, Acting Bureau Chief Ken Moran told the Commission. The FCC Order creating the new Bureau can be found here.

back to top

THE FCC MEDIA CIRCUS IS UNDERWAY By Ray Kowalski

Every now and again the Federal Communications Commission takes its show

• n the road, in order to bring government to the people. This week was one of

those times as the FCC convened the first of six public hearings on the subject

• f its media ownership rules. The hearings were held in Los Angeles and El

Segundo, California, where the commissioners listened to some seven hours

• f presentations.

Some of the panelists included representatives of the Screen Actors Guild, the Writers Guild of America, the Directors Guild of America, the Producers Guild

• f America, the Recording Artists Coalition, the Parents Television Council, the

National Religious Broadcasters, the Consumer Federation of America, and the CBS, FOX and NBC Networks. According to published accounts, hundreds

• f people attended, including the Rev. Jesse Jackson. The attendees

reportedly cheered, clapped and booed the various panelists. The audio recording of the hearings can be found here. The purpose of the hearings is to set the stage for the FCC's evaluation of its media ownership rules in terms of competition, diversity and localism. On

those issues, the commissioners got an earful. They heard that the media consolidation that resulted from the FCC's last revision of its media ownership rules has stifled minority access to media outlets, blocked local artists from the airwaves and endangered political debate. This proceeding is being held against a backdrop of bashing former Chairman Michael Powell by commissioners of both political stripes. It was under Powell's leadership that the FCC attempted the last revision of the media

• wnership rules. Commissioner Copps, a Democrat, in his opening remarks,

said, "Three years ago, under Chairman Michael Powell. . .the FCC severely cut back — some would say eviscerated — the rules meant to check Big Media's seemingly endless appetite for more consolidation. The agency did so under cover of night without seeking the input of the American people." Last month, it came to light that a 2004 FCC staff working paper on localism had never seen the light of day. In an extraordinary letter to Senator Barbara Boxer (D-Cal.), who had inquired about the report, Chairman Martin pledged to put the report in the record. In so doing, Martin said, ". . .I was not Chairman at the time this report was drafted. I had not seen — nor was I aware of — the draft report before you brought it to my attention." Martin's predecessor as Chairman was Michael Powell.

back to top

A "LAME DUCK" SESSION COULD SAVE TELECOM REFORM By Joy Ragsdale

With 10 days left before the scheduled September 29 recess, Senate Commerce Chairman Ted Stevens (R-Alaska) is resolute on reforming the telecommunications legislation which is evident by his most recent submission to Congress. On Saturday, September 30, 2006, the Senate Commerce Committee released its 283 page report on the Communications Opportunity, Promotion, and Enhancement Act of 2006 (COPE). Taking an unusual and creative step, the Senate Committee on Commerce, Science, and Transportation published on their website a double-sided, tri-fold marketing brochure that highlights key provisions in COPE. Senator Stevens vowed to move his telecommunications bill during the "lame duck session", a post-November election congressional session. Senator Stevens has acknowledged that his bill "obviously can't be done before we go into recess," but he is hopeful the Senate will schedule lame-duck floor action before adjournment. Below, are a few amendments made to the bill, as well as additional views of Senators Inouye, Dorgan, and Boxer. Amendments to Title II, Universal Service Reform

• Senator Stevens' amendment would clarify that the State preemption

provisions do not affect State or local tax laws.

• Senator Rockefeller would clarify that IP-enabled voice service

providers are subject to payphone compensation rules.

• Senator Snowe and Rockefeller's amendment would establish new

performance goals for the universal service E-Rate program. Amendments to Title IX, Consumer Internet Bill of Rights

• Senator Stevens' amendment increases the monetary fines for

Internet neutrality violations from $11,000 to $500,000 each.

• Consumers are granted the right to buy stand-alone broadband

services or "naked DSL". Title V, Municipal Broadband, "Community Broadband Act" retains a role for states to regulate, in a neutral manner, municipal broadband networks under section 706 of the Telecommunications Act of 1996. This provision also encourages municipalities to partner with a private provider of advanced telecommunications capabilities and services. Finally, included in the report are the views of Senators Inouye, Dorgan, and

• Boxer. Together the senators expressed the bill disappointedly fails to

meaningfully advance the cause of competition and eviscerates important consumer protections. The senators state COPE overrides current state efforts

and laws to promote video franchising deployment. Finally, the senators express concern that the bill will exacerbate the "digital divide" through its failure to require cable and telephone network upgrades and investments. Supporters and opponents of deregulatory telecommunications legislation believe Senator Stevens has a slim change in passing his sponsored legislation because he has yet to garner the 60 votes needed to limit debate. With billions of lobbying and investment dollars on the line, it will be interesting to see the results of last-minute lobbying efforts to block, pass or alter the measure before Congress adjourns.

back to top

ARRL PLANS APPEAL OF CERTAIN BROADBAND OVER POWERLINE RULES By Ben Young

The National Associates for Amateur Radio ("ARRL") recently announced its intention to ratify plans to appeal in federal court certain aspects of the FCC's Part 15 rules governing broadband over powerline ("BPL") systems. Assuming that the Executive Committee signs off on the strategy this weekend, the ARRL will file a Notice of Appeal by October 22 with the US District Court of Appeals for the D.C. Circuit. According to ARRL Chief Executive Officer David Sumner, "This decision was made after careful review of the FCC's October 2004 BPL Report and Order and of the August 2006 Memorandum Opinion and Order that dealt with petitions for reconsideration." ARRL has previously stated its belief that the FCC's has consistently ignored issues related to the "flawed application" of BPL on licensed radio services, in favor of decisions to permit the use of BPL technology without substantial regulation.

back to top

NOT SO FAST - NSA SURVEILLANCE PROGRAM CONTINUES FOR NOW By William R. Still, Jr.

As reported in the August 24, 2006 bulletin of Socket to Me, a federal judge in Detroit issued an injunction against the NSA warrantless surveillance program in favor of plaintiffs from the ACLU and others. Judge Anna Diggs Taylor delayed implementing her permanent injunction pending the outcome of the Administration's appeal, which, according to the Washington Times, was filed immediately. On October 4, 2006, the Sixth Circuit Court of Appeals stayed Judge Taylor's injunction pending the outcome of the government's appeal. The ruling by the three judge panel was based on the "traditional factors governing injunctive relief: (1) whether the applicant has demonstrated a substantial likelihood of success on the merits; (2) whether the applicant has demonstrated a substantial likelihood of success on the merits; (3) whether issuance of the stay will substantially injure the other interested parties; and (4) where the public interest lies." A copy of the ruling can be found here. The government is scheduled to submit its arguments on the substance of the issue by October 13, with the response expected a month later. No matter the

• utcome at the Sixth Circuit, this case is likely going to the Supreme Court for

final resolution.

back to top

FEDERAL COURT ROUNDUP By Gerit Hull

FCC Tower Siting Historic Preservation Rule Upheld CTIA - The Wireless Association v. FCC, 2006 U.S. App. LEXIS 24256 (D.C.

• Cir. 2006). The court of appeals upheld an appeal of an FCC rule adopting the

Nationwide Programmatic Agreement ("NPA") regarding tower construction. The NPA prescribes categories of tower siting activities that are exempt from the FCC's implementation process related to the National Historic Preservation Act ("NHPA"), puts in place procedures for identifying properties that are potentially eligible for listing on the National Register of Historic Places (the "Register"), sets standards for archaeological surveys and defines adverse visual effects, among other things. CTIA had challenged the rule based on the FCC's determination that the construction of wireless communications towers is an "undertaking" subject to section 106 of the NHPA, and the FCC's determination related to eligibility for listing on the Register. In upholding the rule, the court determined that the FCC tower licensing process is an "undertaking" by way of the FCC's authority over assuring that air safety precautions are in place and because the FCC is responsible for assuring compliance with federal environmental laws, such as the National Environmental Policy Act ("NEPA"). Further, the court rejected CTIA's argument that only properties formally determined to be eligible by the Secretary of the Interior were eligible for listing on the Register. Instead, the court affirmed the FCC's reliance on the federal Advisory Council on Historic Preservation's determination that properties meeting certain eligibility criteria are also eligible for listing.

back to top

FOR MORE INFORMATION The Troutman Sanders LLP Newsletter is intended to provide general information about legal and regulatory utility developments which may be of interest. It is not intended to be comprehensive nor to provide specific legal advice and should not be acted or relied upon as doing so. If you would like further information or specific advice, please contact our

• ffice.