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Telecom/IT Policy Highlights

Volume: 4.06
June 2004

Microsoft Word version / June 2004 TiPH (278kB)

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Contents:
Overview
Policy / Legislative Activities
Regulatory Activities
Judicial Activities
Research / Reports
Events
Newsletter Info
  • Overview

    Telecommunications officials in Washington spent the first days of June awaiting a decision from the U.S. Solicitor General on whether or not to appeal the D.C. Court of Appeals’ opinion in the case USTA v. FCC. The Court of Appeals, which threw out FCC rules requiring local telephone competition to share their unbundled network elements with competitors, left the Bush administration in an unusual position, torn between a political position favoring the FCC rules (and therefore lower local phone rates for consumers) and a policy position favoring the D.C. Court’s opinion (removing a heavy regulatory burden from the local telecom market). The Solicitor General announced on June 9 that the government would not appeal the case, a decision which one official described as “consistent with administration views.” It is unclear to what extent the Bush administration was involved with the Solicitor General’s decision or on what basis it was made; some lawyers (such as Kenneth Starr) have suggested that a decision not to appeal is based more on a question of federal regulatory authority than on any specific telecommunications policy question. [Comments made at an event by the Progress & Freedom Foundation: http://www.tvworldwide.com/events/pff/040602/]. Nonetheless, the decision had a tremendous impact on telecommunications policy. For more analysis, see “Judicial Activities” below.

    Meanwhile, the Congress utilized its committee system to look into a number of telecommunications issues. The Senate Commerce Committee held a hearing on the “VoIP Regulatory Freedom Act,” a controversial bill that attempts to settle a number of regulatory issues involving Voice over Internet Protocol (VoIP). The bill is contentious both for its timing and for its content; some Senators have expressed concern about addressing VoIP outside the context of overall telecom regulation reform, and others have questioned whether the provisions of the “Regulatory Freedom Act” are adequate for law enforcement access, emergency services, and universal service obligations. The Senate Commerce Committee also examined proposals to complete the transition to all-digital television, even though that probably won’t occur until the end of the decade.

    A House Committee gave approval to a bill to fight spyware, continuing to favor the approach of letting the Federal Trade Commission (FTC) promulgate regulations and handle violations as unfair trade practices. This was the same tactic used in the CAN-SPAM bill passed last December to fight unsolicited email. The FTC announced this month that it would not create a “do not email” list out of concerns about security and limited effectiveness. Officials on Capitol Hill seem more optimistic about fighting spyware, although, like spam, there is little information available about the nature of those distributing it.

    Finally, the National Telecommunications and Information Administration released two reports on the strategic use of spectrum resources. These reports stem out of the President’s Spectrum Policy Initiative announced last year, and they represent the Commerce Department’s first actionable movements on the matter. These reports were released just after a GAO report found that federal agencies had little incentive to use spectrum efficiently. More details are available below.


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  • Policy / Legislative Activities

    Anti-Spyware Bill Approved By House Committee
    06.24.04 – The House Energy and Commerce Committee approved an anti-spyware bill called the Safeguard Against Privacy Invasions Act [H.R. 2929] by a vote of 45-4, clearing the bill for a vote by the full House. The bill, sponsored by Reps. Mary Bono (R-CA) and Ed Towns (D-NY), targets spyware programs, which are defined as software that can transmit personal information from a person’s computer without that person’s authorization. Unlike an earlier anti-spyware bill introduced in the Senate in March, the bill does not specify what types of spyware activities are illegal. Instead, the bill takes the same approach as it used in fighting spam—delegating authority to the Federal Trade Commission. Under H.R. 2929, the FTC would be in charge of promulgating regulations so as to ensure that regular networking software that regularly communicates information with other computers would not be declared illegal. The bill authorizes the FTC to prohibit the use of any spyware program without explicit authorization. To read a copy of the bill, see [http://thomas.loc.gov/cgi-bin/query/z?c108:H.R.2929:]. [Source: Library of Congress]

    Bill To Increase Penalties for Identity Theft Passes Congress
    06.25.04 – Both the House of Representatives and the Senate passed the Identity Theft Penalty Enhancement Act [H.R. 1731] by voice votes, sending the bill to the White House for the president’s signature. As reported in last month’s edition of Telecom/IT Policy Highlights (4.05), the Identity Theft Penalty Enhancement Act imposes mandatory two-year minimum prison sentences for aggravated identity theft, which involves unlawfully using another person’s personal information in the commission of certain felonies. Congressman Bobby Scott (D-VA) led opposition to the bill, arguing that mandatory minimum sentences would be ineffective and burdensome for the courts. However, supporters of the bill said the Act was needed to deter the high levels of identity theft reported by the FTC. President Bush is expected to sign the bill shortly. [Source: Library of Congress]

    House Subcommittee Examines Cyber Security in Federal Government
    06.02.04 – The House Government Reform Subcommittee on Technology and Information Policy held a hearing entitled “Who Might Be Lurking At Your Cyber Front Door? Is Your System Really Secure? Strategies and Technologies to Prevent, Detect, and Respond to the Growing Threat of Network Vulnerabilities.” Subcommittee Chairman Adam Putnam (R-FL) said he was concerned about the rising incidence of attacks on network vulnerabilities in the federal government. The subcommittee’s hearing focused primarily on the efforts of federal agencies to implement FISMA, the Federal Information Security Management Act, for which the subcommittee gave the federal government a “D” rating in 2003. Testifying before the committee were officials from the Office of Management and Budget, the General Accounting Office, the Department of Homeland Security, the Department of Defense, the Federal Aviation Administration, and a number of private cyber security experts. Copies of testimony can be found at [http://reform.house.gov/TIPRC/Hearings/EventSingle.aspx?EventID=1085]. [Source: House Committee on Government Reform]

    Inducement of Copyright Act Introduced in Senate
    06.22.04 – Senator Orrin Hatch (R-UT) has introduced a piece of legislation called the Inducing Infringement of Copyrights Act of 2004 [S. 2560] in order to combat the use of peer-to-peer file-sharing programs such as KaZaA, which Hatch accuses of “encouraging children, teenagers, and others to commit illegal or criminal acts of copyright infringement.” [Statement: http://hatch.senate.gov/index.cfm?FuseAction=PressReleases.Detail&PressRelease_id=1083&Month=6&Year=2004]. The bill adds a new section to federal copyright statutes, making it illegal for a person to “intentionally induce” an act of copyright infringement. The bill defines inducement as aiding, abetting, inducing, or procuring an act of infringement. The bill says that intent to induce can be found by looking at any number of acts available to an alleged inducer, including a reliance on infringing activity for commercial viability.

    The bill comes in response to opinions by federal courts that file-sharing software makers appear to be making their living off of copyright infringement but cannot be held liable under traditional copyright laws. The traditional standard for copyright liability was decided by the Supreme Court in the Sony Betamax case [Sony Corp. v. Universal City Studios, 1984]. Under that case, the maker of a copying device cannot be held liable solely because that device could be used to infringe copyright; it is for that reason that VCRs are legal under the Copyright Act. However, some technology experts think the bill is too broad and would have a chilling effect on new product development. Gary Shapiro, President & CEO of the Consumer Electronics Association, urged the Judiciary Committee to schedule a hearing on the bill to discuss these concerns. “This new and separate copyright cause of action is so broad that…it essentially would grant copyright owners veto power over the introduction of any new technology for home and personal use,” Shapiro said. [Statement: http://www.ce.org/press_room/press_release_detail.asp?id=10494]. The bill is supported by both Democratic and Republican leaders in the Senate, but it is unclear whether the bill will be placed near the top of the legislative docket. A copy of the bill can be found at [http://thomas.loc.gov/cgi-bin/query/z?c108:S.2560:]. [Sources: Office of Senator Orrin Hatch, Senate Judiciary Committee, Consumer Electronics Association]

    Junk Fax Bill Receives Hearing In Subcommittee
    06.15.04 – Rep. Fred Upton, Chairman of the House Subcommittee on Telecommunications and the Internet, held a hearing on his bill, the Junk Fax Prevention Act of 2004 [H.R. 4600]. The bill directs the General Accounting Office to conduct a study on junk faxes (unsolicited facsimile advertisements) and amends the Communications Act to allow businesses to send faxes to customers with whom they have an existing relationship. Congress banned junk faxes in 1991 when it passed the Telephone Consumer Protection Act (TCPA), but the FCC created an exemption for established business relationships. However, the FCC reversed that conclusion last summer [Report and Order, FCC 03-153], stating that an established relationship was not sufficient to show consent to receive faxes. That rule change takes effect at the beginning of 2005 unless Congress acts to pass H.R. 4600 or a similar bill. For more information about the subcommittee’s hearing, see
    [http://energycommerce.house.gov/108/Hearings/06152004hearing1301/hearing.htm].
    To view the legislation, see [http://thomas.loc.gov/cgi-bin/query/z?c108:H.R.4600:]. [Sources: Library of Congress, House Committee on Energy and Commerce]

    Low Power FM Stations Would Get Boost From Senate Bill
    06.04.04 – Senator John McCain (R-AZ) introduced S. 2505, an unnamed bill to repeal laws that restrict the FCC’s ability to give licenses to low power FM (LPFM). The FCC authorized LPFM in 2000 [FCC 00-19] as a short-distance radio service (usually three miles or less) intended for use by localized communities or underrepresented groups in small areas. Congress, citing the concerns of FM broadcasters, passed restrictions on the FCC’s licensing power. The bill introduced by Senator McCain would eliminate those restrictions and allow the FCC to license new low power FM stations. The bill comes largely in response to criticisms of the consolidating radio market, which has resulted in fewer locally operated stations. One of the Congressional findings listed in the bill reads as follows: “A commitment to localism—local operations, local research, local management, locally-oriented programming, local artists, and local news and events—would bolster radio listening.” The bill has been referred to the committee chaired by Senator McCain. To read a copy of the bill in its entirety, see [http://thomas.loc.gov/cgi-bin/query/z?c108:S.2505:]. [Source: Library of Congress, Federal Communications Commission]

    Public Safety Interoperability the Focus of Subcommittee Hearing
    06.23.04 – The House Subcommittee on Telecommunications and the Internet held a hearing on the status of interoperability between public safety communications systems in the federal government. Dr. David Boyd, Deputy Director of the Office of Systems Engineering and Development at the Department of Homeland Security (DHS), gave a report on the DHS plan to increase interoperability in the U.S., which includes the development of an office specifically devoted to that task. FCC Wireless Bureau Chief John Muleta also testified; his statements and other information can be found online at [http://energycommerce.house.gov/108/Hearings/06232004hearing1310/hearing.htm]. [Source: House Committee on Energy and Commerce]

    Senate Committee Holds Hearing on “VoIP Regulatory Freedom Act”
    06.16.04 – The Senate Commerce Committee conducted a full hearing on the issues surrounding a new bill [S. 2281] addressing the regulatory treatment of Voice over Internet Protocol (VoIP). The “VoIP Regulatory Freedom Act,” sponsored by Senator John Sununu (R-NH), addresses many issues related to VoIP such as intercarrier compensation, universal service, public safety, law enforcement access, and accessibility to people with disabilities. The hearing consisted of two panels, one dealing with law enforcement surveillance and one addressing other issues including E-911 and universal service.

    At issue in the first panel was whether VoIP services should be required to comply with the wiretapping design standards set forth by the Communications Assistance for Law Enforcement Act (CALEA) of 1994. S. 2281 would treat VoIP service providers in the same manner as Internet service providers, who were exempted from CALEA requirements. Testifying before the committee, Deputy Assistant Attorney General Laura Parsky said that electronic surveillance is a critically important tool for law enforcement agencies and asked the committee to reconsider this approach, stating “CALEA requirements should apply to VoIP and other IP-enabled service providers.” James X. Dempsey, executive director of the Center for Democracy & Technology, noted, however, that the FBI has failed to demonstrate that VoIP actually presents a problem for surveillance officials. Further, Dempsey argued that extending the regulatory burden of CALEA to the Internet is unnecessary—“law enforcement already has Internet surveillance abilities through other statutes and through the cooperation of service providers.”

    The second panel featured five speakers who addressed a host of issues including E-911 and rural service. Georgia Public Service Commissioner Stan Wise, Chairman of the National Association of Regulatory Utility Commissioners (NARUC), told Senators that “S. 2281 does insufficient justice to the related issues of inter-carrier compensation and universal service, both of which are inextricably linked to VoIP.” Senator Sununu’s legislation, he said, “suffers from a technology-specific approach that is driven, in large part, by the haste with which the issue has been pursued thus far.” NARUC has advocated a functional approach to regulation rather than a technical one, i.e., regulating by the service that is provided rather than the method that is used to provide it. Wise admitted that this requires a “rigorous, intellectually honest dialogue about which public interest obligations are attached to which features of a particular service.”

    Congressional leaders have hinted at plans on revising the Telecommunications Act during the next full session (2005-06), but the Sununu bill would separate VoIP with stand-alone legislation, leaving any new Telecom Act to address other issues separately. The reason for this “haste” is the Federal Communications Commission (FCC) rulemaking proceeding [FCC 04-28] on IP-Enabled Services. The FCC is looking to establish a regulatory framework for VoIP and other Internet-based telecommunications services. However, some members of Congress fear that an FCC-established framework would be inherently burdensome on the industry because of interconnection requirements or other mandates. Senator Sununu’s legislation would pre-empt efforts by the FCC to regulate VoIP by treating it as an information service, prohibiting both the FCC and the states from regulating it.

    Additionally, S. 2281 would exempt VoIP from taxation and from access charges. Bans on Internet taxes and access charges have been widely supported by the Congress in recent years, and in this way the “VoIP Regulatory Freedom Act” treats VoIP as a natural extension of the Internet. The most important aspect of the legislation is its hands-off approach to regulation, revealed most clearly by Act’s purpose: “to prevent the imposition of harmful obligations or a patchwork of multiple and discriminatory regulations on the providers of applications that utilize the Internet protocol.” Because VoIP combines aspects of the Internet and aspects of telephony, the battle over VoIP regulation will entail a showdown between the hands-off, market approach and a more deliberate regulatory approach traditionally adopted by the FCC. [Sources: Senate Commerce Committee, Federal Communications Commission]

    Senate Committee Reviews Transition to Digital Television
    06.09.04 – The Senate Commerce Committee held a hearing on proposals to ease the transition to all-digital television, when broadcasters will cease to transmit analog signals and rely on digital-only broadcasts (DOBs). Congress initially set a deadline of 2006 for this transition, but it has given the FCC the authority to renew analog licenses past that deadline if digital TV (DTV) technology is not widely available to consumers. The Commerce’s Committee’s hearing addressed the last phase of the DTV transition, when stations will phase out their dual digital/analog broadcasts and use DOBs. There are two primary concerns involved with this transition. The first is spectrum reallocation, which will be substantial due to the inefficiencies of the analog TV band. The second concern is for consumers, who will by that time be required to purchase special equipment to view telecasts. The first to testify at the hearing was FCC Media Bureau Chief Kenneth Ferree, who outlined his Bureau’s plan to complete the DTV transition by January 2009. Others testifying in the committee questioned the wisdom of this “hard date,” as well as other aspects of the FCC’s plan. Michael Calabrese, Vice President and Director of the Spectrum Policy Program at the New America Foundation, also presented a plan for the DTV transition, outlining a series of proposals to ease the burden on consumers and criticizing the producer subsidy model that has been adopted by the FCC.

    While some have questioned the deadlines proposed for DTV transition as unrealistically early, some leaders in Congress (such as House Commerce Committee Chair Joe Barton and Senate Commerce Committee Chair John McCain) have questioned why the transition could not be completed earlier in order to retrieve the TV band spectrum for public safety and other consumer uses (such as wireless broadband). The 700 MHz Band (TV Channels 52-69) is a particularly valuable part of the spectrum that experts on the panel said could have enormous impact on the digital economy. A full list of testimony from the hearing can be found at [http://commerce.senate.gov/hearings/witnesslist.cfm?id=1220]. The House Subcommittee on Telecommunications and the Internet also held a hearing on the FCC Media Bureau’s proposal; information may be obtained at [http://energycommerce.house.gov/108/Hearings/06022004hearing1289/hearing.htm]. [Sources: Library of Congress, Federal Communications Commission, Senate Committee on Commerce, Science, and Transportation, House Committee on Energy and Commerce]


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  • Regulatory Activities

    “Do Not Spam” List Gets Thumbs Down From FTC
    06.15.04 – The Federal Trade Commission issued a report to Congress on the feasibility of a national “Do Not Email Registry,” stating that at best, a registry would “have no impact on spam and, at worst, result in more spam.” The report, which Congress mandated as part of the CAN-SPAM Act of 2003, said that the inability to authenticate the origin of email makes enforcement of any “do not email” registry all but impossible. The FTC studied several potential models for establishing a “do not email” list, but eventually concluded that no such list would be very effective.

    The result of the report was not unexpected. The FTC said at the beginning that creating an effective “no spam” list would be unlikely to occur with current technology. As the FTC explains in its report, email protocols that make it easy to use also make it easy for spammers to mask their identities. The problem is frustrating for anti-spam policymakers, who have witnessed continued violations of the CAN-SPAM Act since its passage six months ago. The FTC announced its first enforcement actions at the end of April, charging two high-profile spammers with violations of the Act’s provisions. However, these actions took months of investigation by federal agents, demonstrating the difficulties presented by tracking emails.

    The FTC outlines these problems and their potential solutions in the report it issued to Congress. A copy of the report is available for download on the FTC’s spam website, [http://www.ftc.gov/spam/]. The website also includes tips for consumers on how to avoid spam scams and how to limit the amount of unsolicited email arriving in their inboxes. [Source: Federal Trade Commission]

    FCC: Only We Can Regulate Radio Interference
    06.24.04 – In response to questions about the FCC’s role in resolving interference problems in areas with lots of unlicensed radio use (such as hotels, airports, and conference centers), the FCC issued a public notice [DA 04-1844] affirming its exclusive authority under the Communications Act to regulate radio frequency interference issues. The statement appeared to be aimed at “homeowners associations, landlords, and other third parties [who try] to prohibit customer use of small antennas when consumers install and operate them as unlicensed devices.” The notice says that Commission rules allow consumers to operate antennas under the FCC’s Part 15 guidelines, and no other authority can deny consumers that right unless necessary for safety or historic preservation. The rule clarification, issued by the FCC’s Office of Engineering and Technology, frustrates the efforts of some airport authorities to regulate Wi-Fi and other wireless networks in their facilities. View the notice at [http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-04-1844A1.txt]. [Sources: Federal Communications Commission]

    FCC Revises Rules For Educational Spectrum, Facilitating Wireless Broadband
    06.10.04 – The FCC issued a Report and Order and Further Notice of Proposed Rulemaking [FCC 04-135] to revise the rules regulating the spectrum in the 2495-2690 MHz band (2.5 GHz band). The rules affect both educational institutions, which hold licenses for short-range broadcasts which the FCC calls Instructional Television Fixed Service (ITFS), and cellular wireless providers, who hold licenses for Multipoint Distribution Service (MDS) in the same frequency band. Under the old rules, ITFS bands and MDS bands were interleaved, creating interference problems. The new rules establish distinct band segments for high-power (ITFS) and low-power (MDS) operations.

    This ruling is significant because the 2.5 GHz band has been eyed by the wireless industry as ripe for cellular broadband development. The Order, which renames MDS as Broadband Radio Service (BRS), will likely make it easier for license holders to negotiate for enough spectrum to provide broadband services. FCC Chairman Michael Powell commented that “the magnitude of today’s ruling is apparent when one considers that this band is double the spectrum that sparked the WiFi explosion at 2.4 GHz” (emphasis original). Powell added that with the FCC’s action, ITFS and BRS licensees will now have to opportunity to deploy “innovative technologies including low-power, mobile wireless broadband technologies.” [Text of Powell’s remarks can be found at http://hraunfoss.fcc.gov/edocs_public/attachmatch/DOC-248267A2.txt].

    The FCC hopes that the ruling will allow cellular broadband to compete with DSL and cable, giving consumers more choices and, it hopes, lower prices. However, there are still obstacles in the way. The FCC’s Order did not change the eligibility restrictions on ITFS licenses, meaning that educational institutions cannot freely sell their spectrum to BRS providers. Further, it is unclear how the transition to the new band plan will operate; the Order establishes a three-year timeline for spectrum negotiations, but other details remain to be determined. The FCC has asked for comment on transition options in its Further Notice of Proposed Rulemaking. To read the FCC’s release about the Order, see [http://hraunfoss.fcc.gov/edocs_public/attachmatch/DOC-248267A1.txt]. [Source: Federal Communications Commission]

    Telecommunications Relay Service Rules Redefined
    06.10.04 – The FCC issued a Report and Order [FCC 04-137] redefining some of the rules related to the Telecommunications Relay Service (TRS), which allows people with hearing and speech disabilities to communicate via telephone with people without such impairments. The FCC’s ruling is designed to expand TRS outreach efforts by the Commission, continue TRS cost-recovery provisions, and prohibit companies from restricting TRS use. The FCC also adopted a Further Notice of Proposed Rulemaking to examine the IP relay and Video Relay Service components of TRS, including questions about whether these should be mandatory and how their costs should be handled. FCC Chairman Michael Powell said he looked forward to hearing from the disability community about VRS, which he says has enormous potential for driving broadband services. To read the Order and Further Notice of Proposed Rulemaking at [http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-04-137A1.txt]. [Source: Federal Communications Commission]


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  • Judicial Activities

    Solicitor General Forgoes Appeal of FCC Order, Local Competition Rules Expire
    06.09.04 – U.S. Solicitor General Theodore Olson decided not to appeal a decision handed down by the U.S. Court of Appeals for the D.C. Circuit in the case USTA v. FCC, which struck down local telephone competition rules established by the FCC. The rules, which the FCC passed in 2003 as parts of its Triennial Review Order [FCC 03-36], required incumbent local telephone companies (BellSouth, Verizon, Qwest, and SBC) to share parts of their networks with competitors (such as AT&T or Sprint) at regulated rates. The FCC decided not to appeal the ruling. The rules, known as unbundling requirements, were designed to promote competition and keep local phone service prices low. The decision by the U.S. Solicitor General not to appeal on behalf of the government is important because it means the Supreme Court will likely decide not to hear the case when it convenes in the fall.

    The Triennial Review Order was the FCC’s third attempt since the 1996 Telecom Act to require local phone companies to share their networks, all of which have been rejected by the Courts. The litigation over unbundling requirements left an uncertain market for local telephone service, which the industry has tried unsuccessfully to solve with a series of negotiations. Proponents of the rules argued that they were necessary to keep local telephone service competitively priced. House Judiciary Chairman James Sensenbrenner (R-WI) and Ranking Member John Conyers (D-MI) issued a statement saying that the decision not to appeal “undermines the clear intent of Congress in the 1996 Telecommunications Act,” adding that “it could stifle the enormous competitive gains made in the telecommunications industry in the last several years.”

    Indeed, after the rules expired on June 13, AT&T announced in a release [http://www.att.com/news/item/0,1847,13121,00.html] that it would stop competing in for residential local and long-distance customers in seven states. “Without these rules, AT&T has been forced to reassess its ability to serve residential customers in the other 39 states in which it provides local and long-distance service,” said the statement. FCC Chairman Michael Powell said that the regional phone companies have agreed not to raise rates until the end of the year, but emphasized that the FCC was taking action “to adopt a final order on local telephone rules as soon as possible.” See Chairman Powell’s statement at [http://hraunfoss.fcc.gov/edocs_public/attachmatch/DOC-248393A1.txt]. Meanwhile, commercial negotiations over local telephone rates will continue.

    The decision not to appeal USTA v. FCC is “consistent with the Administration’s views,” according to a statement by Acting Assistant Secretary For Communications and Information Michael D. Gallagher. Gallagher emphasized that commercial negotiations are “the best way to achieve a higher degree of market-based competition within the telecommunications industry.” [Statement: http://www.ntia.doc.gov/ntiahome/press/2004/mdgstatement_06092004.htm]. House Energy and Commerce Committee Chairman Joe Barton (R-TX) and Telecommunications Subcommittee Chair Fred Upton (R-MI) issued a joint statement echoing Gallagher, noting “this is the right decision to facilitate new investment in the telecommunications sector that can help continue the economic growth that we have witnessed so far this year.” [Statement: http://energycommerce.house.gov/108/News/06092004_1305.htm]. Although the Supreme Court may ultimately decide to review the case, industry negotiations will continue to take the central role in resolving the dispute over local phone competition. [Sources: Federal Communications Commission, National Telecommunications and Information Administration, House Committee on the Judiciary, House Committee on Energy and Commerce, AT&T]

    Supreme Court Strikes Down Law Against Child Pornography On Internet
    06.29.04 – In a close 5-4 ruling, the Supreme Court announced that the Child Online Protection Act (COPA) “likely violates the First Amendment.” The case, Ashcroft v. American Civil Liberties Union, centers on Congress’s attempt to censor Internet materials that are “harmful to minors” by requiring age verification techniques such as requiring a credit card. COPA violations carry a $50,000 fine and 6 months in prison. The Supreme Court reviewed the case after a federal District Court issued an injunction against the law’s enforcement because it determined that the restrictions on speech issued by COPA are not likely to be the most effective means of achieving Congress’ goal. While the Court did not technically rule the law unconstitutional, it said that COPA probably did not meet the requirements of the First Amendment and sent it back to the lower court for a trial on the subject.

    The Child Online Protection Act was Congress’s second attempt to censor pornography on the Internet. The Communications Decency Act of 1996 was invalidated by the Supreme Court in Reno v. American Civil Liberties Union because “it was not narrowly tailored to serve a compelling governmental interest and because less restrictive alternatives were available.” The constitution requires that government restrictions on the content of speech must both serve a compelling governmental interest and be less restrictive than a plausible alternative. In this case, as in Reno before, the Supreme Court is saying that other options (such as the use of filtering software) would be just as effective without restricting free speech. The ACLU filed the suit arguing that COPA was too restrictive, requiring reproductive health information websites, for example, to censor their language or require age authentication. COPA will remain legally unenforceable pending the outcome of a trial. The Court’s opinion, written by Justice Anthony Kennedy, can be read online (PDF) at [http://www.supremecourtus.gov/opinions/03pdf/03-218.pdf]. [Source: U.S. Supreme Court]


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  • Research / Reports

    Commerce Department Releases Spectrum Policy Reports, Recommendations
    06.24.04 – The National Telecommunications and Information Administration (NTIA), a branch of the Department of Commerce, released two reports on spectrum policy as part of the President’s Spectrum Policy Initiative, announced last year. The first report contains recommendations from the Federal Government Spectrum Task Force, an interagency group of officials chaired by former Deputy Commerce Secretary Samuel Bodman. The federal Task Force makes 15 recommendations of changes to spectrum management policy. Highlights include:

    > Consistent methods for assessing new technologies - establishing a standard for evaluating the efficiency and effectiveness of spectrum across federal agencies
    > Adoption of a career development program – to train new spectrum management personnel in needed disciplines
    > Capital planning process – incorporating spectrum resources into the planning process used by the Office of Management and Budget
    > Incentives for use of efficient radiocommunications systems – NTIA should implement incentives for agencies to maximize spectrum value where appropriate > National Strategic Spectrum Plan – produced by NTIA from reports of federal agencies submitted biennially
    > Spectrum sharing innovation test bed – would establish a pilot program to share spectrum between federal government and non-federal government users

    A copy of the full report can be found at [http://www.ntia.doc.gov/reports/specpolini/presspecpolini_report1_06242004.htm].

    The second report issued by NTIA included recommendations from local governments and private sector responders. This report included 9 recommendations for spectrum management changes. These include:

    > Review and improve international spectrum management policies – NTIA should collaborate with the FCC, the State Department, and industry to review international efforts at harmonizing spectrum policies
    > Establish economic and efficiency incentives – the FCC should have the permanent authority to conduct spectrum auctions and collect fees for use, providing an incentive to use spectrum more efficiently
    > Improve the use of information technology to modernize spectrum management – to replace existing manual procedures
    > Identify and address unsatisfied spectrum requirements for public safety – through coordinated work with federal, state, and local agencies

    The full copy of the second report is available online at
    [http://www.ntia.doc.gov/reports/specpolini/presspecpolini_report2_06242004.htm]. The Commerce will begin implementing the recommendations immediately. [Source: National Telecommunications & Information Administration]

    FCC Releases Status Reports on Internet Access, Local Telephone Competition
    06.04.04 – The FCC released two reports this month from its Wireline Competition Bureau on the status of telecommunications by the end of 2003. The first report relates to access to high-speed Internet services, which are defined as those with transmission rates of at least 200 kilobits per second (kbps) in at least one direction (upload or download). The report indicates that the number of high-speed lines increased 42% in 2003, with a year-end total of 28.2 million lines. The majority of these lines (58.3%) are serviced by cable modems, while phone-line-based DSL accounted for approximately 34% of subscribers.

    The FCC also issued a report on local telephone competition, compiled from information submitted by telephone companies with more than 10,000 lines. The report found that incumbent local exchange carriers (ILECs) lost market share to competitive carriers in 2003. The report includes tables showing how multiple carriers service the major population centers in the country. Both reports can be downloaded (PDF) online at [http://www.fcc.gov/wcb/iatd/stats.html]. [Source: Federal Communications Commission]

    GAO Releases Report on Spectrum Management In Federal Agencies
    05.28.04 – The General Accounting Office conducted a study of nine federal agencies and found that better knowledge is needed for them to utilize technology to improve spectrum efficiency. GAO found that agencies make improvements to their spectrum efficiency only when needed to complete a specific mission requirement, noting that the lack of economic consequences gives agencies no incentive to use technologies to increase spectrum efficiency. The report makes six specific recommendations, including proposed joint efforts by the NTIA Administrator and the FCC Chairman to assess the feasibility of redefining the spectrum allocation system to facilitate new technologies. The full report can be viewed (PDF) at [http://www.gao.gov/new.items/d04666.pdf].

    Mayors Report: Interoperable Communications Better Local than State, Federal
    06.28.04 – The U.S. Conference of Mayors, at its 72nd Annual Meeting in Boston, published a 192-city survey on the interoperability of radio communications. The survey was conducted as part of the Conference’s “National Action Plan for Safety and Security in America’s Cities,” which was adopted one month after the terrorist attacks of September 11, 2001. The report indicates that 77 percent of cities report interoperable communications across police and fire departments and 74 indicate interoperability with neighboring city police and fire departments. However, 80 percent of the cities reported they did not have interoperable communications with the federal Department of Homeland Security or the Department of Justice. The most striking finding is that funding interoperable communications systems is a tremendous challenge for cities. For more details and statistics, see
    [http://www.usmayors.org/72ndAnnualMeeting/interoperabilityreport_062804.pdf]. [Source: U.S. Conference of Mayors]

    Study Examines Digital Divide From 2G Mobile Telecommunications Diffusion
    06.01.04 – According to an article in the journal Telecommunications Policy [June/July 2004], information about the adoption of mobile wireless technologies may yield insights into the nature of the digital divide. In “Wireless diffusion and mobile computing: implications for the digital divide,” Jonathan Wareham, Armando Levy, and Wei Shi examine the diffusion of 2G telephony during the 1990’s and use that data to develop policy implications for bridging the gaps of Internet inclusion. Wareham, Levy, and Shi find that income and occupation are strong factors in technology adoption, but notes that education appears to be less strong an indicator than previously thought. The group suggests that price and product differentiation strategies, as well as advertising, for mobile computing services could help to bridge the digital divide. [Telecommunications Policy]


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  • Events


    06.01.04 – The Cellular Telecommunications & Internet Association (CTIA), the wireless industry’s largest trade group, is holding its Wireless I.T. & Entertainment 2004 conference in San Francisco, CA on October 25-27, 2004. Now in its eighth year, the conference focuses on “everything that is mobile data,” featuring a convergence of the entertainment and wireless industries. More information about the conference, including how to register, can be found at [http://www.wirelessit.com/index.cfm]. [Source: Cellular Telecommunications & Internet Association]


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  • Newsletter Info

    Center for Advanced Communications Policy
    Telecom/IT Policy Highlights Volume 4.06
    June 2004
    Alan Bakowski, Editor

    Telecom/IT Policy Highlights presents legislative, regulatory, legal, and other items of interest pertinent to information, telecommunications, and related technology policy and research. For additional information regarding the information provided in this report, or if there are newsworthy items that should be included in future editions, please contact , Research Specialist, or , Associate Director of Research.
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