Telecom/IT Policy Highlights
Volume: 4.01
December 2003 / January 2004
Contents:
Overview
Policy / Legislative Activities
Regulatory Activities
Judicial Activities
Items of Interest
Events
Newsletter Info
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Overview
The last month of 2003 and the first month of 2004 were relatively exciting for telecommunications and information technology policy. Voice over Internet Protocol (VoIP) received a lot of attention from policymakers, principally FCC Chairman Michael Powell, who gave a number of speeches outlining the need for caution in regulating the new industry. The biggest forum for policy speeches was the annual Consumer Electronics Show in Las Vegas, where Senator John E. Sununu (R-NH) called for action from Congress to prevent states from regulating the services.
The battle over VoIP regulation will be fought out in the second session of the 108th Congress, where lobbying has already been heated. The U.S. Telecom Association has been active in pushing for new universal service regulations, and it has aired television ads in selected markets to get its message out to the public. It is as yet unclear whether there will be action on these issues in the coming months, as election year priorities will keep Congress focused on other interests.
Negotiations over a new ban on Internet access taxes continue between some tech-savvy officials who want to protect the industry from taxation and a number of ex-governors who have seen state revenues fall through the floor. Additionally, a separate fight over a nationwide Internet sales tax scheme remains lurking in Congress, although it is not likely to come out of committee this year.
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Policy / Legislative Activities
CAN-SPAM Act Takes Effect
12.16.03 – President Bush signed the anti-spam bill passed by Congress after years of discussion. The Controlling the Assault of Non-Solicited Pornography and Marketing Act (CAN-SPAM Act, PL 108-187), requires unsolicited commercial emails to have relevant subject lines, working return email addresses, functioning opt-out options, and valid postal addresses. Violations may be fined up to $250 per email, with an overall cap of $6 million. Furthermore, the law directs the Federal Trade Commission to investigate the feasibility of creating a “do-not-spam” list. Critics of the law note that it does not prohibit spam; it merely prevents spammers from being deceptive and allows people to opt out of future mailings. The law took effect January 1, 2004, and spam watchers note that compliance with the new law is low, due to the fact that prosecutions take a long time and much of the spam originates from outside of U.S. jurisdiction. Experts agree that it will be many months before the law’s effectiveness can be determined.
[Sources: The Washington Post, PC World]CREATE Act Would Protect Collaborative Research
01.21.04 – The House Judiciary Committee unanimously approved the Cooperative Research and Technology Enhancement Act (CREATE Act) [HR 2391] at its January 21st meeting. The legislation extends patent protection to research conducted jointly by multiple companies, universities, or research laboratories. Under a recent Court of Appeals ruling, collaborative research may not be patentable under Section 103(c) of the Patent Act. The CREATE Act, if passed, would promote cooperative research under joint agreements.
[Source: Library of Congress]Database Protection Bill Approved By Judiciary Committee
01.21.04 – The House Judiciary Committee voted 16-7 to approve the Database and Collections of Information Misappropriation Act [HR 3261]. The bill allows holders of databases and other gathered information to sue persons who misappropriate their data for commercial purposes. Databases are generally not subject to copyright protection because they usually contain information that is not original. The bill contains exceptions for educational and scientific research, news reporting, and for hyperlinks to databases. Critics of the bill say the protections are unnecessary and will lead to excess litigation.
[Source: Library of Congress]House Subcommittee Hearing on Communications Competition
01.28.04 – On February 4, the House Subcommittee on Telecommunications and the Internet holds a hearing entitled “The Current State of Competition in the Communications Marketplace.” The witness list and prepared testimony are available on the hearing website (link below), along with further information and a link to the webcast (Real Player required for video).
[http://energycommerce.house.gov/108/Hearings/02042004hearing1164/hearing.htm].
[Source: House Committee on Energy and Commerce]Internet Access Tax Ban Awaiting Action
01.30.04 – Lawmakers in Congress have yet to move forward with legislation that would ban states from taxing Internet access. The previous ban expired on Nov. 1, allowing state legislatures the opportunity to levy new taxes in 2004. The House of Representatives passed a bill last September that would have extended the ban permanently, but similar legislation has met serious opposition in the Senate from Senators such as Lamar Alexander (R-TN) who have criticized the bill for hurting state revenues. The previous moratorium contained an exemption for states that had begun taxing access before Oct. 1, 1998, and as many as 29 states had taken advantage of that provision. An agreement on a new moratorium is expected in the coming months, but negotiations continue regarding the length, scope, and exemptions in the ban.
[Source: InternetNews.com]Omnibus Appropriations Affect Telecommunications and IT
01.23.04 – The President signed into law the Consolidated Appropriations Act of 2004 [HR 2673], containing the FY2004 appropriations for many federal cabinet departments and lesser agencies. The bill contains a number of technology-related items, many of them substantial changes in law. The law includes:
• Funding for rural development in distance learning, telemedicine, and broadband under the Rural Utilities Service of the Department of Agriculture. The Act includes principal amounts of $300 million in loans for direct distance learning and telemedicine loans and over $600 million for direct broadband telecommunications loans. The money will be used for conversion to digital systems and broadband development in eligible rural areas. [Title III]
• Implementation of the Children’s Internet Protections Act (CIPA), requiring libraries to have Internet safety policies certified in order to receive funding for technology grants. Additionally, schools must be CIPA-certified in order to receive educational technology funding. [Sections 516-517]
• An amendment of the Communications Act to increase the national TV ownership cap from 35 percent to 39 percent. This provision stems from the debate that began during the summer when the FCC passed new media ownership rules allowing networks to own stations reaching up to 45 percent of the national audience. [Section 629]
• A provision banning federal agencies from monitoring individuals’ use of the Internet. Under this provision, no federal agency may use funds to collect personally identifiable information relating to an individual’s use of government or non-government operated websites. Exceptions for law enforcement, aggregate data collection, Internet security, and voluntary submission of information are included. [Section 633]
To view a copy of Consolidated Appropriations Act as signed by the President (350 pages), search for “HR 2673” at [http://thomas.loc.gov].
[Sources: The Washington Post, Library of Congress]Georgia: Bill Would Establish Universal Information Access for the Blind
01.15.04 – A bill introduced in the Georgia House of Representatives [HB 1055] seeks to create an audible Universal Information Access System (UIAS) for blind and otherwise print-disabled individuals. The bill authorizes the Georgia Public Service Commission to contract out the service, which would run 24 hours per day. The bill has been favorably reported by the House Committee on Health and Human Services, where its sponsor, Representative Buddy Childers (D-Rome) serves as Chairman.
[Source: Georgia General Assembly]Pennsylvania: Wireless E-911 Fee Established
12.30.03 – Pennsylvania Governor Ed Rendell signed HB 1018 into law, an act establishing a wireless E-911 services fund for emergency management purposes. Taking effect in March, wireless customers in the state will be required to pay a $1 fee each month for enhanced 911 services.
[Source: Office of Pennsylvania Governor]
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Regulatory Activities
Caller ID Rules Go Into Effect For Telemarketers
01.29.04 – Effective January 29, telemarketers must transmit caller identification (caller ID) information with all of their sales calls, regardless of their calling system. The FCC adopted the rules last July as directed by the Telephone Consumer Protection Act, but the rules only became effective January 29, 2004. Under the rules, no telemarketer can block caller ID information from customers, even if there is an established business relationship with the customer. The rule gives individuals with caller ID the opportunity to make a do-not-call request to the telemarketer by dialing the number transmitted to them. Nonprofit organizations are exempt from this rule. To view a copy of the public notice, see [http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-04-206A1.txt].
[Source: Federal Communications Commission]FCC Asks For Comments on Smart Radio Development
12.17.03 – In a continuing effort to enhance the access and efficiency of the nation’s spectrum resources, the FCC adopted a Notice of Proposed Rulemaking and Order [FCC 03-322, ET Docket 03-108] regarding proposals for expanding deployment of cognitive radio systems. These “smart” radio systems have the capacity to adjust their operation to the radiofrequency environment, utilizing unused spectrum to optimize performance while avoiding interference. The Notice seeks comment on proposals to enhance operational flexibility for service providers, especially those in rural and underserved areas, including proposals allowing secondary markets for licensees to lease spectrum to third parties. Additionally, the Notice seeks comment on how smart radio can promote opportunistic use of spectrum by unlicensed devices and increase interoperability for public safety first responders. Comments will be due 75 days after publication in the Federal Register, which is pending. To view a copy of the Notice, visit
[http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-03-322A1.txt].
[Source: Federal Communications Commission]Intelligent Transportation Systems Radio Service Rules Adopted
12.17.03 – The FCC adopted rules in a Report & Order [FCC 03-324, WT Docket 01-90] establishing licensing for services in the 5.9 GHz Band. This band is allocated to Dedicated Short-Range Communications (DSRC) in the Intelligent Transportation Systems (ITS) Radio Service. DSCR allows wireless connections between high-speed vehicles and roadside units, allowing for a number of public safety applications including electronic toll collection and warnings about road construction and accidents. The rules will allow both public safety and non-public safety users to receive licenses in the band, a move which the FCC believes will encourage the development of innovative services. To view the press release, see
[http://hraunfoss.fcc.gov/edocs_public/attachmatch/DOC-242309A1.txt].
[Source: Federal Communications Commission]Internet Telephony Presents Considerable Regulation Challenge
01.26.04 – The FCC held a forum on December 1 on the topic of Voice over Internet Protocol (VoIP) where industry leaders and policy specialists investigated the possibility of regulating VoIP services. Chairman Michael Powell made it clear in statements at the Forum and at other events such as the Consumer Electronics Show that he is strongly opposed to regulating the technology, feeling that “IP-based services should evolve in a regulation-free zone.” [FCC Forum on VoIP, Opening Remarks, available online at [http://hraunfoss.fcc.gov/edocs_public/attachmatch/DOC-241775A1.txt].At the same time, the California Public Utilities Commission, which last September told six VoIP service providers they needed a license to operate as phone companies, reversed its position, saying it would take its time before implementing any regulations. While Chairman Powell has clearly stated his disfavor of economic regulation, others on the Commission have pointed out the problems with leaving VoIP untouched. “The proliferation of VoIP services [has consequences on] universal service, homeland security, 911 services, accessibility by people with disabilities, and encouraging the build-out of advanced telecommunications services,” said Commissioner Copps at the Dec. 1 Forum. [http://hraunfoss.fcc.gov/edocs_public/attachmatch/DOC-241765A1.txt].
The question of whether states can regulate BoIP at al has been challeneed in federal courts, whose rulings have been inconsistent on this matter. On October 6, the 9th Circuit Court of Appeals struck down the FCC’s declaration that Internet via cable modem is an information service, implying that states could regulate it. Just eleven days later, a District Court in Minnesota ruled that VoIP offered by Vonage is an information service, not a telecommunications service, and therefore is protected from regulation. Until the Supreme Court or Congress steps in to clarify the issue, there will not be a uniform judicial response to questions involving regulation of Internet telephony.
U.S. Senator John Sununu announced his intention in January to bring up legislation in Congress that would prohibit states from regulating VoIP, giving the FCC jurisdiction over the young industry. Meanwhile, Chairman Powell has said the Commission will soon begin a review of what regulations might be necessary to guarantee interoperability, network integrity, and continued development of the technology.
[Sources: CNET News.com, Federal Communications Commission]President Bush Signs Directive on Critical Infrastructure
12.17.04 – President Bush signed a directive establishing a national policy on the prioritization and protection of critical infrastructure in the United States. The directive, Homeland Security Presidential Directive/Hspd-7, replaces a Clinton administration edict from 1998. The action directs federal departments and agencies to identify key resources for protection from terrorist attacks, and emphasizes the importance of protecting cyberspace from security threats. All federal agencies and departments will be required to submit plans for protecting critical infrastructure and resources under their jurisdiction by July 2004.
A copy of the directive is available in a press release from The White House at [http://www.whitehouse.gov/news/releases/2003/12/20031217-5.html].
[Source: The White House]
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Judicial Activities
Appeals Court Ruling Protects Privacy Against RIAA Lawsuits
12.19.03 – In a three-judge panel ruling, the U.S. Court of Appeals for the D.C. Circuit ruled that the Recording Industry Association of America (RIAA) cannot subpoena Internet Service Providers (ISPs) to ask for the names of customers suspected of pirating music online. The Court held that the Digital Millennium Copyright Act only allows subpoenas to be issued to an ISP “engaged in storing on its servers material that is infringing or the subject of infringing activity.” Despite its loss in the case, RIAA v. Verizon Internet Services, Inc., the RIAA has stated it will continue to go after file sharers. The industry group intends to file John Doe lawsuits aimed at the users of specific IP addresses suspected of being used for copyright infringement. The RIAA would then subpoena ISPs for the names of those using the specified addresses. The John Doe lawsuits are more protective of Internet users’ privacy rights. To view the opinion (PDF), see [http://pacer.cadc.uscourts.gov/docs/common/opinions/200401/03-7015b.pdf].
[Sources: U.S. Court of Appeals for the D.C. Circuit, The Washington Post]Third Circuit Ruling Allows Employers To Search Employee Email
12.10.03 – In a ruling by the U.S. Court of Appeals for the Third Circuit, companies who host email servers for their employers are not prohibited by the Electronic Communications Privacy Act (ECPA) from reading emails stored on the server. The ECPA prohibits interception of electronic communication, but the Court ruled that mail stored on a server is not in transit but rather in storage. The Court further ruled that an exception in the ECPA for service providers allows companies who host their own servers to read information stored on them. In the case, Fraser v. Nationwide, agent Fraser was terminated for disloyalty by Nationwide Mutual Insurance Co. after the company found letters to other insurance companies by Fraser on its email server. To read the opinion in PDF format, see
[http://www.ca3.uscourts.gov/opinarch/012921p.pdf].
[Source: U.S. Court of Appeals for the Third Circuit]Supreme Court Hears Arguments in Municipal Telecom Case
01.12.04 – The Supreme Court held oral arguments in the case Nixon v. Missouri Municipal League (No. 02-1238) this month. The case centers on the provision in the Telecommunications Act of 1996 barring states from “prohibiting the ability of any entity” to provide telecommunications services (47 U.S.C. § 253(a)). Municipalities brought the suit to seek federal pre-emption of a 1997 Missouri state law blocking them from providing telecommunications services. The Court’s ruling should clarify the power of states to regulate their own political subdivisions, and it may definitively decide whether municipalities are included in the phrase “any entity.” The Court’s ruling is expected in a few months.
[Sources: The St. Louis Post-Dispatch, U.S. Supreme Court]Supreme Court Limits Antitrust Suits Under Telecommunications Act
01.13.04 – In a unanimous decision, the Supreme Court held that a violation of the 1996 Telecommunication’s Act’s network sharing requirements does not constitute a violation of antitrust law. Writing for the majority, Justice Scalia stated that the failure of incumbent carriers to open their networks to competitors as required by the 1996 Act is not a “refusal to deal” prohibited by antitrust law. The decision is important because it will affect a number of antitrust lawsuits pending in federal court. Violations of the 1996 Act can result in fines or other burdens imposed by regulators, but when antitrust laws are violated, triple damages are awarded. The case is Verizon Communications Inc. v. Law Offices of Curtis V. Trinko [02-682]. The opinion is available in PDF format online at [http://www.supremecourtus.gov/opinions/03pdf/02-682.pdf].
[Source: The Washington Post, U.S. Supreme Court]AT&T Wireless Entertains Bids, May Be Bought By Cingular
01.21.04 – AT&T Wireless reportedly received a bid of around $30 billion from Cingular Wireless, the Atlanta-based venture between SBC and BellSouth. If the acquisition were to go through, Cingular, the nation’s 2nd-largest wireless carrier, would surge to #1 in wireless customers with a combined 45 million. Cingular does face competition in the deal from Japanese firm NTT DoCoMo, a part-owner of AT&T Wireless, and from Nextel Communications, the country’s fifth-largest wireless provider. AT&T intends to keep receiving offers until February 13, and it expects to make a final decision on acquisition by February 29. Consolidation in the wireless industry is made possible in part by the FCC’s decision last January to eliminate the cap on spectrum use per city by a single provider.
[Source: Internetnews.com]Rural Satellite Forum Highlights FCC Policies
01.27.04 – The FCC held a Rural Satellite Forum highlighting its priorities to bring 21st century communications to all Americans. FCC Chairman Michael Powell said he placed “ a high priority on ensuring that Americans living and working in rural and remote parts of our Nation have access to the same kind of high quality, advanced communications services as do Americans living in cities and suburbs.” [Chairman Powell’s remarks available at http://hraunfoss.fcc.gov/edocs_public/attachmatch/DOC-243221A1.txt]. The Forum also focused on emerging satellite technologies with respect to education, telemedicine, public safety, farming, and entertainment.
[Source: Federal Communications Commission]Georgia: Everett Becomes New Public Service Commission Chairman
01.13.04 – Doug Everett will serve as Chairman of the Georgia Public Service Commission (PSC) during 2004. Mr. Everett was elected to the PSC in 2002 representing Southwest Georgia. He currently resides in Albany, where he served three terms on the City Commission. He also has experience as a legislator in the Georgia House of Representatives. Commissioner Angela Speir from Gwinnett County will serve as Vice-Chairman. There are five members on the Public Service Commission; the chairmanship rotates annually.
[Source: Georgia Public Service Commission]
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Items of Interest
FCC Releases Tenth Annual Report on Video Competition
01.28.04 – The FCC released its tenth annual report on competition in the delivery of video programming, finding Americans have more options and access to programming than at any time in the past. The report includes key findings on industry growth, cable rates, cable and telephone service convergence, broadband, wireless systems, and broadcast television. The report addresses pressures that have caused cable rates to rise and analyzes integration in the market. To view the 147-page report, see [http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-04-5A1.txt].
[Source: Federal Communications Commission]GAO Recommends Strategy for Defense Dept. Bandwidth Procurement 12.01.03 – The U.S. General Accounting Office published a report [GAO-04-206] finding the Department of Defense’s process for acquiring commercial satellite bandwidth to be lacking in flexibility and accountability. The report recommends that the Defense Information Systems Agency (DISA) implement a “strategic management approach” in order to meet users’ needs in a fair, timely, and cost-effective manner. To view a copy of the report, see [http://www.gao.gov/atext/d04206.txt]. [Source: U.S. General Accounting Office]
Wireless Number Portability Brings Complaints 01.28.04 – The Federal Communications Commission announced it had received 4,734 informal complaints related to wireless local number portability (LNP) as of January 23. Most of the complaints concerned delays in porting numbers from one carrier to another. AT&T Wireless was mentioned in 2,297 of the complaints, with Sprint PCS mentioned the 2nd most frequently (1,119 times). The figures do not necessarily indicate wrongdoing. View report at [http://hraunfoss.fcc.gov/edocs_public/attachmatch/DOC-243262A1.txt]. [Source: Federal Communications Commission]
Music Piracy Down Dramatically In Final Quarters of 2003
01.04.04 – Results from the Pew Internet Project Survey found the number of Internet users downloading music dropped in half between spring and late fall of 2003. The survey of adults 18 and over revealed that only 14% of respondents downloaded music in November and December of 2003, down from 29% six months earlier. The combined report using statistics from file-sharing applications gathered by comScore Media Matrix and a nationwide phone survey of Internet users found the dramatic decrease began after the Recording Industry Association of America (RIAA) began its public campaign against copyright infringement in July. The spring survey found that 4% of Internet users were downloading files on a given day; only 1% of Internet users were downloading files during the fall survey. For more information and access to the report, see [http://www.pewinternet.org/reports/toc.asp?Report=109].
[Source: The Pew Internet & American Life Project]“Net Neutrality” the Subject of Cato Institute Report
01.12.04 – The Cato Institute, a libertarian think tank, has published a policy analysis of so-called “net neutrality” regulations which have been proposed to allow Internet users open access to all online content and services. The analysis concludes that calls for preemptive regulation are unjustified and makes calls for further recognition of property rights in network systems. The report is authored by Adam D. Thierer, director of telecommunications studies at Cato. More information on the study can be viewed at [http://www.cato.org/pubs/pas/pa-507es.html].
[Source: Cato Institute]Public Key Infrastructure Report Shows Challenges
12.01.03 – The U.S. General Accounting Office conducted a report [GAO-04-157] on the status of public key infrastructure (PKI) in federal agencies. Public key infrastructure is the software, hardware, and support services that allow for authenticated electronic identification such as digital signatures. In a study of 24 agencies, the GAO found major implementation challenges and discovered that participation in PKI networks was lower than expected. To view the report, see [http://www.gao.gov/atext/d04157.txt].
[Source: U.S. General Accounting Office]Report Explains Future Possibilities of Unlicensed Wireless
12.15.03 – The New America Foundation published an easy-to-read, non-technical report on the potential for unlicensed wireless to change communications drastically. Radio Revolution: The Coming Age of Unlicensed Wireless, authored by Kevin Werbach, is a primer for 21st century wireless communication technology and policy. Mr. Werbach served as Counsel for New Technology Policy at the FCC from 1994 to 1998 and contributed to the development of U.S. e-commerce policy. To download the report for free, see [http://www.newamerica.net/index.cfm?pg=article&pubID=1427].
[Source: The New America Foundation]
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Events
CTIA WIRELESS 2004 Conference To Be Held In Atlanta
01.29.04 – The Cellular Telecommunications & Internet Association (CTIA) will hold its Wireless 2004 conference at the Georgia World Congress Center March 22-24, 2004. CTIA WIRELESS 2004 bills itself as the largest, most comprehensive show in the wireless industry. The conference will feature keynotes from CEOs of many major wireless firms, breakout sessions on network technologies, and hundreds of exhibitors.The Wireless Rehabilitation Engineering and Research Center on Mobile Wireless Technologies for Persons with Disabilities (Wireless RERC) is one of the sponsors at the event and will be producing a seminar on Mobile Wireless Technologies Persons with Disabilities. CTIA is providing all friends of the Wireless RERC free Platinum Pass registration (go to [www.ctiashow.com/freepass] and enter pass code AP). Early registration for the conference ends February 6. For more on the seminar, visit [http://www.wirelessrerc.org]. Conference information is available at
[http://www.ctiawireless2004.com].
[Source: CTIA]
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Newsletter InfoCenter for Advanced Communications PolicyTelecom/IT Policy Highlights Volume 4.01
December 2003 / January 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.BACK TO TOP OF PAGE