Georgia Institute of TechnologyCenter for Advanced Communications Policy
Atlanta SkylineTechnology Square at night

Telecom/IT Policy Highlights

Volume: 5.05
May 2005

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

    The Federal Communications Commission (FCC) issued a landmark decision [FCC 05-116] requiring VoIP service providers to implement enhanced 911 systems for its customers. The action by the FCC represents the first major regulation of IP-enabled services; previously, the FCC’s rulings had mostly exempted Internet services from regulation of any sort. However, the Commission’s four members (there is currently one vacancy) voted unanimously to require access to emergency services after a series of publicized incidents about VoIP subscribers who were unable to connect to public safety officials in a timely fashion.

    Meanwhile, Congress focused on another security threat: spyware. The House passed two different anti-spyware bills, and the Senate, which has moved much more slowly on this issue, held a hearing on the topic before the full Senate Commerce Committee. Action by Congress may not be sufficient to tackle the problem; some experts testified that new spyware legislation would likely be redundant and fare no better than Congress’s anti-spam law enacted in 2003.

    A more divisive telecommunications debate focused on the digital television (DTV) transition, currently set to end on December 31, 2006, or when 85% of households in a market are capable of receiving DTV signals, whichever is later. According to statistics from the Consumer Electronics Association (CEA), DTV penetration is currently around 15-18%. A number of policymakers led by House Commerce Committee Chair Joe Barton (R-TX) want to affix a hard deadline to the end of analog TV transmission, and it appears likely that December 31, 2008, will be the date agreed upon as negotiations continue.

    Two new reports from the Government Accountability Office (GAO) survey the use of radiofrequency identification (RFID) technology and wireless networks by Federal government agencies and find both to pose some risks to privacy and security. Additionally, a private-sector report finds electronic surveillance of employees is increasing. See the “Research/Reports” below for more details.


    BACK TO TOP OF PAGE
  • Policy / Legislative Activities

    Barton to Push for Hard Date on Ending DTV Transition 05.26.05 – House Energy and Commerce Committee Chairman Joe Barton (R-TX) is pushing for a hard deadline for broadcasters to return their analog spectrum to the Federal government and complete the transition to digital television (DTV). In 1997, Congress created a deadline of December 31, 2006 for the shift, but allowed that date to be pushed back if fewer than 85% of TV viewers in a given market did not own DTV equipment (required for receiving digital TV broadcasts). According to statistics from the Consumer Electronics Association (CEA), DTV penetration is currently around 15-18%. Public safety officials, who want to use part of the powerful TV band spectrum for emergency radio communications, testified before the Telecommunications Subcommittee in support of a firm deadline of December 31, 2008. The rest of the relinquished analog TV spectrum is expected to be devoted to wireless broadband services, which would be especially beneficial for rural and underserved areas. The auction for the TV band spectrum is expected to generate at least $10 billion, according to an estimate by the Congressional Budget Office.

    The Commerce Committee is currently working on draft legislation that would impose a firm deadline of Dec. 31, 2008, require a consumer education campaign about the shift to DTV, and require cable operators to carry broadcasters’ digital signals. It is not clear whether the draft legislation would change the FCC’s February 2005 ruling [FCC 05-27] that cable operators need only carry one digital channel per broadcaster and need not carry both analog and digital signals simultaneously. Details on the legislation are currently being negotiated, but leaders appear to be holding firm to the 2008 transition deadline. Barton has indicated that he will attach the bill to a budget reconciliation package because the revenue gained from spectrum auctions can offset other spending in the budget. Details on the draft legislation are available at [http://energycommerce.house.gov/108/News/05232005_1535.htm].

    Earlier in the month, House Judiciary Committee Chairman James Sensenbrenner (R-WI) introduced a bill entitled the “TV Consumer Choice Act” [H.R. 2354] that would explicitly prohibit the FCC from requiring digital tuners to be included in new television receivers. In 2002, the FCC fixed a deadline of July 1, 2007 for requiring the inclusion of digital tuners on most TV sets [FCC 02-230]. Text of the legislation is available at [http://thomas.loc.gov/cgi-bin/query/z?c109:H.R.2354:]. If this measure passed, it would likely extend the time required for 85% of TV viewers to acquire digital TVs, which are more expensive than regular TVs. However, if Barton’s 2008 deadline is approved, consumers who rely on broadcast television would be forced to spend extra to watch programming in 2009. Senate Commerce Committee Chairman Ted Stevens (R-AK) has indicated possible support for legislation that would require analog TVs sold after the DTV transition date to come with set-top converter boxes . This would be a cheaper option than purchasing a digital television set.
    [Sources: House Energy and Commerce Committee, National Journal, CEA]

    Email Privacy Bill Introduced in Senate 04.28.05 – Senator Patrick Leahy (D-VT), ranking member of the Senate Judiciary Committee, introduced the Email Privacy Act of 2005 [S. 936], which is aimed at reversing an opinion (USA v. Councilman) by the U.S. Court of Appeals for the First Circuit which declared that email is not covered by the Electronic Communications Privacy Act (ECPA). The Court’s reasoning was the language of the Wiretap Act (which was amended by the ECPA) only forbade the “interception” of emails while they are in transit, not while they are stored on servers waiting to be read. The case is currently being reconsidered by the Court of Appeals. A copy of the original opinion is available at [http://www.ca1.uscourts.gov/cgi-bin/getopn.pl?OPINION=03-1383.01A]. Text of S. 936 can be found at [http://thomas.loc.gov/cgi-bin/query/z?c109:S.936:].
    [Sources: Library of Congress, U.S. Court of Appeals for the First Circuit]

    High-Tech Congressional Working Group Announces Agenda 05.05.05 – House Speaker Dennis Hastert (R-IL) kicked-off the formation of the High-Tech Working Group of Congressional Republicans that will tackle a series of technology issues during the 109th Congress. Goals for the Group include: extending the Federal research and development tax credit, reducing trade barriers through agreements such as CAFTA (the Central American Free Trade Agreement), promoting the use of health information technology, and reducing barriers to broadband adoption. A more comprehensive list of the Working Group’s priorities is available at [http://www.house.gov/apps/list/press/va06_goodlatte/htw109.html].
    [Sources: Offices of Speaker Dennis Hastert, Rep. Bob Goodlatte]

    House Passes Two Anti-Spyware Bills; Senate Considers Similar Legislation 05.23.05 – After an attempt at reconciliation failed, the House passed two separate anti-spyware bills by overwhelming margins. The Spy Act [H.R. 29], sponsored by House Commerce Committee Chair Joe Barton (R-TX), defines spyware-related activities as deceptive trade practices to be regulated by the Federal Trade Commission (FTC). In this way, the Spy Act operates similarly to the CAN-SPAM Act of 2003. Among the activities prohibited by the Spy Act: taking unsolicited control of another’s computer, collecting personally identifiable information without authorization, and removing or disabling security software. Text of the Spy Act can be found at [http://thomas.loc.gov/cgi-bin/query/z?c109:H.R.29:]. The other anti-spyware bill that passed the House was entitled the I-SPY Act [H.R. 744], and it establishes criminal penalties for the unauthorized installation of a program on someone’s computer that is used to obtain personal information, weaken the security of that computer, or commit another federal crime. Both Acts provide exemptions for law enforcement and security maintenance actions. The I-SPY Act also authorizes appropriations for the Justice Department to investigate and prosecute against spyware and phishing schemes. Text of the I-SPY Act is available at [http://thomas.loc.gov/cgi-bin/query/z?c109:H.R.744:].

    In the Senate, the Commerce Committee held a hearing on the problem of spyware, but did not address any specific legislation. Everyone at the hearing attested to the growing problem of spyware on the Internet, but witnesses were less certain of what Congress could do to stop it. Ari Schwartz, Associate Director for the Center for Democracy and Technology (CDT), noted in his written testimony that the FTC and the Dept. of Justice already have the authority under existing fraud and computer crime statutes to prosecute the worst spyware offenders, and “there is only so much that new legislation can do.” The CDT, which is a non-profit organization devoted to promoting privacy and civil liberties with respect to the Internet, recommends four steps to combat spyware: (1) better enforcement of existing laws, (2) better consumer education, (3) more improved anti-spyware technologies, and (4) legislation that outlines basic privacy protections for the Internet. A copy of Mr. Schwartz’s testimony and other information about the Committee hearing are available at [http://commerce.senate.gov/hearings/witnesslist.cfm?id=1496].

    Currently, there are two active spyware bills in the Senate. The SPY-BLOCK Act [S. 687] is similar to the Spy Act. [Text: http://thomas.loc.gov/cgi-bin/query/z?c109:S.687:]. A second bill [S. 1004] was introduced on the day of the Senate hearing by Sen. George Allen (R-VA), and it also relies on the FTC to prosecute those who proliferate spyware, but it authorizes the Commission to recoup the profits generated from spyware to fund its operations. Text of the bill is available at [http://thomas.loc.gov/cgi-bin/query/z?c109:S.1004:]. Neither bill has yet been acted upon.
    [Sources: House Energy and Commerce Committee; Senate Commerce Committee; Library of Congress]


    BACK TO TOP OF PAGE
  • Regulatory Activities

    Cable Ownership Limits to be Reexamined by FCC 05.17.05 – The FCC issued a Second Further Notice of Proposed Rulemaking [FCC 05-96] reexamining the Commission’s limits on horizontal and vertical ownership in the cable TV market. The existing limits, which were designed to foster competition and diversity in video programming, were reversed by a Federal appeals court in 2001. The Commission began to investigate new rules in 2001, but it is reexamining the regulations due to changes in the cable TV market, which has recently seen much consolidation.

    The FCC was authorized by the 1992 Cable Act to place restrictions on both the amount of subscribers served by cable operators (horizontal limits) and on the amount of content provided by affiliates of the cable operator (vertical limits). In 1993, the FCC passed regulations forbidding cable operators from serving more than 30% of all subscribers and allowing no more than 40% of cable channels to be devoted to affiliate-produced programming. The Cable Act’s constitutionality was upheld in 2000, but the FCC’s initial regulations were struck down because the Commission failed to sufficiently justify the 30% and 40% figures it came up with. The Commission’s new action seeks information about the legal framework governing cable ownership and potential economic bases for establishing particular limits that will withstand judicial scrutiny. For a copy of the FNPRM, see [http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-05-96A1.txt].
    [Source: FCC]

    CAN-SPAM Act Clarifications Called for by FTC 05.12.05 – The Federal Trade Commission (FTC) issued a Notice of Proposed Rulemaking [FTC Project No. R411008] to solicit comments on several topics related to enforcement of the CAN-SPAM Act, most related to the ability of spam victims to “opt-out” of receiving future emails. One important issue addressed in the rulemaking is a proposed redefinition of who the “sender” of an unsolicited email is when there are multiple parties advertising; the FTC wants to determine more easily which parties are responsible for complying with “opt-out” provisions. Additionally, the FTC wants to shorten the time period for senders to comply with “opt-out” requests from ten days to three. The Commission also intends to clarify that recipients need only provide their email address and email preferences in order to validly opt out of future mailings; no fees may be charged for the privilege of opting out. Written comments may be submitted to the FTC until June 27, 2005. Text of the proposed regulations is available at
    [http://a257.g.akamaitech.net/7/257/2422/01jan20051800/edocket.access.gpo.gov/2005/05-9353.htm].
    [Source: Federal Register, FTC]

    FCC Requires Enhanced Emergency 911 Access for VoIP Services 05.19.05 – The FCC issued a First Report and Order and Notice of Proposed Rulemaking [FCC 05-116] requiring certain VoIP service providers to provide enhanced 911 (E911) calling for their customers. The action comes after a number of publicized incidents in which VoIP customers’ 911 calls did not reach emergency responders in time because they did not reveal callers’ locations or had to be rerouted through secondary or administrative lines at public safety answering points (PSAPs). Affected families testified before the Commission at the meeting announcing the decision.

    The Order requires all VoIP service providers that connect to the public switched telephone network to provide enhanced 911 service to their customers as a standard option. This means that all 911 calls must be directed to the local PSAP and contain information about the caller’s location and a call back number. The information about the caller’s location would be provided by consumers during VoIP service set-up. The new rules also require VoIP service providers to inform their customers of the limitations of their 911 services, and they prohibit incumbent local exchange carriers (ILECs) from refusing VoIP access to E911 networks. Accompanying the Order, the Notice of Proposed Rulemaking will examine ways in which E911 calls from VoIP phones can be relayed to the appropriate PSAP without relying on customers to identify their location during set-up. The new rules will be effective six months after the Order is published in the Federal Register, which will likely occur in July or August. They do not apply to Internet services that do not connect to the public telephone network. A press release from the Commission on the action is available at [http://hraunfoss.fcc.gov/edocs_public/attachmatch/DOC-258818A1.txt].
    [Source: FCC]


    BACK TO TOP OF PAGE
  • Judicial Activities

    Appeals Court Strikes Down Digital TV “Broadcast Flag” Rule 05.06.05 – The U.S. Court of Appeals for the D.C. Circuit struck down rules created by the FCC that required new digital TV (DTV) equipment to recognize a copy-protection mechanism known as a “broadcast flag.” The rules, which the FCC promulgated in 2003, required any equipment capable of receiving digital television content manufactured after July 1, 2005 to be capable of restricting “unauthorized redistributions of digital content”; the broadcast flag is a signal accompanying a DTV broadcast that indicates the material being transmitted is copyrighted and prohibits users from reproducing it. The FCC passed the broadcast flag regulations because they were concerned that if left unprotected, DTV content would be widely copied and reproduced, forcing all high-quality media to migrate from free broadcast TV to pay cable and other more secure transmission forms.

    Many groups objected to the broadcast flag regulations, saying it would prohibit them from recording broadcast content and replaying it as they had always done. The American Library Association filed a lawsuit to overturn the regulation, arguing the FCC has no authority to regulate TV devices when they are not actually in the process of receiving broadcasts. The U.S. Court of Appeals for the D.C. Circuit agreed, stating that Congress, during the seventy-year period since the Communications Act of 1934, never delegated to the FCC “such sweeping authority.” The debate over the broadcast flag can now only be held in Congress, not at the FCC. The opinion in the case, American Library Association v. FCC, can be found at [http://pacer.cadc.uscourts.gov/docs/common/opinions/200505/04-1037b.pdf].
    [Source: U.S. Court of Appeals for the D.C. Circuit]


    BACK TO TOP OF PAGE
  • Items of Interest

    FCC Commissioner Adelstein Addresses Public Interest Obligations of the Media 05.25.05 – In a speech delivered to The Media Institute, FCC Commissioner Jonathan Adelstein decried the commercialization of American media, saying that product placements and hidden marketing have undermined public confidence in broadcast television. Section 317 of the Communications Act requires broadcasters to identify the sponsors of aired material, and Commissioner Adelstein said that FCC intended to enforce that rule more vigorously in light of the controversy over some broadcast stations that recently aired government-produced video news releases without disclosing their source. However, Adelstein noted that it was commercialization and “payola” that was eroding public trust in media. “It is a cardinal right of every American to assume that radio and TV programs that appear to be based on authentic editorial judgments of the stations are in fact just that, unless the public is told otherwise,” Adelstein wrote in prepared remarks. “We have a right to know that people who present themselves to be independent, unbiased experts and reporters are not shills hired to promote a corporate – or governmental – agenda.” Currently, FCC regulations require disclosure by broadcasters as well as by those producing content for broadcast; failure to disclose can result in fines or license revocation. A text of Commissioner Adelstein’s prepared remarks can be found at [http://hraunfoss.fcc.gov/edocs_public/attachmatch/DOC-258962A1.txt].
    [Source: FCC]


    BACK TO TOP OF PAGE
  • Research / Reports

    Government Wi-Fi Networks Unsecure, GAO Finds 05.17.05 – A report [GAO-05-383] issued by the Government Accountability Office (GAO) finds that wireless networks set up by government agencies have many security flaws that leave them vulnerable to attacks. GAO found that agencies had not fully implemented key controls such as security policies, practices, and tools that enable secure wireless networks. In six agencies, wireless signals leaked outside of agency buildings onto private land or public streets, increasing the risk of unauthorized activity. The report recommends that Federal agencies not operate wireless networks until they can ensure their protection and security. Additionally, GAO recommends that wireless network security be added as a component of agencies’ information security programs, which are required by the Federal Information Security Management Act (FISMA). A copy of the report is available at [http://www.gao.gov/htext/d05383.html].
    [Source:GAO]

    RFID Use in Federal Government Raises Few Legal Issues, GAO Finds 05.27.05 – Few legal issues were raised by Federal agencies in a survey [GAO-05-551] conducted by the Government Accountability Office (GAO) on the use of radiofrequency identification (RFID) technology in government. Thirteen out of the twenty-four agencies surveyed indicated that they used RFID or had specific plans to do so, mostly for the tracking and identification of assets such as case files, containers, evidence, shipments, and other materials. Many agencies reported using RFID for security or safety reasons, such as tracking radioactive and hazardous materials (Environmental Protection Agency, Dept. of Energy, NASA), monitoring weapons (Dept. of Homeland Security), and managing travel documents such as visas and passports (Depts. of Homeland Security, State). Only one agency indicated that its implementation of RFID technology raised legal issues, which were mainly focused on protecting individuals’ rights to privacy and tracking sensitive documents. Although it noted that few problems currently exist, GAO speculated on prospective privacy issues: “notifying individuals of the existence or use of the technology; tracking an individual’s movements; profiling an individual’s habits, tastes or predilections; and allowing for secondary uses of information.” Federal legislation including the Privacy Act of 1974 and the E-Government Act of 2002 does apply to RFID technology, so agencies are addressing ways to mitigate these privacy issues.

    The GAO report also indicated that a multitude of RFID standards exist for different applications, and there may be interoperability problems in the future for systems that operate internationally. Other important issues associated with RFID deployment include reliability, costs, availability of tags, and impact on the environment. A copy (PDF) of the GAO’s report, which explains in detail how RFID works and its potential applications, is available at [http://www.gao.gov/cgi-bin/getrpt?GAO-05-551].
    [Source: GAO]

    Seattle Telecom Task Force Reveals Recommendations 05.25.05 – The City of Seattle’s Task Force on Telecommunications Innovation issued its final report on recommendations for promoting an advanced communications network. The Task Force found that immediate action by the City was needed to encourage the development of advanced broadband networks and services in the City, noting that broadband Internet access is fast becoming a utility. The report’s recommendations include: working with the private sector to further deploy broadband networks, developing a municipal network to serve government functions and possibly be opened to the public in the future, and supporting new enterprises that work towards increasing access to advanced communications. The report is available online for download (PDF) at [http://www.seattle.gov/cable/docs/SeaBTF.pdf].
    [Source: Seattle Task Force on Telecommunications Innovation]

    Survey Finds Increase in Electronic Surveillance of Employees in the Workforce 05.18.05 – A new report from the American Management Association and The ePolicy Institute finds that U.S. employers are placing more weight on technology to protect their resources and increase productivity. According to the 2005 Electronic Monitoring & Surveillance Survey, 26% of employers surveyed had fired employees for misusing the Internet, 25% had terminated workers for improper email use, and another 6% had fired employees for misuse of telephones. Over three-fourths of companies surveyed indicated they monitored employees’ Internet use, with 65% using software to block inappropriate sites—a 27% increase since the most recent survey in 2001. Use of video monitoring by employers also increased from 33% to 51% in 2005, although only 10% of employers use video cameras to monitor employee productivity. Tracking of phone use is also on the increase: the number of employers indicating they monitored numbers dialed and time spent on the phone by employees jumped from only 9% in 2001 to 51% in 2005. More statistics and information about the Electronic Monitoring and Surveillance Survey are available at [http://www.amanet.org/press/amanews/ems05.htm].
    [Source: American Management Association]


    BACK TO TOP OF PAGE
  • Events

    Southern Growth Policies Board Hosts Summit on the Rural South 06.12-14.05 – The Southern Growth Policies Board, a non-partisan public policy think tank based in North Carolina and focused on economic development policies for the southern United States, will host a three-day conference on June 12-14 in Point Clear, Alabama. The title of the conference is “Rising Together: The Summit on the Rural South,” and it will be hosted Alabama Governor Bob Riley. The conference will focus on successful rural development initiatives and explore new strategies for increasing prosperity in the South’s rural regions. The Southern Growth Policies Board will release its 2005 Report on the Future of the South at the conference. More details and registration information are available at [http://www.southerngrowth.com/conf.asp].

    Wireless IT & Entertainment Conference Hosted by CTIA in San Francisco 09.27-29.05 – CTIA, the wireless industry’s trade association, will host its annual 2005 Wireless IT & Entertainment conference in San Francisco on September 27-29, 2005. The conference focuses on applications of wireless data services for both the business and entertainment worlds. Conference attendees will learn about new advances in wireless IT and be exposed to a broad array of applications for industries such as healthcare, government, automotive, and retail. More information on the conference is available at [http://www.wirelessit.com/index.cfm].


    BACK TO TOP OF PAGE
  • Newsletter Info

    Center for Advanced Communications Policy
    Telecom/IT Policy Highlights Volume 5.09
    May 2005
    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 , Assoc. Director of Research.