I. Legislative Branch Activity
A. Senate Committee Passes Caller ID Spoofing Bill.
On June 28, the Senate Commerce Committee, by a voice vote, passed an anti-spoofing bill (S-704). This bill orders the FCC to write rules within 6 months of enactment and would impose civil and criminal penalties up to $10,000 per violation, capped at $1 million. The House passed a similar bill on June 12 (HR-251), which was referred to the Senate Commerce Committee. Little debate occurred and the effort maintains strong bipartisan support.
B. Legislative Calendar.
The House and Senate are not in session from July 2 until July 6.
II. Federal Communications Commission (FCC) Activity
A. June FCC Meeting.
On June 28, the Commission met in Portland, Maine putatively to discuss localism, though attending Commissioners (Chairman Martin remained in Washington, DC) used the forum to discuss topics ranging from ownership diversity to broadcast license renewals to childhood obesity. The one item on the agenda, a NPRM concerning plug-and-play devices, was pulled just 24 hours before the meeting.
B. Other May FCC Activity.
1. Pleading Cycle Established for XM-Sirius Merger (MB Docket 07-57).
The FCC, on June 8, approved the pleading cycle for the merger of XM Satellite Radio Holdings and Sirius Satellite Radio Inc. Comments or Petitions to Deny are due July 9, and the Reply Comments or Oppositions follow on July 24.
Back on February 19, XM and Sirius signed a merger agreement, which calls for the two companies to combine their programming. The merger will have to be approved by both the Department of Justice and the FCC. The sticking point will be what constitutes the market for satellite radio, whether it is narrowly defined or should be expanded to allow competition with FM and AM stations, people with access to the Internet, or owners of other digital music media such as iPods.
2. Comment Period Extended in Multiple Dwelling Unit NPRM (Docket 07-51).
The Commission granted a Motion for Extension of Time submitted by Real Access Alliance and pushed the comment deadline back to July 2. Reply Comments are now due August 1. The Motion argued that commenters needed more time to analyze the Inside Wiring Order (FCC 07-111), which the FCC released on June 8. In March, the FCC adopted a Notice of Proposed Rulemaking that sought comment on exclusive contracts for video services in multiple dwelling units (MDUs), such as apartment buildings.
3. Commissioner Tate to Be Re-Nominated.
The White House announced its intention to re-nominate Commissioner Tate to serve a 5 year term, which will end in 2012. Commissioner Tate has been filling the unexpired term of Chairman Powell. Her term was to have ended June 30, 2007.
4. FCC Acts Upon Set-Top Box Waiver Requests.
On Friday June 29, the Commission released six separate orders concerning set-top box rules and waiver requests. As of July 1, 2007, set-top boxes with integrated security may no longer be deployed by cable systems. In the Commission’s latest order, those cable systems which have converted to all-digital carriage and those that will become all-digital by February 17, 2009, were granted an omnibus waiver. The FCC denied a waiver filed by NCTA, which filed on behalf of all cable operators.
On the same day, the FCC released a Third Further Notice of Proposed Rulemaking concerning the bi-directional capability of CableCARDs and whether these rules should apply to all MVPDs.
C. Next Commission Meeting.
The July open meeting date and agenda are not yet available.
A. Judge Hears Oral Arguments in Vonage-Verizon Case.
On June 25, oral arguments were held in the Vonage-Verizon patent dispute case before the U.S. Court of Appeals for the Federal Circuit. Lawyers for Vonage argued that U.S. District Court Judge Claude Hilton did not give sufficient instructions to the jury. Specifically, Vonage accused Judge Hilton of misinterpreting conditional access and failing to define two other terms – translation and destination access. Verizon countered that such arguments have their place and time in the lower court, but were too late now.
One of the three judges on the panel, Judge Timothy Dyk, offered some hope to Vonage when he stated that there could be some "middle ground" for those patent infringers that might be put out of business due to a ruling. He asked whether Vonage should be allowed time to develop a workaround as a part of the injunction.
B. FCC Indecency Policy Found Unlawful.
On June 5, the U.S. Court of Appeals for the Second Circuit sided with the broadcast networks by striking down FCC policy concerning "fleeting expletives." The divided panel of judges sent the case back to the Commission to be rewritten, finding that such fleeting expletives may be used out of frustration or excitement, and do not always have obscene connotations. They cited uses of such language by President Bush and Vice-President Cheney, examples also given by the network lawyers. Chairman Martin expressed disappointment with the ruling and stated that the FCC is considering whether to appeal the case before all the judges of the appeals court, or to take the case directly to the Supreme Court.