Antitrust litigation is avenue for CLECs seeking more cooperation from ILECs they view as monopolistic, but successful litigation can be elusive, attendees said at pulver.com conference in Washington on antitrust Wed. Washington antitrust attorneys and executives of embattled CLECs discussed in detail how Goldwasser decision -- which states that regulators overseeing Telecom Act generally preempt antitrust litigation -- has limited ability of CLECs to counter alleged monopolistic behavior by ILECs. Discussion intentionally didn’t include any ILEC representatives, since attendees hoped they could pool their resources to find ways to go after ILECs in court on antitrust grounds.
In frank outline of his antitrust views, new Justice Dept. Antitrust Chief Charles James said he didn’t see his job as working to assure large numbers of competitors in particular industries, nor to automatically stop a company from developing market dominance. Speaking at Practising Law Institute conference in Washington, James indicated his views didn’t signal laissez-faire approach, but he believed in analyzing mergers, Sec. 271 applications and other reviews on case-by-case basis taking into account changing industries. James’s comments appeared to warm hearts of business representatives in audience. “I think I'll quote him in filings with the FCC,” one attorney joked.
Unprecedented international cooperation against copyright piracy resulted in what Attorney Gen. John Ashcroft called biggest bust of pirated software to date, announcing Tues. that federal law enforcement officials had executed more than 100 search warrants worldwide in 3 separate actions.
Hackers and free speech advocates took it on chin when courts in 2 decisions Wed. upheld constitutionality of Digital Millennium Copyright Act (DMCA), whose anticircumvention provision for copy protection had been challenged on ground it infringed on free speech. Meanwhile, Electronic Frontier Foundation petitioned Cal. Superior Court to throw out case against man who published DeCSS descrambling program for DVDs because already widely distributed code couldn’t be considered trade secret.
Satellite Bcstg. & Communications Assn. (SBCA) filed motion Nov. 13 with 4th U.S. Appeals Court, Richmond, Va., for delay in start of FCC must-carry requirements because of pending litigation involving constitutionality of law. SBCA said issue probably wouldn’t be decided before Jan. 1 deadline for implementation of requirements. Appeal said if must-carry requirements took effect before case was resolved, it would violate First Amendment rights of satellite carriers. “The recognition that time is short and that much is at stake was the basis for the satellite carriers’ opposition to a U.S. motion to hold in abeyance the petitions for review,” Assn. said. Constitutional issues at stake could go to Supreme Court, SBCA said. It said it didn’t seek relief from District Court because it would be “impracticable” and “time is of the essence.”
At occasionally emotionally charged meeting of Public Safety National Coordination Committee (NCC) in Brooklyn Fri., public safety officials, including several who themselves had responded to attacks on World Trade Center and Pentagon, laid out for policymakers critical spectrum needs in wake of Sept. 11. At top of many lists was clearing analog TV incumbents from 700 MHz to make way for public safety users to operate in 24 MHz that FCC has set aside from them in that band. In first days following N.Y. attack, TV stations went off air after their equipment on top of World Trade Center was destroyed, said Peter Meade, chief of Nassau County, N.Y., Fire Dept. “I didn’t hear anybody saying, ‘I need Channel 2 back,'” Meade said. “But there are literally millions of people in the New York metropolitan area who cannot live and who will not live without an augmentation to the existing public safety communications channels. So television be damned.” Other key issues that surfaced repeatedly in day-long meeting included need for better interoperability between jurisdictions, for redundant wireless data network that could function during disasters and for more govt. funding. Several new proposals were put on table as well, including one by Nextel that was receiving kudos from public safety community and would relocate users in 700 MHz and 800 MHz bands for more efficient operations.
FCC adopted new procedures Thurs. aimed at streamlining review of undersea cable landing applications and eliminating “regulatory red tape.” New procedures are expected to decrease costs to consumers because international telephone companies will face faster, less burdensome approvals. International Bureau said it improved process in several ways: (1) Applicants with no affiliation with carrier that had market power in any of cable’s destination points were eligible for streamlining. In addition, applicant affiliated with market power carrier in World Trade Organization destination market would be eligible if it accepted competitive safeguards. Safeguards include such things as filing quarterly provisioning and maintenance reports. Eligible applications will be acted upon in 45 days. (2) Entities with less than 5% interest in cable don’t have to be licensed, thus eliminating regulatory burden for smaller carriers, Bureau officials said. (3) FCC, to speed licensing, will grant applications by public notice instead of written order in most cases. AT&T said new processes would eliminate regulatory delay and cost and replace “ad hoc, lengthy review” of license applications. “The regulatory certainty and reduced costs… should attract increased cable entry and competition, thereby reducing [customer] prices, improving quality, expanding services and enhancing the ability of U.S. carriers to compete globally.”
FCC Wireless Bureau dismissed in part and denied in part emergency petition for clarification, filed by trade group Wireless Communications Assn. (WCA) Sept. 28 that followed issuance of 39 GHz band licenses to winning bidders. WCA had requested: (1) Correction to indicate buildout deadline was 10 years from date license was granted. (2) Addition of statement to each band authorization acquired by competitive bidding if incumbent held license for territory within 39 GHz auction winner’s service area. In that case, it said, band authorization should state expressly that incumbent licensee retained right to use channels within its self-defined rectangular service area. FCC dismissed request to correct buildout deadline as moot because original 18-month buildout requirement of at least one link had been removed and replaced by “substantial service” requirement at license renewal at the end of 10-year term. Bureau also denied WCA’s request to add express condition as unnecessary because service rules specifically required 39 GHz auction licensees to protect incumbents. Rules state “39 GHz band licenses may not cause interference to a previously existing station operating in another authorized service area.”
Cal. Supreme Court will be next setting for effort to corral DeCSS program that hacks DVD’s Content Scrambling System for copy prevention. DVD Copy Control Assn. (DVD CCA) said Fri. it would go to state’s top court to appeal Nov. 1 decision by Cal. appellate court to overturn trial court’s preliminary injunction that prohibited individuals from posting DeCSS code on their Web sites.
Last week’s terrorist attacks appear to have dimmed prospects, for now, of wireless industry’s obtaining quick decision on relocating military spectrum users for 3G wireless. While insiders continue to stress need for additional spectrum for advanced wireless services, several told us that if nothing else, logistics of defense agencies focusing on response to last week’s attacks meant that Pentagon policymakers attention was focused elsewhere. On other hand, several wireless industry officials said key role played by mobile communications in aftermath of attacks, including final calls from passengers on hijacked planes, underscored very publicly importance of adequate wireless coverage.