The 4 largest U.S. wireless carriers outlined a relatively bleak picture for the FCC this week of how negotiations were going with other carriers, particularly LECs, for wireless local number portability (LNP). On coordination efforts with wireline carriers, AT&T Wireless told the FCC it “has been unable to negotiate successfully a single agreement with a wireline carrier.” Sprint said while it expected to be LNP ready by a Nov. 24 FCC deadline, it had received “mixed cooperation” from other carriers, leaving it worried over the prospects of its ability to port numbers with many carriers by the deadline.
U.S. Appeals Court, D.C., upheld constitutionality of federal Harbor Maintenance Tax (HMT), rejecting appeal filed by Thomson Multimedia. Thomson sought to reverse Court of International Trade (CIT) decision last year that HMT was constitutional as it applied to imports, which in this case were TV sets. HMT was enacted as part of Water Resources Development Act of 1986 and was intended to help fund maintenance and improvement at U.S. ports. HMT imposes charge of 0.125% of value of commercial cargo that’s unloaded in port. In its appeal, Thomson, which pays more than $1 million in HMTs annually, argued among other things that law violated Uniformity Clause of Constitution because it exempted Alaska and Hawaii, 47.5-mile stretch of Columbia River and inland waterways. Thomson contended that HMT as it applied to imports and domestic unloadings didn’t “correlate reliably with the federal harbor services used or usable.” But court said HMT, as it applied to imports and domestic unloadings, wasn’t tax, but rather was user fee that couldn’t be applied under Uniformity Clause. Appeals court, while saying HMT was “imperfect in application,” held that charges were based on “fair approximation of the cost of the benefits provided for port users.” It also said HMT wasn’t excessive in relation to costs incurred by federal govt. While Thomson also said HMT violated Port Preference Clause of Constitution by favoring one port over another, appeals court said company’s “logic is flawed.” It said that “exemptions at issue here are not the sort of preference prohibited” by Port Preference Clause. Thomson spokesman declined comment on decision, but noted that company had disputed fees paid in “certain” U.S. ports for several years. Thomson was subject of U.S. Customs probe that included search of Tube Div.’s Scranton, Pa., hq in Jan. 1998. Investigation was believed to have focused on 31-32” tubes imported from Italy and loss of customs revenue due to transfer pricing. Case was later settled.
Shanghai court ruled in favor of 3 U.S. studios in piracy suit against 2 local businesses charged with selling pirated movies on DVD. Cases were first of kind in which studios directly sued resellers of movies replicated without authorization on DVDs, and marked heightened efforts by content owners to police copyrights in notoriously lax Chinese market.
Verizon Internet Services’s warnings about the dangers of RIAA’s sweeping Digital Millennium Copyright Act (DMCA) subpoena blitz have been borne out, Verizon Vp-Assoc. Gen. Counsel-Internet Policy Sarah Deutsch said Fri. Pacific Bell Internet Services’ filing of a lawsuit last week challenging the issuance of hundreds of DMCA subpoenas and/or DMCA notices by RIAA, MediaSentry and Titan Media prove Verizon’s point -- so far unsuccessfully argued in federal court in D.C. -- that the DMCA Sec. 512(h) subpoena process is unconstitutional and will be abused, Deutsch told us. “These are not hypothetical arguments,” she said.
Boeing asked U.S. Dist. Court, Orlando, in a motion filed late Thurs., to dismiss 9 counts of Lockheed Martin’s lawsuit against it. Lockheed filed suit in early June charging that 3 former Boeing employees had used Lockheed documents to win contracts in the U.S. Air Force (AF) evolved expendable launch vehicle (EELV) competition (CD June 11 p12). Boeing said that although Lockheed’s suit identified the facts of the situation correctly, Lockheed “is trying to transform a claim for theft of trade secrets and related business torts into a complex and sprawling racketeering and antitrust case far removed from the facts.” The counts in question deal with racketeering, conspiracy and procurement integrity, all of which were brought against Boeing, which said it was an “effort to damage Boeing’s reputation through this opportunistic litigation.” The AF recently completed its investigation of the EELV competition, concluding that the former employees had been in possession of the documents during the competition (CD July 25 p1), but a Boeing spokesman said the company didn’t dispute that: “We acknowledge the fact that the employees were in possession of proprietary documents. We're challenging the allegation that they were used to gain an advantage.” Since the suit still is in progress, the spokesman said, he couldn’t explain what the company thought the former employees were doing with the documents. Boeing said its motion didn’t “challenge Lockheed’s trade secret and related business tort claims,” but the spokesman said that a pending motion would. He also confirmed that reports that the company planned to challenge the AF’s decision were untrue. Meanwhile, Boeing reported that its launch of the AF satellite DSCS 3-B6 would be delayed at least until today (Aug. 4) in order to complete additional testing. The launch had been scheduled for Sun.
After 5 years of legal wrangling over NextWave’s PCS licenses, similarly situated bankrupt bidder Urban Communicators asked the FCC to reinstate its C- and F-block licenses. The company, which won 10 C-block and 13 F-block licenses in 1996, cited the Jan. Supreme Court ruling that the FCC had erred when it cancelled NextWave’s licenses for nonpayment. Urban Comm also urged the agency to adjust the interest rates charged for the revised installment payment period to reflect the lower rates that would apply if the licenses were granted today. Arguments on the application of lower interest rates are part of discussions between NextWave and the FCC on that carrier’s installment payments, many sources said.
Wireless carriers are stepping up their calls for the FCC to rule on questions involving intercarrier compensation by mobile operators and LECs, citing the rising number of wireless termination tariffs filed by wireline carriers. While wireless carriers want the Commission to rule those tariffs are illegal, rural LECs have urged the agency to uphold their lawfulness, defending them as cost-based and voluntary because they apply only when there’s not a negotiated agreement.
Mandated receiver performance standards “based on the rapidly changing technology of today would lessen incentives to develop and deploy receiver improvements,” CEA told FCC in comments filed this on Commission inquiry on receiver performance requirements.
Wireless carriers and others cautioned the FCC this week that an inquiry on receiver performance requirements should lead to neither mandatory standards for their industry nor creation of an “interference temperature.” Cingular and BellSouth went so far as to recommend that the Commission suspend the inquiry for now because it didn’t have enough concrete information on the noise floor in different bands. But Microsoft said it favored the FCC’s setting such receiver specifications, saying in comments this week: “If Commission licensees are to continue to enjoy protection from ‘harmful interference,’ then it is in the public interest for the Commission to define the extent of that protection just as explicitly as it defines geographic exclusivity or channel assignments.”
Top FCC officials said Wed. at the Wireless Communications Assn. (WCA) show in Washington that they expected decisions by early next year on a series of interlocking spectrum issues, including efforts to solve public safety interference at 800 MHz. The outcome of the 800 MHz proceeding has implications for replacement spectrum that Multipoint Distribution Service (MDS) operators seek in the planned reallocation of some MDS spectrum for advanced wireless services.