Panelists at NTIA Spectrum Management & Policy Summit Thurs. and Fri. differed on degree of overhaul needed in current govt. spectrum planning, but agreed fix was needed in system that bifurcated regulators along lines of govt. vs. commercial spectrum. “We are going to have to come up with some sort of integration of all these plans to satisfy a requirement,” said Frederick Wentland, NTIA acting asst. administrator: “How can we go about implementing a ‘national plan?'” Panels addressed how spectrum priorities for public safety and military users had been elevated since Sept. 11. Wireless industry officials, govt. spectrum users and regulators cited challenges on how to make regulatory process that’s not just reactive to user requests but can change allocations more quickly when business ventures fail. Sessions also tackled new questions raised if spectrum flexibility blurs lines between govt. and commercial users in terms of how regulators make decisions based on competing priorities.

Industry and govt. spectrum users agreed on need for more regulatory certainty and flexibility in govt. spectrum policy at NTIA Spectrum Management & Policy Summit Thurs. But at start of 2-day summit, panels struggled with how to define spectrum property rights, incumbent relocation, global harmonization, incentives for efficient spectrum use, accurate forecasts of future demand. FCC Chmn. Powell and NTIA Dir. Nancy Victory stressed renewed commitment of both agencies to engage in regular spectrum planning meetings. While overarching govt. goal is to develop national spectrum policy and improve spectrum management policy, Victory said NTIA was in “listening mode” to assess what was and wasn’t working under current policies. “This is clearly a significant moment in spectrum management,” she said, noting spectrum review outcome could involve changing “slightly or drastically” way bands are managed. Much of day-long discussion focused on thorny transitional issues that face govt. policymakers in areas such as how incumbents are treated when more flexible spectrum policies like sharing and leasing are introduced. “Our challenge is this: How do we fit new world-leading technologies into the U.S.’s own cramped spectrum allocation,” Commerce Secy. Donald Evans said.

Private cable overbuilders have joined their municipal counterparts in accusing incumbent cable operators of indulging in predatory pricing policies to “restore their former monopoly” in violation of federal and local regulations. Selective discounts offered by incumbents have become issue in AT&T-Comcast merger transfer applications with local franchising authorities (LFAs). In recent letters to LFAs in Mich. and Ill., WideOpen West (WOW) accused Comcast and AT&T of seeking to drive out competitors by offering “selective unpublished discounts” and lower prices. “If federal, state and local government regulations are not enforced, the discriminatory pricing practices currently deployed by Comcast will not only impede the potential benefits in service and prices to cable customers, but it threatens to destroy the competitive cable television industry altogether,” WOW Pres. Mark Haverkate wrote. He urged LFAs to condition consent to merger in way that would preserve benefits of competition.

Debate over FCC’s triennial review of unbundled network elements (UNEs) continued Thurs. with several parties expressing concerns about effect on competition and USTA warning that UNE process stymied investment. Today (Fri.) is deadline for comments in proceeding on whether current UNE list can be reduced and whether such reduction could be made on geographic or service-specific basis. UNE regime requires Bell companies to lease portions of their network to their competitors.

CTIA asked FCC to again delay 700 MHz auction now scheduled for June 19, citing “numerous contradictions and many uncertainties” that surround process. “While a June auction might be called an ‘auction,’ in reality it would be the U.S. government opening a casino and collecting the ante for a much bigger private auction to enrich broadcasters at the expense of rational spectrum policy and the welfare of American taxpayers,” CTIA Pres. Tom Wheeler wrote to FCC Chmn. Powell. Last year, FCC Wireless Bureau postponed planned Sept. 12, 2001, auction of TV Ch. 60-69 spectrum now occupied by analog broadcasters for 5th time. CTIA’s request for delay came one day after Pax TV Chmn. Lowell Paxson told reporters that if there were another delay in 700 MHz auction, there would be no voluntary clearing of that spectrum by analog TV stations to make way for nonbroadcast users (CD April 3 p5). Request also came as Cingular Wireless was floating plan to ameliorate interference issues faced by public safety users at 800 MHZ that would move those licensees to 700 MHz, necessitate delay in auction and require congressionally mandated certainty as to when broadcasters would move. FCC officials have emphasized in recent weeks that Commission is preparing for auction of Chs. 52-59 and Chs. 60-69 at 700 MHz. FCC faces Sept. 2002 statutory deadline for depositing proceeds from Ch. 52-59 auction into U.S. Treasury. In 2000, congressional leaders signaled their support for Ch. 60-69 auction’s slipping beyond statutory deadline of Sept. 30, 2000, for depositing proceeds from auction of that band. CTIA argued in its petition that Congress had given agency conflicting instructions. It has directed FCC to auction Ch. 52-59 spectrum by Sept. 30, but that deadline conflicts with Sec. 309 of Communications Act, which directs Commission to ensure parties have time to develop business plans, assess market conditions and evaluate availability of equipment for relevant services, CTIA argued. “The uncertainty of the band-clearing process does not allow carriers to properly assess market conditions and make rational business decisions,” group argued. “In situations where there is a statutory conflict such as the one that is present here, the conflict may be reconciled through reasonable statutory interpretation,” Wheeler wrote. “A reasonable interpretation of these conflicting statutes should lead the Commission to postpone both of the 700 MHz auctions to further its statutory and public interest spectrum management responsibilities.” CTIA also noted Administration’s budget proposal earlier this year would postpone 700 MHz auctions. Budget blueprint said that if upper band auction were moved to 2004 from 2001 and Ch. 52-59 bidding to 2006 from 2002, budget offset of $2.6 billion for fiscal 2002 would be provided. “The uncertainties surrounding both of the 700 MHz auctions increases the risk that the auctions will be skewed so that licenses are not awarded to the parties who value them most highly, and who will provide the services consumers most desire,” Wheeler said. Responding to Paxson’s “media alert” on possibility of another FCC postponement of auctions, Wheeler said: “Paxson’s hell-bent-for-auction attitude is so strong he objects to our filing even before it is submitted” to FCC. Broadcasters, he said, now want to use spectrum they promised to turn back “for personal enrichment by exploiting a carefully crafted legislative loophole.” Meanwhile, Cingular is proposing plan that would offer alternative to Nextel’s band reconfiguration scheme that would swap spectrum at 700 MHz, 800 MHz and 900 MHz for new capacity at 800 MHz and 2.1 GHz. Private wireless users have raised concerns about disruption to their services under Nextel plan. Cingular plan, which hasn’t been formally unveiled and is still under development, would move public safety operators to 700 MHz and put 800 MHz spectrum now occupied by public safety users up for bid, said Brian Fontes, Cingular vp-federal relations. “This plan is just a draft,” he stressed: “We are circulating it to a number of different people or groups seeking their comment.” Fontes called plan “realistic approach” to interference public safety users are experiencing at 800 MHz, saying it has benefits for commercial, public safety and private wireless users. Proposal also would require reallocation of affected spectrum for public safety and homeland security uses, he said.

Microsoft asked U.S. Dist. Court, Seattle, to reconsider preliminary injunction against Lindows.com. Judge John Coughenour last month denied request by Microsoft to block San Diego software company from calling itself Lindows.com and its Linux-based programs LindowsOS. Microsoft’s complaint charged Lindows.com with trademark infringement and unfair competition under Lanham Act. Software giant argued use of names Lindows.com and LindowsOS traded off goodwill of Windows trademark and would cause confusion among prospective buyers of Windows products and dilute ability of Microsoft’s trademark to distinguish its products from competing products. But Coughenour said “at most, Microsoft has raised serious questions about the validity of its trademark, but has fallen short” of showing Lindows.com should be prevented from using names as part of its business. He also said “there is indirect evidence that Microsoft considered Windows to be generic at the time it began using the trademark” -- so much so that when company first released Windows in 1985 it referred to operating system as “Microsoft Windows 1.0.” In asking court to reconsider decision, Microsoft said “a fundamental misapprehension of the test for ‘genericness’ led the court to conclude ‘Lindows.com has presented sufficient evidence [of genericness] to rebut the presumption of validity of the Windows [trademark].’ Whether the term ‘windows’ was generic in the mid- 1980s for one of many features shared by different software products is not the question the court must reconsider. Rather, the appropriate question is whether ‘Windows’ is generic for operating system software.”

FCC Comr. Martin stressed “critical importance” of Enhanced 911 rollout by wireless carriers, saying Wed. he wanted to see interim, measurable milestones backed up by automatic enforcement mechanisms such as fines. He spoke at regularly scheduled press breakfast in his office. His comments came one week after Deputy Wireless Bureau Chief James Schlichting said at CTIA Wireless 2002 that Commission conducting “serious examination” of information it had received from GSM carriers that they wouldn’t be able to meet all benchmark dates of E911 waiver requests granted by Commission. Martin emphasized that to extent carriers informed Commission they couldn’t meet milestones, they should provide specifics of what kinds of equipment could be delivered and when. Absent “extraordinary circumstances,” Martin said: “I'm not going to be inclined and I don’t think the Commission should be inclined to grant very many extensions, unless it is beyond their control, like the vendors’ not being able to deliver their products.”

SBC/Southwestern Bell told Tex. PUC it would cease automatic prompts that offer customers its automatic redial service when they encounter busy line. SBC acted in response to concerns raised by PUC staff that automated prompts could interfere with fax and modem autodialers, text telephones used by deaf customers and other consumer telecom devices that reacted to busy signals. SBC began use of automated prompts in mid-2000 but will remove capability from its switches by June after notifying customers of change. For $4 monthly or 50 cents per use, automatic redial tries busy number repeatedly over set time period, then calls customer back when line is clear. Normally, it’s activated with 2 or 3 digit code, but with automated prompt it could be activated by dialing single digit.

Verizon Tues. refiled application with FCC to offer long distance service in N.J. Company withdrew earlier petition March 19 after Commission raised questions about size of nonrecurring rates Verizon charged competitors for “hot cuts.” To address that concern, carrier said it filed reduced hot cut rate March 20 that mirrored rate established in Feb. in N.Y. Hot cuts occur when customer’s line is disconnected from one provider and reconnected to new one. “This new hot cut rate is now part of the record,” Verizon Senior Vp Thomas Tauke said. “By withdrawing and refiling the application, the procedural issue was resolved and the new hot cut rate was endorsed by more than a dozen CLECs” in N.Y. Verizon said new application also reflected continued growth in competition since first one was submitted. Competitors have added 50,000 lines, increasing total to 610,000. Verizon has Sec. 271 applications pending for 2 other states -- Vt., which FCC must act upon by April 17, and Me., with FCC’s decision due by June 19. AT&T said Verizon’s ability to change hot cut rate to $35 from $160 “with a strike of a pen” showed “the initial application was frivolous.” AT&T contended new application also had “serious problems.” FCC issued “expedited schedule” for gathering comments on new application “because Verizon’s… application follows very closely in time to its recently withdrawn filing [and] relies largely on the same evidence that supported its previous application.” Comments are due April 8; Dept. of Justice evaluation, April 15; replies, April 19. Wireline Bureau staff will be available April 11 and 12 for ex parte meetings if parties want to discuss issues they plan to raise in reply comments. Statutory 90-day deadline for FCC to act on petition is June 24.

GSM-based pilot wireless priority access service (PAS) program will be implemented in N.Y. and Washington in May, National Communications System (NCS) Deputy Mgr. Brent Greene told James Quello Communication Policy & Law Symposium Tues. VoiceStream has partial waiver request pending before FCC and company told Commission last month it was in “final negotiations with NCS” to roll out PAS system in those 2 markets. Greene said NCS was close to finalizing competition for initial PAS capability that would have national reach by year-end, with “full operational capability” in 2003. NCS is looking at ways to broaden “and radiate out our systems to provide other kinds of networks that can be ready in the event that we have other kinds of emergencies.” Several panelists said new challenges faced policymakers involving balancing competition and consumer interests against national security concerns. On broader issue of broadband access, NTIA Dir. Nancy Victory said theme she had seen emerge among all providers was that accessing public rights of way and tower sites might be holding back network construction.