Designated entity rules for the advanced wireless services auction seem in flux, with short form applications due May 10 and the auction set to start June 29. The FCC has 2 choices, sources said: approve rules consistent with a further notice of proposed rulemaking, or not propose any changes to DE rules before the auction. “There may still be negotiating going on,” one source said: “I wouldn’t read too much in the tea leaves.” The source said Chmn. Martin has yet to lay out a clear “drop dead” date by which time DE rules must be approved for the auction to proceed as planned.

Despite the media savvy of terrorists and their heavy use of the Internet for organizing and recruiting, the first response of govts. and private hackers shouldn’t be to shut down their websites, a researcher said Wed. Gabriel Weimann, Haifa U. Dept. of Communication chmn., stunned a New America Foundation crowd with screenshots from terrorist Web pages intended to appeal to Muslim women and children. But the author of the new book Terror on the Internet, based on an 8- year study, warned that blanket shutdowns could starve intelligence officials and academics of much-needed information on how loose collections of terrorists work. Better to monitor networks and encourage peaceful members of groups linked with terrorism to challenge their violent associates for influence in cyberspace, he said.

The Federal Trade Commission (FTC) has issued a notice stating that it is planning to host a public workshop on May 3, 2006 to discuss the Appliance Labeling Rule (Rule, 16 CFR Part 305), including certain energy and/or conservation labeling requirements, for consumer appliances and certain other consumer products.

The FCC Wed. adopted long awaited rules on educational institutions’ leasing broadband radio service (BRS)and educational broadband service (EBS) spectrum to firms planning to use the spectrum for wireless broadband. Firms anxious to roll out wireless broadband networks on the spectrum scored key wins, but many details remain unclear. Comr. Copps voiced deep concerns about the order.

The FCC gave NCTA an extra week to reply to comments from consumer and open media advocate groups (CD April 5 p14) such as the Benton Foundation and the Center for Creative Voices in Media, which want the FCC to get on with an inquiry to decide if the cable industry has met the so-called 70/70 test in the Communications Act. The FCC raised the question in its 12th Annual Report. Last week NCTA sent comments on the matter, but an FCC order gives it the chance to answer other parties’ comments. NCTA said it needs more time due to its convention, Easter and Passover. The extension applies to others wishing to address NCTA’s previous comments, the order said.

The FCC’s junk fax enforcement is hindered by inefficient data management, the GAO told Congress in a report issued Wed. The GAO said the FCC is receiving many more complaints about junk faxes, but the number of investigations and enforcement actions have remained the same. Complaints have risen from about 2,200 in 2000 to 46,000 in 2005, but the proportion resulting in citations has gone down, to 0.7% from 5.7%, the GAO said. Among problems faced by the FCC in dealing with the rising number of complaints is an unwieldy data management process, the GAO said. For example, the FCC’s Consumer & Governmental Affairs Bureau receives and records complaints in a database, and the FCC’s Enforcement Bureau (EB) handles the investigations and enforcement. But the Bureaus haven’t “coordinated their data needs” so EB analysts, sometimes unsatisfied with data available, “spend about half of their time on manual, redundant data entry.” Another problem: The EB considers only complaints with the junk fax attached, but the FCC’s consumer guidance on submitting junk fax complaint doesn’t make that clear, the GAO said. The FCC encourages consumers to include the junk fax, but doesn’t say “that without a copy of the junk fax, EB analysts do not review a complaint, include it in their investigations… or include it in their searches for repeat offenders.” The FCC should revise its guidance to consumers, develop better data management practices and should have “performance goals,” the GAO said. The agency said the 2005 Junk Fax Prevention Act required it to make the report. Unrelated to the GAO report, the FCC Wed. officially adopted rules to implement the 2005 junk fax law. The rules codify an exemption to the fax rules to allow transmission of fax ads to parties with whom a sender has an “established business relationship.” Wed. was the deadline for the FCC to adopt the new rules, which don’t deal with the enforcement issues raised by the GAO.

LAS VEGAS -- The FCC means to make sure wireless broadband services “are subject to the same kind of lighter regulatory touch” already provided “cable services and DSL services,” Chmn. Martin said in a keynote at CTIA’s convention, which opened here Wed. Along with making progress on wireless E-911 and public safety and the upcoming auctions topped his wireless agenda, he said.

Full-time digital AM radio raises interference concerns, said FCC Comr. Copps, asked late Thurs. about the potential for permitting such broadcasts at night. The FCC failed to act on lifting a ban, confounding expectations (CD Sept 2 p1). “Experimenting” with such broadcasts is a good thing, said Copps, but “I am concerned about possibilities of interference -- I think we always have to be very, very mindful of that.” Broadcasters believe interference in an AM station’s market would be limited, and that the best way to understand the technology is to use or test it more widely, said a source. Copps again urged clarifying industry obligations to the public: “We also have to finally tee up the questions of the public interest obligations of the broadcasters in the digital age… Too many proceedings still lie fallow at the FCC.”

The Federal Election Commission’s (FEC) new rules for online political speech (WID March 28 p1) are a “big win for bloggers and other online speakers,” the Electronic Frontier Foundation (EFF) said Wed. The FEC limited its changes to paid political advertising on 3rd-party websites, in its compliance with a court order that it define some Internet activity as regulated “public communications” under the Bipartisan Campaign Reform Act (BCRA). “The final rules should put most of the immediate free speech concerns of bloggers to rest,” staff attorney Matt Zimmerman said on the EFF blog. The Center for Democracy & Technology (CDT) said the FEC “adopted the strongest protections for small speakers possible under the statutory framework set by Congress,” and that body “should not undercut what the FEC has done.” CDT’s proposal for online political speech, which would raise some dollar thresholds for campaign spending by individuals and groups (WID March 3 p4), is embodied in HR-4900, sponsored by Reps. Bass (R-N.H.) and Allen (D-Me.). Rep. Hensarling’s (R- Tex.) Online Freedom of Speech Act (HR-1606), which would codify the original FEC exemption of the Internet from BCRA and was set for floor debate this week, has been pushed off until at least next week (WID March 30 p10).

For a change, Google isn’t the target of a trademark infringement suit for sales of competitors’ keywords. The U.S. Dist. Court, Minneapolis, ruled that an infringement case can proceed to trial against a real estate website that bought keywords based on a realty group’s trademark on Google and Yahoo. TheMLSOnline.com bought sponsored-link keywords on Google for Midwest real-estate brokerage firm Edina Realty, including “Edina Realty,” “EdinaRealty.com,” “EdinaRealty,” “EdinaReality.com” and variants. The website bought similar keywords on Yahoo, though Yahoo has stopped allowing bidding on competitors’ keywords since the suit was filed. In a search for Edina, TheMSLOnline’s sponsored links showed up above Edina’s own website in results. The court said 18-32% of users searching with Edina-themed keywords on Google have clicked on TheMLSOnline ads instead of Edina’s website, the court said. The website also used Edina’s trademark in hidden text -- white text on a white background. The court denied the website’s motion to dismiss testimony from Edina’s expert witness, saying Akshay Rao is an expert in consumer behavior and marketing and didn’t need to do a survey on consumer confusion to submit testimony. The “plain meaning of the Lanham Act,” which governs trademark use in commerce, argues for viewing the purchase of search terms as a “use in commerce,” the court said, disagreeing with the site. On the other motion for summary judgment, claiming no likelihood of confusion, the site argued that its purchase of Edina’s trademark for search keywords is “nominative fair use,” meaning use of the mark doesn’t imply sponsorship or endorsement by the trademark holder. The court found a factual dispute over whether the website was trying to “pass off” itself as associated with Edina, noting that Google made the site change its sponsored-link text multiple times to cut likelihood of confusion. A handful of phone calls and e- mails to TheMLSOnline, suggesting consumers assumed it was linked with Edina, “are sufficient to raise a genuine issue of material fact” in considering summary judgment, the court said. It denied partial summary judgment on Edina’s trademark infringement claims, but also denied summary judgment to the site. TheMLSOnline’s claim that its use of the trademark is nominative fair use doesn’t hold up, given alternative phrases it could have used in ads, such as “Twin Cities real estate,” the court said. Edina’s claim of trademark dilution failed for lack of evidence, the court added.