Selected portions of the BloostonLaw Telecom Update, and the BloostonLaw Private Users Update — newsletters from the Law Offices of Blooston, Mordkofsky, Dickens, Duffy & Prendergast, LLP are reproduced in this section with the firm's permission. 
Headlines FCC Extends Reply Comment Deadline in Citizens Broadband Service Rulemaking Last Friday, the FCC extended the deadline, from March 22 to April 5, 2013, for the filing of reply comments in the rulemaking proceeding looking toward the creation of a new Citizens Broadband Service in the 3550-3650 MHz band, as previously reported (BloostonLaw Telecom Update, December 19,2012). A public workshop on the proposed rulemaking will be held on March 13 and the FCC felt there was too little time between the workshop and the March 22 filing deadline to develop meaningful reply comments. As our clients may recall, among the proposals is whether the FCC should include in the new radio service the neighboring 3650-3700 MHz band (the 3.65 GHz Band), which is used extensively by wireless Internet service providers (WISPs) and others for commercial broadband services. The FCC believes that integrating the 3.65 GHz Band within the proposed Citizens Broadband Service will bring benefits of greater spectrum availability and equipment economies of scale to current 3.65 GHz Band licensees. The proposal contemplates conversion of the existing 3.65 GHz non-exclusive licensing framework to the license-by-rule framework proposed in the Notice of Proposed Rulemaking. The concern for our clients is whether including the 3.65 GHz band in the new radio service will increase the likelihood of harmful interference to their existing operations in this spectrum. Comments in the proceeding were filed by February 20, 2013. Our clients with operating facilities in the 3.65 GHz band may wish to review the comments in this proceeding to determine whether any of the suggestions for incorporating this band into the Citizens Broadband Service would be adverse to their interests; and, if so, whether reply comments should be filed by the April 5 deadline. We are available to assist in this regard. FCC Authorizes Unlicensed TV White Space Database Systems for Nationwide Use As of March 1st, the FCC's Office of Engineering and Technology (OET) is authorizing nationwide use of approved TV white space database systems (database systems) to provide service to unlicensed radio devices that operate on unused TV Band spectrum. This paves the way for nationwide roll-out of TV white space devices that use new methods for efficiently using unused spectrum (white space) in bands allocated for licensed services. This action follows the nationwide launch by OET and Wireless Bureau last December of an online registration system for large entertainment, sports, and similar venues where a significant number of unlicensed wireless microphones may be used, also operating on TV Band spectrum. That registration system allows qualifying major event/production venues to register with the database systems so that their operations of unlicensed wireless microphones and other low-power auxiliary station devices will be protected from potential interference caused by TV white space devices. OET had previously authorized database systems to provide service to TV white space devices in the East Coast region only. Under the Commission's Part 15 rules, unlicensed radio devices are permitted to transmit on white space in the spectrum bands used by the broadcast television service, i.e., 54-72 MHz, 76-88 MHz, 174-216 MHz, 470-608 MHz and 614-698 MHz. However, prior to operating, the rules require that unlicensed TV band devices contact an authorized database system to obtain a list of channels available for operation at their individual locations (i.e., channels not occupied by authorized radio services). The FCC rules require that TV white space database systems protect the following radio services and receive-only operations: 1) broadcast television stations;
2) fixed broadcast auxiliary service (BAS) links;
3) receive sites of TV translator, low power and Class A TV stations, and multichannel video programming distributors (MVPDs);
4) public safety and private land mobile operations;
5) offshore radio telephone service operations;
6) radio astronomy service operations at specific sites; and
7) low-power auxiliary service operations.
Operators of MVPD receive sites, wireless microphones users, and operators of temporary BAS links must specifically register their sites to receive protection from TV band devices. There are currently 10 TV bands white space database administrators, two of which have been approved by the FCC to provide service to TV white space devices. The two currently "approved" database systems are those operated by Spectrum Bridge, Inc. and Telcordia Technologies, Inc. Other FCC-chosen administrators whose systems have not yet been approved include Airity, Inc. (formerly WSdb LLC), Comsearch, Frequency Finder, Inc., Google, Inc., KB Enterprises LLC and LS Telcom, Key Bridge Global LLC, NeuStar, Inc., and Microsoft Corporation. That certain companies have been allowed to serve as database administrators is not without controversy. Some have questioned whether it is fair to allow a potential white space equipment manufacturer, such as Google, to serve as a database administrator, since this will allow it to collect information such as the make, model, serial number, location and ownership of competitors' equipment. The FCC sought to address this concern by prohibiting all database administrators from using the information collected to engage in anticompetitive practices, either by using the information themselves or providing it to third parties. The Commission has said it will oversee the continued database developmental work to ensure that all database administrators comply with requirements in the rules to make service available to all TV band device users on a non-discriminatory basis. In a related development, OET announced yesterday that it will commence a 45-day public trial of the Key Bridge Global TV band database system beginning on March 11, 2013. The trial is intended to allow the public to access and test Key Bridge's database system to ensure that it correctly identifies channels that are available for unlicensed use, that it properly registers radio transmitting facilities entitled to protection, and provides protection to authorized services and registered facilities as specified in the rules. TV band database systems are the subject of a docketed proceeding, ET Docket No. 04-186. The Cost of Regulation A recent article in Newsmax Magazine reports that the Federal Communications Commission is the third most expensive federal agency when it comes to the compliance costs it imposes with its regulations. Quoting a report from the Competitive Enterprise Institute's (CEI) Center for Technology and Information, the article indicates that compliance with FCC regulations costs Americans $142 billion annually (behind the Environmental Protection Agency's $353 billion and the Department of Health and Human Services' $185 billion). The article goes on to note that the FCC enforced more than 25,000 regulatory restrictions in 2011, and added over 100 more in 2012 — an average of one new rule every 2.3 business days. The article also criticized the FCC's lack of transparency. Law & Regulation Expanded Bill Re-Introduced to Discourage Patent Troll Lawsuits On February 27, Congressmen Peter DeFazio (D-OR) and Jason Chaffetz (R-UT) re-introduced a modified version of the Saving High-Tech Innovators from Egregious Legal Disputes (SHIELD) legislation that failed to pass the House last year as H.R. 6245 (which protected only high-tech companies). This year's version is listed as HR. 845 and applies to all industry sectors and all types of patents. The latest draft of the bill, as of this writing, can be found here . The SHIELD bill is intended to put the financial burden on patent trolls that buy broad patents on products they did not create and then file questionable lawsuits against companies for infringement. Its proponents claim that patent trolls drained an estimated $29 billion from American companies in 201l. The telecommunications industry has experienced a rash of such lawsuits regarding DSL, cell phones and other products during recent years. The Bill requires a party alleging infringement of a patent to meet at least one of the following four conditions:
(1) the party is the inventor, joint inventor or original assignee of the patent (for example, where the inventor works for an organization or company that has the right to patent inventions made in the course of employment);
(2) the party can demonstrate that it has made substantial investments to exploit the patent through the sale of items covered by the patent;
(3) the party is an institution of higher education; or
(4) the party is a technology transfer organization whose primary purpose is to facilitate the commercialization of technology developed by one or more institutions of higher education.
A plaintiff alleging patent infringement that does not meet at least one of these conditions must post a bond in an amount determined by the court to be sufficient to pay for all costs of the prevailing party, including reasonable attorney's fees. If the plaintiff loses its patent infringement suit, the defendant is able to recover its court costs and attorney fees. Supporters of H.R. 845 include the Consumer Electronics Association, the Electronic Frontier Foundation, the National Retail Federation, and the Consumer and Communications Industry Association. Given that a similar (but more narrow) bill did not pass the previous Congress and that the current bill does not yet have a long list of co-sponsors, clients concerned about the costs of being targeted by patent trolls may want to urge their Congressmen and Senators to support the proposed legislation. Industry FCC to Examine Cell Phone Unlocking Ban; White House Critical of the Ban The Copyright Office of the Library of Congress recently reversed its longstanding position and determined that it is a violation of the Digital Millennium Copyright Act for consumers to unlock new mobile phones, even those outside of contract periods, without their wireless providers' permission, and that consumers who do so are subject to criminal penalties. The new rule applies to devices purchased on or after January 26, 2013. Under the prior interpretation, consumers could lawfully unlock the phones without carrier permission when transferring to a new wireless service provider. The Act was meant to prevent software piracy. In response to the ruling, FCC Chairman Julius Genachowski described the Copyright Office's action as raising "serious competition and innovation concerns" from a policy perspective, "and for wireless consumers, it doesn't pass the common sense test." The Chairman said that the FCC is examining the issue, but noted that the FCC may not have the authority to overturn the new Copyright Office interpretation. He indicated that Congressional action may be needed to overturn it. An online petition to the White House created on January 24th gained more than 100,000 signatures in a month, prompting a response. The White House released a statement saying that it supports "legislative fixes" that clearly state that it is not a crime to unlock a device that is not "bound by a service agreement." "This is particularly important for secondhand or other mobile devices that you might buy or receive as a gift, and want to activate on the wireless network that meets your needs — even if it isn't the one on which the device was first activated," said R. David Edelman, a senior White House advisor for Internet, innovation and privacy. "All consumers deserve that flexibility." The Competitive Carriers Association, which represents Tier II and Tier III carriers, also supports the right of consumers to unlock their devices. | 
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