Tech Law Journal Daily E-Mail Alert
June 20, 2001, 8:00 AM ET, Alert No. 212.
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Senate Commerce Committee Holds Hearings on Bells and HR 1542
6/19. The Senate Commerce Committee held a hearing on local phone competition and HR 1542, the Tauzin Dingell bill. Senators and witnesses criticized the Bell companies (Verizon, BellSouth, SBC, and US West) for failing to comply with the network opening requirements of the Telecom Act of 1996. Sen. Ernest Hollings (D-SC), the Chairman of the Committee, said that HR 1542 has no chance of passing in the Senate.
Sen. Hollings was blunt. He called the interlata data relief provisions of HR 1542 "the biggest bunch of nonsense I have ever heard of." As for its chance of passing in the Senate, he said "tell our friend Billy that the tread has come off." Rep. Billy Tauzin (R-LA), the lead sponsor of HR 1542, is the Chairman of the House Commerce Committee, which is currently addressing the Firestone issue. Sen. Hollings also criticized the Bell companies repeatedly for challenging the constitutionality of Section 271 of the Telecom Act of 1996 as a bill of attainder. This section provides that the RBOCs must satisfy the FCC that they have opened their local networks to competitors by complying with a 14 point checklist before they can offer interlata long distance services. Sen. Hollings recalled that there were numerous meetings with RBOC representatives before passage of the 96 Act, that the Bells participated in the drafting of the 96 Act, that the Bells knew of its contents, and that then the Bells challenged its 271 in court.
Sen. John McCain (R-AZ), the ranking Republican on the Committee, was less critical of the Bell companies. He stated that local phone prices have gone up 12%, and blamed it on the lack of local competition. Sen. Byron Dorgan (D-ND) stated that "I don't think the Senate is prepared to pass the Dingell Tauzin bill." He also stated that he is concerned about broadband buildout to rural areas, but that taking apart the 96 Act is not the answer. Instead, "it will only happen when there is universal service support."
Rep. Ed Markey (D-MA) was the lead off witness. He was one of the leaders of the opposition to HR 1542 on the House Commerce Committee. He attacked the Bells for litigating the constitutionality of the 96 Act, for not complying with its market opening provisions, and for consolidating from seven to four companies. He then turned to HR 1542. He argued that "there is a regulatory uncertainty that has been introduced into the market place by the introduction of this bill" and that this is keeping the competitive companies from raising capital. He also stated that the bill "is unnecessary; there is competition in the marketplace." He stated that "it is unfair" to all the competitive companies that it will drive out of business. He stated that "it is undigital", because interlata data relief is impossible from a regulatory standpoint, since data and voice traffic cannot be separated.
The Committee also heard testimony from eight outside witnesses. Seven of the eight condemned the Bell companies and their bill. See, prepared statements [PDF] of witnesses: Michael Armstrong (AT&T), Margaret Greene (BellSouth), Royce Holland (Allegiance Telecom), Clark McLeod (McLeod USA), David Rolka (Rhoads & Sinon), Dave Sullivan (State Senator, Illinois), and Gene Kimmelman (Consumers Union). Sen. Hollings invited every Bell company to send a witness. Only BellSouth agreed to attend. McLeod said that "HR 1542 has no redeeming qualities" and "moves us towards remonopolization." Holland said that "it is about Bell companies wanting to preserve their government granted monopolies." Armstrong said that "Tauzin Dingell presents a serious threat to local competition" and that "there must be meaningful penalties and damages" for Bell companies that violate the local competition provisions of the 96 Act.
House Judiciary Committee Report on HR 1542
6/18. The House Judiciary Committee completed its report on HR 1542, the Tauzin Dingell bill. The Judiciary Committee amended the bill, and then reported it unfavorably on June 13.
White House Fellows Selected
6/19. The White House Press office announced the selection of 12 White House Fellows for 2001-2002. Two appointments are notable for technology: Katherine White, an intellectual property law professor, and Steven Poizner, President of SnapTrack, a Qualcomm subsidiary.
Katherine White is an Assistant Professor of Law at Wayne State University in Detroit. She teaches and writes about intellectual property law.
Steven Poizner is President of SnapTrack, a subsidiary of Qualcomm. He founded and sold SnapTrack to Qualcomm in March 2000 for $1 Billion. SnapTrack developed GPS based technology for portable wireless devices such as cell phones and pagers. Qualcomm is now shipping GPS capable microprocessors for cell phones to Japan. The chips will be sold in devices in the U.S. later this year. These devices provide new safety and other location related services. They also raise privacy issues.
Bush Addresses Disabilities and Technology
6/19. President Bush gave a speech Washington DC regarding the Americans with Disabilities Act and computer and Internet technology. He stated that "The Internet brings a world of information into a computer screen, which has enriched the lives of many with disabilities. Yet, technology creates challenges of its own. The brilliant graphics that add life to many web pages can make it difficult for a visually impaired person to get the information he or she needs from a web site. Video technology is turning many computers into television sets. Yet, without closed captioning, many see a picture and no words. And complex keyboard commands make it difficult for a person with impaired motor skills to tap a computer's full potential."
Bush also stated that "I'm pleased to announce that when Section 508 of the Rehabilitation Act, offered by Jim Jeffords, becomes effective for all federal agencies next Monday, there will be more opportunities for people of all abilities to access government information. Section 508 requires federal agencies to make sure that the electronic and information technology they use is accessible for people with disabilities."
Bush said nothing about government regulation of the private sector's use of computer equipment, software or web site design.
Muris Appoints More Top Staff at FTC
6/19. FTC Chairman Timothy Muris made three staff appointments at the FTC. Ted Cruz will be Director of the Office of Policy Planning. Sean Royall will be Deputy Director of the Bureau of Competition, which handles antitrust matters. Alden Abbott will be Assistant Director of Policy & Evaluation. See, FTC release.
Ted Cruz was briefly Associate Deputy Attorney General at the Department of Justice. Before that, he was a Domestic Policy Advisor on the Bush Cheney campaign. He also assisted in the preparation of briefs for the U.S. Supreme Court and Florida Supreme Court on behalf of George W. Bush during the Florida election contest. Before that, he was an associate at the Washington DC law office of Cooper Carvin & Rosenthal. He also clerked for Judge Mike Luttig (4th Cir) and Chief Justice William Rehnquist. Rehnquist was Asst. Atty. Gen. in charge of the Office of Legal Counsel in the Nixon administration. Luttig was briefly head of OLC in the Bush administration. Cooper was head of the OLC in the second Reagan administration, while Carvin was his principal assistant.
Sean Royall was a partner in the Washington DC office of the law firm of Gibson Dunn & Crutcher, in its Antitrust and Trade Regulation Practice Group. He has a law degree from the University of Chicago. He has focused on antitrust litigation and counseling, business litigation, intellectual property, and false advertising. He is a Texan. He went to college at Texas A&M, clerked for Judge Patrick Higginbotham (5th Cir), and was an associate at Baker Botts. See, GDC bio.
Alden Abbott has worked at the Commerce Department since 1994, most recently as Acting General Counsel. Prior to that, he worked as an attorney advisor in the FTC's Office of Policy Planning. He has also worked at the Justice Department, Commerce Department, and as Associate Dean for Technology Policy at George Mason University Law School.
Location Privacy
6/19. The Congressional Internet Caucus Advisory Committee hosted a panel discussion titled "Wireless Privacy and the Mobile Internet". The speakers were Rep. Michael Honda (D-CA), Robert Petit (Wiley Rein & Fielding), James Dempsey (Center for Democracy & Technology), John Collins (Mobility Technologies), Marci Weisler (Vindigo), Lori Fena (TRUSTe), Jonas Niehardt (Qualcomm), and Steve Berry (CTIA).
At issue is the privacy of people who use cell phones, PDAs, in car map and traffic services, wireless tollbooth collection systems, Blackberry e-mail pagers, Bluetooth enabled devices, and anything else which can be embedded with a GPS chip, or other technology, capable of generating location data. Jonas Neihardt of Qualcomm stated that his company has just started shipping GPS capable microprocessors for cell phones to Japan; he added that similar cell phones will go on sale in the U.S. later this year. Rep. Michael Honda (D-CA) stated the problem: "what information will wireless providers collect and with whom will they share it." He added that Congress "should proceed slowly in this area."
Steve Berry of the CTIA spoke about the petition [PDF] which it filed with the FCC on Nov. 22, 2000, requesting a rule making proceeding regarding location privacy. The FCC has noticed a rule making proceeding, and received public comments. (See, WT Docket No. 01-72.)
The 106th Congress enacted, and President Clinton signed, the Wireless Communications and Public Safety Act of 1999. This bill was S 800, sponsored by Sen. Conrad Burns (R-MT), and HR 438, sponsored by Rep. John Shimkus (R-IL). It designated 911 as the universal emergency service number, and promoted wireless 911 service. The bill also amended Section 222 of the Communications Act to include cell phone call location information in the definition of customer proprietary network information (CPNI). However, the FCC has authority to strictly regulate the use of CPNI by telecommunications carriers only. (The FCC has another proceeding concerning CPNI; see, Docket No. 96-115.) The FCC does not have statutory authority to regulate the privacy practices of many other entities that may obtain location data from web enabled devices.
James Dempsey, an attorney with the Center for Democracy and Technology, therefore recommended extending the CPNI requirements to wireless service providers that obtain location data. He also recommended legislation restricting government access to location information. He stated that there should be a probable cause and warrant requirement for the government to obtain location information. Currently, neither statutory nor case law address this subject, and the FBI may be able to obtain location data simply by asking for it from wireless service providers. Dempsey advocated passage of a bill like HR 5018 (106th Congress), which passed the House Judiciary Committee last year, but did not become law.
Forbes Defeats Lucas
6/19. Republican Randy Forbes defeated Democrat Louise Lucas in a special election to fill an open seat from Virginia which had been held by former Rep. Norman Sisisky (D-VA), who died in March.
NIPC Advisory
6/19. The FBI's NIPC and the FedCIRC jointly issued an advisory regarding a vulnerability in Microsoft's IIS web server. See, also, Microsoft Security Bulletin MS01-033. The NIPC advisory states that "Attackers can remotely gain SYSTEM LEVEL ACCESS (root) on any computer running Microsoft's IIS Web server software. System-level access allows a user full access to the server, so as to install malicious code, run programs, reconfigure, add, change, or delete files." Microsoft has a patch available for downloading. (Advisory No. 01-013.)
Identity Theft
6/19. Rep. Billy Tauzin (R-LA), the Chairman of the House Commerce Committee, wrote a letter to Attorney General John Ashcroft regarding identity theft and pretexting. The letter inquires regarding existing statutes pertaining to identity theft and pretexting, and any Department of Justice efforts to enforce these statutes.
6/19. The U.S. Court of Appeals (DCCir) issued its opinion in MD/DC/DE Broadcasters Association v. FCC, denying various petitions for rehearing of the court's decision regarding Option B of the FCC's EEO rule. The Court denied petitions for rehearing, in an opinion by Judge Ginsburg. Also, the Court, en banc, issued an order denying petitions for rehearing en banc. Finally, Judge Tatel, joined by Edwards and Rogers, issued an opinion dissenting from the denial of rehearing en banc.
Wednesday, June 20
The House will meet at 10:00 AM for legislative business. No tech bills are on the agenda. However, the agriculture appropriations bill does include tech related funding for distance learning, telemedicine, and other items.
9:30 AM. The FCC will hold a meeting. The agenda includes two items. The FCC will consider a Notice of Inquiry seeking information and comment for the Eighth Annual Report to Congress on the status of competition in the market for the delivery of video programming. The FCC will also consider a Sixth Report concerning the status of competition in the commercial mobile wireless industry. Location: FCC, Portals II, 445 12th Street, SW, Room TW-C305 (Commission Meeting Room), Washington DC. See, agenda.
9:30 AM. The Senate Finance Committee will hold the first of two days of hearings on granting the President trade promotion authority. Location: Room 215, Dirksen Building.
Location Change. 10:00 AM. The House Commerce Committee's Subcommittee on Telecommunications and the Internet will hold a hearing on campaign finance reform proposals impacting broadcasters, cable operators and satellite providers. The scheduled witnesses are Lillian BeVier (University of Virginia Law School), Dwight Morris (Campaign Study Group), Andrew Wright (Satellite Broadcasting and Communications Association), Jack Sander (Belo Corporation), Joshua Sapan (Rainbow Media Holdings), Paul Taylor (Alliance for Better Campaigns). Location: Room 2322, Rayburn Building.
10:00 AM. The USITC will hold a public forum on issues relating to electronic filing and maintenance of documents. Location: Room 101, 500 E Street SW., Washington, DC 20436. See, notice.
10:30 AM. House Republicans will announce their latest version of their e-Contract with High Tech America. The participants will include House Majority Leader Dick Armey (R-TX), Rep. Billy Tauzin (R-LA), Rep. Dan Burton (R-IN), and Rep. James Sensenbrenner. Commerce Secretary Don Evans will participate via instant messaging. Location: Room HC-7, U.S. Capitol, Washington DC.
10:30 AM. The House Education and Workforce Committee's Subcommittee on 21st Century Competitiveness will hold a hearing on HR 1992, the Internet Equity and Education Act of 2001. Location: Room 2175, Rayburn Building. The scheduled witnesses are Stanley Ikenberry (American Council on Education), Joseph DiGregorio (Georgia Tech), Richard Gowen (South Dakota School of Mines and Technology),  and Omer Waddles (ITT Educational Services).
11:00 AM. The House Judiciary Committee will hold a meeting to mark up several bills, including HR 1886 (a bill to provide for appeals by third parties in certain patent reexamination proceedings), HR 1866 (a bill to clarify the basis for granting requests for reexamination of patents), and HR __ (the "21st Century Department of Justice Appropriations Authorization Act.") Location: Room 2141, Rayburn  Building.
11:30 AM. There will be a panel discussion on closing the labor skills gap at the Department of Labor's National Summit on 21st Century Workforce. The participants will included Commerce Secretary Donald Evans, Steve Ballmer (CEO of Microsoft), Harris Miller (President of the ITAA), and James Vanderslice (P/COO of Dell Computer). Location: MCI Center, 6th and G Street, Washington DC. See, notice.
12:00 NOON. FTC Commissioner Sheila Anthony will speak at the American Council of Life Insurers e-Business Conference. Location: J.W. Marriott, 1331 Pennsylvania Avenue, NW, Washington DC.
12:00 NOON. The Internet Freedom Rally will host a press conference. Location: Zenger Room, National Press Club, Washington DC.
Deadline to submit comments to the FCC in response to its Notice of Proposed Rulemaking (NPRM) regarding Reform of Access Charges Imposed by Competitive Local Exchange Carriers.
Thursday, June 21
9:30 AM. The Senate Finance Committee will hold the second of two days of hearings on granting the President trade promotion authority. Location: Room 215, Dirksen Senate Office Building.
10:00 AM. The House Commerce Committee's Subcommittee on Commerce, Trade, and Consumer Protection will hold a hearing titled Information Privacy: Industry Best Practices and Technological Solutions. Room 2123, Rayburn Building.
10:00 AM. The Senate Commerce Committee will hold a hearing on international trade issues. Location: Room 253, Russell Building.
10:00 AM. The Senate Small Business Committee will hold a hearing on S 856, the Small Business Technology Transfer Program Reauthorization Act of 2001. Location: Room 428A, Russell Building.
11:30 AM. The Senate Finance Committee will hold a hearing on several nominations. The nominees include Allen Johnson (Chief Agricultural Negotiator, USTR), William Lash (Asst. Sec. of Market Access and Compliance, DOC), and Brian Roseboro (Asst. Sec. of Financial Markets, Treasury).  Location: Room 215, Dirksen Building.
Sold Out. 12:00 NOON. The Federal Communications Bar Association will host a lunch. FCC Chairman Michael Powell will speak. Doors open at 12:00 NOON, the luncheon starts at 12:30 PM, and Powell's remarks will begin at 1:00 PM. RSVP to Arlice Johnson at Location: Congressional Senate Room, 2nd Floor, Capital Hilton, 16th & K Streets, NW, Washington DC.
12:30 PM. A Privacy Task Force will hold a press conference. For more information, contact Jake Lewis at 202-387-8030. Location: West Room, National Press Club, Washington DC.
1:00 PM. The House Judiciary Committee's Subcommittee on Crime will hold a legislative hearing and mark up session on HR 1877, the "Child Sez Crimes Wiretapping Act of 2001". Location: Room 2237, Rayburn Building.
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