Tech Law Journal Daily E-Mail Alert
July 31, 2001, 9:00 AM ET, Alert No. 238.
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House Votes for Extension of Export Administration Act
7/30. The House passed HR 2602 by a voice vote. This bill would extend the Export Administration Act, which is set to expire on August 20, until November 20. The extension would provide the Congress more time to work on replacement legislation to update the current export control regime.
The Senate Banking Committee passed S 149, the Export Administration Act of 2001, sponsored by Sen. Mike Enzi (R-WY), on March 22 by a vote of 19 to 1. That bill is supported by the Bush administration, but opposed by several Republican Senators who assert that it would jeopardize national security. S 149 would ease restraints on the export of most dual use products, such as computers and software. It would end export controls on high performance computers based upon MTOPS. However, it would increase penalties for remaining violations. There are several bills pending in the House; the House International Relations Committee has held several hearings.
Senate Judiciary Committee Begins Mueller Hearing
7/30. The Senate Judiciary Committee held the first day of hearings on the nomination of Robert Mueller to be Director of the Federal Bureau of Investigation. Sen. Patrick Leahy (D-VT), Chairman of the Committee, said in his opening statement that "The American public has lost some confidence in the Bureau. This is not just a PR problem. This erosion of public trust threatens the FBI's ability to perform its mission." See also, opening statement of Sen. Orrin Hatch (R-UT), the ranking Republican.
Mueller stated in his prepared testimony that "Waco, Ruby Ridge, the FBI lab, Wen Ho Lee, Robert Hanssen, and the McVeigh documents these familiar names and events remind us all that the FBI is far from perfect and that the next Director faces significant management and administrative challenges." He also stated that "while new technologies create new possibilities for the global economy, they also present new opportunities for enterprising criminals. Here, as well, the FBI is responsible for ensuring the security of our technological infrastructure and for bringing cybercriminals to justice."
The hearing continues on July 31 at 10:00 AM in Room 216 of the Hart Building.
7/30. The National Cable & Telecommunications Association (NCTA) extended the employment contract of P/CEO Robert Sachs through December 31, 2004. See, release.
More News
7/30. eBay filed a complaint in U.S. District Court (NDCal) against BidBay alleging trademark infringement.
7/30. BellSouth filed a request with the Tennessee Regulatory Authority seeking an endorsement for a Section 271 application to the FCC for permission to provide in region interLATA services. See, BS release.
7/30. The Florida Public Service Commission began hearings on the petition by AT&T, TCG South Florida, and MediaOne for structural separation of BellSouth Telecommunications into two distinct wholesale and retail corporate subsidiaries. The Regional Bell Operating Companies (RBOCs) oppose structural separation. See, BellSouth release and Verizon release.
Code Red
7/30. Officials from government agencies, groups and Microsoft held a press conference to request that companies and others running servers with Microsoft's Internet Information Services (IIS) install a patch provided by Microsoft that prevents the Code Red worm from infecting servers. See, Microsoft release.
The FBI's National Infrastructure Protection Center (NIPC) explained the threat: "The worm scans the Internet, identifies vulnerable systems, and infects these systems by installing itself. Each newly installed worm joins all the others causing the rate of scanning to grow rapidly. This uncontrolled growth in scanning directly decreases the speed of the Internet and can cause sporadic but widespread outages among all types of systems. Code Red is likely to start spreading again on July 31st, 2001 8:00 PM EDT and has mutated so that it may be even more dangerous. This spread has the potential to disrupt business and personal use of the Internet for applications such as electronic commerce, email and entertainment." See, NIPC Alert 01--016 (7/29).
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FTC NPRM on GLB Standards for Security of Customer Financial Data
7/30. The FTC published in its web site a copy of a notice of proposed rule making (NPRM) to be published in the Federal Register on the subject of standards relating to administrative, technical, and physical information safeguards for financial institutions subject to the FTC's jurisdiction. The Gramm Leach Bliley (GLB) Act, passed during the last Congress, requires the FTC and other agencies to promulgate rules establishing standards for the protection of customers' financial data. See also, FTC release.
Court Affirms Injunction of Unlicensed Broadcaster
7/30. The U.S. Court of Appeals (6thCir) issued its opinion in USA v. Szoka, a case involving an unlicensed FM radio micro broadcaster. Of course, the FCC ordered him to stop, the local District Court granted the FCC an injunction, and the Appeals Court affirmed. However, the Appeals Court's reconciliation of the issuance of an injunction with the First Amendment and the law of injunction makes interesting reading.
Jerry Szoka. The appellant broadcasted dance music, and news and information for gays and lesbians, in Cleveland, Ohio, on empty frequency (96.9 FM) at a low power (48.8 watts). He did not have a license from the FCC. He did not seek a license. He just started broadcasting.
FCC Licensing. The National Radio Act of 1927 nationalized spectrum, and created a National Radio Commission to issue licenses in the "public interest". The Communications Act of 1934 continued this framework, and transferred licensing and regulatory authority to the FCC, which licenses spectrum to this day. The Supreme Court declined to extend First Amendment protections afforded other media to broadcast media in the landmark decision, NBC v. FCC, 319 U.S. 190 (1943). The Court reaffirmed this holding in Red Lion v. FCC, 395 U.S. 367 (1969).
Low Power FM. The FCC recently instituted a program for licensing non-commercial low power FM broadcasters -- over the strenuous objections of commercial broadcasters and National Public Radio. However, this program does not extend to those who have violated FCC licensing rules in the past. Hence, Szoka is not eligible.
Legal Proceedings. The FCC moved to shut Szoka down. There is a separate proceeding in Washington DC. The FCC issued a cease and desist order. An administrative law judge rejected Szoka's First Amendment arguments. Szoka has petitioned for review by the U.S. Court of Appeals (DCCir). Oral arguments are next month. However, Szoka ignored the cease and desist order, so the FCC also filed a complaint in U.S. District Court (NDOhio) against Szoka seeking an injunction. It is the issuance of a permanent injunction by the District Court in Cleveland that is the subject of the present appeal.
Public Interest. Szoka raised the obvious, but futile, argument that the FCC's use of the courts to obtain an injunction of his broadcast operation implicates the First Amendment, to no avail. Szoka (through his attorney, Mark Wallach, of the Cleveland law firm of Calfee Halter & Griswold) also argued that for the government to obtain an injunction, it had to satisfy not only the Communications Act of 1934, but also the equitable standards for issuance of an injunction -- likelihood of success on the merits, irreparable injury, absence of substantial harm to others, and public interest in issuance of the injunction. The government argued against application of equitable standards to the FCC. Thus, it argued that in managing spectrum in the public interest, the FCC could not actually be held to a public interest standard. The Court of Appeals agreed, and so held.
The District Court, while granting the FCC its injunction, had stated in dicta that "the Court is inclined to agree that the FCC's non-commercial low-power broadcasting ban smacks of favoritism towards wealthier interest groups who do not wish to share the airwaves with non-commercial stations." It also wrote that the FCC's ban on low-power stations would run "contrary to the FCC's obligation to distribute the airwaves in a manner that furthers the 'public interest' and, thus, would be inconsistent with the First Amendment."
Court Upholds First Amendment Right of Unlicensed Printer
7/30. The U.S. Court of Appeals (8thCir) issued its opinion [PDF] in Steele v. Bemidji. This is another first Amendment case involving the government licensing of speech -- in this case, print speech. Steele filed a complaint in U.S. District Court (DMinn) against the City of Bemidji, city officials, and others, seeking relief from actions by Bemidji to prevent him from distributing his newspapers. He did not have a solicitation permit, an obstruction permit, or post a bond. The district court granted summary judgment to the defendants. The Appeals Court reversed as to Steele's First Amendment claims.
Tuesday, July 31
10:00 PM. The Senate Judiciary Committee will continue its hearing on the nomination of Robert Mueller to be Director of the FBI. Location: Room 216, Hart Building.
POSTPONED. 10:00 AM. The House Commerce Committee's Subcommittee on Oversight and Investigations will hold a hearing for titled "How Secure is Sensitive Commerce Department Data and Operations? A Review of the Department's Computer Security Policies and Practices."
10:00 AM. The House Commerce Committee's Subcommittee on Commerce, Trade, and Consumer Protection will hold a hearing titled Current Issues Before the Financial Accounting Standards Board. Location: Room 2322, Rayburn Building.
10:00 AM. The House Government Reform Committee's Technology and Procurement Policy Subcommittee will hold a hearing titled "Public Service for the 21st Century: Innovative Solutions to the Federal Government's Technology Workforce Crisis". Location: Room 2154, Rayburn Building.
10:00 AM. The House Transportation Committee's Highways and Transit Subcommittee will hold a hearing on red light cameras. Location: Room 2167, Rayburn Building.
10:00 AM. The Senate Finance Committee will hold a hearing on several pending nominations, including Rosario Marin to be Treasurer of the United States and Jon Huntsman to be a Deputy U.S. Trade Representative. Location: Room 215, Dirksen Building.
10:00 AM. Ronald Dick, Director of the FBI's National Infrastructure Protection Center, will speak on the NIPC's efforts to detect, deter, warn of, respond to and investigate malicious acts, both physical and cyber, that threaten critical infrastructures.Location: Zenger Room, National Press Club, 529 14th St. NW, 13th Floor, Washington DC.
2:00 PM. The House Science Committee's Research Subcommittee will hold a hearing titled "Innovation in Information Technology: Beyond Faster Computers and Higher Bandwidth." Location: Room 2318, Rayburn Building.
2:30 PM. The Senate Commerce Committee's Communications Subcommittee will hold a hearing on spectrum management and third generation wireless systems. The scheduled witnesses are William Hatch (NTIA), Julius Knapp (FCC), Linton Wells (DOD), Denny Strigl (Verizon Wireless), Carroll McHenry (Nucentrix Broadband Networks), Mark Kelly (Leap Wireless), Martin Cooper (ArrayComm), Thomas Wheeler (CTIA).  Location: Room 253, Rayburn Building.
Wednesday, August 1
9:30 AM. The Senate Commerce Committee will hold a hearing on trade issues. Location: Room 253, Russell Building.
10:00 AM. The Senate Finance Committee will hold a hearing on whether to extend the existing Internet tax moratorium, and whether to allow state and local governments to impose sales taxes on remote sellers, including Internet retailers. The scheduled witnesses are Tom Woodward (Congressional Budget Office), Frank Shafroth (National Governors Association), David Bullington (Wal-Mart), Frank Julian (Federated Department Stores), Michael Grieve (American Enterprise Institute), Steven Rauschenberger (National Conference of State Legislatures), and Jeff Friedman (KPMG). Location: Room 215, Dirksen Building.
10:00 AM. The Senate Banking Committee will hold a meeting to mark up legislation and to vote on nominations. The agenda includes the nominations of Michael Garcia to be Assistant Secretary of Commerce for Export Enforcement and Henrietta Fore to be Director of the Mint. Location: Room 538, Dirksen Building.
10:00 AM - 12:00 NOON. The U.S. International Telecommunication Advisory Committee Telecommunication Development Sector (ITAC-D) will hold a public meeting. 48 hour pre-clearance is required. See, notice in Federal Register, July 16, 2001, Vol. 66, No. 136, at Pages 37086 - 37087. Location: Room 2533A, Department of State, 2201 C Street, NW, Washington DC.
10:15 AM. The House International Relations Committee will meet to mark up several bills, including HR 2581, the Export Administration Act of 2001, sponsored by Rep. Benjamin Gilman (R-NY). Location: Room 2172, Rayburn Building.
10:30 AM. The House Education Committee will meet to mark up several bills, including HR 1992, the Internet Equity and Education Act of 2001, sponsored by Rep. Johnny Isakson (R-GA). The bill would make it easier to obtain federal financial aid for web based education programs. Location: Room 2175, Rayburn Building.
12:30 PM. Carl Yankowski, CEO of Palm will speak at an NPC Luncheon. For more information, call 202-662-7501 or e-mail Location: National Press Club, 529 14th St. NW, 13th Floor, Washington DC.
2:30 PM. The Senate Commerce Committee will hold a hearing on several pending nominations, including Nancy Victory to be Assistant Secretary of Commerce for Communications and Information. Location: Room 253, Russell Building.