Tech Law Journal Daily E-Mail Alert
December 7, 2001, 9:00 AM ET, Alert No. 323.
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House Passes Trade Promotion Authority Bill
12/6. The House passed HR 3005, the Bipartisan Trade Promotion Authority Act of 2001, by a roll call vote of 215 to 214. See, Roll Call No. 481. It is sponsored by Rep. Bill Thomas (R-CA), Rep. Cal Dooley (D-CA), and others. Trade promotion authority (TPA), which is also known as fast track, gives the President authority to negotiate trade agreements which can only be voted up or down, but not amended, by the Congress. TPA strengthens the bargaining position of the President, and the U.S. Trade Representative (USTR), in trade negotiations with other nations.
Proponents of the bill stated that without this authority, the President's bargaining power is limited, and as a result, the U.S. is not a party to most free trade agreements. Opponents said the bill lacked sufficient protections for labor, human rights, and the environment.
House Speaker Denny Hastert (R-IL) stated during the floor debate that "If this vote prevails, the President has the authority to negotiate further trade agreements. That is it. The President still has to bring those agreements back to the Congress for approval. If we don't like those deals, we can still reject them. But if we vote down this legislation, we send a terrible signal to the rest of the world. We say to the world that the Congress will not trust the President to take a lead on trade. We say to the world that the Congress is not interested in promoting trade." He added in his speech that "There are 170 free trade agreements around the world. The United States has been party to two of them. We can either watch from the sidelines or get in the game. Our high-tech communities, our farmers, our manufacturing sector, our exporters, they all want us to get in the game."
Rep. Bill Thomas (R-CA), the Chairman of the House Ways and Means Committee, which has jurisdiction over this bill, led the effort to pass the bill. He led the negotiations with pro-trade Democrats that resulted in the addition of language pertaining to labor rights and the environment that won the support of some Democrats. Thomas also managed the floor debate in support of the bill.
Rep. Cal Dooley (D-CA), Rep. William Jefferson (D-LA), Rep. John Tanner (D-TN), and Rep. Jim Moran (D-VA), were the Democrats who actively worked for passage of the bill. Rep. David Dreier (R-CA) also actively promoted the bill. As Chairman of the Rules Committee, he sent the bill to the floor with a rule that did not allow any amendments. Speaker Hastert, and other Republican leaders, rounded up Republican votes for the bill. The entire Democratic leadership opposed the bill. Bush administration officials, especially Commerce Secretary Donald Evans and U.S. Trade Representative Robert Zoellick, lobbied extensively in support of the bill.
USTR Zoellick released a statement after the vote. He said that "Today's vote will help increase momentum for our trade agenda. We are moving forward with the global trade negotiations launched in Doha last month, because we believe it is in America's strong interest to seize the opportunity to further open the world's markets for American farm products, goods, and services."
President Bush also released a statement commending the House. He said that TPA "will give me the flexibility I need to secure the greatest possible trade opportunities for America's farmers, workers, families, and consumers. Trade Promotion Authority is a key part of our trade agenda. It will help us pursue and complete trade agreements, including the global trade negotiations launched last month in Doha".
The bill has yet to pass the Senate. Because of the different make up of the Senate, there is broader support in that body for TPA. Rep. Thomas stated after the vote that "you don't need to worry about a cliff hanger vote in the Senate." However, he added that it remains to be seen if and when the Senate Democratic leadership will bring the bill to the Senate floor vote.
Analysis of the TPA Vote
12/6. The strongest predictor of a Member's vote on the TPA bill was party affiliation. All but 21 Democrats voted against TPA. All but 23 Republicans voted for TPA. The few defections tended to follow regional patterns.
Every Democrat from New England, the Mid Atlantic and Midwest, except Rep. Baron Hill (D-IN), voted against the bill. However, nine Republicans from these northern states broke party ranks and voted against the bill.
Also, in the Southern states facing the Atlantic ocean another 8 Republicans voted against the bill. In contrast, the western part of the South accounted for most of the Democrats who voted for the bill: 5 from Texas, 2 from Louisiana, and one each from Missouri, Arkansas, Tennessee, Kentucky, Oklahoma, and Kansas.
Also, some of the Democrats who voted for the bill either represent Mexican border districts, major seaports, or both. These include Norman Dicks (Tacoma), Sue Davis (San Diego and border), Jim Davis (Tampa), William Jefferson (New Orleans), Ruben Hinojosa (border), and Solomon Ortiz (Corpus Christi and border).
The West Coast state members voted almost completely along party lines. None of these Republicans voted against the bill. Only three Democrats voted for the bill: Cal Dooley, Sue Davis, and Norman Dicks.
Technology, IPR and TPA
12/6. Technology companies that export equipment, software, or services, and that seek greater protection abroad for their intellectual property rights, stand to benefit from the enactment of TPA. Technology companies, and tech groups advocated passage of the bill.
During the debate, Members who represent districts with tech companies and workers stressed the importance of TPA for technology trade. Rep. Jennifer Dunn (R-WA), whose Seattle area district is home to many Microsoft workers, stated that "trade promotion authority means strengthening intellectual property standards" and "reducing piracy" abroad. Similarly, Rep. Jay Inslee (D-WA) said that Microsoft's "intellectual property is frequently stolen overseas."
Minority Leader Dick Gephardt (D-MO) noted that while trade agreements used to be about getting tariffs down, they now cover other things, such as "how do we get intellectual property laws in countries to be enforced."
Nevertheless, members from tech districts, and members who have traditionally been strong supporters of tech, tended to vote along party lines. For example, Rep. Inslee strongly condemned the bill during the debate, and voted against it. Similarly, the members of the Silicon Valley area delegation, who are all Democrats (Anna Eshoo, Zoe Lofgren, Mike Honda, and Ellen Tauscher), voted against the bill. Rep. Rick Boucher (D-VA), a Co-Chair of the Internet Caucus, also voted no. Only a few tech Democrats crossed over to vote for the bill. Rep. James Moran from northern Virginia was one of its most vocal supporters. Rep. Bill Etheridge from the Research Triangle in North Carolina also voted for the bill.
215 to 214
12/6. Legislative votes are frequent, routine, and dull events. The House has held almost 500 roll call votes so far this year. Few of these votes are either close or controversial. The TPA vote was an exception.
Members vote electronically on the floor of the House. Each member has a Vote ID Card which is inserted into a slot. The the Member then pushes a "yes", "no", or "present" button. Votes then appear on a giant electronic board on a wall high above the chamber floor. When someone votes "yes", a green light appears by their name. When someone votes "no", a red light appears. If a Member makes a mistake, or wishes to change a vote, they may do so. The rules also allow Members to vote with paper ballots in the well of the House, just in front of the Speaker's Chair. There is a red ballot for voting "no", and a green ballot for voting "yes". See, House voting procedure.
Speaker Hastert scheduled fifteen minutes for the TPA vote. As the fifteen minutes progressed, the "no" column held a slight lead throughout. Normally, shortly after the end of the time allotted for the vote, the acting speaker asks if there are any more votes, and then closes the vote by banging the gavel. After the end of 15 minutes, the "no" column was still up by about 10 votes. Many members had not yet voted, even though they stood in the chamber. Hastert kept the vote open while TPA proponents tried to find more votes. The "no" lead slowly came down as Hastert, Thomas, Dreier, and other TPA proponents schmoozed with wavering Republicans.
After half an hour, Democrats yelled to close the vote. Hastert had his arm around a 27 year old Republican from Florida who had voted "no". But, this freshman would not budge. Dreier sat talking with a fellow Republican from southern California, who would not cast his vote. After 45 minutes, Democrats clapped in unison. Hastert prowled the aisles looking for more votes. It was an arm twisting contest, and Hastert was determined to keep the clock running until he was ahead. After an hour, Hastert was still down three votes; no more movement was taking place. But, the House chamber remained packed with Members awaiting the finish.
A dejected Bill Thomas marched down into the well, and grabbed a red ballot. He swung around to face the Republicans. He angrily held the card high over his head. This is a sign of defeat. (By voting against the proposition he would preserve the option of later bringing a motion for reconsideration.) Others rushed to the well to dissuade him.
Then, a vote switched. On the electric scoreboard, the "yes" votes were down by just one vote. Two wavering Republicans, who had not voted, cast "yes" votes. The scoreboard flashed 215 "yes", to 214 "no". The gavel dropped immediately. Hastert would allow no time for any more vote changes. It was over. TPA passed.
Afterwards, Hastert, Thomas, Dreier, Democrats who voted for the bill, and others, walked out the main front door of the House of Representatives to hold a celebratory press conference in the evening twilight. Secretary of Commerce Donald Evans and USTR Robert Zoellick joined them in front of the Capitol Building. Seattle's Jennifer Dunn proclaimed that this means "increased jobs at Microsoft and the dot coms." Dreier was jubilant in victory. Thomas was emotional; he started to thank the Democrats who actively supported the bill -- Dooley, Tanner, and Jefferson -- and broke down and cried. Hastert said "It is nice to have this bill over."
House Committee Authorizes Cyber Security Funding
12/6. The House Science Committee approved HR 3394, the Cyber Security Research and Development Act, by a unanimous voice vote. The bill, which is sponsored by Rep. Sherwood Boehlert (R-NY) and others, would authorize the funding of new research and education programs pertaining to cyber security.
Rep. Boehlert stated at the committee meeting that "Experts from industry, government and academia have told us that we simply do not have enough people conducting enough promising research on how to protect our computers and networks." He added that currently the federal government spends about $60 Million on cyber security research. He called this a "pittance". HR 3394 calls for additional funding of about $800 Million over five years.
The money would go to a variety of research and education projects. The bill contains new or additional funding for five National Science Foundation (NSF) programs. First, it would authorize appropriations of $233 Million over 5 years to the NSF to make "network security research grants". Second, it would authorize $144 Million over 5 years to the NSF to award to universities "to establish multi disciplinary Centers for Computer and Network Security Research." These programs would fund research regarding "authentication and cryptography; ... computer forensics and intrusion detection; ... reliability of computer and network applications, middleware, operating systems, and communications infrastructure; and ...privacy and confidentiality."
The bill would also authorize funding to be administered by the NSF for training undergraduate university students ($95 Million), community college students ($6 Million), and doctoral students ($90 Million) in cyber security fields.
The bill also authorizes funding for programs at the National Institute of Standards and Technology (NIST). One item authorizes $275 Million for NIST to assist universities that partner with for profit entities in long term, high risk, cyber security research. Another item authorizes $32 Million for in house research at NIST.
Rep. Eddie Johnson (D-TX) offered an amendment that she said would "keep in mind the historical black colleges" and hispanic colleges. Rep. Boehlert said he shared her concern, and "we will work cooperatively and do something from the floor." Rep. Johnson then withdrew her amendment.
Rep. Boehlert stated that he expects the bill to be voted on by the full house early next year. A companion bill has not yet been introduced in the Senate.
NTIA Chief Discusses Broadband
12/6. NTIA chief Nancy Victory gave a speech titled "Removing Roadblocks to Broadband Deployment" at a conference of the Competition Policy Institute in Washington DC. She stated that "The question is -- what are the right policies to ensure broadband services develop and are made available in a manner that best benefits our country?" However, she did not answer her question.
SEC Chief Accountant Addresses Reporting and Disclosure
12/6. Robert Herdman, Chief Accountant of the SEC gave a speech in Washington DC to the American Institute of Certified Public Accountants regarding accounting and financial disclosure. He stated that "Our existing system of financial reporting and disclosure was developed back in the 1930s and is showing its age. During the last 70 years, technology has advanced to a point where computers and the Internet are a part of our everyday lives. But relatively few changes have been made to the Commission's rules regarding what financial information is disseminated and how it is communicated. As a result, it seems like no better time exists than now to consider modernizing the system. So, we will take a fresh look, one that is no-holds barred in terms of being open to new ideas."
Unger Issues Recommendations on SEC Regulation FD
12/6. SEC Commissioner Laura Unger released a report titled "Special Study: Regulation Fair Disclosure Revisited". The SEC adopted the controversial Regulation FD on August 10, 2000. It requires that when an issuer discloses material information, it must do so publicly.
Unger's report recommends that the SEC should make it easier for issuers to use technology to satisfy Regulation FD. The SEC should expand opportunities for issuers to disseminate information online, such as through web sites, web casts, and e-mail alerts. She also recommended that the SEC should provide more guidance on materiality, and that the SEC should analyze what issuers are saying.
Senate Committee Holds Hearing on Anti Terrorism Policies
12/6. The Senate Judiciary Committee held another hearing in its ongoing series of hearings titled "DOJ Oversight: Preserving Our Freedoms While Defending Against Terrorism." Attorney General John Ashcroft testified in support of the Bush administration's anti terrorism policies. He stated in his prepared testimony that "We have used the provisions allowing nationwide search warrants for e-mail and subpoenas for payment information. And we have used the Act to place those who access the Internet through cable companies on the same footing as everyone else." See also, opening statement of Sen. Patrick Leahy (D-VT), Chairman of the Committee, and opening statement of Sen. Orrin Hatch (R-UT), the ranking Republican.
GAO Reports on E-Commerce and Taxes
12/6. The GAO released a letter [PDF] to Sen. Max Baucus (D-MT) and Sen. Charles Grassley (R-IA) dated November 6, 2001, regarding state and local revenue loss from Internet sales. The two Senators asked the GAO to determine whether the Census Bureau's estimates of e-commerce in 1999 provide a basis for revising the GAO's 2000 report on sales tax losses from e-commerce. The GAO concluded that it could not update its 2000 report because Census Bureau's definition of e-commerce is broader than Internet sales. See also, GAO report [PDF] of June 30, 2000, titled "Sales Taxes: Electronic Commerce Growth Presents Challenges; Revenue Losses Are Uncertain."
FCC Closes Library to the Public
12/6. The FCC released a notice in which it stated that "Effective December 5, 2001, and until further notice, the FCC Library will be closed to the public. This action is necessary because the Commission is using a portion of the FCC Library to house FCC employees temporarily."
More News
12/6. The The U.S. Court of Appeals for the District of Columbia Circuit heard oral argument in Channel 32 Hispanic v. FCC, No. 00-1527.
12/6. The FBI's National Infrastructure Protection Center (NIPC) issued an updated advisory regarding the mass mailing worm called "Goner".
12/6. The House Judiciary Committee's Subcommittee on Commercial and Administrative Law and Subcommittee on Courts, the Internet, and Intellectual Property held a joint hearing on the proposed settlement agreement between NextWave, the FCC, the DOJ, and the Auction 35 winning bidders. See, prepared testimony of Jay Bybee (DOJ), John Rogovin (FCC), Donald Verrilli (NextWave), and Stephen Roberts (Eldorado Communications).
12/6. The NTIA held the first session of a two day conference regarding its grant program named "Technology Opportunities Program", or TOP. See, agenda. Nancy Victory, head of the NTIA, gave introductory remarks.
Friday, Dec 7
The House will meet at 9:00 AM for legislative business.
8:30 AM - 12:30 PM. Day two of a two day conference hosted by the NTIA regarding its grant program named "Technology Opportunities Program", or TOP. See, agenda. The second day will focus on how to write TOP grant applications. The price to attend is $65. Location: Renaissance Hotel, 999 Ninth Street NW.
The Bureau of Export Administration will host a course titled "How To Classify My Item".  The price to attend is $50. For more information, contact Douglas Bell at 202 482-2642. Location: Ronald Reagan International Trade Center.
12:15 PM. The Federal Communications Bar Association's (FCBA) Wireless Telecommunications Practice Committee will host a luncheon. Julius Knapp, Deputy Chief of the FCC's Office of Engineering and Technology will be give an overview of current and future technologies using unlicensed spectrum, including Bluetooth, Wi-Fi and other products that could be used in the unlicensed bands. The price to attend its $15.00. RSVP to Wendy Parish. Location: Sidley Austin Brown & Wood, 1501 K Street, NW Conference Room 6-E.
5:00 PM. Deadline to submit nominations to the FCC to fill three vacancies on the FCC's Local and State Government Advisory Committee (LSGAC). See, FCC notice.
Monday, Dec 10
9:00 AM. National Telephone Cooperative Association (NTCA) will host a press breakfast at which it will discuss the various technologies currently deployed by NTCA members, including broadband based applications. RSVP to Donna Taylor at 703 351-2086 or Location: NTCA Headquarters, Conference Room, 4121 Wilson Blvd., 10th floor, Arlington, VA.
TIME? There will be a continuation of the hearing begun on November 27 before the U.S. District Court (DMD) in In re Microsoft Corp. Antitrust Litigation, Multi District Litigation No. 1332. This is a hearing on Settlement Agreement, which proposes a settlement of the private antitrust class action lawsuits against Microsoft alleging that it overpriced its products. Location: U.S. District Court, Baltimore, MD.
12:15 PM. The Federal Communications Bar Association's (FCBA) Legislative Practice Committee will host a discussion of the Congressional budget process and its influence on spectrum policy. The speakers will be Jim Hearn (Senate Budget Committee staff) and David Moore (Congressional Budget Office). RSVP to Liz Henderson. Location: Wilmer Cutler & Pickering, 2400 N St. NW..
1:30 - 3:30 PM. The American Enterprise Institute (AEI) will host a panel discussion titled "Should the WTO Determine U.S. Tax Policy?" The speakers will be Michael Finger (AEI), Gary Hufbauer (Institute for International Economics), Dave Brumbaugh (Congressional Research Service), John Meagher (PriceWaterhouse Coopers), Kevin Hassett (AEI). See, online information and registration page. Location: Wohlstetter Conference Center, AEI, 1150 17th Street, NW.
Tuesday, Dec 11
Day one of a two day conference hosted by the Information Technology Association of America (ITAA) titled Developing Cyber Security Solutions in the e-Gov Era. This is an invitation only event. For information, contact Shannon Kellogg at The press contact is See, agenda. Location: Executive Briefing Center, Computer Sciences Corporation, 3170 Fairview Park Drive, Falls Church, VA.
11:45 AM - 12:45 PM. Ken Feree, Chief of the FCC's Cable Services Bureau, will be the luncheon speaker at the Power Line Communications Conference. Location: Troutman Sanders.
12:15 PM. The Federal Communications Bar Association's (FCBA) Young Lawyers Committee will host a brown bag lunch. The speakers will be Commissioner Michael Copps' Legal Advisors: Jordan Goldstein, Paul Margie, and Susanna Zwerling. For more information contact Chris Moore at 202 224-9584 or moorecva or Yaron Dori at 202 637-5458 or
3:00 PM. The House Commerce Committee's Subcommittee on Telecommunications and the Internet will hold a hearing for on the proposed settlement between the U.S. and Nextwave over spectrum licenses. Room 2123, Rayburn Building.
Wednesday, Dec 12
9:00 AM. - 2:30 PM. The American Enterprise Institute (AEI) will host a program titled "Telecommunications Policy as Trade Policy: Negotiations with Japan over Interconnection Pricing". See, online information and registration page. See also, agenda, at right. Location: Wohlstetter Conference Center, AEI, 1150 17th Street, NW.
9:30 AM. The FCC will hold a meeting. The agenda includes the following: (1) a Notice of Proposed Rule Making (NPRM) initiating a comprehensive examination of the appropriate regulatory framework for incumbent local exchange carriers' (ILECs') provision of broadband services; (2) a NPRM to initiate the FCC's triennial review of the definitions of and rules concerning access to ILEC unbundled network elements; (3) an order in regarding the FCC's plans for nationwide thousands block number pooling (CC Docket No. 96-98 and CC Docket No. 99-200); (4) a second NPRM concerning new equal employment opportunity rules for broadcast licensees and cable entities; (5) a Report and Order concerning allocation and service rules to reallocate television channels 52-59; and (6) a First Report and Order to provide for new ultra wideband (UWB) devices (ET Docket No. 98-153). Location: Commission Meeting Room, FCC, 445 12th Street, SW, Room TWC305.
10:00 AM. The Senate Judiciary Committee will hold a hearing on the future of the Microsoft settlement. Location: Room 226, Dirksen Building.
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