|House Delays Consideration
of Two Tech Bills
|3/19. The House leadership delayed consideration of two
technology related bills that had been scheduled for floor
votes this week: and HR
3924, the "Freedom to Telecommute Act of 2002",
3925, the "Digital Tech Corps Act of 2002".
Both bills were introduced on March 12 by Rep. Tom Davis
(R-VA). Both are cosponsored by Rep. Dan Burton
(R-IN), the Chairman of the House Government Reform
Committee. Both were marked up by that committee on March
14. HR 3924 had been scheduled for consideration under
suspension of the rules on Tuesday, March 19. This procedure
allows for quick consideration, with no amendments, but
requires a two thirds majority for passage. HR 3295 had been
scheduled for consideration on Wednesday or Thursday, March 20
The House goes on recess at the end of this week, thus
delaying consideration of these bills at least until the House
The Freedom to Telecommute Act of 2002 is a bill to permit the
use of telecommuting by employees of federal contractors in
the performance of contracts with executive agencies.
The Digital Tech Corps Act of 2002 would establish an exchange
program between the federal government and the private sector
in order to promote the development of expertise in
information technology management. The bill states that
"On request from or with the agreement of a private
sector organization, and with the consent of the employee
concerned, the head of an agency may arrange for the
assignment of an employee of the agency to a private sector
organization or an employee of a private sector organization
to the agency. An eligible employee is an individual who (1)
works in the field of information technology management; (2)
is considered an exceptional performer by the individual's
current employer; and (3) is expected to assume increased
information technology management responsibilities in the
|Verizon Withdraws New
Jersey Long Distance Application
|3/19. Verizon withdrew
271 application to Federal
Communications Commission (FCC) to provide in region
interLATA service in the state of New Jersey. It stated in a letter
[PDF] to the FCC that "process concerns have been raise
with respect to an issue that has been the focus of dispute
between the parties -- the non-recurring charge for performing
a hot cut. To address these concerns, Verizon hereby provides
notice that it is withdrawing its application and will shortly
file to initiate a new application."
A hot cut is the process used to disconnect a line over which
a customer already is receiving service and to connect it to
another carrier's switch.
Verizon SVP Tom Tauke stated in a release
that "Verizon will refile promptly". This is CC
Docket No. 01-347.
|DOJ Report Blames Human
Error - Not Computers - for McVeigh Delay
|3/19. The Department of Justice's (DOJ) Office of the Inspector
General (OIG) released its report
[198 pages in PDF] on the delayed production of investigative
documents in the Timothy McVeigh prosecution. The report
concludes that, contrary to earlier assertions by the FBI that
computer systems caused the delay, the cause was human error.
See also, the OIG's executive
summary [14 pages in PDF] and DOJ
Sen. Charles Grassley
(R-IA), a senior member of the Senate Judiciary
Committee, who has been pressing the FBI on this issue,
commented on the OIG report. He stated that "The FBI's
excuse that 'the computer ate my homework' simply doesn't add
Inspector General Glenn Fine
issued the report. The report states that "On May 8,
2001, one week before McVeigh's scheduled execution date, the
Department of Justice and the FBI revealed to McVeigh's and
Nichols' attorneys that over 700 investigative documents had
not been disclosed to the defendants before their trials. The
government acknowledged that it had violated a discovery order
in the case, and the Attorney General stayed McVeigh's
execution for one month in order to resolve the legal issues
arising from the belated disclosure."
The report continues that "we did not conclude that the
computer system was the cause of the belated production of
documents. The FBI's computer system is antiquated and in need
of substantial improvement, but we found that human error, not
the inadequate computer system, was the chief cause of the
failure to provide the defense with these items. The failures
that we observed stemmed from individual mistakes, the FBI’s
complex document processing systems, inconsistent
interpretations of FBI policies and procedures, agents'
failures to follow FBI policies, agents' lack of understanding
of the unusual discovery agreement in this case, and the
tremendous volume of material being processed within a short
period of time."
However, the OIG report states that "We also recommend
substantially enhanced computer training and suggest that the
FBI should consider making computer usage part of the core
skills needed to graduate from the new agents training
Sen. Grassley added that "the McVeigh case reveals a
management meltdown. Documents were mishandled, procedures
were ignored, and when mistakes were discovered, supervisors
in the field covered them up and managers in headquarters
promoted those responsible. ... Those problems jeopardize
|DOJ Official Addresses
Antitrust, Politics and Technology
Kolasky gave a speech
titled "Comparative Merger Control Analysis: Six Guiding
Principles for Antitrust Agencies -- New and Old" to
antitrust regulators in Cape Town, South Africa. He offered
general principles for antitrust regulators. He also focused
on the politics of antitrust enforcement, and the problems of
applying antitrust principles to new technologies.
Kolasky is a Deputy Assistant Attorney General in the Antitrust Division of the
Department of Justice. He spoke to the International Bar
Association's Conference on Competition Law and Policy in a
He stated that "Rigorous enforcement of antitrust laws is
essential in preserving and extending the gains that open
markets have brought to national economies and the global
economy as a whole. But it is equally critical that antitrust
enforcement not become a bureaucratic obstacle to efficient
transactions and that antitrust enforcers not unnecessarily
regulate -- and thereby stifle -- the competitive forces we
mean to protect."
Six Principles of Antitrust Enforcement. He offered six
basic principles to guide antitrust officials. First,
"Antitrust enforcers should not be in the business of
picking winners or protecting losers." Second,
"efficiencies should play a central role in our analysis
of mergers and other allegedly anticompetitive conduct."
Third, "we must do everything we can to prevent antitrust
from becoming politicized." Fourth, "Antitrust
authorities should be law enforcers, not industrial policy
makers who try to move industries in a certain direction or
dictate particular market results." Fifth, "we must
work hard to ensure that the antitrust laws do not themselves
become bureaucratic roadblocks to efficient
transactions." And sixth, "We must make sure that
antitrust adapts to changes in technology and in the
Politics of Antitrust Enforcement. Kolasky went into
detail on how politics can corrupt antitrust regulation. He
stated that "As an economy grows, and the stakes become
ever larger, firms are naturally driven to seek protection and
help from their governments. They can be expected to try to
use antitrust as a weapon to be wielded against their
competitors. This is a problem faced by new antitrust agencies
and old -- newer agencies can expect to see their legitimacy
challenged, and more mature agencies are increasingly
confronted by lobbyists and public relations experts seeking
to influence decisions, not through arguments on the
competitive merits, but through the media and otherwise."
Kolasky continued that "The best thing that both new and
old antitrust enforcement regimes can do to prevent antitrust
from becoming politicized is to make sure our decisions are
soundly grounded in economic theory and fully supported by the
empirical and factual evidence. When complaints --
particularly those of competitors -- are brought to us, they
must be tested against what Joseph Schumpeter called ``the
cold metal of economic theory.´´ We must also ensure that
our decision making is transparent and fair. Senior
enforcement officials should give merging parties and
complainants an opportunity to engage them substantively
before reaching a decision, and should bring their own mature
judgment to cases and not rely uncritically on the advice of
their staffs. And, we must have in place effective mechanisms
for judicial review."
New Technologies and Antitrust. Kolasky concluded with
a discussion of new technologies. He said that "we should
recognize that in our new, knowledge based economy,
competition in some markets is driven more by innovation than
price. New economy industries frequently require very large
and risky upfront investments that will not be made without
the promise of a substantial return. They also are often
characterized by large network effects and low marginal
product costs. All of this means that the most efficient
outcome in some markets may be for a single firm to serve the
entire market for at least a period of time."
He added that "In the new economy, the costs of
regulatory missteps are therefore very high. Too much
government interference will frustrate innovation and
discourage efficient practices to the detriment of consumers
worldwide. On the other hand, a totally hands-off approach
could lead to high prices and frustrate the emergence of
potentially superior technologies -- also to the detriment of
consumers. The fact that many of the new economy industries
are global in nature, coupled with the reality that numerous
enforcement agencies may now be looking at the same
transactions, make it that much more important -- and that
much more difficult -- to get it right."
|9th Circuit Rules in
AT&T v. Coeur D'Alene Tribe
|3/19. The U.S.
Court of Appeals (9thCir) issued its opinion
v. Coeur D'Alene Tribe, a case regarding
whether AT&T must provide toll free telephone service to
an Indian tribe's gambling lottery that is offered interstate
by telephone. The case involves the jurisdiction of federal
and tribal courts, the Indian Gaming Regulatory Act (IGRA),
gambling law, and telecommunications law.
The Coeur D'Alene Tribe
engages in gambling
activities pursuant to the Indian Gaming Regulatory Act, 25
U.S.C. § 2701 et seq. It created a National Indian
Lottery that allowed off reservation participants to purchase
tickets by telephone from outside of the state of Idaho. It
sought toll free telephone service from AT&T for this lottery.
AT&T refused, citing 18
U.S.C.§ 1084(d), which provides, in part that "When
any common carrier, subject to the jurisdiction of the Federal Communications Commission,
is notified in writing by a Federal, State, or local law
enforcement agency, acting within its jurisdiction, that any
facility furnished by it is being used or will be used for the
purpose of transmitting or receiving gambling information in
interstate or foreign commerce in violation of Federal, State
or local law, it shall discontinue or refuse, the leasing,
furnishing, or maintaining of such facility ..." It had
received such letters from states.
The tribe filed a complaint in the Coeur D'Alene tribal court
against AT&T seeking declaratory and injunctive relief
pursuant to the common carrier obligations of the
Communications Act. The Act, at 47 U.S.C.
§ 201(a) provides, in part, that "It shall be the
duty of every common carrier engaged in interstate or foreign
communication by wire or radio to furnish such communication
service upon reasonable request therefor ..." The tribal
court held that the telephone lottery was lawful under the
IGRA, and enjoined AT&T from refusing to provide the
AT&T then filed a complaint in U.S. District Court (DIdaho)
against the tribe challenging the jurisdiction of the tribal
court, and its interpretation of federal statutes. The
District Court did not address tribal jurisdiction, but
granted AT&T declaratory relief that it was not obligated
to provide the toll free service, since the lottery was
illegal for allowing off reservation participation.
The Court of Appeals held that the tribal court lacked
jurisdiction, but reversed the District Court holding that the
lottery violated the IGRA. It reversed and remanded. Judge
Betty Fletcher wrote the opinion. Judge Ronald Gould dissented
in part. He would have also affirmed the District Court's
holding that the lottery was illegal.
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|Wednesday, March 20
|9:30 AM. The Senate
Commerce Committee will hold a hearing on HR
1542, the Tauzin Dingell bill. Sen. Ernest Hollings
(D-SC) will preside. Location: Room 253, Russell Building.
9:30 AM - 4:30 PM. The FTC and the Department
of Justice (DOJ) Antitrust
Division will continue their joint hearings titled
"Competition and Intellectual Property Law and Policy in
the Knowledge Based Economy." From 9:30 AM until 12:00
NOON, there will be presentations on "Business
Perspectives on Patents: Hardware and Semiconductors".
From 1:30 until 4:30 PM there will be presentations on
"Business Perspectives on Patents: Software and the
Internet". See, agenda.
Location: Room 432, FTC, 600 Pennsylvania Ave., NW, Washington
10:00 AM. The Federal Election
Commission (FEC) will hold a public hearing on its Notice of
Proposed Rulemaking [PDF] regarding campaign activity
on the Internet. The witnesses will be Robert Bauer (Perkins Coie), Alex
Vogel (National Republican
Senatorial Committee), Laurence Gold (AFL-CIO), and James
Madison Center for Free Speech). See, FEC
notice. Location: FEC, 9th floor meeting room.
10:00 AM. The Senate
Judiciary Committee's Subcommittee on Technology,
Terrorism, and Government Information will hold a hearing on identity
theft. Sen. Dianne
Feinstein (D-CA) will preside. Howard Beales, Director of
the FTC Bureau of Consumer
Protection, will testify. See, witness
list. Location: Room 226, Dirksen Building.
AM. The FCC's
Technological Advisory Council will hold a meeting. See, notice
in Federal Register. See, cancellation
notice in Federal Register. The next meeting is April 26;
notice of March 12.
12:15 PM. The FCBA's
Cable Committee will host a luncheon. The speaker will be Catherine
Bohigian, Legal Advisor to FCC Commissioner Kevin Martin.
The price to attend is $15. RSVP to Wendy Parish at wendy @fcba.org by 5:00 PM on
12:30 PM. Roy Stewart will speak at a luncheon hosted
by the Association of Federal
Communications Consulting Engineers. Stewart is currently
Chief of the FCC's Mass Media Bureau; he will become Chief of
the Office of Broadcast License Policy in the new Media
Bureau. For more information, contact Noel Luddy at luddyen @aol.com or 301
299-2270. Location: Wyndham City Center Hotel, 1143 New
Hampshire Ave., NW.
1:30 - 2:15 PM. FTC Chairman Timothy
Muris will speak at the National
Association of Attorneys General's spring meeting.
Location: Marriott Hotel, Metro Center, Washington DC.
2:00 PM. The House
Appropriations Committee's Subcommittee on Commerce,
Justice, State, and the Judiciary will hold a hearing on the
proposed budget for FY 2003 for the USTR.
Location: Room H-309, The Capitol.
6:00 - 8:00 PM. The FCBA will
host a Continuing Legal Education (CLE) seminar titled Telecommunications
201. Location: Capital Hilton Hotel, 16th and K Streets,
|Thursday, March 21
|8:30 AM - 12:00 NOON. The law firm of Steptoe & Johnson and
The Open Group will host a workshop titled "Liability and
Information Assurance: The Role of Law, Regulation, and Self
Regulation". The workshop will focus on allocating
liability for breaches of information security, and the
various roles that law, regulation, and private contractual
agreements can or should play in the allocation of
responsibility for information security failures. RSVP to salbertaz @steptoe.com.
For more information, contact mschneck @steptoe.com.
Location: 1330 Connecticut Avenue, NW.
10:00 AM. The Senate
Appropriations Subcommittee's Subcommittee on Commerce,
Justice, State, and the Judiciary will hold a hearing on the
administration's proposed budget estimates for FY 2003 for the
Federal Bureau of Investigation, Immigration and
Naturalization Service, and the Drug Enforcement
Administration. Location: Room 116, Dirksen Building.
10:00 AM. The House Financial
Services Committee will hold a hearing titled "The
Effects of the Global Crossing Bankruptcy on Investors,
Markets, and Employees". Location: Room 2220, Rayburn
11:00 AM. The House
Commerce Committee will meet to mark up HR 3833, the Dot
Kids Implementation and Efficiency Act of 2002. Location: Room
2123, Rayburn Building.
11:30 AM. FTC Chairman Timothy
Muris will be the keynote speaker at the Privacy &
American Business Eighth Annual Conference: Managing the New
Privacy Revolution. Location: Omni Shoreham Hotel, 2500
Calvert Street, NW.
12:15 PM. The FCBA's
Transactional Practice Committee will host a brown bag lunch
on satellite and other international telecommunications
transactions. RSVP to Brian Madden at 202 416-6770.
Location: Leventhal Senter
& Lerman, 2000 K Street, NW.
2:00 PM. The House
Government Reform Committee's Technology and Procurement
Policy Subcommittee will hold a hearing on titled "How
The Federal Government Can Transition From Old Economy Speed
to Become A Model for Electronic Government". Location:
Room 2154, Rayburn Building.
PM. The Senate
Commerce Committee's Subcommittee on Science, Technology,
and Space will hold hearing to examine federal research and
3:30 PM. Margaret
Radin (Stanford University Law School) will give a lecture
titled "Contract Today and Tomorrow: Binding Commitment
in the Networked World". Location: Georgetown University
Law Center, Faculty Lounge, 5th Floor, McDonough Hall, 600 New
Jersey Ave., NW.
8:00 PM. Deadline to submit applications to the National Telecommunications
and Information Administration (NTIA) for Technology Opportunity
Program (TOP) grants for FY 2002. See, notice
in Federal Register.
|Friday, March 22
|The House will not be in session.
9:00 AM. The House
Government Reform Committee's District of Columbia
Subcommittee will hold a hearing titled "Privacy v.
Security: Electronic Surveillance in the Nation's
Capital". Location: Room 2154, Rayburn Building.
10:00 AM - 1:00 PM. The Network
Reliability and Interoperability Council (NRIC) will hold
a meeting. See, FCC
notice [PDF] of March 14, and notice
in Federal Register. Location: Room TW-C305, FCC, 445 12th St.
|Monday, March 25
|The House will be in recess for the Spring District Work
Period. (The House will return on Monday, April 8). The Senate
will also be in recess.
|Tuesday, March 26
|8:00 AM - 5:15 PM. The Michigan State University Quello
Communications Law and Policy Symposium will host its Third
Annual Rethinking Access conference. See, schedule of
speakers. Location: Willard Intercontinental Hotel.