|DC Circuit Rules on FCC
Fees in COMSAT v. FCC
|3/22. The U.S.
Court of Appeals (DCCir) issued its opinion
v. FCC, a case regarding fees paid to the Federal Communications Commission
(FCC) by regulated entities.
U.S.C. § 159(a)(1) provides that "The Commission, in
accordance with this section, shall assess and collect
regulatory fees to recover the costs of the following
regulatory activities of the Commission: enforcement
activities, policy and rulemaking activities, user information
services, and international activities."
Until 1995, the FCC exempted Comsat from the payment of fees.
In 1996, the FCC instituted a special "signatory
fee" for COMSAT. The Court of Appeals held that it was
invalid because it was not instituted pursuant to a rule
making proceeding or change in law. See, COMSAT v. FCC, 114
F.3d 223 (D.C. Cir. 1997), also known as COMSAT I.
In 1998, PanAmSat, a competitor of COMSAT, sought review of
the FCC's fee exemption for COMSAT. The Appeals Court then
wrote that the statute makes "no suggestion that Comsat
should be exempt," and remanded to the FCC for
reconsideration of the exemption. See, PanAmSat Corp. v. FCC,
198 F.3d 890 (D.C. Cir. 1999).
In 2000, the FCC adopted a Report and Order that assessed
COMSAT's space station fee at $1,609,050 -- calculated as
$94,650 for each of its 17 geosynchronous space stations.
COMSAT then brought this petition for review, challenging both
the FCC assertion that it can collect fees from COMSAT, and
the amount of the fees. The Appeals Court, relying on its
PanAmSat opinion, denied the petition.
The Court continued that "the $1.6 million in fees
assessed to COMSAT seem to bear no relation to the signatory
related costs that the Commission identified COMSAT as having
created and that it has said it wishes to recover. Signatory
related costs apparently amounted to only $233,425 in 1996,
and although the record lacks reported figures for 2000, an
extrapolation on the basis of the change in the regular fee
per satellite would yield an estimate for Intelsat signatory
related costs in 2000 of about $442,000, only about a quarter
of the fees actually assessed" However, the Court did not
overturn the fee amount.
COMSAT did not raise, and the Court did not address, whether
fees that "bear no relation to the signatory related
costs" are fees, as opposed to taxes. The
administration's FCC FY
2003 budget proposal requests that the FCC be funded at
the level of $278,092,000. Of this, $248,149,000, or 89
percent, would come from "regulatory fees".
|Sen. Dorgan Addresses Trade
|3/22. Sen. Byron Dorgan
(D-ND) spoke at length in the Senate in opposition to HR 3005,
which would extend trade promotion authority (TPA) to the
President. TPA would permit the President to negotiate trade
agreements that the Congress could accept or reject, but not
amend. It is also known as "fast track authority".
He stated that "I do not believe Congress should grant
fast track authority. I think it is undemocratic. I do not
believe it is necessary for us to have fast track authority in
order to negotiate trade agreements. We negotiate the most
sophisticated agreements without fast track authority. Nuclear
arms treaties are negotiated and brought to the Congress
without fast track authority. Only trade agreements, we are
told, must have this handcuff put around Members of Congress,
so they cannot offer any amendments."
Sen. Dorgan added that "Our government is not ensuring a
level playing field. We have stacked the deck with bad
international trade agreements, ineffective trade negotiators
and bad agreements, one after the other."
The House approved HR 3005 on December 6, 2001. The Senate Finance
Committee approved its version of the bill later in
December by a vote of 18 to 3. Senate Majority Leader Tom Daschle (D-SD) has
not yet scheduled a date for consideration of the bill.
|People and Appointments
|3/22. William Hooton was appointed Assistant Director
of the Federal Bureau of
Investigation (FBI) for the Records Management Division.
Hooton previously worked for Tower Software, a records
management software company, and for Science Applications
International Corporation. Before that he worked in digital
images management at the National Archives. Before that, he
worked for the IRS. See, FBI
3/22. The Senate confirmed Randal Quarles to be a
Deputy Under Secretary of the Treasury. See, Cong. Rec., March
22, 2002, at S2343.
3/22. The Senate confirmed Kenneth Lawson to be an
Assistant Secretary of the Treasury. See, Cong. Rec., March
22, 2002, at S2343.
|IT Groups Oppose Hollings
|3/22. Several information technology groups announced their
opposition to S
2048, the "Consumer Broadband and Digital Television
Promotion Act". Sen.
Ernest Hollings (D-SC) and other Senators introduced this
copy protection bill on March 21. The bill would direct the Federal Communications Commission
(FCC) to adopt rules for hardware and software makers
mandating security system standards and encoding rules to
protect copyrighted digital content.
Harris Miller, President of the Information
Technology Association of America (ITAA), stated that
"This is an anti consumer, anti progress bill pure and
simple. As we move into the 21st Century, movie chieftains
want to gallop back toward the 19th. On the eve of the Academy
Awards ceremony, where Hollywood honors itself in a lavish
show, the entertainment lobby in Washington has crafted this
misdirected legislation that would introduce new, onerous
government mandates on the IT sector and consumers requiring a
single one size fits all solution to the problem of digital
piracy. Instead of realizing that the movie industry and the
IT industry have common goals -- to offer consumers exciting
content in as many different formats and delivery vehicles as
they wish, while preventing illegal use of that content --
Hollywood has decided that the interests of consumers are
outweighed by its desire to stop a few bad actors from content
pirating." See ITAA
Jonathan Zuck, President of the Association for Competitive
Technology (ACT), stated that the bill provides "for
government interference in a process best handled by the
market." He added that "the federal government has
difficulties creating standards for cutting edge
Robert Holleyman, P/CEO of the Business
Software Alliance (BSA), stated that "A broad
government technology mandate is not a solution to the piracy
problem. Unfortunately, no one solution will solve all piracy
threats in all circumstances. The technology industry loses
more than $11 billion each year to software piracy, so we
share the movie industry’s passion for resolving this issue.
The voluntary multi industry efforts currently underway should
be permitted to continue in order to identify effective,
workable market solutions." See, BSA
Ken Kay, Executive Director of the Computer Systems Policy Project
(CSPP), stated that "Government mandates on technology
products, as proposed in the Hollings bill, will decrease
consumer choice, degrade product performance, stifle
innovation, and reduce global competitiveness for US IT
products. The best solution to protecting digital content is a
marketplace driven solution."
|House Commerce Committee
| 3/22. Rep.
Ernie Fletcher (R-KY) was appointed to the House Commerce Committee.
He replaces former Rep. Steve Largent (R-OK), who resigned
from Congress last month to run for Governor of Oklahoma.
Fletcher was also appointed to the Subcommittee on Environment
and Hazardous Materials, and to the Subcommittee on Oversight
and Investigations. Rep.
Charles Bass (R-NH), who is already a member of the
Commerce Committee, will take Largent's place on the
Subcommittee on Telecommunications and the Internet. Both
Fletcher and Bass voted for passage of HR
1542, the Tauzin Dingell bill; Largent had been one of its
leading opponents. See, Committee
|3/22. The Bivings Group
released a report
[PDF] titled "The Internet's Role in Political Campaigns:
Utilization by Incumbent United States Senators and
Representatives in 2002". The report concludes that
"Less than 30 percent of the campaign committees for
incumbent U.S. Senators and Representatives have a functional
website specifically for the 2002 election." The Bivings
Group is a Washington DC based public relations firm.
3/21. Billy Joe Acosta plead guilty in U.S. District Court (NDCal)
to one count of criminal copyright infringement in
violation of 18
U.S.C. § 2319(c)(1) and 17 U.S.C.
§ 506(a)(2). He stated in his plea agreement [PDF] that
in 2000, he "offered for sale over the Internet on eBay
and Yahoo! auctions at least 10 copies of recordings of a live
musical performance by Thirty Odd Foot of Grunts (a rock band
that features Russell Crowe) on August 4, 2000 in Austin,
Texas, that contained copyrighted songs." (Parentheses in
original.) Joseph Sullivan is handling the case. He works in
the Computer Hacking and Intellectual Property Unit in the
U.S. Attorney's Office (USAO) for the Northern District of
California. See also, USAO
release and information
3/22. Six groups wrote a letter
[PDF] to Members of Congress expressing their opposition to
the pending EchoStar DirecTV merger. They asked that
legislators "oppose the merger and make your voice heard
by writing the Department of Justice and the Federal
Communications Commission." The groups are the American Antitrust
Institute (AAI), National
Association of Broadcasters (NAB), USAction, National Rural Telecommunications
Cooperative (NRTC), National Rural Electric Cooperative
Association, and the American Cable Association. The AAI
asserts the merger "violates antitrust laws".
|Monday, March 25
|The House and Senate will be in recess for the Spring
District Work Period. Both bodies will return on Monday, April
9:15 AM - 12:25 PM. The Department
of Commerce will host a roundtable titled
"Understanding Broadband Demand: Broadband & Business
Productivity". The event will be chaired by Phil Bond
(Under Secretary for Technology), Kathleen Cooper (Under
Secretary for Economic Affairs), and Bruce Mehlman (Assistant
Secretary for Technology Policy). See, agenda.
Location: Room 4830, U.S. Department of Commerce, 14th &
Constitution Avenue, NW.
|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.
|Wednesday, March 27
10:00 AM. The Progress
and Freedom Foundation will hold a press conference to
release a survey based report titled "Privacy Online: A
Report on the Internet Practices and Policies of Commercial
Websites". Location: National
Press Club, Holeman Lounge, 529 14th St. NW, 13th Floor.
11:00 AM. The Cato Institute
will host a panel discussion on spam. The speakers will be
Howard Beales (FTC), Rebecca Richards (TRUSTe),
Chris Hoofnagle (EPIC), and
Jerry Cerasale (Direct Marketing Assoc.). See, online
registration page. Lunch will follow the program.
Location: Cato, 1000 Massachusetts Ave., NW.
12:15 PM. The FCBA's
Telecom Competition Committee will host a brown bag lunch. The
speakers will be Jim
Bird, head of the FCC's transactions team, and other
FCC representatives. RSVP to Wendy Parish at wendy @fcba.org. Location:
FCC, 445 12th Street, SW, Eighth Floor, Conference Room 1.
12:30 PM. Larry Thompson, Deputy Attorney General of
the U.S., will speak at the Heritage
Foundation. See, notice.
Location: 214 Massachusetts Ave NE.
|Thursday, March 28
12:15 PM. The FCBA's
Young Lawyers Committee will host a brown bag luncheon. The
topic will be "Putting the ``Mass´´ Back in Media -- A
First Amendment Right to Bulk Up." The speaker will be Paul
Gallant, Special Advisor to Kenneth Ferree, Bureau Chief
of the Cable Services Bureau, and a member of the Media
Ownership Working Group. RSVP to rwallach @willkie.com.
Location: Willkie Farr &
Gallagher, 1155 21st Street, NW (between L & M), 6th
4:00 PM. John
Duffy (Marshall Wythe School of Law) will give a lecture
titled "The Puzzling Persistence of the Ideal of Marginal
Cost Pricing in the Economic Analysis of Patents". For
more information, contact Robert Brauneis at rbraun @main.nlc.gwu.edu
or 202 994-6138. Location: George Washington University Law
School, 2000 H Street, NW.
Deadline to submit comments to the FCC regarding
ways to improve its electronic licensing systems. See, FCC
|Friday, March 29
Extended deadline to submit public comments to the FTC
regarding the use of disgorgement as a remedy for competition
violations, including those involving the Hart Scott Rodino (HSR)
Premerger Notification Act, FTC Act, and Clayton Act. See,
original FTC release
and Federal Register notice,
and FTC release
and Federal Register notice
extending deadline from March 1 to March 29.
Deadline to submit comments to the FTC
regarding proposed new Privacy Act system of records. This
system, if adopted, would include telephone numbers and other
information pertaining to individuals who have informed the
Commission that they do not wish to receive telemarketing
calls. See, notice
to be published in the Federal Register.
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