| DC Circuit Denies Requests
for Rehearing in USTA v. FCC |
9/5. The U.S. Court
of Appeals (DCCir) denied numerous petitions for rehearing
or rehearing en banc in USTA v. FCC, a case pertaining to FCC
unbundling and line sharing orders.
On May 24, 2002, a three judge panel of the Court of Appeals
issued its opinion
in USTA v. FCC, granting petitions for review of an FCC
unbundling order and line sharing order. Incumbent local
exchange carriers (ILECs) and the U.S. Telecom Association (USTA),
a group that represents them, challenged the Federal Communications Commission's
(FCC) order requiring ILECs to lease a variety of unbundled
network elements to competitive local exchange carriers (CLECs).
They also challenged an FCC line sharing order that requires
ILECs to lease to CLECs only a portion of local copper loops,
rather than the whole line, for the purpose of offering DSL
service. The Appeals Court granted both petitions. It remanded
both rules to the FCC for further proceedings.
Subsequently, the FCC, USA, AT&T, Sprint, Covad, and
WorldCom sought rehearing. On September 4, the Court of
Appeals, en banc, denied all of those requests in a series of
orders.
Herschel Abbott, BellSouth VP for Governmental Affairs, stated
in a release
that "We are gratified that the Court has held its ground
on these crucial matters. Forcing incumbent phone companies to
subsidize their competitors makes no sense. The Federal
Communications Commission is considering changing its current
UNE rules and we are confident that Chairman Powell will meet
his self imposed end of the year 2002 deadline for the
revision of these rules."
The USTA is pleased too. Walter McCormick, P/CEO of the USTA,
also stated in a release
that "We ... look forward to expeditious action. Both
judicial mandate and a return to economic growth require the
Commission to meet the Chairman's own goal of completing
action on these important issues by the end of the year."
In contrast, CompTel
urged the FCC to file a petition for writ of certiorari with
the Supreme Court. It argued that the opinion in USTA v. FCC
is "fundamentally in tension" with the Supreme
Court's TELRIC ruling. See, release.
This is the case known as USTA v. FCC. Of course, there have
been many cases named USTA v. FCC. This one is numbered
00-1012 and 00-1015. It is more fully captioned as United
States Telecom Association, Petitioner v. Federal
Communications Commission and United States of America,
Respondents, Bell Atlantic Telephone Companies, et al.,
Intervenors, No. 00-1012, consolidated with Nos. 01-1075,
01-1102, and 01-1103, and United States Telecom Association,
Petitioner v. Federal Communications Commission and United
States of America, Respondents, AT&T Corporation, et al.,
Intervenors, No. 00-1015, consolidated with No. 00-1025. |
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| FCC Creates Federal State
Forum on Regulatory Accounting Issues |
9/5. The Federal
Communications Commission (FCC) announced that it adopted
an Order on August 27 establishing a "Federal State Joint
Conference on Accounting Issues". The FCC stated in a release
[PDF] that "The Joint Conference will be charged with
ensuring that regulatory accounting data and related
information filed by telecommunications companies are
adequate, truthful, and thorough. Additionally, the Joint
Conference will provide a forum for state and federal
policymakers to consider, coordinate, and conduct initiatives
that will ensure that the collection and exchange of
regulatory accounting information is adequate and
effective."
The FCC also stated that it "prescribes the accounting
rules that govern the manner in which incumbent local exchange
carriers (LECs) record and allocate their costs and revenues
for regulatory purposes. These rules are known as the Uniform
System of Accounts (USOA). The FCC also maintains the
Automated Reporting Management Information System (ARMIS),
through which certain incumbent LECs are required annually to
report regulatory accounting information. The Joint Conference
will begin a reexamination of federal and state regulatory
accounting and related reporting requirements and make
recommendations for improvements." (Parentheses in
original.)
The order is numbered FCC 02-240. It was issued in FCC Docket
No. WC 02-269. The FCC has yet to publish the order in its web
site.
FCC Chairman Michael Powell
issued a statement [PDF] in which he wrote that creating this federal
state forum "puts in place an effective means for
examining the Commission's regulatory accounting and reporting
requirements. Its mission is straightforward -- to ensure that
our regulatory and accounting reporting requirements are
adequate to protect consumers and carry out our regulatory
responsibilities under the Communications Act."
He added that "As telecommunications regulators, we are
charged with a responsibility different than that of
securities regulators. Regulatory accounting data and
related information filed by telecommunications carriers is
used by federal and state telecommunications policymakers to
fulfill various responsibilities, such as determining
interstate access charges, evaluating federal state
jurisdictional separations, setting rates for unbundled
network elements and calculating universal service
support." (Emphasis in original.)
He concluded that "It is my hope that the Joint
Conference will engage in a thorough analysis of individual
accounting requirements to ensure that information captured in
regulated accounts is both necessary and sufficient for our
regulatory purposes."
FCC Commissioner Michael Copps
released a statement
[PDF] on August 20 advocating the prompt creation of this
forum. He stated that "in light of the accounting
depredations we have witnessed in recent months, it is
absolutely essential."
Copps asserted that "It may well be that additional,
rather than fewer, accounting procedures are required for the
discharge of federal and state regulatory responsibilities.
The Conference should also reconsider the scope of our rules
to gauge whether limiting accounting rules generally to just
dominant carriers, as is the case today, is sufficient for
protection of the public interest in these changed and
challenging times." |
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| DOJ Recommends Approval of
Verizon's Virginia Long Distance Application |
9/5. The Antitrust
Division of the Department of Justice (DOJ) issued its
evaluation recommending that the Federal
Communications Commission (FCC) approve Verizon's Section
271 application to provide in region interLATA service in
the state of Virginia.
Assistant Attorney General Charles James
stated in a DOJ
release that "The available evidence suggests that
generally, Verizon has succeeded in opening its local
telecommunications markets in Virginia to competition".
Sarah Deutsch, VP and Associate General Counsel of Verizon,
stated in a release that "we are confident that the FCC
will approve this long distance application". October 30
is the FCC's statutory deadline for issuing its decision to
approve or reject the application. |
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| PWC Study Rates USPTO Web
Site Best in Government |
9/5. Price Waterhouse
Coopers (PWC) released a report
[44 pages in PDF] titled "The State of Federal Websites:
The Pursuit of Excellence". The report picked the top 12
federal agency web sites. The U.S.
Patent and Trademark Office (USPTO) was ranked first. See
also, USPTO
release.
The report was released by PWC's Endowment for the Business of
Government. It was written by Genie Stowers of San Francisco
State University.
The report states that it "rated 148 federal websites
along the following dimensions: site services provided online,
quality of user help features, quality of services navigation,
site legitimacy, and accessibility. Based on her analysis, the
following five federal government websites were rated highest:
U.S. Patent and Trademark Office, Department of Health and
Human Services, Department of Education, Department of the
Treasury, and Department of the Navy."
The report also listed the scores and rankings for the seventh
through twelfth rated web sites: Agriculture, Mine Safety and
Health Administration, Indian Health Service, Veteran's
Affairs, Defense, Small Business Administration, Railroad
Retirement Board.
In July, IBM and PWC announced that IBM would acquire PWC's
business consulting and technology services unit. See, IBM release.
IBM has received more patents that any other company for each
of the last nine years. The USPTO issued it over 3,000 patents
in 2001. See, USPTO
report on top patenting entities in 2001. |
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| Sen. Allen Opposes Sen.
Biden's Anticounterfeiting Bill |
9/5. Sen. George Allen
(R-VA) released a statement
in which he announced and explained his reasons for
withdrawing his support for S 2395,
the Anticounterfeiting Amendments of 2002, sponsored by Sen. Joe Biden (D-DE). The
original version of the bill applied only to physical
features, such as certificates of authenticity included in
commercial shrink wrapped software, while the version of the
bill approved by the Senate Judiciary Committee dropped the
"physical" features limitation, thus expanding the
bill to cover digital or cyber authentication marks.
Sen. Biden introduced the bill on April 30, 2002. The bill, as
introduced, would amend 18
U.S.C. § 2318, regarding trafficking in counterfeit
labels and documentation for software, movies, and records.
The original bill would criminalize "illicit
authentication features", and create a private right of
action for copyright owners.
The original bill defines the term "authentication
feature" as "any hologram, watermark, certification,
symbol, code, image, sequence of numbers or letters, or other physical
feature that either individually or in combination with
another feature is used by the respective copyright owner to
verify that a phonorecord, a copy of a computer program, a
copy of a motion picture or other audiovisual work, or
documentation or packaging is not counterfeit or otherwise
infringing of any copyright". (Emphasis added.) See,
story titled "Biden Bill Would Ban Illicit Authentication
Features" in TLJ
Daily E-Mail Alert No. 423, May 2, 2002.
The Senate
Judiciary Committee amended and approved the bill on July
18, 2002. However, it removed the reference to
"physical" features.
 Sen. Allen (at right), who had been a
cosponsor of the original bill, stated that "Originally,
this bill took a scalpel's precision to a very specific and
identifiable problem, tampering with or counterfeiting
physical authentication features ... But what a difference a
word makes. Opening this legislation to the digital realm has
caused the virtually unanimous industry support behind it to
evaporate, and it has raised a host of troubling liability
issues that cause substantial harm to Internet service
providers."
Sen. Allen added that "While we all agree that those who
knowingly traffic in illegal digital content should be held
liable, this bill was not intended to be the vehicle to
address that issue ... The intense debate over digital rights
management merits more attention than taking a narrowly
focused bill that solves one real problem, and changing it in
a way that creates a host of new ones." |
|
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| House Transportation
Committee Holds Hearing on Driver's Licenses |
9/5. The House
Transportation Committee's Subcommittee on Highways and
Transit held a hearing titled "Driver's License Security
Issues."
Subcommittee Chairman Rep.
Tom Petri (R-WI) stated that "We find ourselves at a
crossroads of sorts. We want to improve the security of
driver's licenses to avoid not just their use by terrorists,
but also by other criminal enterprises and individuals. ...
But we don't want to see this occur at the expense of the
personal liberty or privacy of law abiding individuals. We
also are mindful that many of the issues we are concerned with
here today are state, not federal issues."
Several witnesses cautioned about the dangers of creating a
national identification system. The Eagle Forum's Lori
Waters stated that "The real question is not about a
person getting a driver's license fraudulently to drive around
town but rather about what else he could do with it -- open a
bank account, cash a check, get a library card, board a plane,
etc. There is no question that appropriate measures should be
implemented to minimize the potential for driver's license
fraud, and states can and are meeting this challenge. However,
some people are advocating significant federal intervention in
this state domain. In the name of security and ``anti
terrorism,´´ proposals such as driver's license
standardization and linkage of databases to tag and track
Americans are on the table for discussion."
Waters concluded that "these were bad ideas before 9/11,
and they are still bad ideas today. The answer to our security
problems is control of our borders and better intelligence.
Federal driver's license standardization is a dangerous path
that should not be taken. It is nothing more than a nice
sounding label for a national identification system."
The Center for Democracy and
Technolgy's (CDT) Ari Schwartz stated that "The state
driver's license ... is now used as a primary means of
authenticating identity in a wide range of commercial and
governmental transactions having nothing to do with operating
a motor vehicle. In the wake of the horrific attacks of
September 11, some have suggested that we should standardize
the design of the state driver's license, add more features to
the card and create data systems linked to the card."
He continued that "One year after the September 11
attacks, there is no evidence that flaws in the design and
security of drivers' licenses themselves facilitated the
hijackers in carrying out their plans. From what we know, most
of the hijackers were not using stolen, counterfeit or
altered ID cards or ID cards from a foreign country. Rather,
they were using legitimate state driver’s licenses or
non-driver ID cards obtained from DMV offices. ... These
problems are not ones that could be cured by introducing more
biometrics in the cards themselves or by creating databases
that link together state or commercial databases."
On May 1, Rep. Jim Moran
(D-VA) and Rep. Tom
Davis (R-VA) introduced HR 4633,
the Driver's License Modernization Act of 2002. This bill
would establish standards for state programs for the issuance
of drivers' licenses and identification cards. It was referred
to the House
Transportation Committee, the House Judiciary
Committee, and the House
Science Committee.
Rep. Moran stated in a release
that the bill would "Ensure drivers' licenses would be
more foolproof by including a biometric feature -- such as a
retinal scan or finger print -- on an encrypted smart chip
embedded on the drivers' licenses."
He stated also that it would "Require states motor
vehicle departments' databases to be linked, thereby allowing
one state's motor vehicle department to verify the identity of
an individual from another state applying for a driver's
license."
See, prepared testimony of witnesses: Roger
Cross (Administrator, Wisconsin Division of Motor
Vehicles),
Rep.
John Weaver (Kentucky State Representative), Sen.
Betty Karnette (California State Senator), Katie
Corrigan (ACLU), Lori
Waters (Eagle Forum), and Ari
Schwartz (CDT). See, also Transportation
Committee release. |
|
|
| Senate Judiciary Committee
Rejects Justice Owen in Party Line Vote |
9/5. The Senate
Judiciary Committee rejected the nomination of Texas
Supreme Court Justice Priscilla Owen to be a Judge of the U.S. Court of Appeals for
the 5th Circuit on a party line vote of 10-9. All of the
Democrats voted against her. President Bush labeled the action
"shameful, even by Washington standards". See, Bush
statement.
Sen. Patrick Leahy
(D-VT), Chairman of the Committee, stated that she is "a
nominee whose record is too extreme even in the context of the
very conservative Texas Supreme Court." He cited her anti
abortion and pro-business record on the Texas Supreme Court.
See, prepared
statement.
The Committee also rejected the nomination of U.S. District
Court Judge Pickering to be a Judge on the Fifth Circuit
earlier this year.
President Bush stated that "I know Justice Owen well. She
is an outstanding judge and a woman of integrity who has
received outspoken bipartisan support. Based on her
distinguished service with the Texas Supreme Court for seven
years, the American Bar Association unanimously rated her,
"well qualified," the highest rating the
organization can bestow upon a nominee. She is known to be a
fair and impartial judge who strives to interpret the law
fairly."
"What the Democrat members of the Senate Judiciary
Committee have done to Justice Owen is shameful, even by
Washington standards. They have distorted her record and
misconstrued her opinions. They have determined that a
nominee's experience, academic credentials, and character are
inconsequential."
"Justice Owen's nomination should be brought to the floor
of the Senate for a vote. If the full Senate were to vote on
her nomination today, I am confident she would be confirmed.
The Democrats on the Judiciary Committee know this, and
therefore, voted to prevent it," said Bush.
The vote will prevent Justice Owen from being considered by
the full Senate, where she would likely prevail.
Sen. Leahy also stated that he is "greatly concerned
about Justice Owen's record of ends oriented decision making
as a Justice on the Texas Supreme Court. As one reads case
after case, particularly those in which she was the sole
dissenter or dissented with the extreme right wing of the
Court, her pattern of activism becomes clear. Her legal
views in so many cases involving statutory interpretation
simply cannot be reconciled with the plain meaning of the
statute, the legislative intent, or the majority’s
interpretation, leading to the conclusion that she sets out to
justify some pre-conceived idea of what the law ought to
mean."
Sen. Leahy also referenced Bush's advisor, Karl Rove. He said
that "Plucked from a law firm by political consultant
Karl Rove, Justice Owen ran as a conservative, pro-business
candidate for the Texas Supreme Court, and she received ample
support from the business community. She fulfilled her
promise, becoming the most conservative judge on a
conservative court, standing out for her ends oriented,
extremist decision making. Now, on a bigger stage, the
President and Mr. Rove want a repeat performance".
Attorney General John Ashcroft
also condemned the vote. He said that "today marks the
first time in U.S. history that a judicial nominee who has
been unanimously rated 'well-qualified' by the ABA was voted
down." He also said that "Senate Democrats have
indicated an unfortunate trend toward unfairness against
qualified women nominated by this Administration." He
cited two other judicial nominees -- Deborah Cook and Carolyn
Kuhl -- as examples. See, Ashcroft
statement. |
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|
|
| FCC Announces Agenda for
September 12 Meeting |
9/5. The Federal
Communications Commission (FCC) announced the agenda for
its September 12 open meeting. There are two items. First, the
FCC will consider a Notice of Proposed Rulemaking (NPRM)
concerning its media ownership rules, pursuant to Section
202(h) of the Telecommunications Act of 1996.
Second, the FCC will consider a NPRM and Memorandum Opinion
and Order concerning possible revisions to the rules on
unsolicited advertising over the telephone and facsimile
machine and the possible establishment of a national do not
call list. This is CC Docket No. 92-90.
The meeting will be held at 9:30 AM in the FCC's Commission
Meeting Room (TW-C305). |
|
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| Friday, September 6 |
The House and Senate will hold a joint meeting in New York
City to commemorate the terrorist attacks of September 11,
2001.
9:30 AM. The U.S.
Court of Appeals (DCCir) will hear oral argument in Motion
Picture Association of America v. FCC, No. 01-1149. Judges
Edwards, Henderson and Rogers will preside. Location: 333
Constitution Ave., NW.
8:30 AM - 4:00 PM. Day two of a two day conference titled
"Symposium on the Role of Scientific and Technical
Data and Information in the Public Domain" hosted by
the National Academy of Sciences.
See, agenda.
Location: National Academy of Sciences Auditorium, 2100 C
Street NW.
Day three of a three day meeting titled "U.S. Ireland
Business Summit". See, conference web site.
Location: Ronald Reagan Building. |
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| Monday, September 9 |
9:30 AM. The U.S.
Court of Appeals (DCCir) will hear oral argument in WorldCom
v. FCC, No. 01-1198. Judges Tatel, Garland and Williams
will preside. Location: Courtroom 20, 333 Constitution Ave.,
NW.
Day one of a two day conference on patent interference law,
hosted by the Intellectual
Property Owners Association (IPO). For more information,
call 202 466-2396. Location: Ronald Reagan International Trade
Center. |
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|
| Tuesday, September 10 |
9:30 AM. The U.S.
Court of Appeals (DCCir) will hear oral argument in AT&T
v. FCC, No. 01-1188. Judges Ginsburg, Sentelle and
Silberman will preside. Location: 333 Constitution Ave., NW.
10:00 AM. The Senate
Judiciary Committee will hold a hearing to examine the
implementation of the USA PATRIOT Act, focusing on the
expansion of the Foreign Intelligence Surveillance Act
(FISA). Location: Room 226, Dirksen Building.
12:00 NOON. The FCBA's
Engineering and Technical Practice Committee will host a brown
bag lunch titled "Spectrum Management Reform:
Preliminary Perspectives". The scheduled speakers are
Paul Kolodzy (FCC Senior Spectrum Policy Advisor) and Mike
Gallagher (NTIA).
RSVP to Lisa Gaisford.
Location: FCC, 445 12th St., SW, Courtyard Level, Conference
Rooms B418 & B511.
12:00 NOON. Deadline to submit written commits to the Office
of the USTR in response to its
notice
in the Federal Register requesting comments on China's
compliance with the commitments it made in connection with its
accession to the World Trade
Organization (WTO).
Day two of a two day conference on patent interference law,
hosted by the Intellectual
Property Owners Association (IPO). For more information,
call 202 466-2396. Location: Ronald Reagan International Trade
Center.
The Intellectual Property Owners
Association (IPO) Board of Directors will hold a meeting. |
|
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| Thursday, September 12 |
8:00 AM - 5:30 PM. Day one of a two day conference hosted by
the International Intellectual
Property Institute (IIPI) titled "Specialized
Intellectual Property Courts". See, IIPI
release and online
registration form. Location: George Washington University
Law School, Moot Court Room, 2000 H Street, NW.
9:30 AM. The FCC will hold a
meeting. The FCC will consider a Notice of Proposed Rulemaking
(NPRM) concerning its media ownership rules, pursuant to
Section 202(h) of the Telecommunications Act of 1996. It will
also consider a NPRM and Memorandum Opinion and Order
concerning possible revisions to the rules on unsolicited
advertising over the telephone and facsimile machine and the
possible establishment of a national do not call list. This is
CC Docket No. 92-90. Location: FCC, 445 12th Street, SW, Room
TW-C05 (Commission Meeting Room).
2:30 PM. The Senate
Commerce Committee's Subcommittee on Science, Technology,
and Space Subcommittee will hold a hearing to examine S
2537, the Dot Kids Implementation and Efficiency Act of
2002, and HR
2417, the Dot Kids Domain Name Act of 2001. These bills
would facilitate the creation of a new second level Internet
domain within the U.S. country code domain that would provide
a safe online environment for children. The House has already
passed another version -- HR
3833. Location: Room 253, Russell Building.
Deadline to submit comments to the FCC regarding WorldCom's August 8, 2002,
petition for declaratory ruling pursuant to 47 C.F.R.§ 1.2,
that requesting carriers are entitled to access ILEC Line
Information Database data at cost based rates when they use
such data to provide interexchange and exchange access
service. This is CC Docket No. 01-338. See, FCC
notice [PDF]. |
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| Friday, September 13 |
9:00 AM - 5:00 PM. Day two of a two day conference hosted by
the International Intellectual
Property Institute (IIPI) titled "Specialized
Intellectual Property Courts". See, IIPI
release, online
registration form, and agenda at right. Location: Markey
National Courts Bldg., 717 Madison Place, NW.
10:45 AM. Press conference associated with the International Intellectual
Property Institute's (IIPI) conference titled "Specialized
Intellectual Property Courts". Location: Court Room
203, Markey National Courts Bldg., 717 Madison Place, NW.
10:00 AM. The FCC's Network Reliability and
Interoperability Council (NRIC) will hold a meeting.
Location: FCC, 445 12th Street, SW, Commission Meeting Room.
Deadline to submit comments to the FTC
regarding its proposed consent agreement with MSC Software Corporation.
See, Agreement
Containing Consent Order [22 pages PDF]. See, notice
in Federal Register. |
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| People and Appointments |
| 9/5. The Senate
Judiciary Committee approved the nomination of U.S.
District Court Judge Reena Raggi to be a Judge of the
U.S. Court of Appeals for the Second Circuit. |
|
|
| More News |
| 9/5. The House
Judiciary Committee met to mark up several bills. The last
item on the agenda was HR 4561,
the Federal Agency Protection of Privacy Act, sponsored
by Rep. Bob Barr
(R-GA). The bill would require federal agencies to the agency
shall prepare and make available for public comment an initial
privacy impact analysis when it proposes new regulations. The
Committee held over this item. The Committee has not yet
scheduled its next mark up meeting. |
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|
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