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March 27, 2003, 9:00 AM ET, Alert No. 632.
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Bush Issues Executive Order Affecting Classification of Infrastructure Information

3/35. President Bush issued an Executive Order that amends Executive Order 12958, pertaining to "Classified National Security Information".

This order, as amended, "prescribes a uniform system for classifying, safeguarding, and declassifying national security information, including information relating to defense against transnational terrorism".

Section 1.4 lists the categories of information that are subject to classification. It provides, in part, that "Information shall not be considered for classification unless it concerns: ...  (c) ... cryptology; ... (e) scientific, technological, or economic matters relating to the national security, which includes defense against transnational terrorism; ... (g) vulnerabilities or capabilities of systems, installations, infrastructures ..."

The original version of Executive Order 12958, which was issued by former President Clinton on April 17, 1995, included slightly different language. It referenced "vulnerabilities or capabilities of systems, installations, projects or plans relating to the national security". That is, Bush's version adds the term "infrastructures". Bush's order also adds the reference to "transnational terrorism".

This, then, raises the question of what are "infrastructures". The order defines forty-two of its terms, but contains no definition of "infrastructures".

The recently enacted Homeland Security Act contains a provision providing a Freedom of Information Act (FOIA) exemption for "critical infrastructure information". See, HR 5005 (107th Congress), Public Law No. 107-296. This act defines the term as follows:

"The term `critical infrastructure information´ means information not customarily in the public domain and related to the security of critical infrastructure or protected systems -- (A) actual, potential, or threatened interference with, attack on, compromise of, or incapacitation of critical infrastructure or protected systems by either physical or computer-based attack or other similar conduct (including the misuse of or unauthorized access to all types of communications and data transmission systems) that violates Federal, State, or local law, harms interstate commerce of the United States, or threatens public health or safety;  (B) the ability of any critical infrastructure or protected system to resist such interference, compromise, or incapacitation, including any planned or past assessment, projection, or estimate of the vulnerability of critical infrastructure or a protected system, including security testing, risk evaluation thereto, risk management planning, or risk audit; or (C) any planned or past operational problem or solution regarding critical infrastructure or protected systems, including repair, recovery, reconstruction, insurance, or continuity, to the extent it is related to such interference, compromise, or incapacitation."

If the term "infrastructures", as used in President Bush's executive order, is interpreted to have a meaning similar to the term "information infrastructure", as used in the Homeland Security Act, then cyber security information could be classified. This would make it more difficult for the public to obtain information from the government regarding its activities and operations pertaining to cyber security.

The new order also provides, at Section 4.1(f), that "Consistent with law, directives, and regulation, an agency head or senior agency official shall establish uniform procedures to ensure that automated information systems, including networks and telecommunications systems, that collect, create, communicate, compute, disseminate, process, or store classified information have controls that: (1) prevent access by unauthorized persons; and (2) ensure the integrity of the information."

Section 6.1 defines "Automated information system" as "an assembly of computer hardware, software, or firmware configured to collect, create, communicate, compute, disseminate, process, store, or control data or information."

Section 6.1 defines "Telecommunications" very broadly. It is "the preparation, transmission, or communication of information by electronic means".

The amended order also contains a preamble. It states, in part, that "Our democratic principles require that the American people be informed of the activities of their Government. Also, our Nations progress depends on the free flow of information. Nevertheless, throughout our history, the national defense has required that certain information be maintained in confidence in order to protect our citizens, our democratic institutions, our homeland security, and our interactions with foreign nations. Protecting information critical to our Nations security remains a priority."

DOJ Requires Univision to Divest Interests in Entravision Before Acquiring Hispanic Broadcasting

3/26. The Department of Justice's (DOJ) Antitrust Division filed a complaint in U.S. District Court (DC) against Univision Communications and Hispanic Broadcasting Corporation (HBC) seeking injunctive relief to block Univision's proposed acquisition of HBC. The DOJ also settled the case.

Univision is the largest broadcaster of Spanish language television programming in the U.S. It also has one cable channel, internet web sites, and music recording, distribution, and publishing operations. HBC operates over 60 mostly Spanish language radio stations. Entravision Communications, which is not named in the complaint, operates over 50 mostly Spanish language radio stations. The DOJ alleges that the transaction would lessen competition in the sale of advertising time on many Spanish language radio stations.

The DOJ simultaneously filed a proposed consent decree that would settle the lawsuit. The settlement would require Univision to sell a significant portion of its partial ownership in Entravision, relinquish its right to two seats on Entravision's Board of Directors, and give up give up the right to vote its shares or veto certain Entravision business decisions.

Hewitt PateHewitt Pate (at right), the Acting Assistant Attorney General in charge of the Antitrust Division, stated in a release that "The changes required by the consent decree will enable advertisers that rely on Spanish-language radio to reach their targeted audience and to continue to benefit from competitive prices".

See also, Stipulation and Order proposed Final Judgment

Do Not Call Registry Compliance Required On October 1

3/25. The Federal Trade Commission (FTC) announced that, pursuant to its amended Telemarketing Sales Rule (TSR), "As of October, it will be illegal for most telemarketers to call a number listed on the registry." See, FTC release and FTC "Do Not Call" registry web page.

The FTC released its amended Telemarketing Sales Rule (TSR) on December 18, 2002, which included creation of the do-not-call registry. The Congress passed, and the President signed, the Do-Not-Call Implementation Act (HR 395), earlier this year. It is now Public Law No. 108-10.This bill authorizes the FTC to collect fees for the implementation and enforcement of its "do-not-call" registry. This allows consumers to opt out of receiving unwanted telephone solicitations. It also prohibits telemarketers from calling those telephone numbers listed on the registry.

On March 26, the FTC published a notice in the Federal Register announcing that "the Commission has decided to extend the date by which it will require full compliance with Sec. 310.4(b)(4)(iii) of the Amended Telemarketing Sales Rule (``TSR´´) until October 1, 2003." See, Federal Register, March 26, 2003, Vol. 68, No. 58, at Pages 14659 - 14660.

Also, on March 25 the Federal Communications Commission (FCC) released a Further Notice of Proposed Rulemaking (FNPRM) [PDF] in its proceeding titled "In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991". This is CG Docket No. 02-278. This FNRPM is mandated by the Do-Not-Call Implementation Act.

FCC Announces Appointments to Office of General Counsel

3/26. The Federal Communications Commission (FCC) announced several appointments in its Office of General Counsel (OGC).

Linda Kinney was named Acting Deputy General Counsel. She has worked at the FCC since 1994, and is currently Associate General Counsel. She previously worked as a legal advisor to former FCC Commissioner Susan Ness. Before working for the FCC, she worked for Whalen & Company, and in the San Francisco office of the law firm of Graham & James.

John Stanley was named Assistant General Counsel. He will focus on wireline competition issues. He joined the FCC in May 1999, and is currently Assistant Chief of the Competition Policy Division in the Wireline Competition Bureau (WCB). He previously worked for the Washington DC law firm of Wiley Rein & Fielding.

Jeff Dygert was named Deputy Associate General Counsel in the OGC's Administrative Law Division (ALD). He will have general oversight responsibility for the OGC agenda review process. He joined the FCC in 1996, and is currently a Deputy Division Chief in the WCB.

Marilyn Sonn was named Assistant General Counsel in the OGC's ALD. She will have oversight responsibility for agenda items from the FCC's Media Bureau. She has worked for the FCC since 1997. She previous worked for the law firm of Arent Fox Kintner Plotkin & Kahn.

David Horowitz was named Assistant General Counsel in the OGC's ALD. He will have oversight responsibility for agenda items from the Wireless Telecommunications Bureau and International Bureau. He has worked for the FCC since 1988, and is currently an attorney advisor in the OGC.

John Rogovin remains General Counsel.

For more information, contact Audrey Spivack at or 202 418-0512. See, FCC release [PDF].

More People and Appointments

3/26. President Bush nominated Michael Garcia to be an Assistant Secretary of Homeland Security for the Bureau of Immigration and Customs Enforcement (BICE). See, White House release and DHS release.

3/24. The Senate confirmed Gregory White to be the U.S. Attorney for the Northern District of Ohio.

3/25. The Coordination Committee of the World Intellectual Property Organization (WIPO) recommended that Kamil Idris be reappointed as Director General of the WIPO for a second six year term. See, WIPO release.

More News

3/26. Federal Communications Commission (FCC) Commissioner Michael Copps announced that he will hold another field hearing on media concentration. This one will take place in Durham, North Carolina. He has recently conducted hearings in Richmond, Virginia, and in Seattle, Washington. See, release [PDF].

3/25. Assistant Secretary of the Treasury Pam Olson gave a speech to the Conference on US German Economic Relations regarding the significance of globalization for the U.S. tax system. She stated that "From the vantage point of an increasingly global marketplace, our tax rules appear outmoded, at best, and punitive of U.S. economic interests, at worst. Most other developed countries of the world are concerned with setting a competitiveness policy that permits their workers to benefit from globalization." She also said that "The U.S. tax system should not distort trade or investment relative to what would occur in a world without taxes. Every country makes sovereign decisions about its own tax system, so it is impossible for the U.S. to level all playing fields simultaneously. But we can ensure that our own rules minimize the barriers to the free flows of capital that globalization necessitates." She speaks on this topic regularly.

There will not be an issue of the TLJ Daily E-Mail Alert on Friday, March 28.
Thursday, March 27

The House will meet at 10:00 AM. It may consider HR 1104, the Child Abduction Prevention Act; see, copy of bill [25 pages in PDF] as amended and approved by the House Judiciary Committee on March 18.

Day four of a convention of the National Telecommunications Cooperative Association (NTCA) titled "NTCA 2003 Legislative and Policy Conference". At 8:15 AM Rep. Bob Goodlatte (R-VA) will speak. See, notice and conference agenda [PDF]. Press contact: Donna Taylor at 703 351-2086 or, or Aaryn Slafky at 703 351-2087 or

8:00 AM - 2:30 PM. The Information Technology Association of America (ITAA) will host a conference titled "Securing Cyberspace: A Government Industry Partnership for the Future". At 8:30 AM, Rep. Tom Davis (R-VA), Chairman of the House Government Reform Committee, will speak. At 8:55 AM, Rep. Sherwood Boehlert (R-NY), Chairman of the House Science Committee, will speak. At 9:55 AM, Sen. Robert Bennett (R-UT), will speak. At 1:30 PM, Sen. Ron Wyden (D-OR) will speak. The ITAA states that the event is "By invitation only" and "Expected Attendees: Hill Members and Staff, Public Media, Industry Reps. & other Public/Private Sector partners". See, notice. Location: Room G-50, Dirksen Building.

9:00 AM. The Global Business Dialogue will hold a press conference on World Trade Organization (WTO) rules. For more information, contact Judge Morris at 202 463-5074. Location: First Amendment Lounge, National Press Club, 529 14th St. NW, 13th Floor.

9:30 AM. The Senate Judiciary Committee will hold an executive business meeting. The agenda includes S 274, the Class Action Fairness Act of 2003, and judicial nominations. See, notice. Location: Room 226, Dirksen Building.

10:00 AM. The House Judiciary Committee's Subcommittee on Courts, the Internet, and Intellectual Property will hold a hearing on HR 1417, the Copyright Royalty and Distribution Act. The hearing will be webcast. Location: Room 2141, Rayburn Building.

10:00 AM. The House Government Reform Committee will hold a business meeting, and then a hearing on internet pharmacies. The witnesses will be William Hubbard (Food and Drug Administration), Howard Beales (Bureau of Consumer Protection, Federal Trade Commission), James Thompson (Federation of State Medical Boards), Carmen Catizone (National Association of Boards of Pharmacy), and Richard Blumenthal (Connecticut Attorney General). Press contact: David Marin or Scott Kopple at 202 225-5074. Location: Room 2154, Rayburn Building.

11:00 AM. The Cato Institute will host a book forum on the book The Half-Life of Policy Rationales: How New Technology Affects Old Policy Issues [Amazon sales rank on March 23: 1,844,100]. The speakers will be Daniel Klein (co-editor), Jerry Ellig (Acting Director, Office of Policy Planning at the Federal Trade Commission), Donald Boudreaux (George Mason University), and Robert Atkinson (Progressive Policy Institute). Lunch will follow. See, notice and registration page. Location: Cato, 1000 Massachusetts Avenue, NW.

4:00 PM. The House Armed Services Committee's (HASC) Subcommittee on Terrorism, Unconventional Threats and Capabilities will hold a hearing on on Department of Defense (DOD) science and technology policy and programs for fiscal year 2004.  The scheduled witnesses include Anthony Tether, Director of the Defense Advanced Research Project Agency (DARPA). The Total Information Awareness (TIA) office is a part of the DARPA. The other scheduled witnesses are Ronald Sega, Director of Defense Research and Engineering at the DOD, Michael Andrews, Deputy Assistant Secretary of the Army for Research and Technology, and James Engle, Deputy Assistant Secretary of the Air Force for Science, Technology & Engineering. Location: Rayburn Building.

6:00 - 8:00 PM. The Federal Communications Bar Association (FCBA) will host a CLE seminar titled "What Every Practitioner Needs to Know about Telecommunications Access -- Policy and Practice Related to Persons with Disabilities". The speakers will be Bryan Tramont (FCC), Tom Chandler (FCC), Richard Ellis (Sprint), Mike Fingerhut (Sprint), Pam Gregory (FCC), Karen Strauss (Gallaudet University), Paul Schroeder (American Foundation for the Blind), and Claude Stout (Telecommunications for the Deaf). The prices to attend range from $50 to $80. RSVP to Wendy Parish at Location: Wiley Rein & Fielding, 1750 K St., NW, 10th Floor.

Friday, March 28

Deadline to submit comments to the Federal Communications Commission (FCC) in response to its Further Notice of Proposed Rulemaking (FNPRM) regarding a proposed set of rules pertaining to "plug and play" cable compatibility. On December 19, 2002, fourteen consumer electronics companies and seven cable operators announced that they have entered into a Memorandum of Understanding (MOU) regarding a national plug and play standard between digital television (DTV) products and digital cable systems. See, document [78 pages in PDF] consisting of the MOU, proposed rules to be promulgated by the FCC, and a letter to FCC Chairman Michael Powell and others. See also, FCC release [MS Word] of January 7 announcing the FNPRM, and notice in the Federal Register, January 16, 2003, Vol. 68, No. 11, at Pages 2278 - 2283. This is CS Docket 97-80, and PP Docket 00-67. For more information, contact Susan Mort in the FCC's Media Bureau at 202 418-7200 or

12:15 PM. The Federal Communications Bar Association's (FCBA) Cable Practice and Legislation Committees will host a brown bag lunch. The speakers will be Bill Baily (Majority Counsel, Senate Commerce Committee) and James Assey (Minority Counsel, Senate Commerce Committee). RSVP to Wendy Parish at Location: NCTA, 1724 Massachusetts Ave., NW, 2nd floor conference room.

Monday, March 31

The Federal Trade Commission's (FTC) amended final Telemarketing Sales Rule (TSR) takes effect. See, notice in the Federal Register containing the final amended TSR, and the Statement of Basis and Purpose. However, full compliance with the caller identification transmission provision is required by January 29, 2004. Also, the FTC will announce later the date by which full compliance with the ``do-not-call´´ registry provision, will be required. See, Federal Register, January 29, 2003, Vol. 68, No. 19, at Pages 4579-4679. See also, FTC release.

POSTPONED. Day one of a two day event hosted by the Association for Competitive Technology (ACT) titled "Member Fly-In". For more information, contact Catherine Parsons at 202 331-2130 x106.

Deadline to submit comments to the The National Telecommunications and Information Administration (NTIA) regarding the utility service cancellation notice exception to the Electronic Signatures in Global and National Commerce (E-SIGN) Act. The Act provides, at §101, for the acceptance of electronic signatures in interstate commerce, with certain enumerated exceptions. §103 of the Act provides that the provisions of section 101 shall not apply to "any notice of ... the cancellation or termination of utility services (including water, heat, and power)". (Parentheses in original.) The Act also requires the NTIA to review, evaluate and report to Congress on each of the exceptions. The E-SIGN Act is codified at 15 U.S.C. § 7001, et seq. The exceptions are codified at 15 U.S.C. § 7003. See, NTIA notice and notice in the Federal Register, January 28, 2003, Vol. 68, No. 18, at Pages 4179-4181.

Deadline to submit comments to the Federal Communications Commission (FCC) regarding its staff study relating to alternative methodologies for calculating contributions to the federal universal service support mechanisms. See, notice in the Federal Register, March 6, 2003, Vol. 68, No. 44, at Pages 10724 - 10725.

Tuesday, April 1

9:00 AM. The Senate Judiciary Committee will hold a hearing on several judicial nominations: Carolyn Kuhl (to be a Judge of the U.S. Court of Appeals for the 9th Circuit), Cecilia Altonaga (Southern District of Florida), and Patricia Minaldi (Western District of Louisiana). Location: Room 226, Dirksen Building.

10:00 AM. The Senate Appropriations Committee's Subcommittee on Commerce, Justice, State, and the Judiciary will hold a hearing on the FY 2004 budget for the Department of Justice. Location: Room 192, Dirksen Building.

POSTPONED. Day two of a two day event hosted by the Association for Competitive Technology (ACT) titled "Member Fly-In". For more information, contact Catherine Parsons at 202 331-2130 x106.

Deadline to file Form 499A [34 pages in PDF], the Annual Telecommunications Reporting Worksheet, with the Universal Service Administrative Company's (USAC).

Wednesday, April 2

1:00 - 3:00 PM. The President's National Security Telecommunications Advisory Committee (NSTAC) will hold a meeting via conference call. The meeting is closed to the public. See, notice in the Federal Register, March 21, 2003, Vol. 68, No. 55, at Page 13967.

11:30 AM - 2:00 PM. Anne Mulcahy, Ch/CEO of Xerox, will speak at the U.S. Chamber of Commerce program titled "From Survival to Success: Leading in Turbulent Times". See, notice. Location: U.S. Chamber of Commerce, 1615 H Street, NW.

The Supreme Court will hear oral argument in Dastar Corporation v. Twentieth Century Fox Film, a case involving whether Section 43(a) of the Lanham Act, codified at 15 U.S.C. § 1125(a), requires an independent showing that consumers will likely be confused by a defendant's false designation of origin or false or misleading description or representation of fact. Dastar made a video that copied extensively from a TV program (that had entered the public domain) without crediting the source. Twentieth Century Fox prevailed in the courts below on a Lanham Act claim.

Thursday, April 3

11:00 AM- 12:00 NOON. Charles McQueary, Under Secretary for Science and Technology, at the Department of Homeland Security (DHS), will speak at a program titled "Homeland Security Business Forum: Science and Technology Under DHS". See, notice and registration pages. The price to attend is $35 for members and $100 for non members. Location: U.S. Chamber of Commerce, 1615 H Street, NW.

12:00 NOON. John Muleta, Chief of the Federal Communications Commission's (FCC) Wireless Telecommunications Bureau will speak at the Land Mobile Communications Council's annual meeting. Location: Loews L'Enfant Plaza Hotel.

3:30 PM. Pamela Samuelson (Professor, UC Berkeley) will give a lecture titled "Freedom to Tinker, Freedom to Learn: A Constitutional Interest in Reverse Engineering". For more information, contact Julie Cohen at Location: Georgetown University Law Center, Faculty Lounge, 600 New Jersey Ave., NW.

Day one of a two day conference hosted by the University of Maryland's Center for Intellectual Property titled "Copyright in the Digital Age: Challenges Facing the Academy". The agenda includes sessions on the TEACH Act, peer to peer file copying, and the DMCA. Location: Greenbelt Marriott, Maryland.

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