4/15. The Department of Homeland Security (DHS) published a notice in the Federal Register regarding proposed rules for receiving and protecting critical infrastructure information (CII). The DHS is required by the Homeland Security Act to conduct this notice of proposed rulemaking (NPRM) to implement the provisions of the Act creating an exemption to the Freedom of Information Act (FOIA) for certain information about critical infrastructures, including cyber security, that is voluntarily shared with the government.

The relevant statutory provisions are at §§ 211-215 of HR 5005 (107th Congress). These sections are collectively named that "Critical Infrastructure Information Act of 2002". President Bush signed the Homeland Security Act on November 25, 2002. It then became Public Law No. 107-296. The FOIA is codified at 5 U.S.C. § 552.

The CII exemption to the FOIA was enacted to incent companies to share information with the government that they would not otherwise share because of fears that their competitors or critics could obtain it under the FOIA. The government needs information from the private sector to be able to combat cyber terrorism and other threats to critical infrastructures. Technology companies and groups strongly supported creating the exemption.

During consideration of the Homeland Security Act in 2002, some other groups opposed creating the exemption, arguing that they would use the FOIA to obtain records regarding critical infrastructures, in furtherance of their watchdog functions. Also, some Democrats in Congress, responding to these arguments, opposed including the exemption in the bill.

The proposed rules contained in this notice provide further guidance on what information may be protected as CII, and how persons and entities providing CII may mark and submit CII in a manner that will allow the DHS to treat it as protected CII.

The notice contains proposed definitions of many key terms. The notice also contains proposed procedures for administering the CII program, authority to receive CII, and safeguarding of protected CII.

The deadline to submit comments is June 16, 2003. See, Federal Register, April 15, 2003, Vol. 68, No. 72, at Pages 18523 - 18529.

4/16. SBC withdrew its Section 271 application to provide in region interLATA services in the state of Michigan.

FCC Chairman Michael Powell stated in a release [PDF] that "The FCC cannot approve such applications by the Bell Companies unless they satisfy the requirements of section 271."

He continued that "In my view, SBC's application generally met the requirements of section 271. Ultimately, the outstanding issues that prevented approval were very narrow, but nonetheless important. Perhaps the most troubling of these issues relates to billing. Despite extensive examination of the record supporting these applications, questions remain regarding whether SBC is currently providing wholesale billing functions for competitive LECs in a manner that meets the requirements of our existing precedent. Indeed much of the information related to this issue, including the results of a data reconciliation, was introduced very late in our 90 day process. If the Commission were to take this evidence into account, it would have required an unusually broad waiver of our ‘freeze frame’ rule."

4/15. The Federal Communications Commission (FCC) issued an order [241 pages in PDF] approving Qwest's Section 271 applications to provide in region interLATA services in the states of New Mexico, South Dakota, and Oregon.

Perhaps the most notable part of this order is its Track A analysis. As in its April 14 order [PDF] regarding Nevada, and its order regarding Louisiana, this order states that wireless carrier's service can demonstrate competition under Track A.

The Order states that for the FCC to approve a § 271 application, "the BOC must first demonstrate that it satisfies the requirements of either section 271(c)(1)(A) (Track A) or section 271(c)(1)(B) (Track B). To meet the requirements of Track A, a BOC must have interconnection agreements with one or more competing providers of ``telephone exchange service ... to residential and business subscribers.´´ In addition, the Act states that ``such telephone exchange service may be offered ... either exclusively over [the competitor's] own telephone exchange service facilities or predominantly over [the competitor's] own telephone exchange service facilities in combination with the resale of the telecommunications services of another carrier.´´ The Commission has concluded that section 271(c)(1)(A) is satisfied if one or more competing providers collectively serve residential and business subscribers, and that unbundled network elements are a competing provider's ``own telephone exchange service facilities´´ for purposes of section 271(c)(1)(A). Furthermore, the Commission has held that a BOC must show that at least one ``competing provider´´ constitutes ``an actual commercial alternative to the BOC,´´ which a BOC can do by demonstrating that the provider serves ``more than a de minimis number´´ of subscribers." (Brackets and ... in original. Footnotes omitted.)

The order further states that "broadband PCS satisfies the statutory definition of ``telephone exchange service´´ for purposes of section 271(c)(1)(A), and that broadband PCS may form the basis of a Track A finding."

Commissioner Michael Copps concurred, but wrote a separate statement [PDF] in which he argued "I am troubled by the majority's conclusion that Qwest meets the statute's Track A requirement on the basis of wireless competition in New Mexico. This situation is analogous to the one faced by the Commission just yesterday in the Nevada section 271 Order. Based on limited survey evidence, the majority again finds that a particular wireless carrier's service is a commercial alternative to wireline service. It strikes me as premature to decide on the present record that wireline and wireless services are more than complementary."

Commissioner Jonathan Adelstein wrote a separate statement [PDF] in which he argued that "Track A requires that one or more competing providers collectively serve business and residential subscribers using their own telephone exchange service facilities. I am somewhat concerned about relying on the existence of broadband PCS competition in demonstrating the presence of competition under Track A"

See also, separate statement [PDF] of Commissioner Kevin Martin, FCC release [PDF] and Qwest release. This is WC Docket No. 03-11.

4/14. Federal Communications Commission (FCC) Commissioner Kathleen Abernathy gave a speech [4 pages in PDF] at the Museum of TV and Radio in New York City in which she discussed the FCC's media ownership proceeding. She said, "I am not sure where all the pieces will land at the end of the day."

She said that "Historically, the government has stepped in with regulatory oversight because broadcast media rely on scarce spectrum resources to deliver content to the public. FCC regulation has therefore concentrated on maximizing the value of the spectrum by promoting a competitive media marketplace that offers a diverse array of voices serving the needs of the local communities. At its core, FCC rules are designed to further the goals of competition, diversity and localism."

She reviewed the changes in the media market, the statutory mandate of the Telecom Act of 1996 that the FCC review its broadcast ownership rules every two years and determine if they are necessary to further the public interest, and the history of the Court of Appeals' decisions vacating FCC media ownership rules.

She continued that "One of my goals in the broadcast ownership proceeding is to ensure that if we eliminate or modify any of our current rules, we don't lose vibrant voices and diverse sources from our civic discourse. Another goal is to anticipate what effect our rules will have on the broadcast industry as they position themselves to compete with cable, DBS and other new competitors."

She added that "I want free over-the-air services to remain competitive and viable; I want the economics to justify quality programming alternatives for those that rely only on broadcast to receive news, information and entertainment. And finally, I don’t want the competitive environment to drive the migration of quality programming to cable, and deprive the public of free access to sports, movies and other entertainment. If we hold on too tightly to our current regulatory structure in an effort to preserve broadcasting, I am afraid that we just might ensure its demise."

She also addressed media consolidation. She said that "some increased consolidation will provide benefits to the public by making broadcasters more effective competitors ..." However, she also stated that "I also believe that too much consolidation can be harmful. Companies may very well push for scale and scope economies that threaten competition, diversity, and localism. That is why the FCC must remain vigilant."

4/15. The Circuit Court of the state of Florida gave preliminary approval to a settlement of class action lawsuits pending in the state courts of Florida involving allegations that Microsoft violated Florida's antitrust and unfair competition laws. Microsoft will provide $202 Million in vouchers for the purchase of computer equipment, any operating system, and any software. See, Order Granting Preliminary Approval of Class Action Settlement [3 page PDF scan].

Under the terms of the settlement, Microsoft will provide vouchers that may be used to buy any manufacturer's desktop, laptop or tablet computers running any operating system, or any software used with those computer products. The vouchers will be provided to consumers and businesses that purchased licenses for Microsoft operating systems, Office suite, spreadsheet or word processing software between November 16, 1995, and December 31, 2002, for use in Florida. In addition, one half of the unclaimed vouchers will go to Florida public schools. The settlement caps the voucher distribution at $202 Million.

The order is preliminary. Class members may still challenge the settlement on the grounds of "fairness, reasonableness or adequacy". The Court also scheduled a hearing for November 24, 2003 on whether the settlement should be finally approved.

The proceeding is titled "In Re Florida Microsoft Antitrust Litigation" and numbered 99 27340 CA 11. It is pending in the Circuit Court of the 11th Judicial Circuit, in and for Miami-Dade County, Florida. See also, Microsoft release.

Also on April 15, Microsoft announced that it had "revenue of $7.84 billion for the quarter ended March 31, 2003, an 8 percent increase over revenue of $7.25 billion for the same period in the prior year. Operating income for the third quarter grew 13 percent to $3.72 billion, compared to operating income of $3.30 billion reported in the prior year. Net income for the quarter was $2.79 billion, compared to $2.74 billion reported in the previous year. Diluted earnings per share for the March 2003 quarter were $0.26." See, Microsoft release.

4/10. Sen. John McCain (R-AZ) and others introduced S 865, the "Commercial Spectrum Enhancement Act". This is the Senate's version of HR 1320, also titled the "Commercial Spectrum Enhancement Act".

This bill would facilitate the reallocation of spectrum from federal users, such as the Department of Defense (DOD), to commercial users, such as Third Generation (3G) wireless service providers. 3G is intended to provide broadband internet access for portable devices. The bill would create a "Spectrum Relocation Fund", funded out of auction proceeds, to pay for relocation costs of federal entities whose spectrum is reallocated. The bill would apply to, but not be limited to, the 1710-1755 MHz band.

Sen. McCain (at right) explained that "The bill would establish a separate fund on the books of the United States Treasury called the Spectrum Relocation Fund. When spectrum occupied by a Federal agency is auctioned, the proceeds from the auction would be deposited into the fund. Federal agencies would be able to withdraw from the fund the estimated expenses associated with the relocation, with additional expenses being approved by the Office of Management and Budget, with notice provided to Congress and the General Accounting Office, GAO, as necessary." See, Congressional Record, April 10, 2003, at S5191.

He continued that "Currently, when spectrum assigned to a Government agency is auctioned, the law requires the agency to negotiate with the winning bidder to determine the cost of purchasing or returning new equipment necessary for the agency to transfer out of the spectrum band. These negotiations would be time-consuming and difficult for both parties. This bill would eliminate the need for lengthy negotiations between these parties. Thus it would accelerate the pace of introduction of new services using the spectrum."

The bill's other original sponsors are Sen. Byron Dorgan (D-ND), Sen. Sam Brownback (R-KS), and Sen. John Ensign (R-NV). The bill was referred to the Senate Commerce Committee. Sen. McCain is the Chairman.

The House Commerce Committee's Subcommittee on Telecommunications and the Internet amended and approved HR 1320 on April 9, 2003. See, amendment in the nature of a substitute [PDF] approved by unanimous voice vote.

See also, stories titled "House Subcommittee Approves Spectrum Relocation Fund Bill", TLJ Daily E-Mail Alert No. 641, April 10, 2003; "House Subcommittee Holds Hearing On Commercial Spectrum Enhancement Act", TLJ Daily E-Mail Alert No. 631, March 26, 2003; and "Rep. Upton Introduces Spectrum Relocation Bill", TLJ Daily E-Mail Alert No. 629, March 24, 2003.

The House and Senate will be in recess from April 14 through April 25 for the Spring District Work Period. The House and Senate will next meet on Monday, April 28.

The Supreme Court is in recess until Monday, April 21.

12:00 NOON - 2:00 PM. The DC Bar Association's Computer and Telecommunications Law Section will host a brown bag lunch titled "The Internet, E-mail and Workplace Misconduct: Preventing and Litigating Harassment, Discrimination and Discipline Claims". The speakers will be Richard Vernon (Lerch Early & Brewer), and Diane Seltzer (Cashdan Kane & Seltzer). The price to attend ranges from $15 to $30. Location: DC Bar Conference Center, 1250 H Street NW, B-1 level.

Passover.

10:00 AM - 3:00 PM. The Federal Communications Commission's (FCC) Technological Advisory Council will hold a meeting. The topic of this meeting will be broadband access technologies. See, notice in the Federal Register, March 28, 2003, Vol. 68, No. 60, at Page 15188. For more information, contact Jeffery Goldthorp at jgoldtho@fcc.gov or 202 418-1096. Location: FCC, 445 12th St. SW, Room TW-C305 (Commission Meeting Room).

12:15 PM. The Federal Communications Bar Association's (FCBA) Cable Practice Committee will host a brown bag lunch. The speaker will be Sarah Whitesell, Legal Advisor to FCC Commissioner Jonathan Adelstein. RSVP to Wendy Parish at wendy@fcba.org. Location: NCTA, 1724 Massachusetts Ave., NW, 2nd Floor Conference Room.

12:15 PM. The Federal Communications Bar Association's (FCBA) Young Lawyers Committee will host a brown bag lunch. The speakers will be Lauren Van Wazer (Special Counsel to the Chief of FCC's OET), Paula Ford (Regulatory Counsel for Microsoft), Ashim Roy (ComBasis). For more information, contact Greg Haledjian at 202 777-3972 or Jennifer Cetta at 202 887-1597. RSVP to btoliver@mofocom. Location: Morrison & Foerster, 2000 Pennsylvania Ave., NW, Suite 5500.

Extended deadline to submit comments to the Federal Communications Commission (FCC) in response to its Notice of Inquiry (NOI) [MS Word] regarding "Additional Spectrum for Unlicensed Devices Below 900 MHz and in the 3 GHz Band". Unlicensed devices would include, among other things, 802.11. See, notice in Federal Register, January 21, 2003, Vol. 68, No. 13, at Pages 2730-2733. See also, story titled "FCC Announces Notice of Inquiry Re More Spectrum for Unlicensed Use" in TLJ Daily E-Mail Alert No. 566, December 12, 2002. For more information, contact Hugh Van Tuyl in the FCC's Office of Engineering & Technology at hvantuyl@fcc.gov or 202 418-7506. This is OET Docket No. 02-380. See, notice of extension [PDF].

Deadline to submit reply 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.

The Supreme Court will return from recess.

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in Olvie Sisk v. FCC, No. 01-1514. Judges Ginsburg, Edwards and Henderson will preside. Location: 333 Constitution Ave., NW.

Day one of a two day conference hosted by the American Enterprise Institute (AEI) titled "The New Antitrust Paradox: Policy Proliferation in the Global Economy". The speakers will include William Kovacic (Federal Trade Commission) and Judge Richard Posner (U.S. Court of Appeals for the 7th Circuit). See, notice. Location: AEI, 12th Floor, 1150 17th Street, NW.

Day two of a two day conference hosted by the American Enterprise Institute (AEI) titled "The New Antitrust Paradox: Policy Proliferation in the Global Economy". The speakers will include William Kovacic (Federal Trade Commission) and Judge Richard Posner (U.S. Court of Appeals for the 7th Circuit). See, notice. Location: AEI, 12th Floor, 1150 17th Street, NW.

8:45 AM - 6:30 PM. The U.S. Chamber of Commerce will host a conference titled "Critical Infrastructure and Homeland Security: Public Policy Implications for Business". See, notice, agenda, and online registration pages. The prices to attend range from $500 to $650. Location: 1615 H Street, NW.

9:00 AM. Day one of a two day meeting of the Department of Commerce's (DOC) Bureau of Industry and Standards' (BIS) Information Systems Technical Advisory Committee (ISTAC). The meeting will be partly open, and partly closed. The agenda includes discussion of ultrawideband technologies. See, notice in the April 3, 2003, Vol. 68, No. 64, at Page 16262. Location: DOC, Hoover Building, Room 3884, 14th Street between Pennsylvania and Constitution Avenues, NW.

9:30 AM. The Federal Communications Commission (FCC) will hold a meeting. Location: FCC, 445 12th Street, SW, Room TW-C05 (Commission Meeting Room).

10:00 AM - 2:00 PM. The the National Industrial Security Program Policy Advisory Committee (NISPPAC) of the Information Security Oversight Office (ISOO) will hold a meeting. The ISOO is responsible for policy oversight of the Government wide security classification system. The NISPPAC was created on January 8, 1993 by Section 103 of Executive Order 12829. For more information, contact ISOO Director William Leonard at 202 219-5250. See, notice in the Federal Register, March 19, 2003, Vol. 68, No. 53, at Pages 13334 - 13335. Location: Room 105, National Archives and Records Administration, 700 Pennsylvania Ave., NW.

12:15 PM. The Federal Communications Bar Association's (FCBA) Common Carrier Practice Committee will host a brown bag lunch. The speakers will be the chief and deputies of the FCC's Telecommunications Access Policy Division. For more information, contact Matt Brill at mbrill@fcc.gov. Location: Qwest, 1020 19th St., NW, Suite 700.

Deadline to submit comments to the Federal Trade Commission (FTC) regarding the role of technology in helping consumers and businesses protect the privacy of personal information, including the steps taken to keep their information secure. The FTC stated that "Especially useful are any studies, surveys, research, and empirical data". The FTC will hold a workshop titled "The Consumer Experience" on May 14, and another workshop titled "The Business Experience" on June 4. See, FTC release.

Deadline to submit applications to the National Telecommunications and Information Administration (NTIA) for grants under the Technology Opportunities Program (TOP). See, NTIA release and notice in the Federal Register, March 17, 2003, Vol. 68, No. 51, at Pages 12678 - 12683.

9:00 AM. Day two of a two day meeting of the Department of Commerce's (DOC) Bureau of Industry and Standards' (BIS) Information Systems Technical Advisory Committee (ISTAC). The meeting will be partly open, and partly closed. The agenda includes discussion of ultrawideband technologies. See, notice in the April 3, 2003, Vol. 68, No. 64, at Page 16262. Location: DOC, Hoover Building, Room 3884, 14th Street between Pennsylvania and Constitution Avenues, NW.

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in OCC Acquis Inc v. FCC, No. 01-1143. Judges Ginsburg, Henderson and Randolph will preside. Location: 333 Constitution Ave. NW.

9:30 AM. The U.S. International Trade Commission (USITC) will hold a hearing in its economic effects investigation titled "U.S. Singapore Free Trade Agreement: Potential Economywide and Selected Sectoral Effects". This is Inv. No. TA-2104-6. Location: Main Hearing Room, USITC Building, 500 E Street SW.

12:00 NOON - 1:45 PM. The Legislation Committee of the DC Bar Association's Intellectual Property Law Section will host a luncheon program titled "Copyright Legislative Agenda". The speakers will be Robert Kasunic (Copyright Office), Arthur Sackler (International Intellectual Property Institute), Gigi Sohn (Public Knowledge), and Kate Colgan (National Writers Union). The price to attend ranges from $25 to $35. For more information, call 202 626-3463. Location: D.C. Bar Conference Center, 1250 H Street NW, B-1 Level.

12:00 NOON - 1:30 PM. DC Bar Association's Computer and Telecommunications Law and Law Office Management Sections will host a brown bag lunch titled "The E-Mauled: Managing Clients, Confidences, and Communications in the Electronic Age". The speaker will be Jeffrey Berger. The price to attend ranges from $15 to $20. Location: DC Bar Conference Center, 1250 H Street NW, B-1 Level.

8:00 AM - 3:30 PM. The National Science Foundation's (NSF) Advisory Committee for Computer and Information Science and Engineering will hold a meeting. For more information, contact Gwen Blount at 703 292-8900. See, notice in the Federal Register, March 24, 2003, Vol. 68, No. 56, at Page 14264. Location: NSF, 4201 Wilson Blvd., Room 1235, Arlington, VA.

9:00 AM - 5:00 PM. The Federal Communications Commission's (FCC) Consumer Advisory Committee (CAC) will hold a meeting. See, notice in the Federal Register, April 4, 2003, Vol. 68, No. 65, at Pages 16513 - 16515. Location: FCC, Room TW-C305, 445 12th Street, SW.

4/10. Rep. Ed Markey (D-MA), and other Representatives, introduced HR 1709, a bill pertaining to the privacy of individually identifiable health information. See also, "Dear Colleague" letter [PDF scan] from Rep. Markey, Rep. John Dingell (D-MI), and Rep. Henry Waxman (D-CA). The bill was referred to the House Commerce Committee, Ways and Means Committee, and Education and the Workforce Committee.

4/11. Rep. Phil Crane (R-IL), and other Representatives, introduced HR 1769, a bill to amend the Internal Revenue Code to comply with rulings of the World Trade Organization (WTO) that the Foreign Sales Corporation (FSC) tax regime, and its replacement, the Extraterritorial Income (ETI) tax regime, constitute illegal export subsidies. The bill was referred to the House Ways and Means Committee. Rep. Crane is the Chairman of its Trade Subcommittee.

4/15. Sen. Peter Fitzgerald (R-IL) announced that he will not seek re-election in 2004.

4/15. The Securities and Exchange Commission (SEC) named William McDonough Chairman of the Public Company Accounting Oversight Board (PCAOB). McDonough has been President of the Federal Reserve Bank of New York since 1993. The five member PCAOB was created by the Sarbanes Oxley act. See, SEC release, statement by McDonough, and statement by SEC Chairman William Donaldson.

4/15. The Treasury Department and the Internal Revenue Service (IRS) announced that "more than 2.4 million Americans (as of April 9, 2003) have prepared and filed their taxes on-line for free using the Free File website". (Parentheses in original.) See, release [PDF].

4/15. AOL announced that it filed five complaints in the U.S. District Court (EDVa) against entities that sent unsolicited commercial e-mail to its subscribers. AOL alleges violations of the Virginia Computer Crimes Act, the Federal Computer Fraud and Abuse Act, and the Washington Commercial Electronic Mail Act. See, AOL release.