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June 12, 2003, 9:00 AM ET, Alert No. 679.
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FTC Seeks Increased Authority to Regulate Spam

6/11. The Federal Trade Commission (FTC) proposed to the Congress that it amend various substantive and procedural statutes to facilitate its ability to address unsolicited commercial e-mail. FTC Chairman Timothy Muris submitted lengthy prepared testimony on behalf of the FTC at Congressional hearings on FTC reauthorization on June 11 in which he addressed spam.

Substantive Law Proposals. Muris proposed amending and expanding the existing Telemarketing and Consumer Fraud and Abuse Prevention Act (TCFAPA) to specifically address spam. He wrote that "Substantive legislative changes also could aid in the FTC’s law enforcement efforts against spam. Although Section 5 of the FTC Act provides a firm footing for spam prosecutions, additional law enforcement tools could make more explicit the boundaries of legal and illegal conduct, and they could enhance the sanctions that the agency can impose on violators."

He continued that the TCFAPA "provides a model for addressing unsolicited commercial e-mail. Amendments to the TCFAPA would authorize the FTC to adopt rules addressing deceptive and abusive practices with respect to the sending of unsolicited commercial e-mail." He elaborated on several proposals for amendments to the TCFAPA.

"First, amendment of the statute would give the FTC general discretionary authority via rulemaking to address deceptive practices relating to spam", wrote Muris. "Second, amendment of the statute would give discretionary authority via rulemaking to address abusive practices relating to spam. Specific abusive practices might include: sending any recipient an unsolicited commercial e-mail message after such recipient has requested not to receive such commercial e-mail messages; failing to provide a reasonable means to “opt out” of receiving future e-mail messages; and sending unsolicited commercial e-mail to an address obtained through harvesting or a dictionary attack.

"Third, amendment of the TCFAPA would ensure that the Rule embodies the same standard of liability that is embodied in Section 5 of the FTC Act, without a general requirement to show intent or scienter. Imposition of intent or scienter requirements would unnecessarily complicate enforcement, and also would actually constrict the scope of the FTC’s existing authority under Section 5 to attack spam. Fourth, the amended statute would provide that the Rule would be enforceable, like all FTC Rules, through FTC actions in federal district court, and it further would provide that violators would be subject to preliminary and permanent injunctions and could be ordered to pay redress to consumers."

Procedural Law Proposals. Muris wrote in his prepared testimony that the FTC also seeks several amendments to procedural statutes. For example, he wrote that "we are requesting that the FTC Act be amended to provide that FTC attorneys may apply for a court order temporarily delaying notice to an investigative target of a CID issued to a third party in specified circumstances, when the Right to Financial Privacy Act (``RFPA´´) or the Electronic Communications Privacy Act (``ECPA´´) would require such notice."

Muris added that "The FTC's experience is that when fraud targets are given notice of FTC investigations they often destroy documents or secrete assets. Currently RFPA and ECPA provide a mechanism for delaying notice, but the FTC's ability to investigate would be improved by tailoring the bases for a court-ordered delay more specifically to the types of difficulties the FTC encounters, such as transfers of assets offshore."

Next, Muris requested that "the ECPA be clarified to allow the FTC to obtain complaints received by an ISP regarding a subscriber. Frequently, spam recipients complain first to their ISPs, and access to the information in those complaints would help the agency to determine the nature and scope of the spammer's potential law violations, as well as lead the agency to potential witnesses."

He also requested that "the scope of the ECPA be clarified so that a hacker or a spammer who has hijacked a bona fide customer's email account is deemed a mere unauthorized user of the account, not a ``customer´´ entitled to the protections afforded by the statute. Because of the lack of a statutory definition for the term “customer,” the current statutory language may cover hackers or spammers. Such a reading of the ECPA would permit the FTC to obtain only limited information about a hacker or spammer targeted in an investigation. Clarification to eliminate such a reading would be very helpful."

Finally, he requested that "the ECPA be amended to include the term ``discovery subpoena´´ in the language of 18 U.S.C. § 2703. This change is particularly important because a district court has ruled that the FTC staff cannot obtain information under the ECPA from ISPs during the discovery phase of a case, which limits the agency’s ability to investigate spammers."

Criminal Law Proposals. Muris wrote in his prepared testimony merely that "the possible criminalization of false header and routing information should be explored. There is some debate over whether the wire fraud statute covers fraud in the sending of e-mail communications. The FTC staff is discussing this issue with criminal authorities to determine whether a specific statute that criminalized this conduct would clear up any statutory confusion or encourage spam prosecutions. At this time, the FTC has no recommendations on whether changes in the criminal code are necessary or appropriate".

Pending Bills. There are already several legislative proposals pending in the Congress. For example, On May 23, 2003, Rep. Richard Burr (R-NC) and others introduced HR 2214, the "Reduction in Distribution of Spam Act of 2003". This bill would require that commercial e-mail messages contain the identity of the sender and an opt out mechanism. It would provide ISPs, states, and the FTC with enforcement authority, but only in federal court. The bill creates no private right of action, and prohibits class actions. The bill would also criminalize sending commercial e-mail with a false identity of the sender, certain sezually oriented messages, and certain automated e-mail address harvesting practices. The bill also contains a limited preemption clause. See, story titled "Another Spam Bill Introduced in House" in TLJ Daily E-Mail Alert No. 671, June 2, 2003.

On May 1, 2003, Rep. Zoe Lofgren (D-CA) and others introduced HR 1933, the "Restrict and Eliminate the Delivery of Unsolicited Commercial Electronic Mail or Spam Act of 2003", aka the "REDUCE Spam Act".

On April 10, 2003, Sen. Conrad Burns (R-MT) and Sen. Ron Wyden (D-OR) introduced S 877, the "Controlling the Assault of Non-Solicited Pormography and Marketing Act of 2003", or "CAN-SPAM Act". The bill would create civil bans on sending unsolicited commercial e-mail (UCE) with false header information, or with intentionally false or misleading content. It would also require UCE senders to include a return e-mail address, and ban sending further UCE to persons who have objected to receiving more UCE. It would also ban the practice of sending UCE to lists of addresses that have been harvested from websites by automated means. The bill would give enforcement authority to the FTC, states, and internet access providers, but not individuals. The bill would preempt state UCE laws, with exceptions. See, story titled "Senators Burns and Wyden Re-Introduce Can Spam Bill" in TLJ Daily E-Mail Alert No. 643, April 14, 2003.

Congressional Reaction. Sen. Conrad Burns (R-MT), Chairman of the Senate Commerce Committee's Communications Subcommittee, stated in a prepared statement that "I am troubled by the direction the Commission has taken in its testimony today."

Sen. Conrad BurnsSen. Burns (at right) continued that "Rather than a broad grant of rulemaking over ``abusive and deceptive´´ practices as exists in the FTC’s telemarketing authority, I believe that the best way to proceed in this area is with specific requirements set forth by the Congress. Senator Wyden and I have been working on antispamming legislation for several years now and in fact the CAN-SPAM bill is scheduled for the June 19 markup in the Committee. We have been working to identify appropriate guidelines for legitimate businesses and strong enforcement tools to combat bad actors and I am confident that the right balance has been struck in the CAN-SPAM bill. While focused rulemaking may provide assistance by following specific provisions set forth by the Congress, I am extremely wary of wide grants of vague additional authority."

Rep. Bill Tauzin (R-LA), the Chairman of the House Commerce Committee, stated in his prepared statement that "I was surprised to find the FTC has a legislative proposal for spam included in its reauthorization package, although I'll note that many of the issues raised by the FTC are included in Mr. Burr's anti-spam bill, H.R. 2214. That bill provides the FTC with more streamlined APA rulemaking authority to give the Commission more flexibility to respond to changes in the marketplace. In addition, H.R. 2214 gives the FTC and the Department of Justice all of the enforcement powers they currently enjoy under the FTC Act -- the same powers the Commission is requesting here today. Since H.R. 2214 does not supercede the FTC's authority to enforce against spam under its unfair and deceptive trade practices authority, it should be a nice supplement to the Commission's existing authority. In fact, H.R. 2214 may go even further than the FTC proposal as it allows consumers the opportunity to opt out of all commercial email, not just unsolicited commercial email."

Rep. Cliff Stearns (R-FL), Chairman of the House Commerce Committee's Subcommittee on Commerce, Trade and Consumer Protection, wrote in a prepared statement that "What I find curious about the proposal and an issue that I would like to further explore with the Commissioners is the qualifying language that surrounds the proposal, making the proposal seem tentative. Specifically, the Commission's testimony prefaces the proposal by stating that even though ``Section 5 of the FTC Act provides a firm footing for spam prosecutions, additional law enforcement tools could make more explicit the boundaries of legal and illegal conduct….´´ More significantly, the statement concludes by stating that ``[a]dmittedly, [the Commission] recognize[s] that these legal steps will not solve the growing spam problem. Nor is it clear what impact these steps will have on some of the other problems associated with spam (e.g., volume and security).´´"

FTC Seeks End to Communications Common Carrier Exemption

6/11. The Federal Trade Commission (FTC) proposed to the Congress that it amend the Federal Trade Commission Act (FTCA) to end the exemption for common carriers subject to the Communications Act from the FTCA's prohibitions on unfair or deceptive acts or practices and unfair methods of competition.

The FTC has general statutory authority over unfair and deceptive trade practices. Many regulatory agencies that have authority over industry sectors have statutory authority over trade practices of companies in these specific sectors. And hence, various statutory grants of authority to the FTC contain exemptions for certain industry sectors.

FTC Chairman Timothy Muris submitted lengthy prepared testimony on behalf of the FTC at Congressional hearings on FTC reauthorization on June 11 in which he stated that "This exemption dates from a period when telecommunications services were provided by government authorized, highly regulated monopolies. The exemption is now outdated. In the current world, firms are expected to compete in providing telecommunications services."

Timothy MurisMuris (at right) continued that the Congress and FCC "have replaced much of the economic regulatory apparatus formerly applicable to the industry with competition. Moreover, technological advances have blurred traditional boundaries between telecommunications, entertainment, and high technology. Telecommunications firms have expanded into numerous non-common-carrier activities. For these reasons, FTC jurisdiction over telecommunications firms' activities has become increasingly important."

He added that "The FTC Act exemption has proven to be a barrier to effective consumer protection, both in common carriage and in other telecommunications businesses. The exemption also has prevented the FTC from applying its legal, economic, and industry expertise regarding competition to mergers and other possible anticompetitive practices, not only involving common carriage but also in other high-tech fields involving telecommunications. The FTC believes that Congress should eliminate the special exemption to reflect the fact that competition and deregulation have replaced comprehensive economic regulation."

"The common carrier exemption sometimes has stymied FTC efforts to halt fraudulent or deceptive practices by telecommunications firms. While common carriage has been outside the FTC's authority, the agency believes that the FTC Act applies to non-common-carrier activities of telecommunications firms, even if the firms also provide common carrier services. Continuing disputes over the breadth of the FTC Act's common carrier exemption hamper the FTC's oversight of the non-common-carrier activities. These disputes have arisen even when the FCC may not have jurisdiction over the non-common-carrier activity", wrote Muris. "It may have additional serious consequences to new areas of industry convergence, e.g., high technology and entertainment, where the FTC's inability to protect consumers can undermine consumer confidence."

Muris also addressed antitrust authority. He wrote that "The common carrier exemption also significantly restricts the FTC's ability to engage in effective antitrust enforcement in broad sectors of the economy.  The mix of common carrier and non-common-carrier activities within particular telecommunications companies frequently precludes FTC antitrust enforcement for much of the telecommunications industry. Further, because of the expansion of telecommunications firms into other high-tech industries and the growing convergence of telecommunications and other technologies, the common carrier exemption increasingly limits FTC involvement in a number of industries outside telecommunications."

Rep. Bill Tauzin (R-LA), the Chairman of the House Commerce Committee, does not agree. He stated in his prepared statement that "Another aspect of the Commission's proposal is the removal of the jurisdictional exemption over telecommunications common carriers. Currently, common carriers are subject to rigorous regulation by the Federal Communications Commission as well as by the states. Moreover, to the extent that common carriers are engaged in non-common carrier activities, courts have found that the FTC has the jurisdiction necessary to enforce its regulations. If there is a need to codify this judicial interpretation, that is a course of action we can discuss."

Rep. Billy TauzinRep. Tauzin (at right) added that "I do not, however, believe that a wholesale removal of the exemption is necessary. If there are instances where common carrier activities are so intertwined with non-common carrier activities, I encourage the FTC and the FCC to work together and coordinate a joint enforcement response. However, dual regulation is not the answer."

Similarly, Sen. Conrad Burns (R-MT), Chairman of the Senate Commerce Committee's Communications Subcommittee, stated in a prepared statement that "The request put forward by the FTC for common carrier jurisdiction strikes me as misguided and over-reaching. I agree with the well-reasoned, commonsense position of FCC Consumer Affairs Bureau Chief Snowden, who in a recent letter to the FTC indicated that the FCC has far greater resources available to deal with common carrier issues and also a greater scope for enforcement. For example, if the FCC takes action against a common carrier it may revoke licenses, unlike the FTC."

Sen. Burns added that "I simply do not believe that having two federal agencies performing essentially the same core functions is effective. Rather, I am supportive of the idea of a Memorandum of Understanding between the Commissions that would clarify the role of each agency to prevent the inefficiencies and duplication of work which inevitably arise from overlapping jurisdictions."

In contrast, Rep. John Dingell (D-MI), the ranking Democrat on the Committee, stated in his prepared statement that "In furtherance of its consumer protection mandate, the Commission is now requesting new authorities from Congress. In particular, despite some initial misgivings, I urge this Committee to carefully examine the FTC’s request for jurisdiction over telecommunications common carriers. The FTC has a long and established record of enforcing consumer protection laws, and the agency has made strong arguments with regards to how the present exemption hinders its ability to protect consumers against unscrupulous industry behavior."

Rep. John DingellRep. Dingell (at right) added that "I think it is fair to say that the present FCC has become so enamored with some of the industries it is assigned to regulate, that it has become unable to act as the aggressive consumer advocate that is so needed at this time. For this reason, I will carefully consider the FTC’s request for jurisdiction over common carriers, and I ask my colleagues to do the same."

Rep. Cliff Stearns (R-FL), the Chairman of the House Commerce Committee's Subcommittee on Commerce, Trade and Consumer Protection, wrote in a prepared statement that "As the subtitle of this hearing is ``[p]ositioning the Commission for the Twenty-First Century,´´ I would attentively be listening to the Commission's arguments as the exemption was written into the statute some 70 years ago."

3rd Circuit Revises Opinion in Omnipoint v. Easttown Following Rehearing

6/5. The U.S. Court of Appeals (3rdCir) issued its revised opinion [30 pages in PDF] in Omnipoint v. Easttown, a cell tower siting case. The original opinion was issued on February 12, 2003, and reported at 319 F.3d 627. Following consideration of a petition for rehearing filed by Easttown, the same three judge panel vacated its original opinion, and issued the present opinion. Judge Rosenn, who wrote the original opinion, dissented from the revised opinion, arguing that it will impede the development of new digital wireless technologies.

Background. Omnipoint is a wireless telecommunications provider that provides service in Easttown Township, Pennsylvania. It sought a variance from the Zoning Hearing Board of Easttown to locate a tower in a residential district. It argued that there is a gap in wireless telecommunications. Easttown denied the request. This protracted litigation followed. It is essentially about what constitutes a gap.

Statute. The relevant statute is 47 U.S.C. § 332(c)(7)(B)(i) does not address gaps. It merely states that state and local governments cannot discriminate among wireless providers, or prohibit personal wireless services.

Section 332 pertains to "Mobile Services". Subsection (c) pertains to "Regulatory treatment of mobile services". In turn, 332(c)(7) pertains to "Preservation of local zoning authority".

Subsection 332(c)(7)(B)(i) provides the following limitation: "The regulation of the placement, construction, and modification of personal wireless service facilities by any State or local government or instrumentality thereof -- (I) shall not unreasonably discriminate among providers of functionally equivalent services; and (II) shall not prohibit or have the effect of prohibiting the provision of personal wireless services."

District Court. Omnipoint filed a complaint in U.S. District Court (EDPenn) against Easttown alleging violation of Section 332(c)(7)(B)(i) and Pennsylvania law. This is the second time this case has been to the Court of Appeals. See also, Omnipoint v. Easttown, 248 F.3d 101 (3d Cir. 2001), which remanded the case to the District Court. On remand, the District Court rejected Omnipoint's claims on the basis that it failed to establish a significant gap or unreasonable discrimination under the Communications Act, or unconstitutional exclusion under Pennsylvania law.

Appeals Court. In the February 12, 2003 opinion, the Appeals Court vacated the District Court's holding that there is no significant gap, but affirmed the rest of the District Court's holding. It remanded with instructions to recalculate the call failure rate in the area at issue to determine whether there is a significant gap in telecommunications service in Easttown.

Easttown filed a petition for rehearing. Following a rehearing, the Appeals Court vacated its February 12 opinion, and affirmed the decision of the District Court (that there is no gap).

The Appeals Court held that the relevant consideration is not whether the service provider seeking the variance has a gap in its service. Rather, the District Court must consider whether there are other service providers, and what territory their service covers.

Dissent. Judge Rosenn, who wrote the February 12 opinion, dissented from the June 5 opinion. He wrote that "The majority approach today threatens Congress' goal of promoting the rapid acceleration of private sector deployment of advanced telecommunication and information technologies to all Americans. The existence of older, less functional cellular networks should not be permitted to impede the development of new, digital technologies like PCS and undermine competition in the telecommunications industry. The majority opinion will effectively impede the development of new digital technologies that have a more limited range but superior capabilities."

House Passes Commercial Spectrum Enhancement Act

6/11. The House passed HR 1320, the "Commercial Spectrum Enhancement Act", by a vote of 408-10. See, Roll Call No. 260.

This bill, which is sponsored by Rep. Fred Upton (R-MI), would change the process for reallocating spectrum from federal users to commercial users, such as for Third Generation (3G) wireless services. For example, the Department of Defense (DOD) currently uses spectrum in the 1710-1755 MHz band. The National Telecommunications and Information Administration (NTIA) and Federal Communications Commission (FCC) have identified this band for reallocation for 3G services. The DOD will incur expenses to relocate to other spectrum bands. The bill would create a Spectrum Relocation Fund, funded by auction proceeds, to compensate federal agencies for the cost of relocating. The bill would replace the current role of the House and Senate Appropriations Committees.

The House Commerce Committee's Telecommunications and Internet Subcommittee held a hearing on March 25. See, TLJ story titled "House Subcommittee Holds Hearing On Commercial Spectrum Enhancement Act", March 25, 2003.

The Subcommittee marked up the bill on April 9, 2003. See, story titled "House Subcommittee Approves Spectrum Relocation Fund Bill", TLJ Daily E-Mail Alert No. 641, April 10, 2003.

The full Committee approved the bill on April 30. See, story titled "House Commerce Committee Passes Spectrum Relocation Bill" in TLJ Daily E-Mail Alert No. 653, May 1, 2003.

The Senate version of the bill is S 865, which was introduced on April 10, 2003, by Sen. John McCain (R-AZ) and others. Neither the Senate, nor the Senate Commerce Committee, has yet passed the bill.

House Rules Committee Adopts Rule for Class Action Fairness Act

6/11. The House Rules Committee adopted a structured rule for the consideration of HR 1115, the "Class Action Fairness Act". The full House may take up the bill on Thursday, June 12.

This bill would, among other things, amend 28 U.S.C. § 1332, regarding diversity of citizenship. It would provide federal jurisdiction in certain class actions with a minimum total of aggregated claims where any member of a class of plaintiffs is a citizen of a state different from any defendant.

The bill would also require increased judicial scrutiny of class action settlements that provide for coupon and other non-cash settlement payments to plaintiffs. It would also prohibit geographic discrimination in awards to plaintiffs.

Rep. Bob Goodlatte (R-VA), Rep. Rick Boucher (D-VA) and others introduced this bill on March 6, 2003. It is a re-introduction of HR 2341 (107th), which passed in the House by a vote of 233-190. See, story titled "Reps. Goodlatte and Boucher Re-Introduce Class Action Fairness Act" in TLJ Daily E-Mail Alert No. 619, March 10, 2003.

The House Judiciary Committee held a hearing on May 15, and then amended and passed this bill on May 21, 2003, by a vote of 20-14. It was a largely party line vote, with Republicans supporting the bill, and Democrats opposing it. However, Rep. Boucher, a cosponsor of the bill, voted for it. See, story titled "House Committee Holds Hearing on Class Action Reform Bill" in TLJ Daily E-Mail Alert No. 664, May 19, 2003.

The rule governing consideration by the full House makes in order four amendments. First, there is an amendment [3 pages in PDF] offered by Rep. James Sensenbrenner (R-WI), Rep. Boucher, Rep. Goodlatte, Rep. Jim Moran (D-VA), Rep. Cal Dooley (D-CA), Rep. Charles Stenholm (D-TX) and Rep. Lee Terry (R-NE). This is bipartisan amendment supported by the sponsors of the bill. It would broaden the category of class action that would remain in state court. First, this amendment would raise the amount in controversy required for federal court jurisdiction from $2 Million to $5 Million. Second, it would allow federal courts to return some intrastate class actions in which the law of that state governs to the courts of that state.

Second, there is an amendment [2 pages in PDF] offered by Rep. Sheila Lee (D-TX) that would prevent domestic corporations from not being subject to the jurisdiction of federal courts, and liability in class action lawsuits filed in federal courts, through mergers or repatriations with foreign companies.

Third, there is an amendment [PDF] offered by Rep. Zoe Lofgren (D-CA) and Rep. Linda Sanchez (D-CA) that would amend section 4(a) of the bill, which would amend 28 U.S.C. § 1332, to preserve the ability of local prosecutors to enforce state antitrust and consumer protection laws in state courts.

Fourth, there is an amendment [14 pages in PDF] offered by Rep. Max Sandlin (D-TX) and Rep. John Conyers (D-MI). This is an amendment in the nature of a substitute.

Total Information Awareness Oversight Board to Meet

6/11. The Department of Defense (DOD) published a notice in the Federal Register stating that its Technology and Privacy Advisory Committee (TAPAC) will hold a public meeting on June 19 from 9:00 AM to 5:00 PM.

On February 7, 2003, the DOD announced in a release that it "will establish two boards to provide oversight of the Total Information Awareness Project, the program designed to develop tools to track terrorists. The two boards, an internal oversight board and an outside advisory committee, will work with the Defense Advanced Research Projects Agency (DARPA), as it continues its research. These boards will help ensure that TIA develops and disseminates its products to track terrorists in a manner consistent with U.S. constitutional law, U.S. statutory law, and American values related to privacy."

On March 10, the DOD published a notice in the Federal Register stating that it is establishing the TAPAC. See, Federal Register, March 10, 2003, Vol. 68, No. 46, at Page 11384.

The June 11 notice states that "The purpose of the meeting is for presentations of interest and discussion concerning the legal and policy considerations implicated by the application of advanced information technologies to counter-terrorism and counter-intelligence missions."

The meeting will be held at the Hyatt Arlington, 1325 Wilson Blvd., Arlington, VA. For more information, contact Lisa Davis, TAPAC Executive Driector, at 703 695-0903. See, Federal Register, June 11, 2003, Vol. 68, No. 112, at Page 34909.

Thursday, June 12

The House will meet at 10:00 AM for legislative business. It may consider HR 1115, the "Class Action Fairness Act of 2003", subject to a rule. See, Republican Whip Notice.

9:30 AM. The Senate Judiciary Committee will hold an executive business meeting. Press contact: Margarita Tapia at 202 224-5225. The agenda includes consideration of several non tech related bills, and consideration of several nominees, including David Campbell to be a Judge of the U.S. District Court for the District of Arizona, and Thomas Hardiman to be a Judge of the U.S. District Court for the Western District of Pennsylvania. See, notice. Location: Room 226, Dirksen Building.

12:15 PM. The Federal Communications Bar Association's (FCBA) Online Communications Practice Committee will host a brown bag lunch. The speaker will be Vinton Cerf. RSVP to Christine Peyton at Location: Wiley Rein & Fielding, 1750 K St., NW, 10th Floor, Room 10E.

2:00 PM. The Department of Commerce (DOC) and the Department of Education (DOE) will hold a media teleconference to announce the formation of an "Interagency Working Group on Advanced Technologies for Education and Training". In addition, the Business and Higher Education Forum (BHEF) will release a report titled "Building a Nation of Learners: The Need for Changes in Teaching and Learning to Meet Global Challenges". The participants will include John Bailey, DOE Director of Technology. See, notice. For more information, contact Connie Correll of the DOC's Technology Administration at 202 482-1065 or To obtain the conference call phone number, contact 202 939-9365 or

Friday, June 13

10:00 AM. The Senate Banking Committee will hold a hearing on several pending nominations, including that of Greg Mankiw to be a member of the President's Council of Economic Advisors. Location: Room 538, Dirksen Building.

12:00 NOON. The Cato Institute will host a panel discussion titled "Canning Spam: Can We Shift the Cost of Unsolicited E-mail Back to Spammers?". The speakers will be Orson Swindle (Commissioner of the Federal Trade Commission), Wayne Crews (Cato), and Dave Baker (Earthlink). See, notice and online registration page. Lunch will be served. Location: Room B-369, Rayburn Building.

2:00 - 3:00 PM. The Information Technology Association of America (ITAA) will host a webcast program titled "The Do's and Don'ts of Workplace Email and Web Monitoring". The presenters will be Cathy Bissoon, (Reed Smith) and Susan Getgood (Surf Control). See, notice and registration information.

CANCELLED. The Federal Communications Commission's (FCC) Network Reliability and Interoperability Council (NRIC) will hold a meeting. The NRIC will next meet on September 15, 2003 from 1:00 - 4:00 PM. See, notice of cancellation [PDF].

Monday, June 16

The Supreme Court will return from a one week recess.

Deadline to submit comments to the Federal Communications Commission (FCC) regarding News Corp.' proposed acquisition of an interest in DirecTV. See, FCC notice [7 pages in PDF], and story titled "FCC Sets Deadlines for Comments on News Corp.'s DirecTV Deal" in TLJ Daily E-Mail Alert No. 664, May 19, 2003. This is MB Docket No. 03-124. For more information, contact Marcia Glauberman at or 202 418-7046 or Linda Senecal at or 202 418-7044.

Deadline to submit comments to the Bureau of Industry and Security (aka Bureau of Export Administration) regarding its proposal titled "Best Practices for Exporters/Re-exporters and Trade Facilitation/Freight Forwarding Companies Regarding the Transit, Transshipment, and Reexport of Dual-Use Items".For more information, contact Rick Cupitt at or 202 482-1459. See, notice in Federal Register, May 16, 2003, Vol. 68, No. 95, at Pages 26567 - 26569.

Tuesday, June 17

RESCHEDULED FOR JUNE 24. 12:15 PM. The Federal Communications Bar Association's (FCBA) Cable Practice Committee will host a brown bag lunch. The speaker will be Kyle Dixon, Deputy Bureau Chief of the Federal Communications Commission's (FCC) Media Bureau, and Special Counsel to the Chairman for Broadband. RSVP to Wendy Parish at Location: National Cable & Telecommunications Association (NCTA), 1724 Massachusetts Ave., NW, 2nd Floor Conference Room.

12:15 PM. The Federal Communications Bar Association's (FCBA) Mass Media Practice Committee will host a brown bag lunch on "current issues". RSVP to moconnell Location: NAB, 1771 N Street, NW.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its notice of proposed rulemaking (NPRM) regarding its slamming rules. Slamming is the unauthorized changing of subscriber's selection of a provider of telephone exchange service or telephone toll service. The FCC adopted this NPRM on February 28, 2003, and released it on March 17. See, Third Order on Reconsideration and Second Further Notice of Proposed Rulemaking [63 pages in PDF]. This is FCC Docket No. 94-129. See also, FCC release [PDF]. For more information, contact Kelli Farmer at 202 418-7057.

Wednesday, June 18

2:30 PM. The Senate Judiciary Committee's Antitrust, Competition Policy and Consumer Rights Subcommittee will hold a hearing on the proposed NewsCorp DirecTV transaction, focusing on global distribution. Location: Room 226, Dirksen Building.

Scheduled completion of voting by the Media Security and Reliability Council's (MSRC) Advisory Committe on the MSRC's Best Practices Recommendations [5 pages in MS Word] to ensure effective delivery of emergency information to the public during terrorist attacks, natural disasters, and other emergencies. The MSRC provides recommendations to the Federal Communications Commission (FCC) and industry. See, story titled "Media Security and Reliability Council Considers Recommendations" in TLJ Daily E-Mail Alert No. 669, May 29, 2003.

The Federal Trade Commission (FTC) will host a workshop titled "Information Flows: The Costs and Benefits to Consumers and Businesses of the Collection and Use of Consumer Information". It will address the issue of the costs and benefits to consumers and businesses of consumer information collection and use. It will explore how consumer information is collected and used by businesses to facilitate commercial transactions, as well as how it can be used to fight fraud. See, agenda. The FTC states that "preregistration will be required for the press". Location: FTC Conference Center, 601 New Jersey Ave., NW.

EPIC Files FOIA Complaint Regarding Computer Assisted Passenger Screening System

6/11. The Electronic Privacy Information Center (EPIC) filed a complaint [7 pages in PDF] in U.S. District Court (DC) against the Department of Homeland Security (DHS), the Transportation Security Administration (TSA), and the Department of Defense (DOD) alleging violation of the Freedom of Information Act (FOIA), codified at 5 U.S.C. § 552, in connection with its failure to release agency records concerning airline passenger screening procedures.

The complaint states that "TSA has been engaged in the development of what it describes as ``the next generation of the Computer Assisted Passenger Prescreening System (CAPPS II).´´" The complaint further states that the EPIC requested agency records that address "Any existing legal, statutory and/or regulatory frameworks concerning governmental access to and use of transactional and other records about individuals. This request includes, but is not limited to, any assessments of the legal authority (or lack thereof) for information collection activities planned or proposed for the CAPPS II project". The EPIC also requested agency records that address "Potential privacy and/or civil liberties implications of the activities planned or proposed for the CAPPS II project." Finally, the complaint states that the defendant agencies have failed to complete their processing of the EPIC's FOIA request within the time period allowed by the statute.

The EPIC wants the Court to order the agencies to release the requested records.

David SobelDavid Sobel, EPIC General Counsel, stated in a release that "Millions of air passengers may soon have vast amounts of their personal data scrutinized by CAPPS II ... It is time for the government to be more forthcoming about this system and its likely impact on privacy rights."

He added that "CAPPS II is the government data-mining initiative that will likely affect the public in the near future, so the details need to disclosed and debated".

The case has been assigned to Judge Colleen Kotelly. This is D.C. No. 03-CV-1255.

People and Appointments

6/11. Bruce McDonald was named Deputy Assistant Attorney General for Regulatory Matters at the Department of Justice's (DOJ) Antitrust Division. He is a partner in the trial division of the Houston, Texas, office of the law firm of Baker Botts. He focuses on antitrust matters. The Baker Botts web site states that his clients have included a number of technology and communications companies, including Alcatel, BMC Software, Dell, Electronic Data Systems, GTE, Lotus Development, Raytheon, Silicon Graphics, Tele-Communications, Inc., and Texas Instruments. See, DOJ release.

6/11. The National Cable & Telecommunications Association (NCTA) announced the election of officers. Glenn Britt (Ch/CEO of Time Warner Cable) was elected Chairman of the Board of Directors, Brian Roberts (P/CEO of Comcast Corporation) was elected Vice Chairman, Tom Rutledge (Cablevision Systems Corporation) was elected Secretary, and Nickolas Davatzes (A&E Television Networks) was elected Treasurer. See, NCTA release.

6/10. MCI WorldCom announced the resignations of Michael Salsbury, EVP and General Counsel, and Susan Mayer, SVP and Treasurer. See, release.

More News

6/3. The U.S. Court of Appeals (DCCir) issued its opinion [13 pages in PDF] in Thomas v. National Science Foundation. This is an ancient case, filed in the District Court in 1997, involving the National Science Foundation's and Network Solutions, Inc.'s system for the collection and use of fees for registering internet domain names. In 1998, the Congress passed legislation terminating the system in dispute. However, this case lingers, as a dispute over the award of attorneys fees. Before the Congress passed its bill, William Thomas, and other plaintiffs, had obtained a preliminary injunction that the fees collected constituted an unconstitutional tax. This injunction was mooted by the passage of legislation, and no final judgment was rendered. The plaintiffs then sought attorneys fees as the prevailing party, which the District Court awarded to them. The Appeals Court reversed, holding that they were not prevailing parties, because of the intervening legislation.

6/11. The House Commerce Committee's Subcommittee on Telecommunications and the Internet held a hearing titled "The Spectrum Needs of Our Nation's First Responders". See, prepared testimony of Rep. Jane Harman (D-CA) and prepared testimony of Rep. Curt Weldon (R-PA). See also, prepared testimony of witnesses: Ed Thomas (FCC Office of Engineering & Technology), James Tamlyn (Charlevoix Cheboygan Emmet Central Dispatch Authority, Michigan), Norman Jacknis (Westchester County), Gene Adamczyk (Michigan State Police), Gregory Brown (Motorola), Jim Haynie (American Radio Relay League), Vincent Stile (Association of Public Safety Communications Officials International), Timothy Donahue (Nextel), and Stephen Carrico (Wisconsin Public Service Corporation).

6/11. The Copyright Office (CO) published a notice in the Federal Register that provides notification of "an agreement which sets rates and terms for the reproduction and performance of sound recordings made by a noncommercial webcaster under the section 112 and 114 statutory licenses. Noncommercial webcasters who meet the eligibility requirements may choose to operate under the statutory licenses in accordance with the rates and terms set forth in the agreement published herein rather than the rates and terms adopted by the Librarian of Congress in an earlier proceeding." See, Federal Register, June 11, 2003, Vol. 68, No. 112, at Pages 35008 - 35012.

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