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June 27, 2003, 9:00 AM ET, Alert No. 689.
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Senate Commerce Committee Approves FCC Reauthorization Bill

6/26. The Senate Commerce Committee amended and approved S 1264, the Federal Communications Commission Reauthorization Act of 2003. The bill would reauthorize the Federal Communications Commission (FCC) through 2008. However, the bill also contains many significant substantive provisions pertaining to media ownership rules, e-rate fraud, FCC enforcement, lobbying by former FCC officials, and the effect of bankruptcy on spectrum auctions.

Sen. John McCainExtension of Reauthorization Through 2008. The Committee approved by voice vote a perfecting amendment offered by Sen. John McCain (R-AZ) (at right) and Sen. Ernest Hollings (D-SC) that, among other things, extends the reauthorization of appropriations for the FCC through 2008. The bill as introduced reauthorized the FCC through 2007.

Video Description Rules. This perfecting amendment also requires the FCC to initiate a proceeding to determine whether it is economically and technically feasible to include crawlers in the video description rules. It provides that the FCC "shall initiate a proceeding within 180 days after the enactment of this Act to consider whether it is economically feasible and consistent with the public interest to include ``accessible information´´ in its video description rules". The amendment defines the term "accessible information" as "written information displayed on television screens during regular programming, hazardous warnings and other emergency information, local and national news bulletins, and any other information the Commission deems appropriate."

Private Causes of Action Against FCC and the Conboy Case. This amendment also struck from the bill as introduced a provision regarding private causes of actions against common carriers. The bill, as introduced, would have provided a private right of action, and recovery of damages, for violation of FCC rules and orders by common carriers, and thus address the 2001 holding of Second Circuit in Conboy v. AT&T. The Committee did not debate or discuss this item at the mark up meeting.

47 U.S.C. § 206 currently provides for recovery of damages for violation of the statute, but not for violation of rules or orders. It provides that "In case any common carrier shall do, or cause or permit to be done, any act, matter, or thing in this chapter prohibited or declared to be unlawful, or shall omit to do any act, matter, or thing in this chapter required to be done, such common carrier shall be liable to the person or persons injured thereby for the full amount of damages sustained in consequence of any such violation of the provisions of this chapter, together with a reasonable counsel or attorney's fee, to be fixed by the court in every case of recovery, which attorney's fee shall be taxed and collected as part of the costs in the case." The bill, as introduced, would have changed this to the following: ""A common carrier that does, or causes or permits to be done, any act, matter, or thing prohibited or declared to be unlawful in this Act, or in any rule, regulation, or order issued by the Commission, or that fails to do any act, matter, or thing required to be done by this Act, or by any rule, regulation, or order of the Commission is liable to any person injured by such act or failure for the full amount of damages sustained in consequence of such act or failure, together with a reasonable attorney's fee. The amount of the attorney's fee shall be -- (1) fixed by the court in every case of recovery in a judicial proceeding; or (2) fixed by the Commission in every case of recovery in a Commission proceeding.'' But, the Committee removed this provision from the bill.

On February 26, 2001, the U.S. Court of Appeals (2ndCir) issued its opinion in Conboy v. AT&T, a case regarding the Telecommunications Act of 1996 and electronic privacy. The Appeals Court affirmed the District Court's decision dismissing the plaintiffs' complaint.

The plaintiffs, Edward and Eileen Conboy, filed a class action complaint in U.S. District Court (SDNY) alleging that AT&T improperly disseminated personal information about them to AT&T Universal Card Services (UCS) to help UCS collect credit card debt, in violation of § 222 of the Telecommunications Act of 1996, FCC regulations thereunder, the Fair Debt Collection Practices Act, and New York State law.

Plaintiffs were neither the debtors, nor guarantors of the debt; their daughter is law was the debtor. Nevertheless, AT&T gave UCS their unlisted phone number. UCS made between 30 and 50 harassing phone calls to them, some at unusual hours. The District Court dismissed the entire complaint for failure to state a claim upon which relief can be granted. The Appeals Court affirmed.

The Appeals Court wrote that "The text of the Telecommunications Act contains no language that explicitly provides a private right of action for damages for violations of the two FCC regulation at issue here. Section 401(b) of the Communications Act permits private parties to enforce FCC ``orders,´´ but it does not provide authority for the recovery of damages. Moreover, no private right of action for money damages can be implied." (The Appeals Court also held in Conboy that the Plaintiffs could not sue for violation of the statute, because they "failed to allege recoverable damages". That is, they could not recover for mere harassment.)

Revocation of Broadcast Licenses for Obscene Content. The Committee next approved an amendment offered by Sen. Hollings that requires the FCC to conduct a license revocation proceeding in certain situations involving the "broadcast of obscene or indecent material". Sen. Hollings complained that the FCC "punted" in a recent obscenity matter, and that "I am trying to wake up the FCC".

Broadcast Political Ads. The Committee next approved an amendment offered by Sen. McCain regarding political advertisements on broadcast media. It would require the FCC to conduct a rule making proceeding to address, among other things, "sponsorship identification". Sen. Ted Stevens (R-AK) described this as "transparency in political advertising". Sen. George Allen (R-VA) raised the "question of privacy" in "political speech or advocacy". Nevertheless, the amendment passed by a voice vote.

Digital TV Translators. The Committee next approved by voice vote an amendment offered by Sen. Stevens that amends 47 U.S.C. § 336(f)(4) to provide that "Within 60 days after the date of enactment, the Federal Communications Commission shall initiate a rulemaking implementing this section to authorize the operation of digital television translators and digital on-channel repeaters."

Broadcast Localism. The Committee next debated, but did not approve, an amendment offered by Sen. Byron Dorgan (D-ND) regarding "localism, diversity and competition". Sen. Dorgan withdrew his amendment.

It would have provided that the FCC "shall initiate a proceeding to establish a minimum amount of locally originated programming that each broadcast licensee shall be required to broadcast to satisfy the public interest obligation of a licensee." However, the amendment would also have allowed the FCC to waive the programming requirement "for good cause based on hardship or other unforeseen circumstances."

Sen. Dorgan stated that consolidation has resulted in less local programming content in broadcast media. Sen. Stevens, who urged approval of the amendment, commented that the underlying purpose of "must carry is that there is localism".

Frequency of FCC Reviews of Media Ownership Rules. The Committee next approved an amendment offered by Sen. John Sununu (R-NH) regarding the frequency of the FCC's reviews of its media ownership rules. The statute currently requires that a review be conducted at least every two years. The Committee recently approved a bill that would reduce the frequency to every five years. This amendment sets the frequency at four years.

Citizen Standing to Challenge Broadcast License Renewals. The Committee next debated, but did not approve, an amendment offered by Sen. Maria Cantwell (D-WA) regarding challenges to broadcast license renewals. She complained that about the current automatic renewal of licenses. Sen. McCain stated that "I don't think average citizens are heard enough in this process."

This amendment would have created the possibility of "endless harassment", said Sen. Trent Lott (R-MS), "by just anybody who walks in off the street." He also noted the financial cost to small broadcasters of fighting these challenges.

Sen. Stevens argued that this amendment "will lead to a multiplicity of people claiming to represent the public interest". He argued that all citizens should have the right to comment, but not to challenge. He said that this is normally done by the state, or some elected official.

Sen. Cantwell's amendment would have amended 47 U.S.C. § 309(d)(1) to provide that "a party of interest shall include any listener or viewer of the specific broadcast station to be licensed or renewed who asserts an interest in vindicating the general public interest, and otherwise makes the specific allegations and showings required by this paragraph".

Sen. Cantwell withdrew her amendment, but added that she will work on revised language to offer when the full Senate takes up the bill.

Public Interest Programming and License Renewals. The Committee next debated, but did not approve, an amendment offered by Sen. Cantwell regarding the broadcast license renewal process. It would have added a new subsection to 47 U.S.C. § 309(k) that provides that "A broadcast license renewal applicant shall provide to the Commission, and make publicly available in such manner and for such time as the Commission shall prescribe, a disclosure of any and all specific programming identified as programming in fulfillment of the obligations of the applicant to provide programming in the public interest, convenience, and necessity."

Sen. McCain, who opposed the amendment, stated that he wants to hold a hearing on this issue in July. Sen. Cantwell withdrew the amendment.

UHF Discount. Finally, the Committee also approved, by a vote of 13-10, an amendment offered by Sen. Frank Lautenberg (D-NJ), regarding the UHF discount. The amendment phases out the attribution discount permitted for UHF television stations.

The bill as approved by the Committee also retains many key provisions that were included in the bill as introduced.

E-Rate Program Fraud. The bill requires to FCC to write annual reports on fraud and abuse in the schools and libraries universal service subsidies program, also known as the e-rate. The bill states that the FCC "shall conduct an investigation into the implementation, utilization, and Commission oversight of activities authorized by section 254(h) of the Communications Act of 1934 (47 U.S.C. 254(h)) ... for each of fiscal years 2004 through 2007, with a particular emphasis on determining the specific fraud or abuse of Federal funds that has occurred in connection with such activities or operations."

Sen. Ernest HollingsEnforcement. The bill increases certain statutory caps on penalties ten fold, and extends statute of limitations on certain actions. Sen. Hollings (at right) stated in a prepared statement that "this bill makes great strides in increasing maximum forfeiture penalties by ten times the current high water mark. It is my hope that the FCC will take the hint and use these tools that we are providing in this bill to benefit consumers."

Lobbying Restrictions. The bill contains two provisions related to lobbying. First, it limits payment of travel costs of FCC officials and staff. Second, it expands the list of FCC positions subject to the one year ban on lobbying.

The one year ban on lobbying is codified at 18 U.S.C. § 207. It provides, at § 207(c)(1) that "... any person who is an officer or employee ... of the executive branch of the United States (including an independent agency), who is referred to in paragraph (2), and who, within 1 year after the termination of his or her service or employment as such officer or employee, knowingly makes, with the intent to influence, any communication to or appearance before any officer or employee of the department or agency in which such person served within 1 year before such termination, on behalf of any other person (except the United States), in connection with any matter on which such person seeks official action by any officer or employee of such department or agency, shall be punished ..."

Paragraph (2), in turn, provides guidance as to which persons the restriction of paragraph (1) applies. The bill adds an enumerated list of FCC positions subject to the one year ban. It lists the chiefs of the bureaus (MB, WCB, WTB, IB, OET, EB, CGAB). It also includes the chief of OSP, the Inspector General, the General Counsel, and the Director of OLA.

Spectrum Licenses, Bankruptcy and Security Interests. The bill also addresses the situation presented in the NextWave case. Specifically, the bill would provide that "The bankruptcy laws shall not be applied (A) to avoid, discharge, stay, or set-off any pre-petition debt obligation to the United States arising from an auction under this Act, (B) to stay the payment obligations of the debtor to the United States if such payments were a condition of the grant or retention of a license under this Act, or (C) to prevent the automatic cancellation of licenses for failure to comply with any monetary or non-monetary condition for holding any license ..."

The bill would also provide that "A debtor in a proceeding under the bankruptcy laws shall have no right or interest in any portion of the proceeds from an auction of any license reclaimed by the Commission for failure to pay a monetary obligation of the debtor to the United States in connection with the grant or retention of a license under this Act."

Finally, the bill would provide that the FCC may "(A) establish rules and procedures governing security interests in licenses, or the proceeds of the sale of licenses, issued by the Commission; and (B) establish an office within the Office of Secretary for the recording and perfection of such security interests without regard to otherwise applicable State law."

These amendments would only apply prospectively. It would only apply "to cases and proceedings commenced on or after the date of enactment of this Act."

See, January 27, 2003 opinion [34 pages in PDF] of the Supreme Court, and TLJ story titled "Supreme Court Rules Against FCC in NextWave Case", January 27, 2003.

Senate Commerce Committee Approves Commercial Spectrum Enhancement Act

6/26. The Senate Commerce Committee amended and approved HR 1320, the Commercial Spectrum Enhancement Act. The House passed its version of the bill on June 11 by a vote of 408-10. See, Roll Call No. 260. The Senate version of the bill now contains the NorthPoint amendment. The House bill does not.

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 Senate Commerce Committee approved, by a vote of 13 to 8, an amendment offered by Sen. John Sununu (R-NH) and Sen. Maria Cantwell (D-WA), that would exempt from auction spectrum for fixed terrestrial services in the 12.2-12.7 GHz.

This amendment would benefit NorthPoint. It describes its technology as follows: "Northpoint is a patented, digital, wireless, cell based, terrestrial transmission technology that reuses radio frequency spectrum previously reserved for satellite systems. Northpoint can reuse this spectrum by keeping the terrestrial signal below the level to cause interference to the satellite signal, but above the level required to provide reliable terrestrial service. This is accomplished through several means, one of which is directional transmission. The Northpoint system consists of directional broadcast antennas located on towers, poles, buildings or mountains. The transmissions are oriented in a limited azimuth range, based upon the look angles to the satellite systems with which the Northpoint system will share frequencies, allowing harmonious simultaneous co-channel transmissions between satellite and terrestrial services." See, NorthPoint paper [9 pages in PDF]. See also, story titled "FCC Acts on Northpoint Application" in TLJ Daily E-Mail Alert No. 417, April 24, 2003.

Sen. Maria CantwellSen. Cantwell (at right) argued that this amendment is about promoting broadband deployment in rural areas. She continued that exceptions have been allowed in the past, such as for first responders, and that an exception should be made here.

Sen. Burns spoke in support of the amendment. He said that "this is a very narrow piece of spectrum". He also commented that when spectrum is auctioned, sometimes the auction price is so high that companies have no money left to finance buildout.

Sen. Burns also commented that perhaps, rather than auctioning spectrum, the federal government should treat it like federal lands. He suggested that perhaps service providers should "graze on spectrum" the way ranchers "graze on public lands".

Sen. Ted Stevens (R-AK) stated that this amendment "would allow small rural areas to get wireless service", and that without this amendment, some communities in the state of Alaska will remain without wireless services. He said that "This bill is not going to leave the Senate unamended."

Sen. John McCain (R-AZ), the Chairman of the Committee, stated that he opposes this amendment, the administration opposes it, and the wireless industry opposes it. He said that "this would give away valuable spectrum".

Specifically, the amendment provides that "Section 647 of the ORBIT Act (47 U.S.C. 765f) is amended (1) by striking ``global satellite communications services.´´ and inserting ``global satellite communications services or for the provision of fixed terrestrial services in the 12.2-12.7 GHz band.´´; and (2) by adding at the end the following: ``No license for fixed terrestrial services in the 12.2-12.7 GHz band may be used for the provision of mobile terrestrial telephony services.´´."

The Committee also discussed an amendment written by Sen. Ted Stevens (R-AK). However, he did not offer it.

It would require the National Telecommunications and Information Administration (NTIA), "at the time of providing an initial estimate of relocation costs" to the FCC pursuant to paragraph (4)(A) of the bill, to submit to the House and Senate Appropriations and Commerce Committees for their "approval", a "copy of such estimate and the timelines for relocation". It further states that "Unless disapproved within 30 days, the estimate shall be approved. If disapproved, the NTIA may resubmit a revised initial estimate."

See also, TLJ story titled "House Subcommittee Holds Hearing On Commercial Spectrum Enhancement Act", March 25, 2003; story titled "House Subcommittee Approves Spectrum Relocation Fund Bill" in TLJ Daily E-Mail Alert No. 641, April 10, 2003; story titled "House Commerce Committee Passes Spectrum Relocation Bill" in TLJ Daily E-Mail Alert No. 653, May 1, 2003; and story titled "House Passes Commercial Spectrum Enhancement Act" in TLJ Daily E-Mail Alert No. 679, June 12, 2003.

Appeals Court Vacates Java Must Carry Injunction in Sun v. Microsoft

6/26. The U.S. Court of Appeals (4thCir) issued its opinion [28 pages in PDF] in Sun Microsystems v. Microsoft, vacating the portion of the District Court's preliminary injunction that requires Microsoft to incorporate in and distribute with every copy of its Windows PC operating system and every copy of its web browser Sun's Java software. This was also known as the "must carry injunction". See, December 23, 2002 opinion [42 pages in PDF] of the District Court.

However, the Appeals Court upheld the portion of the District Court's preliminary injunction prohibiting Microsoft from distributing any software developments of Java software, other than products licensed to Microsoft by Sun in a 2001 settlement agreement arising out of prior litigation over Microsoft's alleged misuse of Java source code.

District Court. Sun Microsystems filed a complaint in the U.S. District Court (NDCal) against Microsoft alleging violations of antitrust law, and copyright infringement. This is just one of several such antitrust actions filed in the wake of the governments' success. The Judicial Panel on Multidistrict Litigation transferred the action to the U.S. District Court (Maryland) for resolution of pretrial issues.

This action is distinct from the federal government's antitrust action against Microsoft, which was brought in the U.S. District Court (DC). It is also distinct from Sun's earlier Java related suit against Microsoft in the U.S. District Court (NDCal). However, this case builds on these previous cases.

In the present case Sun asked the District Court to require Microsoft to carry Java. It seeks an injunction requiring Microsoft "to set up Sun's most current Java runtime environment to be installed by default on any product containing .NET, including Windows XP (the most recent iteration of the Windows operating system) and Internet Explorer. Under the proposed injunction, the Java runtime environment is to be provided by Sun to Microsoft at no cost, and it must pass the relevant Java compatibility tests available from the Java Community Process." (Parentheses in original.)

The District Court (Maryland), in granting this relief, wrote that "The theory underlying Sun’s requested injunction is that Microsoft, having unlawfully fragmented the Java platform and having destroyed Sun's channels of distribution for that platform, is now taking advantage of its past antitrust violations to leverage its monopoly in the Intel-compatible PC market into the market for general purpose, Internet enabled distributed computing platforms."

The Court added that "The ``must-carry´´ remedy Sun proposes is designed to prevent Microsoft from obtaining future advantage from its past wrongs and to correct the distortion in the marketplace that its violations of the antitrust laws have caused."

In reaching this conclusion, the Court conceded that Sun's Java, not Microsoft's .NET, is dominant today. But, the Court reasoned, as part of the analysis of likelihood of irreparable harm, that the market might reach an irreversible "tipping point".

See also, story titled "District Court Rules Microsoft Must Carry Sun's Java" in TLJ Daily E-Mail Alert No. 574, December 24, 2003.

Appeals Court. The Appeals Court vacated the mandatory injunction. It wrote that "Because the district court was unable to find immediate irreparable harm and because it entered a preliminary injunction that does not aid or protect the court’s ability to enter final relief on Sun’s PC operating-systems monopolization claim, we vacate the mandatory preliminary injunction."

However, the Appeals Court affirmed the District Court injunction prohibiting Microsoft from distributing products that infringe Sun's copyright interests.

The Court noted that "The traditional office of a preliminary injunction is to protect the status quo and to prevent irreparable harm during the pendency of a lawsuit ultimately to preserve the court’s ability to render a meaningful judgment on the merits." Yet, mandatory injunctions generally do not preserve the status quo.

The Court reviewed the requisite elements for granting a preliminary injunction, and found that immediate irreparable harm if the injunction is not entered was lacking.

The Court also held that "the mandatory preliminary injunction aimed at preventing ``distortion´´ in the new emerging market for middleware has not been linked in fact or by any established legal theory to the final relief that Sun seeks in its claim that Microsoft has illegally maintained its monopoly in the market for worldwide licensing of Intel-compatible PC operating systems.

Reaction. Lee Patch, Sun's VP for Legal Affairs, stated in a release that "We are extremely pleased with the Appellate Court's ruling today affirming the copyright infringement injunction. This decision confirms that Microsoft violated our prior settlement agreement, and that it did so in a way that continued to fragment the Java platform on PCs ... While we are disappointed with the delay that results from the Court's determination to vacate and remand the Must Carry preliminary injunction, the Court accepted the District Court's determination that Microsoft engaged in anticompetitive acts. We look forward to a speedy trial and our opportunity to more fully address these and significant additional violations when we present our complete antitrust case against Microsoft."

Publication Schedule
The Congress will be in recess for the week of the 4th of July. The Supreme Court has issued all of its opinions for the current term. There will be little activity at the federal agencies. Hence, the TLJ Daily E-Mail Alert will be published on Monday and Tuesday, but not on Wednesday, Thursday, or Friday (July 2-4).
Friday, June 27

The House will meet at 9:00 AM for legislative business. See, Republican Whip notice.

8:45 AM. The will be a Rose Garden event at the White House to launch the telemarketing do not call registry. President Bush, FCC Chairman Michael Powell, FTC Chairman Timothy Muris, and others will participate.

9:00 AM. The Progress and Freedom Foundation (PFF) will host a conference titled "Net Neutrality: Consumer Protection or Commercial Ploy?". At 9:00 AM, Nancy Victory, Director of the National Telecommunications and Information Administration (NTIA), will give the opening keynote address. At 9:30 AM, there will be a panel titled "Industry Perspectives on the Need for Regulating Broadband Networks". The participants will include Paul Misener (Amazon), Robert Sachs (National Cable & Telecommunications Association), Tom Tauke (Verizon), and Jeffrey Campbell (Cisco Systems). At 10:45 AM, there will be a panel titled "Economic and Public Policy Perspectives on the Need for Regulating Broadband Networks". The participants will include Bruce Owen (Stanford Institute of Economic Policy Research), Joseph Farrell (University of California at Berkeley), and David Scheffman (Bureau of Economics, Federal Trade Commission). See, PFF notice. Location: J.W. Marriott Hotel.

Day long meeting of the Federal Communications Commission's (FCC) Consumer Advisory Committee.

Deadline to submit comments to the U.S. Patent and Trademark Office (USPTO) in response to its notice of proposed changes to its rules of practice to implement the inter partes reexamination provisions, and other patent related provisions, of HR 2215 (107th Congress), the 21st Century Department of Justice Appropriations Authorization Act, which President Bush signed on November 2, 2002. For more information, contact Kenneth Schor at 703 308-6710. See, Federal Register, April 28, 2003, Vol. 68, No. 81, at Pages 22343 - 22353.

Monday, June 30

The House will be in recess from June 30 through July 4 for the Independence Day District Work Period. The Senate will be in recess also.

1:30 PM. The National Association of Manufacturers (NAM) will host a media roundtable to discuss strenthening and making permanent the research and development tax credit. The speakers will include Monica McGuire of the NAM, and Evan Liddiard, Senior Tax Advisor to Sen. Orrin Hatch (R-UT). Location: NAM, 1331 Pennsylvania Avenue, NW, Suite 600.

The Securities and Exchange Commission's (SEC) rule changes that require that reports by insiders disclosing their securities holdings be filed electronically with the SEC become effective. The SEC stated in an April 24 release that it "voted to mandate the electronic filing of beneficial ownership reports filed by officers, directors and principal security holders under Section 16(a) of the Securities Exchange Act of 1934, and to require issuers with corporate websites to post these reports. Electronic filing and website posting of these reports will result in earlier public notification of insiders' transactions and wider public availability of information about those transactions. The new rules and amendments implement the requirements of Section 16(a)(4), as amended by Section 403 of the Sarbanes Oxley Act of 2002."

Deadline to submit comments to the U.S. Patent and Trademark Office (USPTO) in response to its notice of proposed rule making regarding regulation under the Patent Cooperation Treaty. The USPTO published a notice in the Federal Register stating that it proposes to "amend the rules of practice to conform them to certain amendments made to the Regulations under the Patent Cooperation Treaty (PCT) that will take effect on January 1, 2004. These amendments will result in the addition of a written opinion in PCT chapter I, as well as a simplification of PCT designations and the PCT fee structure. In addition, the Office is proposing to adjust the transmittal, search, and international preliminary examination fees for international applications filed under the PCT ..." See, Federal Register, May 30, 2003, Vol. 68, No. 104, at pages 32441 - 32448.

Tuesday, July 1

8:30 AM - 5:15 PM. The U.S. Department of Commerce will host a one day conference on the U.S. India high tech cooperation titled "Financing Innovation Forum". The speakers will include Phil Bond (Under Secretary of Commerce for Technology), Kenneth Juster (Under Secretary of Commerce in charge of the Bureau of Industry and Security), and Sam Bodman (Deputy Secretary of the Department of Commerce). See, notice and agenda. Location: Ronald Reagan Building International Trade Center.

Deadline to submit reply 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.

Wednesday, July 2

Deadline to submit comments to the National Institute of Standards and Technology (NIST) regarding its draft publication [PDF] titled "Guideline for Identifying an Information System as a National Security System". This is NIST Draft Special Publication 800-59. It provides guidelines for identifying an information system as a national security system consistent with applicable requirements for national security systems as specified in Title III to Public Law 107-347, the Federal Information Systems Management Act of 2002 (FISMA). Send comments to William Barker at

People and Appointments

6/25. President Bush nominated Julie Myers to be an Assistant Secretary of Commerce in charge of export enforcement. If confirmed by the Senate, she will replace Michael Garcia. She is currently Chief of Staff to the Assistant Attorney General in charge of the Criminal Division. Before that, she was Deputy Assistant Secretary for Money Laundering and Financial Crimes at the Department of the Treasury's Office of Enforcement. She also previously worked for the law firm of Mayer Brown & Platt. See, White House release and second White House release.

6/26. President Bush nominated Rene Acosta to be an Assistant Attorney General for the Civil Rights Division. If confirmed by the Senate, he will replace Ralph Boyd. See, White House release.

6/26. President Bush nominated Penrose Albright to be an Assistant Secretary of Homeland Security. See, White House release.

6/25. Secretary of Homeland Security Tom Ridge announced the appointment of 18 members of the Homeland Security Advisory Council (HSAC). The HSAC will be chaired by Joseph Grano (Ch/CEO of UBS Paine Webber). Its Executive Director will be Richard Andrews. The membership will include several former top government officials: William Webster (former federal judge and former FBI Director), James Schlesinger (former Secretary of Defense, Secretary of Energy, and Director of the CIA), and Lee Hamilton (former Representative from Indiana). It will also include several current state and local government officials: Anthony Williams (Mayor of Washington DC), Michael Leavitt (Governor of Utah), and James Moore (Commissioner of the Florida Department of Law Enforcement). It will also include several industry leaders: Richard Davidson (Ch/CEO of Union Pacific), Vance Coffman (Ch/CEO of Lockheed Martin), Sidney Taurel (P/Ch/CEO of Eli Lilly), and Kathleen Bader (Dow Chemical Company). The membership list will also include Jared Cohon (President of Carnegie Melon University), Norman Augustine, Lydia Thomas, Ruth David, and Christopher Furlow. See, DHS release.

6/26. Former Sen. Strom Thurmond (R-SC) died.

FCC News

6/26. The Federal Communications Commission (FCC) announced, but did not release, its Eighth Annual Report on the state of competition in the Commercial Mobile Radio Services (CMRS) industry. The FCC issued a press release [2 pages in PDF] describing the Report. Also, FCC Chairman Michael Powell wrote a statement in which he argued that the Report "demonstrates how a lighter regulatory hand has ushered in innovation and technological advancement, and the power of facilities-based competition into the marketplace." In contrast, Commissioner Michael Copps wrote a separate statement [3 pages in PDF] in which he complained that these reports contain "insufficient data. Much of the limited data included are unverifiable and are derived from sources with a stake in the outcome of our determination." He added that "The Report is largely based on unverified corporate press releases and advertisements, surveys conducted by industry lobbying organizations, unverified Wall Street analysts’ reports that may be influenced by the stock holdings of those analysts’ firms, SEC filings that are not designed for this purpose, and newspaper reports." This is WT Docket No. 02-379.

6/26. The Federal Communications Commission (FCC) announced, but did not release, a Report and Order pertaining to satellite licensing procedures. The FCC issued a brief press release [1 page in PDF]. See also, statement [PDF] by FCC Chairman Michael Powell. This is IB Docket Nos. 02-34 and 00-248.

6/26. The Federal Communications Commission (FCC) announced, but did not release, a Report and Order amending its rules implementing the Telephone Consumer Protection Act of 1991 (TCPA) and establishing a national do not call registry. The FCC issued a press release [4 pages in PDF] describing the Report and Order. See also, statement of FCC Chairman Michael Powell, statement of Commissioner Kathleen Abernathy, statement of Commissioner Michael Copps, and statement of Commissioner Jonathan Adelstein. This is CG Docket No. 02-278.

6/26. The Federal Communications Commission (FCC) approved Qwest Communications' Section 271 application to provide in region interLATA services in the state of Minnesota. See, FCC release [2 pages in PDF] and FCC order [114 pages in PDF].

More News

6/26. The Department of Justice's (DOJ) Antitrust Division issued a release regarding its participation in the second annual International Competition Network (ICN) Conference in Merida, Mexico on June 23 - 25, 2003.

6/26. The House passed HRes 277, expressing support for freedom in Hong Kong, by a vote of 426-1. See, Roll Call No. 326.

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