9/30. The Senate Commerce Committee held a hearing regarding the telemarketing do not call registry, and recent court developments in cases pertaining to the registry. The Chairmen of the Federal Trade Commission (FTC) and Federal Communications Commission (FCC) testified that they believe the U.S. District Court (DColo) erred when it held that FTC's do not call registry violates the First Amendment free speech rights of telemarketers. The FCC Chairman stated that the FCC will continue to enforce its do not call rules.

On September 25, the District Court in Denver, Colorado issued its Memorandum Opinion and Order [34 pages in PDF]. This case is Mainstream Marketing Service, TMG Marketing Inc., and American Teleservices Association v. Federal Trade Commission, et al., D.C. No. 03-N-0184, U.S. District Court for the District of Colorado, Judge Edward Nottingham presiding.

See also, stories titled "Colorado District Court Holds That Do Not Call Registry Violates 1st Amendment" in TLJ Daily E-Mail Alert No. 747, September 26, 2003, "FTC Appeals District Court Ruling That Do No Call Registry Violates 1st Amendment" in TLJ Daily E-Mail Alert No. 748, September 29, 2003, and "Do Not Call Registry Developments" in TLJ Daily E-Mail Alert No. 749, September 30, 2003.

FTC Chairman Timothy Muris stated in his prepared testimony that "U.S. District Judge Nottingham in Denver ruled that the Do Not Call Registry offends the First Amendment because it makes a content-based distinction between its treatment of commercial telemarketing calls to sell goods or services and noncommercial calls soliciting charitable contributions. We believe that as a matter of law this decision is incorrect, and are therefore confident of ultimate success on appeal. Nevertheless, this legal dispute could take years to resolve. In the meantime, the status of the Registry is unsettled."

Muris (at right) said that "it is unclear the extent to which Judge Nottingham's decision permits the FCC to access the Registry for enforcement or companies under FCC jurisdiction to access the Registry for compliance with the FCC's rules."

He added that the Colorado ruling "threatens the ability of the states with do not call laws to enforce them".

He concluded that "We believe that the FTC is likely to succeed on the merits of its appeal because the district court's decision reached an unprecedented conclusion that telemarketers have a constitutional right to continue telemarketing calls to consumers who have indicated that they do not want these calls. This holding is at odds with the relevant Supreme Court cases. Specifically, the court erred in its application of Central Hudson Gas & Electric Corp. v. Public Service Commission of New York ..." (See, 447 U.S. 557 (1980).)

Federal Communications Commission (FCC) Chairman Michael Powell stated in his prepared testimony that the FCC "will enforce its National Do-Not-Call rules against telemarketers that have obtained the Do-Not-Call Registry from the Federal Trade Commission." No court has enjoined the FCC.

"I believe our rules will withstand Constitutional challenge. In the end, I am simply unwilling to accept the notion that the First Amendment unavoidably bars the American people from deciding who calls them in the privacy of their own homes. I assure you that the full resources of the FCC are committed to defending our rules and taking any steps necessary to effectively implement and enforce them, to the full extent permissible by law", said Powell.

He elaborated that "More than ten years ago, Congress vested the Federal Communications Commission with broad authority to protect consumers from unwanted calls. In our June order, we expanded on that effort. Last week, when these rules were challenged in the 10th Circuit Court of Appeals, the Court specifically refused to block our rules. It held that ``on the record presented ... [the telemarketing industry] ha[d] failed to establish a likelihood of success on the merits.´´ Citing the strong public interest in leaving these rules in place, the Court made clear that the rules should go forward. Most recently, the Supreme Court yesterday declined to disturb the Court's ruling." (Brackets in original.)

He added that "as a practical matter, challenges to the FTC's rules affect the enforcement of our rules because the statute instructed the two agencies to work in partnership with one another to achieve our common consumer protection goals. Over the past week, three district court decisions (the most recent issued last night) addressing the FTC's rules have introduced confusion with regard to the implementation and enforcement of the national Do-Not-Call Registry. The Colorado district court's order last night has raised questions about the FCC's ability to enforce the list. Most directly, to the extent the court's ruling prevents the FCC from accessing the FTC's database, our enforcement efforts may be hampered."

Gerald Cerasale, SVP of the Direct Marketers Association, stated in his prepared testimony that "We continue to believe that the FTC list is fatally flawed by important constitutional defects." He also offered several benefits of telemarketing. He asserted that "many American consumers respond favorably to telemarketing", that "telemarketing provides employment to many Americans", and that it "adds competitiveness to the U.S. economy. It provides information on new products and services and on prices".

Cerasale also raised several objections to the do not call registry. He stated that "it is imperative that the registration process ensures the accuracy of telephone numbers that are placed on the do-not-call registry. Internet registration is subject to abuse. It is our understanding and belief that there are not sufficient protections in place in connection with Internet registration to: (1) verify that the numbers were submitted by the persons to whom the numbers are assigned; (2) determine whether the individual submitting the number has permission to submit the numbers; or (3) determine that the numbers are not business numbers (which are not candidates for inclusion on the registry)." (Parentheses in original.) He also stated that there should be only one do not call registry, but there remain in effect state do not call registries."

9/26. Joshua Bolton, Director of the Office of Management and Budget (OMB), wrote a memorandum to the heads of executive departments and agencies titled "OMB Guidance for Implementing the Privacy Provisions of the E-Government Act of 2002". See, also OMB release [1 page in PDF] describing the memorandum.

The Act requires departments and agencies to conduct privacy impact assessments (PIAs) "before -- (i) developing or procuring information technology that collects, maintains, or disseminates information that is in an identifiable form; or (ii) initiating a new collection of information that -- (I) will be collected, maintained, or disseminated using information technology; and (II) includes any information in an identifiable form permitting the physical or online contacting of a specific individual, if identical questions have been posed to, or identical reporting requirements imposed on, 10 or more persons, other than agencies, instrumentalities, or employees of the Federal Government."

This memorandum provides detailed guidance regarding PIAs for electronic information systems and collections, including when to conduct PIAs, when PIAs are not required, how to conduct PIAs, and what to address in PIAs.

The memorandum also provides detailed guidance regarding privacy policies on agency websites used by the public. The memorandum sets a deadline of December 15, 2003 for departments and agencies to adopt website privacy policies.

HR 2548 in the 107th Congress, titled "The E-Government Act of 2002", was signed on December 17, 2002, and became effective on April 17, 2003. It is Public Law 107-347. It is codified at 44 U.S.C. Ch. 36. Section 208 of the Act, which is attached as Exhibit B to the OMB memorandum, contains privacy provisions, and requires the Director of the OMB to issue implementing guidelines.

9/30. The U.S. Court of Appeals (9thCir) issued its en banc opinion in EEOC v. Luce Forward, holding that employers (in this case, a law firm) that require employees to sign arbitration agreements do not violate Title VII of the Civil Rights Act of 1964, as amended by the 1991 Act.

Luce Forward is a large California law firm that required employees, as a condition for employment, to sign an agreement to submit disputes arising out of their employment to binding arbitration. This is significant because the Civil Rights Act of 1964, as amended in 1991, provides for trial by jury of employment discrimination claims.

Luce Forward refused to hire as a legal secretary a person who refused to sign the agreement. He filed a complaint in state court. The Equal Employment Opportunity Commission (EEOC) also filed a complaint in U.S. District Court (CDCal) on his behalf alleging violation of Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act of 1990 (ADA), the Age Discrimination in Employment Act of 1967 (ADEA), and the Equal Pay Act of 1963 (EPA). The focus of this case is Title VII.

The District Court refused, on res judicata grounds, to award make whole relief and rejected the EEOC’s request for injunctive relief under the ADA, the ADEA, and the EPA. However, the District Court enjoined Luce Forward from requiring applicants to agree to arbitrate Title VII claims and from enforcing existing agreements to arbitrate those claims. See, 122 F. Supp. 2d 1080.

A three judge panel of the Court of Appeals reversed. It held that employers may require employees to sign agreements to arbitrate Title VII claims as a condition of their employment.

The District Court relied on the 9th Circuit's earlier decision in Duffield v. Robertson Stephens & Co., 144 F.3d 1182 (1998). The three judge panel held that the Supreme Court's decision in Circuit City Stores, Inc. v. Adams, 532 U.S. 105 (2001), implicitly overruled Duffield.

The majority of the en banc panel wrote that while it disagreed with the three judge panel's "conclusion that Circuit City implicitly overruled Duffield, we need not explore that disagreement in detail. It suffices to note that the panel opinion has been withdrawn. Id. We now conclude that, although Circuit City did not overrule Duffield, Duffield was wrongly decided; we therefore overrule it ourselves.

And, since the en banc panel overruled Duffield, it reversed the judgment of the District Court insofar as it granted the EEOC’s request for injunctive relief. It added that "With regard to the EEOC's request for injunctive relief on its retaliation theory, we remand this issue to the district court to address in the first instance."

Judge Pregerson (joined by Schroeder and Reinhardt) wrote a partial dissent. He wrote that "Congress in enacting the Civil Rights Act of 1991 did not intend that employers could force their employees as a mandatory condition of employment to forego their right to bring future Title VII claims in a court of law." He added that, in overruling Duffield, "the majority opinion allows employers to force their employees to choose between their jobs and their right to bring future Title VII claims in court. That choice is no choice at all."

Judge Reinhardt (joined by Pregerson) wrote a separate dissent.

9/26. Sen. Max Baucus (D-MT), the ranking Democrat on the Senate Finance Committee, and nine other Senators, wrote a letter [2 pages in PDF] to President Bush arguing that "Taiwan should be under consideration for a free trade agreement with the United States." And more generally, the letter inquires "What are the criteria for determining whether to negotiate a free trade agreement?"

9/30. Sen. Max Baucus (D-MT) gave a speech [5 pages in PDF] ... in which he addressed trade with the Middle East. He observed that "the true dawn of the information age occurred not in Silicon Valley, but in the Middle East, where mathematicians first conceived the idea of the number zero." He stated that "The President's initiative now seeks to engage the Middle East economically by negotiating a free trade area in the Middle East by 2013. This is an excellent idea. It would re-ignite economic growth and expand opportunity in both the United States and the Middle East." He also promoted S 1121, the "Middle East Trade and Engagement Act", which he introduced, along with Sen. John McCain (R-AZ). He said that "Our bill gives the President the power to allow countries in what we term the ``Greater Middle East´´ that meet certain conditions -- such as supporting the war on terrorism and reforming their economies -- to export products to the United States duty free."

9/30. Trade representatives of Western Hemisphere nations began a four day meeting in Port of Spain, Trinidad and Tobago. The Office of the U.S. Trade Representative (USTR) stated in a release [PDF] the the purpose of this meeting is "to lay the final preparatory groundwork" for the Free Trade Area of the Americas (FTAA) ministerial to be held in Miami, Florida in November.

9/30. President Bush signed HJRes 69, the Continuing Appropriations for Fiscal Year 2004. See, White House release.

9/30. The Federal Communications Commission (FCC) released a Consumer Advisory [2 pages in PDF] regarding the status of the telemarketing, the national telemarketing do not call registry, and filing of complaints.

9/30. The Federal Communications Commission (FCC) announced that it fined Globcom, Inc. $806,861 for failure to make universal service and telecommunications relay service payments. See, FCC release and Notice of Apparent Liability for Forfeiture and Order, FCC No. 03-231.

9/30. The Federal Election Commission (FEC) announced that it has assessed administrative fines against 48 party committees, candidate committees, and political action committees (PACs) for the late or non-filing of reports required by the Federal Election Commission Act (FECA). The FEC fined several technology related PACs, including Level 3 Communications Inc. Political Action Committee ($375), EDS Political Action Committee ($1,000), NCR Corporation Citizenship Fund ($1,000), T-Mobile Political Action Committee ($1,000), and VENTUREPAC ($6,000). Each of these fines was for the late or non-filing of the 12 Day Pre-General 2002 reports. See, FEC release.

The House will meet at 10:00 AM for legislative business. See, Republican Whip Notice.

9:00 AM - 4:00 PM. Day two of a two day conference titled "Workshop on Regional, State and Local Initiatives in Nanotechnology", hosted by the Department of Commerce (DOC) and the National Nanotechnology Coordination Office (NNCO). See, agenda [PDF]. Location: DOC, Main Auditorium, 14th Street and Constitution Ave., NW.

9:00 AM - 5:00 PM. Day one of a two day meeting of the Federal Bureau of Investigation's (FBI) Compact Council for the National Crime Prevention and Privacy Compact. See, notice in the Federal Register: August 28, 2003, Vol. 68, No. 167, at Page 51807. Location: Radisson Hotel Old Town Alexandria, 901 North Fairfax Street, Alexandria, VA.

10:00 AM. The Senate Finance Committee will hold a business meeting to consider an amendment in the nature of a substitute to S 1637, the "Jumpstart Our Business Strength (JOBS)" act, a bill to amend the Internal Revenue Code of 1986 to bring the U.S. foreign income tax regime into compliance with the World Trade Organization (WTO) rulings that held the FSC and ETI tax regimes to be illegal export subsidies. Location: Room 215, Dirksen Building.

10:00 AM. The Senate Judiciary Committee will hold a hearing on the nomination of Dora Irizarry to be a Judge of the U.S. District Court for the Eastern District of New York. Press contact: Margarita Tapia (Hatch) at 202 224-5225 or David Carle (Leahy) at 202 224-4242. Location: Room 226, Dirksen Building.

11:15 AM. The House Commerce Committee will mark up several technology related bills: HR 2898, the "E-911 Implementation Act of 2003", HR 3140, the "Fairness to Contact Lens Consumers Act", and HR 3143, the "International Consumer Protection Act of 2003". Press contact: Ken Johnson or Jon Tripp at 202 225-5735. Location: Room 2123, Rayburn Building.

12:00 NOON. The Phoenix Center for Advanced Legal and Economic Policy Studies will host a news conference regarding TELRIC pricing and the Federal Communications Commission's (FCC) triennial review order. For more information, contact Larry Spiwak at 202 274-0235. Location: Lisagor Room, National Press Club, 529 14th St. NW, 13th Floor.

1:00 PM. The House Homeland Security Committee will hold a hearing on fraudulent identification and the threat posed to homeland security. See, notice. Press contact: Liz Tobias at 202 226-9600. Location: Room 2318, Rayburn Building.

2:00 PM. The House Judiciary Committee's Subcommittee on Commercial and Administrative Law will hold a hearing titled "The Streamlined Sales Tax Agreement: States’ Efforts to Facilitate Sales Tax Collection from Remote Vendors". The hearing will be webcast. Press contact: Jeff Lungren or Terry Shawn at 202 225-2492. Location: Room 2141, Rayburn Building.

2:00 PM. The House Financial Services Committee's (HFSC) Subcommittee on Domestic and International Monetary Policy, Trade and Technology will hold a hearing titled "China's Exchange Rate Regime and its Effects on the U.S. Economy?" The witnesses will include Under Secretary for International Affairs John Taylor. Location: Room 2128, Rayburn Building.

Day four of a four day conference hosted by the Appalachian Regional Commission titled "RuralTelCon03". See, conference website. Location: Hyatt Regency Hotel, 400 New Jersey Ave., NW.

The Federal Trade Commission's (FTC) will require full compliance with its amended Telemarketing Sales Rule as of October 1, 2003. See, notice in the Federal Register, April 4, 2003, Vol. 68, No. 65, at Pages 16414 - 16415.

U.S. Patent and Trademark Office (USPTO) rules changes pertaining to USPTO fees takes effect. See, notice in the Federal Register July 14, 2003, Vol. 68, No. 134, at Pages 41532 - 41535. However, legislation is pending in the Congress that would supercede this rule. On July 9, 2003 the House Judiciary Committee approved HR 1561, the "United States Patent and Trademark Fee Modernization Act of 2003". See, story titled "House Judiciary Committee Approves USPTO Fee Bill" in TLJ Daily E-Mail Alert No. 695, July 10, 2003.

The House will meet at 10:00 AM for legislative business. See, Republican Whip Notice.

8:00 AM - 12:15 PM. There will be a conference titled "Dialogue on Nanotechnology and Federal Regulation". Department of Commerce (DOC) Deputy Under Secretary Ben Wu will speak at 9:00 AM. on the potential regulatory issues that may emerge from nanotechnology research and commercialization. See, notice. Location: Woodrow Wilson International Center for Scholars, 1300 Pennsylvania Ave., NW, 5th Floor Conference Room.

8:45 AM - 12:30 PM. The Cato Institute will host a conference titled "The Future of the U.S. Postal Service". Participants will address the report [208 pages in PDF] by the President's Commission on the U.S. Postal Service. See, story titled "Presidential Commission Reports on USPS and E-Mail" in TLJ Daily E-Mail Alert No. 710, August 4, 2003. See, notice and registration information. Lunch will follow the program. Location: Cato, 1000 Massachusetts Ave., NW.

9:30 AM. The Senate Commerce Committee will hold a hearing on media ownership. The hearing will be webcast. The witnesses will include Mark Cooper (Consumer Federation of America), Victor Miller (Bear Stearns & Co.), Eli Noam (Columbia Institute for Tele-Information), and Philip Napoli (Fordham University). See, notice. Press contact: Rebecca Hanks (McCain) at 202 224-2670 or Andy Davis (Hollings) at 202 224-6654. Location: Room 253, Russell Building.

10:00 AM. The House Judiciary Committee's Subcommittee on Courts, the Internet, and Intellectual Property will meet to mark up HR 2517, the "Piracy Deterrence and Education Act of 2003" and HR 2824, the "Internet Tobacco Sales Enforcement Act". Press contact: Jeff Lungren or Terry Shawn at 202 225-2492. Location: Room 2141, Rayburn Building.

9:30 AM. The Senate Judiciary Committee will hold an executive business meeting. Press contact: Margarita Tapia (Hatch) at 202 224-5225 or David Carle (Leahy) at 202 224-4242. Location: Room 226, Dirksen Building.

12:00 NOON - 1:30 PM. The Federal Communications Bar Association's (FCBA) Common Carrier Practice Committee will host a brown bag lunch. The topic will be "Antitrust Law and the Telecommunications Act of 1996: Broader Implications of the Supreme Court Trinko Case". The speakers will include Donald Russell (Robbins Russell), John Thorne (Verizon), and Chris Wright (Harris Wiltshire). RSVP to Cecelia Burnett at 202 637-8312 or cmburnett@hhlaw.com. This event was originally scheduled for September 18, but was rescheduled because of Hurricane Isabel. Location: Hogan & Hartson, 555 13th Street, NW, lower level.

The rules changes regarding the unbundling requirements of incumbent local exchange carriers (ILECs) that are contained in the Federal Communications Commission's (FCC) triennial review order [576 pages in PDF] take effect. See also, notice in the Federal Register, September 2, 2003, Vol. 68, No. 169, at Pages 52275 -  52306, describing the rules changes. See also, TLJ story titled "Summary of FCC Triennial Review Order", also published in TLJ Daily E-Mail Alert No. 725, August 25, 2003. See also, stories titled "FCC Announces UNE Report and Order", "FCC Order Offers Broadband Regulatory Relief", "FCC Announces Decision on Switching", "Commentary: Republicans Split On FCC UNE Order", and "Congressional Reaction To FCC UNE Order" in TLJ Daily E-Mail Alert No. 609, February 21, 2003.

Deadline to submit comments to the Federal Communications Commission (FCC) regarding the portion of the FCC's triennial review order [576 pages in PDF] that contains a notice of proposed rulemaking [NPRM] regarding modifications to the FCC's rules implementing 47 U.S.C. § 252(i), which requires local exchange carriers (LECs) to make available to other telecommunications carriers interconnection agreements approved under Section 252. See, notice in the Federal Register, September 2, 2003, Vol. 68, No. 169, at Pages 52307 - 52312, and September 2 FCC release [3 pages in PDF].

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

9:00 AM - 5:00 PM. Day two of a two day meeting of the Federal Bureau of Investigation's (FBI) Compact Council for the National Crime Prevention and Privacy Compact. See, notice in the Federal Register: August 28, 2003, Vol. 68, No. 167, at Page 51807. Location: Radisson Hotel Old Town Alexandria, 901 North Fairfax Street, Alexandria, VA.

10:00 AM. The Trade Policy Staff Committee (TPSC) will hold a public hearing to assist the U.S. Trade Representative (USTR) in preparing a report to the Congress on the People's Republic of China's compliance with its World Trade Organization (WTO) obligations. Location: Truman Room, White House Conference Center, 726 Jackson Place, NW. This hearing had previously been scheduled for September 18, but was postponed because of the weather. See, notice in the Federal Register, September 30, 2003, Vol. 68, No. 189, at Page 56374.

12:00 NOON. The Cato Institute will host a panel discussion titled "Regulations ``R´´ U.S.? The State of the Regulatory State". The speakers will be John Graham (Office of Management and Budget), David Schoenbrod (New York Law School), and Clyde Wayne Crews (Cato). See, notice. Lunch will be served. Location: Room B-369, Rayburn Building.

12:00 NOON. The Federal Society will host a luncheon titled "I.P. in the Digital Age". For more information, contact David Ray at 202 822-8138. Location: Murrow Room, National Press Club, 529 14th St. NW, 13th Floor.

12:30 PM. Sen. Orrin Hatch (R-UT), the Chairman of the Senate Judiciary Committee, will give a luncheon speech. Location: Ballroom, National Press Club, 529 14th St. NW, 13th Floor.

12:15 PM. The Federal Communications Bar Association's (FCBA) Wireless Practice Committee will host a lunch. Bill Maher, Bureau Chief of the Federal Communications Commission's (FCC) Wireline Competition Bureau will address common carrier issues relevant to the wireless industry, including intermodal local number portability (LNP), intercarrier compensation and the triennial review order. The price to attend is $15.00. RSVP to Wendy Parish at wendy@fcba.org by 5:00 PM on Tuesday, September 30th. Location: Sidley & Austin, 1501 K Street, NW, Conference Room 6E.

Yom Kippur.

The Supreme Court begins its October 2003 term.

Extended deadline to submit comments to the Executive Office of the President's (EOP) Office of Science and Technology Policy's (OSTP) National Science and Technology Council's (NSTC) Subcommittee on Research Business Models regarding the relationship between federal agencies and researchers. The NSTC published its original notice in the Federal Register on August 6 stating that it "is undertaking a review of policies, procedures, and plans relating to the business relationship between federal agencies and research performers with the goal of improving the performance and management of federally sponsored basic and applied scientific and engineering research." See, Federal Register, August 6, 2003, Vol. 68, No. 151, at Pages 46631 - 46632. See also, notice of extension in the Federal Register, September 16, 2003, Vol. 68, No. 179, at Pages 54226 - 54227.

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in Jacqueline Orloff v. FCC, No. 02-1189. Judges Sentelle, Randolph and Rogers will preside. See, brief [51 pages in PDF] of the FCC. Location: 333 Constitution Ave. NW.

10:00 AM - 4:00 PM. The Internet Corporation for Assigned Names and Numbers' (ICANN) Security and Stability Advisory Committee (SECSAC) will hold a meeting to gather input regarding VeriSign's recent change to the operation of the registry for the .com and .net Top Level Domains (TLDs). See, notice. Location: Center for Strategic and International Studies (CSIS), 1800 K Street, NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Intouch Group v. Amazon.com, No. 02-1631. This is an appeal from the U.S. District Court (NDCal) in a patent infringement case (D.C. No. C-00-1156-DLJ) involving internet audio technology. Intouch alleged that Amazon's, and others', method of interactive delivery of portions of recorded music infringe its business method patent. See, U.S. Patent No. 5,237,157, titled "Kiosk apparatus and method for point of preview and for compilation of market data", and U.S. Patent No. 5,963,916 titled "Network apparatus and method for preview of music products and compilation of market data". Location: Courtroom 203, 717 Madison Place, NW.

9/30. The Senate confirmed Ronald White to be a Judge of the U.S. District Court (EDOkla) by a vote of 93-0. See, Roll Call No. 370.

9/30. The Senate confirmed Marcia Crone to be a Judge of the U.S. District Court (EDTex) by a vote of 91-0. See, Roll Call No. 369.

9/29. Barry Beringer, Chief Counsel to the House Committee on Science, died. See, release.