Tech Law Journal Daily E-Mail Alert
October 14, 2003, 9:00 AM ET, Alert No. 757.
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DOJ Recommends Approval of Qwest's Arizona Long Distance Request

10/9. The Department of Justice's (DOJ) Antitrust Division submitted its evaluation to the Federal Communications Commission (FCC) recommending that the FCC approve Qwest's Section 271 application to provide in region interLATA services in the state of Arizona.

The evaluation states that competitive local exchange carrier (CLEC) entry in Arizona in the business market is 36.9 percent, and CLEC entry in the residential market is 11.6 percent.

Hewitt Pate, Assistant Attorney General in charge of the Antitrust Division, stated in a release that "Conditions in Arizona local telecommunications markets appear favorable to fostering competition ... Facilities-based competitors have made progress in penetrating both the business and residential markets, and the Department believes there are no longer any material obstacles to competition in Arizona created by Qwest."

The application still requires approval by the FCC. See also, Qwest release.

Joint Conference on Accounting Issues Submits Recommendations to FCC

10/9. The Federal-State Joint Conference on Accounting Issues submitted to the Federal Communications Commission (FCC) a list of recommended changes to the FCC's accounting rules, and a request that the FCC issue a notice of proposed rulemaking (NPRM) for the purpose of adopting these recommended changes. See, FCC release, with attached recommendations.

FCC Commissioner Kevin Martin wrote a statement [2 pages in PDF]  in which he expressed concern about some of the recommendations of the Joint Conference.

Commissioner Michael Copps wrote a statement [PDF] in which he said that the FCC "now must move swiftly to convert this Recommendation into a Notice of Proposed Rulemaking". He also wrote that the Joint Conference should now assess additional issues, which he recites.

The Joint Conference was formed in September of  2002 to provide a forum for a dialogue between the FCC and the states to ensure that regulatory accounting data and related information filed by carriers are adequate, truthful, and thorough. This proceeding is WC Docket 02-269.

FRB Governor Discusses High Tech Equity Markets

10/8. Federal Reserve Board (FRB) Governor Susan Bies gave a speech titled "Comments on the Current State of the Economy". She spoke at Middle Tennessee State University in Murfreesboro, Tennessee. She offered her assessment of the rise and decline of tech sector equity markets.

Susan BiesBies (at right) stated that "In the late 1990s, financial conditions were easy. Very narrow risk premiums in both debt and equity markets and lofty expectations about returns on the part of investors and borrowers greatly reduced the cost of external funds. A frenzy of capital-raising followed, led by telecommunication and Internet firms. Corporate debt and equity issuance soared -- adding almost $2 trillion in new debt and equity to the balance sheets of nonfinancial corporations from 1998 through 2000 alone, with a good portion of the money raised by risky firms in the junk bond, venture capital, and initial public offering (IPO) markets. Firms used the proceeds not only to fund investment, but also to finance acquisitions of other companies, stock repurchases, and operating expenses."

She continued that "The spectacular collapse of high-tech equity valuations in the spring of 2000, led by the same telecommunication and Internet firms, wreaked havoc with corporate credit quality in some sectors and began a prolonged retrenchment in financial markets. Subsequently, financial markets were buffeted with a barrage of terrorism, war, and corporate governance shocks that further eroded investor confidence and stoked uncertainty and pessimism."

"The consequent retreat from risk-taking led to a substantial markdown in asset values, with obvious negative consequences for portfolios. Between early 2000 and the end of 2002, more than $6 trillion of stock-market wealth evaporated, and more than $200 billion of corporate bonds went into default. Many of the telecommunication firms that did IPOs or issued junk bonds during the easy market conditions of the late 1990s went bankrupt. For other firms, debt burdens that had appeared manageable suddenly looked excessive. Investors and lenders rightly responded to these events by becoming more wary, and financial conditions accordingly became more restrictive", said Bies.

California Court Rejects Privacy Challenge to Electronic Fingerprinting of Welfare Recipients

10/9. The California Court of Appeal (3) issued its opinion [42 pages in MS Word] in Sheyko v. Saenz, a challenge to the state of California's regulations regarding electronic fingerprinting of welfare recipients.

The California legislature created a program named Statewide Fingerprint Imaging System (SFIS) in order to reduce welfare fraud. The legislature required the California Department of Social Services (DSS) to promulgate regulations implementing the program.

Lyudmila Sheyko and others filed a complaint in California Superior Court (Sacramento County) challenging certain of the SFIS regulations. The trial court granted judgment to Sheyko as to certain regulations. Both Sheyko and Rita Saenz (as Director of the DSS) appealed.

The Court of Appeal upheld the DSS regulations in their entirety.

Sheyko challenged regulations on the basis that they were ineffective. The Court held that "It is for the Legislature to determine whether a particular welfare antifraud measure is or is not effective, therefore Sheyko's assertions that SFIS is ineffective should be addressed to the Legislature, not the judiciary."

Sheyko challenged regulations as an invasion of privacy. The Court held that "Sheyko’s underlying assertions that her privacy or religious freedoms are improperly impaired by SFIS lack merit."

It wrote that "Sheyko views fingerimaging as an invasion of privacy and personal dignity, and invokes the specter of 1984. But the Legislature could rationally find welfare recipients are no more stigmatized by fingerimaging than are driver’s license applicants, lawyers, accountants and many others."

The California Supreme Court has previously rejected a privacy challenge to fingerprinting for driver's licenses, because of the need to deter fraud. See, Perkey v. Department of Motor Vehicles, 42 Cal.3d 185 (1986).

This case is Lyudmila Sheyko. et al. v. Rita Saenz, C.A. No. C039132, an appeal from the Superior Court for Sacramento County, S.C. No. 00CS01130, Judge Ronald Robbie presiding.

Sen. Leahy Introduces Bill to Expand List of Surveillance Provisions of PATRIOT Act to Be Sunsetted

10/1. Sen. Patrick Leahy (D-VT) and others introduced S 1695, the "PATRIOT Oversight Restoration Act". It pertains to the sunsetting of various provisions of the USA PATRIOT Act. This Act was passed by the 107th Congress as HR 3162 shortly after the terrorist attacks of September 11, 2001. It became Public Law 107-56 on October 26, 2001. The original PATRIOT Act provides that some of its provisions sunset, or cease to have effect, on December 31, 2005. Sen. Leahy's bill provides for the sunsetting of more provisions.

Title II of the PATRIOT, which addresses electronic surveillance, provides, at Section 224, for the sunsetting of many of the provisions of Title II. It provides, in part, that "this title and the amendments made by this title (other than sections 203(a), 203(c), 205, 208, 210, 211, 213, 216, 219, 221, and 222, and the amendments made by those sections) shall cease to have effect on December 31, 2005." (Parentheses in original.)

The table at the end of this article lists all of the sections of Title II, offers a brief description, and identifies whether that section would be sunsetted under the PATRIOT Act, under Sen. Leahy's bill, and under Sen. Larry Craig's (R-ID) bill. See, story titled "Senators Craig and Dubin Introduce Bill to Modify PATRIOT Act" in TLJ Daily E-Mail Alert No. 753, October 6, 2003.

Sen. Leahy's bill provides for the sunsetting of, "In title II, all sections other than sections 201, 202, 204, 205, 208, and 221, and the first sentence of section 222."

Sen. Leahy's bill also provides for the sunsetting of sections in other titles, such as Title III (regarding money laundering) and Title IV (regarding border protection). However, those provisions are not addressed in this article, or in the table below.

Sen. Patrick LeahySen. Leahy (at right) offered this summary of the surveillance related provisions of his bill: "The PATRIOT Oversight Restoration Act would extend PATRIOT's sunset provision to other enhanced surveillance provisions in title II of the act. These include subsections (a) and (c) of section 203, which authorize the disclosure of grand jury information to foreign enforcement, intelligence and immigration officials; sections 210 and 211, which broaden the types of information that law enforcement may obtain, upon request, from electronic communication service providers and cable service operators; section 213, which authorizes so-called ``sneak and peak'' -- delayed notification -- search warrants; sections 216 and 222, which significantly expand when, where, and how law enforcement can obtain a pen register or trap and trace order; and section 219, which authorizes judges to sign search warrants for properties located outside their districts." See, Congressional Record, October 1, 2003, at S12283.

The status of many sections of Title II of the PATRIOT Act would not be altered by either the Leahy bill or the Craig bill. The status of some of the less critical sections would be changed. And, the status of some sections containing major changes to law would be changed by either or both of the Leahy and Craig bill.

The original co-sponsors of the Leahy bill are Sen. Larry Craig (R-ID), Sen. Richard Durbin (D-IL), Sen. Harry Reid (D-NV), and Sen. John Sununu (R-NH).

Pen Register and Trap and Trace Devices. Both the Leahy and Craig bills would sunset Section 216, regarding internet communications, including the expansion of the concept of pen register and trap and trace devices (PR&TTD) to online communications.

PR&TTD are telephone industry concepts. Pen registers are used to obtain outgoing phone numbers. Trap and trace devices are used to obtain incoming numbers. Before passage of the PATRIOT Act, the relevant statute referenced "wire" communications.

The PATRIOT Act provides that the concept of a pen register is expanded from merely capturing phone numbers, to capturing routing and addressing information in any electronic communications, including internet communications. It similarly expands the concept of trap and trace devices. The Act also provides that a single order shall apply nationwide.

PR&TTD orders do not authorize a LEA to obtain the content of communications. Court orders authorizing PR&TTD devices do not require a showing of probable cause, as is the case for wiretaps, which enable LEAs to obtain the content of communications.

Boucher Goodlatte Amendment. The Leahy bill would sunset a part of Section 222. Neither the PATRIOT Act, nor the Craig bill, would sunset any part of this section. While almost all of Title II pertains to the expansion of surveillance authority, Section 222 imposes limits of government authority.

Section 222 of the PATRIOT Act, which is titled "Assistance to Law Enforcement Agencies", provides, in full, that "Nothing in this Act shall impose any additional technical obligation or requirement on a provider of a wire or electronic communication service or other person to furnish facilities or technical assistance. A provider of a wire or electronic communication service, landlord, custodian, or other person who furnishes facilities or technical assistance pursuant to section 216 shall be reasonably compensated for such reasonable expenditures incurred in providing such facilities or assistance."

The Leahy bill would sunset the second of the two sentences. That is, the Leahy bill, would not sunset the ban on technology mandates; however, it would sunset the requirement that LEAs compensate ISPs for expenses incurred in providing PR&TTD assistance.

This section derives from an amendment offered by Rep. Bob Goodlatte (R-VA) and Rep. Rick Boucher (D-VA) at the House Judiciary Committee's markup of the PATRIOT Act on October 3, 2001. See, story titled "No Technology Mandates" in TLJ Daily E-Mail Alert No. 279, October 4, 2003.

They explained their reasons for offering this amendment. They were concerned about the history of the Communications Assistance for Law Enforcement Act (CALEA). Congress passed this Act in 1994 to enable LEAs to maintain their existing wiretap capabilities in new telecommunications devices. The Congress had cell phones in mind. It provides that wireline, cellular, and broadband PCS carriers must make their equipment capable of certain surveillance functions. However, the FBI has since sought an implementation of CALEA that expands surveillance capabilities beyond those provided in the statute. Moreover, the FCC, which has written implementing rules, has largely backed the FBI. This has imposed considerable burdens and costs upon service providers, and their customers.

Sneak and Peak. Both the Leahy and Craig bills would provide for the sunsetting of Section 213, which provides authority for delaying notice of the execution of a warrant. The PATRIOT Act does not sunset this provision, which is also sometimes referred to as "sneak and peak".

Another bill, S 1701, the "Reasonable Notice and Search Act", introduced by Sen. Russ Feingold (D-WI) on October 2, would also sunset Section 213.

Section 219. Both the Leahy and Craig bills would provide for the sunsetting of Section 219, which provides for single-jurisdiction search warrants for terrorism.

Section 215 and Library Records. The American Library Association (ALA) and others have complained about FBI use of Section 215 to obtain library records. However, Attorney General John Ashcroft recently announced that the FBI has not yet used Section 215 to obtain any records.

The PATRIOT Act provides for the automatic sunsetting of this provision. Both the Leahy and Craig bills also provide for the sunsetting of Section 215.

Summary of the Sunset Provisions of PATRIOT Act, Leahy Bill, and Craig Bill
(Pertaining to Title II -- Enhanced Surveillance Procedures).
Section Topic Sunset
201 Authority to intercept wire, oral, and electronic communications relating to terrorism Y N Y
202 Authority to intercept wire, oral, and electronic communications relating to computer fraud and abuse offenses Y N Y
203 Authority to share criminal investigation information      
  (a) Authority to share grand jury information N Y N
  (b) Authority to share electronic, wire and oral interception information Y Y Y
  (c) Procedures N Y N
  (d) Foreign intelligence information Y Y Y
204 Clarification of intelligence exceptions from limitations on interception and disclosure of wire, oral, and electronic communication Y N Y
205 Employment of translators by the FBI N N N
206 Roving surveillance authority under the FISA Y Y Y
207 Duration of FISA surveillance of non-United States persons who are agents of a foreign power Y Y Y
208 Designation of judges (under the FISA) N N N
209 Seizure of voice-mail messages pursuant to warrants Y Y Y
210 Scope of subpoenas for records of electronic communications N Y N
212 Emergency disclosure of electronic communications to protect life and limb Y Y Y
213 Authority for delaying notice of the execution of a warrant N Y Y
214 Pen register and trap and trace authority under FISA Y Y Y
215 Access to records and other items under the FISA Y Y Y
216 Modification of authorities relating to use of pen register and trap and trace devices N Y Y
217 Interception of computer trespasser communications Y Y Y
218 Foreign intelligence information Y Y Y
219 Single-jurisdiction search warrants for terrorism N Y Y
220 Nationwide service of search warrants for electronic evidence Y Y Y
221 Trade Sanctions N N N
222 Assistance to law enforcement agencies N * N
223 Civil liability for certain unauthorized disclosures Y Y Y
224 Sunset - - -
225 Immunity for compliance with FISA wiretap Y Y Y
Y - means this section would be sunsetted.
N - means this section would not be sunsetted.
L - Leahy bill, S 1695.
C - Craig bill, S 1709.
* - The Leahy bill would sunset only the second of the two sentences of Section 222.
Sen. Feingold Introduces Bill to Limit Delayed Notice Warrants

10/2. Sen. Russ Feingold (D-WI) introduced S 1701, the "Reasonable Notice and Search Act", a bill to limit the use of delayed notice warrants, also know as "sneak and peak" warrants.

Sen. Feingold summarized his bill in the Senate. "This bill addresses the provision of the USA PATRIOT Act that has caused perhaps the most concern among Members of Congress. Section 213 of the PATRIOT Act, sometimes referred to as the ``delayed notice search provision´´ or the ``sneak and peek provision,´´ authorizes the Government in limited circumstances to conduct a search without immediately serving a search warrant on the owner or occupant of the premises that have been searched." See, Congressional Record, October 2, 2003, at S12377-8.

Sen. Feingold's bill would require the government to give notice of the warrant within 7 days, but allows a judge to extend this time period. Section 213 requires notice within an undefined "reasonable period". The bill would also narrow the circumstances in which a delayed notice warrant could be issued.

Finally, this bill would provide for the sunsetting of Section 213 at the end of 2005.

The bill was referred to the Senate Judiciary Committee. Sen. Feingold is a member.

Senate Judiciary Committee to Hold Hearings on Combatting Terrorism and Protecting Liberties

10/2. Sen. Orrin Hatch (R-UT), the Chairman of the Senate Judiciary Committee (SJC), and Sen. Patrick Leahy (D-VT), the ranking Democrat on the Committee, announced that the SJC  will "hold a new series of oversight hearings on the adequacy of federal laws to help prevent and respond to acts of terrorism in the United States." They added that the "first hearing is tentatively scheduled for October 21."

These hearings will provide an opportunity to examine the proposals contained bills recently introduced by Senators Leahy (S 1695), Craig (S 1709), Feingold (S 1701), and others.

Sen. Orrin HatchHatch (at right) and Leahy elaborated that this "inquiry will include a review of how effective the current laws are at protecting America; whether additional tools, reporting obligations and oversight may be needed; and the implications to security, privacy and civil liberties of current laws including the USA PATRIOT Act. Additionally, Senators Hatch and Leahy will request information from the Justice Department on how law enforcement and intelligence agencies are using existing laws to combat terrorism."

Sen. Hatch summarized the purpose of the hearings in a release -- to "get the facts necessary to find out if we are we protecting both our citizens' lives and their liberties."

Sen. Leahy stated that "We need to know more about how the tools we gave the government in the USA PATRIOT Act are being used. Which are working, and how well? Which are not working, and why? Have any struck the wrong balance, threatening the civil liberties of our citizens while doing little or nothing to improve the nation's security? Oversight is an important responsibility of the Congress and our committee, and thorough and constructive oversight makes government work better."

The TLJ Daily E-Mail Alert was not published on Friday, October 10, or on Monday, October 13.
FCC Announces Agenda for October 16 Meeting

10/9. The Federal Communications Commission (FCC) announced the agenda [PDf] for its Thursday, October 16 meeting.

First, the FCC will consider a Report and Order regarding the allocation, band plan and service rules in the 71-76 GHz, 81-86 GHz and 92-95 GHz bands. This is WT Docket No. 02-146 and RM-10288.

Second, the FCC will consider an Order on Remand, Further Notice of Proposed Rulemaking, and Memorandum Opinion and Order regarding the universal service support mechanism for non-rural carriers. This item follows the July 31, 2001 opinion of the U.S. Court of Appeals (10thCir) in Qwest v. FCC, 258 F.3d 1191, which reversed and remanded the FCC's Ninth Order "because it does not provide sufficient reasoning or record evidence to support its reasonableness." See also, the FCC web page titled "Tenth Circuit Remand". This is CC Docket No. 96-45.

Third, the FCC will consider an Order to resolve issues raised in the Auction No. 52 Comment Public Notice related to the FCC's authority to auction Direct Broadcast Satellite (DBS) licenses and eligibility for the DBS licenses currently available. See also, the FCC web page titled "Auction 52: Direct Broadcast Satellite Service". This is AUC-03-52.

Fourth, the FCC will consider an Order regarding applications submitted by commercial television stations seeking extensions of the May 1, 2002, deadline for construction of digital television facilities.

Fifth, the FCC will consider a Report and Order regarding licensing, technical and competitive bidding rules for spectrum in the 1710-1755 MHz and 2110-2155 MHz bands, which is allocated for advanced wireless services (AWS). AWS, which is also known as Third Generation (3G) wireless services, is a digital, packet switched, internet protocol system. It is planned that it will carry voice, music and data. It is also planned that it will increase the efficiency of use of spectrum. It is intended to bring broadband internet access to portable devices. See also, the FCC's November 22, 2002 notice of proposed rulemaking (NPRM) [44 pages in PDF], and the FCC's 3G web page. This is WT Docket No. 02-353. The NPRM is FCC 02-305.

The meeting will be held in the FCC's Commission Meeting Room, 445 12th Street, SW, Room TW-C05. The meeting will also be webcast.

Tuesday, October 14
Recent Additions Are Highlighted In Red

The House will meet at 12:00 NOON in pro forma session only. See, Republican Whip notice.

The Senate will meet at 9:30 AM. The agenda includes morning business, resumption of consideration of S 1689, the FY 2004 Emergency Supplemental Appropriations bill for Iraq and Afghanistan, and resumption of consideration of S 1053, the "Genetic Information Nondiscrimination Act of 2003".

The Supreme Court will hear oral argument in Verizon v. Law Offices of Curtis Trinko, No. 02-682. This is a case involving the application of Section 2 of the Sherman Antitrust Act, 15 U.S.C. § 2, in the context of telecommunications. See, TLJ story titled "Supreme Court Grants Certiorari in Verizon v. Trinko", March 10, 2003.

9:00 AM. The Department of Homeland Security (DHS) Science and Technology Directorate will host a seminar about the application process for the Support Anti-terrorism by Fostering Effective Technologies Act of 2002 (SAFETY Act). For more information, contact 202 282-8010. Location: J.W. Marriott, 1331 Pennsylvania Avenue, NW.

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in Mobilfone Service, Inc. v. FCC, No. 02-1197. Judges Henderson, Tatel and Roberts will preside. Location: 333 Constitution Ave. NW.

10:00 AM. The Senate Banking Committee will consider several nominations including Harvey Rosen and Kristin Forbes to be members of the Council of Economic Advisers, Julie Myers and Peter Lichtenbaum to be Assistant Secretaries of Commerce for Export Enforcement. The Committee will then hold a hearing on the renominations of Roger Ferguson to be Vice Chairman of the Board of Governors of the Federal Reserve System, and Ben Bernanke to be a member of the Board of Governors. See, notice. Location: Room 538, Dirksen Building.

12:15 PM - 2:00 PM. The Forum on Technology & Innovation will host a briefing titled "International Challenges to Controlling Spam". The speakers will be Howard Beales (Director of the Federal Trade Commission's Bureau of Consumer Protection), Andrew Pinder (U.K. Prime Minister Tony Blair's e-Envoy), and Charles Curran (Assistant General Counsel at America Online). For more information, contact Bill Bates at 202 969-3395. Location: Room 106, Dirksen Building.

2:00 - 4:00 PM. The Department of Homeland Security's (DHS) National Infrastructure Advisory Council (NIAC) will meet telephonically. The agenda provides that the NIAC will receive the findings and propose recommendations developed by its working groups on Cross Sector Interdependencies and Risk Assessment Guidance and Regulatory Guidance, and receive status briefings on the continuing activities of its working groups on Vulnerability Disclosure Guidelines and the Evaluation and Enhancement of Information Sharing and Analysis. The NIAC is also accepting written comments. To listen only, call 1-877-888-4034. See, notice in the Federal Register, October 7, 2003, Vol. 68, No. 194, at Page 57914.

4:00 PM. Clarisa Long (University of Virginia School of Law) will present a draft paper titled "The Patent/Copyright Interface". See, notice. For more information, contact Robert Brauneis at 202 994-6138 or Location: George Washington University Law School, Faculty Conference Center, Burns Building, 5th Floor, 716 20th Street, NW.

Deadline to submit comments to the LOCAL Television Loan Guarantee Board's regarding the information and recordkeeping requirements of the proposed regulation to implement the LOCAL Television Loan Guarantee Program, as authorized by the Launching Our Communities' Access to Local (LOCAL) Television Act of 2000. The purpose of the Act is to facilitate access to signals of local TV stations in nonserved areas and underserved areas. The Act establishes a LOCAL Television Loan Guarantee Board to approve guarantees of up to 80% of loans totaling no more than $1.25 Billion. The regulation proposes to establish eligibility and guarantee requirements, the application and approval process, the administration of guarantees, and the process through which the Board will consider applications under the priority considerations required in the Act. See, notice in the Federal Register, August 15, 2003, Vol. 68, No. 158, at Pages 48814 - 48833. See also, Treasury release.

Wednesday, October 15

The House will meet at 2:00 PM for legislative business. It will consider several non-tech related items under suspension of the rules. Votes will be postponed until 6:30 PM. See, Republican Whip Notice.

9:30 AM. The Senate Judiciary Committee will hold a hearing on several pending judicial nominations, including Michael Fisher (to be a Judge of the U.S. Court of Appeals for the 3rd Circuit), Dale Fischer (to be Judge of the U.S. District Court for the Central District of California), and Gary Sharpe (Northern District of New York). See, notice. Location: Room 226, Dirksen Building. Press contact: Margarita Tapia (Hatch) at 202 224-5225 or David Carle (Leahy) at 202 224-4242.

12:15 PM. The Federal Communications Bar Association's (FCBA) Transactional Practice Committee will host a brown bag lunch titled "Anatomy of a Commercial Agreement and Contract Provisions Regarding Performance Requirements". For more information, contact Laurie Sherman at or 703 216-3150. RSVP to Ava Smith at or 202-371-7201. Location: Skadden Arps, 1440 New York Avenue, 11th floor.

1:00 to 5:00 PM. The Internet Corporation for Assigned Names and Numbers (ICANN) Security and Stability Advisory Committee (SECSAC) will hold its second meeting regarding VeriSign's temporary changed to the way the COM and NET registries responded when presented with uninstantiated names. Location: Academy for Educational Development, Vista Room, 8th floor, 1825 Connecticut Ave, NW.

Deadline to submit comments to the National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) regarding its draft [137 pages in PDF] of NIST Special Publication 800-61, titled "Computer Security Incident Handling Guide". See also, story titled "NIST Publishes Draft of Computer Security Incident Handling Guide" in TLJ Daily E-Mail Alert No. 741, September 17, 2003.

Thursday, October 16

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

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

9:30 AM. The Senate Judiciary Committee will hold an executive business meeting. See, notice. Location: Room 226, Dirksen Building.

10:00 AM. The House Ways and Means Committee will hold a hearing titled "United States - China Economic Relations and China's Role in the Global Economy". See, notice. Location: Room 1100, Longworth Building.

12:30 PM. The Congressional Caucus on Intellectual Property Promotion and Piracy Prevention and former Commissioners of the U.S. Patent and Trademark Office (USPTO) will hold a press conference to urge the House leadership to schedule a vote on HR 1561, the "United States Patent and Trademark Fee Modernization Act of 2003", a bill that would, among other things, end the diversion of USPTO fees. Press contact: Lale Mamaux (Office of Rep. Wexlar) at 202 225- 3001 or Location: Room 505, Cannon Building.

Friday, October 17

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

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in Sioux Valley Rural Television v. FCC, No. 02-1208. Judges Henderson, Tatel and Roberts will preside. Location: Courtroom 20, 333 Constitution Ave. NW.

10:00 AM. The House Ways and Means Committee will continue its hearing titled "United States -- China Economic Relations and China's Role in the Global Economy". See, notice. Location: Room 1100, Longworth Building.

2:30 - 4:30 PM. Federal Communications Commission (FCC) International Bureau (IB) will hold a public forum to examine the methods and practices the FCC used in preparation for 2003 World Radioconference (WRC-03), and to assess whether the process can be improved. The FCC seeks public views on how the FCC could further facilitate public participation, increase transparency, intensify its international outreach and generally promote public interest goals in the WRC preparatory process. See, notice [PDF]. Location: FCC, Commission Meeting Room (Room TW-C305), 445 12th Street, SW.

3:00 PM. The U.S. District Court (DC) will hold a meeting and conference hearing in Conversent Communications v. AT&T, D.C. No. 1:2001-cv-1198. Location: Courtroom 14, 333 Constitution Ave. NW.

Deadline to submit requests to the Trade Policy Staff Committee (TPSC) to testify at its November 5, 2003 hearing on negotiations with Bahrain on a free trade agreement (FTA). The TPSC seeks comments and testimony to assist the Office of the U.S. Trade Representative (USTR) on many topics, including "Relevant trade-related intellectual property rights issues that should be addressed in the negotiations" and "Existing barriers to trade in services between the United States and Bahrain that should be addressed in the negotiations". See, notice in the Federal Register, August 25, 2003, Vol. 68, No. 164, at Pages 51062 - 51064.

Deadline for the Federal Trade Commission (FTC) to submit its brief to the U.S. Court of Appeals (10thCir) in FTC v. Mainstream Marketing Service, No. 03-1429. This is the telemarketers' constitutional challenge to the FTC's do not call registry. See, October 8, 2003 order [24 pages in PDF] staying the District Court's opinion, and setting an expedited schedule.

Sunday, October 19

Day one of a three day conference titled "Networked Economy Summit". See, event web site and agenda. Location: Hyatt Regency Reston, Reston, VA.

Monday, October 20

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in Global Naps v. FCC, No. 02-1202. Judges Edwards, Garland and Williams will preside. Location: 333 Constitution Ave. NW.

10:00 AM - 3:00 PM. The Federal Communications Commission's (FCC) Technological Advisory Council will meet. See, notice in the Federal Register, October 2, 2003, Vol. 68, No. 191, at Pages 56840 - 56841. This meeting will focus on voice over internet protocol (VOIP). There will be no public presentations, but the FCC is accepting written comments. See, FCC notice. Location: FCC, 445 12th St. SW, Room TW-C305.

12:15 PM. The Federal Communications Bar Association's (FCBA) Common Carrier Practice Committee will host a brown bag lunch titled "Meet the 8th Floor Common Carrier/Wireline Competition Legal Advisors". The scheduled speakers are Christopher Libertelli, Matthew Brill, Jessica Rosenworcel, Daniel Gonzalez, and Lisa Zaina. RSVP to Cecelia Burnett at 202-637-8312 or Location: Hogan & Hartson, 555 13th St., NW, Lower Level.

6:00 - 8:15 PM. Intellectual Property Section of the D.C. Bar Association will host a CLE course titled "Transactions Involving Intellectual Property, Part I: Intellectual Property in Mergers and Acquisitions Including Tax Considerations". Prices vary. For more information, call 202 626-3488. Location: D.C. Bar Conference Center, 1250 H Street NW, B-1 level.

Day one of a two day conference hosted by the Department of Commerce's (DOC) Bureau of Industry and Security (BIS) titled "16th Annual Update Conference on Export Controls and Policy". Kenneth Juster, Under Secretary for BIS, will speak at 8:30 AM. See, notice and agenda. The price to attend ranges from $625 to $700. Location: Renaissance Hotel, 999 9th Street, NW.

Day two of a three day conference titled "Networked Economy Summit". See, event web site and agenda. Location: Hyatt Regency Reston, Reston, VA.

Deadline to submit comments to the National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) regarding its draft Special Publication 800-38C, Recommendation for Block Cipher Modes of Operation: the CCM Mode for Authentication and Confidentiality [PDF]. The NIST stated that "the CCM mode of the Advanced Encryption Standard (AES) algorithm is specified for the protection of sensitive, unclassified data. The CCM algorithm combines the counter (CTR) mode for confidentiality with the cipher block chaining-message authentication code (CBC-MAC) technique for authentication." Send comments to

Bush Praises Class Action Reform Bill

10/9. President Bush gave a speech in Manchester, New Hampshire. He addressed, among other topics, class action reform. He praised HR 1115, the bill sponsored by Rep. Bob Goodlatte (R-VA) and Rep. Rick Boucher (D-VA) bill named the "Class Action Fairness Act".

He stated that "Businesses are more likely to hire people if the health care for workers is affordable. We need to allow association health care plans, where small businesses can pool risk and gain the same bargaining power as big businesses. And in order to control health care costs, we need effective legal reform, medical liability reform at the federal level."

He continued that "Defensive medicine against frivolous lawsuits runs up the federal budgets, it increases the cost of Medicare and Medicaid and veteran health benefits. Medical liability reform is a national problem that requires a national solution."

He concluded that "Unfair lawsuits are also harming a lot of good and honest employers. There are too many large settlements that leave plaintiffs with a small sum and lawyers with a fortune. Class actions and mass tort suits that reach across state lines should be tried in a federal court so lawyers cannot shop around looking for a favorable judge. And most of the money in a judgment or settlement should go to those who have actually been harmed, not the lawyer."

The House, but not the Senate, has passed a bill that addresses some of the concerns expressed by President Bush. The House passed HR 1115, the "Class Action Fairness Acton", on June 12, 2003 by a vote of 253-170. This was a largely party line vote, although 32 Democrats joined Republicans in voting for the bill. See, Roll Call No. 272. See also, stories titled "Reps. Goodlatte and Boucher Re-Introduce Class Action Fairness Act" in TLJ Daily E-Mail Alert No. 619, March 10, 2003 and "House Passes Class Action Fairness Act" in TLJ Daily E-Mail Alert No. 680, June 13, 2003.

This bill amends 28 U.S.C. § 1332, regarding diversity of citizenship. It provides 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.

President Bush stated that "The House has passed a good bill. It is stuck in the Senate. Senators must understand no one has been healed by a frivolous lawsuit in America."

People and Appointments

10/10. Joseph Hall was named Senior Policy Fellow in the Securities and Exchange Commission's (SEC) Office of General Counsel for a two year term beginning on October 20, 2003. He is currently a partner in the New York City office of the law firm Davis Polk & Wardwell. See, SEC release.

More News

10/3. A trial jury of the U.S. District Court (DMd) returned a verdict in favor of Lowry's Reports, Inc. (LR) in its copyright infringement action against Legg Mason, which had republished issues of LR newsletters on its corporate intranet. The jury awarded damages of just under $20 Million. See, LR release and Wiley Rein & Fielding (counsel for LR) release. Legg Mason also issued a release. It wrote that "Legg Mason expressed its shock at the extent of the damages awarded to Lowry's by the jury and its belief that those damages are grossly excessive. Legg Mason said that over the course of the next few weeks, it will aggressively pursue all options to protect the interests of its stockholders."

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