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November 11, 2003, 9:00 AM ET, Alert No. 776.
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Supreme Court Grants Certiorari in Intel v. AMD

11/10. The Supreme Court granted certiorari in Intel v. AMD, a case regarding the availability of a discovery order from a U.S. District Court, pursuant to 28 U.S.C. § 1782, for a complainant in an antitrust matter before the European Commission. See, Order List [8 pages in PDF] at page 2.

Advanced Micro Devices (AMD) and Intel have a long history of competing in the production of microprocessors -- and in the courtroom. AMD filed a complaint with the Directorate General - Competition of the European Commission alleging that Intel violated Article 82 of the EC Treaty, which prohibits "abuse by one or more undertakings of a dominant position within the common market."

AMD then sought discovery from Intel under 28 U.S.C. § 1782, which provides that "The district court of the district in which a person resides or is found may order him to give his testimony or statement or to produce a document or other thing for use in a proceeding in a foreign or international tribunal ..." AMD sought documents pertaining to another antitrust action in the U.S. against Intel (a matter regarding Intergraph). Intel objected. AMD then sought to compel discovery in the U.S. District Court (NDCal). The District Court held that the EC action was not a proceeding within the meaning of Section 1782. AMD appealed.

On June 6, 2003 the U.S. Court of Appeals (9thCir) issued its opinion [10 pages in PDF] holding that discovery is available in the U.S. pursuant to 28 U.S.C. § 1782 for a complainant in an Article 82 antitrust matter before the European Commission.

The Court of Appeals stated that Section 1782 is broad and inclusive and includes quasi judicial and administrative bodies, and preliminary investigations leading to judicial proceedings. It held that "the EC is an administrative body and that the investigation being conducted by its Directorate is related to a quasi- judicial or judicial proceeding. AMD has the right to petition the EC to stop what it believes is conduct that violates the EC Treaty, to present evidence it believes supports its allegations, to have the EC evaluate what it presents and to have the resulting action (or inaction) reviewed by the European courts. Although preliminary, the process qualifies as a ``proceeding before a tribunal´´ within the meaning of 28 U.S.C. § 1782."

Moreover, the Appeals Court held that Section 1782 does not "require a threshold showing on the party seeking discovery that what is sought be discoverable in the foreign proceeding." The Appeals Court reversed and remanded to the District Court. Intel then petitioned the Supreme Court for writ of certiorari.

The Solicitor General (SG), at the request of the Supreme Court, submitted an amicus brief. He urged the Supreme Court to grant certiorari.

The SG wrote that "The petition raises important and unsettled matters respecting the rights of an applicant to obtain discovery of information in United States courts under 28 U.S.C. 1782 for use ``in a proceeding in a foreign or international tribunal.´´"

The SG further wrote that there is a conflict among the circuits "on whether Section 1782 authorizes production of materials only when they would be subject to compelled disclosure in the foreign proceeding in which the material would be used. That recurring issue presents a matter of considerable importance that is ripe for this Court's resolution."

The SG also wrote that "Intel's second and third questions, which focus on whether the European Commission's investigation into anti-competitive practices constitutes ``a proceeding in a foreign or international tribunal" and whether AMD would be an ``interested person´´ with respect to those ``proceedings,´´ present relatively narrower issues that have not generated mature conflicts among the courts of appeals. The petition nevertheless should be granted on those issues as well so that the Court may address the full range of interrelated issues raised under Section 1782 in this case."

The Supreme Court's Order List states only that "The petition for a writ of certiorari is granted. Justice O'Connor took no part in the consideration or decision of this petition." It does not clarify whether the Court granted certiorari as to all of the issues raised by Intel.

The U.S. Chamber of Commerce submitted an amicus curiae brief [24 pages in PDF] urging the Court to grant certiorari. It argued that "Under the Ninth Circuit's ruling, any company that operates abroad can obtain nearly unlimited access to the business documents and competitive plans of its business rivals by filing a complaint with the European Commission and then seeking discovery under 28 U.S.C. § 1782. Under the Ninth Circuit's decision, the company is allowed this discovery without taking on any costs or risks of litigation, even though the discovery is not necessary to the decisionmaking of the Commission. By breezing past the statutory requirements that limit Section 1782 discovery to an ``interested person´´ ``for use in a proceeding in a foreign or international tribunal´´ and ignoring the discovery rules of the European Commission, the Ninth Circuit's ruling, if not reviewed by this Court, would open the door to businesses seeking to harass and obtain sensitive information from their U.S.-based rivals by exploiting the liberal discovery rules of the United States."

This case is Intel Corporation v. Advanced Micro Devices, Inc., Supreme Court No. 02-572, on petition for writ of certiorari to the U.S. Court of Appeals for the 9th Circuit, Appeals Court No. No. 02-15070, an appeal from the U.S. District Court for the Northern District of California, Judge William Ingram presiding, D.C. No. CV-01-07033-WAI.

See also, story titled "9th Circuit Rules on Discovery in U.S. for EC Antitrust Proceeding" in TLJ Daily E-Mail Alert No. 446, June 7, 2002.

Briefs Filed With Supreme Court in Nixon v. Missouri Municipal League

11/11. Numerous briefs have been filed with the U.S. Supreme Court in Nixon v. Missouri Municipal League, a case regarding 47 U.S.C. § 253(a) and state statutes that prohibit political subdivisions from offering telecommunications services. Several amici argue that not allowing local governments to provide telecommunications services hinders the deployment of broadband services in rural and underserved areas.

Jeremiah Nixon is a party to this litigation in his capacity as Attorney General of Missouri. The state of Missouri passed a law that says that Missouri's political subdivisions (such as towns and counties) cannot offer telecommunications services. The incumbent local exchange carrier (ILEC), Southwestern Bell, does not want to compete against service providers that are subsidized and favored the local governments. It supports the Missouri legislation. The Missouri Municipal League (MML), which represents political subdivisions in Missouri, opposes the statute, and wants it preempted by federal law. The Federal Communications Commission (FCC), which has statutory authority to preempt this statute, sides with the state of Missouri and Southwestern Bell as a matter of statutory construction. It also argues that government entities cannot be both regulators and competitors. The FCC issued an order in which it declined to preempt the statute.

This case has attracted numerous amicus curiae briefs. Some amici argue, as a matter of public policy, that this case is about spurring broadband deployment. That is, they argue that in many rural areas and small towns broadband access services will not be provided by the private sector, and therefore, government entities should be allowed to provide these important services.

The Supreme Court has scheduled oral argument for Monday, January 12, 2004.

The Statutes. Missouri Statutes, Section 392.410(7), provides that, subject to certain enumerated exceptions, "No political subdivision of this state shall provide or offer for sale, either to the public or to a telecommunications provider, a telecommunications service or telecommunications facility used to provide a telecommunications service for which a certificate of service authority is required pursuant to this section."

The Communication Act, at 47 U.S.C. § 253(a), provides that "No State or local statute or regulation, or other State or local legal requirement, may prohibit or have the effect of prohibiting the ability of any entity to provide any interstate or intrastate telecommunications service." (Emphasis added.)

FCC Proceedings. Various municipalities and municipal organizations filed a petition with the Federal Communications Commission (FCC) asking that it preempt the Missouri statute for being in violation of § 253(a).

The FCC denied the request to preempt by Memorandum Opinion and Order [18 pages in PDF] released on January 12, 2001. This is CC Docket No. 98-122.

The FCC wrote that "We do not preempt the enforcement of HB 620 to the extent that it limits the ability of municipalities or municipally owned utilities, acting as political subdivisions of the state of Missouri, from providing telecommunications services or facilities. As we found in the Texas Preemption Order, the term ``any entity´´ in section 253(a) of the Act was not intended to include political subdivisions of the state, but rather appears to prohibit restrictions on market entry that apply to independent entities subject to state regulation."

The FCC added that "municipal entry into telecommunications could raise issues regarding taxpayer protection from economic risks of entry, as well as questions concerning possible regulatory bias when a municipality acts as both a regulator and a competitor."

Court of Appeals. The municipal entities then filed a petition for review with the U.S. Court of Appeals (8thCir). Southwestern Bell and Nixon (Missouri) intervened in support of the FCC. The National Association of Telecommunications Officers and Advisors (NATOA) and the United Telecom Council supported the municipal parties, as amici curiae.

The Appeals Court vacated the FCC order, and remanded. It reasoned in its opinion [11 pages in PDF] that "The dispute hinges on the meaning of the phrase ``any entity´´ in § 253 of the Act. More precisely, do the words ``any entity´´ plainly include municipalities and so satisfy the Gregory plain statement rule? We hold that they do." This opinion is also published at 299 F.3d 949.

See also, story titled "8th Circuit Rules States Cannot Bar Municipalities From Providing Telecom Services" in TLJ Daily E-Mail Alert No. 492, August 15, 2002.

Petitions for Writ of Certiorari. The Supreme Court granted certiorari on June 23, 2003. The three consolidated petitions are Nixon v. Missouri Municipal League (S.C. No. 02-1238 ), FCC v. Missouri Municipal League (S.C. No. 02-1386), and Southwestern Bell v. Missouri Municipal League (S.C. No. 02-1405). See, Order List [12 pages in PDF] at page 2.

See also, the FCC's petition for writ of certiorari [71 pages in PDF], Nixon's petition for writ of certiorari [37 pages in PDF], and the respondents' brief in opposition [PDF] to granting certiorari. See also, story titled "Supreme Court Grants Certiorari in Nixon v. Missouri Municipal League" in TLJ Daily E-Mail Alert No. 687, June 25, 2003.

FCC Briefs on the Merits. The FCC wrote in its brief [31 pages in PDF] on the merits for the Supreme Court that § 253(a) does not preempt a state law allocating authority to the state's political subdivisions unless it can be shown that Congress's intent to preempt such laws is clear under the rule of Gregory v. Ashcroft, 501 U.S. 452 (1991). It argues that such intent is not clear, and therefore, the 8th Circuit should be reversed.

The FCC wrote that "It is common ground that 47 U.S.C. 253(a), which preempts state laws that ``prohibit or have the effect of prohibiting the ability of any entity to provide any interstate or intrastate telecommunications service,´´ applies to state laws that regulate entry by private firms into the telecommunications market. The question presented is whether it also preempts state laws that limit or prohibit the State's own political subdivisions from providing telecommunications service. The court of appeals in this case, as well as each of the other courts that has addressed that question, has concluded that it is governed by the clear statement rule of Gregory v. Ashcroft, 501 U.S. 452 (1991). That conclusion is correct."

The FCC brief continues that "If Section 253(a) were construed to preempt state laws that allocate authority to political subdivisions, it would interfere with a fundamental aspect of state sovereignty. ... Congress does not ordinarily intend to interfere with state authority in areas that are so central to state self-government. Accordingly, Section 253(a) cannot be construed to have that effect unless it can be concluded with certainty that Congress so intended."

Southwestern Bell Brief. Southwestern Bell argues in its brief [50 page PDF scan] that "Under Gregory v. Ashcroft and its progeny, section 253(a) can be interpreted to strip the States of the right to decide whether their political subdivisions offer telecommunications only if the Court were to determine that section 253(a) is unmistakably clear in compelling that interpretation. That standard is not remotely satisfied. Section 253(a) is at best ambiguous as to whether Congress intended the extreme result of freeing political subdivisions of the constraints placed upon them by state law. Accordingly, the judgment of the Eighth Circuit should be reversed."

"Congress passed the 1996 Act, and section 253(a) in particular, to overturn state exclusive-franchise laws and thus free private competitors potentially subject to state regulation from the state and local laws that would otherwise preclude their entry into local telecommunications markets. That step itself transformed traditional local telecommunications regulation. However, section 253(a) does not demonstrate -- much less demonstrate unmistakably -- that Congress went much further and forced the States to allow their own instrumentalities to offer telecommunications services even if the State has decided against that course as a matter of policy."

Southwestern Bell's brief was prepared by the law firm of Kellogg Huber.

Rep. Boucher's Brief. Rep. Rick Boucher (D-VA), who is a member of the House Commerce Committee, and its Subcommittee on Telecommunications and the Internet, submitted an amicus curiae brief [18 pages in PDF]. Rep. Boucher, who was present during the drafting of the 1996 Act, argued that "State laws prohibiting local governments from providing telecommunications services are invalid." He urges that the 8th Circuit be affirmed.

Rep. Rick BoucherFirst, Rep. Boucher (at right) argued statutory construction. "In the 1996 Telecommunications Act, the Congress provided that the states may not prohibit ``any entity´´ from providing telecommunications services. The words ``any entity´´ should be given their ordinary meaning, which certainly includes a governmental entity. Congress chose not to make the same distinction in section 253(a) between public and private entities that was made in the pole attachment section of Act, 47 U.S.C. § 224, a part of the Act on which Congressman Boucher focused specifically. The Federal Communication Commission's contrary interpretation is inconsistent with the plain meaning of the statutory language, the intent of Congress, and the policy goals of the Act. This Court should honor the intent of Congress and allow local governments to offer commercial telecommunications services, notwithstanding any barriers to market entry enacted by the States."

Next, he argued why this interpretation is vital to broadband deployment in his district -- a large, rural district in southwest Virginia. His brief states that "limitations on the availability of advanced telecommunications services have constrained the ability of Southwest Virginia to attract new employers and make the most of the region's potential for economic development. Businesses and consumers increasingly require high bandwidth connections that remain unavailable in many areas of Southwest Virginia."

The brief notes that localities in Rep. Boucher's district, including the City of Bristol, have begun telecommunications projects, and the Rep. Boucher has secured a federal grant funding for his district for fiber optic backbone projects.

The brief concludes that "The return on investment for these projects can only be measured in the economic future of the region. The policies of the Telecommunications Act are being served when local governments are allowed to proceed with these projects to provide opportunities for Southwest Virginians, opportunities without which the task of achieving growth and opportunity in this area would become far more challenging."

Rep. Boucher's brief was prepared by the law firm of Elliott Lawson & Pomrenke of Bristol, Virginia. This firm also prepared an amicus brief [17 pages in PDF] for Educause, in which it argued that "Especially where private companies have failed to meet local needs, local governments and higher education working together have pioneered efforts to solve the economic development and advanced networking needs of underserved localities, creating significant competitive advantages for communities that may otherwise lag behind on the technology adoption curve."

This firm also prepared an amicus brief [28 pages in PDF] for Virginia localities in which it argued that "In Virginia, some localities would be unserved or underserved unless local governments are considered ``entities´´ that can provide telecommunications services."

High Tech Broadband Coalition Brief. The High Tech Broadband Coalition (HTBC) and the Fiber-to-the-Home Council (FTTHC) filed a joint amicus curiae brief [PDF].

The HTBC is a group that is made up of industry groups. Its members include the Business Software Alliance (BSA), Consumer Electronics Association (CEA), National Association of Manufacturers (NAM), Semiconductor Industry Association (SIA), and Telecommunications Industry Association (TIA). See also, HTBC release. If broadband internet access is widely deployed and used, the members of these groups will sell more software, computers, electronics devices, components, fiber optic cable, telecommunications equipment, and other things.

The HTBC and FTTHC argue that "As both Congress and the FCC have repeatedly recognized, the national deployment of broadband and other advanced telecommunications services is in the Nation’s interest."

They state that "Municipal entry into the telecommunications market has been enormously valuable in countless instances of deployment in areas that are not an investment priority for private sector providers."

The conclude that "Precluding states from erecting barriers to municipal entry into the market for advanced telecommunications services is not only appropriate from a policy perspective, it is also legally the right result and consistent with Congress’s intention when it enacted the 1996 Act. The legislative history plainly demonstrates that Congress carefully selected broad language, "any entity," when it described the scope of the competition it sought to protect."

CFA Brief. The Consumer Federation of America (CFA) filed an amicus curiae brief [28 pages in PDF] in which it argued that "Bans on municipal entry protect neither consumers nor taxpayers, and inhibit the formation of much-needed competition. In many small and rural communities across the country (and even in many major markets), consumers continue to wait for benefits that such competition could bring. Instead of meaningful competition, consumers are faced with escalating prices charged by and inadequate service received from incumbent providers. In addition, the same incumbent providers resist competition by implementing monopolistic practices that make it difficult for fledgling competitors to succeed. State-imposed prohibitions on municipal entry into telecommunications may prevent residents of small and rural communities from having access to the advanced telecommunications services that are essential in order to be able to participate fully in today’s society."

And, finally, the Missouri Municipal League (MML), argues in its brief [52 pages in PDF] that the 8th Circuit should be affirmed.

The Baller Herbst Law Group, which represents the MML in this matter, has collected numerous documents from the FCC proceeding, the 8th Circuit proceeding, and the Supreme Court proceeding. As of November 10, it had collected and published 27 documents in PDF. See, Baller Herbst web page titled "Missouri Preemption Litigation".

Bush Names Patrick Hughes for Information Analysis Position at DHS

11/10. President Bush announced his intent to appoint Patrick Marshall Hughes to be Assistant Secretary for Information Analysis at the Department of Homeland Security. He is currently a consultant. Previously, he was Director of the Defense Intelligence Agency (DIA) at the Department of Defense (DOD). And before that, he was Director of Intelligence for the Joint Staff, Director of Intelligence for U.S. Central Command, and Commanding General of the U.S. Army Intelligence Agency. See, White House release. He will replace Paul Redmond, who resigned.

The Homeland Security Act of 2002, HR 5005 (107th Congress) and Public Law No. 107-296, creates, in Title II, a directorate headed by an Under Secretary named the "Directorate for Information Analysis and Infrastructure Protection". It has primary responsibility for information sharing and cyber security matters. Title II also creates the positions of Assistant Secretary for Infrastructure Protection and Assistant Secretary for Information Analysis.

President Bush named Frank Libutti to head the Title II Directorate in March of 2003. He also named Robert Liscouski and Paul Redmond for the two Title II Assistant Secretary positions earlier in March. See, story titled "Bush Fills More Tech Positions at DHS" in TLJ Daily E-Mail Alert No. 623, March 14, 2003.

Redmond is a former Central Intelligence Agency (CIA) employee. He held the positions of Associate Deputy Director for Operations for Counterintelligence, Special Assistant to the Director for Counterintelligence and Security, and Deputy Chief of the D.C.I. Counterintelligence Center. However, he resigned shortly after taking office at the DHS.

On June 5, 2003 Redmond testified before two subcommittees of the House Select Committee on Homeland Security. He candidly identified a lack of staff, lack of capability, and lack preparation at the DHS's Office of Information Analysis for assessing bioterror threats.

Democrats on the Committee publicly criticized the DHS. Rep. Jim Turner (D-TX), the ranking Democrat, wrote a letter to President Bush regarding problems at the DHS's Office of Information Analysis. See also, release of Rep. Louise Slaughter (D-NY), with a copy of Rep. Turner's letter attached, release of Rep. Nita Lowey (D-NY), and release of Rep. Jim Langevin (D-RI). Redmond then resigned.

More People and Appointments

11/10. Christopher Smith was named the new Chief of Staff of the Department of the Treasury, effective December 1. He will replace Tim Adams, who resigned. Smith is currently Counselor to the Treasury Secretary. Previously, he worked for the House Ways and Means Committee from 1988 through 2000. Before that he was a budget examiner and a special assistant at the Office of Management and Budget (OMB) from 1987 through 1988, and a program evaluator at the General Accounting Office (GAO) from 1986 through 1987. See, Treasury release.

FCC Releases LNP Order That Addresses Wireline to Wireless

11/10. The Federal Communications Commission (FCC) announced and released a Memorandum Opinion and Order and Further Notice of Proposed Rulemaking [35 pages in PDF] regarding local number portability (LNP). It requires wireline to wireless portability. Wireless carriers praised the FCC. Some wireline carriers suggested that they might seek legal relief.

This item states that "We find that porting from a wireline carrier to a wireless carrier is required where the requesting wireless carrier's ``coverage area´´ overlaps the geographic location in which the customer's wireline number is provisioned, provided that the porting-in carrier maintains the number’s original rate center designation following the port."

It also states that "wireline carriers may not require wireless carriers to enter into interconnection agreements as a precondition to porting between the carriers."

This item also includes a further notice of proposed rulemaking (FNPRM). It states that the FCC seeks public "comment on how to facilitate wireless-to-wireline porting if the rate center associated with the wireless number is different from the rate center in which the wireline carrier seeks to serve the customer. In addition, we seek comment on whether we should require carriers to reduce the length of the porting interval for ports between wireless and wireline carriers."

See also, FCC release [2 pages in PDF] summarizing this item. The FCC adopted this item on November 7, and released it on November 10, 2003. This is FCC 03-284 in CC Docket No. 95-116.

FCC Chairman Michael Powell wrote in a separate statement [PDF] that "After today it's easier than ever to cut the cord. By firmly endorsing a customer’s right to untether themselves from the wireline network -- and take their telephone number with them -- we act to eliminate impediments to competition between wireless and wireline services. Seamless wireline-to-wireless porting is another landmark on the path to full fledged facilities-based competition."

In addition, Commissioner Kathleen Abernathy wrote a separate statement [PDF], Commissioner Kevin Martin wrote a separate statement [PDF], Commissioner Michael Copps wrote a separate statement [PDF], and Commissioner Jonathan Adelstein wrote a separate statement [PDF].

On October 7, 2003, the FCC issued a Memorandum Opinion and Order (MOO) [PDF] in its proceeding titled "In the Matter of Telephone Number Portability -- Carrier Requests for Clarification of Wireless-Wireless Porting Issues". This MOO addressed wireless to wireless, but not wireless to wireline, LNP issues. See, story titled "FCC Issues LNP Order" in TLJ Daily E-Mail Alert No. 756, October 9, 2003. This is FCC 03-237, in CC Docket No. 95-116.

On November 10, Steve Largent, P/CEO of the Cellular Telecommunications & Internet Association (CTIA), stated in a release that "the FCC struck down a major barrier to competition in the near-monopoly landline telephone market - and consumers are the real winners. Competition has proven to be the strongest force for falling prices and increased innovation, and America's landline telephone customers will have choices like never before ... Millions of landline customers may want to take advantage of the convenience and value of wireless, by transferring their home numbers to mobile phones."

Sprint praised the FCC order in a release. It stated that "Local number portability holds the promise to enhance consumer choice and improve competition, and today’s action will ensure that the full benefits of portability will extend to landline customers as well."

Wireline companies expressed less enthusiasm.

Walter McCormick, P/CEO of the U.S. Telecommunications Association (USTA), stated in a release that "Unfortunately, with this ruling, the Commission chose not to take the time to address many critical issues for porting. As a result, instead of ensuring the benefits of a vibrant voice market, the FCC severely limited consumer choice by sharply reducing the ability of wireline providers to actively compete for customers."

Qwest SVP Gary Lytle stated in a release that "This is a one-way street that will leave millions of customers stranded without the ability to convert wireless numbers to wireline." He added that "Qwest supports wireless to wireline number portability, but once again the Federal Communications Commission is creating a regulatory scheme that picks winners and losers. Qwest supports true customer choice, which means the ability to take their telephone numbers with them to either a wireless or wireline option." He also stated that "Qwest is exploring its legal options."

BellSouth stated in a release that "There are technical as well as procedural problems here. On August 18, 1997, the FCC issued a report and order on local number portability. It was an order that dealt mostly with allowing customers to keep the same number for their wired phone when they moved within the same neighborhood. In that order, the FCC recognized -- and we quote -- `that it will probably be necessary to modify and update the local number portability standards and procedures in order to support wireless number portability.´"

"Now, more than six years after the FCC instituted their number portability regime, the commission extended the rules without any official proceeding. We think this lack of notice violates the legal standards of the Administrative Procedures Act requiring an agency to provide notice and a period for comment on its proposed actions", wrote BellSouth.

More News

11/10. The Federal Communications Commission (FCC) released its Third Memorandum Opinion and Order [59 pages in PDF] "modifying the rules that new 2 GHz Mobile-Satellite Service (MSS) licensees are to follow when relocating incumbent Broadcast Auxiliary Service (BAS) licensees in the 1990-2025 MHz band and Fixed Service (FS) microwave licensees in the 2180-2200 MHz band." The FCC adopted this MOO on November 5, and announced and released it on November 10, 2003. This is ET Docket No. 95-18, ET Docket No. 00-258, and IB Docket No. 01-185.

Washington Tech Calendar
New items are highlighted in red.
Tuesday, November 11

Veterans Day.

The FCC will be closed.

The House will not meet. See, Republican Whip Notice.

Wednesday, November 12

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

10:00 AM. The Senate Judiciary Committee will hold a hearing to examine judicial and executive nominations. Press contact: Margarita Tapia (Hatch) at 202 224-5225 or David Carle (Leahy) at 202 224-4242. Location: Room 226, Dirksen Building.

11:00 AM. The Cato Institute will host a book forum on Black Ice: The Invisible Threat of Cyberterrorism. Author Dan Verton will speak. See, Amazon page and Cato notice. Lunch will follow the program. Location: 1000 Massachusetts Ave., NW.

3:00 PM. The Center for Strategic and International Studies (CSIS) will release a report titled "Spectrum Management For The 21st Century". The speakers at this event will be Rep. Tom Davis (R-VA), Rep. Christopher Shays (R-CT), Michael Gallagher (acting head of the National Telecommunications and Information Administration), James Schlesinger, and Janice Obuchowski (former Nextwave EVP). Press contact: Mark Schoeff at 202 775-3242 or Location: Room 2154, Rayburn Building.

Deadline to submit comments to the U.S. Patent and Trademark Office (USPTO) regarding proposed changes to its rules of practice to support the implementation of the 21st Century Strategic Plan. The proposed changes include permitting electronic signatures on a number of submissions, streamlining the requirements for incorporation by reference of prior filed applications, and clarifying the qualifications for claiming small entity status for purposes of paying reduced patent fees. See, notice in the Federal Register, September 12, 2003, Vol. 68, No. 177, at Pages 53815 - 53859.

Deadline to submit comments to the Federal Communications Commission (FCC) in response to its Notice of Inquiry (NOI) regarding the impact that communications towers may have on migratory birds. See, notice in the Federal Register, September 12, 2003, Vol. 68, No. 177, at Pages 53696 - 53702. This is Docket No. WT 03-187, and FCC 03-205. The FCC adopted this NOI on August 8, 2003, and released it on August 20, 2003. See also, story titled "FCC Release NOI On Communications Towers and Migratory Birds" in TLJ Daily E-Mail Alert No. 723, August 21, 2003.

Thursday, November 13

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

9:00 AM - 12:00 NOON. The Telecommunications Service Priority (TSP) System Oversight Committee will meet. See, notice in the Federal Register, October 10, 2003, Vol. 68, No. 197, at Page 58725. Location: 2nd floor conference room, National Communications System (NCS), 701 South Courthouse Road, Arlington, VA.

9:00 AM - 3:45 PM. The National Institute of Standards and Technology's (NIST) Advanced Technology Program Advisory Committee hold a partially closed meeting. See, notice in the Federal Register, October 27, 2003, Vol. 68, No. 207, at Page 61189. Location: NIST, Administration Building, Employees' Lounge, Gaithersburg, MD.

9:30 AM. The Senate Commerce Committee will hold a hearing to examine the General Accounting Office's (GAO) study [94 pages in PDF] titled "Telecommunications: Issues Related to Competition and Subscriber Rates in the Cable Television Industry". The witnesses will be Mark Goldstein (GAO), James Robbins (P/CEO of Cox Communications), George Bodenheimer (President of ESPN and ABC Sports), Gene Kimmelman (Consumers Union), Robert Sachs (P/CEO of the NCTA), Rodger Johnson (P/CEO of Knology). See, story titled "GAO Releases Study on Cable Industry", in TLJ Daily E-Mail Alert No. 766, October 27, 2003. Press contact: Rebecca Hanks (McCain) at 202 224-2670 or Andy Davis (Hollings) at 202 224-6654. Location: Room 253, Russell Building.

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

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in Adams Comm Corp v. FCC, No. 02-1232. Judges Randolph, Roberts and Williams will preside. Location: Courtroom 20, 333 Constitution Ave. NW.

10:00 AM. The Internal Revenue Service (IRS) will hold a hearing regarding its notice of proposed rulemaking (NPRM) regarding computation and allocation of the credit for increasing research activities for members of a controlled group of corporations or a group of trades or businesses under common control. The rules implement the research and development tax credit codified at 26 U.S.C. § 41. Location: IRS Auditorium, 7th Floor, 1111 Constitution Ave., NW. See, notice in the Federal Register, July 29, 2003, Vol. 68, No. 145, at Pages 44499 - 44506.

2:00 - 3:00 PM. The Heritage Foundation will host an event titled "Beyond Do-Not-Call: The FTC Agenda". The speakers will be Timothy Muris, Chairman of the Federal Trade Commission (FTC), and James Gattuso of the Heritage Foundation. Refreshments will be provided. See, notice. Location: Heritage Foundation, Lehrman Auditorium, 214 Massachusetts Ave., NE.

6:00 - 9:15 PM. The D.C. Bar Association will host a CLE course titled "How to Litigate an Intellectual Property Case Series: Part 1 How to Litigate a Trademark Case". Prices vary. For more information, call 202 626-3488. Location: D.C. Bar Conference Center, 1250 H Street NW, B-1 level.

Friday, November 14

RESCHEDULED FOR NOVEMBER 20. 9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in CA Metro Mobile Comm v. FCC, No. 02-1370. Judges Sentelle, Henderson and Garland will preside. Location: 333 Constitution Ave. NW.

12:00 NOON - 2:00 PM. The Progress and Freedom Foundation (PFF) will host a panel discussion titled "Copyright Protection and the Broadcast Flag". The speakers will be Rick Chessen (Chair of the FCC's Digital Television Task Force), Mike Godwin (Public Knowledge), William Adkinson (PFF), Robert Atkinson (Progressive Policy Institute), and James DeLong (PFF). There will be a buffet lunch. See, notice [PDF]. Location: Room 1539, Longworth Building.

12:30 PM. The Federal Communications Bar Association's (FCBA) Legislation Committee will host a brown bag lunch. The topic will be the "The Northpoint Issue: Will Congress Provide Spectrum Without an Auction? The View From the Hill". For more information, contact Lee Carosi at 202 224-0990 or Location: Wiley Rein & Fielding, 1750 K Street Building, 5th Floor Conference Room.

Monday, November 17

11:00 - 12:30 PM. The Heritage Foundation will host an event titled "Preserving Privacy, Providing Security: Information And Technology At The DHS". The speakers will be Nuala Kelly (Chief Privacy Officer of the Department of Homeland Security) and Paul Rosenzweig (Heritage Foundation). See, notice. Location: Heritage Foundation, Lehrman Auditorium, 214 Massachusetts Ave., NE.

Deadline to submit written comments to the Trade Policy Staff Committee (TPSC) regarding 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.

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