8/2. The U.S. Court of Appeals (4thCir) issued its divided opinion [61 pages in PDF] in Verizon Maryland v. Global Naps, a case regarding interconnection agreements, reciprocal compensation, state public utilities commissions, and federal jurisdiction.

Back in 1999, Verizon's Maryland subsidiary (then Bell Atlantic Maryland) filed a complaint in U.S. District Court (DMd) against the Maryland Public Service Commission (Maryland PSC) seeking review of the Maryland PSC's order that required Verizon to pay reciprocal compensation to competing local carriers for delivering ISP-bound traffic.

The present opinion is the second opinion of this Appeals Court in this case. The Supreme Court issued its opinion [22 pages in PDF] on May 20, 2002 reversing the previous opinion of the Court of Appeals (240 F. 3d 279), and remanding. See, story titled "Supreme Court Rules on Federal Jurisdiction In Suits Against State PUCs" in TLJ Daily E-Mail Alert No. 435, May 21, 2002. This was Verizon Maryland v. Public Service Commission of Maryland.

On remand, the District Court held that there is no federal question jurisdiction over a local exchange carrier's (in this case Verizon) claim that a state public utility commission (in this case the Maryland PSC) misinterpreted the provisions of an interconnection agreement that are based on federal law. The Court of Appeals reversed this holding, concluding that there is federal question jurisdiction.

The Appeals Court wrote that "because (1) Verizon’s complaint alleges that the PSC misinterpreted interconnection agreement provisions that incorporate federal law, (2) the agreement interpreted is federally mandated, (3) the contractual duty at issue is imposed by federal law, and (4) the purpose of the 1996 Act is best served by allowing review of the PSC 's order in the district court, we hold that Verizon’s contract claim in Count I raises a substantial question of federal law."

The District Court also held that the Maryland PSC had authority under federal law to impose reciprocal compensation terms in arbitration proceedings. The Court of Appeals affirmed this holding.

The Court of Appeals also rejected the Maryland Commissioners' argument on appeal that the regulatory scheme of the Telecommunications Act of 1996 violates the 10th Amendment of the Constitution, which provides that "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the Sates respectively, or to the people."

The Appeals Court remanded the case to the District Court for further proceedings on Verizon's contract misinterpretation claim.

Judge Michael wrote the opinion of the Court, in which Judge Gregory joined. Judge Niemeyer wrote a lengthy opinion dissenting in part.

This case is Verizon Maryland, Inc. v. Global Naps, Inc. et al., Nos. 03-1448 and 03-1449, appeals from the U.S. District Court for the District of Maryland, D.C. No. CA-99-2061-S, Judge Frederic Smalkin presiding.

8/2. The National Commission on Terrorist Attacks Upon the United States, which is also known as the 9-11 Commission, released its report on July 28.

National Intelligence Director. One of the recommendations of this report is the creation of a National Intelligence Director.

On August 2, 2002, President Bush announced in a speech that "Today I'm asking Congress to create the position of a National Intelligence Director. That person -- the person in that office will be appointed by the President with the advice and consent of the Senate, and will serve at the pleasure of the President. The National Intelligence Director will serve as the President's principal intelligence advisor and will oversee and coordinate the foreign and domestic activities of the intelligence committee. Under this reorganization, the CIA will be managed by a separate Director. The National Intelligence Director will assume the broader responsibility of leading the intelligence community across our government. "

Bush also stated that "Today, I also announce that we will establish a National Counter-Terrorism Center. This new center will build on the analytical work, the really good analytical work of the Terrorist Threat Integration Center, and will become our government's knowledge bank for information about known and suspected terrorists. The new center will coordinate and monitor counter-terrorism plans and activities of all government agencies and departments to ensure effective joint action, and that our efforts are unified in priority and purpose. The center will also be responsible for preparing the daily terrorism threat report for the President and senior officials."

He added that "The Director of the National Counterterrorism Center will report to the National Intelligence Director, once that position is created. Until then, the center will report to the Director of the CIA."

Recommendations Related to Information Technologies. Several of the recommendations of the 9-11 Commission involve use of information technologies, as for example, in the use of computer databases in the Computer Assisted Passenger Prescreening System (CAPPS).

The report recommends that "Improved use of ``no-fly´´ and ``automatic selectee´´ lists should not be delayed while the argument about a successor to CAPPS continues. This screening function should be performed by the TSA, and it should utilize the larger set of watchlists maintained by the federal government. Air carriers should be required to supply the information needed to test and implement this new system."

The report also recommends a broader network of screening. It states that "The U.S. border security system should be integrated into a larger network of screening points that includes our transportation system and access to vital facilities, such as nuclear reactors." It also recommends "Extending those standards among other governments".

The report also recommends that the DHS complete "a biometric entry-exit screening system, including a single system for speeding qualified travelers. It should be integrated with the system that provides benefits to foreigners seeking to stay in the United States. Linking biometric passports to good data systems and decisionmaking is a fundamental goal. No one can hide his or her debt by acquiring a credit card with a slightly different name. Yet today, a terrorist can defeat the link to electronic records by tossing away an old passport and slightly altering the name in the new one."

The report also recommends that "The federal government should set standards for the issuance of birth certificates and sources of identification, such as drivers licenses."

Finally, the report recommends allocating more spectrum for use by public safety entities. It states that "Congress should support pending legislation which provides for the expedited and increased assignment of radio spectrum for public safety purposes. Furthermore, high-risk urban areas such as New York City and Washington, D.C., should establish signal corps units to ensure communications connectivity between and among civilian authorities, local first responders, and the National Guard. Federal funding of such units should be given high priority by Congress."

Congressional Hearings. Several Congressional Committees have scheduled hearings. On August 3, the Senate Governmental Affairs Committee will hold a hearing on the 9/11 Commission's recommendation to establish a National Counterterrorism Center. Also on August 3, the House Government Reform Committee will hold a hearing titled "Moving from `Need to Know´ to `Need to Share´: A Review of the 9-11 Commission’s Recommendations".

On August 23 the House Financial Services Committee will hold a hearing titled "The 9/11 Commission Report: Identifying and Preventing Terrorist Financing".

In addition, the Senate Commerce Committee scheduled for August 5, and then postponed, a hearing on the 9/11 Commission's recommendations regarding transportation security. It has not yet set a new date.

7/22. Rep. Phil Crane (R-IL), Rep. Michael Rogers (R-MI), and Rep. Sander Levin (D-MI) introduced HR 4931, the "Intelligent Vehicle Highway Safety Act of 2004". This bill would amend the Internal Revenue Code to provide a limited itemized deduction for expenditures for intelligent vehicle technology systems.

Rep. Crane (at right) and Rep. Levin are both senior members of the House Ways and Means Committee, which has jurisdiction over this bill. This bill would give a tax break to individuals and companies that purchase cars and other vehicles with certain spectrum based or information technologies. It primarily covers safety related technologies, but also covers certain national security, property protection and inventory management technologies.

The bill would provide a deduction of up to $1,000 for purchasing vehicles that include "a positional communications and tracking device", or a technology that "assists in verification of driver identity, such as biometric identifiers and electronic ignition locks".

The bill would also cover "a device that warns or informs a driver of driving conditions or location, such as collision warning systems, automated collision notification systems, vehicle rollover warning systems, lane departure warning systems, and fatigue management systems". It would also cover "a roll stability control system".

The bill would also cover "an electronic seal". The bill does not define this term, but it may pertain to radio frequency devices affixed to containers that track their movement past reader devices, and provide information as to whether or not tampering has occurred.

While the bill clearly covers certain vehicular safety technologies, such as vehicle collision avoidance technologies, it is not clear that it would cover certain other public safety technologies, such as those that facilitate emergency vehicle traffic signal preemption and traffic management.

The bill states that its purpose is to "encourage and accelerate the nationwide production, retail sale, and consumer use of new commercial and consumer motor vehicles with intelligent vehicle technology systems".

This bill would use tax policy to promote these technologies. In addition, the Congress has appropriated money for the Department of Transportation (DOT) to develop and promote intelligent transportation systems (ITS). See, the DOT's ITS website.

Moreover, the Federal Communications Commission (FCC) has long been involved in promulgating rules pertaining to the spectrum based aspects of these technologies.

The FCC initiated a rulemaking proceeding in 1998. It adopted its Report and Order on October 21, 1999 (which it released on October 22) allocating 75 megahertz of spectrum at 5.850-5.925 GHz to the mobile service for use by Dedicated Short Range Communications (DSRC) systems operating in the Intelligent Transportation System (ITS) radio service. However, this R&O did not adopt licensing and service rules or spectrum channelization plans. This R&O is FCC 99-305 in ET Docket 98-95 and RM-9096. See, also, the FCC's Office of Engineering and Technology's (OET) ITS webpage.

The FCC adopted another NPRM on November 7, 2002. See, story titled "FCC Adopts Intelligent Transportation Systems NPRM" in TLJ Daily E-Mail Alert No. 546, November 11, 2002. The FCC adopted its latest ITS Report and Order [78 pages in PDF] on December 17, 2003. (However, it did not release this R&O until February 10, 2004.) This R&O is FCC 03-324 in WT Docket No. 01-90, ET Docket 98-95 and RM-9096

This R&O adopted licensing and service rules for DSRC operating in the ITS service. It also adopted the interoperability standard know as ASTM E2213-02 or ASTM-DSRC. It also made possible licensing in the 5.9 GHz band for both public safety and nonpublic safety uses. See also, separate statement [PDF] of Chairman Michael Powell, and statement [PDF] of Commissioner Jonathan Adelstein.

7/22. Rep. Darlene Hooley (D-OR) introduced HR 4955, the "Children's Listbroker Privacy Act" a bill to restrict the sale of personal information about children.

This is the House version of S 2160, also titled the "Children's Listbroker Privacy Act", which was introduced by Sen. Ron Wyden (D-OR) on March 3, 2004. See, story titled "Senators Introduce Children's Listbroker Privacy Act" in TLJ Daily E-Mail Alert No. 851, March 8, 2004. That bill was referred to the Senate Commerce Committee, of which Sen. Wyden is a member. The Committee has taken no action on the bill.

The bill provides that, subject to exceptions, "It is unlawful -- (1) to sell personal information about an individual the seller knows to be a child; (2) to purchase personal information about an individual identified by the seller as a child, for the purpose of marketing to that child ..."

The bill also creates exceptions to the general rule where there is parental consent, and where the purchaser of the information certifies in writing to the seller that the information will not be used for marketing, and for what purpose the information will be used.

The bill would give civil enforcement authority to the Federal Trade Commission (FTC) under the unfair or deceptive act or practice provision of the FTC Act. The bill would also give the states authority to bring civil actions for damages.

HR 4955 was referred to the House Commerce Committee. There are no original cosponsors. The Senate bill is cosponsored by Sen. Lisa Murkowski (R-AK) and Sen. Ted Stevens (R-AK).

The House and Senate will not meet from July 26 through September 6.

10:00 AM. The Senate Governmental Affairs Committee (SGAC) will hold a hearing on the National Commission on Terrorist Attacks Upon the United States's (9-11 Commission) recommendation to establish a National Counterterrorism Center. See, 9-11 Commission report, and SGAC notice. Location: Room 216, Hart Building.

10:00 AM. The House Government Reform Committee will hold a hearing titled "Moving from `Need to Know’ to `Need to Share´: A Review of the 9-11 Commission’s Recommendations". See, notice. For more information, contact Drew Crockett at 202 225-5074. Location: Room 2154, Rayburn Building.

9:30 AM. The Federal Communications Commission (FCC) will hold a meeting. The agenda [PDF] includes The agenda includes a Notice of Proposed Rulemaking (NPRM) and Declaratory Ruling (DR) regarding the Department of Justice's (DOJ) request that the FCC administratively amend the CALEA statute to cover information services, such as VOIP. It also includes consideration of various applications for certification of digital output protection technologies and recording methods under the FCC's broadcast flag rule. The event will be webcast. Location: FCC, 445 12th Street, SW, Room TW-C05 (Commission Meeting Room).

POSTPONED. 9:30 AM. The Senate Commerce Committee (SCC) will hold a hearing on the National Commission on Terrorist Attacks Upon the United States's (9-11 Commission) recommendations regarding transportation security. See, 9-11 Commission report and SCC notice. Press contact: Rebecca Fisher at 202 224-2670. Location: Room 253, Russell Building.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Sony Electronics, Inc., et al. v. Soundview Technologies, Inc., a patent infringement and antitrust case involving V-Chip parental television control technology. This is App. Ct. No. 04-1057, an appeal from the U.S. District Court for the District of Connecticut, No. 3:00cv754(JBA), Judge Janet Arterton presiding. See, opinion published at 157 F. Supp. 2d 180 (2001), opinion granting summary judgment of non-infringement in favor of Sony and other television manufacturers, published at 225 F. Supp. 2d 164 (2002), and August 28, 2003 opinion [8 pages in PDF] granting plaintiffs' motion for summary judgment on Soundview's antitrust and unfair trade practices counterclaims. Location: Courtroom 402, 717 Madison Place, NW.

2:30 PM. The U.S. Court of Appeals (FedCir) will hear oral argument in Irdeto Access v. Echostar, No. 04-1154. Location: Courtroom 402, 717 Madison Place, NW.

1:00 - 4:00 PM. The DC Bar Association will host a continuing legal education (CLE) program titled "USA PATRIOT Act Primer". The speakers will include Sharie Brown (Foley & Lardner). See, notice. Prices vary from $80 to $95. For more information, call 202 626-3488. Location: D.C. Bar Conference Center, B-1 Level, 1250 H Street, NW.

EXTENDED TO OCTOBER 8. Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its public notice (DA 04-1690) requesting public comments on constitutionally permissible ways for the FCC to identify and eliminate market entry barriers for small telecommunications businesses and to further opportunities in the allocation of spectrum based services for small businesses and businesses owned by women and minorities. See, notice in the Federal Register, June 22, 2004, Vol. 69, No. 119, at Pages 34672 - 34673. See also, notice of extension [PDF].

Deadline to submit comments to the Federal Communications Commission (FCC) in response to its notice of proposed rulemaking (NPRM) regarding the process for designation of eligible telecommunications carriers (ETCs) and the FCC's rules regarding high-cost universal service support. This NPRM is FCC 04-127 in Docket No. 96-45. See, notice in the Federal Register, July 7, 2004, Vol. 69, No. 129, at Pages 40839 - 40843.

Deadline to submit comments to the Federal Communications Commission (FCC) in response to its notice of proposed rulemaking (NPRM) regarding the rechannelization of portions of the 17.7-19.7 GHz band. This NPRM is FCC 04-77 in WT Docket No. 04-143. See, notice in the Federal Register, July 7, 2004, Vol. 69, No. 129, at Pages 40843 - 40850.

Deadline to submit comments to the Office of the U.S. Trade Representative (USTR) regarding its Special 301 out of cycle review of Israel and other nations. Section 182 of the Trade Act of 1974, which is codified at 19 U.S.C. § 2242, requires the USTR to identify countries that deny adequate and effective protection of intellectual property rights or deny fair and equitable market access to U.S. persons who rely on intellectual property protection. This is also referred to as the Special 301 provision. See, notice in the Federal Register, July 13, 2004, Vol. 69, No. 133, at Pages 42077-42078.

10:00 AM. 2:30 PM. The U.S. Court of Appeals (FedCir) will hear oral argument in Business Object v. Microstrategy, No. 04-1009. Location: Courtroom 203, 717 Madison Place, NW.

Extended deadline to submit comments to the Federal Communications Commission (FCC) regarding its proceeding titled "In the Matter of Review of the Commission's Broadcast and Cable Equal Employment Opportunity Rules and Policies". This is MM Docket No. 98-204. See, notice of extension [PDF].

9:30 AM - 12:00 NOON. The Federal Communications Commission's (FCC) WRC 07 Advisory Committee, Informal Working Group 4: Broadcasting and Amateur Issues. See, notice [PDF]. Location: Shaw Pittman, 2300 N St., NW.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its further notice of proposed rulemaking (FNPRM) regarding Aviation Radio Service. This FNPRM is FCC 03-238 in WT Docket No. 01-289. See, notice in the Federal Register, April 12, 2004, Vol. 69, No. 70, at Pages 19140 - 19147.

8/2. Federal Trade Commission (FTC) Chairman Timothy Muris released a statement. He wrote that "I have resigned as Chairman of the Federal Trade Commission, effective August 15. By announcing his intention to appoint Deborah P. Majoras as an FTC Commissioner and the next Chairman, the President ensures the FTC’s ability to continue its strong record of competition and consumer protection achievements."

President Bush gave both Majoras and Liebowitz recess appointments on July 30, 2004, after Sen. Ron Wyden (D-OR) successfully delayed Senate consideration of the nominations. See, story titled "Muris Resigns, Majoras Nominated" in TLJ Daily E-Mail Alert No. 896, May 12, 2004; story titled "Senate Commerce Committee Holds Hearing on FTC Nominees" in TLJ Daily E-Mail Alert No. 910, June 3, 2004; and story titled "Bush Gives Majoras and Liebowitz Recess Appointments to the FTC" in TLJ Daily E-Mail Alert No. 950, August 2, 2004.

Muris added that "Debbie is a highly talented and experienced lawyer, and will be an excellent Chairman. I am confident that she will provide continuity to the FTC’s important missions. Additionally, the President has announced his intention to appoint Jonathan Leibowitz as a Commissioner. Jon brings many talents to the FTC, including a legislative and antitrust background. He will be an impressive Commissioner."

7/31. 146 member countries of the World Trade Organization (WTO) adopted a document titled "Draft General Council Decision of 31 July 2004 " that pertains to the Doha round of trade negotiations. It states that "The General Council reaffirms the Ministerial Declarations and Decisions adopted at Doha and the full commitment of all Members to give effect to them. The Council emphasizes Members' resolve to complete the Doha Work Programme fully and to conclude successfully the negotiations launched at Doha. " See also, statement by Sen. Charles Grassley (R-IA), release of the EU, statement by EU Trade Commissioner Pascal Lamy, and US Chamber of Commerce release.

7/30. Kenneth Rice plead guilty in U.S. District Court (SDTex) to one count of securities fraud in violation of 15 U.S.C. §§ 78j(b) and 78(ff) and 15 C.F.R. §§ 240.10b-5 and 240.10b5-1. Rice was previously CEO of Enron Broadband Services (EBS), a unit the former Enron Corp. See, U.S. Department of Justice (DOJ) release.

8/2. The U.S. Court of Appeals (9thCir) issued its opinion [23 pages in PDF] in Focus Media v. NBC, an appeal in an involuntary Chapter 7 bankruptcy case involving a company that booked and paid for commercial spots from television and radio stations on behalf of advertising clients. The Appeals Court affirmed the District Court. This case is Focus Media, Inc. v. National Broadcasting Company, et al., No. 03-55808, an appeal from the U.S. District Court for the Central District of California, D.C. No. CV-01-01146-AHS.

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