9/9. Sen. Chris Dodd (D-CT) and Sen. Joe Lieberman (D-CT) introduced S 2785, the "Telecommuter Tax Fairness Act of 2004". This bill would add a new section to Title 4 titled "Prohibition on double taxation of telecommuters and others who work at home".

This is not an amendment to the Internal Revenue Code (Title 26). Rather, this bill limits the ability of states to impose state income taxes upon individuals who are not present in their states.

The issue arises in the context of teleworkers, who reside and work in one state, but are employed by an employer located in another state. Tax collectors in both states may seek to collect state income taxes on such workers, thus subjecting them to double taxation, and providing both workers and employers a disincentive to develop teleworking arrangements.

This bill would provide that "In applying its income tax laws to the salary of a nonresident individual, a State may only deem such nonresident individual to be present in or working in such State for any period of time if such nonresident individual is physically present in such State for such period and such State may not impose nonresident income taxes on such salary with respect to any period of time when such nonresident individual is physically present in another State."

Sen. Dodd (at right) stated that this bill "will put an end to an outdated legal doctrine that unfairly penalizes thousands of workers in Connecticut and in other States throughout the country whose only offense is that they sometimes work from home." See, Congressional Record, September 9, 2004, at pages S9037-8.

He said that "Technology has changed the way business is conducted in America. With the use of cell phones, lap-top computers, email, the Internet, mobile networking, and many other telecommunication advancements of the 21st century, Americans have a greater flexibility in where they can work without compromising productivity. Many citizens now choose to work from home or alternative offices when their physical presence is not necessary at their primary place of work."

Sen. Dodd also addressed the benefits of teleworking. "Telecommuting provides enormous benefits for businesses, families, and communities. It helps businesses lower costs and raise worker productivity. It reduces congestion on our roads and rails, and in so doing it lowers pollution. It helps workers better manage the demands of work and family."

The suburbs of Sen. Dodd's state, Connecticut, lie outside of New York City. Many Connecticut residents telework for companies in New York. The state of New York requires that these workers pay New York income taxes, through its "convenience of the employer" rule.

Sen. Dodd stated that "New York's ``convenience of the employer´´ rule requires that by working for a New York employer, all income earned from that employer must be declared in New York so long as the worker ``could´´ perform his or her duties in New York."

Hence, Sen. Dodd's bill would also provide that "For purposes of determining physical presence, no State may deem a nonresident individual to be present in or working in such State on the grounds that such nonresident individual is present at or working at home for the nonresident individual's convenience."

9/9. Sen. Russ Feingold (D-WI) introduced S 2783, the "Computer Trespass Clarification Act of 2004", a bill to amend 18 U.S.C. §§ 2510(21)(B) and 2511(2)(i). Both of these are new provisions that were added by the PATRIOT Act.

USA PATRIOT Act is an acronym for "Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001". It was passed quickly after the terrorist attacks of September 11, 2001 by the 107th Congress as HR 3162. It became Public Law 107-56 on October 26, 2001. § 217 of the PATRIOT Act pertains to "Interception of computer trespasser communications".

§ 217 amended 18 U.S.C. § 2510 by adding § 2510(21), which is a definition of "computer trespasser". It also amended 18 U.S.C. § 2511 by adding § 2511(2)(i), which provides that it is permissible for law enforcement to intercept wire or electronic communications of a computer trespasser transmitted to, through, or from the protected computer, if, among other requirements, the owner or operator of the protected computer authorizes the interception.

It is one of the sections of the PATRIOT Act that the Act provides "shall cease to have effect on December 31, 2005". That is, it is scheduled to sunset.

Sen. Feingold (at right) argues that the underlying purpose of § 217 is good, but that it was drafted too broadly, and needs to be revised. His argument is that while it was intended to enable owners of computer systems to call in law enforcement assistance to help defend against hacking and denial of service attacks, it could also subject people who use computers in libraries, internet cafes, and hotels to government surveillance.

§ 2510 contains definitions. Subsection 21 defines "computer trespasser". Currently, it "(A) means a person who accesses a protected computer without authorization and thus has no reasonable expectation of privacy in any communication transmitted to, through, or from the protected computer; and (B) does not include a person known by the owner or operator of the protected computer to have an existing contractual relationship with the owner or operator of the protected computer for access to all or part of the protected computer."

§ 2511(2)(i) currently provides that "It shall not be unlawful under this chapter for a person acting under color of law to intercept the wire or electronic communications of a computer trespasser transmitted to, through, or from the protected computer, if -- (I) the owner or operator of the protected computer authorizes the interception of the computer trespasser's communications on the protected computer; (II) the person acting under color of law is lawfully engaged in an investigation; (III) the person acting under color of law has reasonable grounds to believe that the contents of the computer trespasser's communications will be relevant to the investigation; and (IV) such interception does not acquire communications other than those transmitted to or from the computer trespasser."

Sen. Feingold stated in the Senate that § 217 of the PATRIOT Act "was designed to permit law enforcement to assist computer owners who are subject to denial of service attacks or other episodes of hacking."

He said that "I strongly supported the goal of giving computer system owners the ability to call in law enforcement to help defend themselves against hacking. Including such a provision in the PATRIOT Act made a lot of sense. Unfortunately, the drafters of the provision made it much broader than necessary, and refused to amend it at the time we debated the bill in 2001. As a result, the law now gives the government the authority to intercept communications by people using computers owned by others as long as they have allegedly engaged in some unauthorized activity on the computer, and the owner gives permission for the computer to be monitored."

First, Sen. Feingold's bill would revise § 2510(21)(B) to read as follows: "(B) does not include a person known by the owner or operator of the protected computer to have an existing contractual or other relationship with the owner or operator of the protected computer for access permitting access to all or part of the protected computer." (Words highlighted in bold red are added by S 2783, while the crossed out words are deleted by S 2783.)

Sen. Feingold explained that "Only people who have a ``contractual relationship´´ with the owner allowing the use of a computer are exempt from the definition of a computer trespasser under section 217 of the PATRIOT Act. Many people -- for example, college students, patrons of libraries, Internet cafes or airport business lounges, and guests at hotels -- use computers owned by others with permission, but without a contractual relationship. They could end up being the subject of government snooping if the owner of the computer gives permission to law enforcement."

"My bill would clarify that someone who has been given permission to use a computer by the owner or operator of that computer is not a computer trespasser." § 217, said Sen. Feingold, "was not intended to give the government the opportunity to engage in widespread surveillance of computer users without a warrant."

Sen. Feingold also conceded that "We don't know, of course, whether such surveillance is taking place."

Sen. Feingold's bill would also amend § 2511(2)(i) to provide as follows: "It shall not be unlawful under this chapter for a person acting under color of law to intercept the wire or electronic communications of a computer trespasser transmitted to, through, or from the protected computer, if -- (I) the owner or operator of the protected computer is attempting to respond to communications activity that threatens the integrity or operation of such computer and requests assistance to protect rights and property of the owner or operator, and authorizes the interception of the computer trespasser's communications on the protected computer; (II) the person acting under color of law is lawfully engaged in an investigation; (III) the person acting under color of law has reasonable grounds to believe that the contents of the computer trespasser's communications will be relevant to the investigation; and (IV) such interception ceases as soon as the communications sought are obtained or after 96 hours, whichever is earlier, unless an interception order is obtained under this chapter, and does not acquire communications other than those transmitted to or from the computer trespasser." (Words highlighted in bold red are added by S 2783.)

Sen. Feingold explained that his bill "would modify the computer trespass provision to protect against abuse, while still maintaining its usefulness in cases of denial of service attacks and other forms of hacking. First, it would require that the owner or operator of the protected computer authorizing the interception has been subject to ``communications activity that threatens the integrity or operation of such computer.´´ In other words, the owner has to be the target of some kind of hacking. Second, the bill would clarify that to be excluded from the definition of computer trespasser, a person who has permission to use a computer does not need to have a contractual relationship granting that permission. Third, the bill limits the length of warrant-less surveillance to 96 hours."

Finally, the bill contains a section requiring the DOJ to submit annual reports to the Congress regarding the use of § 217.

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

9/13. The Senate Judiciary Committee's Subcommittee on Terrorism, Technology and Homeland Security held a hearing on S 2679, the "Tools to Fight Terrorism Act of 2004" or TFTA.

Sen. Jon Kyl (R-AZ) is the Chairman of this Subcommittee. He introduced S 2679 on July 16, 2004. This bill is also cosponsored by seven Republican Senators: Saxby Chambliss (R-GA), Don Nickles (R-OK), Bill Frist (R-TN), Mike DeWine (R-OH), John Cornyn (R-TX), Jeff Sessions (R-AL), and Mitch McConnell (R-KY).

This is a long and wide ranging bill, that incorporates many provisions that have previously been introduced as stand alone bills. It contains provisions pertaining to seaport security, information sharing, terrorism hoaxes, and activities associated with shoulder fired missiles, radiological bombs, and the smallpox virus.

This bill is not an information technology or electronic surveillance bill. However, some of its provisions would affect surveillance of electronic communications and access to electronic data.

For example, it would amend 18 U.S.C. § 2516(1), which pertains to authorization for the interception of wire, oral, or electronic communications, to expand the list of predicate offenses to include certain terrorism related crimes. For example, the bill creates a new class of crimes for activities associated with the variola virus (which is also known as smallpox). The bill then adds these crimes to the list of predicate offenses for the issuance of a wiretap order.

The bill also contains a section, which is based upon S 113 and S 123, that would make Foreign Intelligence Surveillance Act (FISA) orders available for suspected lone wolf terrorists. The FISA currently only applies to foreign powers, and agents of foreign powers, including international terrorists. It does not apply to individuals acting alone.

The significance of creating a lone wolf provision is that the FISA provides for the issuance of an order on a lower standard than is required for a Title III warrant, which is used in ordinary criminal investigations. There is also greater secrecy associated with FISA investigations. This section of the bill would continue the blurring of the lines between electronic surveillance conducted under the FISA and Title III.

Daniel Bryant (Assistant Attorney General in charge of the Department of Justice's Office of Legal Policy) and Barry Sabin (Chief of the DOJ's Criminal Division's Counterterrorism Section) submitted prepared testimony in which they stated that "The new tools provided by the TFTA will prevent attacks and will save American lives."

See also, prepared testimony of Jonathan Turley, a professor at George Washington University School of Law, opening statement of Sen. Kyl, and opening statement of Sen. Patrick Leahy (D-VT).

9/9. The Federal Communications Commission (FCC) released its Fourth Report [60 pages in PDF] to the Congress on the availability of advanced telecommunications capability in the United States. (The FCC published this in a graphics intensive document, presuming that its readers have broadband connections.)

The report finds that "that the overall goal of section 706 is being met, and that advanced telecommunications capability is indeed being deployed on a reasonable and timely basis to all Americans."

This annual report is required by Section 706 of the Telecommunications Act of 1996, which is codified at 47 U.S.C. § 157 notes. It provides, in part, that the FCC shall regularly "initiate a notice of inquiry concerning the availability of advanced telecommunications capability to all Americans (including, in particular, elementary and secondary schools and classrooms) ... In the inquiry, the Commission shall determine whether advanced telecommunications capability is being deployed to all Americans in a reasonable and timely fashion. If the Commission's determination is negative, it shall take immediate action to accelerate deployment of such capability by removing barriers to infrastructure investment and by promoting competition in the telecommunications market." (Parentheses in original.)

While Section 706 addresses "availability", the report focuses on "subscribership". The report states that "Specifically, subscribership to high-speed lines -- defined as 200 kilobits per second (kbps) or greater transmission speed in at least one direction -- has almost tripled from 9.6 million in June 2001 to 28.2 million in December 2003, and subscribership to advanced services (200 kbps or greater transmission speed in both directions) more than tripled in this same period, from 5.9 million lines to 20.3 million lines."

FCC Chairman Michael Powell wrote in a separate statement [PDF] that "Innovative entrepreneurs are replacing yesterday’s single-purpose networks with different types of high-speed, full-service digital networks, using such technologies as Wi-Fi, fiber-to-the-home, broadband over power lines, and satellite. By making licensed and unlicensed spectrum available for wireless broadband uses, we have seen an explosion of wireless access points using technologies (such as EvDO and WiMax) that allow unfettered Internet access around the country."

Powell stated that other FCC actions have also contributed to the growth in broadband subscriptions. He said that the FCC "has taken key steps to promote broadband deployment. We removed unbundling requirements on newly deployed fiber-to-the-home, where there is competition from cable, which clears the way for telephone companies to deploy infrastructure to serve the broadband and video needs of the 21st century. On my travels across the country, I continue to be amazed by the new services designed for rural Americans. Our efforts to unlock the potential of the rural healthcare program by expanding the Commission's eligibility criteria are generating results. In the past year, I witnessed the transformative potential of telemedicine. Since the issuance of our last Report, the Commission has adopted a variety of measures to introduce regulatory flexibility for rural licenses to increase wireless access to consumers. The Commission also has proposed amendments to make efficient use of the 3650 MHz band, which may effectively support telemedicine in rural or underserved areas as well as on Native American Tribal Lands. We will continue our ongoing program of on-site forums for exploring how best to make affordable broadband access available to rural America."

Commissioner Michael Copps disagreed. He wrote in a separate statement [PDF] that "Countries like Japan, Korea, and Canada have left us far behind. This is unacceptable." He continued that "the United States is ranked eleventh in the world in broadband penetration! This Report somehow finds that this is acceptable, and that our efforts are resulting in timely deployment. I think our efforts are insufficient and that broadband deployment is insufficient, so I dissent to this Report."

Copps did not identify what actions the FCC should take to promote broadband. He advocated "study". He also said that "We should look at what universal service means in the IP age."

Jonathan Adelstein also wrote a dissenting statement [PDF]. Like Copps, he focused on the U.S. position relative to some other countries, rather than on the growth within the U.S.

See also, separate statement [PDF] of Kathleen Abernathy and separate statement [PDF] of Kevin Martin. See, also FCC release [PDF]. This report is FCC No. 04-208 in GN Docket No. 04-54.

9/9. The Federal Communications Commission (FCC) announced, but did not release, its Ninth Annual Report to Congress on the state of competition in Commercial Mobile Radio Services (CMRS). The FCC issued a release [2 pages in PDF] describing this item, and presentation slides [6 pages in PDF].

The FCC release states that the report concludes that "there is effective competition in the CMRS marketplace, based on the analysis of several measures of competition, including: the number of carriers competing in an area, the extent of service deployment, prices, technological improvements and product innovations, subscriber growth, usage patterns, churn, and investment."

The FCC release states that "97 percent of the total U.S. population lives in a county with access to 3 or more different operators offering mobile telephone service, up from 95 percent in the previous year, and up from 88 percent in 2000".

The release also states that the report finds that "competitive pressures continue to compel carriers to introduce innovative pricing plans and service offerings, and to match the pricing and service innovations introduced by rival carriers."

Commissioner Michael Copps wrote in a separate statement [PDF] that "just about every consumer I meet complains that wireless bills are bewilderingly confusing; that hidden and expensive line items magically appear on their bills that they weren’t told about when comparing prices; and that the service maps that carriers provide don’t allow them to determine where they will get service and where they won’t. I also hear from small and rural carriers that the state of the roaming market is hardly as competitive as described in the Report, with large carriers allegedly imposing upon them unreasonable prices and also instituting new call blocking technologies that deny consumers the ability to roam in order to avoid compensating other carriers."

"We need to be monitoring and studying these developments vigilantly, especially as consolidation creeps into the industry," said Copps.

Steve Largent, P/CEO of the Cellular Telecommunications and Internet Association (CTIA), stated in a release that "The industry will continue to operate successfully in this competitive market in order to serve consumers well, as long as regulators continue to recognize our success is based on market forces, not costly government regulations. Burdensome government regulations not only curtail competition and choice for consumers but also can drain necessary funds away from other, more pressing consumer priorities such as improved coverage and fewer dropped calls. Wireless has proven time and time again that market competition is the best regulator for the industry."

See also, statement [PDF] of Chairman Michael Powell. This item is FCC 04-216 in WT Docket No. 04-111.

9/9. The Federal Communications Commission (FCC) announced, but did not release, a Second Further Notice of Proposed Rulemaking (FNPRM) regarding reducing the time interval for intermodal number porting (porting numbers between wireline and wireless carriers). The FCC issued a short release [PDF]. See also, separate statement [PDF] of Michael Powell, separate statement [PDF] of Michael Copps, and separate statement [PDF] of Jonathan Adelstein. This item is FCC 04-217 in CC Docket No. 95-116.

9/9. The Federal Communications Commission (FCC) announced, but did not release, a Report and Order to allow for the digital conversion of low power TV (LPTV) and TV translator stations. The FCC issued a short release [PDF] describing this item. See also, separate statement [PDF] by Michael Powell, separate statement [PDF] of Michael Copps, and separate statement [PDF] of Jonathan Adelstein. This Report and Order is FCC 04-220 in MB Docket 03-185

The House will meet at 9:00 AM for morning hour and at 10:00 AM for legislative business. See, Republican Whip Notice.

The Senate will meet at 9:45 AM for morning hour. It will then resume consideration of HR 4567, the Department of Homeland Security Appropriations Act for FY 2005.

8:00 AM. The Federation for Economically Rational Utility Policy (FERUP) will host a summit. At 4:00 PM Federal Communications Commission (FCC) Chairman Michael Powell will speak. Others scheduled speakers include FCC Commissioner Jonathan Adelstein and Rep. Cliff Stearns (R-FL). Location: Willard Intercontinental Hotel, 1401 Pennsylvania Ave., NW.

9:00 AM - 12:15 PM. Day two of a two day workshop cosponsored by the Federal Trade Commission (FTC) and the Georgetown Journal of Legal Ethics titled "Protecting Consumer Interests in Class Actions". FTC Commissioner Thomas Leary will deliver closing remarks. See, FTC notice. Press contact: Claudia Farrell at 202 326-2181. Staff contact: John Delacourt (Office of Policy Planning) at 202 326-3754. The FTC adds that "Reporters who would like to cover this event but who cannot attend can call 1-800-682-5640, chairperson Bruce Jennings, confirmation number 26283192." Location: FTC Conference Center, 601 New Jersey Ave., NW.

TIME CHANGE. 10:00 AM. The Senate Judiciary Committee will hold an executive business meeting. The agenda includes consideration of numerous items, including S 1635, the "L-1 Visa (Intracompany Transferee) Reform Act of 2003" sponsored by Sen. Saxbe Chambliss (R-GA). This bill has been placed on the Committee's agenda many times in the past, only to be held over. The agenda also includes HR 1417, the "Copyright Royalty and Distribution Reform Act of 2004", a bill to amend the Copyright Act to replace copyright arbitration royalty panels with Copyright Royalty Judges. The House has already passed this bill. The agenda also includes S 2373, a bill to modify the prohibition on recognition by U.S. courts of certain rights relating to certain marks, trade names, or commercial names. The agenda also includes consideration of judicial nominees, including Claude Allen (to be a Judge of the U.S. Court of Appeals for the 4th Circuit). Press contact: Margarita Tapia at 202 224-5225. See, notice. Location: Room 226, Dirksen Building.

9:30 AM - 5:00 PM. The Federal Communications Commission's (FCC) North American Numbering Council will meet. See, notice and agenda [PDF]. Location: FCC, 445 12th Street, SW, Room TW-C305 (Commission Meeting Room).

10:00 AM. The Senate Intelligence Committee will hold a hearing to examine the nomination of Porter Goss to be Director of Central Intelligence. Location: Room 562, Dirksen Building.

6:00 - 8:15 PM. The Federal Communications Bar Association's (FCBA) Mass Media Practice Committee will host a continuing legal education (CLE) seminar titled "Ownership Rules of the Federal Communications Commission". The speakers will include Erin Dozier (Special Advisor for Media Ownership in the FCC's Media Bureau), Jerianne Timmerman (National Association of Broadcasters), Anita Wallgren (Sidley Austin), Brian Madden (Leventhal Senter & Lerman), and Greg Schmidt (LIN Television). Prices to attend vary. See, notice. Location: Dow Lohnes & Albertson, 8th Floor, 1200 New Hampshire Ave., NW.

6:00 - 9:15 PM. The DC Bar Association will host a continuing legal education (CLE) program titled "Basics of Filing and Litigating Freedom of Information and Privacy Act Requests". The speakers will be Elizabeth Shapiro (Department of Justice) and Mark Zaid (Krieger & Zaid). See, notice. Prices vary from $70 to $115. For more information, call 202 626-3488. Location: D.C. Bar Conference Center, B-1 Level, 1250 H Street, NW.

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

10:00 AM. The U.S. District Court (DC) will hold an initial conference in Electronic Privacy Information Center (EPIC) v. Department of Defense, D.C. No. 1:2004-cv-01219-CKK, a Freedom of Information Act (FOIA) case. Judge Colleen Kotelly will preside. See, story titled "EPIC Files FOIA Complaint Against DOD Seeking Records Regarding Data Mining Project" in TLJ Daily E-Mail Alert No. 945, July 26, 2004. Location: Courtroom 11, Prettyman Courthouse, 333 Constitution Ave., NW.

10:30 AM. The Senate Appropriations Committee will meet to mark up several appropriations bills, including that for Departments of Commerce, Justice, and State, the Judiciary, and related agencies for FY 2005. Location: Room 216, Hart Building.

12:15 PM. The Federal Communications Bar Association's (FCBA) Cable Practice Committee will host a brown bag lunch. The topics will be the FCC's Fall agenda and potential subjects for future meetings. The speakers will be Catherine Bohigian (Legal Advisor on Media Issues for FCC Commissioner Kevin Martin), Frank Lloyd (Mintz Levin), an To-Quyen Truong (Dow Lohnes & Albertson). RSVP to To-Quyen Truong at ttruong@dowlohnes.com. Location: Dow Lohnes & Albertson, 1200 New Hampshire Ave., NW, 8th floor.

The Federal Communications Commission (FCC) will conduct Auction No. 57, an auction of licenses in the Automated Maritime Telecommunications System (AMTS) spectrum. See, notice in the Federal Register, June 25, 2004, Vol. 69, No. 122, at Pages 35614 - 35626.

Deadline to submit written comments to the Office of the U.S. Trade Representative (USTR) regarding the USTR's annual report to the Congress on the Peoples Republic of China's compliance with the commitments that it made in connection with its accession to the World Trade Organization (WTO). See, notice in the Federal Register, July 29, 2004, Vol. 69, No. 145, at Pages 45369 - 45370.

EXTENDED TO OCTOBER 15. Deadline to submit comments to the Federal Communications Commission (FCC) in response to its Notice of Inquiry (NOI) [15 pages in PDF] regarding "issues relating to the presentation of violent programming on television and its impact on children." This NOI is FCC 04-175 in MB Docket No. 04-261. See, story titled "FCC Issues NOI on Violent TV Programming" in TLJ Daily E-Mail Alert No. 950, August 2, 2004. See also, notice in the Federal Register, August 12, 2004, Vol. 69, No. 155, at Pages 49899 - 49904. See, Order [PDF] extending the deadlines.

Rosh Hashanah.

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in Polygram Hold Inc v. FTC, No. 03-1293. The Federal Trade Commission (FTC) filed its administrative complaint against Polygram and others on July 30, 2001 alleging unfair methods of competition in violation of Section 5 of the FTC Act by agreeing with competitor Warner Communications to restrict price competition and forgo advertising, in connection with the sale of audio and video recordings titled "Three Tenors". The FTC issued its order [8 pages in PDF] and the opinion [61 pages in PDF] of Chairman Timothy Muris on July 24, 2003, finding that the agreement between PolyGram and Warner unreasonably restrained trade and constitutes an unfair method of competition. Judges Ginsburg, Edwards and Rogers will preside. Prettyman Courthouse, 333 Constitution Ave., NW.

RESCHEDULED FROM SEPTEMBER 10. 10:30 AM. Dane Snowden, Chief of the Federal Communications Commission's (FCC) Consumer & Governmental Affairs Bureau, will hold a press briefing. RSVP to Rosemary Kimball at 202 418-0511 or rosemary.kimball@fcc.gov. Location: FCC, 445 12th St., SW, Hearing Room B/Conference Room, TW A-402/A-442.

Deadline for the President to submit a report to the Congress on the establishment and operation of the Terrorist Screening Center, established on September 16, 2003, by Homeland Security Presidential Directive/Hspd-6. This report is required by Section 360 of HR 2417, the "Intelligence Authorization Act for Fiscal Year 2004". See, story titled "Bush Signs Intelligence Authorization Bill" in TLJ Daily E-Mail Alert No. 799, December 15, 2003.

Deadline to submit comments to the Federal Communications Commission (FCC) in response to its notice of proposed rulemaking (NPRM) regarding Amateur Radio Service rules. The FCC adopted this NPRM on March 31, 2004, and released it on April 15, 2004. This NPRM is FCC 04-79 in WT Docket No. 04-140. See, notice in the Federal Register, August 17, 2004, Vol. 69, No. 158, at Pages 51028 - 51034.

Deadline to submit comments to the Federal Communications Commission (FCC) in response to the Wireline Competition Bureau's (WCB) public notice inviting interested parties to update the record pertaining to petitions for reconsideration of the 1997 Price Cap Review Order. This is in CC Docket Nos. 94-1 and 96-262. See, notice [PDF].

11:00 AM. Jessica Litman (Wayne State University Law School) will present a paper titled "Sharing and Stealing" [47 pages in PDF] at an event hosted by the Dean Dinwoodey Center for Intellectual Property Studies at the George Washington University Law School (GWULS). For more information, contact Robert Brauneis at 202 994-6138 or rbraun@law.gwu.edu. The event is free and open to the public. See, notice. Location: GWULS, Faculty Conference Center, Burns Building, 5th Floor, 716 20th Street, NW.

Extended deadline to submit nominations to the U.S. Patent and Trademark Office (USPTO) for positions on the Patent Public Advisory Committee (PPAC) and the Trademark Public Advisory Committee (TPAC) with terms that begin November 27, 2004. See, original notice in the Federal Register, August 2, 2004, Vol. 69, No. 147, at Pages 46136 - 46137, and notice of extension in the Federal Register, September 3, 2004, Vol. 69, No. 171, at Page 53895.

12:30 PM. Secretary of the Treasury John Snow will give a luncheon speech. Location: National Press Club, 529 14th St. NW, 13th Floor.

Deadline to submit comments to the Federal Communications Commission (FCC) in response to it Public Notice [PDF] requesting interested parties to provide comments on filings by AT&T and TracFone Wireless regarding eligible telecommunications carrier (ETC) designations and the Lifeline and Link-Up universal service support mechanism. This is CC Docket No. 96-45 and WC Docket No. 03-109.

1:00 - 4:00 PM. The Department of Commerce's (DOC) Technology Administration (TA) will host a roundtable titled "Technology Recycling: Achieving Consensus for Stakeholders: Roundtable on Electronics Recycling". See, notice. Location: DOC, Auditorium, 1401 Constitution Avenue, NW.

9/10. Sen. Lamar Alexander (R-TN), who is one of the leading opponents of extending, or making permanent, the ban contained in the Internet Tax Freedom Act, spoke in the Senate regarding taxes. He proposed delaying further action until the next Congress.

The original moratorium, contained in the Internet Tax Freedom Act (ITFA), was passed in late 1998. It was extended in 2001. The extended moratorium expired on November 1, 2003.

The House passed HR 49, the "Internet Tax Nondiscrimination Act", on September 17, 2003. The key language of HR 49 amends Section 1101(a) of the ITFA to read as follows: "(a) MORATORIUM- No State or political subdivision thereof may impose any of the following taxes: (1) Taxes on Internet access. (2) Multiple or discriminatory taxes on electronic commerce."

This leaves unchanged the taxes that are banned. It continues the moratorium on taxes on internet access, and multiple and discriminatory taxes on e-commerce. However, it deletes the grandfather language (thus eliminating grandfathering of taxes that were "generally imposed and actually enforced" in 1998). It also deletes any reference to a termination of the moratorium (thus making it permanent). It also clarifies that DSL service is covered by the ban on internet access taxes. The Senate has not passed HR 49.

Rather, on April 29, 2004, the Senate passed an amended version of S 150, the "Internet Tax Non-discrimination Act of 2003". See, text of bill as enacted by the Senate. The Senate bill extends the moratorium of the 1998 Internet Tax Freedom Act until November 1, 2007. However, the bill also includes numerous exceptions and qualifications that provide state and local governments a wide range of opportunities to tax internet access. See, story titled "Senate Passes Weakened Version Internet Non-discrimination Act" in TLJ Daily E-Mail Alert No. 889, May 3, 2004.

Sen. Alexander (at left) stated on September 10 that "I propose that representatives of States, of cities, of counties, and of the telecommunications industry meet together between now and the opening of the 109th Congress in January and develop a framework to assist Congress with how to approach this highly technical but very important set of issues."

This would have the effect of putting off until well into the next Congress any extension of the moratorium.

He explained that "High-speed Internet access is a fine, remarkable, admirable, new technology. But so was television, so was radio, so was electricity, so was the internal combustion engine. It is not the American way to subsidize such new inventions."

See, Congressional Record, September 10, 2004, at Page S9068.

9/13. Mark Cohen was appointed intellectual property attaché to the U.S. Embassy in Beijing, China. He is an attorney advisor in the U.S. Patent and Trademark Office (USPTO) office of enforcement. The USPTO stated in a release that he "will work with government officials to improve Chinese intellectual property laws, regulations and enforcement procedures."

9/13. The National Telecommunications and Information Administration (NTIA) submitted a comment to the Federal Communications Commission (FCC) in its proceeding titled "In the Matter of Review of Part 87 of the Commission’s Rules Concerning the Aviation Radio Service". This is WT Docket No. 01-289.

9/13. The Federal Trade Commission (FTC) and the Georgetown Journal of Legal Ethics began its two day conference titled "Protecting Consumer Interests in Class Actions". FTC Chairman Deborah Majoras stated in her opening remarks that "As consumer class actions have evolved over time, however, concerns have been raised about whether some of these actions -- and especially some of the settlements agreed to -- truly serve consumers' interests by providing them appropriate benefits." She added that "in some cases class actions may be an impediment to protecting consumer welfare. ... The FTC's primary concern has been whether coupon and other non-pecuniary redress provide adequate relief to injured consumers."

9/13. The Electronic Privacy Information Center (EPIC) published in its web site a document [PDF] that consists of two pages out of John Poindexter's calendar for June 26 and 27, 2002. The EPIC obtained this document from the Department of Defense (DOD) in response to a request made pursuant to the Freedom of Information Act (FOIA). At the time, Poindexter was Director of the Defense Advanced Research Projects Agency's (DARPA) Total Information Awareness Office. The calendar lists a one and one half hour meeting with Wesley Clark. The EPIC states that at this time Clark was a lobbyist for Acxiom, a data warehouse company. See also, story titled "E-Mail Shows DARPA's Interest in Huge Databases of Commercial Information" in TLJ Daily E-Mail Alert No. 831, February 6, 2004.

9/13. The Electronic Privacy Information Center (EPIC) published in its web site a document titled "Online Investigative Principles for Federal Law Enforcement". See, Part 1, Part 2, and Part 3 [large PDF scans]. The document is labeled "Property of the United States Government" and dated "November 1999".  It recites federal law enforcement policies for obtaining personal information online and engaging in surveillance. The EPIC acquired this document from the Department of Justice in response to a FOIA request.

8/30. The U.S. District Court (SDNY) issued its Stipulated Permanent Injunction Order [14 pages in PDF] in FTC v. Silverman. The Federal Trade Commission (FTC) filed a complaint in the District Court on November 9, 2002 alleging violation of FTC Act in connection with the defendants' sale of laptop computers via internet auction websites, including eBay. The defendants auctioned merchandise, collected payment, but did not always make delivery. The individual defendants are Brian E. Silverman and John Engholm aka John Patterson. This case is FTC v. Brian E. Silverman, et al., D.C. No. 02-8920 (GEL), Judge Gerald Lynch presiding.

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