11/20. The House and Senate both approved on November 20, 2004 an huge omnibus appropriations bill that provides appropriations for fiscal year 2005 for most of the technology related executive branch entities. Also, while it is an appropriations bill, it also includes many substantive law provisions.

This bill contains FY 2005 appropriations for the Federal Communications Commission (FCC), Federal Trade Commission (FTC), and Securities and Exchange Commission (SEC). It also includes appropriations for the Department of Commerce (DOC), which includes the U.S. Patent and Trademark Office (USPTO), National Institute of Science and Technology (NIST), National Telecommunications and Information Administration (NTIA), and the Bureau of Industry and Standards (BIS). It also includes appropriations for the Department of Justice (DOJ), which includes the Antitrust Division and the Criminal Division (which handles matters related to intellectual property crimes, computer hacking, and CALEA matters.

As of publication of this issue, the conference report was not yet published in the Congress's Thomas web site. However, it is in the House Rules Committee web site. See, web page with hyperlinks to the different divisions of the bill. See especially, Division B [PDF scan], titled "Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 2005". This copy is a PDF scan of 216 pages, and over 20 MB. It is a a long download. This Division contains most of the technology related appropriations.

The House approved the conference report on HR 4818, this omnibus appropriations bill, on Saturday afternoon, November 20, by a vote of 344-51. See, Roll Call No. 542. This vote was non-partisan. 27 Republicans voted against the bill, and 24 Democrats voted against it.

The Senate approved the conference report on Saturday night, November 20, by a vote of 65-30. See, Roll Call No. 215. Voting correlated with party affiliation. 6 of 51 Republicans voted against the bill, while 23 of 48 Democrats voted for the bill.

See, House Appropriations Committee's (HAC) summary of the bill, titled "Highlights of the Final FY05 Spending Bills", and Senate Appropriations Committee's (SAC) summary of Division B of the bill.

President Bush will sign the bill after his return from the APEC conference in Chile. He released a statement on November 20, 2004. He wrote, "I commend the Congress for reaching agreement on the fiscal year 2005 Omnibus Appropriations Bill. ... I look forward to signing a final bill into law."

The bill appropriates $281 Million for the FCC for FY 2005. This is $7 Million above the FY 2004 appropriation. (See, page 135 of the above hyperlinked Rules Committee draft.)

The bill provides $205,430,000 for the FTC. (See, page 136 of the Rules Committee draft.)

The bill provides $913 Million for the SEC. This is $102 Million above FY 2004. (See, page 139.)

The bill provides $41,552,000 for the Office of the U.S. Trade Representative (USTR).

The bill provides $1,187,000 for the Antitrust Modernization Commission.

The Department of Justice's (DOJ) appropriations are covered in pages 1-50 of the Rules Committee draft. The bill provides the Antitrust Division "For expenses necessary for the enforcement of antitrust and kindred law, $138,763,000."

The bill does not give a breakdown for the Criminal Division or any of its components, such as the Computer Crimes and Intellectual Property Section (CCIPS). The bill specifies $13.5 Million for the Internet Crimes Against Children (ICAC) Task Force. The FBI gets $5,205 Million, an increase of $625 Million.

The Department of Commerce's (DOC) appropriations are covered in pages 50-95 of the Rules Committee draft.

The NTIA receives appropriations for its expenses ($17.4 Million) and for grants ($21.8 Million). The bill provides that "For necessary expenses, as provided for by law, of the National Telecommunications and Information Administration (NTIA), $17,433,000, to remain available until September 30, 2006: Provided, That, notwithstanding 31 U.S.C. 1535(d), the Secretary of Commerce shall charge Federal agencies for costs incurred in spectrum management, analysis, and operations, and related services and such fees shall be retained and used as offsetting collections for costs of such spectrum services, to remain available until expended. Provided further, That, the Secretary of Commerce is authorized to retain and use as offsetting collection all funds transferred, or previously transferred, from other Government agencies for all costs incurred in telecommunications research, engineering, and related activities by the Institute for Telecommunication Sciences of NTIA, in furtherance of its assigned functions under this paragraph, and such funds received from other Government agencies shall remain available until expended."

The bill also provides "For administration of grants authorized by section 392 of the Communications Act of 1934, $21,769,000, to remain available until expended as authorized by section 391 of the Act."

The bill provides $2 Million for the National Intellectual Property Law Enforcement Coordination Council.

The bill provides $68,393,000 for the Bureau of Industry and Security (BIS), which was previously named the Bureau of Export Administration (BXA).

The bill provides $6,547,000 for the Office of Technology Policy (OTP).

The bill provides $709 Million for the National Institute of Standards and Technology (NIST), including $109 Million for the Manufacturing Extension Partnership (MEP) program.

The bill provides appropriations totaling $1.54 Billion for the U.S. Patent and Trademark Office (USPTO). See also, related story in the issue, titled "Appropriations Bill Provides $1.54 Billion for USPTO, Temporary Fee Increases, But No End to Diversion".

The State Department appropriation includes $600 Million for international broadcasting, which is $48 Million above FY 2004, to provide increased funding for radio and television broadcasting in the Middle East.

The bill also addresses telecommuting. Section 622 of the bill (at page 162) provides that "The Departments of Commerce, Justice, State, the Judiciary, the Securities and Exchange Commission and the Small Business Administration shall, not later than two month after the date of the enactment of this Act, certify that telecommuting opportunities are made available to 100 percent of the eligible workforce." The bill also requires quarterly reports to Congress on their telecommuniting programs. This does not apply to the FCC or FTC.

Division A [another huge PDF scan] of the bill pertains to "Agriculture, Rural Development, and Related Agencies". It appropriates a total of $56 Million for distance learning, telemedicine and broadband programs for grants and loan subsidy costs.

The bill also amends immigration law pertaining to H-1B visas (which covers high tech workers) and L-1 Visas (for intracompany transfers). See, story in this issue titled "Appropriations Bill Includes H1B and L1 Visa Provisions".

11/20. The House and Senate both approved the conference report on HR 4818, the huge omnibus appropriations bill that includes appropriations for many departments and agencies, including the U.S. Patent and Trademark Office (USPTO).

The bill provides appropriations totaling $1,540,000,000 for the USPTO for FY 2005. The Congress has not approved HR 1561, the USPTO fee bill. However, this omnibus appropriations bill contains the fee increases; but, the increases are only applicable for FY 2005 and 2006. The appropriations bill also contains the fee bill's language regarding outsourcing patent searches to U.S. companies. However, the fee bill's language regarding ending fee diversion is not in the appropriations bill.

Division B [huge PDF scan] of HR 4818 is titled "Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 2005". It contains the USPTO provisions.

The USPTO appropriations language includes much smoke and mirrors, metaphorically.

It provides that "For necessary expenses of the United States Patent and Trademark Office provided for by law, including defense of suits instituted against the Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office, $1,336,000,000, to remain available until expended, which shall be derived from offsetting collections assessed and collected pursuant to 15 U.S.C. 1113 and 35 U.S.C. 41 and 376, and shall be retained and used for necessary expenses. Provided, That the sum herein appropriated from the general fund shall be reduced as such offsetting collections are received during fiscal year 2005, so as to result in a fiscal year 2005 appropriation from the general fund estimated at $0: Provided further, That during fiscal year 2005, should the total amount of offsetting fee collections be less than $1,356,000,000, this amount shall be reduced accordingly: Provided further, That not less that 526 full-time equivalents, 530 positions and $72,899,000 shall be for the examination of trademark applications; and not less than 5,057 full-time equivalents, 5,139 positions and $759,021,000 shall be for the examination and searching of patent applications: Provided further, That not more than 244 full-time equivalents, 251 positions and $31,906,000 shall be for the Office of the General Counsel: Provided further, That of amounts made available under this heading, $20,000,000 shall only be available for initiatives to protect United States intellectual property overseas:

It also states that, "Provided further, That notwithstanding section 1353 of title 31, United States Code, no employee of the United States Patent and Trademark Office may accept payment of reimbursement from a non-Federal entity for travel, subsistence, or related expenses for the purpose of enabling an employee to attend and participate in a convention, conference, or meeting when the entity offering payment or reimbursement is a person or corporation subject to regulation by the Office, or represents a person or corporation subject to regulation by the Office, unless the person or corporation is an organization exempt from taxation pursuant to section 501(c)(3) of the Internal Revenue Code of 1986.

And, it provides that "In addition, fees authorized by title VIII of this Act may be collected and credited to this account as offsetting collections: Provided, That not to exceed $218,754,000 derived from such offsetting collections shall be available until expended for authorized purposes: Provided further, That not less than 58 full-time equivalents, 72 positions and $8,551,000 shall be for the examination of trademark applications; and not less than 378 full-time equivalents, 709 positions and $106,986,000 shall be for the examination and searching of patent applications; Provided further, That not more than 20 full-time equivalents, 20 positions and $4,955,000 shall be for the Office of General Counsel: Provided further, That the total amount appropriated from fees collected in fiscal year 2005, including such increased fees, shall not exceed $1,574,754,000;

Title VIII, which is at pages 174-192 of the Rules Committee's PDF draft, is titled "PATENT AND TRADEMARK FEES". It incorporates much of the language of HR 1561.

March 3, 2004, the House approved HR 1561, the "United States Patent and Trademark Fee Modernization Act of 2003", by a vote of 379-28. See, Roll Call No. 38. See, story titled "House Passes USPTO Fee Bill", also published in TLJ Daily E-Mail Alert No. 849, March 4, 2004. The bill contains increases in user fees that implement the U.S. Patent and Trademark Office's (USPTO) 21st Century Strategic Plan. It also provides for U.S. outsourcing of patent searches, and an end to the diversion of user fees to subsidize other government programs. The Senate Judiciary Committee, but not the full Senate, has approved this bill.

HR 4818 essentially cuts and pastes most of the USPTO fee bill into the appropriations bill. However, it omits the language in Section 5 of HR 1561 that addresses ending the diversion of USPTO fees to subsidize other government programs. It also deletes requirements for studies. It also deletes some conforming amendments. It adds language regarding transition and the temporary nature of these provisions.

It does include HR 1561's language that allows the outsourcing of patent searches, but only to U.S. companies using U.S. citizens.

11/20. The House and Senate both approved the conference report on HR 4818, the huge omnibus appropriations bill that includes appropriations for many departments and agencies, including the Federal Communications Commission (FCC).

Division B [huge PDF scan] of HR 4818 is titled "Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 2005". It contains the FCC provisions.

It provides, at page 135, "For necessary expenses of the Federal Communications Commission, as authorized by law, ... $281,098,000."

Section 634, at page 170, provides that "None of the funds appropriated by this Act may be used by the Federal Communications Commission to modify, amend, or change its rules or regulations for universal support payments to implement the February 27, 2004 recommendations of the Federal-State Joint Board on Universal Service regarding single connection or primary line restrictions on universal service support payments."

Section 638, at page 172, provides that "Notwithstanding 40 U.S.C. 524, 571, and 572, the Federal Communications Commission may sell the monitoring facilities in Honolulu, Hawaii, and Livermore, California, including all real property."

There are also FCC related provisions in Division J [PDF scan], titled "Other Matters". First, it includes a much revised version of the Satellite Home Viewer Extension Reauthorization Act (SHVERA). This is at PDF pages 122-228 of the Rules Committee draft. Second, it includes, at page 16, a provision applicable only to certain Alaska tariffs.

11/20. President Bush traveled to Santiago, Chile for the Asia-Pacific Economic Cooperation (APEC) summit. He gave a speech on November 20, 2004.

He stated that "We want to seek wider trade and broader freedom and greater security for the benefit of our partners and for the benefit of all. That's what I'm going to do over the next four years. The first goal is to lower barriers to trade and investment and to promote sound fiscal policies for all our governments. Free and fair trade combined with prudent fiscal discipline are the foundation of the region's remarkable prosperity, and I'm committed to staying on the path to pro-growth, pro-economic growth -- economic growth by pro-growth policies."

He stated that "this government and our country is strongly committed to the WTO's Doha Round of negotiations. And my Trade Minister will be strongly committed to ensure the success of the WTO round." He added that "We're going to be aggressive about our bilateral trade agreements and our regional trade agreements."

He said that "I believe free trade is necessary for economic development, that free trade is essential to prosperity. But it is not sufficient, and we understand that." He also said that "economic freedom and political liberty are indivisible".

He also elaborated on this point in his Saturday radio address. He said that "we know that freedom is indivisible. The economic liberty that builds prosperity also builds a demand for limited government and self rule. Modernization and progress eventually require freedom in all its forms. And the advance of freedom is good for all, because free societies are peaceful societies. America and our friends are helping other countries lay the foundations of democracy by establishing independent courts, a free press, political parties and trade unions, by instituting the rule of law and by keeping up the fight against corruption."

The White House press office also issued a release on the APEC summit that addresses talks regarding intellectual property protections. It states that "Leaders welcomed the ministers' agreement to take actions next year to reduce piracy and trade in counterfeit goods, address online piracy issues, and increase IPR cooperation and capacity building. This U.S.-driven APEC commitment complements the Bush Administration's recently launched Strategy Targeting Organized Piracy (STOP) to shut down global trade in counterfeit and pirated products and crack down on criminal networks that traffic in these goods."

See also, conference web site.

11/20. The House and Senate both approved the conference report on HR 4818, the huge omnibus appropriations bill that includes appropriations for many departments and agencies. It also contains many substantive bills, including language titled the "L-1 Visa and H-1B Visa Reform Act". H-1B visas enable skilled high tech workers to work in the U.S. The annual quota is currently 65,000. HR 4818 would allow an additional 20,000 visas to be issued to graduates of U.S. universities with a masters, or higher, degree.

As of publication of this issue, the conference report was not yet published in the Congress's Thomas web site. However, it is in the House Rules Committee web site. See, web page with hyperlinks to the different divisions of the bill. See, Division J [PDF scan], titled "Other Matters". This copy is a PDF scan of 316 pages. It is a very long download. It is also a hand marked draft.

HR 4818 includes the S 1635, the "L-1 Visa (Intracompany Transferee) Reform Act of 2004", sponsored by Sen. Saxby Chambliss (R-GA). This was a stand alone bill that was amended and approved by the Senate Judiciary Committee on September 30, 2004. The version in HR 4818 further amends the language of S 1635.

Sen. Chambliss described his bill when he introduced it on September 17, 2003. "Congress created the L-1 visa to allow international companies to move executives, managers, and other key personnel within the company and into the U.S. temporarily. The L-1 is an important tool for our multi-national corporations, however, some companies are making an end-run around the visa process by bringing in professional workers on L-1 visas and then outsourcing those workers to a third party company. In other words, some firms are using the so-called ``L-1 loophole´´ to become the international equivalent of temp agencies, or ``job shops.´´ As a result, American workers are being displaced by foreign workers who are brought to the U.S. essentially for their labor. This must stop -- my legislation targets the problem, closes the loophole, and protects U.S. jobs from inappropriate use of the L-1 visa." See, Congressional Record, September 17, 2003, at Pages S11686-7.

HR 4818 also includes the "H-1B Visa Reform Act of 2004". This is new. This bill had not been previously approved by either the House or Senate. No Committee reported this bill. No Committee held a hearing on this bill.

H-1B refers to 8 U.S.C. § 1101(a)(15)(H)(i)(b). The quota for H-1B visas is set at 8 U.S.C. § 1184(g). It had been 65,000. It was raised for fiscal years 1999-2003. It is now back to 65,000 per year.

HR 4818 amends Section 1184(g)(5), which currently provides that "The numerical limitations contained in paragraph (1)(A) shall not apply to any nonimmigrant alien issued a visa or otherwise provided status under section 1101(a)(15)(H)(i)(b) of this title who is employed (or has received an offer of employment) at -- (A) an institution of higher education (as defined in section 1001(a) of title 20, or a related or affiliated nonprofit entity; or (B) a nonprofit research organization or a governmental research organization."

HR 4818 adds a new Subsection (C) that provides, "(C) has earned a master's or higher degree from a United States institution of higher education (as defined by section 101(a) of the Higher Education Act of 1965 (20 U.S.C. 1001(a)), until the number of aliens who are exempted from such numerical limitation during such year exceeds 20,000."

This effectively raises the H-1B quota by 20,000.

HR 4818 also amends Subsection (A) and (B), quoted above, to include not only persons "employed", but also persons "employed (or has received an offer of employment)". (Parentheses in original.)

These visas provisions are Title IV of Division J of HR 4818. The Rules Committee PDF draft is not paginated. However, this title is PDF pages 37-47. It also includes, in a handwritten notation, at page 37, a name and phone number. It is Joe Jacquot, of Sen. Chambliss's staff.

On November 16, 2004, HP, Intel, Level 3 Communications, Micron Technology, Microsoft, and Texas Instruments released an essay in which they urged the Congress address H-1B visas.

They wrote that "Just as the economy is gaining strength, and as companies work to keep and expand jobs in the United States, we have been stymied in our efforts to employ the scarce talent that could help sustain the economy’s momentum. Although individuals with H-1B visas are only a small percentage of the total workforce in any of our organizations, we believe these talented individuals are an essential part of our ability to compete and succeed."

The companies suggested that "Congress has an opportunity to ease the problem now by providing an exemption from the cap on H-1B visas for individuals who have earned advanced degrees from American universities. Lawmakers also can help by finding ways to streamline the process of obtaining green cards for these professionals, whose education and specialized skills are needed to help maintain U.S. competitiveness and to help secure America's technological future."

11/20. Sen. Ron Wyden (D-OR) previously placed a hold on the nomination of Deborah Majoras to be Chairman of the Federal Trade Commission (FTC). He stated in the Senate on November 19, 2004 that "I will no longer object to any unanimous consent request for the Senate to take up Ms. Majoras' nomination." See, Congressional Record, November 19, 2004 at Pages S11486-7. On November 20, 2004, the Senate confirmed Majoras and Jonathan Liebowitz to be Commissioners of the FTC.

11/20. The Senate confirmed Jonathan Adelstein to be a Commissioner of the Federal Communications Commission (FCC) for a term that expires on June 30, 2008.

11/20. The Senate confirmed Mike Gallagher to be head of the National Telecommunications and Information Administration (NTIA).

11/20. The Senate confirmed Ted Kassinger to be Deputy Secretary of Commerce.

11/20. The Senate confirmed Ben Wu to be Assistant Secretary of Commerce for Technology Policy.

11/20. The Senate confirmed Arden Bement to be Director of the National Science Foundation.

11/20. The Senate confirmed Jon Dudas to be Under Secretary of Commerce for Intellectual Property, and Director of the U.S. Patent and Trademark Office (USPTO).

11/20. The Senate confirmed Micaela Alvarez to be a Judge of the U.S. District Court for the Southern District of Texas.

11/20. The Senate confirmed Keith Starrett to be a Judge of the U.S. District Court for the Southern District of Mississippi.

11/20. The Senate confirmed Christopher Boyko to be a Judge of the U.S. District Court for the Northern District of Ohio.

11/17. Robert Shema was named VP and Chief Operating Officer of the American Cable Association (ACA). He will handle communications, operations and policy matters. See, ACA release [PDF].

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in Minnesota Christian Broadcasters, Inc v. FCC, No. 03-1439. This case pertains to an auction for a construction permit for a new commercial FM station. Judges Edwards, Sentelle and Garland will preside. See, brief [26 pages in PDF] filed by the FCC on July 27, 2004. Location: Prettyman Courthouse, 333 Constitution Ave., NW.

Deadline to submit reply comments to the Federal Communications Commission's (FCC) Office of Engineering and Technology (OET) in response to Geophysical Survey Systems, Inc.'s (GSSI) request for a waiver of Part 15 of the FCC's rules to permit the higher power operation of ultra-wideband (UWB) non-contact ground penetrating radars (GPRs). See, FCC notice [2 pages in PDF]. This is ET Docket No. 04-374.

8:30 AM - The National Science Foundation's (NSF) President's Committee on the National Medal of Science will hold a meeting that is closed to the public. See, notice in the Federal Register, November 5, 2004, Vol. 69, No. 214, at Page 64596. Location: Room 1235, NSF, 4201 Wilson Blvd., Arlington, VA.

Thanksgiving Day.

The Federal Communications Commission (FCC) and other federal offices will be closed. See, Office of Personnel Management's (OPM) list of federal holidays.

There will be no issue of the TLJ Daily E-Mail Alert.

There will be no issue of the TLJ Daily E-Mail Alert.

The Supreme Court will return from the recess that it began on Monday, November 25, 2004. See, Order List [14 pages in PDF] at page 14.

6:00 - 9:15 PM. The DC Bar Association will host a continuing legal education (CLE) program titled "How to Litigate an Intellectual Property Case Series, Part 3: How to Litigate a Patent Case". The speaker will be Patrick Coyne (Finnegan Henderson). 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 St., NW.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its notice of proposed rulemaking (NPRM) regarding the Emergency Alert System (EAS). The FCC adopted this NPRM at its August 4, 2004 meeting, and released it on August 12, 2004. This NPRM is FCC 04-189 in EB Docket No. 04-296. See, notice in the Federal Register, August 30, 2004, Vol. 69, No. 167, at Pages 52843 - 52847.

11/21. President Bush signed HJRes 114, which makes continuing appropriations for FY 2005 through December 2, 2004. See, White House release.

11/19. President Bush signed S 2986, which increases the public debt limit. See, White House release.

11/19. Sen. Chris Dodd (D-CT) introduced S 3020, the "Free Speech Protection Act of 2004". Sen. Dodd issued a release that states that the purpose of this bill is "to protect individuals and organizations involved in gathering and disseminating news from being hauled into federal court and forced to disclose their sources or other unpublished information." It adds that the bill would "establish a strong and uniform federal reporters' shield law modeled after statutes currently in place in thirty-one states and the District of Columbia." The bill was referred to the Senate Judiciary Committee.

11/19. The Federal Communications Commission (FCC) announced that it issued a Grant of Certification to Vanu, Inc. for a cellular base station transmitter. The FCC published a short release [PDF], but not the Grant of Certification, in its web site. This release states that this is the first time that the FCC has approved a software defined radio device in the U.S. The FCC's Office of Engineering and Technology's (OET) Laboratory Division issued the Grant of Certification. FCC Chairman Michael Powell stated that "This is the first step in what may prove to be a radio technology revolution". See also, Vanu release.

11/18. The Recording Industry Association of America (RIAA) announced that its member companies filed lawsuits against an additional 761 alleged infringers in connection with their use of P2P systems. See, RIAA release.

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