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January 6, 2005, 9:00 AM ET, Alert No. 1,051.
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Commerce Committee Holds Hearing on Nomination of Carlos Gutierrez

1/5. The Senate Commerce Committee held a hearing on the nomination of Carlos Gutierrez to be Secretary of Commerce. Senators of both parties praised him, and predicted his rapid confirmation. He encountered no criticism or opposition.

Sen. Daniel Inouye (D-HI), the new ranking Democrat on the Committee, praised Gutierrez, and said that he would vote for him. Sen. Ted Stevens (R-AK), the new Chairman, did the same. Other Democrats on the Committee praised Gutierrez, and his life history, and suggested that they will vote for him. Sen. Debbie Stabenow (D-MI) and Sen. Carl Levin (D-MI), who represent Gutierrez's home state, both testified in support of him.

Gutierrez was born in Havana, Cuba. His family came to the U.S. when he was a child. He went to work for the Kellogg Company in 1975, driving a van and stocking shelves. He is now the Chairman of the Board and CEO. He as no college education. The Kellogg Company is based in Battle Creek, Michigan.

Sen. Ted StevensSen. Stevens (at right) stated that the Committee may meet again, in a room off of the Senate floor, on Thursday, January 6, to formally pick the Chairman of the Committee, and vote to forward the Gutierrez nomination to the full Senate. Senate confirmation could then take place on January 20, 2005.

The hearing lasted for two hours. Almost all of the new and returning members of the Committee spoke and asked questions. Gutierrez said little about what actions he might take if confirmed. However, the meeting provided indications of the members' policy goals for the 109th Congress.

There was little discussion of technology or communications related issues.

Many members of the Committee raised issues related to oceans and fisheries. The new membership of the Committee consists of 22 Senators. A disproportionate number, 15, represent states that border on either the Atlantic Ocean, Pacific Ocean, or Gulf of Mexico. Just under half of the states border on oceans.

Many Senators raised trade issues. However, they mostly emphasized enforcement of existing trade obligations, rather than negotiation of new trade agreements. Many members raised the dispute with Canada over softwood lumber. Several members raised intellectual property related problems in the People's Republic of China.

Gutierrez stated that his goals include "fostering the environment in which our free enterprise system will flourish, by serving as an advocate for reducing trade and regulatory barriers that unreasonably burden our businesses and their workers" and "collaborating with the U.S. Trade Representative both in the negotiation of sound trade agreements that will open markets to U.S. exports, and in vigorous challenges to policies and practices abroad that violate those agreements".

He said also that he is committed to supporting the Department of Commerce's mission of "creating conditions for economic growth and opportunity by promoting innovation, entrepreneurship, competitiveness, and environmental stewardship."

In response to questions from new member Sen. Jim DeMint (R-SC), he said that the Department of Commerce should promote "risk taking", "innovation", and "entrepreneurship". Gutierrez added that "we have to be careful that we do not make business risk almost a liability", or a crime.

Sen. Mark Pryor (D-AR), a new member of the Committee, asked Gutierrez what plans he has for promoting the deployment of broadband internet access services in rural areas. Gutierrez responded to this questions as he did to many other questions at this hearing. He shares the Senator's concern, and it is a priority for him, but he has not yet formulated any policies.

Sen. Gordon Smith (R-OR) said that piracy of copyrighted material, especially in the People's Republic of China and Russia, is a serious problem. Gutierrez and agreed, and offered his experiences in protecting the Kellogg brand. However, neither Sen. Smith, nor any other Senator discussed piracy or intellectual property outside of the context of foreign trade.

Sen. George Allen (R-VA) focused almost entirely on technology related issues. He raised intellectual property rights, and cited problems with China regarding both software and semiconductor chips.

Sen. George AllenSen. Allen (at right) also advocated banning internet access taxes, regardless of the platform used to access the internet. Gutierrez spoke vaguely about sharing Sen. Allen's concerns, and wanting to maintain the status quo.

Late last year, the Congress passed, and President Bush signed, S 150, a bill that extended the internet tax moratorium through November 1, 2007, and created many new exceptions to the moratorium. See, story titled "Bush Signs Internet Tax Nondiscrimination Act" in TLJ Daily E-Mail Alert No. 1,031, December 6, 2004.

Sen. Allen also advocated federal support for upgrading information technology at minority serving institutions. Gutierrez discussed Kellogg's history of support for minority education.

Sen. Allen also advocated broadband, and "getting the Communications Act up to date". However, neither he, nor any other members elaborated on amending the Act.

Sen. Bill Nelson (D-FL) said that "we are going to have to address intellectual property issues", especially with respect to China.

He also referenced the Department of Commerce's National Telecommunications and Information Administration (NTIA), and advocated making more spectrum available for first responders. He added that this proposal will face opposition, but he did not broadcast who the opponents will be.

Sen. Olympia Snowe (R-ME) said that she wants Gutierrez to hold China to its World Trade Organization (WTO) obligations.

Sen. Stevens and Sen. Inouye also used this occasion to identify changes in the operation of the Committee. They described themselves as friends, partners, and brothers. Sen. Stevens said that the Committee will be run in a non-partisan manner.

Sen. Stevens added that he and Sen. Inouye have served in the Senate, and on the Commerce and Appropriations Committees, for decades, and "we have never found an issue that we couldn't resolve amicably".

Sen. Stevens also said that the Committee will follow the "early bird rule". This means that Senators speak in the order in which they appear at the hearing. Most Committees adhere to the privilege of seniority.

Gutierrez brought his wife, two daughters and son to the hearing. Sen. Stevens said that "we note your beautiful daughters". Gutierrez responded, "They have been harder to manage than the Kellogg Company." Sen. Stevens also asked Gutierrez to join him in Alaska for a fishing trip.

1st Circuit Rules in Dispute Over Damage to Computer During Moving

1/5. The U.S. Court of Appeals (1stCir) issued its opinion in Rational Software v. Sterling, a dispute over damages to a computer that was broken while being moved. The Appeals Court affirmed the District Court's judgment that the owner is not entitled to the value of the computer. The carrier is liable only for the per pound limit stated in the bill of lading.

Rational Software owned a 1540 pound, $250,000 disk array. Rational Software hired Sterling Corporation to move it. Sterling dropped it, and broke it. Rational Software had frequently hired Sterling, and in each instance the bill of lading provided that "Unless A Different Value Is Declared, The Shipper Hereby Releases The Property To A Value Of $.60 Per Pound Per Article". This sixty cent per pound limitation was also stated in Sterling's Commodity Rate Tariff, filed with the Massachusetts Department of Telecommunications and Energy. However, Sterling did not present the bill of lading for this shipment until after the damage.

Rational Software filed a complaint in U.S. District Court (DMass) against Sterling alleging negligence under state law, and seeking to recover the value of the computer. Federal jurisdiction was based upon diversity of citizenship. Sterling did not dispute its negligence, or the value of the computer. The District Court awarded Rational Software a judgment in the amount of $924, based upon the 60 cents per pound limit.

The Appeals Court affirmed, based upon the state statute, and the parties' prior course of dealing. The Court applied the pertinent provision of the Uniform Commercial Code, as enacted by the state of Massachusetts. It provides that "Damages may be limited by a provision that the carrier's liability shall not exceed a value stated in the document if the carrier's rates are dependent upon value and the [shipper] by the carrier's tariff is afforded an opportunity to declare a higher value or a value as lawfully provided in the tariff, or where no tariff is filed he is otherwise advised of such opportunity."

This case is Rational Software Corporation v. Sterling Corporation, U.S. Court of Appeals for the 1st Circuit, App. Ct. No. 04-1607, an appeal from the U.S. District Court for the District of Massachusetts, Judge Joseph Tauro presiding.

State Court Rules Employer Can Consent to Search of Computer Used By Employee

12/28. The Court of Appeals of the State of Washington issued a non-precedential opinion in Washington v. Lack, an appeal from a criminal conviction involving whether the search of a computer, without a warrant, violated the Lack's 4th Amendment rights.

The state searched a computer used by the defendant, Jack Lack, at his place of employment. The computer was owned by his employer, but Lack was the primary user of the computer. His employer gave the state permission to search the computer. Lack did not. The state found evidence of crimes on the computer, which it introduced into evidence. Lack was convicted following a bench trial.

The Appeals Court concluded that the employer "had control of both the ... office and computer and could solely consent to the search".

It should also be noted that this is a state court opinion, that it is designated non-precedential, and that Lack was a volunteer for one week, rather than a full time employee.

This case is Washington v. Jack Leck, Court of Appeals Division II, State of Washington, No. 30714-6-II.

People and Appointments

1/5. President Bush named Claude Allen Assistant to the President for Domestic Policy. He will replace Margaret Spellings, who has been nominated to be Secretary of Education. Allen is currently Deputy Secretary of Health and Human Services. President Bush had previously nominated Allen to be a Judge of the U.S. Court of Appeals (4thCir). However, Senate Democrats obstructed consideration of this and other nominations. President Bush announced a list of 20 renominations for 109th Congress on December 23, 2004. Allen was not on the list. See, story titled "Bush to Renominate 20 for Federal Judgeships" in TLJ Daily E-Mail Alert No. 1,044, December 27, 2004.

1/5. President Bush named Daniel Bartlett Counselor to the President. He is currently Assistant to the President for Communications. President Bush also named Nicolle Devenish Assistant to the President for Communications. See, White House release.

1/5. Sen. Ted Stevens (R-AK) announced the senior staff for the Senate Commerce Committee for the 109th Congress. Lisa Sutherland will be Chief of Staff. She previously worked for Sen. Stevens on the Senate Appropriation Committee staff. David Russell will be Chief Counsel. He was previously Chief of Staff in Sen. Stevens' personal office. Christine Kurth will be Deputy Chief of Staff. She was previously Deputy General Counsel on the Appropriations Committee. Melanie Alvord will be Press Secretary. She has previously been the Press Secretary in Sen. Stevens' personal office and for the Appropriations Committee. Counsel for the Communications Subcommittee have not yet been announced.

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Washington Tech Calendar
New items are highlighted in red.
Thursday, January 6

The House will meet at 11:00 AM. See, Republican Whip Notice.

The Senate will meet at 9:30 AM.

The Supreme Court will next meet on Monday, January 10, 2005. See, Order List [9 pages in PDF] at page 9.

TIME CHANGE. 9:30 AM. The Senate Judiciary Committee will begin its hearing on the nomination of Alberto Gonzales to be Attorney General. Sen. Arlen Specter (R-PA) will preside. See, notice. Location: Room 216, Hart Building.

10:00 AM. The Senate Health, Education, Labor and Pensions Committee will hold a hearing on the nomination of Margaret Spelling to be Secretary of Education. Location: Room 430, Dirksen Building.

2:30 PM. Secretary of Homeland Security Tom Ridge will participate in a press conference announcing the National Response Plan. The DHS's notice also states that "Press wishing to attend this event must present valid press credentials and arrive no later than 2:15 PM". Location: National Governors' Association, Hall of the States, 444 N. Capitol St., NW.

Deadline to submit comments to the Export-Import Bank of the United States regarding its notice in the Federal Register that states that it "has received an application to finance the export of approximately $1.2 billion in U.S. semiconductor manufacturing equipment to dedicated foundries in China." The notice adds that "The U.S. exports will enable the dedicated 200-mm and 300-mm foundries to produce approximately 80,000 wafers per month (200-mm equivalent) of logic products. Available information indicates that some of this new production will be exported from China and consumed globally." See, Federal Register, December 23, 2004, Vol. 69, No. 246, at Page 76945.

Friday, January 7

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

Deadline to submit nominations to the Federal Communications Bar Association (FCBA) for its Executive Committee and Foundation. Send nominations to Alexandra Wilson at alexandra.wilson@cox.com.

EXTENDED TO JANUARY 24. Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its notice of proposed rulemaking (NPRM) regarding service rules for advanced wireless services (AWS) in the 1915-1920 MHz, 1995-2000 MHz, 2175-2180 MHz and 1.7 GHz and 2.1 GHz bands. The FCC adopted this NPRM at its September 9, 2004 meeting, and released the text on September 24, 2004. It is FCC 04-218 in WT Docket No. 04-356 and WT Docket No. 02-353. See, notice in the Federal Register, November 2, 2004, Vol. 69, No. 211, at Pages 63489-63498. See also, story titled "FCC Makes Additional 20 MHz of Spectrum Available for Advanced Wireless Services" in TLJ Daily E-Mail Alert No. 975, September 13, 2004. See, extension notice in the Federal Register, November 30, 2004, Vol. 69, No. 229, at Pages 69572 - 69573.

Monday, January 10

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in Charles Crawford v. FCC, No. 04-1031. Judges Randolph, Tatel and Garland will preside. Location: Prettyman Courthouse, 333 Constitution Ave., NW.

12:15 - 4:30 PM. The American Enterprise Institute (AEI) will host an event titled "China and the Global Economic Recovery". The speakers will be Anne Krueger (International Monetary Fund), Randal Quarles (Treasury Department), Pieter Bottelier (SAIS, Johns Hopkins University), Jeffrey Frankel (Harvard University), Morris Goldstein (Institute for International Economics), John Makin (AEI), Li Shantong (China Development Research Center), and Desmond Lachman (AEI). See, notice. Location: AEI, 12th Floor, 1150 Seventeenth Street, NW.

5:30 - 7:00 PM. Tamar Jacoby (Manhattan Institute) will give a lecture titled "Immigration Reform: Politics and Prospects". See, notice. Location: American Enterprise Institute (AEI), 12th Floor, 1150 17th St., NW.

Deadline to submit to the Federal Communications Commission (FCC) petitions to deny the applications of NextWave Telecom and Cellco Partnership dba Verizon Wireless for FCC approval of their proposed transfer of control of broadband Personal Communications Services (PCS) licenses from NextWave to Cellco. See, FCC notice [4 pages in PDF]. This notice is DA 04-3873 in WT Docket No. 04-434.

Effective date of the Federal Communications Commission's (FCC) final rule regarding the former ITFS, MDS, and MMDS. The FCC adopted its Report and Order at its June 10, 2004 meeting. The FCC released the text on July 29, 2004 (FCC 04-135), and then released a modified item on October 29, 2004 (FCC 04-258). This is WT Docket 03-66. See, notice in the Federal Register, December 10, 2004, Vol. 69, No. 237, at Pages 72019 - 72047. See also, story titled "FCC Adopts RO & NPRM Re ITFS/MDS Band" in TLJ Daily E-Mail Alert No. 916, June 11, 2004.

Deadline to submit comments to the Federal Communications Commission's (FCC) in response to the further notice of proposed rulemaking (FNPRM) portion of its Report and Order and FNPRM regarding the former ITFS, MDS, and MMDS, now named the Broadband Radio Service (BRS) and the Educational Broadband Service (EBS), in the 2496-2690 MHz band. The FCC adopted this item at its June 10, 2004 meeting. The FCC released the text on July 29, 2004 (FCC 04-135), and then released a modified item on October 29, 2004 (FCC 04-258). This is WT Docket 03-66. See, notice in the Federal Register, December 10, 2004, Vol. 69, No. 237, at Pages 72019 - 72047. See also, story titled "FCC Adopts RO & NPRM Re ITFS/MDS Band" in TLJ Daily E-Mail Alert No. 916, June 11, 2004.

End of voluntary negotiation period for determining the royalty fees for analog signals to be paid by satellite carriers under the satellite carrier compulsory license. See, Copyright Office's notice in the Federal Register, December 30, 2004, Vol. 69, No. 250, at Pages 78482 - 78483.

Suggested deadline to submit comments to the Office of the U.S. Trade Representative (USTR) regarding the European Community's complaint to the World Trade Organization (WTO) regarding the Jobs Act, which replaced the Foreign Sales Corporation and Extraterritorial Income (FSC/ETI) tax regimes. See, notice in the Federal Register, January 3, 2005, Vol. 70, No. 1, at Pages 135-136.

Tuesday, January 11

10:00 AM. The U.S. Court of Appeals (FedCir), Panel C, will hear oral argument in Rates Technology v. Nortel Networks (No. 04-1212). and Phonometrics v. Hospitality International (No. 04-1318). See, FedCir calendar. Location: Courtroom 402, 717 Madison Place, NW.

10:00 AM. The U.S. Court of Appeals (FedCir), Panel D, will hear oral argument in Israel Bio-Engineering v. Amgen (Nos. 04-1153 and 04-1301) and In Re Fujimura (No. 04-1244). See, FedCir calendar. Location: Courtroom 203, 717 Madison Place, NW.

12:00 NOON - 1:30 PM. The Federal Communications Bar Association (FCBA) International Telecommunications Committee will host a brown bag lunch. The topic will be "An Overview of the World Bank's E-Development Policy Goals for Assisting Developing Countries to Integrate Information and Communication's Technologies (ICT) into the Development Agenda". The speakers will be Rob Stephens (World Bank) and Nagy Hanna (World Bank). No RSVP required. Location: AT&T, Suite 1000, 1120 20th St., NW.

1:00 - 4:00 PM. The Department of Homeland Security's (DHS) National Infrastructure Advisory Council (NIAC) will hold a meeting. It is open to the public. See, notice in the Federal Register, December 27, 2004, Vol. 69, No. 247, at Pages 77259 - 77260. See also, story titled "DHS's National Infrastructure Advisory Council Meeting to Cover Cyber Security" in TLJ Daily E-Mail Alert No. 1045, December 28, 2004. Location: Hamilton Crowne Plaza, 14th & K Streets, NW.

2:00 - 4:00 PM. The WRC-07 Advisory Committee's Informal Working Group 5: Regulatory Issues will meet. The FCC notice [PDF] states also that "Non-U.S. citizens desiring to attend this meeting must pre-clear 24 hours in advance by providing their name, country of citizenship, and company name to Sharon Neuner at: sharon.c.neuner @boeing.com." Location: Boeing Company, 1200 Wilson Blvd., Arlington, VA.

2:00 - 4:00 PM. The Department of State's International Telecommunication Advisory Committee (ITAC) will meet to prepare for the International Telecommunications Union's ITU-T Study Group 3 (tariff and accounting principles) meeting. See, the ITU's calendar of meetings. See, notice in the Federal Register, December 20, 2004, Vol. 69, No. 243, at Page 76027. For more information, including the location, contact Julian Minard at minardje@state.gov. Location: undisclosed.

TIME? There will be a meeting of the Executive Office of the President's (EOP) Office of Science and Technology Policy's (OSTP) National Science and Technology Council's (NSTC) Committee on Technology's Nanoscale Science, Engineering and Technology Subcommittee. The meeting is closed to the public. For more information, contact Geoff Holdridge at 703 292-4532. Location: undisclosed.

Deadline to register for the National Institute of Standards and Technology (NIST) half day meeting on January 19 to discuss policy, privacy, and security issues associated with Homeland Security Presidential Directive-12, titled "Common Identification Standard for Federal Employees and Contractors." To register, contact Sara Caswell at Sara.caswell@nist.gov or 301 975-4634. See, notice [PDF].

Wednesday, January 12

RESCHEDULED FOR JANUARY 26. The Federal Communications Commission (FCC) will hold a Broadband PCS Spectrum Auction. This is Auction No. 58. See, notice [3 pages in PDF].

10:00 AM. The U.S. Court of Appeals (FedCir), Panel E, will hear oral argument in Frazier v. Roessel Cine Photo Tech (No. 04-1060). See, FedCir calendar. Location: Courtroom 402, 717 Madison Place, NW.

10:00 AM. The U.S. Court of Appeals (FedCir), Panel F, will hear oral argument in NEC Solutions v. U.S (No. 04-1085), Chantelle v. De Millus Comercio (No. 04-1289), and Shock-Tek v. Trek Bicycle Corporation (04-1324). See, FedCir calendar. Location: Courtroom 203, 717 Madison Place, NW.

12:00 NOON - 2:00 PM. The Progress and Freedom Foundation (PFF) will host a luncheon. The featured speaker will be Robert Kahn, President of the Corporation for National Research Initiatives (CNRI). He will discuss digital object architecture and information management on the internet. See, notice and registration page. Media queries should be directed to Patrick Ross at 202 289-8928 or pross@pff.org. Other queries should be directed to Brooke Emmerick at 202 289-8928 or bemmerick@pff.org. Location: Mandarin Oriental Hotel, 1330 Maryland Ave., SW.

1:30 - 3:30 PM. The WRC-07 Advisory Committee's Informal Working Group 2: Satellite Services and HAPS will meet. See, FCC notice [PDF]. Location: Leventhal Senter & Lerman, 2000 K St., NW, 7th Floor Conference Room.

Thursday, January 13

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

10:00 AM. The U.S. Court of Appeals (FedCir), Panel H, will hear oral argument in Checkpoint Systems v. All Tag Security (No. 04-1395) and Bayer AG v. Housey Pharmaceuticals (No. 04-1403). See, FedCir calendar. Location: Courtroom 402, 717 Madison Place, NW.

10:00 AM. The U.S. Court of Appeals (FedCir), Panel I, will hear oral argument in Pause Technology v. Tivo (No. 04-1263). See, FedCir calendar. Location: Courtroom 203, 717 Madison Place, NW.

10:00 AM. The Antitrust Modernization Commission (AMC) will hold a public meeting. See, notice [PDF] in the Federal Register, December 7, 2004, Vol. 69, No. 234, at Page 70627. For more information, contact 202 2330701 or info@amc.gov. Location: Federal Trade Commission (FTC), Rooms A & B, 601 New Jersey Ave., NW.

12:00 NOON. The Federal Communications Bar Association's (FCBA) Mass Media Practice Committee and Cable Practice Committee will host a brown bag lunch. The topic will be the Federal Communications Commission's (FCC) Report and Order and FNPRM [54 pages in PDF] on the children's programming obligations of digital broadcasters. The speakers will be Barbara Kreisman (Chief of the FCC's Media Bureau's Video Division), Kim Matthews (FCC) and Mary Beth Murphy (FCC). See, story titled "FCC Adopts Report and Order Re Children's Programming Obligations of DTV Broadcasters" in TLJ Daily E-Mail Alert No. 975, September 13, 2004. RSVP to John Logan at jlogan@dlalaw.com by 12:00 NOON on Wednesday, January 12. Submit written questions for the speakers to Ann Bobeck at abobeck@nab.org by Tuesday, January 11. The deadline to submit comments to the FCC in response to the NPRM is March 1, 2005. The deadline for reply comments is April 1. Location: Dow Lohnes & Albertson, 8th Floor, 1200 New Hampshire Ave., NW.

TIME? The Department of Defense's (DOD) Defense Science Board Task Force on Global Positioning
System will meet. The agenda includes review of issues dealing with Galileo and other future radio navigation satellite systems. This meeting is closed to the public. See, notice in the Federal Register, December 10, 2004, Vol. 69, No. 237, at Page 71803. Location: Strategic Analysis Inc., 3601 Wilson Boulevard, Arlington, VA.

EXTENDED TO FEBRUARY 14. Deadline to submit comments to the Federal Communications Commission (FCC) in response to its Public Notice [4 pages in PDF] (DA 04-3891) of December 14, 2004 seeking comments on the report of Avatar Environmental, LLC regarding migratory bird collisions with communications towers. See, Public Notice [2 pages in PDF] (DA 04-4021) of December 22, 2004 extending deadlines. This proceeding is WT Docket No. 03-187.