|Senate Banking Committee Holds Hearing on
10/6. The Senate Banking
Committee held a hearing titled "A Review of the CFIUS Process for
Implementing the Exon-Florio Amendment". The secretive
Foreign Investments in the U.S. (CFIUS) is the instrument by which the
federal government blocks foreign investment in, and acquisition of, certain
Sen. Richard Shelby (R-AL), the
Chairman of the Committee, wrote in his
opening statement that "improvements are needed". He said that the
Government Accountability Office's (GAO)
testimony "suggests that implementation of the Exon-Florio amendment may not
protect national security". He added that "The Treasury Department may believe
that the process is sufficiently transparent as it currently exists. This is the
United States Senate committee with jurisdiction over the process in question,
and we most certainly do not agree."
The GAO's Katherine Schinasi wrote in her
prepared testimony [PDF]
that "in light of differing views among Committee members about the scope of
Exon-Florio -- specifically, what defines a threat to national security, we have
suggested that Congress should consider amending Exon-Florio to more clearly
emphasize the factors that should be considered in determining potential harm to
She noted, for example, that some CFIUS member agencies, including the
Department of the Treasury, "apply a more traditional and narrow definition of
what constitutes a threat to national security -- that is, (1) the U.S. company
possesses export-controlled technologies or items; (2) the company has
classified contracts and critical technologies; or (3) there is specific
derogatory intelligence on the foreign company." In contrast, other CFIUS
members, including the Department of Defense and the Department of Justice,
"argue that acquisitions should be analyzed in broader terms. According to
officials from these departments, vulnerabilities can result from foreign
control of critical infrastructure, such as control of or access to information
traveling on networks."
She also wrote that "to provide more transparency and facilitate
congressional oversight, we are suggesting that the Congress may want to revisit
the criterion for reporting circumstances surrounding cases to the Congress.
Currently, the criterion is a presidential decision. However, there have only
been two such decisions since 1997 and thus only two reports to Congress".
|Cogent and Level 3 Have Peering
10/7. Cogent Communications issued a
release regarding its peering dispute with
Level 3 Communications. Cogent states that Level 3 turned off its internet
backbone peering connection with Cogent.
Cogent CEO Dave Schaeffer stated in the release that "We feel this situation
can easily be resolved without more impact to the customers of either company.
The seriousness of the situation has been made abundantly clear, and for the
sake of Internet users, Level 3 should turn the connection back on and both
parties should sit down at the table to discuss the situation."
He added that "Cogent is willing to offer Level 3 free Internet service
across our network to help alleviate their financial situation while also
discussing appropriate traffic ratios. Cogent feels allegations of inappropriate
traffic ratios have been incorrectly articulated by Level 3. In fact, it is
Level 3 who requested that Cogent send more traffic across their network since
Level 3 charges by the bit, and increased traffic flow helps them financially."
He concluded that "Cogent's connection to Level 3 remains open, on and ready to
accept their traffic. There is no situation that prevents them from turning on
the connection other than a mindset that is willing to sacrifice customer
connectivity at this specific point in time. Cogent feels that Internet users
deserve better treatment while this situation is ironed out. That is why Cogent
is appealing directly to Level 3 single-homed customers and offering them one
year of free, dedicated Internet access to provide them with access to the full
Internet, not just the Level 3 portion of it. This offer bypasses the problem,
helps the customer attain full access to the Internet and eliminates the
roadblock to Cogent's portion of the Internet. Cogent has already had
significant success with this offer and will continue to make it available as
long as the peering connection remains turned off by Level 3."
There are no statutory requirements affecting the negotiation of peering or
interconnection agreements among internet backbone providers. In contrast,
telecommunications carriers have long been required to interconnect with other
carriers, and regulators have authority to mandate interconnection, and imposed
terms, included prices.
There are legislative proposals to impose an interconnection requirement upon
internet backbone providers. For example, on September 15, 2005, the
House Commerce Committee's (HCC)
discussion draft [77 pages in PDF] of a bill to regulate broadband internet
transmission services (BITS), voice over internet protocol (VOIP) services, and
broadband video services (BVS). It requires BITS providers to interconnect with
both other BITS providers and telecommunications carriers. See also,
"House Commerce Committee Releases Draft of Bill to Regulate Internet Protocol Services"
in TLJ Daily E-Mail Alert No. 1,216, September 19, 2005.
Even a legislative
proposal [46 pages in PDF] of the Progress and Freedom
Foundation (PFF), a group that usually advocates free markets, would create a government
imposed interconnection requirement. Its proposed legislative language provides that
"Unfair methods of competition in or affecting electronic communications
networks and electronic communications services, and unfair or deceptive
practices in or affecting electronic communications networks and electronic
communications services, are hereby declared unlawful."
It then provides that "unfair methods of competition means ... with respect
to interconnection, practices that pose a substantial and non-transitory risk to
consumer welfare by materially and substantially impeding the interconnection of
public communications facilities and services in circumstances in which the
Commission determines that marketplace competition is not sufficient adequately
to protect consumer welfare, providing that in making any such determination the
Commission must consider whether requiring interconnection will affect adversely
investment in facilities and innovation in services."
See also, story titled "PFF Project Recommends Making FCC More Like the FTC
and Antitrust Division" in
TLJ Daily E-Mail
Alert No. 1,157, June 20, 2005.
|4th Circuit Rules Dirty Dancing is not
10/7. The U.S. Court of Appeals (4thCir)
issued its opinion
[26 pages in PDF] in Willis v. Marshall, a First Amendment and Equal
Protection case involving government regulation of dirty dancing and women's wardrobes.
The courts hear many dancing cases. However, while most dancing cases involve municipal
efforts to regulate commercial establishments that stage dancers for prurient
purposes, this case involves a public forum for dancing by members of the
public. This is subject to a different legal analysis.
The small Town of
Marshall, in far western North Carolina, leased a former railroad depot for use as a
community center. It established Friday nights for music performances and dancing. The
public was invited. One Rebecca Willis was a regular. The Town was shocked. It said she
danced in a sexually provocative and indecent manner. And, she bent over while wearing
very short skirts. But, she said that she was merely an enthusiastic and flamboyant dancer,
who gyrated like Elvis Presley. And, whatever proprietary information she disclosed, she
Local newspaper accounts, but not the recitation of facts in the Court's opinion,
suggest another reason why the Town thought Willis's lack of cotton fabric so threatened
the Town's moral fabric -- she was 59 years old. The Board of Aldermen banished her,
but not her dancing partners, from further Town dances.
Perhaps in Willis's view, the Marshall's Board of Aldermen
functioned in a capacity not unlike that of the
Harper Valley PTA, or similarly situated federal regulators.
Stripped of her associational and expressive rights, she filed a complaint in
U.S. District Court (WDNC) under
42 U.S.C. § 1983, based upon state violations of her rights under the First Amendment,
the Equal Protection Clause, substantive due process, and other constitutional provisions.
The District Court granted summary judgment to the Town, and she appealed.
The unusual posture of Willis's case, a challenge to municipal regulation of indecent
dancing at a municipal forum established for the purpose of music and dancing, creates
analogies to government regulation of indecent broadcast content.
There are many conceptual similarities between the Town's regulation of
dancers, and government regulation of broadcast content. Radiofrequency spectrum
is owned by the government. Some spectrum is licensed, by the
Federal Communications Commission
(FCC), for among other purposes, broadcasting entertainment programming.
Moreover, the FCC regulates the content of programming by prohibiting
obscenity, indecency and profanity.
Also on October 7, the FCC issued a
release [PDF] announcing the publication of a new web site section. It is titled
"Regulation of Obscenity, Indecency and Profanity", or "ROIP",
which perhaps, rhymes with VOIP.
Similarly, the Town of Marshall owns or leases property for public purposes. It
allows certain property to be used at certain times for music and dancing. It too
regulates this music and dancing to prohibit obscenity, indecency and profanity.
Also, the Court of Appeals noted that the Town's Friday night events are "are
attended by community members of all ages", and "Community members were
concerned about their children being exposed to Willis's dancing". Similarly,
the Supreme Court noted that broadcast programming is "uniquely accessible to
FCC v. Pacifica Foundation, 438 U.S. 726 (1978), which is also known at
George Carlin's seven filthy words case.
Some of the cases relied upon by the Court of Appeals are cases involving FCC
v. Beach Communications, Inc., 508 U.S. 307 (1993) and
Sable Communications of
Cal., Inc. v. FCC, 492 U.S. 115 (1989).
On the other hand, this case differs from broadcast cases in one key aspect.
Willis was not performing for a broadcast audience. For example, she did not
dance in a Superbowl half time performance.
After 26 pages of legal gyrations, the Court took the position that Marshall
has not exposed itself to a First Amendment claim, for the reason that her dirty
dancing is not expressive conduct. It
first reasoned that "most forms of dance, whether ballet or striptease, when
performed for the benefit of an audience, are considered expressive conduct
protected by the First Amendment. ... Willis, however, was not a performer in
any meaningful sense -- she was simply dancing for her own enjoyment". It held
that her performance for the other citizens at the dance was not sufficient to
make her movements expressive.
Second, the Court reasoned that the
music performances were protected speech, and that Willis had a first amendment
right to listen, but this right did not extend to her dancing to the music.
Thus, it affirmed the summary judgment for the Town on the First
And since the Court found no protected expressive conduct in her dirty
dancing, it also held that there is no void for vagueness or
overbreadth claim, or violation of a First Amendment right of association. Thus,
even though the Town had no written rules, there is no vagueness problem,
because there is no underlying protected right.
The Court also rejected Willis's right to travel, substantive due process, and
procedural due process claims.
Finally, the Court addressed the Equal Protection claim. Since the Court
found no protected First Amendment or other constitutional rights involved, it
applied the lowest standard of review -- rational basis. This generally requires
only that the classification be rationally related to a legitimate governmental
interest. It then concluded that "a prohibition against lewd or suggestive dancing
at the Depot is unquestionably valid. The Town opened up the Depot for the Friday night
events to provide a venue for wholesome, family entertainment. Protecting children from
inappropriate sexual displays at the Depot is, at the very least, a legitimate
governmental interest. ... A ban on lewd or suggestive dancing is rationally
related to that interest. Accordingly, to the extent that Willis challenges the
Town's lewd dancing policy, that challenge fails."
However, the Equal Protection analysis did not end here. Willis had dancing
partners, with whom she was "on the floor, simulating sexual intercourse",
according to the Town. They were not banished. Hence, she may have been treated differently
from others with whom she was "similarly situated".
The District Court decided the case on summary
judgment after limited discovery. While there was evidence in the record that
people had complained about Willis's conduct, there was no evidence in the
record as to whether there were complaints against others. Hence, the Court concluded
the summary judgment on this issue was premature.
At bottom, it vacated and remanded on the Equal Protection claim. Yet, in the
future, the Town might prevail on an Equal Protection claim by banishing all
similarly situated dancers.
Under the Court's analysis, the outcome might have been vastly different if
Willis's bending over on the dance floor had been broadcast over the airwaves. In this
case, Willis's gyrating would arguably have been "performed for the benefit of an
audience", and thus been accorded First Amendment protection. And, this protection
would have extended to the broadcaster, and to her. Moreover, this might also have
elevated the Equal Protection analysis from rational basis to strict scrutiny,
and breathed life into the vagueness and overbreadth claims.
The Court's analysis is essentially that whether
purported expressive conduct is actually expressive for the purposes of the
First Amendment is not determined on the basis of the content of the expression,
or the mental state of the person making the expression. Rather, it is dependent
upon the nature of the audience. Dancing in front of the good citizens of Marshall is not
expressive conduct. Dancing on a stage in a strip joint, or on television, is
The Court did not address what would be the consequence if Willis, or anyone else,
brought a video camera and webcast or vodcast her gyrations.
|Washington Tech Calendar
New items are highlighted in red.
|Tuesday, October 11
1:30 - 4:30 PM. The Department of
Homeland Security's (DHS) National Infrastructure Advisory Council (NIAC)
will meet. The agenda includes presentations by John Chambers (Ch/CEO of
Cisco Systems) and Thomas Noonan (P/CEO of Internet
Security Systems). See,
notice in the Federal Register, September 2, 2005, Vol. 70, No. 170, at
Pages 52420 - 52421. Location: National Press Club, 529 14th St. NW, 13th Floor.
Day one of a two day conference hosted by the
National Institute of Standards and Technology
(NIST) and the Open Web Application Security Project
regarding the OWASP. See,
conference web site.
Location: NIST, Green Auditorium, 100 Bureau Drive, Gaithersburg, MD.
Deadline to submit comments to the
National Institute of Standards and Technology
(NIST) regarding proposed changes to Federal Information Processing Standard (FIPS)
Publication 201, titled "Standard for Personal Identity Verification of
Federal Employees and Contractors. See,
notice in the Federal Register, September 8, 2005, Vol. 70, No. 173, at
Pages 53346 - 53347.
|Thursday, October 13
11:00 AM - 12:00 PM. The President's
National Security Telecommunications
Advisory Committee (NSTAC) will hold a meeting by teleconference. The first part
of the meeting, which will be open to the public, will be a discussion of issues
related to Hurricane Katrina. The second part of the meeting, which will be closed
to the public, will be a discussion of the shutdown of cellular services in the tunnels
into and out of Manhattan following the terrorist attacks in London on July 7, 2005.
To participate, contact Elizabeth Hart at 703 289-5948 or hart_elizabeth at bah dot com
by 5:00 PM on Tuesday, October 11, 2005. See,
notice in the Federal Register, September 28, 2005, Vol. 70, No. 187, at
12:00 NOON - 2:00 PM. The
DC Bar Association will host a program titled
"New SEC Enforcement Director Speaks: Stay the Course or New Directions in SEC
Enforcement?". The speaker will be
Linda Thomsen (Director of the
SEC's Enforcement Division).
Larry Ellsworth (Jenner &
Block) will moderate. The price to attend ranges from $5-$10. For more information, call
202 626-3463. See,
Location: D.C. Bar Conference Center, 1250 H Street NW, B-1 Level.
2:00 - 4:00 PM. The Department of States' (DOS)
Telecommunication Advisory Committee (ITAC) will meet to prepare for ITU-T
Advisory Group. See,
notice in the Federal Register, July 13, 2005, Vol. 70, No. 133, at Page
40414. Location: undisclosed. The DOS states that "Access to these meetings
may be arranged by contacting Julian Minard at minardje at state dot gov.
Deadline to submit comments to the Interim Chief Copyright Royalty
Judge, on behalf of the Copyright Royalty Board, on the existence of controversies
to the distribution of the 2003 cable royalty fund. See,
notice in the Federal Register, September 13, 2005, Vol. 70, No. 176, at
Pages 53973 - 53974.
|Friday, October 14
5:00 PM. Deadline to submit comments to the
Office of the U.S. Trade Representative (USTR)
regarding its out of cycle reviews of Ukraine and Saudi Arabia. Section 182 of
the Trade Act of 1974 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. See,
notice in the Federal Register, September 8, 2005, Vol. 70, No. 173, at
Pages 53410 - 53412. See also, story titled "USTR Lifts Trade Sanctions on
Ukraine and Announces Special 301 Out of Cycle Review" in TLJ Daily E-Mail
Alert No. 1,205, September 1, 2005. See also,
notice in the Federal Register, September 14, 2005, Vol. 70, No. 177, at
Pages 54436 - 54437.
|Monday, October 17
12:00 NOON. Andrew Chin (
University of North Carolina Law School) will deliver a paper titled
"Artful Prior Art and the Quality of DNA Patents". This event is a part
of the George Washington University Law
School's (GWULS) intellectual property workshop series. RSVP by Tuesday, October
11, to Rosalie Kouassi at rkouassi at law dot gwu dot edu. Location: GWULS, Faculty
Conference Center, 5th Floor Burns, 716 20th St., NW.
12:15 PM. The Federal Communications
Bar Association's (FCBA) Mass Media Practice Committee will host a brown bag
lunch. The topic will be "Meet the Media Bureau Chief -- Donna Gregg".
No RSVP is requested. For more information, contact Ann Bobeck at abobeck at nab dot org.
Location: National Association of Broadcasters (NAB),
1771 N Street, NW.
2:00 PM. The Cato Institute will host
a panel discussion titled "Restoring Property Rights After Kelo v. New
London". The speakers will be Sen. John
Cornyn (R-TX), Roger Pilon (Cato), and John Echeverria (Georgetown Environmental
Law and Policy Institute). See,
notice and registration page. Cato will webcast the event. Lunch will be served
after the program. Location: Cato, 1000 Massachusetts Ave., NW.
|Bush Nominates Bohigian to Head Market
Access and Compliance
10/7. President Bush nominated David Steele Bohigian to be Assistant
Secretary of Commerce for Market Access and Compliance. If confirmed by the
Senate, he will replace William Lash, who has already resigned. See, White House
The Department of Commerce's (DOC) Market Access
and Compliance (MAC) office is one of many federal government offices that
is involved in seeking market access in foreign countries for U.S. firms and
individuals, and in pursuing compliance by foreign nations with their trade agreements.
He is currently Assistant to the Secretary and Director of Policy and
Strategic Planning at the DOC. In addition, a
[PDF] of the White House Office of Faith-Based and Community Initiatives states
that "David Bohigian was named Director of the Center for Faith-Based and
Community Initiatives at the Department of Commerce on July 16, 2004."
Before going to work in the Bush administration, he worked at
Idealab, a company that starts and operates
technology companies. Before that he worked at VenCatalyst, a company that he
founded, and which was acquired by Idealab. Before that, he worked for Jefferson
Partners. He also previously worked for former House Speaker Newt Gingrich
(R-GA). He is an attorney.
Federal Election Commission (FEC) records
show that a David S. Bohigian of Washington DC 20007 contributed $250 to Bush
Cheney (Primary) Inc. on March 24, 2004. FEC records also show that on March 24,
2004 a Mrs. Catherine C. Bohigian of Washington DC 20007 contributed $250 to
Bush Cheney (Primary) Inc. A
Bohigian is senior legal advisor to Federal Communications Commission
(FCC) Chairman Kevin Martin. She
works on media issues. Both Catherine Bohigian
and Kevin Martin previously worked in the Washington DC office of the law firm
of Wiley Rein & Fielding.
The Department of Commerce did not immediately return phone calls from TLJ
regarding the nomination.
|People and Appointments
10/7. President Bush announced the withdrawal of the nomination of Timothy
Flanigan to be Deputy Attorney General (DAG). Bush announced his intent to nominate
Flanigan on May 24, 2005. See, "People and Appointments" in
TLJ Dailly E-Mail
Alert No. 1,142, May 25, 2005. The Senate Judiciary Committee held a hearing
on his nomination in July. The previous was James Comey. See, White House
release. Bush has also had difficulty getting Alice Fisher confirmed
as Assistant Attorney General in charge of the
Criminal Division. Bush gave her a
recess appointment during the August Congressional recess. President Bush first
nominated Fisher back on March 29, 2005. See also, stories titled "Bush to
Nominate Alice Fisher to Head DOJ's Criminal Division"
TLJ Daily E-Mail
Alert No. 1,107, April 1, 2005; and "Recess Appointments in the August
Break" in TLJ Daily
E-Mail Alert No. 1,192, August 10, 2005.
10/7. President Bush announced the withdrawal of the nomination of Philip
Morrison to be an Assistant Secretary of the Treasury. See, White House
release. Bush nominated Morrison back on May 26, 2005. This is the tax
policy position, last held by Pam Olson. It has long sat vacant.
Greg Jenner was an acting assistant secretary for tax policy. On July
22, 2004, Bush announced his intent to nominate Jenner to be the
Assistant Secretary. See, White House
release. This position is significant because the person who holds this
position, at least nominally, is responsible for formulating policy with respect
to taxation that affects technology and innovation. However, the Bush
administration has tended to formulate tax policy in the Executive Office of the
President. This may be one reason why President Bush has had difficulties
obtaining nominees, and getting them confirmed, by the Senate.
10/7. President Bush nominated Susan Schwab to be Deputy United
States Trade Representative. She is the P/CEO of the University of Maryland Foundation,
Inc. and USM Vice Chancellor for Advancement. She has also been Dean of the
University of Maryland School of Public Policy. Earlier in her career, she
worked as a trade negotiator at the Department of Commerce, and for former Sen.
John Danforth (R-MO). She is the author of the 1994 book titled
Trade Offs: Negotiating the Omnibus Trade and Competitiveness Act [Amazon].
She has also worked for Motorola. See, White House
release, and USTR
10/7. President Bush nominated Eric Vitaliano to be a Judge of the
U.S. District Court for the Eastern District of
New York. Pursuant to bipartisan agreement that covers judicial appointments in
the state of New York, this is a pick by Sen. Charles
Schumer (D-NY). See, White House
release. See also, Sen. Schumer's
release of May 10, 2005.
10/7. President Bush nominated Antonio Fratto to be Assistant
Secretary of the Treasury for Public Affairs. He is currently the acting
Assistant Secretary of the Treasury for Public Affairs. See, White House
10/7. Secretary of the Treasury John Snow will visit Japan on October 10-11,
2005, and the People's Republic of China of October 12-18, 2005. See, Treasury
10/6. Anthony Wayne, Assistant Secretary for Economic and Business Affairs,
gave a speech in
Kiev, Ukraine, in which he discussed Ukraine's accession to the
World Trade Organization (WTO) and enforcement
of intellectual property rights.
|About Tech Law Journal
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