12/6. The U.S. Court of Appeals (DCCir) issued its opinion [34 pages in PDF] in ABA v. FTC, holding that the Federal Trade Commission (FTC) exceeded its statutory authority when it asserted that the privacy provisions of the Gramm Leach Bliley Act (GLBA) extend to lawyers and law firms.

Introduction. The opinion is both broad and blunt. It is broad both because it entirely rejects the FTC's application of the GLBA privacy provisions to lawyers, and because it concludes that FTC's interpretation amounts to an impermissible attempt to regulate lawyers.

The opinion is blunt in its criticism of the FTC's actions and reasoning. It describes the FTC's actions as an "attempted turf expansion" to "regulate the practice of law".

It states that the FTC "apparently assumed -- without reasoning -- that it could extend its regulatory authority over attorneys engaged in the practice of law with no other basis than the observation that the Act did not provide for an exemption."

The opinion is 34 pages. However, almost half of this is merely a recitation of the relevant portion of the statute. The Court of Appeals wrote that it recited the statutory language, "not because it is all in itself relevant, but in order to demonstrate the depths plumbed by the Commission in order to find authority to undertake the regulation of the practice of law".

The opinion also admonishes the FTC that the Congress does not "hide elephants in mouseholes".

Statute. The Congress passed the Financial Modernization Act of 1999, Pub. L. No. 106-102, 113 Stat. 1338 (1999), which is better known as the Gramm Leach Bliley Act or GLB, to enable financial institutions, such as banks and insurance companies, to associate. Since this process provides financial institutions with increased access to the personal financial information of customers, the Congress included provisions intended to protect financial privacy.

The GLB Act's privacy provisions apply only to "financial institutions". The definition does not reference law firms or lawyers. The entire legislative history is almost devoid of reference to lawyers. Moreover, lawyers are already subject to client confidentiality rules, and state regulation. Nevertheless, the FTC asserts that the statute and its implementing rules extend the GLB privacy provisions to lawyers.

District Court. The New York State Bar Association (NYSBA) and the ABA both filed complaints against the FTC in the District Court, and many state bar associations have filed amicus curiae briefs in support. The bar associations sought declaratory relief that the FTC exceeded its statutory authority in promulgating and interpreting rules that extend the GLB privacy provisions to lawyers.

See also, story titled "Court Hears Arguments on Bar Associations' Challenges to FTC's Financial Privacy Rules" in TLJ Daily E-Mail Alert No. 673, June 4, 2003, and story titled "FTC Will Not Enforce GLB Rule Against Attorneys Pending Resolution of Court Challenge" in TLJ Daily E-Mail Alert No. 732, September 4, 2003.

The District Court granted summary judgment to the bar associations. The FTC brought this appeal.

Court of Appeals Analysis. The Court of Appeals affirmed.

The Court of Appeals wrote that "The statute certainly does not so plainly grant the Commission the authority to regulate attorneys engaged in the practice of law as to entitle the Commission to what is called a ``Chevron One´´ disposition. That is, rather simply we cannot hold that Congress has directly and plainly granted the Commission the authority to regulate practicing attorneys as the Commission attempts."

See, Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837 (1984).

"That is, to uphold the Commission's regulatory decision, we must conclude first that the words of the statute are ambiguous in such a way as to make the Commission's decision worthy of deference under the second step of Chevron. Id. at 843. If we so hold, we will then uphold the agency's interpretation of the ambiguous statute if that interpretation is ``permissible,´´ that is, if it is ``reasonable.´´"

Then, after a long analysis of the statute, and the FTC's arguments, the Court of Appeals concluded that there is no ambiguity.

It wrote that there is an "exceptionally poor fit with the FTC's apparent decision that Congress, after centuries of not doing so, has suddenly decided to regulate the practice of law. This fit is helped but little, if at all, by the congressional definition of ``financial institution´´ as ``an institution the business of which is engaging in financial activity.´´"

It added that "An attorney, or even a law firm, does not fit very neatly into the niche of a ``financial institution.´´ Even if one concedes -- and it is quite a concession -- that Congress would have intended the word ``institution´´ to include an attorney, or even a law firm, it still requires quite a stretch to conclude that such an institution is a ``financial institution.´´"

But, the Court of Appeals continued that even if it were to find ambiguity in the statute for the purposes of extending Chevron deference, the FTC fails the second part of the Chevron test -- reasonableness of the agency's interpretation.

The Court of Appeals wrote that "It is undisputed that the regulation of the practice of law is traditionally the province of the states. Federal law ``may not be interpreted to reach into areas of State sovereignty unless the language of the federal law compels the intrusion.´´ City of Abilene v. FCC, 164 F.3d 49, 52 (D.C. Cir. 1999). Otherwise put, ``if Congress intends to alter the `usual constitutional balance between the States and the Federal Government,´ it must make its intention to do so `unmistakably clear in the language of the statute.´ ´´"

See, opinion of the D.C. Circuit in City of Abilene v. FCC., a case regarding 47 U.S.C. § 253(a), which provides that "No State or local statute or regulation, or other State or local legal requirement, may prohibit or have the effect of prohibiting the ability of any entity to provide any interstate or intrastate telecommunications service."

Vincent Buzard, President of the New York State Bar Association, stated in a release that "We are gratified by the decision. Our rules of ethics already provide more protection for our clients than the GLBA would by imposing additional regulations on attorneys. Requiring lawyers to send notices to clients outlining their privacy or information policies was unnecessary and illogical -- and burdensome and confusing to clients. The FTC overstepped its authority in a way that has no rational purpose and the appellate court was correct in rejecting and overturning this policy."

This case is American Bar Association v. FTC, and consolidated case, U.S. Court of Appeals for the District of Columbia, App. Ct. Nos. 04-5257 and 04-5258, appeals from the U.S. District Court for the District of Columbia, D.C. Nos. 02cv00810 and 02cv01883, Judge Reggie Walton presiding. Judge Sentelle wrote the opinion of the Court of Appeals, in which Judge Ginsburg joined. The third member of the panel was John Roberts, who recused himself, and is now Chief Justice of the United States.

12/6. Earl Comstock, the CEO of Comptel, and officers of over fifty of its member companies, wrote a letter [PDF] to Rep. Joe Barton (R-TX), the Chairman of the House Commerce Committee (HCC), and Rep. John Dingell (D-MI), the ranking Democrat, regarding proposed telecom reform legislation.

The letter states that "the proposed schedule for marking up the bill in subcommittee this month leaves insufficient time to develop needed changes". The signers urge the HCC leaders to "postpone the markup".

The signers also identify the topics that are complex and require more time. "They include the fact that the proposed legislation would subject providers who use both circuit-switching and packet switching to two overlapping and conflicting regulatory regimes; how to balance the non-discrimination principles of net neutrality with legitimate network management needs; and how to modify the existing cable regime with respect to two-way IP based video services."

They added that "further changes to the legislation are needed to ensure that interconnection continues to occur and that local loops and special access remain available to competitors as provided under the FCC’s rules today. These are difficult issues to wrestle with and many Members we have met with have expressed a desire to have more time to understand the effects of the draft legislation and any amendments."

12/6. The U.S. Chamber of Commerce's National Chamber Litigation Center (NCLC), named Joaquin Carbonell to be the Chair of its Board of Directors. He is EVP and General Counsel of Cingular Wireless. He replaces William Barr, EVP and General Counsel of Verizon Communications. See, release.

12/6. Meyer Eisenberg, the Securities and Exchange Commission's (SEC) Deputy General Counsel and acting Director of the Division of Investment Management, will retire from the SEC in January of 2006. He will become Visiting Professor of Law at Willamette University College of Law in Salem, Oregon. See, SEC release.

12/6. Michele Layne was named an Associate Regional Director for Enforcement in the Securities and Exchange Commission's (SEC) Pacific Regional Office. This office is located in Los Angeles, California. It handles enforcement for southern California, Arizona, Nevada, Hawaii, Oregon, Washington, Idaho, Montana, and Alaska. She replaces Sandra Harris, who has left the SEC. The other leader of this office is Briane Mitchell. See, SEC release.

12/6. The House Rules Committee adopted a closed rule for consideration of HR 4340, the "United States-Bahrain Free Trade Agreement Implementation Act".

12/6. The Association of American Universities (AAU), Association of Research Libraries (ARL), Association of American University Presses (AAUP), and Association of American Publishers (AAP) wrote a guide [36 pages in PDF] titled "Campus Copyright Rights & Responsibilities: A Basic Guide to Policy Considerations". See also, AAU release [PDF] and AAP release.

12/5. The National Telecommunications Cooperative Association's (NTCA) Foundation for Rural Service (FRS) wrote, but did not publicly release, a paper titled "Demystifying VoIP: Rural America’s Connection to the IP -- Enabled National Telecommunications Network". For more information, contact Caitlin Colligan at 703 351-2086 or ccolligan at ntca dot org.

12/2. The Department of Justice (DOJ) filed a Certificate of Compliance with the U.S. District Court (DC) in US v. Ecast and NSM. On September 2, 2005, the DOJ's Antitrust Division announced that it filed a complaint in District Court against NSM Music Group Ltd. and Ecast Inc. alleging violation of federal antitrust law in connection with their agreement under which NSM agreed not to enter the U.S. market with a digital jukebox to compete with Ecast. The DOJ simultaneously announced that it has reached a settlement with NSM and Ecast under which the two companies will terminate their non-compete agreement. See also, story titled "DOJ Requires NSM and Ecast to End Digital Jukebox Non-Compete Agreement" in TLJ Daily E-Mail Alert No. 1,209, September 8, 2005. This is D.C. No. 1:05CV01754.

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Notices & Disclaimers
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The House will meet at 10:00 AM for legislative business. It may consider several non-technology related items under suspension of the rules. It may also consider, pursuant to a rule, HR 4340, the "United States-Bahrain Free Trade Agreement Implementation Act". See, Republican Whip Notice.

The Senate will next meet on Monday, December 12, 2005.

8:00 AM - 11:00 AM. The DC Bar Association's Intellectual Property Law Section will host a panel discussion titled "Trademark Office Speaks". The speakers will include Lynne Beresford (Commissioner for Trademarks), Sharon Marsh (Deputy Commissioner for Trademark Examination Policy), and David Sams (Chief Administrative Trademark Judge, Trademark Trial and Appeal Board). The price to attend ranges from $25-$40. For more information, call 202 626-3463. See, notice. Location: Cosmos Club, 2121 Massachusetts Ave., NW.

8:30 AM - 5:00 PM. Day two of a two day meeting of the National Institute of Standards and Technology's (NIST) Information Security and Privacy Advisory Board (ISPAB). The agenda includes the following items: (1) Privacy Act framework effort, (2) status reports on ISPAB work plan items, (3) briefing on NIST Next Generation Internet Protocol (IPv6), (4) briefing on NIST National Vulnerability Database Project, (5) NTIA Information Security Outreach Briefing, and (6) discussion of NIST's Cryptographic Hash Function Workshop. See, notice in the Federal Register, November 18, 2005, Vol. 70, No. 222, at Pages 69953 - 69954. Location: Doubletree Hotel and Executive Meeting Center, 1750 Rockville Pike, Rockville, MD.

10:00 AM. The House Judiciary Committee's (HJC) Subcommittee on Courts, the Internet, and Intellectual Property (CIIP) will hold an oversight hearing titled "International IPR Report Card -- Assessing U.S. Government and Industry Efforts to Enhance Chinese and Russian Enforcement of Intellectual Property Rights". The hearing will be webcast by the HJC. Press contact: Jeff Lungren or Terry Shawn at 202 225-2492. Location: Room 2141, Rayburn Building.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in MIT v. Abacus Software, No. 05-1142, an appeal from the U.S. District Court (EDTex) in a patent infringement case involving image editing software. Location: Courtroom 203, 717 Madison Place, NW.

8:00 AM - 6:00 PM. The Department of Commerce and the EU will jointly host an event titled "EU-US Safe Harbor". At 12:00 NOON Maureen Cooney (acting Chief Privacy Officer of the DHS) will speak on complying with data privacy legislation in multiple jurisdictions. Location: Department of Commerce, 14th St. & Constitution Ave., NW, Room 6057.

3:00 - 5:00 PM. The Brookings Institute will host a panel discussion titled "Software and Law: Is Regulation Fostering or Inhibiting Innovation?" The speakers will be Emery Simon (Business Software Alliance), Brian Kahin (Computer and Communications Industry Association), Daniel Ravicher (Public Patent Foundation), Kenneth Dam (Brookings), and Ben Clemens (Brookings). Location: Brookings, 1775 Massachusetts Ave., NW.

3:30 - 5:30 PM. The American Enterprise Institute (AEI) will host a panel discussion titled "Antitrust and the New Economy: Transatlantic Turmoil". The speakers will be Makan Delrahim (Brownstein Hyatt & Farber), Richard Epstein (University of Chicago law school), and Robert Pitofsky (Georgetown law school). See, notice. Location: AEI, Twelfth floor, 1150 17th St., NW.

4:00 - 7:00 PM. The Progress and Freedom Foundation (PFF) will host an event titled "DACA USF Conference". The PFF's Digital Age Communications Act (DACA) project is in the process of developing draft legislation. One of the topics that it is examining is Universal Service Fund (USF) reform. The keynote speaker will be Sen. John Sununu (R-NH), a member of the Senate Commerce Committee. There will be a panel presentation by the PFF's DACA Universal Service Working Group. The presenters will be Ray Gifford (PFF), Adam Peters (Kamlet Shepherd & Reichert), Michael Riordan (Columbia Business School), Robert Atkinson (Columbia Institute for Tele-Information), and Jerry Ellig (Mercatus Center, George Mason University). Then there will be a panel of industry representatives will provide reaction. The panelists will be Jonathan Askin (General Counsel, Pulver.com), Bob Blau (BellSouth), David Cohen (US Telecom), Gary Lytle (Qwest), John Nakahata (Harris Wiltshire & Grannis), and Joe Waz (Comcast). See, notice and registration pages. Location: Thornton Room, Hyatt Regency Capitol Hill, 400 New Jersey Ave., NW.

7:00 PM. The Progress and Freedom Foundation (PFF) will host a "holiday gala" that will include "libations". The PFF invites not only supporters of "telecom reform", but also "erstwhile advocates for commons, mandated ``openness´´ and regulatory interventions". Location: Thornton Room, Hyatt Regency Capitol Hill, 400 New Jersey Ave., NW.

TIME? The Securities and Exchange Commission (SEC) will hold a presolicitaion conference regarding the draft RFP [154 pages in PDF] for remaking the SEC's Electronic Data Gathering, Analysis, and Retrieval (EDGAR) Platform. See also, SEC release, draft RFP cover letter [PDF], and story titled "SEC Seeks Contractor to Remake EDGAR" in TLJ Daily E-Mail Alert No. 1,259, November 23, 2005. Location: __.

The Federal Communications Commission (FCC) will begin its Multichannel Video Distribution and Data Service (MVDDS) auction (Auction No. 63). See, notice in the Federal Register, September 15, 2005, Vol. 70, No. 178, at Pages 54541 - 54555.

The House will meet at 10:00 AM for legislative business. It may consider several non-technology related items under suspension of the rules. It may also consider, pursuant to a rule, HR 4340, the "United States-Bahrain Free Trade Agreement Implementation Act". See, Republican Whip Notice.

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in CTIA v. FCC, No. 05-1008. This is a petition for review of the final order of the Federal Communications Commission (FCC) that adopted the "Nationwide Programmatic Agreement Regarding the Section 106 National Historic Preservation Act Review Process", which regulates tower and antenna construction. This order is FCC 04-222 in WT Docket No. 03-128. At issue is whether the FCC has authority under Section 106 of the NHPA, which is codified at 16 U.S.C. § 470f, to write these rules. See, stories titled "FCC Announces NPRM Regarding Communications Facilities and the National Historic Preservation Act" in TLJ Daily E-Mail Alert No. 677, June 10, 2003, and "FCC Adopts Report and Order Re FCC Licensing and the National Historic Preservation Act" in TLJ Daily E-Mail Alert No. 975, September 13, 2004. See also, brief [PDF] of the FCC. Judges Tatel, Garland and Griffith will preside. Location: Courtroom 20, Prettyman Courthouse, 333 Constitution Ave., NW.

9:30 AM. The Business Software Alliance (BSA) and International Data Corporation (IDC) will hold a news conference to announce and describe its report titled "Global Economic Impact Study on Piracy Reduction". The speakers will include Chris Israel, Deputy Assistant Secretary for Technology Policy at the Department of Commerce. Location: Peter Lisagor Room, National Press Club, 529 14th Street N.W., 13th Floor.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Inpro II Licensing v. T-Mobile USA, No. 05-1233. Location: Courtroom 201, 717 Madison Place, NW.

The Federal Communications Bar Association (FCBA) will host an event titled "19th Annual Chairman's Dinner". Location: Washington Hilton Hotel.

The House may meet. See, Republican Whip Notice.

RESCHEDULED FROM DECEMBER 15. 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). December 9 is Commissioner Kathleen Abernathy's last day at the FCC.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Semitool v. Dynamic Micro Devices, No. 05- 1299. Location: Courtroom 201, 717 Madison Place, NW.

11:00 AM - 12:00 NOON. The Advisory Committee for the 2007 World Radiocommunication Conference will meet. See, notice and agenda [PDF] and notice in the Federal Register, October 19, 2005, Vol. 70, No. 201, at Pages 60840 - 60841. Location: FCC, Commission Meeting Room, TW-C305, 445 12th Street, SW.

Deadline to submit initial comments to the Office of the U.S. Trade Representative (USTR) regarding the operation, effectiveness, and implementation of and compliance with (1) the World Trade Organization (WTO) agreements affecting market opportunities for telecommunications products and services of the U.S., (2) the telecommunications provisions of the North American Free Trade Agreement (NAFTA), (3) the U.S. free trade agreements (FTAs) with Chile, Singapore, and Australia, and (4) any other FTAs coming into effect by January 1, 2006. See, notice in the Federal Register, November 16, 2005, Vol. 70, No. 220, at Pages 69621 - 69622.

Deadline for the U.S. Trade Representative (USTR) to submit to the Congress is annual report on the People's Republic of China's compliance with its World Trade Organization (WTO) commitments. See, Section 421 of the U.S.-China Relations Act of 2000, Public Law No. 106-286).

The Senate will return from its Thanksgiving recess at 2:00 PM.

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in EchoStar Satellite v. FCC, 04-1304. The proceeding pertains to an order of the Federal Communications Commission (FCC) adopting rules implementing the Satellite Home Viewer Extension and Reauthorization Act of 2004, which is now Public Law No. 108-447. See, brief [PDF] of the FCC. Judges Tatel, Garland and Griffith will preside. Location: Prettyman Courthouse, 333 Constitution Ave., NW.

12:15 PM. The Federal Communications Bar Association's (FCBA) Mass Media Practice Committee will host a brown bag lunch titled "Meet the Trade Press". For more information, contact Ann Bobeck at abobeck at nab dot org. Location: National Association of Broadcasters (NAB), 1771 N St. NW.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to the notice of proposed rulemaking (NPRM) portion of the Order and FNPRM that provides that facilities based broadband service providers and interconnected VOIP providers are subject to requirements under the 1994 Communications Assistance for Law Enforcement Act (CALEA). See, public notice [2 pages in PDF] and notice in the Federal Register, October 13, 2005, Vol. 70, No. 197, at Pages 59704 - 59710. The FCC adopted, but did not release, this item at its August 5, 2005, meeting. See, story titled "FCC Amends CALEA Statute" in TLJ Daily E-Mail Alert No. 1,191, August 9, 2005. The FCC released the text [59 pages in PDF] of this item on September 23, 2005. It is FCC 05-153 in ET Docket No. 04-295 and RM-10865.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to the notice of proposed rulemaking (NPRM) regarding the the specific relocation procedures applicable to Broadband Radio Service (BRS) operations in the 2150-2160/62 MHz band, which the FCC previously decided will be relocated to the newly restructured 2495-2690 MHz band. The FCC also seeks comment on the specific relocation procedures applicable to Fixed Microwave Service (FS) operations in the 2160-2175 MHz band. This NPRM is FCC 05-172 in ET Docket No. 00-258. See, notice in the Federal Register, October 26, 2005, Vol. 70, No. 206, at Pages 61752 - 61762.

Deadline to submit initial comments to the Federal Communications Commission (FCC) regarding the petition for declaratory ruling (DR) filed by Grande Communications that seeks a DR regarding the treatment of traffic terminated through Grande to end users of interconnected local exchange carriers (LECs), in circumstances where customers of Grande have certified that the traffic originated in Internet protocol (IP) format. See, notice in the Federal Register, November 2, 2005, Vol. 70, No. 211, at Pages 66411 - 66412. See also, story titled "FCC Sets Comment Deadlines for DR Petition on IP Originated VOIP Traffic and Intercarrier Compensation" in TLJ Daily E-Mail Alert No. 1,246, November 3, 2005. This proceeding is WC Docket No. 05-283.

10:00 AM. The Senate Commerce Committee (SCC) will hold a hearing on the nominations of Deborah Tate and Michael Copps to be members of the Federal Communications Commission (FCC). Press contact: Melanie Alvord (Stevens) at 202 224-8456, Aaron Saunders (Stevens) at 202 224-3991, or Andy Davis (Inouye) at 202 224-4546. The hearing will be webcast by the SCC. See, notice. Location: Room 106, Dirsksen Building.

12:15 PM. The Federal Communications Bar Association's (FCBA) Legislation and IP-Based Communications Practice Committees will host a brown bag lunch titled "Legislative Reform Affecting IP-Based Services". RSVP to Wendy Parish at wendy at fcba dot org. Location: Verizon Wireless, 1300 Eye Street, NW, Suite 400 West.

1:00 PM. The House Commerce Committee's (HCC) Subcommittee on Oversight and Investigations will hold a hearing titled "Safety of Imported Pharmaceuticals: Strengthening Efforts to Combat the Sales of Controlled Substances Over the Internet". The hearing will be webcast by the HCC. Location: Room 2123, Rayburn Building.

2:30 PM. The Senate Commerce Committee (SCC) will hold a business meeting. Press contact: Melanie Alvord (Stevens) at 202 224-8456, Aaron Saunders (Stevens) at 202 224-3991, or Andy Davis (Inouye) at 202 224-4546. Location: Room 106, Dirsksen Building.

6:00 - 9:15 PM. The DC Bar Association will host a continuing legal education (CLE) seminar titled "2005 Intellectual Property Law Review Series, Part 1: Copyright, Trademark and Internet Update". The speakers will include Brian Banner (Banner & Witcoff), Beckwith Burr (Wilmer Cutler), and Terence Ross (Gibson Dunn & Crutcher). The price to attend ranges from $70-$125. For more information, call 202 626-34638. See, notice. Location: D.C. Bar Conference Center, 1250 H Street NW, B-1 Level.

6:00 -8:15 PM. The DC Bar Association will host a continuing legal education (CLE) seminar titled "2005 Intellectual Property Law Review Series, Part 2: Patent Law Update". The speakers will include Bradley Wright (Banner & Witcoff) and Eric Wright (Morgan & Finnegan). The price to attend ranges from $70-$125. For more information, call 202 626-3488. See, notice. Location: D.C. Bar Conference Center, 1250 H Street NW, B-1 Level.