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December 14, 2005, 8:00 AM, Alert No. 1,272.
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House to Vote On PATRIOT Act Extension Bill

12/13. The House Rules Committee adopted by voice vote a rule for consideration of the conference report on HR 3199, the "USA PATRIOT Improvement and Reauthorization Act of 2005". See, full text of the conference report [219 pages in PDF]. The body of the rule is as follows: "Resolved, That upon adoption of this resolution it shall be in order to consider the conference report to accompany the bill (H.R. 3199) to extend and modify authorities needed to combat terrorism, and for other purposes. All points of order against the conference report and against its consideration are waived."

Consideration of conference reports is also governed by House Rule XXII. The Rules Committee has also published a web page titled "Committees of Conference and Consideration of Conference Reports" that summarizes conference procedure.

Basically, conference reports cannot be amended, debate is limited to one hour, and only points of order and a motion to recommit to the conference committee are in order. However, in this case, the Rules Committee's rule, if approved by the House, waives all points of order.

The House could vote on the conference report as early as Wednesday afternoon, December 14, 2005. One House Judiciary Committee (HJC) staff member told TLJ that consideration would likely begin at about 12:00 NOON on Wednesday.

Rep. James Sensenbrenner (R-WI), the Chairman of the HJC, Rep. Peter King (R-NY), the Chairman of the House Homeland Security Committee, and Attorney General Alberto Gonzales held a news conference on Tuesday afternoon, December 13, to urge approval of the conference report.

The Electronic Privacy Information Center (EPIC) held a news conference on Tuesday morning regarding Department of Justice (DOJ) implementation of the PATRIOT Act. The EPIC has submitted, and litigated, Freedom of Information Act (FOIA) requests for records regarding this topic. It has also commented upon, and published, the records that it has obtained. See, the EPIC's web section titled "Freedom of Information Documents on the USA PATRIOT Act".

The EPIC's Marc Rotenberg argued that some things revealed by recently acquired FBI documents raise new questions about implementation of Section 215 of the PATRIOT Act (regarding access to business records, including library records, under the FISA). He continued that "the Patriot Act should not be renewed until these questions are answered. Some members of the Senate have proposed a temporary extension, not a renewal, to ensure that a bill with better safeguards is adopted. We believe this is a sensible approach and we hope that it is followed." See, prepared statement [5 pages in PDF].

Senate Commerce Committee Holds Hearing on Nominations of Tate and Copps

12/13. The Senate Commerce Committee (SCC) held a hearing on the nominations of Deborah Tate and Michael Copps to be members of the Federal Communications Commission (FCC). Copps is a current members who has been nominated for another term. Tate is a member of the Tennessee Regulatory Authority. No member of the SCC expressed opposition or criticism of either nominee.

Sen. Ted Stevens (R-AK), the Chairman of the SCC, stated at the conclusion that he hoped to have both nominees confirmed by the Senate this year. He stated to reporters after the hearing that "we're going to figure out a way to get them to the floor as quickly as possible".

The agenda for the SCC's business meeting on Thursday, December 15, had included consideration of both nominees. However, on Tuesday evening, the full Senate approved a unanimous consent request to discharge the SCC from further consideration of both nominees. The eliminates the need for a SCC vote. The nominations are now on the calendar for the full Senate.

Stevens also stated to reporters after the hearing that he has not heard of any objections to the nominations of either Copps or Tate.

Deborah TateAt Tuesday's hearing, Tate (at left) was asked little, and she said less. She read a brief prepared statement. She said that she will be a "be a voice for families and consumers", and that she will "work closely with Congress".

When asked about indecency, she said that she would "get back with you".

She told Sen. Stevens that she has a background as a mediator, and that she will try to employ her skills "to bring consensus with the industry".

She gave personal responses to some substantive questions. When asked about universal service support, she spoke about the time her grandmother in rural Tennessee got her first telephone. She also spoke about being the mother of three, and her experiences in Tennessee.

Sen. Inouye asked how e-rate funds should be distributed. She said that "we want the funds to be spent well". Sen. Stevens asked if she had "formed an opinion about universal service". She said "what an incredible program ... to provide telephone service to all Americans at affordable prices", and "I am very supportive of universal service".

Sen. John Sununu (R-NH) spoke at length about several issues, including reforming universal service, and limiting FCC regulation of VOIP service providers. However, he mainly articulated his views to Tate and Copps, and Sen. Stevens and Sen. Inouye, rather than sought the views of the nominees.

Commissioner Copps also came with a prepared statement, most of which he read.

He again complained about the state of media concentration, and the FCC's media ownership rules. He spoke about indecency and violence. And, he advocated less transparency at the FCC.

One reporter stated to Sen. Stevens after the hearing that "she and her husband own cable and telecom stocks", and asked "Does she have to divest those or do something?" Sen. Stevens responded, "That's up to the IG of the FCC, not us."

Stevens also stated to reporters after the hearing that he was at the White House earlier in the morning and that he raised the subject of nominating a replacement for Kathleen Abernathy, who just left the FCC. He said, "Well, we're working on it. That was the response. That’s exactly what it was."

Sen. Lamar Alexander (R-TN) introduced and praised Tate, who previously worked for him when he was the Governor of Tennessee. Rep. Bart Gordon (D-TN), a senior member of the House Commerce Committee, attended the hearing, but did not testify, except to say "Amen" to Sen. Alexander's introduction.

FCC Commissioner Jonathan Adelstein attended the hearing, but did not testify.

Copps and Stevens Advocate Less Transparency at FCC

12/13. Federal Communications Commission (FCC) Commissioner Michael Copps testified at a Senate Commerce Committee (SCC) hearing on his renomination to the FCC. He argued that Congressional legislation regarding telecommunications regulation reform should exempt the FCC from the statutory requirement that federal agencies conduct their meetings in public.

Sen. Ted Stevens (R-AK), the Chairman of the SCC, has on several occasions this year supported this proposal. Sen. Stevens asked Copps for his priorities for items to be included in the "Communications Act of '06".

Copps listed three items, universal service reform, limitations on media ownership concentration, and exempting the FCC from the open meetings requirement. Sen. Stevens responded that "we intend to address that last question".

Michael CoppsCopps (at right) argued that since the Roman Catholic Church's College of Cardinals in Rome, Italy, is not required to comply an open meetings requirement in its selection of a new Pope, the FCC should not be bound either.

He stated that "We have an open meeting act that precludes more than two Commissioners from ever sitting down and meeting together to decide issues. Nobody else works that way, that I know of. Congress doesn't work that way. The Court doesn't work that way. Even my Catholic Church, the Cardinals get together and select the new Pope. So, if it is good enough for Congress, and good enough for the Courts, and good enough for holy mother church, it ought to be good enough for the Federal Communications Commission."

Commission Copps is incorrect in his statement that there is "an Open Meeting Act that precludes more than two Commissioners from ever sitting down and meeting together to decide issues". The FCC Commissioners are not precluded from holding meetings. They are only precluded from holding secret meetings.

The relevant statute, which is codified at 5 U.S.C. § 552b, requires that federal agencies must hold their meetings in public, and that they must give notice "at least one week before the meeting, of the time, place, and subject matter of the meeting".

The statute further provides that "deliberations of at least the number of individual agency members required to take action on behalf of the agency" constitutes a meeting.

While the FCC Commissioners cannot by law meet in secret, nothing in the statute prohibits them from conducting deliberations through a series of communications relayed through their staff members, or other direct means. The FCC's response to the statute is not to hold public meetings, but rather to conduct little business in public, and use other means to reach decisions. This lessens the transparency of the FCC's activities and operations.

Deborah Tate, who also testified at this hearing, may have disclosed her views about providing the public with information about the activities, proceedings and rules of the FCC. After the hearing had concluded, numerous reporters who write about the FCC introduced themselves to Tate. Most handed her their business card. As she turned to leave, she handed the stack of reporters' business cards to someone from the FCC press office.

Washington Tech Calendar
New items are highlighted in red.
Wednesday, December 14

The House will meet a 10:00 AM for legislative business. It may consider the conference report on HR 3199, the "USA PATRIOT Improvement and Reauthorization Act of 2005". See, full text of the conference report [219 pages in PDF]. See, Republican Whip Notice.

The Senate will meet at 9:45 AM for morning hour. It will then consider motions to instruct the conferees on S 1932, the budget reconciliation bill.

10:00 AM. The Securities and Exchange Commission (SEC) will hold an open meeting. See, agenda. Location: SEC, Room L-002, 100 F St., NE.

11:00 AM. The Senate Finance Committee will hold a hearing on several nominations, including those of David Spooner to be Assistant Secretary of Commerce for Import Administration, and David Bohigian, to Assistant Secretary of Commerce, Market Access and Compliance. Location: Room 215, Dirksen Building.

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.

Day one of a two day conference hosted by Comptel titled "COMPTEL Executive Business & Policy Summit". FCC Chairman Kevin Martin will give a luncheon address on December 14. See, notice. Location: Washington Capital Hilton.

Thursday, December 15

The House will meet a 10:00 AM for legislative business. It may consider the conference report on HR 3199, the "USA PATRIOT Improvement and Reauthorization Act of 2005". See, full text of the conference report [219 pages in PDF]. See, Republican Whip Notice.

10:00 AM. The Senate Commerce Committee will hold a business meeting. The agenda includes consideration of S 1608, the "Undertaking Spam, Spyware, and Fraud Enforcement With Enforcers Beyond Borders Act of of 2005 (U.S. SAFE WEB Act). See, notice. 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, Dirksen Building.

10:00 AM. The Internal Revenue Service (IRS) will hold a public hearing on its notice of proposed rulemaking (NPRM) regarding the source of income derived from international communications activity. See, notice in the Federal Register, September 19, 2005, Vol. 70, No. 180, at Pages 54859 - 54878. Location: Auditorium, Internal Revenue Building, 1111 Constitution Ave., NW.

Day two of a two day conference hosted by Comptel titled "COMPTEL Executive Business & Policy Summit". See, notice. Location: Washington Capital Hilton.

Friday, December 16

The House may meet for legislative business at 9:00 AM. See, Republican Whip Notice.

9:00 - 11:00 AM. The Federal Communications Commission's (FCC) Network Reliability and Interoperability Council (NRIC) will meet. The agenda includes discussion of "E911 issues, final recommendations for next generation E911 architectures and transition issues, new best practices for improving the reliability of E911 networks and services, target network architectures for communications with emergency services personnel, and best practices for network security". See, FCC notice [PDF]. Location: FCC, Commission Meeting Room, 445 12th Street, SW.

Saturday, December 17

The House may meet for legislative business. See, Republican Whip Notice.

Monday, December 19

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its notice of proposed rulemaking regarding its rules affecting Wireless Radio Services. This item is FCC 05-144 in WT Docket Nos. 03-264. The FCC adopted this item on July 22, 2005. It released the text [67 pages in PDF] on August 9, 2005. See, notice in the Federal Register, October 19, 2005, Vol. 70, No. 201, at Pages 60770 - 60781.

Deadline to submit comments to the Securities and Exchange Commission (SEC) regarding improving 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.

Software Pirate Pleads Guilty

12/13. Nathan Peterson pled guilty in U.S. District Court (EDVa) to two counts of criminal copyright infringement in violation of 17 U.S.C. § 506(a)(1) and 18 U.S.C. § 2319(b)(1), in connection with his sale over the internet of pirated software. See, Plea Agreement [15 pages in PDF].

The Statement of Facts [8 pages in PDF], signed by Peterson, states that "Beginning as early as April 2003 and continuing until February 2005, the Defendant operated a website with the domain name The Defendant’s website offered copies of software products for sale that were created and copyrighted by companies such as Microsoft Corporation, Adobe Systems, Inc., Sonic Solutions, Symantec Corporation, and Macromedia Inc. at prices substantially below the suggested retail price." It adds that "The Defendant had total copyrighted software sales of $5,402,448 during the time period of April 2003 to February 2005."

Paul McNulty, the U.S. Attorney for the Eastern District of Virginia, stated in a release [PDF] that "One of the Department's highest priorities is to prosecute those who commit crimes on the Internet. The defendant's website was the largest for-profit software piracy site ever shut down by law enforcement. It clearly demonstrates our resolve to prosecute thieves who sell other people's property on the Internet."

On October 21, 2005, President Bush announced his intent to nominate McNulty to be the Deputy Attorney General. This is the number two position at the Department of Justice (DOJ). See, White House release. See also, story titled "Bush Picks Paul McNulty to Be Deputy Attorney General" in TLJ Daily E-Mail Alert No. 1,238, October 24, 2005.

The Plea Agreement also provides for forfeiture of various items, including computer equipment and software. It also provides for the forfeiture of Peterson's pickup truck, Corvette, Mercedes, and 1949 Mercury Coupe.

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