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April 27, 2006, Alert No. 1,359.
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House Commerce Committee Approves COPE Act

4/26. The House Commerce Committee (HCC) amended and approved HR __, a yet to be introduced bill titled the "Communications Opportunity, Promotion, and Enhancement Act of 2006", or COPE Act. The final vote was 42 to 12. The HCC also rejected an amendment that would have expanded the network neutrality mandates in the bill, by a vote of 22 to 34.

All Republicans who voted, except Rep. Heather Wilson (R-NM), voted against the network neutrality amendment, and for final approval.

21 of 26 Democrats voted for the network neutrality amendment, and 15 of 26 voted for final approval.

Title I of the bill provides that certain cable operators may obtain a national cable franchise. The HCC approved a manager's amendment that contains numerous changes, but rejected numerous amendments offered by Democrats that would have imposed build out requirements, barred various forms of discrimination, and/or given more enforcement authorities to local governments. (The bill already contains anti-discrimination language.) These amendments failed on nearly straight party line votes, with Republicans unanimously opposing the amendments, and most, but not all, Democrats supporting the amendments.

The bill contains network neutrality language. Title II provides that the Federal Communications Commission (FCC) is authorized to enforce its August 2005 policy statement [3 pages in PDF] regarding network neutrality through case by case adjudicatory proceedings.

The HCC rejected an amendment offered by Rep. Ed Markey (D-MA) and others that would have imposed a more rigorous network neutrality mandate. It failed, as did a similar amendment during the Subcommittee markup session earlier this month.

The HCC's Subcommittee on Telecommunications and the Internet amended and approved the COPE Act on April 5, 2006. See, stories titled "House Subcommittee Approves COPE Act", "House Subcommittee Rejects Network Neutrality Amendment", and "Amendment by Amendment Summary of Subcommittee Mark Up of COPE Act" in TLJ Daily E-Mail Alert No. 1,344, April 6, 2006.

Proponents of a stricter network neutrality mandate made some progress between the Subcommittee and full Committee mark ups. On both votes all Republicans, except Rep. Wilson, supported the hard mandate amendments. On April 5, 7 of 13 Democrats voted for the amendment. On April 26, 21 of 26 Democrats voted for the amendment. Two Democrats who voted against the April 5 amendment voted for the April 26 amendment -- Rep. Eliot Engel (D-NY) and Rep. Bart Stupak (D-MI). Two Democrats who are members of the Subcommittee who did not vote on April 5 voted for the April 26 amendment -- Rep. Sherrod Brown (D-OH) and Rep. Bart Gordon (D-TN). Of the 11 Democrats who are members of the full Committee, but not the Telecom Subcommittee, all but one voted for the amendment on April 26 -- Rep. Gene Green (D-TX).

The bill also extends the E-911 regulatory regime to voice over internet protocol (VOIP) service. It also provides that state and local entities may provide any telecommunications, information or cable service.

TLJ anticipates publishing more detailed information about this mark up session in the Friday edition.

FCC to Consider CALEA Statute on May 3

4/26. The Federal Communications Commission (FCC) released an agenda [3 pages in PDF] for its event titled "Open Meeting", scheduled for Wednesday, May 3, 2006. This agenda includes consideration of further administrative amendments to the 1994 Communications Assistance for Law Enforcement Act (CALEA).

On August 5, 2005, the FCC adopted, but did not release, an Order and Further Notice of Proposed Rulemaking (FNPRM). That item provided that facilities based broadband service providers and interconnected VOIP providers are subject to requirements under the CALEA. 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.

The FCC's agenda for its May 3 event states that it "will consider a Report and Order and Memorandum Opinion and Order regarding implementation of the Communications Assistance for Law Enforcement Act". The FCC's agenda provides no details regarding the content of this item.

The FCC has scheduled consideration of this item for just two days before the date on which the Court of Appeals will hear oral argument in a challenge to the FCC's August 5, 2005 order.

On Friday, May 5, 2006, the U.S. Court of Appeals (DCCir) will hear oral argument in American Council on Education, et al. v. FCC and USA. See also, story titled "FCC CALEA Order Challenged" in TLJ Daily E-Mail Alert No. 1,240, Wednesday, October 26, 2005. See also, ACE brief [71 pages in PDF] and FCC brief [52 pages in PDF]. This oral argument will be held at 9:30 AM at the Prettyman Courthouse, 333 Constitution Ave., NW.

The FCC's August 5, 2005, order expanded the range of entities that are subject to CALEA requirements. However, it did not provide rules regarding what these entities must do. The order on the agenda for May 3, 2006, will likely provide some guidance regarding the technology mandates imposed upon broadband service providers and interconnected VOIP providers.

The FCC's event is scheduled for 9:30 AM on Wednesday, May 3, 2006 in the FCC's Commission Meeting Room, Room TW-C305, 445 12th Street, SW. The event will be webcast by the FCC. The FCC does not always consider all of the items on its published agenda. The FCC sometimes adds items to the agenda without providing the "one week" notice required 5 U.S.C. 552b. The FCC does not always start its monthly meetings at the scheduled time. The FCC usually does not release at its meetings copies of the items that its adopts at its meetings.

The FCC's agenda also includes several other items.

It will consider a Declaratory Ruling and Notice of Proposed Rulemaking regarding interoperability of Video Relay Service. This is CG Docket No. 03-123. It will also consider a Further Notice of Proposed Rulemaking regarding fraudulent use of the internet based forms of Telecommunications Relay Service. This too is CG Docket No. 03-123.

Finally, the FCC will consider two requests for review of decisions of the Universal Service Administrator regarding the FCC's e-rate subsidy program.

Portman Says There Will Be A Seamless Transition at USTR

4/25. Outgoing U.S. Trade Representative (USTR) Rob Portman held a news conference. See, transcript [14 pages in PDF]. He talked about his replacement, Susan Schwab, transition at the Office of the USTR, and the Doha round negotiations.

Robert PortmanBush has nominated Portman (at right) to be Director of the Office of Management and Budget (OMB). He has not yet been confirmed by the Senate.

He said that "In the mean time I will be very engaged on the USTR issues including Doha. What is very fortunate for the United States trade agenda is that Susan Schwab was in place and she's fully conversant on all the issues including Doha. Some of you remember seeing her in Hong Kong. She handled the services sector issues in Hong Kong. She also has handled the general Doha responsibilities back here where Peter Algeier handles them in Geneva. Peter is our ambassador in Geneva, chief negotiator in Geneva. Peter will also stay. Karan will also stay, who is the other deputy. So Susan had Europe, the Americas, and a lot of topical areas and some Doha responsibility and the Middle East. Then Karan had and still will have Africa, Asia and so on. So it really is going to be a seamless transition. We will not miss a beat at USTR."

He also said that "The United States has been and will continue to be totally committed to an ambitious result. We believe this should occur across the board from domestic support to reductions in tariffs and all goods from computers to corn."

People and Appointments

4/26. President Bush named Tony Snow to be his press secretary. He replaces Scott McClellan. See, White House release.

4/26. Jason Oxman will join the Law Media Group, a public policy consulting firm, on Monday, May 1. He is currently SVP for Legal and International Affairs at CompTel.

More News

4/26. The House approved HR 5020, the "Intelligence Authorization Act for Fiscal Year 2007", by a vote of 327-96. See, Roll Call No. 108.

4/26. The Government Accountability Office (GAO) released a report [21 pages in PDF] titled "Export Promotion: Trade Promotion Coordinating Committee's Role Remains Limited".

4/26. The Progress and Freedom Foundation (PFF) published the transcript [30 pages in PDF] of its March 24, 2006, panel discussion titled "The White Space: What to Do With It". This program addressed the use of smart technology to allow advance wireless services to operate in the white spaces of the broadcast bands. The FCC has a open rulemaking proceeding. See, story titled "FCC Adopts NPRM Regarding Unlicensed Use of Broadcast TV Spectrum" in TLJ Daily E-Mail Alert No. 898, May 14, 2004. This NPRM is FCC 04-113 in ET Docket Nos. 04-186 and 02-380.

Highlights of Federalist Society's
Telecommunications Federalism Conference
May 3
9:30 AM. Keynote speech by John Engler (National Association of Manufacturers).
11:15 - 11:45 AM. Panel titled "Franchising: Is it Time for Reform?". The speakers will be Thomas Hazlett (George Mason University School of Law), John Kneuer (acting head of the National Telecommunications and Information Administration), Kyle McSlarrow (head of the National Cable & Telecommunication Association), and former Rep. David McIntosh (Mayer Brown Rowe & Maw).
12:00 NOON - 1:30 PM. Panel titled "The Role of Public Utility Commissions". The speakers will be Kathleen Abernathy (Akin Gump Strauss Hauer & Feld), Larry Landis (Indiana Utility Regulatory Commission), Dianne Munns (Iowa Utilities Board), Connie Murray (Missouri Public Service Commission), and Gregory Sopkin (Colorado Public Utilities Commission).
1:30 - 2:00 PM. Closing speech.
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Washington Tech Calendar
New items are highlighted in red.
Thursday, April 27

The House will meet at 10:45 AM for legislative business.

The Senate will meet at 9:30 AM for morning business. It will then resume consideration of HR 4939, the "Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, and Hurricane Recovery, 2006".

SHORTENED TO ONE DAY (APRIL 26). Day two of a two day meeting of the Department of Commerce's (DOC) Bureau of Industry and Security's (BIS) Information Systems Technical Advisory Committee. The BIS regulates exports. The agenda includes "VOIP Networks". See, notice in the Federal Register, April 13, 2006, Vol. 71, No. 71, at Page 19164. For more information, contact Yvette Springer at 202-482-4814. Location: Hoover Building, Room 3884, 14th and Pennsylvania Ave., NW.

9:00 AM. The House Judiciary Committee's (HJC) Subcommittee on Courts, the Internet, and Intellectual Property will hold a hearing titled "Patent Harmonization". The witnesses will be Todd Dickinson (General Electric Company), Robert Armitage (Eli Lilly and Company), Gary Mueller (Digital Now, Inc.), and Pat Choate (author of Hot Property: The Stealing of Ideas in an Age of Globalization). See, notice. The hearing will be webcast by the HJC. Press contact: Jeff Lungren or Terry Shawn at 202-225-2492. Location: Room 2141, Rayburn Building.

9:30 - 11:30 AM. The House Science Committee will hold a hearing on HR 5143, the "H-Prize Act of 2006". The purpose of this bill is to incent technological innovation by providing for the government to give monetary awards to businesses, universities, and individuals that innovate. It would apply only to hydrogen energy technologies. Location: Room 2318, Rayburn Building.

9:30 AM. The Senate Judiciary Committee (SJC) may hold an executive business meeting. The agenda includes consideration of the nominations of Randy Smith (to be a Judge of the U.S. Court of Appeals for the 9th Circuit), Brett Kavanaugh (U.S. Court of Appeals for the DC Circuit), Michael Ryan Barrett (U.S.D.C. for the Southern District of Ohio), Brian Cogan (U.S.D.C. for the Eastern District of New York), and Thomas Golden (U.S.D.C. for the Eastern District of Pennsylvania). The agenda also includes consideration of several bills, including S 2453, the "National Security Surveillance Act of 2006", S 2455, the "Terrorist Surveillance Act of 2006", and S 2468, a bill to provide standing for civil actions for declaratory and injunctive relief to persons who refrain from electronic communications through fear of being subject to warrantless electronic surveillance for foreign intelligence purposes. See, notice. The SLJ rarely follows its published agenda. The SJC frequently cancels or postpones hearings without notice. Press contact: 202-224-5225. Location: Room 226, Dirksen Building.

10:00 AM. The House Appropriations Committee's Subcommittee Science, the Departments of State, Justice, and Commerce, and Related Agencies will hold a hearing on the budget for the Securities and Exchange Commission (SEC). Location: Room 309, Capitol Building.

11:00 AM. The House Financial Services Committee's Subcommittee on Domestic & International Monetary Policy, Trade and Technology will hold a hearing titled "CFIUS and the Role of Foreign Direct Investment in the United States". Location: Room 2128, Rayburn Building.

11:00 AM - 12:00 NOON. The Federal Communications Commission's (FCC) Advisory Committee for the 2007 World Radiocommunication Conference (WRC-07 Advisory Committee) will meet. See, notice in the Federal Register, March 1, 2006, Vol. 71, No. 40, at Page 10530. Location: FCC, 445 12th Street, SW., Room TW-C305.

2:15 PM. Day one of a two day conference hosted by the American Enterprise Institute (AEI) titled "Federal Preemption: Law, Economics, and Politics". See, notice. Press contact: Veronique Rodman at 202-862-4870 or VRodman at aei dot org. Location: AEI, 12th floor, 1150 17th St., NW.

3:00 - 4:00 PM. The National Science Foundation's (NSF) National Science Board will hold a closed meeting to discuss vacancies. See, notice in the Federal Register, April 12, 2006, Vol. 71, No. 70, at Page 18779.

5:15 PM. Deadline to submit to the U.S. International Trade Commission (USITC) post-hearing statements and briefs regarding the probable economic effects of the proposed U.S.-Republic of Korea Free Trade Agreement. (The hearing is scheduled for April 20.) See, notice in the Federal Register, February 28, 2006, Vol. 71, No. 39, at Pages 10066-10067.

6:00 - 9:15 PM. The DC Bar Association will host a continuing legal education (CLE) seminar titled "How to Protect and Promote Your Client's Artwork and Commercial Images". The speakers will include Allison Cohen (attorney) and Laura Possessky (Gura & Possessky). 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.

Deadline to submit comments to the Library of Congress's Copyright Office regarding its proposed fee increases, to take effect on July 1, 2006. See, notice in the Federal Register, March 28, 2006, Vol. 71, No. 59, at Pages 15368-15371.

Deadline to submit initial comments to the Federal Communications Commission (FCC) regarding pulver.com's and Evslin's petition [18 pages in PDF] for a rulemaking regarding number porting in emergencies. See, FCC notice [PDF] and story titled "Pulver Asks FCC to Require Greater Number Porting in Emergencies" in TLJ Daily E-Mail Alert No. 1,329, March 14, 2006.

Friday, April 28

The Republican Whip Notice states that "there are no votes expected in the House".

9:00 AM. Day two of a two day conference hosted by the American Enterprise Institute (AEI) titled "Federal Preemption: Law, Economics, and Politics". At 9:00 AM, there will be a panel titled "Modern Preemption Regimes: Financial and Network Industries". The speakers will be Randy Picker (University of Chicago law school), Richard Epstein (University of Chicago law school), and Judge Douglas Ginsburg (U.S. Court of Appeals for the District of Columbia). Picker focuses on technology and network industries (see, SSRN author page), while Macey focuses on financial industries. See, notice. Press contact: Veronique Rodman at 202-862-4870 or VRodman at aei dot org. Location: AEI, 12th floor, 1150 17th St., NW.

10:00 AM. The Center for Democracy & Technology (CDT) will host an event. The CDT notice states that this is a "press-only breakfast briefing" regarding "prospects for technology-related legislation", including "privacy, electronic copyright, data security, government wiretapping and ``network neutrality," and other topics. The speakers, all from the CDT, will be Jerry Berman, Leslie Harris, Jim Dempsey, Ari Schwartz, Nancy Libin, John Morris, Paula Bruening, and David Sohn. Breakfast will be served. RSVP to David McGuire at dmcguire at cdt dot org or 202- 637 9800 x106. Location: CDT, 1634 I Street, NW, 11th floor.

10:00 - 11:30 AM. The Brookings Institution will host a panel discussion titled "U.S. Competitiveness in the 21st Century". The speakers will be Bruce Mehlman (former Assistant Secretary of Commerce), Susan Hockfield (President of Massachusetts Institute of Technology), Bernard Schwartz (former Ch/CEO of Loral Space & Communications), Strobe Talbott (President of Brookings), and Lael Brainard (VP of the Global Economy and Development Center). Register online or by calling 202-797-6105. Location: Brookings, 1775 Massachusetts Ave., NW.

Extended deadline to submit comments to the Library of Congress's (LOC) Section 108 Study Group in response to the LOC's notice in the Federal Register regarding, among other topics, expanding the scope of 17 U.S.C. 108. See, notice in the Federal Register, February 15, 2006, Vol. 71, No. 31, at Pages 7999-8002.

Deadline to submit comments to the National Institute of Standards and Technology (NIST) regarding its draft [33 pages in PDF] of its "Special Publication (SP) 800-89: Recommendation for Obtaining Assurances for Digital Signature Applications".

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to ENUM LLC's petition for limited waiver to allow it to obtain North American Numbering Plan (NANP) numbering resources. See, FCC notice [PDF].

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to AT&T's April 7 petition for a limited waiver of section 61.42(g) of the FCC's rules so that it may exclude True IP to PSTN (TIPToP) service from any price cap basket in the upcoming 2006 annual access tariff filing. See, FCC notice [PDF].

Extended deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its notice of proposed rulemaking (NPRM) regarding privacy of consumer phone records. See, notice in the Federal Register, March 15, 2006, Vol. 71, No. 50, at Pages 13317-13323. See also, notice of extension [PDF]. The FCC adopted this NPRM on February 10, 2006, and released the text [34 pages in PDF] on February 14, 2006. See, story titled "FCC Adopts NPRM Regarding Privacy of Consumer Phone Records" in TLJ Daily E-Mail Alert No. 1,308, February 13, 2006, and story titled "FCC Rulemaking Proceeding on CPNI May Extend to Internet Protocol Services" in TLJ Daily E-Mail alert No. 1,310, February 15, 2006. This NPRM is FCC 06-10 in CC Docket No. 96-115 and RM-11277.

Monday, May 1

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Tegic Communications, Inc. v. Board of Regents of the University of Texas. The U.S. District Court (WDWash) dismissed Tegic's complaint seeking a declaration that its software for hand held devices does not infringe the UT's U.S. Patent No. 4,674,112. The Court held that ii lacks subject matter jurisdiction because of 11th Amendment Immunity. See, Order Granting Motion to Dismiss [PDF]. See also, collection of pleadings and other documents. This case is App. Ct. No. 2005-1553 and D.C. No. C05-0723L. Location: Courtroom 203, 717 Madison Place, NW.

12:00 NOON - 2:00 PM. The DC Bar Association will host a panel discussion titled "An Overview of Health Information Technology: Challenges and Opportunities". The speakers will include Mark Mantooth (Department of Health and Human Services), William Braithwaite (eHealth Initiative), Benjamin Butler (Crowell & Moring), and Robyn Diaz (MedStar Health). The price to attend ranges from $15-25. For more information, call 202-626-3463. See, notice. Location: D.C. Bar Conference Center, 1250 H Street NW, B-1 Level.

2:00 PM. The U.S. Court of Appeals (FedCir) will hear oral argument in Competitive Technologies v. Fujitsu. This case is App. Ct. No. 2005-1237. Location: Courtroom 201, 717 Madison Place, NW.

2:00 PM. The U.S. Court of Appeals (FedCir) will hear oral argument in Technology Licensing v. Thomson. This case is App. Ct. No. 2005-1562. Location: Courtroom 201, 717 Madison Place, NW.

Tuesday, May 2

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in All Computers v. Intel. This case is App. Ct. No. 2005-1271. Location: Courtroom 201, 717 Madison Place, NW.

1:30 - 5:30 PM. The National Commission on Libraries and Information Science (NCLIS) will hold a closed meeting. See, notice in the Federal Register, April 21, 2006, Vol. 71, No. 77, at Page 20732. Location: National Library of Medicine, Conference Room B, NIH Building 38, Room 2S04, 8600 Rockville Pike, Bethesda, MD.

Day one of a four day conference hosted by the Association for Computing Machinery titled "16th Annual Conference on Computer, Freedom and Privacy". See, conference web site. Location: L'Enfant Plaza Hotel.

Wednesday, May 3

9:30 AM - 2:00 PM. The Federal Society will host an event titled "Telecommunications Federalism Conference". RSVP to 202- 822-8138 to RSVP. Attendance if free. However, CLE participation costs $25. Lunch will be served. See, notice and registration page. Location: Capitol Hill Club, 300 1st Street, SE.

9:30 AM. The Federal Communications Commission (FCC) will hold an event titled "Open Meeting". See, agenda [3 pages in PDF].

10:00 AM. The House Commerce Committee's (HCC) Subcommittee on Commerce, Trade, and Consumer Protection will hold a hearing titled "Digital Content and Enabling Technology: Satisfying the 21st Century Consumer". See, notice. Press contact: Larry Neal (Barton) at 202 225-5735 or Paul Flusche (Stearns) at 202 225-5744. The hearing will be webcast by the HCC. Location: Room 2123, Rayburn Building.

10:00 AM - 12:00 NOON. The Department of State's (DOS) International Telecommunication Advisory Committee (ITAC) will meet to prepare for the ITU Plenipotentiary Conference 2006 on November 6-24, 2006, in Ankara, Turkey. See, notice in the Federal Register, March 29, 2006, Vol. 71, No. 60, at Page 15798. Location: __.

TIME? The Office of the U.S. Trade Representative (USTR) will hold a hearing on the proposed free trade agreement (FTA) between the U.S. and Malaysia. The USTR seeks comments and testimony on "electronic commerce issues", "trade-related intellectual property rights issues", "barriers to trade in services", and other topics. See, notice in the Federal Register, March 22, 2006, Vol. 71, No. 55, at Pages 14558-14559. Location: __.

Day two of a four day conference hosted by the Association for Computing Machinery titled "16th Annual Conference on Computer, Freedom and Privacy". See, conference web site. Location: L'Enfant Plaza Hotel.

Thursday, May 4

2:00 - 4:00 PM. The Department of State's International Telecommunication Advisory Committee will meet to prepare for meetings of the Organization for Economic Co-operation and Development (OECD) WPIE and CISP committee meetings of May 29-31, 2006. See, notice in the Federal Register, April 19, 2006, Vol. 71, No. 75, at Pages 20153-20154. Location: Room 2533, Harry Truman Building, 2201 C Street, NW.

Extended deadline to submit comments to the U.S. Patent and Trademark Office (USPTO) in response to its notice of proposed rulemaking (NPRM) regarding changes to certain rules affecting practice before the Trademark Trial and Appeal Board. See, notice in the Federal Register, March 27, 2006, Vol. 71, No. 58, at Pages 15097-15098.

Day three of a four day conference hosted by the Association for Computing Machinery titled "16th Annual Conference on Computer, Freedom and Privacy". See, conference web site. Location: L'Enfant Plaza Hotel.