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August 31, 2006, Alert No. 1,442.
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Bush Renominates Five for Courts of Appeals

8/30. President George Bush today announced his intent to nominate five men to be Judges of the U.S. Court of Appeals for various circuits. See, White House release.

All are renominations of persons whose prior nominations have languished in the Senate. In each case, President Bush lacks the 60 votes necessary to end a filibuster by Senate Democrats, and Democrats lack the 51 votes necessary to defeat the nomination on the merits.

Certain interest groups, and Senate Democrats, oppose these nominees for their conservatism. However, in the case of William Myers and Randy Smith, there is also a dispute over regional distribution of Judges. Bush is attempting to place on the 9th Circuit one more Judge from the state of Idaho than certain critics think appropriate. Some Californians argue that the seat should go to a Californian.

William Myers. Bush again nominated William Myers to be a Judge of the U.S. Court of Appeals (9thCir). Liberal interest groups, such as People for the American Way (PFAW), oppose Myers because of their expectations as to how he would rule in environmental law cases. See, PFAW paper [21 pages in PDF] on Myers.

William Myers was previously Solicitor of the Department of the Interior. He has also worked for the National Lands Council and the National Cattlemen's Beef Association. He is also a veteran of prior judicial confirmation battles. He worked for former Sen. Alan Simpson (R-WO), who sat on the Senate Judiciary Committee, at the time of the Scalia and Rehnquist nominations in 1986, the Bork, Ginsburg and Kennedy nominations in 1987, and many contested Appeals Court nominations during the second Reagan administration. Then, he worked in the Department of Justice during the administration of the elder President Bush at the time of the Souter and Thomas nominations.

He is now of counsel to the law firm of Holland & Hart in Boise, Idaho. See also, H&H bio and Bush's July 20, 2004, statement in support of Myers.

Randy Smith. Bush again nominated Randy Smith to be a Judge of the U.S. Court of Appeals (9thCir). He is a state court judge in Idaho.

The Judge he is nominated to replace is Stephen Trott, whose state is debated. Trott was from California at the time of his appointment, but later moved to Idaho.

Terrence Boyle. Bush again nominated Terrence Boyle to be a Judge of the U.S. Court of Appeals (4thCir). He has been a Judge of the U.S. District Court (EDNC) since 1984. Bush first nominated him for the 4th Circuit in May of 2003. See also, PFAW paper [27 pages in PDF] on Boyle.

On April 13, 2005, the 4th Circuit issued its opinion [9 pages in PDF] in Directv v. Nicholas, reversing Judge Boyle's District Court judgment. This is a case regarding civil actions by satellite television providers against individuals who use pirate access devices to avoid paying for service. The Court of Appeals held that a satellite company may maintain an action for damages under 18 U.S.C. § 2520 against someone who has violated 18 U.S.C. § 2511. See, story titled "4th Circuit Rules DBS Providers Can Sue Pirates for Damages" in TLJ Daily E-Mail Alert No. 1,117, April 18, 2005.

William HaynesWilliam Haynes. Bush again nominated William Haynes (at right) to be a Judge of the U.S. Court of Appeals (4thCir). He is the General Counsel of the Department of Defense (DOD). Bush first nominated him in September of 2003. Haynes is opposed by some for his actions related to the war on terrorism, particularly with respect to the detention of enemy combatants.

He previously worked as a partner at the law firm of Jenner & Block and as a VP and Associate General Counsel at General Dynamics Corporation. See, DOD biography.

Michael Wallace. Bush again nominated Michael Wallace to be a Judge of the U.S. Court of Appeals (5thCir).

See also, story titled "Bush to Renominate 20 for Federal Judgeships" in TLJ Daily E-Mail Alert No. 1,044, January 27, 2004.

President Bush is doggedly supportive of these five nominees. Certain Senate Democrats are persistent in their opposition. However, there is very little in the record to suggest that Bush's support for any of these five is related to any expertise in, or views regarding, any area of technology related law. Nor, is there anything in the record to suggest that any of the opposition is connected to technology law.

FDA States That Canadian Web Sites Sell Counterfeit and Unsafe Drugs

8/30. The Food and Drug Administration (FDA) issued a consumer advisory regarding counterfeit prescription drugs sold by web sites located in Canada.

The advisory states that consumers are advised "not to purchase prescription drugs from websites that have orders filled by Mediplan Prescription Plus Pharmacy or Mediplan Global Health in Manitoba, Canada following reports of counterfeit versions of prescription drug products being sold by these companies to U.S. consumers. FDA is investigating these reports and is coordinating with international law enforcement authorities on this matter."

The FDA recommends that "consumers who have purchased drugs from these websites not use the products because they may be unsafe".

The FDA advisory lists the names of the prescription drugs, and the following web sites:

The FDA advisory adds that "FDA advises consumers to use caution when buying medical products online. Although a website may appear reputable and similar to legitimate retail pharmacy websites, many actually operate from outside the U.S. and provide unapproved drugs from unreliable sources."

Moreover, the FDA advisory reports that "Of the drugs being promoted as ``Canadian,´´ based on accompanying documentation, 85 percent actually came from 27 other countries around the globe. A number of these products also were found to be counterfeit. These results demonstrated that some Internet sites that claimed to be ``Canadian´´ were, in fact, selling drugs of dubious origin, safety and efficacy.

See also, stories titled "Montgomery County, Maryland, Sues FDA Over Ban on Importation of Drugs" and "DHS Cracks Down on Importation of Prescription Drugs" in TLJ Daily E-Mail Alert No. 1,317, February 24, 2006, and "FDA and Health Canada Debate Internet Drug Sales" in TLJ Daily E-Mail Alert No. 782, November 19, 2003.

AT&T Loses Customer Data to Hackers

8/29. AT&T announced in a release on August 29, 2006, that "unauthorized persons illegally hacked into a computer system and accessed personal data, including credit card information, from several thousand customers who purchased DSL equipment through the company's online Web store."

AT&T also stated that it is sending notifications of the breach to "fewer than 19,000 customers".

AT&T stated that it discovered that its servers had been hacked "within hours", and that it is "working with law enforcement to investigate the incident and pursue the perpetrators."

AT&T concluded that "We recognize that there is an active market for illegally obtained personal information." It added that it intends "to pay for credit monitoring services for customers whose accounts have been impacted." It did not state that it would compensate its customers for injuries suffered as a result of misuse of their personal information.

FCC Commissioners Praise BellSouth's and Verizon's Elimination of Fees Imposed on DSL Customers

8/30. BellSouth announced in a release on August 25, 2006, that "it is immediately eliminating a fee assessed on its DSL Internet services".

It added that the fee "was designed to recover a number of costs remaining from previous regulatory obligations and other network expenses that increase the cost of the Internet services we provide to consumers. Since the FCC eliminated the continuing applicability of many of these regulations, BellSouth has been able to provide a greater variety of Internet services to consumers, to which consumers have responded enthusiastically, and has signed over 300 contracts to provide independent Internet service providers with wholesale DSL services."

In addition, Verizon announced in a release on August 29, 2006, that it is "dropping previously announced plans to impose a supplier surcharge for DSL-based Internet access service on its retail customers."

Verizon added that it "began notifying its retail customers earlier this month of its plans to pass through a surcharge imposed by its affiliated operating telephone companies to cover costs associated with providing DSL service to customers who do not also subscribe to Verizon's traditional phone service. At the same time that the surcharge was to have been added, a federal government charge, the Universal Service Fund recovery fee, was eliminated from the bills."

Federal Communications Commission (FCC) Chairman Kevin Martin released a short statement [PDF] on August 30. He wrote that "I am pleased that both Verizon and BellSouth have eliminated fees recently imposed on their DSL customers. Consumers should receive the benefits of the Commission's action last summer to remove regulations imposed on DSL service. The continued deployment of broadband at affordable prices for consumers remains my top priority as Chairman."

FCC Commissioner Deborah Tate also released a short statement [PDF]: "Consumers today received good news that they should begin to reap the benefits of the Commission’s broadband deregulation decision. I am pleased that BellSouth determined last week -- and Verizon followed today -- to drop proposed new charges on consumer broadband bills."

People and Appointments

8/25. Jot Carpenter was named Vice-President, Government Affairs of the CTIA. He previously worked for AT&T, the Telecommunications Industry Association (TIA), and Rep. Mike Oxley (R-OH). See, CTIA release.

More News

8/30. The U.S. Court of Appeals (9thCir) issued its opinion [16 pages in PDF] in Funky Films v. Time Warner, a copyright infringement case. The Court of Appeals affirmed the judgment of the District Court for Time Warner. Funky films filed a complaint in U.S. District Court (CDCal) against Time Warner alleging that its television program titled "Six Feet Under" infringed Funky Films' earlier screenplay titled "The Funk Parlor". The District Court assumed, without deciding, that Time Warner had access to the earlier work, but held that the two works were not substantially similar. The Court of Appeals affirmed. This case is Funky Films, Inc. v. Time Warner Entertainment Corporation, U.S. Court of Appeals for the 9th Circuit, App. Ct. No. 04-55578, an appeal from the U.S. District Court for the Central District of California, D.C. No. CV-03-00964-CJC, Judge Cormac Carney presiding. Judge Betty Fletcher wrote the opinion of the Court of Appeals, in which Judges Warren Ferguson and Consuelo Callahan joined.

8/23. Qwest issued a release regarding proposals to mandate data retention by internet service providers. In this release, Qwest's Chief Privacy Officer, Jennifer Mardosz, states that "To clarify recent news reports, Qwest is not calling for mandatory federal data retention laws." She continued that "As a matter of corporate policy, Qwest voluntarily retains IP address assignments -- not the underlying content -- obviating the need for federal or state requirements. We strongly believe the best way to address this issue is to have the market drive data retention policies. Companies should voluntarily retain records of IP address assignments to protect customer privacy while also safeguarding citizens from online predators." She concluded that "We will continue to work closely with officials in their efforts to make the Internet experience safer while at the same time, remain a strong advocate for the privacy and safety of our customers."

Washington Tech Calendar
New items are highlighted in red.
Thursday, August 31

The House will next meet at 2:00 PM on Wednesday, September 6. See, Republican Whip Notice.

The Senate will next meet at 11:00 AM on Tuesday, September 5.

11:00 AM. The Cato Institute will host a panel discussion titled "Prospects for Reform of U.S. Agricultural Policy --With or without Doha". The speakers will include Mike Johanns (Secretary of Agriculture), former Rep. Cal Dooley (D-CA) (head of the Food Products Association), and Robert Thompson (University of Illinois). See, notice and registration page. The event will be webcast by Cato. Lunch will follow the program. Location: Cato, 1000 Massachusetts Ave., NW.

Deadline to submit comments to the National Institute of Standards and Technology's (NIST) Computer Security Division regarding its draft [ZIP] of Special Publication (SP) 800-69, titled "Guidance for Securing Microsoft Windows XP Home Edition: A NIST Security Configuration Checklist. See also, summary. This document provides guidance to telecommuting employees and those who maintain home offices and use Windows XP Home Edition.

Friday, September 1

Effective date of the Federal Trade Commission's (FTC) final rule amending Section 310.8 of its Telemarketing Sales Rule (TSR) by revising the fees charged to entities for accessing the National Do Not Call Registry. See, notice in the Federal Register, July 31, 2006, Vol. 71, No. 146, at Pages 43048-43054.

Deadline to submit initial comments to the Federal Communications Commission (FCC) for its 2006 biennial review of telecommunications regulations. See, FCC notice [10 pages in PDF] and notice in the Federal Register, August 23, 2006, Vol. 71, No. 163, at Pages 49400-49401. This is CG Docket No. 06-152, EB Docket No. 06-153, IB Docket No. 06-154, ET Docket No. 06-155, WT Docket No. 06-156, WC Docket No. 06-157, and FCC 06-115.

Deadline to submit initial comments to the Federal Communications Commission (FCC) regarding the initial regulatory flexibility analysis of the FCC's Second Further Notice of Proposed Rule Making in its proceeding titled "In the Matter of Children's Television Obligations of Digital Television Broadcasters" and numbered MM Docket No. 00-167. See, notice in the Federal Register, August 25, 2006, Vol. 71, No. 165, at Pages 50380-50382.

Monday, September 4

Labor Day.

There will be no issue of the TLJ Daily E-Mail Alert.

The Federal Communications Commission (FCC) and other federal offices will be closed. See, Office of Personnel Management's (OPM) list of federal holidays.

Tuesday, September 5

The Senate will return from its August recess at 11:00 AM. It will resume consideration of HR 5631, the Department of Defense FY 2007 appropriations bill. See, 2006 Senate calendar.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Business Objects v. Microstrategy, App. Ct. No. 05-1540. Location: Courtroom 201, 717 Madison Place, NW.

1:00 - 3:00 PM. The U.S. Patent and Trademark Office (USPTO) and the U.S. Copyright Office (CO) will hold a public roundtable discussion regarding World Intellectual Property Organization's (WIPO) Standing Committee on Copyright and Related Rights' (SCCR) work on a proposed Treaty On the Protection of the Rights of Broadcasting Organizations. See, notice in the Federal Register, August 17, 2006, Vol. 71, No. 159, at Page 47489. Location: Atrium Conference Room, USPTO, 600 Dulany Street, Madison West, 10th Floor, Alexandria, VA.

Deadline to submit comments to the Office of the U.S. Trade Representative (USTR) regarding whether major beneficiaries of the Generalized System of Preferences (GSP) program have expanded exports or have progressed in their economic development within the meaning of the statute to the extent that their eligibility should be limited, suspended, or withdrawn, pursuant to section 502(d) of the Trade Act of 1974, which is codified at 19 U.S.C. § 2462(d). See, notice in the Federal Register, August 8, 2006, Vol. 71, No. 152, at Pages 45079-45080.

Wednesday, September 6

The House will return from its August recess.

10:00 AM. The House Judiciary Committee's Subcommittee on Courts, the Internet, and Intellectual Property will hold a hearing on HR 3323, the "Free Flow of Information Act of 2005". This bill would give reporters the right to notice and a hearing before federal entities could compel them to provide certain testimony, or seize certain records. It would also apply to certain records held by communications service providers. See, notice. Press contact: Jeff Lungren or Terry Shawn at 202-225-2492. Location: Room 2141, Rayburn Building.

Thursday, September 7

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in O2 Micro International v. Monolithic Power Systems, App. Ct. No. 06-1064, an appeal from the U.S. District Court (NDCal) in a patent infringement and trade secrets case involving power management and security components for computers and handheld devices. Location: Courtroom 203, 717 Madison Place, NW.

10:00 AM - 12:00 NOON. The Federal Communications Commission's (FCC) Wireless Telecommunications Bureau (WTB) will hold a training session of the new filing interface for FCC Form 608 Application or Notification for Spectrum Leasing Arrangement or Private Commons Arrangement. See, FCC notice [PDF]. Location: FCC, Room TW-B445A, 445 12th Street, SW.

11:00 AM - 12:30 PM. The American Enterprise Institute (AEI) will host a panel discussion titled "National Security and Freedom of the Press". The speakers will be Andrew McCarthy (Foundation for Defense of Democracies), Stuart Taylor (National Journal), James Woolsey (former CIA Director), and Michael Leeden (AEI). See, notice. Location: AEI, 12th floor, 1150 17th St., NW.

6:00 - 8:00 PM. The Federal Communications Bar Association (FCBA) will host a reception for Federal Communications Commission (FCC) Commissioners Deborah Tate and Robert McDowell. See, notice and registration form [PDF]. Prices vary. Location: Washington Hilton Hotel, 1919 Connecticut Ave., NW.

Friday, September 8

9:30 AM - 12:00 NOON. The Department of State's International Telecommunication Advisory Committee (ITAC) will meet to discuss the U.S. position on ITU budget shortfalls. See, notice in the Federal Register, August 16, 2006, Vol. 71, No. 158, at Page 47286. Location: undisclosed.

12:15 PM. The Federal Communications Bar Association's (FCBA) Legislative Committee will host a brown bag lunch titled "Prospects for Communications Reform in the 109th Congress". The speakers will be James Assey (Senior Minority Counsel, Senate Commerce Committee), Johanna Shelton (Minority Counsel, House Commerce Committee), Lisa Sutherland (Staff Director, Senate Commerce Committee), and Howard Waltzman (Chief Counsel, House Commerce Committee). RSVP to Chris Moore at chris_moore at burns dot senate dot gov. Location: Room HC-6, Capitol Building.

TIME? The U.S. Chamber of Commerce will host an event titled "Talkers Magazine Forum on Intellectual Property Rights". Talkers Magazine is a trade publication that covers the talk media industries, including broadcast talk radio and television, cable news and talk television, satellite radio talk, and podcasting. See, notice. For more information, contact Scott Eisner at ncfevents at uschamber dot com or 202-463-5500. Location: U.S. Chamber, 1615 H Street, NW.

Deadline to submit reply comments to the Federal Communications Commission (FCC) regarding the initial regulatory flexibility analysis of the FCC's Second Further Notice of Proposed Rule Making in its proceeding titled "In the Matter of Children's Television Obligations of Digital Television Broadcasters" and numbered MM Docket No. 00-167. See, notice in the Federal Register, August 25, 2006, Vol. 71, No. 165, at Pages 50380-50382.

Deadline to submit initial comments to the Federal Communications Commission (FCC) regarding Neutral Tandem's petition for interconnection with Verizon Wireless. See, FCC's Public Notice (DA 06-1603) and notice in the Federal Register, August 30, 2006, Vol. 71, No. 168, at Pages 51617-51618. This proceeding is WC Docket No. 06-159.

Saturday, September 9

9:00 AM - 12:00 NOON. The National Archives and Records Administration's (NARA) Information Security Oversight Office's (ISOO) Public Interest Declassification Board (PIDB) will hold a meeting to discuss declassification program issues. See, notice in the Federal Register, August 16, 2006, Vol. 71, No. 158, at Page 47258. Location: Washington Room, NARA, 700 Pennsylvania Ave., NW.

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