10/16. The Supreme Court denied certiorari in Hatch v. Cellco Partnership, Sup. Ct. No. 05-1159, a case regarding 47 U.S.C. § 332 and state authority to regulate wireless service providers. See, Order List [9 pages in PDF] at page 1.

This is a victory for Verizon Wireless, and other wireless service providers. This lets stand the judgment of the U.S. Court of Appeals (8thCir), which ruled for the wireless service providers. See, December 9, 2005, opinion [13 pages in PDF] of the Court of Appeals, and story titled "Supreme Court Requests Solicitor General Brief in Hatch v. Cellco Partnership" in TLJ Daily E-Mail Alert No. 1,390, June 13, 2006.

The Department of Justice's (DOJ) Office of the Solicitor General (OSG) wrote in its amicus curiae brief for the Supreme Court that "The decision of the court of appeals is correct and does not conflict with any decision of this Court or any other court. Nor does the decision below present an important issue of federal law that should be decided by this Court. This Court's review is therefore not warranted."

This case arose because the state of Minnesota enacted a statute pertaining to "Wireless Consumer Protection". Cellco Partnership, which does business under the name of Verizon Wireless, and other wireless service providers, filed a complaint in U.S. District Court (DMinn) against Mike Hatch, the Attorney General of Minnesota, seeking declaratory and injunctive relief that the statute is preempted by 47 U.S.C. § 332(c)(3)(A). The District Court denied the wireless companies' request for a permanent injunction. They appealed.

The Court of Appeals reversed, and instructed the District Court to grant the wireless companies a permanent injunction.

The Court of Appeals wrote in its opinion that the Minnesota "statute forbids the providers to implement changes in the terms and conditions of subscriber contracts that ``could result´´ in increased rates or an extended contract term, unless they first obtain affirmative written or oral consent from the subscriber."

It "also requires providers to deliver copies of the subscriber contracts to the subscribers, ... and, in the event a subscriber proposes a change to the contract, to disclose clearly any rate increase or contract extension that could result from the change. ... The statute further requires providers to maintain recorded or electronic verification of the ``disclosures´´ required by the law."

Section 332 provides that "no State or local government shall have any authority to regulate the entry of or the rates charged by any commercial mobile service or any private mobile service, except that this paragraph shall not prohibit a State from regulating the other terms and conditions of commercial mobile services."

The Court of Appeals reasoned that the section of the statute that regulates provider initiated changes is not a consumer protection provision that falls within the meaning of "other terms and conditions". Rather, it "effectively regulates rates", and is therefore preempted by Section 332. That is, it "requires providers to maintain rates different from those that would be charged if the providers were left to follow the terms of their existing contracts, which typically allow an adjustment of rates after reasonable notice of fewer than 60 days."

The OSG pointed out for the Supreme Court that "No other State has enacted a statute that freezes CMRS rates". It also wrote that "the court of appeals' decision does not prevent the States from prohibiting unfair business practices by wireless providers. The decision holds only that a state law is preempted if it ``freezes´´ the rates that CMRS providers may charge and thus "has a clear and direct effect on rates."

10/17. Federal Reserve Board (FRB) Governor Susan Bies gave a speech titled "A Supervisory Perspective on Enterprise Risk Management" in which she discussed information security in the financial services sector.

Bies (at right) said that "cyber attacks and security breaches involving nonpublic customer information appear in the headlines almost every week. These events have cost the financial services industry millions of dollars in direct losses and have done considerable reputational damage. The cost of identity theft to affected consumers is also significant."

She addressed threats to banks from insiders. She said that banking "organizations also remain at risk for breaches or misuses of information by an insider. During our examination activities, we have seen operating losses that were traced back to weak controls over insiders' access to information technology systems interfacing with electronic funds transfer networks. Further investigation into these situations suggests that the duration and magnitude of the fraud and resulting losses is a direct function of the internal party's access to accounting and related systems."

She recommended that "institutions should tightly control access to funds transfer systems and ensure that access settings enforce separation of duties, dual controls, and management sign-offs."

Second, she said that "an institution's senior management should be restricted from regular access to business-line functional systems, especially funds transfer systems. When such restriction is impractical, additional controls must be in place and functioning effectively."

Finally, she said that "effective management of information security risk, even when focused on a specific function, requires an enterprise-wide approach to yield a true and complete evaluation of the associated risks."

She also discussed threats that banks face from persons outside of the banks. In particular, "Banking organizations' increased use of the Internet as a communication and delivery channel have resulted in the need for and use of more-sophisticated control mechanisms, such as enterprise-wide firewall protections, multifactor authentication schemes, and virtual private-network connections."

She did not discuss telephone pretexting to obtain bank customers' personal and financial information.

Bies spoke in Phoenix, Arizona, to the annual convention of the American Bankers Association (ABA).

10/17. The Government Accountability Office (GAO) released a report [31 pages in PDF] titled "Information Technology: FBI Has Largely Staffed Key Modernization Program, but Strategic Approach to Managing Program’s Human Capital Is Needed".

This is another in a long running series of reports issued by the GAO, and others, regarding the Department of Justice's (DOJ) and the Federal Bureau of Investigation's (FBI) inability to manage and use information technologies.

This report pertains to the FBI's program titled "Sentinel". The GAO states that the purpose of this program is to "acquire and deploy an information technology (IT) system to replace and expand on both its failed Virtual Case File (VCF) project and its antiquated, paper-based, legacy system for supporting mission-critical intelligence analysis and investigative case management activities".

This report, as requested by the House Judiciary Committee, examines only the FBI's staffing of this Sentinel program.

It finds that the FBI has filled a lot of positions, but mostly with contractors, and without strategic planning, or concern for future workforce needs.

The GAO report states that these deficiencies increase "the chances that promised system capabilities and benefits will not be delivered on time and within budget."

It states that "the staffing plan addresses only the program’s immediate staffing needs and does not define the kind of strategic approach to human capital management that our research and evaluations have shown to be critical to the success of any organizational entity."

It adds that "the staffing plan was not derived using a documented, fact-based, data-driven methodology, and the plan does not provide for inventorying the knowledge and skills of existing staff, forecasting future knowledge and skill needs, analyzing gaps in capabilities between the existing staff and future workforce needs, (including consideration of expected succession needs), or formulating strategies for filling expected gaps, including training, additional hiring, and the appropriate degree of reliance on contractors." (Parentheses in original.)

The GAO report states also that "the program's inventory of risks does not include human capital; steps have not been planned to proactively mitigate the probability and impact of future staffing shortfalls, even though other program documents cite it as a challenge and a risk."

10/17. Christopher Conte, Fredric Firestone and Cheryl Scarboro were named Associate Directors of the Securities and Exchange Commission's (SEC) Division of Enforcement. These are internal promotions. See, SEC release.

10/16. The Federal Communications Commission (FCC) issued a Public Notice [PDF] that requests nominations for membership on the newly created Commercial Mobile Service Alert Advisory Committee. This Committee was created by Section 603 of the "Warning, Alert and Response Network Act" or "WARN Act", which was attached to HR 4954, the port security bill that President Bush signed on October 13, 2006. Nominations are due by December 12, 2006. See also, story titled "House and Senate Approve Port Security Bill With Tech Provisions" in TLJ Daily E-Mail Alert No. 1,461, October 4, 2006.

10/13. Comptel elected or re-elected 14 persons to its Board of Directors. See, Comptel release.

10/17. The Federal Communications Commission (FCC) issued an Order on Reconsideration [4 pages in PDF] in its proceeding titled, in part, "In the Matter of Emmis Communications Corporation". This is a broadcast indecency proceeding. The petitioners, who are decency advocates, argued, among other things, against the FCC's conclusion in its original order that "no substantial and material questions of fact in regard to these matters as to whether Emmis possesses the basic qualifications, including its character qualifications, to hold or obtain any FCC licenses or authorizations". The FCC denied the petition. This order is FCC 06-152.

10/17. The Federal Communications Commission (FCC) issued an Order on Reconsideration [6 pages in PDF] in a proceeding regarding broadcast indecency and Viacom and its network and broadcast licensee subsidiaries and affiliates, including CBS, UPN and Infinity. The petitioners, who are indecency advocates, argued in their petition for reconsideration, among other things, that the FCC's original order was ultra vires because it prevented the FCC from considering Viacom's apparent indecency violations in making determinations on license renewal applications. The FCC denied the petition. This order is FCC 06-153.

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The House will not meet. It may return from it elections recess on Monday, November 13, 2006. The adjournment resolution, HConRes 483, provides for returning on Thursday, November 9, at 2:00 PM.

The Senate will not meet. See, HConRes 483.

9:30 AM - 4:30 PM. Day two of a two day meeting of the U.S.-China Economic and Security Review Commission. It will consider drafts of material for its 2006 annual report to the Congress. The agenda includes, among other topics, a discussion of "China's Enforcement of Intellectual Property Rights and Its Production of Counterfeit Goods" and "China's WTO Compliance". See, notice in the Federal Register, October 11, 2006, Vol. 71, No. 196, at Pages 59858-59859. Location: Conference Room 235, Hall of The States, 444 North Capitol Street, NW.

12:15 PM. There will be a brown bag lunch titled "Deploying IP-based Services in Rural Areas". The Federal Communications Bar Association (FCBA) states that this event is hosted by its Common Carrier Committee and IP-Based Communications Practice Committee. For more information, contact Andy Morentz at amorentz at gci dot com. Location: Federal Communications Commission (FCC), 6th Floor South Conference Room, 445 12th St., SW.

10:30 AM. The The Heritage Foundation will host a program titled "Developing the U.S.-India Economic Relationship". The speaker will be Arun Shourie, a Member of the Upper House of the Indian Parliament. See, notice. Location: Heritage, 214 Massachusetts Ave., NE.

6:00 - 8:15 PM. The DC Bar Association will host a continuing legal education (CLE) seminar titled "Introduction to Export Controls". The speakers will include Thomas Scott (Weadon & Associates) and Carol Kalinoski (Kalinoski & Associates). The price to attend ranges from $90-$135. For more information, call 202-626-3488. See, notice and notice. Location: D.C. Bar Conference Center, 1250 H Street NW, B-1 Level.

Day one of a two day meeting of the Department of Labor's (DOL) Bureau of Labor Statistics' (BLS) Business Research Advisory Council (BRAC). See, notice in the Federal Register, October 2, 2006, Vol. 71, No. 190, at Pages 58013-58014. Location: Conference Center, Postal Square Building, 2 Massachusetts Ave., NE.

Day one of a two day conference hosted by the National Institute of Standards and Technology (NIST) titled "Moving Towards Interoperability -- Technologies for Affordable, Accessible Healthcare". See, notice. The price to attend is $195. Location: NIST, Red Auditorium, 100 Bureau Drive, Gaithersburg, MD.

12:00 NOON - 1:00 PM. The Heritage Foundation will host a panel discussion titled "Export Control Policy in the Age of Globalization: The View From The Defense Industry". The speakers will be Robert Bauerlein (Boeing), Charles Jameson (Northrop Grumman), and Baker Spring (Heritage). See, notice. Location: Heritage, 214 Massachusetts Ave., NE.

12:30 - 2:00 PM. The DC Bar Association will host a panel discussion titled "Universal Service: What is on the Horizon?". The speakers will include James Reid (assistant to Sen. John Rockefeller (D-WV)), Paul Garnett (CTIA-The Wireless Association), Eric Einhorn (AT&T), Lisa Zaina (Exec. Dir. of the Independent Telephone and Telecommunications Alliance), and Kathleen Grillo (Verizon). The price to attend ranges from $15 to $20. For more information, call 202-626-3463. See, notice. Location: D.C. Bar Conference Center, 1250 H Street, NW, B-1 Level.

Day one of a two day event hosted by the Information Technology Association of America (ITAA) titled "ITAA Identity Management Conference 2006". See, notice. The speakers will include Rep. Tom Davis (R-VA), Robert Cresanti (Under Secretary of Commerce for Technology), and Frank Moss (Deputy Assistant Secretary Passport Services, Department of State). For more information, contact Jennifer Kerber at jkerber at itaa dot org. Location: Sheraton Premiere Tysons Corner, VA.

Day one of a three day convention of the American Intellectual Property Law Association (AIPLA) titled "2006 Annual Meeting". See, convention web site. Location: Marriott Wardman Park, 2660 Woodley Park Road, NW.

Day two of a two day meeting of the Department of Labor's (DOL) Bureau of Labor Statistics' (BLS) Business Research Advisory Council (BRAC). Some of the many items on the agenda may be technology related. On October 19, from 8:30 - 10:00 AM, the Committee on Productivity and Foreign Labor Statistics will meet. Its agenda includes "Update on manufacturing compensation costs in China and India", "Cross-Country Comparisons of Consumer Price Indexes", "Update on International Technical Cooperation", and "Are Those Who Bring Work Home Really Working Longer Hours?" See, notice in the Federal Register, October 2, 2006, Vol. 71, No. 190, at Pages 58013-58014. Location: Conference Center, Postal Square Building, 2 Massachusetts Ave., NE.

Day two of a two day conference hosted by the National Institute of Standards and Technology (NIST) titled "Moving Towards Interoperability -- Technologies for Affordable, Accessible Healthcare". See, notice. The price to attend is $195. Location: NIST, Red Auditorium, 100 Bureau Drive, Gaithersburg, MD.

12:00 NOON - 2:00 PM. The Progress and Freedom Foundation (PFF) will host a panel discussion titled "Copyright 'Modernization': What is the Agenda on Capitol Hill?" The speakers will included Patrick Ross (PFF), Joe Keeley (Counsel to the House Judiciary Committee's Subcommittee on Courts, the Internet and Intellectual Property), David Jones (Counsel for the Senate Judiciary Committee's Subcommittee on Intellectual Property, and Amy Levine (legislative counsel to Rep. Rick Boucher (D-VA)). See, notice and registration page. Lunch will be served. Location: Room B-354, Rayburn Building.

1:30 PM. The U.S. District Court (DC) will hold a status conference in Cisco Systems v. Teles AG Informationstechnologien, D.C. No. 1:2005-cv-02048-RBW, a patent case. Judge Reggie Walton will preside. Location: Courtroom 5.

Day two of a two day event hosted by the Information Technology Association of America (ITAA) titled "ITAA Identity Management Conference 2006". See, notice. The speakers will include Rep. Tom Davis (R-VA), Robert Cresanti (Under Secretary of Commerce for Technology), and Frank Moss (Deputy Assistant Secretary Passport Services, Department of State). For more information, contact Jennifer Kerber at jkerber at itaa dot org. Location: Sheraton Premiere Tysons Corner, VA.

Day two of a three day convention of the American Intellectual Property Law Association (AIPLA) titled "2006 Annual Meeting". Location: Marriott Wardman Park, 2660 Woodley Park Road, NW.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its notice of proposed rulemaking (NPRM) [77 pages in PDF] regarding the service rules that primarily govern wireless licenses in the 698-746, 747-762, and 777-792 MHz bands (700 MHz Band) currently occupied by television broadcasters and being made available for new services as a result of the DTV transition. This NPRM is FCC 06-114 in WT Docket No. 06-150, CC Docket No. 94-102, and WT Docket No. 01-309. The FCC adopted this NPRM on August 3, 2006, released it on August 10, 2006. See, notice in the Federal Register, August 21, 2006, Vol. 71, No. 161, at Pages 48506-48527, and notice in the Federal Register, September 29, 2006, Vol. 71, No. 189, at Pages 57455-57456. See also, FCC release [PDF] that describes this NPRM.

Deadline to submit comments to the National Institute of Standards and Technology's (NIST) Computer Security Division regarding its Draft Special Publication 800-94 [123 pages in PDF], titled "Guide to Intrusion Detection and Prevention (IDP) Systems".

Day three of a three day convention of the American Intellectual Property Law Association (AIPLA) titled "2006 Annual Meeting". Location: Marriott Wardman Park, 2660 Woodley Park Road, NW.

5:30 - 8:00 PM. The Center for Democracy and Technology (CDT) will host an event titled "University Start-Ups Capitol Hill Reception". See, notice. For more information, or to RSVP, contact rsvp at netcaucus dot org or 202-638-4370. Location: __.

6:00 - 8:15 PM. The DC Bar Association will host a continuing legal education (CLE) seminar titled "How to Handle Opposition and Cancellation Actions Before the Trademark Trial and Appeal Board". The speakers will include Judges Karen Kuhlke and Jeffrey Quinn (Trademark Trial and Appeal Board) and Gary Krugman (Sughrue Mion). The price to attend ranges from $90-$115. For more information, call 202-626-3488. See, notice. Location: D.C. Bar Conference Center, 1250 H Street NW, B-1 Level.

Extended deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Further Notice of Proposed Rulemaking (FNPRM) regarding its media ownership rules. The FCC adopted this FNPRM on July 21, 2006, and released the text [36 pages in PDF] on July 24, 2006. See also, story titled "FCC Adopts FNPRM on Rules Regulating Ownership of Media" in TLJ Daily E-Mail Alert No. 1,397, June 22, 2006. This FNPRM is FCC 06-93 in MB Docket No. 02-277, MM Docket No. 01-235, MM Docket No. 01-317, MM Docket No. 00-244, and MB Docket Nos. 06-121. See also, original notice in the Federal Register, August 9, 2006, Vol. 71, No. 153, at Pages 45511-45515, and order [PDF] extending deadlines.

12:00 NOON - 2:00 PM. The Alliance for Public Technology (APT) and the National Caucus and Center on Black Aged (NCBA) will host a brown bag lunch titled "Older Adults, Broadband and the Future of the Internet". The speaker will be Kristin Fabos (SeniorNet). Location: NCBA, Suite 800, 1220 L Street, NW.

6:00 - 8:00 PM. The Federal Communications Bar Association (FCBA) will host an event titled "Fall Reception with the FCC Bureau Chiefs". See, registration form [PDF]. The price to attend ranges from $15 to $100. Location: J.W. Marriott Hotel, 1331 Pennsylvania Ave., NW.

6:00 - 8:15 PM. The DC Bar Association's Intellectual Property Law Section, and other Sections, will host a continuing legal education (CLE) seminar titled "Estate Planning for Artists, Authors and Collectors". The speakers will include Janet Fries (Drinker Biddle & Reath) and Ann Garfinkle (Whiteford Taylor & Preston). The price to attend ranges from $90 to $135. For more information, call 202-626-3488. See, notice. Location: D.C. Bar Conference Center, 1250 H Street NW, B-1 Level.

TIME? Federal Aviation Administration's (FAA) Commercial Space Transportation Advisory Committee's (COMSTAC) Working Groups on Technology and Innovation, Reusable Launch Vehicle, Risk Management, and Launch Operations and Support will meet. See, notice in the Federal Register, September 15, 2006, Vol. 71, No. 179, at Page 54550. Location: __.

Deadline to submit comments to the Federal Communications Commission (FCC) in response to its Public Notice [9 pages in PDF] of October 13, 2006, and public notice [7 pages in PDF] of September 16, regarding the merger of AT&T and BellSouth. This proceeding is WC Docket No. 06-74.