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November 16, 2006, Alert No. 1,490.
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WTO Appellate Body Issues Report in Customs Dispute Between US and EU

11/13. The World Trade Organization's (WTO) Appellate Body released its report [136 pages in PDF] that upholds parts, and reverses parts, of the WTO Panel's report regarding the European Union's customs practices, including customs classification of liquid crystal display (LCD) monitors.

Trade officials on both sides of the Atlantic claimed victory, and denounced the actions of the other.

John Veroneau, a Deputy US Trade Representative, stated in a release that "Like every other WTO Member, the EU must administer its customs law uniformly across its territory.  Todayís report confirms the panelís finding that the EU does not do so when it comes to the classification of LCD monitors."

The EU stated in a release that the WTO Appellate Body report confirms "the legality of the European Community's (EC) customs system".

The Appellate Body affirmed the panel report's conclusion that the EU's "tariff classification of liquid crystal display monitors with digital video interface amounts to non-uniform administration".

The US filed a complaint with the WTO in 2004 initiating this proceeding. A WTO panel issued its report on June 16, 2006. See, story titled "WTO Panel Releases Report on US-EC Dispute Over LCD Monitors" in TLJ Daily E-Mail Alert No. 1,396, June 21, 2006. Both the US and EU appealed parts of the panel report.

"Today's Appellate Body report reinforces that the EU is subject to the same rules as other WTO Members.  The EUís internal decisions about how to organize itself do not excuse it from or diminish its obligations to other WTO Members", said Veroneau. "We would have preferred the original panel to have made a broader finding about the EUís system as a whole.  In that regard, we are pleased that in todayís report, the Appellate Body reversed the panelís decision to limit its findings to particular instances of administration of EU customs law.  The EUís administration of its rules on LCD monitors is indicative of how the system as a whole operates.  Had the panel considered the EU system as a whole, it should have reached that conclusion."

The EU stated that the European Commission is "only found in violation of GATT rules in one very specific and complex case of tariff classification (out of the 19 cases put forward by the US)." (Parentheses in original.)

The EU added that "The Appellate Body's report confirms that the US has failed to bring any evidence that the EU's customs administration system is inconsistent with the EU's WTO obligations to ensure uniform administration and prompt review of administrative decisions."

People and Appointments

Rep. Nancy Pelosi11/16. House Democrats nominated Rep. Nancy Pelosi (D-CA) (at left) to be their candidate for Speaker of the House in the 110th Congress. She ran unopposed. Since Democrats won a majority of seats in the next Congress, this assures Rep. Pelosi of being elected the next Speaker. House Democrats selected Rep. Steny Hoyer (D-MD) to be the majority leader. He defeated Rep. John Murtha (D-PA) by a vote of 149-86. In addition, House Democrats selected Rep. James Clyburn (D-SC) to be the majority whip.

11/16. House Republicans meet on Friday, November 17, 2006, to select their leaders for the 110th Congress. Rep. Joe Barton (R-TX) withdrew from the race for minority leader. This leaves Rep. John Boehner (R-OH) and Rep. Mike Pence (R-IN) as candidates. Rep. Barton endorsed Rep. Boehner.

James Rogan11/15. President Bush nominated James Rogan (at right) to be a Judge of the U.S. District Court for the Central District of California. See, White House release. This is a new nomination. He is a former Member of Congress. He served on the House Judiciary Committee (HJC), and its Subcommittee on Court and Intellectual Property, and the House Commerce Committee. After losing his seat to Rep. Adam Schiff (D-CA), Rogan was appointed head of the US Patent and Trademark Office (USPTO). If confirmed, he would be one of only a few judicial appointees of President Bush with a background in technology related areas of law. See also, TLJ biography of Rogan written in 1999. However, he is a also pro-life conservative who was a House Manager of the Clinton impeachment trial. Many Democrats will oppose his confirmation by the Senate.

11/15. President 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. Senate Democrats have long prevented the Senate from voting on Judge Boyle. See, White House release.

William Haynes11/15. President Bush again nominated William Haynes (at left) 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. He is another judicial nominee who has for years been blocked by Senate Democrats, who have enough votes to keep his nomination from coming to a vote, but not enough votes to defeat him. See, White House release.

11/15. President Bush again nominated William Myers to be a Judge of the U.S. Court of Appeals (9thCir). He is now of counsel to the law firm of Holland & Hart in Boise, Idaho.

11/15. President 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. See, White House release.

11/15. President Bush again nominated Michael Wallace to be a Judge of the U.S. Court of Appeals (5thCir). See, White House release.

Peter Keisler11/15. President Bush again nominated Peter Keisler (at right) to be a Judge of the U.S. Court of Appeals (DCCir). Bush first nominated Keisler for this position in June of this year. He is currently the Assistant Attorney General in charge of the Civil Division. He was previously an attorney at the law firm of Sidley Austin, where he represented AT&T. See, White House release.

11/15. President Bush nominated Benjamin Settle to be a Judge of the U.S. District Court for the Western District of Washington. See, White House release.

More News

11/16. President Bush gave a speech at National Singapore University in Singapore. He spoke about, among other topics, trade, technology and terrorism. He said that the US "has long been committed to a global trading system that is free and that is fair. And so is Singapore. Singapore was the host of the first meeting of the World Trade Organization in 1996, where we announced an important new agreement on information technology goods. A decade later, America and Singapore are again close partners working toward a common purpose, a breakthrough in the Doha negotiations. Only an ambitious Doha agreement with real market access can achieve the economic growth and development goals that this world has set, and we look to nations across the Asia Pacific region to help put these vital talks back on track." He also said that "The same technology and global openness that have transformed our lives also threaten our lives. The same innovations that make it easier to build cars and computers make it easier to build weapons of mass destruction. The same advances in international transportation and finance that allow a manufacturer in Singapore to sell electronics to a store in San Francisco would also allow a proliferating regime in the Far East to sell dangerous technologies to a terrorist organization in the Middle East. The danger is unmistakable. In an age of unprecedented technological advances, irresponsible behavior by a few can have catastrophic consequences for the entire world." He also commented, as he has in the past, on the relation between freedom and innovation. He said that "Freedom has unleashed the creative talents of people throughout Asia."

11/15. Sen. Charles Grassley (R-IA) and Sen. Max Baucus (D-MT) sent a letter to Susan Schwab, the US Trade Representative, regarding the Peoples Republic of China's protectionist policies regarding electronic payments services. They wrote that as part of commitments upon joining the World Trade Organization (WTO), "China pledged to phase out a variety of financial services restrictions over time". These commitments take effect on December 11, 2006. The two Senators wrote that the "People's Bank of China is considering policies that would allow China Union Pay ("CUP") to remain the sole domestic electronic payments provider in China." They urged Schwab "to seek confirmation from the highest level of authorities in China that China will fully carry out its financial services commitments."

Correction

The story titled "7th Circuit Holds GPL and Open Source Software Do Not Violate Antitrust Law" in TLJ Daily E-Mail Alert No. 1,487, November 10, 2006, misspelled the name of IBM's lead attorney. He is Michael Gottschlich of the law firm of Barnes & Thornburg.

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Washington Tech Calendar
New items are highlighted in red.
Thursday, November 16

8:00 AM - 5:00 PM. Day one of a two day meeting of the National Science Foundation's (NSF) Advisory Committee for Engineering. The agenda includes "Critical Infrastructure Systems", "New Frontiers in Nanotechnology", and "Update on Cyberinfrastructure and Simulation-Based Engineering Science". See, notice in the Federal Register, October 17, 2006, Vol. 71, No. 200, at Page 61073. Location: NSF, 4201 Wilson Blvd., Room 1235, Arlington, VA.

9:00 AM - 4:00 PM. Day two of a two day public meeting of the Federal Accounting Standards Advisory Board (FASAB). See, notice in the Federal Register, July 12, 2006, Vol. 71, No. 133, at Pages 39318. Location: Room 7C13, GAO Building, 441 G St., NW.

9:30 AM. The Senate Judiciary Committee (SJC) will hold a hearing titled "Oversight of the Civil Rights Division". The witnesses will include Wan Kim (Assistant Attorney General in charge of the Civil Rights Division), Michael Carvin (Jones Day), Ted Shaw (NAACP Legal Defense and Educational Fund), Robert Driscoll (Alston & Bird), and Joseph Rich (Lawyer's Committee for Civil Rights Under Law). See, notice. Press contact: Courtney Boone at Courtney_Boone at judiciary-rep dot senate dot gov or 202-224-5225. Location: Room 226, Dirksen Building.

10:30 AM - 12:00 NOON. The Department of State's (DOS) International Telecommunication Advisory Committee (ITAC) will meet to discuss proposed U.S. contributions to the Committee on Information Services and Policy (CISP) and Working Party on the Information Economy (WPIE) meetings of the Organization for Economic Co-operation and Development (OECD). See, notice in the Federal Register, October 31, 2006, Vol. 71, No. 210, at Page 63828. Location: Room 2533A, Harry Truman Building.

12:15 - 1:30 PM. The Federal Communications Bar Association's (FCBA) Communications Law, Copyright, and Digital Rights Management Committee will host a brown bag lunch titled "Copyright and the Internet". The speakers will be Rick Lane (Newscorp) and Jonathan Potter (Digital Media Association). RSVP by November 13 to Ben Golant at bgol at loc dot gov or 202-707-9127. Location: National Association of Broadcasters (NAB), 1771 N Street, NW.

12:30 - 2:00 PM. The DC Bar Association will host a panel discussion titled "CALEA Implementation: A Practical Overview". The speakers will include Maura Quinn (Unit Chief, CALEA Implementation Unit, FBI), Paul Kouroupas (VP, Regulatory Affairs, Global Crossing), Tony Rutkowski (VP, Regulatory, Verisign), and Matthew Brill (Latham & Watkins). 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.

6:00 - 8:15 PM. The DC Bar Association will host a continuing legal education (CLE) seminar titled "Trade Secrets in the District of Columbia, Maryland and Virginia". The speakers will include Milton Babirak (Babirak Vangellow & Carr). 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.

7:00 - 9:30 PM. The Federal Communications Bar Association's (FCBA) Young Lawyers Committee and the FCBA Foundation will host an event titled "17th Annual Charity Auction". See, notice. Location: Marriott at Metro Center, 775 12th Street, NW.

Day one of a three day convention hosted by the Federal Society. At 12:00 NOON - 1:30 PM, there will be a panel discussion titled "Telecommunications: Net Neutrality: Battle of the Titans". The speakers will be William Barr (Verizon), Paul Misener (Amazon), Timothy Wu (Columbia University Law School), Christopher Yoo (Vanderbilt University Law School), and David McIntosh (Mayer Brown). This panel will be in the East Room. See, notice and schedule. Location: Mayflower Hotel, 1127 Connecticut Ave., NW.

Day four of a five day meeting of the Department of Commerce's Judges Panel of the Malcolm Baldrige National Quality Award. See, notice in the Federal Register, October 20, 2006, Vol. 71, No. 203, Pages 61958-61959. Location: National Institute of Standards and Technology, Building 222, Room A230, Gaithersburg, MD.

Friday, November 17

The Republican Whip Notice states that "there are no votes expected in the House". See also, HConRes 496.

The Senate will next meet on Monday, December 4, 2006. See also, HConRes 496.

8:00 AM - 12:00 NOON Day two of a two day meeting of the National Science Foundation's (NSF) Advisory Committee for Engineering. The agenda includes "Critical Infrastructure Systems", "New Frontiers in Nanotechnology", and "Update on Cyberinfrastructure and Simulation-Based Engineering Science". See, notice in the Federal Register, October 17, 2006, Vol. 71, No. 200, at Page 61073. Location: NSF, 4201 Wilson Blvd., Room 1235, Arlington, VA.

Day two of a three day convention hosted by the Federal Society. At 3:30 - 4:45 PM there will be a panel discussion titled "Intellectual Property: Does IP Harm or Help Developing Countries?" The speakers will be Alex Azar (Deputy Secretary, Department of Health and Human Services), Graeme Dinwoodie (Chicago-Kent College of Law), Jerome Reichman (Duke University School of Law), Robert Sherwood (Intellectual Property Practice Group), and Bruce Lehman (Akin Gump). This panel will be in the Colonial Room. See, notice and schedule. Location: Mayflower Hotel, 1127 Connecticut Ave., NW.

Day five of a five day meeting of the Department of Commerce's Judges Panel of the Malcolm Baldrige National Quality Award. See, notice in the Federal Register, October 20, 2006, Vol. 71, No. 203, Pages 61958-61959. Location: National Institute of Standards and Technology, Building 222, Room A230, Gaithersburg, MD.

Deadline to submit comments to the National Institute of Standards and Technology (NIST) regarding its Draft Special Publication 800-53 [176 pages in PDF] titled "Recommended Security Controls for Federal Information Systems". This is Revision 1, Final Public Draft. See also, mark up copy [186 pages in PDF].

Sunday, November 19

? Deadline to submit comments to the Department of Justice's (DOJ) Antitrust Division's Telecommunications & Media Enforcement Section, regarding the Complaint, proposed Final Judgment, Preservation of Assets Stipulation, or Competitive Impact Statement in U.S. v. ALLTEL. This is the Antitrust Division's action, brought pursuant to Section 7 of the Clayton Act, which is codified at 15 U.S.C. ß 18, and proposed settlement, regarding ALLTEL's acquisition of Midwest Wireless. The Antitrust Procedures and Penalties Act, which is codified at 15 U.S.C. ß 16, requires publication of a notice in the Federal Register, and a sixty day public comment period. The notice does not state the deadline. However, November 19 is 60 days after September 20. See, notice in the Federal Register, September 20, 2006, Vol. 71, No. 182, Pages 55015-55028.

Monday, November 20

5:00 PDT. Deadline to submit comments to the Internet Corporation for Assigned Names and Numbers (ICANN) regarding Global Name Registry Ltd.'s (GNR) proposal for the limited release of two character names. See, notice.

Deadline to submit initial comments to the Federal Communications Commission (FCC) regarding Autotel's petition for preemption of the jurisdiction of the Arizona Corporation Commission with respect to its decisions to dismiss Autotelís request for arbitration of an interconnection agreement with Citizens Utilities Rural Company, Inc. and Autotelís request for termination of the rural exemption under section 251(f) of the Act. See, FCC Public Notice [PDF] (DA 06-2083). This proceeding is WT Docket No. 06-194.

Tuesday, November 21

12:00 NOON - 1:15 PM. The DC Bar Association will host a seminar titled "50 Hot Technology Tips, Tricks & Web Sites for Lawyers". The speaker will be Reid Trautz. 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.

12:15 PM. The Federal Communications Bar Association's (FCBA) Common Carrier Committee will host a brown bag lunch. This is a planning meeting. RSVP to Myra Creeks at Myra dot Creeks at att dot com. Location: AT&T, 2nd floor, 1133 21st Street, NW.

EXTENDED TO DECEMBER 21. Deadline to submit reply 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, order [PDF] extending deadlines.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to National LambdaRail's petition for reconsideration or clarification of the FCC's Order establishing a rural telehealth and telemedicine pilot subsidy program. See, FCC Public Notice (DA 06-2279). The FCC's order is FCC 06-144 in WC Docket No. 02-60.

Wednesday, November 22

Deadline to submit comments to the Department of Commerce's Bureau of Industry and Security (BIS) regarding its annual review of the foreign policy based controls in its Export Administration Regulations (EAR), which are implemented pursuant to section 6 of the Export Administration Act of 1979, as expired. These rules regulate, among other things, the export of certain encryption and software products. The BIS states that it seeks comments on many topics, including "The likelihood that such controls will achieve the intended foreign policy purpose, in light of other factors, including the availability from other countries of the goods, software or technology proposed for such controls". See, notice in the Federal Register, October 23, 2006, Vol. 71, No. 204, at Pages 62065-62067.

Thursday, November 23

Thanksgiving Day.

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