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December 11, 2006, Alert No. 1,502.
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FCC General Counsel Opinion Authorizes McDowell to Participate in AT&T BellSouth Merger Proceeding

12/8. Sam Feder, General Counsel of the Federal Communications Commission (FCC), sent a memorandum [8 pages in PDF] to FCC Commissioner Robert McDowell regarding "Authorization To Participate in the AT&T/BellSouth Merger Proceeding".

Feder wrote, "In accordance with the provisions of 5 C.F.R. ß 2635.502(d), you are hereby authorized to participate in the Commissionís decision on the AT&T/BellSouth merger proceeding described below. To date, you have not participated in this proceeding because you were, until May 31, 2006, employed by the Competitive Telecommunications Association (CompTel), which is one of a number of parties that have opposed the merger. You are now free to participate if you choose to do so."

He elaborated that "My decision is guided by FCC precedent, in which then-Chairman Kennard was authorized to take part in a proceeding addressing the repeal or modification of the personal attack and political editorial rules, despite the fact that he had previously represented a party in that same proceeding. I find any appearance concerns in that case to be greater than the potential appearance concerns here: Chairman Kennard previously participated as an advocate in the very same proceeding, while you never participated in any way in this proceeding on behalf of CompTel."

"And I find the Governmentís interest in your participation here to be at least as strong as the Governmentís interest in Chairman Kennardís case", wrote Feder.

However, he added that "you are free as an FCC Commissioner to abstain from participating in and voting on any proceeding."

Robert McDowellCommissioner McDowell (at left) released a statement on December 8 regarding Feder's determination. He wrote that "This evening, the FCC General Counsel, Samuel Feder, notified me that, in his opinion, I am authorized to participate in the AT&T-BellSouth merger proceeding. I am reviewing his opinion."

McDowell added that "I look forward to receiving a copy of Mr. Federís response to the letter of December 5 from Representatives Dingell and Markey. In the meantime, I strongly urge the participating parties and my four colleagues to resolve their differences in the same amicable and unified manner they did in the similar merger between SBC and AT&T just last year."

FCC Chairman Kevin Martin released a statement [PDF]. He wrote that "I appreciate the hard work and careful consideration that went into this important decision by the General Counsel. It is in the interest of the government and the American people to move this matter forward in a timely fashion. To that end, I look forward to working with all of my colleagues here on the Commission to reach a consensus."

Sen. Ted Stevens (R-AK) stated in a release that "This merger has been under consideration for almost nine months. The Commission has considered more than 10,000 comments and 600 reply comments. But now it is deadlocked. We have an odd number of FCC Commissioners for a reason, and the Commission functions best when there is a fifth person involved. A 2-2 stalemate does not serve the public interest. Now that the General Counsel has made this decision, I urge the Commission to reach a timely decision."

Gigi Sohn, head of the Public Knowledge (PK), stated in a release that "Commissioner McDowell made the right decision to recuse himself in this proceeding, and FCC General Counsel Sam Feder's opinion said nothing that should cause the Commissioner to change his view. The opinion made a tepid case at best for Commissioner McDowell to participate. Feder seemed to go out of his way to stress that it was McDowell's decision to participate. The Feder memo said it was a ďvery, very close callĒ whether McDowell should take part, and that reasonable parties could disagree on a decision. Indeed, the opinion cited the director of the Office of Government Ethics as saying he would decide against authorizing McDowell to participate. This indicates to us McDowell is on safer ground staying out and letting negotiations continue. If anything, this memo counsels extreme caution for McDowell."

The PK has previously argued that the FCC should condition its approval of the merger upon a network neutrality mandate. FCC Chairman Martin, who opposes imposing such conditions, needs a third vote to win approval for an unburdened merger. Reed Hundt, who was Chairman of the FCC from 1993 through 1997, is a member of the PK Board of Directors.

Josh Silver, head of the Free Press, another group that favors network neutrality mandates, stated in a release that "Pressing Commissioner McDowell to violate his ethical standards and cast the deciding vote on this mega-merger is a flagrant affront to the publicís demand for ethical and impartial policymaking." He added that "The proposed merger of AT&T and BellSouth would constitute the largest merger in the history of U.S. telecommunications and effectively resurrect Ma Bell. This new behemoth would dominate the broadband market and wield immense power over what we see and do online."

See also, story titled "Martin and Congressional Leaders Exchange Letters Re AT&T BellSouth Merger" in TLJ Daily E-Mail Alert No. 1,500, December 7, 2006.

 
GAO Reports on Overlap Between NIPLECC and STOP Programs

12/11. The Government Accountability Office (GAO) released a report [57 pages in PDF] titled "Intellectual Property: Strategy for Targeting Organized Piracy (STOP) Requires Changes for Long-term Success".

The report covers two related federal programs, the National Intellectual Property Law Enforcement Coordination Council (NIPLECC), which is created by statute, and the Strategy for Targeting Organized Piracy (STOP), which is an initiative of the current administration.

The report finds that "NIPLECC and STOP originated under different authorities, but the lines between them have become increasingly blurred, creating overlapping structures to protect and enforce IP rights. NIPLECC is a coordinating council created by Congress in 1999, while STOP is a strategy initiated by the White House in 2004 under the auspices of the National Security Council, with a strong coordination component; both involve nearly the same agencies."

The report states that "STOP is a good first step toward a comprehensive, integrated national strategy to protect and enforce U.S. intellectual property, and it has energized agency efforts. However, we found that STOPís full potential as a strategy is limited because it does not fully address the six desirable characteristics of an effective national strategy."

The report also notes that the "NIPLECC retains an image of inactivity among the private sector". On the other hand, it states that the "authority and influence STOP enjoys as a presidential initiative could disappear after the current administration."

People and Appointments

12/7. House Democrats selected Rep. John Conyers (D-MI) to be Chairman of the House Judiciary Committee (HJC) in the 110th Congress. He was the ranking Democrat in the 109th Congress. House Republicans selected Rep. Lamar Smith (R-TX) to be the ranking ranking Republican. He was the Chairman of the Subcommittee on Courts, the Internet and Intellectual Property. Rep. James Sensenbrenner (R-WI) was Chairman in the 109th Congress. See also, Rep. Smith's release.

12/7. House Democrats selected Rep. John Dingell (D-MI) to be Chairman of the House Commerce Committee (HCC) in the 110th Congress, which meets in January of 2007. He was the ranking Democrat in the 109th Congress.

12/7. House Democrats selected Rep. Charles Rangel (D-NY) to be Chairman of the House Ways and Means Committee in the 110th Congress. He is currently the ranking Democrat. House Republicans selected Rep. Jim McCrery (R-LA) to be the ranking Republican. Rep. Bill Thomas (R-CA), the outgoing Chairman, did not seek re-election.

12/7. House Democrats selected Rep. Henry Waxman (D-CA) to be Chairman of the House Government Reform Committee in the 110th Congress. House Republicans selected Rep. Tom Davis (R-VA) to be the ranking Republican. Rep. Davis was the Chairman in the 108th and 109th Congresses.

12/7. House Democrats selected Rep. Bart Gordon (D-TN) to be Chairman of the House Science Committee in the 110th Congress. House Republicans selected Rep. Ralph Hall (R-TX) to be the ranking Republican. Rep. Sherwood Boehlert (R-NY), the outgoing Chairman, did not seek re-election. See also, HSC release.

12/7. House Democrats selected Rep. Barney Frank (D-MA) to be Chairman of the House Financial Services Committee in the 110th Congress. He is currently the ranking Democrat. House Republicans selected Rep. Spencer Bachus (R-AL) to be the ranking Republican. Rep. Mike Oxley (R-OH), the outgoing Chairman, did not seek re-election. Rep. Bachus stated in a release that the matters that "await the committee's attention during the next Congress" include "data security" and "Sarbanes-Oxley Act implementation".

12/7. House Democrats selected Rep. David Obey (D-WI) to be Chairman of the House Appropriations Committee in the 110th Congress. He was the ranking Democrat in the 109th Congress. House Republicans selected Rep. Jerry Lewis (R-CA) to be the ranking Republican. Rep. Lewis was the Chairman in the 109th Congress.

More News

12/11. The Federal Communications Commission (FCC) renewed the charter for its Advisory Committee on Diversity for Communications in the Digital Age for a two year period ending on December 5, 2008. See, notice in the Federal Register, December 11, 2006, Volume 71, Number 237, at Page 71543.

12/11. The Government Accountability Office (GAO) released a report [114 pages in PDF] titled "Information Technology: DOD Needs to Ensure That Navy Marine Corps Intranet Program Is Meeting Goals and Satisfying Customers".

12/8. The U.S. District Court (DC) issued a Magistrate Judge's order and memorandum opinion [15 pages in PDF] regarding pretrial discovery disputes in Robert Steinbuch v. Jessica Cutler and Ann Marie Cox. This is a civil action for invasion of privacy and intentional infliction of emotional distress brought by a former Senate Judiciary Committee (SJC) counsel for Sen. Mike DeWine (R-OH) against a former staff assistant for Sen. DeWine in connection with statements that she made in an internet blog. See also, original complaint [PDF]. This is D.C. No. 05-970 (PLF/JMF). Magistrate Judge John Facciola wrote the opinion. Judge Paul Friedman is the presiding Judge.

Washington Tech Calendar
New items are highlighted in red.
Monday, December 11

The House will next meet at 12:00 NOON on Tuesday, January 4, 2007. See, HConRes 503.

The Senate will next meet at 12:00 NOON on Tuesday, January 4, 2007.

8:50 AM - 1:30 PM. The American Enterprise Institute (AEI) will host an event titled "Tax Havens and Foreign Direct Investment". The luncheon speaker will be Rep. Bill Thomas (R-CA), the outgoing Chairman of the House Ways and Means Committee. See, notice. Location: AEI,12th floor, 1150 17th St., NW,

9:00 AM - 3:30 PM. Day one of a two day meeting of the National Commission on Libraries and Information Science (NCLIS). The agenda includes discussion of digitization. See, notice in the Federal Register, November 28, 2006, Vol. 71, No. 228, at Pages 68845-68846. Location: Dining Room A, Madison Building, Library of Congress, 101 Independence Ave., SE.

4:00 - 7:00 PM. The Progress and Freedom Foundation (PFF) will host its holiday party. RSVP to Eileen Goulding at EGoulding at pff dot org or 202-289-8928. Location: Suite 500, 1444 Eye St., NW.

EXTENDED TO JANUARY 11. Deadline to submit reply comments to the Federal Communications Commission (FCC) regarding the intercarrier compensation reform plan known at the Missoula Plan. This proceeding is titled "Developing a Unified Intercarrier Compensation Regime" and numbered CC Docket No. 01-92. See, notice in the Federal Register: September 13, 2006, Vol. 71, No. 177, at Pages 54008-54009. See, extension notice in the Federal Register, December 6, 2006, Vol. 71, No. 234, at Pages 70709-70710.

Tuesday, December 12

9:00 AM - 12:00 NOON. Day two of a two day meeting of the National Commission on Libraries and Information Science (NCLIS). The agenda includes discussion of digitization. See, notice in the Federal Register, November 28, 2006, Vol. 71, No. 228, at Pages 68845-68846. Location: Large Conference Room 642, Madison Building, Library of Congress, 101 Independence Ave., SE.

9:00 AM - 5:00 PM. Day one of a two day meeting of the National Institute of Standards and Technology's (NIST) Visiting Committee on Advanced Technology. See, notice in the Federal Register: November 28, 2006, Vol. 71, No. 228, at Page 68800. Location: Employees Lounge, Administration Building, NIST, Gaithersburg, MD.

10:00 AM. The Federal Communications Commission's (FCC) Commercial Mobile Service Alert Advisory Committee will hold its first meeting. See, FCC release [PDF]. Location: FCC, Commission Meeting Room, TW-C305, 445 12th Street, SW.

6:00 - 9:30 PM. The DC Bar Association will host a continuing legal education (CLE) seminar titled "2006 Intellectual Property Law Series, Part 1: Trademarks, Copyrights and Law of the Internet". The speakers will include Brian Banner (Rothwell Figg Ernst & Manbeck), Beckwith Burr (Wilmer Hale), and Terence Ross (Gibson Dunn & Crutcher). The price to attend ranges from $80 to $115. 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 nominations to the Federal Communications Commission (FCC) 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. See, FCC's Public Notice [PDF] and story titled "House and Senate Approve Port Security Bill With Tech Provisions" in TLJ Daily E-Mail Alert No. 1,461, October 4, 2006.

Deadline to submit comments to the President's National Security Telecommunications Advisory Committee (NSTAC) in advance of its December 19, 2006, meeting. See, notice in the Federal Register, December 4, 2006, Vol. 71, No. 232, at Pages 70413.

Wednesday, December 13

8:00 AM. The Federal Communications Bar Association (FCBA) will host a breakfast. The speaker will be John Grimes [PDF] Assistant Secretary of Defense for Networks and Information Integration / CIO. See, registration form [PDF]. Registrations and cancellations are due by 5:00 PM on December 7. The price to attend ranges from $30 to $55. Location: Mayflower Hotel, 1127 Connecticut Ave., NW.

9:00 - 11:00 AM. Day two of a two day meeting of the National Institute of Standards and Technology's (NIST) Visiting Committee on Advanced Technology. See, notice in the Federal Register: November 28, 2006, Vol. 71, No. 228, at Page 68800. Location: Employees Lounge, Administration Building, NIST, Gaithersburg, MD.

10:00 AM - 12:00 NOON. The EMC Corporation will host a panel discussion on the changes to the Federal Rules of Civil Procedure (FRCP) that took effect on December 1, 2006. The speakers will include US Magistrate Judge David Waxse (who has written opinions on electronic discovery), Thomas Allman (Mayer Brown Rowe & Maw), and Chris Panagiotopoulos (Director of Information Technology of LifeBridge Health, Inc.). Press contact: Erin Zeitler, EZeitler at outcastpr dot com or 212-905-6047. Location: Grand Hyatt Washington, 1000 H Street, NW.

10:30 AM - 12:30 PM. The National Telecommunications and Information Administration NTIA) Commerce Spectrum Management Advisory Committee will hold its first meeting. The agenda includes "(1) Discussion of Committee organization and future agendas and (2) Briefings on matters related to the President's Spectrum Policy Initiative." See, notice in the Federal Register, November 28, 2006, Vol. 71, No. 228, at Page 68808. Location: Hoover Building, Room 6059, 1401 Constitution Ave., NW.

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, FCC notice [PDF] and notice in the Federal Register, November 1, 2006, Vol. 71, No. 211, at Page 64278. Location: FCC, Commission Meeting Room, Room TW-C305, 445 12th St., SW.

12:00 NOON. The Cato Institute will host a panel discussion on the book [Amazon] titled "Overblown: How Politicians and the Terrorism Industry Inflate National Security Threats, and Why We Believe Them". The speakers will include James Gilmore (former Governor of Virginia) and John Mueller (author). See, notice and registration page. Lunch will be served after the program. Location: Cato, 1000 Massachusetts Ave., NW.

TIME? The National Institute of Standards and Technology (NIST) will host a conference titled "2nd Annual NIST/USMS Telemedicine Workshop". See, notice. Location: National Institutes of Health (NIH), Natcher Center, Building 45, 9000 Rockville Pike, Bethesda, MD.

6:00 - 8:15 PM. The DC Bar Association will host a continuing legal education (CLE) seminar titled "2006 Intellectual Property Law Year in Review: 2-Part Series: Patent Law Update". The speakers will include Bradley Wright (Banner & Witcoff) and Eric Wright (Morgan & Finnegan). The price to attend ranges from $80 to $115. For more information, call 202-626-3488. See, notice. Location: D.C. Bar Conference Center, 1250 H Street NW, B-1 Level.

Thursday, December 14

9:00 AM - 5:00 PM. Day one of a two day conference hosted by the Federal Communications Bar Association (FCBA) and the Practicing Law Institute titled "Telecommunications Policy and Regulation". See, agenda [MS Word] and registration form [MS Word]. The price to attend ranges from $1,165.50 to $1,295. The price for FCC employees is $25. Location: Washington Hilton Hotel, 1919 Connecticut Ave., NW.

RESCHEDULED FOR DECEMBER 20. 9:30 AM. The Federal Communications Commission (FCC) will hold a meeting. The event will be webcast by the FCC. Location: FCC, 445 12th Street, SW, Room TW-C05 (Commission Meeting Room).

Deadline to submit initial comments to the Federal Communications Commission (FCC) regarding the National Aeronautics and Space Administration's (NASA) request for a waiver of the FCC's Calling Party Number rules. This proceeding is CC Docket No. 91-281. See, notice in the Federal Register, November 29, 2006, Vol. 71, No. 229, at Pages 69094-69096.

Friday, December 15

9:00 AM - 12:45 PM. Day two of a two day conference hosted by the Federal Communications Bar Association (FCBA) and the Practicing Law Institute titled "Telecommunications Policy and Regulation". See, agenda [MS Word] and registration form [MS Word]. The price to attend ranges from $1,165.50 to $1,295. The price for FCC employees is $25. Location: Washington Hilton Hotel, 1919 Connecticut Ave., NW.

9:30 AM - 12:30 PM. The National Archives and Records Administration (NARA) Information Security Oversight Office's (ISOO) Public Interest Declassification Board (PIDB) will hold a meeting. See, notice in the Federal Register, December 5, 2006, Vol. 71, No. 233, at Pages 70550-70551. Location: NARA, Rooms 500 and 501, 700 Pennsylvania Ave., NW.

Deadline to submit initial comments to the Federal Communications Commission (FCC) to assist the Wireless Telecommunications Bureau (WTB) in drafting a report on the ability of persons with hearing disabilities to access digital wireless telecommunications. See, FCC Public Notice [4 pages in PDF] (DA 06-2285). This proceeding is WT Docket No. 06-203.

Deadline to submit initial comments to the Office of the US Trade Representative regarding the operation, implementation and effectiveness of all trade agreements regarding telecommunications products and services to assist it in preparing its annual Section 1377 report. See, notice in the Federal Register, November 15, 2006, Vol. 71, No. 220, at Pages 66563-66564.

Saturday, December 16

Hanukkah.

Monday, December 18

Effective date of the Report and Order (R&O) portion of the Federal Communications Commission's (FCC) R&O and Further Notice of Proposed Rulemaking (FNPRM) in its TV white space proceeding. This item is FCC 06-156 in ET Docket Nos. 04-186 and 02-380. The FCC adopted this item at an October 12, 2006, meeting, and released it on October 18, 2006. See, story titled "FCC Adopts Order and FNPRM Regarding TV White Space" in TLJ Daily E-Mail Alert No. 1,467, October 12, 2006, and notice in the Federal Register, November 17, 2006, Vol. 71, No. 222, at Pages 66897-66905.

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