Tech Law Journal Daily E-Mail Alert
December 18, 2006, Alert No. 1,507.
Home Page | Calendar | Subscribe | Back Issues | Reference
McDowell Disqualifies Himself in AT&T BellSouth Merger Proceeding

12/18. Federal Communications Commission (FCC) Commissioner Robert McDowell released a statement [40 pages in PDF] regarding the FCC's review of the merger of AT&T and BellSouth in which he announced that "I disqualify myself from this matter".

He explained at length the method by which he reached this decision.

Robert McDowellMcDowell (at left) stated that "I have also tried hard to encourage some of my colleagues on the Commission to negotiate in good faith – sadly, to no avail."

"Sadly, I fear that my recusal from this matter has been used as a pawn by some to forgo meaningful and sincere negotiations," said McDowell.

This leaves the Commission with four Commissioners participating in the proceeding. Michael Copps and Jonathan Adelstein want to impose substantial conditions upon approval, such as a broad network neutrality mandate. Kevin Martin and Deborah Tate oppose such action by the FCC. The Department of Justice, which has antitrust merger review authority, approved the merger long ago without any conditions.

FCC Chairman Kevin Martin stated in a release [PDF] that "I appreciate Commissioner McDowell's thoughtful consideration and respect his decision to abstain. My goal in recent weeks has been to ensure that the Commission acted on the transaction. The Commission is not obligated to reach a particular outcome. However, the Commission is responsible for making a determination in a timely fashion. With Commissioner McDowell having made his decision, I will continue to try to work with my colleagues to bring our consideration of this merger to conclusion."

FCC Commissioner Michael Copps stated in a release [PDF] that "Finally we have clarity on who will be participating in this proceeding. That should give some juice to our ongoing discussions." He did not provide a definition for this usage of the word "juice".

Rep. John Dingell (D-MI) stated in a release that "I applaud Commissioner McDowell for adhering to high ethical standards in this matter. In disqualifying himself, Commissioner McDowell has shown that he is a true public servant and a man of principle."

Rep. Dingell, who is set to become Chairman of the House Commerce Committee in the 110th Congress, continued that "With the closing of this ungainly sideshow, the Commission can get on with the proper performance of its duties. Now more than ever, the four remaining commissioners have a responsibility to analyze the transaction carefully, fairly and openly, and in a way that avoids imposing burdens that have nothing to do with the transaction. The continued recusal of Commissioner McDowell should not be viewed as an opportunity for individual commissioners to extract carte blanche from the merging parties."

He concluded that "It is in the interest of the public and, in particular, the companies' workers that this matter is brought to a fair and timely resolution."

Gigi Sohn, head of the Public Knowledge, stated in a release that "It is now up to Chairman Martin to negotiate a balanced set of terms and conditions with Commissioners Copps and Adelstein that will protect the public interest and the freedom of the Internet."

This FCC proceeding is WC Docket No. 06-74.

Antitrust Division Amends 2001 Merger Review Process Initiative

12/15. The Department of Justice's (DOJ) Antitrust Division issued its amended Merger Review Process Initiative (MRPI). This revises the 2001 MRPI.

The DOJ also issued an amended model request for addition information and documentary material.

Thomas Barnett, the Assistant Attorney General in charge of the Antitrust Division, stated in a release that "The amendments to the Division's already successful Merger Review Process Initiative are part of our ongoing efforts to reduce enforcement burdens, while at the same time preserve our ability to conduct thorough investigations and protect consumers from anticompetitive transactions."

The DOJ release continues that "The amendments announced today include a voluntary option that will enable companies to reduce significantly the duration and cost of merger investigations. The new option would limit the document search required by a Division information request, known as a "second request," to certain central files and a targeted list of 30 employees whose files must be searched for responsive documents. This option will be made available to parties to most transactions that are reviewed by the Division, and will be conditioned on certain timing and procedural agreements that, among other things, protect the Division's ability to obtain appropriate discovery should it decide to challenge the deal in federal district court."

DOT Seeks Applications for Funding of IT Based Traffic Management Programs

12/18. The Department of Transportation (DOT) published a notice in the Federal Register regarding its Intelligent Transportation Systems' (ITS) Operational Testing to Mitigate Congestion (OTMC) program. The DOT may give up to $100 Million over three years as a part of this ITS-OTMC program to subsidize metropolitan entities to develop technology based strategies to reduce traffic congestion.

The notice states that the DOT will consider subsidizing the following types of programs: "demand management pricing strategies, advanced traffic signal control, innovative incident detection and management strategies, integrated corridor management, parking management tied to transit service, high occupancy/toll (HOT) lanes, managed lanes, ramp control, lane-keeping devices or longitudinal control designed to enhance spatial efficiency on existing highways, precision docking, signal priority systems for buses, contactless fare collection, real-time travel information (bus arrival times, schedules, emergency information to first-responders, etc.), advanced traveler information systems, parking alerts or automatic vehicle locator systems." (Parentheses in original. Footnote omitted.)

The notice elaborates on congestion based pricing strategies. It states that congestion pricing does not involve charges a fixed fee for road use, but rather involves "charging drivers a user fee that varies by traffic volumes or time of day, thus balancing supply and demand", and by collecting fees "electronically at highway speeds". The notice states that this will help highway managers "to maximize throughput and the free flow of traffic".

The DOT notice continues that "Technology facilitates this variability by enabling the collection of user fees at highway speeds through the use of transponders, Global Positioning Systems (GPS), or cameras. With transponders, or ``tags,´´ tolls may be collected as vehicles pass under overhead antennae. With GPS technology, like that used on Germany's autobahns, an in-vehicle device records charges based on the vehicle's location, and periodically uploads a summary of charges to a processing center along with payments. Technology can also provide options for occasional users of these roads to prepay for their trip via kiosks or the internet."

The DOT notice does not address uses of data collected by such technologies for purposes other than traffic and congestion management.

The deadline to submit ITS-OTMC program applications is April 30, 2007. See, notice in the Federal Register, December 18, 2006, Vol. 71, No. 242, at Pages 75806-75810.

Bernanke Speaks About Growth in China

12/15. Ben Bernanke, Chairman of the Federal Reserve Board, gave a speech in Beijing, People's Republic of China, titled "The Chinese Economy: Progress and Challenges".

He discussed and explained the growth of the PRC's economy since it began to reform in 1978. He praised and advocated free markets and free trade.

He said that "Well-defined property rights (including intellectual property rights), transparent accounting standards, good corporate governance, effective supervisory oversight of banks and markets, the consistent enforcement of contracts, and rules that allow for orderly bankruptcy proceedings for unprofitable firms all help to support efficient investment. China has made progress in developing these critical institutions, but continued focus on these areas would provide large economic benefits in the long run." He did not dwell on intellectual property rights." (Parentheses in original.)

He said that China also faces some significant risks and imbalances. "The principal risk arises from the likelihood that capital is not being allocated as efficiently as possible, the result of an undervalued exchange rate and of capital markets that, despite positive steps, remain distorted and underdeveloped."

He also said that the US "must also do its part, in particular by increasing its own rate of national saving and by avoiding protectionism."

Bernanke also made some comments about the nature of innovation. For example, he said that "Substantial experience has shown that modern economies, including those in early stages of development, are too complex to be managed effectively on a centralized basis. Prices set in free and competitive markets serve several critical functions, among them ... and providing incentives to engage in ... innovation ..."

He also stated that "small- and medium-sized enterprises are emerging as an engine of job creation in China -- as they are in the United States -- even as they promote innovation and help to create a more dynamic and diversified economy."

Washington Tech Calendar
New items are highlighted in red.
Monday, December 18

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

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.

Tuesday, December 19

10:00 AM. Kyle McSlarrow, head of the National Cable & Telecommunications Association (NCTA) will hold a "Media teleconference to highlight cable's 2006 public policy activities". The dial in number is 1-888-384-9090. The passcode is 210074. Press contact: Rob Stoddard or Brian Dietz at 202-222-2350.

TIME CHANGE. 1:00 - 4:00 PM. 9:00 AM - 1:00 PM. The President's National Security Telecommunications Advisory Committee (NSTAC) will hold a partially closed meeting. At 1:00 PM  11:00 AM - 1:00 PM, the NSTAC will meet in public to receive comments from government agencies, to discuss the work of the NSTAC's Emergency Communications and Interoperability Task Force (ECITF), and to discuss the work of the Telecommunications and Electric Power Interdependency Task Force (TEPITF). At 3:00 PM 9:00 AM - 11:00 PM, the NSTAC will meet in secret to discuss the Global Infrastructure Resiliency (GIR) Report. See, original notice in the Federal Register, December 4, 2006, Vol. 71, No. 232, at Pages 70413, and revised notice in the Federal Register, December 18, 2006, Vol. 71, No. 242, at Page 75764. Location: U.S. Chamber of Commerce, 1615 H St., NW.

2:30 - 4:30 PM. The Department of Labor's Labor Advisory Committee for Trade Negotiations and Trade Policy will hold a meeting. See, notice in the Federal Register: December 15, 2006, Vol. 71, No. 241, at Page 75584. Location: USTR Annex Building, Rooms 1 and 2, 1724 F St., NW.

5:00 - 7:00 PM. The Free Press will host a party to promote the book titled "The Case Against Media Consolidation: Evidence on Concentration, Localism and Diversity" [no Amazon listing]. The book is an anthology of essays by Larry Blosser, Mark Cooper, Steven Cooper, Marjorie Heins, Jeannine Kenney, Gene Kimmelman, Glenn Manishin, Philip Napoli, Ben Scott and Derek Turner, advocating government regulation of media. RSVP to Jen Howard at 202-265-1490 x22 or jhoward at freepress dot net. Location: Free Press, 1st Floor Conference Room, 501 3rd Street, NW.

Wednesday, December 20

RESCHEDULED FROM DECEMBER 14. 9:30 AM. The Federal Communications Commission (FCC) will hold a meeting. See, agenda [PDF]. 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 petition for declaratory ruling filed by One Stop Financial, Inc., Group Discounts, Inc., 800 Discounts, Inc., and Winback & Conserve Program, Inc. pertaining to the AT&T tariff at issue, and "any other issues left open by the D.C. Circuit’s Opinion in AT&T Corp. v. FCC", 394 F.3d 933. This proceeding is WC Docket No. 06-210. See, FCC Public Notice [3 pages in PDF] (DA 06-2360).

Thursday, December 21

10:00 AM. The Federal Communications Commission's (FCC) Advisory Committee on Diversity for Communications in the Digital Age will meet. See, notice in the Federal Register: December 6, 2006, Vol. 71, No. 234, Page 70766. Location: FCC, Room 7-C753, 445 12th St., SW.

EXTENDED TO JANUARY 16. Extended 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 also, original notice in the Federal Register, August 9, 2006, Vol. 71, No. 153, at Pages 45511-45515, order [PDF] extending deadlines, and order [PDF] further extending reply comment deadline.

Friday, December 22

Deadline to submit comments to the National Institute of Standards and Technology's (NIST) Computer Security Division regarding its Draft Special Publication 800-82 [164 pages in PDF], titled "Guide to Supervisory Control and Data Acquisition (SCADA) and Industrial Control Systems Security".

Deadline to submit reply comments to the Federal Communications Commission (FCC) on the Supporters of the Missoula Plan's proposed interim process to address phantom traffic issues. See, FCC Public Notice [PDF] (DA 06-2294).

5:00 PM. Deadline to submit requests to the Department of Commerce's (DOC) Bureau of Industry and Security's (BIS) Deemed Export Advisory Committee (DEAC) to speak at the DEAC's meeting of January 22-23, 2007, in Santa Clara, California. See, notice in the Federal Register, December 11, 2006, Vol. 71, No. 237, Page 71508-71509.

Monday, December 25


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

More News

12/18. The Privacy and Civil Liberties Oversight Board (PCLOB) published a notice in the Federal Register that states that it seeks public comments regarding redressing errors and ameliorating false positives associated with the use of watch list data for aviation and other security screening purposes. The notice seeks no deadline for submitting comments. See, Federal Register, December 18, 2006, Vol. 71, No. 242, at Pages 75752-75753.

12/15. The Federal Communications Commission (FCC) adopted, but did not release, a Report and Order and Order on Reconsideration that amends the FCC's rules for the Amateur Radio Service. The FCC issued a release [PDF] that describes this order. It states that the amendments revise "the examination requirements for obtaining a General Class or Amateur Extra Class amateur radio operator license and revising the operating privileges for Technician Class licensees. In addition, the Order resolves a petition filed by the American Radio Relay League, Inc. (ARRL) for partial reconsideration of an FCC Order on amateur service rules released on October 10, 2006." This order is FCC 06-149 in WT Docket Nos. 04-140 and 05-235.

12/15. The Federal Communications Commission (FCC) issued a Public Notice [PDF] regarding the Center for Public Integrity's action against the FCC under the federal Freedom of Information Act (FOIA) to compel the FCC to release all Form 477s filed with the FCC. The FCC mandates the filing of Form 477 twice per year to enable it to study the extent of local telecommunications competition and deployment of broadband services. See, FCC's Form 477 web page. This case is Center for Public Integrity v. FCC, U.S. District Court for the District of Columbia, D.C. No. 06-1644 (RMC).

About Tech Law Journal

Tech Law Journal publishes a free access web site and subscription e-mail alert. The basic rate for a subscription to the TLJ Daily E-Mail Alert is $250 per year. However, there are discounts for subscribers with multiple recipients. Free one month trial subscriptions are available. Also, free subscriptions are available for journalists, federal elected officials, and employees of the Congress, courts, and executive branch. The TLJ web site is free access. However, copies of the TLJ Daily E-Mail Alert are not published in the web site until one month after writing. See, subscription information page.

Contact: 202-364-8882.
P.O. Box 4851, Washington DC, 20008.

Privacy Policy
Notices & Disclaimers
Copyright 1998 - 2006 David Carney, dba Tech Law Journal. All rights reserved.