12/28. AT&T submitted to the Federal Communications Commission (FCC) a document [20 pages in PDF] that contains a collection of conditions that it proposes be imposed upon it in return for the FCC's approval of the merger of AT&T and BellSouth. It includes a set of proposals regarding network neutrality with a duration of two years.

AT&T wrote that "merger opponents continue to demand even more concessions, including those they were unable to obtain from Congress, or that are being considered in pending, industry-wide rulemaking proceedings. In the face of these continuing demands, the merger has yet to be approved. Accordingly, in order to break the impasse, and in the interest of facilitating the speediest possible approval of the merger by the Commission, Applicants agree to the attached merger commitments".

Network Neutrality. AT&T's proposal states first that "Effective on the Merger Closing Date, and continuing for 30 months thereafter, AT&T/BellSouth will conduct business in a manner that comports with the principles set forth in the Commission's Policy Statement, issued September 23, 2005".

This Policy Statement [3 pages in PDF] is FCC 05-151. The FCC announced this Policy Statement on August 5, 2005. See, story titled "FCC Adopts a Policy Statement Regarding Network Neutrality" in TLJ Daily E-Mail Alert No. 1,190, August 8, 2005. The FCC released the text of the Policy Statement on September 23, 2005. See, story titled "FCC Releases Policy Statement Regarding Internet Regulation" in TLJ Daily E-Mail Alert No. 1,221, September 26, 2005.

AT&T's proposal continues that "AT&T/BellSouth also commits that it will maintain a neutral network and neutral routing in its wireline broadband Internet access service. This' commitment shall be satisfied by AT&T/BellSouth's agreement not to provide or to sell to Internet content, application, or service providers, including those affiliated with AT&T/BellSouth, any service that privileges, degrades or prioritizes any packet transmitted over AT&T/BellSouth's wireline broadband Internet access service based on its source, ownership or destination." (Footnote omitted.)

It also provides that "This commitment shall apply to AT&T/BellSouth's wireline broadband Internet access service from the network side of the customer premise equipment up to and including the Internet Exchange Point closest to the customer's premise, defined as the point of interconnection that is logically, temporally or physically closest to the customer's premise where public or private Internet backbone networks freely exchange Internet packets."

It also provides that "This commitment does not apply to AT&T/BellSouth's enterprise managed IP services, defined as services available only to enterprise customers 16 that are separate services from, and can be purchased without, AT&T/BellSouth's wireline broadband Internet access service, including, but not limited to, virtual private network (VPN) services provided to enterprise customers. This commitment also does not apply to AT&T/BellSouth's Internet Protocol television (IPTV) service. These exclusions shall not result in the privileging, degradation, or prioritization of packets transmitted or received by AT&T/BellSouth's non-enterprise customers' wireline broadband Internet access service from the network side of the customer premise equipment up to and including the Internet Exchange Point closest to the customer's premise, as defined above." (Footnote omitted.)

AT&T's proposal also provides that these network neutrality conditions be sunsetted two years after the merger closing date, or upon the effective date of "any legislation enacted by Congress subsequent to the Merger Closing Date that substantially addresses ``network neutrality´´ obligations of broadband Internet access providers, including, but not limited to, any legislation that substantially addresses the privileging, degradation, or prioritization of broadband Internet access traffic", whichever comes first.

Other Provisions. The proposal states that "For a period of three years after the Merger Closing Date, AT&T/BellSouth will maintain at least as many discrete settlement-free peering arrangements for Internet backbone services with domestic operating entities within the United States as they did on the Merger Closing Date".

The proposal states that "AT&TBellSouth will repatriate 3,000 jobs that are currently outsourced by BellSouth outside of the U.S."

The proposal states that "By December 31, 2007, AT&T/BellSouth will offer broadband Internet access service (i.e., Internet access service at speeds in excess of 200 kbps in at least one direction) to 100 percent of the residential living units in the AT&TBellSouth in-region territory." (Parentheses in original.) Although, 15% of this will be via satellite or Wi-Fi fixed wireless.

The document also addresses unbundled network elements, interconnection agreements, special access, stand alone DSL service, DSL transmission service for ISPs, DSL prices, forbearance, and other topics.

Reaction. Mark Cooper, head of the Consumer Federation of America, stated in a release that "Until Commissioner McDowell decisively removed himself from participation, AT&T showed no interest in allowing Net Neutrality to be included in this deal. But, in the end, they will have to accept language in the merger conditions that protects the free and open Internet. This will be a win for the public. By holding AT&T’s feet to the fire and demanding the Internet remain neutral, the FCC can maintain a level playing field for all. We’ll continue to work next year in Congress to ensure that the essential, consumer and innovation-friendly characteristics of the Internet are preserved as truly high-speed broadband networks are deployed."

Ben Scott of the Free Press stated in a release that "Copps and Adelstein stood firm in the face of intense pressure to ensure a fair deal for the public that would protect the neutral and open Internet. Making Net Neutrality a condition of the largest merger in telecommunications history would set an important precedent."

12/22. The U.S. Court of Appeals (DCCir) issued its opinion [30 pages in PDF] in Baker & Hostetler v. Department of Commerce, a Freedom of Information Act (FOIA) case involving access to Department of Commerce (DOC) records related to a trade dispute.

The law firm of Baker & Hostetler (B&A) represents Canadian companies that were involved in a trade dispute -- the softwood lumber dispute. B&A sought, under the FOIA, copies of 17 letters sent by US companies involved in the trade dispute to the DOC, and copies of 51 sets of DOC notes regarding the trade dispute. The DOC refused to produce the records. It asserted FOIA Exemption 4, which covers confidential commercial information, as to the 17 letters from US companies, and FOIA exemption 5, which covers privileged government documents, as to the 51 sets of DOC notes.

This article focuses on the Court of Appeals decision as to the 17 company letters and exemption 4. Although, the opinion also addresses jurisdiction, attorneys fees, and the exemption 5 issue.

B&A filed a complaint in U.S. District Court (DC) against the DOC alleging violation of the FOIA, which is codified at 5 U.S.C. § 552. The District Court held that B&A was not entitled to the documents.

B&A brought the present appeal. The Court of Appeals, in a divided opinion, affirmed in part and reversed in part. It held that B&A is not entitled to the 17 company letters. However, it is entitled to get copies of most of the DOC notes.

Subsection 552(b) provides that "This section does not apply to matters that are ... (4) trade secrets and commercial or financial information obtained from a person and privileged or confidential; (5) inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency".

The Court of Appeals first addressed subsection (b)(4) and the 17 company letters. It reasoned that for the exemption to apply, the letters must be both commercial or financial, and privileged or confidential. It first examined their commercial or financial nature.

The Court of Appeals wrote that it "must accept the District Court’s factual descriptions of the contents of the letters", and that the District Court must rely upon the agency's representations for an understanding of the material sought to be protected.

Pursuant to these principles, the Court of Appeals summarized the contents of the 17 company letters. It wrote that "according to the Department’s general summary of withheld documents (the Vaughn index), the 17 third-party letters contain “information that the submitter has voluntarily made available in confidence to the U.S. Government in connection with negotiations of a long-term agreement to resolve the trade dispute over softwood lumber and which is commercial and financial in nature.” ... The letters include “information about the domestic industry’s commercial concerns,” and they “reflect the commercial strengths and challenges faced by U.S. lumber companies in general, even outside the context of the negotiations.” ... Each letter contains at least one of the following: the association’s assessment of the commercial strengths and weaknesses of the U.S. lumber industry; recommendations for settling or facilitating negotiations pertaining to the U.S. trade dispute with Canada; an analysis of the effect such measures would have on the commercial activities and competitive position of domestic lumber companies; the U.S. lumber industry’s requirements for achieving a competitive softwood lumber market; the U.S. lumber industry’s views regarding the status of negotiations between the United States and Canada; or a description of the competitive challenges that domestic lumber companies face." (Citations omitted.)

The Court of Appeals concluded that since the "letters describe favorable market conditions for domestic companies, and their disclosure would help rivals to identify and exploit those companies’ competitive weaknesses", they "contain commercial information within the meaning of Exemption 4."

The Court of Appeals next examined the confidential nature of the letters. It concluded that while voluntarily submitted, they are confidential. It rejected B&A's argument that the letters are not confidential because the Tariff Act requires that they be made a part of the official record.

Hence, the 17 letters are exempted from production under the FOIA.

However, the Court of Appeals reversed and remanded as to most of the notes of the DOC.

The opinion also addresses jurisdiction. The Tariff Act provides that the Court of International Trade has exclusive jurisdiction over any action involving trade tariffs, duties and other taxes. The Court of Appeals held that "The Tariff Act’s exclusive-jurisdiction provision does not apply here, however, because this is a FOIA suit for disclosure of agency records."

The opinion also addresses the adequacy of agency searches for records.

The opinion also addresses the recovery of attorneys fees by prevailing parties in FOIA litigation.

This case is Baker & Hostetler v. U.S. Department of Commerce, U.S. Court of Appeals for the District of Columbia, App. Ct. Nos. 05-5185 and 05-5350, appeals from the U.S. District Court for the District of Columbia, D.C. No. 02cv02522. Judge Kavanaugh wrote the opinion of the Court of Appeals, in which Judge Garland joined. Judge Henderson dissented in part.

12/15. The U.S. Court of Appeals (DCCir) issued its opinion [20 pages in PDF] in Nuvio v. FCC, denying several consolidated petitions for review of the Federal Communications Commission's (FCC) 2005 VOIP 911 order.

The FCC adopted its First Report and Order and Notice of Proposed Rulemaking [90 pages in PDF] on May 19, 2005, and released it on June 3, 2005. It is FCC 05-116 in WC Docket No. 04-36 and WC Docket No. 05-196.

The order portion of this item extends 911/E911 regulation to interconnected voice over internet protocol (VOIP) service providers. The order states that it requires compliance within 120 days of the effective date.

See also, stories titled "FCC Adopts Order Expanding E911 Regulation to Include Some VOIP Service Providers", "Summary of the FCC's 911 VOIP Order", "Opponents of FCC 911 VOIP Order State that the FCC Exceeded Its Statutory Authority", and "More Reaction to the FCC's 911 VOIP Order", in TLJ Daily E-Mail Alert No. 1,139, May 20, 2005. And see, story titled "FCC Releases VOIP E911 Order" in TLJ Daily E-Mail Alert No. 1,148, June 6, 2005.

The petitioners in this case are providers of VOIP service: Nuvio Corporation, Lightyear Network Solutions, LLC, Primus Telecommunications, Inc., Lingo, Inc., and i2 Telecom International, Inc.

The Court of Appeals offered this summary of the petitioners' arguments. "First, petitioners assert that the Order’s 120-day deadline for IVPs to provide E911 service to their users of nomadic, non-native VoIP service is an unexplained departure from the Commission’s precedent made without adequate regard to economic and technological obstacles. Petitioners also fault the Order for requiring that IVPs connect to the Wireline E911 network but failing to impose a corresponding duty on ILECs to permit this connection. Finally, petitioners contend that the Commission did not give adequate notice of the substance of the Order."

The Court of Appeals rejected all three arguments, and denied the petitions for review.

This case is Nuvio Corporation v. FCC and USA, respondents, and Verizon Telephone Companies and AT&T Corporation, intervenors, U.S. Court of Appeals for the District of Columbia, App. Ct. Nos. 05-1248, 05-1345, 05-1346, and 05-1347, petitions for review of a final order of the FCC. Judge Griffith wrote the opinion of the Court of Appeals, in which Judges Kavanaugh and Ginsburg joined.

12/28. President Bush issued an executive order that states, in part, that "All executive departments, independent establishments, and other governmental agencies shall be closed on January 2, 2007, as a mark of respect for Gerald R. Ford, the thirty-eighth President of the United States." However, this does not apply to offices that "should remain open for reasons of national security or defense or other essential public business".

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Notice of Inquiry [37 pages in PDF] regarding preparation of its annual report to the Congress regarding the status of competition in markets for the delivery of video programming. This NOI is FCC 06-154 in MB Docket No. 06-189. The FCC adopted this NOI at an October 12, 2006, meeting, and released it on October 20, 2006. See, stories titled "FCC Adopts NOI Regarding Video Competition" in TLJ Daily E-Mail Alert No. 1,467, October 12, 2006, and "FCC Releases NOI on Video Competition and Other Issues" in TLJ Daily E-Mail Alert No. 1,473, October 23, 2006. See also, notice in the Federal Register, November 17, 2006, Vol. 71, No. 222, at Pages 66946-66953.

Deadline to submit initial comments to the Federal Communications Commission (FCC) regarding competitive bidding procedures for Auction No. 72, the Phase II 220 MHz spectrum licenses auction scheduled to commence on June 20, 2007. See, notice in the Federal Register, December 20, 2006, Vol. 71, No. 244, at Pages 76332-76336.

5:00 PM. Deadline to submit requests to participate in the Copyright Office's and the U.S. Patent and Trademark Office's (USPTO) January 3 roundtable on the activities of the World Intellectual Property Organization (WIPO) regarding the proposed Treaty on the Protection of the Rights of Broadcasting Organizations. See, notice in the Federal Register, December 12, 2006, Vol., No. 238, at Pages 74565-74566.

New Year's Day.

The Federal Communications Commission (FCC) and other federal offices will be closed. See, Office of Personnel Management's (OPM) list of federal holidays and 5 U.S.C. § 6103. The House Press Gallery will be closed.

Executive departments and agencies will be closed in observance of the death of former President Ford.

12:30 PM. Rep. Barney Frank (D-MA), the incoming Chairman of the House Financial Services Committee, will give a speech. Prices vary. Location: Holeman Lounge, National Press Club, 529 14th St. NW, 13th Floor.

1:00 - 3:00 PM. The Copyright Office and the U.S. Patent and Trademark Office (USPTO) will host a roundtable the activities of the World Intellectual Property Organization (WIPO) regarding the proposed Treaty on the Protection of the Rights of Broadcasting Organizations. See, notice in the Federal Register, December 12, 2006, Vol., No. 238, at Pages 74565-74566. Location: Atrium Conference Room, USPTO, 600 Dulany Street, Madison West, 10th floor, Alexandria, VA.

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

Deadline to submit reply 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 comments to the Federal Communications Commission (FCC) regarding its collection of data regarding Specialized Mobile Radio (SMR) systems in the 800 MHz band. See, notice in the Federal Register, December 6, 2006, Vol. 71, No. 234, at Page 70765.

Deadline to submit reply comments to the Federal Communications Commission (FCC) regarding competitive bidding procedures for Auction No. 72, the Phase II 220 MHz spectrum licenses auction scheduled to commence on June 20, 2007. See, notice in the Federal Register, December 20, 2006, Vol. 71, No. 244, at Pages 76332-76336.

9:00 AM. The President's Council of Advisors on Science and Technology (PCAST) will meet. See, notice in the Federal Register, December 22, 2006, Vol. 71, No. 246, at Page 77019-77020. The PCAST web site states that this meeting will take place on January 9-10. Location: Congressional Ballroom, Renaissance Hotel, 999 9th St., NW.

10:00 AM. The Supreme Court will hear oral argument in Sinochem International v. Malaysia International Shipping, a petition for writ of certiorari to the U.S. Court of Appeals (3rdCir) in a case involving personal jurisdiction and the doctrine of forum non conveniens. See, SCUS calendar.

2:00 - 4:00 PM. The American Enterprise Institute (AEI) will host a book forum for John Taylor, author of Global Financial Warriors: The Untold Story of International Finance in the Post 9-11 World [Amazon]. The speakers will be Taylor (former Treasury Under Secretary for International Affairs), John Lipsky (International Monetary Fund), Faryar Shirzad (Goldman Sachs), and Steven Davis (AEI). See, notice. Location: AEI, 12th floor, 1150 17th St., NW.

12/26. The U.S. Court of Appeals (11thCir) issued its opinion [17 pages in PDF] in US v. Evans, a wire fraud case. The federal wire fraud statute, which is codified at 18 U.S.C. § 1343, provides, in part, that "Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, transmits or causes to be transmitted by means of wire, radio, or television communication in interstate or foreign commerce, any writings, signs, signals, pictures, or sounds for the purpose of executing such scheme or artifice, shall be fined under this title or imprisoned not more than 20 years, or both. ..." (Emphasis added.) The Court of Appeals construed the meaning of the clause "for the purpose of executing". The defendant argued that he did not send the faxed letter that formed the basis of his prosecution until after the scheme had reached fruition. The Court of Appeals affirmed his conviction. This case is USA v. Hubert Garland Evans, U.S. Court of Appeals for the 11th Circuit, App. Ct. No. 05-10624, an appeal from the U.S. District Court for the Southern District of Florida, D.C. No. 02-20451-CR-AJ.

12/22. The U.S. Court of Appeals (4thCir) issued its opinion [11 pages in PDF] in Sucampo Pharmaceuticals v. Astellas Pharma, a case regarding the enforceability of a forum selection clause. The clause was in an agreement that was incidental to a licensing agreement agreement between two pharmaceutical companies. It specified the courts of Tokyo, Japan. Sucampo filed a complaint in U.S. District Court (DMd) against Astellas alleging breach of contract. Astellas moved to dismiss based upon the forum selection clause. The District Court dismissed. The Court of Appeals affirmed. The forum selection clause is enforceable. This case is Sucampo Pharmaceuticals, Inc. v. Astellas Pharma, Inc., U.S. Court of Appeals for the 4th Circuit, App. Ct. No. 06-1036, an appeal from the U.S. District Court for the District of Maryland, at Greenbelt, D.C. No. CA-05-687-PJM.

12/14. The U.S. Court of Appeals (6thCir) issued its opinion [PDF] in Mike's Train House v. Lionel, a case involving misappropriation of trade secrets related to model trains, and unjust enrichment. The plaintiff, Mike's Train House, prevailed in the District Court, and obtained an award of over $40 Million. The Court of Appeals reversed. This case is Mike's Train House, Inc. v. Lionel LLC, Korea Brass and Yoo Chan Yang, U.S. Court of Appeals for the 6th Circuit, App. Ct. No. 05-1095, an appeal from the U.S. District Court for the Eastern District of Michigan, D.C. No. 00-71729.

12/28. President Bush named Paul Eckert to be Associate Counsel to the President. He was previously an attorney at the law firm of Wilmer Hale. See, White House release.

12/28. President Bush named Maggie Grant to be Deputy Assistant to the President and Director of Intergovernmental Affairs. See, White House release.

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