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February 14, 2007, Alert No. 1,537.
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Federal Reserve Reports on ICT and State of the Economy

2/14. The Board of Governors of the Federal Reserve System (FRB) released its annual report [31 pages in PDF] titled "Monetary Policy Report to the Congress". Among other topics, it details economic developments in 2006 regarding information and communications technologies (ICT).

Federal Reserve Board Chairman Ben Benanke is also testifying before House and Senate committees regarding this report this week. Bernanke also gave a speech last week in which he discussed ICT, productivity growth, the consequences for income inequalities, and how government policy makers should or should not react.

ICT Purchases. This FRB report states that "Real investment in high-technology equipment rose 9 percent in 2006, about the same average annual pace as in the preceding two years. Further decreases in the prices of high-technology equipment continued to reduce the user cost of this type of equipment. Real business spending for computing equipment increased 14½ percent, and software spending posted an 8 percent gain, both roughly comparable to their average rates of increase in the previous two years."

It adds that "Business outlays for communications equipment rose almost 7 percent in 2006. Spending for communications equipment was particularly robust in the early part of the year and was likely boosted in part by spending to replace equipment damaged by the hurricanes in the autumn of 2005. Investment in communications equipment last year continued to be supported by demand from telecommunications service providers that were expanding their broadband networks."

ICT Exports. The FRB report also addresses tech exports. "Export growth was spread fairly evenly across all major end-use categories, though exports of computers and semiconductors expanded noticeably more slowly than in 2005."

It also states that "By destination, exports to China and other emerging Asian economies grew very rapidly, as did those to South America. Exports to Mexico and western Europe rose at a more modest pace. Real exports of services were up a solid 6¾ percent for the year, double the pace of 2005."

ICT and Productivity. The report also addresses productivity growth. Numerous prior FRB reports, papers and speeches have argued that overall productivity has been affected by the adoption and use of new information technologies.

This report states that "The growth rate of labor productivity in the nonfarm business sector, which had slowed in 2004 and 2005 from an exceptionally rapid pace earlier in the decade, remained relatively subdued in 2006. Over the four quarters of 2006, output per hour of work in the nonfarm business sector increased 2 percent, compared with about a 3 percent average annual rate of increase during the first half of this decade and the second half of the 1990s."

It continues that "During that earlier period, productivity gains were spurred by the rapid pace of technological change, the growing ability of firms to use information and other technology to improve the efficiency of their operations, and increases in the amount of capital per worker. Despite the recent slowing in productivity growth, these underlying factors do not appear to have waned. Accordingly, the recent slowdown in labor productivity may be at least in part a temporary cyclical response to the moderation in the pace of economic activity in 2006 rather than a meaningful downshift in the longer-run trend."

Ben BernankeBernanke (at left) also expanded on nature and consequences of ICT related productivity growth in a speech on February 8, 2007 in Omaha, Nebraska.

He stated that "Economists have hypothesized that technological advances, such as improvements in information and communications technologies, have raised the productivity of high-skilled workers much more than that of low-skilled workers. High-skilled workers may have enjoyed this advantage because, for example, they may have been better able to make more effective use of computer applications, to operate sophisticated machinery, or to adapt to changes in workplace organization driven by new technologies."

He continued that "If new technologies tend to increase the productivity of highly skilled workers relatively more than that of less-skilled workers -- a phenomenon that economists have dubbed ``skill-biased technical change´´ -- then market forces will tend to cause the real wages of skilled workers to increase relatively faster. Considerable evidence supports the view that worker skills and advanced technology are complementary."

However, he added that this hypothesis does not explain everything. For example, it leaves unanswered the question of "why the sharp rise in investment in information technology in the 1990s was not accompanied by a higher rate of increase in wage inequality."

Nor, said Bernanke, "can it explain why the wages of workers in the middle of the distribution have grown more slowly in recent years than those of workers at the lower end of the distribution".

Bernanke also discussed the large wage gains at the top of the distribution, even in such non-ICT related jobs as professional baseball players. He speculated that the huge growth in sports salaries may be related to "increases in broadcast and merchandising revenues he might generate as a result of the confluence of new distribution channels (such as Internet-based broadcasts of games) and a larger and wealthier potential global audience".

He also suggested that ICT enables a wide range of "superstars", including "entertainers, investment bankers, lawyers, and various other professionals", to "apply their talents in what has increasingly become a global marketplace", and thus obtain higher incomes.

Policy Recommendations. After further discussion of trade, immigration, and globalization, Bernanke offered a few policy recommendations in his Omaha speech.

He opposed policy approaches "that would inhibit the dynamism and flexibility of our labor and capital markets or erect barriers to international trade and investment."

He added that "the advent of new technologies and increased international trade can lead to painful dislocations as some workers lose their jobs or see the demand for their particular skills decline. But hindering the adoption of new technologies or inhibiting trade flows would do far more harm than good, as technology and trade are critical sources of overall economic growth and of increases in the standard of living."

11th Circuit Rules on Privacy, DPPA and § 1983 Suits Against DMV Officials

2/12. The U.S. Court of Appeals (11thCir) issued an opinion [13 pages in PDF] in Collier v. Dickenson, an action against the Florida Department of Highway Safety & Motor Vehicles and some of its officials regarding the sale to marketers of personal information that is collected by the state in connection with its licensing of drivers and registration of motor vehicles.

The plaintiffs allege that the practice violates the federal Driver Privacy Protection Act (DPPA), which is codified at 18 U.S.C. § 2721-2725, as well as 42 U.S.C. § 1983, which imposes liability on anyone who, under color of state law, deprives any person of any rights, privileges, or immunities secured by the federal constitution or statutes. The plaintiffs assert violation of their their constitutional right to privacy, and their rights under the DPPA.

18 U.S.C. § 2721 provides, in part, that "A State department of motor vehicles, and any officer, employee, or contractor thereof, shall not knowingly disclose or otherwise make available to any person or entity ... personal information ... about any individual obtained by the department in connection with a motor vehicle record",  subject to certain enumerated exceptions.

The, 18 U.S.C. § 2724 provides, in part, that "A person who knowingly obtains, discloses or uses personal information, from a motor vehicle record, for a purpose not permitted under this chapter shall be liable to the individual to whom the information pertains, who may bring a civil action in a United States district court."

The District Court dismissed the complaint as to the officials on the grounds that they are entitled to qualified immunity from suit.

The Court of Appeals affirmed the dismissal as to the Section 1983 claim based upon alleged violation of the constitutional right to privacy, but reversed the dismissal of the Section 1983 based upon alleged violation of the DPPA, and reversed the dismissal of the direct claim of DPPA violation.

The Court of Appeals wrote that "the plain language of the DPPA clearly, unambiguously, and expressly creates a statutory right which may be enforced by enabling aggrieved individuals to sue persons who disclose their personal information in violation of the DPPA. Accordingly, if the acts alleged by Plaintiffs are taken to be true -- that Defendants sold personal information without their consent -- then Count II of the complaint states a cause of action under the DPPA."

The Court of Appeals also held that the DPPA is also enforceable under the DPPA.

This case is Mary Ann Collier, et al. v. Fred O. Dickenson III, et al., U.S. Court of Appeals for the 11th Circuit, App. Ct. No. 06-12614, an appeal from the U.S. District Court for the Southern District of Florida, D.C. No. 04-21351-CV-JEM. Judge Barkett wrote the opinion of the Court of Appeals, in which Judges Black and Kravitch joined.

People and Appointments

2/13. Rep. Charlie Norwood (R-GA) died. He was a member of the House Commerce Committee. See also, statement by President Bush.

2/13. Alan Holmer was named Special Envoy for China and the Strategic Economic Dialogue. He will lead the Bush administration's team managing the bilateral economic relationship with the People's Republic of China. From 1996 through 2005 he was head of the Pharmaceutical Research and Manufacturers of America (PhRMA). Former Rep. Billy Tauzin is now head of the PhRMA. Before that, Holmer was a partner in the law firm of Sidley Austin. And before that, during the Reagan administration, he worked at the Department of Commerce and at the Office of the U.S. Trade Representative as General Counsel and Deputy USTR. See, Treasury release and biography [PDF].

2/12. Joseph Ucuzoglu was named Senior Advisor in the Securities and Exchange Commission's SEC) Office of the Chief Accountant. Conrad Hewitt remains the SEC's Chief Accountant. See, SEC release.

More News

2/14. The U.S. Patent and Trademark Office (USPTO) published a notice in the Federal Register that announces and describes its proposal to amend 37 C.F.R. § 2.64 to require a request for reconsideration of an examining attorney's final refusal or requirement to be filed through the Trademark Electronic Application System (TEAS) within three months of the mailing date of the final action. See, Federal Register, February 14, 2007, Vol. 72, No. 30, at Pages 6984-6986. The deadline to submit comments to the USPTO is April 16, 2007.

2/13. The U.S. Court of Appeals (2ndCir) issued an opinion in Ross v. American Express, an antitrust case in which class action plaintiffs allege that Amex conspired with Visa and MasterCard to fix fees for transactions in foreign currencies. There is a separate action against Visa and MasterCard in which the District Court granted a motion to compel arbitration. Visa and MasterCard have agreements with cardholders that include arbitration clauses. Amex, which has no applicable arbitration agreement with the plaintiffs, moved the District Court for an order compelling arbitration, based upon the Visa and MasterCard agreements. The District Court found that the claims against Amex are inextricably intertwined with the Visa and MasterCard cardholder agreements, but refused to stay the District Court proceeding, or compel arbitration. Amex brought the present interlocutory appeal. The class action plaintiffs moved to dismiss the appeal. The just issued opinion merely explains the Court of Appeals' denial of this motion to dismiss. The Court of Appeals only addressed its jurisdiction. It added that "we make no determination as to whether the district court was correct in holding that appellants are entitled to arbitration via equitable estoppel -- a determination that will only be made following full briefing and argument on appeal." This case is Robert Ross, et al. v. American Express Company, et al., U.S. Court of Appeals for the 2nd Circuit, App. Ct. Nos. 06-4598-cv(L) and 06-4759-cv(XAP), appeals from the U.S. District Court for the Southern District of New York, D.C. No. 04 Civ. 5723.

2/12. Susan Schwab, the U.S. Trade Representative (USTR), gave a speech [10 pages in PDF] in which she advocated extension of trade promotion authority (TPA), which expires this summer. She said that the US "and its trading partners in the World Trade Organization continue to work toward a successful conclusion of the Doha Development Round", and that "TPA will be needed to enact the provisions of a Doha Round agreement. Failure to renew TPA would signal to the world that the United States has lost faith in Doha." She also said that trade agreements "strengthen intellectual property rights". President Bush gave a speech on January 31, 2007, in which he advocated extending TPA. See, story titled "Bush Calls for Reform of Sarbox 404 Implementation and Extension of TPA" in TLJ Daily E-Mail Alert No. 1,531, February 1, 2007.

2/9. Securities and Exchange Commission (SEC) Commissioner Kathleen Casey gave a speech in which she addressed Section 404 of the Sarbanes Oxley Act. She said that "We need to fix 404. No other issue in recent times has come to symbolize regulation gone awry", and that "While the spirit and letter of the law never contemplated the costly and burdensome result that this provision has generated, the law's implementation undoubtedly facilitated such a result." She continued that the SEC and the Public Company Accounting Oversight Board (PCAOB) "are now faced with attempting to undo the regulatory framework and consequent market behavior that has driven this costly compliance regime." Casey spoke at a Practising Law Institute event in Washington DC. SEC Commissioner Annette Nazareth discussed the SEC's Section 404 management guidance in her speech at the same event.

2/9. Securities and Exchange Commission (SEC) Chairman Chris Cox gave a speech at a Practising Law Institute event in Washington DC. As usual, he discussed the use of interactive data in SEC filings, and other information technology projects at the SEC. He said that "it's high time we tap the computing power of today's technology, and take advantage of the real-time speed of the Internet." He also discussed internet based account intrusion. He said that "is bank robbery in cyberspace, without the guns and the getaway car, but every bit as dangerous for the account holders. And because there are no exploding dye packs, the money doesn't even need to be laundered." He continued that the perpetrators "illegally hacked into the brokerage accounts of individual investors, and liquidated the investors' holdings. They then used the investors' money to buy large quantities of shares in small, thinly traded companies that the fraudsters already owned. The fraudsters then sold their own shares at the inflated prices they'd just managed to manipulate." He added that "This has become a major concern for brokerage houses nationwide, because thus far they have absorbed the losses that would otherwise be borne by their individual customers."

2/7. The Federal Trade Commission (FTC) released a report [92 pages in PDF] titled "Consumer Fraud and Identity Theft Complaint Data: January - December 2006". See also, FTC release summarizing this report. These annual FTC reports provide data on the number of consumer complaints in numerous categories. For example, the just released report provides data on identity fraud, internet related fraud, internet services, internet auctions, and telecommunications. The 2006 report also contains a large amount of state and local level data. However, while this report provides useful data regarding the numbers of different types of consumer complaints in 2006, these annual provides taken together are of limited value in identifying trends. There is no single data collection project. Rather, the FTC aggregates data from several FTC programs, as well as from other government agency and private sector data collection programs. Moreover, the missions and data collection procedures of some of these programs has changed over the years. Consequently, a category of consumer complaint that appears in one annual report may not be in the next annual report. Also, a review of the FTC's reports shows that even for a given category and year, the data may change from one report to the next. There is also the matter that some consumers may report the same fraud incident to multiple data collectors. As a result, these FTC's annual report have limited value in assessing trends in fraud against consumers, the effects of FTC anti-fraud activities, and the effects of federal legislation.

Washington Tech Calendar
New items are highlighted in red.
Thursday, February 15

The House will meet at 10:00 AM for legislative business. See, Hoyer's calendar [PDF].

The Senate will meet at 10:00 AM for morning business. It will then consider nominations.

9:00 AM. The House Homeland Security Committee (HHSC) will hold a hearing on the Department of Homeland Security's (DHS) goals for 2007. Deputy Secretary Michael Jackson will testify. Location: Room 311, Cannon Building.

POSTPONED. 10:00 AM. The House Commerce Committee's (HCC) Subcommittee on Telecommunications and the Internet will hold a hearing on the Federal Communications Commission (FCC). The witnesses will be the five FCC Commissioners. Press contact: Jodi Seth (Dingell) at 202-225-5735 or Larry Neal (Barton) at 202-225-3641. Location: Room 2123, Rayburn Building.

10:00 AM. The House Ways and Means Committee's (HWMC) Subcommittee on Trade will hold a hearing titled "Trade with China". See, notice. Location: Room 1100, Longworth Building.

10:00 AM - 12:00 NOON. The House Science Committee (HSC) Subcommittee on Technology and Innovation will hold a hearing titled "The National Institute of Standards and Technology's Role in Supporting Economic Competitiveness in the 21st Century". The witnesses will be William Jeffrey (Director of the National Institute of Standards and Technology), Stan Williams (Hewlett Packard), Peter Murray (Welch Allyn), and Michael Borrus (X/Seed Capital). Location: Room 2318, Rayburn Building.

10:00 AM. The Senate Judiciary Committee (SJC) will hold a business meeting. The agenda includes numerous bills, including S 236, the "Federal Agency Data Mining Reporting Act of 2007", and S 316, the "Preserve Access to Affordable Generics Act", a bill to prohibit brand name drug companies from compensating generic drug companies to delay the entry of a generic drug into the market. See, notice. The SJC does not take up all of the items on its published agenda. The SJC has held this bill over once. Press contract, Tracy Schmaler (Leahy) at 202-224-2154 or . Location: Room 226, Dirksen Building.

10:00 AM. The Senate Finance Committee (SFC) will hold a hearing titled "The Administration’s 2007 Trade Agenda". U.S. Trade Representative (USTR) Susan Schwab will testify. See, notice. Location: Room 215, Dirksen Building.

2:00 PM. The House Judiciary Committee's (HJC) Subcommittee on Courts, the Internet and Intellectual Property (SCIIP) will hold a hearing titled "Oversight Hearing on The Patent System -- American Innovation at Risk: The Case for Patent Reform". See, notice. Location: Room 2141, Rayburn Building.

5:00 PM. Deadline to submit applications to the National Institute of Standards and Technology (NIST) to participate in the summer 2007 Gaithersburg Summer Undergraduate Research Fellowship Program, or the Boulder Summer Undergraduate Research Fellowship Program. Both programs are soliciting applications in the areas of "Electronics and Electrical Engineering" and "Information Technology". See, notice in the Federal Register, December 22, 2006, Vol. 71, No. 246, at Pages 76982-76987.

Friday, February 16

The House will meet at 9:00 AM. See, Hoyer's calendar [PDF].

10:00 AM. The House Appropriations Committee's Subcommittee on Homeland Security will hold a hearing titled "Implementation of U.S. Visit Entry/Exit Program". The witness will be US VISIT Acting Director Mochny. Location: Room 2362A, Rayburn Building.

12:00 NOON - 2:00 PM. The Progress and Freedom Foundation (PFF) will host a panel discussion titled "Allocating the Electromagnetic Spectrum: A Discussion of the M2Z Proposal". The speakers will be Thomas Lenard (PFF), Robert Atkinson (Information Technology and Innovation Foundation), Chris McCabe (CTIA -- The Wireless Association), John Muleta (M2Z Networks), and Lawrence White (New York University). See, PFF release and registration page.. Lunch will be served. Press contact: Amy Smorodin at 202-289-8928 or asmorodin at pff dot org. Location: Room 2105, Rayburn Building, Capitol Hill.

Sunday, February 18

Day one of the National Association of Regulatory Utility Commissioners' (NARUC) winter committee meetings. Location: Renaissance Washington Hotel.

Monday, February 19

George Washington's Birthday.

The House will not meet on the week of February 19-23. See, House 2007 calendar.

The Senate will not meet on the week of February 19-23. See, Senate 2007 calendar.

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 National Press Club will be closed.

Day one of a four day convention titled "Satellite 2007". See, web site. Location: Washington Convention Center, 801 Mount Vernon Place, NW.

Day two of the National Association of Regulatory Utility Commissioners' (NARUC) winter committee meetings. Location: Renaissance Washington Hotel.

Tuesday, February 20

2:00 - 4:00 PM. The Department of State's (DOS) International Telecommunication Advisory Committee (ITAC) will meet to prepare advice on U.S. positions for the Organization of American States (OAS) Inter-American Telecommunications Commission's Permanent Consultative Committee I (Telecommunications). See, notice in the Federal Register, January 11, 2007, Vol. 72, Number 7, at Page 1363. Location: undisclosed.

Day two of a four day convention titled "Satellite 2007". See, web site. Location: Washington Convention Center, 801 Mount Vernon Place, NW.

Day three of the National Association of Regulatory Utility Commissioners' (NARUC) winter committee meetings. Location: Renaissance Washington Hotel.

EXTENDED TO MAY 23. Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) in its proceeding titled "In the Matter of Effects of Communications Towers on Migratory Birds". This NPRM [40 pages in PDF] is FCC 06-164 in WT Docket No. 03-187. The FCC adopted this NPRM on November 3, 2006. It released it on November 17, 2006. See, FCC's notice of extension [PDF] (DA 07-72), and notice in the Federal Register, January 26, 2007, Vol. 72, No. 17, at Pages 3776-3777.

Deadline to submit initial comments to the Federal Communications Commission's (FCC) International Bureau (IB) regarding a proposal to remove from the Section 214 Exclusion List those non-U.S. licensed satellites that have been allowed to enter the U.S. market for satellite services pursuant to the procedure adopted in the DISCO II order. See, FCC's Public Notice [4 pages in PDF] (DA 07-100). This proceeding is IB Docket No. 95-118.

Wednesday, February 21

10:00 AM. The Supreme Court will hear oral argument in Microsoft v. AT&T, Sup. Ct. No. 05-1056, a petition for writ of certiorari to the U.S. Court of Appeals (FedCir) in a patent infringement case. See, SCUS calendar.

11:30 AM -1:00 PM. The National Science Foundation's (NSF) National Science Board Commission on 21st Century Education in Science, Technology, Engineering, and Mathematics will meet. See, notice in the Federal Register, February 9, 2007, Vol. 72, No. 27, at Page 6297. Location: NSF, 4201 Wilson Blvd., Arlington,  VA.

12:15 PM. The Federal Communications Bar Association's (FCBA) Young Lawyers' Committeee will hold a brown bag lunch titled "The Role of In House Counsel". The speakers will be Robert Branson (Verizon Wireless), Stacy Fuller (DirecTV), Uzoma Onyeije (M2Z Networks), and Sumeet Seam (Discovery Communications). For more information, contact Chris Fedeli at chrisfedeli at dwt dot com, Natalie Roisman at nroisman at akingump dot com, or Tarah Grant at tsgrant at hhlaw dot com. Location: Hogan & Hartson, 555 13th St., NW.

POSTPONED. 6:00 - 8:15 PM. The Federal Communications Bar Association's (FCBA) Engineering and Technical Practice Committee will host a continuing legal education (CLE) seminar titled "Regulating for Innovation". See, registration form [PDF]. The deadline for registrations and cancellations is 5:00 PM on February 19. The prices to attend ranges from $50 to $125. Location: Skadden Arps, 1440 New York Ave., NW.

Day three of a four day convention titled "Satellite 2007". See, web site. Location: Washington Convention Center, 801 Mount Vernon Place, NW.

Day four of the National Association of Regulatory Utility Commissioners' (NARUC) winter committee meetings. Location: Renaissance Washington Hotel.

Thursday, February 22

9:30 AM - 5:00 PM. The Antitrust Modernization Commission (AMC) will meet. The AMC states that "Advanced registration is required." See, notice in the Federal Register, February 2, 2007, Vol. 72, No. 22, at Page 5000. Location: Morgan Lewis, main conference room, 1111 Pennsylvania Ave., NW.

12:15 PM. The Federal Communications Bar Association's (FCBA) Wireless Telecommunications Practice Committee will host a lunch. The deadline for registrations and cancellations is 12:00 NOON on February 20. The price to attend is $15. See, registration form [PDF]. Location: Latham & Watkins, 555 11th St., NW.

2:00 - 4:00 PM. The Department of State's (DOS) International Telecommunication Advisory Committee (ITAC) will meet to prepare advice on U.S. positions for the International Telecommunication Union's (ITU) Telecommunication Standardization Sector Study Group 3 (Tariff and accounting principles including related telecommunication economic and policy issues). See, notice in the Federal Register, January 11, 2007, Vol. 72, Number 7, at Page 1363. Location: undisclosed.

2:00 - 4:00 PM. The American Enterprise Institute (AEI) will hold a panel discussion titled "China's Economic Rise: Opportunity or Threat". The speakers will be Timothy Adams (Under Secretary for International Affairs, Department of the Treasury), Morris Goldstein (Institute for International Economics), Yusuke Horiguchi (Institute for International Finance), Anne Krueger, Stephen Roach (Morgan Stanley), and Desmond Lachman (AEI). See, notice. Location: AEI, 1150 17th St., NW.

2:00 - 6:00 PM. The Department of Commerce's (DOC) Measuring Innovation in the 21st Century Economy Advisory Committee will hold its first meeting. See, notice in the Federal Register, January 31, 2007, Vol. 72, No. 20, at Page 4482. Location: Vista Ballroom, Wyndham Washington Hotel, 1400 M St., NW.

Day four of a four day convention titled "Satellite 2007". See, web site. Location: Washington Convention Center, 801 Mount Vernon Place, NW.

Deadline to submit reply comments in response to the Federal Communications Commission's (FCC) Public Notice [4 pages in PDF] regarding how the FCC should interpret the phrase "remote communities effectively unserved by commercial mobile service", in Section 605(a) of the Warning, Alert, and Response Network (WARN) Act. The WARN Act was enacted in late 2006 a part of the port security bill. It establishes a process for commercial mobile service providers to voluntarily elect to transmit emergency alerts. Section 605(a) establishes a grant program for the installation of technologies in remote communities. This item is FCC 07-4 in PS Docket No. 07-8. See also stories titled "Bush Signs Port Security Bill" in TLJ Daily E-Mail Alert No. 1,469, October 16, 2006, and "House and Senate Approve Port Security Bill With Tech Provisions" in TLJ Daily E-Mail Alert No. 1,461, October 4, 2006.

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