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March 11, 2008, Alert No. 1,729.
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House May Consider FISA Bill

3/12. The House Rules Committee (HRC) reported HRes 1041, which "Provides for consideration of the Senate amendment to H.R. 3773", and a House amendment [2.5 MB PDF file] thereto. Rep. Steny Hoyer's (D-MD) schedule for the House for March 13, 2008, lists consideration of HR 3773, subject to this rule.

The House amendment would provide for prospective, but not retroactive, immunity for companies that provided assistance to the government.

The HRC summary of the House amendment states that it provides "prospective liability protection for telecommunications companies that provide lawful assistance to the government.  It addresses past activities under the President’s Terrorist Surveillance Program by freeing telephone companies to argue existing defenses before the court in pending lawsuits, notwithstanding the Government’s assertion of the state secrets doctrine".

The House amendment would also create a commission with subpoena power to investigate the government's use of FISA authority.

On March 12, 20 of the 23 Democrats, and none of the Republicans, on the House Judiciary Committee (HJC), signed a statement [6 pages in PDF] opposing granting retroactive immunity.

The wrote that "As a result of our review of classified as well as unclassified materials concerning the Administration's Terrorist Surveillance Program, we have concluded that blanket retroactive immunity for phone companies is not justified. However, we do recommend a course of action that would both permit the carriers the opportunity to defend themselves in court and also protect classified information -- by eliminating current legal barriers and authorizing relevant carriers to present fully in court their claims that they are immune from civil liability under current law, with appropriate protections to carefully safeguard classified information. In addition, we recommend legislation to fill a current gap in liability protection for carriers, and to create a bipartisan commission to thoroughly investigate the legality of the warrantless surveillance program."

Rep. John Boehner (R-OH), the House Republican leader, stated in a release on March 11 that "This latest FISA proposal from House Majority leaders is dead on arrival. It would outsource critical national security decisions to unelected judges and trial lawyers. It would hand over valuable national security oversight to a new commission charged with handling matters which already fall within the responsibilities of the existing House Intelligence Committee. And it would leave patriotic third parties exposed to unfettered and costly lawsuits at the hands of trial lawyers who are counting on their allies in Congress to block real FISA modernization."

He added that "trial lawyers are dictating national security policies to this Democratic Congress. ... And it’s time for rank-and-file Democrats to demand that their leaders to put our national security first and allow an up-or-down vote on the bipartisan Senate FISA bill. This latest proposal from House Majority leaders is a sham, and it is clearly unacceptable to the U.S. Senate, the President, and the American people."

The Senate passed a bill on February 12, 2008, that Bush supports, S 2248 [LOC | WW], the "Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2007". The House passed a much different bill on November 15, 2007, that Bush vehemently opposes, HR 3773 [LOC | WW], the "Responsible Electronic Surveillance That is Overseen, Reviewed, and Effective Act of 2007" or "RESTORE Act".

At the end of the week, the House commences a two week recess.

President Bush gave a speech on Wednesday evening, March 12, 2008. One of his topics was FISA reform legislation.

He said that "One of the things that we must do is to make sure that the hundreds of people that are out working for you every night to protect you have the tools they need. If the enemy, if the extremists who want to do America harm, if the radicals who want to kill again like they did before on our homeland are making phone calls into the United States of America, we need to know who they're calling, what they're saying and what they're planning."

He continued that "The Congress came together last year and passed the Protect America Act to give our professionals the tools they need. Unfortunately, that act expired. But the threat to the United States of America has not expired. Unfortunately, Democratic leaders in the House are continuing to block bipartisan legislation that would give our intelligence officials the tools they need to quickly and effectively monitor terrorist communications."

"And they are doing so despite the fact that legislation -- good legislation to give our professionals the tools passed the United States Senate by an overwhelming majority of 68 to 29. Instead of holding a vote on this bill that would pass the House of Representatives, House leaders have introduced a highly partisan and deeply flawed bill of their own. Their bill would put in place a cumbersome court approval process that would make it harder to collect intelligence on foreign terrorists and could reopen dangerous intelligence gaps that we experienced last year."

He also addressed immunity. "Their bill fails to provide liability protection to companies believed to have assisted in protecting our nation after the 9/11 attacks. Instead, the House bill would make matters worse by extending litigation for years to come. In fact, House leaders simply adopted the position that class-action trial lawyers are taking in billions of dollars of lawsuits they have filed."

"Companies that may have helped us save lives should be thanked for their patriotic service and should not be subjected to billion dollar lawsuits." He elaborated that "This bill would require the disclosure of state secrets during the litigation process. This could lead to the public release of highly classified information that our enemies could use against us."

House Democrats and Republicans have been issuing statements, and speaking in the House, on a regular basis. While most have focused on the legislative process, political posturing, and the debate over retroactive immunity, some have discussed the scope of surveillance going forward.

For example, On March 5, Rep. Mike Burgess (R-TX) stated that "we're talking about not surveillance on someone who's in Dallas calling someone who's in Washington. We're talking about surveillance on someone who is in perhaps one of those federally administered tribal areas in Pakistan or someone who's in Afghanistan communicating with someone in Iraq, because that method of communication may be putting up a Web site. There may be an embedded message on a Web site. But because that Web site may be carried on wires that go through the United States of America, then suddenly it becomes something that is under the jurisdiction, in some people's mind, of the Foreign Intelligence Surveillance Act."

He continued that "in order to find out who put the Web site up, you'd have to go through the FISA Court to get that information. But these Web sites tend to be rather ephemeral. They don't stay up that long. But it's problematic because you can't know who put up the Web site. You can't know who visited the Web site. And if you need to, you can't take it down without going through a 72-hour process in the FISA Court." See, Congressional Record, March 5, 2008, at Page H1339.

EC Approves Google DoubleClick Merger

3/11. The European Commission (EC) announced that it has approved the merger of Google and DoubleClick, two U.S. companies. The companies announced the merger in April of 2007.

The Federal Trade Commission (FTC) approved the merger last December. See, story titled "FTC Will Not Block Google DoubleClick Merger" in TLJ Daily E-Mail Alert No. 1,691, December 19, 2007.

The EC stated in a release that "the merged entity would not have the ability to engage in strategies aimed at marginalizing Google's competitors, mainly because of the presence of credible ad serving alternatives to which customers (publishers/advertisers/ad networks) can switch, in particular vertically integrated companies such as Microsoft, Yahoo! and AOL. The market investigation also found that the merged entity would not have the incentive to close off access for competitors in the ad serving market, mainly because such strategies would be unlikely to be profitable." (Parentheses in original.)

However, the EC noted that this decision "is based exclusively on its appraisal under the EU Merger Regulation. It is without prejudice to the merged entity's obligations under EU legislation in relation to the protection of individuals and the protection of privacy with regard to the processing of personal data and the EU Member States' implementing legislation."

Google announced in a March 11 release that "it has completed its acquisition of DoubleClick".

Google wrote in a second release that "Because we have been waiting for regulatory approval for our acquisition, we've been limited by law in the extent to which we could conduct detailed integration planning to map our way forward. That work will begin in earnest now."

Google added that "users will continue to benefit from our commitment to protecting user privacy following this acquisition".

House Approves 911 Resolution

3/10. The House approved HRes 537 by a vote of 381-0. See, Roll Call No. 108. This resolution "supports the designation of an appropriate month as ``National 9-1-1 Education Month´´ and the goals of such designation".

This resolution does not recite these "goals". However, the resolutions' findings, and the floor statements of some of the supporters of this resolution, suggest expanding the range of technologies covered by the Federal Communications Commission's (FCC) 911 and E911 regulatory regime.

For example, the resolution does contain the following finding: "Whereas a growing segment of the population ... are increasingly communicating with nontraditional text, video, and instant messaging communications services, and anticipate that these services will be able to connect directly to 9-1-1".

It also contains this: "Whereas the growth and variety of means of communication, including mobile and Internet Protocol-based systems, impose challenges for accessing 9-1-1 and implementing enhanced 9-1-1".

Rep. Lynn Westmoreland (R-GA) stated in the House that "We must also continue to modernize this vital tool. There is a growing population of citizens, otherwise unable to communicate clearly, who are learning to communicate through new technologies such as text, video, and instant messaging. We should strive to connect the use of emerging technologies to the 9-1-1 system." See, Congressional Record, March 10, 2007, at Page H1422.

FCC Files Opposition to Stay in Challenge to Its Latest Wireless E911 Location Tracking Mandates

3/10. The Federal Communications Commission (FCC) filed its opposition [24 pages in PDF] to wireless carriers' emergency motion for stay [27 pages in PDF] of the FCC's wireless E911 location accuracy requirements.

Last September the FCC issued another in a series of orders related to mandating and increasing the accuracy of location tracking of wireless devices, including VOIP.

The FCC adopted its order on September 11, 2007, and released the text on November 20, 2007. See, story titled "FCC Adopts E911 Location Tracking Accuracy Benchmarks" in TLJ Daily E-Mail Alert No. 1,640, September 17, 2007. This order is FCC 07-166 in PS Docket No. 07-114, CC Docket No. 94-102, and WC Docket No. 05-196.

AT&T, Verizon Wireless, T-Mobile, Sprint-Nextel, and the Rural Cellular Association (RCA) filed petitions for review, and motion for stay, pending resolution of the underlying petitions. These petitions argue that the order is procedurally flawed because the FCC failed to comply with the Administrative Procedure Act and imposed requirements that have no support in the FCC's record. They further argue that they are unable to comply with the order, and hence would be irreparably harmed by it.

FCC Commissioner Robert McDowell wrote in a statement [PDF] associated with the September order that it "is fraught with highly dubious legal and policy maneuvering that bypasses a still developing record on what should be the reasonable and appropriate implementation details".

This case is Rural Cellular Association and T-Mobile USA v. FCC and USA, and consolidated cases, U.S. Court of Appeals for the District of Columbia, App. Ct. Nos. 08-1069, 08-1070, and 08-1076. See, February 20, 2008, petition for review [PDF] of the RCA and T-Mobile, to which is attached the FCC's order.

See also, story titled "FCC Extends E911 Location Tracking Rules to Interconnected VOIP" in TLJ Daily E-Mail Alert No. 1,589, May 31, 2007.

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FCC Announces Agenda for March 19 Meeting

3/12. The Federal Communications Commission (FCC) released a tentative agenda [4 pages in PDF] for its event scheduled for March 19, 2008, titled "Open Commission Meeting". This agenda includes six items, including a Report and Order regarding "exclusive contracts" affecting apartment buildings.

1. The FCC's agenda states that the FCC is scheduled to adopt a Report and Order (R&O) regarding "exclusive contracts for the provision of telecommunications services in multiple tenant environments (MTEs)".

This agenda also states that the title of this proceeding is "Promotion of Competitive Networks in Local Telecommunications Markets". The agenda does not provide a proceeding number, but states that this is a Wireline Competition Bureau (WCB) item.

On October 31, 2007, the FCC adopted a Media Bureau (MB) R&O that is based upon Section 628 of the Communications Act, and directed at cable operators, but not other multichannel video programming distributors (MVPDs). It asserts regulatory authority over the content of contracts negotiated by owners of multiple dwelling units (MDUs), such as apartment buildings, and cable companies.

Subsection 628(b) of the Communications Act is codified at 47 U.S.C. § 548(b).

However, that item also included a Further Notice of the Proposed Rulemaking (FNPRM) that asked "Does the Commission have the authority to regulate the use of exclusivity clauses by MVPD providers not subject to Section 628." This FNPRM also addresses bulk billing and exclusive marketing arrangements. March 7, 2008, was the deadline to submit reply comments.

That R&O and FNPRM is FCC 07-189 in MB Docket No. 07-51. See also, stories titled "FCC Adopts R&O Abrogating Contracts Between MDU Owners and Cable Companies" and "Commentary on FCC's R&O Regarding MDU Owners and Cable Companies" in TLJ Daily E-Mail Alert No. 1,669, November 5, 2007.

See also, pending legal challenges to the October 31, 2007, R&O: NCTA v. FCC and National Multi-Housing Counsel, et al. v. FCC, U.S. Court of Appeals for the District of Columbia, App. Ct. Nos. 08-1016 and 08-1017.

2. The FCC's agenda states that it is scheduled to approve a Fifth Report regarding the "availability of advanced telecommunications capability to all Americans", which reports are required by Section 706 of the Telecommunications Act of 1996.

3. The FCC is scheduled to adopt an R&O and FNPRM regarding collection of broadband subscription and availability data. This proceeding is WC Docket No. 07-38.

4. The FCC is scheduled to adopt a Third Order on Reconsideration and Sixth Memorandum Opinion and Order (MO&O) regarding spectrum sharing among incumbent and future services in the 2495-2500 MHz band, and a Fourth MO&O, Declaratory Ruling (DR), and Second FNPRM regarding changes to the service rules applicable to the Broadband Radio Service (BRS) and the Educational Broadband Service (EBS).

These items relate to the following proceedings: WT Docket No. 03-66, RM-10586, WT Docket No. 03-67, MM Docket No. 97-217, WT Docket No. 02-68, RM-9718, WT Docket No. 00-230, IB Docket No. 02-364, and ET Docket No. 00-258.

5. The FCC is scheduled to adopt a Third R&O regarding changes to the radiated power rules applicable to certain wireless services. This proceeding is WT Docket No. 03-264.

6. Finally, the FCC's notice states that the FCC "will consider issues regarding carriage of digital broadcast television signals by satellite carriers" in CS Docket No. 00-96.

This event is scheduled for 9:30 AM on Wednesday, March 19, 2008, in the FCC's Commission Meeting Room, Room TW-C305, 445 12th Street, SW. The FCC's recent events titled "Open Commission Meeting" have rarely been held at the time announced by the FCC. The FCC does not always take up all of the items on its published program. The FCC sometimes adds items to the program without providing the "one week" notice required 5 U.S.C. § 552b. The FCC usually does not release at its events copies of the items that it adopts at its events.

Washington Tech Calendar
New items are highlighted in red.
Thursday, March 13

The House will meet at 10:30 AM for legislative business. It may consider HConRes 312, the resolution on the budget for FY 2009, and HR 3773, the "FISA Amendments Act of 2008". See, Rep. Hoyer's calendar for week of March 10, and schedule for Thursday.

8:30 AM - 4:30 PM. The Department of Transportation's (DOT) Intelligent Transportation Systems Program Advisory Committee will hold a meeting. See, notice in the Federal Register, February 12, 2008, Vol. 73, No. 29, at Page 8102. Location: Oklahoma Conference Room, West Building, DOT, 1200 New Jersey Ave., SE.

9:30 AM. The House Commerce Committee (HCC) will hold a hearing titled "Department of Commerce Budget for Fiscal Year 2009". The hearing will be webcast by the HCC. Location: Room 2123, Rayburn Building.

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in Star Wireless v. FCC, App. Ct. No. 07-1190. Judges Henderson, Rogers and Brown will preside. Location: Location: 333 Constitution Ave., NW.

10:00 AM. The House Judiciary Committee's (HJC) Subcommittee on Courts, the Internet and Intellectual Property (SCIIP) will hold a hearing titled "Promoting the Use of Orphan Works: Balancing the Interests of Copyright Owners and Users". See, notice. Location: Room 2141, Rayburn Building.

10:00 AM. The House Appropriations Committee's (HAC) Subcommittee on Financial Services will hold a hearing titled "Supreme Court of the United States". Location: Room 2220, Rayburn Building.

POSTPONED. 10:00 AM. The Senate Judiciary Committee (SJC) may hold an executive business meeting. The agenda includes consideration of several bills, including S 2533 [LOC | WW], the "State Secrets Protection Act". The agenda also includes consideration of Catharina Haynes (to be a Judge of the U.S. Court of Appeals for the 5th Circuit) and Rebecca Ann Gregory (U.S.D.C., E.D. Texas). The SJC rarely follows its published agendas. See, notice. Location: Room 226, Dirksen Building.

12:00 NOON - 2:00 PM. The Federal Communications Bar Association's (FCBA) Diversity and Mass Media Committees will host a brown bag lunch titled "Modification of the newspaper/broadcast cross-ownership rule". The speakers will be Anne Swanson (Dow Lohnes), John Sturm (Newspaper Association of America), Frank Montero (National Association of Minority Media Executives), Angela Campbell (Institute of Public Representation), Jane Mago (National Association of Broadcasters), and Joe Torres (Free Press). For more information, contact Parul Desai at pdesai at mediaaccess dot org. Location: Georgetown University Law Center, Hotung International Building, Room 2000, 600 New Jersey Ave., NW.

2:00 PM. The Senate Commerce Committee (SCC) will hold a hearing on the nomination of John Sullivan to be General Counsel of the Department of Commerce (DOC). See, notice. Location: Room 253, Russell Building.

Day three of a three day conference hosted by the National Institute of Standards and Technology's (NIST) Federal Information Systems Security Educators' Association (FISSEA) titled "FISSEA Annual Conference". See, notice. The basic price to attend is $205. Registrations are due by February 25, 2008. Location: NIST, Red Auditorium, 100 Bureau Drive, Gaithersburg, MD.

Friday, March 14

The House will meet at 10:00 AM for legislative business. See, Rep. Hoyer's calendar for week of March 10.

Extended deadline to submit initial comments to the Federal Communications Commission (FCC) regarding the Petition for Declaratory Ruling [33 pages in PDF] filed by the Public Knowledge (PK) and other groups on December 11, 2007, pertaining to the regulatory status of text messaging services, including short code based services sent from and received by mobile phones. The PK requests that the FCC declare that these services are governed by the anti-discrimination provisions of Title II of the Communications Act. See, story titled "Verizon Wireless and Net Neutrality Advocates Clash Over Text Messaging" in TLJ Daily E-Mail Alert No. 1,647, September 27, 2007. See also, letter from Verizon Wireless to NARAL dated September 27, 2007, and NARAL's web page titled "NARAL Pro-Choice America Wins Fight over Corporate Censorship". See also, story titled "Public Knowledge Asks FCC to Declare that Blocking and Refusing to Carry Text Messages Violates Title II" in TLJ Daily E-Mail Alert No. 1,686, December 11, 2007. This proceeding is WT Docket No. 08-7. See, notice in the Federal Register, January 28, 2008, Vol. 73, No. 18, at Pages 4866-4867. See also, notice [PDF] of extension, DA 08-282.

EXTENDED TO APRIL 14. Deadline to submit reply comments to the Federal Communications Commission (FCC) regarding the Petition for Declaratory Ruling [33 pages in PDF] filed by the Public Knowledge (PK) and other groups on December 11, 2007, pertaining to the regulatory status of text messaging services, including short code based services sent from and received by mobile phones. See, notice [PDF] of extension, DA 08-282.

Deadline for recent law school graduates, graduating law students, and judicial clerks to submit to the Federal Communications Commission (FCC) applications for participation in the FCC's 2008 Attorney Honors Program. See, FCC notice [PDF].

EXTENDED TO APRIL 28. Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Report on Broadcast Localism and Notice of Proposed Rulemaking. The FCC adopted this item on December 18, 2007, and released the text on January 24, 2008. It is FCC 07-218 in MB Docket No. 04-233. See, notice in the Federal Register, February 13, 2008, Vol. 73, No. 30, at Pages 8255-8259. See also, FCC's Public Notice [PDF] (DA 08-393). See also, Public Notice [PDF] (DA 08-515) extending deadlines.

Monday, March 17

St. Patrick's Day.

The House will begin is two week March recess. See, Rep. Hoyer's 2008 calendar [4.25 MB PDF].

The Senate will begin its March recess. See, Senate 2008 calendar.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its two notice of proposed rulemakings (NPRMs) regarding service rules for the Wireless Communications Service (WCS) and for terrestrial repeaters used in conjunction with the Satellite Digital Audio Radio Service (SDARS). These items are FCC 07-215 in WT Docket No. 07-293 and IB Docket No. 95-91. The FCC adopted these items on December 17, 2007, and released them on December 18, 2007. See, notice in the Federal Register, January 15, 2008, Vol. 73, No. 10, at Pages 2437-2440.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Third Further Notice of Proposed Rulemaking regarding cable carriage of digital television broadcast signals. The FCC adopted this item on September 11, 2007, and released the text [68 pages in PDF] on November 30, 2007. This item is FCC 07-120 in CS Docket No. 98-120. See, notice in the Federal Register, February 1, 2008, Vol. 73, No. 22, at Pages 6099-6101, and story titled "FCC Adopts R&O and Further NPRM Regarding Cable Carriage of Digital Broadcast TV Signals" in TLJ Daily E-Mail Alert No. 1,640, September 17, 2007.

Deadline to submit comments or original research to the Federal Trade Commission (FTC) related to its workshop titled "Beyond Voice: Mapping the Mobile Marketplace" to be held on May 6-7, 2008. See, notice.

Tuesday, March 18

The House will not meet.

The Senate will not meet.

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in Sprint Nextel v. FCC, App. Ct. No. 07-1416. Judges Ginsburg, Sentelle and Brown will preside. This is a petition for review of the Federal Communications Commission's (FCC) Third Memorandum Opinion and Order in its proceeding titled "Improving Public Safety Communications in the 800 MHz Band". See, FCC's brief [PDF]. Location: Location: 333 Constitution Ave., NW.

12:15 PM. The Federal Communications Bar Association's (FCBA) Wireless Practice Committee will host a lunch titled "Reflections on Spectrum Policy: The Licensed vs. Unlicensed Debates". The speakers will be David Donovan (Association for Maximum Service Television), Paul Kolodzy, Jonathan Nuechterlein (Wilmer Hale), and Ben Scott (Free Press). Location: Sidley Austin, 1501 K St., NW.

12:15 - 1:30 PM. The Federal Communications Bar Association's (FCBA) Intellectual Property Practice Committee will host a brown bag lunch titled "Intellectual Property Issues on Capitol Hill". The speakers will be Ryan Triplette (office of Sen. Arlen Specter (R-PA)), Jennifer Schneider (office of Rep. Rick Boucher (D-VA)), and Aaron Cooper (Senate Judiciary Committee staff). Location: Dow Lohnes, 1200 New Hampshire Ave., NW.

1:00 - 4:00 PM. The Architectural and Transportation Barriers Compliance Board's (ATBCB) Telecommunications and Electronic and Information Technology Advisory Committee (TEITAC) will meet by conference call. See, notice in the Federal Register, January 24, 2008, Vol. 73, No. 16, at Page 4132.

2:00 - 4:00 PM. The Department of State's (DOS) International Telecommunication Advisory Committee (ITAC) will hold one of a series of meetings to discuss the U.S. positions for the March and April 2008 meeting of the ITU-T Study Group 3 and related issues of the international telecommunication regulations. See, notice in the Federal Register, February 4, 2008, Vol. 73, No. 23, at Page 6547. Location?

TIME? The National Institute of Standards and Technology (NIST) will host a closed conference titled "FIPS 140-3: Software Security Workshop". See, notice. Location: NIST, Lecture Room B, 100 Bureau Drive, Building 101, Gaithersburg, MD.

Wednesday, March 19

The House will not meet.

The Senate will not meet.

Thursday, March 20

The House will not meet.

The Senate will not meet.