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June 19, 2008, Alert No. 1,783.
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House Approves FISA Reform Bill

6/20. The House approved HR 6304 [114 pages in PDF], the "Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2008", by a vote of 293-129. See, Roll Call No. 437.

This is the just announced bill to reform the Foreign Intelligence Surveillance Act (FISA). See, story titled "House and Senate Leaders Release Draft FISA Reform Bill" in TLJ Daily E-Mail Alert No. 1,782, June 18, 2008.

On June 19 the House Rules Committee (HRC) adopted HRes 1285, a rule for consideration of HR 6304. The HRC adopted a closed rule: no amendments in order.

The bill has bipartisan and bicameral support, as well as support from the Bush administration.

Sen. Arlen Specter (R-PA), the ranking Republican on the Senate Judiciary Committee (SJC), announced his opposition to this bill on June 20. He wrote in a release that "I am opposed to the proposed legislation because it does not require a judicial determination that what the telephone companies have done in the past is constitutional.  It is totally insufficient to grant immunity for the telephone companies’ prior conduct based merely on the written assurance from the administration that the spying was legal."

Sen. Specter also wrote that "The provision that the bill will be the exclusive means for the government to wiretap is meaningless because that specific limitation is now in the 1978 Act and it didn’t stop the government from the warrantless terrorist surveillance program and what the telephone companies have done. That statutory limitation leaves the president with his position that his Article II powers as commander in chief cannot be limited by statute, which is a sound constitutional doctrine unless the courts decide otherwise. Only the courts can decide that issue and this proposal dodges it."

Sen. Patrick Leahy (D-VT), the Chairman of the SJC, has also announced his opposition on June 19.

Attorney General and DNI Praise FISA Reform Bill

6/19. Attorney General Michael Mukasey and Director of National Intelligence Michael McConnell sent a letter on June 19, 2008, to House Speaker Nancy Pelosi stating the views of the Bush administration on HR 6304 [114 pages in PDF], the "Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2008".

They wrote that this bill "would modernize FISA to reflect changes in communications technology since the Act was first passed 30 years ago. The amendments would provide the Intelligence Community with the tools it needs to collect the foreign intelligence necessary to secure our Nation while protecting civil liberties of Americans."

The continued that it "would also provide the necessary legal protection for those companies sued because they are believed to have helped the Government prevent terrorist attacks in the aftermath of September 11."

Hence, they conclude that "we strongly support passage of this bill and will recommend that the President sign it."

They elaborated that the bill contains "vital protections for electronic communications service providers who assist the Intelligence Community's efforts to protect the Nation from terrorism and other foreign intelligence threats."

They also wrote that the bill "would provide liability protection related to future assistance while ensuring the protection of sources and methods. Importantly, the bill would also provide the necessary legal protection for those companies who are sued only because they are believed to have helped the Government with communications intelligence activities in the aftermath of September 11, 2001."

Mukasey and McConnell also note that the bill "states that the authorities in the bill sunset at the end of 2012", even though they oppose such language.

USTR Elaborates on BIT Negotiations with PRC

6/19. The Office of the U.S. Trade Representative (OUSTR) issued another release [PDF] regarding the negotiations between the US and People's Republic of China (PRC) for a bilateral investment treaty (BIT). The US and PRC announced the commencement of these negotiations on June 18, 2008.

This release states that this BIT would provide US companies "non-discriminatory treatment", "fair and equitable treatment", and "transparent regulation". The release also asserts that PRC investors "already enjoy these protections under U.S. law."

This release also states that "All U.S. BITs include an ``essential security´´ exception that allows the United States to take any action that is necessary to protect the national security, including action by the Committee on Foreign Investment in the United States (CFIUS) to condition or block a Chinese acquisition of control over a U.S. company."

The US CFIUS process is one means by which the US denies foreign investors non-discriminatory treatment.

XM and Sirius Propose Merger Conditions

6/16. Legal counsel for XM and Sirius sent a letter [PDF] dated June 16, 2008, to the Federal Communications Commission (FCC) listing "voluntary commitments" that the two companies propose to follow if the FCC approves the merger. These include a la carte programming options, best of both programming, discounted family friendly programming, and options to select either mostly music, mostly news, mostly sports or mostly talk programming.

This letter also addresses the setting aside of channels for public interest and qualified entity channels, allowing device manufacturers to incorporate in satellite radio receivers any other technology that would not result in harmful interference with the merged company's network, interoperable receivers, rates, and service in Puerto Rico.

FCC Chairman Kevin Martin expressed support for approval of the merger on June 16.

The National Association of Broadcaster's (NAB) Dennis Wharton stated in a release on June 16 that "Given their systematic breaking of virtually every rule set forth by the FCC in their 11 years of existence, it would be curious if the Commission now rewards XM and Sirius with a monopoly".

Gigi Sohn, head of the Public Knowledge, stated in a release on June 16, 2008, that "many of the conditions the Federal Communications Commission (FCC) is considering placing on a potential merger of XM Satellite Radio and Sirius Satellite Radio are conditions that we have proposed and supported for more than a year, both in Congressional testimony, as well as in meetings with the Commission."

She continued that the FCC "is considering placing a price cap on programming of perhaps three years, as well as that the new combined company; offer a la carte programming choices; open the standards for satellite radio receivers so that any device manufacturer can make satellite radios; set aside 4 percent of their spectrum capacity (what now amounts to 12 channels) for non-commercial educational programming; lease another 4 percent to groups like minorities and women who are underrepresented in broadcasting; and manufacture interoperable radios that allow a subscriber to receive programming from both providers."

XM and Sirius announced their merger plans in February of 2007. See, story titled "XM and Sirius Announce Plans to Merge" in TLJ Daily E-Mail Alert No. 1,540, February 20, 2007.

The Department of Justice's (DOJ) Antitrust Division, which has statutory authority to conduct antitrust merger reviews, announced in March of 2008 that it will not challenge the merger of XM and Sirius. See, story titled "DOJ Won't Challenge XM Sirius Merger" in TLJ Daily E-Mail Alert No. 1,736, March 25, 2008.

This FCC's merger review proceeding is Docket No. 07-57.

People and Appointments

6/19. President Bush nominated Gregory Garre to be Solicitor General at the Department of Justice. If confirmed by the Senate, he would replace Paul Clement, who has resigned. President Bush previously announced his intent to nominate Garre. See, White House release.

6/19. President Bush nominated Michael O'Neill to be a Judge of the U.S. District Court for the District of Columbia. See, White House release. O'Neill is a professor at George Mason University's law school. He was Chief Counsel to the Senate Judiciary Committee (SJC) from 2005 through early 2007.

6/19. President Bush nominated Jeffrey Adam Rosen to be a Judge of the U.S. District Court for the District of Columbia. See, White House release. Rosen is currently General Counsel at the Office of Management & Budget (OMB). He was previously General Counsel of the Department of Transportation. Before that he was a partner in the law firm of Kirkland & Ellis. This Jeffrey Rosen is not to be confused with the Jeffrey Rosen who is a professor at George Washington University's law school, a frequent speaker on privacy law, and author of The Naked Crowd: Reclaiming Security and Freedom in an Anxious Age [Amazon] and The Unwanted Gaze: The Destruction of Privacy in America [Amazon].

6/19. President Bush nominated Patrick Rowan to be Assistant Attorney General in charge of the Department of Justice's (DOJ) National Security Division (NSD). He is currently the NSD's Principal Deputy Assistant Attorney General. See, White House release and release. If confirmed by the Senate, he would replace Kenneth Wainstein, who is now Assistant to the President for Homeland Security and Counterterrorism. See, story titled "Bush Names Wainstein Top Homeland Security and Counterterrorism Advisor" in TLJ Daily E-Mail Alert No. 1,734, March 20, 2008.

More News

6/19. The U.S. Court of Appeals (9thCir) issued its opinion [36 pages in PDF] in Richlin v. MGM, a copyright dispute over rights in a movie. The Court of Appeals affirmed the judgment of the District Court, which held that MGM owns the copyright for the Pink Panther. The plaintiffs in this case are heirs of Maurice Richlin, who back in 1962 coauthored a story treatment, or outline of a movie plot, for what became the 1963 movie titled "The Pink Panther". Richlin assigned his copyright and the right to renew that copyright. Nevertheless, his heirs filed a complaint in U.S. District Court (CDCal) against MGM Pictures asserting federal statutory renewal rights in the treatment and derivative works, including the movie. The District Court granted summary judgment to MGM. The Court of Appeals affirmed in an opinion that contains a discussion of underlying works, derivative works, publication, registration, statutory copyright, terms of copyright, renewal of copyright, authorship, and coauthorship. This case is Bradley Richlin, et al. v. Metro Goldwyn Meyer Pictures, Inc., et al., U.S. Court of Appeals for the 9th Circuit, App. Ct. No. 06-55307, an appeal from the U.S. District Court for Central District of California, D.C. No. CV-04-09162-DDP, Judge Dean Pregerson presiding. Judge Wardlaw wrote the opinion of the Court of Appeals, in which Judges Ferdinand and Collins, sitting by designation, joined.

6/19.The Federal Trade Commission (FTC) announced that the FTC and the California Office of Privacy Protection will host a half day public workshop in Los Angeles, California, on August 13, 2008, titled "Protecting Personal Information: Best Practices for Business". See, FTC release and notice.

6/18. William Kovacic, Chairman of the Federal Trade Commission (FTC), gave a speech [6 pages in PDF] in Monterey, California, titled "The Federal Trade Commission at 100: Into Our Second Century".

6/17. The Progress & Freedom Foundation (PFF) released a preliminary agenda for its conference titled "Aspen Summit", to be held on August 17-19, 2008, in Aspen, Colorado. This agenda includes the following panels and discussions:

  • Should We Deputize the Middleman? New Debates about Intermediary Liability
  • Copyright Enforcement Online: Can We Do Better?
  • Online Advertising, Behavioral Marketing & Privacy
  • The Innovation Imperative: Engage or Retreat?
  • Next Generation Network Policy -- Here and Abroad
  • Kids, Media & Marketing: Child Safety and Privacy in a Web 2.0 World
  • China: A Challenge of Olympic Proportions
  • Patent Reform: Where We Are, and Where We Might Go
  • Spectrum Policy: White Spaces and Beyond
Washington Tech Calendar
New items are highlighted in red.
Friday, June 20

The House will meet at 9:00 AM. Rep. Hoyer's schedule for June 20 states that the House will consider  HR 6304 [114 pages in PDF], the "Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2008".

The Senate will meet at 9:30 AM. It will resume consideration of the House message to accompany HR 3221 [LOC | WW], the "American Housing Rescue and Foreclosure Prevention Act of 2008".

10:00 AM. The Senate Homeland Security and Governmental Affairs Committee will hold a hearing on the nomination of Elaine Duke to be Under Secretary for Management at the Department of Homeland Security (DHS). See, notice. Location: Room 342, Dirksen Building.

12:00 NOON - 1:30 PM. The Federal Communications Bar Association (FCBA) will host a lunch. The speaker will be Rep. Ed Markey (D-MA), Chairman of the House Commerce Committee's (HCC) Subcommittee on Telecommunications and the Internet. See, notice and registration page. The price to attend is $70.00. Location: Mayflower Hotel, 1127 Connecticut Ave., NW.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Second Further Notice of Proposed Rulemaking (2ndFNPRM) regarding reauctioning the D block of the 700 MHz auction (Auction No. 73). The FCC adopted this item on May 14, 2008. See, story titled "FCC Announces NPRM for D Block Auction" in TLJ Daily E-Mail Alert No. 1,766, May 14, 2008. The FCC later released the text [101 pages in PDF]. It is FCC 08-128 in WT Docket No. 06-150 and PS Docket No. 06-229. See, notice in the Federal Register, May 21, 2008, Vol. 73, No. 99, at Pages 29581-29623.

Saturday, June 21

Deadline to submit replies to oppositions to the Federal Communications Commission (FCC) regarding a petition for reconsideration [42 pages in PDF] in the FCC's universal service and access charge reform proceedings (CC Docket No. 96-45, CC Docket No. 96-262, and WC Docket No. 06-122). See, notice in the Federal Register, May 27, 2008, Vol. 73, No. 102, at Page 30393.

Monday, June 23

12:15 - 1:45 PM. The New America Foundation (NAF) will host a panel discussion titled "Developing a National Broadband Strategy to Keep the U.S. Prosperous in the 21st Century". The speakers will be FCC Commissioner Michael Copps, FCC Commissioner Jonathan Adelstein, Jane Patterson (e-NC Authority), Jim Baller (Baller Herbst Law Group), Diana Oblinger (Educause), Stan Fendley (Fiber to the Home Council), Michael Calabrese (NAF). Lunch will be served. See, notice and registration page. Location: Room 902, Hart Building, Capitol Hill.

Tuesday, June 24

9:30 AM. The House Commerce Committee's (HCC) Subcommittee on Telecommunications and the Internet will hold a hearing titled "The Future of Universal Service: To Whom, By Whom, For What, and How Much?" This hearing will be webcast by the HCC. Location: Room 2123, Rayburn Building.

10:00 AM. The Senate Finance Committee (SFC) will hold a hearing titled "Oversight of Trade Functions: Customs and Other Trade Agencies". See, notice. Location: Room 215, Dirksen Building.

11:30 AM. The House Judiciary Committee's (HJC) Subcommittee on Crime will hold a hearing titled "Online Pharmacies and the Problem of Internet Drug Abuse". See, notice. This hearing will be webcast by the HJC. Location: Room 2141, Rayburn Building.

1:00 PM. The House Judiciary Committee's (HJC) Subcommittee on Administrative Law will hold a hearing on HR 5267 [ LOC | WW], the "Business Activity Tax Simplification Act of 2008". See, notice and story titled "Boucher and Goodlatte Again Introduce BAT Bill" in TLJ Daily E-Mail Alert No. 1,715, February 11, 2008. Location: Room 2237, Rayburn Building.

1:00 - 4:00 PM. The House Science Committee's (HSC) Subcommittee on Investigations and Oversight will hold a hearing titled "American Decline or Renewal? Part 2 -- The Past and Future of Skilled Work". The witnesses will be John Russo (Youngstown State University), Frank Morgan (White & Case), Howard Rosen (Peterson Institute for International Economics), Jeanie Moore (Rowan-Cabarrus Community College), and Thomas Palley (Economics for Democratic & Open Societies Project). The HSC will webcast this hearing. Location: Room 2318, Rayburn Building.

TIME? The U.S. District Court (DC) will hold a status hearing in U.S. v. Microsoft. See, June 17, 2008, pleading [17 pages in PDF] titled "Joint Status Report on Microsoft's Compliance with the Final Judgments". This case is D.C. No. 98-1232 (CKK) and D.C. No. 98-1233, consolidated.

Wednesday, June 25

9:30 AM. The Senate Judiciary Committee's (SJC) Subcommittee on the Constitution will hold a hearing titled "Laptop Searches and Other Violations of Privacy Faced by Americans Returning from Overseas Travel". Sen. Russ Feingold (D-WI) will preside. Location: Room 226, Dirksen Building.

Thursday, June 26

10:00 AM. The Senate Judiciary Committee (SJC) may hold an executive business meeting. The agenda includes consideration of four judicial nominees: Paul Gardephe (to be a Judge of the U.S. District Court for the Southern District of New York), Kiyo Matsumoto (E.D.N.Y.), Cathy Seibel (S.D.N.Y.), and Glenn Suddaby (N.D.N.Y.). The SJC rarely follows its published agenda. Location: Room 226, Dirksen Building.

11:00 AM - 12:30 PM. The Heritage Foundation will host a panel discussion titled "Homeland Security, Privacy and Civil Liberties: A Five Year Review". The speakers will be Michael Chertoff (Secretary of Homeland Security), Daniel Sutherland (Officer for Civil Rights and Civil Liberties, DHS), Hugo Teufel (Chief Privacy Officer, DHS), Peter Swire (Ohio State University law school), Kevin Lanigan (Human Rights First), and James Carifano (Heritage). See, notice. Location: Heritage, 214 Massachusetts Ave., NE.

12:00 NOON. The Cato Institute will host a panel discussion titled "Trade Facilitation: The New Wave of International Trade Liberalization?". The speakers will be Steven Creskoff (Creskoff & Doram), Michael Finger, Bill Lane (Caterpillar, Inc.), John Wilson (World Bank), and Dan Ikenson (Cato). Cato will webcast this event. Lunch will be served after the program. See, notice and registration page. Location: Cato, 1000 Massachusetts Ave., NW.

4:00 - 5:45 PM. The American Enterprise Institute (AEI) will host a discussion of the book [Amazon] titled "Termites in the Trading System: How Preferential Agreements Undermine Free Trade", by Jagdish Bhagwati. The speakers will be Bhagwati, Brian Hindley (European Centre for International Political Economy), Philip Levy (AEI), and Claude Barfield (AEI). See, notice. Location: AEI, 12th floor, 1150 17th St., NW.

Friday, June 27

9:00 AM - 4:00 PM. The Federal Communications Commission's (FCC) Consumer Advisory Committee will meet. See, notice [PDF]. Location: FCC, Commission Meeting Room, 445 12th St., SW.

Deadline to submit comments to the U.S. Patent and Trademark Office (USPTO) regarding its proposal to amend the Rules of Practice in Trademark Cases to require a fee of $50 for filing a request for reconsideration on paper of an examining attorney's final refusal, whereas no fee would be required for a request for reconsideration filed through the Trademark Electronic Application System (TEAS). See, notice in the Federal Register, April 28, 2008, Vol. 73, No. 82, at Pages 22894-22895.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Further Notice of Proposed Rulemaking (FNPRM) regarding whether the eligible telecommunications carrier (ETC) obligation to provide monthly digital television (DTV) transition notices to low income subscribers should be expanded to require the provision of such notices to all subscribers, and whether multichannel video programming distributors (MVPDs) should be required to provide on air DTV transition education on their systems. This FNPRM [30 pages in PDF] is FCC 08-119 in MB Docket No. 07-148. See also, correction [PDF]. See, notice in the Federal Register, May 28, 2008, Vol. 73, No. 103, at Pages 30591-30596.

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