7/23. President Bush issued a notice and a Message to the Congress stating that due to a continuing national emergency he is maintaining in effect the export regulations of the Department of Commerce's (DOC) Bureau of Industry and Security (BIS). He has issued a similar notice every year since 2001.

These regulations affect, among other things, exports and "deemed exports" of dual use items, such as computers, software, and encryption products. These regulations also regulate some employment practices.

These regulations implement the Export Administration Act of 1979. However, that out of date Act expired in 2001. The International Emergency Economic Powers Act gives the President the power to declare this national emergency.

The emergency is that Congress will not pass a new Export Administration Act (EAA). There were serious efforts in both the House and Senate until 2002 to pass a new act that would both update and extend the old act.

See, for example, stories titled "Export Controls" in TLJ Daily E-Mail Alert No. 119, February 8, 2001, "Sen. Enzi Advocates Export Administration Act" in TLJ Daily E-Mail Alert No. 282, October 9, 2001, "House Votes to Extend Export Administration Act" in TLJ Daily E-Mail Alert No. 316, November 28, 2001, and "Sen. Enzi Plans to Reintroduce Export Administration Act in 108th Congress" in TLJ Daily E-Mail Alert No. 566, December 12, 2002.

However, there has been little effort since 2002, although bills continue to be introduced. See for example, S 2000 [LOC | WW], the "Export Enforcement Act of 2007"

President Bush wrote in his notice that "On August 17, 2001, consistent with the authority provided to me under the International Emergency Economic Powers Act (50 U.S.C. 170l et seq.), I issued Executive Order 13222. In that order, I declared a national emergency with respect to the unusual and extraordinary threat to the national security, foreign policy, and economy of the United States in light of the expiration of the Export Administration Act of 1979, as amended (50 U.S.C. App. 2401 et seq.). Because the Export Administration Act has not been renewed by the Congress, the national emergency declared on August 17, 2001, must continue in effect beyond August 17, 2008. Therefore, in accordance with section 202(d) of the National Emergencies Act (50 U.S.C. 1622(d)), I am continuing for 1 year the national emergency declared in Executive Order 13222."

7/18. The Federal Communications Commission (FCC) filed its brief [87 pages in PDF] with the U.S. Court of Appeals (DCCir) in C-SPAN v. FCC, a petition for review of the FCC's Third Report and Order regarding mandatory cable carriage of digital broadcast television signals after the DTV transition.

Oral argument is scheduled for September 15, 2008.

On September 11, 2007, the FCC adopted a Third Report and Order and Third Further Notice of Proposed Rulemaking regarding the mandatory cable carriage of digital broadcast television signals after the conclusion of the digital television (DTV) transition.

The FCC elaborated that cable operators can "comply with the viewability requirement by choosing to either: (1) carry the digital signal in analog format, or (2) carry the signal only in digital format, provided that all subscribers have the necessary equipment to view the broadcast content."

See, 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.

The FCC released the text [68 pages in PDF] of this item on November 30, 2007. This proceeding is titled "Carriage of Digital Television Broadcast Signals, Amendment to Part 76 of the Commission's Rules". This order is FCC 07-170 in CS Docket No. 98-120.

C-SPAN filed its petition for review on February 4, 2008. See, story titled "Cable Programming Networks Challenge FCC's September Viewability Order" in TLJ Daily E-Mail Alert No. 1,716, February 12, 2008.

The FCC argues in its brief that C-Span, Discovery and other cable programming networks lack standing to challenge this order, that the order is consistent with 47 U.S.C. §§ 534 and 535, and that the order does not violate the First Amendment rights of the C-Span and the other petitioners.

This case is C-Span, et al. v. FCC and USA, U.S. Court of Appeals, App. Ct. No. 08-1045, a petition for review of a final order of the FCC.

7/22. The House Commerce Committee's (HCC) Subcommittee on Telecommunications and the Internet held a hearing titled "Issues in Telecommunications Competition". This hearing also addressed HR 3914 [LOC | WW], the "Protecting Consumers through Proper Forbearance Procedures Act".

Section 10(c) of the Communications Act, which is codified at 47 U.S.C. § 160(c), provides, in part, that "Any telecommunications carrier, or class of telecommunications carriers, may submit a petition to the Commission requesting that the Commission exercise the authority granted under this section with respect to that carrier or those carriers, or any service offered by that carrier or carriers. ... The Commission may grant or deny a petition in whole or in part and shall explain its decision in writing."

Section 160(a) provides that the FCC "shall forbear from applying any regulation or any provision of this chapter to a telecommunications carrier or telecommunications service, or class of telecommunications carriers or telecommunications services, in any or some of its or their geographic markets, if the Commission determines that --- (1) enforcement of such regulation or provision is not necessary to ensure that the charges, practices, classifications, or regulations by, for, or in connection with that telecommunications carrier or telecommunications service are just and reasonable and are not unjustly or unreasonably discriminatory; (2) enforcement of such regulation or provision is not necessary for the protection of consumers; and (3) forbearance from applying such provision or regulation is consistent with the public interest."

The forbearance process became controversial in 2006. See, story titled "FCC Announces that Verizon Petition for Forbearance is Deemed Granted" in TLJ Daily E-Mail Alert No. 1,334, March 22, 2006.

Rep. John Dingell (D-MI), the Chairman of the HCC, stated that "This provision is dangerous and bad policy because it allows agency action to take effect without any formal vote or supporting record. Consumers and companies then have no right or recourse when the lack of enforcement harms consumers."

He continued that "We are familiar with the episode in 2006 when a four-member Commission was evenly divided on the merits of a forbearance petition and was therefore unable to act. Because the deadline passed with no Commission action, the petition was deemed granted and a host of regulations were tossed aside. Making matters worse, the Commission failed to issue an Order explaining the scope of relief granted, which prevented Congress from conducting appropriate oversight and precluded meaningful judicial review."

He also noted that "Too often, industry petitioners have rigged the process, by filing amended petitions late so that opposing parties have no meaningful opportunity to respond."

See, prepared testimony [PDF] of Larissa Herda (TW Telecom, Inc.), prepared testimony [PDF] of Matthew Salmon (Comptel), prepared testimony [PDF] of Carl Grivner (XO Communications), prepared testimony [PDF] of Cathy Avgiris (Comcast), and prepared testimony [PDF] of Jonathan Banks (U.S. Telecom Association).

Banks (US Telecom) wrote that "Our member companies view forbearance as one of the important tools created by Congress in the 1996 Act to ensure that outdated regulations that are no longer in the public interest are removed from the FCC's regulatory playbook. Section 11 of the Act shares a similar aim of removing outdated regulations, requiring the FCC to conduct a biennial review of communications regulations and to jettison those that no longer serve the public interest. Unfortunately, section 11 has been all but read out of the statute, increasing the importance of maintaining a viable and speedy forbearance process."

In contrast, Salmon (Comptel) wrote that "Section 10 of that Act has been really troubling. This small section actually has the ability to undue all of the good that the rest of the Act seeks to accomplish."

He added that "Section 10 has opened the door for companies to leap-frog over the FCC’s normal rulemaking procedures and actually dictate the Commissions time and resources to fulfill one particular company’s anti-competitive goals."

7/23. Federal Communications Commission (FCC) Commissioner Robert McDowell named Nick Alexander (at right) to be his Legal Advisor for wireline issues. Alexander has worked for the FCC since 2005 on universal service issues, antitrust merger reviews (including the AT&T BellSouth merger), and VOIP and 911 regulation. Most recently, he was acting Deputy Chief of the Wireline Competition Bureau's (WCB) Telecommunications Access Policy Division (TAPD). He was FCC Chairman Kevin Martin's acting advisor for wireline issues in early 2007. Before joining the FCC, he worked for the law firm of Akin Gump. He is also a former infantry officer of the U.S. Army. John Hunter, who was previously McDowell's Special Counsel on wireline issues and Chief of Staff, was named Deputy Chief of the WCB's Pricing Policy Division (PPD). See, FCC release [PDF].

7/23. President Bush nominated Marco Hernandez to be a Judge of the U.S. District Court for the District of Oregon. See, White House release.

7/23. President Bush nominated Eric Melgren to be a Judge of the U.S. District Court for the District of Kansas. See, White House release.

7/24. The World Trade Organization (WTO) issued a release regarding the status of Doha round trade negotiations currently underway in Geneva, Switzerland, as of July 24, 2008. Pascal Lamy (at right), Director General of the WTO, stated that "positions still remain too far apart". This release also addresses intellectual property rights issues, including wine and spirits geographical indications, and proposals to require patent applicants to disclose the origin of genetic material and traditional knowledge".

7/23. Sen. Charles Grassley (R-IA) issued a statement regarding World Trade Organization (WTO) Doha round trade negotiations currently underway in Geneva, Switzerland. He wrote, "if other countries don't match the U.S. level of ambition, this week’s ministerial will grind to a halt, and fast. After almost seven years of the Doha round, it would be a shame to waste this opportunity." Sen. Grassley is the ranking Republican on the Senate Finance Committee, which has jurisdiction over international trade. He represents a farm state, and hence, does not wish to see the U.S. reduce its protection of the U.S. farm sector without comparable concessions from other nations.

7/23. The Federal Communications Commission (FCC) filed its brief [redacted, 62 pages in PDF] with the U.S. Court of Appeals (DCCir) in Verizon v. FCC, a petition for review of the FCC's December 5, 2007, order denying Verizon's six petitions to forbear, pursuant to 47 U.S.C. § 160, from applying its rules regarding unbundling, and leasing to competitors, of certain network elements in six markets -- New York, Philadelphia, Boston, Pittsburg, Providence, and Virginia Beach. At issue is application of the FCC's rules implementing the 47 U.S.C. § 251(c)(3) loop and transport The FCC argues that its denial was reasonable. This case is Verizon Telephone Companies, v. FCC and USA, U.S. Court of Appeals, App. Ct. No. 08-1012, a petition for review of a final order of the FCC.

7/23. Dennis Wharton of the National Association of Broadcasters (NAB) commented on the possibility that the Federal Communications Commission (FCC) will soon give its approval, by a 3-2 vote, of the merger of XM and Sirius. He stated in a release that "Historians will view this satellite radio giveaway as an irrational departure from 118 years of antitrust law wisely founded on the unassailable reality that competition serves consumers better than monopolies. NAB thanks Commissioners Copps and Adelstein -- along with consumer groups, 80 bipartisan members of Congress, and scores of labor, minority and antitrust organizations -- who stood against this wrongheaded monopoly. Given such overwhelming opposition, we're not convinced the final chapter of this book has been written." On March 24, 2008, the Department of Justice's (DOJ) Antitrust Division announced that it will not challenge the merger of XM and Sirius. The Antitrust Division, unlike the FCC, has both economic expertise and statutory authority to conduct antitrust mergers reviews. See, story titled "DOJ Won't Challenge XM Sirius Merger" in TLJ Daily E-Mail Alert No. 1,736, March 25, 2008.

7/23. The U.S. District Court (DOre) sentenced Jeremiah Joseph Mondello to serve four years in prison following his plea of guilty to criminal copyright infringement, aggravated identity theft and mail fraud. The Department of Justice (DOJ) explained the copyright infringement charge in a release: "Mondello initiated thousands of separate online auctions, using more than 40 fictitious usernames and online payment accounts to sell copies of counterfeit software". It also explained that the identity theft arose out of use of a keystroke logger program: "Mondello acquired victims' names, bank account numbers and passwords by using a computer keystroke logger program. The keystroke logger program installed itself on victims' computers and recorded the victim's name and bank account information as the information was being typed. The program then electronically sent the information back to Mondello which he then used to establish the online payment accounts." The Software & Information Industry Association (SIIA) began the investigation of Mondello, and then provided information to the DOJ. The SIIA's Keith Kupferschmid stated in a release [PDF] that "there are hundreds more like him running illegal operations on eBay and other sites. The Mondello case demonstrates that these pirates won’t simply get a slap on the wrist when caught -- they very well may end up doing serious time in federal prison."

The House will meet at 10:00 AM for legislative business. It will consider several non-technology related items. See, Rep. Hoyer's schedule for week of July 21, and schedule for July 24.

The Senate will meet at 9:30 AM. It will resume consideration of the motion to proceed to S 3186 [LOC | WW], the "Warm in Winter and Cool in Summer Act", an appropriations bill for home energy expenses of low income persons.

8:30 AM - 4:30 PM. Day one of a two day public workshop hosted by the Department of Homeland Security (DHS) titled "Implementing Privacy Protections in Government Data Mining". See, notice in the Federal Register, June 25, 2008, Vol. 73, No. 123, at Pages 36093-36094. Location: Hilton Washington, International Ballroom East, 1919 Connecticut Ave., NW.

9:00 AM. Day two of a two day meeting of the Bureau of Industry and Security's (BIS) Information Systems Technical Advisory Committee. The July 24 portion of the meeting is closed to the public, and its agenda is not disclosed. See, notice in the Federal Register, July 7, 2008, Vol. 73, No. 130, at Pages 38395-38396. Location: Hoover Building, Room 3884, 14th Street between Constitution and Pennsylvania Aves. NW.

10:00 AM. The House Judiciary Committee's (HJC) Subcommittee on Commercial and Administrative Law will meet to mark up HR 3679 [LOC | WW], the "State Video Tax Fairness Act of 2007". The HJC will webcast this event. Location: Room 2141, Rayburn Building.

10:00 AM. The House Ways and Means Committee's Subcommittee on Heath will hold a hearing titled "Promoting the Adoption and Use of Health Information Technology". See, notice. Location: Room 1100, Longworth Building.

12:00 NOON. Sen. Patrick Leahy (D-VT), Sen. Arlen Specter (R-PA) Sen. Evan Bayh (D-IN), and Sen. George Voinovich (R-OH) will hold a news conference to announce new legislation pertaining to address intellectual property rights enforcement. Location: Room S- 325, Radio and Television Gallery, U.S. Capitol Building.

12:00 - 2:00 PM. The DC Bar Association will host a program titled "The ABCs of IP: A Primer on Patent, Copyright, and Trademark Law". Janet Fries (Drinker Biddle & Reath) will review copyright law. Gary Krugman (Sughrue Mion) will review trademark law. Steven Warner (Fitzpatrick Cella Harper & Scinto) will review patent law. Maureen Browne (Heller Ehrman) will moderate. For more information, contact 202-626-3463. See, notice. Location: DC Bar Conference Center, B-1 Level, 1250 H St., NW.

1:00 - 5:00 PM. The Department of Health and Human Services' (DHHS) Office of the National Coordinator for Health Information Technology's (ONCHIT) American Health Information Community Confidentiality, Privacy, & Security Workgroup will hold a meeting. See, notice in the Federal Register, June 20, 2008, Vol. 73, No. 120, at Page 35139. Location: Switzer Building, Conference Room 1114, 330 C St., SW.

The House will not meet.

The Senate will meet at 9:15 AM. It will resume consideration of S 3268 [LOC | WW], the "Stop Excessive Energy Speculation Act of 2008".

8:30 AM - 12:30 PM. Day one of a two day public workshop hosted by the Department of Homeland Security (DHS) titled "Implementing Privacy Protections in Government Data Mining". See, notice in the Federal Register, June 25, 2008, Vol. 73, No. 123, at Pages 36093-36094. Location: Hilton Washington, International Ballroom East, 1919 Connecticut Ave., NW.

10:00 AM - 12:00 NOON. The House Intelligence Committee's (HIC) Subcommittee on Oversight and Investigations will hold a closed hearing titled "Department of Justice Office of the Inspector General". Location: Room H-405, Capitol Building.

Extended deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its further notice of proposed rule making (FNPRM) regarding service rules for licensed fixed and mobile services, including Advanced Wireless Services (AWS), in the 1915-1920 MHz, 1995-2000 MHz, 2155-2175 MHz, and 2175-2180 MHz bands. This FNPRM is FCC FCC 08-158 WT Docket Nos. 07-195 and 04-356. See, original notice in the Federal Register, June 25, 2008, Vol. 73, No. 123, at Pages 35995-36013, and notice of extension in the Federal Register, July 14, 2008, Vol. 73, No. 135, at Pages 40271-40272.

The House will meet at 11:00 AM.

12:00 - 2:00 PM. The DC Bar Association will host a panel discussion titled "MySpace, Facebook, and the Workplace". The speakers will be Micah Salb (Lippman Semsker & Salb), Michael Songer (Crowell & Moring), Lily Garcia (Washington Post columnist), and Anne Donohue (SRA International, Inc.). The price to attend ranges from $20 to $30. For more information, contact 202-626-3463. See, notice. Location: DC Bar Conference Center, B-1 Level, 1250 H St., NW.

10:00 AM. The Senate Finance Committee (SFC) will hold a hearing titled "The Future of U.S. Trade Policy: Perspectives from Former U.S. Trade Representatives". See, notice. Location: Room 215, Dirksen Building.

10:00 AM. The Senate Judiciary Committee (SJC) will hold a hearing titled "Music and Radio in the 21st Century: Assuring Fair Rates and Rules across Platforms". The witnesses will be John Simson (SoundExchange), John Ondrasik (singer & songwriter), and Jeffrey Harleston (Geffen Records). Sen. Dianne Feinstein (D-CA) will preside. She is the sponsor of S 256 [LOC | WW], the "Platform Equality and Remedies for Rights Holders in Music Act of 2007". See, notice. Location: Room 226, Dirksen Building.

11:00 AM. The Center for Democracy & Technology (CDT) and Ernst & Young will hold a news conference to release a study titled "The State of Telecommuting: Privacy and Security". For more information, call Brock Meeks (CDT) at 202-6377-9800 x114. To participate by phone, call 866-247-4356. Location: CDT, Suite 1100, 1634 Eye St., NW.

The U.S. International Trade Commission's (USITC) is scheduled to transmit its report for the House Ways and Means Committee regarding government policies affecting trade with the People's Republic of China (PRC). The USITC is examining, among other sectors, semiconductors and telecommunications. See, notice in the Federal Register, July 31, 2007, Vol. 72, No. 146, at Pages 41773-41774, and USITC release. This proceeding is titled "China: Government Policies Affecting U.S. Trade in Selected Sectors" and numbered Inv. No. 332-491.

RESCHEDULED TO AUGUST 13. The Federal Communications Commission (FCC) will commence Auction 78, the AWS-1 and Broadband PCS auction. See, Public Notice (DA 08-1090) and notice in the Federal Register, May 29, 2008, Vol. 73, No. 104, at Pages 30919-30938.

9:00 AM. The Senate Judiciary Committee (SJC) will hold a hearing titled "Politicized Hiring at the Department of Justice". See, notice. Location: Room 226, Dirksen Building.

10:00 AM. The Senate Commerce Committee (SCC) will hold a hearing titled "Improving Consumer Protection in the Prepaid Calling Card Market". This hearing will also address S 2998 [LOC | WW], the "Prepaid Calling Card Consumer Protection Act of 2008", sponsored by Sen. Bill Nelson (D-FL). Sen. Nelson will preside. See, notice. Location: Room 253, Russell Building.

12:00 NOON - 1:30 PM. The Alliance for Public Technology (APT) host a panel discussion titled "Broadband in Low-income Communities: From Access to Adoption". The speakers will be Rep. Edolphus Towns (D-NY), Joy Howell (APT), Austin Bonner (One Economy Corporation), and Alec Ross (OEC). A box lunch will be served. Location: Room HC-6, Capitol Building.

9:00 AM - 4:30 PM. Day one of a two day meeting of the Department of Homeland Security's (DHS) Homeland Security Information Network Advisory Committee. See, notice in the Federal Register, July 2, 2008, Vol. 73, No. 128, at Page 37975-37976. Location: Bolger Center, 9600 Newbridge Drive, Potomac, MD.

9:30 AM. The Senate Homeland Security and Governmental Affairs Committee's (SHSGAC) Subcommittee on Federal Financial Management, Government Information, Federal Services, and International Security will hold a hearing titled "Offline and Off-budget: The Dismal State of Information Technology Planning in the Federal Government". See, notice. Location: Room 342, Dirksen Building.

10:00 AM. The Senate Commerce Committee (SCC) will meet to mark up several bills, including S 3274 [LOC | WW], the "National Nanotechnology Initiative Amendments Act of 2008". See, notice. Location: Room 253, Russell Building.

10:00 AM. The Senate Judiciary Committee (SJC) may hold an executive business meeting. The agenda once again includes consideration of S 2746 [LOC | WW], the "OPEN FOIA Act of 2008". The SJC rarely follows its published agendas. Location: Room 226, Dirksen Building.

10:00 AM - 12:00 NOON. The House Science Committee (HSC) will hold a hearing titled "Oversight of the Federal Networking and Information Technology Research and Development (NITRD) Program". The witnesses will be Chris Greer (NITRD), Daniel Reed (Microsoft), Craig Stewart (Indiana University), and Don Winter (Boeing Company). Location: Room 2318, Rayburn Building.

10:00 AM. The House Small Business Committee (HSBC) will hold a hearing titled "Cost and Confidentiality: The Unforeseen Challenges of Electronic Health Records in Small Specialty Practices". Location: Room 1539, Longworth Building.

Extended deadline to submit initial comments to the Copyright Office (CO) in response to its proposed rule changes regarding retransmission of digital television broadcast signals by cable operators pursuant to 17 U.S.C. § 111. See, notice of extension in the Federal Register, July 14, 2008, Vol. 73, No. 135, at Page 40203, and original notice in the Federal Register, June 2, 2008, Vol. 73, No. 106, at Pages 31399-31415.

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