TLJ News from June 21-25, 2005

1st Circuit Delays Decision in First Amendment Case Regarding State Regulation of Broadcast Speech

6/24. The U.S. Court of Appeals (1stCir) issued its opinion in Laffey v. Begin, a case regarding the First Amendment, radio broadcasting, and government regulation of political speech. The Court of Appeals found a procedural pretext for punting the case back to the District Court.

WPRO-AM is radio station located in the state of Rhode Island. It broadcast a weekly talk radio program that featured the Mayor of Cranston, Rhode Island, Stephen Laffey.

The Chairman of the Cranston City Council, a political rival of Laffey, filed a complaint with the Rhode Island State Board of Elections alleging that WPRO-AM's radio program constitutes a political contribution in violation of state election election. Laffey is not now an candidate for any office, state or federal.

Roger Begin is the Chairman of the Board of Elections.

The Board of Elections ordered Laffey to cease and desist from speaking via this radio program.

Laffey then filed a complaint in U.S. District Court (DRI) against Begin and the other members of the Board of Elections alleging that their order violates his rights under the First Amendment of the U.S. Constitution. The District Court denied Laffey's request for a preliminary injunction. Laffey then brought this interlocutory appeal.

After oral argument, the Board of Elections stayed the operation of the cease and desist order pending resolution of the state law questions by the Rhode Island Supreme Court. But, there is no pending action in state court. The Court of Appeals then determined that the issue on appeal, the denial of a preliminary injunction, is moot. It remanded the case to the District Court.

All of the underlying legal issues in the case pertaining to the First Amendment, broadcast speech, and government regulation of political speech, remain unresolved.

This case is Stephen Laffey v. Roger Begin, et al., App. Ct. Nos. 05-1750 and 05-1790, appeals from the U.S. District Court for the District of Rhode Island, Judge Mary Lisi presiding. Judge Selya wrote the opinion of the Court of Appeals, in which Judges Lynch and Howard joined.

4th Circuit Affirms in Invention Promoter Case

6/24. The U.S. Court of Appeals (4thCir) issued its opinion [PDF] in Invention Submission Corporation v. Dudas, a case brought by an invention promoter against the U.S. Patent and Trademark Office (USPTO). This is the second time that this case has been before the Court of Appeals.

See, story titled "4th Circuit Rules USPTO Ad Campaign Was Not A Reviewable Final Agency Action" in TLJ Daily E-Mail Alert No. 839, February 18, 2004.

Invention Submission Corporation (ISC) filed a complaint in U.S. District Court (EDVa) against James Rogan, the former Director of the USPTO, in his official capacity. The action now bears the name of Jonathan Dudas, the current head of the USPTO.

ISC alleged violation of the Administrative Procedure Act (APA). ISC alleged that the USPTO's advertising campaign in 2002 to alert the public about invention promotion scams was aimed at ISC and harmed ISC. ISC alleged that this ad campaign was an illegal final agency action that was arbitrary and capricious, and that exceeded the statutory authority of the USPTO. The ad campaign did not mention ISC. However, it quoted an inventor who had paid money to ISC.

The District Court dismissed the complaint, pursuant to Rule 12(b)(6), for failure to state a claim upon which relief can be granted. ISC appealed.

The Court of Appeals, in its previous opinion, vacated and remanded with instructions that the District Court dismiss pursuant to Rule 12(b)(1), for lack of subject matter jurisdiction, on the grounds that the ad campaign was not a final agency action.

On remand, ISC filed a motion for leave to file an amended complaint for the purpose of avoiding the jurisdictional issue. The District Court denied the motion, and dismissed for lack of subject matter jurisdiction.

ISC appealed again. The Court of Appeals, in the present opinion, affirmed. It held that when it issues a mandate to dismiss a case, it means it.

This case is Invention Submission Corporation v. Jonathan Dudas, App. Ct. No. 04-2295, an appeal from the U.S. District Court for the Eastern District of Virginia, at Alexandria, Judge Leonie Brinkema presiding, D.C. No. CA-02-1038-1.

People and Appointments

6/24. Charles Schneider was named Executive Director of the Federal Trade Commission (FTC). He was Deputy Administrator at the National Gallery of Art. Judith Bailey, who has been the acting Executive Director since January 2005, will return to the position of Deputy Executive Director. See, FTC release.

More News

6/24. The Federal Communications Commission (FCC) announced, but did not release, a notice of proposed rulemaking (NPRM) regarding International Fixed Public Radiocommunications Services (IFPRS). The FCC issued a short release [PDF] in which it states that this NPRM proposes to eliminate Part 23 of its rules, which govern IFPRS, and to apply part 101 of its rules, which governs domestic services, to the two remaining IFPRS licensees. This is Docket Nos. 00-248 & 05-216.

Sen. Stevens Discusses His Process for Revising Telecom Law

6/23. Sen. Ted Stevens (R-AK), the Chairman of the Senate Commerce Committee (SCC), spoke about telecom legislation at a SCC meeting on pending nominees.

Sen. Ted StevensSen. Stevens has previously stated that he has been conducting "listening sessions", rather than open SCC hearings, about proposals for revising the Communications Act, and related matters. His meetings are closed and secret.

At the June 23 meeting, Sen. Stevens said that "We ask that you understand that we’ve asked the staff to prepare the working drafts or the bills that any Senator wishes to have considered in connection with the telecom issues that we've had listening sessions on, that we have those drafts before you leave for the Fourth of July recess."

Earlier this week, Sen. John Ensign (R-NV), a member of the SCC, discussed his plans to introduce a bill after the July 4 recess. See, story titled "Sen. Ensign to Introduce Telecom Bill in July" in TLJ Daily E-Mail Alert No. 1,160, July 23, 2005.

He continued: "Following that Fourth of July recess we intend to find a day to have a hearing, a substantial hearing -- it will take quite a long time as a matter of fact to explore some of the issues that we think are really in serious dispute with regard to the telecom issues before we proceed to try and work out a mark-up of the bill or bills that will reflect our judgment on the various telecom issues we should find a way to get Senate action on this year, hopefully, before the August recess but in any event in September."

So, if you have any suggestions you wish to have considered, I hope that you will give them to the staff so the staffs can try to at least get us a side-by-side version of the various views of Members on the specific issues that have been developed. We’ve had already several portions of the industry itself give us their checklists of various items they wish us to consider. We wish that that review will be an in depth review."

People and Appointments

6/23. President Bush nominated Steven Bradbury to be an Assistant Attorney General (AAG) in charge of the Office of Legal Counsel (OLC). He is currently the acting AAG in the OLC. He replaced Jack Goldsmith. He previously worked in the Washington DC office of the law firm of Kirkland & Ellis. And, he clerked for Supreme Court Justice Clarence Thomas and for former U.S. Court of Appeals (DCCir) Judge James Buckley. See White House release and release.

6/23. The Senate Commerce Committee approved by voice votes the nominations of Edmund Hawley (to be Assistant Secretary of Homeland Security for the Transportation Security Administration), Israel Hernandez (to be Assistant Secretary of Commerce and Director General of the United States and Foreign Commercial Service), William Jeffrey (to be Director of the National Institute of Standards and Technology), Ashok Kaveeshwar (to be Administrator of the Research and Innovative Technology Administration at the Department of Transportation), David Sampson (to be Deputy Secretary of Commerce), and John Sullivan (to be General Counsel of the Department of Commerce). Hawley's nomination now goes to the Senate Homeland Security and Government Affairs Committee. See, SCC release.

More News

6/23. The Supreme Court released six opinions, none of which are technology related. See, Mayle v. Felix (No. 04-563), Halbert v. Michigan (03-10198), Orff v. United States (03-1566), Exxon Mobil Corp. v. Allapattah Services, Inc. (04-70), Gonzalez v. Crosby (04-6432), and Kelo v. New London (04-108). The Supreme Court did not issue opinions on June 23 in MGM v. Grokster (regarding copyright and P2P systems), and NCTA v. Brand X (regarding regulation of broadband internet services). The Supreme Court did not release an order list on June 23.

6/23. The Internal Revenue Service (IRS) published a notice in the Federal Register that corrects its earlier notice in the Federal Register that provides guidance for the filing of information returns by donees relating to qualified intellectual property contributions. See, notice in Federal Register, June 23, 2005, Vol. 70, No. 120, at Page 36346, and notice in the Federal Register, May 23, 2005, Vol. 70, No. 98, at Pages 29450 - 29452.

6/23. The Senate Judiciary Committee (SJC) held an executive business meeting. It held over consideration of S 751, the "Notification of Risk to Personal Data Act".

US Chamber Hosts Panel on Municipal Broadband

6/22. The U.S. Chamber of Commerce's National Chamber Foundation hosted a panel discussion titled "The Effect of Municipal Broadband Networks on Competition".

Dianah Neff spoke on behalf of the city of Philadelphia, which plans to provide wireless broadband internet access services. James Baller also advocated the interests of municipalities that may provide municipal broadband services. See also, Baller's paper [PDF] titled "Deceptive Myths About Municipal Broadband".

Michael Balhoff, an attorney who was previously a telecom analyst at Legg Mason, and James Speta, a law professor at Northwestern University, argued that municipal broadband is not sound public policy.

Dianah Neff stated that a low percentage of Philadelphia residents who live in low income or minority neighborhoods have broadband access. Philadelphia wants to increase the broadband uptake in these neighborhoods. She added that the "digital divide is local". Her argument sounded like a universal service argument. However, in response to questions from the moderator, she said that Philadelphia's service will be offered "to anyone that wants it".

Neff also advanced a business rationale. She said that Philadelphia wants to make low income, minority, and light industrial neighborhoods attractive places for businesses to locate.

Baller argued that municipalities can provide broadband services in some areas sooner than the private sector would. These communities should not have to wait for private service offerings. He also said that in some cases municipalities want to provide services that provide customers more bandwidth than the private sector does.

Speta argued that if municipalities want there to be be greater uptake of broadband in poorer neighborhoods, they should pursue demand side policy, rather than a supply side policy. That is, instead of providing the service for everyone, they should be giving broadband vouchers to poor people.

Speta also argued that even in an area where there might end up being only one broadband provider, and that provider is a natural monopoly, the government should not be the provider. He said that it would be more efficient to have a private provider that in turn is regulated by the government.

Balhoff argued that there are many risks associated with government provision of broadband services. It might not allow competitive access to municipal facilities, such as streets, conduits and poles. It might end up cross subsidizing its service. And, in the end, it might drive the private providers out of the market.

He said that competitive choice is much more efficient at punishing under performing service providers than is the government.

Balhoff also responded to Neff's business promotion argument. He noted Philadelphia plans a wi-fi system, which is less secure that fiber based broadband. He said that businesses will not put their assets at risk in a wireless environment.

Speta and Balhoff also argued if municipalities do provide broadband services, they should also adopt pro-competitive rules, covering access to poles and conduits, and other topics.

This was a Chamber of Commerce luncheon event. Most of the attendees who offered comments, or asked questions, were associated with private sector service providers.

Qwest's Larry Sanders suggested that voters should be offered a referendum to approve any municipal plan to provide broadband services, because it involves government funding of something that is not traditionally a government function. Neff argued against holding referenda. She reasoned that voters can vote for their elected officials.

Harold Salter of T-Mobile asked whether, if municipalities provide broadband service, they will then seek universal service funding, and the Congress or the Federal Communications Commission (FCC) will be asked to create another universal service program.

David Cohen of the U.S. Telecom Association (USTA) asked whether municipalities will eventually privatize their municipal broadband operations. Baller responded that the history of municipal electricity services suggests an affirmative answer.

Matthew Berry Joins FCC

6/22. Matthew Berry, one of the Department of Justice's (DOJ) leading authorities and advocates on law enforcement surveillance and seizure of electronic communications and records of service providers, will join the Federal Communications Commission (FCC) as acting Deputy General Counsel. Although, he has also held other positions, and worked on other issues, including First Amendment, school choice and vouchers, affirmative action, and others. And, the FCC has not stated what matters he will handle.

He is currently Counselor to the Assistant Attorney General in charge of the DOJ's Office of Legal Policy (OLP). (He starts at the FCC on Monday, June 27.) He previously worked as an attorney-adviser in the DOJ's Office of Legal Counsel (OLC).

He has recently been working at the DOJ, and with the Congress, on issues related to government investigations that involve surveillance in the context of electronic communications, especially the sixteen sections of the USA PATRIOT Act that are scheduled to sunset at the end of 2005. However, he has not worked on CALEA related issues.

He testified before the House Judiciary Committee's (HJC) Subcommittee on Crime on May 26, 2005. See, prepared testimony [PDF]. He has also accompanied senior DOJ officials on their trips to Capitol Hill. He has sat immediately behind other DOJ witnesses at other recent hearings related to extension of the expiring provisions of the PATRIOT Act.

See, full story.

More People and Appointments

Sam Feder6/22. Federal Communications Commission (FCC) Chairman Kevin Martin named Samuel Feder (at left) acting General Counsel. Feder was Martin's Legal Advisor for spectrum and international issues. Before that, he handled common carrier issues. And before that, he was a Legal Advisor to former FCC Commissioner Harold Furchtgott-Roth. Martin was also a Legal Advisor to Furchtgott-Roth. Feder has also worked for the law firms of Harris Wiltshire & Grannis and Kellogg Huber, and for the Department of Justice. See, FCC release [PDF].

6/22. Federal Communications Commission (FCC) Chairman Kevin Martin named Emily Willeford Special Advisor for International Issues and Deputy Chief of Staff. Like Martin, Willeford worked for the Bush-Cheney 2000 election campaign. See, FCC release [PDF].

6/22. Thomas Barnett was named acting Assistant Attorney General of the Antitrust Division. He replaces Hewitt Pate. Barnett has been the Deputy Assistant Attorney General for civil enforcement at the Antitrust Division since March 31, 2004. He was previously a partner in the law firm of Covington & Burling, and vice-chair of the firm's Antitrust and Consumer Protection practice group. See, DOJ release.

More News

6/22. The Department of Homeland Security's (DHS) Transportation Security Administration (TSA) published a notice in the Federal Register regarding its Secure Flight Test Records system. See, Federal Register, June 22, 2005, Vol. 70, No. 119, at Pages 36319-36324. This notice amends the Privacy Act System of Records for the Secure Flight Test Records system and the Privacy Impact Assessment for the Secure Flight Test Phase. For more information, contact Lisa Dean, the TSA's Privacy Officer, at 571 227-3947.

6/22. The House Homeland Security Committee's Subcommittee on Economic Security, Infrastructure Protection, and Cybersecurity held a hearing titled "Ensuring the Security of America's Borders through the Use of Biometric Passports and Other Identity Documents". See, prepared testimony [20 pages in PDF] of the Government Accountability Office (GAO) titled "Information Security: Key Considerations Related to Federal Implementation of Radio Frequency Identification Technology", prepared testimony [3 pages in PDF] of Elaine Dezenski (DHS), prepared testimony [6 pages in PDF] of Frank Moss (Department of State), prepared testimony [5 pages in PDF] of Martin Herman (NIST), and prepared testimony [9 pages in PDF] of Stewart Verdery (Mehlman Vogel).

6/22. Kyle McSlarrow, P/CEO of the National Cable & Telecommunications Association (NCTA), gave a speech to the Media Institute in Washington DC titled "Cable Freedom". He said that the "Congress is appropriately taking a fresh look at the framework established by the 1996 Telecommunications Act." As for the 1996 Act, he said that "the framework in place today has either fostered -- or at least not prevented -- the spectacular growth of the Internet, the wireless industry, and more competition in services and applications in voice, video and data, than anyone could have imagined in 1996." He argued that in writing new legislation, "We should not look to our political institutions to intervene in what are properly marketplace negotiations. We should reduce economic regulation wherever possible. We should ensure that certain universally recognized social responsibilities and objectives are borne by all providers of the same communications services."

Sen. Ensign to Introduce Telecom Bill in July

6/21. Sen. John Ensign (R-NV) spoke at an event hosted by the Progress and Freedom Foundation (PFF) on reform of laws pertaining to telecommunications and electronic communications networks and services.

Sen. Ensign discussed a bill that he plans to introduce in the Senate in July, after the July 4 recess, that pertains to telecommunications and information technology.

He was intentionally vague about the contents of his bill. He said that, generally, he wants to take the federal and state governments "out of the business of picking winners and losers".

He also said that there are now multiple providers in the video market; there is no longer a monopoly situation. He said that it therefore no longer makes sense to have over thirty thousand local video franchisers. He said that video providers should not have to cut deals with all of these franchisers. Thus, he said that the cable and phone companies should be freed up from these franchisers.

He also spoke about Skype. He said that it is based outside of the U.S., and therefore, "it is out of the reach of U.S. regulators" and tax collectors. He suggested that the U.S. regulatory framework has to take this into consideration. He said that a "patchwork quilt of regulation" could drive customers to foreign companies.

He also said that telecom is taxed more heavily than everything except alcohol and tobacco. He noted that "if you can get around the taxes, people are going to get around the taxes", with services like Skype.

He concluded from this that "we have got to understand what technology is doing to our market place", and take this into account in designing a regulatory and tax regime. He added that "we have to get out of the way of innovators."

He did not, however, explain how his legislation will address these principles.

He said that his bill will not address universal service issues. He added that Sen. Ted Stevens (R-AK), the Chairman of the Senate Commerce Committee (SCC) very concerned about this issue, and plans to address that in his legislation.

He also spoke with reporters after his formal presentation. He also said that his bill will not address a transition to digital television. He declined to state what his bill will contain regarding VOIP.

He was also asked about hearings and listening sessions. Sen. Stevens uses the term "listening session" to describe closed, secret meetings with undisclosed parties, that he holds in lieu of public committee hearings. Sen. Stevens has stated that he is holding listening sessions on revisions to telecommunications law. He also plans to then introduce a bill, and rush it through the Congress with little public understanding of, or input in, the process.

Sen. Ensign, who is a member of the SCC, said that he has attended these listening sessions, and that he is holding some of his own. He said that whether there are any public hearing on his bill will be up to Sen. Stevens.

DC Circuit Rules in Northpoint v. FCC

6/21. The U.S. Court of Appeals (DCCir) issued its opinion [19 pages in PDF] in Northpoint v. FCC, setting aside part of the Federal Communications Commission's (FCC) DBS Auction Order.

Northpoint Technology's subsidiary, Compass Systems, applied to the FCC for licenses to provide digital broadcast satellite (DBS) service from unassigned channels at two of the eight orbital positions 1570 and 1660 west longitude -- assigned to the U.S. by the International Telecommunications Union (ITU) for the Planning in Region 2 of the Broadcasting Satellite Service in the Frequency Band 12.2-12.7 GHz and Associated Feeder Links in the Frequency Band 17.3-17.8 GHz. The opinion refers to this as the ITU Region 2 Band Plan.

The FCC's International Bureau (IB) and Wireless Telecommunications Bureau (WTB) dismissed the application on the grounds that competitive bidding rules govern the awarding of the DBS service licenses, and that the application would be accepted only during an established filing window. However, the FCC also issued a public notice announcing the auction of DBS service licenses, and requesting comments.

The key statutory provision at issue is Section 647 of the ORBIT Act. It provides that "Notwithstanding any other provision of law, the Commission shall not have the authority to assign by competitive bidding orbital locations or spectrum used for the provision of international or global satellite communications services. The President shall oppose in the International Telecommunication Union and in other bilateral and multilateral fora any assignment by competitive bidding of orbital locations or spectrum used for the provision of such services."

This is Section 647 of S 376 (106th Congress), titled the "Open-market Reorganization for the Betterment of International Telecommunications Act". It became Public Law No. 106-180. It is codified at 47 U.S.C. § 765f.

The FCC reasoned that the DBS service licenses at issue are not "for the provision of international or global satellite communications services" within the meaning of the statute. And the FCC proceeding to auction the licenses for which Compass had applied. See, DBS Auction Order, 19 FCC Rcd at 823.

Northpoint did not participate in the auction. Instead it filed a petition for review, and an appeal, with the U.S. Court of Appeals.

The Court applied Chevron deference.

It reasoned that "To the extent that Northpoint couches its arguments in Chevron step one terms -- i.e., that section 647 of the ORBIT Act unambiguously prohibits the auctioning of licenses to operate DBS service channels -- it misses the mark. ... Section 647’s ambiguity is plain and profound ... The section provides that “the Commission shall not have the authority to assign by competitive bidding orbital locations or spectrum used for the provision of international or global satellite communications services.” ... Orbital locations or spectrum not yet assigned by the Commission, however, are plainly not “used for” any type of service, including international or global satellite communications services. ... Accordingly, because the statute, if read literally, would limit the Commission’s auction authority based on non-existent conditions, it is ambiguous and requires interpretation." (Emphasis in original.)

It continued that "Under Chevron step two, the Commission’s interpretation of section 647 at first blush appears plausible. The Commission interpreted “the language of the statutory prohibition to focus on whether the particular spectrum being ‘assigned’ is ‘used for’ international or global satellite communications services.” DBS Auction Order, ... This makes sense as section 647 prohibits only the auctioning of spectrum that is “used for” international or global satellite communications service, see 47 U.S.C. § 765f; it does not expressly prevent the auctioning of spectrum that is “used for” domestic satellite communications services simply because that spectrum is also “used for” for international or global satellite communications services." (Emphasis in original.)

However, the Court continued that it would not defer to this construction of Section 647, for several reasons.

First, the FCC's "reliance on the ITU Region 2 Band Plan as a basis for treating DBS service as a solely domestic satellite communications service is dubious in light of the policy it announced in DISCO I."

Second, "despite the Commission’s attempt to convert the Plan into a substantive bar to international DBS service (or BSS), it conceded at oral argument that there is no international treaty or other agreement (including the Plan) that prohibits a licensee from providing international DBS service from the orbital locations assigned to the United States." (Parentheses in original.)

Third, the FCC "has failed to adequately distinguish between NGSO FSS, which it treats as an international service, and DBS, which it treats as a “predominantly” domestic service."

The Court therefore concluded that "While section 647 of the ORBIT ACT unambiguously forbids only the auctioning of orbital locations or spectrum used for “international or global satellite communications services,” not domestic satellite communications services, the Commission’s construction of the statute to exclude DBS from the auction prohibition cannot withstand scrutiny at this point. Insofar as its construction is bottomed on a supposed substantive barrier imposed by the ITU Region 2 Band Plan, it is not reasonable. Since DISCO I the Commission has treated the Plan as a nonsubstantive barrier to international DBS service. Indeed, the Commission freely admits that it knows of no agreement or treaty prohibiting the provision of international DBS service by an FCC licensee."

The Court added that "A statutory interpretation premised in part on either a non-existent factor or one that results from an unexplained departure from prior Commission policy and practice is not a reasonable one. Equally unreasonable is the Commission’s use of an unidentified, but apparently crucial, difference between NGSO FFS service and DBS service to support its interpretation. There may be a key difference between the two but all the Commission has shown us are similarities. Chevron, however, does not allow for guesswork. Therefore, while the Commission’s construction of section 647 of the ORBIT Act may not be prohibited by the statutory text (and may even represent a wise policy choice), it is an unreasonable construction on this record and the auction premised on it is unauthorized." (Parentheses in original.)

Hence, the Court granted the petition for review, vacated the relevant portion of the DBS Order, and remanded to the FCC. The Court dismissed the appeal.

This case is Northpoint Technology Ltd. and Compass Systems, Inc., U.S. Court of Appeals for the District of Columbia, App. Ct. Nos. 04-1052 and No. 04-1053, an appeal of, and petition for review of, a final order of the Federal Communications Commission. Judge Karen Henderson wrote the opinion of the Court, in which Judges Edwards and Randolph joined.

GAO Reports on Prospects for Imposing Countervailing Duties on Chinese Products

6/21. The The Government Accountability Office (GAO) released a report [55 pages in PDF] titled "U.S.-China Trade: Commerce Faces Practical and Legal Challenges in Applying Countervailing Duties".

This report pertains to the current unavailability of countervailing duties (CVDs) on products subsidized by the government of the Peoples Republic of China. It does not focus on technology sector products. However, the report notes, for example, that the U.S. has imposed CVDs against other countries for subsidization of semiconductors. (See, Pages 39-40, at Footnotes 8 and 9.)

The report states that "U.S. producers that believe themselves injured by subsidized Chinese imports have not been able to obtain relief through CVD actions because China is considered a nonmarket economy country (NME) under U.S. law and practice. In two 1984 cases, the Department of Commerce declined to make CVD determinations for NME countries on the grounds that it lacked explicit legal authority to impose CVDs on NME countries and that, as a practical matter, it could not arrive at economically meaningful conclusions regarding subsidies in such countries --and therefore could not rationally apply the CVD laws."

The repot continues that the Department of Commerce (DOC) "could take either of two paths to applying U.S. CVD laws to China. First, Commerce could, when appropriate, make administrative determinations that reclassify China as a market economy or individual Chinese industries as ``market oriented´´ in character. This would permit Commerce to take CVD action against China on a country or industry basis. Commerce has criteria in place for making both types of determinations. However, Commerce officials stated that it may be difficult for China to meet these criteria in the near term. Second, Commerce could reverse its 1984 position and process CVD actions against China without changing that country’s NME status. However, absent a clear congressional grant of authority, such a decision by Commerce could be challenged in court, with uncertain results."

The report also stated that the DOC "would face substantial challenges in determining appropriate CVD levels against Chinese products. Chinese subsidies remain difficult to identify and quantify -- largely because of the structure of the Chinese economy and a lack of transparency in the country’s subsidy regime. Commerce has no directly relevant experience and little guidance in place to indicate how it would proceed."

It adds that "Making CVDs available against China would give U.S. producers access to import relief measures that explicitly target unfair government subsidies. However, it is unclear whether applying CVDs would result in levels of protection for U.S. producers that are higher than those already applied in the form of antidumping duties."

On Thursday, June 23, at 10:00 AM, the Senate Finance Committee will hold a hearing regarding U.S. China economic relations. The witnesses will include Alan Greenspan (Chairman of the Federal Reserve Board), John Snow (Secretary of the Treasury), Sean Maloney (EVP of Intel, on behalf of the U.S. Chamber of Commerce), and others.

FCC News

6/21. The Federal Communications Commission (FCC) released the text [47 pages in PDF] of its Order on Reconsideration and Further Notice of Proposed Rulemaking in its proceeding regarding the regulation of the design and marketing of wireless phones with respect to hearing aid compatibility. This item is FCC 05-122 in WT Docket No. 01-309. See also, FCC release [PDF] that describes this item. Initial comments in response to the FNPRM will be due 60 days after publication of a notice in the Federal Register. Reply comments will be due within 90 days. This publication has not yet taken place. See also, story titled "FCC Adopts Order Regarding Hearing Aid Compatibility of Wireless Phones" in TLJ Daily E-Mail Alert No. 1,152, June 13, 2005.

6/21. The Federal Communications Commission's (FCC) Wireline Competition Bureau's (WCB) Industry Analysis and Technology Division (IATD) released its report [183 pages in PDF] titled "Trends in Telephone Service".

6/21. The Federal Communications Commission (FCC) Wireline Competition Bureau (WCB) held a closed meeting in its proceedings titled "In the Matter of IP-Enabled Services", WC Docket No. 04-36, and "E911 Requirements for IP-Enabled Service Providers", WC Docket No. 05-196. There is no coverage of this meeting in this issue because TLJ was barred from attending the meeting.

6/21. The Federal Communications Commission (FCC) announced that beginning on June 26, most FCC electronic systems will not be available to the public from Sunday at 10:00 PM (EDT) through Monday at 6:00 AM (EDT). The FCC stated in a release [PDF] that "This means that most FCC Electronic Filing Systems, Public Access Systems, and on-line documents will not be available ... Several systems including ASR, NORS and ULS will not be affected by this maintenance schedule."

6/21. The American Civil Liberties Union (ACLU) released a report titled "Science Under Siege". It asserts that the Bush administration has adopted policies that restrain academic freedom and scientific inquiry in the pursuit of national security. See also, ACLU release.

People and Appointments

6/21. Federal Communications Commission (FCC) Commissioner Kathleen Abernathy named Russell Hanser to be her acting Legal Advisor for wireline competition issues. He was Special Counsel to the Chief of the FCC's Wireline Competition Bureau's (WCB) Competition Policy Division. He has worked on local competition and IP-enabled services issues. Before going to work at the FCC, he worked for the law firms of Wilmer Cutler & Pickering and Ropes & Gray. Abernathy also announced that Lauren Pete Belvin, who has recently focused on wireline competition matters, will assume primary responsibility for media issues. John Branscome will continue to handle wireless, international, and technology issues. See, FCC release [PDF]

6/21. Roslynn Mauskopf (U.S. Attorney for the Eastern District of New York), Michael  Sullivan (USA for the District of Massachusetts), and Drew Wrigley (USA for the District of North Dakota) were named to the Attorney General's Advisory Committee of United States Attorneys. See, DOJ release.

More News

6/21. The Government Accountability Office (GAO) wrote a letter [4 pages in PDF] to Rep. John Dingell (D-MI), the ranking Democrat on the House Commerce Committee, and Rep. Ed Markey (D-MA), the ranking Democrat on the Subcommittee on Telecommunications and the Internet, regarding a transition to digital television. Specifically, this letter addresses the costs associated with proposals to create a government program to subsidize digital to analog converter equipment, for those consumers who still receive television signals over the air with analog equipment. The two Representatives had written the GAO asking for its estimate. The letter states that the GAO does not know what the program would cost.

Go to News from June 16-20, 2005.