TLJ News from October 21-25, 2005

Court of Appeals Vacates in Kidd v. FCC

10/25. The U.S. Court of Appeals (DCCir) issued its opinion [12 pages in PDF] in Kidd v. FCC, vacating and remanding a final order of the Federal Communications Commission (FCC) that approved the transfer of Kidd Communication's AM radio license to Paradise Broadcasting, Inc.

Kidd purchased an insignificant AM radio station somewhere in eastern California. It gave the seller, Paradise, a promissory note. The FCC approved the transfer of the associated broadcast license.

Kidd did not pay. Kidd and Paradise then executed another document in which Kidd gave Paradise a reversionary interest in, among other things, the license. Kidd still did not pay. So, Paradise filed a complaint in state court in California. The state court had the authority to give a money judgment to Paradise, and to enable Paradise to regain possession of the physical assets. However, it recognized that it lacked authority to transfer ownership of the license. So, it appointed a trustee to apply to the FCC to transfer the license. The FCC did so. Kidd appealed to the U.S. Court of Appeals.

There is nothing particularly important about this one AM license. Nevertheless, the case illustrates the tension between the FCC statute and regulations, which treat spectrum as government property, and the FCC's efforts to allow the various spectrum using industry sectors to operate in a manner that resembles free enterprise.

The FCC's spectrum related statute and regulations today are still written in language that Herbert Hoover would understand and appreciate. For example, the regulation at issue in this case provides that "In transferring a broadcast station, the licensee may retain no right of reversion of the license, no right to reassignment of the license in the future, and may not reserve the right to use the facilities of the station for any period whatsoever. ... No license, renewal of license, assignment of license or transfer of control of a corporate licensee will be granted or authorized if there is a contract, arrangement or understanding, express or implied, pursuant to which, as consideration or partial consideration for the assignment or transfer, such rights, as stated in paragraph (a) of this section, are retained." See, 47 C.F.R. § 73.1150(a). Licenses are only to be transferred by the FCC, and only upon a public interest finding.

In the present case, Kidd did execute an agreement that provided for a right of reversion. Paradise went to court to exercise this right of reversion. And, the California court held for Paradise. All that remained was for the FCC to actually revert the license. It did so -- contrary to its regulation.

However, to have done otherwise would have had consequences for the broadcast industry. As the Court of Appeals pointed out, reposing a radio station, without repossessing its broadcast license, is of little use to the creditor. It wrote that "state courts faced with contract disputes involving conflicting claims to broadcast stations realize that the physical assets are worthless without the licenses, and so are inclined to fashion remedial orders that treat the two as a bundle."

Had the FCC applied its regulation, and denied the reversion, it would have undermined the ability of broadcasters like Paradise, or any other similar creditors of license holders, to enforce their contracts. This would make creditors less likely to extend credit to a broadcaster, and thus make it harder for broadcasters to obtain credit. Markets cannot operate efficiently without credit, and the enforceability of credit contracts.

The Court of Appeals did not apply any such reasoning. It simply considered the regulation, the FCC's history of interpretation of that regulation, and the precedent regarding review of agency decisions.

The FCC argued that it must as a matter of policy accommodate state court decisions. The Court of Appeals acknowledged that the FCC "may see itself in an awkward position", but, it failed to adequately explain it deviation from the policy of not permitting reversionary interests in broadcast licenses.

It wrote in conclusion that "We think the FCC has inadequately explained why these related policies do not apply and failed to reconcile them with its competing policy of accommodating state court decisions. We therefore vacate and remand."

This case is Kidd Communications, appellant, v. FCC, appellee, Paradise Broadcasting, Inc., intervenor, U.S. Court of Appeals for the District of Columbia, No. 04-1274, an appeal from a final order of the FCC. Judge Silberman wrote the opinion of the Court of Appeals, in which Judges Garland and Williams joined.

FCC CALEA Order Challenged

10/25. The Center for Democracy and Technology (CDT), Sun Microsystems, and others, filed a petition for review [PDF] of the Federal Communications Commission's (FCC) CALEA order, announced in August.

This petition challenges the order portion of the FCC Order and Further Notice of Proposed Rule Making that provides that facilities based broadband service providers and interconnected VOIP providers are subject to requirements under the 1994 Communications Assistance for Law Enforcement Act (CALEA).

The FCC adopted, but did not release, this item at its August 5, 2005, meeting. See, story titled "FCC Amends CALEA Statute" in TLJ Daily E-Mail Alert No. 1,191, August 9, 2005. The FCC released the text [59 pages in PDF] of this item on September 23, 2005. It is FCC 05-153 in ET Docket No. 04-295 and RM-10865.

The FCC based its conclusion on two separate grounds. First, it concluded that the definition of "telecommunications carrier" in CALEA is different and much broader than the definition of that term in the Communications Act, and can encompass providers of services that are not classified as telecommunications services under the Communications Act. Second, it asserted that the services covered by the order replace a substantial portion of conventional telecommunications services.

There is a series of articles in TLJ Daily E-Mail Alert 960, August 17, 2004, which offer the legal analysis that neither of these two legal arguments is tenable.

The petitioners in this petition are the CDT, Sun Microsystems,, COMPTEL, Electronic Privacy Information Center (EPIC), American Library Association (ALA), and Electronic Frontier Foundation (EFF).

The petition is a brief document that initiates the proceeding. The Court of Appeals has not yet set the briefing schedule.

This petition states merely that "Petitioners seek relief from the Order on the grounds that it exceeds the Commission's statutory authority and is arbitrary, capricious, unsupported by substantial evidence, and contrary to law. Petitioners request that this Court vacate the Order and the Final Rules adopted therein and grant such other relief as may be appropriate."

Background on the CALEA. The CALEA is an act, enacted by the Congress in 1994, that requires telecommunications carriers "shall ensure that its equipment, facilities, or services that provide a customer or subscriber with the ability to originate, terminate, or direct communications are capable of expeditiously isolating and enabling the government ... intercept, to the exclusion of any other communications, all wire and electronic communications carried by the carrier ..."

The CALEA provides that telecommunications carriers must design their equipment and networks to facilitate lawfully conducted wiretaps and other intercepts. Statutes other than the CALEA address what intercepts are lawful.

The CALEA was enacted to require that cell phone service providers make their networks subject to wiretaps sought by law enforcement agencies (LEAs), such as the Federal Bureau of Investigation (FBI), Drug Enforcement Administration (DEA), and state and local police.

The CALEA applies to "telecommunications carrier", and exempts "information services".

This presents a threshold problem for the FCC and FBI. Not only are broadband service providers and interconnected VOIP providers arguably "information services", but the Supreme Court held in its June 27, 2005, opinion [59 pages in PDF] in NCTA v. Brand X that the FCC declaratory ruling that cable modem service is an information service is a permissible reading of the statute..

Thus, the FCC now argues that broadband service providers and interconnected VOIP providers are "information services" for the purpose of being classified as Title I services, but are not "information services" for the purposes of the CALEA. Moreover, the FCC now argues that broadband service providers and interconnected VOIP providers are not telecommunications carriers for the purposes of regulatory classification, but are telecommunications carriers for the purposes of the CALEA.

§ 102(8) of the CALEA, which is codified at 47 U.S.C. § 1001(8), provides the following definition of "telecommunications carrier".

(8) The term ``telecommunications carrier''--
   (A) means a person or entity engaged in the transmission or switching of wire or electronic communications as a common carrier for hire; and
   (B) includes--
      (i) a person or entity engaged in providing commercial mobile service (as defined in section 332(d) of this title); or
      (ii) a person or entity engaged in providing wire or electronic communication switching or transmission service to the extent that the Commission finds that such service is a replacement for a substantial portion of the local telephone exchange service and that it is in the public interest to deem such a person or entity to be a telecommunications carrier for purposes of this chapter; but
   (C) does not include--
      (i) persons or entities insofar as they are engaged in providing information services; and
      (ii) any class or category of telecommunications carriers that the Commission exempts by rule after consultation with the Attorney General."

But then, § 102(8)(B)(ii) provides that a "telecommunications carrier" also "includes ... a person or entity engaged in providing wire or electronic communication switching or transmission service to the extent that the Commission finds that such service is a replacement for a substantial portion of the local telephone exchange service ...".

Comments by Petitioners. The just filed petition for review is only a two page pleading. The petitioners have not filed a brief with the Court of Appeals. However, several attorneys and representatives held a news conference on October 25, 2005.

John Morris, of the CDT, is the counsel of record. He stated the legal argument that the FCC's CALEA order is "contrary to the text of the CALEA statute". He added that the order is arbitrary and capricious because there was no demonstration in the rule making proceeding that law enforcement agencies have had a problem in conducting surveillance in the technologies covered by the order.

Susan Lander, an engineer at Sun Microsystems, said that Sun opposes the FCC order "because of its effect both on innovation, and its effect on security. Applying CALEA to VOIP is putting surveillance capabilities deep into the network stack, which is very dangerous". She added that "building this technology into internet protocol is an extremely poor idea technologically".

Jonathan Askin, counsel for, said the "the FCC has extended well beyond the reach of the CALEA statute". He accused the FCC of engaging in a "convoluted definitional shell game". Moreover, he asserted that "the FCC has reneged on the promise of the order". He argued that the FCC's CALEA order will stall deployment, drive service providers overseas, restrict innovation, and harm individual privacy.

Jason Oxman of Comptel stated that the FCC order "bends the CALEA to the breaking point".

The American Library Association's (ALA) representative stated that under the FCC's CALEA order, libraries would be "responsible for re-engineering their networks", would have to "purchase new equipment", and would have to "provide 24 hour support" to the FBI.

Jeff Pulver did not participate in this news conference. However, he wrote in his web site that "From the perspective of Internet innovators and application providers, our current grievance centers on the FCC's attempt to legislate from within an administrative agency. The FCC has essentially rewritten the CALEA statute and extended its scope well beyond intended telecom services and upon the Internet. The debate over the scope of CALEA was fought in Congress during the debate and passage of the CALEA statute, and it was determined that CALEA would not extend to the Internet. Frankly, it is inappropriate for a regulatory body to reinterpret the clear intent of Congress."

Pulver also advanced the policy argument that ""The FCC, under the guise of promoting national security, failed to consider the need to foster innovation and promote economic advancement. The FCC's overbroad misapplication of CALEA will have the unintended effect of imposing unnecessary and debilitating costs on the Internet and the emerging Internet-based communications industry without any real benefit to national security. The end result will be to drive innovation and economic growth abroad, which ultimately will harm America's national security and economic growth."

See also, CDT release [PDF].

This case is COMPTEL, et al. v. FCC and USA, U.S. Court of Appeals for the District of Columbia, App. Ct. No. 05-1408, a petition for review of a final order of the FCC.

More News

10/25. The American Business Coalition for Doha held a news conference to announce its formation. U.S. Trade Representative Rob Portman gave a speech in which he stated that a successful completion of the Doha round is essential to global economic growth. See also, U.S. Chamber of Commerce release and National Association of Manufacturers release.

10/25. Lori Richards, Director of the Securities and Exchange Commission's (SEC) Office of Compliance Inspections and Examinations gave a speech in Washington DC in which she discussed, among other topics, the use of information technology at the SEC. She stated that "we've been working internally to develop better technological systems to enhance our ability to share workpapers amongst the staff. When those new systems go into production, hopefully next year, we should be much better able to use records collected in one examination in other, subsequent examinations, thus further reducing any burden or inconvenience to firms."

People and Appointments

right10/25. Orson Swindle (at right) joined the Progress and Freedom Foundation (PFF) as a Distinguished Fellow. He will work on a new PFF project titled "Securing the Internet". Swindle was until recently a Commissioner on the Federal Trade Commission (FTC). See, PFF release.

10/25. President Bush nominated Aida Delgado-Colon to be a Judge of the U.S. District Court for the District of Puerto Rico. See, White House release.

10/25. Lynn Starr was named federal regulatory vice president at Qwest Communications. She has previously worked for Issue Dynamics (IDI), SBC, Ameritech, and Rep. Rick Boucher (D-VA). See, Qwest release.

Bush Picks Bernanke to Replace Greenspan

10/24. President Bush announced his intent to nominate Ben Barnanke to be the next Chairman of the Board of Governors of the Federal Reserve System. The current Chairman, Alan Greenspan, will conclude his term on January 31, 2006. If promptly confirmed by the Senate, Bernanke would hold office for a term of fourteen years beginning February 1, 2006. See, White House release and transcript of White House event.

Ben BernankeBernanke (at right) is currently Chairman of the President's Council of Economic Advisers. Although, he has only briefly held this position. He was previously a member of the Federal Reserve System's Board of Governors. See, story titled "Bush Picks Bernanke To Be Chairman of Council of Economic Advisors" in TLJ Daily E-Mail Alert No. 1,108, April 4, 2005.

Bernanke is also an economics professor at Princeton University. See, Bernanke's Princeton web page. He is also the co-author of a book titled Macroeconomics [Amazon].

Bernanke has spoken in recent years about technology related economic issues.

For example, on November 6, 2003 he gave a speech at Carnegie Mellon University in Pittsburgh, Pennsylvania, titled "The Jobless Recovery". He offered several explanations for why the economy was growing so fast, but the recovery in the labor market was so slow. One of his explanations was that corporate managers were finally figuring out how to put to good use the high tech equipment and software that they bought in the late 1990s. See, story titled "FRB Governor Says Info Tech Is One Reason for Jobless Recovery" in TLJ Daily E-Mail Alert No. 774, November 7, 2003.

He updated and elaborated on his views about technology and productivity in a speech titled "Productivity" in Little Rock, Arkansas, on January 19, 2005.

He said that "the pickup in productivity growth was, for the most part, the product of rapid technological progress and increased investment in new information and communication technologies (ICT)".

"First, technological advances allowed the ICT-producing sectors themselves to exhibit rapid productivity growth. For example, the development of more reliable semiconductor manufacturing equipment and faster wafer-inspection technologies increased the rate at which companies such as Intel were able to produce microprocessors. In part as a reaction to heightened competitive pressures, Intel also shortened its product cycle and increased the frequency of new chip releases, shifting its product mix toward more-powerful (and, consequently, higher-value) chips. Both the more-rapid pace of production and the higher average quality of output raised productivity at Intel and competing firms." (Parentheses in original.)

"Second, ICT advances also promoted productivity growth outside the ICT-producing sector, as firms in a wide range of industries expanded their investments in high-tech equipment and software and used the new technologies", said Bernanke. "For example, some large retailers, most notably Walmart, developed ICT-based tools to improve the management of their supply chains and to increase their responsiveness to changes in the level and mix of customer demand. Securities brokers and dealers achieved substantial productivity gains by automating their trading processes and their back-office operations."

He also discussed why the productivity growth in the U.S. exceeded that in other nations, even though the same ICT were available there.

See also, story titled "FRB's Bernanke Addresses Productivity Growth and Information Technology" in TLJ Daily E-Mail Alert No. 1,061, January 24, 2005.

Also, on March 30, 2004, FRB Governor  gave a speech titled "Trade and Jobs" at Duke University in Durham, North Carolina. See, story titled "FRB Governors Offer Economic Analyses of Offshoring and Free Trade" in TLJ Daily E-Mail Alert No. 877, April 15, 2004.

Bush introduced and praised Bernanke at the White House event on October 24. He also urged the Senate "to act promptly to confirm" Bernanke.

Bernanke stated that "If I am confirmed by the Senate, I will do everything in my power, in collaboration with my Fed colleagues, to help to ensure the continued prosperity and stability of the American economy." He added that "my first priority will be to maintain continuity with the policies and policy strategies established during the Greenspan years".

Alan GreenspanAlan Greenspan (at left) stood with Bush and Bernanke at this event, but did not speak.

Sen. Charles Grassley (R-IA), the Chairman of the Senate Finance Committee, stated in a release that "The experts vary on how much credit to give Alan Greenspan, but regardless, the economy has been very successful under his leadership. We've had two recessions under his tenure, but both were largely because of external events. One was a spike in oil prices following Iraq's invasion of Kuwait and the other was a downturn after 9/11. I hope Dr. Bernanke will lead as successfully as Alan Greenspan. Chairman Greenspan’s success was that people had confidence in him. He was kind of a Rock of Gibraltar for the American economy. Now, the most important thing for Ben Bernanke to do is to build on that confidence and that credibility. For example, he advocates openness at the Fed, as has Chairman Greenspan, and that builds confidence in our economic stewardship."

Export Control Chief Discusses iPods

10/24. David McCormick, the recently confirmed Under Secretary for Industry and Security at the Department of Commerce's Bureau of Industry and Security (BIS), gave a speech on regulation of trade, including trade in technology products.

David McCormickMcCormick (at left) raised the subject of Apple's iPods, and suggested that they are part of a technological revolution that is creating "pain" for law enforcement and intelligence agencies, and trade regulators. However, he did not say whether or not the BIS might regulate the export of iPods, or future iPod platform technologies.

The BIS's regulatory activity includes limiting and licensing the export of dual use items, including computers, communications equipment, encryption products, software, and technology workers.

McCormick asserted that the BIS is "running the best possible dual-use export control system in the world", and that the BIS "has also taken significant steps to make the export licensing system work better".

He said that one "fundamental force that is shaping our environment is the technological revolution. From smart bombs to iPods, technology is changing the way we wage war and live in peace. As a former technology industry executive, I find the most striking aspects of this revolution to be its pace and durability. Every time it appears that we have reached a technological ceiling, the revolution kicks into higher gear. As a result, today’s mantra is ``cheaper, faster, smaller, better´´ --  it's Moore's Law on steroids."

He continued that "Like all revolutions, the technology revolution brings both progress and pain. Today we enjoy capabilities undreamed of a generation ago. We have witnessed the death of distance, with the rapid decline in the costs of communication and transportation. At the same time, technological progress has led to new and deadly threats. The same Internet that allows us to make long distance phone calls for the same price as local ones also allows al-Qaida supporters to plot their crimes by email. The same cell phone from which we can download the day's breaking news can also be used by terrorists to coordinate their next assault on Iraq's emerging democracy."

He also discussed regulation of high performance computers. He said that "we hope to complete our work on a new metric for controlling exports of strategically significant computers, one that will adapt our controls to the dramatic and frequent changes in computer and microprocessor technology."

He also said that the BIS will continue "to review its country polices and regulations in light of changes in technology and the international market to determine whether further adjustments are warranted."

He also discussed the former Export Administration Act, which has lapsed. McCormick said that "our regulatory and enforcement authority flows from the law. I hope that with the leadership of some of our colleagues in Congress, we will soon see renewal of the Export Administration Act, thereby giving our system a firm statutory foundation."

McCormick is a former President of Ariba.

Congress Considers Bills to Split 9th Circuit

10/24. House and Senate subcommittees have scheduled actions on legislation to split the U.S. Court of Appeals (9thCir) into two circuits. The Senate Judiciary Committee's Subcommittee on Administrative Oversight and the Courts has scheduled a hearing for Wednesday, October 26 at 2:30 PM. At 3:00 PM on the same day, the House Judiciary Committee's (HJC) Subcommittee on Courts, the Internet, and Intellectual Property (CIIP) will meet to mark up HR 4093, the "Federal Judgeship and Administrative Efficiency Act of 2005".

See also, S 1301 and S 1296, both titled the "Ninth Circuit Judgeship and Reorganization Act of 2005", and S 1845, the "The Circuit Court of Appeals Restructuring and Modernization Act of 2005".

The 9th Circuit came up during a panel discussion over the Google Print for Libraries project on October 24. There are two cases that are most pertinent to this issue, one from the 9th Circuit, and one from the Southern District of New York. One panelist suggested that the 9th Circuit case might not be followed because that circuit has a reputation for being "borderline socialist". See, story in this issue titled "Google, Publishers and Authors Debate Google's Print for Libraries Program".

The leading proponents of bills to split the 9th Circuit tend to focus on the large number of judges on the 9th Circuit. Although, they also tend to come from states where some residents do not wish to remain in a circuit that is dominated by judges from California.

In addition to its ideological reputation, and large size, the 9th Circuit also has the highest reversal rate of all the circuits. The Supreme Court overturned two major tech related cases from the 9th Circuit last summer -- Brand X and Grokster.

Sometimes the Supreme Court reverses the 9th Circuit in blunt and reprimanding language, as for example, in its December 6, 2004 opinion [7 pages in PDF] in San Diego v. Roe, a First Amendment free speech case involving the government's ability to impose restrictions upon the speech of government employees. The Supreme Court wrote that 9th Circuit's reliance on a particular case "was seriously misplaced". It added that "We have little difficulty in concluding" that the 9th Circuit erred. The Court concluded that "this is not a close case". See, story titled "Supreme Court Reverses in San Diego v. Roe" in TLJ Daily E-Mail Alert No. 1,032, December 7, 2004.

The CIIP will mark up HR 4093. Title I of the bill is titled the "Federal Judgeship Act of 2005". It would create numerous new federal judgeships, both permanent and temporary, for appeals and district courts.

It would add two additional judges to the U.S. District Court for the Eastern District of Virginia, three for the Northern District of California (which includes Silicon Valley and San Francisco), four for the Eastern District of California, four for the Central District of California (which includes Los Angeles), and one for the Southern District of California (which includes San Diego). However, this title of the bill adds no judges to the 9th Circuit.

Title II of the bill is titled the "Enhanced Bankruptcy Judgeship Act of 2005".

Title III of the bill is titled the "Circuit Court of Appeals Restructuring and Modernization Act of 2005". It would split the 9th Circuit into two circuits. The new 12th Circuit would be comprised of the states of Alaska, Arizona, Idaho, Montana, Nevada, Oregon, Washington.

This title provides for "5 additional circuit judges for the new ninth circuit court of appeals, whose official duty station shall be in California."

If HR 4093 were to become law, it would not only split the 9th Circuit. It would also give the President an opportunity to substantially remake the California rump by appointing five new Court of Appeals judges, and ten new District Court judges for the districts within California.

There have long been legislative proposals to divide the 9th Circuit. None have yet become law.

VeriSign and ICANN Settle

10/24. VeriSign and the Internet Corporation for Assigned Names and Numbers (ICANN) announced that they have reached a settlement of all pending litigation and arbitration proceedings. See, VeriSign release, ICANN release, settlement agreement [6 pages in PDF], and Registry Agreement [24 pages in PDF]. See also, statement by the Association for Competitive Technology (ACT).

For more information on the dispute that gave rise to these proceedings, stories titled "ICANN Demands That VeriSign Cease Wildcard Feature" in TLJ Daily E-Mail Alert No. 753, October 6, 2003; "VeriSign Refuses to Suspend Deployment of Wildcard Service" in TLJ Daily E-Mail Alert No. 744, September 23, 2003; and "ICANN Asks VeriSign to Suspend Wildcard Service" in TLJ Daily E-Mail Alert No. 743, September 22, 2003.

See also, story titled "ICANN Moves to Dismiss Most of VeriSign's Wildcard Complaint" in TLJ Daily E-Mail Alert No. 871, April 7, 2004.

The proceedings involved are VeriSign, Inc. v. ICANN, U.S. District Court for the Central District of California, D.C. No. CV 04-1292 AHM, and the resulting appeal to the U.S. Court of Appeals for the 9th Circuit, App. Ct. No. 04-56761; VeriSign, Inc. v. ICANN, Los Angeles Superior Court, Sup. Ct. No. BC 320763; and ICANN v. VeriSign, Inc., International Chamber of Commerce, International Court of Arbitration, No. 13 568/JNK/EBS.

Google, Publishers and Authors Debate Google's Print for Libraries Program

10/24. The Copyright Society of the USA and the DC Bar Association's Patent Copyright and Trademark Section hosted a luncheon panel discussion titled "Google Print for Libraries: Fair or Foul?".  See, full story.

People and Appointments

10/24. Comcast Corporation named Susan Gonzales Corporate Senior Director of Government Affairs. She has been working as Comcast Cable's Regional Senior Director of Communications in Northern California. She will relocate to Washington DC. She will report to Kerry Knott, VP of Government Affairs. See, Comcast release.

More News

10/24. The Government Accountability Office (GAO) released a report [46 pages in PDF] titled "Electronic Disability Claims Processing: SSA Is Proceeding with Its Accelerated Systems Initiative but Needs to Address Operational Issues". The Social Security Administration (SSA) is attempting to develop an electronic disability claims processing capability, named "AeDib". This will be a paperless system in which medical images, files, and other documents will be stored in electronic folders, enabling the disability claims processing offices to electronically view, process, and share claims information. Sen. Chuck Grassley (R-IA), the Chairman of the Senate Finance Committee, requested this study. He commented that "The decision to fully implement the new system without end-to-end testing was a bold step that may ultimately prove successful. But unless SSA remains diligent, it runs the risk of a costly and time-consuming process of fixing problems that could have been avoided in the first place had it conducted end-to-end testing."

FCC Announces Agenda for October 28 Meeting

10/21. The Federal Communications Commission (FCC) released the agenda [PDF] for its event titled "Open Meeting". The FCC will consider two orders pertaining to the mergers of Verizon and MCI WorldCom, and SBC and AT&T.

The FCC will consider a Memorandum Opinion and Order (MOO) regarding the application to transfer licenses associated with the merger of MCI WorldCom and Verizon. This proceeding is WC Docket No. 05-75.

The FCC will consider another MOO regarding the application to transfer licenses associated with the merger of SBC Communications and AT&T. This proceeding is WC Docket No. 05-65.

The FCC will also consider a First Report and Order and Further Notice of Proposed Rulemaking regarding its  Emergency Alert System rules. This proceeding is EB Docket No. 04-296).

The FCC will also consider a Report and Order to adopt rules for satellite carriage of significantly viewed television stations pursuant to the Satellite Home Viewer Extension and Reauthorization Act (SHVERA). This proceeding is MB Docket No. 05-49.

This event is scheduled for 9:30 AM on Friday, October 28, 2005 in the FCC's Commission Meeting Room, Room TW-C305, 445 12th Street, SW. The event will be webcast by the FCC. The FCC does not always take up all of the items on its agenda. The FCC does not always start its monthly meetings at the scheduled time. The FCC usually does not release at its meetings copies of the items that its adopts at its meetings.

Bush Picks Paul McNulty to Be Deputy Attorney General

10/21. President Bush announced his intent to nominate Paul McNulty to be the Deputy Attorney General. This is the number two position at the Department of Justice (DOJ). He is currently the U.S. Attorney for the Eastern District of Virginia. See, White House release.

President Bush nominated McNulty for his current USA position on August 1, 2001. He briefly was a Deputy Associate Attorney General early in the Bush administration. Previously, he was Chief Counsel and Director of Legislative Operations for former House Majority Leader Dick Armey (R-TX). Before that, he held several positions at the House Judiciary Committee, including spokesman and Chief Counsel to the Subcommittee on Crime. Before that, he worked in the DOJ during the administration of the elder Bush. He has also worked at the law firm of Shaw Pittman (which is now Pillsbury Winthrop Shaw Pittman).

President Bush also announced his intent to designate McNulty the acting DAG.

President Bush failed to obtain Senate consent for his previous nominee for DAG, Timothy Flanigan. Bush announced his intent to nominate Flanigan on May 24, 2005. See, "People and Appointments" in TLJ Dailly E-Mail Alert No. 1,142, May 25, 2005. The Senate Judiciary Committee held a hearing on his nomination in July. Bush announced the withdrawal of the nomination of Flanigan on October 7. See, White House release.

Bush is also having trouble obtaining Senate consent for his nominee for Assistant Attorney General in charge of the Criminal Division, Alice Fisher. Bush gave her a recess appointment during the August Congressional recess. President Bush first nominated Fisher back on March 29, 2005. See also, stories titled "Bush to Nominate Alice Fisher to Head DOJ's Criminal Division" TLJ Daily E-Mail Alert No. 1,107, April 1, 2005; and "Recess Appointments in the August Break" in TLJ Daily E-Mail Alert No. 1,192, August 10, 2005.

People and Appointments

10/21. President Bush nominated George Foresman to be Under Secretary for Preparedness at the Department of Homeland Security (DHS). If confirmed, he will replace Frank Libutti, who has resigned. This position was previously known as Under Secretary for Information Analysis and Infrastructure Protection. Foresman is Assistant to the Governor for Commonwealth Preparedness, in the state of Virginia. See, White House release and release.

10/21. Michael Desmond was named Tax Legislative Counsel in the Department of the Treasury's Office of Tax Policy (OTP). Hal Hicks was named International Tax Counsel. Robert Dilworth was named Senior Advisor. See, Treasury release.

Go to News from October 16-20, 2005.