TLJ News from March 16-20, 2006

FBI Loses More Computers

3/20. The Government Accountability Office (GAO) released a report [PDF] titled "Federal Bureau of Investigation: Weak Controls over Trilogy Project Led to Payment of Questionable Contractor Costs and Missing Assets".

This is another is a series of studies and testimonies that report that the Department of Justice's (DOJ) Federal Bureau of Investigation (FBI) has outdated information technology (IT), that it is incapable of managing its adoption of new technology, that it is wasting taxpayers' money in its attempts, and that much equipment and any data stored therein is lost or stolen.

This latest report focuses on FBI mismanagement, waste of taxpayer money, and loss of sensitive equipment.

The report finds that the FBI "was unable to locate over 1,200" pieces of IT equipment purchased as part of its Trilogy project. The report states that these lost items are valued at approximately $7.6 Million, and include items such as "computer desktops, laptops, printers, and servers".

See, full story.

CIIP Subcommittee to Hold Hearings on Revisions to Patent Law

3/20. Rep. Lamar Smith (R-TX), Chairman of the House Judiciary Committee' (HJC) Subcommittee on Courts, the Internet and Intellectual Property (CIIP) announced that the CIIP Subcommittee will hold another series of hearings on patent law and efforts to revise patent law, beginning on April 5, 2006. See, release.

Rep. Smith is the sponsor of HR 2795, the "Patent Reform Act of 2005". There are several versions of this bill. However, none has obtained broad support among affected groups.

The first hearing is titled "Patent Quality Enhancement in the Information-Based Economy". Rep. Smith's announcement states that this hearing "will address the impact of questionable patents and potential issues at the Patent & Trade Mark Office." It will address patent reexamination and the creation of a post grant opposition process. It will also address expansion of existing provisions regarding third party submission of prior art to patent examiners.

The second hearing is titled "Patent Harmonization". It will address Rep. Smith's proposals to change from a first to invent system to a first inventor to file system, and to expand the requirement that most patents be published after 18 months. No date has been set for this hearing.

The third hearing is titled "Patent Trolls: Fact or Fiction?" Rep. Smith's announcement states that this hearing will address "What is a patent troll? How many unreasonable suits do they initiate? Are they harming the economy or just enforcing their property rights?" No date has been set for this hearing.

The fourth hearing is titled "Review of the Patent Reform Studies Conducted by the National Academies and the Federal Trade Commission". No date has been set for this hearing.

The National Academies' Board on Science, Technology, and Economic Policy (STEP) issued a report in 2003 titled "A Patent System for the 21st Century".

On October 28, 2003, the FTC released a report titled "To Promote Innovation: The Proper Balance of Competition and Patent Law and Policy". See, Executive Summary [18 pages in PDF] and Report [2.28 MB in PDF]. See also, story titled "FTC Releases Report on Competition and Patent Law" in TLJ Daily E-Mail Alert No. 768, October 29, 2003.

This fourth hearing will address first to file, patent publication, post grant opposition, willful infringement, inequitable conduct, and pre-grant submission of prior art by third parties.

More News

3/20. Deputy U.S. Trade Representative Susan Schwab gave a speech [PDF] at Thunderbird University in Glendale, Arizona. She reviewed the status of ongoing trade negotiations, advocated free trade, and rebutted the arguments for "protectionism", "economic isolationism", and "xenophobia".

3/20. The Federal Communications Commission (FCC) issued a notice [PDF] announcing that its Wireless Telecommunications Bureau (WTB) and the Consumer and Governmental Affairs Bureau will hold a public demonstration on March 30 of changes to be made to Tower Construction Notification System (TCNS).

3/20. The Progress and Freedom Foundation (PFF) published a paper [30 pages in PDF] titled "Fact and Fiction in the Debate Over Video Game Regulation". The author is Adam Thierer. He argues that legislative proposals to regulate video games "are being driven by a variety of myths and hypothetical fears that should not serve as the basis of government intervention and content controls. Self-regulation is working. The industry has created a comprehensive ratings and labeling system that offers parents and consumers extensive information about game content. While the enforcement of this scheme at the point-of-sale isn’t perfect, it is improving and certainly represents a less-restrictive means of addressing this issue than would a convoluted and likely unconstitutional federal regulatory regime." The bill specifically criticizes S  2126, the "Family Entertainment Protection Act", sponsored by Sen. Hillary Clinton (D-NY), Sen. Joe Lieberman (D-CT), and Sen. Evan Bayh (D-IN).

3/20. The Department of State (DOS) renewed the Charter of the International Telecommunication Advisory Committee (ITAC). See, notice in the Federal Register, March 20, 2006, Vol. 71, No. 53, at Page 14049.

DUSTR Bhatia Discusses Trade Talks with Malaysia

3/17. Deputy U.S. Trade Representative Karan Bhatia gave a speech in Kuala Lumpur, Malaysia.

Bhatia stated that "Right now, electronic goods and items account for roughly three quarters of Malaysia’s exports to the United States. It’s a good trade; it’s a healthy trade, it’s a growing trade -- but it is focused in one area. We would like to see that relationship broadened out to encompass other areas. Particularly, we are interested in seeing potential new growth in the area of high technology, high-tech items that we believe Malaysia can compete effectively in in the global market."

He commented that some U.S. companies are already "strong investors in the Malaysian economy", including Intel, Motorola, Discovery Communications, and Oracle.

He said that "One of the features of our Free Trade Agreement is that it not only reduces tariffs and non-tariff barriers, but it also does things like establish regimes for investment, encouraging a stable climate that would allow greater investment. It establishes rules governing intellectual property rights, and in areas like government procurement, and market access as well. All this builds confidence on the part of U.S. companies to grow their investments in the Malaysian economy."

Copps Announces Staff Changes

3/17. Jordan Goldstein, Federal Communications Commission (FCC) Commissioner Michael Copps' Senior Legal Advisor, will leave. Copps will promote Jessica Rosenworcel to this position. In addition, Copps named Bruce Gottlieb to be a new Legal Advisor.

Gottlieb works at the law firm of Harris Wiltshire & Grannis (HWG). Before that, he worked for the law firm then named Wilmer, Cutler, Pickering, Hale & Dorr (now Wilmer Hale). He also clerked for Judge David Tatel of the U.S. Court of Appeals (DCCir). Also, before law school, he was a staff writer at Slate Magazine. See, release [PDF].

Gottlieb has represented leading internet and technology companies at HWG. He represented Yahoo. See, amicus brief [PDF] in eBay v. MercExchange. The Supreme Court will hear oral argument on March 29. This is a patent case involving the availability of injunctive relief.

He represented Cisco. See, August 2005 comment [PDF] filed with the FCC in its proceeding imposing E911 mandates on VOIP service providers.

He represented the High Tech Broadband Coalition, VON Coalition, and in Minnesota PUC v. FCC. See, intervenors' brief [51 pages in PDF].

He represented the Net Coalition (see, notice of ex parte FCC communication regarding CALEA and VOIP), and Dell (see, notice of ex parte FCC communications regarding unlicensed use of broadcast TV spectrum white space).

He has also represented communications companies, other than RBOCs. He represented Broadwing Communications and Savvis Communications. See, opposition [63 pages in PDF] to the merger of SBC and AT&T filed with the FCC in May, 2005. He represented General Communications, Inc., an Alaska telecommunications company. See, comment [PDF] filed with FCC regarding universal service.

He also represented the U.S. Chamber of Commerce. See, amicus brief in American Trucking Associations v. Michigan PSC).

FCC Creates Public Safety and Homeland Security Bureau

3/17. The Federal Communications Commission (FCC) adopted, but did not release, an order establishing within the FCC a Public Safety and Homeland Security Bureau. This item is FCC 06-35.

The FCC issued a short release [PDF] that describes this item. This release states that there will be three divisions in this bureau, titled "Policy Division", "Public Communications Outreach & Operations Division" and the "Communications Systems Analysis Division".

This release states that the issues that will be handled by the new bureau will include "public safety communications". It also categorizes "Communications Assistance for Law Enforcement Act (CALEA)" as a subset of "public safety communications".

All four FCC Commissioners wrote separate statements praising the formation of the new bureau. None wrote about FCC activities and operations related to the Communications Assistance for Law Enforcement Act (CALEA). See, Martin statement [PDF], Copps statement [PDF], Adelstein statement [PDF], and Tate statement [PDF]

The U.S. Court of Appeals (DCCir) will hear oral argument on May 5, 2006, in ACE v. FCC, a challenge to the FCC's order that provides that facilities based broadband service providers and interconnected VOIP providers are subject to requirements under the 1994 CALEA.

The FCC adopted this order 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. See also, story titled "FCC CALEA Order Challenged" in TLJ Daily E-Mail Alert No. 1,240, Wednesday, October 26, 2005.

See also, ACE brief [71 pages in PDF] and FCC brief [52 pages in PDF]. This case is American Council on Education, et al. v. FCC and USA, U.S. Court of Appeals for the District of Columbia, App. Ct. Nos. 05-1404, 1408, 1438, 1451 and 1453, Judges Sentelle, Brown and Edwards presiding.

FCC Adopts Further NPRM Re Children's Programming Obligations

3/17. The Federal Communications Commission (FCC) adopted, but did not release, an item titled "Second Further Notice of Proposed Rulemaking" regarding the obligation of television licensees to provide educational programming for children and the requirement that television licensees protect children from excessive and inappropriate commercial messages.

The FCC issued a short release [PDF] that describes this item. It states that the FCC "seeks public comment on a joint proposal filed by several broadcast and programming entities and children's television advocates regarding previously adopted requirements of television licensees to provide educational programming for children."

For example, it asks whether the FCC should modify the website rule contained within the September 9, 2004, Report and Order and Further Notice of Proposed Rulemaking. See, story titled "FCC Adopts Report and Order Re Children's Programming Obligations of DTV Broadcasters" in TLJ Daily E-Mail Alert No. 975, September 13, 2004.

This proceeding is titled "In the Matter of Children's Television Obligations Of Digital Television Broadcasters". This item is FCC 06-33 in MM Docket No. 00-167.

FCC Adopts NPRM Re Public Safety Communications in the 700 MHz Band

3/17. The Federal Communications Commission (FCC) adopted, but did not release, an item titled "Eighth Notice of Proposed Rulemaking" regarding public safety communications in the 764-776 MHz and 794-806 MHz bands.

The FCC issued a short release [PDF] that describes this item. It states that the FCC "seeks comment on whether certain channels within the 24 MHz of spectrum in the 700 MHz band allocated for public safety use should be modified to accommodate broadband communications."

The release elaborates that "The 700 MHz public safety spectrum is currently being used by television broadcasters during the digital television (DTV) transition but will become available for use by public safety agencies by February 18, 2009, when the DTV transition is completed."

The release states that this NPRM "seeks comment on three specific proposals to modify the 700 MHz band plan submitted by the National Public Safety Telecommunications Council; Motorola, Inc.; and Lucent Technologies, Inc. All three plans propose combining the general use, interoperability, and reserve wideband segments in order to permit broadband communications. The proposals also support the creation of guard bands to protect narrowband voice operations. Today’s Notice also invites additional proposals and seeks comment on the FCC’s tentative conclusion not to alter the narrowband portions of the 700 MHz public safety band."

See also, statement [PDF] by Chairman Kevin Martin. This item is FCC 06-34 in WT Docket No. 96-86.

People and Appointments

3/17. Rep. Sherwood Boehlert (R-NY), the Chairman of the House Science Committee, announced that he will not seek re-election in November. At the end of this Congress he will have been Chairman for six years. Republicans serve under six year term limits.

3/17. Donald Hoerl was named acting Regional Director of the Securities and Exchange Commission's (SEC) Central Regional Office, which covers the states of Colorado, North Dakota, South Dakota, Utah, Wyoming and New Mexico. He has been the Associate Regional Director for Enforcement in that office since 1997. See, SEC release.

More News

3/17. The Supreme Court issued an order in eBay v. MercExchange, Sup. Ct. No. 05-130. It wrote that "The motions of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument are granted." See, March 17, 2006, Order List [PDF]. The Supreme Court will hear oral argument on March 29, 2009. See, Supreme Court calendar [PDF], Supreme Court docket, March 16, 2004, opinion [31 pages in PDF] of the Court of Appeals (FedCir), and story titled "Supreme Court to Consider Availability of Injunctive Relief in Patent Cases" in TLJ Daily E-Mail Alert No. 1,261, November 29, 2005.

3/17. The U.S. Court of Appeals (NDCal) issued an order [21 pages in PDF] in Gonzales v. Google, that grants in part, and denies in part, the Department of Justice's (DOJ) request that Google "compile and produce a massive amount of information from Google's search index", and that Google "turn over a significant number of search queries entered by Google users". The DOJ subpoenaed Google to obtain evidence for an action pending in the U.S. District Court (EDPa), ACLU v. Reno, pertaining to the constitutionality of the Child Online Protection Act (COPA) which is codified at 47 U.S.C. § 231. The present action is Alberto Gonzales v. Google, Inc., U.S. District Court for the Northern District of California, San Jose Division, D.C. No. CV 06-8006MISC JW, Judge James Ware presiding.

Bush Signs Anti-Counterfeiting Bill

3/16. President Bush signed HR 32, the "Stop Counterfeiting in Manufactured Goods Act". See, White House release and bill summary.

For a summary of the bill, and how it may affect internet based businesses, see story titled "Senate Approves Bill to Criminalize Trafficking in Counterfeit Marks" in TLJ Daily E-Mail Alert No. 1,315, February 22, 2006. See also, story titled "House Approves Stop Counterfeiting in Manufactured Goods Act" in TLJ Daily E-Mail Alert No. 1,325, March 8, 2006.

President Bush stated at a bill signing ceremony at the White House that "Counterfeiting costs our country hundreds of billion dollars a year. It has got a lot of harmful effects in our economy. Counterfeiting hurts businesses. They lose the right to profit from their innovation. Counterfeiting hurts workers, because counterfeiting undercuts honest competition, rewards illegal competitors. Counterfeiting hurts our -- counterfeiting hurts consumers, as fake products expose our people to serious health and safety risks. Counterfeiting hurts the government. We lose out on tax revenue. We have to use our resources for law -- of law enforcement to stop counterfeiting. Counterfeiting hurts national security, as terrorist networks use counterfeit sales to sometimes finance their operations." See, transcript.

See also, U.S. Chamber of Commerce release praising the bill.

Retransmission Consent Rules Debated

3/16. Echostar, the American Cable Association (ACA), the Organization for the Promotion and Advancement of Small Telecommunications Companies (OPASTCO) and others wrote a letter [3 pages in PDF] to Senators and Representatives on March 9, 2006, regarding retransmission consent.

They wrote that "outdated retransmission consent rules are making it difficult for distributors, like us, to provide consumers with high-quality advanced services at reasonable prices. Broadcasters’ escalating retransmission consent demands are resulting in higher costs, fewer choices for consumers, and required carriage of objectionable programming content."

They added that "Retransmission consent is not a marketplace negotiation between willing parties bargaining at arms-length. Exclusivity rules prevent video providers from negotiating with anyone but the local broadcaster for its network content. This lack of marketplace competition allows broadcasters to extract unreasonable fees for their programming, resulting in higher consumer bills.

The National Association of Broadcasters (NAB) and four television networks responded in a letter [5 pages in PDF] of March 16.

The wrote that "Congress properly decided in 1992 that broadcasters should be able to negotiate freely with their cable rivals for fair compensation for cable’s carriage of their signals. In the decade following enactment of this legislation, cable systems were largely protected against the discipline of marketplace negotiations because of their monopolistic power. Now that satellite has emerged to create a MVPD duopoly and other potential competitors are appearing on the horizon, certain elements of the cable and satellite industries seek to be protected from the marketplace by efforts like their March 9 letter. Congress should not tumble to this thinly disguised effort to have the government put its thumb on cable’s side of the scale."

More Capitol Hill News

3/16. The House Financial Services Committee completed its markup of HR 3997, the "Financial Data Protection Act", which began on March 15, 2006. The HFSC amended and approved the bill. The final vote was 48-17. See, HR 3997 IH [39 pages in PDF], the bill as introduced on October 6, 2005, by Rep. Steven LaTourette (R-OH). The Committee approved by voice vote an amendment in the nature of a substitute [63 pages in PDF] offered by Rep. Michael Castle (R-DE), as amended by five amendments, each of which was also approved by voice vote. The Committee approved an amendment [8 pages in PDF] offered by Rep. LaTourette, an amendment [1 page in PDF] offered by Rep. Ruben Hinojosa (D-TX), an amendment [2 pages in PDF] offered by Rep. Barbara Lee (D-CA), an amendment [1 page in PDF] offered by Rep. Joe Baca (D-CA), and an amendment [9 pages in PDF] offered by Rep. Ed Royce (R-CA). The Committee also considered, but did not approve, numerous other offered amendments.

3/16. The Senate Commerce Committee postponed its mark up of S 2389, the "Protecting Consumer Phone Records Act". It had been on the agenda for the meeting of March 16, 2006. The SCC issued a release that states that Sen. Ted Stevens (R-AK) and Sen. Daniel Inouye (D-HI) "were concerned that because of a series of stacked votes on the Senate floor, it would be too difficult for Committee Members to fully debate and vote on amendments that a number of Committee Members, both Republicans and Democrats, intended to offer to the phone records bill." The Senate next meets on Monday, March 28.

3/16. The House adjourned until March 28, 2006, without having taken up HR 1606, the "Online Freedom of Speech Act". This bill had been on the House schedule for the week of March 13-17. Also, on March 8, 2006, Rep. Tom Allen (R-ME) and Rep. Charles Bass (R-NH) introduced HR 4900, the "Internet Free Speech Protection Act of 2006". This bill is similar, but not identical, to a proposed bill [PDF] released by the Center for Democracy and Technology (CDT) on March 2, 2006. See also, CDT summary [PDF] and story titled "CDT Releases Proposed Bill to Limit the FEC's Authority to Regulate Online Speech" in TLJ Daily E-Mail Alert No. 1,327, March 10, 2006. And see, CDT's March 15 comparison of HR 1606 and HR 4900. HR 4900 was referred to the House Administration Committee. Rep. Howard Berman (D-CA) joined as a cosponsor on March 14.

3/16. Rep. Greg Walden (R-OR) introduced HR 5008, a bill to authorize the Under Secretary of Technology at the Department of Commerce to award grants to establish up to eight Nanoscience to Commercialization Institutes to develop commercial applications for nanotechnology. The bill was referred to both the House Commerce Committee and the House Science Committee.

3/16. Rep. Melissa Bean (D-IL) introduced HR 4982, a bill to create an Office of Internet Safety and Public Awareness at the Federal Trade Commission (FTC). The bill was referred to the House Commerce Committee.

3/16. Rep. Chris Shays (R-CT) and six Democrats introduced HR 5000, a bill to amend the provisions of the Intelligence Reform and Terrorism Prevention Act of 2004 pertaining to the creation of the Privacy and Civil Liberties Oversight Board.

People and Appointments

3/16. The Senate Commerce Committee (SCC) approved the nomination of Robert McDowell to be a member of the Federal Communications Commission (FCC) by a voice vote. See, SCC release.

3/16. The Senate Commerce Committee (SCC) approved the nomination of Robert Cresanti to be Undersecretary of Commerce for Technology by a voice vote. See, SCC release.

3/16. The Senate confirmed Jack Zouhary to be a Judge of the U.S. District Court for the Northern District of Ohio by a vote of 96-0. See, Roll Call No. 75. See also, Congressional Record, March 16, 2006, at Pages S2293-4

3/16. The Senate confirmed Steve Larson to be a Judge of the U.S. District Court for the Central District of California. See, Congressional Record, March 16, 2006, at Pages S2293-4.

Go to News from March 11-15, 2006.