TLJ News from June 21-25, 2006

Bush Issues Executive Order on Takings of Property by Federal Government

6/23. President Bush issued an executive order titled "Protecting the Property Rights of the American People". While the order does not reference the opinion of the Supreme Court in Kelo v. New London, it addresses issues raise by that case.

The order states that "It is the policy of the United States to protect the rights of Americans to their private property, including by limiting the taking of private property by the Federal Government to situations in which the taking is for public use, with just compensation, and for the purpose of benefiting the general public and not merely for the purpose of advancing the economic interest of private parties to be given ownership or use of the property taken."

The order does not affect takings by state and local governments. It is also replete with exceptions.

The order states that it exempts "a taking ... for the purpose of ... projects designated for public, common carrier, public transportation, or public utility use, including those for which a fee is assessed, that serve the general public and are subject to regulation by a governmental entity". It also exempts a taking for the purpose of "conveying the property to a nongovernmental entity, such as a telecommunications or transportation common carrier, that makes the property available for use by the general public as of right".

It also exempts a taking for the purpose of "military, law enforcement, public safety, ... or public health emergencies".

The order is otherwise silent on takings of intellectual property rights, including drug patents, other patents, copyrights, and trademarks.

VP Cheney Discusses Electronic Surveillance in Campaign Speech

6/23. Vice President Richard Cheney gave a speech in Chicago, Illinois at a campaign event for Dave Mcsweeney, who is challenging the incumbent, Rep. Melissa Bean (D-IL), to represent the Illinois 8th District.

This District includes Schaumburg, which is home to Motorola. This District was represented by former Rep. Phil Crane (R-IL) for over 30 years. Before his election in 1969, the seat was held by former Rep. Donald Rumsfeld (R-IL). Crane lost in 2004, in part because of his lack of attention to politics. Republicans want to take back the seat.

Cheney said that "There is still hard work ahead in the global war on terror. ... We've reached the point where a number of well known Democrats, including their most recent presidential nominee, talk about setting a firm deadline for withdrawal."

He elaborated on the positions of prominent Democrats on terrorism related issues. While he did not mention any of Rep. Bean's positions, he perhaps intended to associate her with Democrats such as Sen. Kerry, Howard Dean, and Sen. Harry Reid, whom he did mention in the speech.

VP Cheney argued that "it's vital we have strong partners like Dave McSweeney in the Congress of the United States to help us".

Rep. Bean has supported the Bush administration in key terrorism related votes in the House. For example, she was one of only 44 Democrats who voted for HR 3199, the "USA PATRIOT Improvement and Reauthorization Act of 2005". It was approved by a vote of 251-174 on December 14, 2005. See, Roll Call No. 627. She was one of 66 Democrats who voted for S 2271, the "USA PATRIOT Act Additional Reauthorizing Amendments Act of 2006". It was approved by a vote of 280-138 on March 7, 2006. See, Roll Call No. 20.

She voted on December 19, 2005, for HR 2863, the FY 2006 Department of Defense appropriations bill. She voted on April 26, 2006, for HR 5020, to authorize appropriations for fiscal year 2007 for intelligence and intelligence-related activities.

That is, Rep. Bean has supported Bush's and Cheney's positions on a number of key votes.

One of the issues that Cheney discussed at length was electronic surveillance. He first discussed the electronic intercepts program disclosed by the New York Times in December of 2006. He said that this is "the terrorist surveillance program some of you have heard recently referred to as the domestic surveillance program by the press corps. It is not domestic surveillance. This is a program that's targeted upon communications one end of which is outside the United States, and one end of which, we believe, is affiliated with al Qaeda. It is a good program."

He continued that "There's another program that has been in the papers this morning that deals with finances, that is referred to -- or I will refer to it as a the terrorist finance tracking program, that allows us to track the movements of funds internationally that are al Qaeda-related and al Qaeda-affiliated."

Cheney said, "Now, the President has been criticized. We've been criticized, the administration on the terrorist surveillance program -- may also be criticized on the financial program by our opponents. Russ Feingold, the senator from Wisconsin, has called for the censure of the President over the terrorist surveillance program. The fact of the matter is that these are good, solid sound programs. They are conducted in accordance with the laws of the land. They are -- they're carried in a manner that is fully consistent with the constitutional authority of the President of the United States. They are absolutely essential in terms of protecting us against attacks. And I am personally persuaded that they are absolutely -- have been absolutely essential in the fact that we have not been hit again since 9/11."

"The thing that I find most disturbing about these stories -- even though these programs have been briefed to the Congress, and they are conducted in a way to guarantee and safeguard the civil liberties of the American people, what I find most disturbing about these stories is the fact that some of the news media take it upon themselves to disclose vital national security programs, thereby making it more difficult for us to prevent future attacks against the American people. That offends me."

Cheney did not reference the National Security Agency's (NSA) program involving the collection of phone records, disclosed by USA Today in early May. TLJ spoke with a member of the staff of Rep. Bean who stated that she has not spoken or taken a position on either the program disclosed by USA Today in May, or the program disclosed by the New York Times last December.

Back on June 7, 2006, the Republican controlled House Rules Committee refused Rep. Bean's request to make in order an amendment to HR 5252, the "Communications Opportunity, Promotion, and Enhancement Act of 2006" (COPE Act), that would have created a new Office of Internet Safety and Public Awareness at the Federal Trade Commission (FTC). It would have authorized appropriations for grants to qualifying entities to promote internet safety, and to launch a national public awareness campaign. This amendment is substantially identical to the stand alone bill that Rep. Bean introduced on March 16, 2006, HR 4982, the "Safeguarding America's Families by Enhancing and Reorganizing New and Efficient Technologies Act of 2006", or "SAFER NET Act".

Approval of the amendment might have bolstered Rep. Bean's support among Republican leaning suburban voters in the Illinois 8th District.

The House approved HR 5252 on June 8, 2006. See, story titled "Rules Committee Adopts Rule for Consideration of COPE Act" in TLJ Daily E-Mail Alert No. 1,387, June 8, 2006, and story titled "House Approves COPE Act, Without Network Neutrality Amendment" in TLJ Daily E-Mail Alert No. 1,388, June 9, 2006.

Rep. Bean is also the sponsor of HR 1069, the "Notification of Risk to Personal Data Act", and HR 3140, the "Consumer Data Security and Notification Act of 2005".

People and Appointments

6/23. Norman Mineta, the Secretary of Transportation, announced his resignation, effective July 7, 2006. Sen. Ted Stevens (R-AK), the Chairman of the Senate Commerce Committee, which has jurisdiction over transportation issues, praised Mineta in a release, and added that "I am assured that this retirement is an action sought by the Secretary himself." See also, statement by President Bush.

6/23. President Bush named John Emling as Special Assistant to the President for Legislative Affairs. He was previously Deputy Assistant Secretary for Legislative Affairs for Tax and Budget at the Department of the Treasury. See, White House release.

6/23. President Bush named Julie Goon as Special Assistant to the President for Economic Policy. She previously worked at the Department of Health and Human Services as Senior Advisor to the Secretary, and as Director of Medicare Outreach at the Centers for Medicare and Medicaid Services and of Health and Human Services. See, White House release.

6/23. President Bush named Hunter Moorhead as Special Assistant to the President for Agriculture, Trade and Food Assistance. He previously worked for the Senate Appropriations Committee. See, White House release.

6/23. President Bush named John Smith as Associate Counsel to the President. He was previously an attorney at the law firm of Covington & Burling. Before that, he clerked for Sam Alito when he was a Judge of the U.S. Court of Appeals (3rdCir). See, White House release.

6/23. Claire Reade was named Chief Counsel for China Trade Enforcement at the Office of the U.S. Trade Representative (USTR). She is an attorney in the Washington DC office of the law firm of Arnold & Porter. See, USTR release and A&P release.

6/23. The Office of the U.S. Trade Representative (USTR) created of a new intellectual property office, to be headed by Assistant U.S. Trade Representative Victoria Espinel. She has worked at the USTR since 2001. She previously worked for the law firms of Covington & Burling and Sidley Austin. See, USTR release.

6/23. Stanford McCoy was named Chief Negotiator for Intellectual Property Enforcement Office of the U.S. Trade Representative (USTR). The USTR stated in a release that he "will lead the office’s intellectual property enforcement efforts, with a special focus on priority countries, including China and Russia". He was previously Associate General Counsel at the USTR. Before going to work at the USTR, he worked at the law firm of Covington & Burling.

More News

6/23. The U.S. Patent and Trademark Office (USPTO) published a notice in the Federal Register requesting comments on its "modified plan to remove the paper search collection of marks that include design elements from the USPTO's Trademark Search Facility and replace them with electronic documents. The USPTO has determined that the paper search collection is no longer necessary due to the availability and reliability of the USPTO's electronic search system." Comments are due by August 22, 2006. See, Federal Register, June 23, 2006, Vol. 71, No. 121, at Pages 36065-36068.

6/23. The Federal Trade Commission (FTC) published a notice in the Federal Register that announces, recites, explains, and sets the effective date (June 23, 2006) for, changes to its Hart Scott Rodino (HSR) premerger notification rules. These rule changes allow the submission of HSR filings over the internet. See, Federal Register, June 23, 2006, Vol. 71, No. 121, at Pages 35995-36007.

Supreme Court Dismisses Writ of Certiorari in LabCorp v. Metabolite

6/22. The Supreme Court issued a one sentence per curiam opinion [PDF] in Laboratory Corp. of America v. Metabolite Laboratories, a case regarding patentable subject matter. The Court wrote that "The writ of certiorari is dismissed as improvidently granted."

Introduction. This lets stand judgment of Court of Appeals (FedCir). See, June 8, 2004 opinion [PDF]. The Court of Appeals affirmed the judgment of the District Court, which held Metabolite's patent to be valid and enforceable. The issue of patentable subject matter was not addressed below, but was the issue upon which certiorari was granted. The dismissal of the writ of certiorari leaves unchanged for now the law regarding patentable subject matter.

However, Justice Stephen Breyer wrote a lengthy dissent, in which Justices Stevens and Souter joined. He argued that the Court should have considered the case on the merits. He wrote that "The question presented is not unusually difficult. We have the authority to decide it. We said that we would do so. The parties and amici have fully briefed the question."

The majority did not explain its disposition of the case. However, among the possible reasons for dismissing the writ is that the issue upon which the writ was granted was not litigated in the courts below. Hence, while the parties and amici briefed the legal issue before the Supreme Court, the District Court never developed a factual record. Moreover, the Supreme Court lacked the benefit of the lower courts' legal analysis.

There is also the matter that Chief Justice Roberts did not participate. His former law firm represents one of the parties. Affirmance in a 4-4 split could have turned out to be a short lived resolution, since Roberts would have participated in the next case involving patentable subject matter.

The Supreme Court has ducked, for now, the issue of patentable subject matter. Nevertheless, that it initially granted certiorari, and that three Justices opposed dismissal, suggest that the Supreme Court may soon revisit this issue in another case. The eventual opinion might impose limits upon patentable subject matter.

Until such time, the 1981 opinion of the Supreme Court in Diamond v. Diehr, 450 U.S. 175, and its Federal Circuit progeny, remain good law. The Court held in Diamond that "a process for curing synthetic rubber which includes in several of its steps the use of a mathematical formula and a programmed digital computer is patentable subject matter" under 35 U.S.C. § 101, which provides, in full, that "Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title."

Background. This is a patent case that does not involve information technology. Rather, the patent at issue discloses a process for helping to diagnose deficiencies of two vitamins, folate and cobalamin. However, the legal issues that the Court might have addressed are relevant to tech related patent practice.

Metabolite Laboratories is the holder of U.S. Patent No. 4,940,658, titled "Assay for sulfhydryl amino acids and methods for detecting and distinguishing cobalamin and folic acid deficency".

The abstract states: "Method for determining levels of sulfhydryl amino acids, particularly total homocysteine levels in samples of body tissue from warm-blooded animals, methods of detecting cobalamin and folic acid deficiency using an assay for total homocysteine levels, and methods for distinguishing cobalamin from folic acid deficiency using an assay for total homocysteine levels in conjunction with an assay for methylmalonic acid."

The Court of Appeals opinion involves Claim 13 of this patent, which states:

"13. A method for detecting a deficiency of cobalamin or folate in warm-blooded animals comprising the steps of:
  assaying a body fluid for an elevated level of total homocysteine; and
  correlating an elevated level of total homocysteine in said body fluid with a deficiency of cobalamin or folate."

Metabolite filed a complaint in U.S. District Court (DColo) against Laboratory Corporation (LabCorp) alleging infringement of its patent. Metabolite prevailed in the District Court. The Court held that the patent is valid, and that LabCorp induced the infringement of the patent by encouraging doctors to perform certain tests. The Court awarded damages, and issued an injunction.

The District Court did not address patentable subject matter under 35 U.S.C. § 101. It provides, in full, that "Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title."

LabCorp appealed. The Court of Appeals (FedCir) issued its opinion [PDF] on June 8, 2004 affirming the District Court. Judge Rader wrote the opinion of the Court in which Judge Friedman joined. Judge Schall dissented in part.

The Supreme Court granted certiorari on October 31, 2005. See, story titled "Supreme Court Grants Certiorari in LabCorp v. Metabolite" in TLJ Daily E-Mail Alert No. 1,244, November 1, 2004. The Supreme Court wrote in its Order List that "The petition for a writ of certiorari is granted limited to Question 3 presented by the petition." This is "Whether a method patent setting forth an indefinite, undescribed, and non-enabling step directing a party simply to ``correlat[e]´´ test results can validly claim a monopoly over a basic scientific relationship used in medical treatment such that any doctor necessarily infringes the patent merely by thinking about the relationship after looking at a test result."

Justice Breyer's Dissent. He wrote that it is a principle of patent law that "laws of nature, natural phenomena, and abstract ideas" are not patentable subject matter.

He then argued that "The justification for the principle does not lie in any claim that ``laws of nature´´ are obvious, or that their discovery is easy, or that they are not useful. To the contrary, research into such matters may be costly and time-consuming; monetary incentives may matter; and the fruits of those incentives and that research may prove of great benefit to the human race. Rather, the reason for the exclusion is that sometimes too much patent protection can impede rather than ``promote the Progress of Science and useful Arts,´´ the constitutional objective of patent and copyright protection."

He continued that "The problem arises from the fact that patents do not only encourage research by providing monetary incentives for invention. Sometimes their presence can discourage research by impeding the free exchange of information, for example by forcing researchers to avoid the use of potentially patented ideas, by leading them to conduct costly and time-consuming searches of existing or pending patents, by requiring complex licensing arrangements, and by raising the costs of using the patented information, sometimes prohibitively so."

And, he argued, that "patent law seeks to sail between these opposing and risky shoals is through rules that bring certain types of invention and discovery within the scope of patentability while excluding others."

He then reviewed the facts of the case, the proceedings in the District Court and Court of Appeals, and suggested that he would have reversed.

Moreover, he criticized the State Street Bank case, which involves business method patents.

He wrote that State Street Bank "does say that a process is patentable if it produces a "useful, concrete, and tangible result." ... But this Court has never made such a statement and, if taken literally, the statement would cover instances where this Court has held the contrary. The Court, for example, has invalidated a claim to the use of electromagnetic current for transmitting messages over long distances even though it produces a result that seems "useful, concrete, and tangible." ... Similarly the Court has invalidated a patent setting forth a system for triggering alarm limits in connection with catalytic conversion despite a similar utility, concreteness, and tangibility. ... And the Court has invalidated a patent setting forth a process that transforms, for computer-programming purposes, decimal figures into binary figures -- even though the result would seem useful, concrete, and at least arguably (within the computer’s wiring system) tangible. ..." (Citations omitted. Parentheses in original.)

See, State Street Bank & Trust Co. v. Signal Financial Group, Inc., 149 F.3d 1368. The Supreme Court denied certiorari in that case.

Amicus Briefs. Numerous amicus parties submitted amicus briefs to the Supreme Court.

The American Intellectual Property Law Association (AIPLA) wrote in its brief [28 pages in PDF] in support of Metabolite that the Supreme Court should "leave unchanged the current test described in Diamond v. Diehr, 450 U.S. 175 (1981), for evaluating patentable subject matter under 35 U.S.C. § 101. The Diehr test properly reflects Congress’s intent that ``anything under the sun made by man´´ is patentable subject matter."

It also wrote that "Consistent with the broad language of section 101, this Court has recognized only a few exceptions to patentable subject matter. These exceptions have been narrowly construed to preclude only those patent claims directed to laws of nature, natural phenomena, or abstract ideas, in isolation.8 Although laws of nature, natural phenomena, and abstract ideas cannot be patented in isolation, the application of a law of nature, natural phenomena, or abstract idea to a useful process or product may be patentable under section 101. It is irrelevant whether a portion of a patent claim, viewed in isolation, would or would not satisfy section 101. Rather, if the claim as a whole recites patentable subject matter, it satisfies the liberal standard of section 101." (Footnotes omitted.)

The AIPLA urged the Supreme Court "not to disturb the broad and accessible threshold of statutory subject matter that has fostered innovation and public disclosure over a wide variety of useful arts, and importantly, in new and emerging fields of technology ..."

The Intellectual Property Owners Association (IPO) wrote in its brief [19 pages in PDF] that "the bounds of patentable subject matter, as delineated by the Patent Act and by Diamond v. Diehr, 450 U.S. 175 (1981), are both correct and clear. Any narrowing of these bounds would likely disturb the existing property rights of patentees and disrupt incentives for current and future scientific and technological research."

In contrast, the Computer & Communications Industry Association (CCIA) wrote in its brief [27 pages in PDF] that "This case squarely presents the central issue of patent policy in today's knowledge-driven economy: drawing the line between abstract idea and patentable process. With the explosive success of the Internet and the World Wide Web enabling a wealth of new business models, this question becomes as critical and challenging as delineating expression from idea in copyright. It is as important for software and services as it is for biotechnology and medical practice; this question must be answered for all innovation environments."

The CCIA argues that the Federal Circuit has gone too far in expanding the scope of patentable subject matter in the area of methods and processes since the Supreme Court issued its opinion in Diamond v. Diehr. However, the CCIA's concern is not with biological or medical related methods and processes. Rather, its concern is with business methods that involve information technology. And in particular, it is dissatisfied with the Federal Circuit's 1998 opinion in State Street Bank & Trust Co. v. Signal Financial Group, Inc., 149 F.3d 1368. (The Supreme Court denied certiorari in that case.)

The Court of Appeals number is 03-1120. The Supreme Court number is 04-607. See also, Supreme Court docket.

LabCorp is represented by Jonathan Franklin of the law firm of Hogan & Hartson, which is Chief Justice Roberts' former law firm. Roberts did not participate in the just released opinion.

Metabolite is represented by Miguel Estrada of the law firm of Gibson Dunn & Crutcher. Estrada might have become a Judge of the U.S. Court of Appeals (DCCir) (President Bush nominated him), and might have then been nominated for one of the Supreme Court seats now held by Roberts or Alito, if not for opposition from Senate Democrats.

Senate Commerce Committee Begins Mark Up of Communications Reform Bill

6/22. The Senate Commerce Committee (SCC) began its mark up the "Communications, Consumer's Choice, and Broadband Deployment Act of 2006". See, third discussion draft [159 pages in PDF] of the bill, which was introduced as S 2686, but is now numbered HR 5252. See, full story.

FCC to Tax Interconnected VOIP Service Providers

6/21. The Federal Communications Commission (FCC) adopted, but did not release, a Report and Order and Notice of Proposed Rulemaking. It provides, among other things, that the FCC will tax interconnected voice over internet protocol (VOIP) providers. This expands the entities taxed to pay for the FCC's universal service subsidy program. This item also raises taxes on wireless service provides. However, it does not address the subsidy side of the program.

Also on June 21, but later in the day, the House Commerce Committee's (HCC) Subcommittee on Telecommunications and the Internet held a hearing titled "Universal Service: What Are We Subsidizing and Why? Part 1: The High-Cost Fund".

Rep. Joe Barton (R-TX), the Chairman of the HCC, wrote in his opening statement that "the current system is gameable, it's not fair, it's out-of-date". He cited the example of a posh suburb or Houston, Texas, where homes sell for $250,000 to $1,000,000 that created its own phone cooperative that is "getting huge federal and state subsidies".

See, full story.

FCC Adopts FNPRM on Rules Regulating Ownership of Media

6/21. The Federal Communications Commission (FCC) adopted, but did not release, a Further Notice of Proposed Rulemaking (FNPRM), related to its various media ownership rules. The FCC did not amend its rules. Rather, it once again asked for public comments on how to amend its rules that regulate ownership of broadcast and newspaper media, including the local television ownership limit, local radio ownership limit, newspaper broadcast cross-ownership ban, radio television cross-ownership limit, dual network ban, and UHF discount on the national television ownership limit.

The FCC issued a short release [3 pages in PDF] that summarizes this item. However, it is short on details. Also, each Commissioner wrote a statement.

The FCC's release states that this FNPRM requests comments on whether the FCC should "revise the limits adopted in the 2002 Biennial Review Order on the number of stations that can be commonly owned in one market, or is there additional evidence or analysis available now upon which the Commission can rely to further justify the limits adopted then".

The FCC's release also states that the FNPRM asks whether the FCC should "revise these numerical limits or is additional evidence available to further justify them".

The FCC's release also states that the FNPRM asks how the FCC should "address radio/television and newspaper/broadcast cross-ownership issues".

The FCC's release also states that the FNPRM "seeks comment on the court’s remand of certain proposals relating to minority ownership. In addition, responsive to the quadrennial review required by statute, the Further Notice seeks comment on whether these rules sent back to the Commission by the court, as well as the dual network rule which was not at issue in Prometheus, are necessary in the public interest as a result of competition."

The FCC must write new rules, because the Court of Appeals in 2004 instructed it to do so in Prometheus Radio Project v. FCC. The Court overturned parts of the FCC's 2003 rules . Hence, this FNPRM belatedly responds to the Court's directions in Prometheus Radio.

On June 2, 2003, the FCC announced its Report and Order and Notice of Proposed Rulemaking [257 pages in PDF] amending its media ownership rules. See, story titled "FCC Announces Revisions to Media Ownership Rules" in TLJ Daily E-Mail Alert No. 672, June 3, 2003.

These 2003 rule changes, in turn, responded to the directions of the U.S. Court of Appeals (DCCir). For example, on April 2, 2002, the DC Circuit issued its opinion in Sinclair Broadcast Group v. FCC, remanding the FCC's local television ownership rule for further consideration. See, story titled "DC Circuit Remands Local TV Ownership Rule to FCC" in TLJ Daily E-Mail Alert No. 402, April 3, 2002. Also, on February 19, 2002, the DC Circuit issued its opinion in Fox v. FCC. The Court overturned the FCC's national TV station ownership rule (NTSO) and its cable broadcast cross ownership rule (CBCO). See, stories titled "DC Circuit Vacates Cable Broadcast Cross Ownership Rule", TLJ Daily E-Mail Alert No. 372, February 20, 2002, and "FCC Files Petition for Review of Appeals Court Opinion in Fox v. FCC" in TLJ Daily E-Mail Alert No. 415, April 22, 2002.

However, as a result of successful forum shopping efforts by opponents of the FCC's 2003 rule changes, the legal challenge was heard by a different circuit. On June 24, 2004, the U.S. Court of Appeals (3rdCir) issued its opinion [213 pages in PDF] in Prometheus Radio, 373 F.3d 372, overturning some of the FCC's media ownership rules. See, story titled "3rd Circuit Rules in Media Ownership Case" in TLJ Daily E-Mail Alert No. 930, July 1, 2004. The Supreme Court denied certiorari. See, story titled "Supreme Court Denies Certiorari in Media Ownership Rules Case" in TLJ Daily E-Mail Alert No. 1,153, June 14, 2005.

FCC Chairman Kevin Martin wrote in his statement [PDF] that the FCC "should take into account the competitive realities of the media marketplace while also ensuring the promotion of the important goals of localism and diversity."

FCC Commissioner Deborah Tate wrote in her separate statement [PDF] that "As we move forward, we must realize that the world is indeed interconnected and that American companies must be able to compete in order to continue to be global leaders in the media marketplace."

FCC Commissioner Robert McDowell wrote in his statement [PDF] that "Our rules must take into account the dramatic changes that have occurred in the media landscape".

FCC Commissioner Michael Copps, who has for years railed against the evils of media consolidation and "giant media moguls", wrote in his statement [PDF] that FCC's 2003 rules changes were "misguided handiwork" that "tried to eliminate important safeguards that protected media diversity, localism and competition". He added that "Three years ago the FCC tried to inflict this massive wave of further consolidation onto an already highly concentrated media industry."

Michael CoppsCopps (at right) also discussed transparency at length. He wrote that "Some companies want the government to make the decision to rush into more media concentration behind closed doors in sequestered Washington bureaucracies." He argued that "we need a transparent process", and that "Such a process makes inevitably for better policy".

While Commission Copps argues for more transparency in these proceedings, he has also argued for less transparency in other proceedings. He has argued that that open meeting law should be amended to allow the Commission conduct business in secret. His desire for transparency is selective.

FCC Commissioner Jonathan Adelstein wrote in his statement [PDF] that this FNPRM "is totally inadequate".

He elaborated that "The large media companies wanted, and today they get, a blank check to permit further media consolidation. The Notice is so open-ended that it will permit the majority of the Commission to allow giant media companies to get even bigger at the time, place and manner of their choosing."

The FCC's release provides a document number for this item, FCC 06-93. However, it does not identify any docket numbers. That it, it does not reference the docket numbers for the FCC's various long running media ownership proceedings, such as MB Docket No. 02-277, MM Docket No. 01-235, MM Docket No. 01-317, and MM Docket No. 00-244. The statements of the Commissioners list these four docket numbers, and a new one, MB Docket Nos. 06-121.

People and Appointments

6/21. John Imhoff was named the Deputy Chief, Criminal Investigation (CI), of the Internal Revenue Service (IRS). See, IRS release. Christopher Wagner was named Deputy Commissioner of the Tax Exempt and Government Entities (TE/GE) Division. See, IRS release. Frank Ng was named Deputy Commissioner, Large and Mid-Size Business (International). See, IRS release.

Go to News from June 16-20, 2006.