TLJ News from September 26-30, 2006

House and Senate Approve Port Security Bill With Tech Provisions

9/30. The House and Senate both approved the conference report on HR 4954, the "Port Security Improvement Act of 2006", just before adjourning for the elections recess.

The House had approved a much different version of the bill back on May 4, 2006. The Senate amended and approved the bill on September 14, 2006. This article does not address the provisions related to port security. Rather, this article addresses VOIP communications, the WARN Act, and the Unlawful Internet Gambling Enforcement Act.

IP Enabled VOIP Communications. The September 14 version of the bill had included the "IP-Enabled Voice Communications and Public Safety Act of 2006". However, this is not in the conference report.

There remains a hypothetical, but unlikely, possibility that the Senate will approve this as a stand alone bill after the November 7 elections in the lame duck session.

See also, story titled "Summary of 911 VOIP Provisions in Senate's Port Security Bill" in TLJ Daily E-Mail Alert No. 1,453, September 20, 2006.

The Federal Communications Commission (FCC) has a proceeding titled "E911 Requirements for IP-Enabled Service Providers". See especially, its "First Report and Order and Notice of Proposed Rulemaking" [90 pages in PDF], numbered FCC 05-116 in Docket Nos. 04-36 and 05-196, adopted on May 19, 2005, and released on June 3, 2005.

The FCC's order extended 911/E911 regulation to interconnected VOIP service providers. It also imposed draconian notice and service termination requirements on interconnected VOIP service providers. However, it did not require local exchange carriers to interconnect with VOIP service providers, or state any other incumbent local exchange carriers (ILEC) obligations to VOIP service providers. Nor did it provide that VOIP service providers have any right of access to emergency facilities such as 911/E911 call centers, most of which are owned by ILECs. Nor did it extend immunity to VOIP service providers

WARN Act. Sen. Jim DeMint (R-SC) introduced S 1753, the "Warning, Alert, and Response Network Act", or "WARN Act", on September 22, 2005. The Senate Commerce Committee (SCC) amended and approved this as a stand alone bill on October 20, 2005. See, story titled "Senate Commerce Committee Approves WARN Act" in TLJ Daily E-Mail Alert No. 1,238, September 24, 2006. The September 14 version of the port security bill included a version of S 1753. See, story titled "Senate Adopts National Alert System Amendment" in TLJ Daily E-Mail Alert No. 1,449, September 14, 2006. The conference report on the port security bill, as approved by the House and Senate, includes a further revised version of the WARN Act.

See also, House bills, HR 5556 and HR 5785.

The conference report approved by the House and Senate provides that "Within 180 days after the date on which the Commercial Mobile Service Alert Advisory Committee, established pursuant to section 603(a), transmits recommendations to the Federal Communications Commission, the Commission shall complete a proceeding to adopt relevant technical standards, protocols, procedures, and other technical requirements based on the recommendations of such Advisory Committee necessary to enable commercial mobile service alerting capability for commercial mobile service providers that voluntarily elect to transmit emergency alerts. The Commission shall consult with the National Institute of Standards and Technology regarding the adoption of technical standards under this subsection."

It also provides that that with 120 days after the FCC adopts these technical standards, it "shall complete a proceeding -- (A) to allow any licensee providing commercial mobile service ... to transmit emergency alerts to subscribers to, or users of, the commercial mobile service provided by such licensee; (B) to require any licensee providing commercial mobile service that elects ... not to transmit emergency alerts to provide clear and conspicuous notice at the point of sale of any devices with which its commercial mobile service is included, that it will not transmit such alerts via the service it provides for the device ..."

Then, within 30 days of of this order, "each licensee providing commercial mobile service shall file an election with the Commission with respect to whether or not it intends to transmit emergency alerts."

The bill further provides that "Any commercial mobile service licensee electing to transmit emergency alerts may offer subscribers the capability of preventing the subscriber's device from receiving such alerts, or classes of such alerts, other than an alert issued by the President." However, the bill also requires the FCC to submit a report to the Congress after two years regarding this provision.

Internet Gambling. The conference report approved by the House and Senate includes the "Unlawful Internet Gambling Enforcement Act of 2006". See, text of bill.

More News

9/30. The House and the Senate recessed until after the November 7, 2006, elections. The House and Senate approved HConRes 483, which provides for adjournment until 2:00 PM on Thursday, November 9, 2006. Members of the House and Senate have stated in speeches that they will return on Monday, November 13, 2006.

Gonzales Addresses Counterfeiting and Piracy

9/29. Attorney General Alberto Gonzales gave a speech in Washington DC at the U.S. Chamber of Commerce's 3rd Annual Anti-Counterfeiting and Piracy Summit.

Gonzales emphasized violations of intellectual property rights (IPR) that are in the nature of counterfeiting and piracy, which are also the main IPR related concerns of the U.S. Chamber of Commerce. He also emphasized the harmful effects that IPR violations have on the companies (and their employees) that lawfully make things that are counterfeited or pirated by others.

David Hirschmann, SVP of the U.S. Chamber of Commerce, stated in a release that "Counterfeiting and piracy cost the U.S. economy more than $250 billion a year and an estimated 750,000 jobs".

The Attorney General said that "Whether it is the copyright of a blockbuster film, a trade secret for an innovative product, a patent on a life-saving drug, or a trademark of a valuable brand, intellectual property is a significant source of growth in the American economy and a key driver of global economic activity."

Alberto GonzalesGonzales (at right) stated that "The ideas and inventions of our citizens provide our competitive advantage in the thriving global economy. Our competitive advantage, however, is threatened by those who steal the ideas of others and produce inferior substitutes that damage the reputation and profitability of a sought-after, trademarked original, or steal the trade secrets of a productive company."

He said that "Stealing is stealing. It is a crime that threatens not only America’s economic prosperity but the health, safety, and security of our citizens."

He also addressed what the Department of Justice (DOJ) is doing. He wrote that "Among our many achievements, the Department of Justice increased the number of defendants indicted for intellectual property offenses by 98% from fiscal year 2004 to 2005. We increased the number of prosecutors we have in the field by creating 12 new Computer Hacking and Intellectual Property, or CHIP, Units in U.S. Attorneys’ offices around the country, including offices in Pittsburgh, Pennsylvania, Orlando, Florida, Detroit, Michigan, Sacramento, California, and Nashville, Tennessee."

Gonzales added that "We are seeking legislation that would, among other things, increase penalties for intellectual property crimes, clarify that registration of a copyright is not required for a criminal prosecution, make attempts to commit copyright infringement a crime, and increase the tools investigators have at their disposal to track potential intellectual property crimes. We urge the Congress to pass this important legislation to further support our efforts in this important area."

HR 6052 [100 pages in PDF], the "Copyright Modernization Act of 2006", has stalled in the House Judiciary Committee. Its sponsor, Rep. Lamar Smith (R-TX), stated on September 27, 2006, that its enactment will have to wait until the 110th Congress. This large bill includes not only the orphans works bill, and the music licensing bill known as SIRA, but also a proposal to provide the DOJ with more resources for investigating and prosecuting intellectual property crimes. The U.S. Chamber of Commerce supports this portion of the bill. See also, story titled "House Judiciary Committee Puts Off Consideration of Copyright Legislation Until Next Year" in TLJ Daily E-Mail Alert No. 1,457, September 27, 2006.

HR 6052 provides that the DOJ "shall ... create an operational unit of the Federal Bureau of Investigation -- (A) to work with the Computer Crime and Intellectual Property section of the Department of Justice on the investigation and coordination of intellectual property crimes that are complex, committed in more than one judicial district, or international; (B) that consists of at least 10 agents of the Bureau; and (C) that is located at the headquarters of the Bureau".

It also requires that the DOJ "shall ... ensure that any unit in the Department of Justice responsible for investigating computer hacking or intellectual property crimes is assigned at least 2 agents of the Federal Bureau of Investigation (in addition to any agent assigned, or authorized to be assigned, to such unit as of the date of the enactment of this Act) to support such unit for the purpose of investigating or prosecuting intellectual property crimes". (Parentheses in original.)

It also requires that the DOJ "shall ... implement a comprehensive program -- (A) the purpose of which is to train agents of the Federal Bureau of Investigation in the investigation and prosecution of such crimes and the enforcement of laws related to intellectual property crimes; (B) that includes relevant forensic training related to investigating and prosecuting intellectual property crimes; and (C) that requires such agents who investigate or prosecute intellectual property crimes to attend the program annually."

The bill further provides that within 120 of enactment "the Attorney General shall assign one Federal prosecutor to the appropriate office of the Department of Justice located in Hong Kong and one Federal prosecutor to such an office located in Budapest, Hungary, to assist in the coordination of the enforcement of intellectual property laws between the United States and foreign nations."

It also provides that the DOJ "shall create a Task Force to develop and implement a comprehensive, long-range plan to investigate and prosecute international organized crime syndicates engaging in or supporting crimes relating to the theft of intellectual property."

Finally, to carry out these projects, the bill authorizes the appropriation of $12 Million FY 2007 through FY 2011.

This section of the HR 6052 contains no increases in penalties.

NTIA and ICANN Sign Agreement

9/29. The U.S. Department of Commerce's (DOC) National Telecommunications and Information Administration (NTIA) and the Internet Corporation for Assigned Names and Numbers (ICANN) signed a Joint Project Agreement [6 pages in PDF].

It states that it is "for the purpose of the joint development of the mechanisms, methods, and procedures necessary to effect the transition of Internet domain".

John KneuerJohn Kneuer (at right), the acting head of the NTIA, stated in a release [PDF] that "We continue to believe that ICANN is the appropriate private sector entity to coordinate the technical elements of the DNS". But, he added that "We are committed to working with ICANN to ensure that they have the established transparency and accountability mechanisms necessary to be a stable, lasting and independent institution".

This agreement extends the existing Memorandum of Understanding (MOU) until September 30, 2009. The MOU was set to expire on September 30, 2006. See, NTIA web page with hyperlinks to the original MOU, and amendments.

Paul Twomey, P/CEO of the ICANN stated in a release that "ICANN has secured an agreement that recognizes it as being responsible for the management of the Internet's system of unique identifiers on an ongoing basis. It means ICANN is more autonomous".

The just signed agreement also provides that either party can terminate it with 120 days notice.

The Senate adjourned on September 30 for its election recess without confirming Kneuer's nomination to be head of the NTIA.

WTO Panel Sides With US On EU Biotech Ban

9/29. A World Trade Organization's (WTO) panel issued it report on the complaint submitted by the US, Canada and Argentina against the EU regarding its ban on biotech products. The panel recommended that the EU has acted inconsistently with its obligations under the SPS Agreement. See, Conclusions and Recommendations [21 pages in PDF], and web page with hyperlinks to other parts of the report, in MS Word and PDF.

Susan Schwab, the U.S. Trade Representative (USTR), stated in a release that "The WTO has ruled in favor of science-based policymaking over the unjustified, anti-biotech policies adopted in the EU ... After eight years of legal wrangling and stalling by Europe, we are a step closer to clearing barriers faced by U.S. agricultural producers and expanding global use of promising advances in food production."

She also urged the EU "to fully comply with its WTO obligations, and consider all outstanding biotech product applications, and evaluate their scientific merits in accordance with the EU’s own laws, without undue delay".

FCC Releases Order Regarding Support for Telemedicine

9/29. The Federal Communications Commission (FCC) released an Order [14 pages in PDF] regarding universal service support for rural health care services.

FCC Chairman Kevin Martin wrote in his statement that this order "is an important step towards the creation of a ubiquitous, nationwide, broadband network dedicated to health care. The deployment of such a network will create numerous opportunities for delivering telehealth services, including telemedicine applications, that have the potential to revolutionize the current healthcare system throughout the nation."

He continued that "This is particularly true in rural and underserved areas, where distance often separates patients from the medical care they need. Under the pilot program we adopt today, patients anywhere on the network will have greater access to critically needed specialists in a variety of specialties. For example, through the use of telemedicine, doctors in urban hospitals can read radiology images of patients in rural trauma centers and provide realtime consultations. This ability to diagnose, treat, and monitor patients from a distance will reduce the length of hospital stays, lower medical expenses, and improve the quality of health care."

This item is FCC 06-144 in WC Docket No. 02-60. This proceeding is titled "In the Matter of Rural Health Care Support Mechanism". The FCC adopted this item at its September 26 meeting. See also, FCC release [PDF].

FCC Releases Report on Wireless Competition

9/29. The Federal Communications Commission (FCC) released its annual report [127 pages in PDF] on the state of wireless competition. The report concludes that "there is effective competition in the CMRS marketplace".

It states that "Among the indicators of market structure that support this conclusion, 98 percent of the total U.S. population lives in counties with access to three or more different operators offering mobile telephone service, slightly higher than in the previous year, and up from 88 percent in 2000, the first year for which these statistics were kept. The percentage of the U.S. population living in counties with access to four or more different mobile telephone operators is also slightly higher than in the previous year."

The report continues that "competitive pressure continues to drive carriers to introduce innovative pricing plans and service offerings, and to match the pricing and service innovations introduced by rival carriers. Price rivalry is evidenced by the introduction of ``mobile to anyone´´ calling options, and by the proliferation of a variety of prepaid plans, or distinct prepaid brands (such as ``Boost Mobile´´), targeted at previously untapped segments of the market."

The report also states that "In the 12 months ending December 2005, the United States mobile telephone sector increased subscribership from 184.7 million to 213 million, raising the nationwide penetration rate to approximately 71 percent of the population. Mobile subscribers continued to increase the amount of time they spend talking on their mobile phones, with average minutes of use per subscriber per month rising to 740 minutes in the second half of 2005 from 584 minutes in 2004 and 507 minutes in 2003."

This item is FCC 06-142 in WT Docket No. 06-17 (Terminated). The FCC adopted this item at its September 26 meeting. See also, FCC release [PDF].

People and Appointments

9/29. Rep. Mark Foley (R-FL) resigned. He was a member of the House Ways and Means Committee and its Subcommittee on Trade.

9/29. President Bush announced his intent to nominate Robert Hoyt be General Counsel for the Department of the Treasury. He is currently Associate Counsel to the President. He was previously an attorney at the law firm of Wilmer Cutler Pickering Hale & Dorr. See, White House release.

9/29. The Senate confirmed Cynthia Glassman to be Under Secretary for Economic Affairs at the Department of Commerce.

9/29. The Senate confirmed Sharon Hays to be Associate Director of the Office of Science and Technology Policy (OSTP) in the Executive Office of the President.

9/29. The Senate confirmed Mary Peters to be Secretary of Transportation.

9/29. The Senate confirmed John Veroneau to be Deputy U.S. Trade Representative.

9/29. The Senate confirmed Robert Steel to be an Under Secretary of the Treasury.

9/29. The Senate confirmed Christopher Padilla to be an Assistant Secretary of Commerce.

9/29. The Senate confirmed Rodger Heaton to be the U.S. Attorney for the Central District of Illinois for the term of four years.

9/29. The Senate Judiciary Committee (SJC) approved the nominations of Nora Fischer (to be a Judge of the U.S. District Court for the Western District of Pennsylvania). Gregory Frizzell (USDC, Northern District of Oklahoma), Marcia Howard (USDC. Middle District of Florida), Robert Jonker (USDC, Western District of Michigan), Paul Maloney (USDC, Western District of Michigan), Janet Neff (USDC, Western District of Michigan), Leslie Southwick (USDC, Southern District of Mississippi), Lisa Wood (USDC, Southern District of Georgia), Sharon Potter (USDC, Northern District of West Virginia), and Deborah Rhodes (USDC, Southern District of Alabama). See, Congressional Record, September 29, 2006, at Page S10675. However, the SJC again held over consideration of the nominations of Terrence Boyle (to be a Judge of the U.S. Court of Appeals for the 4th Circuit), William Haynes (4th Circuit), Peter Keisler (District of Columbia Circuit), and William Myers (9th Circuit).

More Capitol Hill News

9/29. The House Commerce Committee's (HCC) Subcommittee on Oversight and Investigations held a day long hearing on Thursday, September 28, titled "Hewlett Packard's Pretexting Scandal". The Subcommittee held another four hours of hearings on Friday, September 29. TLJ anticipates publishing stories in the Monday issue on HP's spying scandal, as well as pretexting generally, litigation involving data brokers, HR 4943 (the "Prevention of Fraudulent Access to Phone Records Act"), spyware, and the Computer Fraud and Abuse Act.

9/29. The House and Senate approved the conference reports on HR 4954, the "Port Security Improvement Act of 2006", HR 5441, the "Department of Homeland Security Appropriations Act, 2007", and HR 5122, the "John Warner National Defense Authorization Act for Fiscal Year 2007".

More FCC News

9/29. The Federal Communications Commission (FCC) released a Second Order on Reconsideration and Second Report and Order [50 pages in PDF] regarding the regulation of broadcasters with respect to children's television. This item is FCC 06-143 in MM Docket 00-167. The FCC adopted this item at its September 26 meeting. See also, FCC release [PDF].

9/29. The Federal Communications Commission (FCC) released a Memorandum Opinion and Order [11 pages in PDF] that denies a petition filed by Fones4All requesting that the FCC expand incumbent local exchange carriers' (LECs) unbundling obligations by forbearing from specific aspects of the FCC's unbundling rules. This item is FCC 06-145 WC Docket No. 05-261. See also, FCC release. Earl Comstock, head of COMPTEL, wrote in a release that his group is now "deeply disappointed".

More News

9/29. The U.S. Court of Appeals (9thCir) issued an order [PDF] in Odom v. Microsoft, stating that an en banc panel of the Court will rehear this case. This case is James Odom v. Microsoft Corporation and Best Buy Co., Inc., U.S. Court of Appeals for the 9th Circuit, App. Ct. No. 04-35468.

9/29. The U.S. District Court (EDVa) sentenced Robert E. Johnson to two years in prison, following his previous plea of guilty to one count of wire fraud. He was Chief of Quality Assurance and Contracting Officer's Technical Representative for the US Army Information Technology Agency (USAITA). He used the wires to direct two prime contractors to subcontract with two companies in which he secretly held a financial interest. See, DOJ release.

9/29. Anthony Spadola and Broadcom Voice & Data Inc. entered pleas of guilty in U.S. District Court (SDNY) in connection with their rigging of bids for telecom equipment contracts. The Department of Justice (DOJ) stated in a release that this case involves "kickbacks, bid rigging, bribery, contract allocation, and related charges for the supply of telecommunications equipment and services to Mount Sinai School of Medicine and the Mount Sinai Hospital (Mount Sinai)". Spadola was previously an information technology manager at Mount Sinai. Another Mount Sinai employee, Stephen Cogliano, pled guilty on September 26. Broadcom and Spadola both pled guilty to bid rigging in violation of 15 U.S.C. § 1. The DOJ stated that "Between January 2001 and September 2003, Broadcom paid Spadola and Cogliano a total of approximately $154,000 in kickbacks in order to ensure that Broadcom would be allocated a portion of Mount Sinai's total contracts for purchasing telecommunications equipment and services and that no alternative vendors would be chosen for those contracts. The kickback money was paid through checks issued by Broadcom to the sham consulting companies created by Spadola and Cogliano."

9/29. Securities and Exchange Commission (SEC) Chairman Chris Cox gave a speech at the SEC's Government and Business Forum on Small Business Capital Formation in Washington DC. As usual, he advocated the use of interactive data in SEC filings. He argued that the use of interactive data by small companies can "improve their analyst coverage" and "their internal controls". He elaborated that "By permitting analysts to cover more companies more efficiently, interactive data will help companies with little or no coverage today to improve their overall visibility to investors. Better research analyst coverage, in turn, should help smaller companies raise capital at a lower cost."

More Capitol Hill News

9/28. The House approved HR 5825, the "Electronic Surveillance Modernization Act" by a vote of 232-191. See, Roll Call No. 502.

9/28. The House approved HR 5418, a bill regarding specialized patent judges, by voice vote. This untitled bill would establish a limited ten year pilot program in a least five U.S. District Courts to develop expertise in judges and court staff in patent and plant variety cases. See also, items titled "HJC Approves Bill Regarding Specialized Patent Judges" and "HR 5418 As Approved by House Judiciary Committee" in TLJ Daily E-Mail Alert No. 1,449, September 14, 2006.

9/28. The Senate Judiciary Committee (SJC) held an executive business meeting. The Committee again held over consideration of several bills, including S 2644, the "Perform Act of 2006", S 3818, the "Patent Reform Act of 2006", S 2831, the "Free Flow of Information Act of 2006", and S 1845, the "Circuit Court of Appeals Restructuring and Modernization Act of 2005".

9/28. Sen. Hillary Clinton (D-NY) introduced S 3967, a bill to require the U.S. International Trade Commission (USITC) to report on the impact of each free trade agreement. It was referred to the Senate Finance Committee.

House Judiciary Committee Puts Off Consideration of Copyright Legislation Until Next Year

9/27. The House Judiciary Committee (HJC) met to mark up several bills, including HR 6052 [100 pages in PDF], the "Copyright Modernization Act of 2006". Rep. James Sensenbrenner (R-WI), the Chairman of the HJC called up the bill. Rep. Lamar Smith (R-TX), the sponsor of the bill, then moved that it be withdrawn. There was no objection. This effectively delays further consideration of this legislation until next year when the 110th Congress meets.

Rep. Smith stated that he thought that the bill could have been approved by the HJC and by the full House, but that he did not wish to force members to make tough votes when enactment this year appeared unlikely.

He added that he will continue to work for approval of legislation in the next Congress.

The House schedule calls for recessing on September 29 for the November elections. However, there may be a lame duck session after the elections. There are other copyright bills that are now likely to lapse, such as HR 5361, known as the Perform Act. See, stories titled "Summary of the RIAA Lawsuit Against XM Satellite Radio", "Summary of the Sen. Feinstein's Perform Act", and "Music Licensing, Satellite Radio, and Perform Act Debated" in TLJ Daily E-Mail Alert No. 1,384, June 5, 2006.

See, full story.

Task Force on Child Obesity and Media Formed

9/27. Members of Congress, the Federal Communications Commission (FCC), companies and groups formed a group titled "Task Force on Child Obesity and Media".

The members of the task force include the Beverly LaHaye Institute, Children Now, Disney, the Parents Television Council, Sesame Workshop, and the Benton Foundation.

Sen. Sam Brownback (R-KS), an organizer of the task force, stated in a release that "Given the saturation of media in our children's lives, we need to understand how media impacts their health and behavior ... I'm pleased that representatives from the public and private sector are coming together to address the rising rate of childhood obesity and its relationship to media and advertising. I hope this task force helps government, parents, and the business community define how to address childhood obesity."

FCC Chairman Kevin Martin spoke at the event. He stated that "children watch two to four hours of television per day and view 40,000 ads per year. And the majority of these commercials are for candy, cereal, soda and fast food. ... The research linking childhood obesity with media and advertising to children troubles me as a parent and as Chairman of the FCC." See, speech [PDF].

People and Appointments

9/27. The Senate Finance Committee (SFC) approved the nomination of John Veroneau to be Deputy United States Trade Representative by a vote of 20-0.

9/27. The Senate Finance Committee (SFC) approved the nomination of Robert Steel to be Under Secretary at the Department of the Treasury by a vote of 20-0.

9/27. The Senate Commerce Committee (SCC) approved the nomination of Cynthia Glassman to be Under Secretary for Economic Affairs at the Department of Commerce. See, SCC release.

9/27. The Senate Commerce Committee (SCC) approved the nomination of Sharon Hays to be Associate Director of the Office of Science and Technology Policy. See, SCC release.

More News

9/27. The House Commerce Committee announced that it "has served subpoenas to five investigators to testify at Thursday's hearing on the Hewlett-Packard corporate spying scandal". These five additional witnesses are:
  • Bryan Wagner (Littleton, Colorado)
  • Charles Kelly (CAS Agency, Villa Rica, Georgia)
  • Cassandra Selvage (Eye in the Sky Investigations, Dade City, Florida)
  • Darren Brost (Austin, Texas)
  • Valerie Preston (InSearchOf Inc., Cooper City, Florida)

9/27. The Federal Trade Commission (FTC) announced in a release that it "has sent letters to 166 advertisers and 77 media outlets warning them that their advertisements targeting Hispanics are potentially deceptive. The ads were spotted during a one-day surf of Spanish-language newspaper, magazine, Internet, radio, and television advertisements ..."

9/27. The Securities and Exchange Commission (SEC) filed a civil complaint [35 pages in PDF] in U.S. District Court (NDCal) against The Children's Internet, Inc. (TCI), Nasser V. Hamedani, Sholeh A. Hamedani, and others, alleging 10b-5 fraud and numerous other violations of federal securities laws in connection with the sale of stock of TCI. The SEC stated in a release that "the Hamedanis fraudulently induced investors to purchase approximately 2.7 million shares of stock in The Children's Internet, a company which sells subscriptions to a children's internet product, by misrepresenting and omitting key facts." It added that "investors were told, among other things, that the shares could be freely traded and would be listed on a national stock exchange shortly, none of which was true." This case is SEC v. The Children's Internet, Inc., et al., U.S. District Court for the Northern District of California, D.C. No. C-06-6003-CW.

DC Circuit Upholds FCC Regulation of Towers and Antennas Under National Historic Preservation Act

9/26. The U.S. Court of Appeals (DCCir) issued its opinion [24 pages in PDF] in CTIA v. FCC, upholding the Federal Communications Commission's (FCC) rules that adopted the document [29 pages in PDF] titled "Nationwide Programmatic Agreement Regarding the Section 106 National Historic Preservation Act Review Process", which regulates tower and antenna construction.

The order [65 pages in PDF] under review is FCC 04-222 in WT Docket No. 03-128. The FCC adopted this order on September 9, 2004, and released it on October 5, 2004. See, stories titled "FCC Announces NPRM Regarding Communications Facilities and the National Historic Preservation Act" in TLJ Daily E-Mail Alert No. 677, June 10, 2003, and "FCC Adopts Report and Order Re FCC Licensing and the National Historic Preservation Act" in TLJ Daily E-Mail Alert No. 975, September 13, 2004.

The issue before the court was whether the FCC has authority under Section 106 of the NHPA, which is codified at 16 U.S.C. § 470f, to write these rules.

Specifically, the Court of Appeals wrote that the CTIA argued that "the FCC erred in concluding that (1) tower construction constitutes a federal undertaking and (2) properties ``eligible for inclusion´´ under section 106, 16 U.S.C. § 470f, include not only proprieties formally designated as such by the Secretary of the Interior, but also properties that meet the criteria outlined in the statute and implementing regulations."

The Court found no error, and hence, denied the petition for review.

See also, brief [PDF] of the FCC.

This case is CTIA -- The Wireless Association v. FCC and USA, App. Ct. No. 05-1008, a petition for review of a final order of the FCC. Judge Griffith wrote the opinion of the Court of Appeals, in which Judges Garland and Tatel joined.

FCC Releases Order Creating Public Safety and Homeland Security Bureau

9/26. On September 25, the Federal Communications Commission (FCC) belatedly released its order [16 pages in PDF] that amends its rules to establish its new Public Safety and Homeland Security Bureau. On September 26, the FCC announced the launch of the new bureau.

The FCC adopted this order back on March 17, 2006. See, story titled "FCC Creates Public Safety and Homeland Security Bureau" in TLJ Daily E-Mail Alert No. 1,332, March 20, 2006.

Commissioners Martin, Copps, Adelstein and Tate wrote separate statements, which were released on March 17, 2006, and are now attached to the just released order. Commissioners also wrote statements on September 26.

The order provides that this bureau is responsible for "all matters pertaining to public safety, homeland security, national security, emergency management and preparedness, disaster management, and ancillary operations."

Chairman Kevin Martin stated on September 26 that "One of the bureau's primary functions is develop and implement communications policies that enhance public safety, including addressing the spectrum needs of the public safety community. To that end, the bureau will assume responsibility for completing the 800 MHz re-banding process and resolving any related interference issues".

Commissioner Michael Copps stated that the new bureau "must also work quickly to further develop our standards for E911 capability for both wireless and VoIP devices. On the wireless front, we need to provide additional guidance to ensure that the location accuracy figures that carriers report accurately reflect real-world performance and are consistent across carriers. We also need to continue our efforts to make sure that consumers understand the level of protection that their mobile phones actually provide them, especially within buildings. On the VoIP front, we need to move forward with our ongoing rulemaking regarding automatic location sensing technologies."

The order enumerates specific subject matters that are the responsibility of the new bureau. These include matters related to technology mandates imposed by the FCC under the rubric of the Communications Assistance for Law Enforcement Act (CALEA), public safety communications, 911 and enhanced 911 (E-911), alert and warning systems including the Emergency Alert System (EAS), communications infrastructure protection, implementation of Homeland Security Presidential Directives and Orders, and reliability, operability and interoperability of networks and communications systems.

The new bureau will handle controversial issues related to facilitating the Department of Justice's (DOJ) efforts to maintain universal surveillance across all existing and emerging telecommunications and information technologies.

The new bureau is also assigned responsibility in some of the areas, such as the FCC's CALEA related proceedings, where the FCC has most aggressively overstepped the limits of its statutory authority.

The order also provides the the new bureau, and the existing Office of Engineering and Technology (OET), will "work with technical standards bodies". For example, the FCC's CALEA orders do not set standards. Rather, they expand the range of entities subject to CALEA like technology mandates, and then delegate authority to outside entities to negotiate technical standards.

The first order [59 pages in PDF] is FCC 05-153 in ET Docket No. 04-295 and RM-10865. The FCC adopted this item on August 5, 2005, and released it on September 23, 2005. See, stories titled "FCC Amends CALEA Statute" in TLJ Daily E-Mail Alert No. 1,191, August 9, 2005, and "FCC CALEA Order Challenged" in TLJ Daily E-Mail Alert No. 1,240, Wednesday, October 26, 2005. The second order [83 pages in PDF] is FCC 06-56 in ET Docket No. 04-295. The FCC adopted this item on May 3, 2006, and released it on May 12, 2006. See, story titled "FCC Further Amends CALEA Statute" in TLJ Daily E-Mail Alert No. 1,365, May 8, 2006. See also, story titled "Cerf and Others Warn that FCC's CALEA Order Threatens Internet Security and Innovation" in TLJ Daily E-Mail Alert No. 1,392, June 15, 2006.

The new bureau will deal with constituent groups with widely divergent interests. One group will include law enforcement agencies, national security agencies, their contractors, data aggregators, and the companies that support service providers and others in complying with surveillance and production directives. Another group will include technology companies that seek to bring new and innovative products and services to consumers. The former group will seek to limit and regulate the products and services of the latter group.

Yet another constituent group will include individual consumers and business entities. They seek new, better, and lower cost innovative products and services. They also seek to protect their security, privacy, and confidentiality of proprietary information. The goals of law enforcement will collide with the goals of these consumers and businesses in some proceedings before the new bureau.

Finally, some of the proceedings of the new bureau will provide opportunities for large incumbent companies to obtain advantages over newer and smaller information technology companies that offer competing or disruptive technologies. One former FCC legal advisor wrote recently that some incumbents "may be more adept at shaping how rules are written to minimize their own burdens while maximizing those of their competitors". He elaborated that the new IT based services companies "often are no match for traditionally-regulated companies when it comes to the day-in, day-out minutiae of monitoring, influencing and ultimately complying with the actions of administrative agencies." See, paper [11 pages in PDF] titled "Beginning to Limit ``Social´´ Regulation of Communications", by Kyle Dixon.

The just released order also provides that the new bureau is given subpoena power.

This item is FCC 06-35. The proceeding is titled "In the Matter of Establishment of the Public Safety and Homeland Security Bureau And Other Organizational Changes".

More People and Appointments

9/26. The President nominated Phillip Swagel to be Assistant Secretary of the Treasury (Economic Policy). He is an economist who currently works at the American Enterprise Institute (AEI). He was previously Chief of Staff of the President's Council of Economic Advisors (CEA). He has also worked at the International Monetary Fund and the Federal Reserve Board (FRB). See, White House release.

9/26. President Bush named Tony Fratto to be Deputy Assistant to the President and Deputy Press Secretary. He was previously Assistant Secretary for Public Affairs at the Department of the Treasury. He has also been Communications Director for Sen. Rick Santorum (R-PA). See, White House release.

More Capitol Hill News

9/26. Rep. Geoff Davis (R-KY) and Rep. Michael McCaul (R-TX) introduced HR 6183. The Congressional Record describes this as "A bill to amend title II of the Social Security Act to provide for employer data sharing with the Department of Homeland Security regarding employers of employees with mismatched social security account numbers". It was referred to the House Ways and Means Committee.

9/26. Rep. Peter King (R-NY) introduced HR 6189, a  bill to amend the Telemarketing and Consumer Fraud and Abuse Prevention Act to authorize the Federal Trade Commission (FTC) to write new rules to establish a requirement that telemarketers shall not make any calls during the hours of 5 and 7 PM. It was referred to the House Commerce Committee.

9/26. Sen. Sam Brownback (R-KS) introduced S 3935, a bill to direct the Federal Trade Commission (FTC) to write rules that prohibit deceptive conduct in the rating of video and computer games. It was referred to the Senate Commerce Committee.

More News

9/26. President Bush signed HR 5684, the "United States-Oman Free Trade Agreement Implementation Act ". See, OUSTR release and story titled "Senate Approves US Oman FTA" in TLJ Daily E-Mail Alert No. 1,452, September 19, 2006.

9/26. The Supreme Court issued an order list [3 pages in PDF]. There are no major technology related items on this list. However, the Court did grant certiorari in Sinochem International v. Malaysia International Shipping, Sup. Ct. No. 06-102, a case involving the forum non conveniens doctrine. See, February 7, 2006, opinion [53 pages in PDF] of the U.S. Court of Appeals (3rdCir).

9/26. The National Institute of Standards and Technology's (NIST) Computer Security Division released its Draft Special Publication 800-98 [126 pages in PDF], titled "Guidance for Securing Radio Frequency Identification (RFID) Systems". The deadline to submit comments is 5:00 PM on October 27, 2006.

9/26. The National Institute of Standards and Technology's (NIST) Computer Security Division released its Draft Special Publication 800-82 [164 pages in PDF], titled "Guide to Supervisory Control and Data Acquisition (SCADA) and Industrial Control Systems Security". The deadline to submit comments is December 22, 2006.

9/26. The National Institute of Standards and Technology's (NIST) Computer Security Division released its Draft Special Publication 800-54 [57 pages in PDF], titled "Border Gateway Protocol Security". The deadline to submit comments is November 30, 2006.

Go to News from September 21-25, 2006.