TLJ News from July 6-10, 2008

Senate Passes and Bush Signs FISA Reform Bill

7/10. The Senate passed HR 6304 [LOC | WW], the "Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2008", on Wednesday, July 9, 2008, by a vote of 69-28. See, Roll Call No. 168. All amendments were either withdrawn or rejected.

The House passed the bill on June 20, 2008, by a vote of 293-129.

President Bush signed the bill into law on Thursday, July 10, at a White House ceremony. See, speech.

See also, stories titled "House and Senate Leaders Release Draft FISA Reform Bill" in TLJ Daily E-Mail Alert No. 1,782, June 18, 2008, and "House Approves FISA Reform Bill" in TLJ Daily E-Mail Alert No. 1,783, June 19, 2008.

This bill provides immunity, including retroactive immunity, from civil suits for carriers and other service providers who cooperate, and who cooperated in the past, with government intelligence agencies.

WTO Releases Negotiating Texts for July 21 Doha Round Meeting

7/10. The World Trade Organization (WTO) released revised negotiating texts for Doha round trade negotiations. See, WTO release with hyperlinks to relevant documents.

Pascal LamyPascal Lamy (at right), Director General of the WTO, announced in a release that "These revised texts set the stage for a decisive moment in the Doha round. Ministers and other senior officials will soon arrive for intensive negotiations the week of 21 July. They need negotiating documents which are clear and precise as they consider the complex issues of agriculture and industrial goods trade."

Lamy added that "These texts go a very long way in that direction. These negotiations have been long and tough but the prize awaiting us should we reach agreement is worth the effort. A deal to open trade in agriculture and goods means more growth, better prospects for development and a more stable and predictable trading system. We must not let this opportunity slip through our fingers".

The Office of the U.S. Trade Representative (OUSTR) issued a release [PDF]. It states in part that "We will be reviewing the revised texts in the coming days. Ambassador Schwab looks forward to meeting with Ministers in Geneva the week of the July 21st. The U.S. is committed to concluding a successful Doha Round this year that achieves new market access for agricultural and industrial products and services in both developed and emerging market economies."

See also, June 23, 2008, speech by Peter Mandelson, the EC Trade Commissioner.

National Intellectual Property Rights Coordination Center Dedicated

7/10. Various federal government agencies with responsibilities related to enforcement of intellectual property laws held a ceremony to announce the dedication of a "National Intellectual Property Rights Coordination Center".

Michael Chertoff, Secretary of Homeland Security, stated in a speech that "in setting up the new center, we've reorganized the way we combat these criminal organizations. And we really emphasized and facilitated a team approach at all levels of government and with the private sector to make sure we're bringing all the elements of national power to bear in dealing with what is a national and transnational problem."

"We're using the tried and true task force model, which we've used in law enforcement over the many years I've been involved in this type of activity." Chertoff added that "Co-locating has proven time and again to be the key to make sure there's fluid communication and coordination at all levels in order to produce the maximum benefit from a law enforcement standpoint."

The Department of Homeland Security (DHS) includes entities involved in IP enforcement, including Customs and Border Protection (CBP) and Immigration and Customs Enforcement (ICE)

Carlos Gutierrez, the Secretary of Commerce, also gave a speech. He said that "In 2004 this administration launched what we called STOP!, the Strategy Targeting Organized Piracy. STOP is the most comprehensive effort in our nation’s history to fight intellectual property theft. And bolster cooperation and collaboration across agencies. In my office we have an intellectual property enforcement coordinator, and he has helped facilitate an unprecedented level of interagency coordination".

He also said that the U.S. Patent and Trademark Office (USPTO), which is a part of the Department of Commerce (DOC), "works closely with its partners in delivering training to foreign government officials to increase enforcement overseas".

This newly dedicated and publicized "National Intellectual Property Rights Coordination Center" is a six word phrase, but not a government entity created by statute.

There is a legislative effort to statutorily mandate and define interagency cooperation. On May 7, 2008, the House passed HR 4279 [LOC | WW], the "Prioritizing Resources and Organization for Intellectual Property Act of 2007" or "PRO IP Act". The Senate has not yet passed this bill. See, story titled "House Passes Pro IP Act" in TLJ Daily E-Mail Alert No. 1,763, May 8, 2008.

This bill would create within the Executive Office of the President (EOP) an Office of the United States Intellectual Property Enforcement Representative.

The Bush administration, which has concerns with provisions in the bill regarding reorganization of executive branch enforcement operations, may be working to prevent passage of this bill.

Secretary Gutierrez commented on pending patent reform legislation, but not enforcement coordination, in his prepared speech. He said that "On the legislative front I will just say one important activity and that is patent modernization. We want a bill that fairly protects innovators across all business models. We don't want to see it become easier to infringe on intellectual property. So there's a bit of a debate going on and we encourage Congress to pass the type of bill that would be balanced across business models."

FTC Releases Annual Report on Do Not Call Registry

7/10. The Federal Trade Commission (FTC) submitted its annual report [20 pages in PDF] to the Congress regarding the Do Not Call Registry.

The report states that at the end of FY 2007, "more than 145 million telephone numbers were on the Registry."

It concludes that "data from surveys and analysis of complaints about do not call violations strongly suggest that compliance with the National Registry provisions of the Amended TSR is high and that consumers are receiving fewer unwanted telemarketing calls."

"Although compliance with the National Registry has been high, the FTC actively investigates and prosecutes violators." The report adds that "As of September 30, 2007, the FTC had filed 25 cases alleging violations of the National Registry and had reached settlements in 22 of these cases, obtaining injunctive relief in all 22 cases. In 13 of the resolved cases, defendants paid civil penalties totaling more than $8.7 million."

This report is the last annual report required by the Do-Not-Call Implementation Act (DNCIA).

However, on February 15, 2008, President Bush signed into law S 781 [LOC | WW], the "Do-Not-Call Registry Fee Extension Act" (now Public Law No. 110-188), and HR 3541 [LOC | WW], the "Do-Not-Call Improvement Act of 2007" (now Public Law No. 110-187), which establish new reporting requirements.

People and Appointments

7/10. President Bush nominated Christine Arguello, Philip Brimmer, and Gregory Goldberg to be Judges of the U.S. District Court for the District of Colorado. See, White House release.

7/10. President Bush nominated William Frederic Jung and Mary Scriven to be Judges of the U.S. District Court for the Middle District of Florida. See, White House release.

7/10. President Bush nominated Clifford May to be a Member of the Broadcasting Board of Governors (BBG), for the remainder of a three year term expiring on August 13, 2009. President Bush withdrew his nomination of Mark McKinnon to be a member of the BBG. See, White House release and release.

7/10. President Bush announced his intent to nominate Anthony Ryan to be Under Secretary of the Treasury for Domestic Finance. He also designated him acting Under Secretary. See, White House release.

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7/10. The Federal Communication Commission's (FCC) Office of Engineering and Technology (OET) announced in a release that it will begin field testing the performance of prototype television white space devices (WSDs), commencing the week of July 14, 2008. This release is DA 08-1635 in ET Docket No. 04-186. The FCC opened its TV white space proceeding in 2004. See, story titled "FCC Adopts NPRM Regarding Unlicensed Use of Broadcast TV Spectrum" in TLJ Daily E-Mail Alert No. 898, May 14, 2004; and story titled "FCC Releases NPRM Regarding Unlicensed Use of TV Spectrum" in TLJ Daily E-Mail Alert No. 905, May 26, 2004. The FCC adopted a Report and Order (R&O) and Further Notice of Proposed Rulemaking (FNPRM) in this proceeding on October 12, 2006. It released the text [43 pages in PDF] on October 18, 2006. See, story titled "FCC Adopts Order and FNPRM Regarding TV White Space" in TLJ Daily E-Mail Alert No. 1,467, October 12, 2006. And see, the OET's web page titled "T.V. Band Device Testing".

7/10. The U.S. District Court (DC) issued a redacted copy of an opinion [PDF] in Pro-Football, Inc. v. Harjo, the long running action regarding efforts by native Americans to cancel the registrations of six trademarks used by Pro-Football, Inc., the owner of the professional football team named "Washington Redskins". The full opinion, which the Court did not release, is dated June 25, 2008. This case is Pro-Football, Inc. v. Susan Shown Harjo, et al., U.S. District Court for the District of Columbia, D.C. No. 99-1385 (CKK), Judge Colleen Kotelly presiding.

7/10. The U.S. Court of Appeals (FedCir) issued a per curiam opinion [6 pages in PDF] in Baystate Technologies v. Bowers, a software patent case, that was dismissed in 2006. This opinion does not address the merits of the case. Rather, it vacates and remands an order of the District Court that denied George Kuney's motion to intervene, and to amend a protective order to allow him access to certain litigation documents. The Court of Appeals wrote that Kuney is "a law professor who is writing a detailed account of the proceedings in this case given its significance to the software industry". It held that "in determining whether a protective order should be modified, the court must balance the privacy interests of the parties against the public interest in access to the discovery information", and that on remand, the District Court must conduct this balancing. The Court of Appeals added that "the parties appear to have little, if any, continued interest in maintaining confidential the documents", while "Kuney alleges that his ability to do scholarly work is dependent on his ability to obtain access to the documents" and public monitoring of the "judicial system fosters the important values of quality, honesty and respect for the judicial system." This case is Baystate Technologies, Inc. v. Harold Bowers, U.S. Court of Appeals for the Federal Circuit, App. Ct. No. 2008-1204, an appeal from the U.S. District Court for the District of Massachusetts, D.C. No. 91-CV-40079.

7/10. The House Armed Services Committee (HASC) held a hearing regarding electromagnetic pulse attacks. William Graham, Chair of the Commission to Assess the Threat to the United States from Electromagnetic Pulse (EMP) Attack, wrote in his prepared testimony [PDF] that "A high-altitude electromagnetic pulse results from the detonation of a nuclear warhead at altitudes in the range of about 40 to 400 kilometers above the Earth’s surface. The immediate effects of EMP are disruption of, and damage to, electronic systems and electrical infrastructure. EMP is not reported in the scientific literature to have direct physiological effects on people." He concluded that "An EMP attack on the critical national infrastructures is a serious problem, but one that can be managed in an orderly way at reasonable cost. A serious national commitment to address the threat of an EMP attack can lead to a national posture that would significantly reduce the payoff for such an attack and allow the United States to recover from EMP, and from other threats, man-made and natural, to the critical national infrastructures. A failure to do so will not only leave the critical infrastructures necessary for our society to function at risk but will also place our ability reliably to conduct military operations in jeopardy." See also, opening statement of Rep. Ike Skelton (D-MO), Chairman of the HASC.

7/10. Rep. Earl Blumenauer (D-OR) and Rep. Lloyd Doggett (D-TX) introduced HR 6452 [LOC | WW], the "Trade and Environment Enforcement (`Green 301´) Act". (Parentheses and quotation in original.) This bill would amend the Trade Act of 1974 to involve the Office of the U.S. Trade Representative (OUSTR) in initiating consultations with foreign governments regarding their environmental policies. It would also require the OUSTR to "identify those foreign country trade practices that cause negative environmental impacts on the protection of human, animal, or plant life or health, or the conservation of exhaustible natural resources in the United States, the foreign country, a third country, or internationally".

Treasury's McCormick Addresses Protectionism and CFIUS

7/9. David McCormick, the Department of the Treasury's (DOT) Under Secretary for International Affairs, gave a speech at the Center for International & Strategic Studies (CSIS) in which he discussed, among other topics investment protectionism and the Committee on Foreign Investment in the United States (CFIUS).

David McCormick McCormick (at right) said that there "is the growing risk of protectionism, particularly directed toward foreign investment, including investment from sovereign wealth funds, here in the United States. In the aftermath of 9/11, we have seen a backlash against foreign investment on national security grounds, with some voicing concerns about the potential for foreigners to gain control over key sectors or critical technologies within our borders."

He said that "Foreign control over U.S. businesses may, in some cases, raise genuine national security concerns. But we also know that foreign direct investment flows into the United States strengthen the U.S. economy by stimulating growth and creating jobs. U.S. affiliates of foreign multinationals employ over five million U.S. workers, or 4.5 percent of all private sector employment. Foreign-owned firms in the United States also pay on average 25 percent more than U.S. firms and help stimulate investment in research and development in high-technology areas that promote innovation and competitiveness. Thus, a significant component of our economic policy mission is safeguarding national security but in a manner that maintains and strengthens the U.S. economy through our longstanding commitment to an open investment policy."

He continued that the CFIUS "reviews certain foreign investments in U.S. businesses to determine whether they raise any genuine national security concerns. The preponderance of transactions in the United States do not require a CFIUS review, and for cases that do, we are taking steps to clarify and streamline the process."

He did not comment on 3Com, Bain Capital Partners and Huwei in his prepared speech. See, story titled "3Com Huawei Transaction to be Reviewed by CFIUS" in TLJ Daily E-Mail Alert No. 1,652, October 9, 2008, and story titled "Bain Drops Bid to Acquire 3Com in Face of CFIUS Review" in TLJ Daily E-Mail Alert No. 1,722, February 25, 2008.

People and Appointments

7/9. Robert Steel, Under Secretary for Domestic Finance at the Department of the Treasury, announced his resignation in a July 9, 2008, letter [PDF] to President Bush. Secretary of the Treasury Henry Paulson announced in a statement new and expanded roles for remaining senior officials. He wrote that "Assistant Secretary for Financial Markets Anthony W. Ryan will take on a broader role managing Treasury's domestic finance and financial markets agenda. Assistant Secretary for Financial Institutions David Nason will continue to spearhead regulatory reform efforts and oversee financial institutions policy, including issues surrounding the government sponsored enterprises. Steven Shafran, who had 22 years of experience in finance before coming to Treasury, will take on a broader role in his current capacity as Senior Adviser to the Secretary. Assistant Secretary Kenneth Carfine will continue to oversee the government's fiscal operations, including managing federal financing needs and the government's cash flow. Deputy Assistant Secretary for Financial Institutions Policy Jeremiah Norton will take on additional financial institutions responsibilities." (Emphasis added.)

7/9. Elisse Walter took the oath of office to become a Commissioner of the Securities and Exchange Commission (SEC). See, SEC release.

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7/9. The House approved HR 5811 [LOC | WW], the "Electronic Message Preservation Act", without amendment, by a vote of 286-137. See, Roll Call No. 477. Democrats voted 230-0 in favor of the bill. Republican voted 56-137.

7/9. The Securities and Exchange Commission (SEC) filed a civil complaint [PDF] in U.S. District Court (DMass) against Sycamore Networks, an optical networking company, and several of its former officers, alleging violation of federal securities laws in connection with the backdating of stock options. The SEC and announced in a release that it simultaneously settled the matter with all defendants, none of whom admit to wrongdoing. However, the settlement agreement provides for monetary penalties. This case is SEC v. Sycamore Networks, Inc., Frances M. Jewels, Cheryl E. Kalinen, and Robin A. Friedman, U.S. District Court for the District of Massachusetts, D.C. No. 08-CA-11166-DPW.

7/2. The Federal Communications Commission (FCC) released a document [11 pages in PDF] titled "Report on Informal Consumer Inquiries and Complaints: 4th Quarter Calendar Year 2007", and a second document [11 pages in PDF] titled "Report on Informal Consumer Inquiries and Complaints: 3rd Quarter Calendar Year 2007".

7/1. The Federal Communications Commission (FCC) published in its web site the text [6 pages in PDF] of FCC Chairman Kevin Martin's June 17, 2008, speech at the OECD Ministerial Meeting on the Future of the Internet Economy in Seoul, Korea. He stated that "Every economy must make its own domestic decision on broadband policy. My experience has been that the competitive marketplace, not regulation, promotes the greatest investment in and most sustainable access to broadband."

DC Circuit Orders FCC to Explain Intercarrier Compensation Rules for ISP Bound Traffic, Under Pain of Vacatur

7/8. The U.S. Court of Appeals (DCCir) issued its opinion [26 pages in PDF] in In Re Core Communications, granting the petition for writ of mandamus, ordering the Federal Communications Commission (FCC) to articulate a valid legal justification for its rules governing intercarrier compensation for telecommunications traffic bound for internet service providers (ISPs) by November 5, 2008, and if the FCC fails to do so, vacating these rules the day after.

Summary. Core Communications is a competitive local exchange carrier (CLEC) that has long been challenging the FCC's 2001 rules. The Court of Appeals rejected these rules in 2002. However, merely remanded without vacating, in order to allow the FCC the opportunity to justify its rules. The FCC has delayed for six years. The FCC has also failed to follow through on its bill and keep rulemaking proceeding, which was initiated with the 2001 order.

The Court of Appeals wrote in a sometimes blunt opinion that it has lost its patience with the FCC. It added that "the FCC’s delay in responding to our remand is egregious" and "There will be no extensions of that deadline".

The Court of Appeals wrote that "we grant the writ of mandamus and direct the FCC to respond to our 2002 WorldCom remand by November 5, 2008. That response must be in the form of a final, appealable order that explains the legal authority for the Commission’s interim intercarrier compensation rules that exclude ISP-bound traffic from the reciprocal compensation requirement of § 251(b)(5). No extensions of this deadline will be granted. The rules are hereby vacated on November 6, 2008, unless the court is notified that the Commission has complied with our direction before that date. This panel of the court will retain jurisdiction over the case to ensure compliance with our decision."

History. The FCC adopted its initial rules in 1996. In March of 2000, the Court of Appeals vacated the FCC's first rules regarding intercarrier compensation for telecommunications traffic bound for ISPs. See, March 24, 2000, opinion in Bell Atlantic v. FCC, which is also reported at 206 F.3d 1.

The FCC adopted new rules on remand in 2001. See, the FCC's Order on Remand and Report and Order [72 pages in PDF], adopted on April 18, 2001, and released on April 27, 2001. This remand order is FCC 01-131 in CC Dockets Nos. 96-98 and 99-68. See also, story titled "Reciprocal Compensation" in TLJ Daily E-Mail Alert 170, April 20, 2001.

Numerous parties filed petitions for review of these rules. In May of 2002 the Court of Appeals again rejected the FCC's rules. See, May 3, 2002 opinion of the Court of Appeals in WorldCom v. FCC, which is reported at 288 F.3d 429. The Supreme Court denied certiorari, at 538 U.S. 1012 (2003). See also, story titled "DC Circuit Remands FCC Bill and Keep Order" in TLJ Daily E-Mail Alert No. 425, May 6, 2002.

However, the Court of Appeals merely remanded to the FCC. It did not vacate the 2001 rules. It gave the FCC the opportunity to state a valid legal basis for its rules. Over six years after that opinion, the FCC has yet to do so.

Core filed a petition for writ of mandamus, seeking an order compelling the FCC to comply with the 2002 opinion in WorldCom. The Court of Appeals dismissed that petition without prejudice in 2005.

Core filed a second petition for writ of mandamus in 2007, which the Court of Appeals has granted in the just released opinion.

Also, Core filed a petition for forbearance with the FCC on July 14, 2003. Core sought forbearance from application of the FCC's interim rules. (See, "Statute and Rules" section below.) The FCC denied that petition in part. Core filed a petition for review with the Court of Appeals. See, Court of Appeals' June 30, 2006, opinion [28 pages in PDF] in In Re Core Communications, which is reported at 455 F.3d 267, and story titled "DC Circuit Denies Petitions for Review in Case Regarding Forbearance from Application of Intercarrier Compensation Rules for ISP Bound Traffic" in TLJ Daily E-Mail Alert No. 1,406, July 7, 2006.

Core later filed a second forbearance petition with the FCC in 2006, which the FCC denied, and which is now the subject of a petition for review pending before the Court of Appeals.

Statute and Rules. 47 U.S.C. § 251(b)(5), which was enacted as part of the Telecommunications Act of 1996, provides that local phone companies must compensate each other for handling each other's local calls. It requires that they "establish reciprocal compensation arrangements for the transport and termination of telecommunications."

The Court of Appeals explained that "before high-speed broadband connections (such as cable modem and digital subscriber line (DSL) service) became widely available, consumers generally gained access to the Internet through “dial-up” connections provided by local telephone companies. Under the dial-up method, a consumer uses a line provided by a local exchange carrier (LEC) -- usually an incumbent local exchange carrier (ILEC) -- to dial the local telephone number of an Internet service provider (ISP), which then connects the call to the Internet. Typically, the ISP does not subscribe to the ILEC, but instead subscribes to another LEC -- a competitive local exchange carrier (CLEC) -- that interconnects with the incumbent. Accordingly, a consumer who dials up to the Internet usually obligates an originating ILEC to transfer the call to a CLEC, which then delivers the call to the ISP. Core is a CLEC." (Parentheses in original.)

It added that "If ISP-bound traffic were governed by § 251(b)(5), reciprocal compensation arrangements would be required for the ILEC-to-CLEC hand-off just described, and ILECs would be required to compensate CLECs -- like Core -- for completing their customers’ calls to ISPs."

The FCC's 2001 rules, which remain in effect, provide that calls delivered to ISPs are not subject to the mandatory reciprocal compensation obligations of §251(b)(5). The FCC asserted as authority §251(g). (The 2002 WorldCom opinion rejected this assertion of authority.)

The rules also imposed an "interim" intercarrier compensation regime for ISP bound traffic. Four interim provisions regarding rates caps, the mirroring rule, growth caps, and the new markets rule, are the subject of Core's challenges.

The FCC simultaneously initiated a rule making proceeding to consider whether the FCC should replace existing intercarrier compensation schemes with a bill and keep regime. The FCC wrote in its 2001 order that with a bill and keep regime "neither of two interconnecting networks charges the other for terminating traffic that originates on the other network. Instead, each network recovers [its costs] from its own end-users." (Brackets added.)

This proceeding languishes at the FCC.

Writ of Mandamus. The Court of Appeals concluded that a writ of mandamus is appropriate in this case.

It wrote that "In this case, we are faced with the agency’s failure -- for six years -- to respond to our own remand. In so doing, the agency has effectively nullified our determination that its interim rules are invalid, because our remand without vacatur left those rules in place. Moreover, until the FCC states its explanation for its interim rules in a final order, Core cannot mount a challenge to those rules. In this way, the FCC insulates its nullification of our decision from further review."

Meanwhile, the FCC continues to "enforce rules for which it has articulated no lawful basis".

The FCC argued in its brief that it "is conducting a rulemaking proceeding in which it is considering comprehensive, industry-wide reforms to the system of intercarrier compensation" and that "this broad rulemaking will, among other things, address the issues raised by this Court's remand in WorldCom, Inc. v. FCC". The FCC also asserted that "That still active proceeding has not been subject to any unreasonable delay." See, FCC's brief [29 pages in PDF] in opposition to petition for writ of mandamus, filed on December 27, 2007.

The Court of Appeals added that "counsel suggests that the Commission is on the brink of concluding its rulemaking and responding to our remand", and it recited various last minute promises and press releases.

"We have heard this refrain before", wrote the Court. "At some point, promises are no longer enough, and we must end the game of ``administrative keep-away.´´"

The Court of Appeals continued to describe the FCC with disrespect rarely found in opinions of the Court of Appeals. "Having repeatedly, and mistakenly, put our faith in the Commission, we will not do so again. If the FCC cannot, within six months, explain its legal authority for the interim rules, we can only presume that this is because there is in fact no such authority."

The FCC also argued that the Court of Appeals should defer consideration Core Communications' petition for writ of mandamus until it resolves Core Communications' petition for review of the FCC's denial of its petition for forbearance from 47 U.S.C. §§ 251(g) and 254(g) and implementing rules. That is App. Ct. No. 07-1381. See also, FCC brief [61 pages in PDF] filed on May 19, 2008.

The Court of Appeals rejected this argument.

Judge Griffith wrote in his concurring opinion that the Court of Appeals helped to create this "mess" by issuing an "open-ended remand without vacatur" back in 2002.

"Remand without vacatur is common in this circuit", wrote Griffith. "But experience suggests that this remedy sometimes invites agency indifference." He urged "future panels to consider the alternatives to the open-ended remand without vacatur."

This case is In Re Core Communications, Inc., U.S. Court of Appeals for the District of Columbia Circuit, App. Ct. No. 07-1446, an petition for writ of mandamus to the FCC. Judge Garland wrote the opinion of the Court of Appeals, in which Judges Tatel and Griffith joined. Judge Griffith also wrote a concurring opinion.

FCC Releases Report and Order in CMAS Proceeding

7/8. The Federal Communication Commission (FCC) adopted and released its Second Report and Order and Further Notice of Proposed Rulemaking [40 pages in PDF] in its proceeding titled "In the Matter of The Commercial Mobile Alert System".

This item implements Sections 602(c) and 602(f) of the Warning, Alert and Response Network (WARN) Act. The WARN Act was enacted in late 2006 a part of the port security bill. It establishes a process for commercial mobile service providers to voluntarily elect to transmit emergency alerts. See also, stories titled "Bush Signs Port Security Bill" in TLJ Daily E-Mail Alert No. 1,469, October 16, 2006, and "House and Senate Approve Port Security Bill With Tech Provisions" in TLJ Daily E-Mail Alert No. 1,461, October 4, 2006.

The R&O portion of this item requires non-commercial educational (NCE) and public broadcast television stations "to install equipment and technologies that will provide these licensees/permittees with the ability to enable the distribution of geo-targeted CMAS alerts to participating CMS providers".

It also requires participating Commercial Mobile Service (CMS) providers "to participate in required monthly testing and additional periodic testing of the interface between the Federal Alert Gateway and the participating CMS Provider Gateway."

The NPRM portion of this item seeks public comments regarding whether the FCC "should adopt rules that require NCE and public broadcast television station licensees and permittees to test the equipment that they are required to install pursuant to the rules adopted in the Second Report and Order." It also seeks comments on "how any such testing rules should be implemented".

The FCC adopted and released its Notice of Proposed Rulemaking (NPRM) [PDF] on December 14, 2007. It is FCC 07-214 in PSHS Docket No. 07-287.

The just released item is FCC 08-164 in PSHS Docket No. 07-287.

Initial comments will be due 30 days after publication of a notice in the Federal Register. Reply comments will be due within 45 days. As of the July 10, 2008, issue of the Federal Register, this publication had not occurred.

People and Appointments

7/8. Federal Communications Commissioner (FCC) member Deborah Tate named Greg Orlando to be her legal advisor for wireline issues, broadband, and universal service. Orlando was previously Legislative Director and Counsel to Rep. Mike Ferguson (R-NJ), who is a member of the House Commerce Committee (HCC) and its Subcommittee on Telecommunications and the Internet. Before that, he worked for Rep. John Doolittle (R-CA). See, FCC release.

7/8. Carol Haave was appointed Assistant Secretary for International Affairs at the Department of Homeland Security (DHS). See, DHS release. This appointment does not require Senate confirmation.

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7/8. The House Rules Committee adopted a rule for consideration of HR 5811 [LOC | WW], the "Electronic Message Preservation Act". It is a closed rule; no amendments can be offered. This bill is on Rep. Hoyer's schedule for July 9.

7/8. The Government Accountability Office (GAO) released a report [74 pages in PDF] titled "Federal Records: National Archives and Selected Agencies Need to Strengthen E-Mail Management". This report is based on the GAO's examination of e-mail recordkeeping processes at the Environmental Protection Agency, the Federal Trade Commission (FTC), Department of Homeland Security (DHS), and Department of Housing and Urban Development (DHUD). The GAO noted that "The four agencies reviewed generally managed e-mail records through paper-based processes, rather than using electronic recordkeeping. ... The practice at the units was to include e-mail printouts in the case files if the e-mails contained information necessary to document the case -- that is, record material."

11th Circuit Affirms in CBS v. Echostar

7/7. The U.S. Court of Appeals (11thCir) issued its opinion [21 pages in PDF] in CBS v. Echostar, affirming the judgment of the District Court.

The Court of Appeals held that EchoStar is not prohibited under 17 U.S.C. § 119(a)(7)(B)(i) from leasing its transponder to the National Programming Service (NPS) under a lease agreement that allows the NPS to retransmit distant network programming to eligible subscribers.

This case is CBS Broadcasting, Inc., et al. v. Echostar Communications Corp., U.S. Court of Appeals for the 11th Circuit, App. Ct. No. 07-10178, an appeal from the U.S. District Court for the Southern District of Florida, D.C. No. 98-02651-CV-WPD.

Judge Wilson wrote the opinion of the Court of Appeals, in which Judges Cox and Bowman, sitting by designation, joined.

Report Addresses Regulatory Reform in US and Japan

7/7. The Office of the U.S. Trade Representative (OUSTR) released a report [92 pages in PDF] titled "Seventh Report to the Leaders on the U.S.-Japan Regulatory Reform and Competition Policy Initiative". Much of the report addresses technology related topics.

The OUSTR also issued a summary [5 pages in PDF] of report's section on reform in Japan.

The report addresses, among other topics, reform in Japan of laws, regulations and policies related to telecommunication competition, wireline interconnection, mobile interconnection, trade in communications equipment, electronic commerce, patent, copyright and trademark protection, privacy, health information technology, government information technology procurement, and competition policy and the Japan Fair Trade Commission (JFTC).

The section of the report that addresses reform in the U.S. addresses the Committee on Foreign Investment in the United States (CFIUS), patent law reform, export regulation, communications, communications equipment, copyright, access control provisions of the DMCA, spam e-mail, the REAL ID Act, and other topics.

Susan SchwabSusan Schwab (at right), the U.S. Trade Representative, stated in a release that "An aggressive and continuous commitment to regulatory reform is vital for Japan's ability to boost economic growth and open its economy for the benefit of all Japanese citizens".

She added that "Increasingly, however, new ideas to remove unnecessary regulation or improve Japan’s business environment are being challenged by defenders of the status quo.  It is critical for Japan to redouble its focus and implement new economic reforms that respond to Prime Minister Fukuda's call at Davos to further open and liberalize Japan's economy."

She did not comment in this release on unnecessary regulation in the US.

US President Bush and Japanese Prime Minister Fukuda, spoke at an event in Toyako, Japan, on July 6, 2008. See, transcript.

Prime Minister Fukuda stated that "On the economic aspects, the interdependence between Japan and the United States has grown closer than before. Since 2000, Japanese direct investment to the United States has increased approximately 30 percent; Japanese businesses in the United States have about 610,000 people on their payrolls. And U.S. direct investment in Japan also has increased approximately 60 percent."

President Bush said that "I've got two other subjects that I want to make sure we spend a fair amount of time on. One is the Doha Round. It's an opportunity for us, Mr. Prime Minister, to promote free and fair trade, and it's going to be an essential part of the development agenda."

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7/7. The U.S. Court of Appeals (8thCir) issued its opinion [5 pages in PDF] in US v. Hugh, affirming a criminal conviction and 18 month prison sentence for wiretapping in violation of 18 U.S.C. § 2511(1)(a). The defendant in this case, Richard Hugh, was a bail bondsman and bounty hunter searching for a defendant in another case who failed to appear in court, thereby causing forfeiture of the bond posted by Hugh. In an effort to locate the fugitive, and to recover the value of the forfeited bond, Hugh wiretapped the telephone of a friend of the fugitive. He affixed wiretapping equipment to the telephone box outside of her house. Neighbors observed the installation, and called police. This case is USA v. Richard A. Hugh, U.S. Court of Appeals for the 8th Circuit, App. Ct. No. 08-1033, an appeal from the U.S. District Court for the Western District of Missouri.

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