| Sen. Lott Opposes Adelstein
Nomination to FCC |
3/15. Sen. Trent Lott
(R-MS) announced his opposition to the nomination of Jonathan
Adelstein to be a Commissioner of the Federal Communications Commission
(FCC). Sen. Tom Daschle
(D-SD) has recommended that President George Bush nominate
Adelstein for the position on the FCC recently vacated by
Gloria Tristani. By law, the President must appoint a second
Democrat. Adelstein is a staff assistant to Sen. Daschle.
President Bush has not yet formally nominated Adelstein.
On March 14, the Senate
Judiciary Committee voted to reject the nomination of U.S.
District Court Judge Charles Pickering to be a judge on the U.S. Court of Appeals
(5thCir), by a straight party line vote of 10 to 9.
Charles Pickering is currently a sitting federal judge in
Mississippi. He is also the father of Rep. Chip Pickering
(R-MS), who was previously a member of Sen. Lott's staff. He
is now a member of the House Commerce Committee,
and its Telecom and Internet Subcommittee.
Sen. Lott stated in the Senate that "I think the Senate
Judiciary Committee just participated in a miscarriage of
justice. I am very much concerned about the effect it is going
to have on the Senate, and on our relationship on both sides
of the aisle." See, Cong. Rec., March 14, 2002, at Page
S1915.
He continued that "Charles Pickering's son worked for me.
Chip Pickering is one of the finest young men I have known. He
was a missionary behind the Iron Curtain. He was my
legislative director, and a great legislator. He not only knew
the substance, but he knew the art of the possible. Senator
Fritz Hollings can tell you that we got the telecommunications
bill passed because of the brilliance of Congressman Chip
Pickering, the son of this nominee. This young man has now
worked day and night to try to help his dad get through this
unfair crucible -- now without success." Cong. Rec., at
1916.
"This political mugging will say a lot more about the
perpetrators than about their victim." said Sen. Lott.
"I am not going to let go of this."
However, Sen. Lott cited Adelstein's youth and inexperience as
reasons for opposing him.
Two of the current FCC Commissioners, Michael Powell and Kevin
Martin, were appointed to the FCC at a younger age -- with the
support of Sen. Lott. |
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| FCC Releases DR & NPRM
on Cable Internet Access |
3/15. The Federal
Communications Commission (FCC) released its Declaratory
Ruling and Notice of Proposed Rulemaking [PDF] addressing
the legal classification and the appropriate regulatory
framework for broadband access to the Internet over cable
system facilities.
The FCC announced that it had adopted this DR and NPRM at its
March 14 meeting. See also, March
14 FCC release. This is GN Docket No. 00-185 and CS Docket
No. 02-52.
It states that "we conclude that cable modem service, as
it is currently offered, is properly classified as an
interstate information service, not as a cable service, and
that there is no separate offering of telecommunications
service. In addition, we initiate a rulemaking proceeding to
determine the scope of the Commission's jurisdiction to
regulate cable modem service and whether (and, if so, how)
cable modem service should be regulated under the law
..."
The 75 page DR & NPRM reviews the relevant statutory
sections, the alternative regulatory classifications, the
arguments advanced by commenters, the relevant judicial
precedent, and various policy arguments. It states that
"The Communications Act does not clearly indicate how
cable modem service should be classified or regulated",
but nevertheless "conclude[s] that cable modem service as
currently provided is an interstate information service, not a
cable service, and that there is no separate
telecommunications service offering to subscribers or
ISPs."
Open Access. The DR & NPRM states that "If we
were to require cable operators to unbundle cable modem
service merely because they also provide cable telephony
service, we would in essence create an open access regime for
cable Internet service applicable only to some operators. We
believe it is more appropriate to examine the issue of open
access on a national basis involving all those Title VI cable
systems that choose to offer cable modem service, rather than
to divide and treat separately those that also have a common
carrier local telephony offering."
It adds that "we believe that many, if not most, such
cable operators would stop offering telephony if such an
offering triggered a multiple ISP access obligation for the
cable modem service. Because many cable operators would likely
withdraw from the telephony market, applying Computer II
in such circumstances would undermine the long delayed hope of
creating facilities based competition in the telephony
marketplace and thereby seriously undermine the goal of the
1996 Act to open all telecommunications markets to
competition. It would also disserve the goal of Section 706
that we ``encourage the deployment on a reasonable and timely
basis of advanced telecommunications capability to all
Americans ... by utilizing ... measures that promote
competition in the local telecommunications market, or other
regulating methods that remove barriers to infrastructure
investment.´´ "
AT&T v. Portland. The DR & NPRM attempts to
explain away the contrary opinion of the U.S. Court of Appeals
(9thCir) in AT&T
v. City of Portland, which held that cable Internet access
is a telecommunications service. The DR & NPRM states that
"While we are considering the broad issue of the
appropriate national framework for the regulation of cable
modem service, the Portland court considered a much narrower
issue -- whether a local franchising authority, whose
authority was limited to cable service, had the authority to
condition its approval of a cable operator’s merger on the
operator's grant of multiple ISP access." It also states
that "The Ninth Circuit’s decision was based on a
record that was less than comprehensive", and that the
FCC "was not a party to the case and did not provide its
expert opinion on this issue." Finally, it states that
"The Ninth Circuit did not have the benefit of briefing
by the parties or the Commission on this issue and the
developing law in this area." |
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| FCC Issues Release
Regarding § 214 Transfers |
3/14. The Federal
Communications Commission (FCC) announced that its has
"adopted rules to streamline review of applications for
section 214 authorization to transfer control of domestic
transmission lines." See, 47 U.S.C.
§ 214. The FCC issued a short
press release, but not a copy of the report and order.
This is Docket No. CC 01-150.
FCC Commissioner Michael Copps
wrote a dissent.
He stated that "the majority has decided to vest the
Bureau with the delegated authority to determine if any
transaction -- whether or not it falls within the presumptive
categories -- merits streamlined treatment or requires further
investigation. I do not support such an expansion of the
Bureau's delegated authority." |
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| GAO Reports on DISA
Planning |
3/15. The General Accounting
Office (GAO) issued a report [PDF]
titled "Information Technology: Defense Information
Systems Agency Can Improve Investment Planning and Management
Controls".
The Defense Information Systems
Agency (DISA) provides computing services,
telecommunications services, and acquisition services, on a
cost reimbursable basis. The DISA also operates and maintains
joint warfighting and related mission support command,
control, and communications systems funded by direct
appropriations.
The report addresses whether the DISA has effectively managed
development of its plan titled "A 500 Day Action Plan for
Supporting DoD Decision Superiority", released in March
of 2001. |
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| GAO Reports on DLA |
3/15. The General Accounting
Office (GAO) issued a report [PDF]
titled "Information Technology: DLA Needs to Strengthen
Its Investment Management Capability". The Defense Logistics Agency (DLA)
manages supply items and processes supply distribution
actions.
The report concludes that "Because IT investment
management has only recently become an area of management
focus and commitment at DLA, the agency's capability to
effectively manage its IT investments is limited. ... Until
DLA fully implements an effective IT investment management
process, it will not know whether its mix of investments best
meets its mission and business priorities."
The report makes two recommendations. "The first step
toward establishing effective investment management is putting
in place foundational, project level control and selection
processes. ... The second major step toward effective
investment management is to continually assess proposed and
ongoing projects as an integrated and competing set of
investment options." |
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| House to Consider Bill
Creating IT Worker Exchange Program |
3/18. The House will likely consider HR
3925, the "Digital Tech Corps Act of 2002", on
Wednesday or Thursday, March 20 or 21. The House Rules Committee
is scheduled to meet to adopt a rule for consideration of HR
3925 at 5:00 PM on Tuesday, March 19.
This bill was introduced by Rep. Tom Davis
(R-VA) on March 12, 2002. It is cosponsored by Rep. Dan Burton
(R-IN), the Chairman of the House Government Reform
Committee. The Committee marked up the bill on March 14.
HR 3925 would establish an exchange program between the
federal government and the private sector in order to promote
the development of expertise in information technology
management. It states that "unless action is taken soon,
there will be a crisis in the government's ability to deliver
essential services to the American people".
The bill states that "On request from or with the
agreement of a private sector organization, and with the
consent of the employee concerned, the head of an agency may
arrange for the assignment of an employee of the agency to a
private sector organization or an employee of a private sector
organization to the agency. An eligible employee is an
individual who (1) works in the field of information
technology management; (2) is considered an exceptional
performer by the individual's current employer; and (3) is
expected to assume increased information technology management
responsibilities in the future." |
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| FEC to Hold Hearing on
Campaign Activity on the Internet |
3/15. The Federal Election
Commission (FEC) will hold a public hearing on its Notice of
Proposed Rulemaking (NPRM) [PDF] regarding campaign
activity on the Internet on Wednesday, March 20. The witnesses
will be Robert Bauer (Perkins Coie), Alex Vogel (National
Republican Senatorial Committee), Laurence Gold (AFL-CIO), and
James Bopp (James Madison Center for Free Speech). See, FEC
notice.
The FEC is the agency charged with enforcing the Federal
Election Campaign Act (FECA), which regulates political
contributions and expenditures. While the FEC had previously
considered wide ranging regulation of political speech on the
Internet, this NPRM merely proposes to permit certain personal
political web sites, and to allow corporations and unions to
put certain hyperlinks and press releases in their web sites.
The FEC released this NPRM in September, 2001. See, TLJ
story of September 27. On October 3, 2001, the FEC
published a notice
in the Federal Register (See, October 3, 2001, Vol. 66, No.
192, at Pages 50358 - 50366.) |
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| FTC to Hold Hearings on
Merger Review Process |
3/15. The Federal Trade
Commission's (FTC) Bureau of Competition announced that it
plans to conduct a series of hearings in Chicago, Los Angeles,
New York, San Francisco, and Washington DC regarding
modifications to the FTC's investigations process and its use
of specific remedy provisions. See, FTC release.
The FTC describes these hearings as "brown bag"
"public workshops". It has not yet announced the
dates of these hearings. The FTC stated that seeks "input
from a broad range of interest groups including corporate
personnel, outside and in-house attorneys, economists,
consumer groups, and others who have participated in the FTC's
or Department of Justice Antitrust Division's merger review
process." |
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| USTR Zoellick Addresses
Free Trade and IPR |
3/14. U.S. Trade
Representative (USTR) Robert
Zoellick gave a speech
titled "Competing in the Global Economy: Five Ingredients
for Success" at the Conference on Productivity and
Competitiveness in Santa Marta, Colombia. He addressed free
trade generally, and protection of intellectual property
rights specifically.
He stated that there are "five key ingredients in the
recipe for building stronger economies and stronger countries:
open trade; education and innovation; the rule of law,
property rights, and effective governance; a modern
infrastructure; and an open, deregulated economy."
He stated that "In the modern knowledge based economy,
effective property rights must extend to the fruits of
intellectual labor. Patents encourage innovation. A climate of
innovation encourages research and development, as well as new
applications. Since most cutting edge businesses can only
prosper through continuous innovation, a failure to protect
intellectual property is like putting up a ``Keep Away´´
sign to the investments and businesses that will drive the
future."
He continued that "It is certainly worth noting that the
18th century drafters of the U.S. Constitution -- one of the
most successful political and economic compacts of all time --
took time to add to that very sparse document a specific
federal power: ``To promote the Progress of Science and useful
Arts, by securing for Limited Times to Authors and Inventors
the exclusive Right to their respective Writings and
Discoveries.´´ In 1790, the first U.S. government entrusted
the administration of its new patent laws to none other than
Thomas Jefferson. There is no doubt that from the start the
United States recognized the connection between intellectual
property and development."
He also addressed deregulation of services. "The capital
markets can also take on new vibrance -- and countries can
become more competitive -- with the deregulation of financial
services connected to telecom and information technology.
These services open the way for productivity increases, cost
reductions, and customized services as firms learn how to use
real-time information effectively. Moreover, this deregulation
is a ``force multiplier´´ for structural reforms and
liberalization. As financial markets deregulate and
intermediaries proliferate, the traditional power of banks as
the sole channel for intermediation is undermined, and a new
agent of change is unleashed: financial asset managers --
whether in the form of pension funds, insurance companies,
mutual funds, or others." |
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| IRS to Accept Electronic
Receipts for Charitable Contributions |
3/13. The Internal Revenue
Service (IRS) released a revised
version [PDF] of its Publication 1771, titled
"Charitable Contributions: Substantiation and Disclosure
Requirements", which now approves electronic receipts as
a method to acknowledge a donation to a public charity.
The Internal Revenue Code, requires, at 26 U.S.C.
§ 170(f)(8), that taxpayers obtain a written
acknowledgement from a public charity if they claim a tax
deduction based on a contribution of $250 or more.
Publication 1771 provides that a "donor is responsible
for obtaining a written acknowledgment from a charity for any
single contribution of $250 or more before the donor can claim
a charitable contribution on his/her federal income tax
return". It now also provides that "There are no IRS
forms for the acknowledgment. Letters, postcards, or computer
generated forms with the above information are acceptable. An
organization can provide either a paper copy of the
acknowledgment to the donor, or an organization can provide
the acknowledgment electronically, such as via an e-mail
addressed to the donor." |
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| DC Circuit Rules in CA v.
NLRB |
3/15. The U.S.
Court of Appeals (DCCir) issued its opinion
in Computer
Associates v. NLRB, setting aside an order of
the National Labor Relations
Board (NLRB) that Computer
Associates (CA) had discharged workers in violation of
labor law.
The NLRB determined that CA violated §§ 8(a)(1) and (3) of
the National Labor Relations Act, 29
U.S.C. §§ 158(a)(1) and (a)(3), by terminating a
subcontract with Cushman & Wakefield of Long Island to
provide engineers at CA's Islandia, New York, facility, and
thereby discharging the engineers in retaliation for their
union activities.
CA filed a petition for review of this order with the Court of
Appeals. The Court wrote: "Crucial to the Board's holding
was its finding that CA was a ``joint employer´´ of the
engineers. Because the engineers' union, Local 30 of the
International Union of Operating Engineers (Union), had
stipulated that Cushman was its sole employer and the Board
cited no changed circumstances after the stipulation to
support its finding that CA was a joint employer, we conclude
the Board's joint employer finding is not supported by
substantial evidence and we therefore grant CA's petition for
review." |
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| Monday, March 18 |
The House will meet at 2:00 PM in pro forma session only.
The Senate will meet at 3:00 PM to consider HR
2356, the campaign spending bill. At 5:30 PM the Senate
will consider the nomination of Randy Crane to be a judge of
the U.S.
District Court (SDTex).
9:30 AM. The U.S. Court of Appeals
(DCCir) will hear oral argument in Costa de Oro TV v.
FCC, No. 01-1153. Judges Ginsburg, Henderson and Tatel
will preside. (This is the second case on the schedule. 15
minutes per side has has been allotted.) Location: 333
Constitution Ave. NW.
10:00 AM - 12:00 NOON. The AEI Brookings Joint Center will
host a debate on the Tauzin Dingell bill and government
broadband policy. The speakers will be Tom Hazlett and Charles
Ferguson. Location: Falk Auditorium, Brookings, 1775 Mass.
Ave., NW.
12:00 NOON. Deadline to submit requests to Office of the U.S. Trade
Representative (USTR) to testify orally at its April 1
hearing on negotiation of a U.S. Singapore Free Trade
Agreement. See, notice
in the Federal Register.
Deadline to submit comments to the FCC in response
to its notice of proposed rulemaking (NPRM) regarding its
unbundling analysis under § 251
of the Communications Act and the identification of specific
unbundling requirements for incumbent local exchange carriers
(ILECs). The FCC adopted this NPRM at its December 12 meeting.
This is CC Docket No. 01-338. See, notice
in the Federal Register. Note: SBC submitted a request
for extension of deadline [PDF] on March 11. |
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| Tuesday, March 19 |
The House will meet at 12:30 PM for morning hour and 2:00 PM
for legislative business. No votes are expected before 6:30
PM. The House will consider a number of measures under
suspension of the rules.
9:30 AM - 4:30 PM. The FTC and the Department
of Justice (DOJ) Antitrust
Division will continue their joint hearings titled "Competition
and Intellectual Property Law and Policy in the Knowledge
Based Economy." From 9:30 AM until 12:00 NOON, there
will be presentations on "Business Perspectives on
Patents". From 1:30 until 4:30 PM, there will be
presentations on "Business Perspectives on Patents:
Biotech and Pharmaceuticals". See, agenda.
Location: Room 432, FTC, 600 Pennsylvania Ave., NW.
10:00 AM. The Senate
Appropriations Committee's Subcommittee on Commerce,
Justice, State, and the Judiciary will hold a hearing on the
proposed budget estimates for FY 2003 for the FTC,
and other agencies. FTC Chairman Timothy Muris will testify.
Location: Room 138, Dirksen Building.
12:00 NOON. The FCBA's
Executive Committee will meet.
1:00 - 2:15 PM. The Internet Committee of the National Association of Attorneys
General (NAAG) will meet. (The NAAG spring meeting is
taking place from March 19-22.) Location: Salon E, Ballroom
Level, Marriott Hotel, Metro Center.
5:00 PM. The House Rules
Committee will meet to adopt a rule for consideration of HR
3925, the "Digital Tech Corps Act of 2002".
Location: H-312, The Capitol. |
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| Wednesday, March 20 |
9:30 AM. The Senate
Commerce Committee will hold a hearing on competition
in the local telecommunications marketplace. Sen. Ernest Hollings
(D-SC) will preside. Location: Room 253, Russell Building.
9:30 AM - 4:30 PM. The FTC and the Department
of Justice (DOJ) Antitrust
Division will continue their joint hearings titled "Competition
and Intellectual Property Law and Policy in the Knowledge
Based Economy." From 9:30 AM until 12:00 NOON, there
will be presentations on "Business Perspectives on
Patents: Hardware and Semiconductors". From 1:30
until 4:30 PM there will be presentations on "Business
Perspectives on Patents: Software and the Internet".
See, agenda.
Location: Room 432, FTC, 600 Pennsylvania Ave., NW.
10:00 AM. The Federal Election
Commission (FEC) will hold a public hearing on its Notice of
Proposed Rulemaking (NPRM) [PDF] regarding campaign
activity on the Internet. The witnesses will be Robert
Bauer (Perkins Coie),
Alex Vogel (National Republican
Senatorial Committee), Laurence Gold (AFL CIO), and James
Bopp (James
Madison Center for Free Speech). See, FEC
notice. Location: FEC, 9th floor meeting room.
10:00 AM. The Senate
Judiciary Committee's Subcommittee on Technology,
Terrorism, and Government Information will hold a hearing on identity
theft and information protection. Howard Beales, Director
of the Federal Trade Commission's
(FTC) Bureau of Consumer Protection, will testify. Sen. Dianne Feinstein
(D-CA) will preside. Location: Room 226, Dirksen Building.
CANCELLED. 10:00
AM. The FCC's
Technological Advisory Council will hold a meeting. See, notice
in Federal Register. See, cancellation
notice in Federal Register. The next meeting is April 26;
see, FCC
notice of March 12.
12:15 PM. The FCBA's
Cable Committee will host a luncheon. The speaker will be Catherine
Bohigian, Legal Advisor to FCC Commissioner Kevin Martin.
The price to attend is $15. RSVP to Wendy Parish at wendy@fcba.org by 5:00 PM on
March 18.
12:30 PM. Roy Stewart will speak at a luncheon hosted
by the Association of Federal
Communications Consulting Engineers. Stewart is currently
Chief of the FCC's Mass Media Bureau; he will become Chief of
the Office of Broadcast License Policy in the new Media
Bureau. For more information, contact Noel Luddy at luddyen @aol.com or 301
299-2270. Location: Wyndham City Center Hotel, 1143 New
Hampshire Ave., NW.
1:30 - 2:15 PM. FTC Chairman Timothy
Muris will speak at the National
Association of Attorneys General's spring meeting.
Location: Marriott Hotel, Metro Center.
2:00 PM. The House
Appropriations Committee's Subcommittee on Commerce,
Justice, State, and the Judiciary will hold a hearing on the
proposed budget for FY 2003 for the USTR.
Location: Room H-309, The Capitol.
6:00 - 8:00 PM. The FCBA will
host a Continuing Legal Education (CLE) seminar titled Telecommunications
201. Location: Capital Hilton Hotel, 16th and K Streets,
NW. |
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| Thursday, March 21 |
8:30 AM - 12:00 NOON. The law firm of Steptoe & Johnson and
The Open Group will host a workshop titled "Liability and
Information Assurance: The Role of Law, Regulation, and Self
Regulation". The workshop will focus on allocating
liability for breaches of information security, and the
various roles that law, regulation, and private contractual
agreements can or should play in the allocation of
responsibility for information security failures. RSVP to salbertaz @steptoe.com.
For more information, contact mschneck @steptoe.com.
Location: 1330 Connecticut Ave., NW.
10:00 AM. The Senate
Appropriations Subcommittee's Subcommittee on Commerce,
Justice, State, and the Judiciary will hold a hearing on the
FY 2003 budgets for the FBI, INS, and the DEA. Location: Room
116, Dirksen Building.
10:00 AM. The House Financial
Services Committee will hold a hearing titled "The
Effects of the Global Crossing Bankruptcy on Investors,
Markets, and Employees". Location: Room 2220, Rayburn
Building.
12:15 PM. The FCBA's
Transactional Practice Committee will host a brown bag lunch
on satellite and other international telecommunications
transactions. RSVP to Brian Madden at 202 416-6770.
Location: Leventhal Senter
& Lerman, 2000 K Street, NW.
2:30 PM. The Senate
Commerce Committee's Subcommittee on Science, Technology,
and Space will hold hearing to examine federal research and
development issues. Location: Room 253, Russell Building.
3:30 PM. Margaret
Radin (Stanford Law School) will give a lecture titled
"Contract Today and Tomorrow: Binding Commitment in the
Networked World". Location: Georgetown University Law
Center, Faculty Lounge, 5th Floor, McDonough Hall, 600 New
Jersey Ave., NW.
8:00 PM. Deadline to submit applications to the NTIA
for Technology
Opportunity Program (TOP) grants for FY 2002. See, notice
in Federal Register. |
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