| William Maher to Head
Wireline Competition Bureau |
6/21. The Federal
Communications Commission (FCC) announced that Dorothy
Attwood, Chief of the Wireline
Competition Bureau, which was previously known as the
Common Carrier Bureau, will leave the FCC "this
summer". She will be replaced by William Maher.
Maher will be an oddity at the FCC. He is a lawyer who has a
background in technology. He has both bachelors and masters
degrees in electrical engineering. He also once worked at Bell
Labs.
Maher is now a partner in the law firm of Halprin Temple
Goodman & Maher. He has also worked at both the FCC and
the National
Telecommunications and Information Administration (NTIA).
Most recently, he represented the Multi Association Group (MAG)
in access charge reform proceedings before the FCC. He has
also represented the U.S.
Telecommunications Association (USTA). The USTA issued a release
in which it stated that its attorney is an "outstanding
choice". |
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| DC Circuit Modifies Opinion
in Fox v. FCC |
6/21. The U.S.
Court of Appeals (DCCir) issued its opinion
in Fox
v. FCC, granting the Federal Communications Commission's
(FCC) petition for rehearing, and modifying its previous
opinion, regarding the meaning of the word
"necessary" in Section 202(h) of the Telecom Act.
The underlying case pertains to FCC ownership rules. However,
this opinion only revises the original opinion as to the
standard to be applied by the FCC in its biennial reviews of
its ownership rules.
Summary. The FCC is required by statute to conduct
biennial reviews of its ownership rules. The statute requires
that it "shall determine whether any of such rules are
necessary in the public interest" and repeal those
sections that are no longer in the public interest. The FCC
conducted its first biennial review in 1998, but did not
repeal or modify its national TV station ownership rule (NTSO)
or cable broadcast cross ownership rule (CBCO) as a result.
Various parties, including Fox and Time Warner,
filed petitions for review with the Court of Appeals. The
Court applied this statutory language in its plain meaning in
its February 19, 2002 opinion.
(It held that the FCC's NTSO and CBCO both violate the
Administrative Procedure Act (APA) as arbitrary and
capricious, and Section 202(h) of the Telecom Act.)
The Court wrote, with respect to the standard of review to be
applied under Section 202, that: "Next, Time Warner
argues that the Commission applied too lenient a standard when
it concluded only that the CBCO Rule ``continues to serve the
public interest,´´ 1998 Report ¶ 102, and not that it was
``necessary´´ in the public interest. Again the Commission
is silent, but this time we agree with Time Warner; the
Commission appears to have applied too low a standard. The
statute is clear that a regulation should be retained only
insofar as it is necessary in, not merely consonant with, the
public interest."
The FCC filed a Petition
for Rehearing En Banc [40 pages in PDF] arguing that the
term "necessary" should not necessarily be construed
to mean "necessary"; and, if it is, this
"threatens to impose a continuing and unworkable burden
on the agency in carrying out its biennial review
responsibilities." The FCC argued that necessary means
"useful", not "indispensable".
The Court of Appeals concluded in its June 21 opinion that it
is not necessary to interpret the word "necessary".
It revised its February 19 opinion by deleting its
interpretation of the word "necessary". It wrote
that "We agree with the Commission that the subject
paragraph is itself not necessary to the opinion and should be
modified. The court's decision did not turn at all upon
interpreting ``necessary in the public interest´´ to mean
more than ``in the public interest´´: It was clear the
Commission failed to justify the NTSO and the CBCO Rules under
either standard."
Background. After its 1998 biennial review, the FCC
maintained its NTSO rule (47
C.F.R. § 73.3555(e)) and its CBCO rule (47
C.F.R. § 76.501(a)). Fox Television Stations and various
other TV networks and cable companies petitioned the Court of
Appeals for review of the FCC's decision not to repeal or
modify these two rules. The petitioners asserted that these
rules violate the Administrative Procedure Act (APA), § 202(h)
of the Telecom Act of 1996, and the First Amendment of the
Constitution.
The Statute. The statutory provision at issue was
enacted by the Congress in the Telecom Act of 1996. It
provides, at Section 202(h), that the FCC "shall review
its rules adopted pursuant to this section and all of its
ownership rules biennially as part of its regulatory reform
review under section 11 of the Communications Act of 1934 and
shall determine whether any of such rules are necessary in the
public interest as the result of competition. The Commission
shall repeal or modify any regulation it determines to be no
longer in the public interest."
February 19 Opinion. The Court rejected the First
Amendment argument. However, the Court of Appeals held:
"We conclude that the Commission's decision to retain the
rules was arbitrary and capricious and contrary to law. We
remand the national television station ownership rule to the
Commission for further consideration, and we vacate the cable/
broadcast cross ownership rule because we think it unlikely
the Commission will be able on remand to justify retaining
it."
Chief Judge Douglas
Ginsburg, writing for a three judge panel, found that the
FCC "has adduced not a single valid reason to believe the
NTSO Rule is necessary in the public interest, either to
safeguard competition or to enhance diversity. Although we
agree with the Commission that protecting diversity is a
permissible policy, the Commission did not provide an adequate
basis for believing the Rule would in fact further that cause.
We conclude, therefore, that the 1998 decision to retain the
NTSO Rule was arbitrary and capricious in violation of the APA."
The Court similarly held that the CBCO violates the APA. It
found that the FCC "failed to consider the increased
number of television stations now in operation, and it is
clear that the Commission failed to reconcile the decision
under review with the TV Ownership Order it had issued only
shortly before. We conclude, therefore, that the Commission's
diversity rationale for retaining the CBCO Rule is woefully
inadequate." The February 19 opinion is published at 280
F.3d 1027.
FCC Petition for Rehearing. The FCC wrote in its
petition for rehearing that "The panel held in that
decision that under the applicable statutory provision the
Commission applied ``too low a standard´´ in conducting its
biennial review of media ownership regulations and that under
the correct standard set forth in Section 202(h) of the 1996
Telecommunications Act, ``a regulation should be retained only
insofar as it is necessary in, not merely consonant with, the
public interest.´´ ... This holding, which can be read to
require a higher standard to retain an existing rule than to
adopt it in the first instance, imposes a substantial and
continuing burden on the agency that threatens administrative
paralysis. This result is not compelled by the language of the
statute or by its legislative history." (Citation to Fox
omitted.)
The FCC argued for "A less stringent interpretation of
the term ``necessary´´ ". It argued that the Court
should construe this word in its "statutory context"
rather than "in its most literal sense".
Conclusion. In its February 19 opinion, the Court
vacated the CBCO rule, but merely remanded the NTSO rule to
the FCC. In so doing, it gave a literal meaning to the word
"necessary". In its June 21 opinion, the Court
merely modified its February 19 opinion regarding the meaning
of the word "necessary". It left it undefined. The
February 19 opinion held the FCC to a high standard of review
in challenges to its ownership rules. The June 21 leaves
uncertain what the standard of review is. The Court also
denied petitions for review of intervenors. Its determinations
regarding the ownership rules stands. |
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| House Commerce Committee
Members Write Evans Re ICANN Reform |
6/20. House
Commerce Committee leaders wrote a letter to Commerce
Secretary Donald
Evans regarding "reform proposals being discussed
June 24-28, 2002 at the Internet
Corporation for Assigned Names and Numbers (ICANN) Board
of Directors meeting in Bucharest, Romania."
They wrote that ICANN "was based on four principles:
stability, competition, bottom-up coordination, and
representation. However, over the past four years that ICANN
has been in existence, we have seen few of these principles
come to fruition. To the contrary, we believe ICANN now lacks
the legitimacy needed to guide an international consensus
body."
The letter was signed by Rep. Billy Tauzin
(R-LA) and Rep. John
Dingell (D-MI), the Chairman and ranking Democrat on the
full Committee, and by Rep.
Fred Upton (R-MI) and Rep. Ed Markey (D-MA),
the Chairman and ranking Democrat on the Telecom and Internet
Subcommittee.
"ICANN's Mission Should be Clearly Defined," wrote
the four. "Regardless of how ICANN decides to spell out
its mission, there needs to be clear, definable, and
unalterable lines around the responsibilities of ICANN."
They also stated that "ICANN Must Be Accountable. One of
ICANN's greatest obstacles has been its complete lack of
clearly articulated decision-making processes. Any reform of
ICANN must address this lack of accountability. As a
non-governmental body responsible for managing a global
Internet resource, ICANN's operating procedures must be
transparent to any and all interested parties. This means far
more than posting decisions on a website. ICANN must establish
rules, not unlike those in the Administrative Procedures
Act, that provide interested parties with predictability.
Without defined notice and comment periods, established
decision criteria, and the application of such criteria to the
problem, petitioners are left with an ad hoc process. "
Finally, the letter states that further extensions of the Memorandum
of Understanding between the ICANN and the Commerce
Department's National
Telecommunications and Information Administration (NTIA)
should be earned. It states that "In November 1998, the
Department of Commerce entered into a Memorandum of
Understanding (MOU) with ICANN. Having been extended several
times, most recently in September 2001, the MOU is set to
expire on September 30, 2002. After monitoring ICANN's
activities for the last four years, we strongly believe that
the Department should only authorize a short term renewal of
the MOU unless and until ICANN can show that reforms,
necessary to limit its authority and provide for
accountability and transparency, have been implemented." |
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| GAO Finds FBI's Computers,
Software, and E-Mail Deficient |
6/21. David Walker, Controller General of the U.S.,
submitted testimony
[PDF] to the House
Appropriations Committee's Subcommittee on Commerce,
Justice, State, and the Judiciary, titled "FBI
Reoganization: Initial Steps Encouraging but Broad
Transformation Needed". He testified, among other things,
that the FBI is lacking in computer and communications tools,
and that this is hampering the FBI's ability to share
information.
He concluded that "Communications has been a longstanding
problem for the FBI. This problem has included antiquated
computer hardware and software, including the lack of a fully
functional e-mail system. These deficiencies serve to
significantly hamper the FBI's ability to share important and
time sensitive information with the rest of the FBI and across
other intelligence and law enforcement agencies."
Walker elaborated that "Sharing of investigative
information is a complex issue that encompasses legal
requirements related to law enforcement sensitive and
classified information and its protection through methods such
as encryption. It is also a cultural issue related to a
tradition of agents holding investigative information close so
as not to jeopardize evidence in a case. Whereas, in a more
proactive investigative environment, the need for more
functional communication is of paramount importance and will
be essential for partnering with other law enforcement
agencies and the intelligence community. Stated differently,
we do not believe the FBI will be able to successfully change
its mission and effectively transform itself without
significantly upgrading its communications and information
technology capabilities." (See, page 11.)
He also addressed encryption in a footnote. He wrote that
"Of equal concern to the FBI and other law enforcement
agencies is the use of commercially available, non-recoverable
encryption products by terrorists and others engaged in
serious criminal activity to prevent law enforcement from
effectively using encrypted information obtained through
electronic surveillances or seizure of electronic data. This
is attributable to the fact that law enforcement agencies
cannot always obtain the means necessary to decrypt the
encrypted information." (See, footnote 8.) |
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| DOJ Files Antitrust Suit
Against Wind River and MathWorks |
6/21. The Department of
Justice (DOJ) announced that it filed a complaint in U.S. District Court (EDVa)
against MathWorks and Wind River Systems
alleging violation of federal antitrust laws in connection
with an alleged agreement between the two companies that
eliminates competition.
The complaint alleges violation of Section 1 of the Sherman
Act. It alleges that the two companies were head to head
competitors for the development and sale of dynamic control
system design software tools. It further alleges that they
entered into an agreement that ended competition between the
two firms.
The DOJ also announced that it filed a proposed consent decree
that would settle the lawsuit against Wind River. See, DOJ
release. |
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| Federal Circuit Addresses
Collateral Estoppel in Patent Litigation |
| 6/21. The U.S. Court of Appeals (FedCir)
issued its opinion in Vardon
Golf v. Karsten Manufacturing. This is an
appeal from a grant of summary judgment in a patent
infringement suit involving golf clubs. The opinion of the
Court addresses the application of the doctrine of collateral
estoppel -- the concept that matters litigated by parties
in one proceeding are binding upon them in a subsequent
proceeding. However, Judge Dyk also wrote a concurring
opinion. The Federal Circuit follows the law of the
originating circuit on the matter of collateral estoppel. Dyk
questioned this. He also discussed generally when the Federal
Circuit should follow the law of the various circuits, and
when it should follow its own law. |
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| More News |
6/21. The Federal
Communications Commission (FCC) published a notice
in the Federal Register regarding its Notice of Proposed Rule
Making (NPRM) "regarding the sunset of the statutory
requirements under section
272 imposed on Bell Operating Companies (BOCs) when they
provide in-region, interLATA services". The FCC
"seeks comment on whether, and if so, under what
conditions, the structural and nondiscrimination safeguards
established in section 272 should be extended by the
Commission either generally or with respect to specific
states." Comments are due by July 22, 2002. Reply
comments are due by August 12, 2002. See, Federal Register,
June 21, 2002, Vol. 67, No. 120, at Pages 42211 - 42215.
6/20. California Governor Gray Davis signed into law Senate
Bill 2061, regarding electronic communications and
evidentiary privileges. The bill revises the law regarding
privileges (such as attorney client, doctor patient, and
clergyman penitent) and waiver of privilege. In particular,
the bill provides that "A communication between persons
in a relationship listed in subdivision (a) does not lose its
privileged character for the sole reason that it is
communicated by electronic means or because persons involved
in the delivery, facilitation, or storage of electronic
communication may have access to the content of the
communication". The bill was sponsored by Sen. Bill Morrow
(R - Oceanside). |
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Privacy
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Copyright 1998 - 2002 David Carney, dba Tech Law Journal. All
rights reserved. |
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| Monday, June 24 |
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.
The Senate will meet at 3:00 PM. It will resume consideration
of S 2514,
the Department of Defense Authorization bill.
10:00 AM - 1:00 PM. The FCC will hold
an en banc hearing on FCC broadcast and cable equal
employment opportunity rules. Location: Room TW-C305, FCC,
445 12th Street, SW.
Day one of a two day conference hosted by the Computer & Communications
Industry Association (CCIA) titled "2002 Washington
Caucus". Highlights include the following. 11:45 PM: USPTO Director James Rogan
will speak at the opening luncheon. 1:15 PM: Rep. David Dreier
(R-CA) will speak. 2:00 PM: Sen. Chuck Hagel (R-NE)
will speak. 2:50 PM: CCIA policy briefing. 3:30 PM: FTC
Commissioner Mozelle Thompson will speak. See, agenda
[PDF]. Location: Willard Hotel, 1401 Pennsylvania Ave., NW. |
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| Tuesday, June 25 |
The House will meet at 10:30 AM for morning hour and 12:00
NOON for legislative business. The House will likely take up
HR 4070, the Social Security Program Protection Act of 2002.
Day two of a two day conference hosted by the Computer & Communications
Industry Association (CCIA) titled "2002 Washington
Caucus". Highlights include the following. 7:45 AM: Sen. John Breaux (D-LA)
will be the breakfast speaker. 9:00 AM: Rep. Nancy Pelosi
(D-CA) will speak. 9:45 AM: Rep. Howard Berman
(D-CA) will speak. 10:45 AM. Rep. Rick Boucher
(D-VA) will speak. 12:00 PM: Glenn Hubbard (Council of Economic
Advisors) will be the luncheon speaker. 2:00 PM: Sen. Max Cleland (D-GA)
will speak. 2:45 PM: Marsha MacBride (FCC Chief of Staff) will
speak. 3:30 PM: Benjamin Wu (Commerce Dept.) will speak. 4:15
PM: Rep. Zoe Lofgren
(D-CA) will speak. See, agenda
[PDF]. Location: Willard Hotel, 1401 Pennsylvania Ave., NW.
9:00 AM. The House
Commerce Committee's Subcommittee on Oversight and
Investigations will hold a hearing on the proposal to
create a Department of Homeland Security. Location: Room
2123, Rayburn Building.
9:30 - 11:30 AM. The FCC's WRC-03
Advisory Committee, Informal Working Group 7: Regulatory
Issues and Future Agendas will meet. Location: Boeing Company,
1200 Wilson Blvd. Arlington, VA.
10:00 AM. The Senate
Judiciary Committee's Subcommittee on Technology,
Terrorism, and Government Information will hold a hearings on
the President's proposal for reorganizing homeland defense
infrastructure. See, notice.
Press contact: Mimi Devlin at 202 224-9437. Location: Room
226, Dirksen Building.
1:00 PM. The Senate
Commerce Committee's Subcommittee on Science, Technology,
and Space, and the House
Science Committee (HSC) will hold a joint hearing to
examine the use of science and technology to combat
terrorism. See, HSC
notice. Location: Room 2318, Rayburn Building.
4:00 PM. The House
Judiciary Committee's Subcommittees on Immigration, Border
Security, and Claims, and Crime, Terrorism, and Homeland
Security, will hold a joint oversight hearing titled The
Risk to Homeland Security From Identity Fraud and Identity
Theft. Webcast. Press contact: Jeff Lungren or Terry Shawn
at 202 225-2492. Location: Room 2141, Rayburn Building. |
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| Wednesday, June 26 |
The House will meet at 10:00 AM for legislative business.
8:30 AM - 2:00 PM. The Progressive
Policy Institute (PPI) will host a conference on President
Bush's proposal to establish a Department of Homeland
Security, including how technology and private sector
entrepreneurial talents can be tapped to help break down the
bureaucratic barriers to sharing information and assessing
threats. The scheduled speakers include Sen. Joe Lieberman
(D-CT), Rep. Ellen
Tauscher (D-CA), Rep.
James Moran (D-VA), Rob Atkinson (PPI's Technology &
New Economy Project), John Cohen (PPI), and Thomas Siebel
(Ch/CEO of Siebel Systems). See, PPI
notice. Location: The Hotel Washington, 515 15th Street,
NW.
9:30 AM. The Senate
Governmental Affairs Committee will hold a hearing to
examine the relationship between a Department of Homeland
Security and the intelligence community. Location: Room
342, Dirksen Building.
10:00 AM. The Senate
Judiciary Committee will hold a hearing to examine the
President's proposal for reorganizing our homeland defense
infrastructure. See, notice.
Press contact: Mimi Devlin at 202 224-9437. Location: Room
226, Dirksen Senate Office Building.
10:00 AM. The House
Commerce Committee's Subcommittee on Telecommunications
and the Internet will hold a hearing titled Area Code
Exhaustion: What are the Solutions? Webcast. Press
contact: Ken Johnson or Jon Tripp at 202 225-5735. Location:
Room 2322, Rayburn Building.
10:00 AM. The House
Commerce Committee's Subcommittee on Commerce, Trade, and
Consumer Protection will hold a hearing on HR __, the Financial
Accounting Standards Board Act. Webcast. Press contact:
Ken Johnson or Jon Tripp at 202 225-5735. Location: Room 2123,
Rayburn Building.
10:15 AM. The House
International Relations Committee will hold a hearing and
markup of HR __, the Homeland Security Act of 2002.
Webcast. Location: Room 2172 Rayburn Building.
10:30 AM. The House Armed
Services Committee will hold a hearing on the President's
proposal to create a new Department of Homeland Security
and its impact on the Department of Defense. Location: Room
2118, Rayburn Building.
11:30 AM. The American
Electronics Association (AeA) will hold a press briefing
to release a study titled Cyberstates 2002: A State by
State Overview of the High Technology Industry. Lunch will
be served. See, AeA
release. Location: AeA, 601 Pennsylvania Ave, NW, North
Building, Suite 600.
2:00 PM. The House
Judiciary Committee will hold a legislative hearing titled
The Proposal to Create a Department of Homeland Security.
Tom
Ridge, Director of the Office of Homeland Security, will
testify. Webcast. Press contact: Jeff Lungren or Terry Shawn
at 202 225-2492. Location: Room 2141, Rayburn Building.
6:30 - 8:30 PM. The FCBA's
Young Lawyers Committee and Georgetown University Law Center
(GULC) will hold a CLE seminar titled Accounting Issues for
Telecommunications Lawyers. For more information, contact
the GULC at 202 662-9890 or cle@law. georgetown.edu.
Location: Piper Marbury
Rudnick & Wolfe, 1200 19th Street, NW. |
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| Thursday, June 27 |
The House will meet at 10:00 AM for legislative business.
9:00 AM - 4:30 PM. The Agriculture Department's Rural Utilities
Service (RUS) will hold a meeting to receive public input
on "the challenges of deploying broadband services to
rural America, the successes, the role of competition in
providing access to rural areas". See, notice
in Federal Register. Location: Room 0348, South Building,
Agriculture Dept., 1400 Independence Ave., SW.
10:00 AM. The House
Judiciary Committee will hold a hearing titled Revisions
to the Attorney General's Investigative Guidelines.
Attorney General John Ashcroft
will testify. Webcast. Press contact: Jeff Lungren or Terry
Shawn at 202 225-2492. Location: Room 2141, Rayburn Building.
12:00 NOON - 1:30 PM. The FTC's Bureau of
Competition will hold a public workshop on merger
investigation best practices. This is the sixth workshop
of a seven part, five city, series. See, FTC release.
Location: FTC, Room 332, 600 Pennsylvania Avenue NW.
12:00 NOON. The Cato Institute
will host a panel discussion titled Antitrust Flies High:
Is the Orbitz Investigation Good News for Consumers? The
scheduled speakers are Gary Doernhoefer (Orbitz), James DeLong
(Competitive Enterprise Inst.),
Andrew Steinberg (formerly with Travelocity.com), Thomas
Lenard (Progress and Freedom
Foundation), and Robert Atkinson (Progressive Policy Institute).
Lunch will follow. Webcast. See, notice.
Location: Cato, 1000 Massachusetts Ave., NW.
1:00 PM. The Senate
Governmental Affairs Committee will continue its hearing
to examine the relationship between a Department of Homeland
Security and the intelligence community. Location: Room 342,
Dirksen Building.
2:00 PM. The Senate
Judiciary Committee will hold a hearing on pending
judicial nominations. See, notice.
Press contact: Mimi Devlin at 202 224-9437. Location: Room
226, Dirksen Building.
2:00 PM. The House
Judiciary Committee's Subcommittee on Courts, the Internet
and Intellectual Property will hold a hearing titled Unpublished
Judicial Opinions. Webcast. Press contact: Jeff Lungren or
Terry Shawn at 202 225-2492. Location: Room 2141, Rayburn
Building. |
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| Friday, June 28 |
The House will meet at 9:00 AM for legislative business.
8:30 - 11:00 AM. The Alliance
for Public Technology (APT) and the High Tech Broadband
Coalition (HTBC) will host a breakfast briefing titled From
Debate to Deployment: Changing the Broadband Reality. The
participants include FCC Commissioner Kathleen
Abernathy, who is scheduled to speak at 9:05 AM. Other
participants include Debbie Goldman (Communications Workers of
America), Allen Hammond (University
of Santa Clara School of Law), Edie Herman (Communications Daily),
Edward Neaf (Cambridge
Strategic Management Group), Paul Schroeder (APT), and
Gary Shapiro (Consumer
Electronics Association and HTBC). See, agenda. Press contact:
Matt Bennett at 202 263-2972 or mbennett @apt.org.
Location: Lowe's L'Enfant Plaza Hotel, 480 L'Enfant Plaza.
10:00 AM. The House
Judiciary Committee's Subcommittee on Commercial and
Administrative Law will hold an oversight hearing titled Administrative
Law, Adjudicatory Issues, and Privacy Ramifications of
Creating a Department of Homeland Security. Audio webcast.
Press contact: Jeff Lungren or Terry Shawn at 202 225-2492.
Location: Room 2141, Rayburn Building.
Deadline to submit comments to the FTC
in response to its Notice of Proposed Rulemaking to amend its Telemarketing
Sales Rule. The new rule would impose user fees on
telemarketers, and their seller or telemarketer clients, for
their access to the national do not call registry, if
one is implemented. See, notice
in Federal Register. |
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