5/23. The House approved HR 32, the "Stop Counterfeiting in Manufactured Goods Act", by a voice vote. This bill amends the Criminal Code with respect to trafficking in counterfeit marks, including wrappers, boxes and stickers.

Rep. Joe Knollenberg (R-MI) and others introduced this bill on January 4, 2005. The House Judiciary Committee's (HJC) Subcommittee on Crime approved the bill on March 17. The full HJC approved the bill on April 13. See also, House Report No. 109-68.

The bill makes numerous changes to 18 U.S.C. § 2320, which pertains to "Trafficking in counterfeit goods or services"

For example, the bill amends § 2320(a) to impose criminal liability upon anyone who "intentionally traffics or attempts to traffic in labels, patches, stickers, wrappers, badges, emblems, medallions, charms, boxes, containers, cans, cases, hangtags, documentation, or packaging of any type or nature, knowing that a counterfeit mark has been applied thereto, the use of which is likely to cause confusion, to cause mistake, or to deceive".

Rep. Zoe Lofgren (D-CA), who represents a Silicon Valley district, explained during the floor debate that "Many counterfeit products are labeled with brand names or trademarks that consumers know and trust. However, under current law, trafficking in counterfeit labels is not illegal if the labels are not affixed to the counterfeit products. Counterfeiters have exploited this by importing the counterfeit labels and products separately, and then affixing the labels in the United States. This bill expands criminal penalties to include those who traffic in counterfeit labels and packaging. It also requires forfeiture of any property derived from the proceeds of the violation and requires restitution to the trademark owner."

The bill also provides that "Nothing in this section shall entitle the United States to bring a criminal cause of action under this section for the repackaging of genuine goods or services not intended to deceive or confuse." Rep. Lofgren commented that the bill "now includes language that will ensure that criminal sanctions do not reach legitimate businesses that repackage goods or services with no intent to deceive or cause confusion. The original bill left open the question of whether someone other than the manufacturer could affix marks to goods that could correctly identify the source. This confusion struck at the very heart of the parallel market in which third parties lawfully obtain goods and make them available in discount stores. Not only has this practice been upheld by the Supreme Court, but it also saves consumers billions of dollars each year."

This bill also provides for the forefeiture of "Any article bearing or consisting of a counterfeit mark used in committing a violation of subsection (a)" and "Any property used, in any manner or part, to commit or to facilitate the commission of a violation of subsection (a)".

Mike Zaneis of the U.S. Chamber of Commerce stated in a release that "Lawmakers have taken the essential step of ensuring that federal laws keep pace with the growing sophistication of counterfeiting activities in this country ... These criminal acts have significant personal, economic and social consequences and we must stop the trade in fake products from expanding."

The Senate has not approved this bill.

5/23. The House Commerce Committee's (HCC) Subcommittee on on Telecommunications and the Internet has scheduled a hearing for Thursday, May 26 at 11:30 AM on its discussion draft titled "DTV Transition Act of 2005".

This is a discussion draft. The bill has not yet been introduced. However, the HCC issued a release that describes the contents of this discussion draft.

The release states that the draft will "Require television broadcasters to cease transmitting programs in analog format by December 31, 2008."

The release also states that the draft imposes several requirements on the Federal Communications Commission (FCC). First, it states that the FCC would be required to "issue a report and order by December 31, 2006 on the final digital channel assignments for broadcasters, complete any reconsideration by July 31, 2007, and submit status reports to Congress every six months starting February 1, 2006 on the international coordination of the digital channel assignments with Canada and Mexico."

Second, it states that the FCC would be required to "educate consumers on the hard deadline and the options they will have to continue using analog televisions after the digital television transition."

Third, it states that the FCC would be required to "maintain the FCC's existing digital tuner-mandate deadlines for integrated television receivers that have 25-inch screens or larger, and to accelerate, to July 1, 2006, the deadline for televisions with 13- to 24-inch screens."

See, the FCC's Second Report and Order and Second Memorandum Opinion and Order [49 pages in PDF] in its proceeding titled "In the Matter of Review of the Commission's Rules and Policies Affecting the Conversion To Digital Television". It requires that 100% of units with screen sizes over 36 inches must include DTV tuners by July 1, 2005; 100% of units with screen sizes of 25 to 36 inches must include DTV tuners by July 1, 2006; and, 100% of units with screen sizes of 13 to 25 inches must include DTV tuners by July 1, 2007.

This FCC adopted this item on August 8, 2002. It is FCC No. 02-230 in Media Bureau Docket No. 00-39. See also, stories titled "FCC Mandates DTV Standards and Deadlines" and "CEA Will Appeal FCC DTV Order" in TLJ Daily E-Mail Alert No. 488, August 9, 2002; and story titled "DC Circuit Upholds FCC DTV Tuner Mandates Order" in TLJ Daily E-Mail Alert No. 768, October 29, 2003.

The HCC release also states that the discussion draft would "Require manufacturers to place labels on, and retailers to place signs adjacent to, analog-only televisions indicating that those televisions will need to be attached to a digital receiver, digital-to-analog converter box, or multichannel video service to continue receiving broadcast programming after December 31, 2008."

Finally, the release state that the draft would "Require cable operators to carry the primary video signal of digital must-carry broadcasters in the format broadcast. In addition to, but not in lieu of, such carriage, cable operators may convert a digital must-carry signal to analog anywhere between the head-end and the subscribers' premises so that the signal can be viewed on analog televisions. If cable operators do such conversion for any must-carry broadcaster in a market, they must do such conversion for all must-carry broadcasters in the market. The FCC may sunset the ``carry-one, carry all´´ obligation beginning Dec. 31, 2013. The FCC is authorized to create comparable regulations regarding satellite providers."

The release says nothing about broadcast flags or FCC authority to promulgate broadcast flag rules.

Rep. Fred Upton (R-MI), the Chairman of the Subcommittee on Telecommunications and the Internet, stated that "I am confident that at the end of the day, we will have a DTV bill that will deliver something of real value to American consumers as we approach the digital age. For nearly two months we have negotiated in absolute good faith with our Democrat counterparts and our hearing this week on the draft bill ensures that the process continues to move forward. We will continue to work on a bipartisan bill that I hope will enjoy widespread support on both sides of the aisle."

5/23. The Center for Democracy and Technology (CDT), and twenty-four other groups, wrote a letter [PDF] to Sen. Pat Roberts (R-KS) and Sen. Jay Rockefeller (D-WV), and the other members of the Senate Intelligence Committee, urging the Congress not to enact legislation that would give the Federal Bureau of Investigation (FBI) administrative subpoena power in national security investigations. The letter states that this "would allow the FBI to write its own search and disclosure orders with no judicial approval".

The letter states that "At the very time when there seems to be an emerging consensus around adding meaningful checks and balances to PATRIOT Act powers to protect against government abuse, ``administrative subpoenas´´ would represent a new, unchecked power. At the very time when the Attorney General is supporting amendments to strengthen judicial oversight of orders under Section 215 of the PATRIOT Act, authorization of  ``administrative subpoenas´´ would move radically in the opposite direction."

The Senate Intelligence Committee (SIC) will hold an open hearing on the USA PATRIOT Act on Tuesday, May 24 at 9:30 AM in Room 106 of the Dirksen Building. (The SIC has also scheduled a closed executive business meeting for Thursday, May 26 at 9:00 AM.)

James Dempsey of the CDT released his prepared testimony for the SIC in advance. He elaborates that "Intelligence investigations are special, in ways that make them preferable to the government, but also in ways that make them more dangerous to liberty than criminal investigations. First, intelligence investigations are broader. They are not limited by the criminal code. They can investigate legal activity. In the case of foreign nationals in the United States, they can focus solely on First Amendment activities. Even in the case of U.S. persons, they can collect information about First Amendment activities. In this context, the concept of ``relevance´´ has little meaning."

He adds that "intelligence investigations are conducted in much greater secret than criminal cases, even perpetual secret." Finally, he states that intelligence investigations do no culminate with criminal trials or administrative actions, which tend to expose abusive uses of investigatory powers.

Dempsey argues too that this is all important because new information technologies have resulted in a "storage revolution".

He writes that "a storage revolution is sweeping the field of information and communications technology. ISPs, websites and other online service providers are offering very large quantities of online storage, for email, calendars, photographs and even voicemail. Increasingly, ordinary citizens are storing information not in their homes or even on portable devices but on networks, under the control of service providers who can be served with compulsory process and never have to tell the subscribers that their privacy has been invaded."

5/23. The Supreme Court denied certiorari in Portland v. Qwest Corporation, Sup. Ct. 04-1260. See, Order List [9 pages in PDF] at page 3. This is a case involving 47 U.S.C. § 253 and local franchise fees on telecommunications carriers.

The District Court ruled that 7% municipal rights of way fees in Oregon do not violate Section 253. The Court of Appeals reversed in part, and remanded. This lets stand the opinion [19 pages in PDF] of the U.S. Court of Appeals (9thCir).

47 U.S.C. § 253(a) provides that "No State or local statute or regulation, or other State or local legal requirement, may prohibit or have the effect of prohibiting the ability of any entity to provide any interstate or intrastate telecommunications service."

However, 47 U.S.C. § 253(c) provides that "Nothing in this section affects the authority of a State or local government to manage the public rights-of-way or to require fair and reasonable compensation from telecommunications providers, on a competitively neutral and nondiscriminatory basis, for use of public rights-of-way on a nondiscriminatory basis, if the compensation required is publicly disclosed by such government."

The Court of Appeals remanded to the District Court because it "failed to conduct an individualized § 253 preemption analysis for each city's ordinances, and misapplied our holding in City of Auburn v. Qwest, 260 F.3d 1160 (9th Cir. 2001)".

The City of Portland declared victory when the Court of Appeals ruled. Its counsel stated in a release [PDF] that "This decision represents a significant legal victory for cities in Oregon ... Although the court has ordered the lower court to make more detailed findings concerning some aspects of local ordinances to determine whether or not they comply with requirements of federal law, the court has left intact the right to impose revenue-based fees. The scope of the upcoming review by the lower court has also been narrowed significantly."

See also, story titled "9th Circuit Rules in Qwest v. Portland" in TLJ Daily E-Mail Alert No. 996, October 14, 2004.

5/23. The Supreme Court issued its opinion [PDF] in Johanns v. Livestock Marketing Association, a case involving the issue of compelled speech. Although, the compelled speech issue in this case is much different from the compelled speech issues associated with the Communications Act and Federal Communications Commission (FCC) regulation. The Supreme Court vacated the judgment of the Court of Appeals.

In the present case, the U.S. Department of Agriculture (USDA) taxes the sale and importation of beef, and then uses tax revenues to advertise beef products, pursuant to the Beef Promotion and Research Act of 1985. Several cattlemen, and two associations, challenged the constitutionality of this tax under the free speech clause of the Constitution.

The U.S. District Court held that the statute unconstitutionally compels the cattlemen to subsidize speech to which they object. The Court rejected the USDA's argument that the tax survives First Amendment scrutiny because it funds only government speech.

The U.S. Court of Appeals (8thCir) affirmed. However, it held that government speech status is relevant only to First Amendment challenges to the speech's content, not to challenges to its compelled funding. It further held that compelled funding of speech may violate the First Amendment even if the speech in question is the government's.

The Supreme Court vacated the judgment of the Court of Appeals. It held that since the speech involved in this case is speech by the government, it is exempt from First Amendment scrutiny.

The concept of compelled speech is also present in various debates over communications and technology related issues, such as forced access to cable facilities, must carry, equal time, free time for candidates, election campaign advertising disclosures, and truth in billing.

5/23. The Supreme Court issued five opinions, none of which involve technology.

5/23. The Supreme Court denied certiorari in Metronet Services Corp. v. Qwest Corporation, Sup. Ct. No. 04-1259. See, Order List [9 pages in PDF] at page 3.

5/23. The Supreme Court announced that it "will take a recess from Monday, May 23, 2005, until Tuesday, May 31, 2005." See, Order List [9 pages in PDF] at page 9.

The House will meet at 9:00 AM for morning hour, and at 10:00 AM for legislative business. It will take up bills related to stem cell research, and HR 2419, the energy appropriations bill. See, Republican Whip Notice.

The Senate will meet at 9:450 AM. It will resume its consideration of the nomination of Judge Priscilla Owen to be a Judge of the U.S. Court of Appeals for the Fifth Circuit.

POSTPONED. 9:30 AM. The Senate Judiciary Committee has scheduled an executive business meeting. See, notice. The SJC frequently cancels meetings without notice. The SJC rarely follows its agenda. Press contact: Blain Rethmeier (Specter) at 202 224-5225, David Carle (Leahy) at 202 224-4242 or Tracy Schmaler (Leahy) at 202 224-2154. Location: Room 226, Dirksen Building.

9:30 AM. The Senate Intelligence Committee will hold another hearing on the USA PATRIOT Act. Location: Room 106, Dirksen Building.

10:00 AM. The House Ways and Means Committee will meet to mark up HJRes 27, a joint resolution withdrawing the approval of the U.S. from the Agreement establishing the World Trade Organization (WTO). Location: Room 1100, Longworth Building.

10:00 The Senate Appropriations Committee's Subcommittee on Commerce, Justice, State, and the Judiciary will hold a hearing on the proposed budget for FY 2006 for the Department of Justice. Attorney General Alberto Gonzales and FBI Director Robert Mueller will testify. See, notice. Location: Room 192, Dirksen Building.

10:00 AM. The Senate Finance Committee will hold a hearing on numerous pending nominations, including Shara Aranoff (to be a Member of the International Trade Commission) and Timothy Adams to be Under Secretary for International Affairs at the Department of the Treasury. Location: Room 628, Dirksen Building.

10:00 AM - 2:00 PM. The Federal Communications Commission (FCC) will hold a pre-auction seminar for the Lower 700 MHz Band Auction (Auction No. 60). Pre-register by May 20. See, FCC notice [PDF]. Location: FCC, 445 12th Street, SW.

12:00 NOON. BellSouth will host a news conference to release a study titled "Is Now the Time to Reform Telecom Laws?" For more information, contact Linda Paris at 202 365-3343. Location: Zenger Room, National Press Club, 529 14th St. NW, 13th Floor.

12:30 PM. Pat Mitchell, P/CEO of the Public Broadcasting System, will give a luncheon address. Location: Ballroom, National Press Club, 529 14th St. NW, 13th Floor.

POSTPONED. The Federal Communications Bar Association's (FCBA) will host a seminar on enforcement.

2:30 PM. The House Rules Committee will meet to adopt a rule for the consideration of HR 1815, the "National Defense Authorization Act FY 2006". This bill contains numerous technology related provisions. Location: Room H-32, Capitol Building.

Deadline to submit to the Federal Communications Commission (FCC) reply comments and oppositions to petitions to deny in its antitrust merger review proceeding (transfer of control of licenses) associated with the acquisition of MCI by Verizon. See, FCC Public Notice DA 05-762 in WC Docket No. 05-75.

The House will meet at 10:00 AM for legislative business. It will begin consideration of HR 1815, the "National Defense Authorization Act FY 2006". See, Republican Whip Notice.

8:15 AM. The ABA's Committee on Law & National Security will host a panel discussion titled "PATRIOT Debates: Experts Debate the Patriot Act". For more information, contact Holly McMahon at 202 662-1035 Location: Holeman Lounge, National Press Club, 529 14th St. NW, 13th Floor.

9:30 AM. The Senate Judiciary Committee has scheduled an executive business meeting. See, notice. The SJC frequently cancels meetings without notice. The SJC rarely follows its agenda. Press contact: Blain Rethmeier (Specter) at 202 224-5225, David Carle (Leahy) at 202 224-4242 or Tracy Schmaler (Leahy) at 202 224-2154. Location: Room 226, Dirksen Building.

9:30 AM. The Senate Homeland Security and Governmental Affairs Committee will hold a hearings titled "How Counterfeit Goods Provide Easy Cash for Criminals and Terrorists". See, notice. Location: Room 562, Dirksen Building.

10:00 AM. The Senate Banking Committee will hold a hearing on pending nominations, including that of Ben Bernanke to be a Member of the President's Council of Economic Advisers. See, notice. Location: Room 538, Dirksen Building.

12:00 NOON. The Federal Communications Bar Association's (FCBA) State and Local Practice Committee will host a brown bag seminar titled "Mergers and Consolidations in the Telecommunications Industry and their Impact on Competition". The speakers will be Robert Nelson (Commissioner of the Michigan Public Service Commission and Chairman of NARUC's Committee on Communications), Heather Gold (SVP of XO Communications), and Gary Phillips (SBC Communications). RSVP to Enrico (Erick) Soriano at esoriano at fw-law dot com. For more information, contact Enrico Soriano, J.G. Harrington at jharringto at dlalaw dot com, or Brad Ramsay at jramsay at naruc dot org. Location: Fleischman & Walsh, 1919 Pennsylvania Ave., NW, Sixth Floor.

2:30 PM. The Senate Judiciary Committee's Intellectual Property Subcommittee has scheduled a hearing titled "Piracy of Intellectual Property". See, notice. The SJC frequently cancels meetings without notice. Press contact: Blain Rethmeier (Specter) at 202 224-5225, David Carle (Leahy) at 202 224-4242 or Tracy Schmaler (Leahy) at 202 224-2154. Location: Room 226, Dirksen Building.

The House will meet at 10:00 AM for legislative business. It will continue its consideration of HR 1815, the "National Defense Authorization Act FY 2006". See, Republican Whip Notice.

9:30 AM. The House Judiciary Committee's (HJC) Subcommittee on Crime, Terrorism, and Homeland Security will hold another in its long series of oversight hearings on the USA Patriot Act (PA). This hearing is titled "Implementation of the USA PATRIOT Act: Sections 505 and 804". Section 505 of the PA pertains to national security letters. Section 804 of the PA pertains to jurisdiction over crimes committed at U.S. facilities abroad, and material witness provisions of the Criminal Code. The hearing will be webcast by the HJC. Press contact: Jeff Lungren or Terry Shawn at 202 225-2492. Location: Room 2141, Rayburn Building.

11:30 AM. The House Commerce Committee's (HCC) Subcommittee on on Telecommunications and the Internet will hold a hearing on its discussion draft of HR __, the "DTV Transition Act of 2005". This hearing will be webcast by the HCC. See, notice. Press contact: Larry Neal at 202 225-5735. Location: Room 2322, Rayburn Building.

2:00 PM. The Senate Appropriations Committee's Subcommittee on Commerce, Justice, State, and the Judiciary will hold a hearing on the proposed budget for FY 2006 for the Department of Commerce. Secretary of Commerce Carlos Gutierrez will testify. See, notice. Location: Room S-146, Capitol Building.

2:30 PM. The Senate Homeland Security and Governmental Affairs Committee's Subcommittee on Federal Financial Management, Government Information, and International Security will hold a hearing titled "An Assessment of Federal Funding for Private Research and Development". The witnesses will be Robin Nazzaro (Government Accountability Office), Brian Reidl (Heritage Foundation), and Charles Wessner (The National Academies). See, notice. Location: Room 562, Dirksen Building.

The House may meet at 10:00 AM for legislative business. It would continue its consideration of HR 1815, the "National Defense Authorization Act FY 2006". See, Republican Whip Notice.

Deadline to submit comments to the Bureau of Industry and Security (BIS) in response to its notice in the Federal Register pertaining to deemed exports. The BIS seeks comments regarding the report [64 pages in PDF] written by the Department of Commerce's (DOC) Office of Inspector General (OIG) titled "Deemed Export Controls May Not Stop the Transfer of Sensitive Technology to Foreign Nationals in the U.S.". See, Federal Register, March 28, 2005, Vol. 70, No. 58, at Pages 15607 - 15609.

Deadline to submit comments to the Copyright Office in response to its notice of proposed rulemaking (NPRM) regarding requiring eligible digital audio services availing themselves of the statutory licenses set forth in 17 U.S.C. §§ 112 and 114 to report their usage of sound recordings. See, notice in the Federal Register, April 27, 2005, Vol. 70, No. 80, at Pages 21704-21711.

Memorial Day.

The House will not meet on Monday, May 30 through Friday, June 3. See, House calendar.

The Senate will not meet on Monday, May 30 through Friday, June 3. See, Senate calendar.

The Federal Communications Commission (FCC) and other federal offices will be closed for Memorial Day. See, Office of Personnel Management's (OPM) list of federal holidays.

5/24. The Internal Revenue Service (IRS) published a notice in the Federal Register that recites and describes its temporary regulations relating to the computation and allocation of the credit for increasing research activities for members of a controlled group of corporations or a group of trades or businesses under common control. See, Federal Register, May 24, 2005, Vol. 70, No. 99, at Pages 29596-29607.

5/23. The Internal Revenue Service (IRS) published a notice in the Federal Register that recites and describes its temporary regulations relating to the filing of information returns by donees relating to qualified intellectual property contributions. See, Federal Register, May 23, 2005, Vol. 70, No. 98, at Pages 29450 - 29452. The IRS published a separate notice in the Federal Register that describes and sets the comment deadline (August 22, 2005) for its notice of proposed rulemaking (NPRM) regarding the filing of information returns by donees relating to qualified intellectual property contributions. See, Federal Register, May 23, 2005, Vol. 70, No. 98, at Pages 29460 - 29461.

5/23. The National Telecommunications and Information Administration (NTIA) released a report [53 pages in PDF] titled "World Radiocommunication Conferences: Recommendations for Improvement in the United States Preparatory Process". See also, NTIA release.

5/23. The House considered HR 1224, the "Business Checking Freedom Act of 2005", under suspension of the rules, on Monday afternoon, May 23. However, it postponed its roll call vote until Tuesday, May 24.

5/23. The Government Accountability Office (GAO) released a report [39 pages in PDF] titled "Information Security: Improving Oversight of Access to Federal Systems and Data by Contractors Can Reduce Risk". The report states that "the federal government relies extensively on contractors to provide IT services and systems" and that this reliance creates information security risks. For example, "malicious code can be inserted into agency software and systems". The report describes the information security risks, and identifies some things that federal agencies can do to mitigate the risks.

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