8/9. On August 9, 2005, President Bush made another recess appointment. The House and Senate are on recess until after Labor Day. He gave a recess appointment to Eric Edelman to be Under Secretary of Defense for Policy. See, White House release and DOD release. President Bush gave a recess appointment on August 1 to John Bolton.

However, for technology law issues, the most significant stalled nomination is that for the head of the Criminal Division at the Department of Justice (DOJ). President Bush nominated Alice Fisher back on March 29, 2005. See also, story titled "Bush to Nominate Alice Fisher to Head DOJ's Criminal Division" TLJ Daily E-Mail Alert No. 1,107, April 1, 2005. The Senate has not yet voted on her nomination.

The Criminal Division is responsible for many matters related to the CALEA, cybercrime, enforcement of intellectual property laws, wiretaps, and electronic surveillance, searches and seizures involving new information technologies.

Although, the delay of the Fisher nomination has nothing to do with technology related issues. There is a hold on the Fisher nomination that is related to the partisan politics of Guantanamo Bay. John Richter is the acting head of the Criminal Division.

Also, Deputy Attorney General James Comey is about to leave the DOJ. On May 24, 2005, President Bush picked Timothy Flanigan to replace him. See, "People and Appointments" column in TLJ Daily E-Mail Alert No. 1,142, May 25, 2005. He has had a hearing before the Senate Judiciary Committee (SJC). However, the SJC has not yet voted on his nomination.

When the Senate returns in September, the SJC and its members are likely to be occupied with the nomination of John Roberts to be a Justice of the Supreme Court. See, story titled "Bush Nominates John Roberts for Supreme Court" in TLJ Daily E-Mail Alert No. 1,178, July 20, 2005. Since Flanigan has experience in judicial confirmation battles, the President may have a special incentive to get him into office, and some Senate Democrats may have an incentive to keep him out.

In short, Fisher and Flanigan are both potential candidates for recess appointments.

8/9. The U.S. Court of Appeals (1stCir) issued its opinion in Liberty Cablevision of Puerto Rico v. Municipality of Caguas, appeals from two related cases regarding the collection of fees by multiple local franchising authorities.

Liberty CableVision of Puerto Rico provides cable service in Puerto Rico, including cable modem service. The municipalities of Caguas, Barceloneta and Las Piedras all have ordinances that impose a 5% annual fee on Liberty's gross revenues for use of the municipalities' rights of way. In addition, the Telecommunications Regulatory Board of Puerto Rico (TRB) has imposed an annual fee.

The Puerto Rico Legislative Assembly has designated the TBR as the local franchising authority under the Cable Act.

Liberty filed complaints in U.S. District Court (PR) against the municipalities seeking declaratory relief that the municipal ordinances are preempted by the Cable Act. The District Court reached opposite conclusions in the two cases.

On appeal, the Court of Appeals held that the municipal ordinances conflict with the Cable Act, and are preempted.

The municipalities also argued that since Liberty also provides cable modem service, it is a "telecommunications carrier" subject to fees under § 253 of the Telecommunications Act of 1996. The Court of Appeals rejected this argument, based on the June 27, 2005, opinion [59 pages in PDF] of the Supreme Court in NCTA v. Brand X

This case is Liberty Cablevision of Puerto Rico, Inc. v. Municipality of Caguas, et al., and consolidated appeals, U.S. Court of Appeals for the 1st Circuit, App. Ct. Nos. 04-1597, 04-2136, and 04-2137, appeals from the U.S. District Court for Puerto Rico. Judge Torruella wrote the opinion of the Court of Appeals, in which Judges Oberdorfer and Stahl joined.

8/8. Alberto Gonzales gave a speech in Chicago, Illinois, in which he discussed, among other topics, extending the sunsetted provisions of the PATRIOT Act.

The House and the Senate both approved bills in July that extend the sunsetted provisions. However, these are quite different bills. The Senate approved S 1389 on July 29, 2005. The House approved HR 3199 on July 21, 2005. See, story titled "House Approves PATRIOT Act Extension Bill" in TLJ Daily E-Mail Alert No. 1,180, July 22, 2005.

Gonzales (at right) said that "I am pleased that both the House and the Senate have voted to reauthorize key provisions of the PATRIOT Act and I look forward to them sending a bill to the President’s desk that does not undermine the ability of investigators and prosecutors to disrupt terrorist plots and combat terrorism effectively. I am committed to working with both the House and the Senate as we move toward the ultimate renewal of the Act."

He stated that "I've talked often about the reauthorization of this important law enforcement tool over the past several months. But the litany of misstatements and half-truths from others have complicated this debate and required a concerted effort to educate the American people -- and the bipartisan coalition in Congress who enacted this legislation -- about the singular importance of the PATRIOT Act."

"You've probably heard the arguments on both sides. Let me be straightforward: We are fighting terrorism with the tools and techniques provided for in the PATRIOT Act -- tools that have long been available to fight crime -- and we are doing so in a manner that protects our cherished rights and liberties. We are not interested in the reading habits of ordinary citizens -- as some have suggested", said Gonzales.

He continued that "Several provisions in the PATRIOT Act were set to expire in the event that the terrorist threat ended or changed, or in the event that the Justice Department did not use these tools in a lawful and responsible manner. As we know from the headlines, the threat has not expired; the Department has acted responsibly. And that's why everything that was right about the PATRIOT Act nearly four years ago is still right today. We still need the investigative tools to track potential terrorist activity and share information more quickly. Some have expressed concerns about encroachments on privacy and civil liberties. Count me as someone who is always concerned about such matters."

8/8. The Federal Communications Commission (FCC) released a heavily redacted text [103 pages in PDF] of its Memorandum Opinion and Order approving the merger of Sprint and Nextel, with conditions.

On August 3, 2005, the FCC announced, but did not release, this MOO. Also on August 3, the Department of Justice's Antitrust Division announced in a release that it has conducted an antitrust merger review, and "has closed its investigation". See, story titled "FCC and DOJ Approve the Merger of Sprint and Nextel" in TLJ Daily E-Mail Alert No. 1,188, August 4, 2005.

The FCC's public interest analysis includes a lengthy competition analysis. In addition, it includes a public interest analysis of "public safety" issues, including "E911 deployment", "CALEA implementation", and "homeland security".

The FCC concluded that "We do not find that the merger will benefit public safety." The text regarding public safety issues is incomplete. The MOO contains numerous redactions, including discussion of the FCC's analysis of the effect of the merger on "CALEA obligations".

Subsequent to the adoption of the Sprint Nextel MOO, the FCC adopted an order regarding CALEA obligations, and a separate policy statement that addresses "the needs of law enforcement". See, stories titled "FCC Amends CALEA Statute" in TLJ Daily E-Mail Alert No. 1,191, August 9, 2005, and "FCC Adopts a Policy Statement Regarding Network Neutrality" in TLJ Daily E-Mail Alert No. 1,190, August 8, 2005.

This MOO is FCC 05-148 in WT Docket No. 05-63.

8/9. The U.S. Court of Appeals (7thCir) issued its opinion in Bretford Manufacturing v. Smith System Manufacturing, a Lanham Act, 15 U.S.C. § 1125(a), case involving the production of computer tables in which Bretford Manufacturing alleges trade dress infringement and reverse passing off. The District Court held for Smith System Manufacturing. The Court of Appeals affirmed. This case is Bretford Manufacturing, Inc. v. Smith System Manufacturing Corporation, U.S. Court of Appeals for the 7th Circuit, App. Ct. No. 03-3932, an appeal from the U.S. District Court for the Northern District of Illinois, Eastern Division, D.C. No.  98 C 0287, Judge John Grady presiding. Judge Easterbrook wrote the opinion of the Court of Appeals, in which Judges Flaum and Williams joined.

8/9. The Federal Communications Commission (FCC) released the text [67 pages in PDF] of its Report and Order and Further Notice of Proposed Rulemaking in its proceeding titled "In the Matter of Biennial Regulatory Review – Amendment of Parts 1, 22, 24, 27, and 90 to Streamline and Harmonize Various Rules Affecting Wireless Radio Services". The FCC adopted this item on July 22, 2005, and released it on August 9, 2005 This item is FCC 05-144 in WT Docket No. 03-264. Comments on the FNPRM will be due 60 days after publication of a notice in the Federal Register, which has not yet occurred, and reply comments will be due 90 days after publication.

The House will not meet on Monday, August 1 through Monday, September 5. See, House calendar and Republican Whip Notice.

The Senate will not meet on Monday, August 1 through Monday, September 5. See, Senate calendar.

The Supreme Court is between terms. The opening conference of its October 2005 Term will be held on September 26, 2005.

9:00 AM - 5:00 PM. Day one of a two day workshop hosted by the National Institute of Standards and Technology (NIST) in support of the NIST's Software Assurance Metrics and Tool Evaluation (SAMATE) project. See, workshop web site and notice in the Federal Register, August 9, 2005, Vol. 70, No. 152, at Page 46147. Location: NIST North Building, 820 West Diamond Ave., Gaithersburg, MD.

3:05 PM. The Department of Homeland Security's (DHS) Homeland Security Advisory Council (HSAC) will meet by teleconference. The agenda includes receiving final report from the HSAC Private Sector Information Sharing Task Force. See, notice in the Federal Register, July 25, 2005, Vol. 70, No. 141, at Page 42583.

6:00 - 9:15 PM. The DC Bar Association will host a the second part of a continuing legal education (CLE) seminar titled "Software Patent Primer: Acquisition, Exploitation, Enforcement and Defense". The speakers will be Stephen Parker (Novak Druce), Brian Rosenbloom (Rothwell Figg Ernst & Manbeck), David Temeles (Temeles & Temeles), and Martin Zoltick (Rothwell Figg). The price to attend ranges from $95-$170. For more information, call 202-626-3488. See, notice. Location: D.C. Bar Conference Center, 1250 H Street NW, B-1 Level.

Deadline for every interconnected voice over internet protocol (VOIP) service provider to submit a report to the Federal Communications Commission (FCC) regarding the status of its obtaining from every one of its subscribers an acknowledgment of receipt of the FCC mandated statement regarding E911, and regarding the status of its distribution of the FCC mandated VOIP warning stickers. See, the order contained in the FCC's document titled "First Report and Order and Notice of Proposed Rulemaking" [90 pages in PDF], numbered FCC 05-116, adopted on May 19, 2005, and released on June 3, 2005. See also, the order contained in the FCC's document titled "Public Notice' [PDF], numbered DA 05-2085, and released on July 26, 2005. These orders were issued in FCC proceedings regarding extending elements of the regulatory regime for communications to internet protocol based services: "In the Matter of IP-Enabled Services", numbered WC Docket No. 04-36, and "E911 Requirements for IP-Enabled Service Providers", numbered WC Docket No. 05-196.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Further Notice of Proposed Rule Making (FNPRM) regarding advancing the date on which all new television receiving equipment must include the capability to receive over the air DTV broadcast signals from July 1, 2007, to a date no later than December 31, 2006. The FCC adopted and released this item on June 9, 2005. This item is FCC 05-121 in ET Docket No. 05-24. See, notice in the Federal Register, July 6, 2005, Vol. 70, No. 128, at Pages 38845 - 38848. See also, story titled "FCC Adopts Order and NPRM Regarding Its Digital Tuner Rules" in TLJ Daily E-Mail Alert No. 1,153, June 14, 2005.

9:00 AM - 1:00 PM. Day two of a two day workshop hosted by the National Institute of Standards and Technology (NIST) in support of the NIST's Software Assurance Metrics and Tool Evaluation (SAMATE) project. See, workshop web site and notice in the Federal Register, August 9, 2005, Vol. 70, No. 152, at Page 46147. Location: NIST North Building, 820 West Diamond Ave., Gaithersburg, MD.

Extended deadline to submit reply comments to the Federal Communications Commission (FCC) in its airborne cellular proceeding. The FCC adopted its notice of proposed rulemaking (NPRM) back on December 15, 2004. It is FCC 04-288 in WT Docket No. 04-435. See, story titled "FCC Announces NPRM on Cellphones in Airplanes" in TLJ Daily E-Mail Alert No. 1,039, December 16, 2004. The FCC extended the reply comment deadline by order numbered DA 05-1712, and dated June 23, 2005. See also, notice in the Federal Register, Volume 70, No. 133, at Pages 40276 - 40277.

Effective date of the Federal Communications Commission's (FCC) final rules implementing Section 207 of the Satellite Home Viewer Extension and Reauthorization Act of 2004. The FCC adopted its Report and Order on June 6, 2005, and released on June 7, 2005. It is FCC 05-119 in MB Docket No. 05-89. See, notice in the Federal Register, July 13, 2005, Vol. 70, No. 133, at Pages 40216 - 40225.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to the notice of proposed rulemaking (NPRM) portion of its order and NPRM regarding the extension of 911/E911 regulation to interconnected voice over internet protocol (VOIP) service providers. The FCC adopted, but did not release, this order and NPRM on May 19, 2005. The FCC released the text [90 pages in PDF] of this order and NPRM on June 3, 2005. See, story titled "FCC Releases VOIP E911 Order" in TLJ Daily E-Mail Alert No. 1,148, June 6, 2005, and story titled "FCC Sets Deadlines for Comments on VOIP NPRM" in TLJ Daily E-Mail Alert No. 1,167, July 5, 2005. See, FCC notice (DA 05-1905) [3 pages in PDF].

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Third Further Notice of Proposed Rule Making (NPRM), adopted on December 20, 2004, regarding whether to defer or eliminate the requirement in the rules that certain applications for equipment authorization received on or after January 1, 2005, specify 6.24 kHz capability. This item is FCC 04-292 in WT Docket No. 99-87 and RM-9332; See, notice in the Federal Register, June 15, 2005, Vol. 70, No. 114, at Pages 34726 - 34729.

Deadline to submit nominations of members to serve on the National Institute of Standards and Technology's (NIST) Advanced Technology Program Advisory Committee. See, notice in the Federal Register, July 29, 2005, Vol. 70, No. 145, at Page 43844.

Deadline to submit nominations of members to serve on the National Institute of Standards and Technology's (NIST) Visiting Committee on Advanced Technology. See, notice in the Federal Register, July 29, 2005, Vol. 70, No. 145, at Pages 43844-43845.

Deadline to submit nominations of members to serve on the National Institute of Standards and Technology's (NIST) Board of Overseers of the Malcolm Baldrige National Quality Award. See, notice in the Federal Register, July 29, 2005, Vol. 70, No. 145, at Pages 43845-43846.

Deadline to submit nominations of members to serve on the National Institute of Standards and Technology's (NIST) Judges Panel of the Malcolm Baldrige National Quality Award. See, notice in the Federal Register, July 29, 2005, Vol. 70, No. 145, at Pages 43846-43847.

Deadline to submit comments to the Department of Homeland Security's (DHS) Homeland Security Science and Technology Advisory Committee (HSSTAC) regarding its meeting of August 23-24, 2005. See, notice in the Federal Register, August 9, 2005, Vol. 70, No. 152, at Pages 46182 - 46183.

9:00 AM - 12:00 NOON. The Department of Homeland Security (DHS) will host a briefing on its new programs for acquiring information technology services and commodities. For more information, call 202 282-8010. Location: Ronald Reagan Auditorium.

2:00 - 4:00 PM. The Department of States' (DOS) International Telecommunication Advisory Committee (ITAC) will meet to prepare for the CITEL Permanent Consultative Committee I, Telecommunication Standardization. See, notice in the Federal Register, July 13, 2005, Vol. 70, No. 133, at Page 40414. Location: undisclosed. The DOS states that "Access to these meetings may be arranged by contacting Julian Minard at minardje at state dot gov.

2:00 - 4:00 PM. The Department of States' (DOS) International Telecommunication Advisory Committee (ITAC) will meet to prepare for ITU-T Study Group 3's Working Party on Charging and Accounting Principles. See, notice in the Federal Register, July 13, 2005, Vol. 70, No. 133, at Page 40414. Location: undisclosed. The DOS states that "Access to these meetings may be arranged by contacting Julian Minard at minardje at state dot gov.

Tech Law Journal publishes a free access web site and subscription e-mail alert. The basic rate for a subscription to the TLJ Daily E-Mail Alert is $250 per year. However, there are discounts for subscribers with multiple recipients. Free one month trial subscriptions are available. Also, free subscriptions are available for journalists, federal elected officials, and employees of the Congress, courts, and executive branch. The TLJ web site is free access. However, copies of the TLJ Daily E-Mail Alert are not published in the web site until one month after writing. See, subscription information page.

Contact: 202-364-8882.
P.O. Box 4851, Washington DC, 20008.

Privacy Policy
Notices & Disclaimers
Copyright 1998 - 2005 David Carney, dba Tech Law Journal. All rights reserved.