2/14. The Federal Communications Commission (FCC) released the text [34 pages in PDF] of its Notice of Proposed Rulemaking (NPRM) that addresses the practice of pretexting to obtain consumers' confidential phone records. The FCC adopted and announced this NPRM on February 10, 2006. The NPRM, but not the FCC's February 10 release [PDF], discloses that the FCC may expand its regulation of phone number privacy to include regulation of internet protocol (IP) enabled service providers, including voice over internet protocol (VOIP) service providers, e-mail service providers, instant messaging services, online gaming, and web browsing. The scope of the underlying statute is limited to "telecommunications carrier"s and "telecommunications service"s.

See also, story titled "FCC Adopts NPRM Regarding Privacy of Consumer Phone Records" in TLJ Daily E-Mail Alert No. 1,308, February 13, 2006.

The NPRM summarizes the August 30, 2005 petition for rulemaking filed by the Electronic Privacy Information Center's (EPIC) and comments received regarding that petition. The NPRM seeks comments on the nature of the problem, and on the EPIC's proposals for amending 47 U.S.C. § 222, which limits the use and dissemination by telecommunications carriers of customer proprietary network information (CPNI).

The notice states that "data brokers advertise the availability of cell phone records, which include calls to and/or from a particular cell phone number, the duration of such calls, and may even include the physical location of the cell phone."

In addition, it states that "many data brokers also claim to provide calling records for landline and voice over Internet protocol, as well as nonpublished phone numbers."

However, Section 222 applies to "telecommunications carriers". Moreover, the NPRM states that it pertains to "telecommunications carriers".

The NPRM does not assert, declare, or tentatively declare that the FCC also has authority to promulgate rules governing to the practices of information services providers or IP enabled services providers.

However, there is a sentence in the body of the report which seeks comments on this subject: "Should any requirements the Commission adopts in the context of the present rulemaking extend to VoIP service providers or other IP-enabled service providers?"

Also, at the end of the report, in the disclosures required by the Regulatory Flexibility Act of 1980 regarding the NPRM's possible economic impact on small business entities, the NPRM elaborates. It states that "Our action pertains to VoIP services, which could be provided by entities that provide other services such as email, online gaming, web browsing, video conferencing, instant messaging, and other, similar IP-enabled services." (See, page 27, paragraph 77.)

The NPRM also states that "The Commission has sought comment on related issues in the wireline Internet broadband access services rulemaking and the IP-Enabled Services proceeding and may take official notice of comments filed in those dockets." (See, footnote 70, at page 12.)

Hence, persons interested in whether or not the FCC regulates the privacy related practices of information service providers, or IP enabled services providers, will need to review, and respond to, not only comments filed in the present proceeding, but also the thousands of comments previously filed, or to be filed in the future, in these other long running FCC proceedings.

The FCC's proceeding titled "In the Matter of IP-Enabled Services" is numbered WC Docket No. 04-36. As of February 15, 2006, the FCC's web site contained 1,181 filed comments in that proceeding.

The FCC has several rulemaking proceedings pertaining to wireline internet broadband access services. These include CC Docket Nos. 02-33, 01-337, 95-20, and 98-10, and WC Docket No. 04-242. For example, in CC Docket No. 02-33, 3,354 comments had been filed with the FCC, and published in the FCC web site, as of February 15, 2006.

See also, the FCC's web page titled "Search for Filed Comments". The text of most of these comments is not searchable.

The FCC's NPRM does not identify any specific comments in other proceedings of which it may take official notice in the present proceeding. Nor does the NPRM provide an explanation of why promulgating rules in one proceeding, based upon comments filed in other proceedings, is consistent with traditional notions of open and transparent government rulemaking, or the Administrative Procedure Act (APA), and particularly 5 U.S.C. § 553.

Nor does the FCC's NPRM discuss the legal basis upon which the FCC might rely to regulate the privacy practices of IP enabled services. 5 U.S.C. § 553(b)(2) requires an agency to "reference the legal authority under which the rule is proposed".

Section 222 is a possible legal authority, but by its terms is limited to "telecommunications services". The FCC's broad doctrine of Title I ancillary authority might be another possibility.

The EPIC's petition for rulemaking addressed "telecommunications carriers". It did not request that the FCC amend its rules to cover information services or IP enabled services.

Initial comments will be due within 30 days of publication of a notice in the Federal Register. Reply comments will be due within 60 days of such publication. This rulemaking is treated by the FCC as a permit but disclose proceeding, pursuant to the FCC ex parte communications rules, which are codified at 47 C.F.R. §§ 1.200 et seq.

This proceeding is titled "In the Matter of Implementation of the Telecommunications Act of 1996: Telecommunications Carriers’ Use of Customer Proprietary network Information and other Customer Information; Petition for Rulemaking to Enhance Security and Authentication Standards for Access to Customer Proprietary Network Information". This NPRM is FCC 06-10 in Docket No. 96-115 and RM-11277.

2/14. The Office of the U.S. Trade Representative (USTR) released a report [29 pages in PDF] titled "U.S.-China Trade Relations: Entering a New Phase of Greater Accountability and Enforcement: Top-to-Bottom Review".

Rob Portman, the USTR, wrote in a release summarizing the report that "Despite three consecutive years of growing U.S. exports to China, our bilateral trade relationship with China today lacks equity, durability and balance in the opportunities it provides ... The time has come to readjust our trade policy with respect to China."

The report states that "there is concern that the U.S.-China trade relationship lacks balance in opportunity, as well as equity and durability, with China’s focus on export growth and developing domestic industries not being matched by a comparable focus on fulfilling market opening commitments and on the protection of intellectual property and internationally recognized labor rights."

It states that "Specific U.S. concerns include: continued Chinese barriers to some U.S. exports; failure to protect intellectual property rights" and "unreported and extensive government subsidies and preferences for its own industries".

It finds that "For the past 20 years, U.S. trade policy was focused principally on encouraging market-based reforms in China and bringing China into the international trading system." It recommends that now "U.S. trade resources and priorities should be readjusted to meet new challenges. Specifically, in addition to strengthening our current focus on China’s WTO compliance and adherence to international norms, this report urges that more focus be put on ensuring that: (1) the bilateral trade relationship offers more balanced opportunities and is equitable and durable; (2) U.S. trade policymaking is more proactive and informed by more comprehensive information regarding China’s economic trends and developments and stronger coordination within the Executive branch and between the Executive and Congressional branches; (3) China participates more fully in the global trading system as a responsible trading partner; ..."

The report also identifies a number of actions to be take by the Bush administration, including "Expanding U.S. trade policy and negotiating capacity in Beijing and other resources in China to more effectively pursue top priority issues, especially the protection of intellectual property rights", and "Increasing coordination with other trading partners on China trade issues of common interest, such as enforcement of intellectual property rights".

The USTR Portman (at right) also sent a letter [2 pages in PDF] to Rep. Charles Rangel (D-NY), the ranking Democrat on the House Ways and Means Committee.

He wrote that "Chinese exporters have benefited enormously from the openness of the U.S. market -- more than U.S. exporters have benefited from China's WTO accession. The disparity in opportunities is due in part to China's failure to honor certain commitments, including its failure to enforce intellectual property rights, its protection and support for certain domestic industries, and its refusal to fulfill certain market opening commitments, which have contributed to the record bilateral trade deficit."

Portman continued that "I believe we require a more vigorous enforcement effort with respect to China, and the dedication of resources to make such an effort effective. To that end, the report announces the creation of a China Enforcement Task Force at USTR, headed by a new Chief Counsel for China Trade Enforcement. Although unprecedented at USTR, I believe this kind of dedicated, country-specific enforcement team is needed to improve China's compliance with it obligations."

Sen. Charles Grassley (R-IA), the Chairman of the Senate Finance Committee (SFC), stated in a release that "I welcome today's report. There's a growing impatience in Congress with China’s slowness in addressing key issues, such as currency reform and the enforcement of intellectual property rights. More and more, members are introducing legislation to deal with these and other issues. I’ve said that I’ll refrain from endorsing any specific legislation on China until the results of the top-to-bottom review are released. I’m in the process of evaluating various ideas to develop a comprehensive legislative approach for enhancing our trade relations with China and the rest of the world. The top-to-bottom review will be an important resource for me as I consider the direction to take."

He concluded that "The key point is that China must live up to its commitments and to its responsibilities as a major beneficiary of the global trading system. Any legislation that I endorse will be based on this guiding principle. U.S. farmers, manufacturers, and service providers deserve to enjoy the full benefits of a mature trade relationship with China."

Sen. Grassley also stated that he will question USTR Portman about this report at the SFC hearing scheduled for 10:30 AM on Thursday, February 16, 2006.

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The House will meet at 10:00 AM for legislative business. See, Republican Whip Notice.

The Senate will meet at 9:30 AM. It will consider S 2271, the "USA PATRIOT Act Additional Reauthorizing Amendments Act of 2006".

8:45 AM. Representatives of domain name registrars, including Network Solutions and GoDaddy.com, will host a "press breakfast ... on issues related to ICANN's pending decision in regard to the revised proposals for the .com contract extension and settlement agreement with VeriSign". RSVP by 3:00 PM. Tuesday, February 14, to Mary Greczyn at 202 371-2997 or mg at ftidc dot com. Location: Freedom Technologies, 1317 F Street, NW, fourth floor.

9:30 AM. The Senate Armed Services Committee will hold a hearing on several pending nominations, including that of James Finley to be Deputy Under Secretary of Defense for Acquisition and Technology. See, notice. Location: Room 106, Dirksen Building.

RESCHEDULED FROM JANUARY 31. 10:00 AM. The Senate Commerce Committee (SCC) will hold a hearing titled "Video Franchising". The witnesses will be Ivan Seidenberg (Verizon), James Ellis (AT&T), Thomas Rutledge (Cablevision Systems Corporation), Brad Evans (Cavalier Telephone), Lori Tillery (National Association of Telecommunications Officers and Advisors), Anthony Riddle (Alliance for Community Media), Gene Kimmelman (Consumers Union), and Gigi Sohn (Public Knowledge). See, notice. Press contact: Melanie Alvord (Stevens) at 202 224-8456, Aaron Saunders (Stevens) at 202 224-3991, or Andy Davis (Inouye) at 202 224-4546. The hearing will be webcast by the SCC. Location: Room 562, Dirksen Building.

10:00 AM. The Senate Judiciary Committee (SJC) may hold a hearing on the nominations of Stephen Larson (to be a Judge of the U.S. District Court for the Central District of California) and Jack Zouhary (Northern District of Ohio). The SJC frequently cancels or postpones hearing without notice. Location: Room 226, Dirksen Building.

10:00 AM. The House Judiciary Committee (HJC) will meet to mark up numerous items, including HRes 643, which requests the Attorney General (AG) to submit to the House "all documents in the possession of the Attorney General relating to warrantless electronic surveillance of telephone conversations and electronic communications of persons in the United States conducted by the National Security Agency", HRes 644, which requests the President and AG to give the House within 14 days "documents in the possession of those officials relating to the authorization of electronic surveillance of citizens of the United States without court approved warrants", and HR 4709, the "Law Enforcement and Phone Privacy Protection Act of 2006". See, notice. Press contact: Terry Shawn at 202 225.2492. The meeting will be webcast by the HJC. Location: Room 2141, Rayburn Building.

10:00 AM. The House Commerce Committee's (HCC) Subcommittee on Telecommunications and the Internet will hold a hearing titled "The Law and Economics of Interchange Fees". See, notice. Location: Room 2123, Rayburn Building.

10:00 AM. The House Financial Services Committee (HFSC) will meet to received the Federal Reserve Board's (FRB) semiannual monetary policy report. FRB Chairman Ben Bernanke will testify. See, HFSC release. Location: Room 2128, Rayburn Building.

10:00 AM. The House Homeland Security Committee will hold a hearing titled "The State of Interoperable Communications: Perspectives from the Field". Location: Room 311, Cannon Buildling.

10:00 AM - 12:00 NOON. The House Science Committee (HSC) will hold a hearing titled "An Overview of the Federal R&D Budget for Fiscal Year 2007". The witnesses will be John Marburger (Director of the EOP's Office of Science and Technology Policy), Samuel Bodman (Secretary of Energy), David Sampson (Deputy Secretary of Commerce), Arden Bement (Director of the National Science Foundation), and Charles McQueary (Undersecretary for Science and Technology at the DHS). For more information, contact Peter Rooney (Republican staff) at 202 225-6371, or Christal Sheppard (Democratic staff) at 202 225-6375. The hearing will be web cast by the HSC. Location: Room 2318, Rayburn Building.

10:00 AM. The House International Relations Committee's Subcommittee on Africa, Global Human Rights and International Operations and Subcommittee on Asia and the Pacific will hold a joint hearing titled "The Internet in China: A Tool for Freedom or Suppression?" The witnesses will be David Gross (Deputy Assistant Secretary for International Communications and Information Policy at the Department of State), James Keith (Senior Advisor for China and Mongolia Bureau of East Asian and Pacific Affairs at the Department of State), Michael Callahan (Yahoo), Jack Krumholtz (Microsoft), Elliot Schrage (Google), Mark Chandler (Cisco), Libby Liu (Radio Free Asia), Xiao Qiang (China Internet Project at UC Berkeley), Lucie Morillon ( Reporters Without Borders), and Harry Wu (China Information Center). See, notice. Location: Room 21712, Rayburn Building.

10:00 AM. The Antitrust Modernization Commission (AMC) will hold a hearing on international antitrust issues. Location: Federal Trade Commission (FTC) Conference Center, 601 New Jersey Ave., NW.

10:30 AM. The House Ways and Means Committee will hold a hearing titled "President's Fiscal Year 2007 Budget". Secretary of the Treasury John Snow will testify. See, notice. Location: Room 1100, Longworth Building.

11:00 AM. Attorney General Alberto Gonzales will give a speech to Department of Justice (DOJ) employees in which he will "outline the top priorities for the Department of Justice for the upcoming year and highlight recent accomplishments". The DOJ notice also states that "Media must enter the Department at the center entrance on Constitution Avenue, between Ninth and Tenth Streets. Pre-set for cameras will be at 10:15 A.M. and final escort to the event site will be at 10:45 A.M. Press inquiries regarding logistics should be directed to Theresa Pagliocca at (202) 514-2007." Location: DOJ Main, Great Hall, 950 Pennsylvania Ave., NW.

1:30 PM. The House Ways and Means Committee will hold a hearing titled "President Bush's Trade Agenda". The only witness will be U.S. Trade Representative Rob Portman. See, notice. Location: Room 1100, Longworth Building.

2:00 - 4:00 PM. The Department of State's International Telecommunication Advisory Committee (ITAC) will hold the sixth in a series of weekly meetings to prepare for the International Telecommunications Union's (ITU) 2006 ITU Plenipotentiary Conference, to be held November 6-24, 2006, in Antalya, Turkey. See, notice in the Federal Register, December 21, 2005, Vol. 70, No. 244, at Page 75854. This notice incorrectly states that these meetings will be held on Tuesdays; they are on Wednesdays. For more information, contact Julian Minard at 202 647-2593 or minardje at state dot gov. Location: AT&T, 1120 20th St., NW.

2:30 PM. The Senate Commerce Committee (SCC) will hold a hearing to examine developments in nanotechnology. See, notice. Press contact: Melanie Alvord (Stevens) at 202 224-8456, Aaron Saunders (Stevens) at 202 224-3991, or Andy Davis (Inouye) at 202 224-4546. The hearing will be webcast by the SCC. Location: Room 562, Dirksen Building.

5:00 PM. Deadline to submit applications to the National Institute of Standards and Technology (NIST) for its 2006 SURF grants. These are the Gaithersburg Summer Undergraduate Research Fellowship Program, and the Boulder Summer Undergraduate Research Fellowship Program. The NIST distributes grants for, among other topics, electronics and electrical engineering, and information technology. See, notice in the Federal Register, January 9, 2006, Vol. 71, No. 5, at Pages 1411 - 1416.

6:00 - 8:15 PM. The Federal Communications Bar Association's (FCBA) Common Carrier Practice Committee will host a continuing legal education seminar (CLE) titled "Federal Universal Service Regulation and Policy: Where are We Going, and Why?" The first of two panels is titled "USF Contribution Mechanisms". The speakers will be Joel Lubin (AT&T), Tina Pidgeon (GCI), Donald Stockdale (FCC's Wireline Competition Bureau), and Rick Cimerman (NCTA). The second panel is titled "USF Distribution Policies". The speakers will be Paul Feldman (Fletcher Heald & Hildreth), Eric Einhorn (AT&T), Nannette Thompson (GCI), and Bob Rowe (Rowe & Balhoff). See, notice [MS Word] and registration form [MS Word]. The price to attend ranges from $75 to $125. Location: Wiley Rein & Fielding, 1776 K Street, NW.

Day four of a four day conference hosted by the National Association of Regulatory Utility Commissioners (NARUC) titled "2006 Winter Committee Meetings". See, notice. Location: Hyatt Regency Washington.

The House will meet at 10:00 AM for legislative business. See, Republican Whip Notice.

9:15 AM - 1:30 PM. The U.S. Chamber of Commerce will host a half day conference titled "Private Securities Litigation Ten Years After the PSLRA: What’s Working, What’s Not?". See, notice. Location: U.S. Chamber, 1615 H St., NW.

9:30 AM. The Senate Judiciary Committee may hold an executive business meeting. See, notice. The SJC frequently cancels or postpones meetings without notice. Location: Room 226, Dirksen Building.

10:00 AM. The Senate Banking Committee will hold a hearing titled "First Monetary Policy Report to the Congress for 2006". Federal Reserve Board Chairman Ben Bernanke will testify. See, notice. Location: Room 538, Dirksen Building.

10:30 AM. The Senate Finance Committee (SFC) will hold a hearing on the Bush administration's trade agenda for 2006. Rob Portman, the U.S. Trade Representative (USTR), will testify. Sen. Charles Grassley (R-IA), the Chairman of the SFC, stated on February 14 that he will question Portman on the USTR's February 14 report [29 pages in PDF] titled "U.S.-China Trade Relations: Entering a New Phase of Greater Accountability and Enforcement: Top-to-Bottom Review". Location: Room 215, Dirksen Building.

12:00 NOON - 2:00 PM. The DC Bar Association will host a panel discussion titled "What Every Lawyer Needs to Know About Copyright and Fair Use". The speakers will include Ronald Dove (Covington & Burling), Margaret Esquenet (Finnegan Henderson), and Matthew DelNero (Covington & Burling). The price to attend ranges from $15-$25. For more information, call 202 626-3463. See, notice. Location: D.C. Bar Conference Center, 1250 H Street NW, B-1 Level.

2:00 PM. The House Appropriations Committee's Science, the Departments of State, Justice, and Commerce, and Related Agencies will hold a hearing on the budget for the Office of the U.S. Trade Representative (USTR). Location: H-309, Capitol Building.

6:00 - 8:15 PM. The Federal Communications Bar Association's (FCBA) Engineering Committee will host a continuing legal education (CLE) seminar titled "FCC Regulation of New Technologies". The speakers will be Mitchell Lazarus (Fletcher, Heald & Hildreth), Julius Knapp (Deputy Chief of the FCC's Office of Engineering and Technology), Rashmi Doshi (Chief of the FCC's OET's Laboratory Division), Karl Nebbia (National Telecommunications Information Administration), Barry Ohlson (assistant to FCC Commissioner Jonathan Adelstein), and Jay Birnbaum (Current Communications Group). See, notice and registration form [PDF]. The price to attend ranges from $50 to $125. Location: Dow Lohnes & Albertson, 1200 New Hampshire Ave., NW.

8:15 PM. Georgetown University Law Center (GULC) will host a panel discussion titled "The War on Terror: Civil Defense vs. Civil Liberties". The speakers will be Sen. Arlen Specter (R-PA), Rep. Jane Harman (D-CA), Neal Katyal (GULC), Seymour Hersh, and Wolf Blitzer (CNN). Location: GULC, Hart Auditorium, McDonough Hall, 600 New Jersey Ave., NW.

The House may meet. The Republican Whip Notice states that "no votes are expected".

George Washington's birthday.

The House will not meet on Monday, February 20, through Friday, February 24. See, Majority Whip's calendar.

The Senate will not meet on Monday, February 20, through Friday, February 24. See, 2006 Senate calendar.

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

12:00 NOON UTC. Deadline to submit comments to the Internet Corporation for Assigned Names and Numbers (ICANN) regarding the proposed agreements that would settle litigation between VeriSign and the ICANN. See, story titled "ICANN Seeks Comments on Settlement of Litigation with VeriSign" in TLJ Daily E-Mail Alert No. 1,300, January 31, 2006.

12:15 PM. The Federal Communications Bar Association's (FCBA) Mass Media Practice Committee will host a brown bag lunch titled "Broadcasters Delve Into the Digital Future". The speakers will be Rick Chessen (Sheppard Mullin), David Fleming (General Counsel of Gannett Broadcasting), Albert Shuldiner (General Counsel of iBiquity), Steve Smith (Broadcast Technology Consultants, Inc.), and Mike Starling (NPR). For more information, contact Eva Dia at edia at sheppardmullin dot com. Location: Sheppard Mullin, 1300 I Street, 11th floor.

12:00 NOON - 1:30 PM. The Federal Communications Bar Association's (FCBA) International Telecommunications Committee will host a brown bag lunch. The topic will be the FCC's International Bureau's (IB) accomplishments in 2005 and goals for 2006. The speaker will be Don Abelson, Chief of the IB. For more information, contact Ann Henson at ann at fcba dot org. Location: Skadden Arps, 11th floor, 700 14th St., NW.

12:00 NOON. The Federal Communications Bar Association's (FCBA) Wireless Committee will host a lunch. The topic will be "Impact of the U.S. Wireless Industry on the U.S. Economy". The speaker will be Roger Entner (Ovum). The price to attend is $15. Registrations and cancellations are due by 12:00 NOON on February 17. See, registration form [PDF]. Location: Sidley Austin, 1500 K Street, 6th Floor.

2:00 - 4:00 PM. The Department of State's International Telecommunication Advisory Committee (ITAC) will hold the seventh in a series of weekly meetings to prepare for the International Telecommunications Union's (ITU) 2006 ITU Plenipotentiary Conference, to be held November 6-24, 2006, in Antalya, Turkey. See, notice in the Federal Register, December 21, 2005, Vol. 70, No. 244, at Page 75854. This notice incorrectly states that these meetings will be held on Tuesdays; they are on Wednesdays. For more information, contact Julian Minard at 202 647-2593 or minardje at state dot gov. Location: AT&T, 1120 20th St., NW.