2/28. The Senate approved a motion to invoke cloture on S 2271, the "USA PATRIOT Act Additional Reauthorizing Amendments Act of 2006", by a vote of 69-30. See, Roll Call No. 23.

This is a procedure to terminate debate, and a filibuster, of a bill. The Senate may vote on final approval of S 2271 as early as Wednesday morning, March 1. The Senate is then scheduled to consider the conference report on the huge conference report [PDF] on HR 3199, the "USA PATRIOT Improvement and Reauthorization Act of 2005". HR 3199 would extend the sunsetted provisions of the USA PATRIOT Act.

Sen. Patrick Leahy (D-VT), Sen. Russ Feingold (D-WI), and 28 other Democrats voted against the cloture motion.

Sen. Feingold (at right) stated during debate that "We should not end debate on this bill, and we should not pass this bill. Doing so will only help implement the deeply flawed deal that was struck with the White House to reauthorize the PATRIOT Act without enacting the core civil liberties protections for which so many of us have fought."

He added that "In recent weeks, Senators have worked with the White House to produce a compromise. However, the compromise remains far short of what is required to protect Americans' civil liberties. Regrettably, the Senate has backed down from its earlier stand and is poised to pass the inadequate bill."

Sen. John Sununu (R-NH), the lead sponsor of S 2271, stated that his bill "represents a compromise", but also "represents a substantial step forward in terms of better safeguarding our civil liberties from where we were with the current law and, equally important, allows us to lock in, to get enacted into law a number of other improvements that many of us worked very hard on in a bipartisan way."

See also, story titled "Republican Senators Announce Agreement on PATRIOT Act Extension" in TLJ Daily E-Mail Alert No. 1,307, February 10, 2006.

The House is also scheduled to take up S 2271 on March 1 or 2, 2006. It has already approved the conference report on HR 3199. See, story titled "House Approves Conference Report on PATRIOT Act Extension Bill" in TLJ Daily E-Mail Alert No. 1,273, Thursday, December 15, 2005.

2/28. The Supreme Court issued its opinion [9 pages in PDF] in Texaco v. Dagher, an antitrust case, reversing the judgment of the U.S. Court of Appeals (9thCir). While this is an antitrust case involving joint ventures in the oil industry, the holding impacts many other industry sectors, including communications and information technology, where there are also lawful joint venture agreements.

The Supreme Court held that it is not per se illegal under Section 1 of the Sherman Act for a lawful, economically integrated joint venture to set the prices at which the joint venture sells its products. It reversed the Court of Appeals. See, June 1, 2004, divided opinion [34 pages in PDF], which is also reported at 369 F.3d 1108.

The Supreme Court's opinion is short, and directed to the specific facts of the joint venture at issue in this case. Texaco and Shell collaborated in a joint venture, Equilon Enterprises, to refine and sell gasoline in the western US. The joint venture was approved in a Federal Trade Commission (FTC) consent decree.

Dagher, and a class of Texaco and Shell service station owners, asserted that Texaco and Shell engaged in unlawful price fixing when Equilon set a single price for both Texaco and Shell brand gasoline.

Dagher filed a complaint in U.S. District Court (CDCal). The District Court held for Texaco and Shell. The Court of Appeals reversed.

Section 1 of the Sherman Act, which is codified at 15 U.S.C. § 1, provides that "Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal. Every person who shall make any contract or engage in any combination or conspiracy hereby declared to be illegal shall be deemed guilty of a felony, and, on conviction thereof, shall be punished by fine not exceeding $10,000,000 if a corporation, or, if any other person, $350,000, or by imprisonment not exceeding three years, or by both said punishments, in the discretion of the court."

The Supreme Court noted that "This Court has not taken a literal approach to this language". Rather, it generally construes Section 1 to prohibit only "unreasonable" restraints. It usually applies "rule of reason" analysis. However, the Court added, "Per se liability is reserved for only those agreements that are ``so plainly anticompetitive that no elaborate study of the industry is needed to establish their illegality.´´" (Citing National Soc. of Professional Engineers v. United States, 435 U.S. 679 (1978).)

The Court noted that "Price-fixing agreements between two or more competitors, otherwise known as horizontal price-fixing agreements, fall into the category of arrangements that are per se unlawful." But, the Court concluded that this is not a case of price fixing by competitors.

It wrote that "These cases do not present such an agreement, however, because Texaco and Shell Oil did not compete with one another in the relevant market -- namely, the sale of gasoline to service stations in the western United States -- but instead participated in that market jointly through their investments in Equilon. In other words, the pricing policy challenged here amounts to little more than price setting by a single entity -- albeit within the context of a joint venture -- and not a pricing agreement between competing entities with respect to their competing products."

The Supreme Court concluded that "the pricing decisions of a legitimate joint venture do not fall within the narrow category of activity that is per se unlawful under §1 of the Sherman Act". And since there was a legitimate joint venture, there was no per se violation, and the Court of Appeals must be reversed.

This case is Texaco, Inc. v. Fouad N. Dagher, et al., Sup. Ct. No. 04-805, and Shell Oil Company v. Fouad N. Dagher, et al., No. 04-814, petitions for writ of certiorari to the U.S. Court of Appeals for the 9th Circuit, App. Ct. No. 02-56509. The Court of Appeals heard an appeal from the U.S. District Court (CDCal), D.C. No. CV-99-06114-GHK.

Judge Stephen Reinhardt wrote the opinion of the Court of Appeals, in which Judge Johnnie Rawlinson joined. Judge Ferdinand Fernandez dissented.

Justice Clarence Thomas (at left) wrote the opinion for a unanimous Supreme Court. Justice Sam Alito, who just recently joined the Court, did not participate.

Thomas praised and quoted from the dissenting opinion of Judge Fernandez. Back during the administration of the elder President Bush, advisors to the President placed Fernandez on a short list of candidates for appointment to the Supreme Court. However, Justices Souter and Thomas received the appointments for the two open seats in that administration.

Numerous entities filed amicus curiae briefs urging reversal of the Court of Appeals, including the Office of the Solicitor General (OSG), Verizon, Visa USA, and the U.S. Chamber of Commerce.

Verizon stated in its amicus brief [37 pages in PDF] that joint venture agreements are common in the telecommunications industry, for such things as large high risk projects such as laying transoceanic fiber optic cable, research and development projects, and standard setting.

It wrote that "Verizon and other telecommunications companies rely on many forms of cooperative arrangements to bring new services to the market and to reduce the cost and improve the quality of existing services. In this respect, Verizon's interest in appropriate antitrust rules for restraints ancillary to legitimate productive cooperation is similar in kind to the interest of countless other businesses in all sectors of the economy. Verizon's interest differs in degree, however, because productive cooperation is especially common and useful in the telecommunications industry."

Verizon continued in its brief that "high-risk investments that require large amounts of capital are often undertaken through joint ventures or other cooperative arrangements. Cooperation between potential competitors played a major role in the deployment of transoceanic fiber optic cables to carry telephone and internet traffic between the United States and Europe, Asia, South America, and other parts of the world."

Verizon stated that "Cooperative arrangements are also commonly used for research and development projects, where they allow the partners to share costs and risks, and also bring together the partners’ complementary skills and knowledge. Consumers of telecommunications services often have communications needs that extend beyond the boundaries of any single carrier’s network. Joint ventures and other cooperative arrangements have been a valuable mechanism for serving such customers. For example, MCI partnered with British Telecom to provide complex services to multinational corporations with facilities throughout the world."

Finally, Verizon argued that "The importance of coordination and standard setting motivated the creation of another joint venture, Bellcore, in connection with the breakup of AT&T pursuant to an antitrust decree. That joint venture, financed and controlled by the seven regional Bell companies, was created to ``perform the coordination for national defense and other emergency purposes that is vital to the nation’s security´´ and to ``set the standards which will permit telecommunications to continue to operate in an engineering sense as one national network.´´ ... The decree court explained, ``It seems beyond debate that uniform standards are necessary to ensure high quality in the telephone system, indeed its very survival as a nationwide network. Nor are such standards incompatible with competition.´´"

See also, story titled "Verizon Seeks Reversal in Texaco v. Dagher" in TLJ Daily E-Mail Alert No. 1,232, October 12, 2005.

2/28. The Securities and Exchange Commission (SEC) announced that SEC Chairman Chris Cox has been given a "clean bill of health" by his doctors, following his January 30, 2006, surgery to remove a benign thymic tumor. The SEC added that Cox "returned to work part time two weeks after surgery, and full time this week". See, SEC release.

2/28. Douglas Hoelscher was named Executive Director of the Department of Homeland Security's (DHS) Homeland Security Advisory Committees. See, DHS release.

2/28. The Federal Communications Commission (FCC) issued a Notice of Apparent Liability for Forfeiture [8 pages in PDF] that finds First Choice Healthcare liable for apparent violations of 47 U.S.C. § 227, and the FCC's rules thereunder, for sending unsolicited advertisements to the telephone facsimile machines of consumers. That is, the FCC proposes to fine First Choice $776,500 for sending junk fax messages. This NALF is FCC 06-22.

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The House will meet at 10:00 AM for legislative business. It may consider S 2271, the "USA PATRIOT Act Additional Reauthorizing Amendments Act of 2006". See, Republican Whip Notice.

The Senate will meet at 9:30 AM. It will resume consideration of S 2271, the "USA PATRIOT Act Additional Reauthorizing Amendments Act of 2006". It may vote on final approval of S 2271. At 12:00 NOON the Senate will resume consideration of the conference report [PDF] on HR 3199, the "USA PATRIOT Improvement and Reauthorization Act of 2005".

8:30 AM - 5:00 PM. Day two of a two day conference hosted by the National Telecommunications and Information Administration (NTIA) titled "Improving Spectrum Management through Economic or Other Incentives". See, notice. Location: National Academy of Sciences, Lecture Room, 2101 Constitution Ave., NW. The entrance at 2100 C St., NW.

8:30 AM - 1:00 PM. The Information Technology Association of America (ITAA) will host an event titled "Enterprise VoIP: From Communication to Collaboration". For more information, contact Eerik Kreek at ekreek at itaa dot org. See, notice. Location: Ritz Carlton Pentagon City, Arlington, VA.

10:00 AM. The House Judiciary Committee's (HJC) Subcommittee on Courts, the Internet and Intellectual Propoerty (CIIP) will meet to mark up HR 4742, a bill to allow the Director of the U.S. Patent and Trademark Office (USPTO) to waive statutory provisions governing patents and trademarks in certain emergencies, and S 1785, the "Vessel Hull Design Protection Amendments of 2005". The meeting will be webcast by the HJC. Press contact: Terry Shawn at 202 225.2492. Location: Room 2141, Rayburn Building.

RESCHEDULED FOR MARCH 2. 10:00 AM. The House Judiciary Committee (HJC) will meet to mark up numerous items, including HR 4709, the "Law Enforcement and Phone Privacy Protection Act of 2006" and HR 2955, the "Intellectual Property Jurisdiction Clarification Act of 2005". The meeting will be webcast by the HJC. Press contact: Terry Shawn at 202 225.2492. Location: Room 2141, Rayburn Building.

10:30 AM. The Senate Appropriations Committee's Subcommittee on the Legislative Branch will hold a hearing on the FY 2007 budget for the Library of Congress (LOC), Government Accountability Office (GAO), and other entities. Location: Room 138, Dirksen Building.

2:00 PM. The Senate Judiciary Committee (SJC) may hold a hearing on judicial nominations. The agenda includes consideration of Norman Randy Smith (to be a Judge of the U.S. Court of Appeals for the 9th Circuit), and Patrick Joseph Schlitz (U.S.D.C. for the District of Minnesota). See, notice. The SJC frequently cancels or postpones hearings 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.

2:00 PM. The House Homeland Security Committee's (HHSC) Subcommittee on Emergency Preparedness, Science, and Technology will hold a hearing titled "The State of Interoperable Communications: Perspectives from State and Local Governments". Location: Room 311, Cannon Building.

2:00 PM. The House Appropriations Committee's Subcommittee on Science, the Departments of State, Justice, and Commerce, and Related Agencies will hold a hearing on the FY 2007 budget for the Federal Communications Commission (FCC). Location: Room H-309, Capitol Building.

2:00 PM. The House Financial Services Committee's (HFSC) Subcommittee on Domestic and International Monetary Policy, Trade and Technology will hold a hearing titled "Foreign Investment, Jobs and National Security: The CFIUS Process". Location: Room 2128, Rayburn Building.

RESCHEDULED FROM FEBRUARY 14. 6:30 PM. The House Armed Services Committee will meet to mark up HRes 645, which requests the Bush administration "to transmit to the House of Representatives all information in the possession of the President or the Secretary of Defense relating to the collection of intelligence information pertaining to persons inside the United States without obtaining court-ordered warrants authorizing the collection of such information and relating to the policy of the United States with respect to the gathering of counterterrorism intelligence within the United States". Location: Room 2118, Rayburn Building.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to the notice of proposed rulemaking (NPRM) portion of its Report and Order (R&O) and NPRM of August 5, 2005 regarding regulation of information services. The R&O classified wireline broadband internet access services as information services. The NPRM proposes to impose new regulatory burdens on information services. This item is FCC 05-150 in WC Docket No. 05-271, CC Docket No. 02-33, CC Docket No. 01-337, CC Docket Nos. 95-20 and 98-10, and WC Docket No. 04-242. See, story titled "FCC Classifies DSL as Information Service" in TLJ Daily E-Mail Alert No. 1,190, August 8, 2005. The FCC released the text [133 pages in PDF] of this item on September 23, 2005. See, notice in the Federal Register, October 17, 2005, Vol. 70, No. 199, at Pages 60259 - 60271.

The House will meet at 10:00 AM for legislative business. It may consider S 2271, the "USA PATRIOT Act Additional Reauthorizing Amendments Act of 2006". See, Republican Whip Notice.

9:30 AM. The Senate Judiciary Committee (SJC) may hold an executive business meeting. The agenda includes consideration of several judicial nominations, including Jack Zouhary (to be a Judge of the U.S. District Court for the Northern District of Ohio), Stephen Larson (USDC, Central District of California), and Steven Bradbury (Assistant Attorney General in charge of the Office of Legal Counsel). The agenda also includes consideration of several bills, including S 2178, the "Consumer Telephone Records Protection Act of 2006", S 1768, a bill to permit the televising of Supreme Court proceedings, and S 829, the "Sunshine in the Courtroom Act of 2005". See, notice. The SJC rarely follows its published agenda. The SJC frequently cancels or postpones 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.

RESCHEDULED FROM MARCH 1. 10:00 AM. The House Judiciary Committee (HJC) will meet to mark up numerous items, including HR 4709, the "Law Enforcement and Phone Privacy Protection Act of 2006" and HR 2955, the "Intellectual Property Jurisdiction Clarification Act of 2005". The meeting will be webcast by the HJC. Press contact: Terry Shawn at 202 225.2492. Location: Room 2141, Rayburn Building.

RESCHEDULED FROM FEBRUARY 28. 10:00 AM. The Senate Commerce Committee (SCC) will hold a hearing titled "USF Distribution". The witnesses will be Jeff Mao (Maine Department of Education), Shirley Bloomfield (National Telecommunications Cooperative Association), Carson Hughes (Cellular South), Tony Clark (North Dakota Public Service Commission, and Chairman of NARUC's Telecommunications Committee Department), and Ben Scott (Free Press). 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.

POSTPONED. 10:00 AM. The Senate Commerce Committee (SCC) will hold a hearing titled "Voice over Internet Protocol". 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 House Appropriations Committee's Subcommittee on Science, the Departments of State, Justice, and Commerce, and Related Agencies will hold a hearing on the FY 2007 budget for the National Science Foundation (NSF). Location: Room H-309, Capitol Building.

10:00 AM. The House Appropriations Committee's Subcommittee on Labor, Health and Human Services, Education, and Related Agencies will hold a hearing on the FY 2007 budget for President Bush's American Competitiveness Agenda. Location: Room 2358, Rayburn Building.

MOVED TO MARCH 14. 10:00 AM. The Senate Commerce Committee (SCC) will hold a hearing titled "Wireless Issues / Spectrum Reform". 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 Banking Committee will hold a hearing on the implementation of the Exon-Florio Amendment and the Committee on Foreign Investment in the U.S. (CFIUS) for protectionist and political purposes. This hearing will focus on the acquisition of by Dubai Ports World of P&O. See, notice. Location: Room 538, Dirksen Building.

12:00 NOON. The Parents Television Council (PTC) will host a news conference regarding a PTC report on children's television. For more information, contact Kelly Oliver at 703 683-5004 koliver at crc4pr dot com. Location: Murrow Room, National Press Club, 529 14th St. NW, 13th Floor.

The Republican Whip Notice states that "no votes expected in the House".

9:00 AM. There will be an event titled "eBay Media Roundtable". For more information, contact Jean Shim at 202 295-4114 or jshim at foley dot com. Location: National Press Club, 529 14th St. NW, 13th Floor.

12:00 NOON. The Federal Communications Bar Association's (FCBA) Wireless Committee will host a lunch. The topic will be "Consumer Litigation in the Wireless Industry". The speakers will be Laura Buckland (T-Mobile USA), Sue Haller (Sprint), and Michael Altschul (CTIA). The price to attend is $15. Registrations and cancellations are due by 12:00 NOON on February 28. See, registration form [PDF]. Location: Sidley Austin, 1500 K Street, 6th Floor.

12:00 NOON. The Cato Institute will host a forum on the book titled An Army of Davids: How Markets and Technology Empower Ordinary People to Beat Big Media, Big Government, and Other Goliaths [Amazon], by Glenn Reynolds. See, notice and registration page. Lunch will be served. The event will be webcast by Cato. Location: Cato, 1000 Massachusetts Ave., NW.

6:00 - 8:15 PM. The DC Bar Association will host a continuing legal education (CLE) seminar titled "Ethics and the Internet". The speaker will be J.T. Westermeier (DLA Piper Rudnick Gray Cary). The topics to be covered include web based advertising, unauthorized practice of law, formation of attorney client relationships, attorney client confidentiality, online referral services and directories, online bids for legal services, and class action communications. The price to attend ranges from $70-$125. For more information, call 202 626-3488. See, notice. Location: D.C. Bar Conference Center, 1250 H Street NW, B-1 Level.

8:30 AM - 5:15 PM. The National Institute of Standards and Technology's (NIST) Visiting Committee on Advanced Technology (VCAT) will meet. See, notice in the Federal Register, February 17, 2006, Vol. 71, No. 33, at Page 8566. The public must request permission to attend by March 2. Location: Employees Lounge, Administration Building, NIST, Gaithersburg, MD.

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in AT&T (formerly SBC) v. FCC, App. Ct. No. 05-1186. This is a petition for review of a final order of the Federal Communications Commission (FCC) denying a petition for forbearance from applying Title II regulatory obligations to certain services characterized by SBC as internet protocol services. See, brief [40 pages in PDF] of the FCC. Judges Randolph, Tatel and Williams will preside. Location: Prettyman Courthouse, 333 Constitution Ave., NW.

10:00 AM. The Senate Commerce Committee (SCC) will hold a hearing titled "Rural Telecommunications". 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 U.S. Court of Appeals (FedCir) will hear oral argument in Competitive Technologies, Inc., et al. v. Fujitsu, an appeal from the U.S. District Court (NDCal) in patent infringement case involving plasma display panels (see, U.S. Patent Nos. 4,866,349 and 5,081,400), and 11th Amendment immunity of state universities. This is App. Ct. No. 05-1237 and D.C. No. C-02-1673 JCS. Previously, the Federal Circuit dismissed for lack of jurisdiction. See, June 30, 2004, opinion. The Supreme Court denied certiorari on October 3, 2005. See, Order List [84 pages in PDF], at page 14. Location: Courtroom 402, 717 Madison Place, NW.

12:00 NOON. The House Judiciary Committee's (HJC) Subcommittee on Crime, Terrorism, and Homeland Security will hold an oversight hearing titled "White Collar Enforcement (Part l): Attorney-Client Privilege and Corporate Waivers". The hearing will be webcast by the HJC. Press contact: Jeff Lungren or Terry Shawn at 202 225-2492. Location: Room 2141, Rayburn Building.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in LG Electronics v. Bizcom Electronics, an appeal from the U.S. District Court (NDCal) in a case involving the issue of patent misuse. This is App. Ct. No. 05-1261. Location: Courtroom 210, 717 Madison Place, NW.

10:00 - 11:30 AM. The National Institute of Standards and Technology's (NIST) Visiting Committee on Advanced Technology (VCAT) will meet. See, notice in the Federal Register, February 17, 2006, Vol. 71, No. 33, at Page 8566. The public must request permission to attend by March 2. Location: Employees Lounge, Administration Building, NIST, Gaithersburg, MD.

2:30 PM. The Senate Commerce Committee's Subcommittee on Trade, Tourism, and Economic Development will hold a hearing titled "Piracy and Counterfeiting in China". Press contact: Melanie Alvord (Stevens) at 202 224-8456, Aaron Saunders (Stevens) at 202 224-3991, or Andy Davis (Inouye) at 202 224-4546. Location: Room 562, Dirksen Building.

Deadline to submit comments to the Internal Revenue Service (IRS) regarding its (1) notice of proposed rulemaking, and (2) proposed revenue procedure, pertaining to tax return preparers' use and disclosure of tax return information in an electronic environment. See, IRS notice in the Federal Register that describes and recites proposed changes to its rules implementing 26 U.S.C. § 7216, Federal Register, December 8, 2005, Vol. 70, No. 235, at Pages 72954 - 72964. See also, IRS web site notice [16 pages in PDF] that describes and contains the proposed revenue procedure. And see, story titled "IRS Releases Proposed Rules Regarding Electronic Tax Preparation" in TLJ Daily E-Mail Alert No. 1,268, December 8, 2005.