6th Circuit Vacates in ACLU v. NSA
for Lack of Standing |
7/6. The U.S. Court of Appeals (6thCir) issued
its divided opinion
[PDF] in ACLU v. NSA. vacating the District Court's judgment
enjoining the National Security Agency's (NSA)
extrajudicial electronic intercepts where one party is within the U.S. and the
other is outside. The Court of Appeals held that the plaintiffs lacked standing,
and hence, vacated the judgment of the District Court, and remanded with
instructions to dismiss the case for lack of jurisdiction.
The opinion of the Court of Appeals describes the NSA's Terrorist Surveillance Program
(TSP) in vague terms. It states that "the TSP includes the interception (i.e.,
wiretapping), without warrants, of telephone and email communications where one party to the
communication is located outside the United States and the NSA has ``a reasonable basis to
conclude that one party to the communication is a member of al Qaeda, affiliated with al Qaeda,
or a member of an organization affiliated with al Qaeda, or working in support of al
Qaeda.´´" (Parentheses in original. Quotation to news conference of Attorney General
Alberto Gonzales and General Michael Hayden on December 19, 2005.)
The plaintiffs are the American Civil Liberties Union (ACLU), journalists, academics, and
lawyers who regularly communicate with individuals located overseas. The plaintiffs believe
that they are the types of people that the NSA suspects of being al Qaeda terrorists,
affiliates, or supporters, and are therefore likely to be monitored under the
TSP. However, the plaintiffs have no evidence that they have been surveiled. The
NSA does not disclose this information.
The plaintiffs filed a complaint in the U.S.
District Court (EDMich) against the NSA and others seeking injunctive and declaratory
relief, asserting six causes of action. Although, the Court of Appeals wrote that "To
call a spade a spade, the plaintiffs have only one claim, namely, breach of privacy, based
on a purported violation of the Fourth Amendment or FISA -- i.e., the plaintiffs do
not want the NSA listening to their phone calls or reading their emails. That is
really all there is to it. On a straightforward reading, this claim does not
implicate the First Amendment."
The District Court, Judge Anna Taylor presiding, issued its
opinion [44 pages
in PDF] on August 17, 2006, enjoining the TSP. The District Court held that the TSP violates
the separation of powers doctrine, the First and Fourth Amendments, the Foreign Intelligence
Surveillance Act (FISA), Title III of Omnibus Crime Control and Safe Streets Act, and the
Administrative Procedure Act (APA). It also rejected the government's procedural arguments
regarding standing and the states secrets doctrine.
See also, story
titled "District Court Holds NSA Surveillance Program Violates Constitution" in
TLJ Daily E-Mail
Alert No. 1,433, August 17, 2006.
Opinion of the Court. Judge Batchelder wrote the opinion of the Court
of Appeals, almost all of which is devoted to the issue of standing to sue.
She concluded that the plaintiffs lack standing to challenge the TSP under
any of its causes of action. They cannot show that their communications have
been intercepted. Hence, their asserted injuries are too speculative.
Having found a lack of standing, she concluded that the District Court lacked
jurisdiction, and thus that the judgment of the District Court must be vacated,
and the case dismissed.
While the Court of Appeals vacated, it neither affirmed nor reversed any of the findings
of the District Court regarding the merits of the plaintiffs' claims.
Judge Gibbons's Concurring Opinion. Judge Julia Gibbons wrote a
concurring opinion. She concluded that "the plaintiffs have failed to provide
evidence that they are personally subject to the TSP. Without this evidence, on
a motion for summary judgment, the plaintiffs cannot establish standing for any
of their claims, constitutional or statutory. For this reason, I do not reach
the myriad other standing and merits issues, the complexity of which is ably
demonstrated by Judge Batchelder’s and Judge Gilman’s very thoughtful opinions,
and I therefore concur in the judgment only."
Judge Gilman's Dissent. Judge Ronald Gilman wrote a long dissent
(beginning a page 41 of the slip opinion). He argued that the Court did have
jurisdiction. He further argued that the TSP as originally implemented violated the FISA.
Most of his opinion is devoted to the question of standing. He
concluded that "the attorney-plaintiffs have satisfied both the constitutional
and prudential requirements for standing to sue. I therefore conclude that the
attorney-plaintiffs are entitled to proceed with their claims against the
government for the injuries allegedly flowing from the operation of the TSP."
Having found standing, he rejected the NSA argument that the
case is moot. He also concluded that the TSP violates both the FISA and Title
III. Finally, he concluded that the President does not have authority under
either inherent Presidential powers, or under the Congress's Authorization for
Use of Military Force (AUMF). Thus, he would have
affirmed the judgment of the District Court.
Judicial Politics. Each of the judges' opinions correlated with the party of
the appointing President.
Judge Taylor, who wrote the opinion of the District Court, was appointed to
the District Court by former President Jimmy Carter in 1979. See, District Court
biography and 6th Circuit
biography.
Judge Gilman, who would have affirmed the District Court, was appointed to
the Court of Appeals by former President Bill Clinton. See, 6th Circuit
biography.
Judge Batchelder, who wrote the opinion of the Court of Appeals vacating the
judgment of the District Court, was appointed to the District Court by former
President Ronald Reagan in 1984. She was appointed to the Court of Appeals in
1991 by former President George Bush. See, 6th Circuit
biography.
Judge Gibbons, who concurred, was appointed to the District Court by former
President Ronald Reagan. She was appointed to the Court of Appeals in 2002 by
President Bush. See, 6th Circuit
biography.
Reaction. Brian Roehrkass, of the DOJ's Office of Public Affairs, stated in a
release that "We are pleased with the Court's decision today, which confirms that
plaintiffs in this case cannot seek to expose sensitive details about the classified and
important Terrorist Surveillance Program. The Terrorist Surveillance Program was a vital
intelligence program that helped detect and prevent terrorist attacks. It was always subject
to rigorous oversight and review. Any electronic surveillance that was being conducted pursuant
to the TSP is now being conducted subject to the approval of the Foreign Intelligence
Surveillance Act Court."
Sen. Patrick Leahy (D-VT), the Chairman of the
Senate Judiciary Committee (SJC), stated in a
release that "The
Court’s decision is a disappointing one that was not made on the merits of the case, yet
closed the courthouse doors to resolving it. I hope the Bush Administration will finally
provide the information requested by Congress regarding the constitutional and legal questions
about this program so that those of us who represent the American people can get to the bottom
of what happened and why."
He added that "There is a dark cloud over the White House’s warrantless wiretapping
program, and a full response to the outstanding subpoena from the Senate Judiciary Committee
by this Administration would be a good start to clearing the air and moving forward in ways
that allow us to better protect against terrorists while honoring the rule of law and the
liberties of law-abiding Americans."
See also, story titled "Senate Judiciary Committee Authorizes Issuance of
Subpoenas Directed at Bush Administration Regarding Surveillance" in TLJ Daily
E-Mail Alert No. 1,599, June 21, 2007.
This case is American Civil Liberties Union, et al. v. National Security Agency, et
al., U.S. Court of Appeals for the 6th Circuit, App. Ct. Nos. 06-2095 and 06-2140, appeals
from the U.S. District Court for the Eastern District of Michigan, D.C. No. 06-CV-10204, Judge
Anna Taylor presiding. Judge Alice Batchelder wrote the opinion of the Court of
Appeals, in which Judge Julia Gibbons concurred.
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House Democrats Signal End of
FTAs |
7/2. Trade promotion authority (TPA) expired on Saturday, June 30, 2007. TPA
enabled the President, and his trade representatives, to negotiate trade
agreements that the Congress could approve or reject, but not amend. In
addition, House Democratic leaders issued a joint statement on July 2, 2007,
indicating that the House is unlike to approve free trade agreements (FTAs) with
Korea or other nations.
The President, through the Office of the U.S. Trade
Representative (OUSTR), concluded the U.S. Korea FTA in April. See, story titled "US
and Korea Announce FTA" in TLJ
Daily E-Mail Alert No. 1,559, April 2, 2007. See also,
text of the agreement and sections regarding
telecommunications [17 pages in PDF],
electronic commerce [4 pages in PDF],
intellectual property rights [35 pages
in PDF]
The Congress has not approved this FTA. On July 2, 2007, House Democratic leaders
announced their opposition.
USTR Susan Schwab, and Korea's Trade Minister Kim Hyun-chong signed the FTA in a Capitol
Hill ceremony on June 30. However, this signing may prove to be a ceremony without consequence.
Protectionist House Democrats oppose the FTA. Democrats control the House.
Rep. Nancy Pelosi (D-CA), the Speaker of the House,
Rep. Steny Hoyer (D-MD), the Majority Leader,
Rep. Charles Rangel (D-NY), Chairman of the
House Ways and Means Committee, and
Rep. Sander Levin (D-MI), Chairman of the Subcommittee
on Trade, announced in a joint
statement on July
2 that "we cannot support the KFTA".
Schwab wrote in
statement that the FTA "has strong provisions that will expand market access
and investment opportunities in a number of service sectors, including
telecommunications and e-commerce. The agreement will also expand market
opportunities for U.S. audio-visual products. It also provides high standards
for protection and enforcement of intellectual property rights, including
trademarks, copyrights and patents, consistent with U.S. standards."
President Bush praised the U.S. Korea FTA in a
statement
released on June 30, 2007. He wrote that this FTA, if approved, "will generate
export opportunities for U.S. farmers, ranchers, manufacturers, and service
suppliers, promote economic growth and the creation of better paying jobs in the
United States, and help American consumers save money while offering them
greater choices. The Agreement will also further enhance the strong United
States-Korea partnership, which has served as a force for stability and
prosperity in Asia. I call on Congress to ratify this landmark Agreement, to the
considerable benefit of the American people."
With respect to the U.S. Peru FTA, the House Democratic leaders'
statement expresses no support, or commitment to bring the FTA to the floor for
a vote. Rather, it states that members of Congress will travel to Peru to
"confer". (The Constitution provides that the President "shall have
Power ... to make Treaties ...")
The House Democratic leaders' statement adds an additional requirement that is not an
attribute of the usual process by which nations enter into FTAs. The statement asserts that
Peru must first enact legislation implementing any agreement before the House approves or
implements any agreement that it reaches with Peru.
With respect to the Columbia FTA, the House Democratic leaders'
statement announces that "we cannot support the Colombia FTA".
Condoleezza Rice praised TPA and the pending FTAs in a
release on June 29, 2007.
She stated that these FTAs, "none of which would be possible without TPA", will
"promote democracy", in addition to providing economic benefits.
Rice also said that without TPA, "countries will be less willing to enter into serious
trade discussions with the United States. Indeed, the last time TPA lapsed (1995 - 2001),
America sat on the sidelines as 190 regional trade agreements were negotiated without us.
While global networks of power and influence advanced, our economic interests were stymied.
To maintain America's global economic leadership and advance our nation's broader foreign
policy goals, I call on Congress to immediately renew Trade
Promotion Authority." (Parentheses in original.)
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More Trade News |
7/4. Peter
Mandelson, the EC Commissioner for Trade, gave a
speech regarding Doha round negotiations. He said that "The Doha Round is
now going back to Geneva." He said that last month's negotiations in Potsdam,
Germany, between the US, EU, India and Brazil did not succeed "in making the
breakthrough we hoped for." He focused on Brazil. He said that "We all stand to
gain from a Doha success: but Brazil stands to gain more than most". He
continued that "Brazil needs to offer a tariff reduction proposal that removes
the ability in future to raise the tariffs currently applied ... that eliminates
existing applied tariff peaks ... that creates a reasonable level of new market
access by lowering modestly a range of other tariffs."
7/2. On July 2, 2007,
Pascal Lamy, Director General
of the World Trade Organization (WTO) gave a
speech
regarding Doha round negotiations, in Geneva, Switzerland, in which he
stated that "What remains to be done is small compared to all the proposals
already on the table", and that "we need key progress in agriculture subsidies
and tariffs on agriculture and industrial tariffs now". He continued that
"Indeed, today reaching agreement on subsidies depends on additional concessions
from the US equivalent to less than a week's worth of transatlantic trade. It
depends on an additional handful of percentage reduction in the highest
agriculture tariffs by the EU and Japan. It depends on an additional handful of
percentage reduction in the highest industrial tariffs by emerging economies
such as Brasil or India. All this to be done, not by tomorrow, but over a
transition period of several years to leave space for a smooth adjustment."
7/2. President Bush signed HR 1830
[LOC |
WW], an act that
extends the Andean Trade Preference Act (ATPA) through February 29, 2008. It expired
on June 30, 2007. See, White House
release and
statement of Susan Schwab.
7/2. The Office of the U.S. Trade Representative (OUSTR)
announced that USTR Susan Schwab met with Australian Minister for Trade Warren Truss. The
USTR's release states that the two discussed the U.S. Australia FTA, which has been in effect
since 2005.
6/29. The Senate amended and approved by unanimous consent HR 556
[LOC |
WW], the
"Foreign Investment and National Security Act of 2007", a bill pertaining to the
Committee on
Foreign Investment in the United States (CFIUS) and regulation of foreign ownership of
companies for national security or protectionist purposes. The House passed an earlier version
of the bill on February 28, 2007, by a vote of 423-0. See,
Roll Call No. 110. The Senate
approved the bill as HR 556, but substituted the language of S 1610
[LOC |
WW]. The
House is scheduled to consider the Senate version of the bill, under suspension
of the rules, on Tuesday, July 10, 2007.
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Washington Tech Calendar
New items are highlighted in red. |
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Monday, July 9 |
The House will not meet.
The Senate will return from its Independence
Day recess at 2:00 PM. It will begin consideration of HR 1585
[LOC |
WW], the defense
authorization bill for FY 2008.
8:30 AM - 12:00 NOON. The
Electronic Transaction Association (ETA) will host
an event titled "Second Annual ETA Payments Education and Discussion Forum".
The ETA states that this event "is designed to provide Congressional staff,
regulators, and law enforcement with a working knowledge of the acquiring side
of the electronic payments business. Topics will include an overview of the
roles/responsibilities of entities in the payments system; the components of
an electronic transaction; and industry efforts to protect cardholder data." See,
notice [PDF] and
program agenda [PDF]. For more
information, and to RSVP, contact Rob Drozdowski at 202-828-2635 x203 or rob dot drozdowski
at electran dot org. A continental breakfast will be served. There is no charge. Location:
Columbus Room, Union Station.
10:00 AM. The U.S. Court of
Appeals (FedCir) will hear oral argument in SRI International v. Internet
Security, App. Ct. No. 2007-1065, a patent infringement case. Location: Courtroom
201, 717 Madison Place, NW.
10:00 AM. The U.S. Court
of Appeals (FedCir) will hear oral argument in Cybersettle v. National
Arbitration Forum, App. Ct. No. 2007-1092, a
patent infringement case. Location: Courtroom 203, 717 Madison Place, NW.
2:00 - 3:30 PM. The U.S.
Chamber of Commerce's Coalition Against
Counterfeiting and Piracy (CACP) will meet. For more information, contact
counterfeiting at uschamber dot com or 202-463-5500. Location: U.S. Chamber,
1615 H St., NW.
Deadline to submit petitions to deny and
initial comments to the Federal Communications Commission
(FCC) regarding its review of the proposed merger of XM Satellite Radio Holdings and
Sirius Satellite Radio. See,
Public
Notice [5 pages in PDF] (DA 07-2417).
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Tuesday, July 10 |
The House will return from its Independence Day
recess. It will meet at 2:00 PM for legislative business. It will consider numerous
items under suspension of the rules. The agenda includes consideration of HR 556
[LOC |
WW], the
"Foreign Investment and National Security Act of 2007", a bill pertaining
to the Committee on Foreign Investment in the United States (CFIUS) and regulation of
foreign ownership of companies for national security or protectionist purposes. The agenda
also includes consideration of HR 660
[LOC |
WW],
the "Court Security Improvement Act of 2007", a bill with numerous
provisions related to court security, and a provision regarding participation
by senior status judges. Votes will be postponed until 6:30 PM. See, Rep.
Hoyer's
weekly calendar [PDF].
10:00 AM. The U.S. Court
of Appeals (FedCir) will hear oral argument in Nilssen v. Osram Sylvania,
App. Ct. No. 2006-1550, a patent infringement case. The
U.S.
District Court (NDIll) held that the patents in suit are unenforceable for
several reasons, including that Nilssen did not pay a large entity fee to the
USPTO, but granted a non-exclusive license to a large corporation. Location: Courtroom
201, 717 Madison Place, NW.
2:00 PM. The Open Internet Coalition will host a
telephonic news conference titled "Consumer Advocates to Call for
Pro-Consumer Wireless Policy Agenda". The speakers will be Tim Wu
(Columbia Law School), Chris Murray (Consumers Union), Ben Scott (Free Press),
and Gigi Sohn (Public Knowledge). To participate, call 877-250-3043. The code
is 6386893#.
Deadline to submit comments to the Rural
Utilities Service (RUS) in response to its notice of proposed rulemaking regarding its
Rural Broadband Access Loan and Loan Guarantee Program. The RUS proposes to change
its rules regarding funding in competitive markets and new eligibility requirements, new
equity and market survey requirements, and new legal notice requirements. See,
notice in the Federal Register, May 11, 2007, Vol. 72, No. 91, at Pages
26742-26759
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Wednesday, July 11 |
The House will meet at 10:00 AM for legislative
business. See, Rep. Hoyer's
weekly calendar [PDF].
POSTPONED. 10:00 AM. The
House Commerce
Committee's (HCC) Subcommittee on Commerce, Trade, and Consumer Protection will hold a
hearing titled "From Imus to Industry: The Business of Stereotypes and Degrading
Images Hearing". The hearing will be webcast by the HCC. Location: Room 2123,
Rayburn Building.
10:00 AM. The House Commerce
Committee's (HCC) Subcommittee on Telecommunications and the Internet will hold a hearing
titled "Wireless Innovation and Consumer Protection". The hearing will be
webcast by the HCC. Location: Room 2322, Rayburn Building.
10:00 AM. The
Homeland Security and Governmental Affairs
will hold a hearing titled "Strengthening the Unique Role of the Nation’s
Inspectors General". See,
notice. Location: Room 342, Dirksen Building.
10:00 AM. The U.S. Court of Appeals
(FedCir) will hear oral argument in Toshiba v. Juniper Networks, App.
Ct. No. 2006-1612, a patent infringement case involving telecommunications equipment.
Location: Courtroom 203, 717 Madison Place, NW.
10:00 AM. The Center
for Democracy and Technology (CDT) and other groups will host a news conference to
announce and explain the filing of a complaint with the
Federal Trade Commission (FTC) against railway contractors
alleging violation of the Fair Credit Reporting Act (FCRA) in connection with their alleged
administration of criminal background checks on employees via data
aggregators. The CDT stated in a release that
"these FCRA violations are widespread and can lead to dire consequences for workers who
have been improperly flagged by the data aggregators who provide the checks." This news
conference will also be teleconferenced. To participate telephonically, call 800-377-8846.
The participant code is #31100533. Breakfast will be served. For more information, contact
David McGuire at 202-637-9800 x106. Location: CDT, 11th floor, 1634 I St., NW.
11:30 AM. The Business
Software Alliance (BSA) and the Economist magazine's Economist Intelligence Unit (EIU)
will host a telephonic news conference to announce and explain a report titled "IT
Competitiveness Index". The BSA stated in a release that this report is ranks
"64 nations on the extent to which each nation supports a thriving IT sector",
based upon "25 indicators in six categories".Denis McCauley (EIU) and Robert
Holleyman (head of the BSA). To obtain the phone number and code to participate in the
conference, contact Karen Dorbin at Karen dot Dorbin at dittus com com or
202-715-1538. (The BSA and EIU will hold additional news conferences in
Singapore and London.)
12:00 NOON - 2:00 PM. The Federal
Communications Bar Association's (FCBA) International Telecommunications Committee will
host a brown bag lunch. The speaker will be Helen Domenici (Chief of the FCC's International
Bureau). For more information, contact LeJuan Butler at lbutler at unfoundation dot org or
202-887-9040. Location: Harris Wiltshire & Grannis, 1200 18th St., NW.
2:30 - 4:00 PM. The Department of
State's (DOS) Advisory Committee on International Communications and Information
Policy (ACICIP) will meet. The agenda includes a "report on recent bilateral
discussions with China's Ministry of Information Industries and with Mexico's Ministry of
Communications and Transportation, as well as upcoming bilateral discussions with India's
Ministry of Communications and Information Technology and with Brazil's
Ministry of Communications; and also to report on recent developments
regarding the President's Digital Freedom Initiative". See,
notice in the Federal Register, June 14, 2007, Vol. 72, No. 114, at Page 32939.
Location: Loy Henderson Auditorium, Harry Truman Building, 2201 C St., NW.
Day one of a two day event hosted by the
Federal Trade Commission (FTC) titled "Spam
Summit: The Next Generation of Threats and Solutions". See, FTC
notice and
Spam Summit web page.
Location: FTC's satellite building conference center, 601 New Jersey Ave., NW.
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Thursday, July 12 |
The House will meet at 10:00 AM for legislative
business. See, Rep. Hoyer's
weekly calendar [PDF].
8:30 - 11:00 AM. The Software and Information
Industry Association (SIIA) will host a conference titled "The Framework for Global
Electronic Commerce: What We Got Right, What We Didn’t and What’s Next? 10th Anniversary
of the Magaziner Report". The speakers will include Ira Magaziner, Stewart Baker
(Assistant Secretary for Policy at the DHS), Jamie Estrada (Department of Commerce) and
Michael Mandel (Business Week). Location: China Room, Renaissance Mayflower Hotel, 1127
Connecticut Avenue, NW.
10:00 AM. The Senate
Judiciary Committee (SJC) may hold an executive business meeting. The agenda again
includes consideration of S 1145
[LOC |
WW], the
"Patent Reform Act of 2007", and consideration of the nominations
of William Osteen (to be a Judge of the U.S. District Court for the Middle
District of North Carolina), Martin Karl Reidinger (USDC, WD North Carolina),
Timothy DeGiusti (USDC, WD Oklahoma), and
Janis Lynn Sammartino (USDC, SD
California). The SJC rarely follows its published agenda. See,
notice.
Location: Room 226, Dirksen Building.
10:00 AM. The
Senate Commerce Committee (SCC) will hold a hearing titled "Number
Portability". See,
notice. Location: Room 253, Russell Building.
12:00 PM - 1:30 PM. The DC Bar
Association will host a panel discussion titled "Dual-Use Export Control
Regulations For China". The speakers will be Mario Mancuso (Under Secretary of
Commerce for Industry and Security), Matthew Borman (Deputy Assistant Secretary for Export
Administration), Peter Lichtenbaum (BAE Systems, Inc.), and Mary Peters (Hogan &
Hartson). See,
notice. For more information, call 202-626-3463. The price to attend ranges from $5 to
$35. Location: Wiley Rein, 1776 K St., NW.
Day two of a two day event hosted by the
Federal Trade Commission (FTC) titled "Spam
Summit: The Next Generation of Threats and Solutions". See, FTC
notice and
Spam Summit web page.
Location: FTC's satellite building conference center, 601 New Jersey Ave., NW.
? TIME? The Forum on Technology &
Innovation (FTI) might host a forum. The FTI has a history of advertising
events, and then canceling them without notice. Location?
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Monday, July 16 |
Deadline to submit reply comments to the
Federal Communications Commission (FCC) in response to its Notice of Proposed
Rulemaking (NPRM) regarding its collection of data on broadband deployment. This NPRM
is FCC 07-17 in WC Docket No. 07-38. See,
notice in the Federal Register, May 16, 2007, Vol. 72, No. 94, at Pages
27519-27535.
Deadline to submit initial comments to the Federal
Communications Commission (FCC) in response to its
Second Further
Notice of Proposed Rulemaking (2ndFNPRM) [26 pages in PDF] in its proceeding titled
"Carriage of Digital Television Broadcast Signals: Amendment to Part 76 of the
Commission's Rules". The FCC adopted this item on April 25, 2007, and released it
on May 4, 2007. This item is FCC 07-71 in CS Docket No. 98-120. See,
notice in the Federal Register, June 6, 2007, Vol. 72, No. 108, at Pages
31244-31250.
Deadline to submit comments to the
Copyright Office (CO) regarding its final list
of stations listed in affidavits sent to the CO in which the owner or licensee of the
station attests that the station qualifies as a specialty station. See,
notice in the Federal Register, June 15, 2007, Vol. 72, No. 115, at Pages
33251-33252.
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