12/7. The U.S. Court of Appeals (DCCir) issued its opinion [8 pages in PDF] in Sprint Nextel v. FCC, petitions for review of the Federal Communication's Commission's (FCC) deemed granting of a forbearance petition of Verizon. The Court of Appeals denied the petitions.

Section 10 of the Communications Act, which is codified at 47 U.S.C. § 160(c), provides that "Any telecommunications carrier, or class of telecommunications carriers, may submit a petition to the Commission requesting that the Commission exercise the authority granted under this section with respect to that carrier or those carriers, or any service offered by that carrier or carriers. Any such petition shall be deemed granted if the Commission does not deny the petition for failure to meet the requirements for forbearance under subsection (a) of this section within one year after the Commission receives it, unless the one-year period is extended by the Commission. The Commission may extend the initial one-year period by an additional 90 days if the Commission finds that an extension is necessary to meet the requirements of subsection (a) of this section. The Commission may grant or deny a petition in whole or in part and shall explain its decision in writing." (Emphasis added.)

On December 20, 2004, Verizon filed with the FCC a petition for forbearance from Title II of the Communications Act, and the FCC's Computer Inquiry rules. See, Verizon's December 20, 2004, petition [29 pages in PDF], its letter of February 7, 2006 ( part I [25 pages in PDF] and part II  [PDF]), and its February 17, 2006, letter [1 page in PDF]. This proceeding is Docket No. 04-440.

The FCC adopted no order or decision upon a majority vote of the members of the Commission. The FCC issued only a short release, and Commissioners wrote separate statements. There were only four Commissioners at the time, and they split 2-2.

The FCC issued a release on March 21, 2006, that states as follows: "The Verizon telephone companies (Verizon) filed a petition for forbearance from Title II of the Communications Act of 1934, as amended, and the Commission's Computer Inquiry rules on December 20, 2004. On December 19, 2005, the Commission extended the forbearance deadline to March 19, 2006. Verizon amended its petition on February 7 and February 17th, 2006. Section 10(c) provides that a forbearance petition ``shall be deemed granted if the Commission does not deny the petition for failure to meet the requirements for forbearance under subsection (a) within one year after the Commission receives it, unless the one year period is extended by the Commission.´´ This is to inform the public that, pursuant to section 10(c), the relief requested in Verizon’s petition was deemed granted by operation of law, effective March 19, 2006."

See, story titled "FCC Announces that Verizon Petition for Forbearance is Deemed Granted" in TLJ Daily E-Mail Alert No. 1,334, March 22, 2006.

Sprint Nextel and others filed petitions for review. Verizon intervened in support of the FCC. The various actions were consolidated. The Court of Appeals denied the petitions.

The Court of Appeals reasoned that it has authority to review final orders of federal administrative agencies. It asked, rhetorically, "But in this case where is the Commission ``order,´´ and where is the ``agency action´´?"

It concluded that there was none; the forbearance petition was denied by operation of a statute, not by agency action. It wrote that "The deadlocked vote cannot be considered an order of the Commission nor can it constitute agency action. The votes were actions of the individual Commissioners, not the Commission."

The Court of Appeals continued that "The Commission did not grant Verizon's petition and it did not deny it. In those instances in which the Commission does not deny a forbearance petition, Congress has spelled out the legal effect: the petition ``shall be deemed granted.´´ 47 U.S.C. § 160(c). The grant does not result in reviewable agency action. Congress, not the Commission, ``granted´´ Verizon’s forbearance petition."

The Court of Appeals also commented that "Petitioners also argue that failing to review a ``deemed granted´´ forbearance petition will enable the Commission, by simply not acting, to evade judicial review of any forbearance petition the Commission wants to grant. But that is the consequence of the system Congress mandated in § 160(c)."

This case is Sprint Nextel Corporation, et al. v. FCC and USA, U.S. Court of Appeals for the District of Columbia, petitions for review of a deemed granting of a forbearance petition, App. Ct. Nos. 06-1111, 06-1113, 06-1115, 06-1167, and 06-1200.

There is an effort in the Congress to change the "deemed granted" language of Section 160. On October 22, 2007, Rep. John Dingell (D-MI) and Rep. Ed Markey (D-MA) introduced HR 3914 [LOC | WW], the "Proper Forbearance Procedures Act of 2007".

This bill would remove the "deemed granted" clause from the forbearance petition section. See, story titled "Reps. Dingell and Markey Introduce Bill to End Deemed Granting of FCC Forbearance Petitions" in TLJ Daily E-Mail Alert No. 1,661, October 24, 2007.

Rep. Dingell and Rep. Markey stated in a release on December 7 that "The Court found what we already knew: On the critical matter of protecting consumers, the FCC failed to do its job. The decision casts the spotlight on the need to reform the forbearance process to ensure written opinions and to eliminate the ability of a forbearance petition to be `deemed granted´ simply by agency inaction."

Rep. Dingell is Chairman of the House Commerce Committee (HCC). Rep. Markey is Chairman of the HCC's Subcommittee on Telecommunications and the Internet.

As of December 7, HR 3914 had 9 sponsors -- all Democrats on the HCC. This bill has no Republican sponsors, and there are likely several Democrats on the Committee who would not support this bill.

12/7. AT&T announced in an interview with USA Today that it will allow its customers to use other devices on its wireless network. See, USA Today story titled "AT&T flings cellphone network wide open" and dated December 5, 2007.

This announcement comes one week after a similar announcement by Verizon Wireless. See, story titled "Verizon Wireless to Open its Network to Others' Devices, Software and Apps" in TLJ Daily E-Mail Alert No. 1,681, December 1, 2007.

Neither company has published detailed technical specifications. AT&T did not publish any news release or statement in its web site.

Rep. John Dingell (D-MI), the Chairman of the House Commerce Committee (HCC), stated in a release that "I am pleased to hear AT&T's announcement, which continues a consumer-friendly trend of more open wireless networks. The devil is in the details, and I urge the company to implement its policy in a way that maximizes consumer choice. It is appropriate that barriers to consumer movement between and on wireless networks continue to fall, and I will be watching with interest as these developments unfold."

See also, story titled "Open Handset Alliance Announces Android and New Members" in TLJ Daily E-Mail Alert No. 1,670, November 6, 2007.

12/6. On December 5, 2007, President Bush nominated Judge Mark Filip to be the Deputy Attorney General, the number two position at the Department of Justice (DOJ). See, White House release.

If confirmed by the Senate, he would replace Paul McNulty, who has resigned. Sen. Patrick Leahy (D-VT), the Chairman of the Senate Judiciary Committee (SJC), stated at an SJC business meeting on December 6 that the SJC will hold a hearing on the nomination during the week of December 10.

Filip is currently a Judge of the U.S. District Court for the Northern District of Illinois. He was appointed by President Bush. He is also a lecturer at the University of Chicago (UC) law school. See, UC bio.

Previously, he worked in the Chicago office of the law firm of Skadden Arps, for the U.S. Attorney's Office for the Northern District of Illinois, and as a law clerk for Justice Antonin Scalia.

12/7. House Republicans selected new Subcommittee ranking members for the House Commerce Committee (HCC).

This follows former Rep. Denny Hastert's (R-IL) resignation from the House, effective November 27, 2007. See, release of the Office of the Clerk of the House of Representatives.

Rep. Fred Upton (R-MI), who is currently the ranking member on the HCC's Subcommittee on Telecommunications and the Internet (STI), will become the ranking member of the Subcommittee on Energy, a position which Rep. Hastert held.

Rep. Cliff Stearns (R-FL), who is currently the ranking member on the Subcommittee on Commerce, Trade and Consumer Protection (SCTCP), will become the ranking member of the STI.

Rep. Ed Whitfield (R-KY), who is currently the ranking member of the Subcommittee on Oversight and Investigations (SOI), will become the ranking member of the SCTCP. Rep. John Shimkus (R-IL) will become the ranking member of the SOI. The SOI has examined waste, fraud and abuse in the Federal Communications Commission's (FCC) scandal plagued e-rate tax and subsidy program, as well as pretexting and related activity in the communications industry.

Rep. Nathan Deal (R-GA) will remain the ranking member of the Subcommittee on Health, which has jurisdiction over digitization of medical records, and health sector privacy issues.

12/6. President Bush nominated Jonathan Adelstein (at right) to be a Commissioner of the Federal Communications Commission (FCC) for a term expiring June 30, 2013. He is currently an FCC Commissioner. See, White House release. Adelstein wrote in a statement that he thanks President Bush and Sen. Harry Reid (D-NV) for his reappointment. See also, statement by Kevin Martin, statement by Deborah Tate, statement by Robert McDowell, and statement by Michael Copps.

12/6. The Senate Judiciary Committee (SJC) approved the nominations of Gregory Brower (to be U.S. Attorney for the District of Nevada), Diane Humetewa (to be U.S. Attorney for the District of Arizona), and Edmund Booth (to be U.S. Attorney for the Southern District of Georgia) by unanimous consent, without debate.

12/6. President Bush nominated Stephen Limbaugh to be a Judge of the U.S. District Court for the Eastern District of Missouri. See, White House release.

12/6. President Bush nominated Ed Schafer to be Secretary of Agriculture. If confirmed by the Senate, he will replace Mike Johanns, who has resigned. See, White House release.

12/6. President Bush nominated William Smith to be a  Judge of the U.S. Court of Appeals for the 1st Circuit. See, White House release.

12/6. Matthew Skelton, who was an attorney advisor in the Copyright Office's Office of Policy and International Affairs, has gone to work for Microsoft.

The House will meet at 3:00 PM in pro forma session only. See, Rep. Hoyer's schedule for the week.

The Senate will meet at 3:00 PM. It will resume consideration of HR 2419 [LOC | WW], the farm bill. The Senate may take up FISA reform legislation later in the week.

9:00 AM - 12:30 PM. The Copyright Alliance will host a half day event titled "Copyright and the University: An Academic Symposium". Breakfast will be served from 8:00 AM. The program will begin at 9:00 AM. Patrick Ross (CA Executive Director) will speak. Rep. Rep. Keller (R-FL) is scheduled to give the keynote address. The first panel will begin at 10:00 AM. The speakers will be Warren Arbogast (Boulder Management Group), Michael Einhorn (Consor), James Gibson (University of Richmond School of Law), Peter Jaszi (American University Law School), and Michael Ryan (George Washington University Law School). The moderator will be Andrew Noyes (National Journal's Technology Daily). The second panel will begin at 11:20 AM. The speakers will be Patricia Aufderheide (American University), Cheryl Elzy (Illinois State University), Lee Hollaar (University of Utah), Nathan Perry (University of Utah), Marybeth Peters (Register of Copyrights). The moderator will be Paul Sweeting (ContentAgenda). See, notice and agenda. Location: George Washington University, Jack Morton Auditorium, Media and Public Affairs Building, 805 21st St., NW.

Day one of a two day workshop hosted by the Federal Trade Commission (FTC) titled "Security in Numbers: SSNs and ID Theft". See, workshop web site. Location: FTC Conference Center, 601 New Jersey Ave., NW.

2:00 PM. Deadline to file amicus briefs on the merits in support of the respondent (LG Electronics) with the Supreme Court of the US (SCUS) in Quanta Computer v. LG Electronics, a patent infringement case. See, story titled "Supreme Court Grants Certiorari in Patent Exhaustion Case" in TLJ Daily E-Mail Alert No. 1,647, September 27, 2007.

Deadline to submit comments to the Copyright Royalty Judges regarding their proposed regulations that set the rates and terms for the use of sound recordings in transmissions made by new subscription services and for the making of ephemeral recordings necessary for the facilitation of such transmissions for the period commencing from the inception of the new subscription service through December 31, 2010. See, notice in the Federal Register: November 9, 2007 Vol. 72, No. 217, at Pages 63532-63535.

The House will meet at 10:30 AM for morning hour, and at 12:00 NOON for legislative business. It is scheduled to consider numerous items under suspension of the rules, including HR 2601 [LOC | WW], "Do-Not-Call Registry Fee Extension Act of 2007", and HR 3541 [LOC | WW], the "Do-Not-Call Improvement Act of 2007". Votes will be postponed at least until 6:30 PM. See, Rep. Hoyer's schedule for the week.

Day two of a two day workshop hosted by the Federal Trade Commission (FTC) titled "Security in Numbers: SSNs and ID Theft". See, workshop web site. Location: FTC Conference Center, 601 New Jersey Ave., NW.

10:00 AM. The Senate Homeland Security and Government Affairs Committee (SHSGAC) will hold a hearing titled "E-Government 2.0: Improving Innovation, Collaboration, and Access". See, notice. Location: Room 342, Dirksen Building.

1:00 - 3:00 PM. The Architectural and Transportation Barriers Compliance Board's (ATBCB) Telecommunications and Electronic and Information Technology Advisory Committee will meet by teleconference. See, notice in the Federal Register, November 1, 2007, Vol. 72, No. 211, at Pages 61827-61828.

Deadline to submit comments to the Federal Communications Commission (FCC) in response to FCC Chairman Kevin Martin's proposal [PDF] for revisions to the FCC's obsolete rules regulating ownership of newspapers and broadcast media. See, FCC's MB Docket No. 06-121, and story titled "Martin Releases Media Ownership Proposal" in TLJ Daily E-Mail Alert No. 1,675, November 13, 2007.

The House will meet at 10:00 AM for legislative business. See, Rep. Hoyer's schedule for the week.

12:00 NOON - 1:30 PM. The DC Bar Association will host a program titled "Communications Essentials - How Networks Work". The speakers will be Richard Hovey and Nick Alexander (both of the FCC). The price to attend ranges from free to $10. For more information, call 202-626-3463. See, notice. Location: DC Bar Conference Center, B-1 Level, 1250 H St., NW.

2:00 PM. The House Judiciary Committee's (HJC) Antitrust Task Force will hold a hearing titled "Media Consolidation: Impact on Minority Ownership and Localism". See, notice. Location: Room 2141, Rayburn Building.

3:00 - 5:00 PM. The Women's Bar Association of the District of Columbia's Communications Law Forum will host an event titled "Holiday Tea". The speaker will be Linda Greenhouse (New York Times). The price to attend ranges from $40 to $50. For more information, call Laura Mow at 202-508-5835. See, notice. Location: Crystal Ballroom, Willard Inter Continental Hotel, 1401 Pennsylvania Ave., NW.

? The Department of Homeland Security's (DHS) Data Privacy and Integrity Advisory Committee will meet.

Deadline to submit comments to the Department of the Treasury (DOT) and the Federal Reserve Board (FRB) regarding their proposed rules implementing the Unlawful Internet Gambling Enforcement Act of 2006 (UIGEA). See, notice in the Federal Register, October 4, 2007, Vol. 72, No. 192, at Pages 56680-56699.

The House will meet at 10:00 AM for legislative business. See, Rep. Hoyer's schedule for the week.

10:00 AM. The Senate Commerce Committee (SCC) will hold an oversight hearing regarding the Federal Communications Commission (FCC). The witnesses will be the five Commissioners of the FCC. See, notice. Location: Room 253, Russell Building.

10:00 AM. The House Judiciary Committee's (HJC) Subcommittee on Courts, the Internet and Intellectual Property will hold a hearing on HR 4279, the "Prioritizing Resources and Organization for Intellectual Property Act of 2007". See, notice. Location: Room 2141, Rayburn Building.

6:00 PM. The Federal Communications Bar Association (FCBA) will host a panel discussion titled "Enforcement Of U.S. Patent Laws: International Activities, Standards For Patentability And Willfulness". This event qualifies for continuing legal education (CLE) credits. The speakers will be Joshua Turner, Karl Renner (Fish & Richardson) and Kevin Anderson (Wiley Rein). Location: Wiley Rein, 1776 K St., NW.

The House will meet at 9:00 AM for legislative business. See, Rep. Hoyer's schedule for the week.

10:00 AM. The Department of State's (DOS) Telecommunication Advisory Committee (ITAC) will meet as ITAC Study Group B to prepare advice on U.S. positions for the meetings of the Study Group of the International Telecommunication Union -- Telecommunication Standardization Sector (ITU-T). See, notice in the Federal Register, November 13, 2007, Vol. 72, No. 218, at Page 63951. Location: undisclosed.

Deadline to submit comments to National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) regarding its DRAFT SP 800-39 [60 pages in PDF], titled "Managing Risk from Information Systems: An Organizational Perspective".

Deadline to submit comments to the Securities and Exchange Commission (SEC) regarding its proposed rules changes pertaining to electronic filings with the SEC. The SEC proposes that mutual funds and other companies seeking exemptions under the Investment Company Act of 1940 submit their applications electronically, thus making them available to the public on the internet via the SEC's Electronic Data Gathering, Analysis, and Retrieval (EDGAR) system. See, SEC notice [41 pages in PDF] and notice in the Federal Register, November 9, 2007, Vol. 72, No. 217, at Pages 63513-63523.

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