8/12. The U.S. Court of Appeals (2ndCir) issued its opinion [28 pages in PDF] in USA v. Robert Simels, a criminal case in which the Court of Appeals held that importing and possessing electronic surveillance devices, such as equipment for intercepting cell phone conversations, does not violate 18 U.S.C. § 2512(1)(a)&(b) if the equipment is "inoperable" in the US.

Simels, a criminal defense attorney, was charged and convicted of numerous counts of conspiracy to obstruct justice, attempted obstruction of justice, and bribery in connection with his plans to bribe and intimidate trial witnesses against his client. His client was a citizen of Guyana who was accused of being the leader of a criminal enterprise that imported large amounts of cocaine into the US. The client subsequently pled guilty.

This article focuses on just two counts -- importing and possessing electronic surveillance devices. The devices were laptops and other equipment used for intercepting cell phone communications. Simels imported them into the US from Guyana in connection with his defense of his client.

The equipment was capable of intercepting analog phone conversations in Guyana before digital service replaced analog. The devices were not capable of intercepting cell phone conversations in the US. Simels asserted that he imported them in connection with presenting evidence of conversations intercepted in Guyana.

Nevertheless, Simels was charged and convicted under Section 2512, which provides, in relevant part, as follows:

"  (1) ... any person who intentionally--
      (a) sends through the mail, or sends or carries in interstate or foreign commerce, any electronic, mechanical, or other device, knowing or having reason to know that the design of such device renders it primarily useful for the purpose of the surreptitious interception of wire, oral, or electronic communications;
      (b) manufactures, assembles, possesses, or sells any electronic, mechanical, or other device, knowing or having reason to know that the design of such device renders it primarily useful for the purpose of the surreptitious interception of wire, oral, or electronic communications, and that such device or any component thereof has been or will be sent through the mail or transported in interstate or foreign commerce;
   shall be fined under this title or imprisoned not more than five years, or both

The Court of Appeals affirmed the judgment of the District Court in all things except the Section 2512 counts.

"The issue is whether importation and possession of an inoperable device violates section 2512." The Court of Appeals concluded that, "with respect to electronic devices, Congress covered only those ``which can be used´´ to intercept communications and added, as a mens rea requirement, that the device be known to have been designed for the purpose of surreptitious interception."

This case is USA v. Robert Simels, U.S. Court of Appeals for the 2nd Circuit, App. Ct. No. 09-5117-cr, an appeal from the U.S. District Court for the Eastern District of New York, Judge Gleeson presiding. Judge Jon Newman wrote the opinion of the Court of Appeals, in which Judges Calabresi and Hall joined.

8/10. Rick Kaplan, Chief of the Federal Communications Commission's (FCC) Wireless Telecommunications Bureau (WTB) sent a letter to AT&T Mobility Spectrum LLC and Qualcomm Inc. regarding AT&T's purchase of spectrum licenses from Qualcomm.

On December 20, 2010, the two companies announced that AT&T would purchase spectrum licenses from Qualcomm for $1,925 Million. AT&T stated in a release that the spectrum is in the lower 700 MHz band, and "will bolster AT&T's ability to provide an advanced 4G mobile broadband".

AT&T added that "The spectrum covers more than 300 million people total nationwide: 12 MHz of Lower 700 MHz D and E block spectrum covers more than 70 million people in five of the top 15 U.S. metropolitan areas -- New York, Boston, Philadelphia, Los Angeles and San Francisco; 6 MHz of Lower 700 MHz D block spectrum covers more than 230 million people across the rest of the U.S."

The purchase of Qualcomm spectrum requires FCC approval of the license transfers. Kaplan's letter discloses that the FCC will not act on the request for some time, and that it will consider this request along with the AT&T T-Mobile USA merger, which also entails license transfers.

Kaplan wrote that these Qualcomm transfers and AT&T's proposed acquisition of T-Mobile USA "raise a number of related issues, including, but not limited to, questions regarding AT&T's aggregation of spectrum throughout the nation, particularly in overlapping areas".

"As a result, we have concluded that the best way to determine whether either or both of the proposed transactions serve the public interest is to consider them in a coordinated manner at this time, without prejudice to independent treatment at a later date." Kaplan added in a footnote to this statement that the FCC "is not at this time taking the further step of formally consolidating the two transactions."

8/12. President Obama signed and released another notice -- the eleventh in a series of notices -- titled "Continuation of Emergency Regarding Export Control Regulations".

President Obama, and before him, President Bush, have routinely issued an emergency notice every year at about this time that maintains in effect the export regulation regime.

The "Export Administration Act" expired in 2001. Some members of the House and Senate worked on enacting replacement legislation in 2001 and 2002. However, no replacement bill was enacted, and there has been little legislative activity since on this subject.

Meanwhile, the Department of Commerce's (DOC) Bureau of Industry and Security (BIS), which was formerly named the Bureau of Export Administration (BXA), continues to revise and enforce implementing regulations for dual use items, which include many information and communications technology products. These regulations pertain to, among other things, exports and "deemed exports" of computers, software, and encryption products. These regulations also regulate employment in some situations.

The export control regime is outdated, complex, burdensome, and harms the competitiveness of some US companies. Moreover, the Obama administration is working towards reforming the system, administratively rather than legislatively. See, story titled "Obama Addresses Export Control Reform Process" in TLJ Daily E-Mail Alert No. 2,185, December 21, 2011.

The just released notice states in full that "On August 17, 2001, consistent with the authority provided to the President under the International Emergency Economic Powers Act (50 U.S.C. 1701 et seq.), the President issued Executive Order 13222. In that order, he declared a national emergency with respect to the unusual and extraordinary threat to the national security, foreign policy, and economy of the United States in light of the expiration of the Export Administration Act of 1979, as amended (50 U.S.C. App. 2401 et seq.). Because the Export Administration Act has not been renewed by the Congress, the national emergency declared on August 17, 2001, must continue in effect beyond August 17, 2011. Therefore, in accordance with section 202(d) of the National Emergencies Act (50 U.S.C. 1622(d)), I am continuing for 1 year the national emergency declared in Executive Order 13222. This notice shall be published in the Federal Register and transmitted to the Congress."

8/11. Grant Sieffert, head of the Telecommunications Industry Association (TIA), sent a letter to the Federal Communications Commission (FCC) regarding its review of the merger of AT&T and T-Mobile USA. Seiffert wrote that "Expanded broadband deployment, more efficient use of scarce wireless spectrum, and enhanced investment in the information and communications technology (``ICT´´) sector are of critical importance to the nation’s future, and should be given substantial weight in the Commission’s review of the transaction."

8/11. The Federal Communications Commission (FCC) filed its brief [139 pages in PDF] with the U.S. Court of Appeals (DCCir) in Rural Cellular Association v. FCC, a petition for review of the FCC's order [18 pages in PDF] amending FCC rules to reclaim high cost universal service support surrendered by a competitive eligible telecommunications carrier (ETC) when it relinquishes ETC status in a particular state. The FCC adopted and released this order on December 30, 2010. This order is FCC 10-205 in WC Docket No. 05-337 and CC Docket No. 96-45. See also, story titled "FCC Releases High Cost USF Order" in TLJ Daily E-Mail Alert No. 2,191, January 3, 2011. This case is Rural Cellular Association and Universal Service for America Coalition v. FCC and USA, U.S. Court of Appeals for the District of Columbia, App. Ct. No. 11-1094.

1:00 - 4:00 PM. The Federal Communications Bar Association's (FCBA) Young Lawyers Committee will host an event titled "Summer Rooftop BBQ and Pool Party". The price to attend is $15. For more information, contact Justin Faulb at faulb at lojlaw dot com or Brendan Carr at BCarr at wileyrein dot com.

The House will not meet. It is in recess until 2:00 PM on September 7. However, it will hold pro forma sessions twice per week until then.

The Senate will not meet. It is in recess until 2:00 PM on September 6. However, it will hold pro forma sessions twice per week until then.

11:00 AM - 12:30 PM. The Heritage Foundation (HF) will host a panel discussion titled "National EMP Recognition Day: The Threat That Can't Be Ingnored". The speakers will be Rep. Roscoe Bartlett (R-MD), Peter Pry (EMPact America), Frank Gafney (Center for Security Studies), Drew Miller, and James Carafano (HF). This event is free and open to the public. See, notice. Location: HF, 214 Massachusetts Ave., NE.

Deadline to submit reply comments to the Federal Communications Commission (FCC) regarding the report submitted to the FCC on June 30, 2011, by the technical working group co-chaired by LightSquared and the U.S. Global Positioning System Industry Council (USGIC). See, FCC International Bureau's (IB) order dated June 30, 2011. It is DA 11-1133 in DA 11-1133. See also report, part 1, part 2, part 3, part 4, part 5, part 6, and part 7.

EXTENDED FROM AUGUST 8. Extended deadline to submit comments to the Federal Trade Commission (FTC) in response to its notice in the Federal Register regarding the proposed self-regulatory guidelines submitted to the FTC by Aristotle International, Inc. under the safe harbor provision of the Children's Online Privacy Protection Act (COPPA) Rule. See, Federal Register, Vol. 76, No. 123, Monday, June 27, 2011, at Pages 37290-37291. See, notice of extension.

Deadline to submit comments to the National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) regarding its draft NIST IR-7275 Rev. 4 [77 pages in PDF] titled "Specification for the Extensible Configuration Checklist Description Format (XCCDF) Version 1.2".

The House will meet in pro forma session at 11:30 AM.

The Senate will meet in pro forma session at 11:00 AM.

12:30 - 1:30 PM. The American Bar Association (ABA) will host a webcast panel discussion titled "Tax Aspects of Technology Transactions". The speakers will be Roger Royse (Royse Law Firm) and Kenneth Appleby (Foley & Lardner). Prices vary. CLE credits. See, notice.

TIME? The American Bar Association (ABA) will host a webcast panel discussion titled "LinkedIn for Lawyers".

1:00 PM. The US Telecom will host a webinar titled "Navigating the Rising Tide of Cyber Crime". The speaker will be Tom Dotson (CIO of SureWest). Free. See, notice.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) [36 pages in PDF] regarding removing the International Settlements Policy (ISP) from all U.S. international routes except Cuba. The FCC adopted this NPRM on May 12, 2011, and released the text on May 13, 2011. This item is FCC 11-75 in IB Docket No. 11-80. See, notice in the Federal Register, Vol. 76, No. 138, Tuesday, July 19, 2011, at Pages 42625-42631.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) [82 pages in PDF] regarding reporting requirements for providers of international telecommunications services. The FCC adopted this NPRM on May 12, 2011, and released the text on May 13, 2011. This item is FCC 11-76 in IB Docket No. 04-112. See, notice in the Federal Register, Vol. 76, No. 138, Tuesday, July 19, 2011, at Pages 42613-42625.

The House will meet in pro forma session at 1:00 PM.

The Senate will meet in pro forma session at 10:00 AM.

1:00 - 2:30 PM. The American Bar Association (ABA) will host a webcast panel discussion titled "Ownership of Digital Media and Electronic Privacy". The speakers will be Ben Kleinman (Manatt Phelps), Sharra Brockman (Verv), Eric Crusius (Centre Law Group), and Paul Roberts (Hogan Lovells). Prices vary. CLE credits. See, notice.

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