Bush Signs Class Action Reform Bill

2/18. The House approved S 5, the "Class Action Fairness Act of 2005", on Thursday, February 17, 2005. President Bush promptly signed the bill on Friday, February 18, 2005. See, White House release.

This bill would amend Title 28 of the U.S. Code by adding a new Chapter 114 pertaining to class actions, by adding a new Section 1332 that creates federal jurisdiction over certain class action litigation, and by adding a new Section 1453 regarding the removal of certain class actions to federal court.

A key provision of the bill creates jurisdiction in U.S. District Courts over class actions in which the aggregate amount in controversy exceeds $5 Million and any member of a plaintiff class is a citizen of a different state from any defendant.

See also, stories titled "Senate Approves Class Action Reform Bill" in TLJ Daily E-Mail Alert No. 1,075, February 11, 2005, and "Senate Judiciary Committee to Mark Up Class Action Fairness Act" in TLJ Daily E-Mail Alert No. 1,068, February 2, 2005.

President Bush stated at a White House event that "Overall, junk lawsuits have driven the total cost of America's tort system to more than $240 billion a year, greater than any other major industrialized nation. It creates a needless disadvantage for America's workers and businesses in a global economy, imposes unfair costs on job creators, and raises prices to consumers." See, transcript.

Rep. James Sensenbrenner (R-WI), the Chairman of the House Judiciary Committee, stated during House debate that "Today marks the culmination of nearly a decade of legislative efforts to end systematic abuse of our Nation's class action system. We stand on the cusp of sending landmark legislation on civil-justice reform to the President that has been approved by increasing majorities each time it has been considered by the House in each of the last three Congresses and which passed the other body last week with an overwhelming majority of 72 votes."

Rep. Sensenbrenner identified two problems with existing law. First, "A major element of the worsening crisis is the exponential increase in State class action cases in a handful of ``magnet´´ or ``magic´´ jurisdictions, many of which deal with national issues in classes. In the last 10 years, State court class actions filings nationwide have increased over 1,315 percent. The infamous handful of magnet courts known for certifying even the most speculative class action suits, the increase in filings now exceeds 5,000 percent. The only explanation for this phenomenon is aggressive forum shopping by trial lawyers to find courts and judges who will act as willing accomplices in a judicial power grab, hearing nationwide cases and setting policy for the entire country."

Second, he said that there are "outrageous settlements that benefit only lawyers and trample the rights of class members. Class actions were originally created to efficiently address a large number of similar claims by people suffering small harms. Today they are too often used to efficiently transfer the large fees to a small number of trial lawyers, with little benefit to the plaintiffs."

The just enacted bill is a Senate bill. However, in previous Congresses, the House approved class action reform bills sponsored by Rep. Bob Goodlatte (R-VA) and Rep. Rick Boucher (D-VA). See, for example, stories titled "House Passes Class Action Fairness Act" in TLJ Daily E-Mail Alert No. 680, June 13, 2003, and "Reps. Goodlatte and Boucher Re-Introduce Class Action Fairness Act" in TLJ Daily E-Mail Alert No. 619, March 10, 2003.

Rep. Goodlatte and Rep. Boucher are also two of the leading technophiles in the House. Both were present at the White House signing ceremony on February 18.

Rep. Boucher stated in the House that "The bill before us makes procedural changes only. There are no restrictions on the substantive rights of plaintiffs. There are no caps on damages. There is no elimination on the rights of plaintiffs to recover. The bill simply permits the removal to Federal courts of class actions that are truly national in scope, with plaintiffs living across the Nation and the large corporate defendant, even if the current diversity of citizenship rules are not strictly met."

People and Appointments

2/18. President Bush announced his intent to designate Peter Allgeier acting U.S. Trade Representative (USTR). He is currently the Deputy USTR. See, White House release.

2/18. President Bush nominated Michael Jackson to be Deputy Secretary of Homeland Security. If confirmed by the Senate, he would replace James Loy. See, White House release.

2/18. Paul Roye, Director of the Securities and Exchange Commission's (SEC) Division of Investment Management, will leave the SEC. See, SEC release.

2/18. Kevin Madden was named Deputy Director and Press Secretary in the Department of Justice's (DOJ) Office of Public Affairs. He worked for the Bush Cheney 2004 election campaign. See, DOJ release.

More News

2/18. The Bureau of Industry and Security (BIS), which regulates exports and other matters, published a notice in the Federal Register that describes and recites numerous changes to its Export Administration Regulations (EAR). These changes pertain to, among other things, certain integrated circuits and software. See, Federal Register, February 18, 2005, Vol. 70, No. 33, at Pages 8245 - 8251.

2/18. The Federal Communications Commission (FCC) released its Second Order on Reconsideration [26 pages in PDF] in its proceeding titled "In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991". The FCC adopted, but did not release, this item at its February 10, 2005 meeting. See also, the FCC February 10 release [PDF] that describes this item. This item is FCC 05-28 in CG Docket No. 02-278.

Class Action Lawyers Sue eBay Alleging Shill Bidding Scheme

2/17. A class action law firm filed a complaint [30 pages PDF scan] in Santa Clara County Superior Court against eBay alleging violation of California statutes and common law in connection with an alleged shill bidding scheme.

The class action law firm of Lerach Coughlin Stoia Geller Rudman & Robbins filed the complaint. The one named plaintiff is Glenn Block. The complaint seeks class action status.

The complaint states that "This action revolves around EBay's use of unlawful, unfair, fraudulent, and unconscionable ``shill´´ bidding which artificially inflates the bids of EBay buyers. Shill bidding is the practice of bidding on the seller's behalf, with no intention of purchasing the product, for the sole purpose of increasing the bid price of real bidders. This inflation occurs because eBay acts as a ``shill´´ or a ``puff´´ against the current high bidder to artificially inflate a winning bidder's offer when he accedes to eBay's request to increase his maximum bid. Alternatively, this inflation can be seen as an undisclosed fee imposed for the use of eBay's proxy bidding tool."

The complaint continues that eBay's "use of shill bidding serves at least three purposes: First, it creates an artificially inflated price for eBay's primary clients -- large sellers -- and is undertaken on their behalf. Second, as a result of these inflated prices, eBay receives larger transaction fees from these transactions. And third, as a result of these inflated prices, eBay obtains larger transaction fees from its financial subsidiary PayPal."

It further alleges that "eBay's scheme goes beyond the mere inflation of bids, however. eBay also acts as an auctioneer and auction house in California, without complying with the terms of Cal. Civ. Code §§ 1812.600, et seq. eBay's illegal behavior deprives plaintiff, and all those similarly situated, of the specific protections requires of auctioneers and auction house in California, including failing to maintain a bond with the California Secretary of State and failing to post and provide auction terms, among others."

The seven count complaint pleads only state law claims. It seeks injunctive relief for violation of the Auction Act (California Civil Code § 1812.602) and restitutionary relief for violation of the Auction Act (California Civil Code § 1812.603). It also alleges violation of the Auction Act (California Civil Code § 1812.600), violation of the Consumers Legal Remedies Act (California Civil Code § 1750, et seq.), violation of the Unfair Competition Law (California Business and Professions Code § 17200, et seq.), unjust enrichment and common law restitution, and a common law count for money had and received.

See also, Lerach release. This case is Glenn Block v. eBay, Inc., and Does 1-100, Superior Court for the State of California, Santa Clara County, Sup. Ct. No. 105 CV 035930.

Greenspan Testifies on Technology and Workforce Skills

2/17. Alan Greenspan, Chairman of the Federal Reserve Board (FRB), testified before the House Financial Services Committee on February 17, and before the Senate Banking Committee on February 16, 2005. See, prepared testimony. He also presented the FRB's Monetary Policy Report to the Congress [29 pages in PDF].

The FRB report states that "Spending on high-technology equipment increased 15½ percent last year after having risen 19 percent in 2003; these gains followed two years of declines. Although the pattern of spending was uneven over the four quarters of 2004, for the year as a whole, business outlays for computing equipment rose 25 percent in real terms, while spending on software and communications equipment posted increases of 13 percent and 10 percent respectively."

Greenspan discussed technology and workforce skills in his prepared testimony. He said that "Another critical long-run economic challenge facing the United States is the need to ensure that our workforce is equipped with the requisite skills to compete effectively in an environment of rapid technological progress and global competition. Technological advance is continually altering the shape, nature, and complexity of our economic processes. But technology and, more recently, competition from abroad have grown to a point at which demand for the least-skilled workers in the United States and other developed countries is diminishing, placing downward pressure on their wages. These workers will need to acquire the skills required to compete effectively for the new jobs that our economy will create."

He continued. "At the risk of some oversimplification, if the skill composition of our workforce meshed fully with the needs of our increasingly complex capital stock, wage-skill differentials would be stable, and percentage changes in wage rates would be the same for all job grades. But for the past twenty years, the supply of skilled, particularly highly skilled, workers has failed to keep up with a persistent rise in the demand for such skills. Conversely, the demand for lesser-skilled workers has declined, especially in response to growing international competition. The failure of our society to enhance the skills of a significant segment of our workforce has left a disproportionate share with lesser skills. The effect, of course, is to widen the wage gap between the skilled and the lesser skilled."

Greenspan commented that "In a democratic society, such a stark bifurcation of wealth and income trends among large segments of the population can fuel resentment and political polarization. These social developments can lead to political clashes and misguided economic policies that work to the detriment of the economy and society as a whole. As I have noted on previous occasions, strengthening elementary and secondary schooling in the United States -- especially in the core disciplines of math, science, and written and verbal communications -- is one crucial element in avoiding such outcomes. We need to reduce the relative excess of lesser-skilled workers and enhance the number of skilled workers by expediting the acquisition of skills by all students, both through formal education and on-the-job training."

CIIP Subcommittee Holds Hearing On Trademark Dilution Revision Act

2/17. The House Judiciary Committee's Subcommittee on Courts, the Internet and Intellectual Property (CIIP) held a hearing on HR 683, the "Trademark Dilution Revision Act of 2005".

Rep. Lamar Smith (R-TX), the Chairman of the CIIP Subcommittee, introduced this bill on February 9, 2005. It would amend the Trademark Act of 1946 with respect to dilution by blurring or tarnishment.

The Congress amended the Trademark Act in 1995 with the enactment of the Federal Trademark Dilution Act (FTDA). The FTDA bars uses of another's mark that blur or otherwise interfere with the ability of that mark to identify the source of goods. The FTDA is codified at 15 U.S.C. § 1125(c). It is also known as Section 43(c) of the Lanham Act.

The present bill responds to the Supreme Court's March 4, 2003 opinion [21 pages in PDF] in Moseley v. V Secret, a case involving whether the plaintiff in a lawsuit for violation of the FTDA must show actual economic loss. The Sixth Circuit held that economic harm may be inferred. The Supreme Court reversed. Its opinion is also reported at 537 U.S. 418.

The Supreme Court wrote that "The relevant text of the FTDA ... provides that ``the owner of a famous mark´´ is entitled to injunctive relief against another person's commercial use of a mark or trade name if that use ``causes dilution of the distinctive quality´´ of the famous mark. 15 U. S. C. §1125(c)(1) (emphasis added). This text unambiguously requires a showing of actual dilution, rather than a likelihood of dilution."

See also, story titled "Supreme Court Rules in Trademark Dilution Case" in TLJ Daily E-Mail Alert No. 618, March 6, 2003.

HR 683 would replace the current language of 15 U.S.C. § 1125(c).

Subsection (c)(1) currently provides that "The owner of a famous mark shall be entitled, subject to the principles of equity and upon such terms as the court deems reasonable, to an injunction against another person’s commercial use in commerce of a mark or trade name, if such use begins after the mark has become famous and causes dilution of the distinctive quality of the mark, and to obtain such other relief as is provided in this subsection." It then enumerates several factors that the court may consider in determining whether a mark is distinctive and famous.

Under HR 683, subsection (c)(1) would provide that "Subject to the principles of equity, the owner of a famous mark that is distinctive, inherently or through acquired distinctiveness, shall be entitled to an injunction against another person who, at any time after the owner's mark has become famous, commences use of a mark or trade name in commerce as a designation of source of the person's goods or services that is likely to cause dilution by blurring or dilution by tarnishment, regardless of the presence or absence of actual or likely confusion, of competition, or of actual economic injury."

The bill also provides that "a mark is famous if it is widely recognized by the general consuming public of the United States as a designation of source of the goods or services of the mark's owner. In determining whether a mark possesses the requisite degree of recognition, the court may consider all relevant factors, including the following:
  (i) The duration, extent, and geographic reach of advertising and publicity of the mark, whether advertised or publicized by the owner or third parties.
  (ii) The amount, volume, and geographic extent of sales of goods or services offered under the mark.
  (iii) The extent of actual recognition of the mark."

The bill also defines, and enumerates factors to be considered by the court regarding, dilution by blurring. It also defines dilution by tarnishment.

The bill also contains a list of exemptions. These only slightly modify the exemptions in the current statute. The bill provides that "The following shall not be actionable as dilution by blurring or dilution by tarnishment under this subsection:
  (A) Fair use of a famous mark by another person in comparative commercial advertising or promotion to identify the competing goods or services of the owner of the famous mark.
  (B) Noncommercial use of a designation of source.
  (C) All forms of news reporting and news commentary."

William Barber, an attorney with the law firm of Fulbright Jaworski, who testified on behalf of the American Intellectual Property Law Association (AIPLA), wrote in his prepared testimony [17 pages in PDF] that the FTDA "is in need of amendment".

He wrote that the bill would remedy the problem created by the Moseley case. That is "it would amend the statute to provide relief where the trademark owner can show a ``likelihood of dilution´´ of its famous mark, thus relieving trademark owners of the unreasonable burden -- in most cases virtually impossible to satisfy -- of proving ``actual dilution´´ as required by the Supreme Court's interpretation of the current statute in Moseley ..."

He wrote that the AIPLA "strongly supports H.R. 683, with two primary exceptions: first, the proposed restriction in Section 43(c)(1) to limit relief only to situations where a person uses the diluting mark ``as a designation of source of the person's goods or services´´ is both unnecessary and inappropriate, and should be omitted; and second, the definition and factors for determining ``dilution by blurring´´ in Section 43(c)(2)(B) should be modified to properly focus on impairment of consumers' association between the famous mark and a single source, as opposed to the mark's ``distinctiveness.´´"

Anne Gundelfinger, President of the International Trademark Association (INTA), and Associate General Counsel at Intel, wrote in her prepared testimony [PDF] that the INTA supports the bill. She wrote that it would "provide a narrower, clearer, and more focused statute that addresses the specific harm of dilution, while providing owners of famous marks a provable cause of action. At the same time, the legislation protects free speech."

Mark Lemley, a professor at Stanford University Law School, wrote in his prepared testimony [4 pages in PDF] that "H.R. 683 strikes the proper balance, limiting trademark dilution to truly famous marks and to truly diluting uses without setting an impossible burden of proof."

Marvin Johnson, of the ACLU, asserted that "If the proposed bill were to pass as is, the ability to criticize and parody trademarked information would be severely diminished." See, ACLU release and prepared testimony.

HR 683 would maintain the existing exemptions. These exempt "Fair use", "Noncommercial use" and "news reporting and news commentary".

Cato Releases Paper on DRM and P2P

2/17. The Cato Institute released a paper [PDF] titled "Peer-to-Peer Networking and Digital Rights Management: How Market Tools Can Solve Copyright Problems". See also, summary.

The authors are Michael Einhorn and Bill Rosenblatt. Einhorn is also the author of the recently published book titled Media, Technology, and Copyright: Integrating Law and Economics [Amazon]. Rosenblatt publishes a web site titled DRM Watch.

They argue in this paper that the basic functions of digital rights management (DRM) and peer to peer (P2P) technologies "can be quite complementary and that innovative market mechanisms that can help alleviate many copyright concerns are currently blossoming." They assert that "Property rights on P2P networks can be protected through DRM technologies that stop unauthorized reproduction and distribution."

Hence, they argue for a limited role for government. They state that "Government should protect the copyrights of content owners but simultaneously allow the free market to determine potential synergies, responses, and outcomes that tap different P2P and DRM business models. In particular, market operations are greatly preferable to government technology controls, on the one hand, or mandatory compulsory licensing schemes, on the other."

People and Appointments

2/17. Hewlett Packard announced that it appointed Russell Reynolds Associates to search for a new CEO to replace Carly Fiorina. HP further stated that Andrea Redmond and Charles Tribbett will lead the search team. See, HP release.

More News

2/17. Michael Gallagher, head of the National Telecommunications and Information Administration (NTIA), gave a speech to the Alliance for Telecommunications Industry Solutions (ATIS). See, presentation slides [PDF].

2/17. Gary Greenstein was named General Counsel of SoundExchange. He was previously VP of Business and Legal Affairs for the Recording Industry Association of America (RIAA). See, release [PDF].

House Subcommittee Marks Up Spyware Bill

2/16. The House Commerce Committee's Subcommittee on Trade, Commerce and Consumer Protection amended and approved HR 29, the "The Securely Protect Yourself Against Cyber Trespass Act" or "Spy Act". HR 29 prohibits certain conduct with respect to spyware, and gives the Federal Trade Commission (FTC) civil enforcement authority.

The Subcommittee adopted an amendment [6 pages in PDF] offered by Rep. Clifford Stearns (R-FL), the Chairman of the Subcommittee, that contains about 30 changes to the bill as introduced. Most changes are minor or technical corrections. It then approved the bill as amended.

One significant change pertains to cookies. Rep. Mary Bono (R-CA), the sponsor of the bill, stated that "This amendment clarifies, through a rule of construction, that this bill does not apply to cookies, including third party cookies. This change demonstrates the collaboration and ongoing efforts between Member's staff, Committee staff and industry to come up with provisions that are sensitive to legitimate business models."

The bill as introduced [PDF] provided an exception to the bill's definition of "computer software" for cookies. It provided that "Such term does not include -- (i) a cookie or other text or data file that is placed on the computer system of a user by an Internet service provider, interactive computer service, or Internet website to return information to such provider, service, or website; or (ii) computer software that is placed on the computer system of a user by an Internet service provider, interactive computer service, or Internet website solely to enable the user subsequently to use such provider or service or to access such website."

The amendment approved on February 16 replaces this language with the following: "Such term does not include computer software that is placed on the computer system of a user by an Internet service provider, interactive computer service, or Internet Web site solely to enable the user subsequently to use such provider or service or to access such Web site."

The amendment also provides the following rule of construction: "This paragraph may not be construed to include, as computer software, a cookie or any other type of text or data file that solely may be read or transferred by a computer."

Rep. Bono added that "This amendment also expands the scope of this bill to prohibit home page hijacking and makes clear that embedded ads are not subject to the identity function."

HR 29 (109th Congress), as introduced, was substantially identical to HR 2929 (108th Congress), which was also titled the SPY ACT. The House approved that bill by a vote of 399-1 on October 5, 2004. See, Roll Call No. 495. See also, story titled "House Passes First Spyware Bill" and story titled "Summary of House Commerce Committee Spyware Bill" in TLJ Daily E-Mail Alert No. 991, October 6, 2004.

The House Commerce Committee held a hearing last month on this subject. See, story titled "House Commerce Committee Holds Hearing on Spyware Bill" in TLJ Daily E-Mail Alert No. 1,064, January 27, 2005.

House Science Committee Holds Hearing on R&D Funding

2/16. The House Science Committee held a hearing titled "An Overview of the Federal R&D Budget for Fiscal Year 2006".

Rep. Sherwood Boehlert (R-NY), the Chairman of the Committee, wrote in his prepared statement [PDF] that "The budget proposal before us raises serious questions about our nation’s direction in the coming years."

He said that "The budget is a glass half full in that R&D as a whole has fared better, and basic research has fared no worse, than non-defense domestic discretionary spending as a whole. In other words, it would be unfair to describe the attitude behind this budget as in any way ``anti-science.´´ We are living through a period of stringent austerity, and the science budget reflects that rather than any hostility toward science."

He added that "But this budget is also a glass half empty. Key science agencies, most notably perhaps DOE’s Office of Science, would see their budgets cut. NSF education programs would be cut by 12 percent -- about as misguided a policy as one could imagine. I should say Congress tried going down this foolhardy path with regard to NSF in the early 1980s and quickly reversed course."

Arden Bement, the Director of the National Science Foundation (NSF), presented the case for research and development funding in his prepared testimony [PDF]. He wrote that "For many years, the United States economy has depended heavily on investments in research and development -- and with good reason. America’s sustained economic prosperity is based on technological innovation made possible, in large part, by fundamental science and engineering research. Innovation and technology are the engines of the American economy, and advances in science and engineering provide the fuel."

He elaborated that "Investments in science and technology -- both public and private -- have driven economic growth and improved the quality of life in America for the last 200 years. They have generated new knowledge and new industries, created new jobs, ensured economic and national security, reduced pollution and increased energy efficiency, provided better and safer transportation, improved medical care, and increased living standards for the American people. Innovation and technology have become the engines of the American economy, and advances in science and engineering provide the fuel."

He also addressed funding of his agency. "In light of the tight fiscal climate, NSF fared relatively well. For the coming fiscal year, NSF requests $5.6 billion, an increase of $132 million, or 2.4 %, over last year’s appropriated levels.

John Marburger, Director of the White House Office of Science and Technology Policy, wrote in his prepared testimony [PDF] that despite budgetary pressures, "Federal R&D funds will increase in the President’s fiscal year (FY) 2006 budget. The Budget maintains a strong focus on winning the war against terrorism, while moderating the growth in overall spending, and this focus is reflected in the proposed R&D investments. The Administration has also maintained high levels of support for priority areas such as nanotechnology, information technology, the hydrogen initiative, and space exploration."

Marburger (at right) also focused on the President's budget proposals regarding nanotechnology and information technology. He wrote that "NSF leads two Administration priority research areas that promise to strengthen the nation’s economy: the National Nanotechnology Initiative (NNI) and the Networking and Information Technology R&D program (NITRD). NSF-funded nanotechnology research, proposed at $344 million in FY 2006, a 1.6 percent increase over 2005 and 129 percent since 2001, has advanced our understanding of materials at the molecular level and has provided insights into how innovative mechanisms and tools can be built atom by atom. This emerging field holds promise for a broad range of developing technologies, including higher-performance materials, more efficient manufacturing processes, higher-capacity computer storage, and microscopic biomedical instruments and mechanisms. NSF’s investments in NITRD, funded at $803 million in 2006, a one-percent increase over 2005 and 26 percent since 2001, support all major areas of basic information technology (IT) research."

He added that the "NSF also incorporates IT advances into its scientific and engineering applications, supports using computing and networking infrastructure for research, and contributes to IT-related education for scientists, engineers, and the IT workforce. Growing concerns about the vulnerability of computers, networks and information systems have prompted increased NSF investments in cyber security research, education and training. The FY 2006 Budget provides $94 million for these activities."

Theodore Kassinger, Deputy Secretary of Commerce, wrote in his prepared testimony [13 pages in PDF] about Department of Commerce R&D. He discussed, among other projects, the National Institute of Standards and Technology's (NIST) research regarding interoperability and security, and quantum computing.

See also, prepared testimony [70 pages in PDF] of Charles McQueary, the Undersecretary for Science and Technology at the Department of Homeland Security. He addressed cyber security at pages 34-35. And see, prepared testimony [PDF] of Samuel Bodman, the Secretary of Energy.

University and Industry Representatives Urge More R&D Funding

2/16. A group of industry and research university representatives named the "Task Force on the Future of Innovation" held a news conference in Washington DC to advocate more federal government spending on research and development.

They also released a report [PDF] titled "The Knowledge Economy: Is the United States Losing Its Competitive Edge?" This report is also subtitled "Benchmarks of Our Innovation Future".

This report provides data on numbers of graduate students in science and engineering, publication of scientific articles, and patent applications. The report concludes from this data that "the United States can no longer take its supremacy for granted. Nations from Europe to Eastern Asia are on a fast track to pass the United States in scientific excellence and technological innovation."

See, full story.

House Approves Broadcast Decency Enforcement Act

2/16. The House approved HR 310, the "Broadcast Decency Enforcement Act of 2005", by a vote of 389-38. See, Roll Call No. 35. This bill would, among other things, raise the minimum fine from $32,500 to $500,000 per violation.

The House approved by voice vote an amendment [PDF] in the nature of a substitute offered by Rep. Fred Upton (R-MI) and Rep. Ed Markey (D-MA), sponsors of the bill. The House then approved the bill as amended, on the roll call vote.

Rep. Upton stated that "There must be a level of expectation when a parent turns on the TV or radio between the family hours that the content will be suitable for children.  A parent should not have to think twice about the content on the public airwaves.  Unfortunately, that situation is far from reality. With passage of this legislation, I am confident that broadcasters will think twice about pushing the envelope. And our kids will be better off for it. I am pleased with the passage of this bill in the House today, not only as the bill's author, but more importantly as a parent." See, release.

The final vote was overwhelmingly in favor of the bill. Perhaps it should be noted that some of the Silicon Valley area Representatives did not support this bill. Rep. Zoe Lofgren (D-CA) voted no. Rep. Mike Honda (D-CA) voted no. Rep. Anna Eshoo (D-CA) did not cast a vote.

See also, stories titled "House Commerce Committee Approves Bill to Increase Broadcast Indecency Fines" in TLJ Daily E-Mail Alert No. 1,074, Feb. 10, 2005, and "House to Take Up Broadcast Decency Enforcement Act" in TLJ Daily E-Mail Alert No. 1078, February 16, 2005.

Deputy USTR Discusses Doha, Trade in Services, and Immigration

2/16. Peter Allgeier, the Deputy U.S. Trade Representative (USTR), held a news conference at which he discussed the Doha Development Agenda. One of the issues that he discussed was immigration of persons involved in delivering services, particularly in the technology sector. This issue is also referred to as "Mode 4". See, transcript.

He began that Mode 4 is "the movement of natural persons as a way of delivering services, in other words they actually go to the country to deliver the service." He said that "this is a difficult issue for us. And I think it is difficult for a lot of other countries too, because it has a bearing on immigration and that is a sensitive issue, as to how it is handled."

Allgeier said that "We are actually a very open country, in terms of people coming to work in our economy and to get the necessary visas to work in our economy, and if you look at any high tech area in our country, you’ll see that there are many, many people, many professionals from overseas, who are working there. But there are sensitivities, and frankly the sensitivities have increased as a result of the security situation. On the other hand, I mean, we do hear how important this is to many, many countries, and so this is one of the areas that we have a lot of work to do back in our capital to find the right response on this issue."

He also said that "there are other ways to deliver a service. And with Mode 4, for a developing country what it means is some of the brightest people in their economy are leaving their economy and going to make their fortune in another country. Understandable, but from the country's stand point, they're losing an awful lot of talent, and more and more, there are ways to deliver a lot of these services in a cross border way. I mean if you think about, for example, an architect. An architect can do a lot more across the Internet than was possible ten years ago. So I think it is important for countries to also look down the road, five years from now, ten years from now, what other modes of delivery could be important and effective for them."

People and Appointments

2/16. Sen. Arlen Specter (R-PA), the Chairman of the Senate Judiciary Committee, announced in a release that he "has been diagnosed with Hodgkin's disease" This release further states that he "is expected to receive ABVD chemotherapy every two weeks over the next 24 to 32 weeks". It also states that "It is expected that Senator Specter will be able to perform all duties of his office including those related to the chairmanship of the Judiciary Committee."

2/16. John Wood was named Chief of Staff of the Department of Homeland Security (DHS). Before this, he was Counselor to the Attorney General in the Department of Justice (DOJ), where he handled the DOJ's Civil, Civil Rights, Antitrust, Tax, and Environment Divisions and the DOJ's civil terrorism litigation. Before that, he was Deputy General Counsel for the Office of Management and Budget (OMB). Before joining the Bush administration he was an attorney at the law firm of Kirkland and Ellis.

2/16. Brian Besanceney was named Assistant Secretary for Public Affairs at the Department of Homeland Security (DHS). He previously worked in communications at the White House. Before that, he worked as communications director for Rep. Rob Portman (R-OH).

2/16. Jennifer Manner (at left), Senior Counsel to Federal Communications Commission (FCC) Commissioner Kathleen Abernathy, will leave the FCC. She will become VP, Regulatory Affairs, at Mobile Satellite Ventures (MSV). John Branscome, who is currently Legal Advisor to the Chief of the FCC's Wireless Telecommunications Bureau, will be Abernathy's acting legal advisor for wireless, international, and technology issues. See, Abernathy release [PDF] and MSV release.

2/16. The Senate Foreign Relations Committee approved the nomination of Robert Zoellick to be Deputy Secretary of State.

2/16. Bruce Forrest was named Interim Chief Copyright Royalty Judge, effective February 7, 2005. The Copyright Office (CO) stated that he "will serve until the Librarian of Congress appoints three Copyright Royalty Judges (CRJs) who initially will serve two- to six-year terms, which are expected to commence on or after May 31st, the effective date of the Copyright Royalty and Distribution Reform Act of 2004." Forrest previously worked in the Department of Justice's (DOJ) Civil Division, where he represented the Copyright Royalty Tribunal (CRT) and the Librarian of Congress. See, CO release.

More News

2/16. The Senate Judiciary Committee's Subcommittee on the Constitution, Civil Rights, and Property Rights cancelled its hearing titled "Obscenity Prosecution and the Constitution", which had been scheduled for Wednesday afternoon, February 16.

2/16. The Federal Communications Commission (FCC) released its Notice of Proposed Rulemaking and Memorandum Opinion and Order [41 pages in PDF] in its proceeding titled "In the Matter of Amendment of Part 90 of the Commission’s Rules to Provide for Flexible Use of the 896-901 MHz and 935-940 MHz Bands Allotted to the Business and Industrial Land Transportation Pool. Oppositions and Petitions for Reconsideration of 900 MHz Band Freeze Notice". This item is FCC 05-31 in WT Docket No. 05-62. Initial public comments on the NPRM portion of this item will be due 30 days after publication of a notice in the Federal Register. Reply comments will be due 45 days after publication. The FCC has not yet published this notice. See also, the FCC's February 10 release [PDF] that describes this item.

2/16. Securities and Exchange Commission (SEC) Chairman William Donaldson gave a speech in Washington DC at the Mutual Fund Directors Forum. He stated that "We also need to examine ways that we can make better use of technology, including the Internet, in our disclosure regime. In this regard, nothing will be off the table -- and we welcome your input and ideas."

Go to News from February 11-15, 2005.