DOJ Requires AMC and Loews to Divest Theaters in Five Markets

12/20. The Department of Justice's (DOJ) Antitrust Division filed a civil complaint in U.S. District Court (SDNY) against Marquee Holdings, Inc. and LCE Holdings, Inc., which are holding companies that own AMC Entertainment Inc. and Loews Cineplex Entertainment Corporation, respectively.

The complaint alleges that the proposed merger of Marquee and LCE violates Section 7 of the Clayton Act, which is codified at 15 U.S.C. § 18, by substantially lessening competition, and tending to create a monopoly in the theatrical exhibition of commercial, first-run movies in parts of Boston, Chicago, Dallas, New York, and Seattle.

The DOJ and the defendants simultaneously filed a joint proposed Final Judgment, under which the merged entity is required to divest certain theater properties in the five markets at issue.

See also, DOJ release, proposed Hold Separate Stipulation and Order, and Competitive Impact Statement.

This case is USA, Illinois, New York and Massachusetts v. Marquee Holdings, Inc. and LCE Holdings, Inc., U.S. District Court for the Southern District of New York, D.C. No. 05 CV 10722, Judge Kimba Wood presiding.

People and Appointments

12/20. Jeffrey Schmidt was named Director of the Federal Trade Commission's (FTC) Bureau of Competition. He will replace Susan Creighton, who will leave the FTC. Schmidt has been the Deputy Bureau Director since February of 2005. He previously worked for the law firm of Pillsbury Winthrop Shaw Pittman. Creighton went to work at the FTC as Deputy Bureau Director in August of 2001. She was named Director in July of 2003. See, FTC release.

12/20. President Bush released a document titled "Memorandum for the Director of National Intelligence" regarding "Designation of Officers of the Office of the Director of National Intelligence To Act as Director of National Intelligence". It pertains to the order of succession at the Office of the Director of National Intelligence in the event that the DNI (currently John Negroponte) and the Principal Deputy DNI (currently General Michael Hayden) die, resign, or become unable to perform their duties.

12/20. Patrick Ross was named Senior Fellow at the Progress and Freedom Foundation (PFF). He has been the PFF's VP-Communications & External Affairs for over one year. He will retain that title. Before joining the PFF, he worked for Warren Communications News, which publishes Communications Daily and Washington Internet Daily. Ross writes about technology related issues. See, for example, December paper titled "Content Regulation Without Frontiers: Why the EU is Indeed Regulating the Internet"; November 16 paper titled "Video Satellite Regulation in an On-Demand World"; and October 6 opinion piece in CNET titled "Here's a surefire way to stifle innovation".

More News

12/20. The Department of Justice (DOJ) issued a release that asserts the conference report on HR 3199, the "USA PATRIOT Improvement and Reauthorization Act of 2005", contains "more than 30 new significant civil liberties safeguards". The House, but not the Senate, has approved this conference report. See, text of conference report [PDF].

12/20. Rep. Joe Barton (R-TX), the Chairman of the House Commerce Committee (HCC), and Rep. Charles Bass (R-NH), a member of the HCC, wrote a letter to Federal Trade Commission (FTC) Chairman Deborah Majoras in which they requested that the FTC "look into how gift cards are marketed, sold, and used, and to report back on its findings in a letter to the Committee by February 17, 2006."

Bush, Gonzales & Hayden Discuss Presidential Intercepts and PATRIOT Act

12/19. President Bush held a news conference at the White House at which he again discussed and promoted the National Security Agency's (NSA) communications intercept program, that is authorized by President Bush rather than any court. The program was first publicly reported in the Friday, December 16, issue of the New York Times. See, transcript.

Attorney General Alberto Gonzales and General Michael Hayden also held held a separate news conference on December 19. See, transcript. Hayden has been an Air Force officer since 1967, and is now the highest ranking military intelligence officer in the U.S. armed forces. He is the Principal Deputy Director for National Intelligence.

Bush called the leak of the existence of the program  a "shameful act" that harms national security. Gonzales said that the program had been the government's "most classified" program. All remained secretive about the exact nature of the program. General Hayden said that "what we are talking about here are communications we have every reason to believe are al Qaeda communications, one end of which is in the United States".

General Hayden added that "This program has been successful in detecting and preventing attacks inside the United States."

The three explained that the reason for relying upon Presidential authority, rather than seeking approval from the court established by the Foreign Intelligence Surveillance Act (FISA), is that the FISA procedure does not proceed quickly enough to enable intercepts of certain terrorist communications that are conducted with new technologies and tactics.

General Hayden added that "I can say unequivocally, all right, that we have got information through this program that would not otherwise have been available."

See, full story.

Reaction to NSA Intercepts

12/19. Several persons commented on the news conferences of President Bush and Attorney General Alberto Gonzales on Monday, December 19, as well as the New York Times story of December 16.

Sen. Patrick Leahy (D-VT) stated in a release that "The White House's domestic surveillance program also raises legitimate concerns about accountability. A wiretap that short-circuits our laws and safeguards is no more effective than a legal wiretap. It will not get you better intelligence and it will not make us any safer as a nation. It only excuses the government from having to justify its conduct through constitutional checks and balances."

He added that "Our government must follow the laws and respect the Constitution while it protects Americans’ security and liberty.  No Administration should believe it is above the law. We need to restore checks and balances in this country to protect us all and all that we hold dear."

Sen. Arlen Specter (R-PA), did not directly challenge the President or Attorney General. However, he wrote a letter to Judge Sam Alito in which he stated that he will ask Alito questions about this matter at his January 2006 confirmation.

For example, he said that he would ask this question. "The President has also asserted that his power to issue the order derives from his inherent executive authority as Commander in Chief. Under what jurisprudential theory would you determine the extent of this power?"

He said that he would also ask, "what jurisprudential theory would you invoke to evaluate the limits on the President's authority to conduct surveillance on U.S. Citizens without going through the court system?"

The ACLU challenged AG Gonzales' legal justification for the NSA program. The ACLU's Caroline Fredrickson, stated in a release that "Eavesdropping on conversations of U.S citizens and others in the United States without a court order and without complying with the procedures of the Foreign Intelligence Surveillance Act is both illegal and unconstitutional. The administration is claiming extraordinary presidential powers at the expense of civil liberties and is putting the president above the law. Congress must investigate this report thoroughly. We also call upon Attorney General Alberto Gonzales to appoint a special prosecutor to independently investigate whether crimes have been committed."

She added that "The Patriot Act already provides law enforcement a wide array of surveillance powers and it vastly expands the Foreign Intelligence Surveillance Act. These disclosures show that the kinds of safeguards many members of Congress are trying to build into the Patriot Act are urgently needed."

The Center for Democracy and Technology (CDT) published at the top of the home page of its web site the following quotes from former Sen. Frank Church (D-ID) from 1975:

"If this government ever became a tyranny, if a dictator ever took charge in this country, the technological capacity that the intelligence community has given the government could enable it to impose total tyranny, and there would be no way to fight back, because the most careful effort to combine together in resistance to the government, no matter how privately it was done, is within the reach of the government to know."

"I don't want to see this country ever go across the bridge. I know the capacity that is there to make tyranny total in America, and we must see to it that this agency [NSA] and all agencies that possess this technology operate within the law and under proper supervision, so that we never cross over that abyss. That is the abyss from which there is no return."

Sen. Church chaired the Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities, which is often referred to as the Church Committee. Its investigations were followed by Congressional legislation, and executive orders of then President Jimmy Carter, curtailing the activities of intelligence agencies. Sen. Church, like President Carter, lost his next election.

People and Appointments

12/19. President Bush announced his intent to nominate James Finley to be Deputy Under Secretary of Defense for Acquisition and Technology. He is currently a consultant. Before that, he was P/CEO of Smartskin, Inc. He has also worked for General Electric, Singer, Lear Siegler, United Technologies and General Dynamics. See, White House release.

12/19. Laurie Knight will join the National Association of Broadcasters (NAB) as SVP of Government Relations. She was previously Director of Government Affairs at the National Beer Wholesalers Association. See, NAB release.

More News

12/19. The Securities and Exchange Commission (SEC) announced in a release that Chairman Chris Cox "met today with representatives of the accounting and financial reporting software industry to express support for integrating interactive data capabilities into existing accounting and financial reporting software."

12/19. Michael Gallagher, head of the National Telecommunications and Information Administration (NTIA), gave a speech in Washington DC titled "The United States and Europe: Engines for World Growth". See, presentation slides [10 pages in PDF].

12/19. The U.S. Attorneys Office for the Central District of California charged Jason Jones, Jonathan Bryant, and Pei "Patrick" Caico by criminal information with conspiracy to commit copyright infringement and violation of the anti-circumvention provisions of the Digital Millennium Copyright Act (DMCA) in connection with the modification and sale of Microsoft Xbox game consoles that allowed the machines to play pirated video games copied onto a hard drive installed in the console. Jones and Byrant are co-owners of ACME Game Store in Los Angeles, California. See, USAO release.

Cloture Motion on PATRIOT Act Extension Bill Defeated in Senate

12/17. The Senate rejected a motion to invoke cloture on the conference report on HR 3199, the "USA PATRIOT Improvement and Reauthorization Act of 2005", by a vote of 52-47, on Friday, December 16, 2005.

Invoking cloture is the only method for terminating a filibuster. Pursuant to Senate Rule XXII, a cloture motion requires a three fifths majority for passage. See, Senate memorandum titled "Filibusters and Cloture in the Senate"

It was an almost straight party line vote. Republicans voted 50-4. Democrats voted 2-44. See, Roll Call No. 358.

The Republicans who voted against the motion were Sen. Larry Craig (R-ID), Sen. John Sununu (R-NH), Sen. Lisa Murkowski (R-AK), and Sen. Bill Frist (R-TN). However, Sen. Frist, the Senate Majority Leader, favored approval of the motion, but switched his vote to no at the last moment, to preserve his ability to bring a motion to reconsider.

The Democrats who voted for the motion were Sen. Tim Johnson (SD) and Sen. Ben Nelson (D-NE). Sen. Chris Dodd (D-CT) did not vote. TLJ categorizes Sen. Jim Jeffords (VT) as a Democrat.

The House approved the conference report on December 14, 2005, by a vote of 251-174. See, story "House Approves Conference Report on PATRIOT Act Extension Bill" in TLJ Daily E-Mail Alert No. 1,273, December 15, 2005. See, full story.

President Bush Discloses Interception of Communications Without Court Approval

12/17. President Bush used his regular Saturday radio address on December 17, 2005, to discuss the PATRIOT Act, electronic surveillance, and extension of the PATRIOT Act.

He disclosed, in vague terms, that since shortly after the terrorist attacks of September 11, 2001, the National Security Agency (NSA) has been intercepting international communications involving persons linked to terrorism, pursuant to President Bush's authority. He did not state that these intercepts have been pursuant to orders issued by the court established by the Foreign Intelligence Surveillance Act (FISA). See, Title 50, Chapter 36, of the U.S. Code.

Bush stated that he authorized the NSA to "intercept the international communications of people with known links to al Qaeda and related terrorist organizations".

Bush referenced the "constitutional authority vested in me as Commander-in-Chief", and his authority under the "Joint Authorization for Use of Military Force". See, text.

Bush did not expressly state state the intercepts have included communications of persons in the United States. However, media reports have asserted this.

President Bush said that "Yesterday the existence of this secret program was revealed in media reports".

The New York Times published a story by James Risen and Eric Lichtblau titled "Bush Lets U.S. Spy on Callers Without Courts" on December 16, 2005. It states that "President Bush secretly authorized the National Security Agency to eavesdrop on Americans and others inside the United States to search for evidence of terrorist activity without the court-approved warrants ordinarily required for domestic spying, according to government officials."

Also on December 14, MSNBC published a story by Lisa Myers, Douglas Pasternak, and Rich Gardella titled "Is the Pentagon spying on Americans? Secret database obtained by NBC News tracks ‘suspicious’ domestic groups". The story states that "A secret 400-page Defense Department document obtained by NBC News" demonstrates that "the U.S. military has stepped up intelligence collection inside this country since 9/11, which now includes the monitoring of peaceful anti-war and counter-military recruitment groups."

Sen. Patrick Leahy (D-VT), the ranking Democrat on the Senate Judiciary Committee, spoke in the Senate on December 16 regarding the New York Times story. See, statement.

Sen. Leahy (at right) said that "the threat to civil liberties is also very real in America today". He continued that "Today’s New York Times reports that over the past three years, under a secret order signed by President Bush, the government has been monitoring the international telephone calls and international e-mail messages of people inside the United States, without court approval. This warrant-less eavesdropping program is not authorized by the PATRIOT Act or by any act of Congress. According to the reports, it is being conducted under a secret presidential order, based on classified legal opinions by the same Justice Department lawyers who argued that the President could order the use of torture."

Bush remained firm. He disclosed the existence of the intercept program, asserted its legality and necessity, and stated that it will continue.

He explained that "In the weeks following the terrorist attacks on our nation, I authorized the National Security Agency, consistent with U.S. law and the Constitution, to intercept the international communications of people with known links to al Qaeda and related terrorist organizations. Before we intercept these communications, the government must have information that establishes a clear link to these terrorist networks."

He continued that "This is a highly classified program that is crucial to our national security. Its purpose is to detect and prevent terrorist attacks against the United States, our friends and allies. Yesterday the existence of this secret program was revealed in media reports, after being improperly provided to news organizations. As a result, our enemies have learned information they should not have, and the unauthorized disclosure of this effort damages our national security and puts our citizens at risk. Revealing classified information is illegal, alerts our enemies, and endangers our country."

"As the 9/11 Commission pointed out, it was clear that terrorists inside the United States were communicating with terrorists abroad before the September the 11th attacks, and the commission criticized our nation's inability to uncover links between terrorists here at home and terrorists abroad. Two of the terrorist hijackers who flew a jet into the Pentagon, Nawaf al Hamzi and Khalid al Mihdhar, communicated while they were in the United States to other members of al Qaeda who were overseas. But we didn't know they were here, until it was too late."

Bush said that "The authorization I gave the National Security Agency after September the 11th helped address that problem in a way that is fully consistent with my constitutional responsibilities and authorities. The activities I have authorized make it more likely that killers like these 9/11 hijackers will be identified and located in time. And the activities conducted under this authorization have helped detect and prevent possible terrorist attacks in the United States and abroad."

He added that "I have reauthorized this program more than 30 times since the September the 11th attacks, and I intend to do so for as long as our nation faces a continuing threat from al Qaeda and related groups." He also said that "Leaders in Congress have been briefed more than a dozen times on this authorization and the activities conducted under it."

He concluded that "This authorization is a vital tool in our war against the terrorists. It is critical to saving American lives. The American people expect me to do everything in my power under our laws and Constitution to protect them and their civil liberties. And that is exactly what I will continue to do, so long as I'm the President of the United States."

President Bush did not expressly state that he had not sought approval of the FISA court.

President also delivered a speech from the Oval Office at the White House on Sunday night, December 18, 2005. He spoke solely about events in Iraq, and his policy with respect to Iraq and terrorism. He did not address extension of the PATRIOT Act or electronic surveillance. Also, Vice President Dick Cheney traveled to Iraq, and gave a speech to troops on December 18. The trip was not announced in advance. He too discussed Iraq and terrorism, but not the PATRIOT Act.

Jerry Berman, President of the Center for Democracy and Technology (CDT), a Washington DC based interest group that focuses on policy related to information technologies, stated in a release that "This secret NSA surveillance program violates civil liberties and is clearly illegal under FISA. The whole purpose of FISA was to end electronic surveillance authorized by Presidents under claims of inherent presidential power. The lesson of Watergate was that Presidents should not have inherent power to spy on Americans."

Berman added that "FISA was enacted with the Executive Branch understanding that judges would approve electronic eavesdropping in the United States, particularly by NSA, with its technological capability of being a vacuum cleaner of electronic communications. If the President could go around FISA, the statute would have been a futile exercise."

50 U.S.C. § 1811 provides that "Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for a period not to exceed fifteen calendar days following a declaration of war by the Congress."

50 U.S.C. § 1802 provides, in part, that "the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for periods of up to one year if the Attorney General certifies in writing under oath that -- (A) the electronic surveillance is solely directed at -- (i) the acquisition of the contents of communications transmitted by means of communications used exclusively between or among foreign powers ..."

50 U.S.C. § 1801 then defines "foreign powers" very broadly. It not only includes "a foreign government", but also includes, among other things, "a group engaged in international terrorism or activities in preparation therefor" and "a foreign-based political organization, not substantially composed of United States persons".

People and Appointments

12/17. The full Senate confirmed William Kovacic to be a Commissioner of the Federal Trade Commission (FTC). See, Senate Commerce Committee release and Congressional Record, December 17, 2005, at page S13965.

12/17. The full Senate confirmed Thomas Rosch to be a Commissioner of the Federal Trade Commission (FTC). See, Senate Commerce Committee release and Congressional Record, December 17, 2005, at page S13965.

12/17. The Senate confirmed Dale Meyerrose to be Chief Information Officer at the Office of the Director of National Intelligence. See, Congressional Record, December 17, 2005, at page S13965.

12/17. The Senate Finance Committee approved the nomination of Antonio Fratto to be Assistant Secretary of the Treasury for Public Affairs on December 16. The full Senate confirmed the nomination on December 17. See, Congressional Record, December 17, 2005, at page S13965..

12/17. The Senate Finance Committee approved the nomination of David Spooner to be Assistant Secretary of Commerce for Import Administration on December 16. The full Senate confirmed the nomination on December 17. See, Congressional Record, December 17, 2005, at page S13965..

12/17. The Senate Finance Committee approved the nomination of David Bohigian to be Assistant Secretary of Commerce, Market Access and Compliance on December 16. The full Senate confirmed the nomination on December 17. See, Congressional Record, December 17, 2005, at page S13965.

12/17. The Senate Finance Committee approved the nomination of Richard Crowder to be Chief Agricultural Negotiator at the Office of the U.S. Trade Representative (USTR) on December 16. The full Senate confirmed the nomination on December 17. See, Congressional Record, December 17, 2005, at page S13965.

California Superior Court Rules in Cebridge v. Nevada County

12/16. The Superior Court in California issued its opinion [32 page PDF scan] in Cebridge v. Nevada County, a municipal broadband dispute.

The Local Agency Formation Commission of Nevada County approved an application of the Truckee Donner Public Utility District to provide broadband services to citizens within its jurisdiction.

Cebridge Connections, a private sector provider of cable television and internet access services, filed a complaint in the Superior Court for Nevada County, which is a trial court in the state of California, against the Local Agency Formation Commission of Nevada County, seeking to invalidate the approval. Cebridge argued that, under the California Public Utility Code, a California public utility district may not provide broadband services.

The Superior Court held that it may. It also rejected all other arguments of Cebridge, and denied its request to invalidate the approval.

This case is Cequel III Communications I, LLC, dba Cebridge Connections v. Local Agency Formation Commission of Nevada County, Superior Court of the State of California in and for Nevada County, Case No. 70226, Judge Albert Dover presiding.

Sensenbrenner and Conyers Introduce Analog Content Protection Bill

12/16. Rep. James Sensenbrenner (R-WI) and Rep. John Conyers (D-MI) introduced HR 4569 [35 pages in PDF], the "The Digital Transition Content Security Act of 2005". This bill would regulate audio and video products and devices in a manner that may have the effect of preventing copyrighted analog format content from being converted into digital format, and then copied and distributed in violation of copyright law.

The bill would require, among other things, that certain video products and devices incorporate Copy Generation Management System for Analog (CGMS-A) and Video Encoded Invisible Light (VEIL) technologies.

Rep. Sensenbrenner is the Chairman of the House Judiciary Committee (HJC). Rep. Conyers is the ranking Democrat on the HJC.

Rep. Sensenbrenner (at right) stated in a release [PDF] that "This legislation is designed to secure analog content from theft that has been made easier as a result of the transition to digital technologies. Although many of those who convert analog content into digital form are not engaging in any illegal conduct, there are a good number of criminals who take advantage of existing weaknesses in legislation and technology to obtain copyrighted content and then redistribute for profit at the copyright owner’s expense. This practice is nothing short of theft."

Rep. Conyers stated in the same release that "it is important that we protect the content community from unfettered piracy. One aspect of that fight is making sure that digital media do not lose their content protection simply because of lapses in technology. This bill will help ensure that technology keeps pace with content delivery."

This bill contains several prohibitions in its § 101.

First, it provides in § 101(1), subject to exceptions, that no person shall "manufacture, import, offer to the public, provide or otherwise traffic in any --- (A) analog video input device that converts into digital form an analog video signal that is received in a covered format, or an analog video signal in a covered format that is read from a prerecorded medium, unless any portions of that device that are designed to access, record, or pass the content of the analog video signal within that device --- (i) detect and respond to the rights signaling system with respect to a particular work by conforming the copying and redistributing of that work to the information contained in the rights signaling system for that work in accordance with the compliance rules set forth in section 201 and the robustness rules referred to in section 202; and (ii) pass through or properly reinsert and update the CGMS-A portion of the rights signaling system or coding and data pertaining to CGMS-A, and pass through the VEIL portion of the rights signaling system, in accordance with such compliance rules and robustness rules".

Second, it provides, subject to exceptions, that no person shall "manufacture, import, offer to the public, provide or otherwise traffic in any --- (B) analog video input device that does not convert into digital form an analog video signal that is received by that device in a covered format, or an analog video signal in a covered format that is read from a prerecorded medium, unless that device --- (i) preserves, passes through, or properly reinserts the CGMS-A portion of the rights signaling system or coding and data pertaining to CGMS-A, and passes through the VEIL portion of the rights signaling system, in accordance with the compliance rules set forth in section 201 and the robustness rules referred to in section 202; (ii) outputs the analog video signal in a covered format".

Third, it provides in § 101(2), subject to exceptions, that no person shall "manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that --- (A) is primarily designed or produced for the purpose of modifying or causing an analog video input device to no longer conform to the requirements set forth in paragraph (1); (B) has only limited commercially significant purpose or use other than to modify or cause an analog video input device to no longer conform to the requirements set forth in paragraph (1); or (C) is marketed by that person or another acting in concert with that person with that person’s knowledge for use in modifying or causing an analog video input device to no longer conform to the requirements set forth in paragraph (1)."

The bill would exempt from these requirements two classes of products and devices.

First, it would exempt a product or device that "was legally manufactured and sold as new before the effective date of this title and is subsequently offered for sale or otherwise trafficked in, if such product or device has not been modified, after such effective date, so that the product, if in compliance with section 101 before the modification, is configured so that the product or device is no longer in compliance with that section".

Second, it would exempt "a device capable solely of displaying programs and cannot be upgraded or readily modified so as to incorporate transmission, redistribution, or recording capabilities."

The bill then provides in § 103 that "No person shall encode a program, or cause a program to be encoded, using the rights signaling system", unless such encoding meets several requirements. For example, "The rights signaling system may be encoded so as to prevent or limit copying, redistribution, or both, of prerecorded media, video on demand, pay-per-view, subscription-on-demand, and undefined business models that are comparable to any such defined business model."

The bill also requires in § 104 that "Any person making a transmission of a live event or an audiovisual work protected by copyright shall, upon the request of an owner or authorized licensee of the live event or copyrighted work, include in its transmission the rights signaling system for the transmission and shall not, without the authorization of such owner or licensee, deactivate or alter the rights signaling system."

The bill provides both civil and criminal remedies for violations of the requirements contained in § 101 of the bill.

The bill does not identify which Title of the U.S. Code would be amended by the bill. The bill contains no findings of fact, or statement of purposes.

The sponsors of this bill state that their purpose is to protect analog content from digital piracy.

Some critics of the bill, such as the EFF, refer to proposals, such as those contained in this bill, as technology mandates and lockware, and argue that such proposals would enable copyright holders to control use of their content, as well as restrict infringement.

Rep. Sensenbrenner has a record of introducing legislation, not solely for the purpose of enacting it into law, but also for the purpose of prodding interested parties into negotiations. Rep. Sensenbrenner stated that "I urge all interested parties to continue to negotiate to see if a private sector solution can be fully developed to secure analog content from theft. This issue is simply too important for parties to avoid negotiations. Nonetheless, I look forward to working on this legislation next year".

The bill assigns rulemaking authority to the U.S. Patent and Trademark Office (USPTO), in consultation with the Copyright Office (CO). The USPTO has not publicly commented on this. However, the USPTO possesses considerable expertise in patent and trademark matters, but not copyright. Moreover, its expertise in new technologies relates to patenting, not regulating.

The Federal Communications Commission (FCC) previously wrote broadcast flag rules, without an express statutory grant of rulemaking authority from the Congress. The U.S.Court of Appeals (DCCir) overturned these rules. See, May 6, 2005, opinion [34 pages in PDF] in American Library Association v. FCC. The Congress has not since enacted legislation that confers such rulemaking authority, although the Motion Picture Association of America (MPAA) has lobbied for such legislation. See also, story titled "DC Circuit Reverses FCC's Broadcast Flag Rules" in TLJ Daily E-Mail Alert No. 1,113, May 9, 2005.

Were the bill to give rulemaking authority to the FCC, that would give the House Commerce Committee (HCC) a claim to jurisdiction over the bill, and oversight over the rulemaking process. The HCC in recent years has aggressively sought to expand its turf to include intellectual property issues previously handled by the HJC. Hence, by giving rulemaking authority to the USPTO, Rep. Sensenbrenner and Rep. Conyers may seek to avoid HCC involvement in this issue. On the other hand, they could have delegated rulemaking authority to the Library of Congress, or to the Department of Justice, both of which have attorneys with expertise in copyright law and new technologies.

OMB Releases Report on E-Government

12/16. The Office of Management and Budget (OMB) released a report [12 pages in PDF] titled "Expanding E-Government: Improved Service Delivery for the American People Using Information Technology". This report provides only limited information. However, it does state that "Our goal is to be the best manager, innovator and user of information, services and information systems in the world."

Clay Johnson, Deputy Director for Management for OMB, stated in a release [PDF] that "The E-government initiative is making the Federal government more efficient and effective, and is improving program results. By setting high goals and working closely with agencies, we are delivering better value for taxpayers".

Rep. Tom Davis (R-VA), Chairman of the House Government Reform Committee, stated in a release that "Prior to the E-Government Act, the federal government moved at an Old Economy speed in realizing the true potential of information technology. Agencies developed E-gov projects in isolation, according to agency jurisdiction rather than integrated cooperatively according to function, and more specifically, the need of the citizen. The passage of the E-Government Act of 2002, which I authored, has helped unleash the information revolution in Washington and bring an analog government into the digital age."

Rep. Davis added that "I'm quite pleased with the federal government's success in implementing E-government initiatives. As we continue to move forward, Congress must ensure that our government is utilizing the latest technologies to improve operational efficiencies and streamline the delivery of services. We've accomplished much these past three years, but we can and should do more, especially in the area of cyber-security. If the government continues to use technology to its advantage, it will prove to be the best vehicle we have for the creation and maintenance of good government."

The OMB also released a memorandum [6 pages in PDF] for the heads of executive departments and agencies regarding "Improving Public Access to and Dissemination of Government Information and Using the Federal Enterprise Architecture Data Reference Model".

Chairman Barton Hospitalized

12/16. Rep. Joe Barton (R-TX), the Chairman of the House Commerce Committee (HCC), was hospitalized on Thursday evening, December 15, 2005. He had surgery to insert stents.

Karen Modlin, Press Secretary to Rep. Barton (at right), wrote in a December 15 release that "Chairman Barton felt ill during a meeting at the Capitol this evening. He was treated by the Attending Physician and then admitted to George Washington University Hospital. He is alert, resting and in stable condition. He is also unhappy to be absent, and we expect his return to work as quickly as his doctors complete their evaluation and release him. We will not presume a diagnosis, but we will update you further in the morning, or earlier if further information becomes available."

Rep. Fred Upton (R-MI), the Chairman of the HCC's Subcommittee on Telecommunications and the Internet, stated in the House on Friday, December 16, that "He had three stents put in this morning". See, Congressional Record, December 16, 2005, at page H11923.

The Food and Drug Administration's (FDA) web section on cardiovascular disease contains a web page on stents. It states that "A stent is a small, lattice-shaped, metal tube that is inserted permanently into an artery. The stent helps hold open an artery so that blood can flow through it." It adds that "A stent is used to hold open an artery that has become too narrow due to atherosclerosis. In atherosclerosis, plaque builds up on the inner walls of arteries, the blood vessels that carry oxygen-rich blood throughout the body." The FDA adds that "Once in place, the stent helps holds the artery open so that the heart muscle gets enough blood."

See also, the National Institute of Health's (NIH) National Library of Medicine's (NLM) definition of stent.

Rep. Upton also said that "I talked with him at length a little bit earlier this morning. He is doing quite well." And, Rep. Upton said that "He is expected to make a full recovery. In fact, he may be here later in the weekend to cast a vote or two if it is required."

Rep. Barton missed roll call votes on Friday and Saturday.

Bush Announces FEC Nominations

12/16. President Bush announced four nominations to the six member Federal Election Commission (FEC). See, White House release and release.

Bush nominated Robert Lenhard, a Democrat, for a term expiring on April 30, 2011. If confirmed by the Senate, he will replace former Commissioner Danny McDonald, whose term has expired. Lenhard is currently Associate General Counsel for the American Federation of State, County and Municipal Employees (AFSCME). He previously worked for the law firm of Kirschner Weinberg & Dempsey.

Bush nominated David Mason, a Republican, for a term expiring on April 30, 2009. This is a reappointment.

Bush nominated Hans von Spakovsky, a Republican, for a term expiring on April 30, 2011. This is for the seat vacated by former Commissioner Brad Smith. He is currently Counsel to the Assistant Attorney General for the Civil Rights Division at the Department of Justice.

Bush nominated Steven Walther, a Democrat, for a term expiring on April 30, 2009. If confirmed, he will replace former Commissioner Scott Thomas, whose term has expired. He is a partner in the Reno, Nevada, law firm of Walther Key Maupin Oats Cox & LeGoy.

The FEC is currently in the process of writing rules to regulate online political speech. See, story titled "FEC to Write Rules Regulating Online Speech by End of February" in TLJ Daily E-Mail Alert No. 1,248, November 7, 2005.

On November 2, 2005, the House rejected HR 1606, the "Online Freedom of Speech Act", a bill that would have limited the FEC's authority to regulate online political speech. See, stories titled "House Rejects Online Freedom of Speech Act" and "Commentary: Analysis of the Vote on HR 1606" in TLJ Daily E-Mail Alert No. 1,246, November 3, 2005.

People and Appointments

12/16. President Bush nominated Randy Smith to be a Judge of the U.S. Court of Appeals (9thCir). See, White House release. Smith is a state court judge in Idaho. The judge he is nominated to replace is Stephen Trott, whose state is debated. Trott was from California at the time of his appointment, but later moved to Idaho. 9th Circuit nominations are normally divisive on ideological grounds. This nomination is also divisive on state of origin grounds. Some Californians argue that the seat is a California seat, and must be filled by a Californian.

12/16. President Bush nominated Michael Barrett to be a Judge of the U.S. District Court for the Southern District of Ohio. See, White House release.

More News

12/16. The Federal Communications Commission (FCC) adopted and released an Order Extending Effective Date [3 pages in PDF] in its proceeding titled "In the Matter of Children's Television Obligations Of Digital Television Broadcasters". The order extends the effective date of the requirements imposed by the FCC's September 9, 2004, order regarding the obligation of television licensees to provide educational programming for children and the requirement that television licensees protect children from excessive and inappropriate commercial messages. The FCC adopted that Report and Order and Further Notice of Proposed Rulemaking at its September 9, 2004 meeting. It released the text on November 23, 2004. That item is FCC 04-221 in MM Docket 00-167. See also, story titled "FCC Adopts Report and Order Re Children's Programming Obligations of DTV Broadcasters" in TLJ Daily E-Mail Alert No. 975, September 13, 2004. There are pending petitions for reconsideration. The just released order extends the September 9, 2004, order's effective date until 60 days after publication in the Federal Register of the FCC's order on reconsideration. This just released order is FCC 05-211 in MM Docket No. 00-167.

12/16. President Bush released a document titled "Memorandum for the Heads of Executive Departments and Agencies" regarding "Guidelines and Requirements in Support of the Information Sharing Environment". President Bush also released a shorter document titled "Message to the Congress of the United States on Information Sharing".

12/16. The Office of Management and Budget (OMB) released a memorandum [45 pages in PDF] for the heads of executive departments and agencies regarding "Final Information Quality Bulletin for Peer Review". It states that it "establishes government-wide guidance aimed at enhancing the practice of peer review of government science documents".

Go to News from December 11-15, 2005.