TLJ News from May 1-5, 2006

Court of Appeals Hears Oral Argument in Challenge to FCC's August 5 CALEA Order

5/5. A three judge panel of the U.S. Court of Appeals (DCCir) heard oral argument in ACE v. FCC. Judge Edwards repeatedly stated, with various blunt terms, that the argument of the Department of Justice (DOJ) and the Federal Communications Commission (FCC) that broadband service providers are subject to the requirements under the 1994 Communications Assistance for Law Enforcement Act (CALEA) is nonsense. See, full story.

Commentary: Administrative Process and the FCC

5/5. This article comments on the nature of the administrative process generally, but particularly at the Federal Communications Commission (FCC), and especially in its proceeding related to the Communications Assistance for Law Enforcement Act (CALEA).

Several models have been advanced to explain the nature and operation of executive branch commissions, administrative law, and administrative procedure.

One model, which FCC personnel often use to describe and explain their activities, is that the Congress legislates statutes of general applicability, some of which regulate specific industry sectors, or areas of economic activity. In these statutes the Congress often sets general statutory principles, but then delegates to an administrative commission various functions, which may include promulgation of detailed and technical regulations that implement the statute, administrative enforcement of the statute and regulations, administrative adjudication of disputes, and/or licensing of products, services and industry participants.

Those who articulate this model further explain that these commissions are independent of outside pressures. Moreover, they and are comprised of technical personnel, including engineers, scientists, and accountants, who possess special expertise in the technology and business practices of the business activity that they regulate.

While this model may often assist in explaining the work of some commissions, including the FCC, it is largely useless in explaining what the FCC is doing in the present CALEA proceeding.

The FCC is not implementing a statute. Rather, it has repeatedly announced conclusions that are inconsistent of the plain meaning of the CALEA statute, and relevant definitions in the Communications Act.

The FCC has not promulgated detailed technical regulations. In its just announced order it essentially transfers this function to outside interests. The FCC possesses no special expertise on the emerging information technologies over which the government seeks universal surveillance. The FCC is an agency comprised largely of lawyers. It does have a small minority of engineers, but their expertise is largely in older technologies over which the FCC actually has statute based regulatory authority.

The FCC is not acting independently; it is responding to pressures from the DOJ, FBI, Bush administration, and some members of Congress.

The FCC is acting, in a time honored manner, in the pursuit of the noble policies of fighting terrorism and crime. Yet, it is not acting pursuant to the official model of administrative law. It is following a second model of the administrative process described in this article.

This model describes administrative commissions, in part, as a response to the inherent difficulty of government action, including enactment of statutes. The Founding Fathers deliberately created a system of government in which it would be difficult for the government to act. James Madison explained and defended this notion of separation of powers in Federalist No. 10 and No. 51.

He wrote in No. 51 that "We see it particularly displayed in all the subordinate distributions of power, where the constant aim is to divide and arrange the several offices in such a manner as that each may be a check on the other that the private interest of every individual may be a sentinel over the public rights."

He continued that "In republican government, the legislative authority necessarily predominates. The remedy for this inconveniency is to divide the legislature into different branches; and to render them, by different modes of election and different principles of action, as little connected with each other as the nature of their common functions and their common dependence on the society will admit."

Madison also wrote that "In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other ..."

Former Sen. Ernest Hollings (D-SC), who for years was the Chairman or ranking Democrat of the Senate Commerce Committee, summed up the Madisonian concept in a saying that went something like this: Anybody can stop a bill, but it takes a lot of folks to pass a bill.

It is hard to enact a telecommunications bill. For example, while the Department of Justice (DOJ) would like to see an expansion of many surveillance related statutes, getting a statute enacted is another matter. Simply getting the USA PATRIOT extended was a major undertaking for the DOJ.

Several institutions have been created that to some extent facilitate the enactment of policies in the face of institutional barriers to the enactment of bills. One is the federalization of functions once performed at multiple levels of government. Another is the development of organized political parties.  Yet another is the creation of executive branch commissions, such as the FCC. This article addresses only this third development.

While it is hard to get a bill through the Congress, with is bicameral structure, committees and subcommittees, filibusters, transparent operations, and Presidential veto threats, it takes only three out of five FCC Commissioners on any given day to make law.

The Congress and President are not removed from the administrative process. The FCC has been structured to be subject to political pressure from the President and Congress. The same pressures and interests involved in the Madisonian process can also become involved in this second process. The main difference is that the minimum level of consensus required for action is much higher under the Madisonian process.

The President exerts considerable influence over the FCC by appointing its members, designating its Chairman, proposing its budget, and providing or withholding support services from executive branch departments. For example, the DOJ likely leveraged its control over the certiorari process in the Brand X case to pressure the FCC to adopt the 2004 CALEA NPRM, and the 2005 order and FNPRM. See, for example, story titled "Rep. Pickering Suggests Relationship Between the DOJ's Brand X Cert Petition and the FCC's CALEA NPRM" in TLJ Daily E-Mail Alert No. 974, September 10, 2004.

The Congress exerts considerable influence over the FCC by confirming members, granting or withholding appropriations, attaching riders to appropriations bills, and oversight and investigations.

Moreover, while there is judicial review of final orders of the FCC, the impact of this is limited. First, the standards set by the Congress in the Administrative Procedure Act ("arbitrary and capricious"), and the judicial Chevron standard, are high.

Also, the FCC is adept at evading judicial review. Many of its actions are not in the form of final orders (such as policy statements, further guidance in orders in non-rulemaking proceedings, and unwritten rules), and hence, are not subject to review. Many of its actions are in the nature of consent agreements, and hence, are not subject to review. There is also the matter that many regulated entities are repeat players before the FCC and, as former Chairman William Kennard warned, must be cautious to maintain their goodwill at the FCC.

Hence, under this second model of the administrative process, commissions, such as the FCC, exist and operate, in part, to evade the constraints of a Madisonian system of separation of powers, and the resulting governmental inertial. Proponents of this model find that economic regulation is just too important to be subjected to the cautious and consensus building process of Madisonian republicanism.

Under this second model, commissions do not implement statutes. They create law in matters where there is substantial pressure from the Congress and executive branch to do so, but insufficient support to move a bill through the Congress. Under this model, the commission performs a function that is legislative in nature.

The gist of this piece is that in the present CALEA proceeding, the FCC's actions cannot be explained by the official model of the administrative process. However, the FCC's actions can be well explained by this second model.

First, the FCC's claim to be implementing the CALEA statute is feable. The FCC has repeatedly taken words that appear in the CALEA and the Communications Act, and given them meaning contrary to their plain meanings in the English language, and contrary to prior interpretations by the FCC.

The FCC has asserted, for example, the same service is both an information service and telecommunications, depending upon which statutory regulatory regime the FCC wants to apply to it for which purposes. On May 5, Judge Harry Edwards, speaking in the context of the official model of the administrative process, called the FCC's argument "goobledygook".

The FCC has taken the substantial replacement language of the CALEA, and subjected it to a phrase by phrase deconstruction and reassignment of the meaning of words. Commissioner Copps, who joined in the latest FCC order, nevertheless wrote that "the challenge is complicated by the Commission's theory of substantial replacement that collapsed the statutory dichotomy between information services and telecommunications services in a stretch ..."

The FCC has just decided that it has administrative enforcement authority, even though the wording of the statute is clear that there exists only judicial enforcement authority.

In furtherance of the policy goal of attaining universal surveillance of terrorists, drug dealers, pornographers, and all other users of information services, rough lawyers at the FCC stand ready to visit violence upon the English language.

Second, under the official model of administrative procedure, the commission implements a statute. But, in the CALEA proceeding, the FCC is not even attempting to implement a statute. The FCC has not, and on May 3 announced that it will not, promulgate technical rules to identify what CALEA compliance means for broadband access services and interconnected VOIP services.

Third, under the official model of administrative procedure, the commission is both an independent and expert body. But, in the CALEA proceeding, the FCC is responding to pressures from the DOJ, administration and some members of Congress.

Gonzales Says Foreign Governments Should Have Access to Information Collected under Data Retention Mandate

5/5. Attorney General Alberto Gonzales gave a speech in Vienna, Austria, at an European Union interior ministers conference. He again advocated requiring service providers to electronically surveil their customers.

He said that "we must preserve data and have it available to be shared with another country".

Gonzales advocated a data retention mandate in a speech on April 20, 2006. See, story title "Gonzales Proposes Data Retention Mandate, Web Site Labeling, and Ban on Deceptive Source Code" in TLJ Daily E-Mail Alert No. 1,357, April 25, 2006. However, in his May 5 speech he also argued that the fruits of this surveillance should be shared, not only with law enforcement agencies in the U.S., but also with foreign governments.

Alberto GonzalesGonzales did not elaborate in the prepared text of his speech on what procedure the governments of the People's Republic of China, Syria, and North Korea would follow to obtain information from service providers in the U.S. under his proposal.

However, Gonzales (at right) did state in his May 5 speech that "in many European states the practice of obtaining electronic surveillance without a judicial warrant has long been accepted, and is not seen as offensive to a proper respect for liberty and privacy interests."

He continued. "In contrast, as you know, in the United States there has been extensive debate over whether the Terrorist Surveillance Program violated the U.S. Constitution or civil rights because judicial warrants were not required. The answer to that question is ``No´´ -- the program is fully constitutional and protective of civil liberties. But the very fact that the debate took place reflects different U.S. and European perspectives on electronic surveillance."

He added, "So too with the intersection of freedom of speech and terrorism: observers have long noted the difference between broader American and stricter European conceptions of free speech. In the context of fighting terrorism, this has meant that European countries may go farther to punish speech than would be possible in the United States. This has relevance in our discussions about shutting down websites that recruit jihadists."

He also said, "I am not advocating that America adopt a European model, or vice versa, in fighting terrorism. Instead, I seek merely to point out that our democracies have developed different governmental structures to fight terrorism in a manner that protects rights in different ways."

House Commerce Committee Considers Data Retention Mandate

5/5. Rep. Diana DeGette (D-CO) offered and withdrew an amendment to broadly mandate data retention at the House Commerce Committee's (HCC) mark up of the COPE Act on April 26, 2006. Chairman Joe Barton (R-TX) stated at that mark up that he supports the concept, and wants to amend the bill when it goes to the House floor. In addition, Attorney General Alberto Gonzales has given at least two speeches recently in which he has proposed mandatory data retention by service providers.

Rep. Barton has not spoken in detail about the proposal. Gonzales has not specified what a data retention bill would require. However, the draft amendment offered by Rep. DeGette provides some specifics.

Rep. Barton said at the mark up that the DeGette amendment "on the face of it has great merit.", but that "we have some germaneness questions and some jurisdictional questions". He added that he supports either adding this to a managers amendment or as a free standing amendment when the COPE Act goes to the House floor.

"We think the policy has merit", said Barton. "We will get it in the bill."

Rep. Diana DeGetteRep. DeGette (at right) said at the mark up that "law enforcement authorities cannot find these perpetrators because they cannot get the records of where they are. Many witnesses in law enforcement feel that it would be very helpful if the internet service providers would retain certain records for a year,  in case they need to subpoena those records to help capture people ..."

She continued that "I think that they should just have to preserve identifying information of people who close down their accounts". She added that ISPs should not have to provide this information "willy nilly to anybody who asks for it". But she said that a subpoena should be sufficient. However, she did also reference "probable cause".

No one else spoke about the amendment at the mark up.

On April 20, 2006, Attorney General Alberto Gonzales gave a speech in Alexandria, Virginia, in which he proposed that internet service providers (ISPs) be required to retain data. While the DOJ released proposed statutory language for some other proposals that Gonzales advanced in this speech, it released no proposed data retention language. See, Gonzales' letter and proposed bill [10 pages in PDF].

Gonzales said in his speech that "we have to make sure law enforcement has all the tools and information it needs to wage this battle. The investigation and prosecution of child predators depends critically on the availability of evidence that is often in the hands of Internet service providers. This evidence will be available for us to use only if the providers retain the records for a reasonable amount of time." See also, story titled "Gonzales Proposes Data Retention Mandate, Web Site Labeling, and Ban on Deceptive Source Code" in TLJ Daily E-Mail Alert No. 1357, April 25, 2006.

Gonzales gave his second speech on May 5. He added in this speech that the fruits of this program should be made available to foreign governments. See, story in this issue titled "Gonzales Says Foreign Governments Should Have Access to Information Collected under Data Retention Mandate".

Rep. DeGette offered her amendment late in the day during the HCC's mark up of HR 5252, the "Communications Opportunity, Promotion, and Enhancement Act of 2006", or COPE Act. It is short, and hence, set out in full beneath this article.

DeGette said at the mark up that she is not satisfied with the language. A staff assistant told TLJ that she would revise the proposal and offer it as an amendment to the COPE Act, or as a stand alone bill. She has not yet introduced a stand alone bill. The COPE Act has not yet come up for consideration on the House floor. It is not on the House calendar for the week of May 8.

The draft amendment appears to be a hastily and inexpertly drafted amendment. It is not clear as to what entities and persons would be covered. Nor is it clear as to what mandates would be imposed upon them.

The amendment would require "each provider of Internet access services to retain records to permit the identification of subscribers to such services for appropriate law enforcement purposes. Such records shall ... be retained for not less than one year after a subscriber ceases to subscribe to such services.". It uses, but does not define, the terms "records", "service", and "subscriber".

While the title of the draft amendment uses the term "ISPs", the statutory language in the amendment provides instead that it would regulate any "Internet access service". Moreover, this term is defined by the amendment in a manner contrary to the plain meaning of these words. It is defined broadly as "a service that enables users to access content, information, electronic mail, or other services offered over the Internet" and includes "a service that enables users to ... access ... information". This would include any individual who operates an e-mail list or subscription based web site or blog. It may be the case that Rep. DeGette had not given much thought to her amendment before she offered it.

While the amendment is unclear as to who would be regulated, and what would be the regulatory mandates, the bill clearly identifies several fundamental changes to the process by which law is made.

First, this is an amendment to a bill over which the House Commerce Committee has sole jurisdiction. Moreover, this amendment specifies that it would amend the Communications Act of 1934. Also, it would amendment Title 47 of the U.S. Code, rather than Title 18. Heretofore, legislation regarding government surveillance, authority to surveil, access to stored communications, and investigation of crimes, has been a matter for consideration by the House Judiciary Committee (HJC).

This amendment is an end run around HJC jurisdiction. The HJC has jurisdiction over crime, criminal procedure, search and seizure. It also has the staff and members with expertise in this area. Also, it members, both Republican and Democratic, tend to be more concerned with protecting privacy rights against government encroachment than their counterparts on the HCC.

The HCC has a history of encroaching on the jurisdiction of the HJC. However, in recent years it has focused on obtaining jurisdiction over matters that are intellectual property related, rather than crime related.

Second, this amendment would convert one aspect of what has heretofore been a matter of criminal law and procedure, and make it a matter of telecommunications law.

Third, this amendment, by delegating authority to write implementing regulations to the FCC, would convert what has heretofore been a matter of statutory law into administrative law.

This has consequences. For example, the FCC's proceedings regarding extending CALEA like obligations to VOIP service providers and extending the E911 regulatory regime to VOIP service providers have demonstrated that the FCC is far more likely to respond to the requests of the DOJ than is the HJC and the Congress.

AMENDMENT TO THE COMMITTEE PRINT OFFERED BY MS. DEGETTE OF COLORADO

Records retention by ISPs

At the end of the bill add the following new title:

TITLE VI—RECORDS RETENTION

SEC. 601. RECORD RETENTION REGULATIONS REQUIRED.

Title VII of the Communications Act of 1934 (47 U.S.C. 601 et seq.) is further amended by adding after section 718 (as added by section 501 of this Act) the following new section:

SEC. 719. RECORD RETENTION BY PROVIDERS OF INTERNET ACCESS SERVICE.

(a) REGULATIONS REQUIRED.—Within 90 days after the date of enactment of this section, the Commission shall prescribe regulations requiring each provider of Internet access services to retain records to permit the identification of subscribers to such services for appropriate law enforcement purposes. Such records shall, in accordance with such regulations, be retained for not less than one year after a subscriber ceases to subscribe to such services.

(b) DEFINITION.—For purposes of this section:

(1) INTERNET.—The term ‘Internet’ means the combination of computer facilities and electromagnetic transmission media, and related equipment and software, comprising the interconnected worldwide network of computer networks that employ the Transmission Control Protocol/Internet Protocol or any successor protocol to transmit information.

(2) INTERNET ACCESS SERVICE.—The term ‘Internet access service’ means a service that enables users to access content, information, electronic mail, or other services offered over the Internet, and may also include access to proprietary content, information, and other services as part of a package of services offered to consumers. Such term does not include telecommunications services.

People and Appointments

5/5. Porter Goss resigned as Director of the Central Intelligence Agency (CIA). See, statements by Goss and President Bush.

People and Appointments

5/4. President Bush nominated Jerome Holmes to be a Judge of the U.S. Court of Appeals for the 10th Tenth Circuit. Consequently, Bush withdrew his nomination of Holmes to be a Judge of the U.S. District Court for the Northern District of Oklahoma. See, White House release.

5/4. President Bush nominated Valerie Baker to be a Judge of the U.S. District Court for the Central District of California. See, White House release.

5/4. President Bush nominated Charles Rosenberg to be the U.S. Attorney for the Eastern District of Virginia for the term of four years. See, White House release. If confirmed by the Senate, Rosenberg will replace Paul McNulty, who resigned to become Deputy Attorney General. See also, story titled "Bush Picks Paul McNulty to Be Deputy Attorney General" in TLJ Daily E-Mail Alert No. 1,238, October 24, 2005.

5/4. The Senate confirmed Brian Cogan to be a Judge of the U.S. District Court for the Eastern District of New York. See, Congressional Record, May 4, 2006, at Page S4092.

5/4. The Senate confirmed Thomas Golden to be a Judge of the U.S. District Court for the Eastern District of Pennsylvania. See, Congressional Record, May 4, 2006, at Page S4092.

More News

5/4. The National Institute of Standards and Technology (NIST) released its Draft Special Publication 800-80 [49 pages in PDF], titled "Guide for Developing Performance Metrics for Information Security". Public comments are due by Monday, June 19.

FCC Further Amends CALEA Statute

5/3. The Federal Communications Commission (FCC) adopted, but did not release, a document titled "Second Report and Order and Memorandum Opinion and Order" in its proceeding related to the Communications Assistance for Law Enforcement Act (CALEA).

The FCC issued a short and vague release [2 pages in PDF] that describes this item, and the four Commissioners read and released short prepared statements.

See, statement [PDF] of Kevin Martin, statement [PDF] of Michael Copps, statement [PDF] of Jonathan Adelstein, and statement [PDF] of Deborah Tate.

The FCC's release states that the FCC reiterates it prior assertions that facilities based broadband internet access and interconnected VOIP providers are subject to CALEA requirements. It further states that the FCC sticks to its May 14, 2007, deadline for coming into compliance. It further states that the FCC will not write rules that identify what are the compliance requirements. It leaves this to outside interests. It also asserts that the FCC has authority to bring administrative enforcement actions for non-compliance. It also permits private intercept management providers to conduct intercepts.

Kevin MartinMartin (at right) wrote that "We address important issues under CALEA such as cost recovery, compliance processes, and enforcement, providing further clarity for entities subject to CALEA to continue to work toward full CALEA compliance. I remain committed to ensuring that these providers take all necessary actions to incorporate surveillance capabilities into their networks in a timely fashion. Further we will continue to work to address and overcome any challenges that stand in the way of effective lawful electronic surveillance."

Perhaps the most significant component of this item is the FCC's announcement that it has not, and will not, write rules that define what it means to come into compliance with the CALEA in the context of broadband access services or interconnected VOIP services. That is, affected entities have a deadline for compliance, but no specification as to what compliance is.

Perhaps it should also be noted here what else the FCC has not yet done. While the FCC has been working on this issue for years, it has yet to make a detailed finding, based upon a factual inquiry, that the internet and other information technologies are hindering law enforcement efforts. Nor has the FCC engaged in an inquiry into how new technologies have enhanced law enforcement efforts, by enabling law enforcement agencies to obtain more stored communications and data, and to electronically store, analyze and access the data that it obtains.

Nor has the FCC made a detailed finding of fact regarding whether telecommunications carriers, or other entities, are complying with their wiretap and CALEA obligations or demands, or cooperating with law enforcement agencies. The facts that the FCC has not yet brought a single judicial enforcement action, or administrative enforcement proceeding, suggest that there is no substantial non-compliance problem. Finally, the FCC has made no detailed findings regarding the impact of expanding the CALEA regime on individual privacy and information security. The FCC has, at best, made several conclusory statements, at the urging of the DOJ, without engaging in a substantial review.

This item is FCC 06-56 in ET Docket No. 04-295.

Deadlines and Standards. The FCC's release states that "the CALEA compliance deadline for facilities-based broadband Internet access and interconnected VoIP services will be May 14, 2007". Like some other FCC imposed deadlines, this one may be more illusory than real.

There are no standards with which to come into compliance. The FCC announced in its first order, adopted on August 5, 2005, that May 14, 2007, is the compliance deadline. But that order contained no standards. Essentially, it only identified, in broad strokes, which entities are covered. The just issued release states that the second order contains no standards either. Rather, it states that "it would be premature for the Commission to intervene in the ongoing process by which telecommunications standards-setting bodies, acting in concert with LEAs and other interested persons, are developing assistance capability standards."

Nine months of the compliance period have already lapsed. The FCC has announced that certain information services have CALEA obligations, but not promulgated any body of rules that identify what those obligations are. And now, all the FCC has done in the present order is delegate authority to outside entities to negotiate standards.

The FCC will not likely expect providers of new services to be in compliance until a reasonable period of time after there are standards for those entities.

Administrative Enforcement by the FCC. The FCC's release states that "the Order finds that the Commission may, in addition to law enforcement remedies available through the courts, take separate enforcement action under section 229(a) of the Communications Act against carriers that fail to comply with CALEA."

The FCC has never initiated an administrative enforcement action, or judicial enforcement proceeding, against any entity, carrier or information service, for failing to comply with CALEA obligations. (Julius Knapp discussed this at a news conference on May 3, and parties have addressed this in comments submitted to the FCC.) There are likely several reasons for this. One reason is likely that, contrary to the arguments of the DOJ and LEAs, and the conclusory statements of the FCC, carriers and others are cooperating with law enforcement, and are providing intercepts. That is, there have been few entities against which the FCC would want to bring an enforcement action.

Second, in the case of providers of new information services, if the FCC were to wish bring an enforcement action, it might be deterred by the circumstance that it lacks the in house technical expertise to investigate and pursue an action that would withstand judicial review.

However, even if there had been serious violators, and the FCC had had the expertise and resources to bring enforcement actions, it likely would not have brought any administrative enforcement actions. Simply put, it lacks statutory authority. The CALEA is clear. The only formal enforcement option is through judicial action.

The FCC's release states that the FCC's order concludes that the FCC has enforcement authority under Section 229(a) of the Communications Act. Yet, Section 229 provides that "The Commission shall prescribe such rules as are necessary to implement the requirements of the Communications Assistance for Law Enforcement Act". It is a grant of rulemaking authority, not a grant of enforcement authority.

Neither the FCC's release, nor the statements of any of the Commissioners articulates an argument for how Section 229 creates administrative enforcement authority.

The FCC has not initiated a single administrative enforcement action in the 14 years that the CALEA has been in effect. It is not likely to bring an action any time soon.

Private Intercept Management Providers. The FCC's release states that "the Order permits telecommunications carriers the option of using Trusted Third Parties (TTPs) to assist in meeting their CALEA obligations and providing LEAs the electronic surveillance information those agencies require in an acceptable format. The record indicates that TTPs are available to provide a variety of services for CALEA compliance to carriers, including processing requests for intercepts, conducting electronic surveillance, and delivering relevant information to LEAs."

Commission Copps wrote that "trusted third parties are a legitimate way for carriers to manage their CALEA obligations. The record shows TTP availability and capability to perform a number of services to advance CALEA compliance. Trusted third party participation should also mean more cost-effective options for compliance, particularly for smaller carriers."

The FCC's use of the phrase "Trusted Third Parties" presumes as true a question that remains in dispute -- whether private entities that manage intercepts for carriers and information services can be trusted to the same extent that entities involved in the intercept process today can be trusted.

Reaction. The National Cable & Telecommunications Association (NCTA) and CableLabs released a joint statement: "Cable has long supported efforts to provide appropriate legal assistance to law enforcement agencies, while addressing subscriber privacy and security, as law enforcement agencies seek to apply U.S. laws to new technologies and services. Cable was among the first to develop means to accommodate legitimate law enforcement needs with respect to Voice over Internet Protocol (VoIP) services even before the FCC determined that CALEA applied to cable’s VoIP services. In addition, CableLabs has been working with the FBI and others on a similar accommodation with respect to cable modem services. Today’s FCC action is a logical next step in setting CALEA compliance ground rules as they apply to broadband services.  CableLabs and the cable industry look forward to addressing any unresolved issues involving the application of CALEA to cable modem service consistent with the customer privacy rights embodied in that statute."

House Crime Subcommittee Approves Internet Gambling Prohibition Act

5/3. The House Judiciary Committee's (HJC) Subcommittee on Crime, Terrorism, and Homeland Security approved HR 4777, the "Internet Gambling Prohibition Act", by voice vote, without amendment. The bill has 131 cosponsors.

The Subcommittee held a hearing on this bill on April 5, 2006. Rep. Bob Goodlatte (R-VA), the sponsor of the bill, wrote in his prepared testimony at that hearing that "Current federal law already prohibits interstate gambling over telephone wires. However, because the Internet does not always travel over telephone wires, these laws, which were written before the invention of the Internet, have become outdated." He added that HR 4777 "brings the current prohibition against wireline interstate gambling up to speed with the development of new technology. It also makes clear once and for all that the prohibition is not limited to sports-related bets and wagers."

Rep. Goodlatte (at right) also stated that HR 4777 "will add a new provision to the law that would prohibit a gambling business from accepting certain forms of non-cash payment, including credit cards and electronic transfers. This bill also provides an enforcement mechanism to address the situation where the gambling business is located offshore but accepts money from bank accounts in the United States. The bill also provides an additional tool to fight illegal gambling by giving Federal, State, local and tribal law enforcement new injunctive authority to prevent and restrain violations of the law."

He also said the "H.R. 4777 will return control to the states by protecting the right of citizens in each State to decide through their State legislatures if they want to allow gambling within their borders."

See also, April 5, 2006, prepared testimony [5 pages in PDF] of Bruce Ohr, of the Department of Justice's Criminal Division. He expressed concern that the bill would allow interstate wagering by the horse racing industry. See also, prepared testimony [8 pages in PDF] of John Kindt (University of Illinois) and prepared testimony [9 pages in PDF] of Sam Vallandingham (Independent Community Bankers of America).

On March 15, 2006, the House Financial Services Committee amended and approved, by voice votes, HR 4411, the "Unlawful Internet Gambling Enforcement Act of 2006". See, story titled "House Financial Services Committee Approves Internet Gambling Bill" in TLJ Daily E-Mail Alert No. 1,330, March 16, 2006.

HR 4777 is a criminal prohibitions bill within the jurisdiction of the HJC. HR 4411 is targeted at the financial transactions that fund what already constitutes unlawful internet gambling. It provides that no one engaged in the "business of betting or wagering" may knowingly accept certain financial transactions, including checks, electronic fund transfers, and credit card debt, in connection with "unlawful Internet gambling". The bill then requires the Department of the Treasury (DOT) and the Federal Reserve Board (FRB) to write regulations that require each "designated payment system" to identify and block these restricted transactions through the establishment of policies and procedures. The bill requires each "financial transaction provider" to comply with these DOT/FRB regulations. The bill also contains numerous exemptions and limitations.

People and Appointments

5/3. Pam Turner will resign as the Department of Homeland Security's (DHS) Assistant Secretary for Legislative Affairs at the end of May. See, DHS release.

5/3. Federal Communications Commission (FCC) Commissioner Deborah Tate named Susan Fisenne to be her Confidential Assistant. See, FCC release [PDF].

More News

5/3. President Bush gave a speech in Washington DC in which he again promoted his American Competitiveness Agenda. He advocated making the R&D tax credit permanent, more federal funding of basic research, and more federal funding of math and science education.

5/3. Federal Reserve Board (FRB) member Susan Bies gave a speech in which she discussed the role of the FRB in approving innovations in capital instruments.

5/3. The Federal Trade Commission (FTC) filed a comment [8 pages in PDF] with the U.S. Patent and Trademark Office (USPTO) in response to its notice of proposed rulemaking regarding rules changes affecting continuation practice. The USPTO proposed changes would allow each patent applicant to file one continuation as a matter of right, but would require that second and subsequent continuation filings be supported by a showing that the amendment, argument or evidence contained in the filing could not have been submitted earlier, during either the prosecution of the initial application or the first continuation. The FTC supports the USPTO's proposed rules changes, "because it accommodates the legitimate uses of continuations, limits abuses that can harm the competitive process, and promotes the patent system's ability to provide incentives to innovate by reducing pendency."

Sens. Cornyn and Lieberman Introduce Bill to Make Federally Funded Research Available to the Public

5/2. Sen. Jon Cornyn (R-TX) and Sen. Joe Lieberman (D-CT) introduced S 2695, the "Federal Research Public Access Act of 2006", a bill to make the fruits of some federal funded research available to the public.

The bill recites in its findings that "the Federal Government funds basic and applied research with the expectation that new ideas and discoveries that result from the research, if shared and effectively disseminated, will advance science and improve the lives and welfare of people of the United States and around the world" and "the Internet makes it possible for this information to be promptly available to every scientist, physician, educator, and citizen at home, in school, or in a library."

The bill provides that "each Federal agency with extramural research expenditures of over $100,000,000 shall develop a Federal research public access policy". The policy must address, among other things, the "free online public access to such final peer-reviewed manuscripts or published versions as soon as practicable, but not later than 6 months after publication in peer-reviewed journals".

This bill was referred to the Senate Committee on Homeland Security and Governmental Affairs. Sen. Lieberman is the ranking Democrat on the Committee. Sen. Jeff Sessions (R-AL) has since joined as a cosponsor.

Sen. Jon CornynSen. Cornyn stated in the Senate that "Each year, our Federal Government invests more than $55 billion on basic and applied research. ... The bulk of this money is spent by approximately 10 agencies, including: the National Institutes of Health, National Science Foundation, NASA, the Department of Energy, and the Department of Agriculture. These agencies use the money to fund research which is usually conducted by outside researchers working for universities, healthcare systems, and other groups." See, Congressional Record, May 2, 2006, at Page S3898.

He continued that "as it stands now, most Americans have little -- to no -- timely access to this wealth of information, despite the fact that their tax dollars paid for the research."

He summarized S 2695. "Under our bill, all Federal departments and agencies that invest $100 million or more annually in research will be asked to develop a public access policy. Each policy will require that all articles that result from federal funding be deposited in a publicly accessible archive no later than six months after publication. Our bill simply says to all researchers who seek government funding that we want the results of your work to be seen by the largest possible audience. It will ensure that U.S. taxpayers do not have to pay twice for the same research -- once to conduct it, and a second time to read it."

He said that "By sharing this information quickly and broadly with all potential users, we can advance science, accelerate the pace of new discoveries and innovations, and improve the lives and welfare of people at home and abroad."

Sen. Cornyn Introduces SKIL Act

5/2. Sen. Jon Cornyn (R-TX) and others introduced S 2691, the "Securing Knowledge, Innovation, and Leadership Act of 2006", or SKIL Act. The bill contains numerous changes to the Immigration and Nationality Act to enable businesses to employ a greater number of skilled citizens of other countries. It would increase the annual cap on skilled workers who obtain H1b visas, and increase the number of workers who obtain H1b visas who do not count towards the annual cap.

The cosponsors of the bill are Sen. George Allen (R-VA), Sen. Mike Enzi (R-WY), Sen. Trent Lott (R-MS), Sen. Wayne Allard (R-CO), and Sen. Bob Bennett (R-UT). The bill was referred to the Senate Judiciary Committee.

Sen. Cornyn stated that "I am introducing the SKIL bill because I don't believe enough attention has been focused on legal immigrants, especially the highly skilled workers who contribute to our economy and comply with our laws. It is my hope that this legislation will allow U.S. companies to retain a highly educated workforce until we can channel more American students into the math, science, and engineer pipeline. The SKIL bill is yet another important piece of the U.S. competitiveness agenda, and I urge my colleagues to cosponsor this important legislation." See, Congressional Record, May 2, 2006, at Page S3896.

8 U.S.C. § 1184 pertains to admission of nonimmigrants. Subsection 1184(g)(1)(A) contains the annual limit on H1b visas. These B1b visas, in turn, are addressed at 8 U.S.C. § 1101(a)(15)(H)(i)(b).

Subsection 1184(g)(5) exempts certain persons from the B1b cap. These exemptions currently include persons employed at an "institution of higher education" and "at a nonprofit research organization or a governmental research organization". It also exempts 20,000 persons annually who have "earned a master's or higher degree from a United States institution of higher education".

The SKIL bill would make several changes to broaden the exemptions from the H1b cap.

It would remove the 20,000 cap on the exemption for those with higher degrees from U.S. institutions. It would add to the exemption persons with higher degrees from "an institution of higher education in a foreign country" and persons "awarded medical specialty certification based on post-doctoral training and experience in the United States". It would also exempt persons employed at any "nonprofit organization".

These persons would all still need to meet the qualifications specified at Subsection 1101(a)(15)(H)(i)(b). The effect of Subsection 1184(g)(5) is to increase the number of H1b visas issued annually beyond the cap. The effect of the SKIL bill would be to greatly increase further the number of H1b visas issued annually.

Sen. Cornyn frequently used the terms "science", "technology", "engineering", and "mathematics" (STEM), and "economy" and "competitiveness" in his speech.

Yet, his bill would expand immigration of persons both with, and without, STEM related skills. The above described provisions of his bill treat a degree in electrical engineering no differently than a degree in sociology. Expanding the categories of workers exempt from the H1b cap to include employees of "nonprofit organizations" is unrelated to STEM specialties.

The SKIL bill would also increase the annual cap on H1b visas, which is currently 65,000, to "115,000 in the first fiscal year beginning after the date of the enactment of the Securing Knowledge, Innovation, and Leadership Act of 2006". Then, the bill provides that if the cap is reached during any year, the cap for the next year would be raised by 20%.

Hence, hypothetically, if this provision were to go into effect, and if the cap were met every year for five years, then in the sixth year the cap would grown to over 286,000 (not including those H1b visas issued that do not count towards the cap).

The bill would also amend 8 U.S.C. § 1151(b)(1), which addresses "Aliens not subject to direct numerical limitations". It would add "Aliens who have earned a master's or higher degree from an accredited United States university" and "Aliens who have earned a master's degree or higher in science, technology, engineering, or math and have been working in a related field in the United States in a nonimmigrant status during the 3-year period preceding their application for an immigrant visa under section 203(b)."

Sen. Cornyn added that "The SKIL bill requires the government to change its processes so that companies do not waste valuable resources. If a worker has been in the U.S. and has complied with all immigration laws, he should be allowed to renew his visa here in the U.S. Why make that worker go to a consulate when all of the processing can be done here in the U.S.?"

The American Electronics Association (AeA) wrote in a release praising this bill that "Current H-1B and EB visa policies have stifled the ability of talented foreign nationals to come into and stay in this county, undercutting the competitiveness of U.S. firms and therefore impeding growth. The jobs and wealth that have been created by these individuals, benefiting our economy for years, will now be enjoyed by those countries with less stringent immigration regulations. If the best talent in the world finds it too difficult to get into our country, they will turn to our overseas competitors, creating a true threat to our economic and national security."

Commerce Committee Democrats Write Statement on COPE Act

5/2. Nine Democrats on the House Commerce Committee (HCC) issued a statement [10 pages in PDF] explaining their opposition to HR 5252, the "Communications Opportunity, Promotion, and Enhancement Act of 2006", or "COPE Act", which the HCC approved on April 26, 2006.

See, story titled "Amendment by Amendment Summary of Full Committee Mark Up of COPE Act" in TLJ Daily E-Mail Alert No. 1,360, April 28, 2006.

They wrote that "The COPE Act represents a dramatic departure from historic communications policy goals of universal service, localism, and diversity."

The majority of the statement focuses on Title I of the bill, which creates a national cable franchise. The nine wrote that it "grants new cable operators access to a community’s public rights-of-way without any obligation to serve the entire community. ... Currently, cable operators must offer their services throughout entire franchise areas. Commonly referred to as a ``buildout´´ requirement, this universal service principle is a recognition that as part and parcel of using the public rights-of-way, cable operators must extend service to all the public."

The nine also wrote about network neutrality. They stated that "The corrosion of historic policies of nondiscrimination by the imposition of artificial bottlenecks by broadband network owners endangers economic growth, innovation, job creation, and First Amendment freedom of expression on such networks. Broadband network owners should not be able to determine who can and who cannot offer services over broadband networks or over the Internet. The detrimental effect to the digital economy would be quite severe if such conduct were permitted and became widespread. The COPE Act permits such conduct and as a result, puts the Internet in jeopardy."

Title II of the COPE Act provides that the Federal Communications Commission (FCC) is authorized to enforce its August 2005 policy statement [3 pages in PDF] regarding network neutrality through case by case adjudicatory proceedings. At the full Committee mark up on April 26 Rep. Ed Markey (D-MA), Rep. Rick Boucher (D-VA), Rep. Anna Eshoo (D-CA), and Rep. Jay Inslee (D-WA) offered an amendment [5 pages in PDF] that would have imposed a broader network neutrality mandate. It failed on a roll call vote of 22-34.

The nine Democrats commented that "That policy statement, however, is a broadly-worded, imprecise statement of ``feel-good´´ rhetoric intended to guide future agency decision-making but not, as the FCC Chairman indicated, to result in any enforceable protections or specific behavior requirements. It was not adopted subject to the thoroughness of the Administrative Procedures Act's (APA) notice-and-comment process. It was not adopted with any notion of enforcement attached to it. In essence, the COPE Act requires the FCC to enforce something that is of highly dubious enforceability."

They argued that the Markey amendment "preserved the Internet as we today know it. It told broadband behemoths to keep their hands off the Net. And without its inclusion, the COPE Act blesses the broadband designs of a small handful of large corporations over the aspirations of thousands of smaller companies, entrepreneurs, innovators, and individual citizens. The network neutrality amendment must be added to this bill."

The nine who joined in the statement are Rep. John Dingell (D-MI), Rep. Henry Waxman (D-CA), Rep. Ed Markey (D-MA), Rep. Anna Eshoo (D-CA), Rep. Lois Capps (D-CA), Rep. Michael Doyle (D-PA), Rep. Jan Schakowsky (D-IL), Rep. Hilda Solis (D-CA), and Rep. Tammy Baldwin (D-WI).

Rep. Markey Introduces Network Neutrality Bill

5/2. Rep. Ed Markey (D-MA) Rep. Rick Boucher (D-VA), Rep. Anna Eshoo (D-CA), and Rep. Jay Inslee (D-WA) introduced HR 5273 [11 pages in PDF], the "Network Neutrality Act of 2006", a bill to impose a network neutrality mandate on broadband network providers.

The same four offered a network neutrality amendment [4 pages in PDF] at the April 5 Subcommittee mark up of the COPE Act, and a different amendment [5 pages in PDF] at the April 26 full Committee mark up. Both failed. The language of the just introduced bill is similar to, but greatly expands upon the earlier proposed amendments.

Rep. Ed MarkeyRep. Markey (at left) wrote in a statement that "The corrosion of historic policies of nondiscrimination by the imposition of bottlenecks by broadband network owners endanger economic growth, innovation, job creation, and First Amendment freedom of expression on such networks. Broadband network owners should not be able to determine who can and who cannot offer services over broadband networks or over the Internet. The detrimental effect to the digital economy would be quite severe if such conduct were permitted and became widespread." See, extended remarks published in the Congressional Record, May 2, 2006, at Pages E680-1.

He summarized his bill as follows: "This network neutrality bill has essentially three parts. The first part articulates overall broadband and network neutrality goals for the country, and spells out exactly what network neutrality means and puts it into the statute so that it will possess the force of law. The second part embodies reasonable exceptions to the general rules, such as to route emergency communications or offer consumer protection features, such as spam blocking technology. And the final part of the bill features an expedited complaint process to deal with grievances and violations within thirty days."

The bill contains detailed Congressional findings, a detailed collection of policy statements, and a network neutrality mandate. The mandate imposes restrictions and duties upon broadband network providers, provides exceptions, requires an FCC rulemaking proceeding to promulgate implementing regulations, and provides for FCC enforcement.

The bill provides that each broadband network provider has the eight duties. They must

  "(1) enable users to utilize their broadband service to access all lawful content, applications, and services available over broadband networks, including the Internet;
  (2) not block, impair, degrade, discriminate against, or interfere with the ability of any person to utilize their broadband service to -- (A) access, use, send, receive, or offer lawful content, applications, or services over broadband networks, including the Internet; or (B) attach any device to the provider’s network and utilize such device in connection with broadband service, provided that any such device does not physically damage, or materially degrade other subscribers’ use of, the network; (3) clearly and conspicuously disclose to users, in plain language, accurate information about the speed, nature, and limitations of their broadband service;
  (4) offer, upon reasonable request to any person, a broadband service for use by such person to offer or access unaffiliated content, applications, and services;
  (5) not discriminate in favor of itself in the allocation, use, or quality of broadband services or interconnection with other broadband networks;
  (6) offer a service such that content, applications, or service providers can offer unaffiliated content, applications, or services in a manner that is at least equal to the speed and quality of service that the operator’s content, applications, or service is accessed and offered, and without interference or surcharges on the basis of such content, applications, or services;
  (7) if the broadband network provider prioritizes or offers enhanced quality of service to data of a particular type, prioritize or offer enhanced quality of service to all data of that type (regardless of the origin of such data) without imposing a surcharge or other consideration for such prioritization or quality of service; and
  (8) not install network features, functions, or capabilities that thwart or frustrate compliance with the requirements or objectives of this section."

Gigi Sohn, head of the Public Knowledge, stated in a release that this bill "recognizes that the cable and telephone companies are threatening to take over the Internet, and that strong non-discrimination policies are needed to prevent them from limiting consumer choice and favoring their own content and services. At the same time, the bill preserves the rights of network operators to manage those networks, and maintains a range of choices for consumers."

See also,

People and Appointments

5/2. Sen. Ted Stevens (R-AK) announced several promotions on his Senate Commerce Committee (SCC) staff. Melanie Alvord was named Assistant Staff Director for Administration and Communications. She has been Communications Director since January of 2005, when Sen. Stevens became the Chairman. She is a long time staff assistant to Sen. Stevens. Aaron Saunders was named Communications Director, the Committee's primary press contact and spokesperson. He replaces Melanie Alvord in this position. He was previously Press Secretary, and before that, Deputy Communications Director. Mark Delich was promoted to Professional Staff Member for the full Committee. He will handle a technology, consumer affairs, and transportation security issues. Steve Wackowski was promoted from Staff Assistant to Research Assistant for the full Committee. He will work on issues handled by the Subcommittees on Disaster Prevention and Prediction, National Ocean Policy Study, Oceans and Fisheries, and Global Climate Change. Rebecca Hooks was named Nominations Clerk.

More News

5/2. On April 27, the Federal Communications Commission (FCC) World Radiocommunication Conference Advisory Committee (WRC-07 Advisory Committee) submitted its recommendations to the FCC. On May 2, 2006, the FCC released a notice [145 pages in PDF], with the recommendations attached. The FCC requests public comments. The deadline to submit comments is May 26, 2006. This proceeding is IB Docket No. 04-286.

5/2. Rep. Marion Berry (D-AR) introduced HR 5258, a bill to suspend temporarily the duty on certain plasma flat panel displays. It was referred to the House Ways and Means Committee.

5/2. Rep. Eliot Engel (D-NY) introduced HR 5264, a bill to provide consumers information about the broadcast television transition from an analog to a digital format. It was referred to the House Commerce Committee (HCC).

5/2. The U.S. Court of Appeals (9thCir) issued its opinion [5 pages in PDF] in Mattel v. Carter Bryant, a dispute involving intellectual property rights. However, the issue on appeal involved the effect of a non-indispensible intervenor upon the diversity jurisdiction of the federal court. Mattel (a Delaware corporation headquartered in California) filed a complaint in state court in California against Carter Bryant (a resident of Missouri) alleging breach of contract and various torts, all state law claims. Bryant removed the action to U.S. District Court, based upon diversity of citizenship. MGA Entertainment (also a California corporation) intervened to protect its intellectual property rights. The District Court held, and the Court of Appeals affirmed, that MGA is not an indispensible party, and hence, its intervention does not defeat diversity of citizenship. The Court wrote that "Intervention destroys diversity if the intervening party is indispensable". Mattel, which began the litigation by filing in state court, argued that MGA was an indispensible party. MGA argued it was not. The Court of Appeals quipped that "Mattel's solicitude for the rights of MGA appears to be driven by its desire to have the litigation proceed in a California court". This case is Mattel, Inc. v. Carter Bryant and MGA Entertainment, Inc., U.S. Court of Appeals for the 9th Circuit, App. Ct. No. 05-55696, an appeal from the U.S. District Court for the Central District of California, D.C. No. CV 04-09059 NMM/RNB.

Stevens Introduces Telecom Reform Bill

5/1. Sen. Ted Stevens (R-AK), the Chairman of the Senate Commerce Committee, introduced S 2686 [135 pages in PDF], the "Communications, Consumer's Choice, and Broadband Deployment Act of 2006".

See also, statement [5 pages in PDF] by Sen. Stevens, and Sen. Stevens' section by section summary [7 pages in PDF].

Sen. Ted StevensSen. Stevens (at right) said that this bill is "a working draft intended to stimulate discussion and is open for comments and suggestions for change." He also said that it would "spur innovation, encourage competition, and provide better service at a lower price for consumers."

The SCC issued a release that states that "The Committee will take up the bill during a two-step process. First, the Committee will hold two public hearings to consider the bill. Following this period of review, the Committee will hold an Executive Session after the Memorial Day recess to markup the legislation. Hearing dates and the Committee markup of the bill are to be determined."

This bill provides that IP enabled voice service providers are subject to universal service taxes, the interconnection provisions of 47 U.S.C. §§ 251 and 252, and to disability access regulation. It would further regulate state and local video franchising, but not provide for a national franchise.

It attempts to streamline the state and local franchising process for video services. However, it does not create a national franchise.

It regulates anticompetitive practices of MVPDs, and instructs the Federal Communications Commission (FCC) to revise and once again adopt it broadcast flag rule.

It permits public sector entities to provide broadband services, subject to non-discrimination principles, and a right of first refusal.

It requires the FCC to complete its broadcast white space rulemaking proceeding.

It contains further provisions regarding the transition to DTV.

It also permits the FCC to operate in greater secrecy.

It contains no network neutrality mandate. It contains almost nothing regarding electronic surveillance.

More on the House Commerce Committee Mark Up of the COPE Act

5/1. TLJ has prepared drafts of the various titles of the "Communications Opportunity, Promotion, and Enhancement Act of 2006", or COPE Act, that incorporate the amendments adopted at the mark up of April 26. See:

Interested groups continue to offer their comments on the mark up of the bill.

Walter McCormick, head of the U.S. Telecom Association, stated in a release that this mark up "brings consumers one step closer to having a real choice in video, allowing them to get the services they want from the companies they choose. We congratulate Chairman Barton, Chairman Upton and Congressman Rush and all those on the Committee who have worked so hard to further TV Freedom for the American consumer. This legislation will also help spur investment and innovation in communities across the nation. We look forward to favorable action by the full House of Representatives."

Earl Comstock, head of CompTel, stated in a release on April 26 that "It is unfortunate that members of the House Commerce Committee today capitulated to Bell company lobbying and took yet another step to turn the Internet into a private network controlled by the Bell and cable interests. By adopting legislation designed to speed Bell company entry into video while rejecting Net neutrality amendments that would have preserved competition in the voice and data markets, the Committee has done more harm than good."

Comstock added that "COMPTEL is pleased that the members of the House Judiciary Committee have expressed interest in reviewing competition issues raised in the Net neutrality debate. We look forward to continuing to work with all members of Congress and industry to ensure that the Internet remains the dynamic and innovative technological tool that consumers have come to expect and deserve."

Comstock also testified before a House Judiciary Committee hearing on April 25, 2006. See, prepared testimony [30 pages in PDF], and story titled "House Judiciary Committee Holds Hearing on Network Neutrality" in TLJ Daily E-Mail Alert No. 1,358, April 26, 2006.

Dorothy Coleman of the National Association of Manufacturers (NAM) stated in a release that "Video is an important driver for broadband deployment ... By removing redundant regulatory barriers, the Communications Opportunity, Promotion, and Enhancement Act would expedite investment in new broadband network capable of carrying a wide range of digital communications services. ... The NAM also was pleased to see that the Committee declined to adopt new build-out requirements and to change the original meaning of net neutrality".

The Public Knowledge (PK) wrote in its bimonthly newsletter named "In the Know", that "The markup showed how partisan the issue has become. In the past, telecom issues usually split the Committee by industry -- some were with local telephone companies, some with what was then the long-distance and competitive industry. That's changed. The House Democratic leadership has entered the fray, with Rep. Nancy Pelosi, the Democratic leader, starting her own ``citizen petition´´ for Net Neutrality. In the committee markup on important amendments, Republicans stuck together to defeat most of the measures proposed by Democrats."

In addition, Gigi Sohn, head of PK, stated in a release, regarding the Markey amendment (No. 19) on network neutrality, that "we are disappointed but not surprised that the Committee voted to turn over the future of the Internet to the telephone and cable industry. Neither of those two sectors contributed to the creative development of the Internet, and neither is known for innovation. They are known for their desire to control what goes over their networks."

She added that "We hope the House Telecom and Antitrust Task Force will continue its diligent examination of the competitive issues surrounding control of Internet content and traffic. We look forward as well in the Senate to due consideration of the legislation proposed by Sen. Olympia Snowe and Sen. Byron Dorgan, which would put in place effective enforceable rules to preserve the openness of the Internet without interfering with free markets.”

Ben Scott, of the Free Press and the Save the Internet Coalition, stated in a release that the rejection of the Markey network neutrality amendment "ignores a groundswell of popular support for Internet freedom ... We hope that the full House will resist the big telecom companies and reject the bill. But we look to the Senate to restore meaningful protections for net neutrality and ensure that the Internet remains open to unlimited economic innovation, civic involvement and free speech."

Section by Section Summary of Sen. Stevens' Telecom Reform Bill

5/1. The following is a section by section summary of S 2686 [135 pages in PDF], the "Communications, Consumer's Choice, and Broadband Deployment Act of 2006", introduced by Sen. Ted Stevens (R-AK) on May 1, 2006. See, full story.

People and Appointments

5/1. President Bush nominated John Kneuer to be Assistant Secretary of Commerce for Communications and Information. That is, Bush picked Kneuer to be the head of the National Telecommunications and Information Administration (NTIA). He has been the acting head since Mike Gallagher's departure. Kneuer previous worked for the law firm of DLA Piper Rudnick. See, White House release and release.

5/1. Tiffany Moore was named Assistant U.S. Trade Representative (USTR) for Intergovernmental Affairs and Public Liaison. She previously worked for the Kellogg Company. Before that, she worked for Rep. Fred Upton (R-MI). See, USTR release.

5/1. The Senate confirmed Michael Ryan Barrett to be a Judge of the U.S. District Court for the Southern District of Ohio by a vote of 90-0. See, Roll Call No. 102, and Congressional Record, May 1, 2006, at Page S3849.

More News

5/1. The Supreme Court denied certiorari in Charter Communications v. Broadcast Innovation, a patent case involving a distributed database system with applicability to data broadcasting and data casting communications media. See, Order List [10 pages in PDF] at page 2, and Supreme Court docket. This case is Charter Communications, Inc. v. Broadcast Innovation, et al., Sup. Ct. No. 05-1162, a petition for writ of certiorari to the U.S. Court of Appeals for the Federal Circuit, App. Ct. No. 05-1008. The Court of Appeals heard an appeal from the U.S. District Court for the District of Colorado, Judge Alan Johnson presiding.

5/1. The Center for Democracy and Technology (CDT) released a memorandum [4 pages in PDF] titled "Mandatory Data Retention -- Invasive, Risky, Unnecessary, Ineffective". It responds to, and criticizes, proposals by Attorney General Alberto Gonzales and Rep. Diana DeGette (D-CO) to require ISPs, IP communications services providers, and other IP based service providers to surveil their users, and store communications and records for future government retrieval. The CDT wrote that "These proposals raise serious concerns about privacy, security, cost, and effectiveness."

5/1. The Government Accountability Office (GAO) released a report [29 pages in PDF] titled "Information Technology: Near--Term Effort to Automate Paper-Based Immigration Files Needs Planning Improvements".

5/1. Rep. Joe Barton (R-TX) and others introduced HR 5252, a bill which has already been marked up by the House Commerce Committee (HCC). It was referred to the HCC.

Go to News from April 26-30, 2006.