TLJ News from May 26-31, 2006

FCC Denies Petition for Reconsideration of CBS's Breast Broadcast Fine

5/31. The Federal Communications Commission (FCC) announced and released its Order on Reconsideration [18 pages in PDF] that denies CBS's petition for reconsideration of the FCC's forfeiture order that fines CBS $550,000 for displaying a breast during a broadcast of a football game. See also, FCC release [PDF].

The FCC adopted, but did not announce or release, this item on May 4, 2006. It is FCC 06-68.

On March 15, 2006, the FCC released a forfeiture order [30 pages in PDF] that fines CBS $550,000 in connection with the exposure of the breast of a singer named Janet Jackson in a broadcast music performance within a program titled "Super Bowl XXXVIII". This order is FCC 06-19. See also, story titled "FCC Releases Indecency Orders" in TLJ Daily E-Mail Alert No. 1,332, March 20, 2006.

On April 14, 2006, CBS filed with the FCC a Petition for Reconsideration of Forfeiture Order. See also, story titled "CBS Challenges FCC's Indecency Actions" in TLJ Daily E-Mail Alert No. 1,351, April 17, 2006.

The just released order concludes that "we reaffirm our conclusion in the Forfeiture Order that ``the Super Bowl XXXVIII halftime show contained material that was graphic, explicit, pandering, titillating, and shocking and, in context and on balance, was patently offensive under contemporary community standards for the broadcast medium and thus indecent.´´"

Commissioner Jonathan Adelstein concurred in part and dissented in part. He wrote in a separate statement [PDF]. He wrote that "I continue to believe the Commission has erred in fining only CBS owned and operated stations, not all stations that broadcasted the indecent material."

People and Appointments

5/31. President Bush today named Raul Yanes to be Assistant to the President and Staff Secretary. He is currently General Counsel in the Office of Management and Budget. Before that, he was Senior Counselor to Attorney General Alberto Gonzales. Before that, he was an Associate Counsel to the President, where he worked for Gonzales. And before that he worked for the law firm of Davis Polk & Wardwell. See, White House release.

More News

5/31. The Antitrust Modernization Commission (AMC) published a notice in the Federal Register requesting public comments regarding antitrust criminal remedies. See, Federal Register, Federal Register, May 31, 2006, Vol. 71, No. 104, at Pages 30863-30864.

5/31. The Government Accountability Office (GAO) released a report [155 pages in PDF] regarding adoption of information technology at the Department of Homeland Security's (DHS) Customs and Border Protection. It is titled "Information Technology: Customs Has Made Progress on Automated Commercial Environment System, but It Faces Long-Standing Management Challenges and New Risks".

5/31. The Securities and Exchange Commission (SEC) institute, and simultaneously settled, an administrative cease and desist proceeding against Tribune Company for reporting inflated paid circulation data for two print newspapers. The SEC order [7 pages in PDF] states that "From at least January 2002 to March 2004, two Tribune newspapers, Newsday and Hoy, falsely inflated their paid circulation figures. As a consequence, Tribune reported inflated average paid circulation figures and erroneous circulation trends for these newspapers to the Commission and the investing public in its Forms 10-K for the years ended December 29, 2002, and December 28, 2003. The company also reported erroneous circulation trends based on the inflated paid circulation figures for these newspapers in its Forms 10-Q for the first quarter ended March 31, 2002, through the first quarter ended March 28, 2004." Linda Thomsen, Director of the SEC's Division of Enforcement, stated in a release that "Circulation figures are a key measure used by publishers and advertisers to establish advertising rates. Because publishers typically generate the majority of their revenues from advertising sales, they must ensure that the circulation figures they report to the public are accurate so as not to mislead investors about the profitability of their most significant business operation."

Supreme Court Denies Cert in Online Freedom of Speech Case

5/30. The Supreme Court denied certiorari in Yahoo v. La Ligue. See, Order List [8 pages in PDF] at page 2. This is a case regarding whether Yahoo can obtain from the U.S. District Court a declaratory judgment that a French court order censoring internet speech on Yahoo's servers in the U.S. violates the First Amendment.

The en banc panel of the Court of Appeals issued a short, two paragraph, per curiam opinion that, like the three judge panel, reversed the District Court's judgment in favor of Yahoo. Judges also wrote several opinions [99 pages in PDF]. This disposition was a defeat for internet service providers, internet speakers, and freedom of speech online.

This petition for writ of certiorari was filed, not by Yahoo, but by La Ligue, one of the French entities that originally sought censorship. Yahoo filed no opposition. See, Supreme Court docket.

For further TLJ coverage of this case, see:

This case is Yahoo, Inc. v. La Ligue Contre La Racisme et L'Antisemitisme and L'Union Des Etudiants Juifs de France, Sup. Ct. No. 05-1302, a petition for writ of certiorari to the U.S. Court of Appeals for the 9th Circuit. The Court of Appeals number is No. 01-17424. It heard an appeal from the U.S. District Court for the Northern District of California, D.C. No. CV-00-21275-JF.

Chris Cox Discusses Interactive Data

5/30. Securities and Exchange Commission (SEC) Chairman Chris Cox gave a speech titled "The Interactive Data Revolution: Improved Disclosure for Investors, Less Expensive Reporting for Companies" at the American Enterprise Institute (AEI) in Washington DC.

He stated that there is a "movement to electronic exchange of financial information that will be standardized across many technologies -- including personal financial software, corporate financial preparation software, and the Internet."

"We are still, today, relying on the open-cry pit system of the 1700s and the printed page of the Guttenberg press of the 15th century", said Cox. "And we want to allow companies to communicate with investors on a constant basis. At a time when we have 24-hour news -- and even 24-hour pizza delivery -- why are we still living by the 10-K and the 10-Q?"

He continued that "we are still talking about 10-Ks once a year and 10-Qs three times a year, when we live in a world of constant change, 24/7? Just as interactive data and the Internet can make the information within financial statements easier to extract and analyze, Internet technologies and Web services such as RSS and ATOM can get investors current financial information the moment it's filed. That is, of course, when they need it the most."

He elaborated that "As part of the XBRL voluntary program ... we are piloting the use of an RSS feed for all filings with XBRL documents. This will allow users to be notified of new filings and to have instant access to the data they contain."

The SEC is currently developing eXtensible Business Reporting Language (XBRL). However, the submission of filings by public companies in digital format with XBRL tags is voluntary. The success of the program will also depend on participation by publicly traded companies, and by software companies that develop the tools to analyze this data.

Cox stated in his speech that "PepsiCo and General Electric this month asked to join the SEC's XBRL Test Group". Also, the SEC issued a release on May 23, 2006, that states that only twenty companies are participating. It lists the twenty.

Most leading software companies are not participating. However, Microsoft and Infosys Technologies are two of the twenty. XM Satellite Radio Holdings is also participating.

Cox spoke at a half day conference. For hyperlinks to copies of the presentations of the other speakers, see the AEI's web page for this event.

People and Appointments

Henry Paulson5/30. John Snow announced his resignation as Secretary of the Treasury. President Bush nominated Henry Paulson (at left), the Chairman and CEO of Goldman Sachs Group, to replace him. See, White House release. President Bush stated that "He will help ensure that our trading partners play by the rules, respect intellectual property rights, and maintain flexible, market-based exchange rates for their currencies." See, transcript.

More News

5/30. The European Union's (EU) Court of Justice (COJ) issued its judgment in European Parliament v. Council of the European Union, annulling the 2004 agreement [7 pages in PDF] between the U.S. and the EU regarding providing airlines' passenger name record (PNR) data to the U.S. government. This annulment takes effect on September 30, 2006. See also, COJ release [PDF] explaining the judgment. This annuls the Council of the European Union's decision (No. 2004/496/EC) dated May 17, 2004, regarding the "Agreement between the European Community and the United States of America on the processing and transfer of PNR data by Air Carriers to the United States Department of Homeland Security, Bureau of Customs and Border Protection". It also annuls the European Commission's decision (No. 2004/535/EC) dated May 14, 2004 on the "adequate protection of personal data contained in the Passenger Name Record of air passengers transferred to the United States Bureau of Customs and Border Protection". The European Commission stated in a release that "The Commission will respect the Court's judgement and is currently analyzing its full implications. The Commission remains committed to the fight against terrorism while fully respecting fundamental human rights, such as the right to privacy."

More News

5/28. Ivan Basso won the Giro d'Italia (Tour of Italy bicycle race). His team is sponsored by Computer Sciences Corporation, an information technology services corporation based in El Segundo, California. See, CSC release. Basso will race in the Tour de France in July. He finished second last year to Lance Armstrong, who has retired from racing. Armstrong's team is sponsored by the Discovery Channel and Advanced Micro Devices (AMC), a microprocessor company based in Sunnyvale, California. Jan Ullrich, whose team is sponsored by T-Mobile, is another leading contender.

Bush, Cheney and Gonzales Discuss Terrorism and Surveillance

5/27. President Bush and Vice President Cheney gave speeches on May 27 and May 26 in which they discussed fighting terrorism inside the US.

Cheney discussed and defended the National Security Agency's (NSA) program that the New York Times disclosed late last year. See, Friday, December 16, 2005, story by James Risen and Eric Lichtblau titled "Bush Lets U.S. Spy on Callers Without Courts". (Web access now requires registration.)

Neither Bush nor Cheney discussed the NSA program that USA Today disclosed earlier this month. See, May 11, 2006, article by Leslie Cauley titled "NSA has massive database of Americans' phone calls". See also, story titled "Bush Responds to USA Today Story Regarding NSA Database of Phone Calls" in TLJ Daily E-Mail Alert No. 1,369, May 12, 2006.

Neither discussed mandating data retention by ISPs.

Bush Speech. On May 27, President Bush gave a speech to graduating cadets at the U.S. Military Academy at West Point, New York. He said that "the war on terror is an ideological struggle between tyranny and freedom", and that "We're still in the early stages of this struggle for freedom".

He also said that "We created the new Director of National Intelligence, which has led a broad restructuring of our nation's intelligence agencies for the threats of the 21st century. We have transformed the FBI into an agency whose primary focus is stopping terrorism, and reorganized the Department of Justice to help us meet this new threat. We passed the Patriot Act, which broke down barriers that prevented law enforcement and intelligence agencies from sharing vital information on terrorist threats."

Cheney Speech. On May 26 Vice President Cheney gave a speech to graduating midshipmen at the U.S. Naval Academy at Annapolis, Maryland. He defended the NSA's extrajudicial electronic surveillance program.

He said that "in the aftermath of 9/11 President Bush authorized the National Security Agency to intercept a certain category of terrorist-linked international communications. The purpose is very simple to state: If people inside the United States are communicating with al Qaeda, they are talking to the enemy -- and we need to know about it."

Cheney said that "The Terrorist Surveillance Program is highly classified and carefully limited. The program was improperly revealed to the news media, some of which now describe it as domestic surveillance. That is not the case. We are talking about international communications, one end of which we have reason to believe is related to al Qaeda or to terrorist networks. It's hard to think of any category of information that could be more important to the safety of the United States."

He continued that "The Terrorist Surveillance Program is fully consistent with the constitutional responsibilities and the legal authorities of the President. And the program is conducted in a manner that fully protects the civil liberties of the American people. The President has made clear -- the President has made clear from the outset, both publicly and privately, that our duty to uphold the law of the land admits no exceptions in wartime. As he has said, ``We are in a fight for our principles, and our first responsibility is to live by them.´´"

Cheney also said that "the entire program is reconsidered and reauthorized by the President himself every 45 days. He has reauthorized it more than 30 times since September 11th because our nation faces a continuing threat from al Qaeda and related organizations. Key members of Congress, from both political parties, have received more than a dozen briefings on the Terrorist Surveillance Program. The reason I know this is that I'm the one who presided over most of those briefings."

He argued that this program "is absolutely essential to the security of the United States. If you'll recall, the 9/11 Commission focused criticism on the nation's inability to uncover links between terrorists at home and terrorists overseas. The term that's used is ``connecting the dots´´ -- and the fact is that one small piece of data might very well make it possible to save thousands of lives. And the very important question today is whether or not we've learned all the lessons of September 11th."

Cheney elaborated that the terrorists' "preferred tactic" is "to slip into this country, blend in among the innocent, kill without mercy and without restraint. They have intelligence and counterintelligence operations of their own. They take their orders from overseas. They are using the most sophisticated communications technology they can get their hands on. Since 9/11 they have successfully carried out attacks in Casablanca, Jakarta, Mombassa, Bali, Riyadh, Baghdad, Istanbul, Madrid, London, Sharm al-Sheikh and elsewhere. Here in the U.S., we have not had another 9/11. But while the enemies that struck us may be weakened and fractured, they are still lethal and still desperately trying to hit us again."

He also said that the fact that there has not been another attack inside the US like the 9/11 attack "did not come about by accident. We've been protected by sensible policy decisions, by decisive action at home and abroad, and by round-the-clock efforts on the part of people in the armed services, law enforcement, intelligence, and homeland security." Finally, he said that the US is "Gathering the best information, and getting it into the hands of the war fighter".

Data Retention. Neither Bush nor Cheney discussed efforts by the Bush administration to impose a data retention mandate on internet service providers (ISPs).

On May 26, 2006, CNET published a story titled "Gonzales pressures ISPs on data retention". The story, written by Declan McCullagh, states that "U.S. Attorney General Alberto Gonzales and FBI Director Robert Mueller on Friday urged telecommunications officials to record their customers' Internet activities ...". It adds that "In a private meeting with industry representatives, Gonzales, Mueller and other senior members of the Justice Department said Internet service providers should retain subscriber information and network data for two years ...".

On about May 16, the House Judiciary Committee (HJC) announced that its Subcommittee on Crime would hold a hearing on May 23, 2006, on a yet to be introduced bill to be titled the "Internet Stopping Adults Facilitating the Exploitation of Today's Youth (SAFETY) Act of 2006." A HJC staff member told TLJ at that time that this bill would contain an data retention mandate for ISPs.

The HJC then cancelled this hearing. This bill has not yet been introduced. TLJ has requested, but not obtained, a copy of a draft of this bill from HJC staff. See also, story titled "House Judiciary Committee to Consider Data Retention Mandate" in TLJ Daily E-Mail Alert No. 1,372, May 17, 2006.

Alberto GonzalesOn April 20, Attorney General Alberto Gonzales (at right) gave a speech in which he advocated a data retention mandate for ISPs. See, story titled "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.

Also, on April 26, Rep. Diana DeGette (D-CO) offered and withdrew an amendment to mandate data retention at the House Commerce Committee's (HCC) mark up of the COPE Act. 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. See, story titled "House Commerce Committee Considers Data Retention Mandate" in TLJ Daily E-Mail Alert No. 1,365, May 8, 2006.

The COPE Act has not yet been considered by the full House. Neither Rep. DeGette, nor any other member of the House, has introduced her proposal as a stand alone bill.

California Court of Appeal Rules in Apple Subpoena Case

5/26. The Court of Appeal of the State of California, Sixth Judicial District, issued it opinion [69 pages in PDF] in O'Grady v. Superior Court, issuing a writ of mandate directing the Superior Court to grant O'Grady's motion for a protective order in Apple's suit to obtain the identities of his confidential sources.

Jason O'Grady published in his news web site about Apple information about a forthcoming Apple product. Apple sought to use the discovery process in a civil John Doe action to compel O'Grady to disclose his sources. The Superior Court denied O'Grady's motion for a protective order. Apple and other tech companies argued that the importance of protecting trade secrets, particularly at tech companies, and especially in light of the threats to trade secrets posed by e-mail and web sites, warrants allowing this sort of discovery. O'Grady and others advanced arguments related to freedom of speech online.

The Court of Appeal held that the Stored Communications Act's (SCA) ban on the disclosure by service providers of stored e-mail contains no implied exception for disclosure pursuant to civil subpoenas. The Court of Appeal also held that the California reporters' shield law, which protects any "publisher, editor, reporter, or other person connected with or employed upon a newspaper, magazine, or other periodical publication", applies to Jason O'Grady and his web site. The Court of Appeal also held that the discovery sought by Apple is barred by the conditional federal and state constitutional privilege against compulsory disclosure of confidential sources.

That is, O'Grady and the freedom of speech proponents prevailed over the trade secrets proponents. O'Grady gets his protective order. Apple does not get the records that would reveal O'Grady's sources. However, the Court of Appeal is an intermediate court of appeal. Apple may appeal to the Supreme Court of California.

Background. Jason O'Grady publishes a web site that contains news about Apple products. On November 19, 2004, he published a story about a forthcoming audio recording device to be sold by Apple. He published three further stories that provided more detail, including a drawing, likely prices, and a likely release date.

Apple wrote to O'Grady on December 8. The Court of Appeal opinion provides this quote: "The information in these posts and accompanying comments constitutes trade secrets that you have published without Apple[’]s authorization. ... It appears that you may be engaged in a practice of soliciting and disseminating such trade secrets. Apple also demands that you provide all information available to you regarding the sources for the posting and comments identified above. ..."

Trial Court. On December 13, 2004, Apple filed a complaint in Superior Court in Santa Clara County, California, against numerous unnamed defendants identified only as "John Doe" alleging misappropriation of trade secrets under California state law. O'Grady is not a defendant.

Apple applied to the Superior Court for the issuance of subpoenas for document. It sought from O'Grady, other publishers, and e-mail service providers, records regarding the sources of information for the news stories about Apple.

O'Grady and others filed a motion for a protective order. The Superior Court denied the motion for a protective order, on the ground that the publishers had involved themselves in the unlawful misappropriation of a trade secret.

Court of Appeal. O'Grady and others then filed with the Court of Appeal a petition for writ of mandate or prohibition to compel the trial court to set aside its denial of the motion for protective order. The Court of Appeal granted the petition, and directed the Superior Court to grant the motion for a protective order.

The Court of Appeal held that "(1) the subpoena to the email service provider cannot be enforced consistent with the plain terms of the federal Stored Communications Act (18 U.S.C. §§ 2701-2712); (2) any subpoenas seeking unpublished information from petitioners would be unenforceable through contempt proceedings in light of the California reporter’s shield (Cal. Const., art. I, § 2, subd (b); Evid. Code, § 1070); and (3) discovery of petitioners’ sources is also barred on this record by the conditional constitutional privilege against compulsory disclosure of confidential sources ..."

Stored Communications Act. The Court of Appeal first addressed the issues raised by the SCA. Since this is a state court construction of a federal statute, this part of the opinion is not binding precedent outside of California. However, the SCA is national in scope, and other courts might find the analysis of the California court persuasive.

18 U.S.C. § 2702 provides that "a person or entity providing an electronic communication service to the public shall not knowingly divulge to any person or entity the contents of a communication while in electronic storage by that service".

The Court of Appeal wrote that Apple cannot obtain stored e-mail from O'Grady's e-mail service provider pursuant to a civil subpoena because Section 2702(a) prohibits this, and Section 2702(b), which enumerates exceptions, contains no applicable exception.

Apple argued that Section 2702(b), which exempts the contents of communications disclosed "as may be necessarily incident to the rendition of the service or to the protection of the rights or property of the provider of that service", is applicable. Apple feebly argued that since noncompliance with a subpoena would expose the service provider to contempt or other sanctions, its property was at risk. The Court of Appeals was not impressed.

Apple also argued that 18 U.S.C. § 2707's language, which provides, in part, that "good faith reliance on ... a court warrant or order ... is a complete defense to any civil or criminal action brought under" the SCA, entitles it to obtain the records. However, the Court of Appeal held that this language merely provides the service provider an exemption from liability for good faith, but illegal disclosure. It does not make the disclosure legal.

The Court of Appeal also rejected, following a lengthy analysis, the argument that there is an implied exemption to the SCA for civil discovery.

California Reporter's Shield Law. The California constitution provides that "A publisher, editor, reporter, or other person connected with or employed upon a newspaper, magazine, or other periodical publication . . . shall not be adjudged in contempt . . . for refusing to disclose the source of any information procured while so connected or employed for publication in a newspaper, magazine or other periodical publication, or for refusing to disclose any unpublished information obtained or prepared in gathering, receiving or processing of information for communication to the public." There is a related provision in the California Evidence Code.

These are provisions of California law, applicable only in cases to which California law is applied.

First, Apple argued that O'Grady and the others could not assert the shield because they were not engaged in "legitimate journalism or news", because they were misappropriating trade secrets.

The Court of Appeal rejected this argument. It wrote that "The shield law is intended to protect the gathering and dissemination of news, and that is what petitioners did here. We can think of no workable test or principle that would distinguish ``legitimate´´ from ``illegitimate´´ news. Any attempt by courts to draw such a distinction would imperil a fundamental purpose of the First Amendment, which is to identify the best, most important, and most valuable ideas not by any sociological or economic formula, rule of law, or process of government, but through the rough and tumble competition of the memetic marketplace."

Second, Apple argued that O'Grady and the others could not assert the shield because they published verbatim information provided to them. The Court of Appeal rejected this argument. It wrote that "A reporter who uncovers newsworthy documents cannot rationally be denied the protection of the law because the publication for which he works chooses to publish facsimiles of the documents rather than editorial summaries. The shield exists not only to protect editors but equally if not more to protect newsgatherers."

The Court also elaborated on this principle in the context of online writing. "Digital communication and storage, especially when coupled with hypertext linking, make it possible to present readers with an unlimited amount of information in connection with a given subject, story, or report. The only real constraint now is time -- the publisher's and the reader's. From the reader’s perspective, the ideal presentation probably consists of a top-level summary with the ability to ``drill down´´ to source materials through hypertext links. The decision whether to take this approach, or to present original information at the top level of an article, is itself an occasion for editorial judgment. Courts ought not to cling too fiercely to traditional preconceptions, especially when they may operate to discourage the seemingly salutary practice of providing readers with source materials rather than subjecting them to the editors' own ``spin´´ on a story."

Apple next argued that O'Grady and the others could not assert the shield because they are merely individuals operating web sites. It argued that they are not covered because they are "not members of any professional community governed by ethical and professional standards". The Court of Appeal rejected this argument. It reasoned, based upon dictionary statements of the meanings of words, that the shield applies to "publishers", and O'Grady and the other were publishers.

Apple next argued that O'Grady and the others could not assert the shield because their publications did not fall within the meaning of "newspaper, magazine or other periodical publication". The Court of Appeal rejected this argument. It concluded that the web sites at issue could not be considered a "newspaper", but are a "magazine" or "other periodical publication".

Hence, the Court of Appeal concluded that O'Grady and the others "are entitled to the protection of the shield law, which precludes punishing as contempt a refusal by them to disclose unpublished information."

Constitutional Privilege. Finally, the Court of Appeal held that the discovery sought by Apple is barred by the conditional federal and state constitutional privilege against compulsory disclosure of confidential sources. The Court followed the test established in 1984 by the California Supreme Court in Mitchell v. Superior Court, which is reported at 37 Cal.3d 268.

Amicus Briefs. Several companies and groups filed amicus curiae briefs in support of Apple, including Genentech, Intel and the Business Software Alliance (BSA), and the Information Technology Industry Counsel (ITIC).

Intel and the BSA wrote that "all technology-oriented companies -- and ultimately consumers -- share a strong interest in vigorous enforcement of the trade secret laws, including discovery to determine who may have violated those laws."

They continued that "strong trade secret laws are vital to the health of California's high-technology businesses and to the economy of the nation as a whole. The types of trade secrets at issue here (information about unannounced future products) are among the most valuable and closely guarded of all. There is no public interest in having such trade secrets stolen and plastered on the Internet for competitors and others to see. If that occurs, victims must be entitled to use the courts for redress -- starting with discovery to determine who committed the theft. The protections of the Civil and Penal Codes must be available in practice as well as in name."

This case is Jason O'Grady v. Superior Court of Santa Clara County, Court of Appeal of the State of California, Sixth Judicial District, App. Ct. No. H028579, a petition for writ of mandate to the Santa Clara County Superior Court, Superior. Ct. No. CV032178.

People and Appointments

5/26. The Senate confirmed Robert McDowell to be a member of the Federal Communications Commission (FCC). See, Congressional Record, May 26, 2006, at Page S5400. See also, statement by Sen. Ted Stevens (R-AK), statement [PDF] by Kevin Martin, statement [PDF] by Michael Copps, and statement [PDF] by Jonathan Adelstein. The FCC now has five members, three Republicans and two Democrats.

Robert Portman5/26. The Senate confirmed Robert Portman (at right) to be Director of the Office of Management and Budget (OMB). See, Congressional Record, May 26, 2006, at Page S5400. See also, statement by President Bush. He was previously the U.S. Trade Representative (USTR).

Susan Schwab5/26. While the Senate confirmed numerous pending nominees on Friday, May 26, just before recessing for the Memorial Day District Work Period, it did not confirm Susan Schwab (at left) to be the U.S. Trade Representative (USTR). The Senate Finance Committee (SFC) approved her by a vote of 18-1 on May 22. Sen. Charles Grassley (R-IA), the Chairman of the SFC, stated in a release [PDF] on Friday, May 26, that "It’s too bad we were unable to confirm Ambassador Schwab as our next Trade Representative this week. We're at a critical point in the Doha Round negotiations in the World Trade Organization. We need Ambassador Schwab out there representing us in her full capacity as the President’s Trade Representative. There's no reason to play games with her nomination. Senators have had ample opportunity to question Ambassador Schwab and the Administration on China policy, and she and the Administration have answered the questions that have been posed to them. The senators have made their point. Delaying her confirmation doesn't add anything."

5/26. The Senate confirmed Raymond Orbach to be Under Secretary for Science at the Department of Energy. See, Congressional Record, May 26, 2006, at Page S5400. Orbach was previously Director of the DOE's Office of Science (OS). The DOE's OS includes the Argonne National Laboratory (ANL). While the ANL began as a nuclear science facility, it now also conducts basic research in mathematics, computer science, high performance computing, and software.

5/26. The Senate confirmed Daniel Sullivan to be Assistant Secretary of State (Economic and Business Affairs). See, Congressional Record, May 26, 2006, at Page S5400.

5/26. The Senate confirmed Susan Wigenton to be a Judge of the U.S. District Court for the District of New Jersey. See, Congressional Record, May 26, 2006, at Page S5400. Wigenton was previously a federal Magistrate Judge in Newark, New Jersey.

5/26. The Senate confirmed Ralph Basham to be the Commissioner of Customs at the Department of Homeland Security (DHS). See, Congressional Record, May 26, 2006, at Page S5400. See also, statement by Michael Chertoff.

5/26. The Senate confirmed David Norquist to be Chief Financial Officer of the Department of Homeland Security (DHS). See, Congressional Record, May 26, 2006, at Page S5400. See also, statement by Michael Chertoff.

5/26. Scott Charbo was named acting Under Secretary for Management at the Department of Homeland Security (DHS). He will also continue as Chief Information Officer.

Michael Hayden5/26. The Senate confirmed Gen. Michael Hayden (at right) to be Director of the Central Intelligence Agency (CIA) by a vote of 78-15. See, Roll Call No. 160. See also, statement by President Bush.

5/26. On May 25, the Senate approved a motion to invoke cloture on the nomination of Brett Kavanaugh to be a Judge of the U.S. Court of Appeals for the District of Columbia by a vote of 67-30. See, Roll Call No. 158. On May 26, the Senate confirmed Kavanaugh by a vote of 57-36. See, Roll Call No. 159. See also, statement by President Bush.

More News

5/26. Federal Communications Commission (FCC) Commissioner Deborah Tate gave a speech [6 pages in PDF] via videotape to the American Public Communications Council (APCC). She said that "payphones are still an important part of many people’s lives", noting both that millions of people have no phone service, and that others rely upon pay phones in emergencies. She also said that "the FCC needs to be prepared for the possibility of a flu pandemic", because many people would then work from home. "The ability to work from home is going to depend on the ability to of our communications networks to handle the increased load."

5/26. The Federal Communications Commission's (FCC) Consumer & Governmental Affairs Bureau (CGB)  issued a revised version [18 pages in PDF] of its quarterly report on consumer inquiries and complaints.

5/26. The Federal Communications Commission's (FCC) denied the Electronic Privacy Information Center's (EPIC) application for review of the Wireline Competition Bureau's (WCB) denial of the EPIC's requests for records, pursuant to the Freedom of Information Act (FOIA), regarding the FCC proceeding in which the FCC mandated that interconnected voice over internet protocol (VOIP) services comply with E911 rules. While the FCC decided to give 10 pages of records to the EPIC, it stated that the rest fall within the FOIA's deliberative process exemption. See, FCC's Memorandum Opinion and Order [4 pages in PDF]. This item is FCC 06-72. The FCC's VOIP E911 proceeding is WC Docket Nos. 04-36 and 05-196. The FOIA is codified at 5 U.S.C. § 552.

5/26. The U.S. Court of Appeals (DCCir) issued its opinion [16 pages in PDF] in AT&T v. FCC, a petition for review of a final order of the Federal Communications Commission (FCC) regarding ratemaking treatment of post-retirement benefits other than pensions, including health and life insurance for retirees. The Court of Appeals denied AT&T's petition. This case is App. Ct. No. 05-1171.

Go to News from May 21-25, 2006.