TLJ News from March 16-20, 2011

AT&T to Acquire T-Mobile USA

3/20. AT&T, Inc. and Deutsche Telekom AG announced in a release that they "have entered into a definitive agreement under which AT&T will acquire T-Mobile USA from Deutsche Telekom in a cash-and-stock transaction" and that this agreement "has been approved by the Boards of Directors of both companies".

This transaction is subject to numerous regulatory reviews, including antitrust merger reviews by the Department of Justice's (DOJ) Antitrust Division and the Federal Communications Commission (FCC).

The two companies stated that "AT&T commits to a significant expansion of robust 4G LTE (Long Term Evolution) deployment to 95 percent of the U.S. population to reach an additional 46.5 million Americans beyond current plans -- including rural communities and small towns". (Parentheses in original.)

This transaction would reduce the number of competitors in wireless voice and broadband access services. However, AT&T asserted that "The U.S. wireless industry is one of the most fiercely competitive markets in the world and will remain so after this deal. The U.S. is one of the few countries in the world where a large majority of consumers can choose from five or more wireless providers in their local market."

AT&T added that "This transaction quickly provides the spectrum and network efficiencies necessary for AT&T to address impending spectrum exhaust in key markets driven by the exponential growth in mobile broadband traffic on its network."

The DOJ and FCC have yet to attempt to block a wireless merger.

This transaction may enable the FCC to impose rules, which it may label "voluntary concessions", without a rulemaking proceeding, and which it may lack statutory authority to impose by rulemaking. Numerous companies, interest groups, and others will likely lobby the FCC for imposition of such concessions for their own benefit. Network neutrality rules may be one focus of attention.

However, any such rules or concessions would bind the merged entity, but not other competing wireless service providers. Thus, if this acquisition is consummated, and even if the Court of Appeals does not overturn the FCC's recently promulgated broadband internet access service (BIAS) rules, AT&T and Verizon could be subjected for years to disparate wireless regulatory regimes.

Congressional Reaction. Sen. John Rockefeller (D-WV), the Chairman of the Senate Commerce Committee (SCC), stated in a release that "With every passing day, wireless services are becoming more and more important to the way we communicate. So it is absolutely essential that both the Department of Justice and the FCC leave no stone unturned in determining what the impact of this combination is on the American people. Consumers across the country and at home in West Virginia want lower rates, competition and better coverage. As always in a transaction this large, the Commerce Committee will review the details of the acquisition."

Sen. Herb Kohl (D-WI), a senior member of the Senate Judiciary Committee (SJC), stated in a release that "Consumers have borne the brunt of the increasingly concentrated market for mobile phone service. The explosion of cell phone usage -- especially smart phones -- makes competition in this market more important than ever as a check on prices, consumer choice, and service. That's why the Antitrust Subcommittee will take a close look at what this loss of competition will mean for people who increasingly rely on wireless phone service to connect to friends, family and the Internet."

Rep. Anna Eshoo (D-CA), the ranking Democrat on the House Commerce Committee's (HCC) Subcommittee on Communications and Technology, stated in a release that "Competition is essential to promoting a vibrant wireless market, where consumers have a choice in the innovative services and devices available to them. As the FCC and DOJ begin their regulatory and antitrust review, I urge them to carefully examine the proposed transaction."

She added that "it is essential that we conduct oversight hearings and I look forward to leading that process."

Opposition Groups. The Public Knowledge's (PK) Gigi Sohn stated in a release that "The combination of the second-largest wireless carrier, AT&T, with the fourth-largest, T-Mobile is, as former FCC Chairman Reed Hundt once said, 'unthinkable.' We urge policymakers to think similarly today. The wireless market, now dominated by four big companies, would have only three at the top. We know the results of arrangements like this -- higher prices, fewer choices, less innovation."

She added that "The fact that AT&T and T-Mobile would even think of such a combination shows how desperately the U.S. needs both strong network neutrality rules and a competition policy that requires dominant broadband providers to make their networks available to competitors."

The Free Press's Derek Turner stated in a release, "Don't believe the hype: There is nothing about having less competition that will benefit wireless consumers. And if regulators approve this deal, they will further cement duopoly control over the wireless market by AT&T and Verizon."

Turner added that "A market this concentrated -- where the top four companies already control 90 percent of the business, and two of them want to merge -- means nothing but higher prices and fewer choices, as the newly engorged AT&T and Verizon exert even more control over the wireless Internet."

The Media Access Project's (MAP) Andrew Schwartzman stated in a release that "If approved, this deal would further increase costs and decrease choices for the public. Needless to say, it also presages a major confrontation at the Justice Department and the FCC. The FCC’s National Broadband Plan, issued last year, warned about the absence of sufficient competition in the wireless market. The possibility that three players would control nearly three-quarters of that market will surely trigger intense scrutiny by the agencies."

Apple Sues Amazon Over Use of Term Appstore

3/18. Apple filed a complaint in the U.S. District Court (NDCal) against Amazon alleging trademark infringement and unfair competition in connection with Amazon's use of the term "Appstore".

Amazon just launched a web section titled "Amazon Appstore for Android" at the URL of Amazon stated in a release that "Customers can now find, discover -- test! -- and buy Android apps using the convenient shopping experience that Amazon customers know and love."

Apple, maker of iPhone and iPad products, uses the term "App Store". See for example, Apple web page for iPhone "apps".

Apple filed an application with the U.S. Patent and Trademark Office (USPTO) on July 17, 2008, for a trademark registration for "App Store". See, application number 77525433. The USPTO's Trademark Electronic Search System (TESS) further states that "An opposition after publication is pending at the Trademark Trial and Appeal Board." The Trademark Trial and Appeal Board's (TTAB) Inquiry System states that Microsoft filed the opposition.

Julius Genachowski, Chairman of the Federal Communications Commission (FCC), gave a speech on March 22 in which he stated that "In 2009, people downloaded 300 million mobile apps. Last year, that number increased more than 16 times to 5 billion downloaded mobile apps. By 2015, the ``apps economy,´´ is projected to generate $38 billion in sales."

The word "app" is commonly used as a shorter form of "application software". For example, the Wikipedia entry for "Application software" states that "Application software, also known as an application or an ``app´´, is computer software designed to help the user to perform singular or multiple related specific tasks."

FCC Asserts in Amicus Brief that Its Declaratory Rulings Are Controlling Interpretations of Statutes

3/18. The Federal Communications Commission (FCC) filed an amicus curiae brief [22 pages in PDF] with the U.S. Court of Appeals (4thCir) in T-Mobile v. Fairfax County Board of Supervisors, App. Ct. No. 11-1060, an appeal from the U.S. District Court (EDVa) in a wireless facilities siting case.

The applicable statute is the ambiguously worded 47 U.S.C. § 332(c)(7). For example, it requires state and local governments to act upon requests "within a reasonable period of time".

The FCC adopted and released a Declaratory Ruling (DR) [42 pages in PDF] on November 18, 2009, that defines the time frames for state and local action on wireless facilities siting requests. It is FCC 09-99 in WT Docket No. 08-165. See also, story titled "FCC Adopts Declaratory Ruling Regarding State and Local Tower Siting Procedures" in TLJ Daily E-Mail Alert No. 2,017, November 23, 2009.

This DR remains in effect. However, there are petitions for review of that DR pending in the U.S. Court of Appeals (5thCir). See, City of Arlington and City of San Antonio v. FCC, App. Ct. Nos. 10-60039 and 10-60805.

The FCC wrote in its brief that it "cannot effectively implement the Communications Act -- and avoid inconsistent judicial interpretations of the same statutory provision -- unless the courts apply the agency's reasonable interpretation of the statute’s ambiguities. Consequently, the FCC has a strong interest in ensuring that when a court adjudicates a dispute involving an ambiguous provision of the Act, the court honors the agency's reasonable reading of the statute."

The FCC argued that its DR is an "authoritative interpretation" of section 332(c)(7), that "is controlling, even if the Court adopted a different reading of the statute in previous cases".

SEC Charges IBM with Violation of FCPA in Korea and PRC

3/18. The Securities and Exchange Commission (SEC) filed and settled a civil complaint [PDF] in the U.S. District Court (DC) against IBM alleging violation of Foreign Corrupt Practices Act (FCPA) in connection with payments by IBM subsidiaries to government officials in Korea and the People's Republic of China (PRC) to secure the sale of IBM products.

The complaint alleges that "IBM lacked sufficient internal controls designed to prevent or detect these violations of the FCPA". It further alleges that "IBM failed to make and keep books and records that accurately reflected the improper payments made in South Korea and China. Instead, these payments were recorded as legitimate business expenses."

15 U.S.C. § 78m provides, in part, in subsection (b)(2), that "Every issuer which has a class of securities registered pursuant to section 78l of this title and every issuer which is required to file reports pursuant to section 78o(d) of this title shall -- (A) make and keep books, records, and accounts, which, in reasonable detail, accurately and fairly reflect the transactions and dispositions of the assets of the issuer; (B) devise and maintain a system of internal accounting controls sufficient to provide reasonable assurances that ... transactions are executed in accordance with management’s general or specific authorization ..."

Simultaneously, IBM consented to the entry of judgment, under which it is enjoined from violating the FCPA, and required to pay a fine (nominally disgorgement, interest, and civil penalty) of $10 Million. IBM admitted no wrongdoing. See, SEC release.

This case is SEC v. International Business Machines Corporation, U.S. District Court for the District of Columbia, D.C. No. 1:11-cv-00563, Judge Richard Leon presiding.

More News

3/18. The Department of Justice (DOJ) filed a criminal complaint in the U.S. District Court (NDCal) against Samsung SDI Company Ltd. alleging price fixing and market allocation in the market for color display tubes (CDTs). The DOJ added in a release that Samsung "has agreed to plead guilty and to pay a $32 million criminal fine for its role in a global conspiracy to fix prices, reduce output and allocate market shares".

3/18. The U.S. District Court (NDTex) sentenced Jesse William McGraw to 110 months in prison following his plea of guilty to two counts of violation of 18 U.S.C. § 1030 in connection with his unauthorized access to, and transmission of malicious code to, a protected computer system. The Department of Justice (DOJ) stated in a release that he was contract security guard at the North Central Medical Plaza in Dallas, Texas, when he "gained physical access to more than 14 computers, including a nurses' station computer on the fifth floor and a heating, ventilation and air conditioning (HVAC) computer located in a locked room". The DOJ added that he "installed, or transmitted, a program to the computers that he accessed that allowed him, or anyone with his account name and password, to remotely access the computers. He also impaired the integrity of some of the computer systems by removing security features, e.g., uninstalling anti-virus programs, which made the computer systems and related network more vulnerable to attack. He also installed malicious codes (sometimes called ``bots´´) on most of the computers." (Parentheses in original.)

3/18. The U.S. District Court (SDNY) sentenced Sergey Aleynikov to serve 97 months in prison following his plea of guilty to theft of trade secrets and interstate transportation of stolen property in connection with his theft of proprietary computer code concerning a high-frequency trading platform from his former employer, Goldman Sachs, just before moving to new employment with Teza Technologies. The Department of Justice (DOJ) stated in a release that on his last day of work at Goldman Sachs, he "transferred substantial portions of the firm’s proprietary computer code for its trading platform to an outside computer server in Germany. He encrypted the files and transferred them over the Internet without informing Goldman Sachs. After transferring the files, he deleted the program he used to encrypt them and deleted his computer's ``bash history,´´ which records the most recent commands executed on his computer." The DOJ added that throughout his employment, he also "transferred thousands of computer code files related to the firm's proprietary trading program from the firm's computers to his home computers, without the knowledge or authorization of Goldman Sachs." The indictment also included a charge of unauthorized access to a protected computer system in violation of 18 U.S.C. § 1030. See, "More Tech Crimes" in TLJ Daily E-Mail Alert No. 2,048, February 22, 2010.

Senators Introduce Bill to Address FCC's Lack of Technical Expertise

3/17. Sen. Olympia Snowe (R-ME) and Sen. Mark Warner (D-VA) introduced S 611 [LOC | WW], the "FCC Technical Expertise Capacity Heightening Act" or the "FCC TECH Act".

It would amend 47 U.S.C. § 154, which currently authorizes each Commissioner of the Federal Communications Commission (FCC) to hire "three professional assistants".

It would provide that each Commissioner "may also appoint an electrical engineer or computer scientist to provide the commissioner technical consultation when appropriate and to interface with the Office of Engineering and Technology, Commission Bureaus, and other technical staff of the Commission for additional technical input and resources, provided that such engineer or scientist holds an undergraduate or graduate degree from an institution of higher education in their respective field of expertise".

The bill would also require a study to "evaluate the current staffing levels and skill sets of technical personnel at the Commission to determine if such staffing levels and skill sets are aligned with the current and future needs of the Commission, as well as with current and future issues that come or may come under the jurisdiction of the Commission and shall include a recommendation on the appropriate number or percentage of technical personnel that should constitute the Commission workforce".

Moreover, while the Congress often directs the FCC to conduct studies itself, this bill would require the FCC to outsource this study to the National Academy of Sciences (NAS). The NAS is a body of scientists, and might be expected to conclude that the FCC needs more persons with scientific and technical expertise, rather than legal expertise.

The FCC is an agency run by lawyers. Were the FCC, or a legal group, such as the American Bar Association (ABA) or Federal Communications Bar Association (FCBA), to conduct the study mandated by this bill, one might expect the conclusion to be that the FCC should continue to be run by lawyers.

Sen. Snowe stated that "In 1948, the FCC had 720 engineers on staff; today, it has fewer than 270 -- an astonishing 63 percent reduction -- even though the FCC now must face more technical issues concerning the Internet, advanced wireless communications, commercial cable & satellite industries, and broadband. It should be noted that engineering staff currently only accounts for a dismally low 14 percent of the FCC's workforce--in 1948 that figure was more than 50 percent." See, Congressional Record, March 17, 2011, at Page S1832.

She added that "This legislation enhances technical resources at the FCC so it will be better equipped and more agile to address the ever-changing technical landscape from a regulatory perspective. If it isn't, our nation's technical leadership in this area will continue to erode and it will be even more difficult to lay the proper policy foundation necessary to meet future telecommunications needs."

Sen. Snowe sponsored a similar bill in 111th Congress, S 2881 [LOC | WW], the "FCC Commissioners' Technical Resource Enhancement Act". The Senate Commerce Committee (SCC) amended and approved the bill. The full Senate did not pass that bill. See, story titled "Senate Commerce Committee to Mark Up Bill to Give FCC Commissioners More Staff" in TLJ Daily E-Mail Alert No. 2,060, March 20, 2010.

The related bill in the House in the 111th Congress was HR 4809 [LOC | WW]. It was sponsored by Rep. Jerry McNerny (D-CA) who has a Ph.D. in mathematics, and worked in wind turbine engineering before his election to the Congress. Neither the House Commerce Committee (HCC), nor the full House, passed that bill.

The last economist to serve as a Commissioner was Harold Furchtgott-Roth. This bill does not address the FCC's lack of expertise in economic and competition analysis.

This bill was referred to the Senate Commerce Committee (SCC).

See, related story in this issue titled "Computer Scientist Advocates More Technical Competency at FCC".

Senate Judiciary Committee Continues to Consider Cameras and Mics in Courtrooms

3/17. The Senate Judiciary Committee (SJC) held an executive business meeting on March 17, 2011, at which it held over S 410 [LOC | WW], the "Sunshine in the Courtroom Act". This bill is again on the agenda for the meeting of March 31.

Sen. Charles Grassley (R-IA) and others introduced this bill on February 17. They have endeavored unsuccessfully for years to pass legislation that would enable trial and appellate court judges to allow cameras and microphones, and broadcasters and webcasters, into their courtrooms.

There were similar bills in the 111th Congress. See, S 657 [LOC | WW] and HR 3054 [LOC | WW], both titled the "Sunshine in the Courtroom Act of 2009". There were similar bills and in the 110th Congress. See, S 352 and HR 2128. There were similar bills in the 109th Congress. See, S 829 and HR 2422.

S 410 provides, in part, that "the presiding judge of an appellate court of the United States may, at the discretion of that judge, permit the photographing, electronic recording, broadcasting, or televising to the public of any court proceeding over which that judge presides".

It further provides that "the presiding judge of a district court of the United States may, at the discretion of that judge, permit the photographing, electronic recording, broadcasting, or televising to the public of any court proceeding over which that judge presides", but that "upon the request of any witness (other than a party) in a trial proceeding, the court shall order the face and voice of the witness to be disguised or otherwise obscured in such manner as to render the witness unrecognizable to the broadcast audience", and the "presiding judge shall not permit the photographing, electronic recording, broadcasting, or televising of any juror in a trial proceeding, or of the jury selection process." (Parentheses in original.)

The bill also provides that "There shall be no audio pickup or broadcast of conferences which occur in a court proceeding between attorneys and their clients, between co-counsel of a client, between adverse counsel, or between counsel and the presiding judge, if the conferences are not part of the official record of the proceedings."

Sen. Grassley stated on March 17 that "Allowing cameras in federal courtrooms is consistent with the Founders intent that trials be held in front of as many people as choose to attend. The First Amendment supports the notion that court proceedings be open to the public and, by extension, the news media and broadcast coverage. Openness is the heart of our government, and by providing sunshine into the courtroom, we open up the courts the same way CSPAN opened the Congress to the public."

He continued that "Our bill will help the public become better informed about the federal judiciary and the judicial process. The bill will increase public scrutiny of our federal judiciary and bring greater accountability to a system that includes Judges with lifetime tenure."

Rule 53, Federal Rules of Criminal Procedure, provides that "Except as otherwise provided by a statute or these rules, the court must not permit the taking of photographs in the courtroom during judicial proceedings or the broadcasting of judicial proceedings from the courtroom."

The Judicial Conference and the Administrative Office of the U.S. Courts have also been hostile to cameras in courtrooms, and the legislative proposals of Sen. Grassley and others.

See also, story titled "1st Circuit Rejects Webcasting of Civil Motions Hearings in District Court" in TLJ Daily E-Mail Alert No. 1,930, April 21, 2009.

FCC Releases Tentative Agenda for April 7 Meeting

3/17. The Federal Communications Commission (FCC) announced a tentative agenda for its event on April 7, 2011, titled "Open Meeting".

Access to Poles, ROW, and Wireless Sites. The FCC is scheduled to adopt an order regarding utility pole attachments, and a Notice of Inquiry (NOI) regarding access to rights of way (ROW) and wireless facility siting.

The FCC's tentative agenda state that the pole attachments order "reforms the Commission's access, rates, and enforcement rules for utility pole attachments, reducing barriers to deployment and availability of broadband and other wireline and wireless services, and promoting competition."

The National Cable & Telecommunications Association (NCTA) stated in a release that it supports the "efforts to establish appropriate and more uniform pole attachment rates that will provide much-needed regulatory certainty and will encourage providers to extend broadband networks to unserved communities."

Data Roaming. The FCC is also scheduled to adopt a Second Report and Order (2ndR&O) regarding data roaming.

Julius Genachowski, Chairman of the FCC, gave a speech on March 22 in which he stated that "Right now we're moving forward on broadband data roaming, with a vote scheduled at our next Commission meeting."

Julius GenachowskiGenachowski (at left) continued that "Voice roaming has promoted competition and has been an important spur to the dramatic uptake in mobile devices and investment in mobile networks. Consumers everywhere want the ability to roam anywhere, and they want it for all of their basic mobile services, whether it’s a voice call, an online check of out-of-town scores, or access to web job postings or health information. Many mobile providers need roaming arrangements to be competitive."

He added that "While we're still working through details of a data-roaming framework, I believe the core proposition is beyond dispute: healthy competition produces greater innovation and investment, lower prices, and better service."

The NCTA stated in a release that "We commend Chairman Genachowski for moving forward on the important issue of wireless data roaming. As new entrants look to expand consumer choice for wireless Internet access service using licensed spectrum, enforceable roaming rights enable competitors to offer a nationwide service and compete with incumbent providers."

This proceeding is WT Docket No. 05-265.

Other Agenda Items. The FCC is also scheduled to adopt a Declaratory Ruling (DR), Notice of Proposed Rulemaking (NPRM), and Order regarding signal boosters.

The FCC is also scheduled to adopt a R&O adopting rules regarding fraud and abuse in the provision of video relay service (VRS), and a Further NPRM that "proposes to require all VRS providers to obtain certification from the FCC under new, tighter certification procedures in order to receive compensation from the TRS Fund".

Finally, the FCC is scheduled to adopt a NOI regarding "existing reliability standards for communications networks, including broadband networks, and ways to further strengthen the reliability and continuity of communications networks to avoid disruptions of service during major emergencies, such as large-scale natural and man-made disasters".

House Passes Bill to Limit NPR Funding

3/17. Rep. Doug Lamborn (R-CO) introduced HR 1076 [LOC | WW], a bill to limit federal funding of National Public Radio (NPR), on March 15, 2011. The House passed this bill on March 17 by a vote of 228-192. See, Roll Call No. 192. Republicans voted 228-7. Democrats voted 0-185. The Senate has not passed this bill.

This bill provides in part that "No Federal funds may be made available ... for the acquisition of radio programs (including programs to be distributed or disseminated over the Internet) by or for the use of a radio broadcast station that is a public broadcast station ...". (Parentheses in original.)

Republicans who spoke in the House made the argument that taxpayers should not be subsidizing radio broadcasting, more than the argument that NPR leans to the left ideologically.

Rep. Eric Cantor (R-VA) spoke only about the needlessness of taxpayer subsidies.

Rep. Marsha Blackburn (R-TN) stated that this is "a bill to get the Federal Government -- and Federal taxpayers -- out of the business of buying radio programming they do not agree with."

She continued that this bill "does not defund public radio stations. They still may use Federal funding to operate their stations or to produce their own programming. Public radio stations may also continue to purchase programming from NPR or other sources, just not with Federal taxpayer dollars. Also, this bill has no impact ... on public television."

Rep. Lamborn offered this summary of the bill: "First, it prohibits public radio stations from using Federal funds to purchase programming. Current Federal law requires that about 26 percent of Federal grants to public radio stations be used for the production or acquisition of programming. Many stations use these restricted grants to purchase programming from NPR. These programming fees are the largest single source of NPR revenue at $56 million in fiscal year '10. Second, H.R. 1076 prohibits stations from using Federal funds to pay NPR dues: in fiscal year '10, over 400 member stations paid a total of $2.8 million in dues to NPR. Third, my bill prohibits direct Federal fundings of National Public Radio."

Rep. Henry Waxman (D-CA), the ranking Democrat on the House Commerce Committee (HCC), and other Democrats praise NPR. Rep. Waxman stated in the House that "This bill will cripple National Public Radio, public radio stations, and programming that is vital to over 27 million Americans. We are now voting to deny the public access to one of our Nation's most credible sources of news coverage."

The HCC's Democratic staff wrote a memorandum [PDF] that states that this bill "would have a significant impact on public radio stations across the country, eliminating all funding for NPR through the Corporation for Public Broadcasting (CPB). Hundreds of stations rely on CPB funding as a major source of funding, especially rural stations and minority stations."

The memorandum adds that "the legislation did not go through the normal Committee process, there have been no hearings, testimony, or expert review, and members have little information about its impact."

It also lists subsidies by Congressional district in 2009. Stations in the at large district for the state of Alaska received the largest total subsidy -- $5,033,526.00. Rep. Don Young (R-AK) did not vote on this bill.

On March 15, 2011, the House passed HJRes 48, a three week continuing resolution (CR) to fund the federal government through April 8. The Senate passed it on March 17. President Obama signed it on March 18. It is now Public Law No. 112-6.

Rep. Lamborn stated in a release on March 17 that HJRes 48 "contains $50 million in cuts for NPR's parent organization, the Corporation for Public Broadcasting (CPB). H.R. 1, the CR passed by the House last month, rescinded all federal funding for CPB through the end of this fiscal year. The Senate rejected that funding bill and has yet to offer an alternative." He added that he "will continue to push for the elimination of taxpayer dollars for the Corporation for Public Broadcasting through the annual appropriations process."

Obama Nominates Lisa Monaco to Be Head of DOJ's National Security Division

3/17. President Obama nominated Lisa Monaco Assistant Attorney General (AAG) in charge of the Department of Justice's (DOJ) National Security Division (NSD). See, White House news office release and release.

The NSD has responsibilities with respect to wiretaps, electronic surveillance, and accessing stored data, under the Foreign Intelligence Surveillance Act (FISA).

Monaco is currently Principal Associate Deputy Attorney General at the DOJ. She has worked at the DOJ or the DOJ's Federal Bureau of Investigation (FBI) since 1998. She was Counsel to former Attorney General Janet Reno. She worked for the U.S. Attorney's Office for the District of Columbia. And, she was Chief of Staff to FBI Director Robert Mueller.

If confirmed by the Senate, Monaco would replace David Kris, who announced his departure in January, after serving for two years.

Judicial Appointments

3/17. The Senate Judiciary Committee (SJC) approved the nomination of Edward Chen to be a Judge of the U.S. District Court (NDCal), by a partisan vote of 10-8. See, statement of Sen. Dianne Feinstein (D-CA) in support of Chen. Sen. Charles Grassley (R-IA), the ranking Republican on the SJC, predicted that "there will be considerable debate" on the Senate floor.

3/17. The Senate Judiciary Committee (SJC) held an executive business meeting for which numerous judicial nominees were on the agenda. The nomination of Caitlin Halligan (currently General Counsel in the New York County District Attorney's Office) to be a Judge of the U.S. Court of Appeals (DCCir) was not on the agenda. However, Sen. Charles Grassley (R-IA), the ranking Republican on the SJC, spoke about her in the context of Democrats' dilatory tactics that prevented two of former President Bush's nominees for the DC Circuit from coming to a vote in the Senate -- Miguel Estrada (now at Gibson Dunn) who was filibustered by Senate Democrats in Bush's first term, and Peter Keisler (now at Sidley Austin), who was effectively blocked by the Democratic controlled SJC in Bush's second term. Sen. Grassley said that "Keisler waited 918 days for some committee action, which never came". See also, story titled "Obama Nominates Caitlin Halligan for DC Circuit" in TLJ Daily E-Mail Alert No. 2,138, October 4, 2010.

3/17. The Senate Judiciary Committee (SJC) held an executive business meeting at which it held over consideration of the nominations of Gordon Liu to be a Judge of the U.S. Court of Appeals (9thCir), Kevin Sharp (USDC/MDTenn), Roy Dalton (USDC/MDFl), and Claire Cecchi (USDC/DNJ).

3/17. The Senate confirmed Amy Jackson to be a Judge of the U.S. District Court (DC) by a vote of 97-0. See, Roll Call No. 45, and Congressional Record, March 17, 2011, at Page S1878.

People and Appointments

3/17. The Senate Commerce Committee (SCC) approved the nomination of Philip Coyle to be an Associate Director of the Office of Science and Technology Policy (OSTP). See, Congressional Record, March 17, 2011, at Page S1826.

3/17. The Senate Judiciary Committee (SJC) approved the nomination of James Cole to be Deputy Attorney General, by a partisan vote of 10-8. See SJC release. Sen. Patrick Leahy (D-VT), the Chairman of the SJC, praised Cole, and summarized bipartisan support for his nomination. Sen. Charles Grassley (R-IA), the ranking Republican on the SJC, stated that "I have serious concerns with the nomination of James Cole" because of his "views on national security and terrorism". Sen. Grassley discussed a 2002 opinion piece written by Cole about the September 11, 2001 terrorist attacks, and concluded that "it appears that if given a choice of prosecuting high ranking terrorists in civilian courts or military commissions, Mr. Cole would likely favor civilian courts".

More News

3/17. The U.S. Patent and Trademark Office (USPTO) announced that it is providing special accommodations "to patent and trademark applicants and owners affected by the catastrophic events that took place in Japan on March 11, 2011." For example, for certain patent applications and reexamination proceedings pending in the USPTO as of March 11, with inventors or assignees in an affected area, and with unexpired deadlines to file certain replies, the USPTO will grant requests to reset the time for responding. See, USPTO release.

3/17. The Association of American Publishers (AAP) stated in a release that "Figures for the first month of the new year show that E-book net sales increased by 115.8% vs January 2010 (from $32.4 Million to $69.9M). Sales of Downloadable Audio Books also rose by 8.8% vs the previous year ($6.0M to $6.5M)."

3/17. The Government Accountability Office (GAO) released a report [19 pages in PDF] titled "Information Technology: Investment Oversight and Management Have Improved but Continued Attention Is Needed".

3/17. Microsoft, the Department of Justice's Antitrust Division, and state plaintiffs filed a periodic pleading titled "Joint Status Report on Microsoft's Compliance with the Final Judgments" with the U.S. District Court (DC). This action was filed nearly 13 years ago. It is U.S. v. Microsoft, U.S. District Court for the District of Columbia, D.C. No. 98-1232 (CKK).

House Subcommittee Holds Hearing on Cyber Security

3/16. The House Homeland Security Committee's (HHSC) Subcommittee on Cybersecurity, Infrastructure Protection and Security Technologies held a hearing titled "Examining the Cyber Threat to Critical Infrastructure and the American Economy".

Rep. Dan Lungren (R-CA), Chairman of the Subcommittee, stated that "most of these attacks are motivated by financial or intellectual property theft, disruption of commerce, or intelligence collection". He also referenced attacks by and on governments. He also said that last year "Google and twenty other major companies were the targets of highly sophisticated attack to steal their intellectual property and user accounts. This attack allegedly emanated from China."

Philip Reitinger, Deputy Under Secretary for the Department of Homeland Security's (DHS) National Protection and Programs Directorate (NPPD), wrote in his prepared testimony [PDF] of that "We currently cannot be certain that our information infrastructure will remain accessible and reliable during a time of crisis. We face persistent, unauthorized, and often unattributed intrusions into Federal Executive Branch civilian networks. These intruders span a spectrum of malicious actors, including nation states, terrorist networks, organized criminal groups, or individuals located here in the United States."

See also, prepared testimony [PDF] of Greg Wilshusen (GAO), prepared testimony [PDF] of James Lewis (Center for Strategic and International Studies), prepared testimony [PDF] of Phyllis Schneck (McAfee), and prepared testimony [PDF] of Mischel Kwon.

Judicial Appointments

3/16. President Obama nominated Mary Lewis to be a Judge of the U.S. District Court for the District of South Carolina. See, White House news office release and release.

3/16. President Obama nominated Jane Margaret Milazzo to be a Judge of the U.S. District Court for the Eastern District of Louisiana. See, White House news office release and release.

People and Appointments

3/16. The Senate Homeland Security and Governmental Affairs Committee (SHSGAC) approved the nomination of Heather Higginbottom to be Deputy Director of the Office of Management and Budget (OMB) by a vote of 6-4. See, SHSGAC release and Congressional Record, March 16, 2011, at Page S1750.

Go to News from March 11-15, 2011.