|Oct. 13, 2000
8:00 AM ET.
Alert No. 41.
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Copyright 1998 - 2000 David Carney, dba Tech Law Journal. All rights
10/12. The FCC held a Commission
Meeting. It announced that it has taken action on three
proceeding regarding requiring the owners of apartment
building to provide access to their property to
telecommunications and Internet service providers. The FCC issued a press
release, but no order. The release states, among other things,
that "the FCC forbade telecommunications carriers in commercial
settings from entering into exclusive contracts with building
owners, including contracts that effectively restrict premises
owners or their agents from permitting access to other
telecommunications service providers." The order limits the
activity of service providers, rather than real estate owners, thus
averting a Fifth Amendment takings clause challenge from the real
estate industry. See, also statement
by Chairman Kennard. (WT Docket No. 99-217, CC Docket No. 96-98, and
CC Docket No. 88-57.)
10/12. The FCC allocated for
commercial wireless services 50 MHz of spectrum located in
the 3650-3700 MHz band. It can be used for both fixed and mobile
commercial wireless services, including broadband Internet access.
10/12. The FCC issued a notice
[PDF] requesting public comment on the merger of Deutsche Telekom
(DT) and VoiceStream
and Powertel. Comments are due by Nov. 13; oppositions and responses
are due by Nov. 27. (IB Docket 00-187) DT is currently 58% owned by
the German government. Sen.
Ernest Hollings (D-SC) has objected to the merger, and
introduced legislation any FCC license from being held by a company
that is 25% owned by a foreign government. See, S 2793.
10/12. The Senate passed bill which includes a provision to repeal
the federal excise tax on telephones, by a vote of 58 to 37.
It was attached to HR
4516, the FY 2001 appropriations bill for the Treasury Dept.,
Legislative Branch, and GSA.
10/12. The Dispute Settlement Body of the WTO
approved a one month extension in the deadline for the US to come
into compliance with its ruling that the US Foreign Sales
Corporations (FSC) tax regime constitutes an illegal export subsidy.
The US and EU had already agreed to this extension, and the WTO
decision was expected. The House has passed, and the Senate is
considering, replacement legislation (HR
4986). However, the EU will also assert that this constitutes an
illegal export subsidy. While the EU is challenging the FSC regime
to obtain a bargaining chip in negotiations over other trade
disputes regarding beef and bananas, if a settlement is not reached,
and the EU takes retaliatory measures, US high tech exporters, such
as Microsoft and Intel, which benefit significantly
from the FSC regime, would likely be targeted. See, WTO
10/12. The Dispute Settlement Body of the WTO adopted the panel and Appellate
Body reports that the Canadian Patent Act, which provides for a term
of 17 years from the date of issuance for certain older patents,
violates Canada's obligations under TRIPS. See, WTO
release. See also, Report
of the Appellate Body dated Sept. 18, and TLJ story of Sept. 19.
10/12. The USTR presented its
4th annual submission
on deregulation and competition policy to Japan. The report
addresses several e-commerce issues, including security, privacy,
carrier liability, e-government procurement, and Internet threats to
intellectual property. It also addresses telecom regulation in
Japan. The report recommends that Japan "Revise existing laws
and regulations that constrain the growth of e-commerce such as
requirements for face-to-face transactions, requirements for
paper-based documentation" and "Implement its digital
signature law in a manner that is flexible and market-based, and
also clearly respects the rights of parties to choose the method for
authenticating their electronic transaction." On intellectual
property, the report recommends that Japan:
• "Clarify that the Japanese copyright law prohibits
unauthorized 'temporary copies' as per the WIPO Copyright
• "Amend the copyright law to clarify that the personal use
exception does not apply in the digital environment"
• "Amend the Copyright Law to provide for statutory
• "Ensure, consistent with the WTO TRIPS agreement, that
business method patents, particularly relating to the Internet, are
protected in Japan." See also, USTR
release. The report is also available in PDF.
10/12. The USITC voted to
institute an investigation of certain HSP
soft modems. The investigation is based on a complaint filed by
PCTEL on Sept. 15, and
supplemented on Oct. 3, which alleges violations of § 337 of the
Tariff Act of 1930 in the importation into the US, and the sale
within the US, of HSP modems that infringe on PCTEL's patents. The
respondents are Smart
Link and ESS Technology. (Investigation No. 337-TA-439) The case
has been referred to ITC administrative law judge Debra Morriss.
release. PCTEL also filed a complaint in U.S. District Court (DMa)
against Smart Link on Aug. 10 alleging patent infringement.
Smart Link filed a counterclaim against PCTEL on Aug. 31 alleging
infringement of its patents.
See also, Smart Link's Aug. 15 release
and Aug. 28
release, and PCTEL's Aug.
10/12. Commerce Sec. Norman Mineta, NTIA
chief Greg Rohde, Rep. Edolphus
Towns (D-NY), and Rep.
Major Owens (D-NY) held a "digital divide" event in
the Longworth House Office Building. They addressed Internet access
at historically black colleges and universities. See, DOC
release. See also, NTIA's digital
divide web site.
10/12. The Recording Industry
Association of America (RIAA) announced that it has launched a
project to develop a standardized system for identifying digital
files of sound recordings. See, release.
10/12. Scour.com filed for
Chapter 11 bankuptcy in U.S. Bankruptcy Court (CDCa).
Scour, an Internet file sharing business, has been sued for copyright
infringement by the members of the MPAA and RIAA. See, complaint [PDF]
filed on July 20.
10/11. The U.S.
Court of Appeals (DCCir) issued an opinion
and order in RTNDA v. FCC,
which contains a writ
of mandamus directing the FCC "immediately
to repeal the personal attack and political editorial rules."
The Court was unimpressed with the FCC's Oct. 4 Order
[PDF] suspending its "political editorial" rules for 60
days. That order asked for broadcasters to submit information
regarding the rules, but provided no basis for the rules. At issue
is the FCC's attempt to regulate the political speech of
broadcasters. The rules require broadcasters to give away free air
time if they make endorsements or personal attacks. Broadcasters
challenge its constitutionality. On Aug. 3, 1999, the Court
patiently issued an Opinion
in which it stated that "Without a clear explanation for the
rules, the court is not in a position to review whether they
continue to serve the public interest, and whether they burden First
Amendment interests too severely. ... Accordingly, rather than
enjoining enforcement of existing rules that the FCC might be able
to justify, we must remand the case for the FCC to further explain
its decision not to repeal or modify them." The Court
impatiently wrote on Oct. 11 that "its remand order for
expeditious action was ignored." The Court determined that the
FCC was merely postponing compliance with the Court's order, while
keeping the rules in effect. The Court used the words
"folly" and "incredibly" to describe the FCC's
Oct. 4 Order. This proceeding began in 1980.
10/12. Commissioner Gloria
Tristani, who supports the FCC's "political editorial"
rules, is not giving up. She called for a new rule making
proceeding. She released a statement
saying that she is "saddened" by the Oct. 11 Court
decision in RTNDA v. FCC.
She also argued that "Whether the rules properly balance the
competing constitutional rights at issue is a question left open by
today's ruling." (The Court wrote in its 1999 Opinion
that the rules "interfere with editorial judgment of
professional journalists and entangle the government in day- to- day
operations of the media," and "chill at least some speech,
and impose at least some burdens on activities at the heart of the
First Amendment.") FCC Chairman Kennard also released a statement;
he intends to "move forward promptly to study the public
interest obligations of broadcasters in the digital age, including
whether these rules should be reinstated." Commissioner Furchtgott-Roth, wrote that the
"political editorial rules" belong in a
"museum." He released a statement
saying that the "legitimate basis for such regulation, if it
ever existed, has long since evaporated" with the development
of competing media.
10/11. The Free Congress
Foundation sent a letter
to Congressional leaders opposing inclusion of the Children's
Internet Protection Act in HR 4577. The measure, which is backed by Sen. John McCain (R-AZ), Sen. Rick Santorum
(R-PA), Rep. Ernest Istook
(R-OK), Rep. Chip
Pickering (R-MS), and others, would require that school and
libraries that receive federal funds for Internet access to install porn
filtering software. See also, Sept. 28 letter
from the CDT.
10/10. The U.S. Court of Appeals
issued its opinion
[exe - MS Word] in On-Line Careline v. America Online, affirming two
opinions of the USPTO
Trademark Trial and Appeal Board (TTAB). On-Line CareLine, an ISP,
sought to register the mark ON-LINE TODAY. America Online (Compuserve)
previously registered the mark ONLINE TODAY. The court held that
there is a likelihood of confusion between the two marks.
Editor's Note: This column includes all News Briefs added to
Tech Law Journal since the last Daily E-Mail Alert. The dates
indicate when the event occurred, not the date of posting to Tech
to Japan re competition, e-commerce, telecom regulation, and other
issues, 10/12 (HTML, USTR).
and order in RTNDA v. FCC which contains a writ of
mandamus directing the FCC "immediately to repeal the personal
attack and political editorial rules," 10/11 (TXT, USCA).
to Members of Congress opposing porn filtering legislation, 10/11
re ONLINE TODAY trademark, 10/10 (EXE/Word, USCA).
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"Where the Internet is concerned, government should deal
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private-sector initiatives can flourish and transactions can take
USTR Submission to Japan