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Tech Law Journal
Daily E-Mail Alert
Oct. 13, 2000
8:00 AM ET.
Alert No. 41.

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News Briefs

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. See, FCC release.
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 release.
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 Treaty"
• "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 damages"
• "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. See, USITC 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. 31 release.
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. filed for Chapter 11 bankuptcy in U.S. Bankruptcy Court (CDCa). See, release. 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 (FedCir) 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 Law Journal.
New Documents

USTR: submission to Japan re competition, e-commerce, telecom regulation, and other issues, 10/12 (HTML, USTR).
USCA: 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," 10/11 (TXT, USCA).
FCF: letter to Members of Congress opposing porn filtering legislation, 10/11 (HTML, CDT).
USCA: opinion re ONLINE TODAY trademark, 10/10 (EXE/Word, USCA).
New and Updated Sections

Calendar (updated daily).
News from Around the Web (updated daily).
Quote of the Day

"Where the Internet is concerned, government should deal narrowly with specific problems, while creating an environment where private-sector initiatives can flourish and transactions can take place securely."

USTR Submission to Japan

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