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Tech Law Journal
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Oct. 16, 2000
8:00 AM ET.
Alert No. 42.

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News Briefs

10/13. The BXA published changes to its Export Administration Regulations (EARs) for high performance computers (HPCs) in the Federal Register. The new regulations provide that HPCs with a composite theoretical performance (CTP) of up to 45,000 million theoretical operations per second (MTOPS) can be exported to Computer Tier 2 countries under License Exception CTP, and HPCs with a CTP up to 28,000 MTOPS can be exported Computer Tier 3 destinations under License Exception CTP. The civil-military distinction for computer Tier 3 end- users and end-uses is removed. Effective February 26, 2001, this rule also raises the advance notification level for HPC exports to Computer Tier 3 countries to 28,000 MTOPS. These new regulations took effect on October 13. See, Federal Register, at Vol. 65, No. 1999, pages 60852-60857.
10/13. Bill Clinton issued a Memorandum for the Heads of Executive Departments and Agencies regarding Third Generation (3G) wireless technology. "Neither the first nor the second generation of wireless technologies were designed for multi-media services, such as the Internet. Third generation wireless technologies will bring broadband to hand-held devices," wrote Clinton. He continued that "radio spectrum must be made available for this new use". To this end, "Federal Government agencies and the private sector must work together to determine what spectrum could be made available for third generation wireless systems ... by July 2001". He also encouraged the FCC "to initiate a rule-making proceeding". See also, statement by Clinton, and statements by Greg Rohde (NTIA), Linton Wells (Defense Dept.), Martin Baily (CEA), Susan Ness (D-FCC), and Bill Kennard (D-FCC). In addition, Clinton's Council of Economic Advisors released a report [PDF] titled "The Economic Impact of Third-Generation Wireless."
10/13. FTC Chairman Robert Pitofsky spoke at the National Association of Manufacturers regarding antitrust regulation and business to business (B2B) ventures. He praised B2Bs for their potential to increase market efficiencies. However, he cautioned that the FTC would enforce the antitrust laws if any B2Bs are used to "facilitate price coordination" or abuse their market power. He added the policy of the FTC is to "protect the marketplace, and don't undermine the incentives to innovate." He concluded that the argument "We are high tech. The antitrust laws do not apply to us" does not fly at the FTC.
10/13. Justin Lilley, the outgoing Telecom Counsel for the House Commerce Committee (HCC), has been named Vice President, Government Relations, for News Corporation. For years Lilley has sat to the right of Rep. Billy Tauzin (R-LA), Chairman of the House Telecom Subcommittee, at hearings and markups regarding major telecom and e-commerce bills. Lilley previously worked for the law office of Kellogg Huber. He joined the minority staff of the HCC in 1988. Recently, he worked on the Satellite Home Viewer Improvements Act, the Digital Millennium Copyright Act (DMCA), and the Electronic Signatures in Global and National Commerce Act (ESIGN). He also worked on HR 1858, the HCC's bill to weaken intellectual property rights in databases (which passed the HCC in Aug. 1999, but went no further). Rep. Tom Bliley (R-VA), Chairman of the HCC, is retiring at the end of the 106th Congress. Fox Corp. is involved in motion pictures and TV programming; TV broadcasting, satellite, and cable; publication of newspapers, magazines, and books; and Internet content. Its major properties include Fox Broadcasting, Fox News, Fox Interactive, Twentieth Century Fox, BSkyB, London Times, London Sun, New York Post, Harper Collins, and the LA Dodgers. Rupert Murdoch and his family own about 30% of News Corp.
10/13. Bill Clinton announced his intent to nominate Gregory Frazier as the USTR Special Trade Negotiator for Agriculture and Food Policy. Agriculture trade issues are sometimes intertwined with other trade issues that affect high tech industries. See, release.
10/13. The ICANN published a statement regarding the status of TLD applications. The update states that ICANN is in the process of posting the non-confidential portions of the applications. See, links to applications.
10/12. The House Commerce Committee issued its report on HR 3011, the Truth in Telephone Billing Act. See, House Report 106-978. The bill would add a new section 258(c) to the Communications Act requiring telecommunications carriers to identify on each subscriber's monthly statement: (1) the government program for which the carrier is being taxed, and the government entity imposing the tax; (2) the form in which the tax is assessed (e.g., per subscriber, per line, percentage of revenues); and (3) a separate line-item that identifies the dollar amount of the subscriber's bill that is being used by the carrier to pay for the government program. That is, phone companies would be required to tell their customers that they are being taxed to pay for the e-rate.
10/12. The FCC amended its rules regarding disclosure of non-public information by the FCC, to require that parties regulated or practicing before the FCC to return any documents improperly leaked by the FCC. "This Order would seem to help curtail the flood of document leaks," said Comm'r Powell (R) in a statement. "The regular pattern of leaks of pre-decisional written material is intolerable." In particular, the Washington Post has been reporting on confidential pre-decisional documents in the AOL Time Warner antitrust merger review proceeding. Chairman Kennard (D) also released a statement; he said that "While this requirement cannot prevent a leak, it will inform us that a leak has occurred." Comm'r Furchtgott-Roth (R) issued a dissent: "Rather than burdening the communications industry and bar with yet another layer of regulation, the Commission should first enforce the existing rule. After all, leaks spring from the inside, not the outside, of this building." See, FCC release.
10/11. ADE filed a complaint in U.S. District Court (DDel) against KLA-Tencor Corp. alleging patent infringement. ADE, which makes automated metrology and inspection systems for wafer manufacturing and the computer disk drive industry, alleges infringement of U.S. Patent No. 6,118,525, titled "Wafer Inspection System for Distinguishing Pits and Particles". See, ADE release.
10/11., based in Vancouver BC, announced that its has developed a peer to peer distributed networking system that allows users to "share" music. It provides for the streaming of music files in real time, rather than file copying, as is done by Napster. iNoise thus asserts that there is no copyright infringement. See, release.
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

BXA: changes to regulations re export of high performance computers, 10/13 (HTML, GPO).
Clinton: Memorandum re more spectrum for 3G wireless, 10/13 (HTML, WH).
CEA: Report on economic impact of 3G wireless, 10/13 (PDF, WH).
HCC: House Report 106-978 on HR 3011 re notifying phone customers of e-rate charges, 10/12 (HTML, HCC).
New and Updated Sections

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

"B2B is just one illustration of the general challenge that we face in dealing with high tech. And if I were to reduce that challenge to a sentence, it is: Protect the marketplace, and don't undermine the incentives for innovation. And that is what this is about. The incentives for innovation seems to be very important in this area. On the other hand, you don't want people taking advantage of the fact that -- claiming that 'Well. We're high tech. The antitrust laws don't apply to us.' That is not an acceptable defense."

FTC Chairman Robert Pitofsky on antitrust laws and B2B exchanges.


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