Tech Law Journal Daily E-Mail Alert
March 12, 2001, 8:00 AM ET, Alert No. 141.
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BXA
3/9. President Bush announced his intent to nominate James Jochum to be Assistant Secretary of Commerce for Export Administration.  He is presently a Senior Manager for Government Relations for Accenture. He was previously Majority Counsel for the Senate Banking Committee, and Trade Counsel and Legislative Director for Sen. Charles Grassley (R-IA). See, Bush release.
Spectrum
3/9. Friday, March 9 was the deadline to file reply comments with the FCC in response to its notice of proposed rulemaking (NPRM) regarding reallocation of spectrum for use by Third Generation (3G) wireless services. 3G is intended to provide broadband Internet access to portable devices. See, Federal Register, Jan. 23, 2001, Vol. 66, No. 15, Pages 7438 - 7443. ET Docket No. 00-258. See, for example, reply comments [in PDF] by the Wireless Communications Association, Qualcomm, National ITFS Association, and Verizon.
3/9. The National Telecommunications and Information Administration (NTIA) released a report [150 pages in PDF] titled "Assessment of Compatibility between Ultrawideband (UWB) Systems and Global Positioning Systems (GPS) Receivers."
Universal Service
3/9. Sen. Conrad Burns (R-MT) introduced S 500, the Universal Service Support Act, a bill to amend  254 of the Communications Act of 1934 to remove the FCC's caps and limitations on universal service support. Sen. Burns is Chairman of the Senate Communications Subcommittee, and a senior member of the full Commerce Committee, which have jurisdiction over the bill. Senators Max Baucus (D-MT), Tom Daschle (D-SD), Blanche Lincoln (D-AR), and Byron Dorgan (D-ND) are cosponsors. The USTA CEO Gary Lytle said that "Last year alone, the approximately 1,300 rural telephone companies affected by the caps were denied nearly $131 million in vital support for which these companies qualify." See, release. Similarly, NTCA CEO Michael Brunner stated that the bill would ensure "support for the deployment of advanced services to rural America."
FEC & E-SIGN
3/6. Morgan Stanley Dean Witter submitted a Request for Advisory Opinion [26 pages in PDF] to the Federal Election Commission requesting an opinion that it is permissible, pursuant to the E-SIGN Act, to use electronic signatures to authorize payroll deductions for the MSDW political action committee. It wrote: "Given the near-ubiquitous use of computer and Internet technology in the workplace today, MSDWPAC would like to solicit its restricted class members via the Internet and accept their payroll deduction authorizations in a form other than the traditional, written signature on a hard copy. Specifically, MSDWPAC intends to establish an Internet website which would enable its restricted class members to authorize payroll deductions via electronic signature. To ensure that only restricted class members have access to this website, it will be password protected."
New Documents
CO: Notice of Inquiry re application of the mechanical and digital phonorecord compulsory license to digital music services, 3/9 (HTML, CO).
MSDW: Request for Advisory Opinion from FEC re E-SIGN, 3/6 (PDF, FEC).
NTIA: report re ultrawideband, 3/9 (PDF, NTIA).
Burns: S 500, a bill to remove the FCC's caps and limitations on universal service support, 3/9 (HTML, LOC).
USCA: opinion in Gleason v. Norwest Mortgage, a case involving a right of first offer in the sale of a software company, 3/9 (TXT, USCA).
USCA: opinion in Berthold Types v. Adobe, a Lanham Act case, 3/9 (TXT, USCA).
Milberg: complaint against Oracle and Ellison alleging, 3/9 (PDF, Milberg).
Taxing Internet Sales
3/8. Sen. Byron Dorgan (D-ND) introduced S 512, the Internet Tax Moratorium and Equity Act, a bill authorizing states to adopt a uniform set of rules for collecting taxes on remote sales, including Internet sales. The bill would extend the existing moratorium on Internet access, multiple and discriminatory taxes through December 31, 2005. It would also encourage states and localities to adopt uniform definitions for goods and services, uniform procedures for the treatment of exempt purchasers, and uniform rules for attributing transactions to particular tax jurisdictions, as well as uniform audit procedures and a seller's option for a single audit. It would authorize states to enter into an Interstate Sales and Use Tax Compact through which member States would adopt this uniform system. Finally, it would prohibit states which have not adopted this uniform system from gaining certain authority extended under the bill. Sen. Dorgan stated that "we believe that our legislation strikes a proper balance between the interests of the Internet industry, State and local governments, local retailers and remote sellers."
Securities Class Action
3/9. An institutional investor filed a complaint [PDF] in U.S. District Court (NDCal) against Oracle and its CEO Larry Ellison alleging violation of federal securities laws. The plaintiff, who seeks class action status, is represented by the law firm of Milberg Weiss. The factual allegations contained in the complaint include making false statements, and insider trading by Ellison. The complaint states that Ellison "sold ... Oracle stock despite his possession of adverse information about Oracle's business which he knew had not been disclosed to the public." The single count complaint alleges violation of  10b of the Securities Exchange Act of 1934 and Rule 10b-5 thereunder. Oracle, based in Redwood Shores, California, provides database software and support services. Milberg Weiss specializes in bringing securities class action lawsuits against tech companies when their stock prices drop. It has also recently filed suits against AT&T, Broadcom, Covad, Deutsche Telekom, Gateway, Macromedia, MP3.com, Nortel, PSINet, VALinux and many other tech companies.
More News
3/9. The U.S. Court of Appeals (1stCir) issued its opinion in Gleason v. Norwest Mortgage, a case involving a "right of first offer" in the sale of a software company. Gleason founded a business that developed and sold computer software to search, store, and retrieve real estate listing information. He then sold it to Norwest, with a clause that provided that if Norwest decided to sell it within five years, it was required to first to offer it to Gleason. Norwest sold the business to a third party. Gleason sued. The District Court granted summary judgment to Norwest. The Appeals Court affirmed in part, reversed in part, and remanded.
3/9. The U.S. Court of Appeals (7thCir) issued its opinion in Berthold Types v. Adobe, a Lanham Act case in which Adobe substantially prevailed in the District Court. The Appeals Court opinion deals primarily with the issues of attorneys fees, the differences between Rules 12(b)(6) and 56, and Rule 41(a)(1)(i) voluntary dismissals. Also, Judge Easterbrook dressed down District Judge Bucklo for not understanding the FRCP and for sloppy case handling. Adobe and Berthold entered into a contract that gave Adobe a non-exclusive right to include Berthold's typefaces in the Adobe Type Library (ATL) in return for royalty payments, but which did not require Adobe to use Berthold typefaces. In 1999 Adobe stopped using Berthold typefaces in the ATL. Berthold filed a complaint against Adobe under various tenuous legal theories, including breach of contract and the Lanham Act. The District Court granted Adobe's Rule 12(b)(6) motion to dismiss some claims, without prejudice, but did so on the basis of contract language which was neither plead nor attached to the complaint. The District Court also denied, without explanation, Adobe's request for attorneys fees. Easterbrook wrote, "The district court's handling of this litigation leaves much to be desired." Held: motion to dismiss should have been treated as a Rule 56 motion for summary judgment, and granted with prejudice; Adobe is entitled to attorneys fees as the prevailing party; and one remaining claim is remanded.
3/6. President Bush sent to Congress a report titled 2001 Trade Policy Agenda and 2000 Annual Report of the President of the United States on the Trade Agreements Program. See, USTR release.
Quote of the Day
"Sales tax collection and federal and state income tax could be in the same boat, if sales tax collection is no longer necessary on Internet sales purely by virtue of the sale over the Internet. Why shouldn't an employee whose check is written on the Internet and transmitted directly to his bank account not owe any income tax? Both would be Internet tax loopholes--tax collection exemptions forced by an all-knowing federal government. ... It is very important we do not build electronic loopholes on the Internet ..."

Sen. Mike Enzi (R-WY), statement in Senate in support of S 512, the Internet Tax Moratorium and Equity Act, March 8.
Copyright Office NOI
3/9. The Copyright Office of the Library of Congress issued a Notice of Inquiry requesting public comments regarding the interpretation and application of the mechanical and digital phonorecord compulsory license to certain digital music services. See, 17 U.S.C. 115. Comments are due by April 23, 2001. Reply comments are due by May 23, 2001. See, Federal Register, March 9, 2001, Vol. 66, No. 47, at Pages 14099 - 14103.
People
3/8. Bill O'Neill joined the Washington DC office of the law firm of Latham & Watkins as a partner. He previously was a partner in the Washington DC office of Crowell & Moring, where he was chair of the corporate department. He has handled mergers, asset purchases, and other transactions in the telecommunications, aerospace, defense, and energy industries. He also represented Raytheon in the formation and initial capitalization of Exostar, an aerospace B2B exchange. See, release.
3/8. Peter Shields was elected to be the next President of the Federal Communications Bar Association. He is a partner in the communications and business law practice groups of the Washington DC office of the law firm of Wiley Rein & Fielding. He assumes office in July 2001. See, release.
3/8. Thomas White, Thomas Hicks, and others opened a Tysons Corner, Northern Virginia, office for the law firm of Wilmer Cutler & Pickering. See, release.
3/5. Daniel Mummery joined the Palo Alto office of the law firm of Cooley Godward as a partner. He previously worked in the New York City office of Milbank Tweed, where he directed the global technology transactions group. See, release.
2/28. Slade Smith joined the San Francisco office of the law firm of Townsend and Townsend and Crew. He joins the firm's Electronics & Software Practice Group, focusing on procurement and enforcement of patent rights covering high-technology inventions. He previously worked at Fliesler Dubb. See, release.
3/8. Steven Green, who was U.S. Ambassador to Singapore from November 1997 through March 1, 2001, has joined the board of directors of Asia Global Crossing. AGCX provides broadband data and voice communications to businesses and telecom carriers in Asia. It was formed in 1999 by Global Crossing, which is the majority shareholder of AGCX. Global Crossing is developing a global network of undersea fiber optic cable. See, release.
Today
Deadline to file reply comments with the FCC in its rule making proceeding (WT Docket No. 00-230) regarding removing some regulatory barriers to secondary markets in spectrum rights. See, notice in Federal Register, Dec. 26, 2000, Vol. 65, No. 248, at pages 81475 - 81486. See also, notice changing deadline from March 9 to March 12, Federal Register, January 29, 2001, Vol. 66, No. 19, page 8149. For more information, contact either Paul Murray or Donald Johnson, of the FCC's Wireless Telecom. Bureau, at 202-418-7240 or at pmurray@fcc.gov or djohnson@fcc.gov.
9:30 - 10:15 AM. FCC Acting General Counsel Jane Mago will participate on a panel, "The FCC Dialogue," at the Annual State Leadership Conf., sponsored by the National Assoc. of Broadcasters. Location: JW Marriott Hotel, Washington DC.
12:00 NOON. FTC Commissioner Mozelle Thompson will deliver the keynote address at the Web Enabled Government Conference. Location: Sheraton Premier Hotel, Tyson's Corner, Virginia.
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