|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
|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,
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."
|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.
CEO Michael Brunner stated that the bill would ensure
"support for the deployment of advanced services to rural
|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."
of Inquiry re application of the mechanical and digital
phonorecord compulsory license to digital music services, 3/9
Advisory Opinion from FEC re E-SIGN, 3/6 (PDF, FEC).
re ultrawideband, 3/9 (PDF, NTIA).
a bill to remove the FCC's caps and limitations on universal
service support, 3/9 (HTML, LOC).
in Gleason v. Norwest Mortgage, a case involving a right of
first offer in the sale of a software company, 3/9 (TXT, USCA).
in Berthold Types v. Adobe, a Lanham Act case, 3/9 (TXT, USCA).
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.
|3/9. The U.S.
Court of Appeals (1stCir) issued its opinion
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
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
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
|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,
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.
|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.
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.
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.
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.
|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 email@example.com or firstname.lastname@example.org.
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.
|About Tech Law Journal
|Tech Law Journal is a free access web site
and e-mail alert that provides news, records, and analysis of
legislation, litigation, and regulation affecting the computer
and Internet industry. This e-mail service is offered free of
charge to anyone who requests it. Just provide TLJ an e-mail
Number of subscribers: 998.
Contact: 202-364-8882; E-mail.
P.O. Box 15186, Washington DC, 20003.
Copyright 1998 - 2001 David Carney, dba Tech Law Journal. All