Tech Law Journal Daily E-Mail Alert
April 2, 2001, 8:00 AM ET, Alert No. 156.
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3/30. Reps. Billy Tauzin (R-LA), John Dingell (D-MI), Fred Upton (R-MI), and Ed Markey (D-MA) sent a letter to Commerce Sec. Donald Evans regarding Commerce Department's role in reviewing the recently announced renegotiation of a 1999 contract between VeriSign and the ICANN. The four, who are the Chairman and Ranking Members of the Commerce Committee and its Telecom Subcommittee, respectively, stated that they want "a competitive and transparent domain name system."
H1B Visas
3/30. The Immigration and Naturalization Service (INS) published a notice in the Federal Register that, effective April 13, 2001, the INS will only accept the December 18, 2000, version of Form I-129W, titled "H-1B Data Collection and Filing Fee Exemption." Prior editions of the form will not be accepted. H1B visas enable technology companies to hire aliens in positions for which there is a shortage of U.S. workers. See, Federal Register, March 30, 2001, Vol. 66, No. 62, at Page 17442.
3/30. European Commissioner Mario Monti gave a speech in Washington DC to the Institute for International Economics titled "EU-US Cooperation in the Control of International Mergers -- Recent Examples and Trends."
3/28. The FCC and the Department of Justice filed an amicus curiae brief with the U.S. Court of Appeals (11thCir) in support of Intermedia in Intermedia Communications v. BellSouth. Intermedia seeks to provide local phone service in regions served by BellSouth, and to do so, it interconnnects with BellSouth's telephone network. Intermedia filed a complaint in U.S. District Court (MDFl) against BellSouth. It alleged, among other things, that BellSouth's conduct constituted monopolization and attempted monopolization in violation of § 2 of the Sherman Act. The District Court dismissed the antitrust claims, stating that "most of the allegations that serve as a basis for the antitrust claims involve violations of the [Telecom Act] ..." and "violations of the [Telecom Act] do not automatically serve as a basis for an antitrust claim." The FCC and DOJ argue that the Telecom Act of 1996 does not create any implied antitrust immunity.
3/29. The U.S. District Court (SNDY) dismissed all pending federal privacy suits against Internet advertising company DoubleClick. Multiple federal privacy suits against DoubleClick were consolidated into one action, Healy v. DoubleClick. The plaintiffs alleged that DoubleClick's practice of using cookies in connection with online advertising violated three federal statutes: the Electronic Privacy Act, the Wiretap Act, and the Computer Fraud and Abuse Act. The District Court ruled that plaintiffs failed to state a claim. However, related actions in state courts are still pending against DoubleClick. The law firm of Morrison & Foerster represents DoubleClick in these proceedings. The law firm of Bernstein Litowitz is co-lead counsel for plaintiffs. See also, DoubleClick release.
3/27. Thomas Foley rejoined the Washington DC office of the law firm of Akin Gump as a partner. He was previously Ambassador to Japan. He also represented eastern Washington state in the House of Representatives from 1964 through 1994, culminating as Speaker.
New Documents
USTR: report on foreign trade barriers, 3/30 (HTML/PDF, USTR).
FCC: report re spectrum for 3G wireless services, 3/30 (PDF, FCC).
FCC: executive summary of 3G report, 3/30 (HTML, TLJ).
NTIA: report re spectrum for 3G wireless services, 3/30 (PDF, NTIA).
NTIA: executive summary of 3G report, 3/30 (HTML, TLJ).
Verizon: Emergency Petition to delay MDS and ITFS license modifications, 3/28 (PDF, FCC).
Tauzin: letter to Commerce Sec. Evans re ICANN and VeriSign, 3/30 (HTML, TLJ).
Unger: speech re market integrity and the Internet, 3/30 (HTML, SEC).
Monti: speech re EU US cooperation on antitrust matters, 3/30 (HTML, EU).
Moore: speech re entry of Russia into WTO, 3/30 (HTML, WTO).
DOJ/FCC: amicus curiae brief in Intermedia v. BellSouth, 3/28 (HTML, DOJ).
INS: notice re new H1B form, 3/30 (TXT, FedReg).
Greenwood: HR1215 IH, the Medical Information Protection and Research Enhancement Act of 2001, 3/27 (HTML, LibCong).
Morella: HR 1259 IH, the Computer Security Enhancement Act of 2001, 3/28 (HTML, LibCong).
3G Spectrum
3/30. The FCC and NTIA, which have spectrum allocation authority in the U.S., released reports which relate the difficulty of locating and reallocating spectrum for Third Generation (3G) wireless services. 3G is intended to bring broadband Internet access to portable devices, but needs spectrum allocated for its use. The reports address two spectrum bands identified by the International Telecommunication Union (ITU) 2000 World Radiocommunication Conference (WRC-2000) for possible 3G use. The reports address the 1710 to 1885 MHz band, which is currently being used by federal agencies, especially the Department of Defense, and which is subject to NTIA jurisdiction, and the 2500 to 2690 MHz band, which is currently being used for MMDS and ITFS, and which is subject to FCC jurisdiction. The reports detail incumbent users and their uses, and technical difficulties associated with sharing and segmenting spectrum, and the difficulties and costs of relocating incumbent users.
The FCC released its report [101 pages in PDF] titled "Final Report: March 30, 2001: Spectrum Study of the 2500-2690 MHz Band: The Potential for Accommodating Third Generation Mobile Systems". See also, executive summary. This report states that "The MDS industry has invested several billion dollars to develop broadband fixed wireless data systems in this band, including high-speed access to the Internet. These systems offer a significant opportunity for further competition with cable and digital subscriber line (DSL) services in the provision of broadband services in urban and rural areas. The band is used to provide video services for education and training in schools, health care centers and a wide variety of other institutions, as well as for the provision of a commercial video distribution service known as wireless cable." The report concludes that this spectrum is already heavily licensed throughout the country, that it would be technical difficult to segment or share the spectrum, and that relocation could cost between $10.2 and 30.4 Billion. See also, FCC release. (ET Docket No. 00-258.)
The NTIA released a report [169 pages in PDF] titled "The Potential for Accommodating Third Generation Mobile Systems in the 1710–1850 MHz Band: Federal Operations, Relocation Costs, and Operational Impacts". See also, executive summary. The major user is the Defense Department. The 1755-1850 MHz is used for tracking, telemetry, and commanding for space systems; medium-capacity, conventional fixed microwave communications systems; military tactical radio relay systems; air combat training systems; precision guided munitions; high resolution airborne video data links; and land mobile video functions such as robotics, and surveillance. The report concludes that there are significant obstacles to use of spectrum in this band by 3G services. For example, with respect to satellite control, the report concludes that "This function could not be completely relocated until all satellites using this band have expired, which could be as late as 2030." See also,  NTIA release.
The Department of Defense released a separate report [328 pages in PDF] titled "Department of Defense Investigation of the Feasibility of Accommodating the International Mobile Telecommunications (IMT) 2000 Within the 1755-1850 MHz Band". Similarly, the Air Force re-released a report [14 pages in PDF] titled "Case Study: Impact Assessment on Precision Strike Weapon Data Link Systems to Accomodate IMT 2000: 5 January 2001: Prepared By Eglin AFB, Florida."
Currently, spectrum is a national resource that is allocated by license by the federal government, "in the public interest." The 3G wireless industry is arguing with the military before the NTIA over who will use spectrum in one band; it is arguing with private sector ITFS and MDS users before the FCC over who will use spectrum in another band. Commissioner Furchtgott-Roth, the FCC's free market proponent, released a statement in which he argued that part of the problem is that the government is making spectrum allocation decisions. He wrote: "Government intervention is not required in order for spectrum to flow to its highest valued uses. A fully functioning secondary market would achieve this goal. When government intervenes to impose its own view of the highest valued use of spectrum, there is a significant risk that government will get it exactly wrong. Ultimately we must have faith that the marketplace is the best mechanism to chose among commercial applications for spectrum."
The Catholic Television Network, which is a major incumbent ITFS operator, stated that "it should be recognized that there are other options for 3G wireless, including existing cellular spectrum. Also, as recognized by the FCC, it is important to determine whether the cellular industry truly needs more spectrum, or whether it can operate more efficiently and use its existing spectrum for 3G services." Also, a collection of educational institutions and groups wrote to Secretary of Commerce Donald Evans, asking for his "direct and personal involvement" to "assure that educators maintain their critically needed ITFS spectrum allocation. Accommodation of new 3G mobile services offered by cellular companies must not come at the expense of our students, teachers and communities." The NTIA is a part of the Commerce Department. They also wrote a similar letter to Education Secretary Rod Paige.
The Telecommunications Industry Association (TIA) issued a release in which it conceded that "both reports conclude that substantial challenges lie ahead in any efforts to accommodate 3G systems in the bands studied." In addition, TIA President Matthew Flanigan stated that "we do not necessarily agree with all of NTIA's conclusions in this report."
3/28. Verizon Wireless filed with the FCC an Emergency Petition to Defer Action on Applications [PDF] requesting that the FCC defer the granting of pending applications by MDS and ITFS licensees for modification of existing facilities to provide two way operations. The Wireless Communications Association promptly filed a response [PDF] with the FCC in which it stated that Verizon's petition is an "outrageous and unprecedented attempt to delay the deployment of broadband wireless services that will compete against Verizon’s own DSL offerings ..."
IBM Holocaust Class Action
3/29. The law firm of Cohen Milstein announced the dismissal of complaint filed in U.S. District Court seeking class action status against IBM alleging involvement in the Nazi holocaust. See, release. See also, IBM's release of Feb. 15. 
3/30. Laura Unger, Acting Chairman of the SEC, gave a speech to the Philadelphia Bar Association titled "Protecting the Integrity of Financial Information in Today's Marketplace." She addressed the integrity of investment advice; she stated that "Online suitability is an especially important concern in today's markets as technology developments lead firms to offer a wider array of investment related tools and information." Next, she addressed the integrity of investment information available online; she said that "the Internet has also afforded easy access to fraudsters looking to hoodwink investors", such as "Tokyo Joe". She added that "I have asked the Enforcement Division to be especially watchful for online stock-picking sites." She also addressed the integrity of financial information and the integrity of fund performance advertising.
3/30. The USTR released a report titled "The 2001 National Trade Estimate Report on Foreign Trade Barriers." See, State Department release.
3/30. WTO Director General Mike Moore gave a speech in Moscow on Russia's request to join the WTO. He stated that "The WTO will not be a truly World Trade Organization until Russia, and other acceding countries, take their rightful place at our table." He also said that "entry into the WTO requires that the applicant government undertake legally binding commitments that have an impact upon a wide range of sectors." In particular, "Members too are keen to see the improvement of implementing legislation in critical areas such as ... TRIPS."
IP News
3/30. Hewlett-Packard announced that it resolved its dispute with Gotan Hsu SA over packaging for thermal inkjet cartridges in Spain. Under the settlement, Gotan has agreed to cease sales of the disputed packaging. See, HP release.
3/29. The PRC's Xinhua stated that "The Shanghai Intellectual Property Agency, funded by the local government, will begin business ... The opening of the agency is a step Shanghai has taken to improve intellectual property protection for China's foreseeable accession into the World Trade Organization ..." See, release.
Computer Crime
3/26. Benjamin Ballard was arrested in Portland, Oregon, on a felony complaint filed in U.S. District Court (SDNY) charging him with sending an interstate threatening communication via the Internet. The complaint alleges that he used his home computer to access the Internet, and engage in an instant message exchange with a student at a high school in White Plains, New York. In this IM exchange he pretended to be a senior at at the school, and warned the recipient not to go to school the next day because "theres going to be a lot of people dead tomorrow ..." The FBI was able to trace the IM back to him. AUSA Lauren Goldberg is in charge of the prosecution. See, DOJ release.
More News
3/30. Rep. James Sensenbrenner (R-WI) introduced HR 1329, a bill to make permanent the research and development tax credit. It was referred to the House Ways and Means Committee.
3/30. The Canadian business and technology law firm of Gowlings and the Calgary based law firm of Ballem MacInnes voted to merge, effective May 1, 2001. The merged firm will have almost 600 lawyers and patent and trademark agents in seven Canadian cities and Moscow, Russia. It will continue to be known as Gowlings. See, release
The House will not meet.
10:00 AM. The U.S. Court of Appeals (Fed Cir) will hear oral argument in Techsearch v. Intel, Appeal No. 00-1226. Location: Courtroom 201.
10:00 AM. The U.S. Court of Appeals (Fed Cir) will hear oral argument in Semitool v. Novellus Systems, Appeal No. 00-1375. Location: Courtroom 203.
7:00 - 8:30 PM. Napster will hold a "teach in" on music file copying at the Catholic University law school. See, Napster notice. Location: Columbus School of Law, 3600 John McCormack Rd. NE, Washington DC.
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