Tech Law Journal Daily E-Mail Alert
April 16, 2001, 8:00 AM ET, Alert No. 166.
TLJ Home Page | News from the Web | Calendar | Search | Back Issues
4/11. Clark Lackert and Keith Sharkin have joined the New York City office of the law firm of King & Spalding as partners. They will establish a Trademark Practice Group there. They both were previously at Nims, Howes, Collison, Hansen & Lackert. See, release.
4/10. Edward Lentz has joined the Philadelphia office of the law firm of Morgan Lewis as a partner in the firm's Intellectual Property Practice Group. He was previously SVP and US General Counsel of SmithKline Beecham (now GlaxoSmithKline). See, release. Adi Seffer will join the firm's Frankfurt, Germany, office as head of its Technology Practice. See, release.
4/13. President Bush will nominate Otto Reich to be Assistant Secretary of State for the Western Hemisphere.
4/13. Amy McKennis will join the Cellular Telecommunications & Internet Association (CTIA) as its Senate Director for Government Affairs. See, release. She previously worked for Sen. Fred Thompson (R-TN). Before that she worked for Sen. Kay Hutchison (R-TX). McKennis also co-authors the Fashion Police column for the HillZoo.
More News
4/9. The U.S. Court of Appeals (11thCir) issue a two page opinion [PDF] in Weys TV v. FCC, a petition for review of a final order of the FCC regarding whether the FCC erroneously interpreted the Cable Act of 1992 by allowing cable companies to discontinue mandatory carriage of Weys TV's signal. Petition for review denied.
4/13. The NIST published a notice in the Federal Register regarding the availability of funds under the Critical Infrastructure Protection Grants Program. See, Federal Register, April 13, 2001, Vol. 66, No. 72, at Pages 19139 - 19142.
4/13. The USTR published a notice in the Federal Register regarding the 2001 Annual GSP Product and Country Eligibility Practices Review. The deadline for submitting petitions is June 13, 2001. See, Federal Register, April 13, 2001, Vol. 66, No. 72, Pages 19278 - 19279.
4/14. The ICANN published a notice the schedule and registration information for its next round of meetings, to be held in Stockholm, Sweden, on June 1-4, 2001.
4/13. The U.S. Court of Appeals (DC Cir) heard oral argument in Telecom Resellers v. FCC, Appeal No. 00-1144.
4/13. The Copyright Office published in the Federal Register a final rule regarding service of a notice of institution of action for infringement and service of complaint in an infringement action where registration has been denied. See, Federal Register, April 13, 2001, Vol. 66, No. 72, at Pages 19094 - 19095.
New Documents
USCA: opinion in Trans Union v. FTC re financial privacy, 4/13 (HTML, USCA).
USCA: opinion in Weys TV v. FCC re Cable Act, 4/9 (PDF, FCC).
DOL/ETA: notice re availability of grant funds for training high tech workers, 4/13 (TXT, FedReg).
NIST: notice in the re availability of grant funds under the Critical Infrastructure Protection Grants Program, 4/13 (TXT, FedReg).
CO: final rule re service in infringement actions where registration has been denied, 4/13 (TXT, FedReg).
Financial Privacy
4/13. The U.S. Court of Appeals (DCCir) issued its opinion in Trans Union v. FTC, a petition for review of an FTC cease and desist order regarding the sale of consumer reports by credit reporting agencies for marketing purposes. The Appeals Court upheld the FTC's order that Trans Union must stop selling target marketing lists for purposes not listed in the Fair Credit Reporting Act (FRCA). The Appeals Court also upheld the constitutionality of the FRCA.
Trans Union (TU) is one of the three large credit reporting agencies. It compiles credit reports about individuals from credit information that it collects from banks, credit card companies, and other lenders. Its databases contain information on 190 Million people. It then sells these credit reports to lenders, employers, and insurance companies. This practice is not at issue. However, TU also sells target marketing products to direct marketers. These consist of lists of names and addresses of individuals who meet specific criteria, such as possession of an auto loan, a department store credit card, or two or more mortgages. This practice at issue.
The FTC has responsibility for enforcing the FCRA. This statute protects the privacy of credit information by prohibiting credit reporting agencies from selling "consumer reports", except under the circumstances enumerated in the Act. The FRCA lists whether to approve an application for credit, employment, or insurance -- but not direct marketing. The FRCA defines a "consumer report" as any information provided "by a consumer reporting agency bearing on a consumer's credit worthiness, credit standing, credit capacity, character, general reputation, personal characteristics, or mode of living which is used or expected to be used or collected in whole or in part for the purpose of serving as a factor in establishing the consumer's eligibility for (A) credit ..."
This is an ancient proceeding. The FTC has been endeavoring for a decade to stop this practice. The FTC instituted a proceeding against TU in 1992. The FTC first issued a cease and desist order in 1994. However, the Court of Appeals granted TU's petition for review, on the grounds that the FTC had failed to provide evidence that TU's target marketing products were used by marketers in the issuance of credit. See, Trans Union Corp. v. FTC, 81 F.3d 228 (DCCir 1996). So, the FTC conducted extensive discovery, held a month long administrative trial, and documented this contention. It again ordered TU to stop. TU then filed this petition for review.
The Court of Appeals denied the petition for review. First, TU argued that the FTC again failed to provide substantial evidence in support of its findings. The Appeals Court this time held that the FTC had provided substantial evidence that the target marketing lists being sold by TU to marketers were being used as a factor in granting credit, and hence, are "consumer reports" within the meaning of the FRCA. Second, TU argued that the FRCA is unconstitutionally vague under the due process clause of the Fifth Amendment, and that it is an unconstitutional restraint on free speech. TU sought application of the strict scrutiny standard. The Appeals Court upheld the FRCA's constitutionality, applying the reduced constitutional protection standard for commercial speech articulated by the Supreme Court in Dun & Bradstreet v. Greenmoss.
H1B Fees
4/13. The Department of Labor's Employment and Training Administration (ETA) published a notice in the Federal Register regarding the availability of grant funds for skill training programs financed by the H1B Technical Skills Training Grant Program. This program is financed out of the fees paid by employers with H1B visa applications. H1B visas enable high tech companies to hire highly skilled alien workers to fill positions for which there is a shortage of U.S. workers. The purpose of this grant program is to train U.S. workers for high tech occupations. See, Federal Register, April 13, 2001, Vol. 66, No. 72, at Pages 19209 - 19223. See also, ETA's H1B web page.
4/9. James Yekrang plead guilty in U.S. District Court (CDCal) to one count of taking kickbacks in violation of the Anti-Kickback Act of 1986, and one count of tax evasion. Yekrang is a former employee of defense contractor Allied Signal in its Business Information Systems Division. He took kickbacks from Object Foundry, a software company, in exchange for recommending subcontract awards and contract extensions, as well as for the approval of some inflated labor claims. On April 2, Sammy Dev, the owner of Object Foundry who paid the kickbacks, plead guilty to violating the Anti-Kickback Act of 1986 and then aiding and assisting in the filing of a false corporate income tax return. See, USAO release.
9:30 AM - 3:30 PM. The George Washington University Virginia Campus will host a symposium titled "Privacy in the Information Age." See, agenda. Location: The George Washington University Virginia Campus 20101 Academic Way, Ashburn, Virginia (at University Center, Route 7, one mile west of Route 28).
12:30-1:30 PM. FCC Commissioner Harold Furchtgott- Roth will speak to an AARP group. Location: Northeastern Presbyterian Church, Washington DC.
Deadline to file comments with the FCC regarding its Final Report [101 pages in PDF] on the possible use of spectrum in the 2500-2690 MHz band for Third Generation (3G) wireless systems. See, notice in Federal Register, April 11, 2001, Vol. 66, No. 70, at Pages 18740 - 18741. The report, dated March 30, 2001, is 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 of report.
Deadline to file comments with the FCC in response to its notice requesting comments to "update and refresh the record" on issues raised in its Computer III Further Notice of Proposed Rulemaking, originally issued on January 30, 1998. See, Federal Register, March 15, 2001, Vol. 66, No. 51, at Pages 15064 - 15065.
Deadline to submit comments to the USTR regarding the Antidumping Act of 1916. Following complaints by Japan and the EC, WTO dispute settlement panels, and the WTO Appellate Body, found that this statute is inconsistent with U.S.'s obligations under the General Agreement on Tariffs and Trade 1994 and the Agreement on Implementation of Article VI of GATT 1994. See, notice in the Federal Register, March 19, 2001, Vol. 66, No. 53, at Pages 15517 - 15518.
Spectrum Caps
4/13. Friday was the deadline to submit comments to the FCC in response to its Notice of Proposed Rulemaking (NPRM) in another of its reexaminations of its old CMRS spectrum aggregation limits (Rule 20.6), and restrictions on cellular cross ownership (Rule 22.942). The FCC seeks comment on whether it should modify its limits on the amount of spectrum that any single entity may hold in a market and whether it should modify its restrictions on cross-ownership between cellular telephony providers located in the same market. See, In the Matter of 2000 Biennial Regulatory Review Spectrum Aggregation Limits for Commercial Mobile Radio Services, WT Docket No. 01-14. See also, notice in Federal Register, February 12, 2001, Vol. 66, No. 29, Pages 9798 - 9806. See also, text of 47 CFR 20.6 and 47 CFR 22.942.
The Rural Telecommunications Group and the OPASTCO submitted a joint comment in which they argued that the reasoning behind both rules is outdated given the level of competition, and that both should be eliminated. The National Telephone Cooperative Association (NTCA), which represents small and rural local telephone exchanges, stated in its comment that "if the limits are removed, the public interest will best be served if the Commission were to impose conditions to insure that customers in rural areas will have equal access to advanced services."
Telephone and Data Systems and its subsidiary, U.S. Cellular Corporation, submitted a comment in which they argued that the FCC should retain the spectrum cap, but revise the cellular cross interest rule to allow non-controlling cross interests comparable to those permitted under the spectrum cap. WorldCom, which is a reseller of CMRS, stated in its comment that "The Commission’s spectrum aggregation limits have been critical in achieving a more competitive CMRS market, with at least four facilities-based carriers and a number of resale carriers serving most population centers. ... The elimination of the spectrum cap at this time inevitably will result in further consolidation of the wireless industry and have a significant negative impact on the competitive CMRS market."
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 address.

Number of subscribers: 1,364.

Contact: 202-364-8882; E-mail.
P.O. Box 15186, Washington DC, 20003.

Privacy Policy

Notices & Disclaimers

Copyright 1998 - 2001 David Carney, dba Tech Law Journal. All rights reserved.