|4/27. The U.S.
Court of Appeals (DCCir) issued its opinion
v. Heinz, a baby food industry antitrust
merger review case. In early 2000 Heinz and Beech-Nut, the
second and third largest baby food companies in the U.S.,
entered into a merger agreement. Gerber holds a 65% market
share. The FTC sought a preliminary
injunction pursuant to § 13(b) of the Federal Trade
Commission Act, 15 U.S.C. § 53(b), to enjoin the merger. The
U.S. District Court (DDC) denied the preliminary injunction.
The FTC appealed. The Appeals Court reversed and remanded for
entry of a preliminary injunction against Heinz and Beech-Nut.
4/27. The U.S.
Court of Appeals (5thCir) issued its opinion
v. EVI, an oil industry antitrust case.
Lycon sued EVI alleging that EVI had violated federal
antitrust laws by engaging in price discrimination in
violation of 15 U.S.C. § 13. The District Court granted
summary judgment for EVI reasoning that "Lycon cannot
prove that EVI's alleged price discrimination had a prohibited
effect on competition ..." The Appeals Court affirmed.
|4/27. The U.S.
Court of Appeals (7thCir) issued its opinion
From Religion Foundation v. Bugher, a
constitutional challenge to a Wisconsin program that
subsidizes Internet and telecommunications service for both
public and private, sectarian and nonsectarian, schools. The
FFFR and several individuals filed a complaint in U.S.
District Court (WDWisc)
pursuant to 42 U.S.C. § 1983 alleging that Wisconsin's TEACH
program is unconstitutional. The District Court granted
summary judgment in part in favor of the Wisconsin defendants,
finding the access portion of the program was constitutional.
However, it also granted summary judgment in part in favor of
the FFFR plaintiffs, finding that the grant aspect of the
program was unconstitutional under the Establishment Clause of
the First Amendment. Wisconsin appealed the later portion. The
Court of Appeals affirmed.
|4/26. Sen. Strom
Thurmond (R-SC) introduced S
791, the Video Teleconferencing Improvements Act of
2001, a bill amend the Federal Rules of Criminal Procedure
to provide that video teleconferencing may be used to arraign
defendants, and for certain other criminal proceedings.
4/24. Rep. Sheila
Lee (D-TX) introduced HR
1562, the Immigration Restructuring and Accountability Act
of 2001, a long bill that would, among others things, require
the INS to establish "an Internet web-based system"
that will allow any person or employer to track their filings
under the Immigration and Nationality Act.
re intercarrier compensation, 4/27 (PDF, FCC).
setting prices for intercarrier compensation for ISP bound
traffic, 4/27 (PDF, FCC).
from FCC price setting order, 4/27 (HTML, FCC).
in Freedom From Religion Foundation v. Bugher re
constitutionality of state support for Internet access
subsidies for schools, 4/27 (HTML, USCA).
in Global NAPs v. FCC re reciprocal compensation, 4/27 (TXT,
in FTC v. Heinz re antitrust merger review, 4/27 (HTML, USCA).
in Lycon v. EVI, an oil industry antitrust case, 4/27 (HTML,
re trade, 4/27 (HTML, State).
791, the Video Teleconferencing Improvements Act of 2001,
4/26 (HTML, LibCong).
1562, a bill requiring the INS to provide would a web
based system to allow people to track their INS proceedings,
4/24 (HTML, LibCong).
|4/27. The FCC released its order
[72 pages in PDF] that adopts rules setting prices for
intercarrier compensation for ISP bound traffic. §
251(b)(5) of the 1996 Telecom Act provides that local
phone companies must compensate each other for handling each
other's local calls. One telephone company pays a second
telephone company for each local call the second
company completes to one of its customers. ILECs,
such as BellSouth, Verizon, and SBC, complain that some CLECs
are abusing the system by concentrating on serving ISPs, but
not residential customers, and making the money off of
reciprocal compensation payments that are not in fact
reciprocal, and involve little cost to provide. They want to
end reciprocal compensation for ISP bound traffic. The FCC
order does not eliminate intercarrier compensation for ISP
bound traffic. Rather, it regulates the rates for three years.
The argument advanced by the FCC in the order is that
telecommunications traffic delivered to an ISP is interstate
access traffic under § 201
of the Communications Act, specifically "information
access," thus not subject to reciprocal compensation.
See, CC Docket Nos. 96-98 and 99-68, Order on Remand and
Report and Order, FCC 01-131.
FCC Commissioner Furchtgott-Roth issued a lengthy dissent.
He wrote: "There is, however, one solution that is not
respectful of other governmental institutions. It is a
solution that places under exclusive federal jurisdiction
broad expanses of telecommunications. It is a solution that
does not directly solve the problem at hand. It is a solution
that can be reached only through a twisted interpretation of
the law and a vitiation of economic reasoning and general
common sense. That solution is nationwide price regulation.
That is the regrettable solution the Commission has
adopted." He added that "The result will be another
round of litigation, and, in all likelihood, this issue will
be back at the agency in another couple of years."
4/27. The FCC also released its Notice
of Proposed Rulemaking (NPRM) [70 pages in PDF] regarding
reciprocal compensation specifically, and all intercarrier
compensation generally. The NPRM states that it begins "a
fundamental re-examination of all currently regulated forms of
intercarrier compensation." It adds that this is "in
light of increasing competition and new technologies, such as
the Internet and Internet-based services, and commercial
mobile radio services ..." See, In the Matter of
Developing a Unified Intercarrier Compensation Regime, CC
Docket No. 01-92.
The FCC seeks public comments "on our proposal to adopt a
bill-and-keep rule to govern local exchange carrier ("LEC")
recovery of costs associated with the delivery of ISP-bound
traffic after the three-year interim period. We also seek
comment on the potential adoption of a bill-and-keep approach
to reciprocal compensation payments governed by section 251
..., and the eventual application of bill and keep to
interstate access charges regulated under section
The NPRM and Order were both announced by the FCC on April 19,
but not released until April 27. This is common FCC practice.
Public comments in response to the NPRM will be due within 90
days after publication in the Federal Register, which has not
yet occurred. Reply comments will be due within another 45
4/27. The U.S.
Court of Appeals (DCCir) issued its opinion
NAPs v. FCC a petition for review of an FCC Order (FCC
99-381) that Globals Naps'
tariff for Internet-bound traffic was facially invalid under
FCC regulations. Upheld.
|4/26. Sen. Orrin Hatch
(R-UT) gave a speech in the Senate on World Intellectual
Property Day. He stated that "Our country's
technological prowess and our high standard of living stem
from the creativity, determination, and entrepreneurial drive
of our citizens and the protection we provide for their
4/26. The Senate
Judiciary Committee, which had scheduled a business
meeting for April 26 to consider the nominations of of Larry
Thompson to be Deputy Attorney General and Ted Olson
to be Solicitor General, held over the meeting for one week.
4/29. The ICANN
published in its web site a preliminary
agenda for the ICANN Board meeting in Stockholm, Sweden on
June 4, 2001.
4/27. The U.S.
Court of Appeals (4thCir) issued its unpublished opinion
v. Course Technology. Repede entered into a
publishing agreement with Course Technology (CT) to contribute
material to a computer programming textbook. After Repede
contributed several sections, CT hired another writer to
replace him. Repede filed a complaint against Course
Technology (CT) in U.S. District Court (DSC) alleging breached the contract
by denying him a right of first refusal to draft subsequent
versions of the textbook, and alleging fraud for
underestimating royalties. The District Court found that there
was no right of first refusal in the contract, and no fraud.
The Appeals Court affirmed without explanation.
|4/27. President Bush announced his intent to renominate Michael
Powell for another five year term as FCC Commissioner.
This is a five year term commencing on July 2, 2002 and
expiring on June 30, 2007. See, White
House release and Powell
|Colin Powell on Trade
|4/27. Secretary of State Colin Powell gave a speech
in Washington DC regarding trade, the WTO, World Bank, and IMF.
He stated that "We must acknowledge first that engagement
with the global economy, opening up to trade and investment,
is the engine of poverty-easing growth. The last thing nations
should do in response to the desperate needs of the
ill-housed, ill-fed, uneducated and unhealthy is to adopt
policies that have the effect of slowing growth. That is why
the President supports the launch of a new round of
multilateral trade negotiations in the WTO."
|4/26. Sen. Bill
Nelson (D-FL) gave a speech in the Senate regarding S
450, the Financial Institution Privacy Protection Act
of 2001, which he introduced on March 1, 2001. He
condemned the practice of pretext calling, in which a caller
"contacts a business or government entity and uses a
person's social security number or other personal identifier
to trick an unsuspecting clerk to provide confidential
information ..." He added that these "Information
brokers with little regard for people's privacy are doing the
dirty work for organizations that otherwise portray themselves
as privacy proponents", such as banks, insurance
companies and law firms.
|8:30 AM. Sen. Charles
Grassley (R-IA) will give a breakfast address to the U.S.
Chamber of Commerce on Senate Finance Committee plans to mark
up tax and trade bills. Location: U.S. Chamber of Commerce,
1615 H St. NW, Washington DC. See, release
12:15 PM. Fleischman & Walsh's Telecom Group and the Federal Communications Bar
Association's Wireless Committee will host a brown bag
lunch on "FCC Rules on Telecom Providers' Rights to
Access Property." The speakers will be John Windhausen
(ALTS), Gerry Lederer (BOMA), and Larry Freedman (Fleischman
& Walsh). Location: F&W, 1400 16th St., NW. RSVP to Barbara Fitzpatrick.
Deadline to file reply 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 USPTO regarding
"the international effort to harmonize substantive
requirements of patent laws, and the subsequent changes
to United States law and practice." Comments on any topic
may be submitted. However, the USPTO notice
enumerates 17 topics, including the first to invent versus the
first to file systems of priority, and what may be considered
patentable subject matter in light of the State Street
decision. See, Federal Register, March 19, 2001, Vol. 66, No.
53, at Pages 15409 - 15411.
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|Quote of the Day
|"Internationally, we are building a more peaceful and
open world. Our relationship with China is maturing. There
will be areas where we can agree, like trade; and areas where
we won't agree -- Taiwan, human rights, religious
President George Bush, radio
address, April 28.