Tech Law Journal Daily E-Mail Alert
May 4, 2001, 8:00 AM ET, Alert No. 180.
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DOJ Nominees
5/3. The Senate Judiciary Committee held its Thursday executive business meeting. The agenda included votes on the nominations of Ted Olson to be Solicitor General, and Larry Thompson to be Deputy Attorney General. The votes were held over, at least until next week. The reason for the delay was an unrelated ongoing dispute between Democrats and Committee Chairman Orrin Hatch (R-UT) over procedure for Senate confirmation of judges. Other matters ripe for consideration by the Committee include the nominations of Charles James to be an Assistant Attorney General in charge of the Antitrust Division and Daniel Bryant to be an Assistant Attorney General in charge of the Office of Legislative Affairs.
Commerce Nominees
5/3. The Senate Commerce Committee approved several nominations, including Brenda Becker to be Assistant Secretary of Commerce, and Theodore Kassinger to be General Counsel of the Department of Commerce. See, release.
Copyright NPRM
5/3. The U.S. Copyright Office published a Notice of Proposed Rulemaking (NPRM) in the Federal Register regarding proposed amendments to its regulation governing notices of termination of transfers and licenses covering the extended renewal term. The current regulation is limited to notices of terminations made under section 304(c) of the copyright law. The Sonny Bono Copyright Term Extension Act created a separate termination right under section 304(d). Under the proposed regulation, procedures governing notices of termination of the extended renewal term would cover notices made under either section 304(c) or 304(d). Comments are due by June 18, 2001. See, Federal Register, May 3, 2001, Vol. 66, No. 86, at Pages 22139 - 22140. See also, PDF copy in CO web site.
Universal Service
5/3. The U.S. Court of Appeals (5thCir) issued its opinion in COMSAT v. FCC, a petition for review of the Sixteenth Order on Reconsideration in Federal-State Joint Board on Universal Service, CC Docket No. 96-45. The Appeals Court ruled that the FCC's order permitting the Incumbent Local Exchange Carriers to recoup universal services costs through access charges is contrary to the plain language of 254(e). It reversed and remanded.
CIPA Regs
5/3. The FCC published a notice in the Federal Register that it has made minor technical corrections to it rule implementing the Children's Internet Protection Act [PDF]. See, Federal Register, May 3, 2001, Vol. 66, No. 86, at Pages 22133. The FCC published its original rule at Federal Register, April 16, 2001, Vol. 66, No. 73, Pages 19394 - 19398. 
New Documents
Cannon: American Broadband Competition Act, 5/3 (HTML, TLJ).
USCA: opinion in Oak Tech v. ITC re patent infringement and section 337, 5/2 (HTML, IPO).
USCA: opinion in COMSAT v. FCC re FCC universal service order, 5/3 (HTML, USCA).
Quote of the Day
"It's been five years since the Telecommunications Act passed. Still, in most parts of the country, more than 90% of local phone service is controlled by the RBOCs. More troubling is the appearance of a pattern and practice where the Bells use the advantage of incumbency to systematically box out broadband competitors like Covad, Rhythms, and McLeod."

Rep. Chris Cannon (R-UT), statement about the
American Broadband Competition Act, May 3, 2001.
Broadband Debate
5/3. Rep. Chris Cannon (R-UT) and Rep. John Conyers (D-MI) introduced the American Broadband Competition Act of 2001, another bill in the debate over incenting the deployment of broadband services. Its content contrasts sharply with another bill, HR 1542, the Internet Freedom and Broadband Deployment Act of 2001, sponsored by Rep. Billy Tauzin (R-LA) and Rep. John Dingell (D-MI). See also, statement by Rep. Cannon.
Overturn Goldwasser. The Cannon Conyers bill would amend the Clayton Act to provide that a violation of the Communications Act can constitute a violation of antitrust law. The bill provides that "the court shall not dismiss such claim on the ground that the defendant's conduct was or is subject to the Communications Act of 1934 ..." It also provides that the trial court "may consider any conduct that violates any obligations or requirements imposed by the Communications Act of 1934 ... in determining whether the defendant has engaged in anticompetitive or exclusionary conduct." The bill thus addresses the July 25, 2000, opinion of the U.S. Court of Appeals (7thCir) in Goldwasser v. Ameritech.
Fast Arbitration of Interconnection Disputes. The bill would also require the Justice Department to establish an alternative dispute resolution process for the arbitration of disputes related to an interconnection agreement with an incumbent local exchange carrier (ILEC), such as Verizon, BellSouth and SBC. In this arbitration process, disputes must be arbitrated within 45 days, the Commercial Dispute Resolution Procedures of the American Arbitration Association would apply, discovery would be available, and decisions would be enforceable in federal court.
No Joint Marketing of DSL by Bells. The bill would also amend the Clayton Act to provide that an ILEC "and all affiliates of such carrier may not jointly market in such State any advanced telecommunications service with any other telecommunications or information services offered by such carrier or by any of such affiliates."
Commerce v. Judiciary. The Cannon Conyers bill would benefit competitive local exchange carriers (CLECs), while the Tauzin Dingell bill would benefit ILECs. In addition to the conflict between constituencies, there is a conflict between two committees, both of which seek authority over legislation affecting the Internet. Both Cannon and Conyers are members of the House Judiciary Committee. Their bill would amend antitrust law, which falls within the jurisdiction of their Judiciary Committee. Tauzin and Dingell are the Chairman and ranking Democrat of the House Commerce Committee. Their bill would amend communications law, which falls within the jurisdiction of their Commerce Committee. In addition, Judiciary Committee Chairman James Sensenbrenner (R-WI) has also asserted jurisdiction over the Tauzin Dingell bill.
Reaction. The USTA, whose membership includes ILECs, issued a release condemning the Cannon Conyers bill. USTA President Gary Lytle said that "HR 1542 is the best vehicle for spurring broadband deployment." The main provision of HR 1542 would exempt interLATA data traffic from the requirements of Section 271 ot the Telecom Act of 1996, which requires the Bells to open up their facilities to competitors before they are allowed to provided interLATA (or long distance) services. In contrast, the Consumers Union (CU) and Consumer Federation of America praised the Cannon Conyers bill. "By attempting to streamline dispute resolution and increase penalties for failure to comply with network opening requirements, this legislation offers consumers a much better chance of seeing local markets open to competition than either the Tauzin-Dingell bill or the status quo," said the CU's Gene Kimmelman. "We are concerned that the Tauzin Dingell bill would have exactly the opposite effect of its professed aim. Due to the economic slowdown, many of those who were the real innovators for Internet services and local phone competition are faltering. Tauzin-Dingell would hobble those innovators by giving the monopoly Bell companies further advantage over their potential competitors." 
Patent Ruling Upheld
5/2. The U.S. Court of Appeals (FedCir) issued its opinion in Oak Technology v. ITC, an appeal of a Section 337 determination by the U.S. International Trade Commission pertaining to the importation of CD-ROM drive controllers. The ITC instituted an investigation of MediaTek, United Microelectronics, Lite-On Technology, and AOpen at the request of Oak Technology. Oak asserted that MediaTek and the others imported articles into the U.S. in violation of Oak's U.S. Patent No. 5,581,715. The ITC ruled, pursuant to Section 337, that the '715 patent was not infringed by MediaTek and the others. The Court of Appeals affirmed.
More News
5/2. The FBI's National Infrastructure Protection Center (NIPC) issued an advisory regarding a buffer overflow vulnerability in Microsoft's Internet Information Services 5.0. The advisory stated that "the threat level of the above vulnerability is high." See also, Microsoft's Security Bulletin MS01-023.
5/3. The Treasury Department's Committee on Foreign Investment in the United States approved ASM Lithography Holding NV's acquisition of Silicon Valley Group. ASM is a Dutch company. SVG is Intel's primary supplier of automated wafer processing equipment for making semiconductors. See, SVG release.
5/3. The SEC launched of a web-based survey that asks investors to provide information about how they use electronic media, including the Internet, to make investment decisions. See, SEC release.
5/2. Anthony Wayne, Assistant Secretary of State For Economic and Business Affairs, gave a speech in Brussels, Belgium, to the Transatlantic Consumer Dialogue (TACD) Opening Plenary. He touched on e-commerce disputes. "The third issue is e-commerce codes of conduct, including Alternative Dispute Resolution. I know this is a top priority for Commissioner Byrne and DG SANCO. The U.S. Federal Trade Commission and Department of Commerce have sponsored a number of workshops on the issue. There are a number of interesting models for alternative dispute resolution. I understand that TACD NGOs have met with the Global Electronic Business Dialogue (GBDE) to discuss ADR and other e-commerce issues. Already, we can see the potential benefits of collaboration."
5/3. The Consumer Electronics Association (CEA) submitted another comment [PDF] to the FCC regarding the compatibility between digital cable systems and consumer electronic products. See also, CEA release. PP Docket No. 00-67.
Today
Day two of Computer Law Association conference. Location: Monarch Hotel, Washington DC.
8:30 AM - 2:00 PM. The National Science Foundation's Special Emphasis Panel in Advanced Computational Infrastructure and Research will hold the second of two days of closed meetings to review Distributed Terascale Facility (DTF) proposals for financial support. Location: Hyatt Reston, 1800 Presidents Street, Reston, VA. See, notice in Federal Register, April 20, 2001, Vol. 66, No. 77, at Page 20337 - 20338.
12:15 PM. The Federal Communications Bar Association's Wireless and Legislation Committee will host a luncheon. The price to attend is $15. The speakers will be Mike Chappell, Legislative Director to Rep. Chip Pickering (R-MS), and Paul Begey, Legislative Assistant to Rep. Al Wynn (D-MD). RSVP to Arlice. Location: Sidley & Austin, 1722 Eye Street, NW, 9th Floor, Washington DC.
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