|5/10. The House
Judiciary Committee held a hearing on HR 718, the
Unsolicited Commercial Electronic Mail Act of 2001, and HR
1017, the Anti-Spamming Act of 2001. HR 718, sponsored by Rep. Heather Wilson
(R-NM) and Rep. Gene
Green (D-TX), has already been approved by the House
Commerce Committee. The Committee heard testimony from
business group representatives in opposition to pending anti
spam legislation. See, prepared statements of Wayne
Crews (Cato Institute), Marc
Lackritz (Securities Industry Association), Rick
Lane (Chamber of Commerce), Paul
Crews testified that "Laws supposedly designed to halt
spam can do more harm than good." Lackritz testified that
"we believe enacting legislation that frustrates the
innovative use of the Internet would be bad and misguided
public policy. Moreover, it would constitute a severe
over-reaction to a problem that can be addressed with a
narrowly tailored solution along the lines of HR 1017."
Lane testified that "the primary focus of legislation
regarding commercial e-mail should center-around combating the
sending of fraudulent and deceptive e-mail." Misener
testified that HR 718 "makes a good effort to prohibit
egregious e-mail practices. Unfortunately, we believe this
bill goes too far to limit such practices and would
inadvertently constrain legitimate business activities."
|5/10. President George Bush sent a cover
letter to Congressional leaders in which he stated that
"I have placed the enactment of U.S. Trade Promotion
Authority at the top of my trade legislative agenda."
|TRIPS, Software and
|5/4. The Business Software
Alliance (BSA) wrote a letter
to USTR Robert Zoellick
identifying several trade issues that affect software
companies. The letter states that "Software piracy
continues to be a serious problem. Many WTO members have yet
to fully implement their TRIPs obligations; and too many
others are not taking effective enforcement actions." The
letter also states that "Tariffs on computers and
peripherals are still very high in some countries, creating a
substantial impediment to U.S. exports of information
technology equipment." Finally, the letter addresses two
e-commerce issues. First, it addresses "the
classification for trade purposes of downloaded products.
Since software can be downloaded (as a good) or delivered by
an ASP (as a service), software provided via the Internet can
be either as a good or a service, depending on the business
model. It is our firmly held view that software and other
products acquired through networks by means of a download,
should be treated as a good for classification purposes, and
subject to the same trade rules as like products acquired
through more traditional means." Also, the letter states
that there is "the need to update our trade agreements to
reflect the array of new Internet-related products and
services that have evolved over the past 10 years since the
conclusion of the Uruguay Round."
|Commerce Dept. Nominees
|5/10. The Senate
Banking Committee approved four of President Bush's
nominees: Ken Juster (Undersecretary of Commerce for
Export Administration), Grant Aldonas (Undersecretary
of Commerce for International Trade), Maria Cino (Asst. Sec.
of Commerce and Director General of the U.S. and Foreign
Commercial Service), and Glenn Hubbard (Chairman of the
President's Council of Economic Advisers). See, release.
to Congress re fast track trade negotiating authority, 5/10
(HTML, White House).
re FCC's NOI on interactive TV, 5/9 (HTML, NCTA).
in McCook Metals v. Alcoa re jurisdiction of the Federal
Circuit, 5/10 (HTML, USCA).
in Geffon v. Micrion re securities class actions, 5/10 (HTML,
re securities regulation and the Internet, 5/6 (HTML, SEC).
|5/10. FCC Chairman Michael Powell announced that W.
Kenneth Ferree will be the new Chief of the Cable Services Bureau,
effective May 21, 2001. He replaces Deborah Lathen.
Ferree is a partner at Goldberg
Godles Wiener & Wright a small Washington DC law
office specializing in communications law. He is also an
adjunct professor at Georgetown University Law Center, where
he teaches communications law and professional responsibility.
He is also the author of Communications
Law and Regulation. See, FCC
5/10. FCC Chairman Michael Powell announced that Julius
Knapp will be a Deputy Chief of the Office of Engineering and
Technology (OET). Knapp is currently Chief of the Policy
and Rules Division in OET and oversees spectrum allocations
and technical rules for radio frequency devices as well as
coordination of radiofrequency issues with the Federal
Government. He has been with the FCC for 26 years.
|FCC Dead Sharks
|5/9. NCTA President
Robert Sachs gave a speech
in Orlando, Florida, in which he addressed FCC regulation
of interactive cable services. He stated that "A
great deal of our work at NCTA is encouraging public policy
that gives technology the free market running room it needs to
grow. A case in point is the Notice
of Inquiry on Interactive TV which the FCC put out for
comment in January. ... But we consider regulation of yet to
be developed services to be counter- productive to their very
development. There are those, for commercial reasons of their
own, who want the government to regulate Interactive
Television before it's ever launched. And it's a bit
disconcerting that they have gotten as far as an FCC Notice of
Inquiry. FCC Chairman Michael Powell recently commented on
whether it's wise to start regulating ITV before the market is
even visible. As the Chairman put it: 'I don't believe in
regulating phantoms.' I couldn’t agree more. And given the
Chairman's caution, it's unlikely that this particular effort
will get very far." However, Sachs concluded, "It's
like finding a dead shark in your swimming pool."
|5/9. Sen. Fred
Thompson (R-TN) and Sen.
Herb Kohl (D-WI) introduced the "Citizens' Privacy
Commission Act," a bill to establish an 11 member
commission to examine how federal, state, and local governments
collect and use personal information, and to make
recommendations to Congress. See, Thompson
|5/10. A delegation from the European Union that is in
Washington DC to investigate Echelon condemned several federal
agencies for not meeting with it. Carlos Coelho, Chairman of
the European Parliament's Temporary Committee on the Echelon
Interception System, released a statement
which included the following: "we are concerned and
dismayed that scheduled meetings with the State Department,
with the Advocacy Centre of the Department of Commerce were
cancelled at the last minute without a satisfactory
explanation. We are very disappointed by the last-minute
reluctance of the CIA and the NSA to meet our delegation in
spite of the advanced preparations that had been made. As a
result we are cutting short our visit to Washington and
returning to Europe immediately."
|5/10. Rep. Mike Oxley
(R-OH), Chairman of the House Financial
Services Committee, stated that he welcomes President
Bush's statement that he intends to nominate Harvey Pitt
to be Chairman of the SEC. He stated that "I look forward
to working with him as we use the advantages of modern
technology to advance our capital markets in the world’s
financial arena and to make the advantages of investing
accessible to more and more Americans." See, release.
5/6. Laura Unger, Acting Chairman of the SEC, gave a speech
Los Angeles regarding investing, securities regulation and the
Internet in which she addressed the SEC's new Order Execution
and Routing Disclosure Rules, whether financial portals should
register as broker- dealers, Regulation FD, potential
conflicts of analysts, and Internet fraud.
|Securities Class Actions
|5/10. The U.S.
Court of Appeals (1stCir) issued its opinion
v. Micrion, a class action securities suit
against Micrion and several of its officers. Micrion, which
has since merged with FEI
Company, produced focused ion beam systems for
semiconductor mask repair and device edit applications. The
District Court granted defendant's motion for summary judgment
on the grounds that there was no genuine dispute of material
fact as to whether the statements in question were misleading
or fraudulent. (Geffon v. Micrion, 76 F. Supp. 2d 134.) The
Court of Appeals affirmed on the grounds that plaintiffs
adduced insufficient evidence of defendants' scienter.
|5/9. The SEC filed a
civil complaint in U.S. District Court (DMass)
against Arcangelo Capozzolo and Market Traders alleging
violation of federal securities laws. Capozzolo is the
operator of a stock recommendations web site. Market Traders
is his company. The complaint alleges that the defendants
violated § 10(b) of the Securities Exchange Act and Rule
10b-5 thereunder by making false and misleading statements on
in the web site, and in bulk e-mail. In addition, the
defendants agreed, without admitting or denying the
allegations, to the entry of a permanent injunction and to the
imposition of a civil penalty against Market Traders.
|5/10. The Senate
Judiciary Committee held an executive business meeting. The
Committee approved the nominations of Charles James to be
Assistant Attorney General in charge of the Antitrust Division,
Daniel Bryant to be Assistant Attorney General for
legislative affairs, and Larry Thompson to be Deputy
Attorney General. However, the Committee again delayed its
vote on the nomination of Ted Olson to be Solicitor
|Deadline to file reply comments with the FCC in
response to its Notice
of Inquiry (NOI) regarding cable open access. (See,
In the Matter of Nondiscrimination in the Distribution of
Interactive Television Services Over Cable, CS Docket No.
01-7.) The deadline had been April 20, but was extended. The
filing system contains 27 original comments.
Deadline to file comments with the FCC in response to its
request for comments regarding the cable ownership limits
imposed upon AT&T by the FCC in its AT&T Time Warner
merger review proceeding, in light of the March 2, 2001,
opinion of the U.S. Court of Appeals in Time
Warner v. FCC, 249 F.3d 1126 (D.C. Cir. 2001). (CS Docket
No. 99-251.) See, FCC notice.
12:30 PM. The Federal
Communications Bar Association will host a lunch. The
speaker will be Rep.
Fred Upton (R-MI). Location: Capitol Hill Hyatt, 400 New
Jersey Ave., NW, Washington DC. The FCBA is no longer
12:30 PM. William
Gates, Sr., a founder of the Seattle based law firm of Preston Gates, and a
Co-Chair of the Bill and Melinda Gates Foundation, will speak
at a National Press Club
luncheon. Location: Ballroom, National Press Club, 529 14th
St. NW, 13th Floor, Washington DC.
|SBC Missouri 271
|5/10. The Antitrust
Division of the Department of Justice (DOJ) submitted an
analysis to the FCC regarding
271 application to provide long distance service in
Missouri. The DOJ recommended that the FCC should
independently review the prices that SBC charges its
competitors for use of its network. The DOJ stated that many
of the prices charged by SBC for the use of "unbundled
network elements" are significantly higher in Missouri
than in states where SBC has already been permitted to provide
long distance service. Also, the DOJ stated that there is
limited use of those elements by competitors, and indications
that Missouri prices might not be based on forward looking
costs. See, DOJ
release. SBC SVP Priscilla Ardoin, stated in response that
"SBC is confident that it will be able to demonstrate to
the FCC that the evidence supports approval of our Missouri
long distance application." See, SBC
|Fed Cir Jurisdiction
|5/10. The U.S.
Court of Appeals (4thCir) issued its opinion
Metals v. Alcoa, a case regarding appellate
jurisdiction over an appeal from a discovery order in a
proceeding that is ancillary to a proceeding regarding patent
validity and enforceability. The 4th Circuit transferred the
appeal to the Federal Circuit.
Background: McCook filed a complaint against Alcoa in U.S. District Court
alleging interference with customer contracts and prospective
business advantage in violation of state law, monopolization
of the relevant product market in violation of the Sherman
Act, and that two of Alcoa's patents for making high
strength aluminum alloy were neither valid nor enforceable.
McCook then obtained a third party subpoena from the U.S.
District Court (EDVa)
directing Reynolds Metals to appear, testify, and produce
documents at a deposition. Reynolds refused, citing work
product and attorney client privileges. The District Court (EDVa)
upheld Reynolds objections. McCook appealed to the Appeals
Court (4thCir). Holding: The Appeals Court (4thCir)
reasoned that because jurisdiction in the underlying action is
based in part on 28 U.S.C. § 1338, which confers jurisdiction
upon district courts in patent matters, any review of the
ancillary discovery ruling must be sought from the U.S. Court
of Appeals for the Federal Circuit under 28 U.S.C. §§
1292(c) and 1295(a). The Appeals Court then transferred the
appeal to the Federal Circuit pursuant to 28 U.S.C. § 1631.
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