Tech Law Journal Daily E-Mail Alert
May 15, 2001, 8:00 AM ET, Alert No. 187.
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FCC General Counsel
5/14. FCC Chairman Michael Powell named Jane Mago and John Rogovin to be the General Counsel and Deputy General Counsel of the FCC. Mago has been with the FCC since 1978, and has been Acting General Counsel since the departure of Bill Kennard's General Counsel, Chris Wright, in January. Prior to that she was a Deputy Chief of the Enforcement Bureau. She has held numerous other positions at the FCC, including Senior Legal Advisor to then Commissioner Powell. See, FCC release.
Rogovin was previously a partner in the telecommunications group in the Washington DC office of the law firm of O'Melvany & Myers. Prior to that, he was a Deputy Assistant Attorney General in the Civil Division of the Reno Justice Department, where he supervised the Federal Programs Branch. Among the functions of the Federal Programs Branch is to assist and represent federal government departments that do not comply with the Freedom of Information Act. Rogovin was also lead counsel in AAPS v. Hillary Clinton, in which he defended the secret proceedings of Hillary Clinton's Health Care Task Force.
The primary responsibilities of the Office of General Counsel are to provide legal advice to the FCC, and to defend the orders of the FCC. These are particularly important tasks at the FCC, for three reasons. First, some of the language in the statutes conferring authority upon the FCC is not drafted with clarity. Second, even when the statutory language is clear, the FCC often issues orders which exceed or contravene its authority. Finally, even when the statute is clear, and the FCC follows the statute, aggressively litigious companies and groups regulated by the FCC still bring legal challenges to its orders.
Enforcement Bureau Appointments
Linda Blair was appointed Associate Chief of the FCC's Enforcement Bureau; Lisa Fowlkes was appointed Assistant Bureau Chief. Blair joined the FCC in 1988. She has previously been Chief of the Mass Media Bureau's Audio Services Division. Fowlkes was Legal Advisor to the Chief of the Enforcement Bureau on mass media and other non-common carrier-related enforcement issues. Prior to joining the Enforcement Bureau, she was an attorney in the Washington DC office of the law firm of Verner Liipfert. And before that, she worked at the FCC. See, FCC release.
FCC Hires From Antitrust Division
5/14. William Spencer was appointed Deputy Managing Director of the FCC. Previously, Spencer was Chief of the Budget and Fiscal Unit in the Antitrust Division of the Department of Justice (DOJ). Chairman Powell was Chief of Staff of the Antitrust Division prior to being appointed an FCC Commissioner. The FCC, under the Chairmanship of Bill Kennard, and continuing with the Chairmanship of Michael Powell, assumes that it has antitrust merger review authority, redundant of the statutory authority held by the DOJ and FTC.
More FCC Appointments
5/14. Martha Johnston was appointed Director of the FCC's Office of Legislative and Intergovernmental Affairs. She was previously Associate Director for Public Affairs with the Association of Trial Lawyers of America. Dane Snowden was appointed Chief of the FCC's Consumer Information Bureau. She was previously a VP at
New Documents
USPTO: Annual Report, 5/14 (PDF, USPTO).
ICANN: Proposed Budget -- FY 2000-1, 5/14 (HTML, ICANN).
USCA: opinion in US v. Farner re online undercover investigations and the defense of impossibility, 5/14 (HTML, USCA).
Patent Cases
5/14. The U.S. Court of Appeals (FedCir) issued its opinion in Tegal v. Tokyo Electron America, an appeal from a contempt order issued for violation of an injunction in a patent infringement action. Tegal filed a complaint in U.S. District Court (EDVa) against Tokyo Electron America (TEA) alleging infringement of its U.S. Patent No. 4,464,223, which relates to plasma etching equipment that is used in fabricating semiconductor chips. The District Court found that TEA had willfully infringed the '223 patent, and issued an injunction against further infringement. Tegal then alleged the TEA violated the injunction by facilitating the infringing activity by a company that is a subsidiary of a subsidiary of TEA's parent corporation. The District Court found that the injunction had been violated, and issued the contempt order, which is the subject of this appeal. The Appeals Court reversed, on the basis that there was no evidence that TEA had violated the injunction. The Appeals Court reasoned that facilitation "entails some affirmative act; it is not enough to show that TEA failed to take steps to prevent its corporate affiliates from servicing the IEM etchers. In the absence of a showing of control over another party, merely permitting that party to commit infringing acts does not constitute infringement, and it likewise cannot constitute 'facilitating infringing acts.' "
5/14. The U.S. Court of Appeals (FedCir) issued its opinion in Biotec Biologisch Naturverpackungen v. Biocorp and Novamont, a patent infringement case. Biotec filed a complaint in U.S. District Court (CDCal) against Biocorp and Novamont alleging infringement of its U.S. Patents Nos. 5,362,777 and 5,280,055, which pertain to biodegradable starch based products. The District Court ruled on summary judgment that the patents are valid and enforcable. The jury returned a verdict finding the defendants liable for infringement or inducement of infringement, but not willful infringement. Following final judgment, the defendants appealed, and plaintiff cross appealed the finding of no willful infringement. The Appeals Court affirmed.
Online Undercover Investigations and Impossibility
5/14. The U.S. Court of Appeals (5thCir) issued its opinion in USA v. Farner, a case rejecting the defenses of factual and legal impossibility in a case involving use of the Internet to attempt to entice a minor to engage in illegal sezual activity. Defendant Farner used e-mail and instant messaging to solicit sez from an undercover FBI agent who represented to him that she was 14 years old. Farner believed the FBI agent to be 14 years old, and arranged a meeting with her, where he was arrested. He was charged with violation of 18 U.S.C. § 2422(b). He stipulated to evidence, and waived jury trial. The District Court found him guilty. He moved for judgment of acquittal, based on the defense of impossibility. The District Court ruled factual impossibility is not a defense if the crime could have been committed had the attendant circumstances been as the defendant believed them to be; and, the defendant thought the FBI agent was 14. The Appeals Court affirmed. It questioned whether factual and legal impossibility are distinguishable, as well as the continuing viability of the defense. However, the Appeals Court ruled that to overcome a defense of impossibility there must be proof of two elements. First, the defendant acted with the kind of culpability otherwise required for the commission of the underlying substantive offense. Second, the defendant had engaged in conduct which constitutes a substantial step toward commission of the crime.
A ruling for the defendant in this case would have undermined the FBI's Innocent Images program, as well as other online undercover investigations. David Knowlton, Principal Deputy Assistant Director of the FBI's Criminal Investigative Division testified to the House Judiciary Committee's Crime Subcommittee on July 13, 2000. He stated: "In 1995, the FBI began an undercover investigation, code named 'Innocent Images,' focusing on persons who, through the use of on-line computers, indicate a willingness to travel for the purposes of engaging in sezual activity with a child and those persons who use the Internet or other on-line services to disseminate original images of child pormography ... Since 1995, the FBI has investigated more than 790 cases involving persons traveling interstate to meet minors for the purposes of engaging in illicit sezual relationships and more than 1850 cases involving persons trading child pormography." See, prepared testimony.
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The House will meet at 12:30 PM for morning hour and at 2:00 PM for legislative business. The House may take up HR 1727, the Fallen Hero Survivor Benefit Act of 2001, and HR 586, the Foster Care Promotion Act, under a suspension of the rules (no amendments, and requires a 2/3 majority for passage). There will be no votes before 6:00 PM.
9:30 AM. The U.S. Court of Appeals (DC Cir) will hear oral argument in U.S. Cell Corp. v. FCC, Appeal No. 00-1072. Judges Henderson, Tatel and Garland will preside.
9:30 AM - 5:00 PM. The U.S. Copyright Office will hold a public roundtable discussion on the intellectual property aspects of the preliminary draft Convention on Jurisdiction and Foreign Judgments in Civil and Commercial Matters being negotiated by the Hague Conference on Private International Law. See, notice in Federal Register. Location: Library of Congress, John Adams Building, Room LA-202, 110 Second Street, SE, Washington DC.
10:00 AM. The Senate Judiciary Committee will hold a hearing on "high technology patents, relating to business methods and the Internet." Location: Room 226, Dirksen Building.
10:00 AM. The Senate Banking Committee will hold a meeting. The agenda includes a vote on the nomination of James Jochum, to be Assistant Secretary of Commerce for Export Administration.
2:00 PM. The House Judiciary Committee's Subcommittee on Immigration and Claims will hold a hearing titled "INS and the Executive Office for Immigration Review." Location: Room 2237, Rayburn Building.
Wednesday, May 16
9:30 AM. The Senate Commerce Committee will hold a hearing on nominations to the FTC and the Department of Commerce. Location: Room 253, Russell Building. The agenda includes the following:
 • Timothy Muris to be Chairman of the FTC.
 • Kathleen Cooper to be Under Secretary of Commerce for Economic Affairs.
 • Bruce Mehlman to be Assistant Secretary of Commerce for Technology Policy.
 • Sean O'Hollaren to be Assistant Secretary for Governmental Affairs.
1:30 PM. The Senate Finance Committee will hold a confirmation hearing for many nominees, including Linnet Deily and Peter Allgeier to be Deputy USTRs. Location: Room 215, Dirksen Building. See, release [PDF].
Copyright Term Extension
5/14. The Copyright Office (CO) published final rule changes in the Federal Register regarding extended renewal terms. The CO is making technical amendments in the regulation regarding copyright renewal to reflect the modification in duration of the extended renewal term from 47 years to 67 years as a result of the Sonny Bono Copyright Term Extension Act. See, Federal Register, May 14, 2001, Vol. 66, No. 93, at Pages 24267 - 24268. See also, PDF copy in CO web site.
More News
5/14. The USPTO published in its web site its FY 2000 USPTO Annual Report.
5/14. The Supreme Court of the U.S. denied certiorari in Metro Communications Co. v. Ameritech Corp., No. 00-1432. See, Order List [PDF] for May 14, 2001, at page 4.
5/14. Negotiations continued on Monday between the U.S. Commerce Department, VeriSign, and the ICANN over renewal of VeriSign's contract to manage the .com and .net domains.
5/14. ICANN published in its web site its Proposed Budget -- Fiscal Year 2000-2001.
5/14. The U.S. Chamber of Commerce promoted Michael Magán to VP and Deputy Chief of Staff in the Chamber's Executive Office. See, release.
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