|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
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
|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
|FCC Hires From Antitrust
|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 MissionFish.com.
|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.
Investigations and Impossibility
|5/14. The U.S.
Court of Appeals (5thCir) issued its opinion
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
Editor's Note: Tech Law Journal intentionally misspells words
that have caused e-mail servers to block e-mail from Tech Law
Journal in the past.
|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,
|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
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
|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
copy in CO web site.
|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.
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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