|DC Cir Rules FCC Cannot
Cancel NextWave Licenses
|6/22. The U.S.
Court of Appeals (DCCir) issued its opinion
in NextWave v. FCC,
holding that the FCC is prevented from canceling NextWave's
spectrum licenses by the Bankruptcy Code. The decision will
further delay the use of this spectrum for wireless
communications services, including third generation services.
Background. NextWave obtained spectrum licenses at FCC
auctions in 1996. The FCC permitted NextWave to obtain the
licenses then, and later make payment under an installment
plan. NextWave was unable to make payments, and filed a
Chapter 11 bankruptcy petition. The FCC cancelled
the licenses, but was blocked by the bankruptcy court. The
U.S. District Court (SNDY)
affirmed. The U.S.
Court of Appeals (2nd Cir.) issued its order reversing and
remanding the case on Nov. 24, 1999; it issued its opinion
explaining its reversal in May 2000. The FCC then re-
auctioned this spectrum to Verizon Wireless and other
successful bidders, which intend to use it for third
generation wireless, and other, services.
Holding of the DC Circuit. Judge Tatel, writing for a
three judge panel, opined that the 2nd Circuit had not already
addressed NextWave's bankruptcy claims. He further wrote that
the FCC was prevented from canceling the spectrum licenses
pursuant to Section 525 of the Bankruptcy Code. He wrote that
the FCC "violated the provision of the Bankruptcy Code
that prohibits governmental entities from revoking debtors'
licenses solely for failure to pay debts dischargeable in
bankruptcy. The Commission, having chosen to create standard
debt obligations as part of its licensing scheme, is bound by
the usual rules governing the treatment of such obligations in
|Fast Track Debate
|6/21. Rep. Phil
English (R-PA) spoke in the House about HR
1446, the Standard Trade Negotiating Authority Act, which
he introduced on April 4, 2001. He stated that his bill
"allows for full and appropriate consideration of labor
and environmental issues as important trade agreements are
negotiated." He added that it "ensures that no
country could engage in a race to the bottom in order to lure
jobs by sacrificing the environment or debasing the common
rights of its citizens."
|WTO Issues Report on FSC
|6/22. The USTR released a statement
regarding the U.S. Foreign Sales Corporation (FSC) tax regime,
and EU challenges to legality before the World Trade Organization (WTO).
He stated: "A panel of the World Trade Organization has
issued a confidential interim report today on the FSC Repeal
and Extraterritorial Income Exclusion Act of 2000, the law
which replaced the Foreign Sales Corporation provisions of
U.S. tax law. The report will be distributed on a confidential
basis to the United States and the European Union, who will
have the opportunity to submit written comments on the report
to the panel. The WTO panel is scheduled to issue its final
report in July, and the report will be made public in August.
The United States will respect the confidential nature of the
report and will not comment on its findings, nor its
implications, at this time."
in NextWave v. FCC, 6/22 (HTML, USCA).
2259, the Community Technology Assistance Act, 6/20 (HTML,
|Quote of the Day
|"... allowing NextWave to retain its licenses may be
"grossly unfair" to losing bidders and licensees who
"complied with the administrative process and forfeited
licenses or made timely payments despite their financial
difficulties." ... Any unfairness, however, was inherent
in the Commission's decision to employ a licensing scheme that
left its regulatory actions open to attack under Chapter 11 of
the Bankruptcy Code ... nothing in the Act required the
Commission to choose the licensing scheme at issue here."
U.S. Court of Appeals (DCCir), opinion
in NextWave v. FCC, June 22.
|9th Circuit Nominations
|6/22. President Bush formally nominated Richard Clifton
to be a United States Circuit Judge for the Ninth Circuit. He
is a partner in the litigation
department of Cades Schutte
Fleming & Wright, in Honolulu, Hawaii. His practice
focuses on antitrust counseling and litigation, financial
institution litigation, securities litigation, and
arbitrations. He is also general counsel of the
Republican Party of Hawaii. See, Cades bio
6/22. President Bush formally nominated Carolyn Kuhl to
be a United States Circuit Judge for the Ninth Circuit. She is
a Los Angeles County Superior Court Judge; she was appointed
by former Gov. Pete Wilson. Prior to that, she was a partner
at the law firm of Munger
Tolles & Olson. Before that, she worked in the Reagan
administration as Special Assistant to Attorney General
William French Smith, Deputy Assistant Attorney General in the
Civil Division, and Deputy Solicitor General. Sen. Barbara Boxer (D-CA),
who may attempt to block Kuhl's confirmation, stated in a release
that "I am continuing to evaluate this nomination."
|Antitrust Panel Discusses
|6/22. The Progress and Freedom
Foundation (PFF) hosted a panel discussion on antitrust
law and policy in the Rayburn House Office Building in
Washington DC. The panel was comprised of Jeffrey
Eisenach (PFF), Ken Starr (Kirkland & Ellis), Robert
Atkinson (Progressive Policy Institute), Albert Foer
(Antitrust Institute), and Makan Delrahim (Sen. Hatch).
Makan Delrahim, who is the Republican Staff Director for the
Senate Judiciary Committee, stated that just there was an
injection of economic analysis into antitrust law in recent
decades, "it may be time for a new injection of technical
expertise" into antitrust law.
Bob Atkinson, of the Progressive
Policy Institute, a Democratic think tank, stated that
antitrust enforcement should focus on collusion by middlemen
who prevent to development of e-commerce. He cited auto
dealers who seek to prevent Internet auto sales as an example.
He also stated that online exchanges, such as Covisant and Orbitz, pass antitrust
Ken Starr, whose firm presents ProComp, an anti Microsoft
group, stated that "the government is going to stay the
course" in the Microsoft case. He also criticized
Microsoft's forthcoming XP technology. He stated that with XP
Smart Tags "Microsoft can re-edit anyone's site." He
also said that XP "should be examined through the lens of
traditional antitrust law." The PFF did not include a
Microsoft proponent on the panel.
|6/21. The ICANN
announced that Theresa Swinehart will join ICANN as its
Counsel for International Legal Affairs. She previously worked
as Associate Counsel, and in other positions, at MCI
WorldCom in Washington DC. See, ICANN
6/20. David Priebe joined the Palo Alto office of the
law firm of Gray Cary Ware
& Freidenrich as Special Counsel in the firm's
securities litigation practice. He previously worked at Wilson Sonsini Goodrich &
Rosati. He defends technology companies in securities
litigation. See, release.
6/21. Floyd Chapman and David Kulik joined the
Washington DC office of the law firm of Wiley Rein & Fielding as a
partner and of counsel, respectively, in the firm's
intellectual property practice. Both were formerly with the
Washington DC office of the law firm of Brobeck Pheleger & Harrison.
6/22. The Federal Election
Commission extended the temporary appointment of Acting
General Counsel Lois Lerner until September 15,
2001." See, release.
|Tax Deductions for Donated
|6/20. Rep. John
Lewis (D-GA) and others introduced HR
2259, the Community Technology Assistance Act, a bill to
amend the Internal Revenue Code to expand the enhanced
deduction for corporate donations of computer technology to
senior centers and community centers. It was referred to the House Ways and Means
6/21. Rep. William
Jefferson (D-LA) and others introduced HR 2281, a bill to
amend the Internal Revenue Code to extend and expand the
enhanced deduction for charitable contributions of computers.
It was referred to the House Ways and Means
|Monday, June 25
|10:00 AM. The U.S.
International Trade Commission will hold a Section 337
evidentiary hearing regarding "Certain Field Programmable
Gate Arrays and Products Containing Same." This is a
matter in which Xilinx is
the complainant and Altera
is the respondent. See also, notice of
investigation. (Inv. No. 337-TA-441.) Location: Courtroom
B, ITC Building, 500 E Street SW, Washington DC.
12:00 NOON - 3:00 PM. National
Science Foundation's Advisory Committee for
Cyberinfrastructure will hold a meeting. There will be open
teleconferencing. Persons who plan to attend should contact
Richard Hilderbrandt at 703-292-7093 or firstname.lastname@example.org. See, notice
in Federal Register. Location: Room 320, National Science
Foundation, 4201 Wilson Blvd., Arlington, VA.
|Tuesday, June 26
|9:30 AM. The Senate
Commerce Committee will hold a hearing on several
nominations, including that of Samuel Bodman to be
Deputy Secretary of Commerce; Location: Room 253, Russell
10:00 AM - 12:00 NOON. The House Science Committee's
Subcommittee on Research will hold a hearing titled Reinventing
the Internet: Promoting Innovation in IT. Location: Room
2318, Rayburn Building.
10:00 AM - 12:00 NOON. The FCC's Network Reliability and
Interoperability Council will meet. Location: FCC, 445 12th
Street, SW, Room TW-C305, Washington, DC.
12:00 NOON - 2:00 PM. The American
Enterprise Institute (AEI) will host a panel discussion
titled "Free Trade vs. States' Rights: Globalization and
the Challenges to Local Democratic Government." The
panelists will be Michael Greve (Federalism Project), Mark
Gordon (Columbia University), David Aaron (Dorsey &
Whitney), and Earl Fry (Brigham Young University). Location:
Wohlstetter Conference Center, Twelfth Floor, AEI, 1150 17th
Street, NW, Washington DC.
2:30 PM. The House
Judiciary Committee's Subcommittee on Commercial and
Administrative Law will hold a hearing on HR 1552 and HR 1675,
both of which are titled the "Internet Tax
Nondiscrimination Act." Location: Room 2141, Rayburn
6:30 - 8:30 PM. The Federal
Communications Bar Association will host a CLE Seminar
titled Music Licensing and the Internet. The first
panel will focus on the issues involved in the Napster
litigation. The second panel will focus on the on the new
music licensing right when webcasters stream music over the
Internet. For more information, contact Arlice Johnson at email@example.com. Location: Wiley Rein & Fielding, 10th
Floor Conference Room, 1750 K Street, NW, Washington DC.
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