| FCC and 3G |
8/9. The FCC adopted, but
did not release, a notice of proposed rulemaking regarding
reallocation of spectrum for use by Third Generation (3G)
wireless services. 3G is intended to bring broadband Internet
access to portable devices. The item is titled
"Memorandum Opinion and Order and Further Notice of
Proposed Rulemaking". The FCC seeks comment on
reallocating spectrum in the 1910-1930 MHz, 1990-2025 MHz,
2150-2160 MHz, 2165-2200 MHz, and 2390-2400 MHz bands. The FCC
did not release this MOO & NPRM at the meeting. Rather, it
released press
release, and Commissioners made statements. Commissioners
Powell, Copps, Abernathy, and Martin vote for the item;
Tristani dissented in part. See, ET Docket No. 00-258.
Chairman Michael
Powell stated that "the critical focus of the
Commission, in its efforts, increasingly are on increasing
capacity in the marketplace for new and advanced information
services, and Third Generation efforts are one of the critical
components on the wireless technology side.
The FCC adopted a NPRM on January 4, 2001, regarding use of
other spectrum bands, specifically, 1710-1755 MHz, 1755-1850
MHz, 2110-2150 MHz, 2160-2165 MHz and 2500-2690 MHz. Bruce
Franca, Acting Chief of the Office
of Engineering and Technology (OET), gave an introduction
to the January 4 NPRM. John Spencer, a Senior Attorney in the
Policy Division of the Wireless
Telecommunications Bureau summarized the new MOO &
NPRM. He stated that the 1910-1930 MHz band is currently
allocated for use by unlicensed personal communications
services (PCS). 1990-2025 and 2165-2200 MHz is used for mobile
satellite service (MSS); 2150-2160 MHz is used for multipoint
distribution service; and 2390-2400 MHz is used for amateur
radio and unlicensed PCS devices.
The Department of Defense, which uses spectrum in the
1755-1850 MHz band for a variety of national defense purposes,
opposes reallocation of this spectrum for 3G services.
Likewise, Instructional Television Fixed Service (ITFS) and
Multichannel Multipoint Distribution Service (MMDS) users,
which are allocated spectrum in the 2500-2690 MHz band, oppose
the reallocation of that spectrum. ITFS users include the
Catholic Television Network. MMDS users in this band include
Sprint, WorldCom, and CLECs that are deploying broadband data
and voice services in rural and other areas.
Is 2500-2690 MHz Off the Table? Chairman Powell stated
cryptically at the meeting that "I also wanted to note
that, an item of great controversy, the MMDS and ITFS
spectrum, is not covered in this item. But, I merely wanted to
announce that there is a companion item that we have every
intention of making an effort to have voted by the end of the
month that will state conclusively what the state of affairs
is with respect to those spectrum bands." Commissioner Gloria
Tristani read a dissent,
which also pertained to this band. She stated that "the
Commission should have also used this opportunity to lay to
rest the uncertainty surrounding the ITFS and mulitpoint MDS
operations in the 2500-2690 MHz (2.5 GHz) band."
More Background. On March 30, the FCC, which has
authority over the 2500-2690 MHz band, released its report [101
pages in PDF] titled "Final Report: March 30, 2001:
Spectrum Study of the 2500-2690 MHz Band: The Potential for
Accommodating Third Generation Mobile Systems". This
report concluded that this spectrum is being used to provide
important services, that it is already heavily licensed
throughout the country, that it would be technically difficult
to segment or share this spectrum, and that relocation could
cost between $10.2 and $30.4 Billion. See also, executive
summary. The NTIA,
which has spectrum management authority with respect to the
1755-1850 MHz band, released a similarly gloomy report
[169 pages in PDF] titled "The Potential for
Accommodating Third Generation Mobile Systems in the
1710–1850 MHz Band: Federal Operations, Relocation Costs,
and Operational Impacts". See also, executive
summary. |
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| DOJ Opposes Microsoft
Motion for Stay |
| 8/10. The Department of
Justice (DOJ) filed in the U.S. Court of Appeals (DCCir)
its opposition
to Microsoft's motion for stay pending its petition for writ
of certiorari. The opposition is titled "Appellee's
Response to Microsoft's Motion for Stay of the Mandate Pending
Petition for Writ of Certiorari." The DOJ asserted that
"Microsoft has little prospect of obtaining certiorari
review, let alone winning a reversal ..." On August 7,
Microsoft filed a Petition
for Writ of Certiorari with the Supreme Court, and
its motion
titled "Appellant's Motion for Stay of the Mandate
Pending Petition for Writ of Certiorari". |
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| New Documents |
Goodlatte:
speech
re security, privacy, encryption and export controls, 8/6
(HTML, TLJ).
DOJ:
opposition
to Microsoft's motion for stay, 8/10 (HTML, DOJ).
Cato:
policy
paper on privacy legislation and freedom of speech, 8/9 (PDF,
Cato).
BXA:
interim
final rule re EAR changes, 8/10 (HTML, FedReg). |
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| Privacy Legislation and
Freedom of Speech |
| 8/9. The Cato Institute
released a paper
[PDF] titled "Internet Privacy and Self-Regulation
Lessons from the Porn Wars," by Tom Bell. It argues that
"The same points that have helped strike down statutory
limits on Internet speech thought harmful to its readers
(because it is indecent or harmful to minors) argue against
enacting new statutory limits on speech thought harmful to its
subjects (i.e., privacy legislation). In both cases, self-help
offers Internet users a less-restrictive means of preventing
the alleged harms caused by free speech than does legislation.
In both cases, the alternative offered by digital self-help
makes regulation by state authorities not only
constitutionally suspect but, from the more general points of
view of policy and effectiveness, functionally inferior."
See also, executive
summary. Tom Bell is an associate professor at the Chapman University School
of Law and an adjunct scholar at the Cato Institute. |
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| Rep. Goodlatte Addresses
Internet Policy Issues |
8/6. Rep. Bob
Goodlatte (R-VA) gave a speech
regarding security, privacy, encryption and export controls.
He stated that "the Federal Government needs to ensure
that it plays an enabling and not an inhibiting role in
supporting the movement of industry and people into the
Information Age. It is critical that policy makers recognize
that the information technology industry has become a thriving
force in our economy because of the simple fact that it has
largely been left alone to develop and grow according to the
demands of free market processes."
Privacy. Rep. Goodlatte stated that "To its
credit, Congress is moving cautiously in considering privacy
legislation. The House Commerce Committee has held a
comprehensive series of online privacy hearings throughout the
year. I expect that some legislation will soon result from
those hearings." However, he added "It is more
likely that with the shift of power in the Senate, we will see
significant privacy legislation introduced and considered in
the Senate. Senator
Hollings, Chairman of the Senate Commerce
Committee, has made no secret of the fact that he is
currently putting together a comprehensive privacy bill. I
fear that Chairman Hollings' proposal will not achieve the
appropriate balance between regulation and freedom that we are
discussing today, but I will reserve judgment until I have
seen specific legislation."
Encryption. Rep. Goodlatte and Rep. Zoe Lofgren
(D-CA) co-sponsored the Security and Freedom through
Encryption (SAFE) Act in several previous Congresses. See, for
example, HR 850 IH
(106th Congress). It never became law. However, swelling
support for the bill lead the Clinton administration to adopt
rules significantly liberalizing encryption export laws. Rep.
Goodlatte stated that "Congress is continuing to monitor
the implementation of the new encryption regulations, to make
sure that they are allowing U.S. companies to fully compete in
the global marketplace by freely exporting strong encryption
products. Congress remains ready to act legislatively if the
regulatory process breaks down, but so far, that process seems
to be working effectively."
Export Administration Act. The EAA had been scheduled
to expire on August 20, but was just extended through November
20. Rep. Goodlatte stated that "This stop-gap
authorization should give both the House and Senate sufficient
time to consider various export reform legislation including
the 'Export Administration Act of 2001' (S. 149),
a comprehensive rewrite of the EAA, introduced by Senators Enzi and Gramm. An export reform
bill is likely to pass before the November deadline." He
added that "Any rewrite of the EAA should include the
following key ingredients: (1) streamlined procedures that
will lead to faster licensing decisions, shortening the review
time before technology products can be exported, and (2)
regarding high performance computers, moving away from MTOPS
to a system that looks at the technology as a whole and is
flexible with increases in technology." |
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| Export Administration
Regulations |
| 8/10. The Commerce Department's Bureau of Export Administration
(BXA) published in the Federal Register an interim
final rule that makes minor changes to the Export
Administration Regulations (EAR). The BXA's notice states that
it amends the EAR "by revising Country Group E:1 to
include all terrorist- supporting countries, and replacing
references to Cuba, Iran, Iraq, Libya, North Korea, Sudan and
Syria with Country Group E:1 where appropriate. This rule also
expands the scope of eligible countries for License Exception
TMP for exhibition and demonstration to all countries except
the new Country Group E:1, with certain restrictions. ... This
rule also expands the scope of eligible countries for License
Exception TMP for exhibition and demonstration by making
Country Group D:1 eligible for this provision. Under License
Exception TMP, you may now export or reexport commodities and
software for exhibition or demonstration in any country,
including countries in Country Group D:1 ..." This rule
is effective August 10, 2001. Comments on this rule must be
received on or before September 10, 2001. See, Federal
Register, August 10, 2001, Vol. 66, No. 155, at Pages 42108 -
42110. |
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| People and Appointments |
8/9. FCC Commissioner Kathleen
Abernathy announced at the August 9 FCC meeting that Jason
Scism will be her Special Assistant for congressional,
intergovernmental and industry relations. He is currently a
summer intern, and student at George Mason
University School of Law. He will continue his legal
studies at night. Prior to law school, he worked for the House Commerce Committee.
See also, FCC
release.
8/10. Rosalind Tyson was named Acting Regional Director
of the SEC's Pacific
Regional Office. She replaces Valerie Caproni, who
joined the law firm of Simpson Thacher &
Bartlett in May. Tyson is currently Associate Regional
Director for Regulation in the Pacific Regional Office, a
position she has held since 1993. See, SEC release.
8/9. Vera Elson joined the Silicon Valley office of the
law firm of McDermott Will &
Emery as a partner in its intellectual property group. She
represents high tech and other clients in intellectual
property litigation, and provides strategic counseling on
intellectual property matters. She also has masters degree in
electrical engineering. See, release.
8/7. Priscilla Dunckel joined the Dallas office of the
law firm of Baker Botts
as a partner in the intellectual property group, and head of
the Dallas trademark office. She will focus on trademark law,
as well as matters involving copyrights, trade secrets,
Internet law and the licensing of entertainment rights. She
was previously with Thompson
& Knight. She graduated from Southern Methodist
University law school in 1993. See, release.
8/8. Avanex Corporation
announced that Thomas LaWer has been promoted to VP and
General Counsel, and will be Secretary to the Board. LaWer
joined Avanex in 2000. Prior to that, he was an associate at
the law firm of Wilson Sonsini.
Avanex makes photonic processors for optical communications
networks. See, Avanex
release. |
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| Monday, August 20 |
| Deadline to submit comments to the Office of Science and
Technology Policy (OSTP) and the National Security Council (NSC)
in response to their notice
of proposed rule making regarding removing their
regulation on Emergency Restoration Priority Procedures for
Telecommunications Services. See, Federal Register, July 24,
2001, Vol. 66, No. 142, at Pages 38411 - 38412. |
|
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| Tuesday, August 21 |
| Deadline to submit comments to the FCC in response to its
Notice of Proposed Rulemaking (NPRM) regarding the concept of
a unified intercarrier compensation regime, including
reciprocal compensation, and alternative approaches such as
"bill and keep." See, notice
in Federal Register, May 23, 2001, Vol. 66, No. 100, at Pages
28410 - 28418. |
|
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| Decisions in Patent
Infringement Cases |
8/9. The U.S.
Court of Appeals (FedCir) issued its opinion in MSM
Investments v. Carolwood Corp., a patent
infringement case. MSM is the assignee of U.S.
Patent 5,071,878, which is titled "Use of
methylsulfonylmethane to enhance diet of an animal". MSM
filed a complaint in U.S. District Court (NDCal)
against several defendants alleging infringement of the '878
patent. Defendants moved for summary judgment of invalidity
under 35
U.S.C. § 102(b) based on public use more than one
year prior to the effective filing date of the ’878 patent.
The District Court granted summary judgment. The Appeals Court
affirmed.
8/9. The U.S.
Court of Appeals (FedCir) issued its opinion in Day
v. Reeves Brothers, a patent infringement case
involving newspaper printing technology. Day is the holder of U.S.
Patent No. 4,770,928. It relates to a method of
manufacturing compressible printing blankets used for printing
newspapers, magazines, and other products made using offset
lithographic printing methods. Printing blankets are used in
the printing industry to transfer ink from a printing plate to
paper. Reeves
Brothers manufactures compressible printing blankets. Day
filed a complaint in U.S. District Court (DSCar)
against Reeves Brothers alleging infringement of two claims of
the '928 patent. The District Court granted summary judgment
of non-infringement based upon its construction of the claims,
and under the doctrine of equivilents. The Appeals Court
affirmed. |
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| About Tech Law Journal |
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