Tech Law Journal Daily E-Mail Alert
August 13, 2001, 9:00 AM ET, Alert No. 247.
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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 17101850 MHz Band: Federal Operations, Relocation Costs, and Operational Impacts". See also, executive summary.
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".
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).
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.
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."
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.
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.
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.
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.
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.
8/10. The ICANN issued a Second Advisory Concerning Equitable Allocation of Shared Registration System Resources.
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