| Ninth Circuit Rules on
Cable Companies' Use of Private Easements |
8/17. The U.S.
Court of Appeals (9thCir) issued its opinion
[PDF] in Cable
Arizona v. Coxcom, a case regarding the right
of companies that provide cable TV (and broadband Internet
access) to access private easements in order to connect to
customers in apartment buildings. The Ninth Circuit joined
several other circuits in finding no such right.
Facts. Cable Arizona (which is also known as CableAmerica) is one
franchised cable TV service provider in Mesa, Arizona. CoxCom
Inc. (a Cox Communications
company) is another. Both provide cable TV and broadband
Internet access. Feiga Partners, an owner of apartment
buildings, granted CoxCom private easements to offer cable
service to residents of its apartment buildings. CableAmerica
(CA), which had previously contracted with Feiga, wanted
continued access to the property owned by Fiega.
District Court. CA filed a complaint in Arizona state
court against CoxCom, Fiega and others alleging that they
violated the Communications Act of 1934, as amended, as well
as other causes of action. CoxComm removed the case to the U.S.
District Court (DAriz). Specifically, CA alleged violation
of 47
U.S.C.§ 541(a)(2), which gives cable franchisees the
right to construct a cable system "over public
rights-of-way, and through easements, . . . which have been
dedicated for compatible uses". The District Court held
for Defendants.
Appeals Court. The Appeals Court affirmed. Judge Rymer,
writing for a three judge panel, concluded that Section 541
"does not allow CableAmerica access to a private
apartment complex through easements granted to other cable
providers." The Court also noted that several other
circuits have interpreted the statute in the same manner. See,
TCI of North Dakota v. Schriock Holding Co., 11 F.3d 812 (8th
Cir. 1993); Media General Cable of Fairfax v. Sequoyah
Condominium Council, 991 F.2d 1169 (4th Cir. 1993); Cable
Holdings of Georgia v. McNeil Real Estate Fund VI, 953 F.2d
600 (11th Cir.), cert. denied, 506 U.S. 862 (1992); and Cable
Invs., Inc. v. Woolley, 867 F.2d 151 (3d Cir. 1989). |
|
|
| Appeals Court Denies
Microsoft Motion for Stay |
8/17. The U.S. Court
of Appeals (DCCir) issued an order
[PDF] denying Microsoft's August 7 motion
for stay of mandate pending petition
for writ of certiorari to the Supreme Court of the U.S.
The court wrote that "In order to obtain a stay of the
mandate pending its petition for certiorari, Microsoft must
show that the "petition would present a substantial
question and that there is good cause for a stay." See
Fed. R. App. P. 41(d)(2)(A); see also D.C. Cir. Rule 41(a)(2)
(movant for stay of mandate must provide "facts showing
good cause for the relief sought"). For the reasons
stated in the appellees’ response to the motion for stay, it
appears that Microsoft has misconstrued our opinion,
particularly with respect to what would have been required to
justify vacating the district court’s findings of fact and
conclusions of law as a remedy for the violation of 28 U.S.C.
§ 455(a). We need not decide, however, whether Microsoft’s
objections constitute a "substantial question"
likely to lead to Supreme Court review, because Microsoft has
failed to demonstrate any substantial harm that would result
from the reactivation of proceedings in the district court
during the limited pendency of the certiorari petition." |
|
|
| Federal Circuit Affirms in
Verizon v. Covad |
| 8/17. The U.S.
Court of Appeals (FedCir) issued its opinion in Verizon
v. Covad, a patent infringement case
involving DSL technology. Verizon
is the owner of U.S.
Patent No. 5,812,786 titled "Variable rate and
variable mode transmission system". Covad is a competitor that
provides DSL service. Verizon filed a complaint in U.S.
District Court (EDVa)
against Covad and others alleging infringement of the '786
patent. The District Court determined that certain limitations
required by claims 1 and 21 of the '786 patent are not present
in Covad's DSL systems either literally or under the doctrine
of equivalents, and granted Covad's motion for summary
judgment of noninfringement. The Appeals Court affirmed. |
|
|
| Oracle Acquires Interactive
Market Management System Patent |
| 8/17. Oracle acquired
Strategic Processing Corp. (SPC) and its U.S.
Patent No. 4,799,156. The patent is titled
"Interactive market management system". It discloses
a "system for interactive on-line electronic
communications and processing of business transactions between
a plurality of different types of independent users including
at least a plurality of sellers, and a plurality of buyers, as
well as financial institutions, and freight service
providers." The patent application was filed in 1986 by
Eyal Shavit and Lester Teichner, and assigned to SPC. The
patent was granted in 1989. Oracle, based in Redwood City,
California, sells database management system software, and
related software and consulting and support services. See, Oracle
release. |
|
|
| New Documents |
USCA:
opinion
re cable companies' access to private easements, 8/17 (PDF,
USCA).
Bush:
executive
order re export controls, 8/17 (HTML, WH).
Bush:
Executive
Order extending the Export Administration Act, 8/17 (HTML,
WH).
Geist:
study
of ICANN's UD, 8/20 (PDF, UOttawa).
Caspian:
study
of Internet traffic, 8/16 (PowerPoint, Caspian).
FCC: order
granting extension under CALEA, 8/15 (PDF, FCC).
USCA:
order
denying Microsoft's motion for stay pending petition for writ
of certiorari, 8/17 (PDF, USCA). |
|
|
|
| Study of Internet Traffic
Shows Competition and Growth |
8/15. Caspian
Networks, an Internet infrastructure company, released a study
[PowerPoint] of Internet traffic. It found a high level of
competition, and a large number of competitors. It found that
"19 companies make significant contributions to core
traffic, yet the top 4 service providers carry 50% of the
Internet’s traffic". This may be relevant to regulators
who conduct antitrust merger reviews at the Department of
Justice's Antitrust Division, at the Federal Trade
Commission's Bureau of Competition, and at the Federal
Communications Commission. The study concluded that "The
large number of ISPs suggests high potential for consolidation
within the industry". See also, CN
release [HTML].
Caspian Networks (CN) stated that this is the first scientific
study of network traffic since the NSF's 1996 study. It
conducted confidential surveys of the 19 largest tier 1 ISPs
in the U.S.
The study also found that despite the economic troubles of dot
com companies, "the Internet is not shrinking, nor does
it appear to be slowing yet in its growth". It asserts
that the speculation by some analysts and journalists that the
Internet traffic has shrunk are wrong. The study measured
"The IP backbone carrying potential, as well as
utilization, of the 19 largest tier 1 U.S. Internet service
providers". It found that "Trunk ports grew from 800
Gbps in April, 2000 to 3 Tbps in April, 2001" and that
"Utilization stayed the same, approximately 40%"
The study also examined what makes up this traffic. It found
that very little traffic is accounted for by dot com
companies. Rather, "Companies in the U.S. are beginning
to realize they must move traffic to the Internet in order to
stay competitive." It also found that "Personal
broadband doesn’t significantly affect overall IP data rates
at the core" and that "Personal traffic represents a
small percentage of Internet traffic overall (approx.
20%)." |
|
|
| Law Prof Releases Study
Criticizing Domain Name Dispute System |
8/20. Michael Geist,
a law professor at the University
of Ottawa, released a study [PDF]
titled "Fair.com?: An Examination of the Allegations of
Systemic Unfairness in the ICANN UDRP." The paper
examines the first 3,000 plus cases decided under the Internet Corporation for Assigned
Names and Numbers’ Uniform Domain Name Dispute
Resolution Policy. Among the conclusions are that complainants
usually win, three judge panels are less likely to rule for
the complainant that one judge panels, forum shopping is
common, assignment of judges is not random, and ICANN must
reform the system.
Forum Shopping. Three bodies have been accredited to
resolve domain name disputes. Geist found that forum shopping
exists. He wrote that "The two ICANN- accredited
providers with the most favorable outcomes for complainants (WIPO
and the National Arbitration Forum (NAF)) quickly captured the
lion’s share of the caseload at the expense of eResolution,
the least complainant- friendly of the major ICANN- accredited
providers. Furthermore, forum shopping has continued to
increase over time."
Single v. Three Judge Panels. Geist found that
"The data shows that when providers control who decides a
case – which they do for all single panel cases --
complainants win just over 83 percent of the time. When
provider influence over panelists diminishes – which occurs
in three-member panel cases since in these cases both the
complainant and respondent choose one of the panelists as well
as exercise some influence over the choice of the third member
of the panel -- the complainant winning percentage drops to 60
percent."
Geist concludes that "This study provides compelling
evidence that forum shopping has become an integral part of
the UDRP and that the system may indeed be biased in favor of
trademark holders." |
|
|
| Vitech Files Chapter 11
Petition |
8/17. Vitech America, Inc.
filed a Chapter 11 petition for bankruptcy in U.S. Bankruptcy Court (SDFl).
Vitech America is based in Miami, Florida. Through its
Brazilian subsidiary, Microtec, it makes PC, servers,
peripherals, networking products, software, and related items.
Microtec did not file.
On March 9, 2001, Vitech filed a complaint in U.S. District
Court (SDFl) against Gateway, Inc. alleging fraud, negligent
misrepresentation and breach of contract. Gateway provided
funding and operational support to Vitech. |
|
|
| Patent Offices Plan for XML
Patent Applications |
| 8/17. The U.S. Patent and
Trademark Office (USPTO) announced that "The USPTO,
the European Patent Office (EPO), the Japan Patent Office (JPO),
and the World Intellectual Property Organization (WIPO), are
jointly developing document- type definitions (DTDs) for use
with the electronic filing of Patent Cooperation Treaty (PCT)
applications. When finalized in 2001 December, these DTDs will
enable applicants to create extensible- markup language (XML)
international patent applications that can be processed by
machine." See, WIPO's current
draft of PCT DTDs and draft
legal framework. See also, USPTO
release. |
|
|
| Securities Fraud |
| 8/14. The U.S.
District Court (NDCal) appointed a receiver for
PackSwitch.com. The SEC filed a civil complaint on July 9,
2001, against PacketSwitch.com and its founder and former CEO,
Steven Ristau, alleging fraud by claiming that the company had
a proprietary technology for broadcasting movies wirelessly
over the Internet. See, SEC
release. |
|
|
|
| Bush Extends Export
Administration Act |
8/17. President Bush issued an Executive
Order extending the Export Administration Act (EAA). The
EAA was scheduled to expire on August 20. President Bush
wrote: "I ... find that the unrestricted access of
foreign parties to U.S. goods and technology and the existence
of certain boycott practices of foreign nations, in light of
the expiration of the Export Administration Act of 1979, as
amended ... constitute an unusual and extraordinary threat to
the national security, foreign policy, and economy of the
United States and hereby declare a national emergency with
respect to that threat." Congress is in the process of
drafting and debating legislation to modernize and extend the
export control regime; however, it has been delayed by
opposition from Sen.
Fred Thompson (R-TN) and others. President Bush's
extension was expected.
The Senate bill, S
149, sponsored by Sen.
Mike Enzi (R-WY), is a major overhaul of export control
laws. It passed the Senate
Banking Committee on March 22, 2001 by a vote of 19 to 1.
It would ease restraints on the export of most dual use
products, such as computers and software. However, it would
raise penalties for violation of remaining prohibitions. It
would also repeal provisions of the 1998 National Defense
Authorization Act which require the President to use MTOPS
to set restrictions on the export of high performance
computers. However, this faces opposition in the Senate from
Sen. Fred Thompson (R-TN), Sen. John Warner (R-VA), and Sen.
Richard Shelby (R-AL). Sen.
Majority Leader Tom Daschle (D-SD) announced just before
the beginning of the August recess that as soon as the Senate
returns after Labor Day it will hold several days of debate on
S 149.
Similarly, on August 1, the House International Relations
Committee approved HR
2581, also titled the "Export Administration Act of
2001", sponsored by Rep. Benjamin Gilman
(R-NY), by a vote of 26 to 7. |
|
|
| FCC Grants CALEA Extension |
8/15. The FCC released an
order
[PDF] that grants wireline carriers' petition for an extension
under CALEA,
Section 107(c). This proceeding is "In the Matter of The
Communications Assistance For Law Enforcement Act (CALEA),
Section 107(c) Extension of Capability Requirements", CC
Docket No. 97-213.
Wireline telecommunications carriers filed petitions with the
FCC seeking extensions of the deadline for complying with the
capability requirements of Section 103 of the CALEA. The FCC
ordered that "pursuant to sections 4(i) and 4(j) of the
Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i)
and 154(j), and sections 107(c) of the Communications
Assistance for Law Enforcement Act, 47 U.S.C. § 1006(c), the
carriers listed in the Appendix attached to this Order are
HEREBY GRANTED AN EXTENSION of the compliance date of the
assistance capability requirements of section 103 of CALEA, 47
U.S.C. §1002(a)(1)-(4), until the dates agreed to by the FBI
as set forth in each carrier's individual FBI support
letter." |
|
|
| 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. |
|
|
| Bush Picks Stephens for
Associate AG |
8/17. President Bush announced his intent to nominate Jay
Stephens to be Associate Attorney General at the U.S. Department of Justice. The
Office of the
Associate Attorney General oversees the key divisions and
offices which administer civil laws, including the Antitrust Division, Civil
Division, Tax Division, Civil Rights Division, and Environment
and Natural Resources Division.
Stephens is currently a VP and Deputy General Counsel of Honeywell International.
Honeywell is best known for its aerospace products. However,
it also makes materials that are used in semiconductor
manufacturing, electronic components, and high density
multi-layer printed circuit boards. Prior to working for
Honeywell, Stephens was a partner in the Washington DC office
of the law firm of Pillsbury Madison and Sutro (now Pillsbury Winthrop).
Prior to that he was U.S. Attorney for the District of
Columbia (1988 - 1993) and Deputy Counsel to the President
(1986 - 1988). |
|
|
| More People and
Appointments |
8/17. Phil Perry will continue as Acting Associate
Attorney General pending confirmation of Jay Stephens by the
Senate. See, White
House release.
8/17. President Bush announced his intent to nominate Richard
Clarida to be Assistant Secretary of the Treasury for
Economic Policy. Clarida is currently Chairman of the Department of
Economics at Columbia University, where he has been a
professor since 1988. See, White
House release and Clarida's
Columbia bio. |
|
|
| About Tech Law Journal |
Tech Law Journal is a free access web site and e-mail alert
that provides news, records, and analysis of legislation,
litigation, and regulation affecting the computer and Internet
industry. This e-mail service is offered free of charge to
anyone who requests it. Just provide TLJ an e-mail address.
Number of subscribers: 1,968.
Contact: 202-364-8882; E-mail.
P.O. Box 15186, Washington DC, 20003.
Privacy
Policy
Notices
& Disclaimers
Copyright 1998 - 2001 David Carney, dba Tech Law Journal. All
rights reserved. |
|
|