Tech Law Journal Daily E-Mail Alert
October 25, 2001, 9:00 AM ET, Alert No. 294.
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House Passes Anti Terrorism Bill
10/24. The House passed the anti terrorism bill by a vote of 357 to 66 on Wednesday morning, October 24. See, Roll Call No. 398. The Senate is likely to take up the bill on Thursday morning, October 25.
President Bush released a statement in which he said that "I am pleased Congress has reached an agreement on counter terrorism legislation that will give our law enforcement officials the tools and resources necessary to disrupt, weaken, and defeat terrorists. I look forward to signing this strong bipartisan plan into law so that we can combat terrorism and prevent future attacks." See also, statement by Sen. Patrick Leahy (D-VT). 
8th Circuit Rules in Service Mark and Domain Case
10/24. The U.S. Court of Appeals (8thCir) issued its unpublished opinion [PDF] in Purdy v. Burlington Northern Sante Fe, a dispute over use of the service mark "BNSF" and related domain names. William Purdy is an angry former employee of Burlington Northern Railroad, which subsequently merged with the Sante Fe Railway, in 1994. It incorporated in Delaware as BNSF Corp. Meanwhile, in 1993, Purdy started using the service mark, "BNSF," as an abbreviation for "Bringing Now Safety First," to promote railroad safety. He formed Minnesota and North Dakota corporations named BNSF Corp.
In 1996, the USPTO granted Purdy use of the service mark "BNSF." In 1998, the U.S. District Court (Tex) ordered the service mark void ab initio and ordered the USPTO to cancel the registration. The U.S. Court of Appeals (5thCir) affirmed.
Purdy then brought this action in U.S. District Court (DMinn) to determine his rights to the service mark "BNSF" under common law. The District Court granted partial summary judgment to the railroad, on the grounds that it had made the first bona fide use of the mark. It held that Purdy's use in commerce was was sporadic, de minimus, and not directed at a relevant purchasing public. It also transferred ownership of Purdy's domain names to the railroad, and permanently enjoined Purdy from using the "BNSF" mark in any web site. (Purdy's bnsfcorp.com web site is still online.) The Appeals Court affirmed.
HP Bids $750 Million to Purchase Comdisco's Availability Solutions
10/24. Hewlett Packard (HP) announced that it has submitted a bid of $750 Million to purchase substantially all of the assets of Comdisco's Availability Solutions (AS) operations. On October 22, the Department of Justice (DOJ) filed a civil complaint in U.S. District Court (DDC) against SunGard and Comdisco seeking to block SunGard's purchase of Comdisco's Availability Solutions business for $825 Million. See, DOJ release.
AS provides disaster protection and relief to keep computer systems accessible in disasters and other disruptions. On July 15, HP agreed to acquire AS for about $610 Million. Only July 16, Comdisco filed a Chapter 11 bankruptcy petition in U.S. Bankruptcy Court (NDIll). The Bankruptcy Court ordered that the relevant Comdisco assets be sold at an auction. SunGard offered the highest of two bids at an October 11 auction -- $825 Million. See, October 12 Comdisco release.
HP stated in an October 24 release that "The HP bid is fully supported by the Official Committee of Unsecured Creditors and has been approved by the Comdisco board of directors. Both the creditors committee and Comdisco have withdrawn their support of a prior bid by SunGard ... HP's bid is still subject to final approval at a sale hearing of the U.S. Bankruptcy Court for the Northern District of Illinois, which has been rescheduled for Nov. 7."
NTIA Urges FCC to End Spectrum Caps
10/24. Nancy Victory, chief of the National Telecommunications and Information Administration (NTIA), sent a letter to FCC Chairman Michael Powell, and the other Commissioners, urging the FCC to repeal its commercial mobile radio service (CMRS) spectrum aggregation limits and cellular cross interest rules.
Victory elaborated that "While the rules may have served a purpose when the Commission was first licensing cellular and personal communications service (PCS) providers and initially creating a competitive market for CMRS, these rules are no longer necessary to preserve established competition. Indeed, their retention will more likely result in consumer harm. The rules' arbitrary constraints on system capacity limit service availability as well as stifle the deployment of innovative new offerings on the CMRS networks."
Commerce Secretary Donald Evans said in a release that "Today's cap is arbitrary and outdated. Technology must be free to advance as fast as the market demands. The words, 'all circuits are busy' need to be retired alongside other relics of the industrial age and replaced by the opportunities and innovations that consumers have come to expect in the 21st century." The NTIA is a part of the Department of Commerce.
Tom Wheeler, P/CEO of the Cellular Telecommunications & Internet Association (CTIA) had this to say: "remove the spectrum caps and allow free and unfettered competition to rule the mobile market. The White House, Secretary Evans and NTIA, under Ms. Victory's leadership has staked out a bold policy position that will bring new and innovative services to consumers across America. The wireless industry welcomes the administration's action and looks forward to working with the FCC to implement this policy." See, CTIA release.
Sen. Hatch Introduces Cyber Crime Bill
10/18. Sen. Orrin Hatch (R-UT) introduced S 1568, the Cyberterrorism Prevention Act of 2001. Sen. Hatch described the bill in the Senate on October 18 as "an important piece of legislation to prevent terrorists from hijacking our computer system to wreak havoc with our essential infrastructure. This bill provides law enforcement with critical tools to combat cyberterrorism."
The bill includes numerous changes to 18 U.S.C. 1030, the federal criminal code section dealing with "fraud and related activity in connection with computers". Provisions of the bill would apply generally, and not solely to terrorism. The bill would also authorize appropriations of $50 Million for ten FBI regional computer forensic laboratories.
The bill was referred to the Senate Judiciary Committee, of which Sen. Hatch is the ranking Republican.
Rep. Chris Smith Introduces Spam Bill
10/16. Rep. Christopher Smith (R-NJ) introduced HR 3146, the Netizens Protection Act of 2001, an anti spam bill. It was referred to the House Commerce Committee.
The bill provides that "No person may initiate ... the transmission of an unsolicited electronic mail message ... if the message (1) does not contain the name, physical address, and electronic mail address of the person who initiates the transmission of the message; (2) does not provide an electronic method by which the recipient of the message can contact the person who initiated the transmission of the message to request that no further such messages be sent ...; or (3)(A) is part of a bulk transmission of such messages; and (B) includes information that is located in the subject line of the message and is false or misleading with respect to the body of the message."
The bill would also create a private right of action for recipients of banned spam. The bill also sets statutory damages at $500 per item. The bill would not preempt state anti spam laws.
Internet Tax Moratorium
10/23. Sen. George Allen (R-VA) and Sen. Byron Dorgan (D-ND) debated Internet taxes in the Senate. Sen. Allen asked for the unanimous consent of the Senate to immediately proceed to the consideration of HR 1552, the Internet Tax Non Discrimination Act. The House passed this bill on October 16. It provides for a two year extension of the Internet Tax Freedom Act. This moratorium was enacted in 1998, and expired on October 21. Sen. Dorgan objected, and the Senate did not proceed to consider the bill.
Committee Meetings Cancelled
10/24. Biological screening in House and Senate office building have caused most hearings on Capitol Hill to be cancelled or postponed since October 17. The House Commerce Committee, which meets in the Rayburn Building, postponed its October 24 hearing on the Federal Trade Commission; FTC Chairman Timothy Muris had been scheduled to testify. The House Commerce Committee also postponed its October 25 hearing on HR 2417, the Dot Kids Domain Name Act of 2001. Similarly, the Senate Commerce Committee postponed its October 25 hearing on broadband deployment and digital TV, even though it meets in the Russell building, which reopened on Wednesday, October 24. Also, the Senate Judiciary Committee cancelled its October 25 executive business meeting; however, these weekly meetings are often cancelled under normal circumstances.
Mail from the USPTO
10/24. Nicholas Godici, acting head of the USPTO, wrote a letter regarding the safety of mail from the USPTO. He stated that the USPTO "has obtained reassurance from the Centers for Disease Control (CDC) about the safety of mailings from the USPTO. Some parties have expressed concern because some mail from the USPTO was in the past routed through the U.S. Postal Service's Brentwood Sorting Station in Washington, D.C., where workers are diagnosed as having contracted anthrax. Most outgoing correspondence from the USPTO did, through Friday, October 19, 2001, pass through the Brentwood Sorting Station, but no outgoing trademark correspondence used that facility. The Office on October 22, 2001, contacted the CDC. The CDC advises us that it is highly unlikely that mail passing through the Brentwood postal facility was contaminated and poses any threat. The Brentwood Station is now closed, and USPTO mailings, both incoming and outgoing, are currently being routed through another station."
People and Appointments
10/23. The Senate confirmed Phillip Bond to be Under Secretary of Commerce for Technology.
10/23. The Senate confirmed John Marburger to be Director of the Office of Science and Technology Policy.
10/23. The Senate confirmed Jay Bybee to be an Assistant Attorney General. He will head the Office of Legal Counsel (OLC). Most recently, he has been a law professor at the University of Nevada Law School. Prior to that he was a professor at Louisiana State University Law School from 1991 to 1998. He was an Associate Counsel to former President Bush. Prior to that he worked at the Department of Justice in the Office of Legal Policy and then in the Civil Division. And before that he was an associate in Washington DC law firm of Sidley & Austin.
10/24. The USPTO added three new Group Directors to the Patent SES Management Team in the agency's Patent Examining Technology Centers. Sharon Gibson and Richard Seidel were named Directors in Patent Examining Technology Center 2800, which examines semiconductor, electrical, and optical systems and components. Bruce Kisliuk was named as a Group Director in Patent Examining Technology Center 1600, which examines inventions related to biotechnology and biochemistry. See, USPTO release.
Thursday, Oct 25
The Senate is scheduled to meet at 9:30 AM. It may take up the anti terrorism bill at 10:00 AM. The House is scheduled to meet at 10:00 AM.
8:30 - 10:00 AM. Harold Furchtgott-Roth and others will hold an informal discussion titled "The Telecommunications Sector in a Slowing Economy". Location: American Enterprise Institute, 1150 17th Street, NW, 11th Floor Conference Room, Washington DC.
CANCELLED. 9:30 AM. The Senate Commerce Committee is scheduled to hold a hearing to examine promoting broadband, focusing on securing content and accelerating transition to digital television. Location: Room 253, Russell Building.
POSTPONED. 9:30 AM. The House Commerce Committee's Subcommittee on Telecommunications and the Internet is scheduled to hold a legislative hearing on HR 2417, the Dot Kids Domain Name Act of 2001. Location: Room 2123, Rayburn Building.
CANCELLED. 10:00 AM. The Senate Judiciary Committee will hold an executive business meeting. Room 226, Dirksen Building.
12:15 PM. The Federal Communications Bar Association's (FCBA) Common Carrier Committee will host a brown bag lunch. The speakers will be Tamara Preiss, Blair Levin, and Jonathan Askin. The topic will be "Perspectives on Local Competition and Local Competitors". RSVP to Naja Wheeler. Location: Wiley Rein & Fielding, 1750 K Street, 10th Floor, Washington DC.
ROOM CHANGE. 2:00 PM. The Senate Judiciary Committee might hold a hearing on pending judicial nominations. See, agenda. Location: Room 385, Russell Building.
Deadline to reply submit comments to the FCC in its rule making proceeding regarding locating spectrum bands below 3 Ghz for possible reallocation for Third Generation (3G) wireless services, and for other purposes. (ET Docket Nos. 00-258 and 95-18 and IB Docket No. 99-81.) See, notice in Federal Register.
Deadline to submit reply comments to the FCC in its rule making proceeding regarding permitting Mobile Satellite Service (MSS) operators flexibility to use their spectrum for land based transmitters. (IB Docket No. 01-185, ET Docket No. 95-18.) See, notice in Federal Register.
Friday, Oct 26
9:30 AM - 12:00 NOON. The American Enterprise Institute (AEI) will host a panel discussion titled "What Should the Government Do about the Transition to Digital Television?" The participants will be Harold Furchtgott-Roth (AEI), Stanley Besen (Charles River Associates), Thomas Hazlett (AEI), Bruce Owen (Economists Incorporated), Edward Fritts (National Association of Broadcasters), Robert Sachs (National Cable Television Association), Gary Shapiro (Consumer Electronics Association), Richard Wiley (Wiley Rein & Fielding), and Gregory Sidak (AEI). The price to attend is $5 (waived for AEI supporters, government employees, and media). Location: Wohlstetter Conference Center, Twelfth Floor, 1150 17th Street, NW, Washington DC.
11:00 AM. The Heritage Foundation will host a panel discussion titled "How Internet Based School Report Cards are Revolutionizing Educational Accountability." The speakers will be Bill Owens (Governor of Colorado), Eugene Hickok (Undersecretary of Education), and Tom Hinton (Heritage). Location: Heritage Foundation, 214 Massachusetts Ave NE, Washington DC.
Tuesday, Oct 30
10:00 AM - 1:00 PM. The FCC's Network Reliability and Interoperability Council will hold a meeting. See, FCC release. Location: FCC, Room TW-C305, 445 12th Street, SW, Washington DC.
12:00 NOON - 1:30 PM. The National Telephone Cooperative Association (NTCA) will host a press luncheon to release and discuss its 2001 Wireless Survey. The speakers will be Michael Brunner (NTCA CEO), Jill Canfield (NTCA regulatory counsel), and Rick Schadelbauer (NTCA economic analyst). RSVP to Contact Donna L. Taylor at 703 351-2086 or dtaylor@ntca.org. Location: Hyatt Regency Washington, Lobby Level, Congressional A, 400 New Jersey Avenue, NW, Washington DC.
12:15 PM. The Federal Communications Bar Association's (FCBA) Cable Practice Committee will host a luncheon. The speakers will be Susanna Zwerling, the Mass Media and Cable legal advisor to FCC Commissioner Copps. The price to attend is $15. RSVP to wendy@fcba.org. NCTA, 1724 Massachusetts Ave., NW, Washington DC.
1:30 - 3:00 PM. The U.S. International Telecommunication Advisory Committee (ITAC) will hold a meeting. The purpose of this meeting is to prepare the State Department for the 2002 Plenipotentiary Conference and the 2002 World Telecommunication Development Conference. See, notice in Federal Register. Location: Federal Communications Commission, Room 6-B516.
2:30 - 4:30 PM. The FCC will host a tutorial on developments in wireless networks and technology, including wireless data, CDMA, TDMA, GSM, IDEN, wireless content, applications and market growth. See, FCC notice. Location: FCC, Commission meeting room.
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