|NextWave and FCC Make
|11/16. FCC Chairman Michael Powell
released a statement
regarding its dispute with NextWave over spectrum licenses. He
wrote that "discussions have concluded between the
government, the auction 35 winners and Nextwave." He
added that "Before the agreement is effective, it must be
ratified by the Department of
Justice, which we expect. In addition, Congressional
action will be required to implement the settlement." His
statement lacks details on the terms of this agreement.
Communications obtained spectrum licenses at FCC auctions
in 1996. The FCC permitted NextWave to obtain the licenses
under an installment plan, thus creating a debtor creditor
relationship between NextWave and the FCC. NextWave did not
make payments required by the plan, and filed a Chapter 11
bankruptcy petition. The FCC was blocked by the bankruptcy
court, citing § 525
of the Bankruptcy Code. The U.S. District Court (SNDY)
affirmed. The U.S.
Court of Appeals (2ndCir) 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, VoiceStream and other
successful bidders, which intend to use it for 3G wireless,
and other, services.
DC Circuit. NextWave petitioned the FCC to reconsider
its cancellation of its licenses. The FCC refused, and
NextWave petitioned for review by the Court of Appeals (DCCir).
The DC Circuit ruled on June 22, 2001, that the 2nd Circuit
had not already addressed NextWave's bankruptcy claims. It
wrote in its opinion
that the FCC is prevented from canceling the spectrum licenses
by § 525 of the Bankruptcy Code. It 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
bankruptcy." See, 254 F.3d 130 (D.C. Cir. 2001).
Powell. Chairman Powell further wrote that the FCC
"has fought aggressively for years to recapture these
licenses, insisting they were public assets that could not be
held by private companies (and insulated from repossession in
bankruptcy) that did not comply with the terms of the auction.
Regrettably, the D.C. Circuit has interpreted the law
differently, and without a prospective legislative change, the
public will bear this risk in future auctions."
NextWave. NextWave also issued a release.
It states: "The agreement provides for NextWave to
receive net proceeds in excess of $6 billion from the U.S.
government in exchange for the C and F block PCS licenses, and
it allows the FCC to move forward with implementation of
Auction 35. The documentation of the agreement has been
finalized, and it has been signed by NextWave and the wireless
service providers. The agreement is contingent on Congress
enacting legislation, and it also must be approved by the
bankruptcy court overseeing NextWave's Chapter 11
reorganization. Following those events, the Company intends to
file a new plan of reorganization."
|Trial of Terrorists Before
|11/16. President Bush published in the Federal Register a Military
Order dated November 13, 2001 regarding "Detention,
Treatment, and Trial of Certain Non Citizens in the War
Against Terrorism". It provides for the detention and
trial by military tribunal of terrorists who are not U.S.
citizens. The order does not define the term terrorism; the
order does not explicitly include, or exclude, cyber
terrorism. Moreover, the President retains authority to
determine which individuals will be subject to trial by
military tribunal. See, Federal Register, November 16, 2001,
Vol. 66, No. 222, at Pages 57831 - 57836.
The President's order applies to "any individual who is
not a United States citizen with respect to whom I determine
from time to time in writing that: (1) there is reason to
believe that such individual, at the relevant times, (i) is or
was a member of the organization known as al Qaida; (ii) has
engaged in, aided or abetted, or conspired to commit, acts of
international terrorism, or acts in preparation therefor, that
have caused, threaten to cause, or have as their aim to cause,
injury to or adverse effects on the United States, its
citizens, national security, foreign policy, or economy; or
(iii) has knowingly harbored one or more individuals described
in subparagraphs (i) or (ii) ..."
|Senators Specter and Leahy
Call for Hearing on Military Tribunal Order
|11/15. Sen. Arlen
Specter (R-PA) and Sen.
Patrick Leahy (D-VT) went to the floor of the Senate on
Thursday, November 15, to challenge President Bush's order
regarding the use of military tribunals to try terrorists, and
to call for a hearing. Sen. Leahy is Chairman of the Senate Judiciary
Committee; Sen. Specter is a senior Republican member.
See, Congressional Record, November 11, 2001, at pages
Sen. Specter said that "I have written today to the
chairman of the Judiciary Committee suggesting that prompt
hearings be held on this subject." He later suggested
holding a hearing on November 27 that would include ttestimony
from Attorney General John Ashcroft.
He continued that "The Constitution provides that the
Congress is empowered to define and punish violations of
international law, as well as to establish courts with
exclusive jurisdiction over military offenses. Under articles
of war, enacted by Congress, and statutes, the President does
have the authority to convene military commissions to try
offenses against the law of war. Military commissions could be
convened to try offenses, whether committed by U.S. service
members, civilian U.S. citizens, or enemy aliens, and a state
of war need not exist. So there has been a delegation of
authority by the Congress. But under the Constitution it is
the Congress that has the authority to establish the
parameters and the proceedings under such courts."
Sen. Leahy responded that "we should have hearings on
this -- actually a number of these steps. One of the difficult
things, as the Senator knows, is getting the Attorney General
to come up here and testify." Sen. Leahy and other
Democrats on the Senate Judiciary Committee viciously
criticized Ashcroft during his confirmation hearing earlier
|Senators Debate Doha
Agreement and New WTO Round
|11/15. Sen. Frank
Murkowski (R-AK) praised the results of the meeting in
Doha. He said that "yesterday the WTO
concluded its fourth ministerial meeting in Doha, Qatar.
Circumstances leading to this meeting were not auspicious.
There is a war on, after all, and the Middle East is not the
most comfortable place for the champions of globalization and
progress. With the global economic slowdown, protectionism is
on the rise. Not exactly the best time to undertake talks to
expand global trade."
Sen. Murkowski said that "the WTO ministerial meeting was
a great success. The WTO initiated a new Round of
international trade negotiations, setting forth an ambitious
agenda by overcoming difficult objections from the EU, the
developing world, and even those in this country who are less
than appreciative of the importance of international
trade." Cong. Record, November 15, pages S11933-4.
11/15. Sen. Max Baucus
(D-MT) was less impressed by the Doha meeting. "I am
unsettled by the results of this session in several areas. The
agreement reached today in Doha makes it even more clear why
Congress must have deeper involvement in our international
trade policy. Without a doubt, there are positive items in the
documents to launch the negotiation. I am pleased that the
United States was able to negotiate forward looking language
on agriculture. There are some good things there -- for
example, goals of improving market access and reducing market
distortions, particularly export subsidies. But these are
vague commitments, and Europe and some of its allies have
already demonstrated their strident opposition to meaningful
progress in this area. The devil is in the details -- and the
details have yet to be worked out. On the other side of the
ledger, I am extremely troubled by the decision to re-open the
agreements reached just a few years ago on antidumping and
anti-subsidy measures." Cong. Record, November 15, page
Sen. Baucus is Chairman of the Senate Finance
Committee, which has jurisdiction over most trade related
issues. Sen. Murkowski is a senior Republican on the
|FCC Commissioners Debate
Regulatory Classification of DSL
|11/16. The FCC announced,
but did not release, its order (FCC 01-338) approving SBC's Section
271 application to provide in-region interLATA service
originating in Arkansas and Missouri. This was expected. SBC
may now offer long distance phone service in these states.
release and SBC
release. (CC Docket No. 01-194.)
In addition, three of the four FCC Commissioners wrote
separate statements in which they addressed the FCC's
regulatory treatment of high speed Internet access service in
its yet to be released order. At issue is the interconnection
requirements of 47 U.S.C.
§ 251. Specifically, § 251(c)(4) provides, in part,
that "each incumbent local exchange carrier has the
following duties: ... (A) to offer for resale at wholesale
rates any telecommunications service that the carrier provides
at retail to subscribers who are not telecommunications
carriers; and (B) not to prohibit, and not to impose
unreasonable or discriminatory conditions or limitations on,
the resale of such telecommunications service ..."
Abernathy wrote in her statement
that the FCC "appropriately concludes ... that, because
we have never held that an incumbent LEC's DSL Internet access
service -- as opposed to a distinct end-user DSL transport
service -- is subject to section 251(c)(4), we cannot find
that SBC is in violation of checklist item 14. Whether SBC's
DSL Internet access service is subject to section 251(c)(4)
turns on whether the provision of that service entails the
provision of a "telecommunications service . . .
at retail." The Commission has prudently declined to
reach a definitive conclusion on this issue in this
adjudicatory proceeding in light of the 90-day statutory
deadline for decision and the fact that our ultimate
resolution of this issue likely will have significant
implications in other regulatory contexts." (Footnote
However, she added that "my analysis of this question is
not free from doubt, and both I and the Commission may adopt a
different approach in the future based on a more fully
Similarly, Commissioner Michael Copps
wrote in his statement
that "a separate proceeding with a full record can
clarify the situation ..." He continued: "I am
seriously troubled that, for small business and residential
customers, SBC does not make available for resale pursuant to
section 251(c)(4) any DSL service offerings. SBC currently
offers two types of broadband DSL services. First, SBC sells
directly to large businesses. These services are retail
offerings, and SBC makes them available at a wholesale
discount to competitors wishing to resell them. For small
businesses and residential customers, however, SBC generally
provides DSL services only to its own Internet provider and to
unaffiliated Internet providers. Citing the AOL Bulk Services
Order, SBC claims that it is not providing DSL at retail, thus
triggering no obligations under section 251(c)(4). Yet, a
strong argument can be made that the AOL Bulk Services Order
was premised on the expectation that there would be a retail
offering from which discounts would be calculated."
In contrast, Commissioner Kevin Martin
wrote in his statement
that he supports the Order, and that "While the
Commission may ultimately address this issue in more detail,
those who argue that this high speed Internet access service
provided to end users should be subject to section 251(c)(4)
must show how, in light of the precedent described above, this
is a "telecommunications service" being offered
"at retail." "
|Rep. Baird Introduces Bill
to Fund Computer Security Research
|11/16. Rep. Brian
Baird (D-WA) introduced HR 3316, the Computer Security
Enhancement and Research Act of 2001. He said that it
"establishes a research and development program on
computer and network security at the National Institute of Standards
and Technology. It also strengthens the institute's
existing responsibilities in developing best computer security
practices and standards in assisting Federal agencies to
implement effective computer and network security." See,
Cong. Record, November 16, at pages H8331-2.
Rep. Baird stated that "Telecommunications and computer
technologies are vulnerable to attack from far away by enemies
who can remain anonymous, hidden in the vast maze of the
Internet. Examples of systems that rely on computer networks
include the electric power grid, rail networks, and financial
transaction networks. Just as enemies are achieving a
sophistication to use the most complex weapons against us, our
vital computer networks have become more interconnected and
more accessible and, therefore, more vulnerable via the
The House Science
Committee, of which Rep. Baird is a member, held hearings
on October 10 and 17 on cyber security. On October 17,
Virginia Gov. James Gilmore recommended that "we need an
entity to develop and implement a comprehensive plan for
research, development, test and evaluation of processes to
enhance cyber security in the same manner as we must do for
other potential terrorist attacks. This is where our colleges
and universities can have a dramatic impact not only in
developing needed immediate capacity, but in training the next
generation of "cyber soldiers" to protect our
critical information systems and infrastructures." See, prepared
testimony. Gov. Gilmore is also Chairman of the Advisory Panel to
Assess the Capabilities for Domestic Response to Terrorism
Involving Weapons of Mass Destruction, which is also known
simply as the Gilmore Commission.
Rep. Baird provided further details about his proposal.
"The research program is authorized for a 10 year period,
growing from $25 million in the first year to $85 million in
the fifth year. This may sound like a substantial amount of
money, but the billions of dollars that are lost in successful
computer attacks makes this paltry by comparison. Although the
award would go to universities, the research projects may
involve collaboration with for-profit companies that develop
information security products."
The bill is cosponsored by Reps. Jim Matheson
(D-UT), Mark Udall (D-CO), and Michael Honda (D-CA). It was
referred to the House
|Fed Circuit Rules in SSL v.
Lockheed Martin Patent Case
|11/13. The U.S.
Court of Appeals (FedCir) issued its opinion in Space
Systems / Loral v. Lockheed Martin, a patent
infringement case involving the on sale bar.
Ford Aerospace & Communications Corp. (Ford), the
predecessor of Space Systems / Loral (SSL), was the original
assignee of U.S.
Patent No. 4,537,375, titled "Method and apparatus
for thruster transient control". This patent discloses an
attitude control system for maintaining the position and
orientation of a satellite. SSL filed a complaint in U.S.
District Court (NDCal) against Lockheed Martin alleging
patent infringement. The District Court ruled, on summary
judgment, that the patent was invalid under the on sale bar.
U.S.C. § 102(b) provides that "A person shall
be entitled to a patent unless ... the invention was ...
on sale in this country, more than one year prior to the date
of the application for patent in the United States."
Prior to the patent application, Ford contracted with SociJtJ
Nationale Industrielle Aerospatiale. Fred Chan, a Ford
employee, and inventor of the patent, sent to Aerospatiale an
engineering proposal, prior to the patent application,
describing the system, including rough drawings, and an
estimate of the cost of developing the system. The District
Court held that Chan's proposal demonstrated conception of the
invention, that the invention was ready for patenting upon
conception, and that this proposal was an on sale event.
The Appeals Court reversed and remanded. It held that the
District Court erred in ruling that the invention was ready
for patenting upon conception as communicated in Chan's
engineering proposal. It reasoned that for a complex
technique, "wherein the inventor himself was uncertain
whether it could be made to work, a bare conception that has
not been enabled is not a completed invention ready for
patenting." The Appeals Court did not reach the question
of whether an offer of sale had been made.
|The Tech Law Journal Daily E-Mail Alert will not be
published on Thursday, November 22, or Friday, November 23.
|House to Vote on Trade
Promotion Authority Bill
|11/16. Rep. Dick Armey
(R-TX) announced that the House is scheduled to vote on HR
3005, the Bipartisan Trade Promotion Authority Act of
2001, on December 6, 2001. See, release.
The House Ways and
Means Committee passed the bill by a vote of 26 to 13 on
Trade promotion authority (TPA), which is also known as fast
track, would give the President authority to negotiate trade
agreements which can only be voted up or down, but not
amended, by the Congress. TPA strengthens the bargaining
position of the President, and the U.S. Trade Representative, in
negotiations with other nations.
Technology companies that export equipment, software, or
services, and that seek greater protection abroad for their
intellectual property rights, stand to benefit from enactment
Sen. Frank Murkowski
(R-AK) said that "I am hopeful that the House will act on
a bill to provide the President TPA this session, and that the
Finance Committee will have the opportunity to mark-up that
bill for a vote on the floor before we leave for the
holidays." Cong. Record, November 15, pages S11933-4.
Sen. Max Baucus (R-MT)
stated that "any new grant of fast track negotiating
authority must address the concerns of Congress on issues like
preservation of U.S. trade laws. It must also ensure that
Congress has an active role in trade negotiations." Cong.
Record, November 15, page S11899.
The protectionist Sen.
Robert Byrd (D-WV) said that "we must not be asleep
at the wheel as the one sided trade jalopy goes rumbling down
the fast track". Cong. Record, November 16, page S11985.
|The Friday, November 16, 2001 issue of the Tech Law Journal
Daily E-Mail Alert (Alert
No. 310), reported that "The Senate passed HR
1552, the Internet Nondiscrimination Act (INDA), without
amendment, by a voice vote, on Thursday evening, November
15." In fact, the name of the bill is the Internet Tax
Nondiscrimination Act. TLJ thanks readers who pointed out this
|Monday, Nov 19
|The House will meet at 2:00 PM. The Senate has recessed
until November 27.
11:00 AM - 12:00 NOON. The American
Enterprise Institute (AEI) will host an event titled
"Trade Policy Briefing: After Doha - What's Next?"
The speakers will be Claude Barfield, Michael Finger, and
Sarath Rajaptirana. They will analyze the decisions made at
the WTO Ministerial Meeting held November 9-13 in Doha, Qatar.
Location: AEI, 12th Floor, 1150 Seventeenth Street, NW,
|Tuesday, Nov 20
|The Senate will be in recess.
10:00 AM. The Commerce
Department's Technology Administration will hold a public
meeting on existing public and private high tech workforce
training programs. The meeting is being held pursuant to §§
115(a) and 115(b) of the American Competitiveness in the
Twenty First Century Act of 2000 (Public Law 106-313), which
requires the Secretary of Commerce to conduct a study and
prepare a report to Congress. Location: Room 4813, Commerce
Department. See, notice
in Federal Register, September 10, 2001, Vol. 66, No. 175, at
|Wednesday, Nov 21
|The Senate will be in recess.
2:00 - 5:00 PM. The National
Science Foundation's (NSF) Advisory Committee for
Cyberinfrastructure will hold a meeting to develop a plan for
the preparation of a report to the NSF concerning advanced
cyber infrastructure and the evaluation of the existing
Partnerships for Advanced Computational Infrastructure. See, notice
in Federal Register, November 2, 2001, Vol. 66, No. 213, at
Pages 55702. Location: Room 130, NSF, 4201 Wilson Blvd.,
|Thursday, Nov 22
|Thanksgiving day. Government offices will be closed. The
Tech Law Journal Daily E-Mail Alert will not be published.
|Friday, Nov 23
|The Senate will be in recess.
The Tech Law Journal Daily E-Mail Alert will not be published
|GAO Reports on IT at
Federal Overseas Operations
|11/16. The GAO
released a report
[PDF] titled "Information Technology: State Department
Led Overseas Modernization Program Faces Management
Challenges". It calls for more rigorous management
The report states that the State
Department "is in the early, formative phase of a
long term plan to acquire and deploy a common knowledge
management system for overseas based agencies engaged in
foreign affairs activities. This system is to provide
functionality ranging from basic Internet access and e-mail to
mission critical policy formulation and crisis management
The report concludes that there is a need for more rigorous
management controls, without which "it is unlikely that
State and its agency partners will deliver needed operational
system capabilities on time and within budget."
The 51 page report was prepared for Rep. Henry Hyde (R-IL),
Chairman of the House
Committee on International Relations.
|Rep. Markey Opposes
|11/16. Rep. Ed Markey
(D-MA), the ranking Democrat on the House Telecom
Subcommittee, sent a letter
[PDF] to Attorney General John Ashcroft complaining about the
DOJ's and Microsoft's Proposed
Final Judgment. He wrote that "I believe that the
reported settlement agreed to by the Department represents a
weakening in our government's commitment to a competitive
marketplace and an abandonment of its responsibility to
Rep. Markey added that "The proposed settlement has a
number of deficiencies, the most egregious of which is its
failure to adequately address one of the central issues of
contention in the antitrust case: Microsoft's illegal strategy
of bundling so-called 'middleware' products, such as browsers,
instant messaging software, and media players, into its
monopoly Windows operating system." He also stated that
"government officials seeking to correct a violation
would have little recourse except to make a Federal case out
of it. That's obviously a poor remedy in the fast paced
The Microsoft settlement does not require any Congressional
approval. Also, the House Telecom Subcommittee has no
oversight authority over the DOJ.
|11/16. The House passed HR 3009,
the Andean Trade Promotion and Drug Eradication Act, by a
11/15. The House
Judiciary Committee's Subcommittee on Immigration and
Claims postponed its legislative hearing on HR 3231, a bill to
replace the Immigration and Naturalization Service (INS) with
the Agency for Immigration Affairs.
11/16. The U.S.
Court of Appeals (DCCir) issued its opinion
in Celtronix v. FCC,
a petition for review of the FCC's 1997 grace
period order regarding auction of Interactive Video
and Data Service (IVDS) licenses. The Appeals Court affirmed
the FCC order.
|Starting on January 1, 2002, the Tech Law Journal Daily
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|About Tech Law Journal
|Tech Law Journal is a free access web site and e-mail alert
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