|DC Circuit Rules in CALEA
Cost Recovery Case
|1/18. The U.S.
Court of Appeals (DCCir) issued its opinion
v. FBI, a case regarding the cost recovery and
notice of required capacity provisions of the CALEA. The
Appeals Court affirmed the District Court's grant of summary
judgment on the USTA's cost recovery claim, but reversed and
remanded on the notice claim.
CALEA. Congress passed the Communications
Assistance for Law Enforcement Act (CALEA), 47 U.S.C. §
1001 et seq., in 1994 to enable law enforcement authorities to
maintain their existing wiretap capabilities in new
telecommunications devices. The Congress had cell phones in
mind. The CALEA provides that wireline, cellular, and
broadband PCS carriers must make their equipment capable of
certain surveillance functions. The CALEA has since been
implemented in a manner that expands surveillance capabilities
beyond those provided in the statute, thereby increasing the
financial burden on communications carriers, and hence, their
CALEA: § 1002. This section of the CALEA addresses the
required capability of carriers to conduct electronic
surveillance. It is not at issue in the case. However, it is
the subject of a proceeding before the Federal Communications Commission
(FCC). See, August 15, 2000, opinion
of the U.S. Court of Appeals (DCCir) in USTA v. FCC, 227 F.3d
450. See also, the FCC's CALEA
CALEA: § 1003. This section, which is the subject of
this case, addresses the required capacity of
telecommunications carriers to conduct electronic
surveillance. That is, it goes to the "actual number of
communication interceptions, pen registers, and trap and trace
devices ..." and the "maximum capacity required to
accommodate all of the communication interceptions, pen
registers, and trap and trace devices ..." It requires
the Attorney General (in this case his designate is the FBI) to publish a notice in the
Federal Register of the actual number and maximum capacity
that he estimates that government agencies authorized to
conduct electronic surveillance may conduct and use
CALEA: § 1008. This section covers allocation of costs
associated with compliance with the CALEA. It provides, among
other things, that the Attorney General "may agree,
subject to the availability of appropriations, to pay the
telecommunications carrier for the additional reasonable costs
of making compliance with such assistance capability
requirements reasonably achievable".
FBI Rules. The FBI published its final
notice [94 pages in PDF] implementing § 1003 on
March 12, 1998. See, Federal Register, March 12, 1998, Vol.
63, No. 48, at Pages 12218 - 112310.
District Court. The U.S.
Telecom Association (USTA), a trade association of about
1400 telephone companies, filed its original complaint
District Court (DC) on August 19, 1998, against the FBI
and others alleging that this final notice violated the cost
recovery provisions of the CALEA by erroneously defining the
class of modifications for which carriers might be eligible
for reimbursement. The USTA also alleged that the FBI's
concept of the notices of required capacity misread the
statute in a variety of ways, each increasing the carriers'
burdens and their risks of being found noncompliant. The
District Court consolidated this case with a similar case
filed by the Cellular
Telecommunications Industry Association (CTIA). The
District Court granted summary judgment in favor of the FBI on
Appeals Court. A three judge panel of the DC Circuit
affirmed the District Court on the reimbursement scheme,
finding that the FBI correctly defined the modifications
required to be reimbursed. However, the Court of Appeals
reversed on the notice of required capacity issue, and
instructed the District Court to remand the case.
Note Regarding Pen Registers and Trap and Trace Devices.
These are both old telephone industry concepts. Pen registers
are devices that record telephone numbers that are dialed or
punched. Trap and trace devices record the telephone numbers
of incoming calls. It is also noteworthy that on October 26,
2001, President Bush signed HR 3162,
the USA PATRIOT Act. It expanded law enforcement agencies'
authority with respect to the use of pen registers and trap
and trace devices. Prior law covered "wire"
communications. The USA PATRIOT Act provides that the concept
of a pen register is expanded from merely capturing phone
numbers, to capturing routing and addressing information in
any electronic communications, including Internet
communications. The Act similarly expands the concept of trap
and trace devices.
Note Regarding Privacy. The claims plead in the
complaint, and ruled upon by the District and Appeals Courts,
in this case, pertain to cost recovery and notices of required
capacity. However, the statute implicates fundamental notions
of individual privacy. Hence, in addition to industry groups
(such as the USTA and CTIA), groups that advocate privacy
rights (such as the Center for
Democracy and Technology (CDT), the Electronic Privacy Information
Center (EPIC), and others), have also opposed the FBI's
and FCC's implementation of the CALEA.
|Appeals Courts Rule in
Generic Drug Cases
|1/17. The U.S.
Court of Appeals (FedCir) issued its opinion in Biovail
v. Andrx, an Abbreviated New Drug Application (ANDA)
case. The District Court shortened the statutory 30 month
delay of approval of Andrx's pending ANDA and ordered that the
ANDA be approved by the FDA. The Appeals Court vacated the
judgment and remanded.
1/18. The U.S.
Court of Appeals (DCCir) issued its opinion
v. Barr Laboratories, a Hatch Waxman Amendments
case involving tamoxifen, a breast cancer drug. The District
Court granted summary judgment to Pharmachemie. Subsequently,
Pharmachemie lost its court challenge to the underlying
patent. Hence, the Appeals Court dismissed the appeal for lack
of jurisdiction, vacated the judgment of the District Court,
and remanded the case with instructions to dismiss the
|First Circuit Rules in
Music Copyright Case
|1/17. The U.S.
Court of Appeals (1stCir) issued its opinion
Gonzalez v. Fonovisa, a pair of cases involving
music copyright infringement. The Appeals Court affirmed the
District Court. It held that a distributor can be liable for
copyright infringement where the plaintiff has not established
that the producer was guilty of copyright infringement.
|China, WTO Obligations, and
|1/18. Representatives of the State and Commerce Departments
gave their assessments of the People's Republic of China's
likely compliance with its World
Trade Organization (WTO) obligations at a U.S.-China
Commission event. A Defense Department representative also
addressed export controls.
Shaun Donnelly, Acting Assistant Secretary of State for the
Bureau of Economic and Business Affairs, predicted that
"There will likely be bumps in the road to implementation
for the Chinese Government. Government officials may have
difficulty meeting deadlines for certain measures. Local
officials initially may not be able to fully grasp the depth
of changes needed. There may be pockets of resistance within
China to full implementation of painful changes in areas like
agricultural liberalization or intellectual property
protection." See, transcript.
William Lash, Assistant Secretary of Commerce for Market
Access and Compliance, testified that "I personally
believe that the leadership of China is earnest in its
commitments to play by the rules of the WTO system, even with
the enormous structural challenges that WTO membership entails
domestically." See, transcript.
Lash also addressed what the U.S. is doing to assist China in
its reform efforts. He stated that "We have already
initiated a series of training programs for Chinese officials
on WTO related issues of concern to U.S. business. Our first
team traveled to Beijing and Shanghai in the fall of 2000 to
review China's future WTO obligations in areas like standards,
intellectual property rights and anti dumping requirements
with Chinese officials and the resident U.S. business
community. In early 2001, a half dozen sessions were held in
Washington for Chinese officials, on topics ranging from
e-commerce regulation to corporate mergers and acquisitions,
to WTO anti-dumping rules. Subsequently, China Team officers
traveled to China with the American National Standards
Institute for seminars in Beijing and Xian, organized
Intellectual Property Rights Enforcement Training sessions in
Shenyang, Hangzhou, and Xiamen, and conducted information
technology and semiconductor seminars in Beijing."
Lisa Bronson, Deputy Under Secretary of Defense for Technology
Security Policy and Counterproliferation, focused on export
controls. She stated that PR China has a "poor
record" on proliferation. See, transcript.
She elaborated that "China's modernization program
appears to be focusing on ``pockets of excellence,´´ where
advances in select technologies can be leveraged for
disproportionate benefit in a potential conflict. Several such
``pockets´´ include: preemptive long range precision strike
capabilities; information dominance; command and control; and
integrated air defense. In support of these efforts, Beijing
has identified the development of an indigenous
microelectronics industry as one of its highest priorities. A
cutting edge domestic microelectronics sector will support
both military and commercial modernization in China. China's
increasing emphasis on development of very large scale
integrated circuits will have direct application in future
military systems, for example, advanced phased array
"China is both a problematic proliferator and the largest
potential future market for the U.S.", said Bronson.
"The challenge of China is striking the balance between
the desire to successfully compete in a vast untapped
commercial market and the need to protect national security,
including through effective nonproliferation. Our policies and
practices must strive to minimize transfers of technologies
that could contribute to potentially threatening modernization
efforts. Our focus is already on the areas Beijing has
identified as its ``pockets of excellence,´´ but we need to
continually be vigilant in the licensing process for new areas
where our high technology might be exploited to our
She added that "If a commodity is widely available, and
not amenable to multilateral controls, then export controls
may not be the best tool for addressing a national security or
|People and Appointments
Aberman joined the Washington DC office of the law
firm of Fenwick & West
as a partner. David Dutil joined the firm as an
associate in the Washington DC office. Aberman focuses on
representing companies in biotechnology, computer software,
Internet services, and other industries. He previously was a
partner in the Northern Virginia office of the law firm of Pillsbury Winthrop.
Auchter was named a partner in the law firm of Robins, Kaplan, Miller &
Ciresi. He works in the intellectual property section of
the Washington DC office. He focuses on patent litigation,
counseling and prosecution involving consumer and industrial
electronics, electronic power technology, medical devices and
instruments, semiconductor processing, semiconductor devices
and circuits, aerospace technology, satellite communications,
interactive voice technologies, telecommunications, computer
hardware and software, and other technologies. See, release.
1/15. Jerry Blackstock joined the litigation section of
the Atlanta office of the law firm of Hunton & Williams. He
was previously Chair of the Litigation Department of the law
firm of Powell Goldstein Frazer
& Murphy. See, H&W
Hill joined the Washington DC office of the law firm
of Howrey Simon Arnold &
White as a partner in the antitrust practice group. He was
previously a partner in the Washington DC office of the law
firm of Sidley & Austin.
1/14. Hogan & Hartson,
a Washington DC based law firm, and Squadron Ellenoff Plesent
& Sheinfeld, a law firm based in New York City and Los
Angeles, announced that they will merge. See, H&H
1/14. The law firm of Morrison
& Foerster announced that 14 attorneys have been
elevated to partner. The list includes Hector
Gallegos (who is in the Litigation, IP, and Computer
& Software sections in the firm's Los Angeles office), Heike
Fischer (Corporate and IP, Palo Alto), Erik
Olson (Litigation and IP, Palo Alto), Erica
Wilson (Litigation, Palo Alto), Eric
Acker (Litigation and IP, San Diego), Rosemary
Tarlton (IP, San Francisco), and Thomas
Treffert (IP, San Francisco). See, MoFo
1/16. Evelyn Sroufe rejoined the law firm of Perkins Coie as a
partner in the firm's Corporate Finance Group in the Seattle
office. She was previously President and CEO of The WebSea
Group, Inc., a Seattle based consulting firm to technology
companies. Before that, she worked for Visio, and for
Microsoft after it acquired Visio. See, PC
|Tuesday, Jan 22
|10:00 AM - 12:30 PM. The FCC's Office of Engineering and
Technology and Corning Incorporated will host a tutorial
on optical communications. See, FCC
notice. Location: FCC, Commission Meeting Room (TWC-305),
445 12th Street, SW, Washington DC.
12:15 PM. The Federal
Communications Bar Association's Common Carrier Practice
Committee will host a brown bag lunch. The speaker will be Dorothy
Attwood, Bureau Chief of the FCC's Common Carrier Bureau. RSVP
to Rhe Brighthaupt at email@example.com.
Location: Wiley Rein & Fielding, 1750 K St., NW, 10th
Floor Conference Room.
|Wednesday, Jan 23
|The House reconvenes at 12:00 NOON. It will then take
up two non tech related bills (HR
700 and HR
The Senate reconvenes at 12:00 NOON. The Senate will
recess from 12:30 - 2:15 PM, for the weekly party conferences.
9:00 AM - 5:15 PM. There will be a day long conference titled Broadband Outlook
2002 Conference. Location: Four Seasons Hotel, Washington
DC. The scheduled speakers include the following:
• 9:15 - 9:45 AM. Nancy Victory, head of the NTIA.
• 10:45 - 11:45 AM. Robert Pepper, Chief of the
FCC's Office of Plans and
• 11:45 AM - 12:00 NOON. Dorothy Atwood, Chief
of the FCC's Common Carrier
• 12:00 NOON - 1:30 PM. Ken Feree, Chief of the
FCC's Cable Services Bureau.
12:15 PM. The Federal
Communications Bar Association's Global Telecommunications
Development Committee will host a brown bag lunch. Doreen
McGirr (Department of State) and John Giusti (FCC
International Bureau) will speak about preparations for the ITU
World Telecommunications Development Conference. RSVP to Kent Bressie.
Location: Wilkinson Barker
Knauer, 2300 N Street, NW, 7th floor, Washington DC.
|Thursday, Jan 24
|The House will meet at 10:00 AM to take up HR 1762, a bill
to amend the Higher Education Act.
9:30 AM. The House
Commerce Committee's Subcommittee on Oversight and
Investigations will hold a hearing the destruction of Enron
related documents by Anderson personnel. Location: Room 2322,
Rayburn House Office Building.
11:00 AM. The Cato Institute
will host a panel discussion titled "Eye in the Sky --
and Everywhere Else:
Do Biometric Technologies Violate Our Rights?" The
speakers will be Joseph Atick (Visionics Corp.), Marc
Dorothy Denning (Georgetown University), and John Woodward
(RAND). A lunch will follow the program. Location: Cato
Institute, 1000 Massachusetts Avenue, NW, Washington DC.
12:15 PM. The Federal
Communications Bar Association's Mass Media Committee will
host a brown bag lunch. The speakers will be David Solomon,
Chief of the FCC's Enforcement Bureau, and Linda Blair,
Deputy Chief of the FCC's Enforcement Bureau. RSVP to firstname.lastname@example.org. Location:
National Public Radio, 635 Massachusetts, Ave., NW, 1st Floor,
2:00 PM. The Senate
Judiciary Committee will hold a hearing on judicial
nominations. Sen. Maria
Cantwell (D-WA) will preside. Location: Room 226, Senate
|Friday, Jan 25
|The House will meet at 10:00 AM in pro forma session only.
|Monday, Jan 28
|8:30 - 10:00 AM. The American
Enterprise Institute (AEI) will host a press breakfast.
AEI scholars will provide as well a retrospective on the first
six years under the Telecommunications Act of 1996. RSVP to
Veronique Rodman, Director of Public Affairs, at 202 862-4871
Location: AEI, 1150 17th Street, NW, 11th Floor, Conference
Room, Washington DC.
12:00 NOON. Deadline to submit comments to the Office of the United States Trade Representative
(USTR) regarding the operation and effectiveness of the World Trade Organization (WTO)
Basic Telecommunications Agreement, the telecommunications
provisions of the North American Free Trade Agreement (NAFTA),
and other telecommunications trade agreements. This request
for comments is pursuant to an annual review of telecom
agreements required by Section 1377. See, notice
in the Federal Register, December 27, 2001, Vol. 66, No. 248,
at Pages 66963 - 66964.
|Appeals Courts Rule in
|1/14. The U.S.
Court of Appeals (2ndCir) issued its opinion
Century Fox v. Marvel, a contract and Lanham
Act case regarding the rights of trademark licensees.
1/18. The U.S.
Court of Appeals (5thCir) issued its opinion
International v. KHK Scaffolding, a case
involving ex parte seizure orders in trademark infringement
cases. The Appeals Court affirmed the District Court.
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