Tech Law Journal Daily E-Mail Alert
January 29, 2002, 9:00 AM ET, Alert No. 356.
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Global Crossing Files Chapter 11 Petition
1/28. Global Crossing, and some of its affiliates, filed a Chapter 11 bankruptcy petition in the U.S. Bankruptcy Court (SDNY). Global Crossing also stated in a release that it filed "coordinated proceedings in the Supreme Court of Bermuda." Global Crossing operates a fiber optic network in Asia, the Americas, and Europe. It also provides telephone, Internet access, and data transport services.
Few Congressional Web Sites are Rated Highly
1/28. The Congress Online Project (COP) released a report titled "Congress Online: Assessing and Improving Capitol Hill Web Sites". The report concludes that "There is a digital divide within Congress between a small group of offices that host good to excellent Web sites and the vast majority that host fair to poor sites."
The report also concluded that "neither congressional offices nor the public they serve are yet reaping the benefits of this powerful new medium."
The report found that "Constituents, special interest groups, and reporters are seeking basic legislative information such as position statements, rationales for key votes, status of pending legislation, and educational material about Congress. However, offices are using Web sites primarily as promotional tools ..."
The COP report identified 35 web sites for praise. It picked both the web site of the House Commerce Committee and that of the House Commerce Committee Democrats.
The COP reviewed 605 web sites of Members of Congress, Congressional committees, and Congressional leadership offices. The COP also interviewed Congressional staff and conducted constituent focus groups. The COP is funded by a grant from the Pew Charitable Trusts. The report was written by George Washington University and the Congressional Management Foundation.
DOJ Recommends Approval of Verizon NJ 271 Application
1/28. The Antitrust Division of the Department of Justice (DOJ) submitted its evaluation [PDF] to the Federal Communications Commission (FCC) recommending that it approve Verizon's Section 271 application to provide in region interLATA services in the state of New Jersey. This is CC Docket No. 01-347. See, DOJ release.
The DOJ wrote that "The record in this matter suggests that Verizon has succeeded in opening its local markets in New Jersey to competition in most respects. Subject to the Commission satisfying itself as to the pricing issues discussed below, the Department recommends approval of Verizon’s application ..."
Verizon has already gained approval to provide long distance services in Pennsylvania, Connecticut, Massachusetts, and New York. It also has applications pending for the states of Rhode Island and Vermont. Sarah Deutsch, VP and Associate General Counsel of Verizon, stated in a release that "We are very pleased ..."
People and Appointments
1/25. The law firm of Preston Gates named several new partners. Katherine Marelich was named a partner in the litigation group in the Los Angeles office. She focuses on intellectual property law, with an emphasis on copyright, trademark, antitrust and unfair business practices litigation. Audra Mori was also named a partner in the litigation group in the Los Angeles office. She focuses on copyright and trademark cases. John Lange was named a partner in the technology and intellectual property group in the Seattle office. He works with software, television, wireless communications and other high tech companies on transactions related to product development, cross licensing, online marketing and product distribution via retail, wholesale and OEM sales channels. See, Preston Gates release regarding Marelich and Mori, and release regarding Lange.
1/24. Spencer Klein joined the law firm of McDermott Will & Emery as a partner in the corporate department of the firm's New York office. He will head the firm's M&A practice. He was previously a partner with the law firm of Shearman & Sterling in New York. See, MWE release.
1/28. Jeffrey Sheldon joined the Washington DC office of the law firm of McDermott Will & Emery as a partner in the firm's regulation and government affairs department. He will also be a member the firm's telecommunications practice group, advising telecom clients regarding legislative and regulatory matters. He was previously VP of Cogent Communications. Before that, he was VP and General Counsel of United Telecom Council. See, MWE release.
More News
1/26. President Bush stated in his regular Saturday radio address that "My budget calls for the largest increase in defense spending in the last 20 years, investing in more precision weapons, missile defenses, unmanned vehicles, and high tech equipment for our soldiers on the ground."
1/25. The Office of the U.S. Trade Representative (USTR) announced that "The chief negotiators of the Free Trade Agreement between Chile and the United States scheduled two new meetings for March and April 2002. This agreement was reached at the end of the 10th Round of Negotiations held between January 22 and 25, in Santiago." It also stated that "During this week, the parties met to address the following issues: market access, antidumping, services, investment, financial services, e-commerce, intellectual property rights, government procurement, dispute settlement and institutional issues. Labor, environmental issues, sanitary and phytosanitary as well as customs procedures were addressed in videoconferences." See, USTR release.
ProComp Opposes Microsoft Antitrust Settlement
1/28. ProComp, an anti Microsoft group, submitted a lengthy comment [PDF] in opposition to the Proposed Final Judgment (PFJ) filed with U.S. District Court (DC) in the case U.S. v. Microsoft.
January 28 was the deadline for the public to submit comments on the proposed settlement, pursuant to the 15 U.S.C. § 16, which is also known as the Tunney Act. It requires that "Before entering any consent judgment proposed by the United States under this section, the court shall determine that the entry of such judgment is in the public interest."
ProComp's comment begins with the statement, "This proposed decree is so ineffective that it would not have prevented Microsoft from destroying Netscape and Java, the very acts that gave rise to this lawsuit. It is so ineffective in controlling Microsoft that it might as well have been written by Microsoft itself."
ProComp asserts that the "public interest" standard under the Tunney Act "is determined in this case by the unanimous legal ruling of the Court of Appeals for the District of Columbia Circuit sitting en banc. That Court held that Microsoft has maintained its monopoly in personal computer operating systems in clear violation of Section 2 of the Sherman Act. No decree that fails to cure that illegality and prevent its recurrence can conceivably serve the public interest."
The comment elaborates that "the proposed settlement takes no steps to remedy Microsoft’s foreclosure of middleware threats from competing Internet browsers and cross platform Java technology, Microsoft’s related efforts to illegally increase the applications barrier to entry protecting its Windows monopoly, or Microsoft’s illegal commingling of browser and other middleware code with Windows. Further, the proposed settlement does not assure that future middleware competitors will have access to the necessary technical information to interoperate properly with Windows, and does not open up the critical Original Equipment Manufacturer ("OEM") distribution channel to these future competitors. Finally, the PFJ ignores the competitive threat to Microsoft’s monopoly presented by server-based distributed applications, and thus fails to address Microsoft’s practice of protecting its monopoly by controlling proprietary interfaces and communications protocols."
ProComp's comment also states that "The proposed decree is riddled with ambiguities and loopholes and grants unilateral, essentially unreviewable, power to Microsoft to define the scope of its own ambiguous obligations. As such, the PFJ is an illusory contract, and unenforceable as a matter of well settled contract law."
The comment argues that "divestiture remains the most effective remedy for Microsoft’s wide ranging unlawful practices. Conduct remedies like the proposed decree are a second best solution, because they rely on the defendants good will to comply."
In conclusion, the ProComp recommends that "the Court must find that the Proposed Final Judgment is not in the public interest. At a minimum, the Court should defer any judgment on the PFJ until the upcoming remedies hearing in the ongoing litigation is conducted. This is necessary to avoid inconsistent remedies."
ProComp's filing also includes a 34 page affidavit signed by Kenneth Arrow, an emeritus professor of economics at Stanford University. His Nobel prize winning career is built upon his "Arrow's Theorem". See, Social Choice and Individual Values, first published in 1951.
Arrow wrote in his affidavit that "As the D.C. Circuit found, Microsoft violated Sec. 2 of the Sherman Act in impermissibly maintaining its monopoly through actions designed to eliminate the threat to that monopoly posed in the mid 1990s by competition from Netscape Navigator and Java middleware. Given that finding, the remedies in this case should eliminate the benefits to Microsoft of its illegal conduct; should restore, if possible, the possibility of competition in operating systems; and should not allow Microsoft to protect its illegally maintained monopoly from current and future competition in related markets, such as server operating systems and Web services. In my opinion, the PFJ fails to accomplish these objectives."
The ProComp comment lists as its authors the famous lawyers Robert Bork and Kenneth Starr. It also lists Michael Pettit of ProComp and Kevin Arquit of the law firm of Clifford Chance. Finally, its lists Glenn Manishin of the law firm of Kelley Drye & Warren. See also, ProComp release.
Privacy News
1/28. Qwest announced that "it is withdrawing its plans to share private customer account information among different divisions in the company. Citing customer concerns, the company said a decision on when and how it might share information within Qwest would be made after the Federal Communications Commission (FCC) has an opportunity to issue new rules, expected later this year." See, Qwest release.
1/29. The Electronic Privacy Information Center (EPIC) wrote a letter to state attorneys general urging them "to take action to protect consumers against unfair and deceptive trade practices raised by Microsoft Corporation’s Passport service and related “Wallet,” “Kids Passport,” “Hailstorm,” and “.Net Services.” These systems unfairly and deceptively gather personal information and expose consumers to the release, sale, and theft of their personal information." Last year, the EPIC unsuccessfully sought a Federal Trade Commission (FTC) investigation of the same practices.
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Notices & Disclaimers
Copyright 1998 - 2002 David Carney, dba Tech Law Journal. All rights reserved.
Tuesday, Jan 29
The House will meet at 12:30 PM for morning hour and 2:00 PM for legislative business.
9:00 PM. The House and Senate will meet in joint session to hear President Bush deliver the State of the Union Address.
Day two of the COMNET Conference & Expo. Location: Convention Center.
3:00 PM. The EPIC will hold a press teleconference regarding its efforts to induce state attorneys general "to take action to protect consumers against unfair and deceptive trade practices raised by Microsoft Corporation's Passport service". See, EPIC letter to state AGs. For more information, contact Chris Hoofnagle at 202 483-1140.
Wednesday, Jan 30
The House will not be in session. (The Republican retreat is being held on January 30 and 31.)
Day three of the COMNET Conference & Expo. Location: Convention Center, Washington DC.
Day one of the 2nd Annual Privacy & Data Security Summit, sponsored by the International Association of Privacy Officers. See, online brochure [PDF]. Location: Hyatt Regency Washington, 400 New Jersey Ave., NW.
8:45 AM - 3:45 PM. The NIST Advanced Technology Program Advisory Committee will hold a partially closed meeting. See, notice in Federal Register. Location: NIST, Administration Building, Employees' Lounge, Gaithersburg, MD.
9:00 AM. The Global Business Dialogue will host a press conference on the Foreign Sales Corporation (FSC) tax regime. For more information, contact Judge Morris at 202 463-5075. Location: First Amendment Room, National Press Club, 529 14th St. NW, 13th Floor.
POSTPONED TO FEB 6. 10:00 AM - 12:00 NOON. The FCC's Advisory Committee for the 2003 World Radiocommunication Conference (WRC-03) will meet. See, FCC notice of postponement [PDF].
12:15 PM. The FCBA's Cable Practice Committee will host a luncheon. The speaker will be Stacy Robinson, Mass Media Legal Advisor to FCC Commissioner Kathleen Abernathy. The price to attend is $15. RSVP to Wendy Parish at Location: National Cable & Internet Association, 1724 Mass. Ave., NW.
Thursday, Jan 31
The House will not be in session. (The Republican retreat is being held on January 30 and 31.)
Day two of the 2nd Annual Privacy & Data Security Summit, sponsored by the International Association of Privacy Officers. See, online brochure [PDF]. Location: Hyatt Regency, 400 New Jersey Ave., NW. Highlights include:
 • 8:15 AM. Howard Beales (Director of the FTC's Bureau of Consumer Protection) will speak on "Privacy Regulation and the Federal Trade Commission".
 • 8:45 AM. Phillip Bond (Dept. of Commerce) will speak on "Privacy and Commerce".
 • 9:15 AM. Amy Friend (Office of the Comptroller of the Currency) will speak on "Privacy and Financial Affairs".
 • 9:45 AM. Kathleen Fyffe (HHS Dept.) will speak on "Healthcare Privacy, Security and HIPAA Compliance".
 • 10:15 AM. Daniel Collins (Chief Privacy Officer of the Justice Dept.) will speak on "Prosecuting Privacy Violations".
 • 12:30 PM. Keynote Panel titled "Privacy in America Following the Terrorist Attacks on the World Trade Center and the Pentagon". The participants will be Agnes Scanlan (CPO of FleetBoston Financial), Gary Clayton (Privacy Council), James Harper (, John Kamp (Wiley Rein & Fielding), Mark Rotenberg (EPIC), David Stampley (AAG, Internet Bureau, Office of the NY Attorney General), Zoe Strickland (CPO of the USPS), Bruce Johnson (Davis Wright Tremaine).
10:00 AM - 12:00 NOON. The ITAA's Telecommunications Committee will meet. For more information, contact Thomas Vincent at Location: ITAA, 1401 Wilson Blvd., Suite 1100, Arlington, VA.
12:30 PM. John Browne, the Director of the Los Alamos National Laboratories, will speak at a luncheon. Location, Ballroom, National Press Club, 529 14th St. NW, 13th Floor.
12:30 - 2:00 PM. The FCBA's International Practice Committee will host a brown bag lunch with FCC Commissioner Kathleen Abernathy. Location: FCC, 445 12th St, SW, 8th Floor, Conference Room 1.
1:00 - 3:30 PM. The FCC's WRC-03 Advisory Committee, Informal Working Group 7: Regulatory Issues and Future Agendas, will meet. Location: The Boeing Company, 1200 Wilson Boulevard, Arlington, VA. (This is near the Rosslyn Metro station.)
7:00 - 8:00 PM. There will be a panel discussion titled "The State of Online Journalism" featuring Rich Jaroslovsky (Wall Street Journal) and Doug Feaver (Washington Post). Location: National Press Club, 529 14th St. NW, 13th Floor.
Friday, Feb 1
The House will meet at 10:00 AM in pro forma session only.
Day three of the 2nd Annual Privacy & Data Security Summit, sponsored by the International Association of Privacy Officers. See, online brochure [PDF]. Location: Hyatt Regency, 400 New Jersey Ave., NW.
12:30 PM. The FCBA will host a luncheon. The speaker will be FCC Commissioner Kevin Martin. There will be a reception at 12:00 NOON. The price to attend is $45 for FCBA members, $35 for government and law student members, and $55 for non-members. Registrations and cancellations due by 5:00 PM on Tuesday, January 29. To register, contact Wendy Parish at Location: Capital Hilton Hotel, 16th & K Streets NW.
12:30 - 2:00 PM. Harold Furchtgott Roth will give a speech titled "A Tough Act to Follow: The Telecommunications Act of 1996". To register, contact Linzey Powers at Location: American Enterprise Institute, Twelfth floor, 1150 Seventeenth St., NW.
Deadline to submit comments to the Federal Election Commission (FEC) in response to its requests comments on the second draft of the revisions to the 1990 national voluntary performance standards for computerized voting systems and the first draft of the revisions to the 1990 national test standards. See, notice in Federal Register.
Monday, Feb 4
9:00 AM. The Cato Institute will release a study titled "The Digital Dirty Dozen" which lists and evaluates the worst high tech legislative proposals of this Congress. The speakers will be Wayne Crews and Adam Thierer. This study will be released at an invitation only press breakfast. For more information, contact Jerry Brito at 202 218-4621. Location: Cato, 1000 Mass. Ave., NW.
10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Telecom Technical Services v. Siemens Rolm. Plaintiffs sued Seimens Rolm alleging violation of federal antitrust laws; they alleged monopolization of alleged markets for telecommunications equipment; they also sought class action status. Seimens asserted various counterclaims, including patent infringement. The U.S. District Court (NDGa) denied class action status. (This is Appeals Court No. 01-5090 and D.C. No. 95-CV-549-WBH.) Location: Courtroom 201, 717 Madison Place, NW.
Deadline to submit petitions and comments to the FCC's Cable Services Bureau regarding the applications of Hughes Electronics Corporation and EchoStar Communications Corporation to the FCC requesting consent to the transfer of control of licenses and authorizations involved in the EchoStar DirecTV merger. See, FCC notice [MS Word]. Oppositions and responses are due by February 25, 2002. This is CS Docket No. 01-348.