| Bush Advocates Passage of
Trade Promotion Authority Bill |
2/8. President Bush gave a speech
to the Cattle Industry Annual Convention and Trade Show in
Denver, Colorado, in which he advocated legislation granting
the President trade promotion authority.
Trade promotion authority, which is also known as fast track,
would give the President authority to negotiate trade
agreements that could only be approved or rejected, but not
amended, by the Congress. The House passed its version of the
bill, HR 3005,
on December 6, 2001. The Senate Finance
Committee has approved a Senate version of the bill.
Bush stated that "We want to open up markets, and at the
same time, we want to make sure others open up their markets
for us". He added that "You can help by making sure
the Senate hears that message, that the Senate passes a trade
promotion bill which gives me the authority to work hard to
open up markets all around the world for those who work hard.
I need that authority. It's good for America to have that
authority." |
|
|
| Treasury Official Condemns
Proposed EU E-Commerce Taxes |
2/8. Kenneth Dam, Deputy Treasury Secretary, released a statement
explaining and condemning the European Union's
(EU) proposed value added tax (VAT) on e-commerce goods and
services. He stated that "The Administration has serious
concerns about a European Union proposal to apply value added
taxes (VAT) to imports of certain e-commerce goods and
services."
Dam summarized the EU proposal: "U.S. sellers of goods or
services digitally delivered to EU consumers may soon be
required to register in the EU and charge EU VAT, at the VAT
rate that applies in the consumer's country of residence.
Conversely, EU companies that sell digitally delivered
products to EU consumers would continue to charge VAT at the
rate applicable in the companies' country of establishment,
regardless of where in the EU the consumer is resident."
This, wrote Dam, means that "U.S. sellers may be required
to charge VAT on sales to an EU consumer at a rate higher than
their EU competitors would charge on sales of the same product
to the same consumer."
Dam also stated that "Furthermore, EU VAT on digitally
delivered products may be imposed at a rate higher than on
physically delivered equivalents. For example, in many EU
countries, the VAT rate applied to sales of digitally
delivered books, newspapers and magazines may be higher than
that applied to sales of the same books, newspapers and
magazines sold in physical form."
Dam asserted in conclusion that the EU proposal "may
potentially be inconsistent with international trade
obligations in the World Trade
Organization, in particular the commitment to accord
national treatment to foreign goods and services." He did
not state what actions the U.S. might take, if any, other than
to "continue to work with the EU". |
|
|
| USTR to Contest Sanctions
in WTO FSC Tax Matter |
| 2/8. The Office of the U.S.
Trade Representative (USTR) announced that it filed a
submission with the World Trade Organization (WTO) stating
that the U.S. would challenge the amount of trade sanctions
claimed by the European Union in the Foreign Sales Corporation
(FSC) dispute. See, USTR release. |
|
|
| Trade Hearings |
2/7. The House Ways
and Means Committee held a hearing on trade negotiations.
See, prepared
testimony of USTR Robert Zoellick. See also, prepared
statements of members of the Committee: Rep.
Bill Thomas (R-CA), Rep.
Charles Rangel (D-NY), Rep.
Sander Levin (D-MI), and Rep.
Jim Ramstad (D-MN).
2/6. The Senate
Finance Committee held a hearing on trade negotiations.
See, prepared
testimony [PDF] of USTR Robert Zoellick. See also,
prepared testimony [PDF] of other witnesses: George
Scalise (President of the Semiconductor Industry
Association), Gary
Broyles (Nat. Assoc. of Wheatgrowers), Arthur
Wainwright (National Association of Manufacturers), Barb
Determan (National Pork Producers Council). See also, opening
statement of Sen. Max
Baucus (D-MT) and opening
statement of Sen.
Charles Grassley (R-IA). |
|
|
| OCC Closes Internet Bank |
| 1/7. The Office of the
Comptroller of the Currency (OCC) closed NextBank, an
Internet bank with no branch operations that marketed credit
cards over the Internet. The Federal Deposit Insurance
Corporation (FDIC) was appointed receiver. The OCC, which
charters, regulates and examines national banks, stated in a release
that it found that NextBank "was operating in an unsafe
and unsound manner and had experienced a substantial
dissipation of assets and earnings through unsafe and unsound
practices." |
|
|
| People and Appointments |
2/4. Michael Yoshii joined the Tokyo office of the
law firm of Latham & Watkins
as a partner. He previously worked for the law firm of White & Case. He
focuses on venture capital and technology transactions. See, LW release.
2/8. The law firm of Perkins
Coie announced promotions to partner and of counsel,
including the following: Elizabeth Woodcock was named
partner in the Denver office. Her practice includes
telecommunications law. Garrett Tuttle was named of
counsel in the Denver office. His practice includes
intellectual property law with a focus on trademarks. Neil
Nathanson was named partner in the Portland office. He
focuses on corporate finance and securities law, mergers and
acquisitions and computer and Internet law. Mei Yin Lim
was named of counsel in the Hong Kong office. She focuses on
international business transactions including PRC investment
in manufacturing, service and infrastructure projects,
intellectual property right counseling, prosecution and
enforcement, franchising and distribution, and corporate
structuring, mergers and acquisitions. Donald Walther
was named partner in the Seattle office. His practice includes
intellectual property enforcement, antitrust, and other
litigation areas. John Clark was named of counsel in
the Washington DC office. His practice includes
telecommunications law, with emphasis on historic preservation
law. Mark Wasden was named of counsel in the Washington
DC office. His practice includes international trade,
including matters involving customs, export control and
antidumping. See, PC
release.
2/6. Gregory Gundlach, a professor of marketing at the
University of Notre Dame, was named a Senior Research Fellow
of the American
Antitrust Institute. |
|
|
| More News |
2/7. Rep. David
Dreier (R-CA), Chairman of the House Rules Committee,
announced that the deadline for Members to offer amendments to
HR 1542,
the Tauzin Dingell bill, is 4:00 PM on Monday, February 25.
See, Cong. Rec., Feb. 7, 2002, at H217.
2/7. The National Cyber Security Alliance (NCSA) launched a
web site name Stay
Safe Online that encourages PC users to undertake security
measures to protect home and small business computer systems
and networks. It advocates the use of firewalls and anti virus
software, regular installation of patches, and not opening
e-mail from unknown sources. The NCSA's membership includes
the Critical Information
Assurance Office (CIAO), the Federal
Trade Commission (FTC), other government entities, the Information Technology Association
of America (ITAA), the U.S.
Chamber of Commerce, other groups, and technology and
phone companies. "A key part of homeland defense is
protecting every computer including home users and small
business. ... Citizens don't realize how much damage can be
done by people using your computers remotely without your
knowing it. This campaign will enlighten and empower consumers
to take action," said Dick Clarke, Special Advisor to the
President for Cyberspace Security, in a release.
See also, Cisco
release, ITAA
release, and Chamber
release.
2/8. Federal Reserve
Board Governor Mark Olson
gave a speech
titled "Implementing the Gramm Leach Bliley Act: Two
Years Later" to the American Law Institute and American
Bar Association in Washington DC.
2/8. February 8, 2002 was the 6th anniversary of former
President Clinton's signing of the Telecommunications Act of
1996. |
|
|
|
| Spectrum Rebel Loses First
Amendment Appeal |
2/8. The U.S.
Court of Appeals (DCCir) issued its opinion
in Grid
Radio v. FCC, a case involving an FM radio
broadcaster who operated without an FCC license. The Appeals
Court affirmed the FCC's cease and desist order, and fine,
over a First Amendment challenge.
Background. Jerry Szoka operated Grid Radio,
an unlicensed low power FM radio station in Cleveland, Ohio.
He neither sought nor obtained a license from the Federal Communications Commission
(FCC), as required by 47 U.S.C.
§ 301. The FCC ordered him to stop broadcasting. He
argued, among other things, that the FCC violated his First
Amendment rights. The Supreme Court has long since upheld the
FCC's power to regulate broadcast speech. See, National
Broadcasting Company v. United States, 319 U.S. 190 (1943)
and Red
Lion v. FCC, 395 U.S. 367 (1969).
Appeals Court Holding. A three judge panel of the Court
of Appeals held that the FCC's cease and desist order did not
violate the First Amendment, citing the Red Lion case. Judge
David Tatel, writing for the Court, acknowledged briefly
that the Supreme Court might some day revisit the scarcity
rational for broadcast regulation. However, he added that
"Absent clear congressional or judicial signals that the
micro broadcasting ban was unlawful, or unequivocal evidence
that Grid Radio's circumstances warranted differential
application of the ban, we think the Commission could continue
to enforce the ban and the chaos averting licensing
regime." Judge Tatel did not specify what standard of
review he applied in this case.
However, while the Court of Appeals rejected Szoka's First
Amendment challenge to the spectrum licensing regime, the
Court of Appeals, in a companion case, Ruggiero v. FCC,
held unconstitutional the much more limited ban on former
pirate broadcasters obtaining a low power FM license. The Ruggiero
opinion (see following story) offers an analysis of First
Amendment protections in the context of FCC regulation of
speech that contains more length, but perhaps, not more
clarity. |
|
|
| Appeals Court Overturns Ban
on Licensing Former Pirate Broadcasters |
2/8. The U.S.
Court of Appeals (DCCir) issued its opinion
in Ruggiero
v. FCC, another case involving unlicensed
broadcasting. The Appeals Court held unconstitutional the ban
on issuance of low power FM radio broadcast licenses to anyone
who has previously engaged in an unlicensed operation.
Background. The Radio
Broadcasting Preservation Act of 2000 (RBPA)
permanently prohibits anyone who ever "engaged in any
manner in the unlicensed operation of any station in violation
of ... the Communications Act of 1934" from obtaining a
low power FM radio license from the Federal Communications Commission
(FCC). Greg Ruggiero is a former pirate broadcaster who later
sought a low power FM license from the FCC. He argues that the
statute and the FCC's implementing rules
violate his First and Fifth Amendment rights.
Standard of Review. The Appeals Court reviewed
precedent, including FCC
v. National Citizens Committee for Broadcasting, 436 U.S.
775 (1978), FCC
v. League of Women Voters, 468 U.S. 364 (1984), and News
America Publishing v. FCC, 844 F.2d 800 (D.C. Cir. 1988),
and then concluded that it need not identify the standard of
review to be applied. It wrote that "we find ourselves in
a middle ground, sure only that the appropriate standard is
neither NCCB's minimal scrutiny nor League of Women Voters'
intermediate scrutiny."
Holding. Nevertheless, the Court held that the ban was
constitutionally impermissible because of the relationship of
the ban to the underlying purpose of the statute and
implementing regulations. It found that the class of
applicants banned from receiving low power FM licenses is
under inclusive. It wrote, citing News America, that
"we find the character qualification provision so poorly
aimed at maximizing future compliance with broadcast laws and
regulations as to ``raise[ ] a suspicion´´ that perhaps
Congress's ``true´´ objective was not to increase regulatory
compliance, but to penalize micro broadcasters' ``message.´´
"
The Court concluded that "we cannot sanction an automatic
and permanent restriction on unlicensed broadcasters' future
lawful speech without understanding why their misdeeds warrant
a penalty so much more severe than that applied to any other
misconduct. Yet neither the RBPA itself, nor the legislative
history, nor the record in this case provides a satisfactory
explanation. We thus have no choice but to declare the statute
and the Commission's implementing regulation
unconstitutional."
Dissent. Judge Tatel wrote the opinion for a three
judge panel. Judge Rogers joined. Judge
Karen Henderson wrote a dissent. She wrote: "What
could be more reasonable or logical than to suspect that those
who ignored the Commission's LPFM broadcast regulations in the
past are likely to do so in the future and therefore to head
them off. ... I see no reason the legislature cannot
permissibly tackle a single part of a perceived problem
(including one touching on the First Amendment) through a
statute, such as the one here, which is neither overinclusive
nor underinclusive." |
|
|
| NTIA Director Addresses
Broadband |
2/8. Nancy Victory, Director of the National Telecommunications
and Information Administration (NTIA), gave a speech
titled "Creation of a Broadband Universe: A Big Band
Theory" at the Alliance for Public Technology Broadband
Symposium in Washington DC. She repeated themes from earlier
speeches, and reiterated that the Bush administration is not
yet ready to announce a broadband policy.
She stated that "regulators are searching for the right
regulatory mix or Big Bang to provide the foundation for the
broadband universe. Though possibly only slightly less
challenging than the scientists' job, our task is no less
important because our work can propel broadband deployment, if
we get it right, or postpone it, if we don't. We're still
completing our research, and aren't yet prepared to announce
the Administration's views on the government's role in
ensuring that the entire nation benefits from broadband's
``big bang.´´ "
She listed several vague guidelines. She stated that "the
market, not government, should drive broadband's roll-out.
Government's role is to remove the regulatory roadblocks that
impede efficient capital investment." However, she
qualified this by adding that "the market might not
always work as well or at the same pace in all areas,
particularly in rural and certain urban areas."
She stated that "Facilities based competition has always
been a desired means," but added that "there should
be reasonable opportunities for resale competition as
well". |
|
|
| Internet Securities Fraud |
2/5. The Securities and
Exchange Commission (SEC) filed a civil complaint
in U.S. District Court
(CDCal) against Alexander Naujoks and others alleging
violation of federal securities laws in connection with
misrepresentations regarding purported businesses that provide
an online reservation system and an online competitive sports
league.
The complaint alleges that Naujoks and companies that he
created are selling stock in "purported online business
operations" through cold calling and a web site, and in
so doing, have made numerous material misrepresentations, in
violation of the securities registration provisions of
Sections 5(a) and 5(c) of the Securities Act of 1933, 15
U.S.C. §§ 77e(a) & 77e(c), and the antifraud provisions
of Section 17(a) of the Securities Act, 15 U.S.C. § 77q(a),
and Section 10(b) of the Securities Exchange Act of 1934, 15
U.S.C. § 78j(b), and Rule 10b-5 thereunder, 17 C.F.R. §
240.10b-5. See also, SEC
release. |
|
|
| About Tech Law Journal |
Tech Law Journal publishes a free access web site and
subscription e-mail alert. The basic rate for a subscription
to the TLJ Daily E-Mail Alert is $250 per year. However, there
are discounts for entities with multiple subscribers. Free one
month trial subscriptions are available. Also, free
subscriptions are available for law students, journalists,
elected officials, and employees of the Congress, courts, and
executive branch, and state officials. The TLJ web site is
free access. However, copies of the TLJ Daily E-Mail Alert and
news items are not published in the web site until one month
after writing. See, subscription
information page.
Contact: 202-364-8882; E-mail.
P.O. Box 4851, Washington DC, 20008.
Privacy
Policy
Notices
& Disclaimers
Copyright 1998 - 2002 David Carney, dba Tech Law Journal. All
rights reserved. |
|
|
|
| Bush Picks Adelstein for
FCC Commissioner |
2/8. President Bush announced his intent to nominate
Jonathan Adelstein to be a Commissioner of the Federal Communications Commission
(FCC) for the remainder of a five year term expiring June 30,
2003. That Bush would nominate Adelstein has been previously
reported. He will be nominated for the position left vacant by
the retirement of Gloria Tristani.
Adelstein has been a Legislative Assistant for Sen. Tom Daschle (D-SD)
since 1995. Before that, he worked for former Sen. David Pryor
(D-AR). And before that, he was a Legislative Assistant to
former Sen. David Riegle (D-MI). See, White
House release. |
|
|
| Monday, Feb 11 |
The House will not be in session.
The Senate will convene at 2:00 PM for morning business. At
3:00 PM, the Senate will resume consideration of S 1731,
the farm bill. At 5:45 PM, the Senate will consider the
nominations of Michael Melloy to be U.S. Circuit Judge for the
8th Circuit and Jay Zainey to be U.S. District Judge. |
|
|
| Tuesday, Feb 12 |
The House will meet at 12:30 PM for morning hour and 2:00 PM
for legislative business. The House will consider a number of
bills under suspension of the rules. At 5:30 PM the House will
consider HRes 344,
a rule for consideration of HR 2356,
the campaign finance bill.
9:30 AM. The U.S. Court of Appeals
(DCCir) will hear oral argument in WorldCom v. FCC,
No. 01-1218. Judges Tatel, Garland and Williams will preside.
9:30 AM. The Senate
Governmental Affairs Committee's Subcommittee on
International Security, Proliferation and Federal Services
will hold a hearing to examine multilateral non-proliferation
regimes, weapons of mass destruction technologies, and the war
on terrorism. Location: Room 342, Dirksen Building.
10:00 AM. The Senate
Banking Committee will hold a hearing on accounting and
investor protection issues surrounding the problems with Enron
and other public companies. The witnesses will be five former
Chairmen of the SEC, Roderick
Hills, Harold Williams, David Ruder, Richard Breeden, and
Arthur Levitt. Location: Room 538, Dirksen Building.
11:00 AM. The FTC will announce a
"three point program to crack down on deceptive
spam." FTC Chairman Timothy Muris will speak. See,
FTC
release. Location: FTC Internet Lab, Room 279, 600
Pennsylvania Ave., NW.
12:15 PM. The FCBA's
Common Carrier Committee will host a brown bag lunch. Kathleen
Abernathy (FCC Commissioner) and Nanette
Thompson (Chair of the Regulatory Commission of
Alaska) will speak about universal service. RSVP to
Rhe Brighthaupt at rbrighth
@wrf.com. Location: Wiley
Rein & Fielding, 1750 K St., NW, 10th Floor.
12:15 PM. The FCBA's
Transactional Practice Brown Committee will host a brown bag
lunch on wireless transactions. RSVP to Tina Screven at 202
383-3337. Location: Wilkinson
Barker & Knauer, 2300 N Street NW.
2:30 PM. The Senate
Foreign Relations Committee will hold a hearing to examine
the theft of American intellectual property at home and
abroad. Location: Room 419, Dirksen Building.
4:00 PM. The House
Judiciary Committee's Crime Subcommittee will hold a
hearing on HR 3482,
the "Cyber Security Enhancement Act of 2001",
sponsored by Rep.
Lamar Smith (R-TX). Location: Room 2237, Rayburn Building. |
|
|
| Wednesday, Feb 13 |
The House will likely begin its consideration of HR
2356, the campaign finance bill.
Day one of a three day conference titled Biometric
Consortium Conference. The sponsors include the
Information Technology Laboratory (ITL) and the Advanced
Technology Program (ATP) of the National Institute of
Standards and Technology (NIST), the National Security Agency
(NSA), the Department of Defense's Biometric Management Office
(BMO), the General Services Administration (GSA), and the
Federal Technology Service (FTS) Center for Smart Card
Solutions. This conference has been rescheduled from September
12-14, 2001. See, conference
web site. Location: Hyatt Regency Crystal City, Arlington,
VA.
10:00 AM - 12:00 NOON. The House Science Committee
will hold a hearing titled "R&D Budget for Fiscal
Year 2003: An Evaluation". Location: Room 2318, Rayburn
Building.
11:00 AM. The Cato Institute
will host a panel discussion titled "Trade War or Tax
Reform? The WTO Ruling on Tax Breaks for U.S. Exporters".
The panelists will be Rep.
Phil Crane (R-IL), Chairman of the Trade Subcommittee of
the House Ways and
Means Committee, William Reinsch, National
Foreign Trade Council, John Meagher, Price Waterhouse Coopers,
and Chris Edwards, Cato. Cato will web cast the event. A
luncheon will follow the program. See, Cato event
summary. Location: Cato, 1000 Massachusetts Ave., NW.
2:00 PM. The Senate
Judiciary Committee's Administrative Oversight and the
Courts Subcommittee will hold a hearing titled
"Administrative Oversight: Are We Ready For A Cyber
Terror Attack?". Sen.
Charles Schumer (D-NY) will preside. Location: Room 226,
Dirksen Building.
5:00 - 7:00 PM. The Congressional
Internet Caucus Advisory Committee will host an event
titled "Reception and Technology Fair". Each of the
Co-chairs of the Internet Caucus, Sen. Patrick Leahy (D-VT),
Sen. Conrad Burns
(R-MT), Rep. Bob
Goodlatte (R-VA) and Rep. Rick Boucher
(D-VA), is likely to speak. The Co-chairs of the Wireless Task
Force, Sen. John Ensign
(R-NV) and Rep. Mike
Honda (D-CA), are likely to speak also. Location: Room
902, Hart Building. |
|
|
| Thursday, Feb 14 |
The House will likely continue its consideration of HR
2356, the campaign finance bill.
Day two of a three day conference titled Biometric
Consortium Conference. See, conference
web site. Location: Hyatt Regency Crystal City, Arlington,
VA.
The Forum on Technology and Innovation (Tech Forum) will hold
a event relating to cyber security. The speakers will
be Richard Clarke (Special Advisor to the President for
Cyberspace Security), Vint Cerf (WorldCom), and Bruce
Schneier (CTO of Counterpane
Internet Security). The Tech Forum was founded by Sen. Bill Frist (R-TN), Sen. Jay Rockefeller
(D-WV), and the Council on
Competitiveness.
9:30 AM. The FCC will hold a
meeting. See, FCC
release and agenda at right. Location: Commission Meeting
Room, Room TW-C305, 445 12th St., SW.
10:00 AM. The House
Judiciary Committee's Subcommittee on Courts, Internet and
Intellectual Property will hold a hearing on the "Federal
Trademark Dilution Act." Location: Room 2141, Rayburn
Building.
2:30 PM. The Senate
Judiciary Committee's Technology, Terrorism, and
Government Information Subcommittee will hold a hearing on privacy,
identity theft, and protection of personal information. Sen. Dianne Feinstein
(D-CA) will preside. Location: Room 226, Dirksen Building. |
|
|
| Friday, Feb 15 |
The House will not be in session.
Day three of a three day conference titled Biometric
Consortium Conference. See, conference
web site. Location: Hyatt Regency Crystal City, Arlington,
VA.
8:00 AM - 2:00 PM. The National
Science Foundation's (NSF's) Advisory Committee for
Cyberinfrastructure will hold an open meeting. See, notice
in Federal Register. Location: Room 1150, NSF, 4201 Wilson
Blvd., Arlington, VA.
9:30 AM. The U.S.
Court of Appeals (DCCir) will hear oral argument in New
World Radio v. FCC, No. 1110. Judges Henderson, Randolph
and Rogers will preside.
12:00 NOON. Deadline to submit comments to the Office of the U.S. Trade Representative
(USTR) regarding foreign countries that deny adequate and
effective protection of intellectual property rights or deny
fair and equitable market access to U.S. persons who rely on
intellectual property protection. The USTR requests comments
pursuant to its duties under § 182 of the Trade Act of
1974, 19
U.S.C. § 2242, which is better known as the "Special
301" provisions. See, notice
in the Federal Register.
Extended deadline to file reply comments with the FCC in its
proceeding regarding cross ownership of broadcast stations
and newspapers. This is MM Docket No. 01-235. See, notice
in Federal Register. |
|
|