|FCC Declares that
EchoStar's Two Dish Plan Violates Statute and Rules
|4/4. The Federal
Communications Commission (FCC) issued a Declaratory
Ruling and Order [21 pages in PDF] in which it declared
two dish plan violates both the Satellite Home Viewer
Improvement Act of 1999 (SHIVA) and the FCC's regulations.
EchoStar, which is also known as the Dish Network, provides
direct broadcast satellite (DBS) television service. EchoStar
has placed some local stations in particular markets on ``wing
slot´´ satellites. As a result, some EchoStar subscribers
are required to use a second satellite dish antenna to receive
and view these local stations.
The FCC wrote that "The SHVIA grants satellite carriers a
royalty free copyright license that enables satellite carriers
to make secondary transmissions of a broadcast station’s
signal into that station's local designated market area (``DMA´´)
without obtaining the authorization of those holding
copyrights in the individual programs broadcast by that
station. In exchange, the law requires that, by January 1,
2002, if a satellite carrier carries one local broadcast
station in a local market pursuant to this license, it must
carry all qualified local broadcast stations in the market
upon request. This requirement is also known as the ``carry
one, carry all´´ rule." (Footnotes omitted.)
The SHIVA also provides, at 47 U.S.C.
§ 338(d), that "the satellite carrier shall
retransmit the signal of the local television broadcast
stations to subscribers in the stations' local market on
contiguous channels and provide access to such station's
signals at a nondiscriminatory price and in a
nondiscriminatory manner on any navigational device, on-screen
program guide, or menu."
The FCC did not amend its rules, or initiate a rule making
proceeding. Nor did it interpret its rules to prohibit the use
of a second dish antenna. Rather, it issued a declaratory
ruling that "EchoStar's ``two-dish plan,´´ as
implemented, violates Section 338(d) of the Act and Section
76.66(i) of the Commission's rules."
The FCC continued that "we find that EchoStar's offer of
a ``free´´ dish has not been implemented as such and, in
these instances, constitutes a violation of the statutory and
regulatory prohibition of providing access to certain stations
at a discriminatory price. In addition, we find that EchoStar
does not, as required, retransmit the signal of local
television broadcast stations to subscribers on contiguous
channels and provide access to local television broadcast
station signals in a nondiscriminatory manner on its on-screen
program guide or menu. In essence, although it may be possible
to offer certain local stations by use of a second antenna
without engaging in prohibited conduct, we find that EchoStar
has not done so in this case."
Ken Ferree, Chief of the FCC's Media Bureau, said in a release
that "we took an important and necessary action to ensure
that all broadcast stations are carried in a non-
discriminatory manner. EchoStar's two dish plan was
implemented in such a way as to make some stations unavailable
to subscribers as a practical matter."
|9th Circuit Rules in Post
Sale Trademark Case
|4/4. The U.S.
Court of Appeals (9thCir) issued its opinion
[PDF] in Karl
Storz Endoscopy v. Surgical Technologies, a
post sale trademark case involving rebuilt surgical
Storz Endoscopy (Storz) makes endoscopes. Endoscopes are
fiber optic based surgical instruments used in minimally
invasive surgical and diagnostic procedures, such as
arthroscopy, urology and gynecology, to obtain a focused and
illuminated view inside the body. Surgical Technologies (Surgi
Tech) repairs endoscopes, including complete rebuilds. Storz
asserts that Surgi Tech's rebuilds replaced "essentially
all of the endoscope's functional parts," retaining only
the block element bearing Storz's trademarks. Surgi Tech did
not put its own mark on these rebuilt endoscopes. Pacific
Medical Repair acts as an intermediary between hospitals and
District Court. Storz filed a complaint in U.S. District Court (SDCal)
against Surgi Tech and Pacific alleging trademark and trade
dress infringement, unfair competition and passing off in
violation of the Lanham Act, 15 U.S.C. § 1051 et seq., and
unfair trade practices in violation of California Business and
Professions Code § 17200 et seq. The District Court granted
summary judgment to Pacific and summary judgment in part to
Surgi Tech. Storz appealed.
Appeals Court. The Appeals Court held both that Surgi
Tech's rebuilding of endoscopes involved the use of marks in
commerce. It also held that there were material issues of fact
regarding the likelihood of post sale confusion. Hence, it
reversed and remanded.
|Commerce Dept. Official
Addresses Technology Policy
|4/4. Bruce Mehlman, of the Department of Commerce's Technology Administration,
gave a speech
titled "Technology Led Economic Development in the Post
Bubble, Post 9/11, Post Enron America" at the National
Governors' Association Regional Competitiveness Forum in
Mehlman stated that "State and regional public policies
directly impact the pace of economic growth, high wage job
creation, and global investment. Decisions made at the local
level play a critical role in establishing the environment
needed to let innovators innovate and entrepreneurs create
jobs, companies, and community wealth." He continued that
there are "four basic steps community leaders can take to
help set the business climate to sustain technology
growth", promote innovation, support entrepreneurship,
improve infrastructure and empower people.
With respect to innovation, he advocated "Supporting
research excellence, at universities, federal labs and
industry; protecting intellectual property rights and
encouraging technology transfer; providing a certain and
navigable regulatory framework that prioritizes innovation;
and encouraging linkages and consortia between knowledge
creators and commercializers".
With respect to entrepreneurship, he advocated "pursuing
tax policies that encourage investment and risk capital;
supporting trade inside and outside the cluster, encouraging
entrepreneurship education at all levels; and supporting
With respect to infrastructure, he stated that "the
telecommunications infrastructure is particularly critical in
the information age, with broadband networks holding a key to
enterprise efficiency and cross cluster productivity.
Communities around the country are beginning to employ a
number of strategies to boost broadband deployment and usage.
The localities that create the most broadband friendly
environments may be like the localities that attracted
railroads in the last century, while the localities that don't
prioritize bandwidth may end up like the towns by-passed by
He also reviewed policies of the Bush administration related
to technology, including proposals for increased research and
development funding and increased funding for the U.S. Patent
and Trademark Office, support for trade promotion authority
legislation, support of amending the Export Administration
Act, cybersecurity initiatives, and promoting e-government.
Mehlman is Assistant Secretary for Technology Policy at the U.S. Department of Commerce.
|4/4. The Department of Commerce's National Telecommunications
and Information Administration (NTIA) began its two day
"Spectrum Summit". The summit is addressing spectrum
allocation and efficiency, the spectrum requirements of new
technologies, and regulatory processes. It continues on
Friday, April 5, in the Ronald Reagan International Trade
Center, 1300 Pennsylvania Avenue, NW. See, keynote speech
by Commerce Secretary Donald
stated in a release
that "it has been informed by the U. S. Securities and
Exchange Commission (SEC) that it has approved a formal order
of investigation of the company. The order covers the same
subject matters as the SEC's informal investigation that Qwest
4/4. The U.S. Patent and
Trademark Office (USTR) published a notice
in its web site regarding "Processing of Papers Filed
After Allowance of an Application".
|President Bush Addresses
Trade Promotion Authority
|4/4. President Bush gave a speech
on trade promotion authority at the Department of State in
Washington DC. He called on the Senate to pass a bill by April
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 approved a Senate version of the bill later in
President Bush stated, "I believe strongly in trade. I
believe not only is trade in my nation's interests, I think
trade is in the interest of those nations who struggle with
poverty, that desire a route out of poverty."
He continued that "trade is important for American
workers, too. Lost in the debate on trade here at home is the
fact that many people are able to find better jobs as the
result of an active trade policy in the United States. And so
we're here to talk about a way to make sure that our nation
trades and our nation works with other countries in the world
to trade. In order for that to do so, the United States Senate
must past trade promotion authority. I need that authority.
Every day we go by without the authority is another day we are
missing opportunities to help our economy, to help our
workers, to help our country, to relate to our friends around
the world. If the Senate acts to give me trade promotion
authority -- and I expect them to do so -- I will use it to
expand commerce and work for higher-paying jobs for American
workers. And so today, I urge the Senate leadership to lead,
to act, and to get this bill to my desk."
Bush also stated that "In eight years since the TPA, the
trade promotion authority, expired, we have missed a lot of
opportunity in America. And it's cost -- and when you miss
opportunity, it tends to affect the average worker in our
country. More than 150 regional free trade and customs
agreements exist throughout the world; the European Union is
party to 31 of them; Mexico is party to 10; the world's
largest economy is party to three. While we've been marking
time, our competitors have been working, and they've been
signing agreements. While we have been delaying, they've been
President Bush also reviewed recent trade accomplishments and
pending trade negotiations.
President Bush concluded: "The United States Senate needs
to affirm America's trade leadership, and bring both measures
I've talked about today -- the trade promotion authority, and
the Andean trade preference act -- to the floor by April
Sen. Charles Grassley
(R-IA), the ranking Republican on the Senate Finance
Committee, responded that "The President's right.
Every day without Trade Promotion Authority is another day the
United States can't fully advance the interests of its
farmers, workers and businesses at the negotiating
table." See, Grassley
Application of Doctrine of Misuse to Anti Circumvention Rights
Burk, a law professor at the University of Minnesota, gave
a lecture at the George
Washington University Law School on the topic of anti
circumvention misuse. He argued that the anti circumvention
provisions of the DMCA create a new form of intellectual
property right, that this right is ripe for abuse, and that it
should be subject to the equitable doctrine of misuse, as
applied in patent and copyright cases.
The Digital Millennium Copright Act (DMCA), 17
U.S.C. § 1201, was enacted by the Congress in 1998. It
provides at § 1201(a)(1) that "No person shall
circumvent a technological measure that effectively controls
access to a work protected under this title." It further
provides at § 1201(a)(2) that "No person shall
manufacture, import, offer to the public, provide, or
otherwise traffic in any technology, product, service, device,
component, or part thereof, that (A) is primarily designed or
produced for the purpose of circumventing a technological
measure that effectively controls access to a work protected
under this title; (B) has only limited commercially
significant purpose or use other than to circumvent a
technological measure that effectively controls access to a
work protected under this title; or (C) is marketed by that
person or another acting in concert with that person with that
person's knowledge for use in circumventing a technological
measure that effectively controls access to a work protected
under this title."
Prof. Burk noted that, unlike the exclusive rights in
copyrighted works provided by 17 U.S.C.
§ 106, the anti circumvention provisions of the DMCA are
not subject to the fair use limitations of 17 U.S.C.
§ 107. However, Prof. Burk focused -- not on possible
legislative amendment of the DMCA -- but rather on possible
court imposed limitations on the exercise of DMCA rights based
upon competition law principles and the doctrine of misuse,
such as have been applied to a limited extent in patent and
Burk argued that the anti circumvention rights of the DMCA may
be used for purposes other than preventing unauthorized
copying or distribution of copyrighted works. He elaborated
that the DMCA has provided new licensing opportunities. That
is, the DMCA gives the holder of the access control technology
a private right of action against someone who traffics in a
circumvention technology. This holder may bring suit to enjoin
the trafficker. Alternatively, the holder may contract not to
bring suit, subject to an agreement by the trafficker to make
Hence, argues Burk, the DMCA creates a right to exclude,
analogous to that of the Patent Act, and allows parties to
enter into agreements that are in the nature of licensing
agreements, as the Patent Act contemplates. This licensing
process may be used, for example, to impose anti competitive
licensing terms, or to suppress competing technologies. And,
some leveraging of the DMCA, says Prof. Burk, should be
judicially interpreted to be an abuse of intellectual property
rights under the doctrine of misuse.
He cited the case of Brulotte v. Thys, 379 U.S. 29
(1964), in which the Supreme Court held that a patent holder's
attempt to collect royalties beyond the term of the patent
constituted misuse of the patent. Prof. Burk acknowledged that
the U.S. Court of Appeals (FedCir),
which has jurisdiction over appeals from patent cases, views
the misuse doctrine with disfavor, and will apply it only in
clear cases, such those matching the facts of Brulotte.
However, he stated that other circuit courts have been more
willing to apply the doctrine of misuse in copyright cases.
While Prof. Burk did not focus on legislative changes, some
Members of Congress, such as Rep. Rick Boucher
(D-VA), have advocated amending the DMCA. See, for example, speech
of March 6, 2001, in which he stated that "Several of us
made an effort in 1998 to limit the new crime under Section
1201 to circumvention for the purpose of infringement. But in
the momentum to enact the measure, essentially unamended, we
were not able to have that change adopted. With the growing
realization on the part of the education community, and
supporters of libraries, of the threat to fair use rights
which Section 1201 poses, perhaps the time will soon come for
a Congressional reexamination of this provision. Perhaps the
only conduct that should be declared criminal is circumvention
for the purpose of infringement. Perhaps a more limited
amendment could be crafted to ensure the continued exercise of
fair use rights of libraries, and in scholastic settings,
notwithstanding the provisions of Section 1201."
Burk spoke to a group of faculty, students, and others at The
George Washington University Law School, as part of a lecture
series sponsored by The Dean Dinwoodey Center for Intellectual
Burk has also written a draft paper. However, it is not sited
or quoted herein because it is subject to a "do not site
or quote without author's permission" restriction. Prof.
Burk can be reached at email@example.com.
|Harvey Pitt Addressed
| 4/4. Securities and
Exchange Commission (SEC) Chairman Harvey
Pitt gave a speech
to the Kellogg Graduate School of Management and Northwestern
Law School in Chicago, Illinois. He stated that "we need
to revisit whether our system of corporate governance is set
up to assist corporate leaders in making rational
determinations about what the right thing to do is".
He continued that "There are a number of ways current
corporate governance standards can be improved to strengthen
the resolve of honest managers and the directors who oversee
management's actions and make them more responsive to the
public's expectations and interests. We think the best way to
do that is a two fold approach: first, make certain that
officers and directors have a clear understanding of what
their roles are, and second, apply serious consequences to
those who do not live up to their fiduciary obligations."
|Friday, April 5
|The House and Senate are both in recess for the Spring
District Work Period.
The Supreme Court of the U.S. is on recess until Monday, April
8:30 AM - 4:15 PM. Day two of a two day event hosted by the
Department of Commerce's National
Telecommunications and Information Administration (NTIA)
titled "Spectrum Summit". The summit will address
spectrum allocation and efficiency, the spectrum requirements
of new technologies, and regulatory processes. See, NTIA
notice and notice
in Federal Register. Location: Ronald Reagan International
Trade Center, 1300 Pennsylvania Avenue, NW.
9:00 AM. The FCC's
electronic filing systems will be shut down for maintenance
purposes. This shut down will last through 1:00 PM on April 7.
9:30 AM. The U.S. Court of Appeals (DCCir)
will hear oral argument in Global Naps Inc v. FCC, No.
01-1192. Judges Edwards, Roger and Tatel will preside.
Location: 333 Constitution Ave. NW.
11:00 AM. There will be a press conference on government
waste. The Computer &
Communications Industry Association's P/CEO Ed Black, will
discuss the Postal Service's ongoing e-commerce activities and
Transformation Plan. The other participants will be Leslie
Paige (CAGW), Rick Merritt (PostalWatch), Pete Sepp (National
Taxpayers Union), Rob Fike (Americans for Tax Reform), Ed
Hudgins (Objectivist Center), and Jason Thomas (Citizens for a
Sound Economy). Location: Lisagor Room, National Press Club, 529 14th
Extended deadline to submit comments to the Copyright Office in
response to its Notice of Proposed Rulemaking on "the
requirements for giving copyright owners reasonable notice of
the use of their works for sound recordings under statutory
license and for how records of such use shall be kept and made
available to copyright owners." See, original notice
in Federal Register, and extension notice
in Federal Register.
|Monday, April 8
|The Senate will return from its Spring District Work Period.
It is scheduled to meet at 3:00 PM. The House will not be in
9:30 AM. The U.S.
Court of Appeals (DCCir) will hear oral argument in Morris
Communications v. FCC, No. 01-1123. Judges Edwards, Tatel
and Silberman will preside. Location: 333 Constitution Ave.
|Tuesday, April 9
|The House will return from its Spring District Work Period.
It will meet at 2:00 PM for legislative business to consider a
number of measures under suspension of the rules.
8:30 AM. The Global Information
Infrastructure Committee (GIIC) will hold a meeting
regarding Internet use in China. For more information, contact
Robert Rogers at rrogers
@giic.org or 202 261-6572. Location: Winner's Room, National Press Club, 529 14th
St. NW, 13th Floor.
4:00 PM. Margo
Bagley (Emory University School of Law) will give a
lecture titled "Patently Unconstitutional: Geographic
Limitations on Prior Art in a Small World". For more
information, contact Robert Brauneis at rbraun @main.nlc.gwu.edu
or 202 994-6138. Location: George Washington University Law
School, 2000 H Street, NW.
|Wednesday, April 10
|The House will meet at 10:00 AM for legislative business. It
may take up HR
3925, The Digital Technology Corps Act of 2002.
10:00 AM. The House
Appropriations Committee's Subcommittee on Commerce,
Justice, State, and the Judiciary will hold a hearing on the
proposed budget for FY 2003 for the Federal Trade Commission (FTC).
Location: Room H-309, The Capitol.
10:00 AM - 12:00 NOON. The AEI Brookings Joint Center for
Regulatory Studies will host a panel discussion titled Microsoft:
Making the Punishment Fit the Crime. The participants will
be Robert Hahn
(AEI Brookings), Robert Litan (AEI Brookings), George
Priest (Yale Law School), Steve
Salop (Georgetown Law Center), and Richard
Schmalensee (MIT Sloan School of Management). See, online registration
page. Location: Wohlstetter Conference Center, AEI, 12th
Floor, 1150 17th Street, NW.
10:30 AM. The Senate
Judiciary Committee's Subcommittee on Antitrust,
Competition, and Business and Consumer Rights will hold a
hearing titled "Dominance on the Ground: Cable
Competition and the ATT Comcast Merger". Sen. Herb Kohl (D-WI) will
12:00 NOON. The Congressional
Internet Caucus Advisory Committee will host a luncheon
panel discussion on the use of e-learning to train
workers. The scheduled participants include Sen. Conrad Burns (R-MT), Rep. Johnny Isakson
(R-GA), Jerry Berman (Internet
Education Foundation), Rich Moran (Accenture), Daniel
Greg Priest (SmartForce),
and retired Brig. Gen. Frank Anderson (Defense Acquisition University).
RSVP to RSVP
@netcaucus.org or call Danielle at 202 637-4370. Location:
Reserve Officers Association, First and Constitution Ave., NW.
|Thursday, April 11
|The House will meet at 10:00 AM for legislative business.
9:30 AM. The House
Financial Services Committee will hold a meeting to mark
up several bills, including HR
3763, the Corporate and Auditing Accountability,
Responsibility, and Transparency Act of 2002, and HR
3764, a bill to authorize appropriations for the Securities and Exchange Commission
(SEC). Location: Room 2128, Rayburn House Office Building.
10:00 AM. The House
Appropriations Committee's Subcommittee on Commerce,
Justice, State, and the Judiciary will hold a hearing on the
proposed budget for FY 2003 for the Office of Homeland
Security. Location: Room 2359, Rayburn House Office Building.
10:00 AM. The House
Ways and Means Committee's Subcommittee on Trade will hold
a hearing on normal trade relations with Russia. Location:
Room 1100, Longworth House Office Building.
11:00 AM. The Cato Institute
will host a book forum on Free
Trade under Fire [Amazon], by Douglas Irwin,
Professor of Economics at Dartmouth College. The speakers will
be Irwin, Robert Litan (Brookings) and Steve Clemons (New
America Foundation). Lunch will follow. See, CATO notice.
Location: 1000 Massachusetts Avenue, NW.
12:00 NOON - 1:30 PM. The Business
Software Alliance will host its 5th Annual "Talking
Technology" forum luncheon. Mark Forman, Associate
Director for Information Technology and E-Government with the Office of Management and
Budget, will speak. RSVP to Jeri Clausing at 202 530-5127
or jeric @bsa.org.
Location: Reserve Officers Association, One Constitution
|People and Appointments
|4/4. Enrique Fiallo resigned as Ch/CEO of Enterasys. Vice Chairman
J.E. Riddle and COO Jerry Shanahan resigned as well. Enterasys
announced that William
O'Brien will be interim CEO and Director, and Yuda
Doron will be President. See, Enterasys
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