Tech Law Journal Daily E-Mail Alert
April 16, 2002, 9:00 AM ET, Alert No. 411.
TLJ Home Page | Calendar | Subscribe | Back Issues
Sen. Hollings and the FTC
4/15. Federal Trade Commission (FTC) Chairman Timothy Muris issued a statement regarding recent statements made by Sen. Ernest Hollings (D-SC). Muris stated that "A press report indicates that Senator Ernest F. Hollings of the Senate Appropriations Committee is considering suspending funding for the salaries of all of the Commissioners and the senior staff of the Federal Trade Commission. Although this step would not affect the salaries of the vast majority of employees at the FTC, it essentially would eliminate the Commission's ability to enforce the laws under its jurisdiction. ... I am surprised that Senator Hollings, being such a strong advocate of consumer protection, would consider a measure that would virtually eliminate the FTC's ability to protect consumers."
Sen. Hollings is Chairman of both the Senate Commerce Committee, which oversees that FTC, and the Senate Appropriations Committee's Subcommittee on Commerce, Justice, State and the Judiciary, which funds the FTC. He objects to the Memorandum of Agreement between the FTC and the Department of Justice's Antitrust Division which provides for the allocation of all antitrust matters in specific industries to one agency or the other, based largely on each agency's predominant expertise.
In particular, Sen. Hollings objects to the allocation of the media and entertainment industries, including cable services, satellite services, television and radio broadcasting, publishing, newspapers, magazines, movies, movie theaters and upstream video distribution, to the DOJ. The Sen. Hollings' Commerce Committee does not oversee the DOJ.
DOJ Files Amicus Curiae Memorandum in Microsoft Case
4/15. The Department of Justice's Antitrust Division filed a pleading in the Microsoft antitrust case titled "Memorandum Amicus Curiae of the United States Regarding Microsoft Corporation's Motion for Dismissal of the Non-Settling States' Demand for Equitable Relief".
Microsoft filed a motion to dismiss the non-settling States' demand for equitable relief on February 26, 2002. It argued in its memorandum in support that "the non-settling States are limited to seeking redress for state- specific injuries caused by Microsoft's conduct. They cannot displace the United States in its role of establishing national competition policy."
The DOJ pleading states that "Microsoft's motion raises a number of important questions concerning the limits of the non-settling States' legal standing as parens patriae. The movement of some States into the field of antitrust enforcement with respect to national or international markets, and their demands for relief that will affect competition and consumers outside of their borders, raise issues that have not been fully developed in the jurisprudence."
However, it adds that "the United States finds no definitive case law that would require granting the relief Microsoft seeks as a matter of law. Rather ... we believe that the law requires the Court to take cognizance of many of the issues Microsoft raises in the exercise of the Court's equitable discretion."
Trade Promotion Authority News
4/15. President Bush gave a speech in Cedar Rapids, Iowa, on behalf of Rep. Greg Ganske (R-IA), who is running for the Senate. President Bush stated that "the President needs what's called trade promotion authority. I need the ability to negotiate trade agreements all around the world. There are some in Washington, D.C. who want to build walls and protection around America. But a confident nation is one that tears those walls down."
Donald Evans, the Secretary of Commerce, and several Republican Senators are scheduled to hold a press conference in the Capitol Building on Tuesday morning, April 16, to pressure Senate Majority Leader Tom Daschle to schedule a vote on trade promotion authority legislation.
Rep. Boehlert Addresses Cyber Security Funding
4/15. Rep. Sherwood Boehlert (R-NY), Chairman of the House Science Committee, gave a speech at the Rochester Institute of Technology, in Rochester, New York. He addressed, among other things, federal funding for cyber security research and education.
"Congress will also have to see that the research needed to wage the war on terrorism -- and indeed all research, which in some ways is the same thing -- receives adequate funding," said Rep. Boehlert. "I've made a particular point of focusing on the research needed to improve cyber security -- which can be easy to overlook because, so far, the nation has been spared a spectacular attack on our computer and computer networks. But we are vulnerable to such an attack -- actually increasingly vulnerable as more and more of the systems on which we depend on for basic necessities -- water, electricity, fuel -- rely on computer networks."
He continued that "despite our dependence on these systems, neither the federal government nor the private sector has devoted much money or attention to cyber security research. The result is that cyber security is a small field, largely lacking in fresh ideas and fresh recruits."
Rep. Boehlert then discussed HR 3394, a bill sponsored by Rep. Boehlert and others titled the "Cyber Security Research and Development Act". The House passed this bill on February 7, 2002 by a vote of 400-12.
Rep. Boehlert stated that this bill would "pump almost $900 million into this field over the next five years. Under the bill, the National Science Foundation and the National Institute of Standards and Technology would create new cyber security programs to fund university industry research centers; undergraduate and masters curricula; doctoral and post doctoral fellowships; and grants for senior researchers in related fields. All of this should help foster new ideas and attract a cadre of researchers to the field."
DOJ Recommends Approval of Verizon NJ Long Distance Application
4/15. The Department of Justice's Antitrust Division submitted its evaluation [PDF] to the Federal Communications Commission (FCC) recommending approval of Verizon's Section 271 application to provide in region interLATA services in the state of New Jersey.
However, the evaluation also states that "several questions remain for the Commission to resolve. Although Verizon's reduction of hot cut NRCs appears to respond to the concern expressed in the Department’s Evaluation of its first New Jersey application, it is unclear whether this reduction will remain in effect for a sufficient period of time. Moreover, issues have been raised regarding nondiscriminatory access to Verizon's OSS in New Jersey. The Department therefore recommends that the Commission approve Verizon's second application for Section 271 authority in New Jersey subject to the Commission’s satisfying itself as to the pricing and OSS issues discussed above." (Footnote omitted.)
Charles James, Assistant Attorney General in charge of the Antitrust Division, had this to say: "Verizon appears to have generally succeeded in opening its local markets in New Jersey to competition ... Competitors have made progress in penetrating the business market in New Jersey, and the Department believes there are no material obstacles to residential competition in the state. Questions however, remain about parts of Verizon's OSS that may merit continuing attention by the FCC." See, DOJ release.
The evaluation was prepared by Nancy Goodman, Chief of the Telecommunications and Media Enforcement Section. This is WC Docket No. 02-67. 
FCC Fines SBC for Refusal to Provide Sworn Statement Re DSL Technology
4/15. The Federal Communications Commission (FCC) issued a Forefeiture Order in which it found that SBC Communications violated an FCC Enforcement Bureau (EB) order requiring SBC to provide sworn verification of the truth and accuracy of answers to a letter of inquiry (LOI) that the EB issued. The Order fines SBC $100,000.
The Order states that the EB sent "SBC an LOI directing SBC to provide answers to several questions regarding possible discrimination by SBC in its provisioning and maintenance of digital subscriber line (``DSL´´) technology and possible misrepresentations by SBC to the Bureau. The Bureau further directed SBC to verify the veracity of its answers by providing a sworn statement attesting to the truth and accuracy of the responses."
The Order continues that SBC provided answers, but without the requisite sworn statement. Further, SBC "disclosed to Bureau staff that it had intentionally refused to provide the sworn statement and that it did not intend to comply with that aspect of the Bureau's order when requested".
The order was adopted by the FCC by a 4-0 vote. It was released on April 15. It is numbered FCC 02-112. See also, FCC release.
Supreme Court Grants Certiorari in Trademark Case
4/15. The Supreme Court of the U.S. granted a petition for writ of certiorari in Moseley v. Victoria's Secret, a trademark case. At issue is whether the plaintiff in a lawsuit for violation of the Federal Trademark Dilution Act (FTDA) must show actual economic loss. See, Order List [PDF] at page 2.
Victoria's Secret filed a complaint in U.S. District Court (WDKent) against Victor Moseley alleging trademark infringement and violation of the FTDA, 15 U.S.C. § 1125(c), in connection with his use of the name "Victor's Little Secret" for a lingerie and adult toy business. The District Court granted summary judgment to Moseley on the federal trademark infringement claims, finding that Victoria's Secret had not provided sufficient evidence to establish a likelihood of confusion between the two marks. The District Court also found that the Victor's Little Secret mark both blurred and tarnished the Victoria's Secret mark under the FTDA and enjoined Moseley from making further use of the Victor's Little Secret mark.
Moseley appealed the District Court's FTDA ruling. The U.S. Court of Appeals (6thCir) issued its opinion on July 30, 2001, affirming the District Court. It held that economic harm may be inferred.
The Supreme Court's review will resolve the differences between various circuits on this issue. See, for example, Nabisco v. PF Brands, 191 F.3d 208 (2d Cir. 1999) and Ringling Bros. Barnum & Bailey v. Utah, 170 F.3d 449 (4th Cir. 1999).
Supreme Court Denies Certiorari in CALLS Case
4/15. The Supreme Court of the U.S. denied a petition for writ of certiorari in NASUCA v. FCC. This case pertains to the Federal Communications Commission's (FCC's) Coalition for Affordable Local and Long Distance Service (CALLS) Order. See, Order List [PDF] at page 2.
The CALLS Order provides for an interstate access charge and universal service regime. It was adopted by the FCC on May 31, 2000. See, text version (without footnotes) and MS Word version. On September 10, 2001, the the U.S. Court of Appeals (5thCir) issued its opinion in Texas Office of Public Utility Counsel v. FCC affirming in part, and reversing in part, the FCC CALLS Order.
NASUCA is the National Association of State Utility Consumer Advocates, an organization of 42 offices of utility ratepayer advocates in 40 states and the District of Columbia.
Intel and Intergraph Settle One Lawsuit
4/15. Intel and Intergraph announced that they have settled a lawsuit pending in the U.S. District Court (NDAlabama). Intel stated in a release that "Under terms of the settlement, the companies have signed a cross license agreement; Intergraph will transfer ownership of certain unrelated patents to Intel and Intel will pay Intergraph $300 million." Another lawsuit pending in the U.S. District Court (EDTex) will proceed. See also, Intergraph release.
People and Appointments
4/15. Former Justice of the Supreme Court of the U.S. Byron White died.
4/15. The Senate approved the nomination of Terrence O'Brien to be a judge of the U.S. Court of Appeals (10thCir).
More News
4/15. The General Accounting Office (GAO) released a letter [PDF] to Rep. Dick Armey (R-TX) regarding federal funding for selected surveillance technologies.
4/15. The Copyright Office (CO) published a notice in the Federal Register stating that it will hold "a public roundtable discussion concerning issues raised in the course of an ongoing rulemaking proceeding to adopt requirements for giving copyright owners reasonable notice of the use of their works for sound recordings under the section 114 and 112 statutory licenses and for how records of such use shall be kept and made available to copyright owners." Requests to attend or participate must be submitted by close of business on Monday, May 6, 2002. See, Federal Register, April 15, 2002, Vol. 67, No. 72, at Pages 18148 - 18149.
4/15. The Supreme Court's Order List [PDF] of April 15, at page 22, contains the following item: "D-2295 IN THE MATTER OF DISCIPLINE OF MALCOLM BRUCE WITTENBERG Malcolm Bruce Wittenberg, of Oakland, California, is suspended from the practice of law in this Court, and a rule will issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court." On September 4, 2001, Wittenberg plead guilty in U.S. District Court (NDCal) to one count of insider trading, in violation of 15 U.S.C. §§ 78j and 78ff. The Plea Agreement [PDF] states that Wittenberg learned of a pending merger of Sun Microsystems and Forte Software in the course of his representation of Forte, and then traded in Forte stock. The plea agreement also states that Wittenberg at all relevant times was a partner in the law firm of Crosby Heafey Roach & May.
4/15. The Federal Election Commission (FEC) released a list of witnesses for its April 17 hearing on proposed voluntary standards for computerized voting systems.
4/15. The Bureau of Export Administration (BXA) published a notice in the Federal Register that its Information Systems Technical Advisory Committee (ISTAC) will hold a two day meeting on April 24 and 25. The ISTAC advises the Office of the Assistant Secretary for Export Administration on technical questions that affect the level of export controls applicable to information systems equipment and technology. The meeting will be open to the public in part, and closed to the public in part. The open agenda includes a presentation on web based remote hardware management, a presentation on microelectro- mechanical (MEMS) technology and applications, and a presentation on battery and fuel cell technology. See, Federal Register, April 15, 2002, Vol. 67, No. 72, at Page 18165.
GWU To Host Symposium on Patents and Standard Setting
The George Washington University School of Law will host a symposium on patent and standards setting on Friday, April 19. The agenda includes the following.
9:00 AM. Introductory speakers: Michael Young (GWULS Dean), Daniel Cooperman (Oracle), Amy Marasco (American National Standards Institute).
9:30 AM - 10:30 AM. Academic presentations: Daniel Gifford (University of Minnesota Law School), and Mark Patterson (Fordham University School of Law).
10:45 AM - 11:15 AM. Academic presentations continued: Mark Lemley (Boalt Hall School of Law).
11:15 AM - 12:00 NOON. Commentary on academic presentations: Stephen Calkins (Wayne State University), Mark Janis (University of Iowa College of Law), and Jay Kesan (University of Illinois College of Law).
1:30 - 2:30 PM. Government presentations: William Kovacic (General Counsel of the Federal Trade Commission), and Hewitt Pate (Deputy Assistant Attorney General, Department of Justice Antitrust Division).
2:30 - 3:30 PM. Business perspectives: Richard Holleman, Scott Peterson (Hewlett Packard), Daniel Prywes (Pepper Hamilton), Richard Taffet (Thelen Reid & Priest), and Earle Thompson (Texas Instruments).
3:45 - 4:15 PM. Business perspectives continued.
4:15 - 5:15 PM. Legal issues raised by standard setting: Mary Azcuenaga (Heller Ehrman), David Balto (White & Case), and Robert Skitol (Drinker Biddle & Reath).
Registration is required.
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.
Tuesday, April 16
The House will meet at 12:30 PM for morning hour and 2:00 PM for legislative business. No votes are expected before 6:30 PM. The House will consider a number of measures under suspension of the rules.
9:30 AM. Commerce Secretary Don Evans, Sen. Trent Lott (R-MS), Sen. Charles Grassley (R-IA), Sen. Orrin Hatch (R-UT) and others will hold a press conference to press Senate Democrats on setting a date to vote on trade promotion authority legislation. See, DOC release. Location: Room S-207 (Mansfield Room), Capitol Building.
9:30 AM. The Senate Commerce Committee will hold a hearing to examine the Technology Administration and the NIST, including the Advanced Technology Program. Location: Room 253, Russell Building.
10:00 AM. The Senate Health, Education, Labor, and Pensions Committee will hold a hearing to examine medical privacy issues. Location: Room 216, Hart Building.
12:00 NOON. FTC Commissioner Sheila Anthony will speak at the 45th Annual Food & Drug Law Institute's Educational Conference. Location: Renaissance Hotel.
6:00 - 8:15 PM. The FCBA will host a CLE seminar titled U.S. Spectrum Policy: Convergence or Co-Existence? This is Part II of a two part series.
6:30 - 8:30 PM. The IP Law Forum of the Women's Bar Association of DC and the IP Section of the District of Columbia Bar will host a panel discussion and reception titled "What Judges Want: Effective Advocacy in Technology Cases". The speakers will be Judge Paul Michel of the U.S. Court of Appeals (FedCir), Judge Yvette Kane of the U.S. District Court (WDPenn), and Judge Marvin Garbis of the U.S. District Court (DMd). The price to attend is $40. For more information, contact the WBA at 202 639-8880. Location: Auditorium, The Hirshhorn Museum, 7th Street and Independence Ave., SW.
Wednesday, April 17
The House will meet at 10:00 AM for legislative business.
9:00 AM. Oral argument on cross motions for summary judgment in Swedenburg v. Kelly, a constitutional challenge by a Virginia winery and wine consumers to New York State's liquor control law, which prohibits out of state wineries from selling directly to New York residents, including via the Internet. Location: U.S. District Court (SDNY), New York, NY.
9:30 AM - 12:00 NOON. The U.S. International Telecommunication Advisory Committee (ITAC), which advises the Department of State on policy and technical issues with respect to the International Telecommunication Union (ITU), will meet to prepare for the June 2002 meeting of the Telecommunication Sector Advisory Group (TSAG). Location: Alliance for Telecommunications Industry Solutions (ATIS), 1200 G Street NW, Suite 350.
10:00 AM. The FEC will hold a hearing regarding proposed voluntary standards for computerized voting systems. See, witness list, and notice in Federal Register.
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 SEC (SEC). Location: Room H-309, The Capitol.
12:15 PM. The FCBA's Mass Media Committee will host a brown bag lunch. The speaker will be Jane Mago, FCC General Counsel. RSVP to: kdole Location: 1st Floor, NPR, 635 Mass Ave., NW.
12:15 PM. The FCBA's Online Communications Committee will host a brown bag lunch. The speaker will be Scott Marcus, Senior Advisor for Internet Technology at the Federal Communications Commission's (FCC) Office of Plans and Policy. The title will be "Broadband, When? -- A View from OPP". RSVP to Scott Harris at sharris Location: Wiley Rein & Fielding, 1776 K St., NW, 4th Floor Conference Room.
2:00 PM. 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 FCC. Location: Room H-309, The Capitol.
2:00 - 3:00 PM. The FCBA's International Practice Committee will host an event titled "Today's International Issues". The speaker will be FCC Commissioner Michael Copps. RSVP to Scott Harris. Location: FCC, 445 12th Street, SW.
Thursday, April 18
The House will meet at 10:00 AM for legislative business.
8:30 AM. Rep. Joe Knollenberg (R-MI) will speak at a breakfast hosted by the Greater Washington Board of Trade's Federal PAC and CapNet. RSVP to either JaimeHjort or 202 857-5909. Location: Greater Washington Board of Trade Board Building, 1129 20th Street, NW, Suite 200.
8:30 AM - 4:00 PM. The Progress and Freedom Foundation will host an event titled "Digital Online Content: Creating a Market that Works". James Rogan, Undersecretary of Commerce for Intellectual Property, will speak. Location: J.W. Marriott Hotel, 1331 Pennsylvania Ave, NW.
9:30 AM. The FCC will hold a meeting. See, agenda. Location: FCC, 445 12th Street, SW, Room TW-C05 (Commission Meeting Room).
9:30 AM. The Senate Commerce Committee will hold an executive session. Location: Room 253, Russell Building.
9:30 AM - 12:00 NOON. The American Enterprise Institute (AEI) will host a pair of panel discussions titled "Gene Related Inventions: Evolving Patent Standards and Their Consequences". The first panel will address "Science, Economics, and Patent Law". The panelists will be Lee Bendekgey (Incyte Genomics), Iain Cockburn (Boston University), and Rochelle Seide (Baker Botts). The second panel will be titled "Perspectives from the Patents and Trademark Office and Capitol Hill". The panelists will be John Doll (USPTO), Chris Katopis (House Subcommittee on Courts, the Internet, and Intellectual Property), Maureen Mellody (office of Rep. Howard Berman (D-CA)), and Gerald Mossinghoff (Oblon Spivak). See, agenda and online registration page. Location: 12th Floor, AEI, 1150 17th Street, NW.
10:00 AM. The Senate Judiciary Committee has scheduled a business meeting. The agenda includes a vote on several pending judicial nominations, including that of Jeffrey Howard to be a Judge of the U.S. Court of Appeals (1stCir). The agenda also includes consideration of S 2031, the Intellectual Property Protection Restoration Act of 2002, a bill to prevent states from recovering damages for infringement of state owned intellectual property, unless they have first waived their 11th Amendment sovereign immunity from suits against them for their infringement of the intellectual property of others. Location: Room 226, Dirksen Building.
Day one of a two day ALI-ABA course for inside and outside counsel titled "Trademarks, Copyrights, and Unfair Competition for the General Practitioner and the Corporate Counsel". The price to attend is $685. See, online brochure. Location: Loews L'Enfant Plaza.
Day one of a two day conference titled "IT Law and the Response to Terror: New Laws, Rules and Strategies". The event is hosted by the Computer Law Association and the FCBA. See, online brochure [PDF]. Location: Monarch Hotel, 2401 M Street NW.
Friday, April 19
The House will not be in session.
9:00 AM - 5:15 PM. The George Washington University Law School (GWULS) will host an event titled Symposium on Patents and Standard Setting. See, agenda in GWULS web site. Registration is required. For more information, contact Prof. Martin Adelman at madelman Location: GWULS, Moot Court Room, 2000 H Street, NW.
12:00 NOON - 2:00 PM. The Progress and Freedom Foundation will host an event titled "Privacy Online: A Report on the Internet Practices and Policies of Commercial Websites". The speakers will include FTC Commissioner Orson Swindle, Paul Misener (Amazon), David Klaus (Privacy Leadership Initiative), and Peter Ford (Australian Attorney General's Department). See, PFF notice. Location: Room B369, Rayburn Building.
Day two of a two day ALI-ABA course for inside and outside counsel titled "Trademarks, Copyrights, and Unfair Competition for the General Practitioner and the Corporate Counsel". The price to attend is $685. See, online brochure. Location: Loews L'Enfant Plaza.
Day two of a two day conference titled "IT Law and the Response to Terror: New Laws, Rules and Strategies". The event is hosted by the Computer Law Association and the FCBA. See, online brochure [PDF]. Location: Monarch Hotel, 2401 M Street NW.
Deadline to submit reply comments to the FCC regarding its annual report to Congress regarding progress made in achieving the objectives of the ORBIT Act. The next FCC Orbit Act report is due to Congress on June 15, 2002. See, FCC notice [PDF].
Deadline to register to attend the "Copyright Conference" hosted by the USPTO, the purpose of which is to "discuss current domestic and international issues vital to the development of e-commerce with members of the business and intellectual property communities." See, USPTO notice. Registration is required.
Monday, April 22
Day one of a three day conference of the Electronics Industry Alliance. See, agenda [MS Word]. Location: Grand Hyatt Hotel.
12:00 NOON - 2:00 PM. Sen. John Breaux (D-LA) will speak at a luncheon at the spring convention of the Electronics Industry Alliance. Location: Grand Hyatt Hotel.
Extended deadline to file reply comments with the FCC in response to its notice of proposed rulemaking (NPRM) regarding the appropriate regulatory requirements for incumbent local exchange carriers' (ILECs') provision of broadband telecommunications services. The FCC adopted this NPRM at its December 12 meeting. This is CC Docket No. 01-337. See, notice in the Federal Register. See also, Order [PDF] extending deadline from April 1 to April 22.