Tech Law Journal Daily E-Mail Alert
April 24, 2002, 9:00 AM ET, Alert No. 417.
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FCC Acts on Northpoint Application
4/23. The Federal Communications Commission (FCC) announced that it adopted a Memorandum Opinion and Order and Second Report and Order regarding the spectrum sharing technology developed by Northpoint Technologies. This technology is intended to provide a wireless alternative to cable, as well as high speed wireless Internet access.
The FCC did not release the order. Rather, it released only a press release, and statements by the four FCC Commissioners. See, joint statement by Michael Powell and Kathleen Abernathy, statement by Michael Copps, and statement by Kevin Martin. This is ET Docket No. 98-206, RM 9147, and RM 9245.
The FCC states that it adopted Multichannel Video Distribution and Data Service (MVDDS) service and technical rules that permit MVDDS operators to share the 12 GHz band with Direct Broadcast Satellite (DBS) and non- geostationary satellite orbit (NGSO) fixed-satellite service (FSS) operators. That is, the order provides for the sharing of spectrum by satellite and terrestrial users.
The FCC will not allocate this shared spectrum to Northpoint. Rather, Northpoint would have to acquire licenses, by geographic areas, in competitive auctions. However, the FCC states that dominant cable operators will be prevented from acquiring an attributable interest in an MVDDS license for a service area where significant overlap is present.
Northpoint had sought free spectrum, based on its many years of effort in developing the technology, and pursuing FCC action enabling its use. Powell and Abernathy wrote that "Northpoint arrived at the Commission many years ago with a proposal for a new and innovative way to share the DBS spectrum. Today, thanks in large part to its fine work and diligence, that service will go forward. ... There is little question that had it not been for Northpoint, the MVDDS service would not be ready to move forward today. Northpoint has put significant time and resources into developing its service model as well as its Commission and congressional advocacy over a long period of time. We applaud these efforts." But now, Northpoint stands in the same position as its competitors.
TLJ spoke with Sophia Collier, President of Northpoint. She stated that Northpoint has spent over $10 Million on obtaining patents, working with the FCC, and lobbying the Congress. She also stated that Northpoint may file a petition for review of the FCC's order with the U.S. Court of Appeals (DCCir) based on disparate treatment of satellite service providers (who have obtained spectrum outside of auction) and Northpoint (which will have to bid at auction). Northpoint is presented by the law firm of Kellogg Huber. See also, Northpoint release [PDF].
Northpoint has described its technology as follows: "Northpoint is a patented, digital, wireless, cell based, terrestrial transmission technology that reuses radio frequency spectrum previously reserved for satellite systems. Northpoint can reuse this spectrum by keeping the terrestrial signal below the level to cause interference to the satellite signal, but above the level required to provide reliable terrestrial service. This is accomplished through several means, one of which is directional transmission. The Northpoint system consists of directional broadcast antennas located on towers, poles, buildings or mountains. The transmissions are oriented in a limited azimuth range, based upon the look angles to the satellite systems with which the Northpoint system will share frequencies, allowing harmonious simultaneous co-channel transmissions between satellite and terrestrial services." See, Northpoint paper.
Commissioner Copps observed that "MVDDS has the potential to speed the deployment of broadband telecommunications services throughout the country, and especially to rural America. The MVDDS service includes the ability to offer broadband services, such as Internet access, via terrestrial wireless facilities."
Northpoint seeks to provide multichannel video programming services as a competitive alternative to cable. It also plans to offer high speed wireless Internet access via its small dish antennas. Collier stated that it plans to offer asymmetric transfer rates of 512 kbps upstream and 2 mbps downstream.
House Subcommittee Holds Hearing on Intellectual Property
4/23. The House Appropriations Committee's Subcommittee on Commerce, Justice, State, and the Judiciary held a hearing on intellectual property rights.
U.S. Patent and Trademark Office (USPTO) Director James Rogan focused on international issues in his prepared testimony. He stated that "in addition to the examination and issuance of patents and trademarks, USPTO works to promote protection of the intellectual property of American innovators on both the domestic and international levels."
Rogan stated that "a significant part of our international efforts at the USPTO are devoted to strengthening IP enforcement abroad and combating IP piracy. With the growing importance of intellectual property assets, the need for enforcement of these rights abroad has increased substantially."
He singled out China. He said that "one of the areas of greatest concern with respect to IP piracy is Asia, particularly China. The risks of increased piracy mount on a daily basis with rapidly increasing Internet penetration, Napster like file exchange systems, and involvement of organized crime. Yet, despite WTO commitments, there is little evidence of any prosecutions of Chinese citizens for criminal copyright theft."
Rogan also stated that "Our goal in the international arena is to move toward greater consistency in intellectual property protection around the world." For example, "In the patents area, we are striving for uniform treatment of patent applications and patent grants worldwide, which will reduce costs for American patent owners in obtaining and preserving their IP rights abroad."
Assistant Secretary of State Anthony Wayne stated in his prepared testimony that "we observe a significant, if not readily quantifiable, increased appreciation of the benefits inherent in effective protection of intellectual property rights. More and more, our trading partners are beginning to understand that their future growth and development depends in large part on their becoming active players in the global knowledge based economy. They also are coming to appreciate that strong intellectual property protection is necessary to create an attractive investment climate. In short, economic self interest is becoming a very important factor in enhancing intellectual property protection overseas." However, he added that the Special 301 review remains an important tool for fighting piracy abroad.
People and Appointments
4/23. The Senate voted 99-0 to confirm Jeffrey Howard to be a judge of the U.S. Court of Appeals (1stCir).
4/23. Terry Calvani was named a Commissioner of the Irish Competition Authority. He was a Commissioner on the U.S. Federal Trade Commission (FTC) from 1983 through 1990; he was its Acting Chairman from 1985 through 1986. He is currently a partner in the antitrust practice group of the law firm of Pillsbury Madison & Sutro. See, FTC release.
DOJ and Computer Associates Settle Gun Jumping Suit
4/23. The Department of Justice (DOJ) and Computer Associates (CA) and Platinum Technology International (PTI) announced that they have reached a proposed settlement of a civil suit filed by the DOJ against CA.
On September 28, 2001, the DOJ filed a complaint in U.S. District Court (DC) against CA and PTI alleging that after CA and PTI announced their proposed merger they violated the pre-merger waiting period requirements and agreed to restrict PTI's ability to offer discounts to customers during the merger waiting period, in violation of the Hart Scott Rodino (HSR) Act and Section 1 of the Sherman Act. That is, the complaint alleged that CA "jumped the gun" and exercised operation control of an acquisition candidate during the HSR waiting period.
Under the terms of the proposed settlement, CA will pay a civil penalty of $638,000. The settlement agreement, filed with the U.S. District Court, can not become final until after a 60 day public comment period.
Charles James, Assistant Attorney General for the Antitrust Division, stated in a release that "Merging parties must comply with their antitrust obligations and continue to operate independently pending consummation of their transaction ... The Department views gun jumping as a serious matter and will proceed against parties who fail to respect the law with regard to preconsummation conduct." See also, CA release.
6th Circuit Applies Antitrust Exemption to Municipal Phone Contracts
4/23. The U.S. Court of Appeals (6thCir) issued its opinion in Michigan Paytel v. City of Detroit, an antitrust action against Detroit and Ameritech regarding the bidding process for the provision of pay telephone service in the city jail.
The City of Detroit Police Department issued a Request for Proposal (RFP) and began to solicit bids for an "in-cell telephone contract" at its "lock-up facilities". Michigan Paytel submitted a bid. The City awarded the contract to Ameritech (now SBC) without following its RFP.
Michigan Paytel filed a complaint in U.S. District Court (EDMich) against Detroit, Ameritech, and others alleging violation of federal and state antitrust law, as well as a variety of civil rights, tort, contract, conspiracy claims. The District Court dismissed the antitrust and other claims, and granted summary judgment to Detroit.
The Appeals Court affirmed. The Court held that "the City is immune from antitrust liability because anticompetitive effects are the logical and foreseeable result of the City's broad authority under state law and the Michigan Constitution to bid out public contracts for the maintenance of City prisons." Moreover, the state action exemption also entitles the private defendants to protection from antitrust liability in this case.
Prisoners get their own phones?
FCC Releases Phone Penetration Report
4/23. The Federal Communications Commission (FCC) released its annual report [71 pages PDF] titled "Telephone Penetration by Income by State". See also, FCC release [2 pages in PDF]. The report found that in March 2001, 12.4% of low income households nationwide did not have a phone. And, in the state of Michigan, 16% of low income households lacked their own phones.
SEC Official Addresses Securities Regulation and the Internet
4/19. Paul Roye, Director of the Securities and Exchange Commission's (SEC) Division of Investment Management gave a speech at the Suffolk University School of Law in Boston, Massachusetts. He discussed, among other topics, securities regulation and the Internet.
He stated that "The Internet has no borders and the growing importance of e-commerce in the financial services area, has made it necessary to reconsider traditional regulatory approaches. As a report of the Internet Task Force to the Technical Committee of the International Organization of Securities Commissions ("IOSCO") noted: ``Electronic communications and interactivity may not fit neatly within the parameters of statutes, regulations and directives originally intended for a telephone and paper based environment, thus creating unnecessary regulatory burdens or unintended regulatory gaps. Moreover, the very qualities that make the Internet a valuable tool for investors and the securities industry may render it a convenient tool to perpetuate securities fraud and other violations. The Internet also provides for instantaneous cross border communication and interactivity, which challenge traditional notions of jurisdiction and territoriality."
He continued that "It is clear that increasing Internet use presents new challenges for securities regulators and self regulatory organizations. Recognizing this, IOSCO created an Internet Task Force to examine and provide guidance on issues relating to the impact of the Internet on securities regulations, providing a report that identified Internet issues that should be addressed by each jurisdiction and providing guidance on how to approach these issues. Efforts like this have been successful in helping shape logical and consistent approaches to issues raised by the Internet."
More News
4/23. The U.S. Court of Appeals (FedCir) issued its opinion in Abbott Laboratories v. Dey, a patent infringement case involving the doctrine of equivalents. The Tokyo Tanabe Company, which is now known as Mitsubishi Tokyo Pharmaceuticals, and its exclusive U.S. licensee, Abbott Laboratories, filed a complaint in U.S. District Court (NDIll) against Dey alleging infringement of  for infringement of the U.S. Patent No. 4,397,839 and U.S. Patent No. 4,338,301. These patents relate to a lung surfactant composition for treating respiratory distress syndrome in premature babies. The District Court granted Dey summary judgment of non infringement of the 839 patent. The Appeals Court reversed on the grounds that the District Court improperly precluded plaintiffs from relying on the doctrine of equivalents to prove infringement. Vacated and remanded.
4/23. April 24 marks the reopening of ".us" domain. Nancy Victory, Director of the National Telecommunications and Information Administration (NTIA), which administers the domain, stated in a release that "By expanding access to serve more people, the reopening of the '.us' Internet domain set for April 24th will create new opportunities for growth in the U.S. economy and throughout our society."
4/23. The Federal Communications Commission (FCC) announced the extension of the deadline to submit comments in its proceeding titled "In the Matter of Rules and Policies Concerning Multiple Ownership of Radio Broadcast Stations in Local Markets Definition of Radio Markets". This is MM Docket Nos. 01-317 and 00-244. The old deadline was April 24. The new deadline is May 8. See, FCC release [PDF].
4/23. President Bush announced that the U.S. "will work to enact a free trade agreement with Morocco". See, transcript of press conference with King Mohammed VI of Morocco. Bush also used the occasion to advocate passage of the trade promotion authority bill, HR 3005, by the Senate. He stated: "To this end, it's very important that the United States Senate act on free trade, to give me the trade promotion authority, as well as to work on -- and the extension of the Andean Trade Preference Act. Trade is an important part of good foreign policy, it's an important part of making sure Americans can find jobs. And the Senate needs to act, and it needs to act now."
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Wednesday, April 24
The House will meet at 10:00 AM for legislative business.
Day three of a three day conference of the Electronics Industry Alliance. See, agenda [Word]. Location: Grand Hyatt Hotel.
9:00 AM - 3:30 PM. The Consumer Electronics Association (CEA) will host an event titled Digital Television (DTV) Summit: Moving to Mass Markets. Rep. Billy Tauzin (R-LA) will give the opening keynote address. A 1:45 PM panel will include Michael Petricone (CEA), Rick Chessen (FCC), Andrew Levin (Minority Counsel, House Commerce Committee), and Jessica Wallace (Counsel, House Commerce Committee). See, agenda. Location: Washington Convention Center.
9:00 AM. Day one of a two day meeting of the Bureau of Export Administration's (BXA) Information Systems Technical Advisory Committee (ISTAC). 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, notice in Federal Register. Location: Hoover Building, Room 3884, 14th Street between Pennsylvania Ave. and Constitution Ave., NW.
10:00 AM. The House Judiciary Committee will mark up several tech bills, including HR 3482, the Cyber Security Enhancement Act of 2001, HR 3215, the Combatting Illegal Gambling Reform and Modernization Act, and HR 1877, the Child Sez Crimes Wiretapping Act of 2001. Location: Room 2141, Rayburn Building.
10:45 AM. FTC Commissioner Mozelle Thompson will participate in a panel discussion before the American Bar Association, Antitrust Section, titled "The Future of Leadership In a Competitive Environment" at the ABA 2002 Annual Antitrust Spring Meeting. Location: J.W. Marriott Hotel, 1331 Pennsylvania Ave., NW.
TIME CHANGE. 12:15 PM. Sen. George Allen (R-VA), Commerce Secretary Paul O'Neill, and high tech business representatives will hold a press conference on the importance of trade promotion authority (TPA) to the high tech community. Location: Room S-211, LBJ Room, U.S. Capitol.
12:00 NOON - 1:30 PM. The Cellular Telecommunications and Internet Association will host an event titled Wireless Issues Day Luncheon. This event is open to members of the media. For more information, contact Travis Larson at tlarson or Kim Kuo at kkuo Location: Room 325, Russell Building.
1:00 - 4:30 PM. The CFTC's Technology Advisory Committee will hold a public meeting on technology related issues in the financial services and commodity markets, including cyber security. See, notice in Federal Register. Location: Room 1000, CFTC, Three Lafayette Centre, 1155 21st Street, NW.
2:30 PM. The Senate Commerce Committee's Subcommittee on Science, Technology, and Space will hold a hearing on S 2037, a bill providing for the establishment of a national emergency technology guard, and S 2182, the Cyber Security Research and Development Act, a bill to authorize funding for computer and network security research and development and research fellowship programs. Both bills are sponsored by Sen. Ron Wyden (D-OR). Rep. Sherwood Boehlert (R-NY) will testify. He is the sponsor of HR 3394, the House companion bill to S 2182. It passed the House on February 7. Location: Room 253, Russell Building.
Thursday, April 25
The House will meet at 10:00 AM for legislative business.
9:00 AM - 5:30 PM. Day one of a two day 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. Registration closed on April 19. Location: The Academy for Educational Development Conference Center, 1825 Connecticut Avenue, NW, 8th Floor.
9:00 AM. Day two of a two day meeting of the Bureau of Export Administration's Information Systems Technical Advisory Committee (ISTAC). See, notice in Federal Register. Location: Herbert Hoover Building, Room 3884, 14th Street between Pennsylvania Ave. and Constitution Ave., NW.
9:30 AM. The Senate Commerce Committee will hold a hearing on online privacy legislation. Location: Room 253, Russell Building.
10:00 AM. The Senate Judiciary Committee will hold an executive business meeting. Location: Room 226, Dirksen Building.
10:00 - 11:00 AM. The High Tech Coalition on Trade Promotion Authority will hold a press conference to urge passage of TPA. Location: Room SC-4, Capitol Building.
12:00 NOON. Sen. Russ Feingold (D-WI), Rep. Patsy Mink (D-HI), and members of the Free Expression Network will hold a press conference to mark the six month anniversary of the passage of the USA PATRIOT Act and to address threats to free expression that have arisen since the September 11 terrorist attacks. Location: Senate Swamp (across from the Senate steps on the East Front of the Capitol). In the event of rain, the location will be Room 216, Hart Building.
12:15 PM. The FCBA's Young Lawyers Committee will host a brown bag lunch. The topic will be "The Year of the 271". The speakers will be Dorothy Attwood (Chief of Wireline Competition Bureau), Michelle Carey, (Chief of the Competition Policy Division), Deena Shetler (Deputy Chief of the Pricing Policy Division), and Renee Crittendon (Senior Attorney Advisor in the Competition Policy Division). RSVP to Pam Slipakoff. Location: Room 8-C245, FCC, 445 12th Street, SW.
12:30 PM. The House Commerce Committee's Telecom and Internet Subcommittee will hold a hearing titled Ensuring Content Protection in the Digital Age. Location: Room 2123, Rayburn Building.
1:30 PM. FTC Commissioner Thomas Leary will participate in a panel discussion titled "Crises and Transitions: Is Competition Policy Responsive to Market Power Issues in Restructuring Energy Markets?" at the ABA 2002 Annual Antitrust Spring Meeting. Location: J.W. Marriott Hotel, 1331 Pennsylvania Ave., NW.
2:00 PM. The Senate Judiciary Committee will hold a hearing on several judicial nominees, including Julia Gibbons (to be a judge of the U.S. Court of Appeals for the Sixth Circuit), Leonard Davis (U.S.D.C., Eastern District of Texas), David Godbey (U.S.D.C., Northern District of Texas), Andrew Hanen (U.S.D.C., Southern District of Texas), Samuel Mays (U.S.D.C., Western District of Tennessee), and Thomas Rose (U.S.D.C., Southern District of Ohio). Location: Room 226, Dirksen Building.
3:30 PM. Mark Lemley (Professor, Boalt Hall, UC Berkeley) will give a lecture titled "Antitrust, Intellectual Property, and Standard Setting Organizations". For more information, contact Prof. Julie Cohen at jec@law. Location: Georgetown University Law Center, Faculty Lounge, 5th Floor, McDonough Hall, 600 New Jersey Ave., NW.
Deadline to submit Notices of Intent to Participate to the Copyright Office in its negotiation of 17 U.S.C. 118 noncommercial educational broadcasting compulsory license. See, notice in Federal Register.
Friday, April 26
The House will not be in session.
9:00 AM - 5:30 PM. Day two of a two day 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. Location: The Academy for Educational Development Conference Center, 1825 Connecticut Ave., NW, 8th Floor.
10:00 AM. The FCC's Technology Advisory Council will hold a meeting. See, FCC notice and notice in Federal Register. Location: Commission Meeting Room, FCC, 445 12th St., SW.
10:00 AM. FTC Chairman Timothy Muris will participate in a roundtable discussion at the ABA 2002 Annual Antitrust Spring Meeting. Location: J.W. Marriott Hotel, 1331 Pennsylvania Ave., NW.
12:00 NOON. The Cato Institute will host a briefing titled Financial Privacy and the War on Terrorism. The speakers will be David Burton (Prosperity Institute), Bradley Jansen (Free Congress Foundation), and Veronique de Rugy (Cato). Lunch will follow. See, agenda and online registration page. Location: Room B-369, Rayburn Building.
12:00 NOON - 2:00 PM. FCC Commissioner Kathleen Abernathy will address the American Woman in Radio & Television Awards Luncheon. For more information, contact Sallie Gitlitz at 202 337-4684. Location: Ballroom, National Press Club, 529 14th St. NW, 13th Floor.
3:00 - 5:00 PM. FCC Commissioner Kathleen Abernathy will address a Women's Bar Association Tea. Location: Mayflower Hotel.
Extended deadline to submit reply 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 29
The Supreme Court will go on recess until May 13.
10:00 - 11:30 AM. The FCC's Office of Engineering and Technology will hold a tutorial titled Security of Wireless Networks. David Wagner, Assistant Professor in the Computer Science Division at the University of California at Berkeley, will discuss security issues associated with 802.11 wireless networks. See, FCC release.
12:15 PM. The FCBA's Cable Practice Committee will host a luncheon. Rick Chessen, head of FCC's DTV Transition Task Force, will discuss Chairman Powell's proposal for accelerating the transition to digital television. The price to attend is $15. RSVP to wendy Location: Mintz Levin, 9th Floor, 701 Pennsylvania Avenue, NW.
Tuesday, April 30
The U.S. Chamber of Commerce will host an event titled Beyond Broadband: Policy and Business Strategies for Next Generation Applications and Services. Federal Communications Commission (FCC) Chairman Michael Powell will give the keynote luncheon address. The price to attend ranges from $275 to $500. For more information, contact Liza Ratana at 202 463-5500.
Deadline to submit reply comments to the FCC in response to its notice of proposed rulemaking regarding its unbundling analysis under  251 of the Communications Act and the identification of specific unbundling requirements for incumbent local exchange carriers. This is CC Docket No. 01-338. See, notice in the Federal Register.
Deadline to submit requests to the USPTO to speak at its May 16 public hearing on its proposed plan to eliminate the paper patent and trademark registration collections from its public search facilities, and to transition to electronic patent and trademark information collections. The USPTO is seeking public comment on issues related to this proposed plan. The USPTO is also seeking input on whether any governmental entity or non-profit organization is interested in acquiring the paper patent and trademark registration collections to be removed from the USPTO's public search facilities. See, notice in Federal Register.