Tech Law Journal Daily E-Mail Alert
April 30, 2002, 9:00 AM ET, Alert No. 421.
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FCC Receives Comments on AT&T Comcast Merger
4/29. April 29 was the deadline to file original comments with the Federal Communications Commission (FCC) in its AT&T Comcast merger review proceeding. This proceeding is titled "In the Matter of Applications for Consent to the Transfer of Control of Licenses, Comcast Corporation and AT&T Corp., Transferors, To AT&T Comcast Corporation, Transferee". This is MB Docket No. 02-70. Oppositions and responses are due by May 14. See, FCC notice.
The Progress and Freedom Foundation (PFF) submitted a comment [PDF] in which it stated that "in the context of today's rapidly changing and converging digital environment, the Commission should view the proposed merger as procompetitive, efficiency enhancing, and consistent with the public interest. And it should not allow the indeterminate nature of the public interest standard to serve as an opportunity for opening a ``regulation by condition´´ bazaar, as has often been the case in the past with respect to the Commission’s handling of merger proposals."
CapNet submitted a comment [5 pages in PDF] expressing its "enthusiastic support for the merger". It stated that "Comcast's commitment to the widespread deployment of broadband services has been abundantly demonstrated in the Washington, D.C. metropolitan area, as well as elsewhere, and the merger will accelerate the upgrading of AT&T's cable systems to speed broadband deployment in communities across the country. The merger will also spur much needed, facilities based competition for telephone services. The merger therefore should be approved." CapNet is a technology group whose members includes Microsoft, Oracle, Computer Associates, Gateway, IBM, HP, and StorageTek. AT&T is also a member.
BellSouth submitted a comment [PDF] which focused more on FCC regulation of its DSL service, than the FCC's review of the AT&T Comcast merger. It wrote that "Cable modem service is an interstate information service and currently is not regulated by the Commission. It is the dominant technology serving the mass market for high speed Internet access. Digital subscriber line (``DSL´´) service provided by incumbent local exchange carriers (``ILECs´´) is the only significant competitor to cable modem service. Thus, absent competition from ILEC DSL services, AT&T Comcast unquestionably would have an increased ability to raise prices for their cable modem services."
It continued that "Current Commission rules regulate ILEC delivery of DSL service far more heavily than they regulate cable modem service. These regulatory disparities already hamper the effectiveness of DSL service as competition for cable modem service. They 1) create significant disincentives to ILEC investment in DSL and other new broadband equipment, 2) delay the rollout of DSL and other broadband services, and 3) raise the costs of those services. Providing AT&T Comcast with additional competitive advantages while retaining regulatory disparities that already make DSL service providers less effective competitors in the marketplace would exacerbate AT&T Comcast's ability to dominate the mass market for broadband services."
BellSouth concluded that the FCC should "condition its approval of the instant Applications of AT&T Corporation, Comcast Corporation and AT&T Comcast Corporation on the elimination of the disparities in regulation between ILEC DSL services and cable modem services."
American Cable Association (ACA) submitted a comment [19 pages in PDF] in which it stated that the merger would "combine in one entity control of the essential digital programming distribution service for small systems -- Headend In The Sky, along with substantial satellite and terrestrially delivered programming. Access to these services is essential for smaller market cable systems to: (i) deliver diverse programming; (ii) deploy broadband services over cable; and (iii) compete with the two national DBS providers EchoStar and DirecTV, both of which will not distribute satellite programming to small cable operators."
It concluded that "AT&T Comcast will control HITS digital distribution services as well as substantial satellite and terrestrially delivered programming. ACA members will have no choice but to transact with the combined company. AT&T Comcast will have ultimate leverage over many smaller cable businesses and smaller market consumers. The question then becomes: How will AT&T Comcast use this leverage?"
The ACA stated that it represents "more than 930 independent cable companies serving about 7.5 million customers predominantly in smaller markets and rural areas."
The Media Access Project (MAP) and other groups submitted a comment [88 pages in PDF] in which in which they requested that the FCC deny the request. They complained about rising cable TV rates and market concentration. They asserted that cable and satellite service providers do not compete with each other. They also stated that the merger would create a huge purchaser for set top boxes, and "allow AT&T/ Comcast to dictate standards. Microsoft's relationship with AT&T and Comcast is also a matter of significant concern. AT&T/ Comcast have given Microsoft preferential treatment for MSN Internet services and for operating software on set top boxes."
House Subcommittee to Mark Up Federal Courts Improvement Act
4/30. The House Judiciary Committee's Subcommittee on Courts, the Internet and Internet and Intellectual Property will meet to mark up HR 4125, the Federal Courts Improvement Act of 2002, on Thursday, May 2. The bill includes various provisions, but only one that relates to technology and communications. Section 104 of the bill would affect the timing of reports regarding the expiration of wiretap orders, and the denial of requests for wiretap orders.
Section 2519 of the Criminal Code pertains to reports concerning intercepted wire, oral, or electronic communications. Currently, this section begins, "(1) Within thirty days after the expiration of an order (or each extension thereof) entered under section 2518, or the denial of an order approving  an interception, the issuing or denying judge shall report to the Administrative Office of the United States Courts--". The statute then lists the information that must be reported. See, 18 U.S.C. § 2519.
HR 4125 would change this language to read as follows: "(1) In January of each year, any judge who has issued an order (or extension thereof) under section 2518 which expired during the preceding year or who has denied approval of an interception during that year, shall report to the Administrative Office of the United States Courts--". HR 4125 would not affect the information that must be reported.
Section 104 of HR 4125 affects when judges must be report. In most cases, it would delay the reporting of information about the expiration of wiretap orders, and the denial of requests for wiretap orders.
GAO Reports on International E-Commerce
4/29. The General Accounting Office (GAO) released a report [100 pages in PDF] titled "International Electronic Commerce: Definitions and Policy Implications". This is a wide ranging report that covers the meaning of international electronic commerce, the available data on growth of e-commerce, barriers to e-commerce, the legal framework affecting e-commerce, and international trade agreements and negotiations.
GAO Reports on Building Security Technologies
4/29. The General Accounting Office (GAO) released a report [72 pages in PDF] titled "National Preparedness: Technologies to Secure Federal Buildings". The report reviews commercially available security technologies, such as magnetic swipe cards, proximity cards, smart cards, keypad entry devices, and biometric systems, metal detectors, x-ray scanners, explosive detection, and video surveillance.
Federal Circuit Rules in Genentech v. Amgen
4/29. The U.S. Court of Appeals (FedCir) issued its opinion in Genentech v. Amgen, a patent infringement case. The Court affirmed in part, and reversed in part.
Genentech is the owner of U.S. Patent Nos. 4,704,362 (titled "Recombinant cloning vehicle microbial polypeptide expression"), 5,221,619 (titled "Method and means for microbial polypeptide expression"), and 5,583,013 (titled "Method and means for microbial polypeptide expression"). These patents disclose methods and cloning vehicles for the introduction and expression of genetic information -- deoxyribonucleic acid (DNA) or genes -- in unicellular organisms that do not naturally contain or express that genetic information. The patents thus enable introduction of a DNA sequence, such as a synthetic gene that expresses a usable protein, into cells via a cloning vehicle.
Genentech filed a complaint in U.S. District Court (NDCal) against Amgen alleging patent infringement. The District Court held that Amgen did not literally infringe Genentech's patents. It also barred Genentech from proceeding on a theory of infringement under the doctrine of equivalents.
The Court of Appeals affirmed as to the doctrine of equivalents, but vacated and remanded the judgment of noninfringement because the District Court erred on a matter of claim construction.
Evans Responds to House Commerce Committee Re ICANN
4/26. Commerce Secretary Donald Evans wrote a letter to Rep. Billy Tauzin (R-LA), the Chairman of the House Commerce Committee, and others, regarding the Internet Corporation for Assigned Names and Numbers (ICANN).
On March 13, Rep. Billy Tauzin (R-LA), Rep. John Dingell (D-MI), Rep. Fred Upton (R-MI), Rep. Ed Markey (D-MA), and Rep. John Shimkus (R-IL) wrote a letter to Secretary Evans in which they stated that "According to the Memorandum of Understanding between ICANN and the Department for implementing a transition for ICANN's technical management of Internet names and addresses, ICANN was to be founded upon the principles of ``stability, competition, bottom-up coordination, and representation.´´ Since its inception, however, ICANN has increasingly departed from that limited role. Its unchecked growth into general Internet policymaking and regulation of commercial rights and interests is very disturbing."
They also offered several recommendations. For example, "The Department should ensure that ICANN's Board of Directors is fully representative of all stakeholders, including corporate stakeholders and members of the general Internet community".
They also recommended that "ICANN should limit its activities to its initial scope of jurisdiction, i.e., coordinating core Internet functions and the technical aspects of naming and address allocation issues". They also suggested that "There should be clear, written procedures for approving new gTLDs, as well as any future technical issues, including an impartial appeals process for those who have process or substantive complaints."
Finally, the group stated that "we want to strongly reiterate our support for continued Department of Commerce control over the so-called ``A-root´´ server. We believe that any assumption of control over that asset by any outside entity would be contrary to the economic and national security interests of the United States."
Evans wrote back that "we support efforts to reform the organization in a manner that takes into account the views of Internet stakeholders." He also stated that "We view the proposal tabled by ICANN President Stuart Lynn as a starting point, not an ending point, for reform discussions. In this regard, we are pleased that at its recent meeting the ICANN Board of Directors took action to establish a process and a Committee on Evolution and Reform through which these important matters can be further considered and discussed by all stakeholders and the Internet community at large."
Reps. Tauzin and Dingell are the Chairman and ranking Democrat of the House Commerce Committee. Reps. Upton and Markey are the Chairman and ranking Democrat of the Telecom and Internet Subcommittee.
Groups Write Commerce Committees About .us Domain Names Sale
4/29. Jerry Berman (Center for Democracy and Technology), Scott Harshbarger (Common Cause), and Andrew Schwartzman (Media Access Project) wrote a letter to the Chairman and ranking members of the House and Senate Commerce Committees, and their telecom subcommittees, regarding the .us Internet domain.
They wrote that "Last week, unbeknownst to most Americans, a major sell-off was held for domain names in .us, such as Thousands of names -- many of which are of significant public interest -- were sold off based on flawed policies developed with almost no public input or public accountability. We urge you, as part of your oversight responsibilities, to hold hearings investigating this matter."
People and Appointments
4/29. The National Telecommunications and Information Administration (NTIA) published a notice that it has extended its deadline for applications for the position of Associate Administrator for Spectrum Management to to May 28.
4/29. Verizon announced that Vice Chairman and CFO Frederic Salerno will retire later this year. Verizon did not name a successor.
4/29. Nokia announced that JT Bergqvist, SVP for IP Mobility, and Pertti Korhonen, SVP for Mobile Software, have been appointed to the Group Executive Board, effective July 1, 2002. See, Nokia release.
More News
4/29. President Bush gave a speech at a campaign event in Albuquerque, New Mexico, for Rep. Heather Wilson (R-NM). Wilson is a member of the House Commerce Committee, and its Telecom and Internet Subcommittee. She is the sponsor of HR 718, the Unsolicited Commercial Electronic Mail Act of 2001, an anti spam bill. She was also one of the leading opponents of the Tauzin Dingell bill in the House Commerce Committee. However, President Bush did not address these issues at the event.
4/29. The House Ways and Means Committee's Subcommittee on Social Security held a field hearing in the state of Florida titled "Protecting the Privacy of Social Security Numbers and Prevent Identity Theft". See, hearing advisory. The General Accounting Office (GAO) submitted a report titled "Social Security Numbers: SSNs Are Widely Used by Government and Could Be Better Protected".
4/29. The Federal Communications Commission (FCC) announced that it adopted a Report and Order pertaining to the ability of public safety answering points (PSAPs) to call back a 911 caller who is disconnected when that caller is using a non initialized wireless telephone. The FCC stated in a release that the Report and Order concludes that "it is still technically infeasible to require carriers, and manufacturers of 911-only phones, to develop and implement technical solutions that would provide PSAPs with a call back number for calls from non-initialized phones". This is WT Docket No. 94-102.
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Tuesday, April 30
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 bills under suspension of the rules.
The Supreme Court is on recess until May 13.
The U.S. Chamber of Commerce will host an event titled Beyond Broadband: Policy and Business Strategies for Next Generation Applications and Services. FCC Chairman Michael Powell will give the keynote luncheon address at about 1:00 PM. The price to attend ranges from $275 to $500. For more information, contact Liza Ratana at 202 463-5500. Reporters interested in attending should contact the U.S. Chamber media relations at 202 463-5682 or press The FCC news media contact is David Fiske 202 418-0513. Location: 1615 H Street NW.
11:45 AM. Sen. Rick Santorum (R-PA), Sen. Charles Grassley (R-IA), and Commerce Secretary Donald Evans will hold a press conference regarding trade promotion authority legislation. Location: Room 215, Dirksen Building.
12:30 - 2:00 PM. The Advisory Committee to the Congressional Internet Caucus will host a panel discussion titled Digital Rights Management: Whose Rights are Being Managed? The scheduled speakers are Rep. Bob Goodlatte (R-VA), Rep. Rick Boucher (D-VA), Jim Lucier (Prudential Securities), Andy Setos (Fox), Gigi Sohn (Public Knowledge), and Miriam Nisbit (American Library Assoc.). RSVP to Danielle Wiblemo at rsvp or 202 638-4370. Lunch will be served. Location: Cannon Caucus Room, Cannon Building.
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. 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.
Wednesday, May 1
The House will meet at 10:00 AM for legislative business.
9:30 AM - 4:00 PM. The Antitrust Division of the Department of Justice (DOJ) and the FTC will hold another in their series of hearings on antitrust and intellectual property. This event is titled "The Strategic Use of Licensing: Is There Cause for Concern about Unilateral Refusals to Deal?" The speakers will be Ashish Arora (Carnegie Mellon), Jonathan Gleklen (Arnold & Porter), Paul Kirsch (Townsend Townsend & Crew), Benjamin Klein (UCLA), Jeff Mason (Univ. of Michigan), Douglas Melamed (Wilmer Cutler & Pickering), Carl Shapiro (UC Berkeley), Christopher Sprigman (King & Spalding), Mark Whitener (General Electric), and John Wiley (UCLA). The DOJ requires that attendees provide their name and date of birth 24 hours in advance to Kathleen Leicht at kathleen.leicht or 202 514-7018. For more information, contact Gina Talamona in the Office of Public Affairs at 202 514-2007, or Frances Marshall in the Antitrust Division at 202 305-2520. Location: Great Hall, DOJ Main Building, 950 Pennsylvania Ave., NW.

10:00 AM. The House Judiciary Committee's Subcommittee on Commercial and Administrative Law will hold a hearing on HR 4561, the Federal Agency Protection of Privacy Act. This bill would require federal agencies to include a privacy impact analysis with proposed regulations that are circulated for public notice and comment. Webcast. Location: Room 2141, Rayburn Building.

10:00 AM. The House Commerce Committee's Subcommittee on Oversight and Investigations will hold a hearing on titled "Oversight and Management of the Government Purchase Card Program". Location: Room 2322, Rayburn Building.
10:00 AM. The House Financial Services Committee's Subcommittee on Capital Markets will hold a hearing titled "Corporate Accounting Practices: Is There a Credibility GAAP?" Location: Room 2128, Rayburn Building.
11:00 AM - 12:00 NOON. The USTrade Coalition will hold a press conference regarding trade promotion authority (TPA) legislation. Location: Room 215, Dirksen Building.
11:00 AM. The Cato Institute will host a panel discussion titled A Progress Report on the HDTV Transition. The scheduled speakers are Mark Cuban (HDNet), Thomas Hazlett (Manhattan Institute), Rick Chessen (FCC), David Donovan (Association for Maximum Service Television), Michael Calabrese (New America Foundation), and Richard Wiley (Wiley Rein & Fielding). See, online registration page. Location: 1000 Massachusetts Ave., NW.
12:00 PM. The FCBA will host a luncheon. The speaker will be Charlie Ergen, Ch/CEO of Echostar. The price is $45 for FCBA members, $35 for government and student members, and $55 for non-members. There will be a reception at 12:00 NOON. The luncheon will begin at 12:30 PM. RSVP to Wendy Parish at wendy by Friday, April 26. Location: Capital Hilton, 16th & K Streets.
1:30 - 1:30 PM. The FCC's World Radiocommunication Conference 2003 (WRC-03) Advisory Committee, Informal Working Group 7 (Regulatory Issues and Future Agendas) will hold a meeting. Location: FCC, 445 12th Street, SW, Room 7-B516 (7th Floor South Conference Room).
2:00 PM. The House Judiciary Committee's Subcommittee on Crime, Terrorism and Homeland Security will hold a hearing on the April 16, 2002, Supreme Court opinion [PDF] in Ashcroft v. FSC, which held unconstitutional a prohibition on computer generated child pormography. Webcast. Location: Room 2141, Rayburn Building.
Deadline to submit comments to the USTR regarding U.S. negotiating objectives and the work program launched at the Fourth Ministerial Conference of the WTO in November at Doha. See, USTR release and notice in the Federal Register.
Extended deadline for submitting comments to the Treasury Department regarding its study of information sharing practices among financial institutions and their affiliates. See, notice in Federal Register.
Thursday, May 2
The House will meet at 10:00 AM for legislative business.
8:30 - 10:00 AM. The American Enterprise Institute (AEI) will host a press breakfast titled on  telecommunications and media issues with former FCC Commissioner Harold Furchtgott- Roth and other AEI scholars. RSVP to Veronique Rodman at 202 862-4871 or vrodman Location: AEI, 1150 17th Street, NW, 11th Floor Conference Room.
9:00 AM - 12:00 NOON. The Antitrust Division of the Department of Justice and the FTC will hold another in their series of hearings on antitrust and intellectual property. This hearing is titled "Patent Settlements: Efficiencies and Competitive Concerns". The speakers will be George Cary (Cleary Gottlieb), Steven Stack (Dechert), Thomas Barnett (Covington & Burling), Joseph Brodley (Boston Univ.), Robert Cook (Drinker Biddle & Reath), Richard Feinstein (Boies Schiller & Flexner), Phillip Proger (Jones Day), and Carl Shapiro (UC Berkeley). See, agenda. For more information, contact Derick Rill (FTC Office of Public Affairs) at 202 326-2472 or Susan DeSanti (FTC Policy Planning Division) at 202 326-2167. Location: Room 432, FTC, 600 Pennsylvania Ave., NW.
9:30 AM - 12:30 PM. The NIST will hold a proposers' conference for its Advanced Technology Program (ATP). See, notice in Federal Register. Location: Gaithersburg Hilton, 620 Perry Parkway, Gaithersburg, MD.
10:00 AM. The Senate Appropriations Committee will hold hearings on homeland security and the FY 2002 supplemental appropriations request. Attorney General John Ashcroft is scheduled to testify at 2:30 PM. Location: Room 192, Dirksen Building.
10:00 AM. The House Judiciary Committee's Subcommittee on Courts, the Internet and Internet and Intellectual Property will meet to mark up HR 4125, the Federal Courts Improvement Act of 2002. Section 104 of the bill would affect the timing of judges' reports regarding the expiration of wiretap orders, or denial of requests for wiretap orders. Webcast. Location: Room 2141, Rayburn Building.
10:00 AM - 12:00 NOON. The House Science Committee's Subcommittee on Research will hold a hearing on the National Science Foundation Reauthorization Act of 2002. Location: Room 2318, Rayburn Building.
Bush Administration officials will meet with EU representatives to discuss a wide range of issues, including trade and trade disputes, terrorism, law enforcement, non proliferation, Middle East, Balkans, Afghanistan, Russia, and other topics. The meetings will include President Bush, USTR Bob Zoellick, Secretary of the Treasury Paul O'Neill, Attorney General John Ashcroft, Secretary of Commerce Donald Evans, and others. The meetings will also include President of the European Commission Romano Prodi, EU Commissioner for External Relations Chris Patten, EU Commissioner for Trade Pascal Lamy, EU High Representative for CFSP Javier Solana, and others. Bush, Aznar, and Prodi will hold a press conference from 13:20 to 13:40 PM. See, EU release. Location: White House.
Friday, May 3
The House will not be in session.
9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in Trans Union v. FTC, No. 01-5202. Judges Edwards, Henderson and Garland will preside. Location: 333 Constitution Ave. NW.
9:30 AM - 3:30 PM. The FCC will host a public forum and technology expo on Telecommunications Relay Service. Location: FCC, 445 12th Street, SW, Room TW-C305.
10:00 AM - 3:00 PM. The FCC's Consumer and Governmental Affairs Bureau will host a public forum and technology expo on the Telecommunications Relay Service (TRS). Location: FCC, Room TW-C305, 445 12th St., SW.
Extended deadline to submit comments to the FCC in response to its Notice of Proposed Rulemaking titled "In the Matter of Appropriate Framework for Broadband Access to the Internet over Wireline Facilities". See, Order [PDF] extending deadline from April 15 to May 3. See also, original notice in Federal Register.
Monday, May 6
Deadline to submit requests to attend or participate in the Copyright Office's 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." See, notice in Federal Register.