Tech Law Journal Daily E-Mail Alert
May 24, 2002, 9:00 AM ET, Alert No. 438.
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This is the Friday, May 24, issue. It is sent on Saturday, May 25, because TLJ experienced a technical problem on Friday. TLJ apologizes for the delay.
The TLJ Daily E-Mail Alert will not be published on Monday, May 27, or Tuesday, May 28. This is a Memorial Day break.
Senate Passes Trade Promotion Authority Bill
5/23. The Senate passed a bill that would give the President trade promotion authority (TPA) on a roll call vote of 66-30. This bill also includes the Andean Trade Preferences Act and language expanding existing trade adjustment assistance (TAA) programs. The House passed a different TPA bill on December 7, 2001. The next step in the process will be the appointment of a conference committee to reconcile differences between the two bills.
TPA, which is also known as fast track, gives the President authority to negotiate trade agreements that the Congress can approve or reject, but not amend. It would strengthen the negotiating position of the President.
TPA would benefit technology companies that sell products abroad. The Semiconductor Industry Association (SIA) stated in a release that "Among the key trade negotiations that the U.S. will be able to pursue utilizing TPA are with the new round of World Trade Organization (WTO) talks, as well as work on reaching free trade agreements. The SIA has a number of key priorities within the context of the WTO talks, including such issues as eliminating tariffs on semiconductors and information technology goods around the world, strengthening intellectual property protection, and maintaining strong U.S. trade laws. TPA will also enable U.S. negotiators to pursue free trade agreements in areas like Latin America, where prohibitively high tariffs are maintained on many high technology goods."
The Senate bill includes an amendment (No. 3408), sponsored by Sen. Mark Dayton (D-MN) and Sen. Larry Craig (R-ID) that would create a procedure that would allow a point of order to exclude changes to trade remedy laws from TPA implementing legislation. The point of order could only be waived by a majority of Senators.
9th Circuit Reverses in USA v. Adamson
5/23. The U.S. Court of Appeals (9thCir) issued its opinion [PDF] in USA v. Adamson, in which the Appeals Court reversed a conviction for wire fraud and money laundering. The case arose out of the defendant's purchase and resale of used Hewlett Packard servers.
Adamson was an owner of a company that sold used computer equipment, including servers. This company purchased used HP servers from HP. The company also upgraded these servers through the use of an HP software utility called "SS_Config", which was password protected to prevent unauthorized use.
A grand jury of the U.S. District Court (EDCal) returned an indictment against Adamson alleging wire fraud and money laundering. The prosecution alleged that Adamson bribed the HP employee who handled the sale of the servers, and obtained from another HP customer a copy of SS_Config and its password. Adamson's company then obtained licenses from HP for the upgraded servers. The prosecution alleged that Adamson engaged in misrepresentation, an element of wire fraud, to induce HP to issue these licenses. However, the specific act of misrepresentation alleged in the indictment was different from the act of misrepresentation proved at trial, and contained in the jury instructions. The trial jury returned a guilty verdict. Adamson appealed.
The Appeals Court reversed. It wrote that "One of the primary purposes of an indictment is to inform a defendant of ``what he is accused of doing in violation of the criminal law, so that he can prepare his defense.´´ ... This purpose was not served here. If the indictment had not specified a different particular misrepresentation, one might say the variance was benign. Having specified a different particular misrepresentation, however, the indictment not only failed to inform the defendant of the actual misrepresentation that would be shown at trial, but it also affirmatively misled the defendant and obstructed his defense at trial." (Citation omitted.) The Appeals Court also found reversible error in the District Court's limitation of the cross examination of a witness. Reversed and remanded.
Senate Judiciary Committee Approves Cyber Security Bill
5/23. The Senate Judiciary Committee amended and approved S 1989, The National Cyber Security Defense Team Authorization Act. The bill, which is sponsored by Sen. Charles Schumer (D-NY), would "establish a team of representatives of various Federal departments and agencies" that would "identify segments of the infrastructure of the Internet (including software, hardware, and other physical infrastructure) that are vulnerable to terrorist attack", and then make recommendations on how to eliminate such vulnerabilities. The Committee approved one amendment that would add a subsection authorizing the appropriation of $10 Million.
Such a team already exists. It is headed by Richard Clarke, the President's Special Advisor for CyberSpace Security.
More News
5/22. Sen. Diane Feinstein (D-CA), Sen. Jon Kyl (R-AZ), Sen. Jeff Sessions (R-AL), and Sen. Charles Grassley (R-IA) introduced S 2541, a bill to amend the criminal code to establish penalties for aggravated identity theft. It was referred to the Senate Judiciary Committee.
5/23. North Carolina Utilities Commission (NCUC) endorsed BellSouth's application to provide in region interLATA services in the state of North Carolina. On May 22, the Alabama Public Service Commission endorsed BellSouth's long distance application. BellSouth's next step is to file a Section 271 applications with the Federal Communications Commission (FCC). On May 15, the FCC approved BellSouth's application to provide long distance services in Georgia and Louisiana.
5/23. The Federal Communications Commission (FCC) published a notice in the Federal Register summarizing its grant of BellSouth's Section 271 application to provide in region interLATA services in the states of Georgia and Louisiana. See, Federal Register, May 23, 2002, Vol. 67, No. 100, at Pages 36186 - 36188.
5/23. The Federal Communications Commission (FCC) published a notice in the Federal Register regarding its recently released order pertaining to "issues associated with the inability of a public safety answering point to call back an emergency caller for further critical information when that caller is dialing 911 using a non-service-initialized wireless telephone." The order is effective October 1, 2002. Public comment on the information collection is due by July 22, 2002. See, Federal Register, May 23, 2002, Vol. 67, No. 100, at Pages 36112 - 36117.
5/23. The Federal Trade Commission (FTC) published a notice in the Federal Register regarding its issuance of a final rule governing the safeguarding of customer records and information for the financial institutions subject to its jurisdiction, as required by Section 501(b) of the Gramm Leach Bliley Act. See, Federal Register: May 23, 2002, Vol. 67, No. 100, at Page 36483 - 36494. See also, FTC release of May 17.
5/23. The U.S. Patent and Trademark Office (USPTO) published a notice in the Federal Register that it is amending its rules "to provide that certain trademark documents sent by United States Postal Service (USPS) ``Express Mail Post Office to Addressee´´ service (Express Mail) will no longer be considered to have been filed with the USPTO on the date of deposit with the United States Postal Service, but will be deemed to have been filed on the date of receipt in the USPTO." This rule change takes effect on June 24, 2002. See, Federal Register, May 23, 2002, Vol. 67, No. 100, at Pages 36099 - 36102.
Powell Addresses Broadband Deployment
5/22. The Federal Communications Commission (FCC) hosted a discussion of regulatory issues affecting broadband deployment. The speakers included FCC Chairman Michael Powell, Commissioners Kathleen Abernathy, Michael Copps and Kevin Martin, Michael Binder (Industry Canada), Jeong Seon Seol (Korean Embassy), and Simon Towler (British Embassy).
Powell reviewed the FCC's approach to regulation affecting broadband in his opening remarks. He stated that the FCC "is taking a concerted comprehensive approach to bring regulatory clarity to what is at best a murky and confusing policy area. Of course, our actions in this area will first and foremost be grounded in the Communications Act, taking into account the statutory objectives of competition, universal service, and consumer protection. We have clearly set out the principles that guide our action in the broadband space."
"First, we will promote the ubiquitous availability of broadband infrastructure to all Americans. This is Congress' vision, and it is universally recognized that the promise and the potential of broadband are ones that every American and world citizen should enjoy. But, as we must, a word of caution, as we strive to achieve this worthy goal. If history is any guide, revolutions and infrastructure build outs, take time."
"Second, the Commission will conceptualize any platform that is capable of fusing communications power with computing power to provide high bandwidth intensive content to meet the demands of consumers. That is, we recognize that broadband is not merely cable modem service service, or DSL. We work to empower any technology that will help close the gap of time and distance in acquiring information."
"Third, at this stage in the development, any broadband regulatory environment must serve to promote investment and innovation. Substantial risk investment and capital is needed either to upgrade legacy networks, or to develop new ones to support broadband capability and applications. Broadband capable networks must, whether through market forces, or government mandate, preserve a proper climate for innovation."
"Fourth, and finally, sound regulatory policy should, where appropriate, harmonize regulatory rights and obligations that are attached to the provision of similarly situated services across platforms. The convergence of industry is where advanced networks allow entities in traditionally distinct market segments to enter each others' market, and into new similar markets, demands that we rationalize our regulatory regime to address these changes."
"Having set out our guiding principles, my colleagues and I have over the past six months initiated several major broadband proceedings to clarify the regulatory environment for new services, and the lower costs and risks associated with the deployment of new infrastructure. Clearer, more enlightened rules are vital to promote the infrastructure and devices that will bring the power of the information age home to every American. The Commission has also recognized that it must look in at itself and revolutionize the way that we operate in order to respond effectively to rapid changes and convergences. It is important to emphasize that while we have committed significant resources to initiating or completing these rulemakings, the legal and regulatory issues implicated here have yet to be resolved. But they must be resolved, if we collectively intend to facilitate the ubiquitous availability of broadband to all Americans," said Powell.
Industry Canada's Michael Binder then gave a presentation on broadband deployment in Canada. Powell and Binder then engaged in a two person dialogue.
Content v. Information. Powell discussed the content and information available over broadband networks. He stated that "I think one of the things that has convinced me of its long term importance, is -- forget all the applications, forget all the content provided by Disney -- and think just about what it means in terms of the value of simple information. Anything that closes the time and distance in which an individual can access information truly opens up a whole new world of possibilities that were traditionally constricting. Everything from commercial transactions, when, basically, most of the time, in a car sale situation, most of the price, is information that you don't know, what the car really costs, that the dealer knows, that you don't know, and the negotiation is a laborious effort to find out."
Powell continued: "I think that the more individuals, as consumers, and individual citizens can get information when they want it, when they need it, and quickly, I think that information component, which I think is the grease of society, opens up all kinds of possibilities that we can't imagine. But, it is a challenge. And, the content issue is one of the things that we struggle with in the United States, is, consumers say the same thing, ``We value it; bring it to us´´. At the same time, when you provide valuable content and charge a penny for it, they won't."
Mass Market v. Community Institutions. Powell stated that "In Canada, you put an enormous effort ... a significant amount of funds towards schools and libraries. The United States has done the same thing, and commits nearly 2.8 Billion dollars a year to wire schools and classrooms in the United States. And, it makes me wonder if not one of the smart broadband approaches is the focus on key community institutions -- schools, libraries, city hall, universities, community institutions -- as a way of driving the infrastructure, as opposed to immediately seeing it as an individualized consumer mass market product."
Ubiquity v. Competition. Powell also discussed the goals of ubiquity and competition in an off the cuff discussion with Michael Binder. Powell stated that "the tension and the tradeoff -- tradeoffs that one has to struggle with -- between ubiquitous deployment of infrastructure and competition. If we remember our experiences with the phone system, in many ways, governments around the world made the judgment that to get infrastructure to everyone, we should have a natural monopoly. We should have a government owned company. In the United States, it was a government sanctioned monopoly. In most of the world it was an actual government institution. And, we desire that ubiquity so quickly, or sufficiently important, that, that that was the choice that was made. Because, of course, monopolies can be very efficient, if that is your overall objective."
"On the other hand, I think, rightly, governments around the world have become much more enlightened about the benefits of competition, even in the telecommunications space, and have liberalized, or have attempted to introduce greater amounts of competition. And, a lot of times, what I feel the debates are, in tension with, is, how important is broadband really quickly, in terms of pressure people, towards larger carriers, bigger infrastructure, less cognizant of some competitive tradeoffs, and then others who think less so, in the competitive ... And that tension I think is going to be a big part of how countries resolve this. Which is why I think expectations are critical. Because, if one is too hasty I think that it would lead to being less concerned about the competitive aspects and more concerned about getting there. And, I struggle with that all the time."
Powell did not take questions from the audience. Powell declined to respond to questions from reporters afterwards.
Monday, May 27
The House and Senate will not be in session from Monday, May 27 through Friday, May 31, for the Memorial Day District Work Period.
Memorial Day. The FCC will be closed. The National Press Club will be closed. The Library of Congress will be closed.
The TLJ Daily E-Mail Alert will not be published
Tuesday, May 28.
The TLJ Daily E-Mail Alert will not be published
Wednesday, May 29
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).
10:00 AM - 1200 NOON. The Business Software Alliance (BSA) will host media breakfast to release the results of BSA's first Internet Piracy Survey on the attitudes and experiences of Internet users regarding downloading and purchasing of software online. To register, contact Roni Singleton at Dittus Communications at 202 775-1401 or roni.singleton Location: BSA, 1150 18th Street NW, Suite 700.
1:00 - 3:00 PM. The Federal Communications Commission's (FCC) Office of Engineering and Technology will host a presentation by Peter Stanforth of MeshNetworks. He will discuss self forming, self healing mesh topology as the alternative to today's star topology cellular systems. See, FCC notice. Location: FCC, Commission Meeting Room (TWC-305), 445 12th Street, SW.
Thursday, May 30
9:00 AM - 5:30 PM. The Federal Communications Commission's (FCC) Public Safety National Coordination Committee will hold a series of meetings. The Interoperability Subcommittee will meet from 9:00 - 11:30 AM. The Technology Subcommittee will meet from 12:30 - 3:00 PM. The Implementation Subcommittee will meet from 3:00 - 5:30 PM. Location: FCC, Commission Meeting Room, 445 12th St., SW.
12:00 NOON. The Congressional Internet Caucus Advisory Committee will host a panel discussion titled "Speeding Broadband Deployment By Balancing of Rights of Way Interests". The speakers will be Marilyn Praisner (Montgomery County Council), Robert Nelson (Michigan Public Service Commission), Martin Stern (I-ROW), and Sandy Wilson (Cox Enterprises). Lunch will be served. RSVP to rsvp or call Danielle at 202 638-4370. Location: Room HC-5, Capitol.
Friday, May 31
8:30 AM - 4:00 PM. The National Science Foundation's (NSF) Advisory Committee for Computer and Information Science and Engineering will hold an open meeting. For more information, contact Gwen Blount at 703 292-8900. See, notice in Federal Register, May 10, 2002, Vol. 67, No. 91, at Page 31846. Location: National Foundation, 4201 Wilson Blvd., Room 1235, Arlington, VA.
9:30 AM - 12:30 PM. The Federal Communications Commission's (FCC) Public Safety National Coordination Committee will hold a General Membership meeting. Location: FCC, Commission Meeting Room, 445 12th St., SW.
Monday, June 3
10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Rambus v. infineon Technologies, No. 01-1449, an appeal from the U.S. District Court (EDVa) in a patent infringement case involving semiconductor memory devices. At issue is the existence and scope of the patent disclosure obligations that arise as a result of participation in a standard setting body. This is D.C. No. 3:00CV524; the District Court opinion of August 9, 2001 is at 2001 WL 913972. Location: LaFayette Square, at 717 Madison Place, NW.
2:00 - 3:30 PM. The Federal Trade Commission's (FTC) Bureau of Competition will hold a public workshop on merger investigation best practices. This is the first workshop of a seven part, five city, series. This event will focus on electronic records. See, FTC release. Location: FTC, Room 332, 600 Pennsylvania Avenue NW.
Extended deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) titled "In the Matter of Appropriate Framework for Broadband Access to the Internet over Wireline Facilities". This is CC Docket No. 02-33. See, Order [PDF] extending deadline from May 14 to June 3. See also, original notice in Federal Register.
FTC Files & Settles Complaint Against Software Marketer
5/22. The Federal Trade Commission (FTC) filed a complaint [PDF] in U.S. District Court (SDCal) against Micro Star Software, Inc., a software marketing company, alleging that it misled consumers regarding a 30 day trial offer and its continuity program, in violation of the FTC Act, the Telemarketing Sales Rule (TSR), and the Unordered Merchandise Statute. The FTC and Micro Star simultaneously filed a Consent Decree [PDF] which requires payment of $90,000 civil penalty, disclose of all material terms and conditions of trial offers and continuity program memberships, and monitoring of the behavior of telemarketing representatives.
People and Appointments
5/23. The Senate Judiciary Committee approved the nomination of Brooks Smith to be a Judge of the U.S. Court of Appeals for the Third Circuit by a vote of 12-7. Republican members of the Committee, and Sen. Joe Biden (D-DE), Sen. John Edwards (D-NC), and Sen. Herb Kohl (D-WI) vote in favor. His nomination still requires confirmation by the full Senate.
5/23. Lisa Griffin was named Deputy Chief of the Federal Communications Commission (FCC) Enforcement Bureau Market Disputes Resolution Division (MDRD). Before joining the FCC, she was a partner in the law firm of Ross Dixon & Bell. See, FCC release.
5/23. Lori Holy was named an Attorney Advisor in the Federal Communications Commission's (FCC) Office of Legislative Affairs (OLA). She will focus on media and convergence issues. She previously worked at the National Association of Broadcasters (NAB). See, FCC release.
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