Tech Law Journal Daily E-Mail Alert
June 5, 2002, 9:00 AM ET, Alert No. 444.
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DC Circuit Rules in Global Naps v. FCC
6/4. The U.S. Court of Appeals (DCCir) issued its opinion in Global Naps v. FCC, a petition for review of a Federal Communications Commission (FCC) order refusing to preempt the regulatory authority of Massachusetts Department of Telecommunications and Energy (DTE) in a matter regarding the interpretation of the reciprocal compensation provisions of an interconnection agreement between Global NAPs and Verizon. The Court rejected the petition.
Global NAPs is a local exchange carrier (LEC) in Massachusetts and other states. Verizon is the incumbent local exchange carrier (ILEC) in Massachusetts. Global NAPs and Verizon entered into an interconnection agreement that provides for reciprocal compensation (i.e., for completing local calls made by customers of one company to customers of the other). Many of Global NAPs' customers are Internet Service Providers (ISPs).
Global NAPs sought a declaratory ruling from the DTE that ISP bound traffic is subject to reciprocal compensation under this interconnection agreement. Global NAPs then petitioned the FCC to preempt DTE's jurisdiction and decide the question. Before the FCC responded, the DTE issued an order dismissing GNAPs' claim as moot in light of the DTE's decision that ISP bound calls were not local within the meaning of an identically worded interconnection agreement between Verizon and MCI WorldCom.
The FCC then concluded that the DTE had not failed to act to carry out its responsibility under 47 U.S.C. § 252 and, therefore, that preemption was not warranted. Global NAPs then filed the present petition for review.
The Appeals Court rejected the petition. The Court held that "the FCC's conclusion that § 252(e)(5) does not empower it to look behind a state agency's dismissal of a carrier's claim to evaluate the substantive validity of that dismissal is both a reasonable interpretation of that provision and consistent with the Commission's past practices and precedents."
GAO Releases Report on Government Use of Social Security Numbers
6/3. The General Accounting Office (GAO) released a report [PDF] titled "Social Security Numbers: Government Benefits from SSN Use but Could Provide Better Safeguards".
The report discussed the benefits of government use of SSNs. "When federal, state, and county government agencies administer programs that deliver services and benefits to the public, they rely extensively on the SSNs of those receiving the benefits and services. Because SSNs are unique identifiers and do not change, the numbers provide a convenient and efficient means of managing records. They are also particularly useful for data sharing and data matching because agencies can use them to check or compare their information quickly and accurately with that from other agencies. In so doing, these agencies can better ensure that they pay benefits or provide services only to eligible individuals and can more readily recover delinquent debts individuals may owe."
The report continued that "While government agencies are making wide use of SSNs, they are also taking some steps to safeguard the numbers; however, certain measures that could help protect SSNs are not uniformly in place at any level of government. First, when requesting SSNs, government agencies are not consistently providing individuals with information required by federal law. This information, such as how the SSNs will be used and whether individuals are required to provide their SSNs, is the first line of defense against improper disclosure because it allows SSN holders to make informed decisions about whether to provide their SSN to obtain the services in question. Second, ... our survey identified potential weaknesses in the security of information systems at all levels of government."
The report then addressed the use of SSNs in identity theft. "This growth in the use of SSNs is important to individual SSN holders because these numbers, along with names and birth certificates, are among the three personal identifiers most often sought by identity thieves. Identity theft ... occurs when an individual steals another individual's personal identifying information and uses it fraudulently."
The report also states that "identity thieves most often gained access to this personal information by taking advantage of an existing relationship with the victim. The next most common means of gaining access were by stealing information from purses, wallets, or the mail. In addition, individuals can also obtain SSNs from their workplace and use them or sell them to others. Finally, SSNs and other identifying information can be obtained legally through Internet sites maintained by both the public and private sectors and from records routinely made available to the public by government entities and courts."
7th Circuit Rules in Copyright and Fair Use Case
5/30. The U.S. Court of Appeals (7thCir) issued its opinion in Ty v. Publications International, a copyright infringement and fair use case involving Beanie Babies.
Ty Inc. manufactures Beanie Babies. It holds copyrights to these as "sculptural works". Publications International, Ltd. (PIL) publishes books, including For the Love of Beanie Babies and Beanie Babies Collector's Guide, which contain pictures of Beanie Babies.
Ty filed a complaint in U.S. District Court (NDIll) against PIL alleging copyright and trademark infringement. PIL conceded that the Beanie Babies are copyrighted, and that its books are derivative works, but asserted the affirmative defense of fair use. The District Court ruled on summary judgment that the copying was not fair use, and granted Ty an injunction on the copyright claim.
The Appeals Court reversed and remanded. Judge Richard Posner wrote the opinion, which included an application of legal precedent on fair use, and the distinction between complementary and substitutional copying, to the facts of this case. In addition, the opinion provides an economic analysis of copyright protection and the fair use doctrine. The Court concluded that the issue was not appropriate for summary judgment, reversed, and remanded for further proceedings in light of its opinion.
The Court also addressed the issue of whether it could hear an interlocutory appeal of an injunction on a copyright infringement claim, when the District Court had not yet decided a related trademark claim arising under the same set of facts. It concluded that it could, noting that the only issue on appeal was the fair use defense.
NTIA Director Discusses Spectrum Policy
5/29. National Telecommunications and Information Administration (NTIA) Director Nancy Victory gave a speech titled "Migrating to Advanced Wireless Systems Environments" at an Asia Pacific Economic Cooperation (APEC) meeting in Shanghai, China.
She offered several broad policy recommendations. "First, spectrum policies must be flexible to allow service growth and evolution. Technology changes much too fast for government to timely modify its regulations with every nuance. Moreover, it is impossible for government always to predict the direction of technological development or of consumer demand. Rather, government should strive to set minimal technical standards -- only those needed to minimize interference or permit necessary interoperability."
"Second, government should continually review its existing spectrum policies to ensure they are still necessary and appropriate, given changes in technology and market demands", said Victory. "Third, transparency and predictability of regulation is essential to create the right environment for investment in wireless technology. The acquisition of spectrum and the deployment of wireless facilities generally require substantial investment prior to the time revenue can begin to be collected. In order to make this up-front commitment, spectrum users -- whether they be private sector or government users -- need to be comfortable that they know the rules of the road and that any changes in policy will not be precipitous, but rather preceded by broad information gathering and open debate."
Finally, she stated that "spectrum policies should be designed as much as possible to minimize impediments to competition and market entry, consistent of course with interference protection objectives. Competition and the influx of new market participants is a significant factor in driving innovation, variety, and lower costs to customers -- things that are beneficial to all of our citizens. For this reason, it is important to ensure that market entry and rights of way use policies are open and non-discriminatory."
Reps. Tauzin and Upton Write FCC Re Cross Ownership Rule
6/4. Rep. Billy Tauzin (R-LA) and Rep. Fred Upton (R-MI) wrote a letter to Federal Communications Commission (FCC) Chairman Michael Powell urging the FCC to repeal its newspaper broadcast cross ownership rule.
The two argued that much has changed since the rule was promulgated in 1975, when "there were 7,785 radio stations, 952 television stations, three major broadcast networks (ABC, CBS, and NBC), cable television systems served 13 per cent of television households, direct broadcast satellite (DBS) providers were nonexistent, and the Internet was not commercially available."
The two wrote that today, "there are approximately 12,900 radio stations, 1,600 full power television stations, 2,390 low power television stations, and 230 Class A television stations. There are now four major broadcast networks (ABC, CBS, NBC, and Fox), along with other emerging broadcast networks (e.g., UPN and WB). Today, cable television systems serve approximately 70 per cent of television households (with over 200 video programming services available on such systems, including significant news programming). Today, DBS is serving approximately 15 per cent of multichannel video programming distribution (MVPD) households."
They added that "the Internet also has become a significant source of local and national news for many Americans."
"We believe this explosion of media sources should eliminate any concern regarding a lack of diversity of views in the marketplace and competition, which have been the principal justifications for the rule", they concluded.
The FCC released a Notice of Proposed Rulemaking (NPRM) [PDF] on September 20, 2001 on this matter. It is MM Docket 01-235. Rep. Tauzin is Chairman of the House Commerce Committee; Rep. Upton is Chairman of the Telecommunications and the Internet Subcommittee.
Nader Writes OMB Re Government Software Procurement
6/4. Ralph Nader and Jamie Love, of the Consumer Project on Technology, wrote a letter to Mitch Daniels, Director of the Office of Management and Budget (OMB), regarding federal government procurement of Microsoft software. The letter both asks for information from the OMB, and makes suggestions for using procurement policies to promote competition.
The letter states that "OMB should consider if Microsoft should be required (as a matter of procurement policy) to fully disclose the file formats of its office productivity and multimedia programs, so that the data created in such programs could be reliably read by non-Microsoft software."
The letter also states that "OMB should consider a cost benefit analysis to determine whether dominant software providers should make their source code public, in order to enhance interoperability with products offered by smaller competitors" and that "OMB should consider if limits on the number of purchases from any one firm would enhance competition for PC operating systems and office productivity tools, and if such enhanced competition would have significant benefits in terms of licensing fees."
APEC Ministers Issue Statement Regarding New Economy and IPR
6/4. Asia Pacific Economic Cooperation (APEC) trade ministers met in Puerto Vallarta, Mexico, on May 29-30. They issued a statement which contains some technology and intellectual property rights (IPR) related items.
The statement provides that "Ministers emphasized the positive impact of the new economy on growth and development. In this regard, Ministers welcomed Officials' work to identify key trade policies on services liberalization and tariff and intellectual property regimes that support the new economy, and reviewed their report on the exchange on trade policy information in these areas."
It states that "Ministers also discussed ways to improve IPR enforcement, including Japan's proposal to establish an IPR Service Centre Network, and instructed Officials to continue their discussion in order to report the proposal of appropriate mechanism by next Ministerial Meeting. Ministers called on APEC members to encourage wide participation from business sector in the upcoming "APEC Seminar on Venture Capital and Start-up Companies" to be held in Beijing in December this year."
SEC Commissioner Addresses Fake Scam Web Sites
6/4. Securities and Exchange Commission (SEC) Commissioner Cynthia Glassman gave a speech at a Federal Deposit Insurance Corporation (FDIC) symposium on Enhancing Financial Transparency, held in Washington DC.
She discussed, among other topics, the SEC's use of the fake scam web sites to educate investors. She stated that "In January 2002, the SEC launched a fake ``scam´´ website to warn investors about fraud before they lose their money. Anyone who tried to invest was greeted with an educational message that warns of potential scams. Within weeks of its launch, the site got more than 1.5 million hits, and our Office of Investor Education and Assistance received more than 500 emails, nearly all of which were overwhelmingly positive. We have launched two additional fake scam websites and plan to create more in the months ahead."
Commerce Department Official Addresses Nanotechnology
5/23. The Commerce Department's Phillip Bond gave a speech titled "Building Partnerships to Achieve the Promise of Newer Technology" at Rice University in Houston, Texas.
He stated that "I believe fervently in the economic potential and social advances that nanotechnology can bring", and that "nanotechnology has enjoyed significant R&D funding increases" because in Washington "there is deep bipartisan agreement".
He elaborated that "Nanoscience and nanotechnology -- especially in combination with bio-, info- and cognitive technologies -- have the power to unleash human potential. It is not inconceivable that these technology could truly achieve the miraculous: making the blind see, the lame walk, the deaf hear; curing AIDS, cancer, diabetes and other afflictions; ending hunger; and even supplementing the power of our minds, enabling us to think great thoughts, create new knowledge, and gain new insights."
However, he also cautioned that "these powerful technologies can be put to inappropriate uses and may create moral and ethical dilemmas beyond those we struggle with today. In the hands of terrorists, these technologies could be used to injure or kill millions. They could be used to pierce our privacy monitoring our communications, movements and associations. They could render all current encryption technologies powerless to protect national secrets or our personal privacy." 
People and Appointments
6/4. California Governor Gray Davis announced the appointments of Marcel Poché and Patrick Tondreau as Judges of the Santa Clara County Superior Court. Poché was appointed to the Santa Clara County Superior Court in 1977, and to the Court of Appeal in 1979. He retired in 2000. Tondreau is a partner in the Santa Clara law firm of McTernan Stender Walsh Weingus & Tondreau.
6/4. Peggy Binzel, EVP of the National Cable & Telecommunications Association (NCTA) will leave the NCTA on June 30 to become CEO of CoreNet Global, an Atlanta based professional association representing corporate real estate executives. See, release.
6/3. Alan Nugent was named Chief Technology Officer of Novell. See, release.
More News
6/4. The Department of Education published a notice in the Federal Register regarding applying for Community Technology Centers Program grants for Fiscal Year 2002 to create or expand community technology centers that provide disadvantaged residents of economically distressed urban and rural communities with access to information technology and related training. The deadline for submitting applications is July 19, 2002. See, Federal Register, June 4, 2002, Vol. 67, No. 107, at Pages 38555 - 38577.
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Wednesday, June 5
The House will meet at 10:00 AM for legislative business. The House will likely debate and vote on HR 4664, the Investing in America's Future Act, a bill to authorize and increase appropriations for the National Science Foundation. See, House Science Committee release.
The Supreme Court is in recess until June 10.
8:30 AM - 5:00 PM. Day one of a three day public workshop hosted by the FTC on proposed amendments to the Telemarketing Sales Rule, including the potential development and implementation of a national do not call list. See, FTC release and agenda. Location: Marriott Wardman Park Hotel, 2600 Woodley Road, NW.
9:30 AM. The National School Boards Foundation will host a breakfast (9:00 AM) and media briefing on it release of a national survey titled "Are We There Yet? Research and Guidelines on Schools Use of the Internet". For more information, contact Renee Hockaday at 703 838-6717 or rhockaday Location: Corporation for Public Broadcasting (CPB), 2nd Floor, 401 9th St., NW.
10:00 AM. The House Commerce Committee's Subcommittee on Telecommunications and the Internet will hold a hearing titled "The FCC's UWB Proceeding: An Examination of the Government's Spectrum Management Process." The scheduled witnesses are Michael Gallagher (NTIA), Jeff Shane (Department of Transportation), Stephen Price (Dep. Asst. Sec. for Spectrum, Space, Sensors and C3 Policy, Department of Defense), Julius Knapp (FCC), Richard Nowakowski (City of Chicago, Office of Emergency Communications R&D), Ralph Petroff (Time Domain Corp.), and Dennis Johnson (Geophysical Survey Systems). Webcast. Press contact: Ken Johnson or Jon Tripp at 202 225-5735. Location: Room 2123, Rayburn Building.
12:15 PM. The Federal Communications Bar Association's (FCBA) Global Telecommunications Development Committee will host a brown bag lunch. The topic will be "Caribbean Telecom -- Challenges in Bringing Competition to Monopoly Markets". The speakers will be William Garrison (The Frank Hawkins Kenan Institute of Private Enterprise), Judy Kilpatrick (NTIA), and Joanna Lowry (Cable & Wireless). RSVP to Jonathan Cohen at joncohen or to LaVon Stevens at 202 628-9577. Location: Suite 700, Wilkinson Barker Knauer, 2300 N St., NW (entrance at 24th and N Streets).
2:00 PM. The House Judiciary Committee's Subcommittee on Courts, the Internet and Intellectual Property will hold a hearing titled "DRM: The Consumer Benefits of Today's Digital Rights Management Solutions." Audio webcast. Location: Room 2141, Rayburn Building.
EXTENDED TO JULY 17. Extended 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, May 29 order [PDF] extending deadline from June 5 to July 17. See also, notice in the Federal Register. This is CC Docket No. 01-338.
Thursday, June 6
The House will meet at 10:00 AM for legislative business.
8:30 AM - 5:00 PM. Day two of a three day public workshop hosted by the FTC on proposed amendments to the Telemarketing Sales Rule, including the potential development and implementation of a national do not call list. See, FTC release and agenda. Location: Marriott Wardman Park Hotel, 2600 Woodley Road, NW.
10:00 AM. The House Judiciary Committee will meet to mark up several bills, including HR 3215, the Combatting Illegal Gambling Reform and Modernization Act (Goodlatte Internet gambling bill), and HR 4623, the Child Obscenity and Pormography Prevention Act of 2002. Audio Webcast. Press contact: Jeff Lungren or Terry Shawn at 202 225-2492. Location: Room 2141, Rayburn Building.
POSTPONED. The Senate Commerce Committee's Subcommittee on Communications will hold a hearing titled Universal Service Fund.
10:30 AM. The House International Relations Committee's Subcommittee on International Operations and Human Rights will hold a hearing on titled "An Assessment of Cuba Broadcasting -- The Voice of Freedom". Location: Room 2172, Rayburn Building.
8:00 AM - 5:00 PM. The Institute for International Research (IIR) and ComCare will host a conference titled "e-SAFETY: Delivering Communications & Information Technology Solutions for 21st Century Public Safety". Sen. Conrad Burns (R-MT) will give a keynote address at 8:30 AM. The price to attend is $695. See, IIR notice. Location: Ronald Reagan Building, 1300 Pennsylvania Ave., NW.
Deadline to submit comments to the SEC regarding its proposed rule amending the Investment Advisers Act of 1940 to exempt certain investment advisers that provide advisory services through the Internet from the prohibition on SEC registration set out in § 203A of the Act. The amendments would permit these advisers to register with the SEC instead of with state securities authorities. See, notice in the Federal Register.
Friday, June 7
8:30 AM - 5:00 PM. Day three of a three day public workshop hosted by the FTC on proposed amendments to the Telemarketing Sales Rule (TSR), including the potential development and implementation of a national do not call list. See, FTC release and agenda. Location: Marriott Wardman Park Hotel, 2600 Woodley Road, NW.
10:00 AM. The House Government Reform Committee's Subcommittee on Technology and Procurement Policy will hold a hearing titled "Coordinated Information Sharing & Homeland Security Technology" Location: Room 2154, Rayburn Building.
12:00 NOON - 1:30 PM. The Federalist Society will host a debate on judicial nominations. the participants will be Douglas Kmiec (Dean of the Columbus School of Law) and Elliot Mincberg (General Counsel of People for the American Way). For more information, call Joel Pardoe at 202 822-8138. See, release. Location: Holeman Lounge, National Press Club, 529 14th St. NW, 13th Floor.
12:15 PM. The FCBA's Wireless Telecommunications and International Practice Committees will host a luncheon. The topic will be International Wireless Developments. The price to attend is $15. RSVP to wendy Location: 1750 K Street, NW.
Sunday, June 9
Day one of a three day conference hosted by George Mason University titled "Networked Economy Summit". See, event web site. Location: Hyatt Regency Reston, Reston, VA.
Monday, June 10
The FCBA will host a luncheon. The speaker will be Brian Roberts of Comcast. 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 June 5. Location: Capital Hilton, 16th & K Streets.
Day one of a two day seminar titled "Managing Trade Compliance In Today's Environment". The seminar is offered by the U.S. Department of Commerce's Bureau of Industry and Security (formerly BXA). The price to attend is $325. See, information page. Location: Marriott at Metro Center, 775 12 Street NW.
Day two of a three day conference hosted by George Mason University titled "Networked Economy Summit". See, event web site.
First of three deadlines to submit proposals to the NIST for FY 2002 Advanced Technology Program (ATP) funds. See, notice in Federal Register.
Tuesday, June 11
7:00 AM - 4:00 PM. Day one of a two day conference titled "Current and Emerging Solutions to Public Safety Communications Interoperability" hosted by the NTIA and the Public Safety Wireless Network (PSWN) Program. Audio webcast. See, notice in the Federal Register. Location: Ronald Reagan International Trade Center, 1300 Pennsylvania Avenue, NW.
9:00 AM - 2:00 PM. The American Enterprise Institute (AEI) will host a conference titled "The Future of Telecommunications Regulation". See, agenda and registration page. Location: AEI, 12th floor, 1150 17th St., NW.
9:00 AM - 4:00 PM. Day one of a three day meeting of the NIST's Computer System Security and Privacy Advisory Board (CSSPAB). See, notice in Federal Register. Location: National Security Agency's National Cryptologic Museum, Colony 7 Road, Annapolis Junction, MD.
2:30 PM. The Senate Judiciary Committee's Subcommittee on Technology, Terrorism, and Government Information will hold a hearing on the S 2541, the Identity Theft Penalty Enhancement Act. Location: Room 226, Dirksen Building.
Day two of a two day seminar titled "Managing Trade Compliance In Today's Environment". The seminar is offered by the U.S. Department of Commerce's Bureau of Industry and Security (formerly BXA). See, information page.
Day three of a three day conference hosted by George Mason University titled "Networked Economy Summit". See, event web site.