Tech Law Journal Daily E-Mail Alert
June 25, 2002, 9:00 AM ET, Alert No. 458.
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Rep. Dreier Addresses Tech Related Legislation
6/24. Rep. David Dreier (R-CA), the Chairman of the House Rules Committee, spoke about technology related legislation at a conference hosted by the Computer & Communications Industry Association (CCIA) in Washington DC. He addressed trade promotion authority, the Export Administration Act, and the Internet gambling bill.
Trade Promotion Authority. He stated that "my top priority is ... trade promotion authority". Trade promotion authority, which is also known as "TPA" and "fast track", would permit the President to negotiate trade agreements that the Congress could accept or reject, but not amend. TPA would strengthen the bargaining position of the President, and the U.S. Trade Representative (USTR), in trade negotiations with other nations.
The House passed its version of the bill, HR 3005, the Bipartisan Trade Promotion Authority Act of 2001, on December 6, by a vote of 215-214. The Senate passed its version last month. For a bill to be signed by the President, the House and Senate must be reconcile their differences in a conference committee.
The House Rules Committee sets rules for consideration of bills on the House floor. This Committee has not yet brought to the House floor a procedural motion that would set the structure and mandate for the House's negotiating team.
Rep. Dreier stated that "We have been trying over the week and a half to pass a, basically, a motion to go to conference". He explained that he has not brought the motion to the floor because he currently lacks the votes for passage. He noted that some of the Democrats who voted for the bill last December are not now supportive. He commented that "Speaker Hastert has said we bring legislation to the floor when we have the votes to pass it." He also stated that "We are going to work hard. We are going to take it one vote at a time." He concluded that "We do very much want to get it done this week before we break for the Fourth of July."
Export Administration Act. Rep. Dreier also addressed the Export Administration Act (EAA). The bill would modernize export control laws. It would ease restraints on most dual use products, such as computers and software, but increase penalties for violations. He stated that "eliminating MTOPS as a gauge is obviously the right thing for us".
The Senate passed S 149, the Export Administration Act of 2001, sponsored by Sen. Mike Enzi (R-WY), by a vote of 85-14, just prior to the terrorist attacks of September 11. This bill is supported by the Bush administration. Rep. Dreier introduced HR 2568, the administration bill in the House, on July 19, 2001. It has not passed the House. However, HR 2581, sponsored by Rep. Benjamin Gilman (R-NY), which is a much different export bill that is not supported by the administration or Rep. Dreier, passed the House International Relations Committee on August 1, 2001.
Rep. Dreier stated that he is working with the administration and House Committees. He concluded that EAA "continues to be a high priority".
Internet Gambling. Rep. Dreier was asked during the question and answer session when several bills, including HR 3215, the Combatting Illegal Gambling Reform and Modernization Act (also known as the Goodlatte Internet gambling bill), would be brought to the floor. The House Judiciary Committee completed its mark up the bill on June 18.
Rep. Dreier stated that "right now we are focused on the homeland security bills ... and appropriations bills". He added that "we are trying to see if we can work out a compromise". He also stated that "I don't want to say that we are not going to do them", but "they are not on the agenda".
Microsoft Advocates Passage of Cyber Security Enhancement Act
6/24. Microsoft published an essay in its web site titled "Securing Cyberspace: Our justice system needs better tools for fighting cybercrime".
The essay states that "In order to curb cybercrime, lawmakers should consider more forceful deterrents. The Cyber Security Enhancement Act of 2002, now before the U.S. House of Representatives, addresses weaknesses in current law by directing the U.S. Sentencing Commission to review and amend Federal computer crime sentencing guidelines. The bill empowers judges to issue appropriately tough sentences for computer crime by allowing them to consider intent, violations of privacy rights and the sophistication of the offense in addition to actual loss. Once enacted, the law will help deter cyber crime by subjecting hackers to real penalties for committing real crimes."
This bill, numbered HR 3482, is sponsored by Rep. Lamar Smith (R-TX). The House Crime Subcommittee marked up the bill on February 26, 2002. See, TLJ Daily E-Mail Alert No. 377, Feb. 27, 2002. It was approved by the House Judiciary Committee on May 8, 2002. It has not yet been voted on by the full House.
The Microsoft essay continued that "Legislators can promote cyber security in other ways as well. They can increase funding for law enforcement personnel and funding for more training and equipment to investigate and prosecute cyber criminals."
It also argued that "Action is needed to foster the sharing of information between industry and government about vulnerabilities and threats to critical technological infrastructures. Currently, companies are reluctant to share information because existing law may not adequately protect sensitive or proprietary information provided to federal agencies. Legislation that clarifies and strengthens existing Freedom of Information Act exemptions would encourage more companies to participate in initiatives to protect critical infrastructures."
Cal App Reverses in Domain Name Registration Dispute
6/24. The California Court of Appeal (2/4) issued its opinion [PDF] in Lim v. The.TV Corporation, a contract dispute involving the registration of a domain name. The Court of Appeal reversed the Superior Court's dismissal of the complaint for failure to adequately plead a cause of action for breach of contract.
Plaintiff, Je Ho Lim, is a resident of South Korea. Defendant, dotTV, a Delaware corporation based in California, registers Internet domain names for a fee. It acquired the top-level domain name "tv" through an agreement with the island nation of Tuvalu, which owns the rights to that geographic designation. Lim alleges that he purchased at auction the domain name golf.tv, but that dotTV later disavowed the sale.
Lim filed a complaint in California Superior Court against dotTV alleging breach of contract, intentional misrepresentation and fraud, and breach of the implied covenant of good faith and fair dealing. The Superior Court sustained dotTV's demurer as to the adequacy of the complaint. The Court of Appeal reversed and remanded.
USITC Issues Initial Determination Against Gemstar
6/21. Administrative Law Judge (ALJ) Paul Lukern of the U.S. International Trade Commission (USITC) issued his Final Initial Determination [PDF] in a proceeding titled "In the Matter of Certain Set-Top Boxes and Compenents Thereof", which pertains to certain patents held by Gemstar TV Guide.
The USITC has authority under Section 337 of the Tariff Act of 1930, 19 U.S.C. 1337, to determine whether there is unfair competition in the importation of products into, or their subsequent sale in, the United States, on the basis that there is an infringement of a U.S. patent, copyright, or registered trademark.
Gemstar filed a complaint with the USITC alleging that EchoStar Communications Corporation, Pioneer Corporation, Pioneer Digital Technologies, Pioneer New Media Technologies, Pioneer North America, Inc., Scientific Atlanta, and SCI Systems imported set top boxes into the U.S. that infringed patents held by Gemstar.
The ALJ wrote that "it is the administrative law judge's final initial determination that there has been no violation by any of the respondents of section 337 in the importation into the United States, sale for importation, and the sale within the United States after importation of certain set-top boxes and components thereof." This is USITC Investigation No. 337-TA-4544.
Gemstar stated in a release that "the final initial determination is erroneous and that the proper application of the law does not support it. The Company intends to petition for a review of the final initial determination by the full Commission."
Jonathan Orlick, General Counsel of Gemstar, stated that Gemstar "is determined to continue to protect its intellectual properties and patents which crystallize our innovations and inventions. Today's ruling will not detract from the Company's long standing policy to assert patents against infringing parties, including those involved in the current ITC case."
DOJ Official Addresses Antitrust Enforcement
6/24. The Department of Justice's (DOJ) William Kolasky gave another in his series of speeches on antitrust enforcement. He gave a speech titled "Economic Competition Day: Shared Experiences" in Mexico City, Mexico in which he reviewed eight guiding principles.
On March 18 he gave a speech in which he listed and explained six guiding principles for antitrust enforcement. These six were (1) Protect competition, not competitors, (2) recognize the central role of efficiencies, (3) base decisions on sound economics and hard evidence, (4) realize that our predictive capabilities are limited, (5) impose no unnecessary bureaucratic roadblocks, and (6) be flexible and forward looking.
On June 14 he gave a speech in which he elaborated on the principle that antitrust enforces should base their decisions on sound economics and hard evidence.
In his June 24 speech he expanded his list of principles from six to eight. The two newly added principles are "Impose Strong Deterrent Measures Against Hard Core Cartels" and "Protect Consumer Welfare Through Competition Advocacy".
He elaborated that "Detection and prosecution of hard core cartels should be every competition authority's top enforcement priority. Cartels -- whether in the form of price fixing, output restrictions, bid rigging, or market division -- raise prices and restrict supply, enriching producers at consumers' expense and acting as a drag on the entire economy. In the U.S., we view cartels as crimes, pure and simple, and prosecute those who perpetrate them as criminals."
Kolasky is a Deputy Assistant Attorney General in the DOJ's Antitrust Division. See also, other speeches by Kolasky.
More News
6/24. The Federal Communications Commission (FCC) approved Verizon's Section 271 application to provide in-region interLATA services in the state of New Jersey. This is WC Docket No. 02-67.
6/24. The FCC held an en banc hearing on FCC broadcast and cable equal employment opportunity rules.
6/24. Pascal Lamy, European Commissioner for Trade, gave a speech in Washington DC regarding transatlantic trade relations.
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Tuesday, June 25
The House will meet at 10:30 AM for morning hour and 12:00 NOON for legislative business. The House may take up several bills under suspension of the rules, including HR 4623, the Child Obscenity and Pormography Prevention Act of 2002, a bill which addresses computer generated images.
Day two of a two day conference hosted by the Computer & Communications Industry Association (CCIA) titled "2002 Washington Caucus". Highlights include the following. 7:45 AM: Sen. John Breaux (D-LA) will be the breakfast speaker. 9:00 AM: Rep. Nancy Pelosi (D-CA) will speak. 9:45 AM: Rep. Howard Berman (D-CA) will speak. 10:45 AM: Rep. Rick Boucher (D-VA) will speak. 12:00 PM: Glenn Hubbard (Chairman of the Council of Economic Advisors) will be the luncheon speaker. 2:00 PM: Sen. Max Cleland (D-GA) will speak. 2:45 PM: Marsha MacBride (Chief of Staff of the FCC) will speak. 3:30 PM: Benjamin Wu (Commerce Department) will speak. 4:15 PM: Rep. Zoe Lofgren (D-CA) will speak. See, agenda [PDF]. Location: Willard Hotel, 1401 Pennsylvania Ave., NW.
9:00 AM. The House Commerce Committee's Subcommittee on Oversight and Investigations will hold a hearing on the administration's proposal to create a Department of Homeland Security. Location: Room 2123, Rayburn Building.
9:30 - 11:30 AM. The FCC's WRC-03 Advisory Committee, Informal Working Group 7: Regulatory Issues and Future Agendas will meet. Location: Boeing Company, 1200 Wilson Blvd. Arlington, VA.
10:00 AM. The Senate Judiciary Committee's Subcommittee on Technology, Terrorism, and Government Information will hold a hearings on the President's proposal for reorganizing homeland defense infrastructure. See, notice. Press contact: Mimi Devlin at 202 224-9437. Location: Room 226, Dirksen Building.
11:30 AM - 12:30 PM. The Business Software Alliance (BSA) will release the results results of a survey assessing government preparedness on cyber security. Media may also participate via conference call: 877 403-4562. Snacks will be served. Location: E-Gov 2002, Room 35, Washington Convention Center.
1:00 PM. The Senate Commerce Committee's Subcommittee on Science, Technology, and Space, and the House Science Committee will hold a joint hearing to examine the use of science and technology to combat terrorism. See, notice. Location: Room 2318, Rayburn Building.
4:00 PM. The House Judiciary Committee's Subcommittees on Immigration, Border Security, and Claims, and Crime, Terrorism, and Homeland Security, will hold a joint oversight hearing titled The Risk to Homeland Security From Identity Fraud and Identity Theft. Webcast. Press contact: Jeff Lungren or Terry Shawn at 202 225-2492. Location: Room 2141, Rayburn Building.
Wednesday, June 26
The House will meet at 10:00 AM for legislative business.
8:30 AM - 2:00 PM. The Progressive Policy Institute (PPI) will host a conference on President Bush's proposal to establish a Department of Homeland Security, including how technology and private sector entrepreneurial talents can be tapped to help break down the bureaucratic barriers to sharing information and assessing threats. The scheduled speakers include Sen. Joe Lieberman (D-CT), Rep. Ellen Tauscher (D-CA), Rep. James Moran (D-VA), Rob Atkinson (PPI's Technology & New Economy Project), John Cohen (PPI), and Thomas Siebel (Ch/CEO of Siebel Systems). See, PPI notice. Location: The Hotel Washington, 515 15th Street, NW.
9:30 AM. The Senate Governmental Affairs Committee will hold a hearing to examine the relationship between a Department of Homeland Security and the intelligence community. Location: Room 342, Dirksen Building.
10:00 AM. The Senate Judiciary Committee will hold a hearing to examine the President's proposal for reorganizing our homeland defense infrastructure. See, notice. Press contact: Mimi Devlin at 202 224-9437. Location: Room 226, Dirksen Building.
10:00 AM. The House Commerce Committee's Subcommittee on Telecommunications and the Internet will hold a hearing titled Area Code Exhaustion: What are the Solutions? Webcast. Press contact: Ken Johnson or Jon Tripp at 202 225-5735. Location: Room 2322, Rayburn Building.
10:00 AM. The House Commerce Committee's Subcommittee on Commerce, Trade, and Consumer Protection will hold a hearing on HR __, the Financial Accounting Standards Board Act. Webcast. Press contact: Ken Johnson or Jon Tripp at 202 225-5735. Location: Room 2123, Rayburn Building.
10:15 AM. The House International Relations Committee will hold a hearing and markup of HR ___, the Homeland Security Act of 2002. Webcast. Location: Room 2172 Rayburn Building.
10:15 AM. Federal Trade Commission (FTC) Chairman Timothy Muris, Rep. Frank Wolf (R-VA), and others will hold a roundtable discussion to discuss online gambling directed toward children. See, FTC notice. Location: Room H-309, The Capitol.
10:30 AM. The House Armed Services Committee will hold a hearing on the President's proposal to create a new Department of Homeland Security and its impact on the Department of Defense. Location: Room 2118, Rayburn Building.
11:30 AM. The American Electronics Association (AeA) will hold a press briefing to release a study titled Cyberstates 2002: A State by State Overview of the High Technology Industry. Lunch will be served. See, AeA release. Location: AeA, 601 Pennsylvania Ave, NW, North Building, Suite 600.
12:00 NOON - 1:30 PM. The Congressional Economic Leadership Institute and the National Venture Capital Association will host a luncheon briefing to release a study of the economic impact of venture capital investment in the United States. Rep. Anna Eshoo (D-CA) will speak. For an invitation, contact Emily Mendell at 610 359-9609. Location: Room B340, Rayburn Building.
2:00 PM. The House Judiciary Committee will hold a legislative hearing titled The Proposal to Create a Department of Homeland Security. Tom Ridge, Director of the Office of Homeland Security, will testify. Webcast. Press contact: Jeff Lungren or Terry Shawn at 202 225-2492. Location: Room 2141, Rayburn Building.
6:30 - 8:30 PM. The FCBA's Young Lawyers Committee and Georgetown University Law Center (GULC) will hold a CLE seminar titled Accounting Issues for Telecommunications Lawyers. For more information, contact the GULC at 202 662-9890 or cle@law.georgetown.edu. Location: Piper Marbury Rudnick & Wolfe, 1200 19th Street, NW.
Thursday, June 27
The House will meet at 10:00 AM for legislative business.
9:00 AM - 4:30 PM. The Agriculture Department's Rural Utilities Service (RUS) will hold a meeting to receive public input on "the challenges of deploying broadband services to rural America, the successes, the role of competition in providing access to rural areas". See, notice in Federal Register. Location: Room 0348, South Building, U.S. Department of Agriculture, 1400 Independence Ave., SW.
10:00 AM. The House Judiciary Committee will hold a hearing titled Revisions to the Attorney General's Investigative Guidelines. Attorney General John Ashcroft will testify. Webcast. Location: Room 2141, Rayburn Building.
10:00 AM. The Senate Judiciary Committee will hold an executive business meeting. See, notice. Location: Room 226, Dirksen Building.
12:00 NOON - 1:30 PM. The FTC's Bureau of Competition will hold a public workshop on merger investigation best practices. This is the sixth workshop of a seven part, five city, series. See, FTC release. Location: FTC, Room 332, 600 Pennsylvania Ave., NW.
12:00 NOON. The Cato Institute will host a panel discussion titled Antitrust Flies High: Is the Orbitz Investigation Good News for Consumers? The scheduled speakers are Gary Doernhoefer (Orbitz), James DeLong (Competitive Enterprise Institute), Andrew Steinberg (formerly with Travelocity.com), Thomas Lenard (Progress and Freedom Foundation), and Robert Atkinson (Progressive Policy Institute). Lunch will follow. Webcast. See, notice. Location: Cato, 1000 Massachusetts Ave., NW.
1:00 PM. The Senate Governmental Affairs Committee will continue its hearing to examine the relationship between a Department of Homeland Security and the intelligence community. Location: Room 342, Dirksen Building.
2:00 PM. The Senate Judiciary Committee will hold a hearing on pending judicial nominations. See, notice. Location: Room 226, Dirksen Building.
2:00 PM. The House Judiciary Committee's Subcommittee on Courts, the Internet and Intellectual Property will hold a hearing titled Unpublished Judicial Opinions. Webcast. Location: Room 2141, Rayburn Building.
Friday, June 28
The House will meet at 9:00 AM for legislative business.
8:30 - 11:00 AM. The Alliance for Public Technology (APT) and the High Tech Broadband Coalition (HTBC) will host a breakfast briefing titled From Debate to Deployment: Changing the Broadband Reality. The participants include FCC Commissioner Kathleen Abernathy, who is scheduled to speak at 9:05 AM. Other participants include Debbie Goldman (Communications Workers of America), Allen Hammond (University of Santa Clara School of Law), Edie Herman (Communications Daily), Edward Neaf (Cambridge Strategic Management Group), Paul Schroeder (APT), and Gary Shapiro (Consumer Electronics Assoc. and HTBC). See, agenda. Press contact: Matt Bennett at 202 263-2972 or mbennett @apt.org. Location: Lowe's L'Enfant Plaza Hotel, 480 L'Enfant Plaza.
9:30 AM. The Senate Governmental Affairs Committee will hold a hearing to examine how the proposed Department of Homeland Security should address weapons of mass destruction, and relevant science and technology, research and development, and public health issues. Location: Room 342, Dirksen Building.
10:00 AM. The House Judiciary Committee's Subcommittee on Commercial and Administrative Law will hold an oversight hearing titled Administrative Law, Adjudicatory Issues, and Privacy Ramifications of Creating a Department of Homeland Security. Audio webcast. Location: Room 2141, Rayburn Building.
Deadline to submit comments to the FTC in response to its Notice of Proposed Rulemaking to amend its Telemarketing Sales Rule. The new rule would impose user fees on telemarketers, and their seller or telemarketer clients, for their access to the national do  not call registry, if one is implemented. See, notice in Federal Register.
Monday, July 1
Neither the House nor the Senate will not meet Monday July 1 through Friday July 5, due to the Independence Day work period.
Extended deadline to submit reply comments to the 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, May 29 notice [PDF] extending deadline from June 3 to July 1. See also, Order [PDF] extending deadline from May 14 to June 3, and original notice in Federal Register.
Deadline to submit nominations to the NIST for appointment to the Advanced Technology Program Advisory Committee. See, notice in Federal Register.
Deadline to submit nominations to the NIST for appointment to the Visiting Committee on Advanced Technology. See, notice in Federal Register.