Tech Law Journal Daily E-Mail Alert
August 27, 2002, 9:00 AM ET, Alert No. 499.
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BellSouth Seeks UNE Relief from FCC
8/23. Representatives of Time Warner Telecom and BellSouth met with officials of the Federal Communications Commission's (FCC) Wireline Competition Bureau (WCB) regarding their proposal that the FCC "grant targeted UNE relief and require carriers to start reporting eleven special access performance measures".
The two companies recommended to the FCC the following unbundled network element (UNE) relief: "Sunset switching UNE for business customers", "Remove dedicated transport UNE where 3 or more competitive transport providers exist in either A or Z wire center", and "Retain local service test for special access circuits that CLECs wish to convert or to purchase as UNEs". See, materials [PDF] submitted to the FCC.
BellSouth also stated in a release that "that hundreds of CLECs have purchased their own switches to provide competitive business services. This demonstrates that CLECs are not impaired in providing switching to business customers. Similarly, ``transport, (dedicated circuits between telephone company central switching offices) is deemed to be competitively available in areas where there are three or more competitive transport providers operating. The framework also advocates that existing local usage requirements should continue to apply to certain types of special access lines and that those lines may not be converted to UNEs unless one of the local usage tests is met." (Parentheses in original.)
UNE Platform (UNE-P) permits competitors of the incumbent local exchange carriers (ILECs), such as BellSouth, to use UNEs at discounted total element long run incremental cost (TELRIC) rates. The ILECs have long opposed this. However, recent initiatives, such as this BellSouth Time Warner Telecom proposal, may reflect concern over increasing use of UNE-P by interexchange carriers (IXCs) such as AT&T and WorldCom.
Robert McDowell, VP and Assistant General Counsel of CompTel, criticized the proposal in a statement. He wrote that "This private agreement is designed to control the prices and availability of critical telecommunications services to other competitors and large retail customers. This self serving arrangement will benefit two of the largest suppliers of special access services -- Bell South and Time Warner -- to the detriment of competition. It is obvious that this sweetheart deal is not in the public interest. CompTel is confident that the Commission will see through this transparent attempt to get FCC approval of what is tantamount to a private price fixing agreement, and dismiss it."
6th Circuit Expands Public Right of Access to Quasi Judicial Proceedings
8/26. The U.S. Court of Appeals (6thCir) issued its opinion in Detroit Free Press v. Ashcroft, holding that the First Amendment confers a public right of access to deportation hearings. In 1980 the Supreme Court held in Richmond Newspapers Inc., v. Virginia, 448 U.S. 555, that there is a right of access to judicial proceedings. The Sixth Circuit, relying upon Richmond Newspapers, held that there is a right of access to a post September 11 deportation hearing, which is a quasi judicial administrative proceeding.
The Detroit Free Press and other newspapers, Rabih Haddad, who is a person subject to deportation, and Rep. John Conyers (D-MI), the ranking Democrat on the House Judiciary Committee, filed complaints in U.S. District Court (EDMich) seeking declaratory and injunctive relief pertaining to a directive from the Chief Immigration Judge directing U.S. Immigration Judges to close special interest cases.
The District Court granted the newspaper plaintiffs' motion for preliminary injunction. It held that the newspaper plaintiffs have a First Amendment right of access to the proceedings under Richmond Newspapers.
The Appeals Court affirmed. The Appeals Court also relied upon Richmond Newspapers. The Court thus expanded the principle to apply to quasi judicial administrative proceeding, such as the deportation case at issue. The Appeals Court, however, did not find that there is a right held by the press that is distinct from the public's right of access.
7th Circuit Applies Doctrine of Laches in Trademark Infringement Case
8/21. The U.S. Court of Appeals (7thCir) issued its opinion [PDF] in Chattanoga Manufacturing v. Nike and Jordan, a trademark case involving the mark "Jordan". The Appeals Court affirmed a District Court dismissal of a trademark infringement claim brought by a ladies clothing maker which holds the mark "Jordan" against Nike and Michael Jordan. The claim is barred by the doctrine of laches.
Background. Plaintiff Chattanoga Manufacturing is a manufacturer and marketer of women's clothing. It obtained a USPTO registration of the mark "Jordan" in connection with women's clothing. Defendant Michael Jordan is the Michael Jordan. He has licensed to Nike the right to use his name and image in connection with various Nike products. Nike makes and markets sporting goods, including Michael Jordan endorsed footwear, apparel, and accessories. Nike has extensively used the Jordan name since 1985.
District Court. Chattanoga filed a complaint in U.S. District Court (NDIll) against Nike and Jordan, alleging trademark infringement and unfair competition in violation of the Lanham Act, 15 U.S.C. 1114(1) & 1125(a). Nike filed counterclaims alleging that Chattanoga's trademark was improperly registered by the USPTO and should be cancelled. The District Court found that Chattanoga's trademark infringement claims were barred under the doctrine of laches and that Michael Jordan could not be held liable in his personal capacity. The District Court then dismissed with prejudice Nike's counterclaims as moot.
Appeals Court. The Appeals Court affirmed. It wrote that "The doctrine of laches is derived from the maxim that those who sleep on their rights, lose them. ... For laches to apply in a trademark infringement case, the defendant must show that the plaintiff had knowledge of the defendant's use of an allegedly infringing mark, ... that the plaintiff inexcusably delayed in taking action with respect to the defendant's use, and that the defendant would be prejudiced by allowing the plaintiff to assert its rights at this time." The Court noted that given the extensiveness of Nike's advertising, Chattanoga knew of Nike's use of the mark. Also, since Nike had used the mark since 1985, the delay in filing suit was unreasonable.
The Court also affirmed the District Court's dismissal of the Nike counterclaims as moot. However, it held that the dismissal must be without prejudice. Nike must have a remedy if Chattanoga tries to pass off ladies clothes as endorsed by Michael Jordan.
RIAA Seeks to Enforce Subpoena to Identify Anonymous Infringer
8/20. The Recording Industry Association of America (RIAA) filed a motion and memorandum [19 pages in PDF] in U.S. District Court (DC) in a proceeding brought by the RIAA for the purpose of obtaining and enforcing a subpoena of Verizon's Internet services subsidiary. The RIAA motion states that it seeks the identity of the user of "a computer connected to the Verizon network that is a hub for significant music piracy".
The RIAA motion states that it seeks to enforce a subpoena issued on July 24, 2002, pursuant to the Digital Millenium Copyright Act (DMCA). It states that "Verizon has refused to comply."
17 U.S.C. 512(h) provides, in part, that "A copyright owner or a person authorized to act on the owner's behalf may request the clerk of any United States district court to issue a subpoena to a service provider for identification of an alleged infringer in accordance with this subsection."
Subsection 512(h)(5) provides, in part, that "Upon receipt of the issued subpoena, ... the service provider shall expeditiously disclose to the copyright owner or person authorized by the copyright owner the information required by the subpoena, notwithstanding any other provision of law and regardless of whether the service provider responds to the notification."
The proceeding is titled "In Re Verizon Internet Services, Inc.; Recording Industry Association of America v. Verizon Internet Services, Inc." It is D.C. No. 1:02MS00323.
4th Circuit Rules in Harrods Domain Name Dispute
8/23. The U.S. Court of Appeals (4thCir) issued its opinion [46 pages in PDF] in Harrods v. Sixty Internet Domain Names, an in rem action brought by Harrods (the London department store) involving numerous domain names registered by Harrods (an all but defunct Buenos Aires business once affiliated with Harrods of London). The case addresses the issues of trademark infringement, trademark dilution, and bad faith registration under the Anticybersquatting Consumer Protection Act (ACPA).
The U.S. District Court (EDVa) dismissed the infringement and dilution claims, holding that in rem actions could only be maintained for bad faith registration claims under  1125(d)(1). Prior to discovery, the District Court granted summary judgment with respect to six domain names. After discovery and trial, the District Court awarded judgment to Harrods UK with respect to the 54 domain names, and ordered those names to be transferred to Harrods UK.
The Court of Appeals affirmed the judgment as to the 54 domain names. It reversed the dismissal of Harrods UK's infringement and dilution claims. It also reversed the grant of summary judgment with respect to the six domain names.
Federal Circuit Rules in Monsanto v. McFarling
8/23. The U.S. Court of Appeals (FedCir) issued its opinion [MS Word] in Monsanto v. McFarling, a patent and contract case involving pesticide resistant seeds. The District Court granted an injunction against McFarling, which the Appeals Court affirmed. However, McFarling raised a number of tenuous, but interesting, issues, including enforceability of a choice of forum clause in a contract, illegal tying under the Sherman Act, and patent misuse.
Monsanto hold U.S. Patents Nos. 5,633,435 and 5,352,605, for genetically modified pesticide resistant seeds. Monsanto authorizes companies to manufacture the patented seeds, which are then sold to farmers, such as McFarling. Monsanto requires that the sellers of the seeds obtain from the purchasers a "Technology Agreement" which provides, among other things, that the seeds are to be used "for planting a commercial crop only in a single season". McFarling, a farmer in Mississippi, purchased Monsanto seeds, signed the Technology Agreement, and used the seeds over several years. The agreement also contained a choice of forum clause designating the Eastern District of Missouri.
Monsanto filed a complaint in U.S. District Court (EDMissouri) against McFarling alleging patent infringement and breach of contract. The District Court granted Monsanto injunctive relief. The Appeals Court affirmed.
9th Circuit Dismisses Appeal in Abada v. Schwab
8/21. The U.S. Court of Appeals (9thCir) issued its opinion [PDF] in Abada v. Charles Schwab, in which the Appeals Court held that it lacks appellate jurisdiction over a District Court order remanding to state court a class action suit alleging that a securities broker misled its customers concerning the capabilities of its on-line investment system.
Background. Charles Schwab is a securities broker that allows its customers to conduct securities transactions over the Internet. Aaron Abada opened an account with Schwab.
Proceedings Below. Abada filed a complaint in California Superior Court against Schwab alleging various stated law claims, including unfair competition in violation of California Business and Professions Code  17200 by "falsely and inaccurately representing" that it could provide customers with timely access to their accounts when Schwab knew or should have known that it lacked the capacity to do so. He sought class action status on behalf of other online investors with Schwab accounts. Schwab removed the case to federal court pursuant to 28 U.S.C. 1441 and 1446 and the Securities Litigation Uniform Standards Act of 1998 (SLUSA). Abada moved to remand back to the state court, on the grounds that the federal court lacked subject matter jurisdiction. The District Court eventually granted the motion to remand. Schwab brought the present appeal.
Appeals Court. The Appeals Court dismissed the appeal on the grounds that it does not have appellate jurisdiction to review a remand order that is founded on the absence of subject matter jurisdiction.
Arbitration Clause That Bars Punitives Does Not Prevent Award of AT Treble Ds
8/22. The U.S. Court of Appeals (5thCir) issued its revised opinion [PDF] in Investment Partners v. Glamour Shots, holding that an arbitration clause that prevents the award of punitive damages is enforceable, and does not prevent the award of antitrust treble damages. Judge Edith Jones, writing for the three judge panel, opined that "punitive damages are awarded under notoriously open ended legal standards and a broadly defined constitutional limit concerning the amount awarded. Treble damages, however, represent a mere mathematical expansion of the actual damages".
Tech Crime
8/23. Robert Keppel entered a guilty plea to a charge of theft of trade secrets in violation of 18 U.S.C. 1832(a)(2) in U.S. District Court (WDWash). Keppel sold Microsoft Certified System Engineer (MCSE) and Microsoft Certified Solution Developer (MCSD) exams and answers at his "cheet sheet" web sites. See, USAO release.
8/23. The U.S. District Court (NDCal) sentenced Chan Desaigoudar to 30 months in prison for insider trading in violation of 15 U.S.C. 78j(b) and 78ff(a). Desaigoudar, a former CEO of California Micro Devices, was originally charged in an eight count indictment with conspiracy to commit securities fraud, two counts of securities fraud, false statements, wire fraud and insider trading, in connection with revenue recognition fraud at Cal Micro during 1994. See, USAO release.
8/23. The U.S. District Court (EDCal) sentenced Brannon Marlon to thirty months in prison for mail fraud in connection with a scheme to fraudulently obtain computer services and products. He obtained computer products and services valued at over $1.8 Million on credit by submitting fraudulent credit applications and making other false representations. He then resold some of these items. See, USAO release [PDF].
More News
8/26. The National Telecommunications and Information Administration (NTIA) published a notice [PDF] in the Federal Register that its has approved FIPS 1802, Secure Hash Standard, and has determined that the standard is compulsory and binding on Federal agencies for the protection of sensitive, unclassified information. See, Federal Register, Vol. 67, No. 165, August 26, 2002, at pages 54786 - 54787.
8/26. The U.S. District Court (DC) published in its web site a copy of the May 17, 2002, opinion [34 pages in PDF] of the U.S. Foreign Intelligence Surveillance Court criticizing the FBI and Department of Justice.
8/21. The Recording Industry Association of America (RIAA) announced that it obtained a judgment of $136,260,000 on behalf of its member record companies in U.S. District Court (CDCal) against against Media Group, a CD manufacturing plant, and its former CEO, Jimmy Chan, for copyright infringement. The judgment is based upon 1,500 violations at $90,000 each. However, the defendants do not have the ability to pay. See, RIAA release.
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Publication Schedule
The Tech Law Journal Daily E-Mail Alert will not be published on Wednesday, August 28, Thursday, August 29, Friday, August 30, or Monday, September 2.
Tuesday, August 27
8:00 AM - 3:30 PM. The National Academy of Sciences (NAS) will host partially open, and partially closed, seminar titled "Review of the Patent Office's 21st Century Strategic Plan". See, agenda. Location: NAS, Lecture Room, 500 Fifth Street, NW.
10:00 AM - 12:00 NOON. The State Department's International Telecommunication Advisory Committee (ITAC) will meet. See, notice in Federal Register, July 23, 2002, Vol. 67, No. 141, at Page 48241. Location: Room 1105, State Department.
Deadline to submit comments to the National Telecommunications and Information Administration (NTIA) in response to its request for comments on the effectiveness of Internet blocking and filtering technologies.  1703 of the Children's Internet Protection Act (CIPA) [PDF] directs NTIA to initiate a notice and comment proceeding to evaluate whether currently available Internet blocking or filtering technology protection measures and Internet safety policies adequately address the needs of educational institutions. It also directs NTIA to make recommendations to Congress on how to foster the development of technology protection measures that meet these needs. See, notice in the Federal Register.
Wednesday, August 28
9:30 AM - 3:30 PM. Day one of a two day public hearing before the Federal Election Commission (FEC) on its second Notice of Proposed Rulemaking (NPRM) [67 pages in MS Word] regarding the Bipartisan Campaign Reform Act of 2002 (BCRA), the recently enacted campaign finance reform legislation. This NPRM pertains to "electioneering communications". The proposed rules would exempt webcasts. See also, FEC release and agenda.
Thursday, August 29
8:30 AM - 12:35 PM. The President's Homeland Security Advisory Council (PHSAC) will hold a meeting to receive briefings and to discuss best practices in the areas of mergers and acquisitions, information technology, personnel management and related issues that may concern the creation of the proposed Department of Homeland Security. Public access is limited. See, notice in Federal Register. Location: Indian Treaty Room, Eisenhower Executive Office Building, 725 Seventeenth St., NW.
9:30 AM - 12:00 NOON. Day two of a two day public hearing before the Federal Election Commission (FEC) on its second Notice of Proposed Rulemaking (NPRM) [67 pages in MS Word] regarding the Bipartisan Campaign Reform Act of 2002 (BCRA), the recently enacted campaign finance reform legislation. This NPRM pertains to "electioneering communications". The proposed rules would exempt webcasts. See also, FEC release and agenda.
3:00 PM. The President's Council of Advisors on Science and Technology (PCAST) is tentatively scheduled to meet via teleconference to discuss and approve a draft letter to the President on federal investments in research and development. See, notice in Federal Register, August 26, 2002, Vol. 67, No. 165, at Page 54815. The call-in number is 1 800 403-2017. The access code is 186046.
Deadline to submit comments to the FEC regarding its NPRM regarding "electioneering communications".
Friday, August 30
8:30 - 10:00 AM. Harold Furchtgott Roth and Gregory Sidak of the American Enterprise Institute (AEI) will host a press breakfast to discuss telecom issues. RSVP Veronique Rodman at vrodman @aei.org or call Heather Dresser at 202 862-5884. Location: AEI, 11th Floor Conference Room, 1150 17th Street, NW.
Deadline to submit reply comments to the FCC's regarding its Annual Assessment of the Status of Competition in the Market for the Delivery of Video Programming. See, notice in Federal Register.
Sunday, September 1
Deadline to submit comments to the National Institute for Standards and Technology's (NIST) Computer Security Resource Center (CSRC) regarding its draft Special Publication 800-48, Wireless Network Security: 802.11, Bluetooth, and Handheld Devices [PDF]. This publication examines the benefits and security risks of 802.11 wireless local area networks, Bluetooth networks, and handheld devices. NIST solicits comments regarding the technical and operational countermeasure recommendations. Submit comments to Tom Karygiannis at sp800-48 @nist.gov. See, NIST notice.
The Librarian of Congress' webcasting rule takes effect. This is the final rule providing the terms for the statutory license for eligible nonsubscription services to perform sound recordings publicly by means of digital audio transmissions, also known as webcasting, pursuant to 17 U.S.C. 114, and to make ephemeral recordings of sound recordings for use of sound recordings under the statutory license set forth in 17 U.S.C. 112. See also, LOC summary.
Monday, September 2
Labor Day. The National Press Club will be closed. The FCC will be closed.
Deadline to submit suggestions to the Securities and Exchange Commission (SEC) regarding appointments to the Public Company Accounting Oversight Board, which was created by HR 3763, the Public Company Accounting Reform and Investor Protection Act of 2002, also known as the Sarbanes Oxley bill. See, SEC release.
Tuesday, September 3
The Senate will return from its August recess.
9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in Biltmore Forest v. FCC, No. 01-1392. Judges Ginsburg, Sentelle and Randolph will preside. Location: 333 Constitution Ave., NW.
Wednesday, September 4
The House will return from its Summer District Work Period.
Deadline to submit comments to the National Intellectual Property Law Enforcement Coordination Council (NIPLECC) regarding its agenda and mission. The NIPLECC is co-chaired by the U.S. Patent and Trademark Office (USPTO) and the Department of Justice (DOJ). See, notice in Federal Register, August 5, 2002, Vol. 67, No. 150, at Pages 50633 - 50634. See also, the NIPLECC's 2000 report.
Day one of a three day meeting titled "U.S. Ireland Business Summit". The only event on September 4 is an evening reception on Capitol Hill in the Cannon Caucus Room from 6:30 - 8:30 PM. See, conference web site
Thursday, September 5
8:30 AM - 6:00 PM. Day one of a two day conference titled "Symposium on the Role of Scientific and Technical Data and Information in the Public Domain" hosted by the National Academy of Sciences. See, agenda. Location: National Academy of Sciences Auditorium
2100 C Street NW.
9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in CompTel v. FCC, No. 00-1272. Judges Edwards, Rogers and Williams will preside. Location: Courtroom 20, 333 Constitution Ave., NW.
12:00 NOON. William Lash (Assistant Secretary of Commerce for Market Access and Compliance) will speak on "Trade Compliance After TPA". Location: Heritage Foundation, 214 Massachusetts Ave NE.
2:00 - 4:00 PM. The Federal Communications Commission's (FCC) Advisory Committee for the 2003 World Radiocommunication Conference (WRC-03 Advisory Committee) will hold a meeting. This meeting was originally scheduled for August 22. See, original notice in Federal Register, July 19, 2002, Vol. 67, No. 139, at Page 47549, and rescheduling notice in Federal Register, August 2, 2002, Vol. 67, No. 149, at Pages 50437 - 50438. Location: Commission Meeting Room (TW-C305), 445 12th Street, SW.
Day two of a three day meeting titled "U.S. Ireland Business Summit". Secretary of Commerce Don Evans is scheduled to speak at 9:30 AM. From 2:30 - 4:30 PM there will be a panel discussion titled "Information and Communications Technology". The scheduled panelists include FCC Commissioner Kevin Martin. See, conference web site. Location: Ronald Reagan Building.
Deadline to request to testify before the Trade Policy Staff Committee (TPSC) hearing on China's compliance with the commitments it made in connection with its accession to the World Trade Organization (WTO). See, U.S. Trade Representative (USTR) notice in the Federal Register, July 9, 2002, Vol. 67, No. 131, at Pages 45580 - 45581.