| District Court Excludes
Plaintiffs' Expert Testimony in Cell Phone Brain Cancer Case |
9/30. The U.S.
District Court (DMD) issued an opinion
[27 pages in PDF] in Newman
v. Motorola, a lawsuit against various cellular
service providers and equipment manufacturers seeking damages
for cancer alleged to be caused by cell phones. The District
Court granted the wireless industry defendants' motion to
exclude the expert testimony of the plaintiff, pursuant to
Rule 702 of the Federal Rules of Evidence (FRE). The
plaintiffs wanted to have their expert testify that cell
phones cause brain cancer. The District Court excluded this
testimony, on the grounds that is not reliable.
The opinion is merely an evidentiary ruling. However, it may
have the effect of determining the outcome of this case, and
thus remove a huge potential financial liability from the
wireless industry.
The opinion is an analysis of FRE 702 and court precedent,
particularly the Supreme Court's opinion
in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579
(1993). The District Court held that "When testimony
concerning scientific, technical or other specialized
knowledge is offered in support of a party's claim, the trial
judge must ensure under Rule 702 of the Federal Rules of
Evidence that any such testimony is ``not only relevant, but
reliable.´´" (Citing Daubert.) The District
Court concluded that "no sufficiently reliable and
relevant scientific evidence in support of either general or
specific causation has been proffered by the plaintiffs".
The District Court further wrote that the plaintiffs'
proffered expert witness testimony regarding causation has
"not gained general acceptance in the scientific
community, as demonstrated by the numerous national and
international scientific and governmental published reports
finding no sufficient proof that use of handheld cellular
phones causes human brain cancer, and by the array of
established, experienced, and highly credentialed experts
called to testify by the defense."
The District Court further issued an Order granting the
wireless industry defendants' motion to exclude the
plaintiffs' expert witness testimony, and denying the
plaintiffs' motion to exclude the defendants' expert witness
testimony. |
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| House DOJ Authorization
Bill Includes Distance Learning Provisions |
9/26. The House passed HR 2215,
the 21st Century Department of Justice Appropriation
Authorization Act, by a vote of 400-4. The bill includes
amendments to the Copyright Act to facilitate distance
learning. These provisions are also known as the TEACH Act.
 Rep.
Howard Coble (R-NC), the outgoing Chairman of the House Judiciary
Committee's (HJC) Courts, Internet and Intellectual
Property Subcommittee, said during the floor debate that
"This conference report contains intellectual property
provisions which are very significant, such as PTO
reauthorization; the patent reexamination reform proposal;
intellectual property technical amendments; the TEACH Act,
regarding the distance education program; and the Madrid
protocol implementation concerning the international
registration of trademarks. Our subcommittee of the Committee
on the Judiciary, Mr. Speaker, has worked a long time on these
matters, and in the case of the Madrid protocol for 8 years.
This is much needed reform that will benefit the intellectual
property owners of the intellectual property community, and
the American public as well."
Rep. Tammy Baldwin
(D-WI), focused on the distance learning bill. She said that
"The bill includes the Technology Education and Copyright
Harmonization Act, also known as the TEACH Act. The TEACH Act
extends the current exemption of educational use of
copyrighted materials to distance learning. This will allow
our schools, colleges, and universities to expand educational
opportunities through new technology. Copyright holders and
our educational institutions worked hard to develop this
compromise language."
On July 17, 2002, the House Judiciary
Committee approved S 487,
the Technology, Education, and Copyright Harmonization Act of
2001 (TEACH Act), without amendment, by a unanimous voice
vote. The Senate passed the bill on June 7, 2001. This bill
amends copyright law to extend the exemption for distance
learning to cover the Internet and other digital delivery
media.
Congress amended copyright law in 1976 to create the distance
learning exemption. At that time, the new technology at issue
was analog closed circuit TV. That statute did not reference
the Internet. Also, the 1976 law did not address the copying
of files from one computer to another that is an inherent part
of the operation of the Internet. The TEACH Act addresses
these concerns.
The TEACH Act has had a long history. First, the Congress
recognized the possible need to update the distance learning
exemption when it passed the Digital Millennium Copyright Act
(DMCA) in 1998. Section 403 of the DMCA directed the Copyright Office to
conduct a study on distance education. It issued a report that
recommended that the Congress pass legislation. The first
version of S 487, introduced by Sen. Patrick Leahy (D-VT)
and Sen. Orrin Hatch
(R-OR) on March 7, 2001, was an embodiment of these
recommendations.
However, copyright holders were concerned that the original
version of the bill would facilitate theft of intellectual
property. Hatch and Leahy then instructed interested groups to
negotiate compromise language that would address the concerns
of property owners. Various groups did just that, and Leahy
and Hatch amended the bill to reflect this agreement. The
House Judiciary Committee delayed its passage of the bill, in
part because of efforts to extend the exemption of the bill to
certain activities by libraries.
The bill may benefit rural schools with dispersed students
bodies, colleges that are offering online courses to distant
students, and busy adults who cannot attend their brick and
mortar classroom sessions. The bill may also facilitate a
shift from face to face classroom based models of education to
online teaching models.
The TEACH Act is included as Section 13301 of the Conference
Report on HR 2215, which was published in the
Congressional Record on September 25, 2002, at pages H6586
- 6649. See also, HJC
release and HJC summary
of the conference report on HR 2215. |
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| NTIA Announces PTFP Grants,
Including Distance Learning Grant |
9/30. The National
Telecommunications and Information Administration (NTIA)
announced that it will give away $36 Million in Public
Telecommunications Facilities Program (PTFP) grants. Most of
the money will go to public broadcast television stations.
See, release.
One project at the University
of California at San Diego, which will receive $130,394,
will "develop an Internet based distance learning
system". The NTIA stated that "The project will
purchase four portable video production systems, each capable
of recording and streaming instructional programming live over
the Internet, and editing equipment that would permit the
incorporation of these materials into web based courses."
See, NTIA summary
of funded distance learning projects. |
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| 6th Circuit Rules in
Michigan Bell v. BRE |
| 9/30. The U.S.
Court of Appeals (6thCir) issued its opinion
in Michigan
Bell Telephone v. BRE Communications, a dispute
between an incumbent local exchange carrier (ILEC), a
competitive local exchange carrier (CLEC), and a state public
service commission, regarding special construction charges
associated with unbundling or conditioning certain local
telephone loops. The Appeals Court affirmed in part, reversed
in part, and remanded. |
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| 2nd Circuit Rules on
Adverse Inference Jury Instructions for Failure to Produce
E-Mail |
9/26. The U.S.
Court of Appeals (2ndCir) issued its opinion
in Residential
Funding Corp. v. Degeorge Financial Corp., a
case regarding what sanctions may be imposed upon a litigant
who fails to timely produce either copies of e-mails, or
backup tapes, that are responsive to discovery requests.
Residential Funding Corp. (RFC) and DeGeorge Financial Corp. (DFC)
had a contract dispute. RFC filed a complaint in U.S. District
Court, and DFC counterclaimed. Prior to trial DFC sought
discovery from RFC, including e-mail. RFC continuously delayed
in producing e-mail. DFC continuously sought backup tapes. RFC
refused. DFC ultimately got damaged backup tapes containing
nearly one million emails, just prior to the completion of
the trial. Some email from the relevant time period was
missing.
DFC sought an adverse inference jury instruction regarding
unproduced email. The District Court refused, on the basis
that RFC had not acted in bad faith or with gross negligence,
and that DFC had not shown that the missing e-mails would have
been favorable to its case. The jury returned a $96 Million
verdict for RFC, and the Court entered judgment accordingly.
DFC appealed.
The Court of Appeals vacated and remanded. It wrote, "We
hold that (1) where, as here, the nature of the alleged breach
of a discovery obligation is the non-production of evidence, a
District Court has broad discretion in fashioning an
appropriate sanction, including the discretion to delay the
start of a trial (at the expense of the party that breached
its obligation), to declare a mistrial if trial has already
commenced, or to proceed with a trial with an adverse
inference instruction; (2) discovery sanctions, including an
adverse inference instruction, may be imposed where a party
has breached a discovery obligation not only through bad faith
or gross negligence, but also through ordinary negligence; (3)
a judge's finding that a party acted with gross negligence or
in bad faith with respect to discovery obligations is
ordinarily sufficient to support a finding that the missing or
destroyed evidence would have been harmful to that party, even
if the destruction or unavailability of the evidence was not
caused by the acts constituting bad faith or gross negligence;
and (4) in the instant case, the District Court applied the
wrong standard in deciding the DeGeorge entities' motion for
sanctions."
The Appeals Court further wrote that on remand DFC
"should be given an opportunity to renew its motion for
sanctions, with the benefit of discovery -- including, but not
necessarily limited to, reexamination of the back-up tapes and
appropriate depositions of RFC's affiants -- and, if
appropriate, an evidentiary hearing before the District Court.
Upon consideration of any such motion, the District Court
should vacate the judgment and order a new trial if DeGeorge
establishes that RFC acted with a sufficiently culpable state
of mind (as described above) and that DeGeorge was prejudiced
by the failure to produce the e-mails. Presumably, DeGeorge
would attempt to establish prejudice by pointing to specific
e-mails that it would have used at trial; if so, the District
Court should consider the likelihood that the newly produced
e-mails would have affected the jury's verdict, in light of
all of the other evidence adduced at trial." |
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| GAO Reports on Spectrum
Management |
9/30. The General Accounting
Office (GAO) released a report [77
pages in PDF] titled "Telecommunications: Better
Coordination and Enhanced Accountability Needed to Improve
Spectrum Management". The report reviews the history of
government control of spectrum, the division of
responsibilities among government entities, allocation of
spectrum to users, and preparation for World Radio-
communication (WRC) conferences. The report contains no new or
novel findings. It concludes that the strategy of government
planning agencies should be to "develop a strategy for
establishing ... a plan".
The report notes that almost all spectrum has been allocated,
and hence, "Current methods for allocating spectrum face
difficulties".
It offers three further recommendations. First, with respect
to WRC conferences, the relevant agencies should "prepare
a report containing any needed recommendations for making
improvements". Second, relevant agencies should
"analyze the human capital needs of federal agencies for
spectrum management". Finally, the Department of Commerce
should "develop a strategy for enhancing its oversight of
federal agencies' use of spectrum".
The report was prepared for Sen.
Conrad Burns (R-MT), Sen.
Ernest Hollings (D-SC), Sen. Daniel Inouye
(D-HI), and Sen. John Kerry
(D-MA). All are members of the Senate Commerce
Committee, which oversees the Federal Communications Commission
(FCC), which allocates spectrum used by the private sector,
and the National
Telecommunications and Information Administration (NTIA),
which allocates spectrum used by the government, including
military and public safety entities.
The Senate Commerce Committee will hold a hearing on the
government's role in promoting the future of the
telecommunications industry and broadband deployment on
Tuesday morning, October 1.
The Cellular
Telecommunications & Internet Association (CTIA)
responded to the report. Tom Wheeler, its P/CEO, stated in a release
that "The GAO's report confirms what CTIA has been saying
for almost two years -- there is no national spectrum
management strategy." The CTIA identifies several
pressing matters, including making more spectrum available for
Third Generation (3G) wireless services, making available
spectrum currently used for analog television, resolving the
NextWave / Auction 35 matter, and establishing a spectrum
relocation fund. |
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| Tuesday, October 1 |
The House will meet at 10:30 AM for morning hour and at
12:00 NOON for legislative business. No votes are expected
before 6:30 PM. The House will consider numerous of measures
under suspension of the rules, including HR 556,
the Unlawful Internet Gambling Funding Prohibition Act,
sponsored by Rep. James
Leach (R-IA). See, Whip
Notice.
9:30 AM. The Senate
Commerce Committee will hold a hearings to examine the
government's role in promoting the future of the
telecommunications industry and broadband deployment.
The scheduled witnesses include Reed Hundt (former FCC
Chairman), Michael Price (Evercore Partners), Lawrence Lessig
(Stanford University), Peter Huber (Manhattan Institute), and
Craig Mundie (Chief Technical Officer of Microsoft). Location:
Room 253, Russell Building.
10:00 AM. The House
Commerce Committee's Subcommittee on Telecommunications
and the Internet will hold a hearing titled "Recording
Industry Marketing Practices: A Check-Up". Location:
Room 2123, Rayburn Building.
10:00 AM. The House
Government Reform Committee's Subcommittee on Technology
and Procurement Policy will hold a hearing titled
"Ensuring Coordination, Reducing Redundancy: A Review of
OMB's Freeze on IT Spending at Homeland Security
Agencies". Web cast. Location: Room 2154, Dirksen
Building.
10:00 AM. The Senate
Judiciary Committee will hold a hearing titled
"Narrowing the Nation's Power: The Supreme Court Sides
with the States". Sen.
Charles Schumer (D-NY) will preside. The Committee has not
yet released an agenda or witness list. Nevertheless, the
scope of the hearing could include S 2031,
the Intellectual Property Protection Restoration Act of 2002,
a bill to stop states from evading liability for infringing
intellectual property rights by asserting 11th Amendment
immunity. Location: Room 226, Dirksen Building.
12:30 PM. U.S. Trade
Representative (USTR) Robert
Zoellick will give a luncheon address. Location: National Press Club,
Ballroom, 529 14th St. NW, 13th Floor. |
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| Wednesday, October 2 |
The House will meet at 10:00 AM for legislative business.
The agenda includes several non tech related matters. See, Whip
Notice.
8:00 AM. NueStar will
host a press conference and breakfast titled ".USe-Gov
Breakfast". For more information, contact Denise Henning
at 571 434-5762. Location: Zenger Room, National Press Club, 529 14th
St. NW, 13th Floor.
10:00 AM. The Senate
Judiciary Committee will hold a hearing titled
"Stopping Child Pornography: Protecting our Children and
the Constitution". See, notice.
Location: Room 226, Dirksen Building.
1:30 - 3:30 PM. The FCC's WRC-03
Advisory Committee Informal Working Group 7: Regulatory Issues
and Future Agendas will meet. Location: Boeing Company,
Arlington, VA. |
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| Thursday, October 3 |
The House will meet at 10:00 AM for legislative business.
The agenda includes several non tech related matters. See, Whip
Notice.
10:00 AM - 12:00 NOON. The AEI Brookings Joint Center will
host an event titled "High Stakes Antitrust: The
Clinton Legacy". Location: Stein Room, Brookings
Institution, 1775 Massachusetts Ave., NW.
1:00 - 3:00 PM. The FCC's Office
of Engineering and Technology will host a tutorial titled
"Free Space Optical Communications". FSO is
the practice of transmitting information, or data by means of
modulated beams of light through the atmosphere, rather than
through fiber optical cables. John Schuster, CTO of Terabeam Corporation, will
speak. See, notice
[PDF]. Location: FCC, Commission Meeting Room (TW-C305), 445
12th Street, SW.
The George Mason University (GMU) Tech Center and the
Federalist Society will host a one day conference on cyber
crime. Registration is free, except for persons seeking
CLE credit, who must pay $50. A continental breakfast and
buffet lunch will be provided. See, notice.
Location: GMU School of Law, 3301 Fairfax Drive, Arlington,
VA. |
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| Friday, October 4 |
Target adjournment date for the House and the Senate.
The House will meet at 9:00 AM for legislative business. The
agenda includes several non tech related matters. See, Whip
Notice.
9:30 AM. The U.S.
Court of Appeals (DCCir) will hear oral argument in Seven
Company Services, Inc. v. FCC, No. 01-1326. This is a
petition for review of a final order of the FCC regarding 47 U.S.C.
§ 224 (Section 703 of the 1996 Act) and rates, terms and
conditions of access for attachments by cable operators and
telecommunications carriers to utility poles, ducts, conduits
and rights of way. See, FCC order [78 pages in PDF in three
parts: 1
| 2
| 3]
titled "Consolidated Partial Order on
Reconsideration", released on May 25, 2001. This in the
proceedings titled "In the Matter of the Commission's
Rules and Policies Concerning Pole Attachments" (CS
Docket No. 97-98), and "In the Matter of the
Implementation of Section 703(e) of the Telecommunications Act
of 1996" (CS Docket No. 97-151). Judges Edwards, Rogers
and Garland will preside. Location: 333 Constitution Ave., NW.
9:30 - 10:45 AM. Paul Gallant (Chair of the FCC's Media
Ownership Working Group) will participate on a panel titled,
"Media Ownership and the Public Interest: The Role of the
FCC" at a Consumer
Federation of America's conference on energy and
communications regulation. Location: Radisson Barcelo Hotel.
12:15 PM. The FCBA's
Wireless Committee will host a luncheon titled "Wireless
Industry Consolidation: Is It Needed? Will It Happen?"
The scheduled speakers are Chris Murphy (Consumers Union), Rudy
Baca (Precursor Group),
and Lauren Patrich (FCC Commercial Wireless Division). The
price to attend is $15. RSVP to wendy @fcba.org. Registrations and
cancellations due by 5:00 PM on October 1. Location: Sidley Austin, 1501
K Street, NW, Conference Room 6E. |
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| Monday, October 7 |
The Supreme Court will return from its recess, which it
began on June 28, 2002.
? THIS HEARING HAS BEEN NOTICED FOR
BOTH OCTOBER 7 and 9. 10:00 AM. The House Commerce
Committee's Subcommittee on Commerce, Trade, and Consumer
Protection will hold a hearing titled "Telecommunications
and Trade Promotion Authority: Meaningful Market Access Goals
for Telecommunications Services in International Trade
Agreements". Web cast. See, notice.
Location: Room 2322, Rayburn Building.
12:00 NOON. The FCBA's
Engineering and Technical Practice Committee will hold a brown
bag lunch to discuss committee planning and priorities for the
rest of the year. Location: Paul Hastings, 1299 Pennsylvania
Ave., NW, 10th floor.
2:00 - 4:00 PM. The FCC will hold
an en banc hearing on "the current state of the
telecommunications sector and to discuss steps needed to
restore its financial health". See, notice
[PDF]. Location: FCC, Commission Meeting Room, 445 12th St.,
SW.
Extended deadline for the U.S.
International Trade Commission (USITC) to complete its
investigation titled "Certain Integrated Circuits,
Processes for Making Same, and Products Containing Same".
This is the USITC's Investigation No. 337-TA-450. See, notice
in the Federal Register. |
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