Powell Addresses DTV
10/22. Federal Communications Commission
(FCC) Chairman Michael Powell gave a
the Association for Maximum Television's DTV Update Conference.
Powell (at right) stated that "In the five years that I have been on the Commission, I have heard a great deal
of grumbling about the DTV transition: ``It is a great government give away;´´
``Consumers do not want it;´´ ``It is an unnecessary industrial policy;´´ and
``It’s too expensive with little return.´´ The cold truth, however, is that we have no choice -- not just because Congress has
mandated it (which is reason enough) but because the trends in technology and
the forces of change will ultimately demand it of any provider that hopes to be
relevant in the digital future." (Parentheses in original.)
He continued that "We recognized last April that
the transition had to be driven forward -- to satisfy the wishes of Congress, to
meet the expectations of consumers, and, most importantly, to advance free
television's future -- perhaps even to ensure its survival."
He stated that "We began working with Congressman Tauzin and other key members of Congress to
re-energize the dialog around solutions that would move things faster.
Subsequently, we crafted a voluntary plan to speed the transition and I am proud
to say that industry has responded. We called on the top four networks and HBO
and Showtime to provide consumers with high definition or value added DTV
programming during prime time. We called on broadcast licensees to pass through
and promote network DTV programming. We asked cable operators and DBS operators
to carry more digital programming services and to market those services, and to
allow consumers to access that content. And we called on the equipment
manufacturers and retailers to produce the devices that will allow consumers to
view digital programming.
He added that "We have used our offices to keep pressure on all
segments of the industry to find solutions to clearing DTV roadblocks. We are
actively and aggressively engaged in matters involving equipment compatibility,
copyright protections, and carriage obligations, just to name a few. Moreover,
we have used our power to mandate change when an industry could not -- or would
not -- come to a solution."
"There is no turning back and no retreat." said Powell. "At the FCC, we will lead guided by pragmatism, but
backed up by regulatory action that we will not hesitate to employ where
Federal Circuit Rules in Patent Infringement Case
10/22. The U.S.
Court of Appeals (FedCir)
issued its opinion [MS
Word] in Schumer
v. Laboratory Computer Systems,
vacating the District Court's judgment in a patent infringement case involving tablets.
Background. Alfred Schumer of Redmond, Washington holds
U.S. Patent No. 5,768,492 titled "Digitizer
interface". Digitizers are computer peripherals that translate a user’s hand
motions or instructions into digital coordinates for use by a computer system.
Laboratory Computer Systems (LCS) creates and distributes software drivers to be
used with various brands of digitizers distributed by third parties.
Wacom makes graphic tablets and interactive
pen displays; it is a distributor of digitizers. Wacom was a licensee of LCS software
District Court. Schumer filed a complaint in 1999 in the
U.S. District Court
(WDWash) against LCS alleging patent infringement. Wacom then filed a
complaint against Schumer seeking a declaratory judgment that its products did
not infringe the claims of the ’492 patent and that the asserted claims of the
’492 patent were invalid. The two suits were consolidated. The District Court
granted summary judgment to LCS and Wacom. It granted summary judgment of noninfringement
of claims 1-10; it also granted summary judgment of invalidity of claims 13 and
14 on the basis of anticipation under
35 U.S.C. § 102(b). Schumer appealed.
Appeals Court. The Appeals Court vacated and remanded. It wrote that "Summary judgment of noninfringement
of claims 1-10 should not have been granted because the district court erred in
construing the language of the claims. Summary judgment of invalidity of claims
13 and 14 should not have been granted because claim 13 was not shown to be
invalid by clear and convincing evidence, and dependent claim 14 was never
FCC Releases UWB Study
10/22. The Federal Communications Commission
(FCC) released a
report [110 pages in PDF] titled "Measured
Emissions Data For Use In Evaluating The Ultra-Wideband (UWB) Emissions Limits
in the Frequency Bands Used By The Global Positioning System". See also, FCC
public notice [3 pages in PDF].
UWB devices, which use very narrow pulses with very wide bandwidths, have
potential applications in both radar and communications technologies. Proponents
of its use have argued that UWB devices can use large portions of already
allocated spectrum with minimal or no interference to incumbent users.
Companies, such as Intel, have argued that UWB is a very promising technology
for enabling short distance, high data rate connections that can support new and
innovative applications. Incumbent spectrum users have opposed UWB.
On February 14, 2002 the FCC adopted its First Report and
Order in ET Docket No. 98-153 to amend Part 15 of the FCC Rules to permit the
marketing and operation of certain types of new products incorporating ultra wideband technology.
The FCC seeks comment on this latest report by November 22, 2002.
Comments should be filed in ET Docket No. 98-153.
The report was prepared by Stephen Jones of the
FCC's Office of Engineering and Technology.
He can be contacted at 301 362-2054 or SKJones@fcc.gov.
GAO Reports on Grants Funded by H1B Visa Fees
10/22. The General Accounting Office (GAO)
released a report [PDF]
titled "Hill Skill Training: Grants from H-1B Visa Fees Meet Specific Workforce
Needs, but at Varying Skill Levels".
Recent legislation raised the annual limits on the number of high skilled
foreign workers who may obtain H1B visas to work in the U.S. High tech companies
had argued that there was a shortage of U.S. workers. The Congress also required
employers to pay a $1,000 fee for every foreign worker for whom they applied for
an H1B visa. These funds were designated for training of U.S. workers for these
jobs. This GAO report examines these educational programs.
The report states that "Fifty-five percent
of the funds are provided to the Department of Labor for technical skill grants
to increase the supply of skilled workers in occupations identified as needing
more workers. Labor awards the skill grants to local workforce investment
boards, created under WIA to establish local workforce development policies,
thereby linking the skill grant program with the workforce system. The boards
use the funds to provide training to employed and unemployed people. The
National Science Foundation (NSF) receives 22 percent of the funds to distribute
as scholarship grants to post secondary schools that distribute the funds as
scholarships for low income students in computer science, engineering, and
mathematics degree programs. As of
July 1, 2002, about $197 million has been awarded through the skill grant
program; as of May 1, 2002, about $72 million has been awarded through the
scholarship grant program."
As for the Labor Department grants, the
GAO report found that "Information on participants and training outcomes is
limited because Labor has not collected consistent data on individual programs."
As for the NSF grants, the GAO report
found that "Finding students eligible for the scholarship grant program has
proven to be a challenge, as some schools have struggled to fill open slots".
The report was prepared for
Rep. James Barcia (D-MI) and
Rep. Lynn Rivers (D-MI).
DC Circuit Largely Affirms FCC's Massachusetts 271 Approval
10/22. The U.S.
Court of Appeals (DCCir) issued its
opinion in WorldCom
v. FCC, a
petition for review of the FCC's approval of Verizon's application to provide long
distance services in Massachusetts.
WorldCom, AT&T and others challenged the Federal
Communications Commission's (FCC) April 16 order approving Verizon's
271 application to provide in region interLATA services in the state of
Massachusetts. The petitioners argued that the FCC's conclusion that Verizon's
rates for unbundled network elements (UNEs) complied with the TELRIC standard
(total element long run incremental cost). The Appeals Court concluded that it
had already upheld the practices of the FCC in two prior challenges to § 271
approvals, Sprint v. FCC, 274 F.3d 549 (D.C. Cir. 2001), and AT&T v FCC,
220 F.3d 607 (D.C. Cir. 2000).
The Court also rejected petitioners' argument that Verizon failed to
satisfy checklist item No. 14 (47 U.S.C. §
271(c)(2)(B)(xiv)) because as of the date of its application, it was not
offering CLECs DSL and other advanced services at wholesale rates. Verizon
was in compliance by the time the FCC issued its approval. The Court rejected
this argument in an earlier opinion. However, the opinion, but not the mandate,
preceded the date of Verizon's application, and the FCC relied upon this
distinction. In its final analysis, the Court concluded that "no matter whether
the issue is a matter of standing, mootness or both, we are sure that the
complete want of effect in the real world deprives us of jurisdiction over the
intriguing question of how the distinction between opinion and mandate might
play out in this context."
However, the Appeals Court did remand one issue to the FCC. Petitioners
argued that the FCC failed to consider their claim that the ILEC's UNE rates
would create a price squeeze -- that is, prices for CLECs' inputs so high as to
largely disable them from competing profitably in the local market with the
ILEC, the supplier of those inputs. The Court wrote that "Because of the range
of TELRIC compliant UNE rates, a set of fully compliant rates might -- under
some analyses and policy judgments, not addressed by the Commission in this
record -- impede local competition enough to render a § 271 approval in
contravention of the ``public interest.´´ Accordingly, we
remand the case for further consideration in the light of" the Sprint case."
DOJ Recommends Approval of Qwest Long Distance
10/22. The Department of Justice's (DOJ)
Antitrust Division filed with the Federal
Communications Commission (FCC) its
evaluation [23 pages in PDF] of Qwest's
application under Section 271 to provide in region interLATA services in the
states of Colorado, Idaho, Iowa, Montana, Nebraska, North Dakota, Utah, Washington,
and Wyoming. The DOJ recommends approval.
Qwest previously withdrew two applications because of concerns
of regulators. In the present application, the DOJ concluded that "With respect
to most of the issues about which the Department previously had expressed
concern, Qwest’s re-filed application demonstrates improvement. The Department
reiterates its deference to the Commission's determination whether Qwest’s
pricing is appropriately cost based and whether Qwest complies with Section 272."
However, the DOJ also criticized Qwest for possibly withholding
information from regulators. It wrote that "finds troubling an affidavit filed
by AT&T in which a former Qwest employee declares that Qwest personnel
``diminish[ed] the visibility´´
of certain information to Commission staff who were visiting the Qwest CLEC
Coordination Center. The former employee states that a Mechanized Loop Test (``MLT´´)
was run routinely as part of the provisioning process for hot-cut loops but that
this fact was hidden from regulators. At that time, CLECs were requesting
pre-order access to Qwest's MLT capabilities in order to pre-qualify loops for
DSL service and also were expressing concerns that Qwest had collected MLT
information that it had not loaded into its Raw Loop Data Tool, to which CLECs
submit pre-qualification queries."
The DOJ stated that "The affidavit suggests that Qwest, in its eagerness to
protect its position, sought to limit the information available to regulatory
decision makers. Qwest has disputed this account ... The Department recommends that the
Commission assure itself that it has full and accurate information with regard
to this allegation before proceeding to address the remainder of the issues
raised by Qwest's re-filed application." (Footnotes omitted.)
This is the FCC's WC Docket No.
02-314. See also,
FCC Receives Comments Regarding CPNI
10/21. Monday, October 21 was the deadline to submit comments to the FCC
regarding its request to refresh its record regarding customer
proprietary network information (CPNI) implications when a carrier goes out
of business, sells all or part of its customer base, or seeks bankruptcy
protection. The FCC also sought comment on the Federal Bureau of Investigation's
(FBI) request that the FCC regulate foreign storage of CPNI. Telecom companies
submitted comments opposing new regulations.
In contrast, the Electronic Privacy Information Center
(EPIC) submitted a
comment [7 pages in PDF] urging new regulation. It stated that "Considering the
current wave of bankruptcies within the telecommunications industry, EPIC urges
the Commission to protect the privacy rights of American consumers by
implementing an opt-in approach towards telecommunications carriers' use of CPNI,
pursuant to section 222 of the Communications Act of 1996, when a carrier goes
out of business, or seeks to sell CPNI as an asset."
The FCC has also received substantially identical letters from individuals
stating, in part, that "I strongly urge you and the Commissioners to protect my
privacy by requiring phone companies to obtain my approval before they sell my
The Cellular Telecommunications Industry
Association (CTIA) submitted a
comment [16 pages in PDF]. It opposed the FBI proposal. It wrote that
"Section 222 does not require it and indeed permits transfer of CPNI, in the
United States or otherwise, for purposes of providing telecommunications
services. The FBI and other law enforcement agencies, contrary to their
assertions, will not be hindered in gaining access to such CPNI under existing
The CTIA also wrote that it "opposes further CPNI rules and restrictions
regarding transfer of CPNI as part of a business transaction such as a merger,
sale, acquisition, or in bankruptcy. Such rules are unnecessary because CPNI
does not lose its character upon such transfers and the Commission has adequate
enforcement powers to protect against improvident disclosures."
Nextel submitted a
comment [9 pages in PDF]. "First, regarding the
FBI’s suggestion for additional Commission regulation of foreign storage of and
access to CPNI, such regulation would not significantly improve law enforcement
capabilities. Yet, it would prevent companies from pursuing the most
cost effective business solutions to serving their customers. Geographic
boundaries have little if any relevance in today’s Internet world. The proposed
geographic limitations, while interfering with carriers’ efficient operation,
would add little protection against entities in cyberspace seeking unauthorized
Nextel also wrote that "with regard to the CPNI
implications when a carrier goes out of business, customers’ privacy interests
are fully protected by the existing CPNI rules, which would apply to any
acquiring carrier to the same extent as to the exiting carrier. The adoption of
additional CPNI rules would harm the public interest by imposing unnecessary
regulatory costs on the telecommunications industry, particularly the wireless
industry, while it is struggling for survival under precarious economic
Verizon likewise submitted a
comment [7 pages in PDF] opposing both regulation regarding foreign storage
and new regulations regarding carriers that are going out of business. It wrote
that "It is not necessary for the Commission to adopt any new regulations"
regarding CPNI or customer proprietary information.
Verizon also submitted a
Petition for Reconsideration of the Third Report and Order [26 pages in PDF]
in which it requested that the FCC "reconsider it order to make clear that all
state regulations of customer proprietary network information (``CPNI´´)
that are inconsistent with the federal CPNI rules, including any state rules
that adopt an opt-in requirement, are preempted."
In contrast, the Florida Public Service Commission submitted a
comment [5 pages in PDF] in which it argued that the states have a separate
authority to regulate CPNI, and that the FCC should not preempt this authority.
See also, USTA
comment [6 pages in PDF] and Qwest
comment [40 pages in PDF];
This is the FCC's Third Further Notice of Proposed Rulemaking in CC Docket
Nos. 96-115, 96-149 and 00-257. See, notice
in the Federal Register, September 20, 2002, Vol. 67, No. 183, at Pages
59236 - 59239.
Wednesday, October 23
12:00 NOON - 1:30 PM. The Heritage
Foundation will host a panel discussion titled "Pirates and
Posses: The Battle Over Digital Copyright". The speakers will be
Bruce Mehlman (Commerce Department's Technology
Administration), Gary Shapiro (Consumer
Electronics Association), Alec French (Minority Counsel, House Judiciary Committee's
Subcommittee on Courts, the Internet and Intellectual Property), James
Delong (Competitive Enterprise Institute), and James Gattuso (Heritage).
Location: 214 Massachusetts Ave NE.
Thursday, October 24
The Senate will meet at 10:30 AM in pro forma session only.
12:15 PM. The FCBA's Cable Practice
Committee will hold a brown bag lunch. The speaker will be Susan Eid, Legal
Advisor to FCC Chairman Michael Powell.
RSVP to Wendy Parish. Location: NCTA,
1724 Mass Ave., NW.
12:15 PM. The FCBA's Young Lawyers
Committee will hold a brown bag lunch. The topic will be "The Role of
Industry Associations in Advocacy at the FCC and Congress". The
speakers will include Mike Altschul (CTIA), Dan Brenner (NCTA), and others.
RSVP to rwallach @willkie.com.
Location: Willkie Farr & Gallagher, 1875 K St., NW, 2nd Floor.
3:00 PM. Jessica Litman (Wayne State University Law School) will present a
draft of a paper titled "Digital Networks in the Public Domain".
The lecture is sponsored by the George Washington University (GWU) Law
School's Dean Dinwooodey Center for Intellectual Property Studies. For more
information, contact Prof. Robert Brauneis at 202 994-6138 or by email. Location: GWU Law School,
Burns Building, 5th Floor, Faculty Conference Center, 720 20th St., NW.
3:30 PM. Gideon Parchomovsky will give a lecture titled "Toward an
Integrated Theory of Intellectual Property". For more information,
contact Prof. Julie Cohen at jec@law.
georgetown.edu. Location: Georgetown University Law Center, Faculty
Lounge, 600 New Jersey Ave., NW.
6:00 - 8:00 PM. The FCBA's will host an
Oktoberfest reception featuring the FCC's Bureau Chiefs.
Friday, October 25
8:00 AM - 3:15 PM. The National Science
Foundation's Advisory Committee for Computer and Information Science and
Engineering will hold a meeting. For more information, contact Gwen Blount
at 703 292-8900. See, notice
in Federal Register, October 8, 2002, Vol. 67, No. 195, at Page 62834.
Location: Hilton Arlington and Towers, Master Ballroom, 950 N. Stafford
Street, Arlington, VA.
10:00 AM - 12:30 PM and 2:00 - 4:00 PM. The
FTC and the DOJ's Antitrust
Division will hold the final workshops in their joint series titled
"Competition and Intellectual Property Law and Policy in the Knowledge
Based Economy" on October 25 and 30 and November 6.
The October 25 event is titled "Competition, Economic, and Business
Perspectives on Patent Quality and Institutional Issues: Competitive Concerns,
Prior Art, Post Grant Review, and Litigation".
Location: FTC, Room 432, 600 Pennsylvania Ave., NW.
Deadline for the DOJ's Antitrust
Division to release its evaluation of BellSouth's Section 271 application
with the FCC to provide in region interLATA service in the states of Florida
and Tennessee. This is WC Docket No. 02-307.
Monday, October 28
The Senate will meet at 10:30 AM in pro forma session only.
Tuesday, October 29
TIME? The Securities and Exchange Commission
(SEC) will hold a full day hearing on issues relating to the structure of the
U.S. equity securities markets. The SEC stated in a
release that the
topics will include "the collection, consolidation and dissemination of market
data through intermarket plans; broker dealers' duty of best execution and
corresponding marketplace rules relating to intermarket access, trade
throughs, and price protection; the role of national securities exchanges,
electronic communications networks (ECNs), and alternative trading systems;
and the self regulatory system". Location: SEC.
8:45 AM - 3:45 PM. The National Institute
of Standards and Technology's (NIST) Advanced Technology Program (ATP)
Advisory Committee will hold a partially closed meeting. The agenda includes a
review of ATP policy, organization, and budget, and an update from an
international community panel on technology programs. Pre-registration is
required to attend; contact Carolyn Peters by Thursday, October 24, at
carolyn.peters @nist.gov or 301
notice in Federal Register. Location: NIST, Administration Building,
Lecture Room B, Gaithersburg, MD.
12:15 PM. The FCBA's Common Carrier
Committee will host a brown bag lunch. The speaker will be Bill Maher, Chief
of the FCC's Wireline Competition
Bureau. Location: Willkie Farr & Gallagher, 1875 K Street, 2nd Floor, NY
Deadline for the DOJ's Antitrust
Division to release its evaluation of SBC's
Section 271 application with the FCC to provide in region
interLATA service in the state of California. This is WC Docket No. 02-306.
BIS Announces ISTAC Meeting
10/22. The Commerce Department's Bureau of
Industry and Security (formerly known as the Bureau of Export
Administration) announced that its Information Systems Technical Advisory
Committee (ISTAC) will meet on November 13 & 14. The ISTAC advises the BIS on
technical questions that affect the level of export controls applicable to
information systems equipment and technology.
The meeting will be partly open, and partly closed. The agenda
for the open portion of the meeting includes a presentation on China's high
performance computing market and a presentation on semiconductor manufacturing
trends. The agenda for the closed portion of the meeting is secret.
The meeting will be held at 9:00 AM each day in Room 3884, Hoover
Building, 14th Street between Pennsylvania and Constitution Avenues, NW. See,
notice in the Federal Register, October 22, 2002, Vol. 67, No. 204, at Page
|About Tech Law Journal
|Tech Law Journal publishes a free access web site and
subscription e-mail alert. The basic rate for a subscription
to the TLJ Daily E-Mail Alert is $250 per year. However, there
are discounts for entities with multiple subscribers. Free one
month trial subscriptions are available. Also, free
subscriptions are available for law students, journalists,
elected officials, and employees of the Congress, courts, and
executive branch, and state officials. The TLJ web site is
free access. However, copies of the TLJ Daily E-Mail Alert and
news items are not published in the web site until one month
after writing. See, subscription
Contact: 202-364-8882; E-mail.
P.O. Box 4851, Washington DC, 20008.
Copyright 1998 - 2002 David Carney, dba Tech Law Journal. All