|Senate Organizational News
|1/9. As expected, on January 7, Sen.
Bill Frist (R-TN) was formally selected Senate Majority Leader, and
Sen. Ted Stevens (R-AK) was elected
President Pro Tempore of the Senate.
Sen. Trent Lott (R-MS), who had been the Senate Majority Leader
until the Democratic take over in 2001, will be the Chairman of the
Administration Committee. This is not one of the important Committees; the
most significant item within its jurisdiction is election law. However,
he will also continue as a member of the
Senate Commerce Committee. He will chair its
Aviation Subcommittee. He is also a member of the
Senate Finance Committee.
Commerce Committee. The change of majority control of the Senate may
have a significant effect on technology related policy areas that fall within the
jurisdiction of the
John McCain (R-AZ) will resume his chairmanship of the Committee, and
Sen. Ernest Hollings
(D-SC) will once again be the ranking
Democrat. Sen. Conrad Burns (R-MT) will
again chair the Communications Subcommittee, replacing Sen. Hollings.
Sen. Hollings (at right) has been the Senate's
leading opponent of the Tauzin Dingell
bill, and any other legislation to provide regulatory relief to the Bell
companies. He has also sought to restrain FCC Chairman
Michael Powell's market
oriented approach to regulation.
Sen. Hollings is also the sponsor of
S 2048, the Consumer Broadband and Digital Television Promotion Act, a bill
to mandate copy protection technology. He is also a cosponsor of
Sen. Joe Biden's (D-DE) bill,
S 2395, the
Anticounterfeiting Amendments of 2002.
Newly elected Sen. John Sununu (R-NH)
has been appointed to the Committee.
Two Democrats who were on the Commerce Committee in the 107th Congress lost
their re-election bids. Former Sen. Jean Carnahan (D-MO) lost to
Sen. Jim Talent (R-MO). Former Sen. Max
Cleland (D-GA) lost to Sen. Saxby
Chambliss (R-GA). One Democrat has yet to be named to the Commerce Committee
for the 108th Congress.
Judiciary Committee. The change of control of the Senate will have
major consequences for the output of the
Senate Judiciary Committee. However, these
changes will primarily be in the confirmation of judicial appointees and social
policy. In contrast, Democrats and Republicans on the Committee have not
differed sharply on intellectual property or antitrust issues.
Sen. Orrin Hatch (R-UT) will once again chair the
Sen. Patrick Leahy (D0-VT) will be ranking Democrat.
Sen. Sam Brownback (R-KS) who was
a member of the Committee in the 107th Congress, is not on the list of members
for the 108th Congress. He was a cosponsor in the 107th Congress of
S 2031, the
Intellectual Property Protection Restoration Act of 2002. This is the latest
version of Sen. Leahy's proposal to stop states from evading liability for
infringing intellectual property rights by asserting 11th Amendment immunity.
Former Sen. Robert Torricelli (D-NJ), who was a member of the Committee, has
retired. Newly elected Sen. John Sununu (R-NH)
has been appointed to the Committee.
Finance Committee. The Chairmanship of the
Senate Finance Committee will
switch back from Sen. Max Baucus (D-MT),
to Sen. Charles Grassley (R-IA).
However, on technology related issues that fall within the jurisdiction of the
Committee, the two have not diverged. Both, for example, worked for passage of
trade promotion authority legislation.
There is considerable turnover in the Committee's membership. Three
Republicans left the Committee. Former Sen. Frank Murkowski (R-AK) was elected
Governor of Alaska, and resigned.
Former Sen. Phil Gramm (R-TX) and former Sen.
Fred Thompson (R-TN) both retired. Four new Republicans have been named to the
Committee: Sen. Rick Santorum (R-PA),
Sen. Bill Frist (R-TN),
Sen. Gordon Smith
(R-OR), and Sen. Jim Bunning (R-KY).
Former Sen. Robert Torricelli (D-NJ), who was a member of the Committee, has
retired. No more
Democrats have been added to the Committee for the 108th Congress.
Other Committees. Sen. Stevens will once again be Chairman of the
Senate Appropriations Committee,
while Sen. Robert Byrd (D-WVa) will revert
to ranking Democrat.
Sen. Richard Shelby (R-AL) will be
the Chairman of the Senate Banking
Sen. Paul Sarbanes
(D-MD). The previous Republican Chairman, former Sen. Phil Gramm (R-TX), retired. This
Committee has jurisdiction over export control laws.
Sen. Mike Enzi (R-WY), a member of the
Committee, won re-election in November. He has already announced that he will
reintroduce legislation to modernize export control laws. See,
S 149 (107th
Congress), the Export Administration Act of 2001.
Sen. Pete Domenici (R-NM), who
had been Chairman of the Senate Budget
Committee, will be the new Chairman of the Senate Energy and Natural
Sen. Don Nickles (R-OK) will be the
Chairman of the Senate Budget Committee.
|Rep. Cox and Sen. Wyden Introduce
Bill to Make Permanent Net Tax Ban
|1/7. Sen. Ron Wyden (D-OR) and
Rep. Chris Cox (R-CA) introduced companion
bills in the Senate and House to make permanent the moratorium first enacted in
the Internet Tax Freedom Act.
The bill is titled the "Internet Tax Nondiscrimination Act". It would make
permanent the current moratorium on Internet access taxes, and
multiple and discriminatory taxes on Internet commerce. It would amend Section 1101 of
the Internet Tax Freedom Act, which is codified at 47 U.S.C. 151 note.
The original Internet Tax Freedom Act, which was passed as part of a larger
omnibus bill in late 1998, contained a three year moratorium. It expired on
October 20, 2000. The 107th Congress passed
also titled the Internet Tax Nondiscrimination Act, which extended the moratorium
until November 1, 2003. It too was sponsored by Rep. Cox, while Sen. Wyden sponsored a
companion bill in the Senate.
In prior Congressional debates, opponents have argued that the Internet tax
moratorium is harming the ability of state and local taxing authorities to
finance schools, police, and fire protection. They have also argued that any
legislation should address state
collection of sales and use taxes, which is not affected by the moratorium.
Quill v. North
Dakota, 504 U.S. 298 (1992), provides that state and local taxing
authorities are barred under the Commerce Clause from requiring remote sellers
without a substantial nexus to the taxing jurisdiction to collect sales taxes
for sales to persons in the jurisdiction. However, the Court added that Congress
may extend such authority. Congress has passed no legislation pertaining to
sales and use taxes. However, several bills were introduced in the 107th Congress
that would have provided this authority. See, for example,
sponsored by Rep. Ernest Istook
(R-OK), and S
512, sponsored by Sen. Byron Dorgan
Wyden (at right) spoke in the Senate on January 7, 2003 regarding his bill. He
said that "predictions that the Internet Tax Freedom Act would topple Western
Civilization have not come to pass. Since the moratorium on taxation of
out of State, online sales was first enacted in October 1998, not a single
community, county or state has come forward to prove it is being injured by its
inability to impose discriminatory taxes on electronic commerce. There is simply
no evidence that States have lost revenue by technology driven commerce."
He added that "A number of States seem to be arguing that their economic
future is tied to taxing technology entrepreneurs located thousands of miles
away with no physical presence in their jurisdiction. I don't share this view."
Sen. Wyden also commented on the Quill case. He stated that "Congress will
soon be asked again by the Streamlined Sales Tax Project States to take the
political heat for new sales taxes. The U.S. Senate has voted three times in
recent years on whether to overturn Quill to require remote sellers with no
nexus to serve the States as their tax collectors. Every time the Senate has
rejected the notion. On January 19, 1995, the Senate voted 73-25 to table the
amendment; on October 2, 1998, the Senate voted 66-29 to table the amendment;
and most recently, on November 15, 2001, the Senate voted 57-43 to table the
|People and Appointments
|1/9. President Bush announced his intent to nominate
Christopher Henry to be
Deputy Under Secretary of Defense for Policy. He is currently the
Corporate VP for Strategic Assessment and Development at
Applications International Corporation (SAIC). Before that, he was a
Senior Fellow at the Center for Strategic and
International Studies (CSIS),
where he worked on the "Information-based Warfare initiative" and
the "Conflict in the Digital Age Project." See,
1/9. President Bush nominated seven persons to be members of the
Science Foundation's (NSF) National Science
Board: Barry Barish, Steven Beering,
Kenneth Ford, Daniel Hastings, Elizabeth Hoffman, Douglas
Randall, and Jo Anne Vasquez. See,
House release. Back on October 17, 2002, President Bush announced his intent
to nominate eight persons to be member of this Board. Elizabeth Hoffman was not
on the 2002 list. In addition, that list also included the names of Ray Bowen
and Delores Etter, neither of whom is on the January 9 list of actual nominees. See
House release of October 17.
1/9. President Bush nominated Charlotte Lane and Daniel Pearson
to be members of the U.S.
International Trade Commission (USITC). See,
1/9. President Bush nominated Michael Toner and Ellen Weintraub
to be members of the Federal
Election Commission (FEC). Weintraub received a recess appointment late last
1/9. President Bush announced his intent to nominate Paul McHale to be
Assistant Secretary of Defense for Homeland Defense. McHale was a member of the
House of Representatives from 1993 through 1999. He is currently VP of
Tallman, Hudders and Sorrentino. See,
Tech Law Journal is instituting several new practices and procedures with the
New Year. All of these changes have one central purpose -- protecting the rights
of the author, David Carney.
The Tech Law Journal web site and the Tech Law Journal Daily E-Mail Alert
(TLJ Alert) are both authored and published by David Carney. This is a business.
The sole source of revenue for this business is subscription payments for the
TLJ Alert. Yet, it is currently being widely infringed.
This is undermining the financial viability of the business.
from the Publisher,
which summarizes the new practices and procedures.
Subscription Information page for price schedule, methods of payment, and
regarding "E-Mail Monitoring".
regarding "Disclosure of Information to Third Parties".
to law students explaining why free subscriptions for law students will end
after the January 17 issue.
of state officials' subscriptions" explaining why free subscriptions for
state government officials will end after the January 17 issue.
Form and Contract (for
firms, companies, groups, and other entities), or the shorter
Form and Contract (for
persons subscribing individually). These contracts are for new paying
subscribers, and paying subscribers renewing their
subscriptions. Persons receiving free subscriptions (journalists
and government officials) should not sign a contract. Paying
subscribers whose subscription term has not expired should not
sign a contract, until their existing subscription term expires
and they resubscribe.
And finally, see revised
|1/9. 24/7 Real Media, Inc. and
ValueClick, Inc. announced that they have "amicably settled" a patent lawsuit
U.S. Patent No. 6,026,368,
titled "On-line interactive system and method for providing content and
advertising information to a targeted set of viewers". 24/7 filed a complaint in
District Court (SDNY) last
against ValueClick and Mediaplex. The parties announced that 24/7 will license
its patent to ValueClick and Mediaplex "in exchange for a payment", but that
"All terms of the agreement are confidential." See,
12/20. The Federal Communications Commission
(FCC) issued an
Order adopting a Consent Decree between the FCC and NOS Communications (NOS)
and Affinity Network Inc. (ANI) regarding consumer complaints alleging that NOS and
ANI engaged in the deceptive marketing of their interstate communication services by failing to
disclose clearly and conspicuously material facts regarding their call unit
pricing methodology and promotional plan offerings. The Order provides that "The
Companies will make a voluntary contribution (not a fine or penalty) to the
United States Treasury in the amount of $1 million dollars ($1,000,000) ..."
(Parentheses in original.) See also, FCC
1/9. The Progress and Freedom Foundation (PFF)
released a report [23
pages in PDF]
titled "The FCC and Telecom Recovery: A Scorecard for Evaluating the New Rules".
The report, which was written by the PFF's Randall May, argues, among other things, that
"Unbundling And Sharing Should Not Be Required For Newly Installed Fiber Or
Other Non-Copper Facilities" and "Regardless Of Technology Platform, Broadband
Services Should Not Be Subject To Unbundling and Sharing Requirements Or
Computer-II-Type Separation Requirements".
1/9. The Competitive Telecommunications
Association (CompTel) submitted a
[huge MS Word file] to the Office of U.S. Trade
Representative (USTR) for its annual Section 1377
U.S.C. § 3106) review of the operation and effectiveness of all U.S. trade
agreements regarding telecommunications products and services. CompTel states that it urges the USTR "to work aggressively with the Governments
of Australia, Brazil, China, France, Germany, India, Italy, Japan, Mexico, The
Netherlands, Singapore, South Africa, Switzerland, and Taiwan to open their
markets for competition and to ensure fair and non-discriminatory market
conditions in accordance with their respective international trade commitments."
|Friday, January 10
|12:15 PM. The Federal Communications Bar
Association's (FCBA) Wireless Telecommunications Committee will host a
luncheon. The topic will be "What's Up for the Coming Year in the Auctions &
Industry Analysis, Public Safety & Private Wireless, Commercial Wireless &
Policy Divisions". The speakers will be Division Chiefs at the FCC's Wireless
Telecommunications Bureau Division. The price to attend is $15. RSVP to Wendy
Parish at email@example.com. Location:
Austin, 1501 K St., NW, Confr. Rm. 6E.
|Monday, January 13
|The Supreme Court will return from the recess that it began on December
11:00 AM - 1:00 PM. The Heritage
Foundation will host a panel discussion
titled "Harnessing Information Technology to Improve Homeland Security".
The speakers include James Gilmore (Chairman, Advisory Panel to Assess
Domestic Response Capabilities for Terrorism Involving Weapons of Mass
Destruction), Lee Holcomb (Office of Homeland Security), Tom Richey (Director
of Homeland Security, Microsoft), Tom Gann (VP & GM, Siebel Systems), and
Peter Brookes (Heritage). See,
Heritage, 214 Massachusetts Ave NE.
|Tuesday, January 14
|9:30 AM. The Senate Commerce
Committee will hold a hearing titled the "State of the Competition in
the Telecom Industry". Media contact: Andy Davis (Hollings) at 202
224-6654. Location: Room 253, Russell Building.
The U.S. Court of Appeals (DCCir)
will hear oral argument in Peninsula Communications v. FCC, No.
01-1273. Petitioner is a radio broadcaster operating on the Kenai Peninsula in
south central Alaska. Judges Henderson, Randolph and Garland will preside.
Location: 333 Constitution Ave., NW.
Deadline to submit comments to the USPTO
to assist it in writing a report to the Congress regarding technological
protection systems for digitized copyrighted works and to prevent
infringement. This report is required by the Technology, Education and
Copyright Harmonization Act of 2002 (TEACH). See,
notice in the Federal Register, December 9, 2002, Vol. 67, No. 236, at
Pages 72920 - 72921. For more information, contact Michael Shapiro at 703
305-9300 or firstname.lastname@example.org.
|Wednesday, January 15
|9:30 AM. The Federal Communications
Commission (FCC) will hold a meeting. Location: FCC, 445 12th Street, SW,
Room TW-C05 (Commission Meeting Room).
Deadline to submit comments to the NIST
regarding it plans to disseminate new data regarding condensed phase infrared
spectra through the Internet. See,
notice in the Federal Register, December 16, 2002, Vol. 67, No. 241, at
|Thursday, January 16
|12:15 PM. The FCBA's
Cable Practice Committee will host a brown bag lunch. The topic will be "Engineering
Issues". The speakers will be John Wong and Michael Lance of FCC's Media
Bureau. For more information, contact Lisa Cordell at 202 939-7900. RSVP to
Wendy Parish at email@example.com. Location:
NCTA, 1724 Massachusetts Ave., NW.
12:15 PM. The FCBA's
Young Lawyers Committee will host a brown bag lunch. The topic will be
planning for the new year. For more information, contact Yaron Dori at
firstname.lastname@example.org or Ryan Wallach at
Hogan & Hartson, 555 13th St., NW, Confr. Rm. 9E-407.
The FCBA's Diversity Committee
and Young Lawyers Committee will
host a series of Law School Outreach Programs for law students interested in
practicing communications law at Washington DC area law schools.
The event at American University will be held at 4:30 PM. The event at Catholic
University will be a 6:00 PM. The event at
George Mason University will be at 4:45 PM. The event at Georgetown University
Law Center will be at 5:30 PM. The event at Howard University will be at 4:30
|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 subscribers with multiple recipients. Free one
month trial subscriptions are available. Also, free
subscriptions are available for journalists,
federal elected officials, and employees of the Congress, courts, and
executive branch. The TLJ web site is
free access. However, copies of the TLJ Daily E-Mail Alert 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 - 2003 David Carney, dba Tech Law Journal. All