The FCC agenda states that this is a "Review of the Section 251 Unbundling Obligations of Incumbent Local Exchange Carriers (CC Docket No. 01-338), Implementation of the Local Competition Provisions of the Telecommunications Act of 1996 (CC Docket No. 96-98), Deployment of Wireline Services Offering Advanced Telecommunications Capability (CC Docket No. 98-147), and Appropriate Framework for Broadband Access to the Internet over Wireline Facilities (CC Docket No. 02-33)."

It continues that the FCC "will consider a Report and Order concerning incumbent local exchange carriers' obligations to make elements of their networks available on an unbundled basis."

CC Docket No. 01-338, which is referenced in this agenda, is more commonly known at the Triennial Review. The FCC adopted the Notice of Proposed Rulemaking (NPRM) [62 pages in PDF] instituting this proceeding at its December 12, 2001 meeting. See also, December 12, 2001 release and notice in the Federal Register.

The FCC wrote on December 12, 2001 that unbundled network elements (UNEs) "are the portions of the phone networks that incumbent local exchange carriers (LECs) must make available to competing carriers seeking to provide telecommunications services. Recognizing that incumbent LECs control some bottleneck facilities, Congress adopted section 251 of the 1996 Act to overcome the obstacles posed by that control."

The FCC further wrote that "the FCC will examine the framework under which incumbent LECs must make UNEs available to competing carriers. The Commission's action seeks to ensure that its regulatory framework reflects recent technological advances and marketplace developments and to remain current and faithful to the pro-competitive, market opening provisions of the Telecommunications Act of 1996."

CC Docket 02-33, which is also referenced in the agenda, is commonly known as the Wireline Broadband NRPM. The FCC adopted the NPRM [58 pages in PDF] instituting this proceeding at its February 14, 2002 meeting. See also, notice in the Federal Register. This NPRM pertains to the appropriate regulatory framework for broadband access to the Internet over wireline facilities.

This NPRM states that "we examine the appropriate classification for wireline broadband Internet access service. As discussed more fully below, we tentatively conclude that, as a matter of statutory interpretation, the provision of wireline broadband Internet access service is an information service. In addition, we tentatively conclude that when an entity provides wireline broadband Internet access service over its own transmission facilities, this service, too, is an information service under the Act. In addition, we tentatively conclude that the transmission component of retail wireline broadband Internet access service provided over an entity’s own facilities is ``telecommunications´´ and not a ``telecommunications service.´´ We seek comment on these tentative conclusions and ask additional questions with regard to the proper classification of wireline broadband Internet access service."

The FCC will likely announce a few of the details of this Report and Order at the February 13 meeting. Typically, FCC staff reads a brief synopsis of the order, FCC Commissioners make very brief statements, and the item is approved by a vote. Then, Commissioners depart, and FCC staff hands out a short press release, but not the actual Report and Order. That usually is not released until at least a week later.

The FCC's agenda for the February 13 meeting lists two other items. One is a Memorandum Opinion and Order and Further Notice of Proposed Rulemaking in the FCC's proceeding regarding ultrawideband transmissions. The other is an order revising the FCC's rules regarding access for persons with disabilities to FCC programs and activities.

Background. Plaintiffs operated a web site that facilitated the trading of votes in the 2000 presidential election. The goal was to obtain more votes for Al Gore in swing states to help him become President, and to obtain more votes for Ralph Nader in states where the outcome was not in doubt to help him become eligible for federal financing in future elections. The web site used a software program to match up voters in different states with complementary preferences.

Defendant, Bill Jones, who was then the Secretary of State for California, sent a cease and desist letter in which he threatened to prosecute under California Elections Code sections 18521 and 18522 for brokering the exchange of votes.

Section 18521, for example, provides in part, that "A person shall not directly or through any other person receive, agree, or contract for, before, during or after an election, any ... valuable consideration ... for himself or any other person because he or any other person: (a) Voted, agreed to vote, refrained from voting, or agreed to refrain from voting for any particular person or measure. ... (d) Induced any other person to: ... (3) Vote or refrain from voting for any particular person or measure. Any person violating this section is punishable by imprisonment in the state prison for 16 months or two or three years."

District Court. Plaintiffs filed a complaint in U.S. District Court (CDCal) against Jones alleging that his actions denied them freedom of speech and association in violation of the First Amendment and 42 U.S.C. § 1983, and requesting declaratory and injunctive relief. They applied for a temporary restraining order enjoining Jones from taking any enforcement action against Plaintiffs in connection with the 2000 presidential election. The District Court denied the motion. George Bush won the election.

Plaintiffs then amended their complaint, alleging intent to operate a similar web site for the 2004 election. They additionally requested damages from Jones in his individual capacity, and a permanent injunction against Jones in his official capacity.

Jones moved to dismiss, raising issues of mootness (the 2000 election is over) and ripeness (the 2004 election is not here yet). He also moved to stay the case under the Pullman abstention doctrine. See, Railroad Commission v. Pullman, 312 U.S. 496 (1941)

The District Court rejected the mootness and ripeness arguments. It stayed the claims for declaratory and injunctive relief under the abstention doctrine, and dismissed the claims for damages under Rule 12(b)(6), FRCP.

Appeals Court. The Appeals Court reversed both the stay under the abstention doctrine, and the dismissal of the damages claim, and remanded to the District Court for further proceedings.

The Appeals Court wrote that "It is rarely appropriate for a federal court to abstain under Pullman in a First Amendment case, because there is a risk in First Amendment cases that the delay that results from abstention will itself chill the exercise of the rights that the plaintiffs seek to protect by suit. We conclude that the risk of this kind of First Amendment chill is present here, notwithstanding the fact that Plaintiffs' challenge to the threatened application of Elections Code sections 18521 and 18522 is an as-applied challenge. Because the factors required for Pullman abstention were not met in this case, the district court had no discretion to abstain."

The report argues that "it is time to bring the regulation of the alcohol industry into the 21st century by ending the legal protections for middlemen. To do this: Congress should clarify the respective state and federal powers controlling commerce in alcohol, namely that states cannot prohibit open competition any more than is necessary to regulate for temperance and taxation purposes."

The report adds that "Such legislation would enable successful court challenges of most if not all state anti-direct shipment laws, at rest laws, and franchise laws because many of these laws do not aim at achieving legitimate purposes of temperance and taxation, and there are less restrictive alternatives to those that do."

The report also recommends that "States should abolish mandates that legally require a wholesaling tier and other statutes that unnecessarily restrict the market, so that consumers and producers may benefit from greater choice, competition, and market access. The federal government should help states and industry streamline compliance procedures for the various registration and licensing requirements mandated by individual states."

The report was written by Brian Newkirk and Robert Atkinson.

The DARPA web site has described the TIA as a project that "will imagine, develop, apply, integrate, demonstrate and transition information technologies, components and prototype, closed-loop, information systems that will counter asymmetric threats by achieving total information awareness useful for preemption; national security warning; and national security decision making."

The members of the outside board will included Newton Minow (Northwestern University), Floyd Abrams (Cahill Gordon & Reindel), Zoe Baird (President of the Markle Foundation), Griffin Bell (King & Spalding), Gerhard Casper (Stanford University Law School), William Coleman (Chief Customer Advocate of BEA), Lloyd Cutler (Wilmer Cutler & Pickering).

Pate became acting AAG when former AAG Charles James resigned. President Bush has yet to name a replacement. Pate stated that "my principal job is to provide the Division continuity and support during a transition period, not to make bold policy pronouncements".

He discussed the US relationship with the EU on antitrust enforcement. One of the issues which he addressed was intellectual property issues. He stated that "Given that the working group model has proven successful in the merger context, we decided in the past year to begin using that framework in the civil non-merger context as well by launching an Intellectual Property Working Group with the EU. The group has already had two videoconferences -- including one on patent pooling -- with more sessions planned for this winter and spring. Through this group, talented government antitrust experts on each side of the Atlantic can learn from one another and come up with optimal approaches to many of the difficult issues that face enforcers in matters that involve both antitrust and intellectual property issues."

He also discussed the new International Competition Network. It has no location or office. Pate quipped that "It's easy to say that something can be run as a ``virtual´´ organization when you don't really know -- as we did not know at this time last year -- whether a new network will amount to anything useful. We certainly have learned over the past year that it is challenging to run a virtual organization solely by Internet, teleconference and videoconference ..."

He also addressed international cartel enforcement. He spoke to an American Bar Association group in New York City.

The bill states in its section on findings and purposes that "Class members often receive little or no benefit from class actions, and are sometimes harmed, such as where ... counsel are awarded large fees, while leaving class members with coupons or other awards of little or no value".

One of the provisions of the bill is that "The court may approve a proposed settlement under which the class members would receive noncash benefits or would otherwise be required to expend funds in order to obtain part or all of the proposed benefits only after a hearing to determine whether, and making a written finding that, the settlement is fair, reasonable, and adequate for class members."

The bill also prohibits any "proposed settlement that provides for the payment of greater sums to some class members than to others solely on the basis that the class members to whom the greater sums are to be paid are located in closer geographic proximity to the court."

The bill also prohibits any "proposed settlement that provides for the payment of a greater share of the award to a class representative serving on behalf of a class, on the basis of the formula for distribution to all other class members, than that awarded to the other class members." Sen. Grassley (at right) elaborated on this section in a statement in the Senate. He said that "our bill disallows bounty payments to lead plaintiffs so lawyers looking for victims can't promise them unwarranted payoffs to be their excuse for filing suit." Cong. Record, Feb. 4, 2003, at S1873-4.

The bill would also provide additional grounds for removing class action lawsuits from state to federal court. The bill would also require that notice be given to state attorneys general of any proposed settlements affecting residents of their states. It would also give them an opportunity to object.

The original cosponsors of the bill are Sen. Thomas Carper (D-DE), Sen. Lincoln Chafee (R-RI), Sen. Orrin Hatch (R-UT), Sen. Herb Kohl (D-WI), Sen. Richard Lugar (R-IN), Sen. Zell Miller (D-GA), and Sen. Arlen Specter (R-PA).

The bill was referred to the Senate Judiciary Committee. Sen. Hatch is the Chairman. Sen. Grassley is a senior member. Sens. Specter and Kohl are also members.

It further offers two items of advice: "Be prepared to do without services you normally depend on that could be disrupted -- electricity, telephone, natural gas, gasoline pumps, cash registers, ATM machines, and internet transactions." Also: "Be prepared to respond to official instructions if a cyber attack triggers other hazards, for example, general evacuation, evacuation to shelter, or shelter-in-place, because of hazardous materials releases, nuclear power plant incident, dam or flood control system failures."

TO BE DECIDED WITHOUT ORAL ARGUMENT. 9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in Primosphere Ltd v. FCC, Nos. 01-1526 and 1527. Judges Henderson, Rogers and Silberman will preside. Location: 333 Constitution Ave., NW.

3:00 - 5:00 PM. The State Department's International Telecommunication Advisory Committee (ITAC) will meet regarding the World Summit on the Information Society (WSIS), scheduled to take place in December of 2003. See, notice in the Federal Register, February 4, 2003, Vol. 68, No. 23, at Pages 5689-5690. Location: National Academy of Sciences, 2100 C St. NW.

POSTPONED TO FEBRUARY 28. Deadline to submit reply comments to the Federal Communications Commission's (FCC) regarding the Report [73 pages in PDF] of the FCC Spectrum Policy Task Force (SPTF). The report recommends that "spectrum policy must evolve towards more flexible and market oriented regulatory models." See, original notice [PDF] and notice of extension [PDF].

Deadline to submit reply comments to the Federal Communications Commission (FCC) regarding the Tier III Coalition's petition to forbear, up to December 31, 2005, from enforcing the E911 accuracy and reliability standards set forth in § 20.18(h) of the FCC’s Rules with respect to Commercial Mobile Radio Service (CMRS) provided by Tier III wireless carriers. See, FCC notice [PDF]. This is WT Docket No. 02-377.

Deadline to submit comments to the The National Telecommunications and Information Administration (NTIA) regarding the health and life insurance cancellation notices exception to the Electronic Signatures in Global and National Commerce (E-SIGN) Act. The Act provides, at §101, for the acceptance of electronic signatures in interstate commerce, with certain enumerated exceptions. §103 of the Act provides that the provisions of section 101 shall not apply to "the cancellation or termination of health insurance or benefits or life insurance benefits (excluding annuities)". (Parentheses in original.) The Act also requires the NTIA to review, evaluate and report to Congress on each of the exceptions. The E-SIGN Act is codified at 15 U.S.C. § 7001, et seq. The exceptions are codified at 15 U.S.C. § 7003. See, NTIA notice.

Extended deadline to submit applications to the Federal Communications Commission (FCC) for membership on the FCC's Consumer Advisory Committee. For more information, contact Scott Marshall at 202 418-2809 smarshal@fcc.gov. The deadline had been January 31. On January 31 the FCC extended the deadline.

9:30 AM. The Commerce Department's Bureau of Industry and Security's (BIS) Sensors and Instrumentation Technical Advisory Committee will meet. Part of the meeting will be closed to the public. See, notice in the Federal Register, January 17, 2003, Vol. 68, No.12, at Page 2499. Location: Herbert Hoover Building, Room 3884, 14th Street between Constitution and Pennsylvania Avenues, NW.

10:00 AM. Federal Reserve Board Chairman Alan Greenspan will testify before the Senate Banking Committee on monetary policy. Location: Room 216, Hart Building.

5:00 PM. The Federal Communications Bar Association's (FCBA) Diversity Committee and Young Lawyers Committee will host a Law School Outreach Program at George Washington University for law students interested in practicing communications law.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Notice of Inquiry (NOI) regarding competition in the Commercial Mobile Services (CMRS) industry. The FCC seeks data and information for its Eighth Annual Report and Analysis of Competitive Market Conditions with Respect to Commercial Mobile Services. This is WT Docket No. 02-379. See, notice in the Federal Register, January 7, 2003, Vol. 68, No. 4, at Pages 730 - 740. For more information, contact Chelsea Fallon at 202 418-7991.

Lincoln's Birthday.

9:30 AM. The Senate Judiciary Committee will hold a hearing on judicial nominations. Location: Room 226, Dirksen Building.

10:00 AM. Federal Reserve Board Chairman Alan Greenspan will testify before the House Financial Services Committee on monetary policy and the state of the economy. Location: Room 2128, Rayburn Building.

10:00 AM to 12:00 NOON. The Federal Communications Commission's (FCC) Office of Engineering and Technology (OET) will host a tutorial titled "Feature Detection and Listen Before Talk Systems", which have possible applications for unlicensed systems. John Betz of the Mitre Corporation will speak. See, notice. Location: FCC, Commission Meeting Room (TW-C305), 445 12th Street SW.

12:00 PM (approximate time). The Senate Finance Committee will hold a hearing on several nominations, including that of Charlotte Lane to be a member of the U.S. International Trade Commission. This hearing will commence immediately after the conclusion of the 9:30 AM Committee hearing on proposals for economic growth. See, notice [PDF]. Location: Room 215, Dirksen Building.

1:00 - 5:00 PM. The National Telecommunications and Information Administration (NTIA) will host an event titled "Voice Over Internet Protocol (VoIP) Roundtable". The NTIA stated in a notice that the event will address VoIP "and the convergence of the Internet and the public switched telephone network. The roundtable will include an overview of VoIP technology, including a brief demonstration of the Commerce Department's new VoIP telephone system." There will also be two panel discussions. See, agenda. The event will be webcast. Location: Department of Commerce, 1401 Constitution Avenue, NW, Room 4830.

5:00 - 7:00 PM. The Congressional Internet Caucus will hold its "6th Annual Kickoff Reception & Technology Fair". The schedule includes brief statements by the Internet Caucus Chairmen, Sen. Conrad Burns (R-MT), Sen. Patrick Leahy (D-VT), Rep. Bob Goodlatte (R-VA), and Rep. Rick Boucher (D-VA), and by Timothy Muris, Chairman of the Federal Trade Commission (FTC) and Howard Schmidt, Acting Chairman of the President’s Critical Infrastructure Security Board. There will also be technology demonstrations by Advanced Biometric Systems, E-Gov OS, Full Audio (music downloads), MovieLink, NTT DoCoMo (3G), Proxim (WiFi), University of Virginia (telemedicine), and Xybernaut. Location: Room 902, Hart Senate Office Building.

9:00 AM - 2:00 PM. The American Enterprise Institute (AEI) will host a conference titled "Tax, Trade, and Cowboy Capitalism in the United States and Europe". Rep. Bill Thomas (R-CA), Chairman of the House Ways and Means Committee, will give a keynote address at 9:00 AM. There will be three panel discussions. Finally, Sen. Max Baucus (D-MT), the ranking Democrat on the Senate Finance Committee, will give the luncheon address at 1:00 PM. Location: AEI, 1150 Seventeenth St., NW.

9:30 AM. The Federal Communications Commission (FCC) will hold a meeting. See, agenda. Location: FCC, 445 12th Street, SW, Room TW-C05 (Commission Meeting Room).

2:30 PM. The Senate Commerce Committee will hold a hearing on "infrastructure needs of minority serving institutions". See, S 196, the Digital & Wireless Network Technology Program Act of 2003, a bill to create a grant program for minority serving institutions, sponsored by Sen. George Allen (R-VA). Location: Room 253, Russell Building.

3:00 PM. The House Ways and Means Committee's Subcommittee on Oversight will hold a hearing titled "Free Electronic Filing and National Taxpayer Advocate Annual Report". Location: Room 1100, Longworth Building.

6:00-8:00 PM. The FCBA will host a reception for Federal Communications Commission (FCC) Commissioner Jonathan Adelstein. Tickets to attend must be purchased by February 10. See, purchase form. Location: Mayflower Hotel, Grand Ballroom, 1127 Connecticut Ave., NW.

Deadline to submit comments to the U.S. Court of Appeals for the Ninth Circuit regarding the reappointment of Judge Arthur Weissbrodt, U.S. Bankruptcy Judge for the Northern District of California, San Jose Division. His current term expires on December 2, 2003. See, notice [PDF].

12:00 NOON. Deadline to submit comments to the Office of the U.S. Trade Representative (USTR) regarding countries that deny adequate and effective protection of intellectual property rights or deny fair and equitable market access to U.S. persons who rely on intellectual property protection. The USTR is required by Section 182 of the Trade Act of 1974 to make designations, commonly referred to as Special 301 designations, of countries that deny adequate protection, or market access, for IPR. See, 19 U.S.C. § 2242. See also, notice in the Federal Register, December 30, 2002, Vol. 67, No. 250, at Pages 79683 - 79684.

2/7. John Snow was sworn in as Secretary of the Treasury. See, statement by Snow at swearing in ceremony, and statement by President Bush.

2/3. Joseph Mitchell was sentenced in U.S. District Court (NDCal) to 46 months in prison for trafficking in counterfeit labels for copies of computer programs in violation of 18 U.S.C. § 2318. The U.S. Attorneys Office (USAO) stated in a release that Mitchell sold infringing copies of Autodesk and other computer aided design (CAD) software through eBay, Yahoo, Up4sale, Ubid, and Lycos. He also used counterfeit labels. See also, CCIPS release.

2/3. William Fitzgerald plead guilty in U.S. District Court (EDVa) to one count of criminal copyright infringement in violation of 17 U.S.C. § 506(a)(2) and 18 U.S.C. § 2319(c)(1) in connection with his distribution of pirated software through a web site. He made available for download, but did not sell, copyrighted applications made by Adobe, Autodesk, Macromedia, and Microsoft. See, CCIPS release, USAO release [PDF], USAO statement of facts [PDF], and plea agreement [14 pages in PDF].

2/7. The Federal Communications Commission (FCC) released a notice [PDF] regarding the status of its request for comments pertaining to the report [PDF] of its Spectrum Policy Task Force (SPTF). The notice states that "On November 15, 2002, the Commission issued a Public Notice, seeking comment on the Spectrum Policy Task Force Report. Pursuant to the provisions of 47 C.F.R. §§ 1.1200(a) and 1.1204(b)(1) of the Commission's rules, this proceeding is deemed an exempt proceeding, comparable to a notice of inquiry proceeding. Ex parte presentations to or from Commission decision-making personnel are permissible and need not be disclosed. For further information, contact Fred Thomas, at 202-418-7783 (SPTF) or SPTFINFO@FCC.GOV. ET Docket No. 02-135." (Footnote omitted.)

2/7. An organization named the Center for Public Integrity (CPI) published in its website a huge file [12 MB PDF scan] which the CPI states is a draft bill prepared by the Department of Justice titled the "Domestic Security Enhancement Act of 2003".

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.

See, Letter from the Publisher, which summarizes the new practices and procedures.

See, Subscription Information page for price schedule, methods of payment, and related matters.

See, Memorandum regarding "E-Mail Monitoring".

See, Memorandum regarding "Disclosure of Information to Third Parties".

See, Memorandum to law students explaining why free subscriptions for law students will end after the January 17 issue.

See, Memorandum regarding "Termination of state officials' subscriptions" explaining why free subscriptions for state government officials will end after the January 17 issue.

See, Subscription Form and Contract (for firms, companies, groups, and other entities), or the shorter Subscription 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 Privacy Policy.