|Rogovin Named FCC General Counsel
|2/7. Jane Mago has been replaced by
John Rogovin as General Counsel of the
Federal Communications Commission (FCC).
Mago has been named to the newly created position of Chief of the newly created
Office of Strategic Planning and Policy Analysis (OSPPA). See,
Prior to being named FCC Deputy General Counsel in May of 2001, Rogovin was a
partner in the telecommunications group in the Washington DC office of the law
firm of O'Melvany & Myers. Prior to that, he
was a Deputy Assistant Attorney General in the Civil Division of the Reno
Justice Department, where he supervised the Federal Programs Branch. Among the
functions of the Federal Programs Branch is to assist and represent federal
government departments that do not comply with the
Freedom of Information
Act (FOIA). Rogovin was also lead counsel in AAPS v. Hillary Clinton,
in which he defended the secret proceedings of Hillary Clinton's Health Care
Task Force. And previously, he was a law clerk to
Laurence Silberman, who is now a senior judge of the
U.S. Court of Appeals (DCCir), which
hears most appeals of FCC orders.
Mago has been with the FCC since 1978. She was named General Counsel in May
of 2001. Before that, she had been acting General Counsel since the departure
of Bill Kennard's General Counsel, Chris Wright, in January of 2001. Prior to
that she was a Deputy Chief of the Enforcement
Bureau. She has held numerous other positions at the FCC,
including Senior Legal Advisor to Commissioner Powell. Mago is married to
Robert Blau, vice president of federal, executive and regulatory affairs for
The FCC already has an Office of Plans and
Policy (OPP). The FCC stated in another
[PDF] that "Robert Pepper, formerly Chief of the Office of Plans and Policy,
will be part of the new office but report directly to Chairman Powell in a new
Commission position of Chief, Policy Development."
The FCC also announced that Kathleen Ham will be named
Deputy Chief, and Maureen McLaughlin will be named Chief of Staff, of the new (OSPPA).
Ham is currently Deputy Chief of the FCC's
Wireless Telecommunications Bureau (WTB).
Before going to work for the FCC in 1990, she worked for the law firm of
Gump. McLaughlin is currently Senior Counsel for Law and Policy in the
Office of General Counsel where she is involved in wireless telecommunications
and spectrum management issues. She previously worked as Senior
Counsel (Republican) to the Senate Commerce
Committee's Communications Subcommittee.
|European Commission Proposes To Create A
Cyber Security Agency
proposed a regulation that would create an agency for cyber security.
Erkki Liikanen, European Commissioner for Enterprise and
in which he stated that "We propose to establish a European Network and
Information Security Agency to build on national efforts to enhance network and
information security and to increase the ability of Member States and EU
Institutions to prevent and respond to major network and information security
problems." See also, EU
right) continued that "The Agency shall be able to provide assistance in the application of EU
measures relating to network and information security. The assistance it
provides shall help ensure interoperability of information security functions in
networks and information systems, at the same time contributing to the
functioning of the Internal Market. The Agency will ultimately serve as a centre of competence where both Member
States and EU Institutions can seek advice on matters relating to security. This
expertise provided for by the Agency will play a key role for the security of
Europe's digital economy and the development of the information society in
He also stated that "The activities of the Agency will consist in advisory and co-ordinating
functions, where data on information security is collected and analysed. Today
both public and private organisations with different objectives gather data on
IT-incidents and other data relevant to information security. There is, however,
no central entity at European level that collects and analyses such data to
support the EU policy work in that area, whilst at the same time providing
added-value to national initiatives."
|Ashcroft Addresses Information and Law
|2/10. Attorney General John
Ashcroft gave a
to the Council on Foreign Relations. He spoke in broad terms about law
enforcement agencies' collecting and sharing of information to prevent
He stated that "I have said often that in this global war on terror, the best
friend of prevention is information, and the best friends of information are
cooperation, coordination and collaboration. Nations that stand on the side of
the rule of law have embraced these principles, understanding also that we are
bound to encounter occasional difficulties and temporary glitches as we embark
on a new quest for international security."
He continued that "In the past, our focus has been on traditional law enforcement --
prosecution. Prosecution is retrospective; it re-creates a past event. It is
like putting together a jigsaw puzzle with the benefit of the picture on the box
top. Our new, international goal of terrorism prevention, on the other hand,
involves anticipation and imagination about emerging scenarios, the puzzle
pieces of which have yet to come into alignment. Together, our nations are
finding new ways to anticipate these dangerous scenarios and to identify,
intercept and disrupt them before they become tragic terrorist realities."
|CO to Consider Programs Embedded in Printers and Cartridges
In DMCA Exemptions Rulemaking
|2/10. The Copyright Office (CO) granted a
request from Static Control Components (SCC)
to expand the scope of, and extend the reply comment deadline for, its current rulemaking proceeding
concerning exemptions to the
anti-circumvention provisions of the DMCA. SCC makes aftermarket printer
OEMs and other printer manufacturers, who want to sell replacement printer
cartridges, use copyrighted software programs embedded in their printers and
cartridges that prevent the cartridges of other manufacturers from operating in
their printers. One printer manufacturer,
Lexmark, recently filed a complaint against SCC alleging violation of the
DMCA. SCC then filed a petition with the CO, which the CO just granted. The CO
has also set a new deadline of March 10, 2003 for relevant reply comments.
DMCA Exemptions. The Digital Millennium Copyright Act (DMCA) prohibits circumvention of
technological measures that control access to copyrighted works. More
specifically, 17 U.S.C. § 1201 provides, in
Subsection (a)(1)(A), that "No person shall circumvent a technological measure
that effectively controls access to a work protected under this title ...". Then
Subsections (a)(1)(B) through (E) provide for rulemaking proceedings conducted
by the CO to establish exemptions to the prohibition of (a)(1)(A) for certain
The CO is now conducting its second rulemaking on exemptions from the prohibition on circumvention of
technological measures that control access to copyrighted works. See, the CO's
Notice of Inquiry in the Federal Register, October 15, 2002, Vol. 67, No.
199, at Pages 63578-63582.
Initial comments proposing exemptions for specific classes of works were due
by December 18, 2002. Reply comments submitted in opposition to or in further
support of exemptions proposed in the initial comments were due February 19.
Hence, SCC's request was untimely after December 18.
Lexmark's DMCA Lawsuit. On December 30, 2002 Lexmark filed a
[17 page PDF scan] in
U.S. District Court (EDKent)
against SCC alleging violation of the anti-circumvention provisions of the DMCA
in connection with its production and sale of replacement cartridges for certain
Lexmark alleged in its complaint that its "strategy is based on a business
model of building an installed
base of printers that will then generate demand for Lexmark's printer supplies
and services. Lexmark designs, manufactures, and distributes a variety of toner
cartridges for use in its installed base of laser printers."
It further alleged that "Among the many products developed and marketed by
Lexmark are its T520/522
and T620/622 laser printers and toner cartridges. Lexmark is the owner of valid
copyright registrations covering computer programs that are used to control
various operations of its T520/522 and T620/622 laser printers and to monitor
operational characteristics of its toner cartridges."
According to the complaint, one of these programs, named the "Toner Loading Programs",
is "contained on a microchip
located on the T520/522 toner cartridge". There is another "Toner Loading
Program" on a microchip in the T620/622. Another of Lexmark's programs is named
the "Printer Engine Programs".
The complaint states that "In general, the technological
measure, or authentication sequence, requires a ``secret handshake´´ between the
printer and toner cartridge to enable printer functionality."
Lexmark alleges that SCC's "SMARTEK microchips are designed to enable unauthorized toner
cartridges to function with Lexmark's T520/522 and T620/622 laser printers."
It elaborates that
these chips contain copies of Lexmark's programs, and constitutes a
"circumvention" within the meaning of the DMCA.
The District Court issued a temporary restraining order on January 9, 2003
that enjoins SCC from making or selling its Smartek microchip for toner
cartridges developed for the Lexmark T520/522 and T620/622 laser printers. See,
release of January 9.
SCC Petition to the CO. SCC filed a
[14 pages in PDF] titled "Petition of Static Control Components, Inc. for
Consideration of New Information" with the CO on January 23, 2003. SCC argued
in this petition that "Technological measures applied by a manufacturer
of computer printers and toner cartridges, Lexmark International Inc., prevent
computer printers from interoperating with toner cartridge." SCC further stated
that some Lexmark printers "perform a ``secret handshake´´ with a ``Toner Loading
Program´´ located in an EEPROM chip located on a Lexmark toner cartridge."
However, "the purpose of this ``handshake´´ authentication is not to protect
against access to copyrighted works". It is to prevent unauthorized toner
cartridges from being used with certain Lexmark printers.
SCC argued that "The DMCA was not intended to
protect the type of program at issue here. ... Such inconsequential functional
routines that control the operation of a machine or product, cannot be copied
for external purposes, and have no market value independent of the machine or
product, are not the type of works that Congress intended Section 1201(a) to
protect against circumvention of technological measures."
"Moreover, such anticompetitive and exclusionary acts should not be
permissible in light of public policies favoring the competitive recycling of
used toner cartridges, and against the misuse of copyright to control the market
for ancillary goods", wrote SCC.
Specifically, SCC asked the CO to also consider the following additional
proposed exemptions in its pending
rulemaking proceeding: "1. Computer programs embedded in computer printers and
toner cartridges and that control the interoperation and functions of the
printer and toner cartridge 2. Computer programs embedded in a machine or product and which
cannot be copied during the ordinary operation or use of the machine or product 3.
Computer programs embedded in a machine or product and that
control the operation of a machine or product connected thereto, but that do not
otherwise control the performance, display or reproduction of copyrighted works
that have an independent economic significance."
The CO granted Static Control's request. It further announced that "Reply
comments responsive to this new comment will be accepted from February
24, 2003 until March 10, 2003, at 5 pm Eastern Standard Time." See,
in the Federal Register, February 10, 2003, Vol. 68, No. 27, at Pages 6678-6679.
More Information. See also, SCC's
titled "Computer Chip Usage in Toner Cartridges and Impact on the Aftermarket:
Past, Current and Future", and
titled "The Challenges We Face: Meeting the Demands of New Technology" by SCC
CEO Ed Swartz.
Lexmark wrote in its SEC
10-Q on November 14, 2002 (at page 15) that
"Competition from supplies remanufacturers and refillers, as well as various
legislative initiatives supported by such competitors, may have an adverse impact on the
company's supplies business which would likely have an adverse impact on the company's
profitability. Price reductions on inkjet and laser supplies products, regardless of their
cause, are likely to result in lower profitability and could result in a material
adverse impact on the company's strategy and financial results."
Rep. Rick Boucher (D-VA) has
introduced legislation in the 107th and 108th Congresses to create a fair use
exemption to the anti-circumvention provisions of the DMCA. See,
HR 107 and
The SCC's petition to the CO was signed by
Seth Greenstein of the law firm of
Will & Emery and William London of SCC. For more information from the CO,
contact Rob Kasunic, Office of the General Counsel, at 202 707-8380.
|FCC Postpones Meeting
|2/10. The Federal Communications Commission
(FCC) postponed is February 13th meeting until February 20. The agenda includes
a Report and Order regarding unbundled network elements (UNEs). The FCC is under
a court imposed February 20 deadline. The meeting will be in the Commission
Meeting Room at 9:30 AM. See,
|Tuesday, February 11
|The House will meet at 12:30 PM for morning hour, and at 2:00 PM to
consider several non tech related measures; votes are postponed until 6:30 PM.
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
Greenspan will testify before the
Senate Banking Committee on
monetary policy. Location: Room 216, Hart Building.
2:00 PM. Rep. Chris Cox (R-CA),
Chairman of the House Select Committee on Homeland Security, and
Rep. Jim Turner (D-TX), the ranking
Democrat, will hold a press conference. Majority members of the Committee will
be announced. Press contact: Kate Whitman at 202
225-5611. Location: House Radio & TV Gallery (H-321), Capitol 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.
|Wednesday, February 12
|The House will meet at 10:00 AM for legislative business; the agenda
includes consideration of
The Do-Not-Call Implementation Act.
9:30 AM. The Senate Judiciary
Committee will hold a hearing on judicial nominations. The agenda includes
Timothy Tymkovich (U.S. Court of Appeals for the Tenth Circuit), Daniel Breen
(U.S.D.C., W.D. Tenn.), Thomas Varlan (U.S.D.C., E.D. Tenn.), William Steele (U.S.D.C.,
S.D. Alabama), Marian Horn (Court of Federal Claims), and Timothy Stanceu
(Court of International Trade). See,
notice. Location: Room 226, Dirksen Building.
10:00 AM. Federal Reserve Board
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
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,
[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
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
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
|Thursday, February 13
|The House will meet at 10:00 AM for legislative business.
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.
POSTPONED TO FEBRUARY 20.
9:30 AM. The Federal Communications
Commission (FCC) will hold a meeting. See,
Location: FCC, 445 12th Street, SW, Room TW-C05 (Commission Meeting Room).
9:30 AM. The Senate Judiciary
Committee will hold an executive business meeting. See,
Location: Room 226, Dirksen Building.
2:30 PM. The Senate Commerce
Committee will hold a hearing on "infrastructure
needs of minority serving institutions". See,
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)
Adelstein. Tickets to attend must be purchased by February 10. See,
purchase form. Location:
Mayflower Hotel, Grand Ballroom, 1127 Connecticut Ave., NW.
|Friday, February 14
|11:00 AM. The Library of Congress (LOC) will announce a plan titled
"National Digital Information Infrastructure and Preservation Program" (NDIIPP).
The scheduled speakers will include James Billington (Librarian of Congress)
and Laura Campbell (Associate Librarian for Strategic Initiatives). For more
information, contact Guy Lamolinara at 202 707-9217 or
email@example.com. Location: LOC, Mary Pickford
Theater, third floor, Madison Building, 1st St. & Independence Ave., SE.
TO BE DECIDED WITHOUT ORAL ARGUMENT.
9:30 AM. The U.S. Court of Appeals
(DCCir) will hear oral argument in Moultrie Independent Telephone
Company v. FCC, No. 01-1506. Judges Tatel, Garland and Williams will
preside. Location: 333 Constitution 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,
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.
notice in the Federal Register, December 30, 2002, Vol. 67, No. 250, at
Pages 79683 - 79684.
|Monday, February 17
|Presidents Day. The House will be in recess for the Presidents Day
District Work Period from February 17 through 21. The FCC will be closed on
|Tech Crime Report
|2/5. The U.S.
District Court (MDFl)
sentenced Benjamin Carter to 18 months of probation, following his plea of
guilty to seven counts of broadcasting without a license issued by the
Communications Commission (FCC), in violation of
47 U.S.C. § 301. See,
2/10. Benjamin Curtis was charged with Criminal Possession of Marijuana in
the Fifth Degree, and Unlawful Possession of Marijuana, in Criminal Court of the
City of New York, County of New York. He was arraigned on February 10. Curtis is
also know as the actor who played the role of Steven in
Dell Computer's television commercials that
used the line, "Dude, you're getting a Dell". See, New York Police Department's
of the charges.
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