|Supreme Court Denies Certiorari in WorldCom
3/24. The Supreme Court denied certiorari in WorldCom v. USTA, No. 02-858.
Order List [16 pages in PDF] at page 14. The Supreme Court issued no
AT&T and Covad filed a
Petition for Writ of
Certiorari [42 pages in PDF] on December 3, 2002, seeking review of the May
opinion of the U.S. Court of Appeals
USTA v. FCC.
The Appeals Court granted petitions for review of an FCC
unbundling order and line sharing order.
In the Appeals Court proceeding, incumbent local exchange carriers (ILECs) and the
U.S. Telecom Association (USTA), a group
that represents them, challenged the Federal
Communications Commission's (FCC) order requiring ILECs to lease a
variety of unbundled network elements to competitors. They also challenged a FCC line sharing order that requires ILECs
to lease only a portion of local copper loops, rather than the
whole line, for the purpose of offering DSL service. The Appeals Court
granted both petitions. It remanded both rules to the FCC for further
The petitioners asserted in their petition for writ of certiorari that the question presented
was as follows:
"Under AT&T Corp. v. Iowa Utilities Board, 525 U.S. 366 (1999),
Verizon Communications Inc. v. FCC, 122 S.Ct. 1646 (2002), and the
provisions of the Telecommunications Act of 1996, may the FCC require
incumbent telephone monopolists to lease elements of their network to
competitors based on the FCC's findings that the ability of hundreds of
firms to provide competing services will be materially lessened if they must
obtain the elements from sources outside the incumbents' networks, or must
the FCC also satisfy extra-statutory requirements in order to address
putative adverse effects that the leasing of those elements will have on
investment in alternative facilities?"
On February 20, 2003, the FCC adopted, but did not release, a report and
order regarding the Section 251 unbundling obligations of incumbent local
exchange carriers (ILECs). This report and order will address the Appeals Courts' remand in USTA
v. FCC. While the FCC has yet to release the report and order, it has
issued a short
press release [2 pages in PDF] and an
attachment [4 pages in PDF] that describe the contents of the forthcoming report
The report and order eliminates unbundling requirements for certain broadband
facilities. It also eliminates line sharing as an unbundled network element. It
also provides that ILECs must continue to provide unbundled access to copper
loops and copper subloops. Finally, FCC wrote on February 20 that "The
Commission finds that switching -- a key UNE-P element -- for business customers
served by high-capacity loops such as DS-1 will no longer be unbundled based on
a presumptive finding of no impairment. Under this framework, states will have
90 days to rebut the national finding. For mass market customers, the Commission
sets out specific criteria that states shall apply to determine, on a granular
basis, whether economic and operational impairment exists in a particular
market. State Commissions must complete such proceedings (including the approval
of an incumbent LEC batch hot cut process) within 9 months. Upon a state finding
of no impairment, the Commission sets forth a 3 year period for carriers to
transition off of UNE-P."
The Solicitor General had filed an
opposition to the petition for writ of certiorari.
See also, stories titled "WorldCom and AT&T Seek Cert in USTA v.
FCC" in TLJ
Daily E-Mail Alert No. 561, December 5, 2002, and
Announces UNE Report and Order", February 20, 2003.
|8th Circuit Upholds TCPA
3/21. The U.S.
Court of Appeals (8thCir) issued its
pages in PDF] in Missouri
v. American Blast Fax,
upholding the constitutionality of the fax advertising ban contained in the
Telephone Consumer Protection Act of 1991.
American Blast Fax (which the Appeals Court noted may no longer be in
business) and Fax.com transmitted advertising material via facsimile on behalf
of commercial clients.
Statute. The Telephone Consumer Protection Act of 1991 (TCPA), which
is codified in 47
U.S.C. § 227, bans unsolicited fax advertising.
47 U.S.C. § 227(b)(1)(C) provides that "It shall be unlawful for any person
within the United States ... to use any telephone facsimile machine, computer,
or other device to send an unsolicited advertisement to a telephone facsimile
47 U.S.C. § 227(a)(4), in turn, defines "unsolicited advertisement" as "any
material advertising the commercial availability or quality of any property,
goods, or services which is transmitted to any person without that person's
prior express invitation or permission".
District Court. The state of Missouri filed a complaint
in U.S. District Court (EDMO)
against American Blast Fax and Fax.com alleging that they violated the fax
The District Court held that the fax advertising ban provision of the TCPA
violates the First Amendment of the Constitution's free speech clause, and
The District Court received evidence that "unsolicited fax advertising shifts
costs to the recipients who are forced to contribute ink, paper, wear on their
fax machines, as well as personnel time. There was also evidence to show that a
fax advertisement interferes with the recipients' use of their machines by
preempting the fax line for the time it takes to send a message." Nevertheless,
the District Court held that the government failed to satisfy the test for
restrictions of commercial speech contained in
Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S.
Court of Appeals. The Court of Appeals reversed. It also
applied the Central Hudson test, but upheld the constitutionality of the
The Supreme Court wrote in Central Hudson that "If the speech
concerns lawful activity and is not misleading, however, we next ask ``whether
the asserted governmental interest is substantial.´´ If it is, then we
``determine whether the regulation directly advances the governmental interest
asserted,´´ and, finally, ``whether it is not more extensive than is necessary
to serve that interest.´´ Each of these latter three inquiries must be answered
in the affirmative for the regulation to be found constitutional."
So, for communications that are not unlawful or misleading, three elements
must be present: (1) a substantial government interest, (2) the regulation
advances that interest, and (3) it is not more extensive than necessary.
First, the Appeals Court reviewed the legislative history of the fax bills in
the Congress, and concluded that "that the Government has demonstrated a
substantial interest in restricting unsolicited fax advertisements in order to
prevent the cost shifting and interference such unwanted advertising places on
The Appeals Court also wrote that the government does not need
to present "empirical studies to show the significance of the harm it seeks to
remedy ... the legislative record and the evidence produced in the district
court adequately demonstrate the potential harm of unrestrained fax
Second, the Appeals Court concluded that the "TCPA's prohibition
on unsolicited commercial fax advertisements directly and materially advances
the asserted governmental interest and satisfies the third element of the
Central Hudson test."
And third, the Appeals Court concluded that the "TCPA
restriction on unsolicited commercial fax advertisements achieves a reasonable
fit between the means it adopts and the ends it seeks to serve." And hence, the
TCPA satisfies the Central Hudson test.
Spam. This case dealt only with application of the fax
advertising ban to unsolicited commercial fax messages. However, were the
Congress to enact a ban on unsolicited commercial e-mail advertising, the
analysis of its constitutionality would be very similar to the analysis in this
case. But then, challenges to any such legislation are not likely to be brought
in the 8th Circuit.
|5th Circuit Discusses Copyright and Divorce
3/20. The U.S.
Court of Appeals (5thCir) issued its
opinion [12 pages in
PDF] in Bridgmon
v. Array Systems, a
software copyright case in which the Appeals Court discussed, but did not rule
upon, the issue of when a federal court has jurisdiction over a claim for a
declaratory judgment of ownership of a copyright when the claimant is also a
party to a pending divorce action involving property division.
George Bridgmon filed a complaint in U.S.
District Court (NDTex) against
Array Systems Corporation alleging copyright infringement and breach of contract,
and against Kenna Bridgmon seeking declaratory judgment that he is the owner of
the copyright in certain software. He was also involved in a divorce proceeding
with Kenna Bridgmon. The District Court granted summary judgment to Array and Kenna. George
brought this appeal.
The Appeals Court affirmed the grants of summary judgment, but vacated and
remanded the award of attorneys fees to Array.
Judge Edith Jones, writing for the Appeals Court, also engaged in a sua sponte
discussion of jurisdiction. That is, George sought jurisdiction over the declaratory
judgment claim against his former wife, under
the Copyright Act, when there was also a divorce action pending in state court
in which division of the property of the marriage was at issue. After a lengthy
discussion, the Appeals Court concluded that the issue was moot.
The Court's discussion is merely dicta. Most of it is buried in footnote 4.
The Court wrote, in part, "If the declaratory judgment claim arose under the
Copyright Act the district court would have jurisdiction under 28 U.S.C. §
1338(a). If it arose out of the same case or controversy as the copyright
infringement claim the court could properly exercise its discretion to exercise
supplemental jurisdiction over the claim under 28 U.S.C. § 1367. In this case,
however, it is not clear if either of these statutes provides a basis for the
district court’s jurisdiction. George's declaratory judgment claim might have
violated the well-pleaded complaint rule by raising his ownership under federal
law as a defense to Kenna's state law claims. ... If George's declaratory
judgment claim did arise under the Copyright Act, then the federal courts would
have exclusive jurisdiction over such claims pursuant to 28 U.S.C. § 1338(a),
and the state courts would be without jurisdiction to dispose of copyrights held
by a party to a divorce action. ... It is also
unclear whether the dispute between George and Kenna arose out of the same
nucleus of operative facts as George's copyright infringement claim against
Array. However, we need not address this complicated jurisdictional issue in
light of the declaratory judgment claim's mootness."
|4th Circuit Rules in Copyright Registration
3/21. The U.S.
Court of Appeals (4thCir) issued its
[PDF] in Xoom
v. Imageline, a copyright case involving
registration of copyright in CD-ROM clip art packages.
Imageline introduced a product in 1994 on CD-ROM named
PicturePak SuperBundle. It contained 1,580 individual electronic clip art
images. Imageline registered the art, text, and packing design for CD-ROM and
diskette media with the Copyright Office. The registration became effective on
March 12, 1996. The registration covered the product in its entirety. There was
no specific mention of the individual clip-art images. Imageline deposited
printed and electronic copies of each clip-art image with its registration
Subsequently, in 1997, Xoom introduced a product on CD-ROM and on the web
that contained clip art images, including some that were in Imageline's product.
Xoom filed a complaint in U.S. District Court (EDVa) against Imageline
alleging copyright infringement and interference with contractual relations.
Imageline counterclaimed alleging
copyright infringement, false advertising, unfair competition, and business
The District Court made various ruling in favor of Xoom. Imageline appealed.
The Appeals Court wrote that the District Court held that "Imageline
had no basis for litigating claims of infringement with respect to the
individual images because, as registered, the copyright claims were only in the
works as a whole and not in the individual images." Imageline asserted that its
copyright registration of its products extended to the individual clip art
images contained in both products and in the computer programs used to create
The Appeals Court did not rule on whether the registration of
the products covered the individual clip art images. It did, however, rule that
Imageline's registration "was sufficient to permit an infringement action on the
underlying parts, whether they be new or preexisting." Hence, it reversed the
District Court on this issue.
The Appeals Court also addressed the issues of entitlement to statutory
damages, false advertising and unfair competition.
|People and Appointments
3/24. President Bush announced his intent to appoint
Robert Ehrlich and Martha Marsh to be Members of the
National Infrastructure Advisory Council (NIAC). The NIAC was
established by Executive Order
13231. It makes recommendations regarding the security of the cyber and
information systems of U.S. national security and economic critical infrastructures.
Ehrlich is the Governor of Maryland, and a former member of the
House Commerce Committee's
Subcommittee on Telecommunications and the Internet. Marsh is P/CEO of
Stanford Hospital & Clinics. See,
White House release.
|Tuesday, March 25
The House will meet at 12:30 PM for morning hour and at 2:00 PM for
legislative business; it will consider several non tech related items under
suspension of the rules.
9:30 AM. The House Government
Reform Committee's Subcommittee on Technology, Information Policy,
Intergovernmental Relations and the Census will hold a hearing titled "Data
Mining: Current Applications and Future Possibilities". The hearing will
also focus on privacy and abuse concerns surrounding this technology. The
scheduled witnesses are
Sen. Paula Dockery (Florida State Senate), Mark Forman (OMB),
(George Washington University Law School),
Jen Que Louie
Systems), and Gregory Kutz (GAO).
Location: Room 2154, Rayburn Building.
10:00 AM. The Senate Appropriations
Committee's Subcommittee on Homeland Security will hold a hearing on the
proposed budget for FY 2004 for the Department of
Homeland Security. Location: Room 106, Dirksen Building.
2:00 PM. The
House Commerce Committee's
Subcommittee on Telecommunications and the Internet will hold a hearing
on HR 1320,
the Commercial Spectrum Enhancement Act. The witnesses will
include Nancy Victory (Director
of the National Telecommunications and Information
Administration), Stephen Price (Deputy Assistant Secretary of Defense for
Spectrum, Space, Sensors and C3 Policy), Steven Berry (SVP for Government Affairs
of the Cellular
Telecommunications Industry Association), and Larry Grossman (Digital Promise
Project). The hearing will be webcast. Press contact: Ken Johnson or Jon Tripp at
202 225-5735. Location: Room 2123, Rayburn Building.
5:00 PM. The House Rules Committee
will meet to adopt a rule for consideration of
the Child Abduction Prevention Act. This wide ranging bill. It includes
the Amber Alert communications network provisions. Also, Section 201 would
amend 18 U.S.C. §
2516 to expand the list of predicate offenses that may serve as the basis
for the issuance of a wiretap order. Each new predicate relates to
sexual exploitation crimes against children. Section 201 is similar to
(107th Congress) which passed the House on May 21, 2002 by a vote of 396-11.
Call No. 175. See, copy of bill
[25 pages in PDF] as amended and approved by the House
Judiciary Committee on
March 18. Section 201 pertains to wiretap orders. Location: Room H-312, Capitol
|Wednesday, March 26
The House will meet at 10:00 AM. It may consider
the Child Abduction Prevention Act; see, copy of bill
[25 pages in PDF] as amended and approved by the House Judiciary Committee on
8:00 AM. Sen. Charles Grassley
(R-IA), Chairman of the Senate Finance Committee, will give a speech on tax
and bills and economic policy. Location: Hyatt Regency Capitol Hill, 400 New
Jersey Ave., NW, in Rooms Columbia A and B on the lower level.
9:30 AM. The
Senate Judiciary Committee
will hold a hearing on pending judicial nominees, including Edward Prado (to
be a Judge of the U.S. Court of Appeals for the Fifth Circuit), Cecilia
Altonaga (Southern District of Florida), Richard Bennett (District of
Maryland), Dee Drell (Western District of Louisiana), Leon Holmes (Eastern
District of Arkansas), Susan Braden (Federal Claims), and Charles Lettow
(Federal Claims). Location: Room 226, Dirksen Building.
12:15 PM. The Federal Communications Bar
Association's (FCBA) Online Communications Committee will host a brown bag
lunch. The topic will be "wireline broadband issues". The speaker will be
Brent Olson, Deputy Chief of the FCC's Wireline Competition Bureau's
Competition Policy Division. No
RSVP is necessary. Location: Kelley Drye
& Warren, 1200 19th St., NW, Suite 500.
Deadline to submit requests to the Federal Trade
Commission (FTC) to participate as a panelist in its workshops regarding the role of
technology in helping consumers and businesses protect
the privacy of personal information, including the steps taken to keep their
information secure. The FTC will hold a workshop titled "The Consumer
Experience" on May 14, and another workshop titled "The Business Experience"
on June 4. See, FTC release
notice in the Federal Register, February 26, 2003, Vol. 68, No. 38, at
Pages 8904 - 8906.
|Thursday, March 27
The House will meet at 10:00 AM. It may consider
the Child Abduction Prevention Act; see,
copy of bill
[25 pages in PDF] as amended and approved by the House Judiciary Committee on
8:00 AM - 2:30 PM. The Information
Technology Association of America (ITAA) will host a conference titled "Securing
Cyberspace: A Government Industry Partnership for the Future". At 8:30 AM,
Rep. Tom Davis (R-VA), Chairman
of the House Government Reform
Committee, will speak. At 8:55 AM,
Rep. Sherwood Boehlert (R-NY),
Chairman of the House Science
Committee, will speak. At 9:55 AM,
Sen. Robert Bennett (R-UT), will speak. At 1:30 PM,
Sen. Ron Wyden (D-OR) will speak. The
ITAA states that the event is "By invitation only" and "Expected Attendees:
Hill Members and Staff, Public Media, Industry Reps. & other Public/Private
Sector partners". See,
Location: Room G-50, Dirksen Building.
9:00 AM. The Global Business Dialogue will hold a press conference on WTO
rules. For more information, contact Judge Morris at 202 463-5074. Location:
First Amendment Lounge, National Press Club,
529 14th St. NW, 13th Floor.
9:30 AM. The Senate Judiciary
Committee will hold an executive business meeting. See,
Location: Room 226, Dirksen Building.
10:00 AM. The House Judiciary
Committee's Subcommittee on Courts, the Internet, and Intellectual
Property will hold a hearing on HR ___, the Copyright Royalty and
Distribution Act. The hearing will be webcast. Location: Room 2141,
11:00 AM. The Cato Institute will host
a book forum on the book
The Half-Life of Policy Rationales: How New Technology Affects Old Policy
Issues [Amazon sales rank on March 23: 1,844,100]. The speakers will be
Daniel Klein (co-editor), Jerry Ellig (Acting Director, Office of Policy
Planning at the Federal Trade Commission),
Donald Boudreaux (George Mason
University), and Robert Atkinson (Progressive
Policy Institute). Lunch will follow. See,
notice and registration
page. Location: Cato, 1000 Massachusetts Avenue, NW.
4:00 PM. The House Armed Services
Committee's (HASC) Subcommittee on Terrorism, Unconventional Threats and
Capabilities will hold a hearing on on
Department of Defense (DOD) science and technology policy and programs for
fiscal year 2004. The scheduled witnesses include
Director of the Defense Advanced Research
Project Agency (DARPA). The Total
Information Awareness (TIA) office is a part of the DARPA. The other
scheduled witnesses are Ronald Sega, Director of Defense Research and
Engineering at the DOD, Michael Andrews, Deputy Assistant Secretary of the
Army for Research and Technology, and James Engle, Deputy Assistant Secretary
of the Air Force for Science, Technology & Engineering. Location: Rayburn
6:00 - 8:00 PM. The Federal Communications
Bar Association (FCBA) will host a CLE seminar titled "What Every
Practitioner Needs to Know about Telecommunications Access - Policy and
Practice Related to Persons with Disabilities". The speakers will be Bryan
Tramont (FCC), Tom Chandler (FCC), Richard Ellis (Sprint), Mike Fingerhut
(Sprint), Pam Gregory (FCC), Karen Strauss (Gallaudet University), Paul
Schroeder (American Foundation for the Blind), and Claude Stout
(Telecommunications for the Deaf). The prices to attend range from $50 to $80.
RSVP to Wendy Parish at email@example.com.
Location: Wiley Rein & Fielding, 1750 K St.,
NW, 10th Floor.
|Friday, March 28
Deadline to submit comments to the Federal
Communications Commission (FCC) in response to its Further Notice of Proposed
Rulemaking (FNPRM) regarding a proposed set of rules pertaining to "plug and
play" cable compatibility. On December 19, 2002, fourteen consumer electronics
companies and seven cable operators announced that they have entered into a Memorandum
of Understanding (MOU) regarding a national plug and play standard between digital
television (DTV) products and digital cable systems. See,
[78 pages in PDF] consisting of the MOU, proposed rules to be promulgated by the
FCC, and a letter to FCC Chairman Michael
Powell and others. See also, FCC
release [MS Word] of January 7 announcing the FNPRM, and
notice in the Federal Register, January 16, 2003, Vol. 68, No. 11, at
Pages 2278 - 2283. This is CS Docket
97-80, and PP Docket 00-67. For more information, contact Susan Mort in the
FCC's Media Bureau at 202 418-7200 or
12:15 PM. The Federal
Communications Bar Association's (FCBA) Cable Practice and Legislation
Committees will host a brown bag lunch. The speakers will be Bill Baily
(Majority Counsel, Senate Commerce
Committee) and James Assey (Minority
Counsel, Senate Commerce Committee). RSVP to Wendy Parish at
firstname.lastname@example.org. Location: NCTA, 1724
Massachusetts Ave., NW, 2nd floor conference room.
|Monday, March 31
The Federal Trade Commission's (FTC)
amended final Telemarketing Sales Rule (TSR) takes effect. See,
notice in the Federal Register containing the final amended TSR, and the
Statement of Basis and Purpose. However, full compliance with the caller
identification transmission provision is required by January 29, 2004. Also, the
FTC will announce later the date by which full compliance with the
``do-not-call´´ registry provision, will be required. See, Federal Register,
January 29, 2003, Vol. 68, No. 19, at Pages 4579-4679. See also,
Day one of a two day event hosted by the
Association for Competitive Technology
(ACT) titled "Member Fly-In". For more information, contact Catherine Parsons
at 202 331-2130 x106.
Deadline to submit comments to the The
National Telecommunications and Information
Administration (NTIA) regarding the utility service cancellation notice
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 "any notice of
... the cancellation or termination of utility services (including water, heat, and
power)". (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.
notice in the Federal Register, January 28, 2003, Vol. 68, No. 18, at
Deadline to submit comments to the Federal
Communications Commission (FCC) regarding its staff study relating to
alternative methodologies for calculating contributions to the federal
universal service support mechanisms. See,
notice in the Federal Register, March 6, 2003, Vol. 68, No. 44, at Pages
10724 - 10725.
3/20. Rep. Ed Markey (D-MA)
and Rep. John Larson (D-CT)
introduced HR 1396
[20 pages in PDF], the Spectrum Commons and Digital Dividends Act of
2003. Rep. Markey introduced a similar bill,
the Wireless Technology Investment and Digital Dividends Act of 2002, in the
3/25. The U.S. Patent and Trademark Office
(USPTO) published a
notice in the Federal Register regarding its notice of proposed rulemaking (NPRM)
to amend its rules to adapt to a patent electronic image management system. The
USPTO stated that the rule changes will "facilitate electronic data capture and
processing, streamline the patent application process, and simplify and clarify
the pertinent provisions of the rules of practice." Comments are due by April
24, 2003. See, Federal Register, March 25, 2003, Vol. 68, No. 57, at Pages 14365
3/24. The General Accounting Office (GAO)
released a report [13
pages in PDF] titled "Electronic Procurement: Business Strategy Needed for GSA's
Advantage System". This report addresses the
General Services Administration's (GSA)
Advantage internet based ordering system. The report concludes that "GSA
Advantage has had only limited success as an on-line market research and
ordering tool. Market research has been limited primarily to off-the-shelf
office products, and sales through Advantage have never exceeded one–half of 1
percent of overall schedule sales. Because of initial design limitations,
Advantage has not been effective in acquiring complex products and services,
particularly information technology services that make up most of the growth in
3/24. The General Accounting Office (GAO)
released a letter [22
pages in PDF] to Rep. Todd Tiahrt
(R-KS) regarding law enforcement technologies that use cameras to identify
drivers running red lights or speeding and issue tickets to owners of identified
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