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April 14, 2003, 9:00 AM ET, Alert No. 643.
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Senators Burns and Wyden Re-Introduce Can Spam Bill

4/10. Sen. Conrad Burns (R-MT) and Sen. Ron Wyden (D-OR) introduced S 877, the "Controlling the Assault of Non-Solicited Pormography and Marketing Act of 2003", or "CAN-SPAM Act".

The bill would create civil bans on sending unsolicited commercial e-mail (UCE) with false header information, or with intentionally false or misleading content. It would also require UCE senders to include a return e-mail address, and ban sending further UCE to persons who have objected to receiving more UCE. It would also ban the practice of sending UCE to lists of addresses that have been harvested from websites by automated means.

The bill would give enforcement authority to the Federal Trade Commission (FTC), states, and internet access providers, but not individuals. The bill would preempt state UCE laws, with exceptions.

False Header Information. The bill would ban false header information in unsolicited commercial e-mail (UCE). It provides that "Any person who initiates the transmission, to a protected computer in the United States, of an unsolicited commercial electronic mail message, with knowledge and intent that the message contains or is accompanied by header information that is materially false or materially misleading shall be fined or imprisoned for not more than 1 year, or both, under this title. For purposes of this subsection, header information that is technically accurate but includes an originating electronic mail address the access to which for purposes of initiating the message was obtained by means of false or fraudulent pretenses or representations shall be considered materially misleading."

False or Misleading UCE. The bill would also ban false or misleading UCE. It provides that "It is unlawful for any person to initiate the transmission, to a protected computer, of a commercial electronic mail message that contains, or is accompanied by, header information that is materially or intentionally false or materially or intentionally misleading. ..." The bill would similarly ban deceptive subject lines.

Return Address and Opt Out. The bill would also require UCE senders to provide "a functioning return electronic mail address or other Internet-based mechanism, clearly and conspicuously displayed, that (i) a recipient may use to submit, in a manner specified by the sender, a reply electronic mail message or other form of Internet-based communication requesting not to receive any future" UCE.

Then, the bill would bar UCE senders from sending any further UCE to persons who have so objected.

E-Mail Address Harvesting. The bill would also ban sending UCE to lists of harvested e-mail addresses. It provides that "It is unlawful for any person to initiate the transmission, to a protected computer, of an unsolicited commercial electronic mail message that is unlawful under subsection (a)," [that is, with false header information, false or misleading content, or in violation of the recipient's objection] "or to assist in the origination of such a message through the provision or selection of addresses to which the message will be sent, if such person knows that, or acts with reckless disregard as to whether (A) the electronic mail address of the recipient was obtained, using an automated means, from an Internet website or proprietary online service operated by another person ..."

Enforcement. Primary responsibility for enforcement would be given to the Federal Trade Commission (FTC).

However, the bill would also give states a limited right to enforce the provisions contained in the bill. The bill provides that "In any case in which the attorney general of a State has reason to believe that an interest of the residents of that State has been or is threatened or adversely affected by any person engaging in a practice that violates section 5 of this Act, the State, as parens patriae, may bring a civil action on behalf of the residents of the State in a district court of the United States of appropriate jurisdiction or in any other court of competent jurisdiction" for injunctive relief and damages. The bill also sets upper limits on awards of damages.

The bill would also give a cause of action to internet access providers who have been harmed by a violation of the act. They could obtain, in federal court, injunctive relief and/or damages, which are also limited by the bill.

Finally, the bill creates no private right of action.

Preemption of State Laws. The bill provides that "This Act supersedes any State or local government statute, regulation, or rule regulating the use of electronic mail to send commercial messages." However, it also provides that "Act does not supersede or pre-empt (A) State trespass, contract, or tort law or any civil action thereunder; or (B) any provision of Federal, State, or local criminal law or any civil remedy available under such law that relates to acts of fraud or theft perpetrated by means of the unauthorized transmission of commercial electronic mail messages."

Sen. Conrad BurnsSen. Burns (at right) stated in the Senate that "Spam has become more than just an inconvenience that we have learned to live with; it has now become a fundamental part of any e-mail inbox with serious economic consequences. According to one study done by a consulting group, spam will cost U.S. businesses more than $10 billion this year alone. Spam also makes working on the Internet less efficient, by clogging up servers on one end and inboxes on the other. I want some accountability brought to bear on this issue, and feel that by introducing this legislation today, we have taken an appropriate and meaningful step to tame a horse we can't seem to break just yet. This problem continues to escalate, and experts warn that more than half of e-mail traffic will be spam by this summer." See, Congressional Record, April 10, 2003, at S5204.

Senators Burns and Wyden also introduced anti-spam legislation in the 106th and 107th Congresses. Their bill in the last Congress, S 630 (107th), was approved by the Senate Commerce Committee on May 17, 2002. However, the full Senate did not pass the bill.

Sen. Burns is the Chairman of the Senate Commerce Committee's Communications Subcommittee. Sen. Wyden is also a member of the Communications Committee.

The bill is also cosponsored by Sen. Ted Stevens (R-AK), Sen. John Breaux (D-LA), Sen. Craig Thomas (R-WY), Sen. Mary Landrieu (D-LA), and Sen. Charles Schumer (D-NY).

See also, Burns release and Wyden release.

Also, AOL stated in a release that "We are pleased that Members of Congress like Senators Burns and Wyden are fighting hard for online consumers in the ongoing battle against spam and spammers. We look forward to working with them, and other lawmakers ..."

Legislators Urge Bush Not to Delay US Chile FTA

4/11. Sen. Max Baucus (D-MT), the ranking Democrat on the Senate Finance Committee, and other pro-trade Democrats, wrote a letter [PDF] to President Bush in which they stated that the U.S. should not delay signing the free trade agreement (FTA) with Chile because of its stand on Iraq.

The letter states that "We are deeply troubled by recent reports that some in your Administration are seeking to delay presentation to Congress of the U.S.-Chile Free Trade Agreement due to Chile's failure to support the U.S. position on Iraq in the U.N. Security Council. In our view, this would be a tremendous mistake. ... To delay signing the agreement because of other foreign policy disagreements, no matter how important, would send terribly counterproductive messages -- that liberalized trade is neither a desirable end in itself nor a more effective means to strengthen our international alliances."

Sen. Max BaucusThe letter was signed by three Senators -- Sen. Baucus (at right), Sen. John Kerry (D-MA), and Sen. Ben Nelson (D-NE) -- and five Representatives -- Rep. William Jefferson (D-LA), Rep. Cal Dooley (D-CA), Rep. Brad Carson (D-OK), Rep. Jim Davis (D-FL), and Rep. Vic Snyder (D-AR). All of the signatories supported giving the President trade promotion authority. Only 21 out of 211 Democrats voted for passage of HR 3005, the Bipartisan Trade Promotion Authority Act of 2001, on December 6, 2001. The bill passed on a roll call vote of 215 to 214. See, Roll Call No. 481.

On January 30, 2003, President Bush formally notified the Congress of his intent to enter into a FTA with Chile. He wrote in his notice that "This is an agreement for the economy of the 21st century. Inventors, performers, authors, and creative enterprises in the United States and Chile will benefit from enhanced copyright, patent, trademark, trade secret, and other intellectual property rights protection. The Agreement also contains protections for digital products and electronic commerce". See also, the USTR's December 2002 summary [PDF] of the Chile FTA.

Sen. Baucus' letter only references Chile. However, the U.S. is also engaged in trade negotiations with other countries that opposed the liberation of Iraq. For example, the U.S. is also engaged in talks with the PR China on a variety of trade related issues pertaining to intellectual property, electronic commerce, telecommunications and other matters.

Rep. Tauzin Presses SEC for Documents Regarding Accounting Practices of Telecom Companies

4/10. Rep. Billy Tauzin (R-LA), the Chairman of the House Commerce Committee, wrote a letter to Securities and Exchange Commission (SEC) Chairman William Donaldson regarding the SEC's refusal to produce copies of records requested by the Committee.

On June 2, 2002, Rep. Tauzin and Rep. Jim Greenwood (R-PA) wrote a letter to former SEC Chairman Harvey Pitt requesting information and documents pertaining to the SEC's investigations of the accounting practices of 13 companies, including WorldCom, Qwest, Global Crossing, and Xerox. See, story titled "WorldCom: Rep. Tauzin Requests Information From SEC", TLJ Daily E-Mail Alert No. 464, July 8, 2002.

The SEC refused to produce documents, pursuant to a claim that they are "non public". Rep. Tauzin wrote that this refusal is "without any lawful basis or justification".

Rep. Billy TauzinRep. Tauzin (at right) continued that "With the exception of legitimate claims of executive privilege by the President, there is no lawful basis upon which a Federal agency or independent commission can refuse to provide information to the Congress. This Committee routinely receives from Federal agencies information categorized as non-public, deliberative, pre-decisional, proprietary, confidential, privileged, and even classified. I cannot recall any other situation in which an agency has refused to provide this Committee with documents on the grounds that they were "non-public" records, and the SEC's action in this regard is simply unacceptable."

GM, Hughes and News Corps Announce Directv Deal

4/9. General Motors and Hughes Electronics announced on April 9 that "GM intends to split off Hughes, and simultaneously sell GM's 19.9 percent economic interest in Hughes to News Corp. ... for $14 per share, or approximately $3.8 billion." See, Hughes release. Direct broadcast satellite service provider DirecTV is a unit of Hughes.

Hughes also stated that "The transaction is subject to a number of conditions, including approval by a majority of each class of GM stockholders -- GM $1-2/3 and GM Class H -- voting both as separate classes and together as a single class. The transaction, which has been approved by the GM, Hughes and News Corp. boards of directors, remains subject to regulatory clearance under the Hart-Scott-Rodino Act and by the Federal Communications Commission. Completion of the transaction is also contingent on the receipt of a favorable ruling from the Internal Revenue Service that the split-off of Hughes from GM would be tax-free to GM and its stockholders for U.S. Federal Income Tax purposes."

The parties to the transaction held a telephone conference call on April 9. News Corp.'s Rupert Murdoch stated that "we expect the transaction to close by the end of calendar 2003". He also stated that News Corp. would follow the Federal Communications Commission's (FCC) program access regulations. A recorded replay is available at 800-839-2808.

On April 10, the Consumers Union (CU) issued a release condemning the proposed transaction. It stated that it "fears that a News Corp. purchase of DirecTV is likely to lead to higher prices for both satellite TV and cable TV customers. Rather than use DirecTV to compete with cable companies and drive down prices, News Corp. can maximize its profits by raising prices for its popular TV network, news channel, and sports programming distributed by all cable and satellite companies."

The CU added that "This transaction comes at a time when the Federal Communications Commission is considering relaxing or eliminating limits on local and national television station ownership, and considering abandoning the prohibition on owning a newspaper and television broadcast station in the same community. Consumers Union believes that the News Corp./DirecTV deal illustrates the danger of allowing one company to gain excessive control over local and national media properties, and calls on the FCC to tighten rather than loosen current media ownership rules."

Notice
The TLJ Daily E-Mail Alert will not be published on Thursday, April 17, or Friday, April 18.
Monday, April 14

The House and Senate will be in recess from April 14 through April 25 for the Spring District Work Period. The House and Senate will next meet on Monday, April 28.

The Supreme Court is in recess until Monday, April 21.

12:00 NOON. The Cato Institute will host a panel discussion titled "What's Up with the PATRIOT Act? Concerns about the Legislative Response to 9/11 and the Prospect of a PATRIOT II". The speakers will be Tim Lynch (Cato), and Jim Dempsey (Center for Democracy and Technology). See, notice and registration page. Lunch will be served. Location: Room B-338, Rayburn Building.

Deadline to submit comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) [MS Word] titled "In the Matter of Second Periodic Review of the Commission's Rules and Policies Affecting the Conversion To Digital Television". This is MB Docket No. 03-15, RM 9832, and MM Docket Nos. 99-360, 00-167, and 00-168. See, FCC release and notice in the Federal Register, February 18, 2003, Vol. 68, No. 32, at Pages 7737-7747.

Deadline to submit comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) regarding on how to use the reallocated Mobile Satellite Service (MSS) spectrum as well as other bands previously proposed for Advanced Wireless Service (AWS) use, the relocation of the Multipoint Distribution Service (MDS), and additional flexibility for the Unlicensed Personal Communications Service (UPCS) band spectrum. This is ET Docket 00-258 and IB Docket No. 99-81. See, notice in the Federal Register, March 13, 2003, Vol. 68, No. 49, at Pages 12015 - 12020.

Tuesday, April 15

RESCHEDULED. 9:30 AM. The Copyright Office (CO) will hold the second of four hearings in Washington DC regarding the exemption of certain classes of works from the Digital Millennium Copyright Act's (DMCA) prohibition against circumvention of technological measures that control access to copyrighted works. See, notice in the Federal Register, March 20, 2003, Vol. 68, No. 54, at Pages 13652 - 13653. See also, CO web page on rulemakings on anticircumvention, the relevant statutory sections at 17 U.S.C. 2101-2105, and story titled "Copyright Office to Hold Hearings on DMCA Anti Circumvention Exemptions", TLJ Daily E-Mail Alert No. 628, March 21, 2003.

POSTPONED. 9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in Covad v. Bell Atlantic, No. 02-7057. This case pertains to the applicability of the Telecommunications Act of 1996 and Section 2 of the Sherman Act, 15 U.S.C. 2, to allegations that an incumbent local exchange carrier (ILEC) has monopolized or attempted to monopolize a market for local telecommunications services. See, amicus curiae brief of the USA/FCC. Location: 333 Constitution Ave., NW.

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in Cell Telecom v. FCC, No. 02-1264. Judges Edwards, Randolph and Tatel will preside. Location: 333 Constitution Ave., NW.

12:00 NOON - 1:45 PM. The Legislation Committee of the DC Bar Association's Intellectual Property Law Section will host a luncheon program titled "Patent Legislative Agenda". The speakers will be Hayden Gregory (American Bar Association), Chris Katopis (Deputy Administrator for External Affairs, United States Patent and Trademark Office), and Michael Kirk (American Intellectual Property Law Association). The price to attend ranges from $25 to $35. For more information, call 202 626-3463. Location: D.C. Bar Conference Center, 1250 H Street NW, B-1 Level.

12:00 NOON - 1:30 PM. Janet Hale, Under Secretary for Management at the Department of Homeland Security (DHS) will give a speech. See, notice. Location: U.S. Chamber of Commerce, 1615 H Street, NW.

Deadline to submit reply comments to the Federal Communications Commission (FCC) regarding its notice of proposed rulemaking (NPRM) pertaining to the service rules for the Dedicated Short Range Communications Systems in the 5.850-5.925 GHz band (5.9 GHz band). See, notice in the Federal Register, January 15, 2003, Vol. 68, No. 10, at Pages 1999-2002. For more information, contact Nancy Zaczek at 202 418-7590 or nzaczek@fcc.gov, or Gerardo Mejia at 202 418-2895 or gmejia@fcc.gov.

Deadline to submit to the National Institute of Standards and Technology (NIST) the 2003 Eligibility Certification Package for the Malcolm Baldrige awards. See, Eligibility Forms [MS Word].

Wednesday, April 16

12:00 NOON - 2:00 PM. The DC Bar Association's Computer and Telecommunications Law Section will host a brown bag lunch titled "The Internet, E-mail and Workplace Misconduct: Preventing and Litigating Harassment, Discrimination and Discipline Claims". The speakers will be Richard Vernon (Lerch Early & Brewer), and Diane Seltzer (Cashdan Kane & Seltzer). The price to attend ranges from $15 to $30. Location: DC Bar Conference Center, 1250 H Street NW, B-1 level.

Thursday, April 17

Passover.

10:00 AM - 3:00 PM. The Federal Communications Commission's (FCC) Technological Advisory Council will hold a meeting. The topic of this meeting will be broadband access technologies. See, notice in the Federal Register, March 28, 2003, Vol. 68, No. 60, at Page 15188. For more information, contact Jeffery Goldthorp at jgoldtho@fcc.gov or 202 418-1096. Location: FCC, 445 12th St. SW, Room TW-C305 (Commission Meeting Room).

12:15 PM. The Federal Communications Bar Association's (FCBA) Cable Practice Committee will host a brown bag lunch. The speaker will be Sarah Whitesell, Legal Advisor to FCC Commissioner Jonathan Adelstein. RSVP to Wendy Parish at wendy@fcba.org. Location: NCTA, 1724 Massachusetts Ave., NW, 2nd Floor Conference Room.

12:15 PM. The Federal Communications Bar Association's (FCBA) Young Lawyers Committee will host a brown bag lunch. The speakers will be Lauren Van Wazer (Special Counsel to the Chief of FCC's OET), Paula Ford (Regulatory Counsel for Microsoft), Ashim Roy (ComBasis). For more information, contact Greg Haledjian at 202 777-3972 or Jennifer Cetta at 202 887-1597. RSVP to btoliver@mofocom. Location: Morrison & Foerster, 2000 Pennsylvania Ave., NW, Suite 5500.

Extended deadline to submit comments to the Federal Communications Commission (FCC) in response to its Notice of Inquiry (NOI) [MS Word] regarding "Additional Spectrum for Unlicensed Devices Below 900 MHz and in the 3 GHz Band". Unlicensed devices would include, among other things, 802.11. See, notice in Federal Register, January 21, 2003, Vol. 68, No. 13, at Pages 2730-2733. See also, story titled "FCC Announces Notice of Inquiry Re More Spectrum for Unlicensed Use" in TLJ Daily E-Mail Alert No. 566, December 12, 2002. For more information, contact Hugh Van Tuyl in the FCC's Office of Engineering & Technology at hvantuyl@fcc.gov or 202 418-7506. This is OET Docket No. 02-380. See, notice of extension [PDF].

Friday, April 18

Deadline to submit reply 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.

Rep. Putnam Addresses Broadband Policy

4/10. Rep. Adam Putnam (R-FL) spoke in the House regarding broadband policy. He stated that "a recent broadband technology decision by the Federal Communications Commission presents serious issues for rural America and the agricultural industry as a whole."

He elaborated that "Perhaps no small- to mid-sized business sector has been more affected by technology than agriculture, where computer systems monitor crop production, satellites relay soil moisture information and cell phones coordinate efforts."

"However, last year, when the House passed the Tauzin-Dingell bill, which would remove outmoded restrictions on local phone companies in exchange for aggressive system modernization and network build-out requirements, by adopting the business as usual stance, the FCC refused an opportunity to move in the direction that American agriculture and rural America has by adopting new technology, and instead attempted to require some companies to give deep discounts to their competition. Capital investment by these companies will suffer greatly in central Florida and throughout rural America", said Rep. Putnam.

He concluded that "if local phone companies have little interest and no real incentive to invest heavily in urban and wealthy suburban areas, rural and small-town Americans will once again get the short end of the stick. I join my colleagues on both sides of the aisle, including the gentleman from Louisiana (Mr. Tauzin) and the gentleman from Michigan (Mr. Dingell) in strongly urging the FCC to reconsider their position. Rural America needs the technological progress regulatory reform could bring." See, Congressional Record, April 10, 2003, at page H3056.

More News

4/11. The Copyright Office (CO) published a notice in the Federal Register announcing the initiation of and schedule for the 180 day arbitration period for the Phase I distribution of royalties collected under the cable statutory license of the Copyright Act for the 1998 and 1999 calendar years. For more information, contact David Carson or Susan Grimes at 202 707-8380. See, Federal Register, April 11, 2003, Vol. 68, No. 70, at Pages 17838 - 17839.

4/10. The Federal Communications Commission (FCC) released a report [50 pages in PDF] titled "Telephone Subscribership in the United States: (Data Through November 2002)". The national level is 95.3%. See, FCC release [PDF]. The report was prepared by Alexander Belinfante of the Industry Analysis and Technology Division, of the FCC's Wireline Competition Bureau.

4/11. The Office of the U.S. Trade Representative (USTR) issued a release in which it stated that USTR Robert Zoellick met with Abdallah Saif of the nation of Bahrain. It states that "Zoellick and Saif discussed Bahrain's progress at economic reform and trade liberalization ... Such progress by Bahrain includes ensuring that policies regarding biotechnology do not serve as impediments to trade, active participation by Bahrain in the World Trade Organization services negotiations, beginning the process for Bahrain to accede to the World Intellectual Property Organization internet treaties, and ensuring an open trade environment for e-commerce."

4/10. The Senate Judiciary Committee approved S 274, the Class Action Fairness Act, a bill pertaining to class action procedure. One provision of the bill provides that class actions could be removed from state court to federal court by a defendant or an unnamed class member if the total damages exceed $5 Million and parties include citizens from multiple states. See, story titled "Sen. Grassley Introduces Class Action Reform Bill", TLJ Daily E-Mail Alert No. 600, February 10, 2003.

4/10. Sen. Jon Kyl (R-AZ) and Sen. John Cornyn (R-TX) introduced S 887, a bill to amend the Internal Revenue Code of 1986 to apply an excise tax to excessive attorneys fees for legal judgments, settlements, or agreements. The bill was referred to the Senate Finance Committee.

4/11. The Cato Institute published a book titled What's Yours Is Mine: Open Access and the Rise of Infrastructure Socialism, by Adam Thierer and Wayne Crews. It is a criticism of government policies mandating "open access". Cato's summary of the 132 page book states that "Telephone and cable companies, wireless carriers, electric utilities, AOL's Instant Messenger service, the Visa/Mastercard network, Microsoft's Windows operating system -- all these and more have been targets of demands for forced access. Although supporters claim that open access is pro-competitive, the opposite is true. Forced access policies inevitably mean price and quality controls, stagnation, increased litigation, and a crippling of innovation." The price is $12.95 (Cato) or $10.36 (Amazon).

4/10. Rep. Chris Cox (R-CA), the Chairman of the Republican's House Policy Committee, announced Subcommittee Chairmen for the 108th Congress. The Chairman of the Biotechnology, Telecommunications, and Information Technology Subcommittee is Rep. Jerry Weller (R-IL).

4/11. The U.S. Court of Appeals (DCCir) issued an amended opinion [15 pages in PDF] in Sprint v. FCC. This revises its original opinion of January 21, 2003. This case is a petition for review of a Federal Communications Commission (FCC) rule governing the means by which payphone service providers are compensated for certain calls made from their payphones. The original opinion granted the petition, and remanded, because the FCC failed to follow notice and comment requirements of the Administrative Procedure Act (APA). The amended opinion adds that the rule is vacated.

4/9. Ciena announced that it will acquire WaveSmith. Ciena makes optical networking systems and software. WaveSmith, which is privately held, makes multiservice switching equipment. See, Ciena release.

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