|Senators Burns and Wyden Re-Introduce Can
4/10. Sen. Conrad Burns (R-MT) and
Sen. Ron Wyden (D-OR) introduced
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"
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
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,
(107th), was approved by the Senate
Commerce Committee on May 17, 2002. However, the full Senate did not pass
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).
Burns release and Wyden
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
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."
The letter was signed by three Senators -- Sen. Baucus
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
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
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. 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
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
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
The CU added that "This transaction comes at a time when the Federal
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
|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
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,
notice in the Federal Register, February 18, 2003, Vol. 68, No. 32, at
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
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.
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,
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
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.
Under Secretary for Management at the Department
of Homeland Security (DHS) will give a speech. See,
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
email@example.com, or Gerardo Mejia at 202
418-2895 or firstname.lastname@example.org.
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
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
email@example.com 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
RSVP to Wendy Parish at firstname.lastname@example.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
email@example.com 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.
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.
4/11. The Copyright Office (CO)
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,
release [PDF]. The report was prepared by Alexander Belinfante of the Industry
Analysis and Technology Division, of the FCC's Wireline
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
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,
Chairmen for the 108th Congress. The Chairman of the Biotechnology,
Telecommunications, and Information Technology Subcommittee is
Rep. Jerry Weller
4/11. The U.S. Court of Appeals (DCCir)
amended opinion [15 pages in PDF] in Sprint v. FCC. This revises its
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,
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