Tech Law Journal Daily E-Mail Alert
May 29, 2003, 9:00 AM ET, Alert No. 669.
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Tax Bill Signed, Without Broadband Expensing Provision or IP Deductions Limitation

5/28. The House passed the conference report on HR 2, the Jobs and Growth Reconciliation Tax Act of 2003, by a vote of 231-200 on May 22, 2003. See, Roll Call No. 225. The Senate passed the conference report on HR 2 by a vote of 50-50 on May 22. See, Roll Call No. 196. President Bush signed the bill on May 28. See, statement by Bush at signing ceremony.

The conference report deleted two technology related provisions that had been in the version of the bill passed by the Senate on May 15, 2003. (These three provisions were not in President Bush's proposal, or in the version of the bill passed by the House on May 9.)

First, the conference report leaves out a provision for the expensing of certain broadband expenditures. The provision, which was offered as an amendment by Sen. Conrad Burns (R-MT), Sen. Jay Rockefeller (D-WV) and others, would have amended the Internal Revenue Code to allow the expensing of certain broadband internet access expenditures. It was very similar to the stand alone bill, S 160, introduced on January 14, 2003, by Sen. Burns and others.

See, story titled "Sen. Burns and Sen. Baucus Introduce Broadband Expensing Bill" in TLJ Daily E-Mail Alert No. 587, January 21, 2003. See also, story titled "Senate Passes Tax Bill With Broadband Expensing Amendment" in TLJ Daily E-Mail Alert No. 664, May 19, 2003.

Second, the conference report leaves out Section 364 of the Senate bill titled "Limitation of Deduction for Charitable Contributions of Patents and Similar Property". This section would have limited the amount of deductions for charitable contributions of patents, copyrights, trademarks, trade secrets, and other intellectual property.

It would amended Section 170 of the Internal Revenue Code, which is codified at 26 U.S.C. § 170. This section provides for the deduction of charitable contributions made within the tax year. Subsection 170(e) provides for the deduction of certain contributions of ordinary income and capital gain property.

See, story titled "Senate Passes Tax Bill with Limitation of Deduction for Charitable Contributions of Intellectual Property" in TLJ Daily E-Mail Alert No. 664, May 19, 2003.

However, the conference report includes a section that revises the property subject to IRC Section 179 expensing to include certain software. It includes a Section 202, titled "Increased Expensing for Small Business". It amends Section 179 of the Internal Revenue Code, which is codified at 26 U.S.C. § 179, and titled "Election to expense certain depreciable business assets". The bill adds to the definition of "Section 179 property" several items, including certain off the shelf software.

Specifically, it adds "computer software (as defined in section 197(e)(3)(B)) which is described in section 197(e)(3)(A)(i), to which section 167 applies, and which is placed in service in a taxable year beginning after 2002 and before 2006". (Parentheses in original.)

Media Security and Reliability Council Considers Recommendations

5/28. The Media Security and Reliability Council (MSRC) held a meeting at which it considered Best Practices Recommendations [5 pages in MS Word] to ensure effective delivery of emergency information to the public during terrorist attacks, natural disasters, and other emergencies. The MSRC's Advisory Committee is scheduled to complete voting on these recommendations by June 18, 2003.

The MSRC provides recommendations to the Federal Communications Commission (FCC) and industry. Dennis FitzSimons, P/CEO of the Tribune Company, is its Chairman. It met at the FCC's headquarters building in Washington DC.

The lead recommendation is that "All media companies should reassess their vulnerabilities considering the possibility of deliberate attacks in addition to natural disasters and equipment failures and take appropriate measures to prevent loss of service and to expedite rapid recovery."

Another recommendation is that "Government should coordinate development of a Media Common Alert Protocol (MCAP). This protocol should be designed to deliver emergency messages via digital networks. It should flow over all methods of digital transport and be received by all digital receivers. This protocol should be optimized for point-to-multi-point networks and devices only."

These recommendations deal primarily with existing broadcast radio and TV, cable and DBS technologies. However, the recommendations also state that "Research into development of alternative, redundant and/or supplemental means of communicating emergency information to the public should be accelerated." In particular, "An expanded government partnership with the media, consumer electronics and computer industries should harness free market innovation, foster competition, and enhance interoperability to meet changing national warning needs."

The FCC issued a release [3 pages in PDF] summarizing the meeting, and listing some best practices recommendations.

Tom RidgeTom Ridge, Secretary of the Department of Homeland Security, stated in his remarks at the meeting that "We need to protect those means by which we communicate timely and accurate information to the public during periods of crisis".

Ridge also stated that "You should know that, during the top-off exercise that you-all covered and commented upon last week, where we had the radiological device detonated in Seattle and the biological challenge in, the plague, in Chicago, that for the purposes of the exercise, we engaged Frank Sesno to set up a VNN network so that we could work through the entire five days through the media, because we understand that communication during times of crisis is a critical part of what we do, so literally, every day."

Ridge added that "You all own or control critical pieces of infrastructure -- communication. We need you during times of crisis, and I suspect that some of your best practices will involve how you can actually protect your assets, your physical and your cyber assets."

Bill Would Facilitate Internet Sale of Replacement Contact Lenses

5/22. Rep. Richard Burr (R-NC), Rep. Billy Tauzin (R-LA), Rep. James Sensenbrenner (R-WI), and Rep. Jim Matheson (D-UT) introduced HR 2221, the "Fairness to Contact Lens Consumers Act". The bill does not reference the internet or electronic commerce. However, if passed, it would remove some barriers to the sale of replacement contact lenses over the internet.

Rep. Richard BurrRep. Burr (at right) is a member of the House Commerce Committee, which has jurisdiction over the bill. Rep. Tauzin, a cosponsor, is the Chairman of the Committee.

The bill provides, in part, that "Upon completion of a contact lens fitting, a prescriber --
(1) whether or not requested by the patient, shall provide to the patient a copy of the contact lens prescription; and
(2) shall, as directed by any person designated to act on behalf of the patient, provide or verify the contact lens prescription by electronic or other means."

The bill also provides that "A prescriber may not --
(1) require purchase of contact lenses from the prescriber or from another person as a condition of providing a copy of a prescription or verification of a prescription under subsection (a);
(2) require payment in addition to the examination fee as a condition of providing a copy of a prescription or verification of a prescription under subsection (a); or
(3) require the patient to sign a waiver or release as a condition of verifying or releasing a prescription."

The bill would also require the Federal Trade Commission (FTC) to "undertake a study to examine the strength of competition in the sale of prescription contact lenses."

The House Commerce Committee and the FTC have previously examined this issue. On September 26, 2002, the Committee's Subcommittee on Commerce, Trade and Consumer Protection held a hearing that addressed several issues, including contact lenses. See, TLJ story titled "House Subcommittee Holds Hearing on State Impediments to E-Commerce", September 26, 2002.

Joe Zeidner of 1-800- CONTACTS argued the case against state regulation of the sale of contact lenses over the Internet. See, prepared statement. Ed Cruz, Director of the Federal Trade Commission's (FTC) Office of Policy Planning, also testified. He presented the FTC's prepared statement, which reviewed the FTC's March 27, 2002, comment submitted to the State of Connecticut regarding the sale of disposable replacement contact lenses over the internet. The FTC wrote that "requiring stand alone sellers of replacement contact lenses to obtain Connecticut optician and optical establishment licenses would likely increase consumer costs while producing no offsetting health benefits" and "serve as a barrier to the expansion of Internet commerce". See also, story titled "FTC Backs Internet Sales of Contact Lenses" in TLJ Daily E-Mail Alert No. 399, March 29, 2002.

In addition the FTC held a three day workshop on October 8-10, 2002, that addressed several types of regulatory barriers to e-commerce, including those pertaining to contact lenses. See, FTC notice.

John Tennis, Assistant Attorney General for the state of Maryland, wrote in his prepared statement that "The Attorneys General of the 31 States that prosecuted the contact lens antitrust litigation believe that some lens manufacturers and some eye care professionals (``ECPs´´) are making an effort to restrict the sale of disposable contact lenses through all forms of discount sales, including the Internet, mail order, pharmacies and mass merchandisers." (See, In re Disposable Contact Lens Litigation, MDL Docket No. 1030 (M.D. Fla.).)

He continued that "The Attorneys General brought their lawsuit, in 1996, because of specific and overwhelming evidence that lens manufacturers entered into agreements with organized optometry to prevent discount sellers from selling replacement lenses to consumers. We found that the actions to exclude the discount sellers and reserve sales of replacement lenses exclusively to ECPs resulted in fewer choices for consumers of where to buy lenses, in higher prices to consumers to purchase lenses and a risk that high ECP prices were discouraging lens wearers from purchasing new lenses as frequently as recommended."

See also, other prepared statements submitted at the FTC's workshop: Food and Drug Admistration (FDA), Jonathan Coon (1-800 CONTACTS), Pat Cummings (American Optometric Association), Paul Halpern (National Association of Optometrists and Opticians), Morris Kleiner (University of Minnesota), and Gerald Ostrov (Johnson & Johnson).

Rep. Forbes Introduces Bill to Provide Grants for Digital and Wireless Technology for MSIs

5/21. Rep. Randy Forbes (R-VA) introduced HR 2183, the "Minority Serving Institution Digital and Wireless Technology Opportunity Act of 2003". This is the companion bill to S 196, which the Senate passed on April 30, 2003.

Rep. Randy ForbesRep. Forbes (at right) stated in a release that "Full access to technology has become a standard, not a bonus, in how we communicate and do our jobs every day ... Minority Serving Institutions lack even the standard information and digital technology infrastructure, placing students at a disadvantage to compete and qualify for America’s best paying jobs."

HR 2183 was referred to the House Science Committee and the House Education and Workforce Committee.

The bill would create a new office at the National Science Foundation (NSF) named the Office of Digital and Wireless Network Technology (ODWNT). The bill would also authorize the appropriation of $250,000,000 for each of the fiscal years 2004 through 2008 for grants to be administered by this new office.

The institutions eligible for grants would include "a historically Black college or university", "a Hispanic-serving institution", and "a tribally controlled college or university".

Grants could be used "to acquire the equipment, instrumentation, networking capability, hardware and software, digital network technology, wireless technology, and infrastructure". Grants could also be used "to develop and provide educational services, including faculty development, to prepare students or faculty ...". Grants could also be used to provide teacher training, and to "implement joint projects and consortia to provide education regarding technology".

See, story titled "Sen. Allen Introduces Bill to Create Technology Grant Program for MSIs" in TLJ Daily E-Mail Alert No. 586, January 20, 2003; story titled "Senate Committee Approves Technology Grant Program for Minority Serving Institutions" in TLJ Daily E-Mail Alert No. 623, March 14, 2003; and story titled "Senate Passes Technology Grant Bill" in TLJ Daily E-Mail Alert No. 655, May 5, 2003.

Microsoft Licenses Technology at Issue in Caldera v. IBM

5/19. Caldera Systems, dba SCO Group, announced in a release that SCO "has licensed its UNIX technology including a patent and source code licenses to Microsoft Corporation. The licensing deal ensures Microsoft's intellectual property compliance across all Microsoft solutions and will better enable Microsoft to ensure compatibility with UNIX and UNIX services."

On March 6, 2003, Caldera filed a complaint in state court in Utah against IBM alleging misappropriation of trade secrets, tortious interference, unfair competition and breach of contract in connection with IBM's alleged use of Caldera's proprietary UNIX code.

The complaint alleges that "UNIX is a computer operating system program and related software originally developed by AT&T Bell Laboratories (``AT&T´´). SCO/UNIX is a modification of UNIX and related software developed by SCO and its predecessors. UNIX and SCO/UNIX are widely used in the corporate, or ``enterprise,´´ computing environment."

It continues that "As a result of its acquisition of the rights to UNIX from AT&T and its own development of UNIX and SCO/UNIX, SCO is the present owner of both UNIX and SCO/UNIX software. UNIX and SCO/UNIX are valuable software programs and SCO and its predecessors have invested hundreds of millions of dollars in their development and enhancement. SCO (which, as used herein, includes its predecessor) has licensed UNIX and SCO/UNIX both to software vendors such as IBM and computer end-users such as McDonald's. The UNIX and SCO/UNIX licenses granted to software vendors and end-users are limited licenses, which impose restrictions and obligations on the licensees designed to protect the economic value of UNIX and SCO/UNIX." (Parentheses in original.)

Caldera also states in its complaint that "UNIX and SCO/UNIX compete with other proprietary programs and with “open source” software, which is software dedicated to the public. There are advantages of proprietary programs to end-users (including their proprietary functions in which their developers have invested large amounts of time and money). There are also advantages to open source programs to end-users (including that they do not have to pay for the program itself) and to software vendors (whom market the additional products and services that end-users who use open source programs ordinarily require). This case is not about the debate about the relative merits of proprietary versus open source software. Nor is this case about IBM’s right to develop and promote open source software if it decides to do so in furtherance of its independent business objectives, so long as it does so without SCO’s proprietary information. This case is, and is only, about the right of SCO not to have its proprietary software misappropriated and misused in violation of its written agreements and well-settled law." (Parentheses in original.)

The complaint concludes that "... IBM has breached its own obligations to SCO, induced and encouraged others to breach their obligations to SCO, interfered with SCO’s business, and engaged in unfair competition with SCO, including by
a) misusing and misappropriating SCO’s proprietary software;
b) inducing, encouraging, and enabling others to misuse and misappropriate SCO’s proprietary software; and
c) incorporating (and inducing, encouraging, and enabling others to incorporate) SCO’s proprietary software into open source software offerings." (Parentheses in original.)

IBM filed its answer [17 page PDF scan] on April 30, 2003. It asserted that "contrary to Caldera's allegations, by its lawsuit, Caldera seeks to hold up the open source community (and development of Linux in particular) by improperly seeking to assert proprietary rights over important, widely used technology and impeding the use of that technology by the open source community." (Parentheses in original.)

IBM added that it "has not engaged in any wrongdoing. Contrary to Caldera's unsupported assertions, IBM has not misappropriated any trade secrets; it has not engaged in unfair competition; it has not interfered with Caldera's contracts; and it has not breached contractual obligations to Caldera. In any event, IBM has the irrevocable, fully paid-up, and perpetual rights to use the ``proprietary software´´ that it is alleged to have misappropriated or misused."

Microsoft's licensing of UNIX technology may be noteworthy. On the one hand, Microsoft's licensing of Caldera's UNIX technology lends credibility to Caldera's claims in its lawsuit against IBM. Moreover, Microsoft and Caldera have a history of adversity. For example, Caldera sued Microsoft alleging violation of federal antitrust laws. See, for example, Amended Complaint. Also, Caldera is represented by the law firms of Boies Schiller & Flexner and Hatch James & Dodge. David Boies was lead trial counsel for the Department of Justice in the trial of its antitrust case against Microsoft. Brent Hatch is the son of Sen. Orrin Hatch (R-UT), the Chairman of the Senate Judiciary Committee, and Microsoft's leading critic in the Senate.

On the other hand, Microsoft now competes with IBM in the server software market. Microsoft's licensing of Caldera technology could harm IBM's Linux strategy.

IBM is represented by Cravath Swain, and locally, by Snell & Wilmer. The case is pending in the Third Judicial District of Salt Lake County, State of Utah. It is Civil No. 2:03cv0294. Judge Dale Kimball is presiding.

Sen. Breaux Criticizes Award of Government Contract to MCI WorldCom

5/23. Sen. John Breaux (D-LA) spoke in the Senate about MCI WorldCom. He stated that "MCI committed fraud on a scale that is offensive. It deceived everyone -- its employees and retirees, its shareholders and State and Federal officials. The SEC took a step in the right direction by punishing this company with the largest fine in corporate history."

"But I fear the rest of the Federal Government may not be following the lead of the SEC. For example, I understand that MCI has been given a contract, valued between $23 to $35 million, to build advanced wireless networks in Iraq. The Federal Government should not be rewarding bad actors with precious government contracts", said Sen. Breaux.

He concluded that "Other press reports indicate MCI is also using the Tax Code to reap benefits that should not be available to companies that have committed such egregious fraud. I urge the Senate Finance Committee to investigate these allegations as soon as possible." See, Congressional Record, May 23, 2003, at page S7128.

Trade News

5/27. The Office of the U.S. Trade Representative (USTR) announced that the U.S. and Chile will sign the U.S. Chile Free Trade Agreement (FTA) on Friday, June 6, 2003, in Miami, Florida. See, USTR release. On April 3, 2003, the USTR released a draft text of the U.S. Chile FTA. It is a large document. Several chapters pertain specifically to technology and communications. See especially, Chapter 15 [3 pages in PDF] pertaining to electronic commerce, Chapter 17 [32 pages in PDF] regarding intellectual property rights, and Chapter 13 [16 pages in PDF] regarding telecommunications. See also, story titled "USTR Releases US Chile FTA" in TLJ Daily E-Mail Alert No. 637, April 4, 2003.

5/23. Sen. Charles Grassley (R-IA) and Sen. Max Baucus (D-MT) sent a letter [2 pages in PDF] to Secretary of State Colin Powell regarding the Free Trade Area of the Americas ministerial in November 2003 in Miami, Florida. They noted that a General Accounting Office (GAO) report found "that the Department of State was providing only limited assistance to the USTR as it prepares for the ministerial." The two Senators continued that "While we fully understand that USTR is the lead agency responsible for preparations, the Department of State is one of the few agencies with the expertise and resources required to organize and coordinate a multinational meeting of this magnitude." The urged the State Department to "do everything it can over the next several months to work with USTR and provide the resources necessary to help ensure that the FTAA ministerial is a success."

The Tech Law Journal Daily E-Mail Alert was not published on Monday, May 26, Tuesday, May 27, or Wednesday, May 28, for a Memorial Day break.
FCC to Consider Media Ownership Rules on June 2

5/23. The Federal Communications Commission (FCC) announced the agenda [PDF] for its June 2, 2003 meeting. It lists only one item -- media ownership rules. It states that "The Commission will consider a Report and Order concerning its broadcast multiple ownership rules."

This Report and Order will be issued in several proceedings: Review of the Commission's Broadcast Ownership Rules and Other Rules Adopted Pursuant to Section 202 of the Telecommunications Act of 1996 (MB Docket No. 02-277); Cross-Ownership of Broadcast Stations and Newspapers (MM Docket No. 01-235); Rules and Policies Concerning Multiple Ownership of Radio Broadcast Stations in Local Markets (MM Docket No. 01-317); and Definition of Radio Markets (MM Docket No. 00-244).

The meeting will be at 9:30 AM in the FCC's Commission Meeting Room. The meeting will be webcast.

DHS and NIST to Collaborate

5/22. Department of Homeland Security's (DHS) Science and Technology Directorate and the Department of Commerce's (DOC) Technology Administration (TA), which includes the National Institute of Standards and Technology (NIST), entered into a Memorandum of Understanding (MOU) [2 pages in MS Word] which states that "the Directorate and TA seek to collaborate on research and planning activities, and share where appropriate facilities, personnel, and scientific information".

Phil BondThe MOU was signed by Phil Bond (at right), the Under Secretary of Commerce for Technology, and Charles McQueary, the head of the DHS's Science and Technology Directorate. Bond stated in a DHS release that "this MOU allows the Department to play a significant and useful research and technology development role in supporting the DHS mission".

This DHS release also states that "The MOU develops a formal working relationship with the DHS Science and Technology Directorate and the TA's National Institute of Standards and Technology (NIST). NIST is also working to develop ``interoperability´´ standards for first responders and is doing work on cybersecurity ..."

The DHS published a copy of this short MOU in its web site in MS Word format. Moreover, the DHS published a version, which, when displayed in the "markup view", reveals additions and deletions to the text of the document. Hence, the DHS published to the public earlier drafts of this MOU.

An earlier draft, which was significantly longer, provided details on the specific areas where the TA and DHS would collaborate. The final draft removed all of these specifics, and left only the broad principle that the two entities will collaborate.

One paragraph that was in an earlier draft, but deleted from the final draft, pertained to collaboration on cyber security.

This deleted paragraph provided that "The Directorate has an interest in the evaluation of measurement methods used in security technologies. Through a linkage with NIST, the Directorate can deliver physical standards to its customers that improve assurance of security system performance. In addition, NIST has a long history of providing information technology (IT) best practices and guidelines. NIST also has a legislative mandate to provide Federal Information Processing Standards (FIPS) for the Federal government, many of which are adopted by private industry and focused on cybersecurity. Through a linkage with the Directorate, NIST can improve its understanding of homeland security requirements for measurement science and standards support while augmenting the science and engineering infrastructure of its own laboratories. Indeed, closer integration of reinforcing activities is entirely consistent with the missions and long-range goals of both agencies."

When the Bush administration originally proposed creating the new DHS in the summer of 2002, it proposed moving the NIST's Computer Security Division (CSD) to the new DHS. See, HR 5005 (107th Congress), as introduced on June 24, 2002, at Section 202, paragraph (4).

Some technology companies, groups that represent them, and technophiles in Congress, objected to moving the CSD. They argued that the DHS would have a law enforcement and national security focus that is inconsistent with the standards setting process. For example, the CSD deals with encryption standards, and law enforcement authorities and national security agencies have a history of opposing widespread use of strong encryption products by the private sector.

Moreover, the draft MOU specifically provided for "technical collaboration, technical review of each others work" in the area of "encryption standards".

The draft MOU provided that "The following list describes a few areas of technical interest to the Directorate where NIST has significant expertise. This list is not intended to be exhaustive. Accordingly, it is likely that additional areas will be appropriate for future interactions. The Directorate and NIST may carry out these and other shared objectives through joint technical collaboration, technical review of each other’s work, joint publications, and such other mechanisms as may be mutually agreeable. ... Cybersecurity such as encryption standards and cryptography."

In the summer of 2002, the administration lost on this issue, and the CSD remained at the NIST.

See, story titled "Rep. Goodlatte and Clark Debate Moving CSD to DHS" in TLJ Daily E-Mail Alert No. 472, July 18, 2002. See also, July 17, 2002, letter from Rep. Bob Goodlatte (R-VA), Rep. Rick Boucher (D-VA), and other Representatives, to former Speaker Dick Armey (R-TX) opposing moving the CSD to the DHS. See also, stories titled "Key Provisions of the Select Committee Version of the Homeland Security Act" and "House Select Committee Approves Homeland Security Act" in TLJ Daily E-Mail Alert No. 474, July 22, 2002.

Thursday, May 29

The House and Senate will be in recess for the Memorial Day District Work Period from May 26 through May 30.

12:15 PM. The Federal Communications Bar Association's (FCBA) Cable Practice Committee will host a brown bag lunch. The speaker will be Ken Ferree, Bureau Chief of the Federal Communications Commission's (FCC) Media Bureau. RSVP to Wendy Parish at Location: National Cable & Telecommunications Association (NCTA), 1724 Massachusetts Ave., NW, 2nd Floor Conference Room.

12:15 PM. The Federal Communications Bar Association's (FCBA) Young Lawyers Committee (YLC) will host a brown bag lunch. The topics will be "YLC Year in Review, Planning Meeting 2003, and Elections". For more info contact Yaron Dori at or Ryan Wallach at Location: Willkie Farr & Gallagher, 1875 K St., NW.

Deadline to submit to the National Institute of Standards and Technology (NIST) the 2003 Award Applications for the Malcolm Baldrige awards. See, Application Form [MS Word].

Friday, May 30

10:00 AM. The U.S. Patent and Trademark Office (USPTO) will a public hearing its notice of proposed rulemaking (NPRM) to amend its regulations to implement the Madrid Protocol Implementation Act of 2002 (MPIA). See, notice in the Federal Register, March 28, 2003, Vol. 68, No. 60, at Pages 15119 - 15138. Location: USPTO, Patent Theater, 2121 Crystal Drive, Room 200, Arlington, VA.

10:00 AM - 12:00 NOON. The Federal Communications Commission's (FCC) Office of Engineering and Technology (OET) will host a tutorial titled "Radio Noise Measurement and Related Standards". The speaker will be Akira Sugiura, a professor at Tohoku University. Location: FCC, Commission Meeting Room (TW-C305), 445 12th Street, SW.

10:30 AM. The U.S. District Court (DC) will hold a status hearing in FTC v. Capital City Mortgage, D.C. No. 1:1998cv0237. Location: Courtroom 19.

12:00 NOON. Howard Beales, Director of the Federal Trade Commission's (FTC) Bureau of Consumer Protection, will speak on "Marketing and the Law" at an event titled "2003 American Marketing Association Forum -- Emerging Issues and Challenges in Public Policy. Location: Marriott at Metro Center Hotel, 775 12th Street, NW.

Deadline to submit comments to the Small Business Administration (SBA) in response to its proposal to grant a waiver of the Nonmanufacturer Rule for "overhead fiber optic groundwire and ancillary hardware components". The Nonmanufacturer Rule is found at 13 CFR 121.406(b). The notice states that the reason for the proposed waiver is that "there are no small business manufacturers or processors in the Federal market". See, notice in the Federal Register, May 28, 2003, Vol. 68, No. 102, at Pages 31641-31642.

Monday, June 2

9:30 AM. The Federal Communications Commission (FCC) will hold a meeting. It is scheduled to take action in its review of media ownership rules. See, FCC notice [PDF]. The event will be webcast. Location: FCC, Commission Meeting Room, 445 12th St., SW.

The American Enterprise Institute (AEI) will host a program titled "Competition in the Postal Industry". This is the third event of an AEI series examining the potential of modern communications technology, a more open and competitive market environment, and other topics. This event will focus on antitrust issues. The speakers will be Rick Geddes (Cornell University), Bill Kovacic (Federal Trade Commission), David Sappington (University of Florida), and Gregory Sidak (AEI). See, AEI notice. Location: 1150 17th Street, NW.

Deadline to submit comments to the National Institute of Standards and Technology (NIST) regarding its proposal to withdraw seventeen Federal Information Processing Standards (FIPS). The list of FIPS publications proposed for withdrawal includes FIPS 73, Guidelines for Security of Computer Applications; FIPS 83, Guideline on User Authentication Techniques for Computer Network Access Control; FIPS 102, Guideline for Computer Security Certification and Accreditation; FIPS 112, Password Usage; and FIPS 127-2, Database Language SQL (ANSI X3.135-1992). See, notice in the Federal Register, March 4, 2003, Vol. 68, No. 42, at Pages 10204-10205.

Deadline to submit comments to the Federal Communications Commission (FCC) in response to its notice of proposed rulemaking (NPRM) regarding its slamming rules. Slamming is the unauthorized changing of subscriber's selection of a provider of telephone exchange service or telephone toll service. The FCC adopted this NPRM on February 28, 2003, and released it on March 17. See, Third Order on Reconsideration and Second Further Notice of Proposed Rulemaking [63 pages in PDF]. This is FCC Docket No. 94-129. See also, FCC release [PDF]. For more information, contact Kelli Farmer at 202 418-7057.

SUPERSEDED. Deadline to submit comments to the Copyright Office (CO) in response to its request for public comments on "proposed regulations that set rates and terms for the use of sound recordings in eligible nonsubscription transmissions for the 2003 and 2004 statutory licensing period, and for the use of sound recordings in transmissions made by new subscription services from 1998 through December 31, 2004, in addition to the making of ephemeral recordings necessary for the facilitation of such transmissions." See, notice in the Federal Register, May 1, 2003, Vol. 68, No. 84, at Pages 23241 - 23249. See, superseding notice in the Federal Register, which also sets June 19, 2003, as the deadline for public comments.

5:00 PM. Deadline to submit nominations to the Department of Commerce's Technology Administration for appointment to the Joint High Level Advisory Panel of the United States Israel Science and Technology Commission. See, notice in the Federal Register, May 2, 2003, Vol. 68, No. 85, at Pages 23443 - 23444.

Tuesday, June 3

10:00 AM. The House Financial Services Committee's Capital Markets Subcommittee will hold a hearing titled "Accounting Treatment of Employee Stock Options". See also, HR 1372, the "Broad-Based Stock Option Plan Transparency Act", sponsored by Rep. David Dreier (R-CA) and Rep. Anna Eshoo (D-CA). See, notice. Press contact: Peggy Peterson or Brookly McLaughlin at 202 226-0471. Location: Room 2128, Rayburn Building.

1:00 PM. Rep. Sherwood Boehlert (R-NY), the Chairman of the House Science Committee (HSC), will host a pen and pad briefing on HSC matters for reporters. Press contact: Heidi Tringe at Heidi.Tringe or 202 225-4275. Location: Room 2318, Rayburn Building

Wednesday, June 4

8:30 AM - 12:30 PM. The U.S. Chamber of Commerce, Price Waterhouse Coopers, and Evolutionary Technologies International will host a workshop titled "Public-Private IT Security Information Sharing: Addressing Next-Generation Challenges". See, notice. For more information, contact Scott Algeier at or 202 463-5845. Location: 1615 H Street, NW.

RESCHEDULED. 10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in InTouch Group v., No. 02-1631. This is an appeal from the U.S. District Court (NDCal) in a patent infringement case (D.C. No. C-00-1156-DLJ) involving internet audio technology. Intouch alleged that Amazon's, and others', method of interactive delivery of portions of recorded music infringe its business method patent. See, U.S. Patent No. 5,237,157, titled "Kiosk apparatus and method for point of preview and for compilation of market data", and U.S. Patent No. 5,963,916 titled "Network apparatus and method for preview of music products and compilation of market data". Location: Courtroom 203, 717 Madison Place, NW.

10:00 AM. The House Commerce Committee's Subcommittee on Telecommunications and the Internet will hold a hearing titled "Wireless E-911 Implementation: Progress and Remaining Hurdles". The hearing will be webcast. Location: Room 2123, Rayburn Building.

The Intellectual Property Owners Association (IPO) will hold a Board of Directors Meeting. For more information, call 202 466-2396. Location: Ronald Reagan International Trade Center.

The Intellectual Property Owners Association (IPO) will host an event titled "Inventor of the Year". Rep. Howard Berman (D-CA) is scheduled to speak. For more information, call 202 466-2396. Location: Caucus Room, Cannon Building.

The Federal Trade Commission (FTC) will hold a one day workshop on the role of technology in helping businesses protect the privacy of personal information, including the steps taken to keep their information secure. See, FTC release and notice in the Federal Register, February 26, 2003, Vol. 68, No. 38, at Pages 8904 - 8906. Location: FTC, 601 New Jersey Ave., NW.

People and Appointments

5/27. Fredrick Wentland was named Associate Administrator for Spectrum Management at the Department of Commerce's National Telecommunications and Information Administration (NTIA). He has worked for the NTIA for 22 years. He replaces William Hatch, who retired last year.

5/23. Mike Meece was named Special Assistant to the President and Deputy Director of the Office of Public Liaison. He was previously Deputy Chief of Staff for Secretary of Commerce Donald Evans.

5/23. Mike Gallagher was named Deputy Chief of Staff for Policy and Counselor to Secretary of Commerce Donald Evans. He was previously Deputy Assistant Secretary for the National Telecommunications and Information Administration (NTIA).

5/23. Darren Grubb was named Deputy Chief of Staff for Operations at the Department of Commerce. He was previously Deputy Associate Director of Global Communications at the White House.

More News

5/27. The Supreme Court denied certiorari, without opinion, in Texas Digital Systems v. Telegenix, S.C. No. 02-1484. See, Order List [9 pages in PDF] at page 3. This is a patent infringement case involves controlling the color of pixels in a LED display. See, story titled "Fed Circuit Rules in Patent Case Involving LED Display" in TLJ Daily E-Mail Alert No. 531, October 21, 2003.

5/27. The Supreme Court issued several non tech related opinions. It also announced that it "will take a recess from today until Monday, June 2, 2003." See, Order List [9 pages in PDF] at page 11.

5/27. A trial jury of the U.S. District Court (EDVa) returned its verdict in MercExchange v. Ebay, a patent infringement case. The case involves U.S. Patent No. 5,845,265, titled "Consignment nodes", and other patents pertaining to online sales. The jury found willful infringement, and awarded $35 Million in damages.

5/28. The Small Business Administration (SBA) published a notice in the Federal Register announcing that it proposes to grant a waiver of the Nonmanufacturer Rule for "overhead fiber optic groundwire and ancillary hardware components". The Nonmanufacturer Rule is found at 13 CFR 121.406(b). The notice also requests public comments, by May 30, 2003. The notice states that the reason for the proposed waiver is that "there are no small business manufacturers or processors in the Federal market". However, the notice does not explain why the SBA proposes to take action with only two days notice, during a holiday week. See, Federal Register, May 28, 2003, Vol. 68, No. 102, at Pages 31641-31642.

5/27. The Federal Communications Commission (FCC) announced that it will delay Auction 53, regarding licenses in the Multichannel Video Distribution and Data Service (MVDDS), which had been scheduled to start on June 25, 2003. See, notice in Federal Register, May 27, 2003, Vol. 68, No. 101, at pages 28825 - 28826.

5/27. The Federal Communications Commission (FCC) published its semi annual Unified Agenda of Federal Regulatory and Deregulatory Actions. See, Federal Register, May 27, 2003, Vol. 68, No. 101, at pages 31310 - 31359.

5/27. The Federal Trade Commission (FTC) published its semi annual Unified Regulatory Agenda. See, Federal Register, May 27, 2003, Vol. 68, No. 101, at pages 31398 - 31404.

5/27. The Department of Homeland Security (DHS) published its semi annual Unified Regulatory Agenda, See, Federal Register, May 27, 2003, Vol. 68, No. 101, at pages 30280 - 30388.

5/27. The Department of Justice (DOJ) published its semi annual Unified Regulatory Agenda, See, Federal Register, May 27, 2003, Vol. 68, No. 101, at pages 30498 - 30547.

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