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June 2, 2003, 9:00 AM ET, Alert No. 671.
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California Court Rules on Jurisdiction in Dispute Over Who Pays to Relocate Telecom Facilities Underground

5/30. The California Court of Appeal (4/3) issued its opinion [MS Word] in Anaheim v. Pacific Bell, a California state case regarding whether a city may compel a phone company to move its above ground facilities underground, at the expense of the phone company. The Superior Court (trial court) held that the state public utilities commission has exclusive jurisdiction over this dispute. The Court of Appeal affirmed.

The City of Anaheim is located in Orange County, in southern California. It enacted an ordinance requiring all utility companies to move their overhead facilities underground, including poles, wires, conductors, and transformers. It then passed a resolution creating an underground district in an area called Peralta Hills.

Anaheim then notified Pacific Bell that it was required under the resolution to move its overhead facilities in the district underground at its sole expense. Pacific Bell responded that it would only move its overhead facilities if Anaheim paid for it. Anaheim paid for the conversion, under protest, and pursuant to an agreement with Pacific Bell that it reserved the right to contest responsibility. Pacific Bell made the conversion at a cost of $109,000.

Anaheim then filed a complaint in the Superior Court for Orange County, California, against Pacific Bell, seeking recovery of $109,000. Pacific Bell argued (in a demurer) that the Superior Court lacked jurisdiction because exclusive jurisdiction rests with the California Public Utility Commission (PUC). The Superior Court ultimately agreed (and sustained the demurer).

The Court of Appeal affirmed. It stated that "The sole question is whether the PUC has exclusive jurisdiction to resolve the dispute about who pays for the relocation of defendant's overhead facilities to underground or whether the superior court has concurrent jurisdiction to decide the issue." After reviewing the state constitution, which provides that a city may not regulate matters over which the legislature grants regulatory power to the PUC, and the state public utilities code, the Court of Appeal concluded that the PUC has exclusive jurisdiction over this issue.

Anaheim did not get its $109,000 back.

4th Circuit Vacates District Court Opinion in Case Affecting Internet Alcohol Sales

5/23. The U.S. Court of Appeals (4thCir) issued its per curiam opinion [6 pages in PDF] in Bolick v. Danielson, a challenge to Virginia's alcohol sales statute under the commerce clause of the U.S. Constitution. The District Court held the statute unconstitutional. But, the Virginia legislature then amended the statute. The Appeals Court merely vacated the District Court opinion, and remanded for consideration of the statute as amended.

Clint Bolick is an attorney with the Institute for Justice, which describes itself as a "libertarian public interest law firm" that sues "governments when they stand in the way of entrepreneurs who seek to earn an honest living free from arbitrary and oppressive government interference".

In the present case, as a wine consumer and resident of Virginia, he is a plaintiff. In other cases, such as Swedenburg v. Kelly, a challenge to New York's liquor control laws, he is acting as an attorney for small wineries and wine consumers.

In this case, Bolick, and other wine consumers, and several out of state wineries, filed a complaint in U.S. District Court (EDVa) against members of the Virginia Department of Alcohol Beverage Control, alleging that Virginia's statute, which prohibited the importation of wine and beer into Virginia except through a regulated, multi-tiered structure, violates the dormant commerce clause. The plaintiffs sought declaratory and prospective injunctive relief.

The District Court held that the statute unconstitutionally discriminated against out of state wine and beer manufacturers and sellers and was not saved by the Twenty-first Amendment. See, Bolick v. Roberts, 199 F. Supp. 2d 397.

However, the Virginia legislature passed, and the governor signed into law, on April 9, 2003, legislation that alters the statute at issue in this case. The Appeals Court vacated the District Court opinion, and remanded, without providing its own constitutional analysis.

Numerous state protectionist statutes have the effect of banning many forms of e-commerce, including sales of wines by small wineries. And, many businesses and consumers that wish to engage in e-commerce have brought legal challenges to these protectionist statutes. However, in the case of challenges to liquor laws, e-commerce proponents face the additional obstacle that the the 21st Amendment grants the states authority to regulate alcohol sales.

Different courts have reached different results in wine sales cases. For example, on April 8, 2003, the U.S. Court of Appeals (4thCir) issued its opinion [20 pages in PDF] in Beskind v. Easley, holding that North Carolina's ban on direct shipment of wine from out of state wineries to North Carolina residents violates the Commerce Clause. See, TLJ story titled "4th Circuit Holds North Carolina Ban On Internet Wine Sales Is Unconstitutional", April 8, 2003.

Similarly, on November 12, 2002, the U.S. District Court (SDNY) issued its opinion [32 page PDF scan] in Swedenburg v. Kelly, holding that New York state's ban on the direct shipment of out of state wine is unconstitutional. See, story titled "Court Holds New York's Ban on Internet Wine Sales Is Unconstitutional", in TLJ Daily E-Mail Alert No. 551, November 18, 2002.

In contrast, the U.S. Court of Appeals (7thCir) reached a different conclusion in its opinion in Bridenbaugh v. Wilson. In that case, the plaintiffs challenged the constitutionality of an Indiana statute that made it unlawful for persons in another state to ship an alcoholic beverage directly to an Indiana resident. The District Court held that the Indiana direct shipment regulation was unconstitutional under the Commerce Clause, and granted the plaintiffs' summary judgment motion (Bridenbaugh v. O'Bannon, 78 F. Supp.2d 828 (N.D. Ind. 1999)). Then, the Seventh Circuit reversed, upholding the constitutionality of the state ban.

Judge Frank Easterbrook wrote that "This case pits the twenty-first amendment, which appears in the Constitution, against the ``dormant commerce clause, which does not." He continued that the 21st Amendment (which repealed prohibition) "directly authorizes state control over imports, while the premise of dormant commerce clause jurisprudence is an inference that the grant of power to Congress in Art. I sec.8 cl. 3 implies a limitation on state authority over the same subject. We must decide how the combination of express grant and implied withdrawal of state power applies to" the Indiana ban on direct sales of wine. He came down on the side of the 21st Amendment.

GAO Reports on Spectrum Management in Defense Acquisitions

5/30. The General Accounting Office (GAO) released an April 30, 2003, letter [21 pages in PDF] to the Chairmen and ranking Democrats on the Armed Services Committees regarding "Spectrum Management in Defense Acquisitions".

The letter begins by noting that "Due to the changing nature of warfighting, more and more military systems depend on the spectrum to guide precision weapons and obtain information superiority. In recent years, demand for the spectrum increased with advances in commercial technology. This demand has led to competition between government and nongovernment users, making spectrum management vital to prevent harmful interference and to promote spectrum efficiency."

The letter focuses on the Department of Defense's (DOD) requirement that developers of spectrum dependent systems obtain certification before assumption of contractual obligations for the full-scale development, production, or procurement of those systems.

The GAO found that "DOD's weapons programs have often failed to obtain, consider, or act upon adequate spectrum supportability knowledge during the early stages of acquisition. A majority of programs try to gain this knowledge at later stages, after key system development decisions may have been made. As a result, some programs experience significant delays, reduced operational capabilities, or the need for expensive redesign. More importantly, these programs missed opportunities to improve program results and avoid problems that are more costly to resolve late in development or fielding."

The GAO also found that "consideration of spectrum supportability continues to be a problem. DOD is still entering into contracts, starting full-scale development, and sometimes fielding systems before obtaining certification of spectrum supportability."

Another Spam Bill Introduced in House

5/23. Rep. Richard Burr (R-NC) and others introduced HR 2214, the "Reduction in Distribution of Spam Act of 2003". This bill would require that commercial e-mail messages contain the identity of the sender and an opt out mechanism. It would provide ISPs, states, and the FTC with enforcement authority, but only in federal court. The bill creates no private right of action, and prohibits class actions. The bill would also criminalize sending commercial e-mail with a false identity of the sender, certain sezually oriented messages, and certain automated e-mail address harvesting practices. The bill also contains a limited preemption clause.

The basic requirement of the the bill, found in Section 101(a), provides that "No person may initiate in interstate commerce the transmission, to a covered computer, of any commercial electronic mail message unless the message contains" identification, notice of opt out opportunity, a mechanism to opt out, and a valid street address.

The bill provides that "commercial electronic mail" must contain a "Clear and conspicuous notice of the opportunity ... to decline to receive future unsolicited commercial electronic mail messages from the sender".

Commercial electronic mail messages also must contain "A functioning return electronic mail address or other Internet-based mechanism, clearly and conspicuously displayed, that ... 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 unsolicited commercial electronic mail messages from that sender at the electronic mail address where the message was received".

Then, the basic prohibition of the bill, found in Section 101(b) is that "If a recipient makes a request to a sender ... not to receive some or any unsolicited commercial electronic mail messages from such sender ... the sender may not initiate the transmission to the recipient, during the 3-year period beginning 10 business days after the receipt of such request, of an unsolicited commercial electronic mail message that falls within the scope of the request ..." Also, "no person acting on behalf of the sender may initiate the transmission to the recipient", "no person acting on behalf of the sender may assist in initiating the transmission to the recipient", and "the sender may not sell, lease, exchange, or otherwise transfer or release the electronic mail address of the recipient".

Section 101(c) of the bill bans e-mail messages with false header information. It provides that "No person may initiate in interstate commerce the transmission, to a covered computer, of a commercial electronic mail message that contains or is accompanied by header information that is false or misleading (including header information that uses a third party's domain name without the third party's permission)." (Parentheses in original.)

Finally, Section 101(d) of the bill bans sending of e-mail in violation of the basic prohibition where there has been certain types of electronic harvesting of e-mail addresses. The distinction is important for enforcement actions. For example, statutory damages are greater if the violation includes the use of harvested e-mail addresses.

The bill then provides an exclusive list of who can bring civil actions for violation of the basic prohibitions of the bill. It includes providers of internet access service, states, and the Federal Trade Commission (FTC). However, it provides no cause of action to individual e-mail recipients. It also provides that actions brought by service providers and states may not be brought as class actions.

The bill provides a civil cause of action, in federal court, to "A provider of Internet access service adversely affected" by violations of Section 101. For violations of the basic prohibition (but not for violations of the prohibitions on false header information, or e-mail harvesting), the service provider must show "a pattern or practice of violations".

The bill provides that the service provider may recover the greater of actual damages or statutory damages, which is $10 per item for violation of the basic prohibition, and $50 per item for violations of the ban on false header information and e-mail harvesting. For violations of the basic prohibition, there is a cap of $500,000 (or $1,500,000 if the Court finds certain types of willful violation), and the opportunity for the Court to reduce damages.

States may also bring enforcement actions. However, the bill provides certain limitations. States must sue in federal court. States may not bring class actions. State may not bring actions when the FTC has brought a civil action, or the Department of Justice has brought a criminal action.

Criminal Enforcement. The bill would also amend Title 18, the criminal code, to provide for criminal prosecution of certain practices. The bill criminalizes sending e-mail with a false identity of the sender. However, the bill also provides an affirmative defense that less that 100 such messages were sent per 30 day period.

The bill would also criminalize sending certain seχually oriented messages. It provides that "Whoever knowingly sends an unsolicited commercial electronic mail message that includes seχually oriented material to a covered computer and knowingly fails to include in or associated with that electronic mail message the marks or notices prescribed by the Federal Trade Commission under this section shall be punished as provided in section 624."

Finally, the bill would criminalize certain e-mail harvesting practices. It provides that "Whoever knowingly and through the direct or indirect use of a covered computer uses an automated means to obtain electronic mail addresses from an Internet website or proprietary online service operated by another person, without the authorization of that person and uses those addresses in another violation of this chapter, shall be fined under this title or imprisoned not more than one year, or both."

State Preemption. The bill also contains a preemption clause. It provides that "This Act preempts any law of a State, or of a political subdivision of a State, that expressly regulates the form of, required inclusions in, the manner or timing of sending, or the form, manner, or effect of recipient requests regarding receipt of, commercial electronic mail, but such laws preempted shall not include any law regulating falsification in commercial electronic mail of the identity of the sender, of authentication information relating to the sender, of header or routing information relating to such mail, or of subject line information."

The original cosponsors of the bill are Rep. James Sensenbrenner (R-WI), Rep. Billy Tauzin (R-LA), Rep. Bob Goodlatte (R-VA), Rep. Fred Upton (R-MI), Rep. Melissa Hart (R-PA), Rep. Cliff Stearns (R-FL), and Rep. Chris Cannon (R-UT)

The bill was referred to the House Commerce Committee and the House Judiciary Committee. Rep. Sensenbrenner, the Chairman of the Judiciary Committee, stated in a release that "The House Judiciary Committee will be working with the Energy and Commerce Committee to move this legislation expeditiously through the House. It's my hope the House will approve the RID SPAM Act by the end of June".

On April 10, 2003, 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. See, story titled "Senators Burns and Wyden Re-Introduce Can Spam Bill" in TLJ Daily E-Mail Alert No. 643, April 14, 2003.

On May 1, 2003, Rep. Zoe Lofgren (D-CA) and others introduced HR 1933, the "Restrict and Eliminate the Delivery of Unsolicited Commercial Electronic Mail or Spam Act of 2003", aka the "REDUCE Spam Act".

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Notices & Disclaimers
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Monday, June 2

The House will return from its Memorial Day District Work Period at 2:00 PM. It will consider several non tech related items under suspension of the rules. Votes will be postponed until 6:30 PM. See, Republican Whip Notice.

The Senate will return from its Memorial Day District Work Period at 12:00 NOON. At 1:00 PM it will resume consideration of S 14, the "Energy Policy Act of 2003".

9:00 AM - 1:30 PM. The American Enterprise Institute (AEI) will host a program titled "Prospects and Politics of a U.S.-Taiwan Free Trade Agreement". At 9:00 AM, Deanna Okun (U.S. International Trade Commission) will speak. At 9:30 AM, there will be a panel titled "Economic Considerations". The participants will be Gordon Chang (author of The Coming Collapse of China), Lai I-Chung (Taiwan Think Tank), Greg Mastel (Miller and Chevalier), and Claude Barfield (AEI). At 11:00 AM, there will be a panel titled "Political and Strategic Considerations". The participants will be Wu Li-pei (Formosa Foundation), Steven Clemons (New America Foundation), Timothy Ryan (American Center for International Labor Solidarity), and Therese Shaheen (AIT). At 12:30 PM, Rep. Tom DeLay (R-TX) will be the luncheon speaker. See, notice. Press contact: Veronique Rodman at 202 862-4871 or vrodman@aei.org. Location: Twelfth floor, 1150 17th St., NW.

9:00 AM. The Electronic Privacy Information Center (EPIC) will host an event titled "Privacy and Technology: Looking Back, Looking Forward". See, agenda. Location: National Press Club, 529 14th St. NW, 13th Floor.

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.

10:00 AM. The U.S. District Court (DC) will hold a motion hearing in both New York State Bar Association v. FTC. and ABA v. FTC. These suits challenge to the application of the privacy provisions of the Gramm Leach Bliley Act to practicing attorneys governed by the confidentiality requirements of state bar associations. The Court will hear argument on the Federal Trade Commission's (FTC) motions to dismiss. See, NYSBA's complaint [34 page PDF scan], and memorandum in opposition to motion to dismiss [51 pages in PDF]. The NYSBA is represented by Warren Dennis and Susan Brinkerhoff of the law firm of Proskauer Rose, 202 416-6814. The ABA is represented by David Roll of the law firm of Steptoe & Johnson. Location: Courtroom 6, 333 Constitution Ave., NW.

10:00 AM - 12:00 NOON. 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.

10:45 AM. The National Telecommunications Cooperative Association (NTCA) and the Foundation for Rural Service (FRS) will hold a press briefing to release a report titled "Rural Youth Survey on Telecom Services". For more information, contact Donna Taylor at dtaylor@ntca.org or 703-351-2086. Location: National Rural Electric Cooperative Association's Conference Center, first floor, 4301 Wilson Boulevard, Arlington, VA.

5:00 PM. The Electronic Privacy Information Center (EPIC) will host a book event, regarding Information Privacy Law, by Marc Rotenberg and Daniel Solove. Location: 122 Maryland Ave., NE.

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

The House will meet at 10:30 AM for morning hour, and at 12:00 NOON for legislative business. The House will consider HR 2143, the "Unlawful Internet Gambling Funding Prohibition Act" under suspension of the rules. That is, it cannot be amended, and it requires a two thirds majority to pass. See, Republican Whip Notice.

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). The witnesses will include Rep. Dreier, Rep. Eshoo, Deborah Nightingale (Sun Microsystems), Robert Herz (Chairman of the Financial Accounting Standards Board), Paul Volcker (former Chairman of the Federal Reserve Board), Craig Barrett (CEO of Intel), Roderick Hills (former Chairman of the SEC), James Glassman (American Enterprise Institute). 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 @mail.house.gov or 202 225-4275. Location: Room 2318, Rayburn Building.

Wednesday, June 4

The House will meet at 10:00 AM for morning hour. It will consider several non tech related items under suspension of the rules. See, Republican Whip Notice.

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 salgeier@uschamber.com or 202 463-5845. Location: 1615 H Street, NW.

9:30 AM. The Senate Commerce Committee will hold a hearing regarding the Federal Communications Commission's (FCC) June 2 announcement regarding media ownership rules, and "issues related to the FCC's reauthorization". The five FCC Commissioners will testify. Location: Room 253, Russell Building.

9:30 AM. The Intellectual Property Owner's Association (IPO) will hold a press conference regarding the "National Inventor of the Year". For more information, contact Emily Atkinson at 466-2396. Location: Holeman Lounge, National Press Club, 529 14th St. NW, 13th Floor.

RESCHEDULED. 10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in InTouch Group v. Amazon.com, 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. See, notice. 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.

Thursday, June 5

The House will meet at 10:00 AM for morning hour. It will consider several non tech related items under suspension of the rules. See, Republican Whip Notice.

10:30 AM. The Senate Governmental Affairs Committee will hold a hearing on several pending Department of Homeland Security nominations, including Joe Whitley to be General Counsel. Location: Room 342, Dirksen Building.

12:00 NOON. The Congressional Internet Caucus will host a panel discussion titled "Internet Tax Simplification: Is It Really That Simple?" The discussion will focus on the Streamlined Sales Tax Project (SSTP), the existing internet tax moratorium, and the Business Activity Tax (BAT). The scheduled speakers include former Virginia Governor James Gilmore, Illinois State Senator Rauschenberger, Jean Cantrell (Circuit City), Paul Misener (Amazon), and Bartlett Cleland (Institute for Policy Innovation). RSVP to rsvp@netcaucus.org or 202 638-4370. Location: Room HC-5, U.S. Capitol Building.

Friday, June 6

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Akamai Technology v. Cable & Wireless, No. 03-1007. Location: Courtroom 201, 717 Madison Place, NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Custom Computer v. Paychex Properties, No. 03-1148. Location: Courtroom 402, 717 Madison Place, NW.

12:15 PM. The Federal Communications Bar Association's (FCBA) Wireless Telecommunications Practice Committee will host a luncheon. The topic will be "State Issues in Wireless Regulation". The speakers will include Dane Snowden (FCC), Steve Berry (CTIA), Jeff Kramer (AARP), and Jessica Zufola (NARUC). The price to attend is $15. RSVP to Wendy Parish at wendy@fcba.org by 5:00 PM on Wednesday, June 4. Location: Sidley Austin, 1501 K Street, NW.

More News

5/30. The Copyright Office (CO) published a notice in the Federal Register announcing "alternative methods for the filing of claims to the cable and satellite royalty funds for the year 2002, to avoid potential problems with mail delivery. Claimants are strongly encouraged to file their cable and satellite claims electronically, utilizing the special procedures described in this document to ensure that their claims are timely received." See, Federal Register, May 30, 2003, Vol. 68, No. 104, at pages 32381 - 32382.

5/30. The Federal Communications Commission's (FCC) Consumer & Governmental Affairs Bureau (CGB) released its quarterly report [19 pages in PDF] titled "Report on Informal Consumer Inquiries and Complaints".

5/30. The Federal Communications Commission (FCC) released a Memorandum Opinion and Order [3 pages in PDF] denying a petition for reconsideration of its May 16, 2002 Second Report and Order [PDF] in its proceeding titled "In the matter of Amendment of Part 15 of the Commission's Rules Regarding Spread Spectrum Devices". This Second Report and Order revised Section 15.247 of the FCC rules to allow new digital transmission technologies to operate under the same rules as direct sequence spread spectrum systems in the 915 MHz, 2.4 GHz, and 5.7 GHz bands. See, FCC release [PDF] regarding this order. See also, TLJ story titled "FCC Permits Frequency Hopping Spread Spectrum Devices in the 2.4 GHz Band", September 4, 2000, regarding the FCC's First Report and Order [PDF] in this proceeding. This is ET Docket No. 99-231. The Petition for Reconsideration [4 pages in PDF] was filed by Warren C. Havens and Telesaurus Holdings GB, LLC, d/b/a LMS Wireless.

5/30. The General Accounting Office (GAO) released a letter [26 pages in PDF] to Rep. Lamar Smith (R-TX) regarding "Federal Judgeships: The General Accuracy of the Case-Related Workload Measures Used to Assess the Need for Additional District Court and Courts of Appeals Judgeships". Rep. Smith is the Chairman of the House Judiciary Committee's Subcommittee on Courts, the Internet, and Intellectual Property. The GAO wrote that "the Judicial Conference's analysis begins with the quantitative case-related workload measures it has adopted for the district courts and courts of appeals -- weighted case filings and adjusted case filings, respectively. These two measures recognize, to different degrees, that the time demands on judges are largely a function of both the number and complexity of the cases on their dockets. Some types of cases may demand relatively little time and others may require many hours of work. Generally, each case filed in a district court is assigned a weight representing the average amount of judge time the case is expected to require." The GAO concluded that "The district court weighted case filings, as approved in 1993, appear to be reasonably accurate and are based on a reasonable methodology. However, they are about 10 years old, and we have concerns about the research design approved to update them."

5/30. The U.S. Patent and Trademark Office (USPTO) published a notice in the Federal Register announcing that it is proposing to "amend the rules of practice to conform them to certain amendments made to the Regulations under the Patent Cooperation Treaty (PCT) that will take effect on January 1, 2004. These amendments will result in the addition of a written opinion in PCT chapter I, as well as a simplification of PCT designations and the PCT fee structure. In addition, the Office is proposing to adjust the transmittal, search, and international preliminary examination fees for international applications filed under the PCT ..." The deadline for comments is June 30, 2003. See, Federal Register, May 30, 2003, Vol. 68, No. 104, at pages 32441 - 32448.

5/30. The U.S. Patent and Trademark Office (USPTO) published a notice in the Federal Register announcing that its final rule regarding request for continued examination practice takes effect on July 14, 2003. See, Federal Register, May 30, 2003, Vol. 68, No. 104, at pages 32376 - 32381. The USPTO notice states that the "American Inventors Protection Act of 1999 (AIPA) enacted provisions for the continued examination of a utility or plant application at the request of the applicant (request for continued examination or RCE practice). Since continued prosecution application (CPA) practice is largely redundant in view of RCE practice, the Office is eliminating CPA practice as to utility and plant applications. An applicant for a utility or plant patent may also continue to effectively obtain further examination of the application by filing a continuing application. Since RCE practice does not apply to design applications, CPA practice will remain in place for design applications."

5/22. The House Judiciary Committee's Subcommittee on Commercial and Administrative Law amended and approved HR 49, the "Internet Tax Nondiscrimination Act". The 105th Congress passed the Internet Tax Freedom Act in 1998, creating a three year moratorium on multiple or discriminatory internet taxes. The moratorium also extended to taxes on Internet access, with a grandfather clause for existing taxes. The 107th Congress passed HR 1552 in 2001, which extended the moratorium until November 1, 2003. HR 49, which is sponsored by Rep. Chris Cox (R-CA), would permanently extend the ban on multiple or discriminatory taxes. It would also terminate the grandfathering of access taxes that existed in 1998. The Subcommittee passed an amendment in the nature of a substitute which makes no substantial changes to the bill as introduced. Rep. William Delahunt (D-MA) offered a sense of the Congress amendment regarding tax simplification, which he withdrew after Rep. Chris Cannon (R-UT), the Chairman, agreed to hold a hearing. Rep. Tammy Baldwin (D-WI) offered, but then withdrew, an amendment that would have maintained the grandfather clause. Rep. Mel Watt (D-NC) offered, but then withdrew, an amendment clarifying which services are exempt.

5/22. The House Judiciary Committee's Subcommittee on Courts, the Internet and Intellectual Property amended and approved HR 1561, the "United States Patent and Trademark Fee Modernization Act of 2003".