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June 5, 2003, 9:00 AM ET, Alert No. 674.
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FCC Releases NPRM Regarding Increasing Amount of Unlicensed Spectrum

6/4. The Federal Communications Commission (FCC) released its Notice of Proposed Rulemaking (NPRM) [28 pages in PDF] that proposes to increase the amount of unlicensed spectrum by 255 megahertz. The FCC announced this NPRM on May 15, 2003, but did not release it until June 4, 2003.

This is a NPRM in the proceeding titled "In the Matter of Revision of Parts 2 and 15 of the Commission's Rules to Permit Unlicensed National Information Infrastructure (U-NII) devices in the 5 GHz band". This is ET Docket No. 03-122. As of June 5, the FCC had not set deadlines for public comments. That will come when the FCC publishes a notice of this NPRM in the Federal Register.

Currently, there is a total of 300 megahertz of spectrum allocated for U-NII devices, in the 5.150-5.250 GHz, 5.250-5.350 GHz and 5.725-5.825 GHz bands. Many of the devices that use this spectrum are Wi-Fi, or 802.11, devices.

The NPRM states at the outset that "We believe that the increased available capacity gained from access to an additional 255 megahertz of spectrum, coupled with the ease of deployment and operational flexibility provided by our U-NII rules, will foster the development of a wide range of new and innovative unlicensed devices and lead to increased wireless broadband access and investment."

The NPRM further states that "such networks offer the possibility of increased competition with other providers of broadband service, including cable and digital subscriber line (DSL) broadband services. We also note that unlicensed wireless devices and networks may provide an available option for broadband service in areas that are unserved by other broadband providers."

However, while the NPRM states that allocating more spectrum would promote broadband service, the NPRM does not propose to limit use of this spectrum to broadband devices.

The NPRM also states that "the spectrum currently available for U-NII devices is insufficient to support long-term growth for unlicensed wireless broadband devices and networks. Ample evidence exists of the enormous growth in the demand for such devices and services."

The NPRM follows a petition for a rulemaking submitted by the Wireless Ethernet Compatibility Alliance (WECA), which is also known as the Wi-Fi Alliance. Many companies submitted comments in support of the petition, including Motorola, Nokia, Intel, Agere, Atheros, and Compaq.

Also, members of Congress introduced bills that would have required the FCC to conduct this rulemaking proceeding. On January 14, 2003, Sen. Barbara Boxer (D-CA) and Sen. George Allen (R-VA) introduced S 159, the "Jumpstart Broadband Act". See, story titled "Sen. Boxer and Sen. Allen Introduce WiFi Spectrum Bill", in TLJ Daily E-Mail Alert No. 586, January 20, 2003. See also, TLJ copy of bill as introduced. On January 27, 2003, Rep. Darrell Issa (R-CA) introduced HR 340, also titled the "Jumpstart Broadband Act". Also, on January 27, Rep. Mike Honda (D-CA) introduced HR 363, also titled the "Jumpstart Broadband Act".

The NPRM also relies on the findings of a paper [67 pages in PDF] titled "Unlicensed and Unshackled: A Joint OSP-OET White Paper on Unlicensed Devices and Their Regulatory Issues", and authored by staff of the FCC's Office of Strategic Planning and Policy Analysis (OSP) and Office of Engineering and Technology (OET).

See also, stories titled "FCC Adopts NPRM to Increase Unlicensed Spectrum" and "FCC Unlicensed Spectrum NPRM and the Jumpstart Broadband Act" in TLJ Daily E-Mail Alert No. 663, May 16, 2003.

Court of Appeals Denies Stay in RIAA v. Verizon

6/4. The U.S. Court of Appeals (DCCir) denied Verizon's request for a stay of a District Court order that Verizon provide subscriber information, pursuant to a subpoena, to the Recording Industry Association of America (RIAA).

The District Court previously held that copyright holders can obtain subpoenas pursuant to 17 U.S.C. § 512(h) that require Internet Service Providers (ISPs) to reveal the identities of their customers who infringe copyrights on peer to peer filing sharing systems. Verizon had argued in the District Court, unsuccessfully, that Section 512(h) subpoenas are only available with respect to infringers who stored infringing content on the servers of the ISP, and that the issuance of such subpoenas would violate either the First Amendment of the Constitution, or the justiciability requirements of Article III.

Cary Sherman, President of the RIAA, stated in a release that "The Court of Appeals decision confirms our long-held position that music pirates must be held accountable for their actions, and not be allowed to hide behind the company that provides their Internet service. The courts have repeatedly affirmed that the DMCA subpoena authority is constitutional, and does not threaten anyone's free speech or privacy rights. Given that an epidemic of illegal downloading is threatening the livelihoods of artists, songwriters and tens of thousands of other recording industry workers who bring music to the public, we look forward to Verizon's speedy compliance with this ruling."

See also, stories titled "RIAA Seeks to Enforce Subpoena to Identify Anonymous Infringer" in TLJ Daily E-Mail Alert No. 499, August 27, 2002; "Verizon and Privacy Groups Oppose RIAA Subpoena" in TLJ Daily E-Mail Alert No. 501, September 4, 2002; "District Court Rules DMCA Subpoenas Available for P2P Infringers" in TLJ Daily E-Mail Alert No. 588, January 22, 2003; "Law Professor Submits Apocalyptic Declaration in RIAA v. Verizon" in TLJ Daily E-Mail Alert No. 596, February 3, 2003; "DOJ Files Brief in Support of RIAA in Verizon Subpoena Matter" in TLJ Daily E-Mail Alert No. 646, April 22, 2002; and "District Court Rules That A DMCA § 512(h) Subpoena for the Identity of an P2P Infringer Does not Violate the Constitution" in TLJ Daily E-Mail Alert No. 649, April 25, 2003.

Microsoft Praises Singapore and Chile FTAs

6/4. Microsoft published in its website an essay on the importance of free trade agreements (FTAs) that addresses intellectual property and e-commerce. It wrote that "American creativity and innovation, especially in technology, flow around the world in trade that supports millions of good jobs here at home. This year, Congress will have two important opportunities to strengthen America's global leadership in the knowledge economy."

The U.S. Trade Representative (USTR) negotiated free trade agreements with Singapore and Chile. Both still require Congressional approval. The essay urges Congressional approval of these two FTAs.

Microsoft wrote that "Consistent with the U.S. Digital Millennium Copyright Act, these accords clarify the protection of online content and prohibit circumvention of technologies that protect digital works. The agreements also help preserve open markets for electronic commerce. They are the first treaties to recognize trade in ``digital products,´´ and to guarantee that their e-commerce will be duty-free. U.S. trade agreements with Singapore and Chile will bring significant market opportunities to the technology industries of all three nations in the years ahead."

See also, stories titled "Bush and Goh Sign US Singapore FTA" in TLJ Daily E-Mail Alert No. 656, May 7, 2003; "Legislators Urge Bush Not to Delay US Chile FTA" in TLJ Daily E-Mail Alert No. 643, April 14, 2003, "USTR Releases US Chile FTA" in TLJ Daily E-Mail Alert No. 637, April 4, 2003; and "USTR Releases US Singapore FTA" in TLJ Daily E-Mail Alert No. 619, March 10, 2003.

Federal Circuit Affirms in Pioneer v. Micro Linear

6/2. The U.S. Court of Appeals (FedCir) issued its opinion [MS Word] in Pioneer Magnetics v. Micro Linear Corporation, a patent infringement case. The Court of Appeals affirmed the judgment of the District Court.

Pioneer Magnetics owns U.S. Patent No. 4,677,366 titled "Unity power factor power supply". It describes circuitry designed to receive variant levels of input voltage and to emit a constant output voltage, thereby providing a steady electrical current source to another circuit. In 1995, Pioneer filed a complaint in U.S. District Court (CDCal) against Micro Linear alleging infringement of the '366 patent. The District Court entered judgment of non-infringement. Pioneer appealed.

The Appeals Court issued its first opinion on January 23, 2001, affirming the District Court. On June 3, 2002, the Supreme Court granted certiorari in this, and several other cases. However, the Supreme Court merely vacated and remanded to the Federal Circuit in light of its opinion [PDF] in Festo v. Shoketsu Kinzoku Kogyo Kabushiki, 535 U.S. 722 (2002), the landmark case regarding the doctrine of equivalents and the rule of prosecution history estoppel.

In the present opinion, the Appeals Court held that "Because there was a narrowing amendment and the equivalent at issue was foreseeable at the time of filing, we affirm the district court's judgment."

Capitol Hill News

6/4. The House Commerce Committee's Subcommittee on Telecommunications and the Internet held a hearing titled "Wireless E-911 Implementation: Progress and Remaining Hurdles". See, prepared statement of Rep. John Dingell (D-MI), ranking Democrat on the full Committee. See also, prepared testimony of witnesses: Dale Hatfield (University of Colorado at Boulder), John Muleta (Chief of the FCC's Wireless Telecommunications Bureau), John Melcher (National Emergency Number Association), Karl Korsmo (AT&T Wireless Services), James Callahan (MobileTel), Michael O'Connor (Verizon), and Michael Amarosa (TruePosition).

6/3. Rep. John Shimkus (R-IL), Rep. Ed Markey (D-MA), Rep. Billy Tauzin (R-LA), Rep. John Dingell (D-MI), and Rep. Fred Upton (R-MI) introduced HR 2312, a bill to amend the Communications Satellite of 1962 to provide for the dilution of the ownership interest in Inmarsat by former signatories to the Inmarsat Operating Agreement. The bill was referred to the House Commerce Committee.

6/4. The Senate Commerce Committee held an oversight hearing on the Federal Communications Commission (FCC), focusing on the FCC's announcement on June 2, 2003 that it is relaxing its media ownership rules. See, prepared statement of Sen. John McCain (R-AZ), the Chairman of the Committee, and prepared statement of Sen. Ernest Hollings (D-SC), the ranking Democrat on the Committee. See also, prepared testimony of FCC Chairman Michael Powell, prepared testimony of Commissioner Kathleen Abernathy, prepared testimony of Commissioner Kevin Martin, prepared testimony of Commissioner Michael Copps, and prepared testimony of Commissioner Jonathan Adelstein.

6/4. The House Small Business Committee held a hearing titled "The Visa Approval Backlog and its Impact on American Small Business". Rep. Donald Manzullo (R-IL), the Chairman of the Committee, stated that "It has been difficult for our government to balance our national security interests with our economic needs. Massive backlogs of business visas have cost our corporations overseas contracts and hampered our country’s economic recovery ... The State Department and the FBI have taken major steps to ease the backlog. Hopefully, this progress will continue so we can again say, ‘The United States is open for business.’" Gary Shapiro, P/CEO of the Consumer Electronics Association (CEA), testified on behalf of the CEA and the International Association for Exhibition Management (IAEM). He stated that "I urge you to carefully consider how onerous visa requirements impact our nation's ability to attract foreign buyers to do business with tens of thousands of entrepreneurial American companies participating in U.S. trade shows." See, CEA release. See also, Small Business Committee agenda and release.

Juster Addresses Barriers to High Tech Development in India

6/2. Kenneth Juster, head of the Department of Commerce's (DOC) Bureau of Industry and Security (BIS), gave a speech in New York City titled "Stimulating High-Technology Cooperation with India". He argued that the way to increase U.S. India high tech trade is not by having the U.S. reduce export controls, but rather, by having India reduce its own internal barriers to development of its high tech sector. He cited India's lack of enforcement of intellectual property rights protections, absence of transparent government procurement processes, and excessive taxes.

Juster noted that "India's strong interest in high-technology trade has focused in large part on one particular element of that trade -- items known as ``dual-use´´ goods and technologies. ``Dual-use´´ items are those that have both a legitimate commercial use and a military use in the development or production of advanced conventional weapons or weapons of mass destruction. For example, inertial navigation equipment can be used in civilian aircraft, but it also can be used in guidance systems for cruise missiles. Or high performance computers can be used for meteorological modeling, but they also can be used to model explosions to test nuclear weapons."

Kenneth JusterJuster (at right) explained that "Trade in dual-use items is referred to as ``strategic trade.´´ One of the core activities of my Bureau at the Commerce Department -- the Bureau of Industry and Security -- is to administer and enforce U.S. controls on the export of sensitive dual-use goods and technologies. Our mission is to do this in a way that promotes U.S. economic interests, while at the same time protecting U.S. national security."

He added that "Some have suggested that U.S. dual-use export controls are impeding the U.S.-India high-technology trade relationship, and that lessening -- or removing -- such controls is a key to unleashing high-tech trade. In short, they argue that, if we liberalize controls on strategic trade, then high-tech trade overall will flourish."

He argued that "the facts do not support this argument. In analyzing the data, as well as ways to increase high-technology trade between our two countries, it is clear that export controls are not a major factor impeding increased high-technology trade."

He made two points in support of this argument. First, very little of the high tech trade between the U.S. and India is subject to export controls. Second, the U.S. has more stringent export controls in place for trade with China, yet U.S. trade with China, including high tech trade, has thrived.

Juster then suggested that the real problem is policies in India that operate as barriers to economic development and trade. He stated that export control "liberalization alone is not sufficient to advance the bilateral high-technology trade relationship. That is why we are focusing as well on the economic component of high-technology trade -- and that means identifying the specific laws, policies, practices, and procedures that are obstacles or deterrents to bilateral high-technology trade and investment."

He elaborated that "These include high tariffs, lack of adequate infrastructure, lack of enforcement of intellectual property rights protections, absence of transparent government procurement processes, complex customs policies and procedures, and excessive taxes as major obstacles to a more robust bilateral economic relationship."

Juster's analysis resembles that of former Treasury Secretary Paul O'Neill. He gave a speech in New Delhi, India, on November 22, 2002, in which he stated that "the private sector is unable to attract the investment it needs to fund new ideas", and that "entrepreneurs and investors are intimidated by excessive regulation and corruption". See, story titled "O'Neill Says India's Tech Sector Needs Less Regulation" in TLJ Daily E-Mail Alert No. 556, November 25, 2002.

Thursday, June 5

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

9:00 AM. The House Judiciary Committee will hold a hearing on the Department of Justice (DOJ). Attorney General John Ashcroft will testify. The hearing will be webcast. Location: Room 2141, Rayburn Building.

9:30 AM. The Senate Judiciary Committee will hold an executive business meeting. The agenda includes consideration of the nomination of Hewitt Pate to be Assistant Attorney General for the Antitrust Division. The agenda also includes consideration of several judicial nominations, including Richard Wesley (U.S. Court of Appeals for the 2nd Circuit), Ronnie Greer (Eastern District of Tennessee), Thomas Hardiman (Western District of Pennsylvania), Mark Kravitz (District of Connecticut), and John Woodcock (District of Maine. Press contact: Margarita Tapia at 202 224-5225. See, notice. Location: Room 226, Dirksen Building.

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 or 202 638-4370. Location: Room HC-5, U.S. Capitol Building.

12:15 PM. Federal Trade Commission (FTC) Commissioner Orson Swindle be the luncheon speaker at a meeting of the Software & Information Industry Association's Government Affairs Council. He will address FTC activities involving privacy, security, and spam. Location: 1090 Vermont Ave., NW.

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 by 5:00 PM on Wednesday, June 4. Location: Sidley Austin, 1501 K Street, NW.

Monday, June 9

The Supreme Court will return from a one week recess.

Tuesday, June 10

8:00 AM - 5:30 PM. The Progress and Freedom Foundation (PFF) will host a conference titled "Promoting Creativity: Copyright in the Internet Age". The speakers will include Brad Brown (George Mason University Tech Center), James Burger (Dow Lohnes & Albertson), Richard Epstein (University of Chicago), Mike Godwin (Public Knowledge), Scott Kieff (Washington University), Edmund Kitch (University of Virginia), Stanley Liebowitz (University of Texas at Dallas), Rep. Lamar Smith (R-TX), James Delong (PFF), Michael Abramowicz (GMU School of Law), Greg Aharonian (Patent News), Michael Einhorn, Bruce Kobayashi (GMU School of Law), Katherine Lawrence (University of Michigan Business School), Adam Mossoff (Clerk, U.S. Court of Appeals for the Fifth Circuit), Harold Furchgott-Roth, Solveig Singleton (CEI), and William Adkinson (PFF). RSVP to Brooke Emmerick at 202 289-8928 or Location: J.W. Marriott Hotel, 1331 Pennsylvania Ave., NW.

9:00 AM - 3:00 PM. The President's Council of Advisors on Science and Technology (PCAST) will meet. The agenda includes a discussion of the status of the work of its workforce education and information
technology manufacturing competitiveness subcommittees, a discussion of draft report from the subcommittee on the science and technology of combating terrorism, and a discussion of its review of the federal National Nanotechnology Initiative. See, notice in the Federal Register, May 29, 2003, Vol. 68, No. 103, at pages 32037 - 32038. Location: Washington Room (roof level), Hotel Washington, 15th Street & Pennsylvania Avenue, NW.

1:00 PM. The House Ways and Means Committee's Trade Subcommittee will hold a hearing titled "Implementation of U.S. Bilateral Free Trade Agreements with Chile and Singapore". Location: Room 1100, Longworth Building.

Wednesday, June 11

9:30 AM. The Senate Judiciary Committee will hold a hearing on several pending nominations, including that of William Pryor to be a Judge of the U.S. Court of Appeals for the 11th Circuit. Press contact: Margarita Tapia at 202 224-5225. Location: Room 226, Dirksen Building.

10:00 AM. The House Commerce Committee's Subcommittee on Telecommunications and the Internet will hold a hearing titled "The Spectrum Needs of Our Nation's First Responders". The hearing will be webcast. See, notice. Press contact: Ken Johnson or Jon Tripp at 202 225-5735. Location: Room 2322, Rayburn Building.

10:00 AM The The House Commerce Committee will hold a hearing titled "Reauthorization of the Federal Trade Commission: Positioning the Commission for the Twenty-First Century". See, notice. Press contact: Ken Johnson or Jon Tripp at 202 225-5735. Location: Room 2123, Rayburn Building.

10:00 AM. The Cato Institute will host a program titled "Taxing the Internet: Questions for Governors and Legislators". Lunch will follow the program. Bill Owens, Governor of Colorado, will speak. See, Cato notice. Location: 1000 Massachusetts Avenue, NW.

2:00 PM. The Senate Judiciary Committee will hold a hearing on "P2P file sharing networks, focusing on personal and national security risks". Press contact: Margarita Tapia at 202 224-5225. Location: Room 226, Dirksen Building.

2:30 PM. The Senate Commerce Committee's Subcommittee of Competition, Foreign Commerce, and Infrastructure will hold a hearing on reauthorization of the Federal Trade Commission (FTC). Location: Room 253, Russell Building.

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