|Supreme Court Upholds Children's Internet
6/23. The Supreme Court issued
pages in PDF] in US v. American Library Association, upholding the
constitutionality of the
Internet Protection Act (CIPA) [20 pages in PDF], which provides that for
libraries to receive federal subsidies or grants, they must use internet
The CIPA statute, which was enacted by the 106th Congress, requires schools
and libraries receiving e-rate subsidies, pursuant to a
Federal Communications Commission (FCC)
program loosely based on
47 U.S.C. §
254(h)(1)(B), and libraries receiving grants under the
Library Services and Technology
Act (20 U.S.C. § 9101
et seq.), as a condition for receiving subsidies or grants, to use filtering
technologies on computers with internet access that are used by children, and to
filter images that constitute obscenity or child pornography.
The CIPA was passed as a result of the efforts of
Sen. John McCain (R-AZ),
Sen. Ernest Hollings (D-SC),
Rep. Ernest Istook (R-OK),
Rep. Chip Pickering (R-MS), and
On March 20, 2001, the American Library
Association and others filed one complaint, and the
Multnomah County Public Library
(Portland Oregon area) and others filed a second
pages in PDF], both of which challenged the constitutionality of the CIPA as it
applies to libraries. These suits did not challenge the constitutionality of the
CIPA as it applies to schools.
As required by the CIPA, the case was heard on an expedited basis by a three
judge panel of the U.S. District Court. The plaintiffs filed in the U.S.
District Court for the Eastern District of Pennsylvania, a venue disposed to
finding Congressional statutes unconstitutional on First Amendment grounds. The
CIPA further provides that a holding by the three judge panel that any part of
the CIPA is unconstitutional "shall be reviewable as a matter of right by direct
appeal to the Supreme Court".
A three judge panel of the U.S.
District Court (EDPa) held the statute unconstitutional as a violation of
the First Amendment. It held that filtering software is a content based
restriction on access to a public forum, and is therefore subject to the strict
scrutiny test -- that is, it must be necessary to achieve a compelling
governmental interest, and be narrowly tailored to further that interest. The
District Court held that the federal government has a compelling interest in
preventing the dissemination of obscenity, child pornography, or, in the case of
minors, material harmful to minors. However, it found that mandating the use of
filters is not narrowly tailored to further those interests.
The Supreme Court reversed. Justices wrote several opinions. No one opinion
was joined by a majority of the Court. However, six Justices joined in opinions
stating that the CIPA is constitutional. Chief Justice Rehnquist wrote an
opinion that was joined by Justices O'Connor, Scalia and Thomas. In addition,
Justice Kennedy wrote an opinion, that was joined by Justice Breyer, that
concurred as to the judgment of constitutionality, but offered a different
Three Justices dissented. Justice Stevens wrote a solo dissent. Justice
Souter wrote a dissent in which Justice Ginsburg joined.
Chief Justice Rehnquist first reviewed the nature of internet access and
filtering software. He wrote "there is also an enormous amount of pornography on
the Internet, much of which is easily obtained. ... The accessibility of this
material has created serious problems for libraries, which have found that
patrons of all ages, including minors, regularly search for online pornography.
... Some patrons also expose others to pornographic images by leaving them
displayed on Internet terminals or printed at library printers. ... Upon
discovering these problems, Congress became concerned that the E-rate and LSTA
programs were facilitating access to illegal and harmful pornography."
"But Congress also learned that filtering software that
blocks access to pornographic Web sites could provide a
reasonably effective way to prevent such uses of library
resources", wrote Rehnquist.
He also acknowledged that "But a filter set to block
pornography may sometimes block other sites that present neither
obscene nor pornographic material, but that nevertheless trigger
Rehnquist then analyzed the function fulfilled by public
libraries, and concluded that, in the context of internet
access, public libraries are not "public forums" within the
meaning of constitutional analysis.
He wrote that "The public forum principles on which the
District Court relied ... are out of place in the context of
this case. Internet access in public libraries is neither a
``traditional´´ nor a ``designated´´ public forum."
He reasoned that "A public library does not acquire Internet
terminals in order to create a public forum for Web publishers
to express themselves, any more than it collects books in order
to provide a public forum for the authors of books to speak. It
provides Internet access, not to ``encourage a diversity of
views from private speakers,´´ ... but for the same reasons it
offers other library resources: to facilitate research,
learning, and recreational pursuits by furnishing materials of
requisite and appropriate quality."
Rehnquist also wrote that "When a patron encounters a blocked
site, he need only ask a librarian to unblock it or (at least in
the case of adults) disable the filter. As the District Court
found, libraries have the capacity to permanently unblock any
erroneously blocked site ..." (Parentheses in original.)
Rehnquist also rejected the argument that the District Court
judgment should be affirmed on the grounds that the CIPA imposes
an unconstitutional condition upon the receipt of federal
Justice Kennedy wrote a short, four paragraph, concurring opinion. He wrote
that "If, on the request of an adult user, a librarian will unblock filtered
material or disable the Internet software filter without significant delay,
there is little to this case. The Government represents this is indeed the
He added that "If some libraries do not have the capacity to unblock specific
Web sites or to disable the filter or if it is shown that an adult user's
election to view constitutionally protected Internet material is burdened in
some other substantial way, that would be the subject for an as-applied
challenge, not the facial challenge made in this case."
He continued that "There are, of course, substantial
Government interests at stake here. The interest in protecting
young library users from material inappropriate for minors is
legitimate, and even compelling, as all Members of the Court
appear to agree. Given this interest, and the failure to show
that the ability of adult library users to have access to the
material is burdened in any significant degree, the statute is
not unconstitutional on its face. For these reasons, I concur in
the judgment of the Court."
Justice Kennedy did not reference public forums. Justice
Breyer joined in his opinion.
Judith Krug of the American Library Association (ALA) stated
release that the decision "is very narrow in that Justices
Kennedy and Breyer did not join Chief Justice Rehnquist's
opinion, they only joined the judgment ... Justices Kennedy and
Breyer joined the judgment because they believe adult patrons
need only ask the librarian to ‘please disable the filter’ and
need not provide any reason for the request. In light of this,
we expect libraries that decide they must accept filters to
inform their patrons how easily the filters can be turned off."
The ACLU stated in a
release that the statute is "unequivocally a form of censorship".
It added that Justice Kennedy's "distinction leaves the door open to additional challenges if libraries do not
adopt an adequate unblocking system".
|Representatives Smith & Berman Introduce
Internet Piracy Education Bill
6/19. Rep. Lamar Smith (D-TX),
Rep. Howard Berman (D-CA), and
Rep. John Conyers (D-MI) introduced
the "Piracy Deterrence and Education Act of 2003". This bill would
enhance the government's resources for prosecuting intellectual property crimes,
and involve the Federal Bureau of Investigation
(FBI) and Department of Justice (DOJ) in
educating and warning the public regarding internet based copyright
This bill has very little substance, in the sense that it make no major
challenges to the intellectual property rights regime, civil remedies, or
criminal enforcement. It contains a lengthy set of findings. It provides that
the FBI shall issue warnings to the public
about internet copyright infringement. It creates an internet piracy education
program at the DOJ. It requires the DOJ's CHIPs units to devote some resources
to intellectual property crimes.
The findings section states that "Many computer users either do not know
that copyright laws apply to Internet activity or simply believe that they will
not be caught or prosecuted for their conduct." It further states that "it is
important that Federal law enforcement agencies actively pursue criminals who
steal the copyrighted works of others, and prevent such activity through
enforcement and awareness. It is also important that the public be educated
about the security and privacy risks associated with being connected to an
unauthorized peer-to-peer network."
The bill provides that the FBI shall "develop a program to deter members of
the public from committing acts of copyright infringement by -- (A) offering on
the Internet copies of copyrighted works, or (B) making copies of copyrighted
works from the Internet, without the authorization of the copyright owners". It
further provides that such program shall include "warnings to individuals"
engaging in internet based infringement that "they may be subject to criminal
prosecution". The bill, however, makes no changes to the criminal code.
The bill also provides that the FBI shall "facilitate the sharing among law
enforcement agencies, Internet service providers, and copyright owners of
information concerning" internet based infringement.
The bill also provides that each of the DOJ's
Hacking and Intellectual Property (CHIPs) units shall have "at least one agent
to support such unit for the purpose of investigating crimes relating to the
theft of intellectual property". It also requires training of that agent.
The bill also requires the DOJ to create a "Internet Use Education Program"
to "educate the general public concerning the value of copyrighted works and the
effects of the theft of such works on those who create them", and to "educate
the general public concerning the privacy, security, and other risks of using
the Internet to obtain unauthorized copies of copyrighted works".
The bill makes three minor changes to the Copyright Act, regarding
registration (17 U.S.C.
§ 411), infringing importation (17 U.S.C. § 602), and
importation prohibitions (17 U.S.C. § 603).
It provides that "An action for infringement of the copyright in any United
States work shall not include any action brought by the Government of the United
States or by any agency or instrumentality thereof." That is, the government is
relieved of the obligation of registering a copyright before bringing an action
The findings section of the bill explains that "the Bureau of Customs and
Border Protection has been unclear about its legal authority to seize infringing
copyrighted materials that have neither been registered with the Copyright
Office nor recorded with the Bureau. To provide clarity, it is necessary to
specify the authority of the Bureau of Customs and Border Protection to seize
infringing materials protected by the copyright laws, with or without
registration or recordation."
Smith (at right) is Chairman of the
House Judiciary Committee's Subcommittee on Courts, the Internet and
Intellectual Property. Rep. Berman is the ranking Democrat on the Subcommittee.
Rep. Conyers is the ranking Democrat on the full Committee.
Jack Valenti, P/CEO of the Motion Picture
Association of America (MPAA), stated in a
release that "This bill is a sensible
step forward in ensuring that the government plays a proper role in educating
our young people about the importance of respecting intellectual property, and
giving the Federal Bureau of Investigation and other law enforcement officials
the personnel and programs necessary to help them fight this scourge."
Cary Sherman, President of the Recording
Industry Association of America (RIAA), stated in a release that "The
Smith-Berman legislation will strengthen the hand of the FBI and other federal
law enforcement officials to address the rampant copyright infringement
occurring on peer-to-peer networks. This common sense, bipartisan bill will help
ensure that federal prosecutors across the country have the resources and
expertise to fully enforce the copyright laws on the books -- especially against
those who illegally distribute massive quantities of copyrighted music online."
Sherman added that "There is also a need for greater awareness about our copyright laws and the
illegality of pirating of copyrighted works over the Internet, and this bill
bolster's the governments' ability to bring that message to the public."
|Rep. Frank Introduces Critical
Infrastructure Information FOIA Exemption Bill
6/19. Rep. Barney Frank (D-MA)
introduced HR 2526,
the "Restoration of Freedom of Information Act of 2003", a bill to
amend the provisions of the Homeland Security Act of 2002 pertaining to the
Freedom of Information Act (FOIA),
5 U.S.C. § 552,
exemption for voluntarily shared critical infrastructure information.
This is the companion bill to
S 609, which
Sen. Patrick Leahy (D-VT) and others
introduced on March 12, 2003. See, story titled "Sen. Leahy Introduces Bill to
Limit FOIA Exemption for Critical Infrastructure Information" in
TLJ Daily E-Mail
Alert No. 623, March 14, 2003.
Title II of the Homeland Security Act,
HR 5005 (107th), pertains to "Information Analysis and
Infrastructure Protection". Subtitle B of Title II pertains to
"Critical Infrastructure Information". It is comprised of
Sections 211-215. President Bush signed HR 5005 on November 25,
2002. It then became Public Law No. 107-296.
However, the debate over creating a FOIA exemption for critical infrastructure
information (CII) began long before the introduction of HR 5005 in the summer of
2002. Proponents of the CII exemption include technology companies, the trade groups
that represent them, and many members of Congress. They argue that without an
adequate exemption, companies that possess CII will not share it with the
government, for fear that their competitors, litigants, and hackers will obtain
it through FOIA requests. Moreover, if companies to do not voluntarily share CII
with the government, the government will not be able to effectively protect its
own systems, or effectively pursue national cyber security policies.
Sen. Robert Bennett (R-UT) and
Davis (R-VA) have been leading proponents of the CII FOIA exemption. See for
example, story titled "Sen. Bennett Promotes Cyber Security Bill",
TLJ Daily E-Mail
Alert No. 290, October 19, 2001.
Section 214 of the HR 5005 creates a new FOIA exemption for critical
infrastructure information. It provides, in part, "Notwithstanding any other
provision of law, critical infrastructure information (including the identity of
the submitting person or entity) that is voluntarily submitted to a covered
Federal agency for use by that agency regarding the security of critical
infrastructure and protected systems, analysis, warning, interdependency study,
recovery, reconstitution, or other informational purpose, when accompanied by an
express statement specified in paragraph (2) -- (A) shall be exempt from
disclosure under section 552 of title 5, United States Code (commonly referred
to as the Freedom of Information Act); ..." (Parentheses in original.)
The Leahy/Frank bill would make several changes. It would replace Sections
211-215 with one new Section 211.
The existing provision exempts certain "information". The Leahy/Frank bill
would exempt only "records", a narrower term.
Existing law contains a definition of "voluntarily" submitted. The
Leahy/Frank bill would narrow the definition of "voluntarily" so that it would
encompass a smaller class of records. For example, the Leahy/Frank bill would
switch the standard from the "absence of exercise" standard to the "absence of
authority" standard. That is, current law provides that "voluntary" means that
the submittal of the information is "in the absence of such agency's exercise of
legal authority to compel access to or submission of such information". The
Leahy/Frank would provide that "voluntary" means that the record is submitted
"in the absence of authority of the Department requiring that record to be
Existing law contains a definition of "critical infrastructure information".
The Leahy/Frank bill would replace it with a narrower definition of "critical
Existing law provides that "Nothing in this subtitle may be construed to
create a private right of action for enforcement of any provision of this Act."
The Leahy/Frank bill would eliminate this provision.
HR 2526 is also cosponsored by Rep.
Mark Udall (D-CO). The bill was referred to the
House Judiciary Committee, of
which Rep. Frank is a senior member.
|Senators Hatch & Leahy
Introduce Spam Crime Bill
6/19. Sen. Orrin Hatch (R-UT),
Sen. Patrick Leahy (D-VT) and others introduced
the Criminal Spam Act of 2003. The bill would criminalize accessing a protected
computer to send spam ("multiple commercial electronic mail messages"),
using a protected computer to relay or retransmit spam with intent to deceive
either recipients or ISPs, falsifying header information in spam, and registering
multiple e-mail accounts or domain names to send spam.
This is not a broad spam related bill. The
Senate Commerce Committee adopted
such a bill on June 19. The Committee amended and approved
the "Controlling the Assault of Non-Solicited
Pormography and Marketing Act of 2003", or "CAN-SPAM Act". See, story
titled "Senate Commerce Committee Passes Spam Bill" in TLJ Daily
E-Mail Alert No. 685, June 20, 2003. Rather, S 1293 is a narrow bill that
would amend Title 18 to provide criminal penalties for certain
spam related conduct.
Hatch stated in the Senate that "This legislation, which
enjoys bipartisan support, targets the most egregious types of
spammers -- those who hijack computer systems and those who use
other fraudulent means to send unsolicited commercial electronic
mail." See, Congressional Record, June 19, 2003, at page
Sen. Hatch stated that the problem is that "By using
deceptive methods, these spammers conceal their identities,
evade Internet service provider filters, and exploit the
Internet ..." He continued that bill "targets fraudulent and
deceptive spam by enhancing the ability of federal law
enforcement authorities to prosecute and punish the most
S 1293 would criminalize four
acts, if committed knowingly: "(1) accesses a protected
computer without authorization, and intentionally initiates the
transmission of multiple commercial electronic mail messages
from or through such computer; (2) uses a protected computer to
relay or retransmit multiple commercial electronic mail
messages, with the intent to deceive or mislead recipients, or
any Internet access service, as to the origin of such messages;
(3) falsifies header information in multiple commercial
electronic mail messages and intentionally initiates the
transmission of such messages; or (4) registers, using
information that falsifies the identity of the actual
registrant, for 5 or more electronic mail accounts or online
user accounts or 2 or more domain names, and intentionally
initiates the transmission of multiple commercial electronic
mail messages from such accounts or domain names".
The bill imposes penalties of up to five years in prison,
depending on which ban is violated, and the circumstances.
However, the bill also creates a
civil cause of action in U.S. District Court for the Department
of Justice and "any person engaged in the business of
providing an Internet access service" for violation of any of
the above bans.
The other original cosponsors of bill are Sen.
Charles Schumer (D-NY), Sen.
Charles Grassley (R-IA),
Sen. Dianne Feinstein
(D-CA), Sen. Mike DeWine
(R-OH), and Sen. John
|The was no issue of the TLJ Daily E-Mail Alert on Monday,
June 23, 2003.
|Bills Introduced to Provide Grants for Community Telecom
6/19. Sen. Patti Murray (D-WA) and
S 1294, the "Community Telecommunications Planning Act of 2003".
Rep. Jay Inslee (D-WA) and others
introduced the companion bill in the House,
These two bills authorize the appropriations of funds to the
Department of Commerce, the
Agriculture, and the Department of Education, to give grants to governmental and
non-profit entities for "community telecommunications infrastructure planning
and market development purposes".
The entities eligible to receive grants would be "any local or tribal
government, local non-profit entity, cooperative, public utility, or other
public entity". The bill also provides that the grant giving departments "shall
give priority ... for rural areas or underserved areas".
The bill would authorize the appropriation of $60 Million for fiscal year
2004, and "such sums as may be necessary" for subsequent years.
Sen. Murray stated in the Senate that her bill would help "rural and
underserved communities across the country get connected to the information
She continued that "many small and rural communities are having trouble
getting the access they need. Before communities can take advantage of some of
the help and incentives that are out there, they need to work together and got
through a community planning process. Community plans identify the needs and
level of demand, create a vision for the future, and show what all the players
must do to meet the telecom needs of their community for today and tomorrow.
These plans take resources to develop, and my bill would provide those funds."
See, Congressional Record, June 19, 2003, at page S8241.
These bills have been referred to the
Senate Commerce Committee and the
House Commerce Committee.
Sen. Murray introduced a similar bill in the last Congress,
(107th). It did not pass. However, it was attached to the Senate version of the
farm bill, but then removed in conference.
|FCC Announces Agenda for June 26 Meeting
6/19. The Federal Communications Commission
(FCC) announced the
agenda [2 pages in PDF] for its meeting of Thursday, June 26.
The FCC will consider an Eighth Report regarding the status Commercial Mobile
Services (CMS) competition. This is WT Docket No. 02-379.
The FCC will consider a Third Report and Order and Second Further Notice of
Proposed Rulemaking regarding issues raised by proposed revisions to satellite
and earth station license application forms. This is IB Docket Nos. 02-34 and
The FCC will consider a Report and Order regarding it rules regulating
unsolicited advertising by telephone and facsimile machine. This is CG Docket
The meeting will be a 9:30 AM in the FCC's Commission Meeting Room (Room
TWC305), at 445 12th Street, SW.
|Tuesday, June 24
The House will meet at 9:00 AM for morning hour, and at 10:00 AM for
legislative business. The House will consider
the "Homeland Security Technical Corrections Act of 2003" and HR 2555 the
"Homeland Security Appropriations Act for Fiscal Year 2004". See,
Republican Whip notice.
8:45 AM - 2:35 PM. The American
Antitrust Institute will host a Fourth Annual Conference
titled "Antitrust and Access". The price to
attend is $400. At 9:15 - 10:45 AM there will be a panel titled "Transparency: the
public's access to the federal antitrust process" The speakers will be
Warren Grimes (Southwestern University School of Law), Peter Carstensen
(University of Wisconsin), John Nannes (Skadden Arps), and Robert Pitofsky
(Georgetown University). At 11:00 AM - 12:30 PM there will be a panel titled
When should antitrust mandate access to a network?" The speakers
will be Diana Moss (AAI), Michael Dworkin (Vermont Public
Service Board), Harry First (New York University), Simon Wilkie (Chief
Economist, Federal Communications Commission).Location: National Press Club.
10:00 AM. The House Financial
Services Committee's Financial Institutions Subcommittee will hold a
hearing titled "Fighting Identity Theft -- The Role of FCRA". Location: Room
2128, Rayburn Building.
10:00 AM. The House Government
Reform Committee Subcommittee on Technology, Information Policy,
Intergovernmental Relations and the Census Oversight will hold a hearing
titled "Cyber Security: The Status of Federal Information Security and the
Effects of the Federal Information Security Management Act at Federal
Agencies." Location: Room 2154, Rayburn Building.
12:15 PM. The Federal Communications Bar
Association's (FCBA) Cable Practice Committee will host a brown bag lunch.
The speaker will be Kyle Dixon, Deputy Bureau Chief of the Federal
Communications Commission's (FCC) Media
Bureau, and Special Counsel to the Chairman for Broadband. RSVP to Wendy
Parish at email@example.com. Location:
National Cable & Telecommunications Association
(NCTA), 1724 Massachusetts Ave., NW, 2nd Floor Conference Room.
2:30 PM. The Senate Judiciary
Committee's Antitrust, Competition Policy and Consumer Rights Subcommittee
will hold a hearings to examine how to preserve and protect media
competition in the marketplace. Press contact: Margarita Tapia at 202
224-5225. Location: Room 226, Dirksen Building.
2:30 PM. The Senate Foreign Relations Committee's European Affairs
Subcommittee will hold a hearing to examine "U.S. relations with
respect to a changing Europe, focusing on differing views on technology
issues". Location: Room 419, Dirksen Building.
The 21st Century Intellectual Property Coalition will
meet. For information, contact Dana Colarulli at
|Wednesday, June 25
The House will meet at 10:00 AM for legislative business. See,
Republican Whip notice.
9:30 AM. The
Senate Commerce Committee will
hold a hearing on two nominations, including that of Pamela Harbour to be
Commissioner of the Federal Trade Commission
(FTC). The Committee will then hold a hearing on radio ownership. Location:
Room 253, Russell Building.
9:30 AM. The Senate
Government Affairs Committee will hold a hearing on the nomination of
Joshua Bolton to be Director of the
Office of Management and Budget
(OMB). Location: Room 342, Dirksen Building.
10:00 AM. The House Judiciary
Committee will meet to mark up several bills, including and
the "United States Patent and Trademark Fee Modernization Act of 2003".
The meeting will be webcast. Press contact: Jeff Lungren or Terry Shawn at 202
225-2492. Location: Room 2141, Rayburn Building.
10:15 AM. The
House International Relations Committee's Subcommittee on East Asia and
the Pacific will hold a hearing. The witness will be
Ralph Ives, Assistant U.S. Trade Represenative for Asia-Pacific and
APEC Affairs. Location: Room 2172, Rayburn Building.
12:00 NOON - 1:30 PM. The Congressional Internet Caucus Advisory Committee
and the US Asia Policy Network will host a panel discussion titled "The
Internet in Asia: Is the US Falling Behind?" RSVP to
firstname.lastname@example.org or 202 638-4370.
Location: Room 216, Hart Building.
The Federal Communications Bar Association
(FCBA) will host a luncheon. Federal
Communications Commission (FCC) Chairman
Michael Powell will speak.
2:00 PM. The Senate Judiciary
Committee will hold a hearing on the
nominations of Allyson Duncan (to be a Judge of the U.S. Court of
Appeals for the 4th Circuit), and Louise Flanagan (Eastern District of North
Carolina), Samuel Der-Yeghiayan (Northern District of Illinois), Lonny Suko
(Eastern District of Washington), Earl Leroy Yeakel (Western District of
Texas), Robert Brack (District of New Mexico), and Christopher Wray (Assistant
Attorney General). Press contact: Margarita Tapia
at 202 224-5225. See,
Room 215, Dirksen Building.
A EU-US summit will be held. President Bush will meet
with European Commission President Romano Prodi, Greek Prime Minister Costas
Simitis and High Representative Javier Solana on Wednesday morning. At 1:20
PM, President Bush, President Prodi and Prime Minister Simitis will hold a
joint press conference at the White House. At 2:30 PM, President Prodi, Prime
Minister Simitis, High Representative Solana and Greek Foreign Minister George
Papandreou will hold a joint EU press briefing at the Ritz Carlton Hotel,
Salon III, lower level, 1150 22nd Street, NW.
Commission (FCC) will begin Auction 53, regarding licenses in the
Multichannel Video Distribution and Data Service (MVDDS). See,
notice in Federal Register, May 27, 2003, Vol. 68, No. 101, at pages 28825
|Thursday, June 26
The House will meet at 10:00 AM for legislative business. See,
Republican Whip notice.
Last scheduled conference of the
Supreme Court in the October 2002 term. See,
9:30 AM. The Senate Commerce
Committee will meet to mark up several bills. The agenda includes
S 1264, the
FCC reauthorization bill, which also contains a large number of significant changes
in substantive law. For example, it contains provisions pertaining to media
ownership rules, e-rate fraud, FCC enforcement, private causes of actions
against common carriers, lobbying by former FCC officials, and the effect of
bankruptcy on spectrum auctions. See, story titled "Sen. McCain Introduces Telecom Bill"
in TLJ Daily E-Mail Alert No. 681, June 16, 2003. The agenda also includes
the "Commercial Spectrum Enhancement Act", which the House has already
passed. See, story, titled "House Passes Commercial Spectrum Enhancement Act"
in TLJ Daily E-Mail Alert No. 679, June 12, 2003. Press contact: Rebecca Hanks
(McCain) 202 224-2670 or Andy Davis (Hollings) at 202 224-6654. Location: Room
253, Russell Building.
9:30 AM. The Federal Communications
Commission (FCC) will hold a meeting. The
agenda [2 pages in PDF] includes consideration of an Eighth Report
regarding the status Commercial Mobile Services (CMS) competition (WT Docket
No. 02-379), a Third Report and Order and Second Further Notice of Proposed
Rulemaking regarding issues raised by proposed revisions to satellite and
earth station license application forms (IB Docket Nos. 02-34 and 00-248), and
a Report and Order regarding it rules regulating unsolicited advertising by
telephone and facsimile machine (CG Docket No. 02-278). The meeting will be
webcast. Location: FCC, 445 12th Street, SW, Room TW-C05 (Commission Meeting
10:00 AM. The Senate Finance
Committee will hold a hearing to examine the
nominations of Josette Shiner to be a Deputy United States Trade
Representative, and James Jochum to be an Assistant Secretary of
Commerce. Location: Room 215, Dirksen Building.
TIME? The Senate
Government Affairs Committee will hold a meeting to consider the nomination of
Joshua Bolton to be Director of the
Office of Management and Budget
|Friday, June 27
The House will meet at 9:00 AM for legislative business. See,
Republican Whip notice.
9:00 AM. The Progress and Freedom Foundation
(PFF) will host a conference titled "Net Neutrality: Consumer Protection or
Commercial Ploy?". At 9:00 AM,
Nancy Victory, Director of the
National Telecommunications and Information
Administration (NTIA), will give the opening keynote address. At 9:30 AM,
there will be a panel titled "Industry Perspectives on the Need for Regulating
Broadband Networks". The participants will include Paul Misener (Amazon),
Robert Sachs (National Cable &
Telecommunications Association), Tom Tauke (Verizon), and Jeffrey Campbell (Cisco Systems). At 10:45 AM, there will be a
panel titled "Economic and Public Policy Perspectives on the Need for
Regulating Broadband Networks". The participants will include
(Stanford Institute of Economic Policy Research),
Joseph Farrell (University
of California at Berkeley), and David Scheffman (Bureau of Economics, Federal
Trade Commission). See,
Location: J.W. Marriott Hotel.
Day long meeting of the Federal
Communications Commission's (FCC) Consumer Advisory Committee.
Deadline to submit comments to the U.S.
Patent and Trademark Office (USPTO) in response to its
notice of proposed changes to its rules of practice to implement the
inter partes reexamination provisions, and other patent related
(107th Congress), the 21st Century Department of Justice Appropriations
Authorization Act, which President Bush signed on November 2, 2002. For more
information, contact Kenneth Schor at 703 308-6710. See, Federal Register,
April 28, 2003, Vol. 68, No. 81, at Pages 22343 - 22353.
|Monday, June 30
The House will be in recess from June 30 through July 4 for the
Independence Day District Work Period. The Senate will be in recess also.
The Securities and Exchange Commission's
(SEC) rule changes that require that reports by insiders disclosing their
securities holdings be filed electronically with the SEC become effective. The
SEC stated in an April 24
release that it "voted to mandate the electronic filing of beneficial
ownership reports filed by officers, directors and principal security holders
under Section 16(a) of the Securities Exchange Act of 1934, and to require
issuers with corporate websites to post these reports. Electronic filing and
website posting of these reports will result in earlier public notification of
insiders' transactions and wider public availability of information about
those transactions. The new rules and amendments implement the requirements of
Section 16(a)(4), as amended by Section 403 of the Sarbanes Oxley Act of
Deadline to submit comments to the U.S.
Patent and Trademark Office (USPTO) in response to its notice of proposed
rule making regarding regulation under the Patent Cooperation Treaty. The
USPTO published a
notice in the Federal Register stating that it proposes 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 ..." See, Federal Register, May
30, 2003, Vol. 68, No. 104, at pages 32441 - 32448.
|Tiger Woods' Licensing Agent Cannot Stop
Sale of "Masters of Augusta"
6/20. The U.S.
Court of Appeals (6thCir) issued its split
v. Jireh Publishing, a trademark case involving the sale of a painting.
ETW Corporation is the licensing agent
for Eldrick "Tiger" Woods, the famous golfer. Jireh Publishing markets copies of sports
painting created by Rick Rush. Rush painted a picture titled "Masters of
Augusta", which commemorates Tiger Woods' victory at the Masters Tournament in
Augusta, Georgia in 1997. ETW holds a trademark registration for the mark
"Tiger Woods". However, the mark does not appear in the painting.
Also, the painting
and associated materials all specify that Rick Rush is the source. Tiger Woods
is represented in the painting, as are others, including other great golfers
ETW filed a complaint in U.S. District Court (NDOhio)
against Jireh alleging trademark infringement in violation of the Lanham Act, 15
U.S.C. § 1114; dilution of the mark under the Lanham Act, 15 U.S.C. §1125(c);
unfair competition and false advertising under the Lanham Act, 15 U.S.C.
§1125(a); unfair competition and deceptive trade practices under Ohio statute;
unfair competition and trademark infringement under Ohio statute; and, violation
of Woods's right of publicity under Ohio common law. The District Court granted Jireh's motion for summary judgment and dismissed the case. ETW appealed.
The Appeals Court affirmed on all issues, after
a lengthy analysis of each Lanham Act issue, and the right of publicity. One
judge dissented, arguing that there are material issues of fact in dispute that
should be tried by a jury.
|People and Appointments
6/20. President Bush announced that he will name Scott McClellan to be
Assistant to the President and White House Press Secretary. He is currently a
Deputy Assistant to the President and the Principal Deputy White House Press
Secretary. He will replace Ari Fleischer. See,
House release and
statement by President Bush.
6/23. The Federal Communications Commission
(FCC) published a
notice in the Federal Register summarizing its
Opinion and Order (MOO) [3 pages in PDF] denying a petition for reconsideration of its
May 16, 2002
Report and Order (RO) [PDF] in its proceeding titled "In the matter of
Amendment of Part 15 of the Commission's Rules Regarding Spread Spectrum
Devices". See, Federal Register, June 23, 2003, Vol. 68, No.120, at Pages 37093
- 37094. The FCC adopted this MOO on May 27, and released it on May 30, 2003.
The Second RO became effective on July 25, 2002. This
Second RO 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,
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.
Petition for Reconsideration [4 pages in PDF] was filed by Warren Havens and Telesaurus Holdings GB, LLC, d/b/a LMS Wireless.
6/23. The Federal Communications Commission
(FCC) published a
notice in the Federal Register summarizing its Order terminating, without
prejudice as to its substantive merits, it proceeding regarding radio
frequency (RF) lighting devices operating in the 2.2-2.8 MHz and 2400-2500
MHz bands. See, Federal Register, June 23, 2003, Vol. 68, No. 120, at Pages
37112 - 37113. The FCC adopted this Order on May 27, and released it on May 30,
2003. This was ET Docket No. 98-42.
|About Tech Law Journal
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