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June 24, 2003, 9:00 AM ET, Alert No. 686.
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Supreme Court Upholds Children's Internet Protection Act

6/23. The Supreme Court issued its opinion [56 pages in PDF] in US v. American Library Association, upholding the constitutionality of the Children's Internet Protection Act (CIPA) [20 pages in PDF], which provides that for libraries to receive federal subsidies or grants, they must use internet filtering technologies.

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 others.

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 complaint [64 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 analysis.

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 the filter."

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 assistance.

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 fact."

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 in a 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 HR 2517, 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 infringement.

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 Computer 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 for infringement.

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."

Rep. Lamar SmithRep. 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 Rep. Tom 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 submitted ..."

Existing law contains a definition of "critical infrastructure information". The Leahy/Frank bill would replace it with a narrower definition of "critical infrastructure".

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 S 1293, 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 S 877, 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.

Sen. Orrin HatchSen. 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 S8238.

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 egregious wrongdoers."

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 Edwards (D-NC).

The was no issue of the TLJ Daily E-Mail Alert on Monday, June 23, 2003.
Bills Introduced to Provide Grants for Community Telecom Planning

6/19. Sen. Patti Murray (D-WA) and others introduced S 1294, the "Community Telecommunications Planning Act of 2003". Rep. Jay Inslee (D-WA) and others introduced the companion bill in the House, HR 2530.

These two bills authorize the appropriations of funds to the Department of Commerce, the Department of 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 economy."

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, S 1056 (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 00-248.

The FCC will consider a Report and Order regarding it rules regulating unsolicited advertising by telephone and facsimile machine. This is CG Docket No. 02-278.

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 HR 1416, 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 "Network Access: 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 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.

POSTPONED. 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 HR 1561, 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 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, notice. Location: 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.

DELAYED. The Federal Communications 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 - 28826.

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, court calendar [PDF].

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 HR 1320, 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 Room).

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 (OMB).

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 Bruce Owen (Stanford Institute of Economic Policy Research), Joseph Farrell (University of California at Berkeley), and David Scheffman (Bureau of Economics, Federal Trade Commission). See, PFF notice. 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 provisions, of HR 2215 (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 2002."

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 opinion in ETW 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 from history.

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, White House release and statement by President Bush.

More News

6/23. The Federal Communications Commission (FCC) published a notice in the Federal Register summarizing its Memorandum Opinion and Order (MOO) [3 pages in PDF] denying a petition for reconsideration of its May 16, 2002 Second 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, 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 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.

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