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June 25, 2003, 9:00 AM ET, Alert No. 687.
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Supreme Court Grants Certiorari in Nixon v. Missouri Municipal League

6/23. The Supreme Court granted certiorari in Nixon v. Missouri Municipal League, and related petitions, regarding 47 U.S.C. § 253(a) and state statutes that prohibit political subdivisions from offering telecommunications services. See, Order List [12 pages in PDF] at page 2.

The three consolidated petitions are Nixon v. Missouri Municipal League (S.C. No. 02-1238 ), FCC v. Missouri Municipal League (S.C. No. 02-1386), and Southwestern Bell v. Missouri Municipal League (S.C. No. 02-1405). The Court ordered that "The petitions for writs of certiorari are granted. The cases are consolidated and a total of one hour is allotted for oral argument."

In these petitions, the Nixon (as Attorney General of Missouri), the Federal Communications Commission (FCC), and Southwestern Bell, each sought review of the opinion [11 pages in PDF] of the U.S. Court of Appeals (8thCir) in Missouri Municipal League v. FCC, 299 F.3d 949 (2002). See, FCC's petition for writ of certiorari [71 pages in PDF], Nixon's petition for writ of certiorari [37 pages in PDF], and the respondents' brief in opposition [PDF] to granting certiorari.

The 8th Circuit vacated an FCC Memorandum Opinion and Order [18 pages in PDF] denying a request that it preempt a Missouri statute that prohibits political subdivisions of the state from offering telecommunications services. The 8th Circuit held that the term "any entity" in 47 U.S.C. § 253(a) includes political subdivisions of states. See, story titled "8th Circuit Rules States Cannot Bar Municipalities From Providing Telecom Services" in TLJ Daily E-Mail Alert No. 492, August 15, 2002.

The opinion of the 8th Circuit is in conflict with the opinion of the U.S. Court of Appeals (DCCir) in City of Abilene v. FCC, 164 F.3d 49 (1999). The FCC, by a Memorandum Opinion and Order, also known as the Texas Preemption Order, declined to preempt a Texas statute that is very similar to the Missouri statute. The City of Abilene and others filed a petition for review with the U.S. Court of Appeals (DCCir). The DC Circuit issued its opinion in 1999 upholding the FCC order.

Missouri Statutes, Section 392.410(7), provides that, subject to certain enumerated exceptions, "No political subdivision of this state shall provide or offer for sale, either to the public or to a telecommunications provider, a telecommunications service or telecommunications facility used to provide a telecommunications service for which a certificate of service authority is required pursuant to this section."

47 U.S.C. § 253(a) provides that "No State or local statute or regulation, or other State or local legal requirement, may prohibit or have the effect of prohibiting the ability of any entity to provide any interstate or intrastate telecommunications service." (Emphasis added.)

Various municipalities and municipal organizations filed a petition with the FCC asking that it preempt this statute for being in violation of § 253(a).

The FCC denied the request to preempt by Memorandum Opinion and Order (MOO) released on January 12, 2001. (This is CC Docket No. 98-122.) The FCC wrote that "We do not preempt the enforcement of HB 620 to the extent that it limits the ability of municipalities or municipally owned utilities, acting as political subdivisions of the state of Missouri, from providing telecommunications services or facilities. As we found in the Texas Preemption Order, the term ``any entity´´ in section 253(a) of the Act was not intended to include political subdivisions of the state, but rather appears to prohibit restrictions on market entry that apply to independent entities subject to state regulation."

The FCC added that "municipal entry into telecommunications could raise issues regarding taxpayer protection from economic risks of entry, as well as questions concerning possible regulatory bias when a municipality acts as both a regulator and a competitor."

The municipal entities then filed a petition for review with the Court of Appeals. Southwestern Bell and Nixon (Missouri) intervened in support of the FCC. The National Association of Telecommunications Officers and Advisors (NATOA) and the United Telecom Council supported the municipal parties, as amici curiae.

The Appeals Court vacated the FCC order, and remanded. It reasoned that "The dispute hinges on the meaning of the phrase ``any entity´´ in § 253 of the Act. More precisely, do the words ``any entity´´ plainly include municipalities and so satisfy the Gregory plain statement rule? We hold that they do."

The Supreme Court held in Gregory v. Ashcroft, that a court must not construe a federal statute to preempt traditional state powers unless Congress has made its intention to do so unmistakably clear in the language of the statute.

The Appeals Court concluded "that because municipalities fall within the ordinary definition of the term ``entity,´´ and because Congress gave that term expansive scope by using the modifier ``any,´´ individual municipalities are encompassed within the term ``any entity´´ as used in § 253(a)."

Other States. Missouri is not the only state that bans local governments from providing telecommunications services. Nor were the petitions for writ of certiorari in the Missouri case the only petitions received by the Supreme Court. Also on June 23, the Supreme Court denied certiorari, without opinion, in Nebraska Telecommunications Association v. Lincoln, Nebraska, a related case arising in the state of Nebraska. See, Order List [12 pages in PDF] at page 9.

This case is Nebraska Telecommunications Association and Nebraska Cable Communications Association v. City of Lincoln, Nebraska, S.C. No. 02-1591.

Nebraska has a law prohibiting a political subdivision of the state from holding a permit as a contract carrier of intrastate telecommunications service. See, Neb. Rev. Stat. §§ 86-128(1)(b) and 86-575(2) (Cum. Supp. 2002), and In re Lincoln Electric System, 655 N.W.2d 363 (Neb. 2003).

See also, amicus brief [24 pages in PDF] in the Nebraska case submitted by the Independent Telephone and Telecommunications Alliance (ITTA), National Telecommunications Cooperative Association (NTCA), U.S. Telecom Association (USTA), and the Organization for the Promotion and Advancement of Small Telecommunications Companies (OPASTCO).

See also, Iowa Tel. Ass'n. v. City of Hawarden, 589 N.W. 2d 245 (Iowa 1999).

International Trade Negotiations. In March, 2003, the U.S. Trade Representative (USTR) made an "Initial Offer" [120 pages in PDF] to the World Trade Organization (WTO) regarding opening access to telecommunications, information, and other services. The USTR states in the section regarding "basic telecommunications services" that the U.S. would commit to "Maintain an absence of national government ownership in public telecommunications service suppliers". See, story titled "USTR Proposes to Liberalize Trade in Telecommunication and Information Services" in TLJ Daily E-Mail Alert No. 655, May 5, 2003.

More Supreme Court News

6/23. The Supreme Court denied certiorari, without opinion, in Dickson v. Microsoft, a class action against Microsoft and original equipment manufacturers (OEMs) alleging violation of antitrust laws. This is S.C. No. 02-1305. See, Order List [12 pages in PDF] at page 8.

6/23. The Supreme Court released several opinions and an order list on Monday, June 23, 2003, and announced that "The Court will take a recess from today until Thursday, June 26, 2003." See, Order List [12 pages in PDF] at page 12.

Representatives Baird & Inslee Introduce ICANN Bill

6/19. Rep. Brian Baird (D-WA) and Rep. Jay Inslee (D-WA) introduced HR 2521, the "Fair, Transparent, and Competitive Internet Naming Act of 2003". The bill would require the Comptroller General to conduct a study regarding "the business practices, procedures, accountability, and administration" of the Internet Corporation for Assigned Names and Numbers (ICANN).

This study would examine whether the ICANN has operated in accordance with the terms of the Memorandum of Understanding (MOU) between the U.S. Department of Commerce and ICANN, whether the MOU provides for adequate oversight by the federal government, and whether persons and entities would be better served by a different relationship between the ICANN and the federal government (such as would exist with application of the Administrative Procedure Act or the Federal Advisory Committee Act to the ICANN).

The study would also examine whether "any decision by ICANN to approve the request of a private entity to manage and operate a Wait Listing Service for expired Internet domain names is consistent with the purpose and principles of the Memorandum of Understanding, whether any such decision would have the effect of awarding a monopoly to such private entity, and the effects any such decision would have on existing Internet domain name registrars and on other users of the Internet."

The bill would also impose a moratorium on the Department of Commerce. It provides that the "(1) Secretary of Commerce may not take any action to alter the system and procedures for registration of Internet domain names from such system in effect on June 19, 2003, and any action taken during such period before the date of the enactment of this Act may not be given any effect during the remainder of such period, and (2) any decision or determination to alter such system, including by providing for any entity to implement a Wait Listing Service of domain name registration, and any authority granted to alter such system, shall not be effective during such period, regardless of whether such decision or determination is made before or after the date of the enactment of this Act."

Rep. Baird issued a release which states that "Domain Registrars across the country have expressed concern over ICANN’s recent agreement to implement an exclusive Wait List Service (WLS) for customers interested in registering domain names that are in use by others. Customers may currently purchase ‘expired’ domain names through a number of registrar firms. If the WLS becomes reality, as currently envisioned by ICANN, domain registrars around the country will be edged out of competition. This agreement is contrary to competition principles detailed in the very same Memorandum of Understanding that provided ICANN with control of the DNS."

The Comptroller General is the head of the General Accounting Office (GAO), which is the audit, evaluation, and investigative arm of the Congress. The bill was referred to the House Commerce Committee.

U.S. Focuses on Trade and Tech in Islamic Nations

6/24. On June 23, U.S. Trade Representative (USTR) Robert Zoellick gave a speech [PDF] at the World Economic Forum in Amman, Jordan. He stated that "in a nearby valley, adjacent to the campus of Jordan University, you can see the offices of Estarta Solutions, where 170 Jordanians are busy developing advanced business software. This dynamic company produces a variety of products, from Arabic word processors for Macintosh computers to banking software. Last year, under the U.S.-Jordan Free Trade Agreement, Estarta earned $1 million in export sales to the United States, and Microsoft announced that it would be making a major investment in the company."

He continued that "The president and co-founder of this start-up, Ennis Rimawi, is one of a new generation who are making their mark as innovators and entrepreneurs in the global economy. Rimawi and his colleagues are reviving a proud past -- when the Middle East was the vibrant core of global trade -- and charting a brighter future: for Jordan, the Middle East, and the world."

See also, Microsoft release of May 22, 2002.

Zoellick noted the economic success of Arab Americans living in the U.S., and concluded that "A rebirth of commerce and intellectual discovery awaits only an awakening of economic liberty throughout their homelands."

Robert ZoellickZoellick (at right) added that "Open markets and trade have a long lineage in this part of the world. The Holy Quran urges the faithful to ``Let there be trading by mutual consent.´´"

Zoellick was also in Bahrain. On June 19 he held a press conference with Bahrain Minister of Finance and National Economy Abdullah Saif. Zoellick said that "we're very proud about the prospect of launching a free trade agreement with Bahrain." See, transcript.

He stated that when the U.S. negotiates free trade agreements, "we make then very comprehensive economic partnerships". He said that in addition to removing "all tariffs or taxes on goods or agriculture ... we also try to open up the services market, we try to have a high standard for intellectual property, we try to develop openness in transparency rules, we try to open up government procurement ..."

He added that "our agreement will not only deal with goods and services, but will deal with concepts about e-commerce."

He was asked when a U.S. Bahrain FTA will be signed. He responded that "we have to negotiate it first". However, he added that "we believe that the steps that Bahrain has already taken to open up its economy, to strengthen its intellectual property rights, to open up its telecommunications system could mean that we hope we can proceed relatively quickly ..."

In addition, Pakistan's President Pervez Musharraf traveled to Washington DC and met with President Bush on June 24. The White House press office released a document which states that "A Trade and Investment Framework Agreement will be concluded to create a formal structure that will expand our bilateral economic partnership and promote investment. An additional $75 million in private sector lending to Pakistan will be guaranteed by OPIC. A Five-year trade capacity-building program will be launched under the auspices of the U.S. Department of Commerce Commercial Law Development Program." It also provides that "A Science and Technology Agreement will be concluded to promote cooperation in these areas, especially in support of scientific exchanges."

Musharraf stated at a joint press conference with President Bush that "As a result of this commitment, two important agreements will be signed during my visit to the United States. One relates to the trade and investment framework agreement, the TIFA, which would help move towards an eventual free trade agreement, the FTA." He added that "The other relates to an agreement on cooperation in the field of science and technology, which would provide impetus to growth and development." See, transcript.

Amici File Brief In Support of RIAA in DMCA Subpoena Case

6/20. The Motion Picture Association of America (MPAA) and other groups filed an amicus curiae brief [38 pages in PDF] with the U.S. Court of Appeals (DCCir) in Verizon v. RIAA, arguing that a 17 U.S.C. § 512(h) subpoena may be used to obtain the identity of an anonymous peer to peer infringer from his ISP.

The brief concludes that "In the DMCA, Congress, after years of considering the competing issues involved, took on the latest threat to copyright -- balancing the tremendous benefits of the Internet and digital technology against the very significant risks they pose to the intellectual property of present and future copyright owners. One cannot find in Title II the purported right to anonymity that Verizon invokes on behalf of the serial infringers at issue in this proceeding, and the others who are similarly inflicting massive injury on copyright owners. For the reasons set forth above, the Court should decline the invitation to create such a right. Amici respectfully submit that the Court should affirm the District Court’s Orders."

Amici also include the Business Software Alliance (BSA) and the Digital Software Association. The amici also include other groups representing musicians, artitists, actors, photographers, writers, directors and publishers. Amici also include the National Football League, and the Commissioner of Baseball. The brief was prepared by Paul Gaffney and Manish Mital of the law firm of Williams & Connolly.

See also, TLJ story titled "District Court Rules That A DMCA § 512(h) Subpoena for the Identity of an P2P Infringer Does not Violate the Constitution", April 24, 2003; TLJ story titled "District Court Rules DMCA Subpoenas Available for P2P Infringers", January 21, 2003; and TLJ story titled "Verizon and Privacy Groups Oppose RIAA Subpoena", August 30, 2002.

District Court Enters Final Judgment in US v. Village Voice and NT Media

6/19. The U.S. District Court (NDOhio) entered its Final Judgment in U.S.A. v. Village Voice Media and NT Media, an antitrust action involving an agreement between two publishers of weekly city newspapers and web sites to allocate markets. The Final Judgment bars them from taking any action in furtherance of their agreement.

On January 27, 2003, the Department of Justice's (DOJ) Antitrust Division (ATR) filed a complaint in District Court against NT Media (which publishes the New Times weekly city newspapers and web sites) and the Village Voice Media (which publishes the Village Voice weekly city newspapers and web sites) alleging violation of Section 1 of the Sherman Act, 15 U.S.C. § 1. The two count complaint alleges both per se and rule of reason violations of Section 1.

The two companies entered into an agreement to allocate markets. NT agreed to shut down a newspaper in Los Angeles, and in return, Village Voice agreed to shut down a newspaper in Cleveland. The complaint alleges that "The agreements contained essentially identical ``Non-Competition´´ clauses in which each Defendant agreed not to publish an alternative newsweekly in the other Defendant's market for at least ten years. Each Defendant also agreed not to solicit or attempt to induce advertisers to advertise in a competing publication over the next decade."

The parties also agreed to use the web sites of the closed publications to redirect Internet traffic to the web sites of the former competitors. The complaint alleges that "The written agreements further required each Defendant to redirect traffic on its closed newsweekly's website to the other Defendant's website for one year, and to state prominently on its website that its alternative newsweekly was no longer in circulation."

At the time of the filing of the complaint the parties also agreed to a proposed consent decree. See, Hold Separate Stipulation and Order and proposed Final Judgment (PFJ).

On February 12, 2003, the DOJ published a notice in the Federal Register of its PFJ and Competitive Impact Statement. See, Federal Register, February 12, 2003, Vol. 68, No. 29, at Pages 7132-7147.

See also, story titled "DOJ Files Antitrust Complaint Against Newspaper and Web Site Publishers for Allocation of Markets" in TLJ Daily E-Mail Alert No. 592, January 28, 2003.

More News

6/24. The U.S. Court of Appeals (2ndCir) issued its opinion in Courtenay Communications v. Hall, a trademark case involving the mark "iMarketing News". Courtenay filed a complaint in U.S. District Court (SDNY) against Patricia Hall and Hallmark Capital Corporation alleging violations of Section 43(a) of the Lanham Act, 15 U.S.C. § 1125( a), and state law claims of libel per se, breach of fiduciary duty, and conversion. The District Court concluded that the mark is generic and not entitled to trademark protection. The District Court declined to exercise supplemental jurisdiction over the state law claims, and dismissed the complaint. Courtenay appealed. The Court of Appeals reversed and remanded.

Some subscribers' e-mail systems blocked yesterday's issue. It is not in the TLJ website. See, TLJ Daily E-Mail Alert No. 686, June 24, 2003.
9th Circuit Construes Section 230 Immunity in Suit Against Listserv Operator

6/24. The U.S. Court of Appeals (9thCir) issued its opinion [41 pages in PDF] in Batzel v. Smith, a case involving the application of California's Anti-SLAPP statute to a suit alleging defamation on an internet listserv. The District Court denied a defendant's motion to dismiss under the Anti-SLAPP statute. The Appeals Court, relying upon the federal interactive computer service immunity provision of 47 U.S.C. § 230(c)(1), vacated and remanded.

Background. Defendant Robert Smith is a handyman who was hired by plaintiff Ellen Batzel. Smith wrote an e-mail to the Museum Security Network in which he stated that "A month ago, I did a remodeling job for a woman, Ellen L. Batzel who bragged to me about being the grand daughter of 'one of Adolph Hitler's right-hand men.' At the time, I was concentrating on performing my tasks, but upon reflection, I believe she said she was the descendant of Heinrich Himmler. Ellen Batzel has hundreds of older European paintings on her walls, all with heavy carved wooden frames. She told me she inherited them. I believe these paintings were looted during WWII and are the rightful legacy of the Jewish people." (Paragraph breaks removed.) Batzel disputes Smith's account.

Defendant Ton Cremers, was the Director of Security at the Rijksmuseum in Amsterdam and the sole operator of the Museum Security Network, which maintains a web site and an e-mailed newsletter about museum security and stolen art. He published Smith's e-mail on the Network's listserv. He determined which e-mails to publish. He also made some minor changes to Smith's e-mail. Smith also later stated that he never imagined that his e-mail would be published on the listserv.

District Court. Batzel filed a complaint in U.S. District Court (CDCal) against Smith, Cremers, and others alleging defamation. Federal jurisdiction is based upon diversity of citizenship. Cremers filed a motion to strike under the California Anti-SLAPP statute alleging that Batzel's suit was meritless and that the complaint was filed in an attempt to interfere with his First Amendment rights. The District Court denied his motion. In particular, the District Court held that the Network is not an "interactive computer service" within the meaning of § 230. Cremers filed this appeal.

Statutes. California's Anti-SLAPP (Strategic Lawsuits against Public Participation) statute is codified at Cal. Civ. Proc. Code § 425.16. It provides for the early dismissal of lawsuits that masquerade as ordinary lawsuits,  but are brought to deter common citizens from exercising their political or legal rights or to punish them for doing so.

§ 230(c)(1) provides that "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider."

§ 230 defines "interactive computer service" as "any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions."

Court of Appeals. The Appeals Court reviewed the legislative history of § 230, its purposes, and cases that have applied it. The Court was not enthusiastic about the policy justifications for the immunity provision of § 230. Nevertheless, it applied it to vacate the District Court.

The Court wrote that "There is no reason inherent in the technological features of cyberspace why First Amendment and defamation law should apply differently in cyberspace than in the brick and mortar world. Congress, however, has chosen for policy reasons to immunize from liability for defamatory or obscene speech ``providers and users of interactive computer services´´ when the defamatory or obscene material is ``provided´´ by someone else. This case presents the question whether and, if so, under what circumstances a moderator of a listserv and operator of a website who posts an allegedly defamatory e-mail authored by a third party can be held liable for doing so."

The Appeals Court vacated and remanded to the District Court. However, the Appeals Court did not address whether a listserv fits the definition of "interactive computer service". Nor did the Appeals Court conclude that Cremers has § 230 immunity. It concluded that the factual records needs to be further developed. It vacated the District Court.

The Court reasoned that "There is, however, no need here to decide whether a listserv or website itself fits the broad statutory definition of ``interactive computer service,´´ because the language of § 230(c)(1) confers immunity not just on ``providers´´ of such services, but also on ``users´´ of such services. There is no dispute that the Network uses interactive computer services to distribute its on-line mailing and to post the listserv on its website. Indeed, to make its website available and to mail out the listserv, the Network must access the Internet through some form of ``interactive computer service.´´ Thus, both the Network website and the listserv are potentially immune under § 230."

The Court continued, "Critically, however, § 230 limits immunity to information ``provided by another information content provider.´´ § 230(c)(1). An ``information content provider´´ is defined by the statute to mean ``any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service.´´ § 230(f)(3). The reference to ``another information content provider´´ (emphasis added) distinguishes the circumstance in which the interactive computer service itself meets the definition of ``information content provider´´ with respect to the information in question. The pertinent question therefore becomes whether Smith was the sole content provider of his e-mail, or whether Cremers can also be considered to have ``creat[ed]´´ or ``develop[ed]´´ Smith's email message forwarded to the listserv."

"Obviously, Cremers did not create Smith's e-mail. Smith composed the e-mail entirely on his own. Nor do Cremers’s minor alterations of Smith's e-mail prior to its posting or his choice to publish the e-mail (while rejecting other e-mails for inclusion in the listserv) rise to the level of ``development.´´ As we have seen, a central purpose of the Act was to protect from liability service providers and users who take some affirmative steps to edit the material posted. Also, the exclusion of ``publisher´´ liability necessarily precludes liability for exercising the usual prerogative of publishers to choose among proffered material and to edit the material published while retaining its basic form and message."

The Court concluded that "The ``development of information´´ therefore means something more substantial than merely editing portions of an e-mail and selecting material for publication. Because Cremers did no more than select and make minor alterations to Smith’s e-mail, Cremers cannot be considered the content provider of Smith's e-mail for purposes of § 230."

However, the Appeals Court did not then go on to conclude that Cremers has § 230 immunity, and therefore reverse the District Court. It stated that the analysis is further complicated by Smith's statement that he did not expect his e-mail to be published on the listserv. The Appeals Court wrote that "The question thus becomes whether Smith can be said to have ``provided´´ his e-mail in the sense intended by § 230(c). If the defamatory information is not ``provided by another information content provider,´´ then § 230(c) does not confer immunity on the publisher of the information."

The Court provided detailed guidance to the District Court on this question. It vacated the District Court, and remanded to allow the District Court to further develop the facts, and apply this opinion to those facts.

The Appeals Court also addressed at length issues not covered in this article, including jurisdiction and whether the denial of the Anti-SLAPP motion can be appealed prior to final judgment in the underlying case.

Wednesday, June 25

The House will meet at 10:00 AM for legislative business. See, Republican Whip notice.

8:30 AM - 3:00 PM. The Center for Strategic and International Studies (CSIS) will host a conference titled "IT Leadership: Homeland, Cyber Security". The speakers will include Bill Gates (Microsoft), who will give the luncheon keynote address, and Robert Liscouski (Assistant Secretary of Homeland Security for Infrastructure Protection). See, notice and agenda. Press contact: Mark Schoeff at 202 775-3242 or Location: CSIS, 1800 K Street, NW, B-1 conference level.

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). See, notice. 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 Representative for Asia-Pacific and APEC Affairs. Location: Room 2172, Rayburn Building.

11:30 AM. The House Homeland Security Committee's Subcommittee Subcommittee on Cybersecurity, Science, and Research & Development Subcommittee on Cybersecurity, Science and Research & Development will hold a hearing titled "Overview of the Cyber Problem: A Nation Dependent and Dealing with Risk". Press contact: Vince Sollitto or Liz Tobias at 202 226-9600 Location: Room 2318, Rayburn Building.

POSTPONED. 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.

1:00 PM. Rep. Zoe Lofgren (D-CA) and Rep. John Doolittle (R-CA) will hold an event to announce the introduction of HR __, the "Public Domain Enhancement Act". Other speakers will include Lawrence Lessig (Stanford Law School) and Gigi Sohn (Public Knowledge). Rep. Lofgren stated in a release that the bill addresses "the need to reform copyright issues that were identified in the recent Supreme Court decision of Eldred v. Ashcroft". Location: Cannon Terrace, Cannon Building.

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.

The EU-US summit will begin. 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.

The Senate Judiciary Committee will hold an executive business meeting. The agenda includes consideration of the nominations of William Pryor to be a Judge of the U.S. Court of Appeals (11thCir) and Thomas Hardiman to be a Judge of the U.S. District Court (WDPenn). Press contact: Margarita Tapia at 202 224-5225. Location: Room 226, Dirksen 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.

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.

Tuesday, July 1

8:30 AM - 5:15 PM. The U.S. Department of Commerce will host a one day conference on the U.S. India high tech cooperation titled "Financing Innovation Forum". The speakers will include Phil Bond (Under Secretary of Commerce for Technology), Kenneth Juster (Under Secretary of Commerce in charge of the Bureau of Industry and Security), and Sam Bodman (Deputy Secretary of the Department of Commerce). See, notice and agenda. Location: Ronald Reagan Building International Trade Center.

Deadline to submit reply comments to the Federal Communications Commission (FCC) regarding News Corp.' proposed acquisition of an interest in DirecTV. See, FCC notice [7 pages in PDF], and story titled "FCC Sets Deadlines for Comments on News Corp.'s DirecTV Deal" in TLJ Daily E-Mail Alert No. 664, May 19, 2003. This is MB Docket No. 03-124. For more information, contact Marcia Glauberman at or 202 418-7046 or Linda Senecal at or 202 418-7044.

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