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August 4, 2003, 9:00 AM ET, Alert No. 710.
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Senate Passes Singapore and Chile FTAs

7/31. The Senate passed HR 2738, the "United States-Chile Free Trade Agreement Implementation Act", by a vote of 66-31. See, Roll Call No. 319. The Senate passed HR 2739, the "United States-Singapore Free Trade Agreement Implementation Act" by a vote of 66-32. See, Roll Call No. 318. The House passed both bills on July 23.

Sen. Max Baucus (D-MT) stated in a release that "These are the first trade agreements the Senate has considered under the renewed fast-track procedures in the Trade Act of 2002 adopted last year during my Chairmanship of the Finance Committee. They are the first agreements to be held to the new and progressive standards included in that Act. In areas from intellectual property, services, and e-commerce to agriculture, labor, and environment, they are truly state-of-the-art. That does not mean the Singapore and Chile texts will work for agreements with other countries."

Robert ZoellickThe U.S. Trade Representative (USTR), Robert Zoellick, negotiated these FTAs. Zoellick (at right) stated in a release that "Congressional approval of the Chile and Singapore free trade agreements gives us fresh momentum as we approach the midpoint of global trade negotiations at the WTO Ministerial meeting in Cancun. The Chile and Singapore free trade agreements eliminate tariffs, tackle non-tariff barriers, open services markets, strengthen intellectual property rights for knowledge industries, and improve labor and environmental protections. These agreements level the playing field for U.S. businesses, provide more choices and better value for American consumers, and add fresh momentum to the global drive for open markets."

Zoellick added that "In addition to our bilateral negotiations, the United States will continue to press for free markets globally, through the WTO negotiations and hemispherically, through the creation of a Free Trade Area of the Americas."

Secretary of Commerce Donald Evans issued a statement: "President Bush believes that free trade means new, higher paying jobs for American workers and stronger economic growth for the American economy. The Chile and Singapore Free Trade Agreements will build on our economy's strengths while sending an important signal to the world that America is serious about expanding free trade and creating new opportunities for our workers, farmers, ranchers and businesses."

Both agreements contain provisions relating to protections of intellectual property rights, electronic commerce, and telecommunications. See, texts of the U.S. Singapore Free Trade Agreement and the U.S. Chile Free Trade Agreement.

Robert Holleyman, P/CEO of the Business Software Alliance (BSA), stated in a release that "These agreements not only represent a critical step in trade liberalization with Singapore and Chile, they set important precedents for future agreements with trading partners around the world ... In these agreements, new baselines have been set for copyright protection and e-commerce, which should lead to significant market opportunities for the U.S. IT industry in the years ahead."

William Archey, P/CEO American Electronics Association (AeA), stated in a release that "Implementation of these agreements will result in significant market-opening in Chile and Singapore to U.S. high-tech products and services by eliminating tariffs, streamlining customs procedures, improving regulatory transparency, increasing intellectual property protections, opening up government procurement, promoting the development of electronic commerce, and liberalizing trade in services."

The Entertainment Industry Coalition for Free Trade (EIC), a group formed recently to represent the movie, record, and other entertainment industry sectors, stated in a release [PDF] that these two FTAs "provide standards of copyright protection for the modern digital age, and require that these countries ensure that intellectual property protection is meaningful in practice through strong enforcement. These agreements also provide commercially meaningful trade commitments with the elimination of tariff and customs barriers to all U.S. entertainment products, and groundbreaking provisions with respect to digital products."

GSA Disbars MCI WorldCom From Competing for New Government Contracts

7/31. The General Services Administration (GSA) announced its "proposed debarment of MCI WorldCom from receiving new Federal government contracts". See, GSA release.

The GSA stated that it "has been closely monitoring the MCI WorldCom bankruptcy and allegations related to fraudulent conduct. On June 2, 2003, GSA's Office of Inspector General recommended that the agency's suspension and debarment official consider whether the company met the standard required of all government contractors of being ``presently responsible,´´ and therefore, eligible to compete for new government contracts. After careful review of the Inspector General's referral and all relevant information available, this official determined that MCI WorldCom lacks the necessary internal controls and business ethics. Accordingly, the proposed debarment has been issued which triggers an immediate suspension of the company's eligibility to compete for new Federal government contracts."

The GSA added that MCI WorldCom "is immediately prohibited from competing for new government contracts", and that "The company may, within 30 days, challenge the decision."

MCI WorldCom responded that "it accepts the General Services Administration's (GSA) decision for proposed debarment, which will not affect MCI's ability to serve its existing federal government customers." See, release.

Presidential Commission Reports on USPS and E-Mail

7/31. The President's Commission on the United States Postal Service issued a report [208 pages in PDF] titled "Embracing the Future, Making the Tough Choices to Preserve Universal Mail Service". The report recommends modernization, and revising the rules governing the USPS. It recommends maintaining the postal monopoly for small physical items, and having the USPS focus on these. It also recommends that the USPS stop providing electronic and internet based bill presentment and payment, money transfers, certified mail, and data transmission services.

The executive summary states that "The laws governing the Postal Service have not been substantially revised in more than 30 years. These rules were written well before the Internet offered a cheaper, faster form of correspondence and far in advance of the Information Revolution’s profound leaps in technology-driven opportunities to reduce costs. Now is the time to revisit these rules and modernize the Postal Service to not only preserve its future, but also to enhance its service to all Americans."

The report concludes that "a postal monopoly remains essential to the reliable, affordable provision of universal postal service today", but also that "the Postal Service be restricted to products and services related to the delivery of letters, newspapers, magazines, advertising mail, and parcels."

The report recommends using new technologies, including the internet, to modernize delivery of physical items. It states that "By placing a unique barcode on every piece of mail and investing in technologies throughout the postal network that can put that information to use to enhance customer service and reduce costs, the Postal Service can begin building a truly digital network that links postal facilities, vehicles, partners and employees not only to each other, but also via the Internet to customers and to the mail itself."

The report elaborates that "By applying the sophistication of the electronic world to the physical mail, the Postal Service can develop a new postal proposition for the 21st century, known as Intelligent Mail, and make its advantages available to all customers. Intelligent Mail could allow the Postal Service to permit mail-tracking and other in-demand services via a robust website that ultimately becomes the equivalent of an always open, full service post office. Intelligent mail also can significantly improve mail security through enhanced traceability, and could lead to substantial savings through sophisticated, real-time logistics management. Adopting this system will lead to the development of ``personalized´´ stamps that digitally embed basic information (such as the sender, the class of mail, and the destination) to enable a highly automated and efficient journey."

The report also addresses e-mail communications. It states that "In 2002, the volume of First-Class Mail (single-piece letters and bulk mail) -- which accounts for more than half of all Postal Service revenues -- declined for the first time in more than a quarter century."

"Electronic substitution is the primary reason long term First-Class Mail volumes are threatened. The initial rise of the Internet, e-mail, instant messaging and other communications trends siphoned away a large share of personal, one-to-one correspondence." The report adds that "As Americans become increasingly comfortable doing more complex correspondence on-line, the subcategory of First-Class Mail now most vulnerable to erosion is bill payment. Businesses have a strong incentive to encourage this trend: processing a digital payment over the Internet costs between one-third and one-half less than a check sent through the mail."

Finally, the report includes an insert titled "Is E-mail a Postal Service?" It states that "The world has greatly benefited from the revolution in correspondence precipitated by the rapid rise of electronic mail. Nevertheless, a Postal Service governed by a law written before the Internet as we know it even existed has led to some ... confusion. The 1970 Act may be read to provide broad authority to the Postal Service to be entrepreneurial in pursuing its self-financing mandate. However, the online revolution dramatically blurred the lines of what constitutes a "postal service," producing some dubious forays.

It continues that the USPS "Sells Postal Service-branded electronic bill presentment and payment services; Explored offering Internet-based tax services and money transfers; Offers certified electronic mail and on-line greeting cards; Contemplated offering e-mail and other data transmission services."

The report concludes that "These ventures have produced largely disappointing results. Also of concern, each of these markets is served by private companies who do not have the backing of the U.S. government and a national postal monopoly. These efforts also have drained time and resources that could have been spent improving traditional postal services. For this reason, the Commission recommends focusing the Postal Service on traditional mail, leaving electronic products and services to a well-served and innovative private marketplace."

Ed Black, P/CEO of Computer & Communications Industry Association (CCIA) praised the report. He stated in a release that "We are very pleased that the Commission has listened to our concerns about the Postal Service’s forays in to electronic commerce and other commercially competitive ventures, and believe the Commission’s recommendation demonstrates their concern about these activities as well ... With an infrastructure established though the U.S. Treasury, taxpayer subsidies, statutory protections, and the government-sponsored Postal Monopoly, the Postal Service’s entrance into these markets is both unfair to private companies and consumers, as well as detrimental to competition and innovation."

10th Circuit Holds AOL May Have Violated ADA By Not Hiring Deaf Person for Call Center

7/30. The U.S. Court of Appeals (10thCir) issued its opinion in Davidson v. AOL, reversing the District Court's summary judgment that America Online did not violate the Americans with Disabilities Act (ADA) when it declined to hire a deaf person for its Ogden, Utah call center.

George Davidson is a deaf person who sought employment with America Online in its call center in Ogden, Utah in a non voice phone position. This was a primarily voice call center. AOL did, however, have primarily non voice phone call center in Philippines. Once AOL opened its Philippines call center, it did not make external hires in Utah for non voice phone positions. AOL did not hire Davidson, either when he applied in 1997, or again when he applied in 1998.

Davidson filed a complaint in the District Court in Utah against AOL alleging violation of the Americans with Disabilities Act (ADA), codified at 42 U.S.C. §§ 12101-12213. The District Court granted summary judgment to AOL. It held that the 1997 claim was time barred. It held that Davidson failed to establish a prima facie case of discrimination because he was not "qualified, with or without reasonable accommodation, to perform the essential functions of the positions that were offered to and open for external hires". And, it held that it would be an unreasonable accommodation to force AOL to restructure its hiring practices as requested by Davidson.

The Appeals Court reversed. Filing administrative claim within 300 days of the challenged action is a prerequisite to bringing an action under the ADA. The Appeals Court held that Davidson had not met this requirement as to the 1997 claim, and therefore affirmed the District Court in this issue. (The 1998 claim was not time barred.)

The Appeals Court ruled that the District Court erred in granting AOL summary that Davidson had not established a prima facie case of discrimination. The Appeals Court held that in the present case the question of whether Davidson is a "qualified individual" is a question of fact for the jury.

The Appeals Court also ruled that the District Court erred in granting AOL summary judgment on the accommodation issue. And hence, the Court reversed and remanded.

Qualcomm Sues TI Over Production of CDMA Chips

7/25. Qualcomm filed a complaint in state court in Delaware against Texas Instruments (TI) alleging breach of a December 2000 patent portfolio agreement.

Qualcomm stated in a release that the "agreement covers both companies' patent portfolios, providing rights to each company to supply integrated circuits on a worldwide basis for all wireless standards". Qualcomm further stated that the complaint "seeks damages and termination of Texas Instruments' rights under the agreement".

Joseph Hubach, SVP, Secretary and General Counsel of TI, stated in a release on July 28 that "We have reviewed the complaint against TI and feel it is without merit. We will contest it vigorously. We believe this complaint may be motivated by TI's recent announcement that we will begin sampling cdma2000 1X chips to a broad range of customers. Qualcomm has enjoyed many years of selling CDMA chips against little or no competition. TI intends to establish this market as a level playing field in which open competition prevails and consumers benefit. This is the case in every other wireless market in which TI competes. Qualcomm's legal maneuvers will not distract us from pursuing the CDMA market."

See also, TI release of May 15, 2003 stating that TI and STMicroelectronics (STM) "will offer ICs, based on technology developed jointly with Nokia that together compose standard CDMA chipsets. The chipset ICs will be marketed by ST and TI to handset manufacturers worldwide for cdma2000 1X and 1xEV-DV (1x Evolution for Data and Voice) mobile Internet handsets."

People and Appointments

8/1. The Senate confirmed Joel David Kaplan to be Deputy Director of the Office of Management and Budget (OMB). See, OMB release [PDF].

8/1. The Senate confirmed Josette Shiner to be a Deputy U.S. Trade Representative.

8/1. The Senate confirmed James Jochum to be an Assistant Secretary of Commerce.

8/1. David Shillman was named an Associate Director of the Division of Market Regulation of the Securities and Exchange Commission (SEC). He will direct, with Elizabeth King, the Division's Office of Market Supervision. He replaces Alden Adkins, who left the SEC at the end of March. See, SEC release.

7/31. The Senate confirmed Brent McKnight to be a Judge of the U.S. District Court for the Western District of North Carolina.

7/31. The Senate confirmed Xavier Rodriguez to be a Judge of the U.S. District Court for the Western District of Texas.

7/31. The Senate confirmed James Browning to be a Judge of the U.S. District Court for the District of New Mexico.

8/1. President Bush nominated Sandra Townes to be a Judge of the U.S. District Court for the Eastern District of New York. See, White House release. The President had previously announced his intent to nominate Townes. She is currently a Justice of the Appellate Division, Second Department (Brooklyn), in New York State. Before that, she was a Judge of the 5th Judicial District (Syracuse), in New York State. Before that, she was a Judge of the Syracuse City Court. And before that, she was an Assistant U.S. Attorney in Syracuse. Her nomination is supported by Sen. Charles Schumer (D-NY), who is a member of the Senate Judiciary Committee. See, Schumer release. Her nomination is also supported by New York Governor George Pataki. See, Pataki release.

7/31. The Senate confirmed former Rep. Connie Morella (R-MD) to be the U.S. representative to the Organization for Economic Cooperation and Development (OECD).

8/1. Adam Falkoff was named Senior Director of Legislative Affairs at the Consumer Electronics Association (CEA). He will represent the CEA before the executive branch, Congress, and Federal Communications Commission (FCC) on spectrum allocation, digital rights management, HDTV compliance, and fair use. Rebecca Ellis was named Director of Environmental & Legal Affairs at the CEA. She will represent CEA at the state, national and international levels on environmental issues, including electronics recycling and energy use. Douglas Johnson was promoted to Senior Director, Technology Policy at the CEA. See, CEA release.

7/24. John McKinley was named Chief Technology Officer (CTO) and President, AOL Technologies. See, AOL TW release.

Senate Democrats Continue Filibusters of Pryor, Estrada and Owen Nominations

8/1. Senate Democrats continue their long running filibuster of some of President Bush's judicial nominees. On July 31, the Senate rejected a motion to invoke cloture on the nomination of William Pryor to be a Judge of the U.S. Court of Appeals for the 11th Circuit by a vote of 53-44. See, Roll Call No. 316. Senate Democrats are filibustering a vote on confirmation. Invoking cloture is the only method for terminating a filibuster. Pursuant to Senate Rule 22, a cloture motion requires a three fifths majority for passage.

On July 30, the Senate rejected a motion to invoke cloture on the nomination of Miguel Estrada to be a Judge of the U.S. Court of Appeals for the District of Columbia by a vote of 55-43. See, Roll Call No. 312.

On July 29, the Senate rejected a motion to invoke cloture on the nomination of Priscilla Owen to be a Judge of the U.S. Court of Appeals for the 5th Circuit by a vote of 53-43. See, Roll Call No. 308.

The circuits which currently handle the most technology related cases are the 9th Circuit, which includes California, the 4th Circuit, which includes Virginia, and the District of Columbia Circuit, which hears many petitions for review of final orders of federal agencies, such as the Federal Communications Commission (FCC) and the Federal Trade Commission (FTC). The DC Circuit also hears many non agency technology cases, such as the Eldred case regarding copyright terms, and the Microsoft antitrust case. It is also likely to soon hear RIAA v. Verizon, regarding use of DMCA subpoenas in the context of peer to peer music copying on the internet.

Also, more Supreme Court nominees are selected from the DC Circuit than any other Circuit. Clarence Thomas, Antonin Scalia, Ruth Ginsburg, Douglas Ginsburg, Robert Bork and Warren Burger were, or had been, Judges on the DC Circuit when they were nominated for the Supreme Court.

Hence, with respect to technology related cases, the nomination of Miguel Estrada is particularly important, while the nominations of William Pryor and Priscilla Owen are less significant.

Estrada is a partner in the Washington DC office of the law firm of Gibson Dunn & Crutcher. See, GDC biography. He previously worked in the Department of Justice's (DOJ) Office of the Solicitor General. See also, DOJ biography.

On August 1, President Bush released a statement on Senate filibusters of his judicial nominees. "This week, a minority of Senators continued to filibuster highly qualified judicial nominees who enjoy the support of a majority of Senators. These obstructionist tactics are unprecedented, unfair, and unfaithful to the Senate's constitutional responsibility to vote on judicial nominees."

He continued that "These highly qualified nominees have stellar records that represent the mainstream of American law and values, and strong bipartisan support from those who know them best. Instead of allowing an up-or-down vote, a minority of Senators have been filibustering Miguel Estrada for nearly five months and Priscilla Owen for three months, and are now obstructing the nomination of Bill Pryor. The failure to hold votes on these nominations not only is inconsistent with the Senate's constitutional responsibility, but also has caused extended judicial vacancies that are harmful to the American judicial system."

"Every judicial nominee should receive an up-or-down vote in the full Senate, no matter who is President or which party controls the Senate. It is time to move past the partisan politics of the past, and do what is right for the American legal system and the American people. Let each Senator vote how he or she thinks best, but give the nominees a vote", said Bush.

See also, statement of Sen. Patrick Leahy (D-VT), the ranking Democrat on the Senate Judiciary Committee, regarding the vote on the Pryor nomination, and statement regarding the Owen vote.

Several Senate Democrats have voted to end some or all of the filibusters, including Sen. Zell Miller (D-GA), Sen. John Breaux (D-LA), Sen. Ben Nelson (D-NE), and Sen. Bill Nelson (D-FL).

Monday, August 4

The House is in recess until September 3. Senate is in recess until September 2. The Supreme Court is in recess.

Tuesday, August 5

10:00 AM - 12:00 NOON. The Department of State's (DOS) International Telecommunication Advisory Committee (ITAC) will meet to prepare for the meeting of the International Telecommunications Union's ITU-D, Study Groups 1 and 2, in Geneva, Switzerland on September 2-11, 2003. See, notice in Federal Register, July 22, 2003, Vol. 68, No. 140, at Page 43413. Location: DOS, Room 2533-A.

Wednesday, August 6

9:30 AM. The Federal Communications Commission (FCC) will hold a meeting. See, agenda [PDF]. Location: FCC, 445 12th Street, SW, Room TW-C05 (Commission Meeting Room).

Deadline to submit comments to the Federal Communications Commission (FCC) in response to its Notice of Inquiry [21 pages in PDF] in its proceeding titled "In the Matter of Inquiry Regarding Carrier Current Systems, including Broadband over Power Line Systems". See, notice in the Federal Register, May 23, 2003, Vol. 68, No. 100, at Pages 28182 - 28186. See also, story titled "FCC Announces NOI Regarding Broadband Over Powerlines" in TLJ Daily E-Mail Alert No. 628, April 24, 2003, and story titled "FCC Releases NOI on Broadband Over Power Lines" in TLJ Daily E-Mail Alert No. 656, May 7, 2003.This is ET Docket No. 03-104. For more information, contact Anh Wride at 202 418-0577 or

POSTPONED. The Federal Communications Commission (FCC) will hold an auction of Direct Broadcast Satellite (DBS) Service Licenses. This is Auction No. 52. See, notice of postponement in Federal Register, June 20, 2003, Vol. 68, No. 119, at Page 36989.

Thursday, August 7

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Microsoft v. Multi-Tech Systems, No. 03-1138, and Multi-Tech Systems v. Net2Phone, No. 03-1139. This is an appeal from the U.S. District Court (DMinn) in a patent infringement case involving data communications technology. Location: Courtroom 201, 717 Madison Place, NW.

10:00 AM - 12:00 NOON. The Federal Communications Commission (FCC) Office of Engineering and Technology (OET) will sponsor a tutorial titled "Fiber to the Home Technology". Location: FCC, 445 12th Street, SW, Room TW-C05 (Commission Meeting Room). See, notice [PDF].

Friday, August 8

Deadline to submit comments to the Federal Communications Commision (FCC) in response to its notice of proposed rulemaking (NPRM) [7 pages in PDF] regarding the draft Nationwide Agreement [28 pages in PDF] of the FCC, the Advisory Council on Historic Preservation, and the National Conference of State Historic Preservation Officers, regarding undertakings for communications facilities, including communications towers and antennas, under the National Historic Preservation Act (NHPA). This proceeding is titled "In the matter of Nationwide Programmatic Agreement Regarding the Section 106 National Historic Preservation Act Review Process". It is WT Docket No. 03-128. For more information, contact Frank Stilwell at 202 418-1892 or See, story titled "FCC Announces NPRM Regarding Communications Facilities and the National Historic Preservation Act" in TLJ Daily E-Mail Alert No. 677, June 10, 2003. See also, notice in the Federal Register, July 9, 2003, Vol. 68, No. 131, at Pages 40876 - 40887.

California Court Allows Service of Complaint By Mail on Chinadotcom in Hong Kong

7/30. The California Court of Appeal (6) issued its opinion [MS Word] in Denlinger v. Chinadotcom, a case regarding the validity of service of process by registered mail upon defendants located in Hong Kong.

Peter Denlinger is a former employee of, an entity related to Chinadotcom. Peter Hamilton, Peter Yip Hak Yung, and Raymond Ch'ien are directors and officers of Chinadotcom. Chinadotcom is incorporated in the Cayman Islands, and has its offices in Hong Kong.  Hamilton, Hak and Ch'ien work and reside in Hong Kong.

Denlinger filed a complaint in state court in California against Chinadotcom, related corporate entities, and Hamilton, Hak and Ch'ien, alleging wrongful termination.

Denlinger served the complaint and summons upon defendants by by registered mail in Hong Kong. The defendants moved to quash the service of summons. The trial court held that the service was invalid.

The Court of Appeal held that Article 10(a) of The Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters allows service of process by mail, and therefore reversed.

This is Denlinger v. Chinadotcom, No. H024577, an appeal from the Superior Court for Santa Clara County, Super. Ct. No. CV804169, Judge Jamie May presiding.

More News

8/1. The National Oceanic and Atmospheric Administration (NOAA) published a notice in the Federal Register that describes and recites its final rule regarding use of its space based data collection systems (DCS), including use in support of homeland security, national security, and law enforcement. The NOAA operates geostationary satellites and polar orbiting satellites with global coverage, for weather forecasting, climate research and search and rescue. See, Federal Register, August 1, 2003, Vol. 68, No. 148, at Pages 45160 - 45164.

8/1. Sen. Charles Grassley (R-IA), Sen. Orrin Hatch (R-UT), Sen. John Breaux (D-LA), Sen. Bob Graham (D-FL), and Sen. Trent Lott (R-MS) sent a letter [2 pages in PDF] to U.S. Trade Representative (USTR) Robert Zoellick urging him to initiate negotiations with Colombia on a U.S. Colombia free trade agreement.

7/31. The Radio Music License Committee (RMLC) and Broadcast Music Inc. (BMI) announced in a release that they have reached an agreement "on new commercial radio station blanket and per program licenses for the musical works in BMI's repertoire. The agreement settles a rate proceeding commenced in 1999 by the RMLC in the Federal District Court in New York."

7/31. The Senate Commerce Committee approved S 1478, the "National Telecommunications and Information Administration Reauthorization Act of 2003".

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