|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.
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
The U.S. Trade
negotiated these FTAs. Zoellick (at right) stated in a
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
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
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
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
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,
|Presidential Commission Reports on USPS and
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
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
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
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
Ed Black, P/CEO of Computer & Communications
(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
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
|Qualcomm Sues TI Over Production of CDMA
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
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
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
8/1. The Senate confirmed Josette Shiner to be a Deputy U.S. Trade
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
7/31. The Senate confirmed Brent McKnight to be a Judge of the
District Court for the Western District of North Carolina.
7/31. The Senate confirmed Xavier Rodriguez to be a Judge of the
District Court for the Western District of Texas.
7/31. The Senate confirmed James Browning to be a Judge of the
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
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,
7/24. John McKinley was named Chief Technology Officer (CTO) and President,
AOL Technologies. See, AOL TW
|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
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
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.
statement of Sen. Patrick Leahy
(D-VT), the ranking Democrat on the
Senate Judiciary Committee, regarding the vote on the Pryor nomination, and
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,
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 firstname.lastname@example.org.
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,
|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
email@example.com. 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.
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
Court of Appeal (6) issued its
opinion [MS Word] in
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 China.com, 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
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
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
[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".
|About Tech Law Journal
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