|FCC Extends Effective Date of Portions of
New Unsolicited Fax Rule
8/18. The Federal Communications
Commission (FCC) adopted and released an
Order on Reconsideration [6 pages in PDF] in its proceeding titled "In the
Matter of Rules and Regulations Implementing the Telephone Consumer Protection
Act of 1991". This Order on Reconsideration amends the FCC's recent Report
and Order pertaining to unsolicited faxes. It extends the effective date of the
Report and Order's determination that an established business relationship will
no longer be sufficient to show that an individual or business has given express permission
to receive unsolicited faxes. This is CG Docket No. 02-278.
This Order on Reconsideration pertains to the FCC's
Report and Order [164 pages in PDF], which was adopted on June 26, 2003, and
released on July 3, 2003. The Report and Order amends the FCC's rules
implementing the Telephone Consumer Protection Act (TCPA). The Report and Order
addresses several subjects, including unwanted telephone solicitations,
establishment of a national do not call registry, transmission of caller ID
information, and unsolicited faxes. See, Paragraphs 185-203, which address
unsolicited faxes, and Appendix A, which contains the rules changes.
The FCC published a
notice in the Federal Register on July 25, 2003 regarding this Report and
Order. It provides that the effective date of the unsolicited faxes provisions
is August 25, 2003. See, Federal Register, July 25, 2003, Vol. 68, No. 143, at
Pages 44143 - 44179.
The FCC's Order on Reconsideration (OR) states that "we issue
this limited reconsideration of the Report and Order and extend, until January
1, 2005, the effective date of our determination that an established business
relationship will no longer be sufficient to show that an individual or business
has given express permission to receive unsolicited facsimile advertisements. We
also extend, until January 1, 2005, the effective date of amended rule 47 C.F.R. §
The OR elaborates that "Section 64.1200(a)(3)(i), as amended, requires
the sender of a facsimile advertisement to first obtain from the recipient a signed,
written statement that includes the facsimile number to which any advertisements may be sent and
clearly indicates the recipient's consent to receive such facsimile advertisements from the
The OR also offered an explanation for the extension. It states that "many
organizations may need additional time to secure this written permission from
individuals and businesses to whom they fax advertisements."
The OR adds that "the only effective dates of the Commission's
Report and Order extended by this Order are: 1) the determination that an
established business relationship will no longer be sufficient to show that an individual or
business has given express permission to receive unsolicited facsimile advertisements; and 2) the
requirement that the sender of a facsimile advertisement first obtain the recipient’s express
permission in writing. Therefore, until the amended rule at 47 C.F.R. § 64.1200(a)(3)(i) becomes
effective on January 1, 2005, an established business relationship will continue to be sufficient
to show that an individual or business has given express permission to receive facsimile
advertisements. The effective date of our amended definition of an ``established business
relationship´´ is not affected by our determination here."
|4th Circuit Affirms Dismissal of Antitrust
Action Against Washington Post
8/18. The U.S.
Court of Appeals (4thCir) issued its unpublished
opinion [13 pages in PDF] in
v. Gazette Newspapers, in which the Appeals Court affirmed the
District Court's dismissal of an antitrust action against the Washington Post and
subsidiaries. This action pertains to regional weekly print publications, and not
to either the Washington Post daily print newspaper, or the Washington Post web
Berlyn, Inc., and other plaintiffs are small, community oriented, weekly print
newspaper publishers in the Washington DC and Baltimore areas.
The Washington Post Company publishes the
Washington Post. It also owns The
Gazette Newspapers, Inc., which publishes numerous weekly, community newspapers
in the area. The Gazette is a 50% owner of the
Washington and Baltimore Suburban Press Network, Inc. (Press Network), which is
an organization designed to provide advertisers with one-stop shopping for
placing ads in a series of local papers throughout the region.
The plaintiffs filed a complaint in the
U.S. District Court (DMd) against the
Washington Post, Gazette, and Press Network alleging violations of federal
and state antitrust laws. The complaint also includes state law claims of unfair competition, breach of
contract, and tortious interference with contract.
More specifically, the plaintiffs alleged violations of Section 1 of
the Sherman Act (15
U.S.C. § 1), Section 2 of the Sherman Act (15
U.S.C. § 2), Section 7 of the Clayton Act (15
U.S.C. § 18), and Section 11-204(a)(1) of the Maryland Antitrust Act. They
alleged that the Press Network's bylaws, which gave Gazette effective veto power
over which newspapers could become members of the Press Network, violated
Section 1 of the Sherman Act. They alleged that the Gazette and the Washington
Post have been engaged in an attempt to monopolize, and they and the Press
Network have conspired to monopolize the community newspapers business
throughout Southern Maryland, including Prince George's and Montgomery Counties,
in violation of Section 2 of the Sherman Act. They also alleged that the
Gazette's acquisition of a regional newspaper in southern Maryland violated
Section 7 of the Clayton Act.
The District Court dismissed all claims.
The Court of Appeals affirmed. It wrote that "Two essential elements of
Appellants' federal and state antitrust claims are proof of the relevant product
and geographic markets. ... That is, in order to determine whether any antitrust
violation has occurred, ``we must first define the relevant market because the
concept of competition has no meaning outside its own arena, however broadly
that arena is defined. The plaintiff in an antitrust case bears the burden of
proof on the issue of the relevant product and geographic markets.´´ ... A
relevant product market ``is composed of products that have reasonable
interchangeability for the purposes for which they are produced ...´´"
The Court summarized the plaintiffs' argument as follows: "the
product market consists of the legal and commercial advertising services
provided by weekly community newspapers and the Post Company's Extra. Excluded
from this proposed market are other forms of print advertising, such as direct
mail and fliers, along with non-print media advertising on radio or local cable
The Court wrote that this is a flawed argument. "The consumers
in this case are the advertisers, and from the advertisers' perspectives, direct
mail and other forms of advertising may well be ``reasonably interchangeable.´´"
The Appeals Court also wrote that "There is an additional,
fundamental weakness with Appellants' definition of the relevant product market.
While their market definition is underinclusive as explained above, it is also
overinclusive, because it places legal advertising in the same market as
commercial advertising." The Court therefore concluded that the plaintiffs "have
failed to meet their burden to establish the relevant product market".
The Appeals Court also held that the plaintiffs' allegation of per se
violation of the Sherman Act fails. Therefore, the District Court was correct to dismiss the
The Appeals Court also wrote that "Unpublished opinions are not binding precedent
in this circuit. See Local Rule 36(c)."
However, it is not apparent from the text of the opinion why the Appeals Court
designated this opinion as "unpublished".
This case is Berlyn, Inc. et al. v. The Gazette Newspapers, Inc., Washington Post,
No. 02-2152, an appeal from the U.S. District Court for the District of Maryland, at
Baltimore, Judge Frederic Smalkin presiding, D.C. No. CA-01-606-S.
|BXA Announces Fine of Computer Exporter
8/18. The Bureau of Industry and Security
(BIS), which is also still known as the Bureau of Export Administration (BXA),
announced an action pertaining to E&M Computing
Ltd. The BIS stated that it charged E&M with violating the Export
Administration Regulations (EAR) by selling and servicing computers and computer
components to customers in Israel, including a nuclear research center.
The BIS stated in a
that it "charged that E&M caused the export of central processing units (CPUs),
a workstation, a server, and a high performance computer to Israel without the
required export licenses. BIS also charged that E&M evaded the EAR by purchasing
computers from another vendor after learning that BIS would deny the first
vendor’s license application to export the items."
The BIS stated that it fined E&M $165,000, and that it imposed a three year
denial of export privileges, but suspended the denial, for three years.
|People and Appointments
8/18. Former Rep. Steve Largent (R-OK) will replace Tom Wheeler as P/CEO of
the Cellular Telecommunications & Internet
Association (CTIA), effective November 2003. Largent is a former member of the
House Commerce Committee, and
its Telecommunications and Internet Subcommittee. He resigned at the end of 2001
to run for Governor of Oklahoma. He lost in the general election. See, CTIA
Marsha MacBride (at right) is resigning as Chief of Staff of the
Federal Communications Commission
(FCC). She has worked at the FCC since 1991. She has been Chief of Staff since
January of 2001, when Michael
Powell became Chairman. She worked for Disney before joining the FCC. The
release [PDF] announcing her resignation did not state what she will do
|NTIA Releases Report to Congress Re Internet
8/18. The National Telecommunications and
Information Administration (NTIA) released a
report to Congress titled "Children's Internet Protection Act: Study of
Technology Protection Measures". See also, NTIA
The Children's Internet Protection Act (CIPA), which the Congress passed in
October of 2000, requires, at Section 1703, that the NTIA prepare this report.
The CIPA requires that schools and libraries
receiving federal subsidies for telecommunications, internet access or internal
connections adopt an internet safety policy and employ technological protections
that block or filter certain visual depictions deemed obscene, pornographic, or
harmful to minors. The CIPA also requires the NTIA to (1) evaluate whether the
technology measures currently available adequately address the needs of
educational institutions, and (2) evaluate the development and effectiveness of
local Internet safety policies. The NTIA first requested and received comments
from the public.
concludes that "currently available technology measures have the capacity to
meet most, if not all, of [the] needs and concerns" expressed by commenters. The
report elaborates that "Based on the comments, existing technology protection
measures are helping to meet the concerns of educational institutions to protect
children from inappropriate materials they may encounter while using the
Internet. The occurrence of overblocking and underblocking, however, has
resulted in some dissatisfaction and frustration by users with the existing
technology protection measures."
See, for example,
comment submitted by the Center for Democracy
and Technolgy ("filtering technology and products will both overblock and
underblock access to Internet content with respect to any content-based
comment submitted by the American Library
Association ("No filtering tool exists which can be perfectly calibrated to
block out only material that is not protected by the Constitution, without
blocking access to material that has constitutional protection.").
The report also makes two legislative recommendations. First, "Technology
vendors should offer training services to educational institutions on the
specific features of their products." Second, "CIPA's
definition of ``technology protection measure´´ should be expanded to include more
than just blocking and filtering technology in order to encompass a vast array
of current technological measures that protect children from inappropriate
|Tuesday, August 19
The House is in recess until September 3. Senate is in recess until
September 2. The Supreme Court is in recess until October 6.
Deadline to submit reply comments to the Federal
Communications Commission (FCC) in response to its notice of proposed
rulemaking, released on April 30, 2003, regarding changes to its rules
implementing the FCCs policy to carry forward unused funds from the schools
and libraries universal support mechanism (aka e-rate subsidies) in subsequent
funding years. See,
notice in the Federal Register, June 20, 2003, Vol. 68, No. 119, at Pages
36961 - 36967.
|Wednesday, August 20
10:00 AM. Federal Communications Commission
(FCC) Chairman Michael
Powell will hold a news conference to "discuss issues that the FCC
will be taking up in the Fall". Location: FCC, Commission Meeting Room, 445
12th Street, SW.
12:00 NOON. Gordon England, Deputy Secretary of the
Department of Homeland Security (DHS), will
give a speech titled "Leading the Department of Homeland Security: Progress
and Challenges of Transition during the War on Terrorism". See,
Location: Lehrman Auditorium: Heritage
Foundation, 214 Massachusetts Ave NE.
|Thursday, August 21
9:30 AM. The U.S. District Court (DC)
will hold an initial conference in EPIC v. DHS, D.C. No. 1:2003cv1255.
The Electronic Privacy Information Center (EPIC)
filed suit against the Department of Homeland
Security (DHS) under the Freedom of Information Act (FOIA). Location: Courtroom
11, 333 Constitution Ave. NW.
10:00 AM. Ed Thomas, Chief of the Federal
Communications Commission's (FCC) Office
of Engineering and Technology (OET) will hold a press briefing and tour at
the FCC's Columbia, Maryland laboratory facility. For more information,
contact Lauren Van Wazer at 202 418-0030 or
7435 Oakland Mills Road, Columbia, MD.
2:00 PM. The U.S. District Court (DC)
will hold an status conference in Communications Workers of America v.
Verizon, D.C. No. 1:2001cv2633. Location: Courtroom 11, 333 Constitution
|Friday, August 22
Deadline to submit comments to the
Department of Homeland Security's (DHS) Bureau of Customs and Border
Protection (CBP) regarding its proposed rule to require that CBP must receive,
by electronic data interchange system, information pertaining to cargo before
the cargo is either brought into or sent from the U.S. by any mode of
commercial transportation. See,
notice in the Federal Register, July 23, 2003, Vol. 68, No. 141, at Pages
43573 - 43606.
|Monday, August 25
10:00 AM - 4:00 PM. The Commerce Department's National Medal of Technology
Nomination Evaluation Committee will hold a closed meeting to discuss the
relative merits of persons and companies nominated for the medal. See,
notice in the Federal Register, July 24, 2003, Vol. 68, No. 142, at Page
43716. Location: Room 4813, U.S. Department of Commerce, 1401 Constitution
8/18. The U.S. Trade
Representative (USTR) released an
[3 pages in PDF] regarding the
Ministerial Conference of the World Trade
Organization (WTO) scheduled for September 10-14, 2003 in Cancún, Mexico.
This document provides information for persons planning to attend as
representatives of non-government organizations.
8/18. The U.S.
Court of Appeals (7thCir) issued its
[34 pages in PDF] in Learning Curve Toys v. Playwood Toys, a trade secrets case. Playwood Toys, which make toy trains, filed a complaint in the
U.S. District Court (NDIll) against
Learning Curve Toys. It obtained a jury verdict for misappropriation of a trade
secret, and awarding 8% for a license that would have been negotiated, absent
the misappropriation. The District Court granted judgment as a matter of law,
holding that PlayWood did not have a protectable trade secret. The Appeals Court
reversed, and reinstated the jury verdict. This is Learning Curve Toys, Inc. v. Playwood Toys, Inc., No. 02-1916, an appeal from
the U.S. District Court for the Northern District of Illinois, Eastern Division,
D.C. No. 94 C 6884, Judge Rebecca Pallmeyer presiding.
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