|ILECs File Petitions for Writ of Mandamus
Challenging Triennial Review Order
8/29. On August 28, the U.S. Telecom Association (USTA),
Qwest filed a petition
for writ of mandamus with the U.S. Court
of Appeals (DCCir) seeking a stay of part of the
Federal Communications Commission's (FCC) recently released
triennial review order [576 pages in PDF]. This petition
was filed in the Appeals Court proceeding numbered 00-1012 (consolidated
proceedings). These pertain to the petitions for review of the FCC's previous
unbundling order. The present petition asserts that the triennial review order
flouts and defies the previous opinion of the Court, and seeks a writ of
mandamus staying part of the order. Also on
August 28, Verizon filed a parallel
petition for writ of mandamus with the same court, seeking broader relief.
This is an unusual procedure to follow. While both filings challenge the
recently released triennial review order (TRO), neither of these filings is a petition
for review of any part of the TRO. Indeed, at the close of business on Friday,
August 29, no petition for review of
the FCC's TRO had been filed with the Clerk of the U.S. Court of Appeals (DCCir).
Background. The FCC announced its
triennial review order [576 pages in PDF] on February 20, 2003, but did not
release the text until August 21, 2003. See,
titled "Summary of FCC Triennial Review Order", also published in TLJ
Daily E-Mail Alert No. 725, August 25, 2003. See also, stories titled "FCC
Announces UNE Report and Order", "FCC Order Offers Broadband Regulatory
Relief", "FCC Announces Decision on Switching", "Commentary:
Republicans Split On FCC UNE Order", and "Congressional Reaction To
FCC UNE Order" in TLJ
Daily E-Mail Alert No. 609, February 21, 2003.
The TRO addressed many subjects. While much of the coverage of the TRO in TLJ
has focused on the broadband related provisions, the petitions for writ of
mandamus go to the provisions regarding unbundled network element platform, or
This TRO is the third time that the FCC has promulgated rules regarding
UNE-P. The first came shortly after the Congress enacted the Telecom Act of
1996, which created unbundling obligations of incumbent local exchange carriers
(ILECs), such as Verizon, SBC, Qwest and BellSouth. Unbundled network elements (UNEs)
are those portions of telephone networks that the ILECs must make available to
competing carriers, such as AT&T and
WorldCom. The 1996 Act provides that
ILECs must provide access to certain of their network elements at regulated
47 U.S.C. §
251(c)(3) provides that ILECs have "The duty to provide, to any requesting
telecommunications carrier for the provision of a telecommunications service,
nondiscriminatory access to network elements on an unbundled basis at any
technically feasible point on rates, terms, and conditions that are just,
reasonable, and nondiscriminatory in accordance with the terms and conditions of
the agreement and the requirements of this section and section 252 of this
title. An incumbent local exchange carrier shall provide such unbundled network
elements in a manner that allows requesting carriers to combine such elements in
order to provide such telecommunications service."
Then, 47 U.S.C. 251(d)(2)
provides that "In determining what network elements should be made available for
purposes of subsection (c)(3) of this section, the Commission
shall consider, at a minimum, whether --
(A) access to such network elements as are proprietary in
nature is necessary; and
(B) the failure to provide access to such network elements
would impair the ability of the telecommunications carrier seeking access to
provide the services that it seeks to offer."
The Supreme Court vacated the FCC's first unbundling order in
AT&T v. Iowa
Utilities Board, 525 U.S. 366 (1999).
The FCC then promulgated its second unbundling order, in its proceeding
titled "Implementation of the Local Competition Provisions of the
Telecommunications Act of 1996"; see, Third Report and Order and Fourth Further
Notice of Proposed Rulemaking, published at 15 FCC Rcd 3696 (1999). But, the
U.S. Court of Appeals (DCCir) vacated this order in
USTA v. FCC, 290 F.3d 415 (2002). And, the Supreme Court denied certiorari.
The FCC then promulgated it third unbundling order, contained in the just
The FCC voted 3-2 on the UNE-P provisions of the TRO, with
Chairman Michael Powell and Commissioner
Kathleen Abernathy dissenting. The
arguments advanced by the ILECs in their petitions for writ of mandamus parallel
those of Powell and Abernathy in their dissents.
Chairman Powell stated on February 20, 2003 that the order "flouts the D.C.
Circuit mandate" in USTA v. FCC, and that "The legal errors
of today's decision are many to my mind". See, Powell
Powell continued that "I find a Commission majority for the third time in seven years
substituting its preferences for a heavily permissive unbundling regime for Congress's judgment
that no element should be provided unless the Commission can affirmatively conclude
that a competitor is impaired without it. The Supreme Court admonished that the FCC
had to put forth a meaningful limiting principle in making its decisions. The
Commission’s second attempt also failed, when the D.C. Circuit vacated our rules last
summer. The court emphasized that the Commission could not treat unbundling as an unqualified
good and had to consider the social costs as well. It also admonished that the
standard employed and applied by the FCC had to demonstrate that a typical entrant was
effectively prohibited from entering the market due to barriers associated with the
monopoly power of the incumbent and not just typical start up costs or costs naturally
associated with entry. Today, the majority flouts the D.C. Circuit mandate."
Powell also wrote that "The legal errors of today’s decision are many to my mind, but I
emphasize a few of the most egregious. First, the majority places switching on
the list without making an affirmative finding of impairment based on a thorough analysis
of sufficiently granular criteria. Cleverly, they state only a presumption that there is
impairment that can subsequently be addressed by state commission proceedings to
either defeat the presumption and take switching off the list, or affirm it and
leave switching on the list. Remarkably, however, the national rule requires the switching
element on little more than a presumptive intuition and even fails to really apply the
Commission’s own articulated impairment standard. I believe this to be reversible error."
Commissioner Abernathy stated on February 20, 2003 that
there is a "significant prospect that the majority’s
approach will not survive judicial scrutiny." See,
statement [PDF]. She then went on to outline the reasons that it is
inconsistent with the statute.
Petitioners' Arguments. The USTA petition argues that "For seven
years, incumbent telephone companies have been forced to share all elements of
their networks with competitors without ever being subject to a lawful
It asserts that FCC "has gone through extraordinary contortions to
preserve what this Court correctly disparaged as ``synthetic competition´´
-- i.e., the use by competitors of an artificial regulatory construct
known as the ``Unbundled Network Element Platform´´ (or ``UNE-P´´) to obtain
all of the elements necessary to provide telephone service at heavily
discounted rates, without any network investment or even maintenance obligations
of their own."
It continues that "the FCC is still mandating the same ``blanket access to
incumbents' networks´´ that the Supreme Court found untenable in 1999 and this
Court rejected in 2002."
The USTA petition requests that the Appeals Court "vacate the FCC's rules
governing the unbundling of mass-market switching and high-capacity facilities.
It should also direct the Commission, within 45 days, to review the detailed
record it has already created and apply an impairment standard for those
elements that accords with this Court's mandate. Consistent with the statutory
requirement that a lawful finding of impairment must precede unbundling, the FCC
should also be directed -- if it is unable to justify continued unbundling under
the proper legal standards -- to put a halt to new UNE-P customers and adopt a
plan to end existing UNE-P arrangements. The Court should also retain
jurisdiction over this matter so that it may promptly address and rectify any
further FCC recalcitrance."
The Verizon petition addresses the same issues as the USTA petition. However,
while the USTA petition challenges only the TROS's unbundling provisions
regarding switching and high-capacity loops, the Verizon petition challenges the
TRO's unbundling provisions pertaining to switching, high
capacity loops, transport, and dark fiber facilities.
|A Petition For Writ of Mandamus?
8/29. On August 28, incumbent local exchange carriers (ILECs), and the
U.S. Telecom Association (USTA), a
group that represents the ILECs, filed two petitions for writ of mandamus
with the U.S. Court of Appeals (DCCir) seeking
rapid review of the UNE-P unbundling provisions of the
Federal Communications Commission's (FCC) just
triennial review order [576 pages in PDF]. The usual procedure
for challenging a final order of the FCC to to file a petition for review. The
ILECs' unusual procedure raises several questions, including: What is a petition
for writ of mandamus, and, why did the petitioners file them?
What is a Petition for Writ of Mandamus? A petition for writ of mandamus
is not a common proceeding. Many readers may
have encountered this writ only in reading about the most famous case
involving a petition for writ of mandamus --
Marbury v. Madison, 5 U.S. 137, the landmark
Supreme Court case that established the concept of judicial review during the
Presidency of Thomas Jefferson.
Marbury was a Federalist appointed to office by President John Adams during
the closing days of his administration. However, Adams has failed to delivery
his commission to him. Thomas Jefferson, a Democrat, was elected President in
1800. The Democrats repealed the statute creating the position to which Marbury
was appointed, and Jefferson refused to deliver the commission. Marbury sued
James Madison, Jefferson's Secretary of State, seeking a writ of mandamus
ordering him to deliver the commission for office. In the end, the Supreme Court
ruled that Madison and Jefferson did not have to deliver the commission, because
the statute which gave the Supreme Court authority to issue writs of mandamus
Justice Marshall wrote the opinion of the Supreme Court. He stated that
"Blackstone, in the third volume of his Commentaries, page 110, defines a
mandamus to be, ``a command issuing in the king's name from the court of king's
bench, and directed to any person, corporation, or inferior court of judicature
within the king's dominions, requiring them to do some particular thing therein
specified which appertains to their office and duty, and which the court of
king's bench has previously determined, or at least supposes, to be consonant to
right and justice.´´"
Justice Marshal continued: "Lord Mansfield, in 3 Burrows, 1266, in the
case of The King v. Baker et al. states with much precision and explicitness the
cases in which this writ may be used."
"``Whenever,´´ says that very able judge, ``there is a right to execute an
office, perform a service, or exercise a franchise (more especially if it be in
a matter of public concern or attended with profit), and a person is kept out of
possession, or dispossessed of such right, and has no other specific legal
remedy, this court ought to assist by mandamus, upon reasons of justice, as the
writ expresses, and upon reasons of public policy, to preserve peace, order and
good government.´´ In the same case he says, ``this writ ought to be used upon
all occasions where the law has established no specific remedy, and where in
justice and good government there ought to be one.´´"
Marshall added that "Still, to render the mandamus a proper remedy, the officer
to whom it is to
be directed, must be one to whom, on legal principles, such writ may be
directed; and the person applying for it must be without any other specific and
While writs of mandamus have been little used since the days of Blackstone
and Marshall, they are addressed in Title 28, the Federal Rules of Appellate
Procedure (FRAP), and the Circuit Rules for the District of Columbia. However,
each of these provides procedural rules for mandamus, rather than rules
regarding when they are available.
The FRAP address writs of mandamus at Rule 21. The DC Circuit Rules also address
writs of mandamus, at Rule 21. See,
Circuit Rules [194 pages in PDF] with the FRAP
Perhaps it is worth noting that
28 U.S.C. § 1361,
which pertains to an "Action to compel an officer of the United States to perform his
duty", provides that "The district courts shall have original jurisdiction
of any action in the nature of mandamus to compel an
officer or employee of the United States or any agency thereof to perform a
duty owed to the plaintiff."
However, 28 U.S.C.
§ 1651, which pertains to "Writs", provides that "The Supreme
Court and all courts established by Act
of Congress may issue all writs necessary or appropriate in aid of their
respective jurisdictions and agreeable to the usages and principles of law."
Not surprisingly, the USTA petition cites Section 1651, but not Section 1361.
Moreover, there is precedent for the Court of Appeals issuing a writ of mandamus
to the FCC.
The Court of Appeals recently issued a writ of mandamus to the FCC in
another long running proceeding. On October 11, 2000, the Court issued its
opinion and order in
Radio Television News Directors Association v. FCC, which
contains a writ of mandamus directing the FCC "immediately to repeal the
personal attack and political editorial rules."
However, while the unbundling issue has been ongoing for seven years, the
FCC had been delaying on the personal attack and political editorial rules for
twenty years. Also, in that case, the Court found that the FCC had "ignored"
the Court's last remand order by doing nothing, while in the present case the
FCC continues to churn out lengthy unbundling orders. The just released TRO is
576 pages. The 1999 unbundling order was 262 pages. The 1996 order was 737
Moreover, the FCC added insult to delay in the RTNDA case. Just days before
the DC Circuit was to rule in 2000, the FCC issued an order that suspended the
personal attack and political editorial rules for 60 days, and then asserted
to the Appeals Court, with comic audacity, that the whole issue was mooted. See
also, coverage of RTNDA v. FCC in
E-Mail Alert No. 41, October 13, 2000.
Why File a Petition for Writ of Mandamus? The
petitioners stated their reasons for filing petitions for writs of mandamus.
The USTA brief states that "The consequences of this extraordinary
abdication of responsibility (and evasion of this Court's mandate) are
devastating for petitions, for the industry, and ultimately for consumers. Since
the FCC first adopted it unlawful unbundling regulations, the three incumbent
petitioners have lost more than nine million customers to the wholly synthetic
competition of the UNE-P." (Parentheses in original.)
The USTA brief argues that "This case fits squarely within this Court's
precedents defining the
conditions for mandamus. The FCC's blatant disregard of this Court's mandate and
of the FCC's statutory obligations -- a disregard that the FCC's own Chairman
has pointedly exposed -- threatens immense, immediate, and irreparable harm to
petitioners and to the competitive market that Congress sought to create. It is
simply intolerable to require the incumbent telephone companies to petition for
review a third time to obtain the relief to which they are entitled under this
Court's decision, the Supreme Court's 1999 decision, and the 1996 Act itself."
Verizon states in its petition that "The remedy of mandamus exists for cases
like this." It adds that "The FCC has perpetuated an unlawful unbundling regime for seven
year through regulatory manipulation and exploitation of the time lag inherent
in judicial review. The intervention of this Court is essential to put an end to
There are several significant differences between a petition for review and petition
for writ of mandamus.
First, if granted, a writ of mandamus would likely issue within a much
shorter time frame than an opinion in a proceeding on a petition for review.
Hence, by pursuing a petition for writ of mandamus, the ILECs may obtain quicker
For example, FRAP 21 provides that "The proceeding must be given preference
over ordinary civil cases." Similarly, Circuit Rule 21 provides that "No
responsive pleading to a petition for an extraordinary writ to the district
court or an administrative agency, including a petition seeking relief from
unreasonable agency delay, is permitted unless requested by the court."
Second, if the petitioners succeed in obtaining review by the Court of Appeals
under their petition for writ of mandamus, they are likely to obtain review by
the same three judge panel that issued the opinion in USTA v. FCC. This opinion
demonstrates that these three judges are already favorably disposed to the ILECs
on the UNE-P issue. In contrast, a new petition for review would be assigned
randomly to a new three judge panel. Its members might not be so favorably
disposed to the position of the ILECs.
Third, the FCC's TRO is likely, both in the coming weeks, and for years, to
generate numerous legal challenges. Some will be brought in Courts less
favorably disposed to the position of the ILECs than the DC Circuit. Moreover,
multiple petitions for review of the same order, brought in different circuits,
may be consolidated into one proceeding, which may be a circuit other than the
District of Columbia. The present petitions for writ of mandamus are not petitions for review.
Thus, by using the procedure of petition for writ of mandamus, the ILECs may
increase the likelihood that their arguments will be heard by their chosen
With respect to obtaining the same three judge panel, and obtaining
review in the District of Columbia, it might be argued that there are
elements of both judge shopping and forum shopping in this procedure. And
indeed, supporters of the UNE-P provisions of the TRO have already argued this.
For example, Russell Frisby, President of
CompTel, stated in a
that "The USTA petition ignores both the facts and the law. USTA is simply
engaged in a blatant attempt at forum shopping. The petition should be summarily
Michigan Commissioner Robert Nelson, the Chair of
National Association of Regulatory Utility
Telecommunications Committee, stated that "Whatever your opinion of the FCC's Order,
it is certainly not an appropriate target for the extraordinary remedy of a
mandamus petition. The FCC certainly did not flatly ignore or ``defy´´ the D.C.
Circuit's mandate or the text of the statute. Indeed, the text of the Order goes
to great lengths to explain precisely how it is complying with both the
statutory constraints and the D.C. Circuit's mandate specifically providing for
the granular analysis that was the most prominent feature of the Court's
decision. Stripped to essentials, this petition is simply an appeal conveyed to
the Court in an inappropriate procedural envelope." Nelson added that "We
will oppose the motion." See, NARUC
|6th Circuit Holds That Doctrine of Laches,
Not Statute of Limitations, Applies in Cybersquatting Cases
8/28. The U.S.
Court of Appeals (6thCir) issued its
v. Catalanotte, a cybersquatting case. The Appeals Court affirmed
the District Court judgment that the Catalanotte must transfer the domain name, fordworld.com to the Ford Motor Company. The Appeals Court also held that the ACPA
applies retroactively, and that the doctrine of laches, rather than any
fixed statute of limitations, applies to whether suit under the ACPA should be
barred for delay in filing.
Background. Peter Catalanotte registered the domain name fordworld.com in
January 1997. Catalanotte, an employee of Ford Motor Company, was aware that Ford
published a magazine titled Ford World. Catalanotte made no use of the domain
name. In October 2000 he wrote to Ford in an attempt to sell the domain name.
District Court. Ford filed a complaint in November 2000 in
U.S. District Court (EDMich)
against Catalanotte alleging
violation of the Anticybersquatting Consumer Protection Act (ACPA), trademark
dilution, trademark infringement, and false designation of origin.
Appeals Court. The Appeals Court, with few words, found that Ford had demonstrated that
Catalanotte violated the ACPA. He
registered and trafficked in a domain name that is identical or confusingly
similar to a distinctive mark, and he did so with bad faith intent to profit. See,
U.S.C. § 1125(d). The bulk of the opinion then addressed other issues raised by Catalanottte, including retroactivity and whether a statute of limitations
The Appeals Court held, as other courts have held, that the ACPA applies
retroactively to domain name registrations that occurred prior to the effective
date of the statute. The Appeals Court cited, for example, the
U.S. Court of Appeals (4thCir) in PETA v. Doughney, published at 263
F.3d 359. See also, story titled "4th Circuit Affirms
Judgment Against Parody Web Site Operator" in
TLJ Daily E-Mail
Alert No. 256, August 24, 2001. The Appeals Court further held that Ford may
recover damages under the ACPA that occurred prior to the effective date of the
The Appeals Court also rejected Catalanotte's statute of limitations defense.
The complaint was filed over three years after the registration, but one month
after Ford was notified of the registration. The ACPA contains no statute of
limitations. Catalanotte argued that a state three year statute of limitations
on federal claims should apply. The Appeals Court rejected this argument. The
Court held that for Lanham Act claims, the doctrine of laches applies. This
doctrine requires that the party asserting it show
a lack of diligence by the party against whom the defense is asserted, and
prejudice to the party asserting it. The Court found that Catalanotte could not
show either element. Hence, Ford's action is not barred.
This case is Ford Motor Company v. Peter Catalanotte, No. 02-1237,
an appeal from the U.S. District Court for the Eastern District of Michigan,
at Detroit, Judge Robert Cleland presiding, D.C. No. 00-75260.
|More Intellectual Property Rights News
8/29. The Recording Industry Association of
America (RIAA) stated in a release that "Shipments of music products to
retail outlets declined nearly 10 percent in the first half of 2003,
representing a nine percent drop in dollar value compared with the first six
months of 2002 ..." RIAA President Cary Sherman stated that "While there are
other factors contributing to the decline of music shipments in 2003, including
the fact that there are significantly fewer music retail locations, illegal file
‘sharing’ continues to adversely impact the sale of physical CDs ... We believe
the use of these illegal peer-to-peer services is hurting the music industry’s
efforts to distribute music online in the way consumers demand."
8/29. The International
Intellectual Property Alliance (IIPA) submitted a
paper [5 pages in PDF] to the Americas Business Forum (ABF), Workshop on
Intellectual Property Rights. The paper argues that the Free Trade of the
Americas Agreement (FTAA) should include a chapter on intellectual property
8/19. The U.S.
Court of Appeals (9thCir) issued its
opinion [10 pages in PDF] in Traditional Cat Association v. Traditional Cat
Association, a case involving both copyright and non-copyright
claims. At issue is the recovery of fees by the prevailing party. The Copyright
17 U.S.C. § 505,
provides that "In any civil action under this title, the court in its discretion
may allow the recovery of full costs by or against any party other than the
United States or an officer thereof. Except as otherwise provided by this title,
the court may also award a reasonable attorney's fee to the prevailing party as
part of the costs." The District Court
denied fees, rather than making an attempt to apportion fees between the
copyright and non-copyright claims. The Appeals Court reversed and remanded. It
held that the District Court "should first decide whether the copyright and
non-copyright claims are related. If they are, then the district court should
proceed to calculate a ``reasonable´´ fee award. If the district court
determines that the copyright and noncopyright claims are not related, the
defendants cannot recover fees for the non-copyright claims, but the district
court must attempt to arrive at a fair apportionment and then calculate a
reasonable fee award. This case is The Traditional Cat Association, Inc. v. Traditional Cat
Association, No. 01-56595, an appeal from the U.S. District Court for the
Southern District of California, Judith Keep presiding, D.C. No. CV-99-00754-JNK
8/26. The U.S. Court of Appeals (FedCir)
issued its opinion [MS
Word] in Nitro Leisure Products v. Acushnet Company, a trademark
case involving the sale of recycled and refurbished Titleist golf balls.
|There was no issue of the TLJ Daily E-Mail Alert on Monday,
September 1, 2003.
|FBI Makes Arrest In Connection With Variant
of Blaster Worm
8/29. The Federal Bureau of Investigation
(FBI) made an arrest in its investigation into the transmission of a variant of
the "Blaster" internet worm. The Department of
Justice (DOJ) charged Jeffrey Lee Parson by
criminal complaint filed in U.S.
District Court (WDWash) on August 28.
The criminal complaint alleges that he "knowingly caused and attempted to
cause the transmission of a program, information, code, and command, that is, an
Internet worm and packets of data sent in the form of a distributed denial of
service attack, and as a result of that conduct, intentionally caused and
attempted to cause damage, without authorization, to protected computers, that
is, computers of Microsoft Corporation and other computers throughout the world
that were used in interstate or foreign commerce or communication, causing an
aggregate loss to Microsoft Corporation and other persons of at least $5,000",
in violation of 18 U.S.C. §§ 1030(a)(5)(A)(i), (a)(5)(B)(i), (b) and (c)(4)(A).
The complaint continues that Parson "is responsible for, among other things,
knowingly developing and releasing, and aiding and abetting the development and
release of, onto the Internet a variant of the Blaster worm that infected at
least 7,000 individual Internet users' computers, turned those computers into
drones that attacked or attempted to attack Microsoft and, in particular, its
web site www.windowsupdate.com." The
complaint elaborates on the nature of worms and viruses, the vulnerability that
the Blaster worm exploits, the nature of Blaster worm, the variant released by
Parsons, and how the FBI determined that it was released by Parson.
The FBI has also obtained and executed search warrants for, among other
locations, the home of Parson in Minneapolis, Minnesota. The FBI also obtained
and executed a warrant for the arrest of Parsons.
See also, U.S. Attorneys Office (WDWash)
Nothing in this release or the criminal complaint charging
Parson provides information relating to the identification of the person(s) who
released the original Blaster worm.
FBI Assistant Director (Cyber Division)
Jana Monroe stated
that "The FBI has placed investigating Cyber Crime as one of the top three
priorities of the FBI behind counterterrorism and counterintelligence
On August 29, the Department of Homeland Security
(DHS) stated in a release that that it "is actively involved in advancing the Federal
government's interaction and partnership with industry and other organizations
in the protection of this nation’s critical infrastructure. In June 2002, DHS
created the National Cyber Security Division (NCSD) under the Department's
Information Analysis and
Infrastructure Protection Directorate. The NCSD worked with the FBI and USSS
to do the initial technical analysis of the worm, to include breaking down the
code to determine its targets. NCSD has continued to support federal agencies
and the private sector in their efforts to recover from the worm's effects."
See also, Microsoft
statement and Business Software Alliance (BSA)
|More Tech Crimes
8/29. A grand jury for the U.S.
District Court (EDVa) returned an
indictment [6 pages in PDF] of Helen Carr charging her with "conspiracy
to possess, with intent to defraud and in a
manner affecting interstate and foreign commerce, fifteen or more unauthorized
access devices, and engaged in conduct in furtherance of the same", in violation
of 18 U.S.C. § 1029(a)(3). The indictment charges
that "The object of the conspirators' unlawful agreement was to steal and to
obtain by fraudulent means unauthorized access devices, that is, credit card
numbers, from persons using AOL as their Internet Service Provider (ISP)." The
indictment further alleges that the conspirators sent "false e-mails, purporting
to be from AOL’s Security Department, advised that AOL’s last attempt to bill
the subscriber’s credit card was declined and that the subscriber needed to
supply AOL with updated credit card and account information. To do so, the
subscribers were directed to click upon an enclosed link in the e-mail message
to visit an AOL web page." This web page was a phony "AOL Billing Center" that
"directed the subscribers to input their names, addresses, telephone numbers,
screen names, passwords, and current and new credit card account information, in
order to avoid having their AOL accounts terminated." See also, USAO
8/29. The U.S. District Court
(EDVa) sentenced Billy J. Brown to serve 12 months in prison, and pay a
$1,000 fine, following his plea of guilty
to creating and selling musical compact discs in violation of the criminal
copyright laws. See, USAO
[PDF] and CCIPS
8/22. The Department of
Justice (DOJ) charged Walter Wiggs by criminal complaint filed in the
U.S. District Court (CDCal) with
gaining unauthorized access to protected computers, including those of the
Orange County District Attorney's Office. He was arrested on August 22. The DOJ
stated in a
release that "Wiggs was previously employed as a computer technician for
Technology for Business Corporation (TFBC)", but was laid off in June. "TFBC
specializes in developing customized software including an interactive voice
response system for telephone call centers." The DOJ release adds that after his
termination, he used his home computer "to gain unauthorized access to
approximately 13 computers that used TFBC's interactive voice response software
including systems used by the Los Angeles County Department of Children and
Family Services, City of San Diego, City of Modesto and the Orange County
District Attorney's Office."
|Financial Privacy News
8/27. California Governor Gray Davis signed
SB 1, a bill that provides for the regulation of the use of information by
financial institutions by the California Department of Financial Institutions
and by certain federal agencies. It is sponsored by state Senator Jackie Speier
(D-San Francisco). See also, Consumers Union
release praising the bill, and Privacilla.org
criticizing the bill.
|More FCC News
8/29. The Federal Communications Commission (FCC) released its
Notice of Proposed Rulemaking (NPRM) [63 pages in PDF] in its proceeding
titled "In the Matter of Amendment of Parts
73 and 74 of the Commission’s Rules to Establish Rules for Digital Low Power
Television, Television Translator, and Television Booster Stations and to Amend
Rules for Digital Class A Television Stations". The FCC announced, but did not release,
this NPRM at its August 6, 2003 meeting. See, August 6 FCC
release [PDF]. This is MB Docket No. 03-185. The FCC has not yet published a
notice of the NPRM in the Federal Register. However, comments will be due within
60 after publication in the Federal Register, and reply comments will be due
within 90 after publication in the Federal Register. For more information, contact
Keith Larson at email@example.com or 202 418-2607.
8/28. Sinclair Broadcast Group filed with the
U.S. Court of Appeals (DCCir) a
petition for review of the Federal Communications Commission's
(FCC) revisions to its broadcast ownership rules, released on July 2, 2003. The
petition states that "Petitioner seeks review on the grounds that the Media
Ownership Order is inconsistent with this Court's remand in Sinclair
Broadcast Group v. FCC, 284 F.3d 148 (2002) ..." This is numbered 03-1255.
Numerous other petitions for review of the FCC's July 2, 2003 order have been filed.
(See, for example, NBC v. FCC, No. 03-1242; Viacom v. FCC, No. 03-1241, Fox v.
FCC, No. 03-1240; NAB v. FCC, No. 03-1232; and Media General v. FCC, No. 03-1231.)
8/29. AT&T Wireless, Cingular Wireless, and AllTel filed a petition for writ
of mandamus to the Federal Communications Commission
(FCC) with the U.S. Court of Appeals (DCCir).
They seek a writ staying or enjoining the November 24, 2003 deadline for
wireless carriers to provide number portability pursuant to 47 C.F.R. 52.31.
|Tuesday, September 2
9:30 AM. The Senate will return from its August recess. The Senate will
begin consideration of
the Labor/HHS and Education Appropriations bill.
The House is in recess until September 3.
The Supreme Court is in recess until October 6. (The Supreme
Court will meet in special session to hear oral arguments in McConnell v. FEC
on September 8.)
12:30 PM. Secretary of Homeland Security
will speak at the American Enterprise Institute
(AEI). The Department of Homeland Security
(DHS) notice states this: "Members of the press MUST sign up to attend, you must
contact the AEI press office by email at VRodman@aei.org
or by phone at 202 862-4871 with your name and news organization before the
event. Upon arrival you must show a valid press identification. Press check-in
and setup begins at 8:00 AM and ends at 12:00 PM on Tuesday."
The Treasury Department's and the
Internal Revenue Service's (IRS) will hold a
public meeting regarding their notice of proposed rulemaking (NPRM)
regarding regulations that "affect certain taxpayers who participate in the
transfer of stock pursuant to the exercise of incentive stock options and the
exercise of options granted pursuant to an employee stock purchase plan
(statutory options)." See,
notice in the Federal Register, June 9, 2003, Vol. 68, No. 110, at Pages 34344 - 34370.
|Wednesday, September 3
2:00 PM. The House will return from its August recess. It will consider
several non-tech related items under suspension of the rules. Votes will be
postponed until 6:30 PM. See,
Republican Whip Notice.
10:00 AM. The Senate Judiciary
Committee is scheduled to hold a hearing on several judicial nominations,
including those of Carlos Bea (to be a Judge of the U.S. Court of Appeals for
the Ninth Circuit), Marcia Crone (U.S. District Court for the Eastern District
of Texas), Phillip Figa (U.S. District Court for the District of Colorado),
William Hayes (U.S. District Court for the Southern District of California),
John Houston (U.S. District Court for the Southern District of California),
Robert Jones (U.S. District Court for the District of Nevada), and Ronald
White (U.S. District Court for the Eastern District of Oklahoma). See,
Location: Room 226, Dirksen Building.
1:00 PM. The Federal Trade Commission's
(FTC) will hold a news conference to announce the release of a report on
identity theft. Howard Beales, Director of the FTC's Bureau of Consumer
Protection, will speak. Call in information: dial 800
377-4562, and provide confirmation number 18873087. See,
Location: FTC, Room 432, 600 Pennsylvania Ave., NW.
1:00 PM. The House Commerce
Committee's Subcommittee on Telecommunications and the Internet will
hold a hearing titled "Digital Dividends and Other Proposals to
Leverage Investment in Technology". The hearing will be webcast. See,
Location: Room 2123, Rayburn Building.
5:00 PM. The House Rules Committee will meet to adopt a rule for
HR 2989, the
Transportation, Treasury, and Independent Agencies Appropriations Act, 2004.
Location: Room H-312, U.S. Capitol.
Deadline to submit comments to the Federal
Communications Commission (FCC) in response to its notice of proposed
rulemaking (NPRM) regarding making more spectrum available for unlicensed
devices, including WiFi, in the 5 GHz band.
See, stories titled "FCC Adopts NPRM to Increase Unlicensed Spectrum" in
TLJ Daily E-Mail
Alert No. 663, May 16, 2003; "FCC Releases NPRM Regarding Increasing Amount
of Unlicensed Spectrum" in
TLJ Daily E-Mail
Alert No. 674, June 5, 2003, and "Delegates Discuss World
Radiocommunications Conference" in TLJ Daily E-Mail Alert No. 703, July 22,
2003. See also,
in the Federal Register, July 25, 2003, Vol. 68, No. 143, at Pages 44011 - 44020.
This is ET Docket No. 03-122. The FCC adopted this NPRM on May 15, 2003, and
released June 4, 2003.
|Thursday, September 4
10:00 AM. The House will meet for legislative business. It may consider
the Transportation, Treasury, and Independent Agencies Appropriations Act,
2004. See, Republican
The Federal Communications Commission's
(FCC) changes to its media ownership rules, announced on June 2, 2003, take
notice in the Federal Register that recites and describes the rules changes.
See, Federal Register, August 5, 2003, Vol. 68, No. 150, at Pages 46285 - 46358.
|Friday, September 5
9:00 AM. The House will meet for legislative business. It may consider
the Transportation, Treasury, and Independent Agencies Appropriations Act,
2004. See, Republican
9:30 - 11:30 AM. The American Enterprise Institute
(AEI) will host a seminar titled "The New World of E-Commerce Taxation".
The speakers will be Michael Greve (AEI),
Daniel Shaviro (NYU School of Law), and Kevin
Hassett (AEI). See,
notice. Location: 12th Floor, AEI, 1150 17th
Deadline to submit reply 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.
12:00 NOON. Deadline to submit requests to testify orally at the September
18, 2003 hearing of the U.S. Trade
Representative's (USTR) interagency Trade Policy Staff Committee (TPSC) to
assist it in preparing its annual report to the Congress on the People's
Republic of China's compliance with the commitments that it made in connection
with its accession to the World Trade
Organization (WTO). See,
notice in the Federal Register, July 21, 2003, Vol. 68, No. 139, at Pages
43247 - 43248.
|Monday, September 8
9:30 AM. The U.S. Court of Appeals
(DCCir) will hear oral argument in Consumer Federation of America v.
FCC, No. 02-1337. Judges Edwards, Randolph and Garland will preside.
Location: 333 Constitution Ave. NW.
10:00 AM. The Supreme Court will
hear oral argument in McConnell v. FEC, a constitutional challenge to the
McCain Feingold campaign finance act. See, June 5, 2003
List [4 pages in PDF] at pages 3-4.
Deadline to submit reply 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.
|Tuesday, September 9
9:00 AM - 3:00 PM. The
Executive Office of the President's (EOP)
Office of Science and Technology Policy's (OSTP)
President's Council of Advisors
on Science and Technology (PCAST) will meet. The agenda includes (1)
discussion of the status of the work of its workforce education
subcommittee, (2) discussion of the preliminary draft findings of its
information technology manufacturing competitiveness subcommittee, and (3) a
continuation of its discussion of nanotechnology and its review of the federal
National Nanotechnology Initiative. See,
notice in the Federal Register, August 27, 2003, Vol. 68, No. 166, at
Pages 51577 - 51578. Location: Room 100 of the National Academy of Sciences
Building, 500 5th Street, NW.
11:00 AM. The Cato Institute will host
a panel discussion titled "Will Internet Telephony Bring about a Revolution
in Telecom Policy?". The speakers will be
Scott Marcus (Senior
Advisor for Internet Technology at the FCC), Brad Ramsay
(National Association of Regulatory Utility
Commissioners), Link Hoewing (Verizon), Marilyn Cade (AT&T), and Jeff
Pulver (Pulver.com). See,
notice. Lunch will follow
the program. Location: Cato, 1000 Massachusetts Ave., NW.
4:00 - 5:30 PM. The Brookings Institution will host a panel discussion
titled "A Preview of the World Bank/IMF and World Trade Organization Meetings".
Location: Falk Auditorium, Brookings, 1775 Massachusetts Ave., NW.
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