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September 2, 2003, 9:00 AM ET, Alert No. 730.
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ILECs File Petitions for Writ of Mandamus Challenging Triennial Review Order

8/29. On August 28, the U.S. Telecom Association (USTA), SBC Communications, BellSouth and 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, TLJ story 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 UNE-P.

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 rates.

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 released TRO.

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 statement [PDF].

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 unbundling order."

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 released 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 was unconstitutional.

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 legal remedy."

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 pages.

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 TLJ Daily 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 these machinations."

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 relief.

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 circuit.

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 release [PDF] 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 rejected."

Michigan Commissioner Robert Nelson, the Chair of National Association of Regulatory Utility Commissioners's (NARUC) 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 release [PDF].

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 opinion in Ford v. Catalanotte, a cybersquatting case. The Appeals Court affirmed the District Court judgment that the Catalanotte must transfer the domain name, 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 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, 15 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 applies.

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 opinion of 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 statute.

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 rights.

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 Act, at 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" 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) release. 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 investigations."

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) release.

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 release.

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 release [PDF] and CCIPS release.

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 release 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 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 HR 2660, 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 Tom Ridge 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 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, notice. 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, notice. Location: FTC, Room 432, 600 Pennsylvania Ave., NW.

POSTPONED. 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, notice. Location: Room 2123, Rayburn Building.

5:00 PM. The House Rules Committee will meet to adopt a rule for consideration of 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, notice 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 HR 2989, the Transportation, Treasury, and Independent Agencies Appropriations Act, 2004. See, Republican Whip Notice.

The Federal Communications Commission's (FCC) changes to its media ownership rules, announced on June 2, 2003, take effect. See, 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 HR 2989, the Transportation, Treasury, and Independent Agencies Appropriations Act, 2004. See, Republican Whip Notice.

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 Street, NW.

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

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 Order 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 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.

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 ( 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". See, notice. Location: Falk Auditorium, Brookings, 1775 Massachusetts Ave., NW.

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