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September 9, 2003, 9:00 AM ET, Alert No. 735.
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Music Companies File Lawsuits Against Individual P2P Infringers

9/8. The Recording Industry Association of America (RIAA) announced that its member companies have filed complaints in U.S. District Courts against more than 250 individuals asserting copyright infringement in connection with their distribution of copyrighted sound recording on peer-to-peer (P2P) networks. The RIAA further announced that this is "the first wave of what could ultimately be thousands of civil lawsuits against major offenders".

The RIAA also announced that "the industry is prepared to grant what amounts to amnesty to P2P users who voluntarily identify themselves and pledge to stop illegally sharing music on the Internet. The RIAA will guarantee not to sue file sharers who have not yet been identified in any RIAA investigations and who provide a signed and notarized affidavit in which they promise to respect recording-company copyrights."

RIAA President Cary Sherman stated that "when your product is being regularly stolen, there comes a time when you have to take appropriate action. We simply cannot allow online piracy to continue destroying the livelihoods of artists, musicians, songwriters, retailers, and everyone in the music industry."

The RIAA also stated that "Federal law and the federal courts have been quite clear on what constitutes illegal behavior when it comes to ``sharing´´ music files on the Internet. It is illegal to make available for download copyrighted works without permission of the copyright owner. Court decisions have affirmed this repeatedly. In the recent Grokster decision, for example, the court confirmed that Grokster users were guilty of copyright infringement. And in last year's Aimster decision, the judge wrote that the idea that ``ongoing, massive, and unauthorized distribution and copying of copyrighted works somehow constitutes `personal use´ is specious and unsupported.´´"

See, order and opinion granting Grokster's and Streamcast's motions for summary judgment in MGM v. Grokster, (C.D. Cal, April 25, 2003), and story titled "District Court Holds No Contributory or Vicarious Infringement by Grokster or Streamcast P2P Networks" in TLJ Daily E-Mail Alert No. 650, April 28, 2003.

Bush Designates McCallum Deputy Attorney General

9/8. The White House press office issued a release that states that President Bush "designated Robert D. McCallum, Jr., of Georgia, to be Acting Deputy Attorney General, Department of Justice. McCallum currently serves as Associate Attorney General." Deputy Attorney General is an executive branch office that requires Senate confirmation.

The President does not "designate" the Deputy Attorney General. The Constitution, at Article II, Section 2, provides that "he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint ... and all other officers of the United States ..."

Robert McCallumOn June 27, 2003, the Senate confirmed McCallum (at right) to be the Associate Attorney General, the third highest position at the DOJ. He was previously Acting Associate Attorney General, and before that, Assistant Attorney General in charge of the DOJ's Civil Division. And before that, he was a partner in the law firm of Alston & Bird, which is based in Atlanta, Georgia.

The Attorney General is in charge of the Department of Justice (DOJ). The Deputy Attorney General is the second position. McCallum, if confirmed as Deputy Attorney General, would replace Larry Thompson, who, like McCallum, is from Atlanta, Georgia. See, story titled "Atlanta Lawyers at DOJ" in TLJ Daily E-Mail Alert No. 711, August 5, 2003.

Sen. Charles Grassley (R-IA), a senior member of the Senate Judiciary Committee, has a dispute with the DOJ regarding oversight procedures, and access to records. He has been placing holds in the Senate on top DOJ nominations. For example, on July 30, 2003, he placed a hold on the nomination of Christopher Wray to be an Assistant Attorney General in charge of the DOJ's Criminal Division.

Sen. Grassley stated that "I have several outstanding written requests before the Department of Justice. Some of these requests are more than 6 months overdue. In addition, I am presently working with the Department of Justice to overcome a number of procedural issues directly affecting my ability, as a member of the Judiciary Committee to, among other things, conduct oversight of the Department of Justice, and the Federal Bureau of Investigations." See, Congressional Record, July 30, 2003, at S10258.

Also, on August 1, 2003, Sen. Grassley placed a hold on the nomination of Daniel Bryant to be an Assistant Attorney General in charge of the Office of Legal Policy (OLP). See, Congressional Record, August 1, 2003, at S10898.

More People and Appointments

9/8. The Department of Homeland Security (DHS) announced that David Bolka "has assumed the position of Director of the Homeland Security Advanced Research Projects Agency (HSARPA) for the Department's Office of Science and Technology". HSARPA is the external research funding arm for the DHS. Bolka previously worked for Lucent Technologies. Before that, he worked for AT&T's Bell Laboratories. Before that, he worked at the Naval Sea Systems Command as a Major Project Manager for Submarine Combat Systems. And before that, he was a career officer in the U.S. Navy.

9/5. Merit Janow and Robert Lighthizer were nominated by the United States for a position on the Appellate Body of the World Trade Organization (WTO). Janow is a professor at Columbia University, and a former Deputy Assistant U.S. Trade Representative. Before that, she worked for the law firm of Skadden Arps Slate Meagher & Flom. Lighthizer works for the law firm of Skadden Arps, where he is in charge of the firm's International Trade Department. He was previously a Deputy U.S. Trade Representative. See, USTR release [PDF].

Christopher Libertelli9/8. Federal Communications Commission (FCC) Chairman Michael Powell named Christopher Libertelli to be his Senior Legal Advisor. He replaces Bryan Tramont. Powell recently named Tramont FCC Chief of Staff. Libertelli is currently one of Powell's Legal Advisors. He handles wireline competition issues, unbundled network element rules, and broadband services issues. Before that, he was Special Counsel for Competition Policy in the Office of the Bureau Chief of the Wireline Competition Bureau (WCB), and an attorney-advisor in the Policy Division. Before that, he was an attorney at the law firm of Dow Lohnes & Albertson. See, FCC release [PDF]

Bryan Tramont9/8. Michael Powell also named Sheryl Wilkerson to be his Legal Advisor for wireless and international issues. Bryan Tramont (at right) had previously handled wireless, international, consumer and technology issues. She previously worked in legislative affairs at ArrayComm. Before that, she worked at the FCC lobbying the Congress. She has also worked for the House Commerce Committee, the Senate Commerce Committee, National Strategies, Inc., the Washington DC law firm of Leventhal Senter & Lerman, and the lobbying firm of Wexler Reynolds Fuller Harrison & Schule (now Wexlar and Walker).

9/8. Tony Fratto was named Deputy Assistant Secretary of Public Affairs at the Treasury Department. He has worked in the Department's Office of Public Affairs since March of 2001. Before that, he worked for the Bush Cheney 2000 campaign. See, release.

FCC Fines Verizon for Section 272 Violation

9/8. The Federal Communications Commission (FCC) released a Notice of Apparent Liability for Forfeiture (NAL) finding that Verizon Telephone Companies apparently violated section 32.27(c) of the FCC's rules, which regulates accounting practices for transactions between Verizon's New York Bell Operating Company and its affiliates established pursuant to 47 U.S.C. § 272(c). The NAL further proposes a total forfeiture of  $283,800.

The FCC adopted this NAL on August 6, 2003, but did not announce or release it until September 8. See, FCC release. In addition, in April of 2003 the FCC found that Verizon Maryland violated its interconnection requirements under 47 U.S.C. § 251. See, FCC release [PDF].

FCC Commissioners Jonathan Adelstein and Michael Copps wrote in a separate statement [PDF] that "This is yet another illustration of how the Commission has fallen short of its statutory duties under Section 272. We need to do more to ensure that our oversight is of the kind and character that Congress intended."

They elaborated that "Through Section 272, Congress required Bell companies to provide long distance and manufacturing services through a separate affiliate. In implementing these requirements, the Commission concluded that Congress adopted these safeguards because it recognized that Bell companies might still exercise market power at the time they enter long-distance markets. As part of these safeguards, Congress specifically required that Bell companies retain an independent auditor to review separate affiliate operations and produce a public report evaluating how they comply with the statute and the Commission's rules. Congress also provided that the long distance separate affiliate requirements would continue for three years, but could be extended by the Commission by rule or order."

The FCC allowed Verizon's Section 272 requirement to sunset three years after it was permitted to offer in region interLATA services in New York. The present NAL is subsequent to that sunsetting. Adelstein and Copps wrote that "This review takes place more than seven months after the Commission allowed the sunset of the New York Section 272 separate affiliate. This is backwards."

7th Circuit Rules in Cell Tower Case

9/8. The U.S. Court of Appeals (7thCir) issued its opinion [33 pages in PDF] in VoiceStream v. St. Croix County, a cell tower case in which the Court of Appeals affirmed the District Court's summary judgment in favor of the county denying VoiceStream's request to construct a cell tower.

VoiceStream Minneapolis (now T-Mobile) provides personal communications services (PCS) in several states, including Wisconsin. It applied to the Board of Adjustment of the County of St. Croix, in Wisconsin, for a special exception permit to construct and operate a telecommunications tower. The county refused.

VoiceStream filed a complaint in U.S. District Court (WDWisc) against the County of St. Croix and its Board of Adjustment alleging violation of 47 U.S.C. § 332(c)(7).

Subsection 332(c)(7)(B)(i) provides, in part, that "The regulation of the placement, construction, and modification of personal wireless service facilities by any State or local government or instrumentality thereof ... shall not prohibit or have the effect of prohibiting the provision of personal wireless services."

Subsection 332(c)(7)(B)(iii) provides that "Any decision by a State or local government or instrumentality thereof to deny a request to place, construct, or modify personal wireless service facilities shall be in writing and supported by substantial evidence contained in a written record."

The District Court granted summary judgment to St. Croix, finding that its denial was supported by substantial evidence and that VoiceStream had failed to demonstrate that St. Croix's decision had the effect of prohibiting personal wireless services. The Appeals Court affirmed on both issues.

This case is VoiceStream Minneapolis, Inc. v. St. Croix County, No. 02-2889, an appeal from the U.S. District Court for the Western District of Wisconsin, D.C. No. 01 C 504, Judge Barbara Crabb presiding.

More News

9/8. The Federal Communications Commission (FCC) published a notice in the Federal Register that describes and recites its proposed rule regarding human exposure to radiofrequency (RF) energy. This notice also sets deadlines for public comments. Comments are due by December 8, 2003. Reply comments are due by January 6, 2004. The FCC adopted this notice of proposed rulemaking on June 12, 2003, and released it on June 26, 2003. This is ET Docket No. 03-137. For more information, contact Robert Cleveland in the FCC's Office of Engineering and Technology at 202 418-2422 or See, Federal Register, September 8, 2003, Vol. 68, No. 173, at Pages 52879 - 52889.

Tuesday, September 9

Recent additions are highlighted in red.

The House will meet at 12:30 PM for morning hour, and at 2:00 PM for legislative business. Votes will be postponed until 6:00 PM. The House will resume its consideration of HR 2989, the "Transportation, Treasury, and Independent Agencies Appropriations Act for Fiscal Year 2004". See, Republican Whip Notice.

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.

9:00 - 10:00 AM. The Federal Trade Commission's (FTC) Bureau of Consumer Protection will hold a "media briefing breakfast" regarding the FTC's recommendations for amending the Fair Credit Reporting Act (FCRA). The speakers will include the FTC's Howard Beales, Joel Winston, and Peggy Twohig. See, FTC notice. Location: FTC Conference Center, 601 New Jersey Ave., NW.

9:30 AM. The Senate Judiciary Committee will hold a hearing titled "Pormography, Technology, and Process: Problems and Solutions on Peer-to-Peer Networks". The witnesses will include Linda Koontz (GAO), John Malcolm (DOJ Computer Crimes and Intellectual Property Section), Thomas Spota (Suffolk County District Attorney), Robbie Callaway (National Center fore Missing and Exploited Children), Stephen Hess (University of Utah), Douglas Jacobson (Palisade Systems), William Barr (Verizon), Cary Sherman (RIAA), and Marybeth Peters (Copyright Office). See, notice. Location: Room 226, Dirksen Building.

9:30 AM. The Senate Commerce Committee will hold an oversight hearing on transportation security. See, notice. Location: Room 253, Russell Building.

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.

1:00 PM. The House Commerce Committee's Subcommittee on Trade and Consumer Protection will hold a hearing on HR 2221, the "Fairness to Contact Lens Consumers Act", sponsored by Rep. Richard Burr (R-NC), Rep. Billy Tauzin (R-LA), Rep. James Sensenbrenner (R-WI), and Rep. Jim Matheson (D-UT). See, notice. It does not reference the internet or electronic commerce. However, if passed, it would remove some barriers to the sale of replacement contact lenses over the internet. See, story titled "Bill Would Facilitate Internet Sale of Replacement Contact Lenses" in TLJ Daily E-Mail Alert No. 669, May 29, 2003. Location: Room 2123, Rayburn Building.

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.

5:00 PM. The House Rules Committee will meet to adopt a rule for consideration of HR 2622, the "Fair and Accurate Credit Transactions Act of 2003". The bill addresses, among other topics, identity theft. Location: Room H-312, Capitol Building.

Wednesday, September 10

The House will meet at 10:00 AM for legislative business. The House may take up HR 2622, the "Fair and Accurate Credit Transactions Act of 2003". See, Republican Whip Notice.

9:30 AM. The Federal Communications Commission (FCC) will hold a meeting. See, agenda [3 pages in PDF]. Location: FCC, 445 12th Street, SW, Room TW-C05 (Commission Meeting Room).

10:00 AM. The House Judiciary Committee will meet to mark up several bills, including HR __, a bill to authorize appropriations for the Department of Justice (DOJ) for fiscal years 2004 and 2005. The meeting will be webcast. For more information, contact Jeff Lungren or Terry Shawn at 202 225-2492. Location: Room 2141, Rayburn Building.

10:00 AM. The Internal Revenue Service (IRS) will hold a hearing on proposed regulations relating to the definition of toll telephone service for purposes of the communications excise tax. See, notice in the Federal Register, June 17, 2003, Vol. 68, No. 116, at Pages 35828 - 35829. Location: Room 4718, Internal Revenue Building, 1111 Constitution Avenue, NW.

10:30 AM - 12:00 NOON. The U.S. International Telecommunication Advisory Committee (ITAC) will meet to discuss the matters related to the International Telecommunications Union's (ITU) World Summit on the Information Society (WSIS), which will take place on December 10-12, 2003, in Geneva, Switzerland. See, notice in the Federal Register, August 18, 2003, Vol. 68, No. 159, at Pages 49536 - 49537. Location: Historic National Academy of Science Building, 2100 C St., NW.

12:00 NOON. Deadline to submit written comments to 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.

4:00 PM. Josef Drexl (Max Planck Institute for Intellectual Property, Competition, and Tax Law) will give a lecture titled "The Role of International Private Law in Establishing a Competition-Oriented International Copyright System". For more information, contact Robert Brauneis at 202 994-6138 or Location: George Washington University Law School, Faculty Conference Center, 5th Floor, Burns Building, 716 20th Street, NW.

Thursday, September 11

The House will meet at 10:00 AM for legislative business. The House may take up HR 2622, the "Fair and Accurate Credit Transactions Act of 2003". See, Republican Whip Notice.

9:00 AM - 4:30 PM. The U.S. Patent and Trademark Office (USPTO) will host of meeting of its Nanotechnology Customer Partnership initiative. RSVP to Jill Warden at 703 308-4037 or See, notice. Location: Patent Theater, Crystal Park 2, 2nd Floor, 2121 Crystal Drive, Arlington, VA.

9:30 AM. The House Commerce Committee's Subcommittee on Telecommunications and the Internet will hold a hearing on HR 2898, the "E-911 Implementation Act of 2003". See, notice. The event will be webcast. Location: Room 2322, Rayburn Building.

Deadline to submit comments to the Federal Communications Commission's (FCC) Notice of Inquiry (NOI) that solicits "data and information on the status of competition in the market for the delivery of video programming for our tenth annual report".

Friday, September 12

The House will not meet. See, Republican Whip Notice.

Deadline for claimants to royalty fees collected for calendar year 2001 under the cable statutory license to submit comments and notices of intention to participate to the Copyright Office regarding whether a Phase I or Phase II controversy exists as to the distribution of those fees. See, notice in the Federal Register, August 13, 2003, Vol. 68, No. 156, at Pages 48415 - 48417.

The U.S. Patent and Trademark Office's (USPTO) final rule amending its rules to separate the provisions for patent matters and trademark matters with respect to filing correspondence, requesting copies of documents, payment of fees, and general information takes effect. The USPTO is "amending its Rules of Practice in Patent Cases to delete all references to trademark matters, and amending its Rules of Practice in Trademark Cases to add new rules setting forth provisions for corresponding with and paying fees to the Office in trademark cases, and for requesting copies of trademark documents." See, notice in the Federal Register, August 13, 2003, Vol. 68, No. 156, at Pages 48286 - 48293.

Deadline for Members of Congress to sign a letter to Federal Communications Commission (FCC) Chairman Michael Powell regarding network neutrality. The letter is being circulated by Rep. Rick Boucher (D-VA) and Rep. Ron Kind (D-WI).

Monday, September 15

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in Ranger Cell v. FCC, No. 02-1155. Judges Edwards, Randolph and Garland will preside. Location: 333 Constitution Ave. NW.

10:00 AM - 12:00 NOON. The Executive Office of the President's (EOP) Office of Science and Technology Policy's (OSTP) National Science & Technology Council's (NSTC) Committee on Science's Education and Workforce Development Subcommittee will hold a meeting. For more information, contact James Griffin at 202 456-6129 or Location: White House Conference Center, Lincoln Room, 726 Jackson Place NW.

10:30 AM - 3:00 PM. The American Enterprise Institute (AEI) will host a program titled "Jumpstarting a Brighter Broadband Future: Driving Investment and the New Telecom Frontier". At 10:30 AM Federal Communications Commission (FCC) Commissioner Kevin Martin will speak. At 11:15 AM Bruce Mehlman (Technology Administration) and James Glassman (AEI) will speak. At 12:30 PM David Dorman (Ch/CEO of AT&T) will be the luncheon speaker. At 1:45 PM there will be a panel titled "Driving Investment in the Telecom Sector: Capital and Policy". The presenter will be Laurence Kotlikoff (Boston University). The other speakers will be Jeff Halpern (Sanford Bernstein), Blair Levin (Legg Mason), and James Glassman. See, notice. Location: AEI, 1150 17th St., NW, 12th Floor.

12:15 PM. The Federal Communications Bar Association's (FCBA) Mass Media Committee will hold an organizational meeting, and brown bag lunch. Location: 8th Floor Conference, Suite 800, Dow Lohnes & Albertson, 1200 New Hampshire Avenue, NW.

1:00 - 4:00 PM. The Federal Communications Commission's (FCC) Network Reliability and Interoperability Council (NRIC) will hold a meeting. The Council will hear updates from the Network Reliability, Interoperability and Broadband Focus Groups and review recommendations from the Physical Security Focus Group. See, FCC notice [PDF] and notice in the Federal Register, August 27, 2003, Vol. 68, No. 166, at Pages 51578 - 51579. The meeting will be webcast. Location: FCC, Commission Meeting Room, TW-C305, 445 12th Street, SW.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to a Petition for Rulemaking on compliance by carriers with relevant statutory provisions on disclosure of customer information in 911 emergencies. The petition was submitted by the National Emergency Number Association (NENA), the Association of Public Safety Communications Officials International (APCO), and the National Association of State Nine One One Administrators (NASNA). See, FCC notice [3 pages in PDF]. For more information, contact Barbara Reideler or Jared Carlson at 202 418-1310.

Deadline to submit comments to the LOCAL Television Loan Guarantee Board regarding the proposed regulation to implement the LOCAL Television Loan Guarantee Program, as authorized by the Launching Our Communities' Access to Local (LOCAL) Television Act of 2000. The purpose of the Act is to facilitate access to signals of local TV stations in nonserved areas and underserved areas. The Act establishes a LOCAL Television Loan Guarantee Board to approve guarantees of up to 80% of loans totaling no more than $1.25 Billion. The regulation proposes to establish eligibility and guarantee requirements, the application and approval process, the administration of guarantees, and the process through which the Board will consider applications under the priority considerations required in the Act. See, notice in the Federal Register, August 15, 2003, Vol. 68, No. 158, at Pages 48814 - 48833. See also, Treasury release.

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