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October 7, 2003, 9:00 AM ET, Alert No. 754.
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9th Circuit Vacates FCC Declaratory Ruling That Cable Modem Service is an Information Service Without a Separate Offering of a Telecommunications Service

10/6. The U.S. Court of Appeals (9thCir) issued its opinion [39 pages in PDF] in Brand X Internet Services v. FCC, vacating the Federal Communications Commission's (FCC) declaratory ruling that cable modem service is an information service, and that there is no separate offering as a telecommunications service.

The FCC adopted a Declaratory Ruling and Notice of Proposed Rulemaking [75 pages in PDF] at its March 14, 2002 meeting. This is FCC 02-77 in Docket No. 00-185 and Docket No. 02-52. See also, March 14 FCC release.

The Declaratory Ruling (DR) component of this item states that "we conclude that cable modem service, as it is currently offered, is properly classified as an interstate information service, not as a cable service, and that there is no separate offering of telecommunications service."

The opinion of the Court of Appeals vacates this DR. In so doing, the Court has placed itself in the role of writing broadband policy for the U.S., and thereby, undermined the FCC's attempts to promote broadband deployment.

FCC Chairman Michael Powell promptly announced that the FCC will appeal.

The Court of Appeals wrote that its opinion was solely a matter of stare decisis. That is, it was bound by its previous opinion in AT&T v. City of Portland, 216 F.3d 871 (2000).

Petitions for Review. This proceeding is a consolidation of seven petitions for review of the DR filed in three different circuits. The petitions advanced a wide variety of arguments.

Brand X (No. 02-70518), EarthLink (No. 02-70684), the State of California (No. 02-70879), and the Consumer Federation of America (No. 02-70686), argued that cable modem service is both an information service and a telecommunications service, and is therefore subject to regulation on a common carriage basis -- that is, that cable broadband providers must be required to let other internet service providers (ISPs) use their facilities.

The National League of Cities (No. 02-71425), the National Association of Telecommunications Officers and Advisors, the United States Conference of Mayors, the National Association of Counties, and the Texas Coalition of Cities for Utility Issues, and others argued that cable modem service is both an information service and a cable service, and therefore is subject to regulation by local authorities.

Verizon (No. 02-70685) argued that argued that the FCC DR was correct, but that the FCC should have also ruled that DSL service, like cable modem service, is an information service.

Why Regulatory Classifications Matter. The FCC's regulatory classifications are important because each industry sector regulated sector by the FCC operates under vastly different rules. The basic rules for each is codified in the Communications Act of 1934, which has been amended on many occasions. The most recent major revision was the Telecommunications Act of 1996.

Previously, the FCC regulated industries have been easily compartmentalized. These industry sectors have included TV and radio broadcasters, phone companies that provided plain old fashioned telephone service (POTS), wireless phone companies that provided voice service with cell phones, and cable companies that piped in programming. Also, there was one category, information services. Telecommunications services carry a large regulatory burden. Cable services are less regulated. Information services remain largely unregulated.

Tthe basic regulatory schemes are complex, and the Congress has left it to the FCC to write and update detailed regulations to implement the basic scheme of the Communications Act. The classification of services has become more complex with the development of new technologies and convergence with older technologies.

Regulatory classifications have consequences. They can, for example, affect whether or not certain companies may gain forced access to the facilities of other companies, and the prices that are paid. And hence, regulatory classifications can affect the expected return on investment for constructing new facilities. And, whether or not new facilities are constructed affects how many consumers will reap the benefits of those new services.

The underlying purpose of FCC Chairman Powell, and the FCC, in issuing its Declaratory Ruling, was to promote deployment of broadband facilities, thereby increasing the number of people with access to affordable broadband internet connections. The Declaratory Ruling was intended, in part, to give cable companies and their investors the incentive to build new cable based facilities. (Commissioner Michael Copps dissented on this matter.)

The Appeals Court ruling upsets the strategy of Powell and the majority of the Commission to promote broadband deployment and adoption.

Portland Case. The per curiam opinion of the three judge panel does not address the merits of various policy arguments regarding how to promote broadband deployment. Nor does it address technical issues that may be relevant to classifying cable modem service. Rather, it is simply an application of precedent in the 9th Circuit -- the AT&T v. Portland case.

This was a federal suit brought by AT&T and TCI, a cable company which AT&T had just acquired, for a declaratory judgment that the City of Portland and the County of Multnomah illegally refused to grant AT&T/TCI's request for change of control. At issue was whether local governments have authority to condition the transfer of cable licenses on opening access to Internet access providers. The FCC had just completed its review of the merger, and declined requests from ISPs to impose an open access, or forced access, requirement upon AT&T.

Portland argued that this was a cable service, and that it had authority under the Cable Act to impose open access conditions on transfers. AT&T did not argue that this was an information service. Rather, it argued federal preemption, and various constitutional issues.

On June 4, 1999, the U.S. District Court (DOr) issued its opinion granting Defendants' motion for summary judgment and denying plaintiffs' motion for summary judgment. It held that the City of Portland has the authority to condition the transfer of control of TCI's cable licenses on AT&T's opening of its Internet cable facilities to competing ISPs. AT&T appealed.

The FCC was not a party to this proceeding. Nevertheless, on August 16, 1999, the FCC filed an amicus curiae brief with the 9th Circuit. However, the FCC brief took no position as to whether this service is "cable", "telecommunications" or "information." It wrote that "the Commission has not yet conclusively resolved the issue."

On June 22, 2000, the Court of Appeals (9thCir) issued its opinion reversing the District Court. It wrote, "We hold that subsection 541(b)(3) prohibits a franchising authority from regulating cable broadband Internet access, because the transmission of Internet service to subscribers over cable broadband facilities is a telecommunications service under the Communications Act. Therefore, Portland may not condition the transfer of the cable franchise on nondiscriminatory access to AT&T's cable broadband network."

In the absence of an FCC position regarding the regulatory classification of cable modem service, the 9th Circuit adopted its own. Now, the FCC faults the 9th Circuit for not adopting a position that the FCC itself did not assert at the appropriate time. See also, TLJ story titled "FCC Files Amicus Curiae Brief in Cable Access Case", August 16, 1999.

See also, TLJ Summary of AT&T v. City of Portland.

Opinion of the 9th Circuit. In the present case, the 9th Circuit stated the issue before it. "We must decide whether our prior interpretation of the Telecommunications Act controls review of the Federal Communications Commission's decision to classify Internet service provided by cable companies exclusively as an interstate ``information service.创"

It wrote that "There, we concluded that cable broadband service was not a ``cable service创 but instead was part ``telecommunications service创 and part ``information service.创 Because the Commission抯 Declaratory Ruling agreed with our conclusion that cable broadband service is not ``cable service,创 but disagreed with our conclusion that it is in part ``telecommunications service,创 we must AFFIRM in part, VACATE in part, and REMAND for further proceedings not inconsistent with this opinion."

Judge Diarmuid O'Scannlain wrote a concurring opinion. He wrote that the opinion is correct, because "we are bound by our own interpretation of the Telecommunications Act in Portland and must vacate the FCC抯 Declaratory Ruling."

However, he was clearly uncomfortable with the outcome. For example, he wrote that "Regardless of one's view of the wisdom of the FCC抯 declaratory ruling, it cannot be denied that our holding today effectively stops a vitally important policy debate in its tracks, at least until the Supreme Court reverses us or Congress decides to act."

O'Scannlain even speculated that the FCC may ignore the 9th Circuit. He wrote in a footnote, "Given the importance of the regulatory classification of broadband internet service, one wonders whether our decision today will prompt the FCC to follow the example of the Social Security Administration, the National Labor Relations Board, and the Internal Revenue Service, among other federal agencies, in adopting a policy of "nonacquiescence" in the face of court rulings with which the agency disagrees."

Judge Sidney Thomas also wrote a concurring opinion. In contrast, he was quite satisfied with the result. He wrote that the Portland case in controlling, but that even if that precedent did not exist, the statute would still compels the result reached by the Court.

Michael PowellMichael Powell Reaction. FCC Chairman Michael Powell (at right) issue a statement. He wrote that "I am disappointed that the Court felt that it was bound by its prior decision and did not address the merits of the Commission's classification. Unfortunately, as noted by Judge O'Scannlain, the ruling ``effectively stops a vitally important policy debate in its tracks,创 producing ``a strange result创 which will throw a monkey wrench into the FCC's efforts to develop a vitally important national broadband policy. I will direct the FCC's General Counsel to appeal."

Supreme Court Denies Certiorari in AT&T v. Ting

10/6. The Supreme Court denied certiorari, without opinion, in AT&T v. Ting, a class action lawsuit challenging provisions of AT&T's Consumer Services Agreement (CSA) as a violation of California law. See, Order List [83 pages in PDF] at page 7.

Darcy Ting brought a class action lawsuit alleging that various provisions of AT&T's CSA violate California's Consumer Legal Remedies Act (CLRA) and Unfair Practices Act. AT&T asserted that California law is preempted by the Communications Act and the filed rate doctrine, and the Federal Arbitration Act (FAA). The U.S. District Court (NDCal) held that certain provisions of the CSA are unconscionable, and in violation of California law, and enjoined their enforcement. It rejected the preemption defense, and enjoined certain provisions of the CSA, including its ban on class actions.

The U.S. Court of Appeals (9thCir) issued its opinion [42 pages in PDF] on February 11, 2003 in which it affirmed in part and reversed in part. See, story titled "9th Circuit Rules in Challenge to AT&T Consumer Services Agreement" in TLJ Daily E-Mail Alert No. 602, February 12, 2003.

The Supreme Court's denial of certiorari lets stand the ruling of the Appeals Court.

This case is AT&T Corp. v. Darcy Ting, et al., Supreme Court No. 02-1521. This is a petition for writ of certiorari to the U.S. Court of Appeals in Darcy Ting and Consumer Action v. AT&T, Appeals Court No. 02-15416. This was an appeal from the U.S. District Court for the Northern District of California, Magistrate Judge Bernard Zimmerman presiding, District Court  No. CV 01-2969 BZ.

Supreme Court Denies Certiorari in AT&T v. U.S.

10/6. The Supreme Court denied certiorari, without opinion in AT&T v. U.S., a case regarding a federal contract. See, Order List [83 pages in PDF], at page 72.

AT&T bid on and won a fixed price incentive contract with the U.S. to develop of an anti-submarine sonar system. AT&T performed the contract at a cost of $91 Million, which was more than the final adjusted contract price of $34.5 Million. AT&T filed a claim with the contracting officer asserting that the contract was invalid based upon the government's failure to comply with Section 8118 Department of Defense Appropriations Act for Fiscal Year 1988.

A divided en banc panel of the Court of Appeals for the Federal Circuit held that Section 8118 provided no basis for declaring the contract void ab initio.

The Solicitor General argued in its brief that Section 8118 "placed conditions on the use of appropriated funds for fixed-price development contracts. Petitioners successfully bid for and performed a fixed-price development contract that did not meet the conditions imposed by Section 8118. The questions presented are: 1. Whether petitioners are entitled to convert the completed contract from a fixed-price contract to a cost-reimbursement contract. 2. Whether petitioners waived their asserted right to be reimbursed on the basis of cost by failing to seek cost-based reimbursement before performance of the contract began."

This case is AT&T Corporation and Lucent Technologies v. U.S., Supreme Court No. 02-1569.

More Supreme Court News

10/6. The Supreme Court denied certiorari, without opinion, in Obabueki v. Choicepoint. See, Order List [83 pages in PDF], at pages 76-7. Obabueki sought employment from IBM. IBM withdrew a job offer when it learned from a criminal background check performed by ChoicePoint that Obabueki had not disclosed on his employment application a conviction that had been vacated and dismissed. He filed a complaint in U.S. District Court (SDNY) against IBM and ChoicePoint alleging violation of the Fair Credit Reporting Act (FCRA), codified at 15 U.S.C. Ё 1681 et seq., and the New York Human Rights Law. The District Court granted judgment as a matter of law to the IBM and ChoicePoint. The Court of Appeals (2ndCir) affirmed. See, opinion.

10/6. The Supreme Court denied certiorari, without opinion, in Imageline v. Xoom, a case involving registration of copyright in CD-ROM clip art packages, statutory damages, and other issues. See, Order List [83 pages in PDF], at page 41. On March 21, 2003, the U.S. Court of Appeals (4thCir) issued its opinion [PDF]. See, story titled "4th Circuit Rules in Copyright Registration Case" in TLJ Daily E-Mail Alert No. 630, March 25, 2003.

10/6. The Supreme Court denied a motion, without opinion, in Dastar v. Twentieth Century Fox. The Court wrote that "The motion of petitioner for attorney fees is denied without prejudice to filing in the United States Court of Appeals for the Ninth Circuit." See, Order List [83 pages in PDF], at page 4. On June 2, 2003, the Supreme Court issued its opinion [18 pages in PDF] reversing the opinion of the U.S. Court of Appeals (9thCir), which had upheld a District Court judgment of violation of the Lanham Act. See, TLJ story titled "Supreme Court Reverses in Dastar v. Fox" , June 2, 2003.

IP Coalition Urges End to Diversion of USPTO Fees

10/3. The 21st Century Intellectual Property Coalition wrote a letter to House Speaker Denny Hastert (R-IL) and other House leaders urging passage of HR 1561 the "United States Patent and Trademark Fee Modernization Act of 2003". The bill was introduced on April 2, 2003 by Rep. Lamar Smith (R-TX).

The Subcommittee on Courts, the Internet and Intellectual Property held a hearing on the bill on April 3, 2003. See, story titled "House CIIP Subcommittee Holds Hearing on USPTO Fees" in TLJ Daily E-Mail Alert No. 637, April 4, 2003.

The House Judiciary Committee amended and approved the bill on July 9, 2003. See, story titled "House Judiciary Committee Approves USPTO Fee Bill" in TLJ Daily E-Mail Alert No. 695, July 10, 2003.

The letter advocates "ending diversion of the user fees" that are paid to the U.S. Patent and Trademark Office (USPTO). HR 1561 would end the current practice of diverting user fees to subsidize other government programs.

The letter also addresses patent quality and patent pendency. It concludes that "America抯 innovators are prepared to pay out of their own pockets to improve the situation at the PTO, provided the money will go to the agency. We urge you to address the crisis facing the patent and trademark system by endorsing an increase in PTO user fees and the end of the practice of fee diversion, as would be achieved by the passage of H.R. 1561."

The Coalition includes 91 companies and 26 associations, including many leading technology companies (such as AMD, Apple, Dell, IBM, HP, Intel, LSI Logic, Microsoft, Motorola, Network Associates, Oracle, Siemens, StorageTek, Sun Microsystems, TI, Unisys, VeriSign, and Xerox), and telecom companies (such as AT&T, BellSouth, Nortel, MCI, and Sprint).

More News

10/6. The AEI-Brookings Joint Center for Regulatory Studies published a paper titled "Is There Such a Thing as Too Much Financial Privacy?", authored by Robert Hahn.

10/3. Alan Davidson of the Center for Democracy and Technology (CDT) wrote a letter to Rep. Lamar Smith (R-TX) and Rep. Howard Berman (D-CA), the Chairman and ranking Democrat on the House Judiciary Committee's Subcommittee on Courts, the Internet and Intellectual Property, raise concerns about HR 2517, the "Piracy Deterrence and Education Act of 2003". The Subcommittee began its mark up of this bill on Thursday, October 2. It is scheduled to resume its mark up at 5:00 PM on Tuesday, October 7, 2003. For example, Davidson states that "Section 3.2, which directs the FBI to facilitate the sharing [of information] among law enforcement agencies, Internet service providers and copyright holders, raises substantial privacy issues for end users." (Brackets in original.)

Notice

The mail servers of some subscribers blocked delivery of yesterday's issue of the TLJ Daily E-Mail Alert. Hence, TLJ Daily E-Mail Alert No. 753, October 6, 2003, is now available in TLJ web site.

Supreme Court Denies Certiorari in Communications Cases

10/6. The Supreme Court begins its October 2003 term. It issued an 83 page Order List [PDF] in which it ruled on numerous accumulated petitioner for writ of certiorari. The Court denied petitions, and thereby let stand Court of Appeals decisions, in several communications cases.

The Court denied certiorari in Alabama Power v. FCC, a case in which power companies raised a Fifth Amendment takings clause challenge in a pole attachments case. See, story titled "Supreme Court Denies Certiorari in Pole Attachments Case", below.

The Court denied certiorari in Ruggiero v. FCC, a case in which a microbroadcaster raised a First Amendment free speech clause challenge to the statute and rule that prohibits him from obtaining a low power FM license on the grounds that he once broadcast without a license. See, story titled "Supreme Court Denies Certiorari in Ruggiero v. FCC", below.

The Court denied certiorari in AT&T v. Ting, a class action lawsuit in which the lower courts enjoined the enforcement of various limitations on legal remedies contained in AT&T's Consumer Services Agreement (CSA) as a violation of California law. See, story titled "Supreme Court Denies Certiorari in AT&T v. Ting", below.

The Court denied certiorari in AT&T v. U.S., a dispute over the amount of payment due under a federal contract. See, story titled "Supreme Court Denies Certiorari in AT&T v. U.S.", below.

Supreme Court Denies Certiorari in Pole Attachments Case

10/6. The Supreme Court denied certiorari, without opinion, in Alabama Power v. FCC, a case regarding pole attachments. See, Order List [83 pages in PDF] at page 72.

The Pole Attachments Act, codified at 47 U.S.C. 224, provides that cable companies may gain access to the pole networks of power companies at rates set by the Federal Communications Commission (FCC). Subsection (f)(1) states that "A utility shall provide a cable television system or any telecommunications carrier with nondiscriminatory access to any pole, duct, conduit, or right-of-way owned or controlled by it."

In this case, the power companies argued that this constitutes a taking under the Fifth Amendment of the Constitution, which provides, "nor shall private property be taken for public use without just compensation".

The U.S. Court of Appeals (11thCir) issued its opinion on November 14, 2002, in which it rejected the taking clause argument. See, story titled "11th Circuit Rules on FCC Pole Attachments Rates" in TLJ Daily E-Mail Alert No. 551, November 18, 2002.

See also, brief of the Solicitor General urging the Supreme Court to affirm the Court of Appeals.

This case is Alabama Power Company v. FCC, Supreme Court No. 02-1474. This is a petition for writ of certiorari to the U.S. Court of Appeals for the 11th Circuit in Alabama Power Company, et al. v. FCC, Appeals Court Nos. 00-14763, 00-15068, and 01-13058. The Appeals Court proceeding was on petitions for review of a final order of the FCC, FCC Docket No. PA 00-00003.

Supreme Court Denies Certiorari in Ruggiero v. FCC

10/6. The Supreme Court denied certiorari, without opinion, in Ruggiero v. FCC. See, Order List [83 pages in PDF], at page 8.

The Federal Communications Commission's (FCC) denied a license to a microbroadcaster named Greg Ruggiero on the basis that he had previously broadcast without a license.

The Radio Broadcasting Preservation Act of 2000 (RBPA) and the FCC's implementing rules required the denial. But, since Ruggiero would have broadcast speech, his First Amendment rights were implicated. Ruggiero asserted that the FCC's denial constituted an unconstitutional content based restraint on speech, and therefore, that the Court should have applied an intermediate scrutiny standard, such as that articulated in FCC v. League of Women Voters, 468 U.S. 364 (1984).

The FCC asserted that its decision was content neutral, and therefore, that the Court should have applied a minimal scrutiny standard, such as that articulated in FCC v. National Citizens Committee for Broadcasting, 436 U.S. 775 (1978).

It was incumbent upon the U.S. Court of Appeals (DCCir) to explain its application of the First Amendment to the facts of this case. A divided three judge panel issued an opinion in which it Ruggiero prevailed. Then, a divided en banc panel issued an opinion in which the FCC prevailed.

The en banc panel provided an outcome (Ruggiero lost), but no explanation. It wrote that "the appropriate standard of review occupies a ground somewhere between the minimal scrutiny advocated by the Commission and the intermediate scrutiny proposed by Ruggiero". It offered the following elaboration: "We need not be more precise".

The Supreme Court could have clarified the uncertainty resulting from this opinion. It could even have taken this case to address more broadly the First Amendment limitations upon regulation of broadcast speech. But, like the Appeals Court, it ducked the issue.

The outcome in this case stands in contrast to the outcomes in other matters. For example, last week the FCC assessed fines, but did not revoke licenses, for broadcasting coverage of sex acts in public places, such as St. Patrick's Cathedral. FCC Commissioner Michael Copps wrote that the FCC's Notice of Apparent Liability for Forefeiture [21 pages in PDF] "provide no more than a slap on the wrist", and that ""The message to licensees is clear. Even egregious repeated violations will not result in revocation of a license." See, story titled "FCC Fines Infinity for Indecent Broadcasts" in TLJ Daily E-Mail Alert No. 752, October 3, 2003. There is also the matter of accounting fraud by FCC licensees.

Judge Tatel made the observation in his dissent to the en banc opinion that "The question presented here is whether unlicensed microbroadcasters, many of whom have already been punished for their misdeeds, may be subjected to a unique and draconian sanction that automatically and forever bars them -- unlike any other violator of the Communications Act or regulations -- from applying for low power licenses regardless of either the circumstances of their offenses or evidence that they can nevertheless operate in the public interest." He wrote that "this double standard is indefensible" and "restricts speech". However, he was in the minority.

See also, stories titled "Appeals Court Overturns Ban on Licensing Former Pirate Broadcasters" in TLJ Daily E-Mail Alert No. 365, February 11, 2002; "DC Circuit Grants Rehearing En Banc in Ruggiero Case" in TLJ Daily E-Mail Alert No. 430, May 13, 2002; and "DC Circuit Adopts "Somewhere Between" Standard in Ruggiero Case" in TLJ Daily E-Mail Alert No. 596, February 3, 2003.

This case is Greg Ruggiero v. FCC, Supreme Court No. 02-1608. The Appeals Court proceeding was Greg Ruggiero  v. FCC, Appeals Court No. 00-1100.

Tuesday, October 7
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 6:30 PM. The House will consider several items under suspension of the rules, including HR 1303, a bill to amend the E-Government Act of 2002 with respect to rulemaking authority of the Judicial Conference. See, Republican Whip Notice.

The Senate is in adjournment until Tuesday, October 14, at 9:30 AM.

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in Jacqueline Orloff v. FCC, No. 02-1189. Judges Sentelle, Randolph and Rogers will preside. See, brief [51 pages in PDF] of the FCC. Location: 333 Constitution Ave. NW.

10:00 AM - 4:00 PM. The Internet Corporation for Assigned Names and Numbers' (ICANN) Security and Stability Advisory Committee (SECSAC) will hold a meeting to gather input regarding VeriSign's recent change to the operation of the registry for the .com and .net Top Level Domains (TLDs). See, notice. Location: Center for Strategic and International Studies (CSIS), 1800 K Street, NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Intouch Group v. Amazon.com, No. 02-1631. This is an appeal from the U.S. District Court (NDCal) in a patent infringement case (D.C. No. C-00-1156-DLJ) involving internet audio technology. Intouch alleged that Amazon's, and others', method of interactive delivery of portions of recorded music infringe its business method patent. See, U.S. Patent No. 5,237,157, titled "Kiosk apparatus and method for point of preview and for compilation of market data", and U.S. Patent No. 5,963,916 titled "Network apparatus and method for preview of music products and compilation of market data". Location: Courtroom 203, 717 Madison Place, NW.

1:30 PM. Mark Cooper of the Consumer Federation of America (CFA) will hold a telephone media briefing regarding "a new study that debunks key arguments used by incumbent local phone companies to support proposed regulatory changes" including "wholesale price increases, the withdrawal of UNEs, and early long distance entry". To participate, call 877-292-2287. The passcode is 287188. The briefing will be available for replay after 5:00 PM by calling 888-266-2081. The passcode for the replay is also 287188. For more information, contact Mark Cooper at 301 384-2204.

5:00 PM. The House Judiciary Committee's Subcommittee on Courts, the Internet, and Intellectual Property will meet to continue its mark up of HR 2517, the "Piracy Deterrence and Education Act of 2003" The Subcommittee began this markup on Thursday, October 2. The meeting will be webcast. Press contact: Jeff Lungren or Terry Shawn at 202 225-2492. Location: Room 2141, Rayburn Building.

Wednesday, October 8.

The House will meet at 10:00 AM for legislative business. The House will consider several items under suspension of the rules, including HR 3159, the "Government Network Security Act of 2003". This bill, which is sponsored by Rep. Henry Waxman (D-CA), Rep. Tom Davis (R-VA), and others, would require federal government agencies to develop and implement plans to protect the security and privacy of government computer systems from the risks posed by peer-to-peer file sharing. See, story titled "House Committee Passes Bill to Restrict P2P File Sharing on Computers and Networks of Federal Agencies" in TLJ Daily E-Mail Alert No. 749, September 30, 2003, See, Republican Whip Notice.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Soitec v. Silicon Genesis, No. 03-1080. This is an appeal from the U.S. District Court (DMass) in a patent infringement case. Soitec SA alleged that Silicon Genesis's silicon-on-insulator (SOI) wafer fabrication technology infringes various patents. This is D.C. No. 99 CV 10826. Location: Courtroom 203, 717 Madison Place, NW.

1:00 - 5:15 PM. The Global Justice Information-Sharing Initiative Federal Advisory Committee will meet to discuss the Global Justice Information-Sharing Initiative. The meeting will continue on October 9. See, notice in the Federal Register, August 21, 2003, Vol. 68, No. 162, at Pages 50556 - 50557. Location: Sheraton Crystal City Hotel, 1800 Jefferson Davis Highway, Arlington, VA.

Thursday, October 9

The House will meet, but no votes are expected. Conference reports may be brought up. See, Republican Whip Notice.

8:00 AM - 5:00 PM. The Business Software Alliance will host an event titled "Global Tech Summit". The agenda includes panels titled "The Next Wave of Innovation", "Transforming Today's Challenges into Tomorrow抯 Realities", and "The Great Digital Transformation". Secretary of Homeland Security Tom Ridge will give the luncheon address. Location: Atlantic Studios, 650 Massachusetts Ave, NW.

CANCELLED. 8:30 - 10:00 AM. The Progress and Freedom Foundation (PFF) will host an event titled "Future of the Internet". The speakers will include Meg Whitman (CEO of eBay) and Phil Bond (Undersecretary of Commerce for Technology). See, notice. To attend, contact Rebecca Fuller at 202 289-8928 or rfuller@pff.org Location: East Room, Washington Mayflower Hotel, 1127 Connecticut Ave., NW.

8:30 AM - 12:00 NOON. The Global Justice Information-Sharing Initiative Federal Advisory Committee will meet to discuss the Global Justice Information-Sharing Initiative. See, notice in the Federal Register, August 21, 2003, Vol. 68, No. 162, at Pages 50556 - 50557. Location: Sheraton Crystal City Hotel, 1800 Jefferson Davis Highway, Arlington, VA.

12:00 NOON - 2:00 PM. The Intellectual Property Section of the D.C. Bar Association will host a luncheon program titled "Intellectual Property Licensing in the High Technology Area". The speakers will be Jon Grossman (Dickstein Shapiro) and Bradley Wright (Banner & Witcoff). The prices to attend vary. Location: D.C. Bar Conference Center, 1250 H Street, NW, B-1 level.

6:00 - 9:00 PM. The Federal Communications Bar Association (FCBA) will host its 2nd Annual Oktoberfest Reception honoring the Federal Communications Commission's (FCC) bureau chiefs. Location: J.W. Marriott Hotel, 1331 Pennsylvania Avenue, NW.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its notice of proposed rulemaking (NPRM) regarding telecommunication relay services (TRS) and speech-to-speech services for individuals with hearing and speech disabilities. This is CG Docket No. 03-123. See, notice in the Federal Register, August 25, 2003, Vol. 68, No. 164, at Pages 50993 - 50998.

Friday, October 10

The House will meet, but no votes are expected. Conference reports may be brought up. See, Republican Whip Notice.

9:15 AM - 5:30 PM. Howard University School of Law (HUSL) will host a one day conference on intellectual property law. At 12:30 PM Judge Paul Michel of the U.S. Court of Appeals (FedCir) will deliver the luncheon address. At 4:30 PM there will be a panel titled "Practicing in the Public Interest: Reshaping IP Policy in a Digital World"; the speakers will be Robert Kasunic (Copyright Office) and Michael Shapiro (U.S. Patent and Trademark Office). See, agenda [PDF]. The price to attend ranges from $150 to $250. Location. HUSL, 2929 Van Ness Street, NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Gemstar-TV Guide v. ITC, No. 03-1052. Location: Courtroom 203, 717 Madison Place, NW.

Monday, October 13

Columbus Day. The FCC will be closed.

Tuesday, October 14

The Supreme Court will hear oral argument in Verizon v. Law Offices of Curtis Trinko, No. 02-682. This is a case involving the application of Section 2 of the Sherman Antitrust Act, 15 U.S.C. 2, in the context of telecommunications. See, TLJ story titled "Supreme Court Grants Certiorari in Verizon v. Trinko", March 10, 2003.

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in Mobilfone Service, Inc. v. FCC, No. 02-1197. Judges Henderson, Tatel and Roberts will preside. Location: 333 Constitution Ave. NW.

10:00 AM. The Senate Banking Committee will hold a hearing on the renominations of Roger Ferguson to be Vice Chairman of the Board of Governors of the Federal Reserve System, and Ben Bernanke to be a member of the Board of Governors. See, notice. Location: Room 538, Dirksen Building.

12:00 NOON - 2:00 PM. The Forum on Technology & Innovation will host a briefing titled "International Challenges to Controlling Spam". For more information, contact Bill Bates at 202 969-3395.

4:00 PM. Clarisa Long (University of Virginia School of Law) will present a draft paper titled "The Patent/Copyright Interface". See, notice. For more information, contact Robert Brauneis at 202 994-6138 or rbraun@law.gwu.edu. Location: George Washington University Law School, Faculty Conference Center, Burns Building, 5th Floor, 716 20th Street, NW.

Deadline to submit comments to the LOCAL Television Loan Guarantee Board's regarding the information and recordkeeping requirements of 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.

People and Appointments

10/6. Rodger Woock was named Chief Economist of the Federal Communications Commission's (FCC) Wireline Competition Bureau. He was previously Director, R&D Engineering at AT&T Broadband Labs in Denver, Colorado. See, FCC release [PDF].

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