Tech Law Journal Daily E-Mail Alert
October 16, 2003, 9:00 AM ET, Alert No. 759.
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FCC Approves SBC Long Distance Applications for  IL, IN, OH & WI

10/15. The Federal Communications Commission (FCC) announced that the Commission adopted a Report and Order approving SBC's Section 271 application to provide in-region interLATA service in the states of Illinois, Indiana, Ohio and Wisconsin. The FCC issued a brief press release [MS Word], but not the Report and Order. The release says little about the Report and Order.

The FCC release states that FCC Commissioners Kevin Martin, Jonathan Adelstein, and Michael Copps each wrote separate statements. The FCC did not release these statements.

On August 26, the Department of Justice's (DOJ) Antitrust Division submitted its evaluation [PDF] to the FCC in which it wrote that "Because serious issues remain concerning SBC's ability to render accurate wholesale bills, the Department is not in a position to support SBC's application based on the current record. The Department does not, however, foreclose the possibility that the Commission may be able to satisfy itself regarding these issues prior to the conclusion of its review."

See, story titled "DOJ Submits Its Evaluation of SBC Long Distance Application for Four States" in TLJ Daily E-Mail Alert No. 728, August 28, 2003.

Meanwhile, AT&T, which will now have to compete with SBC in these four states offered its long distance customers in these four states "30 minutes of free domestic long distance calling on us for a month". See, AT&T release.

This is FCC WC Docket No. 03-167.

4th Circuit Holds That Policy Covering Property Damage Does Not Extend to Damage to Software

10/15. The U.S. Court of Appeals (4thCir) issued its split opinion [21 pages in PDF] in AOL v. St. Paul, a dispute over whether an insurer (St. Paul) has a duty to defend and indemnify its insured (AOL) in a collection of lawsuits brought by AOL users alleging that the version 5.0 of the AOL internet access software had substantial bugs, and was incompatible with their computers' other applications software and operating systems, causing the computers to be damaged. The District Court ruled that St. Paul had no duty under the insurance contract to defend and indemnify. The divided Court of Appeals affirmed.

AOL purchased insurance from St. Paul Mercury Insurance Company. The relevant language of the policy provides that St. Paul will "pay amounts" that AOL "is legally required to pay as damages for covered ... property damage."

The policy defines property damage as physical damage to tangible property of others, including all resulting loss of use of that property; or loss of use of tangible property of others that isn't physically damaged.

The policy also includes an "impaired property" exclusion that provides that St. Paul is not obligated to cover property damage to impaired property, or to property which isn't physically damaged, that results from faulty or dangerous products or completed work, or a delay or failure in fulfilling the terms of a contract or agreement.

Numerous lawsuits were filed against AOL, most of which were consolidated into a single multi-district action in the Southern District of Florida. AOL tendered the defense of these actions to St. Paul, which denied coverage. AOL settled the claims. AOL also filed a complaint in U.S. District Court (EDVa) against St. Paul alleging wrongful denial of coverage. This is a contract action based upon diversity of citizenship, to which Virginia law applies.

The District Court granted summary judgment to St. Paul on the grounds that the computer users' underlying complaints did not allege physical damage to tangible property within the meaning of the insurance policy, and that any damage from loss of use of tangible property fell within a policy exclusion.

AOL appealed. It argued, unsuccessfully, that damage to software is physical damage to tangible property. The Appeals Court affirmed the District Court. Judge Niemeyer wrote the opinion of the Court, in which Judge Wilkinson joined.

Judge Traxler wrote a long dissent. He argued that "Whether computer software should be considered tangible or intangible property is a difficult question that has yet to be definitively answered by the state courts. In my view, however, it is unnecessary to even reach that question, because the allegations of the underlying complaint sufficiently allege damage to the computers themselves, thus bringing the claims against AOL within the scope of the policy’s coverage for claims of ``physical damage to tangible property of others.´´ Accordingly, I respectfully dissent."

This case is America Online, Inc. v. St. Paul Mercury Insurance Company, Nos. 02-2018 and 02-2084, appeals from the U.S. District Court for the Eastern District of Virginia, at Alexandria, Judge Gerald Bruce Lee presiding, D.C. No. CA-01-1636-A.

International Panel Addresses Spam

10/14. The Forum on Technology & Innovation hosted a panel discussion on Capitol Hill titled "International Challenges to Controlling Spam". Sen. John Ensign (R-NV) and Sen. Ron Wyden (D-OR), the Co-Chairs of the Forum, gave introductions. The other panelists were Howard Beales, Director of the Federal Trade Commission's (FTC) Bureau of Consumer Protection, Andrew Pinder, U.K. Prime Minister Tony Blair's e-Envoy, Charles Curran, Assistant General Counsel at America Online, and Paul Judge, Chief Technology Officer at Cipher Trust.

Sen. Wyden used the occasion to describe and promote S 877, the "Controlling the Assault of Non-Solicited Pormography and Marketing Act of 2003", or "CAN-SPAM Act". This bill, which is sponsored by Sen. Conrad Burns (R-MT), Sen. Wyden, and others, was amended and approved by the Senate Commerce Committee on June 19, 2003. See, amendment in the nature of a substitute [36 pages in PDF]. See also, story titled "Senate Commerce Committee Passes Spam Bill" in TLJ Daily E-Mail Alert No. 685, June 20, 2003.

There are numerous other spam related bills pending in the Congress. See, story titled "Spam Bills Pending in the House and Senate" in TLJ Daily E-Mail Alert No. 696, July 11, 2003.

Pinder reviewed spam and privacy related legislation in the European Union and the United Kingdom. He said that the U.K.'s legislation, which flows from an EU Directive, will become effective in December. He summarized that "unauthorized spamming will be an offense", that "people will have a right not to get spam unless they opt in", and that "there is an exception for relationships with existing customers".

He continued that in addition to the legislative ban, there needs to be international cooperation to deal with cross border issues, and new technological innovation, such as firewall and anti-virus technologies.

"Finally, we have started to make links between spamming, on the one hand, and the spread of viruses, on the other", said Pinder. "We regard spamming not just as a matter of nuisance, or a matter of offense, but also, in some respects, a matter of national security. Some of our e-mail systems are at threat through viruses. And many viruses spread using the same techniques as spam. Therefore, one can't really distinguish between the two things. One has got to attack all of it together."

He was also asked to comment on legislative proposals pending in the Congress that would include opt out, rather than opt in, systems. Pinder responded that "We understand why you are taking the approach that you are doing." He added that "We felt that opt in was the strongest. It seems to be acceptable to our business community. And, therefore, that is what we are going with. But having said that, what we are most concerned with, is not whether your legislation is the same as ours, clearly, given the different contexts."

Andrew Miller, a Member of Parliament who attended the luncheon, then rose to address the U.S. Constitution, its First Amendment, and the implications for the regulation of spam. He said that "The question that you need to pose to yourselves, perhaps, is did your forefathers, when drafting this fantastic piece of work, really intent the phrase about Congress not making laws to abridge the freedom of speech actually intent -- of course, they didn't -- did they have the intent to allow people to bombard your homes obscene pormography, to force my 84 year old mother, an invalid living on her own for whom the internet is a great freedom tool. Why should she be forced, as she said to me when I left for this trip, why should she be forced to receive adverts for Viagra.

Miller continued, "Now, this was not in minds of the authors of the Constitution. And what we need to find is a way around this. So, the answer is not in having a debate about who is right and who is wrong in terms of opt in opt out. We all recognize that we have got a very very serious problem that is disrupting businesses. We have got evidence of that. To a degree, it is an offense and an affront to the dignity of many families, and we have got to find practical ways of making our law enforcement agencies cooperate to overcome these difficulties. The opt in opt out argument is a nice academic one, but that isn't going to solve the problem that we are all facing."

The FTC's Beales addressed the nature of the spam problem, and what the FTC is doing about it. He stated that "much of it is already clearly illegal". He said that the FTC has studied spam and found that two thirds, on its face, has some obvious false claim. He added that other spam has other problems, such as offers for the sale of prescription drugs without a prescription, or offers for the sale of illegal cable descramblers. He concluded that only 16 percent of the spam in a sample studied by the FTC did not have some clear problem.

"It is also important to look at who the spam is coming from", said Beales. The FTC studied domain names of those sending spam, and found that none of the senders were Fortune 500 companies. "We are not dealing with legitimate businesses interested in obeying the law. We are dealing, to a considerable extent, with often clearly fraudulent operators, who know perfectly well what the law is, and have chosen to hide behind the anonymity that e-mail makes possible in order to engage in fraud. Part of the difficulty is that e-mail can be sent from anywhere, to anyone in the world, and the recipient doesn't know who sent it."

Beales continued that "A big part of the problem today is that it is possible to stay right here and look like your message came from abroad, by bouncing it off of open relays or open proxies somewhere else around the world."

So, Beales explained that the strategy of the FTC in pursuing fraudulent spammers is "to follow the money."

"If you want to get money from people, then they have to send that money somewhere, somehow in the real world", said Beales. "So, we look for where is the money going. And that has been typically the person that we have prosecuted." However, he added that once they found this person, assets were usually dissipated.

But he said this is difficult. First, domain names are registered with false information. He stated that "you have to try to follow the billing information. But that may be false too. Or, it may be a stolen credit card number. What we typically find in our investigations, is ten or fifteen, or sometimes even more sequential subpoenas as we peel the onion, if you will, to try to figure out where in the real world is the person who is actually doing this. We can do it, but it is slow, and time consuming ..."

Pinder was asked about the Whois database, which lists contact information for domain name registrants. Much of the data submitted is false. Beales responded that the Whois database "is our starting point in all of these investigations." He also said the "we have been closely involved with the Whois issue, because it is very much an enforcement problem for us."

Beales continued that "On the other hand, it is not reasonable to require a full investigation of every domain name registration by the registrars. I think it could make a practical difference, like pull the registration, once you find out that is phony. And, it would help our enforcement efforts considerably. I don't know what the fraction is, but there is ... a surprising number of domains that Mickey has registered."

Beales also answered a question about the idea of a do not e-mail registry similar to the telemarketing do not call registry. He praised the do not call list, but added that "we could not say the same thing about a do not spam list. We can say with considerable confidence that do not call will reduce the number of unwanted calls you get, and it will do it noticeably and significantly and, we think, fairly quickly. We have no confidence at all that that would be true about a do not spam list. And, in fact, the Chairman has said, that his advice to consumers, if there was one, was don't waste your time spending the time to sign up. We just don't think it will work."

AOL's Curran reviewed some of the tools that spammers use to evade the technological measures intended to filter spam. He covered the generation of false header information, abuse of free e-mail services, open proxies and relays, and zombie networks. He stated that open proxies are "currently the dominant form of abuse"

Snow Addresses Executive Stock Options

10/15. Secretary of the Treasury John Snow gave a speech to the Conference Board in New York City in which he addressed, among other topics, stock options for corporate executives. He did not, however, address stock options for rank and file workers, or accounting issues pertaining to stock options.

John SnowSnow (at right) stated that "In retrospect, the whole mess might be understood in part at least as an extension of efforts to tie management compensation to corporate performance. That was the original rationale for most stock option grants, and options serve a good purpose, up to a point. But somewhere along the line they got out of hand. Stock options came to be viewed as a ``freebie,´´ and every economist knows that anything free will be consumed to excess."

"Then, of course, we had the irrational exuberance of the stock market in the late 90s, which led to option payouts far beyond the grantors -- or grantees -- imaginations. Over-reliance on options and the market bubble created the ``perfect storm´´ for corporate America."

"I do not mean to indict stock options", said Snow. "There is a role for options. But options were intended to motivate long-term behavior. They were meant to tie executive compensation to the long-term success of an enterprise. Instead, they too often became a vehicle for near-term cash payouts. Unfortunately in many cases they shortened the time horizon of management and accentuated the ``short-term-itis´´ that addicted the markets in the 90s."

"Their original purpose was twisted, and in many cases managers and boards failed to show the common sense or judgment to back down from the excesses." Snow added that "Public reaction was predictable when managers walked off with millions upon millions after exercising options in companies that then proceeded to unravel -- companies such as Enron, WorldCom, Global Crossing, and Tyco - once darlings of Wall Street.

He concluded that "Corporate America suffered a setback from which it is still reeling. Today, the issue of compensation is center stage. Compensation policy has not yet been fully and appropriately addressed. Addressing it must be a priority for every corporate board."

There are numerous bills pending in the Congress pertaining to stock options. See, for example, HR 1372 and S 979, the "Broad-Based Stock Option Plan Transparency Act of 2003", and S 182 and HR 626, the "Ending the Double Standard for Stock Options Act".

Ridge Addresses Cyber Security

10/9. Secretary of Homeland Security Tom Ridge gave a speech at the Business Software Alliance's (BSA) Global Tech Summit. He addressed, among other topics, cybersecurity.

He spoke about the creation of the Cyber Security Tracking Center and Computer Emergency Response Team (which will work in partnership with Carnegie Mellon's CERT, the Homeland Security Advanced Research Project Agency (HSARPA), and the appointment of Amit Yoran as Director of the National Cyber Security Division of the Information Analysis and Infrastructure Protection office.

Tom RidgeRidge (at right) stated that "as we think about our vulnerabilities, we have to think about redundancies. I think that one of the, the notions that we have in our Department, and we think about it all the time, is the combination of a cyberattack and a physical attack. You can imagine, given the interdependency -- just emergency services alone, responding to a physical attack -- how that could complicate our mission to save lives."

He observed that "the enemies of freedom use the same technology that we do."

He also reviewed several of the things the Department of Homeland Security has done in the area of cybersecurity. He said, "We've created a Cyber Security Tracking Center to monitor incidents and coordinate our nationwide response. We'll be aided by our Computer Emergency Response Team, or U.S. CERT." He added that "It's a new partnership with Carnegie Mellon University, which will grow to include many members of the business community. We're going to need your help here. We can't get this done by ourselves. The connections you make, and the network you establish in support of the U.S. CERT will go a long way in helping us achieve our goal of reducing our vulnerability to cyberattacks."

Ridge continued that "I want to say we are also going to continue to invite more companies to join these information-sharing and analysis centers. They are critical to our effort to secure the homeland. We will continue to inform them of new threats and incidents."

He also talked about the HSARPA. He stated that "we don't have it completely configured the way we want it yet, but the notion that on an annual basis, we will be investing hundreds of millions of dollars in a similar fashion, to take advantage of the creativity and innovation of this country, I think is -- should give you, and certainly Americans, some comfort that we don't have the solution, it's out there and it's on the way."

He also talked about the appointment of Amit Yoran. (See, September 15, 2003 release of DHS announcing appointment of Yoran.)

Ridge said that "he was a highly respected -- he's a member of your alliance. He was out of the -- actually, he started the company and sold it to Symantec. ... So he's actually going to oversee our cyber security operation within the Department."

People and Appointments

10/14. Nancy Higgins was named EVP of Ethics and Business Conduct and Chief Ethics Officer of MCI WorldCom. She was previously VP, Ethics and Business Conduct, for Lockheed Martin. She will report to Ch/CEO Michael Capellas. See, release.

10/15. President Bush nominated Robert McFarland to be Assistant Secretary of Veterans Affairs (Information & Technology). He was previously VP for government relations with Dell. See, White House release.

Thursday, October 16

The House will meet at 10:00 AM for legislative business. See, Republican Whip Notice.

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

9:30 AM or 10:00 AM? The Senate Judiciary Committee will hold an executive business meeting. The agenda includes consideration of Henry Saad to be a Judge of the U.S. Court of Appeals (6thCir), George Miller to be a Judge of the U.S. Court of Federal Claims, and Dora Irizarry to be a Judge of the U.S. District Court (EDNY). See, notice. Press contact: Margarita Tapia (Hatch) at 202 224-5225 or David Carle (Leahy) at 202 224-4242. Location: Room 226, Dirksen Building.

RESCHEDULED FOR OCTOBER 30-31. 10:00 AM. The House Ways and Means Committee will hold a hearing titled "United States - China Economic Relations and China's Role in the Global Economy". See, notice. Location: Room 1100, Longworth Building.

10:00 AM. The House Government Reform Committee will hold a hearing titled "You've Got Mail -- But Is It Secure? An Examination of Internet Vulnerabilities Affecting Businesses, Governments, and Homes". Press contact: David Marin at 202 225-5074. Location: Room 2154, Rayburn Building.

12:30 PM. The Congressional Caucus on Intellectual Property Promotion and Piracy Prevention and former Commissioners of the U.S. Patent and Trademark Office (USPTO) will hold a press conference to urge the House leadership to schedule a vote on HR 1561, the "United States Patent and Trademark Fee Modernization Act of 2003", a bill that would, among other things, end the diversion of USPTO fees. Press contact: Lale Mamaux (Office of Rep. Wexlar) at 202 225- 3001 or Location: Room 505, Cannon Building.

3:00 PM. The House Judiciary Committee's Subcommittee on Courts, the Internet, and Intellectual Property will meet to mark up HR 3261, the "Database and Collections of Information Misappropriation Act of 2003". Press contact: Jeff Lungren or Terry Shawn at 202 225-2492. Location: Room 2141, Rayburn Building.

Friday, October 17

The House will meet at 9:00 AM for legislative business. See, Republican Whip Notice.

8:15 AM - 2:30 PM. The McDonough School of Business (MSB) at Georgetown University will host a seminar titled "Seeking Efficiency, Investment and Competition: The Chief Economists Speak Out". The speakers will be the former Chief Economists of the Federal Communications Commission (FCC): Joseph Farrell, Gerald Faulhaber, Tom Hazlett, Michael Katz, Michael Riordan, William Rogerson, David Sappington, Howard Shelanski, and Simon Wilkie. Glenn Hubbard, former Chairman of the President's Council of Economic Advisors, will be the luncheon speaker. The price to attend is $50 (public), $30 (government), and free (students). For more information, contact Kelly Castellon at 202 687-3686. The MSB notice states that "Reporters wishing credentials to attend must contact Jessica Botta in advance at (202) 687-4080 or at". Location: The Grand Hyatt, 1000 H Street, NW.

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in Sioux Valley Rural Television v. FCC, No. 02-1208. Judges Henderson, Tatel and Roberts will preside. Location: Courtroom 20, 333 Constitution Ave. NW.

RESCHEDULED FOR OCTOBER 30-31. 10:00 AM. The House Ways and Means Committee will continue its hearing titled "United States -- China Economic Relations and China's Role in the Global Economy". See, notice. Location: Room 1100, Longworth Building.

2:30 - 4:30 PM. Federal Communications Commission (FCC) International Bureau (IB) will hold a public forum to examine the methods and practices the FCC used in preparation for 2003 World Radioconference (WRC-03), and to assess whether the process can be improved. The FCC seeks public views on how the FCC could further facilitate public participation, increase transparency, intensify its international outreach and generally promote public interest goals in the WRC preparatory process. See, notice [PDF]. Location: FCC, Commission Meeting Room (Room TW-C305), 445 12th Street, SW.

3:00 PM. The U.S. District Court (DC) will hold a meeting and conference hearing in Conversent Communications v. AT&T, D.C. No. 1:2001-cv-1198. Location: Courtroom 14, 333 Constitution Ave. NW.

Deadline to submit requests to the Trade Policy Staff Committee (TPSC) to testify at its November 5, 2003 hearing on negotiations with Bahrain on a free trade agreement (FTA). The TPSC seeks comments and testimony to assist the Office of the U.S. Trade Representative (USTR) on many topics, including "Relevant trade-related intellectual property rights issues that should be addressed in the negotiations" and "Existing barriers to trade in services between the United States and Bahrain that should be addressed in the negotiations". See, notice in the Federal Register, August 25, 2003, Vol. 68, No. 164, at Pages 51062 - 51064.

Deadline for the Federal Trade Commission (FTC) to submit its brief to the U.S. Court of Appeals (10thCir) in FTC v. Mainstream Marketing Service, No. 03-1429. This is the telemarketers' constitutional challenge to the FTC's do not call registry. See, October 8, 2003 order [24 pages in PDF] staying the District Court's opinion, and setting an expedited schedule.

Sunday, October 19

Day one of a three day conference titled "Networked Economy Summit". See, event web site and agenda. Location: Hyatt Regency Reston, Reston, VA.

Monday, October 20

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in Global Naps v. FCC, No. 02-1202. Judges Edwards, Garland and Williams will preside. Location: 333 Constitution Ave. NW.

10:00 AM - 3:00 PM. The Federal Communications Commission's (FCC) Technological Advisory Council will meet. See, notice in the Federal Register, October 2, 2003, Vol. 68, No. 191, at Pages 56840 - 56841. This meeting will focus on voice over internet protocol (VOIP). There will be no public presentations, but the FCC is accepting written comments. See, FCC notice. Location: FCC, 445 12th St. SW, Room TW-C305.

12:15 PM. The Federal Communications Bar Association's (FCBA) Common Carrier Practice Committee will host a brown bag lunch titled "Meet the 8th Floor Common Carrier/Wireline Competition Legal Advisors". The scheduled speakers are Christopher Libertelli, Matthew Brill, Jessica Rosenworcel, Daniel Gonzalez, and Lisa Zaina. RSVP to Cecelia Burnett at 202-637-8312 or Location: Hogan & Hartson, 555 13th St., NW, Lower Level.

6:00 - 8:15 PM. Intellectual Property Section of the D.C. Bar Association will host a CLE course titled "Transactions Involving Intellectual Property, Part I: Intellectual Property in Mergers and Acquisitions Including Tax Considerations". Prices vary. For more information, call 202 626-3488. Location: D.C. Bar Conference Center, 1250 H Street NW, B-1 level.

Day one of a two day conference hosted by the Department of Commerce's (DOC) Bureau of Industry and Security (BIS) titled "16th Annual Update Conference on Export Controls and Policy". Kenneth Juster, Under Secretary for BIS, will speak at 8:30 AM. See, notice and agenda. The price to attend ranges from $625 to $700. Location: Renaissance Hotel, 999 9th Street, NW.

Day two of a three day conference titled "Networked Economy Summit". See, event web site and agenda. Location: Hyatt Regency Reston, Reston, VA.

Deadline to submit comments to the National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) regarding its draft Special Publication 800-38C, Recommendation for Block Cipher Modes of Operation: the CCM Mode for Authentication and Confidentiality [PDF]. The NIST stated that "the CCM mode of the Advanced Encryption Standard (AES) algorithm is specified for the protection of sensitive, unclassified data. The CCM algorithm combines the counter (CTR) mode for confidentiality with the cipher block chaining-message authentication code (CBC-MAC) technique for authentication." Send comments to

Tuesday, October 21

7:30 AM - 12:45 PM. The Cato Institute will host a half day conference titled "Who Rules the Net? Debating Internet Jurisdiction and Governance". The speakers will include Rep. Christopher Cox (R-CA) (Chairman of the Republican House Policy Committee), Tim Wu (University of Virginia Law School), David Post (Temple University Law School), Bruce Kobayashi (George Mason University School of Law), Peter Trooboff (Covington & Burling), Gary Jackson (Quova), Robert Corn-Revere (Davis Wright Tremaine), Kurt Wimmer (Covington & Burling), Michael Greve (American Enterprise Institute), Jonathan Band (Morrison & Foerster), Marc Pearl (IT Policy Solutions), and Jeffrey Kovar (Deptartment of State). See, notice. To register, contact Krystal Brand at 202 789-5229 of Location: Cato, 1000 Massachusetts Ave., NW.

10:00 AM. The Senate Judiciary Committee will hold a hearing to examine criminal terrorism investigations and prosecutions relating to national security. See, story titled "Senate Judiciary Committee to Hold Hearings on Combatting Terrorism and Protecting Liberties" in TLJ Daily E-Mail Alert No. 757, October 14, 2003. Press contact: Margarita Tapia (Hatch) at 202 224-5225 or David Carle (Leahy) at 202 224-4242. Location: Room 226, Dirksen Building.

Day two of a two day conference hosted by the Department of Commerce's (DOC) Bureau of Industry and Security (BIS) titled "16th Annual Update Conference on Export Controls and Policy". See, notice and agenda. The price to attend ranges from $625 to $700. Location: Renaissance Hotel, 999 9th Street, NW.

Day three of a three day conference titled "Networked Economy Summit". See, event web site and agenda. Location: Hyatt Regency Reston, Reston, VA.

Thursday, October 23

8:15 AM. The George Washington Law Review at the George Washington University Law School (GWULS) will host a day long conference titled "Internet Surveillance, Privacy & USA PATRIOT Act". To register, contact Amanda Johnson at Location, GWULS, 2000 H Street, NW.

8:30 AM - 3:30 PM. The Association for Maximum Service Television will host an event titled "MSTV 17th Annual Fall Conference: Digital Covalence". The speakers will include Sen. Conrad Burns (R-MT), Will Nordwind (House Commerce Committee), Greg Rothschild (HCC), Bruce Franca (Deput Chief of the FCC's Office of Engineering and Technology), Paul Galante (Advisor to FCC Chairman Michael Powell), Johanna Mikes (Advisor to FCC Commissioners Adelstein), and Catherine Bohigian (Advisor to FCC Commissioner Kevin Martin). The price to attend is $300. Location: Park Hyatt Hotel, 24th & M Streets, NW.

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in AT&T v. FCC, No. 02-1221. Judges Ginsburg, Edwards, and Garland will preside. Location: 333 Constitution Ave. NW.

11:45 AM. The Cato Institute will host a panel discussion titled "Online Gambling: Lessons from the Internet and Illegal Bookmakers". The speakers will be Rep. Barney Frank (D-MA), Mike Knesevitch (, Koleman Strumpf (UNC Chapel Hill), Raymond Sauer (Clemson University), and Justin Wolfers (Stanford Business School). See, notice and registration page. The event will be webcast. Lunch will be served after the program. Location: Cato, 1000 Massachusetts Ave., NW.

12:15 PM. The Federal Communications Bar Association's (FCBA) Cable Practice Committee will host a brown bag lunch. The speaker will be Jordan Goldstein, Senior Legal Advisor to FCC Commissioner Michael Copps. For more information, contact Catherine Bohigian at RSVP to: Location: NCTA, 1724 Massachusetts Ave, NW.

4:00 PM. Roberta Kwall (DePaul University College of Law) will present a paper titled "In the Beginning ... The Impact of Genesis on Innovation". See, notice. For more information, contact Robert Brauneis at 202 994-6138 or Location: George Washington University Law School, Faculty Conference Center, Burns Building, 5th Floor, 716 20th Street, NW.

TIME? Joseph Liu (Boston College of Law) will give a lecture titled "Rationalizing Trademark Defenses". This is a part of Georgetown University Law Center's (GULC) Colloquium on Intellectual Property & Technology Law Series. For more information, contact Julie Cohen at 202 662-9871. Location: GULC, 600 New Jersey Ave., NW.

Deadline to submit reply comments to the Federal Communications Commission (FCC) regarding its notice of proposed rulemaking (NPRM) pertaining to its rules governing the provision of air ground telecommunications services on commercial airplanes in order to enhance the options available to the public. The FCC adopted this NPRM on April 17, 2003, and released it on April 28, 2003. This is WT Docket No. 03-103. See, notice in the Federal Register, July 25, 2003, Vol. 68, No. 143, at Pages 44003 - 44011.

Deadline to submit requests to the Internal Revenue Service (IRS) to speak at its October 23, 2003 hearing regarding its notice of proposed rulemaking (NPRM) regarding computation and allocation of the credit for increasing research activities for members of a controlled group of corporations or a group of trades or businesses under common control. The rules implement the research and development tax credit codified at 26 U.S.C. § 41. See, notice in the Federal Register, July 29, 2003, Vol. 68, No. 145, at Pages 44499 - 44506.

More News

10/15. The Federal Communications Commission (FCC) announced the removal of one item from the agenda for its Thursday, October 16, meeting. The FCC will not consider an Order to resolve issues raised in the Auction No. 52 Comment Public Notice related to the FCC's authority to auction Direct Broadcast Satellite (DBS) licenses and eligibility for the DBS licenses currently available. See, FCC release [PDF]. See also, the FCC web page titled "Auction 52: Direct Broadcast Satellite Service". This is AUC-03-52.

10/15. Rep. Tom Davis (R-VA), the Chairman of the House Government Reform Committee, wrote a letter to Stephen Perry, Administrator of the General Services Administration (GSA), regarding the General Accounting Office's (GAO) report titled "Planned E-Authentication Gateway Faces Formidable Development Challenges".  He wrote to express concern with the progress of the GSA's "implementation of its E-Authentication initiative and the challenges associated with developing the E-Authentication Gateway, which is the cornerstone of the initiative". Rep. Davis continued that "September 2003 was the original deadline for the E-Authentication Gateway to be operational.  That goal has now been pushed back to March 2004.  Based upon the limited progress cited by GAO, there is real doubt whether this project can be completed, even by the revised date.  This raises many concerns because of the potential this delay has to adversely affect the development of the other 24 OMB E-Government initiatives."

10/15. Several interest groups praised S 1709, the "Security and Freedom Ensured Act of 2003", or SAFE Act. This is another bill to roll back a few of the more controversial provisions of the USA PATRIOT Act. It was introduced on October 2 by Sen. Larry Craig (R-ID), Sen. Richard Durbin (D-IL), Sen. Mike Crapo (R-ID), Sen. Russ Feingold (D-WI), Sen. John Sununu (R-NH), Sen. Ron Wyden (D-OR), and Sen. Jeff Bingaman (D-NM). See, story titled "Senators Craig and Dubin Introduce Bill to Modify PATRIOT Act" in TLJ Daily E-Mail Alert No. 753, October 6, 2003, and "Sen. Leahy Introduces Bill to Expand List of Surveillance Provisions of PATRIOT Act to Be Sunsetted" in TLJ Daily E-Mail Alert No. 757, October 14, 2003. The Senate Judiciary Committee has schedule a hearing to examine criminal terrorism investigations and prosecutions relating to national security for 10:00 AM on Tuesday, October 21. The groups supporting S 1709 included the Center for Democracy and Technology (CDT), Free Congress Foundation (FCF), American Library Association (ALA), the American Conservative Union (ACU) and others. See, CDT release and ACLU release.

10/15. The Progress & Freedom Foundation (PFF) released a report [60 pages in PDF] titled "Taxes and Regulation: The Effects of Mandates on Wireless Phone Users", by Thomas Lenard and Brent Mast of the PFF. See also, PFF release.

10/14. Sen. John Cornyn (R-TX) and Sen. Kay Hutchison (R-TX) introduced S 1720, a bill to provide for federal court proceedings in Plano, Texas. The bill was referred to the Senate Judiciary Committee. Plano was once a small town north of Dallas. It lies in the Sherman Division of the Eastern District of Texas. The Dallas Ft. Worth metropolitan area has grown to encompass Plano, which now has a quarter million people, and the facilities of many high tech companies. Almost all of the Dallas Ft.Worth metropolitan area lies in the Northern District of Texas. This bill would leave Plano in the Eastern District, but amend 28 U.S.C. § 124(c)(3) to provide that the Court for the Sherman Division shall be held at both Sherman and Plano. Plaintiffs frequently file lawsuits against large technology companies with minimal ties to the Eastern District of Texas in the Eastern District of Texas. See for example, Sendo v. Microsoft, Cisco v. Huawei and FutureWei, Microtune v. Broadcom, BellAtlantic v. AT&T, Intergraph v. Intel, McClure v. AOL Time Warner, MIT v. Abacus Software, and many other cases. Although, the Texarkana Division appears to be the most popular with plaintiffs' lawyers.

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