10/27. The Federal Trade Commission (FTC) announced that it will host a media roundtable discussion on Tuesday, October 28, at 11:00 AM, to provide background information and answer questions about an FTC report titled "To Promote Innovation: The Proper Balance of Competition and Patent Law and Policy."

In 2002 the FTC and the Department of Justice's (DOJ) Antitrust Division jointly held 22 days of hearings, mostly in Washington DC, but also around the U.S., under the general title of "Competition and Intellectual Property Law and Policy in the Knowledge-Based Economy". The FTC has collected most of the prepared testimony of the speakers in a web site devoted to this topic.

The FTC stated in an October 27 notice that "This is the first of two reports that stem from hearings convened in February 2002 by the FTC and the Department of Justice. Each report discusses finding and maintaining the proper balance of free market competition and patent law and policy. This report makes 10 recommendations for the patent system, including legislative and regulatory changes to improve patent quality."

The speakers will include FTC Chairman Timothy Muris and Susan DeSanti (Deputy General Counsel for Policy Studies).

The FTC notice also states that "Reporters unable to attend the event may call in. The call-in information is as follows: Dial-in Number: 1-877-777-0937. Confirmation Number: 20019380." The event will be held at the FTC, Room 432, 600 Pennsylvania Ave., NW.

10/27. The Department of Justice (DOJ) created a web site titled "Preserving Life and Liberty", which describes the changes in law brought about in 2001 by passage of the USA PATRIOT Act. The website includes a page that responds to some of the criticisms of the PATRIOT Act, and a page with hyperlinks to some of Attorney General John Ashcroft's speeches.

Ashcroft, however, has not testified before the Congress since last Spring. Senate Judiciary Committee Democrats criticized Ashcroft at a hearing on October 21 (which Ashcroft did not attend) for waging a publicity campaign. See, story titled "Senate Committee Holds Hearing on PATRIOT Act" in TLJ Daily E-Mail Alert No. 763, October 22, 2003.

On October 27, the Center for Democracy and Technology (CDT), which is one of the leading critics of the PATRIOT Act's provisions affecting electronic surveillance, published a short report titled "Setting the Record Straight: An Analysis of the Justice Department's PATRIOT Act Website".

On October 24, Steve Lilienthal of the Free Congress Foundation's (FCF) Center for Technology Policy (CTP), another critic of the PATRIOT Act, wrote in a FCF/CTP newsletter, that Ashcroft "went on tour" to defend the PATRIOT Act after the House passed Rep. Butch Otter's (R-ID) amendment regarding delayed notice of search warrants. This was House Amendment No. 292 to HR 2799, the Commerce, Justice, State and the Judiciary, and Related Agencies Appropriations Act for FY 2004.  The House approved the Otter amendment by a vote of 309-118 on July 22, 2003. See, Roll Call No. 408.

Lilienthal wrote that "Unfortunately, the Attorney General failed to engage in a true debate with those citizens and organizations that have expressed serious concerns about the powers contained within the Act."

10/24. The Federal Communications Commission (FCC) filed with the U.S. Court of Appeals (DCCir) its brief [21 pages in PDF] in opposition to the Cellular Telecommunications & Internet Association's (CTIA) Petition for Writ of Mandamus pertaining to several outstanding implementation issues regarding number portability.

The FCC has set November 24, 2003 as the deadline for providing wireless LNP. On September 24, the Court of Appeals ordered the FCC to file a response to the CTIA's petition. See, story titled "Appeals Court Orders FCC to Respond to Petitions for Writ of Mandamus Regarding Number Portability" in TLJ Daily E-Mail Alert No. 749, September 30, 2003.

The FCC argues that "CTIA has not made out a case of unreasonable delay, for the following reasons: (1) the FCC is not obligated to resolve the CTIA petitions by a specific statutory deadline; (2) the issues raised in the petitions do not have to be resolved before November 24, 2003, in order for wireless number portability to go forward on that date; (3) the agency’s resources are currently pressed by a number of other important issues; and (4) the CTIA petitions have been pending at the agency for less than a year – in fact, one petition has been pending for less than half a year. Moreover, FCC staff is finalizing a draft order that is to be placed on circulation before the Commission shortly. Because the FCC is ``moving expeditiously´´ to resolve the issues raised by CTIA in its mandamus request, this Court should deny the petition."

This case is In Re Cellular Telecommunications & Internet Association, U.S. Court of Appeals for the District of Columbia, No. 03-1270.

10/24. The Progress And Freedom Foundation (PFF) released a paper [18 pages in PDF] titled "Subpoena Wars: RIAA v. Verizon", by James DeLong of the PFF. The report predicts that the "content companies' victory will probably stand on appeal." It adds that this will be because of "the language of the statute and on the congressional intent to deal with the whole problem."

Internet service providers (ISPs), and especially Verizon and SBC, as well as privacy advocates, have argued that subpoenas issued by the U.S. District Court (DC), pursuant to Section 512 of the Digital Millennium Copyright Act (DMCA), that direct ISPs to provide information about subscribers alleged to be engaging in P2P copyright infringement over the ISPs' networks, are invalid.

There are also proposals that the Congress should revise the subpoena provisions of Section 512. However, on September 18, Rep. Lamar Smith (R-TX), the Chairman of the House Judiciary Committee's Courts, the Internet and Intellectual Property Subcommittee, stated that his subcommittee will not revisit the DMCA subpoena issue. See, story titled "Rep. Lamar Smith Says House CIIP Subcommittee Won't Revisit DMCA Subpoena Issue" in TLJ Daily E-Mail Alert No. 742, September 18, 2003.

Nevertheless, the PFF paper makes further legislative proposals. It argues that "the most serious and meritorious claim of the ISPs is the cost recovery issue, something not at issue in the current law suits. Solving this could be the subject of private negotiation, however. It would not require new legislation."

The cost recovery issue was raised by Pacific Bell Internet Services in another lawsuit challenging Section 512 subpoenas. See, story titled "Pacific Bell Internet Services Sues RIAA Over DMCA Subpoenas" in TLJ Daily E-Mail Alert No. 709, August 1, 2003.

The PFF paper also states that "Any claim of privacy by the music downloaders is weak, especially because they themselves control what files are made available over the Internet. They only files accessible by the copyright police are those that have been designated as available for sharing."

It also concludes that the "cyberstalking issues and other possible abuses must be regarded as worrisome, but the problem has not been shown to be real, nor is it clear that the sanctions available would not be effective. With respect to mistakes, adequate sanctions are available to deter the content owners from acting sloppily on the theory that they can shift the costs of error to the targets."

It adds that "There is a legitimate concern about issues related to the breadth of copyright protection and the possible application of subsection 512(h) to emails, chatroom debate and similar writings. But this potential problem remains inchoate, and might best be fixed by judicial action to clarify the doctrine of fair use, not by a roundabout route of leaving the right fuzzy but undermining enforcement."

Finally, it concludes that "an ISP policy of notifying the targets of subpoenas would do much to forestall any real-world problems that might arise. The costs of this procedure could be incorporated into any reimbursement scheme. If problems do exist, then relatively minor changes in the system should be adequate to address the problems."

See also, stories titled "RIAA Seeks to Enforce Subpoena to Identify Anonymous Infringer" in TLJ Daily E-Mail Alert No. 499, August 27, 2002; "Verizon and Privacy Groups Oppose RIAA Subpoena" in TLJ Daily E-Mail Alert No. 501, September 4, 2002; "District Court Rules DMCA Subpoenas Available for P2P Infringers" in TLJ Daily E-Mail Alert No. 588, January 22, 2003; "Law Professor Submits Apocalyptic Declaration in RIAA v. Verizon" in TLJ Daily E-Mail Alert No. 596, February 3, 2003; "DOJ Files Brief in Support of RIAA in Verizon Subpoena Matter" in TLJ Daily E-Mail Alert No. 646, April 22, 2002; "District Court Rules That A DMCA § 512(h) Subpoena for the Identity of an P2P Infringer Does not Violate the Constitution" in TLJ Daily E-Mail Alert No. 649, April 25, 2003; and "Court of Appeals Denies Stay in RIAA v. Verizon" in TLJ Daily E-Mail Alert No. 674, June 5, 2003.

10/24. The Cato Institute releases a paper [40 pages in PDF] titled "The Internet Tax Solution: Tax Competition, Not Tax Collusion", by Adam Thierer and Veronique de Rugy. See also, executive summary.

The paper addresses the Internet Tax Freedom Act (ITFA), which was first passed in 1998, was extended in 2001, and is set to expire on November 1, 2003. The House has passed a bill to permanently extend it. The Senate has not -- yet.

The paper states that the ITFA "has been a remarkably misunderstood or misinterpreted statute and has very little to do with what really lies at the heart of this debate -- the effort by state and local governments to collect sales and use taxes on remote vendors in interstate commerce (mail order, catalog, and e-commerce companies). Contrary to press reports and statements made by some members of Congress, the ITFA moratorium does not directly affect the ability of states and localities to impose sales and use taxes on purchases made over the Internet."

"What state and local officials are really at war with is not the ITFA but 30 years of Supreme Court jurisprudence that has not come down in their favor", such as the Supreme Court's opinion in Quill v. North Dakota, 504 U.S. 298 (1992).

This case provides that state and local taxing authorities are barred under the Commerce Clause from requiring remote sellers without a substantial nexus to the taxing jurisdiction to collect sales taxes for sales to persons in the jurisdiction. However, the Court added that Congress may extend such authority. Congress has passed no legislation pertaining to sales and use taxes.

The paper argues that "Their ultimate goal is to overturn those precedents, which held that states could require only firms with a physical presence -- or ``nexus´´ -- in their jurisdictions to collect taxes on their behalf. State and local tax officials have worked to eliminate or water down these restrictions on their tax reach but thus far have not been able to get around them or convince Congress to authorize the imposition of collection obligations on interstate vendors."

The paper recommends that "It would be wrong for members of Congress to abdicate their responsibility to safeguard the national marketplace by giving the states carte blanche to tax interstate commercial activities through a tax compact. The guiding ethic of this debate must remain tax competition, not tax collusion."

9/30. The U.S. District Court (DMd) issued an opinion [12 pages in PDF] in Electronic Broking v. E-Business Solutions, a case regarding personal jurisdiction based on internet activity.

The complaint alleges federal trademark infringement in violation of the Lanham Act, 15 U.S.C. §1125(a), and unfair competition arising from the defendants' alleged use of the trademark "Electronic Broking Services, Limited" in connection with the sale of electronic products and services to the banking and financial services industry. The defendants also had a customer in the state of Maryland, where the complaint was filed.

The Court concluded that the "Defendants' contacts with Maryland do not rise to the level of ``minimum contacts´´ necessary to constitutionally subject them to either general or specific personal jurisdiction in this court. There is no evidence that they directed E-Business Solutions' semiinteractive website into Maryland with the explicit intent of targeting Maryland residents, nor do their Internet activities amount to the type of ``continuous and systematic´´ contacts required for general jurisdiction. Although the defendants have engaged in business with one Maryland corporation, which they contend was related to matters in Africa, Electronic Broking has failed to allege facts regarding the nature and extent of such business dealings sufficient to show a "substantial connection" between the defendants and Maryland. Furthermore, asserting jurisdiction over the defendants in this forum would violate traditional notions of fair play and substantial justice given the considerable burden on the defendants and the limited interests of the plaintiff and the forum in adjudicating the dispute in Maryland."

The District Court dismissed for lack of jurisdiction. This case is Electronic Broking Services, Limited v. E-Business Solutions & Services, et al., D.C. No. JFM-03-1350, Judge Frederick Motz presiding.

10/27. The Department of Commerce's (DOC) Technology Administration (TA) published a notice in the Federal Register requesting nominations of individuals for appointment to the National Medal of Technology Nomination Evaluation Committee (NMTNEC). The notice states that "Typically, Committee members are present or former Chief Executive Officers, former winners of the National Medal of Technology; presidents or distinguished faculty of universities; or senior executives of non-profit organizations." Nominations are due by November 26. See, Federal Register, October 27, 2003, Vol. 68, No. 207, at Page 61190.

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 will consider HRes 395, regarding National Chemistry Week, and HConRes 279, regarding commitment to support the use of science in governmental decision making. The other items on the agenda are not tech related. See, Republican Whip Notice.

9:00 AM. The House Ways and Means Committee will meet to mark up HR 2896, the "American Jobs Creation Act of 2003". This bill would, among other things, replace the FSC & ETI tax regimes that the WTO held to be illegal export subsidies. Location: Room 1100, Longworth Building. This mark up was previously scheduled for Monday, October 27.

10:00 AM. The Senate Judiciary Committee will hold a hearing on the nominations of Claude Allen (to be a Judge of the U.S. Court of Appeals for the 4th Circuit) and Mark Filip (to be Judge of the U.S. District Court for the Northern District of Illinois). See, notice. Press contact: Margarita Tapia (Hatch) at 202 224-5225 or David Carle (Leahy) at 202 224-4242. Location: Room 226, Dirksen Building.

11:00 AM. The Federal Trade Commission (FTC) will host a media roundtable regarding the FTC report titled "To Promote Innovation: The Proper Balance of Competition and Patent Law and Policy". The speakers will include FTC Chairman Timothy Muris and Susan DeSanti (Deputy General Counsel for Policy Studies). The FTC notice also states that "Reporters unable to attend the event may call in. The call-in information is as follows: Dial-in Number: 1-877-777-0937. Confirmation Number: 20019380." Location: FTC, Room 432, 600 Pennsylvania Ave., NW.

12:00 NOON. The Cato Institute will host a book forum. Charles Murray will discuss his book (due for release on October 21) titled Human Accomplishment: The Pursuit of Excellence in the Arts and Sciences, 800 B.C. to 1950. See, Amazon page. Lunch will follow the program. Location: Cato, 1000 Massachusetts Ave., NW.

6:00 - 9:15 PM. The Intellectual Property and International Law sections of the D.C. Bar Association will host a CLE course titled "Practical Guide to U.S. Implementation of the Madrid Protocol". Prices vary. For more information, call 202 626-3488. Location: D.C. Bar Conference Center, 1250 H Street NW, B-1 level.

Deadline to submit comments to the Office of Management and Budget (OMB) regarding its proposal "to issue new guidance to realize the benefits of meaningful peer review of the most important science disseminated by the federal government regarding regulatory topics." See, OMB document [14 pages in PDF] titled "Peer Review and Information Quality".

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

10:00 AM - 5:30 PM. Day one of a two day event hosted by the Federal Communications Commission (FCC) titled "E911 Coordination Initiative". The event will address legal, regulatory, technical, and financial issues that arise in the implementation of wireless enhanced 911 services. See, letter [PDF] from Chairman Powell, and FCC release [PDF]. The event will be webcast. Location: FCC, Commission Meeting Room, 445 12th St., SW.

10:00 AM - 12:00 NOON. The Department of State's (DOS) Advisory Committee on International Communications and Information Policy (ACICIP) will meet. Ambassador David Gross, U.S. Coordinator for International Communications and Information Policy, is scheduled to attend. The agenda includes "communications policy issues, future directions of the Committee's work, discussion regarding countries of particular interest to the ACICIP, preparations for the World Summit on the Information Society, and consultation regarding the most important emerging technologies". See, notice in the Federal Register, October 10, 2003, Vol. 68, No. 197, at Page 58744. Location: Room 1107, Harry S. Truman Building, 2201 C Street, NW.

12:00 NOON. The Federal Communications Bar Association's (FCBA) Online Communications Practice Committee will host a brown bag lunch on wireline broadband issues. The speaker will be Jessica Rosenworcel, Legal Advisor to FCC Commissioner Michael Copps. RSVP to heidi@fcba.org. Location: Cole Raywid & Braverman, 1919 Pennsylvania Ave., NW, Suite 200.

12:15 PM. The Federal Communications Bar Association's (FCBA) Young Lawyers Committee will host a brown bag lunch titled "Current Issues in Broadband Deployment". The speakers will include Kyle Dixon, Deputy Media Bureau Chief and Special Counsel to the Chairman on Broadband Policy. Location: Wilkinson Barker & Knauer, 2300 N Street, NW, Suite 700.

12:30 - 4:30 PM. The Executive Office of the President's (EOP) Office of Science and Technology Policy's (OSTP) National Science and Technology Council's (NSTC) Critical Infrastructure Subcommittee will hold a meeting. This meeting is closed to the public. For more information, contact John Hoyt. Location: White House Conference Center, Eisenhower Room, 726 Jackson Place, NW.

2:00 PM. The Senate Judiciary Committee will hold a hearing on the nominations of James Comey to be Deputy Attorney General. See, notice. Press contact: Margarita Tapia (Hatch) at 202 224-5225 or David Carle (Leahy) at 202 224-4242. Location: Room 226, Dirksen Building.

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

8:30 AM. The Republican Technology Council (no web site) will host a panel discussion titled "SPAM: A Public Policy Response". The speakers will include Sen. Conrad Burns (R-MT) and Rep. Heather Wilson (R-NM). To registration, contact David Miller at 202 467-0045 or Miller@fedgovlink.com. Location: Capitol Hill Club, 300 First St., SE.

POSTPONED. 8:30 AM - 3:30 PM. The U.S. Chamber of Commerce will host a conference titled "21st Century Criminal Networks: Intellectual Property Theft and Counterfeiting". See, notice. Location: U.S. Chamber of Commerce, 1615 H. Street, NW.

9:00 AM - 12:00 NOON. The American Enterprise Institute (AEI) will host a pair of panel discussions titled "Class Action Reform: The Why and the Who". The speakers will be Richard Epstein (University of Chicago), David Rosenberg (Harvard), Judge Lee Rosenthal, Todd Zywicki (FTC), John Beisner (O'Melveny & Myers), Mark Perry (Gibson Dunn & Crutcher). See, AEI notice. Press contact: Veronique Rodman at 202 862-4871 or vrodman@aei.org. Location: AEI, Twelfth floor, 1150 17th St., NW.

9:15 AM - 5:15 PM. Day two of a two day event hosted by the Federal Communications Commission (FCC) titled "E911 Coordination Initiative". The event will address legal, regulatory, technical, and financial issues that arise in the implementation of wireless enhanced 911 services. See, letter [PDF] from Chairman Powell, and FCC release [PDF]. The event will be webcast. Location: FCC, Commission Meeting Room, 445 12th St., SW.

10:00 AM. The Senate Commerce Committee will hold a hearing on the "preservation and advancement of universal service, including the impact of competition and the emergence of new technologies and services". Sen. John McCain (R-AZ) will preside. Michael Powell, Chairman of the Federal Communications Commission, will testify. The hearing will be webcast. See, notice. Press contact: Rebecca Hanks (McCain) at 202 224-2670 or Andy Davis (Hollings) at 202 224-6654. Location: Room 253, Russell Building.

10:00 AM. The Senate Judiciary Committee will hold an executive business meeting. See, notice. Press contact: Margarita Tapia (Hatch) at 202 224-5225 or David Carle (Leahy) at 202 224-4242. Location: Room 226, Dirksen Building.

10:00 AM. The House Commerce Committee's Subcommittee on on Commerce, Trade, and Consumer Protection will hold a hearing titled "E-Commerce: The Case of Online Wine Sales and Direct Shipment". See, notice. Press contact: Ken Johnson or Jon Tripp at 202 225-5735. Location: Room 2123, Rayburn Building.

12:00 NOON - 2:00 PM. The House Science Committee's Subcommittee on Research will hold a hearing titled "Implementation of the Math Science Partnership Program: Views from the Field". Committee contacts: Kara Haas (Republican) and Jim Wilson (Democrat). Location: Room 2325, Rayburn Building.

1:30 - 3:30 PM. The American Enterprise Institute (AEI) will host a panel discussion titled "The Patriot Act and Civil Liberties: Too Far or Not Far Enough?" The speakers will be Bob Barr (American Conservative Union), Alice Fisher (Latham & Watkins), and John Yoo (AEI). See, notice. Press contact: Veronique Rodman at 202 862-4871 or vrodman@aei.org. Location: Twelfth floor, 1150 17th St., NW.

2:00 PM. 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.

? 3:00 PM. The House Select Homeland Security Committee's Subcommittee for Cybersecurity, Science, and Research and Development will hold a hearing. Assistant Secretary of Homeland Security (Plans, Programs and Budgets) Parney Albright will testify. Location: Room 210, Cannon Building.

Day one of a three day convention of the American Intellectual Property Law Association (AIPLA). Location: Grand Hyatt Washington.

The Cato Institute will host a conference titled "Telecom and Broadband Policy: After the Market Meltdown".

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

9:00 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.

Deadline for the telemarketers to submit their 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.

The U.S. Patent and Trademark Office's (USPTO) new rules implementing the Madrid Protocol Implementation Act take effect. On September 26, 2003, the USPTO published a notice in the Federal Register announcing and summarizing new regulations implementing the Act of 2002, and amendments to existing regulations both to implement the Act and to otherwise clarify and improve the procedures for processing trademark applications and conducting proceedings before the Trademark Trial and Appeal Board. See, Federal Register: September 26, 2003, Vol. 68, No. 187, at Pages 55747 - 55781.

Deadline to submit comments to the Federal Communications Commission (FCC) regarding its Fourth Notice of Proposed Rulemaking [49 pages in PDF] in which it proposes to make spectrum available to federal users that will be displaced from the 1710-1850 MHz band to make it available for advanced wireless services. See, notice in the Federal Register September 2, 2003, Vol. 68, No. 169, at Pages 52156 - 52168. See, also stories titled "FCC Releases NPRM Regarding Allocating Spectrum to DOD to Replace Spectrum Allocated for 3G Services" in TLJ Daily E-Mail Alert No. 694, July 9, 2003, and "FCC Sets Deadlines for Comments Regarding Spectrum Reallocations Relating to 3G Services" in TLJ Daily E-Mail Alert No. 731, September 3, 2003. This is ET Docket No. 00-258 and WT Docket No. 02-8.

Deadline to submit reply comments to the Federal Communications Commission (FCC) regarding the portion of the FCC's triennial review order [576 pages in PDF] that contains a notice of proposed rulemaking [NPRM] regarding modifications to the FCC's rules implementing 47 U.S.C. § 252(i), which requires local exchange carriers (LECs) to make available to other telecommunications carriers interconnection agreements approved under Section 252. See, notice in the Federal Register, September 2, 2003, Vol. 68, No. 169, at Pages 52307 - 52312, and September 2 FCC release [3 pages in PDF]. The Federal Register notice states that the reply comment deadline is October 23. However, the FCC release states that this was in error.

10/27. Jack Zinman will leave the National Telecommunications and Information Administration (NTIA) in November. He is currently Senior Advisor to Acting Assistant Commerce Secretary Michael Gallagher. See, NTIA release.

10/27. President Bush announced his intent to nominate Arnold Havens to be General Counsel for the Department of the Treasury. He currently is SVP for Government Affairs at CSX Corporation. Secretary of the Treasury John Snow was previously CEO of CSX. During the first Bush administration Havens was Special Assistant to the President for Legislative Affairs. See, White House release.