Tech Law Journal Daily E-Mail Alert
November 4, 2003, 9:00 AM ET, Alert No. 771.
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Bush Nominates Fran Harvey for DOD/NII

11/3. President Bush announced his intent to nominate Francis Joseph (Fran) Harvey to be Assistant Secretary of Defense for Networks and Information Integration (NII). NII handles most of the information and communications technology related projects of the Department of Defense (DOD). NII responsibilities include information management, command and control, communications, network centric warfare, security, information assurance, information operations, spectrum, space systems, space policy, surveillance and reconnaissance, intelligence, and counterintelligence.

Harvey is currently Vice Chairman of Duratek, Inc., a company located in Columbia, Maryland that manages radioactive waste for nuclear power plants, the Department of Energy, the Department of Defense, and other entities. Before that, he worked for Westinghouse from 1969 to 1997, including as Chief Operating Officer of its Industries and Technology Group.

Duratek is a portfolio company of the Carlyle Group, a private equity investment firm. Harvey is also a director of other Carlyle companies, including IT Group, Inc., Gardner Technologies, Inc. (wine bottle cork technology), and Kulman Electric Corp. Carlyle is chaired by former IBM Chairman Lou Gerstner. Former Federal Communications Commission (FCC) Chairman William Kennard is a Managing Director in Carlyle's Global Telecommunications and Media Group.

Harvey has a doctorate in metallurgy and material sciences.

FCC Fines AT&T For Violation of FCC Do Not Call Rules

11/3. The Federal Communications Commission (FCC) released a Notice of Apparent Liability for Forefeiture [12 pages in PDF] pertaining to consumer allegations that AT&T violated the FCC's do not call rules. This NAL effectively fines AT&T $780,000 for making telephone solicitation calls to 29 consumers on 78 separate occasions after those consumers had requested that AT&T not call them again, in violation of 47 C.F.R. 64.1200(e). See also, FCC release.

FCC Chairman Michael Powell stated in a release that "Today's enforcement action demonstrates our resolve in the fight to protect consumers from unwanted and intrusive telephone calls. This puts telemarketers on notice that we will take all measures necessary to protect consumers who chose to be left alone in their homes. Together with our partners at the Federal Trade Commission, we will remain vigilant to ensure that telemarketers respect the wishes of consumers."

An unrepentant AT&T stated in a release that this investigation "concerns claims by customers who believed they were on an AT&T-specific list and received a call they think was from AT&T". It added that "We are confident we can persuade the FCC in its fact-finding proceeding that there were not 78 do-not-call violations."

Sen. Grassley Meets with Lamy Re FSC/ETI

11/3. Sen. Charles Grassley (R-IA), Chairman of the Senate Finance Committee, and Pascal Lamy, the Trade Commissioner of the European Union met to discuss trade issues, including replacement legislation for the Foreign Sales Corporation (FSC) and Extraterritorial Income (ETI) tax regimes, which the World Trade Organization (WTO) held to be illegal export subsidies.

The WTO ruling permits the EU to impose retaliatory tariffs. The EU has released a various lists of items that may be subject to retaliatory tariffs.

Sen. Charles GrassleySen. Grassley (at right) stated afterwards that "I think Commissioner Lamy understands how committed I am to bringing the United States into compliance on FSC/ETI. I hope the Senate will vote soon on my bipartisan bill to repeal ETI. Depending on what happens in the House, we may be able to go to conference before the end of the year. In any event, I'm optimistic that we can deliver a bill to the President early next year."

"I impressed on Commissioner Lamy that sanctions will not in any way impact how quickly we move this legislation through the Congress. I also stressed how disappointed I am by the rhetoric coming out of Brussels threatening sanctions. Why would you want to increase trade tensions when we're actively moving to resolve the dispute? It just doesn't make sense."

On October 27, the House Ways and Means Committee approved FSC/ETI replacement legislation, HR 2896, the "American Jobs Creation Act of 2003" by a vote of 24-15.

On September 18, 2003, Sen. Grassley introduced S 1637, the "Jumpstart Our Business Strength (JOBS) Act". The Senate Finance Committee amended and approved this bill on October 2, 2003.

See also, S 1475, the "Promote Growth and Jobs in the USA Act of 2003". This bill was introduced on July 28, 2003 by Sen. Orrin Hatch (R-UT), a member of the Senate Finance Committee. However, it has not been approved by the Committee.

The House bill has broader support from software, computer, information technology, and communications companies. Its supporters include AOL Time Warner, Apple, Cisco, Dell, eBay, EDS, HP, IBM, Iomega, Oracle, Sun Microsystems, Telcordia, TI, BellSouth, AT&T, SBC, and Verizon.

See also, stories titled "Grassley and Baucus Organize Meeting on FSC/ETI Issue" in TLJ Daily E-Mail Alert No. 511, September 18, 2002; "Deputy Treasury Secretary Addresses FSC/ETI and WTO Rulings" in TLJ Daily E-Mail Alert No. 526, October 9, 2002; "Rep. Thomas Writes Colleagues Re FSC Dispute" in TLJ Daily E-Mail Alert No. 622, March 13, 2003; "WTO Authorizes FSC/ETI Related Tariffs" in TLJ Daily E-Mail Alert No. 657, May 8, 2003; "Legislators Introduce Bills to Repeal ETI Regime and Extend R&D Tax Credit" in TLJ Daily E-Mail Alert No. 715, August 11, 2003; and "Senate Finance Committee Approves FSC/ETI Replacement Bill" in TLJ Daily E-Mail Alert No. 753, October 6, 2003.

More Trade News

11/3. The Department of Commerce (DOC) announced that the DOC awarded a $399,853 grant to the Advanced Television Systems Committee (ATSC) Forum to fund its Hemispheric Digital Television (DTV) Initiative. The DOC stated that the grant will generate export revenues. See, DOC release.

11/3. Secretary of the Treasury John Snow gave a speech to the U.S.-Japan Business Council annual meeting in Washington DC. He stated that, previously, "many in the United States viewed growth in Japan as a threat to the U.S., as if world output were a zero-sum game. We now recognize that growth abroad adds to opportunities for American workers and producers, and enhances prosperity in the United States. We welcome the contribution that Japanese firms have made to U.S. employment by investing here." He added that "the nature of the issues has shifted away from market access, and towards market development, regulation, and corporate governance. These are issues that affect domestic firms as well as foreign firms in Japan. And these issues are often detailed and technical. Current financial services issues, such as the development of defined contribution pensions and regulatory transparency, are industry issues, not foreign firm issues."

Supreme Court News

11/3. The Supreme Court denied certiorari, without opinion, in Biltmore Forest v. FCC, No. 03-48. See, Order List [15 pages in PDF] at page 2.

11/3. The Supreme Court denied certiorari, without opinion, in Consumers Union v. Suzuki. See, Order List [15 pages in PDF] at page 3. A split three judge panel of the U.S. Court of Appeals (9thCir) issued an opinion [31 pages in PDF] on June 25, 2002 reversing a District Court dismissal of a suit alleging product disparagement by Consumer Reports; the District Court had dismissed the case pursuant to New York Times v. Sullivan. A split en banc panel (13-11) denied rehearing on May 19, 2003. This is Supreme Court No. 03-281, Appeals Court No. 00-56043, and District Court No. CV 96-00340 AHS.

11/3. The Supreme Court announced that it will take a recess from Monday, November 17, 2003, until Monday, December 1, 2003. See, Order List [15 pages in PDF] at page 15.

Recently Released Reports

10/31. The Progressive Policy Institute (PPI), a Democratic party think tank, released a report [25 pages in PDF] titled "Confronting Digital Piracy: Intellectual Property Protection in the Internet Era", by Shane Ham and Robert Atkinson. The report concludes that "there are no right or wrong answers, only the balancing of trade-offs. Policymakers must take steps to ensure that the individuals and companies that create and distribute content have their property protected from theft. At the same time, public policy must encourage the other myriad benefits both content and devices, disintermediation of middlemen that serve only to increase costs, and so on. By balancing these competing interests and creating an environment where content providers can take full advantage of digital technology, the digital era holds the promise of new vistas of creativity." See also, PPI summary.

11/3. James Harper, the Editor of, released a report titled "Affiliate-Sharing and Consumers: How ``Privacy´´ Regulation Misses the Mark, Hits Marketing". The report states that "The relationship between affiliate-sharing and consumer privacy has long been assumed and advocated for, but never deeply studied. Affiliate-sharing regulation may advance privacy for some set of consumers, but others -- possibly a large majority -- may get little benefit from it." It adds that "Experience in the marketplace and with prior regulation suggests that affiliate-sharing is not a significant privacy concern for consumers." It concludes that "It is unwise to pass blanket privacy laws for the benefit of a few privacy outliers, but this may well be what has happened in California and what is threatened for the whole nation in current congressional debates."

11/3. The General Accounting Office (GAO) released a report [PDF] titled "Information Technology: Benefits Realized for Selected Health Care Functions".

People and Appointments

11/3. President Bush nominated Gene Pratter to be a Judge of the U.S. District Court for the Eastern District of Pennsylvania. See, White House release.

More News

10/29. The Federal Trade Commission (FTC) filed a complaint [PDF] in U.S. District Court (SDNY) Epixtar Corporation, Liberty Online Services, Inc., National Online Services, Inc., B2B Advantage, Inc., aka SBA Online, and William Douglas Rhodes, alleging violation of the Federal Trade Commission Act (FTCA) in connection with billing for internet services represented as free. The FTC filed its complaint on October 28. On October 29, the District Court issued a temporary restraining order [PDF]. See also, FTC release. This case is FTC v. Epixtar Corporation, et al., D.C. No. 03 CV 8511 (DAB).

10/31. The Internet Corporation for Assigned Names and Numbers (ICANN) announced that "it will launch a broad strategic initiative to enable new generic top level domains (gTLDs). The strategic initiative will include a two-stage approach to move to the full globalization of the market for top-level domains." See, ICANN release.

Washington Tech Calendar
New items are highlighted in red.
Tuesday, November 4

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 many items under suspension of the rules, including HR 2898, the "E-911 Implementation Act of 2003". See, Republican Whip Notice.

9:00 AM - 12:00 NOON. The Center for Strategic and International Studies (CSIS) will host a conference titled "Biometrics and Security". Location: CSIS, 1800 K Street, NW, B-1 Conference Level.

9:30 AM. The Federal Communications Commission (FCC) host an event titled "Rural Wireless Internet Service Provider (WISP) Showcase and Workshop". For more information, contact Robert Pepper (Chief, Policy Development) at or 202 418-2030. See, agenda [PDF]. Location: FCC, Commission Meeting Room, 445 12th Street, SW. This event was previously scheduled for September 18, but was postponed because of the weather.

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in U.S. v. Microsoft and State of New York v. Microsoft, Nos. 03-5030 and 02-7155. This will be an en banc argument. Location: Courtroom 20, 333 Constitution Ave. NW.

9:30 AM. The Senate Commerce Committee will hold a hearing on several pending nominations, including that of Michael Gallagher to be head of the National Telecommunications and Information Administration (NTIA). The hearing will be webcast. Location: Room 253, Russell Building.

10:00 AM. The Senate Judiciary Committee's Subcommittee on Terrorism, Technology and Homeland Security will hold a hearing titled "Database Security: Finding Out When Your Information Has Been Compromised". See, notice. The witnesses will be David McIntyre (P/CEO of TriWest Healthcare Alliance), Mark MacCarthy (SVP, Visa USA), and Evan Hendricks (Editor of Privacy Times). Press contact: Margarita Tapia (Hatch) at 202 224-5225 or David Carle (Leahy) at 202 224-4242. Location: Room 226, Dirksen Building.

POSTPONED. 3:00 PM. The House Ways and Means Committee will hold a hearing titled "IRS Efforts to Modernize its Computer Systems". See, notice. Location: Room 1100, Longworth Building. See, notice of postponement.

Wednesday, November 5

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

9:00 AM. Federal Communications Commission (FCC) Commissioner Kathleen Abernathy will host an event titled "general press briefing". For more information, contact Matt Brill at 202-418-2400. Location: FCC, 445 12th Street, SW, Room 8B-115.

9:00 AM - 5:00 PM. The North American Numbering Council (NANC) will meet. Location: Federal Communications Commission (FCC), 445 12th Street, SW, Room TW-C305.

10:00 AM. The Senate Commerce Committee will hold a hearing on aviation security. The witnesses will include Stephen McHale (Deputy Administrator, Transportation Security Administration), Penrose Albright (Assistant Secretary Plans Programs, Budgets, Science and Technology Directorate, Department of Homeland Security), William Parrish (Acting Assistant Secretary Information Analysis, Information Analysis and Infrastructure Protection), and Cathleen Berrick (General Accounting Office). The hearing will be webcast. See, notice. SJC Press contact: Rebecca Hanks (McCain) at 202 224-2670 or Andy Davis (Hollings) at 202 224-6654. The DHS states that there will also be a hearing from 9:30 - 10:00 AM that is closed to the public, and that in addition, James Loy (TSA Administrator) will participate. Location: Room 253, Russell Building.

12:30 PM. The Federal Communications Bar Association (FCBA) will host a lunch. The speaker will be Federal Communications Commission (FCC) Chairman Jonathan Adelstein. RSVP by Friday, October 31. See, registration form. Location: J.W. Marriott Hotel, 1331 Pennsylvania Ave., NW.

6:00 - 8:15 PM. The Intellectual Property and other sections of the D.C. Bar Association will host a CLE course titled "Secrets of the Uniform Trade Secrets Act". Prices vary. For more information, call 202 626-3488. Location: D.C. Bar Conference Center, 1250 H Street NW, B-1 level.

The Trade Policy Staff Committee (TPSC) will hold a 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.

TIME? The U.S. Court of Appeals (3rdCir) is scheduled to hear oral argument in Prometheus Radio Project v. FCC, and numerous other consolidated petitions for review of the Federal Communications Commission's (FCC) media ownership order. See, scheduling order [PDF]. Location: Philadelphia, PA.

Thursday, November 6

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

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in BDPCS v. FCC, No. 02-1369. Judges Randolph, Roberts and Williams will preside. Location: 333 Constitution Ave. NW.

9:30 AM. The House Commerce Committee's Subcommittee on Telecommunications and the Internet will hold a hearing titled "Computer Viruses: The Disease, the Detection and the Prescription for Protection". The hearing will be webcast. Press contact: Ken Johnson or Jon Tripp at 202 225-5735. Location: Room 2123, Rayburn Building.

9:30 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.

9:30 - 10:30 AM. Federal Communications Commission (FCC) Commissioner Michael Copps will host an event titled "Press Breakfast". RSVP to Betty Morris at Location: FCC, 445 12th Street, SW, Suite 8-A302.

10:00 - 11:30 AM. The Federal Communications Commission's (FCC) Media Security and Reliability Council (MRSC) will hold a meeting. See, notice in the Federal Register, May 29, 2003, Vol. 68, No. 103, at pages 32038 - 32039. Location: FCC, Commission Meeting Room (TW-C305), 445 12th St., SW.

3:00 - 5:30 PM. The Department of Justice's (DOJ) Antitrust Division (ATR) will host a ceremony and reception commemorating the 100th anniversary of the appointment of the first Assistant Attorney General (AAG) with antitrust responsibilities. AAG Hewitt Pate will speak. In addition, the ATR will give an award to Judge Richard Posner of the U.S. Court of Appeals (7thCir). The DOJ has stated both that the event is open to current and former ATR employees only, and that "Media interested in attending the event should contact, in advance, Luke Macaulay, Office of Public Affairs, 202-514-2007." See, ATR notice, OPA notice, and ATR notice of Posner award. Location: Great Hall, DOJ Main.

4:00 PM. Barton Beebe (Cardozo Law School) will present a draft paper titled "Search and Persuasion in Trademark Law". 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.

6:00 - 8:15 PM. The D.C. Bar Association will host a CLE course titled "How to Litigate an Intellectual Property Case Series: Part 1 How to Litigate a Copyright Case". Prices vary. For more information, call 202 626-3488. Location: D.C. Bar Conference Center, 1250 H Street NW, B-1 level.

Friday, November 7

12:15 - 1:30 PM. The Federal Communications Bar Association's (FCBA) Wireless Committee will host a luncheon panel discussion titled "Debate on Licensed vs. Unlicensed Models for Spectrum Management". The speakers will be Thomas Hazlett (Manhattan Institute), and Michael Calabrese (New America Foundation). The price to attend is $15. For more information, contact RSVP to Location: Sidley Austin, 1501 K Street, NW, 6th Floor.

Monday, November 10

The Intellectual Property Owners Association (IPO) will host a one-day conference on corporate IP management. Location: Washington DC.

Oral argument before 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. Location: Tulsa, Oklahoma.

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