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November 10, 2003, 9:00 AM ET, Alert No. 775.
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FCC Announces Agenda of November 13 Meeting

11/6. The Federal Communications Commission (FCC) announced the agenda for its Thursday, November 13, 2003 meeting. The agenda includes a report and order allocating an additional 255 MHz of spectrum for unlicensed devices, such as Wi-Fi and Bluetooth.

First, the FCC will consider a Report and Order (R&O) that expands the entities eligible for universal service subsidies for rural health clinics. This is WC Docket No. 02-60. See, story titled "FCC To Consider Item Expanding Eligibility for Support for Rural Clinics", below.

Second, the Office of Engineering and Technology (OET) and the International Bureau will report on implementation of the results of the 2003 World Radiocommunication Conference.

Third, the FCC will consider a Notice of Proposed Rulemaking (NPRM) regarding earth stations on board vessels that are used to provide broadband telecommunications services on passenger, government, cargo, and recreational vessels. This is IB Docket No. 02-10.

Fourth, the FCC will consider a R&O to provide an additional 255 MHz of spectrum for unlicensed wireless devices operating in the 5 GHz region. This is ET Docket No. 03-122.

On May 15, 2003, the FCC announced its NPRM that proposes to nearly double the amount of spectrum for unlicensed use. The main use of this spectrum will likely be 802.11 (Wi-Fi) and Bluetooth devices. The additional spectrum will be in the 5.470-5.725 GHz band. It would be available for use by unlicensed National Information Infrastructure (U-NII) devices, including Radio Local Area Networks (RLANs), operating under Part 15 of the FCC's rules. See, story titled "FCC Adopts NPRM to Increase Unlicensed Spectrum" in TLJ Daily E-Mail Alert No. 663, May 16, 2003.

On June 4, 2003, the FCC released the text of this Notice of Proposed Rulemaking [28 pages in PDF]. See, story titled "FCC Releases NPRM Regarding Increasing Amount of Unlicensed Spectrum" in TLJ Daily E-Mail Alert No. 674, June 5, 2003. The FCC published a notice in the Federal Register (July 25, 2003, Vol. 68, No. 143, at Pages 44011 - 44020) describing this NPRM and setting comment deadlines.

Representatives and Senators have also introduced legislation that would require the FCC to allocate more spectrum for unlicensed uses. See, stories titled "FCC Unlicensed Spectrum NPRM and the Jumpstart Broadband Act" in TLJ Daily E-Mail Alert No. 663, May 16, 2003; and "Sen. Boxer and Sen. Allen Introduce WiFi Spectrum Bill", in TLJ Daily E-Mail Alert No. 586, January 20, 2003.

Also, the WRC-03 conference in Geneva, Switzerland from June 9 through July 4, 2003 adopted a resolution pertaining to spectrum for unlicensed devices. It provides "that this Conference has allocated the bands 5 150-5 350 MHz and 5 470-5 725 MHz on a primary basis to the mobile service for the implementation of wireless access systems (WAS), including radio local area networks (RLANs)". See also, story titled "Delegates Discuss World Radiocommunications Conference" in TLJ Daily E-Mail Alert No. 703, July 22, 2003.

Currently, there is a total of 300 megahertz of spectrum allocated for U-NII devices, in the 5.150-5.250 GHz, 5.250-5.350 GHz and 5.725-5.825 GHz bands.

Fifth, the FCC will consider a Notice of Inquiry (NOI) and NPRM regarding the "development and use of the interference temperature metric and for managing the transition from the current transmitter-based approach for interference management to the new interference temperature paradigm".

Sixth, the FCC's Spectrum Policy Task Force (SPTF) will report on "accomplishments and status of the implementation of recommendations in the Task Force Report one year after its release and will highlight ongoing and future spectrum policy reform initiatives".

Chairman Michael Powell formed a SPTF in June of 2002. It solicited comments and held hearings, outside of the context of a rule making proceeding. See, story titled "Powell Creates Task Force to Conduct Spectrum Inquiry" in TLJ Daily E-Mail Alert No. 446, June 7, 2002.

The FCC announced this report on November 7, 2002. See, story titled "FCC Announces Report on Spectrum Policy" in TLJ Daily E-Mail Alert No. 545, November 8, 2002.

The SPTF released its Report [73 pages in PDF] on November 15, 2002. One of the many topics addressed by the report is moving towards markets. The report recommends that "spectrum policy must evolve towards more flexible and market oriented regulatory models."

Seventh, the FCC will consider a R&O and Second Further NPRM regarding the scope of its enhanced 911 rules. This is CC Docket No. 94-102 and IB Docket No. 99-67.

FCC To Consider Item Expanding Eligibility for Support for Rural Clinics

11/7. Federal Communications Commission (FCC) Chairman Michael Powell gave a speech [3 pages in PDF] at the University of Virginia's Office of Telemedicine in which he stated that the FCC will consider an item at its November 13 meeting that will expand eligibility for universal service support for rural health care facilities. See also, FCC release [PDF].

He stated that "The rural healthcare program has a $400 million annual cap, but demand in Funding Years 2000 and 2001 averaged approximately $14 million a year. Thus, in 2002, the Commission initiated a proceeding to review the rural healthcare universal service support mechanism and determine in what ways we could improve the effectiveness of the program."

Statutory authority for this program is codified at 47 U.S.C. § 254(h)(1)(A). The FCC adopted its Notice of Proposed Rulemaking (NPRM) [35 pages in PDF] in its proceeding titled "In the Matter of Notice of Proposed Rulemaking (NPRM) Regarding the Universal Service Support Mechanism for Rural Healthcare" on April 18, 2002. It released this NPRM on April 19, 2002. This is WC Docket No. 02-60.

Michael PowellChairman Powell (at right) discussed this proceeding with Rep. Rick Boucher (D-VA) at a hearing of the House Commerce Committee's Telecom and Internet Subcommittee hearing on February 26, 2003. See also, comment [8 pages in PDF] submitted by Rep. Boucher on July 31, 2002, and story titled "Hearing On Triennial Review Order Serves As Forum For Other Issues", February 26, 2003.

Powell stated in his November 7 speech that the FCC "will consider an item at its open meeting next week that will encourage the development of public/private partnerships and other creative solutions to meet the needs of rural communities and increase participation in the rural healthcare program." This item is the first on the agenda or the November 13 meeting, which will begin at 9:30 AM in the FCC's Commission Meeting Room.

Powell continued that "One of the key changes in the upcoming order is the expansion of the rural health program to include discounts on Internet access for rural health care providers. I believe such action will better enable rural health care providers to offer the types of services that we will be seeing in today's demonstration."

Powell also stated that "the order will clarify that dedicated emergency departments in for-profit rural hospitals are ``public´´ health care providers eligible for support. We conclude that emergency departments are public in nature, because they are required by other federal laws to examine and stabilize all patients who walk in the door."

Senate Fails to Pass Bill Extending Expired Net Tax Moratorium

11/7. The temporary moratorium on internet access taxes, and new and discriminatory internet taxes, expired on November 1. The House has passed legislation to permanently extend the ban. The Senate considered, but failed to pass, extending legislation during the week ending on November 7.

The House passed HR 49, the "Internet Tax Nondiscrimination Act", by voice vote on September 17, 2003. This bill would permanently extend the moratorium on internet access taxes and multiple and discriminatory internet taxes that was created by the 1998 Internet Tax Freedom Act (ITFA). It would also eliminate the grandfather provision that allows states that had taxes in 1998 to continue those taxes.

It also contains language that provides that the moratorium applies to telecommunications services, "to the extent such services are used to provide Internet access", thus clarifying that the ban on internet access taxes extends to broadband DSL and wireless services provided by phone companies or others.

The original moratorium lasted for three years. In 2001, the Congress extended the moratorium. The extended moratorium expired on November 1, 2003.

The Senate Commerce Committee passed a Senate version of the bill, S 150, also titled the "Internet Tax Non-discrimination Act", on July 31, 2003. See, story titled "Senate Commerce Committee Approves Bill to Extend Internet Tax Moratorium" in TLJ Daily E-Mail Alert No. 709, Friday, August 1. In addition, the Senate Finance Committee discharged the bill.

Sen. John McCain (R-AZ) offered a substitute amendment that would permanently extend the ban on internet access taxes and multiple and discriminatory taxes. It also contains technology neutrality language. However, this amendment would maintain the grandfather clause for three years.

Sen. McCain stated that "this bill would ensure that consumers would never have to pay a toll when they access the Information Highway. Whether consumers log onto the Internet via cable modem, DSL, dial-up, or another technology that has yet to be invented, under S. 150 they will not see any State and local taxes on their monthly Internet bill. Now would their monthly Internet bills increase because of State and local taxes on Internet access that are passed down to consumers. Plainly and simply, this is a pro-consumer, pro-innovation, and pro-technology bill."

The Bush administration supports legislation extending the ban. On November 5, Secretary of the Treasury John Snow and Secretary of Commerce Donald Evans issued a joint release in which they stated that "government should support the widespread availability and use of the Internet, including the use of broadband technology, and not discourage the Internet’s growth through new access taxes. Keeping the Internet free of multiple or discriminatory taxes will help create an environment for innovation and will help ensure that electronic commerce remains a vital, and growing, part of our economy. A permanent moratorium means a permanent victory for American consumers and businesses."

They added that "We urge the Senate to pass S. 150 as soon as possible so President Bush can sign a permanent Internet tax moratorium."

See also, Software & Information Industry Association (SIIA) release, Cellular Telecommunications & Internet Association (CTIA) release, and Information Technology Association of America (ITAA) release in support of S 150.

House Subcommittee Holds Hearing on Computer Viruses

11/6. The House Commerce Committee's Subcommittee on Telecommunications and the Internet held a hearing titled "Computer Viruses: The Disease, the Detection and the Prescription for Protection".

See, prepared testimony of Richard Pethia (CERT Coordination Center), Ken Silva (VeriSign), Bill Hancock (Internet Security Alliance), John Thompson (Symantec Corporation), and Robert Holleyman (Business Software Alliance).

The BSA's Holleyman advocated "enhancing law enforcement's capabilities to treat destructive virus attacks as serious crimes". He added that "we need to ensure that law enforcement has the resources it needs -- personnel, training, and equipment". He also said that "we need to ensure greater cross-jurisdictional cooperation in investigating cyber attacks".

VeriSign's Silva wrote that "we must provide government at the national and international levels with both forensic tools and investigative training and powers to reach those who are attacking our networks".

Hancock opined that "Government is a critical partner, but, ultimately, the industry must shoulder a substantial responsibility and demonstrate leadership in this field if we are to eventually succeed".

Rep. Billy Tauzin (R-LA), the Chairman of the full Committee, wrote in a prepared statement that cyber attacks "can shut down facilities like airports, bridges, electrical grids, nuclear plants, and air traffic control -- posing enormous public safety risks. It is only a matter of time before Internet worms and viruses are used to attack infrastructure that will result in more than just financial losses. For this reason, cyber security must be at the forefront of the minds of those in business and government."

He wrote that "Businesses need to ramp up their cyber security, consumers need to be vigilant, and Congress must continue to ensure our computer and technology networks are safe."

Microsoft Addresses Spam Legislation

11/5. Microsoft released a statement regarding spam legislation in the Congress. It wrote that the bill recently passed by the Senate "would add clout to the dozens of lawsuits filed by Microsoft and other Internet service providers to curb abuses by some of the biggest spammers."

On October 22, 2003 the Senate amended and passed S 877, the "Controlling the Assault of Non-Solicited Pormography and Marketing Act of 2003'", also known as the "CAN-SPAM Act of 2003", by a vote of 97-0. See, Roll Call No. 404. See also, story titled "Senate Passes Burns Wyden Spam Bill" in TLJ Daily E-Mail Alert No. 765, October 24, 2003.

However, while there are spam bills pending in the House, none have been passed. See, stories titled "Spam Bills Pending in the House and Senate", "House Judiciary Committee Holds Hearing on Spam Bill", and "House Commerce Committee Holds Hearing on Spam" in TLJ Daily E-Mail Alert No. 696, Friday, July 11.

Microsoft wrote that "Last month marked an important milestone as the United States Senate voted 97-0 to outlaw the shadiest tactics used by many spammers. Like similar legislation in the House of Representatives, the Senate bill targets spammers’ favorite ploys for defeating filters and other countermeasures. It bans misleading subject lines, requires that advertising messages be clearly identified, and mandates warning labels on sexually oriented spam. It prohibits mass mailings to e-mail addresses generated by automated programs, which harvest addresses from the Web, or recombine letters and numbers into huge lists of possible user names."

Microsoft added that "The legislation also attacks spammers’ efforts to avoid detection. It prohibits senders of unsolicited commercial e-mail from falsifying return addresses or routing information. Messages must include a valid physical address for the sender, and must comply with recipients’ requests not to receive further mail."

Sen. Leahy Discusses Criminal Spam Act

11/6. Sen. Patrick Leahy (D-VT) spoke in the Senate about S 1293, the "Criminal Spam Act". He said the bill is being held up by an anonymous Republican Senator.

The bill was introduced on June 19, 2003 by Sen. Orrin Hatch (R-UT), Sen. Leahy and others. The Senate Judiciary Committee amended and approved the bill on September 25, 2003. The committee report was released on October 22, 2003. See, Senate Report 108-170.

Also on October 22, 2003 the Senate amended and passed S 877, the "Controlling the Assault of Non-Solicited Pormography and Marketing Act of 2003'", also known as the "CAN-SPAM Act of 2003", by a vote of 97-0. See, Roll Call No. 404. See, story titled "Senate Passes Burns Wyden Spam Bill" in TLJ Daily E-Mail Alert No. 765, October 24, 2003. This bill was a product of the Senate Commerce Committee.

S 1293 only contains criminal provisions. The bill would amend Title 18 to criminalize (1) knowingly accessing a protected computer to send spam ("multiple commercial electronic mail messages"), (2) knowingly using a protected computer to relay or retransmit spam with intent to deceive either recipients or ISPs, (3) knowingly falsifying header information in spam, (4) knowingly registering multiple e-mail accounts or domain names to send spam and then intentionally sending spam from those accounts or domain names, and (5) knowingly falsely representing the right to use 5 or more IP addresses and then sending spam from such addresses.

See also, story titled "Senators Hatch & Leahy Introduce Spam Crime Bill" in TLJ Daily E-Mail Alert No. 686, June 24, 2003.

Sen. Leahy stated that "Two weeks ago, the Senate adopted portions of the bill as an amendment to S. 877, the CAN SPAM Act. The bill has been cleared from the Democratic cloakroom for weeks. Unfortunately, this important measure is hung up on the Republican side because of an anonymous ``hold´´ by some Republican Senator." See, Congressional Record, November 6, 2003, at S14172.

Sen. Leahy continued that "The Criminal Spam Act targets the most pernicious and unscrupulous spammers -- those who use trickery and deception to induce others to relay and view their messages. Ridding America's inboxes of deceptively delivered spam will significantly advance our fight against junk e-mail."

He asked "Why would anyone want to prevent passage of this important legislation? It is bipartisan. It is non-controversial. It enjoys broad support from businesses, consumer groups, and civil liberties groups alike. The administration has only good things to say about it, and I know of no individual or organization that opposes it."

He concluded that "The answer must be that someone on the other side of the aisle is playing politics with this bill, holding it up for some reason that has nothing to do with it -- or for no reason at all."

Washington Tech Calendar
New items are highlighted in red.
Monday, November 10

The House will meet at 12:00 NOON for a pro forma session only. See, Republican Whip Notice.

The Senate will meet at 1:00 PM to begin consideration of HR 2799, the Commerce, Justice, State Appropriations Act, FY 2004.

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.

Tuesday, November 11

Veterans Day.

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

The FCC will be closed.

Wednesday, November 12

The House will meet at 2:00 PM for legislative business. It will consider numerous non tech related items under suspension of the rules. Votes will be postponed until 6:30 PM. See, Republican Whip Notice.

10:00 AM. The Senate Judiciary Committee will hold a hearing to examine judicial and executive nominations. 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 Cato Institute will host a book forum on Black Ice: The Invisible Threat of Cyberterrorism. Author Dan Verton will speak. See, Amazon page and Cato notice. Lunch will follow the program. Location: 1000 Massachusetts Ave., NW.

Deadline to submit comments to the U.S. Patent and Trademark Office (USPTO) regarding proposed changes to its rules of practice to support the implementation of the 21st Century Strategic Plan. The proposed changes include permitting electronic signatures on a number of submissions, streamlining the requirements for incorporation by reference of prior filed applications, and clarifying the qualifications for claiming small entity status for purposes of paying reduced patent fees. See, notice in the Federal Register, September 12, 2003, Vol. 68, No. 177, at Pages 53815 - 53859.

Deadline to submit comments to the Federal Communications Commission (FCC) in response to its Notice of Inquiry (NOI) regarding the impact that communications towers may have on migratory birds. See, notice in the Federal Register, September 12, 2003, Vol. 68, No. 177, at Pages 53696 - 53702. This is Docket No. WT 03-187, and FCC 03-205. The FCC adopted this NOI on August 8, 2003, and released it on August 20, 2003. See also, story titled "FCC Release NOI On Communications Towers and Migratory Birds" in TLJ Daily E-Mail Alert No. 723, August 21, 2003.

Thursday, November 13

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

9:00 AM - 12:00 NOON. The Telecommunications Service Priority (TSP) System Oversight Committee will meet. See, notice in the Federal Register, October 10, 2003, Vol. 68, No. 197, at Page 58725. Location: 2nd floor conference room, National Communications System (NCS), 701 South Courthouse Road, Arlington, VA.

9:00 AM - 3:45 PM. The National Institute of Standards and Technology's (NIST) Advanced Technology Program Advisory Committee hold a partially closed meeting. See, notice in the Federal Register, October 27, 2003, Vol. 68, No. 207, at Page 61189. Location: NIST, Administration Building, Employees' Lounge, Gaithersburg, MD.

9:30 AM. The Senate Commerce Committee will hold a hearing to examine the General Accounting Office's (GAO) study [94 pages in PDF] titled "Telecommunications: Issues Related to Competition and Subscriber Rates in the Cable Television Industry". See, story titled "GAO Releases Study on Cable Industry", in TLJ Daily E-Mail Alert No. 766, October 27, 2003. Press contact: Rebecca Hanks (McCain) at 202 224-2670 or Andy Davis (Hollings) at 202 224-6654. Location: Room 253, Russell Building.

9:30 AM. The Federal Communications Commission (FCC) will hold a meeting. Location: FCC, 445 12th Street, SW, Room TW-C05 (Commission Meeting Room).

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in Adams Comm Corp v. FCC, No. 02-1232. Judges Randolph, Roberts and Williams will preside. Location: Courtroom 20, 333 Constitution Ave. NW.

10:00 AM. The Internal Revenue Service (IRS) will hold a 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. Location: IRS Auditorium, 7th Floor, 1111 Constitution Ave., NW. See, notice in the Federal Register, July 29, 2003, Vol. 68, No. 145, at Pages 44499 - 44506.

2:00 - 3:00 PM. The Heritage Foundation will host an event titled "Beyond Do-Not-Call: The FTC Agenda". The speakers will be Timothy Muris, Chairman of the Federal Trade Commission (FTC), and James Gattuso of the Heritage Foundation. Refreshments will be provided. See, notice. Location: Heritage Foundation, Lehrman Auditorium, 214 Massachusetts Ave., NE.

6:00 - 9:15 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 Trademark 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 14

RESCHEDULED FOR NOVEMBER 20. 9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in CA Metro Mobile Comm v. FCC, No. 02-1370. Judges Sentelle, Henderson and Garland will preside. Location: 333 Constitution Ave. NW.

12:00 NOON - 2:00 PM. The Progress and Freedom Foundation (PFF) will host a panel discussion titled "Copyright Protection and the Broadcast Flag". The speakers will be William Adkinson (PFF), Robert Atkinson (Progressive Policy Institute), and James DeLong (PFF). There will be a buffet lunch. See, notice [PDF]. Location: Room 1539, Longworth Building.

12:30 PM. The Federal Communications Bar Association's (FCBA) Legislation Committee will host a brown bag lunch. The topic will be the "The Northpoint Issue: Will Congress Provide Spectrum Without an Auction? The View From the Hill". For more information, contact Lee Carosi at 202 224-0990 or Lee_Carosi Location: Wiley Rein & Fielding, 1750 K Street Building, 5th Floor Conference Room.

District Court Rules on Remand in ECPA Case Involving Web Site Monitoring

11/7. The U.S. District Court (DMass) issued its memorandum on remand [17 pages in PDF] in In re Pharmatrak Privacy Litigation. On May 9, 2003 the U.S. Court of Appeals (1stCir) issued its opinion reversing the District Court's summary judgment, and remanding. The Appeals Court held that web site monitoring can constitute a violation of the Electronic Communications Privacy Act (ECPA).

See, story titled "1st Circuit Holds Monitoring Web Site Traffic Can Violate Wiretap Act" in TLJ Daily E-Mail Alert No. 659, May 12, 2003 for a more detailed summary of the Appeals Court's opinion.

Pharmatrak sold a web site traffic monitoring service named NETcompare to pharmaceutical companies. NETcompare collected information about the web users in the course of their accessing the web sites of pharmaceutical companies that used the NETcompare service. Its parent company is Glocal Communications.

Pfizer, Pharmacia (which was recently acquired by Pfizer), Smithkline Beecham (which merged with Glaxco Wellcome to form GlaxSmithKline), American Home Products (now Wyeth), and Novartis were five pharmaceutical companies that purchased the NETcompare service, from June 1998 through November 2000, for the purpose of obtaining information that would enable them to do intra-industry comparisons of web site traffic and usage.

The pharmaceutical companies did not seek personal or identifying data. However, Pharmatrak nevertheless collected some personal information on a small number of users.

The plaintiffs are individuals who visited the web sites of these pharmaceutical companies.

The Wiretap Act, as amended by the Electronic Communications Privacy Act (ECPA), provides, at 18 U.S.C. § 2511(1), a private cause of action against anyone who "intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication."

The plaintiffs alleged in this class action lawsuit that third party monitoring of web site visits, through the use of cookies, analysis of access logs, and web forms, constituted a prohibited interception of electronic communications. Previously, the District Court held that the web site visitors consented to the interception, and dismissed the claim. The Appeals Court reversed and remanded. It held that Pharmatrak had intercepted communications within the meaning of the EXPA. However, it remanded to the District Court to determine whether the interception was intentional.

The District Court held, in the present memorandum on remand, that the interception was not intentional. It granted summary judgment to defendants.

First, the District Court noted that when the plaintiffs' "computer expert conducted a thorough search of Pharmatrak's computers, as a result of this court's order to do so, he was able to assemble personal profiles on approximately 232 individuals". This was out of "roughly 18.7 million unique Web users" who visited the tracked pharmaceutical company pages.

Second, the District Court noted that "Defendants have provided undisputed descriptions of how pieces of personal information were transmitted to their servers. According to the Defendants, programming errors made by three different third parties caused these transmissions. One hundred sixty-six transmissions were the result of the inappropriate use of the GET method by two of the Defendant pharmaceutical companies, while the remaining sixty-seven occurred because of a mistake in Netscape’s Navigator browser. Because the transmissions were the result of circumstances beyond their control, Defendants argue that they could not have intended to collect the information."

Finally, the District Court noted that the defendants did not know that they had collected any personal data during the years of operation of the NETcompare program.

So, the defendants prevail -- unless this summary judgment is reversed. However, the underlying holding of the Appeals Court -- that web site monitoring can constitute a violation of the ECPA -- stands.

This case is In Re Pharmatrak Privacy Litigation, D.C. No. 00-11672-JLT, MDL Docket No. 1400, Judge Joseph Tauro presiding.

9th Circuit Applies Four Part Fair Use Test in Elvis Video Case

11/6. The U.S. Court of Appeals (9thCir) issued its split opinion [22 pages in PDF] in Elvis Pressley v. Passport Video, a copyright infringement case involving application of the four prong fair use test of 17 U.S.C. § 107.

Defendant incorporated video clips, photographs, and music into a 16 hour video biography about Elvis Presley without permission from the copyright owners. The clips range in length from a few seconds to over one minute, and in some cases comprise a substantial part of copyrighted appearances on TV shows by Elvis Presley. The plaintiffs, who hold the copyrights, filed a complaint in U.S. District Court (CDCal) alleging copyright infringement. The District Court rejected the fair use defense, and issued an injunction.

The Appeals Court affirmed. Judge Richard Tallman wrote the opinion of the court. Judge Johnnie Rawlinson joined. Judge John Noonan wrote a dissent.

This case is Elvis Pressley Enterprises, et al. v. Passport Video, et al., U.S. Court of Appeals for the 9th Circuit, No. 02-57011, an appeal from the U.S. District Court for the Central District of California, Judge Ronald Lew presiding, D.C. No. CV-02-07042-RSL.

People and Appointments

11/6. Karen Buchholz was named VP of Administration at Comcast. She was previously VP of Corporate Communications. D'Arcy Rudnay was named VP of Corporate Communications. See, Comcast release.

More News

11/7. The Federal Communications Commission (FCC) released a Memorandum Opinion and Order (MOO) in its proceeding titled "In the Matter of Starpower Communications LLC v. Verizon South, Inc." in which it awarded $12 Million in damages to Starpower for violation of an interconnection agreement. The FCC adopted this MOO on November 5, and released it on November 7, 2003. This MOO is FCC 03-278. See also, FCC release.

11/5. Rep. Adam Putnam (R-FL), Chairman of the House Government Reform Commmittee's Subcommittee on Technology, Information Policy, Intergovernmental Relations and the Census, announced the formation of the "Corporate Information Security Working Group". He issued a release listing member of this group. It includes Harris Miller (President of the Information Technology Association of America), former Rep. Rick White (P/CEO of TechNet), Bruce Josten (EVP of the U.S. Chamber of Commerce), Robert Holleyman (P/CEO of the Business Software Alliance), Dave McCurdy (President of the Electronics Industry Alliance), Jerry Jasinowski (President of the National Association of Manufacturers), and other corporate leaders.

11/7. The Federal Communications Commission (FCC) published a notice in the Federal Register, on November 7, 2003, requesting comments in one of its proceedings, in which it states that "Interested parties may file comments in this proceeding on or before October 20, 2003. Reply comments may be filed on or before October 30, 2003." See, Federal Register, November 7, 2003, Vol. 68, No. 216, at Pages 63029 - 63030. This notice pertains to petitions for reconsideration, filed by AT&T and Verizon, of the FCC's order regarding telecommunications relay services (TRS) known as the "Second Improved TRS Order". An earlier FCC notice in the Federal Register described this order, and set deadlines for comments, which deadlines were subsequently extended. See, Federal Register, August 25, 2003, Vol. 68, No. 164, at Pages 50993 - 50998.

11/6. Two of the House Government Reform Committee's subcommittees held a joint hearing titled "Public Safety Interoperability". See, prepared testimony [21 pages in PDF] of William Jenkins, Director of the General Accounting Office's (GAO) Homeland Security and Justice Issues.

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