Tech Law Journal Daily E-Mail Alert
November 26, 2003, 9:00 AM ET, Alert No. 787.
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Senate Passes Another Version of Spam Bill

11/25. The Senate amended and passed S 877, the "Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003", also known as the "CAN-SPAM Act of 2003", by voice vote.

The Senate passed its first version of the bill on October 22, 2003 by a vote of 97-0.  See, TLJ story titled "Senate Passes Burns Wyden Anti-Spam Bill" in TLJ Daily E-Mail Alert No. 765, October 24, 2003. On November 22, the House passed another version of the bill by a vote of 392-5. See, Roll Call No. 671. See also, story titled "House Passes Spam Bill" in TLJ Daily E-Mail Alert No. 785, November 24, 2003.

The bill just passed by the Senate is a third version. Hence, the Congress has not yet passed a spam bill.

Sen. Conrad Burns (R-MT), a sponsor of the bill, issued a release that states that "The House of Representatives is expected to give final approval in December for the President's signature into law." On Tuesday afternoon, November 25, the House went into recess until December 8.

See also, stories titled "Senators Burns and Wyden Re-Introduce Can Spam Bill" in TLJ Daily E-Mail Alert No. 643, April 14, 2003; "Senate Commerce Committee Passes Spam Bill" in TLJ Daily E-Mail Alert No. 685, June 20, 2003; and "House Judiciary Committee Holds Hearing on Spam Bill", "House Commerce Committee Holds Hearing on Spam Bills" and "Spam Bills Pending in the House and Senate" in TLJ Daily E-Mail Alert No. 696, July 11, 2003.

Rep. Smith Introduces Bill to Strengthen Ban on Counterfeit Labeling of Software, Movies and Music

11/21. Rep. Lamar Smith (R-TX) introduced HR 3632, the "Anti-counterfeiting Amendments of 2003", a bill to revise and expand 18 U.S.C. ß 2318, which pertains to trafficking in counterfeit labels, documentation and packaging of computer programs, phonorecords, and movies.

The bill contains numerous changes. For example, the bill would expand the scope of activities encompassed by counterfeit labeling to include such things as using genuine labels with an item for which they were not intended, and altering the number of authorized users of computer programs.

Currently, a "counterfeit label" is defined as "an identifying label or container that appears to be genuine, but is not". The bill would add that a "counterfeit label" also includes "a genuine certificate, licensing document, registration card, or similar labeling component (i) that is used by the copyright owner to verify that a phonorecord, a copy of a computer program, a copy of a motion picture or other audiovisual work, or documentation or packaging is not counterfeit or infringing of any copyright; and (ii) that is, without the authorization of the copyright owner (I) distributed or intended for distribution not in connection with the copy or phonorecord to which such labeling component was intended to be affixed by the respective copyright owner; or (II) in the case of a computer program, altered or removed to falsify the number of authorized copies or users, type of authorized user, or edition or version of the computer program".

This bill would also add a new subsection to Section 2318 that creates civil remedies for violation of this section, including injunctive relief and actual or statutory damages.

The bill was referred to the House Judiciary Committee (HJC). Rep. Smith is the Chairman of its Subcommittee on Courts, the Internet and Intellectual Property (CIIP). The original cosponsors of the bill are Rep. Ric Keller (R-), Rep. Robert Wexler (D-FL), Rep. Bob Goodlatte (R-VA), Rep. Elton Gallegly (R-CA), and Rep. John Carter (R-TX). All are members of the HJC and CIIP.

DC Circuit Dismisses Petitions for Review in AT&T v. FCC

11/25. The U.S. Court of Appeals (DCCir) issued its opinion [17 pages in PDF] in AT&T v. FCC, dismissing petitions for review of a Federal Communications Commission (FCC) declaratory ruling in a proceeding pertaining to charging access fees for access to a wireless network. The Appeals Court wrote that the issues raised by the petitions are not properly before the Appeals Court.

This is a consolidation of several petitions for review, filed by AT&T, Sprint Spectrum and Cellco Partnership, of a declaratory ruling of the FCC responding to a primary jurisdiction referral from the U.S. District Court (WDMo).

The Appeals Court wrote that "The referral arose during the course of litigation between AT&T and Sprint in Missouri in which Sprint sought compensation from AT&T for its use of Sprintís wireless network. AT&T removed the case from state court to the federal district court, which then referred specific questions to the FCC under the doctrine of primary jurisdiction. In its referral order, the district court inquired of the FCC (1) whether Sprint may charge access fees to AT&T for access to the Sprint PCS wireless network and, if so, (2) the reasonableness of Sprintís charges."

The Appeals Court continued that "After receiving petitions for declaratory rulings from both AT&T and Sprint, along with public comments, the Commission held that Sprint is entitled to collect access charges from AT&T only to the extent that a contract between the parties imposes a payment obligation on AT&T. The FCC declined to determine the reasonableness of any rate until after the district court determined whether the parties are bound by a contract. Both AT&T and Sprint raise numerous challenges to the Commissionís ruling, none of which are properly before this court for review. Accordingly, we dismiss the petitions for review."

The Appeals Court held that the petitions of AT&T and Sprint are unripe for review.

This case is AT&T Corporation v. FCC and USA, respondents, and Qwest Communications International, Inc., et al., intervenors, and consolidated cases, Nos. 02-1221, 02-1240, 02-1263, and 02-1275, petitions for review of a declaratory ruling of the FCC.

FCC Publishes Notices Regarding Secondary Leasing of Spectrum

11/25. The Federal Communications Commission (FCC) published three items related to its proceeding titled "In the Matter of Promoting Efficient Use of Spectrum Through Elimination of Barriers to the Development of Secondary Markets". First, it published in its web site an Erratum [2 pages in PDF] to its October 6, 2003 Report and Order (R&O) and Further Notice of Proposed Rulemaking (FNPRM). Second, it published in the Federal Register its notice of the adoption of final rules in this R&O. Third, it published in the Federal Register a notice regarding its FNPRM.

The FCC adopted its original Notice of Proposed Rulemaking [61 pages in PDF] on November 9, 2000. See, TLJ story titled "FCC Discusses Secondary Markets for Wireless Spectrum", and TLJ news analysis titled "Mobile Internet Access Devices and the Internet", both dated November 10, 2000.

The FCC adopted its Report and Order and Further Notice of Proposed Rulemaking [198 pages in PDF] on May 15, 2003. See, story titled "FCC Adopts Order Allowing Some Secondary Leasing of Spectrum", in TLJ Daily E-Mail Alert No. 663, May 16, 2003. However, the FCC did not release this document until October 7, 2003. See, story titled "FCC Finally Releases R&O and FNPRM in Secondary Spectrum Markets Proceeding" in TLJ Daily E-Mail Alert No. 755, October 8, 2003.

The November 25 Erratum states that the October 6 item "determined that the particular services affected by the Commissionís streamlined transfer and assignment application processing policies were identical to those services encompassed within the spectrum leasing policies. The text of one of the rule provisions, however, mistakenly did not reflect this determination."

The notice of the R&O in the Federal Register (November 25, 2003, Vol. 68, No. 227, at Pages 66252 - 66286) addresses the erratum, summarizes the new final rules in this R&O, and provides that most of the new rules take effect on January 26, 2004.

The notice of the FNPRM in the Federal Register (November 25, 2003, Vol. 68, No. 227, at Pages 66231 - 66251) summarizes the FNPRM and confirms the deadlines for public comments. Comments are due December 5, 2003. Reply comments are due January 5, 2004.

This R&O and FNPRM is FCC 03-113 in WT Docket No. 00-230. For more information, contact Paul Murray of the FCC's Wireless Telecommunications Bureau at 202 418-7240 or

More Capitol Hill News

11/25. The House adjourned until 9:30 AM on December 8, 2003.

11/15. The Senate adjourned until 10:00 AM on December 9, 2003.

11/21. Rep. Richard Baker (R-LA), Rep. Anna Eshoo (D-CA), Rep. David Dreier (R-CA), introduced HR 3574, the "Stock Option Accounting Reform Act". This is the House companion bill to S 1890, introduced by Sen. Mike Enzi (R-WY), Sen. Harry Reid (D-NV) and others on November 19. These bills would require the expensing of stock options, but only for the top five executives of companies, with exemptions for small businesses and start ups. HR 3574 was referred to the House Financial Services Committee. Rep. Baker is the Chairman of its Subcommittee on Capital Markets, Insurance and Government Sponsored Enterprises. The other original cosponsors of the House bill are Rep. Mark Kennedy (R-MN), Rep. Mike Honda (D-CA), Rep. Ellen Tauscher (D-CA), Rep. Zoe Lofgren (D-CA), and Rep. Eric Cantor (R-VA). See also, story titled "Senators Introduce Bill to Require Expensing of Stock Options Granted to Officers" in TLJ Daily E-Mail Alert No. 784, November 21, 2003.

More News

11/21. Karen Evans, who is the Administrator for E-Government, Information and Technology Policy at the Office of Management and Budget (OMB), wrote a memorandum to the Chief Information Officers of executive branch agencies regarding reports to the OMB under the E-Government Act of 2002. The memorandum states that "Agency reports are due from agency Chief Information Officers to OMB on December 15, 2003 and should be submitted electronically to Danny Costello at" On August 1, 2003, the OMB released a memorandum [13 pages in PDF] regarding "Implementation Guidance for the E-Government Act of 2002". This memorandum, M-03-18, states that it "(1) outlines new E-Government Act requirements for Federal agencies; (2) explains what agencies are expected to provide under the E-Gov Act to support ongoing initiatives and new activities, including reports; and (3) explains how the Act authorizes certain ongoing governmentwide initiatives. This guidance also explains, throughout the document, how the E-Government Act fits within existing IT policy, such as OMB Circulars A-11 and A-130."

The TLJ Daily E-Mail Alert will not be published on Thursday, November 27.
Washington Tech Calendar
New items are highlighted in red.
Wednesday, November 26

The House is in adjournment until December 8.

The Senate is in adjournment until December 9.

4:00 PM. Deadline for the Federal Communications Commission's (FCC) to file with the U.S. Court of Appeals (DCCir) its response to the U.S. Telecom Association's (USTA) and CenturyTel's emergency motion for stay of the FCC's number portability rules.

Deadline to submit nominations to the Department of Commerce's (DOC) Technology Administration (TA) of individuals for appointment to the National Medal of Technology Nomination Evaluation Committee (NMTNEC). The TA 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." See, notice in the Federal Register, October 27, 2003, Vol. 68, No. 207, at Page 61190.

Deadline for the Federal Communications Commission's (FCC) Media Security and Reliability Council (MRSC) to complete voting on recommendations regarding prevention and restoration measures to ensure the continued operation and security of media facilities in the face of a national emergency. These recommendations were presented at the biannual meeting of the MRSC on November 6, 2003. See, FCC release [PDF].

Thursday, November 27

Thanksgiving Day. The Federal Communications Commission (FCC) and other government offices will be closed. The National Press Club will be closed. There will be no issue of the TLJ Daily E-Mail Alert.

Friday, November 28

The National Press Club will be closed.

Deadline to submit comments to the National Intellectual Property Law Enforcement Coordination Council (NIPLECC) regarding the agenda and mission of the NIPLECC. See, notice in the Federal Register, October 28, 2003, Vol. 68, No. 208, at Pages 61398-61399.

Monday, December 1

Deadline to submit reply 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.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Intergraph v. Intel, No. 03-1153. Location: Courtroom 203, 717 Madison Place, NW.

10:30 AM - 3:00 PM. The Federal Communications Commission (FCC) will hold a forum on Voice over Internet Protocol (VOIP) issues. Subsequently, it will issue a Notice of Public Rule Making (NPRM) "to inquire about the migration of voice services to IP-based networks and gather public comment on the appropriate regulatory environment for these services". See, FCC release of November 6, 2003. See also, agenda released on November 24, 2003.

Tuesday, December 2

9:00 AM - 4:30 PM. The Executive Office of the President's (EOP) Office of Science and Technology Policy's (OSTP) President's Council of Advisors on Science and Technology (PCAST) will hold a meeting that is open to the public. The PCAST's notice in the Federal Register states that the agenda includes the following: "(1) Discuss and, pending the discussion, approve a draft report from its information technology manufacturing competitiveness subcommittee; (2) discuss the preliminary observations and draft recommendations of its workforce education subcommittee; and (3) continue its discussion of nanotechnology and its review of the federal National Nanotechnology Initiative." The notice states both that the meeting will be on December 2 and December 3. Stan Sokul, Executive Director of the OSTP, states that the meeting is on December 2. For more information, contact Stan Sokul at 202 456-6070 or Location: Monticello Ballroom (lower level), Wyndham Washington Hotel, 1400 M Street, NW.

9:00 AM - 12:00 NOON. The Potomac Institute for Policy Studies (PIPS) will host a panel discussion titled "Enabling New Information Technologies in the War on Terrorism -- And Protecting Our Privacy at the Same Time". The scheduled speakers include Robert Popp (DARPA), Dan Gallington (PIPS), Michael Scardaville (Heritage Foundation), Jeff Jonas, and Kim Taipale. To register, contact 703 525-0770 or Location: Room 106, Dirksen Building.

10:15 AM. The Markle Foundation's Task Force on National Security in the Information Age will hold a press briefing on its report titled "Creating a Trusted Information Network for Homeland Security". From 11:30 AM - 1:30 PM there will be a panel discussion. Lunch will be served. RSVP to: or 202 638-4370. For more information, contact Todd McGovern at or 212 713-7633. Location: Russell Caucus Room (SR-325), Russell Building.

4:00 PM. Deadline for the U.S. Telecom Association's (USTA) and CenturyTel to file with the U.S. Court of Appeals (DCCir) their reply to the Federal Communications Commission's (FCC) response to their emergency motion for stay of the FCC's number portability rules.

Deadline to submit comments to the Federal Communications Commission (FCC) in response to SBC Communications' petition requesting that the FCC forbear from applying the terms of 47 U.S.C. ß 271(c)(2)(B) to the extent, if any, those provisions impose unbundling obligations on SBC that this FCC has determined should not be imposed on incumbent local exchange carriers pursuant to 47 U.S.C. ß 251. See, FCC notice [PDF]. This is WC Docket No. 03-235.

Wednesday, December 3

9:30 AM - 12:00 NOON. The American Enterprise Institute (AEI) will host a panel discussion titled "Should Regulators Set Rates to Terminate Calls on Mobile Networks?" The speakers will be Robert Crandall (Brookings), Greg Sidak (AEI) and Richard Feasey (Vodafone). See, notice. Location: AEI, 12th Floor, 1150 17th Street, NW.

Thursday, December 4

Day one of a two day event titled "21st Annual Institute on Telecommunications Policy & Regulation". See, notice. The price to attend is $1,295.00. Location: International Trade Center, Washington DC.

9:00 AM - 12:30 PM. The Internal Revenue Service's (IRS) Electronic Tax Administration Advisory Committee (ETAAC) will meet. See, notice in the Federal Register, November 7, 2003, Vol. 68, No. 216, at Pages 63192 - 63193. Location: Ritz-Carlton Hotel, Pentagon City, Diplomat Meeting Room, 1250 South Hayes Street, Arlington, VA.

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in Vernal Ent Inc v. FCC, No. 02-1297. Judges Sentelle, Tatel and Roberts will preside. Location: 333 Constitution Ave. NW.

The Federal Communications Bar Association (FCBA) will host its annual Chairman's Dinner. Location: The Washington Hilton Hotel.

People and Appointments

11/25. The Senate confirmed James Loy to be Deputy Secretary of Homeland Security, by voice vote.

11/25. President Bush nominated Juan Sanchez to be a Judge of the U.S. District Court for the Eastern District of Pennsylvania. See, White House release.

11/25. President Bush nominated Marcia Cooke to be a Judge of the U.S. District Court for the Southern District of Florida. See, White House release.

11/25. President Bush nominated Mark Warshawsky to be Assistant Secretary of the Treasury for Economic Policy. He is currently Deputy Assistant Secretary for Economic Policy, Microeconomic Analysis. Before that, he worked for the TIAA-CREF Institute. See, White House release and release.

11/25. President Bush appointed James Wilkinson to be Deputy Assistant to the President and Deputy National Security Advisor for Communications. Bush also appointed of Sean McCormack to be Special Assistant to the President and Senior Director of the National Security Council Press Office. Both appointments are be effective December 1, 2003. See, White House release.

11/25. Gregory Cooke was named Deputy Director of the Federal Communications Commission's (FCC) Enforcement Bureau's Office of Homeland Security. He has worked at the FCC since 1995. Prior to that, he worked in the New York City office of the law firm of Willkie Farr & Gallagher. See, FCC release.

11/25. BellSouth announced numerous appointments and departures among its top officers. See, BellSouth release.

11/25. Michael Sears resigned as a member of Sprint's board of directors, effective November 25, 2003. See, Sprint release.

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