Tech Law Journal Daily E-Mail Alert
December 8, 2003, 9:00 AM ET, Alert No. 794.
Home Page | Calendar | Subscribe | Back Issues | Reference
Bush Signs Bill to Promote E-Commerce in Contact Lens Sales

12/5. President Bush signed HR 3140, the "Fairness to Contact Lens Consumers Act". See, White House release. It does not reference the internet. However, it removes some barriers to the sale of replacement contact lenses over the internet.

It provides that "When a prescriber completes a contact lens fitting, the prescriber -- (1) whether or not requested by the patient, shall provide to the patient a copy of the contact lens prescription; and (2) shall, as directed by any person designated to act on behalf of the patient, provide or verify the contact lens prescription by electronic or other means."

Furthermore, it provides that "A prescriber may not -- (1) require purchase of contact lenses from the prescriber or from another person as a condition of providing a copy of a prescription ... or verification of a prescription ... ; (2) require payment in addition to, or as part of, the fee for an eye examination, fitting, and evaluation as a condition of providing a copy of a prescription ... or verification of a prescription ... ; or (3) require the patient to sign a waiver or release as a condition of verifying or releasing a prescription."

That is, currently there are eye doctors who both perform eye examinations, and sell contact lenses. In addition, there are eye doctors who restrict their customers' ability to purchase their contact lenses from other suppliers. This results in higher prices for consumers, and leads many consumers to replace the contact lenses less frequently. This bill provides that a consumer may obtain a eye examination from one source, and purchase lenses and replacement lenses from another source, including internet based retailers.

This bill passed the House on November 19, 2003 by a vote of 406-12. See, Roll Call No. 644. The Senate passed the bill by unanimous consent on November 20. See, story titled "House Passes Contact Lens Bill" in TLJ Daily E-Mail Alert No. 783, November 20, 2003.

HR 3140 follows HR 2221, also titled the "Fairness to Contact Lens Consumers Act". It was introduced on May 22, 2003 by Rep. Richard Burr (R-NC), Rep. Billy Tauzin (R-LA), Rep. James Sensenbrenner (R-WI), and Rep. Jim Matheson (D-UT). See, story titled "Bill Would Facilitate Internet Sale of Replacement Contact Lenses" in TLJ Daily E-Mail Alert No. 669, May 29, 2003.

The Federal Trade Commission (FTC) has studied internet sales of contact lenses. Ed Cruz, the then Director of the FTC's Office of Policy Planning, testified before a House Commerce Committee subcommittee on state impediments to e-commerce last year. He presented the FTC's prepared statement, which reviewed the FTC's March 27, 2002, comment submitted to the State of Connecticut regarding the sale of disposable replacement contact lenses over the internet. The FTC wrote that "requiring stand alone sellers of replacement contact lenses to obtain Connecticut optician and optical establishment licenses would likely increase consumer costs while producing no offsetting health benefits" and "serve as a barrier to the expansion of Internet commerce". See also, story titled "FTC Backs Internet Sales of Contact Lenses" in TLJ Daily E-Mail Alert No. 399, March 29, 2002.

HR 3140 also gives the FTC rule making authority, civil enforcement authority, and instructions to write a report to the Congress on "competition in the sale of prescription contact lenses".

Grand Jury Returns Indictment for Illegal Distribution of Prescription Drugs by Internet

12/4. The Department of Justice (DOJ) announced the unsealing of a 108 count indictment [61 page PDF scan] that was returned by a grand jury of the U.S. District Court (EDVa) on October 30, 2003. The indictment charges ten people and three companies with various offenses related to the sale of prescription drugs through web sites.

The indictment charges Vineet K. Chhabra (also known as Vincent K. Chhabra), Daniel L. Thompson, Sabina S. Faruqui (also known as Sabina K. Chhabra), Sunil K. Sethi, James A. Trovato, Daniel M. Varalli, William D. Thompson, Laurence L. Cockerille, Arturo L. Portales, Russell A. Johnson, USA Prescription, Inc., Chhabra Group, LLC, and VKC Consulting, LLC.

The indictment includes 40 counts of unlawful distribution and dispensing of controlled substances in violation of 21 U.S.C. Ё 841(a)(1), (b)(1)(D), and (b)(2). The indictment also charges conspiracy, continuing criminal enterprise, conspiracy to launder money, promotional money laundering, transactional money laundering, introduction of misbranded drugs into interstate commerce, and criminal forfeiture.

The U.S. Attorneys Office stated in a release [PDF] that "The indictment charges that the defendants used an ``online ordering process创 to allow customers to order prescription controlled substance drugs over the Internet, through such websites as ``www.get-it-on.com.创 When customers ordered drugs online, the indictment charges that the customers chose the type, quantity, and dose of controlled substances they wanted, and answered some questions on a medical form. However, no one checked the accuracy of the information that customers provided, as the Controlled Substances Act requires; and customers obtained the drugs without ever meeting a doctor face-to-face, as required by law."

BSA & ISSA Release Results of Survey on Information Security

12/3. The Business Software Alliance (BSA) and the Information Security Systems Association (ISSA) released a report titled "BSA-ISSA Information Security Study: Online Survey of ISSA Members". This study was based upon online interviews with 1,716 members of the ISSA.

When asked, "Would you say the risk of a major cyber attack on your organization during the next 12 months is extremely likely, very likely, somewhat likely, not very likely, or not at all likely?", 24% responded "very likely", 41% responded "somewhat likely", and 27% responded "not very likely".

When asked "How prepared do you think your organization is to defend against a major cyber attack?", 20% responded "very prepared", 58% responded "somewhat prepared", and 16% responded "not very prepared".

When asked "Has the ability of your organization to defend itself against a major cyber attack gotten much better, a little better, remained the same, gotten a little worse or much worse over the past 12 months?", 15% responded "remained the same", 46% responded "a little better", and 32% responded "much better", while only 3% responded either "a little worse" or "much worse".

The report also presents survey results on security technologies currently employed by respondents: anti-virus software (99%), firewalls (97%), e-mail filtering (74%), intrusion detection systems -- network (62%), e-mail attachment blocking (62%), internet web site blocking (59%), vulnerability scanners -- network systems (43%), and encrypted e-mail (31%).

The report states that 19% of security professionals say their company has reported a cyber incident or intrusion to law enforcement or other government agency during the past year.

The ISSA is holding its annual convention from December 8 through December 11, at the Jacob Javits Center in New York, NY. See, convention web site.

NCTA Files Petition for Rehearing En Banc in Brand X v. FCC

12/5. The National Cable Telecommunications Association (NCTA) and several cable companies filed a petition for rehearing en banc [PDF] with the U.S. Court of Appeals (9thCir) in the case Brand X v. FCC.

The FCC filed its petition for rehearing en banc on December 4. See, story titled "FCC Files Petition for Rehearing En Banc in Brand X Case" in TLJ Daily E-Mail Alert No. 793, December 5, 2003.

The NCTA's petition, like the FCC's, argues that the three judge panel erred by not applying the Chevron standard. However, the NCTA petition also argues the likely consequences for broadband deployment if the October 6, 2003 opinion [39 pages in PDF] of the three judge panel is not reversed.

The NCTA petition argues that "en banc review is warranted because the subject matter at hand is unusually important. At issue in this case is the regulatory blueprint not just of cable modem service, but of all broadband Internet access -- whether provided over coaxial cable, telephone wire, radio spectrum, or some other medium. Accelerating the proliferation of broadband Internet access is a national economic priority: it is widely accepted that broadband, if available to sufficient numbers of Americans, will reignite the national economy." (Footnotes omitted.)

The NCTA petition continues that "Classifying cable broadband service as a telecommunications service threatens to stifle that deployment. While an "information service" can develop relatively free from burdensome regulation, and the Commission can tailor a regulatory scheme designed to promote its widespread development and deployment, a ``telecommunications service创 -- the classification in which the panel placed what it characterized as the "transport component" of cable modem service -- is subject to heavy regulation of nearly every aspect of the business unless the Commission specifically forbears from such regulation."

The three judge panel vacated the FCC's declaratory ruling that cable modem service is an information service, and that there is no separate offering as a telecommunications service. The FCC adopted this Declaratory Ruling and Notice of Proposed Rulemaking [75 pages in PDF] at its March 14, 2002 meeting. This is FCC 02-77 in Docket No. 00-185 and Docket No. 02-52.

This case is Brand X Internet Services v. Federal Communications Commission, and other consolidated petitions for review of a final order of the FCC, Nos. 02-70518, 02-70684, 02-70685, 02-70686, 02-70879, 02-71425, and 02-72251. The opinion of the three judge panel is also published at 345 F.3d 1120. The present petition for rehearing en banc was submitted by the National Cable Telecommunications Association (NCTA), Time Warner, Time Warner Cable, Charter Communications, and Cox Communications, who are intervenors in this case.

Bond Urges Holistic Approach to Dealing With Nanotechnology's Ethical and Societal Issues

12/3. Phil Bond, Undersecretary of Commerce for Technology, gave a speech titled "Preparing the Path for Nanotechnology: Addressing Legitimate Societal and Ethical Issues".

He first summarized S 189, the "21st Century Nanotechnology Research and Development Act", which President Bush signed on December 3. See, story titled "Bush Signs Nanotech R&D Funding Bill" in TLJ Daily E-Mail Alert No. 792, December 4, 2003. See also, story titled "House and Senate Pass Nanotech R&D Bill" in TLJ Daily E-Mail Alert No. 784, Nov. 21, 2003.

Phil BondBond, at right, then stated that "nanotechnology -- with its myriad evolutionary and revolutionary applications -- is coming, and it can't be stopped. Some voices around the world are calling for a slow down or even an outright moratorium on nanotechnology research and development. To those calling for a slow down or halt on the nano front, I say instead: Prepare for the inevitability of a world blessed with nano and nano-enabled products and services. The economic promise, the societal potential, and the human desire for rolling back the frontiers of knowledge -- to go where no one has gone before -- are forces that cannot be held back."

He argued that "a halt, or even a slowdown, would be the most unethical of choices" because of the possibilities that nanotechnology offers, such as "to eradicate diseases", "to extend the length and the quality of life", "to feed the world's hungry", "to repair existing environmental damage" and to provide "clean production technologies".

He then stated that "the United States is unquestionably the global leader in nano research, development and commercialization. If you look at the numbers, whether in patents or publications, the U.S. is far ahead."

"But", he added, "we are also the world leader in addressing the prospective societal and ethical issues associated with the development and commercialization of nanotechnology."

He continued that "Revolutionary technologies can create public apprehension and fear, resulting in efforts to stop their advance." Hence, said Bond, "We must identify legitimate ethical and societal issues and address them as soon as possible."

He suggested that "we need a holistic approach that embraces ethicists, philosophers, theologians, historians, consumer advocates, business leaders, public officials, and others, with scientists and engineers playing a unique and critical role."

Sachs Addresses DTV Must Carry Requirements and Cable Prices

12/3. Robert Sachs, P/CEO of the National Cable & Telecommunications Association (NCTA), gave a speech [9 pages in PDF] at a convention in Anaheim, California. He discussed, among other topics, must carry and multicasting requirements, and 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".

The GAO released its cable report on October 24, 2003. This report found that competition, whether from other wire based cable operators, or from direct broadcast satellite (DBS), leads to lower prices and better quality service. See, story titled "GAO Releases Study on Cable Industry" in TLJ Daily E-Mail Alert No. 766, October 27, 2003.

Sachs stated that "The report found what we already knew -- that DBS is ``an important competitor to cable创 and that cable prices reflect cable costs as well as increased benefits to consumers. Yet, cable competitors do not cease to use advertising and the media to exploit the fact that cable prices have risen faster than inflation. Of course, they leave out that the number of channels operators offer has greatly expanded, that consumers are watching cable channels a lot more, and are getting even better value for their dollar."

Sachs also addressed must carry and multicasting requirements. That is, cable operators must carry broadcasters analog signals. And, the Federal Communications Commission (FCC) has stated that if a broadcaster replaces an analog signal with a digital signal, that is subject to must carry rules. However, since digital TV technology utilizes spectrum more efficiently, broadcasters can multicast multiple digital signals. Broadcasters have argued that all of these multicast signals should be subject to must carry rules. Cable operators have argued the contrary.

The FCC has not acted recently on this issue. However, there are a number of old and open proceeding in which the FCC could act. See, for example, FCC Docket Numbers 00-96 and 98-120.

FCC Commissioners and staff have recently held ex parte meetings with, and received communications from, representatives of broadcasters and others. See, for example, November 25, 2003 letter [4 pages in PDF] from National Association of Broadcasters (NAB) P/CEO Edward Fritts to FCC Chairman Michael Powell; November 20, 2003 letter [PDF] from ABC to FCC; November 7, 2003 filing [9 pages in PDF] with the FCC by NBC; and September 24 letter [27 pages in PDF] from Paxson Communications to the FCC.

(For a contrary viewpoint, see December 5, 2003 essay titled "DTV Mandate Tally Could Grow Again With Upcoming Multicasting Decision" by Adam Thierer of the Cato Institute.)

Sachs stated in his December 3 speech that "Also on cable's plate in Washington is the push by broadcasters to get the FCC to require cable operators to carry digital duplicates of every analog broadcast signal plus multiple new channels for every broadcast station. Rather than compete in the market on the basis of quality and value as other programmers do every day, broadcasters want the government to guarantee cable and satellite distribution of every new service they launch.

"We believe that the FCC got it right three years ago when it preliminarily found that dual must carry would be unconstitutional and that the statutory term ``primary video signal创 conclusively means one and not multiple video signals. These, of course, are questions of law, not policy", said Sachs.

He concluded that "policy reasons also argue against dual must carry and multicasting requirements. Consumers want more choices and greater programming diversity, not multiple channels from the same broadcast entities forced on them by the federal government."

Verizon Not Liable for Employee's Forged and Fraudulent E-Mail to Complaining Customer

12/5. The U.S. Court of Appeals (6thCir) issued its opinion in Booker v. GTE.net, affirming the District Court's dismissal of a civil complaint. A Verizon employee sent a forged and fraudulent e-mail message to a customer who had repeatedly complained about Verizon internet access service. The forged e-mail, which impersonated an employee a state Attorney General, instructed the customer to stop complaining. The impersonated employee sued GET.net/Verizon alleging libel, failure to supervise an employee, and other claims.

The plaintiff, Jarmilia Booker, is a long-time employee of the Office of the Attorney General (OAG) of the state of Kentucky.

An employee of Verizon (which acquired GTE) wrote an e-mail message to a Verizon customer who had complained about Verizon service. The customer had also forwarded copies of the complaints to the Kentucky OAG. The Verizon employee deceptively represented that the e-mail was sent by, not Verizon, but by Jarmilia Booker. The Verizon employee further asserted in the forged e-mail message that the customer's complaint was a waste of time and "pathetic". The forged message instructed the customer to stop complaining.

Booker filed a complaint in U.S. District Court (EDKent) against GTE.net, doing business as Verizon Internet Solutions, alleging violation of the Racketeering Influenced and Corrupt Organizations Act (RICO), and state law claims, including failure to supervise employee, intentional infliction of emotional distress, civil conspiracy and libel.

The District Court dismissed the complaint for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.

The Appeals Court affirmed. First, Booker did not argue the RICO claim on appeal. Second, the Appeals Court affirmed the dismissal of the negligent supervision claim on the grounds that the complaint did not allege "knowledge" on the part of Verizon. Third, the Appeals Court affirmed the dismissal of the intentional infliction of emotional distress, civil conspiracy and libel claims on the grounds that employee was not acting within the scope of his or her employment.

Hence, a Verizon employee who writes an e-mail to a Verizon customer about that customer's contract for services with Verizon, may not be acting within the scope of his or her employment with Verizon -- in the Sixth Circuit.

This case is Jarmilia Booker v. GTE.NET, LLC, U.S. Court of Appeals for the 6th Circuit, No. 02-6190, an appeal from the U.S. District Court for the Eastern District of Kentucky, at Frankfort, D.C. No. 02-00009, Judge Joseph Hood presiding.

California Court of Appeal Rules in Case Regarding Echostar Advertising

12/5. The California Court of Appeal (2/5) issued its opinion [MS Word] in CA v. Echostar, a case involving state law claims alleging false advertising of digital broadcast satellite service. The trial court granted summary judgment to Echostar. The Court of Appeal affirmed in part and reversed in part.

The plaintiffs are Consumer Advocates (CA) and David Pritikin. The Defendants are Echostar Satellite Corporation, Dish Network, Echostar Communications Corporation and Echosphere Corporation.

The plaintiffs filed a complaint in Superior Court in Los Angeles County alleging violation of the California Consumer Legal Remedies Act (CLRA), the False Advertising Act, and the Unfair Competition Law (UCL). They alleged that Echostar made misleading statements about its satellite television service in a brochure. They complain about the following statements: "crystal clear digital video," "CD-quality" audio, and an on-screen program guide which would allow a consumer to view the schedule "up to 7 days in advance," and that 50 channels would be provided.

The Superior Court granted summary judgment to Echostar. The Court of Appeal affirmed as to breach of warranty, but reversed as to other claims. It held that there are triable issued on whether the statements were untrue or misleading.

This case is Consumer Advocates, et al. v. Echostar Satellite Communications, et al., Court of Appeal of the State of California, Second Appellate District, Division Five, Case No. B16149, an appeal from the Superior Court for Los Angeles County, Super. Ct. No. BC21110.

Washington Tech Calendar
New items are highlighted in red.
Monday, December 8

The House will meet at 9:30 AM for morning business and at 11:00 AM for legislative business. It will take up the conference report HR 2673, the Consolidated Appropriations Act for Fiscal Year 2004. See, Republican Whip Notice.

The Senate is in adjournment until December 9.

The House Rules Committee will meet to adopt a rule for consideration of HR 2673, the Consolidated Appropriations Act for Fiscal Year 2004.

Deadline to submit comments to the Federal Communications Commission (FCC) regarding its notice of proposed rulemaking (NPRM) regarding human exposure to radiofrequency (RF) energy. The FCC adopted this notice of proposed rulemaking on June 12, 2003, and released it on June 26, 2003. This is ET Docket No. 03-137. For more information, contact Robert Cleveland in the FCC's Office of Engineering and Technology at 202 418-2422 or robert.cleveland@fcc.gov. See, notice in the Federal Register, September 8, 2003, Vol. 68, No. 173, at Pages 52879 - 52889.

Deadline to submit comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) regarding implementation of 47 U.S.C. 272(b)(1). This NPRM is FCC 03-272 in WC Docket No. 03-228. The FCC adopted this NPRM on November 3, 2003, and released it on November 4, 2003. For more information, contact Christi Shewman at 202 418-1686 or christi.shewman@fcc.gov. See, notice in the Federal Register, November 21, 2003, Vol. 68, No. 225 at Pages 65665 - 65667.

8:45 AM - 5:30 PM. There will be a day long conference titled "Patent and Trademark Office Day" sponsored by the Intellectual Property Owners Association (IPO). See, agenda [PDF]. Location: the Ronald Reagan Building and International Trade Center. The highlights of the event include the following:
  • 8:45 AM. Nicholas Godici (Commissioner for Patents) will give a speech titled "Introduction and Preview of PTO Move to New Campus". Esther Kepplinger (Deputy Commissioner for Patent Operations) will give a speech titled "Restriction Practice Reform and Unity of Invention Study". Charles Van Horn (Finnegan Henderson) will give a speech titled "Recent Developments in the Law of Inequitable Conduct".
  • 10:30 AM. Stephen Kunin (Deputy Commissioner for Patent Examination Policy) will give a speech titled "Written Description Requirement in Patent Law". Herbert Wamsley (IPO) will give a speech titled "Federal Circuit Opinions Affecting PTO Patent Practice: Key Cases of the Past Year".
  • 12:00 NOON -1:30 PM. Jonathan Dudas (Deputy Director of the USPTO) will give the luncheon address on the USPTO's 21st Century Strategic Plan.

Tuesday, December 9

The House may take up conference reports. See, Republican Whip Notice.

The Senate will return from recess at 10:00 AM. It will take up HR 2673, the Consolidated Appropriations Act for Fiscal Year 2004.

Day one of a two day meeting of the Executive Office of the President's (OEP) Office of Science and Technology Policy's (OSTP) National Science and Technology Council's (NSTC) Committee on Science's Subcommittee on Research Business Models regarding the policies, procedures, and plans relating to the business relationship between federal agencies and research performers. See, notice in the Federal Register, September 16, 2003, Vol. 68, No. 179, at Pages 54225 - 54226. Location: Department of Agriculture, 1400 Independence Ave., SW.

8:00 AM EST / 11:00 AM PST. Federal Communications Commission (FCC) Chairman Michael Powell will speak at the University of California, San Diego (UCSD) on the subject "Charting the Future of the Telecom Industry". The event is at the Robinson Auditorium, UCSD, but will also be webcast; see, www.calit2.net, www.irps.edu, or www.jacobsschool.ucsd.edu. Powell will also tour Indian reservations that have high speed internet access facilities, including Wi-Fi; however, this will not be webcast.

8:25 AM - 5:15 PM. The National Institute of Standards and Technology's (NIST) Visiting Committee on Advanced Technology will meet. Some of the meeting will be closed to the public. The agenda includes a NIST update on current NIST programs; strategic plan and program priorities; human resources, safety, and diversity; and program implementation and evaluation. The deadline to register is December 4. Contact Carolyn Peters at 301 975-5607 carolyn.peters@nist.gov. See, notice in the Federal Register,  November 25, 2003, Vol. 68, No. 227, at Pages 66074 - 66075. Location: NIST, Employees Lounge, Administration Building, Gaithersburg, MD.

8:30 AM - 3:15 PM. The American Enterprise Institute (AEI) will host a conference titled "Competition versus Cooperation in Global Tax Policy" See, notice. Location: AEI, 12th Floor, 1150 17th Street, NW.

9:00 AM - 4:30 PM. The Department of Commerce's (DOC) National Telecommunications and Information Administration (NTIA) will hold the first in a series of public meetings on government management of spectrum. The speakers will include Samuel Bodman (Deputy Secretary of Commerce), Michael Gallagher (acting head of the NTIA), John Muleta (Chief of the FCC's Wireless Telecommunications Bureau), and Ed Thomas (Chief of the FCC's Office of Engineering & Technology). See agenda. See also, notice in the Federal Register, November 24, 2003, Vol. 68, No. 226, at Page 65893. For more information, contact Joe Gattuso at 202 482-1880 or jgattuso@ntia.doc.gov. Location: Room 4830, Hoover Building, 1401 Constitution Avenue, NW.

10:00 AM. Rep. Adam Putnam (R-FL), Chairman of the House Government Reform Committee's Subcommittee on Technology, Information Policy, Intergovernmental Relations and the Census will release a report titled "2003 Federal Agency Computer Security Scorecard". This caries on the annual reporting begun by his predecessor, former Rep. Stephen Horn (R-CA). For more information, contact Bob Dix at 202 225-6751. Location: Room 2154, Rayburn Building.

12:00 NOON. The Federal Communications Bar Association's (FCBA) Common Carrier Practice Committee will host a brown bag lunch. The topic will be the MFJ decree, the Section 271 process, and the effectiveness of the 20-year experiment with line of business restrictions, and pending FCC proceedings regarding structural and non-structural safeguards. The speakers will be Bernard Wunder, James Harralson, and Richard Metzger. RSVP to Cecelia Burnett at 202 637-8312 or cmburnett@hhlaw.com. Location: Hogan & Hartson LLP, 555 13th St., NW. lower level.

5:00 PM. Technology Administration (TA) Under Secretary Phil Bond will deliver opening remarks on IT outsourcing and manufacturing at roundtable discussion titled "What Will Made in America Look Like in the Future". Location: Baltimore Museum of Industry, Baltimore, MD.

Wednesday, December 10

The House may take up conference reports. See, Republican Whip Notice.

8:15 - 11:30 AM. The National Institute of Standards and Technology's (NIST) Visiting Committee on Advanced Technology will meet. Some of the meeting will be closed to the public. The agenda includes a NIST update on current NIST programs; strategic plan and program priorities; human resources, safety, and diversity; and program implementation and evaluation. The deadline to register is December 4. Contact Carolyn Peters at 301 975-5607 carolyn.peters@nist.gov. See, notice in the Federal Register,  November 25, 2003, Vol. 68, No. 227, at Pages 66074 - 66075. Location: NIST, Employees Lounge, Administration Building, Gaithersburg, MD.

9:00 AM. The Department of Commerce's (DOC) Bureau of Industry and Standards's (BIS) Regulations and Procedures Technical Advisory Committee will hold a public meeting. The agenda includes, among other topics, "Discussion on technology controls, including proposed rule on computer and microprocessor technology", and "Discussion on deemed export licensing". See, notice in the Federal Register, November 20, 2003, Vol. 68, No. 224, at Page 65437. Location: Room 3884, Hoover Building, 14th Street between Constitution and Pennsylvania Avenues, NW.

9:30 - 11:00 AM. The Progressive Policy Institute (PPI) will host a panel discussion titled "Is There Really A Manufacturing Job Crisis?" The speakers will be Robert Atkinson (PPI's Technology and New Economy Project), Bob Baugh (AFL-CIO), Stephen Moore (Cato Institute and Club for Growth). See, notice. Location: 600 Pennsylvania Avenue, SE, Suite 400.

12:15 - 1:45 PM. The New America Foundation will host a panel discussion titled "Should Last Mile Broadband Connection to the Home be Universal? Should the Government Build the Infrastructure to make it Happen?" The speakers will be Reed Hundt (former FCC Chairman), Harold Furchtgott-Roth (former FCC Commissioner), and William Lehr (MIT). See, notice. RSVP to Jennifer Buntman at buntman@newamerica.net or 202 986-4901. Location: 1630 Connecticut Ave., NW, 7th Floor.

4:00 PM. The Cato Institute will host a book forum. James Bovard will discuss his book titled Terrorism and Tyranny: Trampling Freedom, Justice and Peace to Rid the World of Evil, and Philip Heymann will discuss his book titled Terrorism, Freedom, and Security: Winning Without War. See, notice. The event will be webcast. Location: Cato, 1000 Massachusetts Avenue, NW.

Day one of a two day conference hosted by the Department of Commerce (DOC) titled "Workshop on Optics and Photonics in Transportation and Infrastructure". Different notices state that at 8:30 AM or at 10:30 AM Ben Wu (Deputy Under Secretary of Commerce) will give opening remarks. Other scheduled speakers include Jeffrey Shane (Under Secretary of Transportation for Policy) and Stephen McHale (Deputy Administrator, Transportation Security Administration). See, event web site. For more information, contact Connie Correll at 202 482-1065. Location: DOC.

Day one of a two day symposium hosted by the National Institute of Standards and Technology (NIST) titled "Building Trust and Confidence in Voting Systems". The topics to be addressed include computer security. See, notice and symposium web site. The registration deadline is December 2. Location: NIST, Red Auditorium, Building 101.

Day two of a two day meeting of the Executive Office of the President's (OEP) Office of Science and Technology Policy's (OSTP) National Science and Technology Council's (NSTC) Committee on Science's Subcommittee on Research Business Models regarding the policies, procedures, and plans relating to the business relationship between federal agencies and research performers. See, notice in the Federal Register, September 16, 2003, Vol. 68, No. 179, at Pages 54225 - 54226. Location: Department of Agriculture, 1400 Independence Ave., SW.

TIME? On December 10-12 there will be a conference hosted by many government agencies titled "Perspectives on Employment of Persons with Disabilities". On December 10 Ben Wu (Deputy Under Secretary of Commerce) will speak on the Department of Commerce's Assistive Technology Initiative. For more information, contact Connie Correll at 202 482-1065. Location: Hyatt Regency Bethesda Hotel, Bethesda, MD.

Deadline for AT&T Wireless to respond to the December 4 letter [PDF] of John Muleta, Chief of the Federal Communications Commission's (FCC) Wireless Telecommunications Bureau (WTB), regarding the extent of AT&T's compliance with the FCC's number portability rules that went into effect on November 24, 2003.

Thursday, December 11

The House may take up conference reports. See, Republican Whip Notice.

Day two of a two day symposium hosted by the National Institute of Standards and Technology (NIST) titled "Building Trust and Confidence in Voting Systems". The topics to be addressed include computer security. See, notice and symposium web site. The registration deadline is December 2. Location: NIST, Red Auditorium, Building 101.

Day one of a two day conference hosted by the Power Line Communications Association (PLCA). Acting head of the National Telecommunications and Information Administration (NTIA) Michael Gallagher is scheduled to speak at 3:00 PM. For more information, contact Craig Schaar. Location: Troutman Sanders, Conference Center, 401 Ninth Street, NW.

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.

Friday, December 12

The House may take up conference reports. See, Republican Whip Notice.

Day two of a two day conference hosted by the Power Line Communications Association (PLCA). For more information, contact Craig Schaar. Location: Troutman Sanders, Conference Center, 401 Ninth Street, NW.

Deadline to submit comments to the Office of the U.S. Trade Representative (USTR) regarding barriers to U.S. exports of goods, services and overseas direct investment for inclusion in the USTR's annual National Trade Estimate Report on Foreign Trade Barriers (NTE). The USTR seeks comments on, among other issues, lack of intellectual property protection, trade restrictions affecting electronic commerce, and technology transfer requirements. See, notice in the Federal Register, October 31, 2003, Vol. 68, No. 211, at Pages 62159 - 62160.

Deadline to submit reply 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. 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. 251. See, FCC notice [PDF]. This is WC Docket No. 03-235.

Deadline to submit comments to the Federal Communications Commission (FCC) regarding Northland Networks' petition pursuant to 47 U.S.C. 252(e)(5) requesting that the FCC preempt the jurisdiction of the New York Public Service Commission to resolve a dispute between Northland and Verizon regarding reciprocal compensation and change of law provisions of their interconnection agreements. This is WC Docket No. 03-242. See, FCC notice [PDF].

FCC Publishes Notices Regarding Broadcast Flag Proceeding

12/3. The Federal Communications Commission (FCC) published a notice in the Federal Register summarizing, and setting deadlines for comments on, its further notice of proposed rulemaking (NPRM) in its proceeding titled "In the Matter of Digital Broadcast Content Protection". This item is FCC 03-273 in MB Docket 02-230. This FNPRM seeks comment regarding a permanent approval mechanism for content protection and recording technologies to be used in conjunction with device outputs.

Although, the FCC announced the comments deadlines when it released this Report and Order Further Notice of Proposed Rulemaking [72 pages in PDF] on November 4, 2003. Comments are due by January 14, 2004. Reply comments are due by February 13, 2004. See, Federal Register, December 3, 2003, Vol. 68, No. 232, at Pages 67624 - 67629.

The FCC also published a separate notice in the Federal Register summarizing and stating the effective date of the rules changes included in this item -- particularly, a broadcast flag mandate. The effective date is January 2, 2004. See, Federal Register, December 3, 2003, Vol. 68, No. 232, at Pages 67599 - 67607.

A broadcast flag is digital code embedded into a digital broadcasting stream. It signals digital television (DTV) reception equipment to limit redistribution. For it to be effective, DTV equipment must give effect to a broadcast flag. Hence, this report and order contains technology mandates for equipment manufacturers.

For more information, contact Rick Chessen rchessen@fcc.gov or Susan Mort at smort@fcc.gov or 202-418-7200. See also, story titled "FCC Releases Broadcast Flag Rule" in TLJ Daily E-Mail Alert No. 772, November 5, 2003.

USPTO Notices

12/4. The U.S. Patent and Trademark Office (USPTO) published a notice in the Federal Register of proposed rule changes regarding revision of patent term extension and patent term adjustment provisions related to decisions by the Board of Patent Appeals and Interferences. The notice states that "The patent term extension provisions of the Uruguay Round Agreements Act (URAA) and the patent term adjustment provisions of the American Inventors Protection Act of 1999 (AIPA) each provide for the possibility of patent term extension or adjustment if the issuance of the patent was delayed due to review by the Board of Patent Appeals and Interferences (BPAI) or by a Federal court and the patent was issued pursuant to or under a decision in the review reversing an adverse determination of patentability." The USPTO "is proposing to revise the rules of practice in patent cases to indicate that under certain circumstances a remand by the Board of Patent Appeals and Interferences shall be considered a decision in the review reversing an adverse determination of patentability for purposes of patent term extension or patent term adjustment." The deadline for public comments is January 5, 2004. See, Federal Register, December 4, 2003, Vol. 68, No. 233, at Pages 67818 - 67821.

12/4. The U.S. Patent and Trademark Office (USPTO) published a notice in the Federal Register that lists, summarizes, and sets the effective date for several corrections to a final rule revising the rules of practice in patent cases to conform them to amendments made to the Regulations under the Patent Cooperation Treaty (PCT). The effective date is January 1, 2004. See, Federal Register, December 4, 2003, Vol. 68, No. 233, at Page 67805. The original rule changes were published in a notice in the Federal Register, October 20, 2003, Vol. 68, No. 202, at Pages 59881 - 59889. The December 4, 2003 notice also contains one correction to an error in the rules of practice in patent cases relating to PCT procedure.

About Tech Law Journal
Tech Law Journal publishes a free access web site and subscription e-mail alert. The basic rate for a subscription to the TLJ Daily E-Mail Alert is $250 per year. However, there are discounts for subscribers with multiple recipients. Free one month trial subscriptions are available. Also, free subscriptions are available for journalists, federal elected officials, and employees of the Congress, courts, and executive branch. The TLJ web site is free access. However, copies of the TLJ Daily E-Mail Alert are not published in the web site until one month after writing. See, subscription information page.

Contact: 202-364-8882; E-mail.
P.O. Box 4851, Washington DC, 20008.
Privacy Policy
Notices & Disclaimers
Copyright 1998 - 2003 David Carney, dba Tech Law Journal. All rights reserved.