Tech Law Journal Daily E-Mail Alert
January 6, 2004, 9:00 AM ET, Alert No. 810.
Home Page | Calendar | Subscribe | Back Issues | Reference
FCC Fines Fax Mill Five Million

1/5. The Federal Communications Commission (FCC) released an Order of Forefeiture [16 pages in PDF] that assesses a monetary forfeiture of $5,379,000 against, Inc. for violations of the the Telephone Consumer Protection Act (TCPA). The order states that willfully and repeatedly violated 47 U.S.C. § 227(b)(1)(C), and the FCC's rules, by sending unsolicited advertisements to telephone facsimile machines on behalf of its clients on 489 separate occasions.

FCC Chairman Michael Powell wrote in a separate statement [PDF] that ""Consumers hate to go to their fax machine only to find their resources have been wasted on spam and junk. We’re sending relief in the form of a simple message to junk faxers: violate our rules, and you will pay the consequences. Today’s action marks the largest forfeiture the Commission has ever issued in this area. We will not rest until consumers find peace from unwanted and unlawful intrusions – whether from telemarketing calls or junk faxes."

The FCC adopted this order on December 31, 2003. This item is FCC 04-2 in File No. EB-02-TC-120. See also, FCC release.

District Court Compares AT&T to Lily "Ernestine" Tomlin

12/24. The U.S. District Court (DMass) issued an Memorandum and Order [17 pages in PDF] in Veno v. AT&T on cross motions for summary judgment. AT&T repeatedly accessed Veno's credit report, without authority, and over Veno's repeated demands that it stop. The District Court ruled that the case may go to a jury on some, but not all of the claims in the complaint alleging violation of the federal Fair Credit Reporting Act (FCRA), and related Massachusetts statutes.

AT&T repeatedly obtained Robert Veno's credit report between June 1996 and August 2000. Veno has never been a customer of AT&T, and AT&T had no authority to obtain the reports. Veno repeatedly telephoned and wrote AT&T to complain. Eventually, his attorney wrote on his behalf, to no avail.

Finally, Veno filed a complaint in District Court against AT&T alleging violations of federal and state law. Count I alleges violation of the FCRA by obtaining a report under false pretenses. Count II alleges violation of the FCRA by knowingly obtaining a report without permissible purpose. Count III alleges violation of the FCRA by willfully obtaining a report without permissible purpose. Count IV alleges invasion of financial privacy under Massachusetts statute. Count V alleges another state law violation.

In litigation, AT&T did not dispute that it had accessed credit reports without authority. It argued that the whole four year series of accessing credit reports, and ignoring complaints, was an understandable mistake, resulting in a nuisance suit. It was seeking credit reports of Veno's father, Robert Veno, Sr.

The Court was not impresse with the understandable mistake argument. It wrote that despite of of Veno's phone calls, letters, and attorney letters, "AT&T's response to these efforts might best be summarized by ``Ernestine´´, the telephone operator portrayed by Lily Tomlin on ``Saturday Night Live´´: ``We don't care. We don't have to. We're the phone company.´´"

(The District Court omitted a "snort" from the original. See, excerpt from episode of Saturday Night Live.)

However, the bulk of the opinion is devoted to application of summary judgment standards to each of the counts in the complaint. The opinion thus contains a review of the precedent on FRCA provisions relating to obtaining credit reports without authorization.

The Court granted AT&T summary judgment on Count I. It dismissed Count II on its own motion. It lets stand for trial the remaining counts. It also noted that Veno might want to amend his complaint to add a claim for violation of the FRCA for negligently obtaining a report without permissible purpose.

The Court wrote that "There is at the very least a triable issue on whether AT&T's conduct meets the ``willful´´ standard required under FCRA, 15 U.S.C. § 1681n."

This case is Robert Veno v. AT&T, U.S. District Court of the District of Massachusetts, D.C. No. 02-10383-NG, Judge Nancy Gertner presiding.

Ferguson Addresses Information Tech and Productivity Growth

1/4. Federal Reserve Board (FRB) Vice Chairman Roger Ferguson gave a speech titled "Lessons from Past Productivity Booms" in which he addressed, among other topics, the relationship between advances in information technology and economic growth. He spoke to the American Economic Association in San Diego, California.

He began by observing that labor productivity "has risen at an average annual rate of about 3 percent, up from an average annual rate of around 1-1/2 percent between 1973 and 1995." He said that "If productivity were to continue to improve at an average annual rate of 3 percent, the standard of living in the United States would double roughly every twenty-four years." He then set out to identify and explain the history of productivity growth of the U.S. economy. One of the causes of productivity growth that he discussed was news technologies.

He stated that "Although the productivity booms of the past century and a quarter obviously differed in many respects, each episode can readily be associated with the introduction of one or more new technologies." For example, he identified the development of railroads, the telegraph, and electrification of factories as technologies that drove prior periods of high productivity growth.

Roger FergusonFerguson (at right) continues that "For purposes of comparison, the technological origins of the more recent computer revolution also bear a brief mention. Obviously, the invention of the transistor and the development of the mainframe computer were precursors of the technological advances that contributed to the current productivity boom. However, the real drivers of the productivity gains in the 1990s were the related high-tech innovations of the 1970s and 1980s, including the personal computer, fiber optics, wireless communications, and the Internet."

He added that "Many of the recent technological innovations have significantly altered how firms interact with their customers, in ways that have raised the productivity of the economy. In the retail sector, the Internet stores made popular by have been adopted by nearly all large retail chains; in banking, it is now routine for customers to pay bills online; and for airlines, Internet reservations and e-tickets are the norm. Moreover, throughout the goods economy, from manufacturing to retailing, innovations in inventory management practices made possible by new technologies have substantially reduced costs."

Ferguson has spoken on past occasions about the technology and productivity. See, for example, speech of October 24, 2002, and story titled "FRB Vice Chairman Addresses Impact of Computer and Software Technology on Productivity Gains" in TLJ Daily E-Mail Alert No. 535, October 25, 2002. See also, speech of April 5, 2003, and story titled "FRB Vice Chairman Ferguson Addresses Business Method Patents" in TLJ Daily E-Mail Alert No. 639, April 8, 2003.

FRB Chairman Alan Greenspan also gave a speech on productivity gains on October 23, 2002. See also, story in TLJ Daily E-Mail Alert No. 534, October 24, 2002.

And, of course, Federal Reserve economists have been studying this subject. See, for example, article [30 pages in PDF] titled "Information Technology and Productivity: Where Are We Now and Where Are We Going?" by Stephen Oliner and Daniel Sichel, also published in the Federal Reserve Bank of Atlanta Economic Review, Third Quarter 2002, Volume 87, Part 3, at pages 15-44.

Washington Tech Calendar
New items are highlighted in red.
Tuesday, January 6

The House is in adjournment. (It will convene on January 20, 2004.)

The Senate is in adjournment. (It will convene on January 20, 2004.)

The Supreme Court is in recess. (It will return on January 12, 2004.)

12:15 PM. The Federal Communications Bar Association's (FCBA) Mass Media Practice Committee will hold a brown bag lunch titled "Meet the Trade Press". The speakers will be Bill McConnell (Broadcasting and Cable), Brooks Boliek (Hollywood Reporter), Mike Feazel (Communications Daily), Ted Hearn (Multichannel News), Susan Crabtree (Variety), and Leslie Stimson (Radio World). Location: 8th Floor Conference Room, Dow Lohnes & Albertson, 1200 New Hampshire Ave., NW.

Deadline to submit reply 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 See, notice in the Federal Register, September 8, 2003, Vol. 68, No. 173, at Pages 52879 - 52889.

Wednesday, January 7

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Webmethods v. iWork Software, No. 03-1410. This is a patent infringement case brought by iWork Software in the U.S. District Court (NDIll). Webmethods moved to intervene pursuant to Rule 24, Federal Rules of Civil Procedure, but the District Court denied the motion. Location: Courtroom 402, 717 Madison Place, NW.

4:00 - 5:30 PM. Sydney Key (Federal Reserve System) will discuss his new book titled The Doha Round and Financial Services Negotiations. Bernard Hoekman (World Bank), Peter Wallison (AEI), and Claude Barfield (AEI) will then discuss the book. See, notice. Location: American Enterprise Institute (AEI), Twelfth floor, 1150 17th St., NW.

Thursday, January 8

11:00 AM - 1:00 PM. The American Enterprise Institute (AEI) will host a pair of panel discussions titled "Expensing Employee Stock Options Looks Like a Major Mistake". The speakers will include Kevin Hassett (AEI), Charles Calomiris (Columbia University), James Glassman (AEI), Peter Wallison (AEI), Paul Atkins (SEC), and George Benston (Emory University). See, notice. Location: AEI, Twelfth floor, 1150 17th St., NW.

Friday, January 9

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Fujitsu Compound Semiconductor v. U.S., No. 03-1293. Location: Courtroom 201, 717 Madison Place, NW.

12:15 PM. The Federal Communications Bar Association's (FCBA) Wireless Committee will host a luncheon. Mark Rubin (Western Wireless) and Marie Gillory (National Telephone Cooperative Association) will speak on universal service and the distribution of funding in rural areas. The price to attend is $15. RSVP to Wendy Parish at by 5:00 PM on Wednesday, January 7. For more information, contact Laura Phillips at 202 842-8891 or Location: Sidley Austin, 1501 K Street, NW, 6th Floor.

EXTENDED TO JANUARY 23. Deadline to submit comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking [35 pages in PDF] regarding unlicensed devices. See, notice in the Federal Register, December 10, 2003, Vol. 68, No. 237, at Pages 68823 - 68831. The FCC adopted this NPRM on September 10, 2003. See, FCC release [PDF]. The FCC released the NPRM [35 pages in PDF] on September 17, 2003. This NPRM is FCC 03-223 in ET Docket No. 03-201. See also, stories titled "FCC Announces NPRM Regarding Unlicensed Devices" in TLJ Daily E-Mail Alert No. 739, September 15, 2003, and "FCC Announces Deadlines for Comments on Unlicensed Devices NPRM" in TLJ Daily E-Mail Alert No. 800, December 16, 2003.

Monday, January 12

The Supreme Court will return from the recess that it began on December 15, 2003.

The Supreme Court will hear oral argument in Nixon v. Missouri Municipal League, and related petitions, regarding 47 U.S.C. § 253(a) and state statutes that prohibit political subdivisions from offering telecommunications services. See, story titled "Supreme Court Grants Certiorari in Nixon v. Missouri Municipal League" in TLJ Daily E-Mail Alert No. 687, June 25, 2003, and "Briefs Filed With Supreme Court in Nixon v. Missouri Municipal League" in TLJ Daily E-Mail Alert No. 776, November 11, 2003. Location: 1 First St., NW.

Deadline to submit comments to the Department of Commerce's (DOC) Bureau of Industry and Security (BIS), which is also known as the Bureau of Export Administration (BXA), regarding its notice of proposed rulemaking (NPRM) regarding amending the Export Administration Regulations (EAR) to implement a revised version of the BIS's Simplified Network Application Processing (SNAP+) system. This proposed rule also would mandate use of SNAP+ for all filings of Export License applications (except Special Comprehensive Licenses), Reexport Authorization requests, Classification requests, Encryption Review requests, and License Exception AGR notifications, unless the BIS authorizes paper filing for a particular user or transaction. See, notice in the Federal Register, November 12, 2003, Vol. 68, No. 218, at Pages 64009-64023.

Tuesday, January 13

9:00 AM. The North American Numbering Council (NANC) will meet. See, notice in the Federal Register, December 2, 2003, Vol. 68, No. 231, at Page 67441. Location: FCC, 445 12th Street, SW, Room TW-C305.

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in Carol De La Hunt v. FCC, No. 03-1029. Judges Edwards, Roberts and Williams will preside. Location: 333 Constitution Ave. NW.

3:00 - 6:00 PM. The National Infrastructure Advisory Council (NIAC) will meet. The NIAC advises the President on the security of information systems for critical infrastructure supporting other sectors of the economy, including banking and finance, transportation, energy, manufacturing, and emergency government services. For more information, contact Nancy Wong at 202 482-7488. See, notice in the Federal Register, December 24, 2003, Vol. 68, No. 247, at Pages 74624 - 74625. Location: Room 207, Washington Convention Center, 801 Mount Vernon Place, NW.

6:00 - 8:15 PM. The Federal Communications Bar Association (FCBA) will host a Continuing Legal Education (CLE) program titled "FCC Equipment Regulation". The speakers will be Henry Goldberg (Goldberg Godles), Mitchell Lazarus (Fletcher Heald & Hildreth), Richard Fabina (FCC's Office of Engineering and Technology), Cathy Zima (FCC's Wireline Competition Bureau), and Brian Butler (FCC's Enforcement Bureau). The prices to attend range from $50 to $125. For more information, contact Mitchell Lazarus at 703 812-0440 or See, notice. Location: Skadden Arps, 700 14th Street, NW, 11th Floor.

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 - 2004 David Carney, dba Tech Law Journal. All rights reserved.