5/25. Federal Communications Commission (FCC) Commissioner Jonathan Adelstein gave a speech [3 pages in PDF] at an event titled "Wireless Internet Service Provider Forum" held at the South Dakota School of Mines and Technology in Rapid City, South Dakota. He gave a quick overview of the main FCC proceedings pertaining to use of spectrum for wireless internet service. FCC Chairman Michael Powell gave a speech [4 pages in PDF] at the FCC's Wireless Broadband Forum on May 19 at which he reviewed various FCC spectrum related proceedings.

Adelstein (at right) said that "I am a big believer in the power of broadband. It is crucial to the economic development of our region. Broadband encourages the freedom of ideas, bridges distances, and brings people together. And at the FCC, our responsibility is to encourage broadband deployment across the country through new technologies, innovation, and investment."

"We need to find a balance in spectrum policy that recognizes the value in unlicensed and licensed services; large and small license areas; and different block sizes of spectrum", said Adelstein. He added that "We need to look at power levels and spectrum band plans and other ideas to see if there are opportunities to better enable carriers to expand their deployments and provide even more advanced services to rural America."

Powell said that "The great regulatory difficulty over the past one hundred years is because we have always had just one wire to the home. And because of that one wire you had enormous difficulties of monopoly control, bottleneck facilities, the pricing of those facilities, and how to get that one wire to every home in the Unites States."

"We have a historic opportunity here not to repeat that world." He added that there are already two broadband competitors, cable and DSL, but "the Holy Grail is when you get to three. Magical things happen in competitive markets when there are three."

Powell continued that "The FCC has recognized for years now that spectrum is vital to realizing this vision and that it had to have a bolder more enlightened national spectrum policy. From day one, we have been working hard to change the traditional ``command and control´´ approach that does not respect innovation and the need to move spectrum to its highest and best uses. We have been working hard to provide a spectrum policy that is much more facilitating of more platforms, more broadband platforms, more innovation, more choice and more flexibility."

He concluded, is that "our view is that more spectrum, more flexibility and more innovation will equal more broadband, and a brighter information landscape, and that’s the core of our policy."

Powell and Adelstein discussed several FCC proceedings, including those pertaining to secondary markets for spectrum, cognitive radios, use by unlicensed devices of TV spectrum, service rules for the 1710-1755 and 2110-2155 MHz bands, and rules for the 70, 80 & 90 GHz bands.

Secondary Markets for Spectrum. Adelstein stated that "We have to be more creative with a term I have coined ``spectrum facilitation.´´ That means stripping away barriers, regulatory or economic, to get spectrum into the hands of operators serving consumers at the most local levels. That is why I supported new guidelines to facilitate a more robust secondary market. We removed significant obstacles and provided a framework for allowing licensees to lease spectrum more easily."

Powell stated that "We have promoted the use of secondary markets for people that have more commercial flexibility in obtaining spectrum and allocating spectrum. Further, our spectrum leasing initiative will make spectrum more easily accessible to wireless operators interested in serving niche markets."

See, Report and Order and Further Notice of Proposed Rulemaking [198 pages in PDF] in proceeding titled "In the Matter of Promoting Efficient Use of Spectrum Through Elimination of Barriers to the Development of Secondary Markets". This item is FCC 03-113 in WT Docket No. 00-230.

See also, story titled "FCC Adopts Order Allowing Some Secondary Leasing of Spectrum" in TLJ Daily E-Mail Alert No. 663, May 16, 2003; and 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.

Cognitive Radios. Adelstein stated that "We also initiated a rulemaking on cognitive radios -- smart radios that can literally leapfrog the technical and legal problems that currently hamper many of today’s spectrum access opportunities. I was particularly pleased with our proposal in that item to allow higher power operation for unlicensed devices operating in rural and other areas of low spectrum use."

Powell stated that "We’re working very aggressively on new technologies like smart radio that will provide really new and creative technological solutions to spectrum scarcity and can open up more possibilities. We're working to open the door for these technologies so as not to shut out any of their tremendous potential."

See, Notice of Proposed Rule Making and Order [53 pages in PDF] in its proceeding titled "In the Matter of Facilitating Opportunities for Flexible, Efficient, and Reliable Spectrum Use Employing Cognitive Radio Technologies". This is FCC 03-322 in ET Docket No. 03-108. See also, story titled "FCC Releases Cognitive Radio Technology NPRM" in TLJ Daily E-Mail Alert No. 808, December 31, 2003.

Unused TV Spectrum. Adelstein stated that "I have worked with the Chairman to identify new spectrum for unlicensed wireless ISPs. And now we're even thinking about allowing operations in unused television spectrum bands."

See, Notice of Proposed Rulemaking [38 pages in PDF] in the proceeding is titled "In the Matter of Unlicensed Operation in the TV Broadcast Bands Additional Spectrum for Unlicensed Devices Below 900 MHz and in the 3 GHz Band". This NPRM is FCC 04-113 in ET Docket Nos. 04-186 and No. 02-380. See also, story titled "FCC Adopts NPRM Regarding Unlicensed Use of Broadcast TV Spectrum" in TLJ Daily E-Mail Alert No. 898, May 14, 2004; and story titled "FCC Releases NPRM Regarding Unlicensed Use of TV Spectrum" in TLJ Daily E-Mail Alert No. 905, May 26, 2004.

Service Rules for the 1710-1755 and 2110-2155 MHz Bands. Adelstein stated that "the FCC continues to take steps to speed deployment of licensed wireless broadband services. We recently adopted service and technical rules for 90 MHz of new spectrum, which many expect will be the future home for third generation or 3G mobile wireless systems. In that proceeding, I pushed for an extra group of smaller license areas to make it easier for companies in South Dakota and other rural states to get licenses that cover their local markets. So instead of there being only six licenses for the entire country for one of the blocks of spectrum, there are now three licenses for South Dakota alone -- for Rapid City, Aberdeen, and Sioux Falls. This should greatly improve access by those providers who want to serve local areas, particularly community-based providers."

Powell stated that "Just last year the Commission allocated an additional ninety megahertz of spectrum that can be used for advanced wireless services. The flexible rules for this band were established in October and we hope to auction the spectrum by sometime next year."

See, Report and Order [83 pages in PDF] in the proceeding titled "In the Matter of Service Rules for Advanced Wireless Services in the 1.7 GHz and 2.1 GHz Bands". This item is FCC 03-251, in WT Docket No. 02-353. See also, story titled "FCC Announces Service Rules for 3G Spectrum" in TLJ Daily E-Mail Alert No. 761, October 20, 2003.

70, 80 & 90 GHz Bands. Adelstein said that "last year, I pushed for special rules for the spectrum in the 70/80/90 GHz range that can provide for fiber-like first and last mile connections. Because of the unique characteristics of this spectrum, we decided not to auction it, which will make it a whole lot easier for licensees, particularly those in rural America, to get access to the spectrum."

Powell stated that the FCC "has established an innovative framework for allowing commercial use of spectrum in those bands. These bands have been opened up to allow for the use of more innovative technologies that will lead to new products and services being available, such as high-speed, point-to-point wireless LANS and offerings that will increase broadband services."

See, Report and Order [66 pages in PDF] in proceeding titled "In the Matter of Allocations and Service Rules for the 71-76 GHz, 81-86 GHz and 92-95 GHz Bands". This item is FCC 03-248, in WT Docket No. 02-146. See also, story titled "FCC Announces Rules for Licensing 71-76 GHz, 81-86 GHz, and 92-95 GHz Bands" in TLJ Daily E-Mail Alert No. 761, October 20, 2003.

5/21. The U.S. Court of Appeals (1stCir) issued its opinion in Invessys, Inc. v. McGraw-Hill, a case involving the attorneys fees shifting provisions of the Copyright Act, codified at 17 U.S.C. § 505.

McGraw-Hill negotiated a contract with Invessys, Inc., and its sole shareholder and employee, Peter Hodges, for the sale of certain software and a software related business. Initially, the parties negotiated for the sale of a company named Micropal Accounting Portfolio Services, Inc. (MAPSI). MAPSI's primary business was the licensing and support of a program named MaPS. Hodges then asked that earlier DOS versions of the program be included in the transaction. McGraw-Hill agreed. He also asked that an unrelated program named AIM be included. The contract included the AIM program. After execution of the contract, Hodges asked for transfer of the AIM program. McGraw-Hill refused, asserting the its inclusion in the contract was a scrivener's error.

Hodges and Invessys filed a complaint in U.S. District Court (DMass) against McGraw-Hill alleging breach of contract, fraud, conversion, and other state law claims. The complaint also included a copyright infringement claim. The jury found that the inclusion of the AIM program was a scrivener's error. Thus, McGraw-Hill prevailed. The Court then awarded McGraw-Hill $200,000 in attorney's fees and $28,583.78 in costs, pursuant to Section 505.

Had Hodges plead only state law claims, McGraw-Hill would not have been able to recover its attorneys fees and costs.

Section 505 of the Copyright Act provides, in full, that "In any civil action under this title, the court in its discretion may allow the recovery of full costs by or against any party other than the United States or an officer thereof. Except as otherwise provided by this title, the court may also award a reasonable attorney's fee to the prevailing party as part of the costs."

The Appeals Court affirmed the District Court. Notwithstanding the circumstance that the case and trial primarily revolved around the state law contract issue of scrivener's error, and notwithstanding the circumstance that copyright infringement was only one of many counts in the complaint, the Appeals Court held that the plaintiffs could rely upon Section 505 to recover all of their attorneys fees and costs.

This case is Invessys, Inc. and Peter Hodges v. McGraw-Hill Companies, Ltd., et al., U.S. Court of Appeals for the 1st Circuit, App. Ct. No. 03-1954, an appeal from the U.S. District Court for District of Massachusetts, Judge George O'Toole presiding.

5/25. The Electronic Privacy Information Center (EPIC), and other groups, filed a comment [22 pages in PDF] with the Federal Deposit Insurance Corporation (FDIC) and other financial regulatory agencies in their rulemaking proceeding to implement Section 411 of the the Fair and Accurate Credit Transactions Act of 2003 (FACT Act), which pertains to medical information.

The FACT Act was HR 2622. It was enacted by the Congress in 2003, and signed by the President on December 4, 2003. It became Public Law No. 108-159. See also, President Bush's signing speech and White House press office summary.

Section 411 of the Act pertains to "Protection of Medical Information in the Financial System". It provides that "A consumer reporting agency shall not furnish for employment purposes, or in connection with a credit or insurance transaction, a consumer report that contains medical information about a consumer, unless" certain conditions are met.

It also provides that "a creditor shall not obtain or use medical information pertaining to a consumer in connection with any determination of the consumer's eligibility, or continued eligibility, for credit", except as provided by regulation. The Act also restricts redisclosure and sharing of medical information.

The FDIC and other financial regulatory agencies published a notice in the Federal Register that describes, and sets a comment deadline for, the agencies' proposed rules implementing Section 411. See, Federal Register, April 28, 2004, Vol. 69, No. 82, at Pages 23379 - 23407.

The EPIC wrote in response that "The Agencies should also be aware that provisions (no matter how limited) that allow creditors to obtain and use medical information have the potential to create a new form of consumer reporting that focuses exclusively on health information. The justification of collection health information on all consumers would be that the information can be used in some instances, as the final regulation will demonstrate. Those with an incentive to collect health information might well be beyond the scope of existing regulation and may be able to use the information for other purposes. It would be an extremely unfortunate result if a provision intended to allow extremely narrow use of medical information ended up creating a new, massively invasive consumer reporting activity for that information. The Agencies should be aware of this possibility, and they should take steps wherever possible to prevent or discourage creditors from obtaining medical information from new or unregulated sources."

The deadline for comments is May 28, 2004. This is the FDIC's RIN 3064-AC8.

The House is in recess. The House will next convene at 2:00 PM on Tuesday, June 1. See, Republican Whip Notice.

The Senate is in recess. The Senate will next convene at 10:00 AM on June 1. At 2:15 PM, the Senate will resume consideration of the motion to proceed to S 2062, the "Class Action Fairness Act of 2004".

The Supreme Court is in recess. It will return on June 1.

Deadline to submit comments to the Federal Communications Commission (FCC) in response to its notice of proposed rulemaking (NPRM) [97 pages in PDF] regarding issues relating to services and applications utilizing internet protocol (IP). This NPRM is FCC 04-28 in WC Docket No. 04-36. See, notice in the Federal Register, March 29, 2004, Vol. 69, No. 60, at Pages 16193 - 16202. See also, story titled "FCC Adopts NPRM Regarding Regulation of Internet Protocol Services" in TLJ Daily E-Mail Alert No. 837, February 16, 2004.

Memorial Day. The FCC and other federal agencies will be closed. There will be no issue of the TLJ Daily E-Mail Alert.

The House and Senate will return from the Memorial Day recess.

Day one of a four day conference and expo hosted by the Wireless Communications Association International (WCA) titled "WCA 2004". See, agenda. Location: Marriott Wardman Park Hotel, 660 Woodley Park Road, NW.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its notice of proposed rulemaking (NPRM) regarding broadband over powerline systems. The FCC adopted this NPRM on February 12, 2004. See, story titled "FCC Adopts Broadband Over Powerline NPRM" in TLJ Daily E-Mail Alert No. 836, February 13, 2004. The FCC released the text of this NPRM on February 23, 2004. This NPRM is FCC 04-29 in ET Docket Nos. 03-104 and 04-37. See, notice in the Federal Register, March 17, 2004, Vol. 69, No. 52, at Pages 12612-12618.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rule Making and Order [53 pages in PDF] regarding cognitive radio technologies and software defined radios. This item is FCC 03-322 in ET Docket No. 03-108 and ET Docket No. 00-47. See, notice in the Federal Register, February 17, 2004, Vol. 69, No. 31, at Pages 7397 - 7411, and story titled "FCC Releases Cognitive Radio Technology NPRM" in TLJ Daily E-Mail Alert No. 808, December 31, 2003.

Deadline to submit comments to the Federal Trade Commission (FTC) in response to its notice of proposed rulemaking (NPRM) regarding amending the Telemarketing Sales Rule (TSR) to revise the fees charged to entities accessing the National Do Not Call Registry. See, notice in the Federal Register, April 30, 2004, Vol. 69, No. 84, at Pages 23701 - 23705.

9:30 - 10:30 AM. The Federal Communications Commission's (FCC) Media Security and Reliability Council will meet. See, FCC notice [PDF] of May 26, 2004, and notice in the Federal Register, April 30, 2004, Vol. 69, No. 84, at Page 23758. Location: FCC, Room TW-C305, 445 12th St., SW.

9:30 AM - 4:30 PM. The Judges Panel of the Malcolm Baldrige National Quality Award will hold a closed meeting. See, notice in the Federal Register, May 4, 2004, Vol. 69, No. 86, at Page 24571. Location: National Institute of Standards and Technology, Building 222, Red Training Room, Gaithersburg, MD.

10:00 AM. The House Commerce Committee's Subcommittee on Telecommunications and the Internet will hold a hearing titled "Advancing the DTV Transition: An Examination of the FCC Media Bureau Proposal". The hearing will be webcast. Press contact: Jon Tripp (Barton) at 202-225-5735 or Sean Bonyun (Upton) at 202-225-3761. Location: Room 2123, Rayburn Building.

1:30 PM. The House Government Reform Committee's Subcommittee on Technology, Information Policy, Intergovernmental Relations and the Census will hold an oversight hearing titled "Who Might be Lurking at Your Cyber Front Door? Is Your System Really Secure? Strategies and Technologies to Prevent, Detect and Respond to the Growing Threat of Network Vulnerabilities." Location: Room 2154, Rayburn Building.

Day two of a four day conference and expo hosted by the Wireless Communications Association International (WCA) titled "WCA 2004". At 8:30 - 10:30, AM Federal Communications Commission (FCC) Commissioners Kathleen Abernathy and Jonathan Adelstein, and NTIA acting Director Michael Gallagher are scheduled to speak on a panel titled "VoIP As A Frontier For Wireless Growth". At 11:30 AM - 12:45 PM, Ed Thomas (Chief of the FCC's Office of Engineering and Technology), Tom Hazlett (a former Chief Economist of the FCC), and others are scheduled to speak on "The FCC's Interference Temperature Plan: Threat or Opportunity?" at 10:45 AM. See, agenda. Location: Marriott Wardman Park Hotel, 660 Woodley Park Road, NW.

8:30 AM - 3:00 PM. The National Institute of Standards and Technology's (NIST) Malcolm Baldrige National Quality Award Board of Overseers will hold a public meeting. See, notice in the Federal Register, May 14, 2004, Vol. 69, No. 94, Page 26808 - 26809.

9:00 AM - 12:30 PM. The National Institute of Standards and Technology's (NIST) will hold a closed meeting to provide a briefing on Special Publication 800-37, titled "Guide for the Security Certification and Accreditation of Federal Information Systems". For more information, contact Angela Ellis at 301 975-3881 or angela.ellis@nist.gov. Location: Green Auditorium, NIST Main Campus, Gaithersburg, MD.

9:30 AM. The House Commerce Committee will meet to markup HR 3266, the "Faster and Smarter Funding for First Responders Act of 2003" and HR __, the "Satellite Home Viewer Extension and Reauthorization Act". The meeting will be webcast. Press contact: Larry Neal or Jon Tripp at 202 225-5735. Location: Room 2123, Rayburn Building.

12:00 NOON - 1:30 PM. The DC Bar Association's Intellectual Property Law Section and Trade Secrets Committee will host a program titled "Licensing Trade Secrets And Know-How: Realizing Value From IP's Forgotten Species". The speaker will be Ronald Bleeker of the law firm of Finnegan Henderson. Prices vary. See, notice. For more information, contact 202 626-3463. Location: D.C. Bar Conference Center, B-1 Level, 1250 H Street, NW.

6:00 - 8:00 PM. The Federal Communications Bar Association (FCBA) will host an event titled "70th Anniversary of the Communications Act". See, registration form [PDF]. Prices vary. Location: Washington Hilton, 1919 Connecticut Ave., NW.

Day three of a four day conference and expo hosted by the Wireless Communications Association International (WCA) titled "WCA 2004". At 8:30 AM, there will be a panel discussion titled "Unlocking MDS & ITFS Spectrum Values With Regulatory Reform". The speakers will be Paul Sinderbrand (Wilkinson Barker Knauer), Bryan Tramont (FCC Chief of Staff), a representative of the FCC Wireless Telecommunications Bureau, Patrick Gossman (Chairman of the National ITFS Association), and Todd Rowley (Sprint). At 9:30 AM, there will be a panel discussion titled "FCC View From the Eighth Floor". The speakers will be Barry Ohlson (Senior Legal Advisor to FCC Commissioner Jonathan Adelstein), Samuel Feder (Legal Advisor to FCC Commissioner Kevin Martin), Paul Margie (Legal Advisor to FCC Commissioner Michael Copps), Lauren Van Wazer (Chairman of the FCC Broadband Wireless Task Force), and Mary Greczyn (Freedom Technologies). See, agenda. Location: Marriott Wardman Park Hotel, 660 Woodley Park Road, NW.

Deadline to submit comments to the Federal Communications Commission (FCC) in response to its notice of propose rulemaking (NPRM) regarding imposing mandatory minimum Customer Account Record Exchange (CARE) obligations on all local and interexchange carriers. This item is FCC 04-50 in CG Docket No. 02-386. See, notice in the Federal Register, April 19, 2004, Vol. 69, No. 75, at Pages 20845 - 20851.

5/21. The U.S. Court of Appeals (DCCir) issued its opinion [14 pages PDF] in Kaempe v. Myers, a case involving claims of conversion of a patent, and malpractice in processing a patent application. The Appeals Court affirmed the District Court's judgment for the attorney.

George Myers provided legal services to Staffan Kaempe in connection with processing a patent application. Subsequently, Kaempe filed a complaint in U.S. District Court (DC) against Myers and his current and former law firms, alleging conversion of the patent by assignment, and legal malpractice. The District Court ruled for Myers on both counts. The Court of Appeals affirmed.

While the District Court had held that an action for conversion of patent rights is not recognized under District of Columbia law, the Appeals Court held that it is unclear whether DC law recognizes such a claim. It held that even if the claim is recognized, the facts of the case are that there was no assignment, and hence, no conversion. The Appeals Court also affirmed the District Court's summary judgment for Myers on the malpractice claim because Kaempe failed to provide expert testimony in support of his malpractice action.

This case is Staffan Kaempe v. George Myers, et al., U.S. Court of Appeals for the District of Columbia, App. Ct. No. 03-7037, an appeal from the U.S. District Court for the District of Columbia, D.C. No. 01cv02636.

5/26. Comcast announced in a release "preliminary results from the company's 2004 annual meeting of shareholders in which all board members were re-elected overwhelmingly, each receiving more than 92% of the vote; all company-sponsored proposals were adopted overwhelmingly, with more than 96% of the vote; and all shareholder proposals were defeated". Comcast also announced that P/CEO Brian Roberts "has become chairman of the company's board of directors, following C. Michael Armstrong's election to retire as non-executive chairman".

5/24. Verizon announced that Tom Tauke has been named EVP -- Public Affairs and Communications. He will "oversee all internal and external communications, reputation management, philanthropy and issues management for Verizon, and will serve as a member of the company's Corporate Leadership Council". He had already been responsible for policy advocacy at the local, state, federal and international levels. Tauke represented an Iowa Congressional district from 1979 through 1991. He was a member of the House Commerce Committee and its Telecommunications Subcommittee.

5/24. The Recording Industry Association of America (RIAA) announced that it filed lawsuits against "493 additional illegal file sharers" in various U.S. District Courts, alleging copyright infringement. Cary Sherman, President of the RIAA, stated that "Our continuing objective is to send a message of deterrence, protect the rights of property owners, and foster environment where the legitimate marketplace, both online and at retail, can flourish". See, RIAA release.

5/26. The Financial and Banking Information Infrastructure Committee (FBIIC) and the Financial Services Sector Coordinating Council (FSSCC) released a report [8 pages in PDF] on the fraudulent practice of phishing. The phishing perpetrator sends fraudulent e-mail to consumers that falsely states that is from a legitimate company, financial institution or government agency, and directs consumers to visit a spoofed website, which in turn, requests consumers to enter personal information, which is then used for identity theft. See, Treasury Department release.