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June 30, 2004, 9:00 AM ET, Alert No. 929.
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COPA Sponsor Addresses Supreme Court Decision

6/29. Rep. Mike Oxley (R-OH) released a statement regarding the Supreme Court's June 29, 2004 opinion [41 pages in PDF] in Ashcroft v. ACLU, in which the Court affirmed the issuance of a preliminary injunction of the Child Online Protection Act (COPA). Rep. Oxley, who sponsored the bill in 1998, said that he "can't forecast what the next step after COPA might be, but the feeling that we have to clean up this dirt is going to continue".

The COPA bans sending to minors over the web material that is harmful to minors. The Supreme Court held that the COPA is a content based restriction of speech, and that the government has not met is burden of showing that the COPA is the least restrictive alternative available to accomplish the goals of the Congress in protecting minors from web based material that is harmful to minors.

The bill was passed as part of the Omnibus Appropriations Act for FY 1999. President Clinton signed this bill on October 21, 1998. However, the final language was that of HR 3783 (105th Congress), sponsored by Rep. Oxley. See, story titled "Internet and Tech Bills Become Law", October 22, 1998.

The ACLU and other interest groups promptly filed a complaint in U.S. District Court (EDPenn) challenging the constitutionality of the COPA. See, TLJ story titled "ACLU Files Suit Challenging the Child Online Protection Act", October 23, 1998.

Rep. Oxley is now the Chairman of the House Financial Services Committee (HFSC), and spends less time on internet related matters. The COPA amended the Communications Act. It is now codified at 47 U.S.C. 231. Hence, it lies within the jurisdiction of the House Commerce Committee.

He had this to say about the Supreme Court's opinion. "The fight for COPA and our children is not over. I will contact the Department of Justice and ask it to mount an aggressive case to show the court that there is technology to make COPA work as Congress intended."

He continued that "I don't think that pormographers have any more right to shove their smut into the faces of children in cyberspace than they do at the corner newsstand. Larry Flynt can't set up in front of a news store handing out free copies of Hustler to minors, and the operators of pormographic websites shouldn't be allowed to entice a kid with a teaser page. I'm tired that the flesh merchants keep hiding behind this fig leaf of artistic expression. What they peddle is porm, plain and simple." (Editor's Note: TLJ intentionally misspells words that cause the mail servers of some subscribers to block delivery of the TLJ Daily E-Mail Alert.)

Rep. Mike OxleyRep. Oxley (at right) said that "We are seeing our society rebel against indecency in the media. Families are fed up with being saturated by images that are bad for their kids and corrosive for our culture. I can't forecast what the next step after COPA might be, but the feeling that we have to clean up this dirt is going to continue."

He concluded that "I think that if this law had not been held up by the American Civil Liberties Union for six years now, we could already have had an unobtrusive system in place protecting our children without censoring the Internet. Parents wouldn't be afraid to leave their kids alone in the room with the computer on. The pervasiveness of pormography on the Internet is going to be a barrier to its development. Congress worked very hard on COPA to strike a reasonable balance between protecting our children and not infringing on freedom of expression. The Supreme Court found this so important that it heard arguments on the case not once, but twice, and it is now sending the case back to a lower court for a third time."

Mark Corallo, Director of Public Affairs for the Department of Justice (DOJ), stated in a release that "Our society has reached a broad consensus that child obscenity is harmful to our youngest generation and must be stopped. Congress has repeatedly attempted to address this serious need and the Court yet again opposed these common-sense measures to protect America's children. The Department will continue to work to defend children from the dangerous predators who lurk in the dark shadows of the World Wide Web."

Opponents of the COPA are pleased with the Supreme Court decision. John Morris said in a release that "Congress should stop wasting government time and money on unconstitutional censorship laws". Morris, who is unlikely to be invited to testify before the HFSC, is a Staff Counsel with the Center for Democracy and Technology (CDT),

Ann Beeson, who argued the case for the American Civil Liberties Union (ACLU), was more diplomatic. She stated in a release that "Today's ruling from the Court demonstrates that there are many less restrictive ways to protect children without sacrificing communication intended for adults". She added that "By preventing Attorney General Ashcroft from enforcing this questionable federal law, the Court has made it safe for artists, sex educators, and web publishers to communicate with adults about sexuality without risking jail time."

She accused John Ashcroft, the Attorney General, of "wasting taxpayer dollars in defending this unconstitutional law".

This was the second time that the Supreme Court issued an opinion in this case. On May 13, 2002, the Supreme Court issued its opinion [54 pages in PDF] upholding the constitutionality of the community standards component of the COPA.

Then, on March 6, 2003 the U.S. Court of Appeals (3rdCir) issued its opinion [59 pages in PDF] holding the COPA unconstitutional on First Amendment grounds.

On October 14, 2003, the Supreme Court granted certiorari to review this opinion. See also, story titled "Supreme Court Grants Certiorari in COPA Case" in TLJ Daily E-Mail Alert No. 758, October 15, 2003.

On December 16, 2003, the DOJ's Office of the Solicitor General (OSG) filed its brief on the merits arguing that the COPA does not violate the First Amendment. See, story titled "Solicitor General Files Brief in COPA Case" in TLJ Daily E-Mail Alert No. 805, December 23, 2003.

See also, story titled "ACLU Files Suit Challenging the Child Online Protection Act", October 23, 1998. This article contains a collection of hyperlinks to earlier TLJ stories regarding the drafting, debate, and enactment of the COPA.

NTIA Releases Reports on Spectrum Management

6/24. The Department of Commerce's (DOC) National Telecommunications and Information Administration (NTIA) released two reports pertaining to government management of the use of spectrum. See, NTIA release.

The first report is titled "Spectrum Policy for the 21st Century -- The President's Spectrum Policy Initiative: Report 1". It is subtitled "Recommendations of the Federal Government Spectrum Task Force". It contains the views of the administration's task force.

The second report is titled "Spectrum Policy for the 21st Century -- The President's Spectrum Policy Initiative: Report 2". It is subtitled "Recommendations from State and Local Governments and Private Sector Responders".

The first report, which represents the administration's task force's views, contains numerous recommendations. These recommendations address actions to be taken by the NTIA and other government agencies. That is, this report addresses continued government control of, and management of, the use of spectrum resources. There are no recommendations in this report that users obtain rights in spectrum, or that markets for spectrum be developed.

The second report, which is based in part upon views of "the private sector developed through the public meetings and written comments submitted to the Department of Commerce", does reference limited rights and markets.

It recommends first that "The Administration should continue to encourage Congress to enact legislation that provides the FCC with permanent authority to conduct spectrum auctions for licenses and to collect fees for spectrum use. This proposed legislation would support incentives for efficient use of the spectrum. The Administration should also continue to support legislation that would establish a spectrum relocation fund that would streamline the process for reimbursing government spectrum users to facilitate their relocation to comparable spectrum." This is recommendation 5(a).

This is a reference to HR 1320. The House passed its version of HR 1320 on June 11, 2003. See, stories titled "House Subcommittee Holds Hearing On Commercial Spectrum Enhancement Act" in TLJ Daily E-Mail Alert No. 631, March 26, 2003; "House Subcommittee Approves Spectrum Relocation Fund Bill" in TLJ Daily E-Mail Alert No. 641, April 10, 2003; "House Commerce Committee Passes Spectrum Relocation Bill" in TLJ Daily E-Mail Alert No. 653, May 1, 2003; and "House Passes Commercial Spectrum Enhancement Act" in TLJ Daily E-Mail Alert No. 679, June 12, 2003. The Senate Commerce Committee passed its version of HR 1320 on June 26, 2003. However, the full Senate has yet to pass a bill. See, story titled "Senate Commerce Committee Approves Commercial Spectrum Enhancement Act" in TLJ Daily E-Mail Alert No. 689, June 27, 2003.

The second report continues that "Once enacted into law, the FCC and NTIA should use the statutory authorities described in (a) to develop increased economic incentives for efficient spectrum use.  In addition to market-based incentives, like auctions and lease fees, the FCC should consider expanding the application of secondary markets across services."

Finally, the second report recommends that "NTIA, in conjunction with the FCC should, through appropriate rulemaking processes, examine the possibility of modifying spectrum rights as a means to encourage the deployment of spectrally efficient technologies. These rulemakings should consider, among other things: (i) granting access to new bands of spectrum to users deploying demonstrably non-interfering technology; and (ii) limiting the interference protection afforded to incumbents using inefficient technologies."

The Federal Communications Commission (FCC) has already been moving towards the establishment of limited markets in certain contexts. For example, FCC Chairman Michael Powell formed a Spectrum Policy Task Force (SPTF) in June of 2002. See, story titled "Powell Creates Task Force to Conduct Spectrum Inquiry" in TLJ Daily E-Mail Alert No. 446, June 7, 2002.

The FCC announced the report of its SPTF on November 7, 2002. See, story titled "FCC Announces Report on Spectrum Policy" in TLJ Daily E-Mail Alert No. 545, November 8, 2002. The SPTF released its Report [73 pages in PDF] on November 15, 2002. One of the many topics addressed by the report is moving towards markets. The report recommends that "spectrum policy must evolve towards more flexible and market oriented regulatory models."

The FCC has also released papers on this subject, and conducted rule making proceedings on this subject.

FCC Chairman Michael Powell praised the NTIA reports in vague terms. He wrote in a statement [PDF] that "I applaud the Administration for undertaking a review of these timely spectrum issues. I look forward to analyzing the recommendations contained in these reports and working together with NTIA to improve spectrum management in the United States." He added that "At the FCC, we have worked hard over the last two years to identify and implement significant spectrum management reforms and to make our policies more flexible and market driven. Together we can craft spectrum policies that deliver wireless broadband for the American people."

Washington Tech Calendar
New items are highlighted in red.
Wednesday, June 30

The House and Senate will not meet the week of June 28 through July 5.

12:15 PM. The Federal Communications Bar Association's (FCBA) Mass Media Practice Committee will host a brown bag lunch. The speaker will be Ken Ferree, Chief of the Federal Communications Commission's (FCC) Media Bureau. Location: 8th Floor Conference Room, Dow Lohnes & Albertson, 1200 New Hampshire Ave., NW.

2:00 PM. The Japan International Transport Institute and the Ministry of Land, Infrastructure and Transport will host a conference titled "Aviation Security of Tomorrow". There will be a technology demonstration from 1:00 - 7:00 PM that will feature an IPv6-based secure peer-to-peer communication service platform, information secrecy management solutions using a multi-purpose smartcard, and radio frequency tags. The speakers will include Asa Hutchinson, Under Secretary for Border and Transportation Security at the U.S. Department of Homeland Security. Masayuki Nomura (NTT Communications Corporation) will give a technology demonstration. There will be a reception from 5:30 - 7:00 PM. See, notice and registration page. Registration is required by June 25. Location: Grand Hyatt Washington, 1000 H Street, NW.

Deadline to submit comments to the Financial Accounting Standards Board (FASB) regarding its document titled "Exposure Draft, Share-Based Payment, an Amendment of FASB Statements No. 123 and 95", in which it proposes to that companies must expense employee stock option plans.

Deadline to submit applications to the Department of Homeland Security (DHS) for grants for homeland security related information technology demonstration projects. See, DHS release.

The research and development tax credit provision of the Internal Revenue Code expires. Both the House and Senate bills to repeal the ETI tax regime would extend the R&D credit through December 31, 2005. The House has passed its bill, HR 4520, the "American Jobs Creation Act of 2004". The Senate has passed its bill, S 1637, the "Jumpstart Our Business Strength (JOBS) Act". However, the two bills have not been reconciled.

Thursday, July 1

10:30 AM. The Heritage Foundation will host a panel discussion titled "Homeland Security Office for Civil Rights and Civil Liberties: A One-Year Review". The speakers will be Daniel Sutherland (Department of Homeland Security), Daniel Edgar (ACLU), and Paul Rosenzweig (Heritage). See, notice. For more information, contact Clayton Callen at 202 608-6052. Location: Heritage, 214 Massachusetts Ave., NE.

Deadline to submit to the Copyright Office (CO) updated notices of intent to use the statutory licenses under 17 U.S.C. 112 and 114. On March 11, 2004, the CO published a notice in the Federal Register regarding its "interim regulations specifying notice and recordkeeping requirements for use of sound recordings under two statutory licenses under the Copyright Act." The CO further announced that "Electronic data format and delivery requirements for records of use as well as regulations governing prior records of use shall be announced in future Federal Register documents." The interim notice and recordkeeping regulations took effect on April 12, 2004. See, Federal Register, March 11, 2004, Vol. 69, No. 48, at Page 11515-11531.

Sunday, July 4

Independence Day.

Monday, July 5

The Federal Communications Commission (FCC) and other federal offices will be closed. See, Office of Personnel Management's (OPM) list of federal holidays.

Tuesday, July 6

The House will return from its Independence Day recess at 2:00 PM.

The Senate will return from its Independence Day recess. at 9:45 AM it will consider the nomination of Leon Holmes to be a U.S. District Judge for the Eastern District of Arkansas. It will then begin consideration of S 2062, the Class Action Fairness bill.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Sony Electronics v. Soundview Technologies. Location: Courtroom 402, 717 Madison Place, NW.

10:00 AM. The Senate Judiciary Committee will hold a hearing on judicial nominees. Press contact: Margarita Tapia (Hatch) at 202 224-5225 or David Carle (Leahy) at 202 224-4242. Location: Room 226, Dirksen Building.

10:00 AM. The House Ways and Means Committee will hold a hearing titled "Implementation of the United States-Morocco Free Trade Agreement". Location: Room 1100, Longworth Building.

12:15 - 1:45 PM. The New America Foundation (NAF) will host a brown bag lunch titled "Cyberterrorism: How Modern Terrorism Uses the Internet". The speakers be Gabriel Weimann (Haifa University) and James Fallows (Atlantic Monthly). RSVP to Jennifer Buntman at 202 986-4901 or Location: NAF, 1630 Connecticut Ave, NW, 7th Floor.

Thursday, July 8

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

9:30 AM. The Senate Judiciary Committee will hold an executive business meeting. Press contact: Margarita Tapia (Hatch) at 202 224-5225 or David Carle (Leahy) at 202 224-4242. Location: Room 226, Dirksen Building.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Business Objects v. MicroStrategy, No. 04-1009. Location: Courtroom 203, 717 Madison Place, NW.

The Department of Commerce's (DOC) Bureau of Industry and Security will hold a seminar titled "Essentials of Export Controls". The price to attend is $75. For more information, contact Yvette Springer at 202 482-6031. Location: Ronald Reagan Trade Center, Washington DC.

Deadline to submit comments to the Federal Communications Commission (FCC) in response to its notice of proposed rulemaking (NPRM) regarding a national one call notification system. The FCC adopted this NPRM on May 13, 2004, and released the text [34 pages in PDF] on May 14, 2004. See, story titled "FCC Adopts NPRM Regarding One Call Notification System" in TLJ Daily E-Mail Alert No. 899, May 17, 2004. This NPRM is FCC 04-111 in CC Docket No. 92-105. See, notice in the Federal Register, June 8, 2004, Vol. 69, No. 110, at Pages 31930 - 31939.

DC Circuit Denies Petition for Review in NASUCA v. FCC

6/29. The U.S. Court of Appeals (DCCir) issued its opinion [12 pages in PDF] in NASUCA v. FCC.

The National Association of State Utility Consumer Advocates (NASUCA) filed a petition for review of an order of the Federal Communications Commission (FCC) adjusting the manner in which local exchange carriers (LECs) may recover the fixed costs they incur in providing service to residential and single line business customers.

The NASUCA argued that the FCC order violated the universal service provisions of the Telecommunications Act of 1996, that it results in rates that are unjust and unreasonable, and it is arbitrary and capricious. The Appeals Court denied the petition.

This case is National Association of State Utility Consumer Advocates, petitioner v. FCC and USA, respondents, and BellSouth, et al., intervenors, App. Ct. No. 02-1261, a petition for review of a final order of the FCC.

More News

6/29. The U.S. Court of Appeals (6thCir) issued its opinion in AutoZone v. Tandy, a case involving claims of trademark infringement, tradename infringement, unfair competition, breach of contract, and trademark dilution. The Appeals Court affirmed the District Court's judgment for Tandy (Radio Shack). This case is AutoZone, Inc. and Speedbar, Inc. v. Tandy Corp., No. 01-6571, an appeal from the U.S. District Court for the Middle District of Tennessee at Nashville, D.C. No. 99-00884, Judge Thomas Wiseman presiding.

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