Tech Law Journal Daily E-Mail Alert
July 13, 2004, 9:00 AM ET, Alert No. 936.
Home Page | Calendar | Subscribe | Back Issues | Reference
9th Circuit Rules Federal Courts Lack Jurisdiction Over Suit by Homeowners Association Against a Condo Owner for Placement of Satellite Dish

7/12. The U.S. Court of Appeals (9thCir) issued its opinion [17 pages in PDF] in Opera Plaza v. Hoang, a case involving federal jurisdiction over disputes regarding the placement of satellite dishes. The Appeals Court affirmed the District Court's dismissal of a claim brought by a homeowners association seeking to enforce its dish policy.

The Opera Plaza Residential Parcel Homeowners Association (Opera Plaza) is a homeowners association that adopted a policy prohibiting the placement of satellite dishes in common areas of the condominium complex. Tuan and Betty Hoang own a condo within the premises of Opera Plaza. They installed a satellite dish on the exterior of their condo in a common area.

Opera Plaza filed complaint in U.S. District Court (NDCal) against the Hoang's in which they alleged three causes of action. First, they sought declaratory relief that the Opera Plaza satellite dish policy is valid. Second, they sought injunctive relief requiring the Hoangs to remove their dish. Third, they sought damages for breach of contract.

Diversity of citizenship is lacking. Thus, Opera Plaza asserted that there exists federal question jurisdiction. Specifically, it cited § 207 of the Telecommunications Act of 1996, which gave the Federal Communications Commission (FCC) authority to regulate over the air reception devices, including satellite dishes.

The District Court dismissed the complaint for lack of subject matter jurisdiction. This appeal followed. The Appeals Court affirmed.

The Congress enacted the Telecommunications Act of 1996 (Public Law No. 104-104) with language pertaining to over the air reception devices (OTARD). § 207 of the Act provides that "Within 180 days after the date of enactment of this Act, the Commission shall, pursuant to section 303 of the Communications Act of 1934, promulgate regulations to prohibit restrictions that impair a viewer's ability to receive video programming services through devices designed for over-the-air reception of television broadcast signals, multichannel multipoint distribution service, or direct broadcast satellite services." This section is codified at 47 U.S.C. § 303 notes.

In addition, § 205 of the Act amends 47 U.S.C. § 303 (which lists the powers of the Commission), to add a new subsection 303(v). It provides that the FCC shall "Have exclusive jurisdiction to regulate the provision of direct-to-home satellite services. As used in this subsection, the term ``direct-to-home satellite services´´ means the distribution or broadcasting of programming or services by satellite directly to the subscriber's premises without the use of ground receiving or distribution equipment, except at the subscriber's premises or in the uplink process to the satellite."

The FCC promptly promulgated, and has since amended, its implementing regulation. It is codified at 47 C.F.R. § 1.4000. The FCC also maintains a shorter summary in its web site titled "Fact Sheet: Over-the-Air Reception Devices Rule".

The Appeals Court held that "§ 207 of the Telecommunications Act of 1996 ... does not confer jurisdiction on the federal courts to hear a routine suit by a condominium homeowners association to enforce its rules against the placement of a satellite television dish in common areas."

It further held that "no sufficient federal question exists as to any of Opera Plaza's three causes of action, and as a result affirm the district court’s conclusion that Opera Plaza’s complaint did not raise substantial questions of federal law sufficient to confer federal jurisdiction."

The Court reasoned that neither the statute nor the FCC's implementing regulation creates a private right of action. Moreover, all three of Opera Plaza's claims are state law claims. § 207 of the Act, and the FCC's regulation, are not raised by the complaint. Rather, they might be asserted by the Hoang's as defenses; but, this is insufficient to provide federal question jurisdiction.

The Court also wrote that Opera Plaza's remedy is to bring suit in state court.

Hypothetically, the Appeals Court might have reached the opposite determination if the Hoangs had filed the complaint in federal court. That is, if Opera Plaza had removed the Hoang's dish, fined the Hoangs, or otherwise prompted the Hoangs to file suit, then they might have plead that any action taken by Opera Plaza was in reliance upon a state law that was preempted by §§ 205 and 207 the Telecommunications Act, and that Opera Plaza violated the FCC OTARD regulation. If this had been the nature of the case, then the Court might have found that the complaint did raise a substantial question of federal law, and ruled that the federal court did possess subject matter jurisdiction.

Perhaps there is another unwritten rationale underlying the decisions of both the District Court and the Appeals Court. That is, federal courts do not want to devote their resources and talents to resolving nickel and dime disputes involving pots, pans, and dishes.

This case is Opera Plaza Residential Parcel Homeowners Association v. Tuan Hoang and Betty Hoang, U.S. Court of Appeals for the 9th Circuit, App. Ct. No. 02-16682, an appeal from the U.S. District Court for the Northern District of California, D.C. No. CV-02-01084-WHA, William Alsup presiding. Judge Barry Silverman wrote the opinion of the three judge panel, in which Judges Jay Bybee and Michael Hawkins joined.

PR China Agrees to Stop Preferential Tax Treatment for Domestic Producers of Integrated Circuits

7/9. The Office of the U.S. Trade Representative (USTR) announced in a release [2 pages in PDF] that the U.S. and the People's Republic of China (PRC) "have agreed on a resolution to their dispute at the World Trade Organization (WTO) regarding China's tax refund policy for integrated circuits."

On March 17, 2004 the U.S. filed a complaint with the World Trade Organization (WTO) against the PRC stating that the PRC's preferential tax treatment of integrated circuits produced in the PRC is discriminatory, and a violation of the PRC's WTO obligations. See, story titled "US Complains to WTO About PR China's Tax Preference for Domestic Producers of Integrated Circuits" in TLJ Daily E-Mail Alert No. 859, March 19, 2004. See also, story titled "Japan Joins US in Complaining to WTO About China's Discriminatory Tax on Integrated Circuits" in TLJ Daily E-Mail Alert No. 869, April 5, 2004.

The USTR release states that "The resolution will ensure full market access and national treatment for U.S. integrated circuits in China, the world's fastest growing semiconductor market and an export market worth over $2 billion to American manufacturers and workers. Today's agreement resolves the first WTO case filed against China by any WTO Member."

It adds that "Effective immediately, China will not certify any new semiconductor products or manufacturers for eligibility for VAT refunds. China will no longer offer VAT refunds that favor semiconductors designed in China. And, by April 1 of next year, China will stop providing VAT refunds on Chinese-produced semiconductors to current beneficiaries. Under China's tax policy, U.S. exporters of integrated circuits to China paid up to five times as much tax as local Chinese manufacturers. These policies disadvantaged U.S. manufacturers as well as U.S. firms that design integrated circuits."

Robert Zoellick

Robert Zoellick (at right) stated at a press conference that "In March of this year President Bush authorized us to file the first ever case against China in the World Trade Organization, charging that China was unfairly providing special tax treatment to semiconductors produced in China and discriminating against U.S-made integrated circuit chips. Today, less than four months after filing this case I am pleased to announced that effective immediately China will not certify any new semi-conductor products or manufacturers for eligibility for the value added tax or VAT refunds. China will no longer offer VAT tax refunds that favor semiconductors designed in China and, by April 1 of next year, China will stop providing VAT tax refunds on Chinese produced semi-conductors to current beneficiaries." See, transcript [PDF].

William Archey, P/CEO of the American Electronics Association (AeA), stated in a release that "The importance of today's announcement is two-fold for the high-tech industry ... First, it will bring this particular tax regime into compliance with WTO obligations, as it is critical that the country with the fastest growing tech sector abide by those obligations.

He added that "more broadly, with the rapid evolution in recent years in both China's economy and economic policy, it is inevitable that China might occasionally adopt policies aimed at conferring special benefits on domestic production. When that occurs, it is important that every attempt be made to bring such a large and important trading partner back into compliance with international obligations. That's exactly what the SIA petition and Ambassador Zoellick and his team have successfully accomplished."

FCC Adopts Report and Order Regarding Interference in the 800 MHz Band

7/8. The Federal Communications Commission (FCC) adopted, but did not release, a report and order that addresses the problem of interference to 800 MHz public safety communications systems from Commercial Mobile Radio Services (CMRS) providers operating systems on channels in close proximity.

FCC staff briefly summarized the item at the FCC's July 8 meeting. Four Commissioners wrote separate statements. The FCC issued a press release [4 pages in PDF] describing this item.

FCC Chairman Michael Powell explained the nature of the problem in a separate statement [PDF]. "Because of the interleaved nature of the band and the close proximity of incompatible technologies, over the years, these systems have encountered escalating amounts of interference from commercial cellular systems." See also, press statement of Chairman Powell.

The FCC release states that the report and order provides that Nextel will return its interference causing spectrum, and in return, will be given 10 megahertz of spectrum, located at 1910–1915 MHz and 1990-1995 MHz, subject to further conditions.

The FCC release provides this explanation. "To accomplish the reconfiguration, the Commission will require Nextel to give up rights to certain of its licenses in the 800 MHz band and all of its licenses in the 700 MHz band. In exchange, the Commission will modify Nextel’s licenses to provide the right to operate on two five-MHz blocks in a different part of the spectrum -- specifically 1910–1915 MHz and 1990-1995 MHz -- conditioned on Nextel fulfilling certain obligations specified in the Commission's decision."

It continues that "The Commission determined that the overall value of the 1.9 GHz spectrum rights is $4.8 billion, less the cost of relocating incumbent users. In addition, the Commission concluded that it would credit to Nextel the value of the spectrum rights that Nextel will relinquish and the actual costs Nextel incurs for to relocate all incumbents in the 800 MHz band. To the extent that these combined credits total less than the determined value of the 1.9 GHz spectrum rights, Nextel will make an anti-windfall payment to the United States Department of the Treasury at the conclusion of the relocation process equal to the difference".

It further states that "To ensure that the band reconfiguration process will be completed, the Commission will require Nextel to establish certain escrow accounts and a letter of credit in the amount of $2.5 billion specifically to ensure adequate funding of relocation costs for other 800 MHz incumbents. Similarly, as a new entrant in the 1.9 GHz band, Nextel is also obligated to fund the transition of incumbent users to comparable facilities."

The Commission vote was 5-0.

Nextel's wireless competitors are not pleased. Moreover, Chairman Powell, who spoke with reporters after the meeting, conceded that the report and order may be challenged in court.

Steve Largent, P/CEO of Cellular Telecommunications and Internet Association (CTIA), criticized the FCC's report and order. He wrote in a release that "The FCC clearly didn’t keep its eye on the ball. Its primary responsibility in this case is to look out for Public Safety and the American public and that didn’t happen ... It is unfortunate that the Commission’s plan does less to solve the Public Safety interference problem than other alternatives that were available. Among all of the FCC's choices, this one provides Public Safety with the fewest assurances of success."

Largent also wrote that "Giving up such valuable spectrum without a public auction means the U.S. Treasury is losing billions of dollars. Those funds could’ve been used to provide Public Safety with money to make much-needed improvements in the vital care it provides all of us".

FCC Commissioner Kathleen Abernathy wrote in a separate statement [PDF] that "the rebanding plan is costly, complex and, in some respects, controversial", but, "it is the only the solution that adequately addresses the needs of public safety while realigning other uses of the 800 MHz band."

See also, separate statement [PDF] of FCC Commissioner Michael Copps and separate statement [PDF] of FCC Commissioner Jonathan Adelstein supporting the report and order.

Mark Cooper, of the Consumer Federation of America, praised the FCC's report and order. He wrote in a release that "Adoption of this plan not only solves the public safety interference issue without any cost to taxpayers or governmental entities, it does so while maintaining a platform for strong, independent competition among wireless providers. I support the FCC decision to resolve the 800 MHz issue for the same reasons I oppose the AT&T Wireless merger with Cingular: the continuing need for strong, independent competitors. Competition is imperative in the wireless industry, especially as the Baby Bells attempt to lock down as much spectrum as they can."

Cooper added that "I believe this action provides for that long-awaited solution, and urge an immediate end to the anti-competitive tactics from companies who have sought to thwart and delay this result. Any attempt to further delay implementation of this decision comes at the expense of emergency services personnel, and the public they protect.  I urge Verizon and others, who seemingly wants to continue to stand in the way of the interests of public safety and competition, to continue their battle in the marketplace and not in the courtroom."

John Muleta answered questions from reporters at a press conference after the meeting. He was asked when the FCC will release the report and order. Muleta stated that "our expectation is to work on this as expeditiously as possible". He offered no guidance as to when the FCC would release the report and order.

Chairman Powell also wrote in his press statement that "The proceeding has seen some of the most ruthless lobbying I have ever encountered." The characterization "ruthless" may be an understatement. See, for example, comments and ex parte communications submitted to the FCC, and published in the FCC's web site. These may be accessed via the FCC's web page titled "Search for Filed Comments". Enter the proceeding number: 02-55.

For example, William Barr, EVP and General Counsel of Verizon, wrote in a letter [32 pages in PDF with attachments] to Chairman Powell that "adopting either plan would contravene the requirements of the Communications Act of 1934, as amended, concerning the Commission's disposition of public spectrum. More than that, proceeding on this course would place the Commission's members themselves in direct violation of federal laws governing the personal accountability of federal officials for the disposition of federal resources. While the Commission is familiar with the Communications Act, I believe it may not be as well acquainted with these latter proscriptions, some of which are criminal in nature."

See also, American Bar Association Formal Opinion 92-363 relating to the Use of Threats of Prosecution in Connection with a Civil Matter.

This item is titled "Report and Order, Fourth Report and Order, Memorandum Opinion and Order, and Order". It is FCC 04-168 in WT Docket No. 02-55, ET Docket No. 00-258, RM-9498, RM-10024, ET Docket No. 95-18, and IB Docket No. 01-185.

Senate Democrats Block Class Action Fairness Act

7/8. The Senate failed to pass a motion to invoke cloture on S 2062, the "Class Action Fairness Act of 2004", on a vote of 44-43. See, Roll Call No. 154. This effectively blocks Senate passage of the bill.

The vote broke down largely along party lines, with Republicans supporting the motion, and Democrats opposing it. Senate Democrats lack the votes to defeat this bill on an ordinary majority vote. So, they have utilized a filibuster. Filibusters can be terminated by a cloture vote. However, cloture motions required a three fifths majority to pass. See, Senate Rule No. 22.

Senate Democrats also defeated a cloture motion last year. On October 22, 2003, the Senate rejected a motion to invoke cloture on S 1751, the "Class Action Fairness Act of 2003", by a vote of 59-39. See, Roll Call No. 403. See also, story titled "Senate Rejects Class Action Fairness Act" in TLJ Daily E-Mail Alert No. 764, October 23, 2003.

On June 12, 2003, the House passed its version of the bill, HR 1115, also titled the "Class Action Fairness Act", by a vote of 253-170. See, Roll Call No. 272. See also, stories titled "House Passes Class Action Fairness Act" in TLJ Daily E-Mail Alert No. 680, June 13, 2003, and "Reps. Goodlatte and Boucher Re-Introduce Class Action Fairness Act" in TLJ Daily E-Mail Alert No. 619, March 10, 2003.

Stanton Anderson, of the U.S. Chamber of Commerce and the Class Action Fairness Coalition, stated in a release that "Although we are disappointed at the procedural gimmicks that continue to stymie an up-or-down vote on the bill, we remain committed to passing this reasonable and vital piece of legislation this year."

Washington Tech Calendar
New items are highlighted in red.
Tuesday, July 13

The House will meet at 9:00 AM for morning hour, and at 10:00 AM for legislative business. It will consider HR 4766, the agriculture appropriations bill. See, Republican Whip Notice.

The Senate will meet at 9:45 AM for morning hour. It will then resume consideration of the motion to proceed to SJRes 40, the "Federal Marriage Amendment".

9:30 AM. The Intellectual Property Owners Association (IPO) will host a press conference to announce its inventor of the year award. See, notice. Location: National Press Club, Holeman Lounge, 529 14th St. NW, 13th Floor. The IPO will also host an invitation only reception in the Caucus Room of the Cannon House Office Building. For more information, contact Susan Lusk at or 202 466-2396.

9:30 AM. The North American Numbering Council (NANC) will meet. Location: Federal Communications Commission (FCC), 445 12th Street, SW, Room TW-C305.

9:30 AM. The Senate Commerce Committee will hold a hearings on the proposed reauthorization of the Corporation for Public Broadcasting. See, notice. The hearing will be webcast. Location: Room 253, Russell Building.

5:00 PM. The House Rules Committee will meet to adopt a rule for consideration of HR 4759, the "U.S.-Australia Free Trade Agreement Implementation Act".

Wednesday, July 14

The House will meet at 10:00 AM for legislative business. The agenda for July 14 and 15 includes consideration of several technology related items, including HRes 705, urging the President to resolve the disparate treatment of direct and indirect taxes presently provided by the World Trade Organization (WTO), HRes 576, urging People's Republic of China to improve its protection of intellectual property rights, and HR 4759, the "United States-Australia Free Trade Implementation Act". See, Republican Whip Notice.

8:30 AM - 12:00 NOON. The DC Bar Association's Intellectual Property Law Section will host a program titled "The ABC's Of Patent, Trademark And Copyright Law". The speakers will be Steven Warner (Fitzpatrick Cella Harper & Scinto), Gary Krugman (Sughrue Mion), John Hornick (Finnegan Henderson), and Aoi Nawashiro (Browdy & Neimark). Prices vary. A breakfast buffet is included. See, notice. For more information, call 202 626-3463. Location: D.C. Bar Conference Center, B-1 Level, 1250 H Street, NW.

9:00 AM - 1:15 PM. The National Telecommunications and Information Administration (NTIA) will host an event titled " Forum: Developing a Safe Place on the Internet for Children". See, NTIA notice and notice in the Federal Register, June 4, 2004, Vol. 69, No. 108, at Pages 31590-31591. Location: Department of Commerce, 1401 Constitution Ave., NW, Room 4830.

10:00 AM. The Senate Finance Committee will hold an open executive session. The agenda includes (1) a mock mark up to consider proposed legislation implementing the U.S.-Morocco Free Trade Agreement, (2) consideration of S 2610, the U.S.-Australia Free Trade Agreement Implementation Act, and (3) consideration of the nominations of Joey Russell George (to be Treasury Inspector General for Tax Administration), Patrick O'Carroll (Inspector General, Social Security Administration), Timothy Bitsberger (Assistant Secretary for Financial Markets, Department of the Treasury), and Paul Jones and Charles Kolbe (IRS Oversight Board). Location: Room 215, Dirksen.

10:00 AM. The House Commerce Committee's Subcommittee on Telecommunications and the Internet will hold a hearing titled "Competition and Consumer Choice in the MVPD Marketplace -- Including an Examination of Proposals to Expand Consumer Choice, Such as A La Carte and Themed-Tiered Offerings". Press contact: Jon Tripp (Barton) at 202 225-5735 or Sean Bonyun (Upton) at 202 225-3761. Location: Room 2123, Rayburn Building.

10:00 AM. The House Armed Services Committee and the House International Relations Committee will hold a joint hearing on the "Role of Arms Export Policy in the Global War on Terror". The witnesses will be Lincoln Bloomfield (Assistant Secretary of State, Bureau of Political-Military Affairs), Lisa Bronson (Deputy Under Secretary of Defense for Technology Security Policy and Counterproliferation), and Peter Lichtenbaum (Assistant Secretary for Export Administration, Bureau of Industry and Securities, Department of Commerce). The hearing notice does not disclose the extent to which the hearing might focus on the export of items involving information and communications technologies. Location: Room 2118, Rayburn Building.

11:30 AM. The House Commerce Committee's Subcommittee on Commerce, Trade and Consumer Protection will hold a hearing titled "Radio Frequency Identification (RFID) Technology: What the Future Holds for Commerce, Security, and the Consumer". Press contacts: Samantha Jordan (Barton) at 202 225-5735 or Paul Flusche (Stearns) at 202 225-5744. Location: Room 2322, Rayburn Building.

5:00 PM. The House Ways and Means Committee will meet to mark up a draft implementing proposal of HR __, the "United States-Morocco Free Trade Agreement Implementation Act". Location: Room 1100, Longworth Building.

Thursday, July 15

The House will meet at 10:00 AM for legislative business. The agenda for July 14 and 15 includes consideration of several technology related items, including HRes 705, urging the President to resolve the disparate treatment of direct and indirect taxes presently provided by the World Trade Organization (WTO), HRes 576, urging People's Republic of China to improve its protection of intellectual property rights, and HR 4759, the "United States-Australia Free Trade Implementation Act". See, Republican Whip Notice.

TIME CHANGE. 9:30 AM. The Senate Commerce Committee's Subcommittee on Communications will hold a hearing on implementation of the Nielsen local people meter TV rating system. See, notice. The hearing will be webcast. Press contact: Rebecca Fisher at 202 224-2670. Location: Room 253, Russell Building.

9:30 AM. The Senate Judiciary Committee will hold an executive business meeting. Location: Room 226, Dirksen Building.

Congressional Internet Caucus' Advisory Committee will host a panel discussion titled "The DMCA Revisited: What's Fair?". Lunch will be served.

12:15 - 2:00 PM. The Forum on Technology & Innovation (FTI) will host a luncheon discussion titled "The Policy Implications of Open Source Software". The speakers will be Andrew Morton (lead maintainer for the Linux public production kernel), Bill Guidera (Microsoft), Cheryl Bruner (IBM), and Morgan Reed (Association for Competitive Technology). See, notice. Lunch is available at 12:15 PM. The event will be webcast by the FTI. The program will begin at 12:30 PM. Register by 5:00 PM on  July 13 by by fax at 202 682-5150 or at; provide your name, title, office, and e-mail address. Location: Room 902, Hart Building, Capitol Hill.

2:00 PM. The House Armed Services Committee's Tactical Air Land Forces Subcommittee will hold a hearing on "Small Business Innovation and Technology". Location: Room 2118, Rayburn Building.

6:00 - 9:30 PM. The DC Bar Association will host a continuing legal education (CLE) program titled "Antitrust Investigations in the Era of Enron and WorldCom". The speakers will include Ray Hartwell (Hunton & Williams), Scott Hammond (Director of Criminal Enforcement, Antitrust Division, Department of Justice), and Donald Klawiter (Morgan Lewis & Bockius). Prices vary. See, notice. For more information, call 202 626-3488. Location: D.C. Bar Conference Center, B-1 Level, 1250 H Street, NW.

Extended deadline to submit comments to the Federal Communications Commission (FCC) in response to its Public Notice (DA 04-1454) regarding a la carte and themed programming and pricing options for programming distribution on cable TV and direct broadcast satellite systems. This is MB Docket No. 04-207. See, notice of extension [PDF].

Friday, July 16

10:30 AM. The Progress and Freedom Foundation (PFF) will host a conference titled "Should the Net's Physical Layer be Regulated?". Christopher Yoo (Vanderbilt Law School) will give the opening address. There will be a panel discussion by Joe Waz (Comcast), Rick Whitt (WorldCom), Adam Thierer (Cato Institute), and Randolph May (PFF). Kenneth Ferree (Chief of the FCC's Media Bureau) will be the luncheon address. See, notice and registration pages. For more information, contact Brooke Emmerick at 202 289-8928 or Press contact: David Fish at 202 775-2644 or Location: Washington Mandarin Oriental hotel, 1330 Maryland Ave., SW.

12:15 PM. The Federal Communications Bar Association's (FCBA) Cable Practice Committee and Young Lawyers Committee will host a brown bag lunch. The topic will be "The Basics of A La Carte Cable Pricing". For more information, contact Natalie Roisman at, or Jason Freidrich at Location: Willkie Farr & Gallagher, 1875 K Street, NW, 2d Floor.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Further Notice of Proposed Rule Making (FNPRM) and Notice of Inquiry (NOI) regarding digital audio broadcasting (DAB). This item is FCC 04-99 in MB Docket No. 99-325. See, story titled "FCC Announces FNPRM and NOI Regarding Digital Audio Broadcasting" in TLJ Daily E-Mail Alert No. 878, April 16, 2004, and notice in the Federal Register, May 17, 2004, Vol. 69, No. 95, at Pages 27874 - 27885.

Monday, July 19

10:00 AM. The U.S. District Court (DC) will hold a status conference in U.S. v. Microsoft, and New York v. Microsoft, Case Nos. 1:1998-cv-01232 and 3, Judge Colleen Kotelly presiding. Location: Courtroom 11, Prettyman Courthouse, 333 Constitution Ave.

Monti Addresses Competition Policy and New Media

7/8. Mario Monti, the European Commissioner for Competition Policy, gave a speech in Brussels, Belgium titled "Access to content and the development of competition in the New Media market- the Commission’s approach".

Mario MontiMonti (at right) said that "one concern of competition authorities should be to ensure that media content can be provided over new networks and not just the traditional ones. I am not only thinking about the new 3G mobile networks but also broadband DSL and cable connections to the Internet."

He concluded that "the Media sector is, and will remain, on the top of the agenda for the application of European competition policy. Across Europe the Commission will carefully monitor market developments and act wherever we detect foreclosure of markets. Availability of attractive content - notably sports (football) rights but also music, film rights and anything that will be considered as an attractive content in the future – will continue to be kept under close scrutiny using all the powerful legal instruments that the recent modernisation of the antitrust rules has put at our disposal. This is of course even more true for the new media whose rapid and undisturbed development is one of the major goals for the Commission in the next years. We are doing and will do all that is in our power to achieve this goal."

USAO in Northern District of California Prosecutes Unauthorized Access to Protected Computer Cases

7/6. A grand jury of the U.S. District Court (NDCal) returned an indictment [redacted, PDF] on July 2 against Laurent Chavet that charges one count of unauthorized access to a protected computer in violation of 18 U.S.C. § 1030(a)(4) and one count of reckless damage to a protected computer in violation 18 U.S.C. § 1030(a)(5).

The indictment alleges that Laurent Chavet "was employed by AltaVista as a computer engineer from approximately June 1999 to approximately February 2002" and that "On or about March 28, 2002, in the Northern District of California ... did knowingly and with intent to defraud, access a protected computer belonging to AltaVista, to wit, the computer know as ``respository2´´, without authorization and by exceeding authorized access, and by means of such conduct did further the intended fraud and obtain something of value, to wit, source code belonging to AltaVista."

AltaVista was an internet search company that has since been acquired.

A release of the U.S. Attorney's Office (USAO) states that FBI agents arrested Chavet in Seattle, Washington, and that Chavet lives in Kirkland, Washington. Microsoft, which also develops search products, is based in Redmond, Washington.

Also in the Northern District of California, Yan Ming Shan plead guilty on July 6 to a one count indictment [PDF] charging him with unauthorized access to a protected computer in violation of 18 U.S.C. § 1030(a)(4) in connection with his accessing the computers of 3DGeo Development, Inc. to fraudulently obtain proprietary software programs and source code. See also, USAO release.

§ 1030(4) provides that "Whoever ... knowingly and with intent to defraud, accesses a protected computer without authorization, or exceeds authorized access, and by means of such conduct furthers the intended fraud and obtains anything of value, unless the object of the fraud and the thing obtained consists only of the use of the computer and the value of such use is not more than $5,000 in any 1-year period".

People and Appointments

7/8. William Deere was named VP -- Government Affairs of the U.S. Telecommunications Association (USTA). He was previously Deputy Assistant Secretary in the State Department's Bureau of Legislative Affairs. See, USTA release.

More News

7/12. The Federal Communications Commission's (FCC) Internet Policy Working Group (IPWG) announced that it will host an event that it describes as "a roundtable discussion to address international issues associated with the migration of communications services and applications to IP-based technologies". It will be on Friday, July 30 from 9:30 AM to 1:00 PM. See, FCC notice [PDF]. The event will be held in the FCC's Commission Meeting Room, 445 12th Street, SW.

7/8. At the Federal Communications Commission's (FCC) July 8, 2004 meeting, Dane Snowden, Chief of the FCC’s Consumer & Governmental Affairs Bureau, presented a report [23 pages in PDF] on an FCC program titled "Lands of Opportunity: Building Rural Connectivity". He discussed FCC efforts in Appalachia, in the Mississippi valley, in rural Alaska, and in Indian country in the western states. See, FCC release [PDF].

7/9. The Senate passed HR 1303 by unanimous consent. This bill would amend § 205(c) of the E-Government Act of 2002 (Public Law No. 107-347) by striking paragraph (3) and inserting the following: "(3) PRIVACY AND SECURITY CONCERNS--The Judicial Conference of the United States may promulgate rules to protect privacy and security concerns relating to the electronic filing of documents, and the public availability of documents filed electronically, pursuant to this subsection." Currently, paragraph (3) provides that the "The Supreme Court shall prescribe rules, in accordance with sections 2072 and 2075 of title 28, United States Code, to protect privacy and security concerns relating to electronic filing of documents and the public availability under this subsection of documents filed electronically." The House passed this bill by voice vote on October 7, 2003.

7/7. The Business Software Alliance (BSA) released a report on global software piracy. See, BSA release.

Notice of Change of E-Mail Address

The e-mail address for Tech Law Journal has changed. The new address is as follows:

Address Graphic

All previous e-mail addresses no longer operate. This new address is published as a graphic to avoid e-mail address harvesting, and the associated spam messages and malicious code messages. If your e-mail system does not display graphics, see notice in TLJ website.

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.
P.O. Box 4851, Washington DC, 20008.

Privacy Policy
Notices & Disclaimers
Copyright 1998 - 2004 David Carney, dba Tech Law Journal. All rights reserved.