|NTIA Submits Comment to FCC on Temperature
8/16. The National Telecommunications and Information
Administration (NTIA) submitted a
to the Federal Communications Commission (FCC) in response
to its Notice of Inquiry and Notice of Proposed Rulemaking (NOI/NPRM) regarding the
temperature interference method of quantifying and managing interference among different
This proceeding is titled "In the Matter of Establishment of an Interference
Temperature Metric to Quantify and Manage Interference and to Expand Available Unlicensed
Operation in Certain Fixed, Mobile and Satellite Frequency Bands". This NOI/NPRM is
FCC 03-289 in ET Docket No. 03-237. See also, story titled "FCC Announces NOI/NPRM on
Interference Temperature Model" in
TLJ Daily E-Mail
Alert No. 779, November 14, 2003.
The FCC has published in its web site 83 items in this proceeding. To
retrieve the NOI/NPRM, comments, and other filings, go to the
Search for Comments
page, and enter the docket number, 03-237, in the first box.
The NTIA states that it "agrees with the Commission regarding the significant
benefits that could be gained by increasing the spectrum access opportunities for unlicensed
devices. The implementation of the interference temperature model and the use of
interference mitigation techniques such as DFS and geo-location represent a
shift in interference management from the transmitter to the receiver."
The NTIA comment continues that "The NOI
identifies many technically challenging issues that must be addressed before the
interference temperature model can be implemented in a frequency band. These
technical issues include, but are not limited to, the development of radio
service specific reference receiver parameters, the development of radio service
specific maximum permissible interference limits and operational scenarios, and
measurement of the existing RF signal environment in order to establish a proper
baseline. Until these technical issues and the rights and responsibilities of
licensed and unlicensed spectrum users have been resolved, wide spread
implementation of the interference temperature model will not possible."
It concludes that "Because of the sensitive nature of the operations in
the restricted frequency bands, implementing the interference temperature model would be
difficult if not impossible. However, if the initial implementation of the interference
temperature model were limited to specific bands, for example, bands which have
been transferred from the federal government, many of the technical issues
listed above could be addressed and possibly resolved with minimal impact to
incumbent commercial and federal government users. NTIA believes that active
interference mitigation techniques such as DFS and geo-location hold great
promise for facilitating sharing between licensed and unlicensed spectrum users.
However, these techniques should not be employed until the supporting technical
studies examining the specific characteristics of the licensed radio services
and the unlicensed device applications have been completed."
The following are some of the filings in this proceeding,
arranged in alphabetical order, by the party submitting the comments.
|District Court Refuses to Block Arch Coal
8/17. On August 16, 2004 the U.S.
District Court (DC) issued its
Memorandum Opinion and Order
[97 pages in PDF] in FTC v. Arch Coal, denying the
Federal Trade Commission's (FTC) motion
for a preliminary injunction of Arch Coal's acquisition of Triton Coal Company.
This case involves open pit coal mining in the state of Wyoming, but the
competition law principles involved are pertinent to other industry sectors. The
statutory provision at issue is Section 7 of the Clayton Act, which is codified
at 15 U.S.C. § 18.
It prohibits a merger between two companies "where in any line of commerce or in
any activity affecting commerce in any section of the country, the effect of
such acquisition ... may be substantially to lessen competition, or tend to
create a monopoly."
On August 17, 2004 the FTC filed an emergency motion under seal with the
U.S. Court of Appeals (DCCir)
seeking both injunctive relief and an expedited appeal process. See,
redacted copy [23 pages in PDF]. It is titled "Emergency Motion of the
Federal Trade Commission and Plaintiff States for an Injunction Pending Appeal
and to Expedite Appeal". See also, FTC
This case is FTC v. Arch Coal, Inc., et al., No. 04-0534 (JDB), and
State of Missouri, et al. v. Arch Coal, Inc., et al., No. 04-0535 (JDB),
consolidated, U.S. District Court for the District of Columbia, Judge John Bates
|District Court Finds No Federal Jurisdiction
in Contract Claim Pertaining to Ownership of Copyright
8/13. The U.S. District Court (DMass)
Memorandum & Order [7 pages in PDF] in RMB Technologies v. Lash,
a case involving whether there is federal jurisdiction, based upon the Copyright
Act, in a suit for breach of contract, and other state law claims, that is based
upon a dispute over ownership of a software program. The District Court held
that there is federal jurisdiction, and remanded the case to the state court.
RMB Technologies develops marketing and sales
management solutions for retail banks and financial institutions. RMB hired Robert Lash
to work on the development of a software program that would enable branch banks to
communicate with each other. RMB and Lash entered into an employment contract that provided
that any work performed by Lash while under the agreement, whether copyrightable, patentable
or not, would be the exclusive property of RBM. Lash asserts that he wrote the source code
for the program. Lash and RMB quarreled, and he terminated his employment with RMB. He
asserted that RMB breached the employment contract. He also asserted ownership of the
copyright in the program, and demanded compensation for the sale or use of the program.
RMB filed a complaint in Middlesex Superior Court in the state of
Massachusetts alleging five state law causes of action -- breach of contract, conversion,
misappropriation of trade secrets and confidential information, declaratory judgment, and
for violation of Mass. Gen. Laws ch. 272, § 99(Q) regarding wire communications.
Lash removed the action to the District Court, and asserted numerous
counterclaims, including that the contract is void, breach of contract,
copyright infringement, and declaratory judgment that he owns the copyright.
Lash simultaneously filed a separate action in the District
Court against RMB alleging copyright infringement, seeking an accounting, and
seeking a declaratory judgment that he is the owner of the copyright.
The federal courts have subject
matter jurisdiction over claims that arise under the Constitution or federal
law, including the Copyright Act. The Court wrote that "Whether the claim
arises under federal law is determined by reference to the complaint alone; the
existence of a potential defense based on federal law does not confer a right to
The Court continued that "On its face, RBM's complaint does not
state a federal question. Although RBM's breach of contract claim is related to
copyright law insofar as the contract RBM alleges Lash breached purportedly
allocated ownership of a copyrighted program, this is not enough to satisfy the
``arising under´´ requirement."
The Court reasoned that "the crux of RBM's claim is whether a
valid contract existed between the parties and whether Lash breached that
contract. RBM asserts that because the contract is valid, Lash's work product is
the exclusive property of RBM and he does not have the right to claim ownership
of the copyright to ``Merchandising Manager.´´ In opposition, Lash asserts that
if he were properly exercising ownership rights over the software then there can
be no breach of contract. Lash's reasoning is circular because he ignores the
fact that his right to claim ownership depends on an initial resolution of the
underlying contract issue."
The Court added that "If, after resolving the essential contract
issue, the state court finds it necessary to examine federal copyright law to
resolve the dispute, it would certainly be within the court’s purview to do so."
The Court also rejected Lash's argument that federal copyright law preempts RMB's
claims of misappropriation of trade secrets and confidential information cause of action,
and that this provides a basis for federal jurisdiction.
This case is RMB Technologies, Inc. v. Robert Lash, D.C. No. 04-10062-GAO,
Judge George O'Toole presiding.
|People and Appointments
8/16. Deborah Majoras took the oath of office
to become Chairman of the Federal Trade Commission (FTC).
President Bush previously gave Majoras and Jonathan Liebowitz recess appointments.
See, FTC release. See also,
story titled "Bush Gives Majoras and Liebowitz Recess Appointments to the
FTC" in TLJ Daily E-Mail Alert No. 950, August 2, 2004, and
"Senate Commerce Committee Holds Hearing on FTC Nominees" in
TLJ Daily E-Mail
Alert No. 910, June 3, 2004.
|TLJ experienced a technical problem yesterday morning.
Hence, yesterday's issue of the TLJ Daily E-Mail Alert will be
sent immediately following this issue.
|Washington Tech Calendar
New items are highlighted in red.
|Thursday, August 19
10:00 AM. The Senate Judiciary
Committee will hold a hearing titled "The 9-11 Commission and Recommendations
for the Future of Federal Law Enforcement and Border Security". The witnesses
will include Asa
Hutchinson, the Under Secretary for Border and Transportation Security at the
Department of Homeland Security. See,
notice. Location: Room
226, Dirksen Building.
12:00 NOON - 1:30 PM. The DC Bar
Association's International Law Section and Antitrust and Consumer Law Section
will host a panel discussion titled "The Reach Of U.S. Antitrust Law After
Empagran". The subject will be the U.S. Supreme Court's June 14, 2004
opinion [23 pages in PDF] in F. Hoffmann-La Roche Ltd., v. Empagran,
S.A. The speakers will be Steven Mintz (Department of Justice,
Metlin (Dickstein Shapiro), and
Jonathan Franklin (Hogan & Hartson). See,
Prices vary from $10-$15. For more information, call 202 626-3463. Location:
Fried Frank, 1001 Pennsylvania Ave., NW.
1:30 PM. The National
Rural Electric Cooperative Alliance (NRECA) will hold a press conference to present
its High-Tech Rural Broadband Alliance Award. For more information, contact Renee Butler
at 703 907-5704. Location: Zenger Room, National Press Club, 529 14th St. NW, 13th
6:00 - 9:15 PM. The DC Bar
Association's Telecommunications Law Section will host a continuing legal education
(CLE) program titled "New FCC Media Ownership Rules Made Simple". The
speakers will be Tom
Davidson (Akin Gump) and
Gregory Masters (Wiley
Rein & Fielding). Prices vary. See,
For more information, contact 202-626-3488. Location: D.C. Bar Conference
Center, B-1 Level, 1250 H Street, NW.
|Friday, August 20
10:00 AM. The House
Subcommittee on Commercial and Administrative Law and Subcommittee on the Constitution
will hold a joint hearing titled "Privacy and Civil Liberties in the Hands of the
Government Post-September 11, 2001: Recommendations of the 9/11 Commission and the U.S.
Department of Defense Technology and Privacy Advisory Committee". The witnesses
will include Nuala
Kelly, Chief Privacy Officer of the Department of
Homeland Security. The hearing will be webcast. Location: Room 2141, Rayburn Building.
|Monday, August 23
10:00 AM. The
House Financial Services
Committee will hold a hearing titled "The 9/11 Commission Report:
Identifying and Preventing Terrorist Financing". See,
report of the
National Commission on Terrorist Attacks Upon
the United States (9-11 Commission). Press contact: Peggy Peterson at 202
226-0471. Location: Room 2128, Rayburn Building.
Deadline to submit reply comments to the Federal
Communications Commission (FCC) in response to its notice of proposed rulemaking
(NPRM) regarding the reporting requirements for U.S. providers of international
telecommunications services. This NPRM is FCC 04-70 in IB Docket No. 04-112. See,
notice in the Federal Register, May 25, 2004, Vol. 69, No. 101, at Pages
29676 - 29681.
|Wednesday, August 25
10:30 AM - 12:15 PM. The
Federal Communications Commission (FCC) will
hold an event titled "Discussion on the Debt Collection Improvement Act
Rules and Rules Governing Applications or Other Request for Benefits by
notice [PDF]. Location: FCC, Commission Meeting Room, 445 12th Street, SW.
12:15 PM. The Federal Communications Bar
Association's (FCBA) Online Communications Practice Committee will host a brown bag
lunch. The topic will be Federal Communications Commission (FCC) and
Agriculture (USDA) policies related to deployment of wireless broadband
services in rural areas. The speakers will be Peter Corea (Special Counsel, FCC's
WTB's Broadband Division) and Chris Moore (USDA). For more info contact Ann Bobeck at
email@example.com. RSVP to Evelyn Opany at
Piper Rudnick, 1200 19th St., NW, 7th
Deadline to submit reply comments to the
Federal Communications Commission (FCC) in response to
of Inquiry (NOI) [30 pages in PDF] regarding its annual report to the Congress on the
status of competition in the market for the delivery of video programming. See also, story
titled "FCC Adopts NOI For Annual Report to Congress on Video Programming" in
TLJ Daily E-Mail Alert No. 916, June 11, 2004. This NOI is FCC 04-136 in MB Docket No.
04-227. See also,
notice in the Federal Register, July 1, 2004, Vol. 69, No. 126, at Pages
39930 - 39933.
Deadline to submit comments and notices of intention to
participate to the Copyright Office regarding
ascertainment of controversy for the 2002 cable royalty funds. The CO published a
notice in the Federal Register that "directs all claimants to royalty fees
collected for calendar year 2002 under the cable statutory license to submit comments
as to whether a Phase I or Phase II controversy exists as to the distribution of those
fees and announces the deadline for the filing of Notices of Intention to Participate
in a royalty distribution proceeding concerning those royalty fees." See, Federal
Register, July 26, 2004, Vol. 69, No. 142, at Pages 44548 - 44549.
8/17. President Bush signed the
HR 4842, the
US-Morocco Free Trade Agreement Implementation Act. See, White House
See also, stories titled "House Passes US Morocco FTA Bill" in TLJ Daily E-Mail
Alert No. 944, July 23, 2004, and "US Morocco FTA Bill Moves in Congress" in TLJ
Daily E-Mail Alert No. 943, July 22, 2004.
8/17. The Federal Communications Commission
(FCC) published a
in the Federal Register that describes and set comment deadlines for it notice of proposed
rulemaking (NPRM) regarding Amateur Radio Service rules. The FCC adopted
this NPRM on March 31, 2004, and released it on April 15, 2004. This NPRM is FCC
04-79 in WT Docket No. 04-140. Comments are due by
September 16, 2004, and reply comments are due by October 1, 2004. See, Federal
Register, August 17, 2004, Vol. 69, No. 158, at Pages 51028 - 51034.
8/17. The Department of Commerce's (DOC)
Technology Administration (TA) published a
notice in the Federal Register regarding information collection practices. Many
federal agencies collection information of many sorts. The Paperwork Reduction Act of 1995
imposes requirements upon these agencies, including the publication of a notice in the
Federal Register. TLJ rarely reports on these notices. However, this one pertains to the
TA's collection of information, on a voluntary basis, from producers of Global Positioning
System (GPS) equipment. See, Federal Register, August 17, 2004, Vol. 69, No. 158, at Pages
51070 - 51071.
8/17. CompTel/Ascent wrote a
letter [2 pages in PDF] to Secretary of Commerce Donald Evans asking him to
encourage the Federal Communications Commission
(FCC) to adopt interim unbundling rules.
8/16. The U.S. Court of Appeals
(9thCir) issued its
opinion [11 pages in PDF] in China National v. Apex, an appeal from
a District Court order affirming an arbitration award in a dispute involving the import
of DVD players from PR China to the U.S. The contract between the parties provided that
disputes would be arbitrated before the
Economic and Trade Arbitration Commission (CIETAC). Apex asserted that China
National was in breach of the contract because many of the DVD players that it shipped to
Apex were defective and because it had failed to pay intellectual property royalties for
technology employed in the players. Apex withheld payment. The CIETAC panel ruled in favor
of China National. The District Court affirmed. And now, the Court of Appeals affirmed.
This case is China National Metal Products Import/Export Company v. Apex Digital, Inc.,
No. 03-55231, an appeal from the U.S. District Court for the Central District of California,
D.C. No. CV-02-00631-RT, Judge Robert Timlin presiding. Judge Jay Bybee wrote the opinion
of the Court.
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