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August 18, 2004, 9:00 AM ET, Alert No. 961.
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NTIA Submits Comment to FCC on Temperature Interference Model

8/16. The National Telecommunications and Information Administration (NTIA) submitted a comment 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 services.

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 Merger

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 release.

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 presiding.

District Court Finds No Federal Jurisdiction in Contract Claim Pertaining to Ownership of Copyright

8/13. The U.S. District Court (DMass) issued its 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 remove."

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 story titled "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.
Wednesday, August 18

The House and Senate are in recess through September 6.

RESCHEDULED FOR SEPTEMBER 2. 1:30 - 3:30 PM. The Federal Communications Commission's (FCC) WRC 07 Advisory Committee, Informal Working Group 5: Regulatory Issues, will meet. See, notice [PDF]. Location: The Boeing Company, Arlington, VA. See, rescheduling notice [PDF].

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, Antitrust Division), Peter Orszag (Brookings Institution), Elaine Metlin (Dickstein Shapiro), and Jonathan Franklin (Hogan & Hartson). See, notice. 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 Floor.

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, notice. 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 Judiciary Committee's 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 Debtors". See, 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 Department of 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 RSVP to Evelyn Opany at Location: Piper Rudnick, 1200 19th St., NW, 7th Floor.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Notice 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.

More News

8/17. President Bush signed the HR 4842, the US-Morocco Free Trade Agreement Implementation Act. See, White House release. 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 notice 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 China International 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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