11/10. PeopleSoft announced in a release that "its Board of Directors voted unanimously to recommend that PeopleSoft stockholders reject Oracle Corporation's ... amended unsolicited offer to purchase all PeopleSoft shares for $24.00 per share", and that the Board "recommends that PeopleSoft stockholders not tender their shares to Oracle".

In addition, PeopleSoft Ch/CEO Dave Duffield stated in the same release that "The Board concluded that PeopleSoft is worth substantially more than Oracle's latest offer."

On November 1, 2004, Oracle made an offer of $24 per share, up from its previous offer of $21 per share. Oracle's CEO Larry Ellison and Chairman Jeff Henley wrote in a letter to PeopleSoft on November 1. They stated that "For almost 17 months the owners of PeopleSoft -- the stockholders -- have been denied the opportunity to consider our offer, while we have fought our way through a variety of regulatory obstacles actively promoted by the PeopleSoft Board of Directors. Those obstacles no longer exist. Last week the European Commission voted to clear Oracle's bid for PeopleSoft. This decision, coupled with the decision of the U.S. Department of Justice not to appeal Judge Walker's decision, means that now the PeopleSoft Board of Directors is the only obstacle to stockholder consideration of our offer."

Ellison and Henley concluded that "Although our $24 price is final and non-negotiable, we are ready to negotiate the other terms of a merger agreement with you". See, Oracle release and letter.

11/10. A Dispute Resolution Panel of the World Trade Organization (WTO) released its report [287 pages in PDF] on Antigua and Barbuda's complaint that U.S. laws affecting internet gambling violate U.S. treaty obligations. The panel held that various federal laws, including the Wire Act, and various state laws, violate the General Agreement on Trade in Services (GATS). The Office of the USTR called the report "deeply flawed".

The report, which is titled "United States -- Measures Affecting the Cross-Border Supply of Gambling and Betting Services: Report of the Panel", finds that these laws violate the U.S.'s market access commitments for gambling and betting services.

The report therefore directs the U.S. Congress and various states to amend their statutes to legalize the placing of bets in the U.S., and international money transfers and payments, that facilitate internet gambling provided in Antigua and Barbuda.

Antigua and Barbuda is a nation comprised of two tiny sparsely populated islands located in the Caribbean, east southeast of Puerto Rico, at 17 03 N, 61 48 W. The economy is primarily service based, with tourism accounting for more than half of the GDP. Antigua and Barbuda is also a "drug money laundering center" (The World Factbook, CIA, 2003, at page 20), and an internet based gambling center.

Richard Mills, the spokesman for the Office of the U.S. Trade Representative (USTR), stated in a release that "This panel report is deeply flawed", and that "We will vigorously appeal this deeply flawed report to the WTO Appellate Body and remain confident in the basis for reversing this panel report."

He elaborated that "In 1995, the Clinton Administration clearly intended to exclude gambling from U.S. services commitments when the Uruguay Round negotiations were completed. Throughout our history, the United States has had restrictions on gambling, like many other countries. Given these restrictions, it defies common sense that the United States would make a commitment to let international gambling operate within our borders. Antigua is arguing for a result that was never imagined, much less bargained for, in the Uruguay Round negotiations."

He added that "contrary to what the panel asserted, there is no obligation for WTO members to conduct international consultations before taking action to protect public morals and public order and enforce criminal laws. WTO members were already restricting gambling and other activities affecting public morals and public order long before they created the WTO. The WTO agreements confirmed the rights of Members to protect public morals and public order. Nothing in any WTO agreement requires Members to seek approval from their trading partners before exercising those rights. Indeed, on these grounds alone, this panel report should be of great concern to every single WTO member."

11/9. The Federal Communications Commission (FCC) adopted, but did not release, a Report and Order regarding modifications to and extension of its Form 477 local competition and broadband data gathering program at its November 9, 2004 meeting.

Data collected in this form is the basis of the FCC's reports that measure broadband deployment in the U.S. The FCC issued a release [PDF] that states that the FCC "will require all facilities-based carriers to report, regardless of their size". Previously, small facilities based broadband providers (those with less than 250 lines in a state) were exempted.

The release also states that "broadband providers will be required to provide more detailed information on the speed and nature of their service. The rules also establish broadband-over-power line as a separate category in order to track deployment more closely. To better assess broadband availability, incumbent telephone and cable companies will be asked to report the extent to which their DSL and cable modem service is available where they they provide phone or cable television service."

The FCC release is otherwise silent on Form 477's definition of broadband. It is currently minimal -- 200 kilobits per second, in one direction. However, Commissioner Michael Copps discussed this in his separate statement [PDF]. He wrote that "move away from our passé 200 kbps benchmark for broadband. I have advocated for some time now that we update this standard. By dividing broadband services into speed tiers, we will have data more in line with the speeds available to end-users in our industrialized counterparts. This should help us better understand how we stack up against other countries, particularly the dozen which are ahead of ours in broadband penetration."

Another issue not addressed by the FCC release is the FCC's practice withholding state level data for confidentiality purposes. That is, if there are three or fewer providers in a state, the FCC does not publish the state level data that it has collected. Hence, the tables that set out state level data in the FCC's periodic reports on broadband deployment are full of asterisks. This is particularly the case for smaller and more rural states with few providers. This practice maintains confidentiality, but frustrates policy analysis.

FCC Chairman Michael Powell wrote in a separate statement [PDF] that "The information collected in our Form 477 program is a critical aid in demonstrating that first-generation broadband is being widely deployed throughout the nation."

FCC Commissioner Jonathan Adelstein also wrote a separate statement [PDF]. See also, the FCC's web page titled "Form 477 Reporting Requirements & Deployment Data". This item is FCC 04-266 in WC Docket No. 04-141.

11/10. The Federal Communications Commission (FCC) adopted, but did not release, a Memorandum Opinion and Order at its November 10 meeting that addresses Vonage Holdings Corporation's Petition for Declaratory Ruling regarding its DigitalVoice service in the state of Minnesota. The FCC found that Vonage's voice over internet protocol (VOIP) service, which is named DigitalVoice, is an interstate service, and that Minnesota cannot regulate as it had proposed in a September 2003 order.

This article provides a review of reactions to this order. See also, story titled "FCC Adopts Order on Vonage's VOIP Petition" in TLJ Daily E-Mail Alert No. 1,015, November 10, 2004.

Vonage CEO Jeffrey Citron stated in a release that "This forward-thinking decision from the FCC assures that competition from VoIP is here to stay. Now we can focus our resources exclusively on building an even better service -- rolling out E-911 for all our subscribers, innovating new features and new devices for VoIP, and expanding aggressively around the globe. Because the FCC has acknowledged the reality of the Internet -- which knows no state boundaries and no borders -- more people will enjoy the benefits of Internet phone service."

Michael Gallagher (at right), Administrator of the National Telecommunications and Information Administration (NTIA), stated in a release that this order "is a big step forward for advanced communications in the United States. Voice communications over the Net have been cleared for takeoff. The FCC has acted to keep the Internet -- an inherently global network -- unburdened by costly state regulation. As a result, a rich variety of IP services benefitting U.S. consumers and businesses will be accelerated. Today's vote is going to keep the U.S. on the cutting edge of innovation."

Gary Shapiro, P/CEO of the Consumer Electronics Association, stated in a release that "It is clear that advancement of VoIP services is a key element in driving consumer demand and adoption of broadband. There is a unique synergy between VoIP and broadband that allows each to be used as a purchase incentive for the other. Today's action by the Commission is a strong step toward regulatory clarity, which is needed to advance VoIP services that will provide enormous benefits to consumers and the economy. We commend the FCC's leadership in taking action to avoid a patchwork of state regulations that would stifle the advancement of this new form of communication."

Cisco Systems stated in a release that "This FCC decision represents an important step in the process of enabling the growth of VoIP without unnecessary government regulation. The prospect that 50 different states could have had 50 different sets of regulation for VoIP service would have been crippling to the birth of this important new technology. Cisco is pleased that Chairman Powell and the FCC Commissioners have recognized that VoIP and a myriad of related new services portend a wealth of low cost, compelling consumer services which know no jurisdictional boundaries. This ruling allows for an environment that fosters innovation, which is vital to the growth of new consumer services and the technology industry's continued expansion."

Steve Largent, P/CEO of the Cellular Telecommunications and Internet Association (CTIA), which now also calls itself the Wireless Association, stated in a release that "We applaud the FCC for recognizing the fundamental interstate and international characteristics of IP-enabled services. Much like wireless, one of the primary benefits of IP-enabled service is its ability to deliver data to a consumer at anytime, in any place, from any location with broadband access. CTIA strongly agrees that such services should be free to develop under a single, unified regulatory framework, unencumbered by conflicting state public utility regulations. Furthermore, the competitive and innovative forces driving IP-enabled service to the marketplace will -- like wireless service -- provide consumers with more choices and lower prices."

"The FCC’s action today recognizes the harm that a patchwork of state utility regulations can pose to the development and proliferation of inherently interstate services such as VoIP and wireless. By establishing a uniform, nationwide regulatory framework, IP-enabled services will avoid the costly inefficiencies that accompany a patchwork of inconsistent and varying regulatory schemes. This ruling is of great significance to the consumer seeking these new and innovative services in the most cost-effective manner possible", said Largent.

Robert Sachs, P/CEO of the National Cable & Telecommunications Association (NCTA), stated in a release that "By establishing a national framework for the regulation of Voice over Internet Protocol (VoIP) services, the FCC has taken a significant step towards promoting competition in enhanced voice services.  As facilities-based VoIP providers, cable companies offer consumers sustainable, high quality voice services. We believe the Commission's decision will further incent companies to invest in this exciting new technology."

Walter McCormick, P/CEO of U.S. Telecommunications Association (USTA), stated in a release that this order "is a necessary step to ensure that innovative, borderless communications are not hindered by outdated, conflicting regulatory schemes from fifty-one different local jurisdictions. While this move acknowledges the tremendous changes in communications, in future proceedings the Commission must ensure that market-based competition thrives in an environment where all technologies compete under the same rules. The Commission must also set a competitive framework that encourages investment in the infrastructure and shares the responsibility for maintaining the networks.”

Jonathan Banks of BellSouth stated in a release that "The FCC took a critical step towards encouraging the deployment of IP-enabled services, such as VoIP, by recognizing the inherent interstate nature of such services. The future of these and new, innovative IP-enabled services depends critically on investment in next-generation network facilities. The FCC must act to ensure that the investment these networks require will not be hampered by regulation."

"We encourage the commission to complete in short order the work it has started here by establishing a similar regime for all IP-enabled networks and services in its 'IP-enabled' rulemaking proceeding. Such a decision would go a long way toward eliminating uncertainty and allowing quicker introduction of new and more efficient services." 

James Smith of SBC Communications stated in a release that "Consumers will clearly benefit from a national policy framework that eliminates regulatory roadblocks to the rollout of new generation networks and services. Today's ruling by the FCC appears to be another positive step forward in developing a national policy that ensures consumers will receive innovative and low-priced IP-based services. These innovative IP-based services could be delayed or stymied altogether if 50 states are permitted to saddle these emerging technologies with a hodgepodge of inconsistent and conflicting regulations."

11/10. The Internet Corporation for Assigned Names and Numbers (ICANN) announced that it approved the Asian Domain Name Dispute Resolution Centre (ADNDRC) and the National Arbitration Forum (NAF) as independent dispute resolution providers for the Transfer Dispute Resolution Policy (TDRP). The ICANN stated that this policy is part of the Inter-Registrar Transfer Policy, which will go into effect on November 12, 2004. The ADNDRC is a joint undertaking between the China International Economic and Trade Arbitration Commission (CIETAC) and the Hong Kong International Arbitration Centre (HKIAC). See, ICANN release.

11/10. The Federal Communications Commission (FCC) and the NTIA announced that FCC Chairman Michael Powell and NTIA Administrator Michael Gallagher "met formally to plan and coordinate the efforts of the FCC and the National Telecommunications and Information Administration (NTIA) on spectrum policy issues. The meeting included senior spectrum policy teams from both organizations." See, FCC release, NTIA release, and picture.

11/10. The Department of Homeland Security (DHS) announced that it has "lowered the threat level for the financial services sector in New York City, Northern New Jersey and Washington, D.C. from ‘high’ or Code Orange to ‘elevated’ or Code Yellow. Since the threat level was raised on August 1, 2004 state and local leaders as well as the private sector have worked hard to strengthen security in and around specific buildings and locations as well as throughout the financial services sector." See, DHS release.

11/10. Peter Allgeier, Deputy U.S. Trade Representative, gave a speech to the United States Asia Pacific Council in Washington DC. Among the many topics that he discussed were tariffs and non-tariff barriers by industry sector, including the information technology sector. He said that "We, the United States, and many counties in the Asia Pacific area believe that a formula should be complemented by a sectoral initiative that would be basically tariff elimination in key sectors. And we want to work with the countries of Asia Pacific on that. Among the sectors that there’s been interest in this region are chemicals, gems and jewelry, capital goods and, of course, information technology goods". He added that "In addition to the formula and the sectoral initiatives, there are non-tariff barriers. Obviously you can eliminate tariffs and still find that you can’t get into a market because of non-tariff barriers. Again, this is an area where there is a lot of opportunity for cooperation and work together with Asia and Pacific. ... we’ve done it ... to a certain degree, large degree, in information technology."

11/10. President Bush announced that he will nominate Alberto Gonzales to be the next Attorney General. He will replace John Ashcroft.

Gonzales (at right), is currently White House Counsel. Before that, he served on the Supreme Court of Texas. Before that, he was Secretary of State of Texas, and General Counsel in the office of then Governor George Bush.

President Bush stated at a White House event that "His sharp intellect and sound judgment have helped shape our policies in the war on terror -- policies designed to protect the security of all Americans, while protecting the rights of all Americans. As the top legal official on the White House staff, he has led a superb team of lawyers and has upheld the highest standards of government ethics." See, transcript.

Sen. Orrin Hatch (R-UT), the outgoing Chairman of the Senate Judiciary Committee, stated in a release that "President Bush made an excellent choice by selecting Judge Alberto Gonzales as the next Attorney General of the United States. I have had the pleasure of working closely with Judge Gonzales throughout President Bush's administration. Judge Gonzales' record in Texas and the White House are praise-worthy. His legal, military, government and professional experience has proven to be a great asset to our country during very trying times. I am confident that he will be promptly confirmed and make a superb Attorney General."

11/10. Randy Barrett joined Warren Communications News. He will write for Communications Daily, and write for, and manage, Washington Internet Daily. He previously worked for Interactive Week, and as a free lance writer. He replaces Pat Ross, who became VP for Communications and External Affairs at the Progress & Freedom Foundation (PFF).

The House is in recess until November 16, 2004. See, Republican Whip Notice.

The Senate is in recess until November 16, 2004.

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

12:30 PM. Dan Glickman, Ch/CEO of the Motion Picture Association of America (MPAA), will give a luncheon address titled "The Motion Picture Industry in the 21st Century -- A New Golden Age?". He will discuss the digital delivery of content, and internet piracy of movies. For reservations, call 202 662-7501. Location: National Press Club, 529 14th St. NW, 13th Floor.

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in AT&T Corp v. FCC, No. 03-1431. This is a petition for review of a final order of the FCC regarding AT&T's tarriffs and resellers 800 service plans. See, FCC brief [37 pages in PDF]. Judges Ginsburg, Tatel and Roberts will preside. Location: Prettyman Courthouse, 333 Constitution Ave., NW.

9:30 - 11:30 PM. The American Enterprise Institute (AEI) will host a program titled "Success Taxes, Entrepreneurial Entry, and Innovation". The speakers will be William Gentry (Williams College), William Randolph (Department of the Treasury), Kevin Hassett (AEI), and Eric Engen (AEI). Gentry and Glenn Hubbard (Columbia University) are the authors of a paper [30 pages in PDF] with the same title as the program. They find that "while the level of the marginal tax rate has a negative effect in entrepreneurial entry, the progressivity of the tax also discourages entrepreneurship". See, notice. Location: AEI, 12th floor, 1150 17th St., NW.

10:30 AM. Public Knowledge (PK) will host an event that its describes as a "a press conference ... to discuss copyright legislation in the upcoming lame duck session". The participants will be Gigi Sohn (PK), Gary Shapiro (Consumer Electronics Association), Ed Black (Computer and Communications Industry Association), James Burger (TiVo), and Sarah Deutsch (Verizon). Location: PK, Suite 650, 1875 Connecticut Ave., NW, at Connecticut and T Streets.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its notice of proposed rulemaking (NPRM) to examine the proper number of end user common line charges that carriers may assess upon customers that obtain derived channel T-1 service where the customer provides the terminating channelization equipment and upon customers that obtain Primary Rate Interface (PRI) Integrated Service Digital Network (ISDN) service. This NPRM is FCC 04-174 in WC Docket No. 04-259 and RM-10603. See, notice in the Federal Register, August 13, 2004, Vol. 69, No. 156, at Pages 50141 - 50146.

Deadline for licensees of all site specific licenses operating under part 22, Paging and Radiotelephone Service with "CD" radio service code and all site specific licenses operating in the 929-930 MHz band on exclusive
private carrier paging channels with "GS" radio service to respond to the Federal Communications Commission's (FCC) Wireless Telecommunications Bureau's (WTB) audit letter. See, Public Notice DA 04-3050, and notice in the Federal Register, October 12, 2004, Vol. 69, No. 196, at Page 60626.

Deadline to submit comments to the Department of Commerce's Bureau of Industry and Security (BIS/BXA) in response to its notice of proposed rulemaking (NPRM) regarding amendments to the Export Administration Regulations (EAR). The BIS proposes to amend its EAR to revise the definition of knowledge to incorporate a reasonable person standard, and to replace the phrase "high probability" with "more likely than not". The BIS also proposes to revise the red flags guidance, and provide a safe harbor from liability arising from knowledge under that definition. See, notice in the Federal Register, October 13, 2004, Vol. 69, No. 197, at Pages 60829 - 60836.

The Supreme Court will begin a recess. It will return on Monday, November 29, 2004. See, Order List [14 pages in PDF] at page 14.

6:00 - 9:15 PM. The DC Bar Association will host a continuing legal education (CLE) program titled "How to Litigate an Intellectual Property Case Series, Part 2: How to Litigate a Trademark Case". The speakers will be Shauna Wertheim (Roberts Abokhair & Mardula) and Steven Hollman (Hogan & Hartson). See, notice. Prices vary from $70 to $115. For more information, call 202 626-3488. Location: D.C. Bar Conference Center, B-1 Level, 1250 H Street, NW.

12:15 - 1:30 PM. The Federal Communications Bar Association's (FCBA) Professional Responsibility Committee will host a brown bag lunch. This is an organizational meeting. Location: Paul Hastings, 1299 Pennsylvania Ave., NW, 10th Floor.

Extended deadline to reply submit comments to the Federal Communications Commission (FCC) in response to its Notice of Inquiry (NOI) [15 pages in PDF] regarding "issues relating to the presentation of violent programming on television and its impact on children." This NOI is FCC 04-175 in MB Docket No. 04-261. See, story titled "FCC Issues NOI on Violent TV Programming" in TLJ Daily E-Mail Alert No. 950, August 2, 2004. See also, Order [PDF] extending the deadlines.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its notice of proposed rulemaking (NPRM) regarding "Internet Protocol (IP) Relay and Video Relay Service (VRS), including the appropriate cost recovery methodology for VRS, possible mechanisms to determine which IP Relay and VRS calls are intrastate and which are interstate for purposes of reimbursement, whether IP Rely and VRS should become mandatory TRS services, whether IP Relay and VRS should be required to be offered 7 days a week, 24 hours a day, and whether, when, and how we should apply the speed of answer rule to the provision of VRS." See, notice in the Federal Register, September 1, 2004, Vol. 69, No. 169, at Pages 53382 - 53385. The FCC adopted this NPRM on June 10, 2004, and released it on June 30, 2004. It is FCC 04-134 in CG Docket No. 03-123. Comments are due by October 18, 2004.

Deadline to submit comments for, or requests to participate in, the Federal Trade Commission's (FTC) workshop titled "Peer to Peer File-Sharing Technology: Consumer Protection and Competition Issues". See, FTC release and notice [13 pages in PDF] to be published in the Federal Register.

The House will meet at 2:00 PM. See, Republican Whip Notice.

The Senate will meet at 12:00 NOON.

9:30 AM. The Senate Judiciary Committee will hold a hearing titled "Judicial Nominations". Location: Room 226, Dirksen Building.

9:30 AM - 1:00 PM. The DC Bar Association will host a continuing legal education (CLE) program titled "Essential Checklist for Electronic Discovery". The speakers will be Kenneth Withers (Federal Judicial Center), Robert Eisenberg (CoreFacts), Magistrate John Facciola (U.S. District Court for the District of Columbia), Virginia Llewellyn (LexisNexis Applied Discovery), Jonathan Redgrave (Jones Day). See, notice. Prices vary from $70 to $115. For more information, call 202 626-3488. Location: D.C. Bar Conference Center, B-1 Level, 1250 H St., NW.

10:00 - 11:30 AM. The Federal Communications Commission's (FCC) Media Security and Reliability Council will meet. The event will be webcast by the FCC. The public may submit written comments. See, notice in the Federal Register, July 15, 2004, Vol. 69, No. 135, at Page 42439. Location: FCC, 445 12th St. SW, Room TW-C305 (Commission Meeting Room).

11:00 AM. The Federal Communications Commission's (FCC) International Bureau will hold an event titled "Media briefing on the 10th Anniversary of the FCC’s International Bureau". Bureau Chief Don Abelson will speak. RSVP to Jacki Ponti at Jacki.Ponti@fcc.gov or Meribeth McCarrick at Meribeth.Mccarrick@fcc.gov. Location: FCC, 445 12th Street, SW, Room TW A-402/A-442.

12:00 NOON. The Federal Communications Bar Association's (FCBA) Executive Committee will meet.  Location: Wiley Rein & Fielding, 1776 K St., NW.

12:15 PM. The Federal Communications Bar Association's (FCBA) Cable Practice Committee will host a brown bag lunch. Jon Cody, Legal Advisor to FCC Chairman Michael Powell, will speak. For more information, contact Catherine.Bohigian@fcc.gov. Location: Mintz Levin, 701 Pennsylvania Ave., NW.

9:00 AM - 3:00 PM. The Department of Commerce's (DOC) Bureau of Industry and Security (BIS) will host an event titled "U.S. India High Technology Cooperation Group Dialogue on Defense Technology, Data Privacy, and Export Licensing". See, invitation [PDF], registration form, and agenda. Location: DOC 1401 Constitution Ave., NW.

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in USTA v. FCC, No. 03-1414. This is petition for review of a final order of the FCC pertaining to number portability. See, brief [47 pages in PDF] of the FCC. Judges Sentelle, Randolph and Garland will preside. Location: Courtroom 20, Prettyman Courthouse, 333 Constitution Ave., NW.

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in Ctrl TX Tele Coop v. FCC, No. 03-1405. Judges Sentelle, Randolph and Garland will preside. Location: Courtroom 20, Prettyman Courthouse, 333 Constitution Ave., NW.

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in Covad Communications Co. v. Bell Atlantic Corp., No. 02-7057. Judges Ginsburg, Rogers and Tatel will preside. Location: Prettyman Courthouse, 333 Constitution Ave., NW.

11:00 AM. The Federal Communications Bar Association's (FCBA) Legislation Committee will host an event. The speaker will be Gregg Rothschild (Democratic Counsel, House Commerce Committee). He will speak on legislative issues. RSVP to Helene Marshall at hmarshall@wrf.com. Location: Wiley Rein & Fielding, 1776 K St., NW.

CANCELLED. The Federal Communications Bar Association's (FCBA) will host a breakfast. The speaker will be Jeff Carlisle, Chief of the Federal Communications Commission's (FCC) Wireline Competition Bureau.

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