Tech Law Journal Daily E-Mail Alert
November 18, 2004, 9:00 AM ET, Alert No. 1,021.
Home Page | Calendar | Subscribe | Back Issues | Reference
House Approves Copyright Royalty and Distribution Act

11/17. The House approved HR 1417, the "Copyright Royalty and Distribution Reform Act of 2004", by a vote of 407-4. See, Roll Call No. 533. The House first approved the Senate's amendment, by a vote of 407-0. See, Roll Call No. 532. This bill replaces copyright arbitration royalty panels (CARPs) with a Copyright Royalty Judge. The bill is now ready for President Bush's signature.

The bill was introduced on March 25, 2003 by Rep. Lamar Smith (R-TX), Rep. Howard Berman (D-CA), and Rep. John Conyers (D-MI).

The House Judiciary Committee's (HJC) Subcommittee on Courts, the Internet, and Intellectual Property (CIIP) held a hearing on CARPs on April 1, 2003. See, prepared testimony of Marybeth Peters, the Register of Copyrights, and story titled "House Subcommittee Holds Hearing on Bill to Replace CARPs" in TLJ Daily E-Mail Alert No. 635, April 2, 2003. It also held a hearing on June 13, 2002.

The HJC found that CARP decisions are unpredictable and inconsistent, CARP arbitrators lack appropriate expertise to render decisions and frequently reflect either a content or user bias, and the CARP process is unnecessarily expensive. See, Report No. 108-408.

The House approved an earlier version of the bill on March 3, 2004. See, story titled "House Passes Copyright Royalty and Distribution Act" in TLJ Daily E-Mail Alert No. 849, March 4, 2004.

The Senate amended and approved the bill on October 6, 2004. See, story titled "Senate Approves Copyright Royalty and Distribution Reform Act" in TLJ Daily E-Mail Alert No. 992, October 7, 2004.

Rep. Lamar SmithRep. Smith, the Chairman of the CIIP Subcommittee, stated on November 17, 2004 that "My bill is necessary to ensure an efficient and effective system for the distribution of copyright royalties." He added that "Today, we have finally reached an agreement that reforms a process that has been too broken for too long. We can look forward to greater creativity, innovation and success in American life when this bill becomes law". See, Smith release.

Sen. Patrick Leahy (D-VT), the ranking Democrat on the Senate Judiciary Committee, spoke in the Senate on November 17. He said that this bill "replaces arbitrators with full-time administrative judges, alleviating the massive financial burden of taking part in a CARP proceeding, and providing the process with continuity and stability. This bill also resolves long-standing disputes over the availability of discovery. Because discovery is available where it is needed, the Copyright Royalty Judges will have the information necessary to render a correct determination, but the costs of discovery will be kept to a minimum. Finally, this bill preserves the traditional role of the Register of Copyrights." See, Congressional Record, November 17, 2004, at Page S11422.

The main difference between the original House version, and the Senate version, is discovery. Rep. James Sensenbrenner (R-WI), the Chairman of the House Judiciary Committee, stated during House debate on the bill on November 17 that "the original House version created greater open-ended discovery of relevant material information over a 60-day period. The changes adopted by the other body make it more difficult for a participant to acquire documents and materials other than statements made by stakeholders and witnesses. In addition, another revision specifically limits the number of interrogatories and depositions that each participant may seek. Both of these changes are consistent with the current trend in administrative law that pares the discovery process. This will save participants time and money." See, Congressional Record, November 17, 2004, at Page H9856.

House Approves DOE Supercomputing Bill

11/17. The House approved HR 4516, the "Department of Energy High-End Computing Revitalization Act of 2004", by voice vote. This is the version of the bill that the Senate approved on October 10, 2004. The bill is now ready for President Bush's signature.

Rep. Judy Biggert (R-IL), sponsor of the bill, stated during House debate that "H.R. 4516 does three things. First, it requires the Secretary of Energy to establish and operate high-end computing facilities involving leadership-class machines that are among the most elite in the world. Second, this bill directs the Secretary to conduct advanced scientific and engineering research and development using these leadership class systems, and to continue to advance the capabilities of high-end computing hardware and software. Finally, the bill requires that these computing facilities be made available on a competitive, peer-reviewed basis to researchers from U.S. industry, institutions of higher learning, national laboratories and other Federal agencies."

Rep. Sherwood Boehlert (R-NY), the Chairman of the House Science Committee, stated in a release that "Supercomputing capability is increasingly becoming a vital component of the efforts of industry and academia to remain global leaders. By supporting the development of the world's fastest computers, and ensuring U.S. researchers and engineers have access to them, H.R. 4516 will strengthen overall U.S. competitiveness and help ensure a healthy, robust economy."

Rep. Boehlert added that "The Science Committee also intends to begin work again early next year on a comprehensive supercomputing bill, like H.R. 4218, the High-Performance Computing Revitalization Act of 2004, which the House passed earlier this year."

The Committee approved HR 4218 by a voice vote at its meeting of June 16, 2004. The Committee held a hearing on HR 4218 on May 13, 2004. See, for example, prepared testimony [PDF] of John Marburger, Director of the White House Office of Science and Technology Policy (OSTP).

DOJ Closes Investigation of Merger of Paging Companies

11/16. The Department of Justice's (DOJ) Antitrust Division announced in a release that it has closed its investigation of Arch Wireless's proposed acquisition of Metrocall. It concluded that paging is a shrinking business, and that there is substantial competition from new and forthcoming technologies.

Arch Wireless and Metrocall are the first and second largest providers of paging services in the U.S., based upon number of customers.

The Antitrust Division stated that "The facts did not support a conclusion that this merger will give a combined Arch/Metrocall market power in the markets in which they compete. Purchasers of paging services will likely continue to have a number of other choices after the merger, including other paging carriers. Although this particular transaction should not threaten to harm competition or consumers, we will continue to be vigilant in our enforcement of the antitrust laws in this area."

The Antitrust Division elaborated that "There has been a substantial decrease in the number of pager units in service over the past five years, declining from more than 45 million units in1999 to under 12 million today. Therefore, the Division focused its investigation on customers that may continue to need to use pagers. None of the theories of competitive harm considered was supported by the facts. The Division found neither likely harm from coordinated interaction nor substantive proof of potential unilateral effects post-merger. The services of other paging carriers and self-provisioning of pager services by customers provide alternatives to the paging services of the merging parties. In addition, new wireless technologies such as wi-fi should continue to broaden the alternatives available to customers of the merging parties."

On November 9, 2004 the Federal Communications Commission (FCC) approved the transfer of licenses associated with this merger. See, Arch Wireless release of November 9, 2004. See also, FCC's web page for this merger review.

The two companies announced their proposed merger on March 29, 2004. See, Arch Wireless release of March 29.

The merged companies will be renamed USA Mobility, Inc. The merged company will also provide wireless e-mail, instant text messaging, mobile internet access, and other services.

People and Appointments

11/17. The Federal Trade Commission (FTC) announced that Bruce Hoffman, the Deputy Director of the FTC's Bureau of Competition, will leave the FTC, effective November 24, 2004, to return to private practice. See, FTC release.

11/17. President Bush announced his intent to nominate Margaret Spellings to be Secretary of Education. She will replace Rod Paige. See, transcript of White House event.

11/16. The Senate confirmed Francis Harvey to be Secretary of the Army by a vote of 85-12. See, Roll Call No. 212.

More News

11/17. The Office of the U.S. Trade Representative (USTR) announced that USTR Robert Zoellick met with Australian Trade Minister Mark Vaile. The Office of the USTR stated in a release [PDF] that they "finalized arrangements to bring the Australia-United States Free Trade Agreement (FTA) into force on January 1, 2005." The USTR release further states, without elaboration, that "The United States had raised concerns with Australia that its FTA implementing legislation, which its Parliament passed in August 2004, did not fully implement a number of the FTA commitments it made on intellectual property. Australia has committed to take steps, including legislative and regulatory changes, to address these issues."

11/18. Federal Reserve Board (FRB) Governor Susan Bies gave a speech in New York, New York titled "Fair Value Accounting". She stated, among other things, that "consideration must be given to revenue-recognition issues in a fair value regime. We must ensure that unearned revenue is not recognized up front, as it inappropriately was by certain high-tech companies not so long ago."

Washington Tech Calendar
New items are highlighted in red.
Thursday, November 18

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.

9:00 AM - 5:30 PM. Day one of a two day conference hosted by the American Bar Association's (ABA) Section of Antitrust Law titled "Fall Forum". See, event web site. Location. National Press Club, 529 14th St. NW, 13th Floor.

9:30 AM. The Senate Commerce Committee will hold a hearing on pending nominations. The agenda includes Jonathan Adelstein. Press contact: David Wonnenberg at 202 224-2670 or david_wonnenberg Location: Room 253, Russell Building.

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 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.

Friday, November 19

The House may meet at 10:00 AM. See, Republican Whip Notice.

9:00 AM - 4:00 PM. The Federal Communications Commission's (FCC) Consumer Advisory Committee will meet. The agenda [5 pages in PDF] includes presentations titled "Accessibility in Broadband Content", "Wireless Solutions for People Who Are Blind or Visually Impaired", "Navigating and Linking to the FCC Website", "Report & Recommendations of the Competition Policy Working Group", "Report of Consumer Complaints, Outreach, Education and Participation Working Group", "Report & Recommendations of Homeland Security Working Group", and "Report & Recommendations of BroadBand DTV Working Group". See also, notice in the Federal Register, October 29, 2004, Vol. 69, No. 209, at Pages 63152 - 63153. Location: FCC, 445 12th St. SW, Room TW-C305 (Commission Meeting Room).

9:30 -11:00 PM. The Progressive Policy Institute (PPI) will host a program titled "The Japanese Broadband Miracle: Are There Lessons for the United States?". The speakers will be Yasu Taniwaki (Economic Counselor and Telecommunications Attaché, Embassy of Japan) and Rob Atkinson (Director of the PPI's Technology and New Economy Project). A light breakfast will be served. RSVP to 202 547-0001 or Location: 600 Pennsylvania Ave., SE, Suite 400.

10:00 AM - 12:00 NOON. The Department of State's (DOS) International Telecommunication Advisory Committee (ITAC) will meet to advise the DOS on policy and technical issues with respect to the International Telecommunication Union (ITU), and in particular, the December 15-17, 2004 meeting of ITU's Telecommunications Development Advisory Group (TDAG) in Geneva, Switzerland. See, notice in the Federal Register, November 5, 2004, Vol. 69, No. 214, at Page 64620. Location: DOS, Room 2533A.

TIME? Jonathan Zittrain (Harvard Law School) will give a lecture titled "Free Software and the Future of the Internet" as part of the Georgetown Law Colloquium on Intellectual Property & Technology Law. For more information, contact Julie Cohen at 202 662-9871 or, or Jay Thomas at 202 662-9925. Location: Georgetown University Law Center, 600 New Jersey Ave., NW.

Monday, November 22

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in Minnesota Christian Broadcasters, Inc v. FCC, No. 03-1439. This case pertains to an auction for a construction permit for a new commercial FM station. Judges Edwards, Sentelle and Garland will preside. See, brief [26 pages in PDF] filed by the FCC on July 27, 2004. Location: Prettyman Courthouse, 333 Constitution Ave., NW.

Deadline to submit reply comments to the Federal Communications Commission's (FCC) Office of Engineering and Technology (OET) in response to Geophysical Survey Systems, Inc.'s (GSSI) request for a waiver of Part 15 of the FCC's rules to permit the higher power operation of ultra-wideband (UWB) non-contact ground penetrating radars (GPRs). See, FCC notice [2 pages in PDF]. This is ET Docket No. 04-374.

Tuesday, November 23

8:30 AM - The National Science Foundation's (NSF) President's Committee on the National Medal of Science will hold a meeting that is closed to the public. See, notice in the Federal Register, November 5, 2004, Vol. 69, No. 214, at Page 64596. Location: Room 1235, NSF, 4201 Wilson Blvd., Arlington, VA.

Thursday, November 25

Thanksgiving Day.

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

There will be no issue of the TLJ Daily E-Mail Alert.

Friday, November 26

There will be no issue of the TLJ Daily E-Mail Alert.

Highlights of ABA Antitrust Law Forum
Thursday, November 18
9:15 - 9:45 AM. Speech by Deborah Majoras (FTC Chairman).
9:45 - 11:15 PM. Panel on mergers. The speakers will include Thomas Barnett (Deputy Assistant Attorney General, Antitrust Division), Bernard Nigro (Deputy Director of the FTC's Bureau of Competition), and others.
11:30 AM - 12:30 PM. Panel on remedies. The speakers will include Bruce Hoffman (Deputy Director of the FTC's Bureau of Competition), Robert Kramer (Director of Operations of the Antitrust Division), and others.
12:30 - 2:00 PM. Luncheon address by Philip Lowe (Director General Competition, European Commission).
2:15 - 3:45 PM. Panel on economics. The speakers will include Luke Froeb (Director of the FTC's Bureau of Economics), Lars-Hendrik Röller (Chief Economist of the European Commission), David Sibley (Deputy Assistant Attorney General, Antitrust Division), and others.
4:00 - 5:30 PM. Panel on international antitrust policy.
Friday, November 19
9:15 - 9:45 AM. Speech by Thomas Barnett (Deputy Assistant Attorney General, Antitrust Division).
9:45 - 11:00 AM. Panel on non-merger matters. The speakers will include Susan Creighton (Director of the FTC's Bureau of Competition), Bruce McDonald (Deputy Assistant Attorney General, Antitrust Division), and others.
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.