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January 17, 2005, 9:00 AM ET, Alert No. 1,057.
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6th Circuit Holds That Disclosure of Social Security Numbers by a City Does Not Violate Privacy Act

1/14. The U.S. Court of Appeals (6thCir) issued its opinion [5 pages in PDF] in Schmitt v. Detroit, a Privacy Act cases involving disclosure of social security numbers by the City of Detroit. The Court of Appeals affirmed the District Court in holding that the Privacy only creates a private right of action against the federal government.

The Privacy Act is a large and complex statute that regulates various privacy practices. It includes language, at Section 7(b), that regulates the use of social security numbers. The statute generally applies to the privacy practices of agencies, which are defined as federal entities. Section 7(b) applies to both federal agencies and any "State or local government agency". The Appeals Court, as a matter of construction of the statute, held that there are two definitions that are in conflict, and that the general definition controls.

The Appeals Court also relied heavily upon a Congressional committee report. Hence, Justice Scalia will not be impressed.

The City of Detroit, in the state of Michigan, hired a vendor to mail out municipal tax notices. Detroit provided social security numbers to the vendor, which printed them on the envelopes containing the tax notices. Daniel Schmidt received one such notice.

Schmitt filed a complaint in U.S. District Court (EDMich) against Detroit, several of its employees, and the vendor, alleging violation of Section 7(b) of the federal Privacy Act. He also plead several state law claims, including negligence, emotional distress, and invasion of privacy. He also sought class action status.

The District Court held that Detroit is not an agency within the meaning of the Privacy Act, and therefore, is not subject to the requirements of Section 7(b). The District Court also declined to exercise supplemental jurisdiction over the state law claims, and dismissed them without prejudice. The District Court opinion is published at 267 F. Supp. 2d 718.

Schmitt appealed. The Court of Appeals affirmed.

Privacy Act of 1974 was S 3418 in the 93rd Congress. It became Public Law 93-579. It provides, at Section 7(a), that "It shall be unlawful for any Federal, State or local government agency to deny to any individual any right, benefit, or privilege provided by law because of such individual’s refusal to disclose his social security account number." Section 7(b) provides that "Any Federal, State, or local government agency which requests an individual to disclose his social security account number shall inform that individual whether that disclosure is mandatory or voluntary, by what statutory or other authority such number is solicited, and what uses will be made of it."

These provisions are codified at 5 U.S.C. § 552a notes, while most of the text of the Act is codified at 5 U.S.C. § 552a.

The Appeals Court wrote that these provisions of Section 7(b) are "at odds with another crucial definition of the Privacy Act" that defines the term "agency" with respect to the federal government.

The Appeals Court concluded that "The fact that the Privacy Act contains a section that defines the term “agency” as including only those agencies that fall under control the federal government, coupled with a legislative history that supports such a reading of its scope, forces us to conclude that -- notwithstanding the codification of § 7(b) -- the Privacy Act applies exclusively to federal agencies. Because plaintiff cannot state a cause of action against the City, we hold that his suit was properly dismissed pursuant to Fed. R. Proc. 12(b)(6)."

This case is Daniel Schmidt v. City of Detroit, et al., App. Ct. No. 03-1884, an appeal from the U.S. District Court for the Eastern District of Michigan, at Detroit, D.C. No. 02-74719, Judge Anna Taylor presiding. Judge Alan Norris wrote the opinion of the Court of Appeals, in which Judges Cook and Beckwith joined.

Secretary Evans Rips Red Chinese for IPR Theft

1/13. Secretary of Commerce Donald Evans gave a speech in Beijing, People's Republic of China, in which he stated that "It's time for China's leaders to forcefully confront the problem posed by widespread IPR theft, demand that it stop, and apply the resources to solve the problem."

Donald EvansEvans (at right) stated that "It is absolutely essential that we see demonstrated results from China on IPR protection and the other structural issues that are compromising the Chinese economy in order to establish greater balance in our relationship."

While the speech was blunt and critical, Evans discussed mostly intellectual property rights (IPR) in industry sectors other than information technology. He spoke about automobile manufacturing, drugs, and trademarks on clothing. He did not discuss software or semiconductors in the prepared text of his speech. Although, he did mention pirate sales of video games.

Evans said the the U.S. is "holding up our end of the trading relationship", but that in China "We need to see rapid movement toward a rules-based economy that is transparent, predictable and open to U.S. products, services and investments. Progress toward a level playing field has been incomplete, uneven and unacceptable."

He added that "U.S. companies deserve to have their products and proprietary knowledge protected from theft. Unfortunately, in almost every category of goods capable of being manufactured in China, theft and piracy are costing American companies not only billions in lost sales, but also damage to brand reputation."

He elaborated by providing examples. In one example, a Chinese car maker, that is partly owned by a local government, is making a car that is identical to a car made by GM Daewoo. Evans said that "This incident defies an innocent explanation. The QQ and the Spark are twins because both cars are built from the same DNA -- the proprietary mathematical data and formulas -- that were stolen from GM Daewoo and used to build the QQ."

Evans added, "How can the rule of law take hold when those charged with enforcing the laws are either complicit in or tolerate illegal acts? The key innovations contributed by Chinese companies shouldn't be path-breaking achievements in the art of deception."

A second example is that of Pfizer and a popular drug. Evans said that China's "Patent Review Board later applied a new law retroactively to deny Pfizer's patent", while "phony" and counterfeit drug are available across China.

Third, he cited the example of sale of counterfeit NBA merchandise across the China. Fourth, he cited the example of piracy in the video game industry.

Evans also argued that IPR violations harm China. He said that "Piracy costs the most advanced countries in the world billions. But the fall-out from IPR violations also harms the Chinese economy because a shaky IPR environment discourages additional investment -- in high value industries. As Chinese companies increasingly develop sophisticated products or attempt to build brand names, they face growing vulnerability to IPR crimes."

Evans previously announced his resignation as Secretary of Commerce. President Bush nominated Carlos Gutierrez to replace him. The Senate Commerce Committee held a hearing on his nomination on January 5, 2004. See, story titled "Commerce Committee Holds Hearing on Nomination of Carlos Gutierrez" in TLJ Daily E-Mail Alert No. 1,051, January 6, 2005. The Committee voted to favorably report the nomination the next day. The full Senate is likely to confirm Gutierrez when it meets on January 20, 2005.

Jon Dudas, Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office (USPTO), also traveled to China.

Powell Announces FCC Investigation Regarding Armstrong Williams

1/14. Federal Communications Commission (FCC) Chairman Michael Powell released a statement [PDF] regarding Armstrong Williams. He wrote, in full, as follows:

"In response to recent reports regarding potential violations of the ``payola´´ and sponsorship identification provisions of the Communications Act, I have instructed the Enforcement Bureau to open two investigations:

One into issues regarding commentator Armstrong Williams; and the other into issues regarding station WKSE (FM), Niagara Falls, New York, licensed to a subsidiary of Entercom Communications Corporation.

These provisions govern disclosure and sponsorship identification regarding payments or other consideration in connection with broadcast programs."

Powell did not reference any specific sections of the Communications Act, or regulations promulgated thereunder.

However, 47 U.S.C. § 317 addresses the "Announcement of payment for broadcast". It provides, in part, that "All matter broadcast by any radio station for which any money, service or other valuable consideration is directly or indirectly paid, or promised to or charged or accepted by, the station so broadcasting, from any person, shall, at the time the same is so broadcast, be announced as paid for or furnished, as the case may be, by such person ..." See also, 47 C.F.R. § 73.1212.

Moreover, 47 U.S.C. § 508 addresses "Disclosure of payments to individuals connected with broadcasts". It provides, in part, that "any employee of a radio station who accepts or agrees to accept from any person (other than such station), or any person (other than such station) who pays or agrees to pay such employee, any money, service or other valuable consideration for the broadcast of any matter over such station shall, in advance of such broadcast, disclose the fact of such acceptance or agreement to such station." (Parentheses in original.)

The term "payola" originated in the record industry over 40 years ago as a term to describe secret payments made to disc jockeys and others to broadcast and promote rock and roll music recordings. The Communications Act was amended in 1960 to regulate these practices. See, Public Law No. 86-752 [PDF], at Section 8. This statute also prohibited the fixing of broadcast television game show contests.

In contrast, the relevant broadcast related conduct of Armstrong pertains to political speech. Also, his written column published in newspapers is unaffected by the Communications Act.

Williams wrote in a column published in the web site on January 10 that "In 2003, I agreed to run a paid ad on my syndicated television show, promoting the Department of Education's No Child Left Behind Act. I subsequently used my column space to support that legislation. This represents an obvious conflict of interests. People have used this conflict of interests to portray my column as being paid for by the Bush Administration.  Nothing could be further from the truth." He added that "I supported school vouchers long before the Department of Education ran a single ad on my TV Show."

FCC Commissioner Jonathan Adelstein stated at the FCC's meeting on January 13, 2005 that the FCC should investigate Williams.

GWU to Host Intellectual Property Lecture Series

1/17. The George Washington University Law School (GWULS) will host a series of lectures on intellectual property topics. Each event features the presentation of a draft paper by a professor or scholar, followed by feedback and questions from the audience. All events are free, and open to the public.

On January 27, at 4:00 PM, Scott Kieff, a professor at Washington University's St. Louis School of Law, will present a draft paper titled "Introducing a Case Against Copyright: A Comparative Institutional Analysis of Intellectual Property Regimes". See, abstract of paper, and notice of event.

On February 17, at 4:00 PM, Glynn Lunney, a professor at Tulane University Law School, will present a draft paper titled "Patents and Growth: Empirical Evidence from the States". See, abstract of paper, and notice of event.

On March 3, at 4:00 PM, David Nimmer, of counsel at the law firm of Irell & Manella, will present a draft paper titled "Codifying Copyright Comprehensively". See, notice of event.

On March 24, at 4:00 PM, Sara Stadler (aka Nelson), a professor at Emory University School of Law, will present a draft paper titled "How Copyright is Like a Mobius Strip". See, notice of event.

On April 14, at 4:00 PM, Pamela Samuelson, a professor at the University of California at Berkeley School of Law, will present a draft paper titled "Why Congress Excluded Processes and Systems from the Scope of Copyright". See, notice of event.

Each of these workshops is a part of the Spring 2005 Intellectual Property Workshop Series sponsored by the Dean Dinwoodey Center for Intellectual Property Studies at the GWULS. The location of each of these workshops is GWULS, Faculty Conference Center, Burns Building, 5th Floor, 716 20th St., NW. These workshops are free, open to the public. No RSVP. Free cookies and coffee are provided. For more information, contact Robert Brauneis at 202 994-6138 or

5th Circuit Addresses Copyright Infringement, Factual Copying, Independent Creation, and Substantial Similarity

1/13. The U.S. Court of Appeals (5thCir) issued its opinion [48 pages in PDF] in Positive Black Talk v. Cash Money Records, a music copyright case.

Two rap musicians both recorded a song with the same title. One musician's record company is Positive Black Talk. The other musician's recording company, Cash Money Records, entered into a distribution contract with Universal Records, and that musician's song was made a part of an album that generated revenues of over $40 Million. The first record company, Positive Black Talk, filed a complaint in U.S. District Court (EDLa) against the second record company, Universal, and others, alleging copyright infringement, and a state law claim. The defendants counterclaimed for copyright infringement, and other causes of action.

The District Court, following a jury trial, entered judgment for the defendants on the plaintiff's claims. It also entered judgment for the defendants on their state law counterclaims. However, it entered judgment for the plaintiff on the defendants' infringement counterclaim. It only awarded defendants attorneys fees for a state law claim, but not under 17 U.S.C. § 505.

The opinion addresses the requirement of  17 U.S.C. § 411(a) that a copyright be registered with the Copyright Office before a lawsuit may be filed. The Court held that the Court's jurisdiction was not defeated by a defect in the registration that was cured four days after filing the lawsuit. The opinion also addresses at length the elements of copyright infringement, with a focus on factual copying, independent creation, and substantial similarity. Finally, the opinion addresses the availability of attorneys fees.

This case is Positive Black Talk Inc. v. Cash Money Records Inc., et al., U.S. Court of Appeals for the 5th Circuit, App. Ct. Nos. 03-30625 and 03-30702, appeals from the U.S. District Court for the Eastern District of Louisiana.

Washington Tech Calendar
New items are highlighted in red.
Monday, January 17

The House will not meet. It will next meet on January 20, 2005. See, Republican Whip Notice.

The Senate will not meet. It will next meet on January 20, 2005.

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

12:00 NOON. Deadline to submit reply comments to the Office of the U.S. Trade Representative (USTR) regarding various trade related telecommunications issues. The USTR seeks comments on "Whether any WTO member is acting in a manner that is inconsistent with its commitments under the WTO Basic Telecommunications Agreement or with other WTO obligations", "Whether Canada or Mexico has failed to comply with their telecommunications commitments or obligations under NAFTA", "Whether Chile or Singapore or any other FTA partner with an Agreement that comes into force on or before January 1, 2005 has failed to comply with their telecommunications commitments or obligations under the respective FTAs", "Whether other countries have failed to comply with their commitments under additional telecommunications agreements", and "Whether there remain outstanding issues from previous Section 1377 reviews". See, notice in the Federal Register, Vol. 69, No. 226, Wednesday, November 24, 2004, at Page 68439.

Tuesday, January 18

9:00 AM. The Senate Foreign Relations Committee will hold a hearing on the nomination of Condi Rice to be Secretary of State. Location: Room 216, Hart Building.

3:00 - 4:00 PM. The Economic Development Administration (EDA) and the National Association of Regional Councils (NARC) will host a panel discussion titled "The Marriage of Innovation and Entrepreneurship: A New Model for High-Growth Economic Development". The participants will include Phillip Bond (Under Secretary of Commerce for Technology) and Sandy Baruah (Chief of Staff of the Commerce Department's Economic Development Administration). The event will be telecast. See, notice.

Deadline to submit comments to the Federal Communications Commission (FCC) in response to its Second Further Notice of Proposed Rulemaking (2FNPRM) regarding reducing barriers to secondary markets for spectrum rights. See, notice in the Federal Register, December 27, 2004, Vol. 69, No. 247, at Pages 77560 - 77568. This 2FNPRM is a part of a larger item that the FCC adopted on July 8, 2004, and released on September 2, 2004. See, story titled "FCC Adopts Second Secondary Markets Report and Order" in TLJ Daily E-Mail Alert No. 934, July 9, 2004; and story titled "FCC Releases Second Secondary Markets Report and Order" in TLJ Daily E-Mail Alert No. 969, September 3, 2004. See also, story titled "FCC Sets Comment Deadlines on 2FNPRM Regarding Secondary Markets for Spectrum" in TLJ Daily E-Mail Alert No. 1,045, December 28, 2004.

Wednesday, January 19

8:30 AM - 12:00 NOON. The National Institute of Standards and Technology (NIST) will host a meeting to discuss the policy, privacy, and security issues associated with Homeland Security Presidential Directive-12, titled "Common Identification Standard for Federal Employees and Contractors". See, agenda [PDF]. The event is free and open to the public. However, January 11 is the deadline to register. Contact Sara Caswell at or 301 975-4634. Location: auditorium, Potomac Center Plaza, 550 12th Street, SW (near the Smithsonian and L’Enfant Plaza metro stations).

9:00 AM. The Senate Foreign Relations Committee will hold a hearing on the nomination of Condi Rice to be Secretary of State. Location: Room 216, Hart Building.

9:30 AM. The Senate Judiciary Committee will hold an executive business meeting. Sen. Arlen Specter (R-PA) will preside. See, notice. Location: Room 226, Dirksen Building.

9:30 AM - 5:00 PM. The North American Numbering Council (NANC) will meet. See, FCC notice [PDF] and notice in the Federal Register, December 3, 2004, Vol. 69, No. 232, at Page 70259. Location: FCC, Room TWC305, 445 12th, SW.

9:30 AM - 12:30 PM. The Federal Information Systems Security Educators' Association (FISSEA) will host a workshop on NIST Special Publication 800-16, titled "Information Technology Security Training Requirements: A Role- and Performance-Based Model". See, Part 1 [845 KB in PDF], Part 2 [96 KB in PDF], and Part 3 [374 KB in PDF]. Preregistration is required. See, notice. Location: National Institute of Standards and Technology (NIST), North Building.

POSTPONED. 12:00 NOON. The Federal Communications Bar Association's (FCBA) Common Carrier Practice Committee will host a brown bag lunch. The topic will be the FCC's Remand Order on unbundled network elements. The speakers will include Tom Hughes (SBC) and Praveen Goyal (Covad Communications). RSVP to by Friday, January 7. Location: Hogan & Hartson, Moot Courtroom, 555 13th St., NW. The FCBA has not yet rescheduled this event.

2:00 PM. The Senate Finance Committee will hold a hearing on the nomination of Michael Leavitt to be Secretary of Health and Human Services. Location: Room 215, Dirksen Building.

2:00 - 4:00 PM. The Department of State's International Telecommunication Advisory Committee (ITAC) will meet to prepare for the International Telecommunications Union's (ITU) Telecommunication Standardization Advisory Group (TSAG) meeting. See, the ITU's calendar of meetings. See, notice in the Federal Register, December 20, 2004, Vol. 69, No. 243, at Page 76027. For more information, including the location, contact Julian Minard at Location: undisclosed.

2:00 PM. The Software and Information Industry Association (SIIA) will host an event titled "Improving the Ed Tech RFP: What Works and What Doesn't". See, notice. The price to participate is $40 for non-members of the SIIA. This event will be webcast and telecast only.

2:30 PM. The Senate Energy and Natural Resources Committee will hold a hearing on the nomination of Samuel Bodman to be Secretary of Energy. Location: Room 366, Dirksen Building.

4:00 - 5:00 PM. The President's National Security Telecommunications Advisory Committee (NSTAC) will meet via conference call. The NSTAC addresses issues and problems related to implementing national security and emergency preparedness communications policy. This meeting is be closed to the public. See, notice in the Federal Register, January 4, 2005, Vol. 70, No. 2, at Page 370.

6:30 PM. Federal Communications Bar Association's (FCBA) Young Lawyers Committee will host an event titled "Happy Hour". For more information, contact Jason Friedrich at or 202 354-1340, or Ryan Wallach at or 202 303-1159. Location: Porter's, 1207 19th St., NW.

Thursday, January 20

The House will meet at 10:00 AM. No votes are expected. See, Republican Whip Notice.

The Senate will meet at 3:00 PM. It will begin with a period for morning business, and then proceed to consideration of cabinet nominees. See, Senate calendar. See also, Congressional Inaugural Committee web site.

Inauguration Day. This is not a federal holiday listed in the Office of Personnel Management's (OPM) list of federal holidays. The OPM states that "An employee who works in the District of Columbia, Montgomery or Prince George's Counties in Maryland, Arlington or Fairfax Counties in Virginia, or the cities of Alexandria or Falls Church in Virginia, and who is regularly scheduled to perform non-overtime work on Inauguration Day, is entitled to a holiday. There is no in-lieu-of holiday for employees who are not regularly scheduled to work on Inauguration Day."

The Copyright Office will be closed. The Federal Communications Commission (FCC) will be closed. See, FCC calendar [PDF]. The Department of Justice (DOJ) issued a memorandum stating that its Washington DC area employees may take the day off; however, it is silent on closure of DOJ offices.

Friday, January 21

9:30 AM. The U.S. District Court (DC) will hold a status conference in US v. Microsoft (D.C. No. 1998-cv-01232) and New York v. Microsoft (D.C. No. 1998-cv-01233) Judge Colleen Kotelly will preside. Location: Courtroom 11, Prettyman Courthouse, 333 Constitution Ave., NW.

Deadline to submit to the Federal Communications Commission (FCC) oppositions to petitions to deny the applications of NextWave Telecom and Cellco Partnership dba Verizon Wireless for FCC approval of their proposed transfer of control of broadband Personal Communications Services (PCS) licenses from NextWave to Cellco. See, FCC notice [4 pages in PDF]. This notice is DA 04-3873 in WT Docket No. 04-434.

EXTENDED TO JANUARY 28. Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to the FCC's public notice regarding BellSouth's petition for forbearance from certain Title II and Computer Inquiry requirements. This proceeding is WC Docket No. 04-405. See, notice of extension [PDF].

Deadline for licensees to submit responses to the Federal Communications Commission (FCC) to its second audit letter and notice of cancellation to certain licensees in the paging and radiotelephone service and certain licensees operating on 929-930 MHz exclusive private carrier paging channels. See, notice in the Federal Register, December 21, 2004, Vol. 69, No. 244, at Pages 76469 - 76470.

Monday, January 24

Extended deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its notice of proposed rulemaking (NPRM) regarding service rules for advanced wireless services (AWS) in the 1915-1920 MHz, 1995-2000 MHz, 2175-2180 MHz and 1.7 GHz and 2.1 GHz bands. The FCC adopted this NPRM at its September 9, 2004 meeting, and released the text on September 24, 2004. It is FCC 04-218 in WT Docket No. 04-356 and WT Docket No. 02-353. See, original notice in the Federal Register, November 2, 2004, Vol. 69, No. 211, at Pages 63489-63498, and extension notice in the Federal Register, November 30, 2004, Vol. 69, No. 229, at Pages 69572 - 69573. See also, story titled "FCC Makes Additional 20 MHz of Spectrum Available for Advanced Wireless Services" in TLJ Daily E-Mail Alert No. 975, September 13, 2004.

People and Appointments

1/14. President Bush announced his intent to appoint William Ryan to be a Member of the Board of Directors of the Rural Telephone Bank as a Department of Agriculture representative. See, White House release.

More News

1/11. The U.S. Court of Appeals (DCCir) issued its opinion [11 pages in PDF] in Kay v. FCC, an appeal from a final order of the Federal Communications Commission (FCC) denying James Kay's application for review of the decision of the FCC's Wireless Telecommunications Bureau finding untimely the "finder's preference" request Kay filed involving specialized mobile radio systems (SMR) station WNPA325. The Court of Appeals affirmed the FCC. This case is James Kay v. FCC, App. Ct. No. 04-1014. Judge Henderson wrote the opinion of the Court.

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