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January 27, 2005, 9:00 AM ET, Alert No. 1,064.
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House Commerce Committee Holds Hearing on Spyware Bill

1/26. The House Commerce Committee held a hearing titled "Combating Spyware: HR 29, the SPY Act". Witnesses expressed support for, or did not oppose, the bill. No members of the Committee criticized or expressed opposition to the bill. Rep. Joe Barton (R-TX), the Chairman, stated that the full Committee will mark up the bill, probably in a few weeks. Said Barton, "this is on the fast track".

Rep. Mary Bono (R-CA) and others introduced HR 29, the "Securely Protect Yourself Against Cyber Trespass Act", or SPY Act, on January 4, 2005. It is substantially identical to the bill that the House, but not the Senate, approved late last year.

The House approved HR 2929, also titled the SPY ACT, by a vote of 399-1 on October 5, 2004. See, Roll Call No. 495. HR 2929 was the House Commerce Committee's spyware bill. HR 29 (109th Congress), like HR 2929 (108th Congress) prohibit certain conduct with respect to spyware, and gives the FTC civil enforcement authority. See also, story titled "House Passes First Spyware Bill" and story titled "Summary of House Commerce Committee Spyware Bill" in TLJ Daily E-Mail Alert No. 991, October 6, 2004.

The House approved HR 4661 (108th Congress), the "Internet Spyware (I-SPY) Prevention Act of 2004", by a vote of 415-0 on October 6, 2004. See, Roll Call No. 503. This was the House Judiciary Committee's bill. It amends Title 18 to provide criminal penalties for certain conduct related to spyware. See, story titled "House Approves Second Spyware Bill" in TLJ Daily E-Mail Alert No. 993, October 8, 2004.

HR 29 contains two sets of prohibitions. First, Section 2 prohibits deceptive acts or practices related to spyware. Second, Section 3 prohibits collection of certain information without notice and consent.

Industry witnesses at the hearing suggested the Section 3 could use some revision.

Prohibition of Deceptive Acts or Practices. Section 2 provides that "It is unlawful for any person, who is not the owner or authorized user of a protected computer, to engage in deceptive acts or practices that involve any of the following conduct with respect to the protected computer:"

Section 2 then enumerates nine categories of such deceptive acts or practices, including taking control of a computer, modifying settings related to a computer's access to the internet, collecting personally identifiable information through keystroke logging, and removing, disabling, or rendering inoperative a security, anti-spyware, or anti-virus technology.

Section 2 also prohibits "Inducing the owner or authorized user to provide personally identifiable, password, or account information to another person -- (A) by misrepresenting the identity of the person seeking the information; or (B) without the authority of the intended recipient of the information." This might be characterized as an anti-phishing, rather than anti-spyware, provision. This language was revised by the manager's amendment.

Prohibition of Collection of Certain Information Without Notice and Consent. Section 3 prohibits the collection of certain information without notice and consent. It provides that "it is unlawful for any person (1) to transmit to a protected computer, which is not owned by such person and for which such person is not an authorized user, any information collection program, unless -- (A) such information collection program provides notice in accordance with subsection (c) before execution of any of the information collection functions of the program; and (B) such information collection program includes the functions required under subsection (d)". It also provides that "it is unlawful for any person ... (2) to execute any information collection program installed on such a protected computer unless -- (A) before execution of any of the information collection functions of the program, the owner or an authorized user of the protected computer has consented to such execution pursuant to notice in accordance with subsection (c); and (B) such information collection program includes the functions required under subsection (d)."

Section 3 also requires that "each information collection program" must allow users to easily "remove the program or disable operation of the program".

Section 3 also requires that "each information collection program" must have an "identity function". That is, it requires that "each display of an advertisement directed or displayed using such information when the owner or authorized user is accessing a Web page or online location other than of the provider of the software is accompanied by the name of the information collection program, a logogram or trademark used for the exclusive purpose of identifying the program, or a statement or other information sufficient to clearly identify the program."

Exemptions and Limitations on Liability. Sections 3 and 5 of the bill include exemptions and limitations on liability.

First, Section 3 provides that "A telecommunications carrier, a provider of information service or interactive computer service, a cable operator, or a provider of transmission capability shall not be liable under this section to the extent that the carrier, operator, or provider -- (1) transmits, routes, hosts, stores, or provides connections for an information collection program through a system or network controlled or operated by or for the carrier, operator, or provider; or (2) provides an information location tool, such as a directory, index, reference, pointer, or hypertext link, through which the owner or user of a protected computer locates an information collection program."

Second, Section 5 contains a very broad law enforcement exemption. It provides that "Sections 2 and 3 of this Act shall not apply to (1) any act taken by a law enforcement agent in the performance of official duties".

Third, it contains a network security exemption. Section 5(b) now provides that "(1) any monitoring of, or interaction with, a subscriber's Internet or other network connection or service, or a protected computer, by a telecommunications carrier, cable operator, computer hardware or software provider, or provider of information service or interactive computer service, to the extent that such monitoring or interaction is for network or computer security purposes, diagnostics, technical support, or repair, or for the detection or prevention of fraudulent activities; or (2) a discrete interaction with a protected computer by a provider of computer software solely to determine whether the user of the computer is authorized to use such software, that occurs upon -- (A) initialization of the software; or (B) an affirmative request by the owner or authorized user for an update of, addition to, or technical service for, the software."

Fourth, it contains a limitation on liability for certain providers of software or interactive computer services that attempt to remove programs that violate Sections 2 or 3.

Finally, the bill exempts programs that are installed as of the effective date of the bill.

Enforcement and Preemption. The bill gives rulemaking and civil enforcement authority to the Federal Trade Commission (FTC). It also allows the FTC to issue advisory opinions, and requires the FTC to submit annual reports to the Congress.

The bill preempts state laws that contain provisions similar to those contains in Sections 2 and 3. However, it does not preempt the applicability of state trespass, contract, or tort laws.

No members of the Committee criticized the bill. However, a few raised specific sections of the bill. Both Rep. Nathan Deal (R-GA) and Rep. John Shadegg (R-AZ) discussed the preemption language. They are concerned that states not be overly restricted in bringing actions against distributors of spyware.

Statements by Committee Members. Rep. Barton, Rep. Cliff Stearns (R-FL), the Chairman of the Subcommittee on Commerce, Trade and Consumer Protection, and Rep. Janice Schakowsky (D-IL), the ranking Democrat on the Subcommittee, all praised the bill.

Rep. John Dingell (D-MI), the ranking Democrat on the full Committee, was not present. Nor is he currently a cosponsor. Rep. Bono, the lead sponsor of HR 2929 and HR 29, did not attend the hearing, due to illness.

Rep. Anna Eshoo (D-CA), who criticized an earlier version of the bill last summer, stated that she supports the bill as it is currently written.

Rep. Ted Strickland (D-OH), who cast a no vote in committee last summer, attended this hearing. He did not express criticism of the bill. However, he did ask the witnesses whether this bill will deter innovation in e-commerce.

Rep. Darrell Issa (R-CA) also voted against HR 2929 in committee last summer. He did not attend the January 26 hearing. Rep. Bart Stupak (D-MI) also voted no last summer. He attended this hearing, but said nothing.

Rep. Joe BartonRep. Barton (at right) also spoke with reporters after the hearing. He said that the Committee still needs to get written comments, digest those, and perhaps make some minor technical changes. There will then be no subcommittee markup. "We will go straight to full Committee", said Rep. Barton, "very quickly".

He said that "We think that the bill, as is, would be good public law. But, we drafted our bill so that it is strictly within our jurisdiction." That is, the House Judiciary Committee has jurisdiction over criminal penalties. He added that "We have got a good relationship with Mr. Sensenbrenner, and Mr. Goodlatte, and Mr. Coble, and Mr. Smith and others."

He also compared the House bill to legislation in the Senate. "We certainly think that our approach is the preferable approach. We have got a lot of broader based support. We have worked a lot harder to work with the various stakeholders." Barton said that "The House is ahead of the Senate on where the country is on this bill, on this issue."

He also said that "The chances in the Senate are excellent. I have talked to Sen. Burns. I have talked to Sen. McCain. I have talked to Sen. Wyden. I have talked to Sen. Dodd. They are all very interested in moving a bill."

"Sen. Burns, especially, has told me that he is going to make this a priority. Sen. Wyden is very supportive too."

Rep. Barton said that at this hearing "We didn't get anything today that is a show stopper issue." Any changes made to the bill before markup will be "kind of second and third degree liability issues, and things like that, not anything major". He added that "What we are talking about are really definitional issues, and clarification. ... There is no primary issue that is outstanding."

Barton concluded that last year "This bill passed 399 to 1. And nobody has been complaining that it passed. This is a bill that you will see the President signing sometime this year, or a version of this. I am not saying this specific bill. A bill dealing with this issue will be on the President's desk sometime this year."

Witness Testimony. The Committee heard testimony from Ari Schwartz (Center for Democracy and Technology), Ira Rubenstein (Microsoft), David Baker (Earthlink), and Howard Schmidt (R&H Security Consulting).

Schwartz stated in his prepared testimony [12 pages in PDF] that "H.R. 29 marks a substantial step forward in addressing many of the concerns of consumer groups and companies. CDT is generally supportive of the current bill. In particular, we strongly endorse the idea of raising penalties on and calling specific attention to the worst types of deceptive software practices online. CDT is less enthusiastic about the specific notice and consent requirements on adware and information collection programs, because of the definitional difficulties in crafting such a regime narrowly targeted at certain classes of software. We look forward to continuing to work with the Committee to help improve these element of the bill."

Baker stated that "we appear here today in support of the efforts of Congresswoman Bono, her cosponsors adn this Committee to re-introduce this year's H.R. 29 the SPY ACT. Prohibiting the installation of software with a user's consent, requiring uninstall capability, establishing requirements for transmission pursuant to license agreements, and requiring notices for collection of personally identifiable information, intent to advertise and modification of user settings are all steps that will empower consumers and keep them in control of their computers and their online experience."

Rubenstein said that spyware is a problem, but that anti-spyware tools are helping consumers. He also said that public education, enforcement of existing laws, and industry standards are also important elements in addressing the problem of combating spyware.

He said that federal legislation can be an effective complement to these other items. He did, however, express several general concerns about legislative proposals, which he says are addressed in the present bill.

During questioning, Rubenstein added that he is concerned that the Congress not create safe harbors for certain practices. That is, if a certain spyware related practice or application is not prohibited under the bill, this should not provide a safe harbor for the distributor against efforts by others to block it.

More Information. The CDT's Ari Schwartz stated to reporters after the hearing that the Congress has already passed, or is considering, a large number of technology specific privacy bills, covering telephone service, cable service, satellites, video cassettes (but not DVDs), spam, spyware, radio frequency identification, and other technologies. He said that rather than proceeding technology by technology, the Congress should enact one comprehensive privacy bill that addresses what is collected, and how it is used.

Mike Zaneis, of the U.S. Chamber of Commerce, spoke after the hearing with TLJ. He stated that the U.S. Chamber is comfortable with this spyware bill. However, he added that the U.S. Chamber remains concerned about the cookie language, and the damages liability language, and hopes that these sections will be revised before final passage in the House.

For examples of criticism of this bill, see story titled "Cato Panel Criticizes Spyware Bills" in TLJ Daily E-Mail Alert No. 1,013, November 8, 2005.

2nd Circuit Holds That ISP Did Not Violate ECPA When It Acquired E-Mail of Customer With Terminated Account

1/25. The U.S. Court of Appeals (2ndCir) issued its opinion [13 pages in PDF] in Hall v. Earthlink Network, a dispute regarding an e-mail service provider's termination of service. The District Court granted judgment to Earthlink. The Court of Appeals affirmed.

The Appeals Court held that, for the purposes of the ECPA's prohibition of interception of electronic communications, ISPs do not intercept the e-mail messages of their customers, if they are acting within the ordinary course of their businesses. This might seem like an obvious conclusion. However, the language of the 1986 ECPA, if applied literally, suggests a different conclusion. The Court followed legislative intent, and the principle that absurd results are to be avoided, in applying the statute.

Peter Hall, the plaintiff in the District Court, and the appellant before the Court of Appeals, had an e-mail account with Earthlink. Hall also wrote and produced a minor movie. He used his e-mail account in an attempt to promote the movie. Earthlink terminated his service, at the time of a film festival, on the grounds that he was sending spam, in violation of its terms of service. Earthlink soon reversed itself, and offered to reinstate the account. It also acquired many messages sent to Hall's account, and then gave them to Hall.

Hall filed a complaint in U.S. District Court (SDNY) alleging violation of the Electronic Communications Privacy Act (ECPA), which is a federal claim, and several state law claims -- breach of contract, libel, breach of the covenant of good faith and fair dealing, negligent appropriation of electronic communication, intentional interference with electronic communication, and prima facie tort.

The District Court held that Earthlink's actions did not violate the ECPA. It also held that since Hall's claim for consequential damages was too tenuous to be recoverable, and since his actual damages were small, he failed to meet the minimum jurisdictional amount in controversy for diversity claims.

The Court of Appeals affirmed. It held that Earthlink did not violate the ECPA, which is codified at 18 U.S.C. § 2510, et seq. The basic prohibitions are found at 18 U.S.C. § 2511.

Earthlink acquired and held Hall's e-mail communications. § 2511 provides that anyone who "intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication ... shall be punished" under the statute.

Nevertheless, the Court of Appeals held that Earthlink's actions did not amount to interception. It noted that § 2510(4) provides that "intercept" means "the aural or other acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device". Then, § 2510(5) excepts "any telephone or telegraph instrument, equipment or facility, or any component thereof ... being used by a provider of wire or electronic communication service in the ordinary course of its business ..."

The Court explained that "EarthLink acquired the contents of electronic communications but did so in the ordinary course of business and thus did not use ``any electronic, mechanical, or other device´´ as defined by the statute."

The Court rejected a literal interpretation of the statute, as urged by Hall, that the ordinary course of business exception does not apply to Earthlink because it did not use a "telephone or telegraph instrument" in acquiring Hall's e-mail.

The Court reasoned that "At the time ECPA was enacted in 1986, ISPs directed e-mail over telephone wires and were therefore included in the ordinary course of business exception." But, the technology has advanced since passage of the ECPA, and it was the intent of Congress to apply the exception to ISPs.

The Court also reasoned that "an interpretation that excludes ISPs from the ordinary course of business exception should be avoided because it would lead to an absurd result. ... If ISPs were not covered by the ordinary course of business exception, ISPs would constantly be intercepting communications under ECPA because their basic services involve the ``acquisition of the contents´´ of electronic communication."

This case is Peter Hall and Big Bad Productions, Inc. v. Earthlink Network, Inc., U.S. Court of Appeals for the 2nd Circuit, App. Ct. No. Docket No. 04-0384-cv, an appeal from the U.S. District Court for the Southern District of New York, Judge Richard Owen presiding. Judge Pooler wrote the opinion of the Court of Appeals, in which Judges Straub and Wesley joined.

Cisco Prevails in Corporate Raiding Case

1/26. The U.S. Court of Appeals (8thCir) issued its opinion [13 pages in PDF] in Storage Technology v. Cisco Sytems, a dispute over corporate raiding. The District Court granted summary judgment Cisco, whose predecessor had hired away engineers of Storage Technology. The Appeals Court affirmed.

NuSpeed Internet Systems was founded in late 1999 to develop a product to link computers at one location to data storage networks at other locations through the Internet or other Wide Area Network using Internet Protocols, and a new open Internet protocol, iSCSI, which is short for Internet Small Computer Systems Interface. In 1999 and 2000 NuSpeed hired 22 engineers employed by Storage Technology, which was also developing data storage networking products. Shortly thereafter, NuSpeed was acquired by Cisco Systems for $450 Million in a stock for stock transaction.

Storage Technology filed a complaint in U.S. District Court (DMinn) against Cisco alleging corporate raiding by hiring Storage Technology's engineers who had knowledge that Cisco used in developing its product, interference with contractual relations for hiring away persons with whom Storage Technology had employment contracts, inducing breach of contracts, conversion of confidential information, encouraging breach of fiduciary duties by former Storage Technology employees, and misappropriation of trade secrets.

Storage Technology argued that it was entitled to recover, as restitution, the alleged unjust enrichment of NuSpeed, which it claimed was the $450 Million acquisition price.

The District Court, exercising diversity jurisdiction, granted summary judgment to Cisco on all claims. The Court of Appeals affirmed.

The Appeals Court wrote the the claims fail because, under Minnesota state law, Storage Technology failed to produce evidence substantiating any amount of damages or restitution.

This case is Storage Technology Corporation v. Cisco Sytems, Inc., U.S. Court of Appeals for the 8th Circuit, App. Ct. No. 03-3673, an appeal from the U.S. District Court for the District of Minnesota, Judge Joan Ericksen presiding. Judge John Gibson wrote the opinion of the Court of Appeals, in which Judges Loken and Bye joined.

Copps Addressess Media Concentration

1/26. Federal Communications Commission (FCC) Commissioner Michael Copps delivered a speech [6 pages in PDF], electronically, to the National Association of Television Program Executives regarding media concentration. He said that "Fewer companies own and control more media properties. Big companies already control radio, television, newspapers and cable – cable systems and cable channels. They own the production of programming. They own its distribution. Increasingly, they control creativity itself."

Michael Copps"I believe we have the opportunity to make a difference this year", said Copps (at right). "The Third Circuit Court of Appeals ruled last summer that the FCC's new rules were legally and procedurally flawed. ... That's the good news. The bad news is that these rules were sent back to -- guess where? -- the very Commission that dreamed them up in the first place. So an entirely plausible outcome of all this could be rules every bit as bad as the ones sent back to us. Maybe even worse."

Copps also stated that "this issue may also come up as the Commission considers the public interest obligations of DTV broadcasters, hopefully this year. As we make the transition to digital television, there is a crying need to update our rules on the public interest obligations of those who are granted the privilege to use the people’s spectrum for digital television, particularly those who will multi-cast up to six program streams. The potential of DTV to advance diversity is enormous and I believe its rewards, for everyone, can be enormous."

FCC States That Unbundling Rules Will Be Released by February 4

1/26. The Federal Communications Commission (FCC) filed a pleading with the U.S. Court of Appeals (DCCir) in USTA v. FCC, a case pertaining to the FCC's unbundling rules. This pleading states that "Chairman Powell intends and expects that the order will be released no later than February 4, 2005."

On December 15, 2004, the FCC adopted, but did not release, an Order on Remand regarding incumbent local exchange carriers' (ILECs) obligations under 47 U.S.C. § 251 to make their network elements available on an unbundled basis. At that time, the FCC issued only a short release [2 pages in PDF]. This item is FCC 04-290 in WC Docket No. 04-313 and CC Docket No. 01-338. See also, story titled "FCC Adopts Unbundling Order" in TLJ Daily E-Mail Alert No. 1,039, December 16, 2004.

The Order on Remand that the FCC represents will be released on February 4, 2005, contains the rules that the Court last March directed the FCC to write. On March 2, 2004, the U.S. Court of Appeals (DCCir) issued its opinion [62 pages in PDF] in USTA v. FCC, overturning key parts of the FCC's 2003 triennial review order (TRO). See also, story titled "Appeals Court Overturns Key Provisions of FCC Triennial Review Order" in TLJ Daily E-Mail Alert No. 848, March 3, 2004.

Washington Tech Calendar
New items are highlighted in red.
Thursday, January 27

The House will not meet. It will next meet at 2:00 PM on Friday, January 28. See also, Republican Whip Notice.

The Senate will not meet. It will next meet at 1:00 PM on Monday, January 31, 2005.

The Supreme Court is in recess until February 22, 2005.

12:00 NOON. The Federal Communications Bar Association's (FCBA) State and Local Practice Committee will host a brown bag seminar titled "Current State Regulatory Issues: An Update". The speakers will be Tom Pugh (Commissioner of the Minnesota Public Utilities Commission), Beth Keating (attorney, Florida Public Service Commission), Robert Mayer (New York Public Service Commission), and Tammy Cooper (Administrative Law Judge, Texas Public Utility Commission). For more information, contact Erick Soriano at 202 939-7921 or Location: Fleischman & Walsh, 1919 Pennsylvania Ave., NW, Suite 600.

12:00 NOON - 1:30 PM. The DC Bar Association will host a brown bag lunch titled "Current Topics in Entertainment Law: Anti-Piracy and Film Financing Incentives". The speakers will be David Green (Motion Picture Association of America) and Michele LeBlanc (LeBlanc & Associates), and Aoi Nawashiro (Browdy & Neimark). See, notice. Prices vary from $20 to $30. For more information, call 202 626-3463. Location: D.C. Bar Conference Center, B-1 Level, 1250 H St., NW.

10:00 AM. The Department of State's International Telecommunication Advisory Committee (ITAC) will meet to prepare for the International Telecommunications Union's ITU-T Study Group 17 (security, languages and telecommunication software) meeting, and the ITU-T Study Group 4 (telecommunication management). See, the ITU's calendar of meetings. See, notice in the Federal Register, December 20, 2004, Vol. 69, No. 243, at Page 76027. Location: Communication Technologies, Inc. (COMTek), 14151 Newbrook Dr., Suite 400, Chantilly, VA.

2:00 - 4:00 PM. The Department of State's International Telecommunication Advisory Committee will meet to discuss the meeting of the ITU Council's Ad Hoc Group on Cost Recovery for Satellite Network Filings that will take place March 21-22, 2005 in Geneva, Switzerland. See, notice in the Federal Register, January 13, 2005, Vol. 70, No. 9, at Page 2450. Location: Room 6 South (6B516), Federal Communications Commission (FCC), 445 12th St., SW.

2:00 PM. The Information Technology Association of America (ITAA) will host an event titled "Michelin Worldwide: Rolling with an RFID Strategy". See, notice. For more information, contact Eerik Kreek, This event will be webcast only.

4:00 PM. Scott Kieff (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. This event is part of the Spring 2005 Intellectual Property Workshop Series sponsored by the Dean Dinwoodey Center for Intellectual Property Studies at the George Washington University Law School (GWULS). For more information, contact Robert Brauneis at 202 994-6138 or The event is free and open to the public. Location: GWULS, Faculty Conference Center, Burns Building, 5th Floor, 716 20th St., NW.

4:00 PM. The Cato Institute will host a book forum on Seth Mnookin's book titled Hard News: The Scandals at The New York Times and Their Meaning for American Media [Amazon]. The speakers will be Mnookin and Jack Shafer (Slate). A reception will follow the event. See, notice. Location: Cato, 1000 Massachusetts Ave., NW.

TIME? There will be a meeting of the Executive Office of the President's (EOP) Office of Science and Technology Policy's (OSTP) National Science and Technology Council's (NSTC) Committee on Science's Subcommittee on Research Business Methods. The meeting is closed to the public. For more information, contact Megan Columbus at 301 435-0937. Location: undisclosed.

Extended deadline to file with the Federal Communications Commission (FCC) first round DTV channel election forms. This proceeding is titled "In the matter of Second Periodic Review of the Commission’s Rules and Policies Affecting the Conversion To Digital Television". This is MB Docket No. 03-15. See, FCC order extending deadline [PDF].

Effective date of the Copyright Office's final rule regarding reconsideration procedure. See, notice in the Federal Register, December 28, 2004, Vol. 69, No. 248, at Pages 77636 - 77637.

Friday, January 28

No votes are scheduled in the House. The motion to adjourn of January 26 provided that the next meeting would be at 2:00 PM on January 28. See also, Republican Whip Notice.

The Senate will not meet.

7:30 AM. Secretary of Homeland Security Tom Ridge will speak to the Council for Excellence in Government on community preparedness. Open press. Location: Crystal Room, Willard Inter-Continental Hotel, 14th Street and Pennsylvania Ave., NW.

Deadline to submit to the Federal Communications Commission (FCC) replies to 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 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].

EXTENDED TO MARCH 14. Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Public Notice [4 pages in PDF] (DA 04-3891) of December 14, 2004 seeking comments on the report of Avatar Environmental, LLC regarding migratory bird collisions with communications towers. See, Public Notice [2 pages in PDF] (DA 04-4021) of December 22, 2004 extending deadlines. This proceeding is WT Docket No. 03-187.

Monday, January 31

12:30 PM. Eliot Spitzer, Attorney General of New York, will give a luncheon address. Location: National Press Club, 529 14th St. NW, 13th Floor.

Extended deadline to submit reply comments to Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) [38 pages in PDF] regarding use by unlicensed devices of broadcast television spectrum where the spectrum is not in use by broadcasters. See, story titled "FCC Adopts NPRM Regarding Unlicensed Use of Broadcast TV Spectrum" in TLJ Daily E-Mail Alert No. 898, May 14, 2004, and story titled "FCC Releases NPRM Regarding Unlicensed Use of TV Spectrum" in TLJ Daily E-Mail Alert No. 905, May 26, 2004. This NPRM is FCC 04-113 in ET Docket Nos. 04-186 and No. 02-380. See, notice (setting original deadlines) in the Federal Register, June 18, 2004, Vol. 69, No. 117, at pages 34103-34112; first notice [PDF] of extended deadlines; erratum [PDF]; and December 22, 2004 Public Notice [PDF] (DA 04-4013) further extending the deadline for reply comments to January 31.

Deadline to submit comments to the Securities and Exchange Commission (SEC) in response to its Notice of Proposed Rulemaking (NPRM) regarding disseminate information to investors during the securities offering process. The NPRM states that "Significant technological advances over the last three decades have increased both the market's demand for more timely corporate disclosure and the ability of issuers to capture, process, and disseminate this information. Computers, sophisticated financial software, electronic mail, teleconferencing, videoconferencing, webcasting, and other technologies available today have replaced, to a large extent, paper, pencils, typewriters, adding machines, carbon paper, paper mail, travel, and face-to-face meetings relied on previously. Our evaluation of the securities offering process and procedural enhancements seeks to recognize the integral role that technology plays in timely informing the markets and investors about important corporate information and developments."

Deadline to submit applications and nominations to the Federal Communications Commission (FCC) for membership on the FCC's Consumer Advisory Committee (CAC). See, Public Notice [PDF] (DA 04-3892) and notice in the Federal Register, December 29, 2004, Vol. 69, No. 249, at Pages 78024 - 78025.

Deadline to submit comments to the Office of the U.S. Trade Representative's (USTR) Trade Policy Staff Committee (TPSC) regarding "general U.S. negotiating objectives as well as country-, product-, and service-specific priorities for the multilateral negotiations and work program in the Doha Development
Agenda (DDA) negotiations conducted under the auspices of the World Trade Organization". See, notice in the Federal Register, December 9, 2004, Vol. 69, No. 236, at Pages 71466 - 71468.

Tuesday, February 1

10:15. The U.S. District Court (DC) will hold a status conference in USA v. Microsoft, No. 98-1232 (CKK). See, rescheduling order. Location: Prettyman Courthouse, 333 Constitution Ave., NW.

12:00 NOON - 1:30 PM. The DC Bar Association will host a brown bag lunch titled "Entertainment Law: The Year In Review". The speakers will be Maurita Coley and David Silverman (both of Cole Raywid & Braverman). See, notice. Prices vary from $20 to $30. For more information, call 202 626-3463. Location: D.C. Bar Conference Center, B-1 Level, 1250 H St., NW.

Deadline to submit applications to the U.S. Department of Agriculture's (USDA) Rural Utilities Service (RUS) for Distance Learning and Telemedicine (DLT) grants. See, notice in the Federal Register, December 3, 2004, Vol. 69, No. 232, at Pages 70217 - 70222; and notice in the Federal Register, January 18, 2005, Vol. 70, No. 11, at Pages 2844 - 2849.

Wednesday, February 2

9:30 AM - 12:00 NOON. The Department of State's International Telecommunication Advisory Committee (ITAC) will meet to prepare for the International Telecommunications Union's ITU-T Study Group 2 (Service Definitions, Numbering, Routing, and Global Mobility) meeting. See, the ITU's calendar of meetings. See, notice in the Federal Register, December 30, 2004, Vol. 69, No. 250, at Pages 78515-78516. For more information, including the location, contact Location: undisclosed.

10:00 AM. The Senate Committee on Homeland Security and Government Affairs will hold a hearing on the nomination of Michael Chertoff to be Secretary of Homeland Security. See, notice. Location: Room 342, Dirksen Building.

10:30 AM. The House Ways and Means Committee will meet to adopt Committee rules, approve the Committee budget, approve the Committee oversight plan, and make subcommittee assignments. See, notice. Location: Room 1100, Longworth Building.

10:45 AM. The House Education and Workforce Committee will meet to adopt the committee's rules and oversight plan. Location: Room 2175, Rayburn 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.

Deadline to register for the Federal Communications Bar Association's (FCBA) February 8 continuing legal education (CLE) seminar titled "Communications Law 101". See, registration form [PDF].

Thursday, February 3

12:00 NOON - 1:30 PM. The DC Bar Association's Intellectual Property Law Section will host a brown bag lunch titled "What's Hot and What's Not on Capitol Hill?". The topic is the prospects in the 109th Congress for intellectual property bills, such as the the Family Movie Act, Art Act, PIRATE Act, CREATE Act, Inducing Infringement of Copyright Act, Digital Media Consumers' Rights Act, Piracy Deterrence & Education Act, and Stop Counterfeiting in Manufactured Goods Act. The scheduled speakers are Paul Martino (Majority Counsel for Senate Commerce Committee's Subcommittee on Communications), David Strickland (Senior Counsel for Senate Commerce Committee's Subcommittee on Competition & Consumer Affairs), Jonathan Meyer (Counsel to Sen. Joe Biden), Robert Brauneis (George Washington University Law School), and Barbara Berschler. See, notice. Prices vary from $10 to $30. For more information, call 202 626-3463. Location: D.C. Bar Conference Center, B-1 Level, 1250 H St., NW.

1:30 - 3:30 PM. The WRC-07 Advisory Committee's Informal Working Group 2: Satellite Services and HAPS will meet. See, FCC notice [PDF]. Location: Leventhal Senter & Lerman, 7th Floor Conference Room, 2000 K St. NW.

TIME? The Judicial Conference of the United States (JC) will hold a public hearing on its proposed amendment to Bankruptcy Rule 5005 regarding electronic filings. The JC has proposed amendments to Civil Rule 5, Appellate Rule 25, and Bankruptcy Rule 5005. Each of these proposed amendments would permit the applicable court, by local rules, to "permit or require papers to be filed, signed, or verified by electronic means" (or similar language). Current rules provide that the applicable court may "permit" filing by electronic means. See, JC notice [PDF] and notice in the Federal Register, Federal Register, December 2, 2004, Vol. 69, No. 231, at Page 70156. Location: undisclosed.

People and Appointments

1/26. The Senate Judiciary Committee voted to favorably report the nomination of Alberto Gonzales to be Attorney General by a vote of 10-8. It was a straight party line vote, with the Democrats on the Committee voting against confirmation.

1/26. The Senate voted to confirm Condi Rice to be Secretary of State by a vote of 85-13. See, Roll Call No. 2. She took the oath of office later in the day. Secretary Rice was previously President Bush's National Security Advisor. President Bush previously announced that he will nominate Robert Zoellick, the current U.S. Trade Representative (USTR), to be Deputy Secretary of State.

More News

1/26. President Bush held a long press conference. He did not discuss, and no one asked him about, any technology related issues. See, transcript.

1/25. Sun Microsystems announced that the source code for the Solaris 10 operating system "will be made available under the OSI (Open Source Initiative) approved Common Development and Distribution License (CDDL)". See, Sun release.

1/21. Jonathan Schwartz, P/COO of Sun Microsystems, wrote a letter to Sam Palmisano, Ch/CEO of IBM, in which he stated that IBM is "withholding support" for Sun's Solaris 10 operating system, and that this is a "vendor lock-in strategy" designed to trap customers into using only IBM's proprietary Power5 platform. See, Schwartz's company blog.

1/24. The American Society of Composers, Authors and Publishers (ASCAP) announced in a release that it filed 24 separate complaints against nightclubs, bars, and restaurants alleging copyright infringement in connection with the public performance of  the copyrighted musical works of ASCAP’s songwriter, composer and music publisher members without receiving permission.

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