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April 1, 2005, 9:00 AM ET, Alert No. 1,107.
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Intel Accepts Recommendation of Japanese FTC Regarding Anticompetitive Marketing Practices

3/31. Intel announced that its Japanese subsidiary, Intel Kabushiki Kaisha (IJKK), accepts the March 8, 2005 recommendation from the Japan Fair Trade Commission (JFTC).

The JFTC wrote in a March 8 English language release [3 pages in PDF] that it "requires IJKK to cease and desist its conducts which violate Section 3 of the Antimonopoly Act".

The JFTC stated that IJKK sells Intel X86 central processing units (CPUs) to Japanese original equipment manufacturers (OEMs). It continued that IJKK has made these OEMs refrain from buying CPUs from Intel's competitors through its use of rebates and a market development fund.

The recommendation compels IJKK to stop certain practices related to these rebates and fund.

Intel added in its March 31 statement that "Although IJKK accepts the Recommendation, the company does not agree with the facts underlying the JFTC's allegations and the application of law in the Recommendation. IJKK continues to believe its business practices are both fair and lawful, but the company believes that the cease and desist provisions of the Recommendation will not impair it from continuing to meet customer requirements."

USTR Releases Report on Anti-Competitive Regulations in Telecom Sector

3/31. The Office of the U.S. Trade Representative (USTR) released a document [10 pages in PDF] titled "Results of the 2005 Section 1377 Review of Telecommunications Trade Agreements".

Peter AllgeierPeter Allgeier (at right), the acting USTR, stated in a release that "We are deeply concerned by the tepid commitment some of our trade partners have shown to competition in the telecommunications sector. This is especially true in countries such as China, India and Japan where national operators are already competing on a global level, but remain protected at home by relatively closed markets. It is very hard to see a legitimate reason why these markets should not be open to full and effective competition".

The report focuses on the costs of interconnecting calls to wireless networks, restrictions on access to leased lines and submarine cable capacity, regulatory requirements, burdensome testing and certification requirements, and the governmental mandate of particular technical standards.

The report criticizes the People's Republic of China's burdensome regulations. It states that the "USTR has serious concerns regarding licensing requirements maintained by China that severely restrict the ability of U.S. telecommunications companies to compete in the Chinese marketplace. USTR urges China to take steps as soon as possible to: (a) eliminate burdensome capitalization requirements; (b) specifically authorize the offering of basic services on a purely resale basis; and (c) eliminate restrictions on the entities with whom a foreign licensee can partner." The PRC requires a domestic capitalization of about $240 Million, which the USTR states has no justification.

The report criticizes India regarding access to use of submarine cable capacity. It states that "problems persist based on the continued control by India’s dominant international operator, VSNL, over access to all but one submarine cable landing station in India. Commenters argue that VSNL’s persistent refusal to permit interconnection at its cable landing stations, and its failure to activate additional capacity on these cables, result in artificial shortages of bandwidth into and out of India and inflate prices, hampering the provision of robust global telecommunications services."

The report criticizes Japan's high mobile interconnection rates, which are "about 11 to 13 cents per minute, depending on the point of interconnection". The report states that "These rates represent a 3 percent annual decrease and follow last year’s 4 percent cut, which shows a slowing rate of change that may soon put Japan’s rates well above most OECD levels. These rates are already three times the level of its neighbor, Korea."

The report also addresses the lack of technology neutrality in wireless standards. First, it addresses the PR China, and its Ministry of Information Industry (MII). The report states that "By the end of this year, MII is expected to announce terms and conditions for new mobile wireless licenses in the 2 GHz band. Despite MII’s repeated assurances that it will award licenses on a technology-neutral basis, there is widespread concern that MII will reserve up to two of the likely four licenses for China’s home-grown 3G standard, TD-SCDMA. USTR continues to urge China to leave technology choice decisions to operators and not use these decisions as an opportunity to exercise protectionist industrial policy."

The report also states that "Korea’s regulator, the Ministry of Information and Communications (MIC), recently awarded three licenses for a broadband wireless service (“WiBro”) and established a requirement that all licensees use a single standard selected by the Korean Government. This has had the effect of limiting the scope of technology that can be marketed in Korea, thus limiting licensee and consumer choice, as well as the ability of U.S. and other firms with proven technologies to compete in this dynamic market."

This report does not examine U.S. telecommunications regulators.

The USTR has also published in its web site the public comments, and reply comments, that it received.

Bush Seeks Extension of Trade Promotion Authority

3/31. President Bush wrote a letter to the Speaker of the House, and the President of the Senate, in which he asked the Congress to extend trade promotion authority (TPA) for two years. The current TPA expires on July 1, 2005. The request was anticipated.

TPA gives the President the authority to negotiate trade agreements that the Congress can approve or reject, but not amend.

Bush wrote that "We must continue to pursue bilateral and regional agreements to open new markets, and we must complete negotiations in the World Trade Organization to reduce global barriers to trade. We will continue to enforce vigorously the trade laws so that American businesses and workers are competing on a level playing field."

Bush to Nominate Alice Fisher to Head DOJ's Criminal Division

3/29. President Bush announced his intent to nominate Alice Fisher to be Assistant Attorney General in charge of the Department of Justice's (DOJ) Criminal Division. She is currently an attorney at the law firm of Latham & Watkins. If confirmed by the Senate, she will replace Christopher Wray. See, White House release.

She began her legal career as an associate attorney at the law firm of Sullivan & Cromwell. She then worked as Deputy Special Counsel to the U.S. Senate Special Committee to Investigate Whitewater Development and Related Matters. Sen. Hillary Clinton (D-NY), whom she investigated, will have the opportunity to vote for or against her confirmation. In 1996 she went to work for Latham & Watkins. However, from 2001 through 2003, she was one of the Deputy Assistant Attorneys General in the Criminal Division.

The DOJ's Criminal Division is important for technology for several reasons. First, there is the USA PATRIOT Act. Title II of the Act contains many provisions related to electronic surveillance and new technologies. Also, many of the sections of Title II sunset at the end of this year. The Congress will extend the terms of, and perhaps make substantive amendments to, many of these sections. The Criminal Division will likely represent the DOJ and the Bush administration during this legislative process.

The Criminal Division also includes the Computer Crimes and Intellectual Property Section (CCIPS), which prosecutes crimes related to computer hacking, unauthorized access to computers, and related activities.

The CCIPS is also responsible for criminal enforcement of intellectual property laws.

Note on Terminology. TLJ uses the phrase "Assistant Attorney General in charge of the Criminal Division" to describe the Assistant Attorney General (AAG) who leads the Criminal Division. TLJ uses similar terminology for other AAGs. The positions of "Assistant Attorney General" exist by statute. However, there is no statutory position of "Assistant Attorney General in charge of the Criminal Division". Nor are there similar positions for other DOJ divisions. By practice, one AAG is in charge of Criminal Division. Moreover, Presidents announce at the time of a nomination of a person to be an AAG which division that person will lead. Hypothetically, someone who is an AAG, and in charge of the Criminal Division, could be reassigned to lead the Antitrust Division, or another division. Although, some Senators would complain loudly.

More People and Appointments

3/29. President Bush announced his intent to nominate Rachel Brand to be Assistant Attorney General in charge of the Office of Legal Policy at the Department of Justice (DOJ). She is now the Principal Deputy Assistant Attorney General in the OLP. She has previously worked as Associate Counsel to the President, for the law firm of Cooper Carville & Rosenthal, which is now Cooper & Clark, and for Supreme Court Justice Anthony Kennedy. The responsibilities of the OLP relate to, among other things, the screening, selection and confirmation of judicial nominees. See, White House release.

3/29. President Bush announced his intent to nominate Regina Schofield to be Assistant Attorney General in charge of the Office of Justice Programs (OJP) at the Department of Justice (DOJ). She is currently Director of Intergovernmental Affairs and White House Liaison at the Department of Health and Human Services. See, White House release.

3/29. President Bush announced his intent to nominate Philip Perry to be General Counsel at the Department of Homeland Security (DHS). If confirmed by the Senate, he will replace Joe Whitley. Perry is an attorney in the Washington DC office of the law firm of Latham & Watkins. He is a partner in the litigation section, where he focuses on government contracts. He has also worked in short stints at the Office of Management and Budget (OMB), where he was General Counsel, and before that, at the Department of Justice (DOJ), where he was briefly the acting Associate Attorney General; that is, he oversaw several of the key non-criminal divisions at the DOJ, including the Antitrust Division and the Civil Division. See, White House release.

3/31. President Bush announced his intent to nominate Gordon England to be Deputy Secretary of Defense. He is currently Secretary of the Navy. He has also been Deputy Secretary of Homeland Security. Before coming to Washington DC, he worked for General Dynamics. See, White House release.

3/31. President Bush announced his intent to nominate Eric Edelman to be Under Secretary of Defense for Policy. He is a career Foreign Service officer. See, White House release.

3/29. Mark Hurd was named P/CEO of Hewlett Packard. He previously worked for NCR, most recently as P/CEO. See, HP release.

There was no issue of the TLJ Daily E-Mail Alert on Thursday, March 31, 2005.
Washington Tech Calendar
New items are highlighted in red.
Friday, April 1

The House will not meet. It will return from its Spring recess at 2:00 PM on Tuesday, April 5. See, House calendar.

The Senate will not meet. It will return from its Spring recess at 2:00 PM on Monday, April 4. See, Senate calendar.

12:15 PM. The Federal Communications Bar Association's (FCBA) Wireless Practice Committee will host a luncheon. The topic will be "Intercarrier Compensation". The speakers will be Diane Cornell (CTIA), Charles McKee (Sprint), James Ramsey (National Association of Regulatory Utility Commissioners), and Gerry Duffy (Alliance). The price to attend is $15. Send RSVP's and/or cancellations to Wendy Parish at by 5:00 PM on Wednesday, March 30. For more information, contact Adam Krinsky at akrinsky at wbklaw dot com. Location: 6th Floor, Sidley Austin, 1501 K Street, NW.

Day four of a four day conference of the American Bar Association's Section on Antitrust. See, agenda [PDF]. Location: JW Marriott Hotel and Willard Hotel.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Report and Order and Further Notice of Proposed Rulemaking (FNPRM) [54 pages in PDF] regarding the children's programming obligations of digital television broadcasters. This item is FCC 04-221 in MM Docket 00-167. See, story titled "FCC Adopts Report and Order Re Children's Programming Obligations of DTV Broadcasters" in TLJ Daily E-Mail Alert No. 975, September 13, 2004.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to BellSouth's petition for pricing flexibility for switched access services. See, FCC Public Notice DA 05-740 in WC Docket No. 05-148.

Monday, April 4

The Senate will return from its Spring recess. See, Senate calendar.

The Supreme Court will begin a recess. It will return on Monday, April 18. See, Order List [12 pages in PDF] at page 12.

The American Bar Association's Section on Public Utility, Communications and Transportation Law will host a one day conference. At 10:45 AM there will be a panel titled "Voice Over Internet: Molding a Regulatory Structure from Legacy Regulations". The scheduled speakers include William Banks Wilhelm (counsel for Vonage), Chris Libertelli, and Keith Epstein (SBC). At 3:15 PM Sen. Larry Craig (R-ID) is scheduled to speak. See, agenda [PDF]. Location: PEPCO Holdings Conference Center, 701 9th Street, NW.

11:00 AM - 12:00 NOON. The Advisory Committee for the 2007 World Radiocommunication Conference will meet. Location: FCC, Room TW-C305 (Commission Meeting Room), 445 12th St., SW.

Tuesday, April 5

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in VM Tech v. Compaq Computer, No. 04-1436. Location: Courtroom 402, 717 Madison Place, NW.

10:00 AM - 12:00 NOON. The Department of State's International Telecommunication Advisory Committee (ITAC) will meet to prepare for the Organization of American States' (OAS) Inter-American Telecommunication Commission's (CITEL) Permanent Consultative Committee II meeting in Guatemala to be held in April 2005. See, notice in the Federal Register, December 30, 2004, Vol. 69, No. 250, at Pages 78515-78516. For more information, including the location, contact Cecily Holiday at or Anne Jillson at Location: undisclosed.

6:00 - 8:15 PM. The DC Bar Association will host a continuing legal education (CLE) program titled "Legal Beat: How to Use Music Legally in a Business". The scheduled speaker is Joy Butler (Sashay Communications). See, notice. Prices vary from $70 to $124. For more information, call 202 626-3488. Location: D.C. Bar Conference Center, B-1 Level, 1250 H St., NW.

Wednesday, April 6

9:00 AM - 1:00 PM. The Department of Commerce (DOC) will host a half day workshop on radio frequency identification (RFID) technology. See, DOC notice [PDF]. Location: DOC, 1401 Constitution Ave., NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Network Commerce v. Microsoft, No. 04-1445. Location: Courtroom 402, 717 Madison Place, NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Hynix Semiconductor v. U.S., No. 04-1417. Location: Courtroom 402, 717 Madison Place, NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in In Re, No. 04-1447. This is an appeal from the U.S. Patent and Trademark Office's (USPTO) Trademark Trial and Appeal Board 's (TTAB) disposition [28 pages in PDF] affirming the denial of an application to register the mark The TTAB held that it "is merely descriptive and generic for the services recited in the application and that applicant has not demonstrated that it has acquired distinctiveness". Location: Courtroom 203, 717 Madison Place, NW.

Thursday, April 7

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in AT&T v. Microsoft, No. 04-1285. This is an appeal from the U.S. District Court (SDNY) in a patent infringement case. Location: Courtroom 203, 717 Madison Place, NW.

12:15 - 2:00 PM. The Forum on Technology and Innovation will host a panel discussion titled "The Future of U.S. Manufacturing - Does Making Anything Matter in the 21st Century". See, notice and registration pages. Lunch will be served. Location: Reserve Officers Association, 5th floor, One Constitution Ave., NE.

Friday, April 8

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in Program Suppliers v. Librarian of Congress, No. 04-1070. Judges Sentelle, Randolph and Tatel will preside. Location: Prettyman Courthouse, 333 Constitution Ave., NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Korszun v. Public Technologies Multimedia, No. 04-1504. This is an appeal from the U.S. District Court (DConn) in a software patent case. Location: Courtroom 402, 717 Madison Place, NW.

12:00 NOON - 2:00 PM. The Progress and Freedom Foundation (PFF) will host a panel discussion titled "The Indecency Debate: Should Congress Extend Broadcast Rules to Other Media?". The speakers will include Adam Thierer (PFF), Marsha MacBride (National Association of Broadcasters), Jill Luckett (National Cable Telecommunications Association). See, notice and registration pages. Location: Room B389, Rayburn Building, Capitol Hill.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its notice of proposed rulemaking (NPRM) [460 pages in PDF] in its proceeding titled "In the Matter of: Implementation of the Satellite Home Viewer Extension and Reauthorization Act of 2004 Implementation of Section 340 of the Communications Act". See also, FCC release [PDF]. This NPRM is FCC 05-24 in MB Docket No. 05-49. The FCC adopted this NPRM on February 4, 2005, and released it on February 7, 2005. See, story titled "FCC Releases SHVERA NPRM Regarding Significantly Viewed Signals" in TLJ Daily E-Mail Alert No. 1,073, February 9, 2005.

Deadline to submit initial comments to the Federal Communications Commission (FCC) to assist it in preparing its annual report to the Congress regarding progress made to achieve the objectives and carry out the purposes and provisions of Open-Market Reorganization for the Betterment of International Telecommunications Act (ORBIT Act). See, FCC notice [PDF]. This proceeding is IB Docket No. 04-158.

5th Circuit Dismisses Appeal of Class Action Certification Order in Baldridge v. SBC

3/29. The U.S. Court of Appeals (5thCir) issued an opinion [PDF] in Baldridge v. SBC Communications, a class action case brought by employees of Cingular Wireless seeking overtime pay under the Fair Labor Standards Act (FLSA). The Appeals Court dismissed for lack of appellate jurisdiction.

Lindsey Baldridge and other named plaintiffs are employees of Cingular Wireless. (Cingular is a joint venture of SBC and BellSouth.) The filed a complaint in U.S. District Court (EDTex) alleging violation of the FLSA. They also sought class action status. The District Court issued an order certifying the class, pursuant to the class action provision of the FLSA, which is codified at 29 U.S.C. § 216(b), but narrowed its scope. The District Court also scheduled a further hearing on class certification.

The District Court did not certify its order for appeal. The plaintiffs nevertheless brought this interlocutory appeal. The Court of Appeals dismissed the appeal for lack of jurisdiction.

28 U.S.C. § 1291 provides in part that "The courts of appeals ... shall have jurisdiction of appeals from all final decisions of the district courts of the United States ..." That is, the general rule is that the Court of Appeals can only hear an appeal from a "final decision". The Court of Appeals wrote that "an order conditionally certifying a class and authorizing notice is not a final decision, terminating the litigation and allowing appeal under § 1291."

The Court continued that this interlocutory appeal does not fit the collateral order exception to the final judgment rule of of Section 1291 articulated by the Supreme Court in its 1949 decision in Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, because the District Court's order does not conclusively determine the disputed question.

Rule 23(f) of the Federal Rules of Civil Procedure, provides, in part, that "A court of appeals may in its discretion permit an appeal from an order of a district court granting or denying class action certification under this rule if application is made to it within ten days after entry of the order. ..." However, the Appeals Court held that Rule 23 is inapplicable, because the present action is based upon the class action language of the FLSA.

The case proceeds in the District Court.

This case is Lindsey Baldridge, et al. v. SBC Communications, et al., U.S. Court of Appeals for the 5th Circuit, App. Ct. No. m 04-10819, an appeal from the U.S. District Court for the Northern District of Texas (NDTex).

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