|FCC Announces Short Agenda for August 4
7/28. The Federal Communications Commission (FCC) released
[PDF] for its event titled "Open Meeting", scheduled for Thursday, August 4,
First, the FCC will consider a Notice of Inquiry (NOI)
concerning the effects of anticompetitive conduct and circuit disruption by
foreign carriers on U.S. international routes.
Second, the FCC will consider a NOI that requests comments to
assist it in preparing its 12th annual report on the status of competition in
the market for the delivery of video programming.
Third, the FCC will consider an Order on Reconsideration
regarding its service rules for advanced wireless services in the 1710-1755 MHz
and 2110-2155 MHz bands. This is WT Docket No. 02-353.
As with other recent events, the agenda for this event is short
and non-controversial. With the departure of Michael Powell, there are two
Democrats and two Republicans. More significant FCC decisions are likely to be
delayed until there are again five Commissioners. This will not likely be soon.
The Senate, which must confirm any nominee for FCC Commissioner, is on recess
until after Labor Day. Then, the Senate will have some other major items on its
Fall agenda, including consideration of the nomination of John Roberts to be a
Justice of the U.S. Supreme Court.
This event is scheduled for 9:30 AM on Thursday, August 4, 2005 in
the FCC's Commission Meeting Room, Room TW-C305, 445 12th Street, SW. The event will
be webcast by the FCC. The FCC does not always take up all of the items on its
agenda. The FCC does not always start its monthly meetings at the scheduled time.
The FCC usually does not release at its meetings copies of the items that its
adopts at its meetings.
|Chertoff Discusses Statute Limiting Liability for
Developers of Anti-Terrorism Technologies
7/28. Secretary of Homeland Security
gave a speech in Santa
Clara, California, to the Commonwealth Club of
California in which he discussed technology
and the provisions in the Homeland Security Act of 2002 that limit liability for
certain anti terrorism technologies. He also addressed cyber security.
Companies that develop and sell anti terrorism technologies could face
lawsuits, and massive liability, when terrorist attacks occur. This gives would
be technology developers a disincentive to develop anti terrorism related
technologies. The SAFETY Act, which is a part of the Homeland Security Act,
pertains to this problem. However, its effectiveness in incenting technology
development may be limited by several things.
For example, it only offers protection to "qualified anti-terrorism
technologies". That is, the developer must first obtain certification from the
Department of Homeland Security (DHS). The
lengthy and burdensome regulatory review process has resulted in few
certifications. Also, once the developer qualifies, the limitation on liability
is only partial. Secretary Chertoff stated the the DHS "not done enough to take
advantage" of the SAFETY Act's provisions.
The Congress enacted the "Support Anti-terrorism by Fostering Effective
Technologies Act of 2002", or SAFETY Act, as Subtitle G of Title VII of the
"Homeland Security Act of 2002", or HSA. The HSA was
HR 5005 in
the 107th Congress. It is now Public Law No. 107-296.
The SAFETY Act provides that "There shall exist a Federal cause of action
for claims arising out of, relating to, or resulting from an act of terrorism when
qualified anti-terrorism technologies have been deployed in defense against or
response or recovery from such act and such claims result or may result in loss
to the Seller."
It then provides that "Such appropriate district court of the United States
shall have original and exclusive jurisdiction over all actions for any claim
for loss of property, personal injury, or death arising out of, relating to, or
resulting from an act of terrorism when qualified anti-terrorism technologies
have been deployed in defense against or response or recovery from such act and
such claims result or may result in loss to the Seller."
The SAFTETY Act also prohibits the award of punitive damages. It also limits
non-economic damages. It provides that "Noneconomic damages may be awarded
against a defendant only in an amount directly proportional to the percentage of
responsibility of such defendant for the harm to the plaintiff, and no plaintiff
may recover noneconomic damages unless the plaintiff suffered physical harm."
The SAFETY Act provides no protection in any litigation brought by
governmental authority under a criminal statute. Nor does it provide any
limitation on liability in civil actions if the defendant "attempts to commit
... any criminal act".
The Act also creates a "rebuttable presumption that the government contractor
defense applies" in product liability litigation, but only for "qualified
anti-terrorism technologies approved by the Secretary".
Chertoff (at left)
stated that "Technology can play a role in the detection of a threatened nuclear attack.
Technology can be deployed in the form of biological sensors throughout our cities to detect
the release of dangerous toxins. Technology provides the ability to screen passengers with
just the simple swipe of a finger or screen cargo without ever opening a lid."
"Of course to realize the full benefits technology has to offer, we are
looking beyond the walls of DHS -- to the private sector, to the high tech world.
To the innovators who have made our world so much smaller, we are now looking to
you to help make it that much safer."
Chertoff continued that "we recognize our responsibility to support and aid
these efforts in any way we can. For example, three years ago, Congress passed the SAFETY
Act to enable our private sector partners to develop innovative technology to protect the
homeland without the fear of unduly high transaction costs imposed by the possibility of
He concluded that "we have not done enough to take advantage of this
powerful tool to spur new technologies and new systems. We are streamlining the application
process and working to deploy incentives under the SAFETY Act more broadly, with
the hope that these changes will motivate the private sector to take full
advantage of this tool."
Cyber Security. Chertoff stated that "when it comes to securing the
cyber systems that connect and control much of our infrastructure, we depend on
our technology providers to take a direct role and partner with us in cyber risk
assessment and mitigation to achieve the measure of security we all desire." He
added that "the vast majority of our cyber assets are privately owned and
operated. It therefore follows that security cannot take the form of government
dictates, but must be the product of strong partnership work and disciplined
He said that "There are several steps we must take. These include maintaining
and enhancing a robust cyberspace response system, furthering information
sharing and supporting working partnerships between government and industry –
operationally and on strategic issues such as software assurance and corporate
governance. In addition, we must work to integrate cyber priorities into our
infrastructure protection plans and prepare ourselves to respond to new
Chertoff added that "we are working to finalize a National Infrastructure
Protection Plan that will offer baseline preparedness plans and response
protocols for seventeen critical infrastructure sectors and resources including
Information Technology, Agriculture, Water, and Energy. We’re working closely
with a variety of stakeholders to develop our plan for the IT portion, but we’re
also looking at the kind of impact IT has on other infrastructures."
|Appeals Court Affirms in Telemarketing Sales
7/27. The U.S. Court of Appeals
(7thCir) issued its
opinion [12 pages in PDF] in FTC v. World Media Brokers, a
telemarketing sales rule case involving the sale of Canadian lottery tickets by
telephone to consumers in the U.S. This is not legal. Yet, the telemarketers
deceived consumers about this. The Court of Appeals affirmed the District
Court's $19 Million judgment against both corporate defendants, and two individuals.
The Court's opinion sets for the circumstances under which individuals can be held
liable for the deceptive acts of corporations under the FTC Act.
The U.S. Federal Trade Commission (FTC)
filed a complaint [PDF]
in U.S. District Court (NDIll) on
September 30, 2002, against World Media Brokers, related corporate entities and
dbas, and its principals, alleging violation of § 5(a) of the FTC Act, which is
codified at 15 U.S.C. § 45(a). It prohibits unfair or deceptive acts or
practices in or affecting commerce. The complaint also alleged violation of §§
13(b) and 19 of the FTC Act, 15 U.S.C. §§ 53(b) and 57b, the Telemarketing and
Consumer Fraud and Abuse Prevention Act, 15 U.S.C. § 6101-6108, and the FTC
Telemarketing Sales Rule (TSR), 16 C.F.R. § 310.1-9.
The District Court entered judgment against five corporate entities, and two
principals, George Yemec and Anita Rapp, individually. It enjoined further violations
of the law, and ordered the payment of $19 Million in consumer redress.
The Appeals Court affirmed. It held that individuals can be held liable for
the deceptive practices of a corporation in violation of § 5(a) of the FTC Act
if it demonstrates that "the individual defendants either participated directly
in the deceptive acts or practices or had authority to control them". The Court
continued that the FTC "must also prove that the individual defendants either
knew or should have known about the deceptive practices, but it is not required
to prove subjective intent to defraud. ... Instead, the FTC may fulfill the
knowledge requirement with evidence that the individuals had ``actual knowledge
of material misrepresentations, reckless indifference to the truth or falsity of
such misrepresentations, or an awareness of a high probability of fraud along
with an intentional avoidance of the truth.´´" (Citations omitted.)
This case is Federal Trade Commission v. World Media Brokers, et al.,
U.S. Court of Appeals for the 7th Circuit, App. Ct. No. 04-2721, an appeal from
the U.S. District Court for the Northern District of Illinois, Eastern Division,
D.C. No. 02 C 6985, Judge Amy St. Eve presiding. Judge Rovner wrote the
opinion of the Court of Appeals, in which Judges Bauer and Easterbrook joined.
|4th Circuit Reinstates Hatfill's Defamation
Suit Against NYT
7/28. The U.S. Court of Appeals
(4thCir) issued its divided
pages in PDF] in Hatfill v. New York Times, a defamation case. The
District Court dismissed for failure to state a claim. A three judge panel of
the Court of Appeals reversed. Judge Niemeyer dissented.
The Department of Justice has not prosecuted anyone for mailing letters
containing anthrax spores in the fall of 2001. However, the Federal
Bureau of Investigation (FBI) has investigated Steven Hatfill, a research
scientist who is a germ warfare specialist.
Nicholas Kristoff is employed by the New York Times (NYT), a daily newspaper.
Kristoff wrote on numerous occasions about the 2001 anthrax mailings, and the
FBI's investigation. Hatfill asserts that this defamed him.
Hatfill filed a complaint in U.S.
District Court (EDVa) against the NYT and Kristoff alleging defamation and
intentional infliction of emotional distress, under Virginia state law. Hatfill
dismissed the claims against Kristoff, on the basis that the court lacks
personal jurisdiction over him.
The District Court dismissed the claims against the NYT for failure to state
a claim upon which relief can be granted, pursuant to Rule 12(b)(6) of the
Federal Rules of Civil Procedure. Hatfill appealed.
The Court of Appeals reversed. Judge Dennis Shedd wrote the opinion for the
majority. He quoted extensively from Kristoff's pieces in the NYT, and concluded that
the complaint adequately alleges claims for defamation and intentional infliction of
emotional distress, based upon the courts construction of the Kristoff pieces.
Judge Niemeyer wrote a dissent. He argued that
Kristoff criticized the FBI's handling of the investigation of Hatfill, and the
Kristoff argued that the FBI should have been pursuing certain leads regarding
Hatfill, but that Kristoff never accused Hatfill of sending the anthrax, or
committing a crime. He would have affirmed the District Court's dismissal.
Christopher Wright of the law firm of
Harris Wiltshire & Grannis argued
the case for Hatfill. Wright is a former General Counsel of the
Federal Communications Commission (FCC).
This case is Steven Hatfill v. The New York Times Company and Nicholas
Kristoff, U.S. Court of Appeals for the 4th Circuit, App. Ct. No. 04-2561, an appeal
from the U.S. District Court for the Eastern District of Virginia, D.C. No. CA-04-807-A,
Judge Claude Hilton presiding. Judge Dennis Shedd wrote the opinion of the Court of Appeals,
in which Judge Wilkins joined. Judge Niemeyer dissented.
|There was no issue of the TLJ Daily E-Mail Alert on Friday, July 29, 2005.
|Washington Tech Calendar
New items are highlighted in red.
|Monday, August 1
The House will not meet on Monday, August 1 through Monday, September 5. See,
and Republican Whip Notice.
The Senate will not meet on Monday, August 1 through Monday, September 5. See,
The Supreme Court is between terms. The opening conference of its October 2005 Term will be
held on September 26, 2005.
EXTENDED TO OCTOBER 1.
Deadline for the
National Cable & Telecommunications Association's
(NCTA) and Consumer Electronics Association (CEA) to
file their first round of status reports with the Federal
Communications Commission (FCC) regarding progress in talks regarding the
feasibility of a downloadable security solution for integrating navigation and
security functionalities in cable set top boxes. See, FCC's
Second Report and Order [37 pages in PDF] adopted and released on March 18,
2005. This order is FCC 05-76 in CS Docket No. 97-80. See also, FCC
release [PDF] summarizing this order, and story titled "FCC Again Delays
Deadline for Integrating Navigation and Security Functionalities in Cable Set Top
Boxes" in TLJ Daily E-Mail Alert No. 1,099, March 21, 2005. See,
notice of extensions (DA 05-1930) [2 pages in PDF].
Deadline to submit reply comments to the
Federal Communications Commission (FCC) in response to
its Further Notice of Proposed Rulemaking (FNPRM) regarding the exchange of customer
account information between local exchange carriers (LECs). This FNPRM is FCC 05-29
in CG Docket No. 02-386. See,
notice in the Federal Register, June 1, 2005, Vol. 70, No. 104, at Pages
31406 - 31409.
|Tuesday, August 2
10:00 AM - 12:00 NOON. The Department of
State's (DOS) International Telecommunication Advisory Committee (ITAC) will
meet to prepare for the ITU-D's meetings of
Group 1 and
Group 2, which will take place in September, Geneva, on September 6-9 and 12-15,
notice in the Federal Register, July 8, 2005, Vol. 70, No. 130, at Pages
39544 - 39545. Location: Room 2533A, State Department.
|Wednesday, August 3
10:00 AM. The U.S. Court
of Appeals (FedCir) will hear oral argument in Microstrategy v. Business
Objects, No. 04-1572. This is a patent infringement case involving relational
databases. Location: U.S. Court of Appeals, LaFayette Square, 717 Madison Place,
The Federal Communications Commission (FCC)
will hold Auction 61, the auction of of ten Automated Maritime Telecommunications
System (AMTS) licenses. See,
in the Federal Register, February 11, 2005, Vol. 70, No. 28, at Pages 7270 - 7274;
notice in the Federal Register, May 23, 2005, Vol. 70, No. 98, at Pages
29497 - 29510; and,
notice in the Federal Register, June 1, 2005, Vol. 70, No. 104, at Pages
31468 - 31469.
|Thursday, August 4
9:30 AM. The Federal Communications
Commission (FCC) will hold a meeting. See,
agenda [PDF]. The event will be webcast by the FCC.
Location: FCC, 445 12th Street, SW, Room TW-C05 (Commission Meeting Room).
9:30 AM - 12:00 NOON. The
Heritage Foundation will host an event titled
"Challenges Facing the 21st Century U.S. Workforce". The first panel is
titled "Technology and Evolving Labor Markets". The speakers will be
Furchtgott-Roth (Hudson Institute), Daniel Pink (Wired Magazine), and David Barnes
(IBM). The second panel (at 10:30 AM) is titled
"Labor Laws -- Ripe for Reform?". The speakers will be Janemarie Mulvey
(Employment Policy Foundation), Paula Collins (Texas
Instruments), William Conerly (American Institute of Full Employment). The keynote
address (at 11:30 AM) will be delivered by Secretary of Labor Elaine Chao. See,
Location: Heritage, 214 Massachusetts Ave., NE.
10:00 AM. The U.S. Court
of Appeals (FedCir) will hear oral argument in Ultratech, Inc. v. Tamarack
Scientific Co., No. 05-1107. The is an appeal from the
U.S. District Court (NDCal) in a patent
infringement case involving technology for making semiconductors. The District Court
case is No. C 03-3235 CRB (JL). Location: U.S. Court of Appeals, LaFayette Square, 717
Madison Place, Courtroom 402.
10:00 AM - 12:00 NOON. The Department of State's (DOS) International
Telecommunication Advisory Committee (ITAC) will meet to prepare for the Americas
Regional Preparatory Meeting for the World Telecommunication Development
Conference (WTDC-06) in Lima, Peru, from August 9-11, 2005. See,
notice in the Federal Register, June 22, 2005, Vol. 70, No. 119, Page
36224. Location: DOS, Room 2533A.
Deadline to submit reply comments to the
Federal Communications Commission (FCC) regarding a
petition for a declaratory ruling that certain provisions of the California Consumer Legal
Remedies Act (CLRA), as applied to interstate telephone calls, are not preempted by the
Telephone Consumer Protection Act (TCPA). See,
notice in the Federal Register, June 15, 2005, Vol. 70, No. 114, at Pages
34725 - 34726. This proceeding is CG Docket No. 02-278.
|Friday, August 5
1:00 - 4:00 PM. The DC Bar Association
will host a continuing legal education (CLE) seminar titled "The USA Patriot
Act: A Primer". The speakers will be Sharie Brown (Foley & Lardner) and
others. The price to attend ranges from $80-$125. For more information, call 202-626-3488.
notice. Location: D.C. Bar Conference Center, 1250 H Street NW, B-1 Level.
Deadline to submit comments to the U.S.
Patent and Trademark Office (USPTO) regarding its document titled "Green
Paper", which describes and evaluates four options to reform restriction
practice. The USPTO plans to draft a "White Paper" that includes proposed
legislation reforming restriction practice. See,
notice in the Federal Register, June 6, 2005, Vol. 70, No. 107, at Pages
32761 - 32762.
|Monday, August 8
Extended deadline to submit initial comments to the
Federal Communications Commission (FCC) in response to
its notice of second further proposed rulemaking regarding horizontal and vertical cable
ownership limits. The FCC adopted this Second Further NPRM on May 13, 2005, and released
it on May 17, 2005. This item is FCC 05-96 in MM Docket No. 92-264. See, original
notice in the Federal Register, June 8, 2005, Vol. 70, No. 109, at Pages 33679 -
33687. See also,
notice of extension of deadlines, in the Federal Register, July 6, 2005,
Vol. 70, No. 128, at Pages 38848 - 38849.
Deadline to submit initial comments to the
Federal Communications Commission (FCC) in
response to it notice of proposed rulemaking (NPRM) regarding low power FM
rules. The FCC adopted its order and NPRM on March 16, 2005, and released it
on March 17, 2005. It is FCC 05-75 in MM Docket No. 99-25. See,
notice in the Federal Register, July 7, 2005, Vol. 70, No. 129, at Pages
39217 - 39227.
7/28. The Recording Industry Association of
American (RIAA) announced the filing of another round of lawsuits against
individuals in U.S. District Courts around the country alleging copyright
infringement in connection with the use of peer to peer systems. See,
7/28. The Department of Justice (DOJ) announced that a grand jury of the
District Court (WDNC) returned an indictment that charges four people with
criminal copyright infringement in connection with their alleged illegal distribution of
copyrighted movies, software, games and music on the internet. The indictment
charges David Lee Pruett (of Auburn, Washington), Alexander C. Von Eremeef
(Belmont, Massachusetts), George C. Stoutenburgh (Bennet, Colorado), Jerry M.
Melvin (Roanoke, Virginia). The DOJ also announced in a
it charged four additional persons by criminal information with conspiracy to commit
criminal copyright infringement. These people are David Chen Pui (Fountain Valley,
California), Shawn W. Laemmrich (Calumet, Michigan), Scott John Walls (Spokane, Washington),
and Franklin Edward Littell (Martinsville, Indiana).
7/27. The U.S. Court of Appeals
(11thCir) issued its
[13 pages in PDF] in Maverick Boat Company v. American Marine Holdings,
a copyright infringement and trade dress infringement case involving boat hull
designs. Not everything in the Digital Millennium Copyright Act (DMCA) pertains
to digital works. The Congress included in the DMCA the Vessel Hull Design Protection
Act (VHDPA). It is now codified at 17 U.S.C. § 1301 et seq. This was a response to the
opinion of the Supreme Court in Bonito Boats, Inc. v. Thunder Craft
Boats, Inc., 489 U.S. 141 (1989). The District Court cancelled Maverick's
copyright registration, and denied its claims for copyright and trade dress
infringement. The Court of Appeals affirmed. This case is Maverick Boat
Company, Inc. v. American Marine Holdings, Inc., U.S. Court of Appeals for
the 11th Circuit, App. Ct. No. 04-11259, an appeal from the U.S. District Court
for the Southern District of Florida, D.C. Nos. 02-14102 CV-DMM and 02-14283 CV-DMM.
Judge Dubina wrote the opinion of the Court of Appeals, in which Judges Fay and
7/27. The Federal Communications Commission
(FCC) published a
notice in the Federal Register that states that the
Office of Management and Budget
(OMB) has approved the extensive information collection mandates contained in the
FCC's VOIP E911 Order. See, Federal Register, July 27, 2005, Vol. 70, No. 143, at Page 43323.
See also, the FCC's document titled
Report and Order and Notice of Proposed Rulemaking" [90 pages in PDF], numbered FCC
05-116, adopted on May 19, 2005, and released on June 3, 2005. See also, the order contained
in the FCC's document titled
Notice' [PDF], numbered DA 05-2085, and released on July 26, 2005. These orders were
issued in FCC proceedings regarding extending elements of the regulatory regime for
communications to internet protocol based services: "In the Matter of IP-Enabled
Services", numbered WC Docket No. 04-36, and "E911 Requirements for IP-Enabled
Service Providers", numbered WC Docket No. 05-196.
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