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October 3, 2005, 9:00 AM ET, Alert No. 1,225.
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WTO Concludes AJCA Still Violates DSB's FSC/ETI Rulings

9/30. A panel of the World Trade Organization (WTO) released its report [34 pages in PDF] that concludes that certain provisions of the American Jobs Creation Act of 2004 (which is also known as the Jobs Act and AJCA) still constitute illegal export subsidies in violation of the US's WTO obligations.

Previously, a WTO dispute settlement body (DSB) found fault with the FSC and ETI tax regimes. While the AJCA repealed the FSC/ETI provisions of US law, it also included transitional language, and some grandfathering. The EU again complained to the WTO.

The just released WTO report concludes that "to the extent that the United States, by enacting Section 101 of the Jobs Act, maintains prohibited FSC and ETI subsidies through the transition and grandfathering measures at issue, it continues to fail to implement fully the operative DSB recommendations and rulings to withdraw the prohibited subsidies and to bring its measures into conformity with its obligations under the relevant covered agreements."

Peter Mandelson, EU Commissioner for Trade, wrote in a release that "The EU welcomes the WTO's clear language and conclusions. It has been confirmed that the US has yet to comply with previous WTO rulings. The EU appreciates that the US Congress has repealed the original FSC tax scheme. However, despite European opposition, the US Congress chose to perpetuate the prohibited tax subsidies through a transition period and the permanent `grandfathering´ of existing contracts. These provisions, which are now contained in the American Jobs Creation Act, are unacceptable in view of the large benefits involved."

Peter MandelsonMandelson (at right) added that "We estimate these advantages, for example, to add up to over $750 million for Boeing alone. This is striking because the US is asking European companies to abide by the WTO definition of subsidies regarding grants to Europe's civil aircraft sector. I hope that the US authorities will choose to act consistently in this matter."

Sen. Charles Grassley (R-IA), the Chairman of the Senate Finance Committee, wrote in a release that "I'm extremely disappointed that the European Commission has insisted on perpetuating this dispute. The fact is, the U.S. Congress worked for years to come into compliance with our obligations under the WTO. And, the Europeans seemed to have appreciated and accepted our compliance efforts with respect to FSC/ETI -- that is, until we raised the issue of Airbus subsidies in the WTO. At that point the Brussels bureaucrats decided to perpetuate the FSC/ETI dispute in an ill-conceived effort to gain some sort of leverage in the civil aircraft dispute. Their blatant linkage of WTO disputes serves as a dangerous precedent."

Sen. Grassley added that "Their decision seems to disregard the broader interests of their constituents. I understand that few in the European business community favor perpetuation of this dispute or continued trade sanctions, especially now when we're trying to work together to enhance EU-US cooperation both bilaterally and within the World Trade Organization. If this decision is sustained on appeal, sanctions will only serve to unnecessarily disrupt our bilateral economic relations because I very much doubt that Congress will revisit this legislation."

The 108th Congress enacted, and the President signed, HR 4520, the "American Jobs Creation Act of 2004", late last year.

The original purpose of this bill was to repeal the extraterritorial income (ETI) tax regime, which in turn replaced the foreign sales corporation (FSC) tax regime. To compensate for this, the Jobs Act also reduced the top corporate tax rate from 35% to 32%, over several years, for domestic manufacturers, producers, farmers, and small corporations. The bill also became the vehicle for numerous unrelated provisions.

The impetus for repealing FSC/ETI was that the WTO ruled that the FSC/ETI tax regime constituted illegal export subsidies, and authorized the EU to impose up to $4 Billion in retaliatory tariffs. See also, story titled "EU Imposes FSC/ETI Sanctions" in TLJ Daily E-Mail Alert No. 847, March 2, 2004.

For some recent stories about the US EU FSC/ETI dispute, see stories titled "EU Adopts Regulation Regarding FSC/ETI Duties" in TLJ Daily E-Mail Alert No. 1,070, February 4, 2005; "House and Senate Approve Tax Bill That Repeals FSC/ETI" in TLJ Daily E-Mail Alert No. 995, October 13, 2004; "House Ways and Means Committee Approves Tax Bill that Repeals ETI" in TLJ Daily E-Mail Alert No. 918, June 15, 2004; and "EU Imposes FSC/ETI Sanctions" in TLJ Daily E-Mail Alert No. 847, March 2, 2004.

For further earlier coverage of this topic, see stories titled "Grassley and Baucus Organize Meeting on FSC/ETI Issue" in TLJ Daily E-Mail Alert No. 511, September 18, 2002; "Deputy Treasury Secretary Addresses FSC/ETI and WTO Rulings" in TLJ Daily E-Mail Alert No. 526, October 9, 2002; "Rep. Thomas Writes Colleagues Re FSC Dispute" in TLJ Daily E-Mail Alert No. 622, March 13, 2003; "WTO Authorizes FSC/ETI Related Tariffs" in TLJ Daily E-Mail Alert No. 657, May 8, 2003; "Legislators Introduce Bills to Repeal ETI Regime and Extend R&D Tax Credit" in TLJ Daily E-Mail Alert No. 715, August 11, 2003; "Senate Finance Committee Approves FSC/ETI Replacement Bill" in TLJ Daily E-Mail Alert No. 753, October 6, 2003; and "Sen. Grassley Meets with Lamy Re FSC/ETI" in TLJ Daily E-Mail Alert No. 771, November 4, 2003.

See also, TLJ news analysis titled "The FSC Tax Bill and Technology Exporters", November 17, 2000.

US Consul General Discusses Trade and IPR in Hong Kong

9/29. US Consul General James Cunningham gave a speech titled "U.S. Hong Kong Economic Relations" to the Chinese Manufacturers' Association of Hong Kong.

He praised Hong Kong for a "strong tradition of rule of law, free flow of information, respect for intellectual property rights, an admirable entrepreneurial spirit", and its other attributes. He also said that Hong Kong is a "model for China's economic development".

He also focused in intellectual property rights. He said that "We have also worked productively with Hong Kong on the protection of intellectual property rights. An effective IPR regime transforms the creative talents of people into high-value assets, and is essential to today's economy. Hong Kong has made strides in this regard over recent years and in many respects serves as a model for the region. We look to Hong Kong to sustain the pace of its enforcement activities aimed at local producers and vendors of infringing products, to work with us to develop the means to combat the growing challenge of internet piracy, and to maintain its efforts against end-use piracy and the cross-boundary flow of infringing products."

More Trade News

Pascal Lamy9/25. Pascal Lamy (at right), Director General of the World Trade Organization (WTO), gave a speech in Washington DC regarding the upcoming sixth ministerial meeting in Hong Kong on December 13-18, 2005. He said that "this is probably our last and best chance to move the Doha Round towards a successful conclusion at the end of 2006".

9/29. The House Ways and Means Committee (HWMC) held a hearing titled "Implementation of the United States Bahrain Free Trade Agreement". See, HWMC web page with hyperlinks to statements and testimony.

9/29. The Senate Foreign Relations Committee's Subcommittee on East Asian and Pacific Affairs held a hearing on U.S. Japan relations. See, prepared testimony [6 pages in PDF] of Richard Lawless (Department of Defense), prepared testimony [6 pages in PDF] of Christopher Hill (Assistant Secretary of State for East Asian and Pacific Affairs), prepared testimony [3 pages in PDF] of Amelia Porges (Sidley Austin Brown & Wood), prepared testimony [8 pages in PDF] of Stephen MacMillan (P/CEO of Stryker Corporation), and prepared testimony [9 pages in PDF] of Gerald Curtis (Columbia University).

Bush Picks Thomas Rosch for FTC

9/29. President Bush nominated Thomas Rosch to be a Commissioner of the Federal Trade Commission (FTC), for the remainder of a seven year term expiring September 5, 2012. If confirmed by the Senate, he will replace Thomas Leary. See, White House release and release.

Rosch is a partner in the San Francisco office of the law firm of Latham & Watkins (LW). He was previously a partner in the law firm of McCutchen Doyle Brown & Enerson (now Bingham McCutchen). He focuses on antitrust and trade regulation law.

He was Director of the FTC's Bureau of Consumer Protection from 1973 to 1975. He is also a past Chairman of the California State Bar Association's Antitrust and Unfair Competition Law Section, and a past Chairman of the ABA's Antitrust Section. In 1989 was a member of the Special Committee to Study the Role of the Federal Trade Commission.

Rosch was counsel for Lexmark in Arizona Cartridge v. Lexmark. In this case he successfully argued that the print on the outside of a box can give rise to an enforceable contract limiting consumers' use of the product, and that designing and marketing a consumer technology product with built in non-interoperability does not constitute an unfair business practice. See, story titled "9th Circuit Rules in Arizona Cartridge v. Lexmark", below.

9th Circuit Rules in Arizona Cartridge v. Lexmark

8/30. The U.S. Court of Appeals (9thCir) issued its opinion [14 pages in PDF]  in Arizona Cartridge Remanufacturers Association v. Lexmark, a case regarding Lexmark's efforts to limit post sale use of, and competition with, its printer cartridges.

On the surface, this is merely a diversity case involving application of California state law regarding contract and unfair business practices. However, the defendant is Lexmark, which makes printers and printer cartridges. It also has a history of creative efforts to control after markets for printer cartridges. It has resorted to use of "lock-out chips" (the 9th Circuit's term), and the Digital Millennium Copyright Act's (DMCA) anti-circumvention provisions, in an attempt to foil producers of replacement cartridges. See, discussion of Lexmark v. SCC, below.

In the present case, the plaintiff is the Arizona Cartridge Remanufacturers Association (ACRA), an association of wholesalers that sell remanufactured printer cartridges. The ACRA asserts merely violation of state unfair business practices law.

Lexmark has a program, which it previously titled "prebate", under which it gives purchasers an upfront discount, pursuant to a packing agreement, to return the empty cartridge to Lexmark for remanufacturing.

The agreement takes the form of a written notice on the packaging of the cartridges. It states, in part, as follows: "Opening of this package or using the patented cartridge inside confirms your acceptance of the following license agreement. The patented cartridge is sold at a special price subject to a restriction that it may be used only once. Following this initial use, you agree to return the empty cartridge only to Lexmark for remanufacturing and recycling. If you don’t accept these terms, return the unopened package to your point of purchase. A regular price cartridge without these terms is available". The Court of Appeals noted that about 50% of such cartridges are returned.

The ACRA filed a complaint in U.S. District Court (NDCal) against Lexmark alleging deceptive and unfair business practices in violation of California Business and Professions Code § 17500 in connection with this printer cartridge prebate program. First, the ACRA alleged that Lexmark's advertising and promotional materials mislead customers regarding the prebate program's discounted price.

Second, the ACRA alleged that Lexmark made the implied statement that the agreement is enforceable. Third, it alleged that Lexmark's use of a lock-out chip is itself an unfair business practice. The recitation of facts in the Court of Appeals opinion does not explain the nature of the "lock-out chip". Rather, it refers readers to the 6th Circuit's description in Lexmark v. SCC.

To the extent that the agreement purports to limit the post sale use of patented technology, patent law is implicated. Also, to the extent that the lock-out chip is itself a technological effort to create non-interoperability, this case involves the issue of whether planned non-interoperability is an unfair business practice. These aspects of the case may be significant to technology law and policy.

The District Court granted summary judgment to Lexmark on all three claims. The District Court's opinion is reported at 290 F. Supp. 2d 1034.

The Court of Appeals affirmed.

First, the Court held that Lexmark can create and enforce a legally binding agreement with its consumers regarding the post-purchase use of its product. It relied on the 1992 opinion of the U.S. Court of Appeals for the Federal Circuit in Mallinckrodt v. Medipart Inc. This case is reported at 976 F.2d 700.

The 9th Circuit wrote that Mallinckrodt "held that a restriction on a patented good is permissible as long as it is ``found to be reasonably within the patent grant, i.e., that it relates to subject matter within the scope of the patent claims.´´ ... A condition is impermissible where ``the patentee has ventured beyond the patent grant and into behavior having an anticompetitive effect not justifiable under the rule of reason.´´" (Citations to Mallinckrodt omitted.)

The Electronic Frontier Foundation (EFF) filed an amicus curiae brief in which it argued that the Court should reject the Mallinckrodt opinion. The Court noted this EFF brief, but concluded that since the "ACRA has not challenged the district court's reliance on or application of Mallinckrodt ... we need not pass on the merits of the Federal Circuit’s decision for resolution of the case before us."

The EFF also wrote in its brief that "an endorsement of the Mallinckrodt rule is likely to have negative consequences far beyond Lexmark printer cartridges. Software vendors have already generated considerable controversy with their practice of using ``shrinkwrap licenses´´ in the copyright context to impose myriad unreasonable post-sale terms on consumers, much to the consternation of many courts and commentators. If Lexmark succeeds in imposing its Prebate ``single use only´´ label notice on consumers, it could well result in the widespread ``shrinkwrap-ification´´ of a wide variety of goods beyond software. Labels sporting ``no modifications or repair permitted´´ will be used to deter legitimate reverse engineering and shut down repair services."

The 9th Circuit also addressed whether the packaging nature of the purported agreement is sufficient. It held that "Lexmark has presented sufficient unrebutted evidence to show that it has a facially valid contract with the consumers who buy and open its cartridges". It explained that consumers had notice before the purchase, that the terms were clear, and that there was consideration in the form of a lower price.

Second, the 9th Circuit held, in a single paragraph, that the use of the lock-out chip is not an unfair business practice. It wrote that "the district court relied on the Federal Circuit’s Mallinckrodt decision to find that Lexmark could restrict the postsale use of its patented cartridge. ACRA has not challenged the court’s determination or alleged that Lexmark is acting beyond the scope of its patent in imposing a condition that it uses the lock-out chip to enforce. Additionally, ACRA has not attempted to show that the use of the lock-out chip -- even if designed to keep other companies from remanufacturing Prebate cartridges -- impermissibly exceeds the patent grant to produce anticompetitive effects."

Third, the 9th Circuit held that Lexmark did not mislead consumers regarding price reductions.

Hence, the Court of Appeals affirmed in full.

See also, Lexmark release praising the 9th Circuit's ruling.

This case is Arizona Cartridge Remanufacturers Association, Inc. v. Lexmark International, Inc., App. Ct. No. 03-16987, an appeal from the U.S. District Court for the Northern District of California, D.C. No. CV-01-04626-SBA/JL, Judge Saundra Armstrong presiding. Judge Raymond Fisher wrote the opinion of the Court of Appeals, in which Judges Sidney Thomas and James Robart joined.

Lexmark v. SCC. On December 30, 2002, Lexmark filed a complaint [17 page PDF scan] in U.S. District Court (EDKent) against Static Control Components (SCC) alleging violation of the anti-circumvention provisions of the DMCA in connection with its production and sale of replacement cartridges for certain Lexmark printers. On February 27, 2003, the District Court issued its preliminary injunction order against SCC.

The issue in this case also became one of the subjects of a Copyright Office (CO) proceeding on DMCA exemptions. See, story titled "CO to Consider Programs Embedded in Printers and Cartridges In DMCA Exemptions Rulemaking" in TLJ Daily E-Mail Alert No. 601, February 11, 2003.

SCC brought an interlocutory appeal. On October 26, 2004, the U.S. Court of Appeals (6thCir) issued its opinion vacating the District Court's preliminary injunction and remanding. All three judges of the three judge panel wrote opinions, one of which is a partial dissent. However, the three judges all agreed that the DMCA cannot be used by manufacturers to obtain a monopoly in secondary markets for replacement parts. See, story titled "6th Circuit Vacates Preliminary Injunction in DMCA Case" in TLJ Daily E-Mail Alert No. 1,012, November 5, 2004.

The Computer & Communications Industry Association (CCIA) filed an amicus curiae brief with the 6th Circuit in which it argued about the importance of the interoperability of information technology. It argued that SCC's conduct fits an exception in the DMCA. See, story titled "CCIA Files Amicus Brief In Lexmark v. Static Control" in TLJ Daily E-Mail Alert No. 692, July 7, 2003.

That case is Lexmark International, Inc. v. Static Control Components, Inc., U.S. Court of Appeals for the 6th Circuit, App. Ct. No. 03-5400, an appeal from the U.S. District Court for the Eastern District of Kentucky, at Lexington, D.C. No. 02-00571, Judge Karl Forester presiding. It is reported at 387 F.3d 522.

There is also a related case not involving Lexmark. On August 31, 2004, the U.S. Court of Appeals (FedCir) issued its opinion [46 pages in MS Word] in Chamberlain v. Skylink, another case involving the anti-circumvention provisions of the DMCA, and interoperability of after market products. The product in that case is portable radio frequency transmitting devices that activate garage door openers (GDO).

Chamberlain asserted that Skylink, by selling GDOs that interoperate with its equipment, is trafficking in devices that circumvent a technological measure that effectively controls access to a copyrighted work. The District Court rejected Chamberlain's claim. The Court of Appeals affirmed. See, story titled "Federal Circuit Rejects Anti-Circumvention Claim in Garage Door Opener Case" TLJ Daily E-Mail Alert No. 971, September 7, 2004.

There was no issue of the TLJ Daily E-Mail Alert on Friday, September 30, 2005.
Washington Tech Calendar
New items are highlighted in red.
Monday, October 3

The House will meet at 4:00 PM in pro forma session only. See, Republican Whip Notice.

The Senate will meet at 3:00 PM. It will resume consideration of HR 2863, the "Department of Defense Appropriations Act, 2006".

12:00 NOON - 2:00 PM. The Progress & Freedom Foundation (PFF) will host a lunch. The topic will be the future of the radio marketplace. The speakers will be Mark Mays (P/CEO of Clear Channel Communications), Blair Levin (Legg Mason), Paul Gallant (Stanford Washington Research Group), and Christopher Stern (Medley Global Advisers). See, notice and online registration page. Location: Mandarin Oriental Hotel, Gallery Room, 1330 Maryland Ave., SW.

12:15 PM. The Federal Communications Bar Association's (FCBA) IP-Based Communications Committee will host a brown bag lunch titled "Network Neutrality -- What is it, Who Benefits, and Is Regulation Necessary?". The speakers will be Amy Levine (assistant to Rep. Rick Boucher), Jim Kohlenberger (VON Coalition), Brent Olson (SBC), and Jim Casserly (Willkie Farr & Gallagher). Location: Pillsbury Winthrop Shaw Pittman, 2300 N St., NW.

Deadline to submit comments to the Department of Homeland Security (DHS) regarding its expansion of the US VISIT program to include the utilization of radio frequency identification (RFID) technology. See, notice in the Federal Register, August 4, 2005, Vol. 70, No. 149, at Pages 44934 - 44938.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to the Public Notice [27 pages in PDF] of August 17, 2005, regarding four proposals (which are attached to the Public Notice) submitted to the FCC by members and staff of the FCC's Federal-State Joint Board on Universal Service regarding universal service subsidies for rural carriers. One of these proposals also proposes expanding the services that are taxed to support universal service subsidies. (See, Public Notice, at page 18.)

Tuesday, October 4

Rosh Hashanah.

The House will not meet. See, Republican Whip Notice.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in IPXL Holdings v., No. 05-1009. This is an appeal from the U.S. District Court (EDVa) in a patent infringement case involving IPXL's U.S. Patent No. 6,149,055, titled "Electronic Fund Transfer or Transaction System". The District Court granted summary judgment to Amazon. See, opinion [PDF] of the District Court. Location: U.S. Court of Appeals, LaFayette Square, 717 Madison Place, Courtroom 402.

Deadline to submit comments to the Rural Utilities Service (RUS) regarding its proposal to amend its rules regarding telecommunications, including its proposal to establish and codify provisions for RUS acceptance and technical acceptance of materials used in telecommunications systems. See, notice in the Federal Register, August 5, 2005, Vol. 70, No. 150, at Pages 45314 - 45322.

Wednesday, October 5

The House will not meet. See, Republican Whip Notice.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Slocum Enterprises v. New Generation Devices, No. 05-1195. This is an appeal from the U.S. District Court (DOre) in patent infringement case. The issue on appeal is whether the District Court has personal jurisdiction over the out of state defendant. Location: U.S. Court of Appeals, LaFayette Square, 717 Madison Place, Courtroom 402.

12:30 PM. Former Secretary of Commerce Don Evans will give a luncheon address on financial services industry and the relation between the flow of capital and freedom. Location: Ballroom, National Press Club, 529 14th St. NW, 13th Floor.

Thursday, October 6

10:00 AM. The House will meet at 10:00 AM for legislative business. It will consider, pursuant to a rule, the conference report on HR 2360, the "Department of Homeland Security Appropriations Act for Fiscal Year 2006". See, Republican Whip Notice.

10:00 AM. The Senate Banking Committee will hold a hearing titled "A Review of the CFIUS Process for Implementing the Exon-Florio Amendment". The secretive Committee on Foreign Investments in the U.S. (CFIUS) is the instrument by which the federal government blocks foreign investment in, and acquisition of, certain technology companies. See, notice. Location: Room 538, Dirksen Building.

12:15 PM. The Federal Communications Bar Association's (FCBA) Common Carrier Committee will host a brown bag lunch titled "FCC Wireline Broadband Order". The speakers will be Jack Zinman (SBC Services), Michael Schooler (National Cable & Telecommunications Association), and others. Location: Hogan and Hartson, 555 13th Street, NW, lower level.

2:00 PM. The U.S. Court of Appeals (FedCir), sitting en banc, will hear oral argument in Motion Systems Corporation v. George Bush, No. 04-1428. This case involves the authority of the Court of International Trade to review orders of the President. The sua sponte order [PDF] designating en banc hearing requests briefing on the following issues: "(1) Is the President an "officer" under the terms of 28 U.S.C. § 1581(i) and is the President's action under 19 U.S.C. § 2451 subject to judicial review in a suit against the President? See Franklin v. Massachusetts, 505 U.S. 788 (2000); Mississippi v. Johnson, 71 U.S. 475 (1866). (2) Is there any constitutional barrier that would preclude the Court of International Trade from issuing the requested injunctive relief against the President? See Franklin v. Massachusetts, 505 U.S. 788 (2000); Dalton v. Spector, 511 U.S. 462 (1994); Mississippi v. Johnson, 71 U.S. 475 (1866). (3) Should Corus Group PLC v. Int'l Trade Comm'n., 352 F.3d 1351 (Fed. Cir. 2003) be overruled en banc insofar as it holds that § 1581(i) does not authorize relief against the President? (4) Under the terms of § 1581(i) and § 2451, is the relief requested against the United States Trade Representative available in this case?" Location: U.S. Court of Appeals, LaFayette Square, 717 Madison Place, Courtroom 201.

2:30 PM. The Senate Judiciary Committee (SJC) may hold a hearing on pending judicial nominations. The SJC frequently cancels of postpones hearings without notice. Press contact: Blain Rethmeier (Specter) at 202 224-5225, David Carle (Leahy) at 202 224-4242 or Tracy Schmaler (Leahy) at 202 224-2154. Location: Room 226, Dirksen Building.

2:30 PM. The Senate Finance Committee's Subcommittee on International Trade will hold a hearing on the U.S.-Bahrain Free Trade Agreement. Location: Room 215, Dirksen Building.

4:30 PM. The House Judiciary Committee's (HJC) Subcommittee on Courts, the Internet, and Intellectual Property (CIIP) will hold an oversight hearing titled "Improving Federal Court Adjudication of Patent Cases". The hearing will be webcast by the HJC. Press contact: Jeff Lungren or Terry Shawn at 202 225-2492. Location: Room 2141, Rayburn Building.

7:00 PM. The National Press Club's (NPC) Photography Committee will host a panel discussion titled "Copyright and the Internet -- What You Can Use and How to Protect Your Work". The speakers will be Sherrese Smith (Washington Post attorney), Lorraine Woellert (Business Week journalist), Stephen Brown (photojournalist), and Joy Chambers (attorney). The event is free, but reservations are required. Phone 202 662-7501. For more information, contact Joy Chambers at 703 864-1945 or Marshall Cohen at 202 364-8332. Location: White Room, NPC, 529 14th St. NW, 13th Floor.

Day one of a two day conference titled "Identity Management: Creating A Trusted Identity" hosted by the Information Technology Association of America (ITAA). See, notice. For more information, contact Jennifer Kerber at jkerber at itaa dot org. Location: Hyatt Regency, Crystal City, VA.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its notice of proposed rulemaking (NPRM) regarding off-axis equivalent isotropically radiated power (EIRP) method for reviewing earth station applications in the fixed satellite service (FSS). See, notice in the Federal Register, June 8, 2005, Vol. 70, No. 109, at Pages 33426 - 33429. This NPRM is FCC 05-62 in IB Docket No. 00-248.

Friday, October 7

10:00 AM. The House will meet at 9:00 AM for legislative business. It will consider, pursuant to a rule, HR 3893, the "Gasoline for America's Security Act of 2005". See, Republican Whip Notice.

9:00 AM - 5:00 PM. The National Institute of Standards and Technology (NIST) will hold a workshop on the security of electronic voting systems. See, notice in the Federal Register, September 9, 2005, Vol. 70, No. 174, at Pages 53635 - 53636. Location: NIST, Building 820, Room 152, Gaithersburg, MD.

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in Sabre v. Department of Transportation, No. 04-1073, a case regarding wether the DOT can expand its regulatory authority to include computer reservation systems (CRS). See, amicus curiae brief [25 pages in PDF] of the Competitive Enterprise Institute and the Progress and Freedom Foundation (PFF) in support of Sabre. Judge Rogers, Brown and Williams will preside. Location: Prettyman Courthouse, 333 Constitution Ave., NW.

12:00 NOON. The Federal Communications Bar Association's (FCBA) Wireless Telecommunications Practice Committees will host a lunch titled "CMRS Issues". The price to attend is $15. Registrations and cancellations are due by 5:00 PM on Tuesday, October 5, 2005. See, registration form [PDF]. Location: Sidley Austin, 1501 K Street, NW., 6th Floor.

Day two of a two day conference titled "Identity Management: Creating A Trusted Identity" hosted by the Information Technology Association of America (ITAA). See, notice. For more information, contact Jennifer Kerber at jkerber at itaa dot org. Location: Hyatt Regency, Crystal City, VA.

Monday, October 10

Columbus Day.

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

Deadline to submit comments to the Internet Corporation for Assigned Names and Numbers (ICANN) regarding its proposed amendment to the .NET Registry Agreement. See, notice.

EC Issues Statement Regarding Plans to Digitize Libraries

9/30. The European Commission (EC) issued a statement regarding "its strategy to make Europe's written and audiovisual heritage available on the Internet".

It states that "The Commission proposes a concerted drive by EU Member States to digitise, preserve, and make this heritage available to all." The release, using the vague language typical of EC statements, adds that "the results of an online consultation on digitisation and digital preservation issues (2005) will feed into Commission Proposal for a Recommendation (2006). The results will also be an input for other relevant initiatives such as the review of EU copyright rules (2006) and the implementation of the Community R&D programmes (2007). A High Level Group on digital libraries will advise the Commission on how to best address the identified challenges at European level". (Parentheses in original.)

It also states that the EC "has made €36 million available for research on advanced access to our cultural heritage and digital preservation in the fifth call for proposals under the sixth research framework programme for R&D (2005). Under the seventh framework programme (FP7), the research on digitisation, digital preservation and access to cultural content will be considerably stepped up, inter alia through a network of Centres of Competence in the fields of digitisation and preservation (2007), and between 2005 and 2008, the eContentplus programme will contribute €60 million towards making national digital collections and services interoperable and facilitating multilingual access and use of cultural material."

In December of 2004 Google announced its plans to digitize library works, without government funding or regulation. See, release.

People and Appointments

10/1. World Trade Organization (WTO) Deputy Directors-General Alejandro Jara, Valentine Rugwabiza, Harsha Singh, and Rufus Yerxa began their terms of office on October 1, 2005.

9/29. The Senate confirmed John Roberts to be Chief Justice of the United States by a vote of 78-22. See, Roll Call No. 245. He also took the oath of office at a White House ceremony on September 29. See, transcript. All of the votes against Roberts were cast by Democrats. Most were cast by Senators from rust belt states. The west coast Senators split: Feinstein (CA), Boxer (CA), Cantwell (WA) voted no, while Wyden (OR) and Murray (WA) voted yes. Reid (NV), Inouye (HI) and Dayton (MN) also voted no.

9/29. President Bush nominated Judge James Payne to be a Judge of the U.S. Court of Appeals for the Tenth Circuit. See, White House release. He is currently a Judge of the U.S. District Court (EDOkla). President Bush appointed him. He was confirmed by the Senate on October 23, 2001. From 1988 until 2001 he was a Magistrate Judge in that District. See, DOJ biography and resume.

9/29. President Bush nominated Margaret Spellings to be a Representative of the U.S. to the 33rd General Conference of the United Nations Educational, Scientific and Cultural Organization. See, White House release and release.

9/27. BellSouth announced that Pat Shannon will become its Chief Financial Officer. He has worked at BellSouth since 1997. He will replace Ron Dykes, who will retire at the end of this year.

9/29. The CTIA announced its Board of Directors for 2006. Len Lauer (Sprint Nextel COO) will be Chairman. He will replace the outgoing Chairman, Terry Addington (P/CEO of First Cellular of Southern Illinois). Michael Kalogris (CEO of Suncom Wireless) will be Vice Chairman. Cindy Christy (President of Lucent Mobility Solutions) will be Secretary. Dennis Miller (President of Midwest Wireless will be Treasurer. The other new Board members will be Bret Comolli (CEO of Asurion), Eric DeMarco (CEO of Wireless Facilities), David Peterschmidt (P/CEO of Openwave Systems), and Ronald Smith (President of Bluegrass Cellular). See, CTIA release.

More News

9/29. The Center for Democracy and Technology (CDT) wrote a letter [3 pages in PDF] to Michael Gallagher, head of the National Telecommunications and Information Administration (NTIA) regarding the .xxx internet domain. It wrote that "We understand that on August 11, 2005, you sent a letter to Dr. Vinton Cerf, the chairman of the board of directors for the Internet Corporation for Assigned Names and Numbers (ICANN), requesting this delay. Although CDT neither supports nor opposes the creation of a .xxx domain, we believe this action sets a troubling and potentially destabilizing precedent for direct U.S. Government intervention in the day-to-day management of the Internet's global addressing system. Furthermore, because the delay appears to be sought in this instance specifically because of the content of the speech for which the .xxx domain is intended, the demand for a delay in approval treads dangerously close to crossing a well settled First Amendment line -- potentially stifling the creation of a forum intended for a specific type of constitutionally protected speech." The CDT asks the NTIA to "remove itself from the .xxx decision-making process".

9/29. The Progress and Freedom Foundation (PFF) released a paper [PDF] titled "The American System: A Schumpeterian History of Standardization". This is the first in a series of three by Andrew Russell.

9/29. The Recording Industry Association of America (RIAA) announced the filing of another round of lawsuits by its member companies against individuals using peer to peer systems to infringe copyrighted works. See, release.

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