|News Briefs from May
Nominations and Confirmations
5/25. The Senate approved by unanimous consent several nominations to the FCC (Michael Powell, Michael Copps,
Kevin Martin, and Kathleen Abernathy) and the FTC (Timothy Muris). See, Commerce Committee
release. This leaves both the FCC and FTC with three Republicans and two
Democrats. In addition, FCC Commissioner Gloria Tristani, who is a
Democrat from New Mexico, will likely resign soon to run for the Senate against Sen. Pete Domenici (R-NM). By law, she
must be replaced by a Democrat.
5/25. The Senate confirmed several nominations to the Department of Commerce, including Bruce
Mehlman, Kathleen Cooper, and Mari Cino.
5/25. Rep. Chris Cox (R-CA)
withdrew his name from consideration for nomination by President Bush to be a
Judge of the U.S. Court of Appeals for the Ninth Circuit. The prospective
nomination had been opposed by Sen.
Dianne Feinstein (D-CA) and Sen. Barbara
Privacy: EPIC Alleges Jeeves' Purchase of eTour Data Violates
5/25. The Electronic Privacy Information Center
(EPIC) sent a letter
to the FTC and the National Association of Attorneys
General (NAAG) alleging that Ask Jeeves'
purchase of eTour's personal information of
Internet users violates federal and state laws. EPIC asked the FTC and states
"to block the sale of personal information from eTour, Inc. to Ask Jeeves,
Inc. as an unfair and deceptive trade practice." EPIC also wrote that
"the exchange of personal data between eTour, Inc. and Ask Jeeves, Inc. is
part of a growing problem" and recommended "proactive solutions to
prevent such scenarios from occurring in the future." EPIC elaborated that
the "assets purchased by Ask Jeeves, Inc. from eTour, Inc. include the
registration information from an estimated 4.5 million users and a list of 2.2
million e-mail newsletter subscribers."
Another Depreciation Bill Introduced
5/22. Rep. Phil Crane (R-IL) and 28
others introduced HR 1934, the
Printed Circuit Investment Act of 2001, a bill to reduce to 3 years the
depreciation period for "any printed wiring board or printed wiring
assembly equipment." The bill was referred to the House Ways and Means Committee, of
which Rep. Crane is a senior member.
Bill Would Provide Gov Loans for Rural Broadband Deployment
5/25. Sen. Byron Dorgan (D-ND), Sen. Tom Daschle (D-SD), Sen. Tim Johnson (D-SD), Sen. Patty Murray (D-WA), and Sen. Paul Wellstone (D-MN) introduced S
966, the Rural Broadband Enhancement Act, a bill to amend the National
Telecommunications and Information Administration Organization Act to encourage
deployment of broadband service to rural America. It was referred to the Senate Commerce Committee, of which
Sen. Dorgan is a member. Sen. Dorgan stated that "To remedy the gap between
urban and rural America, this legislation gives new authority to the Rural Utilities Service in consultation with
NTIA to make low interest loans to
companies that are deploying broadband technology to rural America." He
added that "When we were faced with electrifying all of the country, we
enacted the Rural Electrification Act. When telephone service was only being
provided to well-populated communities, we expanded the Rural Electrification
Act and created the Rural Utilities Service to oversee rural telephone
deployment. The equitable deployment of broadband services is only the next step
in keeping America connected, and our legislation would ensure that."
5/25. Rep. Bart Stupak (D-MI) and Rep. Earl Pomeroy (D-ND) introduced HR
2038, the House version of the Rural Broadband Enhancement Act. It was referred
to the House Commerce Committee, of
which Rep. Stupak is a member, and to the House Agriculture Committee.
Federal Circuit Opinion
5/25. The U.S.
Court of Appeals (FedCir) issued its opinion in SKF USA v. U.S., an
antidumping case involving the obligation of a court to remand a case to an
administrative agency upon the agency’s change in policy or statutory
interpretation. The Appeals Court held that the Court of International Trade
erred in declining to remand the case to the Department of Commerce, and
reversed that court’s decision in SKF USA Inc. v. United States, 77 F. Supp.
2d 1335 (CIT 1999).
5/25. The NTIA
published in its web site Amendment
3 and Amendment
24 to the DOC/NSI Cooperative Agreement. See also, ICANN release.
5/25. Catherine Ronis joined the Washington DC office of the law firm of Wilmer Cutler & Pickering as a partner in
the firm's Communications and Electronic Commerce group. Ronis was previously a
partner at Skadden Arps. Her
practices focuses on litigation involving the interconnection provisions of the
Telecom Act of 1996. See, WCP release.
Rogan to Head USPTO
5/24. President Bush picked former Rep. James Rogan (R-CA) to be head
of the USPTO.
Formally, Bush nominated him to be Under Secretary of Commerce for Intellectual
Property and Director of the U.S. Trademark Office. See, TLJ story and TLJ biography of Rogan (written in 1999).
5/24. The Senate Judiciary Committee
held a hearing on competition in the pharmaceutical marketplace, focusing on the
antitrust implications of patent settlements. See, prepared testimony of
witness: Gary Beuhler
(Food and Drug Administration), Molly Boast (Director of
the FTC's Bureau of Competition), James Griffin
(Antitrust Division), and Mark Shurtleff
(Attorney General of Utah).
Federal Circuit Opinion in Patent Case
U.S. Court of Appeals (FedCir) issued its opinion in Budde
v. Harley Davidson, a patent infringement case involving fuel
injection systems in reciprocating engines. Budde, the holder of U.S. Patent No.
4,955,348, filed a complaint for patent infringement in U.S. District Court (NDCal)
against Harley Davidson. The District Court entered a judgment of
non-infringement. The Appeals Court vacated the judgment, and remanded.
TiVo Awarded Patent
5/24. TiVo announced that the USPTO
Patent No. 6,233,389 to it for a "Multimedia Timewarping System."
The invention allows the user to store selected television broadcast programs
while the user is simultaneously watching or reviewing another program. See
Weller and Matsui Introduce Global E-Commerce Resolution
5/24. Rep. Jerry Weller (R-IL) and Rep. Bob Matsui (D-CA) introduced HRes 151, a
resolution expressing the sense of the House of Representatives on the
importance of promoting fair, efficient, and simple cross-border tax collection
regimes that maintain market neutrality and promote free trade on all sales
distribution channels within a globally networked economy. It was was referred
to the House Ways and Means Committee,
of which both Weller and Matsui are members.
The resolution would express the sense of the House that the "Secretary of
the Treasury should proactively seek to identify and resolve tax policy issues
that will globally impact cross-border trade through the Internet". It also
would provide that "the United States should work in good faith with our
trading partners to ensure that any tax collection regimes that attempt to
impose tax collection obligations on sellers outside the borders of the taxing
jurisdiction promote the continued growth of electronic commerce by (A) imposing
no greater administrative burdens or compliance obligations on Internet sellers
than on any other seller; (B) providing simple and clear rules that allow the
seller to identify, with certainty, the amount of the tax that must be
collected, and that limit a seller's liability in situations where the seller
has made commercially reasonable efforts to determine the correct tax; (C)
allowing sellers to rely on customer-provided information available during the
course of a transaction to determine the appropriate taxing jurisdiction; (D)
taxing Internet sales the same as similar products sold through traditional,
physical distribution channels, including applying the same tax rates to online
sales and extending exemptions and thresholds to online sales; and (E)
incorporating rules that require sellers and governments to respect the privacy
interests of consumers."
Representatives Criticize IRS Misuse of Internet
5/24. Rep. John Duncan (R-TN) stated
on the House floor that "IRS employees used about half their on-line time
at work to visit sex sites, gamble, trade stocks and visit chat rooms"; he
cited stories by the Washington Times and Scripps Howard News Service. He
concluded that "Federal employees who use work computers to visit sex
sites, gamble, trade stocks and visit chat rooms are underworked, overpaid and
should be fired." Rep. James
Traficant (D-OH) had this to say in the House on May 25: "IRS agents
illegally used their computers for shopping, stock trading, gambling and
pormography. Unbelievable. Think about it. While 60 percent of taxpayer calls to
the IRS go unanswered, the IRS agents were watching Marilyn Chambers do the
Rotary International. Beam me up ..."
5/24. Rep. James Traficant (D-OH),
who regularly gives flamboyant one minute speeches in the House, stated that
"China illegally bought U.S. microchips to build new missiles and to aim
them at the United States of America. Mr. Speaker, beam me up. The American
taxpayers are funding World War III, so help me God. I yield back the fact that
the nature of a dragon is not to negotiate with its prey. The nature of a dragon
is to kill its prey."
FCC, FTC and Commerce Nominees Approved by Committee
5/24. The Senate Commerce Committee
approved several nominations to the FCC
(Michael Powell, Michael Copps, Kevin Martin, and Kathleen Abernathy), the FTC (Timothy Muris), and the Department of Commerce (Bruce Mehlman, Kathleen
Cooper, and Mari Cino). See, release.
5/24. The Senate confirmed Ted Olson to be Solicitor General by a vote of 51 to
47. It was a straight party line vote, except that Sen. Zell Miller (D-GA) and Sen. Ben Nelson (D-NE) voted for
Cyber Crime Hearing
5/24. The House Judiciary Committee's
Crime Subcommittee held an oversight hearing titled Fighting Cyber Crime:
Efforts by State and Local Officials. See, opening statement of Rep. Lamar Smith (R-TX), Chairman of
the Subcommittee. See also, prepared statements of witnesses: Michael McCaul (Dep.
Atty. Gen. of Texas) and Ronald Stevens (New
York State Police).
Trade Promotion Authority
5/24. The New Democratic Coalition released a
set of principles for granting the President trade promotion authority (also
know as fast track) which include consideration for labor and environmental
standards. Trade promotion authority would enhance the President's ability to
negotiate trade agreements by allowing the Congress to approve or reject, but
not amend, trade agreements negotiated by the President. See, release.
See also, report
written by the Progressive Policy Institute, a think tank operated by the New
Republicans welcomed the qualified support of the New Democrats for trade
promotion authority. Sen. Charles Grassley
(R-IA) stated, "I welcome the principles for building a bipartisan
consensus for trade promotion authority advanced by the New Democrat coalition.
These principles are a constructive contribution to the critically important
goal of rebuilding a bipartisan accord on trade. Democrats as well as
Republicans recognize that we have to come together to restore America's
leadership in international trade. ... Without trade promotion authority, our
negotiators will lack the credibility they need to fight for, and conclude,
trade agreements that benefit all Americans." USTR Robert
Zoellick stated "I am encouraged by their constructive proposal to move the
trade agenda forward. Their trade principles reflect a pragmatic approach to
trade and an understanding of the challenges we face in opening foreign
markets." See, USTR
Bill Would Amend Rules Affecting Internet Education
5/24. Rep. Johnny Isakson (R-GA), Rep. John Boehner (R-OH), Rep. Buck McKeon (R-CA), Rep. Michael Castle (R-DE), and Rep. Bob Goodlatte (R-VA) introduced
HR 1992, the Internet Equity and Education Act of 2001. The bill would amend the
Higher Education Act of 1965 (HEA) to expand the opportunities for higher
education via the Internet. Currently, the HEA limits the amount of aid a
student enrolled in distance education courses delivered via telecommunications
may receive if the institution offers half or more of its courses by
correspondence or telecommunications. HR 1992 would remove this limitation for
postsecondary institutions that are already participating in the federal student
loan programs with student loan default rates under 10%. The bill would also
repeal of a 12-hour rule with respect to non-standard term programs. This rule
governs the amount of "seat-time" students must spend in class per
week. Finally, the bill addresses incentive compensation. The bill was referred
to the House Committee on Education and
the Workforce. See also, Isakson statement
in Congressional Record, Isakson release,
and McKeon statement
in Congressional Record.
Web Sites and Broker Dealer Registration
5/24. The SEC issued an administrative cease and desist order
against Paul Nortman in connection with his operation of Livetrade.com, an online trading software
provider. The SEC determined that Livetrade.com acted as an unregistered
broker-dealer in violation of Section 15(a) of the Exchange Act. See, SEC release.
Wireless filed a Chapter 11 bankruptcy petition in the U.S. District Court (NDTex). WebLink
Wireless is a Dallas, Texas, based provider of wireless data and paging
5/24. The FCC's Enforcement Bureau
announced that it imposed a $94,500 fine against SBC
Communications for violating the FCC's collocation rules. See, EB release. SBC
has a market capitalization of over $145 Billion, and has reported Q1 2001
earnings of $1.7 Billion; see, SBC
5/24. The ICANN published
in its web site a memorandum
titled "Criteria for Establishment of New Regional Internet
Registries." The ICANN's next round of meetings will be held on June 1-4,
2001, in Stockholm, Sweden. See, Stockholm
5/24. The FCC's Advisory Committee for the 2003 World Radiocommunication
Conference held a meeting.
5/24. The U.S. District Court (NDCal) sentenced Roger
Guerroro to one year in prison for using a computer in interstate commerce in an
attempt to coerce and entice a minor to engage in illegal sexual acts in
violation of 18 U.S.C. § 2422(b). Guerrero will also be subject to
restrictions, including prohibitions on unsupervised use of computers or the
Internet. See, indictment
[PDF] and release.
House Judiciary Committee Adopts Anti Spam Bill
5/23. The House Judiciary Committee
amended and approved HR 718, an anti spam bill, on a voice vote, after a day
long mark up session. Rep. Heather Wilson
(R-NM) and Rep. Gene Green (D-TX)
introduced the bill on February 14. The House
Commerce Committee approved an amended version on April 4. The two
Committees' versions are now substantially different. See, Commerce
Committee version adopted on April 4; see also, Judiciary Committee's amendment in the nature of a
amendment, and Hart
amendment, which were all adopted by the Judiciary Committee on May 23. The
Commerce Committee version would criminalize
sending unsolicited commercial e-mail (UCE) to someone who has asked to be
removed from a distribution list. The bill would also require UCE to be labeled
as such. It would also give individuals and ISPs separate causes of action for
violation of the act; and, it would give civil enforcement authority to FTC, and
patriae cause of action to the states. The Judiciary Committee
version eliminates any authority or cause of action for the FTC, states, or
individuals. It would criminalize sending UCE with false header information,
give a private right of action to ISPs to recover actual or statutory damages
for sending UCE with false header information, and require that e-mail that
contains contains sexually oriented advertisements to be labeled as such. See, TLJ story.
EEOC Finds Library Policy of Unrestricted Internet Access
Creates Sexually Hostile Work Environment for Librarians
5/23. The Equal Employment Opportunity Commission
(EEOC), Minneapolis Area Office, issued a Determination that the Minneapolis Public Library subjected
librarians employed by the library to a "sexually hostile work
environment" in violation of Title VII of the Civil Rights Act of 1964 for
allowing unrestricted Internet access to online smut. The librarians filed
complaints with the EEOC that stated that the library's policy of unrestricted
Internet access, which allowed patrons to view and print out any obscene
content, combined with the library's policy that librarians enforce a 30 minute
time limit on Internet use, forced librarians to observe obscene content,
subjected librarians to abuse by patrons accessing obscenity, and exposed
librarians to masturbatory scholars. See, TLJ story.
E-Mail Address Harvesting
5/23. Rep. Chris Cannon (R-UT)
offered an amendment
to the SPAM bill that would have banned the harvesting of e-mail addresses from
web sites for the purpose of sending UCE to those addresses. Rep. Sensenbrenner
stated that this was "not the proper time and place to offer this
amendment." He stated that it "prejudices the database and privacy
debates." Rep. Sensenbrenner promised to work on this issue with Rep.
Cannon, who then withdrew his amendment.
R&D Tax Credit
5/23. The Senate approved the Restoring Earnings to Lift Individuals and Empower
Families (RELIEF) Act of 2001, the $1.35 trillion tax cut compromise bill, by a
vote of 62 to 38. Several amendments were adopted, including one offered by Sen. Orrin Hatch (R-UT) which makes
permanent the research and development tax credit, and increases the increases
alternative incremental credit.
Export Administration Act
5/23. The House
International Relations Committee held a hearing on the Export
Administration Act. Rep. Henry Hyde
(R-IL), Chairman of the Committee, said in his opening
statement that "the Commerce Department has in place a series of
regulations providing for the control and monitoring of the export of sensitive
commodities, including high performance computers, software, machine tools and
other items." Sen. Mike Enzi (R-WY)
introduced S 149,
the Export Administration Act, in the Senate on January 23. It was amended and
approved by the Senate Banking
Committee on March 22 by a vote of 19 to 1. It eases restraints on the
export of most dual use products, such as computers and software. Rep. Hyde
added that in light of S 149's "significance to our economic and national
security interests, we will give this legislation all the time and attention it
deserves ensuring that it receives a thorough review and vetting." Kenneth
Juster, the recently confirmed Under Secretary for Export Administration,
testified at the hearing. He stated in his prepared
testimony that the Bush administration supports S 149.
FCC E-Rate Rules
5/23. Wednesday, May 23 was the deadline to file comments with the FCC in
response to its Notice
of Proposed Rulemaking (NPRM) regarding revisions to the method of
subsidizing schools and libraries under its e-rate program. The FCC's e-rate
program subsidizes schools' and libraries' expenses for telecommunications,
Internet access, and internal connections. The FCC has set the total subsidy
level at $2.25 Billion per year. The total annual requests for these free
subsidies now exceeds $2.25 Billion. The FCC published 13 comments received on
May 23 in in web site. See, for example, comments submitted by Qwest,
Public Library, American
Library Association. (The NPRM is published at Federal Register, May 8,
2001, Vol. 66, No. 89, at Pages 23204 - 23208.)
5/23. The House Commerce Committee's
Subcommittee on Oversight and Investigations held a hearing titled "How
Secure Is Private Medical Information? A Review of Computer Security at the
Health Care Financing Administration and Its Medicare Contractors." See,
prepared testimony of witnesses: John
Van Walker and Jared
Adair (Health Care Financing Administration), Joseph
Vengrin and Ed
Meyers (Department of Health and Human Services), and Michael
Neuman (En Garde Systems, Inc.).
5/23. The FTC
announced that TRUSTe, an Internet privacy
seal program, has been approved as a "safe harbor" program under the
terms of the Children's Online Privacy Protection Act (COPPA). See, FTC letter to
TRUSTe and FTC release.
People and Appointments
5/23. FCC Commissioner Harold Furchtgott- Roth announced that, after
leaving the FCC, he will join the American
Enterprise Institute (AEI) as a visiting fellow. At AEI, he will write a
book on telecommunications policy. See, FCC release.
5/23. Sarah Whitesell will become the Associate Chief of the FCC's Cable Services Bureau, effective June 21,
2001. She is currently a legal advisor to FCC Commissioner Gloria Tristani.
Before joining the FCC she was an associate at the law firm of Wilmer Cutler & Pickering. See, release.
5/23. FCC Commissioner Gloria Tristani announced several changes to her personal
staff. Senior Legal Advisor William Friedman and Legal Advisor Sarah
Whitesell will depart in June. Former advisors Paul Gallant and Deena
Shetler will rejoin Tristani's staff. Gallant will be Legal Advisor for mass
media and cable issues, and Shetler will be Legal Advisor for common carrier
issues. Adam Krinsky, who covers wireless and international issues, will
be Senior Legal Advisor. See, release.
5/23. President Bush announced his intent to nominate William Riley to
serve as a Judge on the United States Court of Appeals for the Eighth Circuit.
5/23. The House Judiciary Committee
added Rep. Adam Schiff (D-CA)
and Rep. Anthony Weiner (D-NY)
to the membership of the Subcommittee on Courts, Internet and Intellectual
Property. Rep. Weiner also left the Subcommittee on Crime.
5/23. James Jochum was sworn in as Assistant Secretary for Export
Administration at the Department of Commerce. See, release.
Online Fraud and Crime
5/23. The House Commerce Committee's
Subcommittee on Commerce, Trade, and Consumer Protection held a hearing titled On-line
Fraud and Crime: Are Consumers Safe? See, prepared testimony of witnesses: Bruce
Swartz (Criminal Division, DOJ), Thomas
Kubic (FBI), Eileen
Harrington (FTC), Bruce
Townsend (Secret Service), Scott
Charney (Price Waterhouse Coopers), Susan
Grant (National Consumers League), and Mark
MacCarthy (Visa USA).
5/23. The FBI, Department of Justice, and the National White Collar Crime Center
announced that criminal charges have been brought against approximately 90
individuals and companies as part of a nationwide series of investigations into
Internet fraud, code named "Operation Cyber Loss". See, FBI release.
5/23. The U.S. Attorneys Office (SDCal) unsealed an
indictment returned by a grand jury of the U.S. District Court (SDCal) against
20 individuals charging wire fraud, mail fraud, securities fraud, and other
crimes, in connection with an operation that designed, developed and marketed of
a series of high tech and telecom related securities which were not registered
and which were fraudulently described to investors as general partnerships. See,
GAO Reports on NIPC Weaknesses
5/22. The Senate
Judiciary Committee's Subcommittee on Technology, Terrorism and Government
Information held a hearing titled Challenges in Cybercrime: The National
Infrastructure Protection Center. See, GAO report [PDF] titled
"Critical Infrastructure Protection: Significant Challenges in Developing
National Capabilities", and prepared testimony [PDF] of
Robert Dacey, Director of Information Security Issues at the GAO. The
report concluded that the FBI's NIPC
"has issued numerous analyses to support investigations of individual
incidents, but it has developed only limited capabilities for strategic analysis
of threat and vulnerability data. Accordingly, the NIPC often is not able to
provide timely information on changes in threat conditions or warnings of
imminent attacks." The report also concluded that "it will take an
intense interagency effort to develop the related methodology. In addition,
information on critical infrastructure components has not been provided to the
NIPC, and the NIPC does not yet have adequate staff and technical
expertise." In contrast, the report found that "The NIPC has had
greater success in providing technical support and coordination for the FBI’s
investigations of attacks on computer systems, which it refers to as 'computer
AG Ashcroft Addresses Cyber Crime
5/22. Attorney General John Ashcroft gave a speech to the
First Annual Computer Privacy, Policy, and Security Institute at Rocky Mountain College in Billings, Montana. He
discussed the difficulties involved in investigating cybercrimes, and efforts by
the FBI and DOJ to increase the cyber crime capabilities. He also encouraged
victims of cybercrimes to promptly report criminal activity.
Subcommittee Approves Patent Bills
5/22. The House Judiciary Committee's
Subcommittee on Courts, the Internet and Intellectual Property adopted two bills
pertaining to patent reexaminations, HR 1866 and HR 1886, by
unanimous voice votes after a brief discussion. HR 1866 is intended to overturn
the opinion of the U.S. Court of Appeals (FedCir)
in In Re
Portola Packaging. HR 1886 affords all participants, including third party
requesters, in reexamination proceedings judicial review before federal appeals
courts. Rep. Howard Berman (D-CA)
also used the occasion to suggest other changes to patent law that he would like
the subcommittee to consider at some later date. See, excerpts from the hearing. See, TLJ story.
5/22. The USPTO published in the Federal
Register, and in its web site, a notice
of corrections to its final rule of March 22, 2001, revising the rules of
practice relating to applications filed under the Patent Cooperation Treaty
(PCT) to conform the United States rules of practice to the PCT Regulations that
became effective on March 1, 2001.
House Judiciary Committee Holds Hearing on Broadband Bills
5/22. The House Judiciary Committee
held a hearing HR
1698, the "American Broadband Competition Act of 2001," and HR 1697, the
"Broadband Competition and Incentives Act of 2001," a pair of bills
introduced on May 3, 2001 by Rep. Chris
Cannon (R-UT) and Rep. John Conyers
(D-MI). The Committee also heard testimony on HR 1542, a
bill sponsored by Rep. Billy Tauzin
(R-LA) and Rep. John Dingell (D-MI),
and reported by the House Commerce Committee on May 9. The sponsors and
supporters of all of these bills assert that they will incent widespread
deployment of broadband services. See, TLJ
Privacy and Social Security Numbers
5/22. The House Ways and Means
Committee's Subcommittee on Social Security of the Committee on Ways and
Means held a hearing on protecting the privacy and preventing misuse of Social
Security numbers. Rep. Clay Shaw
(R-FL), Chairman of the Subcommittee, said in his opening
statement that "I, along with several of my Ways and Means colleagues,
plan to reintroduce our bipartisan legislation. I will then work with my
colleagues from Ways and Means, and from the other Committees of jurisdiction,
to quickly bring to the House floor comprehensive legislation to keep Social
Security numbers private and protect citizens from identity theft." See,
prepared testimony of witness: Nicole
Robinson (identity theft victim), Emeka
Moneme (identity theft victim), James
Huse (Social Security Admin.), Michael
Robinson (Social Security Admin.), Michael
Fabozzi (NYC Police Dept.), Charles
Bacarisse (District Clerk, Harris County, Texas), Cory
Kravit (University of Florida), Evan
Hendricks (Privacy Times), John
Dugan (Financial Services Coordinating Council), Marc
Rotenberg (EPIC), Ronald
Plesser (Individual Reference Services Group), Paula
LeRoy (Pension Benefit Information Services), and Edmund
Mierzwinski (U.S. Public Interest Research Group).
Trade and E-Commerce
5/22. The House Commerce Committee's
Subcommittee on Commerce, Trade, and Consumer Protection held a hearing on Impediments
to Digital Trade. See, prepared testimony of witnesses: Bonnie
Richardson (Motion Picture Association of America), George
Vradenburg (AOL/Time Warner), Deborah
Waggoner (Corning Inc.), Barbara
Wellbery (Morrison and Foerster), and Jeffrey
Kovar (State Dept.). See also, release or Rep. Cliff Stearns (R-FL), Chairman of
Trade and Fast Track
5/22. The Progressive Policy Institute,
a Democratic Party think tank, released a briefing
paper that supports, in part, President Bush's request for fast track trade
negotiating authority. The paper, which was authored by Edward Gresser, stated
that "We continue to believe approval of trade promotion authority makes
sense. It is a proven way to facilitate passage of trade agreements in the U.S.
5/22. The House Appropriations
Committee's Subcommittee on Commerce, State, Justice and the Judiciary held
a hearing on the FY 2002 budget of the FCC. FCC Chairman Michael Powell
testified that the FCC seeks $248,545,000, which is $18.5 Million more that the
previous year's appropriation, an 8 percent increase. See, Powell
Cell Phone Health Issues
5/22. The GAO released
a report [PDF] titled
"Telecommunications: Research and Regulatory Efforts on Mobile Phone Health
Issues." The report, which was prepared at the request of Sen. Joe Lieberman (D-CT) and Rep. Ed Markey (D-MA), states that
"the research to date does not show that mobile phone radiofrequency
emissions have adverse health effects but there is not enough information at
this point to conclude that these products
are without risk." Lieberman and Markey called for further study. See,
Markey statement and Lieberman
release. See also, CTIA release.
Wireless Spectrum Cap
5/22. The Consumers Union and Consumer Federation of America submitted
[PDF] to the FCC in which they argued that the FCC should not lift the 45 MHz
spectrum cap for wireless services. (See, FCC Docket No. 01-14.)
First Amendment Rights of Whistleblowers to Report Misuse of
5/22. The U.S.
Court of Appeals (9thCir) issued its opinion
[PDF] in Hufford
v. McEnaney, a case involving First Amendment rights of
government employees to report misuse of government computers. Hufford, Shift
Captain of a local fire department in Idaho, discovered that fire department
employees had used a fire department computer with Internet access to download
pornography, including pictures a females aged 7-9. He reported his findings to
a superior, and to the police department. The fire department then fired Hufford
in retaliation for reporting his findings. Hufford filed a complaint in U.S.
District Court (DId)
against the Chief, Deputy Chief, and Commissioners of the fire department,
alleging violation of 42
U.S.C. § 1983. The Defendants moved for summary judgment on the grounds of
qualified immunity. The District Court denied the motion, and defendants brought
this interlocutory appeal. The Appeals Court affirmed. It wrote that
"discharging Hufford in retaliation for his truthful whistleblowing
violated his constitutionally protected right to free speech."
Perkins Coie Names New Partners and Of Counsel
5/22. The Seattle based law firm of Perkins
Coie announced the promotion of 17 partners and 2 of counsel. See, release.
San Francisco office: Nicole
Wong, who was promoted to partner in the firm's Bay Area Content Group,
focuses on Internet, intellectual property and media law. Rachel Silvers, who was
promoted to of counsel, also focuses on Internet, intellectual property and
Seattle office: Steven
Lawrenz, who was promoted to partner in the firm's Patent Group, focuses
on computer software patent matters. Paul Parker, who was
promoted to partner in the firm's Patent Group, focuses on patents for
semiconductor fabrication, mechanical devices and processes, trademark
prosecution and litigation, patent licensing, technology transfer and
intellectual property. Brent
Snyder, who was promoted to partner in the firm's Litigation Department,
focuses on intellectual property and antitrust litigation and First Amendment
issues. Robert Woolston,
who was promoted to partner in the firm's Patent Group, focuses on domestic and
international mechanical engineering patent prosecution, trademark prosecution,
domain name transactions and intellectual property counseling.
Bellevue office: Michael
Martin, who was promoted to partner in the firm's Technology Business
Group, focuses on computer, multimedia and Internet law, including technology
licensing, mergers and acquisitions, intellectual property, and emerging
companies and private placements.
5/22. Kathryn Brown joined the Washington DC office of the law
firm of Wilmer Cutler & Pickering as a
partner in the firm's Communications and Electronic Commerce group. She is a
former Chief of Staff and Chief of the Common
Carrier Bureau at the FCC. See, WCP release. In
March, Jonathan Neuchterlein joined the Washington DC office of Wilmer
Cutler & Pickering as a partner in the firm's Communications and Electronic
Commerce group. He is a former Deputy General Counsel of the FCC and Assistant
to the U.S. Solicitor General. See, WCP release.
5/22. President Bush nominated Lavenski Smith to be U.S. Circuit Judge
for the Eighth Circuit. See, release.
Bell 271 Proceedings
5/22. BellSouth filed with the
Mississippi Public Service Commission a notice of its intent to file with the
FCC a petition for permission to provide long distance service. See, BellSouth
Powell Addresses Forrester Forum
5/21. FCC Chairman Michael Powell spoke and answered questions at a Forrester
Research Telecom Forum in Washington DC. He addressed the status of local
competition, the success of the Telecom Act of 1996, Alcatel's possible
acquisition of Lucent, legislation pending in Congress regarding broadband
deployment, enforcement of telecom laws, and other issues. See, TLJ story.
The Rational Choice Chairman
5/21. FCC Chairman Michael Powell made several statements at the Forrester Forum
about the conduct of telecom and Internet companies, and regulation of those
companies, that are consistent with a "Chicago School", or rational
choice, view of economics and regulation. See, TLJ story.
FCC Reports Jump in CLEC Market Share
5/21. The FCC reported that CLECs'
share of all local telephone lines in the U.S. grew 93% in 2000. The FCC stated
that "CLECs reported about 16.4 million (or 8.5%) of the approximately 194
million nationwide local telephone lines in service to end-user customers at the
end of the year 2000, compared to 8.3 million (or 4.4% of nationwide lines) at
the end of 1999. CLEC market share grew 93% over the one-year period of January
to December 2000." The FCC also found that "About 60% of CLEC local
telephone lines served medium and large business, institutional, and government
customers. By contrast, almost 20% of incumbent local exchange carrier (ILEC)
lines served medium and large business customers. CLECs served 4.6% of the
residential and small business customers at the end of the year 2000, compared
to 2.3% for the year ago period." See, FCC release.
seized upon the report to promote their efforts to obtain regulatory permissions
to provide long distance service. (Section 271 of the Telecom Act
provides that the incumbent carriers cannot provide long distance service in a
state until it has opened its networks to competition in that state.) "The
market is open. It is time to let the Bells compete in long-distance," said
Bill McCloskey, Director Media Relations for BellSouth. "The results of the
FCC's study confirms what millions of Americans already know: our local markets
are fully open and that competitors are successfully winning customers and
increasing their market share," said Priscilla Ardoin, an SVP of SBC Communications. See, SBC
release. See also, Verizon
Supreme Court Rules in Securities Fraud Case
5/21. The Supreme Court of the United
States issued its opinion
[PDF] in Wharf Holdings v. United International Holdings, a case
construing Section 10b of the
Securities Exchange Act of 1934. Wharf is a Hong Kong firm. United is Colorado
based company. In 1991 Wharf prepared a bid to the Hong Kong government to
become the exclusive cable TV operator. Wharf engaged United to help prepare its
application, negotiate contracts, design the system, and arrange financing.
Wharf orally sold United an option to buy 10% of the stock of the new Hong Kong
cable system. However, it never intended to honor the option. Hong Kong awarded
Wharf the cable TV license. United attempted to exercise its option. Wharf
refused. United filed a complaint in U.S. District Court (DColo) alleging securities fraud
under § 10b. The jury found in Wharf's favor, awarding $67 Million in
compensatory damages, and $58.5 Million in punitive damages. The U.S. Court of
Appeals (10thCir) upheld. The Supreme Court granted certiorari. Wharf argued
that the was no violation of § 10b because the contract was oral, and because
this was a breach of contract case not actionable under federal securities law.
Justice Stephen Breyer, writing for a unanimous court, rejected both arguments.
Supreme Court Diminishes Electronic Privacy
5/21. The Supreme Court of the United
States issued its opinion
[PDF] in Barnicki v. Vopper, holding that a radio host cannot be sued for
playing an audio recording of a cellular telephone conversation, despite a
federal statute which made illegal both the interception of the conversation,
and its disclosure by the radio host. The majority reasoned that the case pitted
statutes banning disclosure of illegally obtained electronic communications
against the First Amendment freedom of speech claims of persons with illegally
obtained recordings to disclose them if their content pertains to a public
issue. See, TLJ story.
Supreme Court to Decide Constitutionality of COPA
5/21. The Supreme Court of the United States granted certiorari in Ashcroft
v. ACLU, Docket No. 00-1293. See, May 21, 2000 Order
List [PDF], at page 1. This case involves a constitutional challenge to the Child Online
Protection Act, an act that bans sending to minors over the web material
that is harmful to minors. The Act also allows web site operators to distribute
pornography, but require those websites which distribute material that is
harmful to children to verify adult status through the use of credit cards,
adult access codes, adult PIN numbers, or other technologies. The U.S. District
Court and U.S. Court of Appeals (3rdCir) both held that the statute violates the
First Amendment. See also, ACLU
Supreme Court Denies Cert in Ravens Copyright Case
5/21. The Supreme Court of the United States denied certiorari in Baltimore
Ravens v. Bouchat, a copyright infringement case, Docket No. 00-1494. See,
May 21, 2000 Order
List [PDF], at page 2.
Cyber Crime Sentencing
5/21. The U.S. District Court (NDCal)
sentenced Max Butler (aka Max Vision) to 18 months in prison for the felony
charge of unauthorized access into protected computers recklessly causing
damage. See, release.
SEC Web Survey
5/21. The SEC announced that it has
received an overwhelming response to its web based survey concerning
investor use of electronic media in making investment decisions. It announced
the survey in a May 3, 2001, notice. At that time,
it requested responses by July 1. However, as of May 21, the SEC had received
over 3,000 responses. Hence, it issued a second notice shortening the
response period to terminate on May 25.
Bush Nominates Prost for Fed Circuit
5/21. President Bush nominated Sharon Prost to be U.S. Circuit Judge for
the Federal Circuit, replacing Jay Plager,
who retired. See, release.
Prost is a longtime aide to Sen. Orrin
Hatch (R-UT) Chairman of the Senate
Judiciary Committee, the jurisdiction of which includes intellectual
property issues. The Federal Circuit, which is based in Washington DC, has
appellate jurisdiction based on subject matter, rather than territory. It hears
patent, trademark, customs, and other appeals, and hence, decides many cases of
importance to high tech industries.
BSA Software Piracy Report
5/21. The Business Software Alliance (BSA)
released a report [PDF]
titled "Sixth Annual BSA Global Software Privacy Report." The report,
which was conducted for the BSA by the International Planning and Research Corp.
(IPR), estimated that piracy losses total $11.75 Billion worldwide in 2000.
Zoeller Talks Trade and FSC
Robert Zoellick held a press
conference at the European Parliament in Strasbourg, France, in which he
addressed trade disputes, including the Foreign Sales Corporation (FSC)
Teligent Files Chapter 11 Petition
5/21. Teligent filed a Chapter 11
petition in U.S. Bankruptcy Court (SDNY). Teligent is based in
Vienna, Virginia. It provides business customers local, long distance,
high-speed data and dedicated Internet services. See, release.
Weshba v. Apple
5/21. The Court of Appeal of California (6thAppDist) issued an opinion [PDF]
in Weshba v. Apple, a state class action against Apple regarding its policy for
technical support over the telephone.
USPTO Names CIO
5/21. The USPTO named Douglas
Bourgeois its new Chief Information Officer. Before joining the federal
service and USPTO, Bourgeois was the Managing Director of Customer Service
Technology at Federal Express. He has also worked as an engineer and program
manager of aerodynamic testing at Allied Signal Aerospace Company. See, release.
Go to News Briefs from May 16-20, 2001.