News from May 26-31, 2003

California Court Rules on Jurisdiction in Dispute Over Who Pays to Relocate Telecom Facilities Underground

5/30. The California Court of Appeal (4/3) issued its opinion [MS Word] in Anaheim v. Pacific Bell, a California state case regarding whether a city may compel a phone company to move its above ground facilities underground, at the expense of the phone company. The Superior Court (trial court) held that the state public utilities commission has exclusive jurisdiction over this dispute. The Court of Appeal affirmed.

The City of Anaheim is located in Orange County, in southern California. It enacted an ordinance requiring all utility companies to move their overhead facilities underground, including poles, wires, conductors, and transformers. It then passed a resolution creating an underground district in an area called Peralta Hills.

Anaheim then notified Pacific Bell that it was required under the resolution to move its overhead facilities in the district underground at its sole expense. Pacific Bell responded that it would only move its overhead facilities if Anaheim paid for it. Anaheim paid for the conversion, under protest, and pursuant to an agreement with Pacific Bell that it reserved the right to contest responsibility. Pacific Bell made the conversion at a cost of $109,000.

Anaheim then filed a complaint in the Superior Court for Orange County, California, against Pacific Bell, seeking recovery of $109,000. Pacific Bell argued (in a demurer) that the Superior Court lacked jurisdiction because exclusive jurisdiction rests with the California Public Utility Commission (PUC). The Superior Court ultimately agreed (and sustained the demurer).

The Court of Appeal affirmed. It stated that "The sole question is whether the PUC has exclusive jurisdiction to resolve the dispute about who pays for the relocation of defendant's overhead facilities to underground or whether the superior court has concurrent jurisdiction to decide the issue." After reviewing the state constitution, which provides that a city may not regulate matters over which the legislature grants regulatory power to the PUC, and the state public utilities code, the Court of Appeal concluded that the PUC has exclusive jurisdiction over this issue.

Anaheim did not get its $109,000 back.

GAO Reports on Spectrum Management in Defense Acquisitions

5/30. The General Accounting Office (GAO) released an April 30, 2003, letter [21 pages in PDF] to the Chairmen and ranking Democrats on the Armed Services Committees regarding "Spectrum Management in Defense Acquisitions".

The letter begins by noting that "Due to the changing nature of warfighting, more and more military systems depend on the spectrum to guide precision weapons and obtain information superiority. In recent years, demand for the spectrum increased with advances in commercial technology. This demand has led to competition between government and nongovernment users, making spectrum management vital to prevent harmful interference and to promote spectrum efficiency."

The letter focuses on the Department of Defense's (DOD) requirement that developers of spectrum dependent systems obtain certification before assumption of contractual obligations for the full-scale development, production, or procurement of those systems.

The GAO found that "DOD's weapons programs have often failed to obtain, consider, or act upon adequate spectrum supportability knowledge during the early stages of acquisition. A majority of programs try to gain this knowledge at later stages, after key system development decisions may have been made. As a result, some programs experience significant delays, reduced operational capabilities, or the need for expensive redesign. More importantly, these programs missed opportunities to improve program results and avoid problems that are more costly to resolve late in development or fielding."

The GAO also found that "consideration of spectrum supportability continues to be a problem. DOD is still entering into contracts, starting full-scale development, and sometimes fielding systems before obtaining certification of spectrum supportability."

7th Circuit Rules in Privacy Case

5/30. The U.S. Court of Appeals (7thCir) issued its opinion [PDF] in Denius v. Dunlap, a Section 1983 case involving confidentiality of records. The Court of Appeals affirmed the District Court.

Since 1994, Ronald Denius, a retired Air Force Sergeant, has taught in an eighteen month program that uses military training methods to teach "life skills" and GED courses to teenage high school dropouts. His employer has required him, as a condition for continued employment, to sign various "authorizations" in which he would authorize the release of various records. These have covered medical records, attorney client privileged records, criminal records, credit records, financial records, veterans records, employment records, and other records. He refuses to sign these.

Instead, he filed a complaint in U.S. District Court (CDIll) against Wayne Dunlap (formerly the Director of his employer) and others alleging violation of 42 U.S.C. § 1983, claiming violations of his constitutional rights under the First, Sixth, and Fourteenth Amendments.

This is the second time this case has come before the Court of Appeals. See also, Denius v. Dunlap, 209 F.3d 944 (7th Cir. 2000). In the present appeal, the Court of Appeals affirmed the District Court's granting of judgment as a matter of law to Denius.

More News

5/30. The Copyright Office (CO) published a notice in the Federal Register announcing "alternative methods for the filing of claims to the cable and satellite royalty funds for the year 2002, to avoid potential problems with mail delivery. Claimants are strongly encouraged to file their cable and satellite claims electronically, utilizing the special procedures described in this document to ensure that their claims are timely received." See, Federal Register, May 30, 2003, Vol. 68, No. 104, at pages 32381 - 32382.

5/30. The Federal Communications Commission's (FCC) Consumer & Governmental Affairs Bureau (CGB) released its quarterly report [19 pages in PDF] titled "Report on Informal Consumer Inquiries and Complaints".

5/30. The Federal Communications Commission (FCC) released a Memorandum Opinion and Order [3 pages in PDF] denying a petition for reconsideration of its May 16, 2002 Second Report and Order [PDF] in its proceeding titled "In the matter of Amendment of Part 15 of the Commission's Rules Regarding Spread Spectrum Devices". This Second Report and Order revised Section 15.247 of the FCC rules to allow new digital transmission technologies to operate under the same rules as direct sequence spread spectrum systems in the 915 MHz, 2.4 GHz, and 5.7 GHz bands. See, FCC release [PDF] regarding this order. See also, TLJ story titled "FCC Permits Frequency Hopping Spread Spectrum Devices in the 2.4 GHz Band", September 4, 2000, regarding the FCC's First Report and Order [PDF] in this proceeding. This is ET Docket No. 99-231. The Petition for Reconsideration [4 pages in PDF] was filed by Warren C. Havens and Telesaurus Holdings GB, LLC, d/b/a LMS Wireless.

5/30. The General Accounting Office (GAO) released a letter [26 pages in PDF] to Rep. Lamar Smith (R-TX) regarding "Federal Judgeships: The General Accuracy of the Case-Related Workload Measures Used to Assess the Need for Additional District Court and Courts of Appeals Judgeships". Rep. Smith is the Chairman of the House Judiciary Committee's Subcommittee on Courts, the Internet, and Intellectual Property. The GAO wrote that "the Judicial Conference's analysis begins with the quantitative case-related workload measures it has adopted for the district courts and courts of appeals -- weighted case filings and adjusted case filings, respectively. These two measures recognize, to different degrees, that the time demands on judges are largely a function of both the number and complexity of the cases on their dockets. Some types of cases may demand relatively little time and others may require many hours of work. Generally, each case filed in a district court is assigned a weight representing the average amount of judge time the case is expected to require." The GAO concluded that "The district court weighted case filings, as approved in 1993, appear to be reasonably accurate and are based on a reasonable methodology. However, they are about 10 years old, and we have concerns about the research design approved to update them."

5/30. The U.S. Patent and Trademark Office (USPTO) published a notice in the Federal Register announcing that it is proposing to "amend the rules of practice to conform them to certain amendments made to the Regulations under the Patent Cooperation Treaty (PCT) that will take effect on January 1, 2004. These amendments will result in the addition of a written opinion in PCT chapter I, as well as a simplification of PCT designations and the PCT fee structure. In addition, the Office is proposing to adjust the transmittal, search, and international preliminary examination fees for international applications filed under the PCT ..." The deadline for comments is June 30, 2003. See, Federal Register, May 30, 2003, Vol. 68, No. 104, at pages 32441 - 32448.

5/30. The U.S. Patent and Trademark Office (USPTO) published a notice in the Federal Register announcing that its final rule regarding request for continued examination practice takes effect on July 14, 2003. See, Federal Register, May 30, 2003, Vol. 68, No. 104, at pages 32376 - 32381. The USPTO notice states that the "American Inventors Protection Act of 1999 (AIPA) enacted provisions for the continued examination of a utility or plant application at the request of the applicant (request for continued examination or RCE practice). Since continued prosecution application (CPA) practice is largely redundant in view of RCE practice, the Office is eliminating CPA practice as to utility and plant applications. An applicant for a utility or plant patent may also continue to effectively obtain further examination of the application by filing a continuing application. Since RCE practice does not apply to design applications, CPA practice will remain in place for design applications."

Rep. Tauzin Responds to Critics of FCC's Forthcoming Report and Order on Media Ownership

5/29. Supporters of the three Federal Communications Commission (FCC) Commissioners who are likely to vote for relaxation of the FCC's media ownership rules at the June 2 meeting of the FCC issued statements of support, and rebuttals to the critics.

Rep. Billy Tauzin (R-LA), Chairman of the House Commerce Committee released a statement in which he wrote that "Critics of FCC Chairman Michael Powell's plan to deregulate antiquated media ownership rules have brought new meaning to the phrase static interference. It's time for these folks to adjust their antennas and tune in reality."

Rep. Billy TauzinRep. Tauzin (at right) continued that "Only in Washington, D.C. would those who ostensibly want to preserve free speech seek to do so by regulating broadcast rules. Despite the diverse viewing options available to consumers resulting from the explosive growth of cable, satellite and the Internet over the past two decades, some people do not see the value in the FCC's fundamental reexamination of our nation's ownership rules. But these same people need to remember, the FCC is merely trying to do what both Congress and the courts have repeatedly told it to do -- justify its broadcast ownership rules."

Rep. Tauzin also noted that "The Telecommunications Act of 1996 requires the FCC to review its broadcast ownership rules on a biennial basis", and that "the need to reassess these rules was made all the more urgent by decisions issued by the U.S. Court of Appeals for the District of Columbia."

"Under Chairman Powell's leadership, the FCC has undertaken the most thoughtful and thorough review of our nation's broadcast ownership rules in the history of their existence. First, Chairman Powell directed the formation of the Media Ownership Working Group to review these issues. He called for 12 FCC commissioned studies from divergent groups and the agency has received more than 18,000 comments in this proceeding alone. Then the Chairman and the Commissioners participated in a public hearing on media ownership in New York; and, to complete the process, the FCC sponsored its own field hearing in Virginia", said Rep. Tauzin.

He concluded that, "Clearly, the FCC has an extensive record on the subject. It is now time for the Commission to act. In a highly competitive, diverse 21st Century marketplace the idea of the federal government trying to regulate media ownership should be as offensive to Americans as trying to regulate free speech itself."

Similarly, Randolph May of the Progress and Freedom Foundation (PFF) wrote an item titled "Outdated federal regulations actually likely to impede diversification in media". He stated that "The rationale for the ownership restrictions is to promote diversity of viewpoint, the availability of local information and competition among media outlets. These are worthy public policy goals. But the outdated FCC regulations are no longer necessary to achieve them. Indeed, in an increasingly digital, technologically dynamic, competitive media environment, they are more likely than not to impede their realization."

Meanwhile, Rush Limbaugh, a conservative talk radio host, wrote in a statement that the critics, and Democrats, are really out to get him. He opined that "Critics worry that television could become like Rush Limbaugh. ... They are afraid that if consolidation happens in TV, everything is going to end up like the Fox News Channel, just like they think all of radio ended up as me and Limbaugh wannabes."

Limbaugh added that "This is where the Democrats continually miss the boat. Do people listen to radio stations because of who owns them? They don't. People are going to watch TV or listen to radio based on what's on it, not on who owns it, but the Democrats cannot get that through their head. They think if they can get the right group of owners, or shut out certain owners, then certain programming will be shut out. They are so out of the realm of reality here, my friends, they do not know what hit them. It started about 15 years ago, and they're nowhere near figuring it out."

He concluded that "There's a bunch of stuff out there that's popular (conservatives) that certain people (liberals) don't like and, since they can't beat that popularity in the market, they'll go after the owners and try to break it up and give it to other people. It's like the Fairness Doctrine. The Fairness Doctrine was not about fairness. The Fairness Doctrine was about making sure that nobody you want to hear got a radio show." (Parentheses in original.)

Microsoft and AOL Time Warner Settle Antitrust Lawsuit

5/29. Microsoft and AOL Time Warner announced that they settled the private antitrust lawsuit brought by AOLTW against Microsoft. They announced that Microsoft will pay $750 Million, license Internet Explorer royalty free, and work with AOLTW on digital media and digital rights management initiatives.

The two companies issued press releases. See, Microsoft release and AOLTW release. They also held a press conference. See, transcript of May 29, 2003, press conference of Bill Gates (Chairman and Chief Software Architect of Microsoft) and Richard Parsons (Ch/CEO of AOLTW). However, they did not release the text of a settlement agreement. See, full story.

9th Circuit Addresses Copyright Issues

5/29. The U.S. Court of Appeals (9thCir) issued its opinion [21 pages in PDF] in Rice v. Fox, a copyright infringement case.

Robert Rice owns the copyright to a home video titled "The Mystery Magician". It reveals how to perform several well known magic tricks and illusions. Fox Broadcasting Company developed and aired a series of television programs that revealed the secrets behind famous magic illusions. Rice asserts that Fox's shows were inspired and based upon his video.

Rice filed a complaint in U.S. District Court (CDCal) against Fox and other alleging copyright infringement, false advertising under the Lanham Act, and violation of the California Unfair Business Practices Act. The District Court granted Fox summary judgment on the copyright claim.

The Court of Appeals affirmed the grant of summary judgment on the copyright claim. In so doing, the Court discussed the elements of copyrights claims, the extrinsic test for copyright infringement, what constitutes substantial similarity, the doctrines of merger and scenes a faire, and the inverse ratio rule.

Tax Bill Signed, Without Broadband Expensing Provision or IP Deductions Limitation

5/28. The House passed the conference report on HR 2, the Jobs and Growth Reconciliation Tax Act of 2003, by a vote of 231-200 on May 22, 2003. See, Roll Call No. 225. The Senate passed the conference report on HR 2 by a vote of 50-50 on May 22. See, Roll Call No. 196. President Bush signed the bill on May 28. See, statement by Bush at signing ceremony.

The conference report deleted two technology related provisions that had been in the version of the bill passed by the Senate on May 15, 2003. (These three provisions were not in President Bush's proposal, or in the version of the bill passed by the House on May 9.)

First, the conference report leaves out a provision for the expensing of certain broadband expenditures. The provision, which was offered as an amendment by Sen. Conrad Burns (R-MT), Sen. Jay Rockefeller (D-WV) and others, would have amended the Internal Revenue Code to allow the expensing of certain broadband internet access expenditures. It was very similar to the stand alone bill, S 160, introduced on January 14, 2003, by Sen. Burns and others.

See, story titled "Sen. Burns and Sen. Baucus Introduce Broadband Expensing Bill" in TLJ Daily E-Mail Alert No. 587, January 21, 2003. See also, story titled "Senate Passes Tax Bill With Broadband Expensing Amendment" in TLJ Daily E-Mail Alert No. 664, May 19, 2003.

Second, the conference report leaves out Section 364 of the Senate bill titled "Limitation of Deduction for Charitable Contributions of Patents and Similar Property". This section would have limited the amount of deductions for charitable contributions of patents, copyrights, trademarks, trade secrets, and other intellectual property.

It would amended Section 170 of the Internal Revenue Code, which is codified at 26 U.S.C. § 170. This section provides for the deduction of charitable contributions made within the tax year. Subsection 170(e) provides for the deduction of certain contributions of ordinary income and capital gain property.

See, story titled "Senate Passes Tax Bill with Limitation of Deduction for Charitable Contributions of Intellectual Property" in TLJ Daily E-Mail Alert No. 664, May 19, 2003.

However, the conference report includes a section that revises the property subject to IRC Section 179 expensing to include certain software. It includes a Section 202, titled "Increased Expensing for Small Business". It amends Section 179 of the Internal Revenue Code, which is codified at 26 U.S.C. § 179, and titled "Election to expense certain depreciable business assets". The bill adds to the definition of "Section 179 property" several items, including certain off the shelf software.

Specifically, it adds "computer software (as defined in section 197(e)(3)(B)) which is described in section 197(e)(3)(A)(i), to which section 167 applies, and which is placed in service in a taxable year beginning after 2002 and before 2006". (Parentheses in original.)

Novell Asserts Intellectual Property Rights in UNIX Technology

5/28. Jack Messman, Ch/P/CEO of Novell, wrote a letter to Darl McBride, P/CEO of The SCO Group (aka Caldera Systems), regarding Linux, and proprietary rights related to UNIX.

UNIX is an operating system created by Bell Laboratories, then a part of AT&T, beginning in 1969. Linux is an open source operating system. The name is derived from Linus Torvalds, its creator, and Unix. Novell, like IBM, sells Linux based products.

SCO previously wrote to Linux customers asserting that SCO's intellectual property has been incorporated into Linux without its authorization. Also, SCO sued IBM alleging misappropriation of trade secrets, tortious interference, unfair competition and breach of contract in connection with IBM's alleged use of Caldera's proprietary UNIX code.

On May 28, Messman wrote that Novell, not SCO, owns relevant patents and copyrights in UNIX technology. He also wrote that SCO's claims are so vague that they fail to put Novell on notice of any allegedly infringing Linux code, and thus, any obligation to address the claims.

SCO Letter to Linux Customers. SCO wrote a letter to Linux customers on May 12, 2003. It asserted that "SCO holds the rights to the UNIX operating system software originally licensed by AT&T to approximately 6,000 companies and institutions worldwide (the ``UNIX Licenses´´). The vast majority of UNIX software used in enterprise applications today is a derivative work of the software originally distributed under our UNIX Licenses. Like you, we have an obligation to our shareholders to protect our intellectual property and other valuable rights."

The letter continued that "In recent years, a UNIX-like operating system has emerged and has been distributed in the enterprise marketplace by various software vendors. This system is called Linux. We believe that Linux is, in material part, an unauthorized derivative of UNIX."

The letter elaborated that "much of Linux has been built from contributions by numerous unrelated and unknown software developers, each contributing a small section of code. There is no mechanism inherent in the Linux development process to assure that intellectual property rights, confidentiality or security are protected. The Linux process does not prevent inclusion of code that has been stolen outright, or developed by improper use of proprietary methods and concepts."

The letter did not allege with specificity what UNIX code has been incorporated into Linux. It merely stated that "We have evidence that portions of UNIX System V software code have been copied into Linux and that additional other portions of UNIX System V software code have been modified and copied into Linux, seemingly for the purposes of obfuscating their original source."

The letter also stated that "We believe that Linux infringes on our UNIX intellectual property and other rights. We intend to aggressively protect and enforce these rights."

SCO Lawsuit Against IBM. On March 6, 2003, SCO filed a complaint in state court in Utah against IBM. This complaint contains factual allegations regarding the proprietary rights in UNIX technology, and how SCO came to possess them.

SCO asserted in this complaint that "During or about 1992, SCO's predecessor in interest, Novell, Inc. (``Novell´´), acquired all right, title and interest in and to the UNIX Software Code from AT&T for $750 million in Novell stock. For branding purposes, Novell renamed UNIX as ``UnixWare.´´" (Complaint, at ¶ 43.)

It further alleged that "Upon SCO’s acquisition of the UNIX assets from Novell, SCO owned the rights to all UNIX software designed for Intel processors. SCO retained its original UNIX product, SCO OpenServer, which remained dedicated to the relatively low-power computing tasks identified above. SCO also had acquired UnixWare from Novell, which was designed for high-power computing tasks, and competed directly against the related UNIX products of Sun, IBM, SGI and others." (Complaint, at ¶ 44.)

SCO further alleged in its complaint (at ¶¶ 57-59), that "When SCO acquired the UNIX assets from Novell in 1995, it acquired rights in and to all (1) underlying, original UNIX software code developed by AT&T Bell Laboratories, including all claims against any parties relating to any right, property or asset used in the business of developing UNIX and UnixWare; (2) the sale of binary and source code licenses to various versions of UNIX and UnixWare; (3) the support of such products and (4) the sale of other products that are directly related to UNIX and UnixWare. ... As a result of this acquisition, SCO became the authorized successor in interest to the original position of AT&T Technologies with respect to all licensed UNIX software products. ... There are two primary types of software licensing agreements between AT&T Technologies and its various licensees:
a) The AT&T-related software agreements are collectively referred to hereinafter as the ``AT&T UNIX Software Agreements.´´
b) The AT&T-related sublicensing agreements are collectively referred to hereinafter as the ``AT&T UNIX Sublicensing Agreements.´´"

Finally, SCO alleged (at ¶¶ 59-60) that "The AT&T UNIX Software Agreements and the AT&T UNIX Sublicensing Agreements are sometimes collectively referred to hereinafter as the ``AT&T UNIX Agreements.´´" SCO concluded that SCO "is successor in interest to, and owner of, all contractual rights arising from the AT&T UNIX Agreements."

IBM filed its answer [17 page PDF scan] on April 30, 2003. It asserted that "IBM has the irrevocable, fully paid-up, and perpetual rights to use the ``proprietary software´´ that it is alleged to have misappropriated or misused."

Novell Letter to SCO. Novell's Messman wrote in his May 28 letter to SCO's McBride that "SCO continues to say that it owns the UNIX System V patents, yet it must know that it does not. A simple review of U.S. Patent Office records reveals that Novell owns those patents."

He also stated that "Importantly, and contrary to SCO's assertions, SCO is not the owner of the UNIX copyrights. Not only would a quick check of U.S. Copyright Office records reveal this fact, but a review of the asset transfer agreement between Novell and SCO confirms it. To Novell's knowledge, the 1995 agreement governing SCO's purchase of UNIX from Novell does not convey to SCO the associated copyrights. We believe it unlikely that SCO can demonstrate that it has any ownership interest whatsoever in those copyrights."

SCO Statement Regarding Novell Letter. SCO promptly responded to Messmer's letter. It released a statement which claims that "SCO owns the contract rights to the UNIX operating system. SCO has the contractual right to prevent improper donations of UNIX code, methods or concepts into Linux by any UNIX vendor."

"Copyrights and patents are protection against strangers. Contracts are what you use against parties you have relationships with. From a legal standpoint, contracts end up being far stronger than anything you could do with copyrights", added SCO. "SCO's lawsuit against IBM does not involve patents or copyrights. SCO's complaint specifically alleges breach of contract, and SCO intends to protect and enforce all of the contracts that the company has with more than 6,000 licensees."

Microsoft. SCO stated in a May 19, 2003 release that SCO "has licensed its UNIX technology including a patent and source code licenses to Microsoft Corporation." See also, story titled "Microsoft Licenses Technology at Issue in Caldera v. IBM" in TLJ Daily E-Mail Alert No. 669, May 29, 2003.

German Software Group Threatens to Sue SCO Over Linux Claims

5/28. LinuxTag, a software association located in the nation of Germany, issued a release in which it stated that it sent a notice on May 23, 2003, to SCO Group's German subsidiary, SCO Group GmbH, demanding that it desist from unfair competitive practices. LinuxTag asserts that "SCO Group is sowing uncertainty among the community of GNU/Linux users, developers and suppliers."

LinuxTage added that it "demanded that the German SCO subsidiary retract its claims regarding ownership of Linux kernel code by this Friday, May 30, or make its evidence public."

SCO (aka Caldera) wrote a letter to Linux customers on May 12, 2003. It asserted that "SCO holds the rights to the UNIX operating system software originally licensed by AT&T to approximately 6,000 companies and institutions worldwide". The letter continues that "In recent years, a UNIX-like operating system has emerged and has been distributed in the enterprise marketplace by various software vendors. This system is called Linux. We believe that Linux is, in material part, an unauthorized derivative of UNIX."

LinuxTag describes itself in its web site: "LinuxTag is Europe's largest annual convention for Free Software focusing on GNU/Linux". The GNU Project web site states that Linux is the kernel of the GNU operating system.

Media Security and Reliability Council Considers Recommendations

5/28. The Media Security and Reliability Council (MSRC) held a meeting at which it considered Best Practices Recommendations [5 pages in MS Word] to ensure effective delivery of emergency information to the public during terrorist attacks, natural disasters, and other emergencies. The MSRC's Advisory Committee is scheduled to complete voting on these recommendations by June 18, 2003.

The MSRC provides recommendations to the Federal Communications Commission (FCC) and industry. Dennis FitzSimons, P/CEO of the Tribune Company, is its Chairman. It met at the FCC's headquarters building in Washington DC.

The lead recommendation is that "All media companies should reassess their vulnerabilities considering the possibility of deliberate attacks in addition to natural disasters and equipment failures and take appropriate measures to prevent loss of service and to expedite rapid recovery."

Another recommendation is that "Government should coordinate development of a Media Common Alert Protocol (MCAP). This protocol should be designed to deliver emergency messages via digital networks. It should flow over all methods of digital transport and be received by all digital receivers. This protocol should be optimized for point-to-multi-point networks and devices only."

These recommendations deal primarily with existing broadcast radio and TV, cable and DBS technologies. However, the recommendations also state that "Research into development of alternative, redundant and/or supplemental means of communicating emergency information to the public should be accelerated." In particular, "An expanded government partnership with the media, consumer electronics and computer industries should harness free market innovation, foster competition, and enhance interoperability to meet changing national warning needs."

The FCC issued a release [3 pages in PDF] summarizing the meeting, and listing some best practices recommendations.

Tom RidgeTom Ridge, Secretary of the Department of Homeland Security, stated in his remarks at the meeting that "We need to protect those means by which we communicate timely and accurate information to the public during periods of crisis".

Ridge also stated that "You should know that, during the top-off exercise that you-all covered and commented upon last week, where we had the radiological device detonated in Seattle and the biological challenge in, the plague, in Chicago, that for the purposes of the exercise, we engaged Frank Sesno to set up a VNN network so that we could work through the entire five days through the media, because we understand that communication during times of crisis is a critical part of what we do, so literally, every day."

Ridge added that "You all own or control critical pieces of infrastructure -- communication. We need you during times of crisis, and I suspect that some of your best practices will involve how you can actually protect your assets, your physical and your cyber assets."

More News

5/28. The Small Business Administration (SBA) published a notice in the Federal Register announcing that it proposes to grant a waiver of the Nonmanufacturer Rule for "overhead fiber optic groundwire and ancillary hardware components". The Nonmanufacturer Rule is found at 13 CFR 121.406(b). The notice also requests public comments, by May 30, 2003. The notice states that the reason for the proposed waiver is that "there are no small business manufacturers or processors in the Federal market". However, the notice does not explain why the SBA proposes to take action with only two days notice, during a holiday week. See, Federal Register, May 28, 2003, Vol. 68, No. 102, at Pages 31641-31642.

5/28. BellSouth, SBC, and Verizon announced that they "have adopted a set of common technical requirements based on established industry standards and specifications for a technology known as fiber to the premises (FTTP)". They stated that this "will enable equipment manufacturers to more cost-effectively develop and build FTTP equipment". See, BellSouth release and SBC release.

5/28. The Progressive Policy Institute (PPI), a Democratic think tank, released a report [PDF] titled "String of Pearls or Multi-Car Pile Up? The U.S. Negotiates New Trade Agreements with 15 Countries". The report notes that the Bush administration is ambitiously pursuing 15 free trade agreements (FTAs) with nations such as Singapore and Chile, but that "larger trade initiatives are struggling". It states that "Europe's farm lobby has stalled the World Trade Organization's (WTO) Doha Round. The Free Trade Area of the Americas (FTAA) faces both an economic crisis in much of South America and an apparently indifferent administration. And Russia has slowed the pace of its negotiations on membership in the WTO." It states that "FTAs are not a substitute for success on genuinely big issues." The report was written by Edward Gresser.

5/28. Rambus announced in a release that the U.S. District Court (NDCal) "has dismissed with prejudice the consolidated amended complaint in a shareholder suit against Rambus entitled ``In re: Rambus, Inc. Securities Litigation.´´" Rambus added that "The dismissed shareholder suit arose from allegations concerning Rambus' 1991 - 1995 attendance at a standard setting body called JEDEC. The case consolidated multiple purported class actions filed against Rambus in 2001. Although no class had yet been certified, the court had appointed lead plaintiffs in 2001. These lead plaintiffs recently moved for dismissal following rulings favoring Rambus from the Court of Appeals for the Federal Circuit." See also, TLJ story titled "Federal Circuit Rules in Rambus v. Infineon", January 29, 2003.

Trade News

5/27. The Office of the U.S. Trade Representative (USTR) announced that the U.S. and Chile will sign the U.S. Chile Free Trade Agreement (FTA) on Friday, June 6, 2003, in Miami, Florida. See, USTR release. On April 3, 2003, the USTR released a draft text of the U.S. Chile FTA. It is a large document. Several chapters pertain specifically to technology and communications. See especially, Chapter 15 [3 pages in PDF] pertaining to electronic commerce, Chapter 17 [32 pages in PDF] regarding intellectual property rights, and Chapter 13 [16 pages in PDF] regarding telecommunications. See also, story titled "USTR Releases US Chile FTA" in TLJ Daily E-Mail Alert No. 637, April 4, 2003.

People and Appointments

5/27. Fredrick Wentland was named Associate Administrator for Spectrum Management at the Department of Commerce's National Telecommunications and Information Administration (NTIA). He has worked for the NTIA for 22 years. He replaces William Hatch, who retired last year.

5/27. Kamil Idris was re-appointed to a second term as Director General of the World Intellectual Property Organization (WIPO). See, WIPO release.

More News

5/27. The Supreme Court denied certiorari, without opinion, in Texas Digital Systems v. Telegenix, S.C. No. 02-1484. See, Order List [9 pages in PDF] at page 3. This is a patent infringement case involves controlling the color of pixels in a LED display. See, story titled "Fed Circuit Rules in Patent Case Involving LED Display" in TLJ Daily E-Mail Alert No. 531, October 21, 2003.

5/27. The Supreme Court issued several non tech related opinions. It also announced that it "will take a recess from today until Monday, June 2, 2003." See, Order List [9 pages in PDF] at page 11.

5/27. A trial jury of the U.S. District Court (EDVa) returned its verdict in MercExchange v. Ebay, a patent infringement case. The case involves U.S. Patent No. 5,845,265, titled "Consignment nodes", and other patents pertaining to online sales. The jury found willful infringement, and awarded $35 Million in damages.

5/27. The Federal Communications Commission (FCC) announced that it will delay Auction 53, regarding licenses in the Multichannel Video Distribution and Data Service (MVDDS), which had been scheduled to start on June 25, 2003. See, notice in Federal Register, May 27, 2003, Vol. 68, No. 101, at pages 28825 - 28826.

5/27. The Federal Communications Commission (FCC) published its semi annual Unified Agenda of Federal Regulatory and Deregulatory Actions. See, Federal Register, May 27, 2003, Vol. 68, No. 101, at pages 31310 - 31359.

5/27. The Federal Trade Commission (FTC) published its semi annual Unified Regulatory Agenda. See, Federal Register, May 27, 2003, Vol. 68, No. 101, at pages 31398 - 31404.

5/27. The Department of Homeland Security (DHS) published its semi annual Unified Regulatory Agenda, See, Federal Register, May 27, 2003, Vol. 68, No. 101, at pages 30280 - 30388.

5/27. The Department of Justice (DOJ) published its semi annual Unified Regulatory Agenda, See, Federal Register, May 27, 2003, Vol. 68, No. 101, at pages 30498 - 30547.

5/27. The Department of Justice's Antitrust Division and the Federal Trade Commission (FTC) filed their joint amicus curiae brief on the merits with the Supreme Court in Verizon v. Trinko, a case involving the application of Section 2 of the Sherman Antitrust Act, 15 U.S.C. § 2, in the context of telecommunications. See also, TLJ story titled "Supreme Court Grants Certiorari in Verizon v. Trinko", March 10, 2003.

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