News from November 1-5, 2004

Cato Panel Criticizes Spyware Bills

11/5. The Cato Institute held a panel discussion titled "Here We Go Again: Congress Attempts to Outlaw Spyware". The speakers were Commissioner Orson Swindle of the Federal Trade Commission (FTC), Jim Harper, Cato's Director of Information Policy Studies, and Susan Chamberlin, Cato's VP for Government Affairs. They criticized pending spyware bills.

The House approved two spyware bills before recessing for the general election. The Senate Commerce Committee approved its own bill. The Congress could enact a spyware bill when it reconvenes later this month.

Commissioner Swindle suggested that spyware legislation could do more harm than good. He also stated that in the area of information technology, "by the time we solve the problem legislatively, the problem no longer exists", because industry has already solved it. He said that he believes that industry can solve this problem.

See, full story.

9th Circuit Construes Copyright Restoration Section

11/5. The U.S. Court of Appeals (9thCir) issued its opinion [5 pages in PDF] in Laparade v. Ivanova, in which the Court of Appeals affirmed the District Court's judgment regarding the rights to and funds from 34 Spanish language movies.

17 U.S.C. 104A(b), which pertains to restoration of copyrights, provides in part that "A restored work vests initially in the author or initial rightholder of the work as determined by the law of the source country of the work." In this case, the source country is Mexico. Hence, the U.S. District Court (DCCal) had to determine who is the author of the works under the law of Mexico.

The District Court concluded that the production company of the movie is the author under the laws of Mexico. The Court of Appeals affirmed, following the opinion [25 pages in PDF] of the U.S. Court of Appeals (5thCir) in Alameda Films SA de CV v. Authors Rights Restoration Corp., 331 F.3d 472, cert. denied, 124 S. Ct. 814 (2003).

This case is Eduardo Moreno Laparade and Authors' Rights Restoration Corporation v. Mario Moreno Ivanova, individually and as executor for the estate of Mario Moreno Reyes, Columbia Pictures Industries, Natasha Gelman, and Joyce Jett, U.S. Court of Appeals for the 9th Circuit, App. Ct. No. 03-55238, an appeal from the U.S. District Court for the Central District of California, D.C. No. CV-97-00615-WJR, Judge William Rea presiding. The Court of Appeals issued a per curiam opinion that was joined by David Thompson, Barry Silverman, and Kim Wardlaw.

Rep. Oxley Asks for GAO Report on E-Commerce and Real Estate Services

11/4. Rep. Michael Oxley (D-OH), the Chairman of the House Financial Services Committee, wrote a letter [PDF] to the Government Accountability Office (GAO) in which he requested that it "review and report on how the provision of real estate services may be affected by or benefit from new forms of information technology and electronic commerce."

Rep. Mike OxleyRep. Oxley (at right) asked the GAO to "assess and report on: (1) how the residential real estate transaction is evolving as a result of electronic commerce; (2) any barriers to greater use electronic commerce in residential real estate transactions; (3) how removal of those barriers could benefit both consumers and real estate professionals; and, (4) how those changes may affect homeownership."

He also posed a number of specific questions. For example, he asked, "How does consumer and industry use of information technology in residential real estate compare to the use in other areas of commerce?", "How could greater use of information technology benefit consumers and residential real estate professionals?", and "What legal or regulatory barriers or self-regulatory practices hinder greater innovation and modernization of residential real estate transactions?"

He also asked the GAO to examine multiple listing services. He wrote that "please review the role of multiple listing services (MLSs). The MLSs effectively are the residential real estate marketplaces -- where home sellers provide essential information to buyers. Today all, or virtually all, MLSs appear to provide information about homes for sale in electronic form, yet there appear to be significant limitations on the accessibility of this information. Please review and explain any rules for Internet display of MLS information, and any other relevant regulatory structure."

The Federal Trade Commission (FTC) and Department of Justice (DOJ) have examined legal barriers to electronic commerce in many sectors of the economy, including real estate. For example, on March 20, 2003, the FTC and the DOJ's Antitrust Division wrote a letter to the Georgia State Bar's Standing Committee on the Unlicensed Practice of Law in response to its inquiry regarding preparation of deeds and other real estate conveyance instruments. The FTC and DOJ focused on the impact that an overly broad restriction on the practice of law would have on internet competition and electronic commerce.

The DOJ and FTC argued that "these potential restrictions are likely to impede substantially the growth of e-commerce. The Internet is changing the way many goods and services are delivered, and consumers benefit from the increased choices and convenience and decreased costs that the Internet can deliver." They added that "when restrictions may foreclose potential new Internet competitors, one should proceed cautiously, mindful of the unintended consequences that may unduly limit the choices of consumers." See, story titled "FTC/DOJ Oppose Restraints on E-Commerce Posed by Unlicensed Practice of Law Rules" in TLJ Daily E-Mail Alert No. 629, March 24, 2003.

Similarly, the FTC and DOJ wrote a letter to the American Bar Association (ABA) on December 20, 2002. They argued that "The Internet is changing how many goods and services are delivered, and consumers benefit from the increased choices and convenience and decreased costs that the Internet can deliver. Yet over-broad restrictions on the practice of law can impair the growth of e-commerce by (1) prohibiting or increasing the costs of electronic provision of forms or other legal self-help computer programs, (2) negatively impacting Internet mortgage lenders who rely on lay real estate closers, and (3) restricting the ability of providers to experiment and develop new forms of Internet services touching on legal matters that could benefit consumers directly."

MPAA Members to File Lawsuits Against Individual Infringers

11/4. The Motion Picture Association of America (MPAA) announced that its member companies will begin filing complaints in federal courts against individuals alleging infringement of copyrighted movies on peer to peer systems. Record companies have already filed over six thousand similar lawsuits against individuals.

On Thursday, November 11, 2004, Dan Glickman, the recently selected Chairman and CEO of the MPAA, will give a luncheon address titled "The Motion Picture Industry in the 21st Century -- A New Golden Age?" at the National Press Club, in Washington DC.

Adam Thierer, Director of Telecommunications Studies at the Cato Institute, wrote in a essay, "If not direct enforcement against infringers, what else? Whereas many of the other enforcement strategies the industry has pursued in recent years are excessive and unwise, targeted lawsuits against individuals who violate the copyright laws are probably the most sensible and just way of protecting copyrights without destroying new technologies in the process."

Alan Davidson, Associate Director of the Center for Democracy and Technology (CDT), stated in a release that "Lawsuits against infringers are an unfortunate, but appropriate, part of protecting artists in the digital age. It is unhealthy for our country, and unfair to copyright holders, for large numbers of people to routinely violate the law of the land".

Gigi Sohn, President of Public Knowledge, stated in a release that "Public Knowledge acknowledges the potential threat that large scale unauthorized file trading of movies may pose, and has encouraged the motion picture industry to protect its copyrights by pursuing strategically targeted, appropriate legal action against actual infringers, particularly in the case of pre-release films."

Public Knowledge is one of the Washington DC based interest groups that opposes S 2560, the "Inducing Infringement of Copyrights Act of 2004", a bill that would create a new cause of action for intentional inducement of infringement. The MPAA supports passage of S 2560.

Bush Discusses Plans for Second Term

11/4. President Bush met with his cabinet, and then spoke, and answered questions from reporters. As with his speeches leading up to the election, he said little that relates to information technology or communications policies. See, transcript.

He did urge the Congress "to pass an effective intelligence reform bill that I can sign into law" when it meets later this month. This bill will likely include some technology related provisions.

George BushBush (at right) also stated that "In the Cabinet, there will be some changes. I don't know who they will be. It's inevitable there will be changes. It happens in every administration." He also stated that "I have made no decisions on my Cabinet and/or White House staff", or about Supreme Court nominees.

He discussed numerous issues that he plans to address in his second term. He discussed appropriations bills and the budget deficit. He discussed the economy and jobs. He discussed education reform, including strengthening "accountability standards". He discussed "reforming Social Security". He discussed "working on Middle Eastern peace", promoting "freedom and democracy" in the Middle East, and "chasing down the terror networks. He discussed tax "simplification" and "tax relief". He discussed "legal reform and regulatory reform" and limiting "frivolous lawsuits that are driving up the cost of health care and hurting doctors and patients".

However, he did not discuss broadband deployment, reform of telecommunications regulation, intellectual property issues, or any other technology related issues.

People and Appointments

11/4. Novell announced in a release that "Chris Stone, Vice Chairman, Office of the CEO, has left the Company to pursue other opportunities. Stone had responsibility for engineering, product management, and alliances. No successor has been named. On an interim basis, Stone's responsibilities will be overseen by Jack Messman, Chairman and CEO of Novell."

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11/4. The Federal Trade Commission (FTC) filed a civil complaint [13 pages in PDF] in U.S. District Court (DNJ) against Norvergence, Inc. alleging unfair or deceptive trade practices, Section 5(a) of the FTC Act, which is codified at 15 U.S.C. 45(a), in connection with the sale and financing of telecommunications services and related products. See also, FTC release.

Appeals Court Holds No Infringement by GU87 Phone

11/3. The U.S. Court of Appeals (FedCir) issued its opinion [6 pages in PDF] in Colida v. Matsushita, affirming the District Court's summary judgment that the Matsushita telephone at issue does not infringe two design patents of Colida.

Tony Colida owns U.S. Design Patent No. Des. 321,347 and U.S. Design Patent No. Des. 321,349. Matsushita Electric Corporation for America owns U.S. Design Patent No. Des. 477,581, and markets a cellular photo phone in the U.S. that displays the design of the '581 patent as the Panasonic GU87.

The District Court found no similarity between either the '347 or '349 patents and the GU87 telephone, and granted summary judgment to Matsushita.

The Court of Appeals affirmed, applying the test for infringement of a design patent articulated by the Supreme Court in Gorham Co. v. White, 81 U.S. 511 (1871). The Supreme Court wrote then that infringement of a design patent occurs "if, in the eye of an ordinary observer, giving such attention as a purchaser usually gives, two designs are substantially the same, if the resemblance is such as to deceive such an observer, inducing him to purchase one supposing it to be the other, the first one patented is infringed by the other."

This case is Tony Colida v. Matsushita Electric Corporation for America, U.S. Court of Appeals for the Federal Circuit, App. Ct. No. 04-1348, an appeal from the U.S. District Court for the District of New Jersey, D.C. No. Civ. No. 03-2904 (WGB). The per curiam opinion of the Court of Appeals was joined by Judges Clevenger, Gajarsa and Prost.

FCC Fines ACR Electronics for Marketing Uncertified RF Devices

11/3. The Federal Communications Commission (FCC) released a Notice of Apparent Liability for Forfeiture (NAL) that proposes to fine ACR Electronics, Inc. $75,000 for violating the FCC's rules prohibiting the marketing to the general public of radio frequency devices without a disclaimer that they had not been certified by the FCC.

At issue is ACR's consumer products named Public Locator Beacon, or PLB. ACR asserted that it never marketed the products to the general public. However, it advertised in outdoor and sporting publications. The NAL states that "we find that ACR apparently willfully and repeatedly violated Section 302(b) of the Act and Section 2.803(a) of the Rules, by advertising the PLB-200 to the general public, prior to certification without the disclaimer notice required by Section 2.803(c)."

The FCC adopted this NAL on October 27, but released it on November 3, 2004. This NAL is FCC 04-259. See also, FCC release.

FCC Chairman Michael Powell addressed enforcement of the FCC's rules regarding RF devices in a speech [5 pages in PDF] on October 27, 2004. He addressed rules applicable to wireless internet service providers (WISPs). He stated that "I hear concerns from the WISP community that -- while it's not a significant number -- not everyone is playing by the rules -- that a few folks out there are using non-FCC certified equipment or are installing power amplifiers to boost their signals beyond allowable limits. Understand this directly from me -- we are fully committed to enforcing our technical rules."

Sen. Grassley Addresses Trade Promotion Authority and Other Trade Issues

11/3. Sen. Charles Grassley (R-IA), who won re-election to the Senate on November 2, 2004, and will continue as Chairman of the Senate Finance Committee, released a statement regarding his legislative agenda for the upcoming 109th Congress.

Sen. Charles GrassleySen. Grassley (at right) wrote about trade issues. He wrote that "Early next year, we expect to review a likely request by President Bush for the renewal of Trade Promotion Authority. It's set to expire next year and will be renewed automatically if the President requests it, unless Congress votes to disapprove it. I'm pleased with the trade agreements the President and Congress have advanced under Trade Promotion Authority."

Trade promotion authority (TPA), which is also known as fast track, generally gives the President authority to negotiate trade agreements which can only be voted up or down, but not amended, by the Congress. TPA strengthens the bargaining position of the President, and the U.S. Trade Representative (USTR), in trade negotiations with other nations. FTAs benefit technology companies that sell products and services abroad.

TPA was enacted in 2001 by passage of HR 3009, the "Andean Trade Preference Act", which also includes TPA. The House had previously passed an earlier version of TPA in HR 3005, the "Bipartisan Trade Promotion Authority Act of 2001". HR 3009 became Public Law No. 107-210.

Section 2103 of the Act provides that "the President -- (A) may enter into trade agreements with foreign countries before -- (i) June 1, 2005; or (ii) June 1, 2007, if trade authorities procedures are extended under subsection (c) ..." Subsection (c) provides, in part, that "If the President is of the opinion that the trade authorities procedures should be extended ... the President shall submit to the Congress, not later than March 1, 2005, a written report that contains a request for such extension ..."

Sen. Grassley also wrote that "we have to work out how to advance the Central American Free Trade Agreement, against some opposition from unions and sugar producers who oppose increased sugar imports".

Finally, he stated that "I also hope well be able to open up world services and agricultural markets to U.S. exports through World Trade Organization negotiations. So far, weve taken full advantage of trade opportunities, and Im confident we wont let them wither on the vine."

Democrats May Lose Seat on Senate Finance Committee

11/3. Sen. Charles Grassley (R-IA) will continue as Chairman of the Senate Finance Committee in the 109th Congress. Sen. Max Baucus (D-MT) will continue as the ranking Democrat on the Committee.

Sen. Grassley wrote in a statement released on November 3, 2004 that "The bipartisan tradition will continue. Senator Baucus and I have worked together many times to move legislation forward, and I believe well do that many more times. Even with the Republican gain of Senate seats, bipartisanship will still be the grease that keeps the legislative engine moving."

The Senate Finance Committee currently has 11 Republicans and 10 Democrats. Several members will not return for the 109th Congress. Sen. John Breaux (D-LA), Sen. Don Nickles (R-OK), and Sen. Bob Graham (D-FL) are retiring. Sen. Tom Daschle (D-SD) lost his race for re-election. This would bring the Committee down to 10 Republicans and 7 Democrats.

Sen. Grassley's press office issued a statement that the ratio is expected to become 11 Republicans and 9 Democrats, because the overall Republican majority in the Senate grew from 51 to 55. If this is the case, then one new Republican member will be appointed to the Committee, and two new Democratic members will be appointed.

Sen. Mike Crapo (R-ID), who won re-election in Idaho on November 2 with 99% of the vote, is next in line on Republican side for appointment to this Committee, based upon his seniority.

Several Free Trade Advocates Will Not Return for the 109th Congress

11/ 3. Two of the consequences of the elections for the 109th Congress are that several of the key proponents of free trade will not return in January, and there will be fewer free trade Democrats. These changes may be significant because the House was evenly divided on some trade issues, such as giving the President trade promotion authority (TPA).

In contrast, there is wider support in the Senate for free trade and TPA than in the House.

A key measure of the divide in the House is the roll call vote on December 6, 2001 on passage of HR 3005, the "Bipartisan Trade Promotion Authority Act of 2001". The House approved this bill by a vote of 215-214.

Moreover, the vote broke down largely on partisan lines. 194 Republicans voted for the bill, and 23 voted against. 21 Democrats voted for the bill, and 189 voted against. See, Roll Call No. 481 in 107th Congress.

Thus, while House Republicans have been overwhelmingly in favor trade promotion authority (TPA), and hence, the free trade agreements (FTAs) that follow from TPA, the minority of Democratic support can be essential for obtaining a majority in the House.

One of the consequences of the November 2 House elections is that some key supporters of free trade will not be present in the 109th Congress.

Rep. Cal DooleyRep. Cal Dooley (D-CA) (at right), who has been a leader and organizer of free trade Democrats, did not not run for re-election. Democrat Jim Costa won his seat by defeating Republican Roy Ashburn.

Moreover, several free trade Republicans who currently sit on the key Trade Subcommittee of the House Ways and Means Committee will not return. Rep. Phil Crane (R-IL), the Chairman of the Trade Subcommittee, narrowly lost to Democrat Melissa Bean in the Illinois 8th District. Rep. Amo Houghton (R-NY), whose New York District is home to many Corning workers, is another member of the Trade Subcommittee who is retiring.

Rep. Jennifer Dunn (R-WA), whose Washington District is home to many Microsoft workers, is also retiring. Republican Dave Reichert won her seat in Congress. However, he will not receive her seat and seniority on the Trade Subcommittee.

Another consequence of the November 2 House elections is that there will be fewer free trade Democrats. In addition to Rep. Dooley, several other free trade Democrats either did not run, or were defeated on November 2.

Rep. Brad Carson (D-OK), who voted for TPA, ran for the Senate seat being vacated by Sen. Don Nickles (R-OK), and lost to former Rep. Tom Coburn.

Rep. Chris John (D-LA), who voted for TPA, ran for the Senate seat being vacated by Sen. John Breaux (D-LA), and lost to Rep. David Vitter (R-LA).

Rep. Ken Lucas (D-KY), who voted for TPA, is retiring. His seat was won by Republican Geoff Davis.

Rep. Baron Hill (D-IN), who voted for TPA, lost his bid for re-election to Republican Mike Sodrel.

Rep. Charles Stenholm (D-TX), who voted for TPA, lost his bid for re-election. He was a victim of the Republican redistricting plan in Texas. Incumbent Rep. Randy Neugebauer (R-TX) won in the new 19th District.

Also, Rep. Ralph Hall (R-TX), who voted for TPA as a Democrat, became a Republican in January of 2004.

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11/3. The National Archives and Records Administration (NARA) published a notice in the Federal Register that describes and sets the comment deadline (January 3, 2005) for its notice of proposed rule making regarding changing its rules to permit the destruction of certain e-mail records of federal agencies. The NARA proposes to allow the destruction of "very short-term temporary e-mail". See, Federal Register, November 3, 2004, Vol. 69, No. 212, at Pages 63980 - 63981.

Summary of the Senate Elections

11/2. Going into the election, there were 51 Republicans and 48 Democrats, and Sen. James Jeffords (VT), who voted with Democrats for organizational purposes. At the start of the 109th Congress, there will be at least 53 Republicans, and probably 55, depending on the outcome of close races. Senate Republicans retained control of the Senate, and slightly expanded their margin. See, full story.

Summary of the House Elections

11/2. Going into this election there were 227 Republicans, 205 Democrats, and one independent (Rep. Bernie Sanders of Vermont, who votes as a Democrat for organizational purposes). There were 2 vacancies, created by the recent resignations of Rep. Porter Goss (R-FL) and Rep. Doug Bereuter (R-NE). Also, Rep. Rodney Alexander (R-LA) switched parties in August.

At the start of the 109th Congress, there will be 231 Republicans, 203 Democrats, and Bernie Sanders. Thus, the Republicans retained control of the House, and slightly increased their margin.

Also, a few key members were defeated. Rep. Phil Crane (R-IL), the Chairman of the House Ways and Means Committee's Trade Subcommittee, lost. Rep. Martin Frost (D-TX), the ranking Democrat on the Rules Committee, lost, after redistricting placed him in the same district as Rep. Pete Sessions (R-TX).

House Commerce Committee.

Rep. Billy Tauzin (R-LA) is retiring. He resigned his committee chairmanship early this year. Rep. Joe Barton (R-TX), the current Chairman of the House Commerce Committee, won re-election with 66 % of the vote. The ranking Democrat, Rep. John Dingell (D-MI), won with 71%.

Rep. Jim Greenwood (R-PA) is retiring. He was the Chairman of the Subcommittee on Oversight and Investigations. He presided over investigations into waste, fraud and abuse in the Federal Communications Commission's (FCC) e-rate subsidy program for schools and libraries. Also, Rep. Greenwood and Rep. Tauzin were two of the strongest supporters on the Commerce Committee of legislation to create a quasi intellectual property right in collections of data.

Rep. Peter Deutsch (D-FL) did not run for re-election. Democrat Debbie Schultz won his seat. Rep. Deutsch sits on both the Telecom and Consumer Protection Subcommittees.

Rep. Chris John (D-LA) did not run for re-election in Louisiana's 7th District. He lost a bid to become a Senator.

Rep. Heather Wilson (R-NM) defeated Democrat Richard Romero in the New Mexico 1st District. She has been an active proponent of anti-spam legislation. She is a member of the Telecom Subcommittee.

Rep. Richard Burr (R-NC) did not run for re-election to the House. He ran for the Senate seat being vacated by Sen. John Edwards (D-NC), and won.

Rep. Karen McCarthy (D-MO) is retiring.

Hence, there will be several vacancies on the Committee to be filled in January of 2005 when the 109th Congress meets.

Rep. Ralph Hall (R-TX), who switched parties in January, and retained his Commerce Committee membership, won easily as a Republican. Other Democrats in Texas did not fare so well following redrawing of district boundaries by Texas Republicans.

Rep. Fred Upton (R-MI), the Chairman of the Subcommittee on Telecommunications and the Internet, won easily in the Michigan 6th District. Rep. Cliff Stearns (R-FL) won easily in the Florida 6th District. Rep. Ed Markey (D-MA) won in Massachusetts.

Rep. Chris Cox (R-CA), a leading proponent of extending the internet tax ban, and opponent of internet regulation, won in California. He is a member of the Telecom Subcommittee. Rep. Butch Otter (R-ID) won re-election easily in Idaho. He has opposed the Bush administration on media ownership, as well as on PATRIOT Act extensions. Rep. Barbara Cubin (R-WY), who is a member of the House Commerce Committee, and its Telecom Subcommittee, narrowly won re-election in Wyoming.

House Judiciary Committee.

Democrats and liberals worked hard to defeat many Republicans on the House Judiciary Committee in 2000, in retaliation for their role in the impeachment of former President Bill Clinton. In contrast, the 2004 elections were relatively uneventful, even for the impeachment managers.

In 2000, former Rep. James Rogan (R-CA) lost to Rep. Adam Schiff (D-CA). Rogan also held a seat on the Courts the Internet and Intellectual Property Subcommittee (CIIP), where he worked to protect the intellectual property rights of the California entertainment and technology industries. Rep. Schiff was assigned to the House Judiciary Committee, and its CIIP Subcommittee, where he too has worked to protect the intellectual property rights of the California entertainment and technology industries. Rep. Schiff won re-election with 65% of the vote.

Rep. Lamar Smith (R-TX), Chairman of the CIIP Subcommittee, and Rep. Howard Berman (D-CA), the ranking Democrat on the CIIP Subcommittee, both won easily. Technophiles Rep. Rick Boucher (D-VA), Rep. Bob Goodlatte (R-VA), and Rep. Zoe Lofgren (D-CA), all of whom are members of the CIIP Subcommittee, won easily.

Historically, members have left the House Judiciary Committee for more preferred committee assignments.

House Ways and Means Committee.

The House Ways and Means Committee has jurisdiction over technology related tax and trade issues. For example, bills pertaining to permanent normal trade relations (PNTR) for China, granting the President trade promotion authority (TPA), and approval of free trade agreements (FTAs), have gone through this Committee.

Notably, the 2004 election saw the loss or retirement of numerous members, including several key free trade proponents.

Rep. Phil Crane (R-IL), the Chairman of the House Ways and Means Committee's Trade Subcommittee, narrowly lost to Democrat Melissa Bean in the Illinois 8th District.

Rep. Amo Haughton (R-NY), a member of the Trade Subcommittee, is retiring. Rep. Jennifer Dunn (R-WA), whose Washington District is home to many Microsoft workers, is retiring. She too is a member of the Trade Subcommittee, and a leading free trade advocate.

With the departure of Rep. Crane, Rep. Houghton and Rep. Dunn, Rep. Clay Shaw is the Republican with the most seniority on the Trade Subcommittee. He is currently the Chairman of the Social Security Subcommittee. Next in seniority is Rep. Dave Camp (R-MI). Both Rep. Shaw and Rep. Camp won re-election.

Other members or the Ways and Means Committee are retiring. Rep. Scott McGinnis (R-CO) is retiring. Rep. Jerry Klezka (D-WI) is retiring. There are now many seats to be filled.

Rules Committee

Former Rep. Porter Goss (R-FL) was a member of the House Rules Committee, and Chairman of Intelligence Committee. He resigned to become Director of the Central Intelligence Agency (CIA).

Rep. Martin Frost (D-TX), the ranking Democrat on the Rules Committee, lost to Rep. Pete Sessions (R-TX), a Republican member of the Rules Committee.

Rep. David Dreier (R-CA), the Chairman of the Committee, coasted to victory over Democrat Cynthia Matthews in the 26th District.

Texas Redistricting Massacre.

Texas Republicans redrew district boundaries to favor Republican candidates. Previously, Texas Democrats had drawn district boundaries to favor Democrats. The Republican redistricting was a success.

Incumbent Rep. Pete Sessions (R-TX) beat incumbent Rep. Martin Frost (D-TX) in the new 32nd District.

Republican Ted Poe defeated incumbent Rep. Nick Lampson (D-TX) in the new 2nd District.

Incumbent Rep. Randy Neugebauer (R-TX) easily defeated Rep. Charles Stenholm (D-TX) in the new 19th District.

Republican Louis Gohmert easily beat Rep. Max Sandlin (D-TX) in the new 1st District.

Also, Rep. Ralph Hall (R-TX) switched to the Republican party in January of 2004, and Rep. Jim Turner (D-TX), the ranking Democrat on the House Homeland Security Committee, did not run for re-election.

However, Rep. Chet Edwards (D-TX) narrowly held off Republican challenger Arlene Wohlgemuth in the new 17th District.

FCC Announces Agenda for November 9 Meeting

11/2. The Federal Communications Commission (FCC) announced the agenda [PDF] for its meeting on Tuesday, November 9, 2004. The agenda includes Vonage's voice over internet protocol (VOIP) related petition for a declaratory ruling.

The FCC will consider Memorandum Opinion and Order regarding Vonage's Petition for Declaratory Ruling regarding its DigitalVoice service in the state of Minnesota. This is WC Docket No. 03-211.

Vonage seeks a ruling that its service is an "information service" and that federal policy preempts state action in this area. Vonage filed its petition on September 22, 2003. See, part 1, part 2, part 3, part 4, part 5, and part 6 [slow downloading PDF scans].

Vonage is also litigating this issue. On October 16, 2003, the U.S. District Court (DMinn) issued its Memorandum and Order [PDF] in Vonage v. Minnesota Public Utilities Commission, holding that Vonage is an information service provider, and that the MPUC cannot apply state laws that regulate telecommunications carriers to Vonage. The Court wrote that "State regulation would effectively decimate Congress's mandate that the Internet remain unfettered by regulation." See, story titled "District Court Holds that Vonage's VOIP is an Information Service" in TLJ Daily E-Mail Alert No. 760, October 17, 2003.

Michelle Carey, the Division Chief of the Wireline Competition Bureau's (WCB) Competition Policy Division, stated at an FCC event on September 29 that "this year" the WCB may "come up with an order on jurisdiction". See, story titled "FCC Officials Discuss VOIP Regulation" in TLJ Daily E-Mail Alert No. 988, October 1, 2004.

The FCC will also consider a Memorandum Opinion and Order regarding changes to its rules applicable to the 4.940-4.990 GHz Band. The FCC adopted (on April 23, 2003), and released (on May 2, 2003), a Memorandum Opinion and Order and Third Report and Order [50 pages in PDF] (FCC 03-99) establishing licensing and service rules for 4.940-4.990 GHz band.

The FCC issued a release [PDF] in 2003 in which it stated that the adopted rules "are intended to promote spectrum access for a variety of new broadband applications such as high-speed digital technologies and wireless local area networks for incident scene management, dispatch operations and vehicular operations. This action also promotes interoperability by providing a regulatory framework in which traditional public safety entities can pursue strategic partnerships with both traditional public safety entities, such as the Federal Government, and non-traditional public safety entities, such as utilities and commercial entities, in support of their missions regarding homeland security and protection of life and property."

This proceeding is titled "In the Matter of The 4.9 GHz Band Transferred from Federal Government Use" and numbered WT Docket No. 00-32.

The FCC will also consider a Report and Order regarding modifications to and extension of its Form 477 local competition and broadband data gathering program. This is WC Docket No. 04-141.

Finally, representatives of the FCC's International Bureau will present a report on the International Telecommunications Union's (ITU) World Telecommunication Standardization Assembly (WTSA), held on October 5, 2004.

The meeting will be at 9:30 AM on November 9 at the FCC in the Commission Meeting Room (TW-C305), 445 12th Street, SW. The meeting will be webcast by the FCC.

Supreme Court Denies Cert in Challenge to USPTO Ad Campaign

11/1. The Supreme Court denied certiorari in Invention Submission Corporation v. Dudas, a case involving the U.S. Patent and Trademark Office (USPTO). See Order List [14 pages in PDF] at page 3.

This Order lets stand an opinion [13 pages in PDF] of the U.S. Court of Appeals (4thCir) that held that an agency advertising campaign that is facially neutral, and does not identify any party, is not a final agency action.

Invention Submission Corporation (ISC) filed a complaint in U.S. District Court (EDVa) against James Rogan, who was then the Director of the USPTO; Jonathan Dudas is the current Director. The complaint alleged violation of the Administrative Procedure Act (APA). ISC alleged that the USPTO's advertising campaign in 2002 to alert the public about invention promotion scams was aimed at ISC and harmed ISC. ISC alleged that this ad campaign was an illegal final agency action that was arbitrary and capricious, and that exceeded the statutory authority of the USPTO.

The District Court dismissed the complaint, pursuant to Rule 12(b)(6), for failure to state a claim upon which relief can be granted. ISC appealed. The Court of Appeals vacated and remanded with instructions that the District Court dismiss pursuant to Rule 12(b)(1), for lack of subject matter jurisdiction, on the grounds that the ad campaign was not a final agency action. See, story titled "4th Circuit Rules USPTO Ad Campaign Was Not A Reviewable Final Agency Action" in TLJ Daily E-Mail Alert No. 839, February 18, 2004.

This case is Invention Submission Corporation v. Jonathan Dudas, Sup. Ct. No. 04-40, a petition for writ of certiorari to the U.S. Court of Appeals for the 4th Circuit. The Court of Appeals case is Invention Submission Corporation v. James Rogan, App. Ct. No. 02-2461, an appeal from the U.S. District Court for the Eastern District of Virginia, D.C. No. CA-02-1038-A, Judge Leonie Brinkema presiding. Judge Niemeyer wrote the opinion of the Court of Appeals, in which Judges Shedd and Wilkins joined.

More Supreme Court News

11/1. The Supreme Court issued an order in the consolidated cases involving Constitutional challenges to state restraints on the direct sale of alcoholic beverages, including internet wine sales. The Court ordered that "The motion to reorder presentation of oral argument and for divided argument is granted." See, Order List [14 pages in PDF] at page 2. The consolidated cases are Granholm v. Heald, No. 03-1116, Michigan Beer & Wine Wholesalers v. Heald, No. 03-1120, and Swedenburg v. Kelly, No. 03-1274. Oral argument is scheduled for Tuesday, December 7, 2004 at 10:00 AM. See, schedule [PDF].

11/1. The Supreme Court announced that "The Court will take a recess from Monday, November 15, 2004, until Monday, November 29, 2004." See, Order List [14 pages in PDF] at page14.

1st Circuit Rules in Contract Case Involving Effect of E-Mail Messages

11/1. The U.S. Court of Appeals (1stCir) issued its opinion in Roger Edwards v. Fiddes & Sons. This is a contract case involving the effect of e-mail messages, that was heard in federal court under diversity jurisdiction. The Court of Appeals affirmed the District Court.

Roger Edwards, LLC filed a complaint against Fiddes & Sons alleging breach of contract. The District Court granted partial summary judgment to Fiddes & Sons. This judgment was based upon a finding that Roger Edwards terminated the contract by sending Fiddes & Sons an e-mail message that included the statement, "[I]t is over ... [W]e are done".

Roger Edwards argued that this e-mail could be interpreted in different ways, and that it was merely venting frustration. The Appeals Court affirmed. E-mail messages have legal consequences.

This case is Roger Edwards, LLC v. Fiddes & Sons, Ltd., U.S. Court of Appeals for the First Circuit, App. Ct. Nos. 03-2096 and 03-2195, appeals from the U.S. District Court for the District of Maine.

People and Appointments

11/1. Loyd Ivey was elected Chair of the Consumer Electronics Association's (CEA) Executive Board. He is the Ch/CEO of Mitek Corporation. Patrick Lavelle was elected Vice Chair of the CEA's Executive Board. He is the P/CEO of Audiovox Electronics Corporation. John Flanner was elected to the CEA's Executive Board. He is the President of Flanner's Audio & Video, a Wisconsin based retailer. See, CEA release.

More News

11/1. The Information & Privacy Commissioner for British Columbia released a report [151 pages in PDF] titled "Privacy and the USA Patriot Act: Implications for British Columbia Public Sector Outsourcing". British Columbia is a province of the nation of Canada.

Go to News from October 26-31, 2004.