Top Stories from 2005
8th Circuit Rules in North Kansas City
Municipal Broadband Case
12/29. The U.S. Court of Appeals (8thCir) issued its opinion [6 pages in PDF] in Time Warner Cable v. City of North Kansas City, a dispute between a municipality and a private sector service provider over municipal provision of broadband services. The municipality won this round.
NTIA Releases Estimates of 1710-1755 MHz
Band Relocation Costs
12/28. The National Telecommunications and Information Administration (NTIA) released spreadsheets [PDF] that contain its estimates of the costs of relocating incumbent federal users out of the 1710-1755 MHz spectrum band. The NTIA estimates that the total cost will be $935,940,312. It stated in a release [PDF] that the cost estimates for the 1710-1755 MHz band "are far less than previous wireless industry estimates". This band, and the 2110-2155 MHz band, have been reallocated for use by wireless services that have variously been described as third generation (3G), advanced, and broadband.
Bush, Gonzales & Hayden Discuss
Presidential Intercepts and PATRIOT Act
12/19. President Bush held a news conference at the White House at which he discussed and promoted the National Security Agency's (NSA) communications intercept program, that is authorized by President Bush rather than any court. See, transcript. Also, AG Alberto Gonzales and General Michael Hayden held held a separate news conference on December 19. See, transcript. Bush called the leak of the existence of the program a "shameful act" that harms national security. Gonzales said that the program had been the government's "most classified" program. General Hayden added that "This program has been successful in detecting and preventing attacks inside the United States."
Cloture Motion on PATRIOT Act Extension Bill
Defeated in Senate
12/16. The Senate rejected a motion to invoke cloture on the conference report on HR 3199, the "USA PATRIOT Improvement and Reauthorization Act of 2005", by a vote of 52-47. Invoking cloture is the only method for terminating a filibuster. Pursuant to Senate Rule XXII, a cloture motion requires a three fifths majority for passage. See, Senate memorandum titled "Filibusters and Cloture in the Senate". It was an almost straight party line vote. Republicans voted 50-4. Democrats voted 2-44. See, Roll Call No. 358.
Senate Commerce Committee Holds Hearing on
Nominations of Tate and Copps
12/13. The Senate Commerce Committee (SCC) held a hearing on the nominations of Deborah Tate and Michael Copps to be members of the Federal Communications Commission (FCC). Copps is a current member who has been nominated for another term. Tate is a member of the Tennessee Regulatory Authority. No member of the SCC expressed opposition or criticism of either nominee. Sen. Ted Stevens (R-AK), the Chairman of the SCC, stated at the conclusion that he hoped to have both nominees confirmed by the Senate this year.
7th Circuit Holds Downloading Copyrighted
Music with P2P Software is Not Fair Use
12/9. The U.S. Court of Appeals (7thCir) issued its opinion [9 pages in PDF] in BMG Music v. Gonzalez, a copyright infringement case brought by BMG against an individual who downloaded music with the Grokster peer to peer (P2P) software. The Court of Appeals affirmed the District Court's summary judgment for BMG.
DC Circuit Holds GLB Privacy Provisions Do
Not Apply to Lawyers
12/6. The U.S. Court of Appeals (DCCir) issued its opinion [34 pages in PDF] in ABA v. FTC, holding that the Federal Trade Commission (FTC) exceeded its statutory authority when it asserted that the privacy provisions of the Gramm Leach Bliley Act (GLBA) extend to lawyers and law firms.
SEC Proposes to Allow Internet Delivery of
11/29. The Securities and Exchange Commission (SEC) adopted a staff recommendation to publish a notice in the Federal Register that proposes to amend the SEC's rules to allow companies to use the internet to satisfy proxy material delivery requirements.
Supreme Court to Consider Availability of
Injunctive Relief in Patent Cases
11/28. The Supreme Court granted certiorari in eBay v. Mercexchange, a patent infringement case against eBay involving the fixed-price purchasing feature of eBay's website. The main issue is the standard to be followed by courts in granting injunctions against infringement.
EU Commissioner Advocates EU Wide Copyright
and Censorship Regimes
11/23. Viviane Reding, the EU Commissioner for Information Society and Media, gave a speech [6 pages in PDF] in Montpellier, France titled "Why Broadband Needs Content". She identified several such regulatory barriers. She advocated single European copyright regime. She advocated a single European content censorship regime that would apply to broadcast television, and all other audiovisual content services. She also spoke in vague terms about digital rights management (DRM).
Texas Sues Sony BMG Alleging Violation of
Texas Spyware Statute
11/21. The state of Texas file a complaint [8 pages in PDF] in state court in Texas against Sony BMG Music Entertainment alleging violation of its state statute titled "Consumer Protection Against Computer Spyware Act", or CPACSA. The complaint alleges that Sony has sold audio CDs with software, some of which is related to content protection, which software also degrades the consumers' PC performance, and exposes the PC to certain virus threats, without disclosure to consumers.
Reps. Terry and Boucher Propose New
11/17. Rep. Lee Terry (R-NE) and Rep. Rick Boucher (D-VA) released a discussion draft [31 pages in PDF] of a bill to be titled the "Universal Service Reform Act of 2005". The bill would impose new taxes on a range of internet services for the purpose of subsidizing the Federal Communications Commission's (FCC) Universal Service Fund (USF) programs, including funding of rural telecommunications carriers, and funding of the scandal ridden schools and libraries program.
House Commerce Subcommittee Holds Hearing on
11/16. The House Commerce Committee's (HCC) Subcommittee on Commerce, Trade, and Consumer Protection held a hearing titled "Fair Use: Its Effects on Consumers and Industry".
AG Gonzales Proposes Intellectual Property
11/10. Attorney General Alberto Gonzales gave a speech at a U.S. Chamber of Commerce event in which he discussed intellectual property, and proposed new legislation to offer greater civil and criminal protections for some intellectual property rights holders. See, draft [17 pages in PDF] the "Intellectual Property Protection Act of 2005".
Supreme Court Denies Certiorari in Software
11/7. The Supreme Court denied certiorari in Krause v. Titleserv, a software copyright case involving interpretation of 17 U.S.C. § 117(a)(1), which provides a defense to copyright infringement where the owner of a copy of a program modifies that program as an "essential step in the utilization of the computer program". The denial of certiorari lets stands the 2nd Circuit's tortured construction of the statute to permit modifications that "improve" the program. See, Order List [9 pages in PDF] at page 3.
Analysis of the Vote on HR 1606
11/3.The roll call vote defeating HR 1606, the "Online Freedom of Speech Act", on November 2, 2005, revealed several patterns. First, it was a party line vote. Second, there was a regional trend. Most of the opposition came from Democrats and Republicans in New England, the northern industrial states, and the midwest. Third, there was a urban rural split. Representatives from rural and sparsely populated areas were more likely to support the bill than urban representatives.
Senate Commerce Committee Approves VOIP 911
11/2. The Senate Commerce Committee (SCC) amended and approved S 1063, the "IP-Enabled Voice Communications and Public Safety Act of 2005". See, bill as reported.
IRS Announces It Will Violate Court
Ruling Regarding Excise Tax on Phone Service
10/26. The Internal Revenue Service (IRS) announced in a notice [PDF] that it will violate the holding of the U.S. Court of Appeals (11thCir) announced in its May 10, 2005 opinion [22 pages in PDF] in American Bankers Insurance Group v. US.
Google, Publishers and Authors Debate
Google's Print for Libraries Program
10/24. The Copyright Society of the USA and the DC Bar Association's Patent Copyright and Trademark Section hosted a luncheon panel discussion titled "Google Print for Libraries: Fair or Foul?".
Senate Commerce Committee Approves
10/20. The Senate Commerce Committee (SCC) amended and approved the "Digital Transition and Public Safety Act of 2005". The final vote was 19-3. See, SCC release. Also, the House Commerce Committee announced that it will mark up its version of a DTV transition bill during the week of October 24. See, HCC notice.
Major Book Publishers Sue Google for
Digitizing Copyrighted Books
10/19. Five book publishing companies filed a complaint [35 pages in PDF] in U.S. District Court (SDNY) against Google alleging that its Google Print Library Project infringes copyrights.
DOJ Charges Samsung with DRAM Price
10/13. The Department of Justice (DOJ) charged Samsung by criminal Information filed in the U.S. District Court (NDCal) with fixing the prices of dynamic random access memory (DRAM) sold to original equipment manufacturers (OEMs), in violation of Section 1 of the Sherman Act, which is codified at 15 U.S.C. § 1. The DOJ also announced that Samsung agreed to plead guilty and pay a $300 Million fine. See, DOJ release.
Verizon Seeks Reversal in Texaco v.
10/11. The Supreme Court issued an order in Texaco v. Dagher that grants leave to file several amicus curiae briefs. The amici covered by this order are Verizon, American Bankers Association, Northwest Ohio Physician Specialist Cooperative, Parker Hannifin Corporation, Visa USA, American Petroleum Institute, and Washington Legal Foundation. Verizon argues in its brief that the Court of Appeals decision under review threatens lawful and beneficial joint ventures in the telecommunications industry.
Supreme Court Requests Brief From Solicitor
General in Patent Obviousness Case
10/3. The Supreme Court invited the Office of the Solicitor General to file a brief in the case KSR International v. Teleflex, a patent case involving the issue of obviousness. The Court has not yet granted certiorari, but this request suggests that it might.
2nd Circuit Vacates in Twombly v. Bell
10/3. The U.S. Court of Appeals (2ndCir) issued its opinion [43 pages in PDF] in Twombly v. Bell Atlantic, an class action antitrust suit against the regional bell operating companies (RBOCs) alleging conspiracy to exclude competitors from, and not to compete against one another in, their respective geographic markets for local telephone and high speed internet services. The District Court dismissed the complaint for failure to state a claim. The Court of Appeals vacated and remanded.
WTO Concludes AJCA Still Violates DSB's FSC/ETI
9/30. A panel of the World Trade Organization (WTO) released its report [34 pages in PDF] that concludes that certain provisions of the American Jobs Creation Act of 2004 (which is also known as the Jobs Act and AJCA) still constitute illegal export subsidies in violation of the US's WTO obligations.
House Subcommittee Holds Hearing on State
Business Activity Taxes
9/27. The House Judiciary Committee's (HJC) Subcommittee on Commercial and Administrative Law held a hearing on HR 1956, the "Business Activity Tax Simplification Act of 2005", or "BATSA".
House Committee Holds Hearing on Regulation
of Internet Speech
9/22. The House Administration Committee held a hearing titled "Political Speech on the Internet: Should it be Regulated?". Opponents of government regulation of Constitutionally protected free speech, including former Federal Election Commission (FEC) Commissioner Brad Smith, warned the Committee about the FEC's open rulemaking proceeding regarding regulation of speech under the rubric of the Federal Election Campaign Act (FECA), as amended by the Bipartisan Campaign Reform Act of 2002 (BCRA). Others advocated the necessity of such regulation.
2nd Circuit Stays District Court Injunction
in National Security Letter Case
9/20. The U.S. Court of Appeals (2ndCir) heard oral argument on the Department of Justice's (DOJ) Emergency Motion for Stay Pending Expedited Appeal in Doe v. Gonzales, a case pertaining to National Security Letter authority under 18 U.S.C. § 2709. The Court of Appeals granted a stay of the District Court's ruling of September 9 which enjoined the gag provisions of § 2709.
House Commerce Committee Releases Draft of
Bill to Regulate Internet Protocol Services
9/15. The House Commerce Committee (HCC) released a discussion draft [77 pages in PDF] on September 15, 2005, of a bill that is as yet unnumbered and untitled. It creates three new regulatory regimes -- for broadband internet transmission services, voice over internet protocol (VOIP) services, and broadband video services. The HCC also released a summary [7 pages in PDF] and a short release.
2nd Circuit Holds Foreign Governments Cannot
Use RICO to Collect Taxes in US Courts
9/13. The U.S. Court of Appeals (2ndCir) issued its opinion [12 pages in PDF] in European Community v. RJR Nabisco, holding that foreign governments cannot bring civil suits in US Courts against tobacco companies under the Racketeer Influenced and Corrupt Organizations Act (RICO) to recover lost tax revenues and law enforcement costs due to alleged smuggling. This is a technology related opinion that will benefit international e-commerce.
DOJ Sues National Association of Realtors
for Obstructing Internet Based Brokers
9/8. The Department of Justice's (DOJ) Antitrust Division filed a civil complaint in U.S. District Court (NDIll) against the National Association of Realtors (NAR) alleging violation of federal antitrust laws in connection with its obstruction of real estate brokers who use internet tools to offer services to consumers.
William Rehnquist's Legacy in Technology
9/6. Rehnquist, as Chief Justice since 1986, has had the opportunity to assign the task of writing the opinion of the Court in those cases in which he is in the majority. He has rarely assigned technology related opinions to himself. And when he has dissented, he has rarely written an opinion. Hence, his record in technology related cases has largely been that of joining in the opinions written by others. There are, however, a few leading cases in which he wrote notable opinions. In Bartnicki v. Vopper (2001) he wrote a dissent in which he advocated privacy in electronic communications. In US v. American Library Association (2003) he wrote the opinion of the Court upholding the Children's Internet Protection Act, which requires libraries receiving federal funds to use filtering technology. In Seminole Tribe v. Florida and Florida Prepaid he wrote that the Congress cannot abrogate state sovereign immunity, including in suits for infringement of intellectual property rights.
Australian Court Finds Sharman Infringed
9/5. The Federal Court of Australia issued its judgment in Universal Music Australia v Sharman License Holdings, holding that the distribution of Kazaa file sharing system by Sharman and others violates Australia copyright law.
FCC Delays Its VOIP Customer Lockout
Mandate for 30 Days
8/26. The Federal Communications Commission (FCC) released an order [4 pages in PDF] that extends for thirty days (from August 30 to September 28) the FCC mandated deadline for interconnected voice over internet protocol (VOIP) service providers to lock out certain of their customers. This order does not cover all service providers. It also imposes new reporting mandates.
Suit Challenges Constitutionality of
National Security Letters
8/24. A plaintiff filed a complaint [18 page PDF scan] in U.S. District Court (DConn) against Attorney General Alberto Gonzales and others seeking a declaratory judgment that 18 U.S.C. § 2709 violates the First, Fourth and Fifth Amendments of the US Constitution, and an injunction barring the FBI from enforcing a National Security Letter.
FCC Delays Proceeding on State Regulation of
Airport WiFi Hotspots
8/24. The Federal Communications Commission (FCC) Office of Engineering and Technology (OET) released an order [2 pages in PDF] in its proceeding on the state of Massachusetts' attempt to regulate WiFi hotspots at the Boston Logan Airport. The order grants the state a one month delay.
4th Circuit Rules for Jerry Falwell's Cyber
8/24. The U.S. Court of Appeals (4thCir) issued its opinion [20 pages in PDF] in Lamparello v. Falwell, a cyber squatting case in which the Court of Appeals reversed the District Court's injunction against the cyber squatter.
Bush Names McCallum Acting Deputy Attorney
8/16. President Bush announced his intent to designate Robert McCallum to be acting Deputy Attorney General (DAG) at the Department of Justice. The DAG is the number two position at the DOJ. McCallum is currently the Associate Attorney General, which position oversees many of the civil units of the DOJ, including six key divisions: Civil, Antitrust, Tax, Environment and Natural Resources, and Civil Rights. The designation comes now because of the departure of James Comey. President Bush nominated Timothy Flanagan to be the new DAG back in May, but the Senate has not confirmed him.
1st Circuit Issues En Banc Opinion in
8/11. The U.S. Court of Appeals (1stCir) issued its divided en banc opinion in US v. Councilman, a landmark case involving the Wiretap Act, the Stored Communications Act, and unauthorized accessing of e-mail communications. The significance of this case lies not in whether Councilman goes to jail. Rather, it goes to the law that protects the privacy of e-mail communications, not only from invasions by service providers, but also from law enforcement authorities (LEAs).
US v. Councilman and VOIP
8/11. The facts of U.S. v. Councilman involve the accessing of e-mail communications by service providers. The briefing addresses e-mail. The Court's opinions address e-mail. However, there is also the related issue of accessing voice over internet protocol (VOIP) communications.
FCC Adopts a Policy Statement Regarding
8/5. The Federal Communications Commission (FCC) adopted, but did not release, an item titled "Policy Statement". It relates to guaranteeing for consumers the freedom to use their internet connections to access any content, use any applications, and attach any devices, that they choose. It also relates to limitations upon these freedoms, imposed by their service providers, or by the government. Finally, it contains language regarding competition in a variety of industry sectors, and hints at the possibility of a broadening of FCC exercise of antitrust authority.
FCC Classifies DSL as Information
8/5. The Federal Communications Commission (FCC) adopted, but did not release, an item titled "Report and Order and Notice of Proposed Rulemaking" that classifies wireline broadband internet access services as information services. This brings these services, including DSL service, out from under the Title II regulatory regime. This determination was sought by the incumbent local exchange carriers (ILECs), such as Verizon and BellSouth, that provide DSL service.
FCC Amends CALEA Statute
8/5. The Federal Communications Commission (FCC) adopted, but did not release, an Order and Further Notice of Proposed Rule Making, that provides that facilities based broadband service providers and interconnected VOIP providers are subject to requirements under the 1994 Communications Assistance for Law Enforcement Act (CALEA).
FCC Seeks Comments of Massachusetts Port
Authority's Attempt to Regulate Airport WiFi Hotspots
7/29. The Federal Communications Commission's (FCC) Office of Engineering and Technology (OET) issued a Public Notice [PDF] requesting comments on Continental Airlines' Petition for a Declaratory Ruling [16 pages in PDF] and supplement [PDF] regarding the Massachusetts Port Authority's (MPA) attempt to regulate and extract revenues from airport WiFi hotspots.
FCC Amends E911 VOIP Order's Subscriber
Notice, Reporting and Cancellation Requirements
7/26. The Federal Communications Commission (FCC) released a document [PDF] in its 911 VOIP proceeding that amends and expands upon the requirements imposed upon the providers of interconnected VOIP services with respect to mandatory notice to their customers, mandatory acquisition of responses from customers, mandatory reporting to the FCC, and mandatory cancellation of service.
House Approves PATRIOT Act Extension Bill
7/21. The House amended and approved HR 3199, the "USA PATRIOT and Terrorism Prevention Reauthorization Act of 2005". This bill permanently extends 14 of the 16 sections of the PATRIOT that are scheduled to sunset at the end this year. It provides for a further 10 year sunset for § 206 (regarding roving wiretaps) and § 215 (regarding access to business records, including library records, under the FISA).
UN Seeks Vast Authority to Regulate
Operation and Use of the Internet
7/18. United Nation's (UN) Working Group on Internet Governance (WGIG) released a report [24 pages in PDF] titled "Report of the Working Group on Internet Governance". This is the UN's long awaited report in which it states its ambitious case for acquiring vast power to regulate various aspects of the operation and use of the internet.
Court of Appeals Denies Petitions for Review
in Northpoint v. FCC
7/15. The U.S. Court of Appeals (DCCir) issued its opinion [PDF] in NorthPoint v. FCC, affirming the Federal Communications Commission's (FCC) rules allowing terrestrial multichannel video distribution and data service (MVDDS) to share the 12.2-12.7 GHz band with direct broadcast satellite (DBS) services, and affirming the FCC's decision to auction MVDDS use of the band. At issue are the FCC's final orders allowing sharing of the 12 GHz band, and providing for the auctioning of this spectrum. Both Northpoint and DBS providers (EchoStar, Directv, SES Americom, and their Satellite Broadcasting and Communications Association) brought petitions for review and appeals.
House Judiciary Committee Marks Up Bill to
Extend Expiring Provisions of PATRIOT Act
7/13. House Judiciary Committee (HJC) amended and approved HR 3199, the "USA PATRIOT and Intelligence Reform Reauthorization Act of 2005" by a vote of 23-14. This bill, as amended, makes permanent fourteen of the sixteen sections of the PATRIOT Act that are scheduled to sunset at the end of this year. It creates a new ten year sunset for § 206 (regarding roving wiretaps) and § 215 (regarding access to business records, including library records, under the FISA). It also makes permanent two provisions of the Intelligence Reform and Terrorism Prevention Act of 2004 (IRTPA) that were scheduled to sunset.
Grokster Case Debated
7/8. The Progress and Freedom Foundation (PFF) hosted a panel discussion on Capitol Hill titled "MGM v. Grokster: What's Next?".
Supreme Court Rules in MGM v. Grokster
6/27. The Supreme Court issued its unanimous opinion [55 pages in PDF] in MGM v. Grokster, reversing the judgment of the U.S. Court of Appeals (9thCir) regarding vicarious copyright infringement by the distributors of peer to peer (P2P) systems. The Supreme Court held that "one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties."
Supreme Court Rules in Brand X Case
6/27. The Supreme Court issued its opinion [59 pages in PDF] in NCTA v. Brand X, upholding the Federal Communications Commission's (FCC) determination that cable broadband internet access service is an information service, and reversing the judgment of the U.S. Court of Appeals (9thCir). The Supreme Court overturned the 2003 opinion [39 pages in PDF] of the 9th Circuit, which vacated the FCC's 2002 Declaratory Ruling (DR) that cable modem service is an information service, and that there is no separate offering as a telecommunications service. The 9th Circuit vacated the FCC's DR, in part, because it determined that as a result of a procedural oddity, it need not apply Chevron deference. The Supreme Court held that Chevron deference applies in this matter, and that under this standard of review, the FCC's DR is a lawful construction of the Communications Act.
Matthew Berry Joins FCC
6/22. Matthew Berry, one of the Department of Justice's (DOJ) leading authorities and advocates on law enforcement surveillance and seizure of electronic communications and records of service providers, will join the Federal Communications Commission (FCC) as acting Deputy General Counsel. Although, he has also held other positions, and worked on other issues, including First Amendment, school choice and vouchers, affirmative action, and others. And, the FCC has not stated what matters he will handle.
Supreme Court Grants Certiorari in Patent
Tying Antitrust Case
6/20. The Supreme Court granted certiorari in Illinois Tool Works v. Independent Ink, a patent tying antitrust case. See, Order List [13 pages in PDF] at page 3.
House Approves Amendment Related to Section
215 of the PATRIOT Act
6/15. The House approved an amendment to HR 2862, the "Science, the Departments of State, Justice, and Commerce, and Related Agencies Appropriations Act for Fiscal Year 2006" that pertains to Section 215 of the USA PATRIOT Act. The vote was 238-187. The vote was largely partisan. Democrats voted 199-1 for the amendment. Republicans voted 38-186. See, Roll Call No. 258.
Sen. McCain Introduces DTV Transition Bill
6/14. Sen. John McCain (R-AZ) and Sen. Joe Lieberman (D-CT) introduced S 1237, the "Spectrum Availability for Emergency-Response and Law-Enforcement to Improve Vital Emergency Services Act". The bill would establish a hard date of December 31, 2008, for the transition in the U.S. from analog to digital television.
House CIIP Subcommittee Holds Hearing on
6/9. The House Judiciary Committee's Subcommittee on Courts the Internet and Intellectual Property (CIIP) held a hearing on HR 2795 [63 pages in PDF], the "Patent Act of 2005". This was the CIIP's third hearing this year on proposed revisions to the Patent Act.
Deputy AG Comey Testifies Before House
Judiciary Committee on PATRIOT Act
6/8. The House Judiciary Committee (HJC) held a hearing titled "Reauthorization of the USA PATRIOT Act". This was another in a long series of hearings held by the HJC, or its Crime Subcommittee. The only witness was James Comey, the Deputy Attorney General. See, prepared testimony [PDF]. He asked that the Congress permanently extend the provisions of the USA PATRIOT Act that are scheduled to expire at the end of this year. He opposed proposals to include any further sunsetting provisions. He asserted that the Congress can conduct effective oversight without the presence of sunsetting provisions.
FCC Releases VOIP E911 Order
6/3. The Federal Communications Commission (FCC) released the text [90 pages in PDF] of its First Report and Order and Notice of Proposed Rulemaking in its proceeding regarding the regulation of internet protocol (IP) enabled services. The order portion of this item extends 911/E911 regulation to interconnected voice over internet protocol (VOIP) service providers.
Rep. Cox to Replace Donaldson as SEC
6/2. William Donaldson, Chairman of the Securities and Exchange Commission (SEC), announced his resignation, effective June 30, 2005. See, June 1 SEC release. On June 2, President Bush announced his intent to nominate Rep. Chris Cox (R-CA) to be the next SEC Chairman. See, White House release.
FCC Reports Continuing Decline in Telephone
5/25. The Federal Communications Commission's (FCC) Wireline Competition Bureau's (WCB) Industry Analysis and Technology Division (IATD) released its latest report [50 pages in PDF] titled "Telephone Subscribership in the United States". In March 2005 the telephone penetration rate in the U.S. was 92.4%. It was 93.5% in November of 2004. This is a drop of over 1% in four months. The penetration rate was 95.5% in March of 2003. The FCC's figure has decreased in each of the last six reports. The report does not explain the cause of this trend. Nor does the FCC staff have an understanding of the cause.
University Publishers Accuse Google of Systematic
Infringement of Copyright on a Massive Scale
5/20. The Association of American University Presses (AAUP), a group that represents 125 non-profit scholarly publishers, wrote a letter [PDF] to Google asserting that its plan to digitize books appears to involve systematic infringement of copyright on a massive scale.
FCC Adopts Order Expanding E911 Regulation
to Include Some VOIP Service Providers
5/19. The Federal Communications Commission (FCC) adopted, but did not release, a First Report and Order and Notice of Proposed Rulemaking in its proceeding titled "In the Matter of IP-Enabled Services" at its event titled "Open Meeting". This item requires "interconnected VOIP service providers" to comply with 911/E911 rules within 120 of publication of this item in the Federal Register.
Supreme Court Rules in Internet Wine Sales
5/16. The Supreme Court issued its 5-4 opinion [73 pages in PDF] in Granholm v. Heald, and consolidated cases, holding that Michigan's and New York's regulatory schemes that permit in-state wineries directly to ship alcohol to consumers, but restrict the ability of out-of-state wineries to do so, violate the dormant commerce clause. While the facts of these cases involve wine sales, this opinion will make it easier for businesses that engage in electronic commerce to challenge the constitutionality of state protectionist statutes that discriminate against internet based commerce.
Rep. Barton Proposes Outlawing Use of SSNs
for Non-Governmental Purposes
5/11. Rep. Joe Barton (R-TX), the Chairman of the House Commerce Committee, stated at a hearing on consumer data security that the Congress should outlaw the use of social security numbers for non-governmental purposes. He spoke during the questioning of witnesses at a hearing of the Subcommittee on Commerce, Trade, and Consumer Protection titled "Securing Consumers' Data: Options Following Security Breaches".
IRS Loses Appeal Over 3% Excise Tax on
5/10. The U.S. Court of Appeals (11thCir) issued its opinion [22 pages in PDF] in AIBG v. US, holding that certain telephone services purchased by the American Bankers Insurance Group (AIBG) from AT&T are not subject to the excise tax on communications.
DC Circuit Reverses FCC's Broadcast Flag
5/6. The U.S.Court of Appeals (DCCir) issued its opinion [34 pages in PDF] in American Library Association v. FCC, overturning the Federal Communications Commission's (FCC) broadcast flag rules.
FCC Denies SBC's Petition for Forebearance
of Common Carrier Regulation of IP Services
5/5. The Federal Communications Commission (FCC) release an Memorandum Opinion and Order [12 pages in PDF] in its proceeding titled "In the Matter of Petition of SBC Communications Inc. for Forbearance from the Application of Title II Common Carrier Regulation to IP Platform Services". This MOO denies the petition on procedural grounds.
USTR Releases 2005 Special 301 Report
4/29. The Office of the U.S. Trade Representative (USTR) released its 2005 Special 301 Report [65 pages in PDF]. See also, Executive Summary [13 pages in PDF]. This report, among other things, elevates the People's Republic of China to the Priority Watch List. It has long been on the USTR's Priority Foreign Country List.
Leahy and Sununu Introduce E-Mail Privacy
4/28. Sen. Patrick Leahy (D-VT) and Sen. John Sununu (R-NH) introduced S 936, the "E-Mail Privacy Act of 2005". This bill is a reaction to the split opinion of the three judge panel of the U.S. Court of Appeals (1stCir) in USA v. Bradford Councilman, a criminal case involving the Electronic Communications Privacy Act (ECPA) and unauthorized accessing of the content of stored e-mail messages. The Court of Appeals held that there was no violation of the Wiretap Act, as amended by the ECPA, when stored e-mail was accessed, because, since it was in storage, there was no interception within the meaning of the statute.
Summary of the Committee Print of the Patent
Act of 2005
4/20. The House Judiciary Committee's Subcommittee on Courts, the Internet, and Intellectual Property held a hearing titled "Oversight Hearing on Committee Print Regarding Patent Quality Improvement". The Subcommittee discussed, and heard testimony on, the Committee Print of HR __ [52 pages in PDF], the "Patent Act of 2005". The Committee Print would, among other things, provide a first inventor to file rule, create a duty of candor, and create an administrative post grant opposition process. It would eliminate the best mode requirement, and make it harder to recover treble damages and obtain injunctive relief. It would also require the publication of almost all patent applications after 18 months.
7th Circuit Affirms Broad Reach of Section
4/18. The U.S. Court of Appeals (7thCir) issued its opinion [9 pages in PDF] in USA v. Mitra, affirming the District Court's conviction of Rajib Mitra on two counts of violating 18 U.S.C. § 1030. This opinion demonstrates that, as computer chips become more ubiquitous in products ranging from police communications equipment, to cell phones and iPods, to automobiles, the scope of malicious conduct that will fall under § 1030 will continue to grow.
7th Circuit Rules Against Deadbeat DA in
ECPA Compensation Case
4/12. The U.S. Court of Appeals (7thCir) issued is second opinion [11 pages in PDF] in Ameritech v. McCann, a case regarding a state District Attorney (DA) who requests and receives information from Ameritech, but refuses to pay, as required by § 2706 of the ECPA. The Court of Appeals held that the DA must pay, instructed the District Court to write a declaratory judgment to that effect, and specified the language to be included.
Business Groups Announce Formation of
Coalition to Advocate Rewrite of Telecom Laws
4/12. Representatives of business groups, and Rep. Joe Barton (R-TX), held a news conference in a House Commerce Committee hearing room to announce the formation of a coalition named TeleConsensus, which advocates updating U.S. telecommunications laws. Rep. Barton, the Chairman of the House Commerce Committee (HCC), stated that the HCC will hold a number of hearings "this Spring and this Summer" to try to develop consensus "on what needs to be done to revamp our telecommunications laws".
WTO Appellate Body Upholds U.S. Laws
Affecting Internet Gambling
4/7. The World Trade Organization's (WTO) Appellate Body issued its report [146 pages in PDF] titled "United States -- Measures Affecting the Cross-Border Supply of Gambling and Betting Services". This report reverses key parts of a previous WTO decision that determined that U.S. laws affecting internet gambling violate the U.S.'s treaty obligations.
Senate Judiciary Committee Holds Hearing
on PATRIOT Act
4/5. The Senate Judiciary Committee held a hearing titled "Oversight of the USA PATRIOT Act". The witnesses were Attorney General Alberto Gonzales and FBI Director Robert Mueller.
USTR Release Report on Anti-Competitive
Regulations in Telecom Sector
3/31. The Office of the U.S. Trade Representative (USTR) released a document [10 pages in PDF] titled "Results of the 2005 Section 1377 Review of Telecommunications Trade Agreements". Peter Allgeier, the acting USTR, stated in a release that "We are deeply concerned by the tepid commitment some of our trade partners have shown to competition in the telecommunications sector. This is especially true in countries such as China, India and Japan where national operators are already competing on a global level, but remain protected at home by relatively closed markets.".
Supreme Court Hears Oral Argument in MGM v.
3/29. The Supreme Court heard oral argument in MGM v. Grokster. Justices were active in asking tough questions of both the peer to peer (P2P) and entertainment industries' counsel.
Texas Sues Vonage Over Marketing of VOIP
3/22. The Attorney General of the State of Texas filed a complaint [14 pages in PDF] in state court in Austin, Texas, against Vonage alleging violation of the Texas Deceptive Trade Practices Act (DTPA) in connection with Vonage's marketing and sale of voice over internet protocol (VOIP) service. The complaint alleges that Vonage has engaged in deceptive marketing of its VOIP service by failing to clearly inform consumers of the difference between its 911 service and "traditional 911 service".
Utah Supreme Court Grants Certiorari to
Decide Whether Sending One E-Mail Can Create Personal Jurisdiction
3/21. The Supreme Court of the State of Utah granted certiorari in Fenn v. MLeads Enterprises, a case regarding whether a state court can exercise personal jurisdiction, in a case brought under a state anti-spam statute, over an out of state defendant, based solely upon the defendant having contracted with an agent who sent one unsolicited e-mail to a person within the state.
Chairman Barton Suggests Ending E-Rate
3/16. The House Commerce Committee's Subcommittee on Subcommittee on Oversight and Investigations held a hearing titled "Problems with the E-rate Program: GAO Review of FCC Management and Oversight". Rep. Joe Barton (R-TX), the Chairman of the full Committee, appeared late in the hearing and questioned whether the program should be discontinued, whether it should be limited to low income schools, and whether its administration should be be transferred away from the Federal Communications Commission (FCC) to another government agency.
Senate Committee Holds Hearing on SBC/ATT
and Verizon/MCI Mergers
3/15. The Senate Judiciary Committee held a hearing on the SBC/ATT and Verizon/MCI mergers. Sen. Specter said that "the question we have to answer is whether there will be sufficient competition for consumer protection." Sen. DeWine said that the competition issue of concern to him is the telecommunications enterprise market. He said that the mergers will result in fewer competitors. He questioned to what extent intermodal competition will protect competition in the enterprise market. The CEOs argued that there is lots of intermodal competition. Sen. Kohl asked the CEOs whether they would agree to certain conditions being imposed upon their mergers. All CEOs declined to agree to any merger conditions proposed by Sen. Kohl.
House Commerce Committee Approves Spyware
3/9. The House Commerce Committee amended and approved HR 29, the "Securely Protect Yourself Against Cyber Trespass Act", or SPY ACT, by unanimous votes. This is Rep. Mary Bono's (R-CA) spyware bill. The Committee approved one amendment [5 pages in PDF], offered by Rep. Cliff Stearns (R-FL), by unanimous voice vote. It then approved the bill, as amended, on a roll call vote of 43-0.
Supreme Court Denies Certiorari in Covad v.
3/7. The Supreme Court denied certiorari in Covad v. BellSouth. See, Order List [14 pages in PDF] at page 7. This is a case with a long history. It involves the Communications Act, the Sherman Antitrust Act, and the Supreme Court's January 13, 2004 opinion [22 pages in PDF] in Verizon v. Trinko. This denial of certiorari lets stand the judgment of the U.S. Court of Appeals (11thCir). The Court of Appeals issued its opinion [18 pages in PDF] on June 25, 2004. It held that most, but not all, of Covad's claims are barred by the holding in the Trinko case.
House CIIP Subcommittee to Take Up Patent
3/3. Rep. Lamar Smith (R-TX) and Rep. Howard Berman (D-CA), the Chairman and ranking Democrat on the House Judiciary Committee's Subcommittee on Courts, the Internet and Intellectual Property (CIIP), spoke with reporters after the CIIP mark up session on Thursday, March 3, 2005. Rep. Smith stated that the CIIP Subcommittee will hold "several hearings in April on patent reform". Rep. Smith also said that he will then introduce a bill on patent reform.
Federal Circuit Vacates in Eolas Patent
3/2. The U.S. Court of Appeals (FedCir) issued its opinion [29 pages in PDF] in Eolas v. Microsoft, vacating in part, and affirming in part, the judgment of the District Court, and remanding. The Court of Appeals held the the District Court "improperly granted judgment as a matter of law (JMOL) in Eolas’ favor on Microsoft's anticipation and obviousness defenses and improperly rejected Microsoft’s inequitable conduct defense, this court vacates the district court's decision and remands for a new trial on these issues." However, the Court of Appeals affirmed the District Court on other issues.
Sen. Specter Holds News Conference
2/24. Sen. Arlen Specter (R-PA), the Chairman of the Senate Judiciary Committee, held a news conference in the Capitol Building on Thursday morning, February 24, 2005, He addressed, and answered questions, on a wide range of issues, including judicial nominations, ChoicePoint, and the security of information in electronic databases.
FCC Orders AT&T to Pay Access Charges and
USF Payments on Some Calling Cards
2/23. The Federal Communications Commission (FCC) released an Order and Notice of Proposed Rulemaking [30 pages in PDF] pertaining to universal service fund (USF) payments, access charges, and prepaid calling cards. It orders AT&T to make USF payments and pay access charges on certain prepaid calling cards. It defers decision on related issues by initiating a rulemaking proceeding. AT&T said that it will seek judicial review. See also, FCC release [PDF].
University and Industry Representatives Urge
More R&D Funding
2/16. A group of industry and research university representatives named the "Task Force on the Future of Innovation" held a news conference in Washington DC to advocate more federal government spending on research and development. They also released a report [PDF] titled "The Knowledge Economy: Is the United States Losing Its Competitive Edge?"
Bush Seeks Extension of Sunsetting
Provisions of the PATRIOT Act
2/14. President George Bush spoke at a swearing in ceremony for the new Attorney General, Alberto Gonzales. He renewed his call for the Congress to permanently extent all section of the USA PATRIOT Act that are scheduled to sunset at the end of 2005.
Rep. Goodlatte Reintroduces Criminal Spyware
2/10. Rep. Bob Goodlatte (R-VA), Rep. Zoe Lofgren (D-CA), and others, introduced HR 744, the "Internet Spyware (I-SPY) Prevention Act of 2005". Rep. Goodlatte (at right), who is a senior member of the House Judiciary Committee, introduced a similar bill in the 108th Congress, HR 4661.
House Subcommittee Holds Hearing on IP
2/9. The House Commerce Committee's Subcommittee on Telecommunications and the Internet held a hearing titled "How Internet Protocol-Enabled Services are Changing the Face of Communications: A View from Technology Companies".
Senate Approves Copyright Bill
2/1. On January 25, Sen. Orrin Hatch (R-UT), Sen. Patrick Leahy (D-VT), Sen. John Cornyn (R-TX), and Sen. Dianne Feintstein (D-CA) introduced S 167, the "Family Entertainment and Copyright Act of 2005", which is also known as the FECA. On February 1, the Senate approved the bill by unanimous consent. The key parts of the bill are the ART Act, which includes a provision criminalizing certain uses of camcorders in movie theaters, and the Family Movie Act, which pertains to ClearPlay type technology. It also contains the Film Preservation Act and the Orphan Works Act.
PFF Announces Digital Age Communications Act
2/1. The Progress and Freedom Foundation (PFF) hosted an event in Washington DC to announce the formation of a project titled the "Digital Age Communications Act", or DACA. Its purpose is to review, issue reports on, and make legislative recommendations regarding, the legislative and regulatory framework affecting the communications and information technology sectors. It plans to issue a series of reports, starting in April, and then release a draft bill in the fall of 2005.
House Commerce Committee Holds Hearing on
1/26. The House Commerce Committee held a hearing titled "Combating Spyware: HR 29, the SPY Act". Witnesses expressed support for, or did not oppose, the bill. No members of the Committee criticized or expressed opposition to the bill. Rep. Joe Barton (R-TX), the Chairman, stated that the full Committee will mark up the bill, probably in a few weeks. Said Barton, "this is on the fast track".
2nd Circuit Holds That ISP Did Not Violate
ECPA When It Acquired E-Mail of Customer With Terminated Account
1/25. The U.S. Court of Appeals (2ndCir) issued its opinion [13 pages in PDF] in Hall v. Earthlink Network, a dispute regarding an e-mail service provider's termination of service. The Appeals Court held that, for the purposes of the ECPA's prohibition of interception of electronic communications, ISPs do not intercept the e-mail messages of their customers, if they are acting within the ordinary course of their businesses. This might seem like an obvious conclusion. However, the language of the 1986 ECPA, if applied literally, suggests a different conclusion. The Court followed legislative intent, and the principle that absurd results are to be avoided, in applying the statute.
2nd Circuit Affirms Dismissal of 10b5
Complaint Against Merrill Lynch for Hyping Internet Stocks
1/20. The U.S. Court of Appeals (2ndCir) issued its opinion [45 pages in PDF] in Lentell v. Merrill Lynch, a consolidated class action case against Merrill Lynch and one of its research analysts alleging securities fraud for issuing falsely optimistic reports recommending that investors purchase stock of two internet companies. The Court of Appeals affirmed the District Court's dismissal for failure to satisfy the pleading requirements of Section 10b5 and the PSLRA. Basically, the Appeals Court held that the complaint failed to plead loss causation.
FBI Reports on Use of Carnivore and Similar
Products in FY 2002 and 2003
1/17. The Electronic Privacy Information Center (EPIC) published in its web site two Federal Bureau of Investigation (FBI) reports to the Congress regarding the FBI's e-mail monitoring program named "Carnivore", and later renamed "DCS 1000". The EPIC obtained these two reports in response to request made pursuant to the Freedom of Information Act (FOIA). The two reports state that the FBI did not use Carnivore during the relevant time periods, Fiscal Year 2002 and Fiscal Year 2003. However, it did use "commercially available software" that constituted "network collection devices on packet networks" to carry out surveillance authorized by 13 court orders.
6th Circuit Rules on Federal Question
Jurisdiction, Copyright Act Preemption, and Complete Preemption Doctrine
1/11. The U.S. Court of Appeals (6thCir) issued its opinion [7 pages in PDF] in Ritchie v. Williams, a case regarding 17 U.S.C. § 301 and the doctrine of complete preemption.
Supreme Court Takes Case Involving Research
Exemption to Patent Infringement
1/7. The Supreme Court granted certiorari in Merck KGaA v. Integra LifeSciences I. See, Order List [2 pages in PDF], at page 1. This is a drug patent case involving a research exemption to patent infringement. However, it is possible that the Supreme Court will issue an opinion that impacts research in other fields and technologies.
Commerce Committee Holds Hearing on
Nomination of Carlos Gutierrez
1/5. The Senate Commerce Committee held a hearing on the nomination of Carlos Gutierrez to be Secretary of Commerce. Senators of both parties praised him, and predicted his rapid confirmation. He encountered no criticism or opposition. Also, there was little discussion of technology or communications related issues.
8th Circuit Holds RIAA Cannot Use
512(h) Subpoenas on ISPs for Info on P2P Infringers
1/4. The U.S. Court of Appeals (8thCir) issued its split opinion [PDF] in RIAA v. Charter Communications, reversing the District Court, and holding that a DMCA Section 512(h) subpoena may not be issued to an ISP that is merely acting as a conduit for the P2P infringement of copyright protected music files.