| FCC Updates Licensing
Records to Reflect Court Mandate In Nextwave Case |
8/31. The FCC announced
that its "Wireless Telecommunications Bureau will update
its licensing records to reflect the court's mandate" in
NextWave v. FCC. The FCC added that "The United States
and the Commission have indicated their intention to ask the
Supreme Court of the United States to review the D.C. Circuit
decision. In addition, related litigation is pending in the
Bankruptcy Court for the Southern District of New York, Case
No. 98 B 21529 (ASH); and there are potential or ongoing
related regulatory proceedings before the Commission. These
litigation and/or regulatory matters may affect the status of
the involved licenses." See, FCC
release.
NextWave Communications
obtained spectrum licenses at FCC auctions in 1996. The FCC
permitted NextWave to obtain the licenses under an installment
plan, thus creating a debtor creditor relationship between
NextWave and the FCC. NextWave did not make payments required
by the plan, and filed a Chapter 11 bankruptcy petition. The
FCC was blocked by the bankruptcy court, citing § 525
of the Bankruptcy Code. The U.S. District Court (SNDY)
affirmed. The U.S.
Court of Appeals (2ndCir) issued its order reversing and
remanding the case on Nov. 24, 1999; it issued its opinion
explaining its reversal in May 2000. The FCC then re-auctioned
this spectrum to Verizon Wireless, VoiceStream and other
successful bidders, which intend to use it for 3G wireless,
and other, services.
However, NextWave petitioned the FCC to reconsider its
cancellation of its licenses. The FCC refused, and NextWave
petitioned for review by the Court of Appeals in the District
of Columbia. The DC Circuit ruled on June 22 that the 2nd
Circuit had not already addressed NextWave's bankruptcy
claims. It also wrote in its opinion
that the FCC is prevented from canceling the spectrum licenses
by § 525 of the Bankruptcy Code. It wrote that the FCC
"violated the provision of the Bankruptcy Code that
prohibits governmental entities from revoking debtors'
licenses solely for failure to pay debts dischargeable in
bankruptcy. The Commission, having chosen to create standard
debt obligations as part of its licensing scheme, is bound by
the usual rules governing the treatment of such obligations in
bankruptcy." See, NextWave Personal Communications Inc.
v. FCC, 254 F.3d 130 (D.C. Cir. 2001). |
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| DOJ Argues Supreme Court
Should Deny Certiorari in Microsoft Case |
8/31. The Department of
Justice (DOJ) filed with the Supreme Court of the United
States its brief
in opposition to Microsoft's petition
for writ of certiorari. Microsoft's petition raises the
sole issue of whether Judge Jackson's improper out of Court
contacts warrant vacating Judge Jackson's finding of fact and
conclusions of law in their entirety.
The DOJ argues in its brief that Microsoft's petition should
be denied for three reasons. First, it argues that this is an
interlocutory appeal in a case that could later generate
another petition for writ of certiorari; the Supreme Court
should not take interlocutory appeals.
Second, the DOJ argues that "Microsoft's assertion that
the court of appeals' decision conflicts with decisions of
this Court and other courts of appeals rests squarely on a
mischaracterization of the court of appeals' ruling, which
simply applies the controlling authority, Liljeberg v. Health
Services Acquisition Corp., 486 U.S. 847 (1988), to the
facts of this case."
Third, the DOJ argues that "the court of appeals'
unanimous en banc decision properly applied Liljeberg,
which specifically recognizes that courts of appeals have
considerable discretion in resolving the factbound question of
the proper remedy for specific instances of judicial
misconduct." |
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| EU Initiates Proceeding
Against Microsoft |
8/30. The European Commission announced that Microsoft
"may have violated European antitrust rules by using
illegal practices to extend its dominant position in the
market for personal computer operating systems into the market
for low-end server operating systems. Low-end server systems
are cheaper servers usually used as file and print servers as
well as Web servers. In a Statement of Objections, the
Commission also alleges that Microsoft is illegally tying its
Media Player product with its dominant Windows operating
system. This Statement of Objections supplements one sent to
the company a year ago and adds a new dimension to the
Commission's concerns that Microsoft's actions may harm
innovation and restrict choice for consumers. A Statement of
Objections is a formal step in European antitrust proceedings,
which does not prejudge the final outcome." See, EU
release.
Microsoft issued a release
in which it asserted that the EU's latest action is "a
constructive step in the ongoing dialogue on these
issues." Microsoft also stated that it "confirmed
today in discussions with European Commission staff that the
Commission has no plans to seek to block the launch of Windows
XP or any other Microsoft product in Europe."
Jean Philippe Courtois, President of Microsoft EMEA, stated in
the same release that "We are confident that once it has
completed its investigation, the European Commission will be
assured that we run our business in full compliance with EU
law".
Ken Wasch, President of the SIIA,
an anti Microsoft group based in Washington DC, stated that
"The filing of this case confirms that Microsoft's anti-
competitive practices are not confined to the desktop. Rather
than replaying the debate about the desktop, applications and
the browser, the Commission has appropriately focused on the
new challenges resulting from Microsoft's leveraging its
monopoly on the PC." See, SIIA
release. |
|
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| Franchising for Profit |
8/30. The U.S.
Court of Appeals (5thCir) issued its opinion
in USA
v. Williams, affirming a conviction of a city
councilman, who as a member of a local franchising authority,
sought a cash bribe for voting for a renewal of a cable TV
franchise.
The Defendant, Robert Williams, was a City Councilman for the
City of Jackson, Mississippi. Time Warner sought a renewal of
its cable TV franchise. Williams sought $150,000 in cash from
Time Warner for his vote. He was convicted of conspiracy to
commit extortion and solicitation of bribery payments. The
Court of Appeals affirmed. |
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|
| Bush Addresses Deployment
of Broadband Internet Access |
8/31. President Bush stated at a press conference that
broadband deployment is resulting from market activity, and
that broadband access in rural areas will come from "over
the air" rather than wireline service.
President and Mrs. Bush held a press conference to announce
revisions to the White House web site at which President Bush
was asked, "what role should the federal government play
in helping deploy high speed Internet access?" He
responded, "Well, a lot of that is going to be taking
place through the market. And technology is such that areas
that might not get access quickly as a result of no economies
of purchase, or economies of scale, will be able to have
Internet access. I think, for example, of Crawford, Texas.
It's a place where you're not going to generally get a lot of
fiber-optics, although I think there may be some there as a
result of Laura's and my presence. Hopefully that high speed
access will come as a result of -- over the air, as opposed to
through fiber-optics. And once we get over the air high speed
access, then a lot of rural America that heretofore hasn't had
access will get it. The technologies are evolving. One of my
concerns, of course, is the economic slowdown will perhaps
slow down some of the progress made, as far as high speed
access. And we've done something about it. I'm going to remind
Congress that they need not overspend, and should not
overspend. It's going to affect economic growth; that all of
us in Washington need to be thinking about how to grow the
economy. ..." See, transcript. |
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| CDT Releases Privacy Report |
8/30. The Center for Democracy
and Technology (CDT) released a report
[7 MB in PDF] regarding the privacy practices of online
financial services providers. The CDT report states that out
of 100 banks studied that offer their customers the ability to
open accounts online and use other banking services online,
only 22% provide their customers equally convenient online
means of preventing information sharing with other companies.
The CDT also submitted a complaint
to the Federal Trade Commission
(FTC) in which it stated that five mortgage companies (Advantage
Mortgage, Ameriwest Mortgage, Central
New England Mortgage, GM Mortgage, and Online
Mortgage Corporation) are in violation of FTC regulations
promulgated pursuant to the Gramm Leach Bliley Act. The
complaint states that these companies collect personally
identifiable financial information on their web sites in
connection with granting mortgages to consumers, but do also
offer clear and conspicuous notice of their privacy policies.
The complaint also requests that the FTC initiate an
investigation of the privacy practices of the five companies. |
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|
| HP to Purchase Compaq |
| 9/3. Hewlett Packard and Compaq Computer announced a
definitive merger agreement. Carly Fiorina, currently C/CEO of
HP, will continue as C/CEO of the merged entity. Michael
Capellas, C/CEO of Compaq, will be President. HP stated in a release
that "Under the terms of the agreement, unanimously
approved by both Boards of Directors, Compaq shareowners will
receive 0.6325 of a newly issued HP share for each share of
Compaq, giving the merger a current value of approximately $25
billion. HP shareowners will own approximately 64% and Compaq
shareowners 36% of the merged company. The transaction, which
is expected to be tax-free to shareowners of both companies
for U.S. federal income tax purposes, will be accounted for as
a purchase." The transaction is subject to regulatory and
shareholder approvals. See also, Compaq
release. |
|
|
| WIPO Releases Second Report
on Rights in Domain Names |
9/3. The WIPO
released its report
(and executive
summary) titled "The Recognition of Rights and the
Uses of Names in the Internet Domain Name System: Report of
the Second WIPO Internet Domain Name Process." The first
WIPO report on the domain name process addressed trademarks
and domain names. It recommended the establishment of the
existing dispute resolution procedure to deal with disputes
concerning the bad faith registration and use of trademarks as
domain names. This second report addresses International
Nonproprietary Names (INNs) for pharmaceutical substances,
names and acronyms of international intergovernmental
organizations (IGOs), personal names, geographical
identifiers, and trade names which are the names used by
enterprises to identify themselves.
INNs. The report recommended that "a simple
mechanism be established which would protect INNs against
identical domain name registrations."
IGOs. The report recommended that "States, as the
constituents of IGOs, should work towards the establishment of
an administrative dispute- resolution procedure, akin to the UDRP,
where an IGO could bring a complaint that a domain name was
the same or confusingly similar to the name or acronym of the
IGO, that it has been registered without legal justification
and that it is likely to create a misleading association
between the holder of the domain name registration and the IGO
in question."
Personal Names. The report concluded that "it was
found that there are no existing international norms dealing
with their protection and that national legal systems provide
for a wide diversity of legal approaches to their protection
... it is suggested that the international community needs to
decide whether it wishes to work towards some means of
protection of personal names against their abusive
registration as domain names."
Geographical Identifiers. The report states that there
is "considerable evidence of the widespread registration
of the names of countries, places within countries and
indigenous peoples as domain names by persons unassociated
with the countries, places or peoples. However, these areas
are not covered by existing international laws and a decision
needs to be taken as to whether such laws ought to be
developed."
Trade Names. The report recommended that no action be
taken to protect trade names. |
|
|
| Copyright Infringement |
| 8/30. The U.S.
Court of Appeals (6thCir) issued its opinion
in Murray
Hill Publications v. ABC, a case involving
claims of copyright infringement, violation of the Lanham Act,
and other claims. The Appeals Court affirmed the District
Court's grant of summary judgment to defendant, ABC (dba WJR
Radio). |
|
|
|
| Copyright Office Releases
DMCA Report |
| 8/30. The Copyright
Office (CO) released its report
on the effects of Title 1 of the Digital Millennium Copyright
Act (DMCA) and the development of electronic commerce and
associated technology on the operation of §§ 109 and 117 of
Title 17. The report also evaluates the relationship between
existing and emerging technology and the operation of those
sections. The report was required by § 104 of the DMCA. |
|
|
| People and Appointments |
9/4. Robert Mueller begins as Director of the FBI.
8/31. Scott Marcus was named Senior Advisor for
Internet Technology at the FCC. He was previously CTO of Genuity. The FCC stated in
a release
[PDF] that his "research interests include the economics
and public policy implications of internet backbone
interconnection, the measurement and prediction of Internet
usage, the management and operation of data networks, and
general data network design." He is also the author of Designing
Wide Area Networks and Internetworks: A Practical Guide
(Amazon sales rank: 60,573). See also, Genuity
bio.
8/31. President Bush announced his intent to nominate Rockwell
Schnabel to be Representative of the U.S. to the European Union.
He is currently Co-Chairman of Trident Capital, a
private equity venture capital firm that focuses on
information services companies. It is based in Los Angeles,
California. See, White
House release. |
|
|
| Tuesday, September 4 |
The Senate returns from its August recess. It is scheduled
to begin several days of debate on S
149, the Export Administration Act of 2001.
12:30 PM. Rod Paige, Secretary of Education, will speak
at a National Press Club
luncheon. Location: 529 14th St. NW, 13th Floor, Washington
DC. |
|
|
| Wednesday, September 5 |
The House returns from its August recess.
3:30 PM. The Senate Intelligence Committee will hold a hearing
to examine the FY 2002 Intelligence Authorization Bill,
focusing on information leak provisions. Location: Room 216,
Hart Building.
Deadline to file reply comments with the FCC in its
Notice of Inquiry (NOI) regarding video competition. On June
20, 2001 the FCC adopted a NOI into the status of competition
in the market for the delivery of video programming. The FCC
stated in a release
that "The NOI seeks information that will allow the FCC
to evaluate the status of competition in the video
marketplace, prospects for new entrants to that market, and
its effect on the cable television industry and consumers. The
NOI also solicits information regarding the extent to which
consumers have choices among video programming distributors
and delivery technologies." See, CS Docket No. 01-129. |
|
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| Thursday, September 6 |
9:30 AM. The U.S.
Court of Appeals for the District of Columbia Circuit will
hear oral argument in Verizon v. FCC, No. 00-1207.
Judges Ginsburg, Edwards and Sentelle will preside. Location:
333 Constitution Ave., NW, Washington DC.
9:30 AM. The U.S.
Court of Appeals for the District of Columbia Circuit will
hear oral argument in National Association of Broadcasters
v. FCC, No. 00-1054. Judges Henderson, Rogers and Tatel
will preside. Location: 333 Constitution Ave., NW, Washington
DC.
10:00 AM. The Senate
Judiciary Committee will hold an executive business
meeting. Location: Room 226, Dirksen Building. |
|
|
| USPTO Rules |
8/30. The USPTO
published a notice
in the Federal Register that it is temporarily amending its
rules regarding the timing of national stage commencement in
the U.S. for Patent Cooperation Treaty (PCT) applications. It
is amending its regulations to include the current statutory
provisions that define when national stage commencement occurs
in an application filed under the PCT. See, Federal Register,
August 30, 2001, Vol. 66, No. 169, at Pages 45775 - 45777.
8/30. The USPTO
published a notice
in the Federal Register regarding its notice of proposed
rulemaking (NPRM) proposing to amend its rules to make
electronic filing of trademark documents mandatory, subject to
certain exceptions. Comments must be received by October 29,
2001. A public hearing will be held at 10:00 AM on October 12,
2001, in Room 911, Crystal Park 2, 2121 Crystal Drive,
Arlington, Virginia. Requests to present oral testimony are
due by October 5, 2001. See, Federal Register, August 30,
2001, Vol. 66, No. 169, at Pages 45792 - 45797. |
|
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| Indictment Returned for
Violation of Export Rules |
8/31. A grand jury of the U.S.
District Court (NDCal) returned an indictment
[PDF] of Berkeley
Nucleonics Corporation (BNC) and three of its employees,
David Brown, Richard Hamilton, and Vincent Delfino, alleging
violation of 18 U.S.C. § 371 and the Export Administration
Regulations regarding exports to India in violation of 50
U.S.C. § 1705(b).
The indictment alleges that BNC and its employees solicited
business for and knowingly exported nuclear pulse generators
and related parts to various entities in India without the
export license required by the Bureau of Export Administration
of the Department of Commerce. Jeff Cole and Candace Kelly are
the Assistant U.S. Attorneys who are prosecuting the case. |
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