| Supreme Court Denies Cert
in Cable Caps Case |
12/3. The Supreme
Court denied a petition for writ of certiorari, without
opinion, in Consumer Federation of America v. FCC, a
case regarding cable ownership caps. See, Order
List at page 2. (Supreme Court No. 01-223.)
The Consumer Federation
of America sought review of the March 2, 2001, opinion
of the U.S.
Court of Appeals (DCCir) in Time
Warner Entertainment v. FCC, 240 F.3d 1126 (DC
Cir, 2001). That opinion overturned the FCC's cable ownership
caps. AT&T and Time
Warner petitioned for review of the FCC's cable
ownership rules on First Amendment grounds. The FCC's horizontal
rule imposed a 30% limit on the number of
subscribers that may be served by a multiple cable system
operator. Its vertical limit
was set at 40% of channel capacity, reserving 60% for
programming by non affiliated firms.
The three
judge panel of the Court of Appeals reversed and
remanded both the horizontal and vertical limits. The Court
followed the Supreme Court's ruling in Turner
Broadcasting I that cable operators are
"entitled to the protection of the speech and press
provisions of the First Amendment." The court, applying
the intermediate scrutiny standard, then held that the
"horizontal limit interferes with petitioners' speech
rights by restricting the number of viewers to whom they can
speak. The vertical limit restricts their ability to exercise
their editorial control over a portion of the content they
transmit."
The Office of the
Solicitor General filed a brief
in opposition to granting certiorari in November. It
argued several grounds, including that the FCC initiated a Further
Notice of Proposed Rulemaking [60 page PDF file] on
September 21, 2001, to further develop the record in support
of an order that might withstand judicial scrutiny. See also, FCC
release. (FCC 01-263.) |
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| First Circuit Affirms in
Gupta v. Cisco |
| 12/3. The U.S.
Court of Appeals (1stCir) issued its opinion
in Dev
Vrat Gupta v. Cisco Systems, a dispute over
ownership of stock in Maxcomm
Technologies. Gupta is engineer and former employee of Cisco. He founded Maxcomm
while employed by Cisco. An arbitrator, the District Court,
and the Court of Appeals all upheld Cisco's right to
repurchase Maxcomm stock pursuant to its agreements with Gupta
that it could repurchase the stock if he left Maxcomm before
January 2002. |
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| Appeals Court Enforces
Arbitration Clause in Fee Agreement |
12/3. The U.S.
Court of Appeals (1stCir) issued its opinion
in Summit
Packaging v. Kenyon & Kenyon, a case
regarding the enforceability of an arbitration clause of a
retainer agreement in dispute regarding alleged legal
malpractice and unfair billing in a patent infringement
lawsuit.
Kenyon & Kenyon is a
law firm that focuses on intellectual property law. It
represented Summit Packaging in a patent infringement lawsuit.
The retainer agreement between them provided that "In the
event any dispute arises between us concerning our
representation or payment of our fees and disbursements which
cannot be promptly resolved to our mutual satisfaction, you
agree that the dispute will be submitted to arbitration ...
or, if you prefer, submitted to the Courts of the State of New
York ..."
Summit filed a complaint in New Hampshire Superior Court
against Kenyon alleging legal malpractice and unfair billing
practices. Kenyon removed the case to U.S. District Court (DNH).
Kenyon moved for summary judgment, based on the arbitration
clause. The District Court ruled that the arbitration clause
is permissive, not mandatory, and denied the motion.
The Appeals Court held that the arbitrary clause is mandatory,
and reversed. It wrote that "When Summit filed this
action in New Hampshire Superior Court, it decided to forego
bringing suit in New York. In so doing, arbitration became the
mandatory, and exclusive, forum for dispute resolution." |
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| More Identity Theft Bills
Introduced |
11/29. Sen. Maria
Cantwell (D-WA) introduced S 1742,
the Restore Your Identity Act of 2001, a broad bill pertaining
to prevention of identity theft. It was referred to the Senate Judiciary
Committee.
11/28. Rep. Jan
Schakowsky (D-IL) and others introduced HR 3368,
the Protect Victims of Identity Theft Act of 2001, a short
bill that would amend the Fair Credit Reporting Act (FCRA)
with respect to the statute of limitations on actions. It
would amend the FCRA, 15
U.S.C. § 1681, et seq., to provide that "An action
to enforce any liability created under this title may be
brought in any appropriate United States district court,
without regard to the amount in controversy, or in any other
court of competent jurisdiction, not later than 2 years after
the date on which the violation is discovered or should have
been discovered by the exercise of reasonable diligence."
11/28. Rep. John
Shadegg (R-AZ) introduced HR 3369,
the Fair Credit Reporting Act Amendment of 2001, another bill
to amend the FCRA to provide that the statute of limitations
begins to run on the "earlier of the date on which the
consumer discovers, or the date by which the consumer
reasonably should have discovered, the violation giving rise
to the liability". It too was referred to the House Financial
Services Committee and House Judiciary
Committee.
These bills, and others, are, in part, a response to the
November 13 opinion
[PDF] of Supreme
Court of the U.S. in TRW v. Andrews, a case
regarding the running of the two year statute of limitations
governing suits based on the FCRA. In that case, Adelaide
Andrews had her identity stolen. An imposter obtained her
name, social security number, and other information, which she
provided to a radiologist. This imposter then used this
information to apply for credit in her name. TRW, a credit
reporting agency now known as Experian, disclosed her
credit record upon each application. She filed a complaint in
U.S. District Court (CDCal) against TRW alleging violation of
the FCRA. She filed her suit 17 months after learning of TRW's
disclosures, but more than two years after the disclosures.
The District Court ruled that the statute of limitations had
run. The Ninth Circuit reversed. The Supreme Court ruled that
the statute had run. |
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| Education & Tech
Commission Proposed |
| 11/27. Rep. Mike
Ferguson (R-NJ) and Rep.
Danny Davis (D-IL) introduced H
Res 295, a resolution pertaining to education and
technology. It "urges the creation of a commission on
technology and education that would (1) provide clear and
focused goals for the future of classroom educational
technology and make recommendations to efficiently implement
technology to accomplish these goals ..." |
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| More News |
12/3. The U.S. Court of
Appeals (FedCir) heard oral argument in Datapoint
Corporation v. Standard Microsystems, No. 99-1239, and Charles
E. Hill & Associates v. Compuserve, No. 00-1562.
12/3. The GAO
released a report
[PDF] titled "Information Technology: Leading Commercial
Practices for Outsourcing of Services". The report was
prepared for Sen. Daniel
Akaka (D-HI) and Sen. James Inhofe (R-OK), the Chairman
and ranking Republican on the Senate Armed Service Committee's
Subcommittee on Readiness and Management Support. |
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| Verizon CEO Addresses
Legislative Issues |
12/3. Ivan Seidenberg, P/CEO of Verizon, gave a speech
at the National Press Club
in Washington DC in which he addressed the Tauzin Dingell
bill, spectrum regulation, and other issues.
Tauzin Dingell Bill. He stated that "the issue on
broadband is really pretty simple: how to push more diverse
technologies into the marketplace where they can fuel the
economy, stimulate innovation, and give America the secure,
redundant infrastructure it needs. In our industry -- as in
all capital intensive, technology driven businesses -- it's
also pretty clear how to do that: promote new investment by
taking down the ``do not enter´´ signs that impede the flow
of capital. At the most basic level, that’s what the
broadband legislation known as the Tauzin Dingell bill is
designed to do. "
This bill, HR 1542,
was reported by the House Commerce Committee last spring. It
was reported unfavorably by the House Judiciary Committee on
June 18. It has not yet been brought to the House floor for
debate and vote. Seidenberg stated that "We're hopeful
that the House of Representatives will bring this legislation
to a vote in the next two weeks ..."
Spectrum Management. Seidenberg stated that "In
order to ensure continued growth and innovation in this vital
industry, we needed to get more spectrum in the hands of
companies that have the will and the wherewithal to actually
put this resource to work for customers. And, while the
spectrum auctions were a major step forward, the continuation
of the spectrum cap put a lid on growth and acted as a barrier
to the natural evolution of this industry."
Depreciation. Seidenberg also called for tax relief. He
said that "the Congress should enact an economic stimulus
package that contains meaningful incentives for capital
investment. Unlike previous recessions that have been
triggered by a decline in consumer spending, this one has been
led by a huge slowdown in capital spending. Therefore, we
believe any recovery package needs to include changes in the
tax law to encourage new investment. In particular, we support
the proposal -- included in the economic stimulus package
passed by the House of Representatives as well as the one
proposed by Senate Republicans -- that would give a 30 percent
"bonus depreciation" for companies making new
equipment purchases over the next three years." |
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| FEC NPRM on Internet Speech |
12/3. Monday, December 3, was the deadline to submit
comments to the Federal Election
Commission (FEC) regarding its proposed rule changes
affecting political activity on the Internet. The FEC is the
agency charged with enforcing the Federal Election Campaign
Act (FECA), which regulates political contributions and
expenditures. While the FEC had previously considered wide
ranging regulation of political speech on the Internet, this
Notice of Proposed Rulemaking (NPRM) merely proposes to permit
certain personal political web sites, and to allow
corporations and unions to put certain hyperlinks and press
releases in their web sites. See, TLJ
story of September 27, 2001. See also, FEC release,
and notice
in the Federal Register.
The Alliance for Justice
submitted a comment
in which it stated that it "generally supports the
regulations proposed" by the FEC. It further stated that
"any regulation should foster the Internet's potential to
be a low-cost, democratic forum for greater participation in
the political process."
The FEC approved the Notice of
Proposed Rulemaking (NPRM) [PDF] at its September 27
meeting. It proposes three rule changes. First, it would
provide that there would be no contribution or expenditure
within the meaning of the FECA when an individual, without
receiving compensation, uses his or her own computer
equipment, software, Internet services or domain names to
attempt to influence a federal election. Second, it would
allow corporations and unions to include hyperlinks to the web
sites of candidates and political committees. Third, it would
allow corporations and unions to publish in their web sites
copies of press releases endorsing candidates.
Personal Web Sites. First, the NPRM states that the FEC
"is proposing to add a new section 117.1, which would
describe certain types of individual Internet activities that
would not be treated as contributions or expenditures. Section
117.19(a) would contain an exception from the definition of
"contribution" in section 100.7(a) of the current
regulations. Section 117.1(b) would contain a parallel
exception from the expenditure definitions in sections
100.8(a) and 109.1. Proposed sections 117.1(a) and (b) would
state that no contribution or expenditure results where an
individual, without receiving compensation, uses computer
equipment, software, Internet services or Internet domain
name(s) that he or she personally owns to engage in Internet
activity for the purpose of influencing any election to
Federal office."
Corporate and Union Hyperlinks. Second, the NPRM states
"New section 117.2 would state that the establishment and
maintenance of a hyperlink from the web site of a corporation
or labor organization to the web site of a candidate or party
committee for no charge or for a nominal charge would not be a
contribution or expenditure ..." However, there are also
limitations on this rule.
Corporate and Union Press Releases. Third, the NPRM
states that "a corporation or labor organization may make
a press release announcing a candidate endorsement available
to the general public on its web site ..." However, to
qualify, the corporation or union must regularly publish press
releases in its web site, the release must be limited to the
announcement of the endorsement and the reasons, the release
must be made available in the same manner as other releases,
and the cost must be de minimis. |
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| Subscriptions |
| Starting on January 1, 2002, the Tech Law Journal Daily
E-Mail Alert will be a subscription based service. All persons
who have already subscribed, or who subscribe before December
31, 2001, will be kept on the subscription list until December
31, 2001. The basic rate for a subscription is $250 per year.
However, there are discounts for entities with multiple
subscribers. Free one month trial subscriptions are available.
Also, free subscriptions are available for law students,
journalists, elected officials, and employees of the Congress,
courts, executive branch. The TLJ web site will remain a free
access web site. No hyperlinks will be broken. However, copies
of the TLJ Daily E-Mail Alert and news items will not be
published in the web site until one month after writing. See, subscription
information page. |
|
|
| About Tech Law Journal |
Tech Law Journal is a free access web site and e-mail alert
that provides news, records, and analysis of legislation,
litigation, and regulation affecting the computer and Internet
industry. This e-mail service is offered free of charge to
anyone who requests it. Just provide TLJ an e-mail address.
Number of subscribers: 2,244.
Contact: 202-364-8882; E-mail.
P.O. Box 4851, Washington DC, 20008.
Privacy
Policy
Notices
& Disclaimers
Copyright 1998 - 2001 David Carney, dba Tech Law Journal. All
rights reserved. |
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| Tuesday, Dec 4 |
The House will meet at 12:30 PM for morning hour and 2:00 PM
for legislative business. No recorded votes are expected
before 7:00 PM. The House will consider several measures under
suspension of the rules.
Day one of a two day conference hosted by the Business Software Alliance (BSA)
titled "Global Tech Summit." See, agenda.
Location: Omni Shoreham Hotel, 2500 Calvert Street.
LOCATION CHANGE. 9:00 AM -
5:00 PM. There will be an interagency public workshop on Gramm
Leach Bliley (GLB) Act privacy notices. A joint announcement
states that the "workshop will provide a forum to
identify successful GLB Act privacy notices, discuss
strategies for communicating complex information, and
encourage industry self regulatory efforts and consumer and
business education." The participating agencies are the FTC,
Federal Reserve System, CFTC, Treasury Department,
Comptroller of the Currency, Office of Thrift Supervision, FDIC,
National Credit Union Administration, and the SEC. See, also
FTC
page on workshop. FTC Chairman Timothy Muris will give
opening remarks at 9:00 AM. FTC Commissioner Mozelle Thompson
will speak at 12:00 NOON. Former location: TC, 600
Pennsylvania Avenue, NW, Room 432. New location:
Ronald Reagan Building and International Trade Center,
Pennsylvania Ave. and 13½ St., NW.
9:00 AM. Bureau of Export
Administration's (BSA) Regulations and Procedures
Technical Advisory Committee (RPTAC) will hold a meeting. It
will be partly open and partly closed. The open agenda
includes an update on Wassenaar Arrangement and a
review of encryption regulations. See, notice
in Federal Register. Location: Room 3884, Herbert Hoover
Building, 14th Street between Constitution and Pennsylvania
Avenues.
9:00 AM - 5:00 PM. Day one of a three day meeting of NIST's
Computer System
Security and Privacy Advisory Board (CSSPAB). See, notice
in Federal Register. Preregistration is required to attend; to
register, contact Elaine Frye by November 30, 2001, at elaine.frye@nist.gov or
301 975-2819. Location: NIST, Administration Building, Lecture
Room B, in Gaithersburg, MD.
10:00 AM. The Senate
Judiciary Committee will hold another hearing in its
ongoing series of hearings titled "DOJ Oversight:
Preserving Our Freedoms While Defending Against
Terrorism." These hearings began on December 28. They are
scheduled to continue at 2:00 PM, and again at 10:00 AM on
December 6. This hearing will focus on military tribunals, and
will be chaired by Sen.
Charles Schumer (D-NY). Location: Room 226, Dirksen
Building.
10:00 AM. The Senate
Finance Committee will meet to mark up S
1209, to amend the Trade Act of 1974 to consolidate and
improve the trade adjustment assistance programs, to provide
community based economic development assistance for trade
affected communities. Location: Room 215, Dirksen Building.
10:00 AM. The House
Judiciary Committee will hold a hearing on direct
broadcast satellite service and competition in the
multichannel video distribution market. Location: Room
2141, Rayburn Building.
1:30 PM. Rep.
Sherwood Boehlert (R-NY), Rep. Ralph Hall (D-TX), Rep. Nick Smith
(R-MI), and other members of the House Science Committee,
will hold a press conference to announce the introduction of
bills pertaining to cyber security and information
technology. Rep. Boehlert, the Chairman of the Committee,
will introduce a bill titled the "Cyber Security Research
and Development Act". Rep. Smith, the Chairman of the
Research Subcommittee, will introduce a bill, titled the
"Networking and Information Technology Research
Advancement Act". It authorizes an increase in basic
research in information technology at six federal agencies
(NSF, DOE's Office of Science, NASA, NIST, NOAA and EPA); it
amends the 1991 High Performance Computing Act. Location:
House Triangle.
2:00 PM. The House
Commerce Committee's Subcommittee on Telecommunications
and the Internet will hold a hearing titled The Status of
Competition in the Multi Channel Video Programming
Distribution Marketplace. The scheduled witnesses include
Charlie Ergen (EchoStar),
Eddy Hartenstein (DIRECTV),
Robert Sachs (NCTA),
Neal Schnog (Univision,
on behalf of the ACA), Bob Phillips
(Nat. Rural Telecom. Coop.), Jared Abbruzzese (WSNET), Marshall Pagon
(Pegasus Communication), Michael Fiorile (Dispatch Broadcast
Group on behalf of the NAB).
Location: Room 2123, Rayburn Building.
2:00 AM. The Senate
Judiciary Committee will hold another hearing in its
ongoing series of hearings titled "DOJ Oversight:
Preserving Our Freedoms While Defending Against
Terrorism." These hearings began on December 28. They are
scheduled to continue 10:00 AM on December 6. This hearing
will focus on detainees, and will be chaired by Sen. Russ Feingold
(D-WI). Location: Room 226, Dirksen Building. |
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| Wednesday, Dec 5 |
The House will meet at 10:00 AM.
Day two of a two day conference hosted by the Business Software Alliance (BSA)
titled "Global Tech Summit." See, agenda.
Location: Omni Shoreham Hotel, 2500 Calvert Street, NW.
The Supreme Court of
the United States will hear oral argument in Verizon
Maryland v. Public Service Commission of Maryland, Nos.
00-1531 and 00-1711.
9:00 AM. The Senate
Commerce Committee's Subcommittee on Science, Technology,
and Space will hold a hearing "to examine the technology
sector in times of crises". Location: Room 253, Russell
Building.
9:00 AM - 5:00 PM. Day two of a three day meeting of NIST's
Computer System
Security and Privacy Advisory Board (CSSPAB). See, notice
in Federal Register. Preregistration is required to attend; to
register, contact Elaine Frye by November 30, 2001, at elaine.frye@nist.gov or
301 975-2819. Location: NIST, Administration Building, Lecture
Room B, in Gaithersburg, MD.
10:00 AM. The FCC's Technological Advisory
Council will hold a meeting. See, notice
in Federal Register. Location: FCC, 445 12th St., SW., Room
TW-C305.
10:00 AM. The Senate
Judiciary Committee will hold a hearing on pending
nominations, including Callie Granade (to be U.S. District
Judge for the Southern District of Alabama), Marcia Krieger
(Colorado), James Mahan (Nevada), Philip Martinez (Western
District of Texas), and Ashley Royal (Middle District of
Georgia). Sen. Dick Durbin
(D-IL) will preside. Location: Room 226, Dirksen Building.
12:15 PM. The Federal
Communications Bar Association's (FCBA) Cable Practice
Committee will host a luncheon. The speaker will be Barbara
Esbin, Associate Bureau Chief, FCC Cable Services Bureau.
The price to attend its $15. RSVP to Wendy Parish. Location: NCTA,
1724 Massachusetts Avenue, NW.
12:15 PM. The Federal
Communications Bar Association's (FCBA) Mass Media
Practice Committee will host a brown bag lunch. The topic will
be "Meet the Mass Media Trade Press". RSVP to: Barry Umansky.
Location: NAB, ground floor
conference room, 1771 N Street, NW.
1:00 - 3:00 PM. The FCC's International
Bureau will hold a roundtable discussion on the Bureau's
Electric Filing System (IBFS). Location: FCC, Room 6B516, 445
12th Street, SW.
2:00 - 5:00 PM. Day one of a two day open business meeting of
the U.S. National Commission
on Libraries and Information Science. See, notice
in Federal Register. Location: Conference Room, NCLIS Office,
1110 Vermont Avenue, NW., Suite 820.
2:15 PM. The House Rules
Committee will meet to adopt a rule for consideration of HR
3005, the Bipartisan Trade Promotion Authority Act
of 2001. |
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| Thursday, Dec 6 |
The House is scheduled to vote on HR 3005,
the Bipartisan Trade Promotion Authority Act of 2001. 9:00 AM
- 5:00 PM. Day one of a two day conference hosted by the NTIA
regarding its grant program named "Technology
Opportunities Program", or TOP. See, agenda.
NTIA officials and grant recipients will speak on the first
day. The second day will focus on how to write TOP grant
applications. The price to attend is $65. Location:
Renaissance Hotel, 999 Ninth Street NW.
9:00 AM - 9:45 AM. Bernadette Rivera (Associate Administrator
of the NTIA), Nancy Victory (head of the NTIA), and Stephen
Downs (Director of the TOP Grant program) will speak at the
NTIA's confence on TOP grants.
9:00 AM - 5:00 PM. Day three of a three day meeting of NIST's
Computer System
Security and Privacy Advisory Board (CSSPAB). See, notice
in Federal Register. Preregistration is required to attend; to
register, contact Elaine Frye by November 30, 2001, at elaine.frye@nist.gov or
301 975-2819. Location: NIST, Administration Building, Lecture
Room B, in Gaithersburg, MD.
9:00 AM - 12:00 NOON. Day two of a two day open business
meeting of the U.S. National
Commission on Libraries and Information Science. See, notice
in Federal Register. Location: Conference Room, NCLIS Office,
1110 Vermont Avenue, NW., Suite 820.
9:30 AM. The The U.S.
Court of Appeals for the District of Columbia Circuit will
hear oral argument in Channel 32 Hispanic v. FCC, No. 00-1527.
Judges Edwards, Henderson and Garland will preside. Location:
333 Constitution Ave., NW.
10:00 AM. The House
Judiciary Committee's Subcommittee on Commercial and
Administrative Law and Subcommittee on Courts, the Internet,
and Intellectual Property will hold a joint hearing on the
proposed settlement agreement between NextWave, the
FCC, the DOJ, and the Auction 35 winning bidders. Location:
Room 2141, Rayburn Building.
10:00 AM. The Senate
Judiciary Committee will hold another hearing in its
ongoing series of hearings titled "DOJ Oversight:
Preserving Our Freedoms While Defending Against
Terrorism." These hearings began on December 28. Attorney
General John Ashcroft is scheduled to testify. Sen. Patrick Leahy
(D-VT) will preside. Location: Room 106, Dirksen Building.
11:00 AM. The House
Science Committee will meet to mark up the Networking
and Information Technology Research Advancement Act,
sponsored by Rep.
Sherwood Boehlert (R-NY),and the Cyber Security Research
and Development Act, sponsored by Rep. Nick Smith
(R-MI). Location: Room 2318, Rayburn Building.
11:00 AM. George Washington University's Democracy Online
Project will host press conference. Location: National Press Club, 529 14th
St., NW, 13th Floor.
12:00 NOON - 4:00 PM. George Washington University's Democracy Online
Project will host a debate titled "Privacy &
Online Politics: Is online profiling doing more harm than good
for citizens in our political system?" The scheduled
participants include Scott Harshbarger (Common Cause), Jeffrey
Eisenach (Progress & Freedom Foundation), and Marvin Kalb.
RSVP to dop@gwu.edu or 202
994-3219. Location: Holeman Lounge, National Press Club, 529 14th
St., NW, 13th Floor.
12:15 PM. The FCBA's
Online Communications Practice Committee will host a brown bag
lunch. Tod Cohen, Washington Counsel and Director of
Governmental Affairs for Ebay, will give an address titled
"Broadband, When?" RSVP to Diane Raley. Location: Covington & Burling, 1201
Pennsylvania Avenue, NW, 11th Floor.
12:30 PM. The Federal
Communications Bar Association's (FCBA) FCC Enforcement
Committee will host a brown bag lunch. The speaker will be David
Solomon of the FCC's Enforcement
Bureau. Location: Wiley Rein
& Fielding, 1750 K Street, NW, 10th Floor.
The Bureau of Export
Administration will host a course titled "Essentials
of Export Controls". The price to attend is $100. For
more information, contact Douglas Bell at 202 482-2642.
Location: Ronald Reagan International Trade Center.
6:30 - 7:30 PM. There will be a panel discussion on Cyber
Security. The speakers will be Richard Forno (Shadowlogic),
Mark Rasch (Predictive
Systems), Amit Yoran (Riptech),
and Declan McCullagh (Wired
News). In addition, Richard Clarke (Office of Homeland
Security) has been invited. A reception will follow. The
event is free for National Press Club members, and $10 for
others. For reservations, contact 202 662-7501 or pnelson @press.org.
Location: National Press Club,
529 14th St. NW, 13th Floor. |
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