| DC Circuit Remands FCC Bill
and Keep Order |
5/3. The U.S.
Court of Appeals (DC) issued its opinion
in WorldCom
v. FCC, remanding (but not vacating) the Federal Communications Commission's
(FCC) order on remand regarding it bill and keep system for
ISP bound calls.
47
U.S.C. § 251 provides that local phone companies
compensate each other for handling each other's local calls.
One telephone company pays another telephone company for each
local call the second company completes to one of its
customers. If one customer whose local phone company is the
ILEC makes a local phone call to another person whose local
phone company is a competitive local exchange carrier (CLEC),
the CLEC is entitled to compensation from the ILEC for
completing the call. The same is the case if the call
originates with the CLEC and completes with the ILEC. Hence,
it is "reciprocal compensation."
Section 251(b)(5) provides as follows: "Obligations of
all local exchange carriers[.] Each local exchange carrier has
the following duties: ... (5) Reciprocal compensation[.] The
duty to establish reciprocal compensation arrangements for the
transport and termination of telecommunications."
The problem, the ILECs have argued, is that there is no
reciprocity with calls made for the purpose of connecting to
the Internet. Customers who use dial up modems to access the
Internet via ISPs whose phone company is not the ILEC, place
calls to the Internet, but there are not calls back from the
Internet. Hence, the compensation flows one way; it is not
reciprocal. ILECs have argued that some CLECs are abusing the
system by concentrating on serving ISPs, but not residential
customers, and making the money off of reciprocal compensation
payments.
In 1999, the FCC issued an order stating that ISP bound calls
are not local calls and therefore are not subject to
reciprocal compensation under its rules implementing § 251(b)(5).
The FCC applied an "end to end" analysis, stressing
that ISP bound traffic ultimately reaches web sites that are
typically located out of state. However, the Court of Appeals
vacated that order, holding that the FCC failed to explain why
the end to end analysis, which is traditionally employed in
determining whether a call was jurisdictionally interstate or
not, was relevant to deciding whether ISP calls fitted the
local call or the long distance call model.
The FCC then issued an order on remand (which is at issue in
this case) in which it again concluded that the compensation
in delivering Internet bound traffic to an ISP should not be
governed by the reciprocal compensation provision of § 251(b)(5).
In this order on remand the FCC adopted a bill and keep
system, under which each carrier recovers its costs from its
own end users. The order on remand provides for a phase out of
the old system as existing interconnection agreements expire.
The FCC relied upon § 251(g).
Section 251(g) provides as follows: "Continued
enforcement of exchange access and interconnection
requirements[.] On and after February 8, 1996, each local
exchange carrier, to the extent that it provides wireline
services, shall provide exchange access, information access,
and exchange services for such access to interexchange
carriers and information service providers in accordance with
the same equal access and nondiscriminatory interconnection
restrictions and obligations (including receipt of
compensation) that apply to such carrier on the date
immediately preceding February 8, 1996, under any court order,
consent decree, or regulation, order, or policy of the
Commission, until such restrictions and obligations are
explicitly superseded by regulations prescribed by the
Commission after February 8, 1996. During the period beginning
on February 8, 1996, and until such restrictions and
obligations are so superseded, such restrictions and
obligations shall be enforceable in the same manner as
regulations of the Commission." (Parentheses in
original.)
In the present case, the Appeals Court noted that
"Because ISPs typically generate large volumes of one-way
traffic in their direction, the old system attracted LECs that
entered the business simply to serve ISPs, making enough money
from reciprocal compensation to pay their ISP customers for
the privilege of completing the calls."
However, the Court concluded that § 251(g) "does
not provide a basis for the Commission's action". The
Court held that "Because that section is worded simply as
a transitional device, preserving various LEC duties that
antedated the 1996 Act until such time as the Commission
should adopt new rules pursuant to the Act, we find the
Commission's reliance on § 251(g) precluded. Thus we
remand the case. Because there may well be other legal bases
for adopting the rules chosen by the Commission for
compensation between the originating and the terminating LECs
in calls to ISPs, we neither vacate the order nor address
petitioners' attacks on various interim provisions devised by
the Commission."
In addition, the Court further limited the scope of its
ruling. It also wrote that "we do not decide whether
handling calls to ISPs constitutes ``telephone exchange
service´´ or ``exchange access´´ ... or neither, or
whether those terms cover the universe to which such calls
might belong. Nor do we decide the scope of the
``telecommunications´´ covered by § 251(b)(5). Nor do
we decide whether the Commission may adopt bill-and-keep for
ISP-bound calls pursuant to § 251(b)(5) ... Indeed these
are only samples of the issues we do not decide, which are in
fact all issues other than whether § 251(g) provided the
authority claimed by the Commission for not applying § 251(b)(5).
Moreover, we do not decide petitioners' claims that the
interim pricing limits imposed by the Commission are
inadequately reasoned. Because we can't yet know the legal
basis for the Commission's ultimate rules, or even what those
rules may prove to be, we have no meaningful context in which
to assess these explicitly transitional measures." |
|
|
| District Court Dismisses
Antitrust Complaint in Covad v. Verizon |
5/3. The U.S.
District Court (DC) issued its opinion and
order [PDF] in Covad
v. Bell Atlantic dismissing Covad's antitrust complaint
against Bell Atlantic, which is now known as Verizon. The Court followed
the precedent of Goldwasser v. Ameritech.
Covad filed a complaint against Bell Atlantic and subsidiary
companies on April 28, 1999, alleging that they unlawfully
maintained monopoly power in various telecommunications
markets, including the DSL market, and engaged in
anticompetitive and exclusionary conduct in violation of
Sections 1 and 2 of the Sherman Antitrust Act, 15 U.S.C.
§ 1 and § 2,
Sections 4 and 16 of the Clayton Antitrust Act, 15 U.S.C.
§ 15 and § 26,
the antitrust laws of the District of Columbia, and the common
law.
Covad alleged that Bell Atlantic refused to collocate or
provide physical space and facilities for the placement of
Covad's equipment within Bell Atlantic's central offices,
denied access to local loops, refused to maintain adequate
operations support systems (OSS), and denied access to the
transport facilities that connect Covad's central office
equipment with other points in Covad's network.
The Court concluded that "the Complaint reveals that
virtually all allegations of exclusionary conduct, with the
exception of the retaliatory patent law suit, relate to Bell
Atlantic's failure to comply with the myriad duties contained
in sections 251
and 252
of the 1996 Act."
The Court held that "Covad's allegations, which
essentially relate to Bell Atlantic's failure to comply with
1996 Act duties, fall squarely outside the parameters of
antitrust law. As recognized by the Seventh Circuit in Goldwasser
v. Ameritech, 222 F.3d 390 (7th Cir. 2000), the 1996 Act
contains duties and obligations of affirmative assistance that
``go well beyond anything the antitrust laws would mandate on
their own.´´"
The Court continued that "the duties of affirmative
assistance set forth in the 1996 Act exist outside the
parameters of pre-existing antitrust law. Bell Atlantic's
alleged failure to comply with those duties, which is the
lion's share of Plaintiffs' Complaint, does not constitute
``exclusionary´´ conduct as a matter of law, which is the
sine qua non of any antitrust violation." |
|
|
| FRB Governor Addresses the
Role of Technology in Financial Literacy |
5/2. Federal
Reserve Board (FRB) Governor Edward
Gramlich gave a speech
titled "Financial Literacy" at the Financial
Literacy Teacher Training Workshop, at the University of
Illinois at Chicago. He addressed the use of computer and
Internet technology to promote financial literacy.
He stated that "The rapid development of electronic
delivery systems has resulted in sophisticated interactive
programs, which allow users to construct budgets and enter
their personal data. The Federal Reserve Banks of Dallas and
Chicago have used such technology to develop interactive
web-based programs on financial literacy and money
management."
He added that "With the proliferation of home computers,
the use of technology will continue to offer options for
consumers to increase their knowledge of financial services
and products. The flip side of this opportunity is the
challenge of reaching those who lack the technological access
or capability to participate in these efforts. We need
alternative methods of disseminating information to those
living on the other side of the digital divide." |
|
|
|
| Representatives Introduce
Bill to Ban False Information in Domain Name Registration |
5/2. Rep. Howard Coble
(R-NC) and Rep. Howard
Berman (D-CA) introduced HR 4640,
an untitled bill to criminalize providing false information in
registering a domain name. The bill was referred to the House Judiciary
Committee. Reps. Coble and Berman are the Chairman and
ranking Democrat on the Subcommittee on Courts, the Internet
and Intellectual Property.
The bill would add a new section to the criminal code that
provides that "Whoever knowingly and with intent to
defraud provides material and misleading false contact
information to a domain name registrar, domain name registry,
or other domain name registration authority in registering a
domain name shall be fined under this title or imprisoned not
more than 5 years, or both." |
|
|
| Reps. Conyers and Cannon
Introduce Copyright and Antitrust Bill |
5/2. Rep. John
Conyers (D-MI) and Rep.
Chris Cannon (R-UT) introduced HR 4643,
an untitled bill that would affect the application of
antitrust law to freelance writers and artists, expand the
application of criminal copyright infringement to unpublished
works, and revise the provisions of the Copyright Act
regarding the affect of registration on remedies for
infringement.
First, the bill would provide for the special application of
the antitrust laws to certain negotiations of freelance
writers and freelance artists for the sale of their written
and graphic material to publishers. Specifically, the bill
states that "The antitrust laws shall apply to freelance
writers or freelance artists for purposes of negotiating the
terms and conditions of contracts for the sale of written
material or graphic material created by them to publishers, in
the same manner as such laws apply to collective bargaining by
employees who are members of a bargaining unit recognized
under the National Labor Relations Act (29 U.S.C. 151 et seq.)
to engage in collective bargaining with an employer."
Second, the bill would also rewrite 17 U.S.C.
§ 412, regarding registration as a prerequisite to
certain remedies for copyright infringement.
Third, the bill would expand the criminal copyright
infringement provisions contained in 17 U.S.C.
§ 506(a)(2) and 18
U.S.C. § 2319(c)(3) to include "unpublished
works".
The bill was referred to the House Judiciary
Committee, of which both Reps. Conyers and Cannon are
members. Rep. Conyers is the ranking Democrat. |
|
|
| More New Bills |
5/2. Rep. Ed Markey
(D-MA) introduced HR 4641. The Congressional Record describes
this as a bill "to allocate spectrum for the enhancement
of wireless telecommunications, and to invest wireless
spectrum auction proceeds for the military preparedness and
educational preparedness of the United States for the digital
era, and for other purposes". It was referred to the House Commerce Committee.
5/2. Rep. Mike Pence
(R-IN), Rep. Sheila
Lee (D-TX), and Rep.
Rob Simmons (R-CT) introduced HR 4658, a bill to amend the
criminal code to ban the use of false or misleading domain
names to attract children to web sites that are not
appropriate for children. The bill was referred to the House Judiciary
Committee. |
|
|
| Greenspan Addresses Tech
Sector Stock Options |
5/3. Federal
Reserve Board (FRB) Chairman Alan
Greenspan gave a speech
electronically at the 2002 Financial Markets Conference of the
Federal Reserve Bank of Atlanta, at Sea Island, Georgia,
titled "Stock Options and Related Matters".
He stated that "the very complexity and dynamism of our
system requires that we constantly evaluate the tools employed
for measuring corporate performance to ensure that they adapt
appropriately to the evolving financial and economic
environment. In that regard, the increasing use of stock
option grants to employees has raised new challenges for our
accounting system."
He noted that "Such options are important to the venture
capital industry, and many in high tech industries have
counselled against making any changes to current practices.
They argue that the use of options is an exceptionally
valuable compensation mechanism; that recognizing an expense
associated with these grants would reduce the use of options,
harming high tech companies; that the effect of options on
fully diluted earnings per share is already recognized; and
that we cannot measure the costs of options with sufficient
accuracy to justify their recognition on financial
statements." He added that "These are important
concerns."
Greenspan elaborated that "some view the current
treatment of option grants as having been a major aid in
raising capital to finance the rapid exploitation of advanced
technologies. While the vital contribution of new technology
to the growth of our economy is evident to all, not all new
ideas create value on net. Not all new ideas should be
financed. In recent years, substantial capital arguably was
wasted on a number of enterprises whose prospects appeared
more promising than they turned out to be. This waste is an
inevitable byproduct of the risk taking that generates the
growth in our economy. However, the amount of waste becomes
unnecessarily large when the earnings reports that help
investors allocate investment are inaccurate."
"Stock option grants, properly constructed, can be highly
effective in aligning the interests of corporate officers with
those of shareholders. Such an alignment is an essential
condition for maximizing the long-term market value of the
firm", said Greenspan.
"Regrettably, some current issuance practices have not
created the alignment of incentives that encourages desired
corporate behavior. One problem is that stock options, as
currently structured, often provide only a loose link between
compensation and successful management. A company's share
price, and hence the value of related options, is heavily
influenced by economy wide forces -- that is, by changes in
interest rates, inflation, and myriad other forces wholly
unrelated to the success or failure of a particular corporate
strategy."
Hence, Greenspan recommended that "Stock or options
policy should require that rewards reflect the success or
failure of managements' decisions. Grants of stock or options
in lieu of cash could be used more effectively by tying such
grants through time to some measure of the firm's performance
relative to a carefully chosen benchmark."
He also discussed stock option accounting. |
|
|
| People and Appointments |
| 5/3. President Bush introduced Alberto Gonzalez, his
White House counsel, during a speech
on appointments to the federal judiciary. The White House
transcript contains the following: "He's served on the
U.S. -- or the Texas Supreme Court." Gonzalez was a
Justice of the Supreme Court of Texas from 1999 to 2000. Some
speculate that he is on the President's short list of
potential nominees to the Supreme Court of the U.S. |
|
|
| More News |
5/3. Bruce Mehlman, Assistant Secretary of Commerce for
Technology Policy, gave a speech
titled "The Changing Wealth of Nations: Intellectual
Property in the Age of Innovation" at the Licensing
Executives Society Spring Meeting in Washington DC. He stated
that "our intellectual property regime and education
system will determine our success in the 21st Century".
5/3. The Department of
Justice published in the Federal Register public comments
received on the Revised Proposed Final Judgment in United
States v. Microsoft. See, entry
page, with hyperlinks.
5/3. The U.S. Patent and
Trademark Office (USPTO) announced that on May 6 it begins
hosting intellectual property officials from nine countries
for two weeks of seminars. The officials are from Korea,
Vietnam, Egypt, Mexico, Bulgaria, Croatia, Macedonia, Romania,
and Serbia Montenegro. See, USPTO
release.
5/3. The Securities and Exchange
Commission (SEC) filed a civil complaint
in U.S. District Court (DNJ) against U.S. Funding Corporation
and others alleging violation of U.S. securities laws. The SEC
alleges that defendants fraudulently solicited investors using
bulk e-mail that promised investors a rate of return of 45%
over two years, fully secured. See also, SEC
release.
5/2. President Bush addressed the Foreign Sales Corporation
(FSC) tax regime dispute with EU at a joint press conference
with Spanish President Jose Maria Aznar and EC President Romano
Prodi. Bush stated that "Today, I informed President
Aznar and President Prodi that I will work with our Congress
to fully comply with the WTO decision on our tax rules for
international corporations. This will require both time, and
it will require legislation. I hope and expect that we can all
act in the same spirit of understanding as we work through
other problems." See, transcript.
5/3. President Bush gave a speech in Washington regarding judicial
appointments. He stated that "there is a vacancy
crisis on our federal courts. Both the President and the
United States Senate have constitutional responsibilities to
address vacancies on the federal bench. I have nominated 100
outstanding jurists for these posts. But the Senate thus far
has not done its part to ensure that our federal courts
operate at full strength. Justice is at risk in America, and
the Senate must act for the good of the country." The
Bush administration also released a memorandum
titled "Fact Sheet: President Bush Calls on the Senate to
Address the Vacancy Crisis in the Federal Courts". |
|
|
|
| Monday, May 6 |
The House will meet in pro forma session at 2:00 PM.
The Senate will meet at 3:00 PM.
The Supreme Court is on recess until May 13.
The Council of
the Americas will hold a three day conference titled
"New Realities in the Hemisphere" on May 5-7. On May
6 at 8:45 AM Secretary of State Colin Powell will speak. At
9:30 AM Director of Homeland Security Tom
Ridge will speak. At 10:45 AM Treasury Secretary Paul
O'Neill will speak. At 12:30 PM Commerce Secretary Donald
Evans will give the luncheon address. At 2:45 PM Vice
President Dick Cheney will speak. See, agenda
[PDF]. For more information, call 202 639-0724. Location: Loy
Henderson Conference Room, Department of State, 2201 C Street,
NW.
Deadline to submit requests to attend or participate in the Copyright Office's
public roundtable discussion concerning "issues raised in
the course of an ongoing rulemaking proceeding to adopt
requirements for giving copyright owners reasonable notice of
the use of their works for sound recordings under the section
114 and 112 statutory licenses and for how records of such use
shall be kept and made available to copyright owners."
See, notice
in Federal Register. |
|
|
| Tuesday, May 7 |
The House will meet at 12:30 PM for morning hour and at 2:00
PM for legislative business. No votes are expected before 6:30
PM. The House will consider a number of measures under
suspension of the rules.
9:00 AM - 4:00 PM. The Association for Competitive Technology
(ACT) will host a series of panel discussions on technology
issues. The panels are as follows. 10:00 AM: E-Commerce and
the Revenge of the Middleman; 11:00 AM: International Trade
and the IT Industry; 1:00 PM: Pitfalls of Regulating
Technology. 2:00 PM: Antitrust Enforcement and Merger
Approvals in the IT industry; and 3:00 PM: How to make Fiscal
Policy Friendly to Small Business. Location: Room HC-8, U.S.
Capitol Building.
The Council of
the Americas will hold a three day conference titled
"New Realities in the Hemisphere" on May 5-7. On May
7 at 9:00 AM Sen. Max
Baucus (D-MT) will speak. At 11:45 USTR Robert
Zoellick will speak. See, agenda
[PDF]. For more information, call 202 639-0724. Location: Loy
Henderson Conference Room, Department of State, 2201 C Street,
NW.
12:00 NOON. The Advisory Committee to the Congressional Internet Caucus
will host a luncheon. The speaker will be Marty Cooper,
inventor of the portable cellular telephone and CEO of
ArrayComm. RSVP to rsvp
@netcaucus.org or Danielle Wiblemo at 202 638-4370.
Location: Reserve Officers Assoc.
1:30 to 3:30 PM. The State
Department's International Telecommunication Advisory
Committee, Radiocommunication Sector (ITAC-R) will hold a
meeting. The ITAC advises the State Department on policy,
technical and operational issues with respect to the
International Telecommunication Union. This meeting will
address preparations for the ITU-R World Radiocommunication
Conference 2003 (WRC-03). See, notice
in Federal Register. Location: Department of State, Dean
Acheson auditorium. |
|
|
| Wednesday, May 8 |
The House will meet at 10:00 AM for legislative business.
9:00 AM - 12:00 NOON. The Telecommunications Service Priority
System Oversight Committee will meet. See, notice
in Federal Register. Location: NCS conference room, 2nd floor,
701 South Court House Road, Arlington, VA.
9:30 AM. The Senate
Governmental Affairs Committee will hold a hearing to
examine infrastructure security, focusing on private public
information sharing. Location: Room 342, Dirksen Building.
10:00 AM - 12:00 NOON. The FCBA's
International Practice Committee will host a roundtable
discussion with David Gross, Deputy Assistant Secretary
for International Communications and Information Policy, State
Dept. RSVP to Maggie McBride at 202 719-7101. Location: Wiley Rein & Fielding, 1750
K Street, NW.
10:00 AM. The Senate
Judiciary Committee will hold a hearing regarding reform
of the Federal Bureau of Investigation and Department of
Justice. See, notice.
Press contact: Mimi Devlin at 202 224-9437 Location: Room 226,
Dirksen Building.
12:00 NOON - 1:30 PM. Marybeth
Peters, Register of Copyrights, will speak at the Center for Strategic and
International Studies (CSIS). For more information,
contact Joelle Laszlo at 202 775-3175 or jlaszlo @csis.org.
Location: 4th Floor Conference Room, CSIS, 1800 K St NW.
Extended deadline to submit comments to the FCC in its
proceeding titled "In the Matter of Rules and Policies
Concerning Multiple Ownership of Radio Broadcast Stations in
Local Markets Definition of Radio Markets". See, FCC
release [PDF]. |
|
|
| Thursday, May 9 |
The House will meet at 10:00 AM for legislative business.
10:00 AM - 12:00 NOON. The House Science Committee's
Subcommittee on Research will hold a hearing on the National
Science Foundation Reauthorization Act of 2002. Press
contact: Heidi Tringe Heidi.Tringe
@mail.house.gov or 202 225-4275. Webcast. Location: Room
2318, Rayburn Building.
10:00 AM - 12:00 NOON. The House Science Committee's
Subcommittee on Research will meet to mark up HR 3130,
the Technology Talent Act of 2001 (immediately
following the hearing on the NSF reauthorization bill). This
bill would authorized grants to be awarded on a competitive
basis to institutions of higher education to increase the
number of students studying and receiving associates or
bachelor's degrees in science, mathematics, engineering, and
technology. Press contact: Heidi Tringe Heidi.Tringe
@mail.house.gov or 202 225-4275. Webcast. Location: Room
2318, Rayburn Building.
Deadline to pre-register to attend the NIST's
Advanced Technology Program
(ATP) Advisory Committee meeting on May 14. The agenda
includes a discussion on universities and R&D technology
issues, a presentation on In-Q-Tel
(the CIA's Silicon Valley venture capital group), an update on
the ATP competition, and a presentation on the ATP Computer
Based Software Focus Program. Submit your name, time of
arrival, e-mail address and phone number to Carolyn Stull at carolyn.stull @nist.gov
or 301 975-5607. See, notice
in Federal Register. |
|
|
| Friday, May 10 |
The House will meet at 9:00 AM for legislative business. No
votes are expected after 2:00 PM.
8:30 AM - 4:30 PM. The New
America Foundation and Public Knowledge
will co-host a conference titled "Protecting the
Information Commons: Asserting the Public Interest In
Copyright Law and Digital Infrastructure". The scheduled
speakers include Rep.
Rick Boucher (D-VA). RSVP to Tina Sherman at 202 986-2700
or sherman
@newamerica.net. Location: National Guard Association, One
Massachusetts Avenue NW.
9:00 AM - 5:00 PM. The Copyright
Office (CO) will hold "a public roundtable discussion
concerning issues raised in the course of an ongoing
rulemaking proceeding to adopt requirements for giving
copyright owners reasonable notice of the use of their works
for sound recordings under the section 114 and 112 statutory
licenses and for how records of such use shall be kept and
made available to copyright owners." See, notice
in Federal Register. Requests to attend or participate must be
submitted by close of business on Monday, May 6, 2002.
Location: Room LM620 (Dining Room A), James Madison Memorial
Building, First and Independence Avenue, SE.
9:30 AM. The U.S.
Court of Appeals (DCCir) will hear oral argument in AT&T
v. FCC, No. 01-1467, and Verizon v. FCC, No.
01-1371. Judges Ginsburg, Randolph and Tatel will preside.
Location: 333 Constitution Ave. NW.
9:30 AM - 1:00 PM. The SEC will hold
an event titled "Investor Summit" which will also be
webcast. See, SEC release.
Location: WOD Room, basement, SEC, 450 5th Street NW.
10:00 AM. The U.S.
Court of Appeals (FedCir) will hear oral argument in ULead
Systems v. Lex Computer, No. 01-1320, an appeal from the U.S. District Court
(CDCal). The lower court held that U.S.
Patent No. 4,538,188 is unenforceable due to the owner's
inequitable conduct in fraudulently paying reduced small
entity maintenance fees to the USPTO when it
was not a small entity. Location: LaFayette Square, at 717
Madison Place, NW.
12:15 PM. The The FCBA's
Wireless Committee will host a luncheon.
1:00 PM. The House
Commerce Committee's Subcommittee on Telecommunications
and the Internet will hold a field hearing titled
"Chatting On Line: A Dangerous Proposition for
Children." Rep.
Fred Upton (R-MI) will preside. Press contact: Ken Johnson
or Jon Tripp at 202 225-5735. Location: Kalamazoo Central High
School, Kalamazoo, MI. |
|
|
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