| BellSouth Seeks UNE Relief
from FCC |
8/23. Representatives of Time
Warner Telecom and BellSouth
met with officials of the Federal
Communications Commission's (FCC) Wireline Competition
Bureau (WCB) regarding their proposal that the FCC "grant
targeted UNE relief and require carriers to start reporting
eleven special access performance measures".
The two companies recommended to the FCC the following
unbundled network element (UNE) relief: "Sunset switching
UNE for business customers", "Remove dedicated
transport UNE where 3 or more competitive transport providers
exist in either A or Z wire center", and "Retain
local service test for special access circuits that CLECs wish
to convert or to purchase as UNEs". See, materials
[PDF] submitted to the FCC.
BellSouth also stated in a release that "that hundreds of
CLECs have purchased their own switches to provide competitive
business services. This demonstrates that CLECs are not
impaired in providing switching to business customers.
Similarly, ``transport,´´ (dedicated circuits between
telephone company central switching offices) is deemed to be
competitively available in areas where there are three or more
competitive transport providers operating. The framework also
advocates that existing local usage requirements should
continue to apply to certain types of special access lines and
that those lines may not be converted to UNEs unless one of
the local usage tests is met." (Parentheses in original.)
UNE Platform (UNE-P) permits competitors of the incumbent
local exchange carriers (ILECs), such as BellSouth, to use
UNEs at discounted total element long run incremental cost (TELRIC)
rates. The ILECs have long opposed this. However, recent
initiatives, such as this BellSouth Time Warner Telecom
proposal, may reflect concern over increasing use of UNE-P by
interexchange carriers (IXCs) such as AT&T and WorldCom.
Robert McDowell, VP and Assistant General Counsel of CompTel, criticized the
proposal in a statement.
He wrote that "This private agreement is designed to
control the prices and availability of critical
telecommunications services to other competitors and large
retail customers. This self serving arrangement will benefit
two of the largest suppliers of special access services --
Bell South and Time Warner -- to the detriment of competition.
It is obvious that this sweetheart deal is not in the public
interest. CompTel is confident that the Commission will see
through this transparent attempt to get FCC approval of what
is tantamount to a private price fixing agreement, and dismiss
it." |
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| 6th Circuit Expands Public
Right of Access to Quasi Judicial Proceedings |
8/26. The U.S.
Court of Appeals (6thCir) issued its opinion
in Detroit
Free Press v. Ashcroft, holding that the First
Amendment confers a public right of access to deportation
hearings. In 1980 the Supreme Court held in Richmond
Newspapers Inc., v. Virginia, 448 U.S. 555, that there is
a right of access to judicial proceedings. The Sixth Circuit,
relying upon Richmond Newspapers, held that there is a
right of access to a post September 11 deportation hearing,
which is a quasi judicial administrative proceeding.
The Detroit Free Press and
other newspapers, Rabih Haddad, who is a person subject to
deportation, and Rep.
John Conyers (D-MI), the ranking Democrat on the House Judiciary
Committee, filed complaints in U.S. District Court (EDMich)
seeking declaratory and injunctive relief pertaining to a
directive from the Chief Immigration Judge directing U.S.
Immigration Judges to close special interest cases.
The District Court granted the newspaper plaintiffs' motion
for preliminary injunction. It held that the newspaper
plaintiffs have a First Amendment right of access to the
proceedings under Richmond Newspapers.
The Appeals Court affirmed. The Appeals Court also relied upon
Richmond Newspapers. The Court thus expanded the
principle to apply to quasi judicial administrative
proceeding, such as the deportation case at issue. The Appeals
Court, however, did not find that there is a right held by the
press that is distinct from the public's right of access. |
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| 7th Circuit Applies
Doctrine of Laches in Trademark Infringement Case |
8/21. The U.S.
Court of Appeals (7thCir) issued its opinion
[PDF] in Chattanoga
Manufacturing v. Nike and Jordan, a trademark
case involving the mark "Jordan". The Appeals Court
affirmed a District Court dismissal of a trademark
infringement claim brought by a ladies clothing maker which
holds the mark "Jordan" against Nike and Michael
Jordan. The claim is barred by the doctrine of laches.
Background. Plaintiff Chattanoga Manufacturing is a
manufacturer and marketer of women's clothing. It obtained a
USPTO registration of the mark "Jordan" in
connection with women's clothing. Defendant Michael Jordan is
the Michael Jordan. He has licensed to Nike the right to use
his name and image in connection with various Nike products.
Nike makes and markets sporting goods, including Michael
Jordan endorsed footwear, apparel, and accessories. Nike has
extensively used the Jordan name since 1985.
District Court. Chattanoga filed a complaint in U.S.
District Court (NDIll) against Nike and Jordan, alleging
trademark infringement and unfair competition in violation of
the Lanham Act, 15 U.S.C. §§ 1114(1) & 1125(a). Nike
filed counterclaims alleging that Chattanoga's trademark was
improperly registered by the USPTO and should be cancelled.
The District Court found that Chattanoga's trademark
infringement claims were barred under the doctrine of laches
and that Michael Jordan could not be held liable in his
personal capacity. The District Court then dismissed with
prejudice Nike's counterclaims as moot.
Appeals Court. The Appeals Court affirmed. It wrote
that "The doctrine of laches is derived from the maxim
that those who sleep on their rights, lose them. ... For
laches to apply in a trademark infringement case, the
defendant must show that the plaintiff had knowledge of the
defendant's use of an allegedly infringing mark, ... that the
plaintiff inexcusably delayed in taking action with respect to
the defendant's use, and that the defendant would be
prejudiced by allowing the plaintiff to assert its rights at
this time." The Court noted that given the extensiveness
of Nike's advertising, Chattanoga knew of Nike's use of the
mark. Also, since Nike had used the mark since 1985, the delay
in filing suit was unreasonable.
The Court also affirmed the District Court's dismissal of the
Nike counterclaims as moot. However, it held that the
dismissal must be without prejudice. Nike must have a remedy
if Chattanoga tries to pass off ladies clothes as endorsed by
Michael Jordan. |
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| RIAA Seeks to Enforce
Subpoena to Identify Anonymous Infringer |
8/20. The Recording Industry
Association of America (RIAA) filed a motion
and memorandum [19 pages in PDF] in U.S. District Court (DC)
in a proceeding brought by the RIAA for the purpose of
obtaining and enforcing a subpoena of Verizon's Internet
services subsidiary. The RIAA motion states that it seeks the
identity of the user of "a computer connected to the
Verizon network that is a hub for significant music
piracy".
The RIAA motion states that it seeks to enforce a subpoena
issued on July 24, 2002, pursuant to the Digital Millenium
Copyright Act (DMCA). It states that "Verizon has refused
to comply."
17
U.S.C. § 512(h) provides, in part, that "A copyright
owner or a person authorized to act on the owner's behalf may
request the clerk of any United States district court to issue
a subpoena to a service provider for identification of an
alleged infringer in accordance with this subsection."
Subsection 512(h)(5) provides, in part, that "Upon
receipt of the issued subpoena, ... the service provider shall
expeditiously disclose to the copyright owner or person
authorized by the copyright owner the information required by
the subpoena, notwithstanding any other provision of law and
regardless of whether the service provider responds to the
notification."
The proceeding is titled "In Re Verizon Internet
Services, Inc.; Recording Industry Association of America v.
Verizon Internet Services, Inc." It is D.C. No.
1:02MS00323. |
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| 4th Circuit Rules in
Harrods Domain Name Dispute |
8/23. The U.S.
Court of Appeals (4thCir) issued its opinion
[46 pages in PDF] in Harrods
v. Sixty Internet Domain Names, an in rem
action brought by Harrods (the London department store)
involving numerous domain names registered by Harrods (an all
but defunct Buenos Aires business once affiliated with Harrods
of London). The case addresses the issues of trademark
infringement, trademark dilution, and bad faith registration
under the Anticybersquatting Consumer Protection Act (ACPA).
The U.S. District Court (EDVa) dismissed the infringement and
dilution claims, holding that in rem actions could only be
maintained for bad faith registration claims under § 1125(d)(1).
Prior to discovery, the District Court granted summary
judgment with respect to six domain names. After discovery and
trial, the District Court awarded judgment to Harrods UK with
respect to the 54 domain names, and ordered those names to be
transferred to Harrods UK.
The Court of Appeals affirmed the judgment as to the 54 domain
names. It reversed the dismissal of Harrods UK's infringement
and dilution claims. It also reversed the grant of summary
judgment with respect to the six domain names. |
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| Federal Circuit Rules in
Monsanto v. McFarling |
8/23. The U.S.
Court of Appeals (FedCir) issued its opinion
[MS Word] in Monsanto
v. McFarling, a patent and contract case
involving pesticide resistant seeds. The District Court
granted an injunction against McFarling, which the Appeals
Court affirmed. However, McFarling raised a number of tenuous,
but interesting, issues, including enforceability of a choice
of forum clause in a contract, illegal tying under
the Sherman Act, and patent misuse.
Monsanto hold U.S. Patents Nos. 5,633,435 and 5,352,605, for
genetically modified pesticide resistant seeds. Monsanto
authorizes companies to manufacture the patented seeds, which
are then sold to farmers, such as McFarling. Monsanto requires
that the sellers of the seeds obtain from the purchasers a
"Technology Agreement" which provides, among other
things, that the seeds are to be used "for planting a
commercial crop only in a single season". McFarling, a
farmer in Mississippi, purchased Monsanto seeds, signed the
Technology Agreement, and used the seeds over several years.
The agreement also contained a choice of forum clause
designating the Eastern District of Missouri.
Monsanto filed a complaint in U.S. District Court (EDMissouri)
against McFarling alleging patent infringement and breach of
contract. The District Court granted Monsanto injunctive
relief. The Appeals Court affirmed. |
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| 9th Circuit Dismisses
Appeal in Abada v. Schwab |
8/21. The U.S.
Court of Appeals (9thCir) issued its opinion
[PDF] in Abada
v. Charles Schwab, in which the Appeals Court
held that it lacks appellate jurisdiction over a District
Court order remanding to state court a class action suit
alleging that a securities broker misled its customers
concerning the capabilities of its on-line investment system.
Background. Charles
Schwab is a securities broker that allows its customers to
conduct securities transactions over the Internet. Aaron Abada
opened an account with Schwab.
Proceedings Below. Abada filed a complaint in
California Superior Court against Schwab alleging various
stated law claims, including unfair competition in violation
of California Business and Professions Code § 17200 by
"falsely and inaccurately representing" that it
could provide customers with timely access to their accounts
when Schwab knew or should have known that it lacked the
capacity to do so. He sought class action status on behalf of
other online investors with Schwab accounts. Schwab removed
the case to federal court pursuant to 28 U.S.C. §§ 1441 and
1446 and the Securities Litigation Uniform Standards Act of
1998 (SLUSA). Abada moved to remand back to the state court,
on the grounds that the federal court lacked subject matter
jurisdiction. The District Court eventually granted the motion
to remand. Schwab brought the present appeal.
Appeals Court. The Appeals Court dismissed the appeal
on the grounds that it does not have appellate jurisdiction to
review a remand order that is founded on the absence of
subject matter jurisdiction. |
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| Arbitration Clause That
Bars Punitives Does Not Prevent Award of AT Treble Ds |
| 8/22. The U.S.
Court of Appeals (5thCir) issued its revised opinion
[PDF] in Investment
Partners v. Glamour Shots, holding that an
arbitration clause that prevents the award of punitive damages
is enforceable, and does not prevent the award of antitrust
treble damages. Judge Edith Jones, writing for the three judge
panel, opined that "punitive damages are awarded under
notoriously open ended legal standards and a broadly defined
constitutional limit concerning the amount awarded. Treble
damages, however, represent a mere mathematical expansion of
the actual damages". |
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| Tech Crime |
8/23. Robert Keppel entered a guilty plea to a charge of
theft of trade secrets in violation of 18 U.S.C. § 1832(a)(2)
in U.S. District Court
(WDWash). Keppel sold Microsoft Certified System Engineer
(MCSE) and Microsoft Certified Solution Developer (MCSD) exams
and answers at his "cheet sheet" web sites. See, USAO
release.
8/23. The U.S.
District Court (NDCal) sentenced Chan Desaigoudar to 30
months in prison for insider trading in violation of 15 U.S.C.
§§ 78j(b) and 78ff(a). Desaigoudar, a former CEO of
California Micro Devices, was originally charged in an eight
count indictment with conspiracy to commit securities fraud,
two counts of securities fraud, false statements, wire fraud
and insider trading, in connection with revenue recognition
fraud at Cal Micro during 1994. See, USAO
release.
8/23. The U.S.
District Court (EDCal) sentenced Brannon Marlon to thirty
months in prison for mail fraud in connection with a scheme to
fraudulently obtain computer services and products. He
obtained computer products and services valued at over $1.8
Million on credit by submitting fraudulent credit applications
and making other false representations. He then resold some of
these items. See, USAO
release [PDF]. |
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| More News |
8/26. The National
Telecommunications and Information Administration (NTIA)
published a notice
[PDF] in the Federal Register that its has approved FIPS
180–2, Secure Hash Standard, and has determined that the
standard is compulsory and binding on Federal agencies for the
protection of sensitive, unclassified information. See,
Federal Register, Vol. 67, No. 165, August 26, 2002, at pages
54786 - 54787.
8/26. The U.S. District
Court (DC) published in its web site a copy of the May 17,
2002, opinion
[34 pages in PDF] of the U.S. Foreign Intelligence
Surveillance Court criticizing the FBI and Department of
Justice.
8/21. The Recording Industry
Association of America (RIAA) announced that it obtained a
judgment of $136,260,000 on behalf of its member record
companies in U.S.
District Court (CDCal) against against Media Group, a CD
manufacturing plant, and its former CEO, Jimmy Chan, for
copyright infringement. The judgment is based upon 1,500
violations at $90,000 each. However, the defendants do not
have the ability to pay. See, RIAA release. |
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| About Tech Law Journal |
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information page.
Contact: 202-364-8882; E-mail.
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Privacy
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Notices
& Disclaimers
Copyright 1998 - 2002 David Carney, dba Tech Law Journal. All
rights reserved. |
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| Publication Schedule |
| The Tech Law Journal Daily E-Mail Alert will not be
published on Wednesday, August 28, Thursday, August 29,
Friday, August 30, or Monday, September 2. |
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| Tuesday, August 27 |
8:00 AM - 3:30 PM. The National
Academy of Sciences (NAS) will host partially open, and
partially closed, seminar titled "Review of the Patent
Office's 21st Century Strategic Plan". See, agenda.
Location: NAS, Lecture Room, 500 Fifth Street, NW.
10:00 AM - 12:00 NOON. The State Department's International
Telecommunication Advisory Committee (ITAC) will meet. See, notice
in Federal Register, July 23, 2002, Vol. 67, No. 141, at Page
48241. Location: Room 1105, State Department.
Deadline to submit comments to the National Telecommunications
and Information Administration (NTIA) in response to its
request for comments on the effectiveness of Internet blocking
and filtering technologies. § 1703 of the Children's
Internet Protection Act (CIPA) [PDF] directs NTIA to
initiate a notice and comment proceeding to evaluate whether
currently available Internet blocking or filtering technology
protection measures and Internet safety policies adequately
address the needs of educational institutions. It also directs
NTIA to make recommendations to Congress on how to foster the
development of technology protection measures that meet these
needs. See, notice
in the Federal Register. |
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| Wednesday, August 28 |
| 9:30 AM - 3:30 PM. Day one of a two day public hearing
before the Federal Election
Commission (FEC) on its second Notice
of Proposed Rulemaking (NPRM) [67 pages in MS Word]
regarding the Bipartisan Campaign Reform Act of 2002 (BCRA),
the recently enacted campaign finance reform legislation. This
NPRM pertains to "electioneering communications".
The proposed rules would exempt webcasts. See also, FEC release
and agenda. |
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| Thursday, August 29 |
8:30 AM - 12:35 PM. The President's Homeland Security
Advisory Council (PHSAC) will hold a meeting to receive
briefings and to discuss best practices in the areas of
mergers and acquisitions, information technology, personnel
management and related issues that may concern the creation of
the proposed Department of Homeland Security. Public access is
limited. See, notice
in Federal Register. Location: Indian Treaty Room, Eisenhower
Executive Office Building, 725 Seventeenth St., NW.
9:30 AM - 12:00 NOON. Day two of a two day public hearing
before the Federal Election
Commission (FEC) on its second Notice
of Proposed Rulemaking (NPRM) [67 pages in MS Word]
regarding the Bipartisan Campaign Reform Act of 2002 (BCRA),
the recently enacted campaign finance reform legislation. This
NPRM pertains to "electioneering communications".
The proposed rules would exempt webcasts. See also, FEC release
and agenda.
3:00 PM. The President's
Council of Advisors on Science and Technology (PCAST) is
tentatively scheduled to meet via teleconference to discuss
and approve a draft letter to the President on federal
investments in research and development. See, notice
in Federal Register, August 26, 2002, Vol. 67, No. 165, at
Page 54815. The call-in number is 1 800 403-2017. The access
code is 186046.
Deadline to submit comments to the FEC regarding its NPRM
regarding "electioneering communications". |
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| Friday, August 30 |
8:30 - 10:00 AM. Harold Furchtgott Roth and Gregory Sidak of
the American Enterprise
Institute (AEI) will host a press breakfast to discuss
telecom issues. RSVP Veronique Rodman at vrodman @aei.org or call
Heather Dresser at 202 862-5884. Location: AEI, 11th Floor
Conference Room, 1150 17th Street, NW.
Deadline to submit reply comments to the FCC's regarding
its Annual Assessment of the Status of Competition in the
Market for the Delivery of Video Programming. See, notice
in Federal Register. |
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| Sunday, September 1 |
Deadline to submit comments to the National Institute for Standards
and Technology's (NIST) Computer Security Resource Center
(CSRC) regarding its draft
Special Publication 800-48, Wireless Network Security: 802.11,
Bluetooth, and Handheld Devices [PDF]. This publication
examines the benefits and security risks of 802.11 wireless
local area networks, Bluetooth networks, and handheld devices.
NIST solicits comments regarding the technical and operational
countermeasure recommendations. Submit comments to Tom
Karygiannis at sp800-48
@nist.gov. See, NIST
notice.
The Librarian of Congress' webcasting rule takes effect. This
is the final
rule providing the terms for the statutory license for
eligible nonsubscription services to perform sound recordings
publicly by means of digital audio transmissions, also known
as webcasting, pursuant to 17
U.S.C. § 114, and to make ephemeral recordings of sound
recordings for use of sound recordings under the statutory
license set forth in 17
U.S.C. § 112. See also, LOC summary. |
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| Monday, September 2 |
Labor Day. The National Press Club will be closed. The FCC
will be closed.
Deadline to submit suggestions to the Securities and Exchange Commission
(SEC) regarding appointments to the Public Company Accounting
Oversight Board, which was created by HR
3763, the Public Company Accounting Reform and Investor
Protection Act of 2002, also known as the Sarbanes Oxley bill.
See, SEC
release. |
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| Tuesday, September 3 |
The Senate will return from its August recess.
9:30 AM. The U.S.
Court of Appeals (DCCir) will hear oral argument in Biltmore
Forest v. FCC, No. 01-1392. Judges Ginsburg, Sentelle and
Randolph will preside. Location: 333 Constitution Ave., NW. |
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| Wednesday, September 4 |
The House will return from its Summer District Work Period.
Deadline to submit comments to the National Intellectual
Property Law Enforcement Coordination Council (NIPLECC)
regarding its agenda and mission. The NIPLECC is co-chaired by
the U.S. Patent and Trademark
Office (USPTO) and the Department of Justice (DOJ). See, notice
in Federal Register, August 5, 2002, Vol. 67, No. 150, at
Pages 50633 - 50634. See also, the NIPLECC's 2000
report.
Day one of a three day meeting titled "U.S. Ireland
Business Summit". The only event on September 4 is an
evening reception on Capitol Hill in the Cannon Caucus Room
from 6:30 - 8:30 PM. See, conference web site. |
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| Thursday, September 5 |
8:30 AM - 6:00 PM. Day one of a two day conference titled
"Symposium on the Role of Scientific and Technical
Data and Information in the Public Domain" hosted by
the National Academy of Sciences.
See, agenda.
Location: National Academy of Sciences Auditorium
2100 C Street NW.
9:30 AM. The U.S.
Court of Appeals (DCCir) will hear oral argument in CompTel
v. FCC, No. 00-1272. Judges Edwards, Rogers and Williams
will preside. Location: Courtroom 20, 333 Constitution Ave.,
NW.
12:00 NOON. William Lash (Assistant Secretary of Commerce for
Market Access and Compliance) will speak on "Trade
Compliance After TPA". Location: Heritage Foundation, 214
Massachusetts Ave NE.
2:00 - 4:00 PM. The Federal
Communications Commission's (FCC) Advisory Committee for
the 2003 World Radiocommunication Conference (WRC-03 Advisory
Committee) will hold a meeting. This meeting was originally
scheduled for August 22. See, original notice
in Federal Register, July 19, 2002, Vol. 67, No. 139, at Page
47549, and rescheduling notice
in Federal Register, August 2, 2002, Vol. 67, No. 149, at
Pages 50437 - 50438. Location: Commission Meeting Room
(TW-C305), 445 12th Street, SW.
Day two of a three day meeting titled "U.S. Ireland
Business Summit". Secretary of Commerce Don
Evans is scheduled to speak at 9:30 AM. From 2:30 - 4:30
PM there will be a panel discussion titled "Information
and Communications Technology". The scheduled
panelists include FCC Commissioner Kevin Martin.
See, conference web
site. Location: Ronald Reagan Building.
Deadline to request to testify before the Trade Policy Staff
Committee (TPSC) hearing on China's compliance with the
commitments it made in connection with its accession to the World Trade Organization (WTO).
See, U.S. Trade Representative
(USTR) notice
in the Federal Register, July 9, 2002, Vol. 67, No. 131, at
Pages 45580 - 45581. |
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