| 1st Circuit Rules in Cell
Tower Permit Case |
9/5. The U.S.
Court of Appeals (1stCir) issued its opinion
in ATC
Realty v. Town of Kingston, a cell tower permit
case. The Appeals Court reversed a District Court order to
grant permits to construct a cell tower.
Background. The plaintiffs, ATC Realty and SBA Towers,
develop cell towers, and then lease antenna facilities on
these towers to wireless service companies. They sought
permits from the Town of Kingston, New Hampshire, to construct
a tower to fill a gap in coverage of wireless service
companies. It was one of two applications considered at the
same time. Kingston rejected the ATC/SBA applications, and
granted the applications of its competitor.
Kingston's written determination listed four reasons,
including its decision to "require cooperation and
coordination between telecommunications service
providers", "reduce adverse impacts on neighborhood
aesthetics", "reduce the visual intrusiveness",
and require that "all other reasonable opportunities have
been exhausted".
District Court. ATC and SBA filed a complaint in U.S. District Court (DNH)
against Kingston, alleging that the refusal was not based upon
substantial evidence, as required by 47 U.S.C.
§ 332(c)(7)(B)(iii). The District Court granted summary
judgment to ATC and SBA. Kingston appealed.
Court of Appeals. The Appeals Court reversed, and
entered summary judgment in favor of Kingston.
"This case does not involve a claim that the Board has
effectively prohibited the provision of telecommunication
services needed to close a service gap. See 47 U.S.C. §
332(c)(7)(B) (i)(II). Rather, the Board has granted permission
to plaintiffs' competitors to build a tower which will close
the service gap along Route 125."
The Appeals Court found that "the plaintiffs have failed
to demonstrate that the Board's selection was not supported by
substantial evidence. The Planning Board was presented with
two proposed towers that were virtually identical: the towers
were of the same height; covered the same area; accommodated
almost the same number of wireless providers; could be seen,
in comparable fashion, from Route 125; had residential
abutters; and were roughly equidistant from commercial zones.
There is only one substantive difference between the proposed
towers: unlike American Tower's application, plaintiffs'
proposal engendered much opposition due to its adverse impact
on the surrounding neighborhood aesthetic." |
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| Law Professor Criticizes
Supreme Court Spectrum Speech Cases |
9/6. The American Enterprise
Institute's (AEI) and Brookings
Institution's Joint Center for Regulatory Studies
published a paper
[77 pages in PDF] titled "The Logic of Scarcity: Idle
Spectrum As a First Amendment Violation", by Stuart
Benjamin. The article takes issue with the Supreme Court's
landmark First Amendment cases involving use of spectrum -- National
Broadcasting Company v. US, 319 U.S. 190 (1943) and Red
Lion v. FCC, 395 U.S. 367 (1969).
He writes that "The Supreme Court has distinguished the
regulation of radio spectrum from the regulation of printing
presses, and applied more lenient scrutiny to the regulation
of spectrum, based on its conclusion that the spectrum is
unusually scarce."
"I suggest that in most cases the only interest that
would justify a refusal to allocate spectrum is nontrivial
interference. I thus conclude that, even if one accepts the
current state of the doctrine, the government cannot exclude
noninterfering uses from the spectrum."
Benjamin, who is a law professor at the University of Texas,
argues that "the scarcity rationale does not support, and
instead undercuts, government actions that limit the use of
the spectrum. ... And no other rationale would distinguish
spectrum from print in a way that would support government
constraints on the former but not the latter."
He argues in this paper that the appropriate standard of
review "is the intermediate scrutiny ordinarily applied
to content neutral speech regulation. In order to satisfy such
scrutiny, the government must put forward an important or
substantial government interest. I suggest that in most cases
the only interest that would justify a refusal to allocate
spectrum is nontrivial interference. I thus conclude that,
even if one accepts the current state of the doctrine, the
government cannot exclude noninterfering uses from the
spectrum." |
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| 10th Circuit Construes
Contract to Locate Venture Capital |
8/28. The U.S.
Court of Appeals (10thCir) issued its opinion,
titled "Order and Judgment", in Fonix v. Perpetual
Growth Fund Advisors, a case involving an
agreement to locate venture capital for a technology company
in return for a commission.
Background. Fonix
Corporation makes speech recognition software. Perpetual
Growth Funds Advisors locates investors to provide venture
capital for start up technology companies. Fonix and Perpetual
entered into a written contract whereby Fonix agreed to pay
Perpetual a commission for locating an investor. Perpetual
drafted a document that provided for a "fee of 5% paid at
closing of a financing between Fonix Corp and an investor that
is a result of an introduction by Perpetual". Perpetual
located an investment advisor. Five funds advised by this
advisor bought $10 Million in Fonix stock. Fonix wired
$500,000 to Perpetual. Perpetual also wrote to Fonix that
"This wire will indicate there are no outstanding
obligations between Fonix Corporation and Perpetual Growth
Adivsors." Fonix later obtained $56 Million in financing
from other investors. Perpetual requested 5% of this amount as
"trailing fees". Fonix refused.
District Court. Fonix filed a complaint in U.S.
District Court (DUtah) against Perpetual based upon
diversity of citizenship seeking declaratory judgment that it
owed nothing to Perpetual. Perpetual counterclaimed for
payment under the contract. The District Court held that both
the agreement and the evidence as to the parties' intent were
ambiguous, and hence, resolved the ambiguity against the
drafter of the contract, Perpetual. That is, it held that
Fonix does not have to pay trailing fees. Perpetual appealed.
Appeals Court. The appeals court affirmed. It found
that the contract was ambiguous as to whether trailing fees
would be paid. It wrote that the expert witnesses disagreed
regarding standard industry practice regarding the payment of
trailing fees. Finally, it wrote that the parties presented
conflicting evidence regarding their discussions.
The Appeals Court concluded, "Having appropriately
concluded that the extrinsic evidence failed to clarify the
terms of the agreement, the district court properly
interpreted the agreement against the drafter".
However, the Appeals Court also wrote that "This order
and judgment is not binding precedent" beyond the parties
to the case. |
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| Antitrust Division Files
Complaint Against ADM |
| 9/6. The Justice
Department (DOJ) filed a complaint in U.S. District Court (DC)
against Archer Daniels
Midland (ADM) to block a joint venture with a competing
corn wet miller in order for ADM to proceed with its proposed
acquisition of Minnesota
Corn Processors (MCP). The DOJ simultaneously filed a
proposed consent decree. See, DOJ
release. Meanwhile, ADM announced "the completion of
the acquisition" of MCP in its release
of September 6. It did not reference the litigation. According
to the DOJ, the transaction would have reduced the number of
competitors in the relevant market from five to four. ADM has
a history with the DOJ. |
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| Appeals Court Vacates
Restitution Order for Computer Hacker |
8/28. The U.S.
Court of Appeals (2ndCir) issued its opinion
in USA
v. Harris. The Appeals Court wrote that Melissa
Harris "gained access to her employer's computer without
authorization in order to obtain the Social Security numbers
of individuals who were the targets of a credit card fraud
scheme." She plead guilty to one count of violating 18
U.S.C. § 1030(a)(2)(B). The District Court sentenced her
to three months in prison, three months of home detention,
ordered her to pay restitution in the amount of $435,895.15.
She appealed.
The Appeals Court vacated and remanded for resentencing. It
wrote that the record did not show that the District Court had
considered her ability to pay, which is one of the factors to
be considered by the court in ordering restitution, pursuant
to 18
U.S.C. § 3664(f)(2). |
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| 2nd Circuit Rules on
Copyrightable Subject Matter |
8/29. The U.S.
Court of Appeals (2ndCir) issued its opinion
in Sparaco
v. LMS, a copyright case. This appeal involves
whether a site plan for a building construction project is
protectable under copyright law. However, the Court's review
of the history and current state of the law regarding what
constitutes copyrightable subject matter may be of interest to
persons in the technology sector.
Background. Albert Sparaco is a land surveyor and
planner. He was retained to prepare a site plan for an
assisted living facility Rockland County, New York. He
completed the site plan, which included "(1) the location
and contour of the building footprint; (2) location and
contour of parking lots; (3) placement and design of curbs,
driveways, and walkways; (4) placement of utilities and
provision for sediment and erosion control; (5) landscape
design, including the location for plants, trees, and lights;
and (6) proposed changes to the contours and elevation of the
terrain". He obtained a certificate of copyright for the
site plan, having registered it as a "map" and
"technical drawing." Sparaco was then replaced, and
his site plan was copied, and used, with only minor
modifications.
District Court. Sparaco filed a complaint in U.S.
District Court (SDNY) against various defendants alleging,
among other things, creation of a derivative work in violation
of the Copyright Act. The District Court eventually dismissed
this claim. This appeal followed.
Appeals Court. The Court of Appeals vacated and
remanded. The Appeals Court first addressed the physical
characteristics of the site. It wrote that "Sparaco's
argument would have had considerable force at an earlier time
in the development of the copyright law. Since the eighteenth
century, the copyright statutes have explicitly named maps as
falling within their protection. ... Copyright's early
protection of factual information found justification in the
author's labor or ``sweat of the brow´´ in assembling and
creating a work. In 1845, Justice Story explained that the
maker of a map was protected against copying; another was free
to map the same region but was not free to copy information
set forth on the first map; he needed to rely on his own
labor, skill, and expense to make a second independently
conceived map."
"However, in its twentieth century development, copyright
law turned away from that view. Courts began to repudiate the
earlier notion that an author's labor in discovering facts
justified giving the author protection against the copying of
those facts."
The Appeals Court continued that "In Feist
Publications, Inc. v. Rural Telephone Service Company, 499
U.S. 340, 347-48 (1991), the Supreme Court further explained
that copyright protection can extend only to original
authorship, and that the publication of facts, regardless how
much effort was expended in discovering them, is not original
authorship. The facts set forth in an author's writing were
not created by an author's act of authorship, and are
therefore not protected by copyright. ... To the extent that
the site plan sets forth the existing physical characteristics
of the site, including its shape and dimensions, the grade
contours, and the location of existing elements, it sets forth
facts; copyright does not bar the copying of such facts."
In discussing Sparaco's proposals for improvements to the
site, the Appeals Court wrote that "It is a fundamental
principle of copyright law that ``[i]n no case does copyright
protection for an original work of authorship extend to any
idea, procedure, process, system, method of operation [or]
concept.´´ ... It is only if the copier has taken the
author's expression or realization of the idea that
infringement results. Where copying has occurred, the question
whether there has been infringement can thus turn on whether
the copying was only of the author's generalized ideas and
concepts or of the author's more precisely detailed
realization of those ideas." (Citations omitted.) |
|
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| 9th Circuit Reverses in
Trek Trademark Case |
9/6. The U.S.
Court of Appeals (9thCir) issued its opinion
[28 pages PDF] in Thane
v. Trek, a trademark case. The Appeals Court
reversed the District Court's summary judgment for Thane.
Background. Trek
Bicycle Corporation is a leading manufacturer of bicycles
and related products. In 1981, the USPTO granted Trek a
trademark for the use of "TREK" on bicycles and
bicycle frames. See, Trademark Registration No. 1168276. It
has also been awarded several other trademarks based on
variations of the word "trek". Trek has extensively
advertised its trademark. Trek also sponsors and supplies
bicycles to the professional bicycle racing team led by Lance Armstrong,
four time winner of the Tour de France.
Armstrong and his USPS
team have also won numerous other international bicycle
races riding Trek bicycles. Their jerseys
prominently display the Trek name. Armstrong presented a Trek
bicycle to the President at a White House ceremony. Trek also
makes stationary exercise cycles.
Thane International makes,
among other things, stationary exercise equipment, which it
markets via television infomercials. In addition to its Bun
and Thigh Isolator, it sells OrbiTrek
and OrbiTrek
Pro. Thane insists that the Trek portion of these names
comes, not from Trek bicycles, but from the Star Trek
television series.
Thane filed an application with the USPTO to register "ORBITREK"
for goods described as "stationary exercise
machines." Trek filed a Notice of Opposition with the
Trademark Trial and Appeal Board.
District Court. Thane filed a complaint with the U.S. District Court (CDCal)
seeking a declaration that it had not violated trademark laws
under the Lanham Act, state common law, or state statutory
law. Trek counterclaimed for trademark infringement pursuant
to 15 U.S.C. § 1114(1), false designation of origin pursuant
to 15 U.S.C. § 1125(a), and trademark dilution pursuant to 15
U.S.C. § 1125(c). Trek also plead various state law claims.
The District Court granted Thane's motion for summary judgment
and denied Trek's, holding that "any reasonable juror
would conclude that there is no likelihood of confusion
between Trek Bicycle Corporation's 'Trek' mark and Thane's 'OrbiTrek'
mark." This appeal followed.
Appeals Court. The Appeals Court reversed and remanded
as to all claims in which likelihood of confusion is an issue.
It held that "a reasonable jury could decide the
likelihood of confusion issue in favor of either party". |
|
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| NewCom Executives Indicted |
9/6. A grand jury of the U.S. District Court (CDCal)
returned a 36 count indictment against Sultan Warris Khan,
Asif Mohammad Khan, Steven Veen, and Alexander Remington,
alleging, among other things, securities fraud, making false
statements to the Securities and
Exchange Commission (SEC), and money laundering.
Three of the defendants were executives of NewCom, a computer
peripheral company that was based in Westlake Village,
California. Sultan Khan was its President, CEO and Chairman.
Asif Khan was its EVP. Veen was its CFO. Remington is the
owner of Micro Equipment Corporation, which distributes
computer parts and peripherals and was NewCom's main supplier.
See, USAO
release.
The SEC previously filed and settled a civil complaint against
NewCom, the Khans, and others. See, SEC
release. |
|
|
| People and Appointments |
9/6. Shellie Blakeney was named Legal Advisor to the
Tom Sugrue, Bureau Chief of the Federal Communications
Commission's (FCC) Wireless
Telecommunications Bureau. She has worked at the FCC since
1998. See, release
[PDF].
9/6. Tina Jonas was named the Federal Bureau of Investigation's
(FBI) Chief Financial Officer and Assistant Director, Finance
Division. See, FBI
release.
9/5. Rep. Chris Cox
(R-CA) named James Freeman his new Legislative
Director. Freeman is a former television news producer and USA
TODAY online columnist. Peter Uhlmann remains Chief of
Staff. See, Cox
release.
9/4. David
Brodsky, Laurie Smilan, and Michele Rose
joined the law firm of Latham
& Watkins. Brodsky, who has joined the firm's New York
City office, was previously Managing Director and General
Counsel -- Americas for Credit Suisse First Boston. Smilan,
who has joined the Northern Virginia office, was previously
the Co-Managing Partner of the Northern Virginia office of the
law firm of Wilson Sonsini.
Rose, who also has joined the Northern Virginia office, was
previously a partner at Wilson Sonsini. See, release.
8/31. Jane Barrett, Katherine Marelich, and Audra
Mori joined the Los Angeles office of the law firm of Piper Rudnick as
partners. All three previously worked in the Los Angeles
office of Preston Gates
& Ellis. Barrett focuses on intellectual property and
other matters. Marelich focuses on litigation involving
copyright, trademark, trade secret and unfair business
practices. Mori focuses on copyright and trademark. See, release. |
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| Monday, September 9 |
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 several non technology related
measures under suspension of the rules. See, Whip
Notice.
The Senate will meet at 12:00 NOON for morning business. At
1:00 PM the Senate will vote on confirming Kenneth Marra to be
a Judge of the U.S. District Court (SDFl). The Senate will
then resume consideration of HR 5005,
the Homeland Security Act. Sen. Fred Thompson
(R-TN) will be recognized to offer an amendment to strike
Titles II and III of the Sen. Joe Lieberman's
(D-CT) substitute amendment.
9:30 AM. The U.S.
Court of Appeals (DCCir) will hear oral argument in WorldCom
v. FCC, No. 01-1198. Judges Tatel, Garland and Williams
will preside. Location: Courtroom 20, 333 Constitution Ave.,
NW.
Day one of a two day conference on patent interference law,
hosted by the Intellectual
Property Owners Association (IPO). For more information,
call 202 466-2396. Location: Ronald Reagan International Trade
Center. |
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| Tuesday, September 10 |
The House will meet at 9:00 AM for morning hour and at 10:00
AM for legislative business. The House will consider HR 5011,
the Military Construction Appropriations Act for FY 2003, and HR 5010,
the Department of Defense Appropriations Act for FY 2003. See,
Whip
Notice.
The Senate is scheduled to consider HR 5093,
the Interior Appropriations bill, and to continue its
consideration of HR 5005,
the Homeland Security Bill.
9:30 AM. The U.S.
Court of Appeals (DCCir) will hear oral argument in AT&T
v. FCC, No. 01-1188. Judges Ginsburg, Sentelle and
Silberman will preside. Location: 333 Constitution Ave., NW.
10:00 AM. The House
Judiciary Committee will hold a meeting to mark up several
bills. The last item on the agenda is HR 4561,
the Federal Agency Protection of Privacy Act, sponsored
by Rep. Bob Barr
(R-GA). The bill would require federal agencies to the agency
shall prepare and make available for public comment an initial
privacy impact analysis when it proposes new regulations. This
item was held over from last week. Audio web cast. Location:
Room 2141, Rayburn Building.
10:00 AM. The Senate
Judiciary Committee will hold a hearing to examine the
implementation of the USA PATRIOT Act, focusing on the
expansion of the Foreign Intelligence Surveillance Act
(FISA). Location: Room 226, Dirksen Building.
12:00 NOON. The FCBA's
Engineering and Technical Practice Committee will host a brown
bag lunch titled "Spectrum Management Reform:
Preliminary Perspectives". The scheduled speakers are
Paul Kolodzy (FCC Senior Spectrum Policy Advisor) and Mike
Gallagher (NTIA).
RSVP to Lisa Gaisford.
Location: FCC, 445 12th St., SW, Courtyard Level, Conference
Rooms B418 & B511.
12:00 NOON. Deadline to submit written comments to the Office
of the USTR in response to its
notice
in the Federal Register requesting comments on China's
compliance with the commitments it made in connection with its
accession to the World Trade
Organization (WTO).
Day two of a two day conference on patent interference law,
hosted by the Intellectual
Property Owners Association (IPO). For more information,
call 202 466-2396. Location: Ronald Reagan International Trade
Center.
The Intellectual Property Owners
Association (IPO) Board of Directors will hold a meeting. |
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| Wednesday, September 11 |
Anniversary of the terrorist attacks of September 11, 2001.
The House will meet at 12:00 NOON for legislative business. No
votes are expected before 5:00 PM. The House will consider The
Patriot Day Resolution. |
|
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| Thursday, September 12 |
The House will meet at 10:00 AM for legislative business.
The House is scheduled to consider HR 5193,
the Back to School Tax Relief Act of 2002.
8:00 AM - 5:30 PM. Day one of a two day conference hosted by
the International Intellectual
Property Institute (IIPI) titled "Specialized
Intellectual Property Courts". See, IIPI
release and online
registration form. Location: George Washington University
Law School, Moot Court Room, 2000 H Street, NW.
9:30 AM. The FCC will hold a
meeting. The FCC will consider a Notice of Proposed Rulemaking
(NPRM) concerning its media ownership rules, pursuant
to Section 202(h) of the Telecommunications Act of 1996. It
will also consider a NPRM and Memorandum Opinion and Order
concerning possible revisions to the rules on unsolicited
advertising over the telephone and facsimile machine and the
possible establishment of a national do not call list.
This is CC Docket No. 92-90. Location: FCC, 445 12th Street,
SW, Room TW-C05 (Commission Meeting Room).
10:00 AM. Federal
Reserve Board Chairman Alan
Greenspan will testify to the House Budget Committee.
Location: Room 210, Cannon Building.
10:00 AM. The House
Judiciary Committee's Subcommittee on the Constitution
will hold an oversight hearing titled "Privacy
Concerns Raised by the Collection and Use of Genetic
Information by Employers and Insurers". Audio web
cast. Location: Room 2237, Rayburn Building.
2:30 PM. The Senate
Commerce Committee's Subcommittee on Science, Technology,
and Space Subcommittee will hold a hearing to examine S 2537,
the Dot Kids Implementation and Efficiency Act of 2002, and HR 2417,
the Dot Kids Domain Name Act of 2001. These bills would
facilitate the creation of a new second level Internet domain
within the U.S. country code domain that would provide a safe
online environment for children. The House has already passed
another version -- HR 3833.
Location: Room 253, Russell Building.
Deadline to submit comments to the FCC regarding WorldCom's August 8, 2002,
petition for a declaratory ruling pursuant to 47 C.F.R.§ 1.2,
that requesting carriers are entitled to access ILEC Line
Information Database data at cost based rates when they use
such data to provide interexchange and exchange access
service. This is CC Docket No. 01-338. See, FCC
notice [PDF]. |
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| Friday, September 13 |
The House will meet at 9:00 AM for legislative business. No
votes are expected past 2:00 PM.
9:00 AM - 5:00 PM. Day two of a two day conference hosted by
the International Intellectual
Property Institute (IIPI) titled "Specialized
Intellectual Property Courts". See, IIPI
release and online
registration form. Location: Markey National Courts Bldg.,
717 Madison Place, NW.
10:45 AM. Press conference associated with the International Intellectual
Property Institute's (IIPI) conference titled "Specialized
Intellectual Property Courts". Location: Court Room
203, Markey National Courts Bldg., 717 Madison Place, NW.
10:00 AM. The FCC's Network Reliability and
Interoperability Council (NRIC) will hold a meeting.
Location: FCC, 445 12th Street, SW, Commission Meeting Room.
Deadline to submit comments to the FTC
regarding its proposed consent agreement with MSC Software Corporation.
See, Agreement
Containing Consent Order [22 pages PDF]. See, notice
in Federal Register. |
|
|
| More News |
| 9/4. Sen. William Frist
(R-TN) and Sen. Pat
Roberts (R-KS) introduced S
2902, the Mathematics and Science Education Excellence
Act. The bill would create a grant program to promote
mathematics and science education. It was referred to the
Senate Committee on Health, Education, Labor, and Pensions. |
|
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