9th Circuit Rules in US West v.
Jennings |
9/23. The
U.S. Court of Appeals (9thCir) issued its
opinion [24 pages in PDF] in
US West v. Jennings, an appeal from a ruling of the
District Court regarding various interconnection agreements between
an ILEC and CLECs arbitrated by a state PUC. The Appeals Court
affirmed in part and reversed in part.
Background. US West (now
Qwest) is the incumbent local exchange carrier (ILEC) in the
state of Arizona. Following passage of the Telecommunications Act of
1996, US West failed to negotiate interconnection agreements with
competitive local exchange carriers (CLECs) operating in Arizona. It
petitioned the Arizona
Corporations Commission, which is the public utilities
commission (PUC) in Arizona, to arbitrate. The ACC arbitrated
various interconnection agreements.
District Court. Various lawsuits were then filed in
U.S. District Court (DAriz) challenging these agreements. These
lawsuits were consolidated. The District Court affirmed some
provisions of the various interconnection agreements, and rejected
others.
Appeals Court. These consolidated appeals followed. The
Appeals Court affirmed in part and reversed in part. This appeal
raised the questions of whether the terms of the interconnection
agreements are consistent with the 1996 Act, and whether
Federal Communications Commission
(FCC) regulations that took effect after the ACC's decisions are
applicable. Appeals Court held that the FCC regulations are
applicable, thus reversing the District Court on this issue. The
Appeals Court then went on to apply those regulations to the
provisions of the interconnection agreements, including provisions
pertaining to: cable sheath mileage; four wire loop price;
geographic deaveraging; conditions on access to subloops; reciprocal
access to poles, ducts, conduits, and rights of way; collocation of
remote switching units; single points of access; tandem switch
rates; conditions on resale of centrex services; non-recurring
charges for unbundled network elements; and conditions on access to
dark fiber. |
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Microsoft Meets with FCC Re
Broadband Regulation |
9/20. Representatives of
Microsoft held two meeting with senior
Federal Communications Commission
(FCC) officials regarding regulatory classification and treatment of
high speed Internet access services via cable and wireline
facilities. Microsoft stated in a
disclosure letter [PDF] to the FCC that "the Microsoft
participants discussed the need for the Commission, regardless of
the statutory classification applied to broadband services, to adopt
the safeguards embodied in the connectivity principles presented by
the High Tech Broadband Coalition ..."
The HTBC has filed numerous comments with the FCC in various FCC
proceedings which pertain to broadband regulation. See for example,
July 1, 2002 comments [PDF],
April 7,
2002 comments [PDF],
June 17, 2002
comments [PDF],
July 17, 2002 comments of the HTBC.
Microsoft further stated in its letter that "The content,
applications and devices that have proliferated as the Internet has
become a mass market medium have proliferated in large measure
because innovators have been able to rely on the fact that, in the
dial-up world, the provider of the underlying facility does not --
and indeed cannot -- discriminate against the types of information
traversing its system or the devices that are attached to that
system." Microsoft added that "it is not clear that those norms --
and thus the benefits that flow from them -- will prevail in the
broadband world envisioned by the Commission's NPRMs."
Microsoft was represented at the meetings by their counsel, Scott
Harris of the law firm of
Harris Wiltshire & Grannis, and by Craig Mundie, Marc Berejka
and Pierre De Vries of Microsoft. They met with Bill Maher (the new
Chief of the FCC's Wireline
Competition Bureau), Jeffrey Carlisle (Senior Deputy Bureau
Chief), Scott Bergmann (Legal Counsel), Jessica Rosenworcel (Legal
Counsel), Jane Jackson (Associate Bureau Chief), Michelle Carey, and
Brent Olson. They also met separately with Ken Ferree (Chief of the
FCC's Media Bureau), Deborah
Klein (Chief of Staff), Bill Johnson (Deputy Bureau Chief), Barbara
Esbin (Associate Bureau Chief), Peggy Greene (Associate Bureau
Chief), Eric Bash and John Norton.
The letter referenced several open FCC proceedings, GN Docket No.
00-185, CS Docket No. 02-52, CC Docket No. 02-33, and CC Docket Nos.
95-20 and 98-10. |
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GAO Releases Report on Internet
Gambling Funding |
9/23. The General Accounting
Office (GAO) released a
report [22
pages in PDF] titled "Interim Report on Internet Gambling". It
reviews current law at the federal level, and in five states
(Massachusetts, Nevada, New Jersey, New York, and Utah). It also
reviews the structure and operation of the credit card industry, and
how illegal gambling on the Internet could be affected by
prohibiting the use of credit cards in gambling. Finally, the report
reviews the vulnerability of Internet gambling to money laundering.
The report was prepared for
Rep. Mike Oxley (R-OH), Chairman of the
House Financial
Services Committee (HFSC),
Rep. John LaFalce
(D-NY), ranking Democrat on the HFSC,
Rep. Spencer Bachus
(R-AL), Chairman of the Subcommittee on Financial Institutions and
Consumer Credit, and Rep.
Sue Kelly (R-NY), Chairman of the Subcommittee on Oversight and
Investigation. This Committee has jurisdiction over Internet
gambling to the extent that financial instruments are involved.
HR 556, which is sponsored by
Rep. Jim Leach (R-IA), and
HR 2579, the Internet Gambling Payments Prohibition Act, which
is sponsored by Rep. John
LaFalce (D-NY), both attempt to stop illegal gambling over the
Internet by prohibiting the use of certain financial instruments,
including credit extended via a credit card, electronic fund
transfers, and checks.
The HFSC amended and approved HR 556 on October 31, 2001. See,
story titled "House Committee Passes Internet Gambling Funding Bill"
in TLJ
Daily E-Mail Alert No. 299, November 1, 2001. The GAO report
states that "In your letter dated September 10, 2002, you noted
plans to bring H.R.556, the Unlawful Internet Gambling Funding
Prohibition Act, to the House floor for debate later this month."
The GAO labeled this report an "interim report". It added that it
will complete a "final report" in November 2002. This will be after
the 107th Congress has completed its work, unless there is a lame
duck special session after the November elections. |
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Technology Administration
Releases Report on Broadband Demand |
9/23. The Commerce Department's
Technology Administration released a
report [23 pages in PDF] titled "Understanding Broadband Demand:
A Review of Critical Issues". The report argues that widespread
broadband deployment will bring many social benefits, and that
federal, state and local government entities should work to promote
broadband. This report focuses on "demand side" issues.
The report is based on the premise that an analysis of government
policy with respect to promotion of broadband deployment is
divisible into two sets of issues -- supply side issues, and demand
side issues.
The report states that "many nations, states, cities and
communities are trying to accelerate the deployment and usage of
broadband networks. To date, these efforts have predominantly
focused on the supply side -- promoting infrastructure build-out and
determining appropriate competition and regulatory policies."
However, the report continues, "It is also important and appropriate
to consider the demand side -- factors impacting business and
consumer uptake."
The report notes that the Federal
Communications Commission (FCC) and
National Telecommunications and
Information Administration (NTIA) are focused on supply side
issues, while the
President's Council of Advisers on Science & Technology (PCAST)
and the Technology Administration are focused on demand side issues.
The TA report continues that "There are several factors that
impact the robustness of demand. For consumers these include
concerns over cost; disappointment with the quality and types of
content available, especially lack of movies, music and local
information; inadequate customer support and lack of plug and play
consumer premises equipment; and lack of confidence in the Internet
due to security and privacy concerns. For businesses, barriers to
greater broadband demand stem from price concerns (exacerbated by
economic uncertainty); lack of access to DSL or cable; failure to
perceive the returns on investment in broadband; lack of
understanding about how to implement broadband business solutions
that make sense for company strategy; and concerns over security and
other legal uncertainties." (Parentheses in original.)
The report argues that "federal, state and local leaders can take
steps to accelerate broadband demand ... actions to accelerate
demand are justified and valuable."
The report identifies four things that determine demand for
broadband: cost, content, convenience and confidence.
The report then lists and discusses several things government can
do to impact demand. The federal government should support business
investment in broadband equipment, support R&D new applications and
technologies, create compelling content and leading by example,
protect intellectual property, oppose taxation of new content and
online services, promote efficient and broadband friendly management
of radio spectrum, and promote consumer confidence and cyber
security, ensure free flow of goods, services and ideas online.
With respect to intellectual property rights, the report states
that "governments can take several steps to strengthen the
intellectual property rights framework. By prosecuting clear
violations of law, educating citizens and students to respect IPR in
the digital medium, protecting consumers’ interests (such as fair
use rights), and encouraging market players to cooperate and
coordinate, the federal government hopes to increase the pace with
which movies and music venture online." (Parentheses in original.)
The TA report also states that state and local government should
consider "bandwidth when addressing issues such as rights of way,
taxes and application fees, tower siting, zoning, building and
construction codes, building access, franchise agreements, historic
preservation and environmental protections." |
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More News |
9/23. The Federal Communications
Commission (FCC) released a
Notice
of Apparent Liability for Forfeiture in a proceeding titled "In
the matter of One Call Communications, Inc. d/b/a Opticom", in which
it proposed to assess a forfeiture in the amount of $5,120,000
against Opticom for widespread violations of the FCC's rules
governing operator service providers (OSPs). The FCC stated that
these rules require OSPs "to identify itself audibly and distinctly
at the beginning of each call, before the consumer incurs any
charge; to permit the consumer to terminate the call at no charge
before it is connected; to provide its rates to consumers upon
request; and to provide instructions to the consumer on how to
obtain the total cost of the call, which must be available either by
dialing no more than two digits or by remaining on the line." The
FCC further detailed 64 of Opticom's violation of these rules. See
also,
FCC
release.
9/23. The Federal Communications
Commission (FCC) released a second
Notice
of Apparent Liability for Forfeiture in a proceeding titled "In
the matter of ASC Telecom, Inc. d/b/a Alternatel", in which it
proposed to assess a forfeiture of $1,440,000 for 16 violations of
its OSP rules.
9/23. The Commerce Department's
Bureau of Industry and Security (formerly known as the Bureau of
Export Administration) published a
notice in the Federal Register containing its final rule
amending the Export Administration Regulations (EAR) to provide
which "space qualified'' items and telecommunications items for use
on board satellites are controlled on the Commerce Control List (CCL)
and are therefore subject to the EAR. This rule also removes the
License Exception eligibility and amends the CCL for certain "space
qualified'' items. See, Federal Register, September 23, 2002, Vol.
67, No. 184, at Pages 59721 - 59733.
9/23. Securities and Exchange
Commission (SEC) Chairman
Harvey Pitt
gave a speech
to the Council of Institutional Investors' Fall Conference in New
York, New York. He also gave a
speech at
the September Symposium On Corporate Governance and Accounting
Reform in Washington DC on September 20.
9/23. The Department of Justice
(DOJ) issued a
release in which it stated that the DOJ announced "three new
guidelines designed to institutionalize the ongoing sharing of
information between federal law enforcement and the U.S.
intelligence community". |
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About Tech Law Journal |
Tech Law Journal publishes a free access web site and
subscription e-mail alert. The basic rate for a subscription to the
TLJ Daily E-Mail Alert is $250 per year. However, there are
discounts for entities with multiple subscribers. Free one month
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available for law students, journalists, elected officials, and
employees of the Congress, courts, and executive branch, and state
officials. The TLJ web site is free access. However, copies of the
TLJ Daily E-Mail Alert and news items are not published in the web
site until one month after writing. See,
subscription information page.
Contact: 202-364-8882;
E-mail.
P.O. Box 4851, Washington DC, 20008.
Privacy
Policy
Notices &
Disclaimers
Copyright 1998 - 2002 David Carney, dba Tech Law Journal. All rights
reserved. |
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Tuesday, September 24 |
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 non tech related measures under
suspension of the rules. See,
Whip Notice.
Day two of a three day conference and exhibit titled "Biometric
Consortium Conference (BC2002)". The conference is sponsored by the
NIST's Information Technology Laboratory (ITL) and the Advanced
Technology Program (ATP), the
NSA,
the DOD's Biometrics Management Office, the
GSA, the Federal Technology Service (FTS) Center for Smart Card
Solutions, and the state of West Virginia. The price to attend is
$260. See,
conference web site and
agenda. Location: Hyatt Regency Crystal City, Arlington, VA.
9:00 AM. The House
Commerce Committee's Subcommittee on Commerce, Trade, and
Consumer Protection will hold a hearing on
HR
4678, the Consumer Privacy Protection Act of 2002,
sponsored by Rep. Cliff
Stearns (R-FL). The scheduled witnesses include John Palafoutas
(AeA), Philip Servidea (NCR, on behalf of the Computer Systems
Policy Project), John Schall (National Business Coalition on
E-Commerce and Privacy), and Rebecca Whitener (EDS Security &
Privacy Services). Web cast.
Location: Room 2322, Rayburn Building.
10:00 AM. The House
Commerce Committee's Subcommittee on Oversight and
Investigations will hold a hearing titled "Capacity Swaps by
Global Crossing and Qwest: Sham Transactions Designed to Boost
Revenues?" See,
notice. The scheduled witnesses include Patrick Joggerst
(formerly with Global Crossing), Roy Olofson (formerly with Global
Crossing), Robin Szeliga (Qwest Communications), Jackie Armstrong
(Global Crossing), Robin Wright (formerly with Global Crossing),
Greg Casey (formerly with Qwest), Susan Chase (Qwest), Kym Smiley
(formerly with Qwest), and Ken Floyd (FLAG Telecom). Web cast. Press
contact: Ken Johnson or Arturo Silva at 202 225-5735. Location: Room
2123, Rayburn Building.
10:00 AM. The Senate
Judiciary Committee's Subcommittee on Judiciary Administrative
Oversight and the Courts will hold a hearing titled "The DC
Circuit: The Importance of Balance on the Nation's Second Highest
Court". The scheduled witnesses include Abner Mikva (former
Judge of the DC Circuit), Fred Fielding (Wiley Rein & Fielding),
Christopher Schroeder (Duke University School of Law), Brad Clark
(GWU Law School), and Michael Gottesman (Georgetown University Law
Center). See,
notice.
Sen. Charles Schumer (D-NY)
will preside. Press contact: Mimi Devlin at 202 224-9437. Location:
Room 226, Dirksen Building.
11:00 AM. The Cato Institute
will host a policy forum titled "Digital Pearl Harbor: How Real
Is the Cybersecurity Threat, and Who's Responsible Anyway?" The
scheduled speakers include Howard Schmidt (Federal Office of
Cybersecurity), Ken Silva (Verisign),
Ira Parker (Genuity), and Scott Charney (Microsoft). See,
notice and online
registration page. Lunch will follow the program. Location:
Cato, 1000 Massachusetts Ave., NW.
12:15 PM. The
FCBA's Young Lawyers Committee will host a brown bag lunch to
"discuss FCC's recent order mandating that consumer electronics
manufacturers install digital television tuners in almost all new
TVs, as well as TV interface devices such as VCRs". The scheduled
speakers are Lynn Claudy (NAB),
Michael Petricone (CEA),
and Valerie Schulte (NAB). RSVP to Ryan Wallach at
rwallach @willkie.com.
Location: Willkie Farr & Gallagher,
1875 K Street, NW.
CLOSED TO THE PUBLIC. 5:30
PM. Meeting of a legislative executive working group on the Foreign
Sales Corporation (FSC) and Extraterritorial Income Exclusion Act (ETI)
issue. Location: Room 211, Dirksen Building.
Deadline to submit opposition comments to the
Copyright Office (CO)
regarding the motion for stay filed by various broadcasters of the
CO's final rule that provides that transmissions of a broadcast
signal over a digital communications network are not exempt from
copyright liability under
17 U.S.C. §
114(d)(1)(A). See,
notice in the Federal Register. |
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Wednesday, September 25 |
The House will meet at 10:00 AM for legislative business. The
House will consider several non tech related bills. See,
Whip Notice.
Day three of a three day conference and exhibit titled "Biometric
Consortium Conference (BC2002)". See,
conference web site and
agenda.
8:30 AM - 12:00 NOON. The
FCC's North American Numbering Council will meet. Location: FCC,
445 12th Street, SW, Room TW-C305.
LOCATION CHANGE. 10:00 AM.
The House Commerce
Committee's Subcommittee on Telecommunications and the Internet
will hold a hearing on the transition to digital television.
See,
draft of proposed bill [16 pages in PDF] and
summary of draft bill. Web cast. Press contact: Ken Johnson or
Jon Tripp at 202 225-5735. Location: Room 2322, Rayburn Building.
10:00 AM. The House Financial Services Committee's Subcommittee
on Financial Institutions will hold a hearing on HR 5414, the Check
Clearing for the 21st Century Act. Location: Room 2128, Rayburn
Building.
12:15 PM. The
FCBA's Online Communications Committee will host a brown bag
lunch. The topic will be the Bush Administration's just released
report titled "National Strategy to Secure Cyberspace". The
speakers will be
John Tritak
(Director, Critical Infrastructure
Assurance Office) and Tom Orlowski (VP of Information Systems,
NAM). RSVP to bviera @kelleydrye.com.
Location: Kelley Drye & Warren,
1200 19th St., Suite 500.
12:30 PM. The House
Judiciary Committee's Subcommittee on Commercial and
Administrative Law will hold a legislative hearing on
HR
4869, the "Satellite Radio Freedom Act", and HR __, a bill to
provide an exemption from local taxation for direct to subscriber
satellite service providers. Location: Room 2141, Rayburn Building. |
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Thursday, September 26 |
The House will meet at 10:00 AM for legislative business. The
House will consider several non tech related bills. See,
Whip Notice.
TIME CHANGE. 9:00 AM. The
House Judiciary Committee's
Subcommittee on Court, the Internet and Intellectual Property will
hold a hearing on
HR 5211, sponsored by
Rep. Howard Berman (D-CA). The bill is sometimes referred to as
the "peer to peer piracy protection act" or the "Berman bill". The
witnesses include Hilary Rosen (RIAA),
Randy Saath (Media Defender), Phil Galdston (songwriter), Gigi Sohn
(Public Knowledge).
Location: Room 2141, Rayburn Building.
10:00 AM. The House
Commerce Committee's Subcommittee on Commerce, Trade and
Consumer Protection will hold a hearing titled "State Impediments
to E-Commerce: Consumer Protection or Veiled Protectionism?"
Rep. Cliff Stearns
(R-FL) will preside. Press contact: Ken Johnson or Jon Tripp at 202
225-5735. Location: Room 2322, Rayburn Building.
10:00 AM. The Senate
Judiciary Committee will hold a hearing to examine pending
judicial nominations. Sen.
Charles Schumer (D-NY) will preside. See,
notice.
Press contact: Mimi Devlin at 202 224-9437. Location: Room 106,
Dirksen Building.
10:00 AM. The Senate Health, Education, Labor, and Pensions
Committee will hold a hearings on web based education.
Location: Room 430, Dirksen Building.
12:00 NOON. The
FCBA will host a lunch. The speaker will be Duane Ackerman, CEO
of BellSouth. The price to
attend is $45 for members, $35 for government persons and law
student members, and $55 for non-members. Registrations and
cancellations are due by 5:00 PM on September 23. Location:
Mayflower Hotel, 1127 Connecticut Ave., NW, State Ballroom.
3:00 PM.
Niva Koren (University of Haifa Faculty of Law) will present at
paper titled "Seizing Power in the Information Environment: The
Comeback of the State", as a part of the
George Washington University Law
School Intellectual Property Workshop Series. For more
information, contact
Prof.
Robert Brauneis at 202 994-6138. Location: Clinic Moot Court
Room H 105, 716 20th Street, NW. |
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Friday, September 27 |
The House will not meet.
7:30 - 9:30 AM. The U.S.
Chamber of Commerce will host a breakfast and panel discussion
for technology professionals titled "Partnering Insights for
Challenging Times". The scheduled speakers are Patrick Sweeney (ServerVault),
Shane Oleson (Keymind division of
Axiom
Resources Management), Tim Grimes (Siemens
Enterprise Networks), and Val Sriban (META
Group). See,
notice and
registration page. The price to attend is $35 for the general
public, and $25 for members of Partnerpoint, the U.S. Chamber, and
co-sponsoring organizations. Location: U.S. Chamber of Commerce,
1615 H Street, NW.
TIME? The Federal Accounting Standards Advisory Board (FASAB)
will meet to discuss issues related inter-entity costs, the Credit
Reform Task Force, and other matters. See,
notice in Federal Register. Location: Room 2N30, GAO Building.
Deadline to submit reply comments to the
FCC regarding WorldCom's
August 8, 2002, petition for 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].
Deadline to submit reply comments to the
Copyright Office (CO)
regarding the motion for stay filed by various broadcasters of the
CO's final rule that provides that transmissions of a broadcast
signal over a digital communications network are not exempt from
copyright liability under
17 U.S.C. §
114(d)(1)(A). See,
notice in the Federal Register. |
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Monday, September 30 |
9:00 AM - 4:30 PM. The
President's Council
of Advisors on Science and Technology (PCAST) will hold an open
meeting. The agenda includes: the science and technology of
combating terrorism, federal investment in science and technology
research and development, and "demand issues that can speed the
deployment of a 21st Century broadband infrastructure". See,
notice in the Federal Register for pre-clearance requirements
and other information. Location: Loy Henderson Conference Room,
Department of State, 2201 C St., NW. Guests must use the 23rd Street
entrance.
Third of three deadlines to submit proposals to the
NIST for FY 2002 Advanced
Technology Program (ATP) funds. See,
notice in Federal Register.
Deadline to submit comments to the
FCC in response to it
Public Notice [7 pages in PDF] regarding relief for the Auction
No. 35 winners. The FCC asks for public comments regarding two
possible scenarios for providing relief to the winning bidders in
the January 2001 re-auction of spectrum previously auctioned to
NextWave: full refund and option to dismiss all pending
applications, and selective opt out for pending applications.
Deadline to submit comments and Notices of Intention to
Participate to the Copyright
Office "royalty fees collected for calendar year 2000 under the
section 111 cable statutory license". The CO seeks comments "as to
whether a Phase I or Phase II controversy exists as to the
distribution of those fees, and a Notice of Intention to Participate
in a royalty distribution proceeding." See,
notice in the Federal Register.
Deadline to submit comments and proposals to the
Copyright Office (CO)
regarding data format and delivery for record keeping requirements
to be established by the CO for the Section
112 and
114
statutory licenses. See,
notice [8 pages in PDF]. |
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