The group of twenty wrote that "it has come to our attention that the Commission may be considering proposals to limit the access of competitive broadband providers to essential last mile monopoly facilities. We have grave concerns about the effects of such proposals on competition in the residential DSL market."

They stated that the FCC is "re-writing the 1996 Act by administrative fiat", and instead asked the FCC to "ensure that competitors have access to the telephone network". They urged the FCC "not to make any final decision in the UNE Triennial Review or Wireline Broadband proceedings until Congress has a sufficient opportunity to consider the impact of the pending proposals on consumers and competition."

Triennial Review. This is Docket No. 01-338. The FCC adopted this NPRM [62 pages in PDF] at its December 12, 2001 meeting. See also, December 12, 2001 release and notice in the Federal Register.

The FCC wrote on December 12 that unbundled network elements (UNEs) "are the portions of the phone networks that incumbent local exchange carriers (LECs) must make available to competing carriers seeking to provide telecommunications services. Recognizing that incumbent LECs control some bottleneck facilities, Congress adopted section 251 of the 1996 Act to overcome the obstacles posed by that control."

The FCC wrote that "Specifically, the FCC will examine the framework under which incumbent LECs must make UNEs available to competing carriers. The Commission's action seeks to ensure that its regulatory framework reflects recent technological advances and marketplace developments and to remain current and faithful to the pro-competitive, market opening provisions of the Telecommunications Act of 1996."

The FCC further elaborated in it NPRM that "In 1996, the Commission first applied the statute and determined which network elements need to be unbundled to permit requesting carriers to compete. Then, in 1999, the Commission revisited its unbundling analysis, on remand from the Supreme Court. Recognizing that market conditions would change and create a need for commensurate changes to the unbundling rules, the Commission determined to revisit its unbundling rules in three years -- a schedule we adhere to by adopting this Notice of Proposed Rulemaking (NPRM) today. In this review, we undertake a comprehensive evaluation of our unbundling rules. We seek to ensure that our regulatory framework remains current and faithful to the pro-competitive, market-opening provisions of the 1996 Act in light of our experience over the last two years, advances in technology, and other developments in the markets for telecommunications services." (Footnotes omitted.)

Wireline Broadband NRPM. This is Docket 02-33. The FCC adopted this NPRM [58 pages in PDF] at its February 14, 2002 meeting. See also, FCC notice in the Federal Register. This NPRM pertains to the appropriate regulatory framework for broadband access to the Internet over wireline facilities.

This NPRM states that "we examine the appropriate classification for wireline broadband Internet access service. As discussed more fully below, we tentatively conclude that, as a matter of statutory interpretation, the provision of wireline broadband Internet access service is an information service. In addition, we tentatively conclude that when an entity provides wireline broadband Internet access service over its own transmission facilities, this service, too, is an information service under the Act. In addition, we tentatively conclude that the transmission component of retail wireline broadband Internet access service provided over an entity’s own facilities is ``telecommunications´´ and not a ``telecommunications service.´´ We seek comment on these tentative conclusions and ask additional questions with regard to the proper classification of wireline broadband Internet access service."

Congressional Letter. The letter's lead signatories are Rep. John Conyers (D-MI) (at right), the ranking Democrat on the House Judiciary Committee, and Rep. Tom Davis (R-VA), the new Chairman of the House Government Reform Committee.

Eleven other signatories are members of the House Commerce Committee, which has jurisdiction over telecommunications matters: Henry Waxman (D-CA), Ed Markey (D-MA), Bart Stupak (D-MI), Anna Eshoo (D-CA), Sherrod Brown (D-OH), Frank Pallone (D-NJ), Karen McCarthy (D-MO), Diana DeGette (D-CO), Lois Capps (D-CA), Peter Deutsch (D-FL), and Jane Harman (D-CA). However, this is still a small minority of the Committee's membership.

Five other signatories are members of the House Judiciary Committee: Chris Cannon (R-UT), Jerrold Nadler (D-NY), Ric Keller (R-FL), Zoe Lofgren (D-CA), and William Delahunt (D-MA).

Frank Wolf (R-VA) and Tom Osborne (R-NE) also signed the letter.

The letter summarizes arguments that have been advanced by independent internet service providers (ISPs), competitive local exchange carriers (CLECs), interexchange carriers (IXCs), state regulators, and consumer groups.

The letter states, for example, that "Independent ISPs are concerned that the FCC's proposals will prevent them from providing broadband services. Under the current rules, the Bell Companies cannot discriminate between their own ISPs and independent ISPs -- the Bells must give independent ISPs the same quality of access to the network at the same price that they give to themselves. One of the FCC's proposals would allow the Bell Companies to discriminate in favor of their own ISP and deny access to the independent ISPs for broadband services. This could put thousands of independent ISPs out of business and give the Bell Companies an enormous advantage in the broadband marketplace."

The letter also states that "State regulators are concerned that the FCC is proposing to preempt state regulators' authority to ensure that their consumers have affordable phone rates. State commissions have utilized the UNE-P framework as the basis for assessing whether the Bell Companies have opened their networks sufficiently to competition, to qualify for entry into the long distance market."

The complaint states that "This is an action arising from Defendants' systematic and wholesale infringement of Cisco's intellectual property. Huawei, a Chinese company, and its wholly owned United States subsidiaries, Huawei America and FutureWei, manufacture and offer for sale a line of network routers designed to compete with Cisco's network routers. Unlike Cisco, however, which invested substantially in the development of its own proprietary router technology and software, Huawei has chosen to misappropriate and infringe Cisco's intellectual property in an attempt to develop a cheaper, inferior router which Huawei claims is compatible with Cisco's routers. In doing so, Huawei and its U.S. subsidiaries have shown a complete disregard for Cisco's intellectual property rights and the laws which protect those rights. The extent of Defendants' copying and misappropriation of Cisco's intellectual property is staggering. Defendants have copied Cisco's patented technologies; they have copied the copyrighted user interface for Cisco's routers; they have made verbatim copies of whole portions of Cisco's user manuals; and there is overwhelming evidence that they unlawfully gained access to Cisco's source code and copied it as the basis for the operating system for their knock-off routers. Cisco brings this action to enjoin this wholesale theft of its valuable intellectual property and recover the substantial damages it has incurred from Defendants' illegal conduct."

Count One alleges patent infringement of U.S. Patent No. 5,088,032, titled "Method and Apparatus for Routing Communications Among Computer Networks". Count Two alleges infringement of U.S. Patent No. 5,473,599, titled Standby Router Protocol". Count Three alleges infringement of U.S. Patent No. 5,519,704, titled "Reliable Transport Protocol for Internetwork Routing". Count Four alleges infringement of U.S. Patent No. 6,097,718 titled "Snapshop Routing with Route Aging". Count Five alleges infringement of U.S. Patent No. 6,327,251 titled "Snapshot Routing".

Count Six alleges infringement of Cisco's copyrights in its Internetwork Operating System (IOS) Software Programs and its Command Line Interface (CLI). Count Seven alleges infringement of Cisco's copyright in its IOS Manuals.

Count Eight alleges trade secret misappropriation. Specifically, Cisco alleges misappropriation of the source code of its IOS Software Programs. Count Nine alleges common law misappropriation regarding the CLI.

Count Ten alleges violation of the Lanham Act. The complaint states that "Defendants have represented to customers and prospective customers that their Quidway routers are interoperable with Cisco routers without any loss of performance, security or convenience. Such representations constitute a false and misleading characterization of the qualities and characteristics of Defendants' products in violation of Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a)."

Count Eleven alleges unfair competition under Texas common law and the Lanham Act, Section 44. Count Twelve alleges conversion -- that is, obtaining computer files with Cisco code, and using it in a manner inconsistent with Cisco's rights.

Cisco seeks declarations of infringement of its patents and copyrights, injunctive relief, damages, and other relief.

Cisco, which is based in the Northern District of California, filed the complaint in the Eastern District of Texas. the complaint alleges that Huawei is PR China company, and that FutureWei, its wholly owned subsidiary, is a Texas corporation based in Plano, with offices in San Jose, California, and Reston, Virginia. Plano is in the Eastern District of Texas. The complaint lists Cisco's counsel as the Dallas based law firm of McKool Smith. The law firm of Orrick Herrington Sutcliffe is listed as of counsel.

The indictment alleges that Marticardi, a former Executive Director of the Republican Party of Virginia (RPV), obtained the call in number and access code for Democratic Party conference calls, used his phone at the RPV to listen in without disclosing his presence, and then disclosed the contents of the conference calls to others. The Democratic Party's e-mail notice of the conference calls included the statement, "Due to the sensitive nature of the meeting, and attorney client privilege, only General Assembly members should attend or participate."

Section 2511 provides, in part, that "(1) ... any person who ... (a) intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication ... shall be punished as provided in subsection (4) ..." Section 2510, in turn, defines "intercept" as "the aural or other acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device."

The indictment alleges, in part, that Matricardi "did knowingly, intentionally, and unlawfully intercept and endeavor to intercept a wire communication, in that, using his telephone at RPV Headquarters in Richmond, Virginia, he used the access code and called in to an interstate conference call of the members of the Democratic Party of Virginia, and, without disclosing that he was on the line, secretly listened for approximately two and one-half hours and recorded the call on a tape recorder." See also, USAO release [PDF].

1/23. Nortel Networks and Ciena announced that they have entered into a settlement agreement to resolve the pending lawsuit filed by Nortel in U.S. District Court (EDTex) against ONI Systems (which has been acquired by Ciena) alleging patent infringement and misappropriation of trade secrets. Nortel and Ciena stated that Nortel has granted Ciena a license in U.S. Patent No. 6,084,694 titled "WDM optical network with passive pass through at each node", and U.S. Patent No. 6,493,117 titled WDM optical network with passive pass through at each node". The parties also stated that Ciena will make a payment to Nortel of $25 Million. See, Nortel release, and substantially identical Ciena release.

The Senate will not meet.

The Supreme Court will be in recess from January 27 through February 23.

12:30 PM. Rep. Nancy Pelosi (D-CA) and Sen. Tom Daschle (D-SD) will speak at a luncheon. Location: National Press Club, 529 14th St. NW, 13th Floor.

12:00 NOON. The National Association of State Utility Consumer Advocates (NASUCA) will release a report pertaining to the Federal Communications Commission's (FCC) review of rules pertaining to unbundled network elements. The speakers will include Robert Tongren (President of the NASUCA), Doug Holbrook (AARP), and Mark Cooper (Consumer Federation of America). Press contacts: Charles Acquard (NASUCA) at 301 589-6313 or Mark Cooper at 301 384-2204. Lunch will be served. Location: National Press Club, Zenger Room, 529 14th Street, NW.

2:00 - 3:30 PM. Sen. Charles Grassley (R-IA), Chairman of the Senate Finance Committee, will give a speech regarding the Committee's trade agenda to Consumers for World Trade. Press contact: Jill Gerber at 202 224-6522. Location: Room 215, Dirksen Building.

Day one of a two day conference titled "First International Conference on the Economic and Social Implications of Information Technology". The scheduled speakers include Secretary of Commerce Don Evans, John Marburger (President’s Science Advisor), Floyd Kvamme (Co-Chairman of the President’s Council of Advisors on Science and Technology, or PCAST), Sam Bodman (Deputy Secretary of Commerce), Nancy Victory (NTIA Directory), Phil Bond (Under Secretary for Technology), and Bruce Mehlman (Assistant Secretary for Technology Policy). See, notice and schedule. The price to attend is $100, and $60 for government, academic, and nonprofit personnel. Location: Main Auditorium, Department of Commerce, 14th St. and Constitution Ave.

Day one of three day COMNET Conference & Expo. See, conference web site. Location: Washington Convention Center.

Extended deadline to submit comments to the Federal Communications Commission's (FCC) regarding the Report [73 pages in PDF] of the FCC Spectrum Policy Task Force (SPTF). The report recommends that "spectrum policy must evolve towards more flexible and market oriented regulatory models." See, original notice [PDF] and notice of extension [PDF].

Deadline to submit comments to the Federal Communications Commission (FCC) in response to its Notice of Inquiry regarding competition in the Commercial Mobile Services (CMRS) industry. The FCC seeks data and information for its Eighth Annual Report and Analysis of Competitive Market Conditions with Respect to Commercial Mobile Services. This is WT Docket No. 02-379. See, notice in the Federal Register, January 7, 2003, Vol. 68, No. 4, at Pages 730 - 740. For more information, contact Chelsea Fallon at 202 418-7991.

Day two of a two day conference titled "First International Conference on the Economic
and Social Implications of Information Technology". The scheduled speakers include Secretary of Commerce Don Evans, John Marburger (President’s Science Advisor), Floyd Kvamme (Co-Chairman of the President’s Council of Advisors on Science and Technology, or PCAST), Sam Bodman (Deputy Secretary of Commerce), Nancy Victory (NTIA Directory), Phil Bond (Under Secretary for Technology), and Bruce Mehlman (Assistant Secretary for Technology Policy). See, notice and schedule. The price to attend is $100, and $60 for government, academic, and nonprofit personnel. Location: Main Auditorium, Department of Commerce, 14th St. and Constitution Ave.

Day two of three day COMNET Conference & Expo. See, conference web site. Location: Washington Convention Center.

9:30 AM. The Senate Judiciary Committee will hold a hearing on pending judicial nominations. See, notice [PDF]. Location: Room 226, Dirksen Building.

TIME AND ROOM CHANGE. 9:30 AM. The Senate Finance Committee will hold a hearing on the nomination of John Snow to be Secretary of the Treasury. Location: Room 216, Hart Building.

10:00 AM. Region 20 (District of Columbia, Maryland, and Northern Virginia) Public Safety Planning Committees (NPSPAC) on 800 MHz  and 700 MHz will meet. Location: Potomac Community Public Library, Woodbridge, VA.

1:15 - 2:15 PM. Panel discussion titled "The Low Down on High-Tech Communications Policy and Regulation" at the COMNET Conference & Expo. The panelists will be Richard Wiley (Wiley Rein & Fielding), Kevin Kayes (Democratic Staff Director, Senate Commerce Committee), Michael Gallagher (Deputy Director of the NTIA), James Ramsay (General Counsel of NARUC), and Bryan Tramont (Senior Legal Advisor to FCC Chairman Michael Powell). See, conference web site. Location: Washington Convention Center.

President Bush will deliver the annual State of the Union Address.

12:15 PM. The FCBA's Online Communications Committee will host a brown bag lunch. The topic will be "Digital Rights Management & Development". For more information, contact Aileen Pisciotta at apisciotta@kelleydrye.com. RSVP to bviera@kelleydrye.com. Location: Cole, Raywid & Braverman, 1919 Pennsylvania Ave., NW, Suite 200.

4:00 PM. The Cato Institute will host a book forum on Rethinking the Network Economy: The True Forces that Drive the Digital Marketplace, by Stan Liebowitz. John Lott (American Enterprise Institute) and Tom Lenard (Progress and Freedom Foundation) will comment. Webcast. A reception will follow. See, Cato notice. Location: Cato, 1000 Massachusetts Ave., NW.

Day three of three day COMNET Conference & Expo. See, conference web site. Location: Washington Convention Center.

Deadline to submit comments to the Federal Trade Commission (FTC) regarding the consent agreement that it entered into with Quicken Loans Inc. On December 30, 2002, the FTC filed an administrative Complaint [8 pages in PDF] against Quicken Loans, an online lender, alleging that it violated the Fair Credit Reporting Act (FCRA). The FTC and Quicken Loans also settled the matter. See, Agreement Containing Consent Order [7 pages in PDF]. See also, story titled "FTC Charges Quicken Loans with Violation of FCRA" in TLJ Daily E-Mail Alert No. 575, January 3, 2003. See, notice in the Federal Register, January 21, 2003, Vol. 68, No.  13, at Pages 2775-2776.

9:30 AM. The Senate Judiciary Committee will hold a business meeting to consider pending calendar business. See, notice. Location: Room 226, Dirksen Building.

9:30 AM. The Senate Armed Services Committee will hold a hearing to examine the nominations of Paul McHale to be an Assistant Secretary of Defense for Homeland Security, and Christopher Henry to be Deputy Under Secretary of Defense for Policy. Location: Room 216, Hart Building.

10:00 AM. David Dorman, CEO of AT&T, will speak on the future of the telecommunications industry. Location: National Press Club, Zenger Room, 529 14th St. NW, 13th Floor.

4:00 PM. The Cato Institute will host an event titled "Who Are the Real Free Traders in Congress?" to release a study of voting records on trade issues. The speakers will be Rep. Tom Petri (R-WI), Sen. Sam Brownback (R-KS), and Dan Griswold (Cato). See, notice and registration page. Location: Cato, 1000 Massachusetts Ave., NW.

Extended deadline to submit reply comments to the Federal Communications Commission (FCC) on whether it should change its rules restricting telemarketing calls and facsimile advertisements. This is CG Docket No. 02-278. See, original notice in the Federal Register, earlier notice of extension [PDF], and further notice in Federal Register of extension.

Deadline to submit applications to the Federal Communications Commission (FCC) for membership on the FCC's Consumer Advisory Committee. For more information, contact Scott Marshall at 202 418-2809 smarshal@fcc.gov.

Tech Law Journal is instituting several new practices and procedures with the New Year. All of these changes have one central purpose -- protecting the rights of the author, David Carney.

The Tech Law Journal web site and the Tech Law Journal Daily E-Mail Alert (TLJ Alert) are both authored and published by David Carney. This is a business. The sole source of revenue for this business is subscription payments for the TLJ Alert. Yet, it is currently being widely infringed. This is undermining the financial viability of the business.

See, Letter from the Publisher, which summarizes the new practices and procedures.

See, Subscription Information page for price schedule, methods of payment, and related matters.

See, Memorandum regarding "E-Mail Monitoring".

See, Memorandum regarding "Disclosure of Information to Third Parties".

See, Memorandum to law students explaining why free subscriptions for law students will end after the January 17 issue.

See, Memorandum regarding "Termination of state officials' subscriptions" explaining why free subscriptions for state government officials will end after the January 17 issue.

See, Subscription Form and Contract (for firms, companies, groups, and other entities), or the shorter Subscription Form and Contract (for persons subscribing individually). These contracts are for new paying subscribers, and paying subscribers renewing their subscriptions. Persons receiving free subscriptions (journalists and government officials) should not sign a contract. Paying subscribers whose subscription term has not expired should not sign a contract, until their existing subscription term expires and they resubscribe.

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