On January 28, Rep. James Sensenbrenner (R-WI) introduced HR 428, an untitled bill to make permanent the R&D tax credit. On January 29, Rep. Nancy Johnson (R-CT) (at right) introduced HR 463, the Investment in America Act of 2003, a bill to make permanent the R&D tax credit, increase the rates of the alternative incremental credit, and provide an alternative simplified credit for qualified research expenses.

These will likely be just two of many bills introduced on this subject in the 108th Congress. The R&D tax credit has become a perennial issue in Congress. The credit was first enacted in 1981 as a temporary measure, and has been extended repeatedly since then. Under the current scheme, corporations receive a 20% tax credit for qualified research and development expenditures (QREs) in excess of a calculated base amount.

The Congress passed, and President Clinton signed, a bill that extends the R&D tax credit for another five years at the end of 1999. The bill was a huge collection of appropriations bills.

While numerous bills have been introduced over the years, much of the effort has focused on three versions. First, there is the Johnson version. Prior versions of this bill have included HR 835 (106th Congress) and HR 41 (107th). These bills have attracted 165 and 119 cosponsors, in the 106th and 107th Congresses, but did not become law. Sen. Orrin Hatch (R-UT) has introduced companion bills in the Senate. See, S 680 (106th) and S 41 (107th), which had 46 and 53 cosponsors, respectively.

The second variation is that proposed by Rep. Sensenbrenner. See, HR 760 (106th) and HR 1329 (107th). Sen. Barbara Boxer (D-CA) has sponsored companion legislation in the Senate. See, S 195 (106th). These bills have attracted fewer cosponsors.

A third variation is that proposed by Sen. Pete Domenici (R-NM). See, S 951 (106th) and S 515 (107th). Rep. Heather Wilson (R-NM) has sponsored companion legislation in the House. See, HR 1682 (106th) and HR 1137 (107th). These bills would make permanent the credit, change the alternative incremental credit, expand the credit to support collaborative research and development, and make it easier for small and start-up businesses to access the credit.

While the Domenici Wilson version has not attracted as many cosponsors as the Hatch Johnson version, perhaps it is significant that one of these cosponsors has been Sen. Bill Frist (R-TN), who is now the Senate Majority Leader.

This bill would amend 5 U.S.C. § 553 to provide that "Whenever an agency is required by section 553 of this title, or any other law, to publish a general notice of proposed rulemaking for any proposed rule, or publishes a notice of proposed rulemaking for an interpretative rule involving the internal revenue laws of the United States, the agency shall prepare and make available for public comment an initial privacy impact analysis. Such analysis shall describe the impact of the proposed rule on the privacy of individuals."

The bill does not mandate privacy practices. Rather, it requires a privacy impact analysis that discloses information about privacy related practices. The privacy impact analysis must contain "A description and assessment of the extent to which the proposed rule will impact the privacy interests of individuals, including the extent to which the proposed rule (i) provides notice of the collection of personally identifiable information, and specifies what personally identifiable information is to be collected and how it is to be collected, maintained, used, and disclosed; (ii) allows access to such information by the person to whom the personally identifiable information pertains and provides an opportunity to correct inaccuracies; (iii) prevents such information, which is collected for one purpose, from being used for another purpose; and (iv) provides security for such information."

This is a reintroduction of HR 4561, the Federal Agency Protection of Privacy Act, which was sponsored by former Rep. Bob Barr (R-GA) in the 107th Congress. It passed in the House Judiciary Committee on September 10, 2002, and the full House on October 7, 2002, under suspension of the rules. The companion bill in the Senate, S 2492, was sponsored by former Sen. Max Cleland (D-GA). It saw no action.

Rep. Chabot (at right) is a member of the House Judiciary Committee.

This bill will again go to the House Judiciary Committee, and its Subcommittee on Commercial and Administrative Law. In the 107th Congress, Rep. Barr chaired this subcommittee. Rep. Chris Cannon (R-UT) was just selected to chair this Subcommittee for the 108th Congress. He was a cosponsor of HR 4561 in the 107th Congress.

See also, story titled "House Subcommittee Holds Hearing on Federal Agency Privacy", TLJ Daily E-Mail Alert No. 423, May 2, 2002.

The specific dispute here -- whether Greg Ruggiero, as a former bandit broadcaster, can get a low power FM license -- is not very important. However, appeals courts are obligated to explain the legal basis of their holdings. Hence, this case was an occasion for the Appeals Court to elaborate on First Amendment free speech limitations upon the Federal Communications Commission's (FCC) authority to regulate broadcast speech. Yet, the en banc panel, like the three judge panel before it, articulated an outcome, but no clear explanation.

The Radio Broadcasting Preservation Act of 2000 (RBPA) permanently prohibits anyone who ever "engaged in any manner in the unlicensed operation of any station in violation of ... the Communications Act of 1934" from obtaining a low power FM radio license from the FCC. Greg Ruggiero is a former pirate broadcaster. He later sought a low power FM license from the FCC. He argued that the statute and the FCC's implementing rules violate his First Amendment rights.

Ruggiero asserts that the FCC's denial constituted a content based restraint on speech, and therefore, the Court should apply an intermediate scrutiny standard, such as that articulated in FCC v. League of Women Voters, 468 U.S. 364 (1984). The FCC asserted that its decision was content neutral, and therefore, the Court should apply a minimal scrutiny standard, such as that articulated in FCC v. National Citizens Committee for Broadcasting, 436 U.S. 775 (1978).

The en banc panel rejected both positions, but remained unclear as to what standard does apply. It wrote that "the appropriate standard of review occupies a ground somewhere between the minimal scrutiny advocated by the Commission and the intermediate scrutiny proposed by Ruggiero".

The Appeals Court did conclude that the restraint in this case is content neutral. That is, applicants such as Ruggiero are rejected because of their prior violation of law, not because of the content of their speech. However, the Court rejected minimal scrutiny. It wrote that "Minimal scrutiny is appropriate to the indirect effect upon speech that may attend ``structural´´ regulation of the broadcast industry, such as the newspaper broadcast ownership rules. The Court added that these rules "merely constrained the newspaper publisher's choice of the community in which to own a radio or television station; it did not prohibit the publisher from broadcasting altogether". In contrast, the RBPA prevents the speaker from broadcasting anywhere, and is thus not merely "structural".

So, what exactly is the "somewhere between" standard? The Court wrote that "We need not be more precise".

It did add, however, that "because we conclude that the character qualification provision is reasonably tailored to satisfying a substantial government interest, and that is surely enough to uphold a prohibition upon broadcast speech that, although complete within its limited sphere, is in no respect content-based."

Judge Tatel, who wrote the majority opinion for the three judge panel, wrote a lengthy dissent to the en banc opinion. He wrote that "The question presented here is whether unlicensed microbroadcasters, many of whom have already been punished for their misdeeds, may be subjected to a unique and draconian sanction that automatically and forever bars them -- unlike any other violator of the Communications Act or regulations -- from applying for low power licenses regardless of either the circumstances of their offenses or evidence that they can nevertheless operate in the public interest. Because this double standard is indefensible, because the statute's automatic lifetime ban restricts speech, and because the court, though purporting to embrace this circuit's more than minimal scrutiny standard, actually subjects the statute to the minimal scrutiny reserved for non-First Amendment cases, I respectfully dissent."

Judge Randolph wrote a concurring opinion. He argued that Ruggiero lacked standing. Judge Rogers, who had joined in Judge Tatel's opinion on the three judge panel, also wrote a concurring opinion. This time, he agreed with Judge Randolph that Ruggiero lacked standing.

What is clear, absent the unlikely possibilities of either Supreme Court review or a change of heart in the Congress and FCC, is that Ruggiero will not get a low power FM license. And, similarly situated applicants will not get licenses either. But, this is a very small set of people. Perhaps, Ruggiero could develop a web site, and stream, rather than broadcast, his speech. One still does not need an FCC license to webcast.

See also, stories titled "Appeals Court Overturns Ban on Licensing Former Pirate Broadcasters" in TLJ Daily E-Mail Alert No. 365, February 11, 2002; and "DC Circuit Grants Rehearing En Banc in Ruggiero Case" in TLJ Daily E-Mail Alert No. 430, May 13, 2002.

The Federal Communications Commission (FCC) canceled 19 broadband licenses held by 21st Century Telesis following its failure to make timely payments on its licenses. 21st Century petitioned for review of FCC orders determining that it was provided adequate notice before cancellation of its licenses, and declining to consider its late filed arguments that the automatic cancellation rule exceeds the FCC's statutory authority and as applied violates due process.

The Court of Appeals ruled that "Because 21st Century's challenges to the automatic cancellation of its C block licenses are either moot or unripe, 21st Century lacks standing to bring those challenges, and we dismiss that part of the petition. Because 21st Century fails to show with respect to its F block licenses either that the Commission abused its discretion under 47 U.S.C. § 405 and 47 C.F.R. § 1.106(f) by declining to consider late filed hearing arguments, thus making it improper for the court to address those contentions, or that the Commission failed to provide sufficient notice of 21st Century's payment obligations, we deny the petition in part."

North American Philips (Philips) makes semiconductors. General Motors (GM) purchases semiconductors for use in its cars, for, among other things, cruise control systems. Philips wanted to sell semiconductors to GM. APJ Associates (APJ) is a manufacturers representative firm. Philips contracted with APJ to have APJ assist Philips in developing a business relationship with GM. The contract provided the APJ would receive a commission on sales. The contract also provided that either party could terminate the contract with 30 days notice, and that no commission would be payable after termination of the contract. APJ worked on behalf of Philips for over two years, arranging meetings and acting as a liaison between Philips and GM. Then Philips terminated the contract. Then Philips began selling semiconductors to GM, which have been installed in GM cars, without paying commissions to APJ.

APJ filed a complaint in U.S. District Court (EDMich) against Philips alleging fraudulent inducement, promissory estoppel, and violation of the Michigan Sales Representative Act. The District Court granted summary judgment to Philips, and APJ appealed. The Appeals Court affirmed. APJ's problem was that it negotiated a dumb contract, and Philips took advantage of this. The Court wrote that APJ's "subjective expectations were thwarted by a bad bargain, not by fraud or reliance on an oral contract".

On August 8, 2002, the Federal Communications Commission (FCC) announced an order that requires that most TV sets be built with digital TV tuners. Specifically, the FCC announced a Second Report and Order and Second Memorandum Opinion and Order [49 pages in PDF] in Media Bureau Docket No. 00-39. This is FCC No. 02-230.

This FCC order mandates technology standards, and sets deadlines for compliance with those standards, for all but the smallest TV sets. The order requires that by 2007 all TV sets with screen sizes larger than thirteen inches and all TV receiving equipment, such as videocassette recorders (VCRs) and digital versatile disk (DVD) players and recorders, include digital television (DTV) reception capability.

Kenneth Ferree, Chief of the FCC's Media Bureau, spoke with reporters on August 8, 2002, after the FCC meeting at which the order was announced. He stated that the statutory authority for the order is 47 U.S.C. § 303. It provides, in part, that "the Commission from time to time, as public convenience, interest, or necessity requires, shall ... (s) Have authority to require that apparatus designed to receive television pictures broadcast simultaneously with sound be capable of adequately receiving all frequencies allocated by the Commission to television broadcasting when such apparatus is shipped in interstate commerce, or is imported from any foreign country into the United States, for sale or resale to the public".

The Consumer Electronics Association (CEA) filed a petition for review of this order on October 11, 2002, with the U.S. Court of Appeals (DCCir).

HR 426 provides that the FCC lacks authority to mandate DTV tuners. It provides that "Neither section 303(s) of the Communications Act of 1934 (47 U.S.C. 303(s)) nor any other provision of such Act shall be construed to authorize the Federal Communications Commission to require, or prescribe any schedule for the implementation of, digital television reception capability in television broadcast reception equipment."

This bill further provides that "The requirements and schedule established by the Commission for the implementation of digital television reception capability in television broadcast reception equipment as contained in section 15.117(i) of the Commission's regulations (47 CFR 15.117(i)) as modified in FCC 02-230 (August 8, 2002), shall not be effective except as expressly hereafter provided by Act of Congress."

The bills original cosponsors are Rep. Jeff Miller (R-FL), Rep. Ron Paul (R-TX), Rep. Chris Cox (R-CA), and Rep. Barney Frank (D-MA). The bill was referred to the House Commerce Committee. Rep. Cox is a senior member of the Committee, and its Telecom and Internet Subcommittee.

See also, story titled "FCC Mandates DTV Standards and Deadlines", TLJ Daily E-Mail Alert No. 488, August 9, 2002.

The bill would do several things. First, it would require the federal government to create a national electronic file format. Second, it would require schools receiving certain federal funds to enter into contracts with publishers that require the use of this format. Third, it would amend copyright law to exempt from liability for infringement certain publishers that make materials available in this format.

The bill states that its purpose is "to improve access to printed instructional materials used by blind persons, or other persons with print disabilities, in elementary schools and secondary schools through the creation of a coordinated and efficient system for acquisition and distribution of instructional materials in the form of electronic files suitable for conversion into a variety of specialized formats."

Rep. Petri stated in the House that "It often takes months for a blind student to have the same materials as his or her sighted peers because of the cumbersome process needed to translate a textbook into Braille or other specialized format. This legislation will eliminate these delays by putting in place standards to assist States and school districts in delivering instructional materials to blind students." See, Cong. Record, Jan. 29, 2003, at H231.

National Standard. The bill requires the Department of Education to write "Instructional Materials Accessibility Standards" that "shall (A) define the specific technical parameters of the national electronic file format to be used by publishers of instructional materials in the preparation of electronic files suitable for efficient conversion into specialized formats; and (B) be consistent with and based upon existing and emerging standards relating to electronic publishing and translation technology used to produce specialized formats."

The bill defines "national electronic file format" as "a well-organized, structured, and marked-up electronic file that is suitable for efficient conversion into specialized formats ..." Then, it provides that "specialized format" means "Braille, synthesized speech, digital text, digital audio, or large print".

The bill extends to "instructional materials", which the bill defines as "printed textbooks and related core materials that are written and published primarily for use in elementary school and secondary school instruction ..."

Use of Format. Rep. Petri issued a release that states that the bill "requires publishers to provide a copy of each textbook in the national electronic file format". Technically, the bill requires that all schools that receive federal subsidies under the Individuals with Disabilities Education Act shall "enter into a written contract with the publisher of the materials to prepare, in conjunction with the provision of such materials, electronic files containing the contents of the materials in the national electronic file format ..."

Copyright Law. The bill also would change copyright law. There is a already an exemption to infringement in the Copyright Act for publication of copyrighted material in braille. Codified at 17 U.S.C. S 121, it provides that "Notwithstanding the provisions of section 106, it is not an infringement of copyright for an authorized entity to reproduce or to distribute copies or phonorecords of a previously published, nondramatic literary work if such copies or phonorecords are reproduced or distributed in specialized formats exclusively for use by blind or other persons with disabilities."

An ''authorized entity'', in turn, is currently defined as "a nonprofit organization or a governmental agency that has a primary mission to provide specialized services relating to training, education, or adaptive reading or information access needs of blind or other persons with disabilities".

HR 490 would provide that "A publisher that provides instructional materials to a State educational agency or local educational agency in the national electronic file format prescribed under section 3(a), shall, for such purposes, be considered an authorized entity within the meaning of section 121". Hence, the bill expands the class of items covered by the Section 121 exemption to include materials published in the national electronic file format. It also expands the class of entities exempt under Section 121.

Rep. George Miller (D-CA) is the lead cosponsor of the bill. The bill was referred to the House Education and Workforce Committee.

1/31. The U.S. Attorney's Office (NDCal) announced that it filed a criminal complaint against Krsna Lev-Twombly alleging distribution of opium poppy in violation of 21 U.S.C. § 841(a)(1). The USAO stated in a release that Twombly, who has been arrested, sold the opium poppies on the eBay auction web site.

1/29. Thomas Sanderson plead guilty in U.S. District Court (EDVa) to a criminal information charging one count of exceeding authorized access to a computer. The USAO stated in a release [PDF] that "beginning in February 2002 he offered numerous items for sale on the Internet website eBay and in e-mail messages directed at eBay bidders. Sanderson, however, never owned the items. These items included a ``Sarah Hughes Signed Figure Skate´´ and a ``US Flag Signed by 3 Shea Generations,´´ both of which had been offered for sale through eBay by the charity Olympic Aid. Sanderson, using his access to eBay's computers, contacted disappointed bidders in the Olympic Aid auctions, claimed that the high bidders had ``backed out´´ and offered to sell the items for the winning bid price. In order to appear to be an Olympic Aid official, Sanderson registered the domain name ``Olympic-Aid.com´´ and sent his messages from addresses such as ``FrankO’Hare@Olympic-Aid.com.´´"

1/31. Robert Keppel was sentenced by the U.S. District Court (WDWash) to a term of incarceration of one year for theft of trade secrets in violation of 18 U.S.C. § 1832(a)(2). Keppel sold "cheat sheet" answers to Microsoft's exams for qualification as a Microsoft Certified Systems Engineer (MCSE) and Microsoft Certified Solution Developer (MCSD). The USAO stated in a release that "When the tests are administered, there are two separate ``banner´´ pages that the test-taker encounters before the test starts. These ``banner´´ pages require the test-taker to agree to certain terms regarding the test material including an agreement not to copy or release the test material. By the terms of its contracts with the testing sites, MS does not allow the test material outside of the testing locations for any reason. Consequently, the sale and distribution of KEPPEL's ``cheat-sheets´´ violated Microsoft copyright and constituted a conversion of Microsoft proprietary information for personal gain." The USAO further stated that Keppel received over $750,000 from the sale of his "cheat sheets" through a web site. It further states that he used the proceeds to buy, among others things, a Ferrari automobile. The court also ordered the forfeiture of the Ferrari.

Swire asserts that "we can expect a large and geometrically growing number of abusive subpoenas" submitted by "fly by night" requestors seeking formation for the purposes of marketing, identity theft, and stalking. However, Swire does not assert in his declaration that any such subpoena has yet been been requested. See also, Swire press release.

On January 21, 2003, the U.S. District Court (DC) issued its opinion ruling that copyright holders can obtain subpoenas pursuant to 17 U.S.C. § 512(h) that require Internet Service Providers (ISPs) to reveal the identities of their customers who infringe copyrights on peer to peer filing sharing systems. Verizon had argued that § 512(h) subpoenas were only available with respect to infringers who stored infringing content on the servers of the ISP. While the Recording Industry Association of America (RIAA) could obtain a subpoena by other means, this holding is significant because § 512(h) provides a fast and efficient means of obtaining subpoenas for ISP's information that identifies infringers. In particular, it requires no notice to, or opportunity to be heard by, the alleged infringer. See, TLJ story titled "District Court Rules DMCA Subpoenas Available for P2P Infringers", January 21, 2003.

Swire's document is a declaration made under penalty of perjury. However, it is essentially legal argument, and speculation as to how people might make use of § 512(h) subpoenas in the future. Also, Professor Swire's timing could be characterized as late. The District Court has already ruled against Verizon, and the appeals process has begun.

Swire stated in his declaration that "Given the minimal showing required for ``good faith´´ subpoenas under Section 512(h), the scope for arguably valid subpoenas increases further. The amicus briefs cite numerous examples of questionable and potentially abusive subpoenas. Other questionable Section 512(h) subpoenas could easily be conceived, such as a person claiming copyright infringement (e.g., of a person's writing or statement) when in fact they are seeking to discover the identity of a person they accuse of defamation. The identity of individuals subject to a defamation claim today must go through the John Doe process, but a critic that cites to some actual text attributed to another person might now be subject to a ``good faith´´ Section 512(h) subpoena."

Swire continued that "The potential for bad faith subpoenas, however, is even more vast. Based on my experience with the Internet, we can expect a large and geometrically growing number of abusive subpoenas that will be impossible to distinguish from legitimate subpoenas from copyright holders. For anyone who wants to reveal a speaker's identity, it will be easy to craft a legitimate looking subpoena that Verizon will be obliged to honor ``expeditiously.´´ Many of these abusive subpoenas will come from individuals in the United States."

He added that "many of the abuses could well come from offshore organizations that are beyond the reach of U.S. courts. The actual obtaining and service of such subpoenas could be done by fly-by-night operators in the United States that would open and then close Post Office boxes as quickly as possible. In short, Section 512(h) subpoenas could well become the New Spam, flooding the in-boxes of ISPs, with legitimate and illegitimate subpoenas jumbled together indistinguishably."

He concluded that "The most common use may be by any web site that wants to learn the identity of those who visit its site, just for marketing purposes or for more nefarious reasons, including identity theft, fraud, or stalking. Porm sites, gambling sites or other sites that would cause embarrassment, could track down anonymous surfers and demand payment not to reveal the user's identity under the pretext of enforcing a ``copyright´´ in the content of the site."

§ 512 subpoenas require the submission of a sworn statement. Hence, the bad faith subpoena requests described by Professor Swire would entail perjury by the signer, and probably subornation of perjury by others. Moreover, as Verizon has done, the ISP can seek judicial relief.

1/31. Jo-Anne Barnard was named Chief Financial and Chief Administrative Officer of the U.S. Patent and Trademark Office (USPTO). See, USPTO release.

1/31. BellSouth filed a complaint in Fulton County Superior Court in Atlanta, Georgia seeking injunctive relief preventing Gary Forsee from taking employment from Sprint. The Court issued an ex parte temporary restraining order (TRO) on January 31. Sprint stated in a release that "William T. Esrey, chairman and chief executive officer, is expected to stay as chairman for a transition period. ... Esrey and Ronald T. LeMay, president and chief operating officer, remain in their current positions with Sprint."

1/31. Dane Snowden, Chief of the Federal Communications Commission's (FCC) Consumer and Governmental Affairs Bureau, announced that "We expect to release our rules on telemarketing in late spring" and "we will work closely with the FTC to craft rules that protect the privacy of the American consumer without penalizing legitimate telemarketers". See, FCC release [PDF].

1/31. The U.S. Patent and Trademark Office (USPTO) announced that the USPTO and the Patent Office Professional Association (POPA), a union representing 3,500 patent examiners, have reached an agreement regarding the USPTO's telework program. The USPTO stated in a release that "Under the program, approximately 700 senior examiners, representing about 60% of the agency's top-level examiners, are eligible to work from home one day a week. Eligible participants must be performing at the fully successful level and be in full compliance with all of the agency’s ethical, conduct and confidentiality standards."

1/31. The Office of the U.S. Trade Representative (USTR) announced that the Free Trade Area of the Americas (FTAA) Ministerial Meeting will take place on November 20-21, 2003, in Miami, Florida. See, USTR release.

1/28. Rep. Patrick Kennedy (D-RI) withdrew as a cosponsor of HR 107 [PDF], the Digital Media Consumer Rights Act (DMCRA). This is Rep. Rick Boucher's (D-VA) bill to, among other things, create a fair use exemption to the anti-circumvention provisions of the Digital Millennium Copyright Act (DMCA). See, Cong Record, Jan. 28 at H195.

1/29. BellSouth filed a complaint in U.S. District Court (NDGa) against Glenayre Technologies and Call Sciences alleging  infringement of its U.S. Patent No. 5,764,747 titled "Personal Number Communication System". BellSouth stated in a release that the defendants "are infringing on BellSouth's patent on call routing technology, which is commonly used for ``one number service´´ offerings". In response, Eric Doggett, P/CEO of Glenayre stated in a release that "BellSouth's allegations are without merit". He raised two issues. First, he stated that "none of our products or technologies infringe upon the BellSouth patent". Second, he questioned the "validity" of the patent in suit.

1/31. The California Court of Appeal (6th) issued its opinion [MS Word] in Apple Computer v. County of Santa Clara Assessment Appeals Board, a dispute regarding procedure for claiming overpayment of local property taxes.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Bell Communications v. Fore Systems, No. 02-1083. Location: Courtroom 201, 717 Madison Place, NW.

2:00 PM. Pam Olson, Assistant Secretary of the Treasury for Tax Policy, will hold the "Blue Book" technical briefing on President Bush's tax proposals. The Treasury Department (TD) stated in a notice that it will publish this Blue Book [PDF] in its web site at 8:00 AM on February 3. The TD notice also states that this is a "no cameras -- pen & pad only" event, and that "Media without Treasury or White House press credentials ... should contact Treasury's Office of Public Affairs at (202) 622-2960 ..." Location: TD, Media Room 4121, 1500 Pennsylvania Ave., NW.

Deadline to submit comments to the Federal Communications Commission (FCC) in response to its Notice of Inquiry (NOI) in the proceeding titled "In the matter of Facilitating the Provision of Spectrum Based Services to Rural Areas and Promoting Opportunities for Rural Telephone Companies To Provide Spectrum Based Services". This is WT Docket No. 02-381. For more information, contact Robert Krinsky at 202 418-0660. See also, notice in the Federal Register, January 7, 2003, Vol. 68, No. 4, at Pages 723 - 730.

EXTENDED TO FEBRUARY 18. Deadline to submit comments to the Federal Communications Commission (FCC) in response to its Further Notice of Proposed Rulemaking, (FNPRM), released last month, regarding whether providers of various services and devices not currently within the scope of the FCC's 911 rules should be required to provide access to emergency services. This is CC Docket No. 94-102 and IB Docket No. 99-67. See, notice in the Federal Register, January 23, 2003, Vol. 68, No. 15, at Pages 3214 - 3220. See also, notice of extension.

Deadline to submit comments to the Copyright Office (CO) in response to its notice of proposed rulemaking (NPRM) regarding the form, content, and manner of service of notices of termination under Section 203 of the Copyright Act. 17 U.S.C. § 203 pertains to the termination of transfers and licenses granted by the author. See, notice in the Federal Register, December 20, 2002 Vol. 67, No. 245, at Pages 77951 - 77955. For more information, contact David Carson, CO General Counsel, at 202 707-8380.

Deadline to submit comments to the Federal Trade Commission (FTC) regarding MSC.Software's December 30, 2002, petition [8 page PDF scan] for approval of its proposed divestiture of Nastran software to EDS. The petition is titled "Petition of MSC.Software Corporation for Approval of Proposed Divestiture". It was filed in the FTC's administrative proceeding titled "In the Matter of MSC.Software Corporation". This is FTC Docket No. 9299. In August 2002, the FTC and MSC also entered into an Agreement Containing Consent Order [22 pages PDF] which provides that MSC must divest at least one copy of its current advanced Nastran software, including the source code. The divestiture will be through royalty free, perpetual, non-exclusive licenses to one or two acquirers who must be approved by the FTC. For more information, contact Daniel Ducore of the FTC's Bureau of Competition at 202 326-2526.

9:00 AM - 12:00 NOON. The U.S. Patent and Trademark Office (USPTO) will hold a hearing to assist it in writing a report to the Congress regarding technological protection systems for digitized copyrighted works and to prevent infringement. This report is required by the Technology, Education and Copyright Harmonization Act of 2002 (TEACH Act). See, notice in the Federal Register, December 9, 2002, Vol. 67, No. 236, at Pages 72920 - 72921. For more information, contact Michael Shapiro at 703 305-9300 or teach.act@uspto.gov. Location: 2121 Crystal Drive, Crystal Park 2, Room 200 (Patent Theatre), Arlington, VA.

9:30 AM. The Senate Commerce Committee will hold a hearing on spectrum issues and the Report [73 pages in PDF] of the Federal Communications Commission's (FCC) Spectrum Policy Task Force. Location: Room 253, Russell Building.

9:00 AM. Richard Clarida, Assistant Secretary of the Treasury for Economic Policy, will deliver remarks at the Economic Briefing before Treasury Borrowing Advisory Committee. Location: Department of the Treasury, Large Conference Room 3327, 1500 Pennsylvania Ave., NW.

10:00 AM. The House Budget Committee will hold an organizational meeting. It will also hear testimony from Mitch Daniels, Director of the Office of Management and Budget. Location: Room 210, Cannon Building.

4:30 PM. The House Education and Workforce Committee will hold an organizational meeting. Location: room 2175, Rayburn Building.

6:30 PM. The House Rules Committee will meet. The agenda includes adopting a rule for consideration of HR 395, The Do-Not-Call Implementation Act. Location: Room H-312, The Capitol.

8:30 - 10:00 AM. Harold Furchtgott-Roth and Gregory Sidak of the American Enterprise Institute (AEI) will host a press breakfast to discuss pending FCC reviews of telecommunications regulations and media ownership rules. RSVP to Veronique Rodman at vrodman@aei.org or call Heather Dresser at 202 862-5884. Location: AEI, 1150 17th Street, NW.

9:30 AM. The Senate Judiciary Committee will hold a hearing on judicial nominations. Location: Room 226, Dirksen Building.

10:00 AM. The Senate Banking Committee will hold a hearing on the nomination of William Donaldson to be a member of the Securities and Exchange Commission (SEC).

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Altima Communications v. USITC, No. 02-1110. The U.S. International Trade Commission barred the import by Altima Communications, a Broadcom subsidiary, of certain ethernet networking products found to infringe Intel patents. Fish and Richardson represents Intel in this matter. Location: Courtroom 402, 717 Madison Place, NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Crossroads Systems v. Chaparral Network Storage, No. 02-1158. This is an appeal from the U.S. District Court (WDTex) in a patent infringement case involving storage router technology. (D.C. No. 00-CA-217-SS.) Location: Courtroom 203, 717 Madison Place, NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Digital Privacy v. RSA Security, No. 02-1440. This is an appeal from the U.S. District Court (EDVa) in a patent infringement case involving the pre-boot protection of unauthorized use of computer programs and data. Location: Courtroom 201, 717 Madison Place, NW.

11:00 AM. The Cato Institute will host a panel discussion titled "Battle over the Broadcast Flag: The IP Wars and the HDTV Transition". The speakers will be Fritz Attaway (Motion Picture Association of America), Jim Burger (Dow Lohnes & Albertson), Mike Godwin (Public Knowledge), and Andy Setos (Fox Entertainment Group). See, notice and registration page. Lunch will follow. Location: Cato, 1000 Massachusetts Ave., NW.

12:30 PM. The House Armed Services Committee will hold its organizational meeting for the 108th Congress. Location: Room 2118, Rayburn Building.

1:00 PM. The House Commerce Committee's Subcommittee on Telecommunications and the Internet will hold a hearing titled "Health of the Telecommunications Sector: A Perspective from Investors and Economists". See, notice. Location: Room 2123, Rayburn Building.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument en banc in Festo v. SMC Corp., No. 95-1066. Location: Courtroom 201, 717 Madison Place, NW.

10:00 AM. The Internet Security Alliance (ISA) will hold a press conference to announce the release of new information security consumer guidelines. The speakers will include Orson Swindle (Commissioner, Federal Trade Commission), Dave McCurdy (ISA), Susan Grant (National Consumers League), and Mark MacCarthy (Visa). Location: Lisagore Room, National Press Club, 529 14th Street, NW. See, FTC release.

11:00 AM. The House International Relations Committee will hold its organizational meeting for the 108th Congress. Location: Room 2172, Rayburn Building.

3:30 PM. Madhavi Sunder (Professor of Law, University of California at Davis Law School) will give a lecture titled "IP3: Intellectual Property, Identity Politics, and the Internet Protocol". For more information, contact Julie Cohen at  jec@law.georgetown.edu. Location: Georgetown University Law Center, Faculty Lounge, 600 New Jersey Ave., NW.

Deadline to submit comments to the Federal Communications Commission (FCC) regarding BellSouth's December 20, 2002 Petition for Forbearance [16 pages in PDF] from application of the separate subsidiary requirements to provide international directory assistance service. BellSouth asked the FCC to forbear from applying the structural separation requirements of 47 U.S.C. § 272 to allow BellSouth to provide international directory assistance service on an integrated basis together with its local and nonlocal directory assistance services. See, FCC notice [2 pages in PDF]. This is CC Docket No. 97-172.

12:00 NOON - 1:30 PM. The Bureau of Industry and Security's National Infrastructure Advisory Council (NIAC) will meet. Richard Clarke (Special Advisor to the President for Cyberspace Security) and Richard Davidson, (Chairman of NIAC) will speak. The agenda also includes a discussion of Internet Protocol Version 6.0 and responsible disclosure of cyber attacks or incidents. The public can attend only via teleconference. Call 1-888-899-7785 (toll free) or 1-913-312-4169 (toll), and when prompted, enter pass code 1468517. See, notice in the Federal Register, January 28, 2003, Vol. 68, No.18, at Page 4167.

12:15 PM. The Federal Communications Bar Association's (FCBA) Wireless Telecommunications Practice Committee will host a luncheon. The speakers will be wireless and spectrum Legal Advisors to FCC Commissioners. The price is $15. RSVP to Wendy Parish at wendy@fcba.org. Location: Sidley Austin, 1501 K St., NW, Conference Room 6E.

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.

And finally, see revised Privacy Policy.