4/30. The House Commerce Committee amended and approved HR 1320, the Commercial Spectrum Enhancement Act. The Committee adopted an amendment in the nature of a substitute [PDF] offered by Rep. Fred Upton (R-MI).

This bill would change the process for reallocating spectrum from federal users to commercial users, such as for Third Generation (3G) wireless services. For example, the Department of Defense (DOD) currently uses spectrum in the 1710-1755 MHz band. The National Telecommunications and Information Administration (NTIA) and Federal Communications Commission (FCC) have identified this band for reallocation for 3G services. The DOD will incur expenses to relocate to other spectrum bands. The bill would create a Spectrum Relocation Fund, funded by auction proceeds, to compensate federal agencies for the cost of relocating. The bill would replace the current role of the House and Senate Appropriations Committees.

On April 29, Nancy Victory, Director of the National Telecommunications and Information Administration (NTIA), gave a speech regarding at a NARUC/NECA convention in which she stated that "Spectrum relocation fund legislation potentially embodies another significant step toward facilitating the deployment of new wireless broadband services and products. The current process for compensating federal agencies that relocate to make spectrum available for commercial use is time consuming and resource intensive for both government incumbents and auction winners. A spectrum relocation fund, however, could streamline and shorten the process for reimbursing incumbent government users, which in turn, could facilitate their relocation to comparable spectrum and thus expedite the opening of the original spectrum to new services and technologies."

The Cellular Telecommunications & Internet Association (CTIA) Steve Berry stated in a release after the Committee vote that "this bill represents sound government policy, delivering crucial spectrum for wireless consumers, sufficient compensation for relocating incumbents and a straightforward plan to complete the transition".

The Telecommunications and Internet Subcommittee marked up the bill on April 9, 2003. See, story titled "House Subcommittee Approves Spectrum Relocation Fund Bill", TLJ Daily E-Mail Alert No. 641, April 10, 2003. See also, TLJ story titled "House Subcommittee Holds Hearing On Commercial Spectrum Enhancement Act", March 25, 2003.

Sen. John McCain (R-AZ), Chairman of the Senate Commerce Committee, introduced the companion bill in the Senate, S 865, on April 10, 2003. No action has been taken on that bill.

4/28. The U.S. Patent and Trademark Office (USPTO) published a notice in the Federal Register of proposed changes to its rules of practice to implement the inter partes reexamination provisions, and other patent related provisions, enacted by the Congress late last year. They were included in HR 2215 (107th Congress), the "21st Century Department of Justice Appropriations Authorization Act", which President Bush signed on November 2, 2002.

The Act contains language permitting a third party requester in an inter partes reexamination proceeding to appeal a final decision by the Board of Patent Appeals and Interferences (BPAI) to the U.S. Court of Appeals (FedCir), and to participate in the patent owner's appeal of a final decision by the BPAI to the Court of Appeals.

Comments are due by June 27, 2003. For more information, contact Kenneth Schor at 703 308-6710. See, Federal Register, April 28, 2003, Vol. 68, No. 81, at Pages 22343 - 22353.

4/30. Treasury Secretary John Snow testified before the House Appropriations Committee's Subcommittee
on Foreign Operations, Export Financing and Related Programs regarding the Department of the Treasury's FY 2004 budget for foreign operations. He addressed, among other topics, reconstruction efforts in Iraq and Afghanistan.

He said in his prepared testimony that "Development regarding of a system of commercial law, founded on a base of private property rights, is an essential element of developing a market-based economy in Iraq. For this reason, we believe there are several areas in which the Iraqi people will need to focus, ranging from dealing with real estate and personal property to intellectual property rights."

He added that "These will also include establishing the legal framework for corporations, the banking system, and capital markets. Given the reach of commercial law, more than just Treasury will be involved in assisting this effort; it will also include the Departments of State, Justice, Commerce, and USAID. However, each of us recognizes the importance of creating a free market economy in the country, and development of a sound framework of commercial law is key to this goal."

4/30. The General Accounting Office (GAO) released a report [84 pages in PDF] titled "Information Technology: Terrorist Watch Lists Should Be Consolidated to Promote Better Integration and Sharing".

The report states that "the federal government's approach to using watch lists in performing its border security mission is decentralized and nonstandard, largely because these lists were developed in response to individual agencies' unique missions, including their respective legal, cultural, and systems environments."

It continues that "These lists include overlapping but not identical sets of data, and different policies and procedures govern whether and how these data are shared with others. As a general rule, this sharing is more likely to occur among federal agencies than between federal agencies and either state and local government agencies or private entities. Further, the extent to which such sharing is accomplished electronically is constrained by fundamental differences in the watch lists’ systems architecture (that is, the hardware, software, network, and data characteristics of the systems)." (Parentheses in original.)

The concludes that "To strengthen our nation’s homeland security capability, we are recommending that the Secretary of DHS take a series of steps aimed at ensuring that watch lists are appropriately and effectively standardized, consolidated, and shared."

4/30. The U.S. Court of Appeals (6thCir) issued its opinion in Heydon v. MediaOne, a dispute regarding a cable company's access to electric utility poles. The Appeals Court affirmed the District Court's dismissal, for lack of subject matter jurisdiction, of a homeowner's complaint for trespass and for declaratory relief under the Cable Communications Policy Act.

Background. Paul and Henrietta Heydon own rural property in the state of Michigan. About 70 years ago, Detroit Edison erected utility poles on the property to provide electricity. Without permission form the Heydon's, a contractor for the MediaOne subsidiary entered the property to add fiber optic cables to these poles. The contractor damaged the Heydon's property.

The Heydon's filed a complaint in state court alleging common law trespass, common law negligence, and statutory damage to land. They also sought an injunction barring MediaOne from entering their property. They later dismissed their state court action.

District Court. The Heydon's also filed a complaint in U.S. District Court (EDMich) against MediaOne. They sought declaratory and injunctive relief. They sought a declaration that the Cable Act does not permit MediaOne to enter their property, or access the electric utility poles, and an injunction against entering their property to install cable. They also sought compensation under the Cable Act.

They did not raise the Pole Attachments Act, 47 U.S.C. § 224.

The District Court dismissed their federal complaint for lack of jurisdiction. This appeal followed.

Appeals Court. The Appeals Court affirmed the dismissal for lack of subject matter jurisdiction. It first noted that jurisdiction could not be based upon diversity of citizenship, because the Heydons are Michigan citizens, and the MediaOne subsidiary is a Michigan corporation.

Second, the Court held that the Declaratory Judgment Act cannot serve as the basis for federal question jurisdiction. It wrote that "The Declaratory Judgment Act does not create an independent basis for federal subject matter jurisdiction. ... The Act only provides courts with discretion to fashion a remedy. ... Thus, before invoking the Act, the court must have jurisdiction already." (Citations omitted.)

Finally, the Court held that the Cable Communications Policy Act, 47 U.S.C. § 541, cannot serve as the basis for federal question jurisdiction in this action.

The Court wrote that "the Cable Act does not provide a private cause of action to a private landowner to exclude a cable company from its land. Congress passed the Cable Act as a compromise, balancing ``the public's right to free flowing information, the local government's interest in franchising and regulating cable operators, the cable industry's desire for growth and stability, and the potential of satellite television to offer valuable competition.´´ ... The main purpose of the Cable Act was the desire to ``establish franchise procedures and standards which encourage the growth and development of cable systems.´´" (Citations omitted.)

The Court also ruled that MediaOne's raising the Cable Act as a defense does not create federal jurisdiction.

4/30. The U.S. Court of Appeals (3rdCir) issued its opinion [PDF] in Schlumberger v. Cellnet, a case involving intellectual property rights and bankruptcy proceedings. The Appeals Court affirmed the District Court. It offered this summary: "This appeal presents us with an issue of first impression involving elections under 11 U.S.C. § 365(n). CellNet Data Systems, Inc. sold its intellectual property to Schlumberger Resource Management Services, Inc., which specifically excluded the assets and liabilities of certain licensing agreements under the terms of the sale. After CellNet rejected those licensing agreements under 11 U.S.C. § 365(a) of the bankruptcy code, the licensee exercised its rights under § 365(n) to continue to use the intellectual property, subject to the royalty payments due under the original license. Both CellNet, as party to the contract, and Schlumberger, as holder of the intellectual property, claim the right to receive the royalty payments. The District Court determined that Schlumberger had expressly severed the royalties from the intellectual property by the terms of the purchase agreement and that the royalties remained in CellNet’s estate. Although CellNet then rejected the license, the licensee, by operation of § 365(n), elected to enforce the license and thus the District Court concluded that the royalties due under the revived contract belonged to CellNet. We will affirm."

4/30. The National Telecommunications and Information Adminstration (NTIA) announced the recipients of $25 Million in grants under the Public Telecommunications Facilities Program (PTFP), which assists in the digital conversion of public television. See, list of digital television grants.

4/30. Federal Reserve Board Chairman Alan Greenspan testified before the House Financial Services Committee. See, prepared testimony.

4/15. Federal Trade Commission (FTC) and filed a complaint [9 pages in PDF] in the U.S. District Court (NDIll) against James D. Thompson and Susan B. Germek alleging internet auction fraud in violation of the Federal Trade Commission Act (FTCA).

4/29. The General Accounting Office (GAO) released a report [37 pages in PDF] titled "Information Technology: A Framework for Assessing and Improving Enterprise Architecture Management (Version 1.1)".

4/30. Nortel Networks and Redback Networks announced that they have settled their patent litigation. Nortel holds U.S. Patent Nos. 4,667,324 titled "Network multiplex structure", 4,736,363 titled "Path oriented routing system and method for packet switching networks", and 5,608,733 titled "ATM inverse multiplexing", and 6,205,142 titled "Inverse multiplexing of digital data". Redback filed a complaint in U.S. District Court (NDCal) against Nortel seeking declaratory judgment of invalidity, unenforceability and noninfringement. Nortel counterclaimed, alleging infringement. Nortel stated in a release that "As part of the settlement, Nortel Networks and Redback entered into a patent cross-licensing agreement. This agreement also includes a license from Nortel Networks to Redback for the U.S. patents that were listed in the lawsuit ... Under the agreement, Redback will also pay Nortel Networks an undisclosed fee." This is D.C. No. C02-00361.

The House will meet at 10:00 AM.

Day one of a two day conference hosted by the Computer Law Association (CLA) titled the "2003 World Computer and Internet Law Congress". See, brochure [12 pages in PDF] for schedule, prices, and registration information. Location: Fairmont Washington Hotel.

8:30 AM - 5:30 PM. Day two of a three day conference hosted by the Federal Trade Commission (FTC) titled "Spam Forum". The event will address the proliferation of unsolicited commercial e-mail and explore the technical, legal, and financial issues associated with it. For more information, contact Brian Huseman at 202 326-3320 or Lisa Tobin 202 326-3218. See, agenda and notice in the Federal Register, February 10, 2003, Vol. 68, No. 27, at Pages 6747-6748. The FTC states that "Members of the press unable to attend the forum may call in". Dial 1-866-783-5359; confirmation number: 16237484. Location: FTC, 601 New Jersey Ave., NW.

? 9:30 AM. The Senate Judiciary Committee may hold a meeting to consider several pending judicial nominations, including nominations of Carolyn Kuhl (9th Circuit), John Roberts (DC Circuit), Leon Holmes (ED Arkansas), Patricia Minaldi (WD Louisiana). Location: Room 226, Dirksen Building.

10:00 AM. The House Science Committee will meet to mark up HR 766, the Nanotechnology Research and Development Act of 2003. Location: Room 2318, Rayburn Building.

10:00 AM. The Senate Governmental Affairs Committee will hold a hearing titled "Investing in Homeland Security: Streamlining and Enhancing Homeland Security Grant Programs". Tom Ridge, Secretary of the Homeland Security, will testify. Location: Room 342, Dirksen Building.

10:00 AM - 3:00 PM. The President's National Security Telecommunications Advisory Committee (NSTAC) will hold a meeting. The meeting is closed to the public. See, notice in the Federal Register, March 21, 2003, Vol. 68, No. 55, at Page 13967.

11:00 AM - 12:00 PM. The Progressive Policy Institute (PPI), a Democratic think tank, will host a panel discussion titled "Next Steps for Reinventing Government". The speakers will be Rep. Adam Smith (D-WA), Will Marshall (PPI), and Robert Atkinson (PPI). The discussion will focus on transforming "bureaucratic government into network governance". Atkinson will also release a report titled "Network Government for the Digital Age". See, PPI notice. For more information, contact Brian Newkirk at 202 547-0001 or techproject@dlcppi.org. Location: Room 122,  Cannon Building.

12:15 PM. The Federal Communications Bar Association's (FCBA) International Committee will host a brown bag lunch. Jonathan McHale, Ken Schagrin, and Rhonda Schnare of the Office of the U.S. Trade Representative (USTR) will discuss the USTR's proposal to the World Trade Organization (WTO) regarding telecommunications services. Location: Wiley Rein & Fielding, 1750 K Street, NW, 5th Floor. For more information contact Laurie Sherman at 703 216-3150 or laurabsherman@hotmail.com.

12:45 - 1:50 PM. Former Rep. Richard Armey (R-TX) will be the luncheon speaker at the Computer Law Association conference. He will address "Formulating Public Policy for Technology Markets: Balancing Competing Demands In Today's Global Economy".

2:00 PM. The Copyright Office (CO) will hold a hearing regarding the exemption of certain classes of works from the Digital Millennium Copyright Act's (DMCA) prohibition against circumvention of technological measures that control access to copyrighted works. See, original notice in the Federal Register, March 20, 2003, Vol. 68, No. 54, at Pages 13652 - 13653, and revised notice in the Federal Register, April 23, 2003, Vol. 68, No. 78, at Pages 19966 - 19967 (changing the dates, times and locations). See also, CO web page on rulemakings on anticircumvention, the relevant statutory sections at 17 U.S.C. §§ 2101-2105, and story titled "Copyright Office to Hold Hearings on DMCA Anti Circumvention Exemptions", TLJ Daily E-Mail Alert No. 628, March 21, 2003. Location: Postal Rate Commission, 1333 H Street, NW., Third Floor.

2:30 PM. The Senate Commerce Committee will hold a hearing S 189, the 21st Century Nanotechnology Research and Development Act. The witnesses will be James Murday (Chief Scientist of the Office of Naval Research), James Roberto (Oak Ridge National Labratory), Clayton Teague (National Nanotechnology Coordination Office), Davis Baird (University of South Carolina), Jun Jiao (Center for Nanoscience and Nanotechnology, Portland State University), Kent Murphy (CEO of Luna Innovations), and James Von Ehr (CEO of Zyvex Corporation). Sen. George Allen (R-VA) will preside. Location: Room 253, Russell Building.

7:00 PM. Marybeth Peters, the Register of Copyrights, with be the dinner speaker at the Computer Law Association Conference.

8:30 AM - 5:30 PM. Day three of a three day conference hosted by the Federal Trade Commission (FTC) titled "Spam Forum". The event will address the proliferation of unsolicited commercial e-mail and explore the technical, legal, and financial issues associated with it. For more information, contact Brian Huseman at 202 326-3320 or Lisa Tobin 202 326-3218. See, agenda and notice in the Federal Register, February 10, 2003, Vol. 68, No. 27, at Pages 6747-6748. The FTC states that "Members of the press unable to attend the forum may call in", Dial 1-888-532-9659; confirmation number: 16237492. Location: FTC, 601 New Jersey Ave., NW.

9:30 AM. The Copyright Office (CO) will hold full day hearing regarding the exemption of certain classes of works from the Digital Millennium Copyright Act's (DMCA) prohibition against circumvention of technological measures that control access to copyrighted works. See, notice in the Federal Register, March 20, 2003, Vol. 68, No. 54, at Pages 13652 - 13653, and revised notice in the Federal Register, April 23, 2003, Vol. 68, No. 78, at Pages 19966 - 19967 (changing the dates, times and locations). See also, CO web page on rulemakings on anticircumvention, the relevant statutory sections at 17 U.S.C. §§ 2101-2105, and story titled "Copyright Office to Hold Hearings on DMCA Anti Circumvention Exemptions", TLJ Daily E-Mail Alert No. 628, March 21, 2003. Location: Postal Rate Commission, 1333 H Street, NW., Third Floor.

Day two of a two day conference hosted by the Computer Law Association (CLA) titled the "2003 World Computer and Internet Law Congress". See, brochure [12 pages in PDF] for schedule, prices, and registration information. Location: Fairmont Washington Hotel.

Deadline to submit applications for grants to the Rural Utilities Service (RUS) under its FY2003 Distance Learning and Telemedicine Program. See, notice in Federal Register, March 3, 2003, Vol. 68, No. 41, at Page 9973.

Deadline to submit comments to the National Institute of Standards and Technology (NIST) regarding its second draft [2.60 MB in PDF] of Special Publication 800-50 titled "Building an Information Technology Security Awareness and Training Program". Submit comments to Mark Wilson at sp800-50@nist.gov.

The Supreme Court will begin a recess. It will return on Monday, May 19.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Beery Systems v. Thomson Consumer Electronics, No. 03-1009. Location: Courtroom 201, 717 Madison Place, NW.

Day one of a three day meeting of the American Cable Association titled "10th Annual Washington Summit & 2nd Quarter Board of Directors' Meeting". Location: Wyndam Hotel.

Deadline to submit comments to the Federal Communications Commission (FCC) regarding AOL Time Warner's petition [58 pages in PDF] requesting relief from the FCC's January 22, 2001 Memorandum Opinion and Order (MOO) approving the merger of AOL and Time Warner, and imposing conditions upon AOL Time Warner regarding instant messaging services. Specifically, AOL Time Warner seeks relief from the condition restricting its ability to offer internet users streaming video advanced Instant Messaging based high speed services (AIHS) via AOL Time Warner broadband facilities.

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in Davis Broadcasting v. FCC, No. 02-1109. Judges Edwards, Sentelle, and Garland will preside. Location: 333 Constitution Ave., NW.

10:00 AM. U.S. Court of Appeals (FedCir) will hear oral argument in E-Pass Technologies v. 3Com and Palm, No. 02-1593, an appeal from the U.S. District Court (NDCal). E-Pass filed a complaint in 2000 alleging that Palm handheld devices infringe its U.S. Patent No. 5,276,311, titled "Method and device for simplifying the use of a plurality of credit cards, or the like". The District Court granted summary judgment to defendants. Location: Courtroom 402, 717 Madison Place, NW.

9:00 AM - 3:45 PM. The National Association of Broadcasters (NAB) will host a one day conference titled "5th Annual NAB Human Resources Symposium". The event will review the FCC's current EEO broadcast rules. See, notice and online registration page. The event is free. Location: L'Enfant Plaza Hotel, 480 L'Enfant Plaza, SW.

? 2:30 PM. The Senate Judiciary Committee's Subcommittee on the Constitution, Civil Rights and Property Rights may hold a hearing on judicial nominations, filibusters, and the Constitution, focusing on when a majority is denied its right to consent. Location: Room 226, Dirksen Building.

The U.S. International Telecommunication Advisory Committee (ITAC) will meet to discuss the International Telecommunication Union (ITU) Study Group 16 meeting to be held in Geneva from May 20 to May 30. See, notice in the Federal Register, April 18, 2003, Vol. 68, No. 75, at Pages 19247 - 19248.

DEADLINE EXTENDED TO MAY 16. Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Notice of Inquiry (NOI) [MS Word] regarding "Additional Spectrum for Unlicensed Devices Below 900 MHz and in the 3 GHz Band". Unlicensed devices would include, among other things, 802.11. See, notice in Federal Register, January 21, 2003, Vol. 68, No. 13, at Pages 2730-2733. See also, story titled "FCC Announces Notice of Inquiry Re More Spectrum for Unlicensed Use" in TLJ Daily E-Mail Alert No. 566, December 12, 2002. For more information, contact Hugh Van Tuyl in the FCC's Office of Engineering & Technology at hvantuyl@fcc.gov or 202 418-7506. This is OET Docket No. 02-380. See, notice of extension [PDF].

9:00 AM - 12:00 NOON. The Telecommunications Service Priority System Oversight Committee will hold a meeting. See, notice in the Federal Register, April 11, 2003, Vol. 68, No. 70, at Pages 17839 - 17840. Location: 701 South Court House Road, Arlington, VA.

President Bush announced his intent to nominate Thomas O'Connell to be Assistant Secretary of Defense for Special Operations and Low Intensity Conflict. He is currently a Member of the President's National Security Telecommunications Advisory Committee task forces. He is also currently Senior Manager for Raytheon for Intelligence and Information Systems. Before that, he was Advanced Projects Manager in the Intelligence/Electronic Warfare Division of Chrysler. 10 U.S.C. § 138 provides, in part, that "There are eight Assistant Secretaries of Defense, appointed from civilian life by the President ... One of the Assistant Secretaries shall be the Assistant Secretary of Defense for Special Operations and Low Intensity Conflict. He shall have as his principal duty the overall supervision ... of special operations activities ..." 10 U.S.C. § 167(j), in turn, provides, in part, that "special operations activities include each of the following insofar as it relates to special operations: (1) Direct action. (2) Strategic reconnaissance. (3) Unconventional warfare. (4) Foreign internal defense. (5) Civil affairs. (6) Psychological operations. (7) Counterterrorism. (8) Humanitarian assistance. (9) Theater search and rescue. (10) Such other activities as may be specified by the President or the Secretary of Defense." See, White House release.