10/16. The U.S. District Court (DMinn) issued its Memorandum and Order [PDF] in Vonage v. Minnesota Public Utilities Commission, holding that Vonage is an information service provider, and that the MPUC cannot apply state laws that regulate telecommunications carriers to Vonage. The Court wrote that "State regulation would effectively decimate Congress's mandate that the Internet remain unfettered by regulation."

The conclusion that a service provider offers an information service, rather than telecommunications service, would prevent state and federal government entities from applying rules that apply to telecommunications, such as those pertaining to the filing of tariffs, cross subsidies, unbundling, wiretapping and other electronic surveillance by the FBI and other law enforcement agencies, and 911.

The Court engaged in a detailed review of the technological nature of the services provided by Vonage, and determined that these are information services under the language of the Communications Act, as amended, orders of the Federal Communications Commission (FCC), and particularly the 1980 Second Computer Inquiry, and the April 10, 1998 Universal Service Report, and opinions of the U.S. Supreme Court, Eighth Circuit, and the Fourth Circuit.

Notably, the Court ignored the opinions of the Ninth Circuit regarding classification of broadband internet services provided by cable operators as a telecommunications service. See, June 22, 2000, opinion in AT&T v. Portland holding that "transmission of Internet service to subscribers over cable broadband facilities is a telecommunications service".

See also, October 6, 2003 opinion [39 pages in PDF] in Brand X Internet Services v. FCC, vacating the FCC's declaratory ruling that cable modem service is an information service, and that there is no separate offering as a telecommunications service. And see, TLJ story titled "9th Circuit Vacates FCC Declaratory Ruling That Cable Modem Service is an Information Service Without a Separate Offering of a Telecommunications Service", October 6, 2003.

Also, the Court's conclusion was dependent upon its analysis of the technological nature of the services provided.

Vonage provides a service that permits voice communications over the internet. It sells a service called Vonage DigitalVoice that enables its customers to engage in voice communications, with broadband internet connections, using voice over internet protocol (VOIP). It has customers in the state of Minnesota.

The Minnesota Public Utilities Commission (MPUC) issued an order on September 13, 2003 requiring Vonage to comply with Minnesota laws that regulate telephone companies.

Vonage filed a complaint in U.S. District Court in Minnesota against the MPUC and its Commissioners, in their official capacities. It seeks declaratory and injunctive relief. It argues that its VOIP service is an information service, not a telecommunications service.

The Court began by observing that "Despite its continued growth and development, the Internet remains in its infancy, and is an uncharted frontier with vast unknowns left to explore. Congress has expressed a clear intent to leave the Internet free from undue regulation so that this growth and exploration may continue. Congress also differentiated between ``telecommunications services,´´ which may be regulated, and ``information services,´´ which like the Internet, may not."

It added that "At the outset, the Court must note that the backbone of Vonage's service is the Internet. Congress has spoken with unmistakable clarity on the issue of regulating the Internet: ``It is the policy of the United States ... to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation.´´ 47 U.S.C. § 230(b)".

The Court applied the facts regarding Vonage's technology to the Communications Act, and concluded "that the VoIP service provided by Vonage constitutes an information service because it offers the ``capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information via telecommunications.´´ 47 U.S.C. § 153(20). The process of transmitting customer calls over the Internet requires Vonage to ``act on´´ the format and protocol of the information. 47 C.F.R. § 64.702(a)."

The Court elaborated that "For calls originating with one of Vonage's customers, calls in the VoIP format must be transformed into the format of the PSTN before a POTS user can receive the call. For calls originating from a POTS user, the process of acting on the format and protocol is reversed. The Court concludes that Vonage's activities fit within the definition of information services. Vonage's services are closely tied to the provision of telecommunications services as defined by Congress, the courts and the FCC, but this Court finds that Vonage uses telecommunications services, rather than provides them."

Moreover, the Court held that the Communications Act preempts the state laws being applied by the MPUC. It wrote that "Because Congress has expressed an intent that services like Vonage's must remain unregulated by the Communications Act, and because the MPUC has exercised state authority to regulate Vonage’s service, the Court concludes that that state and federal laws conflict, and pre-emption is necessary."

The Court concluded by summarizing its holding: "it is clear that Congress has distinguished telecommunications services from information services. The purpose of Title II is to regulate telecommunications services, and Congress has clearly stated that it does not intend to regulate the Internet and information services. Vonage's services do not constitute a telecommunications service. It only uses telecommunications, and does not provide them. The Court can find no statutory intent to regulate VoIP, and until Congress speaks more clearly on this issue, Minnesota may not regulate an information services provider such as Vonage as if it were a telecommunications provider. What Vonage provides is essentially the enhanced functionality on top of the underlying network, which the FCC has explained should be left alone."

This case is Vonage Holdings Corporation v. Minnesota Public Utilities Commission, Leroy Koppendrayer, Gregory Scott, Phyllis Reha, and R. Marshall Johnson, in their official capacities as the commissioners of the Minnesota Public Utilities Commission, D.C. No. 03-5287 (MJD/JGL), Judge Michael Davis presiding.

10/16. The U.S. Court of Appeals (9thCir) issued its opinion [PDF] in Consorzio Prosciutto di Parma v. Truax. The Consorzio Prosciutto di Parma (Consortium) obtained a trademark registration for the mark "Parma Ham" from the U.S. Patent and Trademark Office. Subsequently, Chris Truax registered the domain name www.parmaham.com. The Consortium sought a transfer of the domain name to it.

Ultimately, the Consortium filed a complaint in U.S. District Court (SDCal) against Truax, and two companies that he controlled, alleging violation of the Anticybersquatting Consumer Protection Act, 15 U.S.C. § 1125(d), by registering and using the domain name in bad faith. The Consortium never obtained personal service upon Truax. Rather, pursuant to an order from the District Court, it served the California Secretary of State. Neither Truax nor his companies appeared. The Consortium obtained a judgment by default.

Then, Truax finally sought relief, but not through a motion in the District Court to set aside the judgment, but by an appeal to the Court of Appeals. The Court of Appeals dismissed the appeal. Truax's remedy is to file a motion for relief from judgment under Rule 60 of the Federal Rules of Civil Procedure in the District Court.

This case is Consorzio Prosciutto di Parma v. Domain Name Clearing Company, LLC, Internet News Portals Group, LLC, and Chris Truax, No. 02-56839, an appeal from the U.S. District Court for the Southern District of California, Judge John Rhoades presiding, D.C. No. CV-00920-JSR.

10/16. Brian Roehrkasse was named Press Secretary for the Department of Homeland Security (DHS). He has been the Deputy Press Secretary for the DHS since its creation in December of 2002. Before that, he was Assistant Director of Public Affairs at the Department of Transportation. Before that, he worked for the Presidential Inaugural Committee and the Bush Cheney 2000 Presidential Campaign. And before that, he worked for three years at NCG Porter Novelli in San Diego, California.

10/14. Sen. Rick Santorum (R-PA) introduced a series of bills pertaining to duties on the importation of electron guns for cathode ray tubes, plasma display panels, and liquid crystal display panels. See, S 1722, S 1723, and S 1724. These bills were referred to the Senate Finance Committee.

10/16. The General Accounting Office (GAO) released a report [40 pages in PDF] titled "Electronic Government: Planned e-Authentication Gateway Faces Formidable Development Challenges". This report concludes that "Although the original goal was for the e-Authentication gateway to be operational by September 2003, GSA has achieved few of its project objectives and recently extended the milestone for completing a fully operational system to March 2004. GSA has completed several important tasks, such as issuing a request for information and fielding a demonstration prototype of the gateway. However, other essential activities, such as developing authentication profiles -- requirements summaries that address the needs of the other 24 OMB e-government initiatives -- have not yet been fully addressed. Further, to meet the new milestone, GSA plans to compress the acquisition process for the operational gateway by awarding a contract by December 2003 for delivery of an operational gateway by March 2004. This accelerated schedule may be difficult to achieve. The modest progress achieved to date calls into question the likelihood that the project can successfully field an operational gateway, even within the revised schedule."

10/15. The Progress and Freedom Foundation (PFF) released a report [28 pages in PDF] titled "A Survey of Government-Provided Telecommunications: Disturbing Growth Continues Unabated", and written by Kent Lassman and Randolph May of the PFF. The report finds an increase in the number of states and municipalities entering the market as service providers.

The House will meet at 9:00 AM for legislative business. See, Republican Whip Notice.

8:15 AM - 2:30 PM. The McDonough School of Business (MSB) at Georgetown University will host a seminar titled "Seeking Efficiency, Investment and Competition: The Chief Economists Speak Out". The speakers will be the former Chief Economists of the Federal Communications Commission (FCC): Joseph Farrell, Gerald Faulhaber, Tom Hazlett, Michael Katz, Michael Riordan, William Rogerson, David Sappington, Howard Shelanski, and Simon Wilkie. Glenn Hubbard, former Chairman of the President's Council of Economic Advisors, will be the luncheon speaker. The price to attend is $50 (public), $30 (government), and free (students). For more information, contact Kelly Castellon at 202 687-3686. The MSB notice states that "Reporters wishing credentials to attend must contact Jessica Botta in advance at (202) 687-4080 or at jab92@georgetown.edu". Location: The Grand Hyatt, 1000 H Street, NW.

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in Sioux Valley Rural Television v. FCC, No. 02-1208. Judges Henderson, Tatel and Roberts will preside. Location: Courtroom 20, 333 Constitution Ave. NW.

RESCHEDULED FOR OCTOBER 30-31. 10:00 AM. The House Ways and Means Committee will continue its hearing titled "United States -- China Economic Relations and China's Role in the Global Economy". See, notice. Location: Room 1100, Longworth Building.

2:30 - 4:30 PM. Federal Communications Commission (FCC) International Bureau (IB) will hold a public forum to examine the methods and practices the FCC used in preparation for 2003 World Radioconference (WRC-03), and to assess whether the process can be improved. The FCC seeks public views on how the FCC could further facilitate public participation, increase transparency, intensify its international outreach and generally promote public interest goals in the WRC preparatory process. See, notice [PDF]. Location: FCC, Commission Meeting Room (Room TW-C305), 445 12th Street, SW.

3:00 PM. The U.S. District Court (DC) will hold a meeting and conference hearing in Conversent Communications v. AT&T, D.C. No. 1:2001-cv-1198. Location: Courtroom 14, 333 Constitution Ave. NW.

Deadline to submit requests to the Trade Policy Staff Committee (TPSC) to testify at its November 5, 2003 hearing on negotiations with Bahrain on a free trade agreement (FTA). The TPSC seeks comments and testimony to assist the Office of the U.S. Trade Representative (USTR) on many topics, including "Relevant trade-related intellectual property rights issues that should be addressed in the negotiations" and "Existing barriers to trade in services between the United States and Bahrain that should be addressed in the negotiations". See, notice in the Federal Register, August 25, 2003, Vol. 68, No. 164, at Pages 51062 - 51064.

Deadline for the Federal Trade Commission (FTC) to submit its brief to the U.S. Court of Appeals (10thCir) in FTC v. Mainstream Marketing Service, No. 03-1429. This is the telemarketers' constitutional challenge to the FTC's do not call registry. See, October 8, 2003 order [24 pages in PDF] staying the District Court's opinion, and setting an expedited schedule.

Day one of a three day conference titled "Networked Economy Summit". See, event web site and agenda. Press information: the summit is open to all media -- print, radio, Internet and TV. For day-of coverage at the event, please sign up at www.publicforuminstitute.org or call Mark Marich at Public Forum Institute at 202 467-2776. Location: Hyatt Regency Reston, Reston, VA.

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in Global Naps v. FCC, No. 02-1202. Judges Edwards, Garland and Williams will preside. Location: 333 Constitution Ave., NW.

10:00 AM - 3:00 PM. The Federal Communications Commission's (FCC) Technological Advisory Council will meet. See, notice in the Federal Register, October 2, 2003, Vol. 68, No. 191, at Pages 56840 - 56841. This meeting will focus on voice over internet protocol (VOIP). There will be no public presentations, but the FCC is accepting written comments. See, FCC notice. Location: FCC, 445 12th St. SW, Room TW-C305.

12:15 PM. The Federal Communications Bar Association's (FCBA) Common Carrier Practice Committee will host a brown bag lunch titled "Meet the 8th Floor Common Carrier/Wireline Competition Legal Advisors". The scheduled speakers are Christopher Libertelli, Matthew Brill, Jessica Rosenworcel, Daniel Gonzalez, and Lisa Zaina. RSVP to Cecelia Burnett at 202-637-8312 or cmburnett@hhlaw.com. Location: Hogan & Hartson, 555 13th St., NW, Lower Level.

6:00 - 8:15 PM. Intellectual Property Section of the D.C. Bar Association will host a CLE course titled "Transactions Involving Intellectual Property, Part I: Intellectual Property in Mergers and Acquisitions Including Tax Considerations". Prices vary. For more information, call 202 626-3488. Location: D.C. Bar Conference Center, 1250 H Street NW, B-1 level.

Day one of a two day conference hosted by the Department of Commerce's (DOC) Bureau of Industry and Security (BIS) titled "16th Annual Update Conference on Export Controls and Policy". Kenneth Juster, Under Secretary for BIS, will speak at 8:30 AM. See, notice and agenda. The price to attend ranges from $625 to $700. Location: Renaissance Hotel, 999 9th Street, NW.

Day two of a three day conference titled "Networked Economy Summit". See, event web site and agenda. Press information: the summit is open to all media -- print, radio, Internet and TV. For day-of coverage at the event, please sign up at www.publicforuminstitute.org or call Mark Marich at Public Forum Institute at 202 467-2776. Location: Hyatt Regency Reston, Reston, VA.

Deadline to submit comments to the National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) regarding its draft Special Publication 800-38C, Recommendation for Block Cipher Modes of Operation: the CCM Mode for Authentication and Confidentiality [PDF]. The NIST stated that "the CCM mode of the Advanced Encryption Standard (AES) algorithm is specified for the protection of sensitive, unclassified data. The CCM algorithm combines the counter (CTR) mode for confidentiality with the cipher block chaining-message authentication code (CBC-MAC) technique for authentication." Send comments to EncryptionModes@nist.gov.

7:30 AM - 12:45 PM. The Cato Institute will host a half day conference titled "Who Rules the Net? Debating Internet Jurisdiction and Governance". The speakers will include Rep. Christopher Cox (R-CA) (Chairman of the Republican House Policy Committee), Tim Wu (University of Virginia Law School), David Post (Temple University Law School), Bruce Kobayashi (George Mason University School of Law), Peter Trooboff (Covington & Burling), Gary Jackson (Quova), Robert Corn-Revere (Davis Wright Tremaine), Kurt Wimmer (Covington & Burling), Michael Greve (American Enterprise Institute), Jonathan Band (Morrison & Foerster), Marc Pearl (IT Policy Solutions), and Jeffrey Kovar (Deptartment of State). See, notice. To register, contact Krystal Brand at 202 789-5229 of techandsociety@cato.org. Location: Cato, 1000 Massachusetts Ave., NW.

10:00 AM. The Senate Judiciary Committee will hold a hearing to examine criminal terrorism investigations and prosecutions relating to national security. See, story titled "Senate Judiciary Committee to Hold Hearings on Combatting Terrorism and Protecting Liberties" in TLJ Daily E-Mail Alert No. 757, October 14, 2003. Press contact: Margarita Tapia (Hatch) at 202 224-5225 or David Carle (Leahy) at 202 224-4242. Location: Room 226, Dirksen Building.

Day two of a two day conference hosted by the Department of Commerce's (DOC) Bureau of Industry and Security (BIS) titled "16th Annual Update Conference on Export Controls and Policy". See, notice and agenda. The price to attend ranges from $625 to $700. Location: Renaissance Hotel, 999 9th Street, NW.

Day three of a three day conference titled "Networked Economy Summit". See, event web site and agenda. Press information: the summit is open to all media -- print, radio, Internet and TV. For day-of coverage at the event, please sign up at www.publicforuminstitute.org or call Mark Marich at Public Forum Institute at 202 467-2776. Location: Hyatt Regency Reston, Reston, VA.

10:00 AM. The Senate Judiciary Committee will hold a hearing on the nomination of Janice Brown to be a Judge of the U.S. Court of Appeals for the District of Columbia Circuit. Press contact: Margarita Tapia (Hatch) at 202 224-5225 or David Carle (Leahy) at 202 224-4242. Location: Room 226, Dirksen Building.

8:15 AM. The George Washington Law Review at the George Washington University Law School (GWULS) will host a day long conference titled "Internet Surveillance, Privacy & USA PATRIOT Act". To register, contact Amanda Johnson at ajohnson@law.gwu.edu. Location, GWULS, 2000 H Street, NW.

8:30 AM - 3:30 PM. The Association for Maximum Service Television will host an event titled "MSTV 17th Annual Fall Conference: Digital Covalence". The speakers will include Sen. Conrad Burns (R-MT), Will Nordwind (House Commerce Committee), Greg Rothschild (HCC), Bruce Franca (Deput Chief of the FCC's Office of Engineering and Technology), Paul Galante (Advisor to FCC Chairman Michael Powell), Johanna Mikes (Advisor to FCC Commissioners Adelstein), and Catherine Bohigian (Advisor to FCC Commissioner Kevin Martin). The price to attend is $300. Location: Park Hyatt Hotel, 24th & M Streets, NW.

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in AT&T v. FCC, No. 02-1221. Judges Ginsburg, Edwards, and Garland will preside. Location: 333 Constitution Ave. NW.

11:45 AM. The Cato Institute will host a panel discussion titled "Online Gambling: Lessons from the Internet and Illegal Bookmakers". The speakers will be Rep. Barney Frank (D-MA), Mike Knesevitch (Tradesports.com), Koleman Strumpf (UNC Chapel Hill), Raymond Sauer (Clemson University), and Justin Wolfers (Stanford Business School). See, notice and registration page. The event will be webcast. Lunch will be served after the program. Location: Cato, 1000 Massachusetts Ave., NW.

12:15 PM. The Federal Communications Bar Association's (FCBA) Cable Practice Committee will host a brown bag lunch. The speaker will be Jordan Goldstein, Senior Legal Advisor to FCC Commissioner Michael Copps. For more information, contact Catherine Bohigian at catherine.bohigian@fcc.gov. RSVP to: wendy@fcba.org Location: NCTA, 1724 Massachusetts Ave, NW.

4:00 PM. Roberta Kwall (DePaul University College of Law) will present a paper titled "In the Beginning ... The Impact of Genesis on Innovation". See, notice. For more information, contact Robert Brauneis at 202 994-6138 or rbraun@law.gwu.edu. Location: George Washington University Law School, Faculty Conference Center, Burns Building, 5th Floor, 716 20th Street, NW.

TIME? Joseph Liu (Boston College of Law) will give a lecture titled "Rationalizing Trademark Defenses". This is a part of Georgetown University Law Center's (GULC) Colloquium on Intellectual Property & Technology Law Series. For more information, contact Julie Cohen at 202 662-9871. Location: GULC, 600 New Jersey Ave., NW.

Deadline to submit reply comments to the Federal Communications Commission (FCC) regarding its notice of proposed rulemaking (NPRM) pertaining to its rules governing the provision of air ground telecommunications services on commercial airplanes in order to enhance the options available to the public. The FCC adopted this NPRM on April 17, 2003, and released it on April 28, 2003. This is WT Docket No. 03-103. See, notice in the Federal Register, July 25, 2003, Vol. 68, No. 143, at Pages 44003 - 44011.

Deadline to submit requests to the Internal Revenue Service (IRS) to speak at its October 23, 2003 hearing regarding its notice of proposed rulemaking (NPRM) regarding computation and allocation of the credit for increasing research activities for members of a controlled group of corporations or a group of trades or businesses under common control. The rules implement the research and development tax credit codified at 26 U.S.C. § 41. See, notice in the Federal Register, July 29, 2003, Vol. 68, No. 145, at Pages 44499 - 44506.

7:30 AM. The Federal Communications Bar Association's (FCBA) will host a breakfast titled "New Horizons in the Digital Migration". The speaker will be FCC Chief of Staff Bryan Tramont. The price to attend is $35.00. Register by Tuesday, October 21, 2003. See, registration page. Location: J.W. Marriott Hotel, 1331 Pennsylvania Ave., NW.

8:00 AM - 3:30 PM. The National Science Foundation's (NSF) Advisory Committee for Computer and Information Science and Engineering will hold a meeting. See, notice in the Federal Register, September 22, 2003, Vol. 68, No. 183, at Page 55067. Location: NSF, 4201 Wilson Blvd., Room 1235, Arlington, VA.

Deadline for the Office of Management and Budget (OMB) to submit comments to the Federal Communications Commission (FCC) in response to its notice of proposed rulemaking (NPRM) regarding telecommunication relay services (TRS) and speech-to-speech services for individuals with hearing and speech disabilities. This is CG Docket No. 03-123. See, notice in the Federal Register, August 25, 2003, Vol. 68, No. 164, at Pages 50993 - 50998.