Powell and Adelstein Address FCC Spectrum
Related Proceedings |
5/25. Federal Communications Commission
(FCC) Commissioner
Jonathan Adelstein gave a
speech
[3 pages in PDF] at an event titled "Wireless Internet Service Provider Forum"
held at the South Dakota School of Mines and Technology in Rapid City, South Dakota. He
gave a quick overview of the main FCC proceedings pertaining to use of spectrum
for wireless internet service. FCC Chairman
Michael Powell gave a
speech [4 pages in PDF] at the FCC's Wireless Broadband Forum on May 19 at
which he reviewed various FCC spectrum related proceedings.
Adelstein (at right) said that "I am a big believer in the power of broadband. It
is crucial to the economic development of our region. Broadband encourages the
freedom of ideas, bridges distances, and brings people together. And at the FCC,
our responsibility is to encourage broadband deployment across the country
through new technologies, innovation, and investment."
"We need to find a balance in spectrum policy that recognizes the value in
unlicensed and licensed services; large and small license areas; and different
block sizes of spectrum", said Adelstein. He added that "We need to look
at power levels and spectrum band plans and
other ideas to see if there are opportunities to better enable carriers to
expand their deployments and provide even more advanced services to rural
America."
Powell said that "The great regulatory difficulty over the past
one hundred years is because we have always had just one wire to the home. And
because of that one wire you had enormous difficulties of monopoly control,
bottleneck facilities, the pricing of those facilities, and how to get that one
wire to every home in the Unites States."
"We have a historic opportunity here not to repeat that world."
He added that there are already two broadband competitors, cable and DSL, but
"the Holy Grail is when you get to three. Magical things happen in competitive
markets when there are three."
Powell continued that "The FCC has recognized for years now that
spectrum is vital to realizing this vision and that it had to have a bolder more
enlightened national spectrum policy. From day one, we have been working hard to
change the traditional ``command and control´´ approach that does not respect innovation
and the need to
move spectrum to its highest and best uses. We have been working hard to provide
a spectrum policy that is much more facilitating of more platforms, more
broadband platforms, more innovation, more choice and more flexibility."
He concluded, is that "our view is
that more spectrum, more flexibility and more innovation will equal more
broadband, and a brighter information landscape, and that’s the core of our
policy."
Powell and Adelstein discussed
several FCC proceedings, including those pertaining to secondary markets for
spectrum, cognitive radios, use by unlicensed devices of TV spectrum,
service rules for the 1710-1755 and 2110-2155 MHz bands, and rules for the 70,
80 & 90 GHz bands.
Secondary Markets for Spectrum. Adelstein stated that "We
have to be more creative with a term I have coined
``spectrum facilitation.´´ That means stripping away barriers,
regulatory or economic, to get spectrum into the hands of operators serving consumers at the
most local levels. That is why I supported new guidelines to facilitate a more
robust secondary market. We removed significant obstacles and provided a framework for
allowing licensees to lease spectrum more easily."
Powell stated that "We have promoted the use of secondary
markets for people that have more commercial flexibility in obtaining spectrum
and allocating spectrum. Further, our spectrum leasing initiative will make
spectrum more easily accessible to wireless operators interested in serving
niche markets."
See,
Report and Order and Further Notice of Proposed Rulemaking [198 pages in
PDF] in proceeding titled "In the Matter of Promoting Efficient Use of Spectrum
Through Elimination of Barriers to the Development of Secondary Markets". This
item is FCC 03-113 in WT Docket No. 00-230.
See also,
story
titled "FCC Adopts Order Allowing Some Secondary Leasing of Spectrum" in
TLJ Daily E-Mail
Alert No. 663, May 16, 2003; and story titled "FCC Finally Releases R&O and
FNPRM in Secondary Spectrum Markets Proceeding" in
TLJ Daily E-Mail
Alert No. 755, October 8, 2003.
Cognitive Radios. Adelstein stated that "We also initiated
a rulemaking on cognitive radios -- smart radios that can literally leapfrog the
technical and legal problems that currently hamper many of
today’s spectrum access opportunities. I was particularly pleased with our proposal in
that item to allow higher power operation for unlicensed devices operating in rural and other
areas of low spectrum use." Powell stated that "We’re working very aggressively on new
technologies like smart radio that will provide really new and creative
technological solutions to spectrum scarcity and can open up more possibilities.
We're working to open the door for these technologies so as not to shut out any
of their tremendous potential."
See,
Notice of Proposed Rule Making and Order [53 pages in PDF] in its proceeding
titled "In the Matter of Facilitating Opportunities for Flexible, Efficient, and
Reliable Spectrum Use Employing Cognitive Radio Technologies". This is FCC
03-322 in ET Docket No. 03-108. See also, story titled "FCC Releases Cognitive
Radio Technology NPRM" in
TLJ Daily E-Mail
Alert No. 808, December 31, 2003.
Unused TV Spectrum. Adelstein stated that "I have worked
with the Chairman to identify new
spectrum for unlicensed wireless ISPs. And now we're even thinking about
allowing operations in unused television spectrum bands." See,
Notice of
Proposed Rulemaking [38 pages in PDF] in the proceeding is titled "In the Matter
of Unlicensed Operation in the TV Broadcast Bands Additional Spectrum for Unlicensed
Devices Below 900 MHz and in the 3 GHz Band". This NPRM is FCC 04-113 in ET Docket
Nos. 04-186 and No. 02-380. See also,
story
titled "FCC Adopts NPRM Regarding Unlicensed Use of Broadcast TV Spectrum"
in TLJ Daily E-Mail Alert No. 898, May 14, 2004; and story titled "FCC Releases
NPRM Regarding Unlicensed Use
of TV Spectrum" in TLJ Daily E-Mail Alert No. 905, May 26, 2004.
Service Rules for the 1710-1755 and 2110-2155 MHz Bands. Adelstein
stated that "the FCC continues to take steps to speed deployment of
licensed wireless broadband services. We recently adopted service and technical rules for 90
MHz of new spectrum, which many expect will be the future home for third generation or 3G
mobile wireless systems. In that proceeding, I pushed for an extra group of smaller
license areas to make it easier for companies in South Dakota and other rural states to get licenses
that cover their local markets. So instead of there being only six licenses for the entire
country for one of the blocks of spectrum, there are now three licenses for South Dakota alone
-- for Rapid City, Aberdeen, and Sioux Falls. This should greatly improve access by those
providers who want to serve local areas, particularly community-based providers."
Powell stated that "Just last year the Commission allocated an
additional ninety megahertz of spectrum that can be used for advanced wireless
services. The flexible rules for this band were established in October and we
hope to auction the spectrum by sometime next year."
See,
Report and
Order [83 pages in PDF] in the proceeding titled "In the Matter of Service Rules
for Advanced Wireless Services in the 1.7 GHz and 2.1 GHz Bands". This item is FCC
03-251, in WT Docket No. 02-353. See also, story titled "FCC Announces Service Rules
for 3G Spectrum" in
TLJ Daily E-Mail
Alert No. 761, October 20, 2003.
70, 80 & 90 GHz Bands. Adelstein said that "last year, I
pushed for special rules for the spectrum in the 70/80/90 GHz range that can provide for
fiber-like first and last mile connections. Because of the unique characteristics of this
spectrum, we decided not to auction it, which will make it a whole lot easier for licensees,
particularly those in rural America, to get access to the spectrum."
Powell stated that the FCC "has established an innovative
framework for allowing commercial use of spectrum in those bands. These bands
have been opened up to allow for the use of more innovative technologies that
will lead to new products and services being available, such as high-speed,
point-to-point wireless LANS and offerings that will increase broadband
services."
See,
Report
and Order [66 pages in PDF] in proceeding titled "In the Matter of Allocations
and Service Rules for the 71-76 GHz, 81-86 GHz and 92-95 GHz Bands". This item is
FCC 03-248, in WT Docket No. 02-146. See also, story titled "FCC Announces Rules
for Licensing 71-76 GHz, 81-86 GHz, and 92-95 GHz Bands" in
TLJ Daily E-Mail
Alert No. 761, October 20, 2003.
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1st Circuit Construes Attorneys Fees
Shifting Section of Copyright Act |
5/21. The U.S. Court of Appeals
(1stCir) issued its
opinion in Invessys, Inc. v. McGraw-Hill, a case involving the
attorneys fees shifting provisions of the Copyright Act, codified at
17 U.S.C. § 505.
McGraw-Hill negotiated a contract with Invessys, Inc., and its sole
shareholder and employee, Peter Hodges, for the sale of certain software and a
software related business. Initially, the parties negotiated for the sale of a
company named Micropal Accounting Portfolio Services, Inc. (MAPSI). MAPSI's
primary business was the licensing and support of a program named MaPS. Hodges
then asked that earlier DOS versions of the program be included in the
transaction. McGraw-Hill agreed. He also asked that an unrelated program named
AIM be included. The contract included the AIM program. After execution of the
contract, Hodges asked for transfer of the AIM program. McGraw-Hill refused,
asserting the its inclusion in the contract was a scrivener's error.
Hodges and Invessys filed a complaint in
U.S. District Court (DMass) against
McGraw-Hill alleging breach of contract, fraud, conversion, and other state law
claims. The complaint also included a copyright infringement claim. The jury
found that the inclusion of the AIM program was a scrivener's error. Thus,
McGraw-Hill prevailed. The Court then awarded McGraw-Hill $200,000 in attorney's
fees and $28,583.78 in costs, pursuant to Section 505.
Had Hodges plead only state law claims, McGraw-Hill would not have been able
to recover its attorneys fees and costs.
Section 505 of the Copyright Act provides, in full, that "In any civil action
under this title, the court in its discretion may allow the recovery of full
costs by or against any party other than the United States or an officer
thereof. Except as otherwise provided by this title, the court may also award a
reasonable attorney's fee to the prevailing party as part of the costs."
The Appeals Court affirmed the District Court. Notwithstanding the
circumstance that the case and trial primarily revolved around the state law
contract issue of scrivener's error, and notwithstanding the circumstance that
copyright infringement was only one of many counts in the complaint, the Appeals
Court held that the plaintiffs could rely upon Section 505 to recover all of
their attorneys fees and costs.
This case is Invessys, Inc. and Peter Hodges v. McGraw-Hill Companies,
Ltd., et al., U.S. Court of Appeals for the 1st Circuit, App. Ct. No.
03-1954, an appeal from the U.S. District Court for District of Massachusetts,
Judge George O'Toole presiding.
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Privacy Groups Comment on Proposed Rules
Regarding Use of Medical Information in Financial System |
5/25. The Electronic Privacy Information
Center (EPIC), and other groups, filed a
comment [22
pages in PDF] with the Federal Deposit Insurance
Corporation (FDIC) and other financial regulatory agencies
in their rulemaking proceeding to implement Section 411 of the the Fair and
Accurate Credit Transactions Act of 2003 (FACT Act), which pertains to medical
information.
The FACT Act was
HR 2622.
It was enacted by the Congress in 2003, and signed by the President on December 4,
2003. It became Public Law No. 108-159. See also, President Bush's
signing speech and White House press office
summary.
Section 411 of the Act pertains to "Protection
of Medical Information in the Financial System". It provides that "A
consumer reporting agency shall not furnish for employment purposes, or in
connection with a credit or insurance transaction, a consumer report that
contains medical information about a consumer, unless" certain conditions are
met.
It also provides that "a creditor shall not obtain or use medical
information pertaining to a consumer in connection with any determination of the
consumer's eligibility, or continued eligibility, for credit", except as
provided by regulation. The Act also restricts redisclosure and sharing of
medical information.
The FDIC and other financial regulatory agencies published a
notice
in the Federal Register that describes, and sets a comment deadline for, the
agencies' proposed rules implementing Section 411. See, Federal Register, April
28, 2004, Vol. 69, No. 82, at Pages 23379 - 23407.
The EPIC wrote in response that "The Agencies should also be
aware that provisions (no matter how limited) that allow creditors to obtain and
use medical information have the potential to create a new form of consumer
reporting that focuses exclusively on health information. The justification
of collection health information on all consumers would be that the information
can be used in some instances, as the final regulation will demonstrate. Those
with an incentive to collect health information might well be beyond the scope
of existing regulation and may be able to use the information for other
purposes. It would be an extremely unfortunate result if a provision intended to
allow extremely narrow use of medical information ended up creating a new,
massively invasive consumer reporting activity for that information. The
Agencies should be aware of this possibility, and they should take steps
wherever possible to prevent or discourage creditors from obtaining medical
information from new or unregulated sources."
The deadline for comments is May 28, 2004. This is the FDIC's RIN 3064-AC8.
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Washington Tech Calendar
New items are highlighted in red. |
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Thursday, May 27 |
The House is in recess. The House
will next convene at 2:00 PM on Tuesday, June 1. See,
Republican Whip Notice.
The Senate is in recess. The Senate will next convene at
10:00 AM on June 1. At 2:15 PM, the Senate will resume consideration of
the motion to proceed to
S 2062, the
"Class Action Fairness Act of 2004".
The Supreme Court is in recess. It will return on June 1.
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Friday, May 28 |
Deadline to submit comments to the Federal
Communications Commission (FCC) in response to its
notice of proposed rulemaking (NPRM)
[97 pages in PDF] regarding issues relating to services and applications
utilizing internet protocol (IP). This NPRM is FCC 04-28 in WC Docket No.
04-36. See,
notice in the Federal Register, March 29, 2004, Vol. 69, No. 60, at Pages
16193 - 16202. See also, story titled "FCC Adopts NPRM Regarding Regulation of
Internet Protocol Services" in
TLJ Daily E-Mail
Alert No. 837, February 16, 2004.
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Monday, May 31 |
Memorial Day. The FCC and other federal agencies will be closed. There
will be no issue of the TLJ Daily E-Mail Alert.
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Tuesday, June 1 |
The House and Senate will return from the Memorial Day recess.
Day one of a four day conference and expo hosted by the
Wireless Communications Association International
(WCA) titled "WCA 2004". See, agenda.
Location: Marriott Wardman Park Hotel, 660 Woodley Park Road, NW.
Deadline to submit reply comments to the
Federal Communications Commission (FCC) in
response to its notice of proposed rulemaking (NPRM) regarding broadband
over powerline systems. The FCC adopted this NPRM on February 12, 2004.
See, story titled "FCC Adopts Broadband Over Powerline NPRM" in
TLJ Daily E-Mail
Alert No. 836, February 13, 2004. The FCC released the text of this NPRM
on February 23, 2004. This NPRM is FCC 04-29 in ET Docket Nos. 03-104 and
04-37. See,
notice in the Federal Register, March 17, 2004, Vol. 69, No. 52, at Pages
12612-12618.
Deadline to submit reply comments to the Federal Communications Commission
(FCC) in response to its
Notice of Proposed Rule Making and Order [53 pages in PDF] regarding
cognitive radio technologies and software defined radios. This item is FCC
03-322 in ET Docket No. 03-108 and ET Docket No. 00-47. See,
notice in the Federal Register, February 17, 2004, Vol. 69, No. 31, at Pages
7397 - 7411, and story titled "FCC Releases Cognitive Radio Technology NPRM"
in TLJ Daily E-Mail
Alert No. 808, December 31, 2003.
Deadline to submit comments to the
Federal Trade Commission (FTC) in response to its
notice of proposed rulemaking (NPRM) regarding amending the Telemarketing Sales Rule
(TSR) to revise the fees charged to entities accessing the National Do Not Call Registry.
See,
notice in the Federal Register, April 30, 2004, Vol. 69, No. 84, at Pages
23701 - 23705.
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Wednesday, June 2 |
9:30 - 10:30 AM. The
Federal Communications Commission's (FCC)
Media Security and Reliability Council will meet. See, FCC
notice [PDF] of May 26, 2004, and
notice in the Federal Register, April 30, 2004, Vol. 69, No. 84, at Page
23758. Location: FCC, Room TW-C305, 445 12th St., SW.
9:30 AM - 4:30 PM. The Judges Panel of the Malcolm Baldrige National Quality Award will hold a closed meeting. See,
notice
in the Federal Register, May 4, 2004, Vol. 69, No. 86, at Page 24571.
Location: National Institute of Standards and Technology, Building 222,
Red Training Room, Gaithersburg, MD.
10:00 AM. The House Commerce
Committee's Subcommittee on Telecommunications and the Internet will hold
a hearing titled "Advancing the DTV Transition: An Examination of the FCC
Media Bureau Proposal". The hearing will be webcast. Press contact:
Jon Tripp (Barton) at 202-225-5735 or Sean Bonyun (Upton) at 202-225-3761. Location: Room 2123,
Rayburn Building.
1:30 PM. The
House Government Reform Committee's Subcommittee on Technology,
Information Policy, Intergovernmental Relations and the Census will hold an
oversight hearing titled "Who Might be Lurking at Your Cyber Front Door? Is
Your System Really Secure? Strategies and Technologies to Prevent, Detect and
Respond to the Growing Threat of Network Vulnerabilities." Location: Room
2154, Rayburn Building.
Day two of a four day conference and expo hosted by the
Wireless Communications Association International
(WCA) titled "WCA 2004". At 8:30 - 10:30, AM Federal Communications Commission (FCC)
Commissioners Kathleen
Abernathy and
Jonathan Adelstein, and NTIA acting Director Michael Gallagher are scheduled to speak
on a panel titled "VoIP As A Frontier For Wireless Growth". At 11:30 AM
- 12:45 PM, Ed Thomas (Chief of the FCC's
Office of Engineering and Technology), Tom Hazlett (a former
Chief Economist of the FCC), and others are scheduled to speak on "The FCC's Interference
Temperature Plan: Threat or Opportunity?" at 10:45 AM. See, agenda.
Location: Marriott Wardman Park Hotel, 660 Woodley Park Road, NW.
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Thursday, June 3 |
8:30 AM - 3:00 PM. The
National Institute of Standards and Technology's
(NIST) Malcolm Baldrige National Quality Award Board of Overseers will hold a
public meeting. See,
notice in the Federal Register, May 14, 2004, Vol. 69, No. 94, Page 26808
- 26809.
9:00 AM - 12:30 PM. The National
Institute of Standards and Technology's (NIST) will hold a closed meeting to provide
a briefing on Special Publication 800-37, titled "Guide for the Security Certification
and Accreditation of Federal Information Systems". For more information,
contact Angela Ellis at 301 975-3881 or
angela.ellis@nist.gov. Location: Green Auditorium, NIST Main Campus,
Gaithersburg, MD.
9:30 AM. The House Commerce
Committee will meet to markup
HR 3266, the
"Faster and Smarter Funding for First Responders Act of 2003" and HR __,
the "Satellite Home Viewer Extension and Reauthorization Act". The
meeting will be webcast. Press contact: Larry Neal or Jon Tripp at 202 225-5735. Location:
Room 2123, Rayburn Building.
12:00 NOON - 1:30 PM. The DC Bar
Association's Intellectual Property Law Section and Trade Secrets Committee will
host a program titled "Licensing Trade Secrets And Know-How: Realizing Value
From IP's Forgotten Species". The speaker will be
Ronald Bleeker of the
law firm of Finnegan Henderson. Prices vary. See,
notice.
For more information, contact 202 626-3463. Location: D.C. Bar Conference Center, B-1
Level, 1250 H Street, NW.
6:00 - 8:00 PM. The
Federal Communications Bar Association (FCBA)
will host an event titled "70th Anniversary of the Communications Act".
See, registration form [PDF].
Prices vary. Location: Washington Hilton, 1919 Connecticut Ave., NW.
Day three of a four day conference and expo hosted by the
Wireless Communications Association International
(WCA) titled "WCA 2004". At 8:30 AM, there will be a panel
discussion titled "Unlocking MDS & ITFS Spectrum Values With Regulatory Reform".
The speakers will be Paul Sinderbrand (Wilkinson Barker Knauer), Bryan Tramont
(FCC Chief of Staff), a representative of the FCC Wireless Telecommunications
Bureau, Patrick Gossman (Chairman of the National ITFS Association), and Todd
Rowley (Sprint). At 9:30 AM, there will be a panel discussion titled "FCC
View From the Eighth Floor". The speakers will be Barry Ohlson (Senior Legal
Advisor to FCC Commissioner Jonathan Adelstein), Samuel Feder (Legal Advisor
to FCC Commissioner Kevin Martin), Paul Margie (Legal Advisor to FCC
Commissioner Michael Copps), Lauren Van Wazer (Chairman of the FCC Broadband
Wireless Task Force), and Mary Greczyn (Freedom Technologies). See,
agenda.
Location: Marriott Wardman Park Hotel, 660 Woodley Park Road, NW.
Deadline to submit comments to the
Federal Communications Commission (FCC) in
response to its notice of propose rulemaking (NPRM) regarding imposing
mandatory minimum Customer Account Record Exchange (CARE) obligations on all
local and interexchange carriers. This item is FCC 04-50 in CG Docket No.
02-386. See,
notice in the Federal Register, April 19, 2004, Vol. 69, No. 75, at Pages
20845 - 20851.
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DC Circuit Rules in Patent Malpractice Case |
5/21. The U.S. Court of Appeals (DCCir)
issued its
opinion [14 pages PDF] in Kaempe v. Myers, a case involving
claims of conversion of a patent, and malpractice in processing a patent
application. The Appeals Court affirmed the District Court's judgment for the
attorney.
George Myers provided legal services to Staffan Kaempe in connection
with processing a patent application. Subsequently, Kaempe filed a complaint in
U.S. District Court (DC) against Myers and his current and former law firms,
alleging conversion of the patent by assignment, and legal malpractice. The
District Court ruled for Myers on both counts. The Court of Appeals affirmed.
While the District Court had held that an action for conversion of patent
rights is not recognized under District of Columbia law, the Appeals Court held
that it is unclear whether DC law recognizes such a claim. It held that even if the
claim is recognized, the facts of the case are that there was no assignment, and hence,
no conversion. The Appeals Court also affirmed the District Court's summary judgment
for Myers on the malpractice claim because Kaempe failed to provide expert testimony
in support of his malpractice action.
This case is Staffan Kaempe v. George Myers, et al., U.S.
Court of Appeals for the District of Columbia, App. Ct. No. 03-7037, an appeal
from the U.S. District Court for the District of Columbia, D.C. No. 01cv02636.
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People and Appointments |
5/26. Comcast announced in a
release "preliminary results from the company's 2004 annual meeting of
shareholders in which all board members were re-elected overwhelmingly, each
receiving more than 92% of the vote; all company-sponsored proposals were
adopted overwhelmingly, with more than 96% of the vote; and all shareholder
proposals were defeated". Comcast also announced that P/CEO Brian Roberts "has
become chairman of the company's board of directors, following C. Michael
Armstrong's election to retire as non-executive chairman".
5/24. Verizon announced that Tom Tauke has been named EVP --
Public Affairs and Communications. He will "oversee all internal and external
communications, reputation management, philanthropy and issues management for Verizon,
and will serve as a member of the company's Corporate Leadership Council". He had
already been responsible for policy advocacy at the local, state, federal and international
levels. Tauke represented an Iowa Congressional district from 1979 through 1991. He was a
member of the House Commerce Committee and
its Telecommunications Subcommittee.
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More News |
5/24. The Recording Industry Association of
America (RIAA) announced that it filed lawsuits against "493 additional
illegal file sharers" in various U.S. District Courts, alleging copyright
infringement. Cary Sherman, President of the RIAA, stated that "Our continuing
objective is to send a message of deterrence, protect the rights of property
owners, and foster environment where the legitimate marketplace, both online and
at retail, can flourish". See, RIAA
release.
5/26. The Financial and Banking Information
Infrastructure Committee (FBIIC) and the
Financial Services Sector Coordinating Council
(FSSCC) released a
report [8 pages in PDF] on the fraudulent practice of phishing. The phishing
perpetrator sends fraudulent e-mail to consumers that falsely states that is
from a legitimate company, financial institution or government agency, and
directs consumers to visit a spoofed website, which in turn, requests consumers
to enter personal information, which is then used for identity theft. See,
Treasury Department
release.
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