9th Circuit Rules Federal Courts Lack
Jurisdiction Over Suit by Homeowners Association Against a Condo Owner for
Placement of Satellite Dish |
7/12. The U.S. Court of Appeals
(9thCir) issued its
opinion [17 pages in PDF] in Opera Plaza v. Hoang, a case
involving federal jurisdiction over disputes regarding the placement of
satellite dishes. The Appeals Court affirmed the District Court's dismissal of a
claim brought by a homeowners association seeking to enforce its dish policy.
The Opera Plaza Residential Parcel Homeowners Association (Opera Plaza) is a
homeowners association that adopted a policy prohibiting the placement of satellite
dishes in common areas of the condominium complex. Tuan and Betty Hoang own a condo
within the premises of Opera Plaza. They installed a satellite dish on the exterior
of their condo in a common area.
Opera Plaza filed complaint in
U.S. District Court (NDCal) against
the Hoang's in which they alleged three causes of action. First, they sought
declaratory relief that the Opera Plaza satellite dish policy is valid. Second,
they sought injunctive relief requiring the Hoangs to remove their dish. Third,
they sought damages for breach of contract.
Diversity of citizenship is lacking. Thus, Opera Plaza
asserted that there exists federal question jurisdiction. Specifically, it cited § 207
of the Telecommunications Act of 1996, which gave the
Federal Communications Commission (FCC)
authority to regulate over the air reception devices, including satellite dishes.
The District Court dismissed the complaint for lack of subject
matter jurisdiction. This appeal followed. The Appeals Court affirmed.
The Congress enacted the Telecommunications Act of 1996
(Public
Law No. 104-104) with language pertaining to over the air reception devices
(OTARD). § 207 of the Act provides that "Within
180 days after the date of enactment of this Act, the Commission shall, pursuant
to section 303 of the Communications Act of 1934, promulgate regulations to
prohibit restrictions that impair a viewer's ability to receive video
programming services through devices designed for over-the-air reception of
television broadcast signals, multichannel multipoint distribution service, or
direct broadcast satellite services." This section is codified at
47 U.S.C. § 303
notes.
In addition, § 205 of the Act amends
47 U.S.C. § 303
(which lists the powers of the Commission), to add a new subsection 303(v). It
provides that the FCC shall "Have exclusive jurisdiction to regulate the
provision of direct-to-home satellite services. As used in this subsection, the
term ``direct-to-home satellite services´´ means the distribution or
broadcasting of programming or services by satellite directly to the
subscriber's premises without the use of ground receiving or distribution
equipment, except at the subscriber's premises or in the uplink process to the
satellite."
The FCC promptly promulgated, and has since amended, its implementing
regulation. It is codified at 47 C.F.R. § 1.4000. The FCC also maintains a shorter
summary in its web site
titled "Fact Sheet: Over-the-Air Reception Devices Rule".
The Appeals Court held that "§ 207 of the Telecommunications Act
of 1996 ... does not confer jurisdiction on the federal courts to hear a routine
suit by a condominium homeowners association to enforce its rules against the
placement of a satellite television dish in common areas."
It further held that "no sufficient federal question exists as
to any of Opera Plaza's three causes of action, and as a result affirm the
district court’s conclusion that Opera Plaza’s complaint did not raise
substantial questions of federal law sufficient to confer federal jurisdiction."
The Court reasoned that neither the statute nor the FCC's implementing
regulation creates a private right of action. Moreover, all three of Opera
Plaza's claims are state law claims. § 207 of the Act, and the FCC's regulation,
are not raised by the complaint. Rather, they might be asserted by the Hoang's
as defenses; but, this is insufficient to provide federal question jurisdiction.
The Court also wrote that Opera Plaza's remedy is to bring suit in state court.
Hypothetically, the Appeals Court might have reached the opposite
determination if the Hoangs had filed the complaint in federal court. That is,
if Opera Plaza had removed the Hoang's dish, fined the Hoangs, or otherwise
prompted the Hoangs to file suit, then they might have plead that any action
taken by Opera Plaza was in reliance upon a state law that was preempted by §§
205 and 207 the Telecommunications Act, and that Opera Plaza violated the FCC
OTARD regulation. If this had been the nature of the case, then the Court might
have found that the complaint did raise a substantial question of federal law,
and ruled that the federal court did possess subject matter jurisdiction.
Perhaps there is another unwritten rationale underlying the decisions of both
the District Court and the Appeals Court. That is, federal courts do not want to
devote their resources and talents to resolving nickel and dime disputes
involving pots, pans, and dishes.
This case is Opera Plaza Residential Parcel Homeowners Association v. Tuan
Hoang and Betty Hoang, U.S. Court of Appeals for the 9th Circuit, App. Ct.
No. 02-16682, an appeal from the U.S.
District Court for the Northern District of California, D.C. No.
CV-02-01084-WHA, William Alsup presiding. Judge
Barry Silverman wrote the opinion of the three judge panel, in which Judges Jay
Bybee and Michael Hawkins joined.
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PR China Agrees to Stop Preferential Tax
Treatment for Domestic Producers of Integrated Circuits |
7/9. The Office of the U.S. Trade
Representative (USTR) announced in a
release [2 pages in
PDF] that the U.S. and the People's Republic of China (PRC) "have agreed on a
resolution to their dispute at the World Trade Organization (WTO) regarding
China's tax refund policy for integrated circuits."
On March 17, 2004 the U.S. filed a complaint with the
World Trade Organization (WTO) against the PRC
stating that the PRC's preferential tax treatment of integrated circuits
produced in the PRC is discriminatory, and a violation of the PRC's WTO
obligations. See,
story titled
"US Complains to WTO About PR China's Tax Preference for
Domestic Producers of Integrated Circuits" in
TLJ Daily E-Mail Alert No.
859,
March 19, 2004. See also, story titled "Japan Joins US in Complaining to WTO
About China's Discriminatory Tax on Integrated Circuits" in
TLJ Daily E-Mail
Alert No. 869, April 5, 2004.
The USTR release states that "The resolution will ensure full
market access and national treatment for U.S. integrated circuits in China, the
world's fastest growing semiconductor market and an export market worth over $2
billion to American manufacturers and workers. Today's agreement resolves the
first WTO case filed against China by any WTO Member."
It adds that "Effective immediately, China will not certify any
new semiconductor products or manufacturers for eligibility for VAT refunds.
China will no longer offer VAT refunds that favor semiconductors designed in
China. And, by April 1 of next year, China will stop providing VAT refunds on
Chinese-produced semiconductors to current beneficiaries. Under China's tax
policy, U.S. exporters of integrated circuits to China paid up to five times as
much tax as local Chinese manufacturers. These policies disadvantaged U.S.
manufacturers as well as U.S. firms that design integrated circuits."
Robert Zoellick (at right) stated at a press conference that "In March
of this year President Bush authorized us to file the first ever case against
China in the World Trade Organization, charging that China was unfairly
providing special tax treatment to semiconductors produced in China and
discriminating against U.S-made integrated circuit chips. Today, less than four
months after filing this case I am pleased to announced that effective
immediately China will not certify any new semi-conductor products or
manufacturers for eligibility for the value added tax or VAT refunds. China will
no longer offer VAT tax refunds that favor semiconductors designed in China and,
by April 1 of next year, China will stop providing VAT tax refunds on Chinese
produced semi-conductors to current beneficiaries." See,
transcript [PDF].
William Archey, P/CEO of the American
Electronics Association (AeA), stated in a
release that
"The importance of today's announcement is two-fold for the high-tech industry
... First, it will bring this particular tax regime into compliance with WTO obligations,
as it is critical that the country with the fastest growing
tech sector abide by those obligations.
He added that "more broadly, with
the rapid evolution in recent years in both China's economy and economic policy,
it is inevitable that China might occasionally adopt policies aimed at
conferring special benefits on domestic production. When that occurs, it is
important that every attempt be made to bring such a large and important trading
partner back into compliance with international obligations. That's exactly
what the SIA petition and Ambassador Zoellick and his team have successfully
accomplished."
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FCC Adopts Report and Order Regarding
Interference in the 800 MHz Band |
7/8. The Federal Communications Commission
(FCC) adopted, but did not release, a report and order that addresses the
problem of interference to 800 MHz public safety
communications systems from Commercial Mobile Radio Services (CMRS) providers
operating systems on channels in close proximity.
FCC staff briefly summarized the item at the FCC's July 8 meeting.
Four Commissioners wrote separate statements. The FCC issued a
press release [4
pages in PDF] describing this
item.
FCC Chairman Michael
Powell explained the nature of the problem in a separate
statement [PDF].
"Because of the interleaved nature of the band and the close proximity of
incompatible technologies, over the years, these systems have encountered
escalating amounts of interference from commercial cellular systems." See also,
press statement of Chairman Powell.
The FCC release states that the report and order provides that
Nextel will return its interference causing
spectrum, and in return, will be given 10 megahertz of spectrum, located at
1910–1915 MHz and 1990-1995 MHz, subject to further conditions.
The FCC release provides this explanation. "To
accomplish the reconfiguration, the Commission will require Nextel to give up
rights to certain of its licenses in the 800 MHz band and all of its licenses in
the 700 MHz band. In exchange, the Commission will modify Nextel’s licenses to
provide the right to operate on two five-MHz blocks in a different part of the
spectrum -- specifically 1910–1915 MHz and 1990-1995 MHz -- conditioned on
Nextel fulfilling certain obligations specified in the Commission's decision."
It continues that "The Commission determined that the overall value of the
1.9 GHz spectrum rights is $4.8 billion, less the cost of relocating incumbent
users. In addition, the Commission concluded that it would credit to Nextel the
value of the spectrum rights that Nextel will relinquish and the actual costs
Nextel incurs for to relocate all incumbents in the 800 MHz band. To the extent
that these combined credits total less than the determined value of the 1.9 GHz
spectrum rights, Nextel will make an anti-windfall payment to the United States
Department of the Treasury at the conclusion of the relocation process equal to
the difference".
It further states that "To ensure that the band reconfiguration process will
be completed, the Commission will require Nextel to establish certain escrow
accounts and a letter of credit in the amount of $2.5 billion specifically to
ensure adequate funding of relocation costs for other 800 MHz incumbents.
Similarly, as a new entrant in the 1.9 GHz band, Nextel is also obligated to
fund the transition of incumbent users to comparable facilities."
The Commission vote was 5-0.
Nextel's wireless competitors are not pleased. Moreover, Chairman Powell, who
spoke with reporters after the meeting, conceded that the report and order may
be challenged in court.
Steve Largent, P/CEO of Cellular
Telecommunications and Internet Association (CTIA), criticized the FCC's
report and order. He wrote in a
release
that "The FCC clearly didn’t keep its eye on the ball. Its primary responsibility
in this case is to look out for Public Safety and the American public and that didn’t
happen ... It is unfortunate that the Commission’s plan does less to solve the Public
Safety interference problem than other alternatives that were available. Among
all of the FCC's choices, this one provides Public Safety with the fewest
assurances of success."
Largent also wrote that "Giving up such valuable spectrum without a public
auction means the U.S. Treasury is losing billions of dollars. Those funds
could’ve been used to provide Public Safety with money to make much-needed
improvements in the vital care it provides all of us".
FCC Commissioner
Kathleen Abernathy wrote in a separate
statement
[PDF] that "the rebanding plan is costly, complex and, in some respects, controversial",
but, "it is the only the solution that adequately addresses the needs of public
safety while realigning other uses of the 800 MHz band."
See also, separate
statement [PDF]
of FCC Commissioner Michael
Copps and separate
statement
[PDF] of FCC Commissioner
Jonathan Adelstein supporting the report and order.
Mark Cooper, of the Consumer Federation
of America, praised the FCC's report and order. He wrote in a release that
"Adoption of this plan not only solves the public safety interference issue
without any cost to taxpayers or governmental entities, it does so while
maintaining a platform for strong, independent competition among wireless
providers. I support the FCC decision to resolve the 800 MHz issue for the same
reasons I oppose the AT&T Wireless merger with Cingular: the continuing need for
strong, independent competitors. Competition is imperative in the wireless
industry, especially as the Baby Bells attempt to lock down as much spectrum as
they can."
Cooper added that "I believe this action provides for that long-awaited
solution, and urge an immediate end to the anti-competitive tactics from
companies who have sought to thwart and delay this result. Any attempt to
further delay implementation of this decision comes at the expense of emergency
services personnel, and the public they protect. I urge Verizon and others, who
seemingly wants to continue to stand in the way of the interests of public
safety and competition, to continue their battle in the marketplace and not in
the courtroom."
John Muleta answered questions from reporters at a press conference after the
meeting. He was asked when the FCC will release the report and order. Muleta
stated that "our expectation is to work on this as expeditiously as possible".
He offered no guidance as to when the FCC would release the report and order.
Chairman Powell also wrote in his press statement that "The proceeding has
seen some of the most ruthless lobbying I have ever encountered." The
characterization "ruthless" may be an understatement. See, for example, comments
and ex parte communications submitted to the FCC, and published in the FCC's web
site. These may be accessed via the FCC's
web page titled
"Search for Filed Comments". Enter the proceeding number: 02-55.
For example, William Barr, EVP and General Counsel of Verizon, wrote in a
letter [32 pages in PDF with attachments] to Chairman Powell that "adopting
either plan would contravene the requirements of the Communications Act of 1934,
as amended, concerning the Commission's disposition of public spectrum. More
than that, proceeding on this course would place the Commission's members
themselves in direct violation of federal laws governing the personal
accountability of federal officials for the disposition of federal resources.
While the Commission is familiar with the Communications Act, I believe it may
not be as well acquainted with these latter proscriptions, some of which are
criminal in nature."
See also, American Bar Association Formal Opinion 92-363 relating to the Use
of Threats of Prosecution in Connection with a Civil Matter.
This item is titled "Report and Order, Fourth Report and Order, Memorandum
Opinion and Order, and Order". It is FCC 04-168 in WT Docket No. 02-55, ET
Docket No. 00-258, RM-9498, RM-10024, ET Docket No. 95-18, and IB Docket No.
01-185.
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Senate Democrats Block Class Action Fairness
Act |
7/8. The Senate failed to pass a motion to invoke cloture on
S 2062, the
"Class Action Fairness Act of 2004", on a vote of 44-43. See,
Roll Call No. 154. This effectively blocks Senate passage of the bill.
The vote broke down largely along party lines, with
Republicans supporting the motion, and Democrats opposing it. Senate
Democrats lack the votes to defeat this bill on an ordinary majority vote. So,
they have utilized a filibuster. Filibusters can be terminated by a cloture
vote. However, cloture motions required a three fifths majority to pass. See,
Senate Rule No. 22.
Senate Democrats also defeated a cloture motion last year. On October 22,
2003, the Senate rejected a motion to invoke cloture on
S 1751, the
"Class Action Fairness Act of 2003", by a vote of 59-39. See,
Roll Call No. 403. See also, story titled "Senate Rejects Class Action
Fairness Act" in
TLJ Daily E-Mail Alert No. 764, October 23, 2003.
On June 12, 2003, the House passed its version of the bill,
HR 1115, also
titled the "Class Action Fairness Act", by a vote of 253-170. See,
Roll Call No. 272. See also, stories titled "House Passes Class Action Fairness
Act" in TLJ Daily
E-Mail Alert No. 680, June 13, 2003, and "Reps. Goodlatte and Boucher
Re-Introduce Class Action Fairness Act" in
TLJ Daily E-Mail
Alert No. 619, March 10, 2003.
Stanton Anderson, of the U.S. Chamber of Commerce and the Class Action
Fairness Coalition, stated in a
release
that "Although we are disappointed at the procedural gimmicks that continue to
stymie an up-or-down vote on the bill, we remain committed to passing this
reasonable and vital piece of legislation this year."
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Washington Tech Calendar
New items are highlighted in red. |
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Tuesday, July 13 |
The House will meet at 9:00 AM for morning hour, and at 10:00 AM
for legislative business. It will consider HR 4766, the agriculture
appropriations bill. See,
Republican Whip Notice.
The Senate will meet at 9:45 AM for morning hour. It will then resume
consideration of the motion to proceed to
SJRes 40,
the "Federal Marriage Amendment".
9:30 AM. The
Intellectual Property Owners Association (IPO) will host a press conference
to announce its inventor of the year award. See,
notice. Location:
National Press Club, Holeman Lounge, 529 14th
St. NW, 13th Floor. The IPO will also host an invitation only reception in the Caucus
Room of the Cannon House Office Building. For more information, contact Susan Lusk at
susan@ipo.org or 202 466-2396.
9:30 AM. The North American Numbering
Council (NANC) will meet. Location: Federal Communications
Commission (FCC), 445 12th Street, SW, Room TW-C305.
9:30 AM. The Senate Commerce
Committee will hold a hearings on the proposed reauthorization of the
Corporation for Public Broadcasting. See,
notice.
The hearing will be webcast. Location: Room 253, Russell Building.
5:00 PM. The House
Rules Committee will meet to adopt a rule for consideration of
HR 4759, the
"U.S.-Australia Free Trade Agreement Implementation Act".
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Wednesday, July 14 |
The House will meet at 10:00 AM for legislative
business. The agenda for July 14 and 15 includes consideration of several technology
related items, including
HRes 705,
urging the President to resolve the disparate treatment of direct and indirect
taxes presently provided by the World Trade
Organization (WTO),
HRes 576,
urging People's Republic of China to improve its protection of intellectual
property rights, and
HR 4759,
the "United States-Australia Free Trade Implementation Act". See,
Republican Whip
Notice.
8:30 AM - 12:00 NOON. The DC Bar
Association's Intellectual Property Law Section will host a program titled
"The ABC's Of Patent, Trademark And Copyright Law". The speakers will
be Steven Warner (Fitzpatrick Cella Harper & Scinto), Gary Krugman (Sughrue Mion),
John Hornick (Finnegan Henderson), and Aoi Nawashiro (Browdy & Neimark). Prices vary. A
breakfast buffet is included. See,
notice.
For more information, call 202 626-3463. Location: D.C. Bar Conference
Center, B-1 Level, 1250 H Street, NW.
9:00 AM - 1:15 PM. The
National Telecommunications and Information
Administration (NTIA) will host an event titled "Kids.us Forum:
Developing a Safe Place on the Internet for Children". See, NTIA
notice and
notice
in the Federal Register, June 4, 2004, Vol. 69, No. 108, at Pages 31590-31591. Location:
Department of Commerce, 1401 Constitution Ave., NW, Room 4830.
10:00 AM. The
Senate Finance Committee will
hold an open executive session. The agenda includes (1) a mock mark up to consider
proposed legislation implementing the U.S.-Morocco Free Trade Agreement, (2)
consideration of S 2610, the U.S.-Australia Free Trade Agreement Implementation
Act, and (3) consideration of the nominations of Joey Russell George (to be Treasury
Inspector General for Tax Administration), Patrick O'Carroll (Inspector General, Social
Security Administration), Timothy Bitsberger (Assistant Secretary for Financial Markets,
Department of the Treasury), and Paul Jones and Charles Kolbe (IRS Oversight Board).
Location: Room 215, Dirksen.
10:00 AM. The House Commerce
Committee's Subcommittee on Telecommunications and the Internet will hold a hearing
titled "Competition and Consumer Choice in the MVPD
Marketplace -- Including an Examination of Proposals to Expand Consumer
Choice, Such as A La Carte and Themed-Tiered Offerings". Press
contact: Jon Tripp (Barton) at 202 225-5735 or Sean Bonyun (Upton) at 202
225-3761. Location: Room 2123, Rayburn Building.
10:00 AM. The
House Armed Services Committee and the House International Relations
Committee will hold a joint hearing on the "Role of Arms Export Policy in the
Global War on Terror". The witnesses will be Lincoln Bloomfield (Assistant
Secretary of State, Bureau of Political-Military Affairs), Lisa Bronson
(Deputy Under Secretary of Defense for Technology Security Policy and
Counterproliferation), and Peter Lichtenbaum (Assistant Secretary for Export
Administration, Bureau of Industry and Securities, Department of Commerce).
The hearing notice does not disclose the extent to which the hearing might
focus on the export of items involving information and communications
technologies. Location: Room 2118, Rayburn Building.
11:30 AM. The
House Commerce Committee's
Subcommittee on Commerce, Trade and Consumer Protection will hold a hearing
titled "Radio Frequency Identification (RFID) Technology: What the Future
Holds for Commerce, Security, and the Consumer". Press contacts: Samantha
Jordan (Barton) at 202 225-5735 or Paul Flusche (Stearns) at 202 225-5744.
Location: Room 2322, Rayburn Building.
5:00 PM. The
House Ways and Means Committee
will meet to mark up a draft implementing proposal of HR __, the "United
States-Morocco Free Trade Agreement Implementation Act". Location: Room 1100,
Longworth Building.
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Thursday, July 15 |
The House will meet at 10:00 AM for legislative
business. The agenda for July 14 and 15 includes consideration of several technology
related items, including
HRes 705,
urging the President to resolve the disparate treatment of direct and indirect
taxes presently provided by the World Trade
Organization (WTO),
HRes 576,
urging People's Republic of China to improve its protection of intellectual
property rights, and
HR 4759,
the "United States-Australia Free Trade Implementation Act". See,
Republican Whip
Notice.
TIME CHANGE. 9:30 AM. The
Senate Commerce Committee's
Subcommittee on Communications will hold a hearing on implementation of the Nielsen
local people meter TV rating system.
See,
notice. The hearing will be webcast. Press contact: Rebecca Fisher at 202
224-2670. Location: Room 253, Russell Building.
9:30 AM. The
Senate Judiciary Committee will hold an executive business meeting.
Location: Room 226, Dirksen Building.
Congressional Internet Caucus' Advisory Committee
will host a panel discussion titled "The DMCA Revisited: What's Fair?".
Lunch will be served.
12:15 - 2:00 PM. The
Forum on Technology & Innovation (FTI) will
host a luncheon discussion titled "The Policy Implications of Open Source
Software". The speakers will be Andrew Morton (lead maintainer for the Linux
public production kernel), Bill Guidera (Microsoft), Cheryl Bruner (IBM), and Morgan
Reed (Association for Competitive Technology). See,
notice. Lunch is available at 12:15 PM. The event will be webcast by
the FTI. The program will begin at
12:30 PM. Register by 5:00 PM on July 13 by by fax at 202 682-5150 or at
forum@compete.org; provide your name, title,
office, and e-mail address. Location: Room 902, Hart Building, Capitol Hill.
2:00 PM. The
House Armed Services Committee's Tactical Air Land Forces Subcommittee will
hold a hearing on "Small Business Innovation and Technology". Location: Room
2118, Rayburn Building.
6:00 - 9:30 PM. The DC Bar Association
will host a continuing legal education (CLE) program titled "Antitrust
Investigations in the Era of Enron and WorldCom". The speakers will include
Ray Hartwell (Hunton & Williams), Scott Hammond (Director of Criminal Enforcement,
Antitrust Division, Department of Justice), and Donald Klawiter (Morgan Lewis &
Bockius). Prices vary. See,
notice.
For more information, call 202 626-3488. Location: D.C. Bar Conference Center, B-1 Level,
1250 H Street, NW.
Extended deadline to submit comments to the
Federal Communications Commission (FCC) in
response to its Public Notice (DA 04-1454) regarding a la carte and themed
programming and pricing options for programming distribution on cable TV
and direct broadcast satellite systems. This is MB Docket No. 04-207. See,
notice of extension [PDF].
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Friday, July 16 |
10:30 AM. The Progress
and Freedom Foundation (PFF) will host a conference titled "Should the Net's
Physical Layer be Regulated?". Christopher Yoo (Vanderbilt Law School) will
give the opening address. There will be a panel discussion by Joe Waz (Comcast), Rick
Whitt (WorldCom), Adam Thierer (Cato Institute), and Randolph May (PFF). Kenneth Ferree
(Chief of the FCC's Media Bureau) will be the luncheon address. See,
notice and
registration
pages. For more information, contact Brooke Emmerick at 202 289-8928 or
bemmerick@pff.org. Press contact: David Fish at
202 775-2644 or dfish@brodeur.com. Location:
Washington Mandarin Oriental hotel, 1330 Maryland Ave., SW.
12:15 PM. The Federal
Communications Bar Association's (FCBA) Cable Practice Committee and Young Lawyers
Committee will host a brown bag lunch. The topic will be "The Basics of A La
Carte Cable Pricing". For more information, contact Natalie Roisman at
natalie.roisman@fcc.gov, or Jason
Freidrich at jason.friedrich@dbr.com.
Location: Willkie Farr & Gallagher, 1875 K
Street, NW, 2d Floor.
Deadline to submit reply comments to the
Federal Communications Commission (FCC) in response
to its Further Notice of Proposed Rule Making (FNPRM) and Notice of Inquiry (NOI)
regarding digital audio broadcasting (DAB). This item is FCC 04-99 in MB Docket
No. 99-325. See,
story titled
"FCC Announces FNPRM and NOI Regarding Digital Audio Broadcasting" in
TLJ Daily E-Mail Alert No.
878, April 16, 2004, and
notice in the Federal Register, May 17, 2004, Vol. 69, No. 95, at Pages
27874 - 27885.
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Monday, July 19 |
10:00 AM. The U.S.
District Court (DC) will hold a status conference in U.S. v. Microsoft,
and New York v. Microsoft, Case Nos. 1:1998-cv-01232 and 3,
Judge Colleen Kotelly
presiding. Location: Courtroom 11, Prettyman Courthouse, 333
Constitution Ave.
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Monti Addresses Competition Policy and New
Media |
7/8.
Mario Monti, the European Commissioner for Competition Policy, gave a
speech in Brussels, Belgium titled "Access to content and the development of
competition in the New Media market- the Commission’s approach".
Monti
(at right) said that "one concern of competition authorities should be to ensure
that media content can be provided over new networks and not just the
traditional ones. I am not only thinking about the new 3G mobile networks but
also broadband DSL and cable connections to the Internet."
He concluded that "the Media sector is, and will remain, on the top of the
agenda for the application of European competition policy. Across Europe the
Commission will carefully monitor market developments and act wherever we detect
foreclosure of markets. Availability of attractive content - notably sports
(football) rights but also music, film rights and anything that will be
considered as an attractive content in the future – will continue to be kept
under close scrutiny using all the powerful legal instruments that the recent
modernisation of the antitrust rules has put at our disposal. This is of course
even more true for the new media whose rapid and undisturbed development is one
of the major goals for the Commission in the next years. We are doing and will
do all that is in our power to achieve this goal."
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USAO in Northern District of California
Prosecutes Unauthorized Access to Protected Computer Cases |
7/6. A grand jury of the U.S. District
Court (NDCal) returned an
indictment [redacted, PDF] on July 2 against Laurent Chavet that charges one count
of unauthorized access to a protected computer in violation of
18 U.S.C. § 1030(a)(4) and
one count of reckless damage to a protected computer in violation 18 U.S.C. § 1030(a)(5).
The indictment alleges that
Laurent Chavet "was employed by AltaVista as a computer engineer from
approximately June 1999 to approximately February 2002" and that "On or about
March 28, 2002, in the Northern District of California ... did knowingly and
with intent to defraud, access a protected computer belonging to AltaVista, to
wit, the computer know as ``respository2´´, without authorization and by exceeding
authorized access, and by means of such conduct did further the intended fraud
and obtain something of value, to wit, source code belonging to AltaVista."
AltaVista was an internet search company that has since been acquired.
A
release of the U.S. Attorney's Office (USAO) states that FBI agents arrested Chavet
in Seattle, Washington, and that Chavet lives in Kirkland, Washington. Microsoft, which also
develops search products, is based in Redmond, Washington.
Also in the Northern District of California, Yan Ming Shan plead guilty on
July 6 to a one count
indictment [PDF] charging him with unauthorized access to a protected computer in
violation of 18 U.S.C. § 1030(a)(4) in connection with
his accessing the computers of 3DGeo Development, Inc. to fraudulently
obtain proprietary software programs and source code. See also, USAO
release.
§ 1030(4) provides that "Whoever ... knowingly and with intent to defraud,
accesses a protected computer without authorization, or exceeds authorized access, and
by means of such conduct
furthers the intended fraud and obtains anything of value, unless the object of
the fraud and the thing obtained consists only of the use of the computer and
the value of such use is not more than $5,000 in any 1-year period".
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People and Appointments |
7/8. William Deere was named VP -- Government
Affairs of the U.S. Telecommunications Association
(USTA). He was previously
Deputy Assistant Secretary in the State Department's Bureau of Legislative
Affairs. See, USTA
release.
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More News |
7/12. The Federal Communications Commission's
(FCC) Internet Policy Working Group (IPWG)
announced that it will host an event that it describes as "a roundtable
discussion to address international issues associated with the migration of
communications services and applications to IP-based technologies". It will be
on Friday, July 30 from 9:30 AM to 1:00 PM. See, FCC
notice [PDF]. The event will be held in the FCC's Commission Meeting Room,
445 12th Street, SW.
7/8. At the Federal Communications Commission's (FCC) July 8, 2004 meeting,
Dane Snowden,
Chief of the FCC’s Consumer & Governmental
Affairs Bureau, presented a
report
[23 pages in PDF] on an FCC program titled "Lands of Opportunity: Building Rural
Connectivity". He discussed FCC efforts in Appalachia, in the Mississippi
valley, in rural Alaska, and in Indian country in the western states. See, FCC
release [PDF].
7/9. The Senate passed
HR 1303 by
unanimous consent. This bill would amend § 205(c) of the E-Government Act of 2002 (Public Law
No. 107-347) by striking paragraph (3) and inserting the following: "(3)
PRIVACY AND SECURITY CONCERNS--The
Judicial Conference of the United States may promulgate rules to protect privacy
and security concerns relating to the electronic filing of documents, and the
public availability of documents filed electronically, pursuant to this
subsection." Currently, paragraph (3) provides that the "The Supreme Court shall
prescribe rules, in accordance with sections 2072 and 2075 of title 28, United
States Code, to protect privacy and security concerns relating to electronic
filing of documents and the public availability under this subsection of
documents filed electronically." The House passed this bill by voice vote on
October 7, 2003.
7/7. The Business Software Alliance (BSA) released a report
on global software piracy. See, BSA
release.
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