7/14. Federal Communications Commission (FCC) Chairman Michael Powell issued a statement [PDF] regarding broadband over powerline (BPL) technology following a demonstration in Menlo Park, California sponsored by Pacific Gas and Electric Company and AT&T.

He wrote that "Powerline technology holds the great promise to bring high-speed Internet access to every power outlet in America. What I saw today has the potential to play a key role in meeting our goals to expand the availability and affordability of broadband. AT&T and Pacific Gas and Electric are to be applauded for leading the way for this innovative technology. The future is bright for powerline broadband. We'll continue at the FCC to explore ways to support this technology while protecting other services from interference."

In addition, Commissioner Susan Kennedy (at right) of the California Public Utilities Commission attended the demonstration and stated that "Chairman Powell and I are working together, at both the federal and state level, to promote new technologies like BPL -- that will ultimately provide California's consumers with a choice of broadband platforms ... It is essential that Californians have the right tools and the right business climate, if we are to continue leading the nation in innovation and developing next generation technologies."

The FCC issued a notice of proposed rulemaking (NPRM) on BPL 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.

The extended deadline to submit reply comments was June 22, 2004. See, Order Granting Extension of Time [3 pages in PDF]. This NPRM is FCC 04-29 in ET Docket Nos. 03-104 and 04-37.

7/14. The U.S. Court of Appeals (9thCir) issued its opinion [27 pages in PDF] in AT&T v. PacBell, a case regarding 47 U.S.C. § 252 and state regulation of the prices charged by incumbent local exchange carriers (ILECs) to competitive local exchange carriers (CLECs) for access to their networks.

The Appeals Court upheld in part, the California Public Utilities Commission's (CPUC) determination regarding the rates that Pacific Bell Telephone Company may charge AT&T, WorldCom and other CLECs.

The Appeals Court held that "although the general methodology chosen by the CPUC to calculate a common cost markup was appropriate, the CPUC improperly implemented the methodology by attributing some common costs to wholesale operations that should have been attributed to retail operations. We therefore reverse the decision of the district court with respect to the amount of common costs that Pacific’s competitors must pay for access to Pacific’s network."

This case is AT&T Communications of California, Inc., et al. v. Pacific Bell Telephone Company, California Public Utilities Commission, et al., U.S. Court of Appeals for the 9th Circuit, App. Ct. No. 02-16751 and consolidated cases, appeal from the U.S. District Court for the Northern District of California.

7/9. The U.S. Court of Appeals (8thCir) issued its opinion [PDF] in Mid-List Press v. Nora. While intellectual property disputes over literary works often involve claims by authors and copyright holders that publishers stole their works, this case involves the opposite. A publisher claimed that an author stole its name and ISBN number. Hence, it is a Lanham Act false designation of origin case.

James Nora wrote, printed, and sold via Amazon a book of poetry. The book stated that it was published by Mid-List Press (MLP), a small publisher based in the state of Minnesota. The book also used the International Standard Book Number (ISBN) of MLP. While Nora was an officer and director of MLP, he had no authority to publish the book as a MLP book.

MLP filed a complaint in U.S. District Court (DMinn) against Nora alleging, among other things, violation of the Lanham Act. The District Court held that Nora falsely designated the origin of the book, and granted MLP an injunction. The Appeals Court affirmed.

15 U.S.C. § 1125 provides, in part, that "Any person who, on or in connection with any goods or services, or any container for goods, uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which (A) is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person, ... shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by such act."

Nora argued on appeal that MLP had not presented evidence of actual consumer confusion. The Appeals Court held that actual confusion need not be proved. The plaintiff need only prove likely confusion, and this may be shown by circumstantial evidence.

The Court wrote that "MLP proved likelihood of confusion given the circumstances present in this case. Typical Lanham Act claims involve situations where the alleged wrongdoer uses a mark or name so similar to the plaintiff's the public is likely to be deceived. This case involves a situation where the wrongdoer used the plaintiff's actual mark, not merely a similar mark, to pass off his product as the plaintiff's."

The Court added that "It is difficult to imagine how the public would not be confused about the origin of" the book "when the book actually bore the MLP trade name and ISBN number."

This case is Mid-List Press, Inc. v. James Nora, U.S. Court of Appeals for the 8th Circuit, App. Ct. No. 03-3229, an appeal from the U.S. District Court for the District of Minnesota.

7/14. The House passed HR 4759, the "United States-Australia Free Trade Implementation Act", by a vote of 314-109. See, Roll Call No. 375.

Republicans voted 198-24 in favor of the bill. Democrats voted 116-84 in favor of the bill. Almost all members of both parties who are active on technology related issues voted for the bill. The one notable exception was Rep. Rick Boucher (D-VA), a Co-Chair of the Internet Caucus, who voted against the bill.

U.S. Trade Representative (USTR) Robert Zoellick wrote in a statement [PDF] on July 14 that "In addition to freeing trade in industrial goods, the new FTA removes barriers to agricultural products, investment, government procurement, and services while increasing protection for intellectual property and freeing electronic commerce."

USTR Zoellick (at left) added that "The free trade agreements approved today by the House are an important part of the Administration's efforts to expand trade globally, regionally, and bilaterally. We now look forward to swift passage in the Senate."

On July 14 the Senate Finance Committee approved S 2610, the "U.S.-Australia Free Trade Agreement Implementation Act", by a vote of 17-4. Sen. Tom Daschle (D-SD), Sen. Olympia Snowe (R-ME), Sen. Jay Rockefeller (D-WV), and Sen. Kent Conrad (D-ND) voted no.

The agreement includes provisions regarding electronic commerce, patents, trade secrets, trademarks, cyber-squatting, piracy and counterfeiting. See, text of the FTA.

See also, stories titled "U.S. and Australia Sign FTA" in TLJ Daily E-Mail Alert No. 901, May 19, 2004, and "US and Australia Conclude FTA with Extensive Info Tech Provisions" in TLJ Daily E-Mail Alert No. 833, February 10, 2004.

7/14. The House passed HRes 576, a resolution urging People's Republic of China to improve its protection of intellectual property rights, by a vote of 416-3. See, Roll Call No. 374.

This resolution recognizes "the continuing existence of widespread intellectual property rights violations in China and encourages the Chinese Government to take further and immediate steps to improve enforcement of such rights".

It "urges the Chinese Government to undertake a coordinated nationwide intellectual property rights enforcement campaign, to eliminate the high criminal liability threshold and procedural obstacles that impede the effective use of criminal prosecution in addressing intellectual property rights violations, to increase the criminal penalties provided for in its laws and regulations, and to vigorously pursuit counterfeiting and piracy cases".

It also "recommends that the Chinese Government implement more effective customs and border measures to prevent the massive exportation of pirated goods into the United States and other countries".

It also "encourages the Chinese Government to fully and comprehensively implement a legal framework and effective enforcement mechanisms that would protect not only intellectual property rights held by United States and foreign business enterprises with or without investments in China, but also Chinese intellectual property rights holders, which is crucial to China's own economic development and technological advancement".

7/14. The House passed HRes 705, urging the President to resolve the disparate treatment of direct and indirect taxes presently provided by the World Trade Organization (WTO), by a vote of 423-1. See, Roll Call No. 372.

The resolution states that the "World Trade Organization does not permit direct taxes, such as the corporate income tax, to be rebated or reduced on exports", but "indirect taxes, such as a value added tax, can be and are rebated on exports in other countries".

It further states that the WTO's distinction "between direct and indirect taxation is arbitrary and may induce economic distortions among nations with disparate tax systems", and that "United States firms pay a high corporate tax rate on their export income and many foreign nations are allowed to rebate their value added taxes, thereby giving exporters in nations imposing value added taxes a competitive advantage over American workers".

The non-binding resolution requests that the President report annually to the Congress "on progress in pursuing multilateral and bilateral trade negotiations to eliminate the barriers described in section 2102(b)(15) of the Trade Act of 2002; and ... on (A) proposed alternatives to the disparate treatment of direct and indirect taxes presently provided by the World Trade Organization; and (B) other proposals for redressing the tax disadvantage to United States businesses and workers, either by changes to the United States corporate income tax or by the adoption of an alternative, including -- (i) assessing the impact of corporate tax rates, (ii) a system based on the principal of territoriality, and (iii) a border adjustment for exports such as is already allowed by the World Trade Organization for indirect taxes."

7/14. The Senate Finance Committee approved proposed legislation implementing the U.S. Morocco Free Trade Agreement by a vote of 20-1. Sen. Jay Rockefeller (D-WV) vote no.

Also, on July 14, the House Ways and Means Committee approved a draft bill implementing the US Morocco FTA. See, release.

See, text of the FTA, and especially, intellectual property rights chapter [PDF], electronic commerce chapter [PDF], and telecommunications chapter [PDF]. See also, story titled "USTR Releases US-Morocco FTA and Report of Advisory Committees" in TLJ Daily E-Mail Alert No. 874, April 12, 2004.

U.S. Trade Representative (USTR) Robert Zoellick wrote in a statement [PDF] on July 14 that "We also have to work with the Congress in the coming weeks to advance the U.S. -- Morocco FTA toward final passage."

7/13. Rep. Lamar Smith (R-TX), the Chairman of the House Judiciary Committee's Subcommittee on Courts, the Internet and Intellectual Property, was named Legislator of the Year by the Intellectual Property Owners Association. See, Rep. Smith's release.

7/13. Sen. Max Baucus (D-MT), the ranking Democrat on the Senate Finance Committee, gave a speech [5 pages in PDF] titled "Looking Forward on Trade -- The Agenda for 2005".

The House will meet at 10:00 AM for legislative business. See, Republican Whip Notice.

The Senate will meet at 9:30 AM for morning hour. It will then consider HR 4520, the "American Jobs Creation Act of 2004", the tax bill that includes repeal of the FSC/ETI tax regime, and HR 4759, the "United States - Australia Free Trade Agreement Implementation Act".

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.

10:00 AM. The House Judiciary Committee's Subcommittee on Courts, the Internet, and Intellectual Property will hold an oversight hearing titled "Internet Streaming of Radio Broadcast: Balancing the Interests of Sound Recording Copyright Owners With Those of Broadcasters". The hearing will be webcast by the Committee. Press contact: Jeff Lungren or Terry Shawn at 202 225-2492. Location: Room 2141, Rayburn Building.

12:00 NOON - 1:30 PM. Congressional Internet Caucus' Advisory Committee will host a panel discussion titled "The DMCA Revisited: What's Fair?". Lunch will be served. Location: Mansfield Room, S-207, Capitol Building.

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.

12:30 PM. The House Ways and Means Committee's Subcommittee on Social Security will meet to mark up HR 2971, the "Social Security Number Privacy and Identity Theft Prevent Act of 2003". See, notice. Location: Room B-318, Rayburn Building.

POSTPONED TO JULY 21. 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.

TIME CHANGE. 2:00 PM. The Senate Judiciary Committee will hold an executive business meeting. See, notice. Press contact: Margarita Tapia (Hatch) at 202 224-5225 or David Carle (Leahy) at 202 224-4242. Location: Room 226, Dirksen 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].

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.

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.

9:30 AM. The Senate Judiciary Committee will hold an executive business meeting. See, notice. Press contact: Margarita Tapia (Hatch) at 202 224-5225 or David Carle (Leahy) at 202 224-4242. Location: Room 226, Dirksen Building.

2:30 PM. The Senate Banking Committee will hold an oversight hearing to examine the Semi-Annual Monetary Policy Report of the Federal Reserve Bank. FRB Chairman Alan Greenspan will testify. See notice. Location: Room 216, Hart Building.

9:00 AM. Day one of a two day meeting of the Department of Commerce's (DOC) Bureau of Industry and Standards (BXA/BIS) Information Systems Technical Advisory Committee (ISTAC). Some of the meetings will be closed to the public. The agenda includes a summary of the Wassenaar Arrangement inter-sessional meeting on semiconductor manufacturing equipment, and a presentation on computational capability of graphics processors. See, notice in the Federal Register, July 6, 2004, Vol. 69, No. 128, at Page 40601. Location: DOC, Room 3884, 14th Street between Pennsylvania Ave. and Constitution Ave., NW.

10:00 AM. The House Commerce Committee's Subcommittee on Telecommunications and the Internet will hold a hearing titled "The Digital Television Transition: What We Can Learn From Berlin?" Press contacts: Jon Tripp (Barton) at 202-225-5735 ant Sean Bonyun (Upton) at 202-225-3761. Location: Room 2123, Rayburn Building.

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

12:00 NOON. The Heritage Foundation will host a book presentation. James Rogan, a former member of the House Judiciary Committee and a former director of the U.S. Patent and Trademark Office (USPTO), will talk about his book titled Rough Edges: My Unlikely Road from Welfare to Washington [Amazon]. See, notice. Location: 214 Massachusetts Ave., NE.

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. This hearing was previously scheduled for July 15.

9:00 AM. The Senate Governmental Affairs Committee will hold the second part of its hearing titled "Buyer Beware: The Danger of Purchasing Pharmaceuticals over the Internet". The witnesses will be Richard Stana (GAO), Robert Bonner (Bureau of Customs & Border Protection), Karen Tandy (Drug Enforcement Administration), John Potter (Postmaster General, USPS), John Taylor (Food and Drug Administration), John Scheibel (Yahoo), Sheryl Sandberg (Google), Joshua Peirez (Master Card), Steve Ruwe (Visa), Robert Bryden (Federal Express), and Daniel Silva (United Parcel Service). See, notice. Location: Room 342, Dirksen Building.

9:00 AM. Day two of a two day meeting of the Department of Commerce's (DOC) Bureau of Industry and Standards (BXA/BIS) Information Systems Technical Advisory Committee (ISTAC). Some of the meetings will be closed to the public. The agenda includes a summary of the Wassenaar Arrangement inter-sessional meeting on semiconductor manufacturing equipment, and a presentation on computational capability of graphics processors. See, notice in the Federal Register, July 6, 2004, Vol. 69, No. 128, at Page 40601. Location: DOC, Room 3884, 14th Street between Pennsylvania Ave. and Constitution Ave., NW.

9:30 AM. The Senate Judiciary Committee will hold an executive business meeting. See, notice. Press contact: Margarita Tapia (Hatch) at 202 224-5225 or David Carle (Leahy) at 202 224-4242. Location: Room 226, Dirksen Building.

9:30 AM. The Senate Commerce Committee will hold a hearing on media ownership. The hearing will be webcast. Press contact: Rebecca Fisher at 202 224-2670. Location: Room 253, Russell Building.

EXTENDED TO SEPTEMBER 10. Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its public notice (DA 04-1690) requesting public comments on constitutionally permissible ways for the FCC to identify and eliminate market entry barriers for small telecommunications businesses and to further opportunities in the allocation of spectrum-based services for small businesses and businesses owned by women and minorities. See, notice in the Federal Register, June 22, 2004, Vol. 69, No. 119, at Pages 34672 - 34673. See also, notice of extension [PDF].

Deadline to submit comments to the Federal Communications Commission (FCC) in response to its notice of proposed rulemaking (NPRM) regarding a national one call notification system. The FCC adopted this NPRM on May 13, 2004, and released the text [34 pages in PDF] on May 14, 2004. See, story titled "FCC Adopts NPRM Regarding One Call Notification System" in TLJ Daily E-Mail Alert No. 899, May 17, 2004. This NPRM is FCC 04-111 in CC Docket No. 92-105. See, notice in the Federal Register, June 8, 2004, Vol. 69, No. 110, at Pages 31930 - 31939.

Deadline to submit comments to the Federal Communications Commission (FCC) in response to its Notice of Inquiry (NOI) [30 pages in PDF] regarding its annual report to the Congress on the status of competition in the market for the delivery of video programming. See also, story titled "FCC Adopts NOI For Annual Report to Congress on Video Programming" in TLJ Daily E-Mail Alert No. 916, June 11, 2004. This NOI is FCC 04-136 in MB Docket No. 04-227. See also, notice in the Federal Register, July 1, 2004, Vol. 69, No. 126, at Pages 39930 - 39933.

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