11/12. Novell filed a complaint in U.S. District Court (DUtah) against Microsoft alleging violation of antitrust laws in connection with Novell's ownership, over eight years ago, of the WordPerfect word processing application.

Novell and WordPerfect Corporation merged in June of 1994. Novell sold WordPerfect (the word processing application) to Corel in March of 1996.

Novell's General Counsel Joseph LaSala stated in a release that "this lawsuit is unrelated to Novell's current business". Microsoft stated in a release that "It's also unfortunate, and surprising, that Novell has just now chosen to litigate over a business it owned for a very short time and that it sold more than eight years ago. ... their claims should be barred by the legal doctrine called the Statute of Limitations."

Novell asserts that "Microsoft withheld certain critical technical information about Windows from Novell, thereby impairing Novell's ability to develop new versions of WordPerfect and other Novell office productivity applications. The complaint also alleges that Microsoft integrated certain technologies into Windows designed to exclude WordPerfect and other Novell applications from relevant markets. In addition, Novell asserts that Microsoft used its monopoly power to prevent hardware partners from offering WordPerfect and other applications to customers."

Microsoft stated that "Novell seeks to blame Microsoft for its own mismanagement and poor business decisions. The record is clear that bad decisions and business mistakes are the reasons WordPerfect fell out of favor with consumers."

Microsoft added that "Prior to Novell's purchase of WordPerfect in 1994, WordPerfect had already begun to decline. Indeed, Novell’s stock dropped 15 percent the day after it announced the acquisition. WordPerfect deliberately chose not to develop a version for early versions of Windows in the hope that depriving Windows of a key application would limit the success of Windows. This and other missteps led to a decline in WordPerfect popularity that resulted in Novell selling it for approximately one-eighth of what was paid for it only 20 months earlier."

11/12. The Federal Communications Commission (FCC) released its Memorandum Opinion and Order [41 pages in PDF] that addresses Vonage Holdings Corporation's Petition for Declaratory Ruling regarding its DigitalVoice service in the state of Minnesota..

The FCC adopted, but did not release, this Memorandum Opinion and Order (MO&O) at its November 9, 2004 meeting. This MO&O is FCC 04-267 in WC Docket No. 03-211.

This MO&O states that "we preempt an order of the Minnesota Public Utilities Commission (Minnesota Commission) applying its traditional “telephone company” regulations to Vonage’s DigitalVoice service, which provides voice over Internet protocol (VoIP) service and other communications capabilities. We conclude that DigitalVoice cannot be separated into interstate and intrastate communications for compliance with Minnesota’s requirements without negating valid federal policies and rules."

It continues that the FCC, and "not the state commissions, has the responsibility and obligation to decide whether certain regulations apply to DigitalVoice and other IP-enabled services having the same capabilities. For such services, comparable regulations of other states must likewise yield to important federal objectives. Similarly, to the extent that other VoIP services are not the same as Vonage's but share similar basic characteristics, we believe it highly unlikely that the Commission would fail to preempt state regulation of those services to the same extent."

However, it adds that "We express no opinion here on the applicability to Vonage of Minnesota's general laws governing entities conducting business within the state, such as laws concerning taxation; fraud; general commercial dealings; and marketing, advertising, and other business practices. We expect, however, that as we move forward in establishing policy and rules for DigitalVoice and other IP-enabled services, states will continue to play their vital role in protecting consumers from fraud, enforcing fair business practices, for example, in advertising and billing, and generally responding to consumer inquiries and complaints."

The MO&O also finds that "Minnesota's regulation would likely have the “practical effect” of regulating beyond its borders and therefore would likely violate the Commerce Clause."

This MO&O reviews the nature of Vonage's DigitalVoice service, the Minnesota Public Utilities Commission's (MPUC) September 13, 2003, Order Finding Jurisdiction and Requiring Compliance [9 pages in PDF], and Vonage's September 22, 2003 petition to the FCC. See, part 1, part 2, part 3, part 4, part 5, and part 6 [slow downloading PDF scans]. See also, story titled "FCC Adopts Order on Vonage's VOIP Petition" in TLJ Daily E-Mail Alert No. 1,015, November 10, 2004.

The MO&O states that "We find that the characteristics of DigitalVoice preclude any practical identification of, and separation into, interstate and intrastate communications for purposes of effectuating a dual federal/state regulatory scheme, and that permitting Minnesota’s regulations would thwart federal law and policy. We reach this decision irrespective of the definitional classification of DigitalVoice under the Act, i.e., telecommunications or information service, a determination we do not reach in this Order."

It adds in a footnote that the IP enabled services proceeding "will resolve important regulatory matters with respect to IP-enabled services generally, including services such as DigitalVoice, concerning issues such as the Universal Service Fund, intercarrier compensation, 911/E911, consumer protection, disability access requirements, and the extent to which states have a role in such matters. In addition, the Commission recently initiated a rulemaking proceeding to address law enforcement's needs relative to the Communications Assistance for Law Enforcement Act (CALEA), including the scope of services that are covered, who bears responsibility for compliance, the wiretap capabilities required by law enforcement, and acceptable compliance standards. Our decision in this Order does not prejudice the outcome of our proceeding on CALEA."

With respect to 911 service, the MO&O states that "Because Minnesota inextricably links pre-approval of a 911 plan to becoming certificated to offer service in the state, the application of its 911 requirements operates as an entry regulation. Vonage explains that there is no practicable way for it to comply with this requirement: it cannot today identify with sufficient accuracy the geographic location of a caller, and it has not obtained access in all cases to incumbent LEC E911 trunks that carry calls to specialized operators at public safety answering points (PSAPs). Under the Minnesota “telephone company” rules, therefore, this requirement bars Vonage from entry in Minnesota. To that extent, this requirement is preempted along with all other entry requirements contained in Minnesota’s “telephone company” regulations as applied to DigitalVoice." (Footnotes omitted.)

Nevertheless, the MO&O adds that "Although we preempt Minnesota from imposing its 911 requirements on Vonage as a condition of entry, this does not mean that Vonage should cease the efforts it has undertaken to date and we understand is continuing to take both to develop a workable public safety solution for its DigitalVoice service and to offer its customers equivalent access to emergency services."

11/12. The Office of the U.S. Trade Representative (USTR) released a statement regarding recommendations that it has received pursuant to Section 301 regarding the exchange rate for the currency of the People's Republic of China.

The statement announces that "As we have previously made clear, the Administration believes China must move faster to adopt a flexible, market-based exchange rate and we have acted aggressively to persuade the Chinese government to undertake the complex transition toward that goal. Working closely with U.S. Treasury officials, China, according to Governor Zhou of China's People Bank, has made this a top priority and has made a series of policy moves to liberalize rules governing foreign exchange transactions, moved to strengthen and develop the finance sector, adjusted interest rates, and taken other steps toward increasing flexibility in financial policymaking; these are clear signs that the Administration's efforts are paying dividends."

But, it adds, "A Section 301 action would not assist in these efforts, and indeed could be more damaging than helpful at this time."

Section 301 is the statutory means by which the United States asserts its international trade rights, including its rights under WTO Agreements.

11/11. Paul Otellini was elected CEO of Intel Corporation by its Board of Directors. He has worked for Intel since 1974, and is currently its President and Chief Operating Officer (COO). He will replace Craig Barrett, who will become Chairman of the Board of Directors. Barrett will replace the current Chairman, Andrew Grove, who will become an advisor to the Board and management. See, Intel release.

11/12. The Federal Communications Commission (FCC) released its Report and Order [64 pages in PDF] regarding modifications to and extension of its Form 477 local competition and broadband data gathering program. The FCC adopted, but did not release, this Memorandum Opinion and Order (MO&O) at its November 9, 2004 meeting. This MO&O is FCC 04-266 in WC Docket No. 04-141. See also, story titled "FCC to Collect More Data with Form 477" in TLJ Daily E-Mail Alert No. 1,016, November 11, 2004.

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Notices & Disclaimers
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The House is in recess until November 16, 2004. See, Republican Whip Notice.

The Senate is in recess until November 16, 2004.

The Supreme Court will begin a recess. It will return on Monday, November 29, 2004. See, Order List [14 pages in PDF] at page 14.

6:00 - 9:15 PM. The DC Bar Association will host a continuing legal education (CLE) program titled "How to Litigate an Intellectual Property Case Series, Part 2: How to Litigate a Trademark Case". The speakers will be Shauna Wertheim (Roberts Abokhair & Mardula) and Steven Hollman (Hogan & Hartson). See, notice. Prices vary from $70 to $115. For more information, call 202 626-3488. Location: D.C. Bar Conference Center, B-1 Level, 1250 H Street, NW.

12:15 - 1:30 PM. The Federal Communications Bar Association's (FCBA) Professional Responsibility Committee will host a brown bag lunch. This is an organizational meeting. Location: Paul Hastings, 1299 Pennsylvania Ave., NW, 10th Floor.

Extended deadline to reply submit comments to the Federal Communications Commission (FCC) in response to its Notice of Inquiry (NOI) [15 pages in PDF] regarding "issues relating to the presentation of violent programming on television and its impact on children." This NOI is FCC 04-175 in MB Docket No. 04-261. See, story titled "FCC Issues NOI on Violent TV Programming" in TLJ Daily E-Mail Alert No. 950, August 2, 2004. See also, Order [PDF] extending the deadlines.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its notice of proposed rulemaking (NPRM) regarding "Internet Protocol (IP) Relay and Video Relay Service (VRS), including the appropriate cost recovery methodology for VRS, possible mechanisms to determine which IP Relay and VRS calls are intrastate and which are interstate for purposes of reimbursement, whether IP Rely and VRS should become mandatory TRS services, whether IP Relay and VRS should be required to be offered 7 days a week, 24 hours a day, and whether, when, and how we should apply the speed of answer rule to the provision of VRS." See, notice in the Federal Register, September 1, 2004, Vol. 69, No. 169, at Pages 53382 - 53385. The FCC adopted this NPRM on June 10, 2004, and released it on June 30, 2004. It is FCC 04-134 in CG Docket No. 03-123. Comments are due by October 18, 2004.

Deadline to submit comments for, or requests to participate in, the Federal Trade Commission's (FTC) workshop titled "Peer to Peer File-Sharing Technology: Consumer Protection and Competition Issues". See, FTC release and notice [13 pages in PDF] to be published in the Federal Register.

The House will meet at 2:00 PM. See, Republican Whip Notice.

The Senate will meet at 12:00 NOON.

TIME CHANGE. 8:30 AM. The Senate Judiciary Committee will hold a hearing titled "Judicial Nominations". Thomas Griffith (nominated to be a Judge of the U.S. Court of Appeals for the District of Columbia), Paul Crotty (Southern District of New York), and Michael Seabright (District of Hawaii) will testify. Press contact: Margarita Tapia (Hatch) at 202 224-5225. Location: Room 226, Dirksen Building.

9:30 AM - 1:00 PM. The DC Bar Association will host a continuing legal education (CLE) program titled "Essential Checklist for Electronic Discovery". The speakers will be Kenneth Withers (Federal Judicial Center), Robert Eisenberg (CoreFacts), Magistrate John Facciola (U.S. District Court for the District of Columbia), Virginia Llewellyn (LexisNexis Applied Discovery), Jonathan Redgrave (Jones Day). See, notice. Prices vary from $70 to $115. For more information, call 202 626-3488. Location: D.C. Bar Conference Center, B-1 Level, 1250 H St., NW.

10:00 - 11:30 AM. The Federal Communications Commission's (FCC) Media Security and Reliability Council will meet. The event will be webcast by the FCC. The public may submit written comments. See, notice in the Federal Register, July 15, 2004, Vol. 69, No. 135, at Page 42439. Location: FCC, 445 12th St. SW, Room TW-C305 (Commission Meeting Room).

11:00 AM. The Federal Communications Commission's (FCC) International Bureau will hold an event titled "Media briefing on the 10th Anniversary of the FCC’s International Bureau". Bureau Chief Don Abelson will speak. RSVP to Jacki Ponti at Jacki.Ponti@fcc.gov or Meribeth McCarrick at Meribeth.Mccarrick@fcc.gov. Location: FCC, 445 12th Street, SW, Room TW A-402/A-442.

12:00 NOON. The Federal Communications Bar Association's (FCBA) Executive Committee will meet.  Location: Wiley Rein & Fielding, 1776 K St., NW.

12:15 PM. The Federal Communications Bar Association's (FCBA) Cable Practice Committee will host a brown bag lunch. Jon Cody, Legal Advisor to FCC Chairman Michael Powell, will speak. For more information, contact Catherine.Bohigian@fcc.gov. Location: Mintz Levin, 701 Pennsylvania Ave., NW.

9:00 AM - 3:00 PM. The Department of Commerce's (DOC) Bureau of Industry and Security (BIS) will host an event titled "U.S. India High Technology Cooperation Group Dialogue on Defense Technology, Data Privacy, and Export Licensing". See, invitation [PDF], registration form, and agenda. Location: DOC 1401 Constitution Ave., NW.

9:30 AM. The Senate Commerce Committee will hold a hearing on pending nominations. Press contact: David Wonnenberg at 202 224-2670 or david_wonnenberg @commerce.senate.gov. Location: Room 253, Russell Building.

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in USTA v. FCC, No. 03-1414. This is petition for review of a final order of the FCC pertaining to number portability. See, brief [47 pages in PDF] of the FCC. Judges Sentelle, Randolph and Garland will preside. Location: Courtroom 20, Prettyman Courthouse, 333 Constitution Ave., NW.

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in Ctrl TX Tele Coop v. FCC, No. 03-1405. Judges Sentelle, Randolph and Garland will preside. Location: Courtroom 20, Prettyman Courthouse, 333 Constitution Ave., NW.

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in Covad Communications Co. v. Bell Atlantic Corp., No. 02-7057. Judges Ginsburg, Rogers and Tatel will preside. Location: Prettyman Courthouse, 333 Constitution Ave., NW.

11:00 AM. The Federal Communications Bar Association's (FCBA) Legislation Committee will host an event. The speaker will be Gregg Rothschild (Democratic Counsel, House Commerce Committee). He will speak on legislative issues. RSVP to Helene Marshall at hmarshall@wrf.com. Location: Wiley Rein & Fielding, 1776 K St., NW.

CANCELLED. The Federal Communications Bar Association's (FCBA) will host a breakfast. The speaker will be Jeff Carlisle, Chief of the Federal Communications Commission's (FCC) Wireline Competition Bureau.

9:00 AM - 4:00 PM. The Federal Communications Commission's (FCC) Consumer Advisory Committee will meet. The agenda includes receiving a report and recommendations from its broadband working group with regard to digital television and the FCC's DTV outreach campaign, receiving a report and recommendations from its consumer complaints, education and outreach working group, receiving a report and recommendations from its competition policy working group regarding consumer issues in competition policy, and receiving a report and recommendations from its homeland security working group regarding emergency communications. See, FCC notice [PDF] and notice in the Federal Register, October 29, 2004, Vol. 69, No. 209, at Pages 63152 - 63153. Location: FCC, 445 12th St. SW, Room TW-C305 (Commission Meeting Room).

9:30 -11:00 PM. The Progressive Policy Institute (PPI) will host a program titled "The Japanese Broadband Miracle: Are There Lessons for the United States?". The speakers will be Yasu Taniwaki (Economic Counselor and Telecommunications Attaché, Embassy of Japan) and Rob Atkinson (Director of the PPI's Technology and New Economy Project). A light breakfast will be served. RSVP to 202 547-0001 or PPIEvents@dlcppi.org. Location: 600 Pennsylvania Ave., SE, Suite 400.

10:00 AM - 12:00 NOON. The Department of State's (DOS) International Telecommunication Advisory Committee (ITAC) will meet to advise the DOS on policy and technical issues with respect to the International Telecommunication Union (ITU), and in particular, the December 15-17, 2004 meeting of ITU's Telecommunications Development Advisory Group (TDAG) in Geneva, Switzerland. See, notice in the Federal Register, November 5, 2004, Vol. 69, No. 214, at Page 64620. Location: DOS, Room 2533A.

TIME? Jonathan Zittrain (Harvard Law School) will give a lecture titled "Free Software and the Future of the Internet" as part of the Georgetown Law Colloquium on Intellectual Property & Technology Law. For more information, contact Julie Cohen at 202 662-9871 or jec@law.georgetown.edu, or Jay Thomas at 202 662-9925. Location: Georgetown University Law Center, 600 New Jersey Ave., NW.