12/29. The U.S. Court of Appeals (10thCir) issued its opinion in Microsoft v. MBC Enterprises, reversing the District Court's summary judgment for Microsoft in a case in which Microsoft alleges that defendants bought and sold counterfeit Microsoft software.

MBC Enterprises is a wholesale distributor of software based in Salt Lake City, Utah. It buys Microsoft software, but not from Microsoft, or any distributor licensed by Microsoft. It then resells the software. It insists that it carefully inspects the software that it buys to determine that it is not counterfeit. The individual defendants are owners and managers of MBC.

Microsoft asserts that MBC purchased counterfeit software from a company named Bantech, and resold it. The evidence includes information obtained by an FBI raid of Bantech that it acquired Microsoft from Singapore at below market prices, that it possessed counterfeit software, including 300 units of counterfeit Windows software that were packaged and labeled for FedEx shipment to MBC's address, and that the sales price was below market price.

Microsoft also asserts that MBC sold certain other counterfeit software to another company named Mr. Software. The evidence included the deposition testimony of an employee of Mr. Software.

Microsoft filed a complaint in U.S. District Court against MBC alleging copyright infringement and federal trademark infringement. The District Court held that there were no material facts in dispute, and granted summary judgment to Microsoft.

The Court of Appeals reversed. It held that there are material facts in dispute, reversed the summary judgment, and remanded to the District Court.

The Court of Appeals characterized the facts presented by Microsoft with respect to Bantech as circumstantial. It reasoned that the facts did not actually establish that MBC purchased counterfeit software, or how much.

MBC had also sought a malicious discovery order from the District Court. It asked for, and received from the Magistrate Judge, an order compelling Microsoft to disclose "all methods and manners Microsoft employ[ed] to detect counterfeit software". This and related information covered by the order, if made public, would have compromised Microsoft's anti-counterfeiting efforts. The Judge of the District Court modified the magistrate's order, and relieved Microsoft of the obligation to disclose such information. And, on appeal, the Court of Appeals affirmed the District Court.

The Appeals Court, having reversed the summary judgment, also vacated the award of attorneys fees and permanent injunction. The case goes back to the District Court, where Microsoft may yet prevail upon trial on the merits.

The Court of Appeals also wrote, without explanation, or apparent reason, that "This order and judgment is not binding precedent".

The case is Microsoft Corporation v. MBC Enterprises, James D. Craghead, Steve Blackburn, and Marianne Blackburn, U.S. Court of Appeals for the 10th Circuit, App. Ct. No. 04-4017, an appeal from the U.S. District Court for the District of Utah, D.C. No. 2:00-CV-217-PGC. Mary Briscoe wrote the opinion of the Court of Appeals, in which Judges Kelly and Baldock.

12/22. The Federal Communications Commission's (FCC) Wireline Competition Bureau's (WCB) Industry Analysis and Technology Division (IATD) released a report [25 pages in PDF] titled "High-Speed Services for Internet Access: Status as of June 30, 2004".

The report finds that "Subscribership to high-speed services for Internet access increased by 15% during the first half of 2004, to a total of 32.5 million lines in service."

Of these, 18,592,636 were cable, 11,398,199 were DSL, 1,407,121 were other wireline, 638,812 were fiber, and 421,690 were satellite or wireless.

This report, and the similar reports that the FCC has produced, use a very minimal definition of "high speed". It is "a connection to an end-user customer that is faster than 200 kbps in at least one direction".

The report also contains state level data on the number of customers and number of service providers, by access technology. See also, FCC release [2 pages in PDF].

12/22. The Federal Communications Commission's (FCC) Wireline Competition Bureau's (WCB) Industry Analysis and Technology Division (IATD) released a report [24 pages in PDF] titled "Local Telephone Competition: Status as of June 30, 2004".

This report, which is issued twice per year, finds that the competitive local exchange carriers' (CLEC) total number of end-user switched access lines continued to grow (to 180,086,735), and that CLECs' share of end-user switched access lines continued to grow (to 17.8%).

The report finds also that incumbent local exchange carriers' (ILEC) total number of end-user switched access lines continued to drop (to 148,103,506).

Moreover, the combined total of all end-user switched access lines dropped (to 180,086,735); this trend began back in 2001. The report does not offer explanations for this trend.

1/1. Rep. Bob Matsui (D-CA) died. He represented a Sacramento, California district in the House since 1978. He had a more technology friendly voting record than most Democrats in the House. He was also the third ranking Democrat on the House Ways and Means Committee, which has jurisdiction over tax, social security and trade issues. Rep. Charles Rangel (D-NY) is the ranking Democrat. Rep. Fortney Stark (D-CA) is second. And, Rep. Sander Levin (D-MI) is now the third ranking Democrat. Rep. Matsui was also the ranking Democrat on the Social Security Subcommittee.

12/31. William Kovacic, the former General Counsel of the Federal Trade Commission (FTC), left the FTC on December 31, 2004. He will return to the George Washington University Law School. See, FTC release. John Graubert, who has been the Principal Deputy General Counsel of the FTC since 2001, will be the acting General Counsel. He joined the FTC in June of 1998. See also, TLJ story titled "Antitrust Lawyer Named to Top Spot at Federal Trade Commission", June 16, 1998.

12/30. The Copyright Office published a notice in the Federal Register that announces the voluntary negotiation period for the purpose of determining the royalty fees for analog signals to be paid by satellite carriers under the satellite carrier compulsory license. This period commences on December 30, 2004, and concludes on January 10, 2005. See, December 30, 2004, Vol. 69, No. 250, at Pages 78482 - 78483.

12/28. The Federal Trade Commission (FTC) released an Order Reopening and Modifying Order [7 pages in PDF] that modifies its 1996 order in its proceeding titled In the Matter of Time Warner, Inc., et al., FTC Docket No. C-3709. This modifies the original order as it applies to Liberty Media Corporation and its continuing ownership of Time Warner stock during the term of the order. See also FTC release and FTC release of September 3, 2004 announcing Liberty's petition.

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There was no issue of the TLJ Daily E-Mail Alert on Friday, December 31, 2004.

The House will next meet on January 4, 2004 at 12:00 NOON. See, Republican Whip Notice.

The Senate will next meet on January 4, 2005 at 12:00 NOON.

The Supreme Court will next meet on Monday, January 10, 2005. See, Order List [9 pages in PDF] at page 9.

The National Press Club will be closed.

12:00 NOON. Deadline to submit comments to the office of the U.S. Trade Representative (USTR) regarding the selection of four U.S. law schools, the degrees of which will be recognized by Singapore for admission to the Singapore bar, pursuant to the U.S. -- Singapore Free Trade Agreement. See, notice in the Federal Register, December 8, 2004, Vol. 69, No. 235, at Pages 71095 - 71096.

Deadline to submit comments to the National Archives and Records Administration (NARA) in response to its notice of proposed rulemaking regarding permitting the destruction of "very short-term temporary e-mail" of federal agencies. See, notice in the Federal Register, November 3, 2004, Vol. 69, No. 212, at Pages 63980 - 63981.

The House will meet at 12:00 NOON. See, Republican Whip Notice.

The Senate will convene at 12:00 NOON. It will not meet again until January 20. See, Senate calendar.

10:00 AM. Thomas Donohue (P/CEO of the U.S. Chamber of Commerce) and Bruce Josten (VP for Government Affairs) will host a press breakfast. They will announce the Chamber's 2005 policy priorities, economic forecast and legislative outlook, and answer questions. RSVP to 202 463-5682 or press@uschamber.com. Location: U.S. Chamber of Commerce, 1615 H Street, NW.

2:00 - 4:00 PM. The Department of State's International Telecommunication Advisory Committee (ITAC) will meet to prepare for the International Telecommunications Union's ITU-T Study Group 3 (tariff and accounting principles) meeting. See, the ITU's calendar of meetings. See, notice in the Federal Register, December 20, 2004, Vol. 69, No. 243, at Page 76027. For more information, including the location, contact Julian Minard at minardje@state.gov. Location: undisclosed.

10:00 AM. The Senate Judiciary Committee will hold a hearing on the nomination of Alberto Gonzales to be Attorney General. Sen. Arlen Specter (R-PA) will preside. See, notice. Location: Room 216, Hart Building.

10:00 AM. The Senate Health, Education, Labor and Pensions Committee will hold a hearing on the nomination of Margaret Spelling to be Secretary of Education. Location: Room 430, Dirksen Building.

2:30 PM. Secretary of Homeland Security Tom Ridge will participate in a press conference announcing the National Response Plan. The DHS's notice also states that "Press wishing to attend this event must present valid press credentials and arrive no later than 2:15 PM". Location: National Governors' Association, Hall of the States, 444 N. Capitol St., NW.

Deadline to submit comments to the Export-Import Bank of the United States regarding its notice in the Federal Register that states that it "has received an application to finance the export of approximately $1.2 billion in U.S. semiconductor manufacturing equipment to dedicated foundries in China." The notice adds that "The U.S. exports will enable the dedicated 200-mm and 300-mm foundries to produce approximately 80,000 wafers per month (200-mm equivalent) of logic products. Available information indicates that some of this new production will be exported from China and consumed globally." See, Federal Register, December 23, 2004, Vol. 69, No. 246, at Page 76945.

Deadline to submit nominations to the Federal Communications Bar Association (FCBA) for its Executive Committee and Foundation. Send nominations to Alexandra Wilson at alexandra.wilson@cox.com.

EXTENDED TO JANUARY 24. Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its notice of proposed rulemaking (NPRM) regarding service rules for advanced wireless services (AWS) in the 1915-1920 MHz, 1995-2000 MHz, 2175-2180 MHz and 1.7 GHz and 2.1 GHz bands. The FCC adopted this NPRM at its September 9, 2004 meeting, and released the text on September 24, 2004. It is FCC 04-218 in WT Docket No. 04-356 and WT Docket No. 02-353. See, notice in the Federal Register, November 2, 2004, Vol. 69, No. 211, at Pages 63489-63498. See also, story titled "FCC Makes Additional 20 MHz of Spectrum Available for Advanced Wireless Services" in TLJ Daily E-Mail Alert No. 975, September 13, 2004. See, extension notice in the Federal Register, November 30, 2004, Vol. 69, No. 229, at Pages 69572 - 69573.

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in Charles Crawford v. FCC, No. 04-1031. Judges Randolph, Tatel and Garland will preside. Location: Prettyman Courthouse, 333 Constitution Ave., NW.

12:15 - 4:30 PM. The American Enterprise Institute (AEI) will host an event titled "China and the Global Economic Recovery". The speakers will be Anne Krueger (International Monetary Fund), Randal Quarles (Treasury Department), Pieter Bottelier (SAIS, Johns Hopkins University), Jeffrey Frankel (Harvard University), Morris Goldstein (Institute for International Economics), John Makin (AEI), Li Shantong (China Development Research Center), and Desmond Lachman (AEI). See, notice. Location: AEI, 12th Floor, 1150 Seventeenth Street, NW.

5:30 - 7:00 PM. Tamar Jacoby (Manhattan Institute) will give a lecture titled "Immigration Reform: Politics and Prospects". See, notice. Location: American Enterprise Institute (AEI), 12th Floor, 1150 17th St., NW.

Deadline to submit to the Federal Communications Commission (FCC) petitions to deny the applications of NextWave Telecom and Cellco Partnership dba Verizon Wireless for FCC approval of their proposed transfer of control of broadband Personal Communications Services (PCS) licenses from NextWave to Cellco. See, FCC notice [4 pages in PDF]. This notice is DA 04-3873 in WT Docket No. 04-434.

Effective date of the Federal Communications Commission's (FCC) final rule regarding the former ITFS, MDS, and MMDS. The FCC adopted its Report and Order at its June 10, 2004 meeting. The FCC released the text on July 29, 2004 (FCC 04-135), and then released a modified item on October 29, 2004 (FCC 04-258). This is WT Docket 03-66. See, notice in the Federal Register, December 10, 2004, Vol. 69, No. 237, at Pages 72019 - 72047. See also, story titled "FCC Adopts RO & NPRM Re ITFS/MDS Band" in TLJ Daily E-Mail Alert No. 916, June 11, 2004.

Deadline to submit comments to the Federal Communications Commission's (FCC) in response to the further notice of proposed rulemaking (FNPRM) portion of its Report and Order and FNPRM regarding the former ITFS, MDS, and MMDS, now named the Broadband Radio Service (BRS) and the Educational Broadband Service (EBS), in the 2496-2690 MHz band. The FCC adopted this item at its June 10, 2004 meeting. The FCC released the text on July 29, 2004 (FCC 04-135), and then released a modified item on October 29, 2004 (FCC 04-258). This is WT Docket 03-66. See, notice in the Federal Register, December 10, 2004, Vol. 69, No. 237, at Pages 72019 - 72047. See also, story titled "FCC Adopts RO & NPRM Re ITFS/MDS Band" in TLJ Daily E-Mail Alert No. 916, June 11, 2004.

End of voluntary negotiation period for determining the royalty fees for analog signals to be paid by satellite carriers under the satellite carrier compulsory license. See, Copyright Office's notice in the Federal Register, December 30, 2004, Vol. 69, No. 250, at Pages 78482 - 78483.