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Tech Law Journal |
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| News, records, and analysis of legislation, litigation, and regulation affecting the computer, internet, communications and information technology sectors | |
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10/20. The U.S. Court of Appeals (5th Cir.) issued its opinion in In the Matter of GWI PCS No. 1 v. FCC. General Wireless, Inc. (GWI) was the high bidder for 14 PCS licenses in the FCC's C-block auctions between Dec. 1995 and May 1996. GWI subsequently could not make payments to the FCC, and filed for bankruptcy under chapter 11. The Appeals Court affirmed the U.S. District Court (NDTx) opinion, which affirmed a bankruptcy reorganization plan, which avoided about $894 million of the $954 obligation to the FCC, and allowed GWI's subsidiary debtors to retain the PCS licenses. The FCC lost. However, compare this Appeals Court opinion with the opinion of the Appeals Court for the 2nd Circuit in In re: NextWave Personal Communications Inc. 10/20. Pincay Investments Co. and others filed a complaint in U.S. District Court (NDCa) against Covad and others alleging that defendants made false and misleading statements in violation of §10b of the Securities Exchange Act of 1934, and Rule 10b5. Plaintiffs seek class action status. They are represented by the law firm of Milberg Weiss, which specializes in bringing class action lawsuits against technology companies with volatile stock prices. Covad is a Santa Clara, CA, based DSL service provider. Plaintiffs seek damages. 10/20. The COPA Commission released its report to Congress on protecting child from online porn. It contains no recommendations for new legislation. Rather, it calls for industry self regulation, education, consumer empowerment, and enforcement of existing laws. See, TLJ story. 10/20. Commerce Sec. Norman Mineta concluded his three day campaign tour of western states. On Friday, he was in New Mexico with Sen. Jeff Bingamon (D-NM), who is running for for re-election. Mineta gave several speeches in which he addressed "closing the digital divide in Indian country". He also spoke about the Commerce Department's recent TOP grant to the Pueblo of Santa Ana to fund a broadband wireless intranet. See, speech in Sante Fe to tribal Governors, speech in Sante Fe to the NITI, and speech in Cochiti Pueblo. 10/20. USPTO Director Dickinson gave a speech at the annual meeting of the AIPLA. See, TLJ story regarding Dickinson's comments regarding diversion of patent fees, patent reexaminations, business method patents, and databases protection. See also, TLJ story regarding intellectual property and the American Dream. 10/20. The NTIA released a document titled Plan to Select Spectrum for Third Generation Wireless Systems in the United States. This plan was developed by the NTIA, in cooperation with the Department of Defense, the FCC, and other agencies. The NTIA described this document as "the first step in the process that will allow the FCC to identify spectrum for third generation wireless systems." See, release. 10/19. Bruce Mehlman, lobbyist for Cisco Systems, spoke at a luncheon meeting of the Online Communications Practice Committee of the Federal Communications Bar Association. He addressed many issues, including 3G spectrum reassignment. "That fight is going to be ugly," he said. See, TLJ story. 10/19. The Senate passed S 1854, the "Hart-Scott-Rodino Antitrust Improvements Act of 2000," by unanimous consent. The Senate adopted an amendment in the nature of a substitute which was offered by Sen. Jeff Sessions (R-AL) for Senators Hatch and others. The amendment renames the bill the "21st Century Acquisition Reform and Improvement Act of 2000." It also rewrites Section 2 of the bill, which rewrites Section 7A(a) of the Clayton Act (15 U.S.C. 18a(a)). It still amends the Clayton Act to increase the size of transaction threshold from $15 Million to $50 Million. The bill was originally introduced by Sen. Orrin Hatch (R-UT), Sen. Mike DeWine (R-OH), and Sen. Herb Kohl (D-WI) in Nov. 1999. The bill has not passed the House. 10/19. The BXA published new encryption export rules [PDF] in the Federal Register. These rules amend the Export Administration Regulations that implement the administration's update to its encryption policy announced on July 17. The previous regulatory update took place in January 2000. The new rules allow exports of encryption products to end-users in 23 EU and other nations under a license exception. U.S. companies can export under license exception most encryption products to any end-user in 23 named countries, including the worldwide offices of firms and organizations headquartered in these nations. U.S. companies can ship their products to these nations immediately after they have submitted a commodity classification to BXA, rather than waiting for the review to be completed. The regulation streamlines and reduces post-export reporting requirements for many products containing or preloaded with encryption, including PCs, laptops, handheld devices, network appliances, and short-range wireless technologies. See, Federal Register, Vol. 65, No. 203, at pages 62600-62610. See also, BXA release and summary. 10/19. U.S. Register of Copyrights Marybeth Peters participated on a panel on copyright in cyberspace at the annual meeting of the American Intellectual Property Law Association. She stated that while "the rules don't quite fit yet" for web sites and databases, "registration is still important". She added the Copyright Office will conduct a rule making proceeding, probably in 2001. 10/19. The GAO wrote a report [73 pages in PDF] on consumer choices of ISPs at the request of Sen. Mike DeWine (R-OH) and Sen. Herb Kohl (D-WI), the Chairman and ranking Democrat on the Senate Judiciary Committee's Antitrust Subcommittee. The report is titled "Technological and Regulatory Factors Affecting Consumer Choice of Internet Providers." The report addresses (1) the current distribution of transport modes among consumers and the key technological differences among communications networks used for transport to the Internet; (2) the legal and regulatory differences in how these providers are governed; (3) whether these technological, legal, and regulatory differences are affecting the development of consumer choice of communications companies providing physical transport to the Internet and Internet service providers; and (4) the extent to which users have full access to and choice of portals, applications, and content. The Senators stated that "the report also indicates that as users shift from narrowband to broadband Internet access, competitive options might become limited. Accordingly, it is important to ensure that competition continues to thrive in this expanding market." 10/19. House Majority Leader Dick Armey (R-TX) sent a letter to Atty. Gen. Janet Reno regarding the DOJ's "independent review" of the Carnivore e-mail surveillance system, and related systems. He wrote that "documents recently released under the Freedom of Information Act indicate that the Department of Justice has been busy working on enhanced versions of Carnivore. That leads one to ask, is the review of the current version of the software, or will the review include Carnivore 2.0 and Carnivore 3.0? And will it also include the other tools that are part of the 'DragonWare Suite'?" Rep. Armey also questioned whether the people hired by the DOJ to conduct its independent review are actually independent. 10/19. Ted Waite resigned from his position as a Director of MP3.com, which has been sued under copyright laws by recording companies. Waite is the founder and Chairman of Gateway. See, MP3.com release. 10/19. U.S. Trade Representative Charlene Barshefsky gave a speech at the National Press Club titled "From the Cold War to the Wired World: Trade Policy in the Clinton Era." She cited several high tech trade accomplishments. "The Uruguay Round, vigorous use of WTO dispute settlement, U.S. law and 28 bilateral IPR agreements, led well over 100 countries to adopt modern copyright, patent and trademark laws; and radically improve enforcement." She also reviewed progress in opening markets for high tech goods and services. She also stated that "we will soon inaugurate a major 'networked economy' initiative - easing trade in the high-tech manufactures and services at the heart of the world information infrastructure, and addressing related topics such as intellectual property protection in the digital environment and capacity-building to address concerns about an international digital divide. In doing so, as it opens up export opportunities it will help move our trading partners toward the flexible, sophisticated New Economy we have entered at home." 10/19. Doug Melamed, the Acting Asst. Atty. Gen. for the DOJ Antitrust Division gave a speech at Fordham University titled "Promoting Sound Antitrust Enforcement in the Global Economy." He stated that "The increasing importance of global markets means that nations face an increasing prospect that their economies will be harmed by anticompetitive conduct that takes place, at least to some degree, in other countries. And it means that each country, including the U.S., has an interest in the choices other countries make about the adoption and enforcement of antitrust laws." He continued that "We need to ensure that antitrust works effectively and efficiently in the global economy. Enforcement coherence cannot be defined and decreed, once and for all, by the U.S. or anyone else." 10/19. Commerce Sec. Norman Mineta is on a three day campaign swing through western states promoting "digital divide" programs. He said in a speech in Oakland CA that "I want to help President Clinton and Vice President Gore continue their efforts to work with private and public partners to help close the digital divide for all Americans." See also, speech in San Francisco, speech at the SF Public Library, and release. At all events, Sec. Mineta discussed the NTIA's annual "digital divide" report, titled "Falling Through the Net: Toward Digital Inclusion," which was released on Oct. 16. See, full report [139 pages in PDF] and NTIA release. 10/19. The USTA, a group that represents local exchange carriers, sent a letter to Members of Congress opposing any changes to the law regarding capping cable ownership by a single company. AT&T supports a change. The USTA asserted that "Allowing AT&T to continue to own facilities serving more than 40 percent of America’s cable customers – even for an additional year -- would allow AT&T to raise residential cable prices and dominate the high speed internet market." The Consumers Union also released a statement criticizing AT&T. "This is a blatant attempt by AT&T to circumvent the conditions it agreed to when the FCC cleared the AT&T- MediaOne merger," said CU chief Gene Kimmelman. 10/19. The Board of Directors of the Cellular Telecommunications Industry Association (CTIA) approved the acquisition of the Wireless Data Forum (WDF). The WDF Board of Directors has already approved the merger. See, release. 10/18. The Center for Responsive Politics (CPR), a group which monitors federal election campaign contributions, released its analysis of Federal Election Commission contributions data through Oct. 1. CPR Exec. Dir. Larry Makinson stated that "Only a few years ago, it was said of the computer industry it was just a fingernail on the body politic. Its campaign contributions were miniscule, it had no interest in Washington, it just wanted to be left alone. No more. The past decade has seen a huge rise in contributions from the computer industry ... In 1990, the computer industry ranked 55th out of the 80 or so industries we track, giving about $1.3 million in contributions. By 1996, they’d moved up to 33rd place, with $8.9 million. In 1998, they gave $9.5 million and inched upwards to 25th place on the industry list. So far this election cycle, the industry has given nearly $24 million, and they’re now in 8th place overall." See, Makinson statement. 10/18. Commerce Sec. Norman Mineta gave a speech to the Rotary Club in Seattle in which he addressed international trade issues. He stated that the "Clinton/Gore Administration ... [is] vigilant about fair trade, by making sure that all Americans get the benefits of our trade agreements. Not only consumers, but also workers and communities that are hurt when a plant closes because of foreign competition or because of unfair trade practices -- as we have seen with steel." He did not condemn, or disassociate the administration from, groups that disrupted the WTO meeting in Seattle in Nov. 1999. He also addressed the "digital divide." 10/18. Sec. Mineta gave another speech in Seattle regarding the "digital divide" and the Commerce Department's transfer of computer equipment. He stated that "we opened 500 offices around the country to carry out the decennial census mandated by the Constitution. Now that the Census job is nearly done, we have thousands of computers and printers and other pieces of office equipment that we no longer need. The equipment is worth $5.4 million. We thought about what we could do with the excess goods, and we ultimately decided that we would do the most good by donating much of that equipment to 80 minority serving institutions." See also, DOC release. 10/18. Microsoft Chairman Bill Gates gave a speech in Belle Harbor, WA, in which he addressed the "digital divide." See, MSFT release touting its "digital divide" activities. 10/18. The FCC released a letter [MS Word] to SBC stating a FCC decision governing SBC's deployment of DSL service. The letter was issued in CC Docket No. 98-141, the FCC's antitrust merger review proceeding regarding the merger of SBC and Ameritech. The FCC approved the merger in Nov. 1999, but imposed a set of conditions upon SBC. The effect of these conditions is to give the FCC continuing regulatory authority over SBC activities. The conditions require SBC to work with CLECs in a series of collaborative sessions to obtain written agreement on enhancements to its facilities to enable the provision of DSL service. In the present matter, CLECs sought permission from the FCC to submit to arbitration five matters upon which agreement was not reached. The FCC decided that two should go to arbitration. The FCC ruled on the other three. The letter is signed by Carol Mattey, Deputy Chief of the Common Carrier Bureau. See also, FCC's web site section on its SBC-Ameritech merger review proceeding. 10/18. The National Music Publishers' Association (NMPA), its licensing subsidiary, The Harry Fox Agency (HFA), and MP3.com, announced an agreement on a licensing arrangement that, if approved by individual HFA music publisher principals, will permit the use of over one million musical compositions on MP3.com. MP3.com has also been sued by music publishers. See, MP3.com release. 10/18. Nancy Nathanson, a City Councilor in Eugene, Oregon, was appointed to fill a vacancy on the FCC's Local and State Government Advisory Committee (LSGAC). See, FCC release [MS Word]. 10/18. Bill Clinton announced his intent to appoint Craig Jarolimek to the Advisory Committee for Trade Policy and Negotiations (ACTPN). Jarolimek, is a hog farmer in Forest River, North Dakota, and President of the National Pork Producers Council (NPPC). See, White House release. 10/18. Bill Clinton announced his nomination of Tom Korologos and Robert Ledbetter as members of the Broadcasting Board of Governors. Korologos is a prominent Washington lobbyist. Ledbetter has been VP and General Manager of WTVA TV in Tupelo, Mississippi, since 1977. See, White House release. 10/17. Bill Clinton signed S 2045, the American Competitiveness in the Twenty-First Century Act, a bill which temporarily raises the annual cap on H1B visas. Clinton also signed HR 5362, a bill which raises the fee for H1B applications from $500 to $1,000. See, Clinton statement. 10/17. The FBI's National Infrastructure Protection Center (NIPC) issued an advisory regarding a new DDoS threat. "A new variant of the SubSeven Trojan Horse has been discovered in the wild. This malicious computer code could constitute a new threat of distributed denial of service (DDoS) attacks. DDoS attacks were responsible for serious disruptions of several major e-commerce web sites in February 2000. The NIPC and industry partners believe that this new variant may be used to conduct further DDoS attacks which may be more difficult to detect." 10/17. The GILC released a letter to the Council of Europe stating its objections to the Draft Convention on Cyber-crime [MS Word]. GILC wrote: "we object to provisions that will require Internet Service Providers to retain records regarding the activities of their customers. ... We further object to the conception of "Illegal Devices" set out in Article 6. ... We also object to the dramatic extension of copyright crimes in the proposed Article 10." Moreover, GILC alleged that "Police agencies and powerful private interests acting outside of the democratic means of accountability have sought to use a closed process to establish rules that will have the effect of binding legislation." GILC is a coalition of many groups, including the EPIC, CDT, ACLU, and Privacy International. Marc Rotenberg, Exec. Dir. of the Washington DC based EPIC stated that "government efforts to respond to computer crime must not undermine the political rights of Internet users." 10/17. The Commerce Dept. announced that it will give away "thousands of 'state-of-the-art' Census 2000 computers and equipment" at a campaign event in Seattle WA on Oct. 18. The donees will be "Historically Black Colleges and Universities, Tribal College and Universities and Hispanic Serving Institutions". See, release. 10/17. The SIIA filed a complaint in U.S. District Court against Alpha Train, Inc. alleging copyright infringement. Alpha Train, a company based in Newark, New Jersey, provides computer software training to corporate and individual clients. See, SIIA release. 10/17. WINfirst signed a 5 year, $800 Million agreement with Lucent for equipment, software and services to build a fiber to the home residential network that will provide 100 Mbps of symmetric bandwidth for voice, data and video applications. Lucent stated: "This will enable people to download a DVD movie in eight minutes or an entire album of MP3 songs in only five seconds -- a process that would take eight hours and five minutes, respectively, over today's high-speed connections. Additionally, having the same bandwidth both upstream and downstream will enable people to share files directly with each other through true peer-to-peer networking." See, Lucent release. Peer to peer networking threatens the music and movie industries' ability to enforce their copyrights on digital music and movies. 10/16. The U.S. District Court (SDNY) issued a permanent injunction against Enterprises Solutions, Inc. barring it from violating the antifraud provisions of the Securities Exchange Act of 1934. The company, which purports to be in the Internet security business, and is controlled by a convicted felon, issued a series of press releases baselessly projecting $30 to $50 Million in revenues and falsely claiming to have entered into multi-million-dollar contracts. See, SEC release. 10/16. The IRS issued an document titled "Announcement 2000-84" in which it requests public comment on whether and how the IRS should apply the Internal Revenue Code to regulate speech on the Internet by entities exempt under §501(c)(3). See, TLJ story. 10/16. The SEC obtained preliminary injunctions from the U.S. District Court (WDOk) against BroadBand Wireless International Corp. (BBAN), BroadCom Wireless Communications Corp. (BroadCom), and two individuals. The defendants engaged in a "pump and dump" scheme which included making false and misleading statements in postings to the Raging Bull Internet message board. See, SEC release. 10/16. The NTIA released its annual "digital divide" report, titled "Falling Through the Net: Toward Digital Inclusion." See, full report [139 pages in PDF] and NTIA release. Commerce Sec. Norman Mineta stated in an introduction that "the data in this report show that, overall, our Nation is moving toward full digital inclusion. The number of Americans who are utilizing electronic tools in every aspect of their lives is rapidly increasing. However, a digital divide still remains." He also advocated government programs. "With this information, we can better target and enact policies and programs to close the disparities in access to computers and the Internet that still are being experienced by some in our Nation." Bill Clinton released a statement in which he said that "To ensure that we continue to make progress in bridging the digital divide, I urge Congress to fund the initiatives that I have proposed ..." The report found that the share of U.S. households with Internet access rose from 26.2% in Dec. 1998 to 41.5% in Aug. 2000. However, the report concluded that a "divides still exist between those with different levels of income and education, different racial and ethnic groups, old and young, single and dual-parent families, and those with and without disabilities." 10/16. The FCC released a letter [MS Word] to SBC containing further instructions regarding its provision of DSL service by separate affiliates. Specifically, the letter addressed SBC's incumbent LEC's authority to provide network planning, engineering, design, and assignment services for ADSL service beyond a 180-day time period specified in the Merger Conditions imposed by the FCC on Oct. 8, 1999. At issue was the meaning of ¶3(c)(3) of these conditions. SBC argued that its ILECs could provide network planning and engineering services to their separate affiliates after April 5, 2000. The FCC disagreed. The letter was issued in CC Docket No. 98-141, the FCC's antitrust merger review proceeding regarding the merger of SBC and Ameritech. The letter was signed by Carol Mattey, Deputy Chief of the Common Carrier Bureau. See also, FCC's web site section on its SBC-Ameritech merger review proceeding. 10/16. The FCC held an en banc hearing on the content of television broadcasts. See, statement of Chairman Kennard (D) and statement of Comm'r Tristani (D). 10/16. USITC issued a limited exclusion order in its proceeding based upon a complaint by Atmel against Sanyo, Winbond, and Macronix alleging violation of §337 of the Tariff Act of 1930 for importing into the U.S. certain EPROM and EEPROM flash memory, and flash microcontroller semiconductor devices in violation of various of Atmel's U.S. patents. The USITC issued its notice of final determination, in which it found a violation of §337 of Act, and issued a limited exclusion order. It also denied a motion for dismissal of Atmel's complaint for unclean hands. See, USITC release. See also, USITC docket for Inv. No. 337-TA-395 on reconsideration (with hyperlinks to documents), and USITC docket for Inv. No. 337-TA-395 (also hyperlinked). 10/16. Olivia Morgan, Director of Calif. Gov. Gray Davis's Washington DC office, is leaving to set up a public relations business. See, Davis release. 10/16. The ITAA announced that it conducted a poll of attitudes about computer security and privacy. However, neither the ITAA, nor Fabrizio McLaughlin and Associates, which conducted the poll for the ITAA, released the poll questions or responses. The ITAA is selling it for $500-$750. 10/13. Visteon filed a complaint in Massachusetts state court (Suffolk County) against Lernout & Hauspie (LH) alleging breach of contract. Visteon, a maker of automotive parts, alleges that LH, a speech recognition software producer, breached a May 25, 2000 Operating Agreement for the establishment of the joint venture. See, LH release. 10/13. The BXA published changes to its Export Administration Regulations (EARs) for high performance computers (HPCs) in the Federal Register. The new regulations provide that HPCs with a composite theoretical performance (CTP) of up to 45,000 million theoretical operations per second (MTOPS) can be exported to Computer Tier 2 countries under License Exception CTP, and HPCs with a CTP up to 28,000 MTOPS can be exported Computer Tier 3 destinations under License Exception CTP. The civil-military distinction for computer Tier 3 end- users and end-uses is removed. Effective February 26, 2001, this rule also raises the advance notification level for HPC exports to Computer Tier 3 countries to 28,000 MTOPS. These new regulations took effect on October 13. See, Federal Register, at Vol. 65, No. 1999, pages 60852-60857. 10/13. Bill Clinton issued a Memorandum for the Heads of Executive Departments and Agencies regarding Third Generation (3G) wireless technology. "Neither the first nor the second generation of wireless technologies were designed for multi-media services, such as the Internet. Third generation wireless technologies will bring broadband to hand-held devices," wrote Clinton. He continued that "radio spectrum must be made available for this new use". To this end, "Federal Government agencies and the private sector must work together to determine what spectrum could be made available for third generation wireless systems ... by July 2001". He also encouraged the FCC "to initiate a rule-making proceeding". See also, statement by Clinton, and statements by Greg Rohde (NTIA), Linton Wells (Defense Dept.), Martin Baily (CEA), Susan Ness (D-FCC), and Bill Kennard (D-FCC). In addition, Clinton's Council of Economic Advisors released a report [PDF] titled "The Economic Impact of Third-Generation Wireless." 10/13. FTC Chairman Robert Pitofsky spoke at the National Association of Manufacturers regarding antitrust regulation and business to business (B2B) ventures. He praised B2Bs for their potential to increase market efficiencies. However, he cautioned that the FTC would enforce the antitrust laws if any B2Bs are used to "facilitate price coordination" or abuse their market power. He added the policy of the FTC is to "protect the marketplace, and don't undermine the incentives to innovate." He concluded that the argument "we are high tech, the antitrust laws do not apply to us," does not fly at the FTC. 10/13. Justin Lilley, the outgoing Telecom Counsel for the House Commerce Committee (HCC), has been named Vice President, Government Relations, for News Corporation. For years Lilley has sat to the right of Rep. Billy Tauzin (R-LA), Chairman of the House Telecom Subcommittee, at hearing and markups regarding major telecom and e-commerce bills. Lilley previously worked for the law office of Kellogg Huber. He joined the minority staff of the HCC in 1988. Recently, he worked on the Satellite Home Viewer Improvements Act, the Digital Millennium Copyright Act (DMCA), and the Electronic Signatures in Global and National Commerce Act (ESIGN). He also worked on HR 1858, the HCC's bill to weaken intellectual property rights in databases (which passed the HCC in Aug. 1999, but went no further). Rep. Tom Bliley (R-VA), Chairman of the HCC, is retiring at the end of the 106th Congress. Fox Corp. is involved in motion pictures and TV programming; TV broadcasting, satellite, and cable; publication of newspapers, magazines, and books; and Internet content. Its major properties include Fox Broadcasting, Fox News, Fox Interactive, Twentieth Century Fox, BSkyB, London Times, London Sun, New York Post, Harper Collins, and the LA Dodgers. Rupert Murdoch and his family own about 30% of News Corp. 10/13. Bill Clinton announced his intent to nominate Gregory Frazier as the USTR Special Trade Negotiator for Agriculture and Food Policy. Agriculture trade issues are sometimes intertwined with other trade issues that affect high tech industries. See, release. 10/13. The ICANN published a statement regarding the status of TLD applications. The update states that ICANN is in the process of posting the non-confidential portions of the applications. See, links to applications. 10/12. The House Commerce Committee issued its report on HR 3011, the Truth in Telephone Billing Act. See, House Report 106-978. The bill would add a new section 258(c) to the Communications Act requiring telecommunications carriers to identify on each subscriber's monthly statement: (1) the government program for which the carrier is being taxed, and the government entity imposing the tax; (2) the form in which the tax is assessed (e.g., per subscriber, per line, percentage of revenues); and (3) a separate line-item that identifies the dollar amount of the subscriber's bill that is being used by the carrier to pay for the government program. That is, phone companies would be required to tell their customers that they are being taxed to pay for the e-rate. 10/12. The FCC amended its rules regarding disclosure of non-public information by the FCC, to require that parties regulated or practicing before the FCC to return any documents improperly leaked by the FCC. "This Order would seem to help curtail the flood of document leaks," said Comm'r Powell (R) in a statement. "The regular pattern of leaks of pre-decisional written material is intolerable." In particular, the Washington Post has been reporting on confidential pre-decisional documents in the AOL Time Warner antitrust merger review proceeding. Chairman Kennard (D) also released a statement; he said that "While this requirement cannot prevent a leak, it will inform us that a leak has occurred." Comm'r Furchtgott-Roth (R) issued a dissent: "Rather than burdening the communications industry and bar with yet another layer of regulation, the Commission should first enforce the existing rule. After all, leaks spring from the inside, not the outside, of this building." See, FCC release. 10/12. The FCC held a Commission Meeting. It announced that it has taken action on three proceeding regarding requiring the owners of apartment building to provide access to their property to telecommunications and Internet service providers. The FCC issued a press release, but no order. The release states, among other things, that "the FCC forbade telecommunications carriers in commercial settings from entering into exclusive contracts with building owners, including contracts that effectively restrict premises owners or their agents from permitting access to other telecommunications service providers." The order limits the activity of service providers, rather than real estate owners, thus averting a Fifth Amendment takings clause challenge from the real estate industry. See, also statement by Chairman Kennard. (WT Docket No. 99-217, CC Docket No. 96-98, and CC Docket No. 88-57.) 10/12. The FCC allocated for commercial wireless services 50 MHz of spectrum located in the 3650-3700 MHz band. It can be used for both fixed and mobile commercial wireless services, including broadband Internet access. See, FCC release. 10/12. The FCC issued a notice [PDF] requesting public comment on the merger of Deutsche Telekom (DT) and VoiceStream and Powertel. Comments are due by Nov. 13; oppositions and responses are due by Nov. 27. (IB Docket 00-187) DT is currently 58% owned by the German government. Sen. Ernest Hollings (D-SC) has objected to the merger, and introduced legislation any FCC license from being held by a company that is 25% owned by a foreign government. See, S 2793. 10/12. The Senate passed bill which includes a provision to repeal the federal excise tax on telephones, by a vote of 58 to 37. It was attached to HR 4516, the FY 2001 appropriations bill for the Treasury Dept., Legislative Branch, and GSA. 10/12. The Dispute Settlement Body of the WTO approved a one month extension in the deadline for the US to come into compliance with its ruling that the US Foreign Sales Corporations (FSC) tax regime constitutes an illegal export subsidy. The US and EU had already agreed to this extension, and the WTO decision was expected. The House has passed, and the Senate is considering, replacement legislation (HR 4986). However, the EU will also assert that this constitutes an illegal export subsidy. While the EU is challenging the FSC regime to obtain a bargaining chip in negotiations over other trade disputes regarding beef and bananas, if a settlement is not reached, and the EU takes retaliatory measures, US high tech exporters, such as Microsoft and Intel, which benefit significantly from the FSC regime, would likely be targeted. See, WTO release. 10/12. The Dispute Settlement Body of the WTO adopted the panel and Appellate Body reports that the Canadian Patent Act, which provides for a term of 17 years from the date of issuance for certain older patents, violates Canada's obligations under TRIPS. See, WTO release. See also, Report of the Appellate Body dated Sept. 18, and TLJ story of Sept. 19. 10/12. The USTR presented its 4th annual submission on deregulation and competition policy to Japan. The report addresses several e-commerce issues, including security, privacy, carrier liability, e-government procurement, and Internet threats to intellectual property. It also addresses telecom regulation in Japan. The report recommends that Japan "Revise existing laws and regulations that constrain the growth of e-commerce such as requirements for face-to-face transactions, requirements for paper-based documentation" and "Implement its digital signature law in a manner that is flexible and market-based, and also clearly respects the rights of parties to choose the method for authenticating their electronic transaction." On intellectual property, the report recommends that Japan: • "Clarify that the Japanese copyright law prohibits unauthorized 'temporary copies' as per the WIPO Copyright Treaty" • "Amend the copyright law to clarify that the personal use exception does not apply in the digital environment" • "Amend the Copyright Law to provide for statutory damages" • "Ensure, consistent with the WTO TRIPS agreement, that business method patents, particularly relating to the Internet, are protected in Japan." See also, USTR release. The report is also available in PDF. 10/12. The USITC voted to institute an investigation of certain HSP soft modems. The investigation is based on a complaint filed by PCTEL on Sept. 15, and supplemented on Oct. 3, which alleges violations of § 337 of the Tariff Act of 1930 in the importation into the US, and the sale within the US, of HSP modems that infringe on PCTEL's patents. The respondents are Smart Link and ESS Technology. (Investigation No. 337-TA-439) The case has been referred to ITC administrative law judge Debra Morriss. See, USITC release. PCTEL also filed a complaint in U.S. District Court (DMa) against Smart Link on Aug. 10 alleging patent infringement. Smart Link filed a counterclaim against PCTEL on Aug. 31 alleging infringement of its patents. See also, Smart Link's Aug. 15 release and Aug. 28 release, and PCTEL's Aug. 31 release. 10/12. Commerce Sec. Norman Mineta, NTIA chief Greg Rohde, Rep. Edolphus Towns (D-NY), and Rep. Major Owens (D-NY) held a "digital divide" event in the Longworth House Office Building. They addressed Internet access at historically black colleges and universities. See, Mineta speech and DOC release. See also, NTIA's digital divide web site. 10/12. The Recording Industry Association of America (RIAA) announced that it has launched a project to develop a standardized system for identifying digital files of sound recordings. See, release. 10/12. Scour.com filed for Chapter 11 bankuptcy in U.S. Bankruptcy Court (CDCa). See, release. Scour, an Internet file sharing business, has been sued for copyright infringement by the members of the MPAA and RIAA. See, complaint [PDF] filed on July 20. 10/12. Commissioner Gloria Tristani, who supports the FCC's "political editorial" rules, is not giving up. She called for a new rule making proceeding. She released a statement saying that she is "saddened" by the Oct. 11 Court decision in RTNDA v. FCC. She also argued that "Whether the rules properly balance the competing constitutional rights at issue is a question left open by today's ruling." (The Court wrote in its 1999 Opinion that the rules "interfere with editorial judgment of professional journalists and entangle the government in day- to- day operations of the media," and "chill at least some speech, and impose at least some burdens on activities at the heart of the First Amendment.") FCC Chairman Kennard also released a statement; he intends to "move forward promptly to study the public interest obligations of broadcasters in the digital age, including whether these rules should be reinstated." Commissioner Furchtgott-Roth, wrote that the "political editorial rules" belong in a "museum." He released a statement saying that the "legitimate basis for such regulation, if it ever existed, has long since evaporated" with the development of competing media. 10/11. ADE filed a complaint in U.S. District Court (DDel) against KLA-Tencor Corp. alleging patent infringement. ADE, which makes automated metrology and inspection systems for wafer manufacturing and the computer disk drive industry, alleges infringement of U.S. Patent No. 6,118,525, titled "Wafer Inspection System for Distinguishing Pits and Particles". See, ADE release. 10/11. iNoise.com, based in Vancouver BC, announced that its has developed a peer to peer distributed networking system that allows users to "share" music. It provides for the streaming of music files in real time, rather than file copying, as is done by Napster. iNoise thus asserts that there is no copyright infringement. See, release. 10/11. The U.S. Court of Appeals (DCCir) issued an opinion and order in RTNDA v. FCC, which contains a writ of mandamus directing the FCC "immediately to repeal the personal attack and political editorial rules." The Court was unimpressed with the FCC's Oct. 4 Order [PDF] suspending its "political editorial" rules for 60 days. That order asked for broadcasters to submit information regarding the rules, but provided no basis for the rules. At issue is the FCC's attempt to regulate the political speech of broadcasters. The rules require broadcasters to give away free air time if they make endorsements or personal attacks. Broadcasters challenge its constitutionality. On Aug. 3, 1999, the Court patiently issued an Opinion in which it stated that "Without a clear explanation for the rules, the court is not in a position to review whether they continue to serve the public interest, and whether they burden First Amendment interests too severely. ... Accordingly, rather than enjoining enforcement of existing rules that the FCC might be able to justify, we must remand the case for the FCC to further explain its decision not to repeal or modify them." The Court impatiently wrote on Oct. 11 that "its remand order for expeditious action was ignored." The Court determined that the FCC was merely postponing compliance with the Court's order, while keeping the rules in effect. The Court used the words "folly" and "incredibly" to describe the FCC's Oct. 4 Order. This proceeding began in 1980. 10/11. The Free Congress Foundation sent a letter to Congressional leaders opposing inclusion of the Children's Internet Protection Act in HR 4577. The measure, which is backed by Sen. John McCain (R-AZ), Sen. Rick Santorum (R-PA), Rep. Ernest Istook (R-OK), Rep. Chip Pickering (R-MS), and others, would require that school and libraries that receive federal funds for Internet access to install porn filtering software. See also, Sept. 28 letter from the CDT. Go to News Briefs from Oct. 1-10, 2000.
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