Top Stories from 2004

Top Stories from 2004

Powell Says FCC Plans to Auction 3G Spectrum in Summer of 2006
12/29. Federal Communications Commission (FCC) Chairman Michael Powell sent a letter [PDF] to National Telecommunications and Information Administration (NTIA) head Michael Gallagher in which he stated that the FCC "plans to commence the auction of licenses in the 1432-1435 MHz band and the 1710-1755 MHz band as early as June 2006".

Bush to Renominate 20 for Federal Judgeships
12/23. President Bush announced his intent to nominate twelve persons to be judges of the U.S. Court of Appeals. See, statement by President Bush. The twelve are as follows:
Terrence Boyle (4th Circuit)
William Haynes (4th Circuit)
Priscilla Owen (5th Circuit)
David McKeague (6th Circuit)
Susan Neilson (6th Circuit)
Henry Saad (6th Circuit)
Richard Griffin (6th Circuit)
William Myers (9th Circuit)
William Pryor (11th Circuit)
Janice Brown (DC Circuit)
Brett Kavanaugh (DC Circuit)
Thomas Griffith (DC Circuit).

European Court of First Instance Denies Microsoft's Application for Interim Measures
12/22. The Court of First Instance of the European Communities issued an order that dismisses in its entirety Microsoft's application for interim measures. That is, Microsoft has appealed the European Commission's (EC) March 24, 2004 decision that orders its to pay money, redesign its operating system, and give proprietary information to its competitors. Microsoft also requested that the Court of First Instance (CFI) stay the enforcement of the decision pending resolution of the merits of the appeal. The CFI just denied this request, basically, on the basis the Microsoft will not suffer irreparable injury by enforcement of the decision at this time. The just released order concedes that Microsoft may yet prevail before the CFI on the merits of the appeal.

FCC Adopts Unbundling Order
12/15. The Federal Communications Commission (FCC) adopted, but did not release, an Order on Remand regarding incumbent local exchange carriers' (ILECs) obligations under 47 U.S.C. § 251 to make their network elements available on an unbundled basis. The FCC issued a short release [2 pages in PDF] that describes this order.

Supreme Court Denies Cert in Copyright and Reverse Passing Off Case
12/13. The Supreme Court denied certiorari, without opinion, in Silverstein v. Penguin Putnam, a compilation copyright and reverse passing off case. See, Order List [6 pages in PDF] at page 5. This lets stand the opinion [PDF] of the Second Circuit, which reversed a summary judgment for the author of a compilation of old poems. The case now goes back to the District Court for trial. See also, Petition for Writ of Certiorari [40 pages in PDF] of Silverstein.

Baucus Criticizes Administration Failure to Negotiate Free Trade Agreements in Asia
12/8. Sen. Max Baucus (D-MT), the ranking Democrat on the Senate Finance Committee, gave a speech [PDF] to the Institute of International Economics in which he criticized the Bush administration's failure to more actively pursue free trade agreements (FTAs) with Asian nations.

Supreme Court Rules on Fair Use in Trademark Case
12/8. The Supreme Court issued its opinion [15 pages in PDF] in KP Permanent Makeup v. Lasting Impressions, a trademark case. The Court held that "a plaintiff claiming infringement of an incontestable mark must show likelihood of consumer confusion as part of the prima facie case, 15 U. S. C. § 1115(b), while the defendant has no independent burden to negate the likelihood of any confusion in raising the affirmative defense that a term is used descriptively, not as a mark, fairly, and in good faith". It vacated the judgment of the Court of Appeals.

Supreme Court Grants Certiorari in Brand X Case
12/3. The Supreme Court issued an order [1 page in PDF] in which it granted petitions for writ of certiorari in NCTA v. Brand X Internet Services, No. 04-277, and FCC v. Brand X Internet Services, No. 04-281. The Court also consolidated the two cases. This decision to hear the case is a victory for Federal Communications Commission (FCC) Chairman Michael Powell, and the majority on the FCC.

Appeals Court Finds MPAA Not Liable for Good Faith Exercise of DMCA Notice and Takedown Procedure
12/1. The U.S. Court of Appeals (9thCir) issued its opinion [13 pages in PDF] in Rossi v. MPAA, a state tort case in which a web site operator (Rossi) alleged that a copyright holder (MPAA) wrongfully served a DMCA notice and take down letter upon his internet service provider. The District Court granted summary judgment to the MPAA. The Court of Appeals affirmed. In particular, it held that the notice and take down provisions require only a subjective good faith belief on the part of the copyright holder, and good faith can be present even where the copyright holder is mistaken.

SBC Files Tariff with FCC on Service for VOIP Providers
11/26. SBC's Southwestern Bell Telephone Company (SWBT) filed a tariff with the Federal Communications Commission (FCC) on Wednesday evening, November 24, 2004. The tariff pertains to SBC's service for voice over internet protocol (VOIP) service providers that it has named "TIPToP", a partial acronym for "True Internet Protocol To Public Switched Telephone Network". It is now a voluntary service. VOIP providers need not purchase it to access SBC's customers on the Public Switched Telephone Network (PSTN). See, tariff filings, part 1, part 2, and part 3. On Friday, November 26, FCC Chairman Michael Powell wrote in a statement [PDF] that he is committed to ensuring that the FCC avoid "any action that might slow the IP-services revolution".

Senate Approves Copyright Bill
11/20. The Senate amended and approved by unanimous consent S 3021, the "Family Entertainment and Copyright Act of 2004" on Saturday, November 20, 2004. The House has yet to approve this large composite bill.

Congress Approves Omnibus Appropriations Bill
11/20. The House and Senate both approved on November 20, 2004 an huge omnibus appropriations bill that provides appropriations for fiscal year 2005 for most of the technology related executive branch entities. Also, while it is an appropriations bill, it also includes many substantive law provisions.

FCC Adopts Order on Vonage's VOIP Petition
11/9. The Federal Communications Commission (FCC) adopted, but did not release, a Memorandum Opinion and Order that addressed Vonage Holdings Corporation's Petition for Declaratory Ruling regarding its DigitalVoice service in the state of Minnesota. The FCC found that Vonage's voice over internet protocol (VOIP) service, which is named DigitalVoice, is an interstate service, and that Minnesota cannot regulate as it had proposed in a September 2003 order. However, the FCC's order leaves many VOIP related issued to be decided by other proceeding, and perhaps, court opinions and/or legislation.

District Court Holds Copyright Registration Invalid on Technicality
11/8. The U.S. District Court (EDPenn) issued an opinion [17 pages in PDF] in Gallup v. Kenexa, a copyright infringement case in which the District Court granted summary judgment to an alleged infringer on the basis that the copyright registration was invalid because the attached copy of the work was not the original, but rather a slightly modified revision. The opinion offers defense counsel for pirates and infringers additional arguments and authority for defeating or delaying copyright infringement actions based upon technical defects in the registration of the copyright. However, in the context of copyrights for web sites, blogs, web pages, and other digital works, this and related opinions are a bonanza for infringers.

Cato Panel Criticizes Spyware Bills
11/5. The Cato Institute held a panel discussion titled "Here We Go Again: Congress Attempts to Outlaw Spyware". The speakers were Commissioner Orson Swindle of the Federal Trade Commission (FTC), Jim Harper, Cato's Director of Information Policy Studies, and Susan Chamberlin, Cato's VP for Government Affairs. Commissioner Swindle suggested that spyware legislation could do more harm than good. He also stated that in the area of information technology, "by the time we solve the problem legislatively, the problem no longer exists", because industry has already solved it. He said that he believes that industry can solve this problem.

Summary of the Senate Elections
11/2. Going into the election, there were 51 Republicans and 48 Democrats, and Sen. James Jeffords (VT), who voted with Democrats for organizational purposes. At the start of the 109th Congress, there will be 55 Republicans. Senate Republicans retained control of the Senate, and slightly expanded their margin.

Powell Addresses Spectrum Policy and Proceedings
10/27. Federal Communications Commission (FCC) Chairman Michael Powell gave a speech [PDF] titled "The Wireless Broadband Express" on October 26. He spoke about the FCC's spectrum related initiatives at a convention in San Francisco hosted by the CTIA. Then, on October 27, he gave a speech [PDF] in Las Vegas titled "WISPs: Bringing the Benefits of Broadband to Rural America". He advocated "more broadband spectrum", "greater licensing flexibility", allowing "the competitive market to determine the technology standards for mobile broadband", and "pro-competitive and deregulatory policies" in his San Francisco speech. He spoke about the "democratization of communications", "empowerment" and how the FCC's "unlicensed rules have been a hotbed for wireless broadband innovation" in his Las Vegas speech.

DOJ Approves Cingular's Acquisition of AT&T Wireless, Subject to Divestitures
10/25. The Department of Justice (DOJ) approved Cingular Wireless's acquisition of AT&T Wireless, subject to divestiture of assets in 13 markets. Cingular Wireless is a joint venture between SBC Communications Inc. and BellSouth Corporation.

DOJ Releases Policy Guide to Remedies for Anticompetitive Mergers
10/21. The Department of Justice's (DOJ) Antitrust Division released a document titled "Antitrust Division Policy Guide to Merger Remedies". Section 15 of the Clayton Act, which is codified at 15 U.S.C. § 25, and Section 4 of the Sherman Act, which is codified at 15 U.S.C. § 4, authorize the DOJ to challenge mergers and acquisitions. This Guide states that its purpose "is to provide Antitrust Division attorneys and economists with a framework for fashioning and implementing appropriate relief short of a full-stop injunction in merger cases."

9th Circuits Affirms Judgment Against Corporate Hacker
10/15. The U.S. Court of Appeals (9thCir) issued its opinion [14 pages in PDF] in Creative Computing v. Getloaded.com, a Section 1030 case in which the Court of Appeals affirmed the District Court judgment against a corporate hacker. In addition, the Court of Appeals affirmed an injunction against visiting the plaintiff's web site.

FCC Rules ILECs Have No § 251 Unbundling Obligations for FTTC
10/14. The Federal Communications Commission (FCC) adopted, but did not release, an Order on Reconsideration regarding broadband unbundling obligations. The FCC issued a short release that states that the order "relieves incumbents from unbundling requirements for fiber-to-the-curb (FTTC) loops, where fiber is extended within 500 feet of a customer's premises."

Senate Judiciary Committee Approves Large Collection of Copyright Bills
10/7. The Senate Judiciary Committee approved a package of copyright bills at a meeting late on Thursday, October 9, 2004. This composite bill is titled the "Intellectual Property Protection Act of 2004", or "IPPA". See, text of bill [44 pages in PDF], and text of bill, in HTML, with hyperlinked table of contents, and U.S.Code hyperlinks.

House Passes First Spyware Bill
10/5. The House passed HR 2929, the "Securely Protect Yourself Against Cyber Trespass Act", or SPY ACT, on a roll call vote of 399-1. See, Roll Call No. 495. HR 2929 is the House Commerce Committee's spyware bill.

FCC Officials Discuss VOIP Regulation
9/29. The Federal Communications Commission's (FCC) Wireline Competition Bureau (WCB) hosted an event at which senior officials in the WCB discussed issues before the FCC and WCB, including regulation of voice over internet protocol (VOIP) applications and services.

House Approves Copyright Bill
9/28. The House approved HR 4077, the "Piracy Deterrence and Education Act of 2004", by a voice vote. The Senate has yet to take any action on this bill.

Senate Commerce Committee Approves Wireless Privacy Bill
9/22. The Senate Commerce Committee amended and approved S 1963, the "Wireless 411 Privacy Act". This bill, as amended, would provide that "A provider of commercial mobile services ... may not include the wireless telephone number information of any subscriber in any wireless directory assistance service database unless" it "obtains express prior authorization" from the subscriber.

House Approves Anti-counterfeiting Amendments of 2003 and Fraudulent Online Identity Sanctions Act
9/21. The House amended and approved HR 3632, the "Anti-counterfeiting Amendments of 2003" by a voice vote. This bill has become the vehicle for numerous provisions, some of which are not related to counterfeiting. The bill, as amended by the full House, also includes the language of HR 3754, the "Fraudulent Online Identity Sanctions Act", as well as two bills to provide for additional meeting places of federal courts. The bill has been renamed the "Intellectual Property Protection and Courts Improvements Act of 2004".

DOJ Charges Infineon With Felony Price Fixing; Infineon Pleads Guilty
9/15. The U.S. Department of Justice (DOJ) filed a criminal information in the U.S. District Court (NDCal) against Infineon Technologies AG, charging price fixing in violation of 15 U.S.C. § 1. Simultaneously, Infineon agreed to plead guilty and to pay a $160 Million fine. See also, DOJ release and Infineon release.

Representatives Introduce Bill to Increase Authority of DHS's Top Cyber Security Officer
9/13. Rep. Mac Thornberry (R-TX) and Rep. Zoe Lofgren (D-CA) introduced HR 5068, the "Department of Homeland Security Cybersecurity Enhancement Act of 2004". It would increase the rank and responsibilities of the top cybersecurity officer in the Department of Homeland Security (DHS). It would also define "cybersecurity" to include protection of "wire communication".

Rep. Pickering Suggests Relationship Between the DOJ's Brand X Cert Petition and the FCC's CALEA NPRM
9/8. Rep. Chip Pickering (R-MS), the Vice-Chairman of the House Commerce Committee, discussed the relationship between the Department of Justice's (DOJ) decision last month to petition the Supreme Court for writ of certiorari in the Brand X case, and the Federal Communications Commission's (FCC) decision last month to issue its Notice of Proposed Rulemaking and Declaratory Ruling (NPRM & DR) [100 pages in PDF] imposing Communications Assistance for Law Enforcement Act (CALEA) obligations upon broadband internet access services and voice over internet protocol (VOIP). He suggested at a hearing held by the Subcommittee on Telecommunications and the Internet on September 8 that the DOJ leveraged its power in the Supreme Court certiorari process to obtain from the FCC the NPRM pertaining to CALEA. In this arrangement, the DOJ got the CALEA interpretation and rule making proceeding that it wanted, while the FCC majority got the petition for writ of certiorari in the Brand X case that it wanted.

House Judiciary Committee Approves Intellectual Property Bills
9/8. The House Judiciary Committee amended and approved HR 4077, the "Piracy Deterrence and Education Act of 2004" by voice votes. The Committee approved an amendment in the nature of a substitute offered by Rep. Lamar Smith (R-TX) that added the language of HR 4586, the "Family Movie Act of 2004", which is also known as the ClearPlay bill. HR 4077 was already an amalgamation of many amendments to copyright law.

Copyright Office Releases Discussion Draft of Inducement Bill
9/3. The Copyright Office (CO) released a discussion draft version of S 2560, the "Inducing Infringement of Copyrights Act of 2004", on September 2, 2004. This version was drafted for the purposes of facilitating discussion and comments by interested entities. Sen. Orrin Hatch (R-UT), Sen. Patrick Leahy (D-VT), and others introduced the original version of S 2560 in the Senate on June 22, 2004.

Office of the Solicitor General Backs FCC in Brand X Case
9/1. The Department of Justice's (DOJ) Office of the Solicitor General (OSG), the DOJ's Antitrust Division, and the Federal Communications Commission (FCC) filed a Petition for Writ of Certiorari [37 pages in PDF] with the U.S. Supreme Court in FCC v. Brand X.

Federal Circuit Rejects Anti-Circumvention Claim in Garage Door Opener Case
8/31. The U.S. Court of Appeals (FedCir) issued its opinion [46 pages in MS Word] in Chamberlain v. Skylink, a case involving the anti-circumvention provisions of the Digital Millennium Copyright Act (DMCA), and interoperability of after market products. In this case, the product is portable radio frequency transmitting devices that activate garage door openers (GDO). Chamberlain asserted that Skylink, by selling GDOs that interoperate with its equipment, is trafficking in devices that circumvent a technological measure that effectively controls access to a copyrighted work. The District Court rejected Chamberlain's claim. The Court of Appeals affirmed. Following a lengthy and intricate examination of the § 1201 of the DMCA, the Court of Appeals concluded that Chamberlain's DMCA claims fails because Chamberlain failed to prove that it had not authorized its customers to use devices such as Skylinks, and because Chamberlain failed to prove a nexus between the "access" and some protection of copyright.

9th Circuit Reverses in Yahoo v. LICRA
8/23. The U.S. Court of Appeals (9thCir) issued its split opinion [34 pages in PDF] in Yahoo v. LICRA, holding that the U.S. District Court lacks personal jurisdiction over the French defendants. Previously, the French defendants, LICRA and UEJF, sued Yahoo in a French court, and obtained a judgment ordering Yahoo to stop publishing certain material in its web site located in the US. In the present action, Yahoo sued the French defendants in US District Court seeking a declaratory judgment that the French judgment is unenforceable in the US because it violates the 1st Amendment. The District Court held that it does have personal jurisdiction over the French defendants, and that the French judgment violates the free speech rights of Yahoo. In the present opinion, the Appeals Court reversed the District Court. It held that the District Court lacks personal jurisdiction because the French defendants have not purposely availed themselves of the benefits of the forum.

9th Circuit Holds No Vicarious Infringement in Grokster Case
8/19. The U.S. Court of Appeals (9thCir) issued its opinion [26 pages in PDF] in MGM v. Grokster, affirming the District Court holding that Grokster's and Streamcast's peer to peer (P2P) file copying networks do not contributorily or vicariously infringe the copyrights of the holders of music and movie copyrights.

Summary of the FCC's CALEA NPRM
8/9. The Federal Communications Commission (FCC) released its Notice of Proposed Rulemaking and Declaratory Ruling (NPRM & DR) [100 pages in PDF] regarding imposing CALEA obligations upon broadband internet access services and voice over internet protocol (VOIP) services.

FCC Adopts NPRM and Declaratory Ruling Regarding CALEA Obligations
8/4. The Federal Communications Commission (FCC) adopted, but did not release, a Notice of Proposed Rulemaking and Declaratory Ruling (NPRM & DR) regarding imposing CALEA obligations upon broadband internet access services, including voice over internet protocol (VOIP), and other information services. The FCC gave the Department of Justice (DOJ) much of what it had requested. The FCC tentatively concluded that broadband internet access services are subject to CALEA requirements, and that managed or mediated VOIP services are also subject to CALEA requirements.

3rd Circuit Rules in First Amendment Case
7/29. The U.S. Court of Appeals (3rdCir) issued its opinion [17 pages in PDF] in The Pitt News v. Pappert, a First Amendment challenge brought by a newspaper to a state statute that restrained certain speech -- paid advertising of alcoholic beverages. The Appeals Court held that statute is unconstitutional, but on narrow grounds specific to this restraint.

Senate Commerce Committee Passes VOIP Regulation Bill
7/22. The Senate Commerce Committee (SCC) amended and approved S 2281, the "VOIP Regulatory Freedom Act of 2004". This bill began as an attempt to restrict regulation of voice over internet protocol (VOIP) applications. It would have removed states from the regulatory process, and limited the Federal Communications Commission's (FCC) authority to impose regulations. The bill as amended by the SCC now includes numerous opportunities for states to tax and regulate VOIP applications. The bill's title now misrepresents its content. See, S 2281 as amended on July 22, 2004.

Moveon.org and Common Cause Request FTC to Censor TV Network
7/19. Moveon.org, Inc. and Common Cause submitted a document [10 pages in PDF] to the Federal Trade Commission (FTC) that requests that the FTC "institute a complaint against Fox News under section 5 of the Act, for deceptive practices in the advertising and marketing of the programming of Fox News Channel".

DC Circuit Grants Petition for Review in Verizon v. FCC
7/16. The U.S. Court of Appeals (DCCir) issued its opinion [11 pages in PDF] in Verizon v. FCC, granting Verizon's petition for review of the FCC's order denying its request to forebear from requiring it to unbundle and lease certain elements of its network.

House Commerce Subcommittee Holds Hearing on RFID Technology
7/14. The House Commerce Committee's Subcommittee on Commerce, Trade and Consumer Protection held a hearing titled "Radio Frequency Identification (RFID) Technology: What the Future Holds for Commerce, Security, and the Consumer".

House Commerce Subcommittee Holds Hearing on Stock Options Bill
7/8. The House Commerce Committee's Subcommittee on Commerce, Trade and Consumer Protection held a hearing titled "FASB Proposals on Stock Option Expensing". Members of the Subcommittee disagreed about the merits of the bill, but were in agreement that the House Commerce Committee should aggressively assert jurisdiction on this issue.

FTC Rules Noerr-Pennington Doctrine Does Not Block Antitrust Action for False Representations Regarding Patents During Standards Setting Process
7/7. The Federal Trade Commission (FTC) issued an order [2 pages in PDF] titled "Order Reversing and Vacating the Initial Decision and Order and Remanding for Further Proceeding" in the FTC's proceeding titled "In the Matter of Union Oil Company of California". The full Commission reversed an administrative law judge's decision that the Noerr-Pennington doctrine prevents the FTC from pursing an antitrust enforcement action against Union Oil Company of California (Unocal) in connection with its making false representations to a government standards setting body regarding its patent rights. This is an oil industry action. However, this will also affect the application of antitrust laws to technology companies that engage in misrepresentation regarding their patents and patent applications in standards setting processes. The FTC also issued an opinion [56 pages in PDF] explaining its order. See also, FTC release.

IRS Publishes Advance NPRM Regarding Expanding the Excise Tax on Telephones to Include New Technologies
7/2. The Internal Revenue Service (IRS) published a notice in the Federal Register which it identifies as an "advance notice of proposed rulemaking". This notice states that the IRS seeks comments on expanding the current three percent excise tax on telephone service to new "communications services" to "reflect changes in technology". The vaguely worded and short notice does not put readers on notice of whether or not the IRS plans to promulgate a rule that expands the tax to include any or all voice over internet protocol (VOIP) services, applications, or technologies, or any other IP based communications.

1st Circuit Holds Wiretap Act Does Not Apply to E-Mail in Storage
6/29. The U.S. Court of Appeals (1stCir) issued its split opinion in USA v. Bradford Councilman, a criminal case involving the Electronic Communications Privacy Act (ECPA) and unauthorized accessing of the content of stored e-mail messages. The Court held that there was no violation of the Wiretap Act, as amended by the ECPA, when stored e-mail was accessed, because, since it was in storage, there was no interception within the meaning of the statute.

Judiciary Committee Members Introduce Spyware Bill
6/23. Rep. Bob Goodlatte (R-VA), Rep. Zoe Lofgren (D-CA), and Rep. Lamar Smith (R-TX) introduced HR 4661 the "Internet Spyware (I-SPY) Prevention Act of 2004". It would add a new Section 1030A to the Criminal Code titled "Illicit indirect use of protected computers" to create two narrow criminal prohibitions related to some of the more egregious forms of spyware.

Senators Introduce Bill to Amend Copyright Act to Ban Inducement of Infringement
6/22. Sen. Orrin Hatch (R-UT) and others introduced S 2560, the "Inducing Infringement of Copyrights Act of 2004". The bill is very short and simple, but, if enacted, would bring about a major change in copyright law. It would create a new cause of action for "intentional inducement of infringement". It would not affect the existing court made law of contributory and vicarious infringement. The bill does not enumerate any specific technologies. It is technology neutral. However, the wording of the bill suggests, and Sen. Hatch and Sen. Frist stated in the Senate, that the present intended target of the bill is the distributors of the P2P systems that are used to infringe copyrighted music.

House Subcommittee Approves Spyware Bill
6/17. The House Commerce Committee's Subcommittee on Commerce, Trade, and Consumer Protection amended and approved HR 2929, the "Securely Protect Yourself Against Cyber Trespass Act" or "SPY ACT". This is Rep. Mary Bono's (R-CA) anti spyware bill.

Ways and Means Committee Approves Bill to Limit Deductions for IP Contributions
6/14. The House Ways and Means Committee amended and approved HR 4520, the "American Jobs Creation Act of 2004", a bill that would, among other things, limit the deduction available under Section 170 of the Internal Revenue Code for contributions of intellectual property.

Solicitor General Will Not Seek Supreme Court Review in USTA II
6/9. The Federal Communications Commission (FCC) stated in a release [PDF] that "The Office of the Solicitor General has informed the Commission that it has decided not to appeal the D.C. Circuit decision vacating the Commission's local telephone unbundling rules." Also, Commissioner Kevin Martin released a brief statement: "The Solicitor General has decided not to appeal the D.C. Circuit decision eliminating the Commission's rules requiring incumbent telephone carriers to open their voice networks to competition. Because the Solicitor General decided not to support the FCC's appeal, I no longer support appealing the D.C. Circuit's decision." Finally, the acting administrator of the National Telecommunications and Information Administration (NTIA), Michael Gallagher, issued a statement in which he announced that the SG's decision is "Consistent with the Administration's views".

Ashcroft Testifies Regarding PATRIOT Act
6/8. The Senate Judiciary Committee held a hearing titled "DOJ Oversight: Terrorism and Other Topics". Attorney General John Ashcroft was the sole witness. The one technology related subject discussed in detail at this hearing by Senators and Ashcroft was the surveillance related provisions of the USA PATRIOT Act, and proposals to expand the PATRIOT Act. Ashcroft said that the sunsetting provisions of the PATRIOT Act should be extended.

Senate Commerce Committee Holds Hearing on FTC Nominees
6/2. The Senate Commerce Committee held a hearing on five pending nominations, including the nominations of Deborah Majoras and Jonathan Liebowitz to be Commissioners of the Federal Trade Commission (FTC). President Bush has nominated Majoras, a Republican, to replace Tim Muris as Chairman, and Liebowitz, a Democrat, to replace Mozelle Thompson. The hearing did little to establish these nominees' positions on technology related maters within the jurisdiction of the FTC, or their qualifications to be Commissioners. Most of the two hour long contentious hearing was devoted to gas prices on the West Coast.

Ken Starr Says the Big Issue in the FCC's TRO and USTA II is Separation of Powers
6/2. Kenneth Starr, an attorney at the law firm of Kirkland & Ellis, gave a speech at a luncheon hosted by the Progress and Freedom Foundation (PFF) titled "The Supreme Court and the Future of the Telecom Act of 1996". Starr argued that the fundamental legal issues raised by the Federal Communications Commission's (FCC) triennial review order's (TRO) unbundling provisions are not about telecommunications. The fundamental issues are executive power, and the separation of powers.

GAO Reports on Data Mining at Federal Agencies
5/27. The General Accounting Office (GAO) released a report [71 pages in PDF] titled "Data Mining: Federal Efforts Cover a Wide Range of Uses". The report finds that "Driven by advances in computing and data storage capabilities and by growth in the volumes and availability of information collected by the public and private sectors, data mining enables government agencies to analyze massive volumes of data. Our survey shows that data mining is increasingly being used by government for a variety of purposes, ranging from improving service or performance to analyzing and detecting terrorist patterns and activities."

Powell and Adelstein Address FCC Spectrum Related Proceedings
5/25. Federal Communications Commission (FCC) Commissioner Jonathan Adelstein gave a speech [3 pages in PDF] at an event titled "Wireless Internet Service Provider Forum" held at the South Dakota School of Mines and Technology in Rapid City, South Dakota. He gave a quick overview of the main FCC proceedings pertaining to use of spectrum for wireless internet service. FCC Chairman Michael Powell gave a speech [4 pages in PDF] at the FCC's Wireless Broadband Forum on May 19 at which he reviewed various FCC spectrum related proceedings.

FBI Director Mueller Appears Before Senate Judiciary Committee
5/20. The Senate Judiciary Committee held a hearing titled "FBI Oversight: Terrorism and Other Topics". The only witness was Robert Mueller, Director of the Federal Bureau of Investigation. Much of the hearing focused on non-technology related topics. However, the hearing also addressed extension of various provisions of the USA PATRIOT Act, and the use of information technology at the FBI.

Rep. Cox Suggests Shutting Down the FCC
5/19. Rep. Chris Cox (R-CA) suggested abolishing the Federal Communications Commission (FCC) because it was created to regulate communications markets characterized by scarcity and lack of competition -- conditions which no longer exist. Rep. Cox said that rather than rewriting the Communications Act, the Congress should recognize that there is now competition in communications, declare victory, and shut down the FCC.

FCC Adopts NPRM Regarding Unlicensed Use of Broadcast TV Spectrum
5/13. The Federal Communications Commission (FCC) adopted, but did not release, a notice of proposed rulemaking (NPRM) regarding use by unlicensed devices of broadcast television spectrum where the spectrum is not in use by broadcasters. The goal is to make more spectrum available (and spectrum that can go through walls) for networking electronic devices within premises, and for providing wireless broadband internet access.

Capital Markets Subcommittee Approves Stock Options Bill
5/12. The House Financial Services Committee's Subcommittee on Capital Markets amended and approved HR 3574, the "Stock Options Accounting Reform Act", a bill that would require the expensing of stock options, but only for the top five employees of a company. On March 31, 2004, the Financial Accounting Standards Board (FASB) released a document titled "Exposure Draft, Share-Based Payment, an Amendment of FASB Statements No. 123 and 95" that proposes that companies must expense stock option plans for all employees.

House Subcommittee Holds Hearing on P2P Smut
5/6. The House Commerce Committee's Subcommittee on Commerce Trade and Consumer Protection held a hearing titled "Online Pornography: Closing the Doors on Pervasive Smut". Several members of Congress and child advocates condemned P2P child porn, and called for passage of HR 2885, the "Protecting Children from Peer to Peer Pornography Act". Representatives of the P2P industry argued that the attack on P2P porn is being promoted by the entertainment industries to destroy the nascent P2P industry in order to protect copyrighted works.

Senate Judiciary Committee Approves Four Intellectual Property Bills
4/29. The Senate Judiciary Committee (SJC) unanimously approved, without amendment, four major bills affecting intellectual property: S 2192 (CREATE Act), HR 1561 (USPTO fee bill), S 2237 (PIRATE Act), and S 1932 (ART Act). The Committee held over S 1933 (EnFORCE Act). Sen. Patrick Leahy (D-VT), the ranking Democrat on the SJC, stated that the SJC may make some changes to HR 1561 before consideration by the full Senate. Also, Sen. Orrin Hatch (R-UT) stated that some or all of these bills may be combined into a single bill.

Lawsuit Challenges Constitutionality of Law Allowing FBI to Obtain Records from Electronic Communication Service Providers
4/28. The American Civil Liberties Union (ACLU) published in its web site a complaint [14 page PDF scan] that it filed in U.S. District Court (SDNY) against Attorney General John Ashcroft, FBI Director Robert Mueller, and FBI Senior Counsel Marion Bowman. The ACLU challenges the constitutionality of 18 U.S.C. § 2709, a section that was amended by the USA PATRIOT Act in late 2001. § 2709, which was originally enacted as part of the Electronic Communications Privacy Act of 1986 (ECPA), concerns the national security authority of the President (and his agents) to obtain records from a "wire or electronic communication service provider" in "an authorized investigation to protect against international terrorism or clandestine intelligence activities".

Bush Addresses Broadband Access Taxes, Research and Development, and Conversion to Electronic Medical Records
4/26. President Bush gave a speech in Minneapolis, Minnesota. He advocated making the research and development tax credit permanent. He also advocated federal spending on research and education. He advocated banning taxes on broadband access. He also said that the federal government must increase access to federal land for fiberoptic cables and transmission towers. Bush also advocated setting standards for broadband over powerline, and providing more spectrum for wireless broadband. He also expressed his support for the FCC, and for FCC Chairman Michael Powell in particular. Bush also proposed converting the medical records system from paper to electronic files, and stated that the federal government is setting standards for electronic records.

FCC Rules on AT&T's VOIP Petition
4/21. The Federal Communications Commission (FCC) announced and released its Order [27 pages in PDF] on AT&T's petition for a declaratory ruling that access charges do not apply to its service in which calls originate and terminate on circuit switched PSTN facilities, but are routed on internet backbone. The FCC rejected AT&T's request, and ruled that the service at issue is "telecommunications service upon which interstate access charges may be assessed".

Bush Proposes to Extend and Expand PATRIOT Act
4/19. President Bush gave a speech in Hershey, Pennsylvania about terrorism and the USA PATRIOT Act. He said that all of the provisions of the Act that are scheduled to expire should be permanently extended, that several new provisions should be added, and that the various legislative proposals to roll back certain provisions of the Act should all be rejected.

FCC Announces FNPRM and NOI Regarding Digital Audio Broadcasting
4/15. The Federal Communications Commission (FCC), announced, but did not release, a Further Notice of Proposed Rule Making (FNPRM) and Notice of Inquiry (NOI) regarding digital audio broadcasting (DAB). The FCC issued a short release [PDF] describing the item.

Summary of DOJ Petition for Rulemaking to Expand the CALEA to Cover Information Services
4/9. On March 10, 2004, the Department of Justice (DOJ) submitted a petition for rulemaking [83 pages in PDF] to the Federal Communications Commission (FCC) regarding requiring broadband service providers, voice over internet protocol (VOIP) application providers, and others, to design and modify their networks, hardware, software, and equipment in a manner that enables the DOJ to intercept VOIP and other internet based communications.

Sen. Clinton Introduces Bill That Mixes Trade Protectionism and Data Privacy
4/8. Sen. Hillary Clinton (D-NY) and Sen. Mark Dayton (D-MN) introduced S 2312, the "SAFE-ID Act". The bill bears some attributes of a data privacy protection proposal, and some attributes of a proposal to impose protectionist barriers to trade in services.

Sununu and Pickering Introduce VOIP Regulatory Freedom Bills
4/5. Sen. John Sununu (R-NH) introduced S 2281, the "VOIP Regulatory Freedom Act of 2004" in the Senate on April 5. Rep. Chip Pickering (R-MS) introduced HR 4129, also titled the "VOIP Regulatory Freedom Act of 2004", in the House on April 2. Both bills provide that regulation of voice over internet protocol (VOIP) is an exclusively federal prerogative. Both bills provide that the states cannot tax the offering or provision of a VOIP application. And, both bills provide that the Federal Communications Commission (FCC) has regulatory authority only in enumerated areas: interprovider compensation, universal service contributions, and law enforcement surveillance. However, the bills differ regarding the nature and extent of the FCC's regulatory authority in these categories.

FCC to Seek Extension of Stay of DC Circuit Vacatur of TRO
3/31. All five of the Commissioners of the Federal Communications Commission (FCC) wrote a letter to telecommunications carriers and trade associations regarding the opinion [62 pages in PDF] of the U.S. Court of Appeals (DCCir) in USTA v. FCC, vacating parts of the FCC's latest rules (contained in the triennial review order) regarding the unbundling requirements of incumbent local exchange carriers (ILECs). The letter states that the FCC will seek an extension of the Court of Appeals' stay of its vacatur. The letter also encourages the incumbent and competitive carriers, and their trade groups, to use this time to negotiate. See, letter [PDF] sent to CompTel, and statement [PDF] released by the FCC.

FASB Proposes Expensing of Stock Options
3/31. The Financial Accounting Standards Board (FASB) released a document titled "Exposure Draft, Share-Based Payment, an Amendment of FASB Statements No. 123 and 95." It proposes that companies must expense employee stock option plans. The FASB's comment period for the exposure draft ends June 30, 2004.

Supreme Court Reverses in Nixon v. Missouri
3/24. The U.S. Supreme Court issued its opinion [PDF] in Nixon v. Missouri Municipal League, a case regarding 47 U.S.C. § 253(a) and state statutes that prohibit political subdivisions from offering telecommunications services. It reversed the U.S. Court of Appeals (8thCir).

4th Circuit Affirms That Section 230 Immunity Extends to Federal Civil Rights Action
3/24. The U.S. Court of Appeals (4thCir) issued its opinion [2 pages in PDF] in Noah v. AOL, affirming the District Court's opinion that Section 230 of the Communications Act immunizes AOL from claims that it violated the Civil Rights Act of 1964 when it provided chat rooms in which subscribers mocked Noah's religious beliefs.

Senate Communications Subcommittee Holds Hearing on Spyware Bill
3/23. The Senate Commerce Committee's Subcommittee on Communications held a hearing on spyware and S 2145, the "Software Principles Yielding Better Levels of Consumer Knowledge Act", or "SPY BLOCK Act".

US Complains to WTO About PR China's Tax Preference for Domestic Producers of Integrated Circuits
3/18. The U.S. filed a complaint with the World Trade Organization (WTO) against the People's Republic of China stating that the PRC's preferential tax treatment of integrated circuits produced in the PRC is discriminatory, and a violation of the PRC's WTO obligations.

FTC Announces CAN-SPAM Act Rulemaking
3/11. The Federal Trade Commission (FTC) published a notice in the Federal Register requesting comments, and setting comment deadlines, regarding various regulations and reports required by the CAN-SPAM Act.

House Passes CREATE Act
3/10. The House passed HR 2391, the "Cooperative Research and Technology Enhancement (CREATE) Act", by a voice vote. The bill would amend Section 103(c) of the Patent Act, which is codified at 35 U.S.C. § 103, to address the August 8, 1997 opinion of the U.S. Court of Appeals for the Federal Circuit in OddzOn Products, Inc. v. Just Toys, Inc., which ruled that derived prior art may serve as evidence of obviousness.

House Passes USPTO Fee Bill
3/3. The House amended and approved HR 1561, the "United States Patent and Trademark Fee Modernization Act of 2003", by a vote of 379-28. See, Roll Call No. 38. The bill contains increases in user fees that implement the U.S. Patent and Trademark Office's (USPTO) 21st Century Strategic Plan. It also provides for U.S. outsourcing of patent searches, and an end to the diversion of user fees to subsidize other government programs. The Senate has yet to pass this, or a similar, bill.

Appeals Court Overturns Key Provisions of FCC Triennial Review Order
3/2. The U.S. Court of Appeals (DCCir) issued its opinion [62 pages in PDF] in USTA v. FCC, overturning key parts of the Federal Communications Commission's (FCC) triennial review order (TRO). The opinion leaves largely untouched those portions of the TRO in which the FCC refrained from unbundling next generation broadband facilities. The opinion vacates those portions of the TRO in which the FCC delegated decision making authority to the states to make impairment findings. Commissioners Kevin Martin, Michael Copps, and Jonathan Adelstein issued a statement [PDF] in which they wrote that "We have instructed our General Counsel to seek a stay and to appeal the D.C. Circuit decision to the Supreme Court".

House Commerce Subcommittee Approves Alternative Database Bill
2/25. The House Commerce Committee's Subcommittee on Commerce, Trade, and Consumer Protection approved HR __, the "Consumer Access to Information Act of 2004", a bill that pertains to databases. This is part of a legislative strategy to derail the Judiciary Committee bill, HR 3261. A very similar strategy was employed during the 106th Congress to derail another database bill that had been approved by the Judiciary Committee.

10th Circuit Upholds Constitutionality of Do Not Call Registry
2/17. The U.S. Court of Appeals (10thCir) issued its opinion [51 pages in PDF] in FTC v. Mainstream Marketing Services (and consolidated cases), the telemarketers' constitutional challenge to the Federal Trade Commission's (FTC) do not call registry. The District Court held that the do not call registry violates the First Amendment free speech rights of telemarketers. The Appeals Court reversed.

Sen. Alexander Introduces Bill Regarding Internet Tax Moratorium
2/12. Sen. Lamar Alexander (R-TN) and others introduced S 2084, the "Internet Tax Ban Extension and Improvement Act". The title of the bill is not descriptive of its content. The bill would nominally extend the Internet Tax Freedom Act through November 1, 2005. However, it would also allow a range of new taxes that could be imposed by state and local governments.

FCC Rules on Pulver's Free World Dialup VOIP Service
2/12. The Federal Communications Commission (FCC) adopted, but did not release, a Declaratory Ruling (DR) on Pulver.com's petition for declaratory ruling regarding the classification of its Free World Dialup (FWD) service. Terri Natoli, of the FCC's Competition Policy Division (CPD), presented this item at the FCC's February 12 meeting. She stated that the DR finds that FWD is "not telecommunications as defined by the Act", that FWD is "not telecommunications service as defined by the Act", and that FWD is "an information service as defined by the Act".

GAO Report Finds CAPPS II Fails to Meet Congressional Criteria
2/12. The General Accounting Office (GAO) released a report [53 pages in PDF] titled "Aviation Security: Computer-Assisted Passenger Prescreening System Faces Significant Implementation Challenges". The appropriations bill for the Department of Homeland Security (DHS) for FY 2004 established criteria for the CAPPS II program, and required that the GAO report on the program's compliance with these criteria. The report finds that the most of the criteria have not been met.

Representatives Introduce Bill to Deter Domain Name Fraud
2/3. Rep. Lamar Smith (R-TX) and Rep. Howard Berman (D-CA) introduced HR 3754, the "Fraudulent Online Identity Sanctions Act", a bill to provide additional civil and criminal remedies in actions that also involve domain name fraud.

Bush Budget Proposes No USPTO Fee Diversion in FY 05
2/2. The Bush administration's summary of the proposed budget for FY 2005 for the Department of Commerce (DOC) provides for no user fee diversion in FY 2005.

House Judiciary Committee Approves Internet Tobacco Sales Enforcement Act
1/28. The House Judiciary Committee amended and approved HR 2824, the "Internet Tobacco Sales Enforcement Act", by unanimous voice votes. Rep. Mark Green (R-WI), Rep. Marty Meehan (D-MA) introduced the bill on July 23, 2003. Rep. Meehan stated at the markup that the bill serves two purposes. First, it addresses "the problem of illegal sales of tobacco to children over the internet". Second, it addresses "the rampant tax evasion" resulting in lost state revenues due to internet sales.

Summary of Technology Related Provisions of the Omnibus Appropriations Bill
1/23. HR 2673, the omnibus appropriations bill, signed by President Bush on January 23, 2004, contains appropriations for many technology related departments, agencies and other units. It also contains several technology related substantive law provisions.

House Judiciary Committee Approves Database Protection Bill
1/21. The House Judiciary Committee amended and approved HR 3261, the "Database and Collections of Information Misappropriation Act" by a roll call vote of 16-7. This bill codifies a cause of action for misappropriation of certain databases.

House Judiciary Committee Approves CREATE Act to Promote Collaborative Research
1/21. The House Judiciary Committee amended and approved HR 2391, the "Cooperative Research and Technology Enhancement (CREATE) Act of 2003", which amends Section 103(c) of the Patent Act.

House Democrats Criticize Bush Administration on Cyber Security and Use of IT
1/16. The Democrats on the House Homeland Security Committee released a report [18 pages in PDF] titled "America At Risk: The State of Homeland Security: Initial Findings". While the report criticizes the Bush administration across all areas of homeland security, it levels numerous accusations related to information technology vulnerabilities and problems.

Supreme Court Holds That There is No Sherman Act Claim in Verizon v. Trinko
1/13. The Supreme Court issued its opinion [22 pages in PDF] in Verizon v. Trinko, reversing the U.S. Court of Appeals (2ndCir). The Supreme Court held that a claim alleging a breach of an ILEC's duty under the 1996 Telecom Act to share its network with competitors does not state a violation of Section 2 of the Sherman Act. This is a significant victory for the ILECs.

Cato Study Opposes FCC Imposition of Network Neutrality
1/12. The Cato Institute released a study [28 pages in PDF] titled "``Net Neutrality´´ Digital Discrimination or Regulatory Gamesmanship in Cyberspace?" This report is a rebuttal of the network neutrality arguments that have been submitted to the Federal Communications Commission (FCC) by an ad hoc group named the "Coalition of Broadband Users and Innovators" and by academics such as Lawrence Lessig and Timothy Wu. The CBUI wants the FCC to adopt a rule that prohibits broadband network operators (and particularly cable broadband and DSL service providers) from discriminating. It wants the FCC to mandate that "A broadband network operator shall not, on a discriminatory or unreasonable basis, interfere with or impair subscribers' ability to use their broadband service to access lawful Internet content or services, use applications or services in connection with their broadband service, or attach nonharmful devices to the network."