WATPA: NET LAW: Open Questions (fwd)

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From: William Langham (blangham@westnet.com)
Date: Wed Jun 28 2000 - 09:32:24 EDT

>From The Standard's Net Law newsletter:

---------- Forwarded message ----------
Date: Wed, 28 Jun 2000 09:04:12 -0400

"TheStandard.com" <NetLaw@bdcimail.com> on 06/27/2000 10:12:59 PM

Please respond to <StandardReplies@bellevue.com>

                       THE INDUSTRY STANDARD'S
                            N E T L A W
        A Weekly Report on the Law Shaping the Wild, Wild Web
                                       | http://www.thestandard.com |

Tuesday, June 27, 2000

* Opening Lines - And a Can of Worms

* A lawyer and a probation officer clash over Kevin Mitnick's job offer

* This week in the news

* Should the FCC use rules or restraint to promote open access?

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Opening Lines - And a Can of Worms

By John Roemer

Courts are supposed to straighten out the kinks in legal disputes. But
the federal appellate decision on open access to broadband cable in
Portland, Ore., last week seems to have tied the issue in further
logical knots.

In case you missed it, the court ruled that the city of Portland can't
force AT&T to rent its cable lines to smaller ISPs. Although the
decision appears to define an interactive cable service as a
telecommunications facility, longstanding Federal Communications
Commission rules require that open-access rules apply to telecom
lines. "If cable is telecom, you have to have open access," says law
professor Robert C. Fellmeth of the University of San Diego, a former
Nader's Raider who wrote a pro-open access friend of the court brief
in the case on behalf of the Center for Public Interest Law. "This is
a serious discrepancy."

AT&T's chief of litigation made an attempt to explaining the
cable-as-telecom aspect of the case. "We're talking about a fairly
keen distinction between a telecom service and a telecom facility,"
Mark Rosenblum said at a news conference.

To further confuse the matter, the FCC itself seems to have taken two
positions on the open-access question. Regarding the Portland case,
FCC Chairman William E. Kennard says he puts his faith in the
marketplace and has adopted an attitude of "vigilant restraint"
instead of imposing any new rules.

But in its hard look at the AOL-Time Warner merger, the FCC appears to
have a different agenda. Last week, even as the Portland decision was
being digested, Kennard's regulators asked for assurances and details
about AOL's promise that its new partner's cable lines will open to
rival ISPs.

FCC sources said that since AOL is voluntarily offering to open its
pipes, the company is in accordance with "vigilant restraint."
Fellmeth reads it differently: He thinks that the FCC is evolving.
"There's a welcome disconnect between their actions in Portland and
their effort to nail down open access with AOL Time Warner," he said.
"They are coming to realize that the implication of their Portland
policy is to hand AT&T a dangerous chokehold on the flow of

AT&T Wins Broadband Case in Portland

The AT&T v. Portland decision:

Kennard Statement On Portland Decision

AT&T Statement

FCC Broadens Its Investigation of AOL Time Warner Merger
(Paid subscription required.)

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"Surely, Mr. Mitnick can be prohibited from teaching others how to
hack, but that condition should not be so broadly read as to prohibit
him from speaking or writing on any topic related to computers,''

- First Amendment lawyer Floyd Abrams of New York, supporting
notorious hacker Kevin Mitnick's desire to write for Steven Brill's
new Web site, Contentville.

"In regards to the numerous requests you have received concerning
writing and critiquing articles and speaking at conferences, we find
it necessary to deny your participation and recommend that you pursue
employment in a non-elated field.''

- Federal probation officer Larry Hawley to Mitnick, throwing cold
water on the idea.



MASTER OF WHOSE DOMAIN? Competitors howled after Network Solutions
announced it will auction off domain names whose owners haven't paid
their bills rather than put them back on the open market. The CEO of
domain-auction service Afternic.com, Chris Maroney, called the action
a form of hoarding and claimed it is forbidden by the Internet
Corporation for Assigned Names and Numbers, which refused to comment.
Meanwhile, Maroney was busy suing ICANN over another issue: The Net
administrative body's refusal to allow Afternic.com to enter the
lucrative domain name market.
(Registration required.)

COURT COPES WITH COPA: The Child Online Protection Act can't withstand
First Amendment scrutiny, an appeals court ruled last week. The law,
passed in 1998 and immediately attacked by the American Civil
Liberties Union, has been in limbo thanks to a lower court's
preliminary injunction, which the appellate justices upheld. COPA
required Web publishers of material considered harmful to minors to
ensure that kids don't see it, but the court held that the statute was
overbroad and required, unfairly, even non-offensive sites to censor

JUDGING THE JUDGE: Judge Thomas Penfield Jackson froze his remedy
ruling last week - a move that helps Microsoft as well as the judge
himself, because now the U.S. Supreme Court or a lower appeals panel
will rule on the merits of the case before even thinking about a
penalty. "I would derive some comfort if I could call on someone
else's intellect to assist me," the judge said plaintively in a
February interview. Which court gets the hot potato case next will be
decided by late summer.
(Registration required.)

Alas, a production foul-up erased last week's answers. We apologize
for any pain and suffering this may have caused.

This week's question: Should the FCC use rules or restraint to promote
open access?

E-mail your opinions to johnr@thestandard.com, and we'll print a
selection of the responses in next week's newsletter. Keep them short
and include your name and affiliation if any.

U.S.-EU Net Privacy Proposal in Jeopardy

U.S. to Block Sprint-MCI Worldcom Merger

Microsoft Case Put on Fast Track

Florida Judge OKs Class Action Against AOL Over Pop-up Ads

SHould EBay Be Responsible For the Behavior of its Buyers, Sellers?

Record Labels Sue MP3Board for Copyright Infringement

BT could face legal action over hyperlink claim

ISP Win: Judge Drops Students' Nude Net Video Case

Consumer Survey Says 'Yes' to Net Taxes

Judges' Financial Disclosure Forms Posted Online

Patent Claims Pop Up All Over the Internet
(Registration required.)

After Suit Filed, Wells Fargo Pulls Racial Descriptions on Site

Napster Holds Talks with Record Labels to Settle Lawsuits

Written by John Roemer. Send news tips and press releases to

Edited by Steven Zeitchik (szeitchik@thestandard.com).

Copyedited by Elese Veeh (eveeh@thestandard.com).

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