2/12. The House is likely to vote on the conference report to HR 1 [LOC | WW], the huge spending bill, on Friday, February 13, 2009.

Near midnight on Thursday, the House Appropriations Committee (HAC) published the conference report. See, Division A [496 pages in PDF] and Division B [575 pages in PDF]. This document contains handwritten additions, corrections, and deletions.

Rep. Steny Hoyer (D-MD), the House Majority Leader, stated in a release on February 12 that "The House is scheduled to meet at 9:00 a.m. tomorrow and is expected to proceed directly to consideration of the American Recovery and Reinvestment conference report. The conference report text will be filed this evening, giving members enough time to review the conference report before voting on it tomorrow afternoon."

Rep. Hoyer's schedule for Friday, February 13, states that the House will meet at 9:00 AM, and that the House will consider, subject to a rule, the conference report to HR 1. This schedule predicts the last vote to be at 1:00 - 2:00 PM.

The Senate is scheduled to meet at 10:00 AM.

Lack of Transparency. President Obama and House and Senate Democrats are pushing this bill to passage in a hurried and secretive manner.

While votes are scheduled for Friday, February 13, the actual language of the conference report, which is over 1,000 pages, was not released until just before midnight on Thursday.

Various Congressional offices have been releasing brief bullet point memoranda, with talking points, and listing of some items in the conference report. See for example, summary in the web site of Rep. Nancy Pelosi (D-CA), Speaker of the House, and summary [4 pages in PDF] of the House and Senate Appropriations Committees.

Democrats have been promoting a bill that they have not read. Republicans have been criticizing a bill that they have not read. Journalists have been reporting on the contents of a bill that they have not read.

Representatives and Senators will vote on language that they will not have had an opportunity to read.

The Bush administration and Republican Congressional leaders employed similar rushed and secretive processes in past years to obtain passage of some bills.

Republican Comments. Rep. Darrell Issa (R-CA), the ranking Republican on the House Oversight and Government Reform Committee, issued a release that states that HR 1 "Fails to include a prohibition on use of economic stimulus funds for lobbying or political activities". It adds that "ACORN is a likely beneficiary of funds" and "MoveOn.org's civic action committee could receive stimulus funds". Rep. Issa stated in this release that "The economic stimulus should not be a bailout for lobbyists or a vehicle for political payback".

Rep. John Boehner (R-OH), the House Republican Leader, stated in a February 12 release that "the legislation is loaded up with plenty of unfocused and wasteful Washington spending", and "begs the question: How will any of this spending create new jobs?" He added that this bill is a "breathtaking example of generational theft".

2/13. Late on February 12, 2009, the House Appropriations Committee (HAC) published the text of conference report of HR 1 [LOC | WW], the huge spending bill.

It includes the creation of a broadband grants programs, to be run by the Department of Commerce's (DOC) National Telecommunications and Information Administration (NTIA). It appropriates $4.7 Billion for this program. Grant recipients are subject to a network neutrality requirement to be defined by the NTIA. The FCC is tasked with writing a national broadband plan.

It also appropriates an additional $2.5 Billion for the Department of Agriculture's Rural Utilities Service (RUS) for "the cost of broadband loans and loan guarantees ... and grants".

Division A [496 pages in PDF] and Division B [575 pages in PDF] of the conference report contain the actual language of the bill. This version of the bill contains handwritten additions, corrections, and deletions.

Division A includes appropriations. Division B includes substantive provisions related to broadband grants.

Appropriations. The NTIA appropriations language, found in Division A, Title II, provides as follows:

For an amount for "Broadband Technology Opportunities Program", $4,700,000,000: Provided, That of the funds provided under this heading, not less than $4,350,000,000 shall be expended pursuant to division B of this Act, of which: not less than $200,000,000 shall be available for competitive grants for expanding public computer center capacity, including at community colleges and public libraries; not less than $250,000,000 shall be available for competitive grants for innovative programs to encourage sustainable adoption of broadband service; and $10,000,000 shall be transferred to ``Department of Commerce, Office of Inspector General´´ for the purposes of audits and oversight of funds provided under this heading and such funds shall remain available until expended: Provided further, That of the funds provided under this heading, up to $350,000,000 may be expended pursuant to Public Law 110-385 (47 U.S.C. 1301 note) and for the purposes of developing and maintaining a broadband inventory map pursuant to division B of this Act: Provided further, That of the funds provided under this heading, amounts deemed necessary and appropriate by the Secretary of Commerce, in consultation with the Federal Communications Commission (FCC), may be transferred to the FCC for the purposes of developing a national broadband plan or for carrying out any other FCC responsibilities pursuant to division B of this Act, and only if the Committees on Appropriations of the House and the Senate are notified not less than 15 days in advance of the transfer of such funds: Provided further, That not more than 3 percent of funds provided under this heading may be used for administrative costs, and this limitation shall apply to funds which may be transferred to the FCC."

Division A, Title I, includes an appropriation for the RUS: "For an additional amount for the cost of broadband loans and loan guarantees, as authorized by the Rural Electrification Act of 1936 (7 U.S.C. 901 et seq.) and for grants (including for technical assistance), $2,500,000,000: Provided, That the cost of direct and guaranteed loans shall be as defined in section 502 of the Congressional Budget Act of 1974". (Parentheses in original.)

Establishment of Grant Program. Division B, Title VI covers substantive law regarding the NTIA's "Broadband Technology Opportunities Program".

It provides that the head of the NTIA, "in consultation with" the Federal Communications Commission (FCC), "shall establish a national broadband service development and expansion program in conjunction with the technology opportunities program, which shall be referred to as the Broadband Technology Opportunities Program." (Parentheses in original.)

It provides that the purposes of these grants include both to "provide access to broadband service to consumers residing in unserved areas" and to "provide improved access to broadband service to consumers residing in underserved areas".

The purposes also include providing "broadband education, awareness, training, access, equipment, and support to --- (A) schools, libraries, medical and healthcare providers, community colleges and other institutions of higher education, and other community support organizations and entities to facilitate greater use of broadband service by or through these organizations ..."

The purposes also include improving "access to, and use of, broadband service by public safety agencies"

The NTIA shall "ensure that all awards are made before the end of fiscal year 2010".

Network Neutrality. The bill also requires the NTIA to impose a network neutrality requirement on grant recipients.

The bill provides that "Concurrent with the issuance of the Request for Proposal for grant applications pursuant to this section, the Assistant Secretary shall, in coordination with the Commission, publish the non-discrimination and network interconnection obligations that shall be contractual conditions of grants awarded under this section, including, at a minimum, adherence to the principles contained in the Commission's broadband policy statement (FCC 05-15, adopted August 5, 2005)."

The FCC adopted this policy statement [3 pages in PDF] on August 5, 2005. See, story titled "FCC Adopts a Policy Statement Regarding Network Neutrality" in TLJ Daily E-Mail Alert No. 1,190, August 8, 2005. The FCC released the text of the Policy Statement on September 23, 2005. See, story titled "FCC Releases Policy Statement Regarding Internet Regulation" in TLJ Daily E-Mail Alert No. 1,221, September 26, 2005.

National Broadband Plan. The bill also requires the FCC, within one year, to write "a report containing a national broadband plan". The bill further specifies the content of the plan.

"The national broadband plan required by this section shall seek to ensure that all people of the United States have access to broadband capability and shall establish benchmarks for meeting that goal. The plan shall also include---
  (A) an analysis of the most effective and efficient mechanisms for ensuring broadband access by all people of the United States;
  (B) a detailed strategy for achieving affordability of such service and maximum utilization of broadband infrastructure and service by the public;
  (C) an evaluation of the status of deployment of broadband service, including progress of projects supported by the grants made pursuant to this section; and
  (D) a plan for use of broadband infrastructure and services in advancing consumer welfare, civic participation, public safety and homeland security, community development, health care delivery, energy independence and efficiency, education, worker training, private sector investment, entrepreneurial activity, job creation and economic growth, and other national purposes."

Broadband Mapping. The bill provides that the NTIA "shall develop and maintain a comprehensive nationwide inventory map of existing broadband service capability and availability in the United States that depicts the geographic extent to which broadband service capability is deployed and available from a commercial provider or public provider throughout each State."

On February 12, the House Commerce Committee (HCC) released its summary [PDF] of those parts of HR 1 that fall within the jurisdiction of the HCC. It includes brief statements regarding some of the broadband related provisions.

2/13. The House Appropriations Committee (HAC) published the text of the conference report of HR 1 [LOC | WW], the huge spending bill.

Division A [496 pages in PDF] and Division B [575 pages in PDF] of the conference report contain the actual language of the bill. This conference report, in Division A, Title II, includes more funding for activities related to the transition from analog to digital television.

It appropriates for the "Digital-to-Analog Converter Box Program" the amount of "$650,000,000, for additional coupons and related activities under the program implemented under section 3005 of the Digital Television Transition and Public Safety Act of 2005"

It further provides that of these funds, "$90,000,000 may be for education and outreach, including grants to organizations for programs to educate vulnerable populations, including senior citizens, minority communities, people with disabilities, low-income individuals, and people living in rural areas, about the transition and to provide one-on-one assistance to vulnerable populations, including help with converter box installation".

It further provides that "the amounts provided in the previous proviso may be transferred to the Federal Communications Commission (FCC) if deemed necessary and appropriate by the Secretary of Commerce in consultation with the FCC, and only if the Committees on Appropriations of the House and the Senate are notified not less than 5 days in advance of transfer of such funds."

2/12. The House Appropriations Committee (HAC) published the text of conference report on HR 1 [LOC | WW], the huge spending bill. Division A [496 pages in PDF] and Division B [575 pages in PDF] of the conference report contain the actual language of the bill.

Division A, Title II, includes additional appropriations for agencies that engage in, among other things, information technology related research. These agencies include the National Institute of Standards and Technology (NIST) and the National Science Foundation (NSF), .

It provides for the NIST, "For an additional amount for ``Scientific and Technical Research and Services´´, $220,000,000."

It also provides for the NIST, "For an additional amount for ``Construction of Research Facilities´´, $360,000,000, of which $180,000,000 shall be for a competitive construction grant program for research science buildings."

It provides for the NSF, "For an additional amount for ``Research and Related Activities´´, $2,500,000,000: Provided, That $300,000,000 shall be available solely for the Major Research Instrumentation program and $200,000,000 shall be for activities authorized by title II of Public Law 100-570 for academic research facilities modernization."

It also provides the NSF another $100,000,000 for "Education and Human Resources", and another $400,000,000 for "Major Research Equipment and Facilities Construction".

2/12. The House Appropriations Committee (HAC) published the text of the conference report on HR 1 [LOC | WW], the huge spending bill. Division A [496 pages in PDF] and Division B [575 pages in PDF] of the conference report contain the actual language of the bill.

This conference report includes protectionist language reminiscent of the 1929 Smoot Hawley Tariff Act.

Division A, Title XVI, Section 1605, provides that "None of the funds appropriated or otherwise made available by this Act may be used for a project for the construction, alteration, maintenance, or repair of' a public building or public work unless all of the iron, steel, and manufactured goods used in the project are produced in the United States."

It adds that "This section shall be applied in a manner consistent with United States obligations under international agreements."

Section 1611 limits employment by recipients of funding under this bill. Only American may be hired, with exceptions.

It states that "Notwithstanding any other provision of law, it shall be unlawful for any recipient of funding under title I of the Emergency Economic Stabilization Act of 2008 (Public Law 110-343) or section 13 of the Federal Reserve Act (12 U.S.C. 342 et seq.) to hire any nonimmigrant described in section 101(a)(15)(h)(i)(b) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(h)(i)(b)) unless the recipient is in compliance with the requirements for an H-1B dependent employer (as defined in section 212(n)(3) of such Act (8 U.S.C. 1182(n)(3))), except that the second sentence of section 212(n)(1)(E)(ii) of such Act shall not apply."

It further provides that the word "hire" refers to new employees.

2/12. The Federal Communications Commission (FCC) adopted and released an order [3 pages in PDF] that delays the deadline for narrowband relocation in the 700 MHz band. The deadline was February 17, 2009. This order sets no new deadline.

The 700 MHz band (698-806 MHz), which has been television broadcast spectrum, is being converted to other uses. The FCC's plan is to make this spectrum available for public safety and commercial wireless services as a result of the digital television (DTV) transition.

The just enacted S 352 [LOC | WW], the "DTV Delay Act", alters and delays the transition process.

Also, the FCC failed last year in its attempt to auction part of this spectrum, known as the D block. This block is 10 megahertz of paired spectrum (758-763 MHz and 788-793 MHz), that the FCC tried to auction in one nationwide license, subject to a "Public/Private Partnership". The FCC's plan was for a commercial licensee to build a nationwide broadband interoperable network for use by public safety entities. This licensee would then have had preemptible secondary access to the spectrum. The FCC closed this auction on March 18, 2008. No bidder bid the reserve price. This was a part of Auction No. 73.

The FCC's 2007 Second Report and Order, which addressed the band plan and service rules for the 700 MHz band, set a February 17, 2009 narrowband relocation deadline. The FCC adopted this 2ndR&O on July 31, 2007. It is FCC 07-132 in WT Docket Nos. 06-150, 01-309, 03-264, 06-169, and 96-86, CC Docket No. 94-102, and PS Docket No. 06-229. See, story titled "FCC Adopts 700 MHz Band Order" in TLJ Daily E-Mail Alert No. 1,619, July 31, 2007.

The FCC adopted and released a Third Further Notice of Proposed Rulemaking [212 pages in PDF] on September 25, 2008. This 3rdFNPRM proposed, among other things, the deadline extension that the FCC adopted in the just released order. That 3rdFNPRM is FCC 08-230 in WT Docket No. 06-150 and PS Docket No. 06-229. See, story titled "FCC Adopts Further NPRM Regarding Public Safety Broadband Network" in TLJ Daily E-Mail Alert No. 1,832, September 25, 2008.

The just released order offers this explanation of the narrowband relocation: the FCC's 2ndR&O "designated the lower half of the 700 MHz public safety band (763-768/793-798 MHz) for broadband communications, and consolidated narrowband operations in the upper half (769-775/799-805 MHz). Consequently, the Commission required existing narrowband operations in the spectrum blocks corresponding to television channels 63 and 68, and in the upper one megahertz of channels 64 and 69, to be relocated to the new consolidated narrowband segment by the DTV transition deadline of February 17, 2004". (Parentheses in original. Footnotes omitted.)

The FCC order concludes that "the predicate assumptions for establishing February 17, 2009 as the narrowband relocation deadline have not materialized, and final disposition of a revised deadline remains pending in this proceeding. Accordingly, on our own motion, we stay the February 17, 2009 deadline for relocating existing narrowband operations to the consolidated narrowband channels (769-775/799-805 MHz) until a new deadline is established in a subsequent order in this proceeding." (Parentheses in original.)

The just released order is FCC 09-8 in WT Docket No. 06-150 and PS Docket No. 06-229.

2/12. Sen. Judd Gregg (R-NH) withdrew from consideration to be Secretary of Commerce. He remains a U.S. Senator representing the state of New Hampshire.

He stated in a release that "I want to thank the President for nominating me to serve in his Cabinet as Secretary of Commerce. This was a great honor, and I had felt that I could bring some views and ideas that would assist him in governing during this difficult time. I especially admire his willingness to reach across the aisle."

"However, it has become apparent during this process that this will not work for me as I have found that on issues such as the stimulus package and the Census there are irresolvable conflicts for me."

Sen. Gregg added that "I greatly admire President Obama and know our country will benefit from his leadership, but at this time I must withdraw my name from consideration for this position."

President Obama's Press Secretary, Robert Gibbs, was less gracious. He stated in a release that Sen. Gregg "was very clear throughout the interviewing process that despite past disagreements about policies, he would support, embrace, and move forward with the President's agenda. Once it became clear after his nomination that Senator Gregg was not going to be supporting some of President Obama's key economic priorities, it became necessary for Senator Gregg and the Obama administration to part ways. We regret that he has had a change of heart."

Rep. John Boehner (R-OH), the House Republican Leader, stated in a release that "Sen. Gregg raised concerns about the congressional Democrats' trillion-dollar spending bill and about the Administration's plan to place White House political operatives, rather than Census Bureau experts, in charge of the Census."

See also, statement by Rep. Lamar Smith (R-TX), the ranking Republican on the House Judiciary Committee, regarding the Department of Commerce's (DOC) Bureau of the Census.

The organizational structure of the Department of Commerce (DOC) includes many technology related entities, including the U.S. Patent and Trademark Office (USPTO), National Telecommunications and Information Administration (NTIA), and National Institute of Standards and Technology (NIST).

This issue contains the following items:
 • House and Senate to Vote on Conference Report on Spending Bill
 • Summary of Broadband Grants Provisions in Spending Bill
 • Spending Bill Includes More DTV Transition Funding
 • Spending Bill Includes Research Funding
 • Spending Bill Includes Smoot Hawley Provision
 • FCC Delays 700 MHz Band Narrowband Relocation Deadline
 • Sen. Gregg No Longer Obama's Nominee to Head Commerce Department
 • DOJ Obtains Indictment of Former CEO of Cathode Ray Tube Manufacturer
 • FTC Releases Report on Online Behavioral Advertising

The House will meet at 9:00 AM for legislative business. The House is scheduled to vote on the conference report to HR 1, the huge spending bill. See, Rep. Hoyer's schedule for February 13.

The Senate will meet at 10:00 AM.

9:00 AM - 4:30 PM. Day five of a five day meeting of the Federal Aviation Administration's (FAA) RTCA Special Committee 159: Global Positioning System. See, notice in the Federal Register, January 28, 2009, Vol. 74, No. 17, at Page 5024. Location: RTCA, Inc., Suite 805, 1828 L St., NW.

6:00 PM. Deadline for certain broadcast stations to submit certifications to the Federal Communications Commission (FCC) regarding terminating analog service. See, FCC's Public Notice [6 pages in PDF], and story titled "FCC Makes Further DTV Transition Announcements" in TLJ Daily E-Mail Alert No. 1,898, February 12, 2009.

George Washington's birthday observed. See, Office of Personnel Management's (OPM) list of 2009 federal holidays.

The House will not meet the week of February 16-20 for a District Work Period.

10:00 AM. The Federal Trade Commission (FTC) is scheduled to begin its hearing in In the Matter of Whole Foods Markets, Inc. See, scheduling order [14 pages in PDF]. See also, story titled "DC Circuit Reverses in FTC v. Whole Foods" in TLJ Daily E-Mail Alert No. 1,802, July 29, 2008. Location: Room 532, FTC, 600 Pennsylvania Ave., NW.

5:00 PM. Deadline to register for the Federal Communications Bar Association's (FCBA) February 18 event titled "Investing in Foreign Telecoms Markets: Challenges and Opportunities". See, notice and registration page.

POSTPONED. Deadline for full power television stations to cease analog broadcasting.

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in Globalstar v. FCC, App. Ct. No. 08-1046. This is a petition for review of an FCC order regarding Big LEO spectrum. See, FCC brief [67 pages in PDF]. Judges Sentelle, Garland and Edwards will preside. Location: 333 Constitution Ave., NW.

12:30 - 1:30 PM. The Federal Communications Bar Association's (FCBA) State and Local Practice Committee will host a brown bag lunch titled "Collaboration between States, Federal Government and Industry on Uniform Outage Reporting for Carriers". The speaker will be Tom Goode, General Counsel of the Alliance for Telecommunications Industry Solutions (ATIS). See, notice and registration page. Location: Renaissance Hotel, Meeting Room 3, 999 9th St., NW.

1:00 - 3:00 PM. The Federal Communications Commission's (FCC) World Radiocommunications Conference (WRC-11) Advisory Committee's Informal Working Group 2: Terrestrial Services will meet. See, notice and FCC's WRC-11 web site. Location: FCC, South Conference Room, 2nd floor, Room 2-B516, 445 12th St., SW.

3:00 - 5:00 PM. The Federal Communications Commission's (FCC) World Radiocommunications Conference (WRC-11) Advisory Committee's Informal Working Group 3: Space Services will meet. See, notice and FCC's WRC-11 web site. Location: FCC, South Conference Room, 2nd floor, Room 2-B516, 445 12th St., SW.

5:00 PM. Deadline to submit applications to the National Institute of Standards and Technology (NIST) for participation in its 2009 SURF grant programs. These are the NIST's Gaithersburg Summer Undergraduate Research Fellowship Program, and Boulder Summer Undergraduate Research Fellowship Program. The NIST distributes grants for, among other topics, electronics and electrical engineering, and information technology. See, notice in the Federal Register, December 30, 2008, Vol. 73, No. 250, at Pages 79817-79822.

10:00 AM - 12:00 NOON. The Federal Communications Commission's (FCC) World Radiocommunications Conference (WRC-11) Advisory Committee's Informal Working Group 1: Maritime, Aeronautical and Radar Services will meet. See, notice and FCC's WRC-11 web site. Location: 1800 North Kent St., Suite 1060, RTCM, Rosslyn, VA.

12:15 - 1:45 PM. The Federal Communications Bar Association's (FCBA) Young Lawyers Committee will host a brown bag lunch titled "Transitions -- How to Successfully Navigate a Move into a New Position". The speakers will include Marcia Shannon (Shannon & Manch), Dan Binstock (BCG Attorney Search), Peter Shields (Wiley Rein), Laura Rychak (Cox Enterprises), and (?) Anna Gomez. RSVP to Christy Hammond at chammond at wileyrein dot com. For more information or to submit anonymous questions for the speakers, contact Cathy Hilke at chilke at wileyrein dot com or Christina Langlois at clanglois at nualumni dot com. Location: Wiley Rein, 5th floor, 1750 K St., NW.

6:00 - 8:15 PM. The Federal Communications Bar Association (FCBA) will host an event titled "Investing in Foreign Telecoms Markets: Challenges and Opportunities". See, notice and registration page. The price to attend varies. Location: Bingham McCutchen, 11th floor, 2020 K St., NW.

10:30 AM - 12:00 NOON. The Heritage Foundation will host an event titled "Taiwan: Ideal Candidate for Free Trade Agreement". The speakers will be Chris Padilla, Rupert Hammond-Chambers (U.S.-Taiwan Business Council), and Walter Lohman (Heritage). Location: Heritage, 214 Massachusetts Ave., NE.

11:00 - 2:00 PM. George Washington University's (GWU) law school's IP Speaker Series will host a lecture by Greg Vetter. See, notice. Location: Faculty Conference Center (B505), GWU law school.

12:15 PM. The Federal Communications Bar Association's (FCBA) Wireless Telecommunications Practice Committee will host a lunch titled "How can telecommunications technologies, specifically wireless technologies, lead the green revolution?". Location: Sidley Austin, 6th floor, 1501 K St., NW.

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in Ad Hoc Telecommunications Users Committee v. FCC, App. Ct. No. 07-1426. This is a petition for review of an FCC forbearance decision. See, FCC brief [84 pages in PDF]. Judges Sentelle, Kavanaugh and Edwards will preside. Location: 333 Constitution Ave., NW.

12:15 - 1:45 PM. The New America Foundation (NAF) will host discussion of the book [Amazon] titled "Viral Spiral: How the Commons Built a Digital Republic of Their Own". The speakers will be David Bollier (author), Sascha Meinrath (NAF), and Michael Calabrese (NAF). See, notice and registration page. Location: NAF, 7th floor, 1630 Connecticut Ave., NW.

Extended deadline to submit reply comments to the Federal Communications Commission (FCC) regarding the Rural Cellular Association's (RCA) May 20, 2008, petition for rulemaking [25 pages in PDF] regarding "the widespread use and anticompetitive effects of exclusivity arrangements between commercial wireless carriers and handset manufacturers" and "rules that prohibit such arrangements". See, notice in the Federal Register, October 23, 2008, Vol. 73, No. 206, at Pages 63127-63128. This proceeding is RM No. 11497. See, FCC notice of extension [PDF], and notice of extension in the Federal Register, December 12, 2008, Vol. 73, No. 240, at Pages 75629-75630.

Deadline to submit comments to the National Science Foundation's (NSF) National Coordination Office for Networking Information Technology Research and Development (NCO/NITRD) that contain "promising game-changing ideas with the potential to reduce vulnerabilities to cyber exploitations by altering the cybersecurity landscape". See, notice in the Federal Register, December 30, 2008, Vol. 73, No. 250, at Pages 79919-79921.

2/11. A grand jury of the U.S. District Court (NDCal) returned a two count indictment that charges Cheng Yuan Lin, aka C.Y. Lin, with violation of federal antitrust law in connect with his alleged conspiracy to fix prices cathode ray tubes (CRTs) used in computer monitors and televisions.

Lin is a former Chairman and CEO of Chunghwa Picture Tubes Ltd.

The Department of Justice's (DOJ) Antitrust Division issued a release that states that this indictment "is the first charge as a result of the Antitrust Division's ongoing investigation into the cathode ray tubes industry".

Scott Hammond, the acting Assistant Attorney General in charge of the Antitrust Division, stated in this release that "This conspiracy harmed countless Americans who purchased computers and televisions using cathode ray tubes sold at fixed prices ... The Antitrust Division will continue to prosecute individuals, wherever they are located and however high their position on the corporate ladder, who engage in price fixing aimed at U.S. businesses and consumers."

2/12. The Federal Trade Commission (FTC) released a report [PDF] titled "FTC Staff Report: Self Regulatory Principles for Online Behavioral Advertising".

The FTC initiated the process of writing this report at the same time that it declined to block the merger of Google and DoubleClick, on privacy or other grounds. See, stories titled "FTC Will Not Block Google DoubleClick Merger" and "FTC Proposes and Seeks Comments on Voluntary Principles for Online Behavioral Advertising" in TLJ Daily E-Mail Alert No. 1,691, December 19, 2007.

The report offers principles for industry self-regulation of online behavioral advertising.

It defines "online behavioral advertising" as "the tracking of a consumer's online activities over time -- including the searches the consumer has conducted, the web pages visited, and the content viewed -- in order to deliver advertising targeted to the individual consumer’s interests."

The report adds that "This definition is not intended to include ``first party´´ advertising, where no data is shared with third parties, or contextual advertising, where an ad is based on a single visit to a web page or single search query."

The FTC report articulates four principles. Some of these principles involve multiple parts. The FTC's four are (1) disclosure to consumers, and offering consumers choice about information collection, (2) maintaining data security, and limiting data retention, (3) no breaching of prior privacy policies as to data collected under those policies, except with consent, and (4) affirmative express consent to, or prohibition against, using sensitive data

Disclosure and Consumer Choice. The report states that "Every website where data is collected for behavioral advertising should provide a clear, concise, consumer-friendly, and prominent statement that (1) data about consumers' activities online is being collected at the site for use in providing advertising about products and services tailored to individual consumers’ interests, and (2) consumers can choose whether or not to have their information collected for such purpose."

The report adds that "The website should also provide consumers with a clear, easy-to-use, and accessible method for exercising this option."

It also states that "Where the data collection occurs outside the traditional website context, companies should develop alternative methods of disclosure and consumer choice that meet the standards described above (i.e., clear, prominent, easy-to-use, etc.)" (Parentheses in original.)

Data Security and Retention. The report states that "Any company that collects and/or stores consumer data for behavioral advertising should provide reasonable security for that data. Consistent with data security laws and the FTC's data security enforcement actions, such protections should be based on the sensitivity of the data, the nature of a company's business operations, the types of risks a company faces, and the reasonable protections available to a company."

It adds that "Companies should also retain data only as long as is necessary to fulfill a legitimate business or law enforcement need."

Prior Privacy Policies. The report states that "a company must keep any promises that it makes with respect to how it will handle or protect consumer data, even if it decides to change its policies at a later date."

Therefore, "before a company can use previously collected data in a manner materially different from promises the company made when it collected the data, it should obtain affirmative express consent from affected consumers. This principle would apply in a corporate merger situation to the extent that the merger creates material changes in the way the companies collect, use, and share data."

Sensitive Data. The report states that "Companies should collect sensitive data for behavioral advertising only after they obtain affirmative express consent from the consumer to receive such advertising."

The report also notes that "Self-regulation can work only if concerned industry members actively monitor compliance and ensure that violations have consequences."

Commissioner Liebowitz. When the FTC declined to block the Google DoubleClick merger, FTC Commissioner Jonathan Liebowitz wrote in his statement [3 pages in PDF] at that time that while he concurred in the decision, there are "serious vertical competition issues". Commissioner Pamela Harbour wrote a dissenting statement [13 pages in PDF]. Both also wrote statements about the just released report.

Liebowitz wrote in his statement [4 pages in PDF] that "I write separately to ensure that the Report's endorsement of self-regulation is viewed neither as a regulatory retreat by the Agency nor an imprimatur for current business practice. Indeed, despite a spotlight on e-commerce and online behavioral marketing for more than a decade, to date data security has been too lax, privacy policies too incomprehensible, and consumer tools for opting out of targeted advertising too confounding." (Footnotes omitted.)

He added that "Industry needs to do a better job of meaningful, rigorous self-regulation or it will certainly invite legislation by Congress and a more regulatory approach by our Commission. Put simply, this could be the last clear chance to show that self-regulation can -- and will -- effectively protect consumers' privacy in a dynamic online marketplace." (Footnote omitted.)

Commissioner Harbour. Harbour wrote in her statement [12 pages in PDF] that "Almost ten years ago, representatives from companies involved in all aspects of the online experience sought to create a self-regulatory scheme. A decade later, we are, in many respects, back at the beginning of this process."

She argued that "As a necessary predicate for condoning a self-regulatory approach, the Commission should more completely identify and explore the increasing range of ``free´´ online services that operate by collecting consumer information."

She also wrote about her concerns about secondary uses. She stated that "Secondary use encompasses the combination of online and offline data from multiple public and private sources and from families of online services (e.g., email, search history, mapping software, social networking, mobile, etc.). The Commission knows very little about secondary uses of data. Staff sought comment on this topic and, unfortunately, received minimal response. More information is needed before we can fully understand and analyze the complex linkages among data collectors and users." (Parentheses in original.)

She added in a footnote that "This inquiry may demand compulsory process."

Reaction. The Electronic Privacy Information Center (EPIC) stated in its web site that "There is no means to enforce the guidelines".

The EPIC added that "The guidelines are in part a response to EPIC's 2007 Complaint regarding the Google-Doubleclick merger raising concerns about the profiling of Internet users and the need to establish clear privacy safeguards as a condition of the merger."

Leslie Harris, head of the Center for Democracy and Technology (CDT), stated in a release that "This is the industry's last chance to get self-regulation right ... The FTC report makes clear that the industry's own efforts in this area have fallen short and must do more."

The CDT's Ari Schwartz stated in this release that this report "raises the bar for self-regulation from where the industry is today, but it doesn't address all of our concerns ... For example, the guidelines don't address the question of when a company collects all or considerably all of a user's traffic, such as when an ISP is doing deep packet inspection."

The Interactive Advertising Bureau (IAB) stated in a release that it and other advertising groups support "the FTC's goal of a comprehensive and effective self-regulatory program that protects both consumers and businesses engaged in interactive advertising", and will continue to engage with policymakers and others. See, IAB's general membership list.

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