3/17. Sen. John Rockefeller (D-WV) and Sen. Olympia Snowe (R-ME) released a revised draft [62 pages in PDF] of S 773 [LOC | WW], the "Cybersecurity Act of 2010". The Senate Commerce Committee (SCC) is scheduled to mark up this bill on March 24, 2010. See, notice of executive session.

This huge bill addresses the development of a skilled cyber security workforce, cyber security of federal government systems, collaboration between the federal government and the private sector in promoting cyber security, and federal authority and powers with respect to cyber security.

It does not criminalize any conduct, contain any criminal law provisions, or provide any resources for law enforcement agencies. It does not mandate or address authentication, except to require a report on the subject.

Sen. Snowe (at right) stated in a release that "The Rockefeller-Snowe initiative seeks to bring new high-level governmental attention to developing a fully integrated, thoroughly coordinated public-private partnership ... It is imperative that the public and private sectors marshal our collective forces in a collaborative and complementary manner to confront this urgent threat."

Sen. Rockefeller, Sen. Snowe, and Sen. Bill Nelson (D-FL) introduced this bill on April 1, 2009. Sen. Evan Bayh (D-IN) is also a cosponsor.

Title I of the bill pertains to education, training and accreditation of personnel working in cyber security.

It provides for the creation of a program that would give federal cyber security scholarships to students going to work for the government, with the authorization of appropriations of $300 Million over five years. (See, Section 102.)

It also provides for government cyber security competitions. (See, Section 103.)

It also includes a requirement that federal agencies write an annual "strategic cybersecurity workforce plan", and annually measure cyber security hiring effectiveness. (See, Sections 103 and 104.)

Title III of the bill pertains to cyber security research and development, and authorizes appropriations of over a billion dollars.

Title II of the bill pertains primarily to government planning and authority, and collaboration with relevant private sector entities.

It requires the President to write a "national cybersecurity strategy". (See, Section 201(a).)

It requires the President, in collaboration with private sector owners of "critical infrastructure information systems", and others, to "develop and rehearse detailed response and restoration plans that clarify specific roles, responsibilities, and authorities of government and private sector actors during cybersecurity emergencies". (See, Section 201(b).)

It also authorizes the President to "declare a cybersecurity emergency" and implement the above referenced "collaborative emergency response and restoration plans".

Sen. Rockefeller and Sen. Snowe also released a summary [6 pages in PDF]. It explains that "Unlike physical critical infrastructure such as chemical plants and airports, it is not obvious where the ``critical´´ aspects of IT systems begin and end." Hence, the revised version of the bill "creates a process in which the President and the critical infrastructure sectors collaborate, through the existing sector coordinating councils, to designate the specific IT systems whose disruption or incapacitation would threaten strategic national interests."

This summary adds that "The process is an administrative rulemaking governed by the Administrative Procedure Act and provides for notice and comment regarding criteria for designation; adjudicative review, modification, and appeal; and protection of confidential, proprietary, and classified information."

The revised version also adds new language that provides that the President "may ... grant additional security clearances to owners and operators of United States critical infrastructure information systems".  (See, Section 209.)

The sponsors' summary explains that "Private sector owners and operators of critical infrastructure are responsible for securing a large percentage of the IT systems that our country relies on for basic day-to-day activities, but they often do not have sufficient access to classified information regarding threats to these IT systems." Therefore, the revised version of the bill "requires the President to provide security clearances to key private sector officials and to facilitate the sharing of classified threat information with these officials."

The summary's use of the word "requires" is not consistent with the draft bill's use of the word "may".

This title also requires the government to write a "a comprehensive review of the Federal statutory and legal framework applicable to cybersecurity-related activities in the United States", including, among others statutes, the Privacy Protection Act of 1980 and the Electronic Communications Privacy Act of 1986 (ECPA).

This title also provides that the Office of the Director of National Intelligence, Department of Commerce, Department of Homeland Security, Department of Justice, Department of Defense, and Department of State "shall submit to the Congress a joint assessment of, and report on, cybersecurity threats to and vulnerabilities of Federal information systems and United States critical infrastructure information systems." (See, Section 206.)

Additionally, Title II requires that the President "shall review, and report to Congress, on the feasibility of an identity management and authentication program, with the appropriate civil liberties and privacy protections, for Federal government and United States critical infrastructure information systems". (See, Section 210.)

Title IV contains other provisions. It provides for the creation of "Regional Cybersecurity Centers for the promotion of private sector developed cybersecurity risk measurement techniques, risk management measures, and best practices." The bill also addresses patent rights in inventions developed under this program. (See, Section 402.)

It also requires the promulgation of rules "regarding cybersecurity threat and vulnerability information sharing". (See, Section 403.)

Kyle McSlarrow, head of the National Cable and Telecommunications Association, stated in a release that "We applaud Senators Rockefeller and Snowe for moving ahead on legislation to address the critical security of our nation's cyber networks. This legislation will help government and private sector networks to work together in identifying critical infrastructure and developing cyber emergency response plans. As information is increasingly transmitted via the Internet, combatting cyber threats is critical to safeguarding our nation's broadband's future. Passage of the Rockefeller-Snowe Cybersecurity Act is a necessary and important step in protecting our national infrastructure and we look forward to working together with the Committee as this bill moves forward."

3/18 The Senate Judiciary Committee (SJC) approved, without amendment, S 148 [LOC | WW], the "Discount Pricing Consumer Protection Act".

Introduction. This bill would undo the effects of the June 28, 2007, opinion of the Supreme Court (SCUS) in Leegin Creative Leather Products v. PSKS, an antitrust case regarding minimum resale price maintenance (RPM) by manufacturers and intermediate distributors. This opinion, this bill, and this issue, affect the distribution of complex consumer electronics products.

See also, story titled "SCUS Holds That All Vertical Price Restraints Are Subject to Rule of Reason" in TLJ Daily E-Mail Alert No. 1,603, June 28, 2007.

Sen. Herb Kohl (D-WI) introduced this bill on January 6, 2009. The SJC held a hearing on May 19, 2009.

Sen. Kohl (at left) stated on March 18, 2010, that "Since the Court’s decision three years ago, we have heard reports from all across the nation of manufacturers demanding an end to discounting engaged in by all types of retailers, from small mom-and-pop stores to giant Internet retailers".

He continued that "For nearly a century the rule against vertical price fixing permitted discounters to sell goods at the most competitive price. But now, at exactly the wrong time - in the midst of a serious economic recession when families’ budgets are under tremendous pressure -- this very practice of discounting is imperiled." See, Sen. Kohl's release.

The bill is supported by Democrats. Its cosponsors are Sen. Dianne Feinstein (D-CA), Sen. Russ Feingold (D-WI), Sen. Charles Schumer (D-NY), Sen. Richard Durbin (D-IL), Sen. Sheldon Whitehouse (D-RI), Sen. Amy Klobuchar (D-MN), Sen. Edward Kaufman (D-DE), Sen. Arlen Specter (D-PA) and Sen. Al Franken (D-MN).

S 148 has no Republican cosponsors.

Undoing Leegin is also supported by plaintiffs trial lawyers.

RPM, Dr. Miles and Leegin. Resale price maintenance (RPM) exists when a manufacturer agrees with its distributor(s) to set the minimum price that the distributor(s) can charge for the manufacturer's goods. Prior to the Leegin opinion, RPM was subject to the antitrust per se rule. That is, RPM was automatically illegal, even if it could be demonstrated to have no anticompetitive effect. The case on point was Supreme Court's 1911 opinion in Dr. Miles Medical Co. v. John D. Park & Sons Co., which is reported at 220 U.S. 373.

The Supreme Court overturned Dr. Miles in Leegin. It wrote that the "economics literature is replete with procompetitive justifications for a manufacturer's use of resale price maintenance."  The Supreme Court did not hold that RPM is never a violation of Section 1 of the Sherman Act. Rather, it held that vertical RPM agreements are subject to the rule of reason standard. Leegin is also reported at 551 U.S. 877.

The Supreme Court wrote that "A single manufacturer's use of vertical price restraints tends to eliminate intrabrand price competition; this in turn encourages retailers to invest in tangible or intangible services or promotional efforts that aid the manufacturer's position as against rival manufacturers. Resale price maintenance also has the potential to give consumers more options so that they can choose among low-price, low-service brands; high-price, high-service brands; and brands that fall in between."

Moreover, it wrote that RPM "can increase interbrand competition by facilitating market entry for new firms and brands." Also, "Absent vertical price restraints, the retail services that enhance interbrand competition might be underprovided. This is because discounting retailers can free ride on retailers who furnish services and then capture some of the increased demand those services generate."

RPM is particularly significant for the marketing of complex consumer electronics products.

Many consumers do not know what the products' features are, or how to use the products. In order to promote adoption of new technologies, and sales of their products, manufacturers have an interest in incenting distributors to disseminate information about the new devices through advertising, in store demonstrations, training of employees, and customer support. But, these services impose costs on the distributors who provide them.

This can create a free riding problem, when some distributors go to the trouble to provide such information and support, but others do not. The presence of free riders, offering the products at lower prices, disincents other distributors from educating consumers. This, in turn, disincents manufacturers from offering complex devices that require consumer education. And this inhibits innovation in the IT sector.

Todd Cohen, head of eBay's government relations, has presented a contrary viewpoint. For example, he wrote in his April 28, 2009, prepared testimony for the HJC that "the largest and most established retailers are free-riding on the tremendous consumer information tools created by Internet innovators".

For example, wrote Cohen, "Internet retailers provide significant pre-sale information to their customers", and "consumers are increasingly turning to the Internet to search for product information, make product comparisons and check prices before visiting and purchasing from traditional brick and mortar stores – raising the question of who is actually the free-rider". See also, Cohen's prepared testimony of May 19, 2009, for the SJC.

Nevertheless, the argument that vertical RPM should be subject to the rule of reason, rather than antitrust per se rule, was advanced by many economists in the Leegin case. The Department of Justice's (DOJ) Office of the Solicitor General (OSG) also advanced it in an amicus curiae brief. And, the Supreme Court accepted it.

Leegin was a 5-4 opinion. The subsequent appointment of Justice Sonia Sotomayor cannot change the balance. She replaced former Justice David Souter, who joined in the dissent. Similarly, if Justice John Paul Stevens retires at the end of the current term, his replacement cannot tip the balance, because Justice Stevens joined in the dissent.

Nor can the Department of Justice's (DOJ) Antitrust Division ignore Leegin in brining price fixing cases. The DOJ is bound by judicial precedent.

However, the current Assistant Attorney General in charge of the Antitrust Division, Christine Varney, has expressed her criticism of the Leegin opinion. See, Varney's October 7, 2009, speech titled "Antitrust Federalism: Enhancing the Federal/State Relationship". See also, story titled "Varney Discusses Antitrust, States AGs, RPM and the Rule of Reason" in TLJ Daily E-Mail Alert No. 1,999, October 8, 2009.

Bill Summary. The relevant RPM cases are brought pursuant to Section 1 of the Sherman Act, which is codified at 15 U.S.C. § 1. Hence, S 148 would amend this section.

S 148 provides that "Section 1 of the Sherman Act (15 U.S.C. 1) is amended by adding after the first sentence the following: `Any contract, combination, conspiracy or agreement setting a minimum price below which a product or service cannot be sold by a retailer, wholesaler, or distributor shall violate this Act.´."

It also contains a detailed statement of findings and declaration of purposes.

It finds that "Abandoning the rule against resale price maintenance will likely lead to higher prices paid by consumers and substantially harms the ability of discount retail stores to compete." Moreover, the Supreme Court's opinion "incorrectly interpreted the Sherman Act and improperly disregarded 96 years of antitrust law precedent in overturning the per se rule against resale price maintenance".

It states that its purpose is "to restore the rule that agreements between manufacturers and retailers, distributors or wholesalers to set the minimum price below which the manufacturer's product or service cannot be sold violates the Sherman Act".

House Bill. The companion bill in the House is HR 3190 [LOC | WW], also the "Discount Pricing Consumer Protection Act". The House Judiciary Committee's (HJC) Subcommittee on Courts and Competition Policy (SCCP) held a hearing on this issue, but not HR 3190, on April 28, 2009. Rep. Hank Johnson (D-GA) introduced HR 3190 on July 13, 2009. It now has only three cosponsors -- all Democrats.

The SCCP approved the bill on July 30, 2009. The full Committee approved it on January 13, 2010.

See also, story titled "House Judiciary Committee to Mark Up Bill to Undo Leegin" in TLJ Daily E-Mail Alert No. 2,020, December 3, 2009.

The House bill is short and simple. It provides that "Any agreement setting a price below which a product or service cannot be sold by a retailer, wholesaler, or distributor shall violate section 1 of the Sherman Act (15 U.S.C. 1)."

The House bill contains no statement of findings and declaration of purposes.

3/16. FCC Commissioner Michael Copps wrote a statement [4 pages in PDF] for the March 16, 2010, meeting of the Federal Communications Commission (FCC) regarding the FCC's document [376 pages in PDF] titled "A National Broadband Plan for Our Future". He used this opportunity to discuss in vague language the FCC and competition.

The FCC's document is full of generic statements about fostering, spurring, enabling, ensuring and promoting competition. And, it contains many proposals for fostering competition that are unrelated to use of competition law principles, such as making more spectrum available.

It does recommend that the FCC "should comprehensively review its wholesale competition regulations", "ensure that special access rates, terms and conditions are just and reasonable", and "clarify interconnection rights and obligations".

However, the FCC document concludes that "The lack of a large number of wireline, facilities-based providers does not necessarily mean competition among broadband providers is inadequate."

Moreover, the document does not address the use of competition law tools to address mergers, monopolization, or anti-competitive conduct. It contains no recommendation that the FCC shift from being a rulemaking based agency to competition law based enforcement.

Commissioner Copps made some vague statements, that go beyond the FCC document, regarding competition.

Copps (at right) wrote that "In matters involving competition in our communications ecosystem, we will have to be vigilant to ensure that our strategies actually work. Lack of competition could conceivably require us to take actions going beyond what is generally discussed here. I daresay that I don't need to remind many people here that competition is not, to my mind, the defining hallmark of America's current telecommunications sector. But it is at the core of our enabling statute."

He continued, "In competition, and elsewhere, should we find that we lack the tools we need to conduct effective public interest oversight of the evolving broadband network, we may have to invoke other available authorities already invested in the Commission -- or, should we lack some authority that we need, we may have to request it."

He did not say what these "other available authorities" might be, or what new authority might be given by the Congress.

Commentary. The most important of the FCC's current competition "tools" may be its antitrust merger reviews. The FCC proceeds as if it had statutory authority under Section 7 of the Clayton Act, which is codified at 15 U.S.C. § 18. The FCC's merger reviews are redundant of reviews conducted by the Department of Justice's (DOJ) Antitrust Division or the Federal Trade Commission (FTC), which have statutory authority.

The FCC does not block mergers. It almost always approves them after obtaining concessions from the companies that it terms voluntary. It uses the process to pursue policy objectives which are often unrelated to competition. Preserving competition is not the defining hallmark of the FCC's merger reviews.

Moreover, the FCC can only conduct antitrust merger reviews when companies decide to merge.

Were the FCC to exert competition law principles to review and enjoin the conduct of one service provider in the "evolving broadband network" this would be in the nature of single firm conduct enforcement. The FCC lacks the Sherman Act authority held by the DOJ and FTC to conduct these proceedings. (Such DOJ and FTC proceedings are conducted pursuant to Section 2 of the Sherman Act, which is codified at 15 U.S.C. § 2.) Yet, unlike merger reviews, the FCC is probably incapable of exerting Section 2 like authority.

The FCC does have statutory authority to approve applications to transfer communications licenses. Mergers and related transactions also involve transfers of licenses to the acquiring company. Shortly after passage of the 1996 Act, the FCC began treating certain license transfer applications as if they were antitrust merger proceedings. This mimicking of DOJ/FTC antitrust proceedings provided the FCC a reason for demanding large amounts of documents and information, and to delay. For example, the FCC took over sixteen months between the filing of XM's and Sirius' application, and its approval.

Time is of the essence for merging companies. The FCC can delay with little consequence for its policy goals. The FCC's power derives from its leveraging of its license transfer authority to conduct antitrust merger proceedings, and the participants' need to consummate their mergers, as well as the repeat player phenomenon (the FCC does not treat license transfer applications of non-repeat players as antitrust proceedings), and the absence of any order subject to judicial review.

Were the FCC to issue an order denying an application, that would be a final order of the FCC subject to judicial review. Merging parties cannot seek judicial review of a dilatory federal agency. Nor can they seek judicial review of FCC approval orders, because the FCC first extracts consents. If the FCC were to issue an order denying a merger application, it might be challenged, and a Court of Appeals might overturn that order. The legal basis might be that the FCC lacks antitrust merger review authority. This is an outcome that the FCC seeks to avoid.

In contrast, hypothetically, were the FCC to attempt to enforce Section 2 of the Sherman Act against a single broadband internet access provider, time would not be of the essence to that company. It would be in a much stronger position to hold out against a stipulated settlement with the FCC. Were the FCC to issue an order enjoining certain conduct, that would be a final order subject to judicial review. Any Court of Appeals would likely overturn the order, holding that the FCC has no Section 2 enforcement authority.

Hence, the focus of FCC assertion of competition law authority is merger reviews, rather than single firm conduct, or anti-competitive agreements. If Copps wants the FCC to actually block some future mergers, or to address non-merger activity, the FCC may first have to get more statutory authority.

Commissioner Copps referenced asking for more authority. The FCC could seek expanded antitrust authority from the Congress. But obtaining passage of such legislation would be unlikely. Historically, substantive changes to the antitrust statutes are rare; the law tends to evolve by judicial interpretation and agency policy. Moreover, several industry sectors would likely lobby effectively against it. Also, the members of the Judiciary Committees would be loath to see more of their oversight authority migrate to the Commerce Committees.

And finally, it should be noted that Copps spoke in such broad and vague language that it is not obvious what competition tools he wants the FCC to use, or to acquire from the Congress.

The House will meet at 1:00 PM for legislative business. See, Rep. Hoyer's schedule for March 21. The House is scheduled to vote on HR 3590 [LOC | WW]. As introduced on September 17, 2009, this was an obscure bill titled "Service Members Home Ownership Tax Act of 2009". However, this bill became, via amendment, a vehicle for sweeping health care legislation. The House is now scheduled to hold an up or down vote on the bill that the Senate passed on December 24, 2009. Rep. Hoyer stated in a release that "The rule issued sets up a straight forward process with three votes. First, a vote on the rule. Second, a vote on the Senate bill itself, which will go to the President for his signature. And third, a vote on improvements to the Senate bill, which will then be sent to the Senate for passage." The agenda also includes consideration of a motion to concur in the Senate's amendments to HR 4872 [LOC | WW], the "Reconciliation Act of 2010". Finally, the schedule includes votes under suspension of the rules on numerous non-technology related items.

The Senate will meet at 2:00 PM. It will resume consideration of HR 1586 [LOC | WW], the FAA reauthorization bill.

9:00 AM - 1:00 PM. The Federal Communications Commission's (FCC) Communications Security, Reliability, and Interoperability Council (CSRIC) will meet. See, notice in the Federal Register, March 4, 2010, Vol. 75, No. 42, at Pages 9899-9900. Location: FCC, Commission Meeting Room, 445 12th St., SW.

12:00 NOON - 2:00 PM. The DC Bar Association will host an event titled "State Secrets Privilege". The speakers will be Judge Royce Lambeth (USDC/DC), Arthur Spitzer (ACLU), Stephen Vladeck (American University law school), and Edwin Huddleston. See also, stories titled "Holder Issues Memorandum on State Secrets Privilege" in TLJ Daily E-Mail Alert No. 1,988, September 24, 2009, and "9th Circuit Rules in State Secrets Case" in TLJ Daily E-Mail Alert No. 1,933, April 29, 2009. The price to attend is $20. Most DC Bar events are not open to the public. This event does not qualify for continuing legal education (CLE) credits. See, notice. For more information, call 202-626-3463. Location: DC Bar Conference Center, 1101 K St., NW.

5:30 PM. The House Judiciary Committee (HJC) will hold a hearing titled "Design Patents and Auto Replacement Parts". See, notice. Location: Room 2141, Rayburn Building.

8:00 AM - 6:00 PM. The TechAmerica will host an event titled "20th Annual Federal CIO Survey Conference". See, conference web site. Location: Grand Hyatt, 1000 H St., NW.

9:00 AM - 12:30 PM. The Technology Policy Institute (TPI) will host an event titled "FCC's National Broadband Plan: The Early Reaction". The speakers will include Blair Levin (FCC), Thomas Lenard (TPI), James Cicconi (AT&T), Kyle McSlarrow (NCTA), Peter Pitsch (Intel), Gregory Rosston (Stanford Institute for Economic Policy Research), Thomas Tauke (Verizon), John Mayo (Georgetown Center for Business and Public Policy), Robert Crandall (Brookings Institution), Walter McCormick (USTelecom), Lee Rainie (Pew Internet and America Life Project), Robert Shapiro (Georgetown Center for Business and Public Policy), and Joseph Waz (Comcast). See, registration page. For more information, contact Ashley Creel at 202-828-4405. Location: National Press Club, First Amendment Lounge, 13th floor, 529 14th St., NW.

9:30 AM. The Senate Judiciary Committee (SJC) will hold a hearing titled "Oversight of the Department of Justice". The witness will be Attorney General Eric Holder. See, notice. Location: Room 226, Dirksen Building.

10:00 AM - 12:00 NOON. The House Science Committee's (HSC) Subcommittee on Technology and Innovation will hold a hearing titled "NIST Structure and Authorities, Its Role in Technical Standards, and Federal Coordination on Technical Standards". The HSC will webcast this event. Location: Room 2318, Rayburn Building.

1:00 PM. The Securities and Exchange Commission (SEC) will host a public seminar on eXtensible Business Reporting Language (XBRL), which enables interactive data. See, notice. Location: SEC, 100 F St., NE.

2:30 PM. The Senate Homeland Security and Government Affairs Committee's (SHSGAC) Subcommittee on Federal Financial Management, Government Information, Federal Services, and International Security will hold a hearing titled "Removing the Shroud of Secrecy: Making Government More Transparent and Accountable". The witnesses will include Vivek Kundra (EOP), Aneesh Chopra (EOP), David Ferriero (National Archives and Records Administration), Rob Pinkerton (Adobe Systems), and others. See, notice. Location: Room 342, Dirksen Building.

2:30 PM. The Senate Commerce Committee (SCC) will hold a hearing titled "Reviewing the National Broadband Plan". FCC Chairman Julius Genachowski will testify. See, FCC staff report [376 pages in PDF] titled "A National Broadband Plan for Our Future" and story titled "FCC Releases National Broadband Plan" in TLJ Daily E-Mail Alert No. 2,058, March 15, 2010. See, SCC notice. Location: Room 253, Russell Building.

4:00 - 6:00 PM. The House Intelligence Committee (HIC) will hold a closed hearing titled "FY11 Budget: National Cyber Security". See, notice. Location: Room HVC-304, Capitol Building.

8:00 - 9:00 AM. The Federal Communications Bar Association's (FCBA) Privacy and Data Security Committee will host an event titled "Coffee and Croissants with London Data Privacy Partner, Cynthia O'Donoghue". Register with Desiree Logan at dlogan at reedsmith dot com or 202-414-9318. Location: Reed Smith, East Tower, 1301 K St., NW.

8:30 AM - 5:00 PM. Day one of a two day meeting of the Department of the Interior's (DOI) U.S. Geological Survey's (USGS) National Geospatial Advisory Committee (NGAC). See, notice in the Federal Register, March 5, 2010, Vol. 75, No. 43, at Page 10309. Location: One Washington Circle Hotel, 1 Washington Circle, NW.

9:00 AM - 4:00 PM. The Office of the National Coordinator for Health Information Technology's HIT Policy Committee will meet. See, notice in the Federal Register, February 26, 2010, Vol. 75, No. 38, at Pages 8954-8955. Location: Omni Shoreham Hotel, 2500 Calvert St., NW.

10:00 AM. The House Ways and Means Committee (HWMC) will hold a hearing titled "China's Exchange Rate Policy". The HWMC will webcast this event. See, notice. Location: Room 1100, Longworth Building.

10:00 AM. The House Appropriations Committee's (HAC) Subcommittee on Commerce, Justice, State and Related Agencies will hold a hearing titled "National Science Foundation Budget Overview". The witness will be Arden Bement (NSF Director). Location: Room H-309, Capitol Building.

10:30 AM - 12:30 PM. The House Science Committee's (HSC) Subcommittee on Technology and Innovation will hold a hearing titled "Supporting Innovation in the 21st Century Economy". The witnesses will include Aneesh Chopra (EOP's Office of Science and Technology Policy), Rob Atkinson (Information Technology and Innovation Foundation), Dan Breznitz (Georgia Tech University), and Paul Holland (Foundation Capital). The HSC will webcast this event. Location: Room 2318, Rayburn Building.

2:00 PM. The House Oversight and Government Reform Committee's (HOGRC) Subcommittee on Government Management, Organization and Procurement Subcommittee will hold a hearing titled "Federal Information Security: Current Challenges And Future Policy Considerations". See, notice. The HOGRC will webcast this event. Location: Room 2154, Rayburn Building.

2:00 - 4:00 PM. The House Intelligence Committee (HIC) will hold a closed hearing titled "FY11 Budget: DoJ Intelligence". See, notice. Location: Room HVC-304, Capitol Building.

2:00 PM. The Federal Communications Commission's (FCC) Advisory Committee on Diversity for Communications in the Digital Age will meet. See, notice in the Federal Register, February 5, 2010, Vol. 75, No. 24, at Pages 6031-6032. Location: FCC, Commission Meeting Room, 445 12th St., SW.

2:30 PM. The Senate Judiciary Committee (SJC) will hold a hearing on the nomination of Goodwin Liu to be a Judge of the U.S. Court of Appeals (9thCir). See, notice. The SJC will webcast this event. Location: Room 226, Dirksen Building.

2:30 PM. The Federal Trade Commission's (FTC) Bureau of Economics (BOE) will host a seminar presented by Simon Anderson (University of Virginia Department of Economics). His research focuses on advertising, search and information. For more information, contact Loren Smith lsmith2 at ftc dot gov or Tammy John tjohn at ftc dot gov. Location: FTC, Conference Center, 601 New Jersey Ave., NW.

5:00 PM. Deadline to submit comments to the Executive Office of the President's (EOP) Office of Management and Budget's (OMB) Intellectual Property Enforcement Coordinator regarding coordination of federal efforts to enforce intellectual property rights. See, notice in the Federal Register, February 23, 2010, Vol. 75, No. 35, at Page 8137-8139.

TIME? The U.S.-China Economic and Security Review Commission will hold a hearing titled "China's Industrial Policy and its Pillar Industries". This event is open to the public. Location: Room 236, Russell Building, Capitol Hill.

8:30 AM - 4:30 PM. Day two of a two day meeting of the Department of the Interior's (DOI) U.S. Geological Survey's (USGS) National Geospatial Advisory Committee (NGAC). See, notice in the Federal Register, March 5, 2010, Vol. 75, No. 43, at Page 10309. Location: One Washington Circle Hotel, 1 Washington Circle, NW.

10:00 AM. The Senate Judiciary Committee (SJC) will hold an executive business meeting. The agenda includes consideration of S 3111 [LOC | WW], the "Faster FOIA Act of 2010", a bill to create a powerless commission that would write a toothless report on why federal officials do not comply with the federal Freedom of Information Act (FOIA), which is codified at 5 U.S.C. § 552. The SJC rarely follows its published agendas. The SJC will webcast this event. See, notice. Location: Room 226, Dirksen Building.

10:00 AM. The House Commerce Committee's (HCC) Subcommittee on Communications, Technology, and the Internet (SCTI) will hold a hearing on the FCC staff report [376 pages in PDF] titled "A National Broadband Plan for Our Future". See, HCC notice, and story titled "FCC Releases National Broadband Plan" in TLJ Daily E-Mail Alert No. 2,058, March 15, 2010. Location: Room 2123, Rayburn Building.

2:00 PM. The House Appropriations Committee's (HAC) Subcommittee on Commerce, Justice, State and Related Agencies will hold a hearing titled "USPTO FY 2011 Budget Overview". The witness will be David Kappos (head of the USPTO). Location: Room H-309, Capitol Building.

6:00 - 8:00 PM. The Federal Communications Bar Association's (FCBA) Young Lawyers Committee will host an event titled "Happy Hour". For more information, contact Nguyen Vu at nguyen dot vu at bingham dot com or Micah Caldwell at mcaldwell at fh-law dot com. Location: Mackey's Public House, 1823 L St., NW.

10:00 AM - 12:00 NOON. The Department of State's (DOS) International Telecommunication Advisory Committee (ITAC) will meet by teleconference to prepare for an April 19-30, 2010, meeting of International Telecommunication Union's (ITU) Telecommunication Standardization Sector's (ITU-T) Study Group 13 (Future networks including mobile and Next Generation Networks). See, notice in the Federal Register, March 9, 2010, Vol. 75, No. 45, at Page 10860.

12:00 NOON. The American Bar Association's (ABA) Antitrust Section will host a brown bag lunch titled "60 Minutes with the Antitrust Division". The speakers will include Christine Varney, William Cavanaugh, and Molly Boast. Location: Wilmer Hale, 1875 Pennsylvania Ave., NW.

5:00 PM. Extended deadline to submit to the Department of Commerce's (DOC) National Telecommunications and Information Administration (NTIA) applications for Comprehensive Community Infrastructure (CCI) projects under the Broadband Technology Opportunities Program (BTOP). See, notice in the Federal Register, March 8, 2010, Vol. 75, No. 44, at Page 10464.

3/20. The Senate Commerce Committee (SCC) is scheduled to mark up S 2881 [LOC | WW], the "FCC Commissioners' Technical Resource Enhancement Act" on March 24, 2010. See, notice of executive session.

This bill would enable each of the five Federal Communications Commission (FCC) Commissioners to also hire an "electrical engineer or computer scientist". Each Commissioner already has authority under 47 U.S.C. § 154 to hire "three professional assistants".

Commissioners currently have authority to hire engineers or scientists. However, they almost always choose to hire lawyers. This bill would enable each Commissioner to expand his or her office, but require that the additional hire be an engineer of scientist.

Similarly, the President is free to appoint as Commissioners engineers, scientists, economists, or other non-lawyers. However, Presidents almost always appoint lawyers. Former Commissioner Harold Furchtgott-Roth, an economist, was the last non-lawyer.

The FCC, and its predecessor agency, were conceived nearly a century ago as bodies of technical experts that would bring their independence and expertise to bear in implementation by rulemaking and adjudication of the directives set forth in Congressional statutes.

The FCC has long since abandoned this model. The agency is run by lawyers, rather than technicians, and often lacks the in house expertise to understand the technologies and business models that it regulates. It also operates, in legislative and policy making mode, without independence, in an agency relationship with the Congress.

Sen. Olympia Snowe (R-ME) and Sen. Mark Warner (D-VA) introduced this bill on December 14, 2009.

Sen. Snowe stated in December that this bill provides that each FCC Commissioner "may hire an additional staff member -- an electrical engineer or computer scientist -- to provide in-depth technical consultation. Currently, the statute allows each Commissioner to appoint only three professional assistants and a secretary. Typically, these professional assistants have been legal advisors covering the wireline, wireless, and cable/media sectors. However, in order to properly regulate communications, Commissioners must be well-versed in both the legal and technical aspects of the issues." See, Congressional Record, December 14, 2009, at Page S13192.

She added that "With the rapid advancement of technologies and innovation within the telecommunications industry, it is imperative that Commissioners have the technical expertise on their staff to make well informed regulatory decisions".

Rep. Jerry McNerney (D-CA) introduced a substantially identical bill in the House on March 10, 2010. It is HR 4809 [LOC | WW], also titled the "FCC Commissioners' Technical Resource Enhancement Act". It has been referred to the House Commerce Committee (HCC), of which Rep. McNerney is a member. Rep. McNerney received a Ph.D. in mathematics from the University of New Mexico.

Both S 2881 and HR 4089 provide as follows: "Section 4(f)(2) of the Communications Act of 1934 (47 U.S.C. 154(f)(2)) is amended by inserting after the first sentence the following new sentence: `Each commissioner may also appoint an electrical engineer or computer scientist to provide the commissioner technical consultation when appropriate and to interface with the Office of Engineering and Technology, Commission Bureaus, and other technical staff of the Commission for additional technical input and resources, provided that such engineer or scientist holds an undergraduate or graduate degree from an institution of higher education in their respective field of expertise.´."

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