7/15. The Senate Commerce Committee (SCC) amended and approved S 3304 [LOC | WW], the "Equal Access to 21st Century Communications Act", a huge, far reaching and complex bill, with almost no debate or discussion.

It would create a vast new FCC based regulatory regime covering a wide range of software, computers, electronic devices, and services that are used for communications, including equipment and software that can be used for VOIP. It would also give the FCC broad new authority to regulate the design of electronic devices that could be used to receive or play video.

In response, the Consumer Electronics Association (CEA) issued a release with the phrase, "government-mandated design standards that chill innovation".

The bill would also expand existing FCC regulatory regimes regarding hearing aid compatibility and communications relay services. The bill also would create a vaguely defined FCC authority to create or enable IP protocol, text based, emergency communications for deaf people.

The bill would also require the FCC to reinstate and expand its video description regulations.

The bill would also provide immunity from liability under the legal regimes created or amended by this bill for communications, access, storage and search service providers for the actions of third parties who use their services.

The SCC approved an amendment in the nature of a substitute (AINS), along with six amendments, at once, without any readings, descriptions, explanations, debate, or roll call votes. The base bill is 59 pages. The six amendments contain a total of 16 pages. These amendments contain a total of 74 changes to the AINS.

A few members of the SCC made brief remarks after approval of the bill. The SCC has not yet released a clean copy of the bill as amended.

The SCC approved an amendment in the nature of a substitute (AINS) [59 pages in PDF] and six further amendments. See, Pryor amendment 2 [5 pages in PDF], Ensign amendment 1 [3 pages in PDF], Cantwell amendment 5 [1 page in PDF], Cantwell Amendment 15 [1 page in PDF], Cantwell 14 [4 pages in PDF], and Cantwell 16 [2 pages in PDF].

The SCC has a history of making substantive changes to bills, under the guise of technical and conforming changes, after it has marked up communications bills under similar circumstances.

The related bill in the House is HR 3101 [LOC | WW], also titled the "Equal Access to 21st Century Communications Act". The House Commerce Committee's (HCC) Subcommittee on Communications, Technology and the Internet (SCTI) amended and approved that bill on June 30, 2010. See, amendment in the nature of a substitute (AINS) [56 pages in PDF]. The HCC AINS is similar, but not identical, to the SCC AINS.

Background. The 101st Congress enacted the Americans with Disabilities Act (ADA) in 1990. It is Public Law No. 101-336. Proponents of S 3304 and HR 3101 are now touting the twentieth anniversary of passage of the ADA as cause for passing more legislation.

The ADA is the main disability access and discrimination statute. The Congress enacted the ADA primarily to require the removal of architectural barriers to disabled persons in public accommodations, physical locations such as restaurants, movie theaters, and hotels, and to bar discrimination against disabled persons, especially in employment.

Section III of the ADA, is enforced by the Department of Justice's (DOJ) Civil Rights Division (CRD), and also serves as the basis for a high volume of private actions. It falls within the jurisdiction of the House and Senate Judiciary Committees.

Moreover, the CRD takes the position, unsupported by the plain language of the statute, that Title III also applies to internet, web sites, software, electronic devices, and other information technologies. See, story titled "DOJ CRD May Write Regulations to Expand the ADA to Cover the Internet and Information Technologies" and related stories in TLJ Daily E-Mail Alert No. 2,080, April 26, 2010. HR 3101 and S 3304 would expand disability based, FCC enforced, regulation to the internet, web sites, software, electronic devices, and other information technologies.

Also, recently, the CRD brought administrative actions that indirectly targeted a device maker and online service provider, Amazon, for its Kindle. See, story titled "DOJ CRD Regulates eBook Reader Designs" in TLJ Daily E-Mail Alert No. 2,080. These bills arguably would impact Kindle also.

Title IV of the ADA regulates telecommunications services for hearing and speech impaired persons. It is codified at 47 U.S.C. § 225. It is enforced by the Federal Communications Commission (FCC), and falls within the jurisdiction of the House and Senate Commerce Committees.

This section provides, in part, that the FCC "shall ensure that interstate and intrastate telecommunications relay services are available, to the extent possible and in the most efficient manner, to hearing-impaired and speech-impaired individuals in the United States". This section also gives the FCC rulemaking and enforcement authority. See, FCC's TRS rules, which are codified at 47 C.F.R. § 64.601-64.606. However, the FCC's regulatory authority is limited to "common carriers".

In addition, 47 U.S.C. § 610, which dates back to the original Communications Act of 1934, gives the FCC authority to write rules "to ensure reasonable access to telephone service by persons with impaired hearing", and especially hearing aid compatibility rules" for "telephones".

Also, 47 U.S.C. § 613, regarding "Video Programming Accessibility", gives the FCC authority to write closed caption rules for video programming.

The regulated entities, and divisions of authority between the FCC and DOJ, were once clear. Title III of the ADA applied to architectural barriers in physical spaces, and mainly benefited mobility disabled people. It was within the jurisdiction of the DOJ and Judiciary Committees matter.

Title IV of the ADA, dealt with communications relay services and carriers, Section 610 dealt with telephone hearing aid compatibility, and Section 613 dealt with closed captions for TV and cable. These were within the jurisdiction of the FCC and Commerce Committees.

New products and services enabled by the internet and information technologies have been offered since the ADA and the Telecommunications Act of 1996 that fall outside both the DOJ and FCC regulatory regimes. And now, both the DOJ and the Commerce Committees seek to expand their existing legal regimes to reach new technologies.

There is the potential for the evolution of dual, overlapping, redundant, and inconsistent legal regimes.

Bill Summary. Most of the provisions of this bill are grouped into two titles. The first is titled "Communications Access", and deals with hearing aid compatibility, telecommunications relay service, emergency communications, and regulating the design of computers, electronic devices, software and online services that can be used for voice and other communications. (See, AINS, at pages 3-32.) The second is titled "Video Programming", and deals with closed captioning, video descriptions, and regulating devices that can be used to receive or play video. (See, AINS, at pages 32-59.)

For a summary of the communications design mandates provisions of Title I of the bill, see related story in this issue titled "Disability Access Bill Provides for FCC Regulation of Software, Equipment, and Internet Services Used to Communicate".

This bill would also expand the FCC hearing aid compatibility legal regime. (See, AINS, at pages 5-10.)

This bill would also expand the FCC's telecommunications relay service regime. For example, it would encompass both interconnected and non-interconnected VOIP services. (See, AINS, at pages 10-11.) The bill would also create a relay service for people who are both deaf and blind. It references the Helen Keller Act's definition of deaf-blind, at 29 U.S.C. § 1905. (See, AINS, at pages 25-26, as amended by Pryor 2 amendment.)

This bill also would give the FCC authority to write rules to create or do something that enables "real-time text communication that ensures access by people with disabilities to an Internet protocol-enabled emergency network". (AINS, at pages 26-32, as amended by Ensign, Cantwell 14, and Cantwell 16 amendments.) It would also create an "Emergency Access and Real-Time Text Advisory Committee".

This bill would require the FCC to write new relay service rules for people who are both deaf and blind. The AINS contained a Section 105 that would have amended 47 U.S.C. § 254 regarding universal service. It would have provided subsidies for relay service. Sen. Pryor's amendment replaces the language of the AINS with new language.

This new language provides, in part, that the FCC shall write rules that "define as eligible for relay service support those programs that are approved by the Commission for the distribution of specialized customer premises equipment designed to make telecommunications service, Internet access service, and advanced communications, including interexchange services and advanced telecommunications and information services, accessible by individuals who are deaf-blind." It also sets an annual cap of $10 Million.

The second half of the bill, regarding "Video Programming", would first create a "Video Programming and Emergency Access Advisory Committee". (See, AINS, at pages 32-40, as amended by Pryor 2 and Ensign amendments.)

The bill would amend 47 U.S.C. § 613, regarding "Video Programming Accessibility". This section gives the FCC authority to write closed caption rules for video programming. Closed captioning is verbatim transcription from audio to text for the benefit of deaf people.

The bill would require the FCC to reinstate and expand its video description regulations. Section 613 defines "video description" as "the insertion of audio narrated descriptions of a television program's key visual elements into natural pauses between the program’s dialogue". It is for the benefit of blind people.

The U.S. Court of Appeals (DCCir) held in its November 8, 2002, opinion in MPAA v. FCC that the statute does not give the FCC authority to mandate video description. This bill would provide that authority.

The bill also directs the FCC to issue a report on expanding video description mandates to cover "video programming that is delivered using Internet protocol".

Section 613 does not define "video programming". The AINS did (at page 45). However, the Ensign amendment changes it to "programming by, or generally considered comparable to programming provided by a television broadcast station, but not including consumer-generated media".

For example, video posted to YouTube need not contain closed captions or video descriptions.

The bill also would give the FCC broad new authority to regulate the design of electronic devices that could be used receive or play back video programming. See, related story in this issue titled "Disability Access Bill Provides for FCC Regulation of Devices that Can Receive or Play Video".

The bill provides immunity from liability under the legal regimes created or amended by this bill for certain services providers for the actions of third parties. See, related story in this issue titled "Disability Access Bill Provides Section 230 Like Immunity for Communications, Access, Storage and Search Service Providers".

Definitions are littered throughout the bill.

In general, this bill would apply to new technologies outdated regulatory techniques long ago applied to telecommunications. For example, new IT products and services tend to have numerous functions and uses, while the black rotary telephone could only be used for point to point circuit switched voice communications. This bill would reach products and services that enable any of many kinds of voice or non-voice communications, including those for which communications is just one of numerous functions. That is, the entire product or service would be subject to FCC design mandates even though just one use relates to disability access.

Also, to the extent that there was once only one service provider in telecommunications, if it did not provide accessibility to a particular group, that group lacked access. It made sense to impose mandates on every (the only) service provider. In contrast, there is now a wide range of manufacturers and service providers offering a huge number of offering. This bill still takes the approach that every service provider and manufacturer must provide accessibility to every disability group, regardless of whether or not there are already numerous other offerings on the market that serve each disability group.

Also, there was once no competition in phone service. In contrast, now there are often a vast number of competitors in IT markets, employing a wide range of strategies to compete and differentiate their products, including better accessibility for persons with various disabilities.

Also, innovations in telecommunications were once few and far between. Regulation of design had little capacity to stifle innovation. In contrast, IT markets are characterized by rapid innovation, which would be hampered by FCC rulemakings, approval processes, and complaint proceedings.

Support for the Bill. All of the sponsors of the SCC bill, S 3304, and almost all of the sponsors of the House version of the bill, HR 3101, are Democrats. All of the sponsors of S 3304 are members of the SCC, but not the Senate Judiciary Committee (SJC). HR 3101 has sponsors who are members of the HCC, and sponsors who are members of the House Judiciary Committee (HJC).

Sight and hearing disability advocacy groups support S 3304 and/or HR 3101. The National Association of the Deaf (NAD) issued a release on July 1 praising approval of HR 3101 by the Subcommittee on Communications, Technology and the Internet on June 30, 2010. Bobbie Scoggins, President of the NAD, advocated passage of S 3304 at the SCC's hearing on May 26. See, prepared testimony. Mark Richert, Director of the American Foundation for the Blind, advocated passage of HR 3101 at the April 22 hearing of the HJC's Subcommittee on the Constitution, Civil Rights, and Civil Liberties. See, prepared testimony.

Some communications companies support S 3304. They are already impacted by Title IV of the ADA, Section 610 and/or Section 613. In contrast, there are now IT companies that offer fungible or substitutable products or services which are not covered. S 3304 and HR 3101 would extend regulatory burdens to many of these new products and services. Moreover, many large communications companies are often more able to incur the costs of complying with existing and expanded regulatory mandates, and more skilled at influencing FCC proceedings, than are small and start up IT companies. Some communications companies thus have non-altruistic competition based reasons for backing this bill.

Peter Davidson of Verizon stated in a release distributed at the mark up that this action on S 3304 "is very good news".

The USTelecom did not issue a release after the July 15 mark up. However, Walter McCormick, head of the USTelecom, testified at both the May 26, 2010, SCC hearing, and the June 10 HCC hearings, in support of these bills.

Steve Largent, head of the CTIA, stated in a release that "The collaborative, bi-partisan work leading up to today's mark-up has produced a bill that addresses many of the concerns CTIA had with the bill at the time of its introduction. While there are areas where CTIA would like to see additional changes, we are hopeful that our remaining concerns can be addressed before enactment."

He added that "S. 3304 is an important bill and CTIA is committed to working with its sponsors to achieve its enactment this year. We hope to have a framework that will ensure that every American can fully engage with cutting-edge mobile products and services while preserving the flexibility that the U.S. wireless industry needs in order to continue to innovate and lead the world." See also, prepared testimony [PDF] of the CTIA's Bobby Franklin at the HCC/SCTI hearing on June 10, 2010.

Kyle McSlarrow, head of the National Cable and Telecommunications Association (NCTA), stated in a release that "Today's action by Chairman Rockefeller and members of the Senate Commerce Committee significantly advances our shared goal of improving the accessibility of communications services and equipment in the 21st Century. We commend S. 3304’s principal sponsors, Senators Pryor, Kerry and Dorgan, for the substantial improvements and clarifications made to the bill. We also applaud Senator Ensign for his efforts in helping to promote consensus around identifiable and achievable goals. We will continue to work constructively with the Senate and House committees and the entire Congress as this important legislation moves forward." See also, prepared testimony of the NCTA's James Assey at the HCC/SCTI hearing on June 10, 2010.

Opposition. The Consumer Electronics Association (CEA) issued a release on July 15. "We appreciate the efforts of the bill sponsors and Senator Ensign and Cantwell to improve the bill by addressing a number of industry concerns. During the mark up, committee members noted that more work needs to be done to address outstanding concerns prior to full Senate consideration. We support the goal of ensuring that all Americans can reap the benefits of new and emerging technologies. We look forward to working with the Committee to provide hearing- and visually impaired Americans access to technology without imposing government-mandated design standards that chill innovation."

Gary Shapiro (at right), head of the CEA, testified at the HCC's SCTI's hearing on June 10, 2010, before the June 30 mark up. He wrote in his prepared testimony [PDF] that HR 3101 "is extremely broad in its scope; chilling innovation and the entry of new products. More, it ignores the great number of products on the market which serve the needs of many in the disability community."

He also stated that the bill "does not take into account the ever-changing dynamic of Internet-based services and devices. We are no longer living in a world of single function devices. Internet-based voice, video and data services and equipment involve a diverse and symbiotic ecosystem of content providers, service providers, software applications and network edge devices. Each part of the distribution chain must cooperate to provide the end user with an acceptable result. The legislation’s attempt to adapt old regulations established to apply to primary function services and devices, such as Section 255 and FCC's closed captioning rules, to new multi-function devices will not produce the desired results, and will only impede the advancement of new technologies and accessible features."

It would result in "overly burdensome compliance costs, less variety of products and would hinder United States competitiveness in the global market". Shapiro added that "one can only imagine if the iPhone or the Internet itself would have ever been brought to market if H.R. 3101 was current law".

TLJ also spoke with Jason Oxman, SVP of Industry Affairs at the CEA, on July 19. He said that "our industry has a very long history of making products that are accessible to the disability communities", but that this legislation may "replace the free market successes that our industry has made possible, with design mandates".

He predicted that the effect would be to "reduce the ability of the tech industry to make accessible products available". Moreover, it could result in "technology companies pulling products from the market".

He concluded that "further improvements to the legislation can and should be made".

7/15. The Senate Commerce Committee (SCC) amended and approved S 3304 [LOC | WW], the "Equal Access to 21st Century Communications Act". The SCC approved an amendment in the nature of a substitute (AINS) [59 pages in PDF] and six further amendments.

Title I pertains to "Communications Access". Section 104 pertains to "Access to Advanced Communications Services and Equipment". It would create a vast new FCC based regulatory regime covering a wide range of software, computers, electronic devices, and services that are used for communications, including equipment and software that can be used for non-interconnected VOIP.

See, Pryor amendment 2 [5 pages in PDF], Ensign amendment 1 [3 pages in PDF], Cantwell amendment 5 [1 page in PDF], Cantwell Amendment 15 [1 page in PDF], Cantwell 14 [4 pages in PDF], and Cantwell 16 [2 pages in PDF].

Section 104 of the AINS would add a new section to Title 47 titled "Access to Internet-Based Services and Equipment". (The Ensign amendment changes the words "Internet-Based" to "Advanced Communications".) This section would give the FCC new, vast, and intrusive authority to regulate the design of wide range of information technologies, including software, computers, and any other devices that can be used to access the internet.

The bill provides that "a manufacturer of equipment used for advanced communications services, including end user equipment, network equipment, and software, shall ensure that the equipment and software that such manufacturer designs, develops, and fabricates shall be accessible to and usable by individuals with disabilities". (See, AINS, at page 12.)

The bill also  provides that "a provider of advanced communications services shall ensure that such services offered by such provider are accessible to and usable by individuals with disabilities". (AINS, at page 12.)

Although, these mandates do not apply retroactively to equipment, software, or services made or provided before the effective date of the FCC's implementing regulations.

A key term in these two sections is "advanced communications services", or ACS. The bill defines ACS to mean "(A) interconnected VoIP service; (B) non-interconnected VoIP service; (C) electronic messaging service; and (D) interoperable video conferencing service". The bill then defines "electronic messaging service" as "a service that provides real-time or near real-time non-voice messages in text form between persons over communications networks".

That is, companies that make stuff that is "used for advanced communications service", which includes anything that is used for "non-interconnected VOIP", among other things, "shall ensure" that its stuff, including "end user equipment" and "software", satisfies the FCC's design requirements.

Any desktop computer, laptop, or mobile computing device, that can get internet access, can have VOIP software installed on it, and be used for computer to computer VOIP conversations, is covered. It does not have to touch the PSTN. The users need not even have an account with a phone company, or even a broadband internet access service provider. But, since all of these devices, and the VOIP and OS software installed thereon, can be "used for advanced communications services", they would be subject to FCC mandates.

Moreover, the bill provides that "Each provider of advanced communications services has the duty not to install network features, functions, or capabilities that do not impede accessibility or usability." (See, AINS, at page 13.)

Amazon's Kindle, which was the target of recent Department of Justice (DOJ) administrative actions could be covered by this section of the bill. Kindles do not have any voice capacity. However, Kindles can be used as an "electronic messaging service".

Amazon's web site states that users can post "passages to social networks like Facebook and Twitter directly from Kindle. Want to post or tweet about a great new book or a newspaper quote? When you highlight or create a note in your book or periodical, you can easily share it with your social network." This may constitute "messages in text form between persons over communications networks" within the meaning of the bill.

7/15. The Senate Commerce Committee (SCC) amended and approved S 3304 [LOC | WW], the "Equal Access to 21st Century Communications Act". The SCC approved an amendment in the nature of a substitute (AINS) [59 pages in PDF] and six further amendments.

See, Pryor amendment 2 [5 pages in PDF], Ensign amendment 1 [3 pages in PDF], Cantwell amendment 5 [1 page in PDF], Cantwell Amendment 15 [1 page in PDF], Cantwell 14 [4 pages in PDF], and Cantwell 16 [2 pages in PDF].

Title II pertains to "Video Programming". Section 203, 204, and 205 would give the Federal Communications Commission (FCC) broad new authority to regulate the design of electronic devices that could be used to receive or play video programming. (See, AINS, Section 203, at pages 48-52, Section 204, at pages 52-54, and Section 205, at pages 55-58, as amended by Ensign, Cantwell 5, Cantwell 15, and Pryor 2 amendments.)

The bill directs the FCC to issue a report on expanding video description mandates to cover "video programming that is delivered using Internet protocol".

Currently, 47 U.S.C. § 613, regarding "Video Programming Accessibility", does not define "video programming". The AINS did (at page 45). However, the Ensign amendment changes it to "programming by, or generally considered comparable to programming provided by a television broadcast station, but not including consumer-generated media".

Section 203 addresses closed captioning decoder and video description capability. One witness at the May 26 SCC hearing said that small mobile devices that can play video do not have closed captioning.

So, for example, the bill would require the FCC to mandate that "apparatus designed to receive or play back video programming transmitted simultaneously with sound ... be equipped with built-in closed caption decoder circuitry or capability designed to display closed-captioned video programming", among other things. (See, AINS, at page 49.)

Section 204 pertains to user interfaces on digital apparatus. The bill requires that any device that can play video must be accessible to blind people, and this includes audio versions of screen menus, among other mandates.

It provides that the FCC shall require "(1) ... that digital apparatus designed to receive or play back video programming transmitted in digital format simultaneously with sound, including apparatus designed to receive or display video programming transmitted in digital format using Internet protocol, be designed, developed, and fabricated so that control of all built-in apparatus functions are accessible to and usable by individuals who are blind or visually impaired". (See, AINS, at page 53.)

It also provides that the FCC shall require "(2) that if on-screen text menus or other visual indicators built in to the digital apparatus are used to access the functions of the apparatus described in paragraph (1), such functions shall be accompanied by audio output that is either integrated or peripheral to the apparatus, so that such menus or indicators are accessible to and usable by individuals who are blind or visually impaired in real-time". (See, AINS, at page 53.)

It further provides that the FCC shall require "(3) that for such apparatus equipped with the functions described in paragraphs (1) and (2) built in access to those closed captioning and video description features through a mechanism that is reasonably comparable to a button, key, or icon designated by activating the closed captioning or accessibility features".

Section 205 pertains to access to video programming guides and menus provided on navigation devices. One vision impaired witness at the SCC hearing on May 26 stated that he has a hard time finding channels on cable TV.

The bill would mandate that "on-screen text enus and guides provided by navigation devices ... for the display or selection of multichannel video programming are audibly accessible in real-time upon request by individuals who are blind or visually impaired". (See, AINS, at page 55.)

A deaf witness at the SCC hearing on May 26 said that set top boxes allow users to control the size, color and font of captions, but that the controls are too hard to figure out. The bill would mandate that "navigation devices with built-in closed captioning capability, that access to that capability through a mechanism is reasonably comparable to a button, key, or icon designated for activating the closed captioning, video description, or accessibility features". (See, AINS, at page 55, as amended by Ensign amendment.)

The bill would impose similar mandates on software makers.

7/15. The Senate Commerce Committee (SCC) amended and approved S 3304 [LOC | WW], the "Equal Access to 21st Century Communications Act". The SCC approved an amendment in the nature of a substitute (AINS) [59 pages in PDF] and six further amendments.

The AINS adds an immunity provision for certain communications, access, storage and search service providers. They are immune from liability for violations of this Act and provisions of the Communications Act amended by this Act by third parties who use their services.

The bill provides that "no person shall be liable for a violation of the requirements of this Act (or of the provisions of the Communications Act of 1934 that are amended or added by this Act) with respect to video programming, online content, applications, services, advanced communications services, or equipment used to provide or access advanced communications services to the extent such person (1) transmits, routes, or stores in intermediate or transient storage the communications made available through the provision of advanced communications services by a third party; or (2) provides an information location tool, such as a directory, index, reference, pointer, menu, guide, user interface, or hypertext link, through which an end user obtains access to such video programming, online content, applications, services, advanced communications services, or equipment used to provide or access advanced communications services."

It provides an exception. There is no limitation on liability for "any person who relies on third party applications, services, software, hardware, or equipment to comply with the requirements of this Act ... with respect to video programming, online content, applications, services, advanced communications services, or equipment used to provide or access advanced communications services."

None of the amendments approved on July 15 alter this language.

Nothing in the AINS, and nothing said by Senators at the July 15 mark up, clarifies the relation between this section and the immunity clauses codified at 47 U.S.C. § 230. Would this section merely provide greater specificity to the general grant of immunity of Section 230? Would this language entail that Section 230 does not apply to a judicial or administrative action brought under this Act, Title IV of the Americans with Disabilities Act (ADA), the entire ADA, and/or any civil rights statute?

Section 230(c)(1) provides "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider."

Section 230(c)(2) provides that "No provider or user of an interactive computer service shall be held liable on account of (A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or (B) any action taken to enable or make available to information content providers or others the technical means to restrict access to material ..."

It should also be noted that the Department of Justice's (DOJ) Civil Rights Division (CRD) has taken the position that Section 230 does not apply in its civil rights actions. In contrast, judicial opinions have applied Section 230 to actions brought under state and federal civil rights laws.

The House will meet at 12:30 PM for morning hour debate, and at 2:00 PM for legislative business. It will consider several non-technology related items under suspension of the rules. Votes will be postponed until 6:00 PM. See, Rep. Hoyer's schedule for the week of July 19.

The Senate will meet at 2:00 PM. It will resume consideration of HR 5297 [LOC | WW], the "Small Business Jobs and Credit Act of 2010", a bill that would make available to certain businesses tax relief and loan programs. The House passed its version of this bill on June 17, 2010, on a party line vote of 241-182. See, Roll Call No. 375. There will be no votes.

11:00 AM - 3:00 PM. The Federal Communications Commission (FCC) and the Department of Commerce (DOC) will host an event titled "Technology Showcase". The agenda also includes speeches and the showing of a video. This event pertains to the impact of technology on people with disabilities. See, notice. Location: Main Foyer, DOC, 1401 Constitution Ave., NW.

12:15 - 1:30 PM. The Executive Office of the President's (EOP) Office of the U.S. Intellectual Property Enforcement Coordinator (IPEC) will host a meeting regarding enforcement of intellectual property laws. Victoria Espinel (IPEC) will speak. Reporters are barred. The Federal Communications Bar Association (FCBA) states that this is an FCBA event. Location: Hogan Lovells, 555 13th St., NW.

5:00 PM. Deadline to register to attend the two day joint meeting of the Federal Communications Commission (FCC) and Food and Drug Administration (FDA) titled "Enabling the Convergence of Communications and Medical Systems: Ways to Update Regulatory and Information Processes". See, FCC Public Notice (DA 10-1071 in ET Docket No. 10-120).

Extended deadline to submit comments to the Federal Communications Commission's (FCC) Public Safety and Homeland Security Bureau (PSHSB) regarding interoperability, out-of-band emissions, and equipment certification for 700 MHz public safety broadband networks. See, May 18, 2010, public notice, and June 14, 2010, public notice extending the deadline.

The House will meet at 10:30 AM for morning hour debate, and at 12:00 NOON for legislative business. The schedule for the week includes consider of numerous bills under suspension of the rules, including HR 4842 [LOC | WW], the "Homeland Security Science and Technology Authorization Act of 2010", HR 5566 [LOC | WW], the "Prevention of Interstate Commerce in Animal Crush Videos Act of 2010", and S 1749 [LOC | WW], the "Cell Phone Contraband Act of 2010", a bill pertaining to the use of cell phones in prisons. See, Rep. Hoyer's schedule for the week of July 19.

Sen. Harry Reid (D-NV), the Senate Majority Leader, announced on July 15 that the next Senator from the state of West Virginia will be sworn in at 2:15 PM on July 20, and that the Senate will then hold a cloture vote on HR 4213 [LOC | WW], the "American Jobs and Closing Tax Loopholes Act of 2010". Section 241 of this huge bill contains a one year extension of the research and development tax credit. Section 253 extends the deduction of corporate contributions of computer inventory for educational purposes. Section 255 extends the special rules for expensing certain movie and television productions.

8:00 - 10:00 AM. Broadband Census News LLC will host an event titled "The Smart Grid, Telecommunications and the Electric Infrastructure". The speakers will include Brett Kilbourne (Utilities Telecom Council), Nick Sinai (FCC), and Cynthia Brumfeld (UTC). Breakfast will be served. The price to attend is $47.12. Location: Clyde's of Gallery Place, 707 7th St., NW.

8:30 AM. Day one of a two day meeting of the Department of Homeland Security's (DHS) Homeland Security Science and Technology Advisory Committee (HSSTAC). Most of this meeting is closed to the public. See, notice in the Federal Register, July 13, 2010, Vol. 75, No. 133, at Page 39955. Location: 4075 Wilson Blvd., Liberty Conference Center, 3rd floor, Arlington, VA.

10:00 AM. The Senate Judiciary Committee (SJC) will hold an executive business meeting. The agenda includes consideration of the nominations of Elena Kagan to be a Justice of the Supreme Court and James Cole to be Deputy Attorney General. See, notice. The SJC will webcast this event. Location: Room 216, Hart Building.

10:00 AM - 12:00 NOON. The House Science Committee's (HSC) Subcommittee on Investigations and Oversight will hold a hearing titled "Building a Science of Economics for the Real World". Location: Room 2318, Rayburn Building.

The Federal Communications Commission's (FCC) Auction 88 (construction permits for 11 commercial FM stations, one commercial FM translator station, and one commercial AM station) is scheduled to begin. See, FCC's June 7, 2010, Public Notice (DA 10-1009).

1:00 PM. The House Ways and Means Committee will hold a hearing titled "Efforts to Promote the Adoption and Meaningful Use of Health Information Technology". See, notice. Location: Room 1100, Longworth Building.

1:30 - 5:30 PM. The U.S. Patent and Trademark Office (USPTO) will hold a meeting regarding its proposed three track patent examination system. The deadline to register to attend is 5:00 PM on July 16. The deadline to submit written comments is August 20, 2010. See, notice in the Federal Register, June 4, 2010, Vol. 75, No. 107, at Pages 31763-31768. See also, story titled "USPTO Proposes Three Track Patent Examination System" in TLJ Daily E-Mail Alert No. 2,092, June 4, 2010. The USPTO will also webcast this event. See, notice. Location: USPTO, South Auditorium, Madison West, 600 Dulany Street, Alexandria, VA.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) regarding revising its Part 17 rules regarding the construction, marking, and lighting of antenna structures. The FCC adopted this NPRM on April 12, 2010, and released the text [54 pages in PDF] on April 20, 2010. It is FCC 10-53 in WT Docket No. 10-88. See, notice in the Federal Register, May 21, 2010, Vol. 75, No. 98, at Pages 28517-28540.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Public Notice [PDF] regarding Dish Network's Application for Certification as a qualified carrier pursuant to the Satellite Television Extension and Localism Act of 2010. See, Section 105 of S 3333 [LOC | WW], signed into law on May 27, 2010. See also, story titled "Obama Signs Satellite TV Bill" in TLJ Daily E-Mail Alert No. 2,089, May 28, 2010. This item is DA 10-1036 in MB Docket No. 10-124.

9:00 AM. Day two of a two day meeting of the Department of Homeland Security's (DHS) Homeland Security Science and Technology Advisory Committee (HSSTAC). Most of this meeting is closed to the public. See, notice in the Federal Register, July 13, 2010, Vol. 75, No. 133, at Page 39955. Location: 4075 Wilson Blvd., Liberty Conference Center, 3rd floor, Arlington, VA.

10:00 AM. The House Foreign Affairs Committee (HFAC) will hold a hearing titled "Protecting U.S. Intellectual Property Overseas: The Joint Strategic Plan and Beyond". The witnesses will be Victoria Espinel (U.S. Intellectual Property Enforcement Coordinator), John Morton (Director of the DHS's Immigration and Customs Enforcement), and Chris Israel. See, notice. Location: Room 2172, Rayburn Building.

10:00 AM - 3:00 PM. The Senate Banking Committee (SBC) will hold a hearing titled "Semiannual Monetary Policy Report to the Congress". The witness will be Ben Bernanke, Chairman of the Board of Governors of the Federal Reserve System. See, notice. Location: Room SD-G50, Dirksen Building.

10:00 AM. The American Association of People with Disabilities (AAPD) will host an event related to proposals to expand the Americans with Disabilities Act (ADA) with respect to new information and communications technologies. The speakers will include Eric Holder (Attorney General). Location: Room 345 (Cannon Caucus Room), Cannon Building.

12:00 NOON - 1:30 PM. The Federal Communications Commission (FCC) will hold meeting "to discuss issues related to foreign ownership of common carrier wireless licenses under section 310(b)(4) of the Communications Act". Staff from the FCC's International Bureau and Office of the General Counsel (OGC) will preside. Reporters may be barred from attending this event. The FCBA asserts that this is a FCBA event. Location: Verizon, Suite 400 West, 1300 I St., NW.

12:30 - 2:00 PM. The American Bar Association's (ABA) Section of Intellectual Property Law will host a webcast and teleconferenced event titled "Bilski vs. Kappos: When Is a ``Process´´ Patentable?". The speakers will be Erik Hawes (Morgan Lewis & Bockius), Brian Pandya (Wiley Rein), Denise DeFranco (Finnegan Henderson), Thomas Goldstein (Akin Gump), and William Teoli (Syngenta). See, notice. Prices vary. CLE credit.

1:00 PM. The House Financial Services Committee (HFSC) may hold a hearing on HR 2267 [LOC | WW], the "Internet Gambling Regulation, Consumer Protection, and Enforcement Act", a bill that would legalize, regulate, and tax certain internet gambling businesses. Location: Room 2128, Rayburn Building.

1:00 - 3:00 PM. The American Bar Association's (ABA) Section of Taxation Law will host a webcast and teleconferenced event titled "Implications of Bilski on Patenting Tax Strategies". The speakers will be Dennis Drapkin (Jones Day), Ellen Aprill (Loyola Law School), Barry Grossman (Foley & Lardner), and Matthew Young (AICPA). See, notice. Prices vary. CLE credit.

Deadline to submit requests to the Consumer Electronics Association (CEA) to speak at the convention titled "2011 International CES", to be held on January 6-9, 2011, in Las Vegas, Nevada.

9:30 AM - 4:45 PM. The DC Bar Association will host a panel discussion titled "Legal Cybersleuth’s Guide to the Internet-Full Day". The speakers will be Carole Levitt and Mark Rosch. The price to attend ranges from $169 to $229. Reporters are barred from attending most DC Bar events. This event qualifies for CLE credits. See, notice. For more information, call 202-626-3488. Location: DC Bar Conference Center, 1101 K St., NW.

12:00 NOON - 1:30 PM. The Information Technology and Innovation Foundation (ITIF) will host a panel discussion titled "Leading Innovations in Healthcare Technology". The speakers will be Robert Epstein (Medco) and Robert Atkinson (ITIF). See, notice. Location: Room 2226, Rayburn Building, Capitol Hill.

12:15 - 1:30 PM. The Federal Communications Bar Association's (FCC) Young Lawyers Committee will host a brown bag lunch. The speaker will be Phil Weiser (EOP's National Economic Council). For more information, contact Micah Caldwell at mcaldwell at fh-law dot com or Mark Brennan at  mark dot brennan at hoganlovells dot com. Location: Hogan Lovells, 555 13th St., NW.

2:00 PM. The House Judiciary Committee (HJC) will hold a hearing titled "Americans with Disabilities Act at 20 -- Celebrating Our Progress, Affirming Our Commitment". Tom Perez (Assistant Attorney General in charge of the DOJ's Civil Rights Division) will testify. The HJC will webcast this event. See, notice. Location: Room 2141, Rayburn Building.

2:30 PM. The Senate Commerce Committee (SCC) will hold an executive session. It will mark up up several bills, including S 3490 [LOC | WW], the "Spectrum Relocation and Improvement Act of 2010", S 3600 [LOC | WW], the "Fairness in Admiralty and Maritime Law Act", and S 3605 [LOC | WW], the "America COMPETES Reauthorization Act of 2010". See, notice. Location: Room 253, Russell Building.

2:30 - 4:00 PM. The Information Technology and Innovation Foundation (ITIF) will host a panel discussion titled "Open Forum on U.S. and OECD Innovation Policy". The speakers will be Andrew Wycoff (OECD), Karen Kornbluh (U.S. Ambassador to the OECD), Aneesh Chopra (EOP), and Robert Atkinson (ITIF). See, notice. Location: ITIF, Suite 610A, 1101 K St., NW.

Deadline to submit comments to the Federal Communications Commission (FCC) in response to its Third Further Notice of Proposed Rulemaking regarding adoption a new 800 MHz band plan for the U.S. Virgin Islands. The FCC adopted and released this item on April 26, 2010. It is DA 10-695 in WT Docket No. 02-55. See, notice in the Federal Register, June 22, 2010, Vol. 75, No. 119, at Pages 35363-35366.

10:00 AM. The Department of Justice (DOJ) will hold an event related to the Americans with Disabilities Act (ADA). The speakers will include Eric Holder (Attorney General) and Tom Perez (Assistant Attorney General in charge of the DOJ's Civil Rights Division). Location: DOJ main building, Great Hall, 950 Pennsylvania Ave., NW.

Deadline to submit comments to the National Telecommunications and Information Administration (NTIA) regarding a proposal to add eight questions to the Census Bureau's October 2010 Current Population Survey (CPS) to gather data on broadband usage. See, notice in the Federal Register, May 24, 2010, Vol. 75, No. 99, at Pages 28781-28782.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to the FCC's Public Notice [3 pages in PDF] regarding Purple Communication's petition for clarification or waiver regarding implementation of a call forwarding service for internet based Telecommunications Relay Service users. This item is DA 10-1253 in CG Docket No. 10-51.

8:00 AM - 5:30 PM. Day one of a two day joint meeting of the Federal Communications Commission (FCC) and Food and Drug Administration (FDA) titled "Enabling the Convergence of Communications and Medical Systems: Ways to Update Regulatory and Information Processes". See, FCC Public Notice (DA 10-1071 in ET Docket No. 10-120). The deadline to register to attend is 5:00 PM on July 19, 2010. The deadline to submit written comments is June 25, 2010. Location: FCC, Commission Meeting Room, 445 12th St., SW.

Deadline to submit comments to the Federal Trade Commission (FTC) regarding its proposed consent agreement with Twitter. See, notice in the Federal Register, June 30, 2010, Vol. 75, No. 125, at Pages 37806-37808.

Deadline to submit reply comments to the Department of Energy (DOE) regarding the communications requirements of utilities, including, but not limited to the requirements of the Smart Grid. See, notice in the Federal Register, June 14, 2010, Vol. 75, No. 113, at Pages 33611-33612.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rule Making (NPRM) regarding unlicensed personal communications services devices in the 1920-1930 MHz band. The FCC adopted this NPRM on May 4, 2010, and released the text [19 pages in PDF] on May 6, 2010. It is FCC 10-77 in ET Docket No. 10-97. See, notice in the Federal Register, June 11, 2010, Vol. 75, No. 112, at Pages 33220-33226.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Notice of Inquiry (NOI) regarding regulation of ownership of media companies. The FCC adopted and released this item on May 25, 2010. It is FCC 10-92 in MB Docket No. 09-182. See, FCC June 11, 2010, Public Notice (DA 10-1066), and notice in the Federal Register, June 11, 2010, Vol. 75, No. 112, at Pages 33227-33237. See also, story titled "FCC Adopts Broadcast Ownership NOI" in TLJ Daily E-Mail Alert No. 2,087, May 26, 2010.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) regarding expanding the range of products and services covered by the FCC's e-rate subsidy program. The FCC adopted this NPRM on December 1, 2009, and released the text [43 pages in PDF] on December 2, 2010. It is FCC 09-105 in CC Docket No. 02-6. See, notice in the Federal Register, June 9, 2010, Vol. 75, No. 110, at Pages 32692-32699. See also, story titled "FCC Expands and Seeks Comments on List of Items Eligible for E-Rate Subsidies" in TLJ Daily E-Mail Alert No. 2,019, December 2, 2009.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) regarding the FCC's e-rate tax and subsidy program. The FCC adopted and released this NPRM on May 20, 2010. It is FCC 10-83 in CC Docket No. 02-6 and GN Docket No. 09-51. See, notice in the Federal Register: June 9, 2010, Vol. 75, No. 110, at Pages 32699-32719. See also, story titled "FCC Adopts Another E-Rate NPRM" in TLJ Daily E-Mail Alert No. 2,087, May 26, 2010.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Notice of Inquiry (NOI) [12 pages in PDF] regarding the survivability in broadband communications networks and ways to reduce network vulnerability to failures in network equipment or severe overload conditions, such as would occur in natural disasters and pandemics. The FCC adopted and released this item on April 21, 2010. It is FCC 10-62 in PS Docket No. 10-92. See, notice in the Federal Register, May 11, 2010, Vol. 75, No. 90, at Pages 26180-26183.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Public Notice (PN) regarding Global-Tel Corporation's March 4, 2010, Petition for Expedited Clarification and Declaratory Ruling regarding application of the Telephone Consumer Protection Act (TCPA). This PN is DA 10-997 in CG Docket No. 02-278. See, notice in the Federal Register, June 30, 2010, Vol. 75, No. 125, at Pages 37803-37804.

EXTENDED TO AUGUST 2. Deadline to submit comments to the U.S. Patent and Trademark Office (USPTO) regarding its draft [76 pages in PDF] of its "FY 2010-2015 Strategic Plan". See, notice in the Federal Register, July 9, 2010, Vol. 75, No. 131, at Pages 39493-39494. See also, story titled "USPTO Releases Draft Five Year Plan" in TLJ Daily E-Mail Alert No. 2,102, July 12, 2010. See, notice of extention.

7/19. Samuel Bagenstos, the Department of Justice's (DOJ) Civil Rights Division's (CRD) Principal Deputy (PD) Assistant Attorney General (AAG), testified before the House Judiciary Committee's (HJC) Subcommittee on the Constitution, Civil Rights, and Civil Liberties on April 22, 2010.

He stated then that the CRD intends to write regulations that will expand the reach of Title III of the Americans with Disabilities Act (ADA) to regulate the internet and new technologies.

Thomas Perez, the Assistant Attorney General (AAG) in charge of the CRD, made a similar statement on July 19, 2010. See, related story in this issue titled "Perez Addresses ADA and New Technologies".

The DOJ has not yet promulgated any such regulations. It has not issued a notice of proposed rulemaking (NPRM). It has not issued a request for comments, or even a concept release. It has been nearly three months.

Bagenstos testified on April 22 regarding Title III of the ADA. Its plain language limits its reach to the physical facilities of enumerated public accommodations. It is what mandates curb cuts, ramps, wide doors, elevators, and others architectural changes to physical places.

But, the CRD now asserts that Title III of the ADA applies to the internet, web sites, software, electronic devices, and other information technologies, even if there is no physical place involved.

Bagenstos added on April 22 the the CRD seeks no legislation; rather, it intends to write rules. Moreover, there is no pending legislation to amend Title III of the ADA.

There is however pending legislation to amend Title IV of the ADA, which currently regulates telecommunications services for hearing and speech impaired persons. It is codified at 47 U.S.C. § 225. This section provides, in part, that the Federal Communications Commission (FCC) "shall ensure that interstate and intrastate telecommunications relay services are available, to the extent possible and in the most efficient manner, to hearing-impaired and speech-impaired individuals in the United States". These bills, S 3304 [LOC | WW] and HR 3101 [LOC | WW], would also expand other FCC authorities related to disability access.

While the CRD not publicly announced an action regarding the writing or rules, it should be noted that it will be involved in several public events this week. Any of these could be used to make an announcement regarding Title III technology rules and/or enforcement.

On Wednesday, July 21, at 10:00 AM, the American Association of People with Disabilities (AAPD) will host an event related to proposals to expand the ADA with respect to new information and communications technologies. The speakers will include Attorney General Eric Holder. This event will be in Room 345 (Cannon Caucus Room) of the Cannon House Office Building.

On Thursday, July 22, at 2:00 PM, the House Judiciary Committee (HJC) will hold a hearing titled "Americans with Disabilities Act at 20 -- Celebrating Our Progress, Affirming Our Commitment". Thomas Perez will testify.

On Friday, July 23, at 10:00 AM, the DOJ will hold an event related to the ADA. The speakers will include Eric Holder and Perez. This will be in the Great Hall of the DOJ Main.

Also, on Monday, July 19, at 11:00 AM, the Federal Communications Commission (FCC) and the Department of Commerce (DOC) will host an event titled "Technology Showcase". The agenda includes speeches and the showing of a video. This event pertains to the impact of technology on people with disabilities. However, to the extent that the FCC possesses authority under Title IV, but not Title III, of the ADA, this may be an unlikely event for the DOJ to make an announcement related to Title III. This event will be in the Main Foyer of DOC Main.

5/19. Thomas Perez, the Assistant Attorney General (AAG) in charge of the Department of Justice's (DOJ) Civil Rights Division (CRD) gave a speech on July 19, 2010, in Washington DC in which he stated that "We intend to issue regulations under our Title III" of the Americans with Disabilities Act (ADA), to require that new information and communications technologies be accessible to people with disabilities.

He said that "accessible technology is another priority as we enter the third decade of ADA enforcement. In the 21st century, technology drives so much of our work and our lives. Technology has revolutionized our economy and culture. It has made obtaining information, entertainment, education and goods easier and more efficient. Technology has been in many circumstances, and should be in all circumstances, an ally for people with disabilities."

But, said Perez (at right), "many of these technologies, from Web sites to cell phones, from ticket kiosks to TV set-top devices, are either in whole or in part inaccessible to persons who are blind and other people with disabilities."

He continued that "We know that as much as technology can enhance the lives of people with disabilities, inaccessible technologies can pose significant challenges to those same individuals, and we must remain vigilant to ensure new technologies don’t leave individuals with disabilities in their wake."

He said that "We acted swiftly on the complaints about the use of the Amazon Kindle at universities, and we reached agreements with five major universities: Princeton; the University of Arizona; Pace; Case Western; and Reed College. Those institutions have agreed not to use inaccessible electronic readers, and we will continue to make sure other institutions nationwide are aware of their accessibility obligations."

See, story titled "DOJ CRD Regulates eBook Reader Design" in TLJ Daily E-Mail Alert No. 2,080, April 26, 2010.

"And though we have seen some voluntary efforts by companies once the matter is brought to their attention, far too many companies choose to forgo making their products and services accessible to all consumers."

He concluded, "Let me be clear. It is and has been the position of the Department of Justice since the late 1990s that Title III of the ADA applies to Web sites. We intend to issue regulations under our Title III authority in this regard to help companies comply with their obligations to provide equal access."

Actually, the CRD has a history of being evasive, secretive, and inconsistent. It made an apparently clear statement in 1996. The then AAG in charge of the CRD, Deval Patrick, wrote a letter on September 9, 1996 to Sen. Tom Harkin (D-IA) in which he stated that "The Americans with Disabilities Act (ADA) requires ... places of public accommodation to furnish appropriate auxiliary aids and services where necessary to ensure effective communication with individuals with disabilities ... Covered entities under the ADA are required to provide effective communication, regardless of whether they generally communicate through print media, audio media, or computerized media such as the Internet. Covered entities that use the Internet for communications regarding their programs, goods, or services must be prepared to offer those communications through accessible means as well."

However, that was a letter to a Senator, and not binding regulations, or enforcement actions. Moreover, the CRD did not follow through. In retrospect, it bore many attributes of empty election year political promise. Perez may once again be engaging in election year politics.

Also, the CRD's actions with respect to Amazon's Kindle were half hearted. The CRD took no action against Amazon. Had it done so, and Amazon had sought judicial review, the court would very likely have held that the CRD lacked authority under Title III to regulate Amazon. Rather, the CRD proceeded against universities that were minor consumers of the Kindle, and had little incentive to contest. They all entered into settlements that imposed no fines or penalties.

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