12/15. President Obama signed S 2847 [LOC | WW], the "Commercial Advertisement Loudness Mitigation Act" or "CALM Act". See, White House news office release.

The House passed this bill on December 2, 2010. See, story titled "House Passes CALM Act" in TLJ Daily E-Mail Alert No. 2,167, December 3, 2010. The Senate passed this bill on September 29, 2010. See, story titled "Senate Passes Bill to Regulate Volume of TV Commercials" in TLJ Daily E-Mail Alert No. 2,137, October 1, 2010.

Rep. Anna Eshoo (D-CA), the sponsor of the House version of the bill, stated in a release that "With the signing of the CALM Act, the top consumer complaint to the Federal Communications Commission for over a half century is now addressed. Households across the country will now get the relief they deserve from the annoyance of blaringly loud television commercials. Consumers will no longer need to dive for the ‘mute’ button during commercial breaks."

Federal Communications Commission (FCC) Chairman Julius Genachowski stated in a release that "The CALM Act, a pro-consumer measure signed into law yesterday by President Obama, will help lower the volume on TV commercials. ... The FCC will now focus on implementing the law to give consumers back the volume control on their TVs."

See also, statement by FCC Commissioner Michael Copps.

This bill requires the FCC to adopt a rule regulating the audio loudness of commercials of TV broadcasters, cable operators, and any other multichannel video programming distributor (MVPD). It also requires he FCC to incorporate by reference the standards set by the Advanced Television Systems Committee (ATSC).

The bill provides that the FCC shall write a rule within one year "that is limited to incorporating by reference and making mandatory (subject to any waivers the Commission may grant) the `Recommended Practice: Techniques for Establishing and Maintaining Audio Loudness for Digital Television' (A/85), and any successor thereto, approved by the Advanced Television Systems Committee, only insofar as such recommended practice concerns the transmission of commercial advertisements by a television broadcast station, cable operator, or other multichannel video programming distributor." (Parentheses in original.)

12/16. Sen. Kay Hutchison (R-TX) filed an amendment to HR 3082 [LOC | WW], an FY 2001 continuing appropriations bill, that would have the effect of blocking FCC from adopting or implementing FCC Chairman Genachowski's BIAS rules, which the FCC is scheduled to adopt on December 21, 2010.

Federal Communications Commission (FCC) Chairman Julilus Genachowski has announced and described, but not released, the text of rules that would regulate broadband internet access service (BIAS).

The amendment provides that "None of the funds appropriated by this Act may be used by the Federal Communications Commission to adopt or implement, or otherwise bring or litigate any claim or otherwise intervene in, join, participate, or
support any claim in any Federal or State court relating to any -- (1) open Internet-based rules, protocols, or
standards; or (2) rules, protocols, or standards regulating the behavior of broadband Internet access service providers with respect to discrimination of broadband traffic, network management practices, managed services, specialized services, or paid prioritization."

She stated in an accompanying release that "The FCC chairman's attempt to impose new government regulations on the Internet is unnecessary government overreach that will stifle future innovation".

The original cosponsors of this amendment are Sen. Roger Wicker (R-MS), Sen. John Ensign (R-NV), Sen. Johnny Isakson (R-GA), Sen. John Thune (R-SD), Sen. Jim DeMint (R-SC), and Sen. Jon Cornyn (R-TX).

12/16. Rep. Fred Upton (R-MI), who will be Chairman of the House Commerce Committee's (HCC) in the 112th Congress, announced that Rep. Greg Walden (R-OR) will be the Chairman of the HCC's Subcommittee on Communications and Technology (SCT), and that Rep. Lee Terry (R-NE) will be the Vice-Chairman.

Rep. Upton dropped the word "Internet" from the name of the Subcommittee.

Rep. Rick Boucher (D-VA) is the outgoing Chairman of the Subcommittee. He lost his re-election bid on November 2.

Rep. Terry stated in his web site that "Net neutrality, universal service reform and cyber security are extremely important issues that this subcommittee will be tackling in the coming months and I can’t wait to get started."

Rep. Walden has represented the 2nd District of Oregon since his first election in 1998. He was previously a radio broadcaster.

Rep. Terry and Rep. Boucher have long collaborated on efforts to reform the Federal Communications Commission's (FCC) universal service tax and subsidy programs. On July 22, 2010, the two introduced of HR 5828 [LOC | WW | PDF], the "Universal Service Reform Act of 2010". See, story titled "Rep. Boucher and Rep. Terry Introduce Universal Service Reform Bill" in TLJ Daily E-Mail Alert No. 2,110, July 21, 2010.

If the FCC and HCC conclude their time and resource consuming efforts regarding regulation of broadband internet access service (BIAS), they might focus on other pressing issues, including universal service reform.

Walter McCormick, head of the US Telecom, praised the selection of Rep. Walden in a release. See, also praise from Gordon Smith, head of the National Association of Broadcasters (NAB). Smith and Walden are both Oregonians.

Rep. Upton also announced that Rep. Joe Barton (R-TX) will be the HCC's Chairman Emeritus and that Rep. Sue Myrick (R-NC) will be the HCC's Vice Chair.

12/16. Rep. Fred Upton (R-MI), who will be Chairman of the House Commerce Committee's (HCC) in the 112th Congress, announced that Rep. Mary Mack (R-CA), will be the Chairman of the HCC's Subcommittee on Commerce, Manufacturing and Trade, and that Rep. Marsha Blackburn (R-TN) will be the Vice-Chairman.

Rep. Upton dropped the words "Consumer Protection" from, and added "Manufacturing" to, the name of the Subcommittee. This subcommittee handles a wide range of matters, including online privacy.

Rep. Mack (at right) stated in a release that "I will work with Chairman Upton and my colleagues towards an era of less government and more economic certainty -- fostering growth for the American economy."

She also stated that she "will be on the frontlines of identifying wasteful programs, burdensome regulations and targeting areas to immediately cut federal spending at places like the Department of Commerce and Federal Trade Commission".

12/16. Rep. Fred Upton (R-MI), who will be Chairman of the House Commerce Committee's (HCC) in the 112th Congress, announced that Rep. Cliff Stearns (R-FL) will be the Chairman of the HCC Subcommittee on Oversight and Investigations (SOI) in the 112th Congress.

Rep. Stearns stated in a release that "In a republic such as ours, oversight is imperative in safeguarding the freedoms we enjoy and upholding the principles of limited government. Our founding Fathers were explicit in empowering the House of Representatives to provide a check on the powers of the Executive Branch. Under the current majority, little has been done in this area. Now, with a new majority, it is time for a new and fundamentally different approach in demanding accountability."

One line of investigation that Rep. Stearns may pursue is the ongoing waste, fraud and abuse in the Federal Communications Commission's (FCC) e-rate tax and subsidy program.

12/16. President Obama announced his intent to nominate James Dempsey and Elisebeth Cook to be members of the Privacy and Civil Liberties Oversight Board (PCLOB). See, White House news office release and release.

Dempsey has long been associated with the Center for Democracy and Technology (CDT).

Cook works in the Chicago office of the law firm of Freeborn & Peters. She is a former Republican counsel to the Senate Judiciary Committee (SJC) and a former Assistant Attorney General (AAG) in charge of the Office of Legal Policy (OLP) in the Bush administration. She was also a law clerk for Judge Laurence Silberman (U.S. Court of Appeals (DCCir) and Foreign Intelligence Surveillance Court of Review).

The PCLOB, were it to be in operation, would be the only federal government wide body that reviews government policies, regulations, procedures and information practices to assure that privacy and civil liberties are appropriately considered. However, the PCLOB has been inactive for several years, for lack of any members.

The original PCLOB was created by Section 1061(b) of the Intelligence Reform and Terrorism Prevention Act of 2004. This statute made the PCLOB a part of the Executive Office of the President (EOP). The members of the original PCLOB were Carol Dinkins (Vinson & Elkins), Alan Charles Raul (Sidley Austin), Ted Olson (Gibson Dunn), Francis Taylor and Lanny Davis. That Board hired staff, conducted investigations, and wrote a report. See, story titled "President's Civil Liberties Oversight Board Releases Annual Report" in TLJ Daily E-Mail Alert No. 1,572, May 1, 2007.

Then, the 110th Congress passed legislation that had the effect of inactivating the PCLOB. Section 801 of HR 1 [LOC | WW], the "Implementing Recommendations of the 9/11 Commission Act of 2007" reconstituted the PCLOB. President Bush signed this bill into law on August 3, 2007. It makes the PCLOB "an agency" within the meaning of 5 U.S.C. § 551, and further provides the PCLOB "shall be composed of a full-time chairman and 4 additional members, who shall be appointed by the President, by and with the advice and consent of the Senate."

President Bush nominated persons, including James Dempsey, but the Senate did not act on those nominations. See, stories titled "Bush Nominates Members of New Privacy and Civil Liberties Oversight Board" in TLJ Daily E-Mail Alert No. 1,724, February 27, 2008, and "Bush to Nominate Dempsey for Privacy and Civil Liberties Oversight Board" in TLJ Daily E-Mail Alert No. 1,815, August 19, 2008.

12/16. President Obama announced his intent to nominate Kevin Kennedy to be a member of the National Security Telecommunications Advisory Committee. See, White House news office release. He is P/CEO of Avaya, Inc. He is also a former P/CEO of JDS Uniphase Corporation and a former COO of Openwave Systems, Inc. And before that, he worked for AT&T Bell Laboratories.

12/16. The National Cable & Telecommunications Association (NCTA) announced that it has retained Korn Ferry International to conduct a search for a successor to Kyle McSlarrow as head of the NCTA. See, NCTA release and story titled "McSlarrow to Leave NCTA" TLJ Daily E-Mail Alert No. 2,160, November 19, 2010.

12/15. Skip Pizzi joined the National Association of Broadcasters (NAB) as Director, Digital Strategies. He is a former technology editor at Radio Ink magazine. See, NAB release.

12/16. The Department of Commerce (DOC) released a paper [88 pages in PDF] titled "Commercial Data Privacy and Innovation in the Internet Economy: A Dynamic Policy Framework".

This paper addresses and offers recommendations, but primarily with respect to private sector data practices. It contains few recommendations for protecting individuals' privacy interests in the context of government activities and operations.

However, it recommends that "The Administration should review the Electronic Communications Privacy Act (ECPA), with a view to addressing privacy protection in cloud computing and location-based services. A goal of this effort should be to ensure that, as technology and market conditions change, ECPA continues to appropriately protect individuals’ expectations of privacy and effectively punish unlawful access to and disclosure of consumer data." (See, paper at pages 63-66.)

It also recommends that the federal government "recognize" a FIPPS. "To provide consistent, comprehensible data privacy protection in new and established commercial contexts, we recommend that the United States Government recognize a full set of Fair Information Practice Principles (FIPPs) as a foundation for commercial data privacy."

It recommends that the federal government "Encourage the development of voluntary, enforceable privacy codes of conduct in specific industries through the collaborative efforts of multi-stakeholder groups, the Federal Trade Commission, and a Privacy Policy Office within the Department of Commerce."

There is not now a DOC Privacy Policy Office (PPO). Hence, the paper recommends that it be created.

The paper recommends that the federal government "should work with our allies and trading partners to promote low-friction, cross-border data flow through increased global interoperability of privacy frameworks."

It also recommends that "consideration of a Federal commercial data security breach notification (SBN) law that sets national standards, addresses how to reconcile inconsistent State laws, and authorizes enforcement by State authorities."

This paper does not recommend federal preemption state data breach laws, or any other state privacy laws. However, it states this. "Any new Federal privacy framework should seek to balance the desire to create uniformity and predictability across State jurisdictions with the desire to permit States the freedom to protect consumers and to regulate new concerns that arise from emerging technologies, should those developments create the need for additional protection under Federal law."

It was written by the DOC's Internet Policy Task Force.

The DOC also released a notice, to be published in the Federal Register, that requests comments by January 28, 2011.

Gary Locke, the Secretary of Commerce, stated in a release that "America needs a robust privacy framework that preserves consumer trust in the evolving Internet economy while ensuring the Web remains a platform for innovation, jobs, and economic growth. Self-regulation without stronger enforcement is not enough. Consumers must trust the Internet in order for businesses to succeed online".

Jonathan Liebowitz, Chairman of the Federal Trade Commission (FTC), stated in a release that this paper "is a welcome addition to the ongoing dialogue about protecting consumers' privacy. It places special emphasis on policies that will preserve the viability of the Internet as it evolves through innovation, transforms the marketplace, and spurs economic growth. We think it will make a significant contribution to the growing and critical debate about how best to protect the privacy of American consumers."

See also, praise from Microsoft's General Counsel Brad Smith, praise from Google's Director of Public Policy Pablo Chavez, and statement of AT&T's Ellen Blacker.

The House will meet at 9:00 AM for legislative business. The House hypothetically could consider HR 3082 [LOC | WW], an omnibus appropriations bill, with technology related provisions.

The Senate will meet at 9:30 AM. The Senate hypothetically could consider HR 3082 [LOC | WW], an omnibus appropriations bill, with technology related provisions.

10:00 AM. Deadline for foreign governments to submit comments to the Office of the U.S. Trade Representative (OUSTR) regarding its Special 301 out of cycle review of the Philippines and Thailand. These reviews pertain to identifying countries that deny adequate and effective protection of intellectual property rights (IPR) or deny fair and equitable market access to U.S. persons who rely on intellectual property protection. See, notice in the Federal Register, November 12, 2010, Vol. 75, No. 218, at Pages 69519-69520.

11:00 AM. The Broadcasting Board of Governors will meet. See, notice in the Federal Register, December 13, 2010, Vol. 75, No. 238, at Page 77613. Location: Cohen Building, Room 3321, 330 Independence Ave., SW.

12:00 NOON. Deadline to submit initial comments to the Office of the U.S. Trade Representative (OUSTR) regarding its review of the operation, effectiveness, and implementation of and compliance with various telecommunications agreements, including the World Trade Organization (WTO) General Agreement on Trade in Services. See, notice in the Federal Register, November 18, 2010, Vol. 75, No. 222, at Pages 70770-70771.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Further Notice of Proposed Rulemaking (FNPRM) regarding the appropriate date for the termination of analog operations in the low power television and Class A television services. The FCC adopted and released this item on September 17, 2010. This item is FCC 10-172 in MB Docket No. 03-185. See, notice in the Federal Register, October 18, 2010, Vol. 75, No. 200, at Pages 63766-63773.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) regarding assignment of telephone numbers associated with internet based Telecommunications Relay Service (iTRS), Video Relay Service (VRS) and IP Relay. The FCC adopted this item on September 16, 2010, and released the text on September 17. It is FCC 10-161 in CG Docket No. 03-123, WC Docket No. 05-196, and WC Docket No. 10-191. See, notice in the Federal Register, November 2, 2010, Vol. 75, No. 211, at Pages 67333-67341.

Rep. John Boehner's (R-OH) office announced on December 14 that "Members are advised it is possible the House could be in session and voting into the weekend".

EXTENDED TO JANUARY 31. Deadline to submit initial comments to the Library of Congress's (LOC) Copyright Office (CO) in response to its Notice of Inquiry (NOI) regarding federal coverage of sound recordings fixed before February 15, 1972. See, notice in the Federal Register, November 3, 2010, Vol. 75, No. 212, at Pages 67777-67781. This proceeding is LOC Docket No. 2010-4. See also, story titled "Library of Congress Issues NOI on Extending Copyright Act to Pre 1972 Sound Recordings" in TLJ Daily E-Mail Alert No. 2,150, November 8, 2010. See also, extension notice in the Federal Register, December 1, 2010, Vol. 75, No. 230, at Pages 74749-74750.

10:30 AM. The Federal Communications Commission (FCC) will hold an event titled "open meeting". The agenda [PDF] includes adoption of two items: broadband internet access service (BIAS) rules and a 911 notice of inquiry (NOI). See, story titled "FCC Releases Agenda for December 21 Meeting" in TLJ Daily E-Mail Alert No. 2,179, December 15, 2010. Location: FCC, Commission Meeting Room, 445 12th St., SW.

12:00 NOON - 2:00 PM. The DC Bar Association will host an event titled "False Patent Marking: Now What?". The speakers will be Elizabeth Winston (Catholic University law school), Robert Shaffer (Finnegan), Maureen Browne (Covington & Burling). See, 35 U.S.C. § 292, regarding false marking. See also, the December 28, 2009, opinion [16 pages in PDF] of the U.S. Court of Appeals (FedCir) in The Forest Group, Inc. v. Bon Tool Company construing Section 292. See also, HR 4954 [LOC | WW]], an untitled bill, and HR 6352 [LOC | WW], the "Patent Lawsuit Reform Act of 2010"; both would amend Section 292; the House has passed neither. And see, story titled "Representatives Introduce Bill to Amend Patent Act Regarding Remedies for False Markings" in TLJ Daily E-Mail Alert No. 2,067, March 30, 2010. The price to attend ranges from $40 to $55. For more information, contact 202-626-3463. See, notice. Location: DC Bar Conference Center, B-1 Level, 1250 H St., NW.

No events listed.

No events listed.

Christmas Day (observed). This is a federal holiday. See, Office of Personnel Management's (OPM) web page titled "2010 Federal Holidays".

12/16. The U.S. Court of Appeals (6thCir) issued an opinion in US v. Almany in which Judge Boyce Martin and Judge Gilbert Merritt wrote a scathing mockery of the Supreme Court's November 15, 2010, opinion in US v. Abbott. The two Judges used language that would have been unimaginable had they not actually written it into a published opinion.

These 6th Circuit Judges not only made clear their firm opinion that the Supreme Court got it wrong, and that the Supreme Court gave a statute "a meaning exactly opposite to the ordinary meaning of the words". They compared the Justices of the Supreme Court to 13th Century judges, whose mistake of rises to the level of "an ex post facto problem".

Moreover, this transgression transcends partisan politics. Judges Martin and Merritt were appointed by former President Carter, a Democrat. Justice Ginsburg, who was appointed by former President Clinton, another Democrat, wrote for a unanimous Supreme Court in Abbott.

The issue in Almany and Abbott is interpretation of a criminal sentencing statute. It is not technology related. However, the same Supreme Court may soon review technology related opinions of the 6th Circuit.

Consider the landmark December 14, 2010, opinion [98 pages in PDF] of the 6th Circuit in US v. Warshak, which held that a subscriber enjoys a reasonable expectation of privacy in the contents of emails that are stored with, or sent or received through, a commercial ISP; the government may not compel a commercial ISP to turn over the contents of a subscriber’s emails without first obtaining a warrant based on probable cause.

See also, story titled "6th Circuit Rules There Is A Reasonable Expectation of Privacy In Stored E-Mail" in TLJ Daily E-Mail Alert No. 2,179, December 15, 2010.

It might be noted that neither Martin nor Merritt sat on the three Judge panel that issued its opinion earlier this week in Warshak. But actually, Judge Martin is at the center of this matter. The December 14 opinion concludes Steven Warshak's second trip to the 6th Circuit with his 4th Amendment argument.

The first time, Judge Martin wrote a very similar opinion [20 pages in PDF], issued on June 18, 2007, holding that there is a reasonable expectation of privacy in the contents of stored e-mail. See, story titled "6th Circuit Holds That People Have a Reasonable Expectation of Privacy in E-Mail Stored With, or Sent or Received Through, an ISP" in TLJ Daily E-Mail Alert No. 1,597, June 19, 2007.

An en banc panel of the 6th Circuit issued its opinion [15 pages in PDF] on July 11, 2008, vacating the earlier opinion (of Judge Martin) on ripeness grounds. Judge Martin wrote a strenuous dissent to that en banc opinion. See, story titled "6th Circuit En Banc Panel Holds Warshak Case Lacks Ripeness" in TLJ Daily E-Mail Alert No. 1,794, July 15, 2008. (Judge Merritt is a senior status Judge, and did not participate in this en banc review.)

The December 14, 2010, opinion, issued after Warshak's criminal conviction, when the case was indisputably ripe, essentially reinstated Judge Martin's original reasoning and conclusion.

Thus, if the Department of Justice (DOJ) ever turns to the Supreme Court for reversal in Warshak, or if the Supreme Court considers a similar issue arising in any Circuit, the Justices will remember that they are reviewing the conclusions of a Judge who just called them medieval in a published opinion.

12/15. Google released a statement regarding its acquisitions and antitrust regulation. The author is Google's Deputy General Counsel, Don Harrison.

This Google statement responds to an article by Steven Pearlstein titled "Time to loosen Google's grip?" published by the Washington Post on December 15, 2010.

Harrison wrote that "Courts and regulators recognize efficiencies in mergers into new spaces. They also have approved many deals where the leader in one category acquired the leader in a separate category. That includes Oracle's acquisition of Siebel, Amazon's acquisition of Audible, and Adobe’s acquisition of Macromedia. Each company was #1 in its respective field, and each merger was approved."

Harrison also wrote that "Sometimes it’s possible to develop a new product in-house; other times a company decides it can bring a new product to market faster by acquiring another company. Microsoft acquired Powerset in 2008 and then incorporated its search technology into Bing. Amazon acquired Zappos in 2009 instead of developing its own shoe-selling site."

"All mature companies regularly acquire companies to make big bets on new spaces." Harrison added, "our acquisitions have created great things for consumers."

He also argued that "For startups, getting acquired is often the path to success (especially given the difficult IPO market), so stopping large companies from making acquisitions would only deprive startups of another potential bidder and investors of a potential return on their invested capital. You can’t be both pro-economic growth and anti-acquisitions." (Parentheses in original.)

Pearlstein wrote that "The question now is how much bigger and more dominant we want this innovative and ambitious company to become. Google has already achieved a near-monopoly in Web search and search advertising, and has cleverly used that monopoly and the profits it generates to achieve dominant positions in adjacent or complementary markets. Success in those other markets, in turn, further strengthens Google's Web search dominance and reduces the chance that any other competitor will be able to successfully challenge it."

Also, Tom Lenard, an economist and head of the Technology Policy Institute (TPI), stated in a release that "Pearlstein's approach is at odds with antitrust economics and antitrust history and would likely harm both consumers and innovation."

Lenard also wrote that "An antitrust policy that takes the biggest players out of the market for small companies would reduce the potential returns to innovation and therefore would reduce the amount of innovation. Competition to acquire innovative new companies is a major aspect of competition that the antitrust authorities should take into account when deciding whether to challenge these acquisitions."

Lenard cited and applied a paper by Robert Crandall (an economist based at the Brookings Institution) and Charles Jackson (Adjunct Professor of Electrical Engineering at George Washington University) presented at a recent TPI conference.

That paper reviewed major antitrust cases brought by the federal government against tech companies, and concluded that "the ultimate source of major changes in the competitive landscape appears to be innovation and new technology -- technology that was apparently not unleashed by the antitrust litigation. In each case, the government did not and probably could not see how technology would develop over time. Therefore, it was difficult for the government to design remedies that would accelerate competition when this competition developed from new technologies."

See, story titled "Technology Policy Institute Event Addresses Antitrust and Tech" in TLJ Daily E-Mail Alert No. 2,070, December 6, 2010.

12/9. The Executive Office of the President's (EOP) Office of Management and Budget (OMB) released a document [40 pages in PDF] titled "25 Point Implementation Plan to Reform Federal Information Technology Management". It is attributed to Vivek Kundra, the Chief Information Officer in the EOP.

Among the items in the plan:

• Shift to a cloud first policy
• Complete detailed implementation plans to consolidate 800 data centers by 2015
• Create a government wide marketplace for data center availability

It also contains items regarding IT program management, IT procurement, and Congressional budgeting for IT

Sen. Joe Lieberman (D-CT), Chairman of the Senate Homeland Security and Governmental Affairs Committee (SHSGAC), stated in a release that this "plan should deliver valuable results. I look forward to working with the Administration to create a smarter, more efficient, more effective government."

Sen. Susan Collins (R-ME), the ranking Republican on the SHSGAC stated in a release that "I am pleased that OMB is implementing a framework and specific timeframes to improve performance of major IT investments, train career professionals, and cultivate best practices from the private-sector when we budget for, buy, and execute major IT projects in the Federal government."

She also urged enactment of S 920 [LOC | WW], the "Information Technology Investment Oversight Enhancement and Waste Prevention Act of 2009", sponsored by Sen. Tom Carper (D-DE). Sen. Collins is a cosponsor. The Senate passed this bill on May 19, 2010. The House has not passed it.

The Tech America (TA) also praised the OMB plan. See, release.

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