7/20. The House Commerce Committee's (HCC) Subcommittee on Subcommittee on Commerce, Manufacturing, and Trade (SCMT) amended and approved HR 2577 [LOC | WW | PDF], the "Secure and Fortify Electronic (SAFE) Data Act of 2011". See, HCC release.

This bill would create both a federal data security regime, and a federal data breach notification regime. A key element of both regimes is what "personal information" is subject to these regulatory regimes.

The bill gives the Federal Trade Commission (FTC) rulemaking authority, gives enforcement authority to the FTC and states, and provides for limited federal preemption of state laws.

The Subcommittee considered numerous amendments, and held roll call votes on many. Voting was partisan on all roll calls. The votes on all but two broke down along straight party lines, with Democrats backing amendments that would have increased the regulatory reach of the bill, particularly with respect to the definition of "personal information". The vote on final passage was conducted by voice. The full Committee has yet to mark up the bill. Subcommittee members suggested that there will be more changes to the bill at that time.

Both the HCC Republicans' web page, and the HCC Democrats' web page, for this mark up contains hyperlinks to amendments that were approved, rejected, or withdrawn.

For more on the bill as introduced, see stories titled "Rep. Mack Introduces SAFE Data Act" and "House Commerce Committee to Mark Up SAFE Data Act" in TLJ Daily E-Mail Alert No. 2,263, July 19, 2011.

Rep. Fred Upton (R-MI), the Chairman of the HCC, wrote in his opening statement that "H. R. 2577 is a measured response to an identified problem: data breaches of consumers’ personal information -- whether by accident or deliberate criminal activity -- can lead to identity theft, fraud, and other unlawful conduct. Consumers who have been victims of identity theft can recount the time and effort often required to stop the financial damage and re-establish their identity. It costs more than just the losses to the victim and the companies that lose billions of dollars every year: we all lose some freedom in order to protect ourselves from such criminal activity."

He added that this bill "will help mitigate the problem by requiring companies that collect and maintain our information to provide better protection of the data and notification to consumers in the event of a breach so they can protect themselves from risks that come when information is acquired by unauthorized people with criminal intentions."

Rep. Mary Mack (R-CA) (at right), the sponsor of the bill, and Chairman of the Subcommittee, presided at the mark up. Citing "massive breaches at Sony, Epsilon and Citigroup", she stated that "much more needs to be done to protect sensitive personal information". See, release.

Rep. Bobby Rush (D-IL) said that the Republicans are "saying one thing and doing another". Rep. Rush was the sponsor in the 111th Congress of HR 2221 [LOC | WW], the "Data Accountability and Trust Act", a bill similar to HR 2577. He added that the "majority is trying to ram this down the throats of the American people".

Rep. Henry Waxman (D-CA), the ranking Democrat on the HCC, said that "this bill is not very satisfactory to us".

Rep. John Dingell (D-MI), a former Chairman of the HCC, said that "we have got a bill that is not very good".

Democrats argued at the July 20 mark up for broadening the scope of the bill by revising the definition of "personal information", and bill giving the FTC authority to expand the definition under APA procedures.

The Subcommittee rejected by a vote a 9-10 an amendment that would have substituted the predecessor bill that the HCC and full House approved in the 111th Congress, HR 2221. All of the Republicans who voted, except Rep. Joe Barton (R-TX), voted no. All of the Democrats who voted voted yes.

The Subcommittee amended and approved HR 2221 on June 3, 2009. See, story titled "House Commerce Subcommittee Marks Up Data Accountability and Trust Act" in TLJ Daily E-Mail Alert No. 1,948, June 4, 2009. The HCC approved that bill on September 30, 2009. At the time, Rep. Rush was the Subcommittee Chairman, and Rep. Barton was the full Committee ranking Republican. The full House passed HR 2221 by voice vote on December 8, 2009. The Senate did not pass it.

The Subcommittee adopted an amendment offered by Rep. Marsha Blackburn (R-TN) and Rep. Pete Olson (R-TX) that imposes one limitation on FTC rulemaking authority. It provides, in effect, that in writing rules that change the definition of "personal information", the FTC must follow Magnuson Moss (MM) rulemaking procedure rather than Administrative Procedure Act (APA) procedure. See, related story in this issue titled "Magnuson Moss Versus APA Rulemakings".

The Subcommittee also adopted a minor technical amendment offered by Rep. Rush.

Data Security and Minimization. The Subcommittee also adopted an amendment offered by Rep. Cliff Stearns (R-FL) and Rep. Mike Pompeo (R-KS), that limits FTC rulemaking authority.

It provides as follows: "Insert at the end of section 2(b) the following new sentence: ``The Commission may not promulgate any regulations with regard to the establishment of such plan and procedures.´´"

Section 2 creates a federal data security regime. Subsection 2(b) sets data minimization requirements. It provides that any regulated entity "shall establish a plan and procedures for minimizing the amount of personal information maintained by such person. Such plan and procedures shall provide for the retention of such personal information only as reasonably needed for the business purposes of such person or as necessary to comply with any legal obligation."

Moreover, HR 2577 gives the FTC authority to write rules implementing sections 2 and 3. Hence, the Stearns Pompeo amendment altogether prevents the FTC from writing rules on the one topic of data minimization.

Preemption. Rep. Blackburn said at the July 20 mark up that there are two many carve outs in the preemption language of the bill, so that it lacks "teeth". However, she offered no amendment. She did say that these provisions need more work going forward.

Section 6 contains the preemption provision. It states that "This Act supersedes any provision of a statute, regulation, or rule of a State or political subdivision of a State, with respect to any entity subject to this Act, that contains -- (1) requirements for information security practices or treatment of data similar to those under section 2; or (2) requirements for notification of a breach of security similar to the notification required under section 3."

However, it then provides exceptions for "State consumer protection law", "State trespass, contract, or tort law", and "State laws to the extent that those laws relate to acts of fraud".

Private Right of Action. The bill creates no private right of action. It states, in Section 6, that "No person other than a person specified in section 4(c) may bring a civil action under the laws of any State if such action is premised in whole or in part upon the defendant violating any provision of this Act."

Section 4(c) provides for enforcement by state attorneys general. Nothing in the bill prevents state attorneys general from contracting out cases to tort lawyers operating under contingency fee contracts.

7/20. The House Commerce Committee's (HCC) Subcommittee on Commerce, Manufacturing, and Trade amended and approved HR 2577 [LOC | WW | PDF], the "Secure and Fortify Electronic (SAFE) Data Act of 2011".

This bill would create both a federal data security regime, and a federal data breach notification regime. A key component of each regime is the definition of "personal information".

Section 5 of the bill contains definitions. Subsection (7) provides the definition of "personal information". It provides that personal information means "means an individual’s first name or initial and last name, or address, or phone number, in combination with any 1 or more of the following data elements for that individual: ... Social Security number ... Driver's license number, passport number, military identification number, or other similar number issued on a government document used to verify identity ... Financial account number, or credit or debit card number, and any required security code, access code, or password that is necessary to permit access to an individual's financial account."

This definition is the same as the definition in the related bill passed by the HCC and the full House in the 111th Congress, HR 2221 [LOC | WW], the "Data Accountability and Trust Act". Rep. Bobby Rush (D-IL) sponsored that bill. Rep. Henry Waxman (D-CA) was the full Committee Chairman at the time.

Nevertheless, Subcommittee Democrats argued long and vociferously for greatly expanding this definition. The Subcommittee rejected all of these amendments in partisan votes.

The Subcommittee rejected an amendment offered by Rep. Waxman that would have expanded the definition to include "personal electronic communications and personal photographs and video stored online, and other similar personal content".

Rep. Adam Kinzinger (D-IL) withdrew an amendment that would have expanded the definition to include "email address", "user name", and "source code that could be used to generate such access code or password".

The Subcommittee rejected an amendment offered by Rep. GK Butterfield (D-NC), the ranking Democrat on the Subcommittee, that would have expanded the definition to include "location of a child under the age of 13, and other information related to children under the age of that the Commission determines should be included in the definition of personal information".

The Subcommittee rejected an amendment offered by Rep. Jan Schakowsky (D-IL), that would have expanded the definition to include "records of an individual's purchases of over-the-counter drugs and devices, including pregnancy tests, and other health-related information that the Commission determines should be included in the definition of personal information".

The Subcommittee rejected an amendment offered by Rep. Waxman, that would have expanded the definition to include "records of online searches for health- or disease-related information by individuals, and other health-related information that the Commission determines should be included in the definition of personal information".

The Subcommittee rejected a amendment offered by Rep. Butterfield that would have expanded the definition to include "records of an individual’s purchases and rentals of books and videos, and other records of consumer purchases or rentals that the Commission determines should be included in the definition of personal information".

7/20. The House Commerce Committee's (HCC) Subcommittee on Commerce, Manufacturing, and Trade amended and approved HR 2577 [LOC | WW | PDF], the "Secure and Fortify Electronic (SAFE) Data Act of 2011".

It approved an amendment offered by Rep. Pete Olson (R-TX) and Rep. Marsha Blackburn (R-TN) that requires that if the Federal Trade Commission (FTC) amends the definition of "personal information", it must use Magnuson Moss (MM), rather than Administrative Procedure Act (APA), rulemaking procedure.

This amendment states as follows: "Page 28, beginning on line 20, strike ``promulgated under section 553 of title 5, United States Code´´."

This amends Section 5 of the bill, which contains definitions. Subsection (7) provides the definition of "personal information". Then, subsection (7) of the bill, as introduced, provides that the FTC "may, by rule promulgated under section 553 of title 5, United States Code, modify the definition of ``personal information´´ ... for the purpose of section 2 ... as a result of changes in technology or practices", or "for the purpose of section 3". Section 2 creates a data security regime. Section 3 creates a data breach notification regime.

That is, the Blackburn Olson amendment does not remove FTC authority to write rules that modify the definition of "personal information". It only removes authority to write such rules pursuant to 5 U.S.C. § 553. The FTC would still have authority to amend the definition with MM procedure.

Introduction to MM and APA Procedures. Section 553 is part of the Administrative Procedure Act (APA). It sets very minimal requirement for federal agencies in conducting rulemaking proceedings. It facilitates rulemakings that lack transparency and procedural fairness to affected parties, and allows the adoption of rules that lack evidentiary support or a rational policy basis.

It is the procedure that the Federal Communications Commission (FCC) follows in writing its rules. It is also the procedure that the FTC follows in most rulemakings. When the Congress passes a bill on a specific topic, such as children's privacy, it also gives the FTC authority to write rules, on the one narrow topic, with APA procedure.  Indeed, HR 2577 provides such exemptions for both section 2 and section 3 rulemaking.

However, on many other topics, if the FTC wishes to write rules, it must follow the procedure set forth in Section 18 of the FTC Act, which is codified at 15 U.S.C. § 57a. This process is often referred to as Magnusson Moss (MM), for the sponsors of an act passed in 1975 that imposed this procedure on the FTC. Section 18 of the FTC Act affords procedural fairness to affected parties. See, related story in this issue titled "What Magnuson Moss Requires of the FTC".

Hence, HR 2577, as amended by the Blackburn Olson amendment, allows the FTC to write implementing rules, both as to data security and data breach notification, under the APA process, with the one small exception of rules that modify the definition of "personal information", for which the FTC must follow MM.

As a practical matter, many FTC officials detest MM procedure, and often forego writing rules pursuant to MM, even though they could. Thus, if this bill were to be enacted into law, with the Blackburn Olson amendment, the FTC would be unlikely to write rules changing the definition of "personal information".

There was a major effort in the 111th Congress to remove many of the FTC's MM procedural requirements through a larger financial services regulation bill. The legislative language came from the HCC, but was in a House Financial Services Committee (HFSC) bill, passed by the House. Some Senators balked, and the MM modification language was not in the bill enacted by the Congress.

See, Section 4901 of HR 4173 [LOC | WW], the "Wall Street Reform and Consumer Protection Act of 2009", as passed by the House on December 11, 2009. The vote was 223-202. See, Roll Call No. 968. No Republicans voted for that bill. Ultimately, the Congress enacted the "Dodd-Frank Wall Street Reform and Consumer Protection Act", which does not contain the MM modification language of Section 4901.

For more on the APA, MM, and whether and when the FTC should be subjected to the MM process, see the Senate Commerce Committee's (SCC) hearing of March 17, 2010, and prepared testimony of Timothy Muris, prepared testimony of Thomas Rosch, prepared testimony of Dee Pridgen, and prepared testimony of Linda Woolley.

Such proposals may rise again. Also, while the Congress often gives the FTC APA rule making authority on a statute by statute basis, the Blackburn Olson amendment may suggest that proponents of a less regulatory federal system will seek to retain MM procedure for the FTC in other new statutes that grant specific powers to the FTC.

Subcommittee Members' Arguments. Rep. Olson stated in a release that "We need to move forward with comprehensive data security legislation, and the SAFE Data Act puts in place important protections for consumers. But we also need a balanced bill that protects consumers without putting unnecessary burdens on companies or hindering the important uses of data. The Blackburn-Olson amendment ensures that Congress -- not an unelected bureaucracy -- determines the definition of personal information. With this amendment, the proper protections will remain for the best balance between protecting consumers from identity theft and businesses ability to operate without excessive federal regulations."

Rep. Blackburn (at left) stated in this release that adoption of this amendment "is a defeat for over-regulation and a victory for job creators ... This correction, takes away the FTC's radical APA rulemaking authority, and provides much needed certainty for businesses that the FTC can't overreach in defining 'personal information'. Congress should not delegate such broad authority to an unaccountable and unelected body."

Rep. Olson said during the mark up session that the definition in the bill is "appropriate". He argued that with APA rulemaking authority, the FTC "is not going to be shy about opening up that definition", and that such a rule "could completely reform the scope of the bill". He added that enactment of this bill with this amendment "would create significant business uncertainty".

He said also that MM "is a much better system", and that the FTC should not be able to rewrite the definition "quickly and abruptly" and "without considering the economic consequences".

Rep. Blackburn said during the mark up that the Congress should "be more definitive", "put it in the statute" the important language, and not "kick the can over to the agencies".

Rep. Henry Waxman (D-CA), the ranking Democrat on the full Committee, spoke in opposition to the Blackburn Olson amendment. He argued that the "amendment before us would make sure that the FTC does not" amend the definition. He asserted that MM will "make it impossible for them to act".

Rep. GK Butterfield (D-NC), the ranking Democrat on the Subcommittee, said that the definition is unclear, that MM procedure is "incredibly hard to overcome", and that "the FTC needs discretion".

Rep. John Dingell (D-MI) said that "taking away the Administrative Procedure Act in this case is ridiculous". He said that under MM it takes ten years to complete a rulemaking proceeding.

Rep. Bobby Rush (D-IL) said that the amendment "will leave the commission unable to expand" the definition. He added that the FTC has "issued almost no rules under this process"

7/20. Magnuson Moss (MM) rulemaking procedure, codified at 15 U.S.C. § 57a, imposes several requirements upon the Federal Trade Commission (FTC) in conducting covered rule making proceedings. The following is list of some of the key requirements.

First, the FTC must "provide an opportunity for an informal hearing". The APA does not impose a hearing requirement. Also, when agencies that write rules under APA procedure, such as the Federal Communications Commission (FCC), conduct an event titled "hearing", it is more often an effort to increase public support for a particular set of rules, and rarely evidentiary exercise in which affected parties are guaranteed the opportunity to be heard..

Second, in a rulemaking proceeding in which the FTC has received "written data, views, and arguments", the FTC must "make all such submissions publicly available". This is a core transparency requirement.

Third, the FTC must "publish a notice of proposed rulemaking stating with particularity the text of the rule, including any alternatives, which the Commission proposes to promulgate". Agencies that write rules under APA procedure typically release a notice of proposed rule making in advance of the adoption of rules, but do not release the text of the new rules until prior to adopting them. Hence, interested parties often cannot effectively provide comment or evidence to the agency. Indeed, some agencies, such as the FCC, have not released rules until months after their adoption.

Also, the FTC is required to include "a statement as to the prevalence of the acts or practices treated by the rule". This makes it harder for the FTC to adopt rules on the basis of purely speculative harm, or because of the influence of interested companies or groups.

Also, the FTC is a required to include "a statement as to the manner and context in which such acts or practices are unfair or deceptive".

The House will meet at 10:00 AM for morning hour, and at 12:00 NOON for legislative business. Votes may begin as early as 1:00 PM. The agenda includes consideration under suspension of the rules of S 1103 [LOC | WW], a bill to extend the term of Federal Bureau of Investigation (FBI) Director Robert Mueller by two years. See, Rep. Cantor's schedule.

The Senate will meet at 2:00 PM. It will consider judicial nominations.

12:00 NOON - 1:00 PM. The Heritage Foundation (HF) will host a lecture by John Reynolds (Biola University) titled "Facebook Friends and Socialism: How Social Media Shapes Community". The HF will webcast this event. This event is free and open to the public. See, notice. Location: HF, 214 Massachusetts Ave., NE.

EXTENDED FROM JUNE 24. Extended deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) [55 pages in PDF] regarding wireless signal boosters. The FCC adopted this item on April 5, 2011, and released the text on April 6, 2011. It is FCC 11-53 in WT Docket No. 10-4. See, original notice in the Federal Register, Vol. 76, No. 90, Tuesday, May 10, 2011, at Pages 26983-26996. See also, FCC's June 20, 2011, Public Notice (DA 11-1078) and extension notice in the Federal Register, Vol. 76, No. 122, Friday, June 24, 2011, at Page 37049.

EXTENDED TO AUGUST 24. Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) [55 pages in PDF] regarding wireless signal boosters. The FCC adopted this item on April 5, 2011, and released the text on April 6, 2011. It is FCC 11-53 in WT Docket No. 10-4. See, original notice in the Federal Register, Vol. 76, No. 90, Tuesday, May 10, 2011, at Pages 26983-26996. See also, FCC's June 20, 2011, Public Notice (DA 11-1078) and extension notice in the Federal Register, Vol. 76, No. 122, Friday, June 24, 2011, at Page 37049.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Public Notice (PN) [6 pages in PDF] regarding the economic impact of low power FM stations on full service commercial FM stations. The FCC released this PN on May 10, 2011. It is DA 11-756 in MB Docket No. 11-83. See also, notice in the Federal Register, Vol. 76, No. 97, Thursday, May 19, 2011, at Pages 28983-28986, and story titled "FCC Seeks Comments on Economic Impact of LPFM on Commercial FM" in TLJ Daily E-Mail Alert No. 2,244, May 18, 2011.

The House will meet at 10:00 AM for morning hour, and at 12:00 NOON for legislative business. See, Rep. Cantor's schedule.

9:30 AM - 4:45 PM. The DC Bar Association will host an event titled "Legal Cybersleuth's Guide". The morning session is titled "Mastering Google and Beyond for Investigative Legal Research". The afternoon session is titled "Using Social Networking Sites for Investigative Legal Research While Avoiding Ethical Pitfalls". The speakers will be Carole Levitt and Mark Rosch (Internet for Lawyers). CLE credits. The DC Bar has a history of barring reporters from its events. For more information, call 202-626-3488. Prices vary. See, notice. Location: DC Bar, 1101 K St., NW.

10:00 AM. The Senate Judiciary Committee's (SJC) Subcommittee on Immigration, Refugees and Border Security will hold a hearing titled "The Economic Imperative for Enacting Immigration Reform". The witnesses will include Brad Smith (General Counsel of Microsoft) and Robert Greifeld (CEO of NASDAQ OMX Group). See, notice. The SJC will webcast this event. Location: Room 226, Dirksen Building.

10:00 AM. The House Ways and Means Committee (HWMC) will hold a hearing titled "Tax Reform and Consumption-Based Tax Systems". See, notice. Location: Room 1100, Longworth Building.

10:00 - 11:30 AM. The Institute for Policy Innovation (IPI) will host an event titled "Mobile Health: Innovations in Care & the Spectrum Challenge". The speakers will include Anand Iyer (COO-Well Doc, Inc.), Paul McRae (AT&T Emerging Healthcare Technologies), and Merrill Matthews (IPI). This event is free and open to the public. Refreshments will be served. Register by contacting Erin Humiston at erin at ipi dot org or 972-874-5139. See, notice. Location: Room 2325, Rayburn Building.

11:00 AM. The House Commerce Committee's (HCC) Subcommittee on Oversight and Investigations will hold a hearing titled "Cybersecurity: An Overview of Risks to Critical Infrastructure". The witnesses will be Bobbie Stempfley (acting head of the DHS's Office of Cyber Security and Communications), Sean McGurk
(Director of the DHS's National Cybersecurity and Communications Integration Center), and Gregory Wilshusen (Government Accountability Office). See, notice. Location: Room 2322, Rayburn Building.

1:30 PM. The Tech America (TA) will host an event to release and discuss a report on cloud computing by the Commission on the Leadership Opportunity in U.S. Deployment of the Cloud. For more information, contact Stephanie Craig at 202-682-4443 or Stephanie dot craig at techamericafoundation dot org. Location: Holeman Lounge, National Press Club, 13th floor, 529 14th St., NW.

The House will meet at 10:00 AM for morning hour, and at 12:00 NOON for legislative business. See, Rep. Cantor's schedule.

9:00 AM. Day one of a two day meeting of the Department of Commerce's (DOC) Bureau of Industry and Security's (BIS) Information Systems Technical Advisory Committee (ISTAC). The July 27 portion of the meeting is open to the public. The agenda includes "Wassenaar Proposals for 2012", and industry presentations on "Coherent Optical Technologies", "Graphics Processors", and "60 GHz MMIC Applications". See, notice in the Federal Register, Vol. 76, No. 130, Thursday, July 7, 2011, at Pages 39845-39846. Location: Room 3884, DOC, 14th Street between Constitution and Pennsylvania Aves., NW.

10:00 AM. The Senate Homeland Security and Government Affairs Committee (SHSGAC) will hold a hearing titled "Improving Emergency Communications". The witnesses will be Gregory Schaffer (DHS National Protection and Programs Directorate), Michael Varney (Connecticut Department of Emergency Services and Public Protection), Robert McAleer (Director of the Maine Emergency Management Agency), and Charles Ramsey (Police Commissioner, Philadelphia Police Department). See, notice. Location: Room 342, Dirksen Building.

11:15 AM. Day one of a two day meeting of the House Judiciary Committee (HJC) to mark up bills. The first of four items on the agenda is HR 1981 [LOC | WW], the "Protecting Children From Internet Pornographers Act of 2011", a bill to mandate data retention. See, stories titled "House Crime Subcommittee Holds Hearing on Data Retention Bill", "Summary of HR 1981, Data Retention Bill", and "Summary of Existing Data Retention Mandates" in TLJ Daily E-Mail Alert No. 2,257, July 13, 2011. The fourth item is HR 83 [LOC | WW], the "Bullying Prevention and Intervention Act of 2011". See, story titled "House Judiciary Committee to Mark Up Data Retention and Bullying Bills" in TLJ Daily E-Mail Alert No. 2,267, July 23, 2011. See, notice. Location: Room 2141, Rayburn Building.

1:00 PM. The House Small Business Committee (HSBC) will hold a hearing titled "Bureaucratic Obstacles for Small Exporters: Is our National Export Strategy Working?". See, notice. Location: Room 2360, Rayburn Building.

1:00 - 2:30 PM. Sen. Tom Carper (D-DE) will host an event titled "Cloud Computing and Federal Data Center Consolidation Thought Leadership". The speakers will include Sen. Carper, Sen. Scott Brown (R-MA), Vivek Kundra (OMB Federal Chief Information Officer), and others from government and the private sector. See, notice. For more information, contact Emily Spain at 202-224-2441. Location: Room SVC-201, Capitol Visitor Center.

2:30 PM. The Senate Judiciary Committee (SJC) will hold a hearing on five U.S. District Court nominees: Edgardo Ramos (USDC/SDNY), Andrew Carter (USDC/SDNY), Jesse Furman (USDC/SDNY), Rodney Gilstrap (USDC/EDTex), and Jennifer Zipps (USDC/DAriz). See, notice. The SJC will webcast this event. Location: Room 226, Dirksen Building.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) [15 pages in PDF] regarding whether to make the grandfathered providers permanently eligible for universal service subsidies under the FCC's rural health care program. The FCC adopted this NPRM on June 20, 2011, and released the text on June 21, 2011. It is FCC 11-101 in WC Docket No. 02-60. See, notice in the Federal Register, Vol. 76, No. 123, Monday, June 27, 2011, at Pages 37307-37309.

Deadline to submit comments to the U.S. Patent and Trademark Office (USPTO) regarding its proposed changes to certain patent fee amounts for FY 2012 to reflect fluctuations in the Consumer Price Index (CPI). See, notice in the Federal Register, Vol. 76, No. 123, Monday, June 27, 2011, at Pages 37296-37300.

The House will meet at 10:00 AM for morning hour, and at 12:00 NOON for legislative business. See, Rep. Cantor's schedule.

9:00 AM. Day one of a two day meeting of the Department of Commerce's (DOC) Bureau of Industry and Security's (BIS) Information Systems Technical Advisory Committee (ISTAC). The July 28 portion of the meeting is closed. See, notice in the Federal Register, Vol. 76, No. 130, Thursday, July 7, 2011, at Pages 39845-39846. Location: Room 3884, DOC, 14th Street between Constitution and Pennsylvania Aves., NW.

10:00 AM. Day one of a two day meeting of the House Judiciary Committee (HJC) to mark up bills. The first of four items on the agenda is HR 1981 [LOC | WW], the "Protecting Children From Internet Pornographers Act of 2011", a bill to mandate data retention. See, stories titled "House Crime Subcommittee Holds Hearing on Data Retention Bill", "Summary of HR 1981, Data Retention Bill", and "Summary of Existing Data Retention Mandates" in TLJ Daily E-Mail Alert No. 2,257, July 13, 2011. The fourth item is HR 83 [LOC | WW], the "Bullying Prevention and Intervention Act of 2011". See, story titled "House Judiciary Committee to Mark Up Data Retention and Bullying Bills" in TLJ Daily E-Mail Alert No. 2,267, July 23, 2011. See, notice. Location: Room 2141, Rayburn Building.

10:00 AM - 12:00 NOON. The House Intelligence Committee (HIC) will hold a closed hearing titled "Ongoing Intelligence Activities". See, notice. Location: Room HVC-304, Capitol Building.

10:00 AM. The Senate Judiciary Committee (SJC) will hold an executive business meeting. The agenda again includes consideration of Steve Six (to be a Judge of the U.S. Court of Appeals for the 10th Circuit). The SJC will webcast this event. See, notice. Location: Room 226, Dirksen Building.

The House will meet at 9:00 AM for legislative business. See, Rep. Cantor's schedule.

8:30 AM. The Department of Commerce's (DOC) Bureau of Economic Analysis (BEA) is scheduled to release its advance estimate of the U.S. Gross Domestic Product, 2nd Quarter 2011. See, BEA schedule.

12:15 - 1:15 PM. The Federal Communications Bar Association's (FCBA) Young Lawyers Committee will host a brown bag lunch titled "A Reduced History of Telecom Regulation: From the Railroads and the Titanic to iPad Snooki". The speaker will be Dan Brenner (Hogan Lovells). For more information, contact Evan Morris at Evan dot Morris at harris dot com, Mark Brennan at Mark dot Brennan at hoganlovells dot com, or Brendan Carr at BCarr at wileyrein dot com. Location: Wiley Rein, 1776 K St., NW.

Deadline to submit comments to the National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) regarding its draft SP 800-63 Revision 1 [110 pages in PDF] titled "Electronic Authentication Guideline".

Rep. Cantor's schedule for the House states that "Members are advised a weekend session is possible".

Deadline to submit initial comments to the Federal Communications Commission (FCC) regarding the report submitted to the FCC on June 30, 2011, by the technical working group co-chaired by LightSquared and the U.S. Global Positioning System Industry Council (USGIC). See, FCC International Bureau's (IB) order dated June 30, 2011. It is DA 11-1133 in DA 11-1133. See also report, part 1, part 2, part 3, part 4, part 5, part 6, and part 7.

7/20. At the House Commerce Committee's (HCC) Subcommittee on Commerce, Manufacturing, and Trade's (SCMT) July 20, 2011, mark up of HR 2577 [LOC | WW | PDF], the "Secure and Fortify Electronic (SAFE) Data Act of 2011", some Republicans advanced the argument that by requiring the Federal Trade Commission (FTC) to proceed under Magnuson Moss (MM) rulemaking procedure, the Congress, and particularly the House Commerce Committee (HCC), would retain power, rather than transfer power to the FTC.

The Subcommittee adopted an amendment offered by Rep. Marsha Blackburn (R-TN) and Rep. Pete Olson (R-TX) that imposes one limitation on FTC rulemaking authority. It provides, in effect, that in writing rules that change the definition of "personal information", the FTC must follow MM rulemaking procedure rather than Administrative Procedure Act (APA) procedure. See, related stories in this issue titled "House Commerce Subcommittee Approves SAFE Data Act", "Definition of Personal Information in SAFE Data Act", "Magnuson Moss Versus APA Rulemakings", and "What Magnuson Moss Requires of the FTC".

Subcommittee Democrats spoke in opposition to the Blackburn Olson amendment, but did not address the issue of Congressional power.

There is an argument to be made that the Congress, and particularly the HCC, increases it power when it gives a regulatory agency broad discretion to write rules under the APA. Under this argument, the Congress limits its power by imposing MM procedure upon the FTC.

It is extraordinarily hard to pass a bill in the Congress, due to there being two bodies, a committee system, and procedural rules such as the Senate filibuster. It is not nearly so hard for an agency to write rules, even though those rules may look and operate the same as Congressional legislation.

The Congress has established regulatory agencies with rulemaking power in part to enable members of Congress to obtain desired laws that the Congress cannot itself enact because of its own cumbersome procedure. Rule writing agencies often act as agents of the Congress, and particularly their oversight committees.

Recall, for example, former Justice John Paul Stevens' statement in the Supreme Court's 2009 opinion in FCC v. Fox Television Stations that the FCC "is better viewed as an agent of Congress".

Hence, for example, if members of a particular oversight committee cannot manage to get a particular bill enacted by the Congress, they can seek to shift the legislative forum to the regulatory agency which they oversee. The agency then sometimes writes into rules what the legislators could not move through the Congress.

But, for the agents, and their principals in the Congress, to pursue such a strategy, the agencies must have only minimal constraints upon their rulemaking powers, such as those embodied in the APA (as well as the minimal constraints resulting from the Supreme Court's Chevron decision).

Thus, by giving the FTC or another agency APA rulemaking authority, the Congress also retains the potential to legislate indirectly, and more easily, by influencing the agency's rule making process. If the agency is constrained by procedure such as that contained in MM, this legislation by agency strategy is largely unavailable.

Classes of 1974 and 2010. The Magnuson Moss Warranty Act (Public Law 93-637), including its provisions regarding FTC procedure, was enacted in 1975. It was a product of the post Watergate Congress that was influenced by the huge freshman class of 1974 that included Rep. Waxman. It was packed with youthful reform minded Democrats.

The MM Act was then viewed as one of many reform bills enacted in the years following the Watergate scandal that would make government less powerful, more open, and fairer. Other reforms addressed campaign finance, freedom of information, open government meetings, and copyright.

As the members of the class of 1974 spent more time in Washington and in Congress, their enthusiasm for their youthful reforms faded.

The MM Act was passed by an overwhelmingly Democratic Congress. Now long serving Democrats oppose MM procedure. Rep. Waxman (elected in 1974), Rep. Dingell (elected in 1955), and Rep. Rush (elected in 1992) have between them over 110 years of service in Congress.

In contrast, Rep. Olson was elected in 2008, and Rep. Blackburn in 2002. They can expect support on limiting FTC rulemaking authority from the huge Republican class of 2010. One might predict, however, that over time the remaining members of the class of 2010 will also lose their enthusiasm for limiting government authority.

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