11/9. The Senate began its consideration of SJRes 6, a resolution of disapproval of the Federal Communications Commission's (FCC) rules, adopted in late December 2010, regulating the network management practices of broadband internet access service (BIAS) providers.

The FCC's rules are contained in the Report and Order (R&O) [194 pages in PDF] adopted on December 21, 2010, and released on December 23, 2010. This R&O is FCC 10-201 in GN Docket No. 09-191 and WC Docket No. 07-52. See also, stories in TLJ Daily E-Mail Alert No. 2,186, December 22, 2010, and TLJ Daily E-Mail Alert No. 2,188, December 24, 2010.

The resolution under consideration provides, pursuant to the Congressional Review Act (CRA), which is codified at 5 U.S.C. § 802, that it is "Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, That Congress disapproves the rule submitted by the Federal Communications Commission relating to the matter of preserving the open Internet and broadband industry practices (Report and Order FCC 10-201, adopted by the Commission on December 21, 2010), and such rule shall have no force or effect."

The House previously passed its version of this resolution, HJRes 37, on April 8, 2011, by a vote of by a vote of 240-179. See, story titled "House Passes Resolution Disapproving the FCC's BIAS Rules" in TLJ Daily E-Mail Alert No. 2,220, April 11, 2011.

The FCC's regulations have not yet taken effect, because the FCC delayed so long in publishing them in the Federal Register. The FCC's regulations are set to take effect on November 20, 2011.

The Obama administration has threatened a Presidential veto. See, story titled "OMB Says President's Advisors Would Recommend Veto of HJRes 37" in TLJ Daily E-Mail Alert No. 2,217, April 5, 2011.

The FCC's rules are also the subject of pending judicial review.

The debate broke down along party lines. Republicans supported the resolution. Democrats opposed it.

The Senate may continue its consideration of this resolution on Thursday, November 10.

Sen. Kay Hutchison (R-TX), the sponsor of the resolution, and ranking Republican on the Senate Commerce Committee (SCC), spoke in support. See, Congressional Record, November 9, 2011, at Pages S7239-41, and YouTube video (17 minutes, 40 seconds).

Sen. Hutchison (at right) criticized "the Obama administration's relentless imposition of new regulations", by the FCC, and by other federal agencies.

She said that "Today's issue involves bureaucratic overreach", because the FCC "decided to regulate the Internet. Last December, three FCC Commissioners, on a party-line vote, voted to impose rules that restrict how Internet service providers offer broadband services to consumers. Those rules, known as net neutrality, impose 19th century-style monopoly regulations on the most competitive and important job-creating engine of the 21st century, the Internet."

She continued that "This marks a stunning reversal from the hands-off approach to the Internet that Federal policymakers have taken for more than a decade."

She argued that "The net neutrality order allows the FCC to tell broadband providers what kind of business practices are reasonable and unreasonable. The FCC, however, did not bother to clearly define in its rules what the agency considers to be reasonable. This point is vital to understand. With such an arbitrary and yet poorly defined standard, companies will be forced to err on the side of caution. Rather than risk possible punishment from the FCC, many companies will simply decide: Maybe we will not invest right now in new technologies. Maybe it is too risky to develop and deploy new services. At the very least, it will delay such investment. This kind of regulatory uncertainty will be crippling for companies and particularly small providers."

She also said that the "Congress has never given the FCC the explicit authority to regulate how internet providers manage their networks. That is why the new rules represent an unprecedented power grab by the unelected Commissioners at the FCC."

She added that the FCC "has already lost this fight in the courts", citing the opinion of the U.S. Court of Appeals (DCCir) in Comcast v. FCC.

"It is time for the Senate to stop this overreach." The Congress, not agencies, should write the law, and the Congressional Review Act (CRA) gives the Congress the authority to reign in rogue agencies, such as the FCC, said Sen. Hutchison.

Sen. John Rockefeller (D-WV) spoke in opposition. He said "Americans want the Internet to remain free and open. Americans want to be able to go where they want and do what they want on the Internet. They want to be able to develop new businesses; read and watch video; and reach out to friends, family, and community -- online. And they want to do all of these things on the Internet, without having to ask permission from their broadband provider. The FCC has promulgated balanced rules that let Americans do all of these things -- and keep the Internet open and free." See, prepared statement, and Congressional Record, November 9, 2011, at Pages S7241-5.

He argued that "In a world without a free and open Internet, there would be nothing to stop broadband providers from blocking access to websites that offer products that compete with those of its affiliates. In a world without a free and open Internet, companies could pay Internet providers to guarantee that their websites open more quickly than competitors. In a world without a free and open Internet, companies could pay Internet providers to make sure that their online sales are processed more quickly than competitors with lower prices – particularly disturbing in these tough economic times. In a world without a free and open Internet, there would be nothing to prevent Internet service providers from charging users a premium in order to guarantee operation in the “fast lane.”"

Sen. Mitch McConnell (R-KY) stated in the Senate that "Everywhere I go in Kentucky, I hear from businesses large and small that they are struggling to comply with the mountains of rules and regulations coming out of Washington. At a time when the private sector would like to create jobs and grow the economy, it seems as if too many here in Washington want to create regulations and grow government." See, Congressional Record, November 9, 2011, at Pages S7229-30.

He continued that the FCC's "net neutrality regulations ... are a solution in search of a problem. It is an overreaching attempt to fix the Internet when the Internet is not broken. According to the FCC's own data, 93 percent of broadband subscribers are happy with their service. If Americans weren't happy with their provider or felt the provider was favoring some form of content over others, they could switch providers. But now the FCC says its regulations are necessary because of what might happen in the future--what might happen in the future--if broadband providers have incentives to favor one type of content over another, despite the fact that after 15 years, there is no evidence of this occurring in any significant way. If Internet providers were so interested in doing this, wouldn't they have done it by now? Instead, the FCC has exceeded its authority to grow the reach of government under the guise of fixing a problem that doesn't even exist."

Sen. Roger Wicker (R-MS) stated in the Senate that "The FCC order reads that Internet providers ``shall not block lawful content, applications, services or non-harmful devices, subject to reasonable network management.'' It goes on to say that providers ``shall not unreasonably discriminate in transmitting lawful network traffic over a consumer's broadband Internet access service.''

"But the terms ``lawful´´ and ``reasonable´´ are not easily defined. Under the order, what is lawful and what is reasonable would be determined by unelected bureaucrats. The FCC would rule as a de facto police of the open and free Internet. The FCC would be the final arbiter of what broadband service providers can and cannot do." See, Congressional Record, November 9, 2011, at Pages S7246.

Sen. John Kerry (D-MA) argued that the Senate opponents of the FCC's rules "are trying to say to the American people that they want to liberate the Internet, when, in fact, what they want to do is imprison the Internet within the hands of the most powerful communications entities today to act as the gatekeepers who will control the ability of the Internet to do the very kind of development that brought us here. What they are talking about, their concept, this CRA challenge is that wolf in sheep's clothing."

He said that as a result of the FCC's rules, "Innovators now know they are not going to have to go ask a big telephone company: Hey, Verizon, hey AT&T, will you guys please let us have access so we can go do this thing? Oh, well, maybe we will do that, but we are going to charge you in order to do that. They completely destroy the openness that is provided, this ability for anybody in America to sit in their home or school or somewhere and come up with an idea and innovate. That freedom to innovate, the freedom to innovate is what has made the Internet the platform for economic and social development it is today, and a vote for the CRA is a vote to stifle that."

Sen. Lisa Murkowski (R-AK) argued that "The rule put into place by the FCC in 2010 circumvents Congress. It assumes an authority that this body never consented to. We cannot allow the executive branch to go down this road. We just should not allow it. No provision of any statute explicitly gives the FCC the authority to impose these sweeping rules on the Internet."

Sen. Al Franken (D-MN) said that "net neutrality is the free speech issue of our time"

Sen. Franken (at left) speculated that "Without net neutrality, Myspace or Friendster -- remember them -- could have partnered with Comcast to gain priority access or to block Facebook altogether. Blockbuster could have paid AT&T to slow down or completely block streaming of Netflix videos. Barnes & Noble could have paid Verizon to block access to amazon.com. Imagine a world where the corporation with the biggest checkbook can control what we see and how fast we access content on the Internet."

He said that "this resolution of disapproval amounts to little more than political gamesmanship from fringe organizations", and "is a procedural stunt that wastes limited time".

Sen. John Barrasso (R-WY) said that "we have unelected, unaccountable bureaucrats, who are ignoring Congress and voting for regulation of the Internet." He added that "The administration is now making it a priority -- a priority -- to regulate another sector of our economy over jobs. The FCC has opened the door for Washington bureaucrats to take over one-sixth of our economy."

Sen. John McCain (R-AZ) said, "Might I remind the bureaucrats at the FCC that as a government agency, the FCC is not elected by the people only the House, Senate, and the President are duly elected. And, as our Constitution makes clear, the authority to legislate is solely vested in the elected representatives of the American people, not five politically appointed FCC Commissioners. As such, the resolution before us today not only seeks to undo bad policy, it also seeks to restore the constitutional integrity of the Congress. If we fail to pass this resolution of disapproval, our institutional credibility will be further eroded."

Sen. Marco Rubio (R-FL), Sen. Pat Toomey (R-PA), Sen. John Boozman (R-AR), Sen. Roy Blunt (R-MO), Sen. Jim DeMint (R-SC), Sen. James Inhofe (R-OK) also spoke in support of the resolution.

Sen. Mark Udall (D-CO) and Sen. Maria Cantwell (D-WA) also spoke in opposition to the resolution.

For more on House consideration of its resolution, see:

• "Rep. Upton Urges Approval of HJRes 37" in TLJ Daily E-Mail Alert No. 2,219, April 7, 2011.
• "House Begins Consideration of HJRes 37" in TLJ Daily E-Mail Alert No. 2,217, April 5, 2011.
• "House Commerce Committee Approves HJRes 37" in TLJ Daily E-Mail Alert No. 2,204, March 15, 2011.
• "House Subcommittee Passes Resolution of Disapproval of FCC BIAS Rules" in TLJ Daily E-Mail Alert No. 2,202, March 10, 2011.
• "House Subcommittee to Mark Up Resolution Disapproving FCC's BIAS Rules" in TLJ Daily E-Mail Alert No. 2,201, March 2, 2011.

11/3. The Office of the Director of National Intelligence (DNI) released a report [31 pages in PDF] titled "Foreign Spies Stealing US Economic Secrets in Cyberspace: Report to Congress on Foreign Economic Collection and Industrial Espionage, 2009-2011".

It finds that "Chinese actors are the world's most active and persistent perpetrators of economic espionage." It adds that "Russia's intelligence services are conducting a range of activities to collect economic information and technology from US targets."

Rep. Mike Rogers (R-MI), the Chairman of the House Intelligence Committee (HIC), stated in a release that "This report confirms what I have heard time and time again: the Chinese remain the most aggressive and persistent perpetrators of economic and industrial espionage against the United States. Their continued theft of sensitive economic information is a threat to our national security, hurts American businesses and workers, and causes incalculable harm to global economy. This once again underscores the need for America's allies across Asia and Europe to join forces to pressure Beijing to end this illegal behavior."

This DNI report also finds that "the greatest interest" is in "Information and communications technology", "Business information that pertains to supplies of scarce natural resources or that provides foreign actors an edge in negotiations with US businesses or the US Government", and "Military technologies".

This report also warns that "political or social activists may use the tools of economic espionage against US companies, agencies, or other entities, with disgruntled insiders leaking information about corporate trade secrets or critical US technology to ``hacktivist´´ groups like WikiLeaks".

This report explains that "Foreign collectors of sensitive economic information are able to operate in cyberspace with relatively little risk of detection by their private sector targets. The proliferation of malicious software, prevalence of cyber tool sharing, use of hackers as proxies, and routing of operations through third countries make it difficult to attribute responsibility for computer network intrusions."

Also, "the proliferation of portable devices that connect to the Internet and other networks will continue to create new opportunities for malicious actors to conduct espionage. The trend in both commercial and government organizations toward the pooling of information processing and storage will present even greater challenges to preserving the security and integrity of sensitive information."

The House will not meet.

The Senate will meet at 9:30 AM.

12:00 NOON - 2:00 PM. The DC Bar Association will host a panel discussion titled "The America Invents Act -- Perspectives from the PTO and the Bar". The speakers will be Robert Stoll (Commissioner for Patents, USPTO), Stephen Kunin (Oblon Spivak), Harold Wegner (Foley & Lardner), and Mark Williamson (Fitzpatrick Cella Harper & Scinto). See, notice. The price to attend ranges from $30 to $40. No CLE credits. For more information, call 202-626-3463. Location: DC Bar Conference Center, 1101 K St., NW.

12:00 NOON - 1:00 PM. The American Bar Association (ABA) will host a teleconferenced event titled "October Antitrust Update for In-House Counsel". See, notice. No CLE credits. Free.

2:00 PM. There will be a test of the Emergency Alert System (EAS). See, Federal Communications Commission's (FCC) Public Notice of June 9, 2011, and Public Notice of August 23, 2011.

2:30 PM. The Senate Judiciary Committee's (SJC) Subcommittee on Privacy, Technology and the Law will hold a hearing titled "Your Health and Your Privacy: Protecting Health Information in a Digital World". The SJC will webcast this event. Sen. Al Franken (D-MN) will preside. See, notice. Location: Room 226, Dirksen Building.

3:30 PM. The Senate Intelligence Committee (SIC) will hold a closed meeting. See, notice. Location: Room 219, Hart Building.

6:00 - 7:30 PM. The New America Foundation (NAF) and British Council (BC) will host a panel discussion titled "Trust 2.0: Building Trust Through Technology". The speakers will be Deborah Dignam (BC), Stephanie Schierholz (NASA), Danny Harris (People's District), Rebecca Zylberman (BC), and Kara Hadge (BC). See, notice. Location: NAF, Suite 400, 1899 L St., NW.

The House will meet in pro forma session at 2:30 PM.

The Senate is scheduled to resume its consideration of SJRes 6, a resolution of disapproval of the Federal Communications Commission's (FCC) rules, adopted in late December 2010, regulating the network management practices of broadband internet access service (BIAS) providers.

9:30 AM - 12:00 NOON. The American Enterprise Institute (AEI) will host an event titled "Taiwan's Future in the Asian Century: Toward a Strong, Prosperous and Enduring Democracy". See, notice and registration page. The AEI will webcast this event. Location: AEI, 12th floor, 1150 17th St., NW.

10:00 AM. The Senate Judiciary Committee (SJC) will hold an executive business meeting. The agenda includes consideration of the nominations of Michael Horowitz to be Inspector General of the Department of Justice (DOJ), and Susie Morgan to be a Judge of the U.S. District Court for the Eastern District of Louisiana. The SJC will webcast this event. See, notice. Location: Room 216, Hart Building.

2:30 PM. The Senate Intelligence Committee (SIC) will hold a closed meeting. See, notice. Location: Room 219, Hart Building.

Deadline to submit comments to the National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) regarding its draft SP 800-153 [24 pages in PDF], titled "Guidelines for Securing Wireless Local Area Networks".

Deadline to submit comments to the National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) regarding its draft SP 800-121 rev. 1 [49 pages in PDF], titled "Guide to Bluetooth Security".

The House will not meet.

The Senate will not meet.

Veterans Day. This is a federal holiday. See, OPM list of 2011 federal holidays. This is also a Supreme Court holiday.

8:30 AM - 5:30 PM. Day one of a five day closed meeting of the Department of Commerce's (DOC) National Institute of Standards and Technology's (NIST) Malcolm Baldrige National Quality Award Panel of Judges. See, notice in the Federal Register, Vol. 76, No. 190, Friday, September 30, 2011, at Page 60806. Location: NIST, Administration Building, Lecture Room E, Gaithersburg, MD.

Deadline to submit comments to the Department of Agriculture's Rural Utilities Service (RUS) regarding its interim rules changes regarding "areas of eligibility to expand or improve 911 access and integrated emergency communications systems in rural areas for the Telecommunications Loan Program". See, notice in the Federal Register, Vol. 76, No. 176, Monday, September 12, 2011, at Pages 56091-56094.

EXTENDED FROM NOVEMBER 4. 5:00 PM. Deadline to submit comments to the Department of Commerce (DOC) and Department of Homeland Security (DHS) in response to their notice in the Federal Register (FR) that requests comments regarding creating a "voluntary" code for internet access service providers to follow regarding the detection, notification and mitigation of botnets. See, FR, Vol. 76, No. 183, Wednesday, September 21, 2011, at Pages 58466-58469. See also, story titled "NIST, NTIA and DHS Propose Botnet Mitigation Regime for Internet Access Service Providers" in TLJ Daily E-Mail Alert No. 2,303, September 22, 2011. See also, FR extension notice, Vol. 76, No. 213, Thursday, November 3, 2011, at Page 68160.

8:30 AM - 5:30 PM. Day two of a five day closed meeting of the Department of Commerce's (DOC) National Institute of Standards and Technology's (NIST) Malcolm Baldrige National Quality Award Panel of Judges. See, notice in the Federal Register, Vol. 76, No. 190, Friday, September 30, 2011, at Page 60806. Location: NIST, Administration Building, Lecture Room E, Gaithersburg, MD.

10:00 AM. The House Judiciary Committee's (HJC) Subcommittee on Crime, Terrorism, and Homeland Security will hold a hearing titled "Cyber Security: Protecting America's New Frontier". See, notice. Location: Room 2141, Rayburn Building.

11:30 AM. The House Foreign Affairs Committee (HFAC) Subcommittee on Asia and the Pacific will hold a hearing titled "Feeding the Dragon: Reevaluating U.S. Development Assistance to China". See, notice. Location: Room 2172, Rayburn Building.

2:30 PM. The Senate Commerce Committee (SJC) will hold a hearing on the nominations of Jonathan Leibowitz and Maureen Ohlhausen to be Commissioners of the Federal Trade Commission (FTC), and Rebecca Blank to be Deputy Secretary of Commerce. See, notice. Location: Room 253, Russell Building.

2:30 PM. The Senate Intelligence Committee (SIC) will hold a closed meeting. See, notice. Location: Room 219, Hart Building.

TIME?. The U.S.-China Economic and Security Review Commission will hold a news conference to release its 2011 Annual Report to Congress. See, notice in the Federal Register, Vol. 76, No. 167, Monday, August 29, 2011, at Pages 53717-53718. Location?

8:30 AM - 5:30 PM. Day three of a five day closed meeting of the Department of Commerce's (DOC) National Institute of Standards and Technology's (NIST) Malcolm Baldrige National Quality Award Panel of Judges. See, notice in the Federal Register, Vol. 76, No. 190, Friday, September 30, 2011, at Page 60806. Location: NIST, Administration Building, Lecture Room E, Gaithersburg, MD.

10:00 AM. The House Judiciary Committee (HJC) will hold a hearing on HR 3261 [LOC | WW], the "Stop Online Piracy Act". See, notice. Location: Room 2141, Rayburn Building.

2:30 PM. The Senate Judiciary Committee (SJC) will hold a hearing titled "Nominations". See, notice. Location: Room 226, Dirksen Building.

8:30 AM - 5:30 PM. Day four of a five day closed meeting of the Department of Commerce's (DOC) National Institute of Standards and Technology's (NIST) Malcolm Baldrige National Quality Award Panel of Judges. See, notice in the Federal Register, Vol. 76, No. 190, Friday, September 30, 2011, at Page 60806. Location: NIST, Administration Building, Lecture Room E, Gaithersburg, MD.

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

10:00 AM. The Department of Commerce's (DOC) Bureau of Industry and Security's (BIS) Materials Technical Advisory Committee will hold a partially closed meeting. See, notice in the Federal Register, Vol. 76, No. 213, Thursday, November 3, 2011, Page 68128. Location: DOC, Hoover Building, Room 3884, 14th Street between Constitution & Pennsylvania Avenues, NW.

10:30 AM. The Federal Communications Commission (FCC) may hold an event titled "open meeting". Location: FCC, Commission Meeting Room, 445 12th St., SW.

2:30 PM. The Senate Intelligence Committee (SIC) will hold a closed meeting. See, notice. Location: Room 219, Hart Building.

11/9. The Federal Communications Commission (FCC) released a tentative agenda for its event scheduled for November 30, 2011, titled "Open Meeting".

It states that the FCC is scheduled to adopt a Report and Order (R&O) that "allocates spectrum in the 413-457 MHz band and adopts service and technical rules to allow the use of new types of implanted medical devices that use functional electric stimulation".

It also states that FCC staff is scheduled to make a presentation on "broadband adoption efforts".

This event is scheduled for 10:30 AM, on Wednesday, November 30, in the FCC's Commission Meeting Room, Room TW-C305, at 445 12th Street, SW. The FCC will webcast this event.

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