11/22. Federal Communications Commission (FCC) Chairman Julius Genachowski announced that he has proposed that the FCC's review of proposed merger of AT&T and T-Mobile be designated for administrative hearing.

Genachowski did not propose that the Commission issue an order denying approval of the license transfers associated with the merger. That would be a final order subject to judicial review.

Under the procedure proposed by the Chairman, the full Commission must first vote to designate this matter for administrative hearing. This has not yet occurred. Then, the hearing process itself would be prolonged because it would be evidentiary and involve numerous issues of first impression for the administrative law judge. Finally, the Commission would then review the decision of the administrative law judge.

An administrative hearing process would not likely play out until after resolution of the Department of Justice's (DOJ) Antitrust Division's action in the U.S. District Court (DC) to block the merger. The trial in that action is scheduled to commence in February of 2012.

By designating this matter for administrative hearing, the FCC would likely evade the judicial review that would follow if the Commission were to issue a final order at this time denying approval. One of the grounds for challenging such a final order would be that the FCC lacks statutory authority to conduct such reviews.

The administrative hearing process is dilatory in nature, while an immediate rejection could result in a Court of Appeals opinion that would constrain future FCC antitrust merger reviews.

Kathy Sloan of the Computer and Communications Industry Association (CCIA) stated in a release that "We applaud the FCC chairman for deciding to designate this proposed AT&T transaction for a hearing. We recognize there are a host of issues raised by the merger in which the FCC has both the expertise and jurisdiction including the effective use of spectrum, the availability of affordable broadband and employment issues. These are not the purview of the Justice Department, which is focused on the antitrust issues raised by AT&T's proposed takeover of T-Mobile."

Gigi Sohn, head of the Public Knowledge (PK), praised Genachowski in a release. Craig Aaron, head of the Free Press, praised Genachowski's announcement, and again criticized AT&T in a release for its "blatant lies and misleading advertising campaign".

11/22. The Federal Communications Commission (FCC) released a tentative agenda for its event titled "Open Meeting", scheduled for Tuesday, December 13, 2011.

There is only one item on the agenda -- adoption of a Report and Order containing rules that implement the Commercial Advertisement Loudness Mitigation Act (CALM Act). This Act pertains to the volume of television commercials.

The Act leaves the FCC little discretion. It 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 the FCC to incorporate by reference the standards set by the Advanced Television Systems Committee (ATSC).

Specifically, the CALM Act 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.)

The CALM Act was S 2847 [LOC | WW], enacted in the closing days of the 111th Congress. 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. President Obama signed it on "President Signs CALM Act" in TLJ Daily E-Mail Alert No. 2,181, December 17, 2010.

The event is scheduled for December 13 at 10:30 AM at the FCC headquarters, Room TW-C305, 445 12th Street, SW.

11/21. Federal Communications Commission (FCC) Commissioner Michael Copps named Lisa Hone his advisor on wireline matters. She is on detail from the FCC's Wireline Competition Bureau (WTB). See, release.

11/17. Federal Communications Commission (FCC) Chairman Julius Genachowski named Greg Guice Director of the FCC's Office of Legislative Affairs (OLA) and Christopher Lewis Deputy Director of the OLA. See, release.

11/18. The Senate Commerce Committee (SCC) scheduled one confirmation hearing on November 30, 2011, for the two pending nominees for the Federal Communications Commission (FCC) -- Jessica Rosenworcel and Ajit Pai. See, notice.

11/17. Rep. Mike Rogers (R-MI) and Rep. Dutch Ruppersberger (D-MD), the Chairman and ranking Democrat on the House Intelligence Committee (HIC), announced that the HIC "has launched an investigation into the threat posed by Chinese-owned telecommunications companies working in the United States, and the government's response to that threat".

Rep. Rogers stated in a release that Huawei "happens to be the 800 pound gorilla in the room, but there are other companies that will be included in the investigation as well". He added that "I stand by my caution to the American business community about engaging Huawei technology until we can fully determine their motives".

Rep. Ruppersberger (at right) stated in this release that "We already know the Chinese are aggressively hacking into our nation’s networks, threatening our critical infrastructure and stealing secrets worth millions of dollars in intellectual property from American companies. This jeopardizes our national security and hurts U.S. competitiveness in the world market, costing our country countless jobs. The same way hacking can be a threat, vulnerabilities can derive from compromised hardware on which our telecommunications industry rely."

He added that "The purpose of this investigation is to determine to what extent Chinese communications companies are exploiting the global supply chain and how we can mitigate this threat to our national and economic security".

The release of Rep. Rogers and Rep. Ruppersberger also identifies ZTE as a threat.

11/17. Sharis Pozen, acting Assistant Attorney General in charge of the Department of Justice's (DOJ) Antitrust Division, gave a speech in Washington DC.

Pozen (at right) said that she is working to make the transition of leadership to her from former AAG Christine Varney "seemless". She did not announce changes in antitrust policy. She reviewed in broad strokes the activities and cases of the Antitrust Division in the past year, and discussed implementation of the revised Horizontal Merger Review Guidelines released by the DOJ and Federal Trade Commission (FTC) one year ago. See, story titled "DOJ and FTC Release Revised Horizontal Merger Guidelines" in TLJ Daily E-Mail Alert No. 2,127, August 20, 2010.

She stated that in merger review matters "in which the parties did not propose remedies that would effectively preserve competition, the division went to court to block the transaction." She added that one example is "our ongoing suit to block AT&T’s proposed acquisition of T-Mobile".

She also stated that the Antitrust Division "has been active internationally, particularly with respect to enhancing case cooperation across jurisdictions; developing new and deeper relationships with emerging economies such as China and India".

She added to this that "agency cooperation in matters being investigated by more than one jurisdiction produces the benefits of shared learning and expertise, and the parties gain from a more efficient review. Unfortunately, not all merging parties have supported our cooperative approach and instead have attempted to leverage one country’s investigation against another's. That is their choice, but these tactics often unnecessarily complicate our investigations and may extend our reviews."

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The House will meet at 10:00 AM in pro forma session.

The Senate will meet at 11:00 AM in pro forma session.

12:30 - 2:00 PM. The New America Foundation (NAF) will host an event titled "Context: Further Selected Essays on Productivity, Creativity, Parenting, and Politics in the 21st Century". The speaker will be Cory Doctorow. The NAF notice states that Doctorow is an "technology activist" whose speech has something to do with "lambasting the corporations that profit by limiting inherent intellectual freedoms". Location: NAF, Suite 400, 1899 L St., NW.

The House will not meet.

The Senate will not meet.

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

The House will meet at 1:00 PM in pro forma session.

The Senate will meet at 10:30 AM in pro forma session.

5:00 PM. Deadline to submit comments to the National Institute of Standards and Technology (NIST) regarding its document [209 pages in PDF] titled "Draft NIST Framework and Roadmap for Smart Grid Interoperability Standards, Release 2.0". See, notice in the Federal Register, Vol. 76, No. 206, Tuesday, October 25, 2011, at Page 66040.

The Senate will return from its Thanksgiving break at 1:00 PM. It will resume consideration of consideration of S 1867 [LOC | WW], the "Department of Defense Authorization Act". It will also consider the nomination of Christopher Droney to be a Judge of the U.S. Court of Appeals (2ndCir).

10:00 AM - 5:15 PM. Day one of a two day meeting of the National Science Foundation's (NSF) Advisory Committee for Cyberinfrastructure. See, notice in the Federal Register, Vol. 76, No. 217, Wednesday, November 9, 2011, at Page 69769. Location: NSF, 4201 Wilson Blvd., Room 1235, Arlington, VA.

11:00 AM. The Supreme Court will hear oral argument in Mims v. Arrow Financial Services, Sup. Ct. No. 10-1195 a petition for writ of certiorari to the U.S. Court of Appeals (11thCir). The issue is whether federal courts can hear actions brought under the Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227. See, November 30, 2010 opinion of the Court of Appeals.

Deadline to submit comments to the Federal Trade Commission (FTC) regarding the Proposed Consent Agreement in the FTC's administrative proceeding regarding Healthcare Technology Holdings, Inc.'s acquisition of SDI Health LLC, and the impact upon the market for certain healthcare data. This is in substance a Section 7 of the Clayton Act (15 U.S.C. § 18) proceeding, but brought under the rubric of Section 5 of the FTC Act (15 U.S.C. § 45). See, notice in the Federal Register, Vol. 76, No. 213, Thursday, November 3, 2011, at Pages 68189-68191.

10:00 AM - 5:15 PM. Day two of a two day meeting of the National Science Foundation's (NSF) Advisory Committee for Cyberinfrastructure. See, notice in the Federal Register, Vol. 76, No. 217, Wednesday, November 9, 2011, at Page 69769. Location: NSF, 4201 Wilson Blvd., Room 1235, Arlington, VA.

12:00 NOON - 1:00 PM. The American Bar Association (ABA) will host a teleconferenced panel discussion titled "Antitrust as a Defense in Intellectual Property Infringement Cases". The speakers will be Oliver Antoine (Crowell & Moring), Pierre Regibeau (Charles River Associates), Jing He (ZY Partners of Beijing), Ingrid Vandenborre (Skadden Arps), and Aurelien Condomines (Aramis). See, notice. Prices vary.

12:00 NOON - 1:30 PM. The American Bar Association (ABA) will host a webcast and teleconferenced panel discussion titled "New Restrictions on U.S. Internet Sales: Data Passes, Negative Options, Automatic Renewals and Recurring Charges". The speakers will be Holly Towle (K & L Gates), Alysa Hutnik (Kelley Drye & Warren), and Damier Xandrine (Wells Fargo Bank). See, notice. Prices vary. CLE credits.

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

2:30 PM. The Senate Commerce Committee (SCC) will hold a hearing on the nominations of Jessica Rosenworcel and Ajit Pai to be Commissioners of the Federal Communications Commission (FCC). The SCC will webcast this event. See, notice. Location: Room 253, Russell Building.

6:00 - 8:15 PM. The Federal Communications Bar Association (FCBA) will host an event titled "Slicing the Airwaves Pie: Incentive Auctions, Incumbent Relocation and New Principles of Spectrum Management". Prices vary. CLE credits. Registrations and cancellations are due by 5:00 PM on November 28. See, registration form. Location: Bingham McCutchen, 2020 K St., NW.

8:00 - 10:00 AM. The U.S. Patent and Trademark Office (USPTO) will host an event titled "Trademark Office Speaks". The speakers will be Deborah Cohn (Commissioner for Trademarks) and Gerard Rogers (Chief Administrative Trademark Judge of the U.S. Trademark Trial and Appeal Board). The price to attend ranges from $20 to $35. The D.C. Bar Association, which bars reporters from many of its events, states that this is a DC Bar event. See, notice. Location: Cosmos Club, 2121 Massachusetts Ave., NW.

10:00 AM. The Senate Judiciary Committee (SJC) will hold an executive business meeting. The agenda again lists consideration of three judicial nominees: Jacqueline Nguyen (to be a Judge of the U.S. Court of Appeals for the 9th Circuit), Gregg Costa (U.S. District Court for the Southern District of Texas), and David Guaderrama (USDC, Western District of Texas). The SJC will webcast this event. Location: Room 226, Dirksen Building.

12:00 NOON. The Federal Trade Commission's (FTC) Bureau of Economics will host a presentation titled "Tying and Bundling in a Nearly Contestable Market". The speaker will be Michael Salinger (Boston University). See, presentation paper [PDF]. For more information, contact Loren Smith at lsmith2 at ftc dot gov or Tammy John at tjohn at ftc dot gov. Location: FTC, Room 4100, 601 New Jersey Ave., NW.

12:00 NOON - 1:30 PM. The American Bar Association (ABA) will host a brown bag lunch titled "Old Media Meet New Media: What Lawyers & Clients Need to Know Before and During a Crisis". The speakers will be Len Biegel, Rich Cooper, Andre Francis and Mark Sedak. See, notice. Location: ABA, 740 15th St., NW.

6:00 - 8:30 PM. The Federal Communications Bar Association (FCBA) will host a reception. Prices vary. Registrations and cancellations are due by 5:00 PM on November 28. See, registration form. Location: Swedish Embassy, 2900 K St., NW.

Supreme Court conference day. See, calendar. Closed.

5:00 PM. Deadline to submit comments to the National Institute of Standards and Technology (NIST) regarding its draft Special Publication 500-293 [32 pages in PDF] titled "US Government Cloud Computing Technology Roadmap, Release 1.0". See, notice in the Federal Register, Vol. 76, No. 211, Tuesday, November 1, 2011, at Pages 67418-67419.

Deadline to submit comments to the Department of Homeland Security (DHS) in response to its notice in the Federal Register (FR) that announces, describes, and recites proposed rules regarding its system of records involving collection and use debit and credit card data for civil, criminal and intelligence purposes. The DHS proposes to exempt portions of this system of records from one or more provisions of the Privacy Act. See, FR, Vol. 76, No. 212, Wednesday, November 2, 2011, at Pages 67621-67622.