6/7. President Obama nominated Mignon Clyburn to be a member of the Federal Communications Commission (FCC). See, White House news office release and release.

This is a reappointment. President Obama first appointed Clyburn (at right) in 2009. See, story titled "Obama Announces Mignon Clyburn for FCC Commissioner" in TLJ Daily E-Mail Alert No. 1,933, April 29, 2009.

This is for a term of five years from July 1, 2012.

FCC Chairman Julius Genachowski praised the decision, and stated in a release that she has "focused on helping all Americans harness the benefits of broadband". Commissioner Robert McDowell praised her in a release. Commissioner Jessica Rosenworcel praised her in a release. Commissioner Pai praised her in a release.

Michael Powell, a former FCC Chairman, and now head of the National Cable and Telecommunications Association (NCTA), stated in a release that "We congratulate Commissioner Clyburn for her well-deserved renomination to a second term at the FCC. Commissioner Clyburn is a passionate advocate for empowering all consumers through technology and we look forward to continuing working with her and the entire Commission to ensure that all Americans enjoy the transformative benefits of broadband and other communications services."

6/6. The Federal Communications Commission (FCC) released an agenda for its event on Wednesday, June 13, 2012, titled "Open Meeting".

First, the FCC is scheduled to adopt an Order that would modify its equipment authorization rules to increase the supply of grantee codes assigned to parties applying for equipment certification.

Second, the FCC is scheduled to adopt a Fourth Report and Order and Fifth Further Notice of Proposed Rulemaking regarding use of spectrum in the 4940-4990 MHz band.

This event is scheduled for 10:30 AM at the FCC's main building located at 445 12th St., SW. This event will be held in the Commission Meeting Room, Room TW-C305. The FCC will webcast this event.

6/7. The Federal Trade Commission (FTC) announced that it brought and simultaneously settled two administrative actions against companies at which consumer data was inadvertently compromised. Both cases involved the use of peer to peer (P2P) software by employees on computers that were part of networks that contained personal information (PI).

Rep. Henry Waxman (D-CA) urged the FTC to take action of this nature as early as 2007. See, related story in this issue titled "Commentary: the Movie Industry and the FTC".

Both FTC cases, against a car dealership (Franklin Budget Car Sales, Inc.) and a debt collector (EPN, Inc.), are signed settlements, in which FTC staff prepared complaints and settlement agreements. Franklin signed on February 21, and EPN signed on March 5. The five member Commission voted to approve both actions at undisclosed times. FTC staff released these documents, and a release, on June 7.

See, administrative Complaint against Franklin, and Settlement Containing Consent Order. See also, administrative Complaint against EPN, and Settlement Containing Consent Order.

These pleadings contain little information about the actual conduct that prompted the FTC to bring these actions. In the Franklin case, the complaint states that "customers' personal information was accessed and disclosed on peer-to-peer (``P2P´´) networks by a P2P application installed on a computer that was connected to respondent's computer network".

As a result, "Information for approximately 95,000 consumers, including, but not limited to, names, Social Security numbers, addresses, dates of birth, and drivers' license numbers ... was made available on a P2P network".

In the EPN case, the complaint states that "EPN's chief operating officer was able to install a P2P application on her desktop computer, which was connected to EPN's computer network". As a result, "two files containing personal information about the client’s debtors were available on a P2P network".

These two files contained "contained personal information about approximately 3,800 consumers, including each consumer’s name, address, date of birth, Social Security number, employer name, employer address, health insurance number, and a diagnosis code".

Neither complaint discloses the P2P software involved.

The Franklin complaint is silent regarding when the violations took place. The EPN complaint discloses that EPN "disabled" the P2P program at issue in April of 2008.

Neither settlement involves fines or penalties. Both impose requirements that Franklin and EPN modify their business practices to better protect the privacy and security of PI. Neither case provides clear guidance to companies regarding if, or when, and under what circumstances they might allow P2P software to be installed on company computers.

In both actions, the FTC proceeded under Section 5 of the FTC Act. Section 5, which is codified at 15 U.S.C. § 45, provides that "Unfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce, are hereby declared unlawful."

The complaints and settlements show that the FTC proceeded under Section 5 because both businesses had adopted and released privacy policies, and then violated those policies.

The FTC proceeded against both businesses under the "deceptive" prong of Section 5. These actions shed no light upon the FTC's view as to whether or not it could proceed under the "unfair" prong if the businesses had no privacy policies, and then allowed uninformed and unsupervised use of P2P networks by employees.

For more on the subject of FTC reliance upon the unfair prong to regulate privacy, see story titled "Commentary: Unfair v. Deceptive Conduct", and related stories, in TLJ Daily E-Mail Alert No. 2,357, March 26, 2012.

In addition, since the car dealership made loans, it fell within the Gramm Leach Bliley Act's definition of "financial institution". The GLB Act regulates the privacy related practices of financial institutions. The FTC has promulgated, under the GLB Act, both Safeguard Rules, and Privacy Rules. Hence, the FTC proceeded against Franklin under the additional theories that it violated both the Safeguard Rules and Privacy Rules.

Both the Safeguard Rules and Privacy Rules are written in broad language that address safeguards, monitoring, testing, investigations, and programs. They do not address the use of P2P software.

The complaints allege, and the agreement confirm, that violations occurred in the Franklin and EPN cases. However, these documents do not provide much guidance to businesses going forward. The actions do alert businesses that installation of P2P software on any computers used by businesses might subject them to enforcement action by the FTC.

This uncertainty may contribute to a chilling effect upon the use of P2P software on computers used in connection with interstate commerce.

6/7. The movie industry has a history of hostility to P2P software. It is a means by which copyrighted movies are widely infringed, thereby causing substantial financial losses to movie companies and people who work in the movie industry.

The FTC's just announced administrative enforcement actions may have the effect of decreasing the use of P2P software, and thereby benefit the movie industry. See, related story in this issue titled "FTC Takes Action Against Two Companies for Inadvertent P2P File Sharing".

Rep. Henry Waxman (D-CA) represents a district that includes West Hollywood and Beverly Hills. His district is home to many people who work in the movie industry. Moreover, he has asked the FTC to take the type of action that it just did in the Franklin and EPN cases.

For example, Rep. Waxman sent a letter to the FTC on October 17, 2007, in which he urged the FTC to "investigate promptly recent disclosures regarding inadvertent file sharing over peer-to-peer (P2P) networks and to take steps to ensure that potential risks posed by P2P networks are incorporated into the Commission's ongoing efforts to combat identity theft." See, story titled "Representatives Write FTC Regarding Inadvertent P2P File Sharing" in TLJ Daily E-Mail Alert No. 1,658, October 19, 2007.

It may also be pertinent that the Chairman of the FTC is Jonathan Leibowitz. Prior to his appointment at the FTC, he was a Washington lobbyist employed by the Motion Picture Association of America (MPAA). See, story titled "Jonathan Leibowitz" in TLJ Daily E-Mail Alert No. 1,903, February 24, 2009.

Also, the FTC, prior to Leibowitz's tenure, took no action on the complaint submitted to the FTC on August 1, 2007 by Matt Schruers of the Computer and Communications Industry Association (CCIA). He argued  that Major League Baseball, National Football League, NBC/Universal, and others violated Section 5 of the FTC Act in connection with their alleged use of deceptive and threatening copyright notices.

The FTC sent the CCIA a letter [6 pages in PDF] on December 6, 2007, stating that "the FTC staff has determined not to recommend that the Commission take any formal action against the companies". See, story titled "CCIA Comments on FTC Letter Regarding Copyright Notices Complaint" in TLJ Daily E-Mail Alert No. 1,723, February 26, 2008.

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

The Senate will meet at 9:30 AM. It will resume consideration of the motion to proceed to S 3240 [LOC | WW], a huge bill pertaining to agriculture. It also includes provisions related to rural telecommunications, broadband and telemedicine. See, story titled "Senate to Take Up Farm Bill with Rural Broadband and Telemedicine Provisions" in TLJ Daily E-Mail Alert No. 2,391, June 6, 2012.

8:00 AM - 2:30 PM. Day two of a two day event titled "Health Privacy Summit". See, notice. Location: Georgetown Law Center, 600 New Jersey Ave., NW.

Day three of a three day conference hosted by the Department of Commerce's (DOC) National Institute of Standards and Technology (NIST) titled "Cloud Computing Forum & Workshop V". See, notice in the Federal Register, Vol. 77, No. 87, Friday, May 4, 2012, at Page 26509. Location: DOC, Hoover Building, Room __, 401 Constitution Ave., NW.

9:00 AM - 4:30 PM. Day two of a two day conference hosted by the National Institute of Standards and Technology (NIST) and the Department of Health and Human Services (DHHS) titled "Safeguarding Health Information: Building Assurance through HIPAA Security". See, notice. The price to attend is $395. Location: Ronald Reagan Building and International Trade Center.

9:30 AM. The House Judiciary Committee (HJC) will hold a hearing titled "Oversight of the United States Department of Justice". See, notice. Location: Room 2141, Rayburn Building.

9:30 AM - 2:00 PM. The Federal Communications Commission's (FCC) North American Numbering Council (NANC) will meet. Location: FCC, 445 12th St., SW.

10:00 AM. The Senate Judiciary Committee (SJC) will hold an executive business meeting. The agenda includes consideration of five judicial nominees: Robert Bacharach (to be a Judge of the U.S. Court of Appeals for the 10th Circuit), Paul Grimm (U.S. District Court for the District of Maryland), John Dowdell (USDC/NDOkla), Mark Walker (USDC/NDFl), and Brian Davis (USDC/MDFl). See, notice. Location: Room 226, Dirksen Building.

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

10:00 AM. The Joint Economic Committee (JEC) will hold a hearing. The witness will be Federal Reserve Board Chairman Ben Bernanke. Location: Room SDG-50, Dirksen Building.

11:00 AM - 12:30 PM. American Bar Association's (ABA) Section of Intellectual Property Law will host a webcast and teleconferenced panel discussion titled "International Patent Litigation: A Compare and Contrast of Patent Litigation in Different Countries". The speakers will be Koen Bijvank (Vereenigde), David Hill (Finnegan Henderson), Steve Schad (ESCO Corporation), and Stephanie Roberts (Banner & Witcoff). The price ranges from $75 to $195. See, notice.

12:00 NOON - 1:30 PM. American Bar Association's (ABA) Section of International Law will host a webcast and teleconferenced panel discussion titled "HIPAA and HITECH Act Fundamentals: What You Need to Know Now About the Privacy and Security Rules". The speakers will be Eddie Williams (Holland & Knight), Elaine Zacharakis (Zacharakis Loumbas Law), and Clay Countryman (Breazeale Sachse & Wilson). The price ranges from $95 to $195. CLE credits. See, notice.

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

Day one of a two day event hosted by the American Intellectual Property Law Association (AIPLA) titled "Legal Secretaries & Administrators Conference". For more information, contact aipla at aipla dot org or call 703-415-0780. Location: USPTO, Alexandria, VA.

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

9:30 AM. The House Ways and Means Committee's (HWMC) Subcommittee on Select Revenue Measures will hold a hearing on expiring tax provisions, including the research and development (R&D) tax credit. It is codified at 21 U.S.C. § 41, but expired on December 31, 2011. It was last extended at the end of 2010. See, story titled "Tax Bill Enacted With R&D Tax Credit Extension" in TLJ Daily E-Mail Alert No. 2,182, December 18, 2010. See, notice. Location: Room 1100, Longworth Building.

Day two of a two day event hosted by the American Intellectual Property Law Association (AIPLA) titled "Legal Secretaries & Administrators Conference". For more information, contact aipla at aipla dot org or call 703-415-0780. Location: USPTO, Alexandria, VA.

Deadline to submit comments to the U.S. Patent and Trademark Office (USPTO) in response to its Patents External Quality Survey. See, notice in the Federal Register, Vol. 77, No. 68, Monday, April 9, 2012, at Pages 21086-21087.

The National Science Foundation (NSF) National Coordination Office (NCO) for Networking and Information Technology Research and Development (NITRD) will host an event titled "National Symposium on Moving Target Research". The purpose of this symposium is to examine whether there is scientific evidence to show that moving target techniques are a substantial improvement in the defense of cyber systems. See, notice in the Federal Register, Vol. 77, No. 45, Wednesday, March 7, 2012, at Page 13656. Location: Historic Inns of Annapolis, Annapolis, MD.

Deadline to submit to the Department of Health and Human Services' (DHHS) Office of the National Coordinator for Health Information Technology (ONCHIT) nominations to its Health Information Technology Standards Committee (HITSC) and Health Information Technology Policy Committee (HITPC). See, notice in the Federal Register, Vol. 77, No. 106, Friday, June 1, 2012, at Pages 32639-32640.

9:00 AM. The Department of Commerce's (DOC) Bureau of Industry and Security's (BIS)Regulations and Procedures Technical Advisory Committee (RPTAC) will hold a partially closed meeting. See, notice in the Federal Register, Vol. 77, No. 103, Tuesday, May 29, 2012, at Pages 31567-31568. Location: DOC, Hoover Building, Room 3884, 14th Street between Constitution and Pennsylvania Avenues, NW.

10:00 AM. The Senate Judiciary Committee (SJC) will hold a hearing titled "Oversight of the Department of Justice". The witness will be Attorney General Eric Holder. The SJC will webcast this event. See, notice. Location: Room 226, Dirksen Building.

12:00 NOON. The National Press Club (NPC) will host a class titled "Social Media Trends for Social Media Managers". See, notice. The price to attend ranges from $62.50 to $125. Location: Bloomberg Room, NPC, 13th Floor, 529 14th St. NW.

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

5:00 PM. Deadline to submit speaker applications to the Consumer Electronics Association (CEA) for the 2013 International CES to be held in Las Vegas, Nevada, on January 8-11, 2013. See, notice.

6:00 - 8:15 PM. The Federal Communications Commission (FCC) will host an event titled "The FCC in the Courts". Richard Welch, FCC Deputy Associate General Counsel, will give a presentation titled "How the Agency Fared Over the Last Year". Jacob Lewis, FCC Associate General Counsel, will give a presentation titled "FCC Litigation on the Horizon". CLE credits. See, notice. The Federal Communications Bar Association (FCBA) asserts that this is an FCBA event. Location: Bingham McCutchen, 2020 K St., NW.

10:30 AM - 12:00 NOON. The Heritage Foundation (HF) will host a panel discussion titled "Export Control Reform: What's Next?". The speakers will be Patricia Cooper (Satellite Industry Association), Remy Nathan (Aerospace Industry Association), William Reinsch ( National Foreign Trade Council), Baker Spring (HF), and Derek Scissors (HF). See, notice. Free. Open to the public. Location: HF, 214 Massachusetts Ave., NE.

10:30 AM. The Federal Communications Commission (FCC) will hold an event titled "Open Meeting". See, agenda. Location: FCC, Commission Meeting Room, Room TW-C305, 445 12th St., SW.

12:00 NOON - 1:30 PM. The DC Bar Association will host a presentation titled "Impact of AIA on The Choice Between Patent and Trade Secret Protection". The speakers will be Griffith Price and Jia Lu (both of Finnegan Henderson). The price to attend ranges from $89 to $129. Reporters are barred from attending most DC Bar events. No CLE credits. See, notice. For more information, call 202-626-3488. Location: Finnegan, 901 New York Ave., NW.

12:30 - 2:00 PM. The DC Bar Association's Media Law Committee will host a closed brown bag lunch meeting to discuss media and communications law developments. Free. No CLE credits. Reporters are barred from covering this event. For more information, contact the DC Bar at 202-626-3463 or Kurt Wimmer (Covington & Burling) at kwimmer at cov dot com or Jim McLaughlin at mclaughlinj at washpost dot com. See, notice. Location: Covington & Burling, 1201 Pennsylvania Ave., NW.

8:45 AM - 2:30 PM. The U.S. China Economic and Security Review Commission will hold a hearing titled "The Evolving U.S.-China Trade & Investment Relationship". Location: Room 2118, Rayburn Building.

10:00 AM. The Senate Judiciary Committee (SJC) will hold an executive business meeting. The agenda includes consideration Brian Davis (to be a Judge of the USDC/MDFl). See, notice. Location: Room 226, Dirksen Building.

POSTPONED. 12:00 NOON - 2:00 PM. The DC Bar Association will host a presentation titled "Social Media: Legal Considerations For Corporate Counsel". The speakers will be Brent Kidwell (Jenner & Block), Paul Meyer (Towers Watson), Blair Vietmeyer (E*TRADE Financial Corporation), Michael Lowman (Jenner & Block). The price to attend ranges from free to $15. Reporters are barred from attending most DC Bar events. No CLE credits. See, notice. For more information, call 202-626-3488. Location: Jenner & Block, 1099 New York Ave., NW.

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

6:00 - 8:15 PM. The Federal Communications Bar Association (FCBA) will host an event titled "US and EU Privacy Regulation: An Overview". CLE credits. See, notice. Location: Mayer Brown, 1999 K St., NW.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) [85 pages in PDF] regarding the 800 MHz cellular service. The FCC proposes, among other things, to issue geographic area overlay licenses through competitive bidding in two stages. The FCC adopted and released this NPRM on February 15, 2012. It is FCC 12-20 in WT Docket No. 12-40. See, notice in the Federal Register, Vol. 77, No. 52, Friday, March 16, 2012, at Pages 15665-15681.