8/20. Rep. Jerrold Nadler (D-NY) released a discussion draft [9 pages in PDF] of a bill to be titled "Interim Fairness in Radio Starting Today Act of 2012", or the "Interim FIRST Act".

This is another bill regarding copyright law and the performance rights of music recording artists. Rep. Nadler states that he is concerned that recording artists do not have a performance right for their works played by terrestrial radio broadcasters. The bill recites in its findings that this is a problem. However, this bill would not create such a performance right.

This could be accomplished by amending 17 U.S.C. § 106, regarding the exclusive rights of copyright. Section 106(6) extends the performance right for sound recordings only to digital audio transmissions, thus exempting broadcasts by terrestrial radio broadcasters. Section 106(6) currently provides that "the owner of copyright under this title has the exclusive rights to do and to authorize ... in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission".

Bills have been introduced for several Congresses. None have been enacted into law, in significant part because of the opposition of the National Association of Broadcasters (NAB).

For the 111th Congress, see HR 848 [LOC | WW], the "Performance Rights Act", and S 379 [LOC | WW]. Rep. For the 110th Congress, see HR 4789 [LOC | WW] and S 2500, [LOC | WW], both of which were titled "Performance Rights Act". Nadler was a cosponsor of those House bills. See also, story titled "Performance Rights Act Reintroduced" in TLJ Daily E-Mail Alert No. 1,896, February 10, 2009.

Rather, Rep. Nadler's discussion draft would provide some changes to copyright law that Rep. Nadler asserts in a release would be an "interim step until such time as terrestrial radio pays a performance royalty for music airplay". However, nothing in the draft bill would impose any sunset or time limitation.

This bill would amend 17 U.S.C. § 114, regarding exclusive rights in sound recordings, to change the manner of compensation for artists from media that already pay for performances -- satellite,  cable and internet radio.

This draft bill recites in its findings that "Under current copyright law, literary works, musical works, dramatic works, pantomimes, choreographic works, motion pictures and other audiovisual works have a full performance right, but sound recordings do not."

Terrestrial broadcasters do not pay artists to play their recordings over the air. (Broadcasters do pay when they also stream over the internet.) In contrast, as the bill recites, "All other radio formats, such as satellite, cable and Internet radio, compensate recording artists and copyright owners for their music."

Rep. Nadler (at right) stated in his release that "Terrestrial radio companies have built into their businesses an exemption from paying a performance right".

He continued that "The lack of a performance royalty for terrestrial radio airplay is a significant inequity and grossly unfair. We can't start a race to the bottom when it comes to royalty rates and compensation for artists. Artists deserve to be paid a market-based rate for their work, just like everyone else. The Interim FIRST Act would provide artists with fair compensation for the valuable creations they share with all of us."

Dennis Wharton of the NAB stated in a release that the "NAB strongly opposes Rep. Nadler's draft bill, which fails to recognize the unparalleled promotional value of local radio airplay and which would kill jobs at America's hometown radio stations. We continue to support private, company-by-company negotiations that are driven by the free market, as was reflected by the recent deal between Clear Channel and Big Machine Label Group. We're pleased that 177 House members and 22 U.S. Senators agree that America's local radio stations should not be subjected to job-killing performance tax legislation that would divert millions of dollars to offshore record labels."

Currently, satellite and cable radio services pay less than internet services such as Pandora. This bill would raise satellite and cable up to the internet level. It would also raise what broadcasters pay for streaming.

This bill would amend 17 U.S.C. § 114(f)(2) to add a new subsection (D) that would provide that "(i) ... in the case of any entity that owns or operates one or more commercial terrestrial broadcast stations that are licensed as such by the Federal Communications Commission, or that is affiliated with an entity that owns or operates one or more such commercial terrestrial stations, and makes transmissions under a statutory license of programming transmitted over-the-air by one or more such commercial terrestrial stations, the royalty rate to be paid by such entity for such transmissions under this section and section 112(e) shall include an additional royalty fee determined by multiplying the rate otherwise applicable under this subsection (f) and section 112(e), regardless of whether such otherwise applicable rate was set by the Copyright Royalty Judges or an agreement as described in paragraph (5), by a factor to be determined by the Copyright Royalty Judges."

Also, "(ii) ... The Copyright Royalty Judges shall establish the factor described in clause (i) so that the additional royalty fee most clearly represents the royalty that would have been negotiated in the marketplace between a willing buyer and a willing seller for the public performance of sound recordings by means of over-the-air nonsubscription broadcast transmissions by affili1ated terrestrial broadcast radio stations, if a sound recording copyright owner had the exclusive right to make and authorize such transmissions of the relevant recordings."

This bill would also provide that "As to any applicable section 112(e) or 114 rate period for which royalty rates and terms have already been set as of the date of enactment of the Interim FIRST Act of 2012, a proceeding under this chapter shall be commenced as soon as practicable after such date of enactment to determine the factor described in section 114(f)(2)(D) for the portion of such period between the date of enactment of the Interim FIRST Act of 2012 and the expiration of such period. For any other section 112(e) or 114 rate period, such factor shall be determined in the proceedings otherwise contemplated by this paragraph."

And, the bill would amend subsection 114(f)(1)(B) to provide that "In establishing rates and terms for preexisting subscription services and preexisting satellite digital audio radio services, the Copyright Royalty Judges shall apply the same standards as applicable under paragraph (2)(B)".

8/2. Rep. Gerry Connolly (D-VA) introduced HR 6278 [LOC | WW], the "Data Center Optimization Act", a bill that states that its purpose is to "optimize Federal data center usage and efficiency".

It was referred to the House Oversight and Government Reform Committee. Rep. Connolly is a member. There are no cosponsors of this bill.

The Government Accountability Office (GAO) released a report [124 pages in PDF] on July 19, 2012, titled "Data Center Consolidation: Agencies Making Progress on Efforts, but Inventories and Plans Need to Be Completed".

Sen. Tom Carper's (D-DE) stated in a release on July 23, 2012, that "For too long the federal government has wasted taxpayer dollars by pouring money into unnecessary information technology (IT) infrastructure ... Data centers have been bleeding energy and money throughout the federal government and are a perfect example of inefficient IT spending."

8/2. Rep. Jim Gerlach (R-PA) and Rep. Zoe Lofgren (D-CA) introduced HR 6319 [LOC | WW], the "Startup Innovation Credit Act of 2012". On July 31, 2012, Sen. Chris Coons (D-DE), Sen. Mike Enzi (R-WY), Sen. Marco Rubio (R-FL) and Sen. Charles Schumer (D-NY) introduced S 3460 [LOC | WW], also titled the "Startup Innovation Credit Act of 2012". These bills are the same.

Section 41 of the Internal Revenue Code (IRC), 26 U.S.C. § 41, pertains to the "Credit for increasing research activities". These bills would add a new subsection 41(i) regarding "Treatment of Credit to Qualified Small Businesses".

Section 3111 of the IRC, 26 U.S.C. § 3111, pertains to employer tax rates. These bills would add a new subsection 3111(f) regarding "Credit for Research Expenditures of Qualified Small Businesses".

These bills would enable startup companies to claim a research and development (R&D) tax credit against their employment taxes, instead of their income taxes. Start ups tend not to have income tax liability, and hence the existing credit against income tax liability is of no use to them.

The existing R&D tax credit expired on December 31, 2011. It is not only in need of retroactive extension, but also modernization.

There are numerous pending bills that would extend and revise the existing R&D tax credit. See, story titled "Ways and Means Subcommittee Hearing to Address Expired R&D Tax Credit" in TLJ Daily E-Mail Alert No. 2,376, April 20, 2012.

Sen. Coons stated in a release that the R&D tax credit "has helped tens of thousands of successful American companies create jobs by incentivizing investment in innovation, but startups can’t take advantage ... Firms younger than five years old have been responsible for the overwhelming majority of our new jobs in recent years, and they are driving our nation’s economic recovery by taking risks to turn their ideas into marketable products."

The House bill was referred to the House Ways and Means Committee. Rep. Gerlach is a member. The Senate bill was referred to the Senate Finance Committee. Sen. Enzi and Sen. Schumer are members.

8/2. Rep. Kathleen Hochul (D-NY) introduced HR 6329 [LOC | WW], the "Build It in America Act of 2012", a bill to make permanent the research and development tax credit, with a protectionist component. See, Rep. Hochul's release. The bill was referred to the House Ways and Means Committee.

8/2. Rep. Richard Hanna (R-NY) introduced HR 6325 [LOC | WW], the "STEM Education Opportunity Act", a bill to create an individual tax deduction for higher education expenses in a program of study in science, technology, engineering, or mathematics (STEM). The bill was referred to the House Ways and Means Committee.

7/26. Rep. Richard Nugent (R-FL) introduced HR 6205 [LOC | WW], the "Protect and Save Act of 2012", a bill related to identity theft. It was referred to the House Ways and Means Committee.

8/21. The Federal Communications Commission's (FCC) Wireless Telecommunications Bureau (WTB) adopted and released an Order [3 pages in PDF] in its proceeding regarding the applications of Verizon Wireless (VW) and SpectrumCo, and VW and Cox TMI, for consent to assign AWS-1 licenses.

The FCC released protective orders in January designating the Joint Operating Entity (JOE) as Highly Confidential. The Public Knowledge (PK) submitted a petition [18 pages in PDF] on May 9, 2012, in which it argued that this JOE is not entitled to any confidentiality treatment by the FCC.

The just released order changes the designation of certain portions of the JOE from Highly Confidential to Confidential.

The PK's Harold Feld stated in a release on May 9 that "There is no reason for the FCC to allow Verizon, Comcast and their proposed cartel partners to keep secret the organizational details of their new organization. If this information were made public, it would be clear to everyone that this is not a 'procompetitive R&D joint venture', as the companies have claimed in their filings with the Commission ... The JOE is in reality at the center of the effort to create a new cartel."

The PK's Jodie Griffin stated in a release on August 21 that "we are glad that the new lower level of protection will allow parties that could be affected by the transaction to more comprehensively review the documents".

This proceeding is WT Docket No. 12-4.

11:00 AM - 12:30 PM. The American Bar Association (ABA) will host a webcast and telecast presentation titled "Protecting Your Intellectual Property: Best Practices for China in 2012". The speaker will be James Zimmerman (Sheppard Mullin). Prices vary. CLE credits. See, notice.

2:00 - 4:00 PM. The Small Business Administration (SBA) will host a webcast program on the Small Business Innovation Research (SBIR) and Small Business Technology Transfer Program (STTR) reauthorization act. See, notice in the Federal Register, Vol. 77, No. 151, Monday, August 6, 2012, at Page 46909.

6:00 - 9:15 PM. The DC Bar Association will host a presentation titled "Federal Lobbying 2012: A Guide to Regulation and Compliance". The speaker will be Andrew Siff (Siff & Associates). The price to attend ranges from $89 to $129. Reporters are barred from attending most DC Bar events. CLE credits. See, notice. For more information, call 202-626-3488. Location: DC Bar Conference Center, 1101 K St., NW.

Day one of a two day event hosted by the American Intellectual Property Law Association (AIPLA) titled "AIPLA Patent Prosecution Practical Patent Prosecution Training for New Lawyers". See, notice. For more information, contact aipla at aipla dot org or 703-415-0780. Location: Alexandria, VA.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to the Wireline Competition Bureau's WCB) Public Notice [23 pages in PDF] regarding expanding FCC subsidies for rural health care providers to include broadband. The FCC released this item on July 19, 2012. It is DA 12-1166 in WC Docket No. 02-60. See, notice in the Federal Register, Vol. 77, No. 144, Thursday, July 26, 2012, at Pages 43773-43780.

12:00 NOON - 1:30 PM. The DC Bar Association will host a presentation titled "Building Momentum: Advanced LinkedIn for Lawyers". The speaker will be Tasha Coleman (Upward Action). Free. No CLE credits. See, notice. For more information, call 202-626-3488. The DC Bar has a history of barring reporters from its events. Location: DC Bar Conference Center, 1101 K St., NW.

1:00 - 2:30 PM. The American Bar Association (ABA) will host a webcast and telecast panel discussion titled "The America Invents Act: The Boundaries of Prior Art". The speakers will be Steve Chang (Banner & Witcoff), Susanne Jones (O'Brien Jones), and Janet Hendrickson (Senniger Powers). Prices vary. CLE credits. See, notice.

Day two of a two day event hosted by the American Intellectual Property Law Association (AIPLA) titled "AIPLA Patent Prosecution Practical Patent Prosecution Training for New Lawyers". See, notice. For more information, contact aipla at aipla dot org or call 703-415-0780. Location: Alexandria, VA.

Day one of four of the Republican National Convention.

Deadline to submit comments to the Office of the U.S. Trade Representative (OUSTR) regarding the complaints filed with the World Trade Organization (WTO) by the US, Japan and EU against the People's Republic of China (PRC) regarding its rare earth materials export policies. See, notice in the Federal Register, Vol. 77, No. 146, Monday, July 30, 2012, at Pages 44706-44707.

Day two of four of the Republican National Convention.

Day three of four of the Republican National Convention.

9:30 AM - 1:00 PM. The Department of Commerce's (DOC) National Telecommunications and Information Administration (NTIA) will hold one in a series of meetings regarding consumer data privacy in the context of mobile applications. See, notice in the Federal Register, Vol. 77, No. 149, Thursday, August 2, 2012, Pages 46067-46068. Location: Auditorium, DOC, Hoover Building, 14th Street and Constitution Ave., NW.

12:00 NOON. The World Wide Web Consortium's (W3C) Tracking Protection Working Group will meet by teleconference. The call in number is 1-617-761-6200. The passcode is TRACK (87225).

2:00 - 4:00 PM. The Small Business Administration (SBA) will host a webcast program on the Small Business Innovation Research (SBIR) and Small Business Technology Transfer Program (STTR) reauthorization act. See, notice in the Federal Register, Vol. 77, No. 151, Monday, August 6, 2012, at Page 46909.

Day four of four of the Republican National Convention.

6:00 - 9:15 PM. The DC Bar Association will host a presentation titled "Can They Fire Me For Putting That on Facebook?". The speakers will be Diane Seltzer (Seltzer Law Firm), Julienne Bramesco (Clearspire Law Co.), and Lily Garcia (Clearspire Law Co.). The price to attend ranges from $89 to $129. Reporters are barred from attending most DC Bar events. CLE credits. See, notice. For more information, call 202-626-3488. Location: DC Bar Conference Center, 1101 K St., NW.

Deadline to submit post meeting comments to the President's National Security Telecommunications Advisory Committee (NSTAC) regarding its August 16 meeting. The agenda includes discussions of (1) the Nationwide Public Safety Broadband Network (NPSBN), (2) the DHS's National Cybersecurity and Communications Integration Center (NCCIC), and (3) the proposal to develop a separate out of band data network supporting communications among carriers, ISPs, vendors, and additional critical infrastructure owners and operators during a severe cyber incident that renders the internet unusable. See, notice in the Federal Register, Vol. 77, No. 146, Monday, July 30, 2012, at Pages 44641-44642.

Deadline to submit requests to the U.S. International Trade Commission (USITC) to testify at its September 12 hearing on the probable economic effect of providing duty free treatment for imports under the U.S.-Trans-Pacific Partnership Free Trade Agreement. See, notice in the Federal Register, Vol. 77, No. 155, August 10, 2012, at Pages 47880-47882.

8/22. Google, which owns YouTube, began operation of a web section in YouTube titled "2012 Election". Google stated in a release that this is a "channel for key political moments from now through the upcoming U.S. election day on November 6", including "live speeches from the floor of the upcoming Republican and Democratic National Conventions" and "a live stream of the official Presidential and Vice Presidential debates".

8/21. The Department of State's (DOS) Advisory Committee on International Communications and Information Policy (ACICIP) published a notice in the Federal Register that announces that it will hold a public meeting on October 2, 2012, to discuss preparations for the World Conference on International Telecommunications to be held in Dubai, UAE, on December 3-14, 2012. See, notice in the FR, Vol. 77, No. 162, August 21, 2012, at Page 50543.

8/21. The Department of Commerce's (DOC) National Telecommunications and Information Administration (NTIA) published a notice in the Federal Register (FR) that announces the requirements for the State and Local Implementation Grant Program authorized by section 6302 of the spectrum bill enacted in February of 2012. This section creates a grant program related to the creation of a nationwide public safety broadband network. See, FR, Vol. 77, No. 162, August 21, 2012, at Pages 50481-50486. This section is in Title VI of HR 3630 [LOC | WW], the "Middle Class Tax Relief and Job Creation Act of 2012". See also, stories titled "House and Senate Negotiators Reach Agreement on Spectrum Legislation", "Summary of Spectrum Bill", and "Reaction to Spectrum Bill" in TLJ Daily E-Mail Alert No. 2,339, February 17, 2012, story titled "House and Senate Pass Spectrum Bill" in TLJ Daily E-Mail Alert No. 2,340, February 18, 2012, and story titled "Obama Signs Spectrum Bill into Law" in TLJ Daily E-Mail Alert No. 2,345, February 23, 2012.

6/11. The Federal Election Commission (FEC), back on June 11, 2012, approved an Advisory Opinion [20 pages in PDF] regarding making federal campaign contributions via text messaging. Red Blue T LLC, ArmourMedia, Inc., and m-Qube, Inc. requested the AO. This AO concludes that "the proposal satisfies the recordkeeping and reporting requirements of 2 U.S.C. 432(c); conforms to the prohibition on corporate contributions at 2 U.S.C. 441b; does not implicate the forwarding requirements of U.S.C. 432(b), when factored payments are made; and satisfies the segregation requirements for commercial vendors that process political contributions." A group of 15 members of the House of Representatives submitted a letter urging the FEC to allow text message campaign contributions. They wrote that "we must find ways to enhance the role of small donors".

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