12/20. The Senate passed HR 6671 [LOC | WW] on December 20, 2012. This is a bill to revise the Video Privacy Protection Act to facilitate practices of social media web sites. See, story titled "House Passes Video Privacy Protection Act Amendments" in TLJ Daily E-Mail Alert No. 2,494, December 19, 2012. This bill is now ready for President Obama's signature.

12/19. The Senate amended and passed HR 6029 [LOC | WW], the "Foreign and Economic Espionage Penalty Enhancement Act of 2012", on December 19, 2012. The House passed this bill on August 1, 2012.

The House version of this bill would increase the maximum penalty for economic espionage, which is codified at 18 U.S.C. § 1831, from 15 to 20 years. It would also increase the maximum fine from $500,000 to $5,000,000. It would also increase the maximum fine for corporations and other organizations. The statute currently provides that "Any organization that commits any offense described in subsection (a) shall be fined not more than $10,000,000." HR 6029 provides that the maximum fine is "not more than the greater of $10,000,000 or 3 times the value of the stolen trade secret to the organization, including expenses for research and design and other costs of reproducing the trade secret that the organization has thereby avoided".

The Senate bill deletes the provision regarding maximum prison terms.

See, stories titled "Representatives Introduce Bill to Increase Penalties for Economic Espionage" in TLJ Daily E-Mail Alert No. 2,405, July 9, 2012, and "House Passes Bill that Increases Penalties for Economic Espionage" in TLJ Daily E-Mail Alert No. 2,418, August 2, 2012.

12/20. The House passed House Report No. 112-705, the conference report on HR 4310 [LOC | WW], the "National Defense Authorization Act for Fiscal Year 2013", by a vote of 315-107, late on Thursday, December 20. See, Roll Call No. 645.

See also, entire conference report [1,613 pages in PDF], and Section 1085, regarding "Sense of the Congress Regarding Spectrum".

The Senate is scheduled to consider this conference report on Friday, December 21.

There are many technology related provisions in this bill.

• Section 244 requires a report on Air Force cyber and information technology research investments.
• Sections 931-941 pertain to Department of Defense (DOD) cyber security.
• Section 1061 requires a study on DOD electronic warfare strategy, and Section 242 requires a study of Marine Corps electronic warfare capabilities.
• Section 1079 pertains to coordination for computer network operations.
• Section 1085 pertains reallocation and sharing of federal spectrum.
• Sections 1261-1267 pertain to the export of satellites and related maters.
• Section 1271 amends the requirements for the annual report on the People's Republic of China, with new language regarding cyber and electronic warfare capabilities.

Spectrum. Section 1085 provides that "It is the sense of Congress that ... the United States mobile communications industry is a significant economic engine" and that "there is a pressing need for additional spectrum for mobile broadband services".

It is also "the sense of Congress that ... consideration should be given to both the supply of spectrum for licensed networks and for unlicensed devices".

It is also "the sense of Congress that ... the long-term solution must include reallocation and sharing of Federal Government spectrum for private sector use".

Finally, it is the sense of the Congress that all interested parties continue the "collaborative efforts between industry and government stakeholders that have been launched by the National Telecommunications and Information Administration to assess and recommend practical frameworks for the development of relocation, transition, and sharing arrangement and plans for 110 megahertz of Federal spectrum in the 1695–1710 MHz and the 1755–1850 MHz bands".

See, the NTIA's March 2012 report [155 pages in PDF] titled "An Assessment of the Viability of Accommodating Wireless Broadband in the 1755 - 1850 MHz Band". See also, story titled "NTIA Releases Report on 1755-1850 MHz Band" in TLJ Daily E-Mail Alert No. 2,358, March 27, 2012.

PRC Cyber and Electronic Warfare. This conference report, at Section 1271, would add the following language to the existing requirements for an annual report on the People's Republic of China (PRC): "Developments in China's asymmetric capabilities, including its strategy and efforts to develop and deploy cyberwarfare and electronic warfare capabilities, details on the number of malicious cyber incidents originating from China against Department of Defense infrastructure, and associated activities originating or suspected of originating from China."

12/20. Sen. Ron Wyden (D-OR) introduced S __ [7 pages in PDF], the "Data Cap Integrity Act of 2012".

This bill would provide that internet access service providers must obtain permission from the Federal Communications Commission (FCC) before they can impose a "data cap".

It would require the FCC to write and enforce rules that regulate internet access service providers' service and pricing plans.

It provides that "An Internet service provider may not impose a data cap on the consumers of the provider unless the provider is certified by the Commission".

This bill will certainly not be enacted in the few remaining days of the 112th Congress. It is unlikely to be enacted in the 113th Congress. Sen. Wyden has likely introduced this bill to influence public debate about usage based pricing (UBP) for consumer broadband access, and to influence business practices and pricing plans.

Service providers spend immense amounts to build and maintain networks and provide service. They sell service to customers. This entails pricing. However, broadband access is unusual in that it is currently largely a fixed price service. In market economies consumers pay for almost all goods and services according to how much they consume. This holds for things ranging from gasoline and groceries to legal services.

UBP limits the amount that consumers consumer, and is fundamental to the allocation of goods and services by markets.

The bill would also require FCC permission to regulate any "fee-based structure with the purpose of limiting the bits a consumer of an Internet service provider may download". But then, limiting consumption is what UBP does. The bill thus verges on regulating any UBP for broadband access.

Under this bill, the FCC could approve data caps or other forms of UBP. But, the regulatory criteria set forth in the bill are vague. The bill sets a reasonableness standard. It also employs meaningless phrases, such as "Smart Data Caps Instead of Dumb Ones".

Some interests groups, such as the Public Knowledge (PK) have opposed data caps. See for example, April 23, 2012, paper titled "Know Your Limits: Considering the Role of Data Caps and Usage Based Billing in Internet Access Service". That paper praised flat rate price plans, and criticized both UBP plans and data caps on flat rate plans. See also, story titled "Public Knowledge Paper Urges FCC Oversight of BIAS Pricing Plans" in TLJ Daily E-Mail Alert No. 2,380, April 25, 2012.

Others, such as the Phoenix Center for Advanced Legal & Economic Public Policy Studies and the National Cable and Telecommunications Association (NCTA) have defended UBP. See, May 23, 2012 paper [6 pages in PDF] titled "A Most Egregious Act? The Impact on Consumers of Usage-Based Pricing", and story titled "Phoenix Center Defends BIAS UBP" in TLJ Daily E-Mail Alert No. 2,385, May 23, 2012.

See also,  paper [18 pages in PDF] titled "The Economics of Usage-Based Pricing in Local Broadband Markets"., and story titled "Paper Argues that Broadband UBP Would Promote Consumer Welfare and Encourage Investment" in TLJ Daily E-Mail Alert No. 2,495, December 20, 2012.

Sen. Wyden's bill would institute FCC regulation of "data caps". Data caps are inseparable from pricing. The concept of data caps is that the service provider offers broadband at a fixed price per month, provided that the user does not exceed a certain level of consumption. If the consumer exceed that level, the price increases.

However, Sen. Wyden has introduced a bill that attempts to separate the concept of consumption from the concept of pricing. The word "price" appears nowhere in the bill. Neither does the phrase "usage based pricing". The definition of "data cap" makes no reference to prices, or even charging of consumers, as if service providers gave service away for free.

Thus, Sen. Wyden, and his allies in this debate, may henceforth assert they are not advocating price regulation.

Sen. Wyden (at right) stated in a release that "Americans are increasingly tethered to the Internet and connecting more devices to it, but they don’t really have the tools to effectively manage data consumption across their networks ... Data caps create challenges for consumers and run the risk of undermining innovation in the digital economy if they are imposed bluntly and not designed to truly manage network congestion."

This bill also states that "It is the sense of Congress" that the FCC "should continue its work to ensure that consumers of Internet services are clearly and consistently provided information that describes the services they are purchasing, including -- (1) the cost of the services they are purchasing; (2) the a rate of the upload and download speed that the consumer is paying for; (3) service limits the Internet service provider establishes for purposes of network management, including bandwidth throttling or rate limiting; (4) contract term; and (5) legal and privacy policies."

The NCTA stated in a release that "Regrettably, this ill-conceived legislation ignores the substantial pro-consumer benefits of usage-based pricing. While congestion management may be one effect of tiered pricing, the primary benefits are consumer choice and fairness. Usage tiers give consumers more choices to better fit their bandwidth needs, and they rightly distinguish between low-volume users and high-volume users as is true for many products and services."

See also, PK release praising this bill.

12/20. The Office of the U.S. Trade Representative (OUSTR) issued a release that summarizes representations made by the People's Republic of China (PRC) in the closed meetings of the U.S.-China Joint Commission on Commerce and Trade (JCCT) on December 18 and 19, 2012.

This release does not disclose what commitments the US made to the PRC.

Software Use by State Owned Enterprises. The OUSTR stated that "China confirmed that it requires state-owned enterprises under the authority of the China Banking Regulatory Commission and central state-owned enterprises directly supervised by the State-Owned Assets Supervision and Administration Commission of the State Council to purchase and use legitimate software, including but not limited to operating system and office suite software."

Robert Holleyman, head of the Business Software Alliance (BSA), commented in a release that "We're glad China has made clear it is committed to curbing illegal software use in its state-owned enterprises ... Piracy has been a persistent problem throughout the Chinese economy, but this represents a real opportunity to start bringing it under control. State-owned enterprises account for a huge share of China's industrial output. More effectively upholding intellectual property laws in that sector will make a big difference. But the challenge will be effectively verifying compliance."

Compelled Technology Transfers. The OUSTR stated that "China reaffirmed that technology transfer and technology cooperation are the autonomous decisions of enterprises. China will not make this a precondition for market access. If departmental or local documents contain language inconsistent with the above commitment, China will correct them in a timely manner."

It added that "Article 21 of China's 2007 MLPS Administrative Measures specifies an indigenous intellectual property requirement for the selection of information security products for level three and above with the objective of protecting national information security. China will conduct a process to revise this measure and seek the views of all parties, including through dialogue with the United States."

This PRC Multi Level Protection Scheme, or MLPS, has the effect of restricting sales of IT security products by US and other foreign businesses in the PRC.

Finally, the OUSTR stated that "The United States and China will maintain communication on U.S. concerns regarding whether China’s High and New Technology Enterprise Certification Administration Measures and related rules apply equally to Chinese and foreign invested enterprises or contain technology transfer or intellectual property localization requirements, including through the U.S.-China Innovation Dialogue."

Encryption. The OUSTR stated that "China agreed it will not mandate any particular encryption standard for commercial 4G Long Term Evolution telecommunications equipment."

Regulatory Processes. The OUSTR stated that "China confirmed that it will take the views of all stakeholders into full consideration in regard to the regulation of information technology and telecommunications hardware, operating systems, applications, app stores, and other related services.  The United States and China will continue to discuss this issue at the working level as China works to revise and improve the current draft."

Trademarks. "The United States and China agree to continue close communications and exchanges through the existing channels to promote the work in developing solutions to the issue of bad faith trademark registrations."

Cyber Security. "The United States and China agreed to hold a technical dialogue in Spring 2013 to discuss approaches to improving cybersecurity in critical infrastructure."

See also, story titled "JCCT Meeting Concludes" in TLJ Daily E-Mail Alert No. 2,495.

The House will meet in pro forma session only. It will next meet for legislative business after Christmas.

The Senate will meet at 1:00 PM. It may consider House Report No. 112-705, the conference report to accompany HR 4310 [LOC | WW], the "National Defense Authorization Act for Fiscal Year 2013".

Deadline to submit requests to participate in the U.S. Patent and Trademark Office (USPTO) January 11, 2013 roundtable on the possibility of changing USPTO rules of practice to require the disclosure of real party in interest information during patent prosecution and at certain times post-issuance. See, notice in the Federal Register, Vol. 77, No. 227, November 26, 2012, at Pages 70385-70389. See also, story titled "USPTO to Host Roundtable on Requiring Real Party in Interest Disclosures" in TLJ Daily E-Mail Alert No. 2,483, December 5, 2012.

EXTENDED TO JANUARY 25. Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) [205 pages in PDF] regarding incentive auctions. The FCC adopted this NPRM on September 28, and released the text on October 2. It is FCC 12-118 in Docket No. 12-268. See, notice in the Federal Register,  Vol. 77, No. 225, November 21, 2012, at Pages 69933-69992. See also, stories titled "FCC Adopts NPRM on Incentive Auctions" and "FCC Adopts Spectrum Aggregation NPRM" in TLJ Daily E-Mail Alert No. 2,455, October 1, 2012. See, extension notice in the Federal Register, Vol. 77, No. 239, December 12, 2012, at Page 73969.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Public Notice (PN) regarding implementation of Phase II of the Mobility Fund, which pertains to universal service fund subsidies for mobile broadband. The FCC released this PN on November 27, 2012. It is DA 12-1853 in WC Docket No. 10-90 and WT Docket No. 10-208.  See, notice in the Federal Register, Vol. 77, No. 238, December 11, 2012, at Pages 73586-73589.

The House will not meet.

The Senate will not meet.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) [50 pages in PDF] regarding spectrum aggregation limits and analyzing spectrum holdings. The FCC adopted and released this item on September 28, 2012. It is FCC 12-119 in WT Docket No. 12-269. See, notice in the Federal Register Vol. 77, No. 195, October 9, 2012, at Pages 61330-61350. See also, TLJ story titled "FCC Adopts Spectrum Aggregation NPRM" in TLJ Daily E-Mail Alert No. 2,455, October 1, 2012.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) [18 pages in PDF] regarding the amateur radio service. The FCC adopted this NPRM on October 1, 2012, and released the text on October 2. It is FCC 12-121 in WT Docket Nos. 12-283 and 09-209. See, notice in the Federal Register, Vol. 77, No. 206, October 24, 2012, at Pages 64947-64949.

Christmas. This is a federal holiday. See, OPM list of 2012 federal holidays.

221st Birthday of Charles Babbage.

EXTENDED TO JANUARY 7. Deadline to submit comments to the Federal Communications Commission (FCC) in response to its November 1 Public Notice (PN) seeking updated information and comment on review of hearing aid compatibility regulations. This PN is DA 12-1745 in WT Docket No. 10-254. See, November 27 extension Public Notice (DA 12-1898) and extension notice in the Federal Register, Vol. 77, No. 234, December 5, 2012, at Pages 72294-72295.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) [21 pages in PDF] regarding applications and notifications from foreign carriers or affiliates of foreign carriers for entry into the U.S. market for international telecommunications services and facilities under section 214 of Communications Act. This pertains to the effective competitive opportunities test or ECO Test. The FCC adopted this NPRM on October 10, and released the text on October 11. It is FCC 12-125 in IB Docket No. 12-299. See, notice in the Federal Register, Vol. 77, No. 227, November 26, 2012, at Pages 70400-70407.

Deadline to submit comments to the Federal Communications Commission (FCC) in response to its Public Notice (PN) [7 pages in PDF] regarding hearing aid compatibility of wireless handsets. This PN is DA 12-1745 in WT Docket No. 10-254. See, notice in the Federal Register, Vol. 77, No. 227, November 26, 2012, at Pages 70407-70409.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its December 3, 2012 Public Notice (PN) that seeks comments on the FCC Media Bureau's November 14, 2012 report [121 pages in PDF] regarding regulation of media ownership. The December 3 PN is DA 12-1946. The November 14 report is DA 12-1667. See also, notice in the Federal Register, Vol. 77, No. 237, Monday, December 10, 2012, at Pages 73461-73462, and story titled "Sen. Sanders and Others Urge FCC to Continue Ancient Newspaper Broadcast Cross Ownership Rule" in TLJ Daily E-Mail Alert No. 2,484, December 6, 2012.

No events listed.

109th birthday of John von Neumann.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) [42 pages in PDF] regarding disability access to televised emergency information. This NPRM is FCC 12-142 in MB Docket No. 12-107. The FCC adopted it on November 16, and released the text on November 19. See, notice in the Federal Register, Vol. 77, No. 229, November 28, 2012, at Pages 70970-70987.

No events listed.

New Year's Day. This is a federal holiday. See, OPM list of 2013 federal holidays.

12/20. The American Society of Media Photographers (ASMP) and other groups that represent photographers and visual artists issued a statement regarding the terms of service (TOS) announced by Facebook's Instagram on December 17, 2012.

See, story titled "Facebook's New Instagram Terms Affect Users' Privacy and Proprietary Interests" in TLJ Daily E-Mail Alert No. 2,493, December 18, 2012. See also, Facebook Instagram statement of December 20, 2012.

The ASMP, Professional Photographers of America (PPA), National Press Photographers Association (NPPA), Picture Archive Council of America (PACA), American Photographic Artists (APA) and Graphic Artists Guild (GAG) wrote in this statement that they "have received numerous objections regarding the proposed change to Instagram's terms of use."

They wrote that "The terms provide Instagram with a perpetual right to sell users' content without payment or notification, and requires the content owner to represent and warrant to Instagram that Instagram's use will not violate any third party rights, including publicity and privacy rights. We are pleased that Instagram is listening to the complaints and we are willing to work with them and review any proposed terms to avoid new terms that are confusing or misleading. For example, it is unreasonable to expect any content creator to have obtained releases from third parties depicted in the content, or to indemnify Instagram for any third party rights for any commercial use of the content."

They added that "even if a service states that the content owner retains copyright to content uploaded, the undersigned visual art associations object to terms of use which require users to grant the service provider with broad perpetual rights in the content that exceed the rights necessary for the user to enjoy the service, and in particular any grant of commercial use to either the service provider or any third party which may violate third party publicity rights."

They concluded that "Any grant of rights to commercialize photographs without informed consent of the creator and/or payment violates the norms of this community, including the rights of photographers, artists and their licensing representatives under our copyright system, as well as the rights of third parties."

12/20. The Executive Office of the President (EOP) released a document titled "National Strategy for Information Sharing and Safeguarding".

12/20. The U.S. Court of Appeals (11thCir) issued its opinion [31 pages in PDF] in Miller's Ale House v. Boynton Carolina Ale House, a case involving common law trademark, trade dress, Section 43 of the Lanham Act, and copyright. The Court of Appeals affirmed the District Court's summary judgment for Boynton Carolina. This case is Miller's Ale House, Inc. v. Boynton Carolina Ale House, LLC, U.S. Court of Appeals for the 11th Circuit, App. Ct. No. 10-15140, an appeal from the U.S. District Court for the Southern District of Florida, D.C. No. 9:09-cv-80918-KAM. Judge Tjoflat wrote the opinion of the Court of Appeals, in which Judges Martin and Robert Dawson (USDC/WDArk sitting by designation) joined.

12/20. Geoffrey Manne and Berin Szoka of the Tech Freedom wrote a piece titled "Time for Congress to Cancel the FTC’s Section 5 Antitrust Blank Check" that was published in the Technology Liberation Front. They wrote that "High-tech companies are particularly likely to find themselves the targets of Section 5 sabre-rattling. Cutting-edge companies are often antitrust test-cases because technological innovation goes hand-in-hand with innovations in business practices, from consumer pricing to “coopetition” partnerships between rivals. They’re more likely to settle rather than litigate because they’re terrified of squandering money, investor goodwill and management time on litigation -- lest, like Microsoft, they fall behind their rivals even as they are demonized as rapacious monopolists in the press."

12/20. The Federal Trade Commission (FTC) granted early termination on December 19, 2012 of the HSR waiting period for two transactions: (1) Cisco Systems and Meraki, and (2) Citrix Systems and Zenprise. See, FTC notice.

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