5/15. The Federal Communications Commission (FCC) adopted and released a Notice of Proposed Rulemaking (NPRM) that once again proposes rules for the regulation of the network management practices of broadband internet access service (BIAS) providers.

The Commission divided 3-2 along party lines, as it did when it adopted rules in 2010. The U.S. Court of Appeals (DCCir) vacated the key parts of those rules. Tom Wheeler, Mignon Clyburn and Jessica Rosenworcel supported this NPRM. Ajit Pai and Michael O'Reilly opposed it.  Representatives and Senators also divided along party lines.

The deadline to submit initial comments is July 15, 2014. The deadline to submit reply comments is September 10, 2014.

Summary. This NPRM includes the text of proposed rules. These would reinstate much of the text contained in the rules adopted in December of 2010. See, December 2010 Report and Order (R&O) [194 pages in PDF]. See also, related story in this issue titled "Summary of the FCC's Proposed Net Neutrality Rules".

The asserted authority for these rules remains Section 706 of the Communications Act, which is codified at 47 U.S.C. § 1302. This section merely contains the policy statement that the FCC and state commissions "shall encourage the deployment on a reasonable and timely basis of advanced telecommunications capability".

However, the NPRM asks for comments on the alternative approach of reclassifying BIAS as a Title II (common carrier) service.

The 2010 rules banned the undefined practice of "discrimination". The Court of Appeals vacated that part of the 2010 order, but suggested that the FCC might have authority to regulate commercially unreasonable practices by BIAS providers without reclassification. See, January 14, 2014 opinion in Verizon v. FCC, and December 4, 2012 opinion in Cellco Partnership v. FCC, which upheld the FCC's data roaming rules, and created a "commercially reasonable" standard.

The new rules do ban commercially unreasonable practices, but provide no definition or explanation of what this means. The proposed rules not state, for example, whether and when pay for priority agreements between BIAS providers and edge providers are commercially unreasonable practices. See also, related story in this issue titled "Net Neutrality NPRM and Pay for Priority Agreements".

The 2010 rules banned certain blocking. The Court of Appeals also vacated that. The new rules reinstate the vacated rules.

The 2010 rules imposed certain disclosure requirements. The Court of Appeals affirmed that. The new rules would expand the data disclosure mandates imposed upon BIAS providers, to put the public on notice regarding the nature of their services, and their business practices. The rules label this "transparency".

Transparency, in the context of government regulation, entails written disclosure of the rules in a manner that puts the public on notice regarding what is or is not prohibited. To the extent that these rules are full of undefined terms of uncertain meaning, the FCC is itself failing to act with transparency.

The proposed rules would impose a less regulatory regime for wireless BIAS than for fixed BIAS. The ban on commercially unreasonable practices would only applies to fixed BIAS providers, and the ban on blocking would be applied in a less burdensome manner for wireless BIAS providers.

Many Congressional Republicans criticized the FCC for once again pursuing an unnecessary regulatory regime. In contrast, many Congressional Democrats praised the FCC for promoting an open internet. Some of these also urged the FCC to go further and regulate BIAS providers as common carriers.

FCC Commissioners and Members of Congress offered  vastly different interpretations of this FCC NPRM.

FCC Chairman Tom Wheeler (at right) wrote in his statement that "Today we take another step in what has been a decade -- long effort to preserve and protect the Open Internet. Unfortunately, those previous efforts were blocked twice by court challenges by those who sell Internet connections to consumers. Today this agency moves to surmount that opposition and to stand up for consumers and the Open Internet."

FCC Commissioner Ajit Pai wrote in his statement that "A dispute this fundamental is not for us, five unelected individuals, to decide. Instead, it should be resolved by the people’s elected representatives, those who choose the direction of government -- and those whom the American people can hold accountable for that choice. I am therefore disappointed that today, rather than turning to Congress, we have chosen to take matters into our own hands. It is all the more disappointing because we have been down this road before. Our prior two attempts to go it alone ended in court defeats. Even with the newfangled tools the FCC will try to pull out of its legal grab-bag, I am skeptical that the third time will be the charm."

Pai argued that whether the FCC relies on Title II or Section 706, the consequence will be to "wreak havoc on the Internet economy".

He lamented that "we are going to act like our own mini-legislature" and "usurp Congress's role".

Another view would be that it is the Congress and President who have constituted the FCC to act in a legislative manner. It is not usurpation. It is delegation. It is hard to pass a bill. There are not enough votes to pass a net neutrality act. Proponents have tried and failed many times. Yet, most House and Senate Democrats, and President Obama, favor some sort of net neutrality regime. The FCC is acting as their agent, not their usurper, doing for them what they cannot do through the Constitutionally ordained legislative process. Congressional Republicans employed the FCC is a similar manner in other rule making proceedings during the Bush administration.

The White House news office released a statement that once again discloses that President Obama does not view the FCC as an independent expert agency. It states that "we will carefully review their proposal", and that "we are pleased to see that" Chairman Wheeler "is keeping all options on the table." This statement concludes that "The President ... will consider any option that might make sense."

Congressional Statements. Sen. John Rockefeller (D-WV), Chairman of the Senate Commerce Committee (SCC), stated in a release that "The FCC took an important step forward today to preserve an open Internet. The American people do not care what magic words the FCC uses to assert its authority, they just want the assurance that the Internet will remain free and open. That is why I am glad that all options are on the table, including Title II. It is critical for the FCC to use its full authority to reinstate these critical consumer protections for the Internet."

Sen. John Thune (R-SD), the ranking Republican on the SCC, and Sen. Mitch McConnell (R-KY) and the rest of the Senate Republican leadership, sent a letter to FCC Chairman Wheeler on February 13 in which they opposed this NPRM.

Sen. Thune (at right) "Unfortunately, you have chosen to have the FCC again undertake a politically corrosive rulemaking, relying upon new and untested court-defined powers rather than upon clear Congressional intent and statutory authority."

They continued that "Of even greater concern would be using Title II of the Communications Act to regulate broadband, which some voices have called for in recent days. So-called ``net neutrality´´ restrictions are unnecessary, but using Title II reclassification to impose them would create tremendous legal and marketplace uncertainty and would undermine your ability to effectively lead the FCC."

Rep. Fred Upton (R-MI) and Rep. Greg Walden (R-OR), the Chairman of the House Commerce Committee (HCC) and the HCC's Subcommittee on Communications and Technology (SCT), stated in a joint release that "Free from regulation and government meddling, the Internet as we know it has thrived. Sadly, these unnecessary rules the commission proposed today will have a chilling effect on job creation and innovation without any corresponding consumer benefit. These rules are a solution in search of a problem. Worse still, any attempt to reclassify broadband Internet embarks on a worrisome course for its future ... With so much at stake, Chairman Wheeler has ignored the bipartisan congressional calls for caution."

Rep. Anna Eshoo (D-CA), the ranking Democrat on the HCC's SCT, stated in a release that "the proposed rules must be strong enough to prevent online gatekeepers from creating fast and slow lanes, and stand on strong legal ground to avoid yet another round of legal challenges." She added that "I specifically welcome the Commission's consideration of a stronger legal framework -- Title II -- that reclassifies broadband as a common carrier."

Proponents of Title II Common Carrier Regulation. Ed Black, head of the Computer and Communications Industry Association (CCIA), stated in a release that "We appreciate that the Commission has kept an open mind about the best way forward in terms of a legal framework for guarding Internet openness. Wheeler called the Internet a national asset that he will not allow to be compromised. We hope that strong verbal commitment indicates the FCC is ready to in good faith explore all its options including its authority under Title II of the Communications Act to protect the Open Internet."

Michael Weinberg of the Public Knowledge (PK) stated in a release that "The FCC’s proposal still falls well short of real net neutrality rules. It would create a two-tier internet where “commercially reasonable” discrimination is allowed on any connections that exceed an unknown “minimum level of access” defined by the FCC. A two-tier internet is anathema to a truly open internet, and rules under section 706 authority are insufficient to prevent harmful paid prioritization."

He added that "only robust net neutrality rules that prevent paid prioritization, grounded in clear Title II authority, will suffice. Any rules that allow for harmful discrimination cannot truly be called net neutrality. And any rules based on creaky legal authority are just a waste of everyone's time."

Weinberg also wrote a short piece on May 16 titled "How The FCC's Proposed Fast Lanes Would Actually Work".

Candace Clement of the Free Press stated in a release that "the rules pay lip service to the idea of the open Internet while proposing solutions that would create a two-tiered Internet with fast lanes for those who can afford it -- and dirt roads for the rest of us." She added that "the FCC needs to reclassify broadband providers as common carriers under Title II".

Gabe Rottman of the American Civil Liberties Union (ACLU) stated in a release that "This proposed rule leaves the individual at the mercy of an increasingly concentrated broadband market, in which the big players will be able to act as gatekeepers for online speech, deciding what gets seen and when. Fortunately, the FCC left the door open to fix this problem by reclassifying broadband internet service as what it really is: a public utility, or in legal terms, a `common carrier,´ which we will continue to vigorously advocate for. This is a First Amendment issue because if broadband service providers are allowed to slow or block some content at will, they will be able to stifle the speech of internet users."

BIAS Providers. BIAS providers condemned the idea of subjecting BIAS to common carrier regulation.

Michael Powell, head of the National Cable & Telecommunications Association (NCTA) stated in a release that "we stand ready to work constructively with the FCC and other stakeholders -- as we did in 2010 -- to develop a balanced approach that protects the open Internet while fostering continued investment and innovation in America’s broadband networks. But as we do so, we will continue to reiterate our unwavering opposition to any proposals that attempt to reclassify broadband services under the heavy-handed regulatory yoke of Title II. Treating broadband as a utility-like Title II service would reverse years of settled precedent, dry up investment in broadband deployment and network upgrades, and result in protracted litigation and marketplace uncertainty."

Walter McCormick, head of the US Telecom, stated in a release that this NPRM "maps a path of questions and proposals that raise significant issues for the Internet and our Internet economy. We fully support a broad public inquiry on how best to maintain and improve an open and transparent Internet, and our industry remains firmly committed to open Internet principles. But we believe that even raising the spectre of regulation under Title II is ill-advised. The robust investment and rapid innovation that characterizes the Internet today exists precisely because prior administrations -- both Democratic and Republican -- have recognized the importance of keeping 19th century regulation away from 21st century technology. We believe today’s proceeding will lead to a renewed recognition of the essential role that light-touch regulation has played in creating the world’s leading Internet economy."

Steve Largent, head of the CTIA Wireless Association stated in a release that "The defining characteristics of wireless broadband are that it is fast-evolving, still-developing, and robustly competitive, and we urge policymakers to not impede the wireless industry's virtuous cycle of investment and innovation."

Largent continued that "wireless remains inherently different from other forms of broadband, whether considering that spectrum needed to fuel wireless broadband is finite, the additional network management required to provide a high quality experience in a mobile environment or the numerous competitive choices available for mobile broadband consumers. In fact, 98 percent of Americans have at least three or more providers to choose from. While we will carefully review the Commission’s Notice of Proposed Rulemaking, we are deeply concerned about proposals that would impose anachronistic Title II regulation on any broadband Internet access offerings. Rotary-phone era regulation has no place applying to next-generation, wireless broadband services and would deter investment in network infrastructure, inhibit innovation and undercut U.S. competitiveness, all to the detriment of American consumers."

Comcast is currently bound by all of the FCC's 2010 rules. It made a commitment to that effect during the FCC's review of its merger with NBCU. It has offered to extend that commitment in connection with its pending merger with Time Warner Cable.

Comcast's David Cohen stated in a release that the 2010 rules "struck the appropriate balance", but that "any proposal to reclassify broadband Internet access as a telecommunications service subject to Title II of the Communications Act would spark massive instability, create investor and marketplace uncertainty, derail planned investments, slow broadband adoption, and kill jobs in America."

AT&T's Jim Cicconi stated in a release that AT&T supported the FCC's 2010 rules, but "Going backwards 80 years to the world of utility regulation would represent a tragic step in the wrong direction. Utility regulation would strangle investment, hobble innovation, and put government regulators in charge of nearly every aspect of Internet-based services."

Randal Milch of Verizon, which successfully challenged the FCC's 2010 rules, stated in a release that "one thing is clear: For the FCC to impose 1930s utility regulation on the Internet would lead to years of legal and regulatory uncertainty and would jeopardize investment and innovation in broadband."

This NPRM is FCC 14-61 in GN Docket No. 14-28.

5/15. The following is a summary of the rules proposed by the Federal Communications Commission's (FCC) May 15, 2014 Notice of Proposed Rulemaking (NPRM), with comparisons to the rules adopted in December of 2010.

Purposes. The 2010 rules stated that "The purpose of this Part is to preserve the Internet as an open platform enabling consumer choice, freedom of expression, end-user control, competition, and the freedom to innovate without permission."

The proposed new rules provide a revised version of this statement. The old reference to preserving the internet is changed to protecting and promoting the internet. Also, the new rules add a reference to encouragement of deployment and investment.

The statement of purpose in the just proposed rules is a follows (with changes and additions shown in red): "The purpose of this Part is to protect and promote the Internet as an open platform enabling consumer choice, freedom of expression, end-user control, competition, and the freedom to innovate without permission, and thereby to encourage the deployment of advanced telecommunications capability and remove barriers to infrastructure investment.

Mandatory Disclosures. The proposed rules would impose expanded "Transparency" requirements on BIAS providers, requiring that they make certain disclosures to the public. The new rules would impose many increased disclosure requirements, both regarding the content of disclosures, and timeliness.

The 2010 rules provided that "A person engaged in the provision of broadband Internet access service shall publicly disclose accurate information regarding the network management practices, performance, and commercial terms of its broadband Internet access services sufficient for consumers to make informed choices regarding use of such services and for content, application, service, and device providers to develop, market, and maintain Internet offerings."

The just proposed rules state that BIAS providers "shall publicly disclose accurate information regarding the network management practices, performance, and commercial terms ... in a manner tailored (i) for end users to make informed choices regarding use of such services, (ii) for edge providers to develop, market, and maintain Internet offerings, and (iii) for the Commission and members of the public to understand how such person complies with the requirements described in" the proposed rules regarding "No Blocking" and "No Commercially Unreasonable Practices".

More specifically, the proposed rules require BIAS providers to disclose "meaningful information regarding the source, timing, speed, packet loss, and duration of congestion". Moreover, BIAS providers must disclose "in a timely manner ... when they make changes to their network practices as well as any instances of blocking, throttling, and pay-for-priority arrangements, or the parameters of default or ``best effort´´ service as distinct from any priority service."

The new rules add the requirement that BIAS providers disclose "timing, speed, packet loss, and duration of congestion" data. The new rules also add references to "edge providers", "throttling", "pay-for-priority arrangements", or "default" or "priority service".

However, the proposed rules do not define the term "throttling". Nor does the discussion in the NPRM provide a definition or explanation. However, the NPRM does seek comments on "throttling".

Restrictions on Blocking by Fixed and Mobile BIAS Providers. The just released proposed rules regarding blocking are not changed from the 2010 rules. (The Court of Appeals vacated the 2010 blocking rule.) Moreover, the definitions of fixed and mobile BIAS remain unchanged. However, the new rules add a definition of blocking.

First, the rule for fixed BIAS providers is as follows: "A person engaged in the provision of fixed broadband Internet access service, insofar as such person is so engaged, shall not block lawful content, applications, services, or non-harmful devices, subject to reasonable network management."

Second, the rule for mobile BIAS providers is as follows: "A person engaged in the provision of mobile broadband Internet access service, insofar as such person is so engaged, shall not block consumers from accessing lawful websites, subject to reasonable network management; nor shall such person block applications that compete with the provider’s voice or video telephony services, subject to reasonable network management."

A fixed BIAS provider is one "that serves end users primarily at fixed endpoints using stationary equipment. Fixed broadband Internet access service includes fixed wireless services (including fixed unlicensed wireless services), and fixed satellite services." (Parentheses in original.)

A mobile BIAS provider is one "that serves end users primarily using mobile stations".

The new rules provide the following definition of the term "block": "The failure of a broadband Internet access service to provide an edge provider with a minimum level of access that is sufficiently robust, fast, and dynamic for effective use by end users and edge providers."

The 2010 rules made no reference to "edge provider". The new rules reference edge providers in both the mandatory disclosures section, and in the definition of blocking, which in turn affects the section that regulates blocking. The new rules define "edge provider" as "Any individual or entity that provides any content, application, or service over the Internet, and any individual or entity that provides a device used for accessing any content, application, or service over the Internet."

Unreasonable Discrimination v. Commercially Unreasonable Practices. The 2010 rules included a ban on "discrimination". The Court of Appeals vacated that rule. The new rules replace this with a ban on "commercially unreasonable practices".

The 2010 rules provided that "A person engaged in the provision of fixed broadband Internet access service, insofar as such person is so engaged, shall not unreasonably discriminate in transmitting lawful network traffic over a consumer’s broadband Internet access service. Reasonable network management shall not constitute unreasonable discrimination."

The new rules provide that "A person engaged in the provision of fixed broadband Internet access service, insofar as such person is so engaged, shall not engage in commercially unreasonable practices. Reasonable network management shall not constitute a commercially unreasonable practice."

The 2010 rules did not define "unreasonably discriminate". The new rules do not define "commercially unreasonable".

Both the BIAS providers, and the companies that these rules are promulgated to benefit, are left without advance notice of whether certain business practices will be found by the FCC to be commercially unreasonable. In practice, businesses may not learn until long after a practice has been implemented that it either is, or is not, unreasonable.

The definition of "reasonable network management" remains unchanged: "A network management practice is reasonable if it is appropriate and tailored to achieving a legitimate network management purpose, taking into account the particular network architecture and technology of the broadband Internet access service."

Moreover, the new rules repeat verbatim the 2010 rules' exceptions for fighting copyright infringement and other unlawful activity, for providing emergency communications, and for facilitating the surveillance objectives of law enforcement or intelligence agencies.

That is, "Nothing in this part supersedes any obligation or authorization a provider of broadband Internet access service may have to address the needs of emergency communications or law enforcement, public safety, or national security authorities, consistent with or as permitted by applicable law, or limits the provider’s ability to do so" and "Nothing in this part prohibits reasonable efforts by a provider of broadband Internet access service to address copyright infringement or other unlawful activity."

Peering. Some companies, such as Netflix, have argued that the FCC should address peering along with net neutrality.

See for example, stories titled "Netflix's Hastings Complains About Lack of Interconnectivity" in TLJ Daily E-Mail Alert No. 2,635, March 24, 2012, and "Wheeler Says NPRM Will Seek Comments But Not Propose Rules on Internet Peering" in TLJ Daily E-Mail Alert No. 2,649, April 29, 2014.

However, the proposed rules contain nothing regarding peering.

Chairman Wheeler wrote that "Separate and apart from this connectivity is the question of interconnection (``peering´´) between the consumer’s network provider and the various networks that deliver to that ISP. That is a different matter that is better addressed separately. Today's proposal is all about what happens on the broadband provider's network and how the consumer’s connection to the Internet may not be interfered with or otherwise compromised."

The NPRM states (at Paragraph 59) that the 2010 rules "applied to a broadband provider's use of its own network but did not apply the no-blocking or unreasonable discrimination rules to the exchange of traffic between networks, whether peering, paid peering," or certain other activities.

The NPRM then states that "We tentatively conclude that we should maintain this approach, but seek comment on whether we should change our conclusion."

The House will meet at 12:00 NOON for morning hour, and at 2:00 PM for legislative business. The House will consider numerous non-technology related items under suspension of the rules. votes will be postponed until 6:30 PM. See, Rep. Cantor's schedule.

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

12:00 NOON - 2:00 PM. The Tech Freedom will host an event titled "IP Transition Luncheon Briefing". The speakers will be Jodie Griffin (Public Knowledge), Hank Hultquist (AT&T), Berin Szoka (Tech Freedom), Christopher Yoo (University of Pennsylvania School of Law), and David Young (Verizon). Free. Open to the public. Lunch will be served starting at 11:30 AM. See, notice. Location: United Methodist Building, Rooms 1 & 2, 100 Maryland Ave., NE.

2:00 - 2:30 PM. The Federal Communications Commission's (FCC) Consumer Advisory Committee will meet. See, notice in the Federal Register, Vol. 79, No. 78, April 23, 2014, at Page 22672. Location: FCC, Room TW-C438/468, 445 12th St., SW.

3:00 - 4:00 PM. The Office of the U.S. Trade Representative's (OUSTR) Industry Trade Advisory Committee on Small and Minority Business will hold a partially closed meeting. See, notice in the Federal Register, Vol. 79, No. 87, May 6, 2014, at Pages 25982-25983. Location: Suite M800, Training Room C, Ronald Reagan International Trade Center, 1300 Pennsylvania Ave., NW.

The House will meet at 10:00 AM for morning hour, and at 12:00 NOON for legislative business. The agenda for the week includes consideration of HR 4225 [LOC | WW], the "Stop Advertising Victims of Exploitation Act of 2014" or "SAVE Act". See, stories titled "House Judiciary Committee to Mark Up Sex Ads Bill" in TLJ Daily E-Mail Alert No. 2,648, April 28, 2014, and "House Judiciary Committee Approves Bill to Criminalize Online Sex Advertising" in TLJ Daily E-Mail Alert No. 2,651, May 1, 2014. The schedule for the week also includes possible consideration of HR 3361 [LOC | WW], the "Uniting and Strengthening America by Fulfilling Rights and Ending Eavesdropping, Dragnet-collection, and Online Monitoring Act'' or "USA FREEDOM Act", a bill to limit the surveillance powers of the government by stating that several provisions of surveillance law may not be used for bulk collection of information. See, story titled "House Judiciary and Intelligence Committees Approve Bill to Limit NSA Bulk Collection of Data" in TLJ Daily E-Mail Alert No. 2,656, May 8, 2014. See, Rep. Cantor's schedule.

10:00 AM. The Senate Judiciary Committee (SJC) will hold a hearing on several U.S. District Court nominees: Randolph Moss (DC), Andre Birotte (CDCal), John deGravelles (MDLa), Robin Rosenberg (SDFl), and Ronnie White (EDMo). Webcast. See, notice. Location: Room 226, Dirksen Building.

10:30 AM. The House Commerce Committee's (HCC) Subcommittee on Communications and Technology will hold a hearing titled "Oversight of the Federal Communications Commission". Webcast. See, notice. Location: Room 2123, Rayburn Building.

11:00 AM - 2:00 PM. The National Science Foundation's (NSF) Networking and Information Technology Research and Development (NITRD) Program's Large Scale Networking Joint Engineering Team (LSN/JET) meets the third Tuesday of each month. See, notice in the Federal Register, Vol. 78, No. 226, November 22, 2013, at Page 70076. Location: NSF, 4201 Wilson Boulevard, Arlington, VA.

1:00 - 5:00 PM. The Department of Commerce's (DOC) National Telecommunications and Information Administration (NTIA) will host one of its series of meetings regarding privacy and facial recognition technology. See, notice in the Federal Register, Vol. 78, No. 235, December 6, 2013, at Pages 73502-73503. Location: American Institute of Architects, 1735 New York Ave., NW.

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

5:00 PM. Deadline to submit requests to to attend, either on site or online, the May 22, 2014 meeting of the Department of Homeland Security's (DHS) Customs and Border Protection's (CBP) Advisory Committee on Commercial Operations of Customs and Border Protection in Miami, Florida. See, notice in the Federal Register, Vol. 79, No. 86, May 5, 2014, at Pages 25608-25609, and CBP notice.

7:30 - 9:30 PM. The Tech America Foundation will host an event titled "American Technology Awards". Location: 1776, 1133 15th St., NW.

9:15 - 11:15 AM. The President's National Security Telecommunications Advisory Committee (NSTAC) will hold a closed meeting. The agenda is a discussion of cyber security threats. See, notice in the Federal Register, Vol. 79, No. 85, May 2, 2014, at Pages 25138-25139. Location: undisclosed.

9:30 AM - 3:00 PM. The Department of Health and Human Services' (DHHS) Office of the National Coordinator for Health Information Technology's (ONC/HIT) HIT Standards Committee will meet. See, notice in the Federal Register, Vol. 78, No. 243, December 18, 2013, at Page 76627-76628.

RESCHEDULED FROM MAY 8. 10:00 AM. The House Homeland Security Committee's (HHSC) Subcommittee on Couterterrorism and Intelligence and Subcommittee on Cybersecurity, Infrastructure Protections, and Security Technologies will hold a hearing titled "Assessing Persistent and Emerging Cyber Threats to the U.S. Homeland". The witnesses will be __. See, notice. Location: Room 311, Cannon Building.

10:00 AM. The Senate Judiciary Committee (SJC) will hold a hearing titled "Oversight of the FBI". The witness will be FBI Director James Comey. See, notice. Location: Room 226, Dirksen Building.

12:00 NOON. The Cato Institute will host a panel discussion titled "Suspending the Law: The Obama Administration's Approach to Extending Executive Power and Evading Judicial Review". The speakers will be Andrew Grossman (Cato), Nicholas Rosenkranz (Georgetown University Law Center), Jonathan Turley (George Washington University Law School), and Ilya Shapiro (Cato). Free. Open to the public. Webcast. Lunch will be served after the program. See, notice. Location: Cato, 1000 Massachusetts Ave., NW.

12:30 - 2:00 PM. The American Intellectual Property Law Association (AIPLA) will host a webcast panel discussion titled "Open Source: Getting Important Nuts & Bolts for Free?". The speakers will be Clifford Allen (Microsoft), Terry Ilardi (IBM), John Lyon (Thomas Horstemeyer), and Michael Atlass (Qualcomm). CLE credits. Prices vary. See, notice.

12:45 - 4:00 PM. The President's National Security Telecommunications Advisory Committee (NSTAC) will hold a meeting. The agenda is panel discussion comprised of members from Canada, the United Kingdom, and the U.S. who will discuss their country's approaches to infrastructure protection. Open to the public. See, notice in the Federal Register, Vol. 79, No. 85, May 2, 2014, at Pages 25138-25139. Location: Eisenhower Executive Office Building.

EXTENDED FROM APRIL 14. 5:00 PM. Deadline to submit comments to the Copyright Office (CO) regarding "Orphan Works and Mass Digitization". See, original notice in the Federal Register (FR), Vol. 79, No. 27, February 10, 2014, at Pages 7706-7711, and extension notice in the FR, Vol. 79, No. 65, April 4, 2014, at Page 18932.

6:00 - 7:30 PM. The Federal Communications Bar Association's (FCBA) International Committee will host an event titled "Reception". The speaker will be Daniel Sepulveda (Deputy Assistant Secretary of State and U.S. Coordinator for International Communications and Information Policy). No webcast. No CLE credits. Prices vary. The deadline for registrations and cancellations is 5:00 PM on May 19. See, notice. Location: Wiley Rein, 1776 K St., NW.

Deadline to submit comments to the U.S. Patent and Trademark Office (USPTO) in response to its proposal to amend its rules related to collective trademarks, collective service marks, and collective membership marks, and certification marks to clarify application requirements, allegations of use requirements, multiple class application requirements, and registration maintenance requirements for such marks. See, notice in the Federal Register, Vol. 79, No. 34, February 20, 2014, at at Pages 9678-9697.

Supreme Court conference day. See, October Term 2013 calendar.

Day one of four of elections for the European Parliament.

9:15 AM. The House Commerce Committee's (HCC) Subcommittee on Commerce, Manufacturing and Trade will meet to mark up HR __, a yet to be introduced bill regarding demand letters that allege patent infringement. Webcast. See, notice. Location: Room 2123, Rayburn Building.

9:30 AM. The Senate Judiciary Committee (SJC) will hold an executive business meeting. The agenda once again includes consideration of S 1720 [LOC | WW], the "Patent Transparency and Improvements Act of 2013". See, stories titled "Patent Legislation Update" in TLJ Daily E-Mail Alert No. 2,637, April 7, 2014, and "Senate Judiciary Committee Members Still Working on Patent Bill" in TLJ Daily E-Mail Alert No. 2,641, April 17, 2014. Webcast. See, notice. Location: Room 226, Dirksen Building.

10:00 - 1:45 AM. The New America Foundation (NAF) will host an event titled "Globalization Goes Digital". The speakers will address cross border flows of data, goods, services, finance, and talent. The speakers will include Eric Schmidt (Google and NAF) and Eric Spiegel (P/CEO of Siemens USA). Free. Open to the public. Webcast. See, notice. Location: NAF, Suite 400, 1899 L St., NW.

1:00 - 5:00 PM. The Federal Aviation Administration's (FAA) Radio Technical Commission for Aeronautics' (RTCA) Special Committee 228, Minimum Operational Performance Standards for Unmanned Aircraft Systems, will meet. See, notice in the Federal Register, Vol. 79, No. 68, April 9, 2014, at Page 19705. Location: RTCA, Suite 910, 1150 18th St., NW.

1:00 - 5:00 PM. The Department of Homeland Security's (DHS) Customs and Border Protection's (CBP) Advisory Committee on Commercial Operations of Customs and Border Protection will meet online and on site (in Miami, Florida). The DHS engages in several technology related activities, including enforcement of intellectual property rights (IPR) by seizing infringing goods, seizure of domain names, and warrantless searches of laptops, tablets, phones and other devices at entry points. The agenda for the meeting includes discussion of "the recommendations on the Intellectual Property Rights (IPR) Working Group's work to determine the feasibility of a Partnership Program for IPR" and "application of the Document Imaging System as a tool for IPR authentication". See, notice in the Federal Register, Vol. 79, No. 86, May 5, 2014, at Pages 25608-25609, and CBP notice. The deadline to submit comments is  May 15, 2014. The deadline to register to attend, either on site or online, is 5:00 PM EST on May 20, 2014. See, FR, Vol. 79, No. 86, May 5, 2014, at Pages 25608-25609.

CANCELLED. 6:00 - 8:15 PM. The Federal Communications Bar Association's (FCBA) Engineering and Technical Committee will host an event titled "Repacking Broadcasters: A Technical and Legal Discussion". The speakers will be __. CLE credits. Prices vary. No webcast. The deadline for registrations and cancellations is 5:00 PM on May 21. See, notice. Location: __.

Deadline to submit nominations for Co-Chair of the Federal Communications Bar Association's (FCBA) Young Lawyers Committee. Submit nominations by e-mail to Justin Faulb at jfaulb at nab dot org and Lindsey Tonsager ltonsager at cov dot com.

Rep. Cantor's schedule states that "no votes are expected" in the House.

Day two of four of elections for the European Parliament.

Deadline to submit comments to the National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) regarding its second draft SP 800-90 A Rev. 1 [112 pages in PDF] titled "Recommendation for Random Number Generation Using Deterministic Random Bit Generators".

Day three of four of elections for the European Parliament.

Day four of four of elections for the European Parliament.

Memorial Day. This is a federal holiday. See, Office of Personnel Management's (OPM) 2014 calendar of federal holidays.

12:15 - 1:30 PM. The Federal Communications Bar Association's (FCBA) Young Lawyers Committee will host an event titled "Co-Chair Election and Planning Meeting". Location: Covington & Burling, 1201 Pennsylvania Ave., NW.

11:59 PM. Deadline to submit comments to the National Institute of Standards and Technology (NIST) in response to its request for information on its potential transition of Internet Time Service (ITS) from a NIST only service to private sector operation of an ensemble of time servers that will provide NIST traceable time information in a number of different formats over the internet. See, notice in the Federal Register, Vol. 79, No. 58, March 26, 2014, at Pages 16772-16774.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to Part VI(A) of its Further Notice of Proposed Rulemaking (FNPRM) regarding closed captioning of video programming. Part VI(A) pertains to "Responsibilities for Meeting the Closed Captioning Obligations". The FCC adopted this FNPRM on February 20, 2014, and released it on February 24, 2014. It is FCC 14-12 in CG Docket No. 05-231. See, notice in the Federal Register, Vol. 79, No. 59, March 27, 2014, at Pages 17093-17106.

5/15. The Federal Communications Commission's (FCC) just released Notice of Proposed Rulemaking (NPRM) asks for public comments on many aspects of pay for priority agreements between broadband internet access service (BIAS) providers and edge providers. However, the actual proposed rules do not expressly permit, prohibit, or regulate any pay for priority agreements. Yet, this is one of the key issues in current debates over network neutrality.

The proposed rules would require BIAS providers to publicly disclose some information about pay for priority agreements. But, this is the actual rules' only reference to prioritization.

The NPRM states in opening that BIAS "providers may have incentives to increase revenues by charging edge providers for access or prioritized access to the broadband provider’s end users. In particular, excessive fees could reduce edge provider entry, suppress innovation, and depress consumer demand." (See, paragraph 6. Footnotes omitted.)

The NPRM then states (at paragraph 11) that the proposed rules contain a ban on commercially unreasonable practices, and hence, the FCC asks "how harm can best be identified and prohibited and whether certain practices, like paid prioritization, should be barred altogether."

The NPRM proceeds to ask numerous questions.

However, if the FCC were to adopt the proposed rules as set forth in this NPRM, then its rules would not expressly permit or prohibit any kind of pay for priority. If the FCC were to then find any BIAS provider in violation of its rules for entering into a pay for priority agreement, it would have to be under the following language in the proposed rules: "A person engaged in the provision of fixed broadband Internet access service, insofar as such person is so engaged, shall not engage in commercially unreasonable practices. Reasonable network management shall not constitute a commercially unreasonable practice." This would provide only hopelessly vague guidance.

Or possibly, the FCC might assert that pay for priority violates the proposed rules' ban on blocking. But, the proposed rules define block as "The failure of a broadband Internet access service to provide an edge provider with a minimum level of access that is sufficiently robust, fast, and dynamic for effective use by end users and edge providers." The rule provides guidance in the dichotomous choice of either to block or not to block. But the words "minimum", "sufficiently", "robust", "effective use" lack specificity and meaning.

Nevertheless, Commissioner Pai wrote in his statement that the proposed rule "allows for paid prioritization under unspecified circumstances".

In contrast, Chairman Wheeler wrote that "When a consumer buys specified capacity from a network provider he or she is buying open capacity, not capacity the network can prioritize for its own profit purposes. Prioritization that deprives the consumer of what the consumer has paid for would be commercially unreasonable and therefore prohibited."

But then, statements outside of the rules do not constitute rules. Moreover, the FCC freely ignores prior statements in subsequent enforcement proceedings. For example, the FCC adopted a policy statement regarding net neutrality on August 5, 2005. The FCC asserted this policy statement as authority for the adjudicatory action that it took against Comcast in 2008. The Court of Appeals overturned that order in its April 6, 2010 opinion [36 pages in PDF]. And, the FCC responded by adopting its December 2010 rules. However, back at the Commissioner meeting of August 5, 2005, Tom Navin, the then Chief of the FCC's Wireline Competition Bureau stated that the policy statement is "principles", and that "they are not enforceable". See, story titled "FCC Adopts a Policy Statement Regarding Network Neutrality" in TLJ Daily E-Mail Alert No. 1,190, August 8, 2005 (in the 11th paragraph).

Commissioner Ajit Pai also wrote in his statement that "I see no legal path for the FCC to prohibit paid prioritization or the development of a two-sided market -- which appears to be the sine qua non objection by many to the Chairman's proposal."

Pai (at right) continued that "As the NPRM frankly acknowledges, section 706 of the Telecommunications Act ``could not be used´´ for such a ban. And while the NPRM resists saying it outright, neither could Title II. After all, Title II only authorizes the FCC to prohibit ``unjust or unreasonable discrimination´´ and both the Commission and the courts have consistently interpreted that provision to allow carriers to charge different prices for different services. Indeed, I have been unable to find even a single case in which the Commission found it unlawfully discriminatory to offer a different (faster) service to customers at a different (higher) price." (Footnotes omitted. Parentheses in original.)

Commissioner Michael O'Reilly wrote in his statement that "even ardent supporters of net neutrality recognize that some amount of traffic differentiation or ``prioritization´´ must be allowed or even encouraged. Voice must be prioritized over email; video over plain data. Prioritization is not a bad word. It is a necessary component of reasonable network management. The Notice is particularly skeptical of paid prioritization and contemplates banning some or all such arrangements outright."

"Yet companies that do business over the Internet, including some of the strongest supporters of net neutrality, routinely pay for a variety of services to ensure the best possible experience for their consumers. They've been doing it for years. And certain arrangements have even been viewed as ``good for the Internet.´´ In short, fears that paid prioritization will automatically degrade service for other users, relegating them to a so-called ``slow lane,´´ have been disproven by years of experience", said O'Reilly.

While the proposed rule regarding commercially unreasonable practices is short, and lacking in any meaningful guidance, it is hypothetically possible that the FCC could adopt a final rule that contains clear and specific language regarding what are the commercially unreasonable practices.

However, the NPRM leaves little room for optimism. There is a long discussion. The NPRM poses many questions. The FCC proposes many possible methods of analysis. (See, Paragraphs 116-141, at pages 42-50.)

In 2010 the FCC did not expand its no discrimination rule between issuance of the NPRM and adoption of the final rule. Moreover, this NPRM lacks any specific proposal to ban certain types of, for example, pay for priority agreements.

This NPRM does suggest many methods of competition analysis, for which there exist bodies of legal precedent and tested methods of economic analysis. However, the NPRM also lists many other factors, that would ensure uncertainty of regulatory outcomes. For example, the NPRM suggests imposing a "good faith negotiation" requirement, oxymoronically, even where "parties do not seek to enter into contractual relationships with each other".

In short, the proposed rule lacks clarity, the FCC is unlikely to expand the rule, and even if it did, it would likely only add language that would add to uncertainty.

The NPRM states that "we tentatively conclude that we will adopt a case-by-case approach, considering the totality of the circumstances, when analyzing whether conduct satisfies the proposed commercially reasonable legal standard". In other words, the term "commercially reasonable practices" will mean in any given proceeding whatever three out of five Commissioners want it to mean.

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