5/28. The House Science Committee (HSC) completed its mark up HR 4186 [LOC | WW], the "Frontiers in Innovation, Research, Science, and Technology Act of 2014", also known as the "FIRST Act". See also, HSC release.

This bill would authorize appropriations for the National Science Foundation (NSF), the (DOC) National Institute of Standards and Technology (NIST), and Executive Office of the President's (EOP) Office of Science and Technology Policy (OSTP) for fiscal years 2014 and 2015.

A key issue has been how the NSF should go about awarding research grants, and hence, who will receive grant federal funding.

For example, Section 106 of the bill provides that the NSF shall fund "basic research and education in the sciences" only if it finds that it has the "potential to achieve" either "(A) increased economic competitiveness in the United States; (B) advancement of the health and welfare of the American public; (C) development of a STEM workforce and increased public scientific literacy in the United States; (D) increased partnerships between academia and industry in the United States; (E) support for the national defense of the United States; or (F) promotion of the progress of science in the United States."

Votes on amendments broke down along party lines. Final passage was by voice vote. See, HSC web page with hyperlinks to amendments, and roll call votes.

The HSC began this mark up on May 21. See, story titled "House Science Committee Begins Mark Up of NSF, NIST and OSTP Reauthorization Bill" 2,662, May 22, 2014.

Rep. Lamar Smith (R-TX), the Chairman of the HSC, stated that "To remain globally competitive, we must ensure that our priorities are funded and that taxpayer dollars are spent wisely."

Rep. Smith (at right) said that "The FIRST Act keeps America first in areas of science and research that are crucial to economic growth. It focuses taxpayer investments for basic research in the critical areas of physical science and engineering. These are the fields that are essential for technological innovations that will lead to the creation of new jobs, new businesses and industries of the future. This bill strengthens the economy, improves people’s lives and creates a more open and responsive government."

Rep. Eddie Bernice Johnson (D-TX), the ranking Democrat on the HSC, stated in a release that "the FIRST Act seems preoccupied with questioning the motives of America's premiere science agency and the integrity of the scientists it funds. Where the Competes Act focused on broadly lifting America's commitment to the sciences, the FIRST Act instead seeks to pit different scientific disciplines against one another."

5/28. Rep. Bob Latta (R-OH) introduced HR 4752 [LOC | WW | TLJ], a bill that would revise definitions in the Communications Act in a manner that would prevent the Federal Communications Commission (FCC) from classifying broadband internet access service (BIAS) as "common carrier" service, or subjecting BIAS to Title II regulation.

The introduction of this bill is a reaction to the FCC's Notice of Proposed Rulemaking (NPRM) adopted on May 15. That NPRM once again proposes rules for the regulation of the network management practices of BIAS providers.

That NPRM also asks for comments on the alternative approach of reclassifying BIAS as a Title II (common carrier) service. See, stories titled "FCC Adopts Net Neutrality NPRM", "Summary of the FCC's Proposed Net Neutrality Rules", and "Net Neutrality NPRM and Pay for Priority Agreements" in TLJ Daily E-Mail Alert No. 2,659, May 19, 2014.

Rep. Latta (at right) stated in a release that "In light of the FCC initiating yet another attempt to regulate the Internet, upending long-standing precedent and imposing monopoly-era telephone rules and obligations on the 21st Century broadband marketplace, Congress must take action to put an end to this misguided regulatory proposal".

He added that "My legislation will provide all participants in the Internet ecosystem the certainty they need to continue investing in broadband networks and services that have been fundamental for job creation, productivity and consumer choice."

"Reclassification would heap 80 years of regulatory baggage on broadband providers, restricting their flexibility to innovate and placing them at the mercy of a government agency. These businesses thrive on dynamism and the ability to evolve quickly to shifting market and consumer forces. Subjecting them to bureaucratic red tape won’t promote innovation, consumer welfare or the economy".

The bill was referred to the House Commerce Committee (HCC). Rep. Latta is a member.

Reaction. Walter McCormick, head of the US Telecom, stated in a release that "We support Congressman Latta's legislation as being consistent with the conclusions reached by previous FCCs, under both Democratic and Republican Chairs, that broadband should not be subject to Title II, and with the longstanding bipartisan majority in Congress who believe that 21st century technology should not be burdened with 19th century rules. The legislation reinforces the proven success of light-touch regulation in encouraging investment and innovation, and will help meet the public’s interest in expanded broadband deployment and adoption."

The National Cable and Telecommunications Association (NCTA) stated in a release that "Since the late 1990's, policymakers and regulators have established a bipartisan consensus that a light regulatory touch provides the best path for ensuring that the Internet will become an engine of economic growth and social prosperity. We support the efforts of Vice Chairman Latta to codify current policy and to ensure that the Internet continues to grow and remains open and free from the burdens of outdated, public utility regulation."

Grant Seiffert, head of the Telecommunications Industry Association (TIA), stated in a release that "As the courts have already ruled, the FCC has the existing authority, using a lighter touch approach, to protect consumers from possible abuses. Heavy handed, utility-like regulation should have no role for the Internet, and TIA supports efforts, such as the Latta proposal, which make that clear."

Bill Summary. This bill recites in its findings that "Title II of the Communications Act of 1934 was designed for the monopoly telephone system in 1934 and has its origins in 19th century shipping regulations", and that "Imposing the obligations and requirements of title II of such Act on broadband Internet access service would severely harm broadband investment and create myriad negative unintended consequences".

This bill would amend 47 U.S.C. § 153, which contains definitions for the Communications Act.

Paragraph 11 currently defines "common carrier" as "any person engaged as a common carrier for hire, in interstate or foreign communication by wire or radio or interstate or foreign radio transmission of energy, ...".

This bill would add to Paragraph 11 the qualification that "Such term does not include a provider of an information service or of advanced telecommunications capability (as defined in section 706 of the Telecommunications Act of 1996 (47 U.S.C. 1302)) when engaged in the provision of such service or capability." (Parentheses in original.)

This bill would similarly revise the definitions in Paragraphs 51 and 53 of "telecommunications carrier" and "telecommunications service".

Paragraph 24 currently defines "information service" as "the offering of a capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information via telecommunications, and includes electronic publishing, but does not include any use of any such capability for the management, control, or operation of a telecommunications system or the management of a telecommunications service."

This bill would change the meaning of "information service" to "the offering of a capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information via telecommunications, and includes electronic publishing, but does not include -- (A) a telecommunications service; or (B) any use of any such capability for the management, control, or operation of a telecommunications system or the management of a telecommunications service."

The bill also would to Paragraph 24 the statement that "Such term includes broadband Internet access service. A provider of an information service may not be treated as a telecommunications carrier under this Act when engaged in the provision of an information service, and may not be required to offer such service or any component of such service as a telecommunications service."

Finally, this bill would add a definition of "broadband internet access service". It would be defined as "a mass-market retail service by wire or radio that provides the capability to transmit data to and receive data from all or substantially all Internet endpoints, including any capabilities that are incidental to and enable the operation of the communications service, but excluding dial-up Internet access service. Broadband Internet access service is an information service, and includes a service utilizing advanced telecommunications capability (as defined in section 706 of the Telecommunications Act of 1996 (47 U.S.C. 1302))."

Bill Analysis. Few bills related to FCC regulation are actually enacted into law. Many are introduced as part of efforts to influence FCC rulemaking proceedings. That may be the case with this bill.

However, if hypothetically this bill were enacted into law, it goes to great lengths to limit FCC ability to treat BIAS under Title II.

This bill might have contained only a simple statement, such as, the FCC shall not reclassify BIAS as a Title II service. However, this is a technical bill that stretches over six pages. It revises four definitions, and adds a fifth. It also includes Congressional findings that could be important in judicial review of any FCC attempts to evade the mandate of this bill.

It might be recalled that the FCC has played fast and loose with definitions and classifications in the past, and this bill may be drafted this in mind.

This bill would restrict the FCC's ability to play definitional and classification games with BIAS.

Recall for example the FCC's proceedings in which it extended the mandates of the Communications Assistance for Law Enforcement Act (CALEA) to BIAS. (The CALEA requires that "a telecommunications carrier shall ensure that its equipment, facilities, or services" are designed in a way that enables the government to conduct wiretaps and intercepts.)

A decade ago the intelligence and law enforcement agencies that engage in surveillance wanted the CALEA to also apply to BIAS providers. But, the statute expressly provides both that CALEA mandates only apply to telecommunications carriers, and that they do not apply to information service. The surveillance agencies and their backers in the Congress could not get a bill through the Congress to expand the scope of the CALEA. So, they turned to the FCC to impose the CALEA regime on BIAS.

However, the FCC had previously classified BIAS as an information service, and was intent on keeping that classification. The surveillance agencies were able to tame the FCC because the FCC needed Department of Justice (DOJ) assistance in seeking Supreme Court review in the Brand X case. See, "Rep. Pickering Suggests Relationship Between the DOJ's Brand X Cert Petition and the FCC's CALEA NPRM" in TLJ Daily E-Mail Alert No. 974, September 10, 2004.

In the end, the FCC declared, with much definitional gobbledygook, that BIAS is telecommunications for the purpose of CALEA mandates, but not telecommunications for other purposes. See, story titled "FCC Amends CALEA Statute" in TLJ Daily E-Mail Alert No. 1,191, August 9, 2005.

The FCC reasoned that BIAS is an information service. But information service it is not, when the surveillance agencies say it is not; and a telecommunications service changes even as their mind. What they will have it named, even that it is, and so it shall be for the FCC.

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The House will meet at 9:00 AM. It will consider HR 4681 [LOC | WW], the "Intelligence Authorization Act for Fiscal Years 2014 and 2015". See, Rep. Cantor's schedule.

The Senate will meet at 2:00 PM in pro forma session.

9:00 AM. The House Judiciary Committee's (HJC) Over Criminalization Task Force will hold a hearing titled "Penalties". See, notice. Location: Room 2237, Rayburn Building.

9:00 - 10:30 AM. The American Enterprise Institute (AEI) will host an event titled "Trading up: Representative Charles Boustany Jr. on free trade’s growth opportunities". The speakers will be Rep. Charles Boustany (R-LA), Thea Lee (AFLCIO), Scott Miller (Center for Strategic and International Studies), Bill Reinsch (National Foreign Trade Council), Derek Scissors (AEI), and Claude Barfield (AEI). Free. Open to the public. No CLE credits. Webcast. See, notice. Location: AEI, 12th Floor, 1150 17th St., NW.

12:00 NOON. The Internet Caucus will host an event titled "NSA Surveillance Powers: How Effective Are They At Thwarting Terrorist Attacks?". See, notice. Location: __.

5:00 PM. Deadline to submit comments to the Department of Commerce's (DOC) National Institute of Standards and Technology (NIST) regarding its draft document [255 pages in PDF] titled "NIST Framework and Roadmap for Smart Grid Interoperability Standards, Release 3.0". This is also known as NIST SP 1108R3. See, NIST April 16 release, and notice in the Federal Register, Vol. 79, No. 72, April 15, 2014, at Page 21210.

Deadline to submit to the Department of Commerce's (DOC) Bureau of Economic Analysis (BEA) Form BE-15, titled "Annual Survey of Foreign Direct Investment in the United States". The deadline for companies that use the BEA's eFile system is June 30, 2014. See, notice in the Federal Register, Vol. 79, No. 40, February 28, 2014, at Pages 11394-11395.

Deadline to submit to the Department of Commerce's (DOC) Bureau of Economic Analysis (BEA) Form BE-11, titled "Annual Survey of U.S. Direct Investment Abroad". See, notice in the Federal Register, Vol. 79, No. 40, February 28, 2014, at Page 11395.

The House will not meet the week of June 2-6, except for pro forma sessions. See, House calendar.

The Senate will return from is Memorial Day recess at 2:00 PM.

9:30 AM. The House Judiciary Committee's (HJC) Subcommittee on Courts, Intellectual Property and the Internet will hold a hearing titled "First Sale Under Title 17". The witnesses will be Stephen Smith (P/CEO of John Wiley & Sons), John Ossenmacher (CEO of ReDigi), Ed Shems, Jonathan Band (Owner’s Rights Initiative), Matthew Glotzer, Greg Cram (New York Public Library), Sherwin Siy (Public Knowledge), John Villasenor (UCLA), and Emery Simon (BSA Software Alliance).  See, notice. This hearing is in New York City. There will be no live webcast. The HJC will publish a video of the hearing after its completion.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Facebook. v. Pragmatus, App. Ct. Nos. 13-1350 and 13-1351. Panel B+. Location: Courtroom 201, 717 Madison Place, NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Lochner Technologies v. VIZIO, App. Ct. No. 13-1551. Panel B. Location: Courtroom 201, 717 Madison Place, NW.

6:30 PM. The Electronic Privacy Information Center (EPIC) will host an event titled "Champions of Freedom 2014 Awards Dinner". See, notice. Location: The Fairfax at Embassy Row, 2100 Massachusetts Ave., NW.

EXTENDED FROM APRIL 1. Deadline to submit nominations to the U.S. Patent and Trademark Office (USPTO) for award of the National Medal of Technology and Innovation. See, original notice in the Federal Register, Vol. 78, No. 249, December 27, 2013, at Pages 78838-78839, and January 4, 2014 release. See, also extension notice in the FR, Vol. 79, No. 53, March 19, 2014, at Page 15321.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) regarding regulation of maritime radio equipment and radar, and allowing on shore use of portable marine Very High Frequency (VHF) transmitters. The FCC adopted this NPRM on February 27, 2014, and released it on February 28. It is FCC 14-20 in WT Docket No. 14-36. See, notice in the Federal Register, Vol. 79, No. 62, April 1, 2014, at Pages 18249-18256.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in 01 Communique Laboratory v. Logmein, Inc., App. Ct. No. 13-1479. Panel G. Location: Courtroom 203, 717 Madison Place, NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Home Gambling Network v. Piche, App. Ct. No. 14-1053. Panel G. Location: Courtroom 203, 717 Madison Place, NW.

11:00 AM. The Senate Appropriations Committee's (SAC) Subcommittee on Commerce, Justice, Science and Related Agencies will meet to mark up a Commerce, Justice, Science and Related Agencies appropriations bill. See, notice. Location: Room 192, Dirksen Building.

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.

1:00 - 2:30 PM ET. The American Bar Association (ABA) will host a webcast panel discussion titled "Yourbrandsucks.com: A Primer on Gripe Sites and How to Deal with Them". Prices vary. CLE credits. See, notice.

1:00 PM. The Federal Communications Bar Association (FCBA) will host an event titled "18th Annual Foundation Golf Tournament". For more information, contact Glenn Reynolds at greynolds at ustelecom dot org. Location: Westfields Golf Club, 13940 Balmoral Greens Avenue, Clifton, VA.

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

8:30 AM - 5:40 PM. Day one of a two day event hosted by the Patient Privacy Rights titled "Fourth Annual International Summit on the Future of Health Privacy". See, notice. Location: Hart Auditorium, McDonough Hall, Georgetown Law Center, 600 New Jersey Ave., NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Industrial Technology Research v. ITC, App. Ct. No. 13-1480. Panel I. Location: Courtroom 402, 717 Madison Place, NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in JVC Kenwood v. Nero, App. Ct. No. 14-1011. This is an appeal from the U.S. District Court (CDCal) in a patent infringement case involving method claim exhaustion. Panel J. Location: Courtroom 203, 717 Madison Place, NW.

10:00 AM. The Brookings Institution (BI) will host an event titled "Innovation, Internet Governance and Freedom of Expression around the World". The speaker will be Gary Shapiro, head of the Consumer Electronics Association (CEA). See, notice. Location: BI, 1775 Massachusetts Ave., NW.

10:30 AM. The Senate Judiciary Committee (SJC) will hold a hearing on pending judicial nominees. See, notice. Location: Room 226, Dirksen Building.

1:00 - 3:00 PM. The Brookings Institution (BI) will host a pair of panel discussions titled "International Implications of the National Security Agency Leaks". See, notice. Location: BI, 1775 Massachusetts Ave., NW.

2:30 PM. The Senate Judiciary Committee's (SJC) Subcommittee on Privacy, Technology and the Law will hold a hearing titled "The Location Privacy Protection Act of 2014". Sen. Al Franken (D-MN) will preside. He introduced this bill, S 2171 [LOC | WW], on March 27, 2014. The witnesses will be __. See, notice. Location: Room 226, Dirksen Building.

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

8:30 AM - 2:15 PM. The U.S. China Economic and Security Review Commission will hold a hearing titled "Recent Developments in China’s Relations with Taiwan and North Korea". Free. Open to the public. No webcast. See, notice. Location: Room 608, Dirksen Building.

8:30 AM - 1:30 PM. Day two of a two day event hosted by the Patient Privacy Rights titled "Fourth Annual International Summit on the Future of Health Privacy". See, notice. Location: Hart Auditorium, McDonough Hall, Georgetown Law Center, 600 New Jersey Ave., NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Rotatable Technologies v. Motorola Mobility, App. Ct. No. 14-1042. Panel M. Location: Courtroom 203, 717 Madison Place, NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Ericsson v. D-Link Systems, App. Ct. No. 13-1625. Panel M. Location: Courtroom 203, 717 Madison Place, NW.

10:30 AM. The Senate Commerce Committee (SCC) will hold a hearing titled "Preserving Public Safety and Network Reliability in the IP Transition". The witnesses will be __. Location: Room 253, Russell Building.

10:30 AM. The Senate Appropriations Committee (SAC) will meet to mark up a Commerce, Justice, Science and Related Agencies appropriations bill. See, notice. Location: Room 106, Dirksen Building.

12:00 NOON. The Cato Institute will host a discussion of the book titled "Is Administrative Law Unlawful?". The speakers will be Philip Hamburger (author), Judge Stephen Williams (USCA/DCCir), and Roger Pilon (Cato). Free. Open to the public. No CLE credits. Webcast. Lunch will be served after the program. See, notice. Location: Cato, 1000 Massachusetts Ave., NW.

1:00 PM. The US Telecom will host a seminar titled "Getting down to the business of IoT in Telecom". Free. Webcast. See, notice.

2:00 - 4:00 PM. The National Science Foundation's (NSF) Networking and Information Technology Research and Development(NITRD) Program's Middleware and Grid Interagency Cooridination (MAGIC) Team meets the first Wednesday 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.

6:00 - 8:15 PM. The Federal Communications Bar Association's (FCBA) Transactional Committee will host an event titled "Recent Developments in the Regulation of Cooperation among Broadcasters and its Impact on TV M&A". The speakers will be __. CLE credits. No webcast. Prices vary. The deadline for registrations and cancellations is 5:00 PM on __. See, notice. Location: __.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in ScriptPro v. Innovation Associates, App. Ct. No. 13-1561. Panel N. Location: Courtroom 201, 717 Madison Place, NW.