5/23. The House rejected HR 4889 [LOC | WW], a bill to create more exceptions to the Customer Proprietary Network Information (CPNI) privacy protections, by a vote of 229-158. This bill was considered under suspension of the rules. Hence, a two thirds majority was required for passage. See, Roll Call No. 229. Republicans voted 176-50. Democrats voted 53-108.

5/23. The House passed HR 4167 [LOC | WW], a bill regarding dialing 911 from multiple line systems, by voice vote.

5/23. The House passed HR 3998 [LOC | WW], the "Securing Access to Networks in Disasters Act", by a vote of 389-2. See, Roll Call No. 230.

5/23. The House passed HR 2589 [LOC | WW], a bill to require the FCC to publish rules changes online within 24 hours of adoption, by voice vote.

5/24. The House Commerce Committee's (HCC) Subcommittee on Commerce, Manufacturing and Trade will hold a hearing titled "Legislative Hearing on 17 FTC Bills" at 10:00 AM on Tuesday, May 24, 2016. See, HCC web page for this hearing.

The hearing will address 14 recently introduced bills, and 3 drafts of yet to be introduced bills.

These bills include 7 sponsored only by Republicans that are directed at reining in perceived arbitrary regulatory overreach by the Obama Federal Trade Commission (FTC), particularly with respect to regulatory practices built upon the assertion of "unfair and deceptive trade practices" authority. President Obama's veto power makes enactment of any of these appear unlikely.

Each of these bills has been given an awkward title, drafted to produce catchy acronyms, such as the CLEAR Act, SHIELD Act, and STALL Act.

Section 5 of the FTC Act (15 U.S.C. § 45) merely provides, in relevant part, that "Unfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce, are hereby declared unlawful." Yet, much of the FTC's regulatory activity is based upon these few vague words.

See also, related stories in this issue titled "Rep. Mullin Introduces Bill to Limit FTC's Section 5 Unfairness Authority", "Rep. Burgess Introduces Bill to Limit Duration of FTC Section 5 Consent Orders", "Rep. Pompeo Introduces Bill to Limit FTC Regulation by Guidance", "Rep. Guthrie Introduces Bill to Require FTC to Makes Disclosures Regarding Section 5 Investigations", "Rep. Bilirakis Introduces Bill to Require FTC to Disclose Its Agenda for the Upcoming Year", "Rep. Pompeo Introduces Bill to Require FTC to Consider Economics Before Issuing Recommendations", "Rep. Brooks Introduces Bill to Provide for Automatic Termination of Inactive FTC Investigations".

Another of the 17 bills would enable increased intransparency the FTC by allowing three out of five Commissions, representing both parties, to meet in secret.

Two bills would expand the reach of FTC regulatory authority to cover common carriers and certain tax exempt entities.

Two bills pertain to online ticket sales, and a third pertains to online booking of hotel reservations.

One would limit the ability of businesses to preclude product reviews by form contracts.

Three more bills, which would have little if any impact on information technology, pertain to funerals, sports concussions, and Made in America labels.

4/28. Rep. Markwayne Mullin (R-OK) introduced HR 5115 [LOC | WW] a bill that would impose a significant limitation of Federal Trade Commission (FTC) authority to declare that business practices are unfair under the FTC Act.

This bill is titled the "Statement on Unfairness Reinforcement and Emphasis Act" or the "SURE Act". The original cosponsors are Lance and Harper.

This bill would amend Section 5 of the FTC Act (15 U.S.C. § 45) to provide that the Federal Trade Commission (FTC) "shall have no authority under this section or section 18 to declare unlawful an act or practice on the grounds that such act or practice is unfair unless the act or practice causes or is likely to cause substantial injury to consumers which is not reasonably avoidable by consumers themselves and not outweighed by countervailing benefits to consumers or to competition." (Emphasis added.)

Section 5 provides that "Unfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce, are hereby declared unlawful."

Section 5 of the FTC Act contains two prongs -- unfairness and deception. The word "deceptive" in Section 5 has meaning in both common and legal usage. It gives persons and businesses some notice as to what actions may subject them to enforcement actions. It provides limits to FTC action.

In contrast, the word "unfair" in Section 5 lacks meaning. Whether or not a certain activity is unfair varies from person to person, group to group, business to business, and FTC regulator to FTC regulator. It does not put businesses on notice. It does not limit FTC action.

The task of developing a collective determination as to what activities are unfair, and should be subject to prohibition by law, is inherently legislative. In democratic societies, this task is the province of the elected legislature.

However, this bill merely imposes limitations upon the FTC's authority to find some practice to be unfair.

4/28. Rep. Michael Burgess (R-TX) introduced HR 5093 [LOC | WW], a bill to limit many FTC Act Section 5 consent orders to eight years duration. There are no cosponsors.

This bill is titled the "Technological Innovation through Modernizing Enforcement Act" or the "TIME Act".

The Federal Trade Commission (FTC) regulates in substantial part by bringing or threatening judicial or administrative actions alleging violation of the FTC Act, followed by entering into consent agreements. The targets of FTC regulation are often information technology companies in sectors in which the technologies and business models are fast changing. However, the consent agreements typically have durations that render their terms irrelevant long before their expiration.

This bill would amend Section 5 of the FTC Act (15 U.S.C. § 45) to provide that "Any consent order entered into by the Commission shall include a termination clause that the consent order shall expire not later than 8 years after the date on which the consent order is entered into, unless such consent order relates to alleged fraud by the entity subject to the consent order and requires a time limit longer than 8 years based on the factors described in this subsection."

The bill adds that "In determining the time limit for any termination clause, the Commission shall consider each of the following factors: (1) The impact of technological progress on the continuing relevance of the consent order. (2) Whether there is reason to believe that the entity would engage in activities that violate this section without the consent order 8 years after the consent order is entered into by the Commission."

4/28. Rep. Mike Pompeo (R-KS) introduced HR 5118 [LOC | WW], a bill to limit the ability of the Federal Trade Commission (FTC) to engage in arbitrary and non-transparent regulation by informal statements and guidances, followed by consent decrees.

The FTC often regulates, and constructs entire regulatory regimes, out of Section 5 of the FTC Act (15 U.S.C. § 45) and its statements or guidances that given meaning to the vague language of Section 5. These statements and guidances are not the product of a formal rulemaking proceeding, and are not final orders subject to judicial review. And then, no one has standing to judicially challenge the consent decrees.

That is, rather than obtaining from the Congress a specific prohibition, and then enforcing that prohibition, and rather than promulgating a specific prohibition through a rule making proceeding, the FTC often issues a statement or guidance, and then brings enforcement actions based upon those statements or guidances. This raises procedural fairness and transparency issues.

This bill is awkwardly titled the "Solidifying Habitual and Institutional Explanations of Liability and Defenses Act" or the "SHIELD Act". The original cosponsors are Rep. Michael Burgess (R-TX), Rep. Markwayne Mullin (R-OK), Rep. Gregg Harper (R-MS), Rep. Leonard Lance (R-NJ), Rep. Marsha Blackburn (R-TN).

This bill would amend Section 18(a) of the FTC Act, which is codified at 15 U.S.C. § 57a(a), to provide that "No guidelines, general statements of policy, or similar guidance issued by the Commission shall confer any rights upon any person, State, or locality, nor shall operate to bind the Commission or any person, State, or locality to the approach recommended in such guidelines, general statements of policy, or similar guidance. In any enforcement action, the Commission shall prove a violation of a provision of law enforced by the Commission."

Moreover, the bill provides that the FTC "may not base an enforcement action on, or execute a consent order based on, acts or practices that are alleged to be inconsistent with any such guidelines, general statements of policy, or similar guidance, unless the acts or practices violate a provision of law enforced by the Commission."

It also provides that "Compliance with any guidelines, general statement of policy, or similar guidance issued by the Commission may be used as evidence of compliance with the provision of law under which the guidelines, general statement of policy, or guidance was issued."

The method of regulation addressed by this bill raises several concerns by its critics. First, these guidances often adopt broad value based principles that are legislative in scope, but which are not enacted by a legislature. A legislative process would be more open and transparent. And, legislatures are better at aggregating and weighing diverse societal views than the government lawyers who run regulatory agencies.

Regulation by guidance also evades the procedural safeguards provided by the Magnuson Moss Act and the Administrative Procedure Act. In particular, there is no opportunity for affected entities to seek judicial review.

Also, compared to a written statute or written rules, the guidance and consent decree mode of regulation makes it substantially more difficult for businesses to know what activities may or may not subject them to enforcement actions. That is, the FTC process addressed by this bill makes it hard for businesses to know what the law is.

4/28. Rep. Brett Guthrie (R-KY) and Rep. Michael Burgess (R-TX) introduced HR 5109 [LOC | WW] on April 28, 2016. Its full title is "Clarifying Legality and Enforcement Action Reasoning Act", or "CLEAR Act".

This bill would amend Section 5 of the Federal Trade Commission Act, which is codified at 15 U.S.C. § 45, to provide that the Federal Trade Commission (FTC) "shall ... submit a report to Congress on investigations with respect to unfair or deceptive acts or practices in or affecting commerce"

These reports must disclose the number of investigations commenced, the number closed "closed with no official agency action, and "the disposition of such investigations, if such investigations have concluded and resulted in official agency action".

These report must also disclose "for each such investigation that was closed with no official agency action, a description sufficient to indicate the legal analysis supporting the Commission’s decision not to continue such investigation, and the industry sectors of the entities subject to each such investigation."

4/28. Rep. Gus Bilirakis (R-FL) and others introduced HR 5098 [LOC | WW], a bill to require that the Federal Trade Commission (FTC) disclose its annual agenda in advance.

This bill is titled the "FTC Robust Elderly Protections and Organizational Requirements to Track Scams Act" or "FTC REPORTS Act".

The original cosponsors are Rep. Michael Burgess (R-TX), Rep. Gregg Harper (R-MS), Rep. Leonard Lance (R-NJ), Rep. Marsha Blackburn (R-TN), Rep. Markwayne Mullin (R-OK), and Rep. Mike McCaul (R-TX).

This bill would require the FTC to prepare annually for Congressional committees the FTC's "plan for the next calendar year describing the projected activities".

This plan must contain the FTC's "policy priorities", "Any rulemakings projected to be commenced", "Any plans to develop guidelines or other non-regulatory guidance documents", "Any plans to restructure the Commission or establish or alter working groups", and "Any planned projects or initiatives of the Commission, including workshops, conferences, and reports".

The bill also contains some language requiring reporting specific to "elder fraud".

The bill is silent regarding the consequences of failing to comply with its requirements. For example, the bill does not state whether failure to comply would create any recourse for parties affected by non-disclosed rulemakings or adjudications.

4/29. Rep. Mike Pompeo (R-KS) introduced HR 5136 [LOC | WW], the "Revealing Economic Conclusions for Suggestions Act" or the "RECS Act".

This bill would amend 15 U.S.C. § 46(f), which provides that the Federal Trade Commission (FTC) has the "power ... To make public from time to time such portions of the information obtained by it hereunder as are in the public interest; and to make annual and special reports to the Congress and to submit therewith recommendations for additional legislation; and to provide for the publication of its reports and decisions in such form and manner as may be best adapted for public information and use".

This bill would qualify this by providing that the FTC "shall not submit any recommendations for legislative or regulatory action without an economic analysis by the Bureau of Economics of the Commission sufficient to demonstrate that the Commission has identified a problem it determines should be addressed, including the rationale for the Commission's determination that private markets or public institutions could not adequately address the issue, and that its recommended legislative or regulatory action is based on a reasoned determination that the benefits of the recommended action outweigh its costs".

This is a limited bill. Section 46(f) is does not confer any rulemaking or adjudicative authority upon the FTC. Hence, this bill, if enacted, would impose no requirements upon the FTC in rulemaking proceedings or adjudications. The FTC would remain free to act without resort to economic analysis, and without conducting any cost benefit analysis.

However, the FTC builds regulatory regimes out of Section 5 of the FTC Act (15 U.S.C. § 45), which provides very little guidance or notice. It then often issues no rules. Rather, it conducts adjudications. And, in so doing, it sometimes follows the recommendations contained in its reports.

4/28. Rep. Susan Brooks (R-IN) introduced HR 5097 [LOC | WW], the "Start Taking Action on Lingering Liabilities Act" or the "STALL Act".

This bill would amend the FTC Act to provide that certain Federal Trade Commission (FTC) investigations automatically terminate six months after the last communication sent by the FTC. The FTC can extend an investigation either by sending another communications within six months of the last, or by Commission vote.

The bill provides that "a covered investigation shall terminate at the expiration of the six-month period beginning on the date on which a covered verifiable written communication is sent by the Commission".

This bill defines a "covered investigation" as "an investigation conducted pursuant to this section in which the Commission has notified the person that is the subject of the investigation by verifiable written communication".

It defines a "covered verifiable written communication" as "a verifiable written communication relating to an investigation conducted pursuant to this section that is sent to the person that is the subject of the investigation."

The original cosponsors are Rep. Gregg Harper (R-MS), Rep. Leonard Lance (R-NJ), Rep. Pete Olson (R-TX), Rep. Mike Pompeo (R-KS), and Rep. Michael Burgess (R-TX).

The House will meet at 10:00 AM for morning hour, and at 12:00 NOON for legislative business. See, House Majority Leader's schedule.

The Senate will meet at 10:00 AM.

8:30 - 10:00 AM. The Center for Strategic and International Studies (CSIS) will host a panel discussion titled "Cybersecurity After Information Sharing". See, notice. Location: CSIS, 1616 Rhode Island Ave., NW.

9:00 - 10:30 AM. The Information Technology and Innovation Foundation (ITIF) will host a panel discussion titled "What Happens When Laws Become Open Data?". The speakers will include Jessica Seale (staff of Sen. Jon Cornyn (R-TX)). Free. Open to the public. Webcast. Breakfast will be served. See, notice. Location: ITIF/ITIC, Suite 610A, 1101 K St., NW.

10:00 AM. The House Commerce Committee's (HCC) Subcommittee on Commerce, Manufacturing and Trade will hold a hearing titled "Legislative Hearing on 17 FTC Bills". The witnesses will be __. Webcast. See, notice. Location: Room 2123, Rayburn Building.

10:00 AM. The House Appropriations Committee (HAC) will meet to mark up several bills, including the FY 2017 Commerce, Justice, and Science Appropriations Bill. See, notice. Location: Room 2359, Rayburn Building.

10:00 AM. The House Science Committee will meet to mark up HR ___, a yet to be introduced bill to be titled the "Networking and Information Technology Research and Development Modernization Act of 2016". Webcast. See, notice. Location: Room 2318, Rayburn Building.

10:00 AM. The Senate Commerce Committee (SCC) will hold a hearing titled "Examining the Multistakeholder Plan for Transitioning the Internet Assigned Number Authority". Webcast. See, notice. Location: Room 253, Russell Building.

10:00 AM. The Senate Appropriations Committee's (SAC) Subcommittee on Defense will meet to mark up the Defense Appropriations Act for Fiscal Year 2017. Audio webcast. See, notice. Location: Room 192, Dirksen Building.

10:00 - 11:00 AM. The Brookings Institution (BI) will host a webcast only panel discussion titled "Implementing the European Union's Digital Single Market Strategy". See, notice.

11:00 AM. The House Small Business Committee will hold a hearing titled "The Sharing Economy: A Taxing Experience for New Entrepreneurs, Part I". Webcast. See, notice. Location: Room 2360, Rayburn Building.

11:00 AM. The Senate Appropriations Committee's (SAC) Subcommittee on Homeland Security will meet to mark up the Homeland Security Appropriations Act for Fiscal Year 2017. Audio webcast. See, notice. Location: Room 138, Dirksen Building.

12:00 NOON - 1:00 PM. The American Bar Association (ABA) will host a webcast panel discussion titled "FTC Big Data Report -- Summary and Considerations". The speakers will be Andrea Arias (FTC), Richard Lawson (Manatt), Sheila Colclasure (Acxiom), Emily Schlesinger (Microsoft), and Danny Sokol (University of Florida law school). Prices vary. No CLE credits. See, notice.

12:30 - 2:00 PM. The American Bar Association (ABA) will host a webcast panel discussion titled "Fast Forward: Hot Technology Law Topic". The speakers will be Ruth Hill Bro, David Bodenheimer (Crowell & Moring), Karli Swift (Baker Donelson), Steven Teppler (Abbott Law Group), Lucy Thomson (Livingston), and Stephen Wu (Silicon Valley Law Group). Prices vary. CLE credits. See, notice.

12:00 NOON - 1:30 PM. The Federal Communications Bar Association's (FCBA) Wireline Committee will host an event titled "Third Lifeline Reform Order: Legal and Implementation Issues". No webcast. CLE credits. See, notice. Location: Wilkinson Barker Knauer, Suite 800, North Tower, 1800 M St., NW.

1:50 - 2:15 PM. Andy Ozmint (DHS, National Protection and Programs Directorate, Office of Cybersecurity) will give a speech titled "Protecting Your Cyber Secrets" at a day long conference titled "Middle Market Summit" hosted by the Wall Street Journal and the U.S. Chamber of Commerce (USCC). See, notice. Location: USCC, 1615 H St., NW.

2:00 PM. The House Oversight and Government Reform Committee's Subcommittee on the Interior will hold a hearing titled "Examining the Future of Recreation.gov". The witnesses will be __. Webcast. See, notice. Location: Room 2247, Rayburn Building.

2:00 - 3:00 PM. The Brookings Institution (BI) will host an event titled "A preview of the eighth U.S.-China Strategic and Economic Dialogue". The speaker will be Nathan Sheets (Department of the Treasury). See, notice. Location: BI,  1775 Massachusetts Ave., NW.

2:30 PM. The Senate Intelligence Committee (SIC) will hold a closed hearing on undisclosed matters. No webcast. See, notice. Location: Room 219, Hart Building.

3:00 PM. The House Rules Committee (HRC) will meet to adopt a rule for consideration of S 2012 [LOC | WW], the "Energy Policy Modernization Act of 2016". See, notice. Location: Room H-313, Capitol Building.

4:00 PM. The Computer and Communications Industry Association (CCIA) Europe will host a news briefing in advance of the May 25 EU tech policy announcements. The call in number in the U.S. is 1-866-398-2885. The passcode is 862670#.

The House will meet at 10:00 AM for morning hour, and at 12:00 NOON for legislative business. See, House Majority Leader's schedule.

9:00 AM. The House Oversight and Government Reform Committee will hold a hearing titled "Federal Agencies’ Reliance on Outdated and Unsupported Information Technology: A Ticking Time Bomb". The witnesses will be __. Webcast. See, notice. Location: Room 2157, Rayburn Building.

9:30 AM. The House Appropriations Committee's (HAC) Subcommittee on Financial Services and General Government will meet to mark up the Financial Services Appropriations Bill, FY 2017. This bill contains appropriations for the Federal Communications Commission (FCC), Federal Trade Commission (FTC), Securities and Exchange Commission (SEC), Privacy and Civil Liberties Oversight Board (PCLOB), Department of the Treasury, most of the Executive Office of the President, the judicial branch, and others government. See, notice. Location: Room 2358-C, Rayburn Building.

10:00 AM. The House Commerce Committee's (HCC) Subcommittee on Health will hold a hearing titled "Examining Cybersecurity Responsibilities at HHS". See also, HR 5068 [LOC | WW], the "HHS Data Protection Act". The witnesses will be __. Webcast. See, notice. Location: Room 2123, Rayburn Building.

10:00 AM. The Senate Foreign Relations Committee's Subcommittee on East Asia, the Pacific, and International Cyber Security will hold a hearing titled "International Cybersecurity Strategy: Deterring Foreign Threats and Building Global Cyber Norms". Webcast. See, notice. Location: Room 419, Dirksen Building.

10:00 AM. The Senate Homeland Security and Governmental Affairs Committee will meet to mark up bills, and drafts of yet to be introduced bills, including S __, the "DHS Accountability Act of 2016", S __, the "Federal Information Systems Safeguards Act of 2016", S 461 [LOC | WW], the "Cross-Border Trade Enhancement Act of 2015", and S 2852 [LOC | WW], the "Open Government Data Act". See, notice. Location: Room 342, Dirksen Building.

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

5:30 PM. The Federal Communications Bar Association's (FCBA) Young Lawyers Committee will host an event titled "Co-Chair Election, Annual Planning Meeting, and Happy Hour". No webcast. See, notice. Location: Hogan Lovells, 555 13th St., NW.

The House will meet at 9:00 AM for legislative business. See, House Majority Leader's schedule.

Supreme Court conference day. See, October Term 2015 calendar.

8:25 AM. The Digital Government Institute will host a day long event titled "Cyber Security Conference & Expo". Prices vary. No webcast. See, notice. Location: Pavilion Room, Ronald Reagan Building, 1300 Pennsylvania Ave.,  NW.

9:00 AM. The House Oversight and Government Reform Committee will hold a hearing titled "Social Security Administration: Information Systems Review". The witnesses will be __. Webcast. See, notice. Location: Room 2154, Rayburn Building.

10:00 AM. The Senate Judiciary Committee (SJC) will hold an executive business meeting. The agenda includes mark up of S 356 [LOC | WW], the "Electronic Communications Privacy Act Amendments Act of 2015". Webcast. See, notice. Location: Room 226, Dirksen Building.

10:30 AM. The Senate Appropriations Committee (SAC) will meet to mark up the Defense Appropriations Act for Fiscal Year 2017 and the Homeland Security Appropriations Act for Fiscal Year 2017. Audio webcast. See, notice. Location: Room 106, Dirksen Building.

1:00 PM. The U.S. Telecom will host a webcast presentation titled "Cisco’s OpenStack NFVi and Elastic Services Controller". The speakers will be Matt Gillies and Bryn Pound. Free. See, notice.

2:00 PM. The House Small Business Committee will hold a hearing titled "The Sharing Economy: A Taxing Experience for New Entrepreneurs, Part I". Webcast. See, notice. Location: Room 2360, Rayburn Building.

2:00 PM. The Senate Intelligence Committee (SIC) will hold a closed hearing on undisclosed matters. No webcast. See, notice. Location: Room 219, Hart Building.

The House will not meet. See, House Majority Leader's schedule.

12:00 NOON - 1:00 PM. The American Bar Association (ABA) will host an on site and webcast panel discussion titled "Fundamentals of Antitrust Economics Series: Vertical and Coordinated Effects". The speakers will be Erik Hansen (Allen & Overy) and Debra Aron (Navigant Economics). Prices vary. No CLE credits. See, notice. Location: Allen & Overy, 1101 New York Ave., NW.

The House will not meet the week of May 30, 2016 through June 3, 2016. See, House Majority Leader's 2016 calendar.

The Senate will not meet.

Memorial Day. This is a federal holiday. See, Office of Personnel Management's (OPM) 2016 calendar of federal holidays.

The House will not meet.

The Senate will not meet.

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